IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kirk B. Burkley, Todd L. Kilgore : 

and Jeffrey Diurba :

:

 v. : No. 37 C.D. 2019

: Argued: October 4, 2019

Council of the City of Pittsburgh, :

:

Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: October 24, 2019

The Council of the City of Pittsburgh (City Council) appeals the order 

of the Allegheny County Court of Common Pleas overruling City Council’s vote to 

not enact a Resolution for the nomination submitted by Kirk B. Burkley, a member 

of the Department of City Planning, and landowners Todd L. Kilgore and Jeffrey 

Diurba (collectively, Nominators) to expand the boundaries of the Mexican War 

Streets National Historic District (District) in the City and remanding the matter to 

the City Council to approve the Resolution. We affirm.

On October 2, 2012, Nominators submitted the required form to the 

City’s Department of City Planning under the City’s Code of Ordinances (Code) to 

expand the District.1 See Reproduced Record (R.R.) at 14a-59a. On October 15, 

 

1 Section 1101.03(a)(1)(a)(3) and (6) of the Code states, in relevant part:

(Footnote continued on next page...)
2

2012, the Director of City Planning notified property owners within the proposed 

expanded area of the District of the nomination and informed them of a public 

hearing for comment regarding the nomination. Id. at 60a. On November 8, 2012, 

the City’s Historical Review Commission (HRC) made a preliminary 

determination of the validity of the proposed expansion in that it meets one of the 

 

(continued...)

Nomination of an area . . . for consideration and designation as a 

. . . Historic District . . . shall be submitted to the Historical 

Review Commission [(HRC)] on a form prepared by the [HRC], 

and may be submitted by any of the following:

* * *

3. A member of the City Planning Commission.

* * *

6. In the case of a nomination as a Historic District, by 

community-based organizations . . . accompanied by a petition 

signed by the owners of record of twenty-five (25) percent of the 

properties within the boundaries of the proposed District[.]” 

R.R. at 2a. The form submitted herein states, in pertinent part:

This nomination is being made by a member of the Department of 

City Planning. However, the two community groups, Central 

Northside Neighborhood Council and Mexican War Streets 

Society have a combined membership of over 300. Both CNNC 

and MWSS have championed this application. With 750 

households in the National Historic District, a membership of 300 

supporting this application through their community based 

organizations would suggest that the 25% threshold has been 

met[.]

Id. at 19a. The nomination was signed by Burkley, Barbara Talerico, CNNC’s Treasurer, and 

Paul Johnson, MWSS’s President. Id. at 20a.
3

historical criteria for approval and has “historical integrity,” and that the HRC 

would take further public comment at their December 5, 2012 monthly public 

hearing. Id. at 82a. At the conclusion of its December 5, 2012 public hearing, the 

HRC issued the following: “Recommendation: The proposed Mexican War 

Streets Historic District expansion with revised boundaries should be listed as 

a City designated historic district under Section 1101.04(b)(3).[2]” Id. at 84a 

(emphasis in original).

On December 10, 2012, the City’s Department of Planning sent the 

HRC’s recommendation to the City’s Planning Commission and a copy to the 

City’s Solicitor, Assistant Solicitor, and Councilman Daniel Lavelle, the 

representative for Pittsburgh District 6. R.R. at 132a. On January 8, 2013, January 

22, 2013, and February 5, 2013, the City’s Planning Commission held public 

hearings on the HRC’s recommendation to expand the District. Id. at 133a-152a. 

At the conclusion of the February 5, 2013 meeting, the City’s Planning 

Commission unanimously approved a motion: “That the Planning Commission [] 

provides City Council with a positive recommendation that the proposed [District] 

Expansion, with the original National Historic Registry boundaries and should be 

listed as part of the Historic District.” Id. at 151a, 247a-249a.

 

2 Section 1101.01(b)(3) of the Code states, in relevant part:

The [HRC] shall limit its consideration to the following criteria in 

making a determination on a nomination of an area . . . for 

designation by ordinance as a . . . Historic District[.]

(3) Its exemplification of an architectural type, style or design 

distinguished by innovation, rarity, uniqueness, or overall quality 

of design, detail, materials, or craftsmanship[.]

R.R. at 6a.
4

On February 7, 2013, the Director of City Planning sent Nominators a 

letter informing them “that the City’s Planning Commission has made a 

recommendation to City Council to expand the [] District.” R.R. at 155a. In 

relevant part, the letter stated:

[T]he [HRC], after considering historic criteria and 

hearing public testimony, decided to recommend to City 

Council that the district be expanded, but with a reduced 

boundary. . . . On February 5, 2013, the Planning 

Commission decided to recommend to City Council that 

the district be expanded using the original boundary that 

was submitted with the nomination[.]

Since the HRC and the Planning Commission have made 

their recommendations, the matter will now be taken to 

City Council, who will vote on the expansion of the 

historic district within one hundred twenty (120) days. 

Before any vote is taken, Council is required to hold 

public hearings and take public comment as well. Please 

expect to receive further communications on the timing 

of these hearings directly from City Council.

Id. Again, a copy of the letter was sent to the City’s Solicitor, Assistant Solicitor, 

and Councilman Lavelle, the representative for Pittsburgh District 6. Id.

On March 5, 2013, at City Council’s Regular Meeting, a “Resolution 

providing for the designation as an Historic District under Section 1101.03 of [the 

Code] that certain district known as the Mexican War Streets Historic District 

Expansion”3 was “[r]ead and referred” to the City Council’s Land Use and 

Economic Development Committee. R.R. at 156a, 157a. On March 13, 2013, a 

motion was passed for a hearing on the Resolution by the Committee on Land Use 

and Economic Development, and on June 17, 2013, a public hearing was held on 

 

3

See R.R. at 158a-178a.
5

the Resolution. Id. at 156a, 157a, 251a, 264a, 265a. On June 19, 2013, City 

Council approved a motion to read, receive, and file a Report of the Committee on 

Land Use and Economic Development for a negative recommendation with respect 

to the Resolution. Id. at 156a, 286a. On June 25, 2013, the City Council voted 

unanimously to not enact the Resolution. Id. at 156a, 286a.

On July 24, 2013, Nominators filed a statutory appeal in the trial court 

alleging, inter alia, that City Council failed to hold a public hearing on the 

Resolution within 120 days of its receipt of the HRC’s December 5, 2012 

recommendation and the City’s Planning Commission’s February 5, 2013 

recommendation to expand the boundaries of the Historic District as required by 

Section 1101.03(i)(4) of the Code.4 Nominators asserted that, as a result of City 

Council’s failure to act within the requisite 120 days of receipt of the foregoing 

recommendations, the Resolution was deemed approved by City Council pursuant 

to Section 1101.03(j)(3) of the Code.5 Specifically, Nominators claimed that “[t]he 

deadline for City Council to hold the required public hearing pursuant to [] Code 

 

4 Section 1101.03(i)(4) of the Code states, in pertinent part, “City Council shall vote on 

the designation of a nominated district . . . within one hundred twenty (120) days of Council’s 

receipt of the recommendations of the [HRC] and the City Planning Commission.” R.R. at 6a.

5 Section 1101.03(j)(3) of the Code states:

Where Council fails to render its decision within the period 

required by this subsection, or fails to hold the required public 

hearing within one hundred twenty (120) days from the date of the 

[HRC] and the Planning Commission’s recommendations, the 

failure of Council to act shall be a deemed approval if both the 

[HRC] and the Planning Commission gave affirmative 

recommendations for the historic designation.

R.R. at 6a.
6

§1101.03(j)(3) was June 5, 2013, in that said date is 120 days from the later of the 

affirmative recommendations,” and that “[t]he [R]esolution for expansion of the [] 

Historic District is deemed approved pursuant to [] Code §1101.03(i)(4) because 

City Council failed to vote on the designation of [the] nominated district within 

120 days of Council’s receipt of the recommendations of the [HRC] and the City 

Planning Commission.” R.R. at 295a, 296a. Following the filing of briefs and oral 

argument, the trial court issued an order that “overturned” City Council’s “decision 

. . . to deny the Resolution” and remanded the matter “to City Council for approval 

of the Resolution.” Id. at 409a.6 City Council then filed the instant appeal.7

 

6 The trial court explained the rationale for its order, in relevant part, as follows:

The Court interprets §1101.03(i)(4) to provide that the 120-

day time limit begins when City Council receives actual notice that 

both the Planning Commission and the HRC have recommended a 

historic designation, not when a quorum of City Council 

acknowledges such notice. With respect to what constitutes 

effective notice, the City Code does not explicitly require that 

receipt be by a quorum of City Council, nor does it state that 

receipt by one Councilperson is sufficient. In the present case, it is 

clear that a Councilperson, as well as the City Solicitor and an 

Assistant City Solicitor[, attorneys who represent the City’s and 

City Council’s interests], received a copy of a February 7, 2013 

correspondence indicating that the Planning Commission had 

recommended the Nomination. This correspondence also advised 

that City Council would vote on the proposed expansion within 

120 days. The Court finds that a reasonable definition of “receipt” 

includes the present circumstances, where a Councilperson, as well 

as two attorneys who represent the City, were served with notice 

via a correspondence that both the HRC and the Planning 

Commission had rendered affirmative recommendations, and 

further where the correspondence expressly states that a decision 

would be rendered within 120 days. To accept City Council’s 

definition of “receipt” would open the door to absurd results, 

where City Council could let months pass without publicly 

acknowledging recommendations made by the HRC and the 

(Footnote continued on next page...)
7

 

(continued...)

Planning Commission, thus tolling, potentially indefinitely, the 

clear 120-day requirement imposed by §1101.03(j)(3) and 

§1101.03(i)(4). Accordingly, for the reasons discussed above, the 

Court holds that the date that City Council received affirmative 

recommendations from the HRC and the Planning Commission 

was February 7, 2013, the date that a copy of the correspondence 

regarding the Planning Commission’s recommendation was sent to 

a City Councilperson, the City Solicitor, and an Assistant City 

Solicitor.

City Council was in receipt of the affirmative

recommendations of the HRC and the Planning Commission on 

February 7, 2013. Accordingly, the June 17, 2013 public hearing 

occurred 130 days after City Council’s receipt of the 

recommendations, City Council’s June 19, 2013 initial vote 

occurred 132 days after receipt, and City Council’s June 25, 2013 

decision was rendered 138 days after receipt. In any case, City 

Council failed to act within 120 days of receipt of the affirmative 

recommendations of the HRC and the Planning Commission. 

Therefore, City Council’s failure to act within the requisite 120 

days resulted in the deemed approval of the Resolution, and City 

Council’s decision to not approve the Resolution was in error. 

This Court will remand this matter to City Council for approval of 

the Resolution for Expansion of the [Historic District].

R.R. at 407a-408a.

7 As a preliminary matter, because the trial court’s order remands the matter to City 

Council to approve the Resolution, by January 24, 2019 order, this Court directed the parties to 

address the appealability of the trial court’s order in their principal briefs on the merits citing 

Pa. R.A.P. 311(f). Pa. R.A.P. 311(f) states, in relevant part:

An appeal may be taken as of right from: (1) an order of a 

common pleas court . . . remanding a matter to an administrative 

agency or hearing officer for execution of the adjudication of the 

reviewing tribunal in a manner that does not require the exercise of 

administrative discretion; or (2) an order of a common pleas court 

. . . remanding a matter to an administrative agency or hearing 

(Footnote continued on next page...)
8

In this appeal,8 City Council claims that the trial court erred in 

determining that City Council failed to act within 120 days of its receipt of the 

recommendations of the HRC and the City’s Planning Commission as required by 

Section 1101.03(i)(4) of the City’s Code and that the Resolution was deemed 

approved under Section 1101.03(j)(3) of the Code. Specifically, City Council 

asserts that the City Code directs that the City Clerk has custody of all of the 

papers presented to the City Council, and that City Council’s Rules direct that the 

first order of business of all of its regular meetings includes the presentation of 

letters such as the Director of City Planning’s February 7, 2013 letter notifying the 

parties of the approval of the nomination. Moreover, the Rules provide that a 

quorum consists of a majority of the nine-member Council, which applies to 

regular meetings, and case law requires that Council may only perform official acts 

as a body, see, e.g., Edsall v. Jersey Shore Borough, 70 A. 429, 431 (Pa. 1908), 

 

(continued...)

officer that decides an issue that would ultimately evade appellate 

review if an immediate appeal is not allowed.

In this case, the trial court’s order is clearly appealable because it directs a non-discretionary act 

on remand and the issue would evade appellate review if we were to deny the appeal. But cf. 

Nine Penn Center Association v. City of Philadelphia Board of Revision of Taxes, 669 A.2d 

1047, 1050 (Pa. Cmwlth. 1995) (holding that a trial court order remanding a case to the board of 

revision of taxes to determine the amount of an exemption owed to taxpayers under the Local 

Economic Revitalization Tax Assistance Act, Act of December 1, 1977, P.L. 237, as amended, 

72 P.S. §§4722–4727, based upon the assessed value of improvements to property was not 

appealable under Pa. R.A.P. 311(f) because the determination of the value of real estate involves 

the exercise of discretion).

8

“Because th[e] issue is one of statutory construction, which is a pure question of law, 

our standard of review is de novo and our scope of review is plenary.” Western Pennsylvania 

Annual Conference of the United Methodist Church v. City of Pittsburgh, 188 A.3d 637, 640 n.1

(Pa. Cmwlth. 2018) (citation omitted).
9

and one single member cannot bind the whole. See, e.g., City of Scranton v. 

Feffler, Radetick & Saitta, LLP, 871 A.2d 875 (Pa. Cmwlth. 2005). As a result, the 

copying of the February 7, 2013 letter to a single Councilman cannot be construed 

as Council being “in receipt” of the nomination until a quorum of Council received 

the recommendation through the City Clerk under the Code.

Additionally, City Council submits that there is a conflict between the 

relevant Code provisions because under Section 1101.03(i)(4), Council must act 

within 120 days of receipt of the HRC and Planning Commission 

recommendations, while under Section 1101.03(j)(3), Council must act within 120 

days from the date of the HRC and Planning Commission recommendations. The 

most reasonable interpretation is that the 120 days begin to run after Council’s 

receipt of the HRC’s and Planning Commission’s recommendations. Moreover, 

Council’s interpretation of its own statutes and regulations is entitled to great 

weight and deference when acting reasonably within its authority and this Court 

should not substitute its own judgment for that of Council unless it is exceeding its 

legal authority or it is clearly erroneous. See, e.g., Marcellus Shale Coalition v. 

Department of Environmental Protection, 193 A.3d 447, 462-63 (Pa. Cmwlth. 

2018). 

However, the trial court reasonably held that, pursuant to Section 

1101.03(i)(4) and (j)(3) of the Code, the City must act within 120 days from the 

date of the HRC’s and Planning Commission’s recommendations. That 

interpretation is the only reasonable interpretation that prevents an irreconcilable 

application of these subsections and promotes the legislative intent that City 

Council take prompt action on an approved historic designation. Contrary to 

Council’s assertions, the trial court did not hold that notice of the HRC’s and 
10

Planning Commission’s recommendations by one Councilman was sufficient to 

confer notice on the entire City Council. Rather, the trial court noted that the Code 

does not explicitly require receipt of notice by a quorum of Council and held that a 

reasonable interpretation of “receipt” included the instant circumstances in which a 

Councilman and two Council Attorneys were served with correspondence stating 

that the HRC and Planning Commission had approved the designation and stated 

that Council would render a decision within 120 days. R.R. at 407a-408a. The 

trial court’s holding conforms to the common practice that notice to attorneys 

constitutes notice to their clients.

“[N]otice by a court, board or Commission given to the counsel of a 

party is considered notice to the party. Yeager v. United Natural Gas Co., [176 

A.2d 455 (Pa. Super. 1961)]. Cf. Beekhuis v. Zoning Hearing Board of 

Middletown, [429 A.2d 1231 (Pa. Cmwlth. 1981)] (no valid issuance of notice of 

board’s decision to dismiss appeal attacking the validity of the requirement of a 

minimum of one acre for each single-family dwelling built on property zoned R–2 

residential until appellants’ counsel notified).” Ozark v. Zoning Hearing Board of 

Borough of West Pittston, 507 A.2d 932, 934 (Pa. Cmwlth. 1986).

Under Section 213(a) of the City’s Home Rule Charter, the City 

Solicitor “shall . . . act as attorney for the City as a municipal corporation [and] for 

council . . except when council . . . authorized to do so by this charter chooses to 

use its own counsel[.]” The Director of City Planning’s February 7, 2013 letter 

states that it is “meant to inform [] that the City’s Planning Commission has made

a recommendation to City Council to expand the [] Historic District,” and that 

“[p]reviously, the [HRC] . . . decided to recommend to City Council that the 

district be expanded, but with a reduced boundary.” R.R. at 155a. The letter also 
11

states that “the matter will now be taken to City Council, who will vote on the 

expansion of the historic district within one hundred twenty (120) days,” and 

indicates that copies were sent to a specific Councilman and two of City Council’s 

attorneys, i.e., the City Solicitor and an Assistant City Solicitor. Id. Under these 

circumstances, the trial court did not err in determining that City Council failed to 

act timely under Section 1101.03(i)(4) of the Code, and that the Resolution was, 

therefore, deemed approved under Section 1101.03(j)(3) of the Code.

Moreover, the City Council’s position that a notice is not “received” 

by Council until filed with the City Clerk and presented to a quorum of Council 

members is untenable. There are no such explicit requirements in Section 1101.03 

of the Code and it is unreasonable for this Court to read them into that Section.9 

 

9 As this Court has explained:

Pursuant to the Statutory Construction Act [of 1972], “[t]he 

object of all interpretation and construction of statutes is to 

ascertain and effectuate the intention of the [legislative body]. 

Every statute shall be construed, if possible, to give effect to all its 

provisions.” 1 Pa. C.S. §1921(a). In pursuing that end, we are 

mindful that “when the words of a statute are clear and free from 

all ambiguity, the letter of it is not to be disregarded under the 

pretext of pursuing its spirit.” 1 Pa. C.S. §1921(b). Further, in 

ascertaining and effectuating legislative intent, “we do not 

interpret statutory words or phrases in isolation, but must read 

them with reference to the context in which they appear.”

“Often, the best indicator of legislative intent is the plain 

language of the statute.” It is only when “the words of the statute 

are not explicit” on the point at issue that resort to statutory 

construction is appropriate. 1 Pa. C.S. §1921(c). Additionally, in 

ascertaining legislative intent, the Statutory Construction Act 

“requires a presumption that the [legislative body] did not intend a 

result that is absurd or unreasonable.” 1 Pa. C.S. §1922(1).

(Footnote continued on next page...)
12

See Schaefer v. Commonwealth, 318 A.2d 365, 368 (Pa. Cmwlth. 1974) (“For us to 

adopt the reasoning and reach the result urged by the plaintiff would be ‘to add to 

the statute a requirement which the Legislature did not see fit to include.’ 

Olyphant Borough School District v. American Surety Co., [184 A. 758, 761 (Pa. 

1936)].”).

As explained by the trial court, Council’s interpretation would lead to 

an absurd result because the 120-day limitation in Section 1101.03 would never be 

triggered if the recommendations were never presented to a quorum of Council 

thereby, potentially tolling indefinitely the requirements of Section 1101.03(i)(4) 

and (j)(3). R.R. at 408a. Therefore, the trial court properly rejected Council’s 

proposed interpretation of Code Section 1101.03 by adding requirements not 

explicitly provided therein.

Accordingly, the trial court’s order is affirmed.

MICHAEL H. WOJCIK, Judge

 

(continued...)

In reading the plain language of a statute, “[w]ords and 

phrases shall be construed according to rules of grammar and 

according to their common and approved usage.” 1 Pa. C.S. 

§1903(a). Further, every statute shall be construed, if possible, to 

give effect to all its provisions so that no provision is “mere 

surplusage.” 1 Pa. C.S. §1921(a).

Western Pennsylvania Annual Conference of the United Methodist Church, 188 A.3d at 642-43 

(citations omitted).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kirk B. Burkley, Todd L. Kilgore : 

and Jeffrey Diurba :

:

 v. : No. 37 C.D. 2019

: 

Council of the City of Pittsburgh, :

:

Appellant :

O R D E R

AND NOW, this 24th day of October, 2019, the order of the 

Allegheny County Court of Common Pleas, dated December 12, 2018, is 

AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge