M.B. Selig v. North Whitehall ZHB ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael B. Selig, :
Appellant :
:
v. : No. 663 C.D. 2020
: SUBMITTED: September 18, 2020
North Whitehall Zoning Hearing :
Board :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: November 13, 2020
Appellant Michael B. Selig (Selig) appeals from the Court of Common Pleas
of Lehigh County’s (Common Pleas) June 3, 2020 order sustaining the joint
Preliminary Objections of North Whitehall Township Zoning Hearing Board
(Board), Richard Benjamin, and Eugene Wolfgang to Selig’s “Complaint for
Compensatory Damages” (Complaint). Upon review, we quash Selig’s appeal.
I. Facts and Procedural History
The events preceding this appeal are fairly convoluted, but have been cogently
summarized by the Honorable President Judge Edward Reibman:
On or about June 7, 2012, Selig, through Aerotierra, LLC,
a limited[]liability company wholly owned by him, filed
an application with the Board (the “2012 Application”) to
establish a heliport on property at 5471 Route 309,
Schnecksville, North Whitehall Township, Lehigh County
(the “Property”). The Board denied the request on
February 13, 2013 (the “Board’s 2013 Decision”). Selig’s
appeal to [C]ommon [P]leas was denied by order of
January 8, 2014, on the basis that he lacked standing to
prosecute the appeal because he was not the titled owner
of the Property. Selig v. The Zoning Hearing Board of
North Whitehall Twp., Lehigh County No. 2013-C-0643
(Johnson, J.). The Commonwealth Court affirmed on July
22, 2014. Selig v. The Zoning Hearing Bd of North
Whitehall Twp., . . . (Pa. Cmwlth. [No. 180 C.D. 2014,
filed] July 22, 2014).
Selig transferred title to the Property into his own name on
April 4, 2014. He filed an application with the Board on
June 13, 2014, for a special exception to use the Property
as a heliport and a revised application on July 15, 2014
(the “2014 Application”).1
1
Other than the change in title to the Property from
Aerotierra to Selig, the only difference between the 2012 and
2014 applications was that Selig would use the heliport only
for private use and refrain from engaging in flights involving
organ donation.
On April 23, 2015, Selig requested the recusal of
Benjamin and Wolfgang. They refused to recuse
themselves and, after a hearing on the issue of recusal on
June 17, 2015, the Board refused to require they do so.
Rather than proceed on the merits of his application, Selig
appealed the Board’s decision on the issue of recusal to
[C]ommon [P]leas. The court dismissed the appeal as
interlocutory, Selig v. North Whitehall Twp. Zoning
Hearing Bd., Lehigh County No. 2015-C-2387; the
Commonwealth Court affirmed; and the Supreme Court
denied Selig’s application for appeal. Selig v. [Zoning
Hearing Bd.] of N. Whitehall Twp., 164 A.3d 647 (Pa.
Cmwlth. Ct. 2016), appeal denied, 169 A.3 1079 (Pa.
2017).
In the meantime, Selig continued to litigate on two
additional fronts. He filed a petition with [C]ommon
[P]leas on November 12, 2015, seeking permission to
appeal nunc pro tunc the Board’s 2013 decision and
[Common Pleas’] January 8, 2014 decision. That petition
was dismissed on November 16, 2015, (Johnson, J.), and
the Commonwealth Court affirmed on August 8, 2016,
Selig v. The Zoning Hearing Bd. of North Whitehall Twp.,
. . . (Pa. Cmwlth. [No. 2600 C.D. 2015, filed] August 8,
2016). He also sued twice in federal court, where his
efforts were equally unavailing. Selig v. N. Whitehall Twp.
Zoning Hearing Bd., No. 5-14-cv-05303 (E.D.Pa.), aff’d,
2
653 Fed. App[’]x. 155 (3d Cir. 2016), and Selig v. N.
Whitehall Twp. Zoning Hearing Bd., . . . (E.D.Pa. [No. 17-
4504, filed] April 24, 2018)[, 2018 WL 1942510].
The Board held hearings on June 17, and November 9 and
29, 2017, on the merits of Selig’s 2014 Application. He
again requested the recusal of Messrs. Benjamin and
Wolfgang. The Board orally denied Selig’s application
following the November 29 hearing. Selig appealed to
[C]ommon [P]leas, which quashed his appeal as
premature. Selig v. North Whitehall Twp. Zoning Hearing
Bd., Lehigh County No. 2017-C-3830 (Varricchio, J.). The
Board confirmed its decision in writing on January 8,
2018. Selig appealed. Selig v. North Whitehall Township
ZHB, Lehigh County No. 2018-C-0259.2
2
Selig sent a two-page document by facsimile to the court
on October 1, 2018, noting a hearing “occurred on June 1,
2018, four months ago but a decision has yet to be rendered,”
and reiterating many of his claims of error. It is ironic that
Selig would complain about any delay. In June 2015, he
refused to proceed on the merits of his appeal and, instead,
took an interlocutory appeal to the Commonwealth Court
[regarding] the failure of Benjamin and Wolfgang to recuse
themselves and the Board’s failure to order they be
disqualified. His appeals to the Commonwealth Court, the
Pennsylvania Supreme Court, and the various actions he
maintained in the federal courts were all adjudicated against
him. Following those appeals, and before a decision was
rendered in Selig’s most recent federal court case, hearings
were held by the Board in November 2017. His appeal from
the oral decision of the Board was dismissed as premature.
His actions delayed resolution of the merits of his case by
2½ years. In addition, his ex parte communication with the
court was wholly improper. In fact, Selig had been instructed
to file pleadings with [Common Pleas’] Clerk and was
admonished not to send any mail, facsimile or email directly
to chambers. See Selig v. The Zoning Hearing Bd. of N.
Whitehall Twp., No, 2013-C-0643, order of October 14,
2013 (Johnson, J.).
By order of November 21, 2018, [Common Pleas]
(Reibman, P.J.) reversed the Board’s January 8, 2018,
decision denying Selig’s special use and variance
application. [Common Pleas] remanded the matter to the
3
Board with instructions to treat Selig’s application to
establish a heliport on the Property as a permitted use by
special exception in his zoning district. Id.
On remand, the Board apparently conducted a hearing on
March 14, 2019, after which it imposed certain conditions
on approving Selig’s application. Selig claimed he had not
received notice of that hearing, and the Board could not
show that he had. On March 30, 2019[,] the Board was
ordered to conduct a de novo hearing on conditions after
serving Selig with notice. Selig filed a petition for
damages in the zoning appeal matter on April 2, 2019. It
was dismissed on May 15, 2020.
Selig commenced the instant action against the Board,
Benjamin[,] and Wolfgang on September 24, 2019, with
the filing of a 120[-]paragraph “Complaint for
Compensatory Damages” alleging violations of the Fifth
and Fourteenth Amendments to the United States
Constitution, [U.S. CONST. amends. V and XIV,] (Count
I) and . . . 42 U.S.C. §§1983 and 1985 (Count II), and
claims of negligence and recklessness (Count III),
oppression and/or deliberate indifference to the law
(Count IV) and damages under . . . 42 Pa. C.S.[] §8542 and
attorney’s fees (Count V).
Common Pleas op., 6/3/20, at 2-4.
On October 14, 2019, the Board, Benjamin, and Wolfgang filed Preliminary
Objections to the Complaint. They argued that the Complaint should be dismissed
with prejudice on the bases of demurrer, governmental immunity, and res judicata.
They also challenged the sufficiency of the Complaint’s service and moved to strike
Selig’s request for attorney’s fees. On November 12, 2019, Selig replied in
opposition. On March 30, 2020, before Common Pleas ruled on the Preliminary
Objections, Selig filed a Motion for Summary Judgment, to which the Board,
Benjamin, and Wolfgang responded on April 15, 2020.
On June 3, 2020, Common Pleas sustained the Board’s Benjamin’s, and
Wolfgang’s joint Preliminary Objections and dismissed Selig’s Complaint. In the
4
opinion attached to its order, Common Pleas explained that Counts I and II of the
Complaint were identical to claims adjudicated in Selig’s federal court actions and,
thus, were barred by res judicata. Id. at 6-7. In addition, Common Pleas concluded
that, even if res judicata did not apply, Selig did not, and could not, state viable
claims under federal law that his civil and constitutional rights had been violated. Id.
at 7-10. Common Pleas also determined that Selig’s Pennsylvania tort law claims in
Count III were barred by governmental immunity, as well as that Count IV was
essentially duplicative of the federal civil rights claims he had raised in Counts I and
II. Id. at 10-13. Further, Common Pleas ruled that the damages sought by Selig in
Count V of his Complaint did not fall within any of the statutory exceptions to
governmental immunity and were thus not legally recoverable. Id. at 14. Finally,
Common Pleas held that Selig was not entitled to attorney’s fees, because he was
pursuing his lawsuit in a pro se manner, and he could not be awarded punitive
damages, as they were unavailable in civil rights actions against municipalities and
government employees operating in their official capacities. Id.
Common Pleas also issued another order on the same day, through which it
dismissed Selig’s Motion for Summary Judgment.
Selig appealed to this Court from Common Pleas’ order sustaining the
aforementioned joint Preliminary Objections.
II. Discussion
Selig has submitted a markedly deficient appellate brief, which warrants
outright quashal of his appeal.
A. Preliminary Objections
“[W]e quash appeals when substantially defective briefs impede us from
conducting meaningful appellate review.” Grosskopf v. Workmen’s Compensation
5
Appeal Bd. (Kuhns Mkt.), 657 A.2d 124, 125 (Pa. Cmwlth. 1995) (internal footnote
omitted). “[I]t is not the Court’s role to become [an] appellant’s counsel, and when
[an] appellant’s brief is inadequate to present specific issues for review, the Court
will not consider the merits of the case[.]” Rapid Pallet v. Unemployment Comp. Bd.
of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998) (citing Grosskopf, 657 A.2d 124).
Here, Selig has abandoned, post-appeal, his challenge to Common Pleas’ June
3, 2020 order which sustained the Board’s, Benjamin’s, and Wolfgang’s joint
Preliminary Objections and dismissed his Complaint. In his appellate brief, Selig
makes no mention of that order. Instead, he explicitly states that he is instead
attacking Common Pleas’ dismissal of his Motion for Summary Judgment. See
Selig’s Br. at 6-7 (asserting that the order being appealed is the June 3, 2020 order
dismissing Selig’s Motion for Summary Judgment); id. at 8 (“This appeal addresses
the same [C]ommon [P]leas court that rightly reversed the [Board’s] denial decision,
found them derestricts [sic] of their authority, but denied [Selig’s] petition for
Summary Judgement [sic] for damages when [Common Pleas] never conducted any
trials to dispute [sic] the case.”). Consequently, we take Selig at his word that he no
longer disputes the propriety of Common Pleas’ decision to sustain the Preliminary
Objections.
We recognize that a brief’s technical deficiencies may not warrant outright
quashal of the underlying appeal if they “do[] not preclude this Court from
discerning [an appellant’s] arguments . . . or from performing meaningful review of
the issues on appeal[.]” Spring Creek Mgmt., L.P. v. Dep’t of Pub. Welfare, 45 A.3d
474, 482 n.10 (Pa. Cmwlth. 2012). Our review efforts are impeded, however, by the
fact that “[Selig’s] brief is [largely] a hotchpotch consisting of ‘general rambling
discourse’ rife with invective, innuendo and insult[.]” Wicker v. Civil Serv. Comm’n,
6
460 A.2d 407, 409 (Pa. Cmwlth. 1983).1 Moreover, Selig does not address Common
Pleas’ conclusion that his federal law-based civil rights claims are barred by res
judicata.
To the extent we could theoretically disregard some of the technical
deficiencies of Selig’s Brief, he has also failed to adequately counter Common Pleas’
conclusion that his state law-based claims are barred by governmental immunity.2
1
For example, Selig writes that:
Had the [Board] properly adjudicated in an unbiased manner the first
time around, this current case under different conditions would not
have been filed or appealed, became obfuscated in [Common Pleas].
The case would not have been propagated for years, unresolved,
stirring the pot with the townspeople that has exposed [Selig] (a
Cardiologist and Internist devoted to the wellbeing of the
community for 30 years and Commercial Pilot, [Federal Aviation
Administration] Certified Helicopter Flight Instructor and Certified
Airframe/Powerplant (A&P mechanic)[)] to defamation, slander,
public scorn, discrimination, stalking, burglary and made him a
Victim of Terrorism, Death Threats to his life and Hate Crimes.
Due process and conflict of interest disclosures are the very first
order of business to be established in any judicial system, at any
level and Too Important of a Matter to not address at his [sic] time,
in order to circumvent the corruption that has occurred in the
subjective Peyton Place, soap opera case scenario of the prior
case.
Selig’s Br. at 18-19 (emphasis in original).
2
Pa. R.C.P. No. 1030(3) provides that immunity from suit is an
affirmative defense that must be raised in a responsive pleading
under the heading of “new matter.” Id. However, this Court has
created limited exceptions to this rule. First, a party may raise the
affirmative defense of immunity as a preliminary objection where it
is clearly applicable on the face of the complaint; that is, that a cause
of action is made against a governmental body and it is apparent on
the face of the pleading that the cause of action does not fall within
any of the exceptions to governmental immunity. Wurth v. City of
Philadelphia, . . . 584 A.2d 403, 407 (Pa. Cmwlth. 1990) (en banc).
(Footnote continued on next page…)
7
Instead, Selig misquotes section 8542 of what is known as the Political Subdivision
Tort Claims Act (Tort Claims Act), 42 Pa. C.S. § 8542, which sets forth exceptions
to governmental immunity,3 and confusingly references 42 Pa. C.S. § 5524(7), which
Second, where a party erroneously asserts an immunity defense in a
preliminary objection, the failure of the opposing party to file a
preliminary objection to the defective preliminary objection in the
nature of a motion to strike for lack of conformity to law waives the
procedural defect and allows the trial court to rule on the immunity
defense. Id.; see Gallagher v. City of Philadelphia, . . . 597 A.2d
747, 750 (Pa. Cmwlth. 1991).
Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1021-22 (Pa. Cmwlth. 2014). Here,
governmental immunity’s applicability to this matter is apparent on the face of Selig’s Complaint,
and Selig did not challenge the procedurally premature invocation of this affirmative defense.
3
Selig writes:
In accordance to [sic] 42 Pa. C.S. § 8542,
A local governmental agency will be liable for damages on account
of injury to a person or property if both of the following conditions
are met: (1) damages would be recoverable under common law or a
statute creating a cause of action; and (2) the injury was caused by
the negligent acts of the local agency or employee thereof acting
within the scope of their office or duties.
Selig’s Br. at 21-22. In reality, the relevant section of this statute states:
Liability imposed.--A local agency shall be liable for damages on
account of an injury to a person or property within the limits set forth
in this subchapter if both of the following conditions are satisfied
and the injury occurs as a result of one of the acts set forth in
subsection (b):
(1) The damages would be recoverable under common law
or a statute creating a cause of action if the injury were
caused by a person not having available a defense under
section 8541 (relating to governmental immunity
generally) or section 8546 (relating to defense of official
immunity); and
(2) The injury was caused by the negligent acts of the local
agency or an employee thereof acting within the scope of his
(Footnote continued on next page…)
8
establishes a two-year statute of limitations for certain civil actions and has nothing
whatsoever to do with governmental immunity.4 See Selig’s Br. at 21-24. Selig also
appears to accuse Benjamin and Wolfgang of unlawful conduct that, in Selig’s view,
would authorize damages for willful misconduct against the Board and these
individuals under section 8550 of the Tort Claims Act, 42 Pa. C.S. § 8550.5 See
Selig’s Br. at 21-24.
It is well-settled that where a plaintiff has averred willful
misconduct on the part of local agency employees, . . . 42
office or duties with respect to one of the categories listed in
subsection (b). As used in this paragraph, “negligent acts”
shall not include acts or conduct which constitutes a crime,
actual fraud, actual malice or willful misconduct.
42 Pa. C.S. § 8542(a) (emphasis added).
4
This statute establishes that:
The following actions and proceedings must be commenced within
two years:
....
(7) Any other action or proceeding to recover damages for
injury to person or property which is founded on negligent,
intentional, or otherwise tortious conduct or any other action
or proceeding sounding in trespass, including deceit or fraud,
except an action or proceeding subject to another limitation
specified in this subchapter.
42 Pa. C.S. § 5524(7).
5
This statute provides:
In any action against a local agency or employee thereof for
damages on account of an injury caused by the act of the employee
in which it is judicially determined that the act of the employee
caused the injury and that such act constituted a crime, actual fraud,
actual malice or willful misconduct, the provisions of sections 8545
(relating to official liability generally), 8546 (relating to defense of
official immunity), 8548 (relating to indemnity) and 8549 (relating
to limitation on damages) shall not apply.
42 Pa. C.S. § 8550.
9
Pa. C.S. § 8542(a)(2)[] bars recovery from the local
agency because liability may be imposed on a local agency
only for negligent acts. City of Philadelphia v. Glim, . . .
613 A.2d 613, 617 (Pa. Cmwlth. 1992); City of
Philadelphia v. Brown, . . . 618 A.2d 1236, 1238-39 (Pa.
Cmwlth. 1992). In addition, . . . 42 Pa. C.S. § 8550[] does
not create an exception to [42 Pa. C.S. §] 8542(a)(2), and,
as a result, a local agency may not be held liable for the
willful misconduct of its employees. Glim, 613 A.2d at
617; Brown, 618 A.2d at 1238-39. In order to overcome
the defense of governmental immunity, a plaintiff’s claims
against a local agency must sound in negligence and must
fall within one of the eight enumerated exceptions to local
agency immunity set forth in . . . 42 Pa. C.S. § 8542(b).
Glim, 613 A.2d at 616-17.
Orange Stones, 87 A.3d at 1022. However, Selig does not identify the exception to
such immunity under which the Board could be liable, and he cannot legally pursue
his willful misconduct claim against the Board itself. Thus, Selig has failed to
articulate on appeal how Common Pleas erred by ruling that governmental immunity
bars Selig’s state law-based claims against the Board.6
6
To the extent that Selig argues in his brief that Benjamin and Wolfgang are not
individually immune from his willful misconduct claims, we agree with Common Pleas that the
factual circumstances of this matter, as pled by Selig, do not satisfy the requirements of 42 Pa.
C.S. § 8550:
Selig does not allege [their] conduct was criminal. . . . [In addition,]
Selig failed to plead facts to support his claim [they] engaged in
fraudulent acts. He has not pled facts to support a cause of action for
malice, i.e., intentionally doing a wrongful act without lawful or
justifiable excuse. While Selig contends [they] ignored the law and
disagreed with him, decisions by local agencies, including decisions
made by individual board members, even if wrong, do not prove
actual malice, See Swartz v. Masloff, 437 A.2d 472, 47[5] (Pa.
[Cmwlth.] 1981). Nor has Selig pled facts to support a cause of
action for willful misconduct, which, for purposes of § 8550, means
“willful misconduct aforethought and is synonymous with
‘intentional tort.’” Orange Stones[,] 87 A.3d [at] 1023. . . . More
specifically, willful misconduct occurs when the actor desired to
(Footnote continued on next page…)
10
III. Conclusion
Accordingly, on the basis for the foregoing analysis, we quash Selig’s appeal
due to the insurmountable deficiencies of his appellate brief.
__________________________________
ELLEN CEISLER, Judge
bring about the result that followed, or at least that one was aware
that it was substantially certain to ensue. Id. Selig claims the[ir]
actions . . . resulted in the wrong decision because they failed to
accept his legal arguments and apply the law he gave them. Even if
true, the averred actions do not constitute, nor has Dr. Selig properly
pled, facts which constitute willful misconduct or intentional tort.
Common Pleas op. at 12.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael B. Selig, :
Appellant :
:
v. : No. 663 C.D. 2020
:
North Whitehall Zoning Hearing :
Board :
ORDER
AND NOW, this 13th day of November, 2020, Appellant Michael B. Selig’s
appeal is QUASHED.
__________________________________
ELLEN CEISLER, Judge