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ROBERT B. SKLAROFF, M.D. * IN THE COURT OF COMMON PLEAS1219 Fairacres Road * OF MONTGOMERY COUNTY,Rydal, Pennsylvania 19046-2911 * COMMONWEALTH OF PENNSYLVANIA

*Petitioner, *

*v. **

TOWNSHIP OF ABINGTON * NO. 2011-025401176 Old York Road * CIVIL DIVISIONAbington, Pennsylvania 19001 *

*Respondent, *

*BAEDERWOOD LIMITED PARTNERSHIP * JURY-TRIAL REQUESTED1301 Lancaster Avenue *

Berwyn, PA 19312 **Intervenor *

** * * * * * * * * * * *

Robert B. Sklaroff, M.D.1219 Fairacres RoadRydal, Pennsylvania 19046-2911(215) 333-4900pro se

MOTION TO EXPEDITE

I, Robert B. Sklaroff, M.D., certify that the following statements are true and accurate, and aver as follows:

1. Motions were filed on this case and on a related matter [2011-24970] on 9/6/2011, one requestingreconsideration of denial of standing [the instant case] and one requesting re-remand of transfer of

this issue to generate a substantive record by the Abington Township Zoning Hearing Board;

the appended briefs were identical, inasmuch as the foundations for both efforts were identical.

2. No response has been filed to either case by either the Township or the Intervenor, to-date.3. In the interim, an appeal was filed with Commonwealth Court, with the deadline for the submission

of a brief looming [10/20/2011]; it had been hoped that the necessity to do so could be obviated.

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4. Communication with Court Administration yielded communications seriatim with the Prothonotarysoffice and the chambers of Judge Moore; a voice-mail left on 10/13/2011 with the latter did not

prompt a response and Court Administration reported that Judge Del Ricci did not view this issue

as necessitating that he hold a hearing promptly [a view with which Petitioner candidly concurs,

for the lynch-pin remains the need to flesh-out the updated rationale harbored by Judge Moore].

5. The next step in the process, it would appear, should be a decision by Judge Moore regarding theissue of standing, inasmuch asrepeatedly during the 7/12/2011 Hearinghe referred to this as

a threshold issue that had to be rectified prior to proceeding further at the county-level; therefore,

absent any internal rectification [between himself and Judge Del Ricci], it would appear that he is

obligated to confront the database provided last month prior to holding a hearing on 11/7/2011

triggered by Intervenors motion regarding the issue of imposition of a multimillion-dollar bond.

6. Because Court Administration suggests the 9/6/2011 filings crossed-in-the-mail [in terms of howthey were docketed], it is requestedif necessarythat this filing serve as a nunc pro tunc

request to ensure that each judge is requested to perform the obvious next task in the process

[recalling, again, that the identical case-law analysis was indubitably provided to each judge],

pursuant to non-binding, non-legal advice seemingly provided if oral remedies proved fruitless.

7. Specifically, Judge Moore is invited to reconsider his order, and Judge Del Ricci is invited to studywhether re-remand could be performed, with or without a hearing; due to the unusual circumstance

of their prior contradictory orders, these judges are chiefly invited to generate a unified approach.

8. Appended is the Brief submitted to Commonwealth Court; except for minor reorganization [to befitthe Pa.R.A.P. Rules] and a prophylactic discussion of two issues [anticipating responses from the

Township and Intervenor], it is identical to the double-filing provided previously to both judges

{noting that the only exception is that the pagination has been altered because it follows this filing

and that the appended Order/Opinion need not be re-supplied to the county-level readership}.

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9. This Commonwealth Court Brief is provided to ensure all three courts share an identical database;emphasized therein is the absence of attention paid to two key-issues, the Doctrine of Laches

[which was ignored, constituting abuse of discretion] and to the standing issue [which was only

superficially addressed, constituting error of law], both of which were heavily referenced, and both

of which had been explicitly cited orally during the hearing [intuitively, even before legal-analysis].

10.Specifically, the threshold-issue citing the Doctrine of Laches also entailed Intervenors false-filing,and the standing-issue citing its three prongs [immediate/direct/substantial] also entailed ignoring

whether Petitioners domicile is located sufficiently proximate to the T-Intersection choke-point

[satisfying an excerpt from the Laughman case]; contrasted is the case-citation [predicated on the

notion that an increase of traffic on Sundays passing his rental properties did not suffice] with

documented exacerbation of the Penn-DOT certification of a maximally-congested intersection

[predictably impeding movement of emergency vehicles, pursuant to statute, a fact that was quoted

from both the Old York Road Corridor Improvement Study and the Abington Comprehensive Plan].

WHEREFORE, Petitioner respectfully requests that this Honorable Court grant Petitioner standing, and,

further, that Intervenors conduct be referred to the Disciplinary Board of the Pennsylvania Supreme Court.

Respectfully Submitted:

Robert B. Sklaroff, M.D.Robert B. Sklaroff, M.D.1219 Fairacres RoadRydal, Pennsylvania 19046-2911October 17, 2011

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ROBERT B. SKLAROFF, M.D. * IN THE COURT OF COMMON PLEAS1219 Fairacres Road * OF MONTGOMERY COUNTY,Rydal, Pennsylvania 19046-2911 * COMMONWEALTH OF PENNSYLVANIA

*Petitioner, *

*v. **

TOWNSHIP OF ABINGTON * NO. 2011-025401176 Old York Road * CIVIL DIVISIONAbington, Pennsylvania 19001 *

*Respondent, *

*BAEDERWOOD LIMITED PARTNERSHIP * JURY-TRIAL REQUESTED1301 Lancaster Avenue *

Berwyn, PA 19312 **Intervenor *

** * * * * * * * * * * *

ORDER

AND NOW, this ____ day of ______________ , 2011, upon consideration of this MOTION TO EXPEDITE,

it is hereby ORDERED and DECREED that the order be reversed and the Appellant be granted standing;

further, it is ORDERED and DECREED that the professional conduct of Marc B. Kaplin, Esquire be referred

for study by the Disciplinary Board of the Supreme Court of Pennsylvania.

BY THE COURT:

_________________________Bernard A. Moore, J.

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Affirmation

I certify that all statements within this filing are true and correct, to the best of my knowledge.

Robert B. Sklaroff, M.D.Robert B. Sklaroff, M.D.

10/17/2011

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ROBERT B. SKLAROFF, M.D. * IN THE COMMONWEALTH COURT1219 Fairacres Road * OF THERydal, Pennsylvania 19046-2911 * COMMONWEALTH OF PENNSYLVANIA

*Petitioner/Appellant, *

*v. **

TOWNSHIP OF ABINGTON * NO. 1442 CD 20111176 Old York Road *Abington, Pennsylvania 19001 *

*Respondent/Appellee, * Appeal from Order of

* Court of Common PleasBAEDERWOOD LIMITED PARTNERSHIP * Montgomery County1301 Lancaster Avenue * No. 2011-02540

Berwyn, PA 19312 **Intervenor *

** * * * * * * * * * * *

Robert B. Sklaroff, M.D.1219 Fairacres RoadRydal, Pennsylvania 19046-2911(215) 333-4900pro se

BRIEF FOR APPELLANT

I, Robert B. Sklaroff, M.D., affirm that the following statements are true and accurate. It is assumed that the

Reproduced Record has been sent directly from Norristown, PA. Attorneys-of-Record are as follows:

[for the Appellee] [for the Intervenor]Robert Rex Herder, Jr., Esquire Marc B. Kaplin, EsquireBresnan & Herder Kaplin Stewart Meloff Reiter & Simon, P.C.311 Lindenwold Avenue Union Meeting Corporate Center Ambler, PA 19002 910 Harvest Driveherder502@hotmail.com P.O. Box 3037(215) 646-4440 Blue Bell, PA 19422-0765

DArbuckle@kaplaw.com(610) 941-2666

mailto:herder502@hotmail.commailto:DArbuckle@kaplaw.commailto:DArbuckle@kaplaw.commailto:herder502@hotmail.com

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Table of Contents

[page]

1.

Front Cover [with requisite identification-data]

2. Table of Contents [pursuant to Pa.R.A.P. Rule #2111]3. Citations [of Statutes, Treatises and Case-Law]5. Jurisdictional Statement - Order In Question - Scope & Standard of Review6. Statement of the Questions Involved - Statement of the Case

7. Summary of Argument

8. Argument

A. Intervenors Filing Was Untimely.B. Appellant Does Not Lack Standing.

(i) Substantial: There is some discernible adverse effect to some interestother than an abstract interest all citizens have.

(ii) Direct: The matter complained of causes harm to the partys interest,though not necessarily a pecuniary interest.

(iii) Immediate: The interest is something more than a remote consequenceand centers on a causal nexus between the action complained of and theinjury to the party challenging it.

C. Discussion.(i) Standing-Related Cases.

(ii) Other Zoning-Related Cases.

(iii) Redundant Cases.

(iv)Overview [Elaboration, Clarifications, Disclaimers, Postulates].31. Conclusion and Relief Sought

{appended} Opinion - Certificate of Service

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Citations

Statutes

8 Pennsylvania Municipalities Planning Code, 1002-A

23 53 P.S. 10603(a)

Treatises

9 Pennsylvania Rules of Professional Conduct, Preamble{http://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdf}

12 Property Owners Need to Seek Intervention in Zoning Battles , By Alan Nochumsonhttp://www.nochumson.com/articles/may-2004.html

Case-Law

24 Alexander v. Zoning Hearing Board of Mount Joy Township (2008), Pa. Cmwlth. No. 770 C.D.(2010)

15 The Boeing Co. v. Zoning Hearing Bd. of Ridley Township, Pa. Cmwlth. 822 A.2d 153 (2003)

23 Brendel v. Zoning Enforcement Officer of Borough of Ridgway, Pa. Cmwlth. 780 A.2d 750 (2001)

23 Cleaver v. Board of Adjustment, 200 A.2d [408] at 411-12 (Pa. 1964)

21 Department of General Services v. Board of Claims , Pa. Cmwlth. 881 A.2d 14 (2005)

22 Epting v. Marion Township Zoning Hearing Board, 110 Pa. Cmwlth. 389, 532 A.2d 537 (1987)

24 Fisher v. Viola, Jr., et. al. 789 A.2d 782, Pa. Cmwlth. (2001)

16 Geryville Materials, Inc. v. Lower Milford Township Zoning Hearing Board, Pa. Cmwlth. 972 A.2d136 (2009)

17 Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 589 Pa. 135, 907 A.2d 1033(2006)

23 Grove v. Zoning Hearing Board of Thornbury Township , 40 Pa. Cmwlth. 47 (1979)

21 Harrisburg School District v. Hickok II III IV. 761 A.2d 1132 (2000)

19,20 Laughman v. Zoning Hearing Board of Newberry Township , Pa. Cmwlth. 964 A.2d 19 (2009)

http://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdfhttp://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdfhttp://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdfhttp://www.nochumson.com/articles/may-2004.htmlhttp://www.nochumson.com/articles/may-2004.htmlhttp://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdf

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19 Leoni v. Whitpain Township Zoning Hearing Board, Pa. Cmwlth. 709 A.2d 999 (1998)

19 Miravich v. Township of Exeter, Pa. Cmwlth. 2010 WL 4242559 (2010)

21 Nahas v. Zoning Hearing Board of Schuylkill, Pa. Cmwlth., No. 1780 C.D. 2002 (2003)

23 National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215A.2d 597, 607 (Pa. 1966)

20 Northampton Residents Association v. Northampton Township Board of Supervisors. 14 Pa.Cmwlth. Pages 516-526 (1974)

19 Office of Attorney General, ex. rel. Corbett v. Richmond Township, Pa. Cmwlth. 917 A.2d 397(2007)

19 Pittsburgh Trust for Cultural Resources v. Zoning Board of Adjustment for the City of Pittsburgh ,

145 Pa. Cmwlth. 503, 604 A.2d 298 (1992)

21,23 Realen v. Upper Merion. Pa. 838 A.2d 718 (2003)

17 Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 850 A.2d 619 (2004)

20 Spahn v. Zoning Board of Adjustment, L.L.C. 977 A.2d 1132 (2009). Pa.

19 Thompson v. Zoning Hearing Board of Horsham Township. Pa. Cmwlth.963 A.2d 622 (2009)

17 White v. Township of Upper St. Clair, No. 886 C.D. 2008, 2009 Pa. Cmwlth. LEXIS 78 (2009)

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Jurisdictional Statement

Commonwealth Court [Pa.R.A.P. Rule 702(a)] has jurisdiction over this Final Order [Pa.R.A.P. Rule 341(b)]appealed by this aggrieved party [Pa.R.A.P. Rule 501].

Order In Question

The Motion to Quash was Granted by Judge Bernard A. Moore [8/31/2011]. {Appended}

AND NOW, this 26th day of July, 2011, upon consideration of Intervenor, BaederwoodLimited Partnerships Motion to Quash Plaintiffs Procedural Challenge and AlternativeRequest for the Imposition of a Bond, it is hereby ORDERED and DECREED, that PlaintiffRobert B. Sklaroff, M.D.s procedural challenge to Abington Township Ordinances 2000and 2006 is QUASHED and DISMISSED.

Scope & Standard of Review

Concerns are raised both with Abuse of Discretion and Errors of Law.

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Statement of the Questions Involved

1. Was Intervenors Filing Untimely? [Suggested Answer: Yes.]2. DoesAppellant Lack Standing? [Suggested Answer: No.]

Statement of the Case

On January 6, 2011, the Abington Township Board of Commissioners enacted Ordinances 2000

and 2006 (12-2); the former created the Fairway Transit District [FTD], and the latter rezoned three land

parcels comprising the Baederwood Shopping Center to this newly-created FTD. They were enacted,

allegedly, in response to the substantive validity challenge to the zoning of one of the Shopping Center

Parcels submitted by Intervenor although, as per official statements, it was actually the threat of such a

filing by months end that prompted an expedited approval process during the prior two months. Appellant,

an Abington Township resident, challenged its validity. On June 15, 2011, Judge Thomas Del Ricci created

the law of the case when he bifurcated it procedurally and substantively, ruling that the former was stayed

and the latter was remanded for hearings on the merits; Appellant s standing was not to be challenged.

After Intervenor (supported by Appellee) challenged Appellants standing, Judge Moore overruled

Judge Del Ricci when he ruled Appellant lacked standing; on August 24, 2011, citing Judge Moores ruling,

the Zoning Hearing Board reversed its prior decision that granted standing. Appeals were filed as to both:

the former [procedural] to Commonwealth Court and the latter [substantive] to Judge Del Ricci, and a filing

requesting reconsideration has been submitted to Judge Moore [absent any response, despite the fact that

neither Appellee nor Intervenor filed any reply thereto]. Oral Communication through Court Administration

on 10/13/2011 suggests that neither judge will take any action prior to the deadline for this submission.

Thus, this brief-filing is necessary to preserve the key-issues submitted to these two county-level judges

[absent evidence they have rectified their contradictory actions, either publicly or privately]; throughout,

efforts have been made to maximize judicial efficiency and to minimize any burden on the judicial system.

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Summary of Argument

Intervenors challenge to Appellants standing was not timely because it was not filed prior to the

hearing held on June 15, 2011, despite the fact that Appellant was informed of this upcoming event during

the prior week by Appellee. The Doctrine of Laches is applicable and, thus, the Court should not have

honored this Emergency Petition [notwithstanding concern with whether this constituted an emergency].

Intervenors challenge to Appellants standing should have been quashed because Appellant has

a substantial, direct and immediate interest in this zoning matter. [The two case citations provided prior to

the hearing were easily refuted thereat, and no other case citations were provided to Appellant thereafter.]

Both of these concerns were articulated during the hearing before Judge Moore and documented

thoroughly via court-filings that are identical to those contained herein; to follow is the text thereof.

*

Judge Moores 8/31/2011 Opinion failedto recognize two key-facets of the instant case that were

clearly articulated by Appellant and left unchallenged by both Appellee and Intervenor: the motion was not

filed in a timely fashion (recognizing that Appellant had apprised Intervenor of the June 15, 2011 hearing

during the prior week) and the standing-issue was not adequately scrutinized (for it was predicated upon

neither the distance between the FTD and Appellants property, nor whether the roads surrounding the

Shopping Center could become more heavily congested). Thus, Appellant seeks (1)reversalof Judge

Moores decision because Intervenor had elected not to participate in the initial proceedings (as a threshold

consideration) and because Appellant has articulated a direct, substantial and immediate interest in the

FTD (both in court-filings and during the hearing), a nexus relating to the maintenance of his health and

safety; and (2)re-remandof the case to the Zoning Board, to create a complete, judiciable record.

{An additional concern as to the professional ethics of counsel for Intervenor has been cited herein

as a determinant regarding the Doctrine of Laches issue; it merits review by the Pa. Disciplinary Board.}

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Argument

A. Intervenors Filing Was Untimely.On June 15, 2011, during in camera discussion with Judge Del Ricci, the fact that Appellant had

not informed Intervenor of these proceedings was discussed [noting his pro se status] along with the fact

that Appellee had not filed papers within prescribed time-limits [noting he was rebuked for having failed to

reply even when he had allegedly been provided only three pages of a recognized filing by Appellant,

declining either to download the complete document from the Internet or to contact Appellant for a copy].

Appellee stated he had informed Intervenor of the fact that these proceedings were scheduled to transpire,

during the week prior to the scheduled-hearing. It was agreed that it would be desirable to expedite

matters by bifurcating the case into its procedural/substantive facets [see hearing-transcript of 6/15/2011].

On July 12, 2011, Intervenors attorney confirmed this chronology, stating {Page 8:Lines 14 -17}:

I didnt know about a proceeding even occurring until five or six days before I had those documents. I did

not participate. Despite the fact that he recognized Appellee had advertised the approval process {7:23}

and had been apprised of Appellants filing, he failed to file for Intervenor status prior to June 15, 2011.

Later, Intervenor reconfirmed he had not been a part of the June 15, 2001 hearing {39:13}; Appellee stated,

I provided Mr. Kaplins office a week before the June 15 th hearing with a copy of Dr. Sklaroffs filings.

Nobody could respond to that filing at that point. By the way, that filing, to which a response would have

been required, was 839 pages in length {40:25 41:7}. In response to these myriad defenses for

Intervenor having remained inert, Appellant ignored myriad tangential ad hominem accusations and stated:

[Intervenor] knew way ahead-of-time, before June 15 th, and had every opportunity to file anappearance prior thereto. I would not have challenged it then and I am not challenging itnow. The bottom line is, they lost that chance to follow the law that they know mandatesthey file [not follow a typographical error in the transcript] within 30 days thereafter.Now, I would have accepted it nunc pro tunc, whatever, and then that would have been theend of it. But they denied themselves the opportunity to participate on June 15 thconsciously. So, therefore, I think they lost their bite at the apple {40:4-16}.

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I have been very public about this. And even if this onerous filing was potentially toovoluminous to potentially have been digested sufficiently, that could have been included inthe filing of a Notice to Intervene and simply say [sic]: Lets discuss this after I [have] hada chance to think about the problem. What youre hearing here is what Judge Del Ricciheard in-chambers: The dog ate my homework; the dog ate my Complaint. {41:15-24}.

The Pennsylvania Municipalities Planning Code explicitly states { 1002-A} states:

Intervention. Within the 30 days first following the filing of a land use appeal, if the appealis from a board or agency of a municipality, the municipality and any owner or tenant ofproperty directly involved in the action appealed from may intervene as of course by filing anotice of intervention, accompanied by proof of service of the same, upon each appellantor each appellants counsel of record.

Thus, the perceived defect in notification of Intervenor by Appellant had been cured by Appellee

during the week prior to the hearing and, thus, Intervenors absence from the June 15

th

hearing disqualified

Intervenor from harboring standing to have filed the motion challenging Appellants Standing. Essentially,

Intervenorwho is intimately familiar with zoning lawassumed the burden to act and chose not to do so.

In addition, Intervenor filed a document that misrepresented this chronology, claiming ignorance

of any prior knowledge of the June 15 th proceedings; it was falsely claimed Intervenor had firstlearned of

this litigation afterAbington had promptly informed it of the June 15, 2011 Order {seeMemorandum of

Law in Support of Intervenor Baederwood Limited Partnerships Motion to Quash Procedural Challenge and

Alternative Request for the Imposition of a Bond}. Thus, Appellants response to this filing concluded:

[T]he attorney [Mr. Kaplin] is failing to function as an officer-of-the-Court, as is always expected of a

professional attorney functioning in good faith. And Appellant cited from the Pennsylvania Rules of

Professional Conduct to corroborate his justifiable concerns and reasonable expectations. Phraseology

from Pennsylvanias canons of judicial ethics that has been underlined is of particular import: Lawyers are

expected to uphold their societal duty to ensure public-trust is maintained in the legal professioneven

under the rules of law and of the adversary systemby being competent, prompt and diligent when

maintaining communication with a client concerning [their] representation thereof, rather than [by]

attempting to use the laws procedures to harass or intimidate (rather than only for legitimate purposes).

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The following excerpt is purposefully incomplete; the intent is to show the existence of an issue.

{seehttp://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdf}:

PREAMBLE: A Lawyers Responsibilities

[1] A lawyer, as a member of the legal profession, is a representative of clients, anofficer of the legal system and a public citizen having a special responsibility forthe quality of justice.

[2] As a representative of clients, a lawyer performs various functions. As advisor, alawyer provides a client with an informed understanding of the client s legal rightsand obligations and explains their practical implications. As advocate, a lawyerzealously asserts the clients position under the rules of the adversary system. Asnegotiator, a lawyer seeks a result advantageous to the client but consistent withrequirements of honest dealings with others. As an evaluator, a lawyer acts byexamining a clients legal affairs and reporting about them to the client or to others.

[3] In addition to these representational functions, a lawyer may serve as a third-partyneutral, a nonrepresentational role helping the parties to resolve a dispute or othermatter. Some of these Rules apply directly to lawyers who are or have served asthird-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules thatapply to lawyers who are not active in the practice of law or to practicing lawyerseven when they are acting in a nonprofessional capacity. For example, a lawyerwho commits fraud in the conduct of a business is subject to discipline forengaging in conduct involving dishonesty, fraud, deceit or misrepresentation. SeeRule 8.4.

[4] In all professional functions a lawyer should be competent, prompt and diligent. Alawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of aclient except so far as disclosure is required or permitted by the Rules ofProfessional Conduct or other law.

[5] A lawyers conduct should conform to the requirements of the law, both inprofessional service to clients and in the lawyers business and personal affairs. Alawyer should use the laws procedures only for legitimate purposes and not toharass or intimidate others. A lawyer should demonstrate respect for the legalsystem and for those who serve it, including judges, other lawyers and publicofficials. While it is a lawyers duty, when necessary, to challenge the rectitude ofofficial action, it is also a lawyers duty to uphold legal process.

[6] As a public citizen, a lawyer should seek improvement of the law, access to thelegal system, the administration of justice and the quality of service rendered bythe legal profession. As a member of a learned profession, a lawyer shouldcultivate knowledge of the law beyond its use for clients, employ that knowledge inreform of the law and work to strengthen legal education. In addition, a lawyershould further the publics understanding of and confidence in the rule of law andthe justice system because legal institutions in a constitutional democracy dependon popular participation and support to maintain their authority.

http://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdfhttp://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdfhttp://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdfhttp://www.padisciplinaryboard.org/documents/RulesOfProfessionalConduct.pdf

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A lawyer should be mindful of deficiencies in the administration of justice and ofthe fact that the poor, and sometimes persons who are not poor, cannot affordadequate legal assistance. Therefore, all lawyers should devote professional timeand resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or

secure adequate legal counsel. A lawyer should aid the legal profession inpursuing these objectives and should help the bar regulate itself in the publicinterest.

[7] Many of a lawyers professional responsibilities are prescribed in the Rules ofProfessional Conduct, as well as substantive and procedural law. However, alawyer is also guided by personal conscience and the approbation of professionalpeers. A lawyer should strive to attain the highest level of skill, to improve the lawand the legal profession and to exemplify the legal profession s ideals of publicservice.

[8] A lawyers responsibilities as a representative of clients, an officer of the legalsystem and a public citizen are usually harmonious. Thus, when an opposing party

is well-represented, a lawyer can be a zealous advocate on behalf of a client andat the same time assume that justice is being done. So also, a lawyer can be surethat preserving client confidences ordinarily serves the public interest becausepeople are more likely to seek legal advice, and thereby heed their legalobligations, when they know their communications will be private.

[9] In the nature of law practice, however, conflicting responsibilities are encountered.Virtually all difficult ethical problems arise from conflict between a lawyersresponsibilities to clients, to the legal system and to the lawyers own interest inremaining an ethical person while earning a satisfactory living. The Rules ofProfessional Conduct often prescribe terms for resolving such conflicts. Within theframework of these Rules, however, many difficult issues of professional discretioncan arise. Such issues must be resolved through the exercise of sensitiveprofessional and moral judgment guided by the basic principles underlying theRules. These principles include the lawyers obligation zealously to protect andpursue a clients legitimate interests, within the bounds of the law, whilemaintaining a professional, courteous and civil attitude toward all persons involvedin the legal system.

[10] The legal profession is largely self-governing. Although other professions alsohave been granted powers of self-government, the legal profession is unique inthis respect because of the close relationship between the profession and theprocesses of government and law enforcement. This connection is manifested inthe fact that ultimate authority over the legal profession is vested largely in thecourts.

[11] To the extent that lawyers meet the obligations of their professional calling, theoccasion for government regulation is obviated. Self-regulation also helps maintainthe legal professions independence from government domination. An independentlegal profession is an important force in preserving government under law, forabuse of legal authority is more readily challenged by a profession whosemembers are not dependent on government for the right to practice.

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[12] The legal professions relative autonomy carries with it special responsibilities ofself-government. The profession has a responsibility to assure that its regulationsare conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of theRules of Professional Conduct. A lawyer should also aid in securing their

observance by other lawyers. Neglect of these responsibilities compromises theindependence of the profession and the public interest which it serves.[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role

requires an understanding by lawyers of their relationship to our legal system. TheRules of Professional Conduct, when properly applied, serve to define thatrelationship.

A partys inaction constitutes its having waived its right to become involved in zoning litigation

{Thompson v. Zoning Hearing Board of Horsham Township . Pa. Cmwlth. 963 A.2d 622 (2009)}, to wit:

At a hearing on the standing issue, Thompson presented no evidence to indicatethat he had a direct, immediate, substantial or pecuniary interest in the subjectmatter of the litigation. Nevertheless, the trial court denied Landowners motion toquash, reasoning that Landowner waived any challenge to Thompsons standingby failing to object to Thompsons grant of party status before the ZHB.

This precedent has been corroborated: [R]egardless of whether an individual is a person

aggrieved, that person must nonetheless appear or at least raise some objection before the [zoning

hearing] Board in order to have standing to advance an objection on appeal {Leoni v. Whitpain Township

Zoning Hearing Board, Pa. Cmwlth. 709 A.2d 999 (1998)}. This is how the issue of standing should be

adjudicated {Miravich v. Township of Exeter, Pa. Cmwlth. 2010 WL 4242559 (2010}:

[S]tanding as discussed in Leoni comprises two concepts. The first issubstantive standing, which looks to whether the putative litigant has a sufficientinterest in the outcome of the litigation to be allowed to participate. This facet ofstandingwhether one has an interest that is direct, immediate and substantialis required at all levels of proceedings, and in the context of standing to appeal isgenerally described as whether one is aggrieved by the decision sought to bereviewed. The other aspect of standing, the one at issue both here and in Leoni, isprocedural in nature, i.e., whether one has asserted his right to participatesufficiently early. This inquiry involves a balancing of the interests of judicialeconomy and those of due process. Objections must be stated in sufficient timethat they can be heard without duplicative hearings, but not until potentialobjectors have sufficient notice of the proceedings that it is reasonable to expectthem to assert their rights. For the reasons which follow, we hold that it was errorfor common pleas to apply the Leoniprocedural rule of standing to this case.

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A somewhat lengthy essay on this topic is provided in its entirety to illustrate the importance of

recognizing the consequences of the lack of timeliness when a party chooses not to intervene:

Property Owners Need to Seek Intervention in Zoning Battles

By Alan Nochumson

Since the 1990s, the region has received an extreme makeover as planned communities,retail complexes and restaurants have taken root in previously underdeveloped areas ofthe region. Since the use and occupancy of buildings, structures and land in the region arestrictly restricted and regulated by Pennsylvania s municipalities planning code and otherapplicable zoning regulations, variance relief is typically required in order for developmentto occur.

Neighborhood opposition can prolong the zoning approval process. Even if the zoning

hearing board grants the variance, affected neighbors have the right to appeal the board sdecision to the court of common pleas. In a recent decision, the Commonwealth Court inNahas v. Zoning Hearing Board of Schuylkill issued a strict warning to remind developersnot to sit back idly while the appeal is being fought at the trial court level.

VARIANCE GRANTED

In Nahas, Anna and Robert Yeager filed an application for a zoning variance under themunicipalities planning code with the zoning hearing board of Schuylkill County to operatea car restoration business out of their garage on property located in a residential zoningdistrict. The zoning hearing board granted the variance after concluding that the propertyowners would suffer unnecessary hardship under the strict application of the ordinancedue to the unique physical conditions particular to their property.

TRIAL COURT REVERSES RULING

After the zoning hearing boards decision was handed down, two of the Yeagersneighbors, Joseph and Olga Nahas, decided to challenge the decision by filing an appealwith the Court of Common Pleas of Schuylkill County. Since the Nahases were onlyrequired under Pennsylvania law to sue the zoning hearing board and not the Yeagers, theYeagers were not a party to the land use appeal. Even though the zoning variance was atstake, the Yeagers chose not to participate in the trial court proceedings.

The trial court eventually reversed the zoning hearing board s determination and held thatthere was no unnecessary hardship by the denial of the zoning variance. The Yeagersthen filed an appeal of the trial courts ruling with the Pennsylvania Commonwealth Court.

The Nahases then filed a motion to quash the appeal, arguing that the Yeagers lackedstanding to appeal the trial courts ruling because the Yeagers had failed to intervene inthe trial court proceeding and thus were not a party to the land use appeal filed by theNahases.

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RIGHT TO INTERVENE

A party generally intervenes in a case by petitioning the court for leave to intervenepursuant to the Pennsylvania Rules of Civil Procedure. The municipalities planning code,however, makes it relatively easy for a property owner to intervene in land use appeals.

Section 11004-A of the code provides that within 30 daysfollowing the filing of a landuse appeal, if the appeal is from a board or agency of a municipality, the.owner or tenantof the property directly involved in the action appealed from may intervene as of course. By permitting intervention as of right in land use appeals, the municipalities planning code,in effect, creates a presumption that the property owner or tenant meets the requirementsto intervene which are set forth under Pennsylvania Rules of Civil Procedure.

LACK OF STANDING

The Commonwealth Court granted the Nahases motion to quash the Yeagers appeal,finding that the Yeagers lacked standing to appeal the trials court decision because the

Yeagers had failed to intervene in the trial court proceeding. The Commonwealth Courtnoted that a property owner whose property is directly involved in a zoning appeal is notgranted automatic party status in an appeal from the decision of the zoning hearing boarddespite the fact that both may have participated as parties before the board. TheCommonwealth Court caustically stressed that if the property owner wishes to appeal thetrial courts ruling, the property owner must intervene as a party at the trial court level.

The Commonwealth Court found that the Yeagers failure to intervene was fatal to theirappeal of the trial courts adverse ruling. In Nahas, the court focused on the Yeagers decision not to intervene under Section 11004-A. While a property owner or tenant has theright to intervene under Section 11004-A so long as notice of intervention is filed within 30days of the land use appeal, the property owner or tenant is not prevented from interveningin the appeal after the 30 day period expires. Pennsylvania courts have consistently heldthat the property owner or tenant can intervene pursuant to the Pennsylvania Rules of CivilProcedure even if he misses the 30-day deadline.

If the property owner or tenant decides to intervene pursuant to the Pennsylvania Rules ofCivil Procedure instead of under Section 11004-A, he must file a petition for leave tointervene with the trial court. The trial court then, upon the filing of the petition and after ahearing on the merits, has the discretion to either grant or deny the petition.

While the trial court has the discretion to deny a petition to intervene filed pursuant to thePennsylvania Rules of Civil Procedure, such petitions are generally granted simplybecause an owner or tenant of property involved in zoning litigation obviously has therequisite interest and status to become an intervener. For example, in Epting v. MarionTownship Zoning Hearing Board, the Commonwealth Court found that the trial court didnot abuse its discretion by allowing intervention in a land use appeal four months after theappeal was filed. In Epting, the Commonwealth Court concluded that the petition tointervene was filed two months before the scheduled hearing date and the delay did notprejudice the appeal.

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Similarly, the Commonwealth Court in Grove v. Zoning Hearing Board of ThornburyTownship found that the trial court did not abuse its discretion by allowing the propertyowner to intervene after the prescribed 30-day period has already elapsed. In Grove, theCommonwealth Court stated that the adjoining property owners, who appealed the zoningboards decision, were not prejudiced by the petition to intervene, which was filed more

than 30 days after the appeal was filed but before the case was listed for argument.

Even though Pennsylvania courts readily allow the property owner or tenant to intervene inthe land use appeal, he must actually intervene in the appeal under Section 11004-A orpursuant to the Pennsylvania Rules of Civil Procedure. For example, in Brendel v. ZoningEnforcement Officer of Borough of Ridgway, the Commonwealth Court reiterated that mereparticipation in a matter before the trial court does not accord the participant party statusand, thus, standing to appeal. In Brendel, the court found that the Borough of Ridgwaylacked standing to appeal the decision of the trial court even though the Borough ofRidgway submitted briefs and presented testimony at trial. The court noted that theBorough did not file notice of intervention or indicate to the trial court that it was attempting

to intervene pursuant to the Pennsylvania Rules of Civil Procedure.

LESSON LEARNED FROM NAHAS

Property owners should take solace from the Commonwealths Court decision in Nahasbecause it merely reacquainted them with well-established precedent. As a result, theyhave no choice but to remain actively involved at the trial court level, even if they havereceived zoning approval from the zoning board. If they fail to do so and count theirchickens before they hatch, they could find themselves being barred from appealing anunfavorable trial court ruling, a virtual death sentence for the development project.

Groveis perhaps the most on-point citation herein; the 30-day limit can be waived if Appellant is

not prejudiced and if the ultimate filing transpires prior to the scheduled hearing. In the instant case, these

criteria were not met; Appellant has been prejudiced and the filing occurred after the scheduled hearing.

One additional citation is provided at-length to dramatize the importance of filing a timely notice of

intervention {The Boeing Co. v. Zoning Hearing Bd. of Ridley Township, Pa. Cmwlth. 822 A.2d 153 (2003)}:

After prolonged litigation, Township entered into settlement agreement and consent decree(issued by a federal district court) with Owner of a non-conforming adult entertainmentfacility (AEF) located in a residential district. By Ordinance, Township enacted the terms ofthe settlement agreement and consent decree providing for re-location of the AEF to anindustrial district. Forty-five days after Township enacted the Ordinance, the owner ofproperty adjacent to the AEFs designated relocation site challenged the Ordinance beforethe zoning hearing board. Objector argued that the Township had engaged in illegal spot-zoning and contract-zoning. Board dismissed the challenge as untimely and Objectorappealed.

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Although the terms of the settlement agreement allowed the AEF to operate outside of thezoning ordinance and under specially adopted regulations that did not wholly comply withthe Townships zoning ordinance, the Court of Common Pleas, interpreting theCommonwealth Courts prior decision in Summit Township Taxpayers Association,concluded that such departures, when authorized by judicial decree affirming the terms of

the settlement, may not be attacked at a later date by third parties who had notice of theagreement but who failed to intervene when the terms of the settlement agreement werebeing negotiated.

The accuracy of this case-summary (provided on an Internet web-site Land Use Law in PA) is

validated by review of key-excerpts from the Opinion (noting that the Supreme Court did not accept it)

generated by Commonwealth Court, recognizing the Intervenors burden to function in a timely fashion:

The industrial lot to which the new AEF was to relocate under the agreement was adjacent

to a facility owned and operated by Boeing. At Boeings request, on November 10, 2000,Township officers met with Boeing officials regarding the relocation of Smileys facility.Township officials provided Boeing with copies of the proposed settlement and consentdecree and also informed them as to the pending cases. At the meeting, the Boeingrepresentatives raised concerns as to the relocation of this facility. Township officialsindicated that both a proposed settlement reached by the parties, as well as a new set ofzoning regulations relating to the operation of Smileys AEF at this new site, would bevoted on at the November 21, 2000 meeting. The Township officials also indicated theirintention to ensure that landscaping on the future AEF property would be put in place toprovide a buffer between the AEF and Boeing. Boeing took no further action regarding thissettlement in the period between the November 10, 2000 meeting it attended, and theNovember 21, 2000 Township meeting.

At the November 21, 2000 meetingthe Township unanimously approved the settlement.No Boeing representative was present at this Township meeting.On January 5, 2001,Boeing filed a notice of appeal to the Board.

A further case-citation illustrates why Intervenors effort (buttressed by the Appellee) to deflect

blame onto Appellant regarding insufficient notification is totally bogus {Geryville Materials, Inc. v. Lower

Milford Township Zoning Hearing Board, Pa. Cmwlth. 972 A.2d 136 (2009)}, noting that no harm resulted

from delayed-notification (ultimately, admittedly, provided by Appellee) Again, to ensure the chronology

in this case-citation is viewed as correlative with that in the instant case, quotes are extensive:

Geryville materials owned parcels totaling in excess of 628 acres in an Agricultural-RuralZoning District in Lower Milford Township. Geryville filed a request for a special exceptionwith the Zoning Hearing Board to allow for quarrying and related activities on the property.

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While the request for special exception was pending, the Pennsylvania Supreme Courtissued its decision in Glen-Gery Corporation v. Zoning Hearing Board of Dover Township ,589 Pa. 135, 907 A.2d 1033 (2006), which allowed the landowner in that case to challengethe validity of a zoning ordinance based on procedural defects during its enactmentbeyond the statutory 30-day period for challenge. As a result of that decision, Geryville

filed challenges with the Zoning Hearing Board seeking a ruling that the ten ordinancesapplicable to its property were void ab initio under Glen-Gery. The Zoning Hearing Boardconducted numerous hearings and issued a ruling upholding the ordinances.It determined that there were no procedural defects in the enactment of the zoningordinances and, therefore, they were not void ab initio. Geryville appealed to the CommonPleas Court, and the Township and a resident intervened. The Court affirmed the decisionof the Zoning Hearing Board, finding that the procedural defects were not sufficient toconstitute a violation of procedural due process and the reasonable reliance upon theordinances by Township residents precluded a finding that the ordinances were void.Geryville subsequently appealed to the Commonwealth Court.

As an initial matter, the Commonwealth Court rejected Geryvilles argument that theZoning Hearing Boards failure to mail its decision until a week later required a finding of adeemed approval under the MPC, as Geryville could demonstrate no consequence of thelate mailing that deprived it of due process. Geryville then argued that the Boardsdecision had to be reversed based on its failure to make specific factual findingsconcerning each of the alleged deficiencies in enactment. The Court found that any sucherror was harmless. The Court then examined the primary issues on appeal -- whetherthere were defects in the enactment process sufficient to render the ordinances void abinitio under Glen-Gery and whether the Court improperly considered the Townshipresidents reasonable reliance on the ordinances. The Court found that, even if there weredefects in the enactment process, an ordinance may be upheld if there was a lapse of timewithout challenge and reasonable reliance on the provisions of the ordinance. Here, theevidence was that interested parties have obeyed the ordinances for a significant period oftime and the Township relied on the same in issuing 3,000 permits. The ordinances atissue were 39, 33, 20, 11, 6 and 3 years old. The Court noted the huge uncertainty thatwould arise if they were suddenly declared void. The ordinances more than 8 years oldare, underSchadler v. Zoning Hearing Board of Weisenberg Township , 578 Pa. 177, 850A.2d 619 (2004), necessarily valid notwithstanding any procedural defects in enactment. Itfound that, with respect to the two newer ordinances, great turmoil would result if theordinances were deemed invalid and, therefore, declined to apply the void ab initiodoctrine to invalidate the same.

A final case-citation illustrates the applicability of the Doctrine ofLaches[sleeping on your rights];

it is again quoted extensively for reasons aforementioned {White v. Township of Upper St. Clair, Pa.

Cmwlth. No. 886 C.D. 2008, 2009; LEXIS 78 (2009)}, carrying an intuitive contrast with the instant-case:

Waiver and laches do not serve as a defense to a citizens action challenging a zoningamendment to permit a communications tower on public property where the municipalityfailed to provide sufficient information to put citizens on notice of the project.

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The Township of Upper St. Clair entered into an agreement with a communicationscompany whereby the Township agreed to lease a half acre of property in a Township-owned park for construction of a communications tower. Under the terms of theagreement, the company would provide the Township with emergency communicationsservices and pay rent for a period of 25 years, but the company was permitted to erect a

350 feet high tower and three adjoining buildings surrounded by an 8 feet high, barbedwire fence for its communications services. The Township passed zoning amendmentswhich exempted the Township and the company from all provisions of the TownshipsZoning Ordinance. Although the Township advertised the zoning amendment, theadvertisement provided no details of the purpose for the amendment or the plannedconstruction. Further, all negotiations over the lease were conducted in closed, executivesessions. After construction began, a Township resident became aware of the project,wrote a letter to the Supervisors and attended meetings objecting. The citizen filed alawsuit within 40 days of learning of the project, but the construction was complete by thetime the action was filed. The Trial Court dismissed the Complaint based on its finding thatthe citizen unreasonably delayed in bringing the action and the Township and

communications company were prejudiced as a result. The citizen appealed.

The Commonwealth Court explained that the action would be barred under the doctrine oflaches (sleeping on your rights) if there was evidence of delay arising from the citizensfailure to exercise due diligence and resulting prejudice to the Township. In determiningwhether the citizen failed to exercise due diligence, the Court had to determine when thePlaintiff knew, or by use of information within his reach, should have known about theproject. After reviewing the evidence, the Court determined that based on the Townshipsfailure to provide full and accurate information concerning the purpose and effect of thezoning amendments in the advertisements or during public meetings, the citizen could nothave known before he actually learned on October 2, 1996 of the scope and nature ofthe work. He filed the lawsuit on November 14. The Court determined that by takingaction within 40 days, despite the fact that construction was complete by the time the suitwas filed, the Plaintiff did not fail to exercise due diligence, rendering the doctrine oflachesinapplicable as a defense to the lawsuit. As a result, the Court remanded the case forconsideration of whether the Township violated the deed restrictions, the Donated orDedicated Property Act, the Ordinance or the Townships Home Rule Charter in amendingthe zoning and allowing use of property for other than recreation.

[In the instant-case, Intervenor knew what was impending a week prior to the June 15, 2011 event.]

Despite the fact that Appellant explicitly portrayed this timeliness concern as a threshold issue,

there was no discussion thereof in the Opinion. Appellant did not deny Intervenor a constitutionally-

protected right, but Intervenor did not choose to exert that right to participate before the case was heard.

WHEREFORE, Intervenors challenge to Appellants standing was impermissible, and

Intervenor should be sanctioned for having overtly tried to mislead the Court regarding key-facts .

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B. Appellant Does Not Lack Standing.The Opinion cited a case that summarized the key-concerns regarding standing in a zoning case

{Laughman v. Zoning Hearing Board of Newberry Township, Pa. Cmwlth. 964 A.2d 19 (2009)}:

Generally, in order to establish standing as an aggrieved person, it must be shown thatthe person has a substantial, direct and immediate interest in the claim sought to belitigated. A substantial interest is one in which there is some discernible adverse effect tosome interest other than an abstract interest all citizens have, and a direct interest requiresa showing that the matter complained of causes harm to the party s interest, though notnecessarily a pecuniary interest. Immediacy requires that the interest is something morethan a remote consequence and centers on a causal nexus between the actioncomplained of and the injury to the party challenging it. SeePittsburgh Trust for CulturalResources v. Zoning Board of Adjustment for the City of Pittsburgh , 145 Pa. Cmwlth. 503,604 A.2d 298 (1992). For a party to be aggrieved, the interest of the party who will be

affected by the alleged illegal law must be distinguishable from the interests shared by allcitizens. Office of Attorney General, ex. rel.Corbett v. Richmond Township, Pa. Cmwlth.917 A.2d 397 (2007).

The Opinion then concluded that standing was not warranted for two reasons (citing Laughman).

First, he noted Appellants property was not sufficiently proximate to the T-Intersection (the recognized

choke-point regarding traffic-flow between Plaintiffs property and both the FTD and the site of emergency

vehicles, both police and ambulance, as per PennDOT and multiple traffic studies over prior decades).

Second, he claimed, That the roads surrounding the Shopping Center could be more heavily congested,

is merely a concern of remote consequences, incapable of conferring standing on an individual. The first

observation is intuitive, but the second observation goes to the heart of the case, as perLaughman.

Indeed, the latter concern was fleshed-out in a 7/5/2011 court-filing by Appellant, in which the two

case-citations (the only case-citations) included in Intervenors brief were specifically refuted:

Petitioners standing is challenged, notwithstanding awareness [because a copy thereofhas been affixed to the filing] of the explicit judicial-orderapplicable in this casethatPetitioners standing not be subject to any challenge [see Point #3]; although furtherelaboration should not be needed, it is noted that both legal citations provided byMr. Kaplin are inapposite to his basic argument.

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In discussion of Spahn, [http://caselaw.findlaw.com/pa-supreme-court/1095018.html] ,disclaiming any standing simply as a taxpayer is pivotal [despite the fact that Petitionerhad not included any such assertion in any of these filings]; furthermore, the gravamen ofthe case-law (reflected in the quoted vignette, infra) does not capture the health/safetyassertions that thread through all of Petitioners filings [emphasizing that increasing

congestion at the T-Intersection choke-point would impede movement of emergencyvehicles, not just delay movement of his own automobile]:

Spahn lived approximately one and a half blocks from the subjectproperties, but that he only walked by the properties every day. Thus,the court concluded that Spahns interest was no different from theinterest common to all citizens regarding obedience to the law.

And Northampton is tangential, for Petitioner is not (nor has he portrayed himself asrepresenting) any type of community group (which might, consequently, be comprised ofpeople who themselves do not properly merit being granted formal standing status within

the judicial system)[http://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19740730_0041446.PA.htm/qx].

The conclusion asserted therein remains Appellants posture, also noting that a judge was being

requestedon an emergency basisto contravene the order of another judge, involving the same case,

entailing the same issue, and absent introduction of any new evidence that would prompt reassessment:

Therefore, the claim that Petitionerhas not alleged a substantive property right that will bedirectly affected by the FTD Ordinance and/or the FTD Map Amendment is bothcontradictory to the unambiguous judicial-order and unsupported [particularly use of theword property] in the cites.

{The experiential basis for the view by information and belief that emergency vehicles would use

the T-Intersection is based on the fact that, in the 1990s, Appellant was Abingtons Police Surgeon and

was frequently taken via police-car to the northern reaches of the Township. Walnut Street was used when

traveling to the western half of the Township; Huntingdon Road was used when traveling to the eastern half

of the Township; in both instances, use of Old York Road was eschewed. When accessing the latter route,

the police-car would traverse the T-Intersection. Envisioning what now transpires entails simply reversing

the aforementioned circumstances, for health or safety reasons. This is not the case regarding a putative

fire emergency; the local [McKinley] fire-house is located to the south of Appellants domicile.}

http://caselaw.findlaw.com/pa-supreme-court/1095018.htmlhttp://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19740730_0041446.PA.htm/qxhttp://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19740730_0041446.PA.htm/qxhttp://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19740730_0041446.PA.htm/qxhttp://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19740730_0041446.PA.htm/qxhttp://caselaw.findlaw.com/pa-supreme-court/1095018.html

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The existence of standing was summarized during the hearing {43:17}, encompassing all three

aforementioned prongs as succinctly as was possible [recalling the experience of having been repeatedly

interrupted by Intervenor]; after having recapitulated why the two cases cited in Intervenors brief were

inapposite to the claim that Appellant lacked standing, the positive/assertive posture was articulated:

[M]y standing goes to the heart of a major problem I had, that is the emergency vehicularmovement which is, by the case of Realan vs. Upper Merion, the central case in thissituation. And the police power has to be exerted in order to protect the health and welfareof the citizenry. And that means being specifically included in both the ordinance and inthe statute, as well as cited in the case-law, the fact that emergency vehicles have to beable to traverse that system; meaning, that intersection, that choke-point; meaning, policeand ambulance. When I have my heart attack, I want to make sure they get there asquickly as they can, to get me over to the hospital.

[Intervenor: I represented Realan, the case Dr. Sklaroff is talking about. It is a spot zoningcase. It has nothing to do with what he is talking about.]

Thats not true, because [in] the opinion explicitly stated are the police power exertionissues. It is allegedly a negative spot zoning issue in terms of how it was adjudicated, butcentral in the opinion is reference to this mandate.

In ruling on preliminary objections, the court must accept as true all well-pled allegations of material

fact as well as all inferences reasonably deducible therefrom {Department of General Services v. Board of

Claims, Pa. Cmwlth. 881 A.2d 14 (2005)}. Because none of the aforementioned assertions was refuted

[indeed, none was challenged], their credibility cant be questioned and must be honored [albeit belatedly].

In short, when dealing with standing, the extensive documentation in the filing must be duly honored; here,

the factual information regarding emergency vehicular congestion simply cannot be ignored.

Each of the three identified criteria supra has been met in the exhaustively-documented filing,

noting that additional documentation of the analysis of the T-Intersection has been accrued via discovery

and was to have been introduced during the substantive hearing process (aborted after one session). And,

as was the case prior to the emergency hearing, Appellant invites Appellee and Intervenor to identify any

case-law that is on-point with specific regard to the health/safety assertions that are interlaced herein.

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(i) Substantial: There is some discernible adverse effect to some interest other thanan abstract interest all citizens have.

The discernible non-abstract adverse effect (not shared by all citizens) is the predictable increase

in the transit time between police station or hospital and Appellants domicile. All traffic studies have shown

the T-Intersection is maximally-congested during the day [not just occasionally], so grossly enhancing

traffic-flow would predictably delay the capacity of emergency vehicles to traverse the intersection and

violate facts in the Old York Road Corridor Improvement Study and the Abington Comprehensive Plan.

(ii) Direct: The matter complained of causes harm to the partys interest, though notnecessarily a pecuniary interest.

Appellant perceives hispersonal health and safetyto be akin to a property interest that

does not easily comport with customary fiscal motives. This was validated when the Harrisburg

School District was granted standing because it is certainly affected because, other than levying

taxes, the affairs of operating the school district have been taken away from it {Harrisburg School

District v. Hickok II III IV. 761 A.2d 1132 (2000)}. This judgment is not predicated on Appellants

residing any particular distance from the FTD (and the T-Intersection); rather, it is based on

specific geographic criteria that Appellant has painstakingly documented and asserted. Enhanced

congestion at an already maximally-congested intersection would delay arrival (to Appellants

domicile) of emergency vehicles from the Abington Police Department and Memorial Hospital.

(iii) Immediate: The interest is something more than a remote consequence andcenters on a causal nexus between the action complained of and the injury to theparty challenging it.

This criterion has also been exhaustively pled and argued, in multiple venues, in myriad ways.

Within the [revised] Procedural Substantive Petition [ 138], it was summarized thusly:

The tenet here is sic utere tuo ut alienum non laedas namely, persons must usetheir property so as not to harm that of others; this is akin to the medical-precept[from the Hippocratic Oath] that doctors recognize Primum non nocere namely,the first priority is to do no harm.

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Indeed, Realen includes specific citation of the key-criteria [which Intervenor had apparently

forgotten, despite his claim to have been involved in this litigation] when citing fundamental law that must

be applied to all zoning cases [including reverse spot-zoning], as per statute, ordinance and common-law:

Property owners have a constitutionally protected right to enjoy their property.Thatright, however, may be reasonably limited by zoning ordinances that are enacted bymunicipalities pursuant to their police power, i.e., governmental action taken to protector preserve the public health, safety, morality, and welfare. Cleaver [v. Board ofAdjustment], [*728] 200 A.2d [408] at 411-12 [(Pa. 1964)] (it is well settled that [the]Constitutionally ordained right of property is and must be subject and subordinated tothe Supreme Power of Governmentgenerally known as the Police Powerto regulate or prohibit an owners use of his property). [**22] Where there is aparticular public health, safety, morality, or welfare interest in a community, themunicipality may utilize zoning measures that are substantially related to the protection

and preservation of such an interest. National Land and Investment Co. v. EasttownTownship Board of Adjustment, 419 Pa. 504, 215 A.2d 597, 607 (Pa. 1966); see also53 P.S. 10603(a) (zoning ordinance should reflect the needs of the citizens and thesuitability and specific nature of particular parts of the municipality).

To be maximally explicit [risking a certain redundancy to ensure the point is made unambiguously],

the nexus is emergency vehicular movement, the core-concern with the Ordinances [although many

other issues were raised during the first session of the Abington Zoning Hearing Board, citing the adverse

report of the Montgomery County Planning Commission] and the reason why standing is intuitively justified.

WHEREFORE,Appellants standing was supported by both statute and case-law, for he has

a direct, substantial and immediate interest in whether the FTD is ultimately effectuated.

C. Discussion.Thispro-se litigant has attempted to identify all case-law that would validate this standing posture;

in doing so, a web-page was identified that purported to cite all major cases related to this controversy

[http://www.landuselawinpa.com/court/ruling_validity.shtml] (noting that its disclaimer advises acquisition of

formal professional input). The searchKey Topic: Zoning Validity Challenges yielded twenty-seven (27)

citations; they were provided alphabetically. Cases that address standing have been detailed initially,

while the others are included solely with the summary provided upon the web-site (for completeness).

http://www.landuselawinpa.com/court/ruling_validity.shtmlhttp://www.landuselawinpa.com/court/ruling_validity.shtml

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The annotations were generated after due-diligence study, tethering the essence of each matter to

the substantial-direct-immediate tests explored supra; tangential issues (e.g., zone of interest) and those

related solely to Philadelphia (e.g., taxpayer status in the S.C.R.U.B. case) have not been listed, although

redundant cases (already reviewed supra) are noted (but are not subject to any further discussion).

{Because most of these cases do not relate to standing and are only being noted informationally,

they are not included in the formal Citation listing that has been generated, based solely on this Brief.}

(i) Standing-Related Cases.A property owners concerns about the impact of future development on his land were too remote

to establish standing to challenge the validity of a zoning ordinance {Alexander v. Zoning Hearing Board of

Mount Joy Township (2008)}. The summary of the database does not comport with that in the instant case:

A cursory review of the sections of the Ordinance which Alexander challenges reaffirmsthe Boards conclusion. For instance, Alexander seeks to challenge the dimensionalrequirements for zoning districts within the Township. His challenge to the dimensionalrequirements is not based on the effect of those dimensional requirements upon hisproperty. Rather, he apparently takes issue with the effects of the dimensional provisionson subdivisions with which he has no direct connection other than that generally shared asa member of the Township.

An exhaustive review of the record reveals a paucity of information concerning theproximity of Alexanders property to the proposed developments which he is apparentlychallenging. His claims of massive amount of development right up the road do lit tle tohelp this Court address the issue of standing. Moreover, his claim of being aggrievedconsists of speculative possible future harm.

Lot size requirements must be economically reasonable {Fisher v. Viola, Jr., et. al. 789 A.2d 782,

Pa Cmwlth (2001)}. This case includes an observation that relates to the overall basis for Appellants

litigation and, thus, is preserved herein (recalling facts in the Study and the Plan): Regulatory ordinances

do not have to be supported by studies to establish a nexus between the lot size and the public s health,

safety and welfare, so long as the ordinances are consistent with the comprehensive plan which

extensively sets out the communitys goals. Regulation of slope, grade and impermeability are reasonable

to promote preservation of the environment and to protect against erosion and landslide problems.

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(ii) Other Zoning-Related Cases.Enactment of zoning ordinance is a legislative act {Apgar v. ZHB of Manheim (1995)}.

Evidence that the Township solicitor followed customary office procedures for mailing letters was

sufficient evidence that the township complied with the requirements of the MPC for forwarding

amendments to ordinances within 30 days of enactment even though there was no evidence of actual

receipt by the planning department {Appeal of: Rural Route Neighbors (2008)}.

Zoning ordinances regulating oil and gas operations, including restrictions on lot size, setback

requirements and environmental protections, constitute traditional zoning which may be challenged only

through the statutory zoning appeal procedure in the MPC. The Common Pleas Court could not exercise

equitable jurisdiction to review the same unless the challenger first exhausted the appeal procedure in the

MPC {Arbor Resources Limited Liability Co. v. Nockamixon Township (2009)}.

Rezoning distinguished from validity challenges {Baker v. Chartiers Township (1994)}

Size and deviation from comprehensive plan are factors to determine spot zoning {Baker v.

Chartiers Township ZHB (1996)}.

Under the Equal Protection Clause of the United States Constitution, the threshold question of

whether a use is unconstitutionally excluded from a particular zone is to determine whether the use is

similar in kind to uses permitted in the zone {Congregation Kol Ami v. Abington Township (2002)}.

A Federal law prohibits a zoning ordinance that substantially burdens religious exercise

{Congregation Kol Ami v. Abington Township (2004)}.

A municipality may impose disparate restrictions on equivalent uses within different zones {Crystal

Forest Associates v. Buckingham Township Supervisors (2004)}.

Non-agricultural conditional and accessory uses do not undercut the validity of a Zoning Ordinance

enacted to preserve active and productive agricultural lands {Ethan-Michael, Inc. v. Union Township Bd. of

Supervisors (2007)}.

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A sign ordinance limiting signs to twenty five square feet does not unconstitutionally exclude

industry standard sized billboards {Exeter Township v. Exeter Twp. Zoning Hearing Board(2006)}.

Use of property for Alcoholics Anonymous meetings did not constitute office use under zoning

ordinance, and Zoning Hearing Boards exclusion of such use was not a violation of the Federal Religious

Land Use and Institutionalized Persons Act {Glenside Center, Inc. v. Abington Township Zoning Hearing

Board(2009)}.

Section 609(e) of the MPC requires a governing body to submit each revision of a proposed zoning

amendment to the county planning commission for review {Hanover Healthcare Plus, Inc. v. Zoning

Hearing Board of Penn Township (2005)}.

A zoning ordinance that limits the expansion of mining activities is not per se invalid for failing to

provide for reasonable mineral development if the governing body completed the appropriate balancing

analysis under Section 603 of the MPC {Hanson Aggregates Pennsylvania, Inc. v. College Township

Council(2006)}.

A municipality did not abuse its discretion by adopting a more restrictive ordinance with respect to

flood plain boundaries than that required by FEMA {In re: Schieber(2007)}.

Exclusionary zoning of public schools {Jim Thorpe Area School District v. Kidder Township (1999)}.

An ordinance requiring connections to public water is not a state created danger {Johnson v. The

Township of Plumcreek}.

An ordinance restricting development in an R-1 District to one unit per two acres was not invalid or

subject to curative amendment where the restriction was reasonably related to the Township s interest in

protecting the public health, safety and welfare and the Ordinance did not completely exclude a legitimate

use {Keinath v. Township of Edgmont(2009)}.

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The complete prohibition of off-site billboard advertising is unconstitutional; a successful

constitutional challenge does not automatically entitle the challenger to a variance {Lamar Advertising v.

Borough of Deer Lake Zoning Hearing Board(2007)}.

Zoning for agricultural preservation districts survives multiple challenges {McGonigle v. Lower

Heidelberg Township ZHB (2004)}.

Communications towers are protected under the Federal Telecommunications Act {Omnipoint

Communications Enterprises v. ZHB of Easttown Township (2001)}.

A municipality does not have the power to compel the underground installation of electric utilities

{Pa. Power Co. v. Township of Pine (2007)}.

Multi-step, multi-factor test and scope of review for partial exclusionary zoning of multi-family

dwellings {Surrick v. Zoning Hearing Board of Upper Providence Township (1978)}.

(iii) Redundant Cases.Challenges to the validity of zoning ordinances based on the void ab initio doctrine were rejected

based on the period of time of acquiescence the period the ordinances survived without challenge, the

reasonable reliance on the provisions of the ordinances by Township residents and the potential turmoil

that would result upon declaring the ordinances void based on procedural defects in enactment {Geryville

Materials, Inc. v. Lower Milford Township Zoning Hearing Board (2009)}.

Reverse spot zoning {In reAppeal of Realen Valley Forge Greens Associates (2003)}.

Uses in zoning ordinance prevail over uses stated in the comprehensive plan {In re Realen Valley

Forge Greenes Associates (2001)}.

A third party seeking to challenge a judicially-approved settlement of a zoning appeal must

intervene in the underlying action to have standing {The Boeing Co. v. Zoning Hearing Bd. of Ridley Tp.

(2003)}.

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Waiver and laches do not serve as a defense to a citizens action challenging a zoning amendment

to permit a communications tower on public property where the municipality failed to provide sufficient

information to put citizens on notice of the project {White v. Township of Upper St. Clair(2009)}.

(iv) Overview [Elaboration, Clarifications, Disclaimers, Postulates].The Opinionhaving failed to address points in both paper-filings and oral-argumentreflected a

dismissive, abbreviative case-analysis. It should be reversed expeditiously so that Ordinances can be

adopted that allow for safe, methodical and legal development of the Fairway; this is a priority because the

FTD could serve as a model for other regions of Abington [indeed, of the Delaware Valley].

{It is necessary to clarify misapprehensions cited in the hearing transcript. The T-Intersection is

not a five-way intersection {15:16}; it is a three-way choke-point. This challenge does not constitute an

attack on Intervenor {9:14}; it is filed against Appellee, for the commonweal. Intervenor validated the

importance of acquiring support from both planning commissions {17:12}; the FTD garnered unambiguous

endorsement from neither. Appellants litigation-history was crassly misportrayed {18:18 et seq.}, but it is

not considered germane to refute each attack and innuendo that Intervenor reluctantly asserted.}

One approach adopted by this pro se Appellant must be definitively clarified. It is granted that

Appellants initial filing was somewhat lengthy, but all pleadings included therein were documented and it

included a complete database for future-reference. Appellant decided to err on the side of caution and,

thus, to minimize risk that a subsequent filing (based on a putative claim that the pleadings had somehow

been insufficient) would not be honored. The rationale for this strategic approach can be explained further,

upon request, although it is anticipated that details within this filing can be invoked to corroborate claims

regarding traffic-congestion (in particular); again, these data must be assumed to be correct, for now. And,

if a map of the region is needed to corroborate claims regarding the pathway taken by emergency vehicles,

this can be supplied and annotated [http://www.mapquest.com/#dd1d179026cb268ec62058df] to illustrate

what prompted Appellant to become involved in this controversy, starting almost two years ago.

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{This document was cross-filed with the Montgomery County Court of Common Pleas, noting the

appeal of standing before the Abington Zoning Hearing Board has been separately docketed. It was felt

to be necessary to spend another $252.50 to do so, to preclude any legal filing that would somehow serve

to invalidate this component of the validity challenge. No effort has been made to avoid involvement of

Judge Del Riccifor it was Intervenor who filed for the Emergency Hearingnor would there be any

reason for Appellant to have done so in the past. In any case, Court Administration has confirmed that

the remand/appeal of the Zoning Board orderinitiated by Judge Del Riccis prior orderwill be referred to

Judge Del Ricci (rather than to any other judge) for prompt clarification of his intent regarding standing.

Unlike the misconception repeatedly articulated by Intervenor, Appellant wishes to expedite this process;

that is why this filing was initially prepared, within one working-day of having received a copy of the Opinion

filed by Judge Moore (and prior to having been notified that the Certified Record had even been remitted

from Norristown to Harrisburg). Any further challenge to Appellants motives should be articulated forthwith

because, just as is being accomplished at this time, Appellant is eager to quash this venal rumor-mill.}

And overt misrepresentation of known-facts should be referred to the Disciplinary Board of the

Supreme Court of Pennsylvania. Perhaps he felt this behavior would be overlooked by a pro se litigant;

perhaps he thought bombast [repeatedly hurling grossly-inaccurate ad hominemattacks against Appellants

character at the hearing, using a McCarthy-like method of waving allegedly-condemnatory papers without

filing any of them] would sway judicial opinion. Regardless, he filed a false statement and must atone.

This sub-argument has not been proffered due to Intervenors [mis]conduct during the hearing; rather, it is

based on the accumulation of data that he cynically had conjured [beforehand, as well] to avoid scrutiny.

Prior to concluding this discussion, two observations are of-interest, to ensure full-disclosure of the

databaseand the cogent analysis thereofhas been documented; one relates to the disciplinary issue

[Doctrine of Laches] and one relates to the standing issue [referring to how the term might be parsed].

These final comments are proffered prophylactically, so that Appellee/Intervenor can respond accordingly.

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It is possible to sketch-out a purported time-line that would explain what transpired regarding the

preparation of Intervenors 7/5/2011 filing. It is entirely plausible that Appellee did not apprise Intervenor of

the fact that Appellee had divulged the fact that Appellee had informed Intervenor of the 6/15/2011 hearing

during the week prior to the hearing. This had been blurted-out in-chambers [with only two witnesses,

Appellant and Judge Del Ricci, having heard this confession]. It had been uttered after Judge Del Ricci had

admonished Appellee for having ignored Appellants filings due to alleged technicalities [titles, service, etc.],

and the Appellants quotation uttered immediately prior thereto [Yeah, right, The dog ate my homework!

constitutes your excuse, eh?] may have triggered its having been inadvertently divulged. Thus, it may be

assumed that Appellee would have felt embarrassed to have detailed what had transpired, perhaps having

even chosen to forget what he had admitted. That may be why Intervenor felt he could submit falsehoods.

The second component of what may have transpired might have been triggered by Appellants

having included Judge Del Ricci among his subpoenaed witnesses, inasmuch as no one else had been

within earshot when Appellee had revealed what he had done [noting that this action was unprecedented].

Appellee and Intervenor were therefore confronted with the prospect that any deviation from the truth would

be contravened immediately by a judge [unaware that Judge Del Ricci had gently advised Appellant orally

that serving him may not be the wisest action, with both parties having avoided ex parte case-discussion].

Thus, they undoubtedly felt that it would be preferable to be candid than to risk immediate embarrassment.

This, then, explains why the court-transcript before Judge Moore contains a joint-admission that

Intervenor had decided not to become involved prior to 6/15/2011; the transparent justification for inaction

[compromising the interests of his client, in the view of Appellant] was probably hastily conjured [citing the

length of Appellants filing, despite the fact that the bulk thereof constituted appended documents, such as

the complete transcripts of the three official dates when the publics input had been formally transcribed].

Of course, this theory does not explain why Mr. Kaplin felt he would have license to lie to the Court,

other than to try to preclude use of the argument contained herein [his violation of the Doctrine of Laches].

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The second explanation is perhaps more subtle, akin to the Clintonesque quotations related to the

Monica Lewinsky affair [It depends upon what the definition of is is.]. Despite the fact that the statement

from Judge Del Ricci states that Appellants standing was to be immune from challenge, Appellee and

Intervenor claimed this was only to apply to the capacity to file the document, and not to any global status.

Of course, had Judge Del Ricci wanted to achieve that end, he could have evaded use of the loaded term

of standing, when issuing his order [e.g., saying, simply, that Appellants capacity to file would not be

subject to challenge]. But he didnt avoid the term; his extensive pre-judicial career [as a township solicitor

with extensive experience with municipal zoning law and, thus, with exigencies of standing challenges]

suggests he knew precisely what he was saying, when he said it [and Appellee didnt opt to challenge it].

WHEREFORE,Appellants standing survives due-diligence analysis of all available cases;

furthermore, every possible effort has been made by Appellant to ensure a complete and accurate

record has been submitted for expeditious review by the Commonwealth Court.

Conclusion and Relief Sought

WHEREFORE, Petitioner respectfully requests that this Honorable Court (1)reverse the order to

quash Appellants standing [citing either/both arguments detailed herein, relating to the Doctrine of

Laches and to Standing] and (2)refer the professional misconduct concern as to Marc B. Kaplin, Esq.

for study by the Disciplinary Board of the Supreme Court of Pennsylvania, for mutually exclusive analysis.

Respectfully Submitted:

Robert B. Sklaroff, M.D.Robert B. Sklaroff, M.D.1219 Fairacres RoadRydal, Pennsylvania 19046-2911October 17, 2011

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Certificate of Service

I certify I mailed first-class and e-mailed TWO true-and-accurate copies of this filing to the following people,on 10/17/2011:

Robert Rex Herder, Jr., EsquireAttorney ID # 38827Bresnan & Herder311 Lindenwold Avenue Ambler, PA 19002herder502@hotmail.com

Marc B. Kaplin, EsquireKaplin Stewart Meloff Reiter & Simon, P.C.Union Meeting Corporate Center

910 Harvest DriveP.O. Box 3037Blue Bell, PA 19422-0765DArbuckle@kaplaw.com

Bruce J. Eckel, Esquire2209 Mt. Carmel AvenueGlenside, PA 19038bjeckel@netzero.com{courtesy copy}

Robert B. Sklaroff, M.D.Robert B. Sklaroff, M.D.

10/17/2011

mailto:herder502@hotmail.commailto:DArbuckle@kaplaw.commailto:bjeckel@netzero.commailto:bjeckel@netzero.commailto:DArbuckle@kaplaw.commailto:herder502@hotmail.com

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Certificate of Service

I certify that I mailed first-class and e-mailed a true-and-accurate copy of this filing to the following people,on 10/17/2011:

Robert Rex Herder, Jr., EsquireAttorney ID # 38827Bresnan & Herder311 Lindenwold Avenue Ambler, PA 19002herder502@hotmail.com[for the Appellee]

Marc B. Kaplin, Esquire

Kaplin Stewart Meloff Reiter & Simon, P.C.Union Meeting Corporate Center910 Harvest DriveP.O. Box 3037Blue Bell, PA 19422-0765DArbuckle@kaplaw.com[for the Intervenor]

Bruce J. Eckel, Esquire2209 Mt. Carmel AvenueGlenside, PA 19038bjeckel@netzero.com[courtesy copy]

Robert B. Sklaroff, M.D.Robert B. Sklaroff, M.D.

10/17/2011

mailto:herder502@hotmail.commailto:DArbuckle@kaplaw.commailto:bjeckel@netzero.commailto:bjeckel@netzero.commailto:DArbuckle@kaplaw.commailto:herder502@hotmail.com