HomeMy WebLinkAbout03-2759Andrew C. Sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
BOROUGH OF NEW CUMBERLAND,
Plaintiff
VS.
FREIGHTWAY SERVICES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
IN EQUITY
NOTICE
You have been sued in court. If yo~ wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney
and filing in writing with the court your defenses or objections
to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may
be entered against you by the court without further notice for any
money claimed in the complaint or for any other claim or relief
requested by the plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PENNSYLVANIA 17013 _ ~
2 9- 166 _ /7
Andrew C. Sheely, Soli~Tt~tor
Borough of New Cumberland
PA. I.D. No. 62469
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
717 697-7050
BOROUGH OF NEW CUMBERLAND,
Plaintiff
vs.
FREIGETWAY SERVICES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
03 -
IN EQUITY
COMPLAINT IN EQUITY
Plaintiff, the Borough of New Cumberland, by and through,
Andrew C. Sheely, Solicitor, hereby files this Complaint in Equity
and respectfully states as follows:
1. Plaintiffs is the Borough of New Cumberland, a municipal
corporation with a principal place of business at 1120 Twelfth
Street, P.O. Box 220, New Cumberland, Pennsylvania.
2. Defendant is a duly registered Pennsylvania Corporation
with a registered address 791 Colver Boulevard, P.O. Box 303,
Dauphin, Dauphin County, Pennsylvania.
3. Defendant owns all that certain real estate located at
1440 Simpson Ferry Road, New Cumberland, Pennsylvania, Tax Parcel
Number 26-24-0809-197A as evidenced by Deed dated November 26,
2002 and recorded in Deed Book 254, Page 4434.
4. The President and/or Chief Executive Officer of the
Defendant is Timothy E. Mowery, of 791 Colver Blvd., Dauphin,
Dauphin County, Pennsylvania.
5. On or about August 3, 2000, the Borough of New Cumberland
sent an enforcement notice to Timothy E. Mowery informing the
Timothy E. Mowery to cease and desist the use of the property at
1440 Simpson Ferry Road, New Cumberland, Pennsylvania as a boarding
house or multi-family dwelling use in violation of Section 202.1 of
the Borough of New Cumberland Zoning Ordinance.
6. On or about September 26, 2000, Timothy E. Mowery filed an
appeal of the enforcement notice to the zoning hearing board of the
Borough of New Cumberland, and simultaneously requested variance or
special exception.
7. On or about November 30, 2000, the Zoning Hearing Board of
the Borough of New Cumberland issued Findings of Fact, Conclusions of
Law and Decision denying the request for a special exception and
variance and held that the premises at 1440 Simpson Ferry Road was
being used as a boarding house and multi-family dwelling in violation
of the New Cumberland Borough Zoning Ordinance. A copy of the deci-
sion is attached hereto as Exhibit "A".
8. Timothy E. Mowery filed no appeal to the November 30, 2000
written decision of the zoning hearing board.
9. In April of 2002, the Borough of New Cumberland commenced a
civil enforcement action in accordance with the Pennsylvania Munici-
palities Planning Code against Timothy E. Mowery for again using the
property located at 1440 Simpson Ferry Road, Borough of New
Cumberland, as a used as a boarding house and multi-family dwelling
in violation of the New Cumberland Borough Zoning Ordinance and the
prior decision of the zoning hearing board.
10. At the time of the April 2002 civil enforcement action, the
2
Borough of New Cumberland believed that as many as six (6) or seven
(7) persons were residing in the residential structure.
11. Immediately prior to the commencement of the hearing regard-
ing Plaintiff's civil enforcement proceeding, Timothy E. Mowery
allowed Borough officials to inspect the property.
12. During the inspection, Timothy E. Mowery acknowledged that
more than three people had been residing in the premises and that
several people had recently moved so as to bring the premises in
compliance with the applicable provisions of the zoning ordinance.
13. Following the inspection in July of 2002, officials from
the Borough of New Cumberland determined that Timothy E. Mowery was,
at that time, compliant with the applicable sections of the New
Cumberland zoning ordinance.
14. As a result of compliance by Timothy E. Mowery in July of
2002, the civil enforcement action was withdrawn without prejudice.
15. On or about November 26, 2002, Timothy E. Mowery transferred
to the real estate which is the subject of this complaint in equity
to Defendant Freightway Services, Inc. as evidenced by the Deed
recorded in Deed Book 254, Page 4434.
16. Subsequent investigations and interviews by the Borough of
New Cumberland currently indicate that the premises located at 1440
Simpson Ferry Road, New Cumberland (Borough of New Cumberland) are
again being used in violation of the applicable sections of the New
Cumberland Borough zoning ordinance.
17. The premises located at 1440 Simpson Ferry Road is not
being used as a single family residence.
18. The premises located at 1440 Simpson Ferry Road is being
used as a multi-room, boarding house which is not permitted by the
applicable provisions of the zoning ordinance.
19. The Borough of New Cumberland continues to receive signifi-
cant and substantial complaints from residents adjacent to Defen-
dant's real estate concerning the number of people residing at resi-
dence located at 1440 Simpson Ferry Road, New Cumberland, Pennsylva-
nia.
20. Defendant has no right to use the premises in a manner
contrary to the provisions of the Borough of New Cumberland Zoning
Ordinance.
21. In light of the Defendant's failure to comply with the
Borough's Zoning Ordinance and the decision of the Zoning Hearing
Board which resolved all zoning questions, the Borough of New
Cumberland is faced with seeking to initiate multiple and continue
violations against the Defendant for the continued zoning violations.
22. No permit was issued to the Defendant or Defendant's prede-
cessors in title or ownership for use of the premises as either a
boarding house or multi-family dwelling.
23. Timothy E. Mowery, predecessor in title to Defendant,
initially applied to use the property as a residential dwelling.
24. Defendant and its President/cEO Timothy E. Mowery have
demonstrated a complete disregard for the provisions of the New
Cumberland Borough Zoning Ordinance.
25. Defendant and its President/CEO Timothy E. Mowery have
demonstrated flagrant contempt for the provisions of the New
Cumberland Borough Zoning Ordinance.
26. The premises located at 1440 Simpson Ferry Road continues
to be occupied by four (4) or more people who are unrelated and do
not constitute a family.
27. Repeated enforcement actions will result in multiple ac-
tions filed before the District Justice, considerable counsel fees
and costs and in ordinate delays in enforcing the provisions of the
Zoning Ordinance.
WHEREFORE, the Borough of New Cumberland respectfully requests
that this Honorable Court enjoin Defendant from violating the provi-
sions of the New Cumberland Borough Zoning Ordinance, award the
Borough of New Cumberland costs of these proceedings and any other
relief which is equitable and just.
DATE: June ~ , 2003
~w~fcf .~S~t or
Borough of New Cumberland
Pa. I.D. No. 62469
127 South Market Street
P.O. Box 95
Mechanicsburg, PA 17055
(717) 697-7050
Attorney for Plaintiff
5
VERIFICATION
I verify that the statements made in this Complaint are true
and correct. I understand that unsworn statements herein are made
subject to the penalties of 18 Pa. C.S.A. Section 4904, relating
to unsworn falsification to authorities.
DATE: June ~ , 2003
Jeff~] Miller, Zoning Officer,
Borough of New Cumberland
Exhibit "A"
BOrOUgh of New Cumberland
1120 MARKET STREET
P. O. BOX 220
NEW CUMBERLAND, PA. 17070
PHONE: 774-0404
November 30 , 2000
Mr. Timothy Mower),
P.O. Box 198
Liverpool, PA 17045
Dear Mr. Mowery:
I am enclosing a Decision of the New Cumberland Zoning Hearing Board denying your appeal
from the cease and desist order of the Zoning and Code Enforcement Officer and denying your request for
a variance and/or special exception for the property at 1440 Simpson Ferry Road, New Cumberland. This
decision was reached in a public meeting of the Board held on November 2, 2000.
:140570
Enclosure
Sincerely,
7W~UMBERLAND ZONING HEARING BOARD
Chairman
007139-00000/11-8-00/RWS/DCP/140521
APPLICATION APPEAL OF TIMOTHY
MOWERy
BEFORE THE NEW CUMBERLAND ZONING
HEARING BOARD
CASE NO. 00-4
DECISION OF TR~, ZONING i:rE~_~RING BOARD
The Applicant has appealed from a cease and desist order issued by the Zoning and Code Enforcement Officer
of the Borough of New Cumberland directing the Applicant cease using the property at 1440 Simpson Ferry Road,
New Cumberland as a boarding house or multifamily dwelling in violation of Section 202.1 of the New Cumberland
Borough Zoning Ordinance Cnereinafter referred to as "Ordinance") and the Applicant also applied for a variance and
special exception. A heating on the matter was held on November 2, 2000.
FINDINGS OF FACTS
1. The Appellant and Applicant, Timothy Mowery, is the owner of the subject property.
2. The subject property is located at 1440 Simpson Ferry Road, New Cumberland Borough, Cumberland
County, Pennsylvania.
3. The subject property is located in the R- 1 Zoning District.
4. The Applicant received a permit to erect a single family residence on the site on December 6, 1994.
5. On August 3, 2000, Zoning and Cede Enforcement Officer of the Borough of New Cumberland issued
an enforcement notice and a cease and desist order ordering the Applicant the cease using the property as a boarding
house or multi family dwelling in violation of Section 202. I of the Ordinance.
6. On September 26, 2000, the Applicant filed an appeal from the decision of the Zoning Officer and a
request or special exception. The request for a variance or special exception did not specify what use the Applicant
wished to place on the property.
0071~39-00000/11.8.001RWSIDCPI123038
7. Section 202.1 of the Ordinance provides that the only permitted residential use in the R-1 Zoning
District is single family detached dwelling.
8. Section 103.6 of the Ordinance defines single family detached dwelling as "a building used by one
family having only one dwelling unit and having two side yards". Section 103.6 of the Ordinance defines family as
"any number of persons living and cooldng together in a single housekeeping unit, not including more than three
unrelated persons and not including occupants of a club, fraternity, lodging house or boarding house.
9. The subject property has seven (7) bedrooms.
10. The property is occupied by seven (7) unrelated persons, each of whom occupies one bedroom. Each
of the seven (7) occupants of the subject property pay the Applicant a separate rent check. Each of the occupants of
the subject property paid the Applicant a security deposit.
11. Each of the occupants for the subject property are responsible for getting their own telephone line if
the occupant desires to use a telephone.
12. No evidence was presented by the Applicant in support of the Applicant's request for a variance or a
special exception.
13.
14.
The Applicant will be able to make reasonable use of its property ifa variance is denied.
Section 202 of the Ordinance does not provide for any uses in the R-I District by special exception.
CONCLUSION OF LAW
I. The subject property is being used as a multifamily dwelling which is a use that is not permitted under
Section 202.1 of the Ordinance.
Applicant.
The cease and desist order issued by the Zoning and Code Enforcement Officer is valid and proper.
The requirements of Section 202.1 of the Ordinance do not inflict an unnecessary hardship on the
007139-00000/11.8.001RWSIDCPI123038
4. The Ordinance does not provide for any uses in the R- 1 District by special exception.
DECISION
It is the decision of the Zoning Hearing Board that the Applicant's appeal from the enfomcmcnt notice and
cease and desist order of the Zoning and Code Enfomement Officer is hereby denied. It is very clear from the
evidence that was presented that the structure in question is being operated and used a multifamily dwelling in
violation of Section 202.1 of the Ordinance. The premises is occupied by seven (7) people who are unrelated and all
pay separate rent checks for the privilege of residing on the premises. It is very clear that the occupants do not meet
the definition of family under the Ordinance.
It is the further decision of the Board that the Applicant's request for a variance and special exception be
denied. The Applicant has not demonstrated the provisions of the Ordinance inflicted unnecessary hardship upon him.
The structure can certainly be used as a single family residence which was the use that the Applicant represented that
it would have when he made an application for a building and zoning permit. Since no unnecessary hardship has been
established as required by 53 P.S. 10910.2 and Section 704 of the ordinance the request for a variance must be
denied.
The request for a special exception must be dismissed as well since Section 202 of the Ordinance does not
)rovide for any uses by special exception in the R-1 Zoning District.
It is quite apparent that the Applicant has been operating the premises in flagrant violation of the Ordinance
for many years.
Very rarely has the Board seen a witness as evasive and one with as little credibility as the Applicant. The
Zoning and Code Enforcement Officer acted properly and correctly in issuing the enforcement notice and cease and
desist order.
Dated: November 30
___,2000
NEW CUMBERLAND ZONING HEARING BOARD
.7" ....
.SHERIFF'S RETURN
CASE NO: 2003-02759 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAIqD
NEW CUMBERLAND BOROUGH OF
VS
FREIGHTWAY SERVICES INC
- OUT OF COUNTY
Thomas Kline
duly sworn according to law, says, that he made a diligent
and inquiry for the within named DEFENDANT , to wit:
Sheriff or Deputy Sheriff who being
search and
FREIGHTWAY SERVICES INC
but was unable to locate Them
deputized the sheriff of DAUPHIN
serve the within COMPLAINT ~
in his bailiwick.
County,
EQUITY
He therefore
Pennsylvania, to
On July
3rd , 2003 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 10.00
Dep Dauphin Co 30.50
.00
67.50
07/03/2003
Sheriff of Cu~berland County
BOBOUGH OF NEW CUMBERLAND
Sworn and subscribed to before me
this ~' day of ~
A.D.
ProthonOtary '
Mary Jane Snyder
Real Estate Deputy
William T. Tully
Solicitor
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 255-2660 fax: (717) 255-2889
Jack Lotwick
Sheriff
J. Daniel Basile
Chief Deputy
Michael W. Rinehart
Assistant Chief Deputy
Conmaonwealth of Pennsylvania
County of Dauphin
Sheriff's Return
No. 1431-T -
OTHER COUNTY NO.
BOROUGH OF NEW CUMBERLAND
FREIGHTWAY SERVICES INC
-2003
03 2759
I, Jack Lotwick, Sheriff of the County of Dauphin, State of
Pennsylvania, do hereby certify and return, that I made diligent
search and inquiry for FREIGHTWA¥ SERVICES INC
the DEFENDANT named in the within NOTICE & COMPLAINT IN EQUITY
and that I am unable to find him/her in the County of Dauphin, and
therefore return same MOT FOUIFD, June 23, 2003
NEED BETTER ADDRESS. IS DER RICHARD LEWIS HAS NO KNOWLEDGE OF A FREIGTWAY
SERVICE INC.
Sworn and subscribed to
before me this 23RD ~ay of JUNE, 2003
PROTHONOTARY
So Answers,
Sheriff of Dauphin County,
By
Deputy Sheriff
Sheriff's Costs: $30.50 PD 06/17/2003
RCPT NO 179836
In The Court of Common PLeas of Cumberland County, Pennsylvania
Borough of New C%~nberland
Frelghtway ~rvlces Inc.
SERVE: s~e
N0. 03-2759 civil
Now, June 13, 2003
hereby, deputize the Sheriff of Dauphin
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
, I, SHERIFF OF CUMBERLAND COUNTY, PA, do
County to execute this Writ, this
Now~
within
upon
at
by handing to
a
and made known to
Affidavit of Service
,20 ,at
o'clock
copy of the original
So answers,
M. served the
the contents thereof.
Sworn and subscribed before
me this __ day of
,2O
Sheriff of County, PA
COSTS
SERVICE
MILEAGE
AFFIDAVIT
Andrew C. Sheely, Esquire
127 S. Market Street
P.O. BoX 95
Mechanicsburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
BOROUGH OF NEW CUMBERLAND,
Plaintiff
VS.
FREIGHTWAY SERVICES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
03 - 2759
IN EQUITY
PRAECIPE TO REINSTATE COMPLAINT
TO:
CURTIS LONG, PROTHONOTARY
CUMBERLAND COUNTY COURTHOUSE
CARLISLE, PA 17013
Kindly reinstate Plaintiff's Complaint docketed in the
above-referenced matter.
DATE: July 11, 2003
Andrew C. Shee~ll¢ ' ,
/~ '~ cltor
Borough of New Cumberland
Attorney for Plaintiff
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
717-697-7050
717-697-7065 (Fax)
SHERIFF'S RETURN - REGULAR
CASE NO: 2003-027519 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
NEW CUMBERLAND BOROUGH OF
VS
FREIGHTWAY SERVICES INC
CPL. MICHAEL BARRICK ,
Cumberland County, Pennsylvania,
says, the within COMPLAINT - EQUITY
FREIGHTWAY SERVICES INC
DEFENDAiqT , at 1655:00 HOURS, on the
at 1440 SIMPSON FERRY ROAD
NEW CUMBERLAND, PA 17070
ROGER ALLEMAN, RESIDENT
a true and attested copy of COMPLAINT -
Sheriff or Deputy Sheriff of
who being duly sworn according to law,
was served upon
the
31st day of July , 2003
by handing to
ADULT IN CHARGE AT ADDRESS
EQUITY together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service 11.73
Affidavit .00
Surcharge 10.00
.00
27.73
Sworn and Subscribed to before
me this /~ day of
Prothonotary
So Answers:
R. Thomas Kline
08/05/2003
BOROUGH OF NEW CUMBERLAND
LAGUNA REYE$ MALONEY, LLP
I I I 9 NORTH FRONT STREET, HARRISBURG, PA I 7 102
TEL.: (717) 233-5292/ FAX: (717) 233-5394
Aq'FORNEY$ FOR DeFeNDANT
BOROUGH OF NEW CUMBERLAND,
Plaintiff
FREIGHTWAY SERVICES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBER]LAND COUNTY, PENNSYLVANIA
NO. 03-2'759 EQUITY TERM
DEFENDANT'S RESPONSE TO PLAINTIFF'S COMPLAINT
NEW MATTER AND AFFIRMATIVE DEFENSES
AND NOW, comes the Defendant, Freightway Services, Inc., by and through its
counsel, Laguna Reyes Maloney, LLP, and hereby file.,; this response to the Plaintiff's
Complaint in Equity and respectfully states as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted that Timothy E. Mowery received information that the Borough of New
Cumberland felt the property may be being used as a "boarding house or multi-family
dwelling". It is specifically denied that the property was ever used as such, and it is
denied that there was ever a violation of Section 202.1 of the Borough of New
Page 1 of 9
10. Denied. At the time of the civil enforcement action, New Cumberland alleged that
six (6) or seven (7) people had been residing at the residence, or so they were told by
a neighbor; however, at the time of the enforcement action, New Cumberland actually
inspected the residence and determined that the allegation that six (6) or seven (7)
persons were residing in the residence was a false allegation. In fact, New
Cumberland determined that there was no violation whatsoever and they withdrew the
civil action.
11. Admitted.
12. Denied. Strict proof thereof is demanded at trial.
13. Admitted.
14. Admitted.
15. Admitted.
16. Denied. Strict proof thereof is demanded at trial. By way of further response,
Defendant is not aware of any subsequent investigations and/or interviews and has
had no notice or participation of same. Likewise, the averment that "applicable
sections" of the Zoning Ordinance are being violated is too vague and is a conclusion
of law to which no response is necessary.
17. Denied. Strict proof thereof is demanded at trial. By way of further response, this is
a conclusion of law to which no responsive pleading is necessary.
Page 3 of 9
18.
19.
20.
21.
Denied. Strict proof thereof is demanded at trial. By way of further response, this is
a conclusion of law to which no responsive pleading is necessary.
Denied. Strict proof thereof is demanded at trial. By way of further response, the
"number of people residing at the residence" poses no problem or violation of any law
or ordinance, etc.
Denied. Defendant has every right to use the premises as they are currently being
used. By way of further response, this is a conclusion of law to which no response is
necessary.
Denied. Plaintiff is attempting to bootstrap, so to speak, the first zoning violation
allegedly committed by Timothy E. Mowery, the previous owner, onto the second
alleged violation committed by the subsequent and present owner, Freightway
Services, Inc. It is uncontested that the first viLolation allegedly committed by
Timothy E. Mowery was withdrawn by New Cumberland because, in fact, Timothy
E. Mowery was not in violation. As such, that matter began with Timothy E. Mowery
and ended with Timothy E. Mowery when New Curnberland withdrew the complaint.
Now, the allegation is that the subsequent owner of the property Freightway Services,
Inc., is allegedly in violation of some unidentified "applicable section" of the zoning
ordinance. Of course, the one alleged violation (the first one which was dismissed),
has nothing to do with the other (which has yet to be explored in any fashion). If New
Cumberland believes that the present owner is in violation of a zoning ordinance, the
Page 4 of 9
22.
23.
24.
appropriate remedy is to proceed against the present owner (Freightway Services,
Inc.), according to law. At this point, New Cumberland has not provided Freightway
Services, Inc., with the requisite notice of violation, etc., necessary to enforce a
ordinance violation. Even in their Complaint, New Cumberland only refers vaguely
to "applicable sections" of the Zoning Ordinance. By way of further response, it is
specifically denied that New Cumberland is faced with "seeking to initiate multiple
and continued violations against the Defendant for the continued zoning violations".
On the contrary, Timothy E. Mowery, the previous owner of the premises was faced
with exactly one violation, and that one violation was withdrawn by New Cumberland
after it determined that, in fact, Timothy E. Mowery was not in violation. At this
point, New Cumberland is faced with pursuing exactly one alleged violation against
exactly one Defendant, Freightway Services, Inc. This is certainly not "multiple and
continued" violations.
Denied. Strict proofthereofis demanded at trial.
Denied. Strict proof thereof is demanded at trial.
Denied. On the contrary, the former owner of the residence, Timothy E. Mowery,
has, in fact, demonstrated by his prior conduct that he has abided by all of the rules
and regulations which govern these matters. Again, as New Cumberland admitted in
their Complaint, Timothy E. Mowery, was cited exactly one time and at the District
Justice, that citation was withdrawn by New Cumberland when they determined that
Page 5 of 9
Timothy E. Mowery was, in fact, not in violation of any ordinance. The averment that
Mowery completely disregarded New Cumberland's Zoning Ordinance is spurious,
to say the least.
25. Denied. On the contrary, the former owner of the residence, Timothy E. Mowery,
has, in fact, demonstrated by his prior conduct that he has abided by all of the rules
and regulations which govern these matters. Again, as New Cumberland admitted in
their Complaint, Timothy E. Mowery, was cited exactly one time and at the District
Justice, that citation was withdrawn by New Cumberiand when they determined that
Timothy E. Mowery was, in fact, not in violation of any ordinance. The averment that
Mowery completely disregarded New Cumberland's Zoning Ordinance is spurious,
to say the least.
26. Denied. Strict proof thereof is demanded at trial. Ely way of further response, this is
a conclusion of law to which no response is necessary.
27. Denied. Only one citation was ever issued to the previous owner of the residence, and
that citation was withdrawn byNew Cumberland. The current owner of the residence,
Freightway Services, Inc., was never cited. By bypassing the notice and enforcement
process, New Cumberland has effectively prevented Freightway Services, Inc., from
addressing the allegation with the Borough, at the Borough level, which is
undoubtedly the cheapest and easiest wayto go, so to speak. This is not a case for an
injunction.
Page 6 of 9
WHEREFORE, Defendant respectfully requests that this Honorable Court deny
Plaintiff's request for extraordinary equitable relief and, instead, direct New Cumberland to
simply pursue enforcement of any alleged Ordinance violation pursuant to law.
NEW MATTER AND AFFIRMATIVE DEFENSES
28. The paragraphs above are incorporated herein by reference as if set forth in full.
29. New Cumberland is essentially seeking to have this. court assume jurisdiction of this
claim in equity rather than pursuing a "normal" remedy at law. However, the
underlying principle of an equity clam is that there is no adequate remedy available
at law. Of course, the remedy at law in a zoning case such as this one is well known
and well used to great affect and with great efficiency. In fact, New Cumberland
previously proceeded as such with regard to this exact property and the matter was
remedied according to law, relatively easily. As such, New Cumberland has failed
to state a claim for which relief may be granted.
30. Our courts have steadfastly held that the court has no jurisdiction to hear complaints
challenging zoning ordinances when there is an adequate remedy available at law. As
such, New Cumberland has failed to state a claim for which relief may be granted.
31. New Cumberland has essentially sought to have this court impose a preliminary
injunction against Freightway Services, Inc. Nevertheless, even if this court had
Page 7 of 9
jurisdiction to hear the case, New Cumberland has fhiled to set forth any fact which,
even if uncontested, would be sufficient to permit the court to grant such
extraordinary equitable relief. As such, New Cumberland has failed to state a claim
for which relief may be granted.
WHEREFORE, Defendant respectfully requests that this Honorable Court deny
Plaintiff' s request for extraordinary equitable relief and, instead, direct New Cumberland to
simply pursue enforcement of any alleged Ordinance violation pursu/~t to law.
~ectf
'~ Roger R. Lagun~ Jr., Esquire
Supreme Court 1.1~ No.: 75900
Attorney for Defendant
LAGUNA REYES MALONEY, LLP
1119 North Front Street
Harrisburg, PA 17102
(717) 233-5292
Page 8 of 9
BOROUGH OF NEW CUMBERLAND,
Plaintiff
FREIGHTWAY SERVICES, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-2'759 EQUITY TERM
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I have caused a copy of Defendant's Response to
Plaintiff' s Complaint in Equity filed in the above-captioned matter to be served upon attorney
for Plaintiff, by regular gu'st class mail, addressed as follows:
Andrew C. Sheely, Soliciitor
Borough of New Cumberland
127 South M/ax& t Street
P.O. Box
Mech~/ffsburg, >A 17055
Roger R. Lagu
Supreme Court
Attorney for De
Jr., Esquire
2). No.: 75900
:ndant
Page 9 of 9
Andrew C. Sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
BOROUGH OF NEW CUMBERLAND,
Plaintiff
VS.
FREIGHTWAY SERVICES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
03 - 2759
IN EQUITY
PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT
Plaintiff, the Borough of New Cumberland, by and through,
Andrew C. Sheely, Solicitor, hereby files this Reply to Defendant's
New Matter and purported affirmative defenses, and respectfully
states as follows:
28. The allegations and statements of fact contained in
paragraphs 1 - 27 of Plaintiff's complaint are incorporated herein
as if set forth at length.
29. The allegations contained in paragraph 29 of Defendant's
New Matter and Affirmative Defenses are conclusions of law to
which no reply is necessary. To the extent a response is re-
quired, the allegations are denied as substantial precedent exists
establishing a cause of action and warranting the relief sought
against Defendant.
30. The allegations contained in paragraph 30 of Defendant's
New Matter and Affirmative Defenses are conclusions of law to
which no reply is necessary. To the extent response is necessary,
a valid cause of action has been stated and substantial precedent
exists warranting the requested relief against Defendant.
31. The allegations contained in paragraph 31 of Defen-
dant's New Matter are conclusions of law tc. which no reply is
necessary. To the extent response is necessary, a valid cause of
action has been stated and substantial precedent exists warranting
the requested relief.
WHEREFORE, Plaintiff respectfully requ,~sts dismissal of the
new matter and affirmative defenses raised therein, and further,
requests that this Honorable Court enjoin Defendant from violating
the provisions of the New Cumberland Borough Zoning Ordinance,
award the Borough of New Cumberland costs of these proceedings and
any other relief which is equitable and just.
DATE: October ~
, 2003
Respectfully submitted,
Andrew C. Sheely, Solicitor
Borough of New Cumberland
Pa. I.D. No. 62469
127 South Market Street
P.O. Box 95
Mechanics:burg, PA 17055
(717) 697-7050
Attorney for Plaintiff
VERIFICATION
I verify that the statements made in this Complaint are true
and correct. I understand that unsworn statements herein are made
subject to the penalties of 18 Pa. C.S.A. Section 4904, relating
to unsworn falsification to authorities.
DATE: October ~ , 2003
~eIFrey'Mi~ler, Zoning Officer,
Borough of New Cumberland
CERtIFICAtE OF SERVIC~
I, Andrew C. Sheely, Esquire, hereby certify that I am this
day serving the foregoing Reply and New Matter upon the following
named individual this day by depositing same in the United States
Mail, First Class, postage prepaid, at Carlisle, Pennsylvania,
addressed as follows:
Roger R. Laguna, Esquire
Laguna, Reyes Maloney LLP
1119 North Front Street
Harrisburg, PA 17102
Date: October ~ , 2003
Andrew C. Sheely, Esquire
PRAECIPE FOR LISTII~G CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLASD COUNTY
Please list the following case:
(Check one) ( ) for JURY trial at the next telTfl of civil court.
( X ) for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
Borough of New Cumberland
( Plaintiff )
VS.
Freightway Services, Inc.
( Defendant )
VS.
No. 03
Indicate the attorney who will try case
Andrew C. Sheely, Solicitor, Borough
( check one )
( ) Civil Action - Law
( ) Appeal from Arbitration
(X) Equity
(other)
The trial list will be called on I~-I0qIOB
and
Trials
Pretrials will be held on %~%~ ~
(Briefs are due 5 days before pretrlals.)
(The party listin9 this case for trial shall
provide fort?with a copy of the praecipe to
all counsel, pursuant to local Rule 214.1. )
Civil 2759 19
for the p~ty who files this praecipe:
of New Cumberland
Indicate trial counsel for other parties if known:
Roger R. Laguna, Esquire, Laguna, Reyes Maloney LLP
1119 North Front Street, Harrisburg,
This case is ready for trial.
Date: November 5, 2Q03
PA 17012
Print Name: Andrew C. Sheely
Attorney for::Plaintiff
BOROUGH OF NEW CUMBERLAND, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
FREIGHTVVAY SERVICES INC.,
DEFENDANT
· 03-2759 EQUITY TERM
ORDER OF COURT
AND NOW, this ~___~day of December, 2003, a trial on the within
case shall be conducted in Courtroom Number 2, Cumberland County Courthouse,
Carlisle, Pennsylvania, at 8:45 a.m., Wednesday, December 31, 2003.
v~_ndrew C. Sheely, Esq,iire
Solicitor for Borough of New Cumberland
~/Roger R. Laguna, Esquire ~
For Defendant
Court Administrator
:sal
Ed~r B. B~
BOROUGH OF NEW CUMBERLAND, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
FREIGHTWAY SERVICES, INC.,
DEFENDANT
: 03-2759 EQUITY TERM
ORDER OF COURT
AND NOW, this ~ day of December, 2003, defendant,
Freightway Services, Inc., being in violation of Section 202.1 of the Borough of New
Cumberland Zoning Ordinance, IT IS ORDERED:
(1) Freightway Services, Inc. shall, within seven (7) days of this date, provide
legal notices to all tenants/boarders of 1440 Simpson Ferry Road to vacate within thirty
(30) days.
(2) If any tenantJboarder does not vacate, Freightway Services, Inc. shall
institute eviction proceedings before a District Justice not later than forty-five (45) days
from the date of the notice, and proceed to evict such tenant~boarder.
(3) The zoning/code enforcement officer of the Borough of New Cumberland
may enter 1440 Simpson Ferry Road during normal business hours, without prior
notice, to monitor compliance with the zoning ordinance, and until such time as the
actual use of the premises is in compliance with the ordinance.
(4) Freightway Services, Inc. will forthwith pay docket costs to include the filing
and service fee to plaintiff.
Edgar B.. Bayley,
Andrew C. Sheely, Esquire
Solicitor for Borough of New Cumberland
Roger R. Laguna, Esquire
For Defendant
Court Administrator
:sal