           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lower Mount Bethel                      :
Township                                : No. 1782 C.D. 2015
                                        : Argued: September 13, 2016
                   v.                   :
                                        :
Barbara Gacki and Adam Gacki,           :
                                        :
                         Appellants     :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION
BY SENIOR JUDGE FRIEDMAN                            FILED: November 30, 2016


            Barbara Gacki and Adam Gacki (together, the Gackis) appeal from the
August 31, 2015, final order of the Court of Common Pleas of Northampton County
(trial court) denying the Gackis’ motion for post-trial relief from the trial court’s
November 14, 2014, order granting Lower Mount Bethel Township’s (Township)
motion for judgment on the pleadings and from the trial court’s May 27, 2015, order
granting the Township’s request for attorney fees, a permanent injunction, and the
imposition of fines. We affirm.


            The Gackis own contiguous parcels of real property at 5651 and 5659
Delhaven Road in Bangor (collectively, Property). The Property fronts the Delaware
River and is within the jurisdiction of the Township, a second class township in
Northampton County. On June 28, 2011, the Township’s Floodplain Administrator
sent the Gackis a Violation Notice informing them that they were in violation of
sections 1.01, 2.01, 2.02, 2.03, and 2.04 of the Township’s Floodplain Management
Ordinance (Ordinance) for constructing a concrete retaining wall and backfilling the
Property, which is in the Delaware River’s floodplain, without submitting a permit
application and supporting documentation to the Township.                      (Township’s Am.
Compl.; Ex. A.) The Violation Notice notified the Gackis that they had 30 days to
submit a permit application for the retaining wall and backfill, submit a permit
application to remove these structures, or appeal the Violation Notice to the Lower
Mount Bethel Zoning Hearing Board (ZHB). (Id.) The Gackis never submitted a
permit application or appealed to the ZHB.


                   On April 12, 2013, the Township filed a zoning enforcement action
against the Gackis with a magisterial district judge. On July 9, 2013, the magisterial
district judge entered a judgment against the Gackis in the amount of $1,230.10.
Thereafter, the Gackis appealed the magisterial district judge’s judgment to the trial
court.


                   On October 3, 2013, the Township filed an amended complaint seeking
fines, attorney fees, and a permanent injunction in relation to the Gackis’ ongoing
violations of the Ordinance. The Township averred that the Gackis never applied for
the necessary permits or appealed the Violation Notice to the ZHB. (Township’s
Am. Compl. ¶¶22-24.) The Gackis filed preliminary objections to the Township’s
amended complaint pursuant to Pa. R.C.P. No. 1028(a),1 asserting that the Township

         1
             Pa. R.C.P. No. 1028(a) provides, in relevant part:

                 (a) Preliminary objections may be filed by any party to any pleading and are
         limited to the following grounds:
(Footnote continued on next page…)
                                                      2
lacked subject matter jurisdiction and the capacity to sue because the retaining wall
and backfill are located outside of the Township’s geographic jurisdiction. (Gackis’
Prelim. Obj. at 2-3.) Specifically, the Gackis alleged that the structures were located
in the Delaware River, which they argued is outside of the Township’s boundaries
and subject to federal jurisdiction. (Id.)


               The trial court overruled the Gackis’ preliminary objections.                        In
overruling the Gackis’ objection that the Township lacked the capacity to sue, the
trial court noted that the Township’s boundary is the middle of the Delaware River
and that the Township’s jurisdiction over the bed of the Delaware River extends to
the river’s New Jersey shore. (Trial Ct. Order, 2/5/14, at 4-5.) The trial court stated
that the retaining wall and backfill are located on the Gackis’ river-front Property in
the Township and, thus, within the Township’s geographic jurisdiction.                           (Id.)
Therefore, the trial court determined that the Township “unquestionably has the
capacity to sue” to enforce its Ordinance as to the retaining wall and backfill.2 (Id. at
6.)

(continued…)


                    (1) lack of jurisdiction over the subject matter of the action or the
             person of the defendant . . . .
                                                           ...

                     (5) lack of capacity to sue . . . .

       2
           In overruling the Gackis’ preliminary objection as to the Township’s subject matter
jurisdiction, the trial court stated “[w]e do not understand this Preliminary Objection” because an
objection in regard to subject matter jurisdiction “should properly question the jurisdictional
authority of the [trial court] rather than the authority of the [Township] to bring suit.” (Trial Ct.
Order, 2/5/14, at 3.) The trial court noted that the Gackis’ argument as to subject matter jurisdiction
(Footnote continued on next page…)
                                                     3
              On March 13, 2014, the Gackis filed an answer and new matter. In
response to the Township’s averments that the Gackis never applied for the necessary
permits or appealed the Violation Notice to the ZHB, the Gackis’ answer stated:


              Denied. The allegations and averments of Plaintiff’s
              paragraph . . . constitute conclusions of law and pursuant to
              the Pennsylvania Rules of Civil Procedure, no answer is
              required. Hence, same are denied and strict proof thereof is
              demanded at the time of trial, if relevant. . . .

(Gackis’ Answer ¶¶22- 24.) In new matter, the Gackis reiterated the jurisdictional
arguments that they raised in their preliminary objections. (Gackis’ New Matter
¶¶11, 13.)


              On April 16, 2014, the Township filed a motion for judgment on the
pleadings, requesting fines, attorney fees, and a permanent injunction directing the
Gackis to remove the retaining wall and backfill from the Property. In its motion, the
Township contended that “[t]he Gackis admit that they never appealed the [Violation]
Notice to the Township’s [ZHB]. Gacki Answer ¶24 (‘a general denial or a demand
for proof . . . shall have the effect of an admission.’              Pa. R.C.P. No. 1029).”
(Township’s Mot. ¶11.)


              By order filed November 14, 2014, the trial court granted the
Township’s motion for judgment on the pleadings. (Trial Ct. Order, 11/14/14, at 2.)


(continued…)

“appears to blend together” with their argument that the Township lacked the capacity to sue. (Id.
at 4-5.)


                                                4
The trial court stated that the Gackis failed to appeal the Violation Notice to the ZHB
and, thus, the trial court was precluded from reviewing the Violation Notice. (Id.)
Thus, the trial court granted the Township’s motion and scheduled a hearing to assess
penalties. (Id.)


              At the May 12, 2015, penalty hearing, the Gackis’ counsel stipulated that
the $20,430.82 in attorney fees requested by the Township was “accurate, reasonable
and at their hourly rate for the services performed.”3 (N.T., 5/12/15, at 12.) On May
27, 2015, after conducting a penalty hearing, the trial court ordered the Gackis to pay
fines totaling $1,200, attorney fees totaling $20,430.82, and directed the Gackis to
remove the retaining wall and backfill within 30 days of the trial court’s order. The
Gackis filed a motion for post-trial relief on June 8, 2015, and the trial court held a
hearing on the motion on July 28, 2015. On August 31, 2015, the trial court entered a
final order denying the Gackis’ motion for post-trial relief. Thereafter, the Gackis
filed a notice of appeal with this court.


1. Preliminary Objection


              First, the Gackis argue that the trial court erred in overruling their
preliminary objection4 that the Township lacked the capacity to sue the Gackis in

       3
        The Township’s requested attorney fees were based on the services that its attorneys billed
from June 28, 2011, through May 6, 2015. (Trial Ct. Order, 5/27/15, at 3; Ex. T-1.)

       4
         “Our review of a trial court's ruling on preliminary objections is limited to determining
whether the trial court abused its discretion or committed an error of law or whether constitutional
rights were violated.” City of Philadelphia v. Borough of Westville, 93 A.3d 530, 532 n.3 (Pa.
Cmwlth. 2014).


                                                 5
regard to the retaining wall and backfill because the structures are located outside of
the Township’s geographic jurisdiction.5 Specifically, the Gackis argue that the
federal government has jurisdiction over the retaining wall and backfill because the
structures are located in the Delaware River, which the Gackis argue is subject to
federal jurisdiction. We disagree.


                   Pursuant to 43 U.S.C. §1311(a), the federal government granted states
authority over the land beneath navigable waters within the states’ boundaries. 6 The
Delaware River is “a navigable co-terminous stream between New Jersey and
Pennsylvania.” Tinicum Fishing Company v. Carter, 61 Pa. 21, 30 (Pa. 1869). At
common law, Pennsylvania and New Jersey each had title over the bed of the
Delaware River “from their respective shores to the middle of the river.” Id. Section
301 of the Second Class Township Code (Code)7 provides that where a navigable

          5
          The Gackis also argue that the trial court erred in overruling their preliminary objection
alleging that the Township lacked subject matter jurisdiction. However, the Gackis’ argument
misconstrues the nature of subject-matter jurisdiction. Subject-matter jurisdiction is “[j]urisdiction
over the nature of the case and the type of relief sought; the extent to which a court can rule on the
conduct of persons or the status of things.” Black’s Law Dictionary 931 (9th ed. 2009) (emphasis
added). Here, the Gackis’ argument relates to the Township’s geographic jurisdiction, which is
distinct from subject-matter jurisdiction. Thus, the trial court did not err in overruling this
preliminary objection.

      6
          43 U.S.C. §1311(a) provides:


          It is determined and declared to be in the public interest that (1) title to and
          ownership of the lands beneath navigable waters within the boundaries of the
          respective States, . . . and (2) the right and power to manage, administer, lease,
          develop, and use the said lands and natural resources all in accordance with
          applicable State law be . . . vested in and assigned to the respective States . . . .

          7
              Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-68701.


                                                    6
stream separates a second class township from another municipal corporation, “the
middle of the stream is the boundary between the township and the opposite
municipal corporation.” 53 P.S. §65301. Section 1811 of a 1786 compact between
the Commonwealth and the State of New Jersey8 (Interstate Compact) extended the
geographic jurisdiction of Northampton County and its constituent townships:


               [I]n cases civil as well as criminal . . . [t]he bed of the
               [Delaware] [R]iver, and the islands and dry land within the
               same, so as aforesaid assigned to and belonging to this state,
               lying and being northerly of a north-easterly line from the
               extremity of the boundary line between the counties of
               Bucks and Northampton, at the bank of the river Delaware,
               to be extended across the said river unto the shore of New
               Jersey, shall be deemed to be . . . parts of the county of
               Northampton, and of the several adjoining townships and
               precincts of the same county, lying along the said river.


71 P.S. §1811 (emphasis added).


               Here, the Delaware River is a navigable water and, thus, federal law
grants the Commonwealth authority over the portion of the river bed that is within the
Commonwealth’s boundaries.                The boundary of the Township and the
Commonwealth is the middle of the Delaware River, and the Gackis do not argue that
the retaining wall and backfill are located beyond this boundary. Even if these
structures were located beyond the middle of the river, the Township would maintain
jurisdiction to enforce its Ordinance as to the structures pursuant to section 1811 of
the Interstate Compact. Therefore, because the retaining wall and backfill are within


      8
          Act of September 25, 1786, 2 Sm.L. 388, 71 P.S. §1811.


                                                7
the Township’s boundaries or geographic jurisdiction, the trial court did not err in
overruling the Gackis’ preliminary objection that the Township lacked the capacity to
sue.


2. Judgment on the Pleadings


            Next, the Gackis argue that the trial court erred and violated their right to
due process by granting the Township’s motion for judgment on the pleadings. We
disagree.


            A trial court may only grant a motion for judgment on the pleadings
“where the pleadings demonstrate that no genuine issue of fact exists and the moving
party is entitled to judgment as a matter of law.” Newberry Township v. Stambaugh,
848 A.2d 173, 175 n.1 (Pa. Cmwlth. 2004). In an appeal from a trial court’s decision
granting judgment on the pleadings, this court’s scope of review is plenary, and we
must consider “whether the [trial] court committed an error of law or whether
unresolved questions of material fact remain outstanding.”          Pfister v. City of
Philadelphia, 963 A.2d 593, 596 n.7 (Pa. Cmwlth. 2009). This court “must accept as
true all well-pleaded facts of the party against whom the motion is made.” Newberry
Township, 848 A.2d at 174 n.1.


            If a landowner does not appeal a zoning violation notice to
            the zoning hearing board, the failure to appeal renders the
            violation notice unassailable. Therefore, in the event a
            landowner does not appeal to the zoning hearing board and
            the municipality files an enforcement action with a district
            justice, neither the district justice nor a common pleas court
            may conduct a de novo review of the question of whether

                                           8
              the landowner violated the zoning ordinance. In that
              circumstance, the only question before the district justice
              and the Common Pleas Court is whether the penalty
              imposed for the violation was proper.


Township of Penn v. Seymour, 708 A.2d 861, 864-65 (Pa. Cmwlth. 1998) (emphasis
added).


              Here, the Gackis do not dispute that they received the Violation Notice,
which stated that they had 30 days to appeal the Violation Notice to the ZHB. The
Gackis never appealed the Violation Notice to the ZHB,9 which resulted in a
conclusive determination of their violation of the Ordinance. Thus, there were no
unresolved questions pertaining to the underlying violation at the time the trial court
entered judgment on the pleadings.10 Additionally, the trial court’s decision to enter
judgment on the pleadings did not deprive the Gackis of their due process right to a


       9
          In fact, the Gackis’ Answer effectively admitted that they did not appeal the Violation
Notice. “A responsive pleading shall admit or deny each averment of fact in the preceding
pleading.” Pa. R.C.P. No. 1029(a); see also City of Philadelphia v. MacDonald, 369 A.2d 1341,
1342 (Pa. Cmwlth. 1977) (holding that the City’s averments that the defendants failed to appeal a
tax assessment were averments of fact). “A general denial or a demand for proof . . . shall have the
effect of an admission.” Pa. R.C.P. No. 1029(b). Here, the Township averred that the Gackis failed
to appeal the Violation Notice. The Gackis responded that the Township’s averment was a
conclusion of law to which no response was required and demanded strict proof. By failing to
specifically admit or deny an averment of fact and demanding proof of an averment for which they
had sufficient information to admit or deny, the Gackis’ response constituted an admission.

       10
          The Gackis do not specify any other unresolved issues of material fact other than a
question of “jurisdiction.” To the extent that the Gackis are referring to their argument that the
retaining wall and backfill are outside of the Township’s geographic jurisdiction, we reiterate our
conclusion that the trial court properly rejected this argument in its order denying the Gackis’
preliminary objections.



                                                 9
hearing; rather, the Gackis forfeited this right by failing to appeal the Violation
Notice to the ZHB. Therefore, the trial court did not err in granting the Township’s
motion for judgment on the pleadings.


3. Attorney Fees


                 Next, the Gackis argue that the trial court abused its discretion in
awarding the Township $20,430.82 in attorney fees. We disagree.


                 Section 617.2(a) of the Pennsylvania Municipalities Planning Code
(MPC)11 provides that any person who has violated the provisions of a zoning
ordinance enacted under the MPC “shall, upon being found liable therefor in a civil
enforcement proceeding commenced by a municipality, pay . . . reasonable attorney
fees incurred by a municipality as a result thereof.” 53 P.S. §10617.2(a) (emphasis
added). “[A]n award of costs and attorney fees pursuant to [s]ection 617.2 of the
MPC is not limited to costs and fees incurred as a result of the action before the
district justice but includes all costs and attorney fees incurred as a result of the
violation.” Borough of Bradford Woods v. Platts, 799 A.2d 984, 991 (Pa. Cmwlth.
2002). Whether an award of attorney fees is reasonable depends upon “the amount of
work performed, the character of services rendered, the difficulty of the problems
involved, and the professional skill and standing of the attorney in the profession.”
Township of South Whitehall v. Karoly, 891 A.2d 780, 784 (Pa. Cmwlth. 2006). The
trial court has discretion to decide the reasonableness of an award of attorney fees,

        11
             Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.
1329.


                                                  10
and an appellate court should not alter the trial court’s decision absent a clear abuse
of discretion. Borough of Bradford Woods, 799 A.2d at 991.


             Here, the trial court was required to award the Township attorney fees
under section 617.2 of the MPC because the Gackis’ failure to appeal the Violation
Notice resulted in a conclusive determination of their violation of the Ordinance. The
trial court’s specific award of $20,430.82 in attorney fees reflects the volume of work
that the Township’s attorneys billed throughout the enforcement proceedings, which
began when the Township sent the Gackis the Violation Notice on June 28, 2011, and
continued through the trial court’s May 27, 2015, order awarding attorney fees.
Additionally, the Gackis’ counsel stipulated at the May 12, 2015, penalty hearing that
the Township’s requested award of $20,430.82 in attorney fees was reasonable.
Therefore, the trial court did not abuse its discretion in assessing the Gackis
$20,430.82 in attorney fees.


4. Injunctive Relief


             The Gackis argue that the trial court erred in granting the Township’s
request for a permanent injunction directing the Gackis to remove the retaining wall
and backfill because a hearing is required to determine whether the Gackis violated
the Ordinance. We disagree. Pursuant to section 1601(c.1)(4) of the Code, 53 P.S.
§66601(c.1)(4), “[o]rdinances may be enforced by a township through an action in
equity brought in the court of common pleas of the county where the township is
situate.” Section 617 of the MPC provides:




                                          11
              In case any building, structure, landscaping or land is, or is
              proposed to be, erected, constructed, reconstructed, altered,
              converted, maintained or used in violation of any ordinance
              enacted under this act or prior enabling laws, the governing
              body . . . may institute any appropriate action or proceeding
              to prevent, restrain, correct or abate such building, structure,
              landscaping or land . . . .


53 P.S. §10617. Thus, the trial court properly grants a request for injunctive relief
pursuant to section 617 of the MPC if the municipality has shown “that there was a
‘violation or proposed violation of some specific provision of the zoning ordinance.’”
Township of Little Britain v. Lancaster County Turf Products, Inc., 604 A.2d 1225,
1228 (Pa. Cmwlth. 1992) (citation omitted). Here, the Gackis violated the Ordinance
by constructing the retaining wall and backfilling the Property without applying for a
permit. The Gackis’ failure to appeal the Violation Notice resulted in a conclusive
determination of these violations. Therefore, the trial court did not err in granting a
permanent injunction directing the Gackis to remove the retaining wall and backfill.


5. Fine


              Finally, the Gackis argue that the trial court abused its discretion in
imposing a $1,200 fine.12 We disagree. Section 2.10(B) of the Ordinance provides:

       12
         The trial court stated that it was imposing a fine pursuant to section 1601(c.1)(1) of the
Code, which provides in relevant part:

       An ordinance which is to be enforced through a civil enforcement proceeding may
       prescribe civil penalties not to exceed six hundred dollars ($600) per violation . . . .
       [W]here a penalty for a violation of a township ordinance has not been timely paid
       and the person upon whom the penalty was imposed is found to have been liable
       therefor in civil proceedings, the violator shall be liable for the penalty imposed,
       including additional daily penalties for continuing violations . . . .
(Footnote continued on next page…)
                                                 12
              Any person who fails to comply with any or all of the
              requirements of this Ordinance . . . shall be guilty of an
              offense and, upon conviction, shall pay a fine to Township
              of not less than Four Hundred ($400.00) Dollars nor more
              than One Thousand ($1,000.00) Dollars, plus costs of
              prosecution. . . . Each day during which any violation of
              this Ordinance continues shall constitute a separate offense
              ....

Section 617.2(a) of the MPC provides that any person who has violated the
provisions of a zoning ordinance “shall, upon being found liable therefor in a civil
enforcement proceeding commenced by a municipality, pay a judgment of not more
than $500 . . . . Each day that a violation continues shall constitute a separate
violation.” 53 P.S. §10617.2(a). Here, the Township requested that the Gackis be
fined for each of the 687 days that the Gackis remained in violation of the Ordinance
after the magisterial district judge’s July 9, 2013, judgment. Considering that the
Gackis could have been fined a minimum of $400 per day, under these
circumstances, the trial court did not err in imposing a $1,200 fine on the Gackis.


              Accordingly, we affirm.



                                           ___________________________________
                                           ROCHELLE S. FRIEDMAN, Senior Judge



(continued…)


53 P.S. §66601(c.1)(1) (emphasis added). Section 1601(c.1)(1) of the Code merely enables a
township’s ordinance to prescribe fines, which the Ordinance here does. Therefore, the trial court
should have assessed fines pursuant to the Ordinance rather than section 1601(c.1)(1) of the Code.


                                               13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lower Mount Bethel                    :
Township                              : No. 1782 C.D. 2015
                                      :
                 v.                   :
                                      :
Barbara Gacki and Adam Gacki,         :
                                      :
                       Appellants     :



                                    ORDER


           AND NOW, this 30th day of November, 2016, we hereby affirm the
August 31, 2015, order of the Court of Common Pleas of Northampton County.



                                      ___________________________________
                                      ROCHELLE S. FRIEDMAN, Senior Judge
