IN THE COMMONWEALTH COURT OF PENNSYLVANIA Barbara J. Bell, : Appellant : : No. 2253 C.D. 2012 v. : Argued: June 17, 2013 : Township of Spring Brook, : Pennsylvania : BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: July 11, 2013

In this, her third appeal, Barbara J. Bell (Bell) asks whether the Court

of Common Pleas of Lackawanna County (trial court) erred in granting judgment

on the pleadings in favor of the Township of Spring Brook (Township) on Bell’s

suit seeking to compel the Township to enforce its zoning ordinance against a

neighboring landowner. Bell argues the trial court erred in granting judgment on

the pleadings where: (1) Bell properly alleged, and there do exist, justiciable

claims for enforcement of the Township’s zoning ordinance, which were not

previously litigated; (2) the trial court misapplied this Court’s holding in Hanson v.

Lower Frederick Township Board of Supervisors, 667 A.2d 1221 (Pa. Cmwlth.

1995); and, (3) Bell lacked any other available remedy, and the exhaustion doctrine

does not apply in these circumstances. Upon review, we affirm.

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I. Background

The complex factual and procedural background to this dispute is set

forth fully in this Court’s prior decision in Bell v. Township of Spring Brook (Bell

I), 30 A.3d 554 (Pa. Cmwlth. 2011) (McCullough, J.). We reiterate only those

facts relevant to the resolution of the Township’s motion for judgment on the

pleadings.

In 2009, Bell filed suit naming the Township as the sole defendant.

Essentially, Bell seeks to compel the Township to enforce its zoning ordinance

against third-party landowners John Douglas Millan and Anne E. Millan

(collectively, the Millans).

Through her complaint, Bell alleges she is the owner of real property

located in the Township.1 Bell intends to construct a permanent residence on the

property, and she applied for and received permits from the Township to do so.

Bell avers the Millans own property that is immediately adjacent to and shares a

common boundary with Bell’s property.

According to Bell’s complaint, the Millans own a blacktopping

company (Millan Blacktopping) and operate a portion of that business on their

property. Bell alleges that both her property and the Millans’ property are located

in an R-1 Residential zoning district. The Township Zoning Ordinance of 1996

(zoning ordinance) defines the R-1 District as “...single family residential

1 Bell’s complaint indicates she is “now or formerly receiving mail” at an address in

Dumfries, Virginia. Compl., 4/21/09 at ¶ 1; Reproduced Record (R.R.) at 17a.

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development which will offer a living environment with opportunities for privacy

and a development pattern which will preserve the open space character and the

physical environmental amenities of these sections of the Township.” Compl.,

4/21/09, at ¶ 19; Reproduced Record (R.R.) at 20a (emphasis in original).

According to Bell’s complaint, the R-1 District permits the following

uses by right: “Agricultural Crop Production, Animal Husbandry, Dairy/Livestock

Production, Grading less then [sic] 5 Feet Deep or less than 1/2 Acre, Hunting and

Fishing Clubs, Manufactured Homes on Industrial Lots, Religious Quarters, Single

Family Dwellings and Logging/Timbering Operations.” Id. at ¶ 9; R.R. at 18a-

19a.2 According to the complaint, commercial uses are not permitted in the R-1

district. Id. at ¶ 13; R.R. at 19a.

Bell’s complaint alleges that prior to the enactment of the 1996 zoning

ordinance, the Millans used their property for the parking of a dump truck and a

2 The complaint also averred the zoning ordinance permits the following accessory uses:

“Drive In Stand, Fences and Walls, Home Gardening, Nurseries and Greenhouses, Household

Animals and Fowl, Off-Street Loading, Off Street Parking, Private Flea Markets, Private

Garages, Patios, etc., Private Swimming Pools, Sheds, Barns, Silos, etc., Signs, Solar Energy

Systems, Temporary Structure or Use, Tennis Court, and Yard or Garage Sales.” Compl. at ¶ 10;

R.R. at 19a.

The R-1 District also allows the following uses by special exception: “Animal Hospital,

Animal Kennel, Bed and Breakfast Home, Cemetery, Child Care Center, Churches or Places of

Worship, Community Center, Essential Services, Government Services, Group or Organized

Camp, Home Occupation, Membership Club, Personal Care Center, Schools, public and

private.” Compl. at ¶ 11; R.R. at 19a.

Bell’s complaint further alleged the following conditional uses are permitted in R-1

District: “Campgrounds, Outdoor Exhibitions, Outdoor Sports, Planned Residential

Development, Pond/Lake Construction, Quarrying, Residential Conversion Unit, Resorts,

Sawmills and Planning Mills, Shooting Ranges, Two Family Detached Dwelling, and

Communications Facilities.” Compl. at ¶ 12; R.R. at 19a.

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backhoe, both of which were used in their blacktopping business. Id. at ¶ 20; R.R.

at 20a.

In January 1997, the Township Board of Supervisors enacted the 1996

zoning ordinance. Bell alleges that, after the enactment of the 1996 zoning

ordinance, the Township wrongfully issued the Millans a certificate of non-

conforming use allowing the Millans use of a garage to park and store equipment.

Id. at ¶¶ 21, 71; R.R. at 20a-21a, 31a. Bell avers the Township issued the Millans

the certificate of non-conforming use under a mistake of fact, contrary to the

provisions of the zoning ordinance. Id. at ¶¶ 72, 73; R.R. at 31a-32a. Bell also

alleges the Township granted the Millans a building permit to construct a 60’ x 80’

garage. Id. at ¶ 22; R.R. at 21a.

In 2005, Bell filed a complaint naming the Township, the Millans and

Millan Blacktopping as defendants. Through that complaint, Bell asserted

numerous causes of action, including negligence, fraud, and negligent

misrepresentation against the Township as well as a nuisance claim against the

Millans and Millan Blacktopping.

Thereafter, the Township filed a motion for summary judgment,

joined by the Millans and Millan Blacktopping. Ultimately, the trial court granted

summary judgment in favor of the Township as well as the Millans and Millan

Blacktopping. Specifically, the trial court determined Bell’s complaint equated to

an untimely land use appeal, the Township was immune from suit, the Millans’ use

of their property was a permitted, non-conforming use, and Bell’s nuisance claim

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lacked factual or legal support. Bell appealed to this Court, but later discontinued

that appeal.

Shortly thereafter, Bell filed the present complaint against the

Township, seeking an order compelling the Township “to investigate, to review, to

address and, where appropriate, to enjoin and/or prohibit zoning code violations”

committed by the Millans. Tr. Ct., Slip Op., 11/9/12, at 5. Bell’s complaint

alleges the Millans’ current use of the property significantly exceeds the prior non-

conforming use, requiring the Millans to obtain special exception approval. Bell’s

complaint also seeks an order compelling the Millans to discontinue commercial

operations on their property and to remove any offending material or equipment.

In response to Bell’s complaint, the Township filed preliminary

objections, asserting Bell sought to re-litigate the issues decided in her 2005 suit.

The Township argued Bell’s claims were barred by res judicata, collateral estoppel

or the law of the case. The trial court agreed Bell’s complaint was barred by the

doctrine of collateral estoppel, and, as a result, it sustained the Township’s

preliminary objection and dismissed the complaint. Bell appealed to this Court.

Thereafter, this Court issued a reported opinion affirming in part, and

reversing in part, the trial court’s decision on preliminary objections. See Bell I.

Essentially, this Court held, “by virtue of the entry of summary judgment which

dismissed [Bell’s] 2005 complaint, Bell is collaterally estopped from proceeding

with the 2009 complaint, except to the extent it alleges changes in the conditions

and circumstances at the Millan property [subsequent to the dismissal of Bell’s

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2005 complaint].” Id. at 559-60. Thus, we remanded for further proceedings

relating to Bell’s 2009 complaint as limited by our decision.

On remand, the Township filed an answer with new matter to Bell’s

complaint. Bell did not file a timely reply to the Township’s new matter. Thus,

the trial court determined the pleadings were closed.

Thereafter, the Township filed its motion for judgment on the

pleadings. It asserted Bell’s complaint, which essentially sought to compel the

Township to enforce its zoning ordinance against the Millans, constituted an

improper attempt to state a claim in mandamus. The Township further argued the

trial court lacked jurisdiction over Bell’s suit because Bell failed to join the Millans

as indispensable parties. Bell filed an answer to the motion.

Ultimately, the trial court granted the Township’s motion for

judgment on the pleadings. Relying on Hanson, the trial court determined Bell

could not state a claim for mandamus against the Township for the Millans’

alleged zoning violations. Rather, Bell’s proper cause of action was a private

zoning enforcement action against the Millans under Section 617 of the

Pennsylvania Municipalities Planning Code3 (MPC). The trial court stated, while

Bell attempted to “disguise” her mandamus suit as an action under Section 617,

Bell’s claim and requested relief as set forth in the complaint, sounded in

mandamus. Tr. Ct., Slip Op. at 9.

3 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10617.

7

The trial court explained that Section 617 provides a cause of action

separate and distinct from an action in mandamus. The trial court also explained

that when Bell sued the Millans in 2005, she could have asserted a claim under

Section 617 to prevent or correct the alleged zoning ordinance violations; however,

she did not state such a claim at that time. The trial court then stated:

[Bell], seeking a second bite at the apple, is attempting to

successfully assert a mandamus claim under [S]ection 617

against the Township to prevent or correct the zoning violations

committed by the Millans. [Bell’s] mandamus claim under

[S]ection 617, however, fails to persuade this Court that such an

action is appropriate under these circumstances. Following the

principle in Hanson, since [S]ection 617 was available as [a]

potential adequate remedy against the Millans in 2005, the

instant mandamus claim under [S]ection 617 against the

[Township], under these circumstances, is prohibited.

Therefore, the law says with certainty that no recovery is

possible under the mandamus claim asserted in [Bell’s]

[c]omplaint.

In addition to [Bell’s] potential ability to obtain an

adequate remedy pursuant to [S]ection 617, [Bell] also ignored

other avenues that could have provided adequate relief when

she failed to appeal the issuance of the ‘Certificate of Non-

Performance’ and the issuance of the [z]oning [p]ermit and

[b]uilding [p]ermit in 2004. Since [Bell] had numerous chances

to assert claims that could have provided adequate remedies for

the alleged zoning violations at issue, even taking all of the

averments of relevant fact in [Bell’s] pleadings as true, the

mandamus action at bar will be dismissed because the law says

with certainty that no recovery is possible under the mandamus

claim asserted in [Bell’s] [c]omplaint.

Tr. Ct., Slip Op. at 9-10 (citations omitted).

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Based on its determination that Bell could not bring a mandamus suit

against the Township, the trial court deemed it unnecessary to address the

Township’s argument that Bell’s suit also failed because she did not name the

Millans as defendants and, therefore, did not join all indispensable parties. This

appeal by Bell followed.

II. Discussion

A. Contentions

On appeal,4 Bell argues the trial court erred in granting the

Township’s motion for judgment on the pleadings. Specifically, Bell contends the

trial court erred because Bell properly alleged, and there does exist, a justiciable

claim for enforcement of the Township’s zoning ordinance that was not the subject

of previous litigation. Bell asserts the present case is an action in equity to enforce

the Township’s ordinances and regulations pursuant to Section 617 of the MPC.

See Frye Constr., Inc. v. City of Monongahela, 526 Pa. 170, 584 A.2d 946 (1991).

Bell argues she set forth a complaint that legally and adequately seeks enforcement

of the zoning ordinance as the requested relief in equity. Bell maintains it is the

4 A motion for judgment on the pleadings is in the nature of a demurrer. Commonwealth

v. Ortho-McNeil-Janssen Pharm., Inc., 52 A.3d 498 (Pa. Cmwlth. 2012) (en banc). Thus, all of

the opposing party’s allegations are viewed as true and only those facts specifically admitted by

him may be considered against him. Id. In reviewing a motion for judgment on the pleadings, a

court may only consider the pleadings and any documents properly attached to the pleadings. Id.

A motion for judgment on the pleadings should be granted only when the pleadings show there is

no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Id.

Our review of a trial court’s decision granting a motion for judgment on the pleadings

considers whether the court committed an error of law or whether unresolved questions of

material fact remain outstanding. Pfister v. City of Phila., 963 A.2d 593 (Pa. Cmwlth. 2009).

Our scope of review is plenary. Id.

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Township’s failure to enforce its ordinances in light of the significant expansion of

the use upon the Millans’ property that gives rise to Bell’s justiciable action.

Bell contends the complaint sets forth two claims against the

Township regarding the enforcement of the zoning ordinance, and the statutory

authority Bell cited in the complaint is Section 617 of the MPC. See R.R. at 26a,

27a, 32a. Bell argues the first count relates to the Millans’ significant expansion of

the use of their property beyond that contemplated by the grant of the certificate of

non-conforming use, and the Millans’ failure to apply for the necessary special

exception to legally expand the use of their premises.5 R.R. 26a-28a. The second

claim involves the method set forth in the zoning ordinance through which the

Township may correct a mistake of fact or a determination contrary to law by

revoking a certificate of non-conforming use. R.R. at 28a-33a.

Bell maintains that in the present action she seeks enforcement of the

zoning ordinance, and she lacks legal authority to compel the Millans’ obedience

5 Specifically, her complaint alleges in significant detail how the use upon which the

certificate of non-conforming use was granted changed fundamentally from merely parking and

storing equipment to much more intense activity levels at present. R.R. at 22a-23a. This

includes: storage of a greater number of business purpose vehicles and equipment; storage,

parking and use of front-end loaders, flatbed trailers, rollers, and other equipment used in

blacktopping or excavation services; the parking, storage and use of large dump trucks, large

front-end loaders and large flat-bed trucks; the industrial cleaning of trucks and/or equipment

utilized in commercial enterprise; the use of trucks and equipment in commercial enterprise, to

operate as early as 7:00 a.m., with the noise continuing until 7:00 p.m.; and, multiple employees

or workers of Millan Blacktopping engaging in employment duties.

Bell contends it is the unmitigated failure of the Township to enforce the zoning

ordinance despite the fundamental change in use of the Millan property that is at issue in the

present suit.

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to the zoning ordinance. Rather, that authority rests with the applicable

governmental body, in this case, the Township.

Bell maintains that in Peden v. Gambone Brothers Development Co.,

798 A.2d 305 (Pa. Cmwlth. 2002), this Court held that an adjacent landowner, as

an aggrieved neighbor, had an independent right to seek relief from a zoning

violation next door and that right could be asserted in an equity action. Similarly,

here, she asserts the present case is an action in equity to enforce the Township’s

zoning ordinance pursuant to Section 617 of the MPC.

Further, Bell asserts the trial court erred in applying Hanson, and

holding the claim here is similar to the claim of the appellant in Hanson. Bell

contends in Hanson, the appellant filed a mandamus action under Section 910.1 of

the MPC,6 53 P.S. §10910.1. She argues that a review of her complaint here

reveals she did not cite Section 910.1; rather, she filed suit under the proper

statutory provision, Section 617.

Bell also argues the trial court erred in dismissing her complaint on

the ground that other remedies were available because there are no other

identifiable remedies that post-date her 2005 lawsuit. Bell contends that,

consistent with this Court’s decision in Bell I, she was permitted to proceed with

her claims under Section 617 of the MPC concerning the uses on the Millan

property that post-date the termination of her 2005 action. Further, Pennsylvania

6 Section 910.1 was added by the Act of December 21, 1988, P.L. 1329.

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law does not require any exhaustion of remedies prior to filing a claim under

Section 617. See Peden.

The Township responds the trial court properly granted judgment on

the pleadings. In so doing, the Township argues, the trial court properly

determined Bell’s complaint attempted to state a claim for mandamus even though

Bell contends her complaint alleges a claim under Section 617 of the MPC. The

Township contends the trial court correctly ruled that Section 617 provides a cause

of action in and of itself, which is separate and distinct from Bell’s mandamus

claim. The Township also asserts that a claim under Section 617 is not intended to

be brought directly against a municipality or its governing body, but rather such a

claim is properly brought against the offending landowner. Because there is an

appropriate and adequate remedy for the purported zoning violations, namely an

action in equity under Section 617, Bell’s mandamus claim against the Township is

barred.

Further, the Township argues, Bell’s complaint seeks to compel the

Township to perform certain actions that fall within the Township’s discretionary

functions (i.e., investigation and enforcement of the zoning ordinance). It asserts

claims involving discretionary functions are not the proper basis for a mandamus

suit. Additionally, Bell’s mandamus claim fails because an alternative remedy

exists, namely a direct suit against the Millans, which Bell brought unsuccessfully

in 2005.

12

The Township also maintains that Bell’s reliance on Frye and Peden is

misplaced because those cases stand for the proposition that an equity action under

Section 617 of the MPC is to be brought against the offending landowner, not a

governing body or municipality. In other words, aggrieved landowners have a

right to take direct action with the trial court to have the trial court enforce a

zoning ordinance as to an offending landowner.

The Township also argues that Bell’s complaint is similar to the

appellant’s complaint in Hanson because in both instances the plaintiffs improperly

attempted to state claims for mandamus where a claim under Section 617 of the

MPC exists. Thus, the trial court properly dismissed Bell’s complaint.

In addition, the Township argues Bell’s complaint seeks to affect the

property interests and due process rights of the Millans, as well as their business,

Millan Blacktopping. Specifically, through her complaint Bell seeks an order

compelling the Millans to discontinue commercial operations on their property and

to remove the offending material and equipment. However, Bell did not join the

Millans or the corporate entity as defendants here. Thus, the Township asserts

Bell’s complaint should be stricken for failing to join parties whose rights or

interests are so pervasively connected with the claims asserted that no relief can be

granted without infringing on those rights or interests.

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B. Analysis

1. Hanson/Section 617 of the MPC

Upon review, we discern no error in the trial court’s grant of judgment

on the pleadings in favor of the Township based on our decision in Hanson.

In Hanson, a landowner filed a mandamus action in common pleas

court seeking an order requiring a township supervisor to enforce the township’s

zoning ordinance against an adjoining property owner. The landowner alleged the

adjoining property owner’s commercial activities violated the zoning ordinance in

several respects. He further averred the township refused to enforce the zoning

ordinance. The township filed preliminary objections to the mandamus claim,

which the common pleas court sustained. On appeal, we affirmed.

Specifically, we explained a mandamus action was improper because

Section 617 of the MPC7 specifically sets forth the procedure by which a

7 Section 617 of the MPC states:

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 or, with the approval of the

governing body, an officer of the municipality, or any aggrieved owner or

tenant of real property who shows that his property or person will be

substantially affected by the alleged violation, in addition to other

remedies, may institute any appropriate action or proceeding to prevent,

restrain, correct or abate such building, structure, landscaping or land, or

to prevent, in or about such premises, any act, conduct, business or use

constituting a violation. When any such action is instituted by a

landowner or tenant, notice of that action shall be served upon the

municipality at least 30 days prior to the time the action is begun by

serving a copy of the complaint on the governing body of the

(Footnote continued on next page…)

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landowner can seek relief from a neighbor’s zoning ordinance violations. We

stated, “this section provides for a more direct and orderly procedure than an action

in mandamus, which would at most order the [t]ownship to enforce ordinances and

probably precipitate more litigation directly involving [the adjoining landowner].”

Id. at 1223. Because Section 617 of the MPC provided the landowner with an

adequate remedy at law, mandamus was not appropriate. See also Riccardi v. Bd.

of Adjustment of Plymouth Twp., 394 Pa. 624, 149 A.2d 50 (1959) (sustaining

preliminary objections to mandamus suit seeking to compel building inspector to

enforce zoning ordinance and cause neighbor to tear down offending structure

where landowner had other adequate remedies, including instituting proceedings to

“restrain, correct or abate” an asserted ordinance violation himself).

Further, in Hanson, we noted the landowner had, in fact, filed a

separate civil suit against the adjoining property owner, which was pending at the

time we dismissed the landowner’s mandamus action.

Here, as in Hanson, Bell’s complaint alleges the Millans are

conducting prohibited commercial activities on the property. Similar to the

plaintiff in Hanson, Bell seeks an order compelling the Township to investigate

and, where appropriate, enjoin or prohibit the zoning ordinance violations. R.R. at

27a, 33a. Indeed, in her brief to this Court, Bell characterizes her present suit as

(continued…)

municipality. No such action may be maintained until such notice has

been given.

53 P.S. §10617.

15

“an action to compel the Defendant Township to enforce its ordinances.”

Appellant’s Br. at 27; see also Appellant’s Br. at 30, 31, 37. As in Hanson,

because Section 617 of the MPC provides Bell with an adequate remedy at law, a

mandamus action seeking to compel the Township to enforce its zoning ordinance

is not appropriate.

To that end, similar to the plaintiff in Hanson, Bell previously pursued

another remedy, a tort suit directly against the Millans and Millan Blacktopping.

R.R. at 125a-30a. However, that action was unsuccessful. R.R. at 658a-65a.

Bell’s lack of success in her prior suit against the Millans does not render that

remedy inadequate. See McGill v. Southwark Realty Co., 828 A.2d 430, 435 (Pa.

Cmwlth. 2003) (in determining whether remedy is “adequate,” we must look to its

availability and not the likelihood of its success); Ragano v. Rigot, 360 A.2d 779

(Pa. Cmwlth. 1976) (adequacy of a remedy at law is not measured by the success

or failure of a legal claim). Further, as the trial court observed, Section 617 of the

MPC was available as a potential adequate remedy against the Millans in 2005, but

Bell failed to avail herself of that remedy.

Nevertheless, Bell points to the fact that, while the trial court

characterized her complaint as an attempt to state a claim in mandamus, her

complaint actually references Section 617 of the MPC. However, as the trial court

observed, Bell’s complaint seeks an order “compelling” the Township “to

investigate, to review, to address and, where appropriate, to enjoin and/or prohibit

zoning code violations.” R.R. at 27a, 33a. We agree with the trial court that Bell’s

suit seeking to compel the Township to undertake these specific acts is aptly

16

characterized as an attempt to state a claim for mandamus. See, e.g., Campbell v.

Rosenberger, 632 A.2d 1094 (Pa. Cmwlth. 1993) (plaintiff’s complaint was aptly

characterized as a mandamus action where it sought court intervention to compel

performance of certain acts by government officials); see also Bell I, 30 A.3d at

559 (“we are not persuaded by the styling of Bell’s 2009 complaint as a mandamus

action as an argument against the application of res judicata/collateral estoppel to

it.”) (Emphasis added.) Based on Hanson, mandamus is not an appropriate remedy

here. Further, Bell’s attempts to distinguish Hanson are not persuasive.

Bell also points to the fact that in Bell I, this Court decided she was

not collaterally estopped from raising claims for changes in the conditions and

circumstances at the Millan property that post-date her 2005 suit. However, in Bell

I, this Court was not confronted with, and therefore did not address, the issue

presently before us, whether the Township is entitled to judgment on the pleadings

on Bell’s mandamus claim in light of our decision in Hanson. Nor did this Court

in Bell I consider the Township’s argument, addressed more fully below, that Bell

failed to name indispensable parties here, the Millans and Millan Blacktopping.

Moreover, Bell’s reliance on Peden is unavailing. There, a landowner

filed suit against a developer to require the developer to construct a large

vegetative buffer, as required by the zoning ordinance. Ultimately, the common

pleas court issued a permanent injunction requiring installation of the buffer. On

the developer’s appeal, this Court affirmed.

17

Our review of Peden reveals no discussion of the propriety of a suit

seeking to compel a municipality to enforce its zoning ordinance against an

offending landowner. Rather, our decision in Peden only addresses issues relating

to a landowner’s enforcement action under Section 617 of the MPC against an

offending neighbor. Thus, Peden does not support Bell’s position here.

In addition, our Supreme Court’s decision in Frye does not compel the

result Bell seeks here. That case involved a landowner’s suit against the city, its

officers, and an adjacent landowner who obtained permission to build a storage

building, but instead built a carrier pigeon loft in violation of the zoning ordinance.

After complaining to the zoning authorities, the landowner filed suit in common

pleas court. The landowner’s mandamus claim against the city was dismissed for

failure to exhaust administrative and statutory remedies. At the outset of its

opinion, the Supreme Court specifically stated the dismissal of the mandamus

claim against the city was not before it. Id. at 173, 584 A.2d at 947. As to the

landowner’s enforcement action against the offending neighbor, however, the

Supreme Court determined that equity action was appropriate and could proceed

without requiring the landowner to first exhaust administrative remedies.

Here, unlike in Frye, we are not confronted with the propriety of an

equity action against an offending neighbor, such as that sanctioned by the

Supreme Court in Frye and expressly authorized under Section 617 of the MPC.

Rather, this case concerns the propriety of Bell’s mandamus action against the

Township. In Frye, the Supreme Court expressly declined to address the propriety

18

of the landowner’s mandamus action against the municipality. Thus, Frye does not

support Bell’s position here.

2. Failure to Join Indispensable Parties

In addition to the fact that Bell’s mandamus claim against the

Township is improper because an alternative remedy exists, Hanson, Bell’s

complaint seeks relief that would directly affect the Millans and their business

without naming them or their business as parties to this suit.

Failure to join an indispensable party to a lawsuit deprives a court of

subject matter jurisdiction. Fulton v. Bedford Cnty. Tax Claim Bureau, 942 A.2d

240 (Pa. Cmwlth. 2008). A party is deemed indispensable when his rights are so

connected to the claims of the litigants that no decree can be made without

impairing those rights. Id.

In Fulton, we explained that Pennsylvania courts hold that property

owners are indispensable parties to lawsuits affecting their property rights. Id.

(citing Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377, 346

A.2d 788 (1975) (in litigation involving an easement, the fee simple owner of a

servient tenement is an indispensable party); Zerr v. Dep’t of Envtl. Res., Bureau

of State Parks, 570 A.2d 132 (Pa. Cmwlth. 1990) (United States, which owned the

mineral rights in a piece of property, was an indispensable party in adjacent

landowner’s suit to quiet title of strips of land along the boundary); Posel v.

Redevelopment Auth. of City of Phila., 456 A.2d 243 (Pa. Cmwlth. 1983)

(equitable owner in a piece of property is an indispensable party to an equity action

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attempting to stop the sale of the property to the equitable owner); Biernacki v.

Redevelopment Auth. of City of Wilkes-Barre, 379 A.2d 1366 (Pa. Cmwlth. 1977)

(owner of real estate is an indispensable party to proceedings seeking transfer of

title to property of another)); see also Pilchesky v. Dougherty, 941 A.2d 95 (Pa.

Cmwlth. 2008); Hart v. O’Malley, 647 A.2d 542 (Pa. Super. 1994).

Here, the relief sought by Bell would directly affect the Millans’

property rights. See R.R. at 27a, 33a (“WHEREFORE, the Plaintiff, prays that this

Court … enter an order compelling John Douglas Millan or Anne E. Millan, to

discontinue commercial operations upon the Premises and order the removal of the

offending material and equipment forthwith.”) (Emphasis added). Thus, the

Millans are indispensable parties. Fulton. Clearly, Bell cannot seek relief that

would affect the rights of the Millans without providing them notice and an

opportunity to be heard. The failure to join the Millans (and Millan Blacktopping)

deprived the trial court of subject matter jurisdiction, Fulton, and it provides an

alternative basis for dismissal of Bell’s suit.

While some of the defects in Bell’s complaint might be cured by

amendment, it is not clear she requested leave from the trial court to do so.

Moreover, after entry of judgment on the pleadings, it is generally too late to

amend the pleadings. See Bata v. Central-Penn Nat. Bank of Phila., 423 Pa. 373,

224 A.2d 174 (1966); see generally 6 STANDARD PENNSYLVANIA PRACTICE 2D

§31:23 (2009 ed.).

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For all the foregoing reasons, we affirm.

ROBERT SIMPSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Barbara J. Bell, : Appellant : : No. 2253 C.D. 2012 v. : : Township of Spring Brook, : Pennsylvania :

O R D E R

AND NOW, this 11th

day of July, 2013, the order of the Court of

Common Pleas of Lackawanna County is AFFIRMED.

ROBERT SIMPSON, Judge