        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amy McClellan, Robert VanWagner           :
and The Crossing Legacy Foundation,       :
                  Appellants              :
                                          : No. 1036 C.D. 2016
             v.                           : Submitted: May 1, 2017
                                          :
Zoning Hearing Board of                   :
Upper Makefield Township                  :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                         FILED: May 23, 2017

             Amy McClellan, Robert Van Wagner and The Crossing Legacy
Foundation (Objectors) have filed an appeal with this Court from the June 5, 2015
and May 16, 2016 orders of the Court of Common Pleas of Bucks County (Trial
Court). For the following reasons, we dismiss Objectors’ appeal.
             Objectors appealed the November 4, 2014 decision of the Zoning
Hearing Board of Upper Makefield Township (ZHB) to the Trial Court. WCI
Holdings, LLC (WCI), the owner of the subject property, intervened in support of
the ZHB and the Township of Upper Makefield (Township) intervened in support
of Objectors. The Trial Court entered an order fixing a scheduling conference for
all parties on April 2, 2015. Following the conference, the Trial Court issued a
briefing schedule by April 8, 2015 order.       Objectors and the Township were
directed to file briefs by May 15, 2015. The Township filed its brief; Objectors did
not, nor did they request additional time to file their brief from the Trial Court. On
May 29, 2015, WCI filed a motion to preclude further participation by Objectors
for failure to comply with the Trial Court’s briefing schedule and prosecute their
case, with a certificate of service. Objectors did not submit any response to WCI’s
motion to preclude. On June 5, 2016, the Trial Court issued an order barring
Objectors “from further participation in, and prosecution of, their Appeal for
failure to comply with the Court ordered briefing schedule in the within matter.”
(June 5, 2016 Order, Trial Court Docket No. 16.) Notice of the filing of the Trial
Court’s order was mailed to Objectors on June 10, 2015 in compliance with
Pennsylvania Rule of Civil Procedure No. 236.             Objectors did not seek
reconsideration from the Trial Court or otherwise seek to challenge the order
precluding their participation before the Trial Court. The Township continued to
prosecute its case and on May 16, 2016, the Trial Court affirmed the ZHB. The
Township has not appealed the Trial Court’s order.
             On June 24, 2016, Objectors filed a Notice of Appeal with this Court.
On August 30, 2016, this Court’s filing office issued a briefing schedule notifying
Objectors that their brief and reproduced record were due October 11, 2016. On
October 17, 2016, this Court issued a dormant order for failure to file brief and
directed Objectors that their brief and reproduced record “shall be filed and served
within 14 days of the exit date of this Order or the above notice of appeal shall be
dismissed as of course.” (October 17, 2016, Commonwealth Court Docket No.
1036 C.D. 2016.) Objectors filed their brief and reproduced record with this Court
on November 7, 2016.
             In Objectors’ brief to this Court, Objectors address their preclusion
from this matter in their “statement of the case” and “brief summary of the case.”
In their “statement of the case,” Objectors state:


                                          2
               The ZHB prepared the record, but omitted the transcripts
               it had ordered. Pursuant to local rule *27, a conference
               was held to solve the transcript dispute and set a briefing
               schedule. The duplicate transcripts took longer than
               expected. WCI thereafter filed motions to preclude
               [Objectors] from participation. On June 5th, the motion
               to preclude was signed by [the Trial Court]. While
               [Objectors were] precluded from participation, the
               [Township] proceeded with the case.

(Objectors’ Brief at 8.) In their “summary of the case,” Objectors state:


               11) Appellants ordered the duplicate transcripts but did
               not meet the briefing schedule, and were preclude [sic]
               from argument on July 5, 2015 [sic.]


(Id. at 12.)      Objectors’ “statement of questions involved” does not include a
question as to whether the Trial Court erred in precluding Objectors below for
failure to prosecute their case. (Id. at 7.) Objectors’ brief does not otherwise
address the Trial Court’s June 5, 2016 order precluding participation by Objectors.
(Id. at 13-19.)    Objectors do not use the word “waiver” or a word or phrase that is
synonymous with the word “waiver” in their brief.
               In sum, Objectors have waived their right to proceed with this appeal
at multiple places along their journey. First, Objectors failed to file a brief in the
Trial Court addressing their issues complained of on appeal from the ZHB.
Wynnewood Civic Association v. Board of Adjustment of Lower Merion Township,
179 A.2d 649, 652 (Pa. 1962) (“It is well settled that a question not raised properly
in the court below will not be considered by this Court on appeal and that rule
applies even though the question sought to be raised involves a constitutional

                                           3
issue.” (internal citations omitted)); Toth v. City of Allentown Zoning Hearing
Board, 499 A.2d 1142, 1144 (Pa. Cmwlth. 1985) (objector waived issue for
appellate review where it was not raised before the trial court).
             Next, Objectors failed to oppose WCI’s motion to preclude them for
violating the Trial Court’s order and failing to prosecute their appeal; when the
Trial Court granted the motion and issued an order precluding Objectors, Objectors
took no action. Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 117 (Pa.
1974) (“Requiring a timely specific objection to be taken in the trial court will
ensure that the trial judge has a chance to correct alleged trial errors. This
opportunity to correct alleged errors at trial advances the orderly and efficient use
of our judicial resources”); Dennis v. Southeastern Pennsylvania Transportation
Authority, 833 A.2d 348, 352 (Pa. Cmwlth. 2003). The Pennsylvania Rules of
Appellate Procedure clearly provide that “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” Pa. R.A.P. 302(a);
Appeal of R.C. Maxwell Co., 548 A.2d 1300, 1305 (Pa. Cmwlth. 1988) (waiver
found where landowner failed to comply with Pennsylvania Rules of Appellate
Procedure Nos. 302(a) and 2117(c) by raising issues in the trial court below and
indicating where the issues were raised in the statement of the case); see also Pa.
R.C.P. No. 227.1(b).
             Lastly, upon finally filing their brief with this Court, Objectors failed
to raise the issue of whether their preclusion below resulted in waiver, even though
the Trial Court, in a lengthy and thorough opinion, clearly held that Objectors had
waived any and all arguments and issues and concluded that their appeal to this
Court should be dismissed. (Trial Court 1925(a) Opinion.); see also Pa. R.A.P.
2116(a).   Muldrow v. Southeastern Pennsylvania Transportation Authority, 88


                                          4
A.3d 269, 274 (Pa. Cmwlth. 2014) (any argument not fairly presented in the
statement of questions involved, undeveloped or not supported by pertinent
authority is waived). Objectors also failed to advise this Court where it had
objected to its preclusion from the case in the proceedings before the Trial Court or
to address the issue of waiver anywhere in their brief to this Court. See Pa. R.A.P.
2117(c), 2119; see also Commonwealth v. Spotz, 18 A.3d 244, 304, 323 (Pa. 2011)
(Denying an appellant’s Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-9546,
petition following conviction for first degree murder and the imposition of a death
sentence, the Court found multiple instances of waiver for failure to fully develop
an argument in appellant’s brief).
             In Board of Supervisors of Willistown Township v. Main Line
Gardens, Inc., 155 A.3d 39 (Pa. 2017), our Supreme Court addressed a vexing
question at the outer limits of the waiver doctrine: whether an appeal can be
dismissed because the appellant did not file briefs in the trial court in support of
post-trial motions. Id. at 40-41. The Court held that filing a brief in support of a
post-trial motion was not mandatory under the text of Pennsylvania Rule of Civil
Procedure 227.1 but cautioned that its holding should not be construed to “mean
that briefs never need to be filed during post-trial practice.” Id. at 45. Rather, the
Court distinguished the circumstances where the trial court has exercised its
inherent authority to order the filing of briefs and a party has failed to comply with
the trial court’s order, holding that in such circumstances “it is for the trial court,
again in its discretion, to find waiver or, alternatively, to overlook the
noncompliance and rule on the merits of the issues presented.” Id.
             The compounded waiver in the instant matter does not fall near the
outer limits of the waiver doctrine; instead, the conduct of Objectors falls neatly


                                          5
within its bounds and demonstrates the continuing vitality of the view expressed by
our Supreme Court in its seminal decision Dilliplaine that judicial resources and
efficiency are threatened where a trial court is denied the first opportunity to
correct any alleged error and, instead, the first opportunity to do so is presented
when the matter moves to the appellate courts.               Yet, Main Line Gardens makes
clear that even in instances where waiver may not be mandated by the rules of civil
or appellate procedure, the trial court retains the inherent authority to order briefing
and a party who chooses not to comply with the Trial Court’s order must be
prepared for the consequence of waiver.
               Accordingly, Objectors’ appeal is dismissed.1


                                           __________ ___________________________
                                           JAMES GARDNER COLINS, Senior Judge




Judge Covey did not participate in the decision of this case.




1
  Objectors’ appeal borders on being frivolous. “[A]n appeal is frivolous when it has no basis in
law or in fact. Stated otherwise, a frivolous appeal is one in which no justifiable question has
been presented and which is readily recognizable as devoid of merit in that there is little prospect
of success.” Canal Side Care Manor, LLC v. Pennsylvania Human Relations Commission, 30
A.3d 568, 579 (Pa. Cmwlth. 2011) (internal citations omitted). The Pennsylvania Rules of
Appellate Procedure allow for the assessment of reasonable counsel fees and costs against an
appellant if an appellate court determines that an “appeal is frivolous or taken solely for delay or
that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or
vexatious.” Pa. R.A.P. 2744; see Canal Side Care Manor, 30 A.3d at 579; Nahas v. Zoning
Hearing Board of Schuylkill County, 823 A.2d 237, 239 (Pa. Cmwlth. 2003). While the award of
reasonable counsel fees and costs pursuant to Pennsylvania Rule of Appellate Procedure 2744
may be imposed sua sponte, see Borough of Kennett Square v. Lal, 645 A.2d 474, 481 (Pa.
Cmwlth. 1994), we decline to do so here.
                                                 6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Amy McClellan, Robert VanWagner        :
and The Crossing Legacy Foundation,    :
                  Appellant            :
                                       : No. 1036 C.D. 2016
           v.                          :
                                       :
Zoning Hearing Board of                :
Upper Makefield Township               :



                                ORDER

           AND NOW, this 23rd day of May, 2017, the appeal of Amy
McClellan, Robert Van Wagner and The Crossing Legacy Foundation in the
above-captioned matter is DISMISSED.




                                 __________ ___________________________
                                 JAMES GARDNER COLINS, Senior Judge
