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HomeMy WebLinkAbout03-2768Public/Sieve/West Pennsboro township/Petition for Special Injuncfion.v. Wilson.061003 WEST PENNSBORO TOWNSHIP MUNICIPAL AUTHORITY, Plaintiff : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : RICHARD WILSON and : CIVIL ACTION IN EQUITY MARY WILSON. Husband and Wife, : Defendants : PLAINTIFF WEST PENNSBORO TOWNSHIP MUNICIPAL AUTHOriTY[S, PErlTION FOR 5 ~JUNCTIVE ~LIEF PURSUANT TO PA R.C.P. SECTION 1531 Petitioner. West Pennsboro Township Municipal Authority ("WPTMA' or "Authority"), by its attorneys, Salzmann, DePaulis & Fishman, P.C., hereby petitions this Court to issue a preliminary injunction pursuant to Rule 1531 of the Pennsylvania Rules of Civil Procedure, and in support thereof avers as follows: 1. Petitioner. WPTMA, is a municipal authority of the Commonwealth of Pennsylvania. West Pennsboro Township Municipal Authority is undertaking a construction project to provide sewer collection services to the Plainfield Pennsylvania. 2. area of West Pennsboro Township, Cumberland County, Respondent. Richard and Mary Wilson ("Wilson's") are adult individuals residing at 140 Greason Road. Carlisle. Cumberland County, Pennsylvania. 3. WPTMA has determined that an easement is required across Wilson's property at 140 Greason Road. Carlisle. Cumberland County, Pennsylvania, to construct the sewage collection system being constructed for WPTMA as more fully set forth in Exhibit "A" hereof. 4. WPTMA was unable to voluntarily obtain the required easement from Wilsons. 5. On October 15, 2002 WPTMA, in accordance with Section 404 of the Eminent Domain Code. a Declaration of Taking and Notice of Filing of Declaration of Taking docketed to No. 02-4995 Civil, were filed in the Court of Common Pleas of Cumberland County, Pennsylvania. A copy of the Declaration of Taking and Notice of Filing are attached hereto and incorporated herein as Exhibit "A". 6. Wilsons filed no objection to the Declaration of Taking or taken any other legal action to dispute the said condemnation. 7. Wilson on or about May 28, 2003 and on several other occasions advised Township officials and contractors working on the sewer project that they may not enter onto his property to exercise their rights of possession pursuant to the aforementioned condemnation. 8. WPTMA can not complete the construction of the sewer project without the aforementioned easement except at great cost, time and risk to the engineering integrity of the proposed sewer system. 9. Petitioner, WPTMA, will suffer immediate and irreparable harm if the Respondents prevent access to their property for the excavation and laying of sewer pipe within the easement. Specifically, WPTMA and its ratepayers will suffer irreparable harm because: a. The construction of the project will be stopped and WPTMA will suffer exposure to delay damages to the contractor. b. It will be impossible for WPTMA to redesign the sewer system to its original form and operational integrity if access to Wilson's Property is not obtained. c. WPTMA ratepayers will be unable to pay or recoup costs of a redesign of the sewer project. d. The current PennVest Loan and Grants will be compromised by any need for redesign or delay in the project. e. The contractor expects to be working on the subject site within the next two (2) weeks and cannot bypass Wilson's property without risk to the integrity of the system. 10. A greater injury will result in this case from refusing to grant a preliminary and permanent injunction than from granting it, because: a. The Wilson's will suffer little hardship if required to permit installation of the sewer within the easement in as much as the contract for the sewer line construction requires the complete restoration of the property to pre-construction conditions. b. The Wilson's have a complete remedy in petitioning for damages resulting from the condemnation of the easement. 11. The issuance of an injunction to permit construction and installation of the sewer line will restore the parties to their status before the Wilson's wrongful conduct took place. CONDEMNATION BY WEST PENNSBORO TOWNSHIP, OF CERTAIN LANDS IN THE TOWNSHIP OF WEST PENNSBORO, CUMBERLAND COUNTY, PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY. PENNSYLVANIA :NO. 4.c1 ,5 : CIVIL ACTION LAW : EMINENT DOMAIN - IN REM NOTICE OF FILING OF DECLARATION OF TAKING In accordance with Section 404 of the Eminent Domain Code (26 Pa. S. A. §1-404) and Section 2201 and 2205 of the Second Class Township Code, 53 P.S. 67501 and 67505. West Pennsboro Township. a Township of the Second Class, incorporated under the laws of the Commonwealth of Pennsylvania with offices at 2150 Newville Road. Carlisle, Cumberland County, Pennsylvania states: A Declaration of Taking was filed this date, the 15th day of October. 2002, as of the above term and number, pursuant to a Resolution adopted by the Board of Supervisors of West Pennsboro Township. Cumberland County, Pennsylvania on September 16, 2002, wherein the following properties were condemned for temporary and permanent easements for a public sewer collection and treatment system in West Pennsboro Township. An easement across property owned by you has been condemned by such Declaration of Taking. A copy of the Declaration of Taking is attached hereto and made part hereof as Exhibit "A". If you wish to challenge the power or fight of West Pennsboro Township to appropriate the condemned property, the sufficiency of the security, the procedure followed by the Condemnor. or the Declaration of Taking, you am required to file preliminary objections within thirty (30) days after being served with this Notice. If you wish to view the plan and/or the Resolution authorizing the taking by the Township. you may do so at its principal offices located at 2150 Newville Road. Carlisle. PA 17013-7746. Steven J. Fishman, Esquire SALZMANN, DePAULIS & FISHMAN. P.C. 95 Alexander Spring Road. Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for Condemnor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION - LAW CONDEMNATION BY WEST PENNSBORO : TOWNSHIP OF CERTAIN LANDS IN THE : TOWNSHIP OF WEST PENNSBORO, : CUMBERLAND COUNTY, PENNSYLVANIA : EMINENT DOMAIN - IN REM DECLARATION OF TAKING The Township of West Pennsboro. Cumberland County, Pennsylvania, does hereby respectfully declare that: 1. The Condemnor is the Township of West Pennsboro, with offices located at 2150 Newville Road. Carlisle, Cumberland County, Pennsylvania. 2. The properties described in Exhibit "A" attached hereto and made a part hereof. are hereby condemned for temporary and permanent easements for the construction and maintenance of a public sewer collection system, pursuant to 53 P.S. Sections 1081. 67501 and 67505. as amended and as authorized by a resolution adopted October 16. 2002. by said Condemnor. A copy of said resolution is attached hereto and made a part hereof as Exhibit "B." The original thereof may be examined at the office of the Township. 2150 Newville Road. Carlisle. Cumberland County, Pennsylvania. 3. The purpose of the condemnation is to own. construct and maintain a public sewer system tbr use by the residents of the Township of West Pennsboro. Cumberland County. Pennsylvania. 4. A description of the properties condemned sufficient for their identification is set forth in Exhibit "A" attached hereto and made a part hereof. ! F ..X~IBIT ! 5. The nature of the interests in and to said properties listed in Exhibit "A" is for temporary or permanent easements as shown on the plans/drawings/maps attached hereto in Exhibit "C." 6. A plan showing the condemned property may be inspected at the West Pennsboro Township office. 2150 Newville Road. Carlisle. Cumberland County, Pennsylvania. 7. The just compensation for the taking, when determined, shall be paid out of the general funds of the Township of West Pennsboro and secured by its statutory power of taxation and no other security is required in accordance with Section 403(b) of the Eminent Domain Code. 53 P.S. 1-403(b). Dated: Steven J. Fishman. Esquire Attorney ID No. 16269 Salzmann. DePaulis & Fishman. P.C. 95 Alexander Spring Road. Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for West Pennsboro Township. Condemnor COMMONWEALTH OF PENNSYLVANIA : : SS COUNTY OF CUMBERLAND : Gerald Bm-rick, being duly sworn according to the law, deposes and says that he is Chairman of the Board of Supervisors of West Permsboro Township, Cumberland County, Pennsylvania and makes this Affidavit in its behalf., being familiar with the facts and having authority so to do; and that all of the statements in the foregoing Declaration of Taking are true and correct to the best information, knowledge and belief. NO'fARIAL S[.~L EVELYN M. swARTZ, Notsry Public IWest Pennsboro Twp., Cumbertand Co., PA1 ~_My Commission Expffe$ Oct. 13, 2003 . Gerald Barri~k, Chairman West Pennsboro Township Board Of Supervisors Sworn to and subscribed befo~ me, this /5'~'day of ff,~:)~-~' ~ t, 2002. Not~ P4b~c/ MH 1~ f-~ © NEW SAXITARY (l'm.) (T'~.) MH 15.2 PHYSICAL FEATURES SHOWN ON THIS PLAN ARE BASED ON AERIAL PHOTOGRAMMETRY PROVIDED BY LOCKWOOD MAPPING, INC., ROCHESTER, NY, W~]H PHOTOGRAMMETRIC GROUND CON3~OL ESTABLISHED BY FISHER MOW~Y ROSENDALE AND ASSOCIATES OF CARLISLE, PA. 1995. ANY SURVEYING PERFORMED WAS FOR THE PURPOSE OF DESIGNING THE WASTEWATER COLLECTION AND CONV~YANCE SYSTEM ONLY. THIS PLAN IS A PORTION OF 33~E SANITARY SEWER MASTER PLAN PREPARED BY CRT ENGINEERING SERVICES, HARRISBURG, PA. "PLAINFIELD AREA -- KEY PLAN' DATED 2002. ~VEYS TO DETERMINE OR VERIFY THE PROPERTY INFORMATION PLAN WAS TAKEN DIREC~-Y FROM CUMBERLAND COUNTY SEPTEMBER 5, 2002 Ro~=rt and M~rie Ham~n~ Parcel -~46-18-!394-076A EXHIBIT A SANITARY SEWER PLAN WEST PENNSBORb TOWNSHIP MUNICIPAL AUTHORITY ~ST PENNSBORO TOWNSHIP CUMBERLAND COUNTY, P~NSYLVANIA SCALE: I' = 50' DWG, No. R-12-12 MH 15.9 GREASON ROAD DT..SO.A~UE~ SANITARY s~ pHYSICAl FEATURES SHOWN ON THIS PLAN ARE RASED ON AERIAL PHOTOGRAMMETRY PROVIDED BY LOCKWOOD MAPPING, INC., ROCHESTER, NY, W~TH PNOTOGRAMME~IC GROUND cONTROL ESTABLISHED BY FISHER ~OWERY ROSENDALE AND ASSOCIATES OF CARLISLE, PA. 1995. ANY SURVEYING pERFORMED WAS FOR THE PURPOSE OF DESIGNING THE WASTEWATER COLLECTION AND CONVEYANCE SYSTEM ONLY. THIS PLAN IS A PORTION Of THE SANITARY SEVER MASTER PLAN pREPARED ' BY CRT BNGINEERING SERVICES, HARRISBURG, PA. 'PLAINFIELD AREA - KEY PLAN" DATED 200~ ~VEYS NO FIELD SUE OF ANY KIND WERE PERFORMED TO DETERMINE OR VERIFY THE PROPERTY INFORMATION SHOWN. PROPERTY [NFORMA~ON SHOWN ON THIS PLAN WAS TAKEN DIRECTLY FROM CUMBERLAND COUNTY TAX ASSESBgENT MAPS AND RECORDS WITHOUT VERIFICATION. O' 50' 100' 150' EXHIBIT A SANITARY SEWER PLAN WEST PENNSBO~O TOWNSHIP MUNICIPAL AUTHORITY APRIL 2, 2002 DWG. No. 0-12-1 Harold and Bertha Miller _ P~rc=2! =46-07-~)4~5-028B PHYSICAL FEATURES SHOWN ON THIS PLAN ARE BASED ON AERIAL PHOTOGRAMMETRY PROVIDED BY LOCKWOOD MAPPING, INC., ROCHESTER, NY, W['~I PHOTOGRAMME'~IC GROUND CONTROL ESTABLISHED BY F~SHER MOWERY ROSENDALE AND ASSOCIATES OF CARLISLE, PA. 1995. ANY SURVE'Y~NG PERFORMED WAS FOR THE PURPOSE OF DESIGNING THE WASTEWATER COLLECT[ON AND CONVEYANCE SYSTEM ONLY. THIS pLAN IS A pOET[ON OF THE SANITARY SEWER MASTER PLAN PREPARED BY CET ENGINEERING SERVICES, HARRISBURG, PA. "pLAINFIELD AREA -- KEY PLAN" DATED 2002. YSNo FIELD SU OF ANY KIND WERE PERFORMED TO DETERMINE OR VERIFY THE PROPERTY INFORMATION SHOWN. PROPERTY INFORMATION SHOWN ON THIS PLAN WAS TAKEN D[REC'~Y FROM CUMBERLAND COUNTY TAX ASSESSMENT MAPS AND RECORDS W~THOUT VERIF~CA'DON. 0' 50' 100' 150I EXHIBIT A SANITARY SEWER PLAN WEST PENNSBORO TOWNSHIP MUNICIPAL AUTHORITY CUMBERLAND COUNTY, PENNS'fl. VAN[A AUGUST B, 2002 DWG, No. S--12-~3 Merle and Ma~.l~.ne Myers Parcel ~46-t8-!392-009 MH 1~ MH 16 MH 15 MH / / klH 15A PHYSICAL FEA'~JRES SHOWN ON THIS PLAN ARE BASED ON AERIAL PHOTOGRAMMETRY PROV[DED BY LOCKWOOD MAPPING. INC., ROCHESTER. NY, W[T~ PHOTOGRAMMETRIC GROUND CONTROL ESTABITSHED BY FISHER MOWERY ROBENDAIF AND ASSOCIATES OF CARL[Bt.[. PA. 1995. ANY SURVEYING PERFORMED WAS FOR THE PURPOSE OF DESIGNING THE WASTEWATER COLJ.[CT[ON AND CONVEYANCE SysTI[M ONLY. THIS PLAN ES A PORT[ON OF THE SANITARY SEWER MASTER pLAN PREPARED BY CRT ENGINEERING SERVICES, HARRISBURG, PA. "PLAINFIELD AREA - KEY PLAN" DATED 2002. YSNO FIELD SU Of ANY KIND WERE PERFORMED TO DETERMINE OR VERIFY THE PROPERTY INFORMATION SHOWN. pROPERTY INFORMATION SHOWN ON THIS PLAN WAS TAKEN DIRECTLY FROM CUMBERLAND COUN%Y TAX ASSESSMENT MAPB AND RECORDS WET, OUT ~RIF~CAT[ON. ~' 50' 100' ~50' EXHIBIT A SANITARY SEWER PLAN WEST PENNSBORO TOWNSHIP UUNICIPAL AUTHORITY AUGUST 30, 2002 DWG. No. R-12-4 parcel ~46-18-t394-077 NEW S~i~I'ARY (TYPO MH 15.12 PHYSICAL FEATURES SHOWN ON THIS PLAN ARE BASED ON AERIAL PHOTOGRAMMETRY PROVIDED BY LOCKWOOD MAPPING, [NC., ROCHESTER, NY, VE31~ PHOTOGRAMMEI~IC GROUND CON3~OL ESTABLISHED BY F~SHER MOWERY ROSENDALE AND A$SOC[A~S OF CARLISLE, PA. 1995. ANY SURVEY]NG PERFORMED WAS FOR THE PURPOSE OF DESIGN[NG THE WAS~WATER COLLEC~ON AND CONVEYANCE SYS~M ONLY. THIS PLAN ES A PORT[ON OF THE SANITARY SEWER MASTER PLAN PREPARED BY CRT ENGINEERING SERVZCES, HARRISBURG, PA. 'PLAINFIELD AREA - KEY PLAN' DASD 2D02. NO FIELD SURVEYS OF ANY KIND WERE pERFORMED TO DETERMINE OR VERIFY 3~E PROPERTY INFORMA3'[ON SHOWN. PROPERTY INFORMAT[ON SHOWN ON THIS PLAN WAS TAKEN DIRECTLY FROM CUMBERLAND COUNTY TAX ASSESSMENT MAPS AND RECORDS W~THOUT VERIFiCATiON. O' 50' 100' 150' EXHIBIT A SANITARY SE.WER PLAN WEST PENNSBOEO TOWNSHIP MUNICIPAL AUTHORITY ~EST PE~NSBORO TOWNSHIP CUMBERLAND COUNTY, PENNSYLVANIA SCAI~ 1' = 50' APRIL 2, 2002 DWG. No. Q-15-1 __ EXf{IBIT--" C" Richard and Mary Wilson John$on~ ~ Deed Book 1-31, Page 654 COIVODOGUIiVET CHEEK .~. ~ New B" Force Main- 30' ~de Permanent Sewer Easement Area of Permanent Easement = !B,£36 Sq. Ft, 0 150 300 Wide Temporary Construction Easement HERBERT W. AND ANNE M. MYERS Deed Book /74, Page 230 DETAIL OF EASEMENT AREA NOT~: This Plan has been prepared for right-of-way acquisition only and shall not be construed as a praperty line survey. Prbperty lines have been plotted from deed ~escr/~tions and re#ec! any inaccuracies therein, The 30 foot wide permanent easement shall,be, located 15 foot on each side af the farce main as canstrucrea. D. L. REIBER ASSOCIATES PROFESSIONAL LAND SURVEYORS PLAN OF SANITARY SEWER EASEMENT OVER LANDS OF HERBERT W. MEYERS ANNE M, MEYERS TO BE ACQUIRED BY WEST PENNSBORO TOWNSHIP MUNICIPAL AUTHORITY WEST PENNSBORO TOWNSHIP CUMBERLAND COUNTY PENNSYLVANIA D~R'~'L L. ;URVEYING '" MAPPING" GPS TECHNOLOGIES Herbert W. Myers and Anne M. Myers Parcel 946-07-0475-012 EXI{IBIT "C" WEST PENNSBORO TOWNSHIP and WEST PENNSBORO TOWNSHIP MUNICIPAL AUTHORITY, Plaintiffs VS. RICHARD WILSON and MARY WILSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-2768 EQUITY CIVIL ACTION - EQUITY IN RE: PETITION FOR PRELIMINARY INJUNCTION BEFORE HESS, J. ORDER AND NOW, this 2 o" day of June, 2003, the petition for preliminary injunction is DISMISSED. BY THECOURT, Steven J. Fishman, Esquire For the Township Richard and Mary Wilson Pro Se :rim y)fi A. Hess, J. WEST PENNSBORO TOWNSHIP and WEST PENNSBORO TOWNSHIP MUNICIPAL AUTHORITY, Plaintiffs VS. RICHARD WILSON and MARY WILSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-2768 EQUITY CIVIL ACTION - EQUITY IN RE: PETITION FOR PRELIMINARY INJUNCTION BEFORE HESS? OPINION AND ORDER Before the court is a request of the plaintiffs for injunctive relief. Hearing was held this date. The file in this case was brought to the Chambers of the undersigned shortly before the hearing. It contained only our order of June 12, 2003, setting the hearing. For reasons unknown to the court the original petition was not left with the Prothonotary when it was filed. The petition has since been made a part of the file. The response of the defendant (some twenty-two pages which he read into the record) has been marked as an exhibit and is now part of the file. It is only after this morning's hearing that we have had the opportunity to review the file in its entirety and it is belatedly apparent to the court that no complaint in equity has been filed in this matter. This is a fatal procedural defect. As noted in Hartman v. Peterson~, 265 A.2d 127 (Pa. 1970), an action may not be commenced by petition. Rather, an action is commenced by complaint or by a writ of summons. It is not our habit to elevate form over substance. The defect, however, in this case is 03-2768 EQUITY jurisdictional and we are simply without 'power to make any order whatsoever. ' Hartman at 128. See also DeSanto et al. v. Smith, 38 C.L.J. 161 (1987, Bayley J.) Accordingly, we enter the following order. AND NOW, this DISMISSED. ORDER day of June, 2003, the petition for preliminary injunction is Steven J. Fishman, Esquire For the Township Richard and Mary Wilson Pro Se BY THE COURT, A. Hess, J. :rlm 2