The opinion of the court was delivered by: BY Judge Simpson
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge (P) HONORABLE JAMES R. KELLEY, Senior Judge
In this second appeal, Geneva House, Inc. (Geneva) asks whether the Court of Common Pleas of Lackawanna County (trial court) erred in granting summary judgment in favor of Minsec of Scranton, Inc. (Minsec) and dismissing Geneva's zoning enforcement action under Section 617 of the Pennsylvania
Municipalities Planning Code*fn1 (MPC). The trial court determined Geneva lacked standing to bring an enforcement action under Section 617 because it did not prove it was substantially affected by Minsec's alleged unlawful use of its property as a community corrections center.*fn2 Concluding Geneva has standing to bring this enforcement action and material issues of fact exist as to whether Minsec is operating in violation of applicable zoning requirements, we reverse.
I. Factual and Procedural Background
This case has a fairly extensive factual and procedural background. An explanation of that background is necessary.
Geneva owns and operates a high-rise apartment building for the elderly and handicapped at 325 Adams Avenue in the City of Scranton. Iannielli Family L.P. (Iannielli) owns a four-story building at 537-539 Linden Street in the City (subject property).*fn3 Geneva's property adjoins the north side of the subject property.
Minsec leases the upper floors of the subject property. Since 2002, it has used the subject property to operate a community corrections center, which is known as the Wyoming Valley Correctional Center.
Sometime prior to 1982, Iannielli applied for and received permission for a tenant to use the vacant second floor of the four-story structure on the subject property to house an adult mental health/mental retardation (MH/MR) transitional living program. Thereafter, Iannielli obtained a variance to convert the third and fourth floors to the same use by a second tenant. The upper floors remained occupied by various tenants until approximately 1998.
In January 2000, an entity known as Diversified Health Associates, Inc. (Diversified) sought to use the second, third and fourth floors of the subject property as a "specialized living facility ... to be used by the judicial system wherein the [c]court refers persons [with drug or substance abuse problems] for a ninety-day monitoring period." (2000 zoning case). Reproduced Record (R.R.) at 91a; Tr. Ct., Slip Op., 6/29/00, at 2. Diversified filed an application with the City of Scranton Zoning Hearing Board (ZHB), seeking a special exception to re-establish a nonconforming use or, alternatively, seeking a variance. The ZHB denied Diversified's requests.
On Diversified's appeal, the trial court determined the ZHB abused its discretion in denying continuation of a valid nonconforming use. In its decision, the trial court identified the prior nonconforming use as "transitional living spaces on the third and fourth floors of the [subject] property for the MH/MR." R.R. at 97a. The trial court determined Diversified's proposed use, a transitional living space for up to 15 individuals per floor with addiction problems, was sufficiently similar to the prior nonconforming use as a transitional living space for those with mental illnesses. Id. The trial court further determined Diversified could expand the size of the prior nonconforming use, which occupied two floors, to include a third floor. The trial court explained:
It is clear from the testimony that the space on all three floors is identical and no additional major construction work is needed. All three floors have been used in the past for transitional living programs without any apparent objection from the City. [Diversified and Iannielli] now wish to put in a transitional living space for up to 15 males per floor. This current project would be an expansion of the transitional living spaces that once occupied the structure. ... [T]he slight increase in the amount of residents does not prevent the continuation of the nonconforming use.
R.R. at 98a. The trial court also rejected an argument that Iannielli abandoned the prior nonconforming use. No appeal was taken.
Geneva initiated the current enforcement action in August 2004.
Through its amended complaint, Geneva sought an injunction to bar Minsec from operating its community corrections center on the upper floors of the subject property. In count I of the amended complaint, Geneva alleged that Minsec's use of the subject property exceeded the scope of the nonconforming use approved by the trial court in the 2000 zoning case. Geneva averred Minsec's use of the subject property as a "correctional facility" violated Section 306 of the City of Scranton Zoning Ordinance (zoning ordinance). That Section defines permitted uses in the various zoning districts and does not permit a "correctional facility" in the C-D Business district in which the subject property lies. In count II of its amended complaint, Geneva averred Iannielli abandoned its nonconforming use for at least 12 months after the trial court's decision in the 2000 zoning case, and, therefore, the current use of the subject property was required to conform to the zoning regulations for the C-D Business district, which it presently does not.
Minsec and Iannielli filed preliminary objections to Geneva's amended complaint, arguing Geneva lacked standing to sue. Minsec and Iannielli also argued the trial court addressed the issue raised in Geneva's amended complaint in the 2000 zoning case in which the trial court determined Iannielli had a vested nonconforming right that runs with the land.
In 2005, the trial court sustained Minsec's preliminary objections to both counts and dismissed Geneva's suit. Geneva appealed to this Court.
On appeal, Geneva asserted the trial court erred in sustaining preliminary objections where Minsec's use of the subject property violated the zoning ordinance, and where the nonconforming use of the subject property authorized by the 2000 zoning case, was abandoned. In response, Minsec and Iannielli asserted Geneva lacked standing. They also argued the trial court previously decided the issues raised by Geneva in the 2000 zoning case, and the nonconforming use ultimately approved in that case runs with the land.
In November 2006, this Court issued an unreported decision in which we determined Geneva's amended complaint averred sufficient facts to state a claim under Section 617 of the MPC both as to standing and as to the merits. See Geneva House, Inc. v. Minsec of Scranton, Inc., (Pa. Cmwlth., No. 2525 C.D. 2005, filed November 3, 2006) (unreported) (Geneva House I). Thus, we reversed the trial court's order dismissing Geneva's amended complaint and remanded to allow the case to proceed.
After remand, Minsec and Iannielli filed an answer and new matter to Geneva's amended complaint. The case proceeded through a lengthy period of discovery.
In May 2010, Minsec filed a motion for summary judgment again arguing Geneva lacked standing under Section 617 of the MPC because it admitted it did not suffer any actual harm as a result of any alleged violation of the zoning ordinance occasioned by Minsec's facility. Minsec further asserted it was entitled to summary judgment because Geneva did not present any evidence that Minsec exceeded the legal use of the subject property. Minsec also maintained summary judgment was appropriate on count II of Geneva's amended complaint because Geneva's claim constituted an improper collateral attack on the trial court's decision in the 2000 zoning case.
Ultimately, the trial court issued a decision granting Minsec's motion for summary judgment. Specifically, the trial court determined, despite years of discovery, Geneva was unable to articulate any substantial effect that Minsec's operations had or will have on Geneva. The trial court explained:
[Geneva's] unsubstantiated fear of the unknown and of what might happen due to [Minsec's] operations is no different than the concern that might be felt by other neighbors or the general public. The lack of a [Geneva]-specific affect [Minsec's] operations [sic] leaves this Court to find that [Geneva] does not possess the required standing to be an aggrieved party as contemplated under the [MPC].
Tr. Ct., Slip Op., 11/10/10, at 4 (emphasis in original). The trial court noted that, at deposition, Stephen Proctor, Geneva's corporate designee, admitted Minsec's facility did not have any particularized, harmful effect on Geneva's elderly residents. The trial court also stated Proctor admitted he had no evidence that Minsec operated anything other than the approved transitional housing facility or that Minsec exceeded the legal use of the subject property as determined by the trial court in the 2000 zoning case. Geneva again appeals to this Court.
With regard to the applicable standard and scope of review of a decision granting summary judgment, our Supreme Court explains:
This Court's scope of review of an order granting summary judgment is plenary. Our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion. Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment.
The function of the summary judgment proceedings is to avoid a useless trial but is not, and cannot, be used to provide for trial by affidavits or trial by depositions. ... In considering a motion for summary judgment, the lower court must examine the whole record, including the pleadings, any depositions, any answers to interrogatories, admissions of record, if any, and any affidavits filed by the parties. From this thorough examination, the lower court will determine the question of whether there is a genuine issue as to any material fact. On this critical question, the party who brought the motion has the burden of proving that no genuine issue of fact exists. All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment.
Stimmler v. Chestnut Hill Hosp., 602 Pa. 539, 553-54, 981 A.2d 145, 153-54 (2009) (citations ...