IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Chris Pfaff, :
Appellant :
:
v. : No. 30 C.D. 2022
:
Terry Heimbach, Thomas Little, :
and Cooper Township : Submitted: May 19, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: August 17, 2023
Appellant Chris Pfaff (Appellant), pro se,1 appeals three orders issued by the
Court of Common Pleas of the 26th Judicial District – Montour County Branch
(Common Pleas), each of which related to Appellant’s challenge to the legality of
Cooper Township (Township) Ordinance No. 2020-0730. Through those orders,
Common Pleas respectively sustained Appellees Terry Heimbach, Thomas Little,
and the Township’s (collectively, Appellees) joint preliminary objections and
dismissed Appellant’s Amended Complaint; denied Appellant’s motion for
reconsideration and overruled his objections to Appellees’ motion to dismiss; and
denied Appellant’s additional motions for reconsideration, granted Appellees’
motion to dismiss, and dismissed Appellant’s “Amended Complaint Against [sic]
1
As we have remarked in the past, though an individual may certainly decline to engage
the services of a lawyer in a matter such as this one, “any layperson choosing to represent
[themselves] in a legal proceeding must, to some reasonable extent, assume the risk that [their]
lack of expertise and legal training will prove [their] undoing.” Groch v. Unemployment Comp.
Bd. of Rev., 472 A.2d 286, 288 (Pa. Cmwlth. 1984).
with Petition Raising Objections to Ordinance No. 2020-0730 of Cooper Township,
Montour County, Pennsylvania, and for Other Judgments and Penalties as the Court
Advises” (Amended Complaint) with prejudice. We affirm in part and vacate and
remand in part.
I. Background
Appellant is a member of the Township’s three-person Board of Supervisors
(Board). Reproduced Record (R.R.) at 74-75.2 On July 30, 2020, the Board’s two
other members, who are two of the named appellees in this matter, voted in favor of
approving Ordinance No. 2020-0730. See id. at 76. This Ordinance had the effect
of vacating portions of two public roads in the Township. See id.
Thereafter, on August 31, 2020, Appellant filed what he called a “Petition
Raising Objections to Ordinance No. 2020-0730 of Cooper Township, Montour
County, Pennsylvania, and for Other Judgments and Penalties as the Court Advises”
(Complaint) in Common Pleas. In response, Appellees filed preliminary objections
thereto on September 30, 2020. On November 30, 2020, Appellant filed a “Request
for Leave of the Court to Amend,” which Common Pleas granted on December 9,
2020. Id. at 68. In doing so, Common Pleas directed Appellant to file his Amended
Complaint within seven days. Id. Appellant complied with Common Pleas’ directive
by filing his Amended Complaint the following day. Therein, he asserted that the
Board’s approval of Ordinance No. 2020-0730 violated multiple provisions of The
2
Appellant has failed to comply with the Rules of Appellate Procedure’s technical
requirements regarding how a reproduced record’s pages must be numbered. See Pa. R.A.P. 2173
(“[T]he pages of . . . the reproduced record . . . shall be numbered separately in Arabic figures[,] .
. . thus 1, 2, 3, etc., followed . . . by a small a, thus 1a, 2a, 3a, etc.”). For simplicity’s sake, however,
we will nevertheless cite to the Reproduced Record by using the page designations provided by
Appellant.
2
Second Class Township Code3 and the Sunshine Act.4 Id. at 75-87. Accordingly,
Appellant requested that Common Pleas rule that Ordinance No. 2020-0730 was
invalid, impose monetary penalties against the Board’s other supervisors, award him
costs, and grant any other relief Common Pleas believed was justified under the
circumstances. Id. at 87-89.
Appellees then filed preliminary objections to the Amended Complaint on
December 30, 2020. In doing so, Appellees asserted that Appellant had failed to state
a legally viable Sunshine Act-based claim in his Amended Complaint, as well as that
he had improperly joined the Township as a defendant to his action. Id. at 178-80.
On those bases, Appellees requested that Common Pleas dismiss the Amended
Complaint with prejudice. Id. at 181. Appellant responded in opposition on January
13, 2021, through a motion to dismiss Appellees’ preliminary objections to his
Amended Complaint. Id. at 98-113. Common Pleas then held oral argument
regarding the preliminary objections on March 18, 2021, and subsequently issued an
order on May 3, 2021, through which it sustained Appellees’ preliminary objections,
in full and “with prejudice.” See id. at 7-12.
This prompted Appellant to take two additional steps at the Common Pleas
level. First, on May 24, 2021, he filed a motion for reconsideration, in which he
requested that Common Pleas review the arguments he had made in his January 13,
2021 motion to dismiss and then vacate its May 3, 2021 order that had sustained
Appellees’ preliminary objections. Id. at 117-24. Second, on June 2, 2021, he filed
what he called a “Notice of Conditional Intent to Appeal the [Opinion and] Order of
this Court [of Common Pleas of Montour County, Pennsylvania] on Preliminary
3
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101-68701.
4
65 Pa. C.S. §§ 701-716.
3
Objections as Previously Issued” (Conditional Notice).5 Id. at 49-55. It appears that
the Conditional Notice was not transmitted to this Court as a separate notice of
appeal. In this Conditional Notice, Appellant stated that he had elected to submit it
in order to preserve his right to appeal Common Pleas’ May 3, 2021 order, and that
it would “remain valid pending” Common Pleas’ disposition of his motion for
reconsideration, but that it would “become unnecessary” if Common Pleas granted
that motion. Id. at 52-53. More specifically, Appellant stipulated that his “appeal
will proceed upon any ruling [by Common Pleas] short of its dismissal of all of
[Appellees’] Preliminary Objections with prejudice in their entirety[.]” Id. at 53.
On August 20, 2021, Appellees filed a motion to dismiss, in which they noted
that Common Pleas had sustained their preliminary objections, and asked Common
Pleas to formally dismiss the Amended Complaint. Id. at 191-93. Appellant then
filed what he called an “Objection to [Appellees’] ‘Motion to Dismiss’ and Motions
for the Court to Act,” through which he requested that Common Pleas deny
Appellees’ motion to dismiss and grant his motion for reconsideration. Id. at 131-
41. Common Pleas then held a hearing on November 18, 2021, and then issued an
order that was docketed the following day, through which it denied Appellant’s
motion for reconsideration and granted Appellees’ motion to dismiss. Id. at 14.
On December 3, 2021, Appellant filed what he called “Motions for Judicial
Oversight to Correct Errors and for the Assignment of a Different Judge and Motions
for the Court to Act[,]” which amounted to a combination of a second motion for
reconsideration and a request that another judge be assigned to handle the case. Id.
5
This Court did not add the preceding brackets, or the words contained therein; rather, we
have merely reproduced, in full, the unusual name chosen by Appellant for this filing.
4
at 145-56.6 Common Pleas then docketed another order on December 15, 2021, in
which it did not rule upon Appellant’s December 3, 2021 submission, but instead
reiterated that it had denied Appellant’s previous motion for reconsideration and
granted Appellees’ motion to dismiss, and formally stated that the Amended
Complaint was dismissed with prejudice. Id. at 18. This appeal to our Court followed
shortly thereafter.
II. Discussion
Preliminarily, we must determine whether Appellant filed his appeal in a
timely manner. We conclude that he did. By law, a party is required to appeal a final
order within 30 days of its issuance and waives its appellate rights if it fails to do so.
See Pa. R.A.P. 903(a); 42 Pa. C.S. § 5571(b); Koken v. Colonial Assur. Co., 885
A.2d 1078, 1101 (Pa. Cmwlth. 2005). A final order is, in relevant part, one that
“disposes of all claims and of all parties[.]” Pa. R.A.P. 341(b)(1).
The timeliness of an appeal is jurisdictional, and the issue
of timeliness may be raised by any party, even by the Court
on its own motion, at any stage of the proceedings.
Reading Anthracite Co. v. Rich, . . . 577 A.2d 881 ([Pa.]
1990). An untimely appeal must be quashed absent a
showing of fraud or a breakdown in the court’s operation.
McKeeta v. Duquesne Sch. Dist., 708 A.2d 1311 (Pa.
Cmwlth. 1998).
City of Phila. v. Frempong, 865 A.2d 314, 317 (Pa. Cmwlth. 2005).
In this instance, Common Pleas sustained Appellees’ preliminary objections
to the Amended Complaint, in full and “with prejudice,” through its May 3, 2021
order. R.R. at 7-12. That order was final in nature, as it “dispose[d] of all claims and
6
On December 6, 2021, Common Pleas’ president judge issued an order, in which he stated
that this motion “shall be heard by the [j]udge who presided in this matter per appellate procedure.”
R.R. at 16. In other words, Appellant’s request that his case be reassigned to another judge was
denied.
5
of all parties[.]” Pa. R.A.P. 341(b)(1). Therefore, Appellant had until June 2, 2021,
to appeal that order. Pa. R.A.P. 903(a); 42 Pa. C.S. § 5571(b). As Appellant filed his
Conditional Notice on June 2, 2021, i.e., the final day of the appeal window, we
conclude that he consequently preserved his ability to appeal Common Pleas’ May
3, 2021 order.7
In addition, Common Pleas lacked jurisdiction to issue its November 19, 2021
and December 15, 2021 orders. Once a court issues a final order, it only retains the
power to modify or reconsider that order for the ensuing 30 days, i.e., the temporal
width of the appeal window. See Pa. R.A.P. 1701(b)(3)(i)-(ii); 42 Pa. C.S. § 5505;
Lichtman v. Glazer, 111 A.3d 1225, 1229-30 (Pa. Cmwlth. 2015). In the event a
court fails to expressly avail itself of this authority within the prescribed time period,
it loses its power to subsequently modify or reconsider the order in question.
Lichtman, 111 A.3d at 1229-30; Barron v. City of Phila., 754 A.2d 738, 739 (Pa.
Cmwlth. 2000). In this instance, both the November 19, 2021 and December 15,
2021 orders, insofar as they disposed of Appellant’s two motions for
reconsideration, were issued well beyond the relevant 30-day window, which closed
on June 2, 2021. Common Pleas consequently should have dismissed Appellant’s
7
Appellees argue that the Conditional Notice amounts to an improper protective appeal,
analogizing this situation to the one in Lebanon Valley Farmers Bank v. Commonwealth of
Pennsylvania, in which our Supreme Court dispelled the belief that a victorious party must file a
protective cross-appeal in order to preserve the ability to make appellate arguments in defense of
that victory. 83 A.3d 107, 112-13 (Pa. 2013). Lebanon Valley is clearly inapposite, however, as
Appellant did not prevail before Common Pleas and had to file a notice of appeal no later than
June 2, 2021, to preserve his ability to challenge Common Pleas’ May 3, 2021 order. Thus, the
Conditional Notice was not a protective appeal of the kind at which the Lebanon Valley Court cast
a jaundiced eye, but was instead proof that Appellant had elected to move on two tracks by both
appealing the May 3, 2021 order and seeking Common Pleas’ reconsideration of that order. See
R.R. at 49-55. As such, there was, and is, nothing procedurally improper about the Conditional
Notice.
6
motions for reconsideration for lack of jurisdiction, or not ruled upon them at all,
instead of denying them on the merits.8
Nevertheless, we conclude that Appellant’s challenge to Common Pleas’ May
3, 2021 order is without merit.9 Here, the only argument Appellant raises in his main
brief is that Common Pleas erred by mistakenly ruling upon Appellees’ preliminary
objections to his original Complaint, despite the fact that they had been rendered
moot when he filed his Amended Complaint. Appellant’s Br. at 5-12.10 This
argument, however, is entirely without merit. To reiterate, Appellees asserted in their
8
We also note that an order denying a motion for reconsideration is not appealable. See
Thorn v. Newman, 538 A.2d 105, 108 (Pa. Cmwlth. 1988). Furthermore, the November 19, 2021
and December 15, 2021 orders were superfluous to the extent that Common Pleas used them to
grant Appellees’ motion to dismiss and to dismiss the Amended Complaint with prejudice. This is
because Common Pleas, in effect, had already granted that relief through the May 3, 2021 order,
which sustained Appellees’ preliminary objections to the Amended Complaint.
9
Our review of a trial court’s order sustaining preliminary objections
and dismissing a complaint is limited to determining whether the
trial court abused its discretion or committed an error of law. Petty
v. [Hosp. Serv. Ass’n of Ne. Pa.], 967 A.2d 439 (Pa. Cmwlth. 2009).
In reviewing preliminary objections, all well[-]pleaded relevant and
material facts are to be considered as true, and preliminary
objections shall only be sustained when they are free and clear from
doubt. Id. Such review raises a question of law as to which our
standard of review is de novo and our scope of review is plenary. Id.
Szoko v. Twp. of Wilkins, 974 A.2d 1216, 1219 (Pa. Cmwlth. 2009).
10
Appellees did not respond to Appellant’s assertion on this point; instead, they
inexplicably addressed several issues that Appellant had neglected to raise in his own brief,
regarding the substantive merits of Common Pleas’ orders. See Appellees’ Br. at 14-18. Appellant
then filed a reply brief, in which he, among other things, analyzed those very same issues. See
Appellant’s Reply Br. at 17-24. As Appellant did not raise those issues himself in his original brief,
we deem them waived and will not review their merits. See Filoon v. Pa. Pub. Util. Comm’n, 648
A.2d 1339, 1342 n.2 (Pa. Cmwlth. 1994) (internal citations omitted) (“[I]n accordance with the
Rules of Appellate Procedure, a reply brief may be filed in order to reply to matters raised [in an]
appellee’s brief [that were] not previously raised in [an] appellant’s brief. [However, a] reply brief
may not be used [by an appellant] as an opportunity to raise additional issues on appeal.”).
7
preliminary objections to the Amended Complaint that Appellant had failed to state
a legally viable Sunshine Act-based claim, as well as that he had improperly joined
the Township as a defendant. R.R. at 178-80. Common Pleas then ruled upon both
of those arguments via its May 3, 2021 order, and expressly stated therein that it was
disposing of Appellees’ December 30, 2020 preliminary objections, i.e., the ones
which pertained to the Amended Complaint. Id. at 7-12. Accordingly, Appellant’s
argument fails to provide a valid basis for disturbing Common Pleas’ May 3, 2021
order.
III. Conclusion
In light of the foregoing analysis, we affirm Common Pleas’ May 3, 2021
order and vacate Common Pleas’ November 19, 2021 and December 15, 2021
orders. In addition, we remand this matter to Common Pleas, with instructions that
it dismiss Appellees’ motion to dismiss as moot.11
____________________________
ELLEN CEISLER, Judge
There is no need to remand this matter for disposition of Appellant’s two motions for
11
reconsideration, as a trial court’s failure to rule upon a motion for reconsideration within the 30-
day appeal window “has the effect of a denial.” Lichtman, 111 A.3d at 1230.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Chris Pfaff, :
Appellant :
:
v. : No. 30 C.D. 2022
:
Terry Heimbach, Thomas Little, :
and Cooper Township :
ORDER
AND NOW, this 17th day of August, 2023, it is hereby ORDERED:
1. The Court of Common Pleas of the 26th Judicial District – Montour
County Branch’s (Common Pleas) May 3, 2021 order is AFFIRMED;
2. Common Pleas’ November 19, 2021 and December 15, 2021 orders are
VACATED;
3. This matter is REMANDED to Common Pleas, with instructions that
Common Pleas issue an order dismissing Appellees Terry Heimbach,
Thomas Little, and Cooper Township’s motion to dismiss as moot.
Jurisdiction relinquished.
____________________________
ELLEN CEISLER, Judge