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City of Reading v. Firetree

August 18, 2009

CITY OF READING
v.
FIRETREE, LTD. AND ORANGE STONES CO., APPELLANTS



The opinion of the court was delivered by: Bernard L. McGINLEY, Judge

ORDER

AND NOW, this 18th day of November, it is ORDERED that the above-captioned opinion filed August 18, 2009 shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

JUDGE McGINLEY

Orange Stones and Firetree, Ltd. (Orange Stones) appeal from the order of the Berks County Court of Common Pleas (trial court) entered on October 7, 2008, which granted the request of the City of Reading (City) for a continuance of the hearing on its motion for a preliminary injunction.

On August 8, 2008, Orange Stones purchased a building located at 1711 Hampden Blvd. Soon thereafter, it began to move its equipment into the building and conduct business operations.

City's Enforcement Notice

On August 15, 2008, the City's Building/Fire Code Board (Board) issued an Enforcement Notice/Cease of Operation Order because Orange Stones' activities were in violation of various Sections of the City's Zoning Ordinance and the International Building Code*fn1 pertaining to changes in use or conditions of the building. According to the notice, Orange Stones was required to obtain a "zoning permit" and a new "certificate of occupancy" due to the change in ownership of the property. The Notice informed Orange Stones that it had 10 days to appeal the order.

Orange Stones' Appeal to the ZHB

On August 18, 2008, Orange Stones appealed the ruling of the Board and alleged "the property has a certificate of occupancy, and there has been no change in the occupancy classification of the building. Therefore a new certificate of occupancy is not required." Reproduced Record (R.R.) at 22. The appeal was apparently stayed and is currently pending before the ZHB. R.R. at 43.

City's Complaint and Motion for Preliminary Injunction

On September 10, 2008, the City filed a complaint and a motion for immediate preliminary injunction against Orange Stones seeking to restrain it from operating its business on its property. The City alleged that Orange Stones violated the City's zoning ordinance and failed to obtain a proper zoning permit and certificate of occupancy. See Section 110.1 Use and Occupancy of the 2006 International Building Code which provides: "[n]o building or structure shall be used or occupied, and no change in the existing classification of a building or structure or portion thereof shall be made until the building official has issued a certificate of occupancy therefore as provided herein." The City alleged that Orange Stones "ignored Plaintiff's (City) attempts to require the proper zoning permit and certificate of occupancy." Motion for Immediate Preliminary Injunction at ¶3.

Trial Court's September 17, 2008, Temporary Injunction

The trial court scheduled a hearing. Orange Stones responded with preliminary objections. At the September 17, 2008, hearing, the City asked the trial court to enter a temporary order against Orange Stones to prohibit it from conducting any "business activity" on the premises until the hearing. The trial court heard from the City an offer of proof from three witnesses it intended to call. Specifically, the City proffered the testimony of Cynthia Sopka, the Zoning Administrator of the City of Reading. She was prepared to testify that she posted the premises with a stop work order and subsequent to that she observed business related activities being conducted. City Councilman Marmarou was prepared to testify that he was at the premises and it appeared to him that there were people on the phone, operating computers and sitting behind desks. Last, the City indicated that a "Mr. Thomas" would testify that he saw people inside the premises on the phones and at computers. Transcript of Proceedings (Tr.), September 17, 2008, at 8-9; R.R. at 139-140.

Edward Cox, the president of Orange Stones, was prepared to testify that "Orange Stones Company is not conducting any of the company's business on the property except maintenance and preparatory activity. There are employees there. They may be there on a regular basis and they are going . [to] move some things in now and then. They are not regularly conducting business activity out of that premises." Tr. at 15-16; R.R. at 141. Counsel for Orange Stones represented to the trial court that no business activity was being conducted, but conceded that the company was "getting the property ready." Tr. at 13; R.R. at 141.

After hearing the arguments and proffers of testimony and because Firetree, Ltd., one of the defendants, had not been properly served, the trial court ordered Orange Stones not to use the premises in the interim for any regular business related activities and allowed Orange Stones to use the premises for preparatory work.*fn2

The trial court ordered that the parties conduct limited expedited discovery, temporarily prohibited Orange Stones from conducting business on the premises, and continued the hearing for October 7, 2008:

AND NOW, this 17th day of September, 2008, the hearing on the City's request for preliminary injunction is hereby continued to Tuesday, October 7th, 2008 at 1:30 p.m. in Courtroom 7B of the Berks County Courthouse, Reading, Berks County, Pennsylvania.

It is additionally ordered that each side can conduct up to three depositions of opposing witnesses prior to that date.

It is further temporarily ordered that Defendant, Orange Stones Company, shall not use said premises for any regular business related activities including either as an office, base office, satellite office or the like. Defendant may do preparatory work upon said premises. (Emphasis added).

October 7, 2008, Hearing Continued

The parties convened before the trial court on October 7, 2008, as scheduled. Orange Stones had conducted the deposition of Cynthia Sopka, the City's Zoning Administrator. The City had conducted no depositions prior to the hearing. The City requested to continue the hearing until December 2, 2008. Orange Stones objected to the continuance and was prepared to proceed with the hearing.

Orange Stones prepared a trial brief and stated three reasons why the motion for injunction should be denied (1) the enforcement notice was defective; (2) no zoning permit was required; and (3) no certificate of occupancy was required.

The City also prepared a trial brief in support of its motion for preliminary injunction. The City cited law which held that "a zoning permit shall be valid until such time as there is a change in . owner." The City argued that a new zoning permit is ...


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