Township of South Fayette v. Boys' Home

376 A.2d 663, 31 Pa. Commw. 254, 1977 Pa. Commw. LEXIS 958
CourtCommonwealth Court of Pennsylvania
DecidedJuly 25, 1977
DocketAppeals, Nos. 255, 355, 525, 552 and 636 C.D. 1976
StatusPublished
Cited by10 cases

This text of 376 A.2d 663 (Township of South Fayette v. Boys' Home) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Township of South Fayette v. Boys' Home, 376 A.2d 663, 31 Pa. Commw. 254, 1977 Pa. Commw. LEXIS 958 (Pa. Ct. App. 1977).

Opinions

Opinion by

Judge Rogers,

On February 11, 1976, at the suit of South Fayette Township, a judge of the Court of Common Pleas of Allegheny County enjoined the Center for Assessment and Treatment of Youth, Inc. (CATY), a nonprofit corporation, and David E. Hagan, its president, from continuing to operate a so-called secure treatment unit for juvenile delinquents on property owned and formerly used as an orphanage by another nonprofit corporation, The Boys’ Home, until the defendants should have complied with the Township’s zoning and land use ordinances. The Commonwealth of Pennsylvania, which was interested in the unit’s establishment and had contracted for its use as a place for the commitment of delinquents, was permitted to intervene. By order of March 15, 1976, the court found CATY and [257]*257Hagan to be in contempt of court for operating the unit in violation of its February 11, 1976 order and imposed fines on each. CATY and the Commonwealth have appealed the February 11, 1976 injunction order and CATY, Hagan and the Commonwealth have appealed the March 15, 1976 contempt order, the Commonwealth because it paid CATY’s and Hagan’s fines.

The Township’s original complaint in equity seeking the injunction named The Boys’ Home and a third nonprofit corporation, Center for Community Alternatives (CCA) as defendants. It sought an order prohibiting the defendants from operating a “penal institution for juvenile criminal offenders.” A hearing on the application for a preliminary injunction was scheduled for January 30, 1976. On January 29, 1976 the Commonwealth sought intervention which the court allowed for the purpose of its participation in the preliminary injunction hearing. On the same day, Boys’ Home and CCA filed preliminary objections and motions to stay the hearing scheduled January 30,1976 pending determination of jurisdictional issues raised by their objections. Their motion was refused. On January 30,1976, the court, on motion of the Township, allowed the complaint to be amended so as to substitute CATY for CCA as a defendant.

The hearing was conducted on January 30, 1976. The Township produced evidence which tended to show that the use of the property as a home for juvenile delinquents was not permitted by its zoning ordinance; that no application for required zoning and occupancy permits had been made; that the presence of adjudicated juvenile delinquents on the property posed a threat to the health, safety and welfare of the community; and that other facilities within the Township and owned by the Commonwealth were available for His program. In defense, CATY, the Commonwealth and The Boys’ Home contended that the proposed se[258]*258cure treatment unit would serve a valuable public service and that it would be harmful to the six delinquents which they had already placed on the property and to the program if the unit should be forced to close. Evidence of the fiscal and regulatory control exercised by the Commonwealth was also adduced.

On February 11, 1976, the chancellor preliminarily enjoined CATY and Hagan, its president and only incorporator, from using the property until appropriate Township zoning and occupancy permits had been sought and obtained. CATY and the Commonwealth appealed to this Court from that order and applied unsuccessfully for supersedeas in the court below and in the Commonwealth and the Supreme Courts of Pennsylvania.

CATY and the Commonwealth first say that the court below was without jurisdiction in equity because the Township had available to it adequate statutory remedies under the Township’s zoning and land use ordinances, and presumably under Acts of the General Assembly. This argument is totally devoid of merit. Section 617 of the Pennsylvania Municipalities Planning Code1 empowers municipalities to bring actions to restrain the use of land in violation of their ordinances enacted pursuant to the Act. See also Hilltown Township v. Mager, 6 Pa. Commonwealth Ct. 90, 293 A.2d 631 (1972).

CATY and the Commonwealth next complain that the chancellor erred by failing to rule on their preliminary objections prior to conducting a hearing and deciding that the preliminary injunction should issue. Their argument seems to be that a court may not grant a preliminary injunction without first disposing of preliminary objections; that if the preliminary objections are dismissed the court may not grant the pre[259]*259liminary injunction until the defendants have filed an answer; and that if the preliminary objection raises a question of jurisdiction the court may not grant the preliminary injunction until a disappointed defendant has pursued his appeal to higher courts. If this were the law, which it is not, preliminary injunctions would be rare indeed. The defendants’ objections in this case were filed on the day before the scheduled preliminary injunction hearing. At the January 30, 1976 hearing the trial court admitted evidence relating both to the preliminary objections and to the preliminary injunction. On the same day it disposed of some of the preliminary objections by permitting the Commonwealth to intervene as a party defendant and ordering that CATY be substituted as a defendant for CCA. On February 11, 1976 the chancellor, in addition to issuing the preliminary injunction, overruled the defendants’ remaining preliminary objections. The so-called jurisdictional objection, the presence of which is advanced as a reason why the chancellor should not have granted an injunction, was the same objection to equity jurisdiction which we have discussed and found to be without merit.

The appellants also contend that the court’s order offended the principle that a preliminary injunction should not be granted unless the right of the plaintiff is clear and unless immediate and irreparable injury would result if the injunction is not granted. In Hilltown Township v. Mager, supra, we held that a landowner’s action in building and leasing units in an apartment house without obtaining building and zoning permits established clear right of the plaintiff to injunctive relief and constituted a sufficient showing of clear and immediate harm. In affirming the order granting the preliminary injunction, we wrote:

It is clear that the injury to the Township is immediate as well as irreparable. At the hear[260]*260ing, the Township established a prima facie showing that appellants were in violation of the Township’s building and zoning ordinance. Appellants’ continuing violation of the Township’s ordinance is unlawful conduct of a most serious nature and a threat to the health, safety and welfare of the remainder of the Township populace. Such conduct is a proper subject for preliminary injunctive relief. See Pennsylvania Public Utility Commission v. Israel, 356 Pa. 400, 52 A.2d 317 (1947). ‘A preliminary injunction is to put and keep matters in the position in which they were before the improper conduct of the defendants commenced and to prevent them from gaining any advantage by their own wrongful acts: (citing eases).’ Pennsylvania Public Utility Commission v. Israel, supra, at 408, 52 A.2d at 321-22.

6 Pa. Commonwealth Ct. at 96, 293 A.2d at 634.

The preliminary injunction was properly granted.

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Bluebook (online)
376 A.2d 663, 31 Pa. Commw. 254, 1977 Pa. Commw. LEXIS 958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/township-of-south-fayette-v-boys-home-pacommwct-1977.