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Geschwindt v. Wagner

July 16, 2010

RICHARD L. GESCHWINDT AND MAUREEN T. GESCHWINDT, APPELLANTS
v.
DENNIS G. WAGNER, MELISSA M. WAGNER, H/W AND R.D. CONTRACTING, INC.



The opinion of the court was delivered by: Senior Judge Flaherty

Argued: May 18, 2010

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Appellants, Richard L. Geschwindt (Husband) and Maureen T. Geschwindt (Wife) appeal from an order of the Court of Common Pleas of Berks County (trial court) which denied Appellants' motion for post trial relief taken from the order granting the motion for directed verdict filed by Dennis G. Wagner and Melissa M. Wagner, collectively (Wagner) and R.D. Contracting, Inc. (R.D.). We affirm.

Appellants own a home located at the corner of Noble Avenue and Reber Street in Shoemakersville Borough. Appellants' property is divided into a residence with a front door on Reber Street and a law office, which has an entrance on Noble Avenue.*fn1 The property is zoned R-1 Low Density Residential.

The Wagner home is also located in Shoemakersville Borough at 212 7th Avenue. The distance from the Wagner residence to Appellants' residence is seventy feet. Both residences back into the same alley, Sixth Lane.

In January of 2005, Wagner obtained a zoning permit to erect a 720 square foot accessory building (garage). Thereafter, in June of 2005, a zoning enforcement notice was issued to Wagner regarding the location of the garage being within 15 feet of the western property sideline and indicating that such was in violation of the Zoning Ordinance. Wagner appealed the enforcement notice and, in the alternative, requested a variance. The first two hearings were continued. At the next hearing, which was scheduled for September 29, 2005, the zoning officer failed to appear and the Board granted Wagner's appeal and determined that Wagner's request for a variance was moot, inasmuch as the zoning action had been dismissed. The Board later issued an opinion in support of its decision and no appeal was taken therefrom.

In June of 2006, Appellants filed the complaint at issue with the trial court alleging a private enforcement action pursuant to Section 617 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10617. Section 617 of the MPC provides in pertinent part:

In case any building, structure . is, or is proposed to be, erected, constructed . or used in violation of any ordinance . any aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation . may institute any appropriate action or proceeding to . correct or abate such building, structure .. (Emphasis added.)

Appellants alleged that Wagner's garage violates setback requirements and sought to have it removed. Appellants also alleged that Wagner was operating R.D. from his home in violation of the Ordinance, as such does not qualify as a home occupation. Appellants requested that Wagner be ordered to cease and desist from operating R.D. at the home and to cease parking R.D. vehicles in the vicinity of the home. Appellants later filed an amended complaint and Wagner filed an answer with counterclaims, to which Appellants replied with new matter. Wagner, thereafter, filed a motion for summary judgment, which the trial court denied.

After a non-jury trial, Wagner filed a motion for directed verdict. The trial court granted the motion, concluding that Appellants did not meet their burden of proving that they were substantially affected by Wagner's garage and business. As to the garage, the trial court found that Appellants objected to it based on aesthetic reasons. Concerning the operation of R.D. from Wagner's home, the trial court determined that Appellants failed to prove that the business functions had any impact on the neighborhood. Additionally, there was no evidence that R.D. vehicles were at the Wagner home other than for short periods of time. This appeal followed.*fn2

Initially, Appellants allege that the trial court erred in granting Wagner's motion for directed verdict on the basis that Appellants lacked standing, inasmuch as Wagner waived the issue of standing because it was not pled as new matter.

Pa R.C.P. No. 1030, entitled "New Matter" provides in pertinent part:

(a) Except as provided in subdivision (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of ...


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