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LOWER FREDERICK TOWNSHIP v. CURTIS CLEMMER AND JUNE V. CLEMMER HIS WIFE (05/20/88)

decided: May 20, 1988.

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



Appeal from the Order of the Commonwealth Court of Pennsylvania dated October 20, 1986 at No. 1820 C.D. 1985, vacating the Order dated June 25, 1985, in the Court of Common Pleas of Montgomery County, Pennsylvania, Civil Action No. 81-19826. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Stout, J., did not participate in the consideration or decision of this case. McDermott, J., concurred in the result. Flaherty, J., filed a dissenting opinion in which Nix, J., joined.

Author: Larsen

[ 518 Pa. Page 316]

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Appellant Lower Frederick Township (Township) appeals from an order of the Commonwealth Court reversing a decree of the Common Pleas Court of Montgomery County that directed appellees, Curtis Clemmer, June V. Clemmer (Clemmers) and Dawn Lenore Kratz to demolish and remove a building on their property, and ordered the Clemmers to pay the sum of $36,000 as damages, fine and civil penalty for violations of municipal ordinances. The Township raises three principal questions: (1) whether the appellee, Dawn Lenore Kratz, was properly joined as an additional defendant and therefore, within the jurisdiction of the court; (2) whether the lower court order directing appellees to demolish the "residential structure" under construction on their property was within the power of the court to order; and (3) whether a court sitting in equity may impose damages, fine and penalty for violations of municipal ordinances. The Commonwealth Court held that Dawn Lenore Kratz was not properly joined; that the lower court did not have the authority to order the residential shell demolished; and that the lower court lacked the authority to impose damages, fine and civil penalty for local ordinance violations. 101 Pa. Commw. 341, 516 A.2d 412. We disagree with the conclusions of the Commonwealth Court; therefore, we reverse.

Background

In early September of 1979, it came to the attention of the appellant Township that, without first obtaining a building permit, appellee Curtis Clemmer had commenced construction of a building on certain property owned by him and his wife June. The Clemmer property is located on Gravel Pike in Lower Frederick Township in an R-2 zoning district. The R-2 zoning classification permits one principal single

[ 518 Pa. Page 317]

    family use and accessory uses. At the time building began, the Clemmers already had their principal family residence on the property. Shortly after learning of the construction activity, the Township notified Mr. Clemmer, in writing, that he was violating the Township building code. He was informed that all construction work must cease forthwith.

On September 24, 1979, the Clemmers applied for and received a building permit. The permit called for construction of a one-story, one room "shell only," to be used as a storage facility.*fn1 As construction of the "shell only," proceeded, it became apparent from the size and shape of the structure that its final intended use was more likely to be a residential dwelling rather than a storage shed. In a letter dated February 19, 1980, the Township notified the Clemmers that if they intended to use the structure as a residence, it was necessary for them to comply with the applicable subdivision ordinance. The Township requested that all construction stop immediately and that the Clemmers take the steps required to obtain complete subdivision approval. The Clemmers ignored the Township's notice and request, and continued with construction of the building.

Responding to the Clemmers' apparent disdain for the law, the appellant Township, on November 4, 1981, filed a complaint in equity and a motion for a preliminary injunction against appellees, Curtis and June Clemmer. In its lawsuit, the Township sought the following relief: (a) that the Clemmers be ordered to cease and desist from violating the Township ordinances; (b) that the Clemmers be ordered to remove, alter or take down the building under construction; (c) that the Township be awarded just and proper damages; and (d) that the Township be granted such other and further relief as is deemed just and reasonable.*fn2 On

[ 518 Pa. Page 318]

January 28, 1982, the court conducted a hearing on the Township's request for a preliminary injunction. The court granted the preliminary injunction sought, and entered the following order:

Order

AND NOW, this 2nd day of February, 1982, following the hearing held in open court on January 28, 1982, Plaintiff Lower Frederick Township's Motion for Preliminary Injunction is GRANTED and it is ORDERED AND DECREED that Defendants Curtis H. Clemmer and June V. Clemmer shall be and are hereby enjoined from further construction, building or work whatsoever on the structure which is the subject of the within action and shall make no use or occupancy thereof except as a shell for storage until further ORDER of this COURT.

This action may be listed for further hearing and for hearing on permanent injunction at the request of either party. THIS COURT will retain jurisdiction for the enforcement or modification of this ORDER.

On March 7, 1983, the Township filed a motion for a hearing on its request for a permanent injunction and its demand for other relief. A hearing was set for April 27, 1983. At the time of the scheduled hearing, the parties conferred and negotiated an agreement. On April 29, 1983, the terms of that agreement were placed on the record. Eventually, those terms were incorporated into a consent decree and order of court dated June 20, 1983. The consent decree and order provided as follows:

DECREE AND ORDER

AND NOW, this 20th day of June, 1983 following presentation in open Court on April 29, 1983 and the filing of a transcription of the agreement of the parties on or about May 24, 1983, the agreement is approved and the Order of Court is made permanent, as follows:

[ 518 Pa. Page 3191]

. Defendants agree to apply for subdivision approval and a variance, if necessary. The Defendants will apply for subdivision approval on or before May 29, 1983.

The Defendants will also apply for a percolation test and if the results from the percolation test are satisfactory to the Defendants, they will then process a three-lot subdivision for two existing dwellings and a third lot to convert the storage building to a residence. If the results of the percolation test are not satisfactory to the Defendants, they will then apply for a two-lot subdivision for the two existing dwellings with the storage building remaining on the same lot with the closest existing dwelling.

2. In the event of denial of any application of Defendants, they shall have the right of appeal as provided by law before such denial shall be final.

3. In the event the storage building is to remain for storage only as becomes required under the provisions above, Defendants shall have only two doors on the outside thereof except existing garage doors and all others including, in any event, the door on the front toward the road shall be permanently closed and covered. All windows except one in front and one on each of three floors on both sides and the back shall be permanently closed and covered on or before June 28, 1983. Interior partitions except bearing walls will be removed.

4. If the three lot subdivision is approved for ultimate use of the storage building as a single family residence, Defendants will obtain new building permit therefor.

5. Under any circumstances, the steps and sidewalks presently existing at or about the storage building may remain but all construction or work upon said building must be completed within two (2) years of final subdivision approval.

On March 19, 1984, the Township filed a petition for further interim relief and a final decree. In that petition the Township averred that the Clemmers violated and continued to violate the ordinances, rules and regulations of

[ 518 Pa. Page 320]

Lower Frederick Township and prior orders of court, including the consent decree and order of June 20, 1983. The Township alleged that the violations involved: (a) the Clemmers building a dormer window or windows on the subject building; (b) the failure to complete, in good faith, an application for sub-division approval and a variance, if necessary; (c) the failure to limit the number of doors and windows as ordered and the failure to permanently close and cover the existing doors and windows as required; (d) the failure to take action necessary to bring their property in compliance with subdivision and zoning ordinances and regulations as required by law; and (e) the failure to act in accordance with other Township ordinances, rules and regulations and the requirements of orders of the court. The Township asked the court, inter alia, to enforce its prior orders and to order the removal, alteration or demolition of the building under construction or any part thereof found to be in violation.*fn3

The Clemmers filed an answer to the petition in which they denied any violations of the ordinances and regulations of Lower Frederick Township or of prior orders of court. Additionally, the Clemmers, in new matter, averred that on January 9, 1984, they had transferred the subject premises to their daughter, Dawn Lenore Kratz.

On April 18, 1984, a hearing was held on the Township's petition. In that hearing the court found that Curtis Clemmer was in violation of the Court's previous orders. However, since Dawn Lenore Kratz had not been joined as a party to the action, the court delayed adjudication until Ms. Kratz had been given an opportunity to be heard. The court directed that Dawn Lenore Kratz be joined as an indispensable party.

Pursuant to the court's direction, the Township brought a petition to join Dawn Lenore Kratz as an additional party. A rule was issued upon Ms. Kratz and the Clemmers to show cause why the Township's petition should not be

[ 518 Pa. Page 321]

    granted. A copy of the petition and rule along with copies of all pleadings filed in this action were served on appellee, Dawn Lenore Kratz. A hearing was scheduled for May 16, 1984. Although Ms. Kratz had been served with a copy of the petition and received notice of the hearing, she did not appear. By order dated May 16, 1984, Dawn Lenore Kratz was joined as an additional defendant. With Ms. Kratz joined as a party, the court went on to make findings of fact and conclusions of law. Consistent with its findings and conclusions, the court entered a decree nisi as follows:

DECREE NISI

AND NOW, this 23rd day of August, 1984, in consideration of the foregoing, the Court hereby enters the following Order:

(a) Defendants, joint and severally and/or Additional Defendant are ordered and directed to demolish, tear down, remove and haul away all debris of the building known as and referred to as the so called "shell for storage" upon the property at Gravel Pike, Lower Frederick Township, Montgomery County, Pennsylvania, and all parts thereof, including basement or foundation thereof, and shall thereafter grade and restore the surface of the land at their own cost and expense within thirty (30) days.

(b) Defendants shall pay to Plaintiff as damages, fine and civil penalty for violation of Ordinances the sum of $100 per day since May 29, 1983 until June 1, 1984, or a total of Thirty-Six Thousand, Six Hundred Dollars ($36,600.). Judgment for this sum shall be entered for plaintiff against defendants, jointly and severally, upon praecipe of Plaintiff if not paid within thirty (30) days of this date.

(c) Upon failure of Defendants, either or both of them and/or Additional Defendant to comply with this Decree and Order, Plaintiff may forthwith enter upon the property and do all demolition, grading and ...


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