IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William J. Carr, Eileen L. Carr, :

and The Horsham Neighborhood :

Association, :

Appellants :

: No. 1536 C.D. 2016

v. : Argued: June 5, 2017

: 

Horsham Township :

:

v. :

:

Horsham-Blair, L.P. :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JULIA K. HEARTHWAY, Judge 

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: July 10, 2017

This is an appeal from an order of the Court of Common Pleas of 

Montgomery County (trial court) dismissing a land use appeal filed by William J. 

Carr and Eileen L. Carr (Objectors)1challenging the validity of a Horsham 

Township (Township) ordinance. For the reasons set forth below, we reverse the 

trial court’s dismissal of Objectors’ procedural challenges to the ordinance as 

untimely on the ground that Objectors were entitled to a nunc pro tunc appeal, but 

 

1 Although the Horsham Neighborhood Association is also listed in the caption as an appellant,

only the Carrs are appellants. 
2

affirm its dismissal of Objectors’ spot zoning and other substantive challenges to 

the ordinance.

On December 9, 2015, the Township Council enacted Ordinance No. 

2015-8 (the Ordinance). (12/9/15 Township Council Meeting Minutes, 

Reproduced Record (R.R.) at 86a; Ordinance, R.R. at 151a-163a.) The Ordinance 

amended the Township’s zoning ordinances and zoning map to permit a specific 

mixed-use commercial development sought by Horsham-Blair, L.P. (Developer) as 

a conditional use in the GC-2 General Commercial and Highway Commercial 

zoning district and to rezone as GC-2 certain Industrial and R-4 Residential 

properties equitably owned by Developer that adjoined other properties of 

Developer that were already zoned GC-2. (Ordinance, R.R. at 151a-163a; 

11/11/15 Township Council Meeting Minutes, R.R. at 78a-80a.) The mixed-use 

development that Developer intends to build on its GC-2 and rezoned properties 

includes a convenience store with gasoline sales, a pharmacy, and three 

restaurants. (11/23/15 Township Council Hearing Transcript at 4, R.R. at 129a.) 

Objectors were present at the December 9, 2015 Township Council meeting and a 

prior Township Council meeting concerning the Ordinance. (Objectors’ Response 

to Motion to Quash Appeal ¶64, R.R. at 105a; Objectors’ Brief in Opposition to 

Motion to Quash Appeal at 13, R.R. at 119a; 8/8/16 Trial Court Order ¶3; 11/11/15 

Township Council Meeting Minutes, R.R. at 79a.) 

The Ordinance became effective on December 14, 2015, five days 

after its adoption. (Ordinance, R.R. at 155a-156a.) Following the enactment of the 

Ordinance, the Township published legal notices, the second of which appeared on 

December 28, 2015, that described the content of the Ordinance and stated that it 

was adopted on December 9, 2015 and became effective December 14, 2015. 
3

(12/17/15 Township Letter Placing Newspaper Advertisement, R.R. at 188a; 

Published Notice of Ordinance, R.R. at 142a-143a.) These published notices also 

stated:

This notice is intended to provide notification of the adoption 

of the Ordinance listed above and any person claiming a right 

to challenge the validity of the Ordinance must bring a legal 

action within thirty (30) days of the publication of the second 

notice of adoption which will appear in this newspaper on 

December 28, 2015. 

(Published Notice of Ordinance, R.R. at 143a.)

On January 26, 2016, more than 30 days after adoption and effective 

date of the Ordinance, but less than 30 days after the December 28, 2015 second 

published notice, Objectors filed a land use appeal in the trial court challenging the 

validity of the Ordinance. In this appeal, Objectors asserted that the enactment of 

the Ordinance violated the Sunshine Act2and public hearing requirements of the 

Township’s ordinances. (Notice of Land Use Appeal ¶¶14-22, 42-47, R.R. at 15a16a, 19a-20a.) Objectors also asserted that the Ordinance was invalid on the 

ground that it was spot zoning and arbitrarily and capriciously disregarded 

provisions of the Township zoning ordinances protecting residential 

neighborhoods. (Id. ¶¶23-41, 48-51, R.R. at 16a-20a.) 

Developer intervened and filed a motion to quash the appeal. In its 

motion to quash, Developer argued, inter alia, that Objectors’ appeal was barred as 

untimely and that the trial court lacked jurisdiction over Objectors’ claims that the 

Ordinance was spot zoning and arbitrary and capricious because the Pennsylvania 

 

2

65 Pa. C.S. §§ 701-716.
4

Municipalities Planning Code (MPC)3requires that substantive land use challenges 

be filed with the zoning hearing board. In their response to the motion to quash, 

Objectors argued that the appeal was filed within the applicable period, but that if 

it was not, they were entitled to appeal nunc pro tunc because the published notice 

stated that the appeal period was 30 days from December 28, 2016 and created 

confusion as to the appeal deadline. (Objectors’ Response to Motion to Quash 

Appeal ¶¶26-27, R.R. at 93a-94a; Objectors’ Brief in Opposition to Motion to 

Quash Appeal at 8, R.R. at 114a.) On August 8, 2016, the trial court granted 

Developer’s motion to quash the appeal on the ground that Objectors’ procedural 

challenges to the Ordinance were not timely filed and on the ground that it lacked 

jurisdiction over Objectors’ substantive challenges. This appeal followed.

4

In this Court, Objectors argue, as they did before the trial court, that

their appeal was timely filed and that if it was not timely filed, they were entitled to 

a nunc pro tunc appeal. We conclude that the trial court correctly held that 

Objectors’ procedural challenges to the Ordinance were not filed within the 

applicable appeal period. Appeals challenging a land use ordinance based on 

procedural defects in its enactment must be filed within 30 days of the ordinance’s 

 

3 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. Sections 909.1, 916.1, 

and 1002–A of the MPC, cited herein, were added by the Act of December 21, 1988, P.L. 1329. 

Section 108 of the MPC, also cited herein, was added by the Act of July 4, 2008, P.L. 319.

4

The issues in this appeal are all questions of law subject to this Court’s plenary, de novo

review. Day v. Civil Service Commission of Borough of Carlisle, 931 A.2d 646, 650 (Pa. 2007)

(timeliness of appeal is a question of law); Narberth Borough v. Lower Merion Township, 915 

A.2d 626, 634 (Pa. 2007) (same); Brown v. Levy, 993 A.2d 364, 365 n.1 (Pa. Cmwlth. 2010)

(whether the trial court erred in denying leave to appeal nunc pro tunc is a question of law); 

Mazur v. Trinity Area School District, 961 A.2d 96, 101 (Pa. 2008) (whether trial court has 

subject matter jurisdiction over challenge to a particular type of government action is a question 

of law).
5

effective date. 42 Pa. C.S. § 5571.1;5Section 1002-A(b) of the MPC, 53 P.S. § 

11002-A(b);6Streck v. Lower Macungie Township Board of Commissioners, 58 

 

5

Section 5571.1 of the Judicial Code provides in relevant part: 

(a) Applicability; court of common pleas.--

(1) This section shall apply to any appeal raising questions relating to an alleged 

defect in the process of or procedure for enactment or adoption of any ordinance, 

resolution, map or similar action of a political subdivision.

(2) An appeal pursuant to this section shall be to the court of common pleas.

(b) Appeals of defects in statutory procedure.--

(1) Any appeal raising questions relating to an alleged defect in statutory 

procedure shall be brought within 30 days of the intended effective date of the 

ordinance.

(2) Except as provided in subsection (c), it is the express intent of the General 

Assembly that this 30-day limitation shall apply regardless of the ultimate validity 

of the challenged ordinance.

(c) Exemption from limitation.--An appeal shall be exempt from the time 

limitation in subsection (b) if the party bringing the appeal establishes that, 

because of the particular nature of the alleged defect in statutory procedure, the 

application of the time limitation under subsection (b) would result in an 

impermissible deprivation of constitutional rights.

* * *

(e) Burden of proof.--Notwithstanding any other provision of law, an ordinance 

shall not be found void from inception except as follows:

* * *

(2) In the case of an appeal which is exempt from the 30-day time limitation in 

accordance with subsection (c), the party alleging the defect must meet the burden 

of proving each of the following:

* * *

(ii) That there was a failure to substantially comply with statutory procedure 

which resulted in insufficient notification to the public of impending changes in or 

the existence of the ordinance, so that the public would be prevented from 

commenting on those changes and intervening, if necessary, or from having 

knowledge of the existence of the ordinance.

42 Pa. C.S. § 5571.1(a)-(c), (e) (emphasis added).

6

Section 1002-A(b) of the MPC provides:

(b) Challenges to the validity of a land use ordinance raising procedural 

questions or alleged defects in the process of enactment or adoption shall be 

raised by appeal taken directly to the court of common pleas of the judicial 

district in which the municipality adopting the ordinance is located in 

(Footnote continued on next page...)
6

A.3d 865, 870-75 (Pa. Cmwlth. 2012). Objectors did not file their appeal to the 

trial court until January 26, 2016, more than 30 days after the December 14, 2015 

effective date of the Ordinance. In addition, claims that a governmental action is 

invalid because it was taken in violation of the Sunshine Act must be brought 

within 30 days of the discovery of the Sunshine Act violation. 65 Pa. C.S. § 713;

7

Day v. Civil Service Commission of Borough of Carlisle, 931 A.2d 646, 652-53

(Pa. 2007). The alleged Sunshine Act violation occurred no later than December 9, 

2015, when the Ordinance was enacted, and Objectors knew of it at that time 

because they were present at that Township Council meeting. Accordingly, the 30-

day period for filing any Sunshine Act challenge expired on January 8, 2016, 

before Objectors filed their appeal.

Objectors argue that the Township’s published notice extended the 

appeal deadline for challenging the Ordinance. This argument is without merit.

Section 108 of the MPC provides for published notice of the adoption of a land use 

ordinance “once each week for two successive weeks in a newspaper of general 

circulation in the municipality” that advises that “any person claiming a right to 

challenge the validity of the ordinance ... must bring a legal action within 30 days 

 

(continued...)

accordance with 42 Pa. C.S. § 5571.1 (relating to appeals from ordinances, 

resolutions, maps, etc.).

53 P.S. § 11002-A(b).

7

Section 713 of the Sunshine Act provides in relevant part:

A legal challenge under this chapter shall be filed within 30 days from the 

date of a meeting which is open, or within 30 days from the discovery of 

any action that occurred at a meeting which was not open at which this 

chapter was violated, provided that, in the case of a meeting which was 

not open, no legal challenge may be commenced more than one year from 

the date of said meeting.

65 Pa. C.S. § 713.
7

of the publication of the second notice.” 53 P.S. § 10108(b), (c)(3). Section 108 

further provides that “any appeal or action contesting the validity of an ordinance 

based on a procedural defect in the process of enactment ... shall be dismissed, 

with prejudice, as untimely if not filed within the 30th day following the second 

publication of the notice authorized in this section.” 53 P.S. § 10108(d). The

Section 108 appeal deadline, however, applies only to persons who had no prior 

notice of the ordinance and does not alter or extend the appeal deadline of 30 days 

from the effective date set by Section 5571.1 of the Judicial Code and Section 

1002-A(b) of the MPC for those who had notice of the ordinance’s enactment at 

the time of its enactment. 53 P.S. § 10108(h) (“[n]othing in this section shall be 

construed to abrogate, repeal, extend or otherwise modify the time for appeal as set 

forth in section 1002-A, where the appellant was a party to proceedings prior to the 

entry of a decision or otherwise had an adequate opportunity to bring a timely 

action in accordance with section 1002-A to contest the procedural validity of an 

ordinance”); Streck, 58 A.3d at 873-75. Because Objectors had notice of the 

Ordinance’s enactment on December 9, 2015, their appeal was subject to the 

appeal deadlines of Section 5571.1 of the Judicial Code and Section 1002-A(b) of 

the MPC, not the later deadline in the published notice. Streck, 58 A.3d at 873-75.

Objectors also argue that the Judicial Code, MPC and Sunshine Act 

appeal deadlines did not begin to run until January 6, 2016, when Developer filed 

an amended permit application, and that their appeal is exempt from the deadlines 

because application of the deadlines would result in a denial of constitutional 

rights. See 42 Pa. C.S. § 5571.1(c), (e)(2)(ii). These arguments likewise fail. The 

January 6, 2016 amended permit application was not an enactment or amendment 

of the Ordinance and did not alter the Ordinance’s effective date or the fact that the 
8

last meeting at which action was taken on the Ordinance was December 9, 2015. 

Therefore, whatever its effect on Developer’s mixed-use commercial development, 

the amended permit application is irrelevant to the appeal deadlines for challenging 

defects in the Ordinance’s enactment and for raising Sunshine Act violations. 

Moreover, the alleged deficiencies in the Township’s procedures did 

not deny Objectors or the public the opportunity to timely appeal. Objectors had 

notice of the Ordinance and any Sunshine Act violation when the Ordinance was 

enacted on December 9, 2015, as they were present at that Township Council 

meeting. In addition, the alleged defects in the Ordinance’s enactment did not 

impair the public’s ability to file a challenge to the Ordinance. The procedural 

defects asserted by Objectors involve denial of the opportunity to comment at the 

meetings where the Ordinance was being considered, not lack of notice of the 

Ordinance’s content, the meetings or its enactment (Notice of Land Use Appeal 

¶¶14-22, 42-47, R.R. at 15a-16a, 19a-20a), and the Ordinance was adopted at a 

public meeting. (12/9/15 Township Council Meeting Minutes, R.R. at 83a-86a.) 

Because neither Objectors nor the public were denied notice of the Ordinance’s 

enactment, there is no basis for a claim that enforcement of the applicable appeal 

deadlines would result in a deprivation of constitutional rights.

The trial court, however, erred in denying Objectors’ request for nunc 

pro tunc appeal. An appeal filed after the expiration of the deadline is allowed 

nunc pro tunc where the filer shows that extraordinary circumstances involving 

fraud or breakdown in the administrative process caused the delay in filing. Cook 

v. Unemployment Compensation Board of Review, 671 A.2d 1130, 1131 (Pa.

1996); Streck, 58 A.3d at 875; C.S. v. Department of Public Welfare, 879 A.2d 

1274, 1279 (Pa. Cmwlth. 2005). A notice published by the government agency 
9

during the appeal period that states a later appeal deadline constitutes a breakdown 

in the administrative process that supports nunc pro tunc relief. Streck, 58 A.3d at

875; see also Ness v. York Township Board of Commissioners, 81 A.3d 1073, 1082

(Pa. Cmwlth. 2013), app. dismissed as improvidently granted, 105 A.3d 1257 (Pa. 

2014) . 

In Streck, this Court held that although Section 108 of the MPC did 

not extend the deadline imposed by Section 5571.1 of the Judicial Code and 

Section 1002-A(b) of the MPC, appellants challenging an ordinance’s enactment 

on procedural grounds were entitled to nunc pro tunc relief because the 

government agency published a Section 108 notice that stated a different, later 

appeal deadline. 58 A.3d at 875. The Court ruled that where a notice under 

Section 108 was published before the expiration of the appeal period, that notice 

created confusion as to the deadline and an appeal filed more than 30 days after the 

ordinance’s effective date but before expiration of the deadline stated in the 

published notice was timely on nunc pro tunc grounds. Id. The Court explained:

Objectors argue, alternatively, that by undertaking the Section 

108 notices during the 30-day appeal period set by Section 

5571.1 of the Judicial Code, the Township created confusion 

entitling them to a nunc pro tunc appeal. We agree. Objectors 

may have been able, and planning, to appeal under the 30-day 

deadline in accordance with Section 1002-A of the MPC and 

Section 5571.1 of the Judicial Code, when the Township 

suddenly announced a new deadline, i.e., 30 days from July 14, 

2010, the date of the second post-enactment notice. A nunc pro 

tunc appeal is appropriate where there has been a breakdown in 

the administrative process. We conclude that here such a 

breakdown occurred. First, the Section 108 notices did not

explain that the deadline of Section 5571.1 of the Judicial Code 

remained in effect. Second, because the Section 108 notices 

were issued within the 30-day period after enactment of 

Ordinance No. 2010-06, they may be construed as waiving the 
10

30-day deadline in Section 5571.1. For these reasons, we hold 

that Objectors’ appeal was timely under principles of nunc pro 

tunc.

Id. (citation omitted) (emphasis in original). In Ness, this Court reaffirmed the 

holding of Streck that an appellant is entitled to nunc pro tunc relief where he 

appeals before the later deadline stated in a published Section 108 notice, but 

denied nunc pro tunc relief because the appeal was not filed within the appeal 

period set forth in the Section 108 notice. 81 A.3d at 1082. 

This case is indistinguishable from Streck. Here, as in Streck, the 

notice was published before the statutory appeal deadlines expired, the notice 

stated a new, later deadline for “any person claiming a right to challenge the 

validity of the Ordinance” (Published Notice of Ordinance, R.R. at 143a) without 

explaining that it did not apply to persons with prior knowledge of the Ordinance, 

and Objectors filed their appeal after the statutory deadlines expired, but before the 

deadline set in the notice. The trial court’s assertion that Objectors were not 

confused by the published notice (Trial Court Op. at 15-17) is contradicted by the 

record. Objectors argued to the trial court that they understood the published 

notice as giving them until January 27, 2016 to file any appeal challenging the 

Ordinance. (Objectors’ Response to Motion to Quash Appeal ¶¶23-27, R.R. at 

92a-94a; Objectors’ Brief in Opposition to Motion to Quash Appeal at 8-9, R.R. at 

114a-115a.) While Objectors’ legal position on the effect of the Township’s notice 

was without merit, that does not alter the fact that they were confused by the 

notice. Accordingly, as in Streck, Objectors were entitled to a nunc pro tunc

appeal.8 

 

8 Developer argues that the trial court’s dismissal of Objectors’ procedural challenges can be 

affirmed on the alternative ground that Sunshine Act violations cannot be asserted in a land use 

appeal. While Developer raised this argument below in its motion to quash, the trial court did 

(Footnote continued on next page...)
11

Objectors also argue that the trial court erred in dismissing their 

substantive challenges to the Ordinance for lack of jurisdiction. We do not agree. 

Appeals challenging the validity of a land use ordinance on substantive grounds 

must be filed with the zoning hearing board, not in the court of common pleas. 

Sections 909.1(a)(1) and 916.1(a)-(b) of the MPC, 53 P.S. §§ 10909.1(a)(1), 

10916.1(a)-(b).

9

 

The trial court therefore properly dismissed Sections VI-VIII and XI 

of Objectors’ land use appeal for lack of jurisdiction. These sections all state 

substantive challenges, as they challenge the content of the Ordinance and the 

 

(continued...)

not address this issue. Developer cites no provision of the MPC or the Sunshine Act or any case 

law that bars consideration of Sunshine Act violations in a land use appeal. Moreover, even if 

Developer prevailed in this argument, it could not support affirmance of the dismissal of all of 

Objectors’ procedural challenges, as Objectors’ procedural challenges to the Ordinance include 

non-Sunshine Act claims that the Township violated public hearing requirements set forth in 

Township ordinances. (Notice of Land Use Appeal ¶¶42-47, R.R. at 19a-20a.) We therefore 

decline to rule on this question. 

9

Section 909.1(a)(1) of the MPC provides: 

(a) The zoning hearing board shall have exclusive jurisdiction to hear and render 

final adjudications in the following matters:

(1) Substantive challenges to the validity of any land use ordinance, except those 

brought before the governing body pursuant to sections 609.1 and 916.1(a)(2).

53 P.S. § 10909.1(a)(1). Section 916.1 of the MPC provides in relevant part: 

(a) A landowner who, on substantive grounds, desires to challenge the validity 

of an ordinance or map or any provision thereof which prohibits or restricts the 

use or development of land in which he has an interest shall submit the 

challenge either:

(1) to the zoning hearing board under section 909.1(a); or

(2) to the governing body under section 909.1(b)(4), together with a request for 

a curative amendment under section 609.1.

(b) Persons aggrieved by a use or development permitted on the land of another 

by an ordinance or map, or any provision thereof, who desires to challenge its 

validity on substantive grounds shall first submit their challenge to the zoning 

hearing board for a decision thereon under section 909.1(a)(1). 

53 P.S. § 10916.1(a)-(b).
12

development that it approved, rather than the procedures by which the Ordinance 

was enacted. Section VI asserts a claim that the Ordinance is invalid on the ground 

that it constitutes spot zoning. (Notice of Land Use Appeal ¶¶23-27, R.R. at 16a17a.) Spot zoning challenges are substantive challenges to the validity of an 

ordinance. Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board, 

84 A.3d 1114, 1117-20, 1131 (Pa. Cmwlth. 2014); Atherton Development Co. v. 

Township of Ferguson, 29 A.3d 1197, 1203-05, 1214 (Pa. Cmwlth. 2011). 

Sections VII-VIII and XI of Objectors’ land use appeal allege that the Ordinance is 

invalid because the Township arbitrarily and capriciously disregarded substantive 

provisions of its zoning ordinances concerning traffic and residential areas. 

(Notice of Land Use Appeal ¶¶28-41, 48-51, R.R. at 17a-20a.) Claims of arbitrary 

and capricious disregard of other, substantive zoning ordinance provisions are 

likewise substantive validity challenges. Plaxton v. Lycoming County Zoning 

Hearing Board, 986 A.2d 199, 202-03 (Pa. Cmwlth. 2009). 

In contrast, Sections V, IX and X of Objectors’ land use appeal raise 

procedural challenges to the Ordinance. Section V asserts that the Ordinance is 

invalid because it was enacted in violation of the Sunshine Act. (Notice of Land 

Use Appeal ¶¶14-22, R.R. at 15a-16a.) Sections IX and X assert arbitrary and

capricious disregard of public hearing requirements in Township ordinances. (Id.

¶¶42-47, R.R. at 19a-20a.) “Challenges to the validity of a land use ordinance 

raising procedural questions or alleged defects in the process of enactment or 

adoption” of an ordinance must be filed in the court of common pleas, not the 

zoning hearing board. 53 P.S. § 11002-A(b). The trial court therefore had 

jurisdiction to hear Sections V, IX and X of Objectors’ land use appeal.
13

For the foregoing reasons, we reverse the order of the trial court 

insofar as it dismissed Sections V, IX and X of Objectors’ land use appeal, remand 

this case to the trial court for further proceedings on the merits of those challenges, 

and affirm the trial court’s dismissal of Sections VI-VIII and XI of Objectors’ land 

use appeal.

_______________ ____________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William J. Carr, Eileen L. Carr, :

and The Horsham Neighborhood :

Association, :

Appellants :

: No. 1536 C.D. 2016

v. : 

: 

Horsham Township :

:

v. :

:

Horsham-Blair, L.P. :

O R D E R

AND NOW, this 10th day of July, 2017, the order of the Court of 

Common Pleas of Montgomery County (trial court) in the above-captioned matter 

is REVERSED insofar as it dismissed Sections V, IX and X of Appellants’ land 

use appeal and this matter is REMANDED for further proceedings on the merits of 

those challenges. The order of the trial court is AFFIRMED insofar as it dismissed

Sections VI-VIII and XI of Appellants’ land use appeal.

Jurisdiction relinquished.

________ ___________________________

JAMES GARDNER COLINS, Senior Judge