IN THE COMMONWEALTH COURT OF PENNSYLVANIA

CHR Corp., d/b/a Rutter’s, :

Appellant :

:

 v. : No. 1174 C.D. 2021

: Submitted: February 3, 2023

Upper Leacock Township :

Zoning Hearing Board :

and Upper Leacock Township :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WALLACE FILED: May 19, 2023

CHR Corp., d/b/a Rutter’s (CHR), appeals from the decision of the Court of 

Common Pleas of Lancaster County (Common Pleas) dismissing as moot its appeal 

of the June 5, 2019 decision of the Upper Leacock Township (Township) Zoning 

Hearing Board (Board). On appeal, CHR argues Common Pleas erred in 

determining its appeal was moot and that even if its appeal was moot, Common Pleas 

should have considered the merits of its arguments under an exception to the 

mootness doctrine. Upon review, we affirm.

CHR operates a convenience store and gas station on an approximately 

12-acre parcel of land in the Township. Board Dec., 6/5/19, at 2. On January 28, 

2019, CHR submitted a Zoning Application to the Township, pursuant to the 
2

provisions of the Pennsylvania Race Horse Development and Gaming Act (Gaming 

Act),

1

requesting permission to add five video gaming terminals (VGTs) as an 

accessory use to its convenience store.2 Id. 

The Township’s zoning officer denied CHR’s application, because (a) VGTs 

are not an accessory use to a convenience store since they “are not a use customarily 

incidental and subordinate to a convenience store,” and (b) VGTs are permitted 

under the Gaming Act only at truck stops, and CHR’s property does not qualify as a 

truck stop under the Township’s Zoning Ordinance (Ordinance)3 or the Gaming Act. 

Board Dec., 6/5/19, at 3.

CHR appealed the zoning officer’s decision to the Board. By written decision 

dated June 5, 2019, the Board denied CHR’s appeal and upheld the zoning officer’s 

denial of CHR’s application. Id. at 15-16. On July 2, 2019, the General Assembly 

amended Title 53 of the Pennsylvania Consolidated Statutes to provide 

municipalities with a 60-day period within which they could enact a resolution 

prohibiting VGTs within their boundaries.4 See 53 Pa.C.S. § 502. CHR appealed 

1

 4 Pa.C.S. §§ 1101-1904.

2

 Under the Gaming Act, a truck stop establishment may obtain a license to permit VGTs as an 

accessory use. 

3 Upper Leacock Township, Pa. Zoning Ordinance (2015), as amended.

4

53 Pa.C.S. § 502 gave municipalities the ability to prohibit all VGTs within their boundaries,

even if the VGTs had been existing and lawful before the municipality enacted its resolution. See 

53 Pa.C.S. § 502(a)(1)(i), 502 (a)(1)(ii) (“A municipality may, by delivering a resolution of the 

municipality’s governing body to the board no later than 60 days after the effective date of this 

subsection, prohibit the location of an establishment licensee within the municipality as follows: 

(i) Prior to the board approving an application and issuing an establishment license within the 

municipality. (ii) After an establishment license has been issued within the municipality.”); 53 

Pa.C.S. § 502(a)(2) (“An establishment licensee may not be located in a municipality which has 

exercised its option under this subsection.”); 53 Pa.C.S. § 502(c) (“if a truck stop establishment 

has been approved for an establishment license or submits an application and the fees for an 

establishment license . . . and the municipality within which the truck stop establishment is located 

elects to prohibit establishment licenses under subsection (a), the board shall refund the fees to the 

applicant.”).
3

the Board’s decision to Common Pleas on July 3, 2019. Reproduced Record (R.R.) 

at 77a. 

On July 18, 2019, the Township adopted a resolution prohibiting VGTs within 

the Township. Common Pleas’ Op., 9/17/21, at 3. Common Pleas then declined to 

address CHR’s substantive issues on appeal and determined the Township’s 

adoption of a resolution prohibiting VGTs pursuant to the recently enacted 

provisions of 53 Pa.C.S. § 502 meant CHR could not install VGTs at its facility even 

if Common Pleas granted CHR’s appeal. Common Pleas’ Op., 9/17/21, at 3-8. 

Thus, Common Pleas dismissed CHR’s appeal as moot. Id. at 4-8. 

CHR appealed to this Court and argues its appeal is not moot because its 

property rights under the Ordinance to install VGTs have not been resolved and the 

Township could unilaterally rescind its prohibition of VGTs at any time. See 

Appellant’s Br., at 7-9. Even if its appeal is technically moot, CHR argues this Court 

should consider the issues because CHR will suffer detriment without a court’s 

decision on its rights under the Ordinance. Id. at 10-12.

Since “Common Pleas did not take additional evidence in this zoning appeal,” 

this Court’s role “is limited to reviewing the [Board]’s decision, not that of Common 

Pleas.” Dowds v. Zoning Bd. of Adjustment, 242 A.3d 683, 695 (Pa. Cmwlth. 2020) 

(citation omitted). Thus, we evaluate whether the Board committed an error of law 

or abused its discretion. Id. With regard to whether the Board committed an error 

of law, we conduct a de novo review and “are not bound by the legal conclusions of 

the governing body or lower court[].” EQT Prod. Co. v. Borough of Jefferson Hills, 

208 A.3d 1010, 1025 (Pa. 2019) (citation omitted).

Although we review the Board’s decision, not Common Pleas’ decision, we 

note Common Pleas reviewed the Board’s decision using the same standard of 
4

review we must use to review the Board’s decision. In addition, Common Pleas 

considered the mootness issue in the first instance, because the General Assembly 

enacted 53 Pa.C.S. § 502 after the Board issued its decision. Having reviewed this 

matter, we conclude the Honorable Margaret C. Miller appropriately reviewed the 

Board’s decision and correctly applied the mootness doctrine in dismissing CHR’s 

appeal. Accordingly, we affirm Common Pleas’ dismissal of CHR’s appeal as moot

on the basis of Common Pleas’ well-reasoned opinion and order in CHR Corp., d/b/a 

Rutter’s v. Upper Leacock Township Zoning Hearing Board (C.P. Lancaster, Case 

No. CI-19-06292, filed September 17, 2021). 

______________________________

STACY WALLACE, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

CHR Corp., d/b/a Rutter’s, :

Appellant :

:

 v. : No. 1174 C.D. 2021

: 

Upper Leacock Township :

Zoning Hearing Board :

and Upper Leacock Township :

O R D E R 

 AND NOW, this 19th day of May 2023, the order of the Court of Common 

Pleas of Lancaster County, dated September 17, 2021, is AFFIRMED.

______________________________

STACY WALLACE, Judge
ENTERED AND FILED 

PROTHONOTARY' S OFFICE 

LANCASTER, PA 

***Electronically Filed***** 

Sep 17 2021 10:53AM 

Ryan McMinn 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CIVIL 

CHR CORP., d/b/a RUTTER'S 

Appellant 

VS. 

UPPER LEACOCK TOWNSHIP 

ZONING HEARING BOARD 

Appellee 

UPPER LEACOCK TOWNSHIP 

Intervenor 

OPINION

BY: MILLER, J 

September 17, 2021 

No. CI- 19-06292 

LAND USE APPEAL 

The instant matter arises from the July 3, 2019, Notice of Land Use Appeal ("Appeal") 

filed by CHR Corp., d/b/a Rutter's ("Appellant") from the June 5, 2019, decision of the Upper 

Leacock Township Zoning Hearing Board ("ZHB"). For the reasons that follow, the appeal is 

dismissed as moot. 

BACKGROUND 

The property subject to appeal (" Property") is a convenience store with accessory fueling 

pump stations located at 370 West Main Street in Upper Leacock Township, Lancaster County, 

Pennsylvania, The Property is located within the General Commercial Zoning District (" GC 

APPENDIX A 
No. CI- 19-06292 

LAND USE APPEAL 

Zone").' In 2017, the Pennsylvania General Assembly passed Act 2017-52 amending the Race 

Horse Development and Gaming Act with respect to video gaming terminals ("VGTs"). 2 Under 

the Gaming Act, an establishment license may be issued to permit VGTs to be operated as an 

accessory use on the premises of a truck stop establishment. On January 28, 2019, Appellant 

submitted a zoning permit application ("Permit Application") to the Upper Leacock Township 

Zoning Officer, Mark Diemler ("Zoning Officer") requesting permission to install five ( 5) video 

VGTs on the Property as an accessory use. By undated letter, the Zoning Officer denied 

Appellant's Permit Application for the following reasons: 1) VGTs are not an accessory use to a 

convenience store, the principal use at the Property; 2) VGTs are not a use customarily incidental 

and subordinate to a convenience store; and 3) the Property is not a truck stop as defined by the 

Upper Leacock Township Zoning Ordinance ("Zoning Ordinance") or under the Pennsylvania 

State Gaming Act (" Gaming Act"). 3 Appellant appealed the Zoning Officer's denial of the Permit 

Application to the ZHB and a hearing was held on May 1, 2019. The ZHB issued a written decision 

on June 5, 2019, affirming the Zoning Officer's denial of the Permit Application and denying the 

appeal (" ZHB Decision"). 

' See Appellant's Notice of Land Use Appeal, pp. 3-4. 

2 See 4 Pa. C.S. §§ 3101; 58 Pa. Code §§ 1101.1. 

3 The Zoning Officer's letter states that while the Gaming Act permits VGTs at truck stops, under the Zoning 

Ordinance truck stops are a use only permitted in the Light Industrial Zone and not in the GC Zone; thus, finding the 

Property, located in the CG Zone, not a truck stop under the Zoning Ordinance. The Zoning Officer further states that 

the Gaming Act requires a minimum of twenty (20) tractor trailer parking spaces to be provided in order to be 

considered eligible for the location of VGTs at an approved truck stop and the Property only has eighteen ( 18) spots; 

thus, finding the Property not a truck stop under the Gaming Act. 

2 
No. CI- 19-06292 

LAND USE APPEAL 

On July 2, 2019, the Pennsylvania legislature amended Title 53, Municipalities Generally, 

of the Pennsylvania Consolidated Statutes to give municipalities the option to prohibit the location 

and operation of VGTs within their boundaries ("Municipal Option Amendment"). See 53 Pa. C.S. 

§502. Appellant filed the instant Appeal one day later, on July 3, 2019. On July 18, 2019, the ZHB 

adopted a resolution prohibiting VGTs ("VGT Prohibition Resolution") within the boundaries of 

the Township in accordance with the Municipal Option Amendment.4 On July 25, 2019, Upper 

Leacock Township ("Township") filed its Notice of Intervention and on August 12, 2019, the ZHB 

filed the certified record. On September 23, 2019, Appellant filed its Brief in Support of Land Use 

Appeal. On October 22, 2019, the Township filed its Brief of Intervenor and on November 1, 2019, 

Appellant filed its Reply Brief thereto. 

Instantly, Appellant's Appeal raises two issues for the court's consideration as it intends to 

pursue the installation of VGTs on the Property should the ZHB ever rescind the VGT Prohibition 

Resolution. 5First, Appellant claims that the ZHB erred in determining that VGTs are not permitted 

at the Property as an accessory use. Second, Appellant claims that the ZHB erred in assessing 

whether the Property meets the qualifications for issuance of an establishment license under the 

Gaming Act. Accordingly, Appellant asserts that the ZHB erred as a matter of law and abused its 

discretion and thus requests that this court reverse the ZHB Decision that VGTs are not permitted 

by right as an accessory use on the Property. However, the Township argues, and the court agrees, 

that following the adoption of the VGT Prohibition Resolution by the ZHB and the filing of the 

a See Brief of Intervenor Upper Leacock Township, pg. 3-2; Upper Leacock Township Resolution No. 2019-11. 

s See Appellants Brief in Support of Land Use Appeal, pg. 4. 

3 
No. CI- 19-06292 

LAND USE APPEAL 

VGT Prohibition Resolution with the Pennsylvania Gaming Board, the issues raised by Appellant 

in the Appeal are moot. 6Thus, having considered the briefs and arguments of the parties, the court 

must conclude there no longer exists a viable dispute for which the court may grant relief. 

Accordingly, the Appeal must be dismissed as moot. 

DISCUSSION 

The mootness doctrine requires that a court should dismiss an appeal as moot unless there 

is an actual case or controversy at all stages of review. Pilchesky v. Lackawanna County, 88 A.3d 

954, 964 (Pa. 2014); Horsehead Resource Development Company, Inc. v. Department of 

Environmental Protection, 780 A.2d 856 (Pa. Cmwlth. 2001). Further, the mootness doctrine 

requires that an actual controversy must exist at all stages of review, not merely at the time the 

complaint is file. Paradise Materials, Inc. v Paradise Township, 676 A.2d 1314 (Pa. Cmwlth. 

1996). Appeals may be rendered moot by a new legislative enactment which supersedes the statute 

or ordinance under which the action was brought. In re: Gross, 382 A.2d 116 (Pa. 1978); Paradise 

Materials, Inc. v Paradise Township, 676 A.2d 1314 (Pa. Cmwlth. 1996). Principles of mootness 

are applicable in zoning matters, Id.; Benoff v. Zoning Board of Adjustment, 528 A.2d 705 (Pa. 

Cmwlth. 1987). An issue may become moot during the pendency of an appeal due to an 

intervening change in facts of the case. In re Cain, 590 A.2d 291, 292 (Pa. 1991). 

If, while an appeal is pending, an event occurs which renders it impossible for the court to 

grant the request relief, the appeal will be dismissed as moot. Benoff v. Zoning Board of 

6 See Brief of Intervenor Upper Leacock Township, pg. 7. 

4 
No. CI- 19-06292 

LAND USE APPEAL 

Adjustment, 528 A.2d 705 (Pa. Cmwlth. 1987); Commonwealth v. Smith, 486 A.2d 445 (Pa. Super. 

1984). An issue is moot if in ruling upon the issue, the court cannot enter an order that has any 

legal force or effect. Chruby v. Department of Corrections, 4 A.3d 764, 770-71 (Pa. Cmwlth. 

2010). A court will not enter judgments or decrees to which no effect can be given. St. Clair 

Memorial Hospital v. Department of Health, 691 A.2d 1040 (Pa. Cmwlth. 1997). However, even 

if an issue is technically moot, a court may still choose to hear the issue if any one of three 

exceptions apply: ( 1) the issue is a question of great public importance, (2) the issue is capable of 

repetition and apt to elude appellate review, or ( 3) a party to the controversy will suffer some 

detriment due to the decision of the trial court to dismiss on mootness. Chruby v. Department of 

Corrections, 4 A.3d 764, 771 (Pa. Cmwlth. 2010). 

Appellant acknowledges that it is not currently permitted to install VGTs on the Property 

due to the VGT Prohibition Resolution.? Nonetheless, Appellant does not concede that this matter 

is moot. In response to the Township's mootness argument, Appellant claims that the issues 

presented in its Appeal, notwithstanding Appellant's acknowledgment of its current inability under 

state law to install VGTs on the Property, have not changed and the VGT Prohibition Resolution 

did not divest Appellant's Appeal of a case and controversy.$ First, Appellant argues it appealed 

the ZHB Decision to preserve its right to install VGTs in the future if the ZHB rescinds the VGT 

Prohibition Resolution. 9Next, Appellant argues it would suffer prejudice if it fails to pursue the 

I See Appellants Brief in Support of Land Use Appeal, pg. 4; Appellant's Reply Brief, pg. 3. 

8 See Appellant's Reply Brief to Brief of Intervenor, pg. 3. 

9 Id. 

5 
No. CI- 19-06292 

LAND USE APPEAL 

Appeal and the VGT Prohibition Resolution is subsequently rescinded, as Appellant would be 

required to submit a new zoning permit application to install VGTs on the Property. 10 Further, 

Appellant argues by ruling on the appeal, the court will ensure that the parties will not be required 

to relitigate this issue in the future should the VGT Prohibition Resolution ever be rescinded. 11

However, the Township argues and this court agrees, that such a speculative form of relief 

requested by Appellant is abstract in nature and would serve as merely as an advisory opinion 

because the ZHB may never rescind the VGT Prohibition Resolution; thus, rendering the relief 

Appellant seeks as the type of relief the mootness doctrine intended to prevent. 12 The court also 

finds there is currently no case or controversy because the VGT Prohibition Resolution adopted 

by the ZHB currently does not permit the operation of VGTs within the Township; thus, even if 

this court were to reverse the ZHB Decision, the relief requested by Appellant would not produce 

any legal effect because the VGT Prohibition Resolution would still prohibit Appellant from 

installing VGTs. 

Appellant has not claimed that any exception to the mootness doctrine would permit its 

Appeal to remain viable. Nevertheless, the court considered the exceptions and finds that none is 

applicable. This case does not involve conduct which is capable of repetition, yet likely to evade 

judicial review. In re: Application of Milton S. Hershey Medical Center, 595 A.2d 1290 (Pa. Super. 

1991). Nor is it a case in which one of the parties will continue to suffer detriment due to the action 

io Id. 

11 Id. at 3-4. 

"- See Brief of Intervenor of Upper Leacock Township, pg. 8. 

6 
No. CI- 19-06292 

LAND USE APPEAL 

of the ZHB. Commonwealth v. Sal-Mar Amusements, 630 A.2d 1269 (Pa. Super. 1993) (expiration 

of one year closure as nuisance bar does not render appeal moot since finding affects bar owner's 

liquor license and record with the Pennsylvania Liquor Control Board as well as bar owner's 

subsequent efforts to apply for, extend and/or maintain new or existing liquor license.) Lastly, this 

case is not one of the rare instances in which a case will be heard, although moot, due to its great 

public importance. Meyer v. Strouse, 221 A.2d 191 (Pa. 1966); Conti v. Department of Labor and 

Industry, 175 A.2d 56 (Pa. 1961). 

The conclusion that the Appeal is moot becomes inescapable when one considers the 

practical consequences of the decision in this case. Even if the court were to sustain the Appeal, 

that ruling would not affect Appellant's current inability to install VGTs on the Property due to 

the enactment of the VGT Prohibition Resolution. There has been no challenge to the validity of 

the VGT Prohibition Resolution and it remains in force. Thus, a decision in this Appeal will have 

no effect whatsoever. If the court were to render a decision on the merits of this Appeal, it would 

be nothing more than an unwarranted and ill-advised advisory opinion. Okkerse v. Howe, 556 A.2d 

827 (Pa. 1989) (advisory opinions are without legal effect); In re: Condemnation by the 

Commonwealth Department of Transportation, 515 A.2d 102 (Pa. Cmwlth. 1986) (advisory 

opinions are not within the purview of an appellate court's jurisdiction); Courtney v. Ryan Homes, 

Inc., 497 A.2d 938 (Pa. Super. 1985) (courts are not instituted to render advisory opinions). 

7 
No. CI- 19-06292 

LAND USE APPEAL 

Thus, because the court finds Appellant's Land Use Appeal moot and Appellant has not 

established an exception to the mootness doctrine to which this court could address the merits of 

the Appeal, the court must dismiss the Appeal as moot. 

Accordingly, the Court enters the following Order: 

8 
No. CI- 19-06292 

LAND USE APPEAL 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CIVIL 

CHR CORP., d/b/a RUTTER' S 

Appellant 

VS. 

UPPER LEACOCK TOWNSHIP 

ZONING HEARING BOARD 

Appellee 

UPPER LEACOCK TOWNSHIP 

Intervenor 

No. CI- 19-06292 

LAND USE APPEAL 

ORDER

AND NOW, this 15" day of September, 2021, Appellant's Land Use Appeal is DISMISSED 

as moot for the reasons set forth in the foregoing Opinion. 

ATTEST: 

BY THE COURT: `\\\\,,111►►►,, ,/

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MARGARET C. NAL ER 1 °•2

JUDGE o . bn-*n•t 

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Copies to: Helen Gemmill, Esquire — Attorney for Appellant 

Claudie N. Shank, Esquire — Attorney for Appelfd t 

Robert E. Sisko, Esquire — Attorn ey for Appelle TICE OF ENTRY OF ORDER OR DECREE RSUANT TO PA. R.C.P. NO: 236 

William J. Cassidy Jr., Esquire —Attorney for InI 'a TI - THE ATTACHED DOCUMENT 

HAS BEEN FILED IN THIS CASE 

g PROTHONOTARY OF LANCASTER CO., PA 

% DATE: `• -a f