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THOMAS G. BRADLEY AND MARY L. BRADLEY v. TOWNSHIP SOUTH LONDONDERRY (02/03/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 3, 1982.

THOMAS G. BRADLEY AND MARY L. BRADLEY, APPELLANTS
v.
TOWNSHIP OF SOUTH LONDONDERRY, COUNTY OF LEBANON, PA., APPELLEE

Appeal from the Order of the Court of Common Pleas of Lebanon County in case of Township of South Londonderry, County of Lebanon, Pennsylvania v. Thomas G. Bradley and Mary L. Bradley, No. 21, 1978.

COUNSEL

Thomas G. Bradley, with him Robert C. Rowe, for appellants.

Thomas S. Long, for appellee.

Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Mencer. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Mencer

[ 64 Pa. Commw. Page 397]

On June 8, 1978, the Township of South Londonderry (appellee), a second class township in Lebanon County, instituted an equity action in the Court of Common Pleas of Lebanon County to enforce provisions of its junkyard ordinance*fn1 and zoning ordinance,*fn2

[ 64 Pa. Commw. Page 398]

    to compel Thomas G. Bradley and his mother, Mary L. Bradley (appellants) to remove several unlicensed and allegedly discarded automobiles from her property,*fn3 and to enjoin both from parking or storing "junk" vehicles thereon.*fn4

After a hearing on December 6, 1979, a chancellor sitting in equity entered an adjudication and decree nisi on March 24, 1980. He found that the Bradley

[ 64 Pa. Commw. Page 399]

    property constituted a nuisance in fact,*fn5 ordered the appellants to remove the several vehicles therefrom, and enjoined them from parking or storing automobiles without current license plates "and/or" state inspection stickers outside on the property. The decree

[ 64 Pa. Commw. Page 400]

    also enjoined the appellants from maintaining two or more unlicensed and discarded motor vehicles on the property and ordered that a criminal penalty of $500 per day be assessed against them for each day of non-compliance. The appellants took exception to the adjudication and the decree. Arguments were held before the Court of Common Pleas en banc, which filed its opinion, sur exceptions, on August 4, 1980 and ordered that the decree be made absolute. This appeal followed.

The appellants raise a plethora of legal arguments in opposition to the order of August 4, 1980. First, they contend that the lower court lacked jurisdiction to enforce the zoning ordinance because the township Board of Supervisors (Board) did not possess the capacity to bring an equity action to enforce the ordinance and failed to exhaust its statutory remedies provided in the ordinance and the Pennsylvania Municipalities Planning Code (Code).*fn6 The appellants argue that the Board delegated the sole and exclusive authority to enforce the zoning ordinance to an administrative

[ 64 Pa. Commw. Page 401]

    official and prohibited itself from exercising that authority.

That argument is based upon an incomplete reading of the zoning ordinance. Article 27 of the ordinance specifically states: "Nothing herein contained shall prevent the Township from taking such other lawful action as is necessary to prevent or remedy any violation." The affairs of the township are entrusted to the Board, which, unless otherwise provided, takes action by an affirmative majority vote.*fn7 An amendment to the township's complaint, dated July 17, 1978, states "that a majority of the Supervisors voted to authorize the Solicitor to take any necessary action to enjoin the defendants from violating the Zoning Ordinance." Clearly, the Board had the statutory capacity to institute an equity action to enforce the township zoning ordinance and properly authorized that action.

The township, moreover, was not required to exhaust its statutory remedies before seeking to enjoin the appellants' alleged violation of its zoning ordinance. The right of a municipality to seek injunctive relief to prevent or remove violations of its zoning ordinances is specifically established in Section 617 of the Code, 53 P.S. § 10617. That authority is not circumscribed by the power of the municipality to impose penalties for violations or by the existence of adequate statutory remedies. See Board of Supervisors of West Brandywine Township v. Matlack, 38 Pa. Commonwealth Ct. 366, 394 A.2d 639 (1978); South Fayette Township v. Boy's Home, 31 Pa. Commonwealth Ct. 254, 376 A.2d 663 (1977); Bedminster Township v. Brauer, 19 Bucks 353 (1969), appeal quashed per curiam, 436 Pa. 603, 259 A.2d 156 (1969).

Second, the appellants contend that the lower court lacked jurisdiction to enforce Section 212 of the junkyard

[ 64 Pa. Commw. Page 402]

    ordinance*fn8 because the Board never took official affirmative action to seek an injunction thereunder and because the legislative power to enact the junkyard ordinance does not encompass the power to abate nuisances -- only the power to license and regulate.

The Board, however, did authorize its solicitor to take any action necessary*fn9 to enjoin the appellants' alleged violation of the zoning ordinance. The appellants read that mandate too narrowly. They construe it as a restriction, enabling the township to proceed against them only under the zoning ordinance itself. As we interpret the Board's action, it broadly authorized the solicitor to utilize any legal avenue he considered appropriate to enjoin conduct violative of the zoning ordinance. Proceeding under the junkyard ordinance to have the Bradley property adjudicated a nuisance in fact and abated in equity was simply an alternative legal avenue the solicitor was impliedly empowered to pursue to enjoin conduct violative of the zoning ordinance. The Board, moreover, impliedly approved of the proceeding against the appellants under the junkyard ordinance. The township's complaint, which incorporated Section 212 of the junkyard ordinance (providing, inter alia, that nuisances in fact may be abated by proceeding against a violator in a court of equity) was verified by the Board chairman who was properly authorized to make the affidavit.

The appellants take no issue with the legislative power granted second class townships to abate nuisances through equitable remedies. They contend, however, that Section 212 of the junkyard ordinance is invalid because that enforcement provision automatically and impermissibly makes any continued violation

[ 64 Pa. Commw. Page 403]

    of the ordinance constitute a nuisance in fact. Unfortunately, the appellants have misread the ordinance. Section 212 does not say that any continued violations of the junkyard ordinance shall constitute a nuisance in fact. It says that the Board may proceed in a court of equity for injunctive relief to remedy continued violations of the ordinance which actually do constitute nuisances in fact.

It is true, as the appellants contend, that, under the authority granted to regulate and license junkyards, townships have no power to define the storage of junked or abandoned automobiles as a nuisance per se. Section 702 of The Second Class Township Code, 53 P.S. § 65712,*fn10 however, authorizes local governing bodies to declare certain activities to be nuisances, including the storage of junked and abandoned automobiles, when, based upon actual conditions in the township, they constitute nuisances in fact. Commonwealth v. Hanzlik, 400 Pa. 134, 161 A.2d 340 (1960). Before the chancellor, the township had the burden of proving that the appellants' "storage" of automobiles on Mrs. Bradley's property constituted a nuisance in fact. Commonwealth v. Keiser, 88 York 58, 68 Pa. D. & C.2d 418 (1974). It discharged that burden to the chancellor's

[ 64 Pa. Commw. Page 404]

    satisfaction. The lower court had jurisdiction to enforce Section 212 of the junkyard ordinance because the Board properly authorized the township solicitor to proceed in equity to abate a nuisance in fact.

Third, the appellants contend that the definitions of "junkyard" in the junkyard ordinance and the zoning ordinance are irreconcilable.*fn11 They argue that, because the junkyard ordinance was enacted before the zoning ordinance, the definition of "junkyard" in the former is invalid under the rules of statutory construction*fn12 and Article 29 of the zoning ordinance. Without the junkyard ordinance, the appellants reason, there can be no equitable remedy. A careful examination of both ordinances discloses that they do not conflict.*fn13 The definition of "junkyard" in the zoning ordinance

[ 64 Pa. Commw. Page 405]

    is substantially similar to that found in the junkyard ordinance, albeit without a reference to quantity. The zoning ordinance governs, inter alia, the use of residential land and prohibits the maintenance of a junkyard, as defined therein, on residential property. The junkyard ordinance is directed toward regulating the operation of junkyards as businesses and defines "junkyard" for the purposes of licensing. Section 203 of the junkyard ordinance requires that one who operates or maintains a junkyard, as defined by that ordinance, shall obtain a license. A violation of one ordinance is a separate and distinct offense from a violation of the other. Neither ordinance allows a use prohibited by the other.

Fourth, the appellants argue that the second sentence of Section 202B of the junkyard ordinance*fn14 should be held unconstitutional because the word "discarded" employed therein is so vague that men of ordinary intelligence must necessarily guess at its meaning. This argument is without merit. In an enactment sought to be interpreted, undefined words and phrases are to be construed according to their common and approved usage. Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1903(a); Derry Township v. Swartz, 21 Pa. Commonwealth Ct. 587, 346 A.2d 853 (1975). "Discard" means to dispose of as no longer useful or valuable (verb); a person or thing cast off (noun). Webster's Third New International Dictionary 644 (1966). There is nothing so vague or ambiguous about the word "discarded" that would cause arbitrary interpretation and discriminatory enforcement. A party who claims that an act is unconstitutional shoulders a heavy burden of proof. National Wood Preservers, Inc. v. Department of Environmental Resources, 489 Pa. 221, 414 A.2d 37

[ 64 Pa. Commw. Page 406]

(1980), appeal dismissed, 449 U.S. 803, 101 S.Ct. 47, 48 (1981). A legislative enactment enjoys a presumption of constitutionality and will not be declared unconstitutional unless it clearly, palpably and plainly violates the constitution; all doubts are to be resolved in favor of a finding of constitutionality. Parker v. Children's Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978). The appellants here have neither rebutted that presumption nor otherwise met their burden of showing unconstitutionality.

Fifth, the appellants argue that they are not in violation of the junkyard ordinance because they have not "discarded"*fn15 any of the automobiles on the property*fn16 but are, instead, maintaining "the physical integrity" of the vehicles. The record completely belies that argument. Manifestly, automobiles which have been unmoved and continuously exposed to the elements for from 4 years to a decade have been discarded. The record discloses, inter alia, that several of the automobiles are in deplorable condition, rusting and otherwise deteriorating. One is nearly overgrown by foliage. A second "automobile," the shell of a Ford Fairlane 500 convertible, has two trees growing between the bumper and the body of the "vehicle" itself.

[ 64 Pa. Commw. Page 407]

The glass in one of its side windows is broken. Clearly, the appellants have discarded several of the automobiles within the meaning of the junkyard ordinance.

Sixth, the appellants contend that the pleadings did not put them on notice regarding the nuisance question. They maintain that the nuisance-in-fact issue was not properly before the lower court because it is a material allegation upon which the cause of action was based and it was not stated in the complaint or amended complaint as required by Pa. R.C.P. No. 1019(a).*fn17 This argument is based upon an incomplete reading of the township's complaint. Paragraph 12 of the complaint specifically cites Section 212 of the junkyard ordinance which authorizes the Board to proceed against a violator in a court of equity for injunctive relief if a nuisance in fact exists. The complaint clearly indicated that the proceeding was being brought under the authority of Section 212. Thus, evidence of a nuisance in fact was part of the burden of proof to be carried by the appellee at the hearing. Because Section 212 of the junkyard ordinance was incorporated in paragraph 12 of the complaint and included as an exhibit thereto, the appellants were given the requisite notice to defend an allegation that their property use constituted a nuisance in fact.

Seventh, the appellants contend that the evidence presented before the chancellor was insufficient, as a matter of law, to sustain the finding that their property use amounted to a nuisance in fact.

Our scope of review in equity matters is limited. The findings of fact of the chancellor will be reversed only where there has been manifest or clear error or a clear abuse of discretion. The

[ 64 Pa. Commw. Page 408]

    chancellor's decision will stand if there exists sufficient evidence to justify the findings and logically sound, reasonable inferences and conclusions derived therefrom. Even a preponderance of testimony against the findings will be insufficient if there is testimony which, if believed, will warrant them.

Groff v. Borough of Sellersville, 12 Pa. Commonwealth Ct. 315, 317, 314 A.2d 328, 330 (1974). Substantial evidence in the record supports the chancellor's finding that the Bradley property constitutes a nuisance in fact. To briefly reiterate: The record reveals that most of the cars have not been started or moved for several years. They are in a rusting and deteriorating condition, which presents a danger to children playing around them. At least two of the vehicles are overgrown by or entangled with weeds or other foliage. On several occasions, the vehicles on the appellant Mary L. Bradley's property have obstructed the free flow of traffic in a public alley between the Bradley lots.*fn18 More significantly, neighbors of the appellants testified that they believed vehicles on the property have become the home of rats and vermin. It has been held that a haven for rodents is a nuisance in fact. Commonwealth v. Sadecky, 41 Pa. Commonwealth Ct. 86, 398 A.2d 1073 (1979). The courts are not required to wait for actual injuries to occur before a condition may be adjudged a nuisance and abated. Talley v. Borough of Trainer, 38 Pa. Commonwealth Ct. 441, 394 A.2d 645 (1978). Each of the chancellor's findings is amply supported by evidence.

Finally, the appellants contend that they are in compliance with Section 1508 of the zoning ordinance because several of the vehicles at issue were "stored" on the premises prior to the enactment of the ordinance,

[ 64 Pa. Commw. Page 409]

    thereby establishing a pre-existing nonconforming use under Section 107(13.1) of the Code, 53 P.S. § 10107(13.1)*fn19 and Section 1403 of the South Londonderry Zoning Ordinance. We need not consider the merits of that contention, however.*fn20 Where a nuisance exists, equity may intervene to abate it, even though there may have been compliance with zoning acts and ordinances. Mazeika v. American Oil Co., 383 Pa. 191, 118 A.2d 142 (1955); Diehl v. Lockard, 254 Pa. Superior Ct. 111, 385 A.2d 550 (1978). Even if the appellants had established a valid nonconforming use prior to the enactment of the zoning ordinance, their storage of discarded and deteriorating automobiles was properly prohibited by the lower court.

The appellants' remaining contentions are without merit.

Order affirmed.

Order

Now, this 3rd day of February, 1982, the order of the Court of Common Pleas of Lebanon County, dated August 4, 1980, dismissing the exceptions of Thomas G. Bradley and Mary L. Bradley to a decree nisi and

[ 64 Pa. Commw. Page 410]

    directing the Prothonotary of Lebanon County to enter a decree absolute, is hereby affirmed.

This decision was reached prior to the expiration of the term of office of Judge Palladino.

Disposition

Affirmed.


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