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Home My WebLink About98-031820 h ~y 4 4 u ~L N .~ 2 ~, Q V'• ~~ . - ~... ,f ,a< ~- ,. ~. 3 ;~, ~$ ~. 343 IS'q - ':fq -_ {}. '~ .. ' •a_ f?;Y 4'f `. ~. ; `. MAXINE R, ANTONICELLI, t IN T'HE CUURT Of+ CUMMUN PLEAS Plaintiff CUMDERLAND COIJN'I'ti', PENNSYLVANIA v, CIVIL AC'T'ION - F.QUI'I'Y FOXCROFT TOWNFIUUSE , ASSOCIA'T'ES, THOMAS W, , OAUGHEN, and HELL ATLANTIC - PENNSYLVANIA, INC, No, EQUITY 1998 - 3/O~ ~~~ti~r ~r Defendants , NOTICE YOU FIAVE 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 the 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, GO TO OR TELEPHONE THE OFFICE SET FORTH HELOW TO FIND OUT WHERE YOU CAN GET' LEGAL HELP, Lawyer Referral Service Court Administrator Cumberland County Courthouse Carlisle, PA 17(113 (717) 240-6200 MAXINE R, ANTUNICELh1, PlalnNff v, FOXCROFT' TOWNHOUSE ASSOCIATES, "THOMAS W, GAUGHEN, and BELL ATLANTIC - PENNSYLVANIA, INC, Defendants. : IN TWE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -EQUITY No, EQl11TY 1998 ~ 3/ SL ~"' ~OMC'L.ArNT AND NOW comes Plaintifr`; by and through hor attarney, William H. Andring, Esq„ and makes the within Complaint: Plaintiff is an adult individual residing at 5023 Lenker Street, Mechanicsburg, Pennsylvania 17055, 2, Defendant Foxcroft Townhouse Associates is a limited partnership with a registered office at 3800 Market Street, Camp Hill, Pennsylvania 1701 I. !, 3, Defendant Thomas W, Gaughen is the general partner of Foxeroft Townhouse Assaciates, 4, Defendant Ball Atlantic -Pennsylvania, Inc., is a corporation with a regular place of business at Strawberry Square, 11th Floor, 3rd and Walnut Streets, Harcisburg, Pennsylvania 17101, 5, Plaintiff is the owner of the real property known as 5023 Lenker Street, located in ` Hampden Township, Cumberland County, Pennsylvania. ~. ;, 4'W G. Detbttdant Foxerofl "townhouse Associates is the owner of a parcel of real property which adJoins the Plaintiff's property at Sp23 Lonker Street to the north and the west. 7, On or about January 2, 1997, Hampden 'Township approved u Land Duve~~~pmcnt Plan, submitted to the township by Defendant Gaughan fmd Defendant Foxerofl T'ownhousn Associates, foe a residential development to be located on the parcel of real property ref©n•ed to in the previous paragraph hereof, and to be known as "The Brambles." S, On or about April 2, 1997, the Land Development Plan fiir T'he Brambles was recorded in the Office of Recorder of Deeds of Cumberland County, 9. Defendant Bell Atlantic -Pennsylvania, Inc, is a Pennsylvania public utility providing telephone service within the Commonwealth of Penrsylvania, with a service area which includes The Brambles. 10. At the time the Land Development Plan was submitted to Hampden Township and throughout the review process by Hampden Township, each of the Defendants was aware that a new telephone substation had to be constructed by Defendant Bell Atlantic -Pennsylvania, Inc., in order to provide telephone service to The Brambles, I I. At the time the Land Development Plan was submitted to Hampden Township and during the review process by Hampden Township, the Defendants had agreed among themselves to construct a telephone substation on property owned by Defendant Gaughan or Defendant Foxcroft Townhouse Associates, or located within The Brambles, 12, The Land Development Plan, submitted to and approved by Hampden Township, did not contain any indication what-so-ever of the necessity for the new telephone substation, or the location or nature of the substation, 13, 'fhe Land Development flan, submitted to and fipproved by Hampden Township, specifically indicated that no public improvements were to be located in The Brambles, and that no ancillary structures in the nature of a telephone substation were to be located within The Brambles, 14. Defendant Bell Atlantic • Pennsylvania, Ina, selected a site or sites for the new telephone substation, located on property owned by Defendams Gaughen or Foxcroft Townhouse Associates, or located within The Brambles, and notified Defendants Gaughen and Foxcroft Townhouse Associates of the location of the selected site or sites. I5. Defendants Gaughen and Foxcroft Townhouse Associates objected to the site or sites selected by Defendant Bell Atlantic • Pennsylvania, lac:. for the telephone substation, because of specific plans by Defendants Gaughen and Foxcroft Townhouse Associates for future development on the site or sites which had been selected. 1 f,. Subsequent to the actions refereed to in the previous paragraph hereof; and at the specific request of Defendants Gaughen and Foxcroft Townhouse Associates, all of the Defendants sugreed to the construction of the telephone substation on a site located within The Brambles, and located immediately adjacent to the Plaintiff s property at 5023 Lenker Street, 17. The site referred to in the previous paragraph hereof was selected by Defendants for the economic benefit of Defendants Gaughen and Foxcroft Townhouse Associates, to avoid any economic detriment to Defendants Gaughen and Foxcroft Townhouse Associates, in disregard of the bast or preferred site for the substation, without notice to or consultation with Plaintiff, and without any consideration of the adverse impact of that site on the property owned by Plaintiff, 18. Subsequent to the actions referred to in She previous paragraph hereof, Defendants Ciuughen and Poxcroft Townhouse Associntus grunted to Detondtmt [3011 Atlantic - POnnsylvunia, Inc. easements necessay for the construction of the tel0phone substation on the situ adjacent to Plaintiffs prope+ly 19, Subsequent to the actions refen•ed to in the previous puragrapl•~ horcof, Def0ndunt Bell Atlantic -Pennsylvania, Inc. constn+cted a telephone substation on th0 site adjacent to the Plaintiffs property. ?.0. The telephone substation has substantially, appreciably and adversely affected Plaintiff and her property by sev0rely damaging the esthetics of Plaintiff's property; lessoning the value of Plaintiff's property; obstructing the view from Plaintiffs property; subjecting Plaintiff and her property to the inconvenience, annoyance and discomfort of truck traffic entering and leaving the site; subjecting Plaintiff and her property to the inconvenience, annoyance and discomfort of utility workers entering, working at, and leaving the site; and subjecting Plaintiff and her property to the inconvenience, annoyance and discomfort of constant noise emanating fm~n the equipment located on the site. COUiVT 1 21. The previous paragaphs hereof are hereby incorporated as though fully set forth herein. 22• Defendants did not apply for or receive any land development, zoning or building permits from Hampden Township prior to th0 construction of the telephone substation referred to in the previous paragraphs hereof, in violation of the applicable ordinances of Hampden Township. 23, The location of the telephone substation is in violation of the zoning ordinance of Hampden Township. 24, The use of the telephone substation is in violation of thr., Toning nrdinunce of Hampden Township. 25. Defendants have not applied for or received any exemption or finding from the Public Utility Commission which would render the provisions of the Hampden Township Zoning Ordinance inapplicable to the telephone substtdion. COUNT II 26. The previous parabrraphs hereof arc hereby incorporated as though fully sot forth herein. 27, The actions of Defendants in constructing and operating the telephone substation on the site immediately adjacent to Plaintiff's property arc intentional and unreasonable acts, which unreasonably interfere with Plaintiffs use and enjoyment of her property. 2$. The actions of Defendants have injured Plaintiff by lessening the value of Plaintiffs property. 29. The actions of Defendants have injured Plaintiff by subjecting her to inconvenience, annoyance and discomfort, COUNT III 30, The prPVious paragraphs hereof are hereby incorporated as though fiilly set forth herein. 31, The approval of the Land Development Plan for The Brambles was obtained through misrepresentation or fraud on the part of the Dofondants. WHEREFORE., Plaintiff requests that this Honorable Court direct Defendants to dismantle and remove the telophono substation and onJoin Defendants from any further violations of the ordinances of Hampden 'T'ownship pursuant to Count I hereof; direct Defendants to dismantle and remove the telephone substation, enjoin Defendants from any further violations of .the ordinances of Hampden Township and award damages to Plaintiff pursuant to Count II hereof; and invalidate and set aside the approval of the Planned Residential Development known as The Brambles pursuant to Count III horeof Respectfully submitted, /~ /) WILLIAM H, ANDRING Attorney for Plaintiff 248 Creek Road Camp Hill, PA 17011 (717)737-9847 MAXINER, ANTONICELLI, IN'I'HE COURT' OF COMMON PLEAS Plaintiff CUMBERLAND GUUNTY, PENNSYLVANIA Y• : CIVIL ACTION -EQUITY FOXGROFT TbWNHOUSE , ASSOCIATES, THOMAS W, , GAl.1GHEN, and BELL ATLANTIC - , PENNSYLVANIA, ING, No, EQUITY 1998 Defendants , VERIFICA ION I, Maxine R. Antonicelli, hereby affirm that the allegations contained in the attached document are true and correct, to the best of my knowledge or information and belief, I understand that false statements herein are made subject to the penalties of 18 Pa.C.S, §4904, relating to unsworn falsification to authorities. ~ y MAXINE R. AN'I'ONICtit.Ll, Plaintlfl' v, FOXCROF'I' TOWNHOUSE ASSOCIATES, THOMAS W. GAUGHEN, and BGL[. A'I'LAN'I'IC - PENNSYLVANIA, INC, Defendants IN TRIG COURT O(' COMMON PLEAS CUMHF,RL,AND COUN"I'Y, PENNSYhVANIA CIVIL. ACTION • EQUITY ; No. )R-3182 EQUI"fY 1998 pJ_AINTIFF';~yy,~.~E11LT0 N 1'y MATTER 4E DEFENDANT BELL ATLAN' IC-PENNSY!.VANlA.J1Y~, 32, This Paragraph contains a conclusion of law to which no responsive pleading is required, To the extent that a responsive pleading is required, it is denied that Bcll is immune from suit. 33, This Paragraph contains a conclusion of law to which no responsive pleading is required, To the extent that a responsive pleading is required, it is denied that Plaintiff did not file her suit in a timely manner, or that the defense of "watches" (sic) is applicable, 34, "this Paragraph contains a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is denied that construction of a facility by Defendant Bell is not subject to local and municipal zoning and land development ordinances. 35. This Paragraph contains a conclusion of law to which no responsive pleading is required, To the extent that a responsive pleading is required, it is denied that the construction at issuo in tho preson; mnttor is not a building, as that term is donned in the applicable statutory provisions. 36.This Paragraph contains a conclusion of law to which no responsive pleading is required. To tho extent that a responsive pleading is required, it is denied that Ucfcndant 13e11 owes no obligation to Plaintiff, as Defendant Bcll is wider an obligation to comply with the local zoning ordinance. Respoctfully submitted, / / , ~. William H. Andring Attorney for Plaintiff %~ MAXINE R, ANTONICF,IaLI, Plaintiff' v. FOXCROFT' TOWNHOUSE ASSOCIA'fl?,5, THOMAS W. OAUGHF.N, and BELL ATLANTIC - PENNSYLVANIA, INC, Def©ndants 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY No. 9R-3182 EQUITY 1998 CF.RTIF KATE OF SERVICE 1, William H. Andring, hereby certify that on this, the---/~--=-_ day of ~j/',r , 1998,1 served a copy of the attached document by causing it to be deposited in the United States Mail, first class postage prepaid, addressed as follows; Brian Yeager, Esq. LENAHAIV & DEMPSEY, P.C. Suite 400, Kane Building 16 North Washington Avenue I~ P.O. Box 234 Scranton, PA 18501-0234 Victor P. Stabile, Esq. DILWORTH PAXSON LLP 305 North Front Street Suite 403 Harrisburg, PA 17101 WILLIAM H. ANDRING ~~ MAXINE R. ANTONICELLI, Plaintiff v. FOXCROF'I' TOWNHOUSE ASSOCIATES,'fFIOMAS W. GAUGHEN, and BELL ATLANTIC - PENNSYLVANIA, INC• Defendants IN THE COURT OF COMMON PLEAS CCII\'1BERLAND COUNTY, PF,NNSYLVANIA CIVIL ACTION -EQUITY No. 98-3182 EQUITY 1998 ,ELAiLV.TIFF'S NcW R TO NEW MATTER QE 72EEltiNDAN'C BF.t L-ATLAlyTIC-P__ EIVNi i VANIA ,j~~ 32. This Paragraph contains a conclusion of law to which no respons;ve pleading is required, To the extent that a responsive pleading is required, it is denied that Bell is immune from suit. 33• This Paragraph contains a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is denied that Plaintiff did not file her suit in a timely manner, or that the defense of "watches" (sic) is applicable. 34. This Paragraph contains a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading i~ required, it is denied that construction of a facility by Defendant Bell is not subject to local and municipal zoning and land development ordinances. 35. This Paragraph contains a conclusion of law to which no Yesponsive pleading is required. To the extent that a responsive pleading is required, it is denied that the construction at Issue in the present matter is not a building, as that term is defined in the applieablo statuary provisions. 36,This Paragraph contains a conclusion of law to which no responsive pleading is roqufred. To the extent that a responsive pleading is required, it is denied that Defendant ©ell owes no obligation to Plaintiff, as Defendant Bell is under an obligation to comply with the local zoning ordinance. M MAXINE R, ANTONICELLI, Plaintiff v. FOXCROFT TOWNHOUSE ASSOCIATES,'THOMAS W. GAUGHEN, and BELL ATL,ANTiC - PENNSYLVANIA,INC. Defendants IN THE COIJRT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACT[UN -EQUITY No, 98-3182 EQUITY 1998 CERTIFICATE OF SERVICE I, William H, Andring, hereby certify that on this, the ~_ day of / 21 f ~° J __, 1998, I served a copy of the attached document by causing it to be deposited in the United States Mail, first class postage prepaid, addressed as follows: Brian Yeager, Esq. LENAHAN & DEMPSEY, P,C. Suite 400, Kane Building 116 North Washington Avenue !, P,O, Box 234 Scranton, PA 18501-0234 Victor P. Stabile, Esq, DILWORTH PAXSON LLF 305 North Front Street Suite 403 Harrisburg, PA 17101 WILLIAM H. ANDRING „r ~,r. ~;.~ ~ ,. ~. ~~ ~ , ` ~:~~ ,. 'rs , , rsa M: : ~~. <~ , : ~ ~, ~.,~ . R ,. MAXINE R. ANTONICELLI, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF :CUMBERLAND COUNTY, PENNSYLVANIA V. . . FOXCROFT TOWNSHIP ASSOCIATES, THOMAS W. . QAUQHEN AND BELL ATLANTIC- . PENNSYLVANIA, INC., DEFENDANTS : 98-3182 EQUITY TERM BEFORE BAYLEY. J. and HESS. I~ 4~4F COURT AND MOW, this 8th day of October, 1994, the preliminary obJectlons of defendant Bell Atlantic-Pennsylvania, Inc., to plaintiff's complaint, ARE DISMISSED. William Andring, Esquire ~ For Plaintiff _ C~L~ ~~.~ iv~a~a8 ~~3'~ Brian Yeager, Esquire ~~~ For Bell Atlantic-Pennsylvania, Ino. aaa ,, IIw Lanrhxu & Dempaoy, P,C, Hy: Udxn Ycngcr, Ii~yuin LU. No. JN0211 tiullc 4110 Kwm 19uiIJmN 116 North Wnvhington Avcnuv ItO. Hux 2J4 4crcnlon, I'cnnsylvnnla INJ(II.02Jd 1117) JJ6d097 MARINE R, ANTONICELLI, IN THE COURT OF COMMON PLEAS OF Plaintiff ~ CUMBERLAND COUNTY vs. ' FOXCROFT TOWNHOUSE ASSOCIATES, ~ CIVIL ACTION -EQUITY THOMAS W. GAUGHEN and BELL ATLANTIC- JURY TRIAL DEMANDED PENNSYLVANIA, INC., Defendants ' NO. 98-3182 EQUITY TERM PRAECIPE 1'O SUBSTITUTE V__ERIF1Cp1'[pN TO TFIE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly substitute the verification of Bell Atlantic-Pennsylvania, Inc., Defendant, in the above- captioned matter, for the verification of counsel supplied with Defendant's Answer and New Matter to Plaintiffs Complaint filed on or about November 9, 1998. Respectfully submitted, LENrgHAN & DE PSEY, P.C. , ~rian Yeager, Es uire )ATED: November 12, 1998 u ~- VERIFI~ CA71pN Regional I, Runae v, crown _, the ciai~ me nirertor ~ of Bell Atlantic-Pennsylvania, Inc., horeby verify ttrat I have read the foregoing Answer and New Matter and that insofar as the facts contained herein aie based upon information within my own Judgment, they are true and correct; insofar as they are based upon the expertise of Counsel, which t have relied upon in making this verification. I understand that this verification is made subject to the provisions of 18 Pa. C.S.R. §4904, pertaining to unsworn falsification to authorities. BELL ATLANTIC-PENNSYLVANIA, INC. Renee V. Brown I DATE: November S, 1498 I~ ,,~ ' c~. ~. lid ~~ ~1.~ 'tV ~I. `;. ., L 1 ' .. '~p± ~ f ~. L) Leaahan & ~ompsey, P.C. MARINE R, ANTONICELLI, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff , vs. CIVIL ACTION- EQUITY FOXCROFT TOWNHOUSE ASSOCIATES, , THOMAS W. GAUGHEN and BELL ATLANTIC- JURY TRIAL DEMANDED PENNSYLVANIA, INC., , Defendants , NO, 98-3182 EQUITY TERM Hy: lidnn YCageG I?equlm , LP. No. SNU2U Sufic 40U Kane IhillAing 116 Nun6 Washingpm Avenua ' I'.O. Bn¢ 234 Scrunlon, l'cnnsylvunia INSUI.0234 (117)346~2U97 NOTICE TO PLEAD YQU ARE HEREBY NOTIFIED TO PLEAD TO THE ALLEGATIONS CONTAINED IN THE ENCLOSED ANSVt/ER AND NEW MATTER WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR SUFFER JUDGMENT OF NON PROS. LENAHA,~1 & DEMPSEY, P.C. ~~j~ BY: -*- Brian Yeager, Esqui Attorneys for efend nt, J Bell Atlanta ennayl ania, Inc. Lcnahxu & Uempacy, I'.C Ily: Fidml 1'ungur, lisqulru LP. Nn. SN020 4ullu 41N1 Knnu IhiNAiny 116 North WnvhinNton Avmruu ItO, liux 21A 5cnuuon, I'cnnsylvnnlu INSU1~02LI (717) 746.2U')i M,4XINE R. ANTONICELLI, Plaintiff IN THE COURT QF COMMON PLEAS OF CUMBERLAND COUNTY vs. F'OXCROFT TOWNHOUSE ASSOCIATES, THOMAS W. GAUGHEN and BELL ATLANTIC- PENNSYLVANIA, INC., Defendants CIVIL ACTION -EQUITY JURY TRIAL DEMANDED N0. 98-3182 EQUITY TERM COML'S NOW, the Defendant, Bell Atlantic-Pennsylvania, Inc., by and through Its attorneys, Lenahan 81 Dempsey, P.C., by Brian Yeager, Esquiro, and in answer to the Complaint of Plaintiff, Maxine Antonicelli, states the following: 1. After reasonable investigation, Defendant, Bell Atlantic-Pennsylvania, Inc., ("Bell") is without knowledge or information sufficient to farm a belief as to the truth of this averment and the same is therefore denied and strict proof is demanded at the time of trial. 2. This averment is against a Defendant other than Bell. 3, This averment is against a Defendant other than Bell. 1 4. Admitted. 5. After reasonable investigation, Bell is without knowledge or Information suffloient to form a belief as to the truth of this averment and the same is therefore denied and strict proof is demanded at the time of trial. 6. This averment addresses a Defendant other than Bell. 7. After reasonable investigation, Defendant, Bell Atlantic-Pennsylvania, Inc,, is without knowledge or information sufficient to form a belief as to the truth of this averment and the same Is therefore denied and strict proof is demanded at the time of trial. 8. After reasonable Investigation, Defendant, Bell Atlantic-Pennsylvania, Inc., is without knowledge or information sufficient to form a belief as to the truth of this averment and the same is therefore, denied and strict proof is demanded at the time of trial, 9. Admitted. 10. After reasonable investigation, Defendant, Bell Atlantic-Pennsylvania, Inc., is without knowledge or information sufficient to form a belief as to the truth of this averment and the same is therefore denied and strict proof is demanded at the time of trial. 11, After reasonable investigation, Defendant, Bell Atlantic-Pennsylvania, Inc., is without knowledge or information sufficient to form a belief as to the truth of this averment and the same is therefore denied and strict proof is demanded at the time of trial. 12. After reasmabte investigation, Defendant, Bell AtlantiaPennsylvania, Inc., is without knowledge or information sufficient to form a belief as to the truth of this averment and the same is therefore denied and strict proof is demanded at the time of trial. 13. After reasonable investigation, Defendant, Bell Atlantic-Pennsylvania, Inc., is without 2 knowledge or information sufficient to form a beNef as to the truth of this averment and the same is therefore denied and strict proof is demanded at the time of trial. ~ 14. Admitted in part and denied in part. It is admitted that Bell selected a site for a remote terminal equipment cabinet, a LltespanCabinet, to be located on the property of Defendants, Gaughen or Foxcroft Townhouse Associates are located within The Brambles and so notified those Defendants where the LltespanCabinet was intended to be located. It is denied that it is a telephone substation but rather it Is a remote terminal equipment cabinet, a LltespanCabinet. 15. Denied. Bell subsequently determined that the selected site for the LitespanCabinef was in an area where specific plans for further development by the landowner and worked with the landowner to place the cabinet in a mutually agreeable location. 16. Denied. Ball coordinated with the landowner for the location of its LltespanCabinet on the landowner's property. 17. Denied. Ball coordinated with the landowner for the location of its LltespanCabinet for which there is no requirement to coordinate with adjacent property owners. 18. The landowner had previously granted rights to Bell. 19. Admitted In part and denied in part. It is admitted that Defendant, Bell, constructed a LltespanCabinet on a site adjacent to the Plaintiff's property. It is denied that it is a telephone substation or that the construction was neces,arily predicated on being subsequent to the actions referred to in Plaintiff's Paragraph 18 of her Complaint. 20. Denied. The LltespanCabinet is a small facility placed behind shrubbery and Is ieaigned to be self-sustaining and does not require continuous monitoring. 3 COUNTI 21. Bell repeats and realleges each of its averments In Paragraphs 1 through 2Q as if the same were repeated at length horein. 22. Uenied. By law, Bell does not have to apply for land development, zoning or building permits from municipalities. 23. Denied. Bell is a public utility which is not subject to local zoning ordinances in the placement of its facilities. 24. Denied. Bell is a public utility which is not subject to local zoning ordinances In the placement of Its facilities. 25, Denied. Bell has no responsibility to petition the Public Utility Commission for the construction of the LitespanCabinet. COUNT II 26. Bell repeats and realleges each and every answer in Paragraph 1 through 25 above as if the same were repeated at length herein. 27, Denied. Bell needed to construct a new facility because the facilities presently serving this area were nearing depletien. 28. This is a conclusion of law to which no answer is required. If an answer is required, then the same is therefore denied and strirt proof is demanded at time of trial. 29, This is a conclusion of law to which no answer is required, If an answer is required, then tho same is therefore denied and strict proof is demanded at time of trial: 4 -- ... :. COUNT III 30. Bell repeats and realleges each and every answer in Paragraph 1 through 29 above as If the same wore repeated at length herein, 31. Denied. Bell had no input Into the land development plan. WHEREFORE, Defendant, Bell Atlantic-Pennsylvania, Inc., respectfully requests that this Honorable Court dismiss Plaintiff's suit award Defendant, Bell, attorney's fees, expenses and costs In answering this suit; and award Defendant, Bell, any other relief deemed just by this Honorable Court, NEW MATTER By way of further response, Answering Defendant avers as follows: 32. Bell is immune from suit in this matter since as a public utility it is not subject to local zoning ordinances or land development ordinances. 33. Plaintiff did not file her suit in a timely manner to prevent the construction of the Litespancabinet so that she is prevented from achieving in her prayer for reNef because of watches. 34. Defendant, Bell, is a public utility in the Commonwealth of Pennsylvania and construction of a facility by Bell are not subject to local and municipal zoning and land development ordinances. 35. The Litespancabinet constructed by Bell in this suit is not a building, 36. Bell owes no obligation to Plaintiff for construction for the Litespancabinet on the property of another, WHEREFORE, Defendant, Bell Atlantic-Pennsylvania, Inc., respectfully requests that this Honorable Court dismiss Plaintiff's suit; award Defendant, Bell, attorney's fees, expenses and 5 costs in answering this quit; and award Defendant, Bell, any other reliet deemed just by thls Honorable Court, Reapectfully submitted, l.enahan 1~ Dempsey, P.C. ~.:~1 , .f . /~i 1 n i'1/~ . ~ ~Brlan Yeager, VEf21FICATION I, BRIAN YEAGER, ESQUIRE, hereby verify that I am the attorney of record for the Defendant, BeN Atlantic-Pennsylvania, Inc., that the signature of the representative for these documents cannot be obtained within the time allowed for filing this pleading; and that tho facts set forth in the foregoing Answer and New INatter are true and correct to the best of my know)edge and belief, I understand that this verification is made subject to the provisions of 18 Pa. C.S.A. §4904, pertaining to unsworn falsification to authorities. rFRTIFIGATE OF ~g_ERVICE 1. AND NAW, this ~~' day of ~4l.~, 1998, I, Brian Yeager, Esq., a member of the firm of Lenahan & Demps .C., attorneys for Defendant, Bell Atlantic- Pannsylvanla, Inc., hereby certify that I, this day, served the within Answer and New Mattor, by Unitod States Maii, postage prepaid, to the parties or attorneys of record as follows; William H. Andring, Esquire 2413 Creek Road Camp Hill, PA 17011 Thomas W. Gaughan P.O. Box 886 Camp Hill, PA 17011-0688 Foxcroft Townhouse Associates P.O. Box 886 Camp HIII, PA 17011-0888 I,ENAHAN 8 DEMPSEY, P.C. ~, , i ~, ~-. r~~ }. « l1". _ lil' - )'1 1..1: L,i6 - (1 ,. ~. X71 ... ~ I rb. I i.L , r ' _ \ II' Louahan & Denq)Xey,1',C, Ily: Ilrihtr Ycugcr, I?silulm LU,No. SXU20 tiuhu AIN) Keno IfullA6rg IIGNorrh WndduXlunAvcnuc I'.O. Ifox 2)J Scrunlon, l'enusylvuuin IX5111.02J4 (717)]4h•21N)7 MARINE R. ANTONICELLI, Plaintiff , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY vs. FOXCROFT TOWNHOUSE ASSOCIATES, THOMAS W. GAUGHEN and BELL ATLANTIC- PENNSYLVANIA, INC,, Defendants CIVIL ACTION -EQUITY JURY TRIAL DEMANDED . N0. 98-3182 EQUITY TERM NOTICE TO PLEAD TO: DEFENDANTS, FOXCROFT TOWNHOUSE ASSOCIATES AND THOMAS W, GAUGHEN YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ALLEGATIONS CONTAINED IN THE ENCLOSED 2252(d) NEW MATTER CROSSCLAIM WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR SUFFER JUDGMENT OF NON PROS. LENAHgR¢r OEMPSEYr P.C. /Brian Yeager, E uire Attorneys for 0 endant ~` Bell Atlantic•P nsylvan a, Inc. Lenahan & DempNey,P,C, By°. I)dnn Ycaqur, I!vgnlro LP. No, 5X0211 Suim 41X1 Knnc IIUiIJinN 116 Norlh Wnshingmn Avenue p,0. llox 274 Scranton, Pennsylvnnin INSUI.11214 (1171346.21)y7 MARINE R, ANTONICELLI, • IN THE COURT OF COMMON PLEAS OF CUflABERLAND COUNTY Plaintiff vs. FOXCROFT TOWNHOUSE ASSOCIATES, • THOMAS W. GAUGP~EN and BELL ATLANTIC- PENNSYLVANIA, INC., Defendants CIVIL ACTION -EQUITY JURY TRIAL DEMANDED X0.98-3182 EQUITY TERM COMES NOW, the Defendant, Bell Atlantic-Pennsylvania, Inc., by acid through its attorneys, Lenahan & Dempsey, P.C., by Brian Yeager, Esquire, and in answer to the New Matter Crossclaim of Foxcroft Townhouse Associates ("Foxcroft") and Thomas W. Gaughan ("Gaughan"), (collectively, the "Defendants"), states the following: 44. Defendant, Beil Atlantic-Pennsylvania, Inc., ("Bell") incorporates its Answer and New Matter to Plaintiff's Complaint herein, the same as if these averments were repeated at length, and denies that it is solely responsible to any injury, damage, or entitlement of Plaintiff since this is a 1 conclusion of law to which no answer Is required, but if the same needs to be answered, then it is denied and strict proof thereof Is demanded at time of time, 45, This is a conclusion of law to which no answer is required, If an answer is required, then the same is therefore denied and strict proof thereof Is demanded at the time of trial. 48. After reasonable investigation, Bell is without knowledge or information suffioient to form a belle( as to the truth of this averment and the same is therefore denied and strict proof is demanded at the time of trial. WHEREFORE, Dafendant, Bell Atlantic-Pennsylvania, Inc., respectfully requests that this Flonorable Court dismiss Plaintiff's suit; award Defendant, Bell, attorneys' tees, expenses and costs in answering this suit; dismiss the crossclaim of Defendants, Foxcroft Townhouse Associates and Thomas W Gaughen; and award Defendant, Bell, any other relief deerrred just by this Honorable Court. 47. Defendant, Bell, denies that it is liable in any way to the Plaintiff, but if, nevertheless, Bell shall be held liable to the Plaintiff in any amount, then Bell avers that Defendants, Foxcroft Townhouse Associates and Thomas W. Gaughen, are each liable over to Bell for contribution and/ar common law indemnity on the basis of the averments in the Plaintiff's Complaint with respect to the conduct of said Defendants. 48. Defendant, Bell, has filed this crossclalm against Defendants, Foxcroft Townhouse Associates and Thomas W. Gaughen, to protect its right of contribution arrd/or indemnity. WHEREFORE, Defendant, Bell Atlantic-Pennsylvania, Inc., respectfully requests that this Honorable Court dismiss Plaintiff's suik; award Defendant, Bell, attorneys' fees, expenses and 2 poets In answering this cult; dismiss the croseclalm of Defendant, Foxcroft Townhouse Associates and Thomas W Gaughon; and award Defendant, Bell, any other relief deemed Just by this Honorable Court. Respeotfully submitted, Lenahan & Dempsey, P.C, n VERIFICATION I, BRIAN YEAGER, ESQUIRE, hereby verify that I am the attorney of record for the Q®fendant, t3ell Atlantic-Pennsylvania, Inc., that the signature of the representative for these documents cannot be obtained within the time allowed for filing this pleading; and that the facts set forth in the foregoing Answer to New Matter Crossclaim of Defendants, Foxcroft Township Associates and WilNam H. Gaughan, are true and correct to the best of my knowledge and beliof, I understand that this verification is made subject to the provisions of 18 Pa. C,S.A. §4904, pertaining to unsworn falsification to authorities. DATE: December 3, 1998 GERT,~FIGe7E O)~ SE!3VIG~ AND NOW, this „~. day of _ , 1998, i, Hrian Yeager, Eaq„ a member of the firm of Lenahan & Demp ey, P.C., attorneys for Defendant, Bell Atlant~c- Pennsylvania, inc., hereby certiry that 1, this day, served the within Answer to Defendants, FoxcroR Townhouse Assoclatm~s and Thomas H. (3aughen's New Matter Crossclalm, by United States Mail, postage prepaid, to the parties or attorneys of record as follows; William H. Andnng, Esquire 248 Creek Road Camp HIII, PA 17011 Victor P. Stabile, Esquire Dilworth Paxson LLP 305 N. Front Street Suite 403 Harrisburg, PA 17101-12313 LENAHAN ~ DEMPSEY, P.C. ( ('1 {_; . V U.i~ i < ~, ~'.' - (.J; - 1 1 i ..L. L:', _ .. r . MARINE R. ANTONIOELLI, t IN THE QOURT 08' COMMON ALE#8 Plaintiff s 08 CUMBERLAND COUNTY s v. s s CIVIL ACTION - EQUITY POXOROBT TONNHOUBE A880CTATEB,s THOMAS N. (iAUAHEN, and BELL s No. 96 - 3162 Equity 1998 ATLANTIC-PENNBYLVANTA, INC. i D~f~ndanta t NATICE TO.~,~AA TOt MARINE R. ANTONICELLI BELL ATLANTIC-PENNBYLVANTA, INC. You are hereby notified to file a written response to the within New Matter and Croas-Claim within twenty (20) days of service upon you or a judgment may be entered against you. DATED; November 13, 1998 UILWORTH PARSON LLP By ~ l _ ~4v~ 'etor P. bab e, Esquire 305 North Front Street, Suite 403 Harrisburg, FA 17101 (717) '136-481'1. Attorneys for Defendants Foxcroft Townhouse Associates 'and Thomas W. Gaughan SAXINE R. 7-NTONIOEL'LI, s IN THE COURT OF COMMON BLEAB PlaintiX! : OF CUMBERLAND COUNTY i V. s s CIVYL ACTION - EQUITY FOXCROFT TONNNOUBE ABBOCIATEB,i THOMAB N. tIAU~HEN, an4 HELL s No, 98 - 3182 Equity 1998 ATLANTIC-PENNSYLVANIA, INC. s Datsndanta : ANBNER, NEN MATTER AND 2252(4) CROBB-CLAIM ON BEHALF OF FOXCR40,$T Tf~NN}tOUBE ABBOC*ATEB ancf TNOMAB N OAUC3HEN AND NOW, comes Foxcroft Townhouse Associates ("Foxcroft") and Thomas W. Gaughen ("Gaughen") (collectively, the "Defendants"), and file the following Anawer, New platter and Cross-Claim to the Complaint of Plaintiff as follows: 1, Denied in that after reasonable investigation the Defendant are without sufficient knowledge to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 2. Admitted, except that the address for Foxoroft is P.O. Box 686, Camp Hi11, PA 17001-0686. ~. Admitted. h. Admitted. 5. Denied in that after reasonable investigation the Defendants are without sufficient knowledge to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 6. Admitted that Foxcroft .is the owner of real property whi.oh adjoins Lenker street. A11 remaining averments are denied in that the Defendants are without sufficient knowledge to form a belief as to the truth oP these averments and striot proof thereof is demanded at time of trial. 7. It is admitted that on Sanuary 2, 1997, the Hampden Township Board of Commissioners approved a Final Land development Plan submitted by Foxcroft for "The Brambles," a multi-family residential development. All remaining averments are denied. a. Admitted. 9. Admitted. 10. Tt is admitted that the Defendants were aware that telephone service would have to be provided to The Brambles, and that the service provider would be Bell. A.11 remaining averments are denied in that the Defendants are without sufficient .knowledge to forma belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 11. It is admitted that the Defendants had conversations with Bell regarding the acquisition of an easement in favor of Bell for location of a remote terminal equipment cabinet in The Brambles. All remaining averments are denied in that ttte Defendants are without sufficient knowledge to Yorm a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 12. Denied in that the Land Development Plan is a dooument which speaks for itself. By way of further averment, there wns no requirement under. the Hampden Township ordinanoes that the remote terminal equipment cabinet be shown on the plan. 13. Denied in that the Land Development Plan is a document which speaks for itself. It is admitted that at note 10 of the plan there is a statement that. "no public improvements are being provided." Tt is denied that this note r.•efers to the remote terminal equipment cabinet installed by Bell. All remaining averments are denied. 14. It is admitted that Foxcroft is the owner of The Brambles, that Bell acquired an easement from Foxcroft over The Brambles property for placement oP .its remote terminal equipment cabinet, and that Bell selected the location for this cabinet and notified the Defendants of such. All remaining averments are denied. 15. Denied. 16. Defendants incorporate their response to X14 as though the same were fully set forth herein at length. All remaining averments are deni.ecl. 17. Denied. The site selection for the location of the remote terminal equipment cabinet by Bell was Bells decision based solely upon its needs and judgment as to where this cabinet. should best be placed in order to serve The Brambles and other customers. Tt is specifically denied that the cabinet was placed without any consideratiorifor Plaintiff, are it was placed on the property and screened with landscaping to minimize any potential impacts tc Plaintiff. Further, the Defendants, at no cost to Plaintiff and without. any obligation to do so, correoted a water problem Plaintiff had Por many years by gratuitously installing drainage lines and diverting water onto Defendants property. A11 remaining avermar.ie are either speci.f.i.cally denied, or denied in that the Defendants are without sufficient knowledge to farm a belief as to the truth of these averments and strict prcaf thereof is demanded at time of trial. 18. It is admitted that Foxcroft granted Bell an easement which could be used for placement of Bell's remote terminal equipment cabinet. All remaining averments are denied. in ..that the Defendants are without sufficient knowledge to form a belief as to the truth of these averments and strict proof thereof is demanded zyt time of trial. 19. It is admitted ghat Bell constructed its remote '~ terminal equipment cabinet on Defendants' property. All remaining averments are denied in that after reasonable investigation the Defendants are without sufficient. knowledge to farm a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 20. Denied in that after reasonable investigation the Defendant are without sufficient knowledge to form a belief ae to the truth of these averments and strict proof thereof is demanded at time of trial, COUNT ~ 21. Defendants incorporate their responses to ~~'s 1 through 20 as though the same ware fully sot forth herein at length. 22. It is admitted that the Defendants did not ask Eor or receive permission from Hampden Township for placement of Pell's cabinet, as this was not FoxcrofL•'s or Gaughen's duty or obligation. The remaining averments ar.e denied as legal. conclusions requiring no response, or denied in that after reasonable investigation ttte Defendants are •dithout sufficient knowledge to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 23. Denied as legal conclusions requiring no response. 24. Denied as legal conclusions recui.ring no response. 25. It is admitted that Defendants have not made any application to the PUC, as it is not the Defendants' duty or obligations to do so, if any such application was required. The remaining averments are denied as legal conclusions requiring no response. COUNT II 26. Defendants incorporate their responses to dg's 1 through 25 as though the same were fully set forth herein at length.. 27. The Defendants did not construct the cabinet. All other remaining averment are also denied. 28. Denied in that after reasonable investigation the Defendant are without sufficient knowledge to form a belief as to the truth of those averments and striat proof thereof is demanded at time of trial., 29. Denied in that after reasonable investigation the Defendant are without sufficient knowledge to form a belief as to the truth oP these averments and strict proof thereof is demanded at time of trial. COUNT III 30. Defendants incorporate their responses to fn's 1 through 29 as though the same were fully set forth herein at length. 31. Denied.l)efendants also respond that these averments are recklessly made without any, nonetheless any reasonable, foundation in feat., and constitute sanctionable conduct on the part of Plaintiff. WHEREFORE, the Defendants Foxcraft Townhouse Associates and Thomas W. Gaughan respectfully request that the Complaint of Plaintiff be dismissed, that costs and attorneys foes be awarded to Defendants to defend this action, and for such other and further relief as this court deems just and appropriate. I4EW MATTER 32. Defendants incorporate their responses to ~~'s 1 through 31 as though the same were fully set forth herein at length. 33. Plaintiff's Complaint fails to state any causes of aOtiOn. 34. The placement of the equipment cabinet by Bell is oxempt from any local or municipal zoning and land development regulation, as He11 is a public utility. 35. The Uefendants Foxcroft and Gaughen owe no duty to Plaintiff with respect to Bell's equipment cabinet. 36. The equipment cabinet is the exclusive property of Hell, and therefore, the relief sought by Plaintiff may not be requested against the Defendants Foxcroft and Gaughen. 37. Plaintiff cannot state any action fox• private nuicsance against. Foxcroft and Gaughen, as the acts complained of do not demonstrate any physical presence of Foxcroft or Gaughen an the Plaintiff's property. 38. Any remedies Plaintiff may have under the Municipalities Planning Cede may not be had against Foxcroft or Gaughen, as neither of these defendants have committed any violations of any applicable zoning or land development ordinances. 39. Plaintiff does not have standing to sue Foxcroft; or Gaughen. 40. Plaintiff can state no claim for damages. 41. count III of Plaintiff's Complaint, which attempts to allege fraud in the approval of the Land Development Plan, is without any factual basis whatsoever and as such entitles the Defendants Foxcroft and Gaughen to an award of attorneys fees. 42. Plaintiff's failure to not timely barre her nation due to laohes. 43. Any claim for equitable relief should be denied as the Plaintiff does not have clean hands, since her home is illegally within the required net back area adjacent to the cabinet for which she complains, and any noise for which she complains is no greater than the noise and annoyanoe generated by the business aeti.vities being conducted from the Plaintiff's property. 2252 Id) NEN MATT~$_Qg088CLAIM AQAINBT DEFENDANT ALL ATLANTIC-~iNe]~VANIA. INC. I 44. The Defendants Foxcroft and Gaughen, without admitting the truth thereof, incorporate all well-pleaded averments and causes of nation stated by Plaintiff in her Complaint, and assert that if the Plaintiff has sustained any injury or damages, or is entitled to any form of relief, then any such injury, damage, or entitlement is solely the responsibility of the Defendant Be11 ahd/or its agents, servants, workmen and/or employees. j 45. Defendants Foxcroft and Gaughen aver that if it should be judicially determined that the Plaintiff is entitled I to recover against the Defendants Foxcroft or Gaughen an any of the causes of action asserted, any such liability on the part of b'oxcroft or Gaughen being expressly denied, then the Defendants Foxcroft and Gaughen aver that the Defendant Be11 is solely liable to Plaintiff, liable over to the Defendants Foxortaft and Gaughan for contribution and/or indemnity, or jointly and severally liable with the Defendants on the Plaintiffs action. 46. 7`he Defendants Foxcroft and Gaugheii have filed this Dross-claim against the Defendant Bell to protect their rights of contribution and/or indemnity. WHEI2EFURE, the Defendants Foxcroft Townhouse Associates and Thomas W. Gaughan respectfully request that the Complaint of Plaintiff bo dismissed, that costs and attorneys fees be awarded to Defendants to defend this action, and for such other and further relief as this court deems just and appropriate. Alternatively, should i.t. be determined that the Plaintiff is entitled to relief on her action, than it i.s requested that the Defendant Bell be found solely liable to Plaintiff, liable over to the Defendants Foxcroft and Gaughan for contribution and/or indemnity, or jointly and severally liable with the Defendants Foxcroft and Gaughan on the Plaintiffs action, and far such other and further relief as this Court deems just and appropriate. Rasp ctfull 'submitted, ~/ .._. ictor P. Esquire Dilworth Paxson LLP 305 N. Front Street, Suite 403 Harrisburg, PA 17101 (717) 236-4812 DATED: November 12, 1998 Nov-12-9Ei 03;2~JP tJ1~KK hlur•r'Isi:>ur~J "!1'7-Z36-7Fi11~ P.02 ~gjFICATXpN 5ubjnct to the penalties for falsification to authorities prameribed by 1A ~a.c.s. g4~oa, I hereby certify that I am the general partner of Foxorof.t Townhouse Associates, and am authorized to make this vorification on its behalf, and further, that the facts sat Porth in the foregoing are true and oorraot to the bast of my personal knoWlsdge, information and belief. Date; Foxcroft Townhouse Assool . , ~c~amTx•rnnmF nxr Y hereby certify that I have this / 3 day of November served a 'true and correot copy of the foregoing upon the following by first-•class mail, pastage prepaid: William H. Andring, Esquire 248 Creek Road Camp Hill, PA 17011 Brian Yeager, Esquire Lenahan & Dempsey, P.C. Suite 400 Kann Bu~.lding 116 North Washington Avenue ' P.O. Box 234 Scranton, PA 18501-0234 ~~~~"(/' ctar P. e ,, i ~. n n, - . ~_,. u: ~ ,,._ ' , ,. ,' i, ` _ ~ n err rii _ u;u.. _ ,. _ ~ i=' u. rc '`i . i ,r -- l.enghgn Re Dempaoy, P.C. fly. Ilrlnn Yongcr, I'.equlra LD, Nu, 3X0411 Sullo 4IX1 Kuna Iluliding 116 Nrolh WaxhingUm Avcuua I'.O. Uox 2)4 Scrmuun, I'annnylvmJn 1X301.11214 (11 A 14fi~20')7 MARINE R. ANTONICELLI, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY vs. FOXCROF'T TOWNHOUSE ASSOCIATES, THOMAS W, GAUGHEN and BELL ATLANTIC- PENNSYLVANIA, INC„ Defendants CIVIL ACTION -EQUITY JURY TRIAL DEMANDED NO.98-3182 EQUITY TERM PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY; Kindly enter the appearance of Lenahan & Dempsoy, P.C. on behalf of Defendant Bell Atlantic-Pennsylvania, Ina, only in the above-captioned matter. LENAHAN & DEMPSEY, P.C. By; an `r'ea ~ Dated: ,luly 7, 1998 •.N' Lenahan & Dompscy, P,C. liy'. firlnn 1'engcr, I!vqulro ' LU. Nn. 38020 Sulrc4ggKwialiulWing ~ ' Ilfi Nnrlh Wnvhington Avunuc CO. Bnx 27A Sarnnlon, Iknnvylvnnin 18301.0274 (71717Afi•21197 MARINE R. ANTONICELLt, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff vs, CIVIL ACTION -EQUITY FOXCROFT TOWNHOUSE ASSOCIATES, THOMAS W. GAUGHEN and BELL, ATLANTIC- JURY TRIAL DEMANDED PENNSYLVANIA, INC., Defendants , NO.98-3182 EQUITY TERM I~QTI~.€J4Q~4 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ALLEGATIONS CONTAINED IN THE ENCLOSED PRi:LIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR SUFFER JUDGMENT OF NON PROS. LENAHAtj~~B~ DEMPS Y, P.C. BY: (J~1I ~~ ~ ~~- _~- j Brian Yeager, squire ' Attorneys for efenda t, /Boll Atlantic- ennsyly nla, Ina Lenahan & Dempsey,l'.C' Ily: Bdnn Ycugcr, Cvqulrc LU. No, SN1121! SuI1c4IN1 Kunc ILdlJing 116 Nnrtl! Wavhmglnn Avcnuc I'.U. Box 2I4 Scrwum4l'mwsylvnnln Ig501.02)4 (717)14~2r>9~ MAXINE R. ANTONICELLI, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff vs. FOXCROFT TOWNHOUSE ASSOCIATES, THOMAS W. GAUGhiEN and BELL ATLANTIC- PENNSYLVANIA, INC., CIVIL ACTION -EQUITY JURY TRIAL DEMANDED Defendants N0.98-3182 EQUITY TERM PRELIMINARY OAJECTIONS O& DEFENDANT, SELL ATLANTIC-PENNSYLVANIA, INC., TO PLAINTIB'F'S COMPLAINT COMES NOW, the Defendant, Bell. Atlantic-Pennsylvania, Inc.,("Be.ll.") and files the following Preliminary Objections to the complaint of the Plaintiff, Maxine R. Antonicelli: OF 1. Bell is a Pennsylvania public utility subject to the Public Utility Commission ("PUC"). ?, Tf any public utility corporation i.s constructing a building, or an extension thereof, that public utility corporation may petition the Pennsylvania Public Util.i.ty Commission for a public hoaring, and if the POG decides that the building is reasonably necessary for. the convenience or welfare of: the public, then C.he Municipali.ty's Planning Code shall not apply t.o Chat building. See 53 P.S. 10619. 3. In her Complaint, Pl.ainti,ff. is objecting to construction that Boll is performing adjacent to Plaintiff's property at 5023 Lenker Street, Mechanicsburg, Pennsylvania 17055.. 9. Bell is not ronst.ructing a building adjacent to Ilaintiff's property, but is rather constructing an equipment cabinet that will be 6' tall, 3' wide and 9' long and will be situated on a concrete pad 19' wide by 20' long. 5. In constructing the equipment cabinet, Be:17. is free from the requirements of the. Municipalities Planning Code, and Be11 does not have to first obtain PUC permission to construct a structure such as the equipment cabinets, because this structure is not a building. 6. Because only the PUC has jurisdiction over the building activi.t:ies of Bell, Plaintiff cannot bring suit against Bell in this Honorable Court, but rather must petit;ion the PUC for any probloms it has with Bell's construction of the structu~ire adjacent to Plaintiff's property. II! ~EREFpRE, Defendant, Bell, respectfully reyuesC-s that this Honorable Court ciismiss this action against Bell; award Bell the fees, costs and expenses cf malnta:ining this action; and award Bell any relief ,deemed just and honorable by this Court. FAILURE 1. Bell is a public utility subject to the Pennsylvania Public Utility Commission ("PUC"), 'l, Plaintiff has brought: this action against Be11 allaying that Ball is liable in constructing a structure adjacant to Plaintiff's property. 3. The law in this matter is that Plaintiff must bring an action against Be11 before the PUC and not before this Court. Defendant, Bell, respectfully requests that this Honorable Court dismiss this action against Be:Ll; award Bell the fees, costs and expenses of maintaining this action; and award Boll any relief deemed just and honorable by this Court. BECAUSE OF 1. Plaintiff alleges that Bell is a public utility, 2. Plaintiff alleges that Bell is subject to the Public Utility Commission. 3, Tf Bell is subject to the Public Utility Commission,. then Ball cannot also be subject to this Fonorable Court in this matter, and Plaintiff's pleading does not set forth a cause of action or claim upon which relief. can be granted. WHEREFORE, Defendant, Bell, respectfully requests that this Honorable Court dismiss this action against Bell; award Bell the fees., costs and expenses of maintaining this action; and award Bell any relief deemed just and honorable by this Court. Reap~otfully aub fitted, Lenai~~n~ & Dem~~, P.~. rFRTIFIGgTE OFOF~ AND NOW, this _~ day of , 1998, I, 6rian Yeager, Esq„ a member of the firm of Lenahan & Dempsey, P,C attorneys for Defendant, Bell Atlantlc- Pennsylvania, Inc., hereby certify that t, this day, ed the within Preliminary ObJectlons, by United States Mail, postage prepaid, to the parties or attorneys of record as follows: William H. Harding, Esquire 248 Creek Road Camp Hill, PA 17011 Thomas W. Gaughan 3800 Market Street Camp HIII, PA 17011 I"oxcroft Townhouse Associates 3800 Market Street Camp Hlll, PA 17011 LENAHAN & DEMPSEY, P.C. ',; , ,~ ~ ~rian Yeager, Es ire ~ ,. ~ i ~~ ~;~ .. . 1; ,~~i , ~~ '~ i ~ [ ~ t~ ~() Cr ~ ~r. 1 ,~; (:.> CJi 4J PRAECIPE FOR LIS7'ING_CASF. FOR ARGUNENT (Nast be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUM9ERLANU COUNTY: Please List: the within matter fur. the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) MAXINE R. ANTONICELLI, PLAINTIFF' V. FUXCROFT TUWNSHTP ASSOCIATES, THOMAS W. GAUGHF.N AND BELL ATLAli~~tiff ) PENNSXLVANII~ INC., llefendanis (Defendant) No. 98 - L`QUI~'31vi1 3].82 19 1. State matter to be argued (i.e., plaintiff°s rrotion for new trial, defendant's demurer to complaint, etc.): Defendant, Bell Atlantic-Permsylvania, Int.'s Pr.eiiminary Objections 2. Identify camsel who will argue case: (a) for plaintiff; William H. Harding, Esquire Addt.~s: 248 Creek Road Camp Hill, PA ].8711 (b) for defendant: Brian Yoayer, Esy. Address: P.O. Sox 234 Scranton, PA 18501-0234 3. I will notify all. parties in writing within two days that this case has been Listod for acg~.ment. 4. Argument Court Date: Dated: 8/12/98 Att~rney for Defend~nt, Bel Atlantic-Pa., ~~? ;. t ( . Lt ~ , ( )~ . 1 ~ u. ~ ~` ~ ~ Ui 1 ~4i bra ~Itt L ~; .. _,. ~~ - i .. E ~ .~ MAXINE R, AN'fONICELLI, Plaintiff v. FOXCROFT'fOWNHOUSE ASSOCIATES, THOMAS W, GAllGHEN, and BELL ATLANTIC - PENNSYLVANIA, INC. Defendants : fN 'fHE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL AC'f10N -EQUITY : No. 98-3182 EQUITY 1998 PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS OF DEFENDANT I. LACK OF JURISDICT/ON 1, Admitted. 2, This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, the provisions of Section 619 of the Pennsylvania Municipalities Planning Code speak for themselves, 3. Admitted, 4. This paragraph contains a conclusion of law to which no responsive pleading is required. 'fo the extent that a responsive pleading is required, it is specifically denied thaf the construction at issue consists of an "equipment cabinet", it is specifically denied that the construction does not constitute a building, and it is specifically averred that the construction at issue is a building, as that term is used in Section 619 of the Pennsylvania Municipalities Planning Code. ,., S. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is specifically denied that the construction at issue consists ofan "equipmont cabinet", it is specifically denied that the construction does not constitute a building, and it is specifically averred that the constn~ction at issue is a building, as that term is used in Section 619 of the Pennsylvania Municipalities Planning Code, 6. 'T'his paragraph comains a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is specifically evcrred that the construction at issue is a building, as that term is used in Section 619 of the Pennsylvania Municipalities Planning Code, and is subject to the provisions of the 'Coning Ordinance of Hampden Township, and thus to the Jurisdiction of this Court. WHEREFORE, Plaintiff respectfully requests that these preliminary objections be dismissed. II. FAILURE TO CONFORM TO LAW 1, Admitted. 2. Denied, This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is specifically averred that the complaint in the present action speaks for itself, and is not as represented by Defendant, 3. This paragraph contains a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is specifically averred that the construction at issue is a building, as that term is used in Section 619 of the Pennsylvania Municipalities Planning Code, and is subject to the provisions of the Zoning Ordinance of Hampclon'fowaship, and thus to Iha,iurisdiction of this Court. WHE!H~:POKE;, Plaintiff rosixetfuily requests ihtU these preliminary objeodons ba dismissed. III. LEGAL IIVSUFFICIEIYCY 1. Admitted. 2. Admitted 3, "this paragraph contains a conclusion of law to which no responsive pleading is required. 'fo the extent that a responsive pleading is required, it is specifically averred that the construction at issue is a building, as that term is used in Section 619 of the Pennsylvania )w1unicipalities Planning Code, and is subject to the provisions of the 7.,oning Ordinance of Hampden "township, and thus to the jurisdiction of this Cowl. WHEREFORE, Plaintiffrespectfully requests that these preliminary objections be dismissed.. Respectfully submitted, ,.~' ILLIAM NDRMG Attorney for Plaintiff / 248 Creek Road Camp Hill, PA 17011 (917)737-9847 ,. , MAXME R. ANT'ONICELLh IN THE COURT' OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - EQU-T'Y FOXCRUFT TOWNHOUSE , ASSOCIATES,'PHOMAS W, , OAUGHF.N, and BELL A'T'LAN'TIC - , PENNSYLVANIA, INC, No. 98-3182 E(1UI'I'Y 1996 Defendants , CERT[FICA'I'E OF SERVICE 1, William H, Andring, hereby certify that on this, the ~~ day of ______, 1998,1 served a copy of the attached document by causing it to be deposited in the United States Mail, first class postage prepaid, addressed as follows: B-tian Yeager, Esq. [.ENAHAN & DEMPSEY, P.C. Suite 400, Kane Building 116 North Washington Avenue - P.O, Box 234 ~ ' Scranton, PA 18501.0234 ' Thomas W. Gaughen 3800 Markel Street Camp Hill, PA 17011 Foxcroft'I'ownhouse Associates 3800 Market Street Camp Hlll, PA 1701 ~~~GL-°s~,/ - WILLIAM H. ANDRING .~. (,, r.. E 4 f. l ~ ~.. ' 1.)i r~ :,Y i ' - L 1 .1 V a.7. .. - - ~. i i Lenwhun & Dempsoy, P.G. Ily~. Ilrinn Yungnr, I?nqulrc LU. Nn, 5X11211 5uUc4110 F:mw HullAinX 116NonhWtiahinpumAvonuu ' I',U. Ilox 2l4 4crwtlnn, I'cuneylvnnln IXSIII.02J4 (7171 ~q6-2lN)1 pUG 0 6 ~ -_, MAXINE R. ANTONICELLI, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff vs. CIVIL ACTION -EQUITY FOXCROFT TOWNHOUSE ASSOCIATES, TWUMAS W. GAUGHEN and BELL ATLANTIC- JURY TRIAL DEMANDED PENNSYLVANIA, INC., ' ,(1 ~A1 ~~ ~ ~~ 4~~ ,_~ Defendants ~\~ ~f ,i~ ~ ~'} NO. 98-3182 EQUITY TERM , I. BRIEF IN SUPPORT OF j - PRELIMINARY OBJECTIONS OE DEFENDANT, BELL ATLANTIC-PENNSYLVANIALTNC „ TO PLAYNTIFF'S COMPLAINT I. STATEMENT OF THE FACTS .Plaintiff is the owner of real property known as 5l3 Lenker Street, located in Hampden Township, Cumberland County, Pennsylvania. In the Summer of 7.997, the Defendant, Bell Atlantic-Pennsylvania, Inc., (her.einafter "Bell") began construction f.or the structure adjacent to Plaint.if.f's property. '.Phis structure was an equipment. cabinet with dimensions of 6' hiyh; 3' wide; and 9' .long. This equipment cabinet would be located on a 1~' xl0' concrete slab. .Also on this slab would be another structure called an interface cabinet which would be 38" hiyh by 10" w:Lde by 4' long, B`lna:L:Ly, Cher.e would be on the concrete slab a power. pedestal. whlrh wrnt.ld be a 12" x 12" strucCUre eonCaa.ni.ng a power monitor, Bea.la and P1~-ranCitf, and also P.l.alnt:i.ff's counsol, exchanged correspondonre about Cho conatructi.on of th.ls sCructuro, Boll expaai.nod i.t was not, i.n v.tolat:ion of: any Hampden 'Cownshi.p Ordlnaru;o and tttaC 1. t: needed t.o cons tr.uct, the equipmont cal>.i.net t:o provi.de Cho n ecessary communlcataons f.or land development adjacent to Plaintiff' s property, as well as Yor the surrounding aocalo. Bell then went fo.r.war.d with the construction of the' equipment cabinet adjacent to the Pla]ntiff's property, Plaintiff has now brought this Complaint: alleging, inter. a1ia, that Be.l7. did not receive any land development, zoning or. building permit from Hampden Township; that Bo 1.1 is 1n violation of the 7oni.ng Ordinance of Hampden Township; that the construction and operation of the equipment cabinet adjacent to Plaintiff's property unreasonabJ.y interfered with Plaintiff's use and enjoyment: of that property; and that the approval of the land development plan for the proporty adjacent Co Plaintiff was obtained through misrepresentation ar fraud, In reply to these allegations, Bell has prepared and submitted Preliminary Objections in the nature of lack of jurisdiction by this Court; failure of the Complalht to conform to l.awt and the legal insufficiency of. Plaintiff's Compla.l.nt, These Preliminary Objections are now before this flonorable Court for decision, Y38UE3 l., Does this Court have jurisdiction over. the subject matter of this action which !s violation of local. zoning and land development ordinance by Be+:I,:I wh:Lc:h l;i a 1:,ub11c ut:ia.ity'1 Suggested Ans;wcr.: No, 2. Does Compla:Lnt conform w:iCh the l.aw which says khat the Pennsy.lveua.iet Publ.tc l)t.l.tity comm:Lsslon ha:a exc:Cus.i.ve jur.lsdicLion of: matters r.elatod to puk~~alc uCl Litlc,s in the Commonwealth? Suggested Answer; No, 3, f.s P1a].ntif.f:'s Compaaint. .legally suf.fi.c.lent :Ln setting forth a cause of action or c:laa.m upon wharh r.eiief Gran be granted when Plaintiff alleges that Bell I.s a publ]r., ut:i.lity subject to the Public Utility Commis i.on'? Suygested Answer.: Dlo, ARGUMENT The .law is very c.•l.ear in this matter, fn bu~uesne Light Cornpan"v v._ Monroeville Boro~~h, 29B A.2d 7.52, 256, 4~9 Pa. 573, 5B0 (1972), the Pennsylvania Supreme Court summarized a long line of.` cases in stating: "This Court has consistently held, however, that the Public Utilities Comtnission has exclusive, regulatory jurisdi,ctJ.on over the i.mp.lementation of publi.,; ut.i.lit.y facil:i.ties." Quoted i.rt Commonwealth of Penns ly vania v. Delaware and Fludson Rail.wa~Comaa~, 339 A.2d '155, ]57 19 Pa, Cmwlth. 59, 61 (1975). This Cout:t then went on t.o say that t;he clear intent of Duquesne, Supra, and the many cases cited therein is to uphold Lhe proppsit.ion that public utilities ar.a to be regulated exclusively by an agency of the Commonwealth with state-wi.de jurisdiction rather than by a myriad of local governments with different regu.l,ations. ld. TherA is no doubt, based on this law, that the Pennsylvania Public Utility Commission ("PUC") has exclusive jur:isd~cti.on over Be11 in the building of any faci]iti.es by Beli, There is, however, one requirement which must be met by utilities when constructing buildings. This is contained in the Pennsylvania Municipal,a.ticet planr~a.ny Coclo ("MPC"), Section 619(53 S. 410619). 'T'his seet::Lon oxonapts from the requlrements of Che MPG any exist:Lng or proposed bu.l.ldang used by a put:~l.:Lc utl.l.ity corporation 1.f t:he corooratl.on should petition t:ho PUC and after a puba.i.c hear.ing tFrat PUC should decide that the bua..ld.Lng :Ls reasonably necessary for the convenience and welfare of the public. 'There are some issues bore. 'i'he first :Lssue .is whether or not Che requirement in Section 10619 app.lles Co a subdivision or land devea.opment ordinance. Z'ha.s matter has been resolved in Newton Township v. Philadelphia El.ectra.c Company, 599 L1, 2d ©39, 190 Pa, Cmwlth. 635 (1991.). In that matter, the Commonwea.lt-h Court found that any .land development ordinance was the same as the zoning ordinance and would not be applicable Co public uti.li'ti.es. The other issue is that Section 619 applies to buildings. If the structure being built is not a building, then there is no requirement f.or the public utility Y.o petition the PUC in order to meet the requirements of Section 619. When a structure is being constructed which is not a building, this structure is still exempt from local zoning and land development ordinances. This matter has been decided in Commonwealth v. Delaware and Hudson Railway Com an which stated that to the extent that Section 619 of the Penrrsy.lvania Municipalities Code gives any authority to local governinents to regulate public utilities, that authority must be strictly limited to the express statutory language. Id., Page 157, 61. This Court then went on to hold that the word building d.id not include railroad tracks and does not include transmission lines of power companies. Td. finally, this Court found that a public utility does not have to petition the PUC as a requirement to be exempt from the MPC, unless the public utility is constructing a building. Id., P. 156, 60. Obviously, Plaintiff must then show that Beil is constructing a building adjacent to her property on Lender Road in Flampden Township. Obviously Bell is not constructing a building, but is rather constructing a medium sized equipment cabinet that contains wiring and other el.ectroni.c gear to perform its function as a public utility. This is not a building, as can be shown by 'the cases in Pennsylvania that define a bu.i.lding. For example, in West Whittled Township v. Exton Materials, Inc., 319 A.2d 43, 96, 11 Pa. Cmwlth. 974, 977 (1979), the Commonwealth Court approved that a structure was not a building that. had interior surfaces not normally accessible to human use, such as gas tanks, grain elevators, coal bunkers or similar structures. 1n Torak v. Board of Adjustment of limper Merion Township, 277 A.2d 521, 523 ?. Pa. Cmwlth. 48, 50, the Court interpreted a porch as being a structure and not a building because it was not enclosed. In the MPC itself, the term structure is defined, but the term building is not. 53 Y.S. §10107, However, the term buildings is used eaetensively throughout this section of definition, (e.g. ].and ddvelopment, development plan), which plainly shows that in t:he mind of the legislature, a structure is very different from a building. Finally, Plaintiff alleges that Bell is constructing a telephone substation, but Plaintiff does not aver that this telephone substation is a building. Bell i.s not constructing a building adjacent to Plaintiff's property on L~enker Road in Hampden Township. Bell is constructing an equipment. cabinet, which is a structure to fulfill its requirements as a public utility. '!'here i.s no need for Be11 to petition the PUC for it to bo exempt from the MP0 when constructing this equipment cabinet. Only the PUC has jurisd.tcti.on over this matter and Plaintiff has the ability to pc~ClCaon to the PUC for .relief. [br all of .the above reasons, Defendant, Bell Atlantic-Pennsylvania, Ina., respectfully requests that this Honorable Court dismiss it from this action. RAapeatfully aubmil:tad, Lane(l~an 6 Dampsay, P. C . CERTIFICATE OF sERVrrE AND NOW, this ~~ day of _, 1998, I, Brian Yeager, Eaq„ a member of the firm of Lenahan & Dempsey, P. ', attorneys for Defendant, Bell Atlantlc• Pennsylvania, Inc., hereby certify that I, this d ,served the within Brief in Support of Preliminary Objections, by United States Mail, postage prepaid, to the parties or attorneys at record as follows: William H. Harding, Esquire 248 Creek Road Camp Hill, PA 17011 Thomas W. Gaughen 3800 Market Street Camp Hill, PA 17011 Foxcroft Townhouse Associates 3800 Market Street Camp Hill, PA 17011 e LENAHAN & DEMPSEY, P.C. M i y d v y ~y,M" ~ q~, ~~ . ~. R~ ~: ' ,+ , :~~~~ k y~ . ~y ' a: 0. - ~ 4Y `~ d I L y~ 1~ 1 r Y ~~ L ~ ~. + y y` y, ti,~ i '~ {~ MAXINE R. ANT'ONICF;LLI, Plaintiff v. FOXCP.UFT TOWNHOUSE ASSOCIATES,'1'HOMAS W. GAUGHEN, and BELL ATLANTIC - PENNSYL.VANIA, INC. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL AC"TION -EQUITY No. 98-3182 EQUITY 1998 PLAINTIFF'S BIgIEE..UN PRELIMINARY QBJECTIONS 4E DEFENDANT, BELL ATLANTIC-PENNSYLVANIA,.jNC. I. STATEMF,NT OF THE CASE The Plaintiff in the present action owns, and resides at, a property at 5023 Lenker Street, Hampden Township, Cumberland County. Defendants Foxcrott Townhouse Associates and Thomas W. Gaughen own a parcel of property which adjoins the property of Plaintiff, and upon which a residential development known as "The Brambles" is being constructed, pursuant to a land development plan approved by Hampden Township. In connection with developing the property, Defendants Gaughen and Foxcroft agreed with Defendant Bell to permit the construction of a telephone substation on property owned by Foxcroft, and directly adjacent to Plaintiff s home. The telephone substation had not been shown on tha land development plan approved by Hampden Township, and no township coning approvals wore obtained prior to the oanstruotion of the subsintien, "I"he location of the telephone substation is in violation of various siting and use previsions of the Hampden'I'ownshiploning Ordinance. T'he present action has bwn brought tc~ enforce the provisions ofthe Hampden'fownship "Zoning Ordinturce, pursuant to Section G17 of the Pennsylvania Municipalities Planning Code, Act No. 247 of 1968, 53 I'.S• § 10617• 'fhc Complaint seeks fhe removal of the telephone substation, injunctive relief against further violations of the zoning ordinance, and the invalidation of the approval of the land development plan for the Brambles. The Complaint also contains a count seeking monetary damages, based in nuisance, IL ARGUMENT Defendant Bell has filed preliminary objections to the Complaint of Plaintiff, contending that this Court lacks jurisdiction over the person of the Defendant (Bell); that the Complaint fails to conform to law; and that the Complaint is legally insufficient. In its brief, Defendant Bell has apparently altered its position regarding the first objection, arguing instead that this Court lacks jurisdiction over the subject matter of the Complaint. In fact, all of the objections raised by Defendant Bell are identical in basis, contending that the Zoning Ordinance of Hampden Township is inapplicable to the construction of the telephone substation, and therefore no cause of action exists before this Court. /'" ~ The applicable law appears at Section 619 of the M.P.~ 53 P.S. § 10619, ~~,~r~~ ~~ ~~.i ~t~ ' <<` Exemptions -This article shall not apply to any existing or proposed t ~ ~ ~' bum jhding, or exte,Linn rhP,•~~f, used or to be used by a public utility corporation, if C/~ ~~ tt (1-'~' upon petition of ttte corporation, the Pennsylvania Public 1Jtility Commission I t ~~ tit' 1 F~` ' ~ ~ ~" ~• ~~, ~. `, ,,, ti~ r t "'•. may` shall, allot public hearing, decide that the present or proposed situation of the building in question is reasonably necussstry tilt the convenicnou or welfare ol'tho public; it Shull he the responsibility oi'the Pennsylvania Public Utility Commission to ensure that both the corporation and tlw nnuticipality in which the building or proposed building is located have notice ol'tlw hearing and arc granted an opportunity to appear, present witnesses, cross-examine wihtesses presented by other parties and otherwise exercise the rights of a party to the proceedings. Section 619 grants an express power to a municipality to tone with respect to the "buildings' of a public utility company. However, this express power does not extend to any structure other than a "building", and will not apply to a building if the public utility pursues the petition procedure delineated in Section 619 and obtains the approval of the Public Utility Commission. Suuth Coventry Township v. Philudelphiu Electric Compu~iv, 94 Pa. (',ommonwealth Ct, 289, S04 A.2d 36R (1986). In the present case, Defendant I3e11 has not petitioned the Public Utility Commission, or obtained the approval of the Commission, pursuant to Section 619. There is no definition of "building" contained in the Municipalities Planning Code, the Public Utility Code, or the Statutory Construction Act. Neither is there any reported court case indicating whether a telephone substation, such as the one at issue in the present case, constitutes ~' a "building," However, there are a number of cases, addressing both Section 6l9 and other statutory provisions, which consider the meaning of the term "building." !n Newtotvn 7nwnship v. Phi/adelphia E'/rctrlc Canparw, 140 Pa, Commonwealth Ct. 635, 594 A,2d 834 (1991), and O'Connor v. Penncv'vnnia Public Utility Commission, 136 Pa. Commonwealth CL 119, 582 A.2d 427 (] 990), electrical substations were considered to be "buildings" for purposes of Section 619, In Del-Aware v. Yenntv/vaniu public Utility Cornmiscion, 99 Pa, Commonwealth Ct. 634, S13 A,2d 593 (1986), a "pumphouse"was considered as a building for purposes of Section 619. Other cases have held that electrical transmission lines, railroad tracks, siron towers, and water towers are not buildings for purposes of Section 619. Uayuesne Light Comparrv v. Monroeville Bmottglr, 449 Pa. 573, 298 A.2d 252 (1972); Cornrnonwealth v, f)elarvare & Nadtivm Railway Company, 19 Pa. Commonwealth Ct. 59, 339 A,2d 155 (1975); South C.'nventrv Township v. Philadelphia Electric Comparw, 94 Pa. Commomvealth Ct. 289, 504 A.2d 3ti8 (1986); Heinize! v. Zoning Hearing Boarcl o/'Millcreek 'Township, I 1 I Pa. Commonwealth Ct. 263, 533 A.2d 832 (1987). Other Pennsylvania cases interpreting the meaning of the term "building" include Connonwealth v. McCgr~, 209 Pa. Superior Ct. 399, 228 A.2d 43 (1967), holding that a "telephone booth" is a building; Korkonikitas v..~) Uegherrv Cenernl Hospital, 433 Pa. 30, 249 A.2d 318 (1969), holding that a small "parking attendant shelter" is a building; Cornrnonwealth ex rel. Foster v. Ashe, Warden, 124 Pa. Superior Ct. 533, 189 A. 804 (1937), holding that a "corn house" is a building; and Appeal q/fligman, 110 Pa. Cornrnonwealth Ct. 539, 533 A.2d 778 (1987), holding that "air space" falls within the definition ofa "building." This latter case cites the definition of building appearing in Webster's Third New lntemational Dictionary: "`Building' is defined as `a constructed edifice designed to stand more or less permanently, covering a space of land, usually covered by a rciof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure."' /d at 781. [n the present case, the Plaintiff believes that the telephone substation at issue falls within the meaning of the word "building", as used in Section 619, and has specifically pled that the telephone substation is subject to the provisions of the Iiampdmr "township 'Coning Ordinance. bofondant doll avors that the substation is not encompassed within the moaning of the word "building," Obviously, this Court will have to resolve this issue, but can only do so upon a factual record made before the Court. "I'hc t•ecard at present is devoid of nny F+cts (such as size, shape, use, construction method, photographs) which would allow for the disposition of this issue. While it tnay well be possible for the Court to resolve this case on the basis of materials produced in discovery, or on the basis of a stipulated record, the case is clearly not now ripe far decision. Another alternative would be to stay the proceedings in this case, in order to permit Dell to petition the Public Utility Commission pursuant to Section 619. I-lowever, at the present time, the preliminary objections of Defendant Dell should be dismissed, so that an answer to the Complaint can be filed and the parties can make a record for this Couc•t to act upon in deciding the case. Respectfully submitted, WILLIAM H. ANDRIN Attorney for Plaintiff 248 Creek Road Camp Hill, PA 1701 I (717) 73'1-9847 MARINE R. ANTONICELL I, Plaintiff v. ; IN'fHli COURT' O:' COMMON PLEAS ; CUMBERLAND COUN"1'Y, PENNSYLVANIA CIVIL, .ACTION -EQUITY FOXCROFT TOWNHOUSE ASSOCIATES, THOMAS W. OAUGHEN, and BELL ATLANTIC - PENNSYLVANIA, INC. No. 98-3182 EQUITY 1998 Defendants , CERTIi~ KATE OF SERVICE I~, Wi`ll~iam~H,'A/ndring, hereby certify that on this, the c,.~~1 day of ---~~~c~.L~! ~s.t- , 1998, I served a copy of the attached documont by causing it to be deposited in the United States Mail, Grst class postage prepaid, addressed as follows; Brian Yeager, Esq. LENAHAPd & DEMPSEY, P.C. Suite 400, Kane Building 116 North Washington Avenue P.O, Box 234 Scranton, PA 18501-0234 Thomas W. Gaughen 3800 Market Street Camp Hill, PA 17011 Foxeroft Townhouse Associates 3800 Market Street Camp Hill, PA 1701 I c ~ti~~ ~~Z_ WILLIAM H. ANDRIN(i / _. E ~ - i i b ~, s 6b..rr.ara«~a ` ~ 111 ~~ a y~ ~n (`-/~ ~.. m ~1' =~~ K~~ ~ ~ r~. ` CJ u~ I 11! ~ 11}h77~ ~ ~Fir~y Q '11~ti~ n ~~~.i~ {I,~~V~`4~~~iTlr. ~~ ~ W a 3 N [t s ,~ ~ ~ m ~ ~C ~tl,'i ~ N CiCILI~ r ~ ~ L ~ ~. < 1"0 0 G~ O o x ~ ~' ~, W wa' \~ ~ J ~~ a v o d2 N ^ (~ W r ~ \\\O 0 ~ ~ a c~~^c], W ' f., ~ t }~ xW 't 3 oa ~~ \ v ~, V ~ ~ W U (~,;, 2 v ~ O } f k', ~, F~ Icy ~ -; R ~ r, ~~" sr i ,: r ;y ~ ` 4 ~~ ~ f~ ~. .. ~~ i'~' ,~,.~ ~ 1, 1 I, ,i-- i ~" ~ ,r ,,..~ a.• `r1(, 1 `' y M y~IT f i r.* "~d~, ~'J ~; : ~' ~ ~` ` r i ~ ' ~. [ ~ t i4,1 ~`' k } ~ ~b "C~ . r ~y - ,l i ,~!ri ~ t { ~• , l _ i ~ N 1 a t ~ 8 ~ t . r ~ ' IAk @ i ~. 6 1- i ,~ , ~~ 'I (, MAXINE R, AN'i'ONICELLI, t IN THE COURT Uk' COMMON PLEAS 0[' Plaintiff CUMBERL7UVD COUNTY, PENNSYLVANIA v. CIVIL AC'1'ION - LAW FOXCROFT TOWNHOUSE ASSOCIATES, . THOMtAS W, GALIGHEN, and BELL ATLANTIC PENNSYLVANIA, INC. Defendants ~ 98-3182 EQUITY okzDF~2r c_c?_~ AND NOW, this 30th day of October, 2001, in the case of Antonicelli versus 'P'oxcraft.'i'ownhouse Associates at No. 98-3182 Civil Term, and Plaintiff's counsel, William H. Andring, Esquiro, having appeared in court and requested that the cane remain active,. and no objection being raised to the request, L•he case ie stricken from the purge list and shall remain active. By the Court, William H. Andring, Esquire 234 N. Second St. Hbg., PA 17101 For the Plaintiff Brian Yeager., Esquire STE 900 Kane Bldg. 116 N. Washington Ave. P.O. Box 234 Scranton, Fa 17101 For. Cefendant Bell Thomas W. Gaughan, Defendant Pro Se Foxcroft Townhouse Associates 3800 Market St. Camp H111, PA 17011 pcb MAXINE R, ANTONTCELLI, Plaintiff v, FOXCROFT TOWNHOUSE ASSOCIA'['ES, THOMAS W. OAUOktEN, and BELL ATLANTIC PENNSYLVANIA, INC'. IN THk; COURT OF' COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Defendants 98-3182 EQUITY CRDF,R OF COURT AND NOW, this 30th day of October, 2001, in the case of Antonicell:k versus Foxcr.oft Townhouse Associates at No. 98-3182 Civil Term, and Plaintiff's counsel, William H. Andri.ng, Esquire, having appeared in court and requested that tha case remain active, and no objection being raised to the request, the case is etricken from the purge list and shall remain active. By the Court, William H. Andring, Esquire 234 N. Second St. Hbg . , PA 1710 7. ~-p,t,lJJ For the Plaintiff -( pp Brian Yeager, Esquire l~ 2f' D~n 5 STE 400 Kane Bldg. 116 N. Washington Ave. P.O. Box 234 Scranton, Pa 17101 For Defendant Ael1 Thomas W. Gaughan, Defendant Pro Se Foxcroft Townhouse Associates 3800 Market. St. Camp Hill, PA ].7011 pcb C) c••~ ~~,~ m r.:n , -> r, .. . , . , r_. G, ,~ ~.:~ ~ W ,,`'i iri K <~ =G V _,_ _. _- - yy . _ 1 ~... - °- ')C r ~i ~ 2001 ~,~ MAXINI? R, AN"fONICFiLI.I, IN "fill? C01112'I' OF COMMON I'I.f?AS I'Iaintil't' CUMIIC;IZLANI) ('OUN'I'Y, I'I?NNSYi.VANIA v, C'IVI1. AC'I'It)N - F.Qlll'I'Y FOXCROF~'I"I'OWNIIOUSIi • ASSOCIA'1'135, TNC)MAS W, (;AIJC~IIF.N, and I31~.1.1., A"1'L,AN"1'IC _ P[iNNSY'L.VANIA, INC. No. 98.3182 Fi;Ql.ll'I'Y 1998 I)elondants PRAF.CIPE FOR PRGTRIAI. CONFERENCE TO'I'FIF's PROTIdONO"I'ARY, i'„~ , ra In accordance with C,C,R.P, 1502-i, please schedule a pretrial ovnferc,nce iri;the ahave- ~ , captioned action, ,` ~ ~-,, ~ ' ., ~' ~i~•- ~~~~~ _ T ILLIAM l 1, ANURING, SQ. Attorney for Plaintiff 234 North Street FiarrisburE, PA 171111 (717)234-4728 Y MAXINF, R. AN'I'ONICGL,I,I, I'Iainliff v, 1'OXL'ROI~"I"I'OWNHOUSL ASSOCIATES, THOMAS W. QAUCiFiEN, and BELL, A'I"LAN"1'IC - PENNSYLVANIA, 1NC. Defendants ; IN'I'III'; C'OUiZ'I' OI~ C'UMMON I'I,IiAS CUMHIiRLAND Ct)tIN'I'Y, I'1?NNSYLVANIA CIVIL AC'"19ON - I:QUI"I'Y No, 98-a I N2 I?Q111'1'1' 1998 CF,R'TIF ICATF. OF SF.RVICIi; I, William 11. Andring, herehy certify that on this, the 3(Ith day ol'October, 2001, I served a Dopy of the attached docummu by causing it to he deposited in the United Status Mail, First Class Postage Prepaid, addressed as follows; Brian Yeager, Esq. [.F,NAHAN & DEMI'SBY Suite 400 Kane Building 116 North Washington Ave. P.Q. Box 234 Scranton, PA 18>0l Victor I'. Stabile, Esq, ' DIC,WOR'I'H & 1'AXSON 305 North Front Street Suite 403 Harrisburg, PA 17101 /~ W _:°. .il -. -,. r.< ..._: -rte ___ p : ~• OC~C ~ 1 '10019 MAXIM; R. AN"fONICFiLLI, IN "I'1II~: ('OUR"I' Of COMMON 1'I,I?AS i'laintifl' CIIMBIiRLAND COUNTY, I'I?NNSYLVANIA v• CIVII, ACTION - 1?QUI'I'Y 1'OXCROI~T °fOWNHOUSl3 , ASShCIA'1'GS, °I'HOMAS W, , OAUGHEN, and [iBLL A'I'LAN'I'IC - , PENNSYLVANIA, INC. No. 98.3182 L3QU1'I'Y 1998 Defendants , PRAF.CIPE FOR PRETRIAL CONFERH:NCG ~~, -. 'f0 THE PROTIiONO'fARY: -, j-.:~ , .,~ In accordance with C,C,R,P. 1502-I, please schedule a pretrial conference7~a;tNe abeieo- ~: captioned action, - • / ~; .~~~ _ ILLIAM H. ANDRING, SQ. Attorney for Plaintiff 234 North Street Harrisburg, PA UI01 (717)234-4728 ,,, . ~ , MAXINIi R. AN'I'ONICIiI,I.I, I'laintitr v, FOXCItOF'f 'I'OWNIiOUSIi ASSOCIA'I'fs5, TFIOMAS W. GAUGHEN, and BGL.L. A"I'I„ANTIC - PENNSYL.VANIA, INC. Defendants IN "1'I IB COl1R'I' OI' COMMON I'I,IiA5 ; CUMfiF,Ri.ANU COUNTY, PENNSY[,VANIA ('IVI1, ACl'ION - IsQlll'I'Y No. 9R-31R2 LQlll'1'Y 199R CF,R'I'IFIC:ATh, OF SF:RVICM) I, William FI, Andring, hereby certify that on this, the 30th day of October, 2001,1 served a copy of the attached document by causing it to be deposited in the United States Mail, First Class Postage Prepaid, addressed as follows: Brian Yeagor, Gsq. LENAHAN & DEMPSEY Suite 400 Kane Duiiding 116 North Washington Ave. P.O. Box 234 Scrantan, PA IR501 Victor P. Stabile, Esq, DILWORTH & PAXSON 305 North Front Street Suite 403 Nanisburg, PA 17101 ,,.,,, Williatn ~- , , Tfbe ~ourt f Com~on Pie~e of um er end ~ounty, ennsy vanle FIIa Na, 1N98~03182 ANTONICELLI NIAXINH R POXCROPT TQWNHOUB@ ABti0C1ATH8 STATEMENT OF INTENTION TO PROCEED To the Cburr Plaintiff M• nt°n.{~~li Intends to proceed with tho above captioned matter, Doter September 24, 2004 ~~~ ~ Attorney/or ,,,_,__,~~ cFrr'rlHrcn'rr,osi st•:KVrcH f, William H, Andring, hcrchy certify thfrt on this, the'l4"day ufSeptemher, 2004, I served a copy of the attuchcd documcr~t by causing it to be deposital in the United States Mail, first class postage prepaid, addressed as follows; Thames W• Caughen 3800 Market Street Camp Hill, PA 1701 I Yoxcroft Townhouse Associates 3800 Market Street Camp Hill, YA 1701 Brian Yeager Suite 400 Kanc Bid Y,O• Box 234 116 North Washington Avenue Scranton, YA 18501-0234 ~h i ;Y ~, ~,n V , ~ N ~ ~ ,~,;. ~ 4 ICJ .i( ,. '! ,a - ~k~~C> ~ i ~~; N ~fo <. 4.t! `~~ tl~f>r t~ N ~ . .- .. . , Y ~ MAXII~E R. ANTONICELLI, Plaintiff v. FOXCROFT TOWNHOUSE ASSOCIATES, THOMAS W. GAUGHEN, and BELL ATLANTIC - PENNSYLVANIA, INC. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY No. 98-3182 EQUITY 1998 STATEMENT OF INTENTION TO PROCEED TO THE COURT: Plaintiff Maxine R. Antonicelli intends to proceed with the above-captioned matter. Date: November 1, 2007 ILLIAM H. ANDRING, E Q. Attorney for Plaintiff 234 North Street Harrisburg, PA 17101 (717) 234-4728 w~ _~ MAXINE R. ANTONICELLI, Plaintiff v. FOXCROFT TOWNHOUSE ASSOCIATES, THOMAS W. GAUGHEN, and BELL ATLANTIC - PENNSYLVANIA, INC. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY No. 98-3182 EQUITY 1998 CERTIFICATE OF SERVICE I, William H. Andring, hereby certify that on this, the 2nd day of November, 2007, I served a copy of the attached document by causing it to be deposited in the United States Mail, First Class Postage Prepaid, addressed as follows: Brian Yeager, Esq. LENAHAN & DEMPSEY Suite 400 Kane Building 116 North Washington Ave. P.O. Box 234 Scranton, PA 18501 Victor P. Stabile, Esq. DILWORTH & PAXSON 305 North Front Street Suite 403 Harrisburg, PA 17101 / ~~ ~, ~~ William H. Andring, Esq. ~~ _~ ~~ c ~ ; ~ ,_. yl ~ °~ f - p i _: .~L { -" ~ ~_ ~ -" ~~ ""Z