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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 - - 17 BEFORE: 18 - - 19 COUNSEL APPEARED AS FOLLOWS: 20 21 22 23 24 25 R. REX HERDER, JR., ESQUIRE for the Defendant/Respondent ALSO PRESENT: ROBERT B. SKLAROFF, M.D., pro se - - THE HONORABLE THOMAS M. DEL RICCI, JUDGE ROBERT B. SKLAROFF, M.D. vs. TOWNSHIP OF ABINGTON IN THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF MONTGOMERY, PENNSYLVANIA CIVIL DIVISION - - : : : : : NO. 2011-02540

- - Order of Court - - Courtroom H Wednesday, June 15, 2011 Commencing at 2:10 p.m. - - Norma Gerrity Official Court Reporter Montgomery County Courthouse Norristown, Pennsylvania

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Sklaroff vs. Abington THE COURT: I've had the

opportunity to speak with these two fine gentlemen, both of whom, by the way, I've known for a long time. And for those people who are in the audience who are not familiar with my background, believe it or not, a long time ago -- it gets longer every day -- this is the area of the law that I used to practice in. I was a municipal solicitor for over nine municipal entities. I represented

applicants, developers, as well as townships where I was not a solicitor. In fact, one of the most amazing

things that I found when I came to the bench was that I could think during the daytime, because I was so used to working at nights. Now, that being said, I think I have a grasp of the substantive law and the procedural law that is applicable to this particular scenario and, quite frankly, mistakes have been made on both sides of this matter that have created what I have described to these two gentlemen as a procedural morass. Now, we can spend the next several years litigating the procedural issues that relate to the mandamus, the petition to strike the

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Sklaroff vs. Abington mandamus, the requirements of service, the requirements of the township to accept applications, and at the end of the day, where are we? We are at a place where we still don't know whether the ordinance is valid or invalid, and we have created interim issues for appeal, and the world in Abington Township cannot go forward. That would be a mistake to do that, yet that's the primary job of a judge. The

judge cannot effect a practical resolution of a problem. My job as judge is to determine all of those

procedural issues, and I am prepared to do that. However, I have suggested to both parties a more practical manner in which to proceed in this case. This is my suggestion. It comes from me. It does

not come from the parties.

It is also a solution that, believe it or not, could easily be imposed by me by judicial order under my equitable jurisdiction. A

court sitting in equity has a lot of authority and a lot of leeway in fashioning an order that is that, equitable. So what I have suggested is the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 following:

Sklaroff vs. Abington That this matter that is pending before

the Court be remanded at this point in time, would be both stayed and partially remanded. There is a procedural challenge that has been brought by the doctor regarding the substantive validity of the ordinance. Under the

Pennsylvania Municipalities Planning Code, that should be first heard and a record established by the Zoning Hearing Board of Abington Township. It is my suggestion that that is what occur here, that the doctor's substantive challenge to the validity of the ordinance and map change be remanded and heard by the Zoning Hearing Board of Abington Township. And if either party is unhappy with the decision of that board, there is a right of appeal that arises out of the Pennsylvania Municipalities Planning Code for appellant review by this Court. There is another portion of the doctor's complaint that appears to be procedural in nature, as the solicitor for the township accurately pointed out to the judge. That challenge does not go

to the zoning hearing board but comes to the Court.

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Sklaroff vs. Abington Based upon the doctor's writing style, it is difficult for the Court to ascertain the exact nature of the procedural deficiencies he is alleging, and I have suggested to the doctor that judges may not be as bright as he anticipates them to be and may have difficulty understanding his point of view based on his writing style. So what I would suggest is that the doctor have the right to amend the pleading before the Court to more concisely and in a manner easier for those of lesser abilities to understand the exact and specific procedural irregularities he complains of. And we would give him time to do that. Perhaps it

could be done in ten sentences as opposed to ten pages. That matter would be stayed, the procedural aspects of it, until such time as the substantive challenge was heard by the zoning hearing board, and then both matters could proceed to the jurisdiction of this Court at once. The Court would then have a procedural challenge, a substantive challenge, a record on the substantive challenge to deal with, and it would seem to be all nicely packaged for someone

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 suggested.

Sklaroff vs. Abington even of my limited abilities to deal with. Now, we recognize that this would require a compromise upon the parties, but we believe that in the long run Abington Township will save a lot of money doing it this way instead of having to litigate all of this procedure, go up to the Commonwealth Court, come back down. Certainly the doctor would save time and actually spend more time in developing the record before the zoning hearing board. But at least

the issues would then be clarified, and this Court would act as an appellate body with regard to the substantive appeal. It's a rather simple solution to a complicated issue -- that seems to be the nature of most of my solutions -- and I think I found both parties to be receptive of this idea, especially in light of the fact that, as I explained to them, if I were to hear this case, I would be writing the end of the story anyway and would have the authority to do this. So that is what I have I think I have completely and

appropriately described our conversation in the back,

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about it. Honor.

Sklaroff vs. Abington and I think it's important that whenever a conversation occur in a robing room or in chambers that there not be any concern by members of the public that something secret is happening behind there, because justice needs to be open to be effective. that is why I came out here to explain what went on back there, so justice is transparent, as it should be. But before I go any further, I want to first go to the petitioner here and just ask whether or not I've correctly stated what we discussed. DR. SKLAROFF: THE COURT: MR. HERDER: You have. So

And sir? Agreed, Your

THE COURT:

Okay.

And my

understanding, sir, doctor, is that -- no disrespect. I'm sorry. DR. SKLAROFF: Don't worry

THE COURT: agreeable to this solution.

Is that you are

DR. SKLAROFF:

Yes.

It's

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. it.

Sklaroff vs. Abington consistent with what I had requested in the first place. THE COURT: Well, we didn't ask

We just asked whether or not you're okay with

DR. SKLAROFF: THE COURT: MR. HERDER: THE COURT:

Yes.

And you are? Yes. All right.

Accordingly, this transcript shall serve as the written Order of the Court, and it is ordered as follows: One: part and remanded in part. Two: Forthwith, the applicant This case is stayed in

shall file with the township on the appropriate township forms a substantive challenge to the validity of the ordinances in question. Three: The township shall

accept the filing and shall not contest the right or timeliness of the filing. By right, I mean standing

or timeliness of the filing. Four: The substantive

challenge shall be heard by the Zoning Hearing Board

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Sklaroff vs. Abington of Abington Township. To the extent that the township

needs to hire special counsel, they shall be given the appropriate time to do so if they wish to do so. Five: Upon the completion of

testimony presented in that matter before the zoning hearing board, the zoning hearing board shall comply with the requirements of the Municipalities Planning Code to render a decision, including findings of fact and conclusions of law, which may be appealed by any aggrieved party. Six: The remaining portion of

this case which constitutes, in this Court's opinion, a procedural challenge to the enactment of the ordinance shall be heard by this Court in the future. Seven: Within 45 days of

today's date, the applicant shall file an amended procedural challenge to this Court in conformity with the Rules of Court and the requirements of the Municipalities Planning Code setting forth with specificity in separate numbered paragraphs each and every procedural deficiency complained of. Eight: The township shall

respond to that in accordance with the rules. However, the determination of that issue shall be

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were concluded.)

Sklaroff vs. Abington stayed until such time as the decision of the zoning hearing board becomes final and unappealable in the substantive challenge or that decision comes before this Court for consideration. Nine: There shall be no

additional fees in terms of filing charged by the township with respect to the substantive challenge, the respondent having paid a filing fee to be before this Court. However, any costs that are normally

associated with that may be charged. Are there any suggested additions, changes, or revisions to the proposed Order? From the petitioner? DR. SKLAROFF: MR. HERDER: THE COURT: No, Your Honor. None, Your Honor. So ordered.

(At 2:20 p.m., the proceedings

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1 2 3 4 5 6 7 8 9 10 11 12 13 - - 14 15 16 17 18 19 20 21 22 23 24 25 Norma Gerrity, RPR Official Court Reporter I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me in the above cause and that this is a correct transcript of the same. C E R T I F I C A T E