IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joan Lescinsky and William Lescinsky :

:

v. : No. 1746 C.D. 2014

: Submitted: July 24, 2015

Township of Covington Zoning :

Hearing Board :

:

Appeal of: Lorraine Sulla :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

SENIOR JUDGE COLINS FILED: August 21, 2015

Before this Court is the appeal of Lorraine Sulla (Sulla) from the July 

9, 2014 order of the Court of Common Pleas of Lackawanna County (Trial Court)

in the above-captioned zoning enforcement matter. Because Sulla did not file a 

Petition to Intervene before the Trial Court, we quash the appeal.

The rules governing intervention in land use appeals have been strictly 

applied by this Court, including instances where the party seeking to intervene 

participated as a party at the township level, and instances where the party seeking 

to intervene is directly involved in the action. See, e.g., Nahas v. Zoning Hearing 

Board of Schuylkill County, 823 A.2d 237 (Pa. Cmwlth. 2003).
2

Under Section 1004-A of the Municipalities Planning Code (MPC)1, 

a municipality and any owner or tenant of the property directly involved in the 

action appealed from may intervene as of course by filing a notice of intervention 

within 30 days following the filing of the land use appeal; all other interventions 

are governed by the Pennsylvania Rules of Civil Procedure. Section 1004-A of the 

MPC, 53 P.S. § 11004-A.2 

Pennsylvania Rule of Civil Procedure 2328 requires that an 

application for leave to intervene shall be made by a petition in the form of and 

verified in the manner of a plaintiff’s initial pleading in a civil action. 3 Pa. R.C.P. 

No. 2328. Pennsylvania Rule of Civil Procedure 2329 requires that upon filing of 

 

1 Act of July 31, 1968, P.L. 805, as amended, added by Section 101 of the Act of December 21, 

1988, P.L. 1329, 53 P.S. § 11004-A.

2

Section 11004-A of the MPC provides: “Within the 30 days following the filing of a land use 

appeal, if the appeal is from a board or agency of a municipality, the municipality and any owner 

or tenant of property directly involved in the action appealed from may intervene as of course by 

filing a notice of intervention, accompanied by proof of service of the same, upon each appellant 

or each appellant's counsel of record. All other intervention shall be governed by the 

Pennsylvania Rules of Civil Procedure.” 53 P.S. § 11004-A.

3

Pennsylvania Rule of Civil Procedure 2328 provides: 

(a) Application for leave to intervene shall be made by a petition in the form of 

and verified in the manner of a plaintiff's initial pleading in a civil action, setting 

forth the ground on which intervention is sought and a statement of the relief or 

the defense which the petitioner desires to demand or assert. The petitioner shall 

attach to the petition a copy of any pleading which the petitioner will file in the 

action if permitted to intervene or shall state in the petition that the petitioner 

adopts by reference in whole or in part certain named pleadings or parts of 

pleadings already filed in the action.

(b) A copy of the petition shall be served upon each party to the action.

Pa. R.C.P. No. 2328.
3

the petition and after a hearing the court shall enter an order allowing intervention 

unless the application may be refused, including, inter alia, when “the petitioner 

has unduly delayed in making application for intervention or intervention will 

unduly delay, embarrass or prejudice the trial or the adjudication of the rights of 

the parties.” Pa. R.C.P. No. 2329; see also Pa. R.C.P. No. 2327 (addressing who 

may intervene). 

This Court addressed the difference between a notice of intervention 

and a petition to intervene, as well as the attendant consequences, in McLoughlin v. 

Zoning Hearing Board, 953 A.2d 855 (Pa. Cmwlth. 2008), stating:

[B]y providing notice, a party accomplishes nothing more than the 

provision of information; the filing of a notice requires no responsive 

pleading or order on the part of another party or a court. On the other 

hand, a petition constitutes a pleading, which by contrast, makes a 

court and other parties aware that the moving party is seeking some 

type of relief, to which an opposing party may respond, and which a

court must ultimately resolve. The Protestants’ notice of intervention 

herein does not suggest that the trial court needed to act, as no relief 

was in fact requested, nor did it suggest that the Applicants would 

have to respond thereto. Further, the notice fails to satisfy the 

requirements of [Pennsylvania Rule of Appellate Procedure] 2328 by 

setting forth the grounds for intervention.

Id. at 858. As a result of the failure to intervene in accordance with the 

Pennsylvania Rules of Civil Procedure, this Court held that the protestants in 

McLoughlin lacked standing to participate in the zoning appeal, regardless of the 

fact that the protestants were adjacent property owners. Id. at 855, 859

Sulla is an adjoining owner to the property that was at issue in the 

zoning enforcement matter before the Trial Court. Sulla filed a Notice to Intervene 

in the Trial Court on December 2, 2013. Sulla did not file a Petition to Intervene 
4

during the pendency of the action below. Therefore, Sulla was not a party to the 

action below and is without standing to bring an appeal of the July 9, 2014 order of 

the Trial Court.

4

 

For the benefit of land use practitioners in the Commonwealth and in 

the interest of absolutely clarity, we wish to stress that whether stemming from 

unfamiliarity with the Pennsylvania Rules of Civil Procedure, vestiges of 

countervailing local rules, error or misrepresentations made by counsel, or a matter 

traversing from courtroom to courtroom prior to reaching the merits, this issue has 

repeatedly reached this Court and the holding has been the same: unless you are a 

municipality or an owner or tenant of the property directly involved in the action 

appealed from, you must file a petition to intervene in the form of and verified in 

the manner of a plaintiff’s initial pleading in a civil action to participate as an 

intervenor in a land use appeal.

Accordingly, we quash the appeal.

_______________ ______________________

JAMES GARDNER COLINS, Senior Judge

 

4 Although the law is clear, the result is highly technical and deeply troubling. Throughout the 

proceedings before the Trial Court, Sulla was permitted to participate as though she had properly 

intervened and was a party to this matter. She was not. It was only when Sulla found fault with 

a stipulated settlement between the parties and sought to appeal to this Court that her status as a 

party to this matter was questioned and found insufficient. In her brief, Sulla addresses the 

merits of her appeal, rather than the issue squarely addressed by both the Trial Court and the 

Appellees: her lack of standing. As Sulla has offered no argument as to why this matter presents 

an exception and the rules governing intervention in land use appeals should not be strictly 

applied, the result is unfortunate but it is required by law.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joan Lescinsky and William Lescinsky :

:

v. : No. 1746 C.D. 2014

: 

Township of Covington Zoning :

Hearing Board :

:

Appeal of: Lorraine Sulla :

O R D E R

AND NOW, this 21st day of August, 2015, the appeal in the abovecaptioned matter is QUASHED.

_______________ ______________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joan Lescinsky and William Lescinsky :

: No. 1746 C.D. 2014

v. :

: Submitted: July 24, 2015

Township of Covington Zoning :

Hearing Board :

:

Appeal of: Lorraine Sulla :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

CONCURRING OPINION 

BY JUDGE McCULLOUGH FILED: August 21, 2015

I concur in the result reached by the Majority, and I write separately to 

clarify the statement that an adjoining landowner must always file a petition to 

intervene in order to appeal a land-use decision by a zoning hearing board because 

I believe it is overly broad. (See Maj. slip op. at 4 & n.4.)

In this case, the Township of Covington Zoning Hearing Board 

(Board) issued a September 25, 2013 order upholding six different enforcement 

notices against Joan and William Lescinsky (the Lescinskys), and an October 4, 

2013 order denying the Lescinskys’ request for a variance. (Reproduced Record 

(R.R.) at 85a-86a, 93a, 103a.) Lorraine Sulla (Sulla), an adjoining property owner

who participated in the proceedings before the Board, seeks to appeal these orders

to the trial court, but she failed to file a petition to intervene with the trial court. 
PAM - 2

Under Pennsylvania law, when a Board issues an order upholding an 

enforcement notice, or an order denying a property owner’s request for land-use 

relief (such as a variance), an objecting, adjoining landowner must petition to 

intervene with the trial court, regardless of the objector’s status or participation in 

the proceedings before the Board. Brendel v. Zoning Enforcement Officer of 

Borough of Ridgway, 780 A.2d 750, 751 (Pa. Cmwlth. 2001); Gilchrist v. Zoning 

Hearing Board of Old Forge Borough, 475 A.2d 1366, 1368 (Pa. Cmwlth. 

1984). In these scenarios, the property owner subject to enforcement sanctions or 

denied requested land-use relief serves as the appellant; the Board acts as the 

appellee to defend its own decisions, see Zeigler v. Klay, 640 A. 2d 511, 513-14

(Pa. Cmwlth. 1994); and the objecting, adjoining landowner is not “aggrieved” for 

standing purposes because the Board’s orders are not “adverse” to the objector’s 

interests. Accordingly, our law requires the objecting, adjoining landowner to file 

a petition to intervene and be granted intervenor status in order to participate at the 

trial court level.

However, when a Board issues an order granting a property owner’s 

request for land-use relief, an objecting, adjoining landowner – assuming that the 

objector is “directly affected” by the grant – need only obtain party status before 

the Board and sufficiently participate in the proceedings in order to have standing 

to appeal to the trial court. Thompson v. Zoning Hearing Board of Horsham 

Township, 963 A.2d 622, 624-25 (Pa. Cmwlth. 2009); Orie v. Zoning Hearing 

Board of the Borough of Beaver, 767 A.2d 623, 624-25 (Pa. Cmwlth. 2001). In 

this scenario, there is, in essence, no person or entity to act as the appellant because 

the Board and the property owner who was granted the land-use relief will not be 

filing an appeal. Accordingly, our law permits an objecting, adjoining landowner 
PAM - 3

to file an appeal from the Board’s decision and be afforded party status before the 

trial court without having to file a petition to intervene.

As noted, Sulla appeals from the Board’s orders upholding the

enforcement notices against the Lescinskys and denying the Lescinskys’ request 

for a variance. Because Sulla failed to file a petition to intervene with the trial 

court, she lacked standing to advance arguments or otherwise participate before the 

trial court. Nonetheless, it is not always necessary for an objecting, adjoining 

landowner to file a petition to intervene with the trial court, especially in cases 

where the Board grants a property owner’s request for land-use relief and the 

objector participates in the proceedings as a party-opponent.

With these observations being stated, I respectfully concur in the 

result reached by the Majority.

________________________________

PATRICIA A. McCULLOUGH, Judge