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TOWNSHIP BENSALEM AND STANLEY HOROWITZ v. RICHARD PRESS (11/27/85)

decided: November 27, 1985.

THE TOWNSHIP OF BENSALEM AND STANLEY HOROWITZ, APPELLANTS
v.
RICHARD PRESS, SR., AND JEAN B. PRESS, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Richard Press, Sr. and Jean D. Press, his wife v. The Township of Bensalem, The Board of Supervisors of The Township of Bensalem, Stanley Horowitz and Natalie Strange, No. 77-5509-15-2.

COUNSEL

Benjamin E. Zuckerman, with him, Henry F. Huhn and Leslie G. Dias, for appellants.

Edwin N. Popkin, with him, John P. Koopman, Begley, Carlin & Mandio, for appellees.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 93 Pa. Commw. Page 237]

This is an appeal by Appellants Township of Bensalem (Township) and Stanley Horowitz (Horowitz) the Township's zoning officer from an order of the Court of Common Pleas of Bucks County dismissing post-trial motions for judgment notwithstanding the verdict and for a new trial as well as a motion to dismiss for lack of subject matter jurisdiction.

Appellees Richard and Jean Press (the Presses) were the owners of premises in the Township upon which they operated a children's camp, a nursery school and an adult swim club as legal non-conforming uses. The camp and nursery school were begun in 1952 prior to the enactment of the Township's zoning ordinance in 1954 and the swim club was permitted pursuant to a decision of the Zoning Hearing Board (ZHB or Board) in 1962.

In the spring of 1975 the Presses entered into a lease-purchase agreement with a Mr. D'Onofrio which agreement provided for the sale of the premises

[ 93 Pa. Commw. Page 238]

    for $630,000.00 less certain credit for lease payments made prior to settlement. The lease agreement contained a provision permitting the lease-purchaser to terminate the agreement in the event of the issuance of "a cease and desist order by any lawful government agency because of [lessee's] operation of the facilities as they are presently authorized for lessor's use. . . ."

On June 11, 1975 Horowitz issued a cease and desist order to the Presses and a copy of this order was sent to D'Onofrio. The June 11 order was based upon an alleged "failure to obtain a use and occupancy permit." On June 17, 1975 a second cease and desist order was issued to the Presses; again, a copy went to D'Onofrio. The basis for this cease and desist order was an alleged use of the premises contrary to the R-1 residential use regulations of the Township's zoning ordinance.

Upon receipt of these notices the Presses' attorney advised Horowitz that the uses to which the premises were being put had previously been determined to be legal non-conforming uses and that there was no justification for requiring a new use and occupancy permit. Horowitz was also told that his enforcing the cease and desist orders would have dire consequences for the Presses.

As a result of the June 17, 1975 order, a copy of which D'Onofrio received on June 19, 1975, D'Onofrio exercised his option and terminated his lease-purchase agreement in a letter to the Presses dated June 23, 1975. The Presses then filed an appeal with the ZHB from the issuance of the orders.*fn1 The August 5, 1975 minutes of the ZHB report the following:

[ 93 Pa. Commw. Page 239]

MR. DENKER: I will make a motion that this is not properly before the Board at this particular time, and we should not hear the matter and, therefore, the zoning officer should revoke the cease and desist order.

(WHEREUPON THERE IS FURTHER DISCUSSION BY THE PARTIES)

MR. DENKER: My motion is on the floor.

MR. STEWART: With the opinion of our solicitor in mind, I feel that it is improperly brought before this Board. I will second the motion.

A motion has been made and seconded. All those in favor?

MR. DENKER: Aye.

MR. STEWART: Aye.

MR. BELL: Opposed.

With that, I also feel that there are numerous zoning violations on this property and I can only hope that our zoning officer will file it properly and bring it back before this Board to clear up the zoning violations. (Emphasis added.)

Subsequent to August 5, 1975 the Presses brought suit in the common pleas court against the Township and Horowitz alleging that the issuance and failure to rescind the June 17, 1975 order was negligent and/or reckless conduct on the part of Horowitz in his capacity as zoning officer. The jury, by verdict slips containing specific interrogatories, found that Horowitz's conduct was negligent and reckless, that his conduct was the legal cause of the Presses' losses, and that the Township was liable. The Presses were awarded $400,000.00 in compensatory damages which amount was assessed jointly against the Township and Horowitz. In addition, punitive damages were

[ 93 Pa. Commw. Page 240]

    awarded against Horowitz for $500.00 and against the Township for $250,000.00.

Numerous errors have been asserted on appeal and we will address them seriatim.

THE JURISDICTIONAL ISSUES

Preliminarily we note that this Court's jurisdiction over the instant appeal is, at best, attenuated. The appeal is not from any trial court ruling on the cease and desist order because, as will become clear presently, the June 17, 1975 order was not appealed to the trial court. Rather this case involves a separate suit for damages against the Township and Horowitz based upon Horowitz's conduct with respect to the issuance and failure to rescind the June 17, 1975 order.*fn2 Nonetheless the suit here did have its origins in the cease and desist order and does involve an examination of the powers of the zoning officer under Section 614 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10614. Accordingly, we believe this case can be viewed as a proceeding wherein there is drawn into question the application, interpretation or enforcement of the municipality's zoning ordinance and the affairs of the municipality and its employees and, hence, we will treat the appeal as one falling within our jurisdiction pursuant to Section 762(a)(4)(i)(A) of the Judicial Code, 42 Pa. C.S. § 762(a)(4)(i)(A).*fn3

[ 93 Pa. Commw. Page 241]

In reviewing, as we do here, whether judgment notwithstanding the verdict is warranted the evidence must be considered in the light most favorable to the verdict winner who must be given the benefit of all reasonable inferences of fact arising from the evidence. Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977). In addition, any conflict in the evidence must be resolved in favor of the verdict winner. Id. A judgment notwithstanding the verdict will be entered only in clear cases. Id. In reviewing the denial of a motion for a new trial we must determine whether the verdict is so contrary to the evidence as to shock the Court's sense of justice. Morgan v. ...


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