J. K. & J. B. Whiteford v. H. Davidson, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA John K. and Joseph B. Whiteford, Appellants v. Howard Davidson as an individual and Penn Hills Municipality BEFORE: : : : : : : : No. 2220 C.D. 2007 Submitted: February 22, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: April 2, 2008 John K. Whiteford and Joseph B. Whiteford (the Whitefords) appeal the order of the Court of Common Pleas of Allegheny County (common pleas court) which sustained the preliminary objections of Howard Davidson (Davidson) and Penn Hills Municipality (Penn Hills) (collectively, Appellees) and dismissed the Whitefords first amended complaint.1 1 In July 2003, Joseph B. Whiteford (J.B. Whiteford) applied for and was granted a conditional approval by the Department of Environmental Protection to dig a gas well on his property located on Dalecrest Road in Penn Hills. Whiteford did not secure a grading permit from Penn Hills and improperly disrupted the soil at the site. Penn Hills issued a notice of violation of Sections 301.2 and 301.12 of the Existing Structures Code of Penn Hills (Code) for failure to develop the property in accordance with Site Plan 434 previously approved by the Penn Hills Planning Commission, failure to prevent damage to adjacent property, failure to obtain a grading permit for work not approved by the Site Plan, failure to comply with grading and excavation standards and performance principles. The notice directed him to 1) immediately cease all operations at the location of the gas well except those necessary to comply with storm water management and erosion and sediment control; 2) submit an application for a grading permit in accordance with Section 301.12 of the Code; and 3) repair the damage to Dalecrest Road. (Footnote continued on next page ¦) (continued ¦) When Joseph B. Whiteford failed to comply with the notice, the Penn Hills Enforcement Officer filed two complaints before a district justice. Each complaint alleged violations of Section 301, 301.2, and 301.12 of the Code and was issued on a court supplied form entitled Private Complaint. The District Justice fined J.B. Whiteford $400 plus costs for each violation. J.B. Whiteford appealed to the Court of Common Pleas of Allegheny County which fined him $400 in total. J. B. Whiteford appealed to this Court and contended that because the violations for which he was charged were civil and not criminal he could not be found to have violated the provisions charged because they were brought on a criminal complaint. This Court determined that the violations were civil and not criminal but that issuing the complaint on a criminal form provided J.B. Whiteford with greater protection and did not prejudice him. This Court also addressed whether Penn Hills s action was preempted by the Oil and Gas Act (Act), Act of December 19, 1984, P.L. 1140, as amended, 58 P.S. §§601.101-601.605. This Court determined that it was not: Under this standard then, Whiteford was required to show that the Municipality [Penn Hills] was attempting to regulate what was regulated by the Oil and Gas Act. The Oil and Gas Act deals with activities that flow directly from the operation of the well, such as casing requirements, . . . protection of water supplies, . . . safety devices, . . . and plugging of wells, . . . . However, other than the Municipality s order requiring him to cease operations at the gas well site, which is understandable because one of the directions in the Notice was to repair the damage to Dalecrest Road (the road adjacent to where his well drilling activity was taking place), he offered no evidence that the matters the Municipality were attempting to enforce infringed on any area subject to enforcement under the Oil and Gas Act. Because he has not made out that the Municipality took actions with respect to the DEP permit to operate the gas well, Whiteford has not established that the matter being regulated was within DEP s exclusive jurisdiction. (Citations omitted). Commonwealth v. Whiteford, 884 A.2d 364, 368 (Pa. Cmwlth. 2000). On or about December 12, 2005, the Municipal Code Enforcement Officer, Davidson, again cited J.B. Whiteford for violating Code sections 301.2 and 301.12 for the same violations. The District Justice found J.B. Whiteford guilty. He appealed to the Court of Common Pleas of Allegheny County (trial court) which found J.B. Whiteford guilty and fined him $2,000 plus costs. J.B. Whiteford appealed to this Court. He contended that he did not need (Footnote continued on next page ¦) 2 Additional complaints were issued against the Whitefords including one on January 6, 2006, and thirteen on February 15, and 16, 2007. On or about February 22, 2007, the Whitefords commenced a cause of action in the Court of Common Pleas of Allegheny County (common pleas court) against the Appellees. The complaint alleged false swearing and libel by the Appellees, and that Davidson s unlawful order endangered drilling operations. The Whitefords sought a temporary restraining order to prevent Penn Hills from issuing notices of violations and to stop false swearing, award money damages, and appoint a special master to determine the Whitefords damages from the delay and expense caused by the Appellees which kept the Whitefords from completing their well. The Appellees preliminarily objected. The common pleas court sustained the preliminary objections. The Whitefords were granted leave to amend the complaint. On or about July 5, 2007, the Whitefords filed the First Amended Complaint in Equity and alleged: (continued ¦) to obtain a grading permit from Penn Hills or comply with the Code sections because they were preempted by the Act. This Court determined that J.B. Whiteford was barred from relitigating the preemption issue by the doctrine of collateral estoppel and determined that the trial court s conviction was supported by substantial evidence. This Court also determined that Penn Hills was entitled to attorney s fees because J.B. Whiteford s appeal was frivolous under Pa.R.A.P. 2744 and remanded to the trial court to determine the amount. Commonwealth v. Whiteford, Pa. Cmwlth. No. 1931 C.D. 2006, Filed March 14, 2007. 3 4. DOUBLE JEOPARDY: Penn Hills has prosecuted Joseph B. Whiteford four times for the same crime and has 23 identical criminal prosecutions pending against either Whiteford in Penn Hills Magistrate s court. The four Ordinance 1939 violations alleged in each of twenty-seven (27) Penn Hills private criminal complaints are verbatim identical and filed on different dates from July 28, 2004 to February 20, 2007. Joseph B. Whiteford was convicted of all four criminal Ordinance 1939 violations alleged in Penn Hills first private criminal complaint on 09-02-2004 and every Pennsylvania appeals court affirmed. Since Joseph B. Whiteford s DOUBLE JEOPARDY protection is an absolute bar to any identical criminal prosecution after the first for the same crime, each of sixteen (16) subsequent identical Penn Hills private criminal complaint prosecutions filed against Joseph B. Whiteford after the first is libel. Penn Hills knowingly false accusations in every private criminal complaint filed after the first are defamatory to Whitefords, obviously intended to harm Whitefords personal and business reputations and to threaten Whitefords freedom and property. Penn Hills last 26 private criminal complaints of knowingly false criminal accusations against Whitefords well site violate DOUBLE JEOPARDY and fulfill all seven of the civil requirements for a libel action found at 42 C.S.A. Section 8343. The Whitefords also alleged that DEP had conducted three well site inspections and had found no violations of the Clean Streams Law (CSL)2 with respect to grading, excavating, erosion, and sedimentation which Penn Hills charged in the criminal complaints or notices of violations. The Whitefords alleged that Penn Hills knowingly false accusation of punishable CSL violations in Notices of Violation of Ordinance 1939 ( NOVs ) and subsequent private criminal complaints based on those 2 Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§691.1 691.1001. 4 NOVs are defamatory to Whitefords personal and business reputations, threaten Whitefords freedom and obviously intended to harm Whitefords with fines. Penn Hills knowingly false NOVs and criminal accusations against Whitefords fulfill all seven of the civil requirements for libel found at 42 Pa.C.S.A. Section 8343. First Amended Complaint in Equity, July 5, 2007, Paragraph 5(b) at 4; Reproduced Record (R.R.) at 4. In addition, the Whitefords alleged that because they had repaired all damage to adjacent property in 2004, before any court proceeding, any subsequent complaints or NOVs relating to damage to adjacent property were defamatory and constituted libel. Again, the Appellees preliminarily objected and alleged that the complaint must be dismissed because it was contrary to law and the Whitefords lacked standing pursuant to Pa.R.C.P. No. 1028(a)(5) because the complaint was an attempt to relitgate the issues which had already been decided twice. Penn Hills and Davidson also alleged that the complaint should be dismissed for legal and factual insufficiency under Pa.R.C.P. No. 1028(a)(4): 10. The Plaintiffs [Whitefords] first count is apparently an action for Double Jeopardy against the Defendants [Appellees]. However, nowhere in the Complaint have the Plaintiffs [Whitefords] set forth any reference to law allowing them to proceed in a civil matter against the named Defendants [Appellees], nor does there appear to be any such authority for such a claim. The proper forum for the defense of double jeopardy would have been at [sic] an appeal of the issued citations with the local magistrate. 11. Even if the Plaintiffs [Whitefords] had cited legal authority to raise a double jeopardy claim or defense in any such proceeding, the penalty provisions of the Penn Hills Existing Structures Code (Section 110.2) provides 5 that each day that a violation continues after due notice has been served . . . shall be deemed a separate offense. Therefore, the Defendant Municipality [Penn Hills] was well within its right to issue multiple citations for the same violations, each being a new and separate offense. .... 14. The Plaintiffs [Whitefords] Complaint also fails legally and factually in their labeled claim for libel. Under Pennsylvania law, an action for defamation, which includes libel, requires the Plaintiff to prove the following: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the Plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion. See 42 Pa. C.S.A. § 8343. 15. The Plaintiffs [Whitefords] complaint does not contain any averments related to any of the abovereferenced requirements in an action for defamation. Instead, the complaint is fraught with factual references regarding the Plaintiffs [Whitefords] beliefs that the Oil and Gas Act, referred to in Plaintiffs [Whitefords] complaint as Act 223, preempts the Municipality s [Penn Hills] right to regulate grading and other facets concerned with the previously approved Site Plan. The Plaintiffs [Whitefords] aver, in Paragraph 5(c) of their Complaint, that Penn Hills can produce no evidence DEP inspectors are wrong and moreover, is prohibited by Act 223 from CSL enforcement on well sites. Apparently, the Plaintiffs [Whitefords] fail to understand the two prior Commonwealth Court cases that have ruled that the Municipality of Penn Hills was regulating matters outside the purview of the Oil and Gas Act and was legally allowed to do so. It is the Plaintiffs [Whitefords] failure to abide by the Penn Hills regulations, and the violations resulting therefrom, that have caused such additional violations to be issued. 6 16. The Plaintiffs failure to allege a single averment of any proposed defamation made by the Defendants [Appellees] requires the complaint to be dismissed for lack of legal sufficiency. Preliminary Objections to Plaintiff s First Amended Complaint Raising a Question of Fact, August 7, 2007, Paragraphs 10-11, and 14-16 at 4-6; R.R. at 21-23. Appellees also allege that the complaint should be dismissed for lack of specificity pursuant to Pa.R.C.P. No. 1028(a)(3) and because the Whitefords failed to exercise a statutory remedy pursuant to Pa. R.C.P. No. 1028(a)(7) because they did not appeal the adjudication of notices of violations and complaints filed with the district justice. The common pleas court sustained the preliminary objections and dismissed the complaint with prejudice. The Whitefords persist that the accusations in the Notice of Ordinance Violation were knowingly false and libelous, that the enforcement actions were prohibited by the Act, the Pennsylvania Municipalities Planning Code3, and 18 Pa.C.S. §§4902 an 4904, and that the ordinance enforcement actions violated the Double Jeopardy and Ex Post Facto provisions of the United States Constitution.4 3 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101 11202. This Court s standard of review of an order of the trial court sustaining preliminary objections in the nature of a demurrer is limited to a determination of whether the trial court abused its discretion or committed an error of law. In ruling on preliminary objections, the court must accept as true all well pled allegations of material fact. A demurrer should be sustained only in cases that are free from doubt and only when it appears with certainty that the law permits no recovery under the allegations set forth. Smith v. Pennsylvania 4 (Footnote continued on next page ¦) 7 The Honorable Christine A. Ward ably disposed of the issues that the accusations were false and libelous and that the ordinance enforcement actions violated the Double Jeopardy and Ex Post Facto protections contained in the United States Constitution in her comprehensive opinion. Therefore, we shall affirm on the basis of that opinion. Joseph B. Whiteford and John K. Whiteford v. Municipality of Penn Hills and Howard Davidson, (G.D. 07-003695, Filed January 11, 2008). The Whitefords also contend that Penn Hills Ordinance enforcement actions are prohibited by the Act, the Pennsylvania Municipalities Planning Code, and 18 Pa.C.S. §§4902 and 4904. This Court has already determined that Penn Hills enforcement actions were not preempted or prohibited by the Act in the prior two decisions of this Court. This Court will not revisit these specious arguments. With respect to the Pennsylvania Municipalities Planning Code and 18 Pa.C.S. §§4902 and 4904, this Court is at a loss to ascertain what the Whitefords mean. These statutes were not mentioned in the argument section of their brief to this Court, in their First Amended Complaint or in their brief to the common pleas court. An issue raised in the Statement Questions Involved but not (continued ¦) Employees Benefit Trust Fund, 894 A.2d 874 (Pa. Cmwlth. 2006). This Court has foregone the sequence of the Whitefords arguments. 8 raised in the argument section of a brief is waived. See Harvilla v. Delcamp, 521 Pa. 21, 555 A.2d 763 (1989). Appellees request that this Court determine that the Whitefords appeal is frivolous and impose attorney s fees. Rule 2744 of the Pennsylvania Rules of Appellate Procedure permits an appellate court to award reasonable attorneys fees if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate, or vexatious. After reviewing the entire record, this Court agrees that the Whitefords appeal is frivolous. The Whitefords do not set forth a cause of action for libel. Also, the double jeopardy and preemption issues have already been addressed by this Court, and the Whitefords did not argue for the other issues they raise. Therefore, this Court concludes that the Appellees are entitled to attorney s fees, even though the Whitefords are proceeding pro se, and remands the case to the common pleas court to determine the amount. Pa.R.A.P. 2744. Accordingly, this Court affirms and the case is remanded to the common pleas court to calculate the award of attorney s fees. ____________________________ BERNARD L. McGINLEY, Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John K. and Joseph B. Whiteford, Appellants v. Howard Davidson as an individual and Penn Hills Municipality : : : : : : : No. 2220 C.D. 2007 ORDER AND NOW, this 2nd day of April, 2008, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed and this case is remanded to the Court of Common Pleas of Allegheny County to calculate the award of attorney s fees. Jurisdiction relinquished. ____________________________ BERNARD L. McGINLEY, Judge

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