This blog is the first in a municipal law series on all things roads.  Property issues involving roads and paper alleys are fact specific and require an analysis of the facts and circumstances of your situation.  This blog series will provide an overview of the various topics that affect road analysis in Pennsylvania.  If you have a specific question or legal issue, please contact the municipal law attorneys at SMGG.

It is not uncommon for a Pennsylvania municipality, or a resident, to question whether a particular road is public or private.  The answer to this question is important because it determines who is responsible for maintaining the road, which can be a costly endeavor. It can also affect property rights and values as well as zoning decisions related to the property.

The most unambiguous method of answering this question is to determine if the road was formally declared or dedicated to and accepted by the municipality.  A municipality’s interest in a dedicated road will become foreclosed if the road was not accepted and opened for public use within 21 years from the dedication, unless there is consent of neighboring landowners.  36 P.S. § 1961.  But note that, within a recorded subdivision plan, the expiration of the twenty-one year period does not eliminate the private rights in the street of all other lot owners within the plan.

Other methods of determining the public nature of the road include eminent domain, statutory declaration, or prescription.  Under Pennsylvania law, for second class townships in particular, there are three separate and distinct methods for establishing the existence of a public road where the road has been laid out but not formally declared:

The first is the introduction of court records showing the road to have been opened under the act of June 13, 1836, P.L. 551, 36 P.S. §1781 et seq. [eminent domain].  The second is that provided in the Second Class Township Code [53 P.S. §67307], setting forth the circumstances under which there arises a conclusive presumption that a road is public.  The third is by prescription, requiring uniform, adverse, continuous use of the road under claim of right by the public for 21 years.

Stewart v. Watkins, 235 A.2d 604, 605 (Pa. 1967).

The second method, the statutory declaration, varies by the type of municipality.  The Second Class Township Code states that, “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 thirty-three feet.” 53 P.S. § 67307. The Borough Code has a similar provision that does not require maintenance of the road by the borough, but only that “the public has acquired rights by constant use over a period exceeding 21 years.” 8 Pa.C.S.A. § 1721.1.

Once public, a road will typically only become private if it is officially vacated by the municipality or a court. For instance, a public road of a second class township cannot be abandoned for lack of use or maintenance and may only be formally vacated if the Township follows the statutory procedure set forth under the Second Class Township Code. Clifford v. Ransom, 398 A.2d 768, 769 (Pa. Commw. Ct. 1979). “Such statutory directions must be strictly followed, because townships do not have any common-law power to build, improve or vacate roads.” Id. Where a public road is properly vacated, ownership of the road will revert to the abutting property owners to the centerline. 36 P.S. § 2131.

Please note that this blog post provides general information regarding road laws in Pennsylvania. If you own or are interested in purchasing a property which has an unimproved roadway on it, please reach out to a member of our municipal team so that we can provide more specific advice based on the facts and circumstances relating to your property. For more information on this or other municipal concerns, please contact Gretchen E. Moore at gmoore@smgglaw.com or Alexis M. Wheeler at awheeler@smgglaw.com.

Despite the abundance of working farms in Pennsylvania and the popularity of farm weddings, there is a dearth of state specific caselaw where the two intersect. When they do, the legal analysis from a zoning perspective is becoming clear.  

What does the zoning ordinance state?

What is the primary use of the property?

Is the entertainment use accessory to the primary use?

Are there any other protections that may apply to the use?

In a recent unreported decision by the Commonwealth Court, Fetterolf v. Zoning Hearing Board of Borough of Sewickley Heights, 2021 WL 772933 (Pa. Cmwlth. 2021), the Commonwealth Court upheld an enforcement action by the Borough prohibiting the use of the farm at issue as a school and event venue.  The property owners started renting the property, an Agricultural Operation under the Borough’s zoning ordinance, as an event space and venue for public and private events, such as weddings, public fundraisers, and business kick-starters; and for classes, such as canning classes, jelly, soap, and cheese making classes.  The property owners were cited for both uses:  (1) as an event space which is not allowed under the Borough’s zoning ordinance; and (2) as a school (special or studio), which was allowed as a conditional use in the zoning district.

On appeal to the Borough’s zoning hearing board (“ZHB”), landowners raised constitutional claims as well as several defenses, including accessory use and the Right to Farm Act (“RTFA”).  In upholding the ZHB’s decision on the enforcement action, the Commonwealth Court held that while the zoning ordinance allows for the existence of an “accessory use” to the primary Agricultural Operation on the property, the accessory use must be secondary and customarily incidental to the property’s principal use.  A “farm-to-table” concept may be accessory to a working farm if the products presented as “farm-to-table” were produced at the farm in question.  The ZHB found, and the Commonwealth Court agreed, that the various events that the owners described as “farm-to-table” (including weddings and fundraisers) did not feature food or agricultural products produced on the property.  Rather, the ZHB found that the witnesses described a contractual relationship between the parties who rent the property and the property owners indicative of that between the general public and a commercial venue or event space. 

As it relates to the classes, the ZHB found that the classes were generally not protected by the RTFA.  While a farm stand on the property was clearly protected by the RTFA, the holding of a class that involves some product from the farm along with a group teaching component, is not.  The ZHB did find that one of the programs, the Shepard Mentoring program, was protected by the RTFA because the very nature of the program required the working of the land and because the education of prospective farmers is a practice adopted by farmers to ensure the future of production and preparation for market of poultry, livestock and other agricultural commodities.

The demarcation of the line between agritourism and entertainment continues to be refined.  While tours, hayrides, “you pick” operations and corn mazes may be protected as accessory to the primary Agricultural Operation, weddings, concerts, and other entertainment don’t appear to meet the criteria of “accessory use.” Correspondingly, the recently enacted Pennsylvania Agritourism Activity Protection Act, which provides limited civil liability for agritourism activity providers, specifically excludes weddings, overnight accommodations, concerts, and food and beverage services from its protections. 

For more information on this or other zoning and land use concerns, please contact Gretchen E. Moore at gmoore@smgglaw.com or Alexis M. Wheeler at awheeler@smgglaw.com.

*Co-Authored by Alexis Wheeler, Ena Lebel, and Gretchen Moore

This is a supplement to our March 19, 2020 blog post “Public Meetings in the Wake of COVID-19.”  As public agencies grow some-what accustomed to operating in the unprecedented era of the COVID-19 pandemic, best practices for open meetings under the Sunshine Act have begun to develop. Here are some of those best practices for adhering to the Act when conducting official business:

Technology

 Notice

Public Comment

These matters are complicated, and the situation will continue to evolve.  If you have any questions, we suggest that you first consult your Solicitor.

Moreover, our public sector attorneys at SMGG are always available to serve as a resource, particularly at this time.  Feel free to contact Gretchen Moore at gmoore@smgglaw.com, Kathy Clark at kclark@smgglaw.com, Alexis Wheeler at awheeler@smgglaw.com, or Alan Shuckrow at ashuckrow@smgglaw.com.

[1] Erik Arneson, The Sunshine Act and the Coronavirus (COVID-19),  Pa. Office of Open Records (March 11, 2020)  https://openrecordspennsylvania.com/2020/03/11/the-sunshine-act-and-covid-19/.

As the COVID-19 pandemic persists, Pennsylvania municipalities continue to have questions regarding how to best conduct business in an era of social distancing. These questions include whether public meetings may be conducted without a physical quorum and, if so, how to best tailor and disseminate notice of remote meetings. HB 1564, which proposes to amend Title 53 of the Pennsylvania Consolidated Statutes, may be able to resolve some of these lingering uncertainties.

The major criticism of HB 1564 is that many municipalities are already on the same page in terms of best practices for conducting public meetings. Nonetheless, the bill could provide protection for municipalities following its procedures, while being broad enough to allow municipalities to figure out what works best for them. An undeniable benefit of the bill would be for boroughs, which unlike townships of the second class, are still required to establish a physical quorum at its meetings. A summary of the bill is set forth below.

On March 25, 2020, the bill passed unanimously in the House on third consideration. At the time of this blog post, HB 1564 is being considered by the Local Government Committee of the Senate. These matters are complicated, and the situation will continue to evolve.  If you have any questions, we suggest that you first consult your Solicitor.

Moreover, our public sector attorneys at SMGG are always available to serve as a resource, particularly at this time. Please contact Gretchen Moore at gmoore@smgglaw.com, Kathy Clark at kclark@smgglaw.comAlexis Wheeler at awheeler@smgglaw.com, or Alan Shuckrow at ashuckrow@smgglaw.com for assistance.

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic.[1] Internationally, precautions taken to prevent the spread of COVID-19 have had a negative impact on trade due, in part, to the delayed manufacturing and transportation of goods. It is eminently clear that COVID-19 has already made an impact on local, national, and international economies. With an incubation period ranging from one to fourteen days, it is difficult to determine the true scale of COVID-19 infections.[2] As such, the issue has been raised as to how the inability to perform under a contract, due to COVID-19 related precautions, would be analyzed where a force majeure clause exists and where one does not.

According to the Third Circuit, “a force majeure clause in a non-warranty contract defines the area of unforeseeable events that might excuse nonperformance within the contract period.”[3] The party claiming excusal has the burden of proof.[4] To excuse nonperformance, the event must have been beyond the party’s control and without its fault or negligence.[5] Generally, also as part of this burden, the nonperforming party must show what action it took to perform the contract regardless of the occurrence of the event.[6] However, the specific application and effect of a force majeure provision will depend on its language.[7]

A force majeure provision should contain four elements: (1) an enumeration of “triggering events,” along with a catch-all provision; (2) the required effect of a triggering event on performance; (3) the effect of the provision on other contractual obligations, and (4) a notice procedure.[8] Where any of these elements are left out or ambiguous, the provision should be interpreted with regard to the whole contract, “giving effect to each clause when practical.” [9]

Historically, a force majeure event, or a triggering event under a force majeure clause, was equated to an “act of God,” an “overpowering, superior, or irresistible force.”[10] However, force majeure provisions may be drafted to include a broader set of circumstances beyond the control of the party, such as sudden illness, war, or governmental interference.[11] This expansion in the realm of triggering events represents a straying from the concept that performance under a force majeure clause must be made impossible by the triggering event to the idea that performance could be made merely impractical by the triggering event.[12] At least in Pennsylvania, the two doctrines appear to have merged.[13] Therefore, impracticability will likely be the standard, unless the language of the provision indicates otherwise.

Where no force majeure provision exists, the doctrine of impracticability may be used as a defense to a claim of breach of contract for nonperformance after the occurrence of a major event.  A court may find impracticability when performance under the contract can only be carried-out at an excessive, unreasonable, and unbargained-for cost.[14] The considerations undertaken when analyzing a defense of impracticability largely mirror the elements of a force majeure clause. Impracticability requires: an event; nonoccurrence of the event must be a basic assumption of the contract; and that the party asserting the defense cannot be at fault for the occurrence of the event.[15]

In relation to the coronavirus outbreak, these legal concepts will only come into play upon the occurrence of a triggering event. It is unlikely that prophylactic measures taken on a voluntary basis will excuse performance. For example, in New York, officials have placed an indefinite ban on most gatherings of more than 500 people.[16] This sort of government interference with the performance of a contract concerning an event of more than 500 people may excuse performance under that contract.

However, preemptively canceling an event on the absence of such government interference may not amount to a triggering event without more evidence that fear or actual danger of the disease would render performance “impracticable.” This has to do, in part, with the fact that both a force majeure clause and the doctrine of impartibility rely on a triggering event being beyond the control of the nonperforming party.  Further, inherent to the burden of the nonperforming party is that it must show what action it took to perform the contract regardless of the occurrence of the event.[17] This would not be an issue for a force majeure clause that contemplates illness or public health crises.

If you have a question about this or any business matter, please contact Alexis Wheeler of Strassburger McKenna Gutnick & Gefsky at awheeler@smgglaw.com or (412) 281-5423.

 

 

[1] World Health Organization, Media briefing on #COVID19 with @DrTedros #coronavirus (March 11, 2020), https://www.pscp.tv/w/1djxXQkqApVKZ.

[2] See World Health Organization, Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), at 12, https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf (last visited March. 17, 2020).

[3] Gulf Oil Corp. v. F.E.R.C., 706 F.2d 444, 452 (3rd. Cir. 1983)(citing United States v. Brooks-Callaway Co., 318 U.S. 120 (1943)).

[4] Id.

[5] Id.

[6] Id. at 452.

[7] 77A C.J.S. Sales § 370; 30 Williston on Contracts § 77:31 (4th ed.); Rohm & Haas Co. v. Crompton Corp., 2002 WL 1023435, *3 (Pa. Ct. Com. Pl. Phila. Cnty. 2002).

[8] 2 Thomas D. Selz et al., Legal Concepts and Business Practices Entm’t Law 3d, § 9:61 (2019 ed.).

[9] Jennifer M. Bund, Force majeure Clauses: Drafting Advice for the CISG Practitioner, 17 J.L. & Com. 381, Spring 1998, at 410; Sabine Corp. v. ONG Western Inc., 725 F. Supp. 1157, 1166 (W.D. Okla. 1989).

[10] P.J.M. Declercq, Modern  Analysis of the Legal Effect of Force Majeure Clauses in Situations of Commercial Impracticability, 15 J.L. & Com. 213., Fall 1995, at 233.

[11] Id; 30 Williston on Contracts § 77:31 (4th ed.)(citing ARIPPA v. Pennsylvania Public Utility Com’n, 792 A.2d 636, 666 (Pa. Commw. Ct. 2002).

[12] Declercq, supra note 10.

[13] West v. Peoples First Nat. Bank & Trust Co., 106 A.2d 427, 432 (Pa. 1954);  Davis–Haas v. Exeter Township Zoning Hearing Board, 166 A.3d 527, 540 (Pa. Commw. Ct. 2017).

[14] 30 Williston on Contracts § 77:31 (4th ed.).

[15] Selz, supra note 8, at §9:139.30.

[16] GOVERNOR ANDREW M. CUOMO, During Novel Coronavirus Briefing, Governor Cuomo Announces New Mass Gatherings Regulations (March 12, 2020) https://www.governor.ny.gov/news/during-novel-coronavirus-briefing-governor-cuomo-announces-new-mass-gatherings-regulations.

[17] Gulf Oil Corp. v. F.E.R.C., 706 F.2d 444, 452 (3rd. 1983)(citing United States v. Brooks-Callaway Co., 318 U.S. 120 (1943)).

Act 78 of 2018: UNLAWFUL USE OF UNMANNED AIRCRAFT AND PROHIBITING LOCAL REGULATION OF UNMANNED AIRCRAFT

Amending Titles 18 (Crimes and Offenses) and 53 (Municipalities Generally) of the Pennsylvania Consolidated Statutes to prohibit the intentional or knowing use of a drone to: conduct surveillance of another in a private place; operate in a manner which places another person in reasonable fear of bodily injury, or; to deliver, provide, transmit or furnish contraband.  There are several enumerated exceptions to this amendment relating to law enforcement officers, firefighters, emergency medical responders, utility employees, and others while engaged in the performance of their official duties.

Act 78 of 2018 preempts and supersedes any regulation of a municipality relating to the ownership or operation of drones. However, “nothing under 18 Pa.C.S. § 3505 prohibits a municipality from using unmanned aircraft within the boundaries of the municipality for municipal purposes and regulating that use.”

 

Act 103 of 2018: EMERGENCY SERVICES AND QUALITY EYE CARE FOR INSURED PENNSYLVANIANS

Amending the Insurance Company Law of 1921, act of May 17, 1921 (P.L.682, No.284) (40 P.S. § 991.2116), to require managed care plans to “pay all reasonably necessary costs associated with emergency services provided during the period of emergency, subject to all copayments, coinsurances or deductibles” and to prohibit such plans from denying a claim for payment “solely because the enrollee did not require transport or refused to be transported” by a licensed emergency medical services agency.

 

Act 142 of 2018: LETTING CONTRACTS

Amending the Second Class Township Code, Section 3102(h)(8) (53 P.S. § 68102(h)(8)), to exclude from competitive bidding requirements the purchase of used “personal property” (i.e., equipment, articles, apparatus, etc.) from a volunteer fire company, volunteer ambulance service, or volunteer rescue squad, in addition to other entities previously enumerated in section (h)(8).

 

Act 145 of 2018: RESTITUTION FOR INJURIES TO PERSON OR PROPERTY AND VICTIM IMPACT STATEMENTS

Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes to include “an affected government agency” in the definition of “victim” and to allow restitution to be made to “any affected government agency” secondary only to the individual victim of a crime.

 

Act 156 of 2018: EXECUTIVE SESSIONS

Amending the Sunshine Act, Section 708(a) of Title 65 (Public Officers) of the Pennsylvania Consolidated Statutes, to allow executive sessions to be held to discuss matters that are “deemed necessary for emergency preparedness, protection of public safety and security of all property in a manner that if disclosed would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection.”

For more information about municipal laws, please contact Alexis M. Wheeler at awheeler@smgglaw.com  or at (412) 281-5423.