IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Barbara J. Bell, : Appellant : : No C.D 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.

2 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. 2

3 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. 3

4 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 nonconforming 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 4

5 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 nonconforming 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 5

6 2005 complaint]. Id. at 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 Code 3 (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

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 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). 7

8 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. 8

9 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. 9

10 to the zoning ordinance. governmental body, in this case, the Township. Rather, that authority rests with the applicable 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 of the MPC, 6 53 P.S 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 was added by the Act of December 21, 1988, P.L

11 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

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. 12

13 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 MPC 7 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 ) 13

14 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 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 ) 53 P.S municipality. No such action may be maintained until such notice has been given. 14

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 15

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. 16

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 17

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 18

19 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.). 19

20 For all the foregoing reasons, we affirm. ROBERT SIMPSON, Judge 20

21 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Barbara J. Bell, : Appellant : : No C.D v. : : Township of Spring Brook, : Pennsylvania : O R D E R AND NOW, this 11 th day of July, 2013, the order of the Court of Common Pleas of Lackawanna County is AFFIRMED. ROBERT SIMPSON, Judge