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HomeMy WebLinkAbout98-5171 civilHAMPDEN TOWNSHIP, Plaintiff VS. TERRY LEININGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-5171 CIVIL CIVIL ACTION- LAW IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE BAYLEY, HESS AND OLER, JJ ORDER AND NOW, this day of March, 1999, for the reasons set forth in our opinion filed of even date herewith, the preliminary objections of the defendant are SUSTAINED and the plaintiff' s complaint DISMISSED. B Y THE COURT, Richard C. Snelbaker, Esquire For the Plaintiff 4A. Hess, J. Stephen K. Portko, Esquire For the Defendant 'rim HAMPDEN TOWNSHIP, Plaintiff VS. TERRY LEININGER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-5171 CIVIL CIVIL ACTION - LAW IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE BAYLEY, HESS AND OLER, JJ. OPINION AND ORDER This matter is before the court on the preliminary objections of the defendant, Terry Leininger, to the complaint of the plaintiff, Hampden Township. Based on the following discussion, we sustain the defendant's first preliminary objection and dismiss the plaintiffs complaint for failure to state a cause of action. We need not, therefore, address the defendant's second preliminary objection. Defendant operates a motor vehicle repair business in Hampden Township. The Township approved the operation of the business via a land development plan submitted by Linden R. Gates, the defendant's landlord, which plan contained the following condition: All vehicles which are being serviced or repaired and which are left outside over 24 hours at the south west building, currently occupied by Leininger's Automotive, shall be stored within the proposed area enclosed by the 6 foot high fence with slats. Plaintiff's Complaint, p. 2 para. 5. Plaintiff brought a civil enforcement action against the defendant for alleged violations of the specific condition of the land development plan before the appropriate District Justice. Judgment was rendered in favor of the plaintiff for $1000.00 and costs for two violations and 98-5171 CIVIL $500.00 per day for each day's violation effective August 6, 1998. The defendant appealed the judgment and on September 23, 1998, plaintiff, asserting authority under Section 515.3 of the Municipalities Planning Code, 53 P.S. 10515.3 (MPC), filed a complaint alleging that the defendant failed to comply with the condition of the plan. Defendant filed preliminary objections to plaintiff' s complaint asserting that it failed to state a cause of action under Section 515.3 of the MPC, and in the alternative, that it failed to conform to the requirements of the statute. Plaintiff argues that inasmuch as the defendant violated a condition of an approved land development plan, it is authorized by the MPC to seek monetary relief from the defendant. We believe plaintiff' s argument, that Section 515.3 allows a municipality to seek specific damages of $500.00 when a land development plan has been violated, is flawed. While land development plans are authorized under the MPC and Article V of the statute enables municipalities to enact ordinances, it does not necessarily follow that the plan is enforceable under Section 515.3. Section 515.3 specifically states, in pertinent part, as follows' (a) Any person, partnership or corporation who or which has violated the provisions of any subdivision or land development ordinance enacted under this act or prior enabling laws shall, upon being found liable therefore in a civil enforcement proceeding commenced by a municipality, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by the municipality as a result thereof. 53 P.S. Section 10515.3 (emphasis added). 98-5171 CIVIL In determining that the violation of a condition of a plan does not equate to the violation of an ordinance, we resort to well-established principles of construction. The meaning of the statute is determined first by asking if it is clear and unambiguous and, if so, reading its provisions in accordance with their plain meaning and common usage. Only when a statute is unclear should the court attempt to ascertain the intent of the legislature. Com. v. Bell, 512 Pa. 334, 340, 516 A.2d 1172, 1175 (1986); See also 1Pa. C.S. §1921 (b). The Supreme Court has noted that the ultimate principle of statutory interpretation must be that every word in the statute was used by the legislature for a reason and not to be considered surplusage. Fisher v. Dep't. of Public Welfare, 509 Pa. 164, 169, 501 A.2d 617, 619-20 (1985). It is a well-established principle that the plain words of a statute may not be disregarded under the pretext of pursuing a perceived spirit of the statute. Borough v. Pa. Labor Relations Board, 692 A.2d 253 (Pa. Commw. Ct. 1997). Here, the language of the statute is clear in that the legislature used the term "subdivision or land development ordinance" when referring to what must be violated in order to prompt the enforcement remedies under Section 515.3. Therefore, we will not look behind the unambiguous language of the statute and apply the statute to a violation of a land development plan. Our conclusion finds support in the limited case law available on this issue. In Com. v. Marcus, the defendants failed to comply with conditions in the approved building permit and site plan and later failed to comply with an enforcement notice demanding that the conditions be fulfilled. 690 A.2d 842, 845 (Pa. Commw. Ct. 1997). The court authorized the filing of a complaint for money damages pursuant to Section 617.2 of the MPC, which utilizes language very similar to that of Section 515.3. The court had no difficulty in allowing the complaint to 98-5171 CIVIL proceed due to the existence of a township ordinance that makes "any person who constructs a building in violation of an approved permit or plan ... liable for fines and penalties not exceeding $1000 for each day of the violation." Id. at 845-46. Therefore, although the Marcus court allowed the plaintiff to seek monetary damages in that case, our facts are distinguishable in that plaintiff can point to no ordinance that has been violated. Our holding does not foreclose the possibility of relief. Section 515.1 of the Municipalities Planning Code provides expressly that actions by law or in equity may be instituted to "abate violations." 53 P.S. 10515.1(a). In order to invoke the remedies sought in this case, however, an ordinance must have been violated. This is clearly not the case here. ORDER AND NOW, this day of March, 1999, for the reasons set forth in our opinion filed of even date herewith, the preliminary objections of the defendant are SUSTAINED and the plaintiff's complaint DISMISSED. BY THE COURT, Richard C. Snelbaker, Esquire For the Plaintiff 7'~' SS, J Stephen K. Portko, Esquire For the Defendant :rlm HAMPDEN TOWNSHIP, PLAINTIFF Vi TERRY LEININGER, DEFENDANT · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·98-5171 CIVIL TERM Bayley, J., concurring:-- I write separately because I believe that the reasoning in Commonwealth v. Marcus, 690 A.2d 842 (Pa. Commw. 1997), mandates that plaintiff's complaint must be dismissed. In Marcus, the landowner submitted an application to Abington Township in Montgomery County for a building permit to construct a single-family dwelling. Attached to the site plan were fourteen grading and erosion measures. The Township approved the application and the site plan subject to the grading and erosion measures. A temporary certificate of occupancy was issued that set four items that had to be completed pursuant to the conditions of the approval of the application and site plan. When the Marcuses did not comply with those conditions the Township issued a citation for violatinq its zoninq ordinance for constructing a building in violation of an approved permit or plan. The ordinance was enacted pursuant to the Pennsylvania Municipalities Planning Code (MPC), at 53 P.S. Section 10617, which provides: (a) Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of any zoning ordinance enacted under this act or prior enabling laws shall, upon being found liable therefor in a civil enforcement proceeding commenced by a municipality, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by a municipality as a result thereof. (Emphasis added.) The Marcuses were convicted before a District Justice and fined $1,000 and costs. On appeal, the trial court found that the Marcuses had failed to comply with the conditions of the site plan in violation of the Township zoning ordinance and imposed a fine of $3,900:$1,000 for the first day of violation plus $100 for each additional day of the violation. On appeal to the Commonwealth Court, the order of the trial court was affirmed on the basis that the evidence supported a violation of the Township zoning ordinance that required that all work must conform to the approved building permit and site plan. In the case sub judice, Hampden Township avers in its complaint: Section 515.3 of the Pennsylvania Municipalities Planning Code (53 P.S. § 10515.3) is authority for seeking judgment herein against Defendant for $500.00 for each day's violation plus all court costs, including Plaintiff's reasonable attorney's fees incurred in these proceedings. (Emphasis added.) The MPC at 53 P.S. Section 10515.3(a) tracks the same language used in Section 617. Any person partnership or corporation who or which has violated the provisions of any subdivision or land development ordinance enacted under this act or prior enabling laws shall, upon being found liable therefor in a civil enforcement proceeding commenced by a municipality, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by the municipality as a result thereof. (Emphasis added.) Unlike the facts in Marcus where the Township had an ordinance that prescribed penalties for a violation of an approved permit or plan as allowed by Section 617 of the MPC, Hampden Township acknowledges that it does not have an ordinance as allowed by Section 513.3(a) of the MPC that prescribes penalties for -2- failure to comply with the conditions in a land development plan. Therefore, because the Township has not alleged that defendant has violated the provisions of a Township ordinance, Section 515.3 of the MPC is not authority for independently seeking a penalty against defendant for an alleged violation of the conditions set forth in a land development plan. Oler, J., dissents -3-