IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brandywine Village Associates, LP, :

L&R Partnership, LLC, :

and John R. Cropper, :

Appellants : No. 1291 C.D. 2023

:

 v. : Argued: June 4,2024

:

East Brandywine Township, and :

Carlino East Brandywine, L.P. :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION 

BY JUDGE McCULLOUGH FILED: July 10, 2024

Brandywine Village Associates, LP (BVA), L&R Partnership, LLC 

(L&R), and John R. Cropper (collectively “BVA Parties”) appeal from the October 3, 

2023 order of the Court of Common Pleas of Chester County (trial court), which 

granted the motion for summary judgment filed by Carlino East Brandywine, L.P. 

(Developer) and East Brandywine Township (Township) and dismissed the BVA 

Parties’ action seeking declaratory judgment and injunctive relief with prejudice. 

This appeal adds yet another chapter to the procedurally complex, 

protracted litigation between Developer and the BVA Parties regarding the Township’s 

November 17, 2014 condemnation of a portion of the BVA Parties’ land and 

Developer’s attempts to develop a shopping center that the BVA Parties vehemently 

oppose. The parties have appealed numerous times to this Court and the Pennsylvania 

Superior Court. The BVA Parties have filed repeated objections to Developer’s land 
2

development approvals, appealed the issuance of Developer’s Highway Occupancy 

Permit, filed several declaratory judgment actions, including the instant action, and 

filed several lawsuits in federal court alleging constitutional due process and antitrust 

law violations, all of which encompasses a significant litigation history.1

The current dispute revolves around the Township’s condemnation of a 

triangular 1.9-acre portion at the southeast end of the L&R property (1.9-acre L&R 

Parcel). The BVA Parties assert that the 1.9-acre L&R Parcel, which is slated to be 

used to install an underground sewer line and stormwater pipe for the construction of a 

road (the Connector Road Project), will also be used by Developer to manage 

stormwater from its development. The BVA Parties claim that the 1.9-acre L&R Parcel 

must be returned to them pursuant to Section 310(a)(1) of the Eminent Domain Code

1

See Carlino East Brandywine, L.P. v. East Brandywine Township (Pa. Cmwlth., No. 367 

C.D. 2022, filed July 11, 2023) (Brandywine V); Brandywine Village Associates., LP v. East 

Brandywine Township Board of Supervisors (Pa. Cmwlth., No. 499 C.D. 2020, filed July 20, 

2021), 2021 WL 3046662, reargument denied (Sept. 9, 2021), appeal denied, 275 A.3d 957 (Pa. 

2022) (Brandywine IV); Condemnation of Fee Simple Title to 0.069 Acres of Vacant Land & 

Certain Easements Owned by Brandywine Village Associates (Pa. Cmwlth., No. 1409 C.D. 2017, 

filed July 2, 2018), 2018 WL 3213113 (Brandywine III); Brandywine Village Associates v. East

Brandywine Township Board of Supervisors (Pa. Cmwlth., No. 1149 C.D. 2017, filed Apr. 19, 2018), 

2018 WL 1865792 (Brandywine II); Brandywine Village Associates. v. East Brandywine Township 

Board of Supervisors (Pa. Cmwlth., No. 164 C.D. 2017, filed Jan. 5, 2018), 2018 WL 296999 

(Brandywine I). See also Carlino E. Brandywine, L.P. v. Brandywine Village Associates (Pa. Super., 

No. 2030 EDA 2022, filed October 2, 2023); Carlino E. Brandywine, L.P. v. Brandywine Village 

Associates (Pa. Super., No. 1194 EDA 2019, filed July 23, 2021); Carlino E. Brandywine v. 

Brandywine Village Associates (Pa. Super., No. 3388 EDA 2017, filed October 16, 2018); Carlino E. 

Brandywine, L.P. v. Brandywine Village Associates & Associated Wholesalers, Inc. (Pa. Super., No. 

2558 EDA 2013, filed October 20, 2014); Brandywine Village Associates v. East Brandywine 

Township, (E.D. Pa., No. 16-5209, filed March 26, 2018) 2018 WL 1470124; Brandywine Village 

Associates v. East Brandywine Township, (E.D. Pa., No. 20-2225, filed Sep. 14, 2020) 2020 WL 

5517353; Brandywine Village Associates v. Carlino East Brandywine, L.P., 2023 WL 4918326 (E.D. 

Pa., Civil Action No. 16-5209, Aug. 1, 2023). The highlighted cases are ones that are relevant to this 

appeal. 
3

(Code), 26 Pa. C.S. § 310(a)(1),2 because by conveying to Developer an easement to 

use the 1.9-acre L&R Parcel for its underground sanitary sewer line and a stormwater 

easement, the Township “abandoned” the original public purpose for which that 

particular parcel was condemned. 

It is Developer’s position that the BVA Parties’ claim that the Township 

abandoned the public purpose of the condemnation by consenting to installation of the 

sewer line and stormwater pipe on the 1.9-acre L&R Parcel was already resolved in 

prior judicial proceedings. Therefore, the BVA Parties are barred under the doctrine of 

collateral estoppel from claiming in this lawsuit that the Township’s consent to 

installation of the sewer line and stormwater pipe on the 1.9-acre L&R Parcel confers 

a private benefit to Developer, which requires reversal of the condemnation and reconveyance of the property to the BVA Parties. Developer also contends that the 

Township’s consent to installation of underground conveyance lines on the 1.9-acre 

L&R Parcel that is being used to construct the road and the adjoining stormwater 

management facilities does not constitute abandonment of the entire Project, the 

purpose for which the property was condemned. Therefore, Section 310(a) of the Code 

does not require the return of the 1.9-acre L&R Parcel to the BVA Parties.

2 Section 310(a)(1) of the Code, titled “Abandonment of Project,” provides, in relevant part:

(a) Disposition of property.--If a condemnor has condemned a fee and 

then abandons the purpose for which the property has been 

condemned, the condemnor may dispose of it by sale, lease, gift, 

devise or other transfer with the following restrictions:

(1) If the property is undeveloped or has not been 

substantially improved, it may not be disposed of within 

ten years after condemnation without first being offered 

to the condemnee at the same price paid to the 

condemnee by the condemnor.

26 Pa. C.S. § 310(a)(1) (emphasis added).
4

For the reasons that follow, we agree that the present action is barred by 

the doctrine of collateral estoppel and affirm the trial court’s dismissal order.

I. Background

A. Statement of Undisputed Facts

BVAowns an 11.5-acre parcel of land containing a shopping center, which 

includes a food store, “Cropper’s Market,” near the intersection of Horseshoe Pike and 

North Guthriesville Road in the Township (BVA Parcel). (Reproduced Record (R.R.) 

at 11a.) Developer owns a 10.118-acre tract of land abutting the BVA Parcel. Id. at

24a. L&R owns a 10.46-acre parcel that lies north of Developer’s property. Id. at 12a. 

Since 2010, Developer sought approval to develop its property with a “Giant” food 

market and a bank.

1. Memorandum of Understanding

On August 20, 2014, Developer and the Township signed a Memorandum 

of Understanding (MOU), in which the Township agreed to condemn the southern 

portion of the property owned by L&R, together with other property and easements, 

for the construction of a road between Horseshoe Pike and North Guthriesville Road 

(the Connector Road). Id. at 13a, 23a-35a. In exchange, Developer agreed to construct 

the Connector Road and dedicate it to the Township upon completion. In the MOU, 

the Township also agreed to grant Developer an easement to install a sewage 

conveyance line on the condemned property, to be assigned to the Township’s 

Municipal Authority:

After the Developer has received all necessary approvals to 

construct the Project in conformity with the

Preliminary/Final Plans, has entered into any Development 

and Financial Security Agreements required by the 

Township, and the condemnations of the Condemned 

Property Interests are final and unappealable, the Township 

shall grant the Developer permission and/or [an] easement 
5

across the Connector Road Parcels and the Route 322 Right[-

] of[-]Way to construct the Connector Road and, if 

requested by Developer, shall grant to the Developer the 

right to install, use, maintain, repair and replace an 8[-] 

inch PVC sewage conveyance line across a portion of the 

Connector Road Parcel and shall permit the assignment 

of such sewer line easement to the [Municipal] Authority.

(R.R. at 31a-32a) (emphasis added).

The MOU attached a plan depicting the Connector Road crossing the 

Developer’s property and L&R’s property. Id. at 35a. The MOU plan also identified

the easement for the sewage conveyance line on the condemned property formerly

owned by L&R. Id.

2. The Declaration of Taking

On November 17, 2014, the Township filed a declaration of taking to 

condemn three different properties: (1) the 1.9-acre L&R Parcel; (2) BVA’s easements 

to install and use the access drive and stormwater drain on Developer’s property; and 

(3) a .069-acre portion of BVA’s frontage on Horseshoe Pike. Id. at 37a-63a. The 

purpose of the taking was to construct the Connector Road and associated stormwater 

facilities. Id. at 40a. The BVA Parties filed preliminary objections to the taking, 

challenging the purpose and scope of the taking. They asserted that the majority of the 

L&R Parcel was to be used for stormwater facilities, some of which may be used by 

Developer to manage stormwater from its development. They argued that by allowing 

Developer to construct a sewer line and stormwater pipe on the 1.9-acre L&R Parcel, 

the Township was conferring a private benefit on Developer and, therefore, the taking 

was not for a public purpose and was excessive. Id. at 775a-76a. They also argued that 
6

Section 204 of Pennsylvania’s Property Rights Protection Act (PRPA), 26 Pa. C.S. § 

204,

3 prohibits condemnation of private property for private use. (R.R. at 776a.)

On September 7, 2017, the trial court overruled the objections, 

concluding, inter alia, that Developer’s occupation of the 1.9-acre L&R Parcel did not 

violate the PRPA because its use would be incidental to, and not change, the public 

purpose of the Township’s condemnation to build the Connector Road and related 

stormwater management facilities. In the decision upholding the condemnation, the 

trial court noted that the condemned land will be principally consumed by the 

Connector Road itself, the deceleration lane, and “a stormwater pipe that will run along 

the southern boundary of the condemned portion of the L&R Parcel.” (Trial Ct. op., 

9/8/17, at 3; R.R. at 1081a.) The trial court held that Developer’s use of the 1.9-acre 

L&R Parcel did not change the purpose in condemning the land:

3 Section 204 of the PRPA, titled “Eminent domain for private business prohibited,” states, in 

pertinent part:

(a) Prohibition.--Except as set forth in subsection (b), the exercise by 

any condemnor of the power of eminent domain to take private 

property in order to use it for private enterprise is prohibited.

(b) Exception.--Subsection (a) does not apply if any of the following 

apply:

* * * *

(2) The property is taken by, to the extent the party has the power of 

eminent domain, transferred or leased to any of the following:

* * * *

(iii) A private enterprise that occupies an incidental 

area within a public project, such as retail space, 

office space, restaurant and food service facility or 

similar incidental area.

26 Pa. C.S. § 204(a), (b)(2)(iii) (emphasis added).
7

[The BVA Parties] argue that the condemnation is not entirely 

intended for use as a road. Instead, the majority of the L&R 

Parcel will be used for stormwater facilities, some of which 

may be used by [Developer] to manage stormwater from its 

development.

* * * *

With respect to the L&R Parcel, there is no evidence that the

Township’s taking of the L&R Parcel was affected by 

[Developer’s] hope that it would be able to use that site for 

stormwater management. Both [Township engineers] Mr. 

Padula and Mr. Dobson testified that, regardless of 

[Developer’s] use of the Township stormwater facilities, both

the drain pipe and the stormwater detention basin would 

remain the same size and in the same location.

The evidence wholly supports the conclusion that the 

condemnation is intended for the construction of the 

Connector Road. The PRPA does not apply to the project

because the condemnation is intended to be used to construct 

a “road, street, highway, trafficway[.]’’ 26 Pa. C.S.[] § 

204(b)(9). To the extent some land will be occupied by

[Developer], that occupation is nothing more than “an 

incidental area within a public project, such as retail space, 

office space, restaurant and food service facility or similar

incidental area”, which is also an exception to the PRPA. 26 

Pa. C.S.[] § 204(b)(2)(iii).

Id. at 27-28; R.R. at 1105a-06a. The trial court thus concluded that Developer’s use of 

the 1.9-acre L&R Parcel will be incidental as defined in the PRPA and, therefore, will 

not change the public purpose of the taking to build the Connector Road and related 

stormwater management facilities. Id. at 42; R.R. at 1120a.

On July 2, 2018, this Court affirmed the trial court’s decision that the 

taking served a public purpose, was not excessive, and fell within the exceptions of the 

PRPA, and that any benefit received by Developer was “incidental at best.” 

Brandywine III, 2018 WL 3213113, at *9. We explained:
8

As the trial court found, the PRPA does not apply here 

because the condemnation falls within the exceptions set 

forth above. First, the condemnation is needed to construct a 

“road, street, highway, [or] trafficway[.]” 26 Pa. C.S. § 

204(b)(9). To whatever extent some portion of the 

condemned land not used for the Connector Road will, after 

the condemnation, be occupied by [Developer], that 

occupation is nothing more than “an incidental area within a 

public project, such as retail space, office space, restaurant 

and food service facility or similar incidental area.” Id. at §

204(b)(2)(iii). Again, this is within another exception to the 

PRPA. Finally, the land taken by the Township that is not to 

be used exclusively as a paved road is being taken in order to 

manage its stormwater obligations and to avoid the threat to 

public safety that will be caused by the location of the 

existing access easement once the Connector Road is built –

a third exception to the PRPA. Id. at § 204(b)(3).

Id., WL 3213113, at *7-*12. The Pennsylvania Supreme Court denied the BVAParties’ 

petition for allowance of appeal. 

3. Developer’s Approved Development Plan (the 2018 Plan)

On July 3, 2018, Developer submitted its land development plan to the 

Township’s Board of Supervisors (Board) for approval to develop its property with a 

shopping center, retail space, off-street parking, stormwater management facilities, and 

the Connector Road. In accordance with the condemnation, Developer proposed to 

build the Connector Road through the eastern portion of the 1.9-acre L&R Parcel. At 

the request of the BVA Parties, the Board conducted four days of public hearings. BVA 

was granted party status to participate in the hearings. On June 7, 2019, the Board 

conditionally approved Developer’s 2018 Plan. The BVA Parties appealed the approval 

of the 2018 Plan to the trial court. One of the BVA Parties’ arguments was that “the

Township has abandoned the purpose for which it acquired the Condemned Property.” 

(Trial Ct. op., 4/17/2020, at 28; R.R. at 1013a.) In a decision dated April 17, 2020, the 
9

trial court disagreed because the BVA Parties, after several days of hearings, adduced 

no evidence of the Township “abandoning” the public purpose for which it condemned 

the 1.9-acre L&R Parcel, concluding “[t]here is no evidence to support such a claim.” 

Id. The BVA Parties decided not to challenge the trial court’s denial of their argument 

that the Township had abandoned the purpose of the condemnation. In a decision dated 

July 20, 2021, this Court upheld the plan approval. See Brandywine IV.

4. BVA Parties’ Federal Court Action Seeking Return of the 

Condemned Property

On September 14, 2020, the BVA Parties filed a lawsuit against the 

Township in the United States (U.S.) District Court for the Eastern District of 

Pennsylvania challenging the same approval of the 2018 Plan and arguing that the 

Township condemned their property “for the construction of a new Township street” 

but abandoned this purpose when “the Township agreed to convey an easement for 

[Developer] to exclusively use the condemned property” for “a sanitary sewer line,” “a 

stormwater pipe” and “associated outfall facilities.” Brandywine Village Associates v. 

East Brandywine Township (E.D. Pa., No. 20-2225, filed Sep. 14, 2020) 2020 WL 

5517353 at *7. The BVA Parties argued that by “chang[ing] the purpose of the 

condemnation and dispos[ing] of the condemned L&R land” without first offering the 

land to the BVA Parties, the Township deprived them of their procedural and 

substantive due process rights. Id. Specifically, they complained that Section 310(a) 

the Code does not provide an “express process by which the abandoned property is 

returned to the condemnee.” Id. at *8. They also argued that they had a constitutionally 

protected interest in their expectancy of an offer to re-purchase the land from the 

Township in the event the Township first abandoned the public purpose and then seeks 
10

to dispose of the land within ten years of the condemnation under Section 310(a) of the 

Code. In rejecting these arguments, the U.S. District Court explained:

Despite the [BVA Parties’] contention the Eminent Domain 

Code does not provide an “express process by which the 

abandoned property is returned to the condemnee,” the [BVA 

Parties] had the opportunity to raise, and in fact did raise, 

their abandonment argument as an objection to the 2018 

Plan. The Township considered and rejected the [BVA 

Parties’] abandonment claims. [The BVA Parties] appealed 

the Township’s decision to the Court of Common Pleas. The 

court rejected this same argument not for a procedural 

reason, but because the [BVA Parties] adduced no evidence 

after several days of hearings before the state court judge of 

the Township “abandoning” the public purpose for which it 

condemned their property. They had the opportunity to 

challenge it again in their appeal to the Commonwealth 

Court, but for some reason, chose not to do so. Given [the 

BVA Parties] have now had the opportunity in three forums 

to present their abandonment argument, they have been 

afforded “full judicial mechanisms” to review their 

objections to [Developer’s] use of the condemned land.

Id. (emphasis added) (footnotes omitted).

The U.S. District Court further explained, that 

[f]or the BVA Parties’ expectancy in an offer to repurchase 

the property to arise under Section 310 of the Eminent 

Domain Code, several conditions must exist: (1) the 

Township cannot have improved the property; (2) the 

Township must abandon the public purpose; (3) the 

Township must seek to dispose of the land; and (4) fewer than 

ten years must have elapsed since the condemnation. As 

discussed above, a Pennsylvania court has already ruled 

one of triggering events—the Township’s abandonment 

of the public purpose—has not occurred. 

Id. at *9 (emphasis added). 
11

Accordingly, because there was no abandonment of the public purpose of 

the condemnation of the 1.9-acre L&R Parcel, the U.S. District Court concluded that 

the BVA Parties had failed to state a claim for which relief could be granted. 

5. Township Resolution No. 3

On March 4, 2021, the Township passed Resolution No. 3 of 2021, titled 

“A Resolution of the Board of Supervisors of the Township of East Brandywine, 

Chester County, For Return of Excess Condemned Land” (Resolution No. 3). (R.R. at 

1160a.) This Township action was undertaken by a then-new two-person majority of 

the three-person Board of Supervisors, George Scherbak and Jason Winters. 

Resolution No. 3 stated that the 1.9-acre L&R Parcel was unnecessary for, and did not 

serve, the public purpose for which the Township had condemned it. Id. On August 

23, 2021, the Township purported to transfer one acre of the condemned 1.9-acre L&R 

back to the BVA Parties by filing a “Declaration of Disposition of Land” with the trial 

court. Id. at 1151a-54a. 

In December 2021, Developer filed a complaint against the BVA Parties, 

the Township, and Township Supervisors Scherbak and Winters, seeking, inter alia, to 

invalidate the transfer of the condemned property to the BVA Parties. Id. at 1032a. 

Developer also filed a Petition for Emergency Injunctive Relief to invalidate the 

transfer. Id. at 1163a. On April 4, 2022, and April 11, 2022, the trial court entered 

orders invalidating the transfer of the condemned property to the BVA Parties. Id. at 

1163a-68a. On April 7, 2022, the Township, under newly a elected Board of 

Supervisors, rescinded the return of the property. On July 11, 2023, this Court, en banc, 

vacated these orders and remanded the matter to the trial court, on the basis that the 

trial court had granted what amounted to permanent injunctive relief in its preliminary 

injunction orders. See Brandywine V. On December 18, 2023, the trial court again 
12

issued a preliminary injunction on remand, a decision which is currently pending on 

appeal in this Court at Carlino East Brandywine, L.P. v. East Brandywine Township, 

(Pa. Cmwlth., No. 79 C.D. 2024).

B. BVA Parties’ Underlying Action for Declaratory and 

Injunctive Relief 

The BVA parties commenced this action on May 24, 2019, seeking 

declaratory judgment and injunctive relief.4 The operative complaint was filed July 15, 

2019. (R.R. at 927a-40a.) The BVA Parties aver as follows:

34. Neither the private sanitary sewer line purpose nor the 

private stormwater conveyance purpose was identified in the 

2014 Resolution or the Declaration of Taking. 

35. The sanitary sewer line for the exclusive benefit of 

[Developer] is a new use not contemplated in the 2014 

Resolution or Declaration of Taking.

36. The underground stormwater pipe and associated outfall 

facilities for the exclusive benefit of [Developer] is a new use 

not contemplated in the 2014 Resolution or Declaration of

Taking.

37. Conveying these easements to [Developer] to exclusively 

use the condemned section of the L&R Property constitutes 

disposal of the property by a sale, gift, devise or other 

transfer.

(Amended Complaint, ¶¶ 34-37; R.R. at 933a-34a.)

The BVA Parties seek at Count I a declaration that the Township is in 

violation of Section 310(a)(1) of the Code, and an injunction to prohibit the Township 

from disposing of the 1.9-acre L&R Parcel to Developer without first offering it to the 

4 This action was stayed pending resolution of the zoning appeal filed by the BVA Parties. 

The zoning appeal concluded in early 2022. On November 1, 2022, the trial court lifted the stay. 

(R.R. at 1195a.)
13

BVA Parties. The BVA Parties aver that, in approving the 2018 Plan,5the Township 

abandoned the public purpose for which it condemned the 1.9-acre L&R Parcel by 

condemning property for a public street and associated public stormwater facilities but 

granting Developer an easement to use it for private purposes, including a sanitary 

sewer line, an underground stormwater pipe, and associated outfall facilities, none of 

which, they claim, was identified in the original condemnation. The complaint alleges:

29. In July of 2018, [Developer] submitted a new land 

development plan for the development of [its] Property (“the 

2018 Plan”).

30. The 2018 Plan includes development of the former 

portions of the [BVA Parties’] and the L&R Property land, 

now owned by the Township through condemnation.

31. The 2018 Plan does in fact use portions of the 

condemned L&R Property for the [C]onnector [R]oad or 

related stormwater improvements, which portions are 

not the subject of this suit. However, the 2018 Plan also 

uses substantial portions of this condemned land for new 

purely private purposes benefiting only [Developer], 

including a sanitary sewer line, and an underground 

stormwater pipe and associated outfall facilities. A 

relevant part of the Plan showing the new private uses of the

condemned portion of the L&R Property is attached as 

Exhibit 3 and is incorporated by reference as if set forth in 

full.

32. The Board, in a two to one decision, acting for the 

benefit of [Developer], on December 6, 2018, authorized the 

Board’s participation in the pending preliminary land 

development application for the 2018 Plan as a consenting 

fee simple landowner and authorized [Developer] to 

exclusively use portions of the L&R condemned land for 

5 To reiterate, the trial court affirmed the Township’s conditional approval of the 2018 Plan 

in its April 17, 2020 decision. This Court affirmed the trial court’s decision on July 20, 2021, in 

Brandywine IV. 
14

its private purposes for a sanitary sewer line and an 

underground stormwater pipe and associated outfall 

facilities from its commercial development. A copy of the 

December 6, 2018 Board of Supervisors’ Work Session 

Minutes is attached as Exhibit 4 and is incorporated by 

reference as if set forth in full.

(Amended Complaint, ¶¶ 29-32; R.R. at 932a-33a) (emphasis and double emphasis 

added).

The BVA Parties assert that by approving the 2018 Plan, the Township 

abandoned the public purpose of the condemnation and must now offer the 1.9-acre 

L&R Parcel to the BVA Parties, as condemnee, pursuant to Section 310(a)(1) of the

Code.6 The BVA Parties acknowledge that the attempts of Developer to develop this 

Property have been the subject of numerous land development appeals and court 

actions. However, they allege that “[t]he relief sought in this suit is unique and different 

from the relief sought in the other actions.” (Amended Complaint at 6, n.1; R.R. at 

932a.)

Developer filed a motion for summary judgment on September 27, 2022. 

The Township joined in this motion on October 5, 2022. Developer argued the BVA 

Parties’ claim for the return of the condemned property on the grounds that it was 

excessive and abandoned are barred under the principle of collateral estoppel because 

three prior judicial pronouncements, involving the same parties, and the same subject 

matter, rejected the notion that the Township abandoned the 1.9-acre L&R Parcel by 

6 The BVA Parties seek at Count II injunctive relief to prohibit the Township from closing the 

access drive, except pursuant to the provisions of the Second Class Township Code, Act of May 1, 

1933, P.L. 103, as amended, 53 P.S. §§ 65101-68701, and the General Road Law, Act of June 13, 

1836, P.L. 551, as amended, 36 P.S. § 1981. The BVA Parties did not raise a question regarding 

BVA’s condemned easement for the access drive or any claim under the Road Law, nor did they 

make any argument in support of such claims. Therefore, we find any argument regarding the trial 

court’s ruling regarding the Road Law or the BVA Parties’ easement for the access drive to be 

abandoned. 
15

allowing Developer to install sewage and storm water conveyance lines on it. 

Therefore, the BVA Parties are barred from relitigating whether the taking was 

excessive and the purpose abandoned. Regarding the underlying merits, Developer 

and the Township argued that Section 310(a)(1) of the Code does not mandate the 

return of any portion of the condemned parcel to the BVA Parties, and Section 308 of 

the Code requires that declarations of relinquishment or abandonment of condemned 

property must be filed within two years of the date of taking. Because the BVA Parties 

filed this action five years of the date of taking, the relief they seek is time barred.

After hearing argument, the trial court issued an order on October 3, 2023, 

granting the motion for summary judgment and dismissing the action with prejudice. 

Although noting that the parties “had previously litigated the question of whether the 

taking, which underlies this matter, was excessive,” and that appellate courts have made 

clear “beyond peradventure” the taking in this case was not excessive, the trial court 

granted summary judgment as to Count I, on different grounds. (Trial Ct. op., October 

3, 2023, at 3, n.1). Specifically, addressing the legality of the BVA Parties’ claims 

under Section 310(a) of the Code, the trial court concluded that the BVA Parties are not 

entitled to relief as a matter of law. Relevantly, the trial court found that the language 

of Section 310(a), i.e., “abandons the purpose for which the property has been 

condemned,” was unambiguous. It held that Section 310(a) “excludes the 

abandonment of less than the entire project on a property condemned in fee.” Id. at 

6 (emphasis added). Applying the language to the facts, the trial court found that 

Resolution No. 3 did not constitute an “abandonment” of the entire Connector Road 

Project; therefore, the Township was not required to offer the 1.9-acre L&R Parcel to 

the BVA Parties under Section 310(a)(1). 
16

First, the trial court determined that Resolution No. 3 did not operate to 

dispose of the condemned property as contemplated under Section 310(a) of the Code. 

It pointed out the following flaws with Resolution No. 3:

Resolution No. 3 does not identify the subject property with 

any specificity nor does it state whether the [P]roperty was 

condemned in fee. Resolution No. 3 does not state that it 

applies to the entire fee of any of the Property condemned by 

the Township. Resolution No. 3 does not state that the 

Township, as condemnor, has abandoned the Township street 

project (Connector Road Project), which is for the purpose of 

serving the public by facilitating safe and efficient vehicular 

traffic and pedestrian access between Horseshoe Pike (Route 

322) and North Guthriesville Road.

(Trial Ct. op., at 3-4) (citations and footnote omitted). 

The trial court concluded that “the Township never abandoned the 

Connector Road Project as required by Section 310(a) and the second predicate, 

abandonment of purpose, has not been satisfied.” (Trial Ct. op., at 7.) It explained:

Because Section 310(a) mandates that a condemnor may

dispose of condemned property only “[i]f a condemnor has 

condemned a fee and then abandons the purpose for which 

the property has been condemned,” the failure to satisfy 

either of those requirements precludes any further step 

towards disposition by the condemnor. The failure to 

abandon the Connector Road Project is a fatal defect that

requires a finding that, as a matter of law, the BVA [P]arties 

do not have a right or interest in any portion of the 

condemned property pursuant to Section 310(a)(1) on which 

to base their claims for relief set forth in Count I. 

(Trial Ct. op., at 7-8). 

The trial court distinguished Biernacki v. Redevelopment Authority of the 

City of Wilkes-Barre, 66 Luz. Leg. Reg. Reports 205 (1974), vacated on other grounds, 

379 A.2d 1366 (Pa. Cmwlth. 1977), which was the only case the trial court found that 
17

addresses abandonment of less than the entire project under a repealed version of the 

current Code. In Biernacki, the common pleas court held that a section of the 

predecessor of the current Code did not require the abandonment of the entire project 

as the condition under which the municipality is required to offer to reconvey the 

property to the condemnee. Id. at 221. The trial court concluded that Biernacki was 

not persuasive because the case (1) predated the current Code by more than thirty years,

and (2) the Biernacki court did not engage in any meaningful statutory analysis.

II. Issues

On appeal,7the BVA Parties offer five arguments. They assert that (1) the 

trial court erred by holding that Resolution No. 3 did not operate to dispose of the 

condemned property; (2) the trial court erred by concluding Section 310(a) of the Code

requires an entire public project to be abandoned before a condemnor may dispose of 

excess condemned property not used for the project; (3) the decision in Brandywine III

that the Township’s taking was not excessive is not relevant because the Township gave 

Developer permission to use the 1.9-acre L&R Parcel for its sewer and stormwater 

lines after Brandywine III was decided; (4) the trial court erred in distinguishing 

Biernacki; and (5) the trial court erred in not recognizing the Township’s return of the 

excess property.

In response, Developer and the Township assert that the very issue the 

BVA Parties assert in this declaratory judgment action, namely, whether the taking was 

excessive, and the purpose of the condemnation was abandoned, has already been fully 

7 The Court’s standard of review where a trial court has granted a motion for summary 

judgment is limited to determining whether the trial court committed an error of law or abused its 

discretion. Westmoreland County v. Rodgers, 693 A.2d 996 (Pa. Cmwlth. 1997). Summary judgment 

will be affirmed if there is no genuine issue of material fact, and it is evident that the moving party is 

entitled to judgment as a matter of law. Id.
18

litigated in three prior judicial proceedings. Therefore, the entire action is barred under 

the doctrine of collateral estoppel.8 Specifically, Developer and the Township contend 

that the BVA Parties’ claim in this lawsuit that the Township conferred a private benefit 

on Developer by consenting to installation of the sewer line and stormwater pipe on 

the former L&R Parcel and/or abandoned the public purpose for the condemnation was

already resolved against the BVA Parties in prior judicial proceedings, including: (1) 

Brandywine III (affirming trial court’s decision to overrule preliminary objections to 

the condemnation); (2) the trial court’s April 17, 2020 decision affirming the 2018 Plan 

approval and rejecting the BVA Parties’ contention that the Township had abandoned 

the purpose of the condemnation;

9

and (3) the federal court action, wherein the U.S. 

District Court, in dismissing the lawsuit, held that the trial court had previously 

determined that Township did not abandon the purpose in condemning the property. 

In addition, the Developer and the Township argue that the BVA Parties’ 

argument relating to the enforceability of Resolution No. 3 is moot because, as the BVA 

Parties acknowledge, the Township passed a subsequent resolution repudiating 

Resolution No. 3. (R.R. at 1182a.) Developer and the Township contend that because 

Resolution No. 3 is no longer in effect and, in fact, was repudiated, the BVA Parties’ 

argument that this Court should enforce Resolution No. 3 must be denied as moot. 

Alternatively, Developer and the Township argue that the Township did not abandon 

the entire purpose of the condemnation by granting an easement to Developer to install 

8 The Township and Developer contend that this Court may affirm a trial court’s order based 

on a different rationale if the basis for the decision is clear on the record. Guy M. Cooper, Inc. v. East 

Penn School District, 903 A.2d 608, 618 (Pa. Cmwlth. 2006). 

9 Again, the BVA Parties did not appeal the trial court’s April 17, 2020 ruling that the 

Township had not abandoned the purpose of the condemnation for which it acquired the condemned 

property.
19

sewer and stormwater conveyance lines; therefore, Section 310(a) of the Code does not 

require the return of the condemned property. 

Because we find it to be dispositive, we address the estoppel claim first.

III. Discussion

A. Collateral Estoppel 

In Pennsylvania, the doctrine of collateral estoppel is designed to prevent 

the relitigation of a question of law or issue of fact, which has already been litigated in 

a court of competent jurisdiction. Commonwealth Department of Transportation v. 

Martinelli, 563 A.2d 973 (Pa. Cmwlth. 1989). 

To invoke collateral estoppel, five elements must be present: (1) the issue 

decided in the prior case must be identical to the issue in the present case; (2) there was 

a final judgment on the merits; (3) the issue must be essential to the judgment; (4) the 

party against whom the estoppel is asserted must have had a full and fair chance to 

litigate on the merits; and (5) the party against whom the estoppel is asserted must be 

a party or in privity with a party in the prior case. City of Pittsburgh v. Zoning Board 

of Adjustment of City of Pittsburgh, 559 A.2d 896, 901 (Pa. 1989).

Where the issue in two proceedings is the same, the fact that the relief 

sought in the latter of the two differs from that sought or obtained in the former will 

not prevent the bar by collateral estoppel of the relitigation of the issue. Balsbaugh v. 

Zeck, 500 A.2d 208 (Pa. Cmwlth. 1985). Where the controlling facts and applicable 

legal rules remain unchanged from the prior case, collateral estoppel may apply. Clark 

v. Troutman, 502 A.2d 137 (Pa. 1985).

Central to the BVA Parties’ action for declaratory and injunctive relief is 

their factual claim that the Township abandoned the public purpose of the 

condemnation of the 1.9-acre L&R Parcel by allowing Developer to use the Township’s 
20

stormwater facilities on land taken by the Township. (Amended Complaint, ¶¶ 35-37; 

R.R. at 933a-34a.) They argue that because the Township has abandoned the public 

purpose of the condemnation of the 1.9-are L&R Parcel, it must be returned to them

under Section 310(a) of the Code. 

In an attempt to minimize the preclusive effect of the prior proceedings on

their present attack on the condemnation’s public purpose, the BVA Parties frame

Developer’s use of the 1.9-acre L&R Parcel for stormwater management as involving

events taking place only after this Court affirmed the condemnation. Specifically, they 

assert that this “action arose from new factual issues when the Township diverted part

of the Connector Road property to Developer’s private stormwater and sewer use and 

joined Developer’s application in December 2018 and approved Developer’s plans in 

2019.” (BVA Parties’ Reply Br. at 7) (emphasis added). Along these same lines, they 

assert that “[s]ince the Township’s condemnation, the Township has approved 

facilities on the condemned property for the sole private benefit of [] Developer.” Id.

at 3 (emphasis added). See also Amended Complaint, ¶ 31 (“the 2018 Plan also uses 

substantial portions of this condemned land for new purely private purposes benefiting 

only [Developer], including a sanitary sewer line, and an underground stormwater pipe 

and associated outfall facilities”) (emphasis added). They also claim that

[t]his action challenges [the] Township’s December 6, 2018 

resolution and December 7, 2018 letter permitting Developer 

to submit a development plan depicting the use the 

condemned property for a sanitary sewer line and multiple

stormwater facilities. The Township’s actions favoring 

Developer did not take place until all hearings in the 

condemnation proceeding had concluded.

(BVA Parties’ Reply Br. at 5.)

In support of their contention that “conditions have changed since the 

condemnation case,” id. at 6, the BVA Parties ask the Court to compare the MOU to 
21

the 2018 Plan. They assert that the MOU giving rise to the condemnation permitted 

Developer to ask to build a sewer line to be conveyed to an independent authority after 

Developer had received all approvals and entered into land development and financial 

security agreements. They claim the condemnation said nothing about a Township 

agreement with Developer for specific facilities, and the relevant Township exhibits to 

the condemnation show no such facilities. Id. at 6. In other words, they suggest that 

because the condemnation only contemplated Developer’s use of the 1.9-acre L&R 

Parcel for stormwater management and the 2018 Plan the Township actually turned 

the property over to Developer, the approval of the 2018 Plan differed meaningfully 

from the MOU and the condemnation, and this action, therefore, “arose from new 

factual issues.” Id. at 7. We disagree that the Township’s approval of the 2018 Plan 

marked a “new factual development” separate and apart from the facts addressed in the 

condemnation proceedings. We also reject the suggestion that the issue of 

abandonment of a public purpose has not been settled before now.

As noted, the BVA Parties challenged the MOU in the condemnation. The

MOU expressly provided the easement to Developer to install the sewage conveyance 

line. (R.R. at 31a-32a.) The trial court determined in the condemnation that the 

Township allowed Developer to install “a stormwater pipe that will run along the 

southern boundary of the condemned portion of the L&R Parcel.” Id. at 1081a. The 

Township’s approval of the 2018 Plan and the grant of the easements to install the 

sewage lines and drainage lines simply reaffirmed that which was contemplated all 

along. The 2018 Plan necessarily continued to depict the Connector Road and the 

related stormwater management within the limits of the condemned property. In its 

approval of the 2018 Plan, the Township merely confirmed the consent it had agreed 
22

to grant in the MOU and acknowledged in defense of the condemnation. It did not 

encompass anything new. 

The BVA Parties have objected to Developer’s proposed use of the 1.9-

acre L&R Parcel for stormwater management from day one. Installation of 

Developer’s sewage conveyance lines for stormwater on the 1.9-acre L&R Parcel was 

contemplated by all parties as early as the August 2014 MOU. The BVA Parties 

specifically argued in their preliminary objections to the condemnation that 

Developer’s proposed use of part of the condemned property for its stormwater

management negated the public purpose of the condemnation:

[The BVA Parties] argue that the condemnation is not 

entirely intended for use as a road. Instead, the majority 

of the L&R Parcel will be used for stormwater facilities, 

some of which may be used by Developer to manage 

stormwater from its development.

(R.R. at 823a) (emphasis added).

The legality of the taking was upheld by the trial court and affirmed on 

appeal. As noted, the trial court overruled the preliminary objections, concluding that 

the condemnation, including the taking of the 1.9-acre L&R Parcel, was intended for 

the public purpose of constructing the Connector Road. Id. at 824a. This Court 

affirmed the trial court’s decision in Brandywine III, holding that Developer’s

incidental use of the 1.9-acre L&R Parcel for a sanitary sewer line, and an underground 

stormwater pipe, did not mean that the taking was for a private rather than public 

purpose. We cannot agree that resolution of the issue should be limited to just that case, 

when the litigation to resolve that issue and the issue before us necessarily involves the 

same parties, the same ultimate issues, and the same set of facts. The fact that the relief 

available in the two proceedings differs does not prevent collateral estoppel from 

barring relitigation of the issue. 
23

In Miller v. Commonwealth Board of Property, 533 A.2d 819 (Pa. Cmwlth. 

1987) (Miller II or “the quiet title action”), Irving Miller filed a complaint styled as an 

action to quiet title, seeking a final decree declaring that he was the owner in fee simple 

of a property located at 1517-23 Spring Street (property). Previously, the Department 

of Transportation (DOT) had filed a declaration of taking condemning the property for 

the construction of the Vine Street Expressway in Philadelphia, which resulted in 

litigation, including an appeal to this Court. See Miller v. Department of 

Transportation, 498 A.2d 1370 (Pa. Cmwlth. 1985) (Miller I). Miller I was an appeal 

from the trial court’s order which overruled Miller’s preliminary objections to DOT’s 

declaration of taking of the property. Miller had argued that by leasing the condemned 

property to the Philadelphia Parking Authority as a parking lot during the delay of 

construction, DOT had abandoned the public transportation purpose for condemning 

the property. The trial court overruled the preliminary objections and Miller appealed. 

The issue before this Court was whether DOT “abandoned the property or exceeded its 

permissible authority in condemning the fee.” Miller I, 498 A.2d at 1373. We 

ultimately held that DOT did not abandon the easement it acquired by condemnation 

by leasing the easement as specifically permitted by its regulations. Miller then filed 

his quiet title action.

In the quiet title action, Miller argued once again that DOT had abandoned 

the purpose for which it had condemned the property, to wit, the construction of a 

highway, and sought a declaration that he was the owner in fee simple of the property. 

533 A.2d at 820. DOT filed a motion to dismiss the quiet title action, arguing that in 

light of this Court’s prior decision in Miller I, Miller’s quiet title action was barred by, 

inter alia, collateral estoppel. We agreed that the quiet title action was precluded by 

our prior determination in Miller I because the subject matter of the quiet title action 
24

and Miller I was the same, namely, the property located at 1517-23 Spring Street, and 

the ultimate issue in both cases was the same, i.e., whether, due to the alleged 

abandonment of DOT’s easement, ownership had reverted to Miller. Miller II, 533 

A.2d at 821. 

Here, after a careful review of both Brandywine III and the case at bar we 

conclude that the elements for application of collateral estoppel have been met. Both 

actions are centered on Developer’s use of a portion of the condemned 1.9-acre L&R 

Parcel for its stormwater management. The issue decided in the condemnation 

proceedings (whether the taking of the 1.9-acre L&R Parcel was for Developer’s 

private purpose) is identical to the one presented in this action (whether the taking of 

the 1.9-acre L&R Parcel was “abandoned” because it is being used for Developer’s 

private purpose). Whether the taking of the 1.9-acre L&R Parel was for a private or 

public purpose is the same in both cases. The BVA Parties had a full and fair chance 

to litigate the issue, there was a final judgment on the merits, the issue was essential to 

that judgment, and although Developer was not a named party to the condemnation, it 

was in privity with the Township pursuant to the MOU. Thus, as in Miller II, we are 

constrained to conclude that, as a matter of law, the doctrine of collateral estoppel 

precludes the BVA Parties from relitigating the issue of the Township’s alleged 

abandonment of the purpose of the condemnation and the return of the 1.9-acre L&R 

Parcel under Section 310 of the Code.

Although this resolves the issue, we will for the sake of completion, 

address Developer’s arguments that the BVA Parties’ litigation against the approved 

2018 Plan and the federal litigation also bar this action under collateral estoppel. 

In its appeal of the approval of the 2018 Plan, the BVA Parties raised the 

same issue raised here—the alleged abandonment of the public purpose of the 1.9-acre 
25

L&R Parcel due to Developer’s use of the 1.9-acre L&R Parcel to manage stormwater 

from its development. (R.R. at 1013a.) In fact, the BVA Parties specifically claimed 

in their appeal to the trial court of Developer’s approved 2018 Plan violated Section 

310(a) of the Code and that the 1.9-acre L&R Parcel must be returned to them under 

Section 310 of the Code because the Township had abandoned the public purpose for 

that parcel by allowing Developer to install the sewage and drainage pipes for 

Developer’s private benefit. Id. at 1013a, 1145-46a. The BVA Parties had a full and 

fair opportunity to litigate the implications of Developer’s activities on the public 

purpose of the taking. Based on the record created in the four hearings before the 

Board, the trial court disagreed because the BVA Parties presented no evidence to 

support the claim. The trial court, therefore, rejected the BVA Parties’ argument that 

the Township’s consent to Developer’s 2018 Plan to install conveyance lines on the

1.9-acre L&R Parcel constituted abandonment of the purpose for condemning that 

parcel. Furthermore, the trial court rejected their argument that the mere fact that the 

conveyance lines were permitted to be installed on the 1.9-acre L&R Parcel was

sufficient to establish the Township’s abandonment of the purpose for the

condemnation. The BVA Parties did not appeal the trial court’s determination that the

Township had not abandoned the purpose of the condemnation. This Court affirmed 

the trial court’s April 17, 2020 decision upholding the 2018 Plan approval. Brandywine 

IV. The trial court’s decision that there was no evidence to establish that the Township 

had abandoned the public purpose for the 1.9-acre L&R Parcel under Section 310 of 

the Code constitutes a decision on the merits10 and is final and binding on the BVA 

10 The BVA Parties assert that the trial court never addressed the merits of their claim of 

abandonment holding instead that there was “no evidence” to support it. Therefore, they assert, its 

decision upholding the 2018 Plan did not constitute a decision on the merits. (BVA Parties’ Reply 

Br. at 9.) We disagree. As noted, the BVA Parties chose not to present any evidence on their 

(Footnote continued on next page...)
26

Parties. Again, they are barred under principle of collateral estoppel from relitigating 

the trial court’s unappealed decision that the Township had not abandoned the purpose 

for the condemnation by allowing Developer to install conveyance lines on the 1.9-

acre L&R Parcel.

Lastly, we agree with Developer that the U.S. District Court’s dismissal 

of the BVA Parties’ federal litigation against the Township bars the present action. Just 

as in this action, the BVA Parties argued that the Township had violated their due 

process rights by allowing Developer to install conveyance lines on the 1.9-acre L&R 

Parcel and that, therefore, the parcel should be returned to them under Section 310(a) 

of the Code. They specifically asked the U.S. District Court to return the parcel to them 

because the Township had allegedly abandoned the public purpose for which it 

condemned the parcel. One of the underlying factual issues decided in the federal case 

was whether the Township had abandoned the 1.9-acre L&R Parcel by allowing 

Developer to use it for its stormwater management. That issue is the same issue raised 

in this case. The U.S. District Court dismissed the claim primarily for the reason that 

the state courts had already determined that the 1.9-acre L&R Parcel was not 

abandoned for the reasons alleged by the BVA Parties, so for that reason their federal 

claims failed. 

abandonment claim even though they had raised it before the trial as a basis to challenge the Board’s 

approval of the 2018 Plan. Contrary to the BVA Parties’ position, the application of the doctrine of 

collateral estoppel does not turn on whether they did present the merits of their claim in the prior 

action, but rather on whether they had the opportunity to do so. Here, they had the opportunity to 

present that claim. Any failure of the trial court to hear the merits of the controversy was due solely 

to the BVA Parties’ failure to present evidence. In that situation, courts have held that for purposes 

of collateral estoppel, such decision constitutes a decision on the merits. See Albright v. Wella Corp., 

359 A.2d 460 (Pa. Super. 1976) (prior decision was a decision on the merits where the plaintiff chose 

in the prior proceeding not to present evidence on the same claim raised in the second case).
27

IV. Conclusion

For the above reasons, we conclude that the decisions from the 

condemnation action, the appeal of the development plan approval to the trial court, 

and the federal constitutional challenge—all of which are final and binding—establish 

that the BVA Parties are collaterally estopped from relitigating the issue of the 

Township’s alleged abandonment of the purpose of the condemnation and the return of 

the 1.9-acre L&R Parcel under Section 310(a)(1) of the Code. Based on this 

determination, it is unnecessary for us to analyze the BVA Parties’ other allegations of 

error. Accordingly, we affirm the decision to dismiss the case with prejudice. 

________________________________

PATRICIA A. McCULLOUGH, Judge

Judge Fizzano Cannon did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brandywine Village Associates, LP, :

L&R Partnership, LLC, :

and John R. Cropper, : 

Appellants : No. 1291 C.D. 2023

:

 v. :

:

East Brandywine Township, and :

Carlino East Brandywine, L.P. :

ORDER

AND NOW, this 10th day of July, 2024, the October 3, 2023 order of 

the Court of Common Pleas of Chester County is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge