filed: April 25, 1980.
SHOHOLA TOWNSHIP BOARD OF SUPERVISORS AND JOHN E. QUINN AND GUDRUN K. QUINN, HIS WIFE
GEORGE L. BISHOP AND MADELINE BISHOP, HIS WIFE. APPEAL OF SHOHOLA TOWNSHIP BOARD OF SUPERVISORS. SHOHOLA TOWNSHIP BOARD OF SUPERVISORS AND JOHN E. QUINN AND GUDRUN K. QUINN, HIS WIFE V. JAMES J. WHITE AND FLORENCE WHITE, HIS WIFE. APPEAL OF SHOHOLA TOWNSHIP BOARD OF SUPERVISORS
No. 710 and 711 Oct. Term 1979, Appeal from the Order of the Court of Common Pleas of Pike County, Civil Div., Nos. 5 and 6 of March 1978.
Jack G. Linshaw, Milford, for appellants.
Carl Leventhal, Hawley, for appellees.
Spaeth, Hester and Cavanaugh, JJ.
[ 279 Pa. Super. Page 315]
This appeal arises from an order sustaining preliminary objections to two complaints in equity. The complaints are substantially identical and were filed on April 13, 1978, by the Shohola Township Board of Supervisors and John and Gudrun Quinn, one against George and Madeline Bishop, the other against James and Florence White.
The allegations on the basis of which the Quinns seek relief may be summarized as follows. The Quinns are owners of a campsite in Shohola Falls Trails End, a subdivision that had been established for campsites; the Bishops and Whites are owners of other campsites in the subdivision. The deeds of each of these owners is restricted explicitly by a declaration of restrictions that had been previously recorded by Greenbriar Development Company, the developer and original owner of the subdivision. One of the restrictions in the declaration states that "[n]o structure of any type shall
[ 279 Pa. Super. Page 316]
be erected, placed or permitted to remain on any campsite." The Bishops have violated this restriction by erecting on their campsite a building, thirty feet by eight feet, attached to a trailer; the Whites have violated it by erecting on their campsite a frame construction twenty feet by eight and a half feet, a shed ten feet by seven feet, and a trailer twenty feet by seven and a half feet. Both the Bishops and the Whites have been notified in accordance with the declaration of restrictions, but they have not removed the offending structures. As a result, the Quinns, exercising their rights under the declaration of restrictions, seek injunctive relief.
The allegations on the basis of which the Shohola Township Board of Supervisors seeks relief may be summarized as follows. On July 7, 1972 (a date prior to the purchase of campsites by any of the property owners involved in this suit but subsequent to the recording of the declaration of restrictions), the Greenbriar Development Company applied to the Board of Supervisors for a zoning variance to permit the development of Shohola Falls Trails End as a subdivision for campsites. The Board granted the variance but on the condition that the density of the subdivision not exceed six campsites per acre, that no campsite be smaller than 4,500 square feet, that all lots in the subdivision be subject to the recorded declaration of restrictions, and that the development company post a $2,500 bond to ensure the enforcement of the declaration of restrictions.*fn1 By erecting structures on their campsites and thus violating the declaration of restrictions, the Bishops and the Whites also violated the conditions imposed by the Board of Supervisors on its grant of a variance to Greenbriar. As a result, the Board seeks injunctive relief.
[ 279 Pa. Super. Page 317]
The Bishops and the Whites filed preliminary objections to the complaints, alleging 1) that the Board of Supervisors could not enforce the declaration of restrictions and therefore under Pa.R.C.P. 2002(a) was not a real party in interest, and 2) that the Board's sole remedy for a violation of the declaration of restrictions was to call the bond posted by Greenbriar.*fn2 The Board and the Quinns filed answers to the preliminary objections, maintaining that the Board had "standing to enforce restrictive covenants which formed a part of the Variance" granted to Greenbriar, and denying that the Board's sole remedy was to call the bond posted by Greenbriar. Briefs on the preliminary objections were submitted, and on January 31, 1979, after oral argument, the lower court sustained the objections and ordered the Board removed from the record as a party plaintiff.*fn3 The Board then filed two separate appeals in the Commonwealth Court, one from the lower court's order removing it from the suit against the Bishops, the other from the order removing it from the suit against the Whites. The Bishops filed a motion to quash the Board's appeal in the suit against them. On March 29, 1979, both of the Board's appeals and the Bishops' motion to quash were transferred from the Commonwealth Court to this court pursuant to 42 Pa.C.S.A. § 5103(a) (1979 Pamphlet). The appeals were consolidated, and on April 19, 1979, this court denied the motion to quash.
In arguing that the Board is not a real party in interest, the Bishops and the Whites ignore material allegations in the complaints. While we might agree that the Board could not bring suit to enforce the declaration of restrictions were the declaration not a condition imposed on
[ 279 Pa. Super. Page 318]
the variance granted by the Board to Greenbriar, the complaints allege that the declaration was such a condition.*fn4 There can be no doubt that the Board in granting the variance had the power to impose as prerequisites to the grant reasonable conditions, restrictions and safeguards in furtherance of public health, safety and welfare. E.g., Everson v. Zoning Board of Adjustment, 395 Pa. 168, 149
[ 279 Pa. Super. Page 319]
A.2d 63 (1959); Cornell Uniforms, Inc. v. Township of Abington, 8 Pa. Commw. 317, 301 A.2d 113 (1973); 53 P.S. § 10912 (1972). See also Butler v. Derr Flooring Co., 4 Pa. Commw. 341, 285 A.2d 538 (1971).*fn5 There can also be no doubt that the Board had the right to sue in equity to enforce those conditions when breached. See Upper Moreland Township v. Meade, 420 Pa. 613, 218 A.2d 271 (1966); 53 P.S. § 10617 (1972); Robert S. Ryan, Zoning Law and Practice in Pennsylvania § 9.4.21 (1970); cf. Board of Supervisors of West Brandywine Township v. Matlack, 38 Pa. Commw. 366, 394 A.2d 639 (1978); County of Fayette v. Blout, 35 Pa. Commw. 523, 387 A.2d 167 (1978). Given these principles, it follows necessarily that the Board is a real party in interest to the present suits. See Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950); Hillbrook Apartments, Inc. v. Nyce Crete Co., 237 Pa. Super. 565, 352 A.2d 148 (1975); Commonwealth, Dept. of Transportation v. Pa. Power & Light Co., 34 Pa. Commw. 594, 383 A.2d 1314 (1978) (to be a real party in interest one must not merely have an interest in the result of the action but must be in such command of the action as to be legally entitled to give complete acquittance or discharge to the other party upon performance).
The lower court stated that the Board was not a real party in interest because "[h]ad [Shohola Township] originally adopted [the] restrictions [contained in the declaration of restrictions] as part of its zoning scheme, it would be doubtful whether it could withstand a judicial inquiry into its validity." This statement, however, confuses the issue of the Board's ability to be a party to the present suits with the issue of its right to secure relief upon its cause of action. Moreover, if we overlook the failure of the Bishops and the Whites to challenge the legality of the Board's conditions in
[ 279 Pa. Super. Page 320]
their preliminary objections, and assume that the lower court could have properly reached the merits of this issue, and further assume that the Board's imposition of the numerous detailed restrictions in the declaration was unreasonable and that as a result even those restrictions in the declaration that the Board might have reasonably imposed were voidable, still the lower court was confronted with the issue of whether the Bishops and the Whites could raise the illegality of the conditions as a defense in an enforcement proceeding. See Muncy Borough v. Stein, 440 Pa. 503, 270 A.2d 213 (1970); Honey Brook Township v. Alenovitz, 430 Pa. 614, 243 A.2d 330 (1968); Mager v. Hilltown Township, 6 Pa. Commw. 90, 293 A.2d 631 (1972), appeal dismissed, 411 U.S. 979, 93 S.Ct. 2273, 36 L.Ed.2d 955 (1973); Robert S. Ryan, Zoning Law and Practice in Pennsylvania § 9.4.21 (1970). None of these issues was recognized or discussed by the lower court (or by the parties), and we shall not consider any of them now.
In holding that the Board is a real party in interest, we do not intend to condone the pleading deficiencies that appear in the complaints. When the Board and the Quinns joined as party-plaintiffs in the suits against the Bishops and the Whites (as they were entitled to do so under Pa.R.C.P. 2229(a)),*fn6 they were required under Pa.R.C.P. 1020(b) to state their respective causes of action in separate counts of the complaints, each count preceded by a heading identifying the cause of action pleaded in that count. Had the Board and the Quinns followed these rules, much confusion might have been avoided as to the nature of the Board's cause of action against the Bishops and the Whites- i.e., was the cause of action premised upon the conditions the Board
[ 279 Pa. Super. Page 321]
placed on the variance granted to Greenbriar, or was it premised, as the Bishops and the Whites conceived, upon some vague notion that a police power exists entitling the Board to enforce any restrictive covenant that landowners might privately agree to. The remedy for poor pleading, however, was not the removal of the Board from the suits, but leave to the Board to amend its complaints. See generally William Penn Parking Garage v. Pittsburgh, 464 Pa. 169, 346 A.2d 269 (1975); Pa.R.C.P. 1033; Goodrich-Amram 2d § 1033:4.*fn7
As regards the argument that the order of the lower court should be affirmed because the Board's sole remedy is to call the bond posted by Greenbriar, we understand this argument to be an assertion that by requiring Greenbriar to post bond in the amount of $2,500, the Board agreed to limit its remedy for a violation of the conditions on the variance to an action on the bond, and to forgo the usual remedy of an action in equity. The Bishops and the Whites, however, point to no language either in the Board's order granting the variance or in any other document reflecting such an agreement. Nor have we discovered such language upon our review of the record.
The order of the lower court is reversed, and the case is remanded with instructions to the lower court to grant leave to the Board and the Quinns to amend their complaints, within such time as the lower court deems appropriate, so as to conform to Pa.R.C.P. 1020 and 1021.