Lower Frederick Township v. Clemmer

543 A.2d 502, 518 Pa. 313, 1988 Pa. LEXIS 159
CourtSupreme Court of Pennsylvania
DecidedMay 20, 1988
Docket112 E.D. Appeal Docket 1987
StatusPublished
Cited by87 cases

This text of 543 A.2d 502 (Lower Frederick Township v. Clemmer) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lower Frederick Township v. Clemmer, 543 A.2d 502, 518 Pa. 313, 1988 Pa. LEXIS 159 (Pa. 1988).

Opinions

OPINION ANNOUNCING -THE JUDGMENT OF THE COURT

LARSEN, Justice.

Appellant Lower Frederick Township (Township) appeals from an order of the Commonwealth Court reversing a decree of the Common Pleas Court of Montgomery County that directed appellees, Curtis Clemmer, June Y. Clemmer (Clemmers) and Dawn Lenore Kratz to demolish and remove a building on their property, and ordered the Clemmers to pay the sum of $36,000 as damages, fine and civil penalty for violations of municipal ordinances. The Township raises three principal questions: (1) whether the appellee, Dawn Lenore Kratz, was properly joined as an additional defendant and therefore, within the jurisdiction of the court; (2) whether the lower court order directing appellees to demolish the “residential structure” under construction on their property was within the power of the court to order; and (3) whether a court sitting in equity may impose damages, fine and penalty for violations of municipal ordinances. The Commonwealth Court held that Dawn Lenore Kratz was not properly joined; that the lower court did not have the authority to order the residential shell demolished; and that the lower court lacked the authority to impose damages, fine and civil penalty for local ordinance violations. 101 Pa.Cmwlth. 341, 516 A.2d 412. We disagree with the conclusions of the Commonwealth Court; therefore, we reverse.

Background

In early September of 1979, it came to the attention of the appellant Township that, without first obtaining a building permit, appellee Curtis Clemmer had commenced construction of a building on certain property owned by him and his wife June. The Clemmer property is located on Gravel Pike in Lower Frederick Township in an R-2 zoning district. The R-2 zoning classification permits one principal single [317]*317family use and accessory uses. At the time building began, the Clemmers already had their principal family residence on the property. Shortly after learning of the construction activity, the Township notified Mr. Clemmer, in writing, that he was violating the Township building code. He was informed that all construction work must cease forthwith.

On September 24, 1979, the Clemmers applied for and received a building permit. The permit called for construction of a one-story, one room “shell only,” to be used as a storage facility.1 As construction of the “shell only” proceeded, it became apparent from the size and shape of the structure that its final intended use was more likely to be a residential dwelling rather than a storage shed. In a letter dated February 19, 1980, the Township notified the Clemmers that if they intended to use the structure as a residence, it was necessary for them to comply with the applicable subdivision ordinance. The Township requested that all construction stop immediately and that the Clemmers take the steps required to obtain complete subdivision approval. The Clemmers ignored the Township’s notice and request, and continued with construction of the building.

Responding to the Clemmers’ apparent disdain for the law, the appellant Township, on November 4, 1981, filed a complaint in equity and a motion for a preliminary injunction against appellees, Curtis and June Clemmer. In its lawsuit, the Township sought the following relief: (a) that the Clemmers be ordered to cease and desist from violating the Township ordinances; (b) that the Clemmers be ordered to remove, alter or take down the building under construction; (c) that the Township be awarded just and proper damages; and (d) that the Township be granted such other and further relief as is deemed just and reasonable.2 On [318]*318January 28, 1982, the court conducted a hearing on the Township’s request for a preliminary injunction. The court granted the preliminary injunction sought, and entered the following order:

ORDER
AND NOW, this 2nd day of February, 1982, following the hearing held in open court on January 28, 1982, Plaintiff Lower Frederick Township’s Motion for Preliminary Injunction is GRANTED and it is ORDERED AND DECREED that Defendants Curtis H. Clemmer and June V. Clemmer shall be and are hereby enjoined from further construction, building or work whatsoever on the structure which is the subject of the within action and shall make no use or occupancy thereof except as a shell for storage until further ORDER of this COURT.
This action may be listed for further hearing and for hearing on permanent injunction at the request of either party. THIS COURT will retain jurisdiction for the enforcement or modification of this ORDER.

On March 7, 1983, the Township filed a motion for a hearing on its request for a permanent injunction and its demand for other relief. A hearing was set for April 27, 1983. At the time of the scheduled hearing, the parties conferred and negotiated an agreement. On April 29, 1983, the terms of that agreement were placed on the record. Eventually, those terms were incorporated into a consent decree and order of court dated June 20,1983. The consent decree and order provided as follows:

DECREE AND ORDER
AND NOW, this 20th day of June, 1983 following presentation in open Court on April 29,1983 and the filing of a transcription of the agreement of the parties on or about May 24, 1983, the agreement is approved and the Order of Court is made permanent, as follows:
[319]*3191. Defendants agree to apply for subdivision approval and a variance, if necessary. The Defendants will apply for subdivision approval on or before May 29, 1983.
The Defendants will also apply for a percolation test and if the results from the percolation test are satisfactory to the Defendants, they will then process a three-lot subdivision for two existing dwellings and a third lot to convert the storage building to a residence. If the results of the percolation test are not satisfactory to the Defendants, they will then apply for a two-lot subdivision for the two existing dwellings with the storage building remaining on the same lot with the closest existing dwelling.
2. In the event of denial of any application of Defendants, they shall have the right of appeal as provided by law before such denial shall be final.
3. In the event the storage building is to remain for storage only as becomes required under the provisions above, Defendants shall have only two doors on the outside thereof except existing garage doors and all others including, in any event, the door on the front toward the road shall be permanently closed and covered. All windows except one in front and one on each of three floors on both sides and the back shall be permanently closed and covered on or before June 28, 1983. Interior partitions except bearing walls will be removed.
4. If the three lot subdivision is approved for ultimate use of the storage building as a single family residence, Defendants will obtain new building permit therefor.
5. Under any circumstances, the steps and sidewalks presently existing at or about the storage building may remain but all construction or work upon said building must be completed within two (2) years of final subdivision approval.

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Cite This Page — Counsel Stack

Bluebook (online)
543 A.2d 502, 518 Pa. 313, 1988 Pa. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lower-frederick-township-v-clemmer-pa-1988.