NEWMAN, WILLIAl\1S, MISHKIN, CORVELEYN, WOLFE & FARERI

A PROFESSIONAL CORPORATION

BY: Marc R. Wolfe, Esquire

Robert J. Kidwell, Esquire
712 MONROE STREET
P.O. BOX 511
STROUDSBURG, PA 18360-0511
(570) 421-9090
(570) 424-9739 (FAX)

ATTORNEY FOR: Intervenors, Ricky L. Gower and Gower Estates, LLC

IN THE COURT OF COMMON PLEAS OF MONROE COUNTY

43 RD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
KLINT R. and DONNA M. DEIHL,
ARLENE DUNKELBERGER and
PAUL and LISA LOMONACO,
Appellants,
v.

No. 9478 CV 2015

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ELDRED TOWNSHIP and ELDRED

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Appellees.
RICKY L. GOWER and GOWER
ESTATES, LLC,
Intervenors.
VERNON A. BARLIEB and
MARIETTA S. BARLIEB,
Intervenors.
Motion for Summary Judgment
On Behalf of Intervenors, Ricky L. Gower and Gower Estates, LLC

AND NOW COME Intervenors, Ricky L. Gower and Gower Estates, LLC
(collectively "Gower"), .by their undersigned attorneys, Newman, Williams, Mishkin,
Corveleyn, Wolfe & Fareri, P.C., and respectfully move this Court, pursuant to

Pa.R.C.P. 1035.2, for the entry of summary judgment in their favor and against the
Appellants on the basis of the following:
Background

1. In 2014, Eldred Township proposed a revision and recodification of its Zoning

Ordinance. This was done as part of an intergovernmental cooperative implementation
agreement entered into by Chestnuthill, Jackson, Eldred, and Ross Townships (CJER)
dated October 6, 2008. Agreed.
2. The Eldred Township Zoning Ordinance was adopted on May 1, 2014 (hereafter the
"Ordinance"). Agreed.
3. On December 17,2015, Appellants filed a Notice of Appeal pursuant to 42 Pa.C.S.
5571.1 raising questions relating to an alleged defect in the statutory procedure for the
enactment ofthe Ordinance (the "Notice of Appeal"). Agreed.

30 day appeal period

4. Section 5571.1(b)(1) provides that any appeal raising questions relating to an alleged
defect in the statutory procedure for the enactment or adoption of any ordinance shall be
brought within 30 days of the intended effective date of the ordinance. Agreed.
5. Section 5571.l(b)(2) provides that, except as provided in subsection (c), it is the
express intent of the General Assembly that this 30 day limitation shall apply regardless
of the ultimate validity of the challenged ordinance. Appellants are using subsection
(c), so the 30 day limitation does not apply.
6. Appellants filed this appeal 595 days after the effective date of the Ordinance in
violation of the 30 day limitation period. Dumbass Appellants are filing under (c)

The Notice of Appeal is not exempt from application of

the 30 day limitation period.

7. Section 5571.l(c) provides that "[a]n appeal shall be exempt from the time limitation in
subsection (b) if the party bringing the appeal establishes that, because of the particular
nature of the alleged defect in statutory procedure, the application of the time limitation
under subsection (b) would result in an impermissible deprivation of constitutional
rights." No, seriously?
8. Appellants bear the burden of demonstrating that the Notice of Appeal is exempt from
the application of the 30 day limitation because the particular nature of the alleged defect
in statutory procedure would result in an impermissible deprivation of constitutional
rights. Yup, and the defects are across the board.
9. The Appellants allege that because of a "lack of lawful notice" of a revision made to
the definition of "water extraction and bottling" from an earlier proposed version of the
Ordinance applying the 30 day limitation would result in an impermissible deprivation of
their constitutional rights. (Notice of Appeal, 38). Yup.
10. The Notice of Appeal omits essential facts surrounding the enactment of the
Ordinance. Those facts demonstrate proper notice of the revision to the definition of
"water extraction/bottling" was provided to the public as follows:
a)

During Eldred Township's public process for consideration of the Ordinance,

Intervenor, Ricky L. Gower, and his legal counsel, James Wimmer, Esquire, attended the
March 20, 2014 meeting of the Eldred Township Planning Commission. A true and
correct copy of the March 20,2014 Eldred Township Planning Commission meeting
minutes under cover of an Affidavit of Record
Custodian is attached hereto as Exhibit "A" and incorporated by this reference.

b)

According to the minutes of that meeting, Mr. Wimmer questioned a change

being made in the proposed Ordinance from the existing Zoning Ordinance definition and
classification of "water extraction." (Exhibit "A"). What was his question?
c)

The Eldred Township Planning Commission Solicitor noted that the language in

the draft Ordinance would "change the definition of water extraction and bottling from
'light manufacturing' to 'industrial" use, which would then no longer be permitted on Mr.
Gower's property. The minutes reflect that "this could be detrimental to [Gower's]
property value and does not reflect the true nature of the activity." (Exhibit "A"). That
is what the minutes as modified by the landowners attorney, and written by the
secretary who is the landowners girlfriends mother state, but not what Mr. Lyons
says happened.
d)

In response, "Mr. Wimmer asked whether the definition of water extraction could

be considered light manufacturing, not industrial, and could the zoning changes be
revised to reflect this?" The minutes of the March 20th meeting state that "[t]he
planners concurred with this request." (Emphasis supplied). (Exhibit "A"). Mr.
Wimmer supplied this language to Secretary Gannon, since she solicited him to
revise her official minutes. Members present say they said nothing and concurred
with nothing. Only the Solicitor spoke. No planning commission member made a
motion and no vote was taken to recommend anything at all.
e)

The March 20, 2014 Eldred Township Planning Commission minutes reflect

Intervenor, Vernon Barlieb, was present at this meeting. The minutes do not provide that
Intervenor Barlieb voiced opposition to the proposed change to the definition of "water
extraction/bottling." (Exhibit "A"). Actually, the transcript shows that Mr. Barlieb

stated he believed residents would be in for a big surprise when they found out what
changes had been made, and Chairman Gould blew him off and said residents have
to take responsibility once CJER is done passing the proposed ordinance. In other
words, he told Mr. Barlieb to sit down and shut the fuck up. Mr. Barlieb and others
were not given enough information to ask the right questions, since the legal
advertisement of the water extraction amendment was altered without approval by
an unknown party, and there was no discussion at all at the next meeting in which
the amendment was passed. In time, Mr. Barliebs concern was proven to be
justified, and all Mr. Gould and his boys club does today is say we cant say
anything on advice of counsel. You dont want to say anything because your
Johnsons are hanging out in the breeze.
f)

On March 27, 2014, CJER held a publicly noticed Planning Committee hearing

attended by the Boards of Supervisors of Chestnuthill, Jackson, Eldred and Ross

Townships for consideration of amendments to the Subdivision and Land Development
Ordinance (SALDO) and Zoning Ordinance of each municipality. The Notice of Public
Hearing and Special Meeting published in The Pocono Record on March 8, 2014 and
March 15, 2014 is attached hereto as Exhibit "B" and incorporated herein by reference.
Agreed.
g)

The Notice of Public Hearing and Special Meeting attached as Exhibit "B"

satisfied the requirements of the Municipalities Planning Code (MPC), 53 Pa. Stat. Ann.
10101, et seq. in that it (1) included the time and place of the meeting; (2) included a
reference to a place within the municipality where copies of the proposed amendments
could be examined; (3) was published not more than 60 days nor less than 7 days prior to

passage; and (4) included a brief summary setting forth all the provisions in reasonable
detail. See e.g. 53 Pa. Stat. Ann. 10610. Agreed.
h)

Gretchen Gannon Pettit, Mary Anne Clause, and Sharon F. Solt attended the

March 27,2014 CJER Planning Committee hearing on behalf of Eldred Township along
with Eldred Township's Solicitor Michael B. Kaspszyk, Esquire. A true and correct copy
of the transcript of proceedings from the March 27, 2014 CJER Planning Committee
hearing are attached hereto as
1

The Appellants acknowledge the March 27, 2014 CJER meeting was held "pursuant to
public notice." (See Notice of Appeal, 10.)
Exhibit "C" and incorporated herein by this reference. The transcript is
certified by stenographer Donna Kenderdine. Agreed.
i)

At the March 27,2014 public CJER Planning Committee hearing, Carson

Helfrich, a municipal planner who provided drafting and consulting services to the
Planning Committee, was asked to comment on the definition of "water
extraction/bottling" in the Eldred Township Zoning Ordinance. Agreed
j)

Mr. Helfrich stated that the draft Ordinance regulated this type of use as

"industry" and there was a request that it be considered "light manufacturing." (Exhibit
"C," p. 29). The draft would define it as industry in all CJER townships.
k) Mr. Helfrich stated Eldred Township could make this change and it "would not really
affect the other regional uses." (Exhibit "C," p. 30). The regional changes are
irrelevant. Mr. Helfrich didnt warn that the change would violate CJERs primary
goal of consistent definitions across all the townships. He also did not warn, as a
professional planner, that this would place an industrial use in a commercial zoning

district, and that this represented an increase in intensity of use in the Commercial
zoning district. He didnt do his job as a planning consultant. He also did not
appear before the Eldred Township Planning Commission to discuss this change,
but minutes reflect that he appeared at planning commission meetings in other
CJER townships in April 2014. Thanks for nothing, Mr. Helfrich.
I)

Christine Meinhart-Fritz of the Monroe County Planning Commission then added

Gower's property is located in a growth area for commercial development and "so it
would definitely be consistent with the comprehensive plan." (Exhibit "C," p. 30). Yes,
but Ms. Meinhardt Fritz didnt comment that this is an industrial use, not a
commercial use. The area is not targeted for industrial use. WTF who died and
let this woman be queen? She didnt do her job. Locating an industry with
constant heavy truck traffic in the village is contrary to the comprehensive plan in
many ways. Raping the water aquifer is also not consistent with it.
m) Later at the March 27, 2014 public hearing, CJER Chairman Carl Gould stated as
follows: [T]he changes that were identified like the water extraction thing I think [Carson
Helfrich] indicated was in the process of being changed, those things can be updated in
2

the new advertisement that Attorney Fareri will put out. So, that should all be correct at
the next hearing. Things that you guys brought up here should be corrected at the next
hearing. (Exhibit "C", p. 39). Only problem with this rosy view is that the record
does not reflect that either the Monroe County Planning Commission or Mr. Fareri
reviewed the water extraction thing, and the advertisement as printed disguised
the water extraction language that was approved to be printed. Who ordered that
change? Newman Williams had the ad printed, and is responsible for this critical

failure. The obscured language means the ad was not sufficient to inform the
public.
2

The Solicitor for the CJER Regional Planning Committee.

n) After this statement by the CJER Chairman, Eldred Township Supervisor Mary Anne
Clausen engaged in the following dialogue with Mr. Helfrich to determine the proper
procedure for effectuating the change to the definition of "water extraction/bottling":
MS. CLAUSEN: Right. So, the changes that will be proposed are those that we have
discussed tonight.
MR. HELFRICH: Correct.
MS. CLAUSEN: Now, just one question. The water extraction issue, I believe our
planning commission voted to recommend that. The Eldred planning commission
recommended nothing.
We as supervisors, haven't considered that yet, but we would propose to do that in
connection with voting on the ordinance? That is true you havent and you didnt
consider it you never voted as we will see
MR. HELFRICH: Yes. In other words that would be included in what's resubmitted to
each planning commission and that has to be --again, the hearing can't be any sooner than
30 days from when it's submitted to each planning commission, including the county
planning commission, and I think what --I think what we're proposing to do is the
changes would be submitted as a supplement to what was previously submitted. Okay?
Whoa you left out something! Mr. Helfrich also said If that you authorize that
we can move forward with that. [the water extraction amendment] but no vote

was taken to authorize it. The amendment was never authorized. This is verbal
masturbation. Did a client pay for this nonsense or is this pro-boner?
MS. CLAUSEN: Right.
o) After this dialogue took place, each Township's Board of Supervisors voted on
whether "to continue the hearing and the meeting to May 1st, 2014 at 7:00 PM." The
"aye" votes of the Eldred Township Supervisors appear on page 44 of the transcript. p)
Since changes were proposed to all of the Townships' Ordinances at the March 27, 2014
public hearing, the MPC required the CJER Planning Committee to, at least ten days
prior to enactment, re-advertise, in one newspaper of general circulation in the
municipality, a brief summary setting forth all the provisions in reasonable detail together
with a summary of the amendments. 53 Pa. Stat. Ann. 10610. Big fucking deal they
voted to continue the meeting, but not to authorize drafting the amendment. FAIL.
q)

The CJER Planning Committee complied with this MPC provision by advertising

its May 1, 2014 public hearing in The Pocono Record on April 14, 2014 and April 21,
2014. The Notice of Public Hearing and Special Meeting published is attached hereto as
Exhibit "D" and incorporated herein by reference. NOPE. CJER did not comply with
this provision, because someone altered the approved language before it was
printed.
r)

The Public Notice of the May 1, 2014 hearing provided the public with a

summary of the all the revisions made to the ordinances of each Township including an
express reference to the revision to the definition of "water extraction/bottling" in
the Eldred Township Zoning Ordinance as follows:

This looks suspicious. Why not print a legible version? Because it doesnt tell the
story that you claim, thats why. Printing a reference is not printing the existing
and new language, so the reader can see what changed. The ad wrongly omitted the
existing language which was included in the version authorized to be printed.
BUSTED.
s)

Supervisor Sharon F. Solt forwarded a summary of the revisions to the Eldred

Township Planning Commission on March 31,2014 indicating the revisions needed to be

reviewed at the April 17, 2014 Planning Commission meeting. A true and correct copy of
Supervisor's Solt email dated March 31, 2014 is attached hereto as Exhibit "E" and
incorporated herein by reference. But Ms. Solt did not include a note to planners
indicating that the water extraction amendment had been added. An assistant in
the office states that Ms. Solt was questioned about this addition not being noted
prior to sending to the planners, and she said send it that way.
t) The Eldred Township Planning Commission held a public meeting on April 17, 2014.
A true and correct copy of the April 17, 2014 Eldred Township Planning Commission
meeting minutes under cover of an Affidavit of Record Custodian is attached hereto as
Exhibit "F" and incorporated by this reference. Agreed.
u)

The Eldred Township Planning Commission approved the minutes to the March

20, 2014 meeting where the revision to the definition of "water extraction/bottling" was

first discussed. (Exhibit "F"). Agreed, but those minutes do not reflect that any
recommendation was made it was not.
v)

A motion was then made to recommend approval of the proposed Ordinance as

revised at the March 27, 2014 CJER planning committee hearing. The motion was made,
seconded and carried. (Exhibit "F"). Agreed.
w)

This recommendation was communicated to the Eldred Township Board of

Supervisors by letter dated April 28, 2014. A true and correct copy of the April 28, 2014
letter under cover of an Affidavit of Record Custodian is attached hereto as Exhibit "G"
and incorporated herein by reference. Agreed.
x)

On April 25, 2014, the Monroe County Planning Commission indicated its staff

reviewed the proposed amendments to the 2014 Eldred Township Zoning Ordinance and
recommended the proposed Ordinance be adopted. A true and correct copy of the April
25, 2014 letter under cover of an Affidavit of Record Custodian is attached hereto as
Exhibit "H" and incorporated herein by reference. But, said April 25 letter states the
amendments reviewed were the same as those reviewed on March 26, 2014. The
water extraction amendment didnt even exist on March 26! FAIL.
y)

At the May 1, 2014 public CJER Planning Committee hearing, the Ordinance was

duly considered by the Eldred Township Board of Supervisors and was approved. A true
and correct copy of the transcript of proceedings from the May 1, 2014 CJER planning
committee hearing are attached hereto as Exhibit "I" and incorporated herein by this
reference. The transcript is certified by stenographer Donna Kenderdine. The approval is
found on pages 10-11. Agreed.

z)

No member of the public made a statement at the May 1, 2014 CJER Planning

Committee hearing. (Exhibit "I", p. 7). Agreed there was no warning to citizens of
anything substantive that changed in fact, citizens were grossly mislead by CJER
leadership and CJER Solicitor Fareri that the changes made were minor.
Obviously this is not true. And the advertisement was corrupted to mask the water
extraction change.
aa) At the May 1, 2014 CJER Planning Committee hearing Minutes of the respective
Planning Commissions of the municipalities were received and marked as Exhibits,
indicating that said Planning Commissions of said member municipalities reviewed the
proposed amendments and recommended their approval. (Exhibit "I", p. 6). Agreed.
11. To summarize, the proposed change to the definition of "water extraction/bottling"
was:
~ discussed at the March 20, 2014 public meeting of the Eldred Township Planning
Commission;
But it was never authorized to be drafted by the supervisors a required step.
~ discussed at the March 27, 2014 public CJER planning committee
hearing;
~ advertised in The Pocono Record on April 14, 2014 and April 21, 2014;
It was not advertised as authorized.
~reviewed and approved by the Eldred Township Planning Commission at its April 17,
2014 public meeting;
There is no evidence that the Eldred Planners saw it buried in their packet by
Sharon, and they were not notified that it had been added since the previous month.

~approved by the Monroe County Planning Commission by way of letter dated April 25,
2014; and
No! The April 25, 2014 letter makes no mention of amendments added after March
26, 2014.
~approved by the Eldred Township Board of Supervisors at the May 1, 2014 public
CJER hearing.
12. These facts demonstrate the Appellants suffered no deprivation of their constitutional
rights, and therefore the alleged defects in statutory procedure set forth by the Appellants
in the Notice of Appeal are not exempt from the 30 day limitation period pursuant to
Section 5571.1(b)(1). WRONG. For reasons stated above, steps were not followed
correctly. In addition, other steps were omitted that arent mentioned here, for
example the requirement that CJER townships each review the Eldred water
extraction amendment.
Appellants cannot satisfy the 5571.1(e)(2) elements

13. In the event the Court finds the Appellants exempt from the 30-day time limitation in
accordance with Section 5571.l(c), the Appellants must meet the burden of proving each
of the following:
(i) That there was a failure to strictly comply with statutory procedure; Thats easy.
(ii) That there was a failure to substantially comply with statutory procedure which
resulted in insufficient notification to the public of impending changes in or the existence
of the ordinance, so that the public would be prevented from commenting on those
changes and intervening, if necessary, or from having knowledge of the existence of the
ordinance; Thats even easier. Someone doctored the damned advertisement,
Skippy.

(iii) That there exist facts sufficient to rebut any presumption that may exist pursuant to
subsection (d)(2) that would, unless rebutted, result in a determination that the ordinance
is not void from inception. There are plenty of facts just not in evidence yet.
42 Pa.C.S. 5571. 1(e)(2).

14. Appellants have failed to produce evidence of facts demonstrating a failure to

strictly comply with statutory procedure. Thats because nothing has been put into
evidence this motion for summary judgment is premature.
15. Assuming arguendo Appellants could demonstrate a failure to strictly comply with
statutory procedure, Appellants cannot produce evidence of facts demonstrating a failure
to substantially comply with statutory procedure which resulted in insufficient
notification to the public of amendments to the Eldred Township Zoning Ordinance so
that the public was prevented from commenting on those changes and intervening, if
necessary, or from having knowledge of the existence of the ordinance. Bullshit how
the hell do you know what Appellants can and cant put into evidence?
16. To the contrary, as described more fully above, the proposed change to the definition
of "water extraction/bottling" was reviewed and approved by the Eldred Township and
Monroe County Planning Commissions. The revision was publicly discussed at the
March 20, 2014 and April 17, 2014 Eldred Township Planning Commission meetings,
and the March 27, 2014 and May 1, 2014 CJER Planning Committee hearings. The
revision was advertised in The Pocono Record on April 14, 2014 and April 21, 2014,
Yes, it was advertised, but the advertisement was not what was authorized to be
printed. How many times do you have to be told?
17. The public had the statutorily required notification of the revision to the definition of
"water extraction/bottling" in the Eldred Township Zoning Ordinance and was not

prevented from commenting on that revision. No, you are WRONG. The public did
not have the required notification. They had only what someone wanted them to
see, and not the full text that was to be printed.
18. The Appellants are incapable of demonstrating the public was provided insufficient
notification of the revision to the definition of "water extraction/bottling" in the
Ordinance. Now youre really talking nonsense. Just look at the add printed, and
compare to what was authorized to be printed.
19. The foregoing demonstrates, at a minimum, substantial compliance with the statutory
procedures set forth in the MPC related to amendments of ordinances. Only in the minds
of those at Newman Williams.
20. There is no genuine issue of any material fact as to the necessary elements of the
Notice of Appeal which could be established by additional discovery or expert report.
Pa.R.C.P. No. 1035.2(1). How would you know, there is no evidence in the record at
this point.
21.Alternatively, Appellants have failed to produce evidence of facts essential to the
Notice of Appeal which in a jury trial would require the issues to be submitted to a jury.
Pa.R.C.P. No. 1035.2(2). Appellants were not required to have any facts in evidence
at this stage.
WHEREFORE, Intervenors, Ricky L. Gower and Gower Estates, LLC, respectfully
request this Court grant their Motion for Summary Judgment and dismiss the Appellants'
Notice of Appeal filed in accordance with 42 Pa.C.S. 5571.1(b)(1). Nice try, Skippy. I
think not.

Marc R. Wolfe , Esquire Attorney for Intervenor, Ricky L. Gower and Gower Estates, LLC
712 Monroe Street, P.O. Box 511 Stroudsburg, PA 18360-0511
(570) 421-9090