IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barney J. Osevala, III and :

Jill M. Osevala, husband and wife, :

Appellants :

:

v. :

:

William F. Gaudette and William F. :

Gaudette, III and Anne L. Gaudette, : No. 1329 C.D. 2019

husband and wife : Argued: September 15, 2020 

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION 

BY JUDGE FIZZANO CANNON FILED: October 9, 2020

Barney J. Osevala, III and Jill M. Osevala, husband and wife (together, 

Osevalas), appeal the November 21, 2018 order of the Court of Common Pleas of 

Dauphin County (trial court) sustaining the preliminary objections of William F. 

Gaudette (Gaudette Senior) and William F. Gaudette, III (Gaudette Junior) and Anne 

L. Gaudette, husband and wife,1to the Osevalas’ amended complaint and 

transferring the matter to the South Hanover Township Zoning Hearing Board 

(ZHB). Upon review, we reverse. 

1 As noted in the Gaudettes’ brief, Anne was estranged from Gaudette Junior for a number 

of years and the two are now divorced. Gaudettes’ Brief at 7 n.1. The Gaudettes claim that Anne 

signed over the deed to the property in question in marital equitable distribution and that they 

requested that the Osevalas stipulate to her dismissal from this action. Id. Purely to simplify 

matters, the Court will refer to the “Gaudettes” as owners of the property. 
2

The facts as asserted in the amended complaint are as follows. The 

Osevalas own and reside at 117 Stone Mill Road, Hummelstown, Pennsylvania 

located in South Hanover Township (Township). Am. Compl. ¶ 1, Reproduced 

Record (R.R.) at 138a. Gaudette Senior owns and resides at 48 South Hoernerstown 

Road, Am. Compl. ¶ 2, R.R. at 139a, and Anne and Gaudette Junior own and reside 

at 65 South Hoernerstown Road, both located in the Township, Am. Compl. ¶¶ 2-4, 

R.R. at 139a. The Osevala Property is across Stone Mill Road from the properties 

owned by the Gaudettes. Am. Compl. ¶ 6, R.R. at 139a. The Gaudette properties 

are located within the Township’s Floodplain District. Am. Compl. ¶¶ 7-8, R.R. at 

139a; ZHB’s Decision, 6/28/16, Finding of Fact (FOF) 10, R.R. at 207a-08a. 

Over the past 15 years, Gaudette Junior developed and operated a field 

hockey camp and training facility on the two properties. Am. Compl. ¶ 9, R.R. at 

139a. In order to construct and maintain the field hockey fields, Gaudette Junior 

transported large amounts of rock, fill, and soil onto the two Gaudette properties. 

Am. Compl. ¶ 10, R.R. at 139a-40a. Gaudette Junior and Senior never obtained a 

permit for placement of the fill or for any grading or excavation work, despite the 

fact that the properties are located within a floodplain. Am. Compl. ¶¶ 11-12, R.R. 

at 140a. The Osevalas claim that “[a]s a direct and proximate result of the placement 

of such fill on the properties, the floodplain has been impacted and both surface 

water runoff and flood waters have been directed onto [the Osevalas’] property.” 

Am. Compl. ¶ 14, R.R. at 140a. 

As such, the Osevalas filed a complaint in the trial court on October 14, 

2015. R.R. at 4a-18a. On January 7, 2016, the Gaudettes filed preliminary 

objections to the complaint in the nature of a demurrer and failure to join an 

indispensable party, namely the Pennsylvania Department of Transportation (DOT). 
3

R.R. at 19a-115a. Following oral argument, the trial court issued an order dated 

June 15, 2016, granting the Gaudettes’ preliminary objection pertaining to alleged 

violation of the Township ordinances and giving the Osevalas 30 days to amend the 

complaint to include the specific ordinances allegedly violated. R.R. at 133a. The 

trial court further noted, with the Gaudettes’ agreement, that the preliminary 

objection regarding the non-joinder of DOT was withdrawn. Id. The Osevalas filed 

their amended complaint on July 15, 2016, in compliance with the trial court’s order. 

R.R. at 135a-51a. 

Count I of the amended complaint asserted a private action under 

Section 617 of the Pennsylvania Municipalities Planning Code (MPC),2claiming 

that the Osevalas have been substantially affected by the Gaudettes’ placement of 

unpermitted fill on their properties. Am. Compl. ¶¶ 37-39, R.R. at 144a-45a. Count 

II of the amended complaint asserted, generally, an action to abate a public nuisance 

under both the Township’s Floodplain Ordinance and the Flood Plain Management 

Act.3 Am. Compl. ¶ 41, R.R. at 145a. The Osevalas claim that the Gaudettes’ filling, 

grading, and excavating of their properties constituted violations of the above and 

that the Osevalas qualified as aggrieved persons because their property has been 

directly impacted. Am. Compl. ¶¶ 41-42, R.R. at 145a-46a. Count III similarly 

asserted a public nuisance claim under the Township’s Stormwater Management 

Ordinance and Section 15(a) of the Storm Water Management Act.4 Am. Compl. ¶ 

44, R.R. at 146a. Finally, Count IV asserted a common law nuisance claim asserting 

that the Gaudettes’ alteration of the floodplain caused increased storm water runoff 

2 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10617. 

3 Act of October 4, 1978, P.L. 851, 32 P.S. §§ 679.101-679.601. 

4 Act of October 4, 1978, P.L. 864, as amended, 32 P.S. § 680.15(a). 
4

and directly impacted the Osevalas’ property and the quiet enjoyment thereof. Am. 

Compl. ¶¶ 47-48, R.R. at 147a. The Osevalas requested relief in the form of an order 

requiring the Gaudettes to: remove the fill and other materials placed on their 

properties in connection with the non-permitted development; restore the properties 

to their condition prior to the development; and abate the nuisance. Am. Compl. 

Wherefore Clauses, R.R. at 145a-47a. They also requested preliminary and 

permanent injunctive relief, costs, and attorney’s fees. Id. 

 Again, the Gaudettes filed preliminary objections to the amended 

complaint, this time for failure to exercise or exhaust a statutory remedy, and sought 

to have all four counts dismissed. See Pa.R.C.P. No. 1028(a)(7); R.R. at 152a-64a. 

The Gaudettes asserted two different arguments with respect to their theory of failure 

to exhaust, both of which pertained to an outstanding investigation with the 

Township relating to the alleged unpermitted fill. First, the Gaudettes argued that 

the Osevalas were required to exhaust their statutory remedy and obtain a final 

determination from the ZHB before bringing an appeal to the trial court. R.R. at 

162a. The Gaudettes argued that the Osevalas “[we]re prematurely asking [the trial 

court] to decide the very complaint that they raised with [the] Township and which 

[the] Township has yet to decide.” Id. Second, the Gaudettes argued that the trial 

court lacked jurisdiction over the subject matter of the action because the Osevalas 

had “a complete, adequate and exclusive remedy under the [MPC] . . . .” Id. (citing 

Ragano v. Rigot, 360 A.2d 779 (Pa. Cmwlth. 1976)). In essence, the Gaudettes 

asserted that the claims raised in the present civil action were identical to or at least 

premised upon those raised in a purportedly related action pending before the ZHB. 

While there is no related matter concerning the alleged unpermitted fill 

currently pending before the ZHB, we note that the Osevalas did file a complaint 
5

investigation form with the Township alleging the Gaudettes were operating an 

outside business in a residential area, and that they illegally placed landfill in a 

federally mandated floodplain. R.R. at 157a-58a, 178a, 206a-07a. Following an 

investigation, Township Zoning Officer Frank Chlebnikow (Zoning Officer) issued 

a letter to “Mr. William Gaudette”5 dated November 25, 2015 (Zoning Officer’s 

Letter), concluding that Gaudette was not currently operating a business from the 

properties and, therefore, was not in violation of the Township ordinance. R.R. at 

158a, 181a, 207a. The Zoning Officer’s Letter went on to state, in pertinent part:

Complaint Two – illegal landfill in federally mandated 

floodplain.

This complaint, placing illegal landfill in a federally 

mandated floodplain, is open and unresolved, and is 

currently being investigated by the Township. 

The Township would like to work with you to resolve this 

complaint as quickly as possible; therefore, please contact 

me within five (5) days of receipt of this letter to schedule 

an on-site meeting. Failure to respond will result in the 

Township turning the complaint over to the Township

Solicitor for formal enforcement action through the [] 

Township Zoning Office.

R.R. at 181a (underlining in original) (italics added).6 

5 The Zoning Officer’s letter was mailed to Gaudette Senior’s address, yet Gaudette Junior 

ran the field hockey club. As such, it is not clear for whom the letter was intended. 

6 We note that the documentation attached to the Gaudettes’ preliminary objections also 

indicates that on April 30, 2015, the Department of Environmental Protection (DEP), Bureau of 

Water Quality Protection (Bureau), received a complaint stating that “Bill Gaudette” of 65 South 

Hoernerstown Road brought fill in and placed it in a floodplain on the east side of Kellock Run. 

R.R. at 159a, 187a. In a letter dated May 19, 2015, Resource Conservationist Matthew Willard 

stated that he made a site inspection of the Gaudettes’ property to evaluate the erosion and 

sedimentation control measures and found no violations. R.R. at 159a-160a, 189a. The Gaudettes 

also attached to their preliminary objections Willard’s earth disturbance inspection report. R.R. at 
6

The Osevalas appealed the Zoning Officer’s determination that the 

Gaudettes were not operating a business on their property in violation of the 

Township’s ordinance. R.R. at 161a, 207a. Following several hearings, the ZHB 

issued a decision affirming the Zoning Officer’s determination solely on that issue. 

R.R. at 205a-12a.7 As of the filing of the Osevalas’ appeal to this Court, the 

Township has yet to issue a notice of violation pertaining to the alleged illegal fill, 

and as such, the ZHB has not considered the same. 

Returning now to the preliminary objections, following briefing and 

argument,8the trial court issued an order dated November 21, 2018 and filed 

November 26, 2018 (Trial Court Order), stating:

[the Gaudettes’] Preliminary Objections to [the] Amended 

Complaint are SUSTAINED. The Court may consider 

[the Osevalas’] claim for equitable relief only after 

disposition by the South Hanover Township Zoning 

Hearing Board.

We hereby TRANSFER the matter to the South Hanover 

Township Zoning Hearing Board.

R.R. at 231a. The Osevalas then appealed to the Superior Court, which transferred 

the matter to this Court. 

160a, 190a-93a. The Gaudettes’ preliminary objections do not assert that DEP has jurisdiction 

over any of the claims in the amended complaint or that the Osevalas had an administrative remedy 

before either DEP or the Bureau. 

7 Notably, the ZHB’s decision states, “[w]hether or not the noise level violates Township 

ordinances or constitutes a common law nuisance are not issues which this [ZHB] has authority to 

review.” ZHB’s Decision, 6/28/16 at 6, R.R. at 211a (emphasis added). 

8 We note that the action in the trial court was automatically stayed as a result of Gaudette 

Junior filing a Bankruptcy Petition in the United States Bankruptcy Court for the Middle District 

of Pennsylvania, and the action remained stayed until June 2018. See R.R. at 2a; Gaudettes’ Brief 

at 9-10. 
7

On June 27, 2019, the Gaudettes filed with this Court what was titled a 

“Motion to Strike Exhibit Outside the Record,” seeking to strike a December 19, 

2018 letter from the ZHB’s Solicitor. Motion to Strike, 6/27/19 at 1-3. The 

Gaudettes’ motion also argued that the Trial Court Order was not a final order, which 

the Pennsylvania Rules of Appellate Procedure (Pa.R.A.P. or Rules) define, in 

pertinent part, as an order that “disposes of all claims and of all parties . . . .” 

Pa.R.A.P. 341(b)(1). See Motion to Strike, 6/27/19 at 3-4. The Gaudettes argued 

that the Trial Court neither disposed of all claims nor disposed of all parties, 

therefore the appeal should be quashed. Id. By order dated December 2, 2019, this 

Court granted the portion of the motion seeking to strike the exhibit and ordered that 

the portion of the motion seeking to quash the appeal be listed for disposition along 

with the merits. Cmwlth. Ct. Order, 12/2/19. 

The Gaudettes now argue that the Trial Court Order is not an appealable 

order under any applicable statute or rule. Gaudettes’ Brief at 22-29. They 

specifically assert it does not meet the standard under Pa.R.A.P. 341(b)(1) because 

the Trial Court Order preserved the Osevalas’ claims by transferring them to the 

proper forum—the ZHB. Gaudettes’ Brief at 24. Moreover, the Gaudettes argue 

that even though the Trial Court Order states that the preliminary objections are 

sustained, it did not dismiss the Osevalas’ claims based on private nuisance, “but 

rather determined that the claims would be addressed by the [trial c]ourt ‘after 

disposition by the [] Board.’” Id. at 25 (quoting Trial Court Order, R.R. at 231a). 

The Osevalas, in turn, argue that their underlying case in the trial court 

involves private causes of action authorized by Pennsylvania statutes that do not 

require or even authorize the involvement of the ZHB. Osevalas’ Brief at 8, 10-13. 

Rather, the courts of common pleas and the Commonwealth Court are vested with 
8

jurisdiction over such claims and, therefore, the trial court lacked authority to 

transfer the matter to the ZHB. Id. at 10-13. As such, the Osevalas argue that the 

Trial Court Order constitutes a final order disposing of all claims and of all parties 

pursuant to Pa.R.A.P. 341(b)(1). Id. at 13-15.

In general, only final orders of a government unit or trial court may be 

appealed to an appellate court. Pa.R.A.P. 341(a). As stated earlier, Rule 341(b)(1) 

defines a final order as “any order that . . . disposes of all claims and of all parties . 

. . .” Pa.R.A.P. 341(b).9 When a trial court sustains preliminary objections, with no 

leave to amend the complaint, judgment is entered in favor of the defendant; this is 

a final appealable order. See Feingold v. Bell of Pa., 383 A.2d 791, 792 n.1 (Pa. 

1977); Hudock v. Donegal Mut. Ins. Co., 264 A.2d 668 (Pa. 1970); see also 20 Pa. 

Appellate Practice § 341:3:1 (West 2019-2020 ed.). Importantly, the Gaudettes’ 

preliminary objections sought to dismiss all four counts of the amended complaint 

in their entirety, and the trial court sustained the objections. Thus, the order 

sustaining the preliminary objections was a final appealable order as it disposed of 

all claims and all parties. There was nothing left for the trial court to transfer to the 

ZHB, and the trial court erred to the extent that its order purports to make such a 

transfer. Therefore, the Gaudettes’ motion to quash the appeal is denied. 

Turning now to the merits of the trial court’s decision to sustain the 

preliminary objections, we examine each count of the amended complaint. Count I 

purports to assert a cause of action under Section 617 of the MPC, 53 P.S. § 10617, 

for violation of the Township’s ordinance and to abate the Gaudettes’ placement of 

9

It is undisputed that the trial court did not make an express determination that an 

immediate appeal would facilitate resolution of the entire case, nor did the Osevalas file an 

application for a determination of finality pursuant to Pa.R.A.P. 341(c). 
9

non-permitted fill on their properties. See R.R. at 144a-45a. Section 617 of the MPC 

provides:

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 municipality. No such action may 

be maintained until such notice has been given.

53 P.S. § 10617 (emphasis added). By its plain language, this section permits a 

private cause of action where a violation is “alleged” and does not require that a 

violation be finally determined by a municipality before an action can be brought. 

Id. Additionally, this Court has previously rejected an argument that Section 617 

deprives a court of jurisdiction in equity because there are other statutory remedies 

available to the moving party “under the township’s zoning and land use ordinances, 

and presumably under Acts of the General Assembly.” South Fayette Twp. v. The 

Boy’s Home, 376 A.2d 663, 665 (Pa. Cmwlth. 1977). This Court found this 

argument “totally devoid of merit” and held that Section 617 of the MPC empowers 

actions to restrain the use of land in violation of township ordinances enacted 
10

pursuant to the MPC. Id.; see also, Bradley v. South Londonderry Twp., 440 A.2d 

665, 668-69 (Pa. Cmwlth. 1982) (noting there is no requirement to exhaust statutory 

remedies before seeking to enjoin alleged violation of zoning ordinance in equity 

action in court of common pleas). 

Counts II and III of the amended complaint assert private actions to 

abate a public nuisance under the Flood Plain Management Act and the Storm Water 

Management Act, respectively, for violation of Township ordinances and for 

violation of the acts themselves. See R.R. at 145a-46a. These actions do not require 

exhaustion of remedies before the zoning hearing board before they can be brought 

in the court of common pleas. The Pennsylvania Supreme Court’s decision and 

analysis in Frye Construction, Inc. v. City of Monongahela, 584 A.2d 946 (Pa. 1991),

is both analogous and instructive. As this Court has stated: 

In Frye, a landowner constructed a carrier pigeon loft in 

his backyard contrary to the permissible uses in the zoning 

ordinance. Thereafter, an adjacent landowner filed a 

complaint in equity to enforce the ordinance. Relying on 

Section 617 of the MPC, the Court determined that the 

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.” [Frye,] 584 A.2d at 948. Further, the Frye Court 

held that when, “deliberate violations of a zoning 

ordinance have the effect of wrongfully infringing on the 

property rights of a neighbor, that neighbor is entitled to 

prompt vindication in a court of equity without regard to 

alternate administrative remedies that might be available. 

We have always so held and we continue to do so.” Id. at 

[] 948.

Peden v. Gambone Bros. Dev. Co., 798 A.2d 305, 312 (Pa. Cmwlth. 2002). 
11

Similarly, here we find that the Osevalas, as adjacent landowners, have 

an independent right to seek equitable relief under both the Storm Water 

Management Act and the Flood Plain Management Act. As neighbors claiming that 

their property has been affected by the placement of alleged non-permitted fill on 

the adjacent property, they are entitled to have their case heard in a court of equity 

without regard to alternate administrative remedies that might be available. Such an 

interpretation is consistent with the following sections of the Storm Water 

Management Act: Section 16(b), 32 P.S. § 680.16(b), providing “[i]t is hereby 

declared to be the purpose of this act to provide additional and cumulative remedies 

to abate nuisances”; Section 13, 32 P.S. § 680.13, setting forth obligations of 

landowners engaged in the alteration of land to implement measures reasonably 

necessary to prevent injury to health, safety, or other property; and Section 15, 32 

P.S. § 680.15, stating any person injured due to violations of the act can recover 

damages in an action at law and may further seek injunctive relief in an action in 

equity. See also Merlino v. Delaware Cty., 711 A.2d 1100 (Pa. Cmwlth. 1998) 

(holding aggrieved landowners had standing to bring a private cause of action under 

the Storm Water Management Act). Notably, Section 502(b) of the Flood Plain 

Management Act also provides that “[s]uits to restrain, prevent or abate violation of 

this act or of any flood plain management regulations may be instituted in equity or

at law by . . . any aggrieved person.” 32 P.S. § 679.502(b). 

Moreover, Section 502(b) of the Flood Plain Management Act provides 

that “[s]uch proceedings may be prosecuted in the Commonwealth Court, or in the 

court of common pleas of the county where the obstruction exists, conduct occurs, 

or the public affected, and to that end jurisdiction is hereby conferred in law and 
12

equity upon such courts.” 32 P.S. § 679.502(b). The Storm Water Management Act 

contains a similar provision, stating: 

[s]uits to restrain, prevent or abate violation of this act or 

of any watershed storm water plan, regulations or 

ordinances adopted hereunder, may be instituted in equity 

or at law by the department, any affected county or 

municipality, or any aggrieved person. Except in cases of 

emergency where, in the opinion of the court, the 

circumstances of the case require immediate abatement of 

the unlawful conduct, the court may, in its decree, fix a 

reasonable time during which the person responsible for 

the unlawful conduct shall correct or abate the same. 

32 P.S. § 680.15. Neither act requires that a township or zoning hearing board finally 

determine the issue of a violation prior to the assertion of a claim by an aggrieved 

person before a court. As such, those parts of Counts II and III asserting violations 

of the Flood Plain Management Act and Storm Water Management Act were 

properly before the trial court and the trial court erred in sustaining the preliminary 

objections to these counts.

Lastly, Count IV of the amended complaint contains a common law 

nuisance claim. The ZHB lacks jurisdiction over the Osevalas’ public nuisance 

claim and the trial court erred in sustaining preliminary objections based upon any 

ZHB remedy or ZHB jurisdiction. See Section 909.1 of the MPC, 53 P.S. § 10909.1; 

see also ZHB’s Decision, 6/28/16 at 6; R.R. at 211a (acknowledging ZHB lacks

jurisdiction over common law nuisance claim). Where “a nuisance exists, equity 

may intervene to enjoin it even though there has been compliance with zoning acts 

and ordinances.” Mazeika v. Am. Oil Co., 118 A.2d 142 (Pa. 1955). See also White 

v. Old York Rd. Country Club, 185 A. 316, 318 (Pa. 1936) (providing “ordinances 

and the action of the authorities thereunder, [are] not controlling in cases involving 
13

nuisances”); Walker v. Del. Cty. Tr. Co., 171 A. 458, 459 (Pa. 1934) (noting “[a]cts 

of municipal officers under zoning legislation permitting the use of property for what 

is or may be a nuisance do not oust the jurisdiction of equity to determine whether a 

nuisance in fact exists and should be restrained”); Appeal of Perrin, 156 A. 305, 

307 (Pa. 1931) (same). 

Accordingly, the Gaudettes’ motion to quash is denied. The trial 

court’s order sustaining the Gaudettes’ preliminary objections and purporting to 

transfer the matter to the ZHB is reversed, and the matter is remanded to the trial 

court. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barney J. Osevala, III and :

Jill M. Osevala, husband and wife, :

Appellants :

:

v. :

:

William F. Gaudette and William F. :

Gaudette, III and Anne L. Gaudette, : No. 1329 C.D. 2019

husband and wife :

O R D E R

AND NOW, this 9th day of October, 2020, Appellees’ Motion to Quash 

the Appeal is hereby DENIED. The order of the Court of Common Pleas of Dauphin 

County (trial court) sustaining the Preliminary Objections of the Appellees is 

REVERSED, and the matter is REMANDED to the trial court. 

Jurisdiction relinquished. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge