Appeal from the Order of the Court of Common Pleas of Washington County, in case of John P. Wudkwych and Anna Marie Wudkwych, his wife v. The Borough of Canonsburg; The Borough of Canonsburg Building Inspector; James Puchany, Borough Manager; The Zoning Hearing Board of The Borough of Canonsburg, and The Zoning Officer of The Borough of Canonsburg, No. 53, April Term, 1982, A.D.
John P. Liekar, Jr., for appellants.
Frank C. Roney, Roney and Roney, for appellees.
Judges Doyle and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 111 Pa. Commw. Page 324]
John P. Wudkwych and Anna Marie, his wife (appellants) appeal an order of the Court of Common Pleas of Washington County (trial court) which sustained in part and dismissed in part certain preliminary objections filed by the Borough of Canonsburg (Borough), the Borough's Building Inspector, the Borough Manager, the Zoning Hearing Board (Board) of the Borough and the Zoning Officer of the Borough (appellees).
This case has had a somewhat tortured procedural history which we shall attempt to set forth briefly. In April 1982, the appellants filed a complaint in mandamus in the trial court against the appellees, alleging that they had filed an application for a variance seeking permission to remodel a brick building which they owned and which they wanted to use as a retail food shop. They averred that the Board had failed to conduct a hearing and issue a decision within sixty days of the filing of their petition and hence claimed entitlement to the variance, maintaining that the Board's failure to act in a timely manner constituted a deemed decision in their favor.*fn1 In their mandamus petition, they sought to
[ 111 Pa. Commw. Page 325]
compel the appellees to provide them with an application for an occupancy permit and to issue an occupancy permit and certificate of occupancy. In this proceeding, the appellants did not demand a jury trial nor did their prayer for relief contain a request for money damages although they did aver damage in that they had a willing tenant who would pay $800 a month to occupy and use the premises in accordance with the requested variance. The trial court dismissed the mandamus complaint. An appeal to this Court followed, and in Wudkwych v. Borough of Canonsburg, 84 Pa. Commonwealth Ct. 468, 479 A.2d 82 (1984) we reversed and remanded the case for further proceedings.
Subsequent to the remand, the trial court permitted the appellants to file an amended complaint styled "Amended Civil Action -- Mandamus." In that complaint the appellants sought damages from the appellees for loss of rental income, loss of business profits, attorney's fees, interest, costs, and incidental damages. The amended complaint also contained a demand for a jury trial. The appellees filed preliminary objections to this amended complaint, and it is the trial court's disposal of certain of these preliminary objections that is presently before us for review.
The appellees have filed preliminary objections asserting, inter alia, that the right to a jury trial had been waived, that attorney's fees are not recoverable in this case, and that no cause of action in mandamus would lie against the Borough, Borough Manager, or Building Inspector because those parties have no authority to act upon a request for a variance or to issue an occupancy permit. These preliminary objections were all sustained. There were other preliminary objections filed as well, but their disposition is not herein appealed.
[ 111 Pa. Commw. Page 326]
The appellants contend here that the appellees are not permitted to file preliminary objections to the amended complaint because they failed to file preliminary objections to the original complaint. In essence, they assert that the appellees have waived their right to do so. They also contend that the allegations averred in the amended complaint are similar to those in the original complaint and, therefore, that the appellees' preliminary objections filed to the amended complaint should have been filed in response to the original complaint. The trial court did not agree, concluding that the damages issue was not alleged in the original complaint. The proper way, of course, to challenge preliminary objections is to file preliminary objections to them in the form of a motion to strike for lack of conformity to law or rule of court pursuant to Pa. R.C.P. No. 1017(b). Merrick Appeal, 68 Pa. Commonwealth Ct. 506, 449 A.2d 820 (1982); Commonwealth ex rel. Milk Marketing Board v. ...