Appeal from the Order of the Court of Common Pleas of Chester County in the case of James K. Overstreet and Evelyn Overstreet v. Zoning Hearing Board of Schuylkill County, No. 162, July Term, 1970.
Roger E. Legg, for petitioner.
William C. Massinger, for respondents.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge MacPhail.
[ 71 Pa. Commw. Page 349]
In this review of an interlocutory order, certified for appeal under 42 Pa. C.S. § 702(b)*fn1 by Judge Lawrence E. Wood of the Court of Common Pleas of Chester County, the petitioner, Schuylkill Township, asks us to decide if a township must join, as indispensable parties, tenants of a mobilehome park, when the grant of an injunction to enforce the township's zoning ordinance against the respondent landowners would have the effect of forcing those tenants to move their homes. In this case of first impression,*fn2 we affirm Judge Wood's order requiring that all affected tenants be joined as indispensable parties.
[ 71 Pa. Commw. Page 350]
We trace the origin of this dispute to the summer of 1968, when the Overstreets, owners of a parcel of land in Schuylkill Township, filed an application to expand their existing mobilehome park. Adopting a referee's report, the common pleas court denied the Overstreet application in 1979; we affirmed that decision in Overstreet v. Zoning Hearing Board of Schuylkill Township, 49 Pa. Commonwealth Ct. 397, 412 A.2d 169 (1980), petition for allowance of appeal denied June 9, 1980.
The township now seeks to enforce our order by an injunction restraining the Overstreets from maintaining and operating their mobilehome park on the eastern portion of their tract. Specifically, in its prayer for relief, the township has asked the trial court to require the Overstreets " to remove from such portion of their said property all mobilehomes, mobilehome pads and associated facilities, roads, water lines, sewers and electrical lines and lights." (Emphasis added.)
In his April 2, 1982 opinion calling for the joinder of the mobilehome space lessees as indispensable parties, Judge Wood correctly noted that, if the township prevails, the affected tenants will have to move; at oral argument, the township conceded that this would be the effect of a ruling in its favor.
Nevertheless, in its brief, the township contends that it only seeks to restrain the Overstreets from using a portion of their property in contravention of a zoning ordinance and that the tenants will not lose any rights should the injunction issue.
The relief which the township seeks, however, belies that contention; hence, we must agree with the trial court that no decree can be fashioned in this equity action without impairing the tenants' rights to possession of ...