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Carlson v. Ciavarelli

Commonwealth Court of Pennsylvania

September 17, 2014

John Carlson, Marilyn Carlson, Anne Gallen, John Green, Bob Kachnycz, Rob McNeil, Theresa McNeil, Gail Moyer, Tom Moyer, Theresa Orsini, Paul Gallen, and Rose Valley Neighbors Association
v.
William Ciavarelli and Joseph Stevens and Upper Dublin Township; Appeal of: William Ciavarelli

Argued June 20, 2014

Page 732

Appealed from No. 2012-02833. Common Pleas Court of the County of Montgomery. Braxton, Senior Judge.

Michael P. Coughlin, Blue Bell, for appellant.

Edward M. Wild, Doylestown, for appellees.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

ANNE E. COVEY, Judge.

Page 733

William Ciavarelli (Ciavarelli) appeals from the Montgomery County Common Pleas Court's (trial court) November 1, 2013 order denying his Motion for Hearing to Determine Immunity (Immunity Motion) and declaring that he is not immune from claims asserted in a Petition to Assess Counsel Fees (Petition) filed by Rose Valley Neighbors Association (Association).[1] The issues for this Court's review are: (1) whether the trial court erred by holding that Ciavarelli was not entitled to immunity under what is commonly referred to as the Environmental Immunity Act (Act)[2] for the claims in the Association's Petition; and (2) whether the trial court erred by considering evidence and conduct that occurred before September 21, 2011, the date Ciavarelli filed his special exception application, when deciding Ciavarelli's Immunity Motion.[3] Upon review, we affirm

Ciavarelli owns 5.09 acres of real property located at 951 East Butler Pike in Upper Dublin Township (Township) on which he operates a funeral home (Property). Ciavarelli resides on the second floor of the funeral home. In 2007, Ciavarelli filed a plan to subdivide the Property into two lots, one for the existing funeral home/residence, and the other for an additional single-family dwelling, a pool house and a pool. Reproduced Record (R.R.) at 57a. After the Township identified certain violations of the Township's Zoning Ordinance of 1956 (Township Ordinance) and its Subdivision and Land Development Ordinance (SALDO) in the proposed subdivision plan (primarily those prohibiting more than one principal dwelling on a property), Ciavarelli withdrew the plan. In May 2008, Ciavarelli hired architect Joseph Stevens (Stevens) who prepared plans for a two-story residence for Ciavarelli's son complete with second-floor bedrooms and bathrooms to be located on the Property. Thereafter, Stevens re-drafted the plans removing the second floor bathrooms and bedrooms and designating that space for

Page 734

" storage only." See R.R. at 103a, 389a-390a, 414a-415a. The building was labeled a poolside " cabana" and garage not intended for residential occupancy which the Township permitted as an accessory structure.[4]

In December 2008, Ciavarelli applied to the Township's zoning hearing board (ZHB) for a building permit. Although initially denied because the proposed cabana's atypical size lent itself to expansion of the funeral home use, the Township ultimately granted the building permit on June 4, 2009, and Ciavarelli commenced building.

On November 13, 2009, the Township issued a Notice of Determination (Notice) based, inter alia, upon information that Ciavarelli was constructing three bathrooms on the cabana's second floor, which had been approved for storage only. See R.R. at 64a. The Notice stated that " the Township will deny any plans to install bathrooms on the second floor as a deterrent to any residential use of the building, which is prohibited." R.R. at 64a. The Notice warned Ciavarelli that ongoing construction violated Township Ordinance Section 255-27, and would result in a Stop Work Order. By December 9, 2009 letter, the Township notified Ciavarelli that, based upon its December 4, 2009 inspection, there was plumbing installed on the second floor to accommodate bathrooms, and there were room partitions and three walk-in closets for which permits had not been obtained. On December 11, 2009, the Township issued a Stop Work Order. Ciavarelli appealed to the ZHB. The Association intervened claiming that Ciavarelli intended to construct a second principal dwelling on the Property. In March 2010, Ciavarelli withdrew his appeal, removed some pipes and capped off the second-floor plumbing. Construction of the cabana was completed, and a temporary occupancy permit was issued in August 2010. In May 2011, the Township issued a final certificate of occupancy.

On September 21, 2011, Ciavarelli filed an application with the ZHB seeking a special exception to convert the cabana's second floor into an accessory residential dwelling for his son (Application) pursuant to Township Ordinance 255-27.E.[5] The Association and the Township intervened and opposed Ciavarelli's Application.

The Association requested pursuant to a ZHB-issued subpoena that Ciavarelli and Stevens produce documentation of the size,

Page 735

cost and intended use of the cabana to support its purported accessory and customarily incidental nature. A hearing was held before the ZHB on November 28, 2011. The ZHB re-convened on December 19, 2011 and January 23, 2012 to allow Ciavarelli and Stevens to produce the subpoenaed documentation, but they did not. Ciavarelli and Stevens refused to produce the requested documents on the basis that the request was overly broad, and unrelated and irrelevant to the Application. On February 9, 2012, the Association filed a petition with the trial court to enforce its subpoena. The trial court scheduled a hearing for February 14, 2012. However, due to negative publicity and what Ciavarelli deemed an uphill battle, he withdrew his Application on February 13, 2012, the day before the hearing.

On February 21, 2012, the Association filed its Petition seeking counsel fees in excess of $20,000.00 from Ciavarelli and Stevens[6] pursuant to Section 2503 of the Judicial Code, 42 Pa.C.S. § 2503, stating:

Ciavarelli intentionally engaged in conduct, commencing various matters and otherwise, that is dilatory, obdurate, vexatious, fraudulent, frivolous and in bad faith, in violation of 42 Pa.C.S.[] § 2503[,] and [Stephens] refused, inter alia, to abide by a duly issued subpoena without any justification, such that [the Association] is entitled to the recovery of counsel fees and costs expended.

R.R. at 46a. Ciavarelli denied that the Association was entitled to counsel fees, inter alia, because he was immune from civil liability pursuant to the Act and the Noerr-Pennington Doctrine.[7]

On April 23, 2012, Ciavarelli filed his Immunity Motion. The Association opposed the Immunity Motion. The trial court held a hearing on August 13, 2013. On November 1, 2013, the trial court denied and dismissed Ciavarelli's Immunity Motion. On November 5, 2013, Ciavarelli appealed to this Court.[8]

1. Immunity

Ciavarelli first argues that the trial court erred as a matter of law and/or abused its discretion by ruling that he was

Page 736

not entitled to immunity under the Act for the claims in the Association's Petition. The Pennsylvania Supreme Court has declared:

A trial court must utilize a two-step process in analyzing an immunity claim raised pursuant to the [Act]. First, the party seeking immunity must make a threshold showing the cause of action arose because he
[f]ile[d] an action in the courts of this Commonwealth to enforce an environmental law or regulation . . . or made an oral or written communication to a government agency relating to enforcement or implementation of an environmental law or regulation . . . where the action or communication is aimed at procuring favorable governmental action.
27 Pa.C.S. § 8302(a). If the court determines [that] this threshold is satisfied, the party opposing immunity must then demonstrate one of the statutory exceptions applies, id., § 8302(b), or that some other overriding legal basis defeats the immunity claim. . . . The court shall hold a hearing if the party seeking immunity files a motion requesting a hearing. 27 Pa.C.S. § 8303.

Pennsbury Vill. Assocs. v. McIntyre, 608 Pa. 309, 11 A.3d 906, 912 (Pa. 2011) (emphasis added).

a. Communications

Ciavarelli asserts that the Township and the ZHB are governmental agencies under the Act, and Ciavarelli's communications described in the Petition relate to his compliance with the Township's ordinances designed to protect and govern the Township's environment, including those related to storm water, erosion and sedimentation control, lighting and landscaping. Therefore, the trial court erred by holding that Ciavarelli's Application did not involve the implementation and enforcement of an environmental law and regulations protected by statutory immunity under the Act. However, neither the Act nor the record supports Ciavarelli's position.

Section 8301 of the Act defines the terms " communication to the government" and " government agency" as follows:

'Communication to the government.'

A written or oral statement or writing made:

. . . .
(3) to a government agency in connection with the implementation and enforcement of environmental law and regulations.
. . . .
'Government agency.'

The Federal Government, the Commonwealth and any of the Commonwealth's departments, commissions, boards, agencies, authorities, political subdivisions or their departments, commissions, boards, agencies or authorities.

27 Pa.C.S. § 8301. Thus, in order to be a communication for which immunity may be afforded under Section 8302(a) of the Act, the communication must be (1) " to a government agency" and (2) " in connection with the implementation and enforcement of environmental law and regulations." 27 Pa.C.S. § 8301; see also 27 Pa.C.S. § 8302(a) (" relat[ed] to enforcement or implementation of an environmental law or regulation" ). Because the Township is a political subdivision and the ZHB is its board, they fall under the definition of " government agency" such that any oral and written statements Ciavarelli made to them " in connection with the implementation and enforcement of environmental law and regulations" would constitute " communication to the government" to gain " favorable governmental action." 27 Pa.C.S. § 8302.

Page 737

Copies of photographs, plans, applications, letters, certificates and the transcript from the November 28, 2011 ZHB meeting were introduced at the Immunity Motion hearing. Ciavarelli's counsel also testified regarding the entire history of the Ciavarelli's land use and zoning actions related to the cabana construction, and admitted that she advised Ciavarelli and Stevens not to produce documents in response to the Association's subpoena. Based upon the evidence, the trial court properly concluded that Ciavarelli's zoning applications " [p]lainly . . . do not" involve the implementation and enforcement of and environmental law and regulations and, citing Penllyn Greene Associates, L.P. v. Clouser, 890 A.2d 424 (Pa. Cmwlth. 2005), that zoning and land use proceedings are not the type of action protected by the Act's statutory immunity.

In the Act's preamble, the General Assembly declared:

(1) It is contrary to the public interest to allow lawsuits, known as Strategic Lawsuits Against Public Participation (SLAPP), to be brought primarily to chill the valid exercise by citizens of their constitutional right to freedom of speech and to petition the government for the redress of grievances.
(2) It is in the public interest to empower citizens to bring a swift end to retaliatory lawsuits seeking to undermine their participation in the establishment of State and local environmental policy and in the implementation and enforcement of environmental law and regulations.

Preamble to the Act of December 20, 2000, P.L. 980 (quotation marks omitted). Section 8301 of the Act defines those actions as follows:

'Enforcement of environmental law and regulation.'

Activity relating to the identification and elimination of violations of environmental laws and regulations, including investigations of alleged violations, inspections of activities subject to regulation under environmental law and regulations and responses taken to produce correction of the violations.[9]

. . . .
'Implementation of environmental law and regulation.'

Activity relating to the development and administration of environmental programs developed under environmental law and regulations.[10]

27 Pa.C.S. § 8301. " Environmental law and regulation" is not defined in the Act.

" The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a).

'[T]he General Assembly's intent is best expressed through the plain language of the statute.' Commonwealth v. Brown, . . . 603 Pa. 31, 981 A.2d 893, 897) . . . . Therefore, when the terms of a statute are clear and unambiguous, they will be given effect consistent with their plain and common meaning. 1 Pa.C.S.[] § 1921(b) . . . .

Page 738

This means ascribing to the particular words and phrases the definitions which they have acquired through their common and ...

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