Petition for Writ of Certiorari — Schuylkill County Tax Claim Bureau v. Tremont Township

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Supreme Court, U.S.

rin. DD

APR 23 1988

8 ¢ 1 ¢ ¢ 2 JOSEPH F. SPANIOL, JR.

No. CLERK

IN THE

UNITED STATES SUPREME COURT

October Term, 1987

SCHUYLKILL COUNTY TAX CLAIM BUREAU AND

SPRUCE CREEK ENERGY COMPANY, INC

Petitioners

US.

TREMONT TOWNSHIP. PINE GROVE AREA SCHOOL DISTRICT.

MINERSVILLE AREA SCHOOL DISTRICT

AND REILLY TOWNSHIP.

Respondents

ON WRIT OF CERTIORARI TO THE

COMMONWEALTH COURT OF PENNSYLVANIA

PETITION FOR CERTIORARI AND APPENDIX

RICHARD L. CAPLAN, ESQUIRE

1617 J.F.K. Blvd., Suite #1550

Philadelphia, PA-19103

(215) 981-1313

Attorney for Petitioner.

Spruce Creek Energy Co., Inc.

JOSEPH H. JONES, JR., ESQUIRE

1 Norwegian Plaza

Pottsville, PA 17901

(717) 622-5933

Attorney for Petitioner.

Schuylkill County Tax

Claim Bureau

QUESTIONS PRESENTED FOR REVIEW

I. Did not the Commonwealth Court of Pennsylva-

nia err, in contravention of the Fourteenth Amendment

of the United States Constitution and applicable deci-

sions of this Court, when it:

(a) ruled, sua sponte, without rationale and in

conflict with longstanding provisions of the Penn-

sylvania Rules of Civil Procedure and Pennsylvania

case law, that Petitioners should not have filed a

post-trial motion, following an adjudication on the

merits of a civil action by a trial court, and that,

therefore, Petitioners’ Notice of Appeal was un-

timely and their appeljate rights forfeit;

(b) made its decision on the basis of a fine

distinction drawn between certain kinds of cases,

which distinction was neither articulated nor unjus-

tified, was vague and irrational, had no basis in law,

policy, or good sense, and could not reasonably have

been anticipated;

rules retroactively, based upon a precedential case

which it had decided in 1986, almost one year after

petitioners had filed their post-trial motion and no-

tice of appeal and while they were awaiting their

turn to be heard in the Commonwealth Court?

TABLE OF CONTENTS

Fe re I ee kk Arg bee

B. The Status of Pennsylvania’s Procedural

Rule Regarding Post-Trial Motions When

Petitioners Filed Their Motion ...........

C. The Continuation of the Proceedings .....

ESO ANSE RM ie A ck: ee ee Le

ARBITRARY, RETROACTIVE INTERPRE-

TATIONS OF PENNSYLVANIA RULE OF

CIVIL PROCEDURE 227.1 AND SCHUYL-

KILL COUNTY TRIAL COURT RULE 227.1

DEPRIVED PETITIONERS OF THEIR

PROPERTY WITHOUT.DUE PROCESS OF

LAW AND, FURTHER, DENIED PETITION-

ERS THE EQUAL PROTECTION OF THE

RGF uses es Ck ae WC ee ras

A. The Pennsylvania Law Regarding The Fil-

ing Of Post-Trial Motions Has Been In

NR oe hase ees

B. There Is No Reason For Procedural Confu-

sion. The Pennsylvania Courts Can and

Should Adopt A Fair and Clear Rule. The

Federal Courts Have Done So........ a

Page

C. Petitioners’ Appellate Right Was Taken

From Them Without Due Process Of Law:

The Applicability Of Pennsylvania Rule Of

Civil Procedure 227.1, And Schuylkill

County Local Rule 227.1, As Interpreted By

The Commonwealth Court Of Pennsylva-

nia, Was Determined In A Vague And Stan-

dardless Manner And Was Given Retroac-

tive Effect . «i415. cet eee 17

D. Pennsylvania Rule Of Civil Procedure

227.1, As Interpreted In This Case By The

Commonwealth Court Of Pennsylvania,

Deprived Petitioners Of Rights Guaranteed

To Them Under The Equal Protection

Clause Of The Fourteenth Amendment... 20

CONCLUSION. .. ......:<. 4245200 e ee a3

TABLE OF CITATIONS .

Cases: Page

Appeal of Auditor’s Report of Muncy Creek Town-

ship, 520 A. 2d 1241, 1243

i ey 0 ne

re geo oiavi-a igloo a ce

Baggett v. Bullitt, 377 U.S. 360, __, 84S. Ct. 1316.

fi a ewes ov ew é bb ken

Bouie v. City of Columbia, 378 U.S. 347, 84S. Ct.

EG a

Burkhart v. Brockway Glass Co., 507 A. 2d 844

(Pa. Super. 1986), Id. at 845, 846............

Center Township v. Center Township Zoning Hear-

ing Board, 522 A. 2d 673, 675 (Pa. Cmwilth.

Sn DS a ee a

Champlin Refining Co. v. Corporation Commission

of Oklahoma, 286 U.S. 210, 243, 52 S. Ct. 559,

Ne Cae sata ss ew ak bo Sey Ws cok ows cw se

Chicago & N.W. Ry. Co. v. Nye-Schneider-Fowler

Co., 200 U.S. 35, __, 43 S. Ct. 55, 60 (1922)..

City of Allegheny v. Allegheny City Prison Emp..

417 A. 2d 864, 865 (Pa. Cmwlth. 1980) ......

Commonwealth, Department of Transportation v.

Hess, 423 A. 2d 434, 436 (Pa. Cmwlth. 1980).

Commonwealth, Department of Transportation.

359 A. 2d 838, 839 (Pa. Cmwlth. 1976) ......

Commonwealth Ex Rel. White v. White, 449 A. 2d

712, 714 (Pa. Super. Court 1982)............

Commonwealth of Pennsylvania Lig. Control Bd. v.

Kayden Corp., 505 A. 2d 393 (Pa. Cmwlth.

I ea

TABLE OF CITATIONS— Continued )

Cases: Page

Commonwealth v. Willowgrove Veterans Home

Ass’n., 509 A. 2d 958, 960

(Pe, CE, De ke vk kcts daedsvagess 5, 14

Connally v. General Construction Co., 269 U.S.

385, 391, 46 S. Ct. 126, 127 ( ae ta 18

Cramp v. Board of Pub. Inst., Orange County, Fla.,

368 U.S. 278, _., 82 S. CL. 275, 281 (1961).. 19

East Coast Properties v. Hartford Mut. Ins., 516 A.

39077, 1210 (Pa. Super. 1900). .5 6. cca cass, 14

Giaccio v. State of Pennsylvania, 382 U.S. 401, _.,

O6 S. Ce. BiG, SAG! CIGGS) «we ccc ees. 18

Haegele v. Pennsylvania General Ins. Co., 479

A. 2d. 1005 (Pa. Super. 1984) ............... 8

Harper v. Virginia State Board of Elections, 383

U.S. 663, __, 86 S. Ct. 1079, 1085 (1966) .... 22

Harris Truck Lines v. Cherry Meat Packers, 371

U.S. 215, _.. 83 &.. Ct. 283, 265 (19G2)....... 17

In Re Benner By Cassidy, 516 A. 2d 59

(Pa. Semper. $905) 0 GU, GE. so. ccs cn 15

In Re Jones and Laughlin Steel Corp., 477 A. 2d

Mie Eg a ae” | ear 8

In Re Proposed Private Sale by Carbon County Tax

Claim Bureau, 504 A. 2d 380 (Pa. Cmwith.

RRR reer Ort Up apr alot ou Pec eNOn Pina epg 20

In Re Wilson, 449 A. 2d 711, 712

(a - 4 eee arer err ee 8

Johnson v. Johnson, 515 A. 2d 960, 961 (Pa. Super.

Mr ee ne a ie a ee ake e ee wee 12

Johnson v. State of Arizona, 462 F. 2d 1352, 1354

Pee Re Nee Cos vy ane eae eee 20

TABLE OF CITATIONS— Continued )

Cases: Page

Johnston v. Commonwealth, Department of Trans-

portation, 517 A. 2d 585 (Pa. Cmwlth. 1986). 10

Lindsey v. Normet, 405 U.S. 56, __, 92 S. Ct. 862,

SRG 22 | Pg he, SAR an i ariee PERAK ESR 21

Lundvall v. Camp Hill School District, 362 A. 2d

482, 484 (Pa. Cmwilth. i) See ee ee 5

Matter of Borough of Forrest City Abolition, 482 A.

2d 1375 (Pa. Cmwlth. 1984) ................ 8

Missouri v. Lewis, 101 U.S. 22, 30 (1879)........ 21

Pedersen v. South Williamspert Area _ School

District, 471 A. 2d 180, 182 (Pa. Cmwlth.

WO Son 0 ora pic coe ew a aa a

State of Ohio v. Akron Metro. Park Dist., 281 U.S.

#4, SOS. CR, Sa CA bos a one osc ees 21

Thompson v. Immigration and Naturalization

Service, 375 U.S. 384, __, 84 S. Ct. 397, 398

~“

(FEROS ook ose ee eee eee 17

United States Vv. Cardiff, 344 U.S. 174, 176, 73 S.

CA. BBs cee ee eee 19

U.S. National Bank in Johnstown v. Johnson, 487

A. 2d 809, 813 (Pa. Supreme 1985).......... )

U.S. v. Peltier, 422 U.S. 531, _., 95 S. Ct. 2313,

RD eh Cee Oe eee 23

Wertz v. Anderson, 508 A. 2d 1218

(rae. Se See ice eee 12

Williams v. Oklahoma City, 395 U.S. 458 __, 89 S.

A, Sie, ea oe eee 19-2]

Wolfsohn v. Hankin, 376 U.S. 203, 84 S. Ct. 699

CRG? cs bese hae e es cee 6 eee 17

TABLE OF CITATIONS— Continued

Cases: Page

Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391

COT) g 000002 hdvea eb Les eriaa we be ue cr a) Se

STATUTES AND RULES

Fourteenth Amendment to the United States

Cametitethae on oO aches ek aka tee eta ll

Federal Rule of Appellate Procedure 4(a) (4, 50, 52,

TD. 000066 60d bbne dba LOSER OEMS SEE RER ESO 16

United States Supreme Court Rule 20.4......... 16

98 1).8.C. Section BROAD) 6 aden sc eeesencsstecsss 3

Pennsylvania Real Estate Tax Sale Law, Act of July

7. 1947, P.L. 1368, as amended, 72 P.S. Section

5860.101 et seg. (the “Tax Sale Law”), Section

CPW). oc cewceccacncsdtccsebnensueuteeares ee

Pennsylvania Rules of Civil Procedure

UT} 18 Cree eee 4, 6, 11, 12, 17, 18, 20

Pennsylvania Rules of Civil Procedure 52(c),

1001(b\( 1), 1038¢d), 1051, 1061, 1071, 2101-

Pennsylvania Rules of Civil Procedure 126 ....... 6

Schuvlkill County Court of Common Pleas Local

Rule 227.1............... 5, 7, 10, 12, 13, 17, 20

AUTHORITIES

Moore, Federal Practice, Volume 9, paragraph

204.1203), P. 4-BO.. ccc rccnccwwniessewees 17

QUESTIONS PRESENTED FOR REVIEW

I. Did not the Commonwealth Court of Pennsylva-

nia err, in contravention of the Fourteenth Amendment

of the United States Constitution and applicable deci-

sions of this Court, when it:

(a) ruled, sua sponte, without rationale and in

conflict with longstanding provisions of the Penn-

sylvania Rules of Civil Procedure and Pennsylvania

case law, that Petitioners should not have filed a

post-trial motion, following an adjudication on the

merits of a civil action by a trial court, and that,

therefore, Petitioners’ Notice of Appeal was un-

timely and their appellate rights forfeit;

(b) made its decision on the basis of a fine

distinction drawn between certain kinds of cases.

which distinction was neither articulated nor unjus-

tified, was vague and irrational, had no basis in law,

policy, or good sense, and could not reasonably have

been anticipated;

rules retroactively, based upon a precedential case

which it had decided in 1986, almost one vear after

petitioners had filed their post-trial motion and no-

tice of appeal and while they were awaiting their

turn to be heard in the Commonwealth Court?

OPINIONS IN THE COURTS BELOW

1. The Opinion of the Commonwealth Court of

Pennsylvania, dated March 5, 1987, is reported at 522 A.

2d 102 (1987). A copy of that Opinion is attached hereto

as Appendix pp. la-12a.

2. The Opinion and Order of the Court of Common

Pleas of Schuylkill County, McCloskey, J., dated Decem-

ber 10, 1985, denying the Post-Trial Motions of Spruce

]

Creek Energy Company and Schuylkill County Tax

Claim Bureau, are attached hereto as Appendix

pp. 13a-20a.

3. The Opinion and Order of the Court of Common

Pleas of Schuylkill County, McCloskey, J.. dated Sep-

tember 27, 1985, granting the Petitions of Tremont

Township, Pine Grove Area School District, Minersville

Area School District and Reilly Township To Disapprove

the Sale. are attached hereto as Appendix pp. 21la-31a.

4. The Opinion Order of the Court of Common

Pleas of Schuylkill County, McCloskey, J., dated August

27, 1984, denying the Petition of Spruce Creek Energy

Company and Schuylkill County Tax Claim Bureau for

Change of Venue or Recusal of the Judges, is attached

hereto as Appendix pp. 32a-37a.

JURISDICTION

1. The date of the judgment of the Commonwealth

Court of Pennsylvania! sought to be reviewed is March

5. 1987. which is also its date of its entry. Petitioners

promptly filed a Joint Application for Reargument which

the Commonwealth Court denied by Order dated May

14. 1987, a true copy of which is attached hereto as

Appendix p. 38a. Petitioners thereupon filed a Petition

for Allowance of Appeal [from the final Commonwealth

Court judgment] with the Supreme Court of Pennsylva-

nia. which was denied per curiam on December 3, 1987

A true copy of notice of entry of this Order is attached

hereto as Appendix p. 39a. Finally, Petitioners filed with

the Supreme Court of Pennsylvania an Application for

Reconsideration of Denial of Allowance of Appeal, which

that court denied per curiam on February 1, 1988. A

true copy of notice of entry of this Order is attached

hereto as Appendix p. 40a.

The Commonwealth Court is one of two intermediate appellate courts in

Pennsvivania. Its appeilate jurisdiction extends. inter alia, to disputes

involving as parties the Commonwealth or its political subdivisions

Jurisdiction of this Court to review by Writ of

Certiorari the judgment of the Commonwealth Court of

Pennsylvania, which is the “highest court of ithe] State

in which decision could be had” is setforth in 28 U.S.C.

Section 1257(3).

The text of the United States constitutional provi-

sions and Pennsylvania statutes and rules of court which

this case involves are to be found in Appendix

pp. 42a-47a.

STATEMENT OF THE CASE

A. The Hearing

On March 24, 1983, Petitioners, Spruce Creek En-

ergy Company, Inc. (“Spruce Creek”)? and Schuylkill

County Tax Claim Bureau (the “Bureau”), entered into

a “Private Land Sale Agreement” (the “Agreement” ) by

which Spruce Creek obtained an option to buy certain

property held by the Bureau as a result of real estate tax

foreclosures. By virtue of the Agreement, Spruce Creek

gained an equitable interest in substantial anthracite

coal reserves located 500 feet below the surface of

approximately 6,500 acres.

In accordance with the Pennsylvania Real Estate

Tax Sale Law, Act of July 7, 1947, P.L. 1368. as

amended, 72 P.S. Section 5860.101 et seg. (the “Tax

Sale Law”), local taxing authorities were notified of the

Agreement. Certain of these authorities—Tremont

Township, Pine Grove Area School District, Minersville

Area School District and Reilly Township, respondents

herein—instituted an action in the Court of Common

Pleas’ of Schuylkill County, pursuant to Section 613(a)

of the Tax Sale Law, 72 P.S. Section 5860.613(a). to

defeat the sale.

~ Spruce Creek Energy Company. Inc. has neither parent Company,

subsidiaries nor affiliates.

' The Court of Common Pleas in Pennsylvania is the court of general

jurisdiction

inane aaa eee, ws

While this action was pending, a non-binding refer-

endum was held, and the voters of the County voted

overwhelmingly in opposition to the “burning of anthra-

cite coal underground” (the method by which Spruce

Creek proposed to extract the deep coal energy). There-

after, Petitioners, arguing that the trial court stood in

danger of being overwhelmed by the political nature of

the controversy, filed a motion for Change of Venue or

for Recusal of the Judges of Schuylkill County. The

order of the court and its opinion denying that motion

are attached hereto as Appendix pp. 32a-37a.

The trial court went on to adjudicate the merits of

the case. Over a period of five days, lay and expert

witnesses were sworn, heard and cross-examined. The

testimony explored among other things, the circum-

stances surrounding the negotiation of the Agreement

and questions of engineering feasibility and _ safety.

Many tangible exhibits were received in evidence. In

sum, the proceeding appeared to any observer to be a

hotly contested trial.

On September 27, 1985, the trial court, per McClos-

key J., determined the Agreement to be invalid. The

order and the opinion of the court to this effect are

attached hereto as Appendix pp. 2la-3la. Petitioners

then filed a timely post-trial motion in the nature of

exceptions to the judgment or a request for reconsider-

ation in the good faith belief that this step was a

necessary procedural precursor to an ultimate appeal to

the Commonwealth Court.

B. The Status of Pennsylvania’s Procedural

Rule Regarding Post-Trial Motions When Petitioners

Filed Their Motion

In 1985, and, indeed, even now, Rule 227.1 of the

Pennsylvania Rules of Civil Procedure (the “Procedural

Rules”) provided, in pertinent part, that:

days after

(2) notice of non suit or the filing of the

decision or adjudication in the case of a trial

without jury or equity trial.

Further, Local Rule 227.1 of the Court of Common

Pleas of Schuylkill County was even broader in apparent

scope:

“Post-Trial Motions”:

(a) Motions for new trials, for judgment n.o.v..

to take off non-suits, in arrest to judgment, and

exceptions to a decision or adjudication in a non-

jury proceeding with the reasons in support thereof.

shall be in writing and shall be filed within ten days

after the verdict, non-suit, or adjudication. . .

[emphasis added|

Case law had made very clear to the attorneys of

Pennsylvania that the filing of Post-Trial Motions was a

prerequisite to the filing of an appeal.

We discern no reason here for departing from

the settled principle that no appeal will lie from a

decision of the trial judge sitting without a jury

unless exceptions are filed in the Court below and

disposed of there. Pa. R.C.P. No. 1038. . .4

Lundvall v. Camp Hill School District, 362 A. 2d

482, 484 (Pa. Cmwlth. 1976).

This Rule was set out again with clarity and force in City

of Allegheny v. Allegheny City Prison Emp., 417 A. 2d

864, 865 (Pa. Cmwlth. 1980).

' Rescinded Pennsylvania Rule of Civil Procedure 1038(d) was the

precursor of Rule 227.1 for bench trials. Commonwealth v. Willowgrove

Veterans Home Ass‘n., 509 A.2d 958, 960 (Pa. Cmwilth. 1986).

There was nothing in Pennsylvania's jurisprudence

to suggest that the requirement of filing post-trial mo-

tions as a prerequisite to an appeal did not or would not

persist in all civil cases brought in the Court of Common

Pleas. Every signpost in the Procedural Rules pointed to

the prescribed course. Pa. R.C.P. 52(c) provided that the

Rules applied to all pending and future “actions”. Pa.

R.C.P. 1001(b)(1) provided that there would be but one

form of action to be known as a “civil action”, with

procedural distinctions between trespass and assumpsit

cases abolished. Special proceedings were to be treated,

unless otherwise specifically stated, in accordance with

the general rules for civil “actions”. See Pa. R.C.P. 1051,

1061. 1071, regarding replevin, ejectment and the

action to quiet title respectively. Nothing in those rules

respecting actions involving the Commonwealth or its

political subdivision, Pa. R.C.P. 2101-2125, touched

upon or modified the general rule regarding post-trial

motions, Pa. R.C.P. 227.1

A trial attorney in Pennsylvania had every reason to

conclude that judicial interpretation of the Procedural

Rules would be neither formalistic nor doctrinaire.

Thus, Pa. R.C.P. 126 provides that

(t]he rules shall be liberally construed to secure

the just, speedy and inexpensive determination of

every action or proceeding to which they are appli-

cable. The court at every stage of any such action or

proceeding may disregard any error or defect of

procedure which does not affect the substantial

rights of the parties.

Pa. R.C.P. 227.1 itself falls under the broad heading of

“Business of Courts”, which further supports the infer-

ence that all civil “actions” are amenable to post-trial

motion practice, particularly in view of the fact that the

Procedura! Rules do not define “trial” as a term of art.

Prior to 1985, Pennsylvania’s appellate courts had

carved out an exception from the general rule that

post-trial motions must be filed as a prerequisite to

appeal. In Commonwealth, Department of Transporta-

tion v. Hess, 423 A. 2d 434, 436 (Pa. Cmwlth. 1980):

Commonwealth, Department of Transportation, 359 A.

2d 838, 839 (Pa. Cmwlth. 1976), and Appeal of Sgro, 447

A. 2nd 325, 327 (Pa.Cmwlth 1982),the Commonwealth

Court held that the post-trial motion requirement did not

apply to proceedings brought under the Pennsylvania

Eminent Domain Code or cases involving tax assess-

ments. These cases ostensibly placed Commonwealth

attorneys on notice that the enumerated cases consti-

tuted “statutory appeals” and that post-trial motions

obtained only “when applied by statute or local rule of

Court.”

Id. at 327. Unfortunately, the term “statutory

appeal” was never defined.

In 1984, Pedersen v. South Williamsport Area

School District, 471 A. 2d 180, 182 (Pa. Cmwlth. 1984).

appeared to clarify the meaning of “statutory appeal”.

Post-trial motions need not be filed in those instances in

which the court

.. neither heard testimony nor made findings

of fact, but rather filed an opinion and order from the

basis of the record certified by the agency... it is

clear that the court was exercising appellate review

of the agency’s decision. [emphasis original |

Thus, in the instant case, all signs pointed unequiv-

ocally to the necessity that Petitioners file post-trial

motions as a prerequisite to appeal. The Court of Com-

mon Pleas of Schuylkill County had “heard testimony

|and| made findings of fact”. There had been no “record”

certified by an agency. This was not a “statutory appeal.”

Further, in accordance with Appeal of Sgro, supra,

Schuylkill County’s Local Rule 227.1 had, in broad

terms, authorized if not required the filing of post-trial

motions following, inter alia, “a decision or adjudication

in a non-jury proceeding. ..”. Id.

Additional case law at the time encouraged the

scrupulous practitioner to conclude that the filing of

post-trial motions would be required in all but the most

clearly articulated exceptional situations. In In Re Wil-

son, 449 A. 2d 711, 712 (Pa. Super. 1982), the Pennsyl-

vania Superior Court® held that the rules requiring the

filing of post-trial motions applied to civil commitment

proceedings: “The rules [of procedure] specifically pro-

vided that other civil actions are to conform to the

assumpsit rules unless a different procedure is expressly

mandated.” In Commonwealth Ex Rel. White v. White,

449 A. 2d 712, 714 (Pa. Super. Court 1982), the court

held that the pre-appeal, post-trial motion requirement

applied to actions brought under Pennsylvania's Civil

Procedural Support Law. “We are bound by these clear

precedents.” [emphasis added] Id.

Then. in 1984, in In Re Jones and Laughlin Steel

Corp., 477 A. 2d 527, 530 (Pa. Super. 1984), the

Superior Court expressed concern that there were “pro-

cedural uncertainties” regarding whether or not post-

trial motions were to be filed in the case before it. That

case involved appraisal proceedings following a merger.

The court noted, without disapproval, that the attorneys,

in an excess of caution, had filed post-trial motions and

simultaneously taken their appeal.

In Haegele v. Pennsylvania General Ins. Co., 479 A.

2d. 1005 (Pa. Super. 1984), the Superior Court had to

decide whether an appeal from a trial court’s review of

an arbitration award should have been preceded by

post-trial motions. the court held that such motions were

not required. However, the court acknowledged the

“considerable confusion” on the issue. Id. at 1009, n.8.

In Matter of Borough of Forrest City Abolition, 482

A. 2d 1375 (Pa. Cmwlth. 1984), the Commonwealth

Court decided that an adjudication of a petition to

abolish wards need not be followed by post-trial motions.

> The Superior Court is one of Pennsylvania's two intermediate appellate

courts.

In U.S. National Bank in Johnstown v. Johnson, 487 A.

2d. 809, 813 (Pa. Supreme 1985), the Supreme Court of

Pennsylvania ruled that post-trial motions were not to be

filed following the grant of preliminary objections. Such

a ruling was, it is submitted, in line with established

precedent. What was noteworthy was that the court

noted “suprisingly” that the Common Pleas Court en

banc had been clearly confused on the issue and had,

wrongly, entertained the post-trial motions.

In sum, as of 1985, in the face of acknowledged

procedural confusion, Pennsylvania’s appellate courts

had failed to delineate a_clear rule of post-trial motion

practice or to rationalize such a rule. Still, at least one

principle appeared to be trustworthy: post-trial motions

were to be filed after an adjudication of the merits of any

“action” in which the trial court had heard testimony

and made findings. It was upon this precept that Peti-

tioners relied.

C. The Continuation of the Proceedings

Following Petitioners’ filing of their post-trial motion

seeking reconsideration by Judge McCloskey of his

Order disapproving the Agreement, neither opposing

counsel nor the court suggested that the motion was

procedurally improper or in violation of local rule. The

court heard and disposed of the motion on its merits

some seventy-eight days after its filing. It was denied by

Order and Opinion dated December 10, 1985, which is

attached hereto as Appendix pp. 13a-20a.

On December 27, 1985, well within the thirty day

period for appeal from a final judgment, Petitioners filed

their Notice of Appeal in the Commonwealth Court of

Pennsylvania. Just short of eleven months later (330

days), the Commonwealth Court heard oral argument.

At that time, sua sponte, the court raised a question that

everyone else had understandably overlooked: had not a

post-trial motion been filed erroneously, and thus, while

that motion awaited determination by the trial court, had

not the thirty day appeal period expired?

On March 5. 1987. the Commonwealth Court dis-

missed Petitioners’ appeal as untimely filed. In so doing,

the court observed that

(l}ocal Rule 227.1 of the Schuylkill County

Court of Common Pleas authorizes post-trial mo-

tions in the nature of exceptions to a “decision or

adjudication in a non-jury proceeding’. [emphasis

original] We doubt that this language is intended to

encompass statutory appeals; we, therefore, will

quash the instant appeal sua sponte on jurisdic-

tional grounds. {emphasis supplied].

Appendix Section pp. 46a-4/a.

Clearly, the Commonwealth Court harbored doubts as to

the validity of its decision. No reason is given nor

inference suggested as to why so harsh a result should

be appropriate in this case. No effort whatsoever is made

to explain why the evidentiary hearing before the Schuy-

Ikill County Court did not constitute a “non-jury pro-

ceeding” within the meaning of the local rule. Simply,

Petitioners are held to be out of time.

The Commonwealth did cite authority—specifi-

cally—Johnston v. Commonwealth, Department of

Transportation®, 517 A. 2d 585 (Pa. Cmwith. 1986), in

support of its ruling. That decision had been issued by

the Commonwealth Court on November 14, 1986, al-

most one vear after Petitioners filed their Notice of

Appeal and more than one year after they had filed their

post-trial motion in the trial court. Thus, Petitioners

were cast down by a precedent which had come into

being while they were waiting their turn to be heard in

[he Johnston decision, itself, continues the contusion, It requires

post-trial motions in the case of “statutory appeals” if “authorized by statute

or local rule.” However, “statutory appeals” are still not defined

the same appellate court and long after they had com-

mitted to a course of conduct which they legitimately

believed to be required by both state-wide and local court

procedure.

In summarily dismissing Petitioners’ appeal, the

Commonwealth Court went on to hold that Pa. R.C.P.

227.1 did not apply because “this, then, clearly was a

statutory appeal. There was a hearing, not~a trial.”

(Appendix p. 7a). The court made no effort to enlighten

as to the difference between a “hearing” and a “trial”

and why, to the edification of those with need to know.

this distinction made a difference. Interestingly, while

insisting that Petitioners had not had a “trial”, the

Commonwealth Court referred on nine separate occa-

sions in its opinion to the Court of Common Pleas of

Schuylkill County as the “trial court”.?

On March 16, 1987, petitioners applied for reargu-

ment in the Commonwealth Court, raising, inter alia,

their arguments that the application of new case law

retroactively to procedures which were proper in 1985

violated the Due Process Clause of the United States

Constitution.

On May 14, 1987, Petitioners’ Application for Re-

argument was denied by the Commonwealth Court

without opinion. A copy of the Order is appended hereto

as Appendix p. 38a.

On or about June 10, 1987, Petitioners filed a

Petition for Allowance of Appeal in the Supreme Court of

Pennsylvania. Petitioners argued, inter alia, that “to

change without advance notice the rules of litigation

applicable to pending cases smacks of unfairness and

offends traditional notions of evenhanded justice,” citing

the Fourteenth Amendment to the United States

Constitution.

“ The court went on, by way of dicta, to address the merits of the appeal,

and found against Petitioners. The limited holding of the case—that

petitioners’ appeal was out of time—appears to bar review of the merits at

this juncture by any higher court.

ie, :

On December 3, 1987, the Petition for Allowance of

Appeal was denied without Opinion by the Supreme

Court of Pennsylvania. Its Order is appended hereto as

Appendix p. 39a. Petitioners’ subsequent Application

For Reconsideration of Denial of Allowance of Appeal

was similarly denied by Order entered on February 1,

1988, which is appended thereto as Appendix p. 40a.

ARGUMENT

I. ARBITRARY, RETROACTIVE INTERPRETA-

TIONS OF PENNSYLVANIA RULE OF CIVIL PRO-

CEDURE 227.1 AND SCHUYLKILL COUNTY TRIAL

COURT RULE 227.1 DEPRIVED PETITIONERS OF

THEIR PROPERTY WiTHOUT DUE PROCESS OF

LAW AND, FURTHER, DENIED PETITIONERS THE

EQUAL PROTECTION OF THE LAWS.

A. The Pennsylvania Law Regarding The Filing

of Post-Trial Motions Has Been In Disarray.

The Pennsylvania courts continue to express their

bafflement as to whether and when post-trial motions

should be filed. A review of the case law documents the

confusing, confounding, and unfair situation which was

faced by Petitioners.

Post-trial motions must be filed in proceedings to

enforce Child Support Awards. Wertz v. Anderson, 508

A. 2d 1218 (Pa. Super. 1986). They must not be filed in

matters involving the Pennsylvania Liquor Control

Board. Commonwealth of Pennsylvania Liq. Control Bd.

v. Kayden Corp., 505 A. 2d 393 (Pa. Cmwlth. 1986), nor

in an appeal from a Auditors Report regarding a sur-

charge. Appeal of Auditor’s Report of Muncy Creek

Township, 520 A. 2d 1241, 1243 (Pa. Cmwlth. 1987).

However, they must be filed in an action in mandamus.

Id at 1243, n. 2.

The term “hearing” continues to be used impre-

cisely, and the terms “statutory appeal” and “trial”

remain undefined in this context. Johnson v. Johnson,

915 A. 2d 960, 961 (Pa. Super. 1986.) There is never

mention in any of these decisions of judicial reasoning or

social policy. There is never an articulated standard.

One’s right to an appeal turns of an ad hoc decision that

even the most careful practitioner cannot anticipate with

accuracy.

In 1985, the law actually seemed more precise.

Local Rule 227.1 of the Schuylkill County Court seemed

unequivocally to call for the filing of post-trial motions

following an “adjudication in a non-jury proceeding.”

Therefore, Petitioners had every reason to file post-trial

motions. To do otherwise would have courted a malprac-

tice claim. Yet, Petitioners stand stripped of their appel-

late rights by an unreasoned decision created after they

filed their motion and took their appeal.

From time to time, the Pennsylvania appellate

courts do perceive that their dogmatic approach may

lead to injustice. In Burkhart v. Brockway Glass Co.,

907 A. 2d 844 (Pa. Super. 1986), the Superior Court

faced a “conflict between the Pennsylvania Rules of

Civil Procedure and the local rule followed in Washing-

ton County”. Id. at 845. In that case, post-trial motions

were filed following the grant of a motion for summary

judgment. The motions were heard by the Common

Pleas Court en banc. Even though the subsequent

appeal should have been quashed as “untimely” in

keeping with precedent, the Superior Court was defer-

ential to the controlling force of local rule:

It would, of course, be callously unjust to penal-

ize a litigant because her counsel complied with the

rule of the forum.

Id at 846.

Petitioners believe that it is “callously unjust” to be

penalized in this case for following Schuylkill County’s

local rule, which no person nor decision at the time

suggested was inapplicable. Callous injustice and con-

stitutional due process must always be at odds.

—_—liiias

In Commonwealth v. Willowgrove Veterans Home

Ass’n., 509 A. 2d 958, 960 (Pa. Cmwlth. 1986), the

Commonwealth Court underscored the calamitous con-

sequences to the trial lawyer who fails to predict cor-

rectly the proper procedure for post-trial motions as later

announced by a reviewing court:

It is vital that the practitioner of law know

when this rule [Rule 227.1] is applicable. If it is not

applicable, and the practitioner files a motion for

post-trial relief, the practitioner risks an untimely

appeal, because such improper motion will be

treated as a petition for reconsideration, which does

not stay the appeal period |citation omitted]. If the

rule is applicable, and the practitioner fails to file a

motion for post-trial relief, the failure to do so

precludes consideration of the merits, constitutes a

waiver of the appellant's objections, and requires

affirmance of the lower court order upon appeal

(citation omitted|. Therefore it is imperative that the

careful practitioner know when he is required to file

for post-trial relief. [emphasis supplied]

Clearly, the Commonwealth Court recognized the con-

fused state of post-trial motion practice in 1986, and yet

it declined to clarify the standard in Petitioners’ case.

Instead, it took an arbitrary and unreasoned approach.

Petitioners believe that it is unfair and indecent to

penalize litigants for a “detful” violation by their

attorneys of vague procedurai rules which are later

| acknowledged to be in need of clarification. A loss of

| appellate rights in this context is an extreme punish-

ment which rises to constitutional dimension.

| In East Coast Properties v. Hartford Mut. Inc., 516

A. 1207, 1210 (Pa. Super. 1986), the Superior Court, for

the first time in all of these cases, addresses this issue

from a policy prospective. The court notes with trepida-

tion that litigants might “unilaterally extend the appeal

period merely by filing exceptions. .. that, of course,

would amount to an impermissible assault on orderly

appellate procedure” [citation omitted]. But the problem

in Pennsylvania remains that there is still no orderly

procedure with regard to post-trial motions. Litigations

file or fail to file at their peril.

In In Re Benner By Cassidy, 516 A. 2d 59 (Pa.

Super. 1986), the Superior Court addressed whether or

not proceedings regarding change of name should be

followed by post-trial motions. Given Pennsylvania's

coin-flip jurisprudence on the subject, one would be

hard pressed to predict the outcome (the court decided

that post-trial motions were not required). In dissenting,

Judge McEwen acknowledged a “severe anxiety”:

\Sjince the precise procedure which the major-

ity holds counsel for appellant should have followed.

was so uncertain as to present to this appellate

tribunal an issue of first impression, | am unable to

join in the decision to quash the appeal.

Id. at 60-61.

Judge McEwen poses a question involving simple

decency. How, without “severe anxiety”, can a court

penalize a litigant for his counsel’s failure to select the

safe path through a court-made quagmire? Since their

exists in Pennsylvania no articulated, rational standard

for determining whether post-trial motions should be

filed in a particular case, virtually every unique situation

presents an issue of first impression. This lack of guid-

ance was recognized even by the majority opinion,

which commented upon the “dearth of case law.”

Id. at 60.

The uncertainty continues. In Center Township v.

Center Township Zoning Hearing Board, 522 A. 2d 673.

675 (Pa. Cmwlth. 1987), the Commonwealth Court was

faced with a situation in which “local practice”, although

not local rule, required the filing of post-trial motions in

zoning cases. The Commonwealth Court held that post-

trial motions were not proper in those cases, but did not

foreclose appellate relief:

Felsing was lulled into believing that his post-

trial motion was proper. The issuance of this stay

can be considered a break-down_in_the operation of

the court. .. we will hear his appeal nunc pro tunc.

Thus. in 1987, the Commonwealth Court, in recognition

of the trial bar’s confusion, chooses to temper the

harshness of a doctrinaire approach with mercy. Peti-

tioners submit that they filed their post-trial motion in

accordance with local rule at just about the same time

that Felsing did. It is not even-handed justice for the

Commonwealth Court to reach opposite results in com-

parable cases of “break-down in the operation” of the

local court. The Commonwealth Court, in Petitioners’

case, found certainty in confusion. In so doing, it made

the type of ruling that stuns litigants and brings the

courts into disfavor.

B. There Is No Reason For Procedural Confu-

sion. The Pennsylvania Courts Can and Should Adopt

A Fair and Clear Rule. The Federal Courts Have Done

So.

All rules tend to be fuzzy at their edges, but they

should not be ambiguous at their centers. It should not

be difficult, in light of the federal precedent, for Pennsyl-

vania’s courts to construct a clear, even-handed rule

regarding the filing of post-trial motions. There is no

reason in the world why confusion should still exist.

Federal Rule of Appellate Procedure 4(a)(4) clearly

provides, in pertinent part, that the time to appeal “shall

run from the entry of the order denying a new trial or

granting or denying any other such motions” under

Rules 50, 52 and 59]. See, also, Supreme Court Rule

20.4. When other situations of procedural uncertainty

have arisen, this Court has been willing to make allow-

ances. Thus, in Harris Truck Lines v. Cherry Meat

Packers, 371 U.S. 215, , 83 S. Ct. 283, 285 (1962),

this Court bowed to the trial court’s extension of the

appeal period upon an erroneous finding of “excusable

neglect”.

In view of the obvious great hardship to a party

who relies upon the trial judge's finding of ‘excus-

able neglect’ prior to the expiration of the 30-day

period and then suffers reversal of the finding, it

should be given great deference by the reviewing

court.

To the same effect, see Thompson v. Immigration

and Naturalization Service, 375 U.S. 384, - , 84S.

Ct. 397, 398 (1964):

...[|H]e relied on the Government’s failure to

raise a Claim of untimeliness when the motions were

filed and on the District Court's explicit statement

that the motion for a new trial was made ‘in ample

time’; for if any question had been raised about the

timeliness of the motions at that juncture, petitioner

could have, and presumably would have, filed the

appeal within sixty days of entry of the original

judgment, rather than waiting, as he did. until after

the trial court had disposed of the post-trial motions.

See, also, Wolfsohn v. Hankin, 376 U.S. 203, 84 S. Ct.

699 (1964). There is the need in a system of law for

“relief from procedural traps,” Volume 9, Moore, Federal

Practice, paragraph 204.12(3), p. 4-80, a need to which

the Pennsylvania courts seem totally insensitive.

C. Petitioners’ Appellate Right Was Taken

From Them Without Due Process of Law: The Appli-

cability of Pennsylvania Rule of Civil Procedure

227.1, and Schuylkill County Local Rule 227.1, As

Interpreted By The Commonwealth Court of Pennsyl-

vania, Was Determined In A Vague And Standardless

Manner And Was Given Retroactive Effect.

It is established that a law fails to meet the

requirements of the Due Process Clause if it is so

vague and standardless that it leaves the public

uncertain as to the conduct it prohibits or leaves

judges and jurors free to decide, without any legally

fixed standards, what is prohibited and what is not

in each particular case. [citations omitted|

_.. Implicit in this constitutional standard is the

premise that the law must be one that carries an

understandable meaning with legal standards that

courts must enforce.

Giaccio v. State of Pennsylvania, 382 U.S. 401,

, 86 S. Ct. 518, 520-21 (1966).

“A statute is void for ‘vagueness’. . .’ which either forbids

or requires the doing of an act in terms so vague that

men of common intelligence must necessarily guess at

its meaning and differ as to its application...” Zwicker

v. Koota, 389 U.S. 241, 88 S. Ct. 391 (1967), citing,

Connally v. General Construction Co., 269 U.S. 385,

391, 46 S. Ct. 126, 197 ( ). In the instant case, the

appellate courts in Pennsylvania were ringing their

hands over the confusion regarding Pa. R.C.P. 227.1

long after Petitioners filed post-trial motions in Schuy-

Ikill County. A statute or rule of court must give “fair

warning”. Bouie v. City of Columbia, 378 U.S. 347, 8458.

Ct. 1697, 1700 (1964).

In Bouie v. City of Columbia, supra, which involved a

criminal statute, this Court was particularly critical of

the state appellate court’s effort to establish clarity by

judicial gloss after-the-fact:

Because the uncertainty as to the statute's

meaning is itself not revealed until the court’s

decision, a person is not even afforded an opportu-

nity to engage in such speculation before commit-

ting the act in question.

There can be no doubt that a deprivation of the

right of fair warning can result not only from vague

Statutory language but also from an unforeseeable

and retroactive judicial expansion of narrow and

precise statutory language .. .

When a state court overrules a consistent line of

procedural decisions with the retroactive effect of

denying a litigant a hearing in a pending case, it

thereby deprives him of due process of lay ‘in its

primary sense of an opportunity to be heard and to

defend [his] substantive right.’ . . . ‘The violation is

none the less clear when that result is accomplished

by the state judiciary in the course of construing an

otherwise valid . . . state statute.’ [citations omitted]

Id. at 1702-1703.

A new judicial interpretation which is applied retroac-

tively is equivalent to the enactment of laws ex post facto

and is just as unconstitutional. Id. at 1707.

A law must provide an “ascertainable standard of

conduct” or it is not law. Baggett v. Bullitt, 377 U.S.

360, . , 84S. Ct. 1316, 1322 (1964). A law which is

“vague and fluid... may be as much of a trap for the

innocent as the ancient laws of Caligula.” United States

vu. Cardiff, 344 U.S. 174, 176, 73 S. Ct. 189, 190 cited in

Cramp vs. Board of Pub. Inst., Orange County, Fla., 368

U.S. 278, ___, 82 S. Ct. 275, 281 (1961). A standard

that is vague and indefinite is “really no rule or standard

at all.” Champlin Refining Co. v. Corporation Commis-

sion of Oklahoma, 286 U.S. 210, 243, 52S. Ct. 559, 568,

cited in Cramp v. Board, supra, at 281.

D. Pennsylvania Rule of Civil Procedure 227.1,

As Interpreted In This Case By The Commonwealth

Court Of Pennsylvania, Deprived Petitioners Of

Rights Guaranteed To Them Under The Equal Pro-

tection Clause Of The Fourteenth Amendment.

In 1985, Petitioners followed the dictates of Penn-

sylvania Rules of Civil Procedure 227.1, Local Rule

227.1 of Schuylkill County, and case precedents which

appeared to require or sanction the filing of post-trial

motions. In 1987, the Commonwealth Court stripped

Petitioners of their appellate rights by giving retroactive

effect to a 1986 case,® despite the fact that in other cases

involving strikingly similar circumstances, it had es-

chewed so harsh a result. In doing so without adequately

rationalizing its classification scheme, the court denied

to Petitioners the equal protection of the laws:

Decisions involving changes in the law may be

applied completely retroactively . . . However, if the

application chosen does not have some rational

basis, announced with reasonable precision, so that

the rule may be generally known and its results

forecast, it will offend the equal protection clause of

the Fourteenth Amendment. Justice must be even-

handed. See Reed v. Reed, 404 U.S. 71, 75-76, 92 S.

Ct. 251,... Here, it is unclear whether a classifica-

tion has been made, and also unclear what its basis

may be.

Jeknson v. State of Arizona, 462 F. 2d 1352, 1354

(9th Cir. 1972).

* Although not mentioned by the Commonwealth Court in its opinion, that

court had decided for the first time on January 29, 1986, months after

Petitioners had filed the post-trial motion and subsequent notice of appeal,

that post-trial motions were not prerequisite to an appeal from a trial court

adjudication of a challenge to a proposed sale of tax delinquent property

under the Tax Sale Law. 72 P.S. Section 5860.613(a) (the type of

proceeding involved in the instant case). In Re Proposed Private Sale by

Carbon County Tax Claim Bureau, 504 A. 2d 380 (Pa. Cmwith. 1986

This Court has held that arbitrary denial of appellate

rights is violative of the Equal Protection Clause:

‘This Court has never held that the States are

required to establish avenues of appellate review,

but it is now fundamental that, once established,

these avenues must be kept free of unreasoned

distinctions that can only impede open and equal

access to the courts.’ Griffin v. People of State of

Illinois, 351 U.S. 12, 76 S. Ct. 585 (numerous

additional citations omitted).

Williams v. Oklahoma City, 395 U.S. 458,

—___., 89 S. Ct. 1818, 1819 (1969).

Appellate rights may not be based on an “unreasoned

distinction.” Williams v. Oklahoma City, supra, at 1819.

In Lindsey v. Normet, 405 U.S. 56, , we S. Ct.

862, 876 (1972), this Court reviewed an onerous double-

bond prerequisite for filing an appeal in Oregon landlord

and tenant litigation. The Oregon Supreme Court had

explained that this requirement was necessary in order

“to prevent frivolous appeals for the purpose of delay.”

id. at 875. That court’s language rings of the fear.

expressed by of the Superior Court of Pennsylvania, that

litigants might “unilaterally extend the appeal period.”

This Court held that the bond procedure was unconsti-

tutional and that it arbitrarily discriminated against

tenants in bringing their appeals. Although a state is not

required to provide appellate review.

|w{hen an appeal is afforded, however, it cannot

be granted to some litigants and capriciously or

arbitrarily denied to others without violating the

Equal Protection Clause. (Numerous citations

omitted ).

Id at 876.

See also, State of Ohio v. Akron Metro. Park Dist., 281

U.S. 74, 50 S. Ct. 228 (1930); Missouri v. Lewis, 101

U.S. 22, 30 (1879).

The Equal Protection Clause prohibits distinctions

which are “irrational”, “irrelevant”, “unreasonable”,

“arbitrary” or “invidious”. Harper v. Virginia State

Board of Elections, 383 U.S. 663, ___., 86 S. Ct. 1079,

1085 (1966).

“The Equal Protection Clause prevents states

from arbitrarily treating people differently under the

law... The test evolved by this Court for determin-

ing whether an asserted justifying classification

exists is whether such a classification can be

deemed to be founded on some rational and other-

wise constitutionally permissible state policy (cita-

tions omitted)”. Id at 1089.

In the present case, no Pennsylvania Court has offered

to explain what good reason demands that motions for

new trial be filed in some cases and not in others; no

Pennsylvania Court has offered to tell Pennsylvania

practitioners how to predict which case will go which

way; no Pennsylvania Court has explained why the

recognized confusion over the rule leads in one case to

an appeal nunc pro tunc and in another case to a

quashed appeal or why certain litigants should suffer the

application of rules which were created after-the-fact.

This we do not think is fair play. Penalties

impose on one party for the privilege of appeal to the

courts, deterring him from vindication of his rights,

have been held invalid under the Fourteenth

Amendment. |Citations omitted]

Chicago & N.W. Ry. Co. v. Nye-Schneider-Fowler Co.,

260 U.S. 35, , 43 S. Ct. 55, 60 (1922).

In a quite different context, this Court has held that

law enforcement officials, even when involved in the

extremely delicate areas of searches and seizures, can-

not be found to have offended the law if they

reasonably believed in good faith that their

conduct was in accordance with the law even if

decisions subsequent to the search or seizure have

held that conduct of the type engaged in by the

law enforcement officials is not permitted by the

Constitution.

U.S. v. Peltier, 422 U.S. 531, , 95S. Ct. 2313, 2318

(1975). “We cannot regard as blameworthy those parties

who conform their conduct to the prevailing statutory or

constitutional norm.” Id at 2320. In the instant case,

counsel conformed their conduct to the prevailing pro-

cedural norm. Nothing in Pennsylvania’s jurisprudence

alerted them to do otherwise.

CONCLUSION

It was wrong, and in violation of the United States

Constitution, for the Commonwealth Court not only to

articulate an arbitrary, new procedural distinction, but to

use it retroactively to deprive Petitioners of a crucial

right. The holding of the state court is in conflict with

applicable decisions of this Court.

WHEREFORE, for the reasons above stated, Petition-

ers pray that this Court grant their Petition For Writ of

Certiorari.

RICHARD L. CAPLAN, ESQUIRE

Caplan & Luber

1617 J.F.K. Blvd.

Philadelphia, PA 19103

(215) 981-1313

Attorney for Petitioner

Spruce Creek Energy Company, Inc.

JOSEPH H. JONES, JR., ESQUIRE

1 Norwegian Plaza

Pottsville, PA 17901

(717) 622-5933

Attorney for Petitioner

Schuylkill County Tax-Claim Bureau

APPENDIX

SCHUYLKILL COUNTY

TAX CLAIM BUREAU

AND SPRUCE CREEK

ENERGY COMPANY, INC..,

Appellants

TREMONT TOWNSHIP,

PINE GROVE AREA

SCHOOL DISTRICT,

MINERSVILLE AREA

SCHOOL DISTRICT, AND

REILLY TOWNSHIP,

7 Appellees

IN THE COMMONWEALTH

COURT OF

PENNSYLVANIA

NO. 1 C.D. 1986

ORDER

The order of the Court of Common Pleas of Schuyl-

kill County entered August 27, 1984 is affirmed. The

Appellants’ appeal from the orders of the Court of

Common Pleas of Schuylkill County entered September

27, 1985 and December 10, 1985 is dismissed as un-

timely filed.

Date: March 5, 1987

JOHN A. MACPHAIL

John A. MacPhail, Judge

CERTIFIED FROM THE RECORD

AND ORDER EXIT

March 5, 1987

Deputy Prothonotary—Chief Clerk

SCHUYLKILL COUNTY COMMONWEALTH COURT

TAX CLAIM BUREAL OF PENNSYLVANIA

AND SPRUCE CREEK

ENERGY COMPANY, INC.,

Appellants

TREMONT TOWNSHIP

PINE GROVE AREA

SCHOOL DISTRICT,

MINERSVILLE AREA

SCHOOL DISTRICT. AND

REILLY TOWNSHIP, Argued Nov. 19, 1986.

Appellees | Decided Mar. 5, 1987.

Taxing districts petitioned to have proposed private

sale of delinquent tax properties to energy company by

the county, county tax claim bureau, and county board

of commissioners disapproved. The Common Pleas

Court, Schuylkill County, Joseph F. McCloskey, J.,

disapproved sale. Energy company, the county, the

bureau, and the board of commissioners appealed. The

Commonwealth Court, No. 1 C.D. 1986, MacPhail, J..

held that: (1) appeal was untimely; (2) it was not abuse

of discretion to disapprove sale; (3) severability clause

could not save purchase agreement; and (4) trial court

was not required to fix price below which property could

not be sold.

So ordered.

1. Taxation—678

Statutory appeal, which was filed more than 30 days

after date of order granting petition of taxing districts to

disapprove proposed private sale of delinquent tax prop-

erties, was untimely, even though appeal was filed

within 30 davs of order denying post trial motion for

relief; statute under which proceeding had been brought

said nothing about post trial motions, and local rule on

post trial motions was not intended to encompass statu-

tory appeals. 72 P.S. §5860.613; Rules Civ. Proc., Rule

227.1 42 Pa. C.S.A.

2. Taxation—678

It was not abuse of discretion to determine that

private sale of delinquent tax property by county, county

tax claim bureau, and county board of commissioners to

energy company was violative of the law; purchase

agreement was advantageous to the county but had no

benefit whatever to taxing districts. 72 P.S. §§5860.615.,

5860. 702.

3. Taxation—678

Severability clause in purchase agreement for pri-

vate sale of delinquent tax property by the county,

county tax claim bureau, and county board of commis-

sioners to energy company could not provide basis to

uphold any portion of the agreement: whole purchase

agreement was tainted with the principal purpose of

extricating county from law suit, rather than benefiting

taxing districts.

4. Taxation—678

Trial court, which disapproved private sale of delin-

quent tax property by the county, county tax claim

bureau, and county board of commissioners to energy

company, was not required to fix price below which

property could not be sold; purchase agreement involved

6,500 acres, and trial court found that no bid price had

been fixed for the subject tracts in and of themselves

due to fact that agreement involved easements and

obligations of the county as to real estate not yet subject

to tax sale and the discontinuation of federal law suit. 72

P.S. §5860.613. :

Richard L. Caplan, Schwartzman & Hepps, Phila-

delphia, for Spruce Creek Energy Co., inc.

Joseph H. Jones, Jr., County Sol., Pottsville, for

Schuylkill County Tax Claim Bur.

Lanny G. Felty, Pine Grove, Richard A. Adams, Pine

Grove, for appellees.

Edward E. Kopko, Pottsville, for Minersville Area

School District.

Before CRUMLISH, Jr., President Judge, and

CRAIG, MacPHAIL, DOYLE, BARRY, COLINS and

PALLADINO, JJ.

MacPHAIL, Judge.

Spruce Creek Energy Company, Inc. (Spruce

Creek) and Schuylkill County Tax Claim Bureau

(Bureau), sometimes collectively referred to herein as

Appellants, appeal from orders of the Schuylkill County

Court of Common Pleas which disapproved a proposed

private sale of delinquent tax properties to Spruce Creek.

At the heart of the matter now before us is a Private

Land Sale Agreement (Agreement) dated March 24,

1983 wherein Schuylkill County (County), the Bureau

and the Schuylkill County Board of Commissioners were

designated as Grantor and Spruce Creek was designated

as Grantee. The essence of the Agreement is that the

Grantor therein grants an option to Spruce Creek “to

purchase and mine let” certain targeted tracts of real

estate totalling approximately 6500 acres held by the

Grantor and more specifically described in the Agree-

ment, together with certain easements also more fully

described in the Agreement, for an in situ coal gasifica-

tion project. The term of the option is four years. As

consideration, Spruce Creek agrees to pay $60,000.00 to

Grantor upon execution of the Agreement, of which sum

$10,000.00 was to be paid to the County “in its corpo-

rate, governmental capacity rather than as Trustee or

agent for the tax-delinquent lands” and $50,000.00 each

vear thereafter during the term of the option. Upon

exercising its option, Spruce Creek is obligated to pay

the sum of $2,190,000.00, less any sums paid for the

option.

It appears that the real estate in question has been

delinquent for tax purposes for many years.

The Agreement states that the Grantor’s authority to

grant the option is found in Section 614 of the Real

Estate Tax Sale Law (Law), Act of July 7, 1947, P.L.

1368, as amended, 72 P.S. §5860.614.

Upon being notified of the proposed sale as then

provided in Section 613 of the Law, 72 P.S. §5860.613,

the Taxing Districts! affected thereby petitioned the

court of common pleas to disapprove the sale.

While those proceedings were pending, the

County’s Board of Elections approved the following

non-binding referendum question for the April, 1984

ballot: “Do you approve of underground burning of

anthracite coal in Schuylkill! County?” The response to

the referendum was overwhelmingly negative. Spruce

Creek thereupon filed a petition for a change of venue or

a recusal of all judges of the court of common pleas

contending that the referendum made it impossible for

any judge of the trial court, and especially any judge

who might have to face the electors in a retention

election, to render an impartial adjudication. The trial

court, sitting en banc, denied the petition on August 27,

1984.

We will affirm that order on the well-reasoned

opinion of Judge McCloskey reported at ___ Pa.D. &

C.3d __ (1984) (No. S-515-1983, Court of Common

Pleas of Schuylkill County—Civil—Law, filed August

27, 1984).

There then followed a series of evidentiary hearings

wherein it was disclosed, inter alia, that the Agreement

was entered into as part of a stipulation for the settle-

ment of a suit instituted in the Federal District Court by

Spruce Creek against the County and the Bureau.

lremont Township, Pine Grove Area School District, Minersville Area

School District and Reilly Township (Taxing Districts

At the conclusion of the hearings, the trial court

entered an order on September 27, 1985 granting the

Taxing Districts’ petitions to disapprove the sale.

Spruce Creek then filed a post-trial motion for relief

pursuant to Pa.R.C.P. No. 227.1 alleging errors on the

part of the trial court in its opinion and order of Septem-

ber 27, 1985. The motion was denied by order dated

December 10, 1985. Spruce Creek, on December 27

1985 obtained a final judgment on the orders dated

September 27 and December 10, 1985. It filed its appeal

to this Court that same dite. The Notice of Appeal states

that the appeal is from the order of December 10, 1985.

In its brief. however, Appellant states that it seeks

judicial review of the orders entered December 10, 1985,

September 27, 1985 and August 27, 1984.2

[1] There is a serious question in our minds as to

whether the order of September 27, 1985 is properly

before us inasmuch as the instant appeal was filed more

than thirty days after that date. In its opinion addressing

the “post-trial motion” filed by Spruce Creek, the trial

court notes that the motion was filed pursuant to

Pa.R.C.P. No. 227.1. That Rule, of course, relates to

procedures after a trial, whether jury or non-jury. In

subsection (c), the Rule requires that such motions be

filed within ten days after verdict, discharge of the jury

because of inability to agree or nonsuit in the case of a

jury trial or, in the case of trial without a jury, upon

notice of nonsuit or the filing of an adjudication or

decision.

The proceedings now before us were instituted

under and are governed by the provisions of Section

613(a) of the Law, 72 P.S. §5860.613(a), which provided

as follows during the time relevant to this action:

(a) At any time after any property has been

exposed to public sale and such sale is not sold

Inasmuch as the August 27. 1984 order was clearly interlocutory. we

have addressed that order earlier in this opinion

because no bid was made equal to the upset price, as

hereinbefore provided, and whether or not proceed-

ings are initiated pursuant to sections 610 through

612.1, the bureau may, on its own motion, and shall,

on the written instructions of any taxing district

having any tax claims or tax judgments against said

property, agree to sell the property at private sale, at

any price approved by the bureau. Notice of the

proposed sale, stating the price and the property

proposed to be sold, shall be given to each such

taxing district and to the owner of the property. The

corporate authorities of any taxing district, having

any tax claims or tax judgments against the property

which is to be sold or the owner may, if not satisfied

that the sale price approved by the bureau is suffi-

cient, within forty-five (45) days after notice of the

proposed sale, petition the court of common pleas of

the county to disapprove the sale. The court shall, in

such case, after notice to each such taxing district,

the owner, the bureau and the purchaser, hear all

interested parties. After such hearing, the court may

either confirm or disapprove the sale as to it appears

just and proper. If the sale is disapproved, the court

shall at the same time fix a price below which such

property shall not be sold.

This, then, clearly was a statutory appeal. There was

a hearing, not a trial. Under similar circumstances, this

Court recently held that Rule 227.1 applies to civil

actions as defined in Pa.R.C.P. No. 1001 and to statutory

appeals “only when authorized by statute or local rule.”

Johnston v. Department of Transportation, —_

Pa.Commonwealth Ct. ____, __, 517 A.2d 585, 585

(1986). Finding no such statutory authority or local rule

applicable, we quashed the appeal as untimely filed.* In

' See also Shultz v. Board of Supervisors of Jackson Township, 95

Pa.Commonwealth Ct. 550, 505 A.2d 1127 (1986

the instant case, the statute under which the proceed-

ings were brought says noting about post-trial motions.

Local Rule 227.1 of the Schuylkill County Court of

Common Pleas authorizes post-trial motions in the na-

ture of exceptions to a “decision or adjudication in a

non-jury proceeding” (emphasis ours). We doubt that

this language is intended to encompass statutory ap-

peals; we, therefore, will quash the instant appeal sua

sponte on jurisdictional grounds.

Notwithstanding our conclusion that this appeal

should be quashed we, because of the importance of this

case to all litigants and in the interest of judicial econ-

omy, will proceed to address the merits of the appeal in

the event it is later determined that we erred regarding

our disposition of the case on jurisdictional grounds.

The trial court entered its order of September 27.

1985 disapproving of the sale because it found the

Agreement to be “violative and ultra vires of the Real

Estate Tax Sale Law.” The court held that the Agree-

ment violated the Law in the following respects: (1) the

four-year option was in excess of that authorized by

Section 614 of the Law, 72 P.S. §5860.614; (2) the

provision in the Agreement for the payment of

$10,000.00 to the County was contrary to the provisions

of Sections 2024 and 207 of the Law, 72 P.S.

§ §5860.202, 5860.207; (8) a provision in the Agreement

which stated that the County would convey certain

easements over surface lands it did not own at the time

of the Agreement was executed, was violative of Section

102 of the Law, 72 P.S. §5860.102 and (4) a provision in

the Agreement which directed that the Bureau would,

concurrent with the execution of the Agreement, exe-

cute the deeds conveying the targeted real estate and

' We think the trial court meant Section 205 of the Law, 72 P.S

§5860.205, which provided at the time relevant to this action, inter alia

that “the” monevs received by the Bureau from the private sale of lands

shall be paid over first to the Taxing Districts in proportion to the taxes due

them

deliver them to a bank to be held in escrow pending

Spruce Creek’s exercise of the option, was violative of

Section 615° of the Law, 72 P.S. §5860.615, which

states that the Bureau shall make its deed when the

price for the sale of the land has been finally approved.

In its opinion in support of its order denying Spruce

Creek’s motion for post-trial relief, the court said that

since it disapproved the sale as being “procedurally

illegal and a nullity” it did not comply with that part of

Section 613(a) of the Law which states that if the sale is

disapproved, the court should fix a price below which

the property could not be sold.

Spruce Creek contends that: (1) the Agreement

does not violate the Law; (2) if any of the provisions of

the Agreement are invalid the severability clause set

forth therein saves the rest of the Agreement and (3) if

the Agreement is disapproved, the trial court must set

forth a minimum sale price at which the land can be sold

by the Bureau.

It is apparent to us that one of the purposes of the

provisions of the Law with which we are here concerned

is to get real property back on the tax rolls by getting it

into the hands of taxpayers on terms that are advanta-

geous to the Taxing Districts. See Private Sale of County

Owned Lands, 40 Pa.D. & C.2d 301 (1965).¢ In perform-

ing its statutory duty, in circumstances such as those

present here, the trial court possesses full discretion over

the approval or disapproval of any proposed private sale.

McKees Rocks Borough School District Petition, 360 Pa.

285, 62 A.2d 20 (1948). See also Baton Coal Co. Appeal.

365 Pa. 519, 76 A.2d 194 (1950).

' The trial court opinion erroneously refers to Section 315 of the Law

In Private Sale of County Owned Lands, the court said:

The criterion by which the court is to gauge the merits of a

proposed sale is not established as the largest sum which the property

will bring. but rather whether the prospective terms of sale satisty the

court that the bargain is proper and to the advantage of all the taxing

authorities interested.

10a

Our scope of review, therefore, would seem to be

limited to a determination of whether the trial court

abused its discretion. We hold that it did not.

{2} Here, the trial court observed that the Agreement

was entered into as part of a setthement agreement

terminating an action in the United States District Court

for the Eastern District of Pennsylvania (Civil Action No.

82-5198) brought by Sprue Creek against the county

and others.’ The settlement agreement provided that the

County and Bureau would, within twenty days, enter

into an option to purchase agreement with Spruce Creek

for the subject premises. As we have noted, the Agree-

ment also provided for the payment of $10,000.00 to the

County, presumably to reimburse it for costs and coun-

sel fees involved in the Federal suit.® All of this indicates

that the Agreement ‘* advantageous to the County, but

has no benefit whatever to the Taxing Districts.

We do not agree with the trial court that the Bureau

is restricted to a one-year option by virtue of the provi-

sions of Section 702 of the Law, 72 P.S. §5860.702,

relating to the lease agreements. The provisions of that

Section are applicable to real estate purchased by taxing

districts and turned over to the Bureau (so-called Article

VII Property) rather than property not sold because of

insufficient bid (Article VI Property). It nevertheless,

was within the discretion of the trial court to determine

whether a four-year option was unreasonable in light of

the various exploratory privileges granted to Spruce

Creek during the option period.

40 Pa.D. & C.2d at 305-306 (citations omitted ).

“ The action was an anti-trust suit involving lease agreements between the

County and parties other than Spruce Creek relating to real property held

by the Bureau for delinquent taxes including the subject premises.

for, we cannot say at this time that Section 205 of the Law, 72 P.S.

§$5860.205, impacts upon that sum, but suffice it to say that no part of the

$10,000.00 was ever intended to be passed along to the Taxing Districts.

lla

While the Taxing Districts may have no direct

interest in the obligation assumed by the County and

Bureau to grant easements over other lands in the

possession of or to be acquired by the County or Bureau.

the trial court could take this factor into consideration in

determining whether the bargain was proper.

Finally, the provision in the Agreement which called

for the Bureau to execute and deliver deeds in escrow

before the price was approved by the court, clearly

violates Section 615 of the Law, 72 P.S. §5860.615.

Again, this may not directly affect the Taxing Districts

but is another indication in support of the trial court’s

conclusion that the Agreement was for the advantage of

the County/Bureau and not the Taxing Districts.

We are of the opinion that the trial court did not

abuse its discretion in holding the Agreement was

violative of the Law in the several specific aspects

hereinbefore noted.

{3} Regarding the severability clause, the trial court

held that inasmuch as the instant suit was not to enforce

the contract but rather a statutory proceeding to deter-

mine whether the Agreement, if enforced. would be

advantageous to the Taxing Districts, Spruce Creek’s

argument that the remainder of the Agreement was

enforceable, was without merit. We are inclined to

agree. The whole Agreement is tainted with the princi-

pal, if not the only, reason why it was negotiated, to wit,

to extricate the County from a law suit. Even though the

effect of the Agreement would be to restore the real

estate to the tax rolls at least tentatively, the trial court

could and did find other factors in the Agreement which

militated against the interest of the Taxing Districts.

[4] Section 613 of the Law, 72 P.S. §5860.613.

provides that if the court disapproves of a sale, it must

then fix the price below which the property cannot be

sold. Here, the court disapproved the sale but did not fix

a price at which it could be sold. The trial court states

that the reason it did not do so is that the provision in the

12a

statute only applies wherein the court finds the bid price

insufficient. The court noted that the testimony it heard

was not directed to the valuation of the various tracts

involved because the Agreement encompassed more

than the purchase of the 6500 acres; it involved ease-

ments and obligations of the County/Bureau as to real

estate not yet subject to tax sale and the discontinuation

of the Federal law suit. In sum, the trial court found that

no bid price had been fixed for the subject tracts in and

of themselves, and there was no testimony in that

regard; in effect, there was no bid for the real estate per

se.

It appears to this Court that the trial court did

properly exercise its discretion and did perform its

statutory duty to the extent it was required to do so by

virtue of the terms of the Agreement before it.

We, accordingly, would affirm the trial court should

the merits of the appeal before us be deemed to be timely

filed.

ORDER

The order of the Court of Common Pleas of Schuy-

lkill County entered August 27, 1984 is affirmed. The

Appellants’ appeal from the orders of the Court of

Common Pleas of Schuylkill County entered September

27. 1985 and December 10, 1985 is dismissed as un-

timely filed.

l3a

COURT OF COMMON PLEAS

OF SCHUYLKILL COUNTY—CIVIL-LAW

TREMONT TOWNSHIP, No. $-515-1983

PINE GROVE AREA

SCHOOL DISTRICT.

MINERSVILLE AREA

SCHOOL DISTRICT, AND

REILLY TOWNSHIP,

Plaintiffs

Uz.

SCHUYLKILL COUNTY

TAX CLAIM BUREAU

AND SPRUCE CREEK

ENERGY COMPANY, INC.,

Defendants

LANNY G. FELTY, ESQ.—For the Plaintiffs,

Tremont Township and Reilly Township

RICHARD A. ADAMS, ESQ.—For the Plaintiff,

Pine Grove Area School District

EDWARD E. KOPKO, ESQ.—For the Plaintiff,

Minersville Area School District

JOSEPH H. JONES, JR.. ESQ.—For the Defendant,

Schuylkill County Tax Claim Bureau

RICHARD L. CAPLAN, ESQ.—For the Defendant, Spruce Creek

ORDER OF COURT

McC oskey, J.

AND NOW, this 10th day of December, 1985 at

9:00 a.m., it is hereby ORDERED that the post-trial

motion for relief filed by the defendant, Spruce Creek

Energy Company, Inc., is DENIED.

l4da

COURT OF COMMON PLEAS

OF SCHUYLKILL COUNTY—CIVIL-LAW

TREMONT TOWNSHIP. No. $-515-1983

PINE GROVE AREA |

SCHOOL DISTRICT.

MINERSVILLE AREA

SCHOOL DISTRICT. AND

REILLY TOWNSHIP.

Plaintiffs

SCHUYLKILL COUNTY

TAX CLAIM BUREAL

AND SPRUCE CREEK

ENERGY COMPANY, INC,

Defendants

LANNY G. FELTY. ESQ.—For the Plaintiffs.

Tremont Township and Reilly Township

RICHARD A. ADAMS. ESQ.—For the Plaintiff,

Pine Grove Area School District

EDWARD E. KOPKO. ESQ.—For the Plaintiff.

Minersville Area School District

JOSEPH H. JONES. JR.. ESQ.—For the Defendant.

Schuvlkill County Tax Claim Bureau

RICHARD L. CAPLAN. ESQ.—For the Defendant. Spruce Creek

OPINION OF COURT

McCroskey, J.

The detendant. Spruce Creek Energy Company,

Inc.. has filed a post-trial motion pursuant to Pa. R.C.P.

227.1. In its motion Spruce Creek mixes its grounds and

legal argument. It would have been more proper proce-

dure and would have made for a more coherent local

argument if Spruce Creek would have filed a brief in

15a

support of its contentions. Counsel is directed to Schuyl-

kill Rule No. 227.1 which specifically refers to briefs.

The defendant, Spruce Creek, first complains that

those portions of its “Private Land Sale Agreement”

specifically attacked in this Court’s Opinion and Order of

September 27, 1985,

. may be stripped from the contract without

defeating the bargain, leaving a simple sales agree-

ment which is fully performable and compliant with

the Court’s interpretation of the Pennsylvania Real

Estate Tax Sale Law.”

Spruce Creek also complains that the Opinion of Sep-

tember 27, 1985, did not address this contention which

Spruce Creek raised at oral argument. Spruce Creek

fails, however, to cite any authority to support this

contention. The instant action is not one in equity

seeking specific performance of a contract; rather, it is

one brought by the corporate authorities of taxing dis-

tricts pursuant to Section 613 of the act.

Spruce Creek next complains “.. . that the enforce-

ability of the Agreement cannot be vitiated solely on the

ground that it was negotiated incident to the amicable

resolution of an anti-trust suit.” No such finding was

made in the Opinion and Order of September 27. 1985.

The amicable resolution of the defendants’ anti-trust

suit constitutes a benefit exclusive to the defendant, Tax

Claim Bureau, and to the County of Schuylkill, and

excluding the other taxing districts who are the plain-

tiffs in the instant action. The proper disposition of realty

tax sale proceeds is addressed in this Court’s Opinion of

September 27, 1985.

Spruce Creek next complains that at the time of

entry of this Court’s Order and Opinion of September 27.

1985, a price should have been set on the sale realty.

The act does provide that “if the sale is disapproved. the

Court shall at the time fix a price below which such

property shall not be sold.” {72 Pa. C.S.A. §5860.613¢(a)|.

16a

The defendant, Spruce Creek, surely realizes that this

provision is in the statutes to cover the situation when a

private sale is disapproved because the sale price is

insufficient. This Court did not speak to the sufficiency

of the price since this alleged sale was disapproved as

being procedurally illegal and therefore a nullity. Five

(5) days of testimony were offered to the issue of

valuation but the testimony was not directed to the issue

of valuation as to the various pieces of realty subject to

the tax sale proceedings. Moreover, the “Private Land

Sale Agreement” at issue encompassed much more than

the purchase of various pieces of realty subject to the

Schuylkill County Tax Bureau’s sale powers: Spruce

Creek scught to purchase realty not vet subject to tax

sale proceedings; Spruce Creek sought easements over

land not subject to tax sale proceedings; Spruce Creek

and the then majority County Commissioners and the

defendant, Schuylkill County Tax Claim Bureau, sought

to settle a dispute before the United States District Court

for the Eastern District of Pennsylvania by the sale of

said land to Spruce Creek.

Spruce Creek finally complains that there is no

legislative prohibition against a four-year option. We

agree that the statute does not specifically state that the

Tax Claim Bureau may not grant a four-year option, but

Spruce Creek’s interpretation of the Tax Law that the

absence of a prohibition against the granting of such an

option allows the bureau to so act is entirely incorrect.

The law is precisely to the contrary. Absent the legisla-

tive authority to grant options of this nature, the bureau

has no power to so act, and if they do, their action is a

nullitv. 1 Pa. C.S.A. §1921(b) provides:

When the words of a statute are clear and free

from all ambiguity, the letter of it is not to be

disregarded under the pretext of pursuing its spirit.

A“... required rule of statutory construction pro-

vides that in ascertaining legislative intent, the

17a

practical results of a particular interpretation may be

considered.” Lehigh Valley Co-op. Farmers v. Com..,

Etc., 498 Pa. 521, 447 A.2d 948, 960 (1982).

The practical result of Spruce Creek’s four-year option

with use of the realty and the extraction of coal is a

leasehold.

Moreover, as was stated at page 9 of this Court's

Opinion and Order of September 27, 1985,

There is no authority in the act for the Tax

Claim Bureau to compromise any present or future

tax assessment of the respective taxing districts.

Thus, any argument as to the adequacy of the Fifty

Thousand ($50,000.00) Dollars annual payments to

the respective taxing districts in lieu of taxes is

irrelevant.

Spruce Creek’s post-trial motion must be denied.

18a

No. 1 C. D.

Date of Filing in Trial Court:

December 27, 1985

IN THE COMMONWEALTH COURT

OF PENNSYLVANIA

NOTICE OF DOCKETING APPEAL

A Notice of Appeal, a copy of which is enclosed, from

an order of your court has been docketed in the Com-

monwealth Court of Pennsylvania. The docket number

in the Commonwealth Court is endorsed on this notice.

Under Chapter 19 of the Pennsylvania Rules of

Appellate Procedure the Notice of Appeal has the effect

of directing you to transmit the certified record in the

matter to the Prothonotary of the Commonwealth Court.

The complete record, including the opinion of the

trial judge, should be forwarded to the Commonwealth

Court within 40 days of the date of filing of the Notice of

Appeal. Do not transmit a partial record.

Pa. R.A.P. 1921 to 1933 provides the standards for

preparation, certification and transmission of the record.

The address to which you are to transmit the record

is set forth on page 2 of this notice.

NOTICE TO COUNSEL

A copy of this notice is being sent to all parties or

counsel indicated on the the proof of service accompa-

nying the Notice of Appeal. The appearance of all

counsel has been entered on the record in the Common-

wealth Court. Counsel have 30 days from the date of

filing of the Notice of Appeal to file a praccipe to

withdraw their appearance pursuant to Pa. R.A.P.

GO7(b).

19a

If any motions or applications are filed pursuant to

the appellate rules you must include with such motions

or applications a proposed order. Any answers filed

pursuant to said motions must also include a proposed

order. Failure to comply may result in the Court return-

ing the motion or answer to you for compliance. The

Commonwealth Court docket number must be on all

correspondence and documents filed with the Court.

The address to which you are to transmit documents

to this Court are set forth on Page 2 of this notice.

Address all written communications to:

Office of the Prothonotary

Commonwealth Court of Pennsylvania

P. O. Box 11730

Harrisburg, PA 17108

Filings may be made in person at the following

address (except on Saturdays, Sundays and legal holi-

days observed by Pennsylvania Courts) between 9:00

a.m. and 4:00 p.m.

Office of the Chief Clerk

Commonwealth Court of Pennsylvania

Room 624

Sixth Floor

South Office Building

Harrisburg, PA 17120

(717) 787-5884

Pleadings and similar papers (but not paperbooks or

certified records) may also be filed as follows:

Office of the Prothonotary

Commonwealth Court of Pennsylvania

Filing Office

Room 2050

Old Federal Courthouse

Ninth and Chestnut Streets

Philadelphia, PA 19107

(215) 351-5742

20a

The hours of the Philadelphia Filing Office are 9:00

a.m. to 4:00 p.m.

Under Pa. R.A.P. 3702, writs or other process issu-

ing out of the Commonwealth Court shall exit only from

the Harrisburg Office and shall be returnable thereto.

2la

COURT OF COMMON PLEAS

OF SCHUYLKILL COUNTY—CIVIL-LAW

TREMONT TOWNSHIP. No. $-515-1983

PINE GROVE AREA

SCHOOL DISTRICT,

MINERSVILLE AREA

SCHOOL DISTRICT, AND

REILLY TOWNSHIP.

Plaintiffs

SCHUYLKILL COUNTY |

TAX CLAIM BUREAU

AND SPRUCE CREEK

ENERGY COMPANY, INC.,

Defendants

LANNY G. FELTY, ESQ.—For the Plaintiffs,

Tremont Township and Reilly Township

RICHARD A. ADAMS, ESQ.—For the Plainiiff,

Pine Grove Area School District

EDWARD E. KOPKO, ESQ.—For the Plaintiff,

Minersville Area School District

JOSEPH H. JONES, JR., ESQ.—For the Defendant.

Schuylkill County Tax Claim Bureau

RICHARD L. CAPLAN, ESQ.—For the Defendant, Spruce Creek

ORDER OF COURT

McCtoskey, J.

AND NOW, this 27th day of September, 1985 at

1:52 p.m., after hearing and upon consideration of the

pleadings and argument of counsel, it is hereby OR-

DERED that the respective plaintiffs’ Petitions to Dis-

approve Sale are GRANTED, and the sale is

disapproved.

By Trt Court

sS/ McCloskey, .

22a

COURT OF COMMON PLEAS

OF SCHUYLKILL COUNTY—CIVIL-LAW

TREMONT TOWNSHIP No. $-515-1983

PINE GROVE AREA

SCHOOL DISTRICT.

MINERSVILLE AREA

SCHOOL DISTRICT, AND

REILLY TOWNSHIP,

Plaintiffs

SCHUYLKILL COUNTY

TAX CLAIM BUREAU

AND SPRUCE CREEK

ENERGY COMPANY, INC.,

Defendants

LANNY G. FELTY, ESQ.—For the Plaintiffs,

Tremont Township and Reilly Township

RICHARD A. ADAMS, ESQ.—For the Plaintiff,

Pine Grove Area School District

EDWARD E. KOPKO, ESQ.—For the Plaintiff,

Minersville Area School District

JOSEPH H. JONES. JR.. ESQ.—For the Defendant,

Schuvlkill County Tax Claim Bureau

RICHARD L. CAPLAN, ESQ.—For the Defendant, Spruce Creek

OPINION OF COURT

Ni CLOSKI va J

The defendant, Spruce Creek Energy Company,

Inc... on March 24, 1983, entered into a “Private Land

Sale Agreement” with the County of Schuylkill repre-

sented by the ten majority members of the Schuylkill

County Tax Claim Bureau. On March 26, 1983 the Tax

Claim Bureau sent notices of the proposed sale to the

taxing districts in which the instant pieces of and

23a

interests in realty lie. These taxing districts, the plain-

tiffs herein, subsequently filed their respective petitions

to this Court to disapprove the instant sale.

These respective petitions were consolidated on May

18, 1983, per the Honorable Donald D. Dolbin, Judge of

this Court. After extensive pre-hearing litigation, testi-

mony was offered at hearing held December 18, through

21, 1984 and on February 15, 1985. All parties have

submitted memoranda. The matter is now ripe for

disposition.

The defendants entered into their “Private Land

Sale Agreement” for the purchase by Spruce Creek of

deep coal reserves located five hundred (500’ ) feet below

the surface of various pieces of realty located in the

plaintiff taxing districts. At the time Spruce Creek first

took an interest in the premises which are the subject of

the agreement at issue, these premises and others were

subject to a “Coal Exploration Lease Agreement” be-

tween the Schuylkill County Commissioners and the

New Boston Coal Company. While these premises were

subject to that agreement, Spruce Creek made several

written proposals and held several meetings with county

representatives.

The negotiations were not fruitful. Spruce Creek

then initiated suit in the Federal District Court for the

Eastern District of Pennsylvania against Schuylkill

County and others alleging violation of the anti-trust

laws of the United States. The suit was settled on March

10, 1983, by stipulation of the parties to the federal suit.

These parties included the then majority of Schuylkill

County Commissoners and the instant defendants.

Spruce Creek and Schuylkill County Tax Claim Bureau.

The stipulation provided that within twenty (20) days of

the settlement, Schuylkill County and the Schuylkill

County Tax Claim Bureau were to enter into an option

agreement with Spruce Creek for 6572.35 acres in

Tremont and Reilly Townships for an aggregate sales

price of $2,190,000.00

24a

The agreement at issue, which plaintiffs’ contend is

an option to purchase, provides, inter alia:

1) that Spruce Creek amicably settled its action

against Schuylkill County and the Schuylkill County

Tax Claim Bureau in United States District Court for the

Eastern District of Pennsylvania (Spruce Creek Energy

Company, Inc., et al. v. Schuylkill County, et al., 82-

5198);

2) that Spruce Creek pay to Schuylkill County Tax

Claim Bureau the sum of Sixty Thousand ($60,000.00)

Dollars at the agreement’s execution ($50,000.00 of

which to be paid to the respective taxing districts);

3) that Spruce Creek has the

exclusive right and option, pursuant to 72 P.S.

§5860.614, for a period of four (4) years . . . to

purchase and mine let the following estate in land,

Reserves and associated rights in and to the overly-

ing surface thereof for a total price of Two Million

One Hundred and Ninety Thousand Dollars

($2,190,000.00);

4) that the realty interests which Spruce Creek

intends to purchase consist of

All right, tithe and interest in and to all that unse-

vered and unextracted coal estate situated below

five hundred (500) feet of the surface of the Tar-

geted Tracts described in Schedule “A”, with the

unfettered right, at Grantee’s sole expense and

discretion, to explore, test for, locate, extract, re-

move, possess, process and dispose of such coal by

any method (other than surface mining) and in any

form, without further compensation to GRANTOR,

along with ancillary surface rights and easements

supportive of the aforementioned activities, as more

fully described in paragraph 16 hereinafter, upon

those of the Targeted Tracts whose surface is equi-

tably owned by GRANTOR now or, as to newly-

acquired surface only, at the time of GRANTEE’S

woe

execution of its option hereunder (hereinafter “Pur-

chased Assets”);

5) that Spruce Creek agrees to make annual pay-

ments of Fifty Thousand ($50,000.00) Dollars in lieu of

the current real estate taxes;

6) that Spruce Creek agrees to pay Ten Thousand

($10,000.00) Dollars to the County

in its corporate, governmental capacity. rather than

as Trustee or agent for the tax-delinquent lands

constituting the Purchased Assets;

7) that the Schuylkill County Tax Claim Bureau

prepare deeds on the instant realty to Spruce Creek and

that these deeds be held in escrow by the Tremont

National Bank & Trust Company of Pennsylvania pend-

ing closing;

8) that Schuylkill County provide Spruce Creek

with certain easements over the surface of other lands

held by the County and to be acquired by the County

and that Spruce Creek be granted further rights to build

roads, bridges, erect shelters, office trailers on land

owned by the County not subject to the instant sale and

also on land not yet owned by the County;

9) that in the event a court of competent jurisdic-

tion would disapprove the sale, Spruce Creek could

either rescind the agreement upon notice to Schuylkill

County with full refund of all payments made minus the

Ten Thousand ($10,000.00) Dollars payment which

Schuylkill County would retain, or pay the minimum

purchase price, and/or comply with the terms of sale

imposed by the Court; and

10) that if the court confirms the sale, Spruce

Creek’s obligations shall commence to run immediately.

DISCUSSION

The authority of the defendant, Schuylkill County

Tax Claim Bureau to sell the instant realty flows from

the Pennsylvania Real Estate Tax Sale Law (72 P.S.

26a

§5860.101 et seq.). Commentary hereinafter on “the

act” refers to the Pennsylvania Real Estate Tax Sale

Law. “The power given by the act carries with it the

responsibility of seeing that its conditions are complied

with.” In re Tax Claim Bureau of Chester County, 208

Pa.Super. 384, 222 A.2d 602, 604 (1966). Thus, the

agreement must be examined to determine its compli-

ance with the act.

The instant pieces of realty were not sold at their

respective prior public sales because of insufficient bids.

Thus, they are proper subjects for private sale pursuant

to Section 613. This section also gives the petitioners as

the corporato authorities of the taxing districts in which

the instant pieces of realty lie the right to petition this

Court to disapprove the sale.

An option to purchase is a right, without obligation,

to accept an offer under the terms and conditions of the

option agreement. It is not a sale until exercised. The

granting of an ption is not the exercise or use of the

power to sell, but is a suspension of it. Therefore, unless

the act expressly gives the right to so act, one who holds

land in trust for sale has no power to grant an option. See

Hickok v. Still, 168 Pa. 155, 31 A. 987 (1895).

Defendants contend that their agreement is made

pursuant to Section 614 which defines option sale

procedure. Section 614 provides:

(a) The bureau shall have the right to accept

option money to bind the private sale of any such

property at the price offered therefor, which shall be

credited to the purchase price when the sale is

effected, or be retained for the use of the taxing

districts, if the purchase price is not paid over. But if

the purchase price is not approved or confirmed, as

hereinbefore provided, and the sale is not consum-

mated for that reason, the option money shall be

returned to the prospective purchaser.

27a

(b) Before a petition is presented to court for a

subsequent sale, as herein provided, the bureau

shall have the right to accept option money from

any person who agrees to bid a certain agreed price

for the property at the sale, and such money shall be

credited to the purchase price, if such person pur-

chases the property at the sale at a price not less

than the agreed price. If said person does not bid the

amount agreed upon, or more, or if the purchase

price is not paid over, then the option money shall be

retained for the use of the taxing districts. But if the

property is sold to any other bidder for a price in

excess of the agreed offer, the option money shall be

returned to the person having deposited the same.

(emphasis added)

Section 614 provides the Tax Claim Bureau with two

situations in which it may accept money. One, is to bind

a sale after a private bid has been accepted. The second.

is to guarantee a minimum bid at a subsequent public

sale. The Tax Claim Bureau has the authority to hold

option money only until the Court acts on the sale and

no longer. If the Court approves the sale, settlement

must promptly occur. Should the purchaser fail to make

prompt settlement, the option money is forfeited. When

the Court disapproves a sale, the option money is to be

returned to the purchaser. This option procedure was

intended to protect the taxing districts. This interpreta-

tion is in accordance with the Statutory Construction

Act of 1972 (1 Pa. C.S.A. §1501 et seq.) which states at

Section 1922(5) “That the General Assembly intends to

favor the public interest (taxing districts) as against any

private interest (Spruce Creek). The alleged option is

for the benefit of Spruce Creek (a private interest) and

not the taxing districts.

Since the purpose of the act is “. . . to protect

local government against willful. persistent. long-

standing delinquencies.” Huhn v. Chester County. 16

28a

Pa.Cmwlth. 98, 328 A.2d 906, 908 (1974) and “. . . to

provide speedier and more efficient procedures for en-

forcing tax liens... .” Povlow v. Brown, 12 Pa.Cmwlth.

303, 315 A.2d 375, 377 (1974), this Court cannot find

that the legislature intends to allow the Tax Claim

Bureau as trustee (72 P.S. §5860.702) the power or

authority to grant a four-year option, when the act

specifically limits the leasing power of the trustee to one

year.

The property turned over to it, as provided in the

preceding section, shall not be subject to redemp-

tion and until finally sold, as hereinafter provided,

the bureau shal] manage and control the property

fer the trustee county with power, (a) to lease the

property for a period not exceeding one (1) year...

The fact that the statute grants the bureau no power

to lease in excess of one (1) year is indicative of the

intention of the legislature not to encumber land for a

period in excess of that period so that it would be readily

available for sale. To find that the legislature intended

the bureau to have the power to grant options for

unlimited periods while restricting the granting of leases

would be totally inconsistent. This Court finds that it

was the intention of the legislature to enact a procedure

which would encourage the trustee to make every effort

to promote the sale of land held by the bureau and thus

put it back on the tax rolls of the respective taxing

districts.

Section 702 further provides that“... any such lease

may be on a royalty basis for the purpose of extracting

any minerals...” However, the act is silent as to the Tax

Claim Bureau’s power to combine its limited leasing

with option powers. The act makes no provisions for this

type purchase agreement which the defendants chose to

call a “Private Land Sale Agreement.”

oh se

29a

: a grant of the use and possession, in

consideration of something to be rendered, is exactly

what constitutes a lease of the thing to be possessed.

Offerman v. Starr, 2 Pa. 394, 396 (1845).

The instant agreement appears to be a lease, authorized

by the act, for Spruce Creek was granted the right to use

and explore the land for four (4) years in exchange for

four (4) annual Fifty Thousand ($50,000.00) Dollar

payments.

For the above reasons we find that the option and/or

lease provision is in violation of the act.

Section 207 provides for the reimbursement to the

county for costs expended on the sale and Section 202

for the compensation of the county personnel. The act

makes no provision for the County to accept any other

compensation. Section 205 directs the Tax Claim Bu-

reau to pay the sale price or management moneys to the

“respective taxing districts.” All proceeds of a sale must

pass to the taxing districts. See Richards v. County of

Schuylkill, 399 Pa. 522, 161 A.2d 26 (1980). For the

County to receive the additional benefit of a Ten Thou-

sand ($10,000.00) Dollars payment is beyond the act.

Moreover, the County under the instant agreement

would receive as additional benefit the amicable settle-

ment of the defendants’ suit in Federal District Court.

The taxing district of the County of Schuylkill cannot

receive compensation in excess of that provided by

legislative mandate (72 P.S. §5860.205) nor can it

exclude the other respective taxing districts, the plain-

tiff’s herein, from their right to recover tax delinquen-

cies from the sale or management of the instant realty.

The defendant Tax Claim Bureau acts as the

“agents” of the taxing districts (72 P.S. §5860.208) and

the County holds the instant realty as trustee (72 P.S.

§$5860.702). The only valid consideration for entering

into a private sale by the trustee is to recoup as much of

the past due taxes as is reasonable and proper under the

30a

circumstances. This Court finds that there are

other considerations, to wit: 1) the Ten Thousand

($10,000.00) Dollar payment to the County; and 2) the

settling of the federal district court action in which the

plaintiffs herein, the taxing districts, were not parties

thereto. The provisions for the settling of the suit were

meant for and could only benefit the defendant Tax

Claim Bureau and the County of Schuylkill at the

expense of the plaintiff taxing districts.

There is no authority in the act for the Tax Claim

Bureau to compromise any present or future tax assess-

ment of the respective taxing districts. Thus, any argu-

ment as to the adequacy of the Fifty Thousand

($50,000.00) Dollar annual payments to the respective

taxing districts in lieu of taxes is irrelevant.

Section 102 of the act defines the term “property”,

real property which shall include a mobile home or

house trailer permanently attached to land or con-

nected with water, gas. electricity or sewage facili-

ties, subject to a tax lien or against which a claim is

being or has been filed as a lien. “Property”, includes

both seated and unseated lands.

The act makes no provisions for the sale of a nonvested

future interest. Thus, the defendant Tax Claim Bureau

and the then county commissioners had no authority

under the act to agree to convey casements to the

detendant Spruce Creek over land not vet owned by the

County, or land owned by individuals or corporations not

party to their “Private Land Sale Agreement”.

Additionally, Section 515 of the act provides for the

procedure to be tollowed in the preparation and delivery

of deeds on realty purchased subject to the act. The early

preparation of deeds and their “escrow” possession by

the Tremont National Bank is bevond the scope of the

act

AS RI ME te te lee “POE ee HR Ae heel

anti oe

tire. sdetails ath

3la

The defendant, Schuylkill County Tax Claim Bu-

reau and the then majority Schuylkill County Commis-

sioners exceeded their authority under the act specifi-

cally: Section 614 which outlines a limited option

procedure which was not followed by the defendants;

Section 702 which allows leases for only one (1) year;

Section 207 and Section 202 which do not authorize the

Ten Thousand ($10,000.00) Dollar payment to the

County or the settling of the Federal District Court

action; Section 102 which does not allow easements to

be granted over land not yet owned by the County; and

Section 515 which does not authorize the early prepa-

ration of deeds or for deeds to be held in escrow.

The right to make a sale of real estate for unpaid

taxes is wholly statutory and hence the necessity, in

order to give validity to the sale, the provisions of the

statute must be observed. Hickey and Hickey v.

Chalfant, 20 Fay.L.J. 101, 105 (1957).

The “Private Land Sale Agreement” as entered into

by the derendants is violative and ultra vires of the Real

Estate Tax Sale Law of this Commonwealth, and for that

reason the sale must be disapproved even though certain

objectives, such as the settling of a law suit, may be

worthy. Thus, this Court will not address the issue of the

adequacy of price or make a finding of a price below

which this property may not be sold. We, therefore.

enter the foregoing order.

32a

COURT OF COMMON PLEAS

OF SCHUYLKILL COUNTY—CIVIL-LAW

TREMONT TOWNSHIP.

PINE GROVE AREA

SCHOOL DISTRICT,

MINERSVILLE AREA

SCHOOL DISTRICT, AND

REILLY TOWNSHIP,

Plaintiffs

Uv.

SCHUYLKILL COUNTY

TAX CLAIM BUREAU

AND SPRUCE CREEK

ENERGY COMPANY, INC.,

Defendants

LANNY G. FELTY, ESQ.—For the Plaintiffs,

Tremont Township and Reilly Township

RICHARD A. ADAMS, ESQ.—For the Plaintiff,

Pine Grove Area School District

EDWARD E. KOPKO, ESQ.—For the Plaintiff,

Minersvilie Area School District

JOSEPH H. JONES, JR.. ESQ.—For the Defendant,

Schuylkill County Tax Claim Bureau

RICHARD L. CAPLAN, ESQ.—For the Defendant, Spruce Creek

ORDER OF COURT

MCCLOSKEY, J.

No. $-515-1983

ae es es ee SS ee er

AND NOW. this 27th day of August, 1984 at 3:05

p.m., upon consideration of the pleadings and memo-

randa of counsel and after argument before the Court

sitting en banc, it is hereby ORDERED that the “Petition

by Spruce Creek Energy Company for Change of Venue

or tor Recusal of the Judges of the Schuylkill County

Court of Common Pleas” is DISMISSED.

BY THE COURT

s/ McCloskey, J.

—"

33a

COURT OF COMMON PLEAS

OF SCHUYLKILL COUNTY—CIVIL-LAW

TREMONT TOWNSHIP. No. $-515-1983

PINE GROVE AREA

SCHOOL DISTRICT,

MINERSVILLE AREA

SCHOOL DISTRICT, AND

REILLY TOWNSHIP,

Plaintiffs

Uv.

SCHUYLKILL COUNTY

TAX CLAIM BUREAU

AND SPRUCE CREEK

ENERGY COMPANY, INC.,

Defendants |

LANNY G. FELTY, ESQ.—For the Plaintiffs,

Tremont Township and Reilly Township

RICHARD A. ADAMS, ESQ.—For the Plaintiff,

Pine Grove Area School District

EDWARD E. KOPKO, ESQ.—For the Plaintiff,

Minersville Area School District

JOSEPH H. JONES. JR.. ESQ.—For the Defendant,

Schuylkill County Tax Claim Bureau

RICHARD L. CAPLAN, ESQ.—For the Defendant, Spruce Creek

Before HEFFNER, PJ.. LAVELLE. MCCLOSKEY, DOLBIN and

RUBRIGHT, JJ.

OPINION OF COURT

MCCLOSKEY, J.

The plaintiffs are municipalities who challenge the

propriety of a sale by the defendant. Schuylkill County

Tax Claim Bureau to the defendant. Spruce Creek

Energy Company (Spruce Creek). Spruce Creek has

filed a petition for change of venue or for recusal of all

the judges of the Court of Common Pleas of Schuylkill

County. The pleadings are closed, the parties have filed

34a

memoranda by their respective counsel, and argument

has been heard by the Court sitting en banc.

Spruce Creek contends in this non-jury case in

Paragraph No. 16 of its petition

*... Spruce Creek believes that no judge of this

County is capable of rendering a decision which will

appear to the public and to the litigants, in light of

the unequivocal referendum result, as evenhanded

and independent.”

It appears to be the contention of Spruce Creek that

electoral popularity is controlling in judicial decisions.

With this we cannot agree. Most historians opine that it

is the ability of the courts in this country to follow the

law and render a decision in accordance therewith

without regard to the then popular consensus that

separates our judicial system from other countries.

The Code of Judicial Conduct which is the standard

tor guiding the ethics of judges in our great Common-

wealth provides at Canon 3 A.

Adjudicative Responsibilities

(1) A judge should be faithful to the law and

maintain professional competence in it. He should

be unswaved by partisan interests, public clamor, or

fear of criticism. (emphasis supplied )

For this Court to recuse itself because an issue

before it is of some prominence in the community would

be tantamount to an admission that we are incapable of

acting in the manner which judges are sworn to do

Canon 3 C. provides the guides by which a judge

should decide on recusal. It provides as follows

1) A judge should disqualify himself in a pro

ceeding in which his impartiality might reasonably

be questioned, including but not limited to instances

where

35a

(a) he has a personal bias or prejudice

concerning a party, or personal knowledge of

disputed evidentiary facts concerning the pro-

ceeding;

(b) he served as lawyer in the matter in

controversy, or a lawyer with whom he previ-

ously practiced law served during such associa-

tion as a lawyer concerning the matter, or the

judge or such lawyer has been a material wit-

ness concerning it;

fiduciary, or his spouse or minor child residing

in his household, has a substantial financial

interest in the subject matter in controversy or

in a party to the proceeding, or any other inter-

est that could be substantially affected by the

outcome of the proceeding;

(d) he or his spouse, or a person within the

third degree of relationship to either of them, or

the spouse of such a persom

(i) is a party to the proceeding, or an

officer, director, or trustee of a party;

(ii) is acting as a lawyer in the pro-

ceeding;

(iii) is known by the judge to have an

interest that could be substantially af-

fected by the outcome of the proceeding;

(iv) is to the judge’s knowledge likely

to be a material witness in the proceed-

| ae

A cursory glance at this canon indicates that for it to

be triggered, there must be an indication of: personal

bias: prejudice; knowledge; legal association, financial

interest; or familv relationship with one of the parties,

36a

lawvers, or material witnesses. In the instant case all

parties admit there exists no prohibited relationship or

bias.

The legal precedents counsel for the corporate de-

fendant cites all arise out of controversies in which the

judges themselves, their families, judicial colleagues or

former legal colleagues had an interest in or contact with

one or more of the litigants or their counsel. It is

admitted by Spruce Creek that no member of this Court

has any interest, direct or indirect, in the instant sale.

But even if we accept, arguendo, this contention, it

does not lead to the irrebuttable conclusion that Spruce

Creek will receive an unfavorable ruling. The issue

presented by the plaintiffs is not the propriety of Spruce

Creek's proposed use of the land, but the propriety of the

sale. Moreover, should Spruce Creek receive a favorable

ruling in the instant dispute, the plaintiffs and any other

interested party are still free to challenge the propriety of

Spruce Creek’s proposed use before the appropriate

tribunal.

In artful argument counsel for the corporate defen-

dant paints the portrait of a two-headed Chimera: a

judiciary which fears the vengeful malice of disap-

pointed litigants and a know-nothing electorate in a

retention election. It would be dishonorable for this or

any other Court to take flight from this monster of

fantasy. If issues of controversy and public passion

cannot be decided in the Courts, where are they to be

decided?

It is not uncommon in our judicial system for judges

to rule on issues which have raised a public clamor.

Kach time a judge suppresses evidence which may

cause a defendant in a criminal proceeding to go free, he

faces criticism. But in that issue he is not deciding the

guilt or the innocence of the accused but a constitutional

question of substance or procedure. Such is the instant

dispute. Moreover, since demands for recusal can be

used as an indirect means of attempting to choose the

3ia

judge who will sit. United States v. Devlin, 284 F.Supp.

477, 482 (1968). there is “. . . as much obligation upon a

judge not to recuse himself when there is no occasion as

there is for him to do so when there is.” Wapnick vs.

United States, 311 F.Supp. 183, 184 (E.D.NY, 1969);

Rosen vs. Sugarman, 357 F.2d 794, 797 (2d Cir. 1968).

Here the issue is the propriety of the sale of county

land, not the burning of anthracite coal under ground.

Whether or not the burning of anthracite coal under

ground will survive environmental assaults, zoning dis-

putes, legislative assaults, or other challenges, is not an

issue before this tribunal.

To grant the defendants’ request would be an ad-

mission by this Court that no one can receive a fair or

impartial hearing and decision because this Court is

subject to outside influences. The Court is confident

that it can and will live up to the Canons of the Code of

Judicial Conduct and decide this controversy solely on

the facts and the law before it.

President Judge Heffner, and Judges Lavelle, Dol-

bin, and Rubright join this Opinion.

38a

SCHUYLKILL COUNTY IN THE COMMONWEALTH

TAX CLAIM BUREAU, et al., COURT OF

Appellants | PENNSYLVANIA

v |

TREMONT TOWNSHIP

et al.,

NO. 1 C.D. 1986

Appellees

ORDER

NOW, May 14, 1987, having considered appellants’

joint application for reargument, said application is

hereby denied.

By THE COURT:

we |

CERTIFIED FROM THE RECORD

AND ORDER EXIT

May 15, 1987

Deputy Prothonotarv—Chiet Clerk

39a

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

MARLENE F. LacHMAN, Esq 168 CITY HALL

PROTHONOTARY December 8. 1987 PHILADELPHIA PA 19107

PATRICK TASSOS va

DEPUTY PROTHONOTARY

Richard L. Caplan, Esquire

SCHWARTZMAN & HEPPS

2033 Walnut Street

Philadelphia, Pa. 19107

Joseph H. Jones, Jr., Esquire

WILLIAMSON FRIEDBERG & JONES

1 Norwegian Plaza

Pottsville, Pa. 17901

RE: Schuylkill County Tax Claim Bureau and Spruce

Creek Energy Company, Inc. v. Tremont Town-

ship, Pine Grove Area School District, Minersville

Area School District and Reilly Township

No. 465 E.D. ALLOCATUR DOCKET 1987

Dear Sirs:

This is to advise you that the following Order has

been endorsed on your Petition for Allowance of Appeal.

filed in the above captioned matter:

“December 3, 1987.

Petition Denied.

Per Curiam’.

Very truly yours,

PATRICK TASSOS

Deputy Prothonotary

cc: Lanny G. Felty, Esquire

Edwitd] E. Kopko, Esquire

Richard A. Adams. Esquire

40a

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

No. 465 E.D. Allocatur Docket 1987

SCHUYLKILL COUNTY

TAX CLAIM BUREAU

AND SPRUCE CREEK

ENERGY COMPANY, INC..

Petitioners

TREMONT TOWNSHIP.

PINE GROVE AREA

SCHOOL DISTRICT.

MINERSVILLE AREA

SCHOOL DISTRICT, AND

REILLY TOWNSHIP,

Respondents

APPLICATION FOR RECONSIDERATION OF DENIAL

OF ALLOWANCE OF APPEAL

(From Order of Supreme Court dated December 3,

1987, served December 10, 1987, Supreme Court No.

465 E.D. Allocatur Docket 1987, denying Petition For

Allowance Of Appeal Of An Order of Commonwealth

Court dated March 5. 1987, Docket No. S-515-1983,

affirming an interlocutory order of the Schuylkill County

Court of Common Pleas and dismissing as untimely filed

petitioners appeal trom the tinal judgment below).

February 1. 1988

\pplication Denied

Per Curiam

- es

4la

SCHWARTZMAN & HEPPS

BY: RICHARD L. CAPLAN, ESQUIRE

ATTORNEY I.D. No. 36479

JAMES B. MOGUL, ESQUIRE

ATTORNEY I.D. No. 38015

Schwartzman & Hepps Attorney for Petitioner

2033 Walnut St. : Spruce Creek Energy

Philadelphia, PA 19107 Company, Inc.

(215) 977-8000

WILLIAMSON FRIEDBERG & JONES

BY: JOSEPH H. JONES, JR., ESQUIRE

SCHUYLKILL COUNTY SOLICITOR

ATTORNEY I.D. No. 32301

Williamson Friedberg & Jones

| Norwegian Plaza Attorney for Petitioner

Pottsville, PA 17901 ogg fae pl

Schuylkill County Tax

Claim Bureau

(717) 622-5933

ea aaa

42a

CONSTITUTION

OF THE

UNITED STATES OF AMERICA

AMENDMENT 14

Section 1. Citizens of the United States.

Ail persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States: nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

43a

TAXATION AND FISCAL AFFAIRS 72 P.S. §5860.613

§5860.613. Properties not sold because of insufficient bid

may be sold at private sale

(a) At any time after any property has been exposed

to public sale and such sale is not sold because no bid

was made equal to the upset price, as hereinbefore

provided, and whether or not proceedings are initiated

pursuant to sections 610 through 612.1', the bureau

may, on its own motion, and shall, on the written

instructions of any taxing district having any tax claims

or tax judgments against said property, agree to sell the

property at private sale, at any price approved by the

bureau. Notice of the proposed sale, stating the price

and the property proposed to be sold, shall be given to

each such taxing district and to the owner of the

property. The corporate authorities of any taxing district,

having any tax claims or tax judgments against the

property which is to be sold or the owner may, if not

satisfied that the sale price approved by the bureau is

sufficient, within forty-five (45) days after notice of the

proposed sale, petition the court of common pleas of the

county to disapprove the sale. The court shall, in such

case, after notice to each such taxing district, the owner.

the bureau and the purchaser, hear all interested par-

ties. After such hearing, the court may either confirm or

disapprove the sale as to it appears just and proper. If the

sale is disapproved, the court shall at the same time fix

a price below which such property shall not be sold.

As amended 1973, Dec. 21 P.L. 442, No. 157, §2. imd.

effective; 1981, Sept. 26, P.L. 274. No. 92, §6, effective

Jan. 1, 1982.

(

[See main volume of text of (b)]

' Sections 5860.610 to 5860.612-1 of this title

44a

PENNSYLVANIA RULES

CIVIL PROCEDURE

As Amended Through July 7, 1986

Rule 227.1. Post-Trial Relief

(a) After trial and upon the written Motion for

Post-Trial Relief filed by any party, the court may

(1) order a new trial as to all or any of the

issues; or

(2) direct the entry of judgment in favor of any

party; or

(3) remove a nonsuit; or

(4) affirm, modify or change the decision or

decree nisi; or

(5) enter any other appropriate order.

(b) Post-trial relief may not be granted unless the

grounds therefor,

(1) if then available, were raised in pre-trial

proceedings or by motion, objection, point for

charge, request for findings of fact or conclusions of

law, offer of proof or other appropriate method at

trial; and

Note. If no objection is made, error which

could have been corrected in pre-trial proceed-

ings or during trial by timely objection may_pot

constitute a ground for post-trial relief.

(2) are specified in the motion. The motion

shall state how the grounds were asserted in pre-

trial proceedings or at trial. Grounds not specified

are deemed waived unless leave is granted upon

cause shown to specify additional grounds.

45a

after

(1) verdict, discharge of the jury because of

inability to agree, or nonsuit in the case of a jury

trial; or

(2) notice of nonsuit or the filing of the decision

or adjudication in the case of a trial without jury or

equity trial.

If a party has filed a timely post-trial motion, any other

party may file a post-trial motion within ten days after

the filing of the first post-trial motion.

(d) A motion for post-trial relief shall specify the

relief requested and may request relief in the alternative.

Separate reasons shall be set forth for each type of relief

sought.

(e) If a new trial and the entry of judgment are

sought in the alternative, the court shall dispose of both

requests. If the court directs the entry of judgment, it

shall also rule on the request for a new-trial by deter-

mining whether it should be granted if the judgment is

thereafter vacated or reversed, and shall specify the

grounds for granting or denying the request for a new

trial.

(f) The party filing a post-trial motion shall serve a

copy promptly upon every other party to the action and

deliver a copy to the trial judge.

\dopted Oct. 19. 1983. effective Jan. 1. 1984. Amended April 23. 1985. effective Juls

1. 1985

loa

Rules of Court

OF THE

Twenty-First

Judicial District

SCHUYLKILL COUNTY

PENNSYLVANIA

47a

Rule 227.1: Post-Trial Motions

(a) Motions for new trials, for judgment n.o.v., to

take off non-suits, in arrest of judgment, and exceptions

to a decision or adjudication in a non-jury proceeding

with the reasons in support thereof, shall be in writing

and shall be filed within ten days after verdict, non-suit

or adjudication, or within such additional times as may

be allowed by the Court during said ten-day period.

Copies of such motion shall be given promptly to the

Trial Judge, to opposing counsel, and notice thereof to

the court stenographer.

(b) A motion for new trial which alleges after dis-

covery evidence, misconduct of a party or the jury or any

matter of fact which was not brought out at the trial

must be supported by affidavit stating the after discov-

ery, the names of the witnesses in support of the motion,

the substance of their expected testimony, and the

party's belief of its sufficiency to change the verdict:

otherwise, such reasons will be disregarded.

parties in effort to seek agreement as to which portions

of the record shall be transcribed. Only those portions of

the record which relate to the allegations of error

claimed in the motion shall be transcribed.

(d) Briefs of the parties shall be prepared trom the

trial notes of counsel unless the Court directs that the

stenographic record of the case be transcribed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.