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CURTIS CLEMMER AND JUNE V. CLEMMER v. LOWER FREDERICK TOWNSHIP (10/20/86)

decided: October 20, 1986.

CURTIS CLEMMER AND JUNE V. CLEMMER, HIS WIFE, AND DAWN LENORE KRATZ, APPELLANTS
v.
LOWER FREDERICK TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Lower Frederick Township v. Curtis H. Clemmer and June V. Clemmer, his wife, and Dawn Lenore Kratz, No. 81-19826.

COUNSEL

Richard E. Wells, Wells, Wells, Loeben, Hoffman & Holloway, with him, Mark Ryan, for appellants.

James A. Cunningham, for appellee.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail. Concurring and Dissenting Opinion by Judge Colins.

Author: Macphail

[ 101 Pa. Commw. Page 342]

Curtis Clemmer, June Clemmer (Clemmers) and their daughter, Dawn Lenore Kratz (jointly, Appellants) have brought this timely appeal from a final decree of the Court of Common Pleas of Montgomery County which ordered the demolition of a structure on their property and assessed fines and civil penalties for the violation of local building, subdivision and zoning ordinances. We vacate and remand.

[ 101 Pa. Commw. Page 343]

The record reveals that sometime prior to September 10, 1979, the Clemmers began construction of a structure on their property without a building permit. On September 10, 1979, Lower Frederick Township (Township) notified the Clemmers that they were in violation of the local building code. The Clemmers subsequently applied for a building permit for the construction of a one-story structure to be used as a storage facility. As construction progressed, the Township concluded that the building appeared more like a residence than a "storage shell". On February 19, 1980, the Township accordingly informed the Clemmers that if they planned to use the facility for residential purposes they would need to apply for subdivision approval which would most likely necessitate obtaining a variance from the Township's subdivision ordinance. They were further requested to halt construction pending consideration of their subdivision application. Despite this request, the Clemmers failed to apply for subdivision approval and continued building.

On November 4, 1981, the Township filed a complaint in equity with the common pleas court and a motion for preliminary injunction which was granted, following a hearing, on February 2, 1982. The preliminary injunction order enjoined further construction and prohibited use of the building except for storage. At a subsequent hearing on the Township's motion for a permanent injunction, the parties reached an agreement on a consent decree which was approved and entered as a final court order on June 20, 1983.

On March 19, 1984, the Township filed a Petition for Further Interim Relief and Final Decree with the common pleas court wherein it was alleged that the Clemmers had violated the consent decree by continuing to build and by failing to diligently pursue subdivision approval. The Township also requested that the

[ 101 Pa. Commw. Page 344]

Clemmers be ordered to cease and desist violating local ordinances. The Clemmers answered by denying any violation of the consent decree or local ordinances. Moreover, in New Matter, the Clemmers alleged that the subject property had been conveyed to their daughter, Dawn Lenore Kratz, on January 9, 1984.

At the April 18, 1984 hearing on the Township's petition, the Clemmers informed the Chancellor that Ms. Kratz had not been joined by the Township as a party defendant even though, as owner of the property, she was an indispensable party under Pa. R.C.P. No. 2227(a). The Chancellor, in response, directed the Township to list Ms. Kratz as an indispensable party. The Township subsequently filed a petition for a rule to show cause why Ms. Kratz should not be joined as an additional party ...


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