IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Keith Dougherty, : Appellant : : v. : : Jonathan Snyder : Zoning Enforcement Officer : N. Hopewell Twp. York Co. : Board of Supervisors : Dustin Grove, William Tollinger : No C.D and Robert Barclay : Submitted: January 16, 2009 OPINION NOT REPORTED MEMORANDUM OPINION PER CURIAM FILED: March 6, 2009 Keith Dougherty (Dougherty) appeals from the orders of the Court of Common Pleas of York County (common pleas court) that sustained the preliminary objections of Jonathon Snyder (Snyder), North Hopewell Township, and the North Hopewell Township Board of Supervisors (collectively, the Township) and dismissed Dougherty s amended complaint in mandamus. On May 14, 2008, Dougherty, appearing pro se, filed an amended complaint in mandamus against Snyder and the Township and alleged: 1 3. On or about April 2004 North Hopewell Township opted in as it relates to PA UCC Act 45 PA Uniform Construction Code (hereafter Act ). 1 The complaint consisted of twenty three paragraphs and eight pages. It contained irrelevant paragraphs, fragmented sentences and random references to rules of law and statute. See Amended Complaint in Mandamus, May 14, 2008, Paragraphs 1-23 at 1-8; Reproduced Record (R.R.) at 39a-46a.

2 4. Sometime thereafter the board properly hired Jonathan Snyder to act as the entity charged with the enforcement of the technical provisions of the ACT. 5. The board thereafter adopted a hands off approach in violation of the ACT as it pertains to the obligations of the administerial [sic] duties To assure officials charged with administration and enforcement of the technical provisions of this ACT are adequately trained and supervised. 10. Further it was announced there was no longer a valid permit as it had expired (under the old building code permits had a stated duration of 12 months unless a written request was submitted prior to the expiration and petitioner had provided a written request which was ignored as not being from the home owner). 11. Upon review of the ACT it was revealed permits are required to last 5 years and therefore Snyder s actions were in violation of the Act identified as preempting the old building code. 12. On or about 11/19/2007 a petition for writ of mandamus was entered in the commonwealth court and hand delivered to Snyder and the Township Secretary. 17. The matter has since been transferred to York County Common Pleas and preliminary objections (based on a lack of return of service was granted in violation of rule 405 which is unnecessary if original process is accepted). 18. Appeal of the order in question (without prejudice against re-filing) is pending in the Commonwealth Court. (emphasis added). 22. To petitioner s [Dougherty s] dismay the investigators informed if Snyder is decertified they lack authority to force the Township to validate the permit and requested inspections whereby petitioner [Dougherty] would be required to start the process yet again. 2

3 23 Mandamus complaints are required to stand on their owns [sic] as they are eligible for immediate determination upon submittal under Peremptory Judgment. If the Board had required the terms of the law complied with none of the actions from 11/03/07 to this point would have been required. It is clear Permits under the ACT are required to last 5 years unless abandoned for 180 days (which has never occurred) Amended Complaint in Mandamus, Paragraphs 3-5, 10-12, 17-18, and at 2-6; R.R. at 40a-44a. On July 7, , the Township preliminarily objected to the amended complaint in mandamus and asserted: 2. The permit was issued on October 14, 2006 and, on its face, it expired on October 13, (emphasis added). 3. The Plaintiff [Dougherty] commenced an action against Defendant, Jonathan Snyder, only seeking to have the permit interpreted as still being valid and the inspection requests deemed approved when the original pleading labeled Writ of Mandamus was filed in the Commonwealth Court of Pennsylvania on November 16, 2007 (That matter was transferred by the Commonwealth Court to the York County Court of Common Pleas after the Commonwealth Court determined it did not have jurisdiction) (emphasis added). 4. On February 26, 2008 Snyder filed Preliminary Objections to the Petition for Writ of Mandamus challenging service, among other deficiencies with the Writ. (emphasis added). 2 The chronological order of the filing of the Township s preliminary objections and Snyder s preliminary objections are taken out of order so that the prior history of this case as recounted in the Township s preliminary objections may be used to establish the prior cogent facts. 3

4 5. By Order dated April 10, 2008, the Court granted the Preliminary Objections on the service issue, dismissed the Writ of Mandamus without prejudice, and ordered service be effectuated in accordance with the Rules (emphasis added). 6. On or about May 8, 2008, Plaintiff [Dougherty] appealed the April 10, 2008 decision of the Court in a pleading designated Petition for Allowance of Appeal to the Commonwealth Court, despite filing the within action (emphasis added). 7. However, on May 14, 2008 Plaintiff [Dougherty] filed a pleading labeled Amended Complaint in Mandamus naming Jonathan Snyder, Zoning Enforcement Officer... and the North Hopewell Township, and its Board of Supervisors (emphasis added). II. Preliminary Objections 8. Plaintiff [Dougherty] did not at any time petition to join additional defendants to his Writ of Mandamus action. (emphasis added). 9. At no time did defendant Snyder, agree and/or stipulate to the joinder of any additional parties. (emphasis added). 10. Plaintiff [Dougherty] has not commenced a new action against North Hopewell Township and the... Supervisors in the caption of his Amended Complaint in Mandamus apparently intending to add them as Defendants to the pending litigation. (emphasis added). 13. Furthermore, Plaintiff has no standing to assert the claims in his Petition as he was not the applicant for a building permit, nor does he own the home in question. (emphasis added). 14. The permit was issued to Kenneth Brady. (emphasis added). 4

5 15. Mandamus is an extraordinary writ 16. It will only be granted to compel performance of a ministerial duty where the petition establishes a clear legal right to relief and a corresponding duty to act by respondent. 19. Finally, Plaintiff s [Dougherty s] Amended Complaint in Mandamus also fails as it is legally insufficient under Pa.R.C.P [3] and 1019(a). [4] Preliminary Objections of the Township to Amended Complaint in Mandamus, June 3, 2008, Paragraphs 2-10, 13-16, and 19 at 1-4. On June 5, 2008, Snyder preliminarily objected to the amended complaint in mandamus and asserted: 1. This Court lacks jurisdiction because the dismissal of the original Petition has been appealed to the Commonwealth Court. See Pa.R.C.P. 1701(a). 4. The Amended Complaint is legally insufficient because it does not seek to compel Snyder to perform a ministerial duty. (emphasis added). 5. Plaintiff [Dougherty] has no standing to assert the claims in his Amended Complaint because he is not the applicant for a building permit. (emphasis added). Preliminary Objections of Jonathan Snyder to Plaintiff s Amended Complaint, June 5, 2008, Paragraphs 1, and 4-5 at Pa.R.C.P. No provides that [e]xcept as otherwise provided in this chapter, the procedure in the action of mandamus shall be in accordance with the rules relating to a civil action. 4 Pa.R.C.P. No. 1019(a) provides that [t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form. 5

6 On July 7, 2008, the common pleas court sustained Snyder and the Township s preliminary objections and dismissed Dougherty s amended complaint in mandamus. stated: On August 19, 2008, the common pleas court entered an order and The Court has received a Notice of Appeal that Petitioner/Plaintiff Keith Dougherty has appealed to the Commonwealth Court of Pennsylvania this Court s Orders entered July 7, Pursuant to Rule of Appellate Procedure 1925(b)... [Dougherty] is directed forthwith to file of record with this Court and serve on the undersigned Judge a Concise Statement of Matters Complained Of in the appeal no later than fourteen (14) days after this Order. A failure to comply with this direction may be considered by the Appellate Court as a waiver of all objections to the order, ruling, or other matters complained of in this appeal. (emphasis added). Order for Concise Statement, August 19, 2008, at 1; R.R. at 59a. On August 21, 2008, Dougherty filed anything but a concise statement of matters complained of. 5 See Concise Statement, August 21, 2008, at 1-5; R.R. at 61a-65a. In fact, the common pleas court responded: 5 Dougherty s concise statement of matters complained of consists of six pages of rambling prose single spaced. For example, Dougherty stated: Once again I must apologize being a non attorney I was not aware that rejection of pleadings could simultaneously lead to expungement of the audit trail. Therefore this non-attorney plaintiff assumed a Judge was reviewing these activities. It is not so. Pleas [sic] accept my sincere apologies as the Judge has been as much a victim of these improper activities as the plaintiff. (Footnote continued on next page ) 6

7 On August 21, 2008, Petitioner/Plaintiff [Dougherty] filed a document entitled Concise Statement. That document does not concisely state the matters about which the Petitioner/Plaintiff [Dougherty] complains on appeal. The trial court is unable to decipher the issues raised by the Petitioner/Plaintiff [Dougherty] from the Concise Statement and therefore is unable to properly prepare a 1925(a) Memorandum Opinion in Support of this Court s Order. (emphasis added). This Court will note, however, that the Complaint has never been served in accordance with the Rules of Civil Procedure. 1925(a) Memorandum Opinion in Support of Order, August 27, 2008, at 1-2; R.R. at 68a-69a. 6 (continued ) Untimely filings leave the court without jurisdiction to correct a non response. This non attorney does not know how the refusal of the respondent to either provide a copy of the 236 notice to his attorney or file a meritorious defense and explanation for refusal to plead for nearly 90 days will be treated. As to the technical interpretations. [sic] The courts outside this jurisdiction have a much different standard as evidenced by these decisions Concise Statement at 4; R.R. at 64a. 6 In Jones v. Rudenstein, 585 A.2d 520 (Pa. Super. 1991), our Pennsylvania Superior Court emphasized: Appellant apparently labors under the false assumption that by proceeding pro se he is absolved of all responsibility to comply with procedural rules, and that the appellee and/or court had some affirmative duty to walk him through the procedural requirements, or to ignore the procedural requirements to reach the merits of his claim. Such is not the case. (emphasis in original and added). Id. at

8 Essentially, Dougherty contends 7 that the common pleas court erred when it dismissed his original complaint in mandamus for failure to serve Snyder 7 Dougherty raised the following issues in his Statement of Questions Involved: 1. Upon appeal from an improper venue of jurisdiction is service of process void or voidable when it complies with any proper court proceedings? The court acted as if the case was never served and indicated the case is dismissed however could be reinstated. Error in Law. 2. Is a return of service required prior to allowance of a respondent/defendant to default? Although there had been 90 days prior to the 1 st response from defendant the prothonotary refused to enter the attempt to file a praecipe for default refusing to acknowledge the existence of PA.R.C.P 1098 where not only can default occur without a 405 notice under the proper circumstances it can occur without prior notice. Error in Law. 3. Does a mandamus action alleging improper takings [sic] under the 5 th amendment of the United States Constitution require agent(s) of government to plead? The court acting on behalf of defense treated mandamus as if there could be a run out the clock defense. Error in Law. 4. In a return of service claim required to be made by defense or can the court make the argument for defense without the prospect being viewed as improper surprise and an amendment to the preliminary objections (on behalf of defense or respondent eliminating plaintiff s opportunity to respond prior to dismissing the case) whereas the court is required to be an impartial and unbiased referee? In contradiction to Berman the court dismissed the case on 2 separate occasions. And what are required elements of a return of service notice? Exhibit 4, Exhibit 5 The Court believes only a specific form is acceptable. Abuse of Discretion. Appellant s Brief in Support, Statement of Questions Involved at 3. 8

9 and that there was an improper taking under the Fifth Amendment of the United States Constitution. 8 I. Personal Service. Initially, Dougherty contends that the complaint in mandamus was properly served upon Snyder. However, this argument is moot. Initially, the common pleas court determined that Dougherty failed to properly serve his complaint in mandamus upon Snyder. 9 On May 8, 2008, Dougherty appealed this dismissal to our Court, which appeal was docketed at No. 912 C.D On May 19, 2008, Dougherty then filed an amended complaint in mandamus 10 in the Court of Common Pleas of York County while his appeal at No. 912 C.D was still pending before this Court. On June 9, 2008, Dougherty withdrew his appeal before our Court and a notice of discontinuance of action was entered the same day. Because Dougherty withdrew his appeal and filed an amended complaint in mandamus the issue of whether Dougherty effected proper service of his original complaint in mandamus upon Snyder under Pa.R.C.P. No. 400 is presently not before this Court. The filing of an amended complaint to withdraw 8 This Court s standard of review of an order of the common pleas court sustaining preliminary objections in the nature of a demurrer is limited to a determination of whether the common pleas court abused its discretion or committed an error of law. In ruling on preliminary objections, the court must accept as true all well pled allegations of material fact. A demurrer should be sustained only in cases that are free from doubt and only when it appears with certainty that the law permits no recovery under the allegations set forth. Smith v. Pennsylvania Employees Benefit Trust Fund, 894 A.2d 874 (Pa. Cmwlth. 2006). 9 Pa.R.C.P. No. 400 provides that original process shall be served within the Commonwealth only by the sheriff. 10 Dougherty also sought to join the Township as an additional defendant. 9

10 the original complaint takes the place of the original pleading. Vetenshtein v. City of Philadelphia, 755 A.2d 62, 67 (Pa. Cmwlth. 2000). II. Improper Taking. A review of Dougherty s inarticulately drafted amended complaint in mandamus indicates that he never raised an allegation of an improper taking. Therefore, the common pleas court never addressed this issue when it granted the preliminary objections of Snyder and the Township. Pa. R.A.P. 302(a) provides that [i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal. 11 (emphasis added). Accordingly, this Court affirms. 11 Dougherty also contends that the prothonotary failed to enter a default judgment in favor of Dougherty and against Snyder. This issue was also never raised before the common pleas court and therefore is waived on appeal. 10

11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Keith Dougherty, : Appellant : : v. : : Jonathan Snyder : Zoning Enforcement Officer : N. Hopewell Twp. York Co. : Board of Supervisors : Dustin Grove, William Tollinger : No C.D and Robert Barclay : O R D E R PER CURIAM AND NOW, this 6th day of March, 2009, the order of the Court of Common Pleas of York County in the above-captioned matter is affirmed.