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HomeMy WebLinkAbout99-02051 "'< OH ",::;j ;.1> ....l....l "'~ ZZ OZ ~~ o . U1:: ~~ HO ~U ~~ ='" H'" zS HU , , o I I o , , o , , o I e ' " 0 Hi H' .....' > ' .....' ui I -, '" , 01 NO , , <7>' <7>, , 0' z: ~ '" .. o 0: E-< .... .... .... '" c ..... ., H '" 00 > , , , o , I I , , , , , , , -",' He: ..~ I ..., C ' ....l" ' "'....' <l1.l1 tJ"" I o , o , , , I I I , ...i "" :il Z o "" '" u ~ '" e;: , , , , o , , , , , , I , , , , , , , , , , I , , , o , I , , , I , , ~} f .. ; .~-'~ I - , I~ i I : , ' "- ~.--~; T " ,; :~ ~~1 ;~;:. '" o ~ E-< Z '" (") ill G u:> 0 ...., "TJ ir ,~ r. -,.1 ::~ ;< ;.0 , i:!J (>., :.,) , ..-:rn C) ')I.."".J r:= . :;,1 " ..,., ~::L) ,._~,.. t' ~ ,:':'3i , -"..~ .) p (3fT, .....:.. '-" ""I :.< " '-' :D -< ~ :.. " ,. .,.. "': :: 2 " " H 7:::: ) ~ ~ " ~1 ~ ::;: -- 10. The averments of paragraph 10 of the Complaint arc denied as stated. Rather, it is avcrred that the Defendant drove across a grass airstrip or runway. II. Admitted. 12, Admitted. 13. The averrllents of paragraph 13 of the Complaint are denied as stated. Rather, it is averred that when the Defendant contacted the Plaintiff by telephone, the Defendant was still on the property. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. The averments of paragraph 18 of the Complaint are denied. It is denied that the Defendant trespassed onto the property; rather, it is averred that on or about October 10, 1998 the Defendant was on official business in pursuance of his duties as a Constable, i.e., attempting service of documents. 19. The averments of paragraph 19 of the Complaint are denied. Rather, it is averred that on or about October 10, 1998, the Defendant was attempting to serve official documents. 20. The averments of paragraph 20 of the Complaint are denied. Rather, it is averred that on October 10, 1998, the Defendant was acting in his official capacity as a State Constable. 21. The averments of paragraph 21 of the Complaint are denied as stated. Rather, it is averred that the Defendant drove in the back of the property. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the - 2- Document #: /52820./ 46. The averments of paragraph 46 of the Complaint arc denied, Rather, it is averred that the issuance of an injunction would interfere with the performance by the Defendant of his official duties as a State Constable and Iherefore adversely a!Tect the public interest, health, safety and welfare of the community. 47. The averments of paragraph 47 of the Complaint arc denied, Rather, it is averred that there is no compelling need or necessity for the issuance of an injunction. WHEREFORE. Defendant Donald L. Flagle, II. respectfully requests that the Complaint be dismissed and that judgment be entered in his favor. NEW MATTER 48. At all times material hereto. the Defendant was acting in his official capacity and in performance of his duties as a State Constable in attempting to serve documents on the Plaintiff. 49. In his official capacity as a State Constable the Defendant was entitled to the privilege of entering the subject property and therefore cannot be considered a trespasser. 50. In his official capacity as a State Constable the Defendant is entitled to immunity from liability. .6- DoclImenrll: 1$2820./ VERIFICATION The undersigned. Donald L. Flagle. II. makes this Verllication on his behalf. being authorized so to do. certifying thut the foregoing fucts are true und correetlo the best of his knowledge. information. and belief: and further states that false statements herein are made subject to the penalties of 18 Pa. C.S,A. ~4904. relating to unsworn falsilications to authorities. '1 Dated: / ,11''f~/'9 ?/ DoclImenl No' /528]0./ CF.RTWICATF.O... Sf:RVICF. .. ~ I I I I ! I. Jamcs F. Carl. Esquirc. do hcrcby ccrti Cy that on thc datc sct Corth below. I did scrvc a truc and corrcct copy orthc Corcgoing docul1lcnlupon the IlJllowing person at the Collowing addrcss indicatcd bclow by scnding same in thc United States mail. first-class. postage prepaid: Toni I.cc Cavanagh. Esquire Jackson. Cavanagh & Stivalc. P.C. MillsoCVictoria Suilc 30 I 1489 Baltimorc Pikc Springfield. P A 19064 METZGER. WICKERSHAM, KNAUSS & ERB, P.C. ~FCV mes F, Carl. EsqUIre Date: May 3, 1999 Documenl #: 152820./ "'''; 0.... Yo "'< iJ~ ....,.. "'''' z zz 0"' ~'" o . u~ ~~ o ....u '" :>0 8j "'''' "'"' ....'" zS ....u ~ '" .... .... .... > .... u .... .... .... .... .... " c .... ., ~;;: '" ,.. ~ .... '" " .... c <.:> '" j-g '" <ll ..... <ll ....'" '" .... ..: z o '" .", ........ H l-~ :< "'.... ....Z "'.... :Jj "'''' :r. o ....U "'''' ....'" ..:.... z 00 "'....~ ~E-iW O~!:: e1~i1 :<'" "'''':< ~gs~ :. " ., , " - I."::: 2= ~~ , , i:g- :Jf :;: - '" o N I '" '" o z '" > - ,- - -." .s;;;::: .: ...,.. :: ;(.::.. { (> v:> (y r:- v:> n ~- ; ~ "T; - r~ ....: 'T\ ..;,.; ;( '11 i " ", ;-:J , ; ~ ,l., ., -' -,' " " .. , (-; ~ .. r:1 ; '.. t':? ,~ "'" ~- :u j] -' -< -.l --... road, 8. The Defendant passed several no trespassing signs as he gained entry onto the Property. 9. The Property has a fence and gate across the main driveway. 10. The Defendant drove across a grass field in order to get around the fence and the gate blocking entry to the Property. II. The Defendant drove between buildings locted on the Property and parked in front of the Plaintiffs residence. 12. The Defendant left the Property when he failed to make contact with the Plaintiff. 13. On or about September 21, 1998, the Defendant contacted the Plaintiff by telephone after having been on Plaintiffs Property. 14. The Plaintiff instructed the Defendant that the Defendant had trespassed on the Plaintiffs Property. 15. The Plaintiff instructed the Defendant that the Defendant was not invited or authorized to enter the Plaintiffs Property that day or in the future. 16. The Defendant requested that the Plaintiff put that information in writing. 17. On or about September 23,1998, Plaintiffs attorney, Lee A. Stivale, Esquire, sent Defendant correspondence instructing the Defendant that he had trespassed on the Property of the Plaintiff and that he should not attempt access to the Property again. A copy of the said letter is attached hereto. made a part hereof and marked as Exhibit "A." 18. On or about October 10, 1998, the Defendant trespassed onto the Plaintiffs Property a second time. 19. The Defendant was not performing any official duties related to his employment as a Pennsylvania State Constable serving the area of Cumberland County. 20. The Defendant was acting as a private citizen as he was not on duty on October 10, 1998 when he entered the Property after notice by oral communication. wrillen communication and posted no trespassing signs that he was not permilled to be on the Property. 21. The Defendant once again drove around a fence and a gate specifically in place to exclude intruders and trespassers. 22. The Defendant entered the Property and took pictures of buildings on the Property as well as pictures of the surrounding area. COUNT I TRESPASS 23. Paragraphs I through 22 are incorporated herein as though set forth at length. 24. On or about October 10, 1998, the Defendant entered the Property of the Plaintiff without permission. 25. The Plaintiff has the right to exclusively possess and use the Property. 26. The Defendant was not engaged in the business of the Commonwealth of Pennsylvania as a Constable at the time of his entry onto the Property. 27. The Defendant was not acting in any official capacity or performing any official duties when he entered the Plaintiffs Property. 28. The Defendant was not acting pursuant to and/or under the direction of any government or judicial official when he entered the Property and took pictures of the Propeny. 29. The Defendant's unauthorized entry onto the Property constitutes trespassing. 30. The Defendant's actions caused the Plaintiff to incur attorney's fees to keep the Defendant off Plaintiffs Property. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter judgment in favor of the Plaintiff and against the Defendant in a nominal amount, plus attorneys' fees, litigation expenses and costs of suit. COUNT II NUISANCE I I 31. Paragraphs 1 through 30 are incorporated herein as though set forth at length. 32, The Property is privately owned by Meadowland Holdings which has leased the exclusive right to use and possess the Property to the Plaintiff. 33. The trespasses of the Defendant are a material annoyance and inconvenience to the Plaintiff. 34. The trespasses of the Defendant materially interfere with the Plaintiffs reasonable enjoyment and habitation of the Plaintiffs Property. 35. The Defendant's trespasses deny the Plaintiff of quiet and uninterrupted enjoyment of his Property. 36. The impact of Defendant's trespasses has infringed upon the Plaintiffs right to quiet and uninterrupted enjoyment of his Property. 37. The annoyance and unrest caused by the Defendant's trespasses onto the Property are an unnecessary burden which the Plaintiff should not be forced to endure on his own Property. 38. For all the above slated reasons, the trespasses of the Defendant are unlawful and unreasonable and have eaused the Plaintiff to be unable to, quietly and wilhout interruption, enjoy his Property. 39. The unreasonable and ongoing effects of Defendant's trespasses onto the Plaintiffs Property can be eliminated by the Defendant discontinuing his trespasses onto the Plaintiffs Property. 40. Despite demand and instruction orally, in writing and visually, the Defendant refuses to abide by the Plaintiffs instructions that the Defendant not trespass on his Property. WHEREFORE. the Plaintiff respectfully requests this Honorable Court enter judgment in favor of Plaintiff and against the Defendant in a nominal amount plus allorneys' fees, litigation expenses and costs of suit. COUNT III INJUNCTION 41. Paragraphs 1 through 41 are incorporated herein as though set forth at length. 42. The Plaintiff will prevail on the merits of his action in trespass against the Defendant. 43. The Plaintiff has suffered repeated trespasses and unauthorized photographing of his Property which has caused the Plaintiff to experience a considerable amount of mental anxiety and unrest, 44. Without the issuance of an injunction as requested by the Plaintiff, Plaintiff will suffer irreparable injury in that the Plaintiff cannot be compensated for the mental anxiety and unrest that he has heen caused hy the Defendant's actions, 45, Issuance of an injunction as requested hy the Plaintiff will nnt suhstantially, or even minimally harm the Defendant or any other individual. 46, The issuance nf an injunction as requested hy the Plaintiff will not adversely affect the public interest, health safety or welfare of the community. 47, The issuance of an injunction as requested hy the Plaintiff will provide for the maintenance of the status quo during the pendency of the above matter, WHEREFORE, the Plaintiff respectfully requests this Honorable Court to issue an injunction prohibiting the Defendant from: I. Entering Plaintiffs premises without a valid search warrant issued by a neutral and detached Magistrate based on probable cause; 2, Entering Plaintiffs premises without written instructions from a government or judicial ofticial specifically explaining the purpose of the Defendant's visit to the Property, whether the Defendant is acting in his official capacity as a Pennsylvania Constable and at whose direction he is performing his duties; 3. Photographing or attempting to photograph Plaintiffs Property from areas located inside or outside of the boundaries of Plaintiffs Property; and 4. Interfering with Plaintiffs quiet enjoyment of Plaintiffs Property in any way whatsoever, whether it be verbal. written or otherwise. Respectfully submitted, Jackson, Cavanagh & Stivale, P,C. I ufh etU/Cl.J Toni Lee Cavanagh, Esquire VERIFICATION I. Troy lIeulll. herehy verify thutlhe stlltel11enls setli,rth in Ihis ('ul11pluinture Irlle und correct to Ihe hest of my knowledge. inlonnution. and helieI'. I make Ihe statements therein subject to 18 Pa. C.S. 4904 regarding unsworn falsification to authorities and the pcnallies relating thereto. --.., '-..-:::. c:--.~~~ Troy ,- C.:; i: T~ -, t-.; (..~ ::-;-1 " ,~' . , , , , : ~ ... e - ) L:, ,-, ) , ;:... , - , - .-- '- U' 4'.1 , -' r"~ ':.-1