HomeMy WebLinkAbout92-903 CivilTHE McNAUGHTEN COMPANY IN THE COURT O COMMON PLEAS OF
t/a MIDPENN HOMES, CUMBERLAND CO TY, PENNSYLVANIA
Plaintiff
V.
UPPER ALLEN TOWNSHIP,
Defendant
CIVIL ACTION -NLAW
NO. 903 CIVIL 11992
BEFORE -HESS and OLER, JJ.
ORDER OF COURT
AND NOW, thistCtL day of August, 1992, upon
the Defendant Township's Preliminary Objections t
Complaint, and for the reasons stated in the accc
the Defendant's Preliminary Objections are DISMIS
granted twenty days within which to file an ans-o
BY THE COURT,
C. Roy Weidner, Esq.
David J. Lanza, Esq.
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Counsel for Plaintiff
Donald M. Lewis, III, Esq.
210 Walnut Street
Harrisburg, PA 17108-1963
Counsel for Defendant
:rc
onsideration of
the Plaintiff's
)anying Opinion,
D. Defendant is
J.
THE McNAUGHTEN COMPANY
t/a MIDPENN HOMES,
Plaintiff
V.
UPPER ALLEN TOWNSHIP,
Defendant
If
IN THE COURT OF gOMMON PLEAS OF
CUMBERLAND COUNT -T, PENNSYLVANIA
CIVIL ACTION -
NO. 903 CIVIL 1992
BEFORE HEgS and OLER, JJ.
OPINION AND ORDER OF COURT
OLER, J.
At issue in the present case are preliminary objections to a
complaint alleging breach of contract filed by the McNaughten
Company, t/a Midpenn Homes (Plaintiff), against Upper Allen
Township (Defendant). The factual allegations c ntained in the
Plaintiff's Complaint are as follows:'
The Plaintiff is the owner and developer �of "Canterbury
Estates," a residential subdivision located ii Upper Allen
Township, Cumberland County, Pennsylvania.2 In S ptember, 1987,
and August, 1989, the Defendant Township granted final subdivision
approval for Phase I and Phase II respectively of Canterbury
Estates; neither approval was conditioned upon the availability of
sewage capacity in the Defendant Township's sewage system.3
Following the Defendant Township's final approval, the Plaintiff
provided a bond for site improvements and investe d a substantial
' By summarizing the facts based upon the a1 egations in the
Plaintiff's Complaint, the Court is expressing no inion as to the
accuracy of those allegations.
s Plaintiff's Complaint, paragraph 3.
3 Plaintiff's Complaint, paragraphs 4, 6, 1 , 12.
No. 903 Civil 1992
amount of money in the installation of streets, cur ing, sanitary
sewers and other similar improvements.°
On June 16, 1988, the Defendant Township enacted Ordinance No.
407, later "amended, restated in its entirety and enacted as
Ordinance No. 409, effective July 1, 1988," which required
developers to pay a "Sewer Reserve Rental Chargellfor building
lots.' The Plaintiff avers that from July 25, 1988 until October
1, 1989, the Defendant Township sent quarterly invoices to the
Plaintiff for these sewer reserve rental charges, ani the Plaintiff
paid these invoices via checks which the Defe dant Township
accepted.b On October 18, 1989, the Plaintiff filed applications
with the Defendant Township for building and sEwer connection
permits for thirteen lots located in Phase II of the Canterbury
Estates project.' Plaintiff further alleges that, on October 31,
1989, it paid the sewer reserve rental charge for the last quarter
of that year with a check which was negotiated by the Defendant
Township.'
On October 31, 1989, the Defendant Township enacted Ordinance
No. 425, which prohibited the issuance of bui ding and sewer
4 Plaintiff's Complaint, paragraphs 4, 7, 13, 14.
' Plaintiff's Complaint, paragraphs 15, 16.
6 Plaintiff's Complaint, paragraphs 18-20.
' Plaintiff's Complaint, paragraph 22.
' Plaintiff's Complaint, paragraph 23.
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No. 903 Civil 1992
connection permits in the area of the Township in which Canterbury
Estates was located, with the exception of lots and buildings under
contract as of October 10, 1989.9 Plaintiff aers that the
Defendant Township refused to issue building and seler connection
permits for the lots in Phase II of CanterburyEstates from
November 17, 1989, until Ordinance No. 425 was repealed on June 11,
1991.10 Furthermore, the Plaintiff alleges that tl e sole reason
offered by the Defendant Township for refusing to issue the
requested permits was a lack of sewage capacity ir the Grantham
wastewater treatment plant."
In January, 1990, the Plaintiff filed an actin in mandamus
against the Defendant Township seeking issuance of the building and
sewer connection permits for the lots in Phase II of Canterbury
Estates. In that action, the Plaintiff did not a lege specific
damages, but did request "such other relief as is deemed necessary
and appropriate under the circumstances."lz
In granting summary judgment for the Defendant Township, Judge
Bayley, for the Court of Common Pleas, held that the: Plaintiff was
improperly using a mandamus action to attack "the' discretionary
9 Plaintiff's Complaint, paragraphs 24, 25.
10 Plaintiff's Complaint, paragraphs 29, 30.
11 Plaintiff's Complaint, paragraph 31.
12 McNaughton Co. v. Witmer, No. 387 Civ. 1991, slip op. at
2-3 (Cumberland Co. 1992).
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No. 903 Civil 1992
authority of the Township to adopt Ordinance No. 425." McNaughton
Co. v. Witmer, No. 387 Civil 1990, slip op. at 5 (Cimberland Co.)
(filed January 15, 1992). Therefore, since the Defendant Township
could not be "adjudged in this action in mandamus t have refused
without lawful justification to issue the subject sewer connection
and building permits, there could be no damages that were
incidental to the relief sought in [the Plaintiff's] complaint."
Id. at 5-6. On appeal, the Commonwealth Court held that, since
Ordinance No. 425 had been repealed, and the Plaintiff had received
the building and sewer connection permits, "that I ortion of the
mandamus which sought the issuance of the permit [was] moot."
McNaughton Co. v. Witmer, No. 266 C.D. 1992, slip op. at 3 (Pa.
Commw.) (filed July 21, 1992). However, since the Defendant
Township could not "defeat [the Plaintiff's] claim or damages by
complying with the demand in the mandamus comp aint for the
permits," the Commonwealth Court proceeded to examine the
Plaintiff's claim for damages incidental to the ma idamus action.
Id. In affirming the Court of Common Pleas, th Commonwealth
Court held that the Plaintiff had no vested rights in the building
and sewer connection permits; therefore, the mandamus action would
have been dismissed if it had been raised before Orte
nance No. 425
was repealed. 13 As a consequence, there could no damages
13 McNaughton Co. v. Witmer, No. 266 C.D. 199 , (Pa. Commw.
Ct. 1992).
4
No. 903 Civil 1992
incident to the Plaintiff's mandamus action."
After commencing the action in mandamus, and lollowing Judge
Bayley's adverse decision, the Plaintiff instituted the present
action on March 9, 1992, alleging that the Defe dant Township
breached its obligation, under Ordinances 407 and 4 9, to allocate
and reserve sewer volume capacity to the Plaintiff.11s As a result
of this alleged breach, the Plaintiff avers that it was incapable
of continuing the development of Canterbury Estates." Damages in
the amount of $406,000.00 have been requested.17
The Defendant Township has filed the follow
objections to the Plaintiff's Complaint: (a)
failure to state a cause of action for breach of cc
a motion to dismiss, or in the alternative, a motic
14 1 d .
15 Plaintiff's Complaint, paragraph 32.
16 Plaintiff's Complaint, paragraph 33.
17 Plaintiff's Complaint, ad damnum clause.
5
g preliminary
demurrer for
tract, and (b)
n to stay the
No. 903 Civil 1992
proceedings, based upon the pendency of the
action.l$ For the reasons stated in this Opinion,
preliminary objections must be dismissed.
rior mandamus
e Defendant's
In considering a preliminary objection in the form of a
demurrer, a court must resolve the matter on thel basis of the
pleading challenged. "[A]11 well -pleaded facts in' the complaint
and all inferences reasonably deducted from it mustbe accepted as
true 5 Standard Pennsylvania Practice §25:6 (1972 Supp);
see Yoon v. Faxon Construction Co., 38 D. & C.3d 568! 570 (Lycoming
Co. 1984). "[T]he Court's decision must be on the p beading alone."
5 Standard Pennsylvania Practice §25:68 (1982).
In order to sustain a demurrer, "we must find that (1) a cause
of action [is] not properly made out in the complai t; and (2) the
l
plaintiff would be unable to state a proper clim even on a
different statement of the facts." Nagy v. Bell Telephone Co. of
1
Pennsylvania, 292 Pa. Super. 24, 27, 436 A.2d 701, 703 (1981).
is Under Pennsylvania Rule of Civil Procedure '1028(a)(6), it
is no longer required that a preliminary objecti n raising the
pendency of a prior action be by petition. Neverth less, such an
objection "cannot be determined from facts of reco " Note, Pa.
R.C.P. 1028. The Rule apparently contemplates 'the taking of
depositions or providing the court with additions evidence" in
cases where the objection and answer theret provide an
insufficient basis upon which to resolve the issueii. Explanatory
Comment - 1991, Pa. R.C.P. 1017. In the present ase, where no
depositions have been taken, the record at this) stage of the
proceedings is very limited; "a court may not ordinarily take
judicial notice in one case of the records in another case even
though the case arose in the same court and the contents of those
records are known to the court." Callery v. Blythe Township
Municipal Authority, 432 Pa. 307, 309, 243 A.2d 38 , 386 (1968).
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No. 903 Civil 1992
Furthermore, "all doubts [as to the sufficiency of he complaint]
should be resolved in favor of overruling the demurrer." Yoon v.
Faxon Construction Co., 38 D. & C.3d 568, 571 (Lycom'ng Co. 1984).
Thus, in granting a preliminary objection by sustaining a demurrer,
"it must appear with certainty that, upon the facts averred, the
law will not permit recovery by the plaintiff." Bic ell v. Stein,
291 Pa. Super. 145, 149, 435 A.2d 610, 612 (1 81) (citation
omitted).
In its first preliminary objection, the Defendant Township
contends that the Plaintiff's complaint fails to state a cause of
action for breach of contract. More specifically, the Defendant
contends that Ordinances 407 and 409 could not create a contractual
obligation on the part of the Township because they ire indefinite
in specifying the parties to be bound thereby, and they fail to
state at what point in time any permits are to be issued by the
Township. 19
In constructing, operating and maintaining a sewage system, a
municipality is acting in its proprietary capacity. Hamilton's
Appeal, 340 Pa. 17, 16 A.2d 32 (1940). By charging a fee for the
use of its sewage facility, the municipality "is operating in the
same manner as a private corporation or a private i dividual, ...
and the relation established with the individuals with whom it
deals is purely one of contract." Millersville Bo ouqh v. Manor
19 Defendant's Preliminary Objections, paragrhs 11, 12.
7
No. 903 Civil 1992
Builders, Inc., 57 Lanc. L.R. 543, 546 (1961). Inl
the Court of Common Pleas of Lancaster County held
Millersville,
t by paying
a sewer connection fee, as required by a Borough ordinance, a
landowner accepted the Borough's offer of sewer dervices, thus
creating a contract between the Borough and the landowner for the
sewer services and payment therefor.20 Although the ordinance
passed by the Borough of Millersville did not specify the
identities of the parties to be bound or the time of performance,
the Court of Common Pleas held that the ordinance donstituted an
offer by the Borough, while the payment of the connection fee by
the landowner constituted an acceptance of this offer. Id.21
Following the reasoning of Millersville, we believe that the
Defendant Township's enactment of Ordinances 407 and 409, which
provide for the reservation of sewage capacity, could arguably be
20 In addressing this issue in Millersville Borough, the Court
of Common Pleas dealt solely with the issue of determining whether
the defendant landowner could be bound by the ordinance. However,
the Court premised its decision upon the existence of a contract
between the Borough and the landowner.
21 In further support of the creation of a co tract between
the municipality and the individuals with whom it de ls, the Court
of Common Pleas of Montgomery County held that the fees which a
municipality charges for the use of its sewage system "must be
predicated upon actual use and must be reasonably pr, portionate to
the value of the service rendered." Upper Montgome y Joint Auth.
v. William A. Stokes Co., 91 Mont. L.R. 23, 26 (19 9). See also
Yezioro v. North Fayette County Municipal Auth., 193 Pa. Super.
271, 278, 164 A.2d 129, 133 (1960) ("A municipal aut ority has the
privilege of fixing and receiving reasonable and uni orm rates for
the service which it provides and it has the obligation to render
adequate, safe and reasonable service.")
A
No. 903 Civil 1992
considered an offer for services. At the same time, the
Plaintiff's payment of the quarterly invoices could arguably be
considered an acceptance of the Defendant Township' E offer. As in
Millersville, this offer and acceptance could be found to have
created a contract between the Defendant Town hip and the
Plaintiff, irrespective of the fact that Ordinances 4 07 and 409 did
not explicitly state the parties to the contract cr the time of
performance of the contract. Under such a contract, the Defendant
Township could be determined by a trier of fac to have an
obligation to provide the Plaintiff with adequate, safe and
reasonable service. Consequently, it cannot be saidwith certainty
at this stage of the proceedings that Ordinances 407 and 409 had no
potential for creation of a contract between the Defe dant Township
and the Plaintiff and that no right of recovery is conceivable as
a matter of law. zs
The Defendant Township's second preliminary objection is based
on the contention that the pendency of Plaintiff's p evious action
22 This is not to suggest that the Defendantownship would
be automatically liable to the Plaintiff if the trie of fact found
that a contract existed between the two parties. A municipality
can terminate a contract for sewer services nder certain
circumstances. A.F. Reese, Inc. v. Borough of Ha over, 68 York
L.R. 57 (1954); see also Armstrong v. Hughesville over,
24 D.
& C.2d 401, 406 (Lycoming Co. 1960) ("The grant a municipal
corporation of the privilege of connecting with it sewers is a
license which may be revoked for sufficient cause t any time").
Furthermore, nothing herein is intended to dispose o the issue of
any defense which may be asserted based upon public necessity,
resulting in the moratorium on permits referred to n the text.
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No. 903 Civil 1992
in mandamus precluded the present action. It is a�serted that a
dismissal of the Complaint should follow."
"A plea of a former suit pending must allege tl at the case is
the same, the parties are the same, and the rights aE serted and the
relief prayed for [are] the same." L.B. Corp. v. Je sop Steel Co.,
42 D. & C.3d 363, 369 (Chester Co. 1985). In other words, the
party raising the defense of lis pendens, i.e., the pendency of a
prior action, must show that the two actions are identical. Id.
For purposes of a lis pendens defense, the courts of this state
have held that a pending equity action is di tinct from a
subsequent legal action because the remedies being sought are
different.24 Additionally, although mandamus is a strictly legal
remedy, the determination of whether this extraordinary relief will
be granted is governed by equitable principles."
Based upon the distinction which has been drawn between legal
and equitable remedies, as well as the unique natur of mandamus,
an action in mandamus and an action for contract dam ges represent
23 Defendant's Preliminary Objections, paragr4h 15.
24 See Kramer v. Kramer, 260 Pa. Super. 332, 340, 394 A.2d
577, 587 (1979) ("[A] pending equity action is dee ed not be the
same as the corresponding legal action when theemedies being
pursued are different, even if both actions arose o t of the same
factual situation."). See also Raw v. Lehnert, 238 Pa. Super. 324,
357 A.2d 574 (1976).
25 See Pittenger v. Union Area School Bd. , 24P Commw. 442,
356 A.2d 866 (1976); Hosler v. Bellefonte Area Sc ool Dist., 16
Pa. Commw. 610, 330 A.2d 275 (1975).
10
No. 903 Civil 1992
separate and distinct prayers for relief.
Furthermore, we believe that the Plaintiff's present action
for breach of contract does not assert the same rights as the
Plaintiff's prior pending action in mandamus. Mandamus will "issue
only where there is a clear and specific legal right in plaintiff
and a corresponding duty in defendant." Francis v. Corleto, 418
Pa. 417, 421, 211 A.2d 503, 505 (1965). In the Plaintiff's prior
mandamus action, the Court of Common Pleas held, and the
Commonwealth Court affirmed, that the Plaintiff had ILO vested right
in the building and sewer connection permits. McN ughton Co. v.
Witmer, No. 266 C.D. 1992 (Pa. Commw. Ct. 1992). Since the
Plaintiff's mandamus action would have failed even I ad it not been
mooted by repeal of Ordinance No. 425, the Commonwealth Court went
on to note that there could have been no damages i cident to the
Plaintiff's mandamus action.26 On the other hand, the Plaintiff
is presently alleging that because of the payment of the sewer
reserve rental charges, the Defendant Township I ad a duty to
reserve sewer volume capacity for the Plaintiff.27 The Plaintiff
26 Since Ordinance No. 425 had been repeale prior to the
Commonwealth Court's consideration of the Plaintiff Is mandamus
action, "that portion of the mandamus which sought the issuance of
the permits is moot." McNaughton Co. v. Witmer, No. 266 C.D. 1992,
slip. op. at 3 (Pa. Commw. Ct. 1992). However, it was necessary
for the Commonwealth Court to consider the Plaintiff's rights in
the permits in order to determine whether the Plaintiff was
entitled to damages incident to the mandamus action Id.
27 Plaintiff's Complaint, paragraph 32.
11
No. 903 Civil 1992
further avers that the Defendant Township breached th's obligation,
resulting in the Plaintiff's being unable to cont -nue with the
development of Canterbury Estates. As opposed to its prior
assertion of a vested right in the building and sewer connection
permits, the Plaintiff is now,alleging that the Defendant Township
breached the contract created by Ordinances No. 40 and 409 - an
assertion of a different right. For this reason, t*e Plaintiff's
prior mandamus action and its present contract a
identical, and, as such, the latter action cannot b
the basis of the defense of lis pendens.28
ORDER OF COURT
AND NOW, this,2 4t4day of August, 1992, upon co
the Defendant Township's Preliminary Objections to t
Complaint, and for the reasons stated in the accompai
the Defendant's Preliminary Objections are DISMISSED.
granted twenty days within which to file an answer.
BY THE COURT,
28 Nothing in this Opinion is intended to treat
issues of collateral estoppel.
12
ion are not
dismissed on
sideration of
Plaintiff's
ying Opinion,
Defendant is
J.
ny applicable
No. 903 Civil 1992
C. Roy Weidner, Esq.
David J. Lanza, Esq.
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Counsel for Plaintiff
Donald M. Lewis, III, Esq.
210 Walnut Street
Harrisburg, PA 17108-1963
Counsel for Defendant
:rc
13