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ALBERT FROST AND BETTY FROST v. BOROUGH CENTERVILLE (12/01/87)

decided: December 1, 1987.

ALBERT FROST AND BETTY FROST, HIS WIFE; JOANNE P. STATHERS AND LAWRENCE HARRIS AND TANNA HARRIS, HIS WIFE, APPELLANTS
v.
THE BOROUGH OF CENTERVILLE, ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Washington County in the case of Albert Frost and Betty Frost, his wife; Joanne P. Stathers and Lawrence Harris and Tanna Harris, his wife v. The Borough of Centerville, and John Sesco and Mary Sesco, his wife, and Joseph R. Kurilko and Dewey Milich, No. 280 September Term, 1985 A.D.

COUNSEL

Robert N. Clarke, for appellants.

William Crum, Jr., with him, Henry C. Berns, Rothman, Gordon, Foreman & Groudine, P.A., for appellees.

Oliver N. Hormell, for appellee, Borough of Centerville.

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

Author: Palladino

[ 111 Pa. Commw. Page 372]

Albert and Betty Frost, Joanne P. Stathers, and Lawrence and Tanna Harris (Appellants) appeal an order of the Court of Common Pleas of Washington County (trial court), which dismissed their complaint against the Borough of Centerville, Dewey Milich, Joseph R. Kurilko, and John and Mary Sesco (Appellees). We reverse and remand.

Appellants are neighboring property owners of John and Mary Sesco in Centerville, Pennsylvania.*fn1 In April of 1985, the Sescos applied for a building permit in order to construct a storage building and store. Joseph Kurilko, the Borough's zoning officer, issued this permit. Subsequently, the Sescos began to construct on their property a golf driving range, for which no permit was issued.

At a meeting of the Borough Council on July 9, 1985, Appellants expressed their concern about the driving range, which they asserted was in violation of the applicable zoning ordinance.*fn2 The Borough solicitor

[ 111 Pa. Commw. Page 373]

    informed Appellants that the Sescos were using their property in a lawful manner because the property was used commercially prior to the enactment of the zoning ordinance. Appellants allege that the solicitor did not advise them of a right to appeal to the Zoning Hearing Board (ZHB). Appellants' attorney wrote two letters to the Borough Council demanding enforcement of the ordinance, but no action was taken by the Borough.

Appellants then filed a complaint in mandamus and/or trespass in the Court of Common Pleas against the Borough of Centerville and John and Mary Sesco. By leave of court in an amended complaint, Appellants added Dewey Milich, the mayor of Centerville, and Joseph R. Kurilko, the zoning officer, as defendants, alleging that Milich had improperly ordered the zoning officer not to enforce the ordinance.*fn3 Appellants sought enforcement of the relevant zoning ordinance as well as damages for the diminution in property values resulting from the operation of the driving range. The trial court sua sponte raised the issue of subject matter jurisdiction and dismissed the complaint on the grounds that Appellants had failed to file a timely appeal with the ZHB.

The sole question presented for our review is very narrow, namely, whether the trial court erred in dismissing the complaint for lack of subject matter jurisdiction on the basis ...


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