Opinion
No. 875 C.D. 2011 No. 881 C.D. 2011 No. 882 C.D. 2011
04-05-2012
East Penn Township v. Clair F. Troxell and Diana T. Troxell, Appellants
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P.) HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Clair F. Troxell and Diana T. Troxell (the Troxells) appeal three orders of the Court of Common Pleas of Carbon County (trial court). The orders enjoined the Troxells from using three properties in East Penn Township (Township) in violation of the East Penn Township Zoning Ordinance (Ordinance) and levied fines for violations of the Ordinance.
The appeals were consolidated before this Court.
The Township commenced three separate enforcement actions against the Troxells for parking commercial vehicles on one property, raising pigs on another, and storing junk and impermissibly operating a trucking terminal on a third property all in violation of the Ordinance. The proceedings were consolidated before a district justice. The district justice issued a decision on May 2, 2008, and imposed fines and fees.
The Troxells appealed to the trial court. The Township was directed to file a complaint. On June 23, 2008, the Township filed complaints on all three matters. The Troxells did not respond to the complaints. On August 15, 2008, default judgments against the Troxells were entered. On August 25, 2008, the Troxells petitioned to open the default judgments and to permit an answer pursuant to Pa.R.C.P. No. 237.3(b). On July 29, 2009, the trial court denied the petition. The Troxells sought a stay, which was denied after oral argument on October 27, 2009.
Pa.R.C.P. No. 237.3(b)(3) provides: "If the petition is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense."
The Troxells appealed the denial of the stay petition to this Court. On January 5, 2011, this Court affirmed the denial of the petition for stay.
On February 10, 2011, the Township filed a "Petition for Court to Frame Order" pursuant to Pa.R.C.P. No. 1037(d). The trial court held a hearing on April 7, 2011. The Township sought fines of $500 per day for the period of time that the Troxells were in violation of the Ordinance as well as injunctive relief.
Pa.R.C.P. No. 1037(d) provides: "In all cases in which equitable relief is sought, the court shall enter an appropriate order upon the judgment of default or admission and may take testimony to assist in its decision and in framing the order."
Richard Deitrich (Deitrich), Township zoning officer, testified that under the Ordinance the fine for each violation was up to $500 per day and each day was a separate violation. Notes of Testimony, February 10, 2011, (N.T.) at 6; Reproduced Record (R.R.) at 18a. Deitrich described the three properties and the violations of the Ordinance at each one. The Township and the Troxells' counsel agreed that the violations for parking commercial vehicles on one property and for raising pigs on the second property ceased as of May 1, 2008. N.T. at 9-11; R.R. at 21a-23a. With the third property located at 2105 East Lizard Creek Road (East Lizard Creek Property), Deitrich submitted photographs which showed a trucking terminal, tractor-trailers, oil tanks, and garbage on the property. N.T. at 13; R.R. at 25a. Deitrich looked at the property the day before the hearing and represented that the photographs were accurate. N.T. at 13; R.R. at 25a. Deitrich also testified that the Township's legal fees over the course of the litigation were approximately $10,000. N.T. at 17; R.R. at 29a.
Harvey Keiper (Keiper), a neighboring landowner, testified regarding his complaints to the Township about the East Lizard Creek Property's use as a junkyard for ten years. N.T. at 19; R.R. at 31a. Keiper introduced photos showing trucks, fuel tanks, scrap metal, trucks cut up, old trailers, and tires. N.T. at 19-21; R.R. at 31a-33a. The Troxells did not appear at the hearing. Troxells' counsel volunteered that there were tax liens on the properties.
The trial court granted the Township the requested relief. The first order enjoined the Troxells from using their property located along West Bowmans Road in the Township for the parking of commercial vehicles and ordered the Troxells to pay the Township $115,500.00 calculated from the date of the enforcement notice, September 14, 2007, up to and including the agreed upon date of May 1, 2008. The second order enjoined the Troxells from using their second property located along West Bowmans Road in the Township for animal husbandry, including but not limited to, the raising of pigs or hogs and ordered the Troxells to pay the Township $115,500 calculated from the date of the enforcement notice, September 14, 2007, up to and including the agreed upon date of May 1, 2008. The third order enjoined the Troxells from using the leased and/or occupied East Lizard Creek Property in the Township for the storage of junk, including junk vehicles, junk tires, and other scraps, enjoined them from using this property as a trucking terminal, ordered the Troxells to move any and all commercial vehicles on the property immediately, and held the Troxells responsible for payment to the Township of $500 per day from the date of the enforcement notice, November 13, 2007, until the date upon which the Troxells cease storing junk on the property and/or using the property as a trucking terminal. As of the date of the trial court's order, the amount owed was $624,500.00. The trial court also ordered the Troxells' to pay $10,000.00 to Township for attorney's fees.
The Troxells contend that the trial court erred when it entered an open-ended judgment with respect to the property located at East Lizard Creek Road, that the trial court abused its discretion when it assessed the maximum possible fine in light of the facts of the case, that the trial court improperly imposed a fine that was excessive on its face and not supported by substantial evidence, and that the trial court abused its discretion when it awarded the Township $10,000.00 in attorney's fees without separate findings as to attorney's fees regarding each matter and without analyzing whether the fees sought were reasonable as required by statute.
In an appeal from a trial court's decision in a zoning enforcement proceeding, this Court's review is limited to determining whether the trial court committed an abuse of discretion or an error of law. Borough of Bradford Woods v. Platts, 799 A.2d 984 (Pa. Cmwlth. 2002). Appellate review of a trial court's order which awards attorney's fees to a litigant is limited solely to a determination of whether the trial court palpably abused its discretion when it made the fee award. Thunberg v. Strause, 545 Pa. 607, 682 A.2d 295 (1996).
Initially, the Troxells contend that the trial court erred because it issued an open-ended judgment that was ongoing and running and permitted the Township to unilaterally charge additional amounts to the preexisting judgment without court approval or adequate notice to the Troxells. The Troxells argue that while each day a violation continues constitutes a separate violation under Section 617.2 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §10617.2(a), nothing in the MPC authorizes prospective relief for future perceived violations. The Troxells assert that the open-ended judgment is illegal and an unconstitutional deprivation of due process because it authorizes the Township to unilaterally charge additional amounts to the preexisting judgment without court supervision and without adequate notice to the Troxells.
Act of July 31, 1968, P.L. 805, as amended. This section was added by the Act of December 21, 1988, P.L. 1329. --------
The trial court explained:
Due to the continuation of the violation, the fines assessed were left open. It is our opinion that we have not acted in contravention of 53 P.S. §10617.2 in leaving the judgment open until the non-conforming use ceases. . . . On April 7, 2011 we heard testimony that indicated the
violations are continuing. Appellants [Troxells] had the chance to contradict the testimony; but counsel did not object and Appellants [Troxells] themselves did not appear, nor did they give notice to counsel or this Court of their availability.Trial Court Opinion, July 8, 2011, (Opinion) at 4-5; R.R. at 52a-53a.
Section 617.2(a) of the MPC, 53 P.S. §10617.2(a), provides:
Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of any zoning ordinance enacted under this act or prior enabling laws shall, upon being found liable therefor in a civil enforcement proceeding commenced by a municipality, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by a municipality as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of the determination of a violation by the district justice. If the defendant neither pays nor timely appeals the judgment, the municipality may enforce the judgment pursuant to the applicable rules of civil procedure. Each day that a violation continues shall constitute a separate violation, unless the district justice determining that there has been a violation further determines that there was a good faith basis for the person, partnership or corporation violating the ordinance to have believed that there was no such violation, in which event there shall be deemed to have been only one such violation until the fifth day following the date of the determination of a violation by the district justice and thereafter each day that a violation continues shall constitute a separate violation. All judgments, costs and reasonable attorney fees collected for the violation of zoning ordinances shall be paid over to the municipality whose ordinance has been violated.
This Court agrees with the Troxells that there is nothing in Section 617.2(a) of the Code, 53 P.S. §10617.2(a), to support the proposition that the trial court possessed the authority to issue an open-ended judgment.
In fact, the Township appears to concede this point. In its brief, the Township argues that the trial court did not enter an open-ended judgment. However, the Township likens the present matter to City of Erie v. Freitus, 681 A.2d 840 (Pa. Cmwlth. 1996), petition for allowance of appeal denied, 547 Pa. 738, 690 A.2d 238 (1997), where the Court of Common Pleas of Erie County assessed a fine of $100.00 per day from the initial date of violation until September 13, 1995, which was the date the Court of Common Pleas of Erie County held a hearing. The Township asserts "[t]his is no different from our case where Judge Webb [trial court] assessed the fine from the date of the Enforcement Notice up to the date of the hearing." Township's Brief at 7.
The Township incorrectly interprets the trial court's order. The trial court did not just assess the fine up to the date of the hearing or the date of its order. The trial court assessed a fine of $500 per day from the date of the Enforcement Notice forward, even after the date of the hearing. It did not close the time period for assessing fines at the hearing date. Rather the trial court ordered the Troxells responsible for payment to the Township from the date of the Enforcement Notice into some date into the future. As the Troxells assert, the trial court's order permits the Township to unilaterally add $500 per day to the existing judgment until it saw fit to deem the Troxells compliant with the Ordinance. These additional amounts were without Court approval. This Court finds the trial court lacked the authority to issue the open-ended fine.
The Troxells next contend that the trial court abused its discretion when it assessed the maximum fine possible in light of the facts and circumstances of the case. The only testimony was by Deitrich and Keiper, which the Troxells characterize as self-serving, and some photographs. The fines assessed exceeded the value of all three properties combined. The Troxells argue that there was no injury to the Township or any third parties.
An abuse of discretion occurs when a court reaches a decision where the course pursued is more than just an error in judgment but where the judgment was manifestly unreasonable or where the law was not applied or where the record shows that the action was the result of partiality, prejudice, bias, or ill will. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000).
Here, the trial court did not exceed the statutorily authorized fine. The trial court explained its reasoning for imposing the maximum fine in its opinion:
As mandated by statute, each day that a violation continues constitutes a separate violation for which $500 penalty may be imposed. It is true that Plaintiff [Township] requested that the maximum fines be imposed; and we acted in accordance with that request. Contrary to Appellants [Troxells] statement; however, the assessment of maximum penalties was not made without consideration that the 'conduct complained of had ceased.' At the Hearing, the parties agreed on May 1, 2008 as the date the violations ceased in cases 08-1360 and 08-1361. However, it was noted that regarding case 08-1360, an enforcement notice was originally sent on
November 30, 2006. The November 30, 2006 notice was appealed to the Zoning Hearing Board, but Appellants [Troxells] agreed to withdraw the appeal and remove all commercial vehicles from the property. The vehicles were in fact removed over the next few months; but during July, August, and September of 2007, Appellants [Troxells] recommenced the storage of commercial vehicles on the property. A second enforcement notice was issued on September 14, 2007; and it was from the September 14, 2007 date that we calculated fines in matter 08-1360. Fines were not assessed beyond May 1, 2008 in that case, nor were they assessed before September 14, 2007. Similarly, in case 08-1361, fines were assessed from the date of the enforcement notice to the agreed upon stoppage date. Appellants' [Troxells] counsel did not object to the May 1, 2008 date in both 08-1360 and 08-1361. In case 08-1362, however, the activities giving rise to the violation have not ceased, a fact which was also considered in the assessment of fines.Opinion at 4; R.R. at 52a.
The trial court considered the evidence presented at hearing and the history of the case. The trial court applied the law as set forth in the MPC. There is no suggestion of any bias, partiality, or ill will on the part of the trial court toward the Troxells. This Court determines the trial court did not abuse its discretion.
The Troxells also contend that the amount of the fine was excessive on its face in violation of Article I, Section 13 of the Pennsylvania Constitution. The fine was excessive for innocuous zoning violations especially considering that the Troxells were in dire financial straits.
The Troxells ignore two crucial points. First, the amount of the fines was authorized under Section 617.2(a) of the MPC. Second, the fines would have ceased had the Troxells chosen to comply with the Ordinance sooner in the case of the first two properties, or, at all, in the case of the third. This Court finds this argument lacks merit.
Finally, the Troxells contend that the award of attorney's fees was unsupported by substantial evidence and constituted an abuse of discretion and an error of law because there were no separate findings as to attorney's fees regarding each matter and because there was no finding that the fees sought were reasonable as required by statute. There were no billing records, hourly rates or other evidence introduced to substantiate the claims of the Township.
The trial court reasoned:
Plaintiff's [Township] request for fees was not the sole evidence upon which our decision rested. As stated above, Plaintiff [Township] presented testimony from two witnesses as well as photographs in support of the Petition. . . .
. . . .
The 'American Rule' states that each party to litigation must pay its own attorney fees, unless there is statutory language providing for fees, the parties have a clear, contractual agreement, or there is some other established exception. . . . In this case, there is clear statutory language. As part of the Enforcement remedies of a zoning violation, 53 P.S. [§] 10617.2(a) allows for the reward of 'reasonable attorney fees' in addition to other penalties assessed. . . .
. . . .From the most recent notice until the April 7, 2011 hearing, more than three years had passed, during which
time Plaintiff's [Township] attorney had prepared various filings, appeared in court, and completed other tasks relevant to the three matters. Appellants [Troxells] contend that we abused our discretion in granting $10,000 in attorney's fees, such amount representing the costs on Plaintiff [Township] in pursuit of all three matters. . . . However, the reasonableness of attorney's fees incurred throughout the enforcement of a zoning ordinance is to be decided through the sound discretion of the trial court. . . and it is our opinion that a $10,000 fee for at least three years of work is not an unreasonable figure. Furthermore, it is our contention that Appellants [Troxells] waived their right to challenge the reasonableness of attorney fees, as Appellants [Troxells] failed to appear at the April 7, 2011 Hearing and Appellants' [Troxells] failed to challenge the accuracy and reasonableness of the hours charged. (Footnotes omitted).Opinion at 7-8; R.R. at 55a-56a.
In Township of South Whitehall v. Karoly, 891 A.2d 780 (Pa. Cmwlth.), petition for allowance of appeal denied, 588 Pa. 787, 906 A.2d 546 (2006), this Court addressed the assessment of attorney fees in a similar case. John Karoly (Karoly) was cited by the Township of South Whitehall (South Whitehall) for erecting a shed and installing a dumpster next to an office building he owned in violation of the South Whitehall's zoning ordinance, building code, subdivision and land development plan, and/or the Township's solid waste management ordinance. A district justice found Karoly guilty of violating the ordinances. South Whitehall filed a complaint in the civil division of the Court of Common Pleas of Lehigh County. The Court of Common Pleas of Lehigh County found in favor of South Whitehall with regard to a zoning enforcement count and a building code enforcement count. South Whitehall subsequently petitioned for counsel fees and costs under Section 617.2 of the MPC and the local zoning ordinance. The Court of Common Pleas of Lehigh County awarded South Whitehall the sum of $28,493.21 for reimbursement of attorney fees. Karoly appealed to this Court. Karoly, 891 A.2d at 781-782.
One of the issues raised by Karoly was that the charges for attorney fees were unreasonable. This Court disagreed and determined that because Karoly did not challenge the reasonableness of the fees before the Court of Common Pleas of Lehigh County he waived any challenge to the reasonableness of fees before this Court. Karoly, 891 A.2d at 786.
Here, at the hearing before the trial court, the Troxells through their counsel had the opportunity to challenge the amount of attorney fees requested by the Township regarding the total fee, the amount allocated to each property, the billing rates, and hours performed. They did not do so. As a result, under Karoly, the Troxells may not raise these issues for the first time before this Court.
Accordingly, this Court affirms in part and reverses in part. This Court affirms the orders regarding the two properties located on West Bowmans Road and regarding the award of attorney fees. With respect to the property located at East Lizard Creek Road, this Court affirms the award of injunctive relief and the order to remove any and all commercial vehicles from the property. This Court affirms in so far as the trial court fined the Troxells $500.00 per day from the date of the Enforcement Notice until the date of the trial court's order for a total fine of $624,500.00. This Court reverses the portion of the order which entered an open-ended judgment in which an additional $500.00 fine was imposed for each day the Troxells violate the Ordinance moving forward.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 5th day of April, 2012, the orders of the Court of Common Pleas of Carbon County in the above-captioned matters are affirmed in part and reversed in part. First, the order relating to the violation of the East Penn Township Zoning Ordinance for the parking of commercial vehicles at the first West Bowmans Road property is affirmed. Second, the order relating to the violation of the East Penn Township Zoning Ordinance for engaging in animal husbandry at the second West Bowmans Road property is affirmed. Third, the order imposing attorney fees is affirmed. Fourth, this Court affirms the award of injunctive relief and the order to remove any and all commercial vehicles from the property located at East Lizard Creek Road. Fifth, with respect to the East Lizard Creek Road property, this Court affirms the order of the Court of Common Pleas of Carbon County in so far as it imposed a fine of $500.00 per day from the date of the Enforcement Notice for violation of the East Penn Township Zoning Ordinance until the Court of Common Pleas of Carbon County's April 14, 2011, order for a total fine of $624,500.00. Sixth, this Court reverses the portion of the order which entered an open-ended judgment in which an additional $500.00 fine was imposed for each day Clair F. Troxell and Diana T. Troxell violate the East Penn Township Zoning Ordinance moving forward.
/s/_________
BERNARD L. McGINLEY, Judge