Opinion
No. 1169 C.D. 2014
04-10-2015
Borough of St. Clair and James Larish, Michael Petrozino, Tom Brennan, John Burke, Valeria Davis, William Dempsey and John Houseknecht, individually and as members of the Borough of St. Clair Council, Appellants v. Blythe Township and FKV, LLC
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
The Borough of St. Clair and the members of its Borough Council (collectively, Borough) appeal the order of the Schuylkill County Court of Common Pleas (trial court) sustaining the preliminary objections of Blythe Township (Township) and FKV, LLC (FKV) and dismissing the Borough's Fifth Amended Complaint for Declaratory Judgment (Complaint) on the basis that the Borough lacks standing to assert Count I of the Complaint and that Counts II and III fail to state a ripe case or controversy. We affirm.
James Larish, Michael Petrozino, Tom Brennan, John Burke, Valeria Davis, William Dempsey and John Houseknecht appeared both individually and as members of the Borough Council.
Section 7533 of the Declaratory Judgments Act, 42 Pa. C.S. §7533, states, in relevant part, that "[a]ny person interested under a ... written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a ... contract, ... may have determined any question of construction or validity arising under the ... contract, ... and obtain a declaration of rights, status, or other legal relations thereunder."
In 2003 and 2007, the Township executed three agreements with FKV, a private entity, for the development and operation of a construction/demolition waste landfill in the Township. In 2004, they filed an application with the Department of Environmental Protection (DEP) for a solid waste permit to operate the landfill. While DEP initially denied a permit, one was later granted to the Township in July 2012. The Borough appealed the grant to the Environmental Hearing Board (EHB) and the matter was ultimately remanded to DEP for reevaluation of its environmental assessment that the plan complies with DEP's regulations. This Court quashed a Borough appeal of the permit grant due to EHB's remand and because the appeal was from a non-final, interlocutory order. See Borough of St. Clair v. Department of Environmental Protection (Pa. Cmwlth., No. 532 C.D. 2014, filed April 16, 2014).
Section 271.127 of DEP's regulations sets forth the required "harms/benefits" test:
(a) Impacts. Each environmental assessment in a permit application shall include at a minimum a detailed analysis of the potential impact of the proposed facility on the environment, public health and public safety, including traffic, aesthetics, air quality, water quality, stream flow, fish and wildlife, plants, aquatic habitat, threatened or endangered species, water uses, land use and municipal waste plans....25 Pa. Code §271.127.
(b) Harms. The environmental assessment shall describe the known and potential environmental harms of the proposed project. The applicant shall provide [DEP] with a written mitigation plan which explains how the applicant plans to mitigate each known or potential environmental harm identified and which describes any known and potential environmental harms not mitigated. [DEP] will review the assessment and mitigation plans to determine whether there are additional harms and whether all known and potential environmental harms will be mitigated....
(c) [C]onstruction/demolition waste landfills.... If the application is for the proposed operation of a ... construction/demolition waste landfill ... the applicant shall demonstrate that the benefits of the project to the public clearly outweigh the known and potential environmental harms. In making this demonstration, the applicant shall consider harms and mitigation measures ... in subsection (b). The applicant shall describe in detail the benefits relied upon. The benefits of the project shall consist of social and economic benefits that remain after taking into consideration the known and potential social and economic harms of the project and shall also consist of the environmental benefits of the project, if any....
In 2013, the Township and FKV filed a 42 U.S.C. §1983 civil rights action in federal court alleging that the Borough's council members violated their due process rights and deprived them of their property right in the permit and operation of the landfill, and that the Borough tortiously interfered with their contract rights causing DEP to reverse its initial permit approval. Ultimately, the action was dismissed because the court determined that the Section 1983 claim was not ripe for disposition and it refused to exercise pendent jurisdiction over the state law tortious interference claim. See Blythe Township v. James Larish, et al., No. 3:13cv237 (M.D. Pa. Nov. 25, 2013), aff'd, 573 Fed. Appx. 112 (3rd Cir. 2014).
In 2013, the Borough also filed the instant action in the trial court, culminating in the Complaint, seeking a declaration that the agreements are invalid and an injunction preventing their execution. (Reproduced Record (RR) at 14a-38a). In Count I of the Complaint, the Borough asked the court to declare that the agreements between the Township and FKV are void and unenforceable because the Township unconstitutionally delegated its municipal functions to FKV; the Township unlawfully attempted to bind future Boards of Supervisors by agreeing to future zoning amendments; and the Township never obtained an appraisal for the land that was transferred to it from the Township Water Authority for later transfer to FKV for use as a landfill as required by Section 1503(e) of the Second Class Township Code. (Id. at 35a).
The "special or peculiar" injuries that the Borough alleged it would suffer were: dust, odors and potential leachate contamination; burden on its police, fire and ambulance services; alteration of the natural landscape; decrease in property values; adverse aesthetic impact on its properties; and increased traffic and violation of weight restrictions on its streets. (RR at 30a-32a).
Act of May 1, 1933, P.L. 103, as reenacted and amended, 53 P.S. §66503(e). Section 1503(e) states, in relevant part, that "[n]o real estate may be purchased by a township unless the board of supervisors obtains at least one appraisal on the real property in question by a person authorized to perform an appraisal on the subject property.... The price paid by the board ... for the purchase of the real estate shall not exceed the price established by the appraisal....".
In Count II, the Borough asked the trial court to declare that its actions in opposing the development and in appealing DEP's grant of the permit to EHB do not rise to the level of tortious interference with contract as alleged in the Township's and FKV's federal action. (RR at 36a). Finally, in Count III, the Borough asked the trial court to declare that the federal lawsuit alleging tortious interference is a "SLAPP" lawsuit prohibited by Pennsylvania law; to declare that it is immune from liability in that action under Section 8302(a) of the Environmental Immunity Act, 27 Pa. C.S. §8302(a); and to award counsel fees incurred in the federal lawsuit. (Id. at 37a-38a).
The preamble to what is commonly referred to as the Environmental Immunity Act, Preamble to the Act of December 20, 2000, P.L. 980, declared that it is contrary to the public interest to allow "Strategic Lawsuits Against Public Participation (SLAPP)" to be filed to chill the valid exercise of a citizen's free speech rights and rights to petition the government and to empower a citizen to bring a swift end to retaliatory lawsuits thereby undermining a citizen's participation in the implementation and enforcement of environmental laws and regulations.
Section 8302(a) states, in relevant part, that "a person ... that makes an oral or written communication to a governmental agency relating to enforcement or implementation of an environmental law or regulation shall be immune from civil liability in any resulting legal proceeding for damages where the action or communication is aimed at procuring favorable governmental action." See also Section 8303, 27 Pa. C.S. §8303 ("A person who wishes to raise the defense of immunity from civil liability under this chapter may file a motion with the court requesting the court to conduct a hearing to determine the preliminary issue of immunity. If a motion is filed, the court shall then conduct a hearing and if the motion is denied, the moving party shall have an interlocutory appeal as of right to the Commonwealth Court....").
While the matter was pending, the Borough entered into leases with landowners in the Township near the proposed landfill under which the Borough obtained a fractional interest, paying $1.00 each per year and promising to reimburse the landowners for its respective share of the real estate taxes.
The Township and FKV filed preliminary objections to the Borough's complaint alleging, inter alia, that: (1) the Borough did not have standing to maintain Count I because it was not an interested party to the contracts and it is not a Township taxpayer; and (2) Counts II and III were not ripe for disposition because the administrative and federal actions on which they are based have not concluded. (Supplemental Reproduced Record (SRR) at 24b-31b).
Following a hearing, the trial court agreed, sustaining these preliminary objections and dismissing the Borough's complaint. Regarding the Borough's standing to file the instant declaratory judgment action, the trial court noted that the Borough is not a party to any contract at issue; is not a third party beneficiary of any contract; no duties are imposed upon the Borough under the contracts; the Borough did not claim to have taxpayer standing to attack the Township's purported improper exercise of governmental powers; and the Borough has not initiated an action under the zoning/subdivision/land use ordinances if it was the proper party to assert a violation. (Trial Court 8/1/13 Opinion at 13). The trial court also explained that while the Borough entered into the leases to "monitor" the landfill and to have notice of the DEP permit process to appeal therefrom, the leasehold interests do not transform the Borough into a party with standing to contest the contract terms. (Trial Court 6/27/14 Opinion at 2).
Regarding the ripeness of the Borough's claims, the trial court explained that the dismissal in federal court is on appeal and if reinstated, that court system may examine the questions posed in Counts II and III. (Trial Court 6/27/14 Opinion at 3). The trial court stated that if not, any case or controversy relative to the federal action may be terminated and all of the related issues may never be litigated. (Id.). The trial court concluded that, "[i]n any event, [the Borough] allege[s] no grounds for this Court to provide what appears to be advisory opinions on past or potentially future actions that have been or may be taken by [it] relative to opposing [the Township's and FKV's] efforts to install a landfill in [the] Township." (Id.).
As indicated above, the Third Circuit Court of Appeals affirmed the District Court's sua sponte dismissal of the action as unripe. See Blythe Township v. Larish, 573 Fed. Appx. 112 (3rd Cir. 2014).
On appeal, the Borough first claims that the trial court erred in determining that it does not have standing as a political subdivision to contest the validity of the contracts in Count I of the Complaint because it has an actual, direct and immediate interest in the contracts and the development and operation of the landfill as a taxpayer and under Robinson Township, et al. v. Commonwealth, et al., 83 A.3d 901 (Pa. 2013) and, if not, it qualifies under the standing exceptions outlined in In re Application of Biester, 409 A.2d 848 (Pa. 1979).
Our review of the trial court's order sustaining the preliminary objections and dismissing the Borough's complaint is limited to determining whether the trial court abused its discretion or committed an error of law. Szoko v. Township of Wilkins, 974 A.2d 1216, 1219 n.7 (Pa. Cmwlth. 2009). In reviewing preliminary objections, all well pleaded relevant and material facts are to be considered as true and preliminary objections shall only be sustained when they are free and clear from doubt. Id. Such review raises a question of law as to which our standard of review is de novo and our scope of review is plenary. Id.
In Robinson Township, the Pennsylvania Supreme Court held, inter alia, that municipalities had standing to challenge the provisions of Act No. 13 of February 14, 2012, P.L. 87, 58 Pa. C.S. §§2301-3504, which "comprise[d] sweeping legislation affecting Pennsylvania's environment and, in particular, the exploitation and recovery of natural gas in a geological formation known as the Marcellus Shale" thereby implicating the Environmental Rights Amendment to the Pennsylvania Constitution, Pa. Const. art. I, §27. Id. at 913. The Supreme Court explained:
[A] political subdivision has a substantial, direct, and immediate interest in protecting the environment and the quality of life within its borders, which interest confers upon the political subdivision standing in a legal action to enforce environmental standards. Political subdivisions, the Court has recognized, are legal persons, which have the right and indeed the duty to seek judicial relief, and, more importantly, they are "place[s] populated by people." The protection of environmental and esthetic interests is an essential aspect of Pennsylvanians' quality of life and a key part of local government's role. Local government, therefore, has a substantial and direct interest in the outcome of litigation premised upon changes, or serious and imminent risk of changes, which would alter the physical nature of the political subdivision and of various components of the environment. Moreover, the same interest in the environment and in the citizenry's quality of life cannot be characterized as remote: "[w]e need not wait until an ecological emergency arises in order to find that the interest of the municipality and county faced with such disaster is immediate."
In Biester, the Supreme Court held that a citizen taxpayer who is not aggrieved in the classic sense has standing to bring a suit based on his taxpayer status if the following conditions are present: (1) the governmental action would otherwise go unchallenged; (2) those directly and immediately affected by the complained of matter are beneficially affected and not inclined to challenge the action; (3) judicial relief is appropriate; (4) redress through other channels is unavailable; and (5) no other persons are better situated to assert the claim. Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 662 (Pa. 2005) (citation omitted).
The Borough does not have standing in this case because, while it alleges that the agreements between the Township and FKV are invalid, there is no uncertainty with respect to the Borough's rights, status or legal relations thereunder to support a claim under Section 7533 of the Declaratory Judgments Act. "Members of the public are merely incidental beneficiaries of a government contract and have no actionable rights thereunder." Boady v. Philadelphia Municipal Authority, 699 A.2d 1358, 1362 (Pa. Cmwlth. 1997) (citations omitted). Rather, all of the harms alleged by the Borough in the Complaint relate to the landfill's operation and do not directly flow from the agreements or the Township's purported unconstitutional delegation of power; unlawful binding of future Boards of Supervisors regarding zoning decisions; or the failure to obtain an appraisal thereunder. They are, in fact, the harms that it is presumably challenging before DEP and EHB. As a result, the trial court did not err in determining that the Borough does not have standing to maintain Count I of the Complaint because it has not pleaded facts demonstrating a causal connection between the agreements and its alleged injury. Szoko, 974 A.2d at 1220.
See also Section 7540(a) of the Declaratory Judgments Act, 42 Pa. C.S. §7540(a) ("When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding....").
Standing in a declaratory judgment action for a non-party challenging a government contract has been allowed where the contract has directly affected the non-party's operations. See, e.g., Mid-Centre County Authority v. Township of Boggs, 384 A.2d 1008, 1010-11 (Pa. Cmwlth. 1998) (holding that a joint municipal authority organized to provide regional sewage service had standing to file a declaratory judgment action regarding an agreement between a township and others to construct an interim sewage treatment plant where the township required the joint municipal authority to purchase the interim plant as a condition of enacting the ordinances necessary to create the regional plant); Pennsylvania State Association of Township Supervisors v. Department of General Services, 666 A.2d 1153, 1156-57 (Pa. Cmwlth. 1995), aff'd, 689 A.2d 224 (Pa. 1997) (holding that associations composed of municipalities who participated in a "piggyback" purchasing program through the Department of General Services (DGS) could file a declaratory judgment action challenging an agreement between DGS and a competitor association requiring the participating municipalities to pay a subscriber fee to the competitor association in order to be notified of the available "piggyback" purchasing contracts). Likewise, Robinson Township is inapposite because the municipalities, the officials and the landowners in that case were directly affected by the provisions of Act 13. Id. at 918-19. Finally, Biester is inapposite because it only applies to a taxpayer challenging an obligation placed on the general public or an emolument given through the exercise of governmental power under general ordinances or statutes, see Boady, 699 A.2d at 1361; Drummond v. University of Pennsylvania, 651 A.2d 572, 577-78 (Pa. Cmwlth. 1994), appeal denied, 661 A.2d 875 (Pa. 1995); and the alleged harms will be addressed in the pending permitting process before DEP and EHB. --------
The Borough next claims that the trial court erred in determining that Count II is not ripe for resolution because EHB does not have jurisdiction to consider the validity of the contracts; and that Count III is not ripe because the remedial nature of the Environmental Immunity Act and the Declaratory Judgments Act allow the trial court to not only determine the validity of the contracts, but also to decide whether the Borough's actions in appealing to the EHB are worthy of immunity from a claim of tortious interference with contract.
Notwithstanding EHB's jurisdiction, as outlined above, the relief sought in Counts II and III of the Complaint is based on the state tortious interference claim that the Township and FKV raised in the dismissed federal lawsuit and the Borough's purported immunity to such a claim. Section 7537 of the Declaratory Judgments Act states that "[t]he court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding...." 42 Pa. C.S. §7537. As this Court has explained:
"In order to sustain an action under the Declaratory Judgments Act, a plaintiff must demonstrate an 'actual
controversy' indicating imminent and inevitable litigation, and a direct, substantial and present interest." To require otherwise would result in this Court issuing advisory opinions, which is beyond our jurisdiction to do. While the Governor requests declaratory judgment on ten issues in his Petitions for Relief, most of these issues depend upon the unfolding of hypothetical facts that may never occur. As such, they do not present this Court with a concrete case or controversy and, so, making declaratory judgments as to these issues would not resolve the underlying uncertainty. Therefore, pursuant to Section 7537 of the Declaratory Judgments Act, we must decline to render a judgment regarding these issues.Rendell v. State Ethics Commission, 938 A.2d 554, 559-61 (Pa. Cmwlth. 2007) (citations and footnotes omitted). Because there is no pending lawsuit filed by the Township or FKV raising a tortious interference claim and there is no allegation that such a lawsuit will ever be filed, the trial court did not err in refusing to grant the relief requested in Counts II and III of the Complaint.
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 10th day of April, 2015, the order of the Schuylkill County Court of Common Pleas dated June 27, 2014, at No. S-426-13, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Id. at 919-20 (citations omitted).