533 A.2d 1104 | Pa. Commw. Ct. | 1987
Opinion by
John P. Wudkwych and Anna Marie, his wife (appellants) appeal an order of the Court of Common Pleas of Washington County (trial court) which sustained in part and dismissed in part certain preliminary objections filed, by the Borough of Canonsburg (Borough), the Boroughs Building Inspector, the Borough Manager, the Zoning Hearing Board (Board) of the Borough and the Zoning Officer of the Borough (appellees).
This case has had a somewhat tortured procedural history which we shall attempt to set forth briefly. In April 1982, the appellants filed a complaint in mandamus in the trial court against the appellees, alleging that they had filed an application for a variance seeking permission to remodel a brick building which they owned and which they wanted to use as a retail food shop. They averred that the Board had failed to conduct a hearing and issue a decision within sixty days of the filing of their petition and hence claimed entitlement to the variance, maintaining that the Boards failure to act in a timely manner constituted a deemed decision in their, favor.
Subsequent to the remand, the trial court permitted the appellants to file an amended complaint styled “Amended Civil Action — Mandamus.” In that complaint the appellants sought damages from the appellees for loss of rental income, loss of business profits, attorneys fees, interest, costs, and incidental damages. The amended complaint also contained a demand for a jury trial. The appellees filed preliminary objections to this amended complaint, and it is the trial courts disposal of certain of these preliminary objections that is presently before us for review.
The appellees have filed preliminary objections asserting, inter alia, that the right to a jury trial had been waived, that attorneys fees are not recoverable in this case, and that no cause of action in mandamus would lie against the Borough, Borough Manager, or Building Inspector because those parties have no authority to act upon a request for a variance or to issue an occupancy permit. These preliminary objections were all sustained. There were other preliminary objections filed as well, but their disposition is not herein appealed.
As to the question of whether or not the appellants were entitled to a jury trial, we recognize that our State ^ Supreme Court has held that mandamus is a statutory rather than a common law remedy and that no absolute right to a jury trial exists. Beckert v. Warren, 497 Pa. 137, 439 A.2d 638 (1981). Even assuming, however, that the appellants have such a right, Pa. R.C.P. No. 1007.1, which governs demands for jury trials, pertinently provides:
In any action in which the right to a jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty (20) days after service of the last permissible pleading.
The pleadings in an action are limited to a complaint, and answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto.
We note that “amended complaint” is not specifically denominated in this rule, but we do not believe this to mean that an amended complaint could not be a last permissible pleading. We believe, however, that a distinction must be drawn between an amended complaint filed in response to a preliminary objection filed near the time the suit was commenced and an amended complaint filed after a hearing, appeal and remand. In the latter situation, we are unpersuaded that an amended complaint would always fall within the ambit of Pa. R.C.P. No. 1017(a), and we think that other factors must be considered. Here the appellants knew they were incurring monetary damages at the time they filed their original complaint. This is evident because the complaint itself mentions those damages. Yet they never requested a jury trial on that issue. We believe, therefore, that the fact that they were fortunate enough to secure a remand for hearing on an issue which was mentioned in the original complaint should not operate to entitle them now to demand a jury trial on the issue of damages when they never demanded one initially on the issue of liability. See Stathas v. Wade Estate, 251 Pa. Superior Ct. 269, 380 A.2d 482 (1977) (appellants who were entitled to a new trial on the issue of damages
As to their right to attorneys fees, the trial court concluded that there was no statutory authority for such an award. The appellants contend that such authority does exist in Section 2503 of the Judicial Code, 42 Pa. C. S. §2503, which permits an award of attorneys fees where, inter alia, the other party has acted arbitrarily, vexatiously or in bad faith. We need not, however, decide whether or not Section 2503 applies to mandamus actions against local governments, for the appellants have not even alleged in their amended complaint that the appellees acted in an arbitrary or vexatious manner or that they acted in bad faith. We must conclude, therefore, that the trial court properly sustained the preliminary objection pertaining to attorneys fees.
Finally, we must decide whether or not the trial court properly sustained the demurrer as to the Borough, the Building Inspector and the Borough Manager. The appellants assert that the Board and the Zoning Officer have no independent legal existence apart from the Borough and hence that the Borough, Building Inspector and Borough Manager must be included in this action. They further assert that the Board and the Zoning Officer are merely agents of the other appellees. The appellees deny that their relation is one of agency and principal and further contend that, because the Borough, Building Inspector and Borough Manager have no authority to issue a variance or an occupancy permit, there is no duty which they could have breached and, hence, mandamus will not lie against them. It is, of course, axiomatic that in order for manda
We agree with the appellees that there is no showing of a duty on the part of the Borough, Building Inspector, or Borough Manager of this municipality to grant a variance or a certificate of occupancy. As to the contention that the Zoning Officer and the Board are mere agents whose principal must be joined, we are not inclined to view the relationship as such. The Board is a quasi-judicial body; the Zoning Officer in this case acted as its agent. And, while we acknowledge that the Borough is empowered to create the Board
We will, therefore, affirm the order of the trial court.
Order
And Now, this 27th day of November, 1987, the order of the Court of Common Pleas of Washington County in the above-captioned matter is affirmed insofar as it denied the appellants a jury trial, denied the appellants the right to seek attorneys fees, and sustained the demurrer with respect to the Borough of Canonsburg, the Building Inspector, and the Borough Manager.
See Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10908(9).
See Section 901 of the MPC, 53 P.S. §10901.
See Section 907 of the MPC, 53 P.S. §10907.