Opinion
No. 1442 C.D. 2011 No. 219 C.D. 2012 No. 220 C.D. 2012
07-23-2012
Robert B. Sklaroff, M.D., Appellant v. Township of Abington and Baederwood Limited Partnership
OPINION NOT REPORTED
MEMORANDUM OPINION
In these consolidated appeals, Robert B. Sklaroff, M.D., appeals from three Orders of the Court of Common Pleas of Montgomery County (trial court). At Docket No. 1442 C.D. 2011, Sklaroff is appealing the trial court's Order of July 26, 2011 (Dismissal Order) quashing and dismissing Sklaroff's procedural challenge to Ordinance Nos. 2000 and 2006 of the Township of Abington (Township). At Docket No. 219 C.D. 2012, Sklaroff is appealing the trial court's Order of January 27, 2012 (Subpoena Order) quashing several subpoenas issued by Sklaroff. At Docket No. 220 C.D. 2012, Sklaroff is appealing a second trial court Order of January 27, 2012 (Bond Order) finding that Sklaroff's land use appeal at Docket No. 1442 C.D. 2011, is frivolous and ordering Sklaroff to post a bond in the amount of $200,000 within ten days in order to proceed further with this appeal. Also before this Court for disposition is Baederwood Limited Partnership's (Intervenor) "Application to Quash Appeal" seeking to quash Sklaroff's appeal of the Dismissal Order to this Court, at Docket No. 1442 C.D. 2011, based on Sklaroff's failure to post the $200,000 bond within the required ten-day time period.
These appeals were consolidated by this Court on February 29, 2012.
By Order of February 29, 2012, this Court directed that Intervenor's "Application to Quash Appeal" be listed with the merits of these consolidated appeals.
The factual and extensive procedural history of these appeals is as follows. Ordinance Nos. 2000 and 2006, known as the "Fairway Transit District" or "FTD" Ordinances, were adopted by the Township on January 6, 2011. Ordinance No. 2000 created a new Fairway Transit District, and Ordinance No. 2006 rezoned three parcels of land comprising the Baederwood Shopping Center (Shopping Center) to the newly created Fairway Transit District. The Shopping Center is owned by Intervenor. The Township enacted the FTD Ordinances in response to a substantive validity challenge alleging spot zoning filed by Intervenor with respect to the zoning of one of the Shopping Center parcels. (August 31, 2011 Trial Ct. Op. at 1; July 12, 2011 Hr'g Tr. at 5, R.R. at 1129.)
On February 3, 2011, Sklaroff filed a "Petition for Review of Township Ordinance Adjudication" (Petition for Review) in the trial court against the Township pursuant to the Pennsylvania Municipalities Planning Code (MPC) challenging the procedural validity of the Township's FTD Ordinances. Sklaroff served only the Township with the Petition for Review and, thus, did not comply with the MPC. On March 18, 2011, the Township filed preliminary objections to Sklaroff's Petition for Review. On March 31, 2011, Sklaroff filed with the trial court an 832 page "Mandamus-Petition for Review of Township Ordinance Adjudication" against the Township, which was also served only upon the Township. On June 6, 2011, the Township filed a "Motion to Strike Mandamus-Petition for Review of Municipal Ordinance Adjudication or in the Alternative Seeking Leave of Court to Allow the Filing of a Responsive Pleading Nunc Pro Tunc." Sklaroff filed a reply thereto. On June 15, 2011, the trial court conducted a pre-trial conference and, at the conclusion of a private discussion with the parties, the trial court dictated on the record a summary of Sklaroff's actions against the Township and an order memorializing the parties' agreement with respect to those actions. (June 15, 2011 Tr. of Order of Court.) The trial court determined that Sklaroff''s actions against the Township consisted of two parts: (1) a substantive validity challenge to the Township's FTD Ordinances that was required to be heard by the Township's zoning hearing board pursuant to the MPC; and (2) a procedural challenge to the enactment of the Township's FTD Ordinances that was required to be heard by the trial court. Accordingly, pursuant to the parties' agreement, the trial court ordered as follows:
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202.
Pursuant to Section 1003-A(c) of the MPC, added by Section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11003-A(c), a person, who is not the landowner, filing an appeal with the trial court that alleges procedural defects in the process of an enactment of an ordinance, must serve the landowner with a copy of the land use appeal notice within seven days after the land use appeal is filed. In this matter, it is undisputed that Sklaroff did not serve Intervenor, as the owner of the affected property, with any of the filings he made with the trial court and, thus, did not comply with Section 1003-A(c) of the MPC.
See Section 916.1 of the MPC, added by Section 99 of the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. § 10916.1. Section 916.1(a) provides that a substantive validity challenge to an ordinance must be filed with either the zoning hearing board or the governing body of a municipality. Id.
See Section 1002-A of the MPC, added by Section 101 of the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. § 11002-A. Section 1002-A(b) provides that procedural challenges to the validity of a land use ordinance must be raised by an appeal directed to the trial court. Id.
One: This case is stayed in part and remanded in part.
Two: Forthwith, the applicant shall file with the [T]ownship on the appropriate [T]ownship forms a substantive challenge to the validity of the ordinances in question.
Three: The [T]ownship shall accept the filing and shall not contest the right or timeliness of the filing. By right, I mean standing or timeliness of the filing.
Four: The substantive challenge shall be heard by the Zoning Hearing Board of Abington Township. . . .
Five: Upon the completion of testimony presented in that matter before the zoning hearing board, the zoning hearing board shall comply with the requirements of the [MPC] to render a decision, including findings of fact and conclusions of law, which may be appealed by any aggrieved party.
Six: The remaining portion of this case which constitutes, in this Court's opinion, a procedural challenge to the enactment of the ordinance[s] shall be heard by this Court in the future.
Seven: Within 45 days of today's date, the applicant shall file an amended procedural challenge to this Court in conformity with the Rules of Court and the requirements of the [MPC] setting forth with specificity in separate numbered paragraphs each and every procedural deficiency complained of.
Eight: The [T]ownship shall respond to that in accordance with the rules. However, the determination of that issue shall be stayed until such time as the decision of the zoning hearing board becomes final
and unappealable in the substantive challenge or that decision comes before this Court for consideration.(June 15, 2011 Tr. of Order of Court at 8-10.)
Nine: There shall be no additional fees in terms of filing charged by the [T]ownship with respect to the substantive challenge, the respondent having paid a filing fee to be before this Court. However, any costs that are normally associated with that may be charged.
In accordance with the trial court's Order, Sklaroff filed a "Procedural Petition for Review of Township Ordinance Adjudication" (Procedural Petition) against the Township, which was served only on the Township on June 20, 2011. On June 27, 2011, Intervenor filed a Notice of Intervention and, on June 29, 2011, filed a separate "Motion to Quash Procedural Challenge and Alternative Request for the Imposition of a Bond" (Intervenor's Motion to Quash). Therein, Intervenor stated that it was the legal landowner of the property directly affected by Sklaroff's procedural challenge and that Sklaroff lacked standing pursuant to Section 1002.1-A(c) of the MPC, 53 P.S. § 11002.1-A(c), to challenge the procedural validity of the FTD Ordinances. (Intervenor's Motion to Quash at 1-5, R.R. at 986-90.) On July 1, 2011, Sklaroff filed a reply to Intervenor's Motion to Quash. On July 5, 2011, Sklaroff filed a "Motion to Quash Intervenor's Motion to Quash" on the basis, inter alia, that Intervenor's Notice of Intervention was filed more than 30 days after Sklaroff filed his initial procedural challenge on March 31, 2011; therefore, Intervenor could not intervene as a matter of right. (Sklaroff's Motion to Quash at 17, R.R. at 1031.) On July 5, 2011, the Township filed a "Motion to Strike Sklaroff's Procedural Petition" asserting that Sklaroff lacked standing and the Procedural Petition failed to conform with the trial court's June 15, 2011 Order. (Township's Motion to Strike at 1-6, R.R. at 1068-73.) Sklaroff filed a reply to the Township's Motion to Strike on July 7, 2011.
Added by Section 5 of the Act of July 4, 2008, P.L. 319. Section 1002.1-A governs "appeals challenging the validity of a land use decision on the basis of a defect in procedures prescribed by statute or ordinance." 53 P.S. § 11002.1-A. Section 1002.1-A(c) provides:
Appeals under this section shall only be permitted by an aggrieved person who can establish that reliance on the validity of the challenged decision resulted or could result in a use of property that directly affects such person's substantive property rights.
On July 12, 2011, the trial court heard arguments on Intervenor's Motion to Quash and its request for the imposition of a bond in the event the trial court denied the Motion to Quash. Intervenor and the Township argued that Sklaroff lacked standing pursuant to the MPC to procedurally challenge the FTD Ordinances because he was not an aggrieved party. Sklaroff argued that: (1) he was granted standing pursuant to paragraph three of the trial court's June 15, 2011 Order; therefore, Intervenor and the Township could not challenge his standing; (2) Intervenor lost the opportunity to challenge Sklaroff's standing by failing to participate in the June 15, 2011 proceeding before the trial court; and (3) although he lived over a mile away from the Shopping Center, he and the citizenry traversed the roadways/intersection near the rezoned Shopping Center every day.
Intervenor's Motion to Quash and its request for the imposition of a bond were the only two matters scheduled to be heard by the trial court on July 12, 2011. (July 12, 2011 Hr'g Tr. at 2-3, R.R. at 1126-27.) However, the Township orally joined in Intervenor's Motion to Quash without objection. As such, the Township presented its own arguments, and joined in the arguments by Intervenor, in support of the entrance of an order by the trial court quashing Sklaroff's Procedural Petition. (July 12, 2011 Hr'g Tr. at 23-29, R.R. at 1147-53.)
After hearing the parties' arguments, the trial court determined that it would first determine the issue of whether Sklaroff had standing to procedurally challenge the enactment of the FTD Ordinances. (July 12, 2011 Hr'g Tr. at 47-48, R.R. at 1171-72.) By Order of July 26, 2011, the trial court quashed and dismissed Sklaroff's Procedural Petition. In an opinion in support of its Order, the trial court held that Sklaroff lacked standing to challenge the FTD Ordinances because: (1) his property was not close enough in proximity to the challenged zoning area; and (2) he failed to allege a substantive property right that the FTD Ordinances would directly affect. (August 31, 2011 Trial Ct. Op. at 4.) This appeal followed.
Thereafter, Intervenor filed with the trial court a "Petition to Require Posting of Bond as a Condition of Proceeding with Appeal to the Commonwealth Court" (Petition to Post Bond) pursuant to Section 1003-A(d) of the MPC. An evidentiary hearing before the trial court on Intervenor's Petition to Post Bond was scheduled for January 27, 2012. Sklaroff then served 14 subpoenas in connection with the scheduled hearing. In response, the Township filed a "Motion to Quash Subpoenas." By Order of January 19, 2012, the trial court stayed the subpoenas pending disposition of the Township's Motion to Quash Subpoenas and scheduled a hearing on the motion for January 27, 2012. Following the joint January 27, 2012 hearing on Intervenor's Petition to Post Bond and the Township's Motion to Quash Subpoenas, the trial court entered two separate orders: (1) the Bond Order finding that Sklaroff's land use appeal of the Dismissal Order at Docket No. 1442 C.D. 2011 is frivolous and ordering Sklaroff to post a bond in the amount of $200,000 within ten days; and (2) the Subpoena Order quashing the subpoenas issued by Sklaroff. Sklaroff appealed both the Bond Order and Subpoena Order to this Court. In an opinion filed in support of its Orders, the trial court stated that: (1) it "properly exercised its discretion in requiring" Sklaroff to post a bond; (2) Intervenor established at the January 27, 2012 "hearing that [it] would incur considerable financial loss as a result of the delay caused by the outstanding [a]ppeal"; and (3) as a matter of law, Sklaroff's appeal to this Court at Docket No. 1442 C.D. 2011 is frivolous. (April 11, 2012 Trial Ct. Op. at 2.) The trial court noted further that it properly quashed Sklaroff's subpoenas because the court "[found] that the witnesses sought could not provide any relevant testimony at the bond hearing." (April 11, 2012 Trial Ct. Op. at 2 n.2.)
Added by Section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11003-A(d). Section 1003-A(d) provides as follows:
The filing of an appeal in court under this section shall not stay the action appealed from, but the appellants may petition the court having jurisdiction of land use appeals for a stay. If the appellants are persons who are seeking to prevent a use or development of the land of another, whether or not a stay is sought by them, the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal. After the petition for posting a bond is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the landowners to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for posting a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court. The question of the amount of the bond shall be within the sound discretion of the court. An order denying a petition for bond shall be interlocutory. An order directing the respondent to the petition for posting a bond to post a bond shall be interlocutory. If an appeal is taken by a respondent to the petition for posting a bond from an order of the court dismissing a land use appeal for refusal to post a bond, such responding party, upon motion of petitioner and, after hearing in the court having jurisdiction of land use appeals, shall be liable for all reasonable costs, expenses and attorney fees incurred by petitioner.
Following his appeals from the trial court's Bond Order and Subpoena Order, Sklaroff filed an "Application for Stay" and an "Application for Consolidation" with this Court on February 8, 2012. By Order of February 29, 2012, we granted, in part, and denied, in part, Sklaroff's Application for Consolidation and consolidated his appeal at this Court's Docket No. 1442 C.D. 2011 with his appeals of the Bond Order (Docket No. 220 C.D. 2012) and the Subpoena Order (Docket No. 219 C.D. 2012). We further denied his Application for Stay of his appeal at this Court's Docket No. 1442 C.D. 2011 pending our disposition of his appeals from the trial court's Bond Order and Subpoena Order.
On February 16, 2012, Intervenor filed the "Application to Quash Appeal" (Application to Quash 1442 C.D. 2011) currently before this Court for disposition. On February 21, 2012, Sklaroff filed a "Response to Application to Quash Appeal[s]" (Response).
Before we address Intervenor's Application to Quash 1442 C.D. 2011, we will first address Sklaroff's appeal of the trial court's Bond Order at Docket No. 220 C.D. 2012 and determine if the trial court abused its discretion by finding that Sklaroff's appeal at Docket No. 1442 C.D. 2011 is frivolous. It is well established that
In C.A.N.D.L.E. v. Board of Commissioners of Fayette County, 502 A.2d 742, 744 (Pa. Cmwlth. 1985), this Court determined that it would be more equitable to review whether the imposition of an appeal bond was valid before addressing whether the appeal should be quashed due to failure to post the required bond. "Our review of a trial court's imposition of an appeal bond is limited to determining whether the trial court abused its discretion." Takacs v. Indian Lake Borough Zoning Hearing Board, 18 A.3d 354, 358 n.3 (Pa. Cmwlth. 2011).
[u]nder Section 1003-A(d) of the MPC, a party seeking to have a trial court direct the posting of an appeal bond must demonstrate that the appeal is frivolous. In evaluating whether a trial court correctly concluded that an appeal is frivolous, this Court must consider the merits of the appeal. In re Kuzmiak, 845 A.2d 961 (Pa. Cmwlth. 2004). This Court has opined that the mere novelty of an issue is not a sufficient basis from which to determine whether an issue has merit. [In re] Appeal of Langmaid Lane Homeowners Association, [] 465 A.2d 72, 76 ([Pa. Cmwlth.] 1983). Rather, a court may conclude that an issue is frivolous when there is no reasoned interpretation that might support an appellant's position, and, therefore, the appellant had no reasonable chance of success. Id.Newtown Square East, L.P. v. National Realty Corporation, 38 A.3d 1018, 1030 (Pa. Cmwlth. 2011) (footnote omitted).
At Docket No. 1442 C.D. 2011, Sklaroff is appealing the trial court's July 26, 2011 Dismissal Order quashing and dismissing his procedural challenge to the FTD Ordinances because Sklaroff lacked standing. Sklaroff argues that he does not lack standing for two primary reasons, which we shall address separately. First, Sklaroff contends that he was granted standing in paragraph three of the trial court's June 15, 2011 Order. However, a review of the complete text of the trial court's Order, as set forth herein, reveals that Sklaroff misunderstands this provision of the Order. Paragraph three provides, "The [T]ownship shall accept the filing and shall not contest the right or timeliness of the filing. By right, I mean standing or timeliness of the filing." (June 15, 2011 Tr. of Order of Court at 8, ¶ Three (emphasis added).) In this paragraph, the trial court is referring to the filing of Sklaroff's substantive challenge with the Township, and not the filing of the procedural challenge with the trial court. See Paragraphs Two-Six of Trial Court's June 15, 2011 Order (June 15, 2011 Tr. of Order of Court at 8-9). Thus, paragraph three does not apply to the present case.
A decision to grant or deny a motion to quash by the trial court in a zoning matter is a question of law. Spahn v. Zoning Board of Adjustment, 922 A.2d 24, 27 n.6 (Pa. Cmwlth. 2007).
Second, Sklaroff argues that he does not lack standing because he has a direct, substantial, and immediate interest in whether the Fairway Transit District is ultimately effectuated. As noted herein, Section 1002.1-A(c) of the MPC provides that "[a]ppeals under this section shall only be permitted by an aggrieved person who can establish that reliance on the validity of the challenged decision resulted or could result in a use of property that directly affects such person's substantive property rights." 53 P.S. § 11002.1-A(c). This Court recently stated:
To establish "aggrieved" status for purposes of standing, a party must have a substantial, direct, and immediate interest in the claim sought to be litigated. Laughman v. Zoning Hearing Board of Newberry Township, 964 A.2d 19[, 22] (Pa. Cmwlth. 2008). In order to have a substantial interest, there must be some discernible adverse affect to some interest other than the abstract interest of all citizens in having others comply with the law. Pilchesky v. Doherty, 941 A.2d 95[, 99] (Pa. Cmwlth. 2008). The interest must be immediate and not a remote consequence of the judgment. Id. A person has standing where he has suffered or will suffer "injury in fact" and the interest he seeks to protect is arguably within the zone of interest sought to be protected or regulated by the statute or constitutional guarantee in question. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, [199 n.23,] 346 A.2d 269[, 284 n.23] (1975). . . . An objector who is located in close proximity to the land involved in a zoning application normally has standing to contest the application. Active Amusement
Co. v. Zoning Board of Adjustment, [] 479 A.2d 697[, 700] ([Pa. Cmwlth.] 1984).In Re: Appeal of Broad Mountain Development Company, LLC, 17 A.3d 434, 440 (Pa. Cmwlth.), petition for allowance of appeal denied, ___ Pa. ___, 24 A.3d 864 (2011). A property owner who asserts no interest in the zoning challenge other than the interest common to all citizens does not have standing. Spahn v. Zoning Board of Adjustment, 922 A.2d 24, 31 (Pa. Cmwlth. 2007).
See Society Created to Reduce Urban Blight (SCRUB) v. Zoning Hearing Board of Adjustment of the City of Philadelphia, 951 A.2d 398, 404 (Pa. Cmwlth. 2008) ("[A]bsent an assertion of a particular harm, standing has been denied to a protestant with no property interest in the immediate vicinity.") An owner whose property is located one-half mile or more away from the challenged zoning area has been deemed not close enough in proximity to confer standing upon the property owner. Id. (holding that three property owners did not have standing to challenge a sign where their properties were located approximately 1.2 miles, 5 miles, and 8 miles, respectively, away from the sign's location and the owners acknowledged that the challenged sign was not visible from their properties); In Re: Appeal of Farmland Industries, Inc., 531 A.2d 79, 83 (Pa. Cmwlth. 1987) (concluding that a corporate property owner did not have standing to oppose grant of variance to competitor to erect a sign where the corporate property was located one-half mile away).
Based on our precedent interpreting the MPC and standing and the evidence presented to the trial court, the trial court properly determined that Sklaroff lacked standing to challenge the enactment of the FTD Ordinances on procedural grounds. When Sklaroff was questioned by the trial court as to his position on standing during the July 12, 2011 proceedings regarding Intervenor's Motion to Quash, Sklaroff responded as follows:
MR. SKLAROFF: The standing issue goes to the gravamen of the case because the key issue is the communication of cars and emergency vehicles between an entity like a police station and a hospital and people on the other side of the road or tracks, like me. Therefore, it is not just me traversing the intersection. It is
everybody. Not only that, but this [is] very well documented in the literature, which we can discuss some other time.(July 12, 2011 Hr'g Tr. at 34-36, 43-44, R.R. at 1158-60, 1167-68.)
. . . .
This is not about me. It is about the citizenry.
THE COURT: Do you think under the law you have standing?
MR. SKLAROFF: Absolutely. . . .
THE COURT: Well, what relationship do you have with the area that is subject to the rezoning ordinance that you're challenging?
MR. SKLAROFF: I live proximate to and use the area. And more importantly -
THE COURT: But you live over a mile away.
MR. SKLAROFF: Right but I use the intersection every day. I used it today.
. . . .
MR. SKLAROFF: . . . [M]y standing goes right to the heart of a major problem I had, that is the emergency vehicular movement . . . And the police power has to be exerted in order to protect the health and welfare of the citizenry. And that means being specifically included in both the ordinance and in the statute as well as cited in the case law, the fact that emergency vehicles have to be able to traverse that system; meaning, that intersection, that choke point; meaning, police and ambulance.
When I have my heart attack, I want to make sure they get there as quickly as they can to get me over to the hospital.
Sklaroff's concession that he lives over a mile away from the zoning area being challenged in his Procedural Petition supports the trial court's determination that Sklaroff lacked standing because his property is not in close proximity to the challenged zoning area. The MPC and our prior cases do not support Sklaroff's contention that he has standing because his personal health and safety are akin to a "property" interest that is not predicated on his residing any particular distance from the Fairway Transit District. There are specific statutory and judicial requirements that must be met in order for a property owner to have standing to challenge a zoning decision. A party must be aggrieved to have standing, see Section 1002.1-A(c) of the MPC; as such, standing cannot be "intuitively justified" as Sklaroff contends. (Sklaroff Br. at 23.) In addition, Sklaroff's statements to the trial court reflect that he asserted an interest common to all citizens rather than a substantial, direct, and immediate interest in the enactment of the FTD Ordinances that is particular to him. Finally, Sklaroff's concern that emergency vehicles will not be able to traverse the resulting congested intersection near the rezoned Fairway Transit District in the event he has a heart attack is considered speculative under the law, and a concern of "remote consequences." See Laughman, 964 A.2d at 23 (holding that increase in traffic on road passing property owner's rental properties, which were 8/10 and two miles from the challenged zoning area, was not a "direct injury" as "all citizens share concerns regarding traffic and safety" and that "[a]ny concern that the increase in traffic might lead to accidents is merely a concern of "'remote consequences.'").
Accordingly, the trial court did not abuse its discretion when it found that Sklaroff's appeal to this Court at Docket No. 1442 C.D. 2011 is frivolous as a matter of law. There is no reasoned interpretation that might support Sklaroff's position that he had standing to procedurally challenge the FTD Ordinances; therefore, Sklaroff has no reasonable chance of success. Thus, the trial court's January 27, 2012 Bond Order is affirmed.
We now turn to Intervenor's Application to Quash 1442 C.D. 2011. Intervenor argues that Sklaroff's appeal should be quashed because Sklaroff did not post the bond within ten days, or by February 6, 2012, as ordered by the trial court on January 27, 2012. In his response, Sklaroff admits that he did not post the bond as ordered by the trial court; however, Sklaroff contends that a timely motion for reconsideration of the Bond Order that he had filed with the trial court constituted a motion to "stay" the imposition of the bond. Sklaroff states further that he "would be happy to file a bond immediately were this to be mandated by this Court, pending resolution of the case, but it is [his] understanding that a "Stay" appeal serves to "stay" the urgency of filing a bond." (Sklaroff's Response at 3 (emphasis in original).) Unfortunately, Sklaroff's understanding is not correct.
We point out that a pro se litigant must, to some extent, assume the risk that his lack of legal training will prove to be his undoing. Vann v. Unemployment Compensation Board of Review, 508 Pa. 139, 148, 494 A.2d 1081, 1086 (1985).
The trial court's Bond Order ordered that Sklaroff post the $200,000 bond within ten days, or by February 6, 2012. Sklaroff failed to do as ordered and further failed to file a timely motion for stay of the trial court's Bond Order. Instead, Sklaroff filed a "Motion to Reconsider and Response to Rule-to-Show-Cause why Motion to Quash Subpoenas should not be Granted" wherein he: (1) only takes issue with the trial court's rulings; (2) does not allege any reason why the imposition of the bond should be stayed; and (3) does not request, either specifically or indirectly, that the trial court stay the Bond Order. Moreover, Sklaroff's filing of an "Application for Stay" with this Court, requesting that we stay his appeal at Docket No. 1442 C.D. 2011 pending the disposition of his appeals from the Bond Order and Subpoena Order, did not result in an automatic stay of the trial court's Bond Order. In short, Sklaroff has not offered an acceptable explanation as to why he did not post the bond within ten days as ordered by the trial court on January 27, 2012.
The trial court's docket entries show that Sklaroff's Motion for Reconsideration of the Bond Order was denied on February 21, 2012.
We note that in his "Response to Application to Strike Appellant's Motion for Stay" filed with this Court on February 21, 2012, Sklaroff attached a document entitled "'Motion to Reconsider' and 'Motion to Stay' [Filed 'Nunc Pro Tunc']" that Sklaroff allegedly filed with the trial court on or about February 17, 2012. In that document, Sklaroff states that he filed a motion for stay of the Bond Order with the trial court which was fashioned as a "Motion to Reconsider and Response to Rule-to-Show-Cause why Motion to Quash Subpoenas should not be Granted," and that in this Court his motion for stay was fashioned as "Brief in Support of Application/Motion for Stay" docketed at 1442 C.D. 2011. However, the trial court's docket entries do not reflect the filing of the aforementioned document and, by Order of April 24, 2012, this Court struck Sklaroff's "Brief in Support of Application/Motion for Stay" filed on April 19, 2012, as there was no outstanding application or motion for stay for disposition by this Court.
This Court may grant a party's motion to quash due to the appealing party's failure to post a bond imposed by a valid bond order of a trial court pursuant to Section 1003-A(d) of the MPC. See PPM Atlantic Renewable v. Fayette County Zoning Hearing Board, 22 A.3d 253 (Pa. Cmwlth. 2011) (where appellant failed to appeal trial court's bond order, our Court granted applicant's motion to quash for failure to post the appeal bond); Takacs v. Indian Lake Borough Zoning Hearing Board, 18 A.3d 354, 356 (Pa. Cmwlth. 2011) (after determining that bond order was valid, this Court granted developer's motion to quash the appeal due to appellant's failure to post the appeal bond). Accordingly, we grant Intervenor's Application to Quash and quash Sklaroff's appeal at Docket No. 1442 C.D. 2011 for failure to post the appeal bond.
Petition for allowance of appeal granted, ___ Pa. ___, 41 A.3d 854 (2012).
Finally, we turn to Sklaroff's appeal of the trial court's January 27, 2012 Subpoena Order. Sklaroff contends that the trial court's Subpoena Order was unjustified and unprecedented. Sklaroff states that he served ten Township Commissioners and four professionals (two attorneys involved in this litigation, an attorney consultant, and a land-planner) to attend the January 27, 2012 hearing before the trial court on Intervenor's Petition to Post Bond. Sklaroff does not explain in his brief as to what these individuals would have specifically testified to at the January 27, 2012 hearing.
"It has been previously stated that '[w]hether a subpoena shall be enforced rests in the judicial discretion of the court.'" In re Semeraro, 511 Pa. 584, 587, 515 A.2d 880, 882 (1986) (quoting Pennsylvania Crime Commission v. Nacrelli, 5 Pa. Commonwealth Ct. 551, 577 (1972)). Courts "will not disturb a discretionary ruling of a lower court unless the record demonstrates an abuse of the court's discretion." Id. at 587, 515 A.2d at 882. "So long as there is evidence which supports the lower court's decision, it will be affirmed. We may not substitute our judgment of the evidence for that of the lower court." Id.
As stated previously herein, the trial court quashed Sklaroff's subpoenas because the court "[found] that the witnesses sought could not provide any relevant testimony at the bond hearing." (April 11, 2012 Trial Ct. Op. at 2 n.2.) A review of a sampling of the subpoenas served by Sklaroff shows that each witness was being subpoenaed to attend the January 27, 2012 hearing and to testify on behalf of the "truth." (Certified Record, Township Ex. T-1.) The subpoenas further directed the witnesses to bring with them "any and all personal/professional records regarding communication between yourself and any and all representatives of Brandolini during 2011." (Certified Record, Township Ex. T-1.) During the January 27, 2012 hearing, the trial court asked Sklaroff two times why the witnesses were potentially relevant as to whether or not Sklaroff's appeal to this Court was frivolous. (January 27, 2012 Hr'g Tr. at 23-24, S.R.R. at 108b-09b.) In response to the trial court's inquiries, Sklaroff stated, inter alia, that the witnesses could "flesh out" the criteria required to prove standing, and that the witnesses would review and discuss certain "data and legitimatize the veracity of the submissions of evidence which [Sklaroff could not] do right now." (January 27, 2012 Hr'g Tr. at 23-26, S.R.R. at 108b-11b.) Accordingly, we conclude that the trial court did not abuse its discretion by finding that the witnesses could not provide any relevant testimony at the bond hearing. Therefore, the trial court's January 27, 2012 Subpoena Order is affirmed.
Brandolini Companies is the developer of the property affected by the FTD Ordinances. Intervenor presented Frederick Snow, President of Brandolini Companies, as a witness during the January 27, 2012 hearing on Intervenor's Petition to Post Bond. Mr. Snow testified as to the effects of Sklaroff's appeal on the development of the subject property. (January 27, 2012 Hr'g Tr. at 65-113, S.R.R. at 150b-98b.) --------
For the foregoing reasons, we affirm the trial court's Subpoena Order and Bond Order, grant Intervenor's Application to Quash Sklaroff's Appeal, and quash Sklaroff's appeal at Docket No. 1442 C.D. 2011. PER CURIAM ORDER
NOW, June 23, 2012, it is hereby ORDERED as follows:
1. The January 27, 2012 Bond Order of the Court of Common Pleas of Montgomery County, entered in the above-captioned matter, is AFFIRMED. 2. The January 27, 2012 Subpoena Order of the Court of Common Pleas of Montgomery County, entered in the above-captioned matter, is AFFIRMED. 3. The Application to Quash Appeal at Docket No. 1442 C.D. 2011 is GRANTED and the appeal is QUASHED.