J-A05035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OLD FORGE BOROUGH

v.

WALTER STOCKI, JR., INDIVIDUALLY 

AND NOW TRADING AS SCRAP 

ENTERPRISES, INC. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 662 MDA 2021

Appeal from the Order Entered April 22, 2021

In the Court of Common Pleas of Lackawanna County Civil Division at 

No(s): 2017-06216

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED MAY 26, 2022

Walter Stocki, Jr. (individually and now trading as Scrap Enterprises, 

Inc.) (collectively “Appellant”) appeals the order of the Court of Common Pleas 

of Lackawanna County entered on April 21, 2021 in which the trial court found 

Appellant in civil contempt for failing to abide by a July 30, 2018 order entered 

upon the agreement of Appellant and the Borough of Old Forge (“the 

Borough”) as well as the trial court’s subsequent bench order entered on May 

9, 2019.

1

 We transfer the case to the Commonwealth Court.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 We acknowledge that since the trial court entered the order appealed in this 

case on April 22, 2021, the trial court has made additional rulings, including 

but not limited to its October 28, 2021 order finding Appellant in contempt in 

a separate issue and a January 19, 2022 order directing Appellant to pay a 

$20,000 fine. All of these rulings were forwarded to this Court as 

supplemental records. Old Forge Borough has filed an appeal of the January 

19, 2022 order to the Commonwealth Court.
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Appellant is the owner of real property located at Rear 105 North Keyser 

Avenue in the Borough of Old Forge, Pennsylvania (“the property”). Appellant 

Stocki is the owner and operator of both Scrap Enterprises, Inc., and Trion 

Equipment Sales LLC, which do business on the property that is situated in a 

C-2 Zone, a highway commercial zoning district in which machinery sales and 

rentals are permitted. 

While the front and sides of the property are adjacent to commercial 

real estate and undeveloped land, the rear portion of the property borders a 

residential neighborhood. Community residents brought multiple complaints

to Borough officials about the activities being conducted on the property as 

well as the nuisances resulting from such activities including, but not limited 

to, the uncleanliness of the property; noise, dirt, and odor coming from the 

property; oil and chemical fires on the property; chemical spills on the 

property and public thoroughfares, and the fact that activities would extend 

beyond normal working hours into the nights and weekends. 

On June 2, 2017, Old Forge Borough Zoning Officer Steven Bieryla sent 

Appellant an enforcement notice indicating the property was in violation of 

Borough ordinances as the operation of a junkyard is prohibited in the C-2 

district. Notes of Testimony (N.T.), 7/30/18, at 16 (Exhibit 1). The 

enforcement letter notified Appellant that he had thirty days to file an appeal 

with the local zoning board, which Appellant did not do.

On August 11, 2017, the Borough filed a civil enforcement action against 

Appellant for the violation before a magisterial district judge. After a hearing 
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on November 16, 2017, at which Appellant did not appear but was represented 

by counsel, the magisterial judge entered judgment in favor of the Borough. 

On November 27, 2017, Appellant appealed to the Court of Common Pleas.

On February 22, 2018, the Borough filed a complaint in the trial court, 

seeking injunctive relief to restrain Appellant from operating a junkyard in 

violation of Borough ordinances, as well as fines for the appealed violations, 

and any other remedy that the trial court deemed just. 

On March 28, 2018, Appellant filed an answer on March 28, 2018, in 

which he raised numerous defenses including, inter alia, a claim that he had 

attempted to file an appeal of the original enforcement letter but was unable 

to do so. He claimed the zoning officer was not present in his office in the 

days immediately prior to the expiration of the appeal period. 

On May 1, 2018, the Borough filed a petition for a preliminary injunction

pursuant to Pa.R.C.P. 1531(b), alleging that Appellant had continued to 

operate a junkyard on the property in violation of Borough ordinances. 

After a hearing was held on July 30, 2018, on the Borough’s complaint 

and petition for injunctive relief, the parties jointly drafted a proposed 

stipulated order, which the trial court adopted and entered on July 31, 2018. 

The Order directed Appellant to, inter alia, “immediately cease any and all 

activity on the property ... in violation of the Old Forge Borough Zoning 

Ordinance including the operation of a junkyard business and activities related 

or ancillary thereto with the exception of activities to carry out compliance 

with this Order.” Order, 7/31/18, at 1. 
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More specifically, the order gave Appellant “six (6) months f[ro]m the 

date of this order to remove non[-]operational equipment, vehicles, and 

machinery from the property which is the subject matter of this appeal and 

bring the use and activities of the property in compliance with the Old Forge 

Borough Zoning Ordinance.” Id. The order set up a schedule of “Status 

Conferences” to monitor Appellant’s progress and indicated that “the 

completion of the hearings in this matter and judg[]ment on the fines and 

costs shall be held in abeyance provided that [Appellant] is complying with 

this order.” Id. at 1-2.

The trial court granted Appellant multiple continuances and extensions 

of time to clean up the property to comply with the July 30, 2018 stipulated 

order. Many months later, on May 2, 2019, the trial court judge, the 

Honorable Thomas Munley, conducted an in-person site visit and walk-through 

of the property to assess whether Appellant had complied with the stipulated 

order. 

Thereafter, during a May 9, 2019 hearing, Judge Munley indicated he 

was “shocked” by what he saw at the site visit, including the non-operational 

equipment and material he characterized as junk that remained on the 

property. Id. at 3-4. On the record, Judge Munley issued a bench order 

directing Appellant to cease regular business operations to focus his resources 

to comply with the court’s July 31, 2018 order. Judge Munley gave Appellant 

100 additional days to remove non-operational equipment from the property

and to post a $20,000 bond. N.T., 5/9/19, at 12. 
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On August 14, 2019, the Borough filed a petition for contempt of court 

claiming that Appellant continued to violate the trial court’s orders of July 31, 

2018 and May 9, 2019. On August 26, 2019, Appellant filed a motion for 

recusal, based on his allegations that during the May 2, 2019 site visit, Judge 

Munley had engaged in ex parte communications with community residents

outside Appellant’s presence. After a hearing was held on September 19, 

2019, Judge Munley denied Appellant’s motion for recusal.

Thereafter, the trial court held three hearings to receive evidence from 

both parties on December 18, 2019, March 2, 2020, and July 10, 2020. On 

April 22, 2021, the court entered an order and opinion finding Appellant 

committed material violations of its July 31, 2018 and May 9, 2019 orders. 

The trial court entered the following findings of fact:

1. [Appellant] has not ceased any and all activity on the property 

that is violative of the Borough Zoning Ordinance, including the 

operation of a junkyard business and activities thereto, in 

violation of paragraph 1 of the July 31, 2018 Order.

2. [Appellant] has not removed non-operational equipment, 

vehicles and machinery from the property, in violation of 

paragraph 3 of the July 31, 2018 Order.

3. [Appellant] has failed to do the following in violation of the 

Court’s May 9, 2019 bench Order: keep reasonably clean the 

property and public thoroughfares with ingress and egress to 

the property; contain the spill of fuel, oil, and other chemicals; 

cease cutting and torching on the property; cease to cause 

fires on the property; contained and significantly mitigated 

noise, odor and debris emanating from the property; operate 

within normal daily business hours and limited weekend 

business hours; attained all the relevant, necessary, and 

requisite permits; and post a $20,000.00 bond.
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4. [Appellant] has persisted in bringing on to the property nonoperational equipment, vehicles and machinery in violation of 

paragraph 1, 2, and 3 of the July 31, 2018 Order, and the May 

9, 2019 bench order.

5. [Appellant] has engaged in business activity of the type 

prohibited by paragraph 1 of the July 31, 2018 Order.

6. Violations are a frequent, daily occurrence and are not isolated 

events.

7. Violations are a nuisance to the community residents.

Order and Opinion (T.C.O.), 4/22/21, at 3. 

In light of these findings, the trial court found Appellant in contempt for 

violating its prior orders. The trial court permanently restrained Appellant 

from using the property for the “operation of a junkyard business and activities 

thereto in violation of Borough Zoning Ordinances including the sale and 

storage of non-operational equipment, vehicles, machinery, scrap and parts.” 

Id. at 5. 

More specifically, the trial court held that Appellant was required to 

remove all non-operational equipment, vehicles, and machinery from the 

property by June 15, 2021. The trial court’s order states that Appellant “shall 

forever cease the import onto the subject property of non-operational 

equipment, vehicles, and machinery, or equipment, vehicles and machinery 

that are not immediately and readily made wholly operational.” Id. at 6. The 

trial court also prohibited Appellant from importing equipment, vehicles and 

machinery of any kind onto the subject property for the purposes of 

dismantling and/or salvaging its parts.” Id.
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The trial court also directed Appellant to post the court-ordered $20,000 

bond, pay attorney’s fees and costs, attain all the relevant and necessary 

permits to operate a lawful business pursuant to the borough ordinances, 

immediately comply with borough ordinances, and to take all reasonable steps 

to substantially mitigate all noise, odors, and debris emanating from the 

property onto neighboring properties. Id.

On April 22, 2021, Appellant filed a motion for reconsideration in which 

he argued, inter alia, that the trial court’s contempt order was not supported 

by substantial evidence. On May 20, 2021, the trial court entered an order 

denying Appellant’s motion for reconsideration.

Appellant filed this timely appeal, in which he presents the following 

issues for our review:

1. Whether the [trial] court erred in failing to recuse itself after 

the court engaged in discussions with representatives of the 

Borough, neighbors and residents whose interests in the case 

[are] adverse to Appellant during a site visit of Appellant’s 

property on May 2, 2019, and following the site visit, continued 

to engage with Borough officials, neighbors, and residents on 

a tour of the adjoining residential neighborhood when neither 

Appellant nor [his] counsel were present and without any of 

the dialogue being made part of the record?

2. Whether the April 22, 2021 Contempt Order is contrary to the 

weight of the substantial evidence and is contrary to the law?

3. Whether the court committed an error of law by granting 

injunctive relief against Appellant when the proceedings at 

issue related to the Borough’s Petition for Contempt?

4. Whether the court erred in denying Appellant the opportunity 

to present evidence of selective enforcement?

Appellant’s Brief, at 5.
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As an initial matter, we note that the parties have asserted that this 

Court has jurisdiction over this appeal under 42 Pa.C.S.A. § 742. However,

although “the appeal is perfected, and we have discretion to retain 

jurisdiction,” Trumbull Corp. v. Boss Constr., Inc., 747 A.2d 395, 398–99 

(Pa. Super. 2000), we “may, sua sponte, raise the issue of whether an appeal 

should be transferred to the Commonwealth Court.” Smith v. Ivy Lee Real 

Estate, LLC, 152 A.3d 1062, 1065 (Pa. Super. 2016).

By statute, this Court has jurisdiction regarding appeals from final 

orders of the courts of common pleas, except when jurisdiction is vested in 

the Supreme Court or the Commonwealth Court. 42 Pa.C.S.A. § 742. The 

jurisdiction of the Commonwealth Court regarding appeals from final orders 

of the common pleas courts is limited by statute. 42 Pa.C.S.A. § 762. 

Relevant to this appeal, 42 Pa.C.S.A. § 762 provides as follows:

§ 762. Appeals from courts of common pleas

(a) General rule.--Except as provided in subsection (b), the 

Commonwealth Court shall have exclusive jurisdiction of appeals 

from final orders of the courts of common pleas in the following 

cases:

***

(4) Local government civil and criminal matters.--

(i) All actions or proceedings arising under any 

municipality, institution district, public school, 

planning or zoning code or under which a municipality 

or other political subdivision or municipality authority 

may be formed or incorporated or where is drawn in 

question the application, interpretation or 

enforcement of any:
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(A) statute regulating the affairs of political 

subdivisions, municipality and other local 

authorities[.] ... 

42 Pa.C.S.A. § 762(a)(4) (bold in original) (footnote added). 

“[I]n deciding whether this Court has appellate jurisdiction, we must 

consider all of the potential issues underlying the parties’ theories of the case. 

If any potential substantive issue (or participation of a particular party) 

invokes the Commonwealth Court’s jurisdiction, transfer is appropriate, and 

we must transfer prior to reaching the merits of the appeal.” Mohn v. Bucks 

County Republican Comm., 218 A.3d 927, 934 (Pa.Super. 2019) (en banc).

In the case sub judice, the Appellee is the borough of Old Forge. The 

crux of Appellant’s appeal involves the trial court’s finding him in contempt of 

its prior orders regarding zoning violations. Appellant asserts that the 

property is no longer in violation of the Borough’s zoning ordinance that 

prohibits the property from being used as a junkyard. This appeal clearly 

implicates the “application, interpretation or enforcement of [a] statute 

regulating the affairs of political subdivisions, municipalit[ies] and other local 

authorities[.]” 42 Pa.C.S.A. § 762(a)(4). Pursuant to our statutory scheme, 

the subject matter of this case falls within the exclusive jurisdiction of the 

Commonwealth Court. Mohn, supra. 

Consequently, we transfer this appeal to the Commonwealth Court for 

disposition. See 42 Pa.C.S.A. § 5103(a) (“A matter which is within the 

exclusive jurisdiction of a court...of this Commonwealth but which is 
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commenced in any other tribunal of this Commonwealth shall be transferred 

by the other tribunal to the proper court...of this Commonwealth[.]”). 

Case transferred to the Commonwealth Court. Superior Court 

jurisdiction relinquished.

 Judge Olson joins the Memorandum.

 Judge Stevens files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/26/2022