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Home My WebLink About98-06503 ~\ .t-, , ~: I~ , i I l '1 I ~ I ~ I~ '7 >- I .~~ ~ ~ ~ ..~ ~ ~ I ~~ I~ "e..,. ~ \) " ~ ~~ ~~ I ~ .~ .- . . .':) I~ "- S' ,,:;)) .;:::s- 1I01'.:Wf:I.L TOWNSIIII'1I0,\IW OF SIIPi:I(VISOI(S. l'laintiff IN TIlE ('Ol/In OF COMMON I'LEAS (n' ('IJi\JHEULANJ) COIINn' vs MEADOWLAND 1I0l.OINGS. Drfrndanls CI\'II. ACT/ON - LAW NlIJ\I8ER: 98 - 6SOJ. CIVIL TEUJ\1 NOTICE TO DEFEND You ha.'e been .\ul!d ill ('(JUTI If you wish to defend againstlhe claims set tanh in the following pages, you must lake aClion within TW ENTY (20) DA YS aller this Complaint and Notice are served, by entering a wrillen appearance personally or by allorney and filing in writing with the Court your defenses Dr objections to the claims set lonh against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Coun withoullimher notice tor any money claimed in Ihe Complaint or tor any other claim or relief requested by the Plaintiff You may lose money or property or other rights important to you" YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IFYOU 00 NOT HA VE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE pA 17013 (717) 249 - 3t66 By: ~~ jW.~- Sally J. inder Attorney for ptaintiff 70 I E. King Street Shippensburg,PA 17257 /I0PEWEI.I. TOWNS/I/I' UOAlm OF SIII'.:KVISOKS, 1!Ii TIU: COIIKT OF COMMON I'I.MS OJ" ('IIMI..:KI.ANI) COtJNT\' 1'lninlilT \'5 MEAOOWLANI) /I0U)IN(;S, Utrtndnnls CIVIL ACTION - LAW Nlli\JU.:K: 98 - 6SllJ CIVIl. n:KM APPEAl. FROM D.J. JlIDGMENT C.~HLAllU COMES NOW,thc Plaintill: Hopcwcll Township Hoard ofSupcrvisors, by and through thcir counscl, Sally J. Winder, Esqnire, and docs represent as follows I. Plaint ill: Hopewell Township Hoard of Supcrvisors, is a dnly constituted and elected Board of Supervisors ofa properly constitutcd and existing township of the second class as defined in the Second Class Township Code Act of May I, 1993 (P.L. 103 Number 69) reenacted and amended November 9,1995, (P.L. 350 Number 60) as amended, having a principal place of business at 257 Newburg Road, Newburg, Hopewcll Township, Cumberland County, Pennsylvania 17240" 2. Defendant, Meadowland Holdings, is Jisted in the Cumberland County Recorder of Deeds Office Deed Book 164, Page IDOl, as a "contract and declaration of pure trust" having an address of 12 Carroll Street, Suite 180, Westminster, Maryland 21157, and having shown an address on the Notice of Appeal from District Justice Judgment tiled November 15, 1998, as c/o 2331 02 East Avenue S 247, Palmdale, California 93550" '" , I I, ~. t I. r~: f' M At the time of the Deed conveyance August 15, 1')'17. and the recordl/lg of the deed Seplember 2.1, 1')l)7. ilnd continUIng Ihrough the dale oflhe delil/lh Judgmelll, November 16, 1 'J'JM, entered against Meadowland Holdings IIJ the District Justice Court, Magisterial District O'J - J - 0 I. Ihe landing strip has been fun her improved and the property at 40 I Shippensburg Road. Shippensburg, Hopewell Township. Pennsylvania. has been used as an airplane landing strip and private ilirpon. 'J. Under the Hopewell Township Zoning Ordinance. enacted April I. 1991. and as amended, April 20. 1 'J98. a zoning permit is required prior to the change in use of a structure or tract ofland 10. Prior to the Summer of 1997. the subject premises were never used lor an airplane landing strip or private airpon" II. Delendant Meadowland Holdings has constructed. or allowed to be constructed, upon its propeny improvements to the airplane landing strip which facilitate take-oft. and landing" 12" Defendant has used, or allowed the use 01: the premises as an airplane landing strip and private airport on a Irequent basis including the storage of aircraft Irom September 1997. to present. '.! / r) I , l~ I' I. t . 13. Neither Defendant nor its predecessor in title or any agent or representative applied lor, or obtained, a zoning permit as required prior to the construction of the private 3 airport and landlllg stnp and change of the use of that land limn i1gnculturallilnd III airport and landing strip use 14. A Zoning Yl(llaUon Enl(lrcemcnt Notice was scrved upon Oclcndant January 23, 1998. A copy oftl"'t notice is attached herelll. marked Exhibit "IJ," and incorporated by rcfcrcnce 15. No appeal of the Entorcemcnt Notice was tiled with the Zoning /learing Board of Hopewcll Township. 16. Pursuant to the terms of the Hopewell Township Subdivision and Land Development Ordinance, enacted June 1991, no grading, excavating, changc in contours, removal or destruction of topsoil. trees, or vegetative cover may be commenced unless and until a land devclopment plan has been approvcd by the Board of Supervisors and recorded" 17" No plan tor land development was ever submitted to Hopcwell Township by Defendant or its predecessor in title, thus no approval for land development has ever been granted tor an airplane landing strip or private airport. 18. Oefendant has violated the Hopewell Township Subdivision and Land Development Ordinance by tililing 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 rcquired grading and excavating on the property all of which constitutes site improvements requiring prior land devclopment plan approval. 4 WHEREI'OKE. Phuntitr prays this Ilonorable ('ouft enter Judgement mliwOf of l'hnnlltr and against Oefendam in the amount of hve Hundred ( $5UU UU ) Dollars per day fromthc datc of the Oislrict Justice judgmcnt October 21. Il)l)ll, to the prcsent date tor eaeh day of violation plus costs incurred by the Plaintilr and reasonable attorney Ices all as provided by law Respecttidly submitted. .&&!L{, ){[kJ<- Sally J \S!inder, Esquire Solicitor lor the Board of Supervisors of Hopewell Township, Cumberland County 5 t f.. II' I '( L_ ",., R__ 01 Dtoda . ~.~~. d ')'6 '30 Ii T.. l'areoll.D. No. TillS DEED MADE TI\IS IS'" <lay of '~~,J'" T ninely.seyen (1997). , In Ihe year of our Lord one Ihousand nine hundred BETWEEN MELVIN S, BEAM and ANNA M, BEAM, husband and wife, of401 Shippcnsbur~ Road. Shippensbur~, Pennsylyania, hereinafter referred to as Oranlo", AND MEADOWLAND JlOLDlNCS. CONTRACT AND DECLARATION OF A I'URE TRUST, of 12 Carroll Street, Suile 180, Weslminster, Maryland 21157, hereinafter referred 10 as Grantee, WITNESSETH, that for and in consideration of the sum of FORTY-FIVE THOUSAND DOLLARS ($45,000.00), in hand paid, Ihe' receipl whereof is hereby acknowled~ed, Ihe said Oranlors do hereby ~rnnl and conyey, in fee simple to Ihe said Orantee, ils successors and assi~ns, ALL Ihal certain Iract of real eSlale logether with improyemenls erecled thereon known ns 401 Shippensbur~ Road, lying and being siluate in Hopewell Township, Cumberland Counly, I'ennsylyania, more fully bounded and described as follows: BEGINNING at a poinl in the interseclion of 1'0 696 known as Shippensburg Road and T.33 I known os Ensl Creek Road at the comer oflands now or formerly of Doris J. Martin; thence along said lands now or formerly ofMnrtin North fifty (SO) degrees forty.six (46) minutes forty-fiye (45) seconds East two hundred thirty and zero hundredths (230.00) feel to a point; thence along said lands noW or formerly of Mnrtin North thiny.six (36) degrees fiye (OS) minules lWenly (20) seconds West one hundred thirty,one and ninely-eight hundredths (131.98) feel to a poinl; thence along said lands now or formerly of Martin North eighty-fiye (85) degrees fifty-fiye (55) minutes thirty-seyen (37) seconds West two hundred Iwenly-five and zero hundredlhs (225.00) feel to a point in Po. 696, also known os Shippensburg Road; Ihence in said roadway North eighteen (18) degrees forty.eight (48) minutes twenty.fiye (25) seconds West twenty-three and forty.eight hundredths (23.48) feel to a point at the corner of lands now or formerly of Charles E. Boer; Ihence along said lands of Baer South fifty-fiye (55) de~rees nine (09) minutes nine (09) seconds West three hundred ninely.four and sixly-one hundredths (394.61) feel 10 a point nt the comer of lands now or formerly of J. H. Myers; Ihence along said lands now or formerly of Myers Soulh forty.eight (48) degrees thirty-two (32) minutes eighteen (18) seconds West two hundred twenty and twenty-nine hundredths (220.29) feet 10 a poinl; lhence along said lands now or formerly of Myers Nonh twenly.eight-(28) degrees thirty' lhree (33) minutes thirty,one (31) seconds West fiye hundred fifty.two and seyenty.fiye hundredlhs (552.75) feet to a point; thence along said lands now or formerly of Myers North eighty (80) degrees twent;r.fiye (25) minutes fifty,three (53) seconds East one hundred forty-one and ninetY'lhree hundredths (141.93) feet to a point at the comer oflands now or formerly of Richard A. Dille; lhence along said lands of Dillc Norlh eighty'lhr~e (83) degrecs fony.fiye (45) minutes forty.nine (49) ilob~ 164 PAGf100i E-~v'i- A MAAK. WEIGLE AND PERICINS _ ATTORNEYS AT I.....w _ \2& EAST KING STAEET - 5H1PPENSBURG. PA 1'7261.1381 :..... HOPEWELL TOWNSHIP CUMBERLAND COUNTY 257 Newburg Road Newbure. PA 17240 January 23. 1998 MEADOWLAND HOLDINGS 12 CARROLL STREET SUITE 180 WESTMINSTER MD 11157 RE: ZONING ENFORCEMENT NOTICE 401 SHIPPENSBURG ROAD SHlPPENSBURG PA TAX PARCEL NOS. 11-09-0509-014 and 11-09-0507-014 Dear Sir or Madam: As the owner ofrecord of the above referenced property, the undersigned is notifYing you of a Township Zoning Ordinance violation existing on property 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 of an airplane landing strip upon this property. 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 loning 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 constl'\lction 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. (Copies 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 property 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 development plan and a valid zoning permit from Hopewell Township within thirty (30) days of receiving this notice. PYS510 1998-06503 '~. Cumborland county Prothonotary's Ottico Civil Caso lnquiry HOPEWELL TOWNSHIP BD OF SUPt:RV (vs) MEADOWLAND HOLDINGS Page 1 Reference No..: Case Type.....: APPEAL - OJ JUdJment......: .00 Jud e Assiqned: BAYLEY EDGAR B Dis osed Dasc.: ------------ Case Comments ------------- Flled....,...: Time......... : Execution Date Jury Trial... . Disposed Date. Higher Crt 1.: Higher Crt 2.: 11/16/1998 2:12 0/00/0000 0/00/0000 ................**..........**.............................**....,-,..__........ General Index Attorney Info HOPEWELL TOWNSHIP BOARD OF PLAINTIFF WINDER SALLY J SUPERVISORS 157 NEWBURG ROAD NEWBURG PA 17240 MEADOWLAND HOLDINGS DEFENDANT STIVALE LEE A 12 CARROLL STREET STE 180 WESTMINSTER MD 21157 ..,.,.,._.-._"..,_.-._,----*,-,------,.,.,-,,_.---,_.--,_....,--,-,,_._,,_._,-- .. 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 _ _ - - - - - - - - - - - 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 TONE LEE CAVANAGH ESQ PRELIMINARY OBJECTIONS OF DEFENDANT MEADOWLAND HOLDINGS ------------------------------------------------------------------- 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 _ - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information .. .. Fees & Debits Bea Ba1 Pvmts/Adi End Bal .. ********************************i********~************************************** 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 * ******************************************************************************** notice of Appcall'rom Di~lricl Ju~tice Judgment wa~ tiled wilh re~pecl 10 each cue wilh Rule issucd in each case directing the tiling of a cumplamt The Complaint was tiled and the Delcndant enlity in each case tiled Preliminary Objcctiuns through counsel "lIurnev Slivale representing each Dclcndanl entily. The preliminary objection in each case is service of the complaint. The service addressed is the service of the original District Justice complaint not the Complaint tiled with thc Cuurt ufCollunonPleas. ARGUMENT The Dclcndant entities in these related complaints are not corporal ions or partnerships" Each is, according 10 documents tiled in the Cumberland County Recorder of Deeds Ollice, a "Contract and Deelaration ofa Pure Trust"" Each is a grantee of certain property in Hopewell Township from r,.'lelvin S. Beam and Anna M" Beam, husband and wife, and each lists a dced address of 12 Carroll Street, Suite 180, Westminster, Maryland. The Return of Service tiled in the District Justice oilice verities service atlhat address in Weslminstcr, Maryland" Defendants argue there is no personal service and no service by mail as required in the District Justice Rules and Rules of Civil Procedure. However, the Defendant entities are served where the complaint is served upon a person for the 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 office at a location and the Comment to the Rules specilies that mail service is not permilled because of the infrequency with which such address or location may be used by the association or entity. Alld in the circumstance of dil1iculty in service and allempts to elude service, the Rules provide tor appearance as a waiver of defects in service The District Justicc system und its Rulcs ure designed to allow access 10 the Judicial System without all of the lormalities of the court which might inhibit use b>' the general pulic. The District Justice otlice is designed to bc open lor tiling claims and adjudicating mailers without the necessity of having counsel" To Ihat end the technical , . aspects of filings and motions arc simplitied in the District Justice Rulcs Although, thc Rules with respect to service of Complaints and Notices of Hearing are designed to provide notice to Defendants should they choose to appcar and detend c1uims, the District Justice Rules provide that appearance by counsel waivcs any defect in service. District Justice Rule 314.C clcarly states that "Thc appcarance ofu detendant in person or by representative or the tiling by him of a claim in the case shall be deemed a waiver of any delect in service but not a waiver of defect in venue" " The District Justice tile contains as part of that Court record, the lettcr of Attorney Stivale dated July 21, 1998, which relers to CV -0000 I 08-98 (the complaint against Lanark Investment) and CV -000 I 09-98 (the complaint against Meadowland } ;., Holdings), a copy of which is attached hereto as Exhibit A This letter clearly states that ~. . I F,: I. Attorney Stivale is counsel for all Delimdants and it constitutes the entrance of an appearance on behalf of the dcfendants in those cases" The letter addressed 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 signitieance of this letter is to waive any defect in service and to alert the court, and in this instance, the District Justice, that the f. ~ Defendanls in these actions arc aware of the pendin!( actIon. alld Ihat they arc represellted by counsel who will act on Iheir behalf The film!! uf the Nutice uf Appeal hum District Justice Judgment and the PrcliminulY Objectiuns tiled by Allurne}' Stlvale bUlh verily that the Defendant entilies and counsel have been apprised uf the course of events Ihroughout this action" Thc Prcliminary Objections should be dismissed and an Order enlered directing thc Dcfcndants 10 file Answers within twenly days of the order The Pennsylvania Roles of Civil Procedure Rule 1028 Note docs specify that whcre thc preliminary objcctions arc as to jurisdiction, the Objectiuns arc to be elldorsed with a Notice to Plead sillce the Objections cannot be determined Irom lacts of rceord" In this case no Notice or Pleading has Occurred. Therefore, if it determined by the Court that there arc not sullicicnt facts of rccord, it is sobmillcd that an ordcr be cntered to strike the Preliminary Objections as not properly liIed and order the Answer to the Complaint be timely liIed. Respccllully submittcd, JuJiL- Sally 1. \ inder Solicit ,Hopewcll Township Board of Supervisors .... .. ~<I ......, ,.~... oJoJ. ol"l.O,) l.IoJ U. <I. ", WJUU! Jul.21. 1998 IQ:~6AY JACKSON C~VANAC~ & STIVALE.P.C. ~c.2!6S P 2 lACK80H, CAVANAGH" STlV4LE. P.c. La. om_ _tt-. 10110 311 U" 110I"- J'IU 'N.~ ('10) -.e71 IPf\aIlIIW. "-1.....1"" r.. ('If)~' ...... J_I.... IMAIU ...... ~ 1M Canuc,. ""'~"""lII_' ..- .........~ .AIIt~1I1C1 luI121. 1998 VIA FACSIMILE N 717-531-3308 11le H=oraDle DaWS P. PertlDl DilllriGc JUIlice ~ Dlstzillt 09-3-<11 81 WalzMBOlrOIIIRoad P.O. B~ 361 SbippcnsblltJL PA 11257.0361 REa BopcweU To'lt'lUh.lp Mattcn . CV-GlKlO25O-!l7, CV-OOOOI0ll-98 and CV-OOOOIO!J-!l8 o..r.!udal Pakina: This offic:c ~ the ~...." iD. the above cap!illllCd 1IWII:n. Ba:a\l3c of It r"llfll<:1 in my rohcdlllo,l wi11apprcduc a c:oari",'.n~~ o!1hA:manel'lhlOU&hAQjlUSt 1$, 1998, I apprec:ialc Y011r HOIIIlt.s cClllslcleraliOll. oftbls requesL Vt:t:y 1II11y y01lCl, '-~~ Leo A. StIvalo cIl~ci '= nonCllSlmlm . co: Sally Whldu. Esquire (11ac&imiJe f# 717-532-3113) 07/21/98 11:56 P,002 . TX/RX NO,2013 f'Yh~~I'r A , . SALLY J. WINDER Auorney a1 Law 701 E. King StrecI Shippcnsburg, PA 17257 . . , 0) , .' JAN 4 1999,,\ ( . '\:' " ; i '-) JACKSON,l'A V ANA(jlf & STlV AI.E. I'r" /lY: I.EE AI.AN STIVAI.E, ESQUIRE 1D1/4MII TONII.EE CA VANA"'I. ESQUII<E 1D1/77600 SUITE 301, 14H'IIJALTIMORE PIKE SI'RINGFIEI.D,I'ENNSYI.VANIA 91U1r4 (610) 604.4970 ATroRNEYS FOR DEFENDANT - couR.;rOr;COMMON-,'i.EAS OFCUMBERLANDC()UN1;Y. PENNSYLVANJA- CIVIL ACTION - LAW ~ I . HOPEWELL TOWNSHIP SUPERVISORS 257 NEWBURG ROAD NEWBURG, PENNSYLVANIA, PLAINTIFF NO. 98-6503 CIVIL TERM vs. MEADOWLAND HOLDINGS 2331 D2 EAST AVENUE S 247 PALM DALE, CALIFORNIA 93550. DEFENDANT MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 1'. , L .~ f f, i [: ! 1" H SUMMARY The Defendant in the above captioned mailer was never properly served with the Plaintifrs original Complaint as filed in the office of District Justice Perkins, Due to the lack of proper service, the judgment appealed from is a nullity due to the lack of personal jurisdiction over Defendant. Since District Justice Perkins did not have personal jurisdiction over Defendant at the time he entered judgment against Defendant, the judgment is invalid and the Plaintiffs Complaint must be dismissed from the Court of Common Pleas. Plaintiff cannot litigate a mailer against a Defendant upon which he has failed to make service. ISSEt;li v .. ( 1 " WIIETIIER TillS couln II'\S l't:l~li()NMdJLI!Ili'!J5'TI()N OVEH '1'11,1:; J)t:t'ENJ)ANT WIIt:N Tilt: J)E,IENJl,\NT W '\SNEVEI~ SERVEJ) WITII OIUGlN,\1. ~--_.'_'-'._--_."'----"- I'IWCESS I'" Tilt' J)ISTlUCT ,ItISTlC'E C()lIl~T'! ~-_..-.~...~_._--.._-_.,---- WIIETIIER TilE ,IUJ)Gl\1ENT ENTEREIl IlY J>JSTRICT ,JllSTICt: PERKINS IS INV AI.IJl IlECAUSE IT WAS ENTEREJ) WITIIOlIT TilE COVltT IIA VING PERSONAl. ,ItJlUSIlICTION OVER J)EJlENDANT'! ~ JI,\crs " f "' On July 8, 1998, Plaintiff attempted to serve a Complaint on Defendant at 12 Carroll \ I .. Street, Westminster, Maryland. Defendant did not then and docs not now maintain an office at 12 Carroll Street, Westminster, Maryland. Plaintiffwas infonned by an adult individual at 12 Carroll Street that she was not aware of whether the Defendant maintained an office there and refused to accept service until she could detemline if the Defendant had an office at 12 Carroll , ) '\ 1 Street. Plaintiff leli the Complaint at 12 Carroll Street even though it had been refused by an individual in charge of the premises. Plaintiff did not obtain a signature confirming that the Complaint had been accepted, When it was confirmed that the Defendant did not have an office ~ at 12 Carroll Street, the individual in charge of the premises retumed the Complaint to Plaintiff. The Plainti ff appeared before District Justice Perkins to obtain ajudgment against Defendant despite knowledge that the Complaint had not been properly served upon Defendant. District Justice Perkins entered a default judgment against the Defendant despite the fact that he had been infomled that the Defendant had never been served with the Complaint. The Defendant was never served with the Complaint, never appeared in court and was made aware of the l :1' -', x" Irt i{i ') I.; I ~II'""':': , '? r:, li':'~ Complaint only alier a default judgment was entered against it. The Defendant appealed the judgment to the Court of Common Pleas in order to have the Complaint dismissed or for the matter to be remanded to the District Justice level in order that the judgment against the fj ~. I Defendant he vacatcd. Thcre was a 1:lIal dcfect on thc \:Il'e of rhe record at Ihe lime judgmcnt was enlcred ag:linst Defcl1llanl, 10 wit, scrvice had not hccn made uponthc I kfcmlaut, thcrclllrc. the Court did not have personal jurisdiction ovcr the Dcfcndalll and lIas wilhoutl'ower to enlcr a , , , judgmcnt against it, IUJI,ESOFI.AW I r , . if Thc Pcnnsylvania Rules ofCivill'roeedure regarding servicc (400, L'I SCI,.) as well as thc ~ Rules of Civil Procedure for District Justices regarding service (307.1'1 SL'If.) require that service D1SCUSStON of a Complaint be made upon the Defendant or a person authorized to acccpt scrvice either in person or by muil. "Service of process is a mechanism by which a court obtuins jurisdiction of a defcndunt, and therefore, the rules concerning scrvice of process must be strictly followcd." Cintas i (' I J .1 , Comoration v. Lce's Cleaning Services. Inc., 700 A,2d 915 (Pa. 1997). "Without valid service, a court lacks personul jurisdiction of a defendant und is powerlcss to enter judgment ugainst him or her." Id. "Thus, [invalid scrvicc] is not merely a procedural defect that can be 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 thejudgment against the Defendant vacated. The individual in charge of 12 Carroll Street had no connection to the Defendant and no 'f. , r 'r'~;' " ;:~~., .-.,-" I , , I ! 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 defendant notice of the action against it." III The Plaintiff in the instant action had no reason to believe thatlhe individual , , wilh whom it had contacl :11 12 Carroll Street was artilialed wilh Ihe Defendant in :IIlY way. To the eontmry, the pml'l:ss s,'rver was specifically loldlhallhe Defendant mighl not even have ollkes OIl 12 ('arroll SI,,"'( ali<I thai if it did, Ihe process server would be su informed in short order. While the individual with whom Ihe process scrver was dealing answered the phone, the process server, without detennining whether the Dcfend:mt had offices at 12 Carroll Street. lel1 the Complaint OIl 12 Carrull Strect without obtaining a signalure 10 confinn aeecptance. The Process server may as well have len the Complaint on a slreet comer. "Proper service is a prerequisite to the eourt'sjurisdietion over the person ofa defendant." Commonwealth v. Shinholstcr, 718 A. 2d 1246 (Pol. 1998). "In detennining whether proper service has been made, [the] Superior Court rcquires strict adherence to the roles. Id. The Plaintiffs actions were woefully inadequale attempts OIl service and do not even approach adherence to the roles of service. "I f service is not properly made, in the absence ofa waiver of an objection to invalid service, it is irrelevant if the defendant subsequently learns that the constable lel1 a copy of the complaint at a location that was no the defendant's residence." Id. It is improper to serve an individual by leaving a complaint at another individual's home just as it is improper for Plaintiffto attempt to serve Defendant by leaving a copy of the Complaint al another's place of business. CONCLUSION The Plaintiffs cannot maintain an action against the Defendant without first securing for the court personal jurisdiction over 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 alternative, the maller should be remanded 10 District Justice Perkins' court wilh instroetions (hat the judgment against Defendant be vacated. ~F.fIJ)AVIT 1. I, Bonnie Nobile, being duly sworn do hereby depose and say that on July 8, 1998, a man with papers to serve appeared at 12 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 at 12 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 Holdings might not have an office at12 Carroll Street, the man attempting 10 serve the Defendant lell the papers there without a signature confirming that they had been accepted. 8. I checked to see if Lanark Investment Funds and Meadowland Holdings still maintained offices at 12 Carroll Street in Westminister, Maryland and , i' was told that they were no longer at that address. 9, After learning that Lanark Investment Funds and Meadowland Holdings were no longer at that address, I immediately returned the papers by certified mail to the individual who left the papers. Date I ~ J;; cr /9 f' 1 ~~ Bonnie Nobile Befi:m: me, the undersigned notary puhlic, this day personally appeared Bonnie Nobile, to tJ i h ! t:~. L:', me known by a sufficient method of identification, and signed her name above. Subscribed and ~A: to before me this -/ cP-'7 day of ~., ~ ,199/,. - -:/"Z Notary Publie( d "Y. ~Of"'7.M, [) c:Jeh- "7 :-;;;<f8 I (!p-. Vip. ,.,."" .' Save-A,.-Jlatriot l~'en.ov.lshif.) 1'. I'~" OUire [tor91, WC\!I,in,,,r,lb'11.0I1 21 I'll 1'.1 (410)~' 741-:J 1 AX (4101!l''~ ~M9 '7':}01'.' t)1~ ,.Al..t ...~..~I ' 0, ." S,""~Jj, .y- 'lua '}!-.c "r;,.~,J ().,'!! C}~~ I 'i/79;( rJ ~ -- 0~~ / ~~_.Q."o-<Jf ct.. .OA,C f/:Y-t~;;tJ.<J.-t ~ g9/f\-~) JJ)..~.1 WL ft.;L.::;t:Jv~ '1'-i -"-'/ f)7\"c1L (J..)J~:L~ CfJ-jf d~{ 1?.f, '-(/~ . 0/1-> ~:t ~ pAfi.Vva..-', :.t:u:cl /-2 " h--- uJrrt-J cf ~ j:), --I.G.>>C ~~::tuJY1 ~ -It.lL ~ /-VeAL Tl. 1--0- ~'-f~, #_ch.:d.- ~. ~-vU.~ ,-~__ ft . OA-L f'UJ .fl6~ ~ ~ ~~j(.:d....a.- ~ ~7J(/ ~UJi. ~rr. ~- ~-P y~(>>~ ..... ,.... , h'; c<: "' -". t..~ ,-- C' lJJ_ c..i-;. ".. r;" 1-. .-!-- ~..- f?~ co, er; u...;L. C., ct~, "' L~ ."" u.. rro ) It. C G' ,- . JACKSON. CAVANAGH & STIVALE, P,C. BY:LEE A. STlVALE, ESQUIRE 10146511 TONI LEE CAVANAGH, ESQUIRE 10#77600 MILLS OF VICTORIA SUITE 301 1469 BALTIMORE PIKE SPRINGFIELD, PA 19064 (610) 604-4970 Allornevl 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, 98.6503 CIVIL TERM MEADOWLAND HOLDINGS 233102 EAST AVENUE S 247 PALM DALE, 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} day, from service hereof or a judgment may be entered against you. " i L:6u- ('u.~ Toni Lee Cavanagh, Esquire Attorney for Defendant - JACKSON, CAVANAGH & STIVALE, P.C. BY:LEE A. STIVALE, ESQUIRE 10148511 TONI LEE CAVANAGH, ESQUIRE 10#77800 MILLS OF VICTORIA SUITE 301 1489 BALTIMORE PIK:: SPRINGFIELD, PA 19064 (610) 604-4970 Attorneys for Delendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION HOPEWELL TWP. BOARD OF SUPERVISORS 257 NEWBURG ROAD NEWBURG, PA 17240 Plaintiff v. No. 98-6503 CIVIL TERM MEADOWLAND HOLDINGS 2331 02 EAST AVENUE S 247 PALMDALE, CALIFORNIA 93550 Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant, Meadowland Holdings, 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 Court 09-3-01. 2. On July 8, 1998, a process server attempted to serve the Plaintiffs Complaint on the Defendant in the main office at 12 Carroll Street, in Westminister, Maryland, a location containing several office suites occupied by several different businesses. 3. Defendant did not have an office at that location. 4. Located in the main office al12 Carroll Street on July 8,1998 was the Save-A.Palriot 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, Meadowland Holdings, 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. Respectfully submitted, Date: 12/28/98 onl Lee Cavanagh, E I I Attorney for Defendant , ! f' ,3 f; i if ~ , -;;.. PR,u:CIPt: FOR J./STIN(; C,\St: FOR ,\R(;lIlm:NT (MU~1 bl' lypt,,'rilll'lI and 5ubmilltd in dnplirall') TO TilE "ROTI/ONOTARY OF ClIMBERLAND COIINTY: Please list the within matter for the next: .__ _ ~- Trial Argument _~ Argument Coun CAPTION OF CASE (entire caption musl be slaled ill full) HOPEWELL TOWNSJ/JP BOARD OF SUPERVISORS (Plaintio) v. MEADOWLAND HOLDINGS (Defendsnl) No: 98 CIVIL 6503 1998 I. State matter to be argued (i.e. plaintilf's motion for new trial, defendant's demurrer to complaint, etc.) Preliminary Objections of Defendant, Meadowland Holdings 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. I will notifY all panies in writing within two days that this case has been listed for argument. 4. Argument Court Date: COMMONWEALTH OF PENNSYLVANIA COURT OF C.llMMON PLEAS Cumberland County JUOICIAL OISTRICT 9th NOTICE OF M?E"L FROM clo JUl D2 But Avenue 8 , 247 09-3-01 ...."... ... "'............." elf" "A.I I'" co.. -1T-~ PALMDALB. CA 93550 OA" ... ,,,.......,. I" TOI' c.... 0"'"_''''' '1).'._" October 21, 1998 Hopewell Township Bd of Superviaor,s vs. Meadowland Holdings c....... .... c.v ~19 0000109-98 IT 19 This block will be signed ONLY when this notation is required under Pa. R.C.P.J.P. No. 10088. This Notice of Appeal, when received by the District Justice. wIll operate as a SUPERSEDEAS to the judgment for possession in this casc. II."A"U"'.I' ....".~~A..l'."' .... "1'''0'''''',. .11I A....T Signature of ProrhonotJry O( Deputy If appellant was Claimant lsee Pa. R.C.P.J.P. No. 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty 1201 days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE IThis SIIction of form to be used ONL Y when appellant was DEFENDANTlsee Pa. R.C.P.J,P. No, 1001171 in action before DistrictJustice. fF NOT USED, detach from copy 01 notice of appeal to be SIIrved upon appelleel. PRAECIPE: To Prothonotary Enter rule upon Hopewell Township Bos:rd of Supervisors . appellee(s). to file a complaint in this appeal (1() , Name of appellee(s} (Common Pleas No,.a-lo5D3 ~~.( Tet M I within twenty (20) days after service of rule or suffer ent '- f judgment of non pros. RULE: To Ropewell Township Bd of Supervisors. appellee(s) Name of appellee(s} Signature of ~t o'hi$~ or.", (1) You are notified that a rule is hereby entered upon you to file a complaint in this appear within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do nnt fiie a complaint within this time. a JUDGMENT OF NON PROS Will 8E ENTERED AGAINST'yOU. (3) The dale of service of this rule if service was by mail is th~ date,~L~.~:;~~: ::":'~::,i' I ,'r~"~,-::l:" ... ~,.;: Date'. 1\.6\1. lto~n 19 015 lV"'''~''''""'''''''J"Y,;'~~:;::':'.\\\~'\A.D,\lI'\c(lil -..:: u , ~. <.\{....T..''l ~ "'-~'~~'=. ~..::'-'-':'~j Signature of P~othonotary or Deputy ~:.!"l:!:I.M.';.' .....'.iii::.:"t4 hl~~,'!'~"''':;~'''''i .1';,.!"l"'ClY. ~ ~i<;, '"., ;,';: ';:OJ ;~ AOPC 312.84 ." . ", '" ;10 )' hI-ii.. -,.' ...., -~,' .'}', ~1It ;..,/~...~ ..~_..... --l 758 58"0 P \!J 83 758 529 P 483 758 525 r,~ us Postal Ser"ICO Receipt for Certified Mail No In<;uranco Cover3ge Prcwidoo Do not uso lor lnl~tnillional MiI;1 (S~~ Senllo .~."'\ I .;'- J..:Gl5.l... us PoslaJ Service Receipt for Certified Mall No Insurance Coverage Provtded. 00 nol use lor International Mail See reverse) SonIIO :"tl\;/'.--.. , Postage ,..1 Certified Fee Special DeliY1lry Fee lO.oo Restrided Delivery Fee lO.oo on '" .1.10 ~ lO.oo $ n.n Rp.slnc1ed Octll~rv F~e s ~. 10.00 lO.OO 11.10 10.00 Certified Fee POSIJ1)e Certl!iedFee $peoal OclNerf Feo SpeoaJ Oelr-ery Fee Restricted De~'o'flry Fee .0.00 $1.10 on '" '" . , (~,," \~'" , .t:,;, '+.-.... ,-;0;:.- 'vi , , 'F' ~' " , , '.-;"' . :, \~";!' r ;;; 31, .:l(i:.;/ , ~ ..., ('" '0 "';..j!' . :0... " "', -: .'~ ,\ '.\. :, .'~' l1t,~, . " ~ , Yo" ;.', ; ;!, ..*",:;~) . ':, 1'0{' '1 ., :/. '?,~ 'j. , COMMO~A~~ OF peNNSYLVANIA COURT OF COMMON PLEAS Cumberland County JUOICIAL OISTRICT 9th NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. Cft<- lc~D3 C-,-v,/:R(1l1 NOTICE OF APPEAL Notice is given that the appellant h,n fded ,n the above COUft of Common Picas an olppeal from the judgment rendered by the Diu,ict Justice on the dato and in the case mentioned below. Meadowland Holdings NA.... CU' A~~.'-"AN' """.0"', "'.. D. ..."M. ."" D.'. c/o 2331 D2 Bsst Avenue S , 247 09-3-01 ADID.... O~ .".."""N' elf' .,...,. .." Coo. ~'oqrJ(MlVlm PALMDALB, CA 93550 OAl'. ... '"0........., "' 1'''. c.... 0" ,"~~,.." 'l....""....'. October 21, 1998 Hopewell Township Bd or SupervisoJ;8 vs. Meadowland Holdings c........ NO. tV .19 0000109-98 LT 19 This block will be signed ONLY when this notation IS rt'quired under Pa. R.C.P.J.P. No. 10088. This Notice of Appeal, when received bv the DisHict Justice, will operate as a SUPERSEDEAS to the judgment for possession in ttllS case. 'UI"''''1'U''. 0," "'''''U.'''''1' 0" MI. "'1'1'0.....1' 011I "'....1' If appellant was Claimant lsee Pa. R.C.P.J.P. No. 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. S,gnature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE IThis section of form to be used ONL Y when appellant was OEFENOANTlsee Pa" R.CP.JP. No. 100117/ in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon Hopewell Township Board or Supervisors . appelleelsl. to file a complaint in this appeal Name of appelleels} (Common Pleas No.~- ~5D3 c,,~"llle,1'l\ ) within twenty (20) days alter service of rule or suffer ent f judgment of non pros. RULE: To Hopewell Township Bd or Supervisors. appelleelsl Name of appellee(s} Signature of ~ or his ~ orBfMl (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (201 days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time. a JUOGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailing. Date: f\b\J. \ lo\n . 19.s1lS (. Signature of Protho otary or Deputy { , ., "" i' . , AOPC312.B4 COi IIII r!t I 10 UfO FILED WITH PROTHONOl AHY 0/ . ) -r 0 'J J ,. " " J , (I , ( '!J;',' ~ .,J .' 11 M (~ , ,(. ~..., " X. i;' t) <" , ~. ',., U' " e T u r~~ " JUf"I/" JO -,,-,,/' ,'',\'' lP"I.n";!.lj) il""1 II,UI I ell ISl,ull;ItJdl' ;'1\11 t;Oi!'i :,. ,,~' 'U}illi1qp;Jlprll" 111111.11 'i,,:'fl'I," u/) - \, hfpU;,\ '11l'11I i'.I: 'I', (, Iii I;, "I ',' (In \Ii,' 1.1 Ii I :'. ~" 'i' (<;.-/\'O(/.Jltf".11;(irli' " '.;j() ,If'.',' i(,),,',:I- 'I; I~,UI'),) ..,~ ",/" II' .':/'1 '" 'i" ,""II'Id"S ;:J I i l'~ I d')': l!1).VU' SIHl of) IO',HI Jlvl NHOMS "Ii" I : J' l' ~ ,I" 1"", '!"'lI '.. '" ..'1. :"'.. 'il '''i P!IP , i"',;, i" ','I d' J'i ,j".,; " ~ I 1', }o '-'1':; i) ") ",1'1 \' ; f\ i';"i,j '<i; j'j ,'.dr.,.! I' ,,',11 " " 'Il"'\il :ll^,fOI~~V " ,.)0 A1NnO::> '1tlNV^'ASNNJd jO Hl ''t:J3MNO~H'IIO:J .LNIVldVIIO:l 3ll~ 01 3lnl;J ON'If l'lf3dd'lf ~O 3:l110N ~O 3::>1^l;J3S ~O ~OOl;Jd .,' ,'! },; f'" ; ,,'r,' 'i i\f i /./I!-i.1f/~i OJ 1/) JtJ 1 SOH' ,In,1J,I';,(J IOOilfS,111.11 "'" , . COMMONWEALTH 01' PENNSYLVANIA COUNTY OF: cmmBRLAND NOTICE OF JUDGMENTITRANSCRIPT CIVIL CASE PLAINTIFf ..."". .""'''001'l1'' IiiOPEWELL 'l'WP BOARD 01' SUPBRVISORS ., 257 NBWBt7RG RD NEWBURG, PA 17240 L U'J 0011 ~~ 09.3.01 OJ"'''''' "'Q" DAVID P. PERKINS "".", 81 WALNUT BOTTOM P.O. BOX 361 SHIPPKNSBURG, PA r",.,., (7171 532-7676 VS. .J OEF-"E~1DMH ~OWLAND HOLDINGS 12 CARROLL ST SUITE 180 ~STMINSTER, HD 21157 Docket No.: CV- 0000109 - 98 Date FIled: 7/06/98 ....\.[.~.()Oltf'... 17257-0361 ., i , MEADOWLAND HOLDINGS 12 CARROLL ST SUITE 180 WESTMINSTER, HD 21157 .J ~- [':, ~, . .J THIS IS TO NOTII'V YOU TIlAT; Judgment: [i] Judgment was entered for: (Name) [i] Judgment was entered against: (Name) DEFAill.T ,TTlDGMF.N'r PT,TF J.rl1PRW1O!T.r. 'l'WP ROa.Dn np ~nDR~VTQ MR:.nnwr,:'1Im UnT.DT!llc:l!:: in the amount of S ';1;"1 1 non: (Date of Judgment) 1 0/21 ~_ . o o o o Defendants are joinl/y and severally liable. (Date & Time) p, i) \ Damages will be assessed on: Amount of Judgment $ .600.00 Judgment Costs $ 53.10 Interest on Judgment $ .00 Attorney Fees $ .00 Tolal $ 653.10 Post Judgment Credits" $ Post Judgment Costs $ -< t I I. 'I ,. I- \. r This case dismissed wil/lOut prejudice. Amount of Judgment Subject to AltachmenVAct 5 of 1996 $ o Levy is stayed for _ days or 0 generally stayed. ------------ ------------ o Objection to levy has been filed and hearing will be held: Date: Place: Certified Judgment Total $ . Time: . ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 OA YS AFTER THE ENTRY OF JUDGMENT BY FILlflG ANOnCE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY (ffllS, OTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL, " r7 ( " \ "1 J. .... /~-';;1-9g Date ~ I' \...v.L-X>~.'.' '::"Di~trjc;'Ju,stice' . . I certify that this is a tru~orrect copy of th record of the proceedings c0t'lihing'.iheJudgit)e~t.\ . /t1c9/. 96 Date "-- J. G,; ~ (::-,"D.i~triCiJuiIiC~. . ~,. . ." ~/ . .' .\ ~ . ....... ., - ~ . I., j't""''''' My commission expires first Monday of January, _oo.j. ....."J:. . 'I."' . . I." ! l(':~ ! ,\.,,~..' ill!, 1:(."'" 'I. ii f '; il: I ,',' l \}; AOPC 315.96 - correct copy of that letter is attached hereto, made a part hereof and marked as Exhibit "A". 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. 8. 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. CERTIFI<'ATE OF SERVICE I. Toni Lee Cavanagh. Esquire. allomey ",r the Dclcndant. herehy certify that this 22'" day or Fehnmry. 1999. a true and correct copy or the allaehed Motion "Ir Decision on Ilriefs was served upon the f(llIowing hy First Class Mail: Sally.l. Winder. Esquire 70 I E. Kings Street Shippenshurg.I'A 17257 Date: February 22. 1999 oni Lee Cavanagh, Es 're Attorney for Defendant. ) HOPEWELL TOWNSHIP BOARD OF SUPERVISORS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. LANARK INVESTMENT FUND 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 RE: 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 DISCUSSION Tho solo issue raised in Defendants' preliminary objections is an attack on the 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. 2 NO. 98-6502 CIVIL 98-6503 CIVIL The filing of the instant appeal and request for a hearing de novo effectively waived any dofoct in tho district justice proceedings. Therefore, the Defendants' preliminary Objections are DENIED. I ORDER AND NOW, this 18TH day of MARCH, 1999, Defendants' Preliminary Objections are DENIED. Each Defendant is directed to file an answer within twenty (20) days. By the Court, Isl Edward E. Guido Edward E. Guido, J. Sally J. Winder, Esquire For the Plaintiff Toni Lee Cavanagh, Esquire For the Defendant :sld IEven if the Defendants had followed the appropriate procedure and filed a praecipe for writ of certiorari pursuant Pa, R.C.P.D.J. 1009, it is clear that any attack upon the jurisdiction of the district justice would have failed. The parties agree that prior to the original hearing scheduled before the District Justice, Defendants' counsel requested and obtained a continuance. The default judgments were entered when the Defendants refused to appear at the rescheduled hearing, claiming defective service. Pa, R.C.P.D.J. 314 (C) specifically provides that "[t]he appearance of a defendant in person or by representative . . . shall be deemed a waiver of any defect in service. . . ." See also Naids v. Bonnie Suaarman, Ind., 455 Pa, Super. 401, 688 A.2d 709 (1996). 3 il 1\ i\' I, Ii II Ii II HOPEWELL TOWNSJIIP BOARD 'I OF SLJPERVISORS, 'I I I !I I! I' II II , I I 11 11 I II II II II 2..'11#<-.{ al'4 of.Off"u..I... ",,'l"'0Xl.,&/-J ~ rkfnr.u (7,.1) 555....18 IN TilE COLJRT OF COMMON PLEAS OF CLJMBERLAND COLJNTY Plaintiff vs CIVIL ACTION - LAW MEADOWLAND HOLDINGS. Defendants NLJMBER: 98 - 6.5llJ. CIVIL TERM PLAINTIFF'S REPLY TO NEW MA TIER COMES NOW, the Plaintiff, Hopewell Township Board of Supervisors, by and through its counsel, Sally J. Winder, Esquire, and does reply to Defendant's New Matter as follows: 19. DENIED. After reasonable investigation, Plaintiff is without knowledge as to whether or not Defendant, Meadowland Holdings, 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. 21. DENIED in part and ADMITTED in part. ADMITTED to the extent that Jeffrey Danner, the Township Zoning Officer, did have some knowledge of some grading activity at the subject property. It is denied that the Township Zoning Officer ~ .j II , I i' I, ! ; , I. " " 'I II Ii 11 , 1 . "approved" the grading or that he determined the grading was done to alleviate erosion and storm water run-olTs Plaintiff lacks specific knowledge as to whether or not Kim Falvey, of Soil C'onscrvation. had any knowledge or approved certain grading occurring on the property to alleviate erosion and storm water run-off and therefore denies the averment, dcmanding strict proof thereof at the trial of this matter. Plaintiff 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, Meadowland Holdings, concerning any activities conducted on the property and the applicability of the Hopewell Township Zoning Ordinance to such activities. ; " II 'I I, I ! I , I , I il I, i I I 22. ADMITTED in part and DENIED 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 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 of law to which no response is I II I' t I necessary. I I I 2 ,. " I' ,I .~ '.1 . , "( (;: t , ~:.: ~ " I! " I' ,I Ii .. , , , I I i. " " 'I I, It II Ii 11 ;1 " 'I " I, I' i I ! I I I I. I I , i II II I , I II I, I I I I I 26. 23 DENIED This avcrmcnt statcs a conclusion ofla'\ to which no rcsponsc is ncccssary and thcrefore thc same is dcnied 24. DENIED This averment states a conclusion of law to which no response is neccssary and therefore the samc is denied 25. DENIED. The statements madc in paragraph 25 are conclusions oflaw to which no response is neccssary and therefore the same are denied To the extent that the averments of Paragraph 25 are not deemed conclusions of law, the Plaintiffavers that thc Airport Zoning Act. 74 Pa.C.SA Section 5912(a) provides for a regulation of public airports and does not affect the enforcement of a municipal or township zoning ordinance which regulates land use, including private landing strips or airports which are not existing non.conforming uses, vis-a.vis, the Township Zoning Ordinance. DENIED as stated. Plaintiff lacks the specific knowledge as to the particular use ofa private airport referred to in Paragraph 26 of the Defendant's New Matter and further lacks specific knowledge of what "other private uses ofland for ingress and egress by private airplane" means or to what persons or entities this phrase refers and therefore demands strict proof thereof at trial of this case and the same is specifically denied except as to the use by Defendants which is the subject of this enforcement action by Plaintiffs. 3 .~ I! Ii 'I Ii II I , I ; I ! I, ;' II 27 DENIED The averments of Paragraph 27 are conclusions oflaw to which no Ii ;, , response is necessary and thererore the same arc specifically denied. I I I " II 28 DENIED. The averments of Paragraph 28 are conclusions oflaw to which no " II response is necessary and therefore the same are specifically denied. To the extcnt I, " that the averments of Paragraph 28 are not deemed conclusions of law, Plaintiff I lacks specific knowledge from which to determine the truth or voracity of the I averments and therefore strict proof of the same is demanded at trial of this mattcr. I 29. DENIED as stated. On the contrary, Plaintiff believes and therefore avers that the I premises at 40 I Shippensburg Road, Hopewell Township, Cumberland County, I I. Shippensburg, Pennsylvania, consist of a residential farmhouse, outbuildings, a I barn, and other improvements, as well as open field and other space. I , i I 30. DENIED. The averments of Paragraph 30 are a conclusion of law to which no I pleading is necessary and therefore the same are specifically denied. To the extcnt that the averments of Paragraph 30 may be deemed not to be conclusions oflaw, II 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. Ii 31. DENIED. The first sentence of Defendant's New Matters in Paragraph 31 is a II conclusion oflaw to which no response is necessary and therefore the same is Ii I 4 i Ii 'I II to 1\ I. Ii Ii 1\ \1 l! II Ii \1 \1 1\ \1 , I I. I I , I \ Plaintiff and against the Defendant awarding all attorney fees, litigation expenses, and civil 35. DENIED Thc avcrments ofl'aragraph 35 arc a conclusion oflaw to which no responsc is nccessary and thereforc thc samc is spccifically denied 36. DENIED. The averments of l'aragraph 36 are conclusions of law to which no pleading is necessary and therefore the samc arc spccifically denied 37. DENIED. The averment of Paragraph 37 is a conclusion oflaw to which no response is necessary and therefore the same is specifically denied. 38. DENIED. The averment of Paragraph 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, \ \1 W~ ALLY Solicito or the Board of Supervisors of Hopewell Township, Cumberland County 701 East King Street Shippensburg P A 17257 (717) 532 - 9476 I, I I 6 Ii , I I I. , II I, II Ii Ii 1 Cumberland County, Pennsylvania, verify that the statements made in the foregoing Plaintiffs 1 , , , " II 'I I VF.RIFIC,\ TION I, Marlin D. Hoover. Chairman oflhe Board of Supervisors ofllopewell Township, Reply 10 New Maller are true and correcl to the besl of my personal knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904. relating to unsworn falsification 10 authorities. Date: _ ~/)'2-ltJ1 I) Jlo..J.... " 0 .1fJ::.(.~L'-<A.- MARLIN D. HOOVER i , I j. I I , i I I I II I II I' I I ,I I 7 ,-. ,... r". ; , h.' , 11,1';:- <J\ (I.. r~':' , ". (', ,~ ., t (; , '() '.. [:,1: <" ','1 , . (.: t:- ~ .. <. '.J .... .- 1.,1_ f"', ! -~ U 0' c,) SALLY J. WINDER AI/orne)' 01 Law 701 E. King Street Shippen,burg, PA ~72S7 '" -. ..... " .':.- ". -.':. . " .. ,. ." , .. ,-;- ',' '. .... '. .... summer months of 1997. predecessors in title, Melvin S. Beam and Anna M. Beam, his wife, constructed or pemlittcd to be constructed and installed upon the propeny known and numbered as 401 Shippensburg Road, Shippensburg, Cumberland County. Hopewell Township, Pennsylvania, an airplane landing strip and pn\'ate airport. To the contrary, grading activities occurred on the property under direction of the County Conservation district to alleviate erosion. 7. Deniea. It is denied that initial construction and installation of the private airport and la.1ding strip occurred at a lime when Melvin and Anna Beam, husband and wife, and predecessors in title were record owners ofthe property known as 401 Shippensburg Road, Shippensburg, Pennsylvania. Defendant's response to paragraph 6 is incorporated herein by reference. 8. Denied. It is specifically denied that at the time of the Deed conveyance August 15, 1997, and the recording ofthe deed on September 23, 1997, and continuing through the date of the default judgment, November 16, 1998, entered against Meadowland Holdings in the District Justice Court, magisterial District 09-3-01. the landing strip had been further improved and the property at 401 Shippensburg Road, Shippensburg, Hopewell Township, Pennsylvania. has been used as an airpla.1e landing strip and private airport. required, therefore, same is denied. I', t, 9. Denied. Paragraph nine states a conclusion of law to which no response is 10. Admitted. II. Denied. It is denied that Meadowland Holdings has constructed, or allowed to be constructed, upon its property improvements 10 the airplane landing strip which :',:f. .... f. '... ,..;.. '. .... '. ..... . , '. . :::;'':'''' " ", ,".':. . facilitate take.off and landing. 12. Denied. It is denied that the Defendant has used or allowed the use of the premises as an airplane landing strip and private airport on a frequent basis including the storage of aircran from September 1997, to present, 13. Denied. It is denied that neither Defendant nor its predecessor in title or any agent or representative applied for, or obtained a zoning permit as required prior to the I t. I I ! construction of the private ailport and landing strip and change of the use of that land from agricultural land to airport and landing strip use. Paragraph 13 is further denied in that it states a conclusion oflaw to which no response is required. 14. Admitted. 15. Admitted. 16. Denied. Paragraph 16 states a conclusion oflaw to which no response is required, therefore, same is denied. 17. Admitted. 18. Denied. Paragraph 18 states a conclusion of law to which no response is required, therefore, same is denied. WHEREFORE, Defendant prays this Honorable Court enter judgment in favor of Defendant and against Plaimiff and award Defendant attorney's fees, litigation expenses and court costs. NEW MATTER 19. Defendant is engaged in crop fanning which is a pennitted use pursuant to 4.02 B of Article 4 of the Hopewell Township Zoning Ordinance, 20. Defendant intends to engage in crop dusting which is an accessory use to the I , " h r~ ':':', , ....'11 " ""I '. '1'- . - .' : ~.. - . .. ,".:" . . ,....:.. I. .... ..'.... Hopewell Township as well as other private uses of land for ingress and egress by private airplane. 27. Hopewell Township has not creatcd an airport hazard arca zoning ordinance, thercfore, Hopewell TO\\11Ship has takcn thc position that it docs not have any airports within its territorial limits, 28. The ac:essory use of crop dusting is a customary and nccessary practice to the principle use of crop fanning at 401 Shippensburg Road. 29. The premiscs at 401 Shippensburg Road consists of a residence, outbuildings and open space. 30. The omission of a Hopewell Township zoning ordinance, as those tenns could be relevant to the facts of the instant case, regarding private airports and airplane landing strips demonstrates the Plaintiffs intention to permit private airports and airplane landing strips in all areas within the Township boundary. 31. An private airport or an airplane landing strip, used as such, is a discrete land use and zoning regulations and zoning regulations which do not provide for same are exclusionary. The presence of a strip ofland in a certain area capable of accommodating a private airplane landing does not constitute an airport or landing strip. 32. The presence of an airplane landing strip in a certain area does not constitute a private airport or airplane landing strip. 33. An area that is used in connection with crop farming and dusting does not constitute a separate prior land use. 34. A flat area made up of open space upon which an airplane lands is not a private ~ '" ". . , ... '" . : : : ~ .: ',' , . ... . ... .-,,:" ,..-: ,.... .. airport, ::o~ il it all airplane landing strip, rather it is a nat area made up of open space. 35. Thc usc of a private airplanc to and from a propeny in the Agricultural District is an accesso:y use, unregulated by the zoning ordinancc. 36. Thc use oi a private airplane for travel to and from the property is similar to the use ofa motor I'chicle over a driveway; driveway's not carrying a zoning classification. 37. Zoning ordinances are construed strictly in favor of the use and against restrictions. 38. The Hopewcll TOI\llship Zoning Ordinance does not regulatc access as a distinct use in an)' zO:1ing district other than in a zoning district not here relevant. WHEREFORE, Defendant respectfully requests that this Honorable Court enter judgmcnt in favor of the Defendant and against the Plaintiff awarding attorney's fees, litigation expenses and COUrt costs to Plaintiffs together with all additional rcliefthat this Court deernsjust and proper. Respectfully submitted, JACKSON, C~AGH & STIV ALE, p.e, ::z~ 'Lee Alan Stivale, Esquirc Attorney for Defendant ~,t r ' ,.., ,.....I! ::: ..::.. . . . ~ .' -. _: . . , . . ~:- ; :', :;;., ~ ',..:;- : JACKSON, CAVANAGH & STIVALE, p.e. BY: LEE A. STIVALE, ESQUIRE 10' 48511 BY: TONI LEE CAVANAGH, ESQUIRE IDIlI 77800 MILLS 01' VICTORIA SUITE 30~ 1488 BALTIMORE PIKE SPRINGFIELD, PA 19064 (810) 804-4970 AttorneY 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. 98-6503 CIVIL TERM MEADOWLAND HOLDINGS 2331 02 EAST AVENUE S 247 PAI.MDALE, CALIFORNIA 93550 Defendant VERIFICATION I, Lee Alan Stivale, Esquire, attorney for Defendant, hereby verify that the facts in the foregoing Answer and )Jew Matter are true and correct to the best afmy knowledge, infonnatlan, and belief. The statements made therein are made subject to 18 Pa. e.s. 4904, regarding Unsworn Falsification to Authorities and the penalties related thereto. '-7S- Y LPe'Alan Stivale, Esquire Attorney for Defendant .:.:. ,0. :"11 .' ....., ,a .a, . ., . 0 0" .. . .. ,..;- ....:,..... .... ..'.... CERTIFICATE OF SERVICE I, Lee Alan Stivale, Esqui::e, attorney for the Defendant, hereby certify that this 7110 day of April, 1999, a true and correct copy of the attached Answer and New Matter was served upon the following by First Class Mail: Sally J. Winder, Esquire 701 E. Kings Street Shippensburg, P A 17257 Date: April 7, 1999 ,- (, ~ ~---c --- Lee Alan Stivale, Esquire Attorney for Defendant -- "" >- i; , .. '-. , ,.. c-".J , ., r'. j l" , , -,. ) .",. , .' ~.- '- " ;_i c) , , r- .~ r:' , ;-; , , n: ; :~J L: c_ .. ~-1. "'-l. t, "" -.-J t.i "" u ~, .IACKSON, CA V ANA<at & STIV AU:. I'.C'. IIY: TONll.n: CA V ANMar, t:S(,lIlIlU: III" 77600 I\IlI.U, nt. VtCl'OIUA slJJn: 301 14K'IIIAI.TII\lORE 1'1".: SI.RtNC.....:l.n.I.A 1'101,4 (610) 604-4970 Allornev ror nerendonl COLJRT 010' COMMON I'LEAS 010' CLJI\IUERLANU COUNTY, I'ENNSYLV ANIA CIVIL ACTION 1I01).;WELL TWI). BOARD OF SlJI'EIWISORS 257 NEWBURG ROAD NI~WBURC;, PA 17240 "I:lintiff v. No. 98-(,503 CIVIL TERM MEADOWLAND HOLDINGS 2331 D2 EAST AVENUE S 247 PALM DALE, CALIFORNIA 93550 Dcfendnnt DEFJo:NDANT'S BRIJo:IIIN SU/'PORT OF PETITION TO TOLL PER DIEM FINE In nccordancc with the Ordcr orCourt datcd April 27, 1999. the defcndnnt. Mcadowland Holdings filcs this bricr in support of its petition to toll pcr diem finc. SlJMMARY Thc Municipalities Planning Codc (MPC) docs not allow ror a finc or grcatcr than Five Hundrcd Dollars ($500.00) upon a finding of liability for a zoning violation. (53 P.S. ~ I 0617.2(a)). Thc magistcrial court bclow, impropcrly and in violation or thc MPC, cntcrcd judgmcnt in favor ofthc Plaintirfin the amount of Six Hundrcd Dollars ($600.00). The MPC as it pertains to 53 P.S. ~ I 0617.2(b) rcgarding the ability of the Court to grant an Ordcr of Stay lolling thc per dicm fine pcnding final adjudication of an allcged J;j JUN 30 1999 violation dcnwnstratcs thc Icgislativc intcnt or 1IIlllecling the defendant against unrcasonahlc pcnaltics. hurdcn and expcnse. .I'MT:S Thc dcrcnda11l. Mcadowland Ifoldings did not violate and IS nol vllllallng the onhnances at issuc inthc abovc mallcr. Thc magistcrial court impropcrly cntcrcd a judgmcnt against thc dcfcndant in an amount cxcccding that which is pcnnillcd undcr thc MI'C. The dcfcndant has appealcd thc court's ruling to thc Court ofCommonl'lcas. l'ursuantto thc MI'C. thc dcrcndanl sccks to havc thc finc which was impropcrly imposed, which duc to non.payment on appcal, bccomcs a per dicm finc, toll cd pcnding final adjudication orthc mallcr. RLJLES OF LAW 53 P.S. ~I0617.2(a) statcs: "any pcrson...... upon hcing found liahlc [ror violation ora Zoning Ordinancc] in a civil cnrorccmcnt procccding commcnccd by a municipality, [shall] pay a judgmcnt or IIot more than Fivc Hundrcd ($500.00) Dollars plus all Court costs, including rcasonablc allorncy rccs incurrcd by lhc municipality as a rcsult thcrcor." 53 P.S. ~10617.2(b) statcs: "thc Court of Common Picas, upon Pctilion, may grant an Ordcr orStay, upon causc shown, tolling thc pcr dicm finc pcnding a final adjudication or thc violation." DISCUSSION Thc dcrcndant contcnds that it has not commillcd any or thc allcgcd violations, thcrcrorc, it should not be subjcct to fincs for allcgcd violations. Thc MPC docs not allow thc finc imposcd by the magistratc, thcrerore, the finc should bc amendcd to comply with thc applicablc statutc. Furthermorc, the amendcd finc should bc tollcd to protcct thc intcrcsls of thc dcfcndant pcnding final adjudication as provided ror in thc MPC as abovc statcd. " ofDefendant'~ Driefin thi~ mallcr on ('laintif1's counsel If this I'etition, filed only behalf of Lanark Investment. i~ to be considercd a~ to Meadowland !Ioldings. thelll'lainlitT requests the ('ourt hold the record open for filing ofthc transcript or the District Justice hearing held before Oislrict Justicc Correal May 24. 19'N. in the matter ofllopewcll Township v. Melvin and Anna Deam addressing the use of the premises and the same zoning violations as well as the transcript of hearing held before Judge Hess June 14. 1999, on the petition for injunctive relief in the matter of Department ofTransportation. Bureau 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 the Zoning Hearing Board which has exclusive jurisdiction in matters of appeal from enforcement notices The District Justice action for imposition of the penalty for the violation. The Common Pleas Court appeal therefore does not act as a forum to determine whether a violation exists but to assess the penalty for the violation which exists. The Court of Common Pleas will hear the case to determinc the extent of the penalty. The Court will make a determination at that point as to whether the Defendant acted in good faith. If the Defeodant 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 amouot entered by the District Justice is proper because the State Legislature automatically amended all township ordinance penalty provisions when it enacted P.L. 1142, No. 172, Section I, December 18, 1996. That legislation created 53 Pa C.S ^ Section 66601 (.I) which spccifically automatically amends lownship ordinanccs which would include the IInpcwcIl Township Zoing Ordinance II providcs for civil penalties inslead of lines and scls (he amount at $60(J O(J ARGUMENT The position ofthc PlaintiO'lhcrcforc is thallhc cxistcnce ofa zoning violation has alrcady becn cstablishcd bccausc an Enforccmcnt Noticc was scrvcd upon both Lanark Investmcnt and Meadowland lIoldings and sincc it is clear fromlhe lestimony given at othcr hcarings rcvolving around thc usc of this propcrty as a an airplane landing strip that no appeal from the Enforcement Noti~e to the Zoning Hearing Board was ever made by any party to any ofthesc procecdings, thc ruling ofthc Commonwealth Court in City ofF-ne v Freitus, 681 A2d 840 (1996) applies That ruling was that the District Justice action subsequcntly filed by thc Township is for the purpose of cnforccment and imposition of penalties for the established violation. It is not a forum for determination of the violation itself The assessmcnt of a per diem pcnalty would be within the jurisdiction of this Court. Such an assessment would be based upon the Court determining that a violation conlinucs to exist. In this case, a finding that an airplanc 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 whcther the Defendant has filed 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 assesscd, this petition is premature. The Commonwealth COllrt has addressed these issues not only in the City ofFine v Freitlls, case but also in Johnston v Upper Macllngie Township, 638 A.2d 408 (1996). The Commonwealth Court has made it clear that the District Justice may not conduct a hearing de.l1l>>'Q where thc municipality has shown proper issuance of the Enforcement Notice and the party notilied has f.1ilcd to tilc an appeal to the Zoing Hcaring Board Therefore. ncithcr Lanark Invcstment nor Mcadowland Holdings is cntitled to relief on this Petition for the reasons that a detcrmination of pcr diem penalties has not yet been made and the judgement as it was entered in the District Justice proceeding was entirely within the parameters of the law applicable 10 the instant circumstances and findings. The applicable ordinance and legislation is the Hopewell Township Zoning Ordinance as automatically amended by the provisions 01'53 Pa. C.SA Section 66601 (3) which converted this kind of violation to a civil enforcement action bearing a maximum penalty 01'$600.00. This provision does not effect the ability of the Court to impose per diem penalties because subsection (5) of the statute specifically provides for imposition of daily assessments. CONCLUSION. The Court 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 Court 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, JUJ~ Sally J. W er Attorney for Plaintiff , I , ~ !. l t I ~ JM'KSO:ll, (;'\\'ANA(;II & STI\'AU:.I',('. IIY: TONI U:.: CAVANAGH. .:SQtiIlU: 11I# 77600 MIJ.J.S (n' VICTOIUA Snn:301 14H9I1At.TIJ\lOR.: I'IK.: SI'IUNGFlEUI.I'A I'/OM (610) 604-4970 AUornev for I)efendunl COURT OF COMMON PLEAS OF CLJMHEIU.ANJ> COlJNTY,l'ENNSYI.VANIA CIVIL ACTION II0PEWELL TWP. BOARD OF SLJI'ERVISORS 257 NEWBURG ROAD NEWBURG, PA 17240 Plaintiff v. No. 98-6503 CIVIL TERM MEADOWLAND HOLDINGS 2331 02 EAST AVENUE S 247 PALMDALE, CALIFORNIA 93550 Defendant DEFENDANT'S BRIEF IN SUPPORT OF PETITION TO TOLL PER DIEM FINE In accordance with the Order orCourt datcd April 27, 1999, thc dcrendant, Meadowland Holdings filcs this brief in support of its pctition to toll pcr dicm finc. SUMMARY The Municipalities Planning Code (MPC) does not allow ror a fine or grcater than Fivc Hundred Dollars ($500.00) upon a finding ofliability ror a zoning violation. (53 P.S. S 1 0617.2(a)). The magisterial court below, improperly and in violation orthe MPC, entered judgment in favor of the Plaintiff in the amount or Six Hundrcd Dollars ($600.00). The MPC as it pertains to 53 P.S. S 1 0617.2(b) rcgarding the ability orthc Court to grant an Order of Stay tolling the per diem fine pcnding final adjudication or an alleged violillion dcmonstratcs thc legislative imcnt or protccting thc dclcndant against unrcasonalJlc Ilcnaltics. IJnrdcn and cspensc. ... M.J'S lhe defcndam. Mcadowland Iloldmgs dill nnt \'Ioline and IS not \'Iolalmg the ordinanccs at issue in the above matter. Thc magistcrial court improperly entered a judgmcnt against thc dcfcndant in an amount cxcceding that which is pernlitted undcr the MPC. Thc dcfcndant has . f I appcalcd the court.s ruling to thc Court or Common Pleas. Pursuant to thc MI'C.lhc dercndant seeks to have the finc which was impropcrly imposed. which due to non.paymcnt on appeal, , . becomes a per diem fine, tollcd pcnding final adjudication ofthc matter. RLJLES OF LAW 53 P.S. ~I0617.2(a) statcs: "any person...... upon being round liable [ror violation ora Zoning Ordinance] in a civil enforccmcnt procecding commenced by a municipality, [shall] pay ajudgment of /lot //lore than Five Hundrcd ($500.00) Dollars plus all Court costs, including reasonablc aUorncy fces incurred by the municipality as a result thereof." 53 P.S. ~I0617.2(b) states: "thc Court of Common Pleas, upon Petition, may grant an Order of Stay, upon cause shown, tolling the per diem fine pending a final adjudication or the violation." DlSCLJSSION The defendant contends that it has not committcd any of thc alleged violations, thererorc, it should not be subject to fines for alleged violations. The MPC does not allow the fine imposed by the magistrate, therefore, the fine should be amended to comply with the applicable statute. II Furthermore, thc amended fine should be tolled to protect the intcrests ofthe defendant pending linal adjudication as provided for in the MPC as above stated. I , , ,> i~ O)-,-~nJ'slo:'O Ilascd on Ihc SI.l\utory allowances ,m.! I'ruhihilions conecrning litigation oftlie inslOlnt naturc. il would hc Ilwpcr for the ('ourt to (i) .mle/I" Ihc dislrict courl ju.!gmclll previously cnlcrcd in Ihis mattcr in ordcr that ilmay comply with thc I-.lPC and (ii) toll the pcr dicm fine as pennittcd undcr 531'.5. *10617.2(h) as sct lorth inlhc prcceding pamgraphs. Rcspcctfully submitted. ,~) JUL 1 2 1999 JM'''SON, CA V ANAWt & SHV,\"':, I'.C'. IIY: TONI U:.: C'AVANAGII. .:SQIIIIlE IIlN 77600 MII.I.1i OF VWI'llRIA Stlln:301 148911AUII\toRE t'I".: SI'IUN(aU:I.U, t'A 19064 (610) 604-4970 Allorntv ror Utr.ndanl .___._ COURT OF COMMON PLEAS OF CUI\I1lEIU.ANI) COUNTY,I'ENNSYLV ANIA CIVIL ACTION 1I00'EWELL TWP BOARD OF SlJI'EIWISORS 257 NEWBLJRG ROAD N.;WBLJRG, PA 17240 l'laintiff v. No. 98-6503 CIVIL TERM MEADOWLAND HOLDINGS 2331 D2 EAST AVENUE S 247 PALM DALE, CALIFORNIA 93550 Defendant ORDER AND NOW, thl's /'J -CA d r I~/ l/ / vi ay 0 I!",/ L-L' / , 1999, upon considcration or thc Defcndant's Praccipe to Withdraw Petition to Toll Pcr Dicm Fine without prcjudice, it is hcrcby ORDERED and DECREED that Defcndant's Pctition to Toll Pcr Dicm Finc bc and hcrcby is withdrawn without prcjudicc. .... . BY tJjEc /::.dw/i/l..d 1:. C tA.,'dtJ .I. / ..:;,( j! Jl' !.. .' ::: =;5 '.'" .1'.....' - I ;" .. , ... CERTI....(',\TE OF S.:In'ln: I. Toni Lee Cavanagh. Esquirc, attomcy ror the ()crendant. herchy certify that this S'" <lay or July. 1999. a truc and corrcct copy orthc allaehcd I'raceillc to Withdraw was scrved upon thc , ! following by First Class Mail: Sally J. Windcr. Esquirc 701 E. King Strccl Shippensburg, P A 17257 . ~, . Date: July 8. 1999 . .1 , .~ , ;.;, , "'. ';.. '4 i .. t;; ,\ ........ ... .~-_. ,~ . . , ;1 " '\."1 1'.1 Iii. , .. 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PI"intin' IN TilE COIJRT OF COMMON PI.EAS OF CIJMBERLAND COIJNTY, PENNSYI.V ANIA MEADOWI.AND HOLDINGS, Dcfend"nts NO. 98-6503 CIVIl. TERM . ;" AND NOW. this ORDER OF COlJRT :- -ILd"y o/' October. 1999, upon consideration o/' I'lailllilrs Motion to Com pc I Dcfcndant's Answcrs to Intcrrogatories, " Rulc is hercby issued upon Dcfcndant to show cause why thc relic/' requestcd should not be granted. RULE RETURNABLE within 20 d"ys ofserviee. BY THE COURT, '\ l I J Sally J. Winder, Esq. 701 E, King Street Shippensburg, P A 17257 Attorney for Plaintiff " .J I I I' I I " ' I l. [.<, i ( /(, /.. J Weslcy Oler,Jr" :! I ...c.ojlL:..JJ ,/11 ,,,-J'co{, /(.)-j.,/'I RLK d Toni L. Cavan"ugh, Esq. JACKSON, CAVANAUGH & SHIV ALE, P.C. Mills of Victoria, Suite 30 I 1478 Baltimore Pike Springfield, P A 19064 Attorney for Defendants :rc Y, LuL 1."'..1 "/J(LL,-ILo....h''-j C:t:-C,.,-'i.... C'H S', /9'17 t~ HOPEWELL TOWNSIIIP IJOARI) OF SUPERVISORS, IN Tilt: COlIRT Of' COMMON PLEAS OF ClJl\IIIERLAND C(}lINn' Plaintiff vs CIVIL ACTION - LAW MEADOWLAND 1I0LDlNGS, Derendanu NUMBER: 98 - 6~J CIVIL TERM APPEAL FROM D.J. JLJDGMENT PLAINTIFF'S MOTION TO COMPF.L DEFENDANT'S ANSWERS TOINTF.RRQGAIIUUES AND NOW, COMES the Plaintiff, Hopewell Township Board of Supervisors, by and through its solicitor, Sally J 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, Meadowland Holdings, 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, Meadowland Holdings, after an Order dismissing preliminary objections, tiled an Answer and New Matter in this matter. 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 the copy of transmitting correspondence dated April 28, 1999, Interrogatories addressed to Defendant, Meadowland Holdings and Lanark Investment Fund were served on thc Dcrendants through counsellor the Defcndants, Lee A Stivale. Esquire. August 28, 1999. 5. More than thirty (30) days have passed from the service of the Interrogatories upon Defendants 6. As of the date of filing of this Motion, Defendants have failed to respond to Plaintiffs Interrogatories by tiling 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, if any, within thirty (30) days of the service of Interrogatories. 8. In failing to respond to Plaintiffs 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 Discovery and Order the Defendant, Meadowland Holdings, to respond to Plaintiffs Interrogatories within Fifteen (15) Days. Respectfully submitted, ~ Sally J. nder, Esquire Solicitor for the Board of Supervisors of Hopewell Township, Cumberland County 2 ir. ,.... ~ ., c: ." .. ~~,'~ ::~ ~(l - ,.. -"-;'} ~.. ,. ,C ~~; i!.~ ,:..~ i (...1;<, )- C.~) : . . .. , , U.J". I . tiJ1' ,- ,j i;'; L; 1 ~l.,. t-':; L. ('j"" ~j U ...... U SALLY J..WINDER A lIorney at Law 701 E. King Sueet Shippensburg, PA.172S7 OCT 04 1999/1 J,\C"SO;";. C''\V,\;'';,\(;/I & STI\''\I.E.I'.C. IIY: I.n;,\. STIV '\I.E. t:SQI rllU; J1)~ 46~ II MII.I.S C)t' VIC'TOIU,\ StllTE 301 14H911'\I.TI~IOIIE J'I"E SI'IU;";GFIEI.I>.J''\ I'J064 (610) 604-4970 ,\\lorn,',' ror l>orond'III' COURT OF COl\l 1\I ON PLEAS OF CLJi\IHERLANI) COLJNTY,PENNSYLVANIA CIVIL ACTION 1I0PEWELL TWP BOARD OF SLJPERVISORS 257 NEWBURG ROAD NEWBURG,PA 17240 Plaintiff v. No. 98-6503 CIVIL TERM MEADOWLAND HOLDINGS 2331 D2 EAST AVENUE S 247 PALM DALE, CALIFORNIA 93550 Dcfcndant PRAECIPE TO DISCONTINUE APPEAL TOTHE PROTHONOTARY: Kindly discontinue thc Dcrcndant/Appcllant's appcal in thc abovc captioncd matter. /' rERTIFI(',\TE OF SERVICE I. Toni Lec Cal'an"gh. Esquire, "tlorney ror thc Dcrcnd"nt. herchy ccrtify Ilwt this 18'" day ofOctobcr. I~l)l). a lrue ami currce! cOllyorthc "tI'lched I'mccille 10 Discontinuc Al'pe,,1 w"s servcd upon Ihc following hy Firsl CI"ss Mail: S"lIy.l. Windcr. Esquirc 70 I E. King Strcct Shippcl1sburg. PA 17257 Datc: Octobcr 18, 1999 . .\ , ~