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HomeMy WebLinkAbout2006-4780 Equity L YNNWOOD NESTER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. PIXIE THORNTON and TIMOTHY A. THORNTON NO. 2006 - 4780 CIVIL - EQUITY IN RE: DEFENDANTS' PRELIMINARY OBJECTONS BEFORE OLEK JR., GUIDO, EBERT, JJ. OPINION AND ORDER OF COURT Plaintiff and defendants own lots 2 and 3 respectively in the Sovereign Grace Estates subdivision located in Monaghan Township, York County, Pennsylvania. Plaintiff has erected a dwelling on lot number 2 and resides therein. Defendants, on the other hand, reside at 242 South 15TH Street, Camp Hill, Cumberland County, Pennsylvania. Plaintiff filed this multi-count action in equity alleging that defendants have 1) breached certain building and use restrictions applicable to all of the lots in Sovereign Grace Estates; 2) breached certain provisions of the subdivision plan recorded for Sovereign Grace Estates; and 3) violated Monaghan Township's Storm Water Management Ordinance of 1992. Defendants, acting pro se, have filed preliminary objections alleging lack of subject matter jurisdiction, failure to join Monaghan Township as a necessary party, improper venue, and failure to exhaust statutory remedies. 1 We note that all of the preliminary objections, except for improper venue, involve the count alleging a violation of the Monaghan Township Zoning Ordinance. Defendants 1 Pa. Rule of Civil Procedure 1028 (a)(l)(5) and (7). Defendants have also raised "double jeopardy" which is not a proper preliminary objection under Rule 1028. Rather, it should be raised as New Matter pursuant to Pa. Rule of Civil Procedure 1030. NO 2006 - 4780 CIVIL - EQUITY contend that only the Township may bring an action to enforce its ordinances. Plaintiff points out that a private cause of action is specifically authorized by statute. We agree with plaintiff that the instant action is authorized by Section 10617 of the Municipalities Planning Code. That Section provides in relevant part: In case any land is used in violation of any ordinance enacted under this act or prior enabling laws, the governing body or, with the approval of the governing body, an officer of the municipality, or any aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding to prevent, restrain, correct or abate such use constituting a violation. When any such action is instituted by a landowner or tenant, notice of that action shall be served upon the municipality at least 30 days prior to the time the action is begun by serving a copy of the complaint on the governing body of the municipality. No such action may be maintained until such notice has been given. (emphasis added) 53 P.S. Section 10617. While defendants concede that the above statute creates a private cause of action, they contend that the action cannot be commenced without Township approval. Their reading of the statute is not correct. It is the municipal officer who needs township approval to commence an action not an aggrieved owner or tenant. The latter need only give notice to the township prior to commencing the action. Paragraph 38 of the complaint specifically alleges that such notice was properly given. This is sufficient to survive defendants' preliminary objection. Defendants' next allegation is that the plaintiffs have failed to join Monaghan Township as a necessary party. However, the statute cited above requires only notice to, not joinder of, the township. Defendants have also asked that the instant action be dismissed because of plaintiff s failure to exhaust his statutory remedies. They argue that plaintiff was 2 NO 2006 - 4780 CIVIL - EQUITY required to bring an action in mandamus to require Monaghan Township to enforce its Storm Water Management Ordinance before the instant action could be commenced. However, they have not cited any authority for their position. Furthermore, the above quoted statute does not require an action in mandamus as a prerequisite to filing a private action. Finally, defendants allege that all of the occurrences complained of in the complaint took place in York County. Therefore, they contend that venue in Cumberland County is improper. However, the site of the transactions or occurrences giving rise to the action is only one of the criteria for proper venue. Pa. Rule of Civil Procedure 1006 provides in relevant part: Rule 1006. Venue. Change of Venue An action against an individual may be brought in and only in a county in which (1) the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law, or (2) the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. (emphasis added). Since the defendants reside in Cumberland County, and were properly served at their residence in accordance with Pa. Rule of Civil Procedure 402 (a)(2)(i), venue in this county is proper? 2 Rule 402 provides in relevant part as follows: Rule 402. Manner of Service. Acceptance of Service (a) Original process may be served (1) by handing a copy to the defendant; or (2) by handing a copy (i) at the residence of the defendant to an adult member of the family with whom he resides; In the instant case service was effectuated upon the defendants at their residence by serving a copy on their adult son who resides therein. 3 NO 2006 - 4780 CIVIL - EQUITY ORDER OF COURT AND NOW, this 20TH day of MARCH, 2007, Defendants' Preliminary Objections are DISMISSED. By the Court, Isl Edward E. Guido Edward E. Guido, 1. Harold S. Irwin, III, Esquire Pixie Thornton Timothy A. Thornton :sld 4