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EDWARD L. DUNLAP AND SHIRLEY L. BENNER v. JOHN DEAN LARKIN AND THELMA MORGAN FARMERIE (05/24/85)

filed: May 24, 1985.

EDWARD L. DUNLAP AND SHIRLEY L. BENNER, APPELLANTS
v.
JOHN DEAN LARKIN AND THELMA MORGAN FARMERIE, T/A DEAN'S HARDWARE AND BUILDING SUPPLY



Appeal from the Order entered December 20, 1983 in the Court of Common Pleas of Warren County, Civil Division, at Nos. 292 of 1982, 463 of 1982 & 770 of 1982.

COUNSEL

Paul H. Millin, District Attorney, Warren, for appellants.

Rick Hernan, Warren, for appellees.

Cirillo, Hoffman, and Rosenwald, JJ.*fn1

Author: Hoffman

[ 342 Pa. Super. Page 597]

The issues on appeal arise from a confusing melange of three consolidated actions, one in equity for an injunction, a zoning appeal, and an action in ejectment. We affirm in part and reverse in part.

Before addressing appellants' contentions, we must first set out the relevant facts. Appellants, plaintiffs below, filed a complaint seeking a preliminary injunction to restrain appellees, defendants below, from erecting a building on appellees' property located at 142 Main Street, Tidioute Borough, Warren County, Pennsylvania. The gist of the April 19, 1982 complaint was that the proposed building would "not conform to the requirements of the Warren County Zoning Ordinance of 1965." (Appellants' Complaint for Injunction para. 3 at 1). On April 20, the lower court issued the preliminary injunction conditioned upon appellants entering security in the amount of $10,000. See generally Pa.R.Civ.P. 1531. Appellants did so. Following the April 26, 1982 hearing on whether the injunction should continue, the lower court ordered the record "remanded to the Zoning Hearing Board of Warren County to hear and determine pursuant to the Municipalities Planning Code and the Warren County Zoning Ordinance of 1965 the issue presented" in appellants' complaint. The court further ordered the injunction to continue and appellants to maintain their bond "in the event damages may ensue." A hearing was held before the Zoning Hearing Board on May 21, 1982, and the Board upheld the action of the zoning officer in granting a

[ 342 Pa. Super. Page 598]

    permit to appellees.*fn2 On June 28, appellants filed a notice of appeal from that decision in the Court of Common Pleas.

On June 25, 1982, appellees filed a petition to increase the amount of appellants' bond because of additional damages they allegedly suffered from the time of the issuance of the preliminary injunction. Appellants moved to dismiss that petition, dissolve the injunction, and have their bond returned. On August 2, after a hearing, the court ordered appellants to file either a cash or corporate bond in the amount of $20,000. See 5 Goodrich-Amram 2d § 1531(b):7 (1977) ("increased security"). Because appellants failed to file the increased bond by the close of the next business day, August 3, appellees moved to dismiss appellants' appeal from the zoning board. On August 4, the lower court dismissed the appeal and ordered the then current $10,000 bond to be retained until a hearing could be held to determine the damages suffered by appellees. Appellants subsequently moved for reconsideration of the court's order, but there is no indication in the record of any action taken on that motion.

On October 13, 1982, appellants filed a complaint in ejectment against appellees. Count I alleged that appellees encroached on appellants' property, and Count II alleged that appellants acquired, and appellees encroached upon, an easement by prescription in the vacant area between the parties' two buildings.*fn3 Appellees answered the complaint and filed a counterclaim seeking damages on the bond "[b]ecause of [appellants'] unmeritorious appeal of the Zoning Hearing and unwarranted injunction against" them. (Appellees' Answer in Assumpsit with New Matter and Counterclaim to Appellants' Complaint in Ejectment para. 29 at 6).

Appellants then (1) moved to substitute a corporate bond for the cash bond, (2) filed a preliminary objection in the nature of a demurrer to appellees' counterclaim, and (3)

[ 342 Pa. Super. Page 599]

    moved to consolidate the three actions in accordance with Pa.R.Civ.P. 213. On January 17, 1983, the lower court ordered the three actions consolidated, and, on February 10, it ordered that appellants be permitted to substitute a corporate bond for their cash bond. By order and opinion of April 13, 1983, the court denied appellants' preliminary objection. Appellants thereupon filed an answer to appellees' new matter and counterclaim.

Following an October 4-5, 1983 jury trial, the jury returned verdicts (1) in favor of appellants on their claim that appellees' building encroached upon appellants' property, (2) against appellants on their claim for an easement by prescription, and (3) in favor of appellees for $8,000 for damages sustained by reason of the injunction issued to appellants. Timely filed post-trial motions were denied by the lower court by order and opinion of December 20, 1983.*fn4 This appeal followed.

Appellants contend that the $8,000 judgment in favor of appellees on their counterclaim should be vacated for the following reasons: (1) because appellants' complaint for an injunction was, in effect, an appeal to the Zoning Hearing Board, appellees are not entitled to damages as a matter of law; and (2) because appellants proved that appellees' building encroached upon their land, they cannot be liable for damages on the bond to appellees. Appellants also contend that they are entitled to a new trial on the question of their alleged acquisition of a prescriptive easement because the court below made a confusing and improper charge to the jury. For the following reasons, we agree that a new trial is warranted on the easement issue; however, we find that appellees are entitled to damages on the bond.

[ 342 Pa. Super. Page 600]

I.

Appellants first contend that appellees are not entitled to damages on the bond. We disagree. We initially note that appellants did not challenge the validity of the Warren County Zoning Ordinance, but alleged instead that appellees' building would not conform to the requirements therein. Therefore, as appellants correctly assert in their brief, their proper remedy would have been to proceed in accordance with the provisions of the Pennsylvania Municipalities Planning Code (PMPC), 53 P.S. §§ 10101 et seq. Specifically, § 11007, which concerns decisions and orders not involving the validity of an ordinance, provides that aggrieved persons "shall first submit their objections to the zoning hearing board . . . ." Appellants failed to do this. Furthermore, § 11001 makes it clear that "[t]he proceedings set forth in this article [concerning appeals] shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body of a municipality, its agencies or officers adopted or issued pursuant to this act." (Emphasis added). Accord Harris v. Oil Service, Inc., 78 Pa. Commonwealth 510, 512 n. 4, 467 A.2d 1376, 1377 n. 4 (1983); Appeal of Cibula, 25 Pa. Commonwealth 333, 335, 360 A.2d 812, 813 (1976) (this requirement "mandatory"). Thus, we conclude that the lower court had no jurisdiction over appellants' equity action.

Appellants contend, however, that the lower court's action in remanding the original injunction action to the Warren County Zoning Appeal Board was proper in accordance with 42 Pa.C.S.A. § 708 and that, because their complaint was, in effect, an appeal to the Board, no bond was required under the automatic stay provisions of 53 P.S. § 10916. Therefore, they argue that appellees cannot claim damage on the bond which the lower court ordered ...


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