Borough of Indian Lake v. D.A. Rohrich

• Court: Commonwealth Court of Pennsylvania
• Decided: August 27, 2015
• Docket: 22 C.D. 2015
• Status: Unpublished

Opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of Indian Lake : : No. 22 C.D. 2015 v. : : Submitted: June 12, 2015 David A. Rohrich, : Appellant :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: August 27, 2015

David A. Rohrich (Appellant) appeals from the December 8, 2014 order of the Court of Common Pleas of Somerset County (trial court), denying Appellant’s post-trial motion and affirming a verdict entered by the trial court on October 22, 2014. In this verdict, the trial court entered judgment in favor of the Borough of Indian Lake (Borough) and directed Appellant to disconnect his two-story garage from his existing on-lot sewage system and apply for a proper sewage permit. The trial court concluded that Appellant’s connection of the garage to the on-lot sewage system without a permit was a violation of section 7 of the Pennsylvania Sewage Facilities Act (Act)1 and that such violation constituted a nuisance pursuant to section 14 of the Act, 35 P.S. §750.14. The underlying facts of this case are not in dispute and have been stipulated to by the parties. On July 25, 2003, Appellant submitted an application for

1 Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. §750.7. an on-lot sewage disposal system permit for his residential property located at 242 South Peninsula Drive, Indian Lake, Somerset County, Pennsylvania.2 This application was approved by Jerry Mostoller, the Borough’s sewage enforcement officer, on September 13, 2003, and the permit was issued to Appellant. Mostoller conducted a final inspection of the sewage system on October 23, 2006, and approved the same. (Joint Stipulations at 1-2, 4; Reproduced Record (R.R.) at 42a.) In the meantime, on May 5, 2005, Appellant applied for and received a building permit to construct a two-story, detached garage. In this application, Appellant stated that “[t]here are no living quarters on the upper story of this structure.” (R.R. at 52a.) Appellant also placed his initials next to a statement from Frederick Jones, the Borough’s zoning officer, agreeing that there would be “[n]o living quarters or plumbing in space above garage.” (Joint Stipulations at 3; R.R. at 58a.) At the time of Mostoller’s final inspection on October 23, 2006, the second floor of the detached garage did not contain finished living quarters or plumbing and the garage was in no way connected to Appellant’s on-lot sewage disposal system. (Joint Stipulations at 3, 5; R.R. at 42a-43a.) Mostoller later learned that Appellant had finished the second floor of the detached garage and that various plumbing fixtures, including a sink, toilets, and a shower, had been connected to the existing on-lot sewage disposal system at some point in 2007. Appellant never applied for a permit relative to this connection, nor did he ever notify the Borough of his intention to connect the second-floor plumbing

2 In this application, Appellant sought permission to install a 1,250 gallon septic tank to replace an existing damaged tank that serves his four-bedroom house, boat house, and gazebo. (Reproduced Record at 46a-48a.)

2 to the existing system.3 In connecting the later-installed plumbing of the detached garage to the existing system, Appellant did not repair, replace, disturb, or modify his soil absorption area or the soil within or under this area. Despite repeated requests by the Borough, Appellant has neither applied for nor obtained a permit to connect the second-floor garage plumbing to the existing on-lot sewage disposal system. (Joint Stipulations at 6-11; R.R. at 43a-44a.) On April 5, 2013, the Borough filed a complaint in equity with the trial court seeking an injunction directing Appellant to cease utilizing the on-lot sewage disposal system for the detached garage, declaring such use a violation of the Act and, hence, a nuisance, and directing Appellant to apply for and obtain an appropriate sewage permit. Appellant filed preliminary objections, which were overruled by the trial court. Appellant then filed an answer admitting that the second floor of his detached garage includes a bathroom with a shower, sink, and toilet, and that these fixtures are connected to the existing on-lot system, but denying that such connection violated the Act or constituted a nuisance. In new matter, Appellant asserted that the Borough failed to state a claim, noting that the Borough had twice inspected and approved the on-lot system subsequent to garage connection and that the system had never failed. Appellant also asserted that his on-lot system was in compliance with all applicable statutes and regulations and met the minimum capacity needed to serve both his residence and the garage. Further, Appellant asserted that the Borough’s claims were barred by the doctrines of estoppel, res judicata, and laches, and by the statute of limitations. The Borough filed a reply to this new matter essentially denying these assertions.

3 In a separate land use appeal, the trial court concluded that the detached garage did not constitute a separate dwelling and did not violate the Borough’s zoning ordinance. (Joint Stipulations at 9; R.R. at 43a.)

3 The matter was scheduled for a non-jury trial on June 17, 2014. However, on that date, the parties submitted joint stipulations to the trial court rather than proceed with testimony. These joint stipulations were approved by the trial court that same day. Following the submission of briefs, on October 22, 2014, the trial court issued a verdict entering judgment in favor of the Borough. The trial court directed Appellant to disconnect his garage from the existing on-lot sewage disposal system and apply for a proper sewage permit. The trial court concluded that Appellant’s connection of the garage to the on-lot system without a permit was a violation of section 7(a)(1) of the Act, which prohibits a person from connecting to “an individual sewage system . . . without first obtaining a permit,” 35 P.S. §750.7(a)(1), and that such violation constituted a nuisance pursuant to section 14 of the Act.4 In an accompanying opinion, the trial court explained that Appellant’s connection of his garage to his on-lot sewage disposal system constituted a violation of the clear language of section 7(a)(1) of the Act requiring a permit for such connection. The trial court rejected Appellant’s argument that section 7(a)(1) of the Act was vague insofar as it did not define what types of activities constitute connections to an individual sewage system and that the trial court should look to section 72.22 of the Department of Environmental Protection’s sewage facilities regulations, 25 Pa. Code §72.22, for guidance on this issue.5 Relying on section

4 Section 14 of the Act provides, in pertinent part, that “[a] violation of section 7 of this act . . . shall constitute a nuisance and shall be abatable in the manner provided by law.” 35 P.S. §750.14.

5 Section 72.22 of these regulations states, in pertinent part, as follows:

(a) No person may install, award a contract for construction or construct an individual or community onlot sewage system, or install, construct, occupy or use a building to be served by that system (Footnote continued on next page…) 4 72.22(b) of this regulation and the joint stipulations, Appellant argued that the record did not establish that there was a repair, replacement, enlargement, disturbance, or modification of his treatment tank or soil absorption area and, hence, a permit was not required. However, the trial court reiterated that section 7(a)(1) of the Act clearly prohibits connection to an existing, on-lot system without first obtaining a permit and, consequently, there was no need to rely on section 72.22 of the sewage facilities regulations.6 Appellant thereafter filed a motion for post-trial relief seeking a judgment notwithstanding the verdict, alleging that the trial court, in relying solely on section 7(a)(1) of the Act, failed to give effect to section 9 of the Act, 35 P.S. §750.9,7 and to section 72.22(b) of the sewage facilities regulations. Appellant averred that

(continued…)

without first obtaining a permit from the local agency, except as provided in subsections (c)—(e).

(b) A permit shall be required by the local agency for alterations or connections to an existing individual or community onlot sewage system when the alteration or connection requires the repair, replacement or enlargement of a treatment tank or retention tank, or the repair, replacement, disturbance, modification or enlargement of a soil absorption area or spray field, or the soil within or under the soil absorption area or spray field.

25 Pa. Code §72.22(a)-(b).

6 The trial court also noted that section 72.22 “does not provide an exhaustive list of what might constitute a connection as envisioned under the Act, nor does it explicitly define or identify what sort of connection gives rise for the need to obtain a permit.” (Trial court op., October 22, 2014, at 9.)

7 Section 9 of the Act authorizes the Environmental Quality Board, inter alia, to adopt rules and regulations that “establish standards for the construction, installation, alteration, maintenance and operation of individual sewage systems and community sewage systems . . . .” 35 P.S. §750.9.

5 these sections must be read in pari materia. Appellant also reiterated his previous allegation that section 72.22(b) of the regulations controls the disposition of this matter and requires entry of a judgment in his favor. By memorandum and order dated December 8, 2014, the trial court denied Appellant’s post-trial motion. The trial court emphasized that section 7(a)(1) of the Act “unequivocally states that no person shall connect to an individual sewage system without first obtaining a permit.” (Trial court op., December 8, 2014, at 4.) The trial court rejected an argument by Appellant that section 7(a)(1) of the Act was not controlling because it did not set forth a “complete and exhaustive scheme of regulation for the subject matter at issue.” Id. (citing Appellant’s Post Trial Motion at 2; R.R. at 166a.) The trial court also rejected Appellant’s argument that section 72.22(b) of the sewage facilities regulations represents “the exclusive authority regarding permitting requirements for connecting to existing sewage systems.” Id. (emphasis in original). The trial court concluded that sections 7 and 9 of the of the Act, and section 72.22(b) of the sewage facilities regulations, need not be read in pari materia because this rule only applies if the words of a statute are ambiguous and section 7 is clear and unambiguous. The trial court agreed with Appellant that section 7 of the Act did not set forth a “complete and exhaustive scheme of regulation for the subject matter at issue,” but noted that section 72.22(b) of the sewage facilities regulations likewise did not provide a complete and exhaustive scheme of regulations. Rather, the trial court stated that section 72.22(b) merely provides “an outline of certain specific instances that absolutely trigger the need for a sewage permit.” (Trial court op., December 8, 2014, at 5.) As to the comments to section 72.22(b), upon which Appellant relied in arguing that a permit was not required to connect his garage to his on-lot system, the trial court characterized the actions discussed therein as merely

6 “incidental,” such as lifting the lid of a septic tank or unclogging a line in an absorption area; whereas “[c]onnecting a new building to an existing system . . . goes far beyond those types of actions that the General Assembly contemplated would not prompt the need for a permit.” (Trial court op., December 8, 2014, at 6.) On appeal to this Court,8 Appellant argues that the trial court erred in concluding that he violated section 7(a)(1) of the Act by failing to obtain a permit prior to connecting his detached garage to his pre-existing, on-lot sewage disposal system. More specifically, Appellant argues that his actions constituted an exception to the general rule requiring permits, consistent with section 72.22(b) of sewage facilities regulations. Having reviewed the record and the trial court’s opinions in this matter, we conclude that the issues raised by Appellant have been thoroughly reviewed and addressed in the opinions of the Honorable John M. Cascio. Accordingly, we affirm on the basis of the trial court’s opinions in Borough of Indian Lake v. David A. Rohrich, (Court of Common Pleas of Somerset County, No. 206 Civil 2013, filed October 22 and December 8, 2014).

________________________________ PATRICIA A. McCULLOUGH, Judge

8 Our scope of review of a judgment following a non-jury trial is limited to determining whether the trial court's factual findings are supported by substantial evidence and whether the trial court committed an error of law. McGaffic v. City of New Castle, 74 A.3d 306, 310 n.8 (Pa. Cmwlth. 2013).

7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of Indian Lake : : No. 22 C.D. 2015 v. : : David A. Rohrich, : Appellant :

ORDER

AND NOW, this 27th day of August, 2015, the order of the Court of Common Pleas of Somerset County (trial court), dated December 8, 2014, is hereby affirmed on the basis of the trial court’s opinions issued by the Honorable John M. Cascio in Borough of Indian Lake v. David A. Rohrich, (Court of Common Pleas of Somerset County, No. 206 Civil 2013, filed October 22 and December 8, 2014).

________________________________ PATRICIA A. McCULLOUGH, Judge