Berg v. Georgetown Builders, Inc.

• Decision Date: 17 April 2003
• Citation: 822 A.2d 810
• Parties: Gerald S. BERG and Moira A. Berg, H/W, and Barry S. Yaches, Appellants, v. GEORGETOWN BUILDERS, INC. and Charles S. Sweet and Ann R. Sweet, H/W and William Boyle and Barbara Boyle, H/W, Appellees.
• Court: Pennsylvania Superior Court

822 A.2d 810

Gerald S. BERG and Moira A. Berg, H/W, and Barry S. Yaches, Appellants, v. GEORGETOWN BUILDERS, INC. and Charles S. Sweet and Ann R. Sweet, H/W and William Boyle and Barbara Boyle, H/W, Appellees.

Superior Court of Pennsylvania.

Argued September 24, 2002.

Filed April 17, 2003.

Barry S. Yaches, Wyncote, for appellants.

G. Michael Carr, Doylestown, for Georgetown, appellee.

BEFORE: McEWEN, P.J.E., TODD,

and MONTEMURO¹, JJ.

OPINION PER CURIAM:

¶ 1 Appellants, Moira A. and Gerald S. Berg, were the unsuccessful plaintiffs in an equity action filed against appellees, and appellant Barry S. Yaches was their attorney.² They bring this appeal³ from an order of the trial court assessing counsel fees against them under 42 Pa.C.S. § 2503. We are constrained to reverse the order of the trial court.

¶ 2 In 1992, appellee, Georgetown Builders (hereinafter Georgetown), submitted to Buckingham Township (hereinafter Township) a preliminary subdivision plan for development of the Ash Mill subdivision, proposing to carve 13 lots out of the site on which single-family detached homes were to be built. According to the Township's subdivision ordinance, Georgetown was required as part of its submission to provide a site plan illustrating, inter alia, all proposed natural resource disturbances on the site. Georgetown requested and was granted a waiver of that requirement. In its place the Township required Georgetown to submit a proposed natural resource disturbance plan as each lot in the subdivision was developed.

¶ 3 The Township, on August 12, 1992, granted final approval to the Ash Mill subdivision, with the condition that the natural resource disturbance calculations be done "on a lot-by-lot basis." Georgetown was also required to comply with all other existing zoning restrictions. Consequently, in developing this site Georgetown was required to comply with the Township's zoning requirement that no more that 20% of the forested area of the subdivision was permitted to be altered, re-graded, cleared, or built upon.

¶ 4 Since the Township permitted the natural resource disturbance calculations to be delayed until each lot was developed, a note was placed upon the final recorded plan to inform purchasers that an individual plot plan had to filed with the Township engineer prior to the issuance of a building permit. That note, designated "Note 8", provided:

THE ALLOWABLE RESOURCE DISTURBANCE OF THE LOTS HAS BEEN CALCULATED ON SHEET 2 OF 8. THE DISTURBANCE CAN BE LOCATED ANYWHERE ON THE LOTS, PROVIDED THE APPROPRIATE RESOURCE RESTRICTIONS ARE COMPLIED WITH. ACTUAL DISTURBANCE ON THE SINGLE FAMILY LOTS SHALL BE IDENTIFIED ON AN INDIVIDUAL BASIS VIA SUBMISSION OF PLOT PLANS FOR EACH LOT. THE TOWNSHIP ENGINEER SHALL REVIEW EACH INDIVIDUAL LOT DEVELOPMENT PLAN PRIOR TO ISSUANCE OF A BUILDING PERMIT. DISTURBANCE ON EACH LOT SHALL OCCUR SUCH THAT THE TOTAL DISTURBANCE ON ALL LOTS WILL NOT EXCEED MAXIMUM ALLOWABLE DISTURBANCE FOR THE SITE. ALL RESOURCE RESTRICTIONS SHALL RUN WITH THE LAND AND BE BINDING ON THE PRESENT AND FUTURE OWNERS AND/OR LESSEES.

Final Subdivision Plan, Exhibit P-3. (emphasis added). ¶ 5 Following the recordation of the final plans, Georgetown built a single home on combined lots 3 and 4, and a single home on lot 5. Georgetown sold lots 1, 2, 6, 8, 9, and 10 to another developer, Richard D. Zaveta, Jr. (hereinafter Zaveta), who constructed homes on those lots. The Bergs purchased their home on lot 10 from Zaveta, and took possession of their home on November 6, 1993. The deed from Zaveta to the Bergs expressly incorporated the final subdivision recorded plan.

¶ 6 In 1995, Georgetown submitted plot plans for the last three lots (i.e., lots 7, 11, and 12). The Township engineer, however, by letter dated November 29, 1995, notified Georgetown that development of those lots would result in the removal of more than the allowable number of trees. Georgetown and the Township submitted competing calculations as to the number of trees that had been removed, but ultimately both parties agreed that Georgetown's development plans for the final three lots would result in Georgetown exceeding the 20% maximum allowable disturbance. Because the Township would not issue building permits for the last three lots, Georgetown applied to the Township's Zoning Hearing Board (hereinafter Board) for a variance from the terms of the zoning ordinance.

¶ 7 Following a public hearing on March 15, 1996, the Board granted Georgetown's request for a variance, and gave Georgetown permission to clear up to 10% of the mature trees on lot 7, and 15% on lots 11 and 12. The Board also required Georgetown to plant up to 53 new trees in the Township, with the residents of the Ash Mill subdivision having the option to request the planting of a pro rata share of the trees upon their lots prior to the trees being planted elsewhere in the Township. Georgetown was also required to donate $75,000, minus the cost of the 53 trees, to the Land Preservation Fund of Buckingham Township. Pursuant to the terms of the variance, Georgetown proceeded to cut down trees on lots 7, 11, and 12.

¶ 8 Although appellant Gerald Berg had formally intervened in the zoning proceedings and received a copy of the Board's decision, he did not appeal the grant of a variance. Craig Smith, however, an owner of property adjacent to the Ash Mill subdivision and also a party to the proceedings, did file a timely appeal of the grant of the variance. Moreover, in August, 1996, Smith also instituted a separate equity action in the Court of Common Pleas of Bucks County seeking to halt further development on the Ash Mill site.

¶ 9 In September, 1996, following a settlement agreement between Georgetown and Craig Smith, whereby Georgetown agreed to pay Smith $37,500.00, Smith withdrew all of his pending claims.

¶ 10 Thereafter, on November 19, 1996, the action giving rise to the present litigation was initiated. The Bergs filed a complaint in equity and a petition for a preliminary injunction against Georgetown and the three remaining lot owners. In their complaint the Bergs sought as relief an order: (a) enjoining Georgetown and the other named defendants from "violating the terms of the covenants set forth in the notes to the plan in this matter and recorded in the office of the Recorder of Deeds of Buck County;" (b) compelling Georgetown and the other named defendants "to replace and replant ... that portion of the forest that ha[d] already been cleared on lots 7, 11 and 12 of the development"; (c) compelling Georgetown and the other named defendants "to remove any structures that ha[d] already been erected on lots 7, 11 and 12 of the development"; and (d) granting "such other relief as the court may deem just and proper." The petition for a preliminary injunction sought a temporary order granting the above requested relief, as well as a claim for damages. Both the complaint and petition for preliminary injunctive relief were grounded upon the restrictions contained in "Note 8" that appeared on the recorded subdivision plans.

¶ 11 The trial court, on December 3, 1996, held a hearing on the request for a preliminary injunction and, following the receipt of evidence and argument of counsel, dismissed the petition without comment.⁴ No appeal was filed from this denial of preliminary relief.

¶ 12 One year thereafter, on December 15, 1997, the trial court commenced a three-day trial on the merits of the Bergs' equity complaint. Following the presentation of evidence the trial court ordered the parties to submit proposed findings of fact and conclusions of law, along with supporting legal memoranda. See: N.T. December 18, 1997, pp. 79-80. The parties complied with the order of the trial court, and after consideration of the evidence and arguments of counsel, the trial court, on June 17, 1998, issued a "Decree Nisi" entering "judgment ... in favor of defendants and against plaintiffs [the Bergs]."

¶ 13 The only exceptions to the Decree Nisi were filed by the owners of lot 11, William and Barbara Boyle,⁵ who sought a ruling on their counterclaim against the Bergs for counsel fees. These exceptions were denied,⁶ and the Decree Nisi made final on July 31, 1998.⁷ No appeals were filed from this Final Decree.⁸

¶ 14 Thereafter, petitions were filed by the Boyles and Georgetown seeking counsel fees. The Boyles sought fees from both Georgetown (on an indemnity theory) and the Bergs, while Georgetown only sought fees from the Bergs. The trial court, on May 11, 1999, denied the Boyles' claim against Georgetown, but, on July 28, 1999, granted the Boyles' claim for attorney fees from the Bergs. Following the assessments of the amounts due, the decrees were made final in December, 1999. It was from these final decrees that the first round of appeals were taken to this Court, even though at the time of these appeals the trial court had not yet ruled on Georgetown's petition for fees.

¶ 15 The Boyles' appeal, which was from the December 20, 1999, final decree denying their indemnity claim against Georgetown, was docketed in this Court at No. 138 EDA 2000. The Bergs' appeal, which was from the final decree of December 16, 1999, holding them responsible for the Boyles' attorney fees, was docketed in this Court at No. 418 EDA 2000. These appeals were consolidated for disposition and, on December 29, 2000, a panel of this Court entered a Judgment Order, concluding that the decrees appealed from were not final because the trial court had not disposed of Georgetown's outstanding motion for attorney fees. Thus, pursuant to Pa.R.A.P. 341, the panel quashed the appeal and remanded the cases to the trial court for entry of a final decree that would dispose "of all parties and claims."

¶ 16 On remand the trial court addressed the outstanding petition of Georgetown and, on February 5, 2002, entered an award against the Bergs and their attorney, Barry S. Yaches, in the amount of...