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HomeMy WebLinkAbout98-6004 civilATHANASIOS C. KATSAOUNIS and IRENE A. KATSAOUNIS, PLAINTIFFS Vo T. MICHAEL BLETZ and KATHI S. BLETZ, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-6004 CIVIL TERM IN RE: DEFENDANTS' PETITION TO RELEASE STAY ORDER AND RETURN BOND AND PLAINTIFFS' MOTION TO JOIN THE BOROUGH COUNCIL OF CARLISLE AS A PARTY OPINION AND ORDER OF COURT BAYLEY, J., January 12, 1999:-- On August 21, 1998, T. Michael Bletz and Kathi S. Bletz applied to the Historical Architectural Review Board of the Borough of Carlisle for a Certificate Of Appropriateness to demolish a detached garage on their premises at 264 West South Street in the Borough of Carlisle, and build a garage attached to their house. On September 1, 1998, the Board recommended that a Certificate Of Appropriateness be granted. On September 10, 1998, the Borough Council of Carlisle issued a certificate of appropriateness. Athanasios C. and Irene A. Katsaounis live at 250 West South Street. On October 13, 1998, they filed a complaint in equity and a petition for a preliminary injunction seeking to restrain the Bletzes from proceeding with demolition of their garage.~ An ex parte injunction was entered conditioned upon the Katsaounises filing a bond in the amount of $2,500, which they did. On October 19, 1998, an order was 1. 98-5838 Equity Term. 98-6004 CIVIL TERM entered that the ex parte injunction issued on October 13th shall expire at 6:00 p.m. on October 19th. On October 20, 1998, in the within case at 98-6004 Civil Term, Athanasios and Irene Katsaounis instituted an action against T. Michael and Kathi S. Bletz titled "Petition for Review of the Issuance of Certificate of Appropriateness by Borough Council of Carlisle to Respondent Bletz." A separate motion was filed "to consider petition for review nunc pro tunc." An order was entered on October 20, 1998, enjoining the Bletzes from demolishing their garage upon the posting of a bond in the amount of $2,500. In this case and the equity case, an order was entered on November 5, 1998, based on the following stipulation which was filed of record in both cases: 1. The bond posted by the Plaintiff/Petitioners to the action in equity shall be transferred to the action at law docketed at 98-6004 Civil Term. By this Stipulation, the parties jointly PRAECIPE the Prothonotary to so transfer the bond. 2. The equity action at 98-5838 Equity Term shall be marked as settled and discontinued. By this Stipulation, the parties jointly PRAECIPE the Prothonotary to so mark the equity action. 3. The parties stipulate that the action at law has been timely filed. The Motion To Consider Petition For Review Nunc Pro Tunc of the Plaintiff/Petitioners shall be withdrawn. By this Stipulation, the parties jointly PRAECIPE the Prothonotary to so mark the Motion. 4. The parties stipulate that the relief requested by the Plaintiff/Petitioners in their Petition for Review shall be addressed in its entirety by jointly remanding the objection of the Plaintiff/Petitioners to the issuance of the Certificate of Appropriateness to the Borough Council of Carlisle, Pennsylvania for reconsideration. 5. The parties stipulated that the Stay issued in the action at law on October 20, 1998, by the Honorable Edgar B. Bayley shall remain in effect pending further Order of Court or written directive -2- 98-6004 CIVIL TERM of the Borough Council. The parties desire that, should the Borough Council so direct, either party may lift the Stay by praecipe to the Prothonotary. The parties further desire that the Bond should only be released upon joint praecipe or Order of Court. 6. The parties stipulate that there shall be no administrative appeal or other judicial review of the action of the Borough Council save as may specifically be provided by both the Council and the parties together. It is intended by this stipulation that neither party be permitted or required to return to the Court of Common Pleas, or any other forum of judicial review, save for the purpose of determining the amount of damages, if any, sustained by reason of granting the Stay. 7. The parties agree that time is of the essence and further agree to take all reasonable steps, in good faith, necessary to assure the efficient and timely resolution of the matter. (Emphasis added.) On November 5, 1998, by stipulation an order was entered remanding this civil case "[t]o the Borough Council for further action." On November 9, 1998, the following took place before the Carlisle Borough Council: Chris Katsaounis speaking on behalf of his parents, Athanasios and Irene Katsaounis, outlined their request that Borough Council reconsider the Certificate of Appropriateness issued by the Historic Architectural Review Board for the construction of an attached garage to the home located at 264 West South Street. The Katsaounis's believe the design and size of this garage is inconsistent with the aesthetic attributes of the Historic District. They are also concerned about the closeness of this structure to their living area and the possibility of noise and other disturbances from this building. Councillor Kronenberg moved to reconsider approval of a Certificate of Appropriateness at 264 West South Street. There being no second, this motion died. On November 16, 1998, the Bletzes filed a petition to lift the stay entered on October 20th and release the $2,500 bond back to the Katsaounises. The petition averred that on November 9, 1998, the Carlisle Borough Council had considered a motion to reconsider granting the certificate of appropriateness to the Bletzes, in that -3- 98-6004 CIVIL TERM the motion "[d]ied for lack of a second." A Rule to show cause was issued against the Katsaounises. The Katasounises filed an answer to the Rule. On November 25, 1998, they filed a motion pursuant to Pa. Rule of Civil Procedure 2232(c) to join the Borough Council of Carlisle as a party in this civil action. Both matters were heard on December 18, 1998. DISCUSSION The Bletzes argue that the stay of their garage project entered on October 20, 1998, should be lifted, the $2,500 bond posted by the Katsaounises should be released to them, and the motion of the Katsaounises to join the Borough Council of Carlisle as a party should be dismissed because (1) this is an improper Local Agency Appeal under 2 Pa.C.S. Section 752, and (2) the stipulation entered as an order on November 5, 1998, precludes further litigation. The Katsaounises argue that (1) this is a proper Local Agency Appeal in which they may join the Borough Council of Carlisle as a party, and (2) further litigation is not precluded by the stipulation of November 4, 1998, because the Borough Council of Carlisle did not address the relief requested in its entirety when the matter was referred back to it for reconsideration. We conclude that this action in which the Katsaounises sued the Bletzes individually is an improper Local Agency Appeal. A proper appeal from the action of the Carlisle Borough Council granting a Certificate Of Appropriateness to the Bletzes on September 10, 1998, would have been to file a Local Agency Appeal in this court pursuant to 2 Pa.C.S. Section 752, that provides: -4- 98-6004 CIVIL TERM Any person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have a right to appeal therefrom to the court vested with jurisdiction of such appeals... See Barrett v. Borough of Carlisle, 45 Cumberland L.J. 367 (1996). The Judicial Code at 42 Pa.C.S. Section 5571 (b), provides: ·.. [a]n appeal from a tribunal or other government unit to a court. ·. must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of [a]... final order. (Emphasis added.) A Local Agency Appeal could have been filed by the Katsaounises, as persons aggrieved by the adjudication, against the Borough of Carlisle from its final order granting the Certificate Of Appropriateness, and the Bletzes could then have intervened. The Pittsburgh Trust For Cultural Resources v. Zoning Board of Adjustment of the City of Pittsburgh, 145 Pa. Commw. 503 (1992). There is no authority that would authorize the Katsaounises to file a Local Agency Appeal against the Bletzes individually and later join the Borough Council of Carlisle as a party. Because this is an improper appeal from which the Katsaounises cannot secure relief, we will deny their motion to join the Borough Council of Carlisle as a party and will grant the petition of the Bletzes to lift the stay order entered on October 20, 1998, and release the $2,500 bond back to the Katsaounises.2 2. This resolution makes it unnecessary to address the second issue raised by the Katsaounises as to the enforceability of the stipulation of the parties which was entered as an order on November 5, 1998. -5- 98-6004 CIVIL TERM ORDER OF COURT AND NOW, this ~ day of January, 1999, IT IS ORDERED: (1) The motion of Athanasios C. Katsaounis and Irene A. Katsaounis to join the Borough Council of Carlisle as a party, IS DENIED. (2) The Rule to Show Cause issued against Athanasios C. Katsaounis and Irene A. Katsaounis, IS MADE ABSOLUTE. The stay order entered on October 20, 1998, IS VACATED. The $2,500 bond posted by Athanasios C. Katsaounis and Irene A. Katsaounis, IS RELEASED TO THEM. Matthew J. Eshelman, Esquire For Plaintiffs Michael R. Rundle, Esquire For Defendants : saa By the Court, ~, '/ B. B Io~,d~~ -6-