IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, :

Appellant :

:

 v. : No. 481 C.D. 2022

: SUBMITTED: October 10, 2023

Joseph G. Markle :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: November 3, 2023

The Commonwealth appeals the order of the Court of Common Pleas 

of Berks County sustaining the summary appeal of Joseph G. Markle (Landowner) 

and finding him not guilty of violating provisions of the Muhlenberg Township 

Zoning Ordinance.1 We vacate the order and remand to the trial court with 

instructions to dismiss the enforcement action.

1 Although the terminology and procedure, including the docketing, used by the trial court 

suggests that this matter is criminal in nature, enforcement actions under the Pennsylvania 

Municipalities Planning Code (MPC) and the Muhlenberg Township Zoning Ordinance are civil 

proceedings. Section 617.2(a) of the MPC, Act of July 31, 1968, P.L. 805, as amended, added by 

Section 62 of Act of Dec. 21, 1988, P.L. 1329, 53 P.S. § 10617.2(a) (“Any person . . . who . . . has 

violated . . . the provisions of any zoning ordinance enacted under this act . . . shall, upon being 

found liable therefor in a civil enforcement proceeding commenced by a municipality, pay a 

judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred 

by a municipality as a result thereof”) (emphasis supplied); Muhlenberg Township Zoning 

Ordinance § 355-147(a) (also referring to civil enforcement proceeding) 

https://ecode360.com/34547083 (retrieved Nov. 2, 2023). 

(Footnote continued on next page...)
2

In February 2021, Landowner was notified by Muhlenberg Township’s 

zoning and codes officer of various violations involving the presence of vehicles on 

his property under the Township’s zoning ordinance. (Reproduced Record “R.R.” 

at 76.) The letter required Landowner to abate the violations within 15 days and 

further informed him that failure to comply might result in penalties under the zoning 

ordinance and of his right to appeal pursuant to the zoning ordinance. The notice of 

his right to appeal read as follows: “[y]ou have the right to appeal this notice, 

provided that a written application for appeal is filed in accordance with the 

Muhlenberg Township Zoning Ordinance Section 355-145.”2 (R.R. at 76.) The 

violation letter did not state to whom an appeal should be filed or by what date. On 

March 11, 2021, the zoning officer filed a citation with the magisterial district judge

charging the noted violations. (Original R.3) Landowner pled not guilty. After a 

Furthermore, although we refer to the “Commonwealth” in accordance with the caption and 

the record, it is the Township which may pursue civil enforcement of the violation before a 

magisterial district judge.

2 Section 355-145 of the Ordinance reads as follows: 

A. All appeals concerning the review, application, interpretation 

and decisions authorized by this chapter of the Code shall be in 

accordance with the appropriate provisions that are established 

within the Muhlenberg Township Code and the [MPC]. 

B. All appeals concerning an alleged error in the processing or 

enactment of any components of this chapter of the Code shall 

be raised by appeal taken directly from the action of the Board 

of Commissioners to the appropriate court, which shall not be 

filed later than 30 days from the effective date of this chapter of 

the Code.

Muhlenberg Township Zoning Ordinance § 355-145 (relating to appeals). 

3 The citation and other records before the magisterial district judge are not present in the 

reproduced record. Thus, we have resorted to citing the original record, which is not paginated.
3

summary trial, the district judge found Landowner guilty and imposed fines, costs, 

and fees. 

Landowner appealed the matter to the trial court. After a trial de novo

the trial court found Landowner not guilty, determining that the violations were preempted by Landowner’s non-conforming use, which pre-existed the 2004 enactment 

of the relevant provisions of the zoning ordinance, citing our decision in Hafner v. 

Zoning Hearing Board of Allen Township, 974 A.2d 1204 (Pa. Cmwlth. 2016). The 

Commonwealth appealed the trial court’s order and the trial court directed the 

Commonwealth to file a concise statement of errors complained of on appeal, with 

which the Commonwealth complied. In a memorandum opinion issued under 

Pennsylvania Rule of Appellate Procedure 1925(a), Pa. R.A.P. 1925(a), the trial 

court rejected the Commonwealth’s arguments.

On appeal, the Commonwealth raises a single issue: whether 

Landowner’s failure to appeal the notice of violation to the Township’s Zoning 

Hearing Board precludes him from later challenging the enforcement action. 

(Commonwealth’s Br. at 6.)

It is true that our cases have held that a landowner’s failure to appeal a 

zoning officer’s notice of violation to a zoning hearing board renders the officer’s 

determination of violation binding and unassailable, depriving the magisterial 

district judges and the courts of common pleas of the ability to conduct a de novo

review on the question of whether the landowner violated the ordinance in question, 

leaving only the propriety of the penalty imposed subject to review. See, e.g., Lower 

Mt. Bethel Twp. v. Gacki, 150 A.3d 575, 580 (Pa. Cmwlth. 2016). The 

Commonwealth relies with particularity upon our recent, unreported decision in 

Commonwealth v. Litman (Pa. Cmwlth., Nos. 499 C.D. 2021, 525 C.D. 2021, 555 
4

C.D. 2021 and 554 C.D. 2021, filed May 6, 2022),4 wherein we held that the property 

owners’ “failure to appeal to the [z]oning [b]oard rendered the [t]ownship’s violation 

notice immune from any attack, even on constitutional grounds.” Id., slip op. at 19. 

However, we also stated: 

On the other hand, “[a] municipality's failure to comply 

with Section 616.1[5] precludes it from seeking penalties 

under Section 617.2 of the MPC.”[6][] In short, a 

municipality cannot initiate a civil enforcement 

proceeding “with a district [judge] unless an enforcement 

notice that complies with the requirements of the MPC has 

first been issued.” 

Id., slip op. at 9 [quoting Twp. of Lower Milford v. Britt, 799 A.2d 965, 968 (Pa. 

Cmwlth. 2002)]. Section 616.1(c) of the MPC provides that “an enforcement notice 

shall state at least the following: . . . (5) [t]hat the recipient of the notice has the right 

to appeal to the zoning hearing board within a prescribed period of time in 

accordance with procedures set forth in the ordinance.” 53 P.S. § 10616.1(c)(5) 

(emphasis supplied).

Here, Landowner, who is pro se, complains about the sufficiency of the 

notice of the violation, albeit somewhat confusingly. Nevertheless, the notice relied 

upon by the Commonwealth is clearly deficient, both because it fails to state that it 

is to the Zoning Hearing Board to which the violation notice must be appealed and

because it fails to provide a time within which the appeal must be filed. This failure 

4 Parties may cite an unreported panel decision of this Court issued after January 15, 2008 for 

its persuasive value, but not as binding precedent. See Pennsylvania Rule of Appellate Procedure 

126(b)(1), Pa. R.A.P. 126(b)(1); 210 Pa. Code § 69.414(a).

5 Section 616.1 of the MPC, added by Act of Dec. 21, 1988, P.L. 1329, 53 P.S. § 10616.1. 

6

See supra note 1.
5

to conform is fatal to the Commonwealth’s reliance on the violation notice to 

proceed to an enforcement action. As such, the proper remedy would have been for 

the trial court to dismiss the enforcement action.

As such, we vacate the order of the trial court and remand for the trial 

court to dismiss the enforcement action against Landowner. 

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, :

Appellant :

:

 v. : No. 481 C.D. 2022

:

Joseph G. Markle :

O R D E R

AND NOW, this 3

rd day of November, 2023, the order of the Court of 

Common Pleas of Berks County is VACATED and the matter is REMANDED with 

instructions to dismiss the enforcement action.

Jurisdiction is RELINQUISHED. 

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita