Opinion
No. 89 C.D. 2012
02-01-2013
David A. Romanoski, Appellant v. Borough of Palmyra
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
David A. Romanoski (Appellant) appeals the January 6, 2012 order of the Court of Common Pleas of Lebanon County (trial court) denying his request for a preliminary injunction against the Borough of Palmyra (Borough) staying the enforcement of ordinance provisions prohibiting parking on an alley adjacent to rented property he owns in the Borough.
Appellant owns a six-unit apartment building located at 116 East Main Street, at the intersection of East Main Street and a sixteen-foot wide alley (the alley or Shellbark Alley). Due to the alley's narrow width, cars parked in the alley forced the Borough's waste management trucks and other vehicles to enter the property of Palmyra Natural Food Store, creating a safety hazard.
On August 23, 2010, in accordance with Pennsylvania Department of Transportation (PennDOT) regulations, the Borough Council enacted section 1 of Ordinance 725 which prohibited parking along the portion of Shellbark Alley between East Main Street and East Cherry Street (Parking Prohibition). On August 14, 2010, notice that the Borough Council would consider Ordinance 725 at its August 23, 2010 meeting was provided in the Lebanon Daily News. The notice identified the alley as "Shellbark Alley." (Reproduced Record (R.R.) at 22a.) Appellant did not attend the meeting, and he alleges that he first became aware of Ordinance 725 after it was enacted and he observed the "No Parking" signs in the alley.
PennDOT regulations provide that parking may be restricted along the curb or the edge of a roadway where the distance between the centerline and the curb or edge of the roadway is less than 18 feet. 67 Pa. Code §212.114(a)(1). Municipalities may also restrict parking if the street width is such that if a vehicle is parked along one side of the road, two vehicles cannot move abreast of one another without one yielding to allow the other to pass. 67 Pa. Code §212.114(a)(2). Both of these conditions were present on Shellbark Alley.
The trial court found that the primary reason for enacting Ordinance 725 was to allow the Borough's waste management trucks access to Shellbark Alley. (Trial court's Findings of Fact (F.F.) No. 5.) Appellant stipulates that he does not challenge the substantive validity of the Parking Prohibition on the alley and agrees to all claims made by the Borough regarding PennDOT's rules. (Appellant's brief at 20.)
On November 22, 2010, Appellant filed a complaint alleging that Ordinance 725 was not advertised and published in compliance with the Borough Code,, and, therefore, his right to due process was violated by his preclusion from attending a meeting and providing input on Ordinance 725. He requested a preliminary injunction staying enforcement of the Parking Prohibition, asserting that it detrimentally affected his apartment business.
In Appellant's November 22, 2010 complaint, he originally alleged a violation of section 1601 of the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §666-1, erroneously classifying the Borough as a second class township. On December 6, 2010, Appellant amended his complaint and changed the substantive basis of his argument from the Second Class Township Code to the Borough Code.
Appellant, the Borough, and the trial court refer to section 1006(4) of the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §46006(4), which was repealed and replaced by the Act of May 17, 2012, P.L. 262, 53 P.S. §48301.2. Repealed section 1006(4) of the Borough Code provided that the borough council must publish every proposed ordinance once in one newspaper of general circulation in the borough not more than sixty days nor less than seven days prior to passage. Publication of a proposed ordinance must include either the full text or the title and a brief summary prepared by the borough solicitor setting forth all of the provisions in reasonable detail.
In a December 6, 2010 motion for immediate temporary relief, Appellant alleged that the Parking Prohibition was having an immediate adverse effect on his apartment business because tenants were complaining about the parking arrangements, two tenants indicated that they would vacate his building at the end of their current leases, and his tenants faced a dangerous trek to the building from their cars on snowy and icy days. (R.R. at 3a.)
On March 16, 2011, the Borough published notice in the Lebanon Daily News that the Borough Council would consider Ordinance 731 at its March 28, 2011 meeting or at a meeting within 60 days of the publication date. The notice stated that section 2 of Ordinance 731 would reaffirm the Parking Prohibition on Shellbark Alley, and identified the alley as "Shellbark Alley, formerly known as Unmarked Alley parallel and to the west of South Lincoln Street, between Main Street to Cherry Street." (R.R. at 22a.) On March 28, 2011, the trial court granted Appellant an emergency injunction to stay enforcement of the Parking Prohibition in Ordinance 725, and barred the Borough from voting on Ordinance 731.
Appellant presented the Borough Council with the court order at the March 28, 2011 meeting and attended a portion of the meeting, but he left when he was allegedly informed that only Borough residents would be permitted to speak. The Borough Council postponed voting on Ordinance 731 in response to the court-ordered injunction. The emergency injunction was not reissued and expired after 5 days in accordance with the Pennsylvania Rules of Civil Procedure. The Borough Council enacted Ordinance 731 on April 25, 2011, at its next monthly meeting. In relevant part, section 2 of Ordinance 731 re-enacted the Parking Prohibition on Shellbark Alley that was originally enacted in section 1 of Ordinance 725.
Rule 1531(d) provides, "[a]n injunction granted without notice to the defendant shall be deemed dissolved unless a hearing on the continuance of the injunction is held within five days after the granting of the injunction or within such other time as the parties may agree or as the court upon cause shown shall direct." Pa. R.C.P. No. 1351(d).
On May 13, 2011, Appellant filed a second amended complaint, challenging the procedural validity of Ordinance 725, and, on May 17, 2011, he filed another motion for a preliminary injunction. On August 9, 2011, the trial court denied Appellant's motion for a preliminary injunction and dissolved the emergency injunction granted by the March 28, 2011 order. Appellant then appealed to this Court. By order dated October 20, 2011, we granted the trial court's request to remand this matter for a hearing. The trial court conducted a hearing on December 30, 2011. On January 6, 2012, the trial court denied Appellant's request for an injunction.
On January 14, 2012, the Borough published a notice in the Lebanon Daily News of proposed Ordinance 740, which in part reaffirmed the Parking Prohibition on Shellbark Alley. On January 20, 2012, Appellant filed another motion for an emergency preliminary injunction to stay enforcement of the Parking Prohibition and to enjoin the Borough from enacting Ordinance 740, which the trial court denied on January 23, 2012. The Borough Council enacted Ordinance 740 on January 24, 2012. Appellant again appealed to this Court.
Although the trial court granted Appellant's motion for leave to amend his complaint to include challenges to Ordinance 740, Appellant did not file additional pleadings. The case is now ripe for disposition by this Court.
Our scope of review over a trial court's denial of a preliminary injunction is limited to determining if there existed any reasonable grounds for the action of the trial court or whether any rule of law it relied upon was erroneous or misapplied. Marx v. Lake Lehman School District, 817 A.2d 1242 (Pa. Cmwlth. 2003). --------
Our careful review of the record confirms that Appellant presented no evidence demonstrating that the requirements for a preliminary injunction were satisfied. We reject Appellant's contention that allegations of procedural irregularity in the adoption of an ordinance are sufficient to meet these requirements. Appellant's assertion that an alleged failure to provide adequate notice for a proposed ordinance, Ordinance 725, precludes the Borough from correcting the alleged defect is contrary to law. Instead, we agree with the trial court that the Borough's subsequent adoption of Ordinance 731 renders Appellant's challenge to Ordinance 725 moot.
Because this Court agrees with the trial court's January 6, 2012 opinion, and further concludes that Judge Charles T. Jones, Jr.'s opinion thoroughly discusses and properly disposes of the arguments raised on appeal to this Court, we adopt the analysis in Judge Jones' opinion for purposes of appellate review.
Accordingly, we affirm on the basis of the trial court's well-reasoned opinion in David A. Romanoski v. Borough of Palmyra (No. 2010-02871, filed January 6, 2012).
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 1st day of February, 2013, we affirm the January 6, 2012 order of the Court of Common Pleas of Lebanon County denying Appellant's motion for a preliminary injunction. This Court hereby adopts the analysis in Judge Charles T. Jones, Jr.'s opinion and affirms the trial court's order on the basis of the opinion issued in David A. Romanoski v. Borough of Palmyra (No. 2010-02871, filed January 6, 2012).
/s/_________
PATRICIA A. McCULLOUGH, Judge