ROBERT B. SKLAROFF, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 Petitioner, v.

TOWNSHIP OF ABINGTON 1176 Old York Road Abington, Pennsylvania 19001 Respondent, BAEDERWOOD LIMITED PARTNERSHIP 1301 Lancaster Avenue Berwyn, PA 19312 Intervenor * * * * * *

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IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, COMMONWEALTH OF PENNSYLVANIA

NO. 2011-02540 CIVIL DIVISION

JURY-TRIAL REQUESTED

Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 [215=333-4900] pro se POST-HEARING MEMORANDUM IN RE: INTERVENOR BAEDERWOOD LIMITED PARTNERSHIPS MOTION TO QUASH PROCEDURAL CHALLENGE AND ALTERNATE REQUEST FOR THE IMPOSITION OF A BOND

I, Robert B. Sklaroff, M.D., certify that the following statements are true and accurate. This Memorandum is filed expeditiously followingcompletion of todays Hearing forin the interest of judicial efficiencytemptation was resisted to correct the record regarding the presentation of the case; on the other hand, compulsion to document this assertion prompts the filing of this brief document. In many respects, although the event consumed less than an hour, the situation from

Petitioners perspective has been appreciably simplified, and the rationale for many subpoenas has now been obviated. Although the pending-issue ostensibly is standing, the threshold issue is whether Landowner has the right to raise it, inasmuch as Mr. Herder volunteered the fact that he had informed Mr. Kaplin of the filing of the Petitioner five to six days prior to the 6/15/2011 Hearing before Judge Del Ricci. [Thus, the need to confirm this assertion by subpoenaing Judge Del Riccias per the appendedhas been mooted.] This is not insignificant, in light of a recent Commonwealth Court decision [appended] which reaffirmed the need to abide by the 30-day filing deadline, absent a cogent explanation for its having been breached

[http://statecasefiles.justia.com/documents/pennsylvania/commonwealth-court/1320cd10_4-15-11.pdf]. Specifically, this adjudication emphasizes the necessity to honor the 30-day filing limitation [here, following publication of a notice by the township] unless a party is able to satisfy a burden that an impermissible deprivation of constitutional rights has transpired; this was manifestly not accomplished.

When a party seeks to bring a proceduralchallenge under Section 5571.1 of the Judicial Code beyond the thirtydaylimitation period, a party must first demonstrate that because of the alleged defectin statutory procedure, the application of the [thirty-day] time limitationwouldresult in an impermissible deprivation of constitutional rights. Section 5571.1(c)of the Judicial Code; Messina v. East Penn Twp., 995 A.2d 517 (Pa. Cmwlth.),appeal granted, ___ Pa. ___, 9 A.3d 1136 (2010). If a party is able to satisfy thatburden to show an impermissible deprivation of constitutional rights, the partymust also satisfy the burden-of-proof requirements set forth under Section5571.1(e)(2) of the Judicial Code. Messina. Under that subsection, a party mustestablish not only that a municipality failed to strictly comply with statutoryprocedures, but must also demonstrate [t]hat there was a failure to substantiallycomply with statutory procedure which resulted in
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insufficient notification to thepublic of impending changes in or the existence of the ordinance, so that the publicwould be prevented from commenting on those changes and intervening, ifnecessary, or from having knowledge of the existence of the ordinance. Section5571.1(e)(2)(ii) of the Judicial Code. Therefore, when more than thirty days have elapsed since the intendedeffective date of an ordinance, notwithstanding a partys ability to demonstrate animpermissible constitutional deprivation, if the party cannot satisfy its burden ofproof under Section 5571.1(e)(2), it is not entitled to relief in the nature of an orderdeclaring that the challenged ordinance is invalid. Thus, in this case, if thepleadings and other evidence indicate that BIG could not sustain its burden ofproving that the failure [of the Township] to substantially comply with statutoryprocedure resulted in insufficient notification to the public of the impendingchanges in or the existence of the ordinance that prevented the public fromcommenting on the proposed changes or intervening, then the Court can affirm thetrial court on that ground.
Points regarding the issue of Standing were refuted earlier with particular regard to the only two cases cited to support Landowners assertions [drawn from common-law], as cited during the Hearing: In discussion of Spahn, [http://caselaw.findlaw.com/pa-supremecourt/1095018.html], disclaiming any standing simply as a taxpayer is pivotal [despite the fact that Petitioner had not included any such assertion in any of these filings]; furthermore, the gravamen of the case-law (reflected in the quoted vignette, infra) does not capture the health/safety assertions that thread through all of Petitioners filings [emphasizing that increasing congestion at the T-Intersection choke-point would impede movement of emergency vehicles, not just delay movement of his own automobile]: Spahn lived approximately one and a half blocks from the subject properties, but that he only walked by the properties every day. Thus, the court concluded that Spahn's interest was no different from the interest common to all citizens regarding obedience to the law.

And Northampton is tangential, for Petitioner is not (nor has he portrayed himself as representing) any type of community group (which might, consequently, be comprised of people who themselves do not properly merit being granted formal standing status within the judicial system) [http://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19740730_0041446.PA.htm/qx ]. In this regard, concern persists regarding Mr. Kaplins ethical conduct, recalling how he had presented his own knowledge-base{ 14}: Promptly upon the Courts issuance of its June 15, 2011 Order, the Township advised Landowner of the filings by Appellant and the Courts June 15, 2011 Order. This disingenuous/misleading portrayal of what transpired continues to cry for clarification, notwithstanding myriad/tangential ad hominem attacks on Petitioner [uttered during the Hearing] which are unworthy of being addressed, let alone refuted. For example, despite having been provided refutation of the political-motivation argument, persistent efforts were manifest to perpetuate it; perhaps it was felt that the big lie would become partially-believable if the Kaplin/Herder tandem employed it as a mantra. And, notwithstanding his assertion to the contrary, Petitioner was never ordered to pay anything to Hahnemann; assertions that Petitioners pro se efforts have been repeatedly dismissed are also pejorative/erroneous. Although refuting the incomplete/inaccurate narrative is deferred, a pivotal concern must be noted regarding the potential for a devastating ripple-effect were Judge Del Riccis decision to be overturned; assuredly, the import of the Zoning Board Hearings [which are to begin this-p.m.] would be jeopardized. Otherwise, pending review of the transcript [available in a fortnight], leads that will be pursued relate to the claim that negotiations were held between Landowner and the MontCo Planning Commission and/or the Abington Planning Commission, yielding the decision to defer making any changes in the Ordinance; the use of the passive-voice here is remarkable, and the who/what/where/when/why/how of this posture will be probed aggressively. A copy of the 4

procedural-history [prepared for the Court] will also be sought, and the claim that damages occurred will be pursued via Mr. Fred Snow (and, in particular a copy of the lease will be requested). It should also be noted that the depiction of the choke-point which has been the Petitioners focus is not a five-way intersection; rather it is a T at a railroad bridge at the convergence of Washington Land and Susquehanna Road. Finally, the procedural/substantive challenge-filings have, indeed, been generated for separate use, in compliance with all available statutes/rules, and the reason for the subpoenas was to demonstrateby the provision of factual informationthat this claim is not frivolous; no effort has been madeas asserted inaccurately by Messrs. Kaplin/Herderthat witnesses would be asked to render legal judgments. This is not all about the Petitioner; the issue is (and always has been) the Ordinances legality, recognizing how it enhances the established health/safety threat to the citizenry. Surprisingly, Messrs. Kaplan/Jonas tried to overlook the plain-reading of the Realen Opinion[a case in which they said they had both actively participated] which overtlyinvokesthe need for police power to protect this profound health/safety criterionwhen statute/ordinance specifically articulated it; it is undeniably applicable to this case. Indeed, Mr. Jonas may revel in collegial interaction, but he was subpoenaed to discuss the reverse spot-zoning issue because the disputed-parallelogram is properly characterized as a peninsula rather than as an island, with the former inapposite to this case-citation that has been touted as controlling. Petitioner views this matter with a level of concern that is comparable to that expressedalbeit for different reasonsby Mr. Kaplin. The law of the case is that Petitioner has unambiguously/indisputably been granted standing; notwithstanding misrepresentations to the contrary, Petitioner has acted throughout in good-faith (not procrastinating, as alleged by Messrs. Kaplin/Herder). When Judge Del Ricci politely advised that he should not be subpoenaed, he emphasized the fact that people should not attempt to go around him; this had not been Petitioners intent 5

and, following this exchange, Petitioner simply decided to file this evidence of what was assuredly not an ex parte interaction, thinking that a misapprehension existed (because all that was needed was confirmation of the quotation from Mr. Herderwhich was subsequently volunteered). Nevertheless, to expunge any thought that any effort is being made by Petitioner to avoid Judge Del Riccis jurisdiction (notwithstanding the fact that his Order was quite consistent with Petitioners intent and inconsistent with Abingtons Motion to Quash), consideration may be given to transferring this motion to his jurisdiction, although Petitioner is insufficiently aware of the culture of the MontCo Courts to feel comfortable filing a formal motion in this regard. Respectfully Submitted:

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Robert B. Sklaroff, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 July 12, 2011 --pro se

ROBERT B. SKLAROFF, M.D. 1219 Fairacres Road Rydal, Pennsylvania 19046-2911 Petitioner, v. TOWNSHIP OF ABINGTON 1176 Old York Road Abington, Pennsylvania 19001 Respondent, BAEDERWOOD LIMITED PARTNERSHIP 1301 Lancaster Avenue Berwyn, PA 19312 Intervenor * * * * * *

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IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, COMMONWEALTH OF PENNSYLVANIA

NO. 2011-02540 CIVIL DIVISION

JURY-TRIAL REQUESTED

ORDER AND NOW, this ___ day of _______, 2011, upon consideration of this COUNTER-MOTION TO INTERVENOR BAEDERWOOD LIMITED PARTNERSHIPS MOTION TO QUASH PROCEDURAL CHALLENGE AND ALTERNATE REQUEST FOR THE IMPOSITION OF A BOND, it is hereby ORDERED and DECREED that the Brandolini Motion be QUASHED; FURTHER, Intervenor/Appellee shall provide (a)a narrative that details why Attorney-Kaplin misportrayed when he first knew of the Petitioners filing (noting he now admits he knew of it 5-6 days prior to 6/15/2011, but consciously remained legally inert); (b)documentation of specific assertions included in the instant Motion, including [but not limited to] contractual-proof of alleged potential-harm from Mr. Fred Snow, representing the Whole Foods store]; and(c)a paragraph-by-paragraph response to thePetitioners 6/20/2011 filing [to identify disputed issues]. BY THE COURT: 7

_________________________ J Affirmation I certify that all statements within this filing are true and correct, to the best of my knowledge.

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Robert B. Sklaroff, M.D. 7/12/2011

Certificate of Service I certify that I delivered a true-and-accurate copy of this document to the following people, on this date. Robert Rex Herder, Jr., Esquire Attorney ID # 38827 Bresnan & Herder 311 Lindenwold Avenue Ambler, PA 19002 Marc B. Kaplin, Esquire Kaplin Stewart Meloff Reiter & Simon, P.C. Union Meeting Corporate Center 910 Harvest Drive P.O. Box 3037 Blue Bell, PA 19422-0765

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Robert B. Sklaroff, M.D. 7/12/2011