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HomeMy WebLinkAbout03-0677WALNUT VILLAS CONDOMINIUM ASSOCIATION Plaintiff KEVIN KOLAKOWSKI Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA _. : No. 577 .NOTICE TO DEFEND AND CLAIM RIGHTS 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 the court your defenses or objections to the claim 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 BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 WALNUT VILLAS CONDOMINIUM ASSOCIATION Plaintiff KEVIN KOLAKOWSKI Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA : NO. (o 77 ._ COMPLAINT 1. Plaintiff, Walnut Villas Condominium Association (hereafter "Association"), is a non-profit corporation organized and existing in accordance with the Pennsylvania Uniform Condominium Act, 68 Pa. C.S. § 3101 et. seq. and the Non-Profit Corporation Law, 15 Pa. C.S. § 7701 et. seq., to administer the Walnut Villas Condominiums located in the Borough of Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, Kevin Kolakowski, is a member of the Association and owns and resides in Unit 911 of the Walnut Villas Condominiums, 911 Old Silver Spring Road, Mechanicsburg, Pennsylvania 17055. 3. Plaintiff Association has enacted Bylaws with which all property owners and residents, including Defendant, must comply. 4. In August of 2002, Defendant installed multiple electric exhaust fans in Unit 911 some of which were mounted on walls common to neighboring units. The owners and residents of the neighboring units have complained to the Association about the unreasonable noise created by the running of these exhaust fans throughout all hours of the day and night, and such noise has interfered with the neighboring residents' quiet use and enjoyment of their property in that the residents of the neighboring units have been unable to sleep, read, study, hear the television, or otherwise use and enjoy their property as is their right. 5. On October 26, 2002, Association President, Patricia Goforth and Victor DeCasaris, Construction Manager for The Norwood Company conducted a consensual inspection of Defendant's unit and determined that the fans violate building and fire codes, create fire hazard and serve no legitimate and lawful purpose that could be reasonably ascertained. 6. The installation and operation of the fans violate Article VII of the Condominium Declaration (See Exhibit "A" attached) which reads in relevant part that: "Section 7.1 Use and Occupancy of Units and Common Elements. The occupancy and use of the Units and Common Elements shall be subject to the following restrictions: (a) No Unit or Common Element (except those Units and offices owned or ' ' leased by the Declarant or Executive Board as Administrative Offices, Models, or storage facilities) shall be used for any purpose other than as a private residence for the use of one family consistent with the Declaration, By-Laws and Rules and Regulations promulgated by the Executive Board, nor shall anything be done therein which may be a nuisance to the occupants of neighboring Units." Defendant is further in violation of Article VI of the Bylaws which provides that: "6.1 Relief. Each Unit Owner shall be governed by, and shall comply with all of the terms of the Declaration, these bylaws, the Rules and Regulations and the Act, as any of the same may be amended from time to time."(See Exhibit "B" Attached) 7. The installation of the fans violates the applicable building code requirements of the Borough of Mechanicsburg. 8. The installation and use of the fans pose a serious fire hazard to Unit 911 and the neighboring units. 9. By letter dated November 4, 2002, sent to Defendant by certified mail, Plaintiff Association, by and through its' President, Patricia Goforth, informed Defendant that the installation and operation of the fans violated the building code and Association Bylaws and created a nuisance and fire hazard, and gave Defendant 30 days in which to disconnect all electrical outlets, wiring, and/or apparatus that operate the exhaust fans at issue. (See Exhibit "C" Attached) 10. To date, Defendant has failed to comply with this deadline and has continued to operate the exhaust fans at all hours of the day and night and neighbors continue to complain to the Association Executive Board about this nuisance (see Exhibits "D" and "E" attached). Article VI of the Bylaws (Compliance and Default) further provides in pertinent 11. part that: "In any proceeding out of any alleged default by a Unit Owner, the prevailing party shall be entitled to recover the costs of such proceedings and such reasonable attorney's fees as may be determined by the Court." id at 6.1(b) (see Exhibit "F" attached). 12. Plaintiff Association is entitled to counsel fees and costs in this matter. WHEREFORE, Plaintiff Association prays for the following reliefi a. An Order enjoining Defendant from operating the exhaust fans and requiring him to disconnect all electrical outlets, wiring and/or apparatus that operate the exhaust fans installed by Defendant. b. An Order requiring Defendant to reimburse the Association for attorney fees and costs. c. Such other relief as the Court in its' sound discretion finds necessary and just. RESPECTFULLY SUBMITTED, Camp Hill, PA 17011 (717) 761-8101 Attorney for Plaintiff I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Patricia (~of~rtl~, President//) Walnut Villas Condomini~Association Date: Exhibit A DECLARATION OF CONDOMINIUM OF WALNUT VILLAS CONDOMINIUM Recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, at Miscellaneous Book Vol. 308, page 147, as amended by the following amendments recorded in the aforesaid office: Title Date First Amendment 12/31/85 Second Amendment Third Amendment Fourth Amendment Fifth Amendment Recorded at Misc. Book Vol. 313, p. 133 Date of Recordinq 12/31/85 4/14/88 Misc. Book 4/18/88 Vol. 348, p. 868 11/10/87 Misc. Book 11/30/87 Vol. 343, p. 368 6/12/87 Misc. Book 6/12/87 Vol. 335, p. 283 3/23/87 Misc. Book 3127/87 Vol. 331, p. 933 At such time as the Convertible Real Estate is the maximum number of Units in the Convertible Real an aggregate will be no more than 94. Al! Units created within the Convertible Real Estate will be restricted exclusively to residential use. Any Buildings to be renovated or constructed within the Convertible Real Estate and Units therein shall be compatible in quality, size, materials and architectural style with the Buildings and Units on other portions of the Property. All restrictions in this Declaration affecting use, occupancy and alienation of Units shall apply to Units created wlth the Convertible Real Estate. No assurances are made as to any other improvements and Limite. d Common Elements to be made or created in the Convertible Real Estate, nor the proportion of Limited Comm(~n Elements to Units therein. The reallocation of Percentage Interests in the Convertible Real Estate and the Property shall be computed as required by Section 2. t above. ARTICLE VII USE RESTRICTIONS V/"'~ 7.1. U-~ and,Occupancy o.f Units arid Common Elements, The occupancy and use of the Units and Common Elements shall be subject to the following restrictions: ' (al No Unit or Common Element (except those Units and cffices owned or leased by the Declarant or Executive Board as Administrative-. Offices, Models, or storage facilities) shall be used for any purpose other than as a private residence for the use of one family consistent with the Declaration, By-Laws and Rules and Regulations promulgated by the Executive Board, nor_shall anythi_ng be_done...t.herein w_h_ich may be a__ nuisance to the occupants of neighboring Units;. _ (b) The Declarant shall have the irrevocable right to use any Units owned or leased by it, Common Elements, (except those assigned as Limited Common Elements) or offices for sales, administrative or management purposes until it has conveyed title to the last unsold Unit owned by the Declarant, This right shall not be subject t,o amendment or modification by the Unit Owners. The Executive Board shall have the right to lease the Common Elements 'or Un[ts as such, subject to zoning lease and any other government regulations, upon terms and cdnditions as established by the Executive Board. (c) Each Unit Owner shall be obligated to maintain his own Unit and keep it in good order and repair, end to replace and repair ail ai~ conditionir~g ~_quipment, heating units, and any [andscapir~g located or~ or within his limite~ Common.Elemer, ts or his Unit. Exhibit B BYLAWS OF WALNUT VILLAS CONDOMINIUM ASSOCIATION ARTICLE I Introductory Provisions 1.1. Applicability. These Bylaws provide for the government of the Association pursuant to the requirements of Section 3306 of the Act with respect to the Condominium created by the recording of the Declaration among the land records of Cumberland County in Miscellaneous Book Vol. 308. and Page 147. 1.2. Definitions. Capitalized terms used herein without definition shall have the meanings specified for such terms in the Declaration to which these Bylaws pertain or, if not defined therein, the meanings specified or used for such terms in the Act. 1.3. Compliance. Pursuant to the provisions of the Act, every Unit Owner and all Persons entitled to occupy a Unit shall comply with these Bylaws. 1.4. Office. The office of the Condominium, the Association, and the Executive Board shall be located at the Property or at such other place as may be designated from time to time by the Executive Board. 1.5. Incorporation of Statutory Law. Except as expressly provided herein, in the Declaration, or in the Act, the Association shall be governed by the provisions of the Non-profit Corporation Law of 1972 of the Commonwealth of Pennsylvania, 15 Pa. C.S. 7701 et seq., as it may be amended from time to time (the "Corporation Law"). The "Board of Directors" described therein shall be referred to herein and in the Declaration as the "Executive Board." ARTICLE II The Association 2.1. Composition. The Association is hereby organized on the date here as a non-profit corporation. The Association shall consist of all of the Unit Owners acting as a group in accordance with the Act, the Declaration and these Bylaws. The Association shall have the responsibility of administering the Condominium, establishing the means and methods of collecting assessments and charges, arranging for the management of the Condominium and perfol.~ing all of the other acts that may be required or pe..itted to be perfo[ ~-~ed by the Association pursuant to the Act and the Declaration. The foregoing {i, 1. Rellei'. Each Unit Owner shall be governed by, and shall comply with all of the terms of the Declaration, these bylaws., the Rules and Regulations and the Act, as any of the same may be amended from time to time. In addition to the remedies provided in the Act and the Declaration, a default by a Unit Owner shall entitle the Association, acting through Its Executive Board or through the Mal~.ng A~ent, to the following relief: a. ~. Each Unit Owner shall be liable for the expense of all m. aintenance, ,raja_ir. or re~31acamenLrenderad ne~ssa~bv.hls act, neglect, o_r c~r_e~essness or me ,=ct, neglect or carelessness of his tenant, guests, invitees-- oTlicensee~-, but-only to the extent that such expense is not covered by the proceeds of Insurance carried by the Executive Board. Such liability shall include any increase in casualty insurance premium occasioned by improper use, misuse, occupancy or abandonment of any Unlt or Its appurtenances. Nothing contained herein, however, shall be construed as modifying any waiver by any insurance company of Its rights of subrogation. t~b Costs anti Atl;~rnev's Fe~s In ~fiy proceedings arisln out ora .alleged default _bY ~ Unlt nwn~[_ fha prevalttng party Shall be em~tie~rto re~ve~' t~-e ~-sts of such proceeding and such reasonable attorney's fees as may be determined by the court. c. No Waiver of Riehts. The failure of the Assooiation, the Executive board or of a Unit Owner to enforce any right, provision, covenant or condition which may be granted by the Declaration, these Bylaws, the Executive Board Rules and Regulations or the Act shall not constitute a waiver of the right of the Association, the Executive Board or the Unit Owner to enforce such rights, provision, oovenant or condition in the future, All fights, remedies and privileges granted to the Association, the Executive Board or any Unit Owner pursuant to any term, provision, covenant or condition of the Declaration, these bylaws, the Rules and Regulations or the Act shall be deemed to be cumulative and the exem]se of any one or more thereof shall not be deemed to con'stitute an election of remedies, nor shall it preclude the party exercising the same from exercising such other privileges as may be granted to such part by the Declaration, these bylaws, the Rules and Regulations or the Act or at law or ip equity. d. Ab~tln¢3 and Eniolnln~ Violations bv Unlt Ownernl The violation of any of the Executive Board Rules ahd Regulations adopted by the Executive Board, the breach of any Bylaw contained herein or the breach of any provision of the Declaration or the Act shall give the Executive Board the right, In addition to any ether rights: (a) to enter the Unit in which or as to which, such violation or breach Exhibit C W{ lnut Villas Condominium As, sociation November 4, 2002 CERTIFIED MAIL Kevin Kolakowaki 911 Old Silver Spring Road Mechaniceburg, PA 17055 Dear Mr. Kolakowski: Upon receipt of this letter, you have 30 days in wl'dch to disconnect all ele~rical outlets, wiring, and/or, apparatus that operate exhaust fans which-~'ou installed within your unit from the basement to the attic. This extra electric source is not safe to you or your neighbors on either side of you. We are ~ concerned about the potential fire hazard which you have created and the effects of these exhaust fans which are causing your neighbors to deal with an unnecessary nuisance. During my visit with you Friday, October 25, to feel the vibrations you were experiencing, I did not feel anything. On Saturday, October 2~, I again visited your unit and had Mr. Victor DeCesarls, Construction Manager for The Norwood Company, accompany me. Mr. DeCesaris looked at the units on either side of your unit and found nothing that would cause a vibnation of the magnitude you described. He then looked at your unit. The fans which you have installed do not meet building code requirements. Also, they are the contributing factor to the excessive vibration that your lwo neighbors are experiencing. This nuisance needs to cease. Again, I want to state that you have 30 days in which to comply or this matter will be turned over to the Board's attorney. 921 Old Silver $~odng Read, Meehank~b~"~. PA 170~ Voice Mail: 717 7~0-1~33 8~ar¥: Paula Ul~art £O'd 6~:S £0, ~I u~f OSIF-CZ6-ZIZ:x~J '~.L3 ~,d~3Hl DMI~MU3 Exhibit E ~anuary $, 2OO3 Pat C-oforth Walnut Villas Condominium Association 921 Old Silver Springs Road Mechanicsburg, PA 17055 Dear Pat: I am writing this letter becau,~ I have a great concern for myself and the other residents in this row of units regara~,~$ thc situation with Mr. Kol~kowski. /n August 2002 hc had installed fans on the walls of his unit, which is the unit next to mine. As I was gleaning my bathroom one day I could hear him drilling and plastering. When I was cleaning the fi'ont bedroom, I heard the same noises. I didn't give it much lfiought until less than a w~k later thc problem stared. I heard fans running constantly from 7:00 p.m. at nigh! until 7:15 a.m. every day. On weekends, they were non-stop. They wcrc not only loud but they vibrated my walls. Without being able ~ know wlme he has these fans, my guess by the vibration 'and ~oim is on the basemem wall, two on the living room wall, and two on the front bedroom walls. After confronting Mr. Kolakowski about the situation and not being able to come to a solution, I phoned the Mechanicsburg police for advice on how lo solve the problem. They told me that it was a civil problem and not a crir~in,I problem and I should report it to the association, which I did in October. In the beginning, Chose vibrations were so a~noying to me that I could not hea~ my television above tho constant humming offAn~. I had 1o move my sofa away fi'om the wall towards his unit because 1 could not concentram above the noise when I sat on the ~ofa to study. I moved my television to the si& of the living room towards his unit in hopes that ',he television would drown out thc sound of the fans but to no avail. My living room is now arrang~ in such a way that is not accommodating or appe~aling to me. Not only have I had to rearrange my living room but my upstairs also. The noise of these fans a~e so irritating that [ had to move my bed out of the from bedroom into thc back bedroom because I could not get to sleep a: night. For some reason, the noise is not as loud in the back b~droom. I don:t believe he has any fans installed on thaz wall but the noise emanating from the bathroom wall can still b¢ heard in that room. Thcrcfol% this does not solve the problem aa they still wak~ me in the middle of the night. Moving my bed has cawed me t~reat disruption. I have a cable line and telephone line in ~ back bedroom, which I need for my computer. Therefore, I could not move my computer or television out of the back bedroom and ~efore, c~mnot move my dressers into the back bedroom. I had a workout room and office setup in the back bedroom. I h~d to lake some of my workout equipment apart and move it to the front b,,~oom to rn~ke room for my bed which I also had to ia]ce apart to move, Presently, my l~eadmill is sitting in fronl o£ one efmy closets, which makes it very inconvenient to use that closet. There is no plug there either so I can no longer use my tre~imill. I cannot sleep soundly anywhere in my home because the noise of these fans can be heard in every room including thc basemen! ~xcep! my kitchen. I have spent money and time having my front bedroom wallpapered and conver~ing the hack bedroom into an office and workout room and now mos~ of my workout cquipmen! is unusable because of this arrangement. What once was a beautiful home ia now completely disrupted. I want to be able lo put my bed back ~ ~ front bedroom, which I had wallpapered for ~b. at reason and get my workout room and oftic~ back. I did not heal my back bedroom because I worked out ~h~e and liked it cold. Now I have to heat ~I~ room because ~at is the only place where I can even anemp! to sl~p! This is costing me more money for my electric bills. The back bedroom is also colder than thc front bedroom so it is colder to sleep there. I don't feel that I should have to spend more money to covert these two rooms aEaln to accommodate his problem when it is he who is in violation of the condominium bylaws. Mr. Kolakowski claims he needs these fans to drown out the vibrations in his unit. I should not have to rearrange my home and disrupt my life because Mr, Kol~kowski has a problem. He is in violation of the ~O~a~miurn bylaws an~ in no way should he tx. allowed to cause a problem for his neip21hors to ~cqgr~r,~o.~!~ Ilia m~blem. After talking with you, you ~d Mr. DeCesaris went to Mr. Kolakoski's unit. Afterwards Mr. DeCesaris told rne that he is not only in violation of the condominium bylaws but also building codes. He xold me t~hat ~he wiring of these fans was not safe. This is of ~r~at concern to me. Six families could lose their homes if he is in fact in violation of building code..The condominium association canno~ allow the liability of ~,~_~ otl~, ~o~les' lives in rlanqer bv coudoning Mr. K01~owski'l~ actions. This is or,yen greater concern to me because there is no firewall bet'ween his unk and my home. As you know, hc claims that Suite and I arc cau~in~ a vibralion to his urdt and tha~ is why he is runninlg them, When I spoke with Mr. Kolakow~ki, he told me that be had this same problem when he lived on Trindle Road. As you also know, Suite and I have notking in our homes, which would cause his unit to vibrate. I would be willing to have my home inspected anytime for wha~ he cl-ime is the cause of his problem. After talking with Julie, she told me that she does not hear them as loudly as t do. I believe this is because Julio has a firewall bewveen her unit and Mr. Kolakowski and I do no: have a fLmwall between his ~_~.!t and mine. On Nov~mher 4. you s~n! him a letter siating that he had 30 days to disconnect the fans and discontinue u~ing them. Although the walls of my unit have quit vibrating and he does not run them during the daylight and early evening hours, he has not Mhered to this request. I have enclosed a list of dates and times when I have heard these fans still in operation. It appears that he tums them on around I AM ami offabout ~ AM. The noise is still such that I cannot have my home back in the pr~ious condition as I am still sleeping in the back bedroom. My sloop and life is heing disrupled because of this problem. I feel I have been very tolcrant of this situation but it is to the point where something needs to be done immediately to solve this problem. I am fired of losing sleep. I have a full time demanding job and I go to school at night. My sleep is valuable to me and my job is valuable to me, I understand that when you have neighbors in a condominium you will hear noises but this noise is non-stop, very irritating, and in my opinion unacceptable. Please let me know what you intend to do to solve this problem as I cannot l~t this e. onfinu~ any longer. I will, if need be, seek a lawyer's ~tvice on the ~nublem. Bu! I don't feel that I should need to take time from my busy schedule nor should I have to incur the expense to do this when it is he who is in violation of the condominium bylaws. Veery truly yours, Lou Ann Myers Unit 913 Enclosure Referenc~ Article VII - Usc Restrictions. paragraph 7.1 (a) Exhibit F BYLAWS OF WALNUT VILLAS CONDOMINIUM ASSOCIATION ARTICLE I Introductory Provisions 1.1. Applicability. These Bylaws provide for the government of the Association pursuant to the requirements of Section 3306 of the Act with respect to the Condominium created by the recording of the Declaration among the land records of Cumberland County in Miscellaneous Book Vol..308 and Page .147. 1.2..Definitions. Capitalized terms used herein without definition shall have the meanings specified for such terms in the Declaration to which these Bylaws pertain or, if not defined therein, the meanings specified or used for such terms in the Act. 1.3. Compliance. Pursuant to the provisions of the Act, every Unit Owner -and all Persons entitled to occupy a Unit shall comply with these Bylaws. 1.4. Office. The office of the Condominium, the Association, and the Executive Board shall be located at the Property or at such other place as may be designated from time to time by the Executive Board. 1.5. Incorporation of Statutory Law. Except as expressly provided herein, in the Declaration, or in the Act, the Association shall be governed by the provisions of the Non-profit Corporation Law of 1972 of the Commonwealth of Pennsylvania, 15 Pa. C.S. 7701 et seq., as it may be amended from time to time (the "Corporation Law"). The "Board of Directors" described therein shall be referred to herein and in the Declaration as the "Executive Board." ARTICLE II The Association 2.1. ~. The Association is hereby organized on the date here as a non-profrt corporation. The Association shall consist of all of the Unit Owners acting as a group in accordance with the Act, the Declaration and these Bylaws. The Association shall have the responsibility of administering the Condominium, establishing the means and methods of collecting assessments and charges, arranging for the management of the Condominium and performing all of the other acts that may be required or permitted to be performed by the Association pursuant to the Act and the Declaration. The foregoing .:~'.~ .-~:. · .~.'.~-~,~. x'~"..'..,!~'.l,'...,." c.. ~ ' .-.,~;, :S~':.~.. I'.~'''a~'~': ..... ~ .......... ~.,~..,. ........ .~.,,,...~ ,,,~,. ~ '!.. /-..-.'.~.-.~...ff.:~. ,~.".,? . '~ARTICLE VI'"' '.~.'- · ". -" Compliance and Default 6.1. Relief. Each Unit Owner shall be governed by, and shall comply With all of the terms of the Declaration, these bylaws., the Rules and Regulations and the Act, as any of the same may be amended from time to time. In addition to the remedies provided in the Act and the Declaration, a defauR by a Unit Owner shell entitle the Association, acting through Ils Executive Board or through the Ma[~.[09 Agent, to the fcllowing relief: a. ~. Each Unit Owner shall be liable for the expense of all maintenance, ~ndered I~eoessa his act, nealect or or se Is not covered by the proceeds of Insurance carried by the Executive Board. Such liability shall include any Increase in casualty insurance premium occasioned by improper use, misuse, occupancy or abandonment of any Unit or I~s appurtenances. Nothing contained herein, however, shall be construed as modifying any waiver by any insurance company of Its rights of subrogation. ~'b, __C. 0sts and Attbrn~v's Fees In ~r~ e - - ~n~s arising out of any, P g such reasonable attorney s fees as may be . determined by the court. c. HO Waiver of Riehl. The failure of the Association, the Executive board or of a Unit Owner to enforce any right, provision, covenant or COndition which may be granted by the Declaration, these Bylaws, the Executive Board Rules and Regulations or the Act shall not constitute a waiver of the right of the Association, the Executive Board or the Unit Owner to enforce such rights, provision, covenant or condition in the future, All rights, remedies and privileges granted to the Association, the Executive Board or any Unit Owner pursuant to any term, prevision, covenant or condition of the Declaration, these bylaws,/he Rules and Regulations or the Act shall be deemed to be cumulative and the exercise of any one or more thereof shall not be deemed to con'stJtute an election of remedies, nor shall it preclude the party exarcrslng the same from exercising such other privileges as may be granted to such part by, the Declaration, these bylaws, the Rules and Regulations or the Act or at law or iD equity. d. Abatino and Enioinine Violations bv Unit Own~r~,i The violation of any of the Executive Board Rules and Regulations adopted by the Executive Board, the breach of any Bylaw contained herein or the breach of any provision of the Declaration or the Act shall give the Executive Board the right, In addition to any ether rights: (a) to enter the Unit in which or as to whic~h, such violation or breach WALNUT VILLAS CONDOMINIUM ASSOCIATION Plaintiff KEVIN KOLAKOWSKI Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA :NO. : .* _. MO TION FOR PRELIMIN.4R Y IN JUN CTION Plaintiffmoves for a Preliminary Injunction pursuant to Pa. R. Civ. P. 1531 and sets forth the following in support thereof. 1. Plaintiff has filed a Complaint in Equity alleging that Defendant, as set forth therein, has installed numerous electric exhaust fans throughout his condominium in violation of the Condominium Association's Bylaws and the building and fire codes, and which constitutes a private nuisance due to the noise and fire hazard created by the operation of these fans. 2. Plaintiffs Complaint in Equity is incoxporated herein by reference in its entirety, as though fully set forth at length. A true copy of Plaintiffs Complaint is attached hereto, made a part hereof, and marked Exhibit "A." 3. Despite Plaintiffs demand that Defendant cease the operation of the fans and remove them, Defendant continues to operate them in such a way as to constitute a nuisance to the neighboring residents and a continuing fire hazard to neighboring units. 4. Operation of the exhaust fans serves no legitimate or lawful purpose. 5. Unless the conduct of the Defendant is enjoined and Plaintiffis granted relief as requested, members of the Condominium Association will be irreparably injured in that a. the unreasonable noise emanating from the Defendant's fans at all hours of the day will continue to invade the neighboring owners' and residents' interest in their private use and enjoyment of their residences and cause them significant harm; b. the installation and operation of the fans will continue to pose an unreasonable fire hazard with the potential for causing fire in the affected condominium units. property; b. appropriate. WHEREFORE, Plaintiff requests that a Preliminary Injunction issue enjoining Defendant from operation of the exhaust fans on his granting such further and interim relief as the Court may deem RESPECTFULLY SLrBMITT~ 1Clhca~l~;e Rect°r'/Ernwood ASv~eU~ru;, Suite 203 Camp Hill, PA 17011 (717) 761-8101 Attorney for Plaintiff I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Patdcia Goforth, President/ ,) Walnut Villas Condominiu/~/Association Date: ~/~ ~,~-~/~),~ WALNUT VILLAS CONDOMINIUM ASSOCIATION Plaintiff KEVIN KOLAKOWSKI Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA : : NO. .. _- .NOTICE TO DEFEND AND CLAIM RIGHTS 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 the court your defenses or objections to the claim 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 BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 WALNUT VILLAS CONDOMINIUM ASSOCIATION Plaintiff Vo KEVIN KOLAKOWSKI Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA : : NO. ._ COMPLAINT 1. Plaintiff, Walnut Villas Condominium Association (hereafter "Association"), is a non-profit corporation organized and existing in accordance with the Pennsylvania Uniform Condominium Act, 68 Pa. C.S. § 3101 et. seq. and the Non-Profit Corporation Law, 15 Pa. C.S. § 7701 et. seq., to administer the Walnut Villas Condominiums located in the Borough of Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, Kevin Kolakowski, is a member of the Association and owns and resides in Unit 911 of the Walnut Villas Condominiums, 911 Old Silver Spring Road, Mechanicsburg, Pennsylvania 17055. 3. Plaintiff Association has enacted Bylaws with which all property owners and residents, including Defendant, must comply. 4. In August of 2002, Defendant installed multiple electric exhaust fans in Unit 911 some of which were mounted on walls common to neighboring units. The owners and residents of the neighboring units have complained to the Association about the unreasonable noise created by the running of these exhaust fans throughout all hours of the day and night, and such noise has interfered with the neighboring residents' quiet use and enjoyment of their property in that the residents of the neighboring units have been unable to sleep, read, study, hear the television, or otherwise use and enjoy their property as is their right. 5. On October 26, 2002, Association President, Patricia Goforth and Victor DeCasaris, Construction Manager for The Norwood Company conducted a consensual inspection of Defendant's unit and determined that the fans violate building and fire codes, create fire hazard and serve no legitimate and lawful purpose that could be reasonably ascertained. 6. The installation and operation of the fans violate Article VII of the Condominium Declaration (See Exhibit "A" attached) which reads in relevant part that: "Section 7.1 .Use and Occupancy of Units and Common Elements. The occupancy and use of the Units and Common Elements shall be subject to the following restrictions: (a) No Unit or Common Element (except those Units and offices owned or leased by the Declarant or Executive Board as Administrative Offices, Models, or storage facilities) shall be used for any purpose other than as a private residence for the use of one family consistent with the Declaration, By-Laws and Rules and Regulations promulgated by the Executive Board, _nor shall anything be done therein which may be ~l nuisance to the occupants of neighboring Units." Defendant is further in violation of Article VI of the Bylaws which provides that: "6.1 Relief. Each Unit Owner shall be governed by, and shall comply with all of the terms of the Declaration, these bylaws, the Rules and Regulations and the Act, as any of the same may be amended from time to time."(See Exhibit "B" Attached) 7. The installation of the fans violates the applicable building code requirements of the Borough of Mechanicsburg. 8. The installation and use of the fans pose a serious fire hazard to Unit 911 and the neighboring units. 9. By letter dated November 4, 2002, sent to Defendant by certified mail, Plaintiff Association, by and through its' President, Patricia Goforth, informed Defendant that the installation and operation of the fans violated the building code and Association Bylaws and created a nuisance and fire hazard, and gave Defendant 30 days in which to disconnect all electrical outlets, wiring, and/or apparatus that operate the exhaust fans at issue. (See Exhibit "C" Attached) 10. To date, Defendant has failed to comply with this deadline and has continued to operate the exhaust fans at all hours of the day and night and neighbors continue to complain to the Association Executive Board about this nuisance (see Exhibits "D" and "E" attached). 11. Article VI of the Bylaws (Compliance and Default) further provides in pertinent part that: "In any proceeding out of any alleged default by a Unit Owner, the prevailing party shall be entitled to recover the costs of such proceedings and such reasonable attorney's fees as may be determined by the Court." id at 6. l(b) (see Exhibit "F" attached). 12. Plaintiff Association is entitled to counsel fees and costs in this matter. WHEREFORE, PlaintiffAssociation prays for the following relief: a. An Order enjoining Defendant from operating the exhaust fans and requiting him to disconnect all electrical outlets, wiring and/or apparatus that operate the exhaust fans installed by Defendant. b. An Order requiting Defendant to reimburse the Association for attorney fees and costs. c. Such other relief as the Court in its' sound discretion finds necessary and just. RESPECTFULLY SUBMITTED, Ch~les Re~o~, Esquire 1104 Femv$oolfl_Avenue, Ste. 203 CampHill, PA 17011 (717) 761-8101 Attorney for Plaintiff I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. //. - Patdcia Goforil~, President,/J Walnut Villas Condomini~Association DECLARATION OF CONDOMINIUM OF WALNUT VILLAS CONDOMINIUM Recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, at Miscellaneous Book VoL 308, page 147, as amended by the following amendments recorded in the aforesaid office: Date of Titl.._.~e Date Recorded at R~ecordinq First Amendment 12/31/85 Misc. Book 12/31/85 VoL 313, p. 133 Second Amendment Third Amendment Fourth Amendment Fifth Amendment 3/23~87 6/12/87 11/10/87 4/14/88 Misc. Book Vol. 331, p. 933 Misc. Book VoL 335, p. 283 Misc. Book Vol. 343, p. 368 Misc. Book Vol. 348, p. 868 3/27/87 6/12/87 11/30/87 4/18/88 At such time as the Convertible Real Estate is the maximum number of Units in the Convert/bio Real aggregate will be no more than g4. Al! Units created within the Convertible Real Estate will be restricted exclusively to residential use. Any "' ' Buildings to be renovated or constructed within the Convertible Real Estate and Units therein shall be compatible in quality, size, materials and architectural style with the Buildings and Units on other portions of the Properly. A~I restrictions in this Declaration affecting use, occupancy and alienation of Units shall apply to Units created with the Convertible Real Estate. No assurances are made as to any other Improvements and Limited Common Elements to be made or created in the Convertible Real Estate, nor the proportion of Limited Common Elements to Units therein. The reallocation of Percentage Interests In the Convertible Real Estate and the Property shall be computed as required by Section 2.1 above. ARTICLE VII S USE RESTRICTIONS action 7.1. Use and Occupancy of Units and Common Elemenl,., The occupancy and use of the Units and Common Elements shall be subject to the following restrictions: , (a) No Unit or Common E~ement (except those Units and cf/ices owned or leased by fha Declarant or Executive Board as Administrative.. Offices, Models, or storage facilities,1 shall be used for any purpose other nan as a private residence for the use of one family consistent with the Declaration, I~y-Laws and Rules and Regulations promulgated by the Executive Board, nor shall anything be done th,e in which may be a nuisance ~ the occupants of neighborihg u~it~m' ' ' -- ' (b) The Declarant shall have the irrevocabie dght to use any Units owned or leased by it, Common Elements, (except those assigned as I;imited Common Elements) or offices for sales, administrative or management purposes until it has conveyed title to the last unsold Unit owned by the Declarant, This right shall not be subject to amendment or modification by the Unit Owners. The Executive Board shall have the right to lease the Common Elements 'or Units as such, subject to zoning lease and any other government regulations, upon terms and conditions as established by the Executive Board. (c) Each Unit Owner shall be obligated to maintain his own Unit and keep it in good order and repair, and to replace and repair all air conditioning -~quipment, heating units, and any [andsca~3i,~g located on or 'within his lim[te~ Common. Elements or his Unit. BYLAWS OF WALNUT VILLAS CONDOMINIUM ASSOCIATION ARTICLE I Introductory Provisions 1.1. Applicability. These Bylaws provide for the government of the Association pursuant to the requirements of Section 3306 of the Act with respect to the Condominium created by the recording of the Declaration among the land records of Cumberland County in Miscellaneous Book Vol. 308 and Page 147. 1.2. Definitions. Capitalized terms used herein without definition shall have the meanings specified for such terms in the Declaration to which these Bylaws pertain or, if not defined therein, the meanings specified or used for such terms in the Act. 1.3. Compliance. Pursuant to the provisions of the Act, every Unit Owner and all Persons entitled to occupy a Unit shall comply with these Bylaws. 1.4. Office. The office of the Condominium, the Association, and the Executive Board shall be located at the Property or at such other place as may be designated from time to time by the Executive Board. 1.5. Incorporation of Statutory Law. Except as expressly provided herein, in the Declaration, or in the Act, the Association shall be governed by the provisions of the Non-profit Corporation Law of 1972 of the Commonwealth of Pennsylvania, 15 Pa. C.S. 7701 et seq., as it may be amended from time to time (the "Corporation Law"). The "Board of Directors" described therein shall be referred to herein and in the Declaration as the "Executive Board." ARTICLE II The Association 2.1. Composition. The Association is hereby organized on the date here as a non-profit corporation. The Association shall consist of all of the Unit Owners acting as a group in accordance with the Act, the Declaration and these Bylaws. The Association shall have the responsibility of administering the Condominium, establishing the means and methods of collecting assessments and charges, arranging for the management of~e Condominium and performing all of the other acts that may be required or permitted to be performed by the Association pursuant to the Act and the Declaration. The foregoing · '. -..~' .. :~,~:~..~.~'~-. ~. ,-~-' ..... ' .~ - ....... ~..:.,.-,.;.~. · .=:,~,~ ,.~ ,.. .... .~,~--. . .... ~:.,: .... -~ .-... I '~'~'. ........ , ...... ~. .... £1~-%,-,r~.~.-~.~:~:~M_~..~-_.~.~.~-,~:....~:.~ ,.,...,.~. -.~,~,~..~,,~.::,i.~:~-~.~e,,~.~,..- · "~RTIOLE VI ..... ~.' - · '.' Gornpliance and D~fauit :i 6.'1~; rellf~? Each Unit Owner shall be governed by, and shall comply with all of the terms of the Declaration, these bylaws, the Rules and Regulations and the Act, as any of the same may be amended from time to time. In addition to the remedies provided Jn the Act and the Declaration, a default by a Unit Owner shall entitle the Association, acting through its Executive Board er through the Mal~og Agent, to the fcJlowing relief: a. ~. Each Unit Owner shall be liable for the expense of all maintenance, ~cement _rendered ne~ssa!3Lby his act, ne lect or !,ct o, or e is not covered by the )r ~~. ,,., 9ues~s, mVllees proceeds of Insurance carried h¥ the Executive Board. Such liability shall include any increase in casualty insurance premium occasioned by improper use, misuse, occupancy or abandonment of any Unit or lis appurtenances. Nothing contained herein, however, shall be construed as modifying any waiver by any insuran.ce company of its fights of subrogation I~b Costs an~ Attbrnev - ' . · -~ . s Fee.~. I~nos ansln out _alleged de,suit by e llmf f3wn~r ihe ,-,,.~,~~ g . of'any C. NO Waiver of Riehl. The failure of the Association, the Executive board or of a Unit Owner to enforce any right, provision, covenant or condition which may be granted by the Declaration, these Bylaws, the Executive BOard Rules and Regulations or the Act shall not constitute a waiver of the right of the Association, the Executive Board or the Unit Owner to enforce such rights, provision, covenant or condition in the future. All fights, remedies and privileges granted to the Association, the Executive Board or any Unit Owner pursuant to any term, provision, covenant or condition of the Declaration, these bylaws, the Rules and Regulations or the Act shall be deemed to be cumulative and the exercise of any one or more thereof shall not be deemed to coll'stitute an election of remecfles, nor shall it preclude the party exercising the same from exercising such other privileges as may be granted to such part by the Declaration, these bylaws, the Rules and Regulations or the Act or at law or i[~ equity. n rs of the J The violation of any Executive Board Rules and Regulations adopted by the Executive Board, the breach of any Bylaw contained herein or the breach of any provision of the Declaration or the Act shall gna the Executive Board the right, In addition to any cther rights: la) to enter the Unit in which or as to which, such violation or breach 15 Walnut Vi/las Condominium Associatio,, November 4, 2002 CERTIFIED MAIL Kevin Kolakowski Old Silver Spring Road Mechenic~burg, PA 17055 Dear Mr, Kolakowski: Upon receipt of this letter, you have 30 days in which to disconnect all electrical outlets, wiring, and/or, apparatus that operate exhaust I~ans which-~'ou installed within your unit from the basement to the attic. This extra electric source is not safe to you or your neighbors on either side of you. We are ey.e~ concerned about the potential fire hazard which you have created and the effects of these exhaust fans which are causing your neighbors to deal with an unnecessary nuisance. During my visit with you Friday, October 25, to feel the vibrations you were experiencing, I did not feel anything. On Saturday, October 28, I again visited your unit and had Mr. Victor DeCesaris, Construction Manager for The Norwood Company, accompany me. Mr. DeCesafls looked at the units on either side of your unit and found nothing that would cause a vibration of the magnitude you described. He then looked at your unit. The fans which you have installed do not meet building code requirements. Also, they are the contributing factor to the excessive vibration that your two neighbors are experiencing. This nuisance needs to cease. Again, I want to state that you have 30 days In which to comply or this matter will be turned over to the Board's attorney. 92.1 Old ~ilver $~'ir~g Road, MeoNmic~urg, PA 17055 Tmalumr:, Camte Wien Wok. Iv~il: 717 780-1~3 Kevin Kolakowski -2- November 4, 2002 I have attached a copy of Article VII of the Declaration and a copy of Article VI of the Bylaws for your information. Sincerely, Patrlcla Ooforth President Enc8. cc: C. Rector, Eaq. L. Myers J. Weiker Direct (~uery - ~u~ran~t Pagc 1 of I Thl~ Item wea delivered on 11/14/~ at 12:11. Bigni~ture: ~ldreal: Enter Request Type and Item Number: Quick Search · ~xt~nslve 6eerch C Inquire o~ mullJgl~Jtam~ Go to the Produot TrMkklg b-'y~tem Horn P_e..~ig~. 2003 0 cLameo~ " January 8, 2OO3 Pat Goforth Walnut Villas Condominium Association 921 Old Silwr Springs Road Mechanicsburg, PA 17055 Dear Pat: I am writing this letter beceus~ I have a g~r. at concern for myself and the other residents in this row of units regarding the situation vdth Mr. In August 2002 hc had installed fans on the walls of his un/t, which is the unit next to mine. As I was cleaning my bathroom one day I could hear him drilling and plastering. When I was cleaning th~ front bedroom, I heard the same noises, i didn't give it much thought until less than a week later the problem started, I heard faro atoning constantly from 7:00 p.m. at night tardl 7:15 a.m. every day. On ~w~c?ead.s, .tMy ,were non-stop. They wcrc not only loud but they vibrated my walls. .w~mout being aole to know where he has these fans, my guess by the vibmlion 'and noise is on the basement wa/l, two on the living room wall, and two on the from bedroom walls. After confronting Mr. Kolakowski about the situation and not being able to come to a solution, I phoned the Mechanicsburg police for advice on how to aolv¢ thc problem. Thcy told me that it was a civil problem and not a criminal problem and I should report it to the association, which I did in October. In the beginning, them vibrations weze so annoying to me that I could not hear my television above tho constant humming of fans. I had to move my sofa away from the wall towards his unit because 1 could not concentrate above the noise when I sat on the sofa to study. I moved my telovisioa to the Side of the living room towards his unit in hopes that',he television would drown out thc sound oft.he fans but to no avail. My living room is now arranged in such a wa). that is not accommodating or apl~..aling to me. Not only have I had to rearrange my living room but my upstairs also. The noise of tlg~e tans a~e so irritating that [ had to move my bed out of the from bedroom into thc back bedroom because I could no! get to sleep at night. For some reason, the noise is not as loud in the back bedroom. I don't believe b0 has any fans installed on that wall but the noise emanating from thc bathroom wall can still he heard in that room. Therefore, this does not solve the problem as they still wake me in the middle of the night. Moving my bed has cat~sed me great disruption. I have a cable line and telephone line in the back b~room, which I need for my computer. Therefore, ! could not move my .computer or television out of the back bedrcom and ~lerefore, ~mnot move my dressers tutu thc back bedroom. I bad a workout room and office setup in the back bedroom. I had to lake some of my workout equipment apart mad move it to the front bedroom to make room for my bed which ! also had to take apart to move. Presently, my treadmill is sitting in front of one of my closets, which mal~s it very inconvenient to use that closet. There is no plug there either so I can no longer use my treadmill. I cannot sleep soundly anDvhcre in my home because the noise of thee fans can be heard in every mom including the basement except my kitchen. I have spent money and time having my front bedroom wallpapered and conv~ing the back bedroom into an office and workout room and now most of my workout equipment is unu.~ble because ofth/s arrangemenL ~Jat once was a beautiful home is now completely dismpled. I wan! to be able to put my bed back into the front bedroom, which I had wallpal~r~l for that rcaaon and icl my workout worn and of/icc back. I d/d not heat my back bedroom because I worked om there and liked it cold. Now I have lo heat that room because ~ is the only place where I can even attempt to sleep! This is costing me more money for my electric bills. The back bedroom is also colder than the front bedroom so it is colder to sleep there. I don't feel that I should have to spend more money to covert these two rooms a~aia to accommodate his problem when it is be who is in violation of the condominium byla'~. Mr. Kolakowski claims he needs these fans to drown out the vibrations in his unit. I should eot have to rearrange my home and disrupt my life because Mx. Kolaimwski has a problem. ~ is in violation of the ~:OndO__mJlllll bylaws a~ in no way should he b, allowed to _~,~,e a oroblem for hi~ neighbors to ~mmodat~ his PI'obtain. After talking with you, you and Mr. DeCeaaris went to Mr. Kolakoski's unit. Afterwards lVlr. D~Cesaris told me that he ia not only ia violation of the condominium bylaws but also building codes, lie told me that the wiring of these fans was not safe. This is of great concern to me. Six families could lose their homes if he is in fact in violation of building code. The condominium association ~mnot allow the liability of pum_'_~ otl-,c~ ~eoples'~iv~s in dsa~¢r bv eon.dgain~ Mr. Kolakowski'~ sa_!~.s. This is of even greater ¢on(~rn to hue ' becaus~ ~ere ~s no firewall between his trait and my home. As you know, he claims that Julie and I are causing a vibration to his unit and that is why he is running them. When I spoke with Mr. K. olakowaki, he told me that he had this same probk:zn ;vhen he lived on Trindle Road. As you also know, Suite and I have nothing in our homes, which would cause his unit ~o vibrate. I would be willing to have my home inspected maytime for what he claims is the cause of his problem. Al%r talking with Sulie, she told me that she does no! hear thc~ as loudly as I do. ! believe this is became Julic has a fu'ewa/l between her unit and Mr. Kolskowski and I do not have a firewall between his ~_~t and mine. On November 4, you sen! him a letter stating that he had 30 days ta disconnect the fans and discominue using them. Although the walls of my unit have quit vibrating trod he docs not run them during the daylight and early evening hours, he has not adhered to this request. I have enclosed a list of dates and time~ v,4-ien I have heard these fans still in. operation. It appears that he turns them on around 1 AM and offabout 5 AM. The noise is still such that I cannot have my home back in the prcrious condition as Iarn still sleeping in the back bedroom. My sleep and life is being disruplcd because of this problem. I f~el I have been very tolerant of this situation but it is to the point where something neods to be done immediately to solve this problem. I am tired of losing sleep. I have a full time demanding job and ! go to school at night My sleep is valllable to me and my job is valuable to me. I understand that when you have neighbors in a condominium you will hear nois~ but ~ noise is non-stop, very irritating, and in my opinion unacceptable. Please let me know what you intend to do to solve this problem as I cannot let this continue any longer. I will, if need be, seek a lawyer's advice on the problem. But I don't feel that I should need to take time from m)' busy schedule nor should I have to incur the expense to do this when it is he who is in violation of the condominium bylaws. Very truly yours, Lou Arm Myers Unit 913 Enclosure Reference Article VII - Usc Restrictions, paragraph 7.1 (a) 11/9 6:30 AM 1UI0 3:45 AM 11/11 3:00 & 6:00 AM 11/12 3:45 AM 11/13 I was out oftown 11/14 7:50 PM I I/15 3:45 & 7:45 AM 11/16 I was out of town 11/17 2:30 & 6:00 AM 11/18 5:00 AM 11/19 12:00 Midnight & 5:30 AM 11/22 5:45 11/23 I was out of town 11/24 1 was out of town 11/27 3:00 AM 11,/28 7:15 AM 11/29 thru 12/9 He was out of town 12/11 5:30 AM 12/12 I was out of town 12/13 6:45 AM 12/14 7:00 AM 12/15 3:45 AM 12/19 4:45 AM & 5:45 AM 12/20 6:30 AM 12/21 2:30 AM 12/22 3:30 & 7:00 AM 12/23 2:30 AM 12/24 & 12/25 I was out of town 12/26 6:30 AM 12/27 &28 I was out of town 12/29 He was out of town 12/31 5:00 AM 1/1 I was out of town !/4 5:15 AM 115 1:00 AM Thcy arc cominuing to run. I have just stopped kcc'ping track of it because as you can see it appears to be ~vcry nigh~. BYLAWS OF WALNUT VILLAS CONDOMINIUM ASSOCIATION ARTICLE I Introductory Provisions 1.1. Applicability. These Bylaws provide for the government of the Association pursuant to the requirements of Section 3306 of the Act with respect to the Condominium created by the recording of the Declaration among the land records of Cumberland County in Miscellaneous Book Vol..308 and Page _147. 1.2. Definitions. Capitalized terms used herein without definition shall have the m~anings specified for such terms in the Declaration to which these Bylaws pertain or, if not defined therein, the meanings specified or used for such terms in the Act. 1.3. Comp iance. Pursuant to the provisions of the ACt, every Unit Owner -and all Persons entitled to occupy a Unit shall comply with these Bylaws. 1.4..Office. The office of the Condominium, the Association, and the Executive Board shall be located at the Property or at such other place as may be designated from time to t/me by the Executive Board. 1.5. Incorporation of Statutory Law. Except as expressly provided herein, in the Declaration, or in the Act, the Association shall be governed by the provisions of the Non-profit Corporation Law of 1972 of the Commonwealth of Pennsylvania, 15 Pa. C.S. 7701 et seq., as it may be amended from time to time (the "Corporation Law''). The "Board of Directors" described therein shall be referred to herein and in the Declaration as the "Executive Board." ARTICLE Ii The Association 2.1..Composition. The Association is hereby organized on the date here as a non-profit corporation. The Association shall consist of all of the Unit Owners acting as a group in accordance with the Act, the Declaration and these Bylaws. The Association shall have the responsibility of administering the Condominium, establishing the means and methods of collecting assessments and charges, arranging for the management of the Condominium and performing all of the other acts that may be required or Permitted to be performed by the Association pursuant to the Act and the Declaration. The foregoing ~mpliance a~ De~uit 6.1. ~elJe~. Ea~ Unit Owner shall ~ governed by, and shall ~mp~ With all of the terms of the Declaration, ~ese bylaw, the Rules and Regulations and the A~, as any of the ssme may be amended Jrom time to time. In addition to the remedies provided Jn the Act and the Declaration, a defau~ by a Un~ ~ner shall enliUe the A~ocialion, a~ing through its ~ecu[ve Board or through the Ma~,g A~ent, to [tie following relief: a. ~. Each Un}t ~er shall ~ liable for ~e expense of all maintenan~. ~ir or re-~ .... . ~,~,essne~ o:ni: tenants, guests, or Jcen~, buFonly to the e~ent that such e~ense is not ~vered by the pr~e~s of Insurance carried by the ~ecuflve Board. Such Jiablll~ shall Jn~ude any tncmase in casual~ }nsuran~ Premium Oc~sb~d by improper ~e, misuse, o~upan~ or aband~ment of any Unit or Ils apPu~enan~s. Nothing ?ntain~ herein, h~er, shall be const~ed as m~J~ing a~y waiver by any :nsumn~ company of l~ righ~ of subrogab~ ~ Costs and ' . ' ' oete~:n~ by the ~u~. ~orne~s tees as may be c. ~ Waiver of Riehl. ~e failure o~ the Asso~ation, ~e Execute board or of a Un~ ~ner to e~force any ~ghl, Provision. ~venant or ~ndi~on which may be gmnt~ by ~e De,station, ~ese BylaW: ~e ~e~ve Boar~ Rules a~d R~ulaffo~s or the ~ shall not ~nst~u~ a ~iver of ~e dght of the ~so~ation, the Exec~ive Board or the Unit ~er to ~for~ su~ p~slon, ~venant or condition h ~e ~tum. All ~ghts. r~s and pdvil~as granted to the Association: the E~cut~e Boa~ or any Unit ~ner pursuant ~y te~, prov~ion, covenant or ~ndi~n of the De,station, these bylaw, Rul~ ~d Regulafi~s or ~e A~ shall be deem~ to be cumulate and ~e exer~ ~ any one or ~m ~ereef shall not be deemed to console e[e~ion of m~dies. ~r shall it Preclude ~e pa~ exerc/slng the same from ~ercising s~ other prMleges as may be gmnt~ to Such pa~ by ~e Declaration. these b~, the Rules and Regula~ns or the A~ or at law or ip d. ~and Enj~nJ~q ViqJ~ions by ~n~ ~r~ The ~olatJon of any o~ ~he ~u~ve Boa~ Rut~ and Regulations adopted bythe Execul~e Board, the breach of any B~ c~tained heroin or the breach of any provision of ~e Declaration or ~e Act shall g~e the Executive Board the Hght, In addition to cther rights: (al to enter the Unit Jn Which or as t~ w~j~, such v[oiation or breach 15 WALNUT VILLAS CONDOMINIUM ASSOCIATION Plaintiff V. KEVIN KOLAKOWSKI Defendant : IN TI-1E COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA : : NO. 03-677 .4FFIDA FIT OF SER VICE I, Matthew Hunt, Private Investigator, hereby certify that I personally served the Civil Complaint in the above-referenced matter to Kevin Kolakowski, Defendant, on ~, Oq~~ ~, 2003, at approximately ~,'_C.5~' o'clock f~ .m. Date: '~/,~ ~/t~.~ Matthew Hunt WALNUT VILLAS CONDOMINIUM ASSOCIATION Plaintiff V. KEVIN KOLAKOWSKI Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA NO. 03-677 SETTLEMENT AND R~;~ F:_4SE A GRF-F_MENT THIS SETTLEMENT AND RELEASE AGREEMENT is made this/) C/%ay of March, 2003, by and between Plaintiff, Walnut Villas Condominium Association ("Association") and Defendant, Kevin Kolakowski. The Association and Defendant have mutually agreed to settle the above-captioned litigation in accordance with the terms and conditions as herein below stated: 1. Association and Defendant agree that the above-captioned litigation shall be settled in consideration of Defendant's agreement to pay Association the sum of $2,000.00. 2. Association and Defendant agree that the sum of $2,000.00 shall be paid in installments as follows: a. $200.00 upon execution of this Agreement, receipt of which is hereby acknowledged by the Association; and b. $300.00 for six (6) consecutive months commencing April 15, 2003, until the remaining balance is paid in full with payrnent to be received by Charles Rector, Esquire, counsel for the Association, on or before the 15th day of each of the six consecutive months hereafter. 3. Defendant agrees to immediately disconnect and remove any and all electrical exhaust fans and other noise producing electrica~l or non-electrical devices from his Unit upon execution of this Agreement. The Association reserves the right, within thirty (30) days of the date of this Agreement, to inspect Defendant's premises with a construction expert of its' choosing and Defendant h~ereby consents to such inspection at times to be agreed upon by the parties. Defendant acknowledges that full cooperation with this inspection is a specific condition of this Agreement. 4. Defendant agrees to immediately repair all "common walls" within his Unit which are defined as walls adjacent to neighboring Units and to refrain from installing electrical exhaust fans and other noise producing electrical or non-electrical devices without prior approval of the Association Board of Directors. Defendant shall not otherwise engage in conduct which constitutes a nuisance and/or a violation of Condominium Rules and Regulations. 5. Defendant agrees that the Association shall have the right to re-list this matter for trial, without regard to this Agreement, in the event that Defendant should default in his obligations pursuant to this Agreement. 6. Upon the payment in full of the amount due and following the abatement of the conditions giving rise to this lawsuit, the Association shall cause this case to be marked "Settled and Discontinued" of record and shall provide evidence of same to Defendant within fifteen (15) days after the receipt of the last payment due. 7. Further, the Association and Defendant agree that upon satisfaction and completion of the terms of this Agreement, each party does mutually release the other from and against any and all claims, causes of action, liability, responsibility and/or damages which either may have or could have had against the other arising out of this subject matter of the above-captioned case. 8. Defendant has been advised that Chades Rector, Esquire, represents the Association only and has been further advised of his dght to retain counsel of his choosing pdor to executing this Agreement and Defendant waives that right and knowingly, voluntarily and intelligently enters into this Agreement. 9. The parties hereto agree that this Settlement and Release Agreement shall be filed of record in the above-captioned case with a request that the Court enter the Order attached hereto in furtherance of this Agreement. IN WITNESS WHEREOF, the parties have hereunto set forth their hands and . ~~~ending to be legally bound thereby on the day an~year__first abov~written. ~/aatlr inC~viGIla°fs°~h(~nl~omib, jufn Associaresid'e'nt) tion Cl~'~rles Re/~ri lesqui'~e Kevin Kolakowski COMMONWEALTH OF PENNSYLVANIA ) ) SS: COUNTY OF CUMBERLAND ) On this .1~-1%ay of ~{"'~C~(.'~ ,2003 before me a notary public, the undersigned officer, personalJy appeared Patricia Goforth and Kevin Kolakowski, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed same for the purposes therein contained. In witness whereof, I hereunto set my hand and official seal. No[ary ~ubli,~,~ ' -- ~ ~ ' . .. P~ lC ~Lc "cF..'!:., T'.'~% L'.L:.. ;? ~.n, ,.,~.unty E,..~ 3:..~.~::--,:,!.!?:~ ~,.,.,:.::::~.~ ,?,y 5, 2006 CT. O') ~. WALNUT VILLAS CONDOMINIUM ASSOCIATION Plaintiff V. KEVIN KOLAKOWSKI Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA : : NO. 03-677 .- .- pRDER AND NOW, this .~~ day of March, 2003, upon consideration of the Settlement and Release Agreement entered into by Walnut Villas Condominium Association and Kevin Kolakowski in the above-captioned matter, it is hereby ORDERED and DECREED that this Court shall retain jurisdiction of this matter and should Defendant, Kevin Kolakowski, default in his obligations under the Settlement and Release Agreement, Plaintiff, Walnut Villas Condominium Association, shall have the right to re-list this matter for trial without regard to this Settlement and Release Agreement. Edward E. Guido, J. WALNUT VILLAS CONDOMINIUM ASSOCIATION Plaintiff V= KEVIN KOLAKOWSKI Defendant :IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA : : NO. 03477 PRAECIPE TO THE PROTHONOTARY: Please mark the above-captioned matter as SETTLED and DISCONTINUED. Date: RESPECTFULLY SUBMI']-I'ED: Charles Rector, Esquire 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Attorney for Plaintiff