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HomeMy WebLinkAbout97-01916 " 0 "'" c., ~ "'< ~ \ ~ ~ .~ " 'I C} s.... '" 'lll "i-- :i: d () .E.. \ '-l,. ~, I;) , ~ p Cl ~ 0 ~ { '> ~ ~ . ~ Ct- . ~ to surface on Defendants' Premises and/or on the property , , , I , adjoining Defendants' Premises; and WHEREAS, as a result of the litigation made reference to above and efforts undertaken by Defendants to begin the process of remedying the septic system malfunction on their property, the I I 'I I , Borough and Defendants (the "parties") have reached an agreement with respect to said litigation; NOW THEREFORE, the parties, through their attorneys, hereby stipulate and agree as follows: 1. The preamble of this stipulation above is incorporated by reference herein. 2. Defendants agree and acknowledge that the septic system servicing Defendants' Premises does malfunction and is malfunctioning, causing the emission and/or discharge of untreated or partially treated sewage to the surface of the ground and into subsurface groundwater on or about Defendants' Premises. 3. Defendants agree and acknowledge that due to the condition of the septic system made reference to in Paragraph 2, above, that prompt action needs to be taken to remedy the malfunctioning of said system. 4. Defendants agree, at their sole cost and expense, to take all necessary actions and measures to connect to the sewer system of the Mount Holly Springs Borough Authority, obtain all necessary permits, pay all necessary fees and meet and comply with all rules, regulations and ordinances pertaining to said connection on or before September 22, 1997. 5. Defendants agree that on or before September 22, 1997 they will be utilizing the sewer system of the Mount Holly Springs Borough Authority for all sewage and waste water generated on, at or from Defendants' Premises and that use of the existing septic system shall by such date forever cease. 6. The Borough agrees that upon confirmation that Defendants are properly connected to the sewer system, are utilizing said system and that all use of the existing septic system has ceased, all on or before September 22, 1997, it will settle, discontinue and end the action docketed to No. 97-1916 Equity, at which time all claims of the Borough for relief, costs and fees raised in said action shall be considered released, waived and/or satisfied. 7. The parties agree that this Stipulation shall be approved by and become part of an Order of Court in the above LAW OFFICE:S SNELDAKER. BRENNEMAN a SPARE referenced equity action and enforceable as such against Defendants in the event they fail to abide by the terms and -3- , ~ I conditions of this stipulation. The Defendants further acknowledge that the Borough waives and relinquishes no claims or rights of any nature against them in the event Defendants fail to abide by the terms of this stipulation. SNELBAKER, BRENNEMAN & SPARE, P. C. ~ .y,~ItU- - Ke th O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Solicitors for the Borough of Mount Holly Springs DATE: I/~ I, 1"7 ?J RJfp(a Paul Bradford Orr, Esq. 78 W. Pomfret Street Carlisle, PA 17013 Attorneys for Defendants Raymond D. Fahnestock and Carol S. McKee DATE: 1 (36/ ql -4- n f,: t~r, {" ::_~f ! .,., "" r- f"- ..-j f '~.l :/" -I.-a ,- ",':' ......,.:1 ~:6 ;'--1} j:!j . -' () i_~r1J .-~~t _oJ """ ,.., ., "- :~ .1 "j' , , "J .. '. :.'1 "- ,'f ~).r ,.. ....;: , . n: '; '. '~,:'/\.T,( ~:., fl!l~ I r".. (', "'" .to ,'I"; ..... ,. '....'~". . rl: I' BOROUGH OF MOUNT HOLLY SPRINGS, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 97-1916 EQUITY CIVIL ACTION - EQUITY RAYMOND D. FAHNESTOCK and CAROL S. MCKEE, Defendants STIPULATION Keith O. Brenneman, Esquire, of Snelbaker, Brenneman & Spare, P. C., Solicitors for the Borough of Mount Holly springs, and Paul Bradford orr, Esquire, attorney for Raymond D. Fahnestock and Carol s. McKee, hereby enter into this stipulation with full authority and consent of their respective clients as follows: WHEREAS, Raymond D. Fahnestock and carol s. McKee ("Defendants") are the owners of a certain parcel of land improved with a residential dwelling known and numbered as 424 South Baltimore Avenue (rear), Borough of Mount Holly springs, cumberland County, pennsylvania ("Defendants' premises"); and WHEREAS, on April 11, 1997 the Borough of Mount Holly springs (the "Borough") initiated an action in equity against Defendants docketed to the above number seeking, inter~, to enjoin Defendants and all occupants of Defendants' Premises from utilizing Defendants' Premises and generating any sewage or waste LAW O"ICU SNtLDAlCtR. BRENNEMAN 8: SPARe product on, from or at Defendants' premises due to the malfunctioning of the septic system servicing Defendants' Premises which has caused untreated or partially treated sewage EXHIBIT A 4. Defendants agree, at their sole cost and expense, to take all necessary actions and measures to connect to the sewer system of the Mount Holly Springs Borough Authority, obtain all necessary permits, pay all necessary fees and meet and comply with all rules, regulations and ordinances pertaining to said connection on or before September 22, 1997. 5. Defendants agree that on or before September 22, 1997 they will be utilizing the sewer system of the Mount Holly Springs Borough Authority for all sewage and waste water 6. The Borough agrees that upon confirmation that generated on, at or from Defendants' Premises and that use of the existing septic system shall by such date forever cease. Defendants are properly connected to the sewer system, are utilizing said system and that all use of the existing septic system has ceased, all on or before September 22, 1997, it will settle, discontinue and end the action docketed to No. 97-1916 Equity, at which time all claims of the Borough for relief, costs and fees raised in said action shall be considered released, waived and/or satisfied. 7. The parties agree that this Stipulation shall be approved by and become part of an Order of Court in the above referenced equity action and enforceable as such against I f' I LAW O"ICes SNELDAKER. BRENNEMAN 8: SPARE Defendants in the event they fail to abide by the terms and -3- to surface on Defendants' Premises and/or on the property , adjoining Defendants' Premises; and WHEREAS, as a result of the litigation made reference to above and efforts undertaken by Defendants to begin the process of remedying the septic system malfunction on th~ir property, the Borough and Defendants (the "parties") have reached an agreement with respect to said litigation; NOW THEREFORE, the parties, through their attorneys, hereby stipulate and agree as follows: 1. The preamble of this Stipulation above is incorporated by reference herein. 2. Defendants agree and acknowledge that the septic system servicing Defendants' Premises does malfunction and is malfunctioning, causing the emission and/or discharge of untreated or partially treated sewage to the surface of the ground and into subsurface groundwater on or about Defendants' Premises. 3. Defendants agree and acknowledge that due to the condition of the septic system made reference to in Paragraph 2, above, that prompt action needs to be taken to remedy the malfunctioning of said system. ..... conditions of this stipulation. The Defendants further acknowledge that the Borough waives and relinquishes no claims or rights of any nature against them in the event Defendants fail to abide by the terms of this Stipulation. SNELBAKER, BRENNEMAN & SPAR~, P. C. By: ,/1] ~ Ke~renneman, Esq. 44 West Main street Mechanicsburg, PA 17055 (717) 697-8528 Solicitors for the Borough of Mount Holly Springs DATE: I/~ I, 1"7 ?J ~(a Paul Bradford orr, Esq. 78 W. Pomfret Street Carlisle, PA 17013 Attorneys for Defendants Raymond D. Fahnestock and Carol S. McKee DATE: 1 (16/ ql LAW OP'P1CEI SNELDAKER. BRENNEMAN 8c SPARE -4- " ,~ : ...,~ '-1.' i',,:.,~ .,tt. -J'<~ c,':::; .,,' 'n ~ C. _J ~ - .. ,- I.,.. ,'- ::! ..j .;1 '1 I ,-. ~.. r-l - .r) '~ S :...-, -;( ..:J h- ).., ':-! - ~ (.) i.:YlI :n '-1 , ~.. - . loJ ~'J -- ~ ~ ! ~ l~ . '" ~.:. ~ BOROUGH OF MOUNT HOLL Y SPRINGS, Plaintiff : IN TIlE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 97-1916 Equity RAYMOND D. FAHNESTOCK and CAROL S. MCKEE, : CIVIL ACTION - EQUITY Defendants DEFENDANTS ANSWm TO PLAINTIFF'S COMPLAINT COMES NOW, Defendants, Raymond D. Fahnestock and Carol S. McKee, by and through thcir counsel, Paul Bradford Orr, Esquire and respectfully files this Answer Plaintiffs Complaint as follows: 1. Admitted. 2. Admitted in parl. Denied in parl. It is admitted that the defendants named in this complaint arc Raymond D. Fahnestock and Carol S. McKee, adult individuals residing at 424 South Baltimore Avenue (rear), Borough of Mount Holly Springs, Cumberland County, PA. By way offUrlher answer, defendants are still investigating whether additional co-defendants, unnamed to date, should be joined to this aetion. 3. Admitted. 4. Admitted. By way of fUrlhcr answer, proper building pennits where obtained from the Borough of Mount Holly Springs at the time construction was initiated by the defendants. 5. Denied. To the contrary, the old foundation was removed and a basement was constructed whereby the new residential dwelling was placed above said newly constructed basement. 6. Admitted. 7. Denied. To the contrary, defendants have conducted numerous "dye" tests which have ! J ; I ~. proved inconclusive. 8. Denied. After reasonable investigation, I am without knowledge or information sufficient to form a belief as to the truth of this averment and prooF is thereFore demanded. 9. Denied. After reasonable investigation, I am without knowledge or information sufficient to form a belieF as to the truth of this averment and prooF is therefore demanded. 10. Denied. After reasonable investigation. I am without knowledge or inFormation sufficient to Form a belieF as to the truth of this averment and prooF is thereFore demanded. By way of additional answer to this averment, defendants have retained an expert so that their own independent testing of their individual on lot septic system can be conducted. However, to date, May 9, 1997, such inspection has not yet been performed. II. Denied. After reasonable investigation, I am without knowledge or inFormation sufficient to form a belieF as to the truth of this averment and proof is thereFore demanded. By way i' t of further answer, the DeFendants have had several tests, including but not limited to "dye testing" which have yet to prove that there is a leakage onto any adjacent properties. 12. Paragraphs 1-11 above are incorporated herein by reFerence. 13. Admilled. 14. Admilled. By way of further answer, defendants were not aware that they needed to obtain a sewage permit to connect to an existing system. Additionally, numerous borough official were well aware that new residential construction was being perFormed by the defendants as they had applied and received an approved building pennit. 15. Denied. After reasonable investigation, I am without knowledge or information sufficient to Form a belief as to the truth of this averment and prooF is thereFore demanded. VERIFICATION I verify that the statements made in the foregoing Answer are true and correct. I understand that false statements herein are made subject to the penalties of Pa. C,S. ~ 4904, relating to unsworn falsification to authorities. DATE: ~r.!P7 ;;- ----r~ /~/' 2:' .//;.,/</ ./:'~y ,--,Raymond D. Fahnestock DATE: r. - /7_ - <'; 1 (lL<j-( J/I'\.({~CL Carol S. McKee BOROUGH OF MOUNT HOLLY SPRINGS, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 97-1916 Equity RA YMOND D. FAHNESTOCK and CAROL S. MCKEE, : CIVIL ACTION - EQUITY Defendants CERTIFICATE OF SERVICE I hereby certify that on this date, May 12, 1997, I mailed a true copy of Defendants Answer to Plaintiffs Complaint to the following person at the following address by U.S. Mail, delivered to addressee only: Keith O. Brenneman, Esquire 44 West Main Street M~h'''''''''''g. PA 170"~ ~ ~ Paul Bradford rr, Esquire < .-C""-'-:"F.:'~~,*:~fi>> BOROUGH OF MOUNT HOLLY SPRINGS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 97-1916 EQUITY RAYMOND D. FAHNESTOCK and CAROL S. MCKEE, Defendants CIVIL ACTION - EQUITY ACCEPTANCE OF SERVICE I accept service of the Complaint in the above matter on behalf of Defendants Raymond D. Fahnestock and Carol S. McKee and ?~, Paul B. orr, Esquire 78 W. Pomfret street carlisle, PA 17013 certify that I am authorized to do Date: LAW OI"r1CE8 SNELDAKER. BRENNEMAN a: SPARE r.~.".." . ":'~ ~~-~ '';-~ :'-'''''''''''-'---. ~,-:"t~~ ".,".'- ..-._~._.---- II ~.. r ....a 0 c-: -' .'"1 - .' 'J '- """,::1 <": :TI ;.~. "J -r;; iCl '.' ... 'A t. , .- ., .:3] '??, IV 'jlTl ;'-> ':oj "'J I:;:) =< - _. '~,.-.___- ...'4....... 'f) ,f) 0 ~ <.:D <( ., z " z ~ t <( <( < :S > .. ~ ..J - ~, ~ r ..: ;: >- ~ v'l ^ u.J 'J <( Z Z 0 'l. Z v'l " Z -, r UJ < UJ ;; c.. u.J 0 Z ~ t<: , oc j 0 a:l ^ 0 " oc 0- S ~ ::l ~ to . <( v'l - ~ < z ..; J: U UJ ::; BOROUGH OF MOUNT HOLLY SPRINGS, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 97- /t)/u. C~i( '11:r CIVIL ACTION - EQUITY RAYMOND D. FAHNESTOCK and CAROL S. MCKEE, Defendants NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with a court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, CO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator One Courthouse square Carlisle, Pennsylvania 17013-3387 (717) 240-6285 SNELBAKER, BRENNEMAN & SPARE, P. C. By: ~~~ Solicitors for Plaintiff LAW O'f'ICr.S SNELDAKER. BRENNEMAN a SPAR!: BOROUGH OF MOUNT HOLLY SPRINGS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 97- 19/t,. ~ ;;..u<~ CIVIL ACTION - EQUITY RAYMOND D. FAHNESTOCK and CAROL S. MCKEE, Defendants COMPLAINT The Borough of Mount Holly Springs, by its attorneys, snelbaker, Brenneman & Spare, P. C. files this Complaint and in support thereof avers as follows: 1. Plaintiff is the Borough of Mount Holly Springs, a duly authorized and existing political subdivision and local agency with a place of business and office address of 200 Harman Street, Borough of Mount Holly Springs, Cumberland County, Pennsylvania. 2. Defendants are Raymond D. Fahnestock and Carol S. McKee, adult individuals residing at 424 South Baltimore Avenue (rear), Borough of Mount Holly Springs, Cumberland County, Pennsylvania. 3. Defendants are the owners of a certain parcel of real estate improved with a residential dwelling commonly known as 424 South Baltimore Avenue (rear) (hereinafter referred to as LAW O""cr.:s SNELDAKER. BRENNEMAN a SPARE "Defendants' Premises") having obtained said premises by deed dated october 20, 1989 and recorded December 14, 1989 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Deed Book "H", Volume 34, Page 1155. c. Ordering and directing Defendants to immediately repair, replace and/or relocate the existing individual sewage system; Ordering and directing Defendants, in the alternative to c., above, to connect, at Defendants' expense, to the public sewer system operated and maintained by the Mount Holly springs Borough Authority in accordance with all existing requirements for such connection; E. Ordering and directing Defendants to obtain all required permits and to follow all applicable, laws, rules and regulations for the operation of the existing individual sewage system as well as those required by reason of any remedial action directed by this court; D. F. Granting such other and further relief which this court, in the exercise of its discretion, may require or deem just and proper; and G. Awarding costs, fees and expenses to Plaintiff in the bringing and prosecution of this action. COUNT Ii public Nuisance - common Law 17. The averments of Paragraphs 1 through 16, inclusive, of this Complaint are incorporated by reference herein. 18. Defendants' discharge of untreated or partially treated sewage to the surface of the ground, into the groundwater and/or towards the stream behind Defendants' Premises is and threatens to be injurious to the health and welfare of the community and general public. 19. Defendants' discharge of untreated or partially LAW O"ICU SNELDAKER. BRENNeMAN 8: SPARe treated sewage to the surface of the ground, into the groundwater -5- I , I I 1. I ~ and/or towards the stream behind Defendants' Premises constitutes an unreasonable interference with the rights common to the general public in having and/or enjoying clean, non-hazardous air, land and water. 20. Defendants' discharge of untreated or partially treated sewage to the surface of the ground, into the groundwater and/or towards the stream behind Defendants' Premises constitutes a public health hazard and has or will cause irreparable and permanent harm to the general public. WHEREFORE, Plaintiff requests this Court to issue an Order: A. Issuing an injunction enjoining Defendants and all other occupants of Defendants' Premises, together with all other persons, from residing in Defendants' Premises and/or generating any sewage or waste product on or at Defendants' premises; B. Ordering and directing Defendants to immediately abate and remedy the nuisance complained of herein; C. Ordering and directing Defendants to immediately repair, replace and/or relocate the existing individual sewage system; D. Ordering and directing Defendants, in the alternative to C., above, to connect, at Defendants' expense, to the public sewer system operated and maintained by the Mount Holly springs Borough Authority in accordance with all existing requirements for such connection; E. Ordering and directing Defendants to obtain all required permits and to follow all applicable laws, rules and regulations for the operation of the existing individual sewage system as well as those required by reason of any remedial action directed by this court; LAW O"ICES SNELDAKER. BRENNEMAN 8: SPARE -6- ! I ! , ' , I ;1 F. Granting such other and further relief which this Court, in the exercise of its discretion, may require or deem just and proper; and G. Awarding costs, fees and expenses to Plaintiff in the bringing and prosecution of this action. SNELBAKER, BRENNEMAN & SPARE, P. c. By: ~~ Date: April 9, 1997 Ke~th O. Brenneman, Esqu re Supreme ct. ID #47077 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Solicitors for the Borough of Mount Holly springs LAW on'lCU SNELDAKER. BRENNEMAN 8: SPARe -7- i L I ,.. .('