Penn Township v. Watt

618 A.2d 1244 (1992)

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Nature of the Case

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Facts

D is the owner of property in Penn Township. Part of the premises is located in a district zoned commercial and part in a low-density residential district. D commenced a business selling boats on the commercially zoned part of the property without obtaining the necessary certificate of use and occupancy and also began to use the residentially zoned portion of the property to store boats, motors, trailers and other materials including rubbish and debris in violation of the zoning requirements in the residential district. In May of 1986, P instituted an equity action seeking injunctive relief to bar D from, among other things, using the commercial portion of the property as a business until a certificate of use and occupancy was issued; using the residentially zoned portion of the property for storage and placement of debris; and dumping or burying rubbish, debris, refuse or other materials on the property. The first consent order was agreed to on November 12, 1986. On December 17, 1987, a new order was agreed to, and the court entered finding D in contempt of court for failure to comply with portions of the first order. In the final consent order, dated October 31, 1989, the parties agreed to a proposed order by which D was to remove 'all materials other than Class I and Class II materials, unless any of such Class II materials are hazardous or could otherwise cause contamination,' from a portion of the property by May 1, 1990. The order also prohibited open burning on the site and provided for the removal of articles and goods, such as boats and trailers, from the residential portion of the property within 30 days, for the payment of specified fees and costs by December 31, 1989, for inspections of the property and for D to furnish a performance bond in the amount of $100,000.00. In December of 1989, P filed a Petition for a Rule to Show Cause why D should not be held in contempt of court for failure to comply with the November 1986 and October 1989 court orders. This petition alleged that D had failed to remove various items from the property within 30 days of the October order and that D continued to allow dumping of prohibited materials on his property. D responded with an answer and new matter averring that he had complied with all terms and conditions of the October 31, 1989 order and asking the court to vacate all prior orders. On March 25, 1991, the trial court issued an order modifying a portion of paragraph 1 of the first order (November 12, 1986) to permit the dumping of grubbings, assessing attorney and engineering fees against D (pursuant to the December 17, 1987 order) in an amount of $11,338.00 and vacating the requirement for a performance bond (October 31, 1989 order). P appealed and argued that the trial court erred in modifying paragraph 1 of the 1986 D contends P waived modification of the consent decree by failing to raise the issue in the trial court and preserve it for review.