Com. v. Harchelroad

• Decision Date: 17 March 1993
• Citation: 623 A.2d 878,154 Pa.Cmwlth. 259
• Parties: COMMONWEALTH of Pennsylvania v. Fred P. HARCHELROAD. Appeal of MUNICIPALITY OF PENN HILLS.
• Court: Pennsylvania Commonwealth Court

Page 878

623 A.2d 878

154 Pa.Cmwlth. 259

COMMONWEALTH of Pennsylvania v. Fred P. HARCHELROAD Appeal of MUNICIPALITY OF PENN HILLS.

Commonwealth Court of Pennsylvania.

Argued Oct. 22, 1992.

Decided March 17, 1993.

August C. Damian, for appellant.

Gary Milnes, for appellee.

Before PELLEGRINI and FRIEDMAN, JJ., and NARICK, Senior Judge.

FRIEDMAN, Judge.

The Municipality of Penn Hills (Municipality) appeals from an order of the Court of Common Pleas of Allegheny County which relied upon the concept of laches to determine that Harchelroad had not violated the Penn Hills Zoning Ordinance. We reverse and remand.

On July 6, 1989, the Municipality issued a Notice of Violation to Harchelroad for violating the zoning ordinance by conducting commercial activities on property in an R-2 residential district. Harchelroad received this notice on July 8, 1989. On August 2, 1989, the Code Enforcement Department filed a criminal complaint ¹ with the district justice, accusing Harchelroad of violating the penal laws of the Commonwealth of Pennsylvania through his violation of the Penn Hills Zoning Ordinance. Following summary conviction on December 20, 1990, Harchelroad filed a Notice of Appeal from the "sentence of $50.00 fine and court costs." (R.R. at 4a.) On appeal, the Allegheny County Court of Common Pleas found that the equitable defense of laches applied and, therefore, that Harchelroad had not violated the zoning ordinance.

The Municipality filed a Motion for Reconsideration. After hearing the Motion for Reconsideration, the trial court reaffirmed its original order. ² The Municipality appeals. ³

Before the trial court, Harchelroad defended against his conviction on purely equitable grounds, asserting that he had operated a commercial enterprise on his property in a residential zone without interference from the Municipality since 1953 and that the doctrine of laches barred the Municipality from interfering with his continued commercial use of the property. Secondly, Harchelroad argued that by virtue of the Municipality's failure to attack his commercial use for a substantial period of time, he had a vested right to continue that use. Relying on Heidorn Appeal, 412 Pa. 570, 195 A.2d 349 (1963), the trial court agreed, stating that "[t]o find against [Harchelroad] would be to work an inequity." (R.R. at 143a.)

The critical issue presented in this appeal is whether the trial court erred in relying on the equitable defense of laches to decide an appeal from a summary conviction for violation of a zoning ordinance. ⁴

Although on the surface Heidorn and this case raise similar issues, they are easily distinguished. The relevant similarities between Heidorn and this case are that each involved a long term violation of a zoning ordinance with which the municipality had not interfered and that in each case the property owner was subsequently informed of the violation. Here the similarities end. Heidorn was not an appeal from an enforcement proceeding. Rather, upon receiving notice that an overhang on their house encroached into the required setback, the Heidorns took immediate action, first applying to the zoning board of adjustment for a variance. When the board denied the variance, the Heidorns appealed to the court of common pleas which granted the application on equitable grounds, a decision later affirmed by our supreme court.

Harchelroad, on the other hand, took no action following his Notice of Violation. Instead, he sat on his rights until the Municipality proceeded with an enforcement action. Harchelroad then raised the defense of laches. In similar situations, our supreme court has held that it is improper to raise zoning issues in an enforcement proceeding because doing so is "contrary to the legislative directive in establishing both a procedure as well as a forum for zoning matters." Philadelphia v. Budney, 396 Pa. 87, 89, 151 A.2d 780, 781 (1959). See also Commonwealth ex rel. Ransom Township v. Mascheska, 213 Pa.Superior Ct. 195, 245 A.2d 721 (1968).

Harchelroad's case is simply an appeal from a summary conviction for the violation of:

illegal commercial use of property zoned R-2 single family Residential--Section 5.3 of Ordinance # 1617--Vacant lot between 214-134 Tilford Rd.

Violations consist of; [sic]

1. Parking tractor and trailer on property.

2. Storing of slag, stone and other construction material.

3. Parking of damaged trailer on lot.

(R.R. at 3a.)

--no more, no less.

It is possible to defend against these violations by proving that: 1) the property at issue is zoned for commercial purposes; 2) section 5.3 of Ordinance No. 1617 is factually inapplicable; or 3) Harchelroad did not use the property for the enumerated commercial purposes on or about July 25, 1989. However, equitable defenses such as laches, vested rights or variance by estoppel cannot be raised in an enforcement proceeding. An action in equity will not lie to question the validity of the ordinance or its application unless the aggrieved party exhausts his statutory remedies. Pittsburgh Outdoor Advertising Company v. Clairton, 390 Pa. 1, 9, 133 A.2d 542, 546 (1957). Harchelroad could have properly raised the equitable defenses he now argues only by following the procedures set forth in the MPC. ⁵

The official Notice of Violation received by Harchelroad stated that "[f]ailure to comply with the requirements of this official notice, unless extended by appeal to the Zoning Hearing Board, constitutes a violation and may subject you to possible fines and penalties...." (R.R. at 1a.) Once Harchelroad ignored the Notice of Violation and failed to appeal to the Zoning Hearing Board, he became subject to the enforcement proceeding where equity could not lie as a defense.

The trial court did not adjudicate this case on its merits but instead relied on an equitable affirmative defense not available in an enforcement proceeding. Because the defense of laches is not available here and because the trial court never ruled on whether the evidence was sufficient to convict, Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), we reverse and remand for an adjudication on the merits based on the evidence of record.

ORDER

AND NOW, this 17th day of March, 1993, the order of the Court of Common Pleas of Allegheny County, dated September 27, 1991, is reversed and remanded.

Jurisdiction relinquished.

1 Pursuant to section 617.2 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by, Act of December 21, 1988, P.L. 1329, 53 P.S. § 10617.2 (MPC), enforcement proceedings are civil proceedings. The Municipality's ordinance did not reflect the 1988 changes to the MPC; rather it was enacted under the prior enabling legislation which did not specify whether such proceedings are civil or criminal. However, because section 103 of the MPC, 53 P.S. § 10103, provides that the provisions of the amended act "shall not affect ... any suit or prosecution pending or to be instituted, to enforce any ... ordinance ... enacted under [the prior enabling act]", the fact that the enforcement proceeding was initiated by a private criminal complaint rather than a civil complaint is not fatal to the Municipality's action against Harchelroad.

Use of the private criminal complaint will not prejudice Harchelroad because although prosecutions under municipal ordinances are civil, not criminal actions, Philadelphia v. Home Agency, Inc., 4 Pa.Commonwealth Ct. 174, 285 A.2d 196 (1971), the Rules of Criminal Procedure govern these summary actions, City of Philadelphia v. Pennrose Management Company, 142 Pa.Commonwealth Ct. 627, 598 A.2d 105 (1991), appeal denied, 530 Pa. 661, 609 A.2d 169 (1992), and defendants in municipal enforcement actions are afforded the same protections as defendants in criminal proceedings. In re Investigating Grand Jury, 496 Pa. 452, 437 A.2d 1128 (1981). See also Commonwealth v. Carter, 36 Pa.Commonwealth Ct. 569, 377 A.2d 831 (1977), modified, 36...