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HomeMy WebLinkAbout98-03219 5. On or about May 2, 1994, Mr, and Mrs. Kuziw purohased their property at 115 Carol Lane, Enola, Pennsylvania, in the Logan'a Run development. 6. On or about November 28, 1995, Mr. and Mrs. Rudioh purohased their property at 11 7 Carol Lane, Enola, Pennsylvania, in the Logan's Run development. 7. It is believed, and therefore averred, that Defendant S & A Custom Built Homes, Inc. was the developer of the Logan's Run development, and did construct the residences on the Plaintiffs' properties. B. It is believed, and therefore averred, that S & A Custom Built Homes, Inc. is no longer doing business, and that its suocessor corporation is Defendant Haubert Homes, Ino. 9. On or about June 19, 1996, Defendant S & A Custom Built Homes, Ino. did wr.ongfully enter. onto the property situate 115 Carol Lane, and 117 Carol Lane, Enola, Pennsylvania, owned respeotively by Plaintiffs' Kuziw and RUdich, said entry being without forewarning and without permission from the owners. 10. On or about June 19, 1996, the Defendant S & A Custom Built Homes, Inc. did wrongfully cause to have dug a trench along the length of each of the backyards situated 115 Carol Lane and 117 Carol Lane, which backyards are adjoining, and whioh trench is approximately ten to hlenty (10' to 20') feet from the rear property line of the two adjoining backyards. 11. Shortly after the initial trespass on or about June 19, 1996, and at the insistenoe of the Plaintiffs, Kuziw and RUdich, the Defendant, S & A Custom Built Homes, Ino., did enter back onto the Plaintiffs' properties in an attempt to remediate the damage that the Defendant had done to the Plaintiffs' properties, but which remediation attempt was wholly ineffective, and did result in ongoing damage as init.ially caused by the Defendant, S & A Custom Built Homes, Inc. as otherwise complained of herein. 12. It is believed, and t.herefore averred, that the subdivision plan on file in the Cumberland Count.y Recorder of Deeds office does not indicate any easement or right-of-way along the rear property line of t.he backyards situated 115 Carol Lane and 117 Carol Lane, Enola, Pennsylvania in the Logan's Run development. 13. It is believed, and therefore averred, that there is no easement or right-of-way along the rear property line of the backyards situated 115 Carol Lane and 117 Carol Lane, Enola, Pennsylvani~ in the Logan's Run development, relating to water drainage or which would otherwise give S & A Custom Built Homes, Inc. a right to enter onto the property of the Plaintiffs, Kuziw and Rudich. 14. It is believed, and therefore av€.'rred, that the trespass upon the Kuziw and Rudich property, and the subsequent wrongful digging of a trench, was in response to complaints of adjoining property owners (to the rear of the Kuziw and Rudich property) relating to water run-off and flooding in the homes situate to the rear of the KuzJ.w and Rudich rear yards. 15. Plaintiffs' Kuziw and Rudich do not have the technical expertise to rectJ.fy the damages caused to their backyards by the trespass of the Defendant S & A custom Built Homes, Inc., without fear of incurring possible liability to the rear property owners. 16. It is believed, and therefore averred, that Defendants, Haubert Homes, Inc. and S & A Custom Built Homes, Inc., have the technical expertise to rectify the damage caused to the Plaintiffs' backyards by the trespaBs of the Defendant, S & A Custom Built Homes, Inc., without fear of incurring possibl~ , I liability to the rear property owners. 17. By way of direct communication with Defendant S & A custom Built Homes, Inc. and its successor corpora'tion, Defendant, Haubert Homes, Inc., and by way of communication between counsel, Plaintiffs', Kuziw and Rudich, have requested Defendants, S & A custom Built Homes, Inc., and its Sllccessor corporation, Defendant, Haubert Homes, Inc., to correct and/or repair the damage caused to their rear yards. 18. Defendants, S & A custom Built Homes, Inc., and its suooessor corporation, Defendant, Haubert Homes, Inc., have refused to correct and/or repair the damage that has been done to the rear yards owned by plaintiffs, Kuziw and Rudich. 19. As a result of the trespass by S & A Custom Built Homes, Inc., and the digging of a trench acrosS the rear yards of the Kuziw and Rudich properties, rain water does not properly drain from the rear yards owned by the Kuziws and Rudiches, therefore resulting in a pooling of water in their rear yards. 20. As a result of the trespass and digging by S & A custom Built: Homes, Inc. of a trench acrosS the length of the rear yards of the Kuziw and Rudich properties, Plaintiffs', Kuziw and Rudich, have suffered a diminution of their ability to fully and properly utilize their own real property. 21. As a result of the trespass and digging by S & A custom Built Homes, Inc. of a trench across the length of the rear yards of the Kuziw and Rudich properties, Plaintiffs', Kuziw and Rudich, have suffered a loss to the value of their property. 22. Plaintiffs', Kuziw and Rudich, are without remedy at law. 23. As a result of the trespasses of the Defendants, Plaintiffs', Kuziw and Rudich, have incurred out-of-pocke.t costs, including, but not limited to, surveyor fees, and attorney's fees. .' l STEPHEN lInd MARIETTA KUZIW,lInd RA YMOND IInd ROSEMARY RUDICH, PllIintiffs IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA 98-3219 EQlllTY vs, HAUBERT HOMES, INC, nnd S & A CUSTOM BUILT HOMES, INC" De/cndnnts CIVIL ACT/ON -IN EQUITY !t:tilliJ.lliElilW.i:llirlU?RELI M IN AR Y OBJEC]1QNS BEFORE I3A YLEY AND IIESS. J./, ORDER AND NOW, lhis /1. ~ day of November, 1998, the preliminary o~jections of tile defendant to the plaintiffs' first lImcnded complain I are DENIED, BY THE COURT, John F, King, Esquire For the Plaintiff.~ 'fld_ . Hess,.I. . David A. Fitzsimons, Esquire' L(,~ /rHaJ.".e For the Defendants //,13 'II' :rlm . \ . 98-3219 EQUITY defendant be ordered to remove the druinuge swale from their properties und reg rude und reseed their properties, The dcfendant contcnds thut this would be a grcut hurdship und injustice, sinec they would incur considemblc expensc to mow the drainuge swule only u Jcw fcet uwuy, Moreover, the delendunt cOlltendilthul the plaintiff:~ have pled that the legul remedy of dumuges would be suftieienl. In the cuse sub judice, the defendant cluillls that the pluintiffs' amended compluint in equity should be stl'ieken because it suggests an udequate remedy at law, The plaintiffs' complaint does state thut they "have suftered a loss to the value of their property." Plaintiffs' Amended Complaint, pum, 21, The delcndant reasons that this suggests the plaintiffs have an adequate remedy at law that could be remedied by damages in the amount of the loss of value to their properties, However, the plaintiffs' ultimate I'Cquest is that the delendant bl~ ordered to repair the dum age to their properties because "rain water does not properly drain from the rear yards owned by the Kuziws and Rudiehes, therefore resulting in a pooling of waleI' in their rear yards," l.d. at para, 19, The plaintifls also contend that this does not allow them to "fully and properly utilize their own real property," l.d. at para. 20, It should be noted that "[i]t is not sul1icient that a party to an equity action may have some remedy at law, the remedy at law must be an adeQuate one, und the ~ existence of a legal remedy will not oust equitable jurisdiction," Beech v. Rallnar Benson. Inc., 402 Pa,Super, 449,454,587 A.2d 335, 338 (1991) (citing 14 Standard PA Practice 2d Section 79:21)), Moreover, a request, in the alternative for fl10netury damages will not, in any event, defeat an equity action, W, ~ ~ f.llko v, Thomas, 425 Pa,Super, 285, 624 A,2d 1075 (1993), ~ 2 STEPHEN and MARIETTA KUZIW, . and RAYMOND and ROSEMAkY RUDIIOH, IN THE OOURT OF OOMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. fff Lj /9 /'?" i ~ INC.: CIVIl, ACTION - IN TRESPASS IN EQUITY. HAUBERT HOMES, INC. and S , A CUSTOM BUILT HOMES, Defendants HQT.Ig TO DEFENDANTS NAMED HEREIN: You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with tho Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case :nay 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU 00 NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Libert.y Avenue Carlisle, PA 17013 (717) 249-3166 Le han demandado a usted enla corte. si usted quiere defenderse de e~tas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partie de la fecha de la demanda y III notificacion. Usted debe presentar una aparieno!a .sorita 0 en persona 0 par abogado y archival' en la corte en forma escr!ta sus defensas 0 sus objeciones alas demandas en oontra de su persona. Sea avisado que si usted no se defiende, la oort.e tomara medidas y puede antral' una orden contra usted sin previo aviso 0 notificacion y pOl' cualquier queja 0 alivio que es pedido en la petioion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. STEPHEN and and RAYMOND RUOICR, MARIETTA I<UZIW, and ROSEMARY Plaintiffs : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYltVANIA v. NO. 91' .1.l/1 ftlnty -r;,.., , HAUBERT HOMES, INC. and 8 , A CUSTOM BUILT HOMES, Defendants INC.: CIVIL ACTION - IN TRESPASS IN EQUITY ~ AND NOW come the Plaintiffs, Stephen and Marietta Kuziw, and Raymond and Rosemary Rudich, by and through their attorneys, Friedman and Friedman, P.C., and bring this cause of action against the Defendants and aver as follows: 1. The Plaintiffs, Stephen and Marietta I<uziw, are husband and wife, residing at 115 Carol Lane, Enola, cumberland county, pennsylvania 17025. 2. The Plaintiffs, Raymond and Rosemary Rudich, are husband and wife, residing at 117 Carol l,ane, Enola, Cumberland county, Pennsylvania 17025. 3. The Defendant, Haubert Homes, Inc., is a Pe.nnsylvania corporation duly licensed to do business in the Commonwealth of Pennsylvania, with a business address of 15 Central BLvd., Camp Hill, Cumberland County, Pennsylvania 17011. 4. The Defendant., S & A Custom Bull t Homes, Inc., i. a Pennsylvania corporation duly licensed to do business in the commonwealth of pennsylvania, with a business address of 15 Central BLvd., Camp Hill, Cumberland County, Pennsylvania 17011. 5. On or about May 2, 1994, Mr. and Mrs. I<uziw purchased their property at 115 Carol liane, Enola, Pennsylvania, in the Logan's Run developm8nt. 6. On or about November 28, 1995, Mr. and Mrs. Rudich purchased their property at 117 Carol Lan~, Enola, Pennsylvania, in the Logan's Run development. 7. It is believed, and therefore averred, that Defendant S & A Custom Built Homes, Inc. was the developer of the Logan'S Run development, and did construct the residences on the Plaintiffs' properties. 8. It is believed, and therefore averred, that S & A Custom Built Homes, Inc. is no longer doing business, and that its successor corporation is Defendant Haubert Homes, Inc. 9. On or about June 19, 1996, Defendant S & A Custom Built Homes, Inc. did wrongfully enter onto the property situate 115 Carol Lane, and 117 c,arol Lane, Enola, Pennsylvania, owned ! respectively by Plaintiff!s' I<uziw and RUdich, said entry being , without forewarning and without permission from the owners. 10. On or about June 19, 1996, the Defendant S & A Custom Built Homes, Inc. did wrongfully cause to have dug a trench along the length of each of the backyards situated 115 Carol Lane and 117 Carol Lane, which backyards are adjoining, and which trench is approximately ten to twenty (10' to 20') feet from the rear property line of the two adjoining backyards. 11. Shortly after the initial trespass on or about June 19, 1996, and at the ineistence of the Plaintiffs, I<uziw and RUdich, the Defendant, S & A Custom Built Homes, Inc., did enter back onto the Plaintiffs' properties in an attempt to remediate the damage that the Defendant had done to the Plaintiffs' properties, but which remediation attempt was wholly ineffective, and did result in ongoing damage as initially caused by the Defendant, S & A Custom Built Homes, Inc. as otherwise complained of herein. 12. It is believed, and therefore averred, that the BUbdivision plan on file in the Cumberland County Recorder of Deeds office does not indicate any easement or right-of-way along the rear property line of the backyards situated 115 Carol Lane and 117 Carol Lane, Enola, Pennsylvania in the Logan's Run development. 13. It is believed, and therefore averred, that there is no easement or right-of-way along the rear property line of the backyards situated 115 Carol Lane and 117 Carol Lane, Enola, Pennsylvania in the Logan'S Run development, relating to water drainage or which would otherwise give S & A Custom Built Homes, Inc. a right to enter onto the property of the Plaintiffs, Kuziw and Rudich. 14. It is believed, ~nd therefore averred, that tha tr..pa.. upon the Kuziw and RUdich property, and the subsequent Wrongful digging of a tr.enoh, was in rasponss to complaints of adjoininc;J property own~rs (to the rear of the Kuziw and Rudioh property) rUlating to water run-off and flooding in the homes aituat. to the rear of the Kuziw and Rudich rear yards. 15. Plaintiffs' I<uziw and RUdich are unable to rQotify the damage caused to their backyards by the trespass of the O.tendant S , A Custom Built Homes, Inc., without fear of inourring possible liability to the rear property owners. 16. By way of direot communication with Defendant S , A Custom Built Homes, Inc. and its SUccessor corporation, Defendant, Haubert Homes, Inc., and by way of communication between counsel, Plaintiffs', I<uziw and RUdich, have requested Defendants, S & A Custom Built Homes, Inc., and its SUccessor Corporation, Defendant, Haubert Homes, Inc., to correct and/or repair the damage caused to their rear yards. 17. Defendants, S & A Custom Built Homes, Inc., and its successor corporation, Defendant, Haubert Homes, Inc., have refused to correct and/or repair the damage that has been done to the rear yards owned by Plaintiffs, Kuziw and Rudich. 18. As a result of the tr.espass by S & A Custom Built Homes, Inc., and the digging of a trench across the rear yards of the Kuziw and Rudich properties, rain water does not properly drain from the rear yards owned by the I<uziws and RUdiches, therefore resulting in a pOoling of water in their rear yards. 19. As a result of the trespass and digging by 8 & A CUltom Built Homes, Inc. of a trenoh aoross the length of the rear yards of the Kuziw and Rudich proporties, Plaintiffl', I<uziw and RUdioh, have suffured a loss to the value of their property. 20. Plaintiffs', Kuziw and RUdiCh, are without remedy at law. 21. As a result of the trespasses of the Defendants, Plaintiffs', I<uziw and RUdich, have inourred out-of-pooket costs, incLUding, but not limited to, surveyor fees, and attorney's fees. WHEREFORE, Plaintiffs' pray: A. That Defendants be ordered to rectify the damages which they created by the trespass upon the Kuziw and RUdich properties, and to regrade and reseed the rear yards of the Kuziw and Rudich properties to the condition in which the rear yards existed prior to the trespass of the Defendants. B. i For damages incurred by the Plaintiffs, Kuziw ~nd i RUdiCh, as a result of the loss in value of their property resulting from the trespass and digging by Defendant, S & A Custom Built Homes, Inc. C. For the costs incurred by the Plaintiffs in pursuit of this claim, said claim being necessitated by the Defendants' trespasses. C'I;':: ..~ i' >- C.r; F~ ll.lc., ( '\ ~- \',.' , (I' t(l, C:l\ lli' Li \ f Ii '.' .. .- ii.,. I n ' , Lei; ,1. (/i' ,. .f4 .,\ ~ (-1 ~: U~ ("'j f .'.'1., ~~,~ " :"3 ..;(, t'" C'l c> .,..t (J.C' .I L.' 1I". ()i; ',1 "J ~. G () r'.1 (~~' _)1: ' _:!';', "i !' ~>i "''-1' eL.',! ..'-' 'liP ~::., .,:) { -- l~' ..-., ;.;.~ \.l.. rn <? U .0' U " , ,.~.,. 10. Plaintiffs Prayer for Relief, In Paragraph "B", seeks damages at law Incurred as a result of the l(Jss in value of their property resulting from the alleged trespass by Defendant, Haubert Homes, Inc. 11. Plaintiffs' Prayers for Relief In both law and equity seek redress for alleged damage arising from the same cause of harm, namely the installation of the swale. 12. Under Pennsylvania law, equitable relief is not available to Plaintiffs unless there Is no adequate remedy at law, 13. Plaintiffs In Prayer for Relief Paragraph "A" of their Complaint admit the existence of an adequate remedy at law for damages by seeking money to compensate them for the loss In value of their propel1y, alleged to be caused by the Installed swales. WHEREFORE, Defendants, Haubert Homes, Inc" and S&A Custom Built Homes, Inc. respectfully request that this Court find in their favor and enter an Order striking Plaintiffs' action. DEMURRER 14. The averments of paragraphs 1 through 13 are Incorporated herein by reference. 15. Under Pennsylvania law, specific performance should not be ordered where it appears that doing so will reRultln hardShip or Injustice to either party, 16. Plaintiffs' aver In Complaint Paragraph 15 that they are unable to rectify the damage by regrading and reseeding the backyards without fear of incurring possible liability to the rear property owners. 4.' Defendant Haubert Homes Is the sole proper Defendant In this action, being an entity "spun off' from the previous developer S & A Custom Built Homes, Ino. Haubert Homes has since become a separate entity and maintains responsibility for any litigation that arises In the specific geographic area In which Plaintiffs' properties are located. 6. Plaintiffs allege that Defendants improperly constructed what they characterize as a ditch, and what Is actually a drainage swale near and along the rear bClundarles of their adjoining properties. The purpose of the swale Is to direct storm water runoff away from the Plaintiffs' houses and to prevent that runoff from flooding the properties of rear lot adjoining neighbors whose lots sit lower than Plaintiffs. 6. Plaintiffs acknowledge at paragraph 15 of their Complaint and Amended Complaint that they are unable themselves to take steps to redress Defendants' alleged Improper installation of the swale for fear of liability to the adjoining property owners. 7, At paragraph 16 of the Amended Complaint Plaintiffs aver that Defendants have expertise to rectify the damage without fear of incurring liability to the rear property owners. 8. In Paragraph 22 of the Amended Complaint, the Plaintiffs claim that they are without a remedy at law. 9. At paragraph 20 and 21 of the Amended Complaint Plaintiffs aver loss and diminution of value, damages which are adequately remedied at law. 10. Plaintiffs plead the Inadequacy and unavallOlblllty of an adequate remedy at law to redress their alleged damage yet also admit a remedy In monetary damages for the <iIrO~ ...J diminution of valul;l to their lands caused by the Installation and effect of the drainage swale on their property. DEMURRI;B 11. The averments of paragraphs 1 through 10 are incorporated herein by reference. 12. Under Pennsylvania law, equitable relief Is not available to Plaintiffs unless there Is no adequate remedy at law. 13, Plaintiffs Paragraphs 20 and 21 of their Complaint admit the existence of an adequate remedy at law for damages by claiming the loss and diminution in value of their properly, alleged to be caused by the installed swales. WHEREFORE, Defendants, Haubert Homes, Inc., and S&A Custom Built Homes, Inc. respectfully request that this Court find in their favor and enter an Order striking Plaintiffs' action. DEMURReB 14. The averments of paragraphs 1 through 13 are Incorporated herein by reference. 15. Under Pennsylvania law, specific performance should not be ordered where It appears that doing so will result in hardship or Injustice to either party. 16. Plaintiffs' aver in Complaint Paragraph 15 that they are unable to rectify the damage without fear of Incurring possible liability to the rear property owners. 17. Yet Plaintiffs' prayer for relief requests that Defendants rectify the damage presumably bringing upon Defendants the liability that Plaintiffs' themselves are unwilling to Incur. ?f ~) ,- <'v r" ',., '..J .. ....~ (') ~, ::'),,1' ~~; (J.", ~ ()~:;" . rl.~ (~ '");1. (0 ~~:; ~ ?r ,... ~;."t~ 'q C'\) ,J.;, . '..,.~. lEu' ....1 f.J:.... 'f' ....J :"Ee f'. =:., f.!; ~ ~ '5 u . 'w.- ,j originally In compliance with the Development Erosion and Sediment Control Plan dated March 11, 1991, revised March 18, 1991. to. Denied. The averments of paragmph 10 of the Amended Complaint constitute conclustons of law to which no response Is requlmd by the Pennsylvania Rules of Civil Procedure. By way of further response, It is specifically dented that S & A caused a trench to be dug along the length of each of the backyards as described In paragraph 10 of Plaintiffs' Complaint. To the contrary, the appl'Oprlate and necessary drainage swale was reinstalled on Plaintiff Rudich's pl'Operty. The swale on Kuziw's property was preexisting and was not altered other than the mllloval of sediment caused by Rudich's actions on the swale. 11. Denied. The averments of paragraph II of the Amended Complaint constitute conclusions of law to which no response Is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is required, S & A intended only to seed the swale that was now properly Installed. 12, Admitted, 3 13. Denied, The averments of paragraph 1:~ of the Amended Complaint constitute conclusions of law to which no response Is required by the Pennsylvania Rules ofClvtl Procedure. To the extent that a response Is required, any Inference that appropriate drainage Is not required at the properties is denied. Furthermore, easements are not necessary for the Installation of erosion controls. The installed swales are for the benefit of' the lot owners, who, absent such control measures, would be liable to their neighbors for run-off from their lots. 14. Denied. The averments of' paragraph 14 of the Amended Complaint constitute conclusions of law to which no response is required by the Pennsylvania Rules of Clvll Procedure. To the extent that a response Is required, any Inference that appropriate and necessary water contl'Ol measures were taken for any reason other than legitimate needs Is specifically denied. Plaintiff Rudich's adverse actions on the existing swale caused an emergency run-off situation for which Rudich would have been accountable. S & A's action In removing the "dam" Installed In the swale system by Rudich was to Rudich's ultimate benefit. 15. Denied. Upon reasonable Investigation, Defendants are without knowledge sufficient to form a belief as to the averments of paragraph 15 of the Amended Complaint, and strict proof thereof Is demanded at trial. To the extent a 4 response is required, the yards are not damagedj to the contrary, appropriate storm 'water measures were installed, 16, Denied. It is specifically denied that the PlainUffs' yards are dallla!(ud by S & A's installation of an appropriate drainage swale at their properly, By way of l'urthUl' response, it is denied that S & A trespassed on Plaintiffs' property, a legal COIJ(:llIslolltn which no response is required by the Pennsylvania Rules of Civil Proccdlll'O, By WilY of further response, Plaintiffs would incur liability to rear property OWIWI'S II' thllY all(lwlId water run-off from their properties to Inundate those neighboring proPUl'ty OWII()rs, 17. Admitted in part and denied In part. It is admitted that PlalntUl's, directly and through their counsel, have requested that Defendants remove the swale that WlIS installed. It is specifically denied that S & A's acUon constitute damage to Plaintiffs' property, 18. Denied. The installation of the swale on PlalnUffs' properties do not constitute damage as alleged by Plaintiffs and as such the averments of pamgraph 1 II are specifically denied. To the contrary, the swale Installed is a necesslIry featuro f(u' surface and storm water control and does not constitute damage to the Plallltlffs' property. 5 i;J "I G ^,C If; ~~ j..~ . . (', - >) ,:'5 ""',e,. ("'} ).., () (!" ' ~.: :~;~ -:I,'-j?'- u.. :, ( J _~. (' ) ',.1 f~) t'l/ i 'J Jf\. - '< Q'u c. , I_t.- ;~;>< 'PI.W ii, I , ~~~}n.. L 0,,'1: II ('1) ..-) U (n G .. STEPHEN and MARIETTA I<UZIW, and RAYMOND and ROSEMARY RUDICH, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 98-3219 Equity HAUBERT HOMES, INC. and S , A CUSTOM BUILT HOMES, Defendants INC.: CIVIL ACTION - IN EQUITY RBPLY TO NEW MATTBR AND NOW come the Plaintiffs, by and through their attorneys, Friedman & I<ing, P,C., and reply as follows: 24. The averments contained in paragraphs 1 through 23 of the Plaintiffs' Amended Complaint are incorporated herein as though more fully set forth at length. 25. It is specifically denied that the alleged swales installed and reinstalled on the Plaintiffs properties by the Defendant are consistent with the alleged erosion and sedimentation control plan approved by East Pennsboro TownShip, and proof thereof is therefore demanded. By way of further answer, it is believed, and therefore averred, that the township, by way of its Board of Supervisors and legal counsel, has indicated that the alleged swale is not located in a place approved by the township. 26. It is specifically denied that the reinstalled swale was approved by the township and the development engineers, and proof thereof is therefore demanded at trial. It is specifically denied that the Plaintiffs agreed to the reinstallation of a swale, Il.lld proof thereof is therefore demanded at trial. By way of further answer, it is believed, and therefore averred, that the township, by way of its Board of Supervisors and legal counsel, has indicated that the alleged swale is not located in a place approved by the township. By way of further answer, Rudich did not remove an installed swale which had originally been in compliance with the Development Erosion and Sediment Control Plan, dated March 11, 1991, revised March 18, 1991, and any averments to that effect contained in the Defendants' Answer are denied, with proof thereof therefore demanded at trial. By way of further answer, Plaintiff Rudich took no actions which caused a build up of sediment in an alleged existing swale in his backyard, and any averment to that effect in the Defendants' Answer is denied, with proof thereof therefore demanded at trial. By way of furt.her answer, Rudich never installed a "dam" in an alleged swale system, and any averment to ! i that effect by the Defendants in its Answer is denied, with proof thereof therefore demanded at trial. 27. It is specifically denied that the Plaintiff Rudich impeded the flow of water in the alleged swale by directing the landscaping subcontractor to final grade a "flat lot", and proof thereof is therefore demanded. By way of further answer, it is averred that the only communication between Plaintiff Rudich and the landscaping subcontractor was when Plaintiff Rudich expressed his extreme displeasure, which expression was ignored. 28. After reasonable investigation, the Plaintiffs are without 8uff1o.tent information to express an opinion aa to the truth of Defendants' allegation that the Defendants' aotion on June 19 prevented the flooding of neighbors' houses downhill from RUdich, and proof thereof is therefore demanded. It is specifically denied that the Defendants' action on June 19 reinstalled the proper water flow, and proof thereof is therefore demanded. By way of further answer, it is averred that any flooding problem whioh was bp.ing experienced by neighbors' house& waft from two empty lots then eXisting. It is further averred that the Defendants attempted to address that problem stemming from the two empty lots by improperly trespassIng upon the Plaintiffs properties, and directing the flow of water through the rear yards of the Plaintiffs, 29. The averments of paragraph 29 of the Defendants' New Matter const.itute conclusions of law to which no response is required by the Pennsylvania Rules of civil Procedure. To the extent that a response is required, it is specifically denied that the Amended Complaint fails to state a claim upon which relief can be granted, and proof thereof is therefore demanded. 30. The averments of paragraph 30 of the Defendants' New Matter constitute conclusions of law to which no response is required by the Pennsylvania Rules of civil Procedure. To the extent that a response is required, it is specifically denied that the Plaintiffs actions against the Defendants is barrsd by the Doctrine of Estoppel, and proof thereof is therefore demanded. 31. The averments of paragraph 31 of the Defendants' New Matter constitute conclusions of law to which no response is required by the Pennsylvania Rules of civil Procedure. To the extent that a response is required, it is specifically denied that the Plaintiffs actions against the Defendants is barred by the Doctrine of Unclean Hands, and proof thereof is therefore demanded. 32. The averments of paragraph 32 of the Defendants' New Matter constitute conclusions of law to which no response is required by the Pennsylvania Rules of civil Procedure. To the extent that a response is required, any averment that the Defendants' liability is lessened or negated due to the Doctrine of Contributory Negligence or comparative Negligence and/or the Doctrine of Assumption of the Risk, are denied and proof thereof is therefore demanded. 33. The averments of paragraph 33 of the Defendants' New Matter constitute conclusions of law to which no response is required by the Pennsylvania Rules of civil Procedure. To the extent that a response is required, any averment that the Defendants' li~bility is lessened or negated due to the Doctrine of Contributory Negligence or comparative Negligence and/or the Doctrine of Assumption of the Risk, are denied and proof thereof is therefore demanded. By way of further answer, it is specifically denied that an intervening cause or causes resulted in aotions on the part of the Defendants not being the proximate and/or oompetent producing cause of the Plaintiffs injuries. 34. The averments of paragraph 34 of the Defendants' New Matter constitute conclusions of law to which no response is required by the Pennsylvania Rules of civil Procedure. To the extent that a response is required, any averment that the Defendants' liability is lessened or negated due to the Doctrine of contributory Negligence or Comparative Negligence and/or the Doctrine of Assumption of the Risk, are denied and proof thereof is therefore demanded. By way of further answer, it is specifically denied that the Plaintiffs injuries and/or damages were caused and/or contributed in whole or in part by the negligence and/or related actions of one or more third persons for whose conduct the Defendants are not responsible, or with whom the Defendants have no legal relation. By way of further answer, it is averred that the Defendants were the sole cause of the injuries and damages suffered by the Plaintiffs. WHEREFORE, Plaintiffs' pray: A. That Defendants be ordered to reotify the damages which they created by the trespass upon the I<uziw and Rudich properties, and to regrade and reseed the rear yards of the I<uziw and Rudioh properties to the condition in which the rear yards existed prior to the trespass of the Defendants. B. For the costs incurred by the Plaintiffs in pursuit of thi. claim, .aid claim being necessitated by the Defendant.' trespasses.