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Home My WebLink About99-00193 , ~, , ,U ,): ~ ~' ~ ,~ , It', Jio,' .' .,' ~ ! ~ -4 ',\,'~~ r ';1. " ," " , I j' Ii c). '- lr,' I;.~ N 0:':.. ~Q ~ ) - . ) .tj J,~: ) ~ (1 c.. ('/ >. ~J ~h' Co') -", oJ(\ ,'/,.\ C'\.J J> t~li o. 'i- {.L In i)~!tU :It,' U., C/1 ,~. . () ::'J 0'1 Cl bi (J . ;'" ....'{ G~ I" .. ) I,Ur,' ~~! k" ,. ~ ' ""1 s)\' (',J 61' , rt:\: (:I 'I, I' J .'< ' , f: L;c. U' t,',' , ~) L.'1 () ... Itl ~: b~ -'-, ;'~ .. : ~;J 1;:; So/ ,~ t-I_,l -,~ j -:! '!' , ;i: ) .' I' .. '- I "4-),.' c') .~ / r) ~c:~ ' , '\1 { fj CI{ I , '(,I!( , I , , . U.' It. r,~' i ~ I ;" ! ~J jf '"L Hi !j~ ':t, "-~ E' ) l.I m () (1' I;, l."W 0''''101:11 SNELlMl<ER. BRENNf:MAN 8l SPMtE was denied by Defendant on October 30, 1998 was, aocording to Plaintiff's Amended Complaint, denied wi thin the time period established by extensions granted by Plaintiff to Defendant for action to be taken with respect to such plan. 4. Prior to the initiation of this action, Plaintiff filed a Notice of Appeal docketed in this Court to No. 98-6773 from a written deci.sion of the Defendant dated November 3, 1998, which written decision communi.cated the determination of the Defendant ooncerning the plan made on october 30, 1998. 5. Subsequent to the initiation of this action, Plaintiff filed a Notice of Appeal docketed in this Court to No. 99-935 from a written decision of the Defendant dated January 18, 1999, whioh written decision communicated a determination of the Defehdant concerning the alternate revised subdivision and land development plan made on January 4, 1999. 6. Upon initiation of this action sub iudice, Plaintiff noticed the depositions of each Supervisor of the Board of Supervisors of Middlesex Township, with each deposition to take place on successive dates beginning March 1, 1999. 7. The nature of an action in mandamus is to require the performance of a legal duty in which a plaintiff has a right to performance. 8. This action in mandamus initiated by Plaintiff seeks approval of subdivision plans submitted by Plaintiff to Middlesex Township. -2- L"W O-"'fICI,1I SNEU1AKER, DRtNNEMAN A: SPARE 13. T~e discovery of any facts necessary to a proper disposition of this action by Plaintiff can be acoompUshed by interrogatories, requests for adll!lssions or through the review of documentation available to Plaintiff by public inspection or in response to a request for production of documents. 14. For the reasons set forth above, the deposition oiscovery which Plaintiff seeks is sought in bad faith. 15. Plaintiff has no legitimate need to take the deposition testimony of each Supervisor when more economical and direct methods of discovery exist to solicit and establish faots relevant to this action in mandamus. 16. For the reasons set forth above, good cause exists to preclude the depositions of the members of the Board of Supervisors. 17. For the reasons set forth above, justice requires an order be entered precluding the deposition discovery by Plaintiff. 18. The individual members of the Board of Supervisors are not going, aged or infirm witnesses. 19. Because an emergency situation or condition does not exist and for the reasons set forth above, good cause e~ists fox a stay of the depositions pending resolution of this Motion. 20. Counsel for Plaintiff does not consent to this Motion. WHEREFORE, Defendant Board of Supervisors of Middlesex '-4- TRIPLE INC. , CROWN CORPORATION, IN THE COURT OF' COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION - LAW BOARD OF SUPERVISORS OF MIDDLESEX TOWNSHIP, CUMBERLAND COUN'ry, Defendant NO. 1999 -193 ACTION IN MANDAMUS PLAINTIFF',S ANSWER TO DEFENDANT'S,MOTION FOR PROTECTIVE ORDER Plaintiff Triple Crown Corporation, Inc. responds to the Defendant's Motion for Protective Order to Preclude Discovery by Depositions as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. Plaintiff filed a protective appeal even thol.\gh the action from which the appeal was filed was well beyond any applicable time limits for Defendant to act. 6. Admitted. 7. 'rhe allegations of Paragraph 7 of Defendant's motion constitute a legal conclusion to which no response is required. 8. Admitted. By way of further answer, however, Plaintiff submits that the Plaintiff's complaint in this action speaks for itself . 9. Plaint if f Without admitting the relevance of such allegations, admits that the pleadings in this action are not yet closed. 10. Denied. In fact, no documents or public record have been made avaHable in allY appeal fUed by the Plaintiff in thL'3 or any other action. Fur'thermore, Plaintiff believes and therefore avers that the explanation and reasoning upon which the Defendant will or may rely in attempting to explain its actions and/or failures will be based upon or include interpretation,1 and applications of ordinance provisions which will not appear as part of the "public record". Furthermore, Plaintiff believes and therefore avers that Defendant's constituent members of its board of supervisors were or may have been acting with specific intent to harm the Plaintiff, were or should have been disqualified for bias, and/or may have been acting in concert with others to deprive Plaintiff of its legal rights. 11. Denied. For the reasons stated in Plaintiff's answer to Paragraph 10 above, PlaintHf submits that the depositions of the indi vidual members of the township's board of supervisors are required in order to gain understanding of the true motives and intentions of the Defendant's constituent board members as well as to gain an understanding of possible defenses regarding purported interpretation/misinterpretation or misapplication of various ordinance and statutory provisions. 12. Denied. For reasons heretofore stated, the depositions of the individual members of Defendant board of supervisors are required to gain a full and better understanding of the issues 2 presented by this case, are not barred by any statute or rule of prooedure and, therefore, should be permitted to proceed. 13. The allegations of Paragraph 13 state conclusions of law or projections and characterizations as to which the Plaintiff is incapable of responding. Plaintiff respectfully submits, however, that such allegation is irrelevant. Under Pennsylvania Rule of Civil Procedure 4007.3, methods of discovery may be used in any sequence. Further, under Pil. R.C.P. 4003.1, a party may obtain discovery regarding any matter not privileged which is relevant t.o the subject matter involved in the pending lit.igat.ion, whether it. relates to the claim or defense of the party seeking discovery or the claim or defense of any ot.her party. Further, such rule also provides that it is not. grounds for objections that information sought. Inay be inadmissible at t.rial so long as the information sought is reasonably calculated to lead to the discovery of admissible evidence. Finally, it is also not grounds for objection that. the information sought involves an opinion or contention that relates to a fact or the application of law to fact. Plaintiff respectfully submits that it. is not the Defendant's right to determine the method or means by which Plaintiff's discovery should proceed. Pa. R.C.P. 1091 provides that actions in mandamus are governed by the rules relating to all other civil actions and there is no rule precluding normal discovery nor setting forth or requiring the schedule or sequence of discovery which Defendant proposes. 14. Plaintiff Denied. and any Plaintiff seeks other party in only civil discovery to litigation which in the 3 Commonweal th of Pennsylvania is enU t led under Pennsylvania's Rules of Civil Procedure governing discovery. Plaint.i.ff expressly denies any bad faith whatsoever. 15. Denied. For reasons set forth above, Plaintiff submits that the Plainti.ff is entitled to the deposition testimony of the supervisors. Further, Plainti ff submi ts that it is only by means of actual testimony and deposition that some of the alleged "public records" and the rationale, interpretation or motivation therefor can be properly determined. 16. Paragraph 16 of Defendant's motion states a conclusion of law to which no response is required. 'ro the extent a response is required, however, Plaintiff denies that cause exists to preclude the deposition of the members of the Bbard of Supervisors of Middlesex Township. 17. Denied. Paragraph 17 of Defendant's motion states a conclusion of law to which no response is required. To the extent a response is required, however, Plaint.Hf submits that. the conducting of depositions would, in fact, provide the most economical and direct means of ascertaining the cause of the Defendant's actions and failures to act, provide insight into the interpretation of ordinances and statutory provisions, and otherwise lead to admissible evidence. 18. 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IriC/Ci$ 98, to C/0_ Ci&I]' _. ~$rl Plaint iff' 8 real property impossible without the acquisit ion of additional right..of-way or easementl;l by the municipality with respect t.o improvements which would ot.herwise be reql\ired t.o be made to the t.ownship roadway known as Shady Lane and, further, denied the Plaintiff's applicat.ion for approval of the preliminary subdivision and land development plan for said Shady Lane warehouse. 8, Defendant Board' A denial of the Shady Lane warehouse subdivision and land development plan was based upon alleged requirement.s for improvements to the public st.reet or highway known as Shady Lane and/or its intersection with a state highway known as U,S. Route 11 over 1,000 feet from the Plaintiff's property and, therefore, such denial is an attempt by the Board to impose obli.gations upon the Plaintiff with respect to roadways not on or adjacent to the Plaintiff's property and for which the Board, as the governing body of the t.ownship, is solely responsible, obligated and liable. 9. Al t.hough Defendant.' s denial of the plan was alleged to have been based on inadequacy of access to t.he site, it is, in fact., the Defendant's own failures to comply with requirement.s imposed upon t.he Defendant. by Pennsylvania's st.atut.es t.o maintain, repair and improve its own streets, roadways and bridges, particularly the st.reet and bridge which constit.ut.e Shady Lane, and it is t.he Defendant's allowance of a privat.e part.y to const.ruct a private street near the intersection of Shady Lane with u. S. Route 11 which resul ts in the condi t ions which Defendant claims t.o be inadequate access, traffic problems, etc. 3 10. Plaintiff. believes and therefore avers that the action of the Board in denying Plaintiff's application for approval of a preliminary subdivision and land development plan for the Shady Lane warehouse was and is intended solely to destroy or unlawfully limit Plaintiff's lawful use of its land, with the added result that the Plaintiff is being denied profits from such lawful use and has been forced to incur additional legal, engineering and other expenses. 11. Defendant Board's actions or failures to act and failure to approve Plaintiff's Shady Lane warehouse subdivision and land development plan is and was a violat ion of the J.egal and statutory requirements imposed upon the Defendant Board by the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101, et seg. 12. At least one of the members of the Defendant Board of Supervisors had made public statements before the Plaintiff's plan was before the board of supervisors to the effect that he was opposed t.o the Plaintiff's px'oposed plan and that no development of any light industrial use on the Plaint i ff' s property would ever be approved because of purported or alleged ill effect on other others of other properties abutting Shady Lane and Plaintiff believes that. the Defendant Board of Supervisors of Middlesex Township as a body adopted such position. 13. The action or inactions of the Defendant have deprived Plaintiff of the lawful use of its property and has left the Plaintiff without an adequate remedy at law. 14. Defendant has failed to perform its duties and functions lawfull.y and in good faith as required under the Municipalities Planning Code and as required under the Second-Class Township Code 4 and other statutory provIsions obligating the Defendant. (1) t.o review and approve lawfully submit.ted applications for subdivision and land development plan approval; (2) to observe and preserve the rights of substant i ve and procedur.'al due process guarant.eed t.o the Plaintiff by the United Stat.es and Pennsylvania Constitutions; and (3) to maintain, improve and repair its st.reets and roadways. NHEREFORE, Plaintiff demands entry of a judgment. against. Defendant Board of Supervisors of Middlesex Township directing the said Board to approve the subdivision and land development plan for t.he Shady Lane warehouse as submitt.ed by the Plaintiff. COUNT II 15. The allegations of Paragraphs 1 through 14 above are hereby incorporated herein by reference. 16. As part of an alternative revision to the Shady Lane Warehouse Plan, and in response to comments of the staff of Middlesex Township and t.he failure of the Board t.o reasonably and timely address request.s for answers as to alleged aocessway issues, Plaint.iff, on or about August 2, 1998, submit.ted to Defendant. for considerat.ion as an opt.ion an alt.ernative plan for access to the sit.e and request.ed t.hat. such alternative access plan be considered if t.he Defendant. det.ermined not. to act affirmat.ively on cert.ain request.s for permission to allow access as originally planned acrOBS a previously proposed and approved street or driveway known as Redco Court as hereinabove described, 17. Despite repeated requests by Plaintiff, Defendant. Board failed and refused to act. upon the requested waivers or modificat.ions with respect t.o the original proposed accessway at 5 .,.'11 ~7 ~ I I .I /, y-< , I r.~~//It ''I. rll/I;.'1',,~/, / //;1, 1/ I /1 / /f/I/t/ /1 / <. ~.' Middlesex Township designated as Light Industrial under the township's zoning ordinances. 4. The property of the Plaintiff had been approved as three lots on a subdivision plan known as the Redco Business Plaza which was approved by the Board of Supervisors of Middlesex Township on or about January 6, 1988, which 9aid plan appears in the Office of the Recorder of Deeds of and for Cumberland County at Plan Book 55, Page 22, et seg., and which said plan limited the access to the Plaintiff's property to the driveway or accessway shown on the Redco Business Plaza plan to an area known as Redco Court. 5. On or about February 12, 1998, Plaintiff applied to the Board for approval of a preliminary subdivision and land development plan for the Plaintiff's property, which said plan is known as the "Shady Lane Warehouse Plan", which said plan continued to propose access over the area which had formerly been known. as Redco Court. During the review process, various supplements and revisions were made to said plan and, by August 2, 1998, the application was proper in all respects and the proposed use of t.he land is or was consist.ent with and conformed to t.he uses allowed wit.hin t.he district under the applicable provisions of the township zoning ordinance in effect at. the time of t.he original application. All fees have been t.endered and other requirement.s of the township's ordinances have been met. 6. Plaintiff, at various points after submission of its application with respect to the Shady Lane Warehouse Plan, granted ext.ensions within which the municipalit.y and Defendant Board were 2 '. required to act under the Municipalities Planning Code to November 3, 199B. 7. Defendant Board, on or about October 30, 1998, denied the waiVers and modifications which, in essence, made access to the Plaintif f' II real property impossible withollt the acquisition of additional dght-CJf-way or easements by the mun.ici.pality with respect to improvements which would otherwise be required to be made to the township roadway known as Shady r,ane and, further, denied the Plaintiff's application for approval of the prel:lminary subdivision and land development plan for said Shady Lane warehollse. B. Defendant Board's denial of the Shady Lane Warehouse Plan for subdiviBion and land development was based entirely upon issues and concerns relating to .improvements requested or required by the township aB to the public street or highway known as Shady Lane and/or its intersection with a state h.ighway known as U.S. Route 11 and, therefore, such denial is based upon attempts by the Board to impose obligations upon the Plaintiff with respect to roadways not on or adjacent to the Plaintiff's property and for which the Board, as the governing body of the municipality, is solely responsible, obligated and liable. 9. Plaintiff believes and therefore avers that: the action of the Board in denying Plaintiff's application for approval of a preliminary subdivision and land development plan for the Shady Lane warehouse was and is intended sole ly to provide an impediment to Plaintiff's lawful use of its land and to delay the Plaintiff's 3 " completion of the project, all of which will result in lost profits and added expense to the Plaintiff. WHEREFORE, PlaintIff demands entry of a judgment against Defendant Board of Supervisors of Middlesex Township directing the said Board to approve the subdivision and land development plan for the Shady Lane warehouse as submitted by the l>laintiff. COUNT II 10. The allegations of Paragraph 1 through 9 above are hereby incorporated herein by reference. 11. As part of the final revisions to the Shady Lane Warehouse Plan, and in response to comments of the staff of Middlesex Township, and upon the failure of the Board to take any action with regard to waivers or modHications requested by Plaintiff as part of the Shady Lane Warehouse Plan, on or about August 2, 1998, Plaintiff added for consideration by Defendant an option or alternative plan for access to the site and requested that the alternative plan showing the alternative access be considered if the Defendant determined not to grant the waivers to permit 01" allow access as originally planned across a proposed street or driveway known as Redco Court. 12. Despite the actions of the Defendant on October 3D, 1998 as hereinabove alleged, the Defendant took no action whatsoever with regard to the alternative or option for an alternative means of access to the Plaintiff's property to and from Shady Lane as depicted on Exhibit "A". 4 1 I I -. I I . . I '':u... .-V='f"_ \""% ",. \' ,'/, ~ . 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