Carlino East Brandywine, L.P. v. Brandywine Village Associates

• Citation: 2021 PA Super 147
• Decision Date: 23 July 2021
• Docket Number: 1194 EDA 2019,J-A06024-20
• Court: Pennsylvania Superior Court
• Parties: CARLINO EAST BRANDYWINE, L.P. Appellee v. BRANDYWINE VILLAGE ASSOCIATES, JOHN R. CROPPER, INDIVIDUALLY AND AS GENERAL PARTNER OF BRANDYWINE VILLAGE ASSOCIATION, L & RPARTNERSHIP, RICHARD J. BLAIR, INDIVIDUALLY AND AS GENERALPARTNER OF L & R PARTNERSHIP, LEONARD G. BLAIR, INDIVIDUALLY AND AS GENERAL PARTNER OF L & R PARTNERSHIP, AND PAUL PRINCE, ESQUIRE Appellants

2021 PA Super 147

CARLINO EAST BRANDYWINE, L.P. Appellee
v.
BRANDYWINE VILLAGE ASSOCIATES, JOHN R. CROPPER, INDIVIDUALLY AND AS GENERAL PARTNER OF BRANDYWINE VILLAGE ASSOCIATION, L & RPARTNERSHIP, RICHARD J. BLAIR, INDIVIDUALLY AND AS GENERALPARTNER OF L & R PARTNERSHIP, LEONARD G. BLAIR, INDIVIDUALLY AND AS GENERAL PARTNER OF L & R PARTNERSHIP, AND PAUL PRINCE, ESQUIRE Appellants

No. 1194 EDA 2019

No. J-A06024-20

Superior Court of Pennsylvania

July 23, 2021

Appeal from the Order Entered April 11, 2019 In the Court of Common Pleas of Chester County Civil Division at No.: 2015-02938

BEFORE: STABILE, J., McLAUGHLIN, J., and STEVENS, P.J.E. ^[*]

OPINION

STABILE, J.

Appellants Brandywine Village Associates ("BVA" or "Brandywine"), John R. Cropper ("Cropper"), L&R Partnership ("L&R"), Richard J. Blair ("R. Blair"), Leonard G. Blair ("L. Blair"), (collectively the "Brandywine Defendants") and Paul Prince, Esquire ("Attorney Prince") (all collectively "Defendants" or "Appellants") appeal from the April 11, 2019 order of the Court of Common Pleas of Chester County ("trial court"), which granted Appellee Carlino East Brandywine, L.P.'s ("Carlino") motion to compel. In so doing, the trial court directed the Brandywine Defendants to produce documents relating to their communications with each other and Attorney Prince. Upon review, we vacate and remand for further proceedings.

I. BACKGROUND^[1]

The late Frank and Beatrice Watters owned a parcel of land located at 1279 Horseshoe Pike (State Route 322) in East Brandywine Township ("Township"), Chester County, which they subdivided into two contiguous parcels of 11.535 and 10.645 acres. The Watters conveyed the 11.535-acre parcel to BVA ("BVA Property") in June 1994 and contemporaneously entered into a 1994 Cross Easement Agreement (the "Agreement") with BVA, in which those parties granted and conveyed to each other certain cross easements to facilitate development of both parcels. In particular, the Agreement addressed, inter alia, (1) the construction and operation of a wastewater treatment plant, (2) the eventual availability of public sewer and its effect on the plant, (3) construction of an access drive, and (4) the construction of a stormwater retention basin.

In 1994, BVA secured Township land development approval and promptly constructed a small shopping center ("Brandywine Shopping Center") on its 11.535-acre parcel, which included a food market. The Watters, thereafter, agreed to sell the 10.645-acre parcel to Carlino ("Carlino Property"), which has remained the equitable owner pending its receipt of government approvals, including Township land development plan approval. Since 2010, Carlino has attempted to secure Township approvals to develop a Giant Food Store, a retail building, and a bank pad site on its parcel. BVA has vigorously opposed the development, which has generated continuing litigation.

A. Complaint

On April 6, 2015, Carlino instituted the instant civil action against the Brandywine Defendants^[2] and Attorney Prince, alleging causes of action for breach of contract, tortious interference with existing contractual relationship and prospective business relations, and abuse of process. Carlino filed an amended complaint on January 22, 2016. Carlino alleged that the Brandywine Defendants breached their contractual obligation under the Agreement. Amended Complaint, 1/22/16, at ¶¶ 110-113. Carlino further alleged that the Brandywine Defendants "intended to prevent and delay the development of the proposed Carlino Shopping Center, and made the false statements and baseless objections to, inter alia, interfere with Carlino's existing and/or prospective contracts with Giant Food and other prospective tenants." Id. at ¶ 116. Furthermore, Carlino alleged with respect to the Brandywine Defendants and Attorney Prince that they engaged in abuse of process by, among other things, making false and baseless statements in courts and before the Pennsylvania Department of Environmental Protection ("DEP") with the "wrongful purpose of preventing, interfering with and delaying [Carlino's] applications to secure approval for the proposed Carlino Shopping Center." Id. at ¶ 125. Specifically, Carlino alleged that Appellants falsely stated:

[1. P]ublic sewer was not available for the Brandywine Shopping Center to connect to when a public sewer line was in close proximity to the Shopping Center entrance

[2. T]he Brandywine Shopping Center could not connect to the public sewer without constructing a pump station when [Appellants] knew through their own engineer that the wastewater was conveyable by gravity to the sewer line in Brookhaven Lane

[3.] [BVA] needed the Sewer Easement to dispose of its treated wastewater when the Authority's Solicitor had confirmed in writing that [BVA] was exempt from any such requirement and the Authority had reserved sufficient capacity to treat and dispose of the wastewater from the [BVA] Property.

[4. I]t was impossible for the [BVA] Property to be connected to public sewer because to do so would require it to uproot and dismantle its internal wastewater collection system when there was no such requirement and their own engineer conceded that the Township had no such requirement and in fact, the Township never made any such requirement that [Appellants] uproot and dismantle its internal wastewater collection system.

[5. T]he Township is without authority to condemn [BVA]'s Easements for purposes of constructing the Connector Road, when as the [c]ourt previously pointed out in the 2012 decision, the Township has the authority to condemn land for construction of the Connector Road.

[6. T]he Township lacks a public purpose for condemning land for purposes of constructing the Connector Road when, as the [c]ourt previously determined, the Township has the authority to condemn land for the construction of the Connector Road.

[7.] Carlino, not the Township, desires the Connector Road when, as the Township indicated early on when the developer was [Gambone Brothers Development Co.] and later, Carlino, the Township wanted the Connector Road constructed.

[8.] Carlino's development plan must be rejected because [BVA] requires the Sewer Easement to dispose of its treated wastewater under Township zoning ordinances when the Authority Solicitor expressly exempted [BVA] from any such requirement.

[9.] [BVA] has a legitimate objection to the Connector Road when (i) [BVA] did not object to the Connector Road when Gambone included it on its development plan and (ii) [Attorney] Prince admitted at a Township meeting that the Township directed the location of the Connector Road shown on the Carlino development plan.

[10.] Carlino's development plan fails to comply with Township zoning ordinances relating to safe ingress and egress, setback and steep slope requirements when the [c]ourt previously rejected these same objections in the October 10, 2012 decision and [BVA] had not objected to the Connector Road that Gambone intended to construct in 2008.

[11. T]he [] Agreement purportedly grants [BVA] a right to obtain future easements over the Carlino Property for Appellants to use as they see fit when the [] Agreement provides no such rights.

Id. at ¶ 125(a)-(k). Relatedly, Carlino averred at paragraph 47 of the amended complaint that "[Appellants], through [Attorney] Prince, sent numerous letters to the DEP raising deliberately false, baseless, and convoluted objections to the Carlino planning module." Id. at ¶ 47. Carlino also alleged that Appellants (1) "misrepresented that 'a pump station would be required" for [BVA] to pump its wastewater to the public sewer line when in fact [BVA] knew that its wastewater was conveyable by gravity and that a pump station was not necessary," id. at ¶ 49; (2) "deliberately created issues to confuse and delay the DEP from approving Carlino's planning module," id. at ¶ 50; (3) "knowingly made [multiple] false statements to the DEP," id. at ¶ 51; (4) deliberately made "false statements and baseless objections to Carlino's planning modules," and as a result, "were able to prevent Carlino for years from obtaining the necessary approval from the DEP to connect the Carlino Property to the public sewer system," id. at ¶ 52; and (5) "persisted in their refusal to connect the [BVA] Property to the Authority's sewer system in breach of their contractual obligations," id. at ¶ 54. The court and DEP actions addressed: (a) easement rights affecting Carlino's property that BVA claims to possess; (b) BVA's compliance (or lack thereof) with the terms of the Agreement; (c) BVA's objections to and appeal of Carlino's development plans; (d) purchase of the Spence property; and (e) BVA's objections to the condemnation. See Trial Court Opinion, 7/16/19, at 2.

B. Answer

On February 12, 2016, Appellants filed their answer and new matter to the amended complaint. On March 21, 2016, Appellants amended their answer and new matter, repeatedly asserting that the Brandywine Defendants had relied on the advice and counsel of Attorney Prince in all underlying matters.^[3] Amended Answer and New Matter, 3/21/16, at ¶¶ 47, 49, 50, 51, 52, 54 and 219. In denying allegations contained in paragraph 47, Appellants answered, among other things, that "all actions taken by BVA[, ] if any[, ] were taken in good faith and in reliance on the advice of counsel." Id. at ¶ 47 (emphasis added). Similarly, Appellants responded to paragraphs 49-52, stating, "Any action taken by BVA or any Defendant on BVA's behalf was taken in good faith reliance on the advice of counsel." Id. at ¶¶ 49-52, respectively (emphasis added). At paragraph 54, Appellants answered, "BVA believed after consulting with counsel that the Authority did not have a publicly operated sewer plant or means of conveying Brandywine sewage to a treatment facility owned by the...