# Frye Construction, Inc. v. City of Monongahela

> Supreme Court of Pennsylvania · January 9, 1991 · 526 Pa. 170

URL: https://www.frixlaw.com/law-library/cases/9694503

## Case

- **Full name:** FRYE CONSTRUCTION, INC., Appellant, v. CITY OF MONONGAHELA, Robert A. Lohr, City Engineer of the City of Monongahela, Board of Appeals of the City of Monongahela and John A. Zentek and R. Carole Zentek, His Wife, Appellees
- **Court:** Supreme Court of Pennsylvania
- **Decided:** January 9, 1991
- **Citations:** 526 Pa. 170; 584 A.2d 946; 1991 Pa. LEXIS 5
- **Precedential status:** Published
- **Opinion:** Dissent by Zappala
- **Judges:** Nix, Larsen, Flaherty, McDermott, Zappala, Papadakos, Cappy
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9694503

## How later opinions describe it (automated extraction)

- finding rule requiring exhaustion did not apply when jurisdiction was not exclusive and zoning regulations did not provide injunctive power

## Opinion text

ZAPPALA, Justice,
dissenting.
Fully aware that there are circumstances where an individual may invoke equity to abate a nuisance, I believe the majority greatly overstates the historical availability of an *178 action in equity to challenge a use of property alleged to be in violation of a zoning ordinance.
In Burne v. Kearney, 424 Pa. 29, 31-32 , 225 A.2d 892, 893-94 (1967), we noted “the general rule that zoning ordinances provide adequate procedural remedies for testing their validity and application and that equity will not lie in such field.” We recognized, however, that courts had “permitted equity to lie in certain restricted and limited situations and, to that extent, have engrafted an exception on the general rule.” Id. (Emphasis added.) The majority, however, turns this general rule on its head, stating that
[wjhere 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,
at 948. Despite the absence of supporting citations for this “principle” (which is not surprising since the “principle” is manufactured out of whole cloth), the majority brazenly states that “[w]e have always so held and we continue to do so.” Id. Burne v. Kearney is expediently overruled, although even the casual observer will wonder why this would be necessary if “we have always held” the principle announced by the majority today.
Burne v. Kearney is instructive on the limits of the reach of equity: “as a prerequisite to the attachment of equity jurisdiction, the adjoining or neighboring property owner must aver — and later prove — that the alleged violation of the zoning ordinance has resulted in an injury not common to all the neighboring property owners but 'special and peculiar’ to his property.” Id., 424 Pa. at 32 , 225 A.2d at 894 . Further, “diminution in value of a property per se, does not equate the requisite 'special and peculiar’ injury to property.” Id., 424 Pa. at 33 n. 4, 225 A.2d at 894 n. 4. Nothing in our Leopardi decision, quoted so extensively by the majority, necessitates or even suggests a change in this longstanding rule. Indeed, our Leopardi opinion contained the qualification that enforcement by an aggrieved individu *179 al includes “in appropriate circumstances” an action in equity, citing, among others, Burne v. Kearney.
In this case, the complaint alleged only that “the Plaintiff has sustained irreparable damage in that the value of the Frye Property has been materially diminished and in that the Plaintiff has been prevented from successfully marketing said property____” Complaint, U 48. I find this insufficient as a matter of law to invoke the court’s equity jurisdiction sought to enforce the zoning ordinance. I would affirm the order of Commonwealth Court.
CAPPY, J., joins in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9694503. Public record. Not legal advice.