J.B.R.C. of Pennsylvania, LLC v. City of Carbondale ZHB and Various Residential Property Owners ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
:
J.B.R.C. of Pennsylvania, LLC :
: No. 2344 C.D. 2014
v. : Submitted: March 7, 2016
:
City of Carbondale :
Zoning Hearing Board :
and Various Residential :
Property Owners, :
:
Appellants :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: April 1, 2016
Various Residential Property Owners (Objectors) appeal from the
November 21, 2014, order of the Court of Common Pleas of Lackawanna County
(trial court), which (1) reversed the decision of the City of Carbondale Zoning
Hearing Board (ZHB) to deny J.B.R.C. of Pennsylvania, LLC’s (JBRC) application
for a variance and (2) denied Objectors’ petition to intervene in the case. For the
reasons that follow, we quash Objectors’ appeal.
Initially, both the ZHB and Objectors appealed from the trial court’s
November 21, 2014, order. The only issue raised in the ZHB’s and Objectors’ joint
brief is whether the trial court erred in reversing the ZHB’s denial of JBRC’s
application for a variance. The brief does not address the trial court’s denial of
Objectors’ petition to intervene.
After the filing of the parties’ briefs, the ZHB filed a praecipe to
discontinue the appeal. On January 13, 2016, this court entered an order
discontinuing the appeal. Thereafter, Objectors filed an application to reinstate the
appeal. By order dated January 26, 2016, this court reinstated the appeal as to
Objectors only.
Objectors are now the only appellants in the case. However, because
Objectors failed to challenge the denial of their petition to intervene in their brief,
they have waived any such challenge. See Oliver v. Unemployment Compensation
Board of Review, 5 A.3d 432, 440 (Pa. Cmwlth. 2010) (en banc). Moreover, because
the trial court denied Objectors’ request for intervenor status, Objectors lack standing
to appeal from the trial court’s reversal of the ZHB’s decision. See In re Barnes
Foundation, 871 A.2d 792, 794-95 (Pa. 2005).
Accordingly, we quash Objectors’ appeal.1
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
1
On March 11, 2016, after this matter was submitted for consideration on the briefs,
Objectors filed an emergency application to supplement their brief to address the trial court’s denial
of their petition to intervene. We note that Objectors had the opportunity to request such relief well
before the submission date of this matter, as this court reinstated their appeal on January 26, 2016.
In their emergency application, Objectors stated that they “fully intended to address the intervention
issue at Oral Argument on Monday[,] March 7, 2016, but were unable to do so due to cancellation
thereof by the Court.” (Objectors’ Emergency Appl. ¶ 14.) However, as discussed above,
Objectors would have been precluded from presenting oral argument on the intervention issue
because they failed to brief that issue before argument. Therefore, we denied Objectors’ emergency
application on March 22, 2016.
2
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
:
J.B.R.C. of Pennsylvania, LLC :
: No. 2344 C.D. 2014
v. :
:
City of Carbondale :
Zoning Hearing Board :
and Various Residential :
Property Owners, :
:
Appellants :
ORDER
AND NOW, this 1st day of April, 2016, we hereby quash the appeal of
Various Residential Property Owners from the November 21, 2014, order of the
Court of Common Pleas of Lackawanna County.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge