Commonwealth Court: Neighbor has no right to intervene in zoning action

By Nicholas Malfitano | Aug 31, 2015

Commonwealth Court Of Pennsylvania Judge James Gardner Colins  

PHILADELPHIA – According to an Aug. 21 ruling from the Commonwealth Court of Pennsylvania, a neighbor seeking to intervene in a township zoning hearing board decision has no right to do so under the law.

The Commonwealth Court found appellant Lorraine Sulla lacked any standing to appeal a July 9, 2014, decision of the Lackawanna County Court of Common Pleas, which upheld the denial of a zoning variance to Sulla’s neighbors, Joan and William Lescinsky of Covington Township, by the Township of Covington Zoning Hearing Board.

The matter came before judges James Gardner Colins, Patricia A. McCullough and Bernard L. McGinley of the Court, with Colins representing the Court by authoring the majority opinion.

“The rules governing intervention in land use appeals have been strictly applied by this Court, including instances where the party seeking to intervene participated as a party at the township level, and instances where the party seeking to intervene is directly involved in the action,” Colins said. “Because Sulla did not file a Petition to Intervene before the Trial Court, we quash the appeal.”

Colins referred both to Section 1004-A of the Municipalities Planning Code (MPC), where “a municipality and any owner or tenant of the property directly involved in the action appealed from may intervene as of course by filing a notice of intervention within 30 days following the filing of the land use appeal."

He also referred to the Pennsylvania Rules of Civil Procedure (PRCP), which govern all other intervention processes – such as Sulla’s, who is an adjoining property owner to the Lescinskys and was not intervening on their behalf or on that of the municipality.

Colins noted Sulla’s intervention was improper under the law, as she had filed a notice of intervention with the Lackawanna County Court of Common Pleas but not a petition for intervention.

“Sulla filed a Notice to Intervene in the Trial Court on Dec. 2, 2013. Sulla did not file a Petition to Intervene during the pendency of the action below. Therefore, Sulla was not a party to the action below and is without standing to bring an appeal of the July 9, 2014 order of the Trial Court,” Colins said.

Colins pointed out Sulla was allowed to engage in proceedings at the trial court level under the impression that she had properly intervened in the case, when in fact she had not – a result he termed “highly technical and deeply troubling."

Colins went to on to say that improper procedure of this nature regarding land use litigation has reached the Commonwealth Court “repeatedly" and stressed the importance of litigants having knowledge of civil procedure and local laws before entering the courtroom.

“Unless you are a municipality or an owner or tenant of the property directly involved in the action appealed from, you must file a petition to intervene in the form of and verified in the manner of a plaintiff’s initial pleading in a civil action to participate as an intervener in a land use appeal,” Colins.

McCullough noted the Township of Covington Zoning Hearing Board issued an order on Sept. 25, 2013, upholding six different enforcement notices against the Lescinskys’ property and an Oct. 4, 2013, order denying their variance request. Ultimately, McCullough’s additional and separate view on the matter concurred with that of her colleagues.

“Our law requires the objecting, adjoining landowner to file a petition to intervene and be granted intervener status in order to participate at the trial court level,” McCullough said.

The appellant is represented by Michael R. Mey in Scranton.

The appellee is represented by Township Solicitor Brian Yeager in Covington and Myles P. MacAliney of MacAliney & MacAliney, in Pittston.

The Commonwealth Court of Pennsylvania case 1746 C.D. 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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