HomeMy WebLinkAbout98-06502
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HOPEWELL TOWNSHIP
BOARD OF SUPERVISORS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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V.
LANARK INVESTMENT FUND NO. 98-6502 CIVIL TERM
CIVIL ACTION - LAW ~
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HOPEWELL TOWNSHIP IN THE COURT OF COMMON PLEAS OF
BOARD OF SUPERVISORS CUMBERLAND COUNTY, PENNSYLVANIA
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V.
MEADOWLAND HOLDINGS NO. 98-6503 CIVIL TERM
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CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this
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day of APRIL, 1999, upon
consideration of the attached petitions, IT IS ORDERED AND
DIRECTED AS FOLLOWS:
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(1) A Rule is issued against Plaintiff to show cause why the
requested relief should not be granted.
(2) Plaintiff shall file an answer to the Motion within
,
fifteen (15) days of service.
(3) The Motion shall be decided under Par Rule of civil
Procedure 206.7.
(4) Any depositions shall be completed within forty-five
(45) days of this order.
(5) Briefs shall be filed in chambers and argument shall be
held Thursdav. Ju1v 8. 1999. at 1:30 p.m. in Courtroom #5
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Cumberland County Courthouse, Carlisle, Par
(6) Notico of tho ontry of this order along with a copy of
the Motion shall bo provided to all parties by Plaintiff.
..-......"
By tho Court,
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Edward E. Guido, J.
Sally Winder, Esquire
For the Plaintiff
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Lee A. Stivale, Esquire
For the Dofendant
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JACKSON. CA V ANAGII & STIV AU:. ".c.
BV: U:E A, STIV AU:. ESQUIRE
ION 46~ \I
MILLS OF VICTORIA
SUITE 301
1489 J1At.TIMORE I'IKE
SI'IUNGFIELIl.I'A 19111t4
(611I) 6114-49711
Attorncy for Ilcfcndool
COURT OF COMMON I'LEAS OF CUMIJERLAN[) COlINTY, I'ENNSYLVANIA
CIVIL ACTION
HOPEWELL TWP HOARI) OF SUPERVISORS
257 NEWIJUR(; ROAI)
NEWBURG, PA 17240
Plaintiff
v.
No. 9S-6502 CIV[L TERM
LAN ARK INVESTMENT FUND
2331 D2 EAST AVENUE S 247
PALMDALE, CALIFORN[A 93550
[)cfcndant
ORI)ER
AND NOW, this
day of
, 1999 upon consideration of
Petitioner's Petition to Toll Pcr Dicm Fine and Respondent's Responsc thereto. it is hereby
ORDERED that Petitioner's Petition is GRANTED. It is furthcr ORDERED that the tolling of
the per diem line be retroactivc to the date of Judgmcnt in the District Court. to wit, Novcmber
16,1998.
By the Court:
.1.
JACKSON, CAVANAWI & STIVAU:,I'.C.
IIY: U:.: A, STIV AU:, ES(}t1I1U:
IUN 46~11
MtLLS OF VICTORIA
SUITE 301
1489I1AI.TIMOIU: I'IKF.
SI'llINGFIF.L!).I'A 11)0(,4
(610) 604-4970
Allorne. ror !)orondant
COUltT OF COMMON PLEAS OF ClJMHERLANI> COUNTY,PENNSYLV ANIA
CIVIL ACT[ON
HOPEWELL TWI' HOARD OF SUPERVISOIlS
257 NEWHURG ROAI)
NEWBURG, PA 17240
Plaintiff
,'.
No. 98-6502 CIVIL TERM
LAN ARK INVESTMENT FUND
2331 D2 EAST A VENUE S 247
PALM DALE, CALIFORNIA 93550
Defendant
PETITION TO TOLL PER DIEM FINE
Petitioner by and through its counsel, Jackson, Cavanagh & Stivale, ("C., hereby tilcs this
Petition and in support thcreof states the following:
1. Lanark Investment Fund received a citation from Hopewell Township regarding a
zoning violation on January 23, 1998.
2. On November [6, [998, default judgment was entered against the Defendant in the
amount of$600,00 per day by District Justicc Perkins of the Magisterial District
Court 09-3-0 [.
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3.
Defendant filed an appeal from the aforemcntionedjudgment on November 24,
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I'lailllilT tiled a ('omplainlllnlkccmh,'r II. ll)l)H in rcsponsc 10 Iklcndalll's
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appcal.
5. Delcndmlllilcd:1I1 Answcr Illl'lainlilrs Complaint on April 7. 1999.
6.
Alicr liIing thc Answcr 10 I'laintilrs Ctlmplainl. it was discovcrcd that Dclcndant
docs not own thc property in disputc in thc instant litigation,
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7. Defcndant has filcd an Amcnded Answcr stating its discovery of non owncrship of
the land in dispute in Ihis matter.
8. This litigation. which commcnccd live months ago, was in rcsponsc to thc
judgment entcred on Novcmbcr 16. 1998.
9. Lengthy litigation will prcjudice the rights of the Defendant if the per dicm fine is
not tolled.
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10. 53 P.S. *J0617.2(a) provides that "any person... upon bcing found liable [for
violation of a Zoning Ordinance] in a civil enforcement proceeding commcnced by
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a municipality, [shall] pay ajudgment of 1101 more than Five Hundred ($500.00)
Dollars plus all Court costs. including reasonable attorney fees incurred by thc
municipality as a result thereoL"
II. Judgment against the Defcndant was for Six Hundred (600.00) Dollars per day in
violation of 53 P,S. * 10617.2(a).
12, Pursuant to the Municipalities Planning Code. 53 P.S. *10617.2(b), "the Court of
Common Pleas, upon Petition. may grant an Order of Stay, upon cause shown,
tolling the per dicm tine pending a final adjudication of the violation."
,.~
JACKSON. CA V ANA<at & STIV AU:. I',e.
IIV: U:.: A, STIVAU:. ESQIJIIlE
IIln 46~ II
flV: TONI U:E CA V ANAGI!. ESQIIJIU:
IIlU 77/,011
MIJ.I.S Of' Vln'OIUA
SUln:JIII
148911ALTIMOItE I'IKE
SPRINC;FIELD,I'A 19064
(610) 604-4970
Atloroev ror lIerendunl
COURT OF COMMON ['LEAS OF CUI\IIIEltLAN[) COlJNTY,l'ENNSYI.V ANIA
CIV[L ACTION LAW
HOPEWELL TWP nOARI) OF SUPERV[SOItS
257 NEWBURG ROAI)
NEWBURG, PA 17240
Plaintiff
v.
No. 911-6502 CIV[L TERM
LAN ARK INVESTMENT FUN I)
233102 EAST AVENUE S 247
PALMDALE, CALlFORN[A 93550
Defend:lllt
VER[F[CA T[ON
I. Lee A. Slivale, Esquire. allorney for Defendant. hereby verily that the facts in the
foregoing Petition to Toll Per Diem Fine arc true and correcllo the best of my knowledge.
informalion. and belie!: The statements made therein are made subject to 18 I'a. C.S. 4904.
regarding Unsworn Falsification to Authorities and the penalties related thereto.
"
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Lee tivale, EsqUl
Attorney for Defend:lllt
JACKSON, CA V ANAWI & sn~ A!.E. I',e.
IIV: U:.: A, STIV AU:. ESQIJIIU:
IIlN -I6~11
IIV: TONI!.EE CAVANAWI. ESQIIIIlE
IIlN 77(,(10
MIU.'; OF VICTOlllA
SUITEJOI
I-IS91IAL.TIMOltEI'IKE
SI'IUNGFIEL.lI,I'A 19064
(610) 60-1--1970
Altornov for ner.nduo.
COURT OF COMMON I'LEAS OF ClJI\IIlERLANU CO\lNTY, I'ENNSYL V AN[A
ClV[L ACT[ON LA W
HOPEWELL TWI' BOARI) OF SUI'ERV[SORS
257 NEW8URG ROAI)
NEWBURG,I'A 17240
1'llIintiff
)
v.
No. 98-(,502 CIV[L TERM
LAN ARK INVESTMENT FUN[)
2331 D2 EAST A VENUE S 247
PALMDALE, CALIFORNIA 93550
I)efendant
VERIFICATION
[, Lee A. Stivale, Esquire, attorney for Defendant. hereby verify that the facts in the
foregoing Amended Answer are true and correct to the best of my knowledge. information, and
belief. The statements made therein arc made subject to 18 Pa, C.S. 4904, regarding Unsworn
Falsification to Authorities and the penalties related thereto,
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Lee A. Stivllle, Esqul
Attorney for Defendllnt
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.1 OF SlfPf:RVISORS.
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IN TilE COIiRT OF COMMON PLEAS OF
ClIMOf:RI.ANI> COIINTY
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, I.ANARK INVESTMENT niNO.
il l)efendanl5
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CIVIL ,\CTION - LAW
Nlfl\tIIER: 98. 65.0Z CIVIL TERM
PLAINTIFF'S REPLY TO NEW MATTER
COMES NOW, the Plaintiff. Hopewell Township Board of Supervisors. by and through
its counsel, Sally J. Winder. Esquire. and docs reply to Defendant's New Matter as follows:
19.
DEN [ED, After reasolljlble investigation. Plaintiff is without knowledge as to
whether or not Defendant. Lanark Investment Fund. is engaged in crop farming
and therefore demands strict proof of the truth of the averment at trial of this
matter.
20,
DENIED, Plaintiff lacks the specific knowledge as to the truth offalsehood of the
statement and therefore denies the averment and demands strict proof thereof at
the trial of this matter. The statement that crop dusting is an accessory use to the
permitted use of crop farming is a legal conclusion to which no responsive
pleading by Plaintiff is required,
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21.
DEN[ED in part and ADMITTED in part, ADM[TTED to the extent that Jeffrey
Danner. the Township Zoning Officer, did have some knowledge of some grading
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activity at the subject property II is denicd Ihatthe Township Zoning Ofliccr
"approved" thc grading or that he detcrmined thc grading was done to alleviate
erosion and storm water run.olfs I'laintilTlaeks specific knowledge as to whether
or not Kim Falvcy, of Soil Conscrvation, had any knowledge or approved certain
grading occurring on the property to alleviate erosion and storm water run-olT and
therefore denies the averment, demanding strict proof thereof at the trial of this
matter, I'laintilT is without specific knowledge as to whether or not similar grading
activities occurred on this subject property and on other properties within
Hopewell Township and Cumberland County and therefore denies such averments,
demanding strict proof thereof at trial of this matter. It is denied that the Zoning
Officer ever had any conversation or made any statements to the Defendant,
Lanark Investment Fund, concerning any activities conducted on the property and
the applicability of the Hopewell Township Zoning Ordinance to such activities,
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22,
ADM[TTED in part and DEN[ED in part, ADMITTED that there are areas on
the property which constitute a landing strip and run-up pads which do provide for
the safe use of a private airplane when properly used, DENIED that there is no
landing strip at 401 Shippensburg Road, On the contrary, it is alleged that an
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airplane landing strip exists and is used as such on an ongoing, regular basis and
the use, as observed, has never been for crop dusting, Whether or not the use
constitutes a private airport is a conclusion oflaw to which no response is
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27
28
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DENIED The averments ofl'aragraph 27 arc conclusions of law to which no
response is necessary and therefore the same are specifically denied
DENIED The averments of Paragraph 28 arc conclusions of law to which no
response is necessary and therefore the same are specifically denied, To the extent
that the averments of Paragraph 28 arc not dccmed conclusions of law, Plaintiff
lacks specific knowledge from which to determine the truth or voracity of the
averments and therefore strict proof of the same is demanded at trial of this matter.
29,
DEN[ED as stated On the contrary, Plaintiff believes and therefore avers that the
premises at 40[ Shippensburg Road, Hopewell Township, Cumberland County,
Shippensburg, Pennsylvania, consist of a residential farmhouse, outbuildings, a
barn, and other improvements, as well as open field and other space,
30,
DENIED, The averments of Paragraph 30 are a conclusion oflaw to which no
pleading is necessary and therefore the same are specifically denied, To the extent
that the averments of Paragraph 30 may be deemed not to be conclusions oflaw,
Plaintiff denies any intention on behalf of the Board of Supervisors to permit
private airports and airplane landing strips in all areas within the Township
boundaries,
31.
DEN[ED, The first sentence of Defendant's New Matters in Paragraph 31 is a
conclusion oflaw to which no response is necessary and therefore the same is
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spccifieally denied The second sentenec of Paragraph 31 of Defendant's New
Matter is denied The second sentence of Paragraph 31 of Defcndant's New
Matter is likewise a conclusion oflaw as to the definition of an airpon or landing
strip is defined by State Statute and the Plaintiff is without specific knowledge to
form a belief of the accuracy of such statement and conclusion of law and therefore
specifically denies the same, dcmanding proof thereof at trial of this matter
DENIED, On the contrary, the existence of the airplane landing strip and the
presence of the airplanc landing strip on this panicular premises at 40 I
Shippensburg Road, Hopewell Township, Cumberland County, Shippensburg,
Pennsylvania, as it is presently used and has been used in the past does constitute a
private airpon and airplane landing strip,
DENIED, The averment of Paragraph 33 states a conclusion oflaw to which no
response is necessary and therefore the same is specifically denied,
DENIED, The averments of Paragraph 34 are conclusions oflaw to which no
response is necessary and therefore the same are specifically denied, To the extent
that the averments of Paragraph 34 are deemed not to be conclusive, Plaintiff
specifically believes and therefore avers that a tlat strip and area which is used by
an airplane for landing does constitute an airpon landing strip and therefore does
constitute an airport within the meaning of the Pennsylvania State Statute and
regulations governing licensing and operation of private airports,
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I Plaintiff and against the Defendant awarding all attorney fees, litigation expenses, and civil
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35
DENIED. The averments ofl'aragraph 35 are a conclusion of law 10 which no
response is necessary and therefore Ihe same is specifically denied
36
DEN[ED, The averments ofl'aragraph 36 are conclusions oflaw to which no
pleading is necessary and therefore the same are specifically denied,
37,
DEN[ED, The averment ofl'aragraph 37 is a conclusion of law 10 which no
response is necessary and therefore the same is specifically denied,
38,
DENIED, The averment ofl'aragraph 38 is a conclusion of law to which no
response is necessary and therefore the same is specifically denied,
WHEREFORE, Plaintiff prays this Honorable Court order judgment in favor of the
assessments for daily violations as set forth in the original Complaint.
Respectfully submitted,
J~
SALLY J WINDER, ESQU[RE
Solicitor for the Board of Supervisors of Hopewell
Township, Cumberland County
70 I East King Street
Shippensburg I' A 17257
(7] 7) 532 - 9476
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! I Cumberland County, Pennsylvania. verify that the statcmcnts made in the foregoing Plaintitl's
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"ERIF[CA TION
I. Marlin D Hoovcr. Chairman ofthc Board of Supervisors ofllopewell Township.
Reply to New Maller arc true and correct to the best or my personal knowlcdge and belief [
understand that false statements herein are made subject to the penalties of 18 Pa, c.s, Section
4904. relating to unsworn falsification to authorities
Date L-f!2,z)11
')11:> J..;\ iJ. I-frx..c.-'U\.
MARL[N D. HOOVER
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SALLY J. WINDER
A 1I0mey ul Luw
701 E. King Street
Shipperu-burg, PA 17257
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,I IJclendant, I.anark Inl'cstmcnt hnld, ,s the entlly dC"!lnated as uwncr uf pwperlY
known and numbcrcd as Lut Nu 2, -IU I Sluppcnsburg Ruad. I tupewcll Tuwn,lup. Shippcnsburg.
Pennsylvania by Oecd datcd August 15. 19\17. and recordcd mthe Cumbcrland County Recorder
of Occds Ollice Oeed Hook Volume I b-l, Pagc l}l)-I. Septcmbcr 23. 1\1\17 as more complctely
shown on a Oeed Irom Melvin S Ileam and Anna /0.1 Hcam. husband and wile. marked Exhibit
"A". all ached herelo and incorporatcd hcrein by rclercnec
4, The property known and numbered as Lot No 2. 401 Sbippensburg Road.
Shippensburg. Hopewell Township. Pennsylvania lies in the Agricultural Zone of Hopewell
Township,
5, Private airports and airplane landing strips arc not permilled uses in the
Agricultural Oistrict under the terms of Hopewell Township Zoning Ordinance, Article 4,
6, On or about Mayor June, 1997. and continuing during the summer months of
1997, predecessors in title. Melvin S, I:leam and Anna M, I:leam. his wile, constructed or
permitted to be constructed and installed upon the property known and numbered as 40 I
Shippensburg Road, Shippensburg, Hopewell Township, Cumberland County. Pennsylvania. an
airplane landing strip and private airport,
7, Initial construction and installation of the private airport and landing strip occurred
at a time while Melvin and Anna I:leam, husband and wile, and prdecessors in title were record
owners of the property known as 40 I Shippensburg Rd,. Shippensburg. Pennsylvania,
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airport and landmg strip and change of the use ofthat land Ii-om agricultural land to airport and
landing strip use
14 A Zoning violation Enforcement Notice was served upon Defendant January 23,
l'J'Jll, A copy of that notice is attached hereto, marked Exhibil "B," and incorporated by
reference,
15, No appeal of the Enforcement Notice was tiled with the Zoning Hearing Board of
Hopewell Township,
Ib, Pursuant 10 the terms of the Hopewell Township Subdivision and Land
Development Ordinance, enacted June I 'J'J I, no grading, excavating. change in contours, removal
or destruction of topsoil, trees, or vegetative cover may be commenced unless and until a land
development plan has been approved by the Board of Supervisors and recorded,
17, No plan for land development was ever submitted to Hopewell Township by
Defendant or its predecessor in title, thus no approval tor land development has ever been granted
tor an airplane landing strip or private airport,
18, Defendant has violated the Hopewell Township Subdivision and Land
Development Ordinance by failing to obtain plan approval prior to the installation of macadam for
the airplane landing strip and private airport which constitutes ongoing construction which altered
the contours, and required grading and excavating on the property all of which constitutes site
improvements requiring prior land development plan approvaL
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WHEREFORE. Plainllll' prays this Honorablc l 'oun enter Judgemcnt m limJ[ of Plamtlfr and
against Oelcndanl in the amount of Five Hundrcd ( $5UU UU ) Dollars pcr day Irorn the dalc of
the Oistrict Justice judgment October 21. IlJlJM. to thc present date lor cach day of violation plus
costs incurred by thc Plaintitr and reasonablc allorney tees all as provided by law.
Respcctfully submiued.
,fj;i.t{)( , . -1:..__
Sally J \ ' der. Esquire
Solicitor lor the Board of Supervisors of Hopewell
I'ownship. Cumberland County
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VERI FICA TION
I, Harold E, Bender, am the Chairman of the Board of Supervisors of Hopewell
Township, Cumberland County, and am authorized on behalf of the Board of Supervisors of
Hopewell Township to verify that the facts set forth in the foregoing Complaint are true and
correct to the best of my personal knowledge and belief. [understand that false statements herein
are made subject to the penalties of 18 Pa, C,S, Section 4904, relating to unsworn falsification to
authorities,
Date: PP/ / f r
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/rf,."-<'7"l~ 0,vd'--..
HAROLD E. BENDER
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TWl Parccll.D. No,
TillS DEED
MADE THIS IS'" day of A_~..'''-
ninely-seven (1997).
in the year of our Lord one thousand nine hundred
BETWEEN MELVIN S, UEAM and ANNA M, UEAM, husband and wife, of 40 I Shippensburg
Road. Shippensburg, Pennsylvania, hereinafter referred to as Grantors
AND LANA IlK tNVESTMENT FUND, q conlract and declaration of a pure trusl, of
12 Carroll Slreet, Suile 180, Weslminsler, Maryland, 21157, hereinafter referred to
as Grantee.
WITNESSETH, that for and in consideration of the sum of FIFTEEN THOUSAND
DOLLARS ($ 15,000,00), in hand paid, the receipt whereof is hereby acknowledged, the said
Granlors do hereby granl and convey, in fee simple to Ihe said Grantee. its successors and assigns,
ALL Ihat certain lract of real estate lying and being situate in Hopewell Township, Cumberland
Counly. Pennsylvania more fully bounded and described as follows:
BEGINNING ala railroad spike in T-331, also known as East Creek Road, at the eo mer ofother
land. nowor fonnerly of Melvin S, Beam, the said olher lands being designated as Lot No.4; Ihenee
in East Creek Road North seventy-nine (79) degrees forty-eight (48) minutes three (03) seconds East
Iwenty-five and thiny-one hundredths (25,31) feet to an exisling railroad spike; thence continuing in
East Creek Road North fifty-seven (57) degrees fifty-six (56) minutes fifty-three (53) seconds East
one hundred twenly-eight and eighly-nine hundredths (128.89) feet to an existing railroad spike;
thence continuing in East Creek Road North fifty-eight (58) degrees twenty-eight (28) minutes six
(06) seconds East three hundred fifteen and zero hundredlhs (315.00) feet to an exisling railroad
spike nl the corner of lands now or formerly of William L. Hoeh; thence along said lands now or
fomlerly ofHoeh North Ihiny (30) degrees fifty-two (52) minutes fony-two (42) seconds West fiflY
and zerd hundredths (50,00) fect to an existing iron pin at lands now or formerly of F. Alfred
F'ogclsanger Estate; thence along hmds now or formerly of liogelsangcr Estate North seventYMthree
(73) degrees seven (07) minules zero (00) seconds East four hundred eighty-three and thirty-six
hundredd,s (483,36) feet 10 a poinlat lands now or fonnerly of Ross Z. Pierponl; thence along said
lands now or fonnerly of Pierpont South thirty-two (32) degrees sixteen (16) minules sixteen (16)
seconds East fony-six and zero hundredths (46,00) feet 10 an existing Parker Kalon nail in East Creek
Road; Ihenee across East Creek Road along lands now or fonnerly of Richard SehaeITer South thiny-
four (34) degrees fifty-one (51) minutes thirty-four (34) seconds East four hundred fifty and fifty
hundredths (450,50) feet to a twelve (12") inch hickory; thence along lands now or formerly of
Schaeffer und lands now or formerly of Charles S, Wrighl North forly-lhree (43) uegrees forty-nine
(49) minoles one (01) second East seven hondred two and one hundredlhs (702,01) feet to an exisling
railroad spike in T-360. also known as Jumper Road; thence in Jumper Road Soulh thirty-four (34)
bOu,( 164 i'.if !i94
6 ~0i1- A
railroad apike in T-360, olso known a, Jumper Road; thence," Jumper Rood Soulh thirty-four (34)
desrees lilly-seven (57) minule, lilly,nine (59)..cond, Eo.llhree hundred forty.nve and seventy,nve
hundredlh, (345.75) feel 10 an e.iSlina iron pin alland, now or formerly of John D. Pele"heim;
thene. alons said land, now or fonnerly ofP.le..h,im Soulh Ihirty.three (33) d.S.... forty.two (42)
minutes on. (01) ,ecund We.IIWO hnndred si.ty,four and forly,lwO hundredlhs (264.42) feel 10 an
e.islins iron pin 01 land, nuw or formerly of John W. Forresler; thence alons ,aid land, now or
form.rly of Fone'ter Soulh Ihirty,two (32) dea..e, twenty (20) minutes forty-nine (49) seconds We,1
four hundred eialny-four and ,i'ly,eiaht hundr.dlhs (484,68) fe.IIO an e.iSlina 1'0'1; thence alona
,aid land, now'or formerly uf Forre,ler, Soulh Ihirty,four (34) desrees one (01) minute eight (08)
seconds W.,I one Ihousand twenly and .ighty-.even hundredlh. (1,020,87) fcello an ..islins twelve
(12") inch pin oak 01 the corner of olher lands now or formerly of Melvin S. !leam, said Olher land
being desianaled a, Lol No.4; thence along LOI No.4 North forty-si. (46) degreesthirte.n (13)
minules nlly,one (5 I) seconds West seven hundred Ihirty.seven and nfty.one hundredlhs (737.5 I)
feel to an iron pin; Ihence along LOI No, 4 NOllh len (10) degrees farly-four (44) nlinules twenty-
seven (27) seconds Easl one hundred nfty,four and ninely,four hundredlhs (154,94) reel 10 an iron
pin; Ihenee conHnuing along the same the following eou"es and diSlances: North forty-si. (46)
desrees sevenleen (17) minutes Ihirty-nine (39) seconds West sixly-four and fifty-three hundredlhs
(64.53) feet to a point, Ihence North twenly,s"en (27) degrees Iwenly-five (25) minules Ihirly-seven
(37) seconds West fifty-four aod forty-nine hundredlhs (54.49) feet to a poinl,lhence North eleven
(II) degrees forty,three (43) minules thirty-Ihree (33) seconds West fifty.one and eighly.si.
hundredlhs (51.86) feel 10 a poinl, thence North six (06) degrees forty-one (41) minutes thirty-si.
(36) seconds Westeishty'lhree and ninety,two hund..dlhs (83.92) feet 10 a poinl, thence North five
(OS) deg..es Ihirty-IWO (32) minutes two (02) seconda West eighty.four and sixty-three hundredths
(84.63) feet to a point, thence North sevente,n (17) degrees twenty-seven (27) minules seventeen
(17) seconds Wesl sevenly-four and sevenly.five hundredths (74,75) feet to a poinl, thence Norlh
Ihirly (30) degrees fOlly-five (45) minutes fifteen (15) seconds West sixty-one and sixly-six
hundredlhs (61.60) feel to a point,thenee North forty-six (46) degrees forty-four (44) minules fineen
(IS) seconds West fifty-ooe and si.ty-one hundredths (51,61) feet to a point, Ihence North si.ty.four
(64) degrees eighleen (18) minules Ihirty-eight (38) seconds West sixty-three and ninety hundredlhs,
(63.90) feet to a point, thence North fifty-two (52) degrees five (OS) minutes ooe (01) second West
thirty-six and thirty-nine hundredlhs (36,39) feel 10'" point, thence North thirty-nine (39) degrees
twenty-five (25) minules twenty (20) sceonds WeSl seventy-four and forty.one hundredths (74.41)
feet to a railroad spike in East Creek Road, the plae. of beginning, CaNT AININO an entire area
01'35.4128 acres, subject 10 a right-of-way 01'0.9954 acres, leaving a net lot or.. ofJ4.4174 aer.s,
and being desisnated as LOI No.2 on a land subdivision for Melvin S. !leam dated July 26, 1995,
prepared by Byers and Runyon Surveying and ..cord.d in Cumberland County Plan Book 70, at Page
144.
!lE\NO part oflhe same which Calherine V. Dear, widow, by her deed daled February 26, 1985 and
recorded in Cumberland Counly Deed !look "0", Volume 3 I, at Page 85 granted and conveyed 10
Melvin S. Beam nnd Anna M. Beam. his wife, grantors herein.
SUBJEGT TO building setback lines, easemenls and "otalions as sel forth on subdivision plan
recorded in Cumberland County Plan !look 70, al Page 144, -
tiiiiiK 164 rAt,E 995
.......RK WEIOLE AND PERKINS _ .ATTORNEVS AT LAW _ lOllS EAST K.lt'IG STREET - SH'P.P~J.UrllIG. PA 110157.\397
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FURTIIER SUlJJECT TO all condilions, restriclions, and easemenlS of record,
And the said Granlors hereby covenant and acree Ihallhey will warranl specially Ihe property
herehy conveyed.
IN WITNESS WHEREOF, GrwlIors have hereanto sellheir hands and seals Ihe day and year
first above wriuen.
Sicned, Scaled and Delivered
in the Presence of
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1I00JEWHL TOWNSIIIIJ
CI/MOf:IU.ANI) COI/NTY
257 NewburK Road
NewburK. PA 17240
Jlnulry 23. 1998
LANARK INVESTMENT FUND
1% CARROLL STREET SUITE 180
WESTMINSTER MD %1157
RE: ZONING ENFORCEMENT NOTICE
401 SHIPPENSBURG ROAD
SHIPPENSBURG PA
TAX PARCEL NOS. 11-09-0509-014 and 11-09-0507-014
Dear Sir or Madam:
As the owner of record of the above referenced propeny, the undersigned is notifYing you
of a Township Zoning Ordinance violation existing on propeny currently titled to Lanark
Investment Fund. The prior deed owners of this property, Melvin S, Beam and Anna M.
Beam, in violation of the Hopewell Township Zoning Ordinance, either with your
knowledge or without your knowledge, permitted a violation of the zoning ordinance by
allowing construction ofan airplane landing strip upon this propeny, As owner of record,
Lanark Investment Fund is also in violation for not obtaining a proper zoning permit for
this airplane landing strip, In order to obtain a zoning permit an approved land
development plan must be on file with the Board of Supervisors of Hopewell Township.
Mr and Mrs Melvin Beam were provided with copies of the Hopewell Township Zoning
Ordinance and the Hopewell Township Subdivision and Land Development Ordinance by
obtaining the same from the Township Secretary, A1verda Ocker.
The construction and operation of an airplane landing strip without a zoning permit and an
approved land development plan are in violation of Hopewell Township Zoning Ordinance
Section 12,02 A. and a violation of Hopewell Township Subdivision and Land
Development Ordinance Section 400 B. (CopitS of these sections are attached):
To comply with the Township Zoning Ordinance and Subdivision and Land Development
Ordinance, you must stop using the airplane landing strip immediately and obtain a zoning
permit from the Zoning Officer, Jeffrey A. Danner, This will require first obtaining land
development plan approval by submitting a land development plan in accordance with the
Township Subdivision and Land Development Ordinance, Airplane landing strips are not
permitted uses in the agricultural zone where your propeny is located, Therefore, you
must follow the provisions of the zoning ordinance to request permission to use your
property as an airplane landing strip. You are to commence compliance immediately upon
receipt of this notice, You have thirty (30) days to complete compliance by obtaining an
approved land ctevelopment plan and a valid zoning permit from Hopewell Township
within thirty (30) days of receiving this notice,
"
,
,
Lanmark Investment Fund
Pagc 2
January 23. 1998
By means of this letter. [ am notifying you that ifthcsc violations are not corrected wilhin
the above specified time limits. thc Township will have no choicc but to tilc a Complain I
for enforcement with the Districl Justice. Ajudgmcnt of no I more than $600.00 per
violation per day plus attorney fees and costs may be imposed on you by the District
Justice,
You may 'ppeal this Zoning Enforcement Notice to the Hopewell Township Zoning
Hearing Board, You have thirty (30) days from thc date you rcceive this notice to tile an
appeal the Hopewell Township Zoning Hearing Board, You may obtain an application for
a variance or tile your notice of appeal with the Zoning Hearing Board Secretary. Lance
Heberlig, 24 Shuman Road, Newburg, PA 17240. You may contact Mr Heberlig by
telephone at (717) 423-5393.
.
~'
,
Very truly yours.
Jeffi'ey A. Danner
Zoning Officer
JAD/zh-m
Enclosure
xc: Township files
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SALLY J. WINDER
Allorney 01 Law
701 E. King Street
Shippensburg, P A 17257
.
JACKSON, CAVANAGH & ST/VALE, P,C,
BY: LEE A, STIVALE, ESQUIRE
10. 46511
BY: TONI LEE CAVANAGH, ESQUIRE
10. 77600
MILLS OF VICTORIA
SUITE 301
1469 BAL T/MORE PIKE
SPRINGFIELD, PA 19064
(6101604-4970
AttomllY for Defendant
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
HOPEWELL TWP BOARD OF SUPERVISORS
257 NEWBURG ROAD
NEWBURG, PA 17240
Plaintiff
v,
No. 98-6502 CIVIL TERM
LANARKINVESTMENTFUND
2331 02 EAST AVENUE S 247
PALMDALE, CALIFORNIA 93550
Defendant
MOTION FOR DECISION ON BRIEFS
Plaintiff by and through its Counsel, Jackson, Cavanagh & Stivale, P.C" hereby
fries this Motion to have Preliminary Objections in the above matter decided on the
Briefs and in support thereof states the following:
1. Preliminary Objections to Plaintiff's Complaint were filed by Defendant on
January 4, 1999.
2. Argument on the Preliminary Objections is scheduled for March 3, 1999.
3. On February 9, 1999 Counsel for Defendant wrote to Counsel for Plaintiff
requesting a response as to her agreement or disagreement to have this
matter decided on the Briefs as opposed to oral arguments. A true and
correct copy of that letter is attached hereto, made a part hereof and
marked as Exhibit "An,
4, Counsel for Plaintiff failed to respond to Counsel for Defendant.
5, On February 15, 1999, Counsel for Defendant sent Counsel for Plaintiff
additional copies of the Preliminary Objections filed with the Cumberland
County, Prothonotary, on January 4, 1999 together with Memorandum of
Law in support thereof. A true and correct copy of the Counsel for
Defendant's letter to the Counsel for Plaintiff is attached hereto, made a
part hereof and marked as Exhibit "B",
6. In the letter dated February 15, 1999, Counsel for Defendant requested
Counsel for Plaintiff to respond as to her agreement or disagreement with
Defendant's request for a decision on the Briefs, See Exhibit "B",
7. On February 22, 1999, Defendant once again contacted Counsel for
Plaintiff by telephone and left a lengthy message asking Counsel for
Plaintiff to respond.
a, Counsel for Plaintiff has steadfastly failed and refused to respond to
Counsel for Defendant, therefore, Defendant is without means to
represent to this Court whether Counsel for Plaintiff is in agreement or
disagreement with Defendant's Motion for a Decision on the Briefs in the
above matter.
9. To date, Counsel for Defendant has received no response to Defendant's
Preliminary Objections,
WHEREFORE, Defendant respectfully requests that this Honorable Court decide
JACKSON. CA V ANAGII &. STIV AU:. 1',('.
IlV: LF.f: A, STIVAU:, f:SQtIllU:
ItJU 46~ II
IlV: TONILF.F. CAVANAWI. ESQtIIlU:
ItJU 776110
MIL!.'; 0.. VICTORIA
surrF. JOI
14H91lALTIMOIlE I'IK.:
SI.RING....:I.U.I.A 19064
(610) 604-4970
Allorne. for U.r.ndont
COURT OF COMMON PLEAS OF ClIMIIEIU.ANI> COlJNTY,PENNSYLV ANIA
CIVIL ACT[ON LAW
HOPEWELL TWP 1I0AIW OF SlJJ>EltvISOH.S
257 NEWBURG H.OAI>
NEWBURG, PA In-to
Plaintiff
v.
No. 9H-6502 CIVIL TERM
LANARK [NVESTMENT FUNI)
2331 J)2 EAST A VENUE S 247
PALMDALE, CALlFORN[A 93550
I>efendant
VERIFICATION
I, Toni Lce Cavanagh, Esquire, attorney !()r Dcfendant, hercby verity that thc facts in the
forcgoing Motion for Decision on Bricfs arc truc and correct to the best of my knowledge,
F
[I:
IF
information, and belief. Thc statcments made therein are made subject to 18 Pa, C.S, 4904,
regarding Unsworn Falsification to Authorities and the penalties related thereto.
;
/;7
I
/ oni Lee C:lVanagh, Esqui
Attorney for Defendant
~
CEltTIF[CATF OF SEI{\'[CE
I. Toni Lee Cavanagh. Esquire, (lllorney filr the Defendant. hereby eertil)' th(lt this ~~'h
day of February. 1999. a true (lnd corrcct copy of the (lll(lchcd Motion filr Dccision on Briel:, W(lS
served upon the following by First Class M(liI:
Sully), Winder. Esquire
70 I E. Kings Street
Shippensburg.I'A 17~57
Date: February 22. 1999
/
"~tL Q1~aJ(ll{fL ~i"C
oni Lee Cavanagh, Esqui ~
Attorney for Defendant '
'I". PYS510 cumborlAnd County prothonolAry'R Office PAge 1
Civil CABO Inquiry
1918-0650:1 llol'tWi-;I.I. TOWNSHIP Ill) ot' :lUl't:RV (V~) t.ANARI< INVESTMENT FUND
Referenco No..: FlIod........: 11/16/1998
~se Type.....: APPEAL - OJ Time.........: 2:07
JUdlment.. . . . .: .00 Exocutlon Date 0/00/0000
Jud e Assigned: BAYLEY EDGAR 0 Jury Trial....
Dis osed D6sc.: Disposed Date. 0/00/0000
____________ Caso Commonts ------------- Hlghor Crt 1.:
Higher Crt 2.:
.................................***.**....**...**.....".......................
General Indox Attorney Info
HOPEWELL TOWNSHIP BOARD OF PLAINTIFF WINDER SALLY J
SUPERVISORS
257 NEWBURG ROAD
NEWBURG PA 17240
LANARK INVESTMENT FUND
C/O 2331 D2 EAST AVENUE S 247
PALMDALE CA 93550
DEFENDANT
STIVALE LEE A
...**.*...*..*.*..*...*............*...........~................................
* Date Entries *
----*--,......,--,..,..................,--,...,........",..._,-,_.,....,.".,.-
11/16/1998
11/16/1998
11/24/1998
12/11/1998
1/04/1999
1/04/1999
2/18/1999
2/25/1999
3/02/1999
3/08/1999
_ _ _ _ _ _ _ _ - - - - - FIRST ENTRY - - - - .. - .. .. - .. - - - -
APPEAL FROM DISTRICT JUSTICE JUDGMENT
-------------------------------------------------------------------
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
-------------------------------------------------------------------
PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
-------------------------------------------------------------------
COMPLAINT
-------------------------------------------------------------------
DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY TONI LEE CAVANAGH ESQ
PRELIMINARY OBJECTIONS OF DEFENDANT LANARK INVESTMENT FUND
-------------------------------------------------------------------
CERTIFICATE OF SERVICE
-------------------------------------------------------------------
MOTION FOR DECISION ON BRIEFS
-------------------------------------------------------------------
ORDER - IN RE MOTION FOR DECISION ON BRIEFS - DENIED - BY EDGAR B
BAYLEY J - NOTICE MAILED 3/2/99
-------------------------------------------------------------------
MOTION TO STRIKE PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY
OBJECTIONS
_ _ _ _ .. _ _ - - - - - - - LAST ENTRY - - - - - - - - - - - - .. -
********************************************************************************
* Escrow Information *
* Fees & Debits Bea Ba1 Pvmts/Ad1 End Ba1 *
********************************'********~******'*******************************
APPEAL D.J,
TAX ON APPEAL
SETTLEMENT
JCP FEE
35.00 35.00
.25 .25
5.00 5.00
5.00 5.00
------------------------
45.25 45.25
.00
.00
.00
.00
--.----------
.00
********************************************************************************
* End of Case Information *
********************************************************************************
.
JACKSON, CAVANAGH & STIVALE, P.C,
BV:LEE A, STIVALE, ESQUIRE
10#48511
TONI LEE CAVANAGH, ESQUIRE
10#77800
MILLS OF VICTORIA
SUITE 301
1489 BALTIMORE PIKE
SPRINGFIELD, PA 19064
(810) 804-4970
&!2mevs for Defendant
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
HOPEWELL TWP BOARD OF SUPERVISORS
257 NEWBURG ROAD
NEWBURG, PA 17240
Plaintiff
v.
No. 98-6502 CIVIL TERM
LANARK INVESTMENT FUND
2331 02 EAST AVENUE S 247
PALMDALE, CALIFORNIA 93550
Defendant
NOTICE TO PLEAD
To: Hopewell Township Board of Supervisors:
You are hereby notified to file a written response to the enclosed Preliminary Objections
and Memorandum of Law in support thereof within twenty (20) days from service hereof or a
judgment may be entered against you.
Q c:u
Toni Lee Cavanagh, Esquire
Attorney for Defendant
,
4, Located in the main office at12 Carroll Street on July 8, 1998 was the
Save-A.Pa[riot Fellowship,
5. Defendant's office as of July 8, 1998 was in Palmdale, California,
6. The process server was informed by Bonnie Nobile, an adult individual at
the main office of 12 Carroll Street, that she was unaware if the Defendant
maintained an office within the complex as there are many office suites
occupied by many different businesses,
7. Ms. Nobile told the process server that the Complaint could not be served
upon the Defendant at 12 Carroll Street unless she ascertained that the
Defendant did in fact maintain an office suite at that address.
8, When Ms, Nobile was distracted by a telephone call, the process server
left the Complaint at the main office 12 Carroll Street despite the fact that
he had been told that Ms. Nobile would not accept service for the
Defendant until determining if the Defendant maintained an office in the
complex.
9. To date, the Complaint has not been served upon the Defendant, Lanark
Investment Fund, either in person or by mail as is required by the
Pennsylvania Rules of Civil Procedure for District Justices,
10. The Pennsylvania Courts do not have personal jurisdiction over the
Defendant in this matter because service was not made upon Defendant.
WHEREFORE, the Defendant respectfully requests this Honorable Court to
dismiss Plaintiff's Complaint with prejudice.
Dale: 12/28/98
Respectfully sUbmilled,
, ('
i,
"-"-.::::;- ',I / "'.'
: ( 1.1 /11 r 1(.. "
Toni Lee Cavanagh, Es Ulre("
/ Attorney for Defendant' '-..
!
DcfcmJanl hc \'ac"led, There was a lillal deled onlhe face of the record allhe lime jllllgment
was entercd .Igainsl Dcfendant, 10 wil, servicc ha<lnol heenmade uponlhc Iklellllanl, Iherefme,
thc ( 'onrt did nol ha\'c personaljurisllietiono\'cr the I klcndant aflll was wilhonl power to enler a
judgment a!,:ainsl it.
nllU:S OF LAW
The Pcnnsyll'ania Rules ofCivill'rocedure regarding service (4()(), ('( s(',/.J as well as Ihe
Rules of Civil Procedure for District Justices regarding servicc (3()7, ('( s('(j.) require thai ser\'iee
ofa Complaint be made upon thc Defendant or a person authorized to accept service either in
person or by mail.
DISCUSSION
"Service of process is a mechanism by which a court obtains jurisdiction of a defcndanl,
and thercrore, the mles concerning service ofproccss must be strictly followcd." Cintas
Comoration v. Lee's Cleaning Services. Inc" 700 A.2d 915 (POI, 1997). "Without valid service, a
court lacks personal jurisdiction of a defendant and is powerless to cnter judgmcnt against him or
her." Id. "Thus, [invalid service] is not merely a procedural defect that can bc ignored when a
defendant subsequently learns of the action against him or her." There was no service upon the
Defendant in this matter, thus the instant action must be dismissed from the Court of Common
Pleas and the judgment against the Dcfendant vacated.
The individual in charge of [2 Carroll Street had no connection to the Defendant and no
authority to accept service for the Defendant. In order for service to be valid in a case such as the
instant one, "there must be a sufficient connection between the person served and the defendant
to demonstrate that service was reasonably calculated to give the defcndant notice of the action
against it." Id, The Plaintiff in the instant action had no reason to believe that the individual
.'
with whom il had ,'olllarl;1t 12 ('arroll Sired was anihalrll wllh Ihe Ikll'ndanl ill any way, To
the l'IlIIlrary, the prncrss serler was sp,'rilkally lold Ihallhe IklClldalllmil~hlllol"\"'1I havc
omees at 12 ('armll Slled and Ihal if it did, Ihe process server wonld he so inf'IfII1l'd ill shurI
order, While the indil'idllal wilh whom Ihe proccss server was dealing 'lIIswcred the phone. the
process server, without dctenllilling whclher Ihe Defendant had offices at 12 Carroll Slreel, lell
Ihe COll1plainl :11 12 Carroll Slreet without ohlaining a signature 10 cOlllinll acceptance, The
Process server may as welllml'e Jen the Complaint on a slreet comer,
"Proper scrvice is a prerelJuisitc to the court's jurisdiction ovcr Ihe person ofa
defendanl." ('omll1onweahh v. Shinholster, 7J8 A. 2d 1246 (Pa. [998), "'n detcnllining
whether propcr scrvice has been made. [the] Superior Court requircs strict mlhercncc 10 the roles.
Id. The Plaintiffs actions wcre wocfully inadequate attempts at servicc and do not even
approach adherence to the roles of servicc. "[fservice is nol properly made, in Ihe absence of a
waivcr of an objection to invalid servicc. it is irrelevant if Ihe defcndant subsequently Icams that
the constable Jen a copy of the complaint at a location that was no the defendant's residence."
[d. It is improper to serve an individual by leaving a complaint at another individual's home just
as it is improper for Plaintiffto attcmpt to serve Defendant by leaving a copy oflhe Complaint at
anothcr's place o I' business.
CONCLUSION
The Plaintiffs cannot maintain an action against the Defendant without first securing for
the court personal jurisdiction ovcr the Defendant in order that the matter may be properly heard
and adjudicated. Plaintiffs Complaint in the Court of Common Pleas should be dismissed with
prejudice, or in the altemati'/e, the maller should be remanded to District Justice Perkins' court
with instructions that the judgment against Defendant be vacated,
Af'flDA VIT
1. I, Bonnie Nobile, being duly sworn do hereby depose and say that on July
8, 1998, a man with papers to serve appeared at12 Carroll Street in
Westminister, Maryland,
2. The papers to be served were Complaints against lanark Investment
Fund and Meadowland Holdings.
3. The man seeking to serve the Complaints on the above named
Defendants asked if lanark Investment Fund and Meadowland Holdings
were still located at this address.
4. I told the man that I did not think lanark Investment Fund and
Meadowland Holdings were still located at12 Carroll Street but that I
would look into it and let him know.
5. Thp. man attempting to serve the papers on lanark Investment Fund and
Meadowland Holdings asked me to sign papers confirming acceptance of
them, however, I refused to sign anything accepting the papers on behalf
of lanark Investment Fund and Meadowland Holdings because I did not
know if they still maintained a place of business at 12 Carroll Street.
6. I told the man that if he would like to call me in about an hour, I would let
him know if lanark Investment Fund and Meadowland Holdings still
maintained places of business at 12 Carroll Street and he agreed that he
would call me in one (1) hour.
7. Despite being told thatlanark Investment Fund and Meadowland
1..../.. .'
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('EIrI'I"'I(',\n: OF SERVICE
I. Toni I.cc Cavana!:h. Esquirc, allomey Illr Ild<:nd;mt. hcrchy l'l'llify Ihal a lrue allll
correct copy of the allaehedPrcliminary Oh)eellllnS allll Mcmorandum of I.aw in slIpporllhcrc"f
togclhcr with the anidavit rcgarding additional faels was scrvcd on Sally J, Windcr, Esquirc on
Deccmber 30, [')<)8 hy l),S. !irsl class rcgular m;lil. postagc pre.paid diri'ctcd to Ihc following
addrcss:
70 I East King Strcct
Shippcnshurg, I' A 17257
..{)1L,-~f!dIal{/J' ~{
oni Lce Cavanagh. ESl\Uir~~
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HOP":W":U, TOWNSHIP HOAR!)
Ofo'SUPERVISORS.
PllIintiff
: IN Tilt: ('()lJRT 0'" COMMON
: I'U:,\S OF ClJ.\IUERIANI) COUNTY
"5
: CIVI L ACT[ON - LAW
LANARK INV~STl\H:NT fo'UN\)
Defendant
: NUMHER: 98-6~2 CIVIL TERM
: APP":AL FROM D.J. JUDGM~NT
PLAINTIFF'S BRIEF SUR I)E"'ENI)ANT'S PREUMINARY OBJECTIONS
History of the Case, This action is belore the Court lor decision on Prdiminary Objections
to service of the Complaintliled originally as a District Justice civil action, The original
~istrict Justice complaint was served pursullntto District Justice Rule 313, Service
Outside the Commonwealth together with the Notice of Hearing scheduling a hearing in
this action for July 22, 1998, The July 22, 1998, hearing datc was thc hearing date in the
related complaints allliled by the Hopewell Township Hoard of Supervisors against
Lanark Investment Fund, Meadowland Holdings, and Melvin and Anna Beam,
individually. Following service of the complaints, Attorney Stivale requested a
continuance of the hearing date and represented to the District Justice that he represented
the delendants in all these matters, The matter was continued and hearings on all cases
rescheduled lor a common hearing date of October 21, 1998, At the time of the hearing,
October 21, 1998, atter the convening of court, Attorney Stivale stated that he was
appearing on behalf of Melvin and Anna l:leam and not on behalf of Lanark Investment
Fund or Meadowland Holdings, Hopewell Township was awarded judgment against
Lanark Investment Fund and Meadowland Holdings under District Justice Rule 3 19, A
.
notice of Appcall'rom District Justicc Judgmcnt was lilcd wllh rcspcctto cach casc with
Role issued in cach casc dlrccting the lihng of a complallll I he l'omplalllt was tiled and
the Delcndant entity in cach casc tilcd Preliminary ObJcctiuns through counsel "Horney
Stivalc represcnting cach Dclcndant cntity Thc preliminary objection in each casc is
service ot' the complaint. Thc scrvicc addressed is thc scrvicc of thc original District
Justice complaint not the Complaint Iilcd with the Cuurt of Conl/Ilun Pleas.
ARGUMENT
The Delcndant cntities in thcsc related complail1ls arc not corporations or
partnerships, Each is, according to documents tilcd in the Cumberland County Recorder
of Deeds Otlice, a "Contract and Dcclaration of a Pure Trust". Each is a grantee of certain
property in Hopewell Township Irom Melvin S Beam and Anna 1\'1, Beam, husband and
wife, and each lists a decd address of 12 Carroll Street, Suite 180, Westminstcr,
Maryland, Thc Return of Service tilcd in the District Justice otlicc veri tics scrvice at that
addrcss in Westminstcr, Maryland, Dclendants argue thcre is no personal scrvice and no
service by mail as rcquired in the District Justice Rules and Rules of Civil Procedure.
However, the Detendant entities are served wherc the complaint is served upon a person
tor thc time being in charge of any place where an unincorporated association is
conducting business or any association activity, It is not required that such an entity
maintain a separate oftice at a location and the Comment to the Rules specities that mail
service is not permitted because of the intrequency with which such address or location
may be used by the association or emily, And in thc circumstance of ditliculty in scrvice
and attempts to elude scrviec, the Rules provide lor appearance as a waiver of detects in
scrvice
Thc IJistricl Justicc systcm and its Rules arc dCS1!(ncd \(l allow access In the
Judicial System without all of lhe formalities of the courl which mightmlubit use by the
general pulic, The District Justice lItlicc is designed tll be open for tiling claims and
adjudicating matters without the nL'Ccssily of having counsel To that cnd the technical
aspects of tilings and motions are simplitied in thc Oistricl Justice Rulcs, Although, the
Rules with respect to service of Complaints and Notices oi Hearing are designed to
provide notice to Detendants should thcy choose to appear and defcnd claims, the District
Justice Rules provide that appcarance by counsel waives any detect in service,
District Justice kule 314,C clearly states that "The appearance of a delendant in
person or by representative or the tiling by him oi a claim in the case shall bc deemed a
waiver of any defect in service but not a waiver of detect in venue,"
The District Justice tile contains as part oi that Court record, the letter of
Attorney Stivale dated July 21,1998, which refers to CV-0000108-98 (the complaint
against Lanark Investment) and CY -000 I 09-98 (the complaint against Meadowland
Holdings), a copy of which is attached hereto as Exhibit A. This letter clearly states that
Attorney Stivale is counsel for all Defendants and it constitutes the entrance oi an
appearance on behalf of the detendants in thosc cases, Thc letter addrcssed to the District
Justice is equivalent to the tiling of a Praecipe or Pleadings in the Court of Common Pleas
stating that counsel is representing a party, The signit1cance of this letter is to waivc any
defect in service and to alcrt thc court, and in this instance, thc District Justice, that the
Defendants in thcsc actions arc awarc of the pcnding aClion, and that they arc rcprescntcd
by counscl who will act on their behalr' The tihng or'the Notice or' I\ppcal From District
Justice Judgmcnt and the Prcliminary Objections liled by '\lIorney Stivale both verily that
the Defendant entities and counsel have been apprised ofthc course or' CVCIllS throughout
this action, Thc Preliminary Objcctions should bc dismissed and an Order cntcrcd dirccting
thc Delendants to tile Answers within twenty days of the ordcr
The Pennsylvania Rulcs of Civill'roccdure Rule 1028 Note does spccity that
where the prcliminary objections arc as to jurisdiction. the Objections are to be endorsed
with a Notice to Plead since thc Objcetions cannot be determined Ii-om tacts of rccord, In
this case no Notice or Pleading has occurrcd, Therelore. if it determined by the Court that
thcre arc not sufticient facts of record. it is submitted that an order bc cntered to strike thc
Preliminary Objections as not properly tiled and order thc Answer to the Complaint be
timely tilcd.
Respect/idly sub milled,
JoJ~
Sally J. inder
Solicitor. Hopewell Township
Board of Supervisors
.. .. .... ....,.. '''.o '.o' ,.... ........
.." Vol .. ...
....."""".
J.I.2I, un lo:mll
JACKSON C~VANAC~ & ST1VAlE,P,C, ~o.206S p, 2
JACKSON, CAVANAGIi' " Sf'fVAt.a. ".c.
1.11. otlIcu
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luJT 21, 1998
VIA FACSIMILE 11717.SOU-33OS
1be H=otibJe Dmd P. PeddnI
DiIdzict lwrtico
~DIm=09-3~1
81 Wa!IM Bon.om Road
P.O. Box 361
Sblppcnsburg. PA 1725700361
REI Hopewell ToWDJhlp Mattcn .
CV~, CVoOOOOI08-98 aDd CV..oooOl09-98
o..r Judge Pakinr.
Thb oflicc '51" I L', tho dafi-n~."'" in the above captiClllCd ~ Bcc:a~c of It COll11ICl in my
.1lhcd1l1~ 1 wi1l apprcdllc a l:OJIoim..n,# of1hc= lhrouPAUjl\ISt H, 1998, I appreciluc Yoar
HClIlOf's cOIlSldenJilll1 orlbls rcqllt:SL
Veq 1n1ly yo1llS,
C ~rv-r--
Leo A. Stivalo
di~4 bIu noncadlmam .
co: Sally WlDdu, EsquIre (Fo'-;~Ho # 117-532-3713)
07/21/98 11:56
P.002
.
TX/RX NO,2013
,
C__&ALl" Of PINN$nVANIA
-_.~-~--,.
COUI' O' COMMON PlIAS
Cumberland County
JUDICIAL DIS'IICT
NOTICE OF APPEAL
fl<OM
DISTRICT JUSTICE JUDGMENT
9th
COMMON 'LIAS No.
nJ; _ I. ") -,'" (\ ' I
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1e.("1Y\
NOTICE OF APPEAL
Notice is giYen thot the appellant has filed in the above Court of Common Plp,m on appeal frOf'll too judgroont rendered by tho Otstrict Juslic6 on the
date and in the case mentioned below.
Lanark Investmcnt l'!lnd .--'--'----r'~~=~-
~AIP'Et.lAHf MN...I.~' NUUW NAMl Of oJ.
JiJ.RJ~W?2 Bast AvcnUILS_....24.'l.-.----,("," ..-' ..,-- _l!.l!.~~~01
1. COOl
P"I~. Califo~~35.5Jl ,----,,---...-,.
a.." 2LJ>,.i;=:~-;:~-B"-"'liwl"_,Jb
~~ 11: 0000108-98 ,.."L.._._k7. . . .
This block w;U be signed ONLY when ,hi. nolalion i. required under Po. R.cP,j,P, No. 11 appellant was CLAIMANT (see Pa, R.G.P.J.P. No.
loo8B.
This Natice af Appeal, when received by the Di.trict Ju.lice, wal ope'ale o. a 1001(6) in aclion belore DisIJictJuslice, he MUST
SUPERSEDEAS to. the judgment for possession in this ca... FILE A COMPLAINT within twenty (20 J days alter
"__,.,,,..__,_ /iling his NOTICE of APPEAL.
Signature 01 Prothonotary or Deputy
l(lor",vIlJ.l'Il';
(This section of form to be used ONLY when appellant was DEFENDANT fsee Pa, R.CPJP No, 1001(7) in action before District Justice,
IF NOT USED, detach from copy of notice of appeal to be served upon appellee},
PRAECIPE, To. Prothonatary
Enter rule upon Hooewell Townshio Board of Supervi!!'Qr..!!___ , appellee(.}, to. file a complaint in this appeal
no Nama of appel/oafs'
(Common Pleas No. -{ 0'" lo~C'.J::i ('.t~ J' rierM ) within twenty (20) days ofter service of rule or fer entry of judgment of non pros'
'~'
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
Signa/ulO of a~ 0( his~, Of agent
RULE, To. Hopewell Township Bd of Supervisors, appellee(.).
N[It71c of appcl/ce(S)
(1) You ore notified that a rule is hereby entered upon you to file 0 complaint in this appeal within twenly (20) days cfter the date of
service of this rule upon you by personal service or by certified or registered moil
(2) If yau do. not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU.
(3) The date of service of this rule if service was by moil is the date of moiling.
Date:.[\\'\/' 1(010,19 q3 \.~l'Jf\~(A.Q.\~\mn~
SigtUJ~t!lonotatyOf Deputy
COURT FILE TO BE FILED WITH PROTHONOTARY
AOPC312-84
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- C0M#.40NWEAL TH OF PENNSVL VANIA
COUNTY OF: CUMBERLAND
- ~ _.._~_.~ ~~'---_._-,:,;~~,,!,--~.
NOTICE OF JUDGMENTITRANSCRIPT
CIVIL CASE b...;
PLAINTIF r """'I. .",,"OC"[55 ~::
f!fOPEWELL TKP BOARD OF SUPERVISORS" '!\
257 NEWBURG RD (
NEWBURG, PA 17240
L ~
Uta 0.11 '-0
09-3-01
OJ~AI'Ie "0'1
DAVID P. PERltINS
...'... 81 WALNUT BOTTOM
P.O. BOX 361
SHIPPENSBURG, PA
To....... (717) 532-7676
VS,
OHENDAtH 1...yf;....j..::CRESS
rWARIt INVESTMENT FOND
12 CARROLL ST
WESTMINSTER, MD 21157
L
Docket No,: CV' 0000108 - 98
Date Filed: 7/06/98
17257.0361
.,
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LANARIt INVESTMENT P'OND
12 CARROLL ST
WESTMINSTER, MD 21157
.
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THIS IS TO NOTIFY YOU THAT:
Judgment: np.PAm.T ,llIDGM17.N'I' PT.TP
[iI Judgment was entered for: (Name) UOI>l?WRT,T, '!'WI> RnllRn m> ~"PJ>.I?VTq
[iI Judgment was entered against: (Name) T,llN'AR'I( TN'VRS'I'MF.N'I' FTThIJ)
\
in the amount of $
(Date of Judgment)
10/?1/11A
,;<;':\ '0 on:
o Defendants are jointly and severally liable,
o Damages will be assessed on:
o This case dismissed without prejudice.
(Date & Time)
600.00
53.10
.00
.00
653.10
$
$
$'"
$
$
Amount of Judgment
Judgment Costs
Interest on Judgment
Attorney Fees
Total
)
,1
,
O Amount of Judgment Subject to
AttachmenVAct 5 of 1996 $
o Levy is stayed for_days or D generally stayed.
Post Judgment Credits ,$ ,
Post Judgment Costs $
-,
------------
------------
"
Certified Judgment Total $
o Objection to levy has been filed and hearing will be held:
. . '.- ..~
I". r= ..
"
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Time:
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE
OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF,COMMON PLEAS, CIVIL DIVISION. YOU
..-'. "i.'
MUST INCLUDE A COPY OF TH
CE OF JUDGMENTrrRANSCRIPT FORM WITH Y,OUR NOTlCE OF APPEAL,
,<.."11/ /". ' '
J . ,"' : ". . "", .' .
. " ,c- ,', District Justice
::- " .... ..' ": "'" ....:~;,l'..,i:.:.
the proceedings conta'ining.thll,judg!T\en\,\
... (# ~,........ ~' -:: ,.,; "
::. ",' "'" pistrict ~jui;tice
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, /' -'IX Date
. ( ,,1.. , ',0 0 _ ~ 0,
f certify that this is a true anecopy of the record
/tJ-J/.11 Date ~ r. '
My commission expires first Monday of January,z.. .9 O.
AOPC 315-96
aw.ttlWfWlALfH Of' ~AHIA
coval ~ruA'
Cumborland County
NDlCIAL D1tTIJCT
NOTlCI 0' A"IAL
.. . ~ *.t1..
tlOM
DISTRICT JUSTICI JUDGMINT
COMMON'UA'N.. q~- tDS Od Co,,', I
NOTICE OF APPEAL ,e.( l'I\
Notice Is gIwn that tho oppoIIanl hen lilod in 1M above Court of Conwnon Plea. on appeal Irom lhe judgmenl rwndofed by tho Diotrict Justice on tho
dotw one! In tho COM ..."lIo".d bel....
LaDek Invatment Paud
~~% Baat Avonuo 8 . %47
PalmdUt Callfornla 93550
9th
~
an
I"'" ';l~~_~;- ~ O!
'"
111 a;Jgl
October U 1998 U
u..
If appellant was CLAIMANT (see Pa. R.c,P ..l.P. No.
1001 (6) in action belore District Justice, he MJST
FILE A COMPLAINT,vtfthln twenty (20) days after
liling his NOTICE of APPEAL
:<,~
CV 19. ??oo108-98
LT 19
This block wiI be Ilgned ONLY when this notation is required under Po. R.cP JP. No.
looS&'
This , Notice 01 Appeal, when receiwd by the Di.trict Ju.,ic., will operate 0' 0
SUPERSEDEAS ta the judgment fat posoeuion in this cose.
,
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Si[Tlalure 01 ProIhonOtllfY Of Deputy
.
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.... . PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE ,
" ,~\':,: ,:~ ',':" ": ."." _. .
(This section 01 101m to be usocJ ONLY when appellant was DEFENDANT Isee Pa, R.G.P,J.P. No. 1001(7) In ac1ion before Dls1rictJustlce.
IF NOT USED, detach /rom copy 01 notice of appeal to be seIVocJ upon appellee), ,~".-. ,:,;~
PRAECIPE, To Prolhonotary :_""<.;::~<'i;tf
Enter rule upon Hopewen Township Board of Suoorviaors ,oppellee(.), 10 file 0 COf'I'4'Ioinl inthisopp.aL ,.~
()o Nimu of appolIofJ(S}
(Common Pleas No. ,C)- lD50d c.. v" l-rel fl\ ) within twenly (20) day. after ....vic. of rule or fer entry of judgment of non pros.
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RULE, To Houe"en TOWDllhlp Bd cf Supervisors, oppellee(.).
, Name of awe1lec(S)
~,r
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,
, , , '( 1) You "'" nolified thot 0 rule ~ hereby ent.red upon you to file 0 complaint in this oppeol within twenly (20) day, ofjer ,the"date of
service of this rule upon you by penonol s.rvic. or by certified Of reg~tered moiL . " >,".' , ," "
(2) ff you do not file 0 comp/oint w~hin this time, 0 JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU.'
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COURT FILE
PRt\t:CIPt: mR I.ISTING CASE FOR t\RGIJMt:NT
(Must br typrwriUrn and submillrd in duplicate)
TO TIlE PROTflONOTt\R\' OF CIIMUERI.t\NI) COIINT\':
Please list the within matter for the next
Pre-Trial ArguOlenr
'~~gument Court
"
CAPTION OF CASE
(entire caption must be stated in full)
HOPEWELL TOWNSHIP BOARD OF SUPERVISORS
( Plaintifl)
v.
"
LANARK INVESTMENT FUND
(Defendant)
No: 98 CIVIL 6502 1998
I. State matter to be argued (Le, plaintiff's motion for new trial. defendant's
demurrer to complaint, etc.)
Preliminary Objections of Defendant, Lanark Investment Fund
2, IdentifY counsel who will argue case:
(a) For Plaintiff:
Address:
Sally J Winder, Esquire
70 I East King Street
Shippensburg, PA 17257
(b) For Defendant:
Address:
Toni Lee Cavanagh, Esquire
Suite 301, 1489 Baltimore Pike
Springfield, PA 19064
3. [ will notifY all parties in writing within two days that this case has been listed for
argument.
4,
Argument Court Date:
March 3, 1999
"
HOPEWELL TOWNSHIP
BOARD OF SUPERVISORS
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
V.
LANARK INVESTMENT FUND
NO. 98-6502 CIVIL TERM
.
.
.
.
CIVIL ACTION - LAW
AND NOW, this
ORDER OF COURT
lit.
I "
day of MARCH, 1999, it appearing that
the Certificate of Service filed by defense counsel indicates
that the Preliminary Objections were served on February 15, 1999,
Defendant's request to strike Plaintiff's response to Preliminary
Objections is DENIED.
/
By the (o~~
F;~;~.-/~~~
Edward E. Guido, J.
Sally Winder, Esquire
For the Plaintiff
- ~1 :1.~':A..'
(n.,,\-~(.',{ 3/' ~,' 'i 9 '
...:\ ..,~ .
Toni Lee Cavanagh, Esquire
For the Defendant
:sld
JA(:KSOS, ('A\'AS'\c;J( & STI\'AU:. 1'.(',
BY: U:t: A. S'I'I\'A"':. t:SQtIIRt:
m_ 46~11
~1I1.1^o; ot'VICTORIA
StJIn:301
1489 BAI.TIMORE I'IKt:
SI'RINGt"':I.n, I'A 19064
(6101604-1970
AlIorno" for nofondant
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,I'ENNSYLV AN[A
CIVIL ACTION
HOPEWELL TWP DOARD OF SUPERVISORS
257 NEWBURG ROAD
NEWBURG. PA 17240
Plaintiff
,'.
No. 98-6502 CIV[L TERM
LAN ARK INVESTMENT FUND
2331 D2 EAST AVENUE S 247
PALMDALE, CALIFORNIA 93550
Defendant
ORDER
AND NOW, this
day
of 1999, it is hereby ordered
that a hearing shall be scheduled on the
day of
,1999,
at
o'clock in Courtroom #
in the Cumberland County Courthouse,
Carlisle, Pennsylvania in the above captioned matter.
By the Court:
J.
JACKSO:'>l. CA VANAG/I & STIVAU:. P.C.
BY: U:t: A, STIVAU:, t:SQliIRt:
JO# ~6511
BY: TONI u:t: CAVANAG/I. ESQUIRE
JO# 77600
MII.I.S In' VICTORIA
StJln:301
1~89 BALTIMORE l'IKt:
SPRINGtULD, PA 1906~
(610) 6044970
Altornev for Defendanl
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYL VANIA
CIVIL ACTION LAW
HOPEWELL TWP BOARD OF SUPERVISORS
257 NEWBURG ROAD
NEWBURG. PA 17240
Plaintiff
v.
No. 98-6502 CIVIL TERM
LANARK INVESTMENT FUND
2331 D2 EAST AVENUE S 247
PALMDALE, CALIFORNIA 93550
Defendant
VERIFICATION
I, Toni Lee Cavanagh, Esquire, attorney for Defendant, hereby verify that the facts in the
foregoing Motion to Strike Plaintiffs Response to Defendant's Preliminary Objections are true
and correct to the best of my knowledge, information, and belief. The statements made therein
are made subject to 18 Pa, C.S, 4904, regarding Unsworn Falsification to Authorities and the
penalties related thereto,
f(j (i(1 LA
Toni Lee Cava/agh, Esquire
l, Attorney for Defendant
'-l
,
....'
JACKSON. CAVANAGH & STIVALE, P.C.
BY:LEE A. STIVALE, ESQUIRE
101/46511
TONI LEE CAVANAGH, ESQUIRE
IDn71600
MILLS OF VICTORIA
SUITE 301
1489 BALTIMORE PIKE
SPRINGFIELD, PA 19064
(610) 604-4970
Attornovs for Defendant '
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
,
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HOPEWELL TWP BOARD OF SUPERVISORS
257 NEWBURG ROAD
NEWBURG, PA 17240
Plaintiff
v,
No. 98-650Z CIVIL TERM
LANARKINVESTMENTFUND
2331 02 EAST AVENUE S 247
PALM DALE, CALIFORNIA 93550
Defendant
.~-------~--
NOTICE TO .'LEAD
To: Hopewell Township Board of Supervisors:
You are hereby notiticd to tile a written response to the eneloscd Preliminary Ohjections
and Memorandum of Law in support thereof within twcnty (20) days from service hercofor a
judgment may be entered against you.
T",; 1= C,,~,h, ,~
Attorney for Defendant
JACKSON, CAVANAGH & STIVALE, P,C.
BY:LEE A. STIVALE. ESQUIRE
10#46511
TONI LEE CAVANAGH, ESQUIRE
101/77600
MILLS OF VICTORIA
SUITE 301
1489 BALTIMORE PIKE
SPRINGFIELD, PA 19064
(610) 604-4970
Altornovs for OofondanJ__.._____________,_.. __ '..'_..,____..____ ,
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
HOPEWELL TWP BOARD OF SUPERVISORS
257 NEWBURG ROAD
NEWBURG, PA 17240
Plaintiff
v.
No, 98-6502 CIVIL TERM
LANARK INVESTMENT FUND
2331 D2 EAST AVENUE S 247
PALMDALE, CALIFORNIA 93550
Defendant
DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
Defendant, Lanark Investment Fund, hereby files Preliminary Objections to
Plaintiffs Complaint and in support thereof states the following:
1. On July 6, 1998. Plaintiff filed a Complaint against Defendant in District
Cou rt 09-3-01.
2. On July 8, 1998, a process server attempted to serve the Plaintiff's
Complaint on the Defendant in the main office at12 Carroll Street, in
Westminister, Maryland, a location containing several office suites
occupied by several different businesses.
3, Defendant did not have an office at thaI location,
4. located in lhe main office at12 Carroll Street on July 8, 199B was Ihe
Silve.A-Patriol Fullowship,
5, Defendant's office as of July 8,1998 was in Palmdale, California.
6. The process server was informed by Bonnie Nobile, an adult individual a[
the main office of 12 Carroll Street, that she was unaware if the Defendant
maintained an office within the complex as thore are many office suites
occupied by many different businesses,
7. Ms. Nobile told the process server that the Complaint could not be served
upon the Defendant at12 Carroll Street unless she ascertained that the
Defendant did in fact maintain an office suite at that address.
8. When Ms. Nobile was distracted by a telephone call, the process server
left the Complaint at the main office 12 Carroll Street despite the faclthat
he had been told that Ms. Nobile would not accept service for the
Defendant until determining if the Defendant maintained an office in the
complex.
9. To date, the Complaint has not been served upon the Defendant, Lanark
Investment Fund. either in person or by mail as is required by the
Pennsylvania Rules of Civil Procedure for District Justices.
10. The Pennsylvania Courts do not have personal jurisdiction over the
Defendant in this matter because service was not made upon Defendant.
WHEREFORE, the Defendant respectfully requests this Honorable Court to
dismiss Plaintiffs Complaint with prejudice.
C~(~j
JAN 4 1999
JACKSON, CA VANAWI & STlV AI.I', I' (',
I\\': LFE Al.AN STlV AU:, ESl)llIRE
JIlIl.H,~11
TONIU:F('AVANA(i1I.I'Sl)llml'
1Il1177c.oO
SUITE JOI, 14S911AI.TIMOllF I'IKF
SI'IUNGFIEU>. I'ENNSYI.VANIA 'II or.)
(610) 60,)--l970
ATIUIlNEYS FOIlIlEFENIlANT
_______.__..__. ._,._~-_. _ ,. .___.n....___....___
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIl. ACTION - LAW
HOPEWELL TOWNSIIIP SUPERVISORS
'257 NEWBURG ROAD
NEWBURG, PENNSYLVANIA,
PLAINTIFF
NO, ')S.(,502 CIVIL TERM
vs.
LAN ARK INVESTMENT FUND
2331 D2 EAST A VENUE S 247
PALMDALE, CALIFORNIA 93550,
DEFENDANT
- ,-
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S PRELIMINARY
OBJECTIONS TO PLAINTIFr'S COMPLAINT
SUMMARY
The Dcfcndant in thc above captioncd mallcr was never propcrly servcd with the
Plaintiffs original Complaint as filed in the officc of District Justicc Perkins. Due to the
lack of proper servicc, thc judgmcnt appcaled from is a nullity duc to thc lack of personal
jurisdiction over Dcfendant. Since District Justice Pcrkins did not have pcrsonal
jurisdiction ovcr Defcndant at the time he entered judgment against Defcndant, the
judgment is invalid and the Plaintiffs Complaint must be dismissed from thc Court of
Common Picas, Plaintiff cannot litigate a mailer against a Defendant upon which he has
fi,ilcd to make servicc.
ISSIIES
WIIETm:l{ TIJ!S COllnT liAS PERSONAl. ,IUR[SIlICTlON OVEI~TIIE
m:FENDANT WilEN TilE DEFENDANT WAS NEVEn SEnvrm WITII mUGINAl,
PROCESS IN TilE IlISTRICT .JUSTICE COllRT'!
WHlnrmR TilE .llmGMENT ENTERED IIY mSTlucr ,JlJSTlCEJ'ERKINS IS
INVALID BECAUSE IT WAS ENTEREJ> WITIIOUT TilE COURT IlA VIN(i
PEnSONAL .Il1RISmCTlON OVEn nEFENDANT'~
FACTS
On July 8.1998, Plaintiffallcmptcd to scrve a Complaint on Defcndant at 12 Carroll
Street, Westminster, Maryland. Dcfcndant did not thcn al1l1 docs not now maintain an officc at
12 Carroll Strcct, Westminster. Maryland. Plaintiff was infornled by an adult individual at 12
Carroll Strcctthat she was not aware of whether thc Dcfendant maintained an office thcrc atld
refused to accept service until she could detenninc irthe Defendant had an office at 12 Carroll
Street. Plaintifflcft the Complaint at 12 Carroll Slrcel even though it had been refused by an
individual in charge of the premises. Plaintiff did not obtain a signature con tinning that thc
Complaint had been accepted. When it was continncd that the Dcfcndant did not havc an office
at 12Carroll Street. the individual in chargc ofthc prcmises returned the Complaint to Plaintiff,
The Plaintiff appeared before District Justice Perkins to obtain a judgment against
Dcfendant despite knowledge that the Complaint had not been properly served upon Defendant.
District Justice Perkins cntered a default judgment against the Defendant despite the fact that he
had been informed that the Defendant had ncvcr been served with the Complaint. The Defendant
was never served with the Complaint, never appeared in court and was made awarc ofthc
Complaint only after a default judgment was entcred against it. Thc Dcfendant appealed the
judgment to the Court of Common Pleas in ordcr to have the COlllplaint dismissed or for the
matter to be remanded to the District .Justice level in order that the judglllent against the
Dcfcllllalll he vacaled, Then! W;IS a 1;11011 defccl on thc faec 01'1111': record allhc lime judgmenl
was cnkred againsl Defendanl, III wit. scrvice had nlll hel'nmade lIponlhe 1>c1"lIllant. Ihcrcli1rc,
the ('lllllt did nOI have personal jurisdiction over the lklcndalll and was wilhoul p"wcr to enler a
jndgmenl againsl it
,RULES OF I,A\~
The I'cnnsylvania Rules of ('ivil Procedure regarding sc",ice (11I0, ('/ ",C'If,) as well as the
Rules of Civil Procedure for Dislrict Jusliccs regarding sc",ice (307, c/ ",elf.) require Ihal se",ice
of a Complaint he madc upon the !)efendanlor a person aUlhorizcd 10 accept service eilher in
person or hy mail.
DISCUSSION
"Service of process is a mechanism by which a coun oblains jurisdiclionof a defcndanl,
and therefore, the mles conccming scrvice of process must he slrictly followed." Cinlas
Corooralion v. l.ee's Clcaninl! Services. Inc,. 700 A.2d 915 (Pa, 1997). "Without valid scrvice, a
court lacks personal jurisdiclion of a defcndanl aod is powerless to cnler judgment against him or
, her.~' Id. "Thus, [invalid scrvice] is not merely a procedural defect that can be ignored when a
defcndant subsequcntly leams of the aclion against him or hcr." Thcre was no service upon the
Defendant in this malter, thus Ihe instant action must he dismissed from the Court of Common
Pleas and the judgment against the Defendant vacated.
Thc individual in charge of 12 Carroll Street had no connection to the Dcfendant and no
authority 10 accept service for thc Defendant In ordcr for service to be valid in a case such as Ihe
instant one, "Ihere must be a sufficient connection belweenlhe person served and tbe defendant
to demonstrate thai service was reasonably calculated to give tbe defendant notice of the action
against it" lfl The Plaintiffin the instant action had no reason to believc that the individual
with \\ horn it had ClInlad ;,1 12 ('anoll Stred wa~ aflih;l1l'd with the Ilcli:lhlant in any way, '10
thc rontrary, the plllcrss servcr was 'peritically tohl thatlhe Ilcfcndantmil:hlnot e\'cn have
oflices at 12 Canoll Slrcd and Ihal i r il did, Ihe pmecss sen'Cf would he so informed m shOlt
order. While thc individual with whom the process server w;,s dealing answcrcd the phone, the
proccss scn'cr , without dctenllining whether the Defendant had oniccs at 12 Carroll Stred, Iell
thc Complaint at 12 Carroll Street wilhout ohtaining a signatun: to confinn acceptance, The
Process servcr lIlay as well have left thc Complaint on a streel comer.
"Propcr scrvice is a prerequisite to thc court'sjurisdietion over thc person ofa
defcndanl." Commonwcalth v. Shinholsler, 718 A. 2d 1246 (Pa. 1998). "In detenllining
whethcr propcr service has been made, [the] Superior Court requires stricI adherencc 10 the rules,
!!L The Plaintiffs actions were woefully inadequalc attempts al service and do not even
approach adherence to the rules of service. "If service is not properly made, in the absence of a
waivcr of an objcction to invalid service, it is irrelevant ifthc dcfendant suhsequently leams that
the constable left a copy of the complaint at a location that was no the defendant's residence,"
.. , ld.,lt is improper to serve an individual by leaving a complaint at another individual's home just
as it is improper for Plaintiffto attcmpt to serve Defendant by leaving a copy oftbe Complaint at
another's place ofbusincss.
CONCLUSION
The Plaintiffs cannot maintain an action against thc Defendant without first securing for
the court personal jurisdiction over the Defcndant in ordcr that the matter may be properly heard
and adjudicated. Plaintiffs Complaint in the Court of Common Pleas should be dismissed with
prejudice, or in the alternative, the mattcr should be remanded to District Justice Perkins' court
with instructions that the judgment against Defendant be vacaled.
i
I
AFFID~IJJJ
1. I, Bonnie Nobile, being duly sworn do hereby depose and say that on July
8,1998, a man with papers to serve appealed al12 Carroll Streel in
Westminister, Maryland.
2. The papers to be served were Complaints against Lanalk Investment
Fund and Meadowland Holdings.
3. The man seeking to serve the Complaints on the above named
Defendants asked if Lanark Investment Fund and Meadowland Holdings
were still located at this address.
4. I told the man that I did not think Lanark Investment Fund and
Meadowland Holdings were still located at12 Carroll Street but that I
would look into it and let him know.
5. The man attempting to serve the papers on Lanark Investment Fund and
Meadowland Holdings asked me to sign papers confirming acceptance of
them, however, I refused to sign anything accepting the papers on behalf
of Lanark Investment Fund and Meadowland Holdings because I did not
know if they still maintained a place of business at 12 Carroll Street.
6. I told the man that if he would like to call me in about an hour, I would let
him know if Lanark Investment Fund and Meadowland Holdings still
maintained places of business at 12 Carroll Street and he agreed that he
would call me in one (1) hour.
7. Despite being told that Lanark Investment Fund and Meadowland
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HOPEWELL TOWNSHIP BOARD
OF SUPERVISORS
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
<
.
.
V.
LANARK INVESTMENT FUND
NO. 98-6502 CIVIL TERM l~
HOPEWELL TOWNSHIP BOARD
OF SUPERVISORS
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
:
V.
.
.
:
MEADOWLAND HOLDINGS
: NO. 98-6503 CIVIL TERM
:
.
.
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
AND NOW, this
BEFORE BAYLEY. GUIDO. J.J.
flt ORDER
! f' day of MARCH, 1999, Defendants'
Preliminary Objections are DENIED. Each Defendant is directed to
file an answer within twenty (20) days.
Sally J. Winder, Esquire
For the Plaintiff
Guido, J.
Toni Lee Cavanagh, Esquire
For the Defendant
:sld ;.JoJl'c.~ /11';)I'l<;:cl 3/19/91'
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HOPEWELL TOWNSHIP BOARD I IN TilE COURT OF COMMON PLEAS OF
OF SUPERVISORS I CUMBERLAND COUNTY, PENNSYLVANIA
I
V. I
I
LANARK INVESTMENT FUND I NO. 98-6502 CIVIL TERM
HOPEWELL TOWNSHIP BOARD IN THE COURT OF COMMON PLEAS OF
OF SUPERVISORS : CUMBERLAND COUNTY, PENNSYLVANIA
V.
MEADOWLAND HOLDINGS NO. 98-6503 CIVIL TERM
IN REI DEFENDANTS' PRELIMINARY OBJECTIONS
BEFORE BAYLEY. GUIDO. J.J.
OPINION AND ORDER OF COURT
Both of these cases arise from an appeal of a judgment
entered by default by District Justice Perkins on October 21,
1998. On November 18, 1998 the Defendants filed an appeal to
this Court pursuant to Pa. R.C.P.D.J. 1002. At the request of
Defendants' counsel, a rule was issued directing Plaintiff to
file a complaint within twenty (20) days. On December 11, 1998
the Plaintiff filed a complaint against each Defendant.
Both Defendants filed preliminary objections to the
respective complaints on December 28, 1998. The parties filed
briefs and argued before this Court. Since the issues are
identical in each case, we have consolidated the matters for
purposes of this decision.
NO. 98-6502 CIVIL
98-6503 CIVIL
DISCUSSr~
The SOlA issue raised in Defendants' preliminary objections
is an attack on tho jurisdiction of the district justice. They
allege that Plaintiff never effectuated proper service of the
district justice complaint upon them. Therefore, they argue that
the district justice's judgment was a nullity. For the reasons
hereinafter set forth, we must deny Defendants' preliminary
objections.
At the outset, it should be noted that if the Defendants
wished to attack the jurisdiction of the district justice, they
should have filed a praecipe for writ of certiorari pursuant to
Pa. R.C.P.D.J. 1009. That rule provides in relevant part as
follows:
RULE 1009. PRAECIPE FOR WRIT OF CERTIORARI
A. Unless he was the plaintiff in the action before
the district justice, a party aggrieved by a judgment
may file with the prothonotary of the court of common
pleas a praecipe for a writ of certiorari claiming that
the judgment should be set aside because of lack of
jurisdiction over the parties or subject matter....
Pa. R.C.P.D.J. 1009(A).
The rules go on to provide that "[a] judgment may not be the
subject of both certiorari and appeal." Pa, R.C.P.D.J. 1015.
The comments to Rule 1015 state:
This rule forbids bringing both certiorari and an
appeal. An appeal involves a trial de novo on the
merits. . . without regard to any defects in the
proceeding below, whereas certiorari does attack
defects, not going to the merits, in the proceedings
below. (emphasis added)
Pa. R.C.P.D.J. 1015 note.
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JACKSOS. CA V A.'1A(;1I &. STlV AJ.E.I'.C.
BY. LEE A. STlV ALE, ESQUIRE
IDII 46511
~m.LS OF VICTORIA
SUITE 301
1489 BAL TJ)!ORE PIKE
SPRINGFIELD, PA 19064
(610) 604-4970
AttornlY (or Defendln!
COURT OF COl\f.\ION PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION
HOPEWELL TWP, BOARD OF SUPERVISORS
257 NEWBURG ROAD
NEWBURG, PA 17240
Plaintiff
v,
No, 98-6502 CIVIL TERM
LANARK INVESnIE:"lT FUND
2331 D2 EAST AVEI'WE S 247
PALMDALE, CALIFORNIA 93550
Defendant
l!Ef;ENDA.l~T'S ANSWER TO PLAINTIFF'S COMPLAINT
The Defendant, Lanark Investment Fund, by and through its counsel, Lee Alan Stivale,
Esquire, Answers the Plaintiffs Complaint and in support thereof states as follows:
1. Admitted.
2, Admitted.
3, Admitted.
4. Admitted.
S. Denied. It is denied that private airports and airplane landing strips are not
pennilted uses in the Agricultural District under the tenns of Hopewell Township
Zoning Ordinance, Article 4. Paragraph 5 is further denied in that it states a
conclusion of law to which no response is required, therefore, same is denied.
6. Denied. It is denied that on or about Mayor June, 1997 and continuing during the
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airport, nor is it an airplane landing strip, rather it is a flat area made up of open
space.
35. The use of a private airplane to and from a property in the Agricultural District is
an accessory use, unregulated by th~ zoning ordinance.
36, The use of a private airplane for travel to and from the property is similar to the use
of a mOlor vehicle over a driveway; driveway's not carrying a zoning
classification.
37. Zoning ordina.,ces are construed strictly in favor of the use and against restrictions,
38. The Hopewell Township Zoning Ordinance does not regulate access as a distinct
use in any zoning district other than in a zoning district not here relevant.
WHEREFORE, Defendant respectfully requests that this Honorable Court enter
judgment in favor of the Defendant and against the Plaintiff awarding attorney's fees, litigation
expenses and court costs to Plaintiffs together with all additional relief that this Court deems just
and proper.
Respectfully submitted,
JACKSON, CAVANAGH & STIVALE, P.C.
'''''/t?~~
J.,ee Alan Stiva; Esqu
Attorney for Defendant
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lilY 77(,00
MII.LS (W YJ("HlIUA
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SI'RINGFIEI.Il,I'A ,qOM
tblO) 604-4970
AlIornov ror nefend.n'
COURT OF COMMON PU:AS OF CUMBERLANIl COUNTY, I'ENNSYLV ANIA
CIVIL ACI'ION
1I01>(O;WELL TWP, BOARIl OF SUPERVISORS
257 N..:WBIJRG ROAIl
NEWBURG, I'A t7240
l'laintiff
v.
No, 98-6502 CIVIL TERM
LANARK INVESTMENT FUND
2331 D2 EAST AVENUE S 247
I'ALMDALE, CALIFORNIA 93550
Defendant
IlEFENIlANT'S HRIEF IN SUPPORT
OF PETITION TO TOLL PER J)JEM FINE
In accordance with the Order of Court dated April 27, 1999, the defendant, Lanark
Investment Fund files this brief in support of its petition to toll per diem fine.
SUMMARY
The Municipalities Planning Codc (MPC) does not allow for a finc of greater than Fivc
Hundred Dollars ($500.00) upon a finding ofliabilily for a zoning violation. (53 P.S.
910617.2(a)). The magisterial court below impropcrly cntered judgment in favor of the
Plaintiff in the amount of Six Hundred Dollars ($600.00). Thc MPC as it pertains to 53
P.S. 910617.2(b) rcgarding the ability of the Court to grant an Ordcr of Stay tolling the per
diem fine pending final adjudication of Ihe violation demonstrates the legislative intent of
JUN 3 0 1999 ~
protecting the defendant againstullfeasouahle penalties, hurden and expense.
"'M:I~'i
The defendant, L,m;uk Investmcnt Fnnd dues not and did nolown Ihc land at issuc in the
ahovc mailer. Th.: nHlgistcrial cmul impl"llllcrly cntcrcd ajllltgmcnt ;Igainstthe dcfcndant in an
mnuul11 execeding thai which is pennillcd undcr thc M I'l. Thc dcfcndant has appcalcd thc
court's ruling to thc Court of Common Pleas. Pursuanttothc MPC, thc dcfcndant sccks to havc
thc line imposed, which due to uon-paymcnton appcal, bccomcs a pcr dicm finc, tolled pending
tinal adjudication of the mailer.
IUlLES 011 LAW
53 P,S, ~I06t7.2(a) states: "any person...... upon heing found liable [for violation ofa
Zoning Ordinance] in a civil cnforccmcnt procceding commcnccd hy a municipality,
[shall] pay ajudgmcnt ofllolmoTe than Five Hundred ($500.00) Dollars plus all Court
costs, including reasonable allomcy fees incurred by the municipality as a result thcrcor."
53 P.S, ~I0617,2(b) states: "the Court of Common Pleas, upon Petition, may grant an
Order of Stay, upon cause shown, tolling the per diem fine pending a final adjudication of
the violation."
DISCUSSION
The defendant contends that it docs not own the land in question, thercforc, it should not
be subject to fines for alleged violations thereon. The MPC docs not allow the fine improperly
imposed by the magistrate, thcrefore, the fine should bc amendcd to comply with the applicablc
statute. Furthennore, the amended finc should he tolled 10 protect the intcrests ofthc defendant
pcnding final adjudication as provided for in the MPC as above stated.
fPN('J.IJSJ(~~
Based on the statutory allowanccs lmd prohihitions conccrning liligluilln ofthc insllmt
nalurc, it would he propcr for Ihc ('ourllo (i) lIInclullhc district courl judgmcnl prcviously
cnlered inlhis mattcr in order thai illllay cOlllply wilh thc MI'C lmd (ii) lollthc pcr diclII Iinc as
pennitted under 531'.S. gI0617.2(b) as sel t{lflh inlhe (lfcccding pllragraphs"
Respeclfully suhmitted.
tl_;~__
By: Toni Lce Cavanagh,
Attomey for Pelitioncr
Hnhrrl JUIIU'\ Jark\HII
',('rAIHII SlIvulrt
Tnnl'.!'r Cll~'ullu~h.
Kl'lIIu'lh k, ('ulh'p
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JUN 3 0 1999 j
Tl'Il'phnOl' ((,10, (,O~..al)70
Fa, (11111) (,114,4'175
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. AI\u I.Icrn\..clllI ~J
June 28, 1999
The Honorable Edward E. Guido
Cumberlmlll County Court of Common Picas
Cumberland County Courthousc
I L'lurthouse Squarc
Carlisle. P.\ 17013
RE: lIopewell Township Board of Supervisors \', Meadowland lIoldings; No. 98-6503
lIopewell Township Board of Supen'isors v. L:mark Investmcut Fund; No, 98-6502
Dcar Judgc Guido:
As per your Court Order of April 27'". 1999, cucloscd hcrcwith plcllse lind copies of Defeudanls'
briefs in support of their petitions to tollthc pcr dicmlinc in the above captioned matters.
The originals of the enclosed briefs were filed of record with the Cumberland County Court of
Common Pleas Oflice of the Prothonotary on or about July I. 1999.
V cry truly yours.
. ulu {iaJJ~?iL
ani Lee. Cavanagh. Esq ire
TLClhb \
Enclosures
cc: Sally J. Winder. Esquire
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of Defendant's Brief in Ihis mailer on Plaintifl's counscl If this Petition, filcd only behalf of
Lanark Invcstment. is to bc considcrcd as to J\\cadllwland Holdings, Ihcn Plaintiff rcquests
the Court hold thc rccord opcn for filing ofthc transcript ofthc District Justicc hcaring
hcld beforc District Justicc CorrCll1 MIlY 24. I <Jejl), inlhc mallcr of HopclVcll Township v.
Mclvin and Anna Beam addressing the use ofthc premiscs and the same zoning
violations as well as the transcript of hearing held before Judge Hcss June 14. 1999, on thc
petition for injunctivc relicfin the mallcr of Departmcnt of Transportation, Burcau of
Aviation v" Troy Beam.
The Hopewell Township Zoning Ordinance violation was established by the failure of the
Defendant to appeal the Enforcement Notice to thc Zoning Hearing Board which has
exclusive jurisdiction in matters of appeal from enforcement notices. The District Justice
action for imposition of the pcnalty for the violation. The Common Pleas Court appeal
therefore does not act as a forum to detcrmine whether a violation exists but to assess the
penalty for the violation which exists" The Court of Common Pleas will hear the case to
determine thc extent of the pcnalty. The Court will makc a determination at that point as
to whether the Defendant acted in good faith. tfthe Defendant did not, then the PlaintifTis
entitled to a per diem fine under the terms of the Township Ordinance and the
Municipalities Planning Code. The Petition to Toll Per Diem Fines is premature at this
point.
The judgment amount entered by the District Justice is proper because the State
Legislature automatically amended all township ordinance penalty provisions when it
enacted Pol" 1142, No. 172, Section I, December 18, J 996" That legislation created 53
Pa r S A Section 66601 (3) which specilically automatically amends township
ordinances which would include the lIupewell Township Zoing Ordinance II pill vi des lin
civil penalties instead of lines and sets the IIIl1Ullnt III ShOO 00
ARGUMENT The position of the Plaintil1'lherefore is that the existence ofa wning
violation has already been established because an Enforcement Noticc was served upon
both Lanark Investment and Meadowland Iloldings and since it is clear from the testimony
given at other hearings revolving around the use of this property as a an airplane landing
strip that no appeal from the Enforcement Notice to the Zoning lIearing Hoard was ever
made by any party 10 any of these proceedings, !he ruling of the Commonwealth Court in
City of Erie v Freitus, 68 I A. 2d 840 ( 1996) applies. That ruling was that the District
Justice actioo subsequently liIed by the Township is for the purpose of enforcement and
imposition of penalties for the established violation. It is not a forum for determioation of
the violation itself The assessment of a per diem penalty would be within the jurisdiction
of this Court" Such an assessment would be based upon the Court determining that a
violation continues to exist. In this case, a linding that an airplane landing strip exists on
the premises and that no zoning permit has been issued for the landing strip" Further, the
Court may entertain testimony as to whether the Defendant has liIed an application for a
zoning permit and what action has been taken on that application" But until such a hearing
is held and per diem penalty assessed, this petition is premature.
The Commonwealth Court has addressed these issues not only in the City of Erie v
Freitlls, case but also in Johnston v Opper Macllngie Township, 638 ^"2d 408 (1996).
The Commonwealth Court has made it clear that the District Justice may not conduct a
hearing d,DOVO where the municipality has shown proper issuance of the Enforcement
NOlice and the pany nOlilied has lailed to tile an appeal 10 the loin!! Uearin!! Board
Therefore, neither Lunark InveMllIent nor Meadowland lIoldings is entilled to relief on
this Petilion for the reasons that a delerll1ination of per diem penalties has not yel been
made and the judgement as il was entered in the District Justice proceeding was entirely
within the parameters of the law applicable to the instant circumstances and lindings.
The applicable ordinance and legislation is the Uopewell Township Zoning Ordinance as
automatically amended by the provisions 01'53 Pa. c.SA Section 66601 (3) which
convened this kind of violation to a civil enforcement action bearing a maximum penalty
01'$600"00. This provision does not elfectthe ability of the Coun to impose per diem
penalties because subsection (5) of the statute specifically provides for imposition of daily
assessments"
CONCLUSION. The Coun should dismiss the Defendant's Petition to Toll Per Diem
Fines as premature since a dtermination and per diem assessment has not yet been made
and the filing of the appeal from the District Justice puts the Common Pleas Coun in the
position of the District Justice to now make that determination at the time of trial of this
matter as to both Defendant Meadowland Holdings and Lanark Investment Fund.
Respectfully submitted,
dW~
Sally J. i der
Attorney r Plaintiff
protccting thc dcfcndant against unrc:lson:lhlc pcn:lltics, hnnlcn .ulIl cxpcnsc.
FACTS
Thc defcnd.mt, I.an:lrk Invcstmcnt Fund ducs not :lml did nor own rhc laml.1I issuc inthc
ahovc mallcr. Thc m:lgistcrial court impropcrly cntcrcd ajllllgmcnt.lgainstthc dcfcndant in:ln
mnount cxcecding that which is pemlillcdundcr thc MP(,. Thc dcfcml:mt has :lppc.llcdthc
court's ruling to the Court of Common Pleas. Pursuant to thc MPC, thc dcfcndant secks to h:lvc
the fine imposed, which due to non-payment on :lppc:lI, becomcs a pcr diem Iinc, tollcd pending
final :ldjudieation of the mattcr.
RULES OF LAW
53 P.S, ~10617,2(a) states: "any person...... upon being foundli:lblc [for violation 01':1
Zoning Ordinanec] in a civil enforcement proeceding commenced bY:l municipality,
[shall] pay ajudgment ofllor more than Five Hundred (S500.00) Dollars plus all Court
costs, including reasonable allomey fees incurred by thc municipality as a result thcreor."
53 P,S, ~10617.2(b) states: "the Court of Common Pleas, upon Petition, may grant:ln
Order of Stay, upon cause shown, tolling the per diem fine pending a final adjudication of
the violation."
DISCUSSION
The defendant contends that it does not own the land in question, therefore, it should not
be subject to fines for alleged violations thereon. The MPC does not allow the fine improperly
imposed by the magistrate, therefore, the fine should be amended to comply with the applicable
statute. Furthermore, the amended fine should be tolled to protect the interests of the defendant
pending final adjudication as provided for in the MPC :IS above st:lted.
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JACKSON. CAVANA<a1 & STlVAI.E, I'.l..',
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LANARK INVESTMENT FUND
2331 D2 EAST AVENUE S 247
PALMDALE, CALIFORNIA 93550
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II()J'EWELL TOWNS"IP :
BOARD OF
SUPERVISORS.
Plllintiff
IN TilE C( l\ 'RT OF C( )MM()N PLEAS OF
l'lJMIIEI{LANI> COUNTY. I'ENNSYLV ANIA
v.
CIVIl. ACTION . LAW
LANARK INVESTMENT:
FUND.
Defendants
NO. 9l!.6502 CIVIL TERM
ORDER OF CO(JRT
AND NOW, this ,; II day of October. 1999, upon consideration of I'laintilrs
Motion to Compel Delendant's Answers to Interrogatories, a Rule is hereby issued upon
Defendant to show cause why the relief requested should not be granted,
RULE RETURNABLE within 20 days of service.
BY THE COURT.
J.
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esley Oler, Je) :'
.P.'f:W .J1'LL\.~J
10'.:519
RLK
Sally J, Winder, Esq.
701 E, King Street
Shippensburg, PA 17257
Attorney for Plaintiff
Toni L. Cavanaugh, Esq.
JACKSON, CAVANAUGH &
SHIV ALE, P.C.
Mills of Victoria, Suite 301
1478 Baltimore Pike
Springfield, P A 19064
Attorney for Defendants
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1I0PEWELL TOWNSJlJP BOARI)
OJo' SlJ PERVISORS.
IN TilE COURT OF COMMON PLEAS OF
('(1l\lIIERI.ANl> COUNTY
PlalnlilT
\IS
CIVIL ACTION - l.A W
LANARK INVESTMENT FUND.
Defendanls
NlII\1B.:R: 98. 65lll CIVIL TERM
APPEAL FROM D.J. JUDGMENT
l'.LAlNTIFF'S MOTION TO COMPEl. DEFENDANT'S ANSWERS
TO INTERROGATORIES
AND NOW. COMES the PlaintitT, Hopewell Township Board of Supervisors, by and
through its solicitor, Sally 1. Winder, Esquire, and respectfully files the within Motion to Compel
Discovery, and in support thereof, asserts the following:
I" On or about December II, 1998, Plaintiff, Hopewell Township Board of
Supervisors, filed a Complaint against Defendant, Lanark Investment Fund, alleging that an
airplane landing strip had been constructed upon the property of the Defendant in violation of the
Hopewell Township Zoning Ordinance and without having obtained a zoning permit. all in
violation of the Hopewell Township Zoning Ordinance and that such airplane strip continues to
exist and be used in violation of township ordinances.
2. Defendant, Lanark Investment Fund, after an Order dismissing preliminary
objections, filed an Answer in this matter and subsequently a suplementary answer and New
Matter, which was never served upon Defendants.
3. Defendants Answer and New Matter alleged an intention to use the landing strip
and airplane for crop dusting and for uses accessory to agricultural uses permitted in the
Agricultural Zone. The New Matter also alleged the private right of Defendant to improve its
property and use its property without the necessity of any permits from the Township.
4 As shown by thc copy of trans milling corrcspondcncc dated April2!!, 1999,
Interrogatories addressed to Dcfendant, I.anark Investment Fund and I.anark Investment Fund
were served on the Defendants through counsel for the Defendants, Lec A Stivale, Esquire,
August 2!!, 1999"
5 More than thirty (30) days have passed from the scrvice of the Interrogatories
upon Defendants"
6. As of the date of filing of this Motion, Defendants have failed to respond to
Plaintill's Interrogatories by filing any Answers or Objections to Interrogatories"
7. Pennsylvania Rules of Civil Procedure 4006(a)(2) provides that the answering
party shall serve a copy of Answers and Objections, ifany, within thirty (30) days of the service of
Interrogatories.
8" In failing to respond to Plaint ill's Interrogatories in a timely manner, the Defendant
has violated Pennsylvania Rules of Civil Procedure 4006(a)(2)"
WHEREFORE, Plaintiff, Hopewell Township Board of Supervisors, hereby requests that
this Honorable Court grant this Motion to Compel DiscovelY and Order the Defendant, Lanark
Investment Fund, to respond to Plaintill's Interrogatories within Fifteen (IS) Days.
Respectfully submitted,
s~~~
Solicitor for the Board of Supervisors of Hopewell
Township, Cumberland County
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SALLY J, WINDER
Attorney at Law
701 E. King Street
Shipp~nsburg, ~A I72S7
OCT 0 ~iS9Si/J