# Petition for Writ of Certiorari — Yaracs v. Summit Academy

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1106

## Text

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.

il

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
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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.

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2299%3A1. Public record. Not legal advice.