J. DePolo v. Bd. of Supervisors of Tredyffrin Twp. and M. Heaberg, K. Mayock
168 A.3d 387
| Pa. Commw. Ct. | 2017Background
- DePolo, an amateur radio operator, sought to build a 180-foot radio tower on his 2.9-acre R-1/2–zoned property in Tredyffrin Township; the zoning officer said the ordinance limited structures to 35 feet.
- DePolo appealed to the Tredyffrin Zoning Hearing Board (ZHB), which held hearings and denied the 180-foot request but granted a permit for a 65-foot tower as a purported "reasonable accommodation." DePolo had withdrawn a separate variance application during the proceedings.
- ZHB relied on local ordinance height limits, Pennsylvania law requiring reasonable accommodation of amateur radio (53 Pa.C.S. § 302), and the FCC’s PRB‑1 policy, concluding the municipality reasonably accommodated DePolo by offering 65 feet and that the 180-foot tower would harm neighborhood character and historic viewsheds.
- Instead of appealing to the state trial court within 30 days, DePolo filed suit in federal district court claiming federal preemption under PRB‑1; the district court dismissed for failure to state a claim and the Third Circuit dismissed the appeal, holding DePolo failed to seek the available state-court review and that the ZHB decision was entitled to preclusive effect.
- After the Third Circuit denial, DePolo attempted to "transfer" the federal case to state court under 42 Pa.C.S. § 5103(b), filing in Chester County trial court more than two years after the ZHB decision; the trial court dismissed the matter and the Commonwealth Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 42 Pa.C.S. § 5103(b) permits DePolo to transfer his dismissed federal action to state court to function as a timely appeal from the ZHB decision | DePolo argued § 5103(b) allows transfer of a federal case to preserve state claims/appeals and that his federal suit was effectively dismissed for lack of jurisdiction, so transfer would cure his failure to appeal the ZHB | Defendants argued § 5103(b) applies only when federal dismissal is for lack of jurisdiction, the federal courts here exercised jurisdiction and dismissed on merits-related grounds, and the Third Circuit already denied transfer — federal orders must be given full faith and credit | Court held § 5103(b) does not apply because federal courts had jurisdiction and dismissed on non‑jurisdictional grounds; moreover, the Third Circuit’s denial bars a subsequent transfer; affirmed trial court dismissal |
Key Cases Cited
- Izzo v. Borough of River Edge, 843 F.2d 765 (3d Cir. 1988) (federal jurisdiction and preclusion principles in municipal/zoning amateur‑radio disputes)
- Delaware Valley Citizens’ Council for Clean Air v. Commonwealth of Pennsylvania, 755 F.2d 38 (3d Cir. 1985) (federal orders on same subject matter entitled to full faith and credit)
- DePolo v. Board of Supervisors of Tredyffrin Township, 105 F. Supp. 3d 484 (E.D. Pa. 2015) (district court dismissed DePolo’s federal challenge for failure to state a claim)
- DePolo v. Board of Supervisors of Tredyffrin Township, 835 F.3d 381 (3d Cir. 2016) (Third Circuit held DePolo forfeited state‑court review by not appealing the ZHB decision and dismissed federal appeal)