Opinion
No. 787 C.D. 2013
02-19-2014
Citizens to Keep Radnor Parks Public, David M. Humphrey, Gayla McClusky, Heather Murphy, Albert B. Murphy, III, Thomas Ralph, Agnes Irwin School, Radnor Township Board of Commissioners, Radnor Township Board of Commission v. Radnor Township Agnes Irwin School Appeal of: James D. Schneller
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
James Schneller appeals an order of the Court of Common Pleas of Delaware County (trial court) denying his petition to intervene in the matter of Citizens to Keep Radnor Parks Public v. Radnor Township, No. 11-005331. Because the trial court's order is a nonappealable interlocutory order, we quash the appeal.
By way of background, in 2011 Radnor Township executed a lease agreement with the Agnes Irwin School, a private elementary and secondary school located in the Township. Pursuant to the agreement, Agnes Irwin leased Radnor Memorial Park, a publicly dedicated park, for 15 years, with options to extend for five additional one-year periods. Agnes Irwin agreed to pay the Township a yearly rental of $35,000; convert the existing all-purpose field into an artificial turf athletic field; and assume responsibility for maintenance of the field and a surrounding walking track. In return, Agnes Irwin was granted certain periods of exclusive use of the athletic field.
In July 2011, Citizens to Keep Radnor Parks Public (Plaintiffs), an unincorporated association of citizens of Radnor Township, Delaware County, filed a complaint against the Township, the Township Board of Commissioners and Agnes Irwin seeking a declaratory judgment that the lease violated the public trust doctrine and use restrictions set forth in a prior Covenants Agreement among the Township, Radnor School District and the grantor of the park land. In January 2012, Agnes Irwin began construction of the artificial turf field, prompting Plaintiffs to seek a preliminary injunction to stop the construction. After a hearing, the trial court denied the injunction, holding that Plaintiffs failed to prove they were likely to prevail on the merits of their underlying action for declaratory and injunctive relief.
The public trust doctrine is codified in the act commonly known as the Donated or Dedicated Property Act, Act of December 15, 1959, P.L. 1772, 53 P.S. §§3381-3386.
Plaintiffs appealed to this Court, raising several assignments of error by the trial court. Township resident James Schneller, appellant herein, filed a brief, pro se, in support of Plaintiffs' appeal as amicus curiae. This Court affirmed the trial court's order in a memorandum decision filed January 11, 2013. Citizens to Keep Radnor Park Public v. Radnor Township Board of Commissioners (Pa. Cmwlth., No. 412 C.D. 2012, filed January 11, 2013). In doing so, we held that there were "apparently reasonable grounds" for the trial court's conclusion that Plaintiffs were not likely to prevail on the merits of their underlying action. Id., slip op. at 5-6. Jurisdiction was relinquished to the trial court for further proceedings on Plaintiffs' action for declaratory and injunctive relief.
On March 13, 2013, Schneller petitioned the trial court pursuant to Pa. R.C.P. No. 2328 for leave to intervene in Plaintiffs' action. The trial court denied the petition, holding that Schneller's interests were adequately represented by Plaintiffs and that he delayed his intervention request by waiting twenty months after Plaintiffs filed their complaint. Schneller now appeals.
On appeal, Schneller argues that the trial court erred by denying his petition to intervene without first holding a hearing, as contemplated by Pa. R.C.P. No. 2329. Schneller also challenges the trial court's findings that his interests were adequately represented by Plaintiffs and that he waited too long to seek intervention.
This Court's scope of review of the denial of a petition to intervene is limited to determining whether the trial court abused its discretion or committed an error of law. Chairge v. Exeter Borough Zoning Hearing Board, 616 A.2d 1057, 1058 (Pa. Cmwlth. 1992).
At the outset, we must determine whether the trial court's order denying Schneller's petition to intervene is an appealable order. An order denying a party the right to intervene is not a final order under Pa. R.A.P. 341(b) because it does not dispose of all claims. Watson v. City of Philadelphia, 665 A.2d 1315, 1317 (Pa. Cmwlth. 1995). The note to Pa. R.A.P. 341 states that an order denying a party the right to intervene is not a final order but may be appealable by permission under Pa. R.A.P. 312 or as of right as a collateral order under Pa. R.A.P. 313.
Because the answer to this question goes to our jurisdiction, we may raise the issue sua sponte. West Pittsburgh Partnership ex rel. WEHAV Governing Commission v. McNeilly, 840 A.2d 498, 503 (Pa. Cmwlth. 2004).
Rule 341(b) defines a "final order" as any order that:
(1) disposes of all claims and of all parties; or
(2) is expressly defined as a final order by statute; or
(3) is entered as a final order pursuant to subsection (c) of this rule. Pa. R.A.P. 341(b).
Rule 312 states that "[a]n appeal from an interlocutory order may be taken by permission pursuant to Chapter 13 (interlocutory appeals by permission)." Pa. R.A.P. 312. It is evident from the record that Schneller did not request this Court's permission to appeal.
Although Schneller does not specifically cite Pa. R.A.P. 313, he asserts in his statement of jurisdiction that he should be permitted to appeal the trial court's order under the collateral order doctrine. This doctrine is codified in the rule as follows:
(b) Definition. A collateral order is [1] an order separable from and collateral to the main cause of action where [2] the right involved is too important to be denied review and [3] 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). In order to qualify as a collateral order, the appellant must demonstrate all three factors in the above definition. Watson, 665 A.2d at 1317. Narrow application of the collateral order doctrine is required to preserve the fundamental legal principle that only final orders may be appealed. Id.
Assuming the order denying intervention is separable from and collateral to Plaintiffs' main cause of action, Schneller has not met the other requirements of Pa. R.A.P. 313(b). Regarding the second requirement that the order involves an important right, this Court has held that
the mere assertion of a right to intervene is not per se too important to be denied review. The appellant must at a
minimum show actual entitlement to intervene under the applicable Rules of Civil Procedure in order to meet this test.Cogan v. County of Beaver, 690 A.2d 763, 765 (Pa. Cmwlth. 1997). The right to intervene is not unlimited. The applicable Rule of Civil Procedure provides that a petition to intervene may be denied if "the interest of the petitioner is already adequately represented." Pa. R.C.P. No. 2329(2).
Schneller failed to attach a copy of his proposed pleading to his petition to intervene, as is required. Nevertheless, his petition and brief to this Court support the trial court's holding that Plaintiffs have adequately represented his interests. The gravamen of Plaintiffs' case is that the Township violated its fiduciary duty to maintain the use of Radnor Memorial Park as a public park by leasing it to a private educational institution. If Plaintiffs prevail in their action, it will be on that theory, which asks the trial court to determine whether the terms of the lease are inconsistent with the public trust doctrine or the Covenants Agreement. What Schneller characterizes as "new evidence" are either issues already raised by Plaintiffs, e.g., the ratio of private use of Radnor Park to public use, or are unsubstantiated criticisms of the project ranging from the conduct of local officials to the effect on the bird population. These kinds of arguments are more appropriate for an amicus brief, which Schneller has already filed in Plaintiffs' previous appeal to this Court. In short, because Schneller's interests are adequately represented by Plaintiffs, he cannot assert that his right to intervene is too important to be denied review.
Rule of Civil Procedure 2328(a), which governs petitions to intervene, states: "The petitioner shall attach to the petition a copy of any pleading which the petitioner will file in the action if permitted to intervene or shall state in the petition that the petitioner adopts by reference in whole or in part certain named pleadings or parts of pleadings already filed in the action." Pa. R.C.P. No. 2328(a) (emphasis added). --------
We further hold that Schneller cannot satisfy the third prong of the collateral order test, i.e., that the question presented is such that if review is postponed until final judgment in the case the claim will be irreparably lost. Assuming Plaintiffs are unsuccessful in their action, Schneller could appeal the denial of his petition to intervene at the conclusion of that proceeding. If this Court determines on appeal that Schneller was entitled to intervene, we could order the remedy of a new trial with Schneller's participation.
For all of the foregoing reasons, the Court concludes that the trial court's order denying Schneller's petition to intervene is not an appealable collateral order. Accordingly, because Schneller has appealed a nonappealable interlocutory order, this Court lacks jurisdiction and the appeal is quashed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 19th day of February, 2014 the appeal of James Schneller from the order of the Court of Common Pleas of Delaware County dated April 5, 2013, denying his petition to intervene in the above-captioned matter is QUASHED.
/s/_________
MARY HANNAH LEAVITT, Judge