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TOWNSHIP SOUTH FAYETTE v. BOYS' HOME (07/25/77)

decided: July 25, 1977.

TOWNSHIP OF SOUTH FAYETTE
v.
THE BOYS' HOME, A CORPORATION, A/K/A THE BOYS' INDUSTRIAL HOME OF WESTERN PENNSYLVANIA, ET AL. CENTER FOR THE ASSESSMENT AND TREATMENT OF YOUTH, INC., APPELLANT. (2 CASES); TOWNSHIP OF SOUTH FAYETTE V. THE BOYS' HOME, A CORPORATION, AND CENTER FOR COMMUNITY ALTERNATIVES, A CORPORATION, AND CENTER FOR THE ASSESSMENT AND TREATMENT OF YOUTH, A CORPORATION, AND COMMONWEALTH OF PENNSYLVANIA. COMMONWEALTH OF PENNSYLVANIA, APPELLANT. (2 CASES); TOWNSHIP OF SOUTH FAYETTE V. THE BOYS' HOME, A CORPORATION, A/K/A THE BOYS' INDUSTRIAL HOME OF WESTERN PENNSYLVANIA, ET AL. DAVID E. HAGAN, PH.D., APPELLANT



Appeals from the Orders of the Court of Common Pleas of Allegheny County in case of Township of South Fayette v. The Boys' Home, a Corporation, a/k/a The Boys' Industrial Home of Western Pennsylvania, and Center for Community Alternatives, a Corporation, and Center for the Assessment and Treatment of Youth, a Corporation, and the Commonwealth of Pennsylvania, No. G.D. 76-01384.

COUNSEL

Thomas F. Halloran, Assistant Attorney General, with him Robert P. Kane, Attorney General, and Richard Steven Levine, for appellants.

Timothy P. O'Reilly, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Concurring and Dissenting Opinion by President Judge Bowman. Judge Mencer joins in this concurring and dissenting opinion.

Author: Rogers

[ 31 Pa. Commw. Page 256]

On February 11, 1976, at the suit of South Fayette Township, a judge of the Court of Common Pleas of Allegheny County enjoined the Center for Assessment and Treatment of Youth, Inc. (CATY), a nonprofit corporation, and David E. Hagan, its president, from continuing to operate a so-called secure treatment unit for juvenile delinquents on property owned and formerly used as an orphanage by another nonprofit corporation, The Boys' Home, until the defendants should have complied with the Township's zoning and land use ordinances. The Commonwealth of Pennsylvania, which was interested in the unit's establishment and had contracted for its use as a place for the commitment of delinquents, was permitted to intervene. By order of March 15, 1976, the court found CATY and

[ 31 Pa. Commw. Page 257]

Hagan to be in contempt of court for operating the unit in violation of its February 11, 1976 order and imposed fines on each. CATY and the Commonwealth have appealed the February 11, 1976 injunction order and CATY, Hagan and the Commonwealth have appealed the March 15, 1976 contempt order, the Commonwealth because it paid CATY's and Hagan's fines.

The Township's original complaint in equity seeking the injunction named The Boys' Home and a third nonprofit corporation, Center for Community Alternatives (CCA) as defendants. It sought an order prohibiting the defendants from operating a "penal institution for juvenile criminal offenders." A hearing on the application for a preliminary injunction was scheduled for January 30, 1976. On January 29, 1976 the Commonwealth sought intervention which the court allowed for the purpose of its participation in the preliminary injunction hearing. On the same day, Boys' Home and CCA filed preliminary objections and motions to stay the hearing scheduled January 30, 1976 pending determination of jurisdictional issues raised by their objections. Their motion was refused. On January 30, 1976, the court, on motion of the Township, allowed the complaint to be amended so as to substitute CATY for CCA as a defendant.

The hearing was conducted on January 30, 1976. The Township produced evidence which tended to show that the use of the property as a home for juvenile delinquents was not permitted by its zoning ordinance; that no application for required zoning and occupancy permits had been made; that the presence of adjudicated juvenile delinquents on the property posed a threat to the health, safety and welfare of the community; and that other facilities within the Township and owned by the Commonwealth were available for this program. In defense, CATY, the Commonwealth and The Boys' Home contended that the proposed secure

[ 31 Pa. Commw. Page 258]

    treatment unit would serve a valuable public service and that it would be harmful to the six delinquents which they had already placed on the property and to the program if the unit should be forced to close. Evidence of the fiscal and regulatory control exercised by the Commonwealth was also adduced.

On February 11, 1976, the chancellor preliminarily enjoined CATY and Hagan, its president and only incorporator, from using the property until appropriate Township zoning and occupancy permits had been sought and obtained. CATY and the Commonwealth appealed to this Court from that order and applied unsuccessfully for supersedeas in the court below and in the Commonwealth and the Supreme Courts of Pennsylvania.

CATY and the Commonwealth first say that the court below was without jurisdiction in equity because the Township had available to it adequate statutory remedies under the Township's zoning and land use ordinances, and presumably under Acts of the General Assembly. This argument is totally devoid of merit. Section 617 of the Pennsylvania Municipalities Planning Code*fn1 empowers municipalities to bring actions to restrain the use of land in violation of their ordinances enacted pursuant to the Act. See also Hilltown Township v. Mager, 6 Pa. Commonwealth Ct. 90, 293 A.2d 631 (1972).

CATY and the Commonwealth next complain that the chancellor erred by failing to rule on their preliminary objections prior to conducting a hearing and deciding that the preliminary injunction should issue. Their argument seems to be that a court may not grant a preliminary injunction without first disposing of preliminary objections; ...


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