IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Bradley Center, a Pennsylvania :

Non-Profit Corporation :

:

v. : No. 2028 C.D. 2016

: Argued: November 13, 2017

North Strabane Township, and :

Linden Vue Homeowners Association, :

Inc., and Majestic Hills Homeowners :

Association :

:

Appeal of: Linden Vue Homeowners :

Association, Inc., and Majestic Hills :

Homeowners Association :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge (P)

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: February 12, 2018

The matter before this Court began with two separate but interrelated 

land use appeals filed in the Washington County Court of Common Pleas (Trial 

Court) by Gateway Rehabilitation Center (Gateway) concerning use of property 

owned by the Bradley Center. The first appeal, docketed as CV-2009-3302, was an 

appeal from the North Strabane Township Board of Supervisors’ (Board) denial of 

Gateway’s request to use property that Gateway had negotiated to purchase from the 

Bradley Center as a drug and alcohol treatment center for juveniles. The second 

appeal, docketed as CV-2009-8835, was an appeal from the North Strabane 

Township Zoning Hearing Board’s (ZHB) decision that Gateway’s proposed use of 

the property was not a continuation of a non-conforming use and that the prior non-
2

conforming use of the property was abandoned. The first appeal was resolved in 

separate proceedings. In the ZHB appeal, the Trial Court reversed the findings of 

the ZHB and determined that judicial estoppel precluded a decision on the merits of 

the issues raised by Linden Vue Homeowners Association, Inc., and Majestic Hills 

Homeowners Association, Inc. (collectively Associations). The Associations now 

seek this Court’s review of the Trial Court’s October 7, 2016 order in the ZHB 

appeal, as supplemented by its November 21, 2016 order. For the reasons that 

follow, we affirm the Trial Court. 

The Bradley Center purchased the property at issue in 1999 and was 

granted a conditional use to use the property as a residential treatment facility. The 

property had previously been used as a psychiatric hospital. In 2006, North Strabane 

Township (Township) adopted a new zoning map and the new zoning map rendered 

the Bradley Center’s use of the property a legal non-conforming use. In 2008, the 

Bradley Center entered into an agreement of sale with Gateway, which intended to 

use the property as a youth residential treatment facility. 

Pursuant to the Township’s zoning code, an application for a change in 

occupancy is required when there is a change in the occupant of a property,

regardless of whether the change in occupant results in a change in the use of a 

property. Gateway filed an application with the Township for a change in occupancy

in an existing structure in order to operate a youth residential treatment facility at the 

property. Gateway’s application was treated as a request for a conditional use and 

was sent to the Planning Commission, which recommended approval; however, 

when Gateway’s application reached the Board, it denied the request. During the 

same time period, Gateway sought relief from the ZHB because it had applied to the 

Township’s zoning officer for a certificate of use and occupancy as a continuation 

of a legal non-conforming use and the zoning officer had failed to issue a timely 
3

decision. The ZHB denied approval of Gateway’s proposed use of the property. 

Before both the Board and the ZHB, the Associations and various neighbors 

appeared and objected to Gateway’s proposed use of the property. 

As noted above, Gateway appealed the ZHB and Board decisions to the 

Trial Court. While the appeals were pending, Gateway withdrew its offer to 

purchase the property from the Bradley Center and the Bradley Center was 

substituted for Gateway as the appellant in both appeals. The Township was listed 

as the appellee in both appeals. Linden Vue Homeowners Association, Inc. (Linden 

Vue), one of the Associations, filed a Notice of Intervention in both the Board and 

the ZHB appeals soon after they were filed in the Trial Court. Linden Vue was 

added to the caption in the ZHB appeal, but was not added to the caption in the Board 

appeal. Counsel for Linden Vue was listed on both dockets. However, Linden Vue 

did not file a petition to intervene in either case. 

The appeal from the Board’s decision settled via a motion for a consent 

order granted by the Trial Court on October 3, 2012. The substantive section of the 

consent order provides: 

(1) the property has never been abandoned; 

(2) the Bradley Center continues to own the property 

and/or market the property for sale or lease with the 

original intended use as a youth residential treatment 

facility;

(3) it is expressly understood and agreed that the use of the 

property as a youth residential treatment facility was not 

and is not abandoned; 

(4) the prothonotary of Washington County is directed [to] 

mark this action as settled and discontinued.
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(Consent Decree, Docket CV-2009-3302.) Linden Vue did not receive notice of the 

consent decree and did not appear before Judge O’Dell Seneca to oppose the order. 

Linden Vue became aware of the consent decree in December 2013 and filed a 

motion to vacate the consent order, after which the matter followed a convoluted 

procedural path that eventually led to this Court. The appeal from the ZHB’s 

decision was stayed by the Trial Court until the Board appeal was resolved, which it 

finally was on February 16, 2016.1

On April 28, 2016, the Trial Court lifted the stay and allowed discovery 

in the aim of determining whether the Associations’ request to vacate the October 3, 

2012 consent order should be granted as a part of the appeal from the ZHB decision. 

On October 7, 2016, the Trial Court issued an opinion and order reversing the 

underlying ZHB opinion, leaving in place the consent order, and concluding that 

judicial estoppel precluded the relief sought by the Associations. The Trial Court 

stated that “[t]his Court finds that the [Associations] are not being candid with the 

tribunal in alleging that there are different issues between the two cases when that is 

not so. In other words, the [Associations] are attempting to collaterally attack the 

Consent Order filed at CV-2009-3302 after having missed their opportunity,” in the 

appeal of the Board’s decision. (Trial Court Op. at 7.) 

 

1 This Court issued an unpublished decision, Bradley Center v. North Strabane Township, (Pa. 

Cmwlth. Nos. 307 C.D. 2014, 360 C.D. 2014, filed March 31, 2015), 2015 WL 5332132, affirming 

two orders issued by the Court of Common Pleas: (1) an order vacating an earlier order that had 

stayed the consent decree and permitted the Associations to intervene in the Board Appeal; and 

(2) an order denying Linden Vue’s request to appeal nunc pro tunc from an order denying Linden 

Vue’s request to vacate the consent decree. Reargument and rehearing en banc was denied on May 

15, 2015. The Pennsylvania Supreme Court denied the Associations’ Petition for Allowance of 

Appeal on December 31, 2015 and Application for Reconsideration on February 16, 2016. Bradley 

Center v. North Strabane Township, 130 A.3d 1292 (Pa. 2015) (table) and see (Pa. Nos. 231 WAL 

2015, 232 WAL 2015, filed February 16, 2016).
5

On November 4, 2016, the Trial Court granted the Associations’ 

request for reconsideration and stayed its October 7, 2016 order pending review of 

the parties’ arguments. On November 21, 2016, the Trial Court entered a third order 

making the October 7, 2016 order final and the Trial Court issued a supplemental 

opinion. In the supplemental opinion, the Trial Court addressed judicial estoppel 

and separately addressed mootness. The Trial Court concluded that the ZHB Appeal 

was moot for two reasons. First, because Gateway had been seeking an occupancy 

permit, the appeal became moot when the sale to Gateway fell through and the 

Bradley Center was substituted as a party. Second, in November 2013, Southwood 

Psychiatric Hospital, LLC (Southwood), purchased the property from the Bradley 

Center and applied for an occupancy permit from the Township, which the Township 

granted. The Associations are currently seeking to have the Trial Court void the 

occupancy permit issued to Southwood; that action is docketed in the Trial Court at 

CV-2014-00238. On December 14, 2016, the Associations filed a request to have 

the Trial Court vacate its November 21, 2016 order and that request was denied. 

This appeal followed. 

Before the ZHB, the Associations took the position that the matter 

proceeding before the Board, which was ultimately appealed to the Trial Court and 

settled via a consent decree, presented identical issues to the matter the ZHB was 

being asked to determine: whether use of the property had been abandoned or was 

continued as a nonconforming use. Following the conclusion of the Board Appeal, 

the Associations argued to the Trial Court that those proceedings did not contain 

identical issues and the question of whether an occupancy permit should be granted 

or denied was left unresolved by the consent decree. The Trial Court concluded that 

judicial estoppel precluded the Associations from advancing this argument because 

they prevailed on the contrary proposition before the ZHB. The question before this 
6

Court is whether the Trial Court erred in concluding that the doctrine of judicial 

estoppel precludes a decision on the merits. As the question is one of law, our scope 

of review is plenary and our standard of review is de novo. O’Neill v. Philadelphia 

Zoning Board of Adjustment, 169 A.3d 1241, 1244 (Pa. Cmwlth. 2017). 

Judicial estoppel has been defined by the United States Supreme Court

as a rule that “generally prevents a party from prevailing in one phase of a case on 

an argument and then relying on a contradictory argument to prevail in another 

phase.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Pegram v. 

Herdrich, 530 U.S. 211, 227 n.8 (2000)). Our Supreme Court summarized the 

doctrine in Trowbridge v. Scranton Artificial Limb Co., 747 A.2d 862 (Pa. 2000), 

stating:

As a general rule, a party to an action is estopped from 

assuming a position inconsistent with his or her assertion 

in a previous action, if his or her contention was 

successfully maintained. “Federal courts have long 

applied this principle of estoppel where litigants ‘play fast 

and loose’ with the courts by switching legal positions to 

suit their own ends.” The purpose of this doctrine is to 

uphold the integrity of the courts by “preventing parties 

from abusing the judicial process by changing positions as 

the moment requires.” 

Id. at 865 (internal citations omitted). Judicial estoppel “depends on the relationship 

of one party to one or more tribunals,” rather than the relationship between the 

parties. In re Estate of Bullotta, 838 A.2d 594, 596 (Pa. 2003). Judicial estoppel 

applies where (1) a party assumed an inconsistent position in an earlier action; and 

(2) the party’s contention was successfully maintained. Marazas v. Workers’ 

Compensation Appeal Board (Vitas Healthcare Corp.), 97 A.3d 854, 859 (Pa. 

Cmwlth. 2014).
7

In Marazas, a workers’ compensation claimant alleged that judicial 

estoppel precluded employer’s denial of his employment status because employer 

had argued in a prior related civil suit that claimant was an employee and his 

exclusive remedy was under the Workers’ Compensation Act.2 This Court held that 

judicial estoppel did not apply because the claimant had voluntarily dropped his civil 

suit. Id. at 861. We reasoned that the “successfully maintained” element of judicial 

estoppel looks to the action of the decision-maker, not the parties. Id. 

The overriding purpose of judicial estoppel is to ensure candor to the 

tribunal. Although the Associations contend that the Trial Court erred by basing the 

application of judicial estoppel upon the legal positions taken in the proceedings, we 

disagree. Judicial estoppel applies to sworn facts or judicial admissions, and to legal 

argument. See Hospital & Health Association of Pennsylvania v. Commonwealth, 

77 A.3d 587, 596 n.9 (Pa. 2013) (holding that the Commonwealth is judicially 

estopped from arguing that it cannot comply with the remedy sought because it 

prevailed on the opposite contention in opposition to an earlier sought preliminary 

injunction). In Gross v. City of Pittsburgh, 686 A.2d 864 (Pa. Cmwlth. 1996), the 

city introduced evidence in a federal civil rights trial that the city later attempted to 

disprove in a state eminent domain action, and this Court held that the city could not 

introduce contradictory evidence in the state eminent domain proceedings simply 

because it better suited the city’s own ends. Id. at 867. In Thompson v. Anderson, 

632 A.2d 1349 (Pa. Super. 1993), a plaintiff successfully maintained an action at 

arbitration based on the theory of injury by intentional act and was subsequently 

estopped from arguing in the same action that the injury occurred because of a 

defendant’s negligence. Id. at 1351. 

 

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
8

The Associations also argue that the evidence cited by the Trial Court, 

a transcript containing legal argument made by Linden Vue’s counsel at a 2009 ZHB 

hearing, does not permit application of judicial estoppel to Majestic Hills because 

counsel for the Associations did not represent Majestic Hills at the time of the 

hearing. In support of this position, the Associations rely upon Canot v. City of 

Easton, 37 A.3d 53 (Pa. Cmwlth. 2012), where this Court held that judicial estoppel 

did not preclude the legal and factual argument put forth by the city because the city 

had not participated in the prior proceedings. Id. at 61. What distinguishes this 

matter from Canot is that Majestic Hills did participate in the prior proceedings; 

although Majestic Hills and Linden Vue were not represented by the same counsel

in the prior proceeding, the Associations advanced the same position and 

successfully convinced the decision-makers of their position. The fact that Majestic 

Hills later retained the same counsel as Linden Vue is of no moment. 

The record clearly reflects that the Associations maintained that the 

matter originating before the Board and the matter originating before the ZHB 

involved the same issues, specifically whether or not the use of the property had 

been abandoned, thereby precluding Gateway’s intended use, or whether Gateway’s 

use would be permitted as the continuation of a nonconforming use. We agree with 

the Trial Court’s conclusion that the Associations’ attempt to now argue that the 

issues are different is merely another attempt to collaterally attack the consent order 

settling the Board appeal after having missed their chance to properly challenge the 

consent order in the Board appeal.

Furthermore, we also agree with the Trial Court’s conclusion that even 

if judicial estoppel did not prevent the Trial Court from reaching the merits, a 

resolution on the merits would be precluded by the mootness doctrine. A case 

becomes moot if there is a change in circumstances or the law that eliminates the 
9

original controversy, thereby depriving the court of the ability to issue a meaningful 

order. Burke ex rel. Burke v. Independence Blue Cross, 103 A.3d 1267, 1271 (Pa. 

2014). In In re Gross, 382 A.2d 116 (Pa. 1978), a patient at a psychiatric facility 

had sought to enjoin the facility from administering medication against his will. Our 

Supreme Court held that the case was moot because when the matter reached the 

Court, the plaintiff was no longer a patient and the Court had nothing to enjoin. Id. 

at 120-121. Similarly, the Court held in Department of Transportation, Bureau of 

Driver Licensing v. Boros, 620 A.2d 1139 (Pa. 1993), that one of the four 

consolidated cases involving license recalls was moot because the appellee died 

while the appeal was pending. Id. at 1140 n.1. 

In the instant matter, a change in circumstances occurred when the 

Bradley Center and Gateway terminated their purchase agreement. Under the 

Township’s zoning ordinance, a change in ownership triggers the need to apply for 

an occupancy permit. The Associations’ current argument is that the Board appeal 

did not decide the issue of whether a permit for a change in occupancy in an existing 

structure should be issued for Gateway to operate a youth residential treatment 

facility at the property. However, Gateway withdrew its offer to purchase the 

property from the Bradley Center for use as a youth residential treatment center and

is no longer a party to this action. Therefore, the issue of whether Gateway should 

be issued an occupancy permit is moot. Moreover, the Bradley Center no longer 

owns the property. 

Accordingly, the final order of the Trial Court is affirmed in full.

_______________ ______________________

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

The Bradley Center, a Pennsylvania :

Non-Profit Corporation :

:

v. : No. 2028 C.D. 2016

: 

North Strabane Township, and :

Linden Vue Homeowners Association, :

Inc., and Majestic Hills Homeowners :

Association :

:

Appeal of: Linden Vue Homeowners :

Association, Inc., and Majestic Hills :

Homeowners Association :

O R D E R

AND NOW, this 12

th day of February, 2018, the final order of the 

Washington County Court of Common Pleas in the above-captioned matter is

AFFIRMED.

_______________ ______________________

JAMES GARDNER COLINS, Senior Judge