IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Borough of Indian Lake :
: No. 22 C.D. 2015
v. :
: Submitted: June 12, 2015
David A. Rohrich, :
Appellant :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 27, 2015
David A. Rohrich (Appellant) appeals from the December 8, 2014 order
of the Court of Common Pleas of Somerset County (trial court), denying Appellant’s
post-trial motion and affirming a verdict entered by the trial court on October 22,
2014. In this verdict, the trial court entered judgment in favor of the Borough of
Indian Lake (Borough) and directed Appellant to disconnect his two-story garage
from his existing on-lot sewage system and apply for a proper sewage permit. The
trial court concluded that Appellant’s connection of the garage to the on-lot sewage
system without a permit was a violation of section 7 of the Pennsylvania Sewage
Facilities Act (Act)1 and that such violation constituted a nuisance pursuant to section
14 of the Act, 35 P.S. §750.14.
The underlying facts of this case are not in dispute and have been
stipulated to by the parties. On July 25, 2003, Appellant submitted an application for
1
Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. §750.7.
an on-lot sewage disposal system permit for his residential property located at 242
South Peninsula Drive, Indian Lake, Somerset County, Pennsylvania.2 This
application was approved by Jerry Mostoller, the Borough’s sewage enforcement
officer, on September 13, 2003, and the permit was issued to Appellant. Mostoller
conducted a final inspection of the sewage system on October 23, 2006, and approved
the same. (Joint Stipulations at 1-2, 4; Reproduced Record (R.R.) at 42a.)
In the meantime, on May 5, 2005, Appellant applied for and received a
building permit to construct a two-story, detached garage. In this application,
Appellant stated that “[t]here are no living quarters on the upper story of this
structure.” (R.R. at 52a.) Appellant also placed his initials next to a statement from
Frederick Jones, the Borough’s zoning officer, agreeing that there would be “[n]o
living quarters or plumbing in space above garage.” (Joint Stipulations at 3; R.R. at
58a.) At the time of Mostoller’s final inspection on October 23, 2006, the second
floor of the detached garage did not contain finished living quarters or plumbing and
the garage was in no way connected to Appellant’s on-lot sewage disposal system.
(Joint Stipulations at 3, 5; R.R. at 42a-43a.)
Mostoller later learned that Appellant had finished the second floor of
the detached garage and that various plumbing fixtures, including a sink, toilets, and a
shower, had been connected to the existing on-lot sewage disposal system at some
point in 2007. Appellant never applied for a permit relative to this connection, nor
did he ever notify the Borough of his intention to connect the second-floor plumbing
2
In this application, Appellant sought permission to install a 1,250 gallon septic tank to
replace an existing damaged tank that serves his four-bedroom house, boat house, and gazebo.
(Reproduced Record at 46a-48a.)
2
to the existing system.3 In connecting the later-installed plumbing of the detached
garage to the existing system, Appellant did not repair, replace, disturb, or modify his
soil absorption area or the soil within or under this area. Despite repeated requests by
the Borough, Appellant has neither applied for nor obtained a permit to connect the
second-floor garage plumbing to the existing on-lot sewage disposal system. (Joint
Stipulations at 6-11; R.R. at 43a-44a.)
On April 5, 2013, the Borough filed a complaint in equity with the trial
court seeking an injunction directing Appellant to cease utilizing the on-lot sewage
disposal system for the detached garage, declaring such use a violation of the Act
and, hence, a nuisance, and directing Appellant to apply for and obtain an appropriate
sewage permit. Appellant filed preliminary objections, which were overruled by the
trial court. Appellant then filed an answer admitting that the second floor of his
detached garage includes a bathroom with a shower, sink, and toilet, and that these
fixtures are connected to the existing on-lot system, but denying that such connection
violated the Act or constituted a nuisance.
In new matter, Appellant asserted that the Borough failed to state a
claim, noting that the Borough had twice inspected and approved the on-lot system
subsequent to garage connection and that the system had never failed. Appellant also
asserted that his on-lot system was in compliance with all applicable statutes and
regulations and met the minimum capacity needed to serve both his residence and the
garage. Further, Appellant asserted that the Borough’s claims were barred by the
doctrines of estoppel, res judicata, and laches, and by the statute of limitations. The
Borough filed a reply to this new matter essentially denying these assertions.
3
In a separate land use appeal, the trial court concluded that the detached garage did not
constitute a separate dwelling and did not violate the Borough’s zoning ordinance. (Joint
Stipulations at 9; R.R. at 43a.)
3
The matter was scheduled for a non-jury trial on June 17, 2014.
However, on that date, the parties submitted joint stipulations to the trial court rather
than proceed with testimony. These joint stipulations were approved by the trial
court that same day. Following the submission of briefs, on October 22, 2014, the
trial court issued a verdict entering judgment in favor of the Borough. The trial court
directed Appellant to disconnect his garage from the existing on-lot sewage disposal
system and apply for a proper sewage permit. The trial court concluded that
Appellant’s connection of the garage to the on-lot system without a permit was a
violation of section 7(a)(1) of the Act, which prohibits a person from connecting to
“an individual sewage system . . . without first obtaining a permit,” 35 P.S.
§750.7(a)(1), and that such violation constituted a nuisance pursuant to section 14 of
the Act.4
In an accompanying opinion, the trial court explained that Appellant’s
connection of his garage to his on-lot sewage disposal system constituted a violation
of the clear language of section 7(a)(1) of the Act requiring a permit for such
connection. The trial court rejected Appellant’s argument that section 7(a)(1) of the
Act was vague insofar as it did not define what types of activities constitute
connections to an individual sewage system and that the trial court should look to
section 72.22 of the Department of Environmental Protection’s sewage facilities
regulations, 25 Pa. Code §72.22, for guidance on this issue.5 Relying on section
4
Section 14 of the Act provides, in pertinent part, that “[a] violation of section 7 of this act .
. . shall constitute a nuisance and shall be abatable in the manner provided by law.” 35 P.S.
§750.14.
5
Section 72.22 of these regulations states, in pertinent part, as follows:
(a) No person may install, award a contract for construction or
construct an individual or community onlot sewage system, or install,
construct, occupy or use a building to be served by that system
(Footnote continued on next page…)
4
72.22(b) of this regulation and the joint stipulations, Appellant argued that the record
did not establish that there was a repair, replacement, enlargement, disturbance, or
modification of his treatment tank or soil absorption area and, hence, a permit was not
required. However, the trial court reiterated that section 7(a)(1) of the Act clearly
prohibits connection to an existing, on-lot system without first obtaining a permit and,
consequently, there was no need to rely on section 72.22 of the sewage facilities
regulations.6
Appellant thereafter filed a motion for post-trial relief seeking a
judgment notwithstanding the verdict, alleging that the trial court, in relying solely on
section 7(a)(1) of the Act, failed to give effect to section 9 of the Act, 35 P.S. §750.9,7
and to section 72.22(b) of the sewage facilities regulations. Appellant averred that
(continued…)
without first obtaining a permit from the local agency, except as
provided in subsections (c)—(e).
(b) A permit shall be required by the local agency for alterations or
connections to an existing individual or community onlot sewage
system when the alteration or connection requires the repair,
replacement or enlargement of a treatment tank or retention tank, or
the repair, replacement, disturbance, modification or enlargement of a
soil absorption area or spray field, or the soil within or under the soil
absorption area or spray field.
25 Pa. Code §72.22(a)-(b).
6
The trial court also noted that section 72.22 “does not provide an exhaustive list of what
might constitute a connection as envisioned under the Act, nor does it explicitly define or identify
what sort of connection gives rise for the need to obtain a permit.” (Trial court op., October 22,
2014, at 9.)
7
Section 9 of the Act authorizes the Environmental Quality Board, inter alia, to adopt rules
and regulations that “establish standards for the construction, installation, alteration, maintenance
and operation of individual sewage systems and community sewage systems . . . .” 35 P.S. §750.9.
5
these sections must be read in pari materia. Appellant also reiterated his previous
allegation that section 72.22(b) of the regulations controls the disposition of this
matter and requires entry of a judgment in his favor.
By memorandum and order dated December 8, 2014, the trial court
denied Appellant’s post-trial motion. The trial court emphasized that section 7(a)(1)
of the Act “unequivocally states that no person shall connect to an individual sewage
system without first obtaining a permit.” (Trial court op., December 8, 2014, at 4.)
The trial court rejected an argument by Appellant that section 7(a)(1) of the Act was
not controlling because it did not set forth a “complete and exhaustive scheme of
regulation for the subject matter at issue.” Id. (citing Appellant’s Post Trial Motion at
2; R.R. at 166a.) The trial court also rejected Appellant’s argument that section
72.22(b) of the sewage facilities regulations represents “the exclusive authority
regarding permitting requirements for connecting to existing sewage systems.” Id.
(emphasis in original).
The trial court concluded that sections 7 and 9 of the of the Act, and
section 72.22(b) of the sewage facilities regulations, need not be read in pari materia
because this rule only applies if the words of a statute are ambiguous and section 7 is
clear and unambiguous. The trial court agreed with Appellant that section 7 of the
Act did not set forth a “complete and exhaustive scheme of regulation for the subject
matter at issue,” but noted that section 72.22(b) of the sewage facilities regulations
likewise did not provide a complete and exhaustive scheme of regulations. Rather,
the trial court stated that section 72.22(b) merely provides “an outline of certain
specific instances that absolutely trigger the need for a sewage permit.” (Trial court
op., December 8, 2014, at 5.) As to the comments to section 72.22(b), upon which
Appellant relied in arguing that a permit was not required to connect his garage to his
on-lot system, the trial court characterized the actions discussed therein as merely
6
“incidental,” such as lifting the lid of a septic tank or unclogging a line in an
absorption area; whereas “[c]onnecting a new building to an existing system . . . goes
far beyond those types of actions that the General Assembly contemplated would not
prompt the need for a permit.” (Trial court op., December 8, 2014, at 6.)
On appeal to this Court,8 Appellant argues that the trial court erred in
concluding that he violated section 7(a)(1) of the Act by failing to obtain a permit
prior to connecting his detached garage to his pre-existing, on-lot sewage disposal
system. More specifically, Appellant argues that his actions constituted an exception
to the general rule requiring permits, consistent with section 72.22(b) of sewage
facilities regulations.
Having reviewed the record and the trial court’s opinions in this matter,
we conclude that the issues raised by Appellant have been thoroughly reviewed and
addressed in the opinions of the Honorable John M. Cascio. Accordingly, we affirm
on the basis of the trial court’s opinions in Borough of Indian Lake v. David A.
Rohrich, (Court of Common Pleas of Somerset County, No. 206 Civil 2013, filed
October 22 and December 8, 2014).
________________________________
PATRICIA A. McCULLOUGH, Judge
8
Our scope of review of a judgment following a non-jury trial is limited to determining
whether the trial court's factual findings are supported by substantial evidence and whether the trial
court committed an error of law. McGaffic v. City of New Castle, 74 A.3d 306, 310 n.8 (Pa.
Cmwlth. 2013).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Borough of Indian Lake :
: No. 22 C.D. 2015
v. :
:
David A. Rohrich, :
Appellant :
ORDER
AND NOW, this 27th day of August, 2015, the order of the Court of
Common Pleas of Somerset County (trial court), dated December 8, 2014, is
hereby affirmed on the basis of the trial court’s opinions issued by the Honorable
John M. Cascio in Borough of Indian Lake v. David A. Rohrich, (Court of
Common Pleas of Somerset County, No. 206 Civil 2013, filed October 22 and
December 8, 2014).
________________________________
PATRICIA A. McCULLOUGH, Judge