Petition for Writ of Certiorari — Yaracs v. Summit Academy

iy YS Us.

; 03 589 OCT 9-203

No.

In the

Supreme Court of the United States

WALLY YARACS,

Petitioner,

VS.

SUMMIT ACADEMY AND C.S.C. ACADEMY, INC.;

THE TOWNSHIP OF SUMMIT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Leslie B. Mathis, Esquire

Counsel of Record

220 South Washington Street

Butler, Pennsylvania 16001

(724)287-1986

Attorney for Petitioner

:

sis ’

QUESTIONS PRESENTED

Do due process requirements mandate that a party to a

State Court proceeding be permitted to intervene in a

Federal Court proceedings when the Federal Court

proceeding was filed subsequent to the State Court

proceeding and the Federal Court settlement in effect

mooted the issues pending in the State Court proceeding?

Were the due process rights of petitioner violated by the

fraudulent actions of a party including the frivoious filing

of the Federal lawsuit and the failure of said party to inform

the District Court Judge of the prior State Court proceeding

involving the same issue?

Should a Settlement Agreement adopted by the District

Court be vacated since the Settlement Agreement was not

properly ratified by the Township Supervisors and since the

effect of the Settlement Agreement circumvents

Pennsylvania Zoning Law?

PARTIES TO THE PROCEEDING

The parties are:

Petitioner: Wally Yaracs, (Mr. Yaracs), an individual

Respondent: Summit Academy and C.S.C. Academy, Inc.

(“Summit Academy”), a nongovernmental corporate party to the

proceedings before United States D’ ‘et Court for the Western

District of Pennsylvania and the Uniiee States Court of Appeals for

the Third Circuit. Petitioner states that Summit Academy is a

fictitious name and C.S.C. Academy, Inc., is a parent corporation

for Summit Academy and is not a publicly-traded corporation.

Respondent: The Township of Summit is a Township in the

Commonwealth of Pennsylvania and is a party to the proceedings

before the United States District Court for the Western District of

Pennsylvania and the United States Court of Appeals for the Third

Circuit.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ...--csecccrcorsseseeseee i

PARTIES TO THE PROCEEDINGS .....-----scrtttt? ii

TABLE OF CONTENTS ....~---:---rrrrr ill

TABLE OF AUTHORITIES ...------+sssrssrrrr iv

OPINIONS BELOW ....------:ssrrer 1

MORE TOOIN 25 ..200---n0esrsesseesresseeseeeee es’ 4

STATUTORY PROVISIONS INVOLVED .....----:+°°: 4

STATEMENT OF THE CASE ..-------- 0000007" ive

REASONS FOR GRANTING THE WRIT .....---: ee 0 9

UE AIMNIE . 5. nes staorcecsscerseeseseesereee: 18

APPENDIX

CIRCUIT COURT OPINION ....------+s+057 7" la

ORDER DENYING REHEARING .....-----::: 6a

DISTRICT COURT DECISION ....---se22ee2%5 8a

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TABLE OF AUTHORITIES

CASES

Bank of America _ vs. Hotel Rittenhouse Associates ,

B08 Fe POSOGHGCH. THD oe cccweccscessesess 10, 12

Bougher vs. University of Pittsburgh, &82 F.2d 74,

pe RO eres ere eee ree 15

Burkhalter vs. Montgomery Ward and Company,

coum bf 2 a. rr 10

Grubbs vs. Norris, 870 F.2d 343 (6" Cir. 1989) .......... 10

In Re Fine Paper Antitrust Litigation, 695 F.2d 494,

500 (3d Cir. 1982)........ eae ca heeae ¢ oes 13

Officers for Justice _vs. Civil Service Commission ,

OG Fe PO, FIED hoon n sce nccncccss 10, 13

Owens vs. Okure, 488 U.S. 235, 236, 109 S.Ct. 573,

Fe Se SA ME EEUU oc inc eewecensccenedess 15

Pyle-National Company vs. Amos, 172 F.2d 425

Se eS ee eee ee ak cue wk ihe 10

Triax Company vs. TRW, Inc., 724 F.2d 1224

ig IRRIRDAI B ae ti ORR PEA, re OP en ee 10

U.S. vs. Alcan Aluminum, Inc., 25 F.3d 1174

CE EE 6 eco a cee eat eo dae kien wae ib 10, 12

U.S. Ex Rel. McGough vs. Covington Technologies,

967 F.2d 1391 (9* Civ. 1992)... 2... ccc cee w ce cees 10

Wilson vs. Garcia, 471 U.S. 261, 276, 105 S.Ct.

os ee Ge Te.) ee 15

STATUTES

Federal Rule of Civil Procedure 24(a)(2) ............. 4,9

eG IDE. 6.i shina Ka bene uw bee eh eas nek enuens 4

EE cs cans WAKAO RKO eae eee ewe 4

Ce ov ack coud cade bcces i cehaeees 1, 4, 15

ee a ee cL x suis Vie to C eau akeuee 15

65 Pa. C.S.A. §1102, §1103(a) 2.02... cece eee eee eees 16

IN THE

SUPREME COURT OF THE UNITED STATES

WALLY YARACS,

Petitioner,

vs.

SUMMIT ACADEMY AND C:S.C. ACADEMY, INC-.;

THE TOWNSHIP OF SUMMIT,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

WALLY YACAS, Petitioner, by undersigned counsel,

under appropriate rules of this Court requests that this Court issue a

writ of certiorari to the United States Court of Appeals for the

Third Circuit.

OPINIONS BELOW

The original action in this matter began as a Civil Rights

Complaint filed by Summit Academy pursuant to 42 U.S.C.A.

§1983 on March 28, 2002 against the Township of Summit, Butler

County, Pennsylvania. The Complaint consists of 156 paragraphs.

The statements made in the first 97 paragraphs of the Complaint are

related to facts which occurred in 1996 or 1997. The facts alleged

in the remainder of the paragraphs relate to events which occurred

in the year 2000 or later.

The Supervisors of Summit Township through their legal

counsel had two telephone conversations with Summit Academy

with regard to a possible Settlement Agreement regarding the

Federal lawsuit. The second of the telephone conversations took

place on May 1, 2002, prior to a regularly scheduled Supervisor’s

meeting. At the Supervisor’s meeting on May 1, 2002, Supervisor

Harold Schnur made a Motion to Pass a Resolution to Settle the

Instant Federal Court Litigation. Supervisor John Oesterling also

voted in favor of the Resolution and the third Supervisor, Regis

Karch, abstained. No prior public notice was given by the

Supervisors of their intention to consider any Settlement Agreement

at this Supervisor’s meeting despite the fact that they knew of the

great interest of the residents of Summit Township regarding this

issue. The day following the passage of the Motion to Adopt the

Settlement Agreement, on May 2, 2002, counsel for Summit

Academy and Summit Township presented a Motion to the District

Court for the Western District of Pennsylvania and the District

Court Judge signed an Order adopting the Settlement Agreement as

an Order which settled the entire lawsuit.

In May of 1996, Summit Academy purchased a parcel of

land in Summit Township for the purpose of establishing a

residential juvenile correctional facility. At that time the Summit

Township Supervisor were considering adoption of the Zoning

Ordinance in the Township. A Zoning Ordinance was adopted and

various litigation took place between Summit Academy and the

Township due to Summit Academy’s continued failure to comply

with the Ordinance. Amendments were also enacted to the Zoning

Ordinance which limited residential juvenile correctional facilities to

a maximum of 350 juvenile offenders. The facility purchased by

Summit Academy is not capable of housing more than 350 juvenile

offenders. At no time has Summit Academy had more than 350

juvenile offenders at their property. However, in March of 2000,

during the pendency of the litigation regarding Summit Academy’s

violation of the original Zoning Ordinance, Summit Academy filed a

Building Permit Application No. 24082 requesting a permit to

construct two additional dormitory buildings. At the time of the

filing of the instant lawsuit on March 28, 2002, Summit Academy

was a party to the proceeding before the Summit Township Zoning

Hearing Board related to the Building Permit Application which had

been made in March of 2000. Said Building Permit Application

No. 24082 was denied by the Township Permit Officer and Summit

Academy appealed that determination. -Due to other litigation

pending between Summit Academy and Summit Township, there

was a delay in scheduling a hearing on that Appeal. Ultimately,

however, a hearing was held before the Zoning Hearing Board on

January 21, 2002. At that time, Petitioner, Mr. Yaracs, along with

eight other individual property owners in Summit Township filed an

Appearance and were made parties to that proceeding. Ultimately,

after the filing of the instant lawsuit by Summit Academy, the

Summit Township Zoning Hearing Board on April 10, 2002 issued

a Decision in favor of Summit Academy.

One of the provisions in the Settlement Agreement of May

1, 2002 which was adopted by the District Court as an Order on

May 2, 2002 is paragraph 4 of the Agreement which provides that

the Building Permit Application No. 24082 is approved. That is

the same Building Permit Application which was the subject of the

hearing before the Summit Township Zoning Hearing Board to

which Mr. Yaracs was a party. Neither Mr. Yaracs nor any of the

other individuals who filed Appearances with the Zoning Hearing

Board were parties to the secret negotiations between Summit

Academy and the Township which resulted in the Settlement

including the issuance of the Building Permit.

On May 30, 2002, Mr. Yaracs filed a Petition to Intervene

and Motion to Vacate Consent Order with the United States District

Court for the Western District of Pennsylvania. Ultimately, the

District Court Judge denied the Motion to Intervene and made no

ruling on the Motion to Vacate Consent Order. The Petitioner

appealed and on June 5, 2003, the panel for the United States Court

of Appeals for the Third Circuit affirmed the Decision of the

District Court Judge. In the five page Opinion of the panel, the

Court stated that “[a]lthough there are several reasons for

affirming, we conclude that it was not error to deny the Application

to Intervene because it was not timely”.

On July 11, 2003, the United States Court of Appeals for

the Third Circuit denied a Petition for Panel Rehearing and/or En

Banc Rehearing.

JURISDICTION

Subject matter jurisdiction for the United States District

Court for the Western District of Pennsylvania for the original Civil

Rights Complaint filed by Respondent, Summit Academy is

pursuant to 42 U.S.C.A. §1983.

Subject matter jurisdiction for the Court of Appeals for the

Third Circuit was invoked pursuant to 28 U.S.C.A. §1291.

Jurisdiction of this Honorable Court is invoked under 28

U.S.C.A. §1254(1).

STATUTORY PROVISIONS INVOLVED

Rule 24(a)(2) of the Federal Rules of Civil Procedure

provides as follows:

(a) Intervention of Right. Upon timely application anyone

shall be permitted to intervene in an action: (1) when a

statute of the United States confers an unconditional right

to intervene; or (2) when the applicant claims an interest

relating to the property or transaction which is the subject

of the action and the applicant is so situated that the

disposition of the action may as a practical matter impair or

impede the applicant’s ability to protect that interest, unless

the applicant’s interest is adequately represented by existing

parties.

STATEMENT OF THE CASE

As previously indicated, Summit Academy purchased a

parcel of land in Summit Township, Pennsylvania in May of 1996

for the purpose of establishing a residential juvenile correctional

facility. The facility purchased by the Academy is not capable of

housing more than 350 juvenile offenders and at no time has

Summit Academy had more than 350 juvenile offenders at their

property. Summit Academy had been engaged in various litigation

with Summit Township regarding violations by Summit Academy

of the Township’s Zoning Ordinance. In March of 2000, during the

4

a ee a ae

pendency of some of the litigation regarding Summit Academy’s

violations of the original Zoning Ordinance, Summit Academy filed

a Building Permit Application No. 24082 requesting a permit to

construct two additional dormitory buildings. Said Building Permit

Application No. 24082 was denied by the Summit Township Permit

Officer and Summit Academy appealed that determination. Due to

the other litigation pending between Summit Academy and Summit

Township, there was a delay in scheduling a hearing on that appeal.

During that delay, the then Summit Township Supervisors

negotiated with Summit Academy regarding a comprehensive

settlement of the outstanding issues between the parties. Said

negotiations were kept a secret for a number of months until

February 19, 2001 at which time the text of the proposed agreement

which had been negotiated between Summit Academy and the

Township was published in the special notices section of the local

newspaper, the Butler Eagle. Said Notice advised that the proposed

Settlement Agreement was to be considered by the Summit

Township Supervisors at their meeting two days later, on February

21, 2001 and that an informational public meeting was being held

the following day, on February 20, 2001.

The proposed Settlement Agreement of February 2001 was

in a number of respects similar to the one ultimately adopted by two

of the Supervisors on May 1, 2002, and adopted as a Consent

Decree by the District Court Judge, however, the F ebruary 2001

Agreement provided for a maximum of 700 juvenile offenders at the

facility by January 2009. The May 1, 2002 Settlement Agreement

which was ultimately adopted provides for a maximum of 1200

juvenile offenders at the facility. In an Article dated February 20,

2001, in the Butler Eagle, published the morning of the

informational public meeting being held on February 20, 2001, one

of the Supervisors, John Oesterling, indicated that he planned to

vote in favor of the Settlement proposal.

On February 20, 2001, at the public informational meeting,

Virtually all of the approximately 200 people attending that meeting

opposed the proposal to settle the litigation. Not one individual

indicated that they were in favor of accepting the agreement. The

following day at the Supervisor’s meeting on February 21, 2001,

the Summit Township Supervisors rejected the proposed agreement

with Suramit Academy, with all three Supervisors voting against the

proposal, including Supervisor Oesterling who had previously

indicated that he intended to vote in favor of the Agreement.

After these settlement negotiations failed, subsequently

there was a hearing held before the Summit Township Zoning

Hearing Board related to Summit Academy’s denial of its Building

Permit Application No. 24082. At that time, nine individual

residents of Summit Township, including Petitioner, Mr. Yaracs,

filed an Appearance and were made parties to that proceeding. That

hearing was held on January 21, 2002. At the hearing, the Solicitor

for Summit Township and counsel for the Academy made legal

arguments to the Zoning Hearing Board with regard to their

positions. At that time, counsel for Summit Township vigorously

argued that the Permit Officer properly denied the Building Permit

Application filed by Summit Academy in March of 2000. The

Solicitor for the Zoning Hearing Board requested counsel for

Summit Township and Summit Academy to submit Briefs to the

Zoning Hearing Board prior to the Decision by the Zoning Hearing

Board. Both counsel filed Briefs with the Zoning Hearing Board,

including the detailed arguments by Summit Township Solicitor in

support of the Permit Officer denying the Building Permit to

Summit Academy. All parties were aware that on April 10, 2002,

the Summit Township Zoning Hearing Board was to meet and issue

a Decision with regard to whether the Building Permit was properly

denied. Thirteen days prior to the scheduled announcement by the

Zoning Hearing Board of its Decision, Summit Academy, on March

28, 2002, filed the within Civil Rights action against the Township.

An Article appeared in the Butler Eagle on April 3, 2002 indicating

that Summit Academy had filed the lawsuit in Federal Court for “an

unspecified amount of damages”. Said Article did not indicate that

the Complaint had asked for any injunctive or other equitable relief,

but merely, “an unspecified amount of damages”.

The Supervisors in office at the time of the vote of

February 21, 2001 included two of the Supervisors who are

presently in office, Supervisor John Oesterling and Supervisor

Regis Karch. The other Supervisor did not run for reelection and

retired after his term expired in early 2002. In the fall of 2001,

there was an election contest for the open position on the Summit

Township Board of Supervisors. The individual elected for the

third Supervisor’s seat was Harold Schnur who has a conflict of

interest with regard to any matter related to Summit Academy due

to financial interests his family member has with Summit Academy.

The instant lawsuit was filed clearly to intimidate the

Supervisors of Summit Township to agree to a settlement which

was not in the Township’s best interest. Since nine individual

property owners had become parties to the Zoning Hearing Board

litigation, Summit Academy needed to have another lawsuit pending

so that they could intimidate the Supervisors into an agreement

which was not in the Township’s best interest. The instant Civil

Rights Complaint filed by Summit Academy clearly was frivolous.

Most of the allegations in the Complaint were well beyond the

applicable Statute of Limitations. Further, the timing of the

Complaint was clearly filed in order to intimidate both the Summit

Township Zoning Hearing Board and Summit Township

Supervisors. Further, Summit Academy was aware that the newly

elected Supervisor, Harold Schnur, who clearly had a conflict of

interest with regard to any matters related to Summit Academy,

would vote in favor of any Settlement Agreement which favored

Summit Academy. With that Supervisor on their side, Summit

Academy knew that they only needed to intimidate one of the other

two Supervisors in order to obtain a favorable settlement.

At the April 10, 2002 meeting of the Summit Township

Zoning Hearing Board, the Zoning Hearing Board announced its

Decision in favor of Summit Academy. Apparently, within a couple

of days after that announcement, the Supervisors through their legal

counsel had a telephone conversation with Summit Academy with

regard to a possible Settlement Agreement regarding the Federal

lawsuit. A second telephone conversation took place on May 1,

2002 prior to a regularly scheduled Supervisors meeting. At the

Supervisors meeting on May 1, 2002, Supervisor Harold Schnur

made a Motion to Pass a Resolution to settle the instant Federal

Court litigation. Said Motion was made without Supervisor Schnur

revealing his conflict of interest with Summit Academy which is in

violation of Pennsylvania Law. Supervisor John Oesterling also

voted in favor of the resolution and the third Supervisor, Regis

Karch, abstained. No prior public notice was given by the

Supervisors of their intention to consider any Settlement Agreement

at this Supervisors meeting despite the fact that they knew of the

great interest of the residents of Summit Township regarding this

issue as evidenced by the events occurring in February of 2001

regarding the prior proposed Settlement Agreement. The Settlement

Agreement agreed to by the Supervisors on May 1, 2002 is

significantly less favorable to Summit Township as it allows 1200

residents at the property rather than the prior proposed Settlement

Agreement which only provided 700 residents. At the Supervisors

meeting on May 1, 2002, legal counsel for the Supervisors indicated

that two telephone conversations had taken place between the

Supervisors and legal counsel with regard to the negotiation of the

agreement prior to the Board of Supervisors meeting that evening.

Petitioner, Mr. Yaracs, filed a Notice of Zoning Appeal to

the April 10, 2002 Decision of the Summit Township Zoning

Hearing Board with the Court of Common Pleas of Butler County,

Pennsylvania and said Appeal is presently pending before the

Commonwealth Court of Pennsylvania. One of the provisions of

the Settlement Agreement of May 1, 2002 which was adopted by

the District Court as an Order on May 2, 2002 is Paragraph 4 of

the Agreement which provides that the Building Permit Application

No. 24082 dated March 13, 2000 is approved. That is the same

Building Permit Application which is presently on appeal in the

Commonwealth Court of Pennsylvania. Neither Mr. Yaracs nor

any of the other nine individuals who filed Appearances with the

Zoning Hearing Board were parties to the secret negotiations

between the Academy and the Township which resulted in the

settlement including the issuance of the Building Permit.

On May 30, 2002, Mr. Yaracs filed a Petition to Intervene

and Motion to Vacate Consent Order with the United States District

Court for the Western District of Pennsylvania. Ultimately, the

District Court Judge denied the Motion to Intervene and made no

ruling on the Motion to Vacate Consent Order. On June 5, 2003,

the panel for the United States Court of Appeals for the Third

Circuit affirmed the Decision of the District Court Judge. The

panel filed a five-page Opinion of the Court. In the Opinion the

Court stated that “[a]lthough there are several reasons for

affirming, we conclude that it was not error to deny the Application

to Intervene because it was not timely”. At the end of its Opinion

the Court also stated that it affirmed the District Court for the

reasons set forth in its thorough Opinion with the emphasis on the

untimeliness of the Motion to Intervene. While the panel indicated

that it affirmed the entire District Court Opinion, it clearly appears

that the timeliness was its main concern. The Court of Appeals on

July 11, 2003 denied the Petition for Rehearing.

REASONS FOR GRANTING WRIT

I. THE COURT OF APPEALS FOR THE THIRD

CIRCUIT ERRED IN AFFIRMING THE

DISTRICT COURT’S DENIAL OF

PETITIONERS PETITION TO INTERVENE.

A. Due process requires that Petitioner is

entitled to intervene as of right pursuant to

Rule 24(a)(2).

An individual is permitted to intervene as of right pursuant

to Federal Rule 24(a)(2) when he claims an interest relating to the

property or transaction which is the subject of the action, is so

Situated that the disposition of the action may as a practical matter

impair or impede his ability to protect that interest, unless his

9

interest is adequately represented by existing parties. As indicated

previously, Summit Academy filed the within Civil Rights

Complaint on March 28, 2002. Mr. Yaracs filed a Petition to

Intervene approximately two months later on May 31, 2002. While

typically a mere two month delay in filing a Petition to Intervene

would be granted in almost every case, the Court in this case was

concerned about the timeliness of the filing of the Petition to

Intervene because a Consent Decree was signed by the District

Court Judge on May 2, 2002 adopting the Settlement Agreement

signed on May 1, 2002 settling and disposing of all issues in the

lawsuit. Mr. Yaracs filed his Petition to Intervene and Motion to

Vacate Consent Order within thirty days o* the adoption of the

Settlement Agreement by the Summit Township Board of

Supervisors.

Many Federal Court’s have allowed inter. ention even after

settlements of cases have been made, judgments entered, or

dismissals taken place. See U.S. vs. Alcan Aluminum, Inc., 25

F.3d 1174 (3d Cir. 1994); Bank of America vs. Hotel Rittenhouse

Associates , 844 F.2d 1050 (3d Cir. 1988); U.S. Ex Rel.

McGough vs. Covington Technologies, 967 F.2d 1391 (9" Cir.

1992); Officers for sustice_vs. Civil Service Commission , 934

F.2d 1092 (9" Cir. 1991); Grubbs vs. Norris, 870 F.2d 343 (6"

Cir. 1989); Triax Company vs. TRW, Inc., 724 F.2d 1224 (6" Cir.

1984); Burkhalter vs. Montgomery Ward and Company, 676 F.2d

291 (8" Cir. 1982); Pyle-National Company vs. Amos, 172 F.2d

425 (7" Cir. 1949).

While the District Court Judge recognized that a final

Judgment is not a bar to filing a Petition to Intervene, the District

Judge stated as follows:

In addition, Petitioner offers no persuasive reason

for the delay in seeking to protect his asserted interests. i

Petitioner did not seek to intervene in this action until May |

31, 2002, almost one month after the case was settled and

discontinued. At an earlier stage in these disputes, he

knew, or should have known, of the alleged risks to his

10

physical safety and zoning appeal, and worked to protect

those interests. The pleadings indicate that the parties were

engaged in a long and well-publicized dispute regarding the

Township’s ordinances, and the number of residents at

Plaintiffs’ facility. The facts alleged in Petitioner’s own

filings indicate that he closely monitored the dispute. Under

the circumstances, Petitioner’s suggestion, that he did not

intervene in the litigation because a newspaper article about

the litigation stated that Plaintiffs sought damages (rather

than a permit), is difficult to accept. Petitioner has not

demonstrated that circumstances prevented him from

making an effort to protect his interests at an earlier stage

in this proceeding. Even without holding him to knowledge

of the Complaint at the time that it was filed, there are no

extraordinary circumstances that would warrant

intervention at this stage in the litigation, and the toiulity of

the circumstances lead me to conclude that the Petition to

Intervene is untimely.

The District Court Judge’s statement that Mr. Yaracs knew

or should have known at an earlier stage in the Federal lawsuit of

the alleged risks to his physical safety and zoning appeal and work

to protect those interests is clearly not accurate. The only

information Mr. Yaracs had with regard to the Federal lawsuit was

the information provided in the Article in the Butler Eagle on April

3, 2002. There is nothing in that Article to suggest that Mr. Yaracs

rights pursuant to the Zoning appeal in which he was at that time a

party was at risk. Further there was no indication pursuant to that

Article that his failure to immediately Petition to Intervene in that

Federal lawsuit would result in increased risks to his physical

safety. That Article merely indicated that Summit Academy was

seeking monetary damages from Summit Township for past alleged

violations of their civil rights, most of it which were beyond the

Statute of Limitations. Further, even had Mr. Yaracs obtained a

copy of the Complaint filed in the Federal Court, he still would have

had no idea that his rights regarding the Zoning Appeal to which he

was a party, nor his physical safety was at any risk due to that

11

anes

a

Federal lawsuit. A close examination of the Complaint reveals that

only monetary damages and injunctive relief barring the Township

in engaging in “future exercises of their governmental authority”

were requested. To expect Mr. Yaracs to be able to know that

approximately five weeks after the filing of the civil rights lawsuit

the Township would sign a Settlement Agreement granting relief not

requested in the Complaint is beyond the ability of any person to

know. The premise upon which the District Court Judge determined

that the Petition to Intervene was untimely is simply false. Further,

until the Supervisors meeting the evening of May 1, 2002, every

indication from the Township was that it was vigorously opposing

any expansion by the Academy of its facility. Twenty days earlier

when the Zoning Hearing Board announced its decision the

Township was still vigorously opposing any expansion by the

Academy by opposing its building permit application. Frankly had

Mr. Yaracs attempted to intervene prior to May 1, 2002, he would

have been denied intervention since the Township until that time

was adequately protecting his interests.

The Court of Appeals for the Third Circuit stated in the

U.S. vs. Alcan Aluminum case, supra. at 1183, that “[t]o the extent

the length of time an applicant waits before applying for

intervention is a factor in determining timeliness, it should be

measured from the point at which the applicant knew, or should

have known, of the risk to its rights”. In that case the Court of

Appeals for the Third Circuit reversed the District Court

determination that the Petition to Intervene was not timely filed,

despite the fact that the intervenors filed their Petition to Intervene

four years after the case had been filed and two months after the

case had been settled. Similarly in the Bank of America case,

supra., the Court of Appeals for the Third Circuit again reversed

the decision of the District Court Judge denying the Petition to

Intervene on timeliness grounds despite the fact that the Petition to

Intervene was filed four years after the case had been filed and two

years after the settlement had taken place. The first moment Mr.

Yaracs knew that his rights were at risk was on May 1, 2002 when

the Settlement Agreement was signed by two Supervisors granting

the Building Permit Application to which Mr. Yaracs was an

12

opposing party. Mr. Yaracs filed the Petition to Intervene within 30

days of that time which was clearly timely.

In the case of In Re Fine Paper Antitrust Litigation, 695

F.2d 494, 500 (3d Cir. 1982) the Court of Appeals for the Third

Circuit stated that a Court should consider three factors to aid in

evaluation of the timeliness issue. Those factors include (1) how far

the proceedings have gone when the movant seeks to intervene; (2)

the prejudice which resultant delay might cause to other parties; and

(3) the reason for the delay. In this case all three factors favor -

finding in favor of granting the Petition to Intervene. In this case

not even an Answer had been filed to the Complaint by the

Township. No Court hearings or proceedings had taken place as

the case had only been filed five weeks prior to the entry of the

Consent Decree. There is minimal prejudice to the parties as there

were only two telephone conversations that took place regarding the

negotiation of the agreement. Finally the reason for the delay is that

there was no possible way that Mr. Yaracs could have either known

that his rights may have been effected by the lawsuit prior to May

1, 2002 or could have known that the Township was going to take

an opposing position when they just weeks earlier were arguing

against any expansion by the Academy. In the case of Officers for

Justice vs. Civil Service Commission, supra., the Court of Appeals

for the Ninth Circuit held that 16 years after the suit was filed and

10 years after the consent decree the proposed intervenor could

intervene since his interests were no longer being adequately

protected by the parties.

Finally with regard to the other factors which must be

shown in order to be granted intervention, those factors are also

clearly present. Mr. Yaracs’ interest which is affected by the

Settlement Agreement is his interest in the Building Permit litigation

which is ongoing in the Commonwealth Court of Pennsylvania.

Because of his concern for his personal safety he became a party to

the litigation regarding the Building Permit Application requested

by Summit Academy. Mr. Yaracs opposes any further expansion

by Summit Academy and he acquired a recognized legal right

regarding that issue when he became a party to the litigation

regarding the building permit. The Settlement Agreement

13

extinguishes that legal right as one of its terms is to grant that

building permit. To date the Pennsylvania Courts have been

unwilling to rule on the merits of the Building Permit appeal due to

the existence of the District Court Consent Order adopting the

Settlement Order. Mr. Yaracs rights have clearly been affected.

Finally it is clear that no other party is adequately representing his

rights. Both parties clearly oppose his rights as evidenced by

entering into the settlement.

The Lower Courts’ denial of Petitioner’s Motion to

Intervene has clearly violated Petitioner’s due process rights under

the Constitution. Petitioner was clearly a party with an interest in

the prior State Court proceeding with regard to Summit Academy’s

Building Permit Application. In order to circumvent the State

Court proceedings, Summit Academy filed the instant frivolous civil

rights action against Summit Township. With the help of a

Supervisor who clearly had a conflict of interest and is not

permitted under Pennsylvania law to vote on any matter related to

Summit Academy, it intimidated one other Supervisor to vote in

favor of a Settlement Agreement which clearly was not in the

interest of the Township and which in effect mooted Mr. Yaracs

rights in the State Court proceeding. Petitioner urges this

Honorable Court to grant this Petition to confirm due process

standards which must apply in this case.

B. Fraud by a Party

In this case Summit Academy has clearly perpetrated a

fraud on the Federal Courts initially by filing a frivolous civil rights

lawsuit against Summit Township in order to avoid the then pending

State Court proceeding and second by presenting the Settlement

Agreement to the District Court without advising the Court of the

pending litigation before the Summit Township Zoning Hearing

Board. If the District Court been made aware of the prior State

Court proceedings and the effect the Settlement Agreement would

have had on the other parties who were included in that litigation,

the District Court would have undoubtedly made the other parties

14

ee

aware of the proposed Consent Degree and allowed an opportunity

for objection prior to taking any action.

As previously stated, the Civil Rights Complaint filed by

Summit Academy consists of 156 paragraphs, 97 paragraphs of

which are related to events occurring in 1996 and 1997. It is well

established that claims brought under 42 U.S.C. Section 1983 are

subject to the State Statute of Limitations governing personal injury

actions. See e.g. Owens vs. Okure, 488 U.S. 235, 236, 109 S.Ct.

573, 574, 102 L.Ed. 2d. 594 (1989); Wilson vs. Garcia, 471 U.S.

261, 276, 105 S.Ct. 1938, 1947, 85 L. Ed. 2d 254 (1985). In

Pennsylvania the Statute of Limitations for personal injury actions

is two years. 42 Pa. C.S.A. Section 5524: Bougher vs. University

of Pittsburgh, 882 F.2d 74, 78 (3d Cir. 1989). If in fact Summit

Township was violating Summit Academy’s Civil Rights, it seems

that a lawsuit asserting such would have been filed in 1996 when

Summit Academy asserts such action began. While it was not

obvious at the time that the lawsuit was filed on March 28, 2002, it

did become obvious later why the lawsuit was filed at that time.

Subsequent to the filing of the Civil Rights Complaint, no

action was taken by either Summit Academy or Summit Township

by the filing of any further papers including an Answer or Response

to the Complaint until the Settlement Agreement was presented to

the Court on May 2, 2002 for adoption as a Consent Decree. At the

time that the Settlement Agreement was presented to the District

Court, Summit Academy committed another fraud by failing to

advise the District Court Judge that one of the major provisions of

the Settlement Agreement, that approving the Building Permit which

was the subject of the litigation before the Summit Township

Zoning Hearing Board would in effect moot that proceeding and

that nine other individuals, not parties to the Federal Court litigation

would have their rights adversely affected by the Consent Degree.

Had the District Court been aware of the existence of the State

Court litigation and the effect the Settlement Agreement would have

on said litigation, the Judge may have required the Consent of or at

least notice to the nine other parties prior to adoption of the Consent

15

Degree. Unfortunately, Summit Academy never advised the District

Court Judge of the existence of the State Court litigation or the nine

other individuals who were parties to that litigation prior to

requesting the Court to sign the Consent Degree. Unfortunately,

neither the District Court nor the Court of Appeals for the Third

Circuit have rectified this fraud and Petitioner’s rights have been

violated because of it. Petitioner urges this Honorable Court to

grant the Petition due to the clearly erroneous rulings by the District

Court and Court of Appeals.

oa The Settlement Agreement in This Matter

Should Have Been Vacated by The District

Court

l. The Summit Township

Supervisors improperly ratified the

Settlement Agreement due to a

conflict of interest.

Summit Academy has admitted that Larry Schnur, the son

of Supervisor, Harold Schnur farms approximately 15 acres of

property owned Summit Academy. They further admit that Larry

Schnur farms the property belonging to them at no charge. 65 Pa.

C.S.A. Section 1102 of the Public Official and Employee Ethics

Act of Pennsylvania provides that a conflict of interest for a public

official includes use by a public official of the authority of his office

for the private pecuniary benefit of himself, a member of his

immediate family or a business with which he or his immediate

family is associated. In that section, “immediate family” is defined

a parent, spouse, child, brother or sister. Section 1 103(a) of that

Act provides that no public official shall engage in conduct that

constitutes a conflict of interest. In the instant case, Harold Schnur

neither abstained from voting nor revealed to the Board of

Supervisors his conflict of interest either orally or in writing as

required by this Statute. It is clear that he would have been

required to abstain from the vote on the Settlement Agreement.

Further, had he revealed his conflict of interest, the other vote in

16

favor of the Settlement Agreement which was cast by Supervisor,

John Oesterling, may, in fact, have changed. Mr. Oesterling, is the

same supervisor who changed his mind with regard to initially

voting in favor of a prior Settlement Agreement with Summit

Academy but ultimately voting against the proposed Settlement

Agreement with Summit Academy in February of 2001. Since

Supervisor Schnur did not reveal his conflict of interest, under no

circumstance is he permitted to vote. Therefore, the District Court

should have vacated the Settlement Agreement since it was not

properly adopted by the Summit Township Supervisors.

y a The Settlement Agreement in

effect has either amended the

Zoning Ordinance or granted a

Variance in favor of Summit

Academy.

The effect of the Settlemerit Agreement has resulted in

either an Amendment to the Zoning Ordinance or a Variance being

granted to Summit Academy. The present Zoning Ordinance in

Summit Township only permits 350 juvenile offenders to reside at a

facility such as the one owned by Summit Academy. If Summit

Academy wanted to challenge that Ordinance it could have done so

legally pursuant to the Pennsylvania Municipalities Planning Code

and through the Courts. It did not do so. Further, if Summit

Academy wanted to obtain a Variance from Summit Township in

order to permit more than 350 juvenile offenders to live at their Site,

they could have done so by filing a request for Variance pursuant to

the provisions of the Summit Township Zoning Ordinance and the

Pennsylvania Municipalities Planning Code. They have not done

that either. In order to either challenge the present Zoning

Ordinance, grant a Variance or amend the present Zoning

Ordinance, public notification through advertising and public

hearings would have been required to be held. Summit Academy

chose to file the instant federal lawsuit in order to have the same

result accomplished without having any of the residents of Summit

Township have any input into these actions being taken and by

17

having a secret agreement drawn up within the course of 5 weeks

after they filed their lawsuit. The provisions of the Settlement

Agreement clearly have the effect of either amending the Ordinance

or granting a Variance to Summit Academy. To argue otherwise is

ludicrous. To not allow Mr. Yaracs intervene in this matter, would

not allow any public participation in a very significant change to the

make-up of the zoning of Summit Township. Summit Academy has

all of the protections of the Laws of Pennsylvania to attempt to

either amend the Zoning Ordinance or obtain a Variance if it wants

to have more residents than the present Ordinance allows. Summit

Academy should not be permitted to do something that it either

could not do or did not want to do through the proper procedures

through the Pennsylvania Courts.

CONCLUSION

THEREFORE, Petitioner, Wally Yaracs, requests of this

Honorable Court that it grant his Petition for a Writ of Certiorari to

the United States Court of Appeals for the Third Circuit.

Respectfully submitted,

A vas )Nothas

Leslie B. Mathis, Esquire

Counsel of Record

220 South Washington Street

Butler, Pennsylvania 16001

(724)287-1986

18

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 02-3608

SUMMIT ACADEMY;

C.S.C. ACADEMY, INC.,

Appellees,

V.

THE TOWNSHIP OF SUMMIT,

Appellee,

WALLY YARACS,*

Appellant.

*(Pursuant to Rule 12(a),

Federal Rules of Appellate Procedure)

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 02-cv-0606)

District Judge: The Honorable Donetta W. Ambrose

Submitted under Third Circuit LAR 34.1(a)

Thursday, May 15, 2003

Before: RENDELL, SMITH and ALDISERT, Circuit Judges.

(Filed June 5, 2003)

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Wally Yaracs, a resident of the Township of Summit,

appeals from the district court’s Opinion and Order denying his

application to intervene in a civil rights action. He applied after the

case had been marked closed following a court-approved settlement.

Although there are several reasons for affirming, we

conclude that it was not error to deny the application to intervene

because it was not timely. The case was over, the action was

settled and the case was marked closed before Appellant filed a

petition to intervene.

Because we write only for the parties who are familiar with

the facts and the proceedings at the trial court level, we will limit

our discussion to the controlling legal precept.

I.

Under Rule 24(a), Federal Rules of Civil Procedure, a

person is entitled to intervene if (1) the application for intervention

is timely; (2) the applicant has a sufficient interest in the litigation;

(3) the applicant’s ability to protect that interest may be impaired or

impeded by the disposition of the action; and (4) the interest is not

adequately represented by an existing party in the litigation.

Although these requirements are intertwined, Appellant bears the

burden of proving each specific element in order to intervene as of

right. United States v. Alcan Aluminum, 25 F.3d 1174, 1181 n.9

(3d Cir. 1994).

Against this legal backdrop, we superimpose the long-

standing and well publicized nature of the parties dispute which is

summarized in the following section. This combination of precept

and fact compels us to look no further than the first requirement of

Rule 24(a). We are persuaded that Appellant was on notice of the

ongoing dispute and failed to file a timely application for

intervention.

2a

aii

|

II.

By his own admission, Appellant is extremely interested in

issues that are presented to the Board of Supervisors of Summit

Township. In fact, in the fall of 2001, he was an unsuccessful

candidate for an open position on the Board. In the years leading

up to and including his candidacy, one of the most exacting issues

facing the Board encompassed the heart of the present appeal.

In 1996, Summit Academy- a residential juvenile

correction facility— arranged to buy a plot of land from the

Capuchin Province of St. Augustine. At this time, the Township of

Summit had no zoning ordinance pertaining to land use. Concerned

about the Academy’s potential land use, the Board began to pursue

the passing of such an ordinance in the name of safety for local

residents. Shortly thereafter, an article appeared in the local

newspaper, the Butler Eagle, entitled “St. Fidelis to Be Youth

Center,” which explained the proposed conversion of the seminary.

Local residents echoed the Board’s concerns by forming an interest

group called “Safe Areas for Everyone,” (SAFE).

After a period of drafting and public hearings on the

proposed ordinance, it was enacted in its final form on March 19,

1997, and it ostensibly prohibited Summit Academy’s proposed use.

On May 5, 1997, the Township sent a Notice of Violation of the

ordinance to the Academy, stating that because it was operating a

“boarding home for sheltered care” that exceeds 30 residents, it had

contravened the law.

The Academy appealed to the Summit Township Zoning

Hearing Board on February 28, 2000. The Hearing Board ruled in

favor of the Academy and the Notice of Violation was dismissed.

The Township unsuccessfully appealed this decision to the Court of

Common Pleas of Butler County and thereafter to the

Commonwealth court. This later appeal was withdrawn and the

Common Pleas decision became final.

In March 2000, the Academy filed a building permit

application that was denied by the Permit Officer on June 27, 2000.

The Academy appealed this denial. After unsuccessful attempts to

3a

settle in the spring of 2001, during the pendency of this new dispute,

the Township voted to amend the zoning ordinance in another

attempt to limit the Academy’s use of its land. Following a variety

of hearings, testimony and requests for meetings with which the

parties are familiar, the Academy filed a civil rights action against

the Township on March 28, 2002. Details of this new action were

carried on the front page of the Butler Eagle on April 3, 2002 in an

article headlined “Summit Academy Files Suit.”

Settlement negotiations followed and on May 1, 2002, at a

public meeting, the solicitor for the Township explained the terms

of a resolution and consent order. When the floor was opened for

public comment, no one came forward. The resolution was adopted

by the supervisors and entered by the district court on May 2, 2002.

Il.

Mr. Yaracs did not attempt to intervene in this action until

almost a month after the resolution was entered — on May 31, 2002.

At that time he filed the petition, no action existed in which to

intervene. The docket was closed, and the consent order resolved all

outstanding issues between the parties. The dispute between the

Township and the Academy no longer existed.

Under these circumstances, the district court discussed, in

detail, the multiple reasons why it was denying the right to

intervene. We affirm the district court for the reasons set forth in

its thorough opinion with emphasis on the untimeliness of the

motion to intervene.

* ee * *

We have considered all contentions raised by the parties

and conclude the no further discussion is necessary.

The judgment of the district court will be affirmed.

da

TO THE CLERK:

Please file the foregoing opinion.

/s/ Ruggero J. Aldisert

Circuit Judge

5a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3608

SUMMIT ACADEMY; C.S.C. ACADEMY, INC.,

V.

THE TOWNSHIP OF SUMMIT,

WALLY YARACS,*

Appellant

*(Pursuant to Rule 12(a),

Federal Rules of Appellate Procedure)

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 02-cv-00606)

District Judge: The Honorable Donetta W. Ambrose

Submitted under Third Circuit LAR 34. 1(a)

Thursday, May 15, 2003

Before: RENDELL, SMITH and ALDISERT, Circuit Judges

’ Present: SCIRICA*, Chief Judge, SLOVITER, NYGAARD,

ALITO, ROTH, McKEE, RENDELL, BARRY, AMBRO,

FUENTES, SMITH, CHERTOFF, ALDISERT, ***

and BECKER ** Circuit Judges

*Judge Scirica succeeded to the position of Chief Judge on

| May 4, 2003

** Judge Becker completed his term as Chief Judge on May

4, 2003

***V ote limited to panel rehearing only

6a

SUR PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING EN BANC

The petition for rehearing filed by Appellant having been

submitted to the judges who participated in the decision of this

Court, and to all of the other available circuit judges in active

service, and no judge who concurred in the decision having asked

for rehearing and a majority of the circuit judges of the circuit in a

regular active service not having voted for rehearing by the court en

banc, the petition for rehearing is DENIED.

By the Court,

/s/ Ruggero J. Aldisert

Circuit Judge

Dated: July 11, 2003

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 02-606

SUMMIT TOWNSHIP and C.S.C. ACADEMY, INC.,

Plaintiffs,

-vs-

THE TOWNSHIP OF SUMMIT,

Defendant.

WALLY YARACS,

Movant.

AMBROSE, District Judge.

OPINION

and i

ORDER OF COURT

SYNOPSIS

Petitioner seeks to intervene in this closed case, in which

Plaintiffs, which operate a residential juvenile correctional facility,

alleged that the Township of Summit! violated their civil rights by

arbitrarily and capriciously denying them a building permit and

For purposes of clarity, | refer to the Township and its Supervisors

collectively as the “Township.”

8a

attempting to prevent the operation of their facility.

The long-standing and well-publicized nature of the parties’

dispute provides the background for my decision today. The

circumstances of the dispute, and its resolution by various

adjudicating bodies, are thoroughly set forth in the parties’ and

Petitioner’s submissions. Particularly as the parties agree on the

essential facts, I will not recount the details here. 1a brief, since

1996, Plaintiffs and the Township have engaged in a difference of

opinion-reflected in and comprised of public meetings, Zoning

Hearing Board and court proceedings, zoning ordinances,

newspaper stories, and settlement negotiations— relating to Plaintiffs

efforts to operate and expand its facility, and to obtain a building

permit to do so.

On March 28, 2002, Plaintiffs filed this lawsuit.

Subsequently, at a regularly scheduled public meeting on May 1,

2002, attendees were advised of a proposed agreement to settle this

litigation. The Township then adopted the resolution for settlement,

which was encompassed by the Petition for Entry of Consent Order

to Settle and Discontinue Civil Action that the parties jointly filed in

this action. The Petition acknowledged that the parties had been

engaged in litigation since 1996, and reached settlement after

lengthy negotiation and discussion. Consistent with the Petition, on

May 2, 2002, this Court entered a Consent Order settling and

discontinuing the litigation. In addition, the Clerk of Courts closed

the case on that date. The Consent Order recognized that the

agreement “provides revenue and other considerations advancing

the well being of the Township....” The agreement further entitled

the Academy to its long-sought building permit, and the right to

expand to 1200 residents by the year 2013.

Now pending is a Petition to Intervene pursuant to Federal

Rule of Civil Procedure 24(a) (Docket No. 4). Petitioner, a resident

of the Township, asserts two interests in the litigation: 1) that the

settlement endangers his safety, because of the number of residents

it permits at Plaintiffs’ facility; and 2) that the settlement moots his

appeal of a decision of an April 2002 Zoning Hearing Board

decision that entitled Plaintiffs to a building permit. The appeal is

now pending in state court. If permitted to intervene, Petitioner will

9a

ask that this Court vacate its Consent Order, in part on grounds that

via settlement, the Township circumvented procedural requirements

imposed by state zoning laws.” All parties to the litigation oppose

intervention.

For the following reasons, the Petition to Intervene is

denied.

OPINION

Petitioner seeks to intervene as of right pursuant to

Fed.R.Civ.P. 24(a). The burden of proving each element for

intervention rests on the applicant. United States v. Alcan

Aluminum, 25 F.3d 1174, 1181 n.9 (3d Cir. 1994). Rule 24(a)

reads, in relevant part, as follows:

(a) Intervention of Right. Upon timely application anyone

shall be permitted to intervene in an action:

KKK

(2) When the applicant claims an interest relating

to the property or transaction which is the subject of the

action and the applicant is so situated that the disposition of

the action may as a practical matter impair or impede the

applicant’s ability to protect that interest, unless the

applicant’s interest is adequately represented by existing

parties.

A. Adequacy of Representation

To be entitled to intervene, Petitioner must show that the

Township does not or did not adequately protect his interests in the

context of this litigation. Fed.R.Civ.P.24(a). In this respect,

Petitioner has fallen short of meeting his burden.

*Mr. Yaracs’ Petition to Vacate Consent Order was received into the

Court’s file, but not docketed, presumably pending determination of the Petition

to Intervene. Accordingly, that Petition to Vacate Consent Order is not before

me for decision. Because of my decision today, the Petition will not be

docketed.

10a

An applicant’s rights are not adequately represented under

the following circumstances: (1) the interest of the applicant so

diverges from those of the representative party that the

representative party cannot devote proper attention to the

applicant’s interest; (2) there is collusion between the existing

parties; or (3) the representative party is not diligently participating

in the suit. E.g., Alcan Aluminum, 25 F.3d at 1186. “A party

charged by law with representing the interest of the absent party —

such as a municipality or a state with respect to its citizens — is

presumed to provide adequate representation. E.g., Point Pleasant

Canoe Rental, Inc. v. Tinicum Township, 110 F.R.D. 166, 168

(E.D. Pa. 1986). Petitioner has not demonstrated sharply diverging

interests, collusion, or lack of diligence, or any other reason that

representation was unsatisfactory in this case. Rather, Petitioner

indicates that prior to the settlement, the Township adequately

represented citizens’ interests with regard to Plaintiffs’ facility.

Indeed, the face of the Consent Order suggests that the Township

continued to represent the interests of its residents throughout the

settlement phase of this litigation. For example, the Consent Decree

prohibits Plaintiffs from housing violent offenders, and imposes on

Plaintiffs a duty to notify the police and Township Crime Watch

should a resident leave the premises unauthorized.

The mere fact that the Township entered into a settlement,

the terms of which Petitioner dislikes, does not mean that the

Township failed to represent Petitioner’s interests as a citizen or

property owner. “[A] consent decree may be simply the inescapable

legal consequence of application of fundamental law to facts. That

[Petitioner] would have been less prone to agree to the facts and

would have taken a different view of the applicable law does not

mean that the [Township] did not adequately represent [Petitioner’s]

interests in the litigation.” Pennsylvania v. Rizzo, 530 F.2d 501,

505 (3d Cir. 1976). Petitioner asserts that the settlement is not

favorable to the Township because it allows 1200 residents at the

property by the year 2013. This argument, however, represents a

too-narrow view of the interests accounted for by the Township in

settling this matter. Expansion of Plaintiffs’ facility was, on the

face of the Consent Order, one consideration among many in the

lla

parties’ negotiations. For example, in agreeing to settlement, the

Township expressly considered its revenues and financial well-

being. In sum, Petitioner has not met his burden of establishing

inadequate representation at any stage in this litigation.

Accordingly, intervention will be denied on that basis.

B. Interest in Subject of Action

In order to intervene, Petitioner must also demonstrate that

he has “an ‘interest relating to the property or transaction which is

the subject of the action,” and that the disposition of the action may

as a practical matter impair or impede his ability to protect that

interest. Fed.R.Civ.P.24(a). Even if representation were adequate, |

would deny leave to intervene based on Petitioner’s failure to

establish an interest of the type contemplated by Rule 24(a).

Although the applicable standards are notoriously ill-

defined, it is settled that Rule 24(a)(2) requires a direct, significant

interest in the property or transaction subject to the action.

Donaldson, v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 27

L.Ed.2d 580 (1971). To have the right to intervene, therefore, the

applicant must demonstrate that there is a “tangible threat” to a

legally cognizable interest; it is not sufficient that the interest be

general or indefinite, or incidentally affected. Harris v. Pernsley,

820 F.2d 592, 601 (3d Cir. 1987).

Here, Petitioner has simply not asserted a qualifying

interest in the subject matter of the litigation. The subject of this

lawsuit was the alleged deprivation of constitutional rights, and not

a zoning matter. Specifically, Petitioner asserts that the settlement

will threaten his safety, due to the housing of juvenile offenders at

Plaintiffs’ facilities; he further asserts that his interest in his zoning

appeal has been harmed and rendered moot by the Consent Order.

Even if these interests are considered significant, they are not

directly implicated by the underlying civil rights litigation. As

stated by another court denying intervention on similar facts, “[t]his

is an action based on...federally protected rights...and is not a

zoning matter.” The Assisted Living Group, Inc. v. Upper Dublin

Twp., No. 97-3427, 1997 U.S.Dist. LEXIS 19554 (E.D.Pa. Dec. 8,

12a

1997); see also Halderman v. Pennhurst State School and Hosp., 97

F.R.D. 522, 524-25 (E.D.Pa. 1983). In other words, the Township

either did or did not violate the Plaintiffs’ constitutional rights, and

resolution of that issue would not necessarily encroach upon

Petitioner’s physical safety or use of the courts.

To the extent that I must separately consider Petitioner’s

interest in the remedial phase of the case, ° I reach a similar

conclusion. As Petitioner asserts, certain aspects of the parties’

settlement decree might eventually and indirectly affect Petitioner’s

physical safety. He does not, however, allege a sufficiently direct

and immediate threat in that regard. The settlement authorizes

Plaintiffs’ facility to expand over a period of years until 2013, and

there is no immediate or certain danger that Petitioner might suffer

harm at the hands of one of Plaintiffs’ residents. In other words, the

feared dangers might not materialize. Similarly, the settlement

might or might not conflict with the eventual outcome of

Petitioner’s zoning appeal. Petitioner continues to prosecute the

appeal, which is still pending. * In addition, Petitioner does not

*The facts before me are not analogous to the institutional reform

litigation or far-reaching consent decrees of the type at issue in cases deemed

appropriate for a bifurcated approach to the interest required for intervention.

E.g., Pernsley, 820 F.2d at 601. In addition, Petitioner is too late to intervene

for purposes of fashioning a remedy, rather than mereiy challenging a remedy

already in place. Nevertheless, | briefly address this approach because it is clear

that Petitioner’s asserted interests in this litigation relate solely to the remedial

phase of the case.

*The parties have not briefed the eventuality of a conflict between this

Court’s Consent Order and a state court decision finding Plaintiffs’ building

permit illegal. Even had the parties briefed the issue, | would not reach its

substance because of ripeness concerns and my conclusion on intervention.

Notably, although Petitioner urges that the building permit issued

pursuant to the settlement contravenes state law, several state and local

adjudicating bodies have previously determined that Plaintiffs’ facility has a

legal right to operate and expand.

13a

demonstrate that the settlement directly impinges a protectable legal

right. For example, the Consent Decree did not purport to bind him

or settle his legal claims, if any, against Plaintiffs or Defendants;

interfere with his contractual rights; or affirmatively prevent him

from seeking redress in court. The remote or general effects

claimed here are not sufficient to justify intervention as of right, and

Petitioner has not offered any authority or argument that persuades

me to the contrary. For these reasons, | find that Petitioner does not

have a legally cognizable interest in the remedial phase of this

action, as contemplated by Rule 24(a).

As a final matter, I note that this view of Petitioner’s

interests best serves the various policies behind Rule 24 and the

orderly administration of justice. For example, “the interest’ test is

primarily a practical guide to disposing of lawsuits by involving as

many apparently concerned persons as is compatible with efficiency

and due process.” Nuesse v. Camp, 385 F.2d 694, 700 (D.C.Cir.

1967). Permitting intervention here would be entirely incompatible

with goals of efficiency, basic fairness, and he finality of judgments.

Petitioner’s pleadings make patently clear that intervention would

create a discrete and tangential sub-lawsuit, focusing solely on the

interpretation of municipal zoning ordinances and the ethical

obligations of Pennsylvania’s public officials, within this terminated

federal civil rights litigation. In this particular case, the disruption

that would attend intervention is unwarranted.

C. Timeliness

As discussed above, Petitioner’s asserted interest is,

essentially, limited to an interest in the subject matter of the

settlement, rather than the litigation itself. To the extent that

Petitioner intends to assert that the pre-settlement litigation provides

a foundation for him to intervene, however, I would still deny his

Petition. In that case, = addition to a lack of representational

inadequacy and sufficient interest, I would find the Petition

untimely.

Timeliness, as a general matter, is considered in light of the

totality of the circumstances. Alcan Aluminum, 25 F.3d at 1181-

l4a

82. The following factors should guide a court’s inquiry into the

timeliness of a motion to intervene as of right: (1) the stage of the

proceedings; (2) the prejudice that delay may cause the parties; and

(3) the reason for the delay. Mountain Top Condominiu ss’n V.

Dave Stabbert Master Builder, Inc., 72 F.3d 361, 369 (3d Cir.

1995). Although a final judgment is not a bar to filing a motion to

intervene, “[t]here is considerable reluctance on the part of the

courts to allow intervention after the action has gone to judgment

and a strong showing will be required of the applicant.” 7C Wright,

Miller & Kane, Federal Practice and Procedure: Civil 2d § 1916, at

444-45 (West 1986).°

Here, the pertinent factors weigh against permitting

intervention. For example, the case has moved past its final stages.

Indeed, because the matter is closed, there is no longer any

proceeding in which to intervene. Moreover, reopening a matter

closed by consent will prejudice the parties, who have invested time

and effort, and accounted for a wide range of concerns, in resolving

their dispute. E.g., Farmland Dairies v. Commissioner of the New

York State Dept. of Agriculture and Markets, 847 F.2d 1038, 1044

(2d Cir. 1988); City of Bloomington v. Westinghouse Electric

Corp., 824 F.2d 531, 535 (7™.Cir. 1987).

In addition, Petitioner offers no persuasive reason for the

delay in seeking to protect his asserted interests. Petitioner did not

seek to intervene in this action until May 31, 2002, almost one

> motion to intervene after entry of a decree should be denied except

in extraordinary circumstances.” Delaware Valley Citizens Council for Clean Air

v. Pennsylvania, 674 F.2d 970, 975 (3d Cir. 1982). This proposition has been

limited to situations when a proposed intervenor seeks to relitigate the

underlying lawsuit, rather than an ancillary matter. E.g., Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 780 n.7 (3d Cir. 1994). Pansy, however, involved a

media challenge to a confidentiality order issued attendant to settlement, in

which the intervenor would litigate a question entirely unrelated to the substance

of the lawsuit itself. Here, Petitioner’s asserted interests for Rule 24(a)

purposes are tangential, but the ultimate question he seeks to litigate (i.e., that

of Plaintiffs’ permit) was central to the underlying lawsuit. This situation is

materially distinguishable from the ancillary intervention at issue in Pansy.

Accordingly, the principles and reasoning enunciated in Delaware Valley remain

persuasive in this case.

15a

month after the case was settled and discontinued. At an earlier

stage in these disputes, he knew, or should have known, of the

alleged risks to his physical safety and zoning appeal, and worked

to protect those interests. The pleadings indicate that the parties

were engaged in a long and well-publicized dispute regarding the

Township’s ordinances, and the number of residents at Plaintiffs’

facility. The facts alleged in Petitioner’s own fillings indicate that

he closely monitored the dispute. Under the circumstances,

Petitioner’s suggestion, that he did not intervene in the litigation

because a newspaper article about the litigation stated that Plaintiffs

sought damages (rather than a permit), is difficult to accept.

Petitioner has not demonstrated that circumstances prevented him

from making an effort to protect his interests at an earlier stage in

this proceeding. Even without holding him to knowledge of the

Complaint at the time that it was filed, there are no extraordinary

circumstances that would warrant intervention at this stage in the

litigation, and the totality of the circumstances lead me to conclude

that the Petition to intervene is untimely.

CON SION

In conclusion, considering all of the pertinent factors and

circumstances, I conclude Petitioner has not met his burden of

demonstrating that he has the right to intervene in this case.

Without minimizing Petitioner’s interests in his physical safety and

legal processes, this litigation and Rule 24(a) simply do not provide

the appropriate routes for vindicating those interests. Because he

will not be permitted to intervene, I need not reach the merits of

Petitioner’s request to vacate the Consent Order. For all of the

above reasons, the Petition to Intervene will be denied.

An appropriate Order follows:

SEREKEAEREKEEKEREREKEESE

DATE FILED: AUGUST 19, 2002

PLAINTIFF’S COUNSEL: ECKERT SEAMANS CHERIN

& MELLOT

ATTN JAMES H NORRIS ESQ

16a

600 GRANT STREET 44™

FLOOR

PITTSBURGH, PA 15219

DEFENDANT’S COUNSEL: REED SMITH SHAW &

MCCLAY

ATTN JOEL P. AARONSON

ESQ

435 SIXTH AVE

PITTSBURGH PA 15219-1886

MOVANT’S COUNSEL: CHRISTINE M NEBEL ESQ

220 S WASHINGTON ST

BUTLER PA 16001

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 02-606

SUMMIT TOWNSHIP and C.S.C. ACADEMY, INC.,

Plaintiffs,

-VS-

THE TOWNSHIP OF SUMMIT,

Defendant.

WALLY YARACS,

Movant.

AMBROSE, District Judge.

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ORDER OF COURT

AND NOW, this 19" day of August, 2002, it is hereby

ORDERED that Mr. Yarac’s Petition to Intervene (Docket No. 4)

is DENIED.

BY THE COURT:

Donetta W. Ambrose

U.S. District Judge

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a ieee