IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Susan G. Sterrett, :

:

Appellant :

:

 v. : No. 665 C.D. 2022

: Submitted: February 6, 2024

Borough of Churchill and :

Churchill Creek Project, LLC :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: March 11, 2024

Susan G. Sterrett (Objector) appeals the order of the Allegheny County 

Court of Common Pleas (trial court) dismissing her land use appeal as moot. We 

affirm.

On December 7, 2020, Churchill Creek Project, LLC (Applicant) filed 

a conditional use application (Application) and a land use development application

for approval to redevelop the former George Westinghouse Research & Technology 

Park into an e-commerce distribution and logistics facility (Distribution Center) use 

by Amazon on a parcel of property located at 1310 Beulah Road, Churchill Borough 

(Borough), Allegheny County (Property).

1

 A number of hearings were conducted 

1 The Property is located in the Borough’s C-1 Commercial Zoning District. Section 304-

37.1 of the Borough’s Zoning Code permits a “Distribution Center” use in the C-1 Zoning District.
2

on the Application by the Borough’s Council at which Objector appeared in 

opposition to the Application’s approval. Ultimately, on December 21, 2021, the 

Borough’s Council approved the Application in Resolution No. 4533 subject to a 

number of conditions. On January 20, 2022, Objector filed a land use appeal in the 

trial court challenging the Borough’s determination.2

On May 10, 2020, Applicant notified the Council in writing that it

withdrew the Application, along with the related land development application. On 

May 11, 2022, the next day, Applicant provided to Objector a proposed consent 

order and agreement, stating that the Application was withdrawn, that Council’s 

conditional use approval is void, that Objector’s statutory appeal before the trial 

court was withdrawn, and that the statutory appeal shall be discontinued of record 

by consent of the parties. Objector refused to sign the proposed consent order and 

agreement. See Trial Ct. Op., 8/23/22, at 1-2.

On May 26, 2022, Applicant filed a motion to deem Objector’s 

statutory appeal in the trial court as moot. See Original Record Docket Entry (OR 

Dkt.) No. 15.3 On May 31, 2022, the trial court issued an order granting Applicant’s 

motion to deem the appeal as moot and dismissing the appeal as moot, noting that 

Pennsylvania courts do not render advisory opinions. See Trial Ct. Op., 8/23/22, at 

2-3. Objector then filed the instant timely appeal of the trial court’s order.4

2 Churchill Future, a community group that was also opposed to Applicant’s proposed use 

of the Property, filed another statutory appeal of the Council’s determination to the trial court, 

which was docketed at a separate docket number.

3 Also on May 26, 2022, Churchill Future filed a motion to deem its appeal moot, which 

the trial court granted. See Trial Ct. Op., 8/23/22, at 2.

4 On June 8, 2022, Objector filed a motion for reconsideration of the trial court’s order on 

the merits, which was further amended with the indication that she was also pursuing 

(Footnote continued on next page...)
3

On appeal,5 Objector argues: (1) the trial court erred in dismissing her 

statutory appeal without considering any of the exceptions to the mootness doctrine; 

(2) the Borough’s approval of the Application was impermissible under the 

Pennsylvania Municipalities Planning Code (MPC),6in applying the wrong legal 

standard, and Resolution No. 4533 can be cited by future parties as an applicable, 

albeit incorrect, standard; and (3) Council did not recognize its obligation pursuant 

to the Environmental Rights Amendment to the Pennsylvania Constitution (ERA)7

reconsideration of the merits order. On June 29, 2022, Objector filed this timely appeal of the trial 

court’s May 31, 2022 merits order, and also filed a separate notice of appeal from the trial court’s 

order denying her reconsideration motion. Thus, this Court’s jurisdiction to review the trial court’s 

merits order has been perfected. See, e.g., Pa.R.A.P. 902(a) (“An appeal permitted by law as of 

right from a trial court to an appellate court shall be taken by filing a notice of appeal with the 

clerk of the trial court within the time allowed by Pa.R.A.P. 903 (time for appeal). A notice of 

appeal must be filed in each docket in which the order has been entered.”).

In addition, on April 25, 2023, the Borough filed an Application to Quash Objector’s appeal 

based on mootness and her lack of standing. By a May 16, 2023 order, this Court denied the 

Application to Quash and noted that the issue of standing can be addressed in Applicant’s appellate 

brief. However, by an August 28, 2023 order, we indicated that because Applicant failed to timely 

file a brief, it is precluded from filing a brief or argument in this action.

5 Because this case presents a question of law, our standard of review is de novo and our 

scope of review is plenary. Narberth Borough v. Lower Merion Township, 915 A.2d 626, 634 (Pa. 

2007). 

6 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.

7 Pa. Const. art. I, §27. Article I, section 27 states:

The people have a right to clean air, pure water, and to the 

preservation of the natural, scenic, historic and esthetic values of the 

environment. Pennsylvania’s public natural resources are the 

common property of all the people, including generations yet to 

come. As trustee of these resources, the Commonwealth shall 

conserve and maintain them for the benefit of all the people.
4

to enforce provisions in the Borough Zoning Code related to clean air, and in so 

doing, breached its fiduciary duty pursuant to Resolution No. 4533 and the ERA.

8

The Borough maintains that Objector’s land use appeal is moot because 

the Application was withdrawn, rendering the Borough’s approval via Resolution 

No. 4533 void. It argues that the mootness doctrine requires that an actual case or 

controversy exist at all stages in litigation, which it contends Objector does not 

possess. The Borough argues that, contrary to Objector’s assertion, no exception to 

the mootness doctrine applies herein. ·The Borough underlines that the reason that 

Objector filed her statutory appeal ceased to exist after the Application was 

withdrawn.9

As this Court has recently explained:

Generally, a case will be dismissed as moot if there 

exists no actual case or controversy. The existence of a 

case or controversy requires:

(1) a legal controversy that is real and not 

hypothetical, (2) a legal controversy that 

affects an individual in a concrete manner so 

as to provide the factual predicate for a 

reasoned adjudication, and (3) a legal 

controversy with sufficiently adverse parties 

8 For the sake of clarity, we consolidate and reorder the claims raised by Objector in this 

appeal on the six-page Statement of Questions Involved portion of her appellate brief. See

Pa.R.A.P. 2116(a) (“The statement of questions involved must state concisely the issues to be 

resolved, expressed in the terms and circumstances of the case but without unnecessary detail.”); 

Pa.R.A.P. 2116 Note Paragraph (a) (“Although the page limit on the statement of question 

involved was eliminated in 2013, verbosity continues to be discouraged. The appellate courts 

strongly disfavor a statement that is not concise.”).

9 The Borough also argues that Objector lacks standing because she no longer owns the

property within the Borough that gave rise to her standing to challenge the Application. Objector 

counters that she merely moved her residence within the Borough.
5

so as to sharpen the issues for judicial 

resolution.

A controversy must continue through all stages of judicial 

proceedings, trial and appellate, and the parties must 

continue to have a “personal stake in the outcome” of the 

lawsuit.

An exception to mootness will be found where (1) 

the conduct complained of is capable of repetition yet 

likely to evade judicial review; (2) the case involves issues 

of great public importance; or (3) one party will suffer a 

detriment in the absence of a court determination. It is 

within the court’s discretion to decide “substantial 

questions, otherwise moot, which are capable of repetition 

unless settled.”

Sunoco Pipeline, L.P v. Public Utility Commission, 295 A.3d 37, 51-52 (Pa. Cmwlth. 

2023) (citations omitted).

With regard to the first of the foregoing exceptions, we have observed:

Where the first exception is concerned, an issue is 

capable of repetition but will likely evade review where 

“the duration of the challenged action [is] too short to be 

fully litigated prior to its cessation or expiration; and . . . 

there is a reasonable expectation that the same 

complaining party will be subjected to the same action 

again.” Clinkscale [v. Department of Public Welfare, 101 

A.3d 137, 139-40 (Pa. Cmwlth. 2014)] (alterations in 

original); [Philadelphia Public School] Notebook [v. 

School District of Philadelphia, 49 A.3d 445, 449 (Pa. 

Cmwlth. 2012)]. One such situation existed in 

Philadelphia Public School Notebook, where this Court 

found that the issues presented in the case were moot but 

would evade judicial review in the future.

Driscoll v. Zoning Board of Adjustment of City of Philadelphia, 201 A.3d 265, 269 

(Pa. Cmwlth. 2018) (footnotes omitted). In addition, “[w]here the parties may avail 

themselves of an appeals process, this Court has held that although the issues 

underlying the appeal may be likely to recur, the issues are not likely to escape 
6

judicial review.” Id. at 270 (citations omitted). Thus, for this exception to apply, 

“[t]here must be more than a theoretical possibility of the action occurring against 

the complaining party again; it must be a reasonable expectation or a demonstrated 

probability.” R.M. v. Secretary of the Pennsylvania Department of Education Noe 

Ortega (Pa. Cmwlth., No. 49 M.D. 2022, filed December 1, 2022), slip op. at 15, 

aff’d, 303 A.3d 714 (Pa. 2023) (citation omitted).

10

In addition, with regard to the second exception, we have stated:

This Court has [also] noted that the public 

importance exception is very rarely applied. Harris v. 

Rendell, 982 A.2d 1030, 1037 (Pa. Cmwlth. 2009), aff’d, 

[992 A.2d 121 (Pa. 2010)]. “It is only in very rare cases 

where exceptional circumstances exist or where matters or 

questions of great public importance are involved, that this 

[C]ourt ever decides moot questions.” Id. (quoting Wortex 

Mills, Inc. v. Textile Workers Union of Am[erica, 85 A.2d 

851, 857 (Pa. 1952))].

Driscoll, 201 A.3d at 271. As a result, “the public importance exception is very 

rarely applied, and, where it is applied, the cases involve concrete harm to society.” 

Id. at 272.

As outlined above, Objector’s assertion that any of the foregoing rarely 

invoked exceptions apply is patently without merit. There is absolutely no 

demonstration that Objector is currently suffering any concrete injury as a result of 

the now-void Resolution No. 4533. Moreover, should this issue require redress in 

the future, there is nothing to prevent Objector from again seeking relief before both 

the Borough’s Council and the trial court in another statutory appeal. In addition, 

there is absolutely no indication that Objector herself, or any subsequent objector, 

10 See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an 

unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. [] 

Non-precedential decisions . . . may be cited for their persuasive value.”).
7

will ever be injured by Applicant in the same manner again. As a result, the first 

exception to the mootness doctrine does not apply because “the duration of the 

challenged action [is not] too short to be fully litigated prior to its cessation or 

expiration; and . . . there is [not] a reasonable expectation that the same complaining 

party will be subjected to the same action again.” Clinkscale, 101 A.3d at 139-40 

(alterations in original).

Likewise, there is no indication that the “very rarely applied” public 

importance exception is applicable herein. Driscoll, 201 A.3d at 271. Although the 

underlying legal issues are unquestionably important, there is no present “concrete 

harm to society” that will occur because the trial court refused to grant the requested 

relief regarding Resolution No. 4533. Id.

Finally, none of the parties will “suffer some detriment” based on the 

trial court’s determination that this matter is moot or in our affirmance of its order. 

Instead, as noted above, should anyone file a new application for a “Distribution 

Center” conditional use on the Property, the same objections may be raised in the 

new proceedings before the Borough’s Council and in a subsequent new statutory 

appeal before the trial court. In short, any determination as to the legal questions 

that have been presented in this case would be advisory, and any judgment or decree 

that we issue in this matter between the named parties could not be given any effect

based on the withdrawal of the Application.

11

11 See also Gulnac v. South Butler County School District, 587 A.2d 699, 700-01 (Pa. 

1991), wherein the Pennsylvania Supreme Court explained:

Once the trial court held that [the a]ppellees had no standing to seek 

injunctive relief against the striking teachers, an issue not presently 

before us, it becomes moot whether, in the abstract, the teachers had 

a theoretical right to strike under our Constitution. It was 

(Footnote continued on next page...)
8

Accordingly, the trial court’s order is affirmed.12

MICHAEL H. WOJCIK, Judge

unnecessary to reach the constitutional issue and by doing so, the 

trial court rendered an advisory opinion which our courts are not 

entitled to do. The trial court’s decision on standing ended this case. 

The complaint should have been dismissed. In not doing so, the trial 

court improperly reached to decide a constitutional issue and then 

decided it in a vacuum where it would have no practical effect on 

the parties. This was error, and a waste of judicial resources. This 

Court routinely attempts to avoid deciding cases on the basis of 

broad constitutional issues if at all possible and our trial courts 

should adhere to the very same principle. Ordinarily, the granting 

of a petition for a declaratory judgment is a matter lying within the 

sound discretion of a court of original jurisdiction. There was an 

abuse of that discretion here. The presence of antagonistic claims 

indicating imminent and inevitable litigation coupled with a clear 

manifestation that the declaration sought will be of practical help in 

ending the controversy are essential to the granting of relief by way 

of declaratory judgment. Further litigation was impossible here 

because the court held that [the a]ppellees lacked standing to pursue 

it and that determination ended the controversy, rendering the 

declaratory judgment superfluous and academic only.

(Citations and footnote omitted.)

12 Based on our disposition regarding mootness, we will not address any of Objector’s 

claims regarding the merits of Resolution No. 4533 or the Borough’s assertion that she lacks 

standing to prosecute the instant appeal.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Susan G. Sterrett, :

:

Appellant :

:

 v. : No. 665 C.D. 2022

: 

Borough of Churchill and :

Churchill Creek Project, LLC :

O R D E R

AND NOW, this 11th day of March, 2024, the order of the Allegheny 

County Court of Common Pleas dated May 31, 2022, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge