IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania : CASES CONSOLIDATED

:
v. : Nos. 499 C.D. 2021

: 555 C.D. 2021 Donald Litman, :

Appellant :
Commonwealth of Pennsylvania :
:
v. : Nos. 525 C.D. 2021

: 554 C.D. 2021 Celia Litman, : Argued: March 10, 2022

Appellant :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH , Judge

HONORABLE STACY WALLACE , Judge HONORABLE MARY HANNAH LEAVITT
, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE LEAVITT FILED: May 6, 2022

Donald and Celia Litman (Landowners) appeal two order s 1 of the Court of Common Pleas of Montgomery County (trial court) that denied their appeals of two judgments of the Magisterial District Court holding them liable for not obtaining a permit for the accessory structure on their residential property
, in violation of Towamencin Township ’s Zoning Ordinance. 2 Accordingly, the trial court ordered

Landowners to remove the accessory structure , which was a trailer, upon penalty of

1 Landowners appealed the trial court’s November 2, 2020, and December 8, 2020, orders. On June 17, 2021, this Court granted Landowners’ Ap plication for Consolidation of Appeals.

2 T OWAMENCIN T OWNSHIP Z ONING O RDINANCE of 1956, as amended by Ordinance No. 95

- 10 of 1995 ( Z ONING O RDINANCE ) , §§153

- 100

— 153

- 1301.2

a fine of $10,000 and $500 for each day the trailer remained on the property

. On appeal, Landowners argue that the Township’s zoning vi olation notice was invalid

because it did not sufficiently describe the violation or its consequences; the zoning officer did not have authority to initiate criminal proceedings against Landowners ;
and the trailer on Landowners’ property was not an accessory structure. After

review , we affirm the trial court

. Background

Landowners own a single

- family detached residence located at 43 Saratoga Lane , Harleysville
, in Towamencin Township
, Montgomery County. In
2019, Landowners built a new driveway on which they placed a trailer. They

attached utilities to the trailer and constructed a plywood deck to facilitate access to

the trailer from the house

. T he Township concluded that the trailer was “ an accessory structure , ” for which Landowners had not obtained a permit

. On August
9, 2019, the Township’s Zoning Officer, Jennifer Guckin, sent a violation notice to
Landowners, which stated:

The Township has observed that an accessory structure has been constructed and/or placed on your property. A permit was not obtained for this project. Construction without a permit is in violation of []Section 153

- 204 of the Towamencin Township Zoning Code [.]

Reproduced Record at 224 (R.R. __). The violation notice further stated :

The township is requiring you to obtain a permit or remove the
structure and cease any work being done upon receipt of this notice.

The Township is ordering you to correct these violations within 10 days of the date of this notice . Failure to comply with this notice wil l result in the Township taking legal action, which will3 include the filing of citations with the District Justice [ 3 ] seeking fines and/or penalties of up to $500.00 for each violation, each and every day a violation continues is deemed a separate offense

. Id. (emphasis in original)

.

T he violation notice explained that Landowners had a right to appeal

the n otice to the Township’s Zoning Hearing Board (Zoning Board) and provided directions on how to file such an appeal

. Specifically, it stated:

Appeal Rights: You have the right to appeal this notice to the [ Zoning Board ] within thirty (30) days from the above date. This notice is for Zoning Ordinance Violations only. Such ap peals must be via the [ Zoning Board ] application process. Applications may be obtained at the Towamencin Township Municipal Building between the hours of 8:00am through 4:30pm Monday through Friday or on the Township website at www.towamencin.org . All [ Zoning Board ] application fees in the Towamencin T ownship Fee Schedule shall apply.

R.R. 225.

Landowners did not remove the trailer . They did not obtain a permit for the accessory structure , and they did not appeal the violation notice to the Zoning

Board. Accordingly, on September 26, 2019, Zoning Officer G u c kin initiated

a n enforcement proceeding before the Magisterial District Court seeking the imposition of fines upon Landowners for their violation of the Zoning Ordinance

. On December 3, 2019, after a hearing, the Magisterial District Court found that

Landowners violat ed the permit requirement in Section 153

- 204 of the Zoning

3 District justices w ere redesignated as magisterial district judge s by the Act of November 30, 2004, P.L. 1618, No. 207.4

Ordinance and imposed a fine of $500 plus costs. R.R. 213, 277. On January 2,
2020, Landowners appealed the orders of the Magisterial District Court

.

At the trial court hearing on August 27, 2020, Donald Litman , who is
an attorney, represented himself and his wife. The trial court affirmed the Magisterial District Court and gave Landowners 30 days to remove the trailer. Additionally, the trial court ordered a fine of “$10,000 plus $500 per day thereafter

until the [ accessory ] structure i s removed

. ” Trial Court P A

. R.A.P. 1925(a) O p. at 3; R.R. 9.

Landowners retained counsel, who filed a motion for reconsideration
, which the trial court granted . In doing so, the trial court rescinded its September 1,
2020, orders. The hearing on reconsideration was held on October 23, 2020 , at

w hich Zoning Officer Gu c kin and Donald Litman both testified

.

Zoning O fficer Gu c kin testified that she has served as the Township’s

Z oning O fficer for five years. She is a licensed professional engineer and has worked for engineering firms, land use developers, and three municipalities. She also has served on two zoning hearing boards. S ometime before August 9, 2019,

she received “ complaints that there was an accessory structure constructed on [Landowners’] property[, but] there [were] no records th at there had been a permit request for that [structure] .” Notes of Testimony, 10/23/2020, at 27 (N.T. __) ; R.R.

117. She visited Landowners’ property and found the accessory structure to be “a

small home

- like structure ” with electrical service . N.T. 31; R.R. 121. Based upon her inspection , Zoning Officer Guckin sent a violation notice to Landowners on August 9, 2019.

On cross

- examination, Guckin acknowledged that the violation notice

did not specif

y that the accessory structure was the trailer . She a lso acknowledged5

that she did not contact Landowners prior to issuing the violation notice , and she did not inspect the inside of the trailer

. Guckin agreed that the trailer had tires, a hitch, and a license plate. She testified that , in her opinion, what made the trailer a
permanent structure were the blocks keep ing it in place, the utilities, and the man

made ramp , or decking, between the house and the trailer

.

Donald Litman testified that he
, his wife and their two sons live in the

house on Saratoga Lane in Harleysville. He explained that their 25

- year

- old son,
who has disabilities, will need to “live independently” in the future

. N.T. 66; R.R.

156. Initially, Landowners sought to put an addition onto the house
, to use as a
classroom fo r their son to learn household tasks , such as cooking and cleaning. However, their request for a variance was denied. Litman testified that t he Chairman

of the Zoning Board advised him that he could put a trailer on the property because they were “ lookin g for [] a classroom for a short period of time[.]” N.T. 67; R.R.

157. Litman testified that they put it in a new driveway and leased a trailer on or about May 22, 2019.

Litman testified that he was confused by the Township’s violation

notice because the trailer was not “ construct ed” as stated in the violation notice but
, rather, a vehicle registered with the Pennsylvania Department of Transportation

. Litman sent an email to Zoning Officer Guckin seeking clarification and requesting

her to wi thdraw the violation notice

. When Guckin did not respond
, Litman believed

the notice had been withdrawn “because it [was] so ridiculous[] on its face [.] ” N.T.
71; R.R. 161. Litman explained that he did not think that the trailer was a “ structure ”

becaus e it wa s a motor vehicle and movable, albeit fixed on “jack stands

. ” N.T. 72;

R.R. 162. Further, the trailer was not intended to be permanent.6 Litman testified that he removed the trailer after the trial court issued

the September 2020 order . He leas ed another trailer for a classroom but remove d it

because the neighbors complained

. He then brought back the original trailer, stat ing

that “no one said it ha [d] to be kept off” the property permanently. N.T. 90

- 91; R.R.

180

- 8 1

. Litman testified that he did not understand that he had to appeal the

violation notice in order to challenge its merits in the subsequent enforcement proceeding before the magisterial district judge

.

On November 2, 2020, the trial court denied Landowners’ appe al s and imposed a fine of “$10,000 plus $500 per day thereafter until the ‘accessory

structure ’ is removed

. ” Trial Court Order, 11/2/2020, at 1. Th ese order s gave Landowners 15 days to remove the “accessory structure.” Id.

On November 6, 2020, Landowne rs filed a motion for reconsideration

and an extension of time for removing the trailer

. O n November 17, 2020,

Landowners filed an amended motion for reconsideration . They explained that they had purchased a cover for the trailer and requested a stay of the trial court’s order s until the Zoning Board rule d on their application for a permit. Landowners also appealed the trial court’s order s of November 2, 2020. 4

T he trial court did not act on Landowners’ motion within 30 days of
November 2, 2020. On December 8, 2020, the trial court convened a conference

call on Landowners’ motions for reconsideration. In that conference, the trial c ourt explained that in an earlier conference o f November 24, 2020, th e court had agreed

to a new deadline for Landowners to remove the trailer should reconsideration b e granted

. See Valley Forge Center Associates v. Rib

- It/K.P., Inc. , 693 A.2d 242, 245

4 Commonwealth v. Litman (Pa. Cmwlth., Nos. 499 C.D. 2021 and 554 C.D. 2021 ).7

(Pa. Super. 1997) (trial court loses the power to act upon both the petition for reconsideration and the original order unless reconsideration is granted within 30 days). However, t he trial court was unable to rule on the reconsideration motion

within 30 days because of working remotely during the C OVID

- 19 pandemic.

Landowners ’ appeal deprived the court of jurisdiction to change the deadline for imposition of the fines.

During th e conference call, c ounsel for Landowners made an oral

motion for reconside ration of the requested stay nunc pro tunc . Hearing Transcript,
12/8/2020, at 5. Counsel for the Township had no objection. Accordingly, the t rial

c ourt granted Landowners’ motion and order ed Landowners to remove the trailer within 15 days

.

Landowners t hen appealed the trial court’s December 8, 2020, order s

. 5 Appeal

Before this Court
, Landowners raise three issues, which we have reordered for this opinion

. 6 First, they argue that the violation notice was invalid

because it did not include the information required by the Pennsylvania Municipalities Planning Code (MPC)

. 7 Second, the y argue that Zoning Officer

Gu c kin improperly initiated a criminal proceeding against them

. Third, they argue
that the t railer , licensed as a vehicle, is not an accessory structure because it is not
permanent

.

5 Commonwealth v. Litman (Pa. Cmwlth., Nos. 525 C.D. 2021 and 555 C.D. 2021 )

. 6 Our s tandard of review determines whether the trial court committed an abuse of discretion or an error of law. Lower Southampton Township v. Dixon , 756 A.2d 147, 150 n.7 (Pa. Cmwlth. 2000).

7 Act of July 31, 1968, P.L. 805, as amended , 53 P.S. §§ 10101

- 11202.8 Analysis We begin with a review of the provisions in the MPC that relate to the

enforcement of zoning ordinance s

. See Section 616.1 of the MPC, 53 P.S.
§ 10616.1. 8 Where a municipality alleges a zoning ordinance violation, it must send

a notice to the Landowner
, 53 P.S. §10616.1(a) , and t he violation notice must include the following items:

(1) The name of the owner of record and any other person against whom the municipality intends to take action.
(2) The location of the property in violation.
(3) The specific violation with a description of the requirements which have not been met
, citing in each instance the applicab le provisions of the ordinance

. (4) The date before which the steps for compliance must be commenced and the date before which the steps must be completed.
(5) That the recipient of the notice has the right to appeal to the zoning hearing board within a pr escribed period of time in accordance with procedures set forth in the ordinance.
(6) That failure to comply with the notice within the time specified, unless extended by appeal to the zoning hearing board, constitutes a violation, with possible sanctions clearly described.

53 P.S. §10616.1(c) (emphasis added) . These requirements are mandatory

. Township of Robinson v. Esposito , 210 A.3d 1146, 1149 ( Pa. Cmwlth. 2019).

Further, the violation notice becomes final and binding if not appealed.

This Court ha s held that o nce a landowner has been given notice of a zoning violation pursuant to Section 616.1 of the MPC, the asserted violations can be challenged only

8 Added by the Act of December 21, 1988, P.L. 1329.9

by appeal to the municipality’s zoning hearing board

. The landowner cannot challenge the merits of the zoning violation in its defense of the enforcement proceeding before the magisterial district ju dge

. City of Erie v. Freitus , 681 A.2d 840, 842 (Pa. Cmwlth. 1996). On the other hand
, “[a] municipality’s fa ilure to comply with Section 616.1 precludes it from seeking penalties under Section 617.2

of the MPC .” 9 Id

. 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.” Township of Lower Milford v.

Britt , 799 A.2d 965, 968 (Pa. Cmwlth. 2002).

With these principles in mind, we turn to the issue s raised in Landowners’ appeal

.

9 Added by the Act of December 21, 1988, P.L. 1329

. Section 617.2(a) states, in relevant part, as follows : Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of any zoning ordinance enacted under this act or prior enabling laws shall, upon being found liable therefor in a civil enforcement proceeding commenced by a municipali ty , pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by a municipality as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of the determination of a violatio n by the district justice

. . . . Each day that a violation continues shall constitute a separate violation, unless the district justice determining that there has been a violation further determines that there was a good faith basis for the person, partne rship or corporation violating the ordinance to have believed that there was no such violation, in which event there shall be deemed to have been only one such violation until the fifth day following the date of the determination of a violation by the dist rict justice and thereafter each day that a violation continues shall constitute a separate violation

. . . . 53 P.S. §10617.2(a) (emphasis added)

.10 Sufficiency of Violation Notice

In their first issue
, Landowners challenge the sufficiency of the Township’s violation notice . They c ontend that the enforcement notice did not

con form to Section 616.1 of the MPC and, thus, the Township was precluded from seeking penalties in an enforcement proceeding before the Magisterial District

Court . First, the notice did not state that it was the trailer, as opposed to one of

several sheds on Landowners’ property, that constituted the offensive “accessory structure.” Second, the notice did not state that a failure to file a zoning appeal would preclude them from defending against the merits of the zoning violation in the “legal

action” before a “ District [Judge]

. ” R.R. 224.

T he violation notice issued to Landowners stated that

an accessory struct u re has been constructed and/or placed on your property. A permit was not obtained for this project

. Construction of an accessory structure without a permit is a violation of []Section 153

- 204 of the Towamencin Township Zoning Code [

. ]

R.R. 224 (emphasis added)

. Landowners argue that this language did not comply

with Section 616.1 (c) of the MPC because it did not specify that “the requirements

which have not been me t ” concerned the trailer. 53 P.S. §10616.1(c)

.

The term “structure” is defined in the Zoning Ordinance as “[a]ny man

made object having an ascertainable stationary location on or in land or water,
whether or not affixed to the surface.” Z ONING O RDINANCE , §153

- 1301. In addition, the Zoning Ordinance has listed specific examples of accessory structures allowed

in residential districts:

(c) The following residential accessory structures shall be permitted in conjunction with single

- family detached and single

family semidetached dwellings only:11 [1] Buildings such as storage sheds, private greenhouses and gazebos.
[2] Detached garages for personal vehicles.
[3] Private swimming pools.
[4] Accessory structure detached from, but located on the same lot as the principal structure, the use of which is incidental and accessory to that of the principal structure.
[5] Sports courts.
[6] Any accessory structure permitted under this section shall comply with the setbacks established for accessory buildings in the district in which the accessory structure is to be located.

Z ONING O RDINANCE , §153

- 502(H)(8)(c) (citations omitted) (emphasis added)

. The term “building” is defined in the Zoning Ordinance as “[a]ny structure having

enclosed w alls and roof, intended for support or sheltering a use or occupancy, and

attached to the land. Included shall be all mobile homes and trailers used for human

habitation .” Z ONING O RDINANCE , §153

- 1301 (emphasis added). Although the

Ordinance does not def

ine “accessory,” it is commonly understood to mean a use incidental and subordinate to the principal structure. B LACK ’ S L AW D ICTIONARY 15 (8th ed. 2004) (“Something of secondary or subordinate importance.”). 10

In Township of Lower Milford , 799 A.2d 965, this Court considered whether a violation notice complied with Section 616.1 of the MPC . In that case, the violation notice used the term “industrial activity

, ” rather than the more precise

term “trash hauling

, ” to identify the conduct that violated the z oning o rdinance. The

10 Additionally, the Zoning Ordinance defines “building, accessory” as “[a] building located on the same lot as a principal building and incidental and subordinate to the principal building. Any portion of a principal building devoted or intended to be devoted to an accessory use is not an accessory building.” Z ONING O RDINANCE , §153

- 1301.12

more general term “industr ial activity” was the term used in the z oning o rdinance and broad enough to encompass “trash hauling.” Accordingly, we rejected the

l andowner’s challenge to the sufficiency of the enforcement notice. T his Court also

found it relevant that the l andowner knew that the notice referred to h er trash hauling business because she had previously sought a variance from the z oning o rdinance ’s

10

- acre lot size minimum for a trash hauling use

.

At issue in Herbert v. West Reading Borough Zoning Hearing Board (Pa. Cmwlth., No. 1113 C.D. 2020, filed October 14, 2021) (unreported)
, 11 was a
violation notice that identified the violations as “Parking Vehicle(s) in Rear Yard on

Grass

. ” Slip op. at 17. The l andowner appe aled the violation to the zoning hearing board challenging, inter alia , the specificity of the notice because “vehicle” was not defined in the zoning ordinance

. This Court agreed with the zoning b oard that a trailer was an instrument of conveyance that met the common understanding of the term “vehicle.” Notably, the l andowner in that case also understood that it was the trailer, used to transport lawn mowers, to which the notice referred.

Here, the trial court concluded that the violation notice satisfied the requirements of Section 616.1 of the MPC. The language “accessory structure” was broad enough to encompass the trailer, which was “man

- made” and had an “ascertainable stationary location. ” Z ONING O RDINANCE , §153

- 1301

. Accordingly,

t he trailer met the definition of “structure,” and “accessory” is a word commonly understood. Indeed, the Zoning Ordinance describes a residential “accessory

structure ” as a structure “ detached from, but located on the same lot as the principal

11 An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).13

structure, the use of which is incidental and accessory” to the principal structure.

Z ONING O RDINANCE , § 153

- 152(H)(8)(c)

.

T he trial court also found, as fact , that Landowners knew the “ accessory
structure” in question was the trailer . The trial court based th is finding on L itman ’s

testi mony that he leased the trailer after Landowners were denied a variance for an

addition to their house

. The trailer closely approximated th e location of the proposed

home addition because it was several feet from the house and connected to electricity

and water ; the deck, or ramp, was built to facilitate access to the trailer from the

house . Trial Court P A . R.A.P. 1925(a) Op

. at 10; R.R. 16. F inally , the tr ailer was used for the same purpose as the addition denied a variance
, i.e. , as a classroom for
Landowners’ son.

Litman testified that he was confused by the violation notice
, thinking

that it referred to a shed he was painting when he received the notice

. The trial court rejected this testimony as “ disingenuous and not credible.” Trial Court P A . R.A.P. 1925(a) Op. at 11; R.R. 17. T hat particular shed ha d been on his property for over 20 years

. Further, Litman acknowledged that “sheds [were] structures , ” for which

he “always had permits

. ” N.T. 73; R.R. 163. With respect to a p lastic shed on the
side of his house, Litman testified that the Township informed him that he did not need a permit for that type of shed . The same was true for his o utdoor cat house

. Both have been in his backyard for more than a decade

.

In short, t he only new structure that had been “constructed and/or placed ” on Landowners ’ property at the time of the issuance of the violation notice

was the trailer

. R.R. 224.

It also is not disputed that Landowners did not obtain a permit or inquire

about whether a permit would be needed for the trailer, as was the case for the14

various sheds located on the property . The trial court’s finding that Landowners

knew that the offen ding “accessory structure” was the trailer parked adjacent to their house is supported by the record. In any case, the term in the Zoning Ordinance
, i.e.
, “accessory structure,” was an appropriate way to describe “the requirements
which have not been met, citing in each instance the applicable provisions of the

ordinance

. ” Section 616.1(c) of the MPC, 53 P.S. §10616.1(c). See also Township of Lower Milford , 799 A.2d at 971. Here, the term accessory structure includes a building, the definition of which includes all trailers. Z ONING O RDINANCE , §153

- 1301.
In sum, the term “accessory structure” was sufficient to put Landowners on notice that they needed a perm i t for the ir trailer. Had they appealed to the Zoning
Board, they may have been successful in arguing that the trailer was a temporary

structure and, thus, no permit was required

. However, Landowners did not appeal to the Zoning Board.

Landowners also challenge the validity of the violation notice because

it did not state that a failure to appeal to the Z oning B oard would leave them unable to challenge the merits of the alleged zoning violation in a subsequent enforcement proceeding

. For this reason, L andowners contend the violation notice was defective.

Section 616.1 (c) of the MPC requires that the landowner be given

notice that he or she “has the right to appeal to the zoning hearing board within a prescribed period of time in accordance with proce dures set forth in the ordinance.”
53 P.S. §10616.1 (c)

. We have held that this does not mean that the municipality

must explain the “ consequences of failing to file such an appeal” or advise th e landowner that failure to appeal the violation notice resul ts in a binding

determination that the ordinance has been violated. Township of Penn v. Seymour
,15

708 A.2d 861, 864 (Pa. Cmwlth. 1998). Further “ a court may not graft additional provisions onto a statute which the General Assembly did not see fit to include.” Id

.

Here, the violation notice expressly informed Landowners that they had the right to appeal to the Township’s Zoning Board

. It also st ated that failure to correct the violation could result in penalties of $500 per day. It was not necessary

to specify that failure to appeal to the Zoning Board would ma k e the Township’s violation notice binding in any subsequent enforcement proceeding be fore the

District Ju dge

. Seymour , 708 A.2d at 864.

In sum, the Township’s August 9, 2019, violation notice complied with the requirements of Section 616.1 of the MPC for a valid notice of violation

.

Enforcement of Zoning Violation

In their second iss ue , Landowners argue that certain criminal procedural requirements were not properly followed. Specifically, they argue that due process requires that the criminal citation apprise them of “the statute or ordinance allegedly violated, together with a summary of the facts sufficient to advise [them] of the nature of the offense charged[.]” P A .R.C RIM .P . 403( A )(6). The Township responds that the Pennsylvania Rules of Criminal Procedure do not apply

to enforcement proceedings initiated under the MPC for a zoning ordinance

violation

. At one time, Section 616 of the MPC, formerly 53 P.S. §10616, provided that zoning ordinances were to be enforced through summary crimin al proceedings. However, this provision was repealed by the Act of December 21,
1988, P.L. 1329

. The effect of the repeal was to decriminalize zoning enforcement proceedings before a Magisterial District Court

. Seymour , 708 A.2d at 865.16 Section 153

- 211 of the Zoning Ordinance, which relate s to violations and penalties, provides, in relevant part as follows :

Any person, partnership, firm or corporation who or which has violated or permitted the violation of any provision of this chapter, or who fails to comply with any requirement, order or directive of the Zoning Officer, or of a permit or certificate issued under provision of this chapter, shall be subject to fines and penalties of not more than $500, plus all court costs, including reasonable attorney fees incurred by the municipality as a result thereof, which fines and penalties may be collected by suit or summary proceeding brought in the name of the Township of Towamencin, providing no judgment shall commence or be imposed, levied or payable until the date of the determination of a violation by the District [Judge] or other court of competent jurisdiction

. . . . Each day that a violation continues shall constitute a separate violation.

Z ONING O RDINANCE , §153

- 211 (emphasis added). Section 153

- 211 of the Zoning

Ordinance is consistent with Section 617.2(a) of the MPC, 12 which makes it clear

that a munic ipality’s enforcement proceeding is “civil” in nature. 53 P.S.
§10617.2(a). Neither the MPC nor the Zoning Ordinance provide s for imprisonment as a penalty for zoning code violations.

In Town of McCandless v. Bellisario , 709 A.2d 379 (Pa. 1998), our Supreme Court explained:

While the enforcement of municipal ordinances that provide for imprisonment upon conviction or failure to pay a fine or penalty must follow the Rules of Criminal Procedure, the same is not true for municipal ordinances that do not provide for imprisonment
upon conviction or failure to pay a fine or penalty, which, by

12 See supra note 9 for text of Section 617.2(a) of the MPC.17 definition, are not Penal Laws, and are therefore not included in the definition of “criminal proceedings.”

Id. at 381 (emphasis in original). Section 617.2 (a) of the MPC and Section 153

- 211 of the Zoning Ordinance authorize only civil penalties for a violation. See Lower Southampton Township , 756 A.2d at 151. Therefore, the Pennsylvania Rules of

Criminal Procedure do not apply to enforcement proceedings brought under Section

617.2 of the MPC and Section 153

- 211 of the Zoning Ordinance

. Id

. Thus, w e reject Landowners’ argument in this regard

.

Landowners also challenge the Township’s enforcement action because

it was brought in the name of the Commonwealth and not in the name of the Township. In response, t he Township explains that this classification of the citation filed with the Magisterial District Court as “criminal” was inadvertent and

immaterial . We agree

.

In Commonwealth v. Harchelroad , 623 A.2d 878 , 879 (Pa. Cmwlth. 1993), an enforcement proceeding was filed with the magisterial district judge by

the code enforcement officer and denominated a “criminal complaint

. ” We rejected

the l andowner’s challenge to the citation as fatally defective . T he case was “simply an appeal from a summary conviction for the violation of [the] illegal commercial use of property zoned R

- 2 single family Residential . . . no more, no less.” Id. at
881. Likewise, here, althoug h the c itation was filed as criminal
, Landowners

understood that the enforcement proceeding concerned a civil penalty, not the possibility of imprisonment

.

Because t he Rules of Criminal Procedure are inapplicable to proceedings under Section 617.2 of the MPC , t he trial court did not err in not applying those rules of procedure to Landowners’ summary appeals

.18 Accessory Structure

In their third issue
, Landowners argue that the trailer is not an accessory

structure that required a permit under Section 1 53

- 204 of the Zoning Ordinance.

Section 153

- 204 of the Township’s Zoning Ordinance states:

There shall be no change of use of land or a structure or portion thereof, and prior to the change, alteration, or extension of a nonconforming use or structure, or the construction, razing, moving, erection, structural change, alteration of, or addition to, any structure or portion thereof
, the grading or earth moving, and/or erection of any stationary sign unless and until a valid permit has been approved by, and acquired from, the Towamencin Township Zoning Officer or his designated representative in conformance with all the regulations a nd procedures herein specified. Failure to obtain a required permit shall constitute a violation of this chapter as herein provided.

Z ONING O RDINANCE , §153

- 204 (emphasis added). Landowners contend that their

trailer is a non

- stationary
, registered vehicle and allowed on their property without a permit

. They contend that connecting the trailer to water and electricity did not transform it into an accessory structure within the meaning of the Zoning Ordinance. They f urther argue that Section 153

- 204 of the Zoning Ordinance violates substantive due process under the Fourteenth Amendment to the United States

Constitution
, U.S. C ONST

. amend. XIV

. 13

13 The Fourteenth Amendment states, in part : “ nor shall any State deprive any person of life, liberty, or property, without due process of law[.]” U.S. C ONST

. amend. XIV, §1. “The substantive component of the Due Process Clause provides protection against government interference with certain fundamental rights and liberty interests.” Taylor v. Pennsylvania State Police , 132 A.3d 590, 608 (Pa. Cmw l th. 2016). “[F]or substantive due process rights to attach there must first be the deprivation of a[n] ... interest that is constitutionally protected.” Id . at 609 (quoting Khan v. State Board of Auctioneer Examiners , 842 A.2d 936, 9 46 (Pa. 2004) )

.19 As explained above, Landowners were able to contest the violation

“ only by way of appeal” to the Zoning Board

. Seymour , 708 A.2d at 864.
Landowners’ failure to appeal to the Zoning Board rendered the Township’s

violation notice immune from any attack , even on constitutional grounds

. We have

held that a chall enge to the “constitutionality and enforceability of the ordinance” is waived where the landowner has “failed to appeal the notice of violation to the [Zoning Board]. ” Id

.

N either the magisterial district ju dge nor the trial court may conduct a

de novo review of the question of whether Landowners violated the Zoning

Ordinance. Landowners’ challenge to the constitutionality and enforceability of

Section 153

- 204 of the Zoning Ordinance before this Court has been waived because they did not appeal the vio lation notice to the Zoning Board

. Conclusion The Township’s violation notice complied with Section 616.1 (c)(3) of the MPC because it described the “requirements which have not been met, citing in each instance the applicable provisions of the ordinance.” 53 P.S. §10616.1(c)(3).

The violation notice specified the right of appeal and the possibility of sanctions if

Landowners fail ed to comply with the notice. 53 P.S. §10616.1(c)(5), (6).

T he notice could have , and probably should have, stat ed that the trailer parked next to the house was an “accessory structure” that needed a permit

. P lain language is always preferred

. Landowners also ma k e a good point that a landowner should not have to pay a fee of $2,250 to appeal a violation notice that a landowner
believes was issued in error. However, the level of the Zoning Board fee is a political question to raise with the Township’s legislative body

.20 For the above

- explained reasons , we affirm the trial court’s order s dismissing Landowners ’ appeal s.

____________________________________________ MARY HANNAH LEAVITT, President Judge EmeritaIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania : CASES CONSOLIDATED

:
v. : Nos. 499 C.D. 2021

: 555 C.D. 2021 Donald Litman, :

Appellant :
Commonwealth of Pennsylvania :
:
v. : Nos. 525 C.D. 2021

: 554 C.D. 2021 Celia Litman, :

Appellant :

O R D E R

AND NOW, this 6th day of May , 2022, the orders of the Court of Common Pleas of Montgomery County, dated November 2, 2020, and December 8,
2020, are AFFIRMED.

____________________________________________ MARY HANNAH LEAVITT, President Judge Emerita