Appeal from the Order of the Court of Common Pleas of Wyoming County in the case of Borough of Tunkhannock and Donald C. Harding, Jr., and Gerald S. Morgan, Individually and as Councilmen v. County of Wyoming and Harold Grow, Robert V. Barziloski and Richard Fitzsimmons, Individually and as Commissioners, No. 84-325.
John F. Morgan, for appellant.
William W. Warren, Jr., Gelb, Myers, Bishop & Warren, for appellees.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 96 Pa. Commw. Page 244]
The Borough of Tunkhannock (Borough) and Donald Harding, Jr. and Gerald S. Morgan (hereinafter collectively referred to as Appellants), individually and as Councilmen, appeal here the final decree of the Wyoming County Court of Common Pleas dismissing Appellants' exceptions and refusing to enjoin the County of Wyoming (County) from expanding the county prison, a pre-existing non-conforming use, because of non-compliance with the Borough zoning ordinance.
On April 27, 1983 the County applied to the Borough's Zoning Board of Adjustment (Zoning Board) for a variance and a special use permit to allow reconstruction of the county prison on property a portion of which had been occupied as a jail since approximately 1866 when the County purchased the property. The Zoning Board denied the application on the basis that the County sought not an expansion of a pre-existing non-conforming use on property zoned R-1 residential but construction of an entirely new facility.
The County did not appeal the Zoning Board's decision but decided to investigate other sites. When on March 29, 1984 the County decided to proceed with construction at the original site, the Borough, on May 25, 1984, filed with the common pleas court a complaint in mandamus requesting that the court direct the County to refrain from proceeding with plans for erecting the
[ 96 Pa. Commw. Page 245]
new county prison. On July 23, 1984 the court, with the consent of the parties, converted the action into a Petition for Declaratory Judgment. On October 16, 1984, after hearing, the court entered a decree nisi in favor of the County to which exceptions were filed. Meanwhile, the County had advertised for bids for the construction work and awarded the contracts. On October 29, 1984 the Borough filed a "Petition to Restrain Construction and/or Demolition." On October 31, 1984, construction commenced.
On December 13, 1984 the common pleas court entered an order dismissing exceptions to the October 16, 1984 decree nisi and directed that the decree nisi become final. There was no ruling on the "Petition to Restrain Construction and/or Demolition."
On December 19, 1984 the Borough filed an appeal in this Court from the December 13, 1984 order. On December 21, 1984, the Borough filed a "Motion for Post-Trial Relief (Including Injunction)" with the common pleas court. There was no ruling on that motion.
On April 19, 1985, we denied Appellants' application for injunctive relief filed with this Court on February 22, 1985 based upon an analysis of the enabling statutes applicable to the County and the Borough plus consideration of the consequences of allowing one governmental entity to have pre-eminent powers over the other. Commonwealth of Pennsylvania, Department of General Services v. Ogontz Area Neighbors Association, 505 Pa. 614, 483 A.2d 448 (1984). We determined that plain reading of the enabling legislation pursuant to which the County acted in proceeding with its plans to enlarge its prison together with the persuasive ...