Bradley v. Zoning Hearing Bd. of the Borough of New Milford, 447 C.D. 2012

• Decision Date: 25 February 2013
• Docket Number: No. 447 C.D. 2012,447 C.D. 2012
• Citation: Bradley v. Zoning Hearing Bd. of the Borough of New Milford, No. 447 C.D. 2012 (Pa. Commw. Ct. Feb 25, 2013)
• Parties: Wayne Bradley, Appellant v. Zoning Hearing Board of the Borough of New Milford
• Court: Pennsylvania Commonwealth Court

Wayne Bradley, Appellant
v.
Zoning Hearing Board of the Borough of New Milford

No. 447 C.D. 2012

COMMONWEALTH COURT OF PENNSYLVANIA

Argued: December 12, 2012
FILED: February 25, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE P. KEVIN BROBSON, Judge

OPINION BY
PRESIDENT JUDGE PELLEGRINI

Wayne Bradley (Objector) appeals the order of the Court of Common Pleas of Susquehanna County (trial court) dismissing his appeal of the New Milford Borough (Borough) Zoning Hearing Board's (Board) decision that granted the application for a variance sought by Susquehanna County Housing Development Corporation (Landowner). We affirm.

Landowner owns the former Southern Tier Plastics plant on a 2.77-acre parcel located at 358 Church Street in the Borough's I-1 (Industrial) zoning district. Landowner intends to remove the industrial building and replace it with a mid-rise apartment building for senior citizens. To that end, on February 8, 2011, Landowner filed an application with the Board for a use variance to redevelop the parcel.

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When Landowner's request for a variance was being heard, Objector appeared through counsel both individually and as the owner of Wayne Bradley Trucking and Leasing, Incorporated, a business located in the Borough opposing the grant of the requested variance. Before the Board, Objector had testified that he does not reside in the Borough but owns property in the Borough at 153 Susquehanna Street which is across the street from Landowner's property which he uses for his business and where his son resides. He testified that his mother and father previously owned the property, his father passed away years ago, and it was devised to him by his mother when she died on September 17, 2010.¹ Nonetheless, on May 9, 2011, the Board granted Landowner's variance application. On June 9, 2011, Objector filed an appeal of the Board's decision granting the variance to the trial court. In that appeal, he alleged that he is the owner and occupant of the premises located at 153 Susquehanna Street in the Borough.²

While the appeal was pending before the trial court, by deed filed July 12, 2011, the parcel was conveyed by Objector and his mother's estate to H.L.

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Bradley Farms, Inc. Objector is the President, owner and sole shareholder of H.L. Bradley Farms, Inc. The Board then filed a motion to dismiss Objector's appeal on the basis that Objector lacked standing as an individual because he was not a "person aggrieved" because he did not own any property in the Borough. The trial court issued a rule to show cause upon Objector, returnable on February 19, 2012, as to why Objector's appeal should not be dismissed for Objector's lack of standing. On February 17, 2012, Objector filed an Affidavit of Ownership, explaining that he was the legal owner of the parcel by devise at the time the appeal was filed and that he remained the beneficial owner of the parcel following its conveyance to H.L. Bradley Farm, Inc. because he is the sole owner, shareholder and presiding officer of the corporation. (R.R. at 80a-84a.) However, the corporation never sought leave to appear or to intervene in the appeal, and Objector never sought leave to amend the pleading to prosecute the appeal on the corporation's behalf in his capacity as its sole owner, shareholder and presiding officer. After a hearing, the trial court granted the motion to dismiss and quashed Objector's appeal. This appeal followed.³

Objector contends that the trial court erred in quashing his appeal because he had standing to file the appeal to the trial court on June 9, 2011, in that

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on that date, he held legal title to the adjacent property at 153 Susquehanna Street in the Borough as devisee under his mother's will. He also asserts that he maintained standing to prosecute the appeal after he conveyed the adjacent property to H.L. Bradley Farms, Inc. on July 12, 2011, because he has beneficial ownership of the property due to his relationship with the corporation.

The owner of property that is adjacent to or abuts the property at issue is "aggrieved" and has standing to appeal a board decision.Laughman v. Zoning Hearing Board of Newberry Township, 964 A.2d 19, 22-23 (Pa. Cmwlth. 2009); Orie v. Zoning Hearing Board of Borough of Beaver, 767 A.2d 623, 625 (Pa. Cmwlth. 2001). To maintain standing, the landowner must continue to possess an interest in the property supporting his standing throughout the appeal process; otherwise, the appeal must be quashed.Sunnyside Up Corporation v. City of Lancaster Zoning Hearing Board, 739 A.2d 644, 649 (Pa. Cmwlth. 1999), appeal denied, 563 Pa. 636, 758 A.2d 666 (2000).See also Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 256 n.6, 721 A.2d 43, 46 n.6 (1998) (owner of adjoining property during appeals to the trial court and this Court was no longer "aggrieved" when the property was sold to another party during pendency of an appeal to the Supreme Court).

We agree with Objector that he had standing at the time that he filed the notice of appeal in the trial court because he held legal title to the adjoining property sufficient to confer standing. Objector's mother passed away on September 17, 2010, and he was the sole devisee of the property in her will and legal title to the realty of a testatrix passes at her death to her devisees.See Section

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301(b) of the Probate, Estates and Fiduciaries Code (Code), 20 Pa. C.S. §301(b) ("Legal title to all real estate of a decedent shall pass at his death to his heirs or devisees, subject, however, to all the powers granted to the personal representative by this code and lawfully by the will and to all orders of the court."); In re Estate of Peterson, 649 A.2d 1007, 1008 n.2 (Pa. Cmwlth. 1994), appeal denied, 541 Pa. 646, 663 A.2d 697 (1995) ("[A]lthough a devisee acquires legal title to specifically devised real property at the death of the testator, this title is subject to the powers of the personal representative and to all orders of the court until distribution is made. Thus, until distribution is made, the proper source of full legal title is both in the devisee and in the personal representative....") (citations omitted). However, while he had standing to take the appeal, Objector failed to maintain standing after he conveyed the property to H.L. Bradley Farms, Inc.

Even though he sold the property during the pendency of the appeal, Objector contends that he still had standing as a landowner⁴ as that term is defined by Section 107(12) of the MPC, 53 P.S. §10107(12), as "the legal or beneficial owner or owners of land", as well as "purchasers, optionees and some lessees", and "other persons having a proprietary interest in land".See Beekhuis v. Zoning

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Hearing Board of Middletown Township, 429 A.2d 1231, 1236-37 (Pa. Cmwlth. 1981) (holding that the statutory definition of "landowner" in Section 107(12) of the MPC is broader in scope than the common law concept of land ownership). He contends that he has standing because he has a beneficial interest in the property of H.L. Bradley Farms, Inc. as an officer and sole owner and shareholder of the company.

First, just because he was an officer of the corporation does not mean that he has standing because officers of a corporation are not deemed to be the owners of corporate property even to the extent that they are shareholders of the corporation.Barium Steel Corp. v. Wiley, 379 Pa. 38, 47, 108 A.2d 336, 341 (1954); Meitner v. State Real Estate Commission, 275 A.2d 417, 419 (Pa. Cmwlth. 1971) (citation omitted). A corporation must be presumed to be an independent entity even if it is solely owned by one person.Newcrete Products v. City of Wilkes-Barre, 37 A.3d 7, 12 (Pa. Cmwlth. 2012) (citation omitted).⁵ In short, "[a]

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shareholder has no distinct and individual title to the moneys or property of the corporation, nor any actual control over it...." In re Goetz's Estate, 236 Pa. 630, 633, 85 A. 65, 67 (1912) (citation omitted).

Second, Objector is not the "beneficial owner" of the corporation's real property to maintain standing to prosecute the instant appeal. Corporations are separate entities from the individuals that own them, and while a sole shareholder may be entitled to all the profits of a corporation, he or she is not the beneficial owner of property that the corporation owns any more than he or she is the "detrimental" owner of any obligations incurred in operating that property.⁶ An injury to a shareholder's interest in a corporation's assets does not give the shareholder standing to maintain an action because "[a]n injury to a corporation

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may, to be sure, result in injury to the corporation's stockholders. Such injury, however, is regarded as 'indirect,' and insufficient to give rise to a direct cause of action by the stockholder."Burdon v. Erskine, 401 A.2d 369, 370 (Pa. Super. 1979).See also Estate of Raleigh v. Mitchell, 947 A.2d 464, 470 n.7 (D.C. 2008) ("'The stockholders are equitable owners of the property and assets of the corporation.' ... However, such equitable interest does not alter the fact that title to corporate property is vested in the corporation, or permit a shareholder to sue on causes of action properly belonging to the corporation.") (citations omitted).⁷

Finally, H.L. Bradley Farms, Inc. never sought to intervene in the appeal before the trial court. Pa. R.C.P. No. 2177 provides that "[a]n action shall be prosecuted by or...