M.B. Selig v. The ZHB of North Whitehall Twp. ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael B. Selig, :
: No. 2171 C.D. 2015
Appellant : Submitted: April 1, 2016
:
v. :
:
The Zoning Hearing Board of :
North Whitehall Township :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: December 2, 2016
Michael B. Selig appeals, pro se, from the October 14, 2015, October
29, 2015, and November 4, 2015, orders of the Court of Common Pleas of Lehigh
County (trial court) that dismissed Selig’s appeal as interlocutory, denied Selig’s
petition for reconsideration, and denied Selig’s petition for permission to appeal
pursuant to section 702(b) of the Judicial Code, 42 Pa. C.S. §702(b), as untimely. We
affirm the October 14, and November 4, 2015, orders of the trial court and quash
Selig’s appeal of the trial court’s October 29, 2015, order.
.
On April 4, 2014, Selig purchased property located at 5471 Pennsylvania
Route 309 in Schnecksville (Property). (ZHB’s Findings of Fact, Nos. 1-2.) The
Property is in the AR-Agricultural Rural-Residential District. (ZHB’s History, No.
1.) On June 13, 2014, Selig filed an application with the Zoning Hearing Board
(ZHB) of North Whitehall Township (Township), requesting a special exception to
use the Property as an airport/heliport under section 306.B of the North Whitehall
Township Zoning Ordinance (Ordinance). (ZHB’s History, No. 1; ZHB’s Findings
of Fact, Nos. 1, 6.) On July 15, 2014, Selig filed a revised application. (ZHB’s
Findings of Fact, No. 6.) On April 23, 2015, Selig filed a “Pre-Hearing
Memorandum of Law Supporting: the recusal of ZHB members-chairman, Richard
Benjamin and vice-chairman, Eugene Wolfgang.” (Id., No. 7.)
On June 17, 2015, the ZHB held a hearing to consider the recusal of
Benjamin and Wolfgang. (Id., No. 8.) Selig stated that Benjamin should recuse
because he lives across the street from the Property and failed to disclose that fact
during prior litigation. (Id., Nos. 8-9.) Selig stated that Wolfgang should recuse
because one of his prior decisions was based on personal or political considerations
rather than the applicable law. (Id.) Both parties refused to recuse. (Id., No. 10.)
The ZHB verbally denied Selig’s recusal request. (Id.) Thereafter, Selig refused to
present the merits of his case or address two unrelated, pre-hearing memoranda
issues, but indicated that he was not withdrawing his case. (Id., No. 11.) On July 20,
2015, the ZHB issued a written decision reaffirming its decision at the hearing to
deny Selig’s recusal request.1
On July 30, 2015, Selig appealed to the trial court. On October 2, 2015,
the trial court, sua sponte, issued a rule to show cause why Selig’s appeal should not
1
The ZHB did not address the merits of Selig’s application for a special exception to use the
Property as an airport/heliport.
2
be quashed as interlocutory. Citing Rohm and Haas Company v. Lin, 992 A.2d 132,
149 (Pa. Super. 2010), the trial court noted that orders involving motions for recusal
are interlocutory and may not be appealed prior to the entry of a final order resolving
all of the claims.
On October 14, 2015, the trial court heard argument on the rule and
dismissed Selig’s appeal as interlocutory. On October 26, 2015, Selig filed a petition
for reconsideration, which the trial court denied on October 29, 2015.
On November 2, 2015, Selig filed a petition for permission to appeal the
ZHB’s July 20, 2015, interlocutory order pursuant to 42 Pa. C.S. §702(b), which the
trial court denied on November 4, 2015, as untimely. The trial court noted that it had
previously dismissed as interlocutory an appeal by Selig from the July 20, 2015, ZHB
order. (Trial Ct. Op., 11/4/15, at 1 n.1.) On November 6, 2015, Selig appealed the
October 14, 2015, October 29, 2015, and November 4, 2015, orders to this court.
Initially, we address the trial court’s orders of October 14, 2015, and
October 29, 2015, dismissing Selig’s “Interlocutory Zoning Appeal 2014-3” as
interlocutory and denying reconsideration.
We first address the trial court’s jurisdiction in this matter. Pursuant to
42 Pa. C.S. §933(a)(2), the trial court “shall have jurisdiction of appeals from final
orders of government agencies . . . under Subchapter B of Chapter 7 of Title 2
(relating to judicial review of local agency action) or otherwise.” (Emphasis added.)
3
A trial court also has jurisdiction to hear appeals from interlocutory
orders of local agencies. In accordance with 42 Pa. C.S. §701(a), “[t]he provisions of
this subchapter shall apply to all courts of this Commonwealth, including the courts
of common pleas when sitting as appellate courts.” Pursuant to 42 Pa. C.S. §702(b),
interlocutory appeals may be taken by permission when:
a court or other government unit, in making an interlocutory
order in a matter in which its final order would be within
the jurisdiction of an appellate court, shall be of the opinion
that such order involves a controlling question of law as to
which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially
advance the ultimate termination of the matter, it shall so
state in such order. The appellate court may thereupon, in
its discretion, permit an appeal to be taken from such
interlocutory order.
(Emphasis added.) The Judicial Code defines a government unit as “[t]he General
Assembly and its officers and agencies, any government agency or any court or other
officer or agency of the unified judicial system.” 42 Pa. C.S. §102 (emphasis added).
A government agency is “[a]ny Commonwealth agency or any political subdivision
or municipal or other local authority, or any officer or agency of any such political
subdivision or local authority.” Id. Thus, 42 Pa. C.S. §§701(a) and 702(b) permit the
trial court’s review of an interlocutory order of a local agency.
Determining whether a decision is final and appealable is within the
sound discretion of the trial court. See Thompson v. Zoning Hearing Board of
Horsham Township, 963 A.2d 622, 624 n.3 (Pa. Cmwlth. 2009) (stating that 42 Pa.
C.S. §702(b) provides an appellate court, here the trial court, with the discretion to
hear interlocutory appeals). We review the trial court’s dismissal of Selig’s motion to
4
recuse as interlocutory for an abuse of discretion. Id. The trial court determined that
the ZHB members’ refusal to recuse themselves and the ZHB’s collective decision
not to require recusal was preserved for purposes of review following entry of a final
order by the ZHB. However, Selig stopped the hearing, refused to present the merits,
and appealed this part of the case to the trial court prior to the end of the hearing and
issuance of a final order.2 Thus, the trial court determined that Selig’s action was
premature and, if Selig received an unsatisfactory result after his hearing on the
merits, the recusal issue was properly preserved. (Tr. Ct. Op., 11/19/15, at 5-6.) The
trial court did not abuse its discretion in dismissing Selig’s appeal as interlocutory.
Selig next argues that the trial court erred in denying his petition for
reconsideration. However, a trial court’s refusal to grant reconsideration of a final
decree is not reviewable on appeal. Thorn v. Newman, 538 A.2d 105, 108 (Pa.
Cmwlth. 1988). Thus, we must quash Selig’s petition for reconsideration.3
Selig next argues that the trial court erred in denying his November 2,
2015, request to appeal the ZHB’s July 20, 2015, interlocutory order.4 On November
2, 2015, Selig sought permission to appeal pursuant to 42 Pa. C.S. §702(b).
2
We note that an order denying a motion to recuse is interlocutory. Rohm and Haas
Company, 992 A.2d at 149.
3
We also note that an interlocutory order is not appealable. Thorn, 538 A.2d at 107.
4
The merits of Selig’s case are not before this court because the ZHB did not address the
merits at the June 17, 2015, hearing or in its July 20, 2015, opinion.
5
Section 1002-A(a) of the Pennsylvania Municipalities Planning Code
(MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §11002-A(a), added by
the Act of December 21, 1988, P.L. 1329,5 provides that “[a]ll appeals from all land
use decisions rendered pursuant to Article IX shall be taken to the court of common
pleas . . . within 30 days after entry of the decision.”6 Selig filed his second request
well beyond 30 days after the entry of the interlocutory order. Thus, the trial court
correctly denied Selig’s November 6, 2015, request for permission to appeal as
untimely.
Further, to the extent that Selig requests mandamus relief to compel
Benjamin and Wolfgang to recuse, we deny his request. “Mandamus is an
extraordinary remedy used to compel the performance of a ministerial act or
mandatory duty.” Flora v. Luzerne County, 103 A.3d 125, 137 (Pa. Cmwlth. 2014).
5
The Township’s Ordinance permits appeals to be taken to the trial court pursuant to the
MPC. (Ordinance, Art. I, § 113.)
6
The trial court incorrectly applied Pa. R.A.P. 1311(b) in determining that Selig’s request
was untimely. Pa. R.A.P. 1311(b) provides that permission to appeal an interlocutory order is
“sought by filing a petition for permission to appeal with . . . the appellate court within 30 days after
entry of such order . . . [by the] governmental unit.” However, the MPC also provides for a 30-day
appeal period, so the trial court’s error was de minimis.
We note that the Pennsylvania Rules of Appellate Procedure do not apply to the trial court
when it is acting as an appellate court, but pursuant to Pa. R.A.P. 103, only “govern[s the] practice
and procedure in the Supreme Court, the Superior Court and the Commonwealth Court,” unless the
county has a rule adopting the Pennsylvania Rules of Appellate Procedure. King v. City of
Philadelphia Bureau of Administrative Adjudication, 102 A.3d 1073, 1076 (Pa. Cmwlth. 2014).
Our research does not indicate that Lehigh County has adopted the Pennsylvania Rules of Appellate
Procedure. We further note that the trial court, while “acting as an appellate court, may look to the
Pennsylvania Rules of Appellate Procedure for guidance and ‘such points of procedure are best left
to the sound discretion of the trial court.’” Id. at 1077 (citation omitted).
6
An action in mandamus requires an actor to have “a non[-]discretionary duty to
perform a particular act.” Id. This case does not involve a non-discretionary duty.
Whether Benjamin and Wolfgang should have recused is discretionary, as is the trial
court’s decision to permit an appeal from an interlocutory order. Thus, mandamus is
improper.
Selig also asks this court to correct errors in the trial court’s Pa. R.A.P.
1925(a) opinion. After review, however, we find that the alleged errors do not
pertain to the matter before this court but relate to Selig’s prior litigations.
Accordingly, we affirm the trial court’s orders of October 14, 2015, and
November 4, 2015, and quash Selig’s appeal of the trial court’s order of October 29,
2015.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael B. Selig, :
: No. 2171 C.D. 2015
Appellant :
:
v. :
:
The Zoning Hearing Board of :
North Whitehall Township :
ORDER
AND NOW, this 2nd day of December, 2016, we hereby affirm the
October 14, and November 4, 2015, orders of the Court of Common Pleas of Lehigh
County and quash Michael B. Selig’s appeal of the trial court’s October 29, 2015,
order denying Selig’s petition for reconsideration.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge