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Home My WebLink About97-02720 L I I i / /. ,. I L , J1 v' r- ~ ~ ., '; '"":.',' .,'(', -.'~ . ':; ..'.. j' ~""'. t , ' 'e, ," ," . ':'~.. .':" " ,.-.....', .. . A. :t,. ',oJ! ..,: '<-., ., ,....."'....:. . -'~ .' \ .,. .: '. ., " . ;.1-:~'~-I ., ~:,:.. .;;\ ,. .. .. '1."- r:'" .:~.,. ' , '.. '. '. ": " . .,', .', .' , ";..." H"! ;'::.' .~>. .... .- ',"', ,. ,. ~,. , l'~':' :;. .:t"'r".' ; - '<~:"." .- .,... ~ I: .,' ..: <.."r", :.".1;' .', "" . .':~' " . .,' i;" , '-.f +.'. ~~~:} .' . " :j' LY:;"-'; " '1.-' t-",_ r:-- '- ': ~.' ~ . ' , ~~ '~~.~'\':~~:, :~ .~ :':: .' . -;1+"'- . .., , ',-'.' :,:,,-~:-~'.~-:~ ,;;' .:}. . . ....,~ '~" ,'... "~'.' , . ' ';:" -:."i, .::J. ~ 1- i " ',\ " , ";':~";~'\' :,,~'.. 7 ',; .. '~-.r, -,' :...i; .. \ .~ ':.' ,.. ..:,.. I',. ',,' ~. ~-, . . f -,::'~:: .'\r,~":~~. , _ ~' ,;;.:':' .'.-; '. . . .... ~ ~~;~~ c ~~ i. .... ". -;f':r '~'. "'-' ";'.r,,~ .' ,.r . ~ . .~. . , '.~ .~. . \.-, "':i.:, ',. .~ ~ >- , .' \ ':. ~'> '7" '....A.. .;,.. .;~...;.~ ~ .;...:~~- ~,' ~ ..,......." m~.. '~~.'- .:~...J.\ _ BOROUGH OF NEW CUMBERLAND, Plaintiff IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . . v. 97 - 2720 LINDEN R. GATES, JR., LOIS J. GATES, LINDA J. KAUFFMAN, LINDEN R. GATES, IV, JEFFREY O. GATES, LOWELL R. GATES, MICHELLE L. SCHENK, individually, and trading and doing business as J.M. FIVELL COMPANY, and MOUNTBATTEN SURETY COMPANY, INC., Defendants CIVIL ACTION - IN EQUITY . . : . . BRIEP IN OPPOSITION TO DEFENDANTS' PRELIMINARY OBJECTIONS The Borough of New Cumberland, by and through Andrew C. Sheely, Esquire, hereby files this brief in opposition to the Defendants' Preliminary Objections pursuant to Cumberland County Rule of Court 210-6 and respectfully states as follows. I. STATEMENT OF FACTS A. Procedural Historv On May 21, 1997, Plaintiff, the Borough of New Cumberland, filed an action in Equity against Linden R. Gates, Jr., Lois J. Gates, Linda J. Kauffman, Linden R. Gates, IV, Jeffrey O. Gates, Lowell R. Gates, Michelle L. Schenk, individually, and trading and doing business as J.M. Fivell Company. In addition, the complaint named Mountbatten Surety Company, Inc., as a Defendant. The equitable action contains six (6) counts and various demands for relief. On or about June 13, 1997, the individual Defendants and J.M. Fivell Company filed preliminary objections to the com- plaint. On or about July 8, 1997, Defendant Mountbatten Surety Company, Inc., filed preliminary objections to the Complaint. The matters were listed for argument court and are now ready for disposition. B. Substantive Historv On or about July 6, 1994, the Borough of New Cumberland approved a preliminary/final subdivision plan known as "Gates Manor" which was prepared and presented for approval by the individual Defendants and J.M. Fivell company.1 The Gates Manor plan consists of twenty-one (21) lots in a exclusive residential zoning district within the Borough of New Cumberland.2 The land which comprises the subdivision was formerly owned by the West Shore School District and was formerly used a school.3 As a condition to plan approval, Plaintiff and individual Defendants and J.M. Fivell Company executed a Development Agree- ment on or about June 6, 1994 wherein the individual Defendants and J.M. Fivell Company agreed to install certain public improve- ments and complete the Gates Manor Development in accordance with Plaintiff's complaint, paragraph 12. 2 Plaintiff's complaint paragraph 14. 3 Plaintiff's complaint paragraph 11. 2 certain standards and periods of time.4 Simultaneously with the execution of the Development Agreement, the Borough of New Cumberland was presented with appropriate financial security by the individual Defendants and J.M. Fivell Company in the nature of a bond from Defendant Mountbatten Surety Company, Inc. to guarantee completion of the public improvements.5 Both the Development Agreement and the preliminary/final subdivision plan were recorded at the office of the Recorder of Deeds of Cumber- land County. Due to the individual Defendants and J.M. Fivell Company's failure to complete certain improvements in Gates Manor in accordance with the Development Agreement, an extension to the Development Agreement was executed by the parties on or about September 6, 1995.6 Due to completion of some public improve- ments, the Borough of New Cumberland was presented with a revised sum of financial security in the nature of a bond from the individual defendants, J.M. Fivell Co. and Defendant Mountbatten Surety Company, Inc. to guarantee completion of the public 4 Plaintiff's complaint, paragraph 15. A copy of the devel- opment agreement is attached hereto as Exhibit "A". 5 Plaintiff's complaint paragraph 16. A copy of the bond to guarantee completion of the improvements is attached hereto as Exhibit "B". 6 Plaintiff's complaint, paragraph 17. A copy of the Exten- sion of the Development Agreement is attached to the Complaint as Exhibit "C". 3 improvements. 7 A copy of the revised and ex~ension to the finan- cial security is attached hereto as Exhibit "D". Due to little if any movement towards completion of the Gates Manor development during a two (2) year period and the existence of substantial dangers on the property, Plaintiff, by certified letter, notified Defendant Mountbatten Surety Company, Inc. of the breaches of the Development Agreement and demanded the sum of $25,000.00 in order to complete the improvements pursuant to the bond guarantees.8 When no action resulted from this demand, the instant action was filed. The complaint in Equity contains six (6) counts, four (4) counts against the individual defendants and J.M. Fivell, Co. and two (2) counts against Defendant Mountbatten Surety Company, Inc. Count I involves breach of the development agreement. Count II involves the breach of the preliminary/final subdivision plan requirements. Count III involves allegations of municipal or- dinance violations. Count IV involves allegations of continual public nuisances and dangers to the adjacent community. Counts V and VI target Mountbatten Surety Company Inc. for breach of the performance bond and unfair trade practices, respectfully. The preliminary objections of all Defendants are suitably 7 Plaintiff's complaint, paragraph 18. A copy of the revis- ed and extension to the financial security is attached to the complaint as Exhibit "D". 8 Plaintiff's complaint, paragraphs 55 - 57. 4 described as a scattershot defense with sole purpose to further delay resolution of these matters. First, they claim the failure to attach their preliminary/final subdivision plan to the com- plaint violates the Rules of Court. Second, they claim that reference to the non-completion of driveways is impertinent and should be stricken. The third objection is in the nature of a demurrer and objects to Plaintiff's request for counsel fees in Counts I through IV. The fourth objection also is in the nature of a demurrer and objects to the request for injunctive relief in Counts I through IV. The fifth objection claims insufficient specificity in the pleading as to Count I for not alleging incom- plete public improvements. The sixth objection claims insufficient specificity as to Count II arguing violations for not stating how the public improvements deviated from the plans, profiles and cross-sections to the Complaint. The seventh preliminary objection argues viola- tions of the Rules of Court for not attaching copies of the plans, profiles and cross-sections to the Complaint. The eighth objection, in the nature of a demurrer, challenges the relief sought by Plaintiff which requests a per diem fines. The ninth preliminary objection claims that Count III is insufficient for not specifying certain defects on individual lots. The tenth objection challenges Count IV which alleges sufficient facts demonstrating the existence of a substantial nuisance and danger 5 III. DISCUSSION A. Authoritv for Eauitable Actions Prior to addressing each of the Defendants' preliminary objections, it is first necessary to provide this Honorable Court with a brief summary of the general principles of law at issue in this matter. The issues raised by Defendants in this case are not unique and this Court has previously heard and disposed of similar objections in the past. First, a municipality is clearly authorized to bring a suit in equity to enjoin violations of any condition attached to a subdivision approval. 53 P.S. ~10515.1. Dov1estown Townshio v. Tee1ina, 160 Pa. Commonwealth ct. 397, 635 A.2d 657 (1993); ~ denied, 539 Pa. 697, 663 A.2d 1234. Second, there are two (2) sources of authority derived from the Pennsylvania Municipalities Planning Code which support the causes of action in this matter, namely 53 P.S. ~10511, entitled "Remedies to effect completion of improvements", and 53 P.S. 10515.1, entitled "preventive Remedies." These two sections state as follows: 53 P.S. 10511. Remedies to effect completion of improvements. In the event any improvements which may be required have not been installed as provided in the subdivision and land development ordinanoe or in accord with the approved final plat the governing body or the municipality is hereby granted the power to enforce any corporate bond, or other security by appropriate legal and equitable remedies. . . 8 53 P.S. 10515.1 Preventive remedies. (a) In addition to other remedies, the munioipality may institute and maintained appropriate aotions by law or in equity to restrain, oorreot or abate violations, to prevent unlawru1 oonstruotion, to reoover damages and to prevent illegal oooupanoy or a building, struoture or premise8. . . (b) A munioipality may reruse to issue any permit or grant any approval neoessary to rurther improve or develop any real property whioh has been developed or whioh has re8ulted rrom a subdivision or real property in violation or any ordinance adopted pursuant to this artiole. . . . Third, it is fundamental law that any court in equity has jurisdiction to direct the specific performance of an agreement. 14 Standard Pa. Practice 2d. ~79.59. Equitable jurisdiction exists where a plaintiff has no adequate remedy at law, where equitable relief is necessary to prevent irreparable harm and to prevent mUltiplicity of actions. See 14 Standard Pa. Practice 2d. ~79.42. Lastly, it is well stated law that a municipality is not required to exhaust statutory remedies prior to seeking to enjoin violations of municipal ordinances. Bradlev v. South Londonderrv Two., 64 Pa. Commonwealth ct. 395, 440 A.2d 665 (1982). B. ResDonse to Defendants' Dreliminarv obiections. The first issue raised by Defendants concerns whether the complaint should be dismissed for failure to attach the prelimi- nary/final subdivision plan to the complaint. In response to this 9 objection, paragraph 13 of the complaint clearly alleges that the Gates Manor subdivision plan was publicly recorded in the Recor- der of Deeds Office of Cumberland County. As an official docu- ment, Pa. R. C.P. 1019(dl recognizes that proper pleading only requires that it be identified by reference. Further, Pa. R.C.P. No. 1019 (g) recognizes that documents recorded in the Office of the Recorder of Deeds may be incorporated by reference in a pleading. In addition, numerous paragraphs throughout the complaint refer to the Defendants' breach of the Development Agreement. The Development Agreements are attached to the Complaint as Exhibits "A" and "c" and specifically refers to plans and specifications submitted by Defendants and approved by the Borough of New Cum- berland. As such, it could be deemed inappropriate to attach the subdivision plan to a pleading which constitute evidentiary matters to support the underlying claim. See Goodrich Am 2d, ~1019(h) (7). Such issues are normally addressed in discovery. Accordingly, Defendants' first preliminary objection should be dismissed and Defendants should be directed to file an answer to the Complaint. The second issue briefed by Defendants argues that averments of non-compliance with conditions of the Development Agreement and publicly recorded subdivision plan somehow constitute impert- inent manner requiring that the allegations be stricken from the 10 complaint. In response to this argument, such allegations are completely appropriate and necessary for this Honorable Court to assume equitable jurisdiction in this matter. It is well establi- shed law that a multitude of ordinance violations of continuing nature requiring a succession of legal actions trigger equitable relief. Lutweiler v. Northchester CorD., 456 Pa. 530, 319 A.2d S99 (1974); Borouqh of Kennett Square v. Lal 165 Pa. Commonwealth ct. 573, 645 A.2d 474 (1994).9 Paragraphs 21 and 40 of the Complaint allege violations of the zoning ordinance in reference to completion of driveways. Paragraphs 23 and 43 allege numerous weed ordinance violations. Paragraph 42 alleges violations of refuse and waste ordinances. Certainly, the necessity for enforcement of several ordinances through multiple actions triggers the necessity for equitable jurisdiction and relief in this matter. A motion to strike impertinent matter should be used spar- ingly and exercised only when prejudice can be shown by the moving party. Commonwealth, DeD't of Envtl. Resources v. Hartford Accident and Indemnification Co., 40 Pa. Commw. 133, 138, 396 A.2d 885, 888 (1980). Accordingly, in light of the many ord- inance violations alleged to have been made in the complaint, it is respectfully suggested that Defendants' preliminary objections 9 A court is authorized to take judicial notice of municipa- lities. 42 Pa.C.S.A. ~6107. 11 be dismissed and that Defendants be directed to answer the com- plaint. The third objection briefed by Defendants is in the nature of a demurrer and challenges Plaintiff's request for attorney fees in the "Wherefore" clause of each count. A demurrer asserts that a pleading fails to set forth a cause of action upon which relief can be granted. Balsbauah v. Balsbauah, 447 Pa. 423, 290 A.2d 85 (1972). In addition, Preliminary objections in the nature of demurrer admit as true all well pleaded fac- tual averments and all inferences fairly deducible therefrom....It is in this light that the complaint must be examined to deter- mine whether it sets forth a cause of action which, if proved by the plaintiff, would entitle him to the relief he seeks.... Cunninaham v. Prudential Prooertv & Casualty Insurance Co., 340 , Pa. Super. 130, 133, 489 A.2d 875, 877 (1985); 5 standard Pen- nsvlvania Practice 2d, ~25.67-25.77. In responding to this objection, it should be noted that a Court of Equity has broad power and has clear authority to award consequential damages in shaping and rendering a decree. ~ Rusicki v. pribonic 511 Pa. 383, 515 A.2d 1022 (1986). As set forth above, 53 P.S. 10515.1, entitled "Preventive Remedies, clearly authorizes the authority of a municipality to pursue equitable remedies and request appropriate damages. Paragraph 26 of the complaint alleges that the Borough of New Cumberland has been forced to incur substantial engineer 12 fees, staff review fees and attorney fees in pursuit of complian- ce with the Development Agreement. As such, assuming the allega- tions are true, the equitable powers of this Court and the Munic- ipalities Planning Code both allow for the imposition of conse- quential damages and other damages in this circumstance as deemed appropriate. Accordingly, it is respectfully suggested that Defendants' preliminary objections be dismissed and Defendants be directed to Answer the complaint. The fourth objection briefed by Defendants is in the nature of a motion to strike and argues that claims for injunctive relief should be stricken. To the contrary, there is a wealth of case law which authorizes the remedies of specific performance and injunctive relief in these circumstances for breach of an agreement. See Standard Pa. Practice 2d ~ 79.58 Likewise, ~10515.1 of the Municipalities Planning Code clearly authorizes injunctive relief. As such, various authorities support an equi- table action for both specific performance and injunctive relief and Defendants' preliminary objections should be dismissed. The fifth objection briefed by Defendants is in the nature of a motion for a more specific pleading as to Count I which seeks to enforce the development agreement. When reviewing this type of motion, the key issue is whether ?laintiff's complaint set forth enough specific facts to enable Defendants to frame a proper answer and defense. Philadelphia Countv Intermediate Unit 13 No. 26 v. Commonwealth of PennsYlvania DeDartment of Education, 60 Pa. Commonwealth ct. 546, 522, 432 A.2d 1121, 1125 (1981); ~ ~ citv of PhiladelDhia v. ShaDD, 44 Pa. Commonwealth ct. 303, 403 A.2d 1043 (1979); 5 Standard Fa. Practice, ~25.52 - 25.58. In this case, the complaint succinctly alleges that the agreed upon public improvements have not been completed. Speci- fically, paragraph 19 states as follows: 19. Since approval of the Preliminary/Final Subdivision Plan in June of 1994, Defendants have demonstrated a con- tinual refusal to comply with the Development Agreement in that: a. Defendants have failed to complete the development within the times specified in the Development Agreement and extensions thereto; and b. Defendants have failed to complete and install public improvements specified in the Development Agreement, including items such as curbing, sidewalk, and a wearing course for a proposed public street; and c. Defendants have failed to complete and install items specified in the Development Agreement, including such required public improvements such as curb ramps, street lights and fire hydrants; and d. Defendants have failed to comply with the notes and conditions of approval set forth on the plan. Notably, paragraph 28 in Count I of the Complaint incor- porates the previous paragraphs, including paragraph 19. These allegations contain sufficient facts to enable the Defendants to frame and answer of defense. These allegations simply and clearly state that the public improvements have not been installed or completed. A response can be easily drafted to these averments of 14 fact. Accordingly, Defendants' preliminary objections should be dismissed and Defendants should be directed to file an answer to the Complaint. The sixth objection briefed by Defendants is again in the nature of a motion for a more specific pleading as to Count II which seeks to enforce the development agreement and the prelimi- nary/final subdivision plan. Noting that paragraph 33 incor- porates the prior allegations of fact demonstrating substantial violations of the development agreement and preliminary/final subdivision plan, review of paragraph 36 of Count II clearly alleges that Defendants have not completed such items as curbing, sidewalk, streets and other improvements as required by the development agreement and preliminary/final subdivision plan. Accordingly, in light of these specific allegations, the prelimi- nary objections should be denied and Defendants should be direct- ed to file an answer to the Complaint. The seventh objection briefed by Defendants challenges the identical issue raised in their first objection. Accordingly, Plaintiff hereby incorporates its response to the first issue set forth above and respectfully suggests that this Honorable Court dismiss the preliminary objections of Defendants and direct Defendants to answer the Complaint. The eighth objection raised by Defendants again is in the nature of a demurrer and seeks to challenge the relief sought by 15 Count II. Again, a Court in equity has substantial power to fashion appropriate relief. While it is acknowledged that this is not an action commenced in accordance with 53 P.S. 10515.2 and 10515.3 which specifically warrant per diem fines, there is no prohibition against this Court entering such fines as a form of equitable relief within its broad scope of equitable remedies. Furthermore, it is well stated law that a court of equity may properly resolve both legal and equitable remedies to avoid piecemeal litigation. sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). Accordingly, it is respectfully suggested that Defendants' preliminary objections be dismissed and that Defendants be di- rected to Answer the Complaint. In the alternative, should this court determine that per diem fines are not warranted as this stage in action, it is respectfully suggested that reference to such claims be stricken from the "Wherefore clause" and that the remaining relief be Ordered by the Court. The ninth objection briefed by Defendants is in the nature of a motion for a more specific pleading as to Count III. Count III of Plaintiff's Complaint clearly sets forth several para- graphs which identify numerous prior ordinance violations which establish a history of recurring problems. Defendants can frame a proper answer and defense to the paragraphs set forth in Count III. Most importantly, objective review of this count alleges 16 repeated ordinance violations to which Defendants can simply admit or deny. Accordingly, it is respectfully suggested that the prelimi- nary objections of Defendants be dismissed and that Defendants be directed to Answer the Complaint. The tenth objection briefed by Defendants is in the nature of a demurrer as to Count IV, which seeks prevent and prohibit a continuing nuisance. This Count pleads various facts which can be summarized as pleading dangerous conditions serving and as attractive nuisances to children within a exclusive residential development. Similar conditions have been declared to constitute nuisances in fact where conditions on a property create a danger to the community by serving as a breeding area for rodents and danger to unsuspecting children who may decide to play on the piles of stone, dirt and debris which were located on the pro- perty. Commonwealth v. Sadeckv, 41 Pa.Commonwealth ct. 86, S9 - 90, 398 A.2d 1073, 1075 (1979). Accordingly, in light of the allegations of paragraphs 45 - 51 which are deemed to be true for purposes of a demurrer, it is respectfully suggested that the preliminary objections of Defen- dant be dismissed and that they be required to file an answer to the Complaint. The eleventh (11th) objection briefed by Defendants is in the nature of a motion to dismiss for lack of subject matter 17 jurisdiction as to Counts V and VI of the complaint. In Count V, it is clearly alleged that Defendant Mountbatten Surety Company Inc. guaranteed the completion of the public improvements for Gates Manor. In addition, it is alleged that Plaintiff demanded certain funds from Defendant Mountbatten so that the public improvements could be completed and public nuisances eliminated, demands which have been refused by Defendant Mountbatten. The "Wherefore" clause clearly seeks to require Mountbatten to comply with their performance bonds in addition to other relief. Equity has jurisdiction to enforce the payment of money where a fiduciary relationship is involved. Ramsev v. Ramsev, 351 Pa. 413, 41 A.2d 559 (1945). Specifically, in this matter, the Borough of New Cumberland is the intended beneficiary of the funds posted to guarantee completion of the improvements. In light of the forgoing counts which deal with the individual defendants and J.M. Fivell Co. and the unique remedies sought in this case, equity is the preferred and most convenient remedy to insure a just disposition of the issues involved. However, in the event this Honorable Court deems that equity is not the appropriate jurisdiction for this matter, proper and standard procedure requires that the latter two counts be trans- ferred from equity to the law side of the Court. 14 Standard Pa. Practice 2d, ~79.41. 18 The twelfth area briefed by Defendants again challenges Count V of the complaint as to whether or not it allows the Defendants to frame a proper answer and defense to the paragraphs contained therein. This objection is clearly without merit as the paragraphs identify the obligation (the performance bond), the breach of the performance bond and the request for specific performance. Paragraph 62 incorporates the prior paragr- aphs of the complaint which identify the public improvements which have not been completed or installed. In summary, Defendants can adequately answer the paragraphs set forth in Count V. Accordingly, Plaintiff respectfully re- quests dismissal of Defendants' preliminary objections with direction that Defendants file an answer to the Complaint. Defendants' last objection is in the nature of a demurrer and challenges Count VI of the complaint on the basis that Plain- tiff, as a municipality, is not entitled to bring a direct, priv- ate cause of action based upon violations of such act. The Unfair Trade Practices Act and Consumer Protection Law (hereinafter referred to as "The Act") was essentially designed to protect the public by discouraging unfair and deceptive trade practices. Commonwealth bv Creamer v. Monumental prooerties Inc., 459 Pa. 450, 329 A.2d 812 (1974). 73 P.S. ~201-9.2 As defined by ~ 201-2(3) of the Act: (3) "Trade" and "commerce" mean the advertising, offering for sale, sale or distribution of any services and any property, tangible or intangible, real, per- 19 sonal or mixed, and any other article commodity, or thing of value wherever situate, and includes any trade of commerce directly or indirectly affecting the people of this Commonwealth. (4) "Unfair methods of Competition" and "unfair or deceptive acts or practices" mean anyone or more of the following: (xiv) Failing to comply with the terms of any written guarantee or warranty given to the buyer at prior to or after a contract for the purchase of goods or services is made; (xvii) Engaging in any other fraudulent conduct which creates a likelihood of confusion or mis- understanding. The Act should be construed broadly in order to achieve the goals of the General Assembly for the purpose of preventing and discouraging any form of fraud, unfair and deceptive business practices. Culbreth v. Lawrence J. Miller, Inc., 477 A.2d 491, 328 Pa. Super 374 (1984). In this case, the bonding company Mountbatten, held out through Defendant J.M. Fivell Company, a bond to benefit the Borough of New Cumberland, an implied beneficiary of the contract between Mountbatten and J. M. Fivell Company. As an implied and intended beneficiary of the performance bond, the Borough of New Cumberland stands in the same shoes as the individual Defendants and J.M. Fivell Company, agent of Defendant Mountbatten. In such position, the Borough is beneficiary of the bond and is entitled to seek the funds from Defendant Mountbatten on behalf of its agent, J.M. Fivell Company. After reasonable demand, no funds 20 The Borough of New Cumberland (hereinafter "Plaintiff") instituted this action by filing a Complaint on May 21, 1997. The Complaint seeks equitable relief from, and monetary damages for, Defendants' alleged breach of '(i) the approved subdivision plan, (ii) a Development Agreement (and extension thereof) between Plaintiff and the partnership, and (iii) the performance bond. Count I of the Complaint is directed solely against the Partnership. Counts II through IV are directed against the Partnership and the partners.1 Counts V and VI are directed solely against Mountbatten. On May 23, 1997, the undersigned counsel accepted service of the Complaint on behalf of the Partnership and Linden R. Gates, Jr., Lois J. Gates and Lowell R. Gates, individually. On June 13, 1997, the undersigned counsel entered an appearance and filed preliminary objections on behalf of those Defendants. On June 19, 1997, the undersigned counsel accepted service of the Complaint on behalf of Mountbatten. On July 8, 1997, the undersigned counsel entered an appearance and filed preliminary obj ections on behalf of Mountbatten. Counsel for the borough listed the preliminary objections for argument on August 13, 1997. This brief addresses both sets of preliminary objections. IThe captions to Counts II through IV indicate that they are brought against "J.M. Fivell Company, et ai." Although the "et ai." designation could include Mountbatten as well as the partners, the substance of the counts does not pertain to Mountbatten. 2 III. ARGUMENT A. THE ENTIRE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO CONFORM TO PA.R.C.P. 1019(H). Failure of a pleading to conform to a court rule is a ground for preliminary objection. Pa.R.C.p. 1028(a) (2). If a claim is based upon a writing, then a copy of that writing must be attached to the pleading in which the claim is raised. Pa.R.C.p. 1019(h). When a preliminary objection has been raised, "a complaint should be stricken for failure to attach an essential document." Adamo v. Cini, 656 A.2d 576, 579 (Pa.Cmwlth. 1995). Reference is made throughout the Complaint to a certain preliminary/final subdivision plan for "Gates Manor". Reference is made throughout the Complaint to Defendants' failure to comply with conditions set forth in the subdivision plan. These alleged breaches by Defendants are a basis for the relief requested in the Complaint. However, a copy of the preliminary/final subdivision plan was not attached to the Complaint as required by Pa.R.C.P. 1019 (h) . Therefore, the Complaint should be dismissed. B. IMPERTINENT MATTER REGARDING DRIVEWAY CONSTRUCTION SHOULD BE STRICKEN FROM THE COMPLAINT. InClusion of impertinent matter in a pleading is a ground for preliminary objection. Pa.R.C.p. 1028(a) (2). Impertinent matter is that which is irrelevant to the material issues of the case and which, whether or not admitted or proven at trial, can have no impact on the decision of the case. 5 Standard Pennsylvania 5 where there is no adequate legal remedy. Philadelphia v. pierre uniforms, Inc., 369 Pa.Super. 246, 252-253, 535 A.2d 142, 145 (1987). The Complaint does not explain why there is no adequate remedy at law. To the contrary, the requests for injunctive relief are interspersed with demands for monetary damages. Therefore, Plaintiff's requests for injunctive relief are legally insufficient and should be stricken from the Complaint. Pa.R.C.P. 1028(a) (4). E. COUNT I OF THE COMPLAINT SHOULD BE DISMISSED FOR INSUFFICIENT SPECIFICITY IN THE PLEADING. Insufficient specificity in a pleading is a ground for preliminary objection. Pa.R.C.P. 1028(a) (3). "The purpose of such a preliminary objection is to insure that an adverse party's right and ability to answer and defend will not be unduly impaired by a pleader's vagueness in stating the grounds for [its] suit." 5 Standard pennsylvania Practice 2d 525:57. Reference is made in Count I of the Complaint to (i) certain public improvements which Defendants have failed to complete, (ii) Defendants' failure to comply with conditions set forth in the subdivision plan and (iii) Defendants' breach of the Development Agreement. However, the Complaint does not SUfficiently specify what public improvements are not complete, what subdivision plan provisions have not been complied with. or how Defendants breached the Development Agreement, so as to enable Defendants to prepare a responsi ve pleading. Therefore. Count I of the Complaint should be 7 dismissed. F. COUNT II OF THE COMPLAINT SHOULD BE DISMISSED FOR INSUFFICIENT SPECIFICITY IN THE PLEADING. In Count II of the Complaint, Plaintiff avers that Defendants have not completed certain public improvements in accordance with (i) generally accepted standards and (ii) the plans. profiles and cross-sections submitted by Defendants. However, the Complaint does not SUfficiently specify the generally accepted standards or the plans, profiles and cross-sections submitted by Defendants. so as to enable Defendants to prepare a responsive pleading. Likewise, the Complaint does not SUfficiently specify how the public improvements deviated from the generally accepted standards and the plans, profiles and cross-sections submitted by Defendants. so as to enable Defendants to prepare a responsive pleading. Therefore, Count II of the Complaint should be dismissed. Pa.R.C.P. 1028(a) (3); 5 Standard pennsylvania Practice 2d 525:57. G. COUNT II OF THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO CONFORM TO PA.R.C.P. 1019(H). In Count II of the Complaint, Plaintiff avers that Defendants have not completed certain public improvements in accordance with the plans, profiles and cross-sections submitted by Defendants. However, copies of the plans. profiles and cross-sections were not attached to the Complaint as required by Pa.R.C.P. 1019(h). Therefore, Count II of the Complaint should be dismissed. Adamo, 8 supra; Pa.R.C.p. 1019 (h) and 1028 (a) (2). H. PLAINTIFF I S REQUEST FOR PBR DISH FINES SHOULD BE STRICKEN FROM COUNT II OF THE COMPLAINT. In Count II of the Complaint, Plaintiff requests that the Court assess per diem fines against Defendants. However, Plaintiff did not plead any legal grounds for the assessment of such fines.2 Therefore. Plaintiff's request is legally insufficient and should be stricken from the Complaint. Pa.R.C.P. 1028(a) (4). I. COUNT III OF THE COMPLAINT SHOULD BE DISMISSED FOR INSUFFICIENT SPECIFICITY IN THE PLEADING. In Count III of the Complaint, plaintiff avers that Defendants have constructed narrow driveway lanes on several lots. Reference is also made in Count III of the Complaint to Defendants' past history in dealing with ordinance violations. However, the Complaint does not sufficiently specify the lots on which the narrow driveway lanes were constructed or Defendants' past history in dealing with ordinance violations, so as to enable Defendants to prepare a responsi ve pleading. Therefore, Count III of the Complaint should be dismissed. ~a.R.c.p. 1028(a) (3); 5 Standard Pennsylvania Practice 2d 525:57. 2Count II of the Complaint refers to 53 P.S. 510515.1, which is part of the Pennsylvania Municipalities Planning Code. That section does not provide for the assessment of per diem fines. Although 53 P.S. 510515.2 and 510515.3 do allow for the assessment of per diem fines, initial jurisdiction over such proceedings is given to the district justices. 9 J. COUNT IV OF THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION FOR PUBLIC NUISANCE. In Count IV of the Complaint, Plaintiff requests relief for a public nuisance arising from the alleged storage of stone, dirt and fill on the subject property. Even if the alleged facts are true, they would constitute at most a private nuisance affecting the neighboring properties rather than a public nuisance affecting the community as a whole. Summ pa Jur. "Torts" 521:4. Therefore, Count IV of the Complaint is legally insufficient and should be dismissed. Pa.R.C.p. 1028(a) (4). It. COUNTS V AND VI OF THE COMPLAINT SHOULD BE DISMISSED FOR LACIt OF SUBJECT MATTER JURISDICTION. In Counts V and VI of the Complaint, Plaintiff seeks an injunction prohibiting the sale, transfer or lease of any lots, buildings or dwellings on the subject property. Counts V and VI are directed solely against Mountbatten. Mountbatten has no legal or equitable title to the subject property. The partnership, as the sole owner of the property, is an indispensable party to any request for equitable relief affecting the property. 14 Standard Pennsylvania Practice 579:106. Therefore. the Court lacks jurisdiction over the SUbject property so as to grant the injunctive relief requested in Counts V and VI. and those requests should be stricken from the Complaint. 10 L. COUNT V OF THE COMPLAINT SHOULD BE DISMISSED FOR INSUFFICIENT SPECIFICITY IN THE PLEADING. In Count V of the Complaint, Plaintiff avers that public improvements which were guaranteed by Mountbatten have not been completed in accordance with the subdivision plan. However, the Complaint does not sufficiently specify which improvements have not been completed. so as to enable Mountbatten to prepare a responsive pleading. Therefore, Count V of the Complaint should be dismissed. Pa.R.C.p. 1028(a) (3); 5 Standard Pennsylvania Practice 2d 525:57. M. COUNT VI OF THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION UNDER THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW. In Count VI of the Complaint, Plaintiff requests relief under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 5201-1 et seg. Specifically. Plaintiff seeks treble damages under 73 P.S. 5201-9.2 in connection with Mountbatten's issuance of the performance bond. However, 5201-9.2 provides a cause of action only to persons who purchase or lease goods or services for household purposes and thereby suffer a loss of money or property by reason of an unlawful trade practice. The performance bond was purchased by the partnership, not plaintiff, and the bond was used for commercial, not household. purposes. Therefore, the request for relief under the Unfair Trade Practices and Consumer Protection Law is legally insufficient, and Count VI of the Complaint should be dismissed. Pa.R.C.P. 1028(a) (4); see Cumberland Valley School 11 I l' , 1 .... ~ ~ ~ lil. I o v I l , ~, '.'l"~' ". .... .. ~ ('. i."J .y. ";. ~ .v~ i ;:~.: ,. ~ , ~ 5. Defendant Linden R. Gates, IV is an adult individual with an address of 1440 S. York street, Mechanicsburg, Cumberland County, Pennsylvania. 6. Defendant Lowell R. Gates is an adult individual with an address of 205 W. Green street, Shiremanstown, Cumberland County, Pennsylvania. 7. Defendant Jeffrey O. Gates is an adult individual with an address of 1230 Blossom Terrace, Boiling Springs, Cumberland County, Pennsylvania. 8. Defendant Michelle L. Schenk is an adult individual with an address of 306 West Elmwood Avenue, Mechanicsburg, Cumberland County, Pennsylvania. 9. Defendant J.M. Fivell Company is a fictitious name for the individuals who operate as partners as identified in para- graphs 2 - 8 above with a registered office as 303 W. Maple-wood Avenue, Mechanicsburg, PA 17055. 10. Defendant Mountbatten Surety Company, Inc. is a corpora- tion organized and existing under the laws of the Commonwealth of Pennsylvania, having its primary office at 33 Rock Hill Road, Bala Cynwd, Pennsylvania, 19004, and conducting insurance and bonding business throughout the Commonwealth of Pennsylvania. 11. On or about October 19, 1984, the \~est Shore School District conveyed a certain plot and tract of land situate in the Borough of New Cumberland to J.M. Fivell Company, defendant 2 , . , " '. " .. , / . , , . , herein. 12. On or about July G, 1994, the Borough of New Cumberland approved a preliminary/final sUbdivision plan known as "Gates Manor" which was presented for approval by the Defendants. 13. The preliminary/final subdivision plan known as "Gates Manor" (hereinafter referred to as "Gates Manor") was recorded in the office of the Recorder of Deeds of Cumberland county. 14. The Gates Manor preliminary/final subdivision plan consists of twenty-one (20) lots in a residential zoning district within the Borough of New Cumberland. 15. On or about June G, 1994, Plaintiff and Defendants executed a Development Agreement wherein the Defendants agreed to install certain public improvements and complete the Gates Manor Development in accordance with certain standards and periods of time. The Development Agreement is attached hereto as Exhibit "AII. 1G. Simultaneously with the execution of the Development Agreement, the Borough of New Cumberland was presented with appropriate financial security in the nature of a bond from Defendant Mountbatten surety Company, Inc. to guarantee corn- pletion of the public improvements. A copy of the bond to guarantee completion of the improvements is attached hereto as Exhibit "B", ) , ' . . . . 31. All public improvements ware required to be completed prior to September G, 199G. 32. Defendants not complied with the conditions set forth on the preliminary/final subdivision plan and have breached the Development Agreement and extension thereto. WHEREFORE, the Borough of New Cumberiand, pursuant to section 515.1 of the Pennsylvania Municipalities Code, 53 P.S. ~10515.1, et sea., respectfully requests that this Honorable Court: (A) Order Uefendants to complete the development known as "Gates Manor", along with all public improvements, road appur- tenances, sub-surface drainage and all utilities, in accordance with the approved and recorded subdivision plan, the Development Agreement and Extension thereto; and (B) Direct that Defendants pay the sum of $25,000.00. together with interest, to Plaintiff, the Borough of New Cumber- land, and any additional amount to guarantee completion of the necessary public improvements and bring the development to acceptable standards; and (C) Enjoin the sale of any lots, the transfer of or lease of any buildings or dwelling on un lot set forth in Gates Manor; and (D) Any other relief deemed just and equitable, including the payment of all attorney fees, interest and costs awarded to the Borough of New Cumberland. 7 , , . . law. WHEREFORE, tho Borough of New Cumberland, respectfully requests that this Honorable Court: (A) Order Defendants to comply with all requirements of Borough Ordinances as required by law and agreed to by the Developer in accordance with the preliminary/Final subdivision Plan; and (B) Enjoin the sale of any lots, the transfer of or lease of any buildings or dwelling in the Gates Manor Development; and (C) Direct any other relief deemed just and equitable, including the payment of all Plaintiff's reasonable attorney fees, interest and costs of hearing. QPUNT IV BOROUGH OF N~W_CU~~ERLb~~_~2~M. FIVELL COMPANY. et a1. CONTINUING PUBLIC NUISANCE/ DANGER TO COMMUNITY 45. Paragraphs 1 44 are hereby incorporated as if set forth at length. 46. During excavation and construction, Defendants have unearthed substantial and enormous amount of stone, dirt, fill and other natural materials. 47. Defendants have not disposed of these natural materials, storing such accumulations of stone, dirt and fill in one large pila on LI portion 01 the development. 11 . . . . dence and return receipt card is attached hereto. 55. The November 4, 199G letter advised Defendant, Obligor, Mountbatten surety Company, Inc. that Defendant J.M. Fivell Company, the contractor under the bond further demanded the sum of $25,000.00 from Defendant Mountbatten surety Company, Inc. to complete specific public improvements as outlined in paragraph 35 above. 56. The November 4, 1996 correspondence requested the sum of $25,000.00 within five (5) busincss days from receipt of the letter, which five (5) day period expired on or about November 11, 199G. 57. To date, Defendant Mountbatten Surety Company, Inc. has failed to tender the sum of $25,000.00 in violation of the performance bond and Dcvel.opment Agreements, including extensions thereto. 58. Defendant Mountbattcn surety Company, lnc. has breached the terms of the construction bond. 59. The Borough of NevI Cumberland has met all terms and conditions of the Development Agreement and performance bonds and is an innocant party to the guarantee presented by Defendants in lieu of approval of the subdivision plan. GO. 'rhe public improvements which \"ere guaranteed by Defen- dant Mountbatten Surety Company. Inc. have not been completed in accordance with the Subdivision Plan. 14 , ' 61. As a result of the aforesaid failures and breach of performance bonds, Defendant Hountbatten surety Company, Inc. breached the performance bond ilnd all subsequent guarantees with Plainti ff. ImEREFORE, Plaintiff, the llorough of NC~I Cumberland respect- fully requests that this Honorable Court; (A) Order and Direct Uefendant Mountbatten Surety Company, Inc. to comply with all requirements of performance bonds by forwarding sufficient funds to the Borough of Ne\~ Cumberland for completion of the development as required by lml and agreed to by the Defendants; and (B) Enjoin the sale of any locs, the transfer of or lease of any buildings or dwelling on tilt) land pending completion o'f said public improvements; and (C) Direct any other relief deemed just and equitable, including the pa}'ment of all att:orney fees and costs, plus interest. CO UN'!' VI BOROUGH OF NEW CUMBERLhKD~ MOU~TBATTEN SUR~rY COMPANY. INC. 9MFh~R-jRhD~_~_~CTICES G2. Paragraphs 1 - G1 are hereby incorporated as if set forth at length, G3. Presentation of pCl"fonn,lIlce wands "nd written guarantees to complete public improvements is governed by the Unfair Trade lS , . . . presentations made by Defendant Mountbatten Surety company, Inc. GG. As a result of the aforesaid statements of fact and actions, Defendant Mountbatten Surety Company has violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. section 201-1 et seQ. WHEREFORE, Plaintiff, the Borough of New Cumberland respect- fully requests that this Honorable Court; (A) Order and Direct Defendant Mountbatten Surety Company, Inc. to comply with all requiremants of performance bonds by forwarding sufficient funds to the Borough of New Cumberland for completion of the development as required by law and agreed to by the Defendants; and (B) Enjoin the sale of any lots, the transfer of or lease of any buildings or dwelling on the land pending completion of said public improvements; and (C) Direct judgment in favor of the Borough of New Cumber- land and against Defendant Mountbatten surety Company, Inc. in the sum of $25.000.00, plus interest, court costs and attorney fees, together with an amount in excess of $25,000.00 plus inter- est and court costs, as determined by this Honorable Court which in its discretion may award a judgment three times the amount of the award which fairly represents the losses sustained by Plai- ntiff and any .ldditional n~lier as deemed necessary and proper p- ursuant to 73 P.S. ~ 201-9.2 et se~ 17 ~ ~ > , . NOW. 'rHEREFORE. in consideratior. of the mutual promises herein set forth ~nd Intending to be legall; bound. the parties agree as follows: 1. :wne r shall proceed orcmptly to ,construct the improvements <I::d shall pay for the same 'tlith his own funds. Owner will ins';aLl silnitary se'tlers. .tlat~r lines. streets. curbs. sidewalks. lJonq with any required appurtenances. and any other required mUnlClp<ll improvements, all in accordance wieh the plans' and SpClC if i (;a ::ions submi t Led and approved (the "Imprl)vements"). I., ,:onstrucUon shall be in accordance '.~ith laws, ')['dinancBs, i!1d requlations of SLate. Borough and Department of Env 1. romn€!l':3.1 Resources, .....i th respect to .sewage, and 'N'i r.h la'IIs, :.;:-.iinan(.:~p! -1:>i ~e':Julat.ions ,)f Sa~~ ~nd 3or~ugh Eor 3.11 other imp:.\)vemenr.s. .1 ).....n:r 5hall 80mmence ccnstr"Jc:..i:Jll of c:le Improvements JnljlpOn ~ri~:en aut~orlzation of Bcicugh and shall back fill and ij~l trenches ~o ~ll Oth9! improvements; Owner shall ?ive notice to 3or~ugh or ja~e of :o~mencement of construction, in writing. ,J. Ror::'Jgh ::nd a',';ner shall estal::li.sh 3. .sci:adule fQr -. i:1spectJ:)n ~~!-.;o!":t to be done. 3cr,~ug;" 3.nd ::;w:uar 3.gree that lilspe'.::: i.Gf~ .3h3.l1 be perform-3d OJ" the Eorough Sn<; ineer. John L. ~hambaugh, :.)~ _:'>:~er dul~l 3.uthorized represen,:at.ive :)f t~e 3orough. Jwner :;:1a.ll ~rQ'itde Bcrough with ',.;rit.ten notice concerni:1g specific requests tor Inspection during the course of completion of the ',~(1rk . The Nreed upon inspections must be completed and all problems, If a~y. resol~ed to the satisfaction of the Borouqh prior J. . . , . 3hall be deemed to limit: the dght of Bonding Company supplying the Performance Bond or ~ny extension or renewal thereof from applying '.or a part ial release pursuant ~o Section 509 (j) of the ~uniGipalities Planning Code. 9. .1. ,I. l"i vell Company '..,arrants that it .is the owner of the property and has full authority to enter into this Agreement lO. In accordance 'IIith the 3.pplicable provisions 'of the" Pennsylvania :-!unidpa li ti.es Planning Code. Owner agrees to ['eimburse Borough Eor all reasonable and fair inspection fees ::har:;ed by the Borough Engineer and other fair 3.nd reasonable fees incurred by the Borough in ::onjunction with this project, such fees 1:0 be in accor'Jan';e '.~it.t e fee schedule to be supplied by the ':3orough ",.oJ such fees nct to be in c:xcess of Three Thousand and ,)0..100 Uollars ',$3 000, 'J,'):. Said reJ Inbursement shall be paid by )wner to Borough 'IIlt!!.i:: t.an (lO) days of submission of itemized Invoices by Borough :0 2wcer. 11. al.mer shall sa'::ura and maintain public liability lnsurance .,...1 th limi ts .:: ~:.. aOG. 000,00 per claim and $1. 000.000.00 per :lcciJent nami:;'.; Eorcuq~" i:5 age::t.s. employees or assigns as 3.dditicnal insured parells in order t.o protect and insure said parties 3.gainst Jny and a' ~~ia!:llity '..,it:h respect to the :onstruction of the improvement:s cont.emplated by the terms of this agreement and sha.il. upon request.. furnish the Borough '..,ith a :ertif icate of insurance evidencing Owner's compliance '..,i th this requirement, 11 ~ t- o: t- o..: tII "r~nHAller. .l!illll1 1101/1) 110. UIIIU-00009l_PP I<nol< oll "'~" by ll,uoe P"".elll 1:1101: '\"e, oI'.L,':I, .1'Jvr.L1...._, __'_'_ [,1\lcr1!!:I.wlJ.H~..a.\tJ.J!!ll!t,_~~'l'l!i1<9d .{I.Y\\nlJr:..._M~""l\,1n \!;~)'lJr(I"" I"Lllor,~ . h~r"I/1illtu.. uulleel the PllLI/Cll'AI" of th~ Cn'lIIly or (;"II'll>,ftrJ.M(!., "1111 tho 9tot.. u[ ". DUllY I !!.On In , ~n<l I:IQII/I'rI'.1I1'T~:!LWII!JBP.III:f1:.!t'I'AI!.... llIG.JllilluJ:r....i,Sl/Jj):;'fY .,\;Q., ,1m:. ,,-T.hJr~y., 'l'llT.nI," Ilg.r.:l: IlUl "o,lll. ~dli\_ m}{yIL..I.'A..J~QJH of 1.I1fl COII/1ty of tl2ulQ9Jl1Ory "'", thl! Ill,1t" oJ' .cswIQ.tl~"/1l.n are h(llel AIIlI t!l'm!y houncl to thn /.10UOW:1I qLIIE1L_. J:.1l11IUillLAlfU, J/1 tho "um at I,WJ'I'Y .QllE...TI!QI!Sl>lIItJl);;l!Il'!T'LAIIO_W;YIOQ.~ "_~.:.::Dollal'S ($RI,O'/O), 10l<ful IIlonoy or till> lInitncl Illot"" t(, h. I'oid to t.hn noid .!lQJ1..l!l!GIl..QL. I'Jili...r;uMU~!!rll/lll 01' llu onqJ'Jn~, J'or '"WeL'"lly, tlrr"Iy by theM presnnt, our' heojJ', (.IXltCtlf:Ot"S, iHhnlnintr.c.tf"f-n Ot" .!IUr!t::O!'H~n"n, Jollltt~. "nd which l}jJYmc.mt, woll 11neJ 1.:"111\' to tin mndl'3, We bind ours;nJw_!; /'lnt! Soa.lOlJ with DIU' SQaJr. (\U(j d.,t:oll thin l~t d..,y or ...tli.lY ._.__. JII t.ho yea,' of our Lord olin t.ho,wAIIlI nino hundr,,<, nJn!lt:l. fo!!!:. WHt;ltEAS, the Ahovn bOlln<.lv/1 PRIIlC [I'M. hM entn,"pel I ntn a ['<,vvlol,mollt IIqreument with thn Boron'lh or Nel< Cnml;oprlAn,1 ,1"t",1 Hay 1, [994, which A<jreemonl. Js incorporatN) hernln fo,", A"""l} othal' t.hings, tho construl::tlQJl L"'- '~t9ht .rnG1\_CJ.r:"vjt\'~f.!l"'~J:'~__~LLth /lQnJIR1.!lJ!.._.t;i91J.!:....J.1I!.:h C,J,......!l.J".l!;!.tJn'Mdns, V~,r,I.Il!"l COllCru{', .c.uJ:ht.J:.lyLk:09t_\tlqfL_c.onCt!!~~tJ~J.fleW'o IJ~ I.. ;'JJc1 l"nv t n9 o( r~1Itw~~(.~I __.. Slt"eel l'.lt_fHIl:or. "';!.IJD.t.~ ._._ ...._ ..-.--..__h_.._____ U(JUIl cerl:ain lennn nntJ cendit'on~ ~~flt rnrth in !-l:nid pnnICTPAJ.I~ propt')!1l\l hf!'n!with !ulbmJ tt.n'l. NOW, TJlp.Reronr:, tho c(Jndition or thia oblJrrntion iG ~H1Ch I r tho I'HllICIPAl, ohall 1<.1.1 and faithflllly dn An,t pPI'r""m. accordin'lly to the true Intent and nleanlng of RAid centroct. all the obllqat1unu and cendl tion... t.h"l'p.of cpo"l flcally snt forth in the propesi'll nUhmitt:t.'!d herewith nnel Gaid contri1ct, lIwn t:hj~ obligAtion nhall bo void and nt' no "thet, "th"rwl,,,, 1l l.lh~l1 bp. Ul1d .l'(nn,,1n in lull tOl'CO .ll1d ('f(o...:t, IU WITUESS Wlfl-:R:EOF, th~ p.lrtJnn h..vC'! hCr('lllnto ll{lt their hl'lIHo tttu.l seals, thp. dAY Anti Y(t....,r t jrst .,bovl" 1..'r1t.t'_('n. Alh'sl', (T "'f7i;r;;f.;r.:1tl~' j't., nc I p.,') ;.---.- Secretllry of TrOa"llror At~pg~ 'l.J1.......1:1.Yla.k.I'AH'I'/I~IlSIlII' (r.,,,, I ) 1'T1'Ir. 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N"._._<a. ___:.s_S"..._.~ j _0 .....__.... ___.' .....~~" _..... :.......:-.-: ,::-_-:-__.-:- :-. :.....- ...--- ::::. .:-.:::::. !;=.;::"~.:::l:: :e::= =':"-:-=.:.:": ~- :.::= ::::::~ ! 4 , l~: '\l:::'j~.s ",\o-:~CF. : :~":e ::e:-::"":::'= sc: =:--::.:.::.:: r..:i .,.:=-~ :..-:.e _.. :'_....;.~;..z:..;. :: ~~:e ':.::::c:::::::. ':: :.:-~ ~.e::::; :,:'..:,s j:.:.:;-':: 3~;::~~:::~= :s; 5 ~ L . ~.>- ~ 1:'-. '" /~-:, l"'--'--~W , i '~'- .;:.=:,." ::-, ~: :":l.lte~c~1\, .:..:&:1, :'::';~I 1.1" .:.:,. ~:::::"! :..:="~ :....:~~~ :", .,::,:~, .'. .. . . ------......- ..? ._~/ . '1 g c ;: n , . " , Pat Woyden Mountbatten November 4, Page 2 . .o' , Suret:! Company, 1996 ~:i.C. Please accepc this lecter as a demand/claim for the sum of $25,000,00, an amount which is necessarJ for the Borough to oerform the work which has noc yet been done and/or completed in accordance with the Subdivision Plan by J.M. Fivell Company. This amount should be forNarded to the Borough of New Cumberland within five (5) business days from receipt hereof. A_copy. Qf this letter is being forNarded to towell R. Gaces, Esquire, attorney for and interested party in J.M. Fivell Company. Your crornct res~cnse ~o and consideration of this letter is aooreciated. If vou have an'; :::l1estions olease do not hesitate to .... .. .. .. .. contact me a~ your ~os~ ea~liest convenience. ACS/-:as 'ie,4~2~:orS )jlJJt ~,,~--.' - -"--r" - ~~ .....,L.;~;:.~ 1"".. .:Jr:....:..:.....d:, .:JO _ ll".or =o~:ll.:gh ::: :leON Cu:nbe nd cc: Lowell R. Gates, ';::squ:.:-e Stephen c. Sul:zaberger, New Cumberland Borough Manager p ;:2u 5,35 =53 CERTIFIED ~;IL =~ 224 5aS 953 ...5 ::l-:s:ai Sl?r,ICa Receipt for Certified Mail ':c !nsutance :.:...et3ge ?~CV1Ct!'O. ':c "let usa ler lnternaticnal Moil! {Se?ft ,.~"'efSe' :~f'O ....l~:Tb~-" :::0.... l;.t\.... l...i: , ~, (:." , L. ' ", . .~."'iG... LL(. r.~" ::r....11~-~,. , ':3"3 ><;;a. \\, II Kc.c-a , ':~~I Cffictl. Slale. i Z~P eVC!! ~\f' (' '~"'r\ \>~ \'1CC'-l : ''''',' . . I s , '1..-- : Cdod F.. J I ( r 1) I I I , .=:eSlt'iCtd Cl!:i~ery ;~~ ! I :cecal Ce~~el"f F,e ~., ! 5 ; ;:l-.rum ~ec!l~1 SI'Io'll'It\') to - : ',\'t'om i :ale Centred I;,~t~~~<<t't:ts.\.."\IIn;':O..~~ .. ,'"'-: o:t. :a:l'. ~ Io:lO'tsS~,,~tu ~ -.,;. i ",", I /' '7-'.-1 I ;,5i':'C)r"l.:)~staliel.~.e~ ?:::::::; .....p, I ~ ::"'l1,)':f/'!'llno"rCal!! -"," '7 J-V i ~ ;.:.:" /,.;. I : . '----" . ,-:. " ,.1 " ; -- ~ ~ SENDER: ':ji . C"mcfete .tlms : 'I\Ole' Z 'or 10(l.tI0".I1 t""",". = . ':"I'\"lQl.tt .te"", J. Inc .tJ !a ~. '.II . P"Tnt Your "'",It ..na 'Ooran on :tie '8"1'" af :nll 'orm SO tl'l.t ""1 "n Z 'eturn Ii'll' ~ar'3 ~o 'IOU . . > ! . "r.ac:n tn,s '0"" ~o ~n. "co". JI !~. m.tdt;I'C:'. 0' ~ the tllew. If 'ele. ::::0.. nor .:IIIm't. ] . Wtltll "A.t1JrnRecIIOI R.c:u.tttO" on tll. ml.IOl<<."btlcw ttl"I11CI.n~c.r - . n.t A.t1Jtn =l.CtIOt '....111 shO.... to wtlc:lm :rot "tlCl, w.. dllly.r'd Ind tl'Ie Cllt. a ".IIvlr.o. ":S 3. Anicle Addressed to: ~ ~ II.\c\,o.,'.\.b,,-~-,,'5......a"l es,....i'o..r.'f.~. g C/o H:..\- ~~c'\a"-,,, Cl.:-.; ,"" 'R.cpre:i",,~.\iq ~133~ \-hI! ~ ~! b:uo.:-Q.'1"...:(I 1'A- IC;COLj OJ .;...,..- '- QI <(I Z' a:: 5. Signature IAddresseel ;:)i I >-, ~l 6. Si9nru'~.oentJ ~ ,1'--. )/'0 ',',,='-- ; ?S Form 381 ,. DccemtJlJI 199' ~us, GPO: '"3-.1$2.7'.. .' r . I also wish to receive the following servIces ltar an 'XIII'! f..,: f 1. C A.ddresses's Address 2. 0 Restricted Deliverv Consult DOStmasZer for fee. 4a. Article Number f) ob1 ~ ~ '1s'3 4b. Service Type o A.gist.l.d . Certified o EJcP,..,j"\'411 b~oailf eli... Addr ssee s Addless (Only" requested and fee IS paid) ": ::J Insured o COO o Retum Receipt '01 Mer hlndise I a. I , : DOMESTIC RETURN RECEIPT VI & ~ s ::J vi " '" - I: I , . ! ~- If) .... 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U , . 2 l:l.c ~ i fI) II. ; ~ .: '0 ~ ., u oJ w .' 0 0 6 - II. fI) ~ . ~~ ~ 5 j~ ~ fI) 5 ;J ~ .. i " Ii I y , ." '. I ., .l I I ~ 0' ?: N ..,. ~R N :5~ Q ~J~ x: f..l;'j: .r-" c.. ,1~ ~f: ,. <.. M ;5~ u. u:ltl ::r. ih .," => ~j f:-' ..., ll. - . 0 r- ::l 0' U ~~.:. " -- (tl . i.r; Ii. l~ :-~ .. 0' W\:': :i .-< - , );; ~1C-'" ) I;:;' ....:. r~ J 01":- , . t; ,n (.y~ '., . W" ...J,. -' I ~ :~l IX. , ,. ::.J --......... .. """l :~~ IJ, .- "J U 0' [) .-1 -If i ~ ~ ~ 'C' ~ - ~ - .., ~ << 0- I I. "I ! ; ~ 0 '- (""; .... ;;!o .., N ~; Q i.);6 ~i' x: :"J~ 0- :"j~ ~~' M :~~ 8: - .'L 'Z o.;~ - ,'11L1 - i'i It1u. < - ..~ ~~ 1I.. r- :> (.l (7\ U ~ ~~ "" ei - ~~ ?:: tJO {:;tJ~ ~ ~ ~ Bel ~ ~tl ~ . ~{:; ~ :::l ~.:~ ~~ ffi z {:; ~ Iil -Ill ..., 'i1l~ ..,c III~ ~~ !!l ~ l.J ~ ~ 1=1 ,s ,~ ~ w. ~ ~ ~ ~ CIl U uI ~ 0 S ii: fI) ~ ~ ~ g ~ ~ iil wo:l c:i fI) ~ ~ I . ~ . III ffi > ~ ~ ! ~ I ~ ~ V. INSUFFICIENT SPECIFICITY IN A PLEADING (COUNT I) 10. Reference is made in Count I of the Complaint to certain pUblic improvements which Defendants have failed to complete. 11. Reference is made in Count I of the Complaint to Defendants' failure to comply with conditions set forth in the preliminary/final subdivision plan. 12. Reference is made in Count I of the Complaint to Defendants' breach of the Development Agreement and extension thereto. 13. The Complaint does not SUfficiently specify what public improvements are not complete, what subdivision plan provisions have not been complied with, or how Defendants breached the Development Agreement and extension thereto, so as to enable Defendants to prepare a responsive pleading. WHEREFORE, Defendants respectfully request that the Court dismiss Count I of the Complaint. VI. INSUFFICIENT SPECIFICITY IN A PLEADING ( COUNT II) 14. In Count II of the Complaint, Plaintiff avers that Defendants have not completed certain public improvements in accordance with generally accepted standards and the plans, profiles and cross-sections submitted by Defendants. 15. The Complaint does not SUfficiently specify the generally accepted standards or the plans, profiles and cross-sections 3 submitted by Defendants, so as to enable Defendants to prepare a responsive pleading. 16. The Complaint does not sUfficiently specify how the public improvements deviated from the generally accepted standards and the plans, profiles and cross-sections submitted by Defendants, so as to enable Defendants to prepare a responsive pleading. WHEREFORE, Defendants respectfUlly request that the Court dismiss Count II of the Complaint. VII. FAILURE TO CONFORM TO RULE OF COURT (COUNT II) 17. In Count II of the Complaint, plaintiff avers that Defendants have not completed certain public improvements in accordance with the plans, profiles and cross-sections submitted by Defendants. 18. Copies of the plans, profiles and cross-sections were not attached to the Complaint as required by Pa.R.C.P. 1019 (h) . WHEREFORE, Defendants respectfUlly request that the Court dismiss Count II of the Complaint. VIII. DEMURRER TO REQUEST FOR PER DIEM FINES ( COUNT II) 19. In Count II of the Complaint, Plaintiff requests that the Court assess a per diem fine against Defendants. 20. Under the facts alleged, there is no cause of action for such a fine. 4 ) ~ . , I I ! : ~ i I .. 1 I I I ~ I .. I " ..Q I I , I ::l I . ~ , , 3 ~ I \ ct- \ "\ 0 , ~ ~ "- p 0 / ~ , 0 / ~ .. / , , ( t;;:) '1 ~ ~ c (~(:).. ' c0'0 . , 0- , ~ ~ .0 ~ . .' NO. 97-2720 EQUITY TERM Count I of the complaint alleges breach of a certain development agreement by Defendant J.M. Fivell Company through its failure to complete construction of various public improvements. Count II alleges the same derelictions by Defendant J.M. Fivell Company and the individual defendants' in connection with the related subdivision plan. Count III is based upon certain allegedly recurring ordinance violations associated with the project, such as improper refuse storage, substandard driveway construction and weed ordinance infractions; these violations are said to have been committed by Defendant J.M. Fivell Company and the individual defendants. Count IV alleges that Defendant J.M. Fivell Company and the individual defendants created a public nuisance through accumulations of stone, dirt, fill, debris and waste associated with the project. Count V is a claim against Defendant Mountbatten Surety Company, Inc. , for breach of its obligation as a surety in connection with the completion of public improvements. And Count VI asserts a claim against Defendant Mountbatten Surety Company, Inc., for violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, arising out of its breach of duty as a surety. Plaintiff's brief indicates that "et al." in the caption of various counts was intended to refer to the individual defendants. Plaintiff's brief, at 4. 2 . .' NO. 97-2720 EQUITY TERM Preliminary objections filed on behalf of Oefendant J .M. Fivell Company and individual Defendants Linden R. Gates, Jr., Lois J. Gates, and Lowell R. Gates are as follows: (a) a motion to dismiss the complaint for failure to attach a copy of the subdivision plan; (b) a motion to strike allegedly impertinent matter in the form of allegations of ordinance violations unrelated to the subdivision process; (c) a demurrer to requests for attorney's fees in Counts I through IV; (d) a demurrer to requests for injunctive relief in Counts I through IV, on grounds of an adequate remedy at law; (e) motions to dismiss Counts I and II for lack of specificity as to the public improvements referred to therein; (f) a motion to dismiss Count II for failure to attach plans, profiles and cross-sections for public improvements referred to therein; (g) a demurrer to a request for per diem fines contained in Count II; (h) a motion to dismiss Count III for lack of specificity as to Defendants' alleged history of ordinance violations and the lots affected by substandard driveways; (i) a demurrer to the claim for public nuisance in Count IV; and (j) motions to strike Counts V and VI for "lack of subject matter jurisdiction," on the ground that some relief requested from Oefendant Mountbatten in said counts assumes rights of ownership not possessed by a surety. preliminary objections filed on behalf of Defendant Mountbatten are as follows: (a) a motion to dismiss the complaint 3 .' NO. 97-2720 EQUITY TERM for failure to attach a copy of the subdivision plan; (b) a motion to strike allegedly impertinent matter in the form of allegations of substandard driveway construction unrelated to the subdivision process; (c) a demurrer to requests for attorney's fees in Counts II through VI; (d) a demurrer to requests for injunctive relief in Counts II through VI, on grounds of an adequate remedy at law; (e) a motion to dismiss Count II for lack of specificity as to the public improvements referred to therein; (f) a motion to dismiss Count II for failure to attach plans, profiles and cross-sections for public improvements referred to therein; (g) a demurrer to a request for per diem fines contained in Count II; (h) a motion to dismiss Count III for lack of specificity as to Defendants' alleged history of ordinance violations and the lots affected by substandard driveways; (i) a demurrer to the claim for public nuisance in Count IV; (j) a motion to dismiss Count V for lack of specificity as to the public improvements referred to therein; and (k) a demurrer to the claim for relief under Pennsylvania's Unfair Trade Practices and Consumer Protection Law. DISCUSSION preliminarv Obiections filed on Behalf of Defendants J.M. pivell Companv and Individual Defendants Linden R. Gates. Jr.. Lois J. Gates. and Lowell R. Gates Motion to dismiss complaint for failure to attach copv of subdivision plan. Under Pennsylvania Rule of Civil Procedure 1019(h), "the pleader shall attach a copy of the writing [upon 4 . .' NO. 97-2720 EQUITY TERM \~hich a claim or defense is based], or the material part thereof," to the pleading. However, "[w]here a document that has not been attached to a complaint is one that a responding party would likely have a copy of in its own files, an objection based upon the failure to attach a copy thereof will not succeed .... " 2 Goodrich-Arnram 2d SlOI9(h):(9), at 364 (l99l). In addition, under Pennsylvania Rule of civil Procedure lOI9(g), "[a] party may incorporate [in a pleading] by reference ... any matter which is recorded ... in the office ... of the recorder of deeds ... of [the county in which the action is pending]." A copy of Defendants' subdivision plan would likely be in Defendants' own files, and in any event would have been recorded in the office of the Cumberland County Recorder of Deeds. Defendants' motion to dismiss Plaintiff's complaint for failure to attach a copy of the plan will therefore be denied. Notion to strike as imoertinent alleaations of drivewav deficiencies which are alleaedlv not related to subdivision process. Under Pennsylvania Rule of civil Procedure l028(a)(2), a preliminary objection to a pleading may be based upon the "inclusion of ... impertinent matter." However, a plaintiff may "state in the complaint more than one cause of action against the same defendant ...." Pa. R.C.P. 5 .' NO. 97-2720 EQUITY TERM 1020(a). The claims may be unrelated. See 2 Goodrich-Amram 2d SI020(a):I, at 372 (1991). It is true that, in the absence of statutory authority2 or an inadequate remedy at law,' a court of equity will usually not assume jurisdiction for purposes of enforcement of municipal ordinances. However, statutory authority does exist under the Municipalities Planning Code for the exercise of equitable jurisdiction in the areas of subdivision and zoning. In addition to other remedies, the municipality may institute and maintain appropriate actions by law or in equity to restrain, correct, or abate violations, to prevent unlawful construction, to recover damages and to prevent illegal occupancy of a building, structure or premises.' 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, 2 Cf. Butler v. Butler, 377 Pa. 388, l05 A.2d 62 (1954). , See generally Newberry Township v. Ness, 79 Pa. Cornmw. 372, 469 A.2d 351 (1984). , Act of July 3l, 1968, P.L. 805, S5lS.l(a), as amended, 53 P.S. SI0515.1(a) (1997 pamph.). 6 " . NO. 97-2720 EQUITY TERM Conunonwealth of Pennsylvania, Department of Transportation v. Smith, 145 Pa. Commw. 164, l68, 602 A.2d 499, 50l (1992). No statutory authority, contractual agreement or other established exception to the general rule has been suggested by Plaintiff with respect to Counts I through IV of the complaint.' The claims for attorney's fees contained in these counts will therefore be stricken. Demurrer to reauests for iniunctive relief in Counts I throuah IV on around of available remedies at law. As noted previously, in the absence of statutory authority or an inadequate remedy at law a court of equity will usually decline to assume jurisdiction for purposes of enforcement of municipal ordinances.7 Statutory authority in this regard exists with respect to zoning ordinances, subdivision ordinances and obligations of a subdivider arising out of such ordinances.. In addition, the absence of an adequate remedy at law has been found to exist when repeated prosecutions under an ordinance have proven ineffectual. Borough of Kennett Square v. Lal, 165 Pa. Commw. 573, 645 A.2d 474 (1994). · It is noted that the present action has not been brought under Sections 5l5.3 or 6l7.2 of the Municipalities Planning Code. Act of July 3l, 1968, P.L. 805, S5l5.3, as amended, 53 P.S. S105l5.3 (1997 Pamph.)i id., S617.2, as amended, 53 P.S. S10617.2 (1997 pamph.). 7 See text accompanying notes 2-3 supra. See text accompanying and following notes 4-5 supra. . 8 " . NO. 97-2720 EQUITY TERM A review of the complaint reveals that Plaintiff has averred a basis for equitable jurisdiction under one of the above exceptions with respect to alleged subdivision, zoning and related violations and alleged violations of the municipality's weed ordinance. It has not alleged such a basis for equitable jurisdiction in connection with asserted violations of the borough's refuse ordinance. For this reason, paragraph 42 of Plaintiff's complaint will be stricken. Motions to dismiss Counts I and II for lack of specificitv as to public improvements referred to therein. As a general rule, " [a] claim should not be stricken ... for mere lack of specificity." Garrett Electronics Corp. v. Conwell, _ Cumberland L.J. _, _ (slip op. at 6) (September 17, 1997), citing 2 Goodrich-Amram 2d Sl017(b):12, at 256 (1991). In addition, "[t]he question to be decided when a preliminary objection in the form of a motion for a more specific pleading is interposed ... is whether [the] pleading is sufficiently clear to enable an opposing party to prepare a response ...." 2 Goodrich- Amram 2d Sl017(b):21, at 265 (1991). In general, when a party states a case in a manner that fully advises an opponent of the nature of the case and of the matters with which the opponent will be confronted at trial, there is no need for a motion for a more specific pleading; the opponent should seek discovery if he or she needs more information ...." Id., Sl017(b):24, at 268. 9 , " NO. 97-2720 EQUITY TERM " [i ]mpose a per diem fine for each day that the public improvements have not been completed beyond the scheduled date of completion." Although the court may have authority to impose a prospective sanction in the form of a per diem monetary penalty in the event a decree is disobeyed,12 the court is unaware of any authority for imposition of a fine "for each day that the public improvements have not been completed beyond the scheduled date of completion." The retrospective aspect of this language will therefore be stricken from the complaint. Motion to dismiss Count III for lack of specificitv as to prior ordinance violations and lots affected bv substandard drivewavs. The prior discussion pertaining to motions to dismiss for lack of specificityl] is applicable to this motion, and it will be denied on that basis. Demurrer to claim for public nuisance. The authority of a borough to seek equitable relief to terminate a landowner's use of his or her property in a manner deleterious to the public health on a public nuisance theory is well settled. See, e.g., Feeley v. Borough of Ridley Park, 121 Pa. Commw. 564, 551 A.2d 373 (1988). The use of a property may constitute a public nuisance where "the conduct [is] an inconvenience or troublesome offense that annoys 12 See Penn Township v. rvatts, 152 Pa. Commw. 359, 618 A.2d 1244 (1992). I] See text ilnmediately preceding, accompanying and following notes 9-10 supra. 12 . " NO. 97-2720 EQUITY TERM the whole community in general, and not merely some particular person." Id. at 567, 551 A.2d at 375. A house containing numerous cats has been held to qualify as a public nuisance. rd. A review of the allegations of Plaintiff's complaint with respect to long-standing accumulations of stone, dirt, and fill within a densely-populated residential neighborhood, dangerous to children and attractive to "animals, insects, vermin and other animal life," supports a conclusion that Plaintiff has pled a hazardous condition which could represent inconvenience or annoyance to the general community as opposed to one particular person. Defendants' demurrer to Count IV of Plaintiff's complaint will therefore be denied. Motions to strike Counts V and VI for lack of subiect matter iurisdiction. on Qround certain relief reauested assumes ownership riahts bv suretv. Counts V and VI of Plaintiff's complaint state claims against Defendants' surety, but include among the relief requested an order "[e]njoin[ing] the sale of any lots, the transfer of or lease of any buildings or dwelling on the land pending completion of said public improvements." It is not suggested in Plaintiff's complaint that the surety is a co-owner of Defendants' property. Under these circumstances, the court is in agreement with Defendants' position that it would not have authority to affect transfer rights as to Defendants' 13 -.." . NO. 97-2720 EQUITY TERM property by means of an injunction against the surety. This request for relief in Counts V and VI will therefore be stricken. I. Preliminarv ob;ections Filed on Behalf of Defendant Mountbatten Suretv Comoanv. Inc. General. Many of the preliminary objections of Defendant Mountbatten Surety Company, Inc., are identical or similar to those of the other defendants filing preliminary objections. Based on the foregoing discussion, Defendant's motion to dismiss the complaint for failure to attach a copy of the subdivision plan will be denied; its motion to strike impertinent matter will be denied; its demurrer to requests for attorney's fees in Counts II through V will be sustained; I' its demurrer to requests for injunctive relief in Counts II through IV, will be sustained or denied in accordance with the earlier discussion of identical objections by other defendants; 16 its motion to dismiss Count II for lack of specificity as to the public improvements referred to therein will I. A demurrer to Count VI on other grounds will be sustained on behalf of the named Defendant therein, Mountbatten Surety Company, Inc., as discussed hereafter. 15 Recovery of attorney's fees is statutorily authorized under Pennsylvania's Unfair Trade Practices and Consumer Protection Law. Act of December 17, 1968, P.L. 1224, S9.2, as added and amended, 73 P.S. S20l-9.2 (1997 Supp.). For this reason, the demurrer as to such fees will not be sustained as to Count VI of Plaintiff's complaint; however, a demurrer on other grounds to this Count will be sustained. 16 relief to practical The interest of Defendant ~Iountbatten in injunctive be granted against the other defendants would seem, as a matter, remote. 14 .. .' , NO. 97-2720 EQUITY TERM be denied; its motion to dismiss Count II for failure to attach plans, profiles and cross-sections for public improvements referred to therein will be denied; its demurrer to a request for per diem fines contained in Count II will be sustained, to the extent that retrospective language will be stricken from the relief clause; its motion to dismiss Count III for lack of specificity as to defendants' alleged history of ordinance violations and the lots affected by substandard driveways will be denied; its demurrer to the claim for public nuisance in Count IV will be denied; and its motion to dismiss Count V for lack of specificity as to the public improvements referred to therein will be denied. Demurrer to Plaintiff's reauest for iniunctive relief in Count V. on arounds of an adeauate remedv at law. Defendant Mountbatten's demurrer to Plaintiff's request for injunctive relief in Count V (breach of surety obligation), on grounds of an adequate remedy at law, is correctly premised. The obligation of a surety to the obligee on a performance bond is contractual; an adequate remedy at law exists in the form of money damages; and equitable relief is unavailable. Allegheny Plastics, rnc. v. The Stuyvesant Insurance Company, 414 Pa. 381, 200 A. 775 (1964), Where a claim on such a bond is improperly brought in equity, it will be certified to the law side of the court rather than dismissed. rd. Demurrer to Plaintiff's reQuest for iniunctive relief in Count VI. on arounds of an adeQuate remedv at law. Defendant 15 .. ... . NO. 97-2720 EQUITY TERM provided in this section, costs and reasonable attorney fees.19 In addition, it has been held that an insurance company's nonfeasance in failing to pay a claim does not amount of a violation of the act. See, e.g., Parasco v. Pacific rndem. Co., 920 F. Supp, 647 (E.D. Pa. 1996). Plaintiff is not a party that purchased or leased goods or services primarily for personal family or household purposes. Nor would Defendant's nonfeasance in failing to pay an obligee's claim on a performance bond generally rise to the level of a violation of the aforesaid act. For these reasons, Defendant Mountbatten' s demurrer to Count VI of the complaint will be sustained. ORDER OF COURT AND NOW, this 1st day of December, 1997, upon consideration of the preliminary objections to Plaintiff's complaint filed by Defendants Linden R, Gates, Jr., Lois J. Gates, Lowell R. Gates and the J .M. Fivell Company, and of the preliminary objections to Plaintiff's complaint filed by the Mountbatten Surety Company, Inc., and for the reasons stated in the accompanying opinion, it is ORDERED and DIRECTED as follows: 1. With respect to the preliminary objections filed by Defendants Linden R, Gates, Jr., Lois J. Gates, Lowell R. Gates and the J.M. Fivell Company: 10 Act of December 17, 1968, P.L. 1224, S9.2, as added and amended, 73 P.S. S201-9.2 (1997 Supp.). 17 I ~ ~ ~ , '2 , I 0 I ! - I i - ~ a I . ~- In r:-: 11; i~~ ..:J .' Ill~' ~ ~5 - 0.. (').": - , ) r" )..: , '--. .' (it- .. ~: "0'. I' .. f.:)' .:~ i .) LJ." I . , (4.'1' , " s' , 'l - ; -i. " r- :!i u (.t' V <Il . ~ ~ ..... .... I.) ..... Alii . ..... ~ :5 .... .", ~~ C .-iC ~ :i ~'ol "'~ {/) ~ ~~ al21 ~ on ~~ z en u. :s ~ ~ t5 0 . on I.) ul ~ f!5 ~ w 0 5 ~~ <.> ~ . u. {/) f3 u. {/) ~ ~ 0 ;< ~ 0 ;= ~ !i ! .. ~ ~ -' . I ~ ~ {/) ~ ~ ~ .. :~ " ~ " . 5 g? " " !! V. INSUFFICIENT SP~CIFICITY IN A PLEADING. (COUNT II) 10, In Count II of the Complaint, Plaintiff avers that Defendants have not completed certain public improvements in accordance with generally accepted standards and the plans, profiles and cross-sections submitted by Defendants. 11. The Complaint does not sufficiently specify the generally accepted standards or the plans, profiles and cross-sections submitted by Defendants, so as to enable Mountbatten to prepare a , responsive pleading. 12. The Complaint does not sufficiently specify how the public improvements deviated from the generally accepted standards and the plans, profiles and cross-sections submitted by Defendants, so as to enable Mountbatten to prepare a responsive pleading. WHEREFORE, Mountbatten respectfully requests that the Court dismiss Count II of the Complaint. VI. FAILURE TO CONFORM TO RULE OF COURT (COUNT II) 13, In Count II of the Complaint, Plaintiff avers that Defendants have not completed certain public improvements in accordance with the plans, profiles and cross-sections submitted by Defendants. 14, Copies of the plans, prof iles and cross - sections were not attached to the Complaint as required by Pa.R,C.P, 1019(h) , 3 WHEREFORE, Mountbatten respectfUlly requests that the Court dismiss Count II of the Complaint. VII. DEMURRER TO REQUEST FOR PER DIEM FINES (COUNT II) 15. In Count II of the Complaint, Plaintiff requests that the Court assess a per diem fine against Defendants, 16. Under the facts alleged, there is no cause of action for such a fine. WHEREFORE, Mountbatten respectfUlly requests that the Court strike Plaintiff's request for per diem fines. VIII. INSUFFICIENT SPECIFICITY IN A PLEADING (COUNT III) 17. In Count III of the Complaint, Plaintiff avers that Defendants have constructed narrow driveway lanes on several lots. 18. Reference is made in Count III of the Complaint to Defendants' past history in dealing with ordinance violations. 19. The Complaint does not SUfficiently specify the lots on which the narrow driveway lanes were constructed or Defendants' past history in dealing with ordinance violations, so as to enable Mountbatten to prepare a responsive pleading, WHEREFORE, Mountbatten respectfully requests that the Court dismiss Count III of the Complaint, 4