Roman Catholic Diocese Allentown v. City of Bethlehem, 1800 C.D. 2014

Roman Catholic Diocese of Allentown, Appellant v. City of Bethlehem

No. 1800 C.D. 2014

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: March 27, 2015

July 10, 2015

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON

In this procedurally quirky appeal, the Roman Catholic Diocese of Allentown (RCDA) asks whether the Court of Common Pleas of Northampton County (trial court) erred in dismissing its appeal from a decision of the City Council of the City of Bethlehem (City Council). The decision of City Council denied RCDA's application for a permit to demolish a home and barn it owns in the City's historic district.

The trial court previously denied RCDA's appeal. According to the trial court, rather than appealing the previous denial, RCDA returned several months later seeking to re-litigate the same issues already decided by the trial court, which was procedurally improper. RCDA contends the trial court's initial order was interlocutory and unappealable; thus, a remand is warranted for a determination on the merits of its local agency appeal. Upon review, we affirm.

In November 2012, RCDA filed an application for a certificate of appropriateness¹ (certificate) with the City, seeking a permit to demolish a single-family home and barn that RCDA owns at 1304 Spring Street, which is located in the City's Mount Airy Historic Conservation District. At a January 2013 meeting, the City's Historic Conservation Commission (Historic Commission) recommended that City Council deny RCDA's application.

A few weeks later, City Council held a meeting at which it voted to approve the Historic Commission's recommendation to deny RCDA's application. Shortly thereafter, RCDA filed a document styled "COMPLAINT (Appeal from Adjudication of Local Government Agency Pursuant to 2 Pa. C.S.A. §§751-754)" with the trial court. Reproduced Record (R.R.) at 11a. The City filed an answer.

Thereafter, RCDA filed a "MOTION FOR SUMMARY JUDGMENT OF PLAINTIFF/APPELLANT PURSUANT TO Pa.R.Civ.P. No. 1035" and a supporting brief. R.R. at 231a. In its motion, RCDA stated, "[t]his is an appeal by [RCDA] from an adjudication of a local government agency pursuant to 2 Pa. [C.S.] §§751-754." R.R. at 231a. RCDA sought reversal of the decisions of the Historic Commission and City Council on the grounds that these local bodies: (1) abused their discretion in refusing RCDA's application for the certificate to demolish the home and barn; (2) engaged in a capricious disregard of the evidence; (3) abused their power in denying the requested demolition; and, (4) did not rendera timely decision on RCDA's application for the certificate. RCDA requested that the trial court reverse City Council's decision and direct that a certificate be issued authorizing the issuance of a permit for the demolition of 1304 Spring Street. The City filed a brief in opposition to RCDA's motion.

The City and RCDA also filed a stipulation setting forth the procedural background that led to RCDA's appeal to the trial court. The trial court did not receive any additional evidence.

Ultimately, in January 2014, the trial court issued an order, which stated:

[U]pon consideration of the Motion for Summary Judgment filed by Plaintiff, [RCDA], it is hereby ORDERED and DECREED as follows:

1. [RCDA's] Motion for Summary Judgment is DENIED.

2. [City Council's] decision cannot be considered an abuse of discretion where [City Council] properly considered all factors set forth in City of Bethlehem Ordinances 1714.07(a) and 1714.09(a), and in light of the purpose of the ordinance, set forth at Section 1714.03.

3. [City Council] did not render its decision outside of the legal timeframe set forth at Ordinance 1714.11.D where [RCDA] consented to the continuation of the discussion of the demolition application from the December 17, 2013 meeting of the [Historic Commission] to the January 28, 2013 meeting, where the [Historic] Commission rendered its decision.

R.R. at 253a. No request for reconsideration was filed, and no appeal was taken from this order.

More than five months later, after a status conference before a different trial judge, the matter was listed on the trial court's September 2014 argument list. RCDA, through new counsel, subsequently filed a praecipe for argument. Thereafter, the parties filed briefs. RCDA's brief was identical to the brief it filed in support of its motion for summary judgment.

Ultimately, the case was assigned to the same trial judge who issued the January 2014 order. Shortly thereafter, the trial judge issued the following order:

[U]pon consideration of the Appeal from a Decision of a Local Government Agency, filed by Plaintiff, [RCDA], it is hereby ORDERED and DECREED as follows:

1. [RCDA's] Appeal is DENIED and DISMISSED.

2. This matter was decided by final Order dated January 17, 2014.

3. [RCDA] neither sought reconsideration nor filed an appeal from the January 17, 2014 Order.

4. [RCDA] is attempting to re-litigate the same issues previously addressed by this Court. This Court has already ruled, after review of the same record currently before the Court, that the [City] did not abuse its discretion in denying the demolition permit, and that the City's decision was not untimely.

R.R. at 256a. RCDA then filed a motion for reconsideration.

Shortly thereafter, the trial court heard oral argument. At that time, the trial court questioned why the matter was again listed for argument inSeptember 2014 when the trial court disposed of it in January 2014. The trial court indicated that RCDA's brief raised the exact same issues previously decided. In response, RCDA's counsel asserted the January 2014 order, which denied RCDA's motion for summary judgment, was not a final order; therefore, it was unappealable. RCDA's counsel explained it was now seeking to obtain a final, appealable order.

The trial court subsequently denied reconsideration, stating that this matter, which sought review of City Council's denial of RCDA's application for a certificate to demolish the home and barn, was decided by the trial court in January 2014. The trial court also stated that if RCDA had new facts to present it could attempt to reapply for a certificate from City Council.

RCDA filed a timely notice of appeal to this Court, and the trial court directed it to file a Concise Statement of Errors Complained of on Appeal, which it did. In a subsequently filed opinion, the trial court explained:

[T]he issue raised by [RCDA] is procedural in nature. [RCDA] requested permission from the [City] to demolish a residential property located in the historic district. The City denied the application. [RCDA] appealed to the [trial court], filing [its] Complaint in March 2013. Thereafter, [RCDA] took no action on the case until a [m]otion for [s]ummary [j]udgment was filed in December 2013 and placed on the December 5, 2013 Argument List. The matter was assigned to the Honorable F.P. Kimberly McFadden, and on January 17, 2014, an Order was issued denying summary judgment and finding that the City's decision was not an abuse of discretion and was not untimely. Although termed as a 'Motion for Summary Judgment' by [RCDA], the issues presented to the Court were whether the [RCDA] was entitled to a demolition permit because the City's decision was an abuse of discretion and/orbecause the City's decision was untimely. Thus, the [m]otion as presented to the Court, and this Court's resulting Order, was dispositive of all of the issues in the case.

[RCDA] took no further action on the case until it was listed on the September 2, 2014 Argument List.^FN2 At that time, [RCDA] [was] attempting to obtain a different decision, on the same record that had been submitted in December 2013, and on the same issues, i.e. whether the City's decision was an abuse of discretion and/or untimely. Thus, the Court entered the September 3, 2014 Order finding that the issues had been addressed in the January 17, 2014 Order of Court. Thereafter, [RCDA] filed a Motion for Reconsideration, which was denied by Order of Court dated September 30, 2014.

^FN2 Counsel also acted improperly in failing to advise the assigning judge that the undersigned had previous involvement with this case. The case was re-assigned to Judge McFadden by chance.

Tr. Ct., Slip Op., 11/14/14, at 1-2. RCDA's appeal is now before us for disposition.

On appeal,² RCDA asserts it initially appealed a local agency decision to the trial court. It then filed a motion for summary judgment, which the trial court denied. RCDA contends it subsequently sought a final decision from which an appeal could be taken. The trial court held that its prior order denying summary judgment was a final appealable order from which no appeal was taken, and itrefused to issue a final decision on the merits. RCDA maintains that an order denying summary judgment is not a final, appealable order.

To that end, RCDA argues the Pennsylvania Rules of Civil Procedure that govern motions for summary judgment expressly limit a court's power to grant summary judgment to those situations where a moving party is entitled to judgment as a matter of law. RCDA asserts Pennsylvania courts do not authorize the entry of summary judgment in favor of a non-moving party. And, no such effect can be given to a court's denial of a moving party's motion for summary judgment. See Sidkoff, Pincus, Greenberg & Green, P.C. v. Pa. Nat'l Mut. Cas. Ins. Co., 555 A.2d 1284 (Pa. 1989). Thus, an appeal does not lie from the denial of a moving party's motion for summary judgment. Id. Rather, such a denial is interlocutory as the party "remains in court." Br. for Appellant at 8.

Here, RCDA contends, the trial court's January 2014 order denied RCDA's motion for summary judgment. This ruling was interlocutory. Sidkoff. Because it does not constitute a final order, RCDA could not appeal it. Further, because it was an...