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Barbara J. Bell v. Township of Spring Brook

September 28, 2011

BARBARA J. BELL, APPELLANT
v.
TOWNSHIP OF SPRING BROOK, PENNSYLVANIA



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Submitted: February 18, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION BY JUDGE McCULLOUGH

Barbara J. Bell (Bell) appeals from the September 7, 2010, order of the Court of Common Pleas of Lackawanna County (trial court) granting the preliminary objections of the Township of Spring Brook (Township) to a complaint filed by Bell which sought to compel the Township to investigate, review, address and, where appropriate, enjoin and/or prohibit zoning code violations on a neighboring property. We now affirm in part and reverse and remand in part.

Bell is the owner of approximately twenty-three acres of real property located in Spring Brook Township, Lackawanna County, Pennsylvania.*fn1 John and Ann Millan own property immediately adjacent to Bell's property and the properties share a common boundary line. In 1980, the Township enacted the Spring Brook Township Lackawanna County Zoning Ordinance (1980 Ordinance).*fn2 However, in 1991, the Township passed a resolution declaring the 1980 Ordinance to be invalid and resolving to revise the 1980 Ordinance in its entirety. The Township did not enact the Spring Brook Township Lackawanna County Revised Zoning Ordinance until 1996 (1996 Ordinance). Under the 1996 Ordinance, the Bell and Millan properties are zoned R-1 Residential. (R.R. at 1-18, 546.)

In 1995, John Millan (Millan) acquired sole ownership of Jake Millan Blacktopping Inc. (Millan Blacktopping).*fn3 In conjunction with the operation of this business, Millan regularly parked a dump truck and backhoe on his property. In May 2004, the Township granted Millan a building permit for construction of a sixty-by-eighty-foot garage on the property. Around the same time, Millan obtained a certificate of non-conformance from the Township relating to the use of the garage for parking and storage of equipment, noting that the use existed prior to the effective date of the 1996 Ordinance. (R.R. at 18, 141-42.)

In July 2005, Bell filed a complaint naming the Township, the Millans, and Millan Blacktopping as defendants.*fn4 In the complaint, Bell set forth numerous causes of action, including negligence, fraud, and negligent misrepresentation against the Township and a claim of nuisance against the Millans and Millan Blacktopping.

Essentially, Bell was attempting to challenge the Township's issuance of the building permit and certificate of non-conformance to Millan. In response to this complaint, the Millans and Millan Blacktopping averred that their use of the property in conjunction with the family paving business predated the enactment of the 1996 Ordinance. (R.R. at 105-30, 659-70.)

Following substantial discovery by the parties, the Township filed a motion for summary judgment alleging that: it was statutorily immune from suit; the complaint constituted an untimely land use appeal; the permit was properly issued; and the use pre-dated the 1996 Ordinance and, hence, was a permitted, non-conforming use. The Millans and Millan Blacktopping joined in the Township's motion. By order dated November 5, 2008, the trial court granted the Township's motion, concluding that the Township was immune from suit, that Bell's complaint equated to an untimely land use appeal, that the use of the property was a permitted, non-conforming use, and further concluding that Bell's claim of nuisance lacked factual or legal support. (R.R. at 541-69.)

In April 2009, Bell filed the present complaint naming the Township as the sole defendant.*fn5 In this complaint, Bell alleged that Millan's current use of the property has significantly exceeded the prior, non-conforming use such that Millan was required to obtain a special exception from the Township. Bell sought an order from the trial court compelling the Township to investigate the purported zoning code violations and compelling Millan to discontinue commercial operations on the premises and remove any offending materials or equipment. (R.R. at 15-34, 316.)

In response to this complaint, the Township filed preliminary objections in the nature of a demurrer seeking to dismiss the matter based upon the principles of res judicata, collateral estoppel, and/or law of the case. Citing Bell's 2005 complaint, the Township asserted that Bell was again challenging its issuance of the certificate of non-conformance to Millan. The Township also sought to strike Bell's complaint for failure to join the Millans as indispensable parties. The Township asserted that the Millans were indispensable parties because their property and due process rights would be affected if the trial court granted Bell's prayer for relief without allowing them to be heard. (R.R. at 365-71.)

Bell filed preliminary objections in response to the Township's preliminary objections alleging that, because her 2009 complaint did not set forth in detail the essential facts and issues pleaded in her 2005 complaint, the affirmative defense of res judicata must be raised as new matter in a responsive pleading and not by preliminary objection. Bell further alleged that the 2005 and 2009 complaints did not involve the same issues and that the causes of action in the respective complaints were fundamentally different. (R.R. at 570-81.)

By order dated September 7, 2010, the trial court granted the Township's preliminary objections concluding the doctrine of collateral estoppel required dismissal of Bell's most recent complaint and the denial of her preliminary objections. The trial court explained that the relevant facts and issues in the present matter were identical to those previously raised by Bell, i.e., the Millans are in violation of the Township's Ordinance. The trial court also indicated that Bell sought the same relief in both actions, the cessation of all commercial activity on the Millans' property, that Bell and the Township were parties in both actions, and that Bell had a full and fair opportunity to litigate the underlying issues in the prior action.*fn6 (R.R. at 97-104.)

On appeal to this Court,*fn7 Bell argues that the trial court erred in failing to conclude that the Township improperly raised the issues of res judicata and collateral estoppel by preliminary objection. Rather, Bell asserts that the Township was required to raise this issue ...


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