          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of West Conshohocken             :
                                         :
             v.                          :   No. 571 C.D. 2013
                                         :   Submitted: November 4, 2016
Joseph and Jane Soppick,                 :
                  Appellants             :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                     FILED: March 29, 2017

             Joseph and Janet Soppick appeal an order of the Court of Common
Pleas of Montgomery County (trial court) directing them to pay $130,500, plus
costs and interest, as a penalty for building a garage that did not conform to their
building permit, in violation of the Borough of West Conshohocken’s Zoning
Ordinance.1 The Soppicks contend that the Borough could not seek civil penalties
while their appeal of the Borough’s Stop Work Order was pending. When the
Soppicks lost their appeal, they dismantled the garage.            Concluding that the
Borough lacked authority to seek a penalty while the Soppicks appealed the
judgment that they violated the Borough’s Zoning Ordinance, we reverse.
             The Soppicks own property located at 209 Moir Avenue in the
Borough of West Conshohocken. In 1996, the Soppicks applied for a building
permit to construct a detached, one-story garage on the property, and it was


1
 BOROUGH OF WEST CONSHOHOCKEN ZONING ORDINANCE OF 1976. The Zoning Ordinance is
codified at Chapter 113 of the Code of the Borough of West Conshohocken (BOROUGH CODE).
The Borough Code is available online at http://www.ecode360.com/WE0554 (last visited March
20, 2017).
granted. In April 1999, the Borough’s Zoning Officer did an inspection and
discovered that the Soppicks were constructing an attached, two-story garage, in
violation of the Borough’s Zoning Ordinance, Building Code, and their permit. On
April 23, 1999, the Zoning Officer issued a Stop Work Order under Section 113-
131 of the Zoning Ordinance2 instructing the Soppicks to “cease work immediately
on any further construction” and advising that failure to do so would result in daily
fines. Reproduced Record at 9 (R.R. __). The Stop Work Order, a one-page letter
from the Borough’s Zoning Officer, cited the Borough’s Construction Codes and
the Building Officials and Code Administrators International (BOCA) National
Building Codes/1996. The Stop Work Order advised the Soppicks that they had
the right to appeal to the Zoning Hearing Board.
               The Soppicks appealed the Stop Work Order. Four years later, on
June 11, 2004, the Zoning Hearing Board denied the Soppicks’ appeal, stating:

               The garage represents an extension of the present
               nonconforming use of the subject property in excess of that
               permitted by the Borough Code, is in excess of the dimensions
               described in the Application for Building Permit which was
               approved by the Borough Building/Zoning Officer, is a two-

2
 Section 113-131 of the Borough Code’s Chapter on Zoning states:
       In case any building or structure is erected, constructed, reconstructed, altered,
       repaired, converted or maintained or any building, structure or land is used or any
       hedge, tree, shrub or other growth is maintained in violation of this chapter or of
       any regulation made pursuant thereto, in addition to other remedies provided by
       law, any appropriate action or proceedings, whether by legal process or otherwise,
       may be instituted or taken to prevent such unlawful erection, construction,
       reconstruction, alteration, repair, conversion, maintenance or use, to restrain,
       correct or abate such violation, to prevent the occupancy of said building,
       structure or land or to prevent any illegal act, conduct, business or use in or about
       such premises.
BOROUGH CODE §113-131 (emphasis added).


                                                 2
              story [structure] … and is attached to the existing structure,
              rather than detached as was described in the plans and
              representations made by the Soppicks prior to the approval of
              the permit.

R.R. 12. The Soppicks appealed the decision of the Zoning Hearing Board, and
the trial court affirmed by order of February 21, 2007. The Soppicks appealed the
trial court’s order to this Court.
              On June 19, 2007, while the Soppicks’ appeal was pending with this
Court, the Borough notified the Soppicks of its intent to enforce the trial court’s
order. Its letter stated, in relevant part, as follows:

              As you are aware, the Court of Common Pleas of Pennsylvania
              issued an Order dated February 21, 2007. That Order affirmed
              the West Conshohocken Zoning Hearing Board’s denial of your
              zoning application. A copy of said Order is attached for your
              review.
              In accordance with Section 37-24 of the Borough Code,[3] you
              are hereby fined $300.00. Every day that this violation

3
 This provision states:
       Any person violating the provisions of this chapter shall be subject to the
       provisions detailed in Chapter 53A of the Code of the Borough of West
       Conshohocken.
BOROUGH CODE §37-24. Chapter 53A, known as the “Borough of West Conshohocken Fines
and Penalties Ordinance,” states:
       A. Except as provided in § 53A-3 hereof, when the penalty imposed for the
       violation of an ordinance of the Borough of West Conshohocken Code is not
       voluntarily paid to the Borough, the Borough shall initiate a civil enforcement
       proceeding before a District Justice. The civil enforcement proceeding shall be
       initiated by complaint or by such other means as may be provided by the
       Pennsylvania Rules of Civil Procedure. The penalty for any ordinance, which is to
       be enforced through a civil enforcement proceeding, may not exceed $600 per
       violation.
       B. In any case where a penalty for a violation of a Borough ordinance has not
       been timely paid and the person upon whom the penalty was imposed is found to
(Footnote continued on the next page . . .)
                                            3
              continues constitutes a separate offense punishable by a fine of
              $300.00.

R.R. 56 (emphasis added). When the Soppicks neither paid the fine nor corrected
the violation, the Borough filed a complaint. On October 4, 2007, a magisterial
district judge entered a judgment on the Borough’s complaint against the Soppicks
and imposed a penalty of $7,038.50 which the Soppicks appealed.
              On November 23, 2007, the Borough filed a complaint against the
Soppicks in the trial court, seeking penalties in the amount of $47,100. The
Borough’s complaint stated that it

              obtained declaratory judgment from [the trial court] upholding
              the June 11, 2004 decision of the Borough’s zoning hearing
              board which held that the [Soppicks] violated Borough Code
              Sections 37-5C and 37-7C and former building code section[s]
              111.2 and 111.3.


(continued . . .)
     have been liable therefor in civil proceedings, the violator shall be liable for the
     penalty imposed, including additional daily penalties for continuing violations,
     plus court costs and reasonable attorney fees incurred by the Borough in the
     enforcement proceedings.
     C. Pursuant to state law, the Borough is exempt from the payment of costs in any
     civil case brought to enforce an ordinance in accordance with this section.
BOROUGH CODE §53A-2. Additionally, Section 3 provides:
     For all ordinances regulating building, housing, property maintenance, health,
     fire, public safety, parking, solicitation, curfew, water, air or noise pollution
     enforcement shall be by action brought before a District Justice in the same
     manner provided for the enforcement of summary offenses under the
     Pennsylvania Rules of Civil Procedure. In accordance with state law, the
     Borough’s Solicitor is authorized to assume charge of the prosecution without the
     consent of the District Attorney. Fines for such offenses shall not exceed $1,000
     per violation. Any such ordinance may prescribe imprisonment for such offenses
     to the extent allowed by law for the punishment of summary offenses.
BOROUGH CODE §53A-3.


                                               4
Certified Record (C.R.) Item No. 3 at 5. The complaint alleged that the Soppicks’
illegal garage exposed them to a daily fine of $300.
             On February 19, 2008, this Court affirmed the trial court’s decision,
concluding, in part, that the Borough was justified in issuing the Stop Work Order
pursuant to Section 113-131 of the Borough’s Zoning Ordinance because the
Soppicks’ garage was a “building or structure … erected … in violation of this
chapter,” i.e., the Zoning Ordinance Chapter of the Borough Code. Soppick v.
Zoning Hearing Board of West Conshohocken, (Pa. Cmwlth., No. 531 C.D. 2007,
filed February 19, 2008) (unreported). On August 27, 2008, the Soppicks removed
the garage. The Borough’s pursuit of penalties continued.
             In 2011, the Borough filed an amended complaint seeking $130,500 to
penalize the Soppicks for having a garage that violated the Zoning Ordinance for a
period of 435 days. The Borough measured this period from the date it sent the
enforcement notice to the Soppicks, i.e. June 19, 2007, to the date the Soppicks
removed the garage, i.e., August 27, 2008.
             On February 6, 2012, the Borough filed a motion for summary
judgment. By order dated July 13, 2012, the trial court granted the motion and
entered judgment against the Soppicks in the amount of $130,500, plus interest and
costs. On July 18, 2012, the Soppicks filed a motion for reconsideration and for an
extension of time to file a response to the Borough’s motion for summary
judgment. The trial court granted reconsideration and dissolved its order of July
13, 2012. After the Soppicks responded to the Borough’s motion for summary




                                         5
judgment, the trial court again ordered the Soppicks to pay a penalty of $130,500
plus costs and interest. The Soppicks now appeal to this Court.4
              On appeal, the Soppicks raise one issue. They contend that the trial
court erred because their appeal of the Stop Work Order and underlying Zoning
Ordinance violation precluded the Borough from seeking penalties until their
appeal failed.       They make this argument under Section 617.2(a) of the
Municipalities Planning Code (MPC),5 53 P.S. §10617.2(a).6                      The Borough
responds that Section 617.2(b) of the MPC, 53 P.S. §10617.2(b), implicitly permits
a municipality to assess fines while an appeal of its order is pending.
              Section 617.2 of the MPC states as follows:

              (a) 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


4
  “In an appeal from a trial court’s decision in a zoning enforcement proceeding, our review is
limited to determining whether the trial court committed an abuse of discretion or error of law.”
Loganville Borough v. Godfrey, 59 A.3d 1149, 1151 n.4 (Pa. Cmwlth. 2012) (citation omitted).
5
  Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202; Section 617.2 was added
by the Act of December 21, 1988, P.L. 1329.
6
  The Soppicks also argue that their appeal of the penalty action barred the Borough from
imposing daily fines.


                                               6
            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.

            (b) The court of common pleas, upon petition, may grant an
            order of stay, upon cause shown, tolling the per diem fine
            pending a final adjudication of the violation and judgment.
            (c) Nothing contained in this section shall be construed or
            interpreted to grant to any person or entity other than the
            municipality the right to commence any action for enforcement
            pursuant to this section.

53 P.S. §10617.2 (emphasis added). The term “judgment” is not defined in the
MPC. As we have explained, where a term is not defined, courts will construe the
term according to its common and approved usage, beginning with a dictionary
definition. Wright v. Lower Salford Township Municipal Police Pension Fund,
136 A.3d 1085, 1090 (Pa. Cmwlth. 2016) (quotation omitted). “Judgment” is
defined as “[a] court’s final determination of the rights and obligations of the
parties in a case.” BLACK’S LAW DICTIONARY 970 (10th ed. 2014).
            The Soppicks focus on the sentence in Section 617.2(a) of the MPC
stating that “[i]f the defendant neither pays nor timely appeals the judgment, the
municipality may enforce the judgment pursuant to the applicable rules of civil
procedure.” 53 P.S. §10617.2(a). The Soppicks construe this sentence to mean
that a municipality may not file a complaint to enforce the judgment where the
underlying “judgment” has been appealed. The Soppicks contend that their appeal

                                        7
of the trial court’s judgment affirming the Stop Work Order prevented the Borough
from initiating a penalty action. The Borough responds that Section 617.2(a) does
not expressly prohibit a municipality from enforcing a judgment that has been
appealed.
                 Where it appears to a municipality that a violation of a zoning
ordinance has occurred, and the municipality seeks to initiate zoning enforcement
proceedings, it must do so by sending an enforcement notice. See Section 616.1 of
the MPC, 53 P.S. §10616.1.7 The notice of violation informs the landowner of the

7
    Section 616.1 provides:
          (a) If it appears to the municipality that a violation of any zoning ordinance
          enacted under this act or prior enabling laws has occurred, the municipality shall
          initiate enforcement proceedings by sending an enforcement notice as provided in
          this section.
          (b) The enforcement notice shall be sent to the owner of record of the parcel on
          which the violation has occurred, to any person who has filed a written request to
          receive enforcement notices regarding that parcel, and to any other person
          requested in writing by the owner of record.
          (c) An enforcement notice shall state at least the following:
                   (1) The name of the owner of record and any other person against
                   whom the municipality intends to take action.
                   (2) The location of the property in violation.
                   (3) The specific violation with a description of the requirements
                   which have not been met, citing in each instance the applicable
                   provisions of the ordinance.
                   (4) The date before which the steps for compliance must be
                   commenced and the date before which the steps must be
                   completed.
                 (5) That the recipient of the notice has the right to appeal to the
                 zoning hearing board within a prescribed period of time in
                 accordance with procedures set forth in the ordinance.
                 (6) That failure to comply with the notice within the time
                 specified, unless extended by appeal to the zoning hearing board,
                 constitutes a violation, with possible sanctions clearly described.
(Footnote continued on the next page . . .)
                                                  8
specific violation, the steps to be taken to come into compliance, and the time
within which to do so. Upon receipt of the notice, the landowner may appeal the
violation to the zoning hearing board. “Failure to do so makes it conclusively to be
a violation.” Moon Township v. Cammel, 687 A.2d 1181, 1184 (Pa. Cmwlth.
1997).
              Here, the Borough notified the Soppicks of its intent to impose a daily
fine while the Soppicks were challenging the underlying violation (i.e. Stop Work
Order). When the Soppicks did not pay the fine, or abate the violation, the
Borough filed a complaint before the magisterial district judge, relying upon the
trial court’s affirmance of the Zoning Hearing Board as the proof of the violation.
              The Borough’s enforcement action was premature. See Borough of
Bradford Woods v. Platts, 799 A.2d 984 (Pa. Cmwlth. 2002) (“[A] property owner
may not be found liable unless there is a conclusive determination of a violation,
either through the appeal process or by a failure to appeal the notice.”). In Woll v.
Monaghan Township, 948 A.2d 933, 937 (Pa. Cmwlth. 2008), this Court explained
that “[the municipality] could not commence an action before the magisterial
district judge until the issue of whether a violation occurred was determined by the
zoning hearing board.” This is so because the MPC vests the zoning hearing board
with exclusive jurisdiction to hear appeals of zoning violations; the MPC vests the


(continued . . .)
        (d) In any appeal of an enforcement notice to the zoning hearing board, the
        municipality shall have the responsibility of presenting its evidence first.
        (e) Any filing fee paid by a party to appeal an enforcement notice to the zoning
        hearing board shall be returned to the appealing party by the municipality if the
        zoning hearing board or any court in a subsequent appeal rules in the appealing
        party's favor.
53 P.S. §10616.1, added by Section 60 of the Act of December 21, 1988, P.L. 1329.


                                               9
magisterial district judge with the power to levy fines once the violation is finally
adjudicated.     Id.   Stated otherwise, where landowners appeal an enforcement
action, there is no conclusive determination of a violation upon which a
municipality can seek sanctions until the landowners have exhausted their appeal
rights.   See Vieldhouse v. Warwick Township Zoning Hearing Board, (Pa.
Cmwlth., No. 2169 C.D. 2011, filed May 23, 2012), Slip Op. at 5 (unreported)
(“Once [landowner] has exhausted his appeal rights, the Township may choose to
seek an enforcement remedy if the Property has not been brought into compliance
with the zoning ordinance.”).8 Here, the Soppicks had not exhausted their appeal
rights because their appeal of the trial court’s judgment was pending. Therefore,
the Borough could not pursue its enforcement proceeding.
               The Borough argues, however, that the Soppicks should have
requested the trial court to stay the Stop Work Order. Because they did not do so,
the Borough commenced enforcement proceedings. Borough Brief at 11. In
support, the Borough directs this Court to Article X-A of the MPC, which sets
forth the procedures for appeals of land use decisions, including zoning hearing
board decisions, and specifically to Section 1003-A(d) of the MPC, which states:

               (d) The filing of an appeal in court under this section shall not
               stay the action appealed from, but the appellants may petition
               the court having jurisdiction of land use appeals for a stay. If
               the appellants are persons who are seeking to prevent a use or
               development of the land of another, whether or not a stay is
               sought by them, the landowner whose use or development is in
               question may petition the court to order the appellants to post
               bond as a condition to proceeding with the appeal. After the

8
  Pursuant to Commonwealth Court Internal Operating Procedures §414(a), 210 Pa. Code
§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as
binding precedent.


                                              10
                petition for posting a bond is presented, the court shall hold a
                hearing to determine if the filing of the appeal is frivolous. At
                the hearing, evidence may be presented on the merits of the
                case. It shall be the burden of the landowners to prove the
                appeal is frivolous. After consideration of all evidence
                presented, if the court determines that the appeal is frivolous, it
                shall grant the petition for posting a bond. The right to petition
                the court to order the appellants to post bond may be waived by
                the appellee, but such waiver may be revoked by him if an
                appeal is taken from a final decision of the court. The question
                of the amount of the bond shall be within the sound discretion
                of the court. An order denying a petition for bond shall be
                interlocutory. An order directing the respondent to the petition
                for posting a bond to post a bond shall be interlocutory. If an
                appeal is taken by a respondent to the petition for posting a
                bond from an order of the court dismissing a land use appeal for
                refusal to post a bond, such responding party, upon motion of
                petitioner and, after hearing in the court having jurisdiction of
                land use appeals, shall be liable for all reasonable costs,
                expenses and attorney fees incurred by petitioner.

53 P.S. §11003-A(d).9 Section 1003-A(d) of the MPC relates to a land use appeal.
                Section 1003-A(d) explains that the filing of an appeal does not
automatically stay the grant or denial of the land use application. Nevertheless, the
appellant may seek to stay the land use order while it is appealed. For example,
where the appellant is a third-party who seeks to set aside the grant of a land use
permit, the appellant may request to have that order stayed and, thus, delay the
permitted project. However, that appellant may also be required to post a bond to
protect the landowner “whose use or development is in question.” Id. Section
1003-A(d) has nothing to do with enforcement actions, and it has no bearing on
this case.


9
    Added by Section 101 of the Act of December 21, 1988, P.L. 1329.


                                               11
            To pursue an enforcement action, the Borough must comply with
Sections 616.1 and 617.2 of the MPC. Section 617.2(a) of the MPC relates to
enforcement remedies against a “person … who … has violated or permitted the
violation of the provisions of any zoning ordinance.” 53 P.S. §10617.2(a). At the
time the Borough initiated enforcement against the Soppicks, there had been no
final determination that the Soppicks violated the Zoning Ordinance because they
had not exhausted their appeal rights. Vieldhouse, (Pa. Cmwlth., No. 2169 C.D.
2011, filed May 23, 2012) (unreported). Thus, the Borough was not able to initiate
enforcement proceedings under Section 617.2 of the MPC.
            For these reasons, we reverse the trial court’s order.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                        12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of West Conshohocken      :
                                  :
           v.                     :   No. 571 C.D. 2013
                                  :
Joseph and Jane Soppick,          :
                  Appellants      :

                                ORDER

           AND NOW, this 29th day of March, 2017, the order of the Court of
Common Pleas of Montgomery County dated March 18, 2013, in the above-
captioned matter is REVERSED.
                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
