INTEREST IN LAND – LICENSES Ordinarily, a license is a revocable privilege, however, a license will become irrevocable if the licensee makes substantial expenditures of money or labor in reliance on the permitted use. Croner, Inc. v. Popovich, 53 Som.L.J. 133 The concept of irrevocable licenses is based on equitable considerations in the application of the law of equitable estoppel. Croner, Inc. v. Popovich, 53 Som.L.J. 133 For a license to become irrevocable based on expenditures of money or labor, the licensees expenditure must be substantial. Croner, Inc. v. Popovich, 53 Som.L.J. 133 The permanence of the alterations or improvements is important only insofar as it demonstrates a substantial investment. Croner, Inc. v. Popovich, 53 Som.L.J. 133 In the instant case, an irrevocable license was created by virtue of the permission given to the licensee for use of the haul road and the lack of objection to that use until the grantors death, some thirty-five years later. Croner, Inc. v. Popovich, 53 Som.L.J. 133 In the instant case, the expense of constructing improvements to the coal processing, loading and preparation facilities were substantial. Croner, Inc. v. Popovich, 53 Som.L.J. 133 The fact that the improvements theoretically could be removed, or that alternative access obtained, is not dispositive. Croner, Inc. v. Popovich, 53 Som.L.J. 133 Successors-in-title take subject to the irrevocable license if they had notice of the licenses existence prior to purchasing the burdened land. Croner, Inc. v. Popovich, 53 Som.L.J. 133 The irrevocable license did not permit licenses to construct a sediment pond since the grantors did not consent to such an undertaking and the licensee can demonstrate no reliance other than for use of the haul road. Croner, Inc. v. Popovich, 53 Som.L.J. 133 INTEREST IN LAND – PRESCRIPTIVE EASEMENT The proper action to obtain legal title of a prescriptive easement is by filing an action to quiet title. King v. Buck, 60 Som.L.J. 456 (J. Gibson) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivisions (c) and (e) of this rule, shall have the effect of an admission. Pa.R.C.P. 1029 (b). King v. Buck, 60 Som.L.J. 456 (J. Gibson) An easement by prescription arises by adverse, open, continuous, notorious, and uninterrupted use of land for twenty-one years. King v. Buck, 60 Som.L.J. 456 (J. Gibson) These elements must be proven by clear and positive evidence. King v. Buck, 60 Som.L.J. 456 (J. Gibson) Where one uses an easement whenever he sees fit, without asking leave, and without objection, it is adverse, and an uninterrupted adverse enjoyment for twenty-one years is a title which cannot be afterwards disputed. King v. Buck, 60 Som.L.J. 456 (J. Gibson) INTEREST IN LAND – PUBLIC USE A right of way may become a public road when the owner dedicates it and it is accepted by the municipality or when a borough gives notice to all abutting land owners that it is opening a public road, giving them the right to protest the opening. Long v. Hoover & Pritts & Rockwood Borough, 50 Som. 154 A right of way, which is part of a recorded plan, may become a public street when used by the public for twenty-one years if at least fifty percent of the abutting landowners consent. Long v. Hoover & Pritts & Rockwood Borough, 50 Som. 154 Public use of an unpaved area only on foot is insufficient to create a public street. Long v. Hoover & Pritts & Rockwood Borough, 50 Som. 154 Every road which has been used for public travel and maintained and kept in repair by the township for a period of at least twenty-one years is a public road having a right-of-way of 33-feet even though there is no public record of laying out or dedication for public use of the road. Second Class Township Code, 1933, May 1, P.L. 103, No. 69, § 2307, added 1995, Nov. 9, P.L. 350, No. 60, §67307. Southampton Township v. Troutman, 59 Som.L.J. 11 (2001) (P.J. Fike). Where a Township has provided regular maintenance, albeit non-exclusive, for a period of at least twenty-three years, and has then provided maintenance exclusively for the next succeeding eighteen years, the statutory prerequisite is met, and the past performance of maintenance by a private citizen and their predecessors does not destroy the public right. Southampton Township v. Troutman, 59 Som.L.J. 11 (2001) (P.J. Fike). Although a Township does not work on a public road at regular intervals, it is not necessary that the maintenance be performed in accordance with a strict, regular, and regimented schedule, it is sufficient that maintenance is performed when necessary and continues for the prerequisite period of time. Southampton Township v. Troutman, 59 Som.L.J. 11 (2001) (P.J. Fike). The public right to a road cannot be lost by a nonuser or by cessation of maintenance after the required twenty-one year period has passed. Southampton Township v. Troutman, 59 Som.L.J. 11 (2001) (P.J. Fike). When a road is maintained by a township in the manner and over the period of time as in the instant case, a private person cannot annul the public right by also repairing and maintaining the road. Southampton Township v. Troutman, 59 Som.L.J. 11 (2001) (P.J. Fike). When a Township repairs and maintains a road when deemed necessary, without objection by the previous owners of the road, for twenty-two years, and have maintained the road exclusively for an additional twenty years, the statutory prerequisites are met and the road has become a public road. Southampton Township v. Troutman, 59 Som.L.J. 11 (2001) (P.J. Fike). The selection of a right-of-way is a matter for the public utility and will not be set aside unless the powers conferred upon the public utility are wantonly, capriciously, or arbitrarily exercised. Condemnation of Rights of Way Over and Across Property of Robert M. Reed and Kathy T. Reed by the Somerset Township Municipal Authority for Sanitary Sewer Lines and Related Facilities 62 Som.L.J. 85 (2005) (Upor, J.). LANDLORD & TENANT – DUTIES OF LANDLORD A landlord has no duty to mitigate damages by re-letting. Frick v. Sorsaia, 54 Som. L.J. 202 (Sep. 8, 1995) (Fike, P.J.) LANDLORD & TENANT – EVICTION Federal Regulation 24 C.F.R. 247.4 establishes the manner by which notification of an eviction shall be made to a public housing tenant. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) The defendants sons arrest is an uncommon and objective basis for termination that does not require the notification of an exact time, date, and location. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) Interpretation of recently enacted regulatory language of 24 C.F.R. 966.4 and its effect on the duty of a landlord to consider mitigating factors before the termination of residency, presents a case of first impression. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) Generally, statutory and regulatory words must be given their common and clear everyday meaning... and should also be read in pari materia so as to give effect to all parts of the legislation if at all possible. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) Housing authorities are directed to enter into leasing agreements providing the right to evict a tenant for the drug related criminal activity of any member of the household pursuant to 24 C.F.R. 966.4(l)(5)(B), which is clearly written and not conditioned upon the consideration of mitigating factors. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) The use of the auxiliary verb may in 24 C.F.R. 966.4(l)(5)(vii)(B) was meant to express the mere possibility of the consideration of mitigating factors rather than a requirement for such consideration; furthermore, 966.4 subsections (l)(5)(vii)(B) and (l)(5)(i)(B) are more consistent with one another when may is interpreted in this manner. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) HUDs decision to remove the consideration of mitigating factors language contained in the former regulation is not insignificant and emphasizes the non-mandatory nature of the consideration of mitigating factors. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) The Supreme Court has indicated that a broad level of discretionary authority has been delegated to housing authorities in these circumstances. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) Notification of termination of a residential lease is defective when it merely alleges that defendants created and permitted loud and disturbing noises in or about their apartment at all hours of the day and night. Furthermore, it is clearly unreasonable to expect a person to adequately defend themselves against such bare assertions, and as a result of these deficiencies, defendants were denied due process. Housing Authority v. Hoffman, 63 Som.L.J. 44 (2006) (Fike, P.J.) The defendants sons arrest is an uncommon and objective basis for lease termination that does not require the landlord to provide the defendant notification of an exact time, date, and location of the incident. Housing Authority v. Hoffman, 63 Som.L.J. 44 (2006) (Fike, P.J.) While the federal regulatory language previously required a housing authority to consider mitigating factors before the eviction of a tenant, changes to the regulation indicate a change in the intent and meaning of the regulation. Housing Authority v. Hoffman, 63 Som.L.J. 44 (2006) (Fike, P.J.) Generally, statutory and regulatory words must be given their common and clear everyday meaning and should also be read in pari materia so as to give effect to all parts of the legislation if at all possible. Housing Authority v. Hoffman, 63 Som.L.J. 44 (2006) (Fike, P.J.) Housing authorities are directed to enter into leasing agreements providing the housing authority with the right to evict a tenant for the drug related criminal activity of any member of the household. Housing Authority v. Hoffman, 63 Som.L.J. 44 (2006) (Fike, P.J.) Use of the word may in the federal housing regulation was meant to express the mere possibility of the consideration of mitigating factors rather than a requirement for such consideration. Housing Authority v. Hoffman, 63 Som.L.J. 44 (2006) (Fike, P.J.) The United States Supreme Court displayed great deference to the broad discretionary powers given to HUD through 42 U.S.C. § 1437d(l)(6) and passed along to housing authorities by 24 CFR 966.4(l)(i)(2001). Housing Authority v. Hoffman, 63 Som.L.J. 44 (2006) (Fike, P.J.) The plain language of the Federal Regulations does not require, but rather allows for, discretionary consideration of mitigating factors when evicting a tenant for drug-related criminal activity. Housing Authority v. Hoffman, 63 Som.L.J. 44 (2006) (Fike, P.J.) LANDLORD & TENANT – PUBLIC HOUSING Federal Regulation 24 C.F.R. 247.4 establishes the manner by which notification of an eviction shall be made to a public housing tenant. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) The defendants sons arrest is an uncommon and objective basis for termination that does not require the notification of an exact time, date, and location. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) Interpretation of recently enacted regulatory language of 24 C.F.R. 966.4 and its effect on the duty of a landlord to consider mitigating factors before the termination of residency, presents a case of first impression. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) Generally, statutory and regulatory words must be given their common and clear everyday meaning... and should also be read in pari materia so as to give effect to all parts of the legislation if at all possible. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) Housing authorities are directed to enter into leasing agreements providing the right to evict a tenant for the drug related criminal activity of any member of the household pursuant to 24 C.F.R. 966.4(l)(5)(B), which is clearly written and not conditioned upon the consideration of mitigating factors. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) The use of the auxiliary verb may in 24 C.F.R. 966.4(l)(5)(vii)(B) was meant to express the mere possibility of the consideration of mitigating factors rather than a requirement for such consideration; furthermore, 966.4 subsections (l)(5)(vii)(B) and (l)(5)(i)(B) are more consistent with one another when may is interpreted in this manner. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) HUDs decision to remove the consideration of mitigating factors language contained in the former regulation is not insignificant and emphasizes the non-mandatory nature of the consideration of mitigating factors. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) The Supreme Court has indicated that a broad level of discretionary authority has been delegated to housing authorities in these circumstances. Housing Authority of Somerset County v. Hoffman, Paula L., 61 Som.L.J. 254 (2004) (Fike, II, P.J.) LANDLORD & TENANT – TENANCY DURATION Pursuant to 68 P.S. §250.501, a landlord desirous of repossessing real property from a tenant may notify the tenant in writing to remove from the premises, (1) at the expiration of the time specified in the notice when the term of the lease has terminated, (2) upon forfeiture of the lease for breach of its conditions, or, (3) upon failure of the tenant, upon demand, to satisfy any rent reserved and due. Reckner v. Baker, 59 Som.L.J. 327 (2002) (Gibson, J.). If the landlord chooses to utilize the third option, there must be both a demand for payment and a notice to quit, for these actions are two entirely different steps that a landlord must pursue before declaring a forfeiture of a lease. Reckner v. Baker, 59 Som.L.J. 327 (2002) (Gibson, J.). A tenancy-at-will can be terminated at any time, provided notice is given within thirty days before bringing the action, and that in the case of the expiration of a term where the lease is for any term of less than one year, the notice shall specify that the tenant shall remove within thirty days from the date of service of this notice. Reckner v. Baker, 59 Som.L.J. 327 (2002) (Gibson, J.). The purpose of a demand for payment is to afford the tenant a reasonable opportunity to make payment. Reckner v. Baker, 59 Som.L.J. 327 (2002) (Gibson, J.). The purpose of a notice to quit is to give the tenant time to prepare for eviction once he has failed to respect the demand and further to evidence the fact that the landlord is exercising his option to repossess the premises. Reckner v. Baker, 59 Som.L.J. 327 (2002) (Gibson, J.). The law is clear that when a tenant in possession under a lease continues as a hold over tenant, the law implies a new lease on the same terms and subject to the same covenants and conditions as those contained in the original lease. Reckner v. Baker, 59 Som.L.J. 327 (2002) (Gibson, J.). However, if such hold over tenant continues in possession after receiving notice from the landlord of a change in the terms of the lease, the holding over is construed as acceptance of the new terms. Reckner v. Baker, 59 Som.L.J. 327 (2002) (Gibson, J.). A hold over tenant is defined as a tenant who retains possession after the expiration of a lease, or after a tenancy-at-will has been terminated. Reckner v. Baker, 59 Som.L.J. 327 (2002) (Gibson, J.). MORTGAGES – ACT 6 & ACT 91 41 P.S. § 403 provides that the Act 6 notice must be sent at least thirty days in advance of any foreclosure. Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). Act 91 requires that a notice be sent after the mortgagor is at least 60 days contractually delinquent in his mortgage payments, and the notice must give the mortgagor thirty days to receive consumer credit counseling. Promistar Bank v. Will, 59 Som.L.J. 374 (2002) (Gibson, J.). The requirement to provide the Act 6 Notice does not apply to residential mortgages in excess of $50,000.00. Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.). Act 91 Notice, Notice of Homeowners Emergency Mortgage Assistance, requires that a notice be sent after the mortgagor is at least 60 days contractually delinquent in his mortgage payments, and the notice must give the mortgagor thirty days to receive consumer credit counseling. Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.). In the strictest sense, out of the definitions section of Act 6, 41 P.S. § 101, a residential mortgage means an obligation to pay a sum of money in an original bona fide principal amount of $50,000 or less, evidenced by…. Mooring Capital Fund, LLC v. John A. Dramesi, 63 Som.L.J. 23 (2006) (Klementik, J.). The general authority found in section 1680.401(c) of the Homeowners Emergency Assistance Act indicates that the term mortgage shall include any obligation evidenced by a security document and secured by a lien upon real property located within the Commonwealth. Mooring Capital Fund, LLC v. John A. Dramesi, 63 Som.L.J. 23 (2006) (Klementik, J.). Due to the applicability of the mortgage at issue herein as a mortgage under Act 91, and with the Act 6 notices provided within the Act 91 notice to the Defendant herein, the Defendant may exercise his rights under Act 6 relative to cure of his default and the opportunity to place himself in the same position he would otherwise have been without the initial default. Mooring Capital Fund, LLC v. John A. Dramesi, 63 Som.L.J. 23 (2006) (Klementik, J.). The Court has been unable to find any cases that have taken the step to include the Act 6 maximum lawful rate of interest to mortgages in excess of $50,000.00 and accordingly, we decline to do so in this case. We are, however, still of the opinion that the notice requirements of Act 6 are applicable to the subject residential mortgage due to the broader definition found in Act 91. Act 91 makes no specific referral to the maximum lawful interest rate provisions of Act 6 and, accordingly, we decline to make the connection. Mooring Capital Fund, LLC v. John A. Dramesi, 63 Som.L.J. 23 (2006) (Klementik, J.). Act 6 is an attempt to regulate the process by which the lender recovers under its mortgage obligation. See 41 P.S. § 403. Within this context, through 41 P.S. § 406, the legislature balanced the competing interests and established certain bright line rules for determining a residential mortgagees right to pass on its legal expenses to the borrower. Mooring Capital Fund, LLC v. John A. Dramesi, 63 Som.L.J. 23 (2006) (Klementik, J.). Act 6 allows a residential mortgage lender to charge the debtor with its actual and reasonable attorneys fees. A determination of reasonableness requires the Court to engage in a lodestar analysis that takes into consideration the number of hours reasonably expended times a reasonable hourly rate increased or decreased depending upon any additional factors involving case contingency or work product quality. The issue in these cases is not necessarily the amount of fees the attorney has charged to the Plaintiff-Lender; it is rather the reasonable amount of fees to be charged back to the Defendant-Borrower. It is inherent in the statute that, in a particular case, a lender may not receive full reimbursement for legal expenses, which it may have reasonably incurred. Mooring Capital Fund, LLC v. John A. Dramesi, 63 Som.L.J. 23 (2006) (Klementik, J.). Act 6 is designed to be a consumer protection statute. Aside from providing mortgage debtors with advance notice and understanding of their default prior to the commencement of foreclosure proceedings, the statute protects the debtor from over zealous mortgage foreclosure activity and provides the debtor with time to work on options. Mooring Capital Fund, LLC v. John A. Dramesi, 63 Som.L.J. 23 (2006) (Klementik, J.). MORTGAGES – FORECLOSURE Pursuant to 41 P.S. § 403, Notice of Intention to Foreclose shall be in writing, sent to the residential mortgage debtor by registered or certified mail at his last known address. Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.). A mortgage foreclosure is strictly de terris in nature. Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.). MORTGAGES – GENERALLY A mortgage is a transaction where real property is transferred solely for the purposes of serving as security, and where no sale is intended. In essence, a mortgage is a defeasible deed requiring the grantee to reconvey the property held as security to the grantor upon satisfaction of the underlying debt or the fulfillment of established conditions. Breining v. Breining, 54 Som. 54 Although a mortgage is usually accompanied by a bond and warrant, or promissory note, the mortgage alone is a valid instrument and may be enforced without the existence of a separate bond and warrant. Breining v. Breining, 54 Som. 54 No particular form of words is necessary to form a mortgage. It is usually required that the instrument be in writing, be signed by the owner of the particular property mortgaged and that it specify the debt for which it is security. Breining v. Breining, 54 Som. 54 A mortgage, to be effective, must also describe the property sufficiently to enable it to be located and identified. Breining v. Breining, 54 Som. 54 A mortgage consists of a conveyance of the property and a defeasance, which is an agreement that the conveyance shall be as security only and shall cease when the debt is paid. It is this defeasance which converts an otherwise absolute conveyance into the pledge called a mortgage. Breining v. Breining, 54 Som. 54 An instrument is not a deed but a mortgage when the conveyance is expressly subject to the right of redemption by the grantor. The reservation, or defeasance clause, is what gives character to the instrument, and reduces it to a mere security or mortgage. Breining v. Breining, 54 Som. 54; Resolution, Petition to Appoint a Receiver, 56 Som. 150 41 P.S. § 406(2) provides that attorneys fees which are reasonable and actually incurred by the residential mortgage lender may be charged to the residential mortgage debtor. Manufacturers and Traders Trust Co. et al. v. Cramer, 60 Som.L.J. 202 (Gibson, J.). MORTGAGES – PRIORITY Priority between two mortgagees remains a race to the recorder’s office. As 21 P.S. § 622 makes clear: all mortgages shall have priority according to the date of recording the same, without regard to the time of making or executing such deeds. U.S. Bank National Association v. Maldet, 63 Som.L.J. 277 (2007) (Klementik) We find that Nationstar’s improper filing is insufficient to establish its right to first priority. U.S. Bank National Association v. Maldet, 63 Som.L.J. 277 (2007) (Klementik) Under Pa.R.Civ.P. 3136, any person who claims an interest in the proceeds of a sheriff’s sale must submit exceptions to the sheriff following the sale. At that time, the court may consider whether that person also has a right to the proceeds of the sale. U.S. Bank National Association v. Maldet, 63 Som.L.J. 277 (2007) (Klementik) Foreclosure action is an in rem—or more accurately, “de terris”—proceeding. Accordingly both mortgagees may still proceed against the defendant in personam based on her personal liability on their respective notes. U.S. Bank National Association v. Maldet, 63 Som.L.J. 277 (2007) (Klementik) OIL AND GAS LAW – MINERAL RIGHTS The word “surface” when used in law, is seldom, if ever, limited to mere geometrical superficies. Bowers v. Uphouse et al., 65 Som.L.J. 238 (2013) (J. Klementik). Under the “Dunham Rule” a rebuttable presumption exists that the word “mineral” when used in a deed reservation or exception, does not include oil or natural gas. Bowers v. Uphouse et al., 65 Som.L.J. 238 (2013) (J. Klementik). The “Dunham Rule” continues to be the law of Pennsylvania, and the party advocating for the inclusion of natural gas within the deed reservation bears the burden of pleading and proving by clear and convincing evidence that the intent of the parties who executed the reservation was to include natural gas. Bowers v. Uphouse et al., 65 Som.L.J. 238 (2013) (J. Klementik). When a deed conveys the surface to one party, and the coal underlying the surface to another party, the surface is meant to include all the earth, soil, or land that lies above and is superincumbent upon the coal. Bowers v. Uphouse et al., 65 Som.L.J. 238 (2013) (J. Klementik). If a grantor intends to reserve the rights to oil and natural gas, they are required to specifically identify and list these minerals in the reservation. Bowers v. Uphouse et al., 65 Som.L.J. 238 (2013) (J. Klementik). Such gas as is present in coal must necessarily belong to owner of the coal, so long as it remains within his property and subject to his exclusive dominion and control. Bowers v. Uphouse et al., 65 Som.L.J. 238 (2013) (J. Klementik). PERSONAL PROPERTY Historically, the Sheriffs Interpleader proceeding has been limited to a determination of whether the petitioners property claim was colorable or not frivolous. Petropulos v. Karsnak and Surftex, 58 Som.L.J. 325 (2000) (J. Cascio). Rule 3213 changed the Sheriffs Interpleader procedure to allow for a complete determination of the ownership of contested property. Petropulos v. Karsnak and Surftex, 58 Som.L.J. 325 (2000) (J. Cascio). The burden of proving ownership of the property in dispute rests with the claimant. The claimant must prove his claim by clear and convincing evidence. Petropulos v. Karsnak and Surftex, 58 Som.L.J. 325 (2000) (J. Cascio). PRIVATE ROAD ACT The Private Road Act, 36 P.S. § 1761 et seq., “creates a statutorily granted privilege allowing a private citizen to condemn the land of a neighbor to permit access from a landlocked parcel to a public road.” In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). Under the Act, “[the] neighbor is entitled to fair and just compensation for the land taken[,]” which is established upon the presentation of “adequate evidence of the fair market value of that land to determine the exact amount of damages due his neighbor.” In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). The damages sustained by the owners of the land through which any private road may pass shall be estimated in the manner provided by the Eminent Domain Code as if it were a public road. In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). Just compensation shall consist of the difference between the fair market value of the condmnee’s entire property interest immediately before the condemnation and as unaffected by the condemnation and the fair market value of the property interest remaining immediately after the condemnation and as affected by the condemnation. In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). Fair market value shall be the price that would be agreed to by a willing and informed seller and buyer. In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). A properly appointed board of viewers constitutes an independent tribunal, and while its findings are subject to review, its authority may not be infringed upon by a trial court’s substitution of its judgment for that of the viewers. In reviewing the report of a board of viewers, a trial court may confirm it or reject it and direct a review. [A trial court’s] [a]ppellate review is limited to ascertaining the validity of the [Board’s] jurisdiction, the regularity of the proceedings, questions of law, and whether there has been an abuse of discretion. In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). A road is not “taken, deemed and allowed to be a lawful public road or highway, or private road, as the case may be[,]” until a final order of the court is entered. In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). In addition to being an error of law, it would be patently inequitable to order Respondents accept $5,500.00 in 2010 dollars as just compensation for the condemnation of property no long sitting in 1986. In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). “In laying out a private road under the Act, the location of the road is entirely within the discretion of the board of view[,]” whose decision will not be “disturb[ed] . . . absent a manifest abuse of discretion.” In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). Courts are not to hold that a board of view abused its discretion regarding the placement of a road if it (1) “viewed the properties in question”; (2) “held the appropriate hearings”; and (3) “considered both of the plans presented and made findings supported by competent evidence to justify its choice of plan.” In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). Neither the Board, nor the Court, has any discretion in determining whether a petitioner must erect a fence around the private road. Section 2735 of the Act plainly states “[a]ll private roads shall be opened, fenced and kept in repair by and at the expense of the person or persons respectively at whose request the same were granted and laid out, and be their heris and assigns.” In Re: Petition of J. Stuart Van Nosdeln and Joann Van Nosdeln, 64 Som.L.J. 369 (2010) (Klementik, J.). RECREATION USE OF LAND & WATER ACT The Recreation Use of Land and Water Act, 68 Pa. C.S.A. § 477-1, et seq., provides that a landowner will not be required to keep his premises safe or to warn of dangerous conditions, uses, structures, or activities thereon. Immunity from liability is lost if the landowner charges a fee or if injury results from the landowners willful or malicious failure to warn. Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (1997) (Fike, P.J.) The phrase willful or malicious conduct under the RULWA is the same duty as is owed to gratuitous licensees under the Restatement (Second) of Torts § 342. Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (1997) (Fike, P.J.) Where there are factual disputes regarding visibility, warning and awareness of risks, summary disposition will be denied. Bell v. PBS Coals, Inc., 55 Som. L.J. 7 (1997) (Fike, P.J.) RESTRICTIVE COVENANTS It is well-settled in this Commonwealth that restrictive covenants must be construed in light of their language, their subject matter, the intent or purpose of the parties, and the conditions surrounding their execution. Parol or extrinsic evidence is not admissible to explain the intent of [a clear and incontrovertible restrictive covenant, but] is admissible to prove the intent of the parties when the written instrument is vague and ambiguous. Beamer v. Shockey, 63 Som.L.J. 137 (2005) (Fike, P.J.) Interpreting an ambiguous contractual term [or restrictive covenant] is a matter of fact, while determining whether or not there is in fact an ambiguity in the contract [or covenant] is a matter of law. Beamer v. Shockey, 63 Som.L.J. 137 (2005) (Fike, P.J.) The plaintiffs seek a judicial determination that the term restaurant, as used in the restrictive covenant, encompasses an establishment that not only offers dine-in services, but also, take-out and drive-thru, as well. Because the defendant stands in opposition to such a legal declaration, it is apparent that an actual controversy exists, and that the defendants Preliminary Objections must be overruled. Beamer v. Shockey, 63 Som.L.J. 137 (2005) (Fike, P.J.) In Pennsylvania, “Restrictive covenants [that] restrict the use of property, although not favored by the law, are legally enforceable.” To determine whether one is enforceable, a court is to “ascertain the intentions of the parties by examining the language of the covenant in light of the subject matter thereof, the apparent purpose of the parties and the conditions surrounding execution of the covenant.” J.S. Land Company v. Tamburino, 64 Som.L.J. 402 (2010) (Loughran, S.J.). A particular use of one’s property or the erection of a particular building upon it violates “a restrictive covenant only if it is in clear defiance to the provisions imposed by the covenant.” J.S. Land Company v. Tamburino, 64 Som.L.J. 402 (2010) (Loughran, S.J.). It is well established that “the intent of the parties governs and that such intent must be ascertained from the . . . instrument.” However, “[w]here an ambiguity exists[,] [a court] may consider extrinsic evidence of the parties’ intent.” J.S. Land Company v. Tamburino, 64 Som.L.J. 402 (2010) (Loughran, S.J.). An ambiguity may be either patent or latent. “A patent ambiguity appears on the face of the instrument and arises from the defective, obscure, or insensible language used. Latent ambiguities arise from extraneous or collateral facts [that] render the meaning of a written contract uncertain although the language, on its face, appears clear and unambiguous.” J.S. Land Company v. Tamburino, 64 Som.L.J. 402 (2010) (Loughran, S.J.). “It is only in the case of latent ambiguity that the court is permitted to go outside the writing to make the initial determination of where an ambiguity exists.” J.S. Land Company v. Tamburino, 64 Som.L.J. 402 (2010) (Loughran, S.J.). Thus, the Court must first determine whether an ambiguity exists. If, and only if, one does, it may consider evidence extrinsic to the instruments in which the Covenant appears. J.S. Land Company v. Tamburino, 64 Som.L.J. 402 (2010) (Loughran, S.J.). Restrictions limiting the right of the owner to deal with his land as he may desire fall naturally into two distinct classes, the one consisting of restrictions of the type and number of buildings to be erected thereon, and the other on the subsequent use of such buildings. The restrictions in the former class are concerned with the physical aspect or external appearance of the buildings, those in the latter class with the purposes for which the buildings are used, the nature of their occupancy, and the operations conducted therein as affecting the heath, welfare, and comfort of the neighbors. J.S. Land Company v. Tamburino, 64 Som.L.J. 402 (2010) (Loughran, S.J.). The Court holds that the intention of the Covenant is to prevent the construction of the “prefab home” that is the subject of the contingent land sale agreement. J.S. Land Company v. Tamburino, 64 Som.L.J. 402 (2010) (Loughran, S.J.). The term “modular home,” which is also known as a “prefabricated” or “industrialized” home is unambiguous. It refers to a home that is erected or constructed on a permanent foundation with standardized sections that were fabricated by a manufacturer off-site and transported to a residential lot. It is not a mobile home: a mobile home is a home that has a permanent chassis and may be used as a dwelling with or without a permanent foundation. It is also not a “stick-built” home: a “stick-built” home is a home that is constructed of a permanent foundation with one ordinary building material – not prefabricated, standardized section - at a time. J.S. Land Company v. Tamburino, 64 Som.L.J. 402 (2010) (Loughran, S.J.). SHERIFF’S SALE OF REAL PROPERTY Mere inadequacy of price is not sufficient to set aside an execution sale of real estate; gross inadequacy of price, however, may constitute grounds to set aside a sheriffs sale, if equity compels such a result. Emigrant Savings Bank v. Plaza Nine, Inc., 51 Som. 173 The objecting party has the burden to prove the gross inadequacy by providing accurate appraisals by experts or other competent evidence. Emigrant Savings Bank v. Plaza Nine, Inc., 51 Som. 173 Factors involved in determining value of shopping mall discussed infra. Emigrant Savings Bank v. Plaza Nine, Inc., 51 Som. 173 Where the sale price is not grossly inadequate and where there is insufficient evidence that a resale would bring a higher price and no assurance of additional prospective bidders or of the probability of a higher bid, resale will not be ordered. Emigrant Savings Bank v. Plaza Nine, Inc., 51 Som. 173 Gross inadequacy of price may constitute grounds to set aside a sheriffs sale, if equity compels such a result. Christian Mutual Life Ins. Co. v. Freedom Baptist Church of Somerset, 51 Som. 191 It is the objecting partys burden to prove gross inadequacy of price by providing accurate appraisals by experts or other competent evidence. Christian Mutual Life Ins. Co. v. Freedom Baptist Church of Somerset, 51 Som. 191 Outstanding liens and judgments must be considered in determining adequacy of the sale price at a sheriffs sale. Christian Mutual Life Ins. Co. v. Freedom Baptist Church of Somerset, 51 Som. 191 Petitioner has presented insufficient evidence of the probability of a substantially higher sales price or potential bid being obtained in the sale of real property, where petitioner testifies that he had presented proposals to prospective buyers yet produces no details or witnesses; there exists no evidence of a definite offer to purchase during the last several years in which the property had been placed on the market; and petitioner did not offer to post a bond in order to guarantee a higher bid. Christian Mutual Life Ins. Co. v. Freedom Baptist Church of Somerset, 51 Som. 191 The fact that plaintiff-execution creditors judgment was entered in an amount comparable to appraisals of the value of real property subject to a sheriffs sale, coupled with the lack of evidence that the property could have been sold for price hoped for by petitioner, makes it obvious that petitioners claim of inadequacy of price against creditor-buyer is meritless. Christian Mutual Life Ins. Co. v. Freedom Baptist Church of Somerset, 51 Som. 191 There are certain specific circumstances under which the sheriff or the court may adjourn a sheriffs sale. North American Mortgage Company v. Sabo, 59 Som.L.J. 44 (2001) (J. Cascio). Pa.R.C.P. 3129.2(b) provides that handbills advertising a sheriffs sale shall be posted upon the property at least 30 days before the sale. Christian Mutual Life Ins. Co. v. Freedom Baptist Church of Somerset, 51 Som. 191 The doctrine of marshaling is not applicable, where, in a sheriffs sale, petitioner has not shown the existence of more than one fund or source of satisfaction. Christian Mutual Life Ins. Co. v. Freedom Baptist Church of Somerset, 51 Som. 191 Petitioner fails to show that sheriff erred in selling property as a whole where there is no evidence that property has been subdivided or is comprised of discrete parcels; no evidence was offered to indicate values of proposed separate portions of the property; and there is insufficient evidence that a higher price could be obtained if sold by this method. Christian Mutual Life Ins. Co. v. Freedom Baptist Church of Somerset, 51 Som. 191 The failure of the plaintiff to attend a sheriffs sale on his own writ of execution may not be the basis for overturning the sale even when the resultant sale price is alleged to be grossly inadequate. North American Mortgage Company v. Sabo, 59 Som.L.J. 44 (2001) (J. Cascio). Upon petition of any party in interest before delivery of the sheriffs deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances. North American Mortgage Company v. Sabo, 59 Som.L.J. 44 (2001) (J. Cascio). The burden of proving circumstances warranting the exercise of the courts equitable powers is on the applicant, and the application to set aside a sheriffs sale may be refused because of the insufficiency of proof to support the material allegations of the application which are generally required to be established by clear evidence. North American Mortgage Company v. Sabo, 59 Som.L.J. 44 (2001) (J. Cascio). Gross inadequacy of the sales price may provide justification to set aside a sheriffs sale where equity compels such a result. North American Mortgage Company v. Sabo, 59 Som.L.J. 44 (2001) (J. Cascio). The burden of proving that equity compels such a result requested rests with plaintiff. North American Mortgage Company v. Sabo, 59 Som.L.J. 44 (2001) (J. Cascio). Failure to establish the actual value of the property can result in a finding that equity will not compel the conclusion that a sale should be overturned based upon gross inadequacy of the price. North American Mortgage Company v. Sabo, 59 Som.L.J. 44 (2001) (J. Cascio). Courts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised. North American Mortgage Company v. Sabo, 59 Som.L.J. 44 (2001) (J. Cascio). TAXATION – ASSESSMENT (VALUATION) OF REAL PROPERTY In an assessment appeal, the procedure requires that the taxing authority first present its assessment record into evidence. Such presentation makes out a prima facie case for the validity of the assessment in the sense that it fixes the time when the burden of coming forward with evidence shifts to the taxpayer. Gilmour Properties v. Board of Assessment Appeals, 61 Som.L.J 461, 464 (2005) (Cascio, J.) The taxpayer still carries the burden of persuading the court of the merits of his appeal, but that burden is not increased by the presence of the assessment record in evidence. Gilmour Properties v. Board of Assessment Appeals, 61 Som.L.J. 461, 465 (2005) (Cascio, J.) Consideration of factors based upon pure speculation, such as what the property would be worth in an altered condition are irrelevant to the issue of fair market value. Gilmour Properties v. Board of Assessment Appeals, 61 Som.L.J. 461, 472 (2005) (Cascio, J.) The trial court has the discretion to decide which of the methods of valuation is the most appropriate and applicable to the given property. Gilmour Properties v. Board of Assessment Appeals, 61 Som.L.J. 461, 475 (2005) (Cascio, J.) The Single Assessment Test requires “common ownership;” not merely common control. Shade-Central City School District v. Somerset County Board of Assessment Appeals, et al., 65 Som.L.J. 275 (2014) (Geary, J.) The fundamental nature of the assessment of coal lands is the valuation of the land containing the coal; not the coal itself. “In the assessment of a coal mining operation, the mine as an entity is to be valued and if the total value as fixed by the Board is not incorrect, the taxpayer is not harmed by a failure to assign a proper value to one of the factors affecting its value.” Shade-Central City School District v. Somerset County Board of Assessment Appeals, et al., 65 Som.L.J. 275 (2014) (Geary, J.) Uniformity of taxation is guaranteed by Article VIII, § 1 of the Pennsylvania Constitution. Shade-Central City School District v. Somerset County Board of Assessment Appeals, et al., 65 Som.L.J. 275 (2014) (Geary, J.) A taxing authority that applies differing valuation methodologies to properties in the same class violates the Uniformity Clause. Shade-Central City School District v. Somerset County Board of Assessment Appeals, et al., 65 Som.L.J. 275 (2014) (Geary, J.) “A governmental body must apply the same methodology for valuing real property to all property within its jurisdiction.” Shade-Central City School District v. Somerset County Board of Assessment Appeals, et al., 65 Som.L.J. 275 (2014) (Geary, J.) TAXATION – TAX SALE OF REAL PROPERTY 72 P.S.§5860.607(g) addresses the situation where a tax sale of real estate has been held and no objections were filed or the objections were overruled. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). It is clear that failure to file timely objections to a tax sale, which is what happened in this case, does not prevent a court of equity from addressing the issue of statutory notice requirements at a later time. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). Under §5860.607(g), a property owner is entitled to have the issue of notice prior to the tax sale examined and adjudicated by the Court in an equity action. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). When real property has been sold at a tax sale as a result of delinquent taxes and the tax sale has been challenged, the tax claim bureau has the burden of proving compliance with the statutory requirements of the Pennsylvania Real Estate Tax Sale Law. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). The statutory requirements of the Pennsylvania Real Estate Tax Sale Law are so fundamental that strict adherence to them by the tax claim bureau is required in order to prevent deprivation of property without due process of law. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). With regard to notice of a tax sale to the owner of the property, the Real Estate Tax Sale Law requires that: (1) the tax claim bureau provide published notice of a tax sale in two newspapers of general circulation in the county and in the legal journal, at least thirty days prior to the tax sale; (2) the tax claim bureau provide notice by certified mail, restricted delivery, return receipt requested, at least thirty days prior to the tax sale, and (3) the tax claim bureau must post a notice of the tax sale on the property which is subject to the tax sale, at least ten days prior to the tax sale. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). Compliance with all three notice requirements is necessary in order for the sale of real estate at a tax sale to be valid. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). If proper notice by certified mail, restricted delivery, is not successful, then the alternate procedure set forth in 72 P.S. §5860(e)(2) must be followed. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). The fact that the property owner failed to receive actual notice of the tax sale is not determinative of the issue before the Court because actual notice is not required in order for a tax sale to be valid. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). Although actual notice need not be achieved, a tax claim bureau must make a reasonable effort to provide actual notice of a tax sale to the owner of record of the property to be sold, in order to comply with due process requirements. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). Due process does not require the tax claim bureau to perform the equivalent of a title search, but the tax claim bureau is required to conduct a reasonable investigation to ascertain the identity and address of the latest owners of record of a property which is to be sold at tax sale. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). Notice provisions of the Real Estate Tax Sale Law are to be strictly construed, and there must be strict compliance with such provisions to guard against deprivation of property without due process of law. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). Grove v. Franklin County Tax Claim Bureau, 705 A.2d. 162 (Pa. Cmwlth.1997), establishes that even if the certified mail notice is sent to the correct address, the notice will not be adequate unless a proper signature is obtained on the return receipt card. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). Where a separate certified mail notice of tax sale was sent to the husband and to the wife who were the joint owners of entireties property, but the return receipt card addressed to the husband was signed by the wife, this notice to the husband was not proper or sufficient, and the additional notice requirements contained in 72 P.S. §5860.607a and §5860.602 must be followed or the notice will be invalid. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). Where the tax claim bureau does not comply with all statutory notice requirements, the tax sale is valid only if the property owner had actual notice of the tax sale. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). Actual notice encompasses both express actual notice and implied actual notice. Matesic v. County of Somerset, et al., 59 Som.L.J. 383 (2002) (Gibson, J.). The Tax Claim Bureau is required to conduct a reasonable investigation to ascertain the identity and whereabouts of the latest owner of a property subject to an upset sale for the purpose of providing notice to that party. 72 P.S. § 5860.607a(a). In Re: Tax Sale of Real Property Situated in Jefferson Twp., Ruffner v. Beeghly, 61 Som.L.J. 249 (2004) (Cascio, J.) Where the record reflects that the notices were sent to an incorrect address and the address information necessary to provide proper notice was available in the Countys records, even full compliance with the minimum provisions of § 5860.607a(a) will be deemed insufficient. The Bureaus obligation to search will be determined by what is found to have been available to provide a proper address and review of this issue in every case is very fact specific. In Re: Tax Sale of Real Property Situated in Jefferson Twp., Ruffner v. Beeghly, 61 Som.L.J. 252 (2004) (Cascio, J.) The Tax Claim Bureau did not fail to exercise reasonable efforts to discover the whereabouts of the property owner who chose not to go to the post office to claim the notice of the tax sale sent to her by certified mail, return receipt requested, even though the Bureau did not check records outside of Somerset County for the owners address, where the Bureau checked the assessment records and determined that notice had been sent to the owners correct address, and first class notice forwarded to her at that mailing address was not returned to the Bureau. 72 P.S. § 5860.607a(a). In Re: Tax Sale of Real Property Situated in Jefferson Twp., Ruffner v. Beeghly, 61 Som.L.J. 252 (2004) (Cascio, J.) The Tax Sale Laws procedures for selling a property at either an upset sale or a judicial sale are detailed and precise. At an upset sale, all recorded obligations not included in the upset price survive the sale, but at a judicial sale no liens or claims survive the sale. In Re: Proposed Distribution of Proceeds of Judicial Tax Sale, 62 Som. L.J. 24, 27 (2005) (Cascio, J.). The provisions in the Tax Sale Law relating to judicial sale do not categorize the taxes extinguished by the tax sale, whether delinquent or current. In Re: Proposed Distribution of Proceeds of Judicial Tax Sale, 62 Som. L.J. 24, 27 (2005) (Cascio, J.). The law is well settled in Pennsylvania that a valid tax sale requires strict compliance with all three of the notice provisions of Section 602 of the Law, 72 P.S. § 5860.602: publication, certified mail, and posting. In Re Somerset County Tax Sale of Real Estate Assessed in the Name Norman D. Wildenmann & Mary L. Wildenmann, Assessed and Identified as Control No. 42-14910, 64 Som.L.J. 97 (2009) (Klementik, J.) If any of the notices are defective, the sale is void. In Re Somerset County Tax Sale of Real Estate Assessed in the Name Norman D. Wildenmann & Mary L. Wildenmann, Assessed and Identified as Control No. 42-14910, 64 Som.L.J. 97 (2009) (Klementik, J.) Section 607a requires . . . that when actual notice is not assured based on the certified mailing receipt, the TCB must use and document “reasonable efforts” to notify the owner. 72 P.S. § 5860.607a. In Re Somerset County Tax Sale of Real Estate Assessed in the Name Norman D. Wildenmann & Mary L. Wildenmann, Assessed and Identified as Control No. 42-14910, 64 Som.L.J. 97 (2009) (Klementik, J.) The Act directs, as a minimum, a search of current telephone directories for the county, the dockets and indices of the county tax assessment offices, recorder of deeds office, prothonotary’s office. 72 P.S. § 5860.607a. In Re Somerset County Tax Sale of Real Estate Assessed in the Name Norman D. Wildenmann & Mary L. Wildenmann, Assessed and Identified as Control No. 42-14910, 64 Som.L.J. 97 (2009) (Klementik, J.) When such reasonable efforts are exhausted, regardless of whether or not the notification efforts have been successful, a notation is to be placed in the property file describing the efforts made and the results thereof. 72 P.S. § 5860.607a. In Re Somerset County Tax Sale of Real Estate Assessed in the Name Norman D. Wildenmann & Mary L. Wildenmann, Assessed and Identified as Control No. 42-14910, 64 Som.L.J. 97 (2009) (Klementik, J.) Notice of the judicial sale must similarly be given to each owner to satisfy due process requirements. In Re Somerset County Tax Sale of Real Estate Assessed in the Name Norman D. Wildenmann & Mary L. Wildenmann, Assessed and Identified as Control No. 42-14910, 64 Som.L.J. 97 (2009) (Klementik, J.) ZONING – ZONING APPEALS – TIMELY FILING OF ZONING APPEALS The procedures in the Pennsylvania Municipalities Planning Code (MPC) are the exclusive methods for securing review of a zoning decision. 65 Som. L.J. 29 (2010) (Klementik, J.) All appeals from all land use decisions ... shall be taken to the court of common pleas of the judicial district wherein the land is located and shall be filed within 30 days after entry of the decision as provided in 42 Pa. C.S. § 5572 (relating to time of entry of order) or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given. 65 Som. L.J. 29 (2010) (Klementik, J.) The date of service of an order of a government unit, which shall be the date of mailing if service is by mail, shall be deemed to be the date of entry of the order for the purposes of this subchapter. The date of entry of an order of a court or magisterial district judge may be specified by general rules. 65 Som. L.J. 29 (2010) (Klementik, J.) Under 42 Pa. C.S. § 5572, the date of “entry of the decision” is “[t]he date of service of an order of a government unit, which shall be the date of mailing if service is by mail.” 65 Som. L.J. 29 (2010) (Klementik, J.) The decision of the governing body or the planning agency shall be in writing and shall be communicated to the applicant personally or mailed to him at his last known address not later than 15 days following the decision. 65 Som. L.J. 29 (2010) (Klementik, J.) MPC § 1002-A, triggers the running of the appeal period not upon the occurrence of the decision, but upon “entry of that decision.” 65 Som. L.J. 29 (2010) (Klementik, J.) By its terms, then, § 508 requires reduction of the Boards disposition to a writing that is mailed, handed, emailed, faxed, or otherwise transmitted in written form to the applicant. Hence, the Boards oral [decision]…did not constitute “ entry” of that decision. Only the mailing of the writing to the applicant…after the decision was announced constituted entry of that decision. 65 Som. L.J. 29 (2010) (Klementik, J.) The timeliness of an appeal relates to the jurisdiction of a court and its competency to act. 65 Som. L.J. 29 (2010) (Klementik, J.) The thirty-day period during which appeals to land-use decisions may be filed begins to run at the time of the entry of the decision. The entry of the decision occurs when the Board’s written opinion is finalized and mailed to the parties. 65 Som. L.J. 29 (2010) (Klementik, J.) ZONING – PERMITS Five factors must be considered if a vested right has been acquired in an erroneously issued permit. Those factors are, (1) the property owners due diligence in attempting to comply with the law, (2) the property owners good faith throughout the proceedings, (3) the expenditure of the property owner of substantial unrecoverable funds, (4) the expiration without appeal , of the period during which an appeal could have been taken from the issuance of the subject permit, and (5) the insufficiency of the evidence to prove that individual property rights of the public health, safety or welfare would be adversely affected by the use of the permit. Borough of Windber v. Zoning Hearing Board of the Borough of Windber, et al., and Jerley v. Zoning Hearing Board of the Borough of Windber, 58 Som.L.J. 246 (1997) (P.J. Fike). The property owner who seeks to acquire a vested right in the erroneously issued permit has the burden of proof. With regard to the fifth factor, however, the burden is on those who oppose acquisition of vested rights. Borough of Windber v. Zoning Hearing Board of the Borough of Windber, et al., and Jerley v. Zoning Hearing Board of the Borough of Windber, 58 Som.L.J. 246 (1997) (P.J. Fike). Landowners are entitled to rely on information obtained from those municipal officials who are responsible for zoning. Borough of Windber v. Zoning Hearing Board of the Borough of Windber, et al., and Jerley v. Zoning Hearing Board of the Borough of Windber, 58 Som.L.J. 246 (1997) (P.J. Fike). Initiation of construction prior to the issuance of a permit does not automatically translate into a finding of lack of diligence or bad faith where plans and an application for a permit have been submitted, the party has been advised that all appeared to be satisfactory, the early initiation does not relate to the violation which occurred, and a permit is issued. Borough of Windber v. Zoning Hearing Board of the Borough of Windber, et al., and Jerley v. Zoning Hearing Board of the Borough of Windber, 58 Som.L.J. 246 (1997) (P.J. Fike). Where a party is let to believe that their project is in compliance with Borough standards, both before and after permit issuance, attempts to comply with requests for additional information, and is given no reason to suspect that there is any violation, that party is entitled to rely on the permit which is issued and which confirms prior discussions with Borough authorities. Borough of Windber v. Zoning Hearing Board of the Borough of Windber, et al., and Jerley v. Zoning Hearing Board of the Borough of Windber, 58 Som.L.J. 246 (1997) (P.J. Fike). Where a party does not attempt to hide construction efforts, attempts to ameliorate neighbors concerns about the construction, does not misrepresent any of its activities, and is not informed of any other complaints until litigation appears imminent, the partys actions in proceeding with construction without additional personal contact with the neighbor may be a breach of etiquette, but will not rise to the level of bad faith. Borough of Windber v. Zoning Hearing Board of the Borough of Windber, et al., and Jerley v. Zoning Hearing Board of the Borough of Windber, 58 Som.L.J. 246 (1997) (P.J. Fike). Concerns regarding deposits of mud, obstruction of view, increase in traffic, loss of privacy and increase in slope between the subject property and adjoining land, without evidence of specific adverse effects, is insufficient to prove that individual property rights or the public health, safety or welfare would be adversely affected if the erroneously issued permit is used. Borough of Windber v. Zoning Hearing Board of the Borough of Windber, et al., and Jerley v. Zoning Hearing Board of the Borough of Windber, 58 Som.L.J. 246 (1997) (P.J. Fike). ZONING – VARIANCE Every municipality of the Commonwealth is granted the authority under the States police powers to specifically enact zoning related to airport hazard areas. Stonycreek Windpower, LLC v. Somerset County Board of Adjustment, County of Somerset, 61 Som.L.J. 420 (2004)(Fike, II, P.J.) The Airport Zoning Act and the Ordinance clearly provide that a variance may only be granted where, in addition to receiving an FAA no hazard determination, an applicant also demonstrates that a literal application of the Ordinance will result in practical difficulty or unnecessary hardship to the applicant, and that the relief granted will not be contrary to the public interest, but will do substantial justice in accordance with the spirit of the regulations. Stonycreek Windpower, LLC v. Somerset County Board of Adjustment, County of Somerset, 61 Som.L.J. 420 (2004)(Fike, II, P.J.) Neither a purely economic hardship nor a self-inflicted economic hardship are grounds for a variance; therefore, a non-landowning developer who is aware of the Ordinance and who will face purely economic hardship upon purposely subjecting itself to the Ordinance is not entitled to a variance. Stonycreek Windpower, LLC v. Somerset County Board of Adjustment, County of Somerset, 61 Som.L.J. 420 (2004)(Fike, II, P.J.) A non-landowning developer is not entitled to a variance merely because it expends time and money investigating whether it can develop windmills upon land restricted by an Ordinance or, alternatively, upon some other appropriate site. Stonycreek Windpower, LLC v. Somerset County Board of Adjustment, County of Somerset, 61 Som.L.J. 420 (2004)(Fike, II, P.J.) co.somerset.pa.us/courts/legaljournal/property_law.htm
Posted on: Wed, 14 Jan 2015 21:57:57 +0000
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