Opinion
No. 823 C.D. 2011
03-14-2012
Concilio Delglesias Ministetio Marantha Pentecostal Inc., Pastor Edwin Benitez, President of the Board of Directors, Appellants v. Zoning Hearing Board of the City of Scranton and The South Side Residents Association
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
In this appeal from the order of the Court of Common Pleas of Lackawanna County, the only issue presented is whether a non-attorney may represent a church organized as a non-profit corporation in an appeal from a zoning hearing board decision. For the reasons stated long ago, and consistently applied through the years in Walacavage v. Excell 2000, Inc., 480 A.2d 281 (Pa. Super. 1984), we must conclude that legal representation is required in order to pursue the appeal.
Concilio DeIglesias Ministetio Marantha Pentecostal Inc. (Church) purchased from Trinity United Church of Christ a building in the City of Scranton and began conducting regular Sunday services there. An association of neighboring property owners, The South Side Residents Association, filed an appeal of the zoning officer's decision to permit the use, asserting that this use of the building is not allowed under the zoning regulations inasmuch as minimum lot size and on-site parking requirements are not met. The City's Zoning Hearing Board (ZHB) convened a hearing at which the Church was represented by counsel. According to the Church, the Association's appeal to the ZHB was untimely and, in any event, the building had been used as a regular place of worship for at least 116 years, well predating the enactment of any zoning regulation. The Church presented testimony regarding use of the building prior to its purchase. The Association presented testimony that the building was used infrequently for events such as church dinners and not used primarily for religious purposes. Apparently crediting the testimony on behalf of the Association over that on behalf of the Church, the ZHB, by a vote of 2-1, concluded that the use of the building as a church was not permitted.
The Church, represented by Edwin Benitez, its pastor and president of its Board of Directors, filed a timely appeal from the ZHB's decision. Subsequently, the Church filed a "Petition in Support of Rule to Show Cause Why Appeal of Zoning Hearing Board Decision Should Not be Heard De Novo in Nature and Why the Caption Should Not be Amended to Remove the Zoning Hearing Board as an Appellee and Strike its Brief." At argument before common pleas on the Church's request that the matter be heard de novo, counsel for the Association asserted that, as a corporation, the Church could not proceed without representation by an attorney. Ruling from the bench, common pleas directed the Church to obtain counsel within 30 days.
Without obtaining counsel, the Church filed a rule to show cause why it should not be entitled to proceed pro se in its appeal of the ZHB decision. Following an answer to this petition and submission of briefs from the parties, common pleas denied the rule to show cause, stating in its order:
Our Superior Court's decision in Walacavage v. Excell 2000, Inc. requires that corporations retain legal counsel to represent their position before Pennsylvania courts, 480 A.2d 281, 282 (Pa. Super.1984). Though this admits of exception in certain select situations, petitioner has failed to meet any of said conditions.Order of the Court of Common Pleas (April 4, 2011). The Church appealed this ruling to this court, which sua sponte quashed the appeal as interlocutory. The Church applied for reconsideration, which we granted. The court vacated the order quashing the appeal and directed the parties to address in their merit briefs whether common pleas' order ruled on a collateral issue subject to immediate review under Pa.R.A.P. 313 . Neither party addressed the collateral order doctrine in their merits brief.
In its Application for Reconsideration, the Church argued that the order qualified as collateral, justifying the present appeal.
The South Side Residents Association did not file a timely brief and subsequently was precluded from doing so by order of this court. --------
Subsection (b) of Appellate Rule 313 defines a "collateral order" as "an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." Pa.R.A.P. 313 (b). Here, common pleas' order is clearly collateral to the substantive issues relevant in an appeal from a ZHB decision regarding the propriety of a use. The challenge to the order raises an important question regarding the scope of and a possible exception to the requirement imposed under Walacavage that a corporation be represented by a licensed attorney in order to proceed in court. Finally, if not reviewed at this stage of the proceedings, review will be foreclosed because either the church will secure counsel or have its appeal dismissed without a merits ruling. Pursuant to Appellate Rule 313, the appeal is properly before us.
In its brief, the Church contends that it is at root unfair to force it to expend scarce financial resources to hire an attorney to represent it in a dispute not of its own making. The Church further asserts that inasmuch as it could have appeared pro se at the ZHB hearing, requiring attorney representation at the appeal stage "defeats the administrative purpose of handling land disputes in the face of economic challenges, therefore prejudice or discrimination due to economic disadvantages are a nullity where nonprofit corporation can proceed pro se in all stages of a land dispute (sic)." Appellant's Brief at 12. Finally, to support the contention that because the Church does not have shareholders it does not fall within the rationale of Walacavage, the Church points to U.S. Polycon Corp. v. United States, 43 Fed. Cl. 11 (1999), where the United States Court of Federal Claims allowed a non-lawyer sole shareholder to represent the corporation despite the requirement in the applicable Rule, U.S. Ct. Cl. R. Civ. P. 81(d)(8), that corporations only be represented by counsel.
In its brief, the ZHB contends that the rationale of the court in U.S. Polycon has no bearing in the present case. As the ZHB correctly points out, in U.S. Polycon, the court reasoned that there is no relevant distinction between representation by a non-lawyer sole proprietor, which is allowed, and representation by a non-lawyer sole shareholder of a corporation who, like the sole proprietor, risks only his own interests should he forego adequate legal counsel. The ZHB asserts that, while the Church is not composed of corporate shareholders, it does have many members whose interests will be affected by inadequate representation by a non-lawyer.
U.S. Polycon has no applicability to this case. Not only is the ruling based on a rationale inapplicable to the present case and, in any event, of no precedential value in Pennsylvania, but also the Court of Appeals for the Federal Circuit, in Talasila v. U.S., 240 F.3d 1064, 1067 (Fed. Cir. 2001), declined to follow its reasoning. See also Affourtit v. United States, 79 Fed. Cl. 776, 780 (2008) (opining that, while in agreement with reasoning in Polycon, nevertheless bound by the ruling in Talasila that policy determinations do not overcome rule that corporations may appear in court only through licensed counsel).
The rule in Walacavage applies in this case; the Church, as a corporation, cannot appear in court and be represented by anyone other than a licensed attorney. See 480 A.2d at 284 (noting that in Pennsylvania the rule applies even if the corporation has only one shareholder). The Church's zoning appeal to common pleas fits neither of the two exceptions to this requirement, i.e., special tribunals with informal rules of procedure and stockholder's derivative actions. Moreover, as in Walacavage, the policy underlying the requirement is evident here. While the Church has demonstrated some understanding of the relevant issues in a zoning appeal by challenging the timeliness of the Association's application to the ZHB and the sufficiency of evidence supporting the ZHB's findings, it, nevertheless, has demonstrated a lack of the necessary expertise to effectively focus on the relevant issues, pressing for inappropriate relief such as removal of the ZHB from the caption.
Accordingly, we affirm the order denying leave to proceed with the zoning appeal pro se and remand for further proceedings.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 14th day of March, 2012, the order of the Court of Common Pleas of Lackawanna County is hereby AFFIRMED. The matter is hereby REMANDED and jurisdiction is relinquished.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge