Petition for Writ of Certiorari — Allan J. Nowicki, Petitioner v. Tinicum Township, et al.

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FILED

ALLAN J. NOWICKI,

Petitioner,

v.

TINICUM TOWNSHIP, BUCKS COUNTY, PA.,

NICHOLAS FORTE, TINICUM TOWNSHIP

SUPERVISOR, NICHOLAS FORTE, LINDA M.

McNEILL, TINICUM TOWNSHIP MANAGER,

LINDA M. McNEILL, STEPHEN B. HARRIS, ESQUIRE,

HARRIS AND HARRIS, TOWNSHIP SOLICITOR,

TOM FOUNTAIN, P.E., KEYSTONE MUNICIPAL

ENGINEERING, INC., TOWNSHIP ENGINEER

BHAWN McGLYNN, KEYSTONE MUNICIPAL

SERVICES, INC., LLC, BOYCE BUDD, GARY V.

PEARSON, DELAWARE VALLEY LANDSCAPE

STONE, INC., JOSEPH BUSIK, J. KEVAN BUSIK,

KEITH KEEPING, BUNNIE KEEPING,

EASTBURN AND GRAY, PC., MICHAEL J. SAVONA,

MICHAEL E. PETERS, ESQUIRE, MICHAEL T.

PIDGEON, ESQUIRE, JAMES J. SABATH,

JAMES J. SABATH, CHIEF OF POLICE,

FEB 0 3 2022

officeofthecleRK

Respondents.

On Petition For A Writ Of Certiorari

To The Commonwealth Court Of Pennsylvania

PETITION FOR A WRIT OF CERTIORARI

Allan J. Nowicki, Pro-se

P.O. Box 238

Erwinna, PA 18920

610-405-0320

nowickiaj@yahoo.com

Pro-se Petitioner

RECEIVED

FEB -8 2022

j

1

QUESTIONS PRESENTED

(1) Is it unlawful to advance the Political agenda

of a Pennsylvania Municipality by violating the Civil

Rights of its resident?

(2) Is it unlawful for a Pennsylvania Municipal­

ity to conspire with others to commit fraud upon the

Court in order to take away the property rights of a

resident?

(3) Is it unlawful to deny a pro-se litigant his day

in court before a jury of his peers based on technicali­

ties of pleadings and not based on the merits of the

case?

(4) Will the decision of the Court cause the public

to lose confidence in our Judicial system and the Rule

of Law?

, *,

■

11

PARTIES TO THE PROCEEDING

Petitioner Allan J. Nowicki was the Plaintiff in the

Bucks County Court of Common Pleas appearing at

Case Number 2015-01776 and Appellant in the Com­

monwealth Court of Pennsylvania appearing at Case

Number 1749 C.D. 2019.

Respondents Tinicum Township, Bucks County,

Pa., Nicholas Forte, Tinicum Township Supervisor,

Nicholas Forte, Linda M. McNeill, Tinicum Township

Manager, Linda M. McNeill, Stephen B. Harris, Es­

quire, Harris and Harris, Township Solicitor, Tom

Fountain, P.E., Keystone Municipal Engineering, LLC,

Township Engineer, Shawn McGlynn, Keystone Mu­

nicipal Services, Inc., Boyce Budd, Gary V. Pearson,

Delaware Valley Landscape Stone, Inc., Joseph Busik,

J. Kevan Busik, Keith Keeping, Bunnie Keeping, Eastburn and Gray, PC., Michael J. Savona, Michael E. Pe­

ters, Esquire, Michael T. Pidgeon, Esquire, James J.

Sabath, James J. Sabath, Chief of Police were the De­

fendants in the Bucks County Court of Common Pleas

and the Appellees in the Commonwealth Court of

Pennsylvania.

Ill

RELATED CASES

Tinicum Township v. Allan J. Nowicki and River Road

Quarry, LLC v. River Road Quarry, LLC and Pennswood Hauling, LLC in the Commonwealth Court of

Pennsylvania No. 2176 C.D. 2012.

Tinicum Township v. Nowicki, et al., in the Common­

wealth Court of Pennsylvania No. 2114 C.D. 2014.

Tinicum Township v. Nowicki, et al., in the Common­

wealth Court of Pennsylvania No. 734 C.D. 2015.

Tinicum Township v. Allan J. Nowicki in the Bucks

County Court of Common Pleas No. 2018-06609.

IV

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................................

1

PARTIES TO THE PROCEEDING.......................

11

RELATED CASES..................................................

111

TABLE OF CONTENTS........................................

IV

TABLE OF AUTHORITIES...................................

vi

PETITION FOR A WRIT OF CERTIORARI......

1

OPINIONS BELOW................................................

1

JURISDICTION................................................:.....

1

STATUTES AND CONSTITUTIONAL PROVI­

SIONS INVOLVED..............................................

2

INTRODUCTION AND STATEMENT OF THE

CASE.....................................................................

2

REASONS FOR GRANTING THE PETITION....

6

CONCLUSION.........................................................

11

APPENDIX

Opinion, Commonwealth Court of Pennsylva­

nia, December 8, 2020...................................... App. 1

Order Quashing Allan J. Nowicki’s Appeal, Com­

monwealth Court of Pennsylvania, December

8,2020

App. 13

Order Denying Allan J. Nowicki’s Application

for Reargument, Commonwealth Court of

Pennsylvania, February 11, 2021

App. 15

V

TABLE OF CONTENTS - Continued

Page

Opinion, Bucks County Court of Common Pleas

January 10, 2020

App. 17

Order, Bucks County Court of Common Pleas,

October 22, 2019

App. 66

Order Denying the Petition for Allowance in the

Supreme Court of Pennsylvania, June 14,

2021

App. 68

Order Denying the Allowance for Reconsidera­

tion in the Supreme Court of Pennsylvania,

September 7, 2021

App. 70

Dissenting Opinion by Judge Leavitt, Common­

wealth Court of Pennsylvania, September 9,

2014

App. 72

VI

TABLE OF AUTHORITIES

Page

Cases

Commonwealth v. Adams, 882 A.2d 496 (Pa. Su­

per. 2005).................................................................

10

Danysh v. Dep’t of Corrections, 845 A.2d 260 (Pa.

Cmwlth. 2004)........................................................

8

Jenkins v. McKeithen, 395 U.S. 411 (1959)..........

8

Madden v. Jeffes, 85 Pa. Cmwlth. 414, 482 A.2d

1162(1984).............................................................

8

Phillips v. Cnty. of Allegheny, 515 F.3d 224 (3d

Cir. 2008)................................................. ...............

9

Picking v. Pennsylvania Railway, 151 F.2d 240

(3d Cir. 1945)..........................................................

9

Richardson v. Pa. Ins. Dep’t, 54 A.3d 420 (Pa.

Cmwlth. 2014)........................................................

10

Seltzer v. Dep’t of Educ., 782 A.2d 48 (Pa.

Cmwlth. 2001)........................................................

10

Union Twp. v. Ethan Michael, Inc., 979 A.2d 431

(Pa. Cmwlth. 2009)................................................

10

Woods v. Office of Open Records, 998 A.2d 665

(Pa. Cmwlth. 2010)................................................

10

Statutes and Rules

Pa. R.C.P. 126...........

10

Pa. R.A.P. 105(a)......

10

Pa. R.A.P. 2118.........

9

Vll

TABLE OF AUTHORITIES - Continued

Page

Pa. R.A.P. 2119........

9

42 Pa. C.S. § 724......

passim

42 Pa. C.S. § 1928(c)

passim

18 U.S.C. § 241........

2

18 U.S.C. § 242........

2

28 U.S.C. § 455(a)....

8

42 U.S.C. § 1983......

2

Other Authorities

Pa. Chapter 33 Code of Judicial Conduct............

8

Lois Bloom & Helen Hershkoff, Federal Courts,

Magistrate Judges and the Pro-Se Plaintiff,

16 Notre Dame J.L. Ethics & Pub. Pol’y 475

(2002)........................................................................

11

Rory K. Schneider, Illiberal Construction of ProSe Pleadings, 159 U. Pa. L. Rev. 585 (2011)......

11

1

PETITION FOR A WRIT OF CERTIORARI

Allan J. Nowicki petitions this Court to issue a

writ of certiorari to review the judgment of the Com­

monwealth Court of Pennsylvania in the case titled

Allan J. Nowicki v. Tinicum Township, et al., No. 1749

C.D. 2019.

OPINIONS BELOW

The opinion of the Commonwealth Court of Penn­

sylvania is reproduced at App. 1-12. The Common­

wealth Court of Pennsylvania denied Appellant’s

Application for Reargument and is reproduced at

App. 15-16. The opinion of the Bucks County Court of

Common Pleas is reproduced at App. 17-65. The Su­

preme Court of Pennsylvania denied the Petition for

Allowance of Appeal and is reproduced at App. 68-69.

The Supreme Court of Pennsylvania denied the Allow­

ance for Reconsideration and is reproduced at App. 7071.

JURISDICTION

The Commonwealth Court of Pennsylvania issued

its judgment on December 8, 2020, App. 13-14. The Su­

preme Court of Pennsylvania denied a timely Petition

for Allowance for Reconsideration on September 7,

2021, App. 70-71. On December 16, 2021, Justice Alito

extended the time for filing this petition to February 4,

.j

2

2022, Application No. 21A226. This Court has jurisdic­

tion under 28 U.S.C. § 1254(1).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The Civil Rights statutes involved are 42 U.S.C.

§ 1983, 18 U.S.C. § 241 and 18 U.S.C. § 242.

INTRODUCTION AND

STATEMENT OF THE CASE

This case is about a Bucks County, Pennsylvania

Municipality located approximately 50 miles North of

Philadelphia, Pa. and 70 miles West of New York City,

N.Y.

Tinicum Township and its’ longtime resident,

farmer and small business owner Allan J. Nowicki.

Plaintiff, Allan J. Nowicki has been a full time res­

ident of Tinicum Township for over 50 years. As a

young man pursuing his college studies of Architec­

ture, Engineering, Surveying and Land Use Planning

he volunteered his time and effort to help draft Tini­

cum Township’s first Zoning Ordinance. Allan J.

Nowicki served as Tinicum Township’s Deputy Zoning

Officer, a member of the Tinicum Township’s Planning

Commission and was appointed the Chairman at the

age of 23. He donated a Conservation Easement on a

42 acre parcel of land in Tinicum Township in the

3

1980s before most people even knew what a Conserva­

tion Easement was.

Allan J. Nowicki has owned in fee and had a finan­

cial interest in over eighty one (81) parcels of land in

Tinicum Township. He was a full time hay and grain

farmer and farmed over three (3,000) thousand acres

annually in Bucks County, Pennsylvania. Allan J.

Nowicki has continuously been engaged in tree farm­

ing for over fifty (50) years and has planted or released

more than ten (10,000) thousand trees in the Township

ofTinicum.

Allan J. Nowicki at one time owned over ninety

(90) percent of the multi-family zoned land in Tinicum

Township which would have allowed him to construct

over eleven (1,100) hundred housing units. Tinicum

Township re-zoned Nowicki’s land so that the maxi­

mum number of housing units could be no more than

thirty-five (35) while Nowicki was in and out of hospi­

tals as he fought for his life from his many bodily inju­

ries.

On April 16, 2007 Allan J. Nowicki purchased a

three (3) acre parcel of land with improvements

through River Road Quarry, LLC, a company owned by

Nowicki. The property is Zoned Extraction with mul­

tiple pre-existing conditions prior to the enactment of

Zoning by Tinicum Township.

Allan J. Nowicki is the sole-member of Pennswood

Oil and Gas, LLC, a Pennsylvania Limited Liability

Company that had been granted an Operator’s License

from the Pa. DEP to drill natural gas wells in the

4

Commonwealth of Pennsylvania. Tinicum Township,

Bucks County, Pennsylvania sits above the South New­

ark Basin, a geological formation that contains petro­

leum hydrocarbons.

Less than sixty four (64) days after Nowicki pur­

chased the three acre parcel of land, without giving no­

tice, Tinicum Township enacted Ordinance #179 which

completely denies natural gas drilling. At the time of

enactment of Ordinance Number 179 the Common­

wealth of Pennsylvania solely had the legal authority

to regulate the extraction of Oil and Gas and not the

Township of Tinicum.

Even though the three (3) acre parcel of land was

pre-existing and non-conforming and allowed agricul­

tural and forestry uses Nowicki acted in good faith and

applied for a Zoning Permit to produce natural garden

mulch from storm damaged, diseased, and dead trees.

He was denied. Nowicki filed an Appeal to the Tinicum

Township Zoning Hearing Board, which also denied his

request. It should be noted that at the Zoning Board

Hearing there were no residents that objected. There

were numerous residents that testified in support. Fur­

thermore, Nowicki presented a Petition in support

signed by all adjoining property owners and additional

residents totaling over fifty (50) signatures.

The litigation now began in the Bucks County

Court of Pleas and continued through the Common­

wealth Court of Pennsylvania. Nowicki lost in the

Commonwealth Court of Pennsylvania in an en banc

5

four to three decision. See the Dissenting Opinion by

Judge Leavitt appearing at App. 72.

Subsequently after the purchase of the three (3)

acre parcel, RRQ, LLC, a Nowicki owned Limited Lia­

bility Company purchased a fifty six (56) acre parcel of

land that surrounded the original three (3) acre parcel

which was also Zoned Extraction and contained a

lake of approximately forty two (42) acres.

After Tinicum Township illegally shut down the

mulch and firewood operation on the three (3) acre par­

cel Nowicki contacted the Tinicum Township Zoning

Officer, Shawn McGlynn and proposed utilizing the

fifty six (56) acre parcel for the mulch and firewood

operation. Mr. McGlynn immediately gave his sup­

port and approval. Shortly after the approval by Mr.

McGlynn Tinicum Township overrode his decision.

The litigation commenced again in the Bucks

County Court of Common Pleas and the Common­

wealth Court of Pennsylvania.

Throughout this litigation Allan J. Nowicki filed

multiple Right to Know requests with the Township of

Tinicum. Tinicum Township has not acted in good faith

and has refused to provide the documents and infor­

mation as requested by Nowicki. Nowicki had filed an

Appeal to the Pennsylvania Office of Open Records and

the Office of Open Records Ordered Tinicum Township

to provide a portion of the requests to Nowicki within

thirty (30) days. . . . the Township refused and filed a

Petition for Judicial Review in the Bucks County Court

of Common Pleas on November 13, 2018 appearing at

6

No. 2018-06609. The Honorable Robert J. Mellon af­

firmed Nowicki’s Appeal on November 30, 2020. . . .

Tinicum Township still has not provided the doc­

uments and information to Nowicki.

Ever since 1978 and continuing today, Tinicum

Township and their agents have harassed Nowicki,

made false statements, tortuously interfered with mal­

ice and intent to harm Nowicki.

Tinicum Township has disguised their efforts to

put a farmer and small business owner out of business.

Tinicum Township has prevented Allan J. Nowicki

from earning a living. Tinicum Township has pre­

vented Allan J. Nowicki from providing thirty (30) mil­

lion gallons of water to the Penn East Pipe Line and to

stop the development of Natural Gas by doing what­

ever was necessary including committing a Fraud

Upon the Court, Conspiring to Commit Abuse of Pro­

cess, Abuse of Process and violating Allan J. Nowicki’s

Civil Rights.

Tinicum Township has instituted the custom or

policy: “Whatever Tinicum Township and its agents can

do to cause harm to Allan J. Nowicki they will do”.

REASONS FOR GRANTING THE PETITION

1. The Civil Rights of the Plaintiff have been

most egregiously violated by a Pennsylvania Munici­

pality, together with all actors, in a deliberate planned

manner.

7

2. Review of this case is an issue of National Im­

portance.

3. There are multiple disagreements among

lower courts as to how Pro-se pleadings are to be de­

cided.

4. Reversible legal error in the Commonwealth

Court of Pennsylvania is stated as follows:

A. The Honorable Anne E. Covey should have

recused herself from participating on the

panel in this Appeal

Judge Covey’s biography states that she is a resi­

dent of Bucks County Pennsylvania and a Member of

the Bucks County Bar Association.

The Co-Defendants: The Law Firm of Eastburn

and Gray, PC. (comprised of approximately thirty (30)

practicing attorneys), The Law Firm of Harris and

Harris, Stephen B. Harris, Esquire, Michael E. Peters,

Esquire, Michael T. Pidgeon, Esquire have offices lo­

cated in Bucks County, Pennsylvania and are also

Members of the Bucks County Bar Association.

Co-Defendant, Michael J. Savona a former partner

and shareholder in the firm of Eastburn and Gray, PC.

is no longer a Member of the Bucks County Bar Asso­

ciation nor does he practice law in the Commonwealth

of Pennsylvania. In March 2018 Michael J. Savona pled

guilty to lying to the FBI about his knowledge of a

$10,000 bribe involving a former Bucks County Judge

and Municipal Officer.

8

Both State and Federal law holds that Judges

must recuse themselves if there are grounds to do so.

Pursuant to Pennsylvania Chapter 33 Code of Judicial

Conduct, Subchapter A Canons #1. “A judge shall up­

hold and promote the independence, integrity and im­

partiality of the judiciary, and shall avoid impropriety

and the appearance of impropriety.” 28 U.S. Code § 455

- Disqualification ofjustice, judge, or magistrate judge

(a) Any, justice, judge, or magistrate judge of the

United States shall disqualify himself in any proceed­

ing in which his impartiality might reasonably be

questioned.

B. The panel departed from precedent by fail­

ing to utilize a relaxed standard for pro-se

filings.

The panel acknowledged that the Appellant, Allan

J. Nowicki filed his Appeal pro-se. The Courts of this

Commonwealth, contrary to this panel’s result, have

consistently held that the adequacy of pro-se filings are

subjected to less stringent scrutiny than those filed by

attorneys. See Danysh v. Department of Corrections,

845 A.2d 260, 262-263 (Pa. Cmwlth. 2004) (“The alle­

gations of a pro-se complainant are held to a less strin­

gent standard . . . ”), aff’d, 584 Pa. 122 (2005); Madden

v. Jeffes, 85 Pa. Cmwlth. 414, 418, 482 A.2d 1162,1165

(1984) (“We do not hold pro-se complainants to the

stringent standards expected of pleadings drafted by

lawyers . . . ”). See Jenkins v. McKeithen, 395 U.S. 411,

421 (1959) “Pro-se pleadings are to be considered with­

out regard to technicality; pro-se litigants’ pleadings

9

are not to be held to the same high standards of per­

fection as lawyers”. See Picking v. Pennsylvania Rail­

way, 151 F.2d 240, Third Circuit Court of Appeals

(1945). “The plaintiff’s civil rights pleading was 150

pages and described by a Federal Judge as “inept”, nev­

ertheless, it was held “where a plaintiff pleads pro-se

in a suit for protection of civil rights, the court should

endeavor to construe plaintiff’s pleadings without re­

gard to technicalities”. See Phillips v. Cnty. of Alle­

gheny, 515 F.3d 224, 230 (3d Cir. 2008) (“Few issues . . .

are more significant than pleading standards, which

are the key that opens access to courts.”)

C. The panel’s decision concerning Waiver is

not supported by Precedent and Pennsylva­

nia Procedure(s).

The panel’s decision finding waiver of the appel­

lant’s claim by failing to adhere to Pennsylvania R.A.P.

2118 and 2119 are at odds with precedent. Appellant

directed the Court to read two letters that showed bias

to Nowicki. Appellant argued that “Plaintiff pled suf­

ficient facts together with numerous exhibits and in­

corporated prior cases into the record as if fully set

forth herein to prove his case and should not have

been thrown out of court at the Preliminary Objec­

tion stage of proceedings”. Appellant’s Conclusion

states: “The Lower Court erred when it sustained

the Preliminary Objections of all Defendants. The

Preliminary Objections of all of the Defendants

should have been overruled because the Plaintiff’s Fi­

nal Amended Complaint alleged facts together with

10

exhibits sufficient to support his claims and contained

inferences that where reasonably deducible”. Mean­

ingful review was certainly achievable by this Honora­

ble Court in this matter. See Union Twp. v. Ethan

Michael, Inc., 979 A.2d 431, 436 (Pa. Cmwlth. 2009).

Thus, this Court may waive even ‘egregious vio­

lations’ of the appellate rules when the errors ‘do

not substantially interfere with our review of

the appellate record/ Seltzer v. Dep’t of Educ., 782

A.2d 48,53 (Pa. Cmwlth. 2001). This Court has deemed

meaningful review of the merits possible when it [can]

discern a pro-se appellant’s argument, or where the in­

terest ofjustice requires it. See Woods v. Office of Open

Records, 998 A.2d 665 (Pa. Cmwlth. 2010). . . . More­

over, we can limit our review to those cognizable argu­

ments we can glean despite the brief’s noncompliance.

See Woods; Commonwealth v. Adams, 882 A.2d 496

(Pa. Super. 2005). Any violations of the Appellate Rules

by Nowicki are far less than referenced in Richardson

v. Pa. Ins. Dep’t, 54 A.3d 420, 426 (Pa. Cmwlth. 2014).

D. The panel’s decision violated the judicial

preference for deciding cases on the merits

embodied in the Rules of Pennsylvania

Courts.

The panel’s decision regarding waiver does not

conform with the established principle that the law

favors deciding cases on the merits, rather than on

procedural deficiencies. See Pa. R.C.P. 126. Liberal

Construction and Application of Rules, and Pa. R.A.P.

105(a). Liberal construction and modification of rules.

11

E. Petitioner hereby incorporates as if fully

set forth herein the publications of the fol­

lowing authors as further support as to

Nowicki’s pro-se pleadings.

Lois Bloom & Helen Hershkoff,

Federal Courts, Magistrate Judges, and

the Pro-Se Plaintiff,

16 Notre Dame J.L. Ethics & Pub. Pol’y 475

(2002)

Rory K. Schneider,

Illiberal Construction of Pro-Se Pleadings,

159 U. Pa. L. Rev. 585 (2011)

CONCLUSION

For the foregoing reasons, Petitioner, Allan J.

Nowicki prays and respectfully requests this Honora­

ble Court to grant a writ of certiorari.

Respectfully submitted,

Allan J. Nowicki, Pro-se

P.O. Box 238

Erwinna, PA 18920

610-405-0320

nowickiaj@yahoo.com

Pro-se Petitioner

Date: February 3, 2022

App. 1

IN THE COMMONWEALTH

COURT OF PENNSYLVANIA

Allan J. Nowicki,

Appellant

v.

Tinicum Township, Bucks

County, Pa., Nicholas Forte,

Tinicum Township Supervisor,

Nicholas Forte, Linda M.

McNeill, Tinicum Township

Manager, Linda M. McNeill,

Stephen B. Harris, Esquire,

Harris and Harris, Township

Solicitor Tom Fountain, P.E.,

Keystone Municipal

Engineering, Inc., Township

Engineer Shawn McGlynn,

Keystone, Municipal Services,

LLC, Boyce Budd, Gary V.

Pearson, Delaware Valley

Landscape Stone, Inc., Joseph

Busik, J. Kevan Busik, Keith

Keeping, Bunnie Keeping

v.

Eastburn and Gray, PC.,

Michael J. Savona, Michael E.

Peters, Esquire, Michael T.

Pidgeon, Esquire, James J.

Sabath, James J. Sabath,

Chief of Police

No. 1749 C.D. 2019

Submitted:

September 11, 2020