E. Joos & A. Joos, h/w & M.E. Joos v. Bd. of Supers. of Charlestown Twp. ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric Joos and Amanda Joos, h/w :
and Mary Ellen Joos, :
Appellants :
:
v. : No. 1078 C.D. 2019
: Argued: June 8, 2020
Board of Supervisors of Charlestown :
Township :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: July 31, 2020
Mary Ellen Joos, Eric Joos, and Amanda Joos (Landowners) appeal an
order of the Court of Common Pleas of Chester County (trial court) that affirmed the
condition that the Board of Supervisors of Charlestown Township (Board of
Supervisors) imposed upon Landowners’ proposed lot line revision. The condition
required Landowners to maintain the existing shared driveway in its current
configuration and prohibited the construction of a second driveway. Landowners
argue, first, that the Board of Supervisors deviated from the procedures set forth in
Sections 503(9) and 508(2) of the Pennsylvania Municipalities Planning Code
(MPC)1 for imposing conditions on a plan. Second, Landowners argue that
Charlestown Township’s (Township) Subdivision and Land Development
Ordinance (SALDO)2 did not authorize the driveway condition. Finally,
Landowners argue that the trial court erred in denying their petition for contempt
1
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10503(9), 10508(2).
2
CHARLESTOWN TOWNSHIP MUNICIPAL CODE, Chapter 22, SUBDIVISION AND LAND DEVELOPMENT
ORDINANCE, as amended, added by Ordinance of May 3, 1982.
filed against the Board of Supervisors. We reverse the trial court’s affirmation of
the Board of Supervisors’ driveway condition but affirm the trial court’s denial of
Landowners’ contempt petition.
Background
Mary Ellen Joos owns 14.5 acres of land (Parcel A) located at 18
Tiptonbrook Lane in Charlestown Township. Eric and Amanda Joos own 22 acres
of land (Parcel B) at 26 Tiptonbrook Lane. The two parcels are contiguous. A
private driveway over Parcel A provides access to the residence thereon and to the
residence on Parcel B. Tiptonbrook Lane connects to Church Road.
Landowners filed a “Preliminary/Final Subdivision Plan Lot Line
Revision Joos Property” (Plan) to move the property line between Parcel A and
Parcel B. Reproduced Record at 5a-9a (R.R.__). The Plan provided Parcel A with
more yard space, thereby reducing Parcel B’s frontage on Church Road.
Daniel Wright, the Township engineer, reviewed the Plan and
commented thereon. Wright’s letter to the Township Planning Commission of
August 26, 2015, stated as follows:
The net lot area calculation required by Zoning Ordinance 27-
405.1 shall be provided on the plans. The net lot area calculation
requires the removal from the gross lot area 75% of all floodway,
flood fringe and general floodplain areas described in Zoning
Ordinance 27-1103.5.C and 75% of aggregate area of all 100-
year floodplains, wetland areas and 50-foot wetland buffers,
areas of very steep slope as defined by Zoning Ordinance 27-
1202.3.C, 25% of areas of steep slope as defined by Zoning
Ordinance 27-1202.3.B, areas within existing, public, or private
easements or rights-of-way, and any right-of-way or easement
connecting an interior lot to a road or street. While the net lot
area is listed on Sheet 1, the actual calculation shall be provided
on the plans.
2
Original Record (O.R.), Item 3, Exhibit 5. In short, his comment was limited to the
net lot area calculation.
On October 5, 2015, the Board of Supervisors held a meeting on the
Plan. The meeting minutes stated the following:
[Landowners’ engineer] was present on behalf of [Landowners]
to present the [Plan] for a lot line revision of two parcels (36.6
acres) on Tiptonbrook Lane. Telephone lines show a natural
delineation where the proposed lot is to be divided, and there is
also a spot for a potential, but not expected driveway. No
construction is planned.
Five waivers were requested [regarding wetlands; grading; soil,
erosion and sedimentation control plan; and a planning module].
[Supervisor] Kuhn moved to approve the lot line revision plan
dated December 20, 2014 (Sheet 1) and April 23, 2015 (Sheets 2
and 3), with five waivers and conditions described by Mr. Wright
along with a provision that there be a shared access to the two
lots. [Supervisor] Philips seconded. [Supervisor] Piliero called
for discussion, and there being none, called the vote. All were in
favor.
R.R. 12a-13a (emphasis added).
On October 19, 2015, the Board of Supervisors issued a written
decision approving the Plan with three conditions:
1. The shared driveway located on [Parcel] A accessing Church
Road and serving the dwelling on [Parcel] B shall remain in its
current configuration and no additional driveway or driveways
accessing Church Road shall be constructed on [Parcel] B.
2. The submission of appropriate performance, maintenance
and/or escrow financial guarantees as may be applicable, and
agreements, all in a form acceptable to the Township Solicitor.
3. The payment of any outstanding review fees, pursuant to
Section 503 of the [MPC], including, but not limited to,
3
professional consultations, engineering review and reporting,
legal documentation and submittal, legal research and other legal
services, incurred by the Township, within thirty (30) days after
invoicing.
R.R. 16a-17a (emphasis added). The written decision stated that the conditions were
“fully acceptable to [Landowners] based upon communications and discussions
which occurred during the meeting of the Board of Supervisors[.]” R.R. 16a.
When Landowners objected to the driveway condition, the Board of
Supervisors agreed to reconsider. At the November 2, 2015, meeting, Landowners
explained that the driveway condition was unnecessary because they did not request
approval of a new driveway. The Board of Supervisors advised Landowners either
to “resubmit with modifications or appeal last month’s approval.” Supplemental
Reproduced Record at 3b (S.R.R. ___).3
On November 18, 2015, Landowners appealed to the trial court. That
same day, the prothonotary issued a Writ of Certiorari, commanding the Board of
Supervisors to return the record within 20 days. On February 14, 2019, Landowners
filed a contempt petition because the Board of Supervisors had not returned the
record in accordance with the writ. On February 15, 2019, the Board of Supervisors
filed the record, and on April 30, 2019, the trial court denied the contempt petition.
On May 14, 2019, the trial court denied Landowners’ appeal without taking
additional evidence.
In reaching its conclusion, the trial court rejected Landowners’
argument that the Board of Supervisors’ decision of October 19, 2015, did not
3
With respect to Landowners’ objection to the driveway condition, Supervisor Kuhn stated that
he was “against any further road cuts for Church Road.” S.R.R. 3b. Supervisor Philips opined
that the driveway condition would not affect the property’s resale value. Supervisor Willig
suggested a possibility of rerouting the shared driveway. Id.
4
comply with the notice requirements of the MPC. The trial court held that Section
508(2) of the MPC, 53 P.S. §10508(2), applies when a municipality denies a plan
application and not when it approves an application with conditions, as it did in the
case of Landowners’ Plan. The trial court rejected Landowners’ argument that the
Board of Supervisors was required to vacate the driveway condition or deny the Plan
once it learned that Landowners objected to the condition. Trial Court op. at 5 (citing
Koller v. Weisenberg, 871 A.2d 286 (Pa. Cmwlth. 2005)).
The trial court concluded that Section 22-506 of the SALDO, which
establishes design standards for driveways, authorized the driveway condition.
Specifically, Section 22-506(5) states that “[t]he edge of the driveway shall be
located not less than 40 feet from the tangent point of the curb radius of corner lots,”
SALDO §22-506(5), and the trial court found that Parcel B was a “corner lot” under
Section 22-202 of the SALDO.4 Alternatively, the trial court concluded that
Landowners applied for “a spot for a potential [] driveway.” Trial Court op. at 5.
For this finding, the trial court cited the minutes of the meeting on October 5, 2015,
where a Board Supervisor stated that “there is also a spot for a potential, but not
expected driveway.” R.R. 13a.
Landowners requested reconsideration, which the trial court granted on
May 29, 2019. Following oral argument, on July 9, 2019, the trial court denied
reconsideration and reinstated its May 14, 2019, order. On August 6, 2019,
Landowners appealed to this Court.
4
Section 22-202 of the SALDO defines a “corner lot” as:
A lot or parcel of land abutting upon two or more streets including shared driveways
at their intersection, or upon two parts of the same street including shared driveways
forming an interior angle of less than 135°.
SALDO §22-202.
5
Appeal
On appeal,5 Landowners raise three issues. First, they argue that the
trial court erred in holding that the procedural requirements set forth in Sections
503(9) and 508(2) of the MPC, 53 P.S. §§10503(9), 10508(2), did not apply to their
application. Second, they argue that the trial court abused its discretion in upholding
the driveway condition imposed on their request for a lot line revision. Third, they
argue that the trial court erred in not sanctioning the Board of Supervisors’ willful
and prolonged contempt of the Writ of Certiorari. We address these issues seriatim.
Analysis
I. Procedural Challenge
Landowners argue that under Section 503(9) of the MPC, a
municipality lacks authority to impose a condition unless it is agreed to by the
applicant. Because Landowners did not agree to the driveway condition, the Board
of Supervisors lacked the authority to impose it on their Plan. Alternatively,
Landowners argue that under Section 508(2) and (3) of the MPC, the Board of
Supervisors should have issued “an express, written” denial that referred to the
SALDO. Landowners Brief at 15.
The MPC authorizes a municipality to regulate the subdivision and
development of land by ordinance. See Section 501 of the MPC, 53 P.S. §10501.6
Section 503(9) of the MPC authorizes a municipality to adopt a SALDO authorizing
5
Generally, where the trial court takes no additional evidence, this Court’s review determines
whether the governing body has committed an error of law or abused its discretion. Koller, 871
A.2d at 289 n.2.
6
The MPC authorizes land development through the enactment of a subdivision and land
development ordinance and provides that the municipality must exercise all powers granted “in
accordance with the provisions of the subdivision and land development ordinance.” Section 501
of the MPC, 53 P.S. §10501.
6
the imposition of conditions upon land development plans. It states, in pertinent
part, as follows:
The subdivision and land development ordinance may include,
but need not be limited to:
***
(9) Provisions for the approval of a plat, whether preliminary or
final, subject to conditions acceptable to the applicant and a
procedure for the applicant’s acceptance or rejection of any
conditions which may be imposed, including a provision that
approval of a plat shall be rescinded automatically upon the
applicant’s failure to accept or reject such conditions within
such time limit as may be established by the governing
ordinance.
53 P.S. §10503(9) (emphasis added). Section 508(2) of the MPC governs the
disapproval of a subdivision and land development plan. It states:
When the application is not approved in terms as filed the
decision shall specify the defects found in the application and
describe the requirements which have not been met and shall, in
each case, cite to the provisions of the statute or ordinance relied
upon.
53 P.S. §10508(2) (emphasis added). Further, under Section 508(3), a
municipality’s failure to render a decision and communicate it to the applicant
“within the time and in the manner required herein shall be deemed an approval of
the application in terms as presented….” 53 P.S. §10508(3).
This Court has held that Section 508(2) and (3) of the MPC apply only
where a municipality denies a plan. See Koller, 871 A.2d at 292 (citing Bonner v.
Upper Makefield Township, 597 A.2d 196 (Pa. Cmwlth. 1991)).7
7
In Bonner, this Court explained:
7
In Koller, the township approved a developer’s preliminary subdivision
plan with conditions, to which he objected and appealed. The trial court held that
the township was required to cite to the ordinance provisions that authorized the
conditions. Because the township did not do so, the trial court held that the plan
conditions were invalid and consequently the developer was entitled to a deemed
approval of the plan under Section 508(3) of the MPC. This Court reversed. We
held that the MPC does not require a township to support each condition with a
citation to the relevant statute or ordinance. We further explained that where the
conditions are not accepted by an applicant, the conditional approval constitutes a
rejection. The aggrieved applicant’s remedy is to file a land use appeal to challenge
the condition.
Likewise, in Stauffer v. Weisenberg Township Board of Supervisors,
934 A.2d 783 (Pa. Cmwlth. 2007), the township approved the landowner’s plan with
conditions to which she objected. Some of the conditions were supported by
references to the township ordinance, but others were not. The landowner argued,
inter alia, that the township’s failure to comply with the notice requirements of
Section 508(2) of the MPC rendered the conditions void. This Court held that the
Although the phrase “not approved in terms as filed” in Section 508(2) could be
construed to refer to the imposition of a condition, the rest of that sentence speaks
of specification of defects and citation of provisions relied upon in connection with
a “decision” on the application. Section 107 of the MPC, 53 P.S. §10107, defines
“decision” as the “final adjudication of any board or other body granted jurisdiction
under any land use ordinance or this act….” (Emphasis added.) The “decision” in
Section 508(2), therefore, is the actual denial of the application, rather than the
imposition of a condition that might or might not precede a denial, depending on
whether the applicant accepts the condition. In our view Section 508(2) does not
require citation to a provision relied upon in connection with the imposition of a
condition.
Bonner, 597 A.2d at 200 (emphasis in original).
8
landowner’s sole remedy was a land use appeal, and that the landowner could not
assert the “deemed approval” remedy in Section 508(3) of the MPC. This is because
“citations to the SALDO, or lack thereof, are of no moment.” Id. at 786.
With these principles in mind, we turn to Landowners’ argument that
the Board of Supervisors’ power to impose a condition was “predicated upon
codification of the requisite procedure” in Section 503(9) within the Township’s
SALDO. Landowners Brief at 17. Absent the adoption of a SALDO with the
provisions set forth in Section 503(9), Landowners argue that the Board of
Supervisors lacked authority to impose a condition upon a plat plan, except where
the condition is expressly accepted by an applicant. Here, Landowners did not
accept the driveway condition.
The MPC does not require a municipality’s ordinance to contain the
provisions set forth in Section 503 of the MPC. Rather, Section 503(9) of the MPC
states that a municipality “may include” in its SALDO the procedures set forth
therein. 53 P.S. §10503(9) (providing for automatic rescission of a plan approval
where the applicant rejects the condition imposed on the plan). The Township chose
not to include an automatic rescission provision in its SALDO.
Section 22-303(1)(H) of the Township’s SALDO states, in relevant
part, as follows:
In acting upon the preliminary plan, the Board shall review the
report and/or written comments of the Planning Commission,
Township Engineer, planning consultant and County agencies,
and comments from public hearings, if any, to determine its
conformance to this chapter and all other Township ordinances,
codes, regulations, plans and maps. The Board may modify any
subdivision or land development plan requirement upon the
recommendations of the Planning Commission, and may specify
conditions, changes or additions thereto, which it deems
necessary. Further, the Board may make its decision to grant
9
approval of a preliminary plan subject to conditions, changes or
additions; in the case where the Planning Commission has
concluded that the preliminary plan meets all requirements of a
final plan, then upon the recommendation of the Planning
Commission the Board of Supervisors may consider the
preliminary plan as a final plan and may act thereupon
accordingly.
SALDO §22-303(1)(H) (emphasis added). In accordance with this provision, the
Board of Supervisors granted Landowners an “approval of a preliminary plan subject
to conditions.” Id. We reject Landowners’ argument that because the Township’s
SALDO did not contain the procedures set forth in Section 503(9) of the MPC, the
Board of Supervisors lacked authority to impose a condition on the Plan.
Landowners contend that they were entitled to “an express, written
denial” by the Board of Supervisors that specified the defects found in the
application; described the requirements not met; and cited to the provisions of the
SALDO or the statute relied upon. Landowners Brief at 15. They base this argument
on Section 508(2) of the MPC, which requires this specificity when an application
is disapproved.
Landowners’ argument cannot be reconciled with Koller and Stauffer.
The Board of Supervisors approved Landowners’ Plan with the driveway condition
that the Landowners did not accept. Landowners’ sole remedy was to file a land use
appeal, and they did so. We decline to revisit the merits of Koller and Stauffer.
II. Driveway Condition
Landowners argue, next, that the driveway condition imposed by the
Board of Supervisors was not authorized by the SALDO. The trial court held that
the driveway condition was based upon the design standards for driveways set forth
in Section 22-506(5) of the SALDO. The driveway standards, however, bear no
10
relation to Landowners’ lot line revision. In any event, Section 22-506(5) is
inapplicable because Parcel B is not a “corner lot.” SALDO §22-506(5).
Landowners further argue that the trial court erred in pointing to the minutes of the
meeting on October 5, 2015, because the Plan itself did not reference a driveway “in
any respect.” Landowners Brief at 22. The Board of Supervisors respond that the
Township is authorized to enact design standards for driveways, and “[e]ven a
cursory review” of the Plan shows that Parcel B is a “corner lot” subject to
restrictions in Section 22-506(5) of the SALDO. Board of Supervisors Brief at 14.
In reviewing conditions, the trial court “may consider whether the
conditions are appropriate to effectuate compliance with relevant statutes and
ordinances and, if so, whether the objected-to conditions are reasonable in order to
make the plan be in compliance.” Koller, 871 A.2d at 292. The trial court may
strike conditions that are not legal. Id.
In Stauffer, 934 A.2d 783, the landowner submitted a plan to subdivide
a 17.6-acre parcel into two lots. The township approved the plan with the conditions
that the landowner: (1) reconstruct, widen and pave an entire road even though her
property abutted only part of the length of that road and (2) construct driveways for
the two subdivided lots prior to their sale. The landowner objected to the conditions.
This Court held that neither condition was authorized by the township’s SALDO
and, thus, reversed the trial court.
The SALDO required a developer to pave a street that abuts a
development where “there is a reasonable relationship between the need for an ‘on-
site improvement’ of a street and the traffic created by a proposed subdivision or
land development.” Stauffer, 934 A.2d at 787 (quoting township ordinance). In
imposing the road improvement condition, the board of supervisors “made no
11
findings whatsoever about what, if any, increase in traffic will be created by two lots
where presently there exists one.” Id. at 788. Notably, the township engineer’s
report did not state that the second lot would generate such additional traffic as to
require improvement to the adjacent road. Stated otherwise, the record lacked
evidence to justify a “reasonable relationship” between the creation of a second lot
on the property and the need to pave the entire length of the road. Id.
In Stauffer, this Court also held that the township lacked authority to
require the construction of driveways for the two subdivided lots prior to their sale.
We rejected the township’s argument that the driveway condition was warranted by
the engineer’s report, noting that the report related to the grade of an existing
driveway and said nothing about ingress and egress. Further, the township’s
ordinance did not require the construction of a driveway before a lot could be sold.
The township was free to “refuse to issue a permit for the construction of a driveway
with too steep a grade if, and when, either [the landowner] or her successor-in-
interest seeks to build a driveway on one of the two lots.” Id. at 789.
Here, the Board of Supervisors points to Section 22-506(5) of the
SALDO as authority for its driveway condition. It states that “[t]he edge of the
driveway shall be located not less than 40 feet from the tangent point of the curb
radius of corner lot.” SALDO §22-506(5). Neither the trial court nor the Board of
Supervisors made any findings whatsoever about a “corner lot” or the “tangent point
of the curb radius.” In any case, Section 22-506(5) has nothing to do with the
relocation of lot lines. The Township engineer’s report did not comment on either
the existing shared driveway or a “potential driveway” on Parcel B. It commented
only on the “net lot area calculation.” O.R., Item 3, Exhibit 5. The Board of
12
Supervisors did not explain why the driveway condition was necessary to the lot line
relocation or make any factual findings relevant thereto.
Landowners’ application described the Plan as “Preliminary/Final
Subdivision Plan Lot Line Revision Joos Property.” R.R. 5a. The Board of
Supervisors’ meeting minutes of October 5, 2015, acknowledged that a driveway
was not part of the Plan. R.R. 13a. As in Stauffer, 934 A.3d 783, the permitting
process for driveways is the vehicle for addressing concerns, if any, about a future
driveway on Parcel B.8
We hold that the Board of Supervisors exceeded its authority under the
SALDO in imposing the driveway condition on Landowners’ Plan to revise a lot
line. The record does not support the driveway condition as “appropriate to
effectuate compliance with relevant statutes and ordinances” or “reasonable in order
to make the plan be in compliance.” Koller, 871 A.2d at 292. Accordingly, we
reverse the trial court’s order that affirmed the Board of Supervisors’ conditional
grant of the Plan.
III. Petition for Contempt
Finally, Landowners assert that the trial court abused its discretion in
refusing to impose sanctions for the Board of Supervisors’ willful and prolonged
contempt of the Writ of Certiorari to return the record.9 Ignoring the writ and the
8
For this reason, we need not address Landowners’ argument that the Board of Supervisors’
authority to review and permit driveways is preempted by Section 420 of the State Highway Law,
Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. §670-420.
9
In its Pennsylvania Rule of Appellate Procedure 1925(a) opinion, the trial court stated that the
contempt issue has been waived because Landowners did not file a separate appeal of the trial
court’s April 30, 2019, order denying the petition for contempt or raise the issue in their motion
for reconsideration. The trial court erred. Generally, a trial court’s refusal to enter an order holding
someone in contempt is interlocutory and not appealable when it is entered, unless “the refusal is
tantamount to denying to the party requesting the order relief to which that party has a right under
an earlier final order.” Commonwealth v. Guardiani, 310 A.2d 422, 424 (Pa. Super. 1973). A
13
local rules of civil procedure, the Board of Supervisors sat on the record for more
than three years. Landowners contend that they made efforts to attempt to resolve
the matter, but it was not until the contempt petition was filed that the Board of
Supervisors returned the record.
Landowners filed the petition for contempt on February 14, 2019. On
the same day, the trial court issued a rule to show cause10 that required the Board of
Supervisors to “file an answer to the petition within twenty (20) days of service upon
party needs to file only a single notice of appeal to secure review of prior non-final orders that are
made final by the entry of a final order. See K.H. v. J.R., 826 A.2d 863, 870-71 (Pa. 2003); PA.
R.A.P. 341, Note. Further, unlike a motion for post-trial relief under Pennsylvania Rule of Civil
Procedure No. 227.1, in which any issue not raised is waived for appeal purposes, see L.B. Foster
Co. v. Lane Enterprises, Inc., 710 A.2d 55 (Pa. 1998), Landowners’ motion for reconsideration
was filed under Rule of Appellate Procedure 1701, which provides that “the trial court or other
government unit may … (3) Grant reconsideration of the order which is the subject of the appeal
or petition[.]” PA. R.A.P. 1701(b)(3). The filing of a motion for reconsideration was not necessary
to preserve all issues for appellate review. On the other hand, a contempt order that actually
imposes sanctions is final and appealable when it is entered. Office of Attorney General, Bureau
of Consumer Protection v. Lubisky, 88 A.3d 328, 333 (Pa. Cmwlth. 2014).
10
Rule No. 206.7 provides the procedure after issuance of rule to show cause as follows:
(a) If an answer is not filed, all averments of fact in the petition may be deemed
admitted for the purposes of this subdivision and the court shall enter an appropriate
order.
(b) If an answer is filed raising no disputed issues of material fact, the court on
request of the petitioner shall decide the petition on the petition and answer.
(c) If an answer is filed raising disputed issues of material fact, the petitioner may
take depositions on those issues, or such other discovery as the court allows, within
the time set forth in the order of the court. If the petitioner does not do so, the
petition shall be decided on petition and answer and all averments of fact responsive
to the petition and properly pleaded in the answer shall be deemed admitted for the
purpose of this subdivision.
(d) The respondent may take depositions, or such other discovery as the court
allows.
PA. R.C.P. No. 206.7.
14
[the Board]” and to complete depositions “within forty-five days (45) of service
upon petitioner of the answer to the petition.” R.R. 138a.
The Board of Supervisors filed the return of the record on February 15,
2019, and an answer to the petition for contempt on March 6, 2019. In its answer,
the Board of Supervisors denied, inter alia, that it had “refused to return the record”
or “made any representations … that [it] had refused or was refusing to return the
record.” R.R. 162a-63a. Landowners filed a brief in support of the petition for
contempt on April 15, 2019, and the Board of Supervisors filed a brief in opposition
to the petition on April 23, 2019. No deposition or other form of discovery took
place. The trial court denied the petition for contempt on April 30, 2019.
It is well established that “[c]ourts possess an inherent power to enforce
their orders by way of the power of contempt.” Department of Environmental
Protection v. Cromwell Township, Huntingdon County, 32 A.3d 639, 653 (Pa. 2011)
(quoting Brocker v. Brocker, 241 A.2d 336, 338 (Pa. 1968)). This power includes
“broad discretion in fashioning and administering a remedy for civil contempt.”
Commonwealth v. Honore, 150 A.3d 521, 526 (Pa. Cmwlth. 2016) (citing Milligan
v. Piczon, 739 A.2d 605, 611 (Pa. Cmwlth. 1999)).
The purpose of civil contempt is “to compel performance of lawful
orders,” and the burden is generally on the complaining party to prove
noncompliance with the court order. Honore, 150 A.3d at 526. Mere noncompliance
with a court order is insufficient to prove civil contempt. Id. The complainant must
prove: “(1) that the contemnor had notice of the specific order or decree which he is
alleged to have disobeyed; (2) that the act constituting the contemnor’s violation was
volitional; and (3) that the contemnor acted with wrongful intent.” Id. (quoting
Epstein v. Saul Ewing, LLP, 7 A.3d 303, 318 (Pa. Super. 2010)). Further, an
15
appellate court will reverse a trial court’s order denying a contempt petition “only
upon a showing that the trial court misapplied the law or exercised its discretion in
a manner lacking reason.” MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa.
Super. 2012).
Here, the Board of Supervisors delayed responding to the Writ of
Certiorari for more than three years. In its answer to the petition for contempt, the
Board of Supervisors denied that it “refused to return the record” or “made any
representations … that [it] had refused or was refusing to return the record.” R.R.
162a-63a. In short, the Board of Supervisors’ answer raised an issue of material fact
as to whether the Board of Supervisors had “acted with wrongful intent.” Honore,
150 A.3d at 526. Landowners did not conduct discovery on this issue.
In their brief in support of contempt, Landowners attached an email
exchange between Landowners’ counsel and the Township’s solicitor to show
wrongful intent. This email exchange concerns the parties’ attempt to resolve the
driveway condition, but it does not show the requisite mens rea with respect to the
Board of Supervisors’ failure to return the record. As such, the trial court did not
abuse its discretion in denying Landowners’ petition for contempt.
Conclusion
For these reasons, we reverse the trial court’s July 9, 2019, order
affirming the Board of Supervisors’ conditional grant of the Plan. The driveway
condition bears no relation to the lot line revision Landowners sought in the Plan.
We affirm the trial court’s April 30, 2019, order denying Landowners’ petition for
contempt because Landowners did not establish that the Board of Supervisors, by
failing to return the record, acted with wrongful intent.
_____________________________________
MARY HANNAH LEAVITT, President Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric Joos and Amanda Joos, h/w :
and Mary Ellen Joos, :
Appellants :
:
v. : No. 1078 C.D. 2019
:
Board of Supervisors of Charlestown :
Township :
ORDER
AND NOW, this 31st day of July, 2020, the order of the Court of
Common Pleas of Chester County dated July 9, 2019, in the above-captioned matter,
is REVERSED. The order of the Court of Common Pleas of Chester County dated
April 30, 2019, in the above-captioned matter, is AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge