IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of Palmyra :

:

v. :

:

Raymond U. Brandt, : No. 1575 C.D. 2018

Appellant : Argued: September 10, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: October 9, 2019

Raymond U. Brandt (Brandt) appeals from an order of the Court of 

Common Pleas of Lebanon County (trial court). On September 11, 2018, the trial 

court granted judgment on the pleadings in favor of the Borough of Palmyra 

(Borough) and issued an opinion finding Brandt was in violation of the Borough’s 

zoning ordinance after he admitted that he did not appeal the Borough’s zoning 

enforcement notice to the Borough’s zoning hearing board. Trial Court Order, 

9/11/18 at 1, Reproduced Record (R.R.) at 60a; Original Record (O.R.), Trial Court 

Opinion, 9/11/18 at 2 & 4-5; see also Amended Complaint at 5; R.R. at 15a; Answer 

at 3, R.R. at 52a. Thereafter, by order dated October 25, 2018, the trial court assessed 

fines, penalties and attorneys’ fees against Brandt. Trial Court Order, 10/25/18, R.R. 

at 125a. Upon review, we affirm.
2

By letter dated July 8, 2016, the Borough notified Brandt that his 

property was in violation of three provisions of the Borough’s zoning ordinance, and 

that the Borough would institute a civil enforcement proceeding against him if he 

did not completely correct or remove the zoning violations by August 8, 2016. 

Zoning Enforcement Notice at 1, R.R. at 1a. The zoning officer sent the zoning

enforcement notice to Brandt both by certified mail, return receipt requested, and 

first-class mail. Zoning Enforcement Notice at 3, R.R. at 3a; see also Transcript of 

Testimony (T.T.) at 8, R.R. at 70a. The copy of the zoning enforcement notice sent 

by certified mail was returned as unclaimed, but the copy sent first class was not 

returned as undeliverable. T.T. at 9, R.R. at 71a. The zoning enforcement notice 

informed Brandt that he had 30 days to completely correct or remove the zoning 

violations. Zoning Enforcement Notice at 1, R.R. at 1a. The zoning enforcement 

notice further provided:

Please be advised that you have the right to appeal this 

Enforcement Notice to the Palmyra Borough Zoning 

Hearing Board within thirty (30) days if you believe 

that I have misinterpreted or misapplied the [z]oning 

[o]rdinance. Failure to appeal this Enforcement Notice 

may constitute a waiver of certain rights and may 

result in a conclusive determination that the condition 

of the property violates the [z]oning [o]rdinance.

Id. (emphasis in original). Brandt did not appeal to the zoning hearing board.1 

Zoning Enforcement Notice at 1, R.R. at 1a. The Borough filed a civil complaint 

with the magisterial district court on November 30, 2016, seeking civil penalties, 

 

1 After the 30-day window to come into compliance closed, Brandt filed an application for 

a zoning permit to construct a shed and a fence. Civil Complaint at 2, R.R. at 6a. However, Brandt 

did not follow up with the Borough’s requests for additional information regarding his application, 

and the Borough proceeded with enforcement of the zoning ordinance. Civil Complaint at 3, R.R. 

at 7a. 
3

filing costs and attorneys’ fees. Civil Complaint, R.R. at 4a-8a. On March 29, 2017, 

the magisterial district judge entered judgment in favor of the Borough, including an

award of filing fees, costs and attorneys’ fees. Notice of Judgment, R.R. at 9a. 

Brandt appealed this judgment to the trial court. Notice of Appeal, R.R. at 10a. The 

Borough filed a complaint with the trial court, to which Brandt filed preliminary 

objections. O.R., Trial Court Opinion, 9/11/18 at 2. The Borough opted to file an 

amended complaint in lieu of an answer to Brandt’s preliminary objections pursuant 

to Pennsylvania Rule of Civil No. Procedure 1028(c)(1). In its amended complaint, 

the Borough alleged that Brandt failed to correct the zoning violations described in 

the zoning enforcement notice. Amended Complaint at 5-6, R.R. at 15a-16a. The 

Borough sought recovery of civil penalties for violations of its zoning ordinance, 

equitable relief for correction of the violations and recovery of attorneys’ fees 

incurred in the enforcement of the zoning ordinance. Amended Complaint at 6-10, 

R.R. at 16a-20a. Brandt then filed preliminary objections to the amended complaint,

arguing that the trial court lacked jurisdiction due to defective service of the zoning 

enforcement notice and that the Borough failed to properly allege a violation of its

zoning ordinance. Preliminary Objections at 1-5, R.R. at 35a-39a. On April 13, 

2018, the trial court issued an order overruling Brandt’s preliminary objections. 

O.R., Trial Court Order, 4/13/18. In an accompanying opinion, the trial court held 

that the Borough complied with Section 616.1(b) of the Pennsylvania Municipalities 

Planning Code (MPC)2, 53 P.S. § 10616.1(b), in mailing the zoning enforcement 

notice to Brandt by both regular and certified mail. O.R, Trial Court Opinion, 

4/13/18 at 6. The trial court also noted that “failure to appeal an enforcement notice 

to the zoning hearing board renders the violations stated in the enforcement notice 

 

2 Act of July 31, 1968, P.L. 805, as amended, added by Section 60 of the Act of Dec. 21, 

1988, P.L. 1329.
4

binding and precludes further review by the district justice and the trial court.” Id.

at 7. Thus, the trial court found that “in the present action [it was] limited to making 

determinations with regard to the Borough’s request for penalties, [attorneys’] fees 

and equitable relief pertaining to the violations described in the Enforcement 

Notice.” Id. at 8. 

On May 9, 2018, Brandt filed an answer to the Borough’s amended 

complaint admitting that he did not appeal the enforcement notice to the zoning 

hearing board. See Amended Complaint at 5, R.R. at 15a; Answer at 3, R.R. at 52a. 

On June 8, 2018, the Borough filed a motion for judgment on the pleadings, to which 

Brandt filed a brief in opposition. Trial Court Docket, R.R. at iv, v & 55a. On 

September 11, 2018, the trial court issued an opinion and order granting the 

Borough’s motion for judgment on the pleadings, citing the same reasons set forth 

in its prior opinion denying Brandt’s preliminary objections. Trial Court Order, 

9/11/18 at 1; R.R. at 60a; O.R., Trial Court Opinion at 5. The trial court also ordered

Brandt to come into compliance with the Borough’s zoning ordinance and scheduled

a hearing on the amount of reasonable attorneys’ fees incurred by the Borough and 

the amount of penalties to be assessed against Brandt. O.R., Trial Court Order, 

9/11/18 at 1. On October 25, 2018, the trial court held a hearing on penalties and 

attorneys’ fees. T.T. at 1 & 16-17, R.R. at 63a & 78a-79a. On October 26, 2018, 

the trial court entered an order, dated October 25, 2018, finding that Brandt was still 

in violation of the Borough’s zoning ordinance and ordering Brandt to pay the 

Borough a fine of $938 and $2,500 in attorneys’ fees. Trial Court Order, 10/25/18, 

R.R. at 125a. 

Brandt then appealed to this Court and subsequently filed a concise 

statement of errors complained of on appeal, contending that the trial court erred by 
5

permitting the action to proceed in the absence of proof or acknowledgment of 

service of the zoning enforcement notice or, in the alternative, by applying offensive 

collateral estoppel, or giving preclusive effect, to a purported default before the 

zoning hearing board in the absence of proof or acknowledgement of service of the 

enforcement notice. O.R., Statement of Errors Complained of on Appeal at 1. 

Before this Court,3 Brandt argues that service by regular mail alone, or

by certified mail when returned as unclaimed, is not acceptable for serving initial 

process in any form of action. Brandt’s Brief at 13. Brandt notes that the MPC does 

not specify how a zoning enforcement notice shall be sent. Id. at 18. Brandt asserts 

that the Borough unsuccessfully attempted service pursuant to Pennsylvania Rule of 

Civil Procedure No. 403, because the copy of the zoning enforcement notice sent by 

certified mail was returned as unclaimed. Id. at 18-19.4 Further, Brandt maintains

that the trial court erroneously relied upon Township of Bushkill v. Heater (Pa. 

Cmwlth., No. 1536 C.D. 2007, filed July 10, 2008),5 because it is not clear from the 

record in that case that the property owners actually received the zoning enforcement 

 

3

“Our review of a trial court’s decision granting a motion for judgment on the pleadings 

considers whether the court committed an error of law or whether unresolved questions of material 

fact remain outstanding.” Pfister v. City of Philadelphia, 963 A.2d 593, 596 n.7 (Pa. Cmwlth. 

2009) (citing Travelers Casualty & Surety Co. v. Castegnaro, 772 A.2d 456, 459 (Pa. 2001)). 

“Our scope of review is plenary.” Id. (citing Lindstrom v. City of Corry, 763 A.2d 394, 396 (Pa. 

2000)).

4 Pennsylvania Rule of Civil Procedure 403 provides, in part:

If a rule of civil procedure authorizes original process to be served 

by mail, a copy of the process shall be mailed to the defendant by 

any form of mail requiring a receipt signed by the defendant or his 

authorized agent. Service is complete upon delivery of the mail.

Pa.R.C.P. No. 403.

5 This Court’s unreported memorandum opinions may be cited for persuasive value. 

Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code § 69.414(a).
6

notice. Id. at 20. Brandt contends, “to the extent that [Heater] excuses deficient 

service, it runs afoul of due process and should not be followed.” Id. at 21. Further, 

Brandt posits that “it would be more than reasonable” to read the requirements 

contained in either Pennsylvania Rule of Civil Procedure No. 403 or Pennsylvania 

Rule of Criminal Procedure 451 into the MPC. Id. at 24. Brandt asserts that 

legislation should be read in a way that ensures its constitutionality, if possible. Id. 

Accordingly, Brandt proposes viewing the enforcement notice as the equivalent of a 

complaint or citation. Id. Brandt requests that this Court dismiss this matter without 

prejudice because the enforcement notice was not properly served, such that Brandt 

was deprived of the opportunity to appeal to the zoning hearing board. Id. at 26. 

Alternatively, Brandt requests that this Court remand the case to the trial court to 

consider the alleged zoning violation on the merits. Id. at 27. 

The Borough counters that the trial court did not err in granting 

judgment on the pleadings, because Brandt’s failure to appeal the Borough’s 

enforcement notice to the zoning hearing board resulted in a conclusive 

determination of the violations stated therein. Borough’s Brief at 12-13. The 

Borough argues that it properly served Brandt, as it sent the enforcement notice to 

Brandt in accordance with MPC Section 616.1, 53 P.S. § 10616.1. Id. at 19. 

MPC Section 616.1 provides, “[i]f it appears to the municipality that a 

violation of any zoning ordinance enacted under this act or prior enabling laws has 

occurred, the municipality shall initiate enforcement proceedings by sending an 

enforcement notice . . . to the owner of record of the parcel on which the violation 

has occurred[.]” 53 P.S. § 10616.1(a), (b). Notably, the MPC does not require that 

the notice be sent by certified mail. In Heater, the township sent a zoning

enforcement notice to property owners via both certified and regular mail. Heater, 
7

slip op. at 2. The certified letter was returned as unclaimed, and the property owners

did not appeal to the zoning hearing board. Id. The trial court entered a verdict in 

favor of the township and the property owners appealed to this Court, claiming that 

the township failed to comply with MPC Section 616.1, 53 P.S. § 10616.1, by failing 

to ensure they received the zoning enforcement notice, as evidenced by the fact that 

the certified letter was returned to the township as unclaimed. Heater, slip op. at 2-

4. We held as follows:

[T]he township properly complied with [MPC] Section 

616.1(b) in that it sent the enforcement notice to the 

“owner of record of the parcel on which the violation has 

occurred. . . .” Specifically, the [t]ownship sent the 

enforcement notice via certified mail and regular mail to 

[the parcel owners of record] . . . . Although the certified 

mail was returned to the [t]ownship “unclaimed” such 

does not negate the fact that the [t]ownship sent the notice 

to the owner of record by both regular mail and certified 

mail. The MPC does not mandate that the owner accept 

or read the enforcement notice, only that the [t]ownship

send it, as the [t]ownship did in this case.

Id. at 4 (emphasis added). 

Here, the zoning officer sent the zoning enforcement notice to Brandt 

both by certified mail, return receipt requested, and first-class mail. As in Heater, 

the copy sent by certified mail was returned as unclaimed. See id. at 2. However, 

the fact that the certified copy was returned as unclaimed is of no consequence, as 

the MPC only requires that a municipality send the zoning enforcement notice to the 

property owner—it need not ensure that the notice is accepted or read. See id. at 4. 

We are unpersuaded by Brandt’s assertion that Heater runs afoul of due process by 

excusing deficient service of zoning enforcement notices. “Adequate notice of 
8

administrative action is notice which is ‘reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency of the action and afford 

them an opportunity to present their objections.’” Clark v. Dep’t of Pub. Welfare, 

427 A.2d 712, 714 (Pa. Cmwlth. 1981) (quoting Mullane v. Cent. Hanover Bank and 

Tr. Co., 339 U.S. 306, 314 (1950)). This Court has specifically held “that notice 

sent to one’s last known place of residence is reasonably calculated to give that 

individual actual notice of . . . administrative action.” Id. Brandt admitted that his 

address is 50 West Main Street, Apartment A, Palmyra, Pennsylvania 17078, which 

is the address to which the Borough sent the zoning enforcement notice. See 

Amended Complaint at 1 & 4, ¶¶ 2 & 20, R.R. at 12a & 14a; Exhibit B to Complaint, 

O.R.; Answer at 1-2, ¶¶ 1 & 14, R.R. at 50a-51a; Zoning Enforcement Notice at 1, 

R.R. at 1a; see also T.T. at 41, R.R. at 103a. Thus, the Borough did not “excuse 

deficient service” thereby violating Brandt’s due process rights. Further, we decline 

Brandt’s invitation to read extraneous service requirements into the MPC, as “a court 

may not graft additional provisions onto a statute which the General Assembly did 

not see fit to include.” Township of Penn v. Seymour, 708 A.2d 861, 864 (Pa. 

Cmwlth. 1998) (emphasis added) (holding that the township’s zoning enforcement 

notice was sufficient under MPC Section 616.1, 53 P.S. § 10616.1, where it notified 

the property owner of his right to appeal to the zoning hearing board but did not 

further explain that right, because the MPC contains no such requirement). We 

therefore agree with the trial court’s determination that the Borough complied with 

MPC Section 616.1, 53 P.S. § 10616.1, in sending the zoning enforcement notice to 

Brandt. See Trial Court Opinion, 9/11/18 at 5. 

Brandt further argues that this Court’s prior holdings that failure to 

appeal to the zoning hearing board renders a zoning violation unassailable 
9

constitutes implicit application of the preclusion doctrines, even though this Court 

did not use the terms “res judicata” or “collateral estoppel” in those cases. Id. at 17-

21. Brandt asserts that “if there has not in fact been service, there definitely has been 

no full and fair opportunity to litigate, and there should be no claim preclusion.” Id.

at 23 (emphasis in original). More specifically, Brandt contends that this Court has 

applied the concept of “offensive collateral estoppel” in certain cases, even though 

it did not use that term, by claiming it was unable to review matters that should have 

been appealed to a zoning hearing board. Id. at 17-18 n.12. 

Pursuant to MPC Section 909.1(a)(3), “[t]he zoning hearing board shall 

have exclusive jurisdiction to hear and render final adjudications in . . . [a]ppeals 

from the determination of the zoning officer, including, but not limited to, the 

issuance of any cease and desist order[.]” 53 P.S. § 10909.1(a)(3).6 We have held 

as follows:

A landowner’s failure to appeal the notice of violation 

results in a final adjudication that the landowner violated 

the zoning ordinance. If the landowner fails to appeal, he 

may not later deny there was a violation. If after receiving 

an enforcement notice, the landowner continues to violate 

the zoning ordinance without appealing the enforcement 

notice, Section 616.1(c)(6) of the MPC, 53 P.S. § 

10616.1(c)(6), dictates a conclusive determination of 

violation, and entitles a municipality to either initiate 

district justice action for sanctions or file a complaint in 

equity to enjoin the landowner from further violations 

(independent of the MPC). . . . If the landowner does 

appeal to the zoning hearing board the MPC vests in the 

zoning hearing board exclusive jurisdiction to hear such 

an appeal.

 

6 Added by Section 87 of the Act of Dec. 21, 1988, P.L. 1329.
10

Woll v. Monaghan Township, 948 A.2d 933, 937 (Pa. Cmwlth. 2008) (internal 

citation omitted). Thus, “failure to appeal the enforcement notice to the zoning 

hearing board render[s] the zoning officer’s determination of a violation unassailable 

under Section 616.1(c)(6) of the MPC[, 53 P.S. § 10616.1(c)(6)].”7 Heater, slip op. 

at 6 (citing Borough of Latrobe v. Pohland, 702 A.2d 1089 (Pa. Cmwlth. 1997)).

We find meritless Brandt’s argument that this Court’s adherence to the 

clear and explicit mandate in MPC Section 909.1(a)(3), 53 P.S. § 10909.1(a)(3), that 

the zoning hearing board retain exclusive jurisdiction over appeals from zoning 

officer determinations, constitutes an implicit and improper application of the 

preclusion doctrines. We have held previously that “[t]he language of [MPC] 

[S]ection 909.1(a)(3) could not be clearer,” as this “[S]ection expressly gives the 

zoning hearing board exclusive jurisdiction to ‘hear and render final adjudications’ 

in cease-and-desist order cases[.]” Johnston v. Upper Macungie Township, 638 

A.2d 408, 412 (Pa. Cmwlth. 1994) (emphasis in original). As this provision of the 

MPC is devoid of ambiguity, we cannot attribute merit to Brandt’s preclusion 

argument. Thus, we find that the trial court did not apply either res judicata or 

collateral estoppel but, rather, correctly determined that Brandt’s failure to appeal 

the zoning enforcement notice to the zoning hearing board rendered the zoning 

violations stated therein conclusive. See Heater, slip op. at 6; see also Lower Mount 

Bethel Township v. Gacki, 150 A.3d 575, 580 (Pa. Cmwlth. 2016) (affirming the trial 

court’s decision to enter judgment on the pleadings, reasoning that the trial court’s 

decision did not deprive the property owners of their due process right to a hearing 

 

7 Pursuant to MPC Section 616.1(c)(6), “failure to comply with the notice within the time 

specified, unless extended by appeal to the zoning hearing board, constitutes a violation, with 

possible sanctions clearly described.” 53 P.S. § 10616.1(c)(6)
11

when they forfeited this right by failing to appeal the violation notice to the zoning 

hearing board). 

Accordingly, we affirm the trial court.

8

__________________________________

CHRISTINE FIZZANO CANNON, Judge

 

8 The Borough also contends that it is entitled to costs, reasonable counsel fees and damages 

for delay, because Brandt’s appeal was frivolous, as he “failed to cite to a single authority holding 

that statutory provisions allowing service of administrative notices by mail violate a party’s due 

process.” Borough’s Brief at 20. Pennsylvania Rule of Appellate Procedure 2744 provides that

an appellate court may award reasonable counsel fees and damages for delay, as may be just, if it 

determines that an appeal is frivolous or taken solely for delay. Pa.R.A.P. 2744. A “frivolous 

appeal” for purposes of awarding counsel fees is one lacking any basis in law or fact. Simmons v. 

Delaware Cty. Tax Claim Bureau, 796 A.2d 400, 405 (Pa. Cmwlth. 2002). Further, “[a]n appeal 

is frivolous if it is devoid of merit with no likelihood of success, such as an argument running 

counter to well-established rules of law.” Id. However, we do not find that Brandt filed a frivolous 

appeal and, thus, decline to grant the Borough’s request.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of Palmyra :

:

v. :

:

Raymond U. Brandt, : No. 1575 C.D. 2018

Appellant :

O R D E R

AND NOW, this 9th day of October, 2019, the order of the Court of

Common Pleas of Lebanon County is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge