Submitted: November 4, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI,
HANNAH LEAVITT, President Judge
and Janet Soppick appeal an order of the Court of Common
Pleas of Montgomery County (trial court) directing them to
pay $130, 500, plus costs and interest, as a penalty for
building a garage that did not conform to their building
permit, in violation of the Borough of West
Conshohocken's Zoning Ordinance. The Soppicks contend that
the Borough could not seek civil penalties while their appeal
of the Borough's Stop Work Order was pending. When the
Soppicks lost their appeal, they dismantled the garage.
Concluding that the Borough lacked authority to seek a
penalty while the Soppicks appealed the judgment that they
violated the Borough's Zoning Ordinance, we reverse.
Soppicks own property located at 209 Moir Avenue in the
Borough of West Conshohocken. In 1996, the Soppicks applied
for a building permit to construct a detached, one-story
garage on the property, and it was granted. In April 1999,
the Borough's Zoning Officer did an inspection and
discovered that the Soppicks were constructing an attached,
two-story garage, in violation of the Borough's Zoning
Ordinance, Building Code, and their permit. On April 23,
1999, the Zoning Officer issued a Stop Work Order under
Section 113-131 of the Zoning Ordinance instructing the
Soppicks to "cease work immediately on any further
construction" and advising that failure to do so would
result in daily fines. Reproduced Record at 9 (R.R. __). The
Stop Work Order, a one-page letter from the Borough's
Zoning Officer, cited the Borough's Construction Codes
and the Building Officials and Code Administrators
International (BOCA) National Building Codes/1996. The Stop
Work Order advised the Soppicks that they had the right to
appeal to the Zoning Hearing Board.
Soppicks appealed the Stop Work Order. Four years later, on
June 11, 2004, the Zoning Hearing Board denied the
Soppicks' appeal, stating:
The garage represents an extension of the present
nonconforming use of the subject property in excess of that
permitted by the Borough Code, is in excess of the dimensions
described in the Application for Building Permit which was
approved by the Borough Building/Zoning Officer, is a
two-story [structure] … and is attached to the
existing structure, rather than detached as was described in
the plans and representations made by the Soppicks prior to
the approval of the permit.
R.R. 12. The Soppicks appealed the decision of the Zoning
Hearing Board, and the trial court affirmed by order of
February 21, 2007. The Soppicks appealed the trial
court's order to this Court.
19, 2007, while the Soppicks' appeal was pending with
this Court, the Borough notified the Soppicks of its intent
to enforce the trial court's order. Its letter stated, in
relevant part, as follows:
As you are aware, the Court of Common Pleas of Pennsylvania
issued an Order dated February 21, 2007. That Order
affirmed the West Conshohocken Zoning Hearing Board's
denial of your zoning application. A copy of said Order
is attached for your review.
In accordance with Section 37-24 of the Borough Code,
are hereby fined $300.00. Every day that this violation
continues constitutes a separate offense punishable by a fine
R.R. 56 (emphasis added). When the Soppicks neither paid the
fine nor corrected the violation, the Borough filed a
complaint. On October 4, 2007, a magisterial district judge
entered a judgment on the Borough's complaint against the
Soppicks and imposed a penalty of $7, 038.50 which the
November 23, 2007, the Borough filed a complaint against the
Soppicks in the trial court, seeking penalties in the amount
of $47, 100. The Borough's complaint stated that it
obtained declaratory judgment from [the trial court]
upholding the June 11, 2004 decision of the Borough's
zoning hearing board which held that the [Soppicks] violated
Borough Code Sections 37-5C and 37-7C and former building
code section[s] 111.2 and 111.3.
Certified Record (C.R.) Item No. 3 at 5. The complaint
alleged that the Soppicks' illegal garage exposed them to
a daily fine of $300.
February 19, 2008, this Court affirmed the trial court's
decision, concluding, in part, that the Borough was justified
in issuing the Stop Work Order pursuant to Section 113-131 of
the Borough's Zoning Ordinance because the Soppicks'
garage was a "building or structure … erected
… in violation of this chapter, " i.e.,
the Zoning Ordinance Chapter of the Borough Code. Soppick
v. Zoning Hearing Board of West Conshohocken, (Pa.
Cmwlth., No. 531 C.D. 2007, filed February 19, 2008)
(unreported). On August 27, 2008, the Soppicks removed the
garage. The Borough's pursuit of penalties continued.
2011, the Borough filed an amended complaint seeking $130,
500 to penalize the Soppicks for having a garage that
violated the Zoning Ordinance for a period of 435 days. The
Borough measured this period from the date it sent the
enforcement notice to the Soppicks, i.e. June 19,
2007, to the date the Soppicks removed the garage,
i.e., August 27, 2008.
February 6, 2012, the Borough filed a motion for summary
judgment. By order dated July 13, 2012, the trial court
granted the motion and entered judgment against the Soppicks
in the amount of $130, 500, plus interest and costs. On July
18, 2012, the Soppicks filed a motion for reconsideration and
for an extension of time to file a response to the
Borough's motion for summary judgment. The trial court
granted reconsideration and dissolved its order of July 13,
2012. After the Soppicks responded to the Borough's
motion for summary judgment, the trial court again ordered
the Soppicks to pay a penalty of $130, 500 plus costs and
interest. The Soppicks now appeal to this
appeal, the Soppicks raise one issue. They contend that the
trial court erred because their appeal of the Stop Work Order
and underlying Zoning Ordinance violation precluded the
Borough from seeking penalties until their appeal failed.
They make this argument under Section 617.2(a) of the
Municipalities Planning Code (MPC),  53 P.S.
§10617.2(a). The Borough responds that Section 617.2(b)
of the MPC, ...