HomeMy WebLinkAbout99-05556,,
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HAMPDEN TOWNSHIP, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
VS. NO. 99-SS5Z EQUITY
TERRY LEININGER, CIVIL ACTION - EQUITY
Defendant
N 0 T I C E
You have been sued in court. If you 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 a 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
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
SNELBA , BRENN FfADI & :SPARE, P.C.
By
tt eys for Plaintiff
"W OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
TOWNSHIP OF HAMPDEN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
Vs. NO. 99-55516EQUITY
TERRY LEININGER, CIVIL ACTION - EQUITY
Defendant
COMPLAINT
AND NOW, comes Plaintiff, TOWNSHIP OF HAMPDEN, by its
Attorneys, Snelbaker, Brenneman & Spare, P.C., and avers the
following cause of action against Defendant:
1. Plaintiff is TOWNSHIP OF HAMPDEN, A municipal township
of the first-class having its official office at 230 South
Sporting Hill Road, Mechanicsburg, PA 17055, in the Township of
Hampden, Cumberland County, Pennsylvania.
2. Defendant is TERRY LEININGER, an adult individual, who
possesses a parcel of real estate located at 6384 Brandy Lane,
Mechanicsburg, PA 17055, in the Township of Hampden, Cumberland
County, Pennsylvania.
3. Defendant operates a motor vehicle repair business at
the real estate cited in paragraph 2 above (hereinafter called
"Subject Premises"), said business sometimes known as
"Leininger's Automotive Specialists".
4. The Subject Premises is subject to a certain land
development or site plan, a true copy of which is attached hereto
UW OFFICES marked "Exhibit All and incorporated herein by reference thereto
SNELBAKER.
BRENNEM (hereinafter called "Plan"), which Plan exists by reason of the
& SPARE E
Hampden Township Land Development and Subdivision ordinance
(hereinafter called "ordinance").
5. The Plan contains the following express restriction and
condition (hereinafter called "Condition"), which Condition was
imposed as a condition of approval of the Plan:
All vehicles which are being serviced or repaired and
which are left outside over 24 hours at the south west
building currently occupied by Leininger's Automotive,
shall be stored within the proposed area enclosed by
the 6 foot high fence with slats.
6. Defendant has actual knowledge of the Plan and the
foregoing Condition.
7. Over a period of several years and more recently on and
after September 2, 1999, Defendant did store or cause to be
stored various vehicles for service or repair outside (not
within) the fenced area shown on the Plan for more than 24 hours
in violation of said condition.
S. Defendant's actions and violation as averred above, have
been continuous in disregard of the Condition and in defiance of
Plaintiff's efforts to enforce the condition.
9. Plaintiff has instituted various penalty actions over
the years which have failed to deter Defendant's violation.
10. In addition to violation of the Condition per se,
Defendant's actions constitute violation of Section 901 of
Plaintiff's Land Development and Subdivision Ordinance.
uw OFFICES 11. Said Land Development and Subdivision Ordinance
SNELBAKER.
S; SPARE authorizes its enforcement by this action in equity. a1
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-2-
12. Plaintiff has no adequate remedy at law.
WHEREFORE, Plaintiff respectfully requests your Honorable
Court to:
A. Enjoin Defendant from further violation of the
Condition;
B. Order Defendant to remove vehicles from
outside the fenced-in area stored over 24 hours;
C. Order Defendant to place vehicles inside the
fenced-in area when stored on the premises over 24
hours;
D. Order Defendant to pay Plaintiff's
reasonable attorney's fees, expenses and
costs of this action; and
E. Order such other additional relief as may
be just and proper.
SNELB R, BRENN & SPARE, P.C.
By
d C. Snelbaker, Esquire
44 West Main Street
Mechanicsburg, PA 17055-0318
(717) 697-8528
Attorneys for Plaintiff
uw OFFICES
SNELBAKER.
BRENNEMAN
a SPARE
-3-
VERIFICATION
I, DARRELL L. McMILLAN, Director of Codes Enforcement in and
for the TOWNSHIP OF HAMPDEN, the Plaintiff herein, do hereby
verify and certify that I am authorized to make this verification
on behalf of Plaintiff and that the facts set forth in the
foregoing Complaint are true and correct to the best of my
knowledge, information and belief. I understand that any false
statements made in said Complaint are subject to the penalties of
18 Pa. C.S. $ 4904 relating to unsworn falsification to
authorities.
GJ7/??' ?--
C6 rm? ?P Al
Darrell L. McMillan
Director of Codes Enforcement
of Hampden Township
Dated: '504• 10 , 1999
uw OFFICES
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BRENNEMAN
@ SPARE
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HAMPDEN TOWNSHIP,
Plaintiff
VS.
TERRY LEININGER,
Defendant
AND NOW, this
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO.99•SM EQUITY
ORDER
day of
on consideration
of defendant Terry Leininger's preliminary objection:
(1) to the inclusion of scandalous and impertinent matter in plaintiff's complaint, it is
hereby ORDERED that paragraphs 8 and 9 of plaintiff's complaint are stricken;
(2) to the inclusion of a request for improper relief, it is hereby ORDERED that
Plaintiff's requests for attorney's fees and costs are striken;
(3) to strike off plaintiff's complaint for failure to conform to the verification
requirements of Pa. R.C.P. 1024 is GRANTED. Plaintiff is given
days from the date of the entry of this order to file an
amended complaint with a proper verification. Failure to so amend will result in
this Court entering an order dismissing the action.
By the Court:
J.
HAMPDEN TOWNSHIP,
Plaintiff
vs.
TERRY LEININGER,
Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
5556
NO.99-SM EQUITY
TO: Hampden Township, Plaintiff
And Richard C. Snelbaker, Esquire, Plaintiff's attorney
NOTICE
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S
COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A
JUDGMENT MAY BE ENTERED AGAINST YOU.
BRATIC & PORTKO
Stephe K. Portko, Esquire
101 South U.S. Route 15
Dillsburg, PA 17019
(717) 432-9706
Attorney I.D. #34538
Attorney for Defendant
HAMPDEN TOWNSHIP,
Plaintiff
VS.
TERRY LEININGER,
Defendant
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PA
NO. 99S552-EQUITY
DMNDANT'S PRELIMINARY OWE TION TO ELAINTIFFIS COMPLAIN
Defendant, Terry Leininger, by his undersigned counsel, preliminarily objects to
plaintiff's complaint pursuant to Pa. R.C.P. 1028(a)(2) as follows:
FAILURE TO CONFORM TO PA. R.C.P. 1024
1. Plaintiff filed a complaint against the defendant in this matter, alleging, inter alia, a
violation of Section 901 of plaintiffs Land Development and Subdivision Ordinance.
2. Plaintiff's ordinance requires the Township Manager to institute appropriate actions
in equity to enjoin violations.
3. The verification to plaintiff's complaint was not made by the Township Manager, but
rather was made by Darrell L. McMillan, Director of Codes Enforcement.
4. Pa. R.C.P. 1024(c) requires that:
The verification shall be made by one or more of the parties filing the pleading unless all
the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction
of the court and the verification of none of them can be obtained within the time allowed
for filing the pleading. In such cases, the verification may be made by any person having
sufficient knowledge or information and belief and shall set forth the source of his
information as to matters not stated upon his own knowledge and the reason why the
verification is not made by a party.
5. The verification to plaintiff's complaint was not taken by one of the plaintiffs, does not
state the reason why the verification is not or could not be taken by one of the plaintiffs,
and does not set forth the source of Darrell L. McMillen's information as to the matters
contained in the complaint.
6. Under Pa. R.C.P. 1028(a)(2), a party may preliminarily object by way of a motion to
strike off a pleading because of lack of conformity to rule of court.
7. The verification to plaintiff's complaint is defective under Rule 1024(c).
8. The verification being defective, plaintiff's complaint is not properly verified as
required of a pleading under Rule 1024(a), and must be stricken.
WHEREFORE, defendant respectfully requests that plaintiff's complaint be stricken.
INCLUSION OF SCANDALOUS AND IMPERTINENT MATTER
9. Plaintiff's complaint alleges an equity action to enjoin defendant from violating a
condition on a site plan.
10. Plaintiff's complaint alleges that defendant did store or cause to be stored various
vehicles for service or repair outside (not within) the fenced area shown on the Plan for
more than 24 hours in violation of said condition.
11. Paragraphs 8 and 9 of the complaint allege that defendant's actions have been in
defiance of plaintiff's efforts to enforce the condition and that plaintiff has instituted
various penalty actions over the years which have failed to deter defendant's violation.
12. Plaintiff fails to specify the types of actions or years in which the alleged occurrences
took place.
13. On March 25, 1999, this Honorable Court dismissed plaintiff's penalty action filed
against defendant in 1998 and docketed to N0.98-5171. Plaintiff did not appeal.
14. On August 9, 1999, District Justice Thomas A. Placey found in favor of defendant
and against plaintiff in three (3) civil complaints [penalty actions] docketed to Numbers
CV-0188-99, CV-0235-99 and CV-0241-99. Plaintiff did not appeal.
15. The allegations set forth in paragraphs 8 and 9 are irrelevant, immaterial and
inappropriate to the cause of action asserted in plaintiff's complaint against defendant, are
in violation of the pleading requirements of Pa. R.C.P. 1019 and, accordingly, are
impertinent.
WHEREFORE, defendant requests that paragraphs 8 and 9 of plaintiff's complaint be
stricken.
REQUEST FOR IMPROPER RELIEF.
16. Plaintiff commenced this equity action to enjoin Defendant's alleged unlawful use.
17. Plaintiff's equity complaint includes a request for attorney's fees and costs.
18. Attorney's fees and costs are not recoverable in an equity action to enjoin violations
of the municipality's ordinances. wn hjp of Maidencreek v Slut man, 642 A.2d 600,
603 (Pa.Cmwlth.1994)
19. Plaintiff's request for the award of attorney's fees and costs is not a sanction that
may be imposed by the court.
WHEREFORE, defendant requests that Plaintiff's demand for attorney's fees and
costs be striken.
Respectfully submitted,
S
Steph i K. Portko, Esquire 11345 8
101 South U.S. Route 15
Dillsburg, PA 17019
(717) 432-9706
Attorney for Defendant
VERIFICATION
I, Terry Leininger hereby acknowledge that I am
Defendant in the foregoing Preliminary Obiection to Complaint
that I have read the foregoing, and the facts stated therein
are true and correct to the best of my knowledge, information
and belief.
I understand that any false statements herein are
made subject to penalties of 18 Pa.C.S. Section 4904,
relating to unsworn falsification to authorities.
y Lei ger
Date: November 5, 1999
HAMPDEN TOWNSHIP, IN THE COURT OF COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY, PA
Vs. NO. 99-5552 CIVIL TERM
TERRY LEININGER, CIVIL ACTION - EQUITY
Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing DEFENDANT'S PRELIMINARY OJBECTION TO PLAINTIFF'S
COMPLAINT was provided by U.S. Mail, postage prepaid,
first class, to the following:
Richard C. Snelbaker, Esquire
SNELBAKER, BRENNEMAN & SPARE
44 West Main Street
Mechanicsburg, PA 17055
Date:??
BY:4
tephen K. Portko
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SHERIFF'S RETURN - REGULAR kq.
CASE NO: 1999-05556 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HAMPDEN TOWNSHIP
VS.
LEININGER TERRY
TIMOTHY REITZ , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within COMPLAINT - EQUITY was served
upon LEININGER TERRY the
defendant, at 1523:00 HOURS, on the 14th day of September
1999 at 6384 BRANDY LANE
MECHANICSBURG, PA 17055 CUMBERLAND
County, Pennsylvania, by handing to TERRY LEININGER
a true and attested copy of the COMPLAINT - EQUITY
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So answers:
Docketing 18.00
Service 6.20
Affidavit .00
Surcharge 8.00! oma?C ice; She i
$32.20-SN$LBAKER BRENNEMAN & SPARE
09/15/1999
by
P Y e
Sworn and subscribed 'o before me
this /St day of
19q_ A. D.
? o ono ary
HAMPDEN TOWNSHIP,
Plaintiff
VS.
TERRY LEININGER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-5556 EQUITY
CIVIL ACTION - EQUITY
ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS
AND NOW, comes Plaintiff, TOWNSHIP OF HAMPDEN, by its
Attorneys, Snelbaker, Brenneman & Spare, P.C., and responds to
Defendant's Preliminary Objections as follows:
A. PREFACE
Defendant has filed his Preliminary Objections with a
"Notice to Plead" suggesting that in some manner failure to plead
could cause a default on Plaintiff's part. While Plaintiff
believes no such result can result on the preliminary objections
as filed, it responds in order to avoid unnecessary controversy.
B. RESPONSES
Failure to Conform to Pa. R.C P 1024
1.-3. Any facts contained in paragraphs 1 through 3 are
admitted.
4.-8. Paragraphs 4 through 8 contain only conclusions of
law to which no response is required and all are deemed to be
LAW OFFICES denied.
SNELBAKER,
BRENNEMAN By way of further response and in order to fully advise
& SPARE
the Court of Plaintiff's position and to establish the frivolous,
dilatory, obdurate and vexatious nature of Defendant's objection,
Plaintiff further avers as follows:
A. The Township of Hampden is the appropriate party to
this action.
B. The commencement of this action was authorized and
directed by John E. Bradley, Jr., Township Manager, and said
Manager authorized and directed the Township's Director of
Codes Enforcement (Darrell L. McMillan) to make verification
to the Complaint, said official having the requisite
knowledge to make the verification.
C. The verification by the Township Manager to this
Answer is intended to specifically include the foregoing
averments.
WHEREFORE, Plaintiff respectfully requests your Honorable
Court to dismiss Defendant's Preliminary objections and to award
Plaintiff its attorney's fees and costs pursuant to 42 Pa. C.S.
$2503(7).
Inclusion of Scandalous and Impertinent Matter
9.-14. Any facts contained in paragraphs 9 through 14 are
admitted.
15. Paragraph 15 contains only conclusions of law to which
no response is required and all are deemed to be denied. I!
By way of further response and in order to fully advise
LAW OFFICES I the Court of Plaintiff's position and to establish the frivolous,
SNELRAKER,
BRENNEMAN -
& SPARE
-2-
dilatory, obdurate and vexatious nature of Defendant's objection,
Plaintiff further avers as follows:
A. In particular response to paragraph 12, Defendant,
as the object of enforcement, has actual knowledge of the
various previous enforcement actions and cannot in good
faith contend otherwise. Other enforcement actions are
enumerated in the Complaint filed in this court to No. 98-
5171 Civil Term, all of which are incorporated herein by
reference thereto. Said citation is set forth in paragraph
13 in Defendant's present preliminary objections
B. The actions cited by Defendant in paragraphs 13 and
14 are additional efforts to enforce the violations set
forth in the complaint and are significant as admissions
that Plaintiff has instituted actions at law which have not
been successful in abating Defendant's violations.
C. Plaintiff's reference to prior actions as now
supplemented by Defendant's admissions in paragraphs 13 and
14 are proof of the inadequacy of Plaintiff's remedy at law
as averred in paragraph 12 of the Complaint.
D. Judge Hess' opinion in No. 98-5171 Civil Term cited
above recognizes the remedy of abatement applicable to this
case, which remedy is being pursued in equity by virtue of
the applicable provisions of the Municipalities Planning
uw OFFICES Code, the relevant ordinance of Hampden Township and/or the
SNELOAKER,
BRENNEMAN common law principles of equity jurisdiction.
& SPARE
-3-
WHEREFORE, Plaintiff respectfully requests your Honorable
court to dismiss Defendant's Preliminary objections and to award
Plaintiff its attorney's fees and costs pursuant to 42 Pa. C.S.
$2503(7).
Reauest for Improper Relief
16.-17. Any facts contained in paragraphs 16 and 17 are
admitted.
18.-19. Paragraphs 18 and 19 contain only conclusions of
law to which no response is required and are all deemed to be
denied.
By way of further response and in order to fully advise
the Court of Plaintiff's position and to establish the frivolous,
dilatory, obdurate and vexatious nature of Defendant's objection,
Plaintiff further avers as follows:
A. Section 515.1(a) permits a municipality to "recover
damages" with necessarily includes the Plaintiff's cost of
enforcement.
B. The cost of enforcement includes Plaintiff's
attorney's fees incurred to abate the violation.
C. Plaintiff, as any party in a civil action, is
entitled to recover the costs of the action. There is no
authority to the contrary.
D. Included in the "costs" are docket costs of this
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
-4-
action and other costs allowed by the Court including, but
not limited to, those allowed under 42 Pa. C.S. 52503(7).
E. Even if it is determined that Plaintiff is not
entitled to its attorneys fees, its inclusion in its prayer
for relief is not an averment susceptible to striking the
entire Complaint and the Court may cause it to be
disregarded, whether by striking it from the prayer for
relief or by other means.
WHEREFORE, the Plaintiff respectfully requests your
Honorable Court to dismiss Defendant's Preliminary objections and
to award Plaintiff its attorney's fees and costs pursuant to 42
Pa. C.S. 52503(7).
BRENNEMAN & SPARE, P.C.
BY.
a?vrv I • JliC.1 LgllCL , Z, quire
44 West Main Street
Mechanicsburg, PA 17055-0318
Attorneys for Plaintiff
uw OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
-5-
VERIFICATION
I, JOHN E. BRADLEY, JR., Township Manager in and for the
Township of Hampden, the Plaintiff herein, do hereby verify and
certify that I am authorized by said Township to make this
verification on behalf of the Plaintiff and that the facts set
forth in the foregoing Answer to Defendant's P eliminarv
Objections are true and correct to the best of my knowledge,
information and belief. I understand that any false statements
made herein are subject to the practices of 18 Pa. C.S. §4904
relating to unsworn falsification to authorities.
V Ai ohn E Bradley, Jr.
Towns ' p Manager
Dated: November 12, 1999
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
CERTIFICATE OF SERVICE
I hereby certify that I am this date serving a true and
correct copy of the within Answer to Defendant's Preliminary
Objections upon the Attorney for the Defendant by sending by same
first-class mail, postage paid addressed as follows:
Stephen K. Portko, Esquire
101 Office Center, Suite A
101 South U.S. 15
Dillsburg, PA 17019
SNELBAK , B & SPARE, P.C.
By
R and Esqu re
44 West Main Street
Mechanicsburg, PA 17055-0318
(717) 697-8528
Attorneys for Plaintiff
Dated: November /2, 1999
LAW OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
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HAMPDEN TOWNSHIP IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
CIVIL ACTION - EQUITY
VS.
TERRY LEININGER, NO. 99-5556 EQUITY
Defendant
PRAECIPE TO STRIKE JUDGMENT BY DEFAULT
To: Prothonotary of Cumberland County
Kindly strike the judgment by default entered against the
Defendant above named on or about November 9, 1999.
SNELB R, BRENNEMAN & SPARE, P.C.
BY
C. Snelbaker, Esquire
44 West Main Street
Mechanicsburg, PA 17055-0318
(717) 697-8528
Attorneys for Plaintiff
Dated: November A, 1999
LAW OFFICES
$NELBAKER.
BRENNEMAN
& SPARE
CERTIFICATE OF SERVICE
I hereby certify that I am this date serving a true and
correct copy of the within Praecipe to Strike Judgment by Default
upon the Attorney for the Defendant by sending by same first-
class mail, postage paid addressed as follows:
Stephen K. Portko, Esquire
101 Office Center, Suite A
101 South U.S. 15
Dillsburg, PA 17019
SNELBAK Qt N & SPARE, P.C.
By
?Rfahard C. Snelbaker, Esquire
4 West Main Street
Mechanicsburg, PA 17055-0318
(717) 697-8528
Attorneys for Plaintiff
Dated: November 12, 1999
LAW OFFICES
SNELEAKER.
BRENNEMAN
& SPARE
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE
(entire caption must be stated in full)
HAMPDEN TOWNSHIP,
(Plaintiff)
VS.
TERRY LEININGER,
(Defrsdant)
No. 99-5556 Civil Equity 19
1. State natter to be argued (i.e., plaintiff's motion for new trial, defendant's
demurrer to complaint, etc.):
Defendant's Preliminary Objections to Plaintiff's Complaint
2. Identify counsel who will argue case:
(a) for plaintiff:
Address:
(b) for defendant:
Address:
Richard C. Snelbaker, Esq.
Snelbaker, Brenneman & Spare, P. C.
44 West Main Street
Mechanicsburg, PA 17055-0318
Stephen K. Portko, Esquire
101 South U. S. Route 15
Dillsburg, PA 17019
3. I will notify all parties in writing within two days that this case has
been listed for argument.
4. Argun ent Court Date: December 8, 1999
4SNELBB , 4N & SPARE, P. C.
Dated: November 12, 1999 y for Plaintiff
CV
LLI:..
:
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tee:
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HAMPDEN TOWNSHIP
Plaintiff,
Vs.
TERRY LEININGER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
5
NO. 99-55;(6 EQUITY
PRAECIPE FOR JUDGMENT BY DEFAULT
To: Prothonotary of Cumberland County
Enter judgment by default against the Defendant above named
pursuant to Pa. R.C.P. 1037(b) for failure to file a pleading to
the complaint heretofore filed. Attached hereto is a copy of
"Important Notice" dated October 28, 1999, sent the same date to
Defendant at the address indicated thereon by first-class mail
postage paid.
SNEL , BRENN^ N & SPARE, P.C.
BY ??
Richard C. Snelbaker, Esquire
West Main Street
Mechanicsburg, PA 17055-0318
(717) 697-8528
Attorneys for Plaintiff
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
Dated: November 9, 1999
HAMPDEN TOWNSHIP IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
CIVIL ACTION - EQUITY
Vs.
TERRY LEININGER, NO. 99-5536 EQUITY
Defendant
Terry Leininger
Leininger Automotive specialists
6384 Brandy Lane
Mechanicsburg, PA 17055
DATE OF NOTICE: October 28, 1999
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE
IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS
TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT
WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A
JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING
AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT
RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT
ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,
GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT
WHERE YOU CAN GET LEGAL HELP:
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3
SNE A RE & SPARE, P.C.
B
C. Snelbaker, Esquire
OPFICES West Main Street
ER• Mechanicsburg, PA 17055-0
SN ELBAKER
BRENNEMAN (717) 697-8528
& SPARE Attorneys for Plaintiff
u1 n 65 cad.; -- ,
T l,: Cn
HAMPDEN TOWNSHIP,
PLAINTIFF
V.
TERRY LEININGER,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
99-5556 EQUITY TERM
BEFORE BAYLEY J. AND GUIDO J.
ORDER OF COURT
AND NOW, this p day of December, 1999, the preliminary
objections of defendant to plaintiffs complaint, ARE DISMISSED.
By
Richard C. Snelbaker, Esquire
For Plaintiff
B. Bayley, J.
Stephen K. Portko, Esquire
For Defendant
:saa
`c- _
:J
HAMPDEN TOWNSHIP,
Plaintiff
VS.
TERRY LEININGER,
Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
: NO. 99-5556 EQUITY
TO: Hampden Township, Plaintiff
And Richard C. Snelbaker, Esquire, Plaintiff's attorney
TI
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED DEFENDANT'S ANSWER WITH NEW MATTER AND
COUNTERCLAIM TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS
FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST
YOU.
BRATIC & PORTKO
Steph K. Portko, Esquire
101 South U.S. Route 15
Dillsburg, PA 17019
(717) 432-9706
Attorney I.D. #34538
Attorney for Defendant
HAMPDEN TOWNSHIP,
Plaintiff
VS.
TERRY LEININGER,
Defendant
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PA
NO. 99-5556 EQUITY
CIVILACTION -- EQUITY
DEFENDANT'S ANSWER WITH NEW MATTER & QUNT R AIM
1. Admitted.
2. Admitted.
3. Admitted.
4. Denied. The allegations of paragraph 4 of the complaint are legal conclusions to
which no response is required. To the extent an answer may be appropriate, these
allegations are denied. After reasonable investigation, Defendant is without knowledge
or information sufficient to form a belief as to the truth or falsity of the averment
contained in paragraph 4 of the complaint and therefore denies the allegations thereof.
Strict proof will be demanded at time of trial if the same be material. By way of further
answer, the document attached to plaintiff's complaint as Exhibit "A" states that the Plan
is "approved as built", thus, this document has no relevance in this matter or bearing upon
restrictions of use.
5. Denied. The allegations of paragraph 5 of the complaint are legal conclusions to
which no response is required. To the extent an answer may be appropriate, these
allegations are denied. After reasonable investigation, Defendant is without knowledge
or information sufficient to form a belief as to the truth or falsity of the averment
contained in paragraph 5 of the complaint and therefore denies the allegations thereof.
Strict proof will be demanded at time of trial if the same be material. By way of further
answer, the condition does not serve a public purpose related to the land development and
subdivision ordinance, the condition was illegally imposed after the fact and plaintiff's
complaint is an exercise in cleverness and imagination.
6. Denied. On the contrary, Defendant's knowledge is limited to the unsubstantiated
claims made by plaintiff in their pursuit to enforce a bogus claim and an inequitable
remedy.
7. Denied. The allegations of paragraph 7 of the complaint are legal conclusions to
which no response is required. To the extent an answer may be appropriate, these
allegations are denied. After reasonable investigation, Defendant is without knowledge
or information sufficient to form a belief as to the truth or falsity of the averment
contained in paragraph 7 of the complaint and therefore denies the allegations thereof.
Strict proof will be demanded at time of trial if the same be material.
8. Denied. To the contrary, all of Defendant's actions are justified while plaintiff's
efforts to enforce the alleged condition lack any substantive ground and are
unconstitutional.
9. Admitted in part and denied in part. Admitted that plaintiff instituted various
penalty actions. Denied that Defendant has violated any law or that the alleged condition
is enforceable. On the contrary, plaintiff uses the legal process as a tactical weapon to
coerce a desired result that is not the legitimate object of the process in that plaintiff's
imposition of the condition is a misuse of their ordinance and violates defendant's
constitutional rights. Further, plaintiff attempts to regulate zoning matters through their
land development and subdivision ordinance in violation of the Pennsylvania
Municipalities Planning Code [hereinafter referred to as "MPC"] or law.
10. Denied. The allegations of paragraph 10 of the complaint are legal conclusions to
which no response is required. To the extent an answer may be appropriate, these
allegations are denied. Plaintiff fails to demonstrate the specific violation or the manner
in which Section 901 is even applicable.
11. Denied. The allegations of paragraph 11 of the complaint are legal conclusions to
which no response is required. To the extent an answer may be appropriate, these
allegations are denied.
12. Denied. The allegations of paragraph 12 of the complaint are legal conclusions to
which no response is required. To the extent an answer may be appropriate, these
allegations are denied.
WHEREFORE, Defendant respectfully request that Plaintiff's action be dismissed,
and that judgment be entered in favor of defendant with attorneys fees and costs, and that
defendant be awarded any other relief that this Honorable Court deems appropriate.
NEW MATTER
13. Defendant has been leasing the subject premises since 1989.
14. Defendant has an occupancy permit to use the subject premises.
15. Defendant's business is located in an I-G [Industrial - General] District and this
district allows as "Permitted Uses" such activities as "motor vehicle body shop, motor
vehicle repair garage, motor vehicle service station, motor vehicle wrecking, etc."
16. Defendant's business use complies with all sections of plaintiff's zoning ordinance.
17. Defendants use of the property is a valid preexisting use and predates Plaintiff's
efforts to impose the condition in question.
18. Defendant has a vested right to store vehicles at any location upon the subject
premises designated for parking.
19. Defendant has a vested right to store vehicles for any length of time upon the
subject premises.
20. Plaintiff's alleged condition fails to further any governmental purpose.
20. Plaintiff's alleged condition does not serve any public purpose related to their
ordinances.
22. Plaintiff's alleged condition does not relate to any section of plaintiff's ordinances.
23. Plaintiff's alleged condition is not a condition ordinarily imposed under the land
development and subdivision ordinance.
24. Plaintiffs alleged condition is invalid due to procedural irregularities in the
approval of the plan referred to in plaintiffs complaint.
25. Plaintiffs imposition of the alleged condition is irrational, nonsensical and absurd.
25. Plaintiffs imposition of the alleged condition violates the taking clause of the Fifth
Amendment as incorporated against the States by the Fourteenth Amendment.
26. Plaintiffs attempt to impose the alleged condition after the fact is arbitrary and
capricious in that plaintiff has ignored procedural requirements and then attempted to
enforce the condition in an unlawful manner.
27. Plaintiffs officers, agents or employees were not authorized under plaintiffs
ordinances or the MPC to impose the alleged condition.
28. Plaintiffs actions violate the equal protection clause because the defendant was
treated differently than similarly situated persons.
29. The imposition of the alleged condition is irrational and is not a legitimate exercise
of police power because it does not advance any governmental purpose but is overly
burdensome to defendant.
30. Plaintiff conduct violates substantive due process because plaintiff's imposition and
enforcement of the alleged condition is arbitrary and capricious.
[ILLEGALITY]
31. Plaintiff's complaint seeks to enjoin defendant from parking repair vehicles outside
the fenced area for more than a 24 hour period on which parcel of land defendant has
been operating a business since at least 1989 when no condition or other limitation was in
effect regarding the overnight parking of repair vehicles.
32. Plaintiff's complaint asserts that the Township is entitled to enjoin defendant as a
result of the condition on a plan [hat restricts such parking for more than a 24 hour
period.
33. The condition noted on said Plan was obtained through and as a result of an
improper and illegal proceeding and/or decision to deny the owner's application for land
development in 1991 which decision was made in violation of plaintiff's ordinances and
the MPC in that plaintiff failed to observe the applicable procedures to follow when
rendering a decision on an application for land development or subdivision.
34. Because the condition imposed upon the Plan on which plaintiff's complaint is
based was placed there illegally, plaintiff's claim is barred by the doctrine of illegality.
[VESTED RIGHT/PRIVILEGE]
35. Plaintiff's complaint seeks relief from the court on the claim that defendant has
violated a condition on a plan that restricts parking outside over 24 hours.
36. Defendant's conduct violates no section of plaintiff's Zoning Ordinance of Land
Development and Subdivision Ordinance.
37. Defendant's conduct in storing and/or parking vehicles over a 24 hour period took
place prior to plaintiff's attempts to impose the condition upon the owner's land
development plan. Defendant's activities were and are protected by the privilege of his
zoning and/or vested property rights which privilege and/or vested rights bar plaintiff's
instant action.
[ISSUE PRECLUSION]
38. The matter at issue in this case regarding the award of attorney's fees and costs was
previously decided by the Court of Common Pleas of Cumberland County in the action
brought by plaintiff against defendant captioned HAMPDEN TOWNSHIP vs. TERRY
LEININGER and docketed as NO. 98-5171.
39. On March 25, 1999, the Cumberland County Court of Common Pleas entered
judgment in favor of defendant in this previous action. Copies of plaintiff's complaint
and the March 25, 1999 order of the Court in the previous action are attached as Exhibit
"1". No appeal was taken by plaintiff.
40. Plaintiff's instant action against defendant for the award of attorneys fees is
accordingly barred by the doctrine of res judicata and/or issue preclusion.
[FAILURE TO JOIN INDISPENSABLE PARTY]
41. Plaintiff alleges in their complaint a restrictive condition on a Plan allegedly
submitted by the owner of the subject premises.
42. Plaintiff's complaint seeks to permanently enforce this condition against the subject
premises.
43. The owner of the subject premises has a right or interest relating to the underlying
claims.
44. The owner of the subject premises is an indispensable party to the resolution of this
dispute.
45. Plaintiff has failed to join the owner as a party to this action.
46. Plaintiff's action against defendant is barred in whole or in party, by plaintiff s
failure to join an indispensable party, to wit, the owner of the subject premises.
[EQUITABLE DEFENSES]
47. Plaintiff's claims are barred, in whole or in part, by the Doctrine of Laches.
48. Plaintiff's claims are barred, in whole or in part, by the Doctrine of Unclean Hands.
49. Plaintiff's claims are barred, in whole or in part, by plaintiff's failure to comply
with conditions mandated by the MPC for approval of Plans and/or attachment of
conditions.
50. Plaintiff has failed to state claims upon which relief may be granted.
51. Plaintiff's conduct at all times relevant hereto demonstrates a wilfull intent to
violate defendant's due process rights and, moreover, plaintiff's enforcement is
unconstitutional.
WHEREFORE, Defendant respectfully request that Plaintiff's action be dismissed,
and that judgment be entered in favor of defendant with attorneys fees and costs, and that
defendant be awarded any other relief that this Honorable Court deems appropriate.
COUNTERCLAIM
Tortiou Interf r Ilca with Contract
52. Defendant incorporates by reference the allegations in paragraphs 1 through 51 of
his Answer and New Matter.
53. On or about June of 1989 defendant entered into a lease agreement with the owner
of the subject premises to lease the building and adjacent parking area for a motor vehicle
repair shop.
54. Plaintiff's officers, agents or employees contacted owner in an effort to convince
owner to restrict defendant's outside storage of the property
55. To that end, plaintiffs, its officers, agents or employees, knowingly and
maliciously made false statements to owner relating to the requirements of their
ordinance by stating that the owner needed to submit an application for land development
and that such plan needed to include a provision staling that defendant could not leave
vehicles being serviced or repaired outside a fenced area for more than 24 hours.
56. Thereafter, plaintiff refused to approve owner's land development plan unless it
contained a note about the aforesaid limited parking of vehicles on defendant's lot.
57. At all times, plaintiff knew or should have known that such condition did not serve
any public purpose related to the requirements under plaintiffs Land Development and
Subdivision Ordinance and, further, plaintiff knew or should have known that this action
deprived defendant of his property rights without due process of law.
58. Plaintiff made false and malicious statements with the intent to deprive defendant
of his property rights and valid preexisting business use of the subject premises.
59. As a result of plaintiffs actions, defendant has suffered loss of trade in his business
due to the illegal, unnecessary and burdensome condition and plaintiff arbitrary and
capricious conduct.
WHEREFORE, defendant demands judgment against plaintiff in an amount in excess
of $20,000.00 plus interest and costs of suit.
Wrongful Use and/or Abuse of Civil Process
60. Defendant incorporates by reference the allegations in paragraphs 1 through 51 of
his Answer and New Matter.
61. In disregard of this Court's order dated March 25, 1999, Plaintiff instituted three (3)
civil enforcement proceedings against defendant seeking sanctions under the MPC.
62. Defendant prevailed against plaintiff's three enforcement actions when the
magisterial court found in favor of defendant and against plaintiff on August 9, 1999. No
appeal was taken by plaintiff.
63. In addition to the allegations set forth in defendant's New Matter, plaintiff employs
the within action for an improper purpose and not the purpose which it is intended by law
to effect, as follows:
A. Contrary to the allegations contained in plaintiff's Complaint, plaintiff failed to
follow the procedures required by plaintiff's Land Development and
Subdivision Ordinance and the MPC regarding applications for land
development or subdivision;
B. The condition imposed by plaintiff is irrational and serves no public purpose
related to land Development or subdivision;
C. Plaintiff imposed the alleged condition after the fact and in violation of
defendant's due process rights;
D. Plaintiffs improper use of process is for the unlawful object of attempting to
coerce Defendant to comply with a use restriction that serves no public purpose
and is not otherwise regulated or prohibited by any ordinance, statute or law.
64. Plaintiff has deliberately engaged in a course of conduct to fabricate its claim
against defendant and to fraudulently seek sanctions that are not otherwise permitted by
law.
65. From such action can be inferred an intent to use legal process for the sole purpose
of harassing defendant and disparaging his business.
66. As a result of plaintiff's conduct, defendant will waste valuable time and resources
in the defense of this matter while plaintiff has unlimited resources and is accountable to
no one.
67. Plaintiff uses the legal process as a tactical weapon to coerce a desired result that is
not the legitimate object of the process in that plaintiff's imposition of the condition is a
misuse of their ordinance and violates defendant's constitutional rights.
68. Further, plaintiff's three enforcement actions filed on 5/11/99, 6/16/99 and 6/21/99
before District Justice Placey in violation of the Court's Order dated March 25, 1999 was
a malicious use of process in that the judgment rendered by District Justice Placey
referred to the Court's Order dated March 25, 1999 and accordingly found in favor of
defendant. A copy of said decision is attached hereto as Exhibit "2".
WHEREFORE, Defendant respectfully demands that judgment be entered in his
favor and against plaintiff for punitive damages, in an amount to be set by the Court,
together with reasonable attorney's fees and costs of suit.
BRATIC & PORTKO
By
Stephen C. Portko, Esquire
101 South U.S. Route 15
Dillsburg, PA 17109
(717) 432-9706
Attorneys for Defendant
10
VERIFICATION
I, Terry Leininger hereby acknowledge that I am
Defendant in the foregoing DEFENDANT'S ANSWER WITH NEW MATTER
AND COUNTERCLAIM to Plaintiff's Complaint, that I have read
the foregoing, and the facts stated therein are true and
correct to the best of my knowledge, information and belief.
I understand that any false statements herein are
made subject to penalties of 18 Pa.C.S. Section 4904,
relating to unsworn falsification Zerry tho ities.
ininger
Date: December 30, 1999
HAMPDEN TOWNSHIP,
Plaintiff
VS.
TERRY LEININGER,
Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 99-5556 CIVIL TERM
CIVIL ACTION - EQUITY
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing DEFENDANT'S ANSWER WITH NEW MATTER & COUNTERCLAIM
to Plaintiff's Complaint was provided by U.S. Mail,
postage prepaid, first class, to the following:
Richard C. Snelbaker, Esquire
SNELBAKER, BRENNEMA4 & SPARE
44 West Main Street
Mechanicsburg, PA 17055
Date:
BY:
Stephen K. Portko
Exhibit
?'sv
l?
IIAMPDEN TOWNSHIP, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMI)ERLAND COUNTY, PENNSYLVANIA
VS. 98-5171 CIVIL
TERRY LEININOER,
Defendant CIVIL ACTION - LAW
IN RE: PRELIMINARY OBJECTIONS OF Tl-IE DEFENDANT
BEFORE BAYI. Y HESS AND Of R I
ORDER
AND NOW, this 2 ' day of March, 1999, for the reasons set forth in our opinion
filed of even date herewith, the preliminary objections of the defendant are SUSTAINED and the
plaintiff's complaint DISMISSED.
BY THE COURT,
Richard C. Snelbaker, Esquire
For the Plaintiff
Stephen K. Portko, Esquire
For the Defendant
Ann
HAMPDEN TOWNSHIP,
Plaintiff
VS.
TERRY LEININGER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 98-5171 CIVIL
CIVIL, ACTION - LAW
This matter is before the court on (lie preliminary objections of the defendant, Terry
Leininger, to the complaint of the plaintiff, Hampden Township. Based on the following
discussion, we sustain the defendant's first preliminary objection and dismiss the plaintiffs
complaint for failure to state a cause of action. We need not, therefore, address the defendant's
second preliminary objection.
Defendant operates a motor vehicle repair business in Hampden Township. The
Township approved the operation of the business via a land development plan submitted by
Linden R. Gates, the defendant's landlord, which plan contained the following condition:
All vehicles which are being serviced or repaired
and which are left outside over 24 hours at the south
west building, currently occupied by Leininger's
Automotive, shall be stored within the proposed
area enclosed by the 6 foot high fence with slats.
Plaintiffs Complaint, p.2 para. 5.
Plaintiff brought a civil enforcement action against the defendant for alleged violations of
the specific condition of the land development plan before the appropriate District Justice.
Judgment was rendered in favor of tine plaintiff for $ 1000.00 and costs for two violations and
98.5171 CIVIL
$500.00 per day for each day's violation effective August 6, 1998.
The defendant appealed the judgment and on September 23, 1998, plaintiff, asserting
authority under Section 515.3 of the Municipal ilies Planning Code, 53 P.S. 10515.3 (MPC), filed
a complaint alleging that the defendant failed to comply with the condition of the plan.
Defendant filed preliminary objections to plnintiffs complaint asserting that it failed to state a
cause of action under Section 515.3 of the MPC, and in the alternative, that it failed to conform
to the requirements of the statute.
Plaintiff argues that inasmuch as the defendant violated a condition of an approved land
development plan, it is authorized by the MPC to seek monetary relief from the defendant. We
believe plaintiffs argument, that Section 515.3 allows a municipality to seek specific damages of
$500.00 when a land development" has been violated, is flawed.
While land development plans are authorized tinder the MPC and Article V of the statute
enables municipalities to enact ordinances, it does not necessarily follow that the plan is
enforceable under Section 515.3. Section 515.3 specifically states, in pertinent part, as follows:
(a) Any person, pnrtnership or corporation who or
which has violnied the provisions of any subdivision
or land development ordinance enacted under this
act or prior enabling laws shall, upon being found
liable therefore in a civil enforcement proceeding
commenced by a municipality, pay a judgment of
not more than $500 plus all court costs, including
reasonable attorney fees incurred by the
municipality as a result thereof.
53 P.S. Section 10515.3 (emphasis added).
98-5171 CIVIL
in determining that the violation of a condition of a plan does not equate to the violation
of an ordinance, we resort to well-established principles of construction. The meaning of the
statute is determined first by asking if it is clear and unambiguous and, if so, reading its
provisions in accordance with their plain meaning and common usage. Only when a statute is
unclear should the court attempt to ascertain the intent of the legislature. Com. v_ Bell, 512 Pa.
334, 340, 516 A.2d 1172, 1175 (1986); See nlso I Pa.C.S. § 1921 (b). The Supreme Court has
noted that the ultimate principle of statutory interpretation must be that every word in the statute
was used by the legislature for a reason and not to be considered surplusage. Fisher v. De"
Public Welfare, 509 Pa. 164, 169, 501 A.2d 617, 619-20 (1985). It is a well-established principle
that the plain words of a statute may not be disregarded under the pretext of pursuing a perceived
spirit of the statute. Borough Y. Pa. Labor Relations Board, 692 A.2d 253 (Pa. Commw. Ct.
1997). Here, the language of the statute is clear in that the legislature used the term "subdivision
or land development ordinance" when referring to what must be violated in order to prompt the
enforcement remedies under Section 515.3. Therefore, we will not look behind the unambiguous
language of the statute and apply the statute to a violation of a land development pip.
Our conclusion finds support in the limited case law available on this issue. In Com. v.
Marc 1S, the defendants failed to comply with conditions in the approved building permit and site
plan and later failed to comply with an enforcement notice demanding that the conditions be
fulfilled. 690 A.2d 842, 845 (Pa. Commw. C(. 1997). The court authorized the filing of a
complaint for money damages pursuant to Section 617.2 of the MPC, which utilizes language
very similar to that of Section 515.3. The court had no difficulty in allowing the complaint to
98-5171 CIVIL
proceed due to the existence of a township ordinance that makes "any person who constructs a
building in violation of an approved permit or plan ... liable for fines and penalties not exceeding
S 1000 for each day of the violation." hL at 845.46. Therefore, although the Marcus court
allowed the plaintiff to seek monetary damages in that case, our facts are distinguishable in that
plaintiff can point to no ordinance that has been violated.
Our holding does not foreclose the possibility of relief. Section 515.1 of the
Municipalities Planning Code provides expressly that actions by law or in equity may be
instituted to "abate violations." 53 P.S. 10515.I(a). In order to invoke the remedies sought in
this case, however, an ordinance must have been violated. This is clearly not the case here.
AND NOW, this z r ? clay of March, 1999, for the reasons set forth in our opinion
filed of even date herewith, the preliminary objections of the defendant are SUSTAINED and the
plaintiff's complaint DISMISSED.
Richard C. Snelbaker, Esquire
For the Plaintiff
Stephen K. Portko, Esquire
For the Defendant
Am
4
BY THE COURT,
HAMPDEN TOWNSHIP,
PLAINTIFF
V.
TERRY LEININOER,
DEFENDANT
Bayley, J., concurring: -
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
98-5171 CIVIL TERM
I write separately because I believe that the reasoning in Commonwealth v.
Marcus, 690 A.2d 842 (Pa. Commw. 1997), mandates that plaintiff's complaint must
be dismissed. In Marcus, the landowner submitted an application to Abington
Township in Montgomery County for a building permit to construct a single-family
dwelling. Attached to the site plan were fourteen grading and erosion measures. The
Township approved the application and the site plan subject to the grading and
erosion measures. A temporary certificate of occupancy was issued that set four
items that had to be completed pursuant to the conditions of the approval of the
application and site plan. When the Marcuses did not comply with those conditions
the Township issued a citation for violating its zoning ordinance for constructing a
building in violation of an approved permit or plan. The ordinance was enacted
pursuant to the Pennsylvania Municipalities Planning Code (MPC), at 53 P.S. Section
10817, which provides:
(a) Any person, partnership or corporation who or which has
violated or permitted the violation of the provisions of any zoning
ordinance enacted under this act or prior enabling taws shall, upon
being found liable therefor in a civil enforcement proceeding
commenced by a municipality, pay a judgment of not more than $500
plus all court costs, including reasonable attorney fees incurred by a
municipality as a result thereof. (Emphasis added.)
The Marcuses were convicted before a District Justice and fined $1,000 and
costs. On appeal, the trial court found that the Marcuses had failed to comply with
the conditions of the site plan in violation of the Township zoning ordinance and
imposed a fine of $3,900: $1,000 for the first day of violation plus $100 for each
additional day of the violation. On appeal to the Commonwealth Court, the order of
the trial court was affirmed on the basis that the evidence supported a violation of the
Township zoning ordinance that required that all work must conform to the approved
building permit and site plan.
In the case sub udice, Hampden Township avers in its complaint:
Section 515.3 of the Pennsylvania Municipalities Planning
Code (53 P.S. § 10515.3) is authority for seeking judgment herein
against Defendant for $500.00 for each day's violation plus all court
costs, including Plaintiff's reasonable attorney's fees Incurred in these
proceedings. (Emphasis added.)
The MPC at 53 P.S. Section 10515.3(a) tracks the same language used in Section
617.
Any person partnership or corporation who or which has violated
the provisions of any subdivision or land development ordinance
enacted under this act or prior enabling laws shall, upon being found
liable therefor in a civil enforcement proceeding commenced by a
municipality, pay a judgment of not more than $500 plus all court costs,
including reasonable attorney fees Incurred by the municipality as a
result thereof. (Emphasis added.)
Unlike the facts in Marcus where the Township had an ordinance that
prescribed penalties for a violation of an approved permit or plan as allowed by
Section 617 of the MPC, Hampden Township acknowledges that it does not have an
ordinance as allowed by Section 513.3(x) of the MPC that prescribes penalties for
-2-
failure to comply with the conditions in a land development plan. Therefore, because
the Township has not alleged that defendant has violated the provisions of a
Township ordinance, Section 515.3 of the MPC Is not authority for Independently
seeking a penalty against defendant for an alleged violation of the conditions set forth
in a land development plan.
Oler, J., dissents
-3-
HAMPDEN TOWNSHIP, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
VS. NO. 98-5171 CIVIL TERM
TERRY LEININGER, CIVIL ACTION - LAW
Defendant
You have been sued in court. If you wish to defend against
the clcim3 cat 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 :n d filing in writing with a court your defenses or
objectionto 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
claimnoticeorfor any
thetPlaintiff. You may lose other
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
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
SNELBA R BRENN^N?N & SPARE, P.C.
By
t orneys for Plaint ff
4w arnC[6
SNELBAKER.
BRENNEMAN
a SPARE
TRUE, Copy rfln14 AECOAD
In Testimony ;Thereof, 1 hero unto set my hand
and the 50,11 of safd Court at Cariisle, pa.
rhis_a day of ` Ig
I t nn (fit A ^?i
Prothonotary
t
HAMPDEN TOWNSHIP,
Plaintiff
VS.
TERRY LEININGER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-5171 CIVIL TERM
CIVIL ACTION - LAW
AND NOW, comes Plaintiff, HAMPDEN TOWNSHIP, by its
Attorneys, Snelbaker, Brenneman & Spare, P.C., and avers the
following cause of action against Defendant:
1. Plaintiff is HAMPDEN TOWNSHIP, a municipal township of
the first-class having its official office at 230 South Sporting
Hill Road, Mechanicsburg, PA 17055, in the Township of Hampden,
Cumberland County, Pennsylvania.
2. Defendant is TERRY LEININGER, an adult individual, who
possesses a parcel of real estate located at 6384 Brandy Lane,
Mechanicsburg, PA 17055, in the Township of Hampden, Cumberland
County, Pennsylvania.
3. Defendant operates a motor vehicle repair business at
the real estate cited in paragraph 2 above (hereinafter called
"Subject Premises"), said business sometimes known as
"Leininger's Automotive Specialists".
4. The Subject Premises is subject to a certain land
development or site plan, a true copy of which is attached hereto
LAW o•"Ot• II (marked "Exhibit All and incorporated herein by reference thereto
$NELBAKER.
BRENNEMAN
Q SPARE ARF hereinafter called "Plan") y
, which Plan exists by reason of the
Hampden Township Land Development and Subdivision ordinance
(hereinafter called "Ordinance").
5. The Plan contains the following express restriction and
condition (hereinafter called "Condition"), which Condition was
imposed as a condition of approval of the Plan:
All vehicles which are being serviced or repaired and
which are left outside over 24 hours at the south west
building currently occupied by Leininger's Automotive,
shall be stored within the proposed area enclosed by
the 6 foot high fence with slats.
6. Defendant has actual knowledge of the Plan and the
foregoing Condition, having been held liable on the same
violation as averred herein in prior enforcement proceedings
instituted by Plaintiff in the District Justice Court in District
09-3-04 as contained in the following docketed matters:
CV-0000445-95
CV-0000168-96
CV-0000097-97
7. In violation of said condition, Defendant did on and
after May 5, 7, and 11, 1998, and June 15 and 16, 1998, store or
cause to be stored various vehicles for service or repair outside
(not within) the fenced area shown on the Plan for more than 24
hours.
8. On June 16, 1998, Plaintiff instituted enforcement
proceedings against Defendant before the District Justice in
District 09-3-04 by civil. Complaint docketed to No. CV-0000311-
uw orneee 98
SNELBAKER,
BRENNEMAN
II 9. The case instituted as averred in paragraph 8 above came
e SPARE
to a hearing on August 6, 1998. Defendant failed to appear.
-2-
i
Plaintiff proceeded with its proof in the hearing before District
Justice Placey.
10. Defendant continued to be in violation of the Ordinance
and Condition on August 4 and 5, 1998.
11. Based upon the evidence at the hearing, the District
Justice entered Judgment on August 6, 1998, in favor of Plaintiff)
and against Defendant in the amount of $1,000.00 (two violations
of $500.00 each) with costs of $39.50, plus $500 per day for each
day's violation effective August 6, 1998, thereafter until
compliance occurred, a true copy of the Notice of Judgment being
attached hereto marked "Exhibit B" and incorporated herein by
reference thereto.
12. Defendant came into compliance on or about August 18,
1998.
13. Defendant appealed from the judgment cited in paragraph
it hereinabove. This complaint is filed in response to the
Notice of Appeal and the Rule to file Complaint issued by this
Court on September 4, 1998, and received by Plaintiff on
September 9, 1998.
14. Defendant's conduct as averred in paragraphs 7 and 10
hereinabove constitutes a violation of Plaintiff's Ordinance.
15. Section 515.3 of the Pennsylvania Municipalities
LAW OFFICES
SNELEAKER•
BRENNEMAN
6 SPARE
Planning Code (53 P.S. S 10515.3) is authority for seeking
judgment herein against Defendant for $500.00 for each day's
violation plus all court costs, including Plaintiff's reasonable
attorney's fees incurred in these proceedings.
-3-
I
WHEREFORE, Plaintiff requests your Honorable Court to enter
judgment in favor of Plaintiff and against Defendant for: f
(a) The sum of $7,000.00, based upon the
statutory amount of Five Hundred ($500.00) Dollars per
day for each day of violation as follows:
(1) $500.00 for the period May 7, 1998,
through May 11, 1998;
(2) $500.00 for the period June 15, 1998,
through June 16, 1998;
(3) $6,000.00 for the period August 6, 1998,
through August 17, 1998, (12 days at $500.00 per
day) ;
(b) Plaintiff's reasonable attorney's fees
incurred in this matter; and
(c) The costs of this proceeding.
SNELBAKER B H SAN & SPARE, P.C.
By
chard C. Snelbaker
(Pa. Supt. Ct. I.D. #06355)
44 West Main Street
Mechanicsburg, PA 17055-0318
(717) 697-8528
Attorneys for Plaintiff
uw orricEs
SNELSAKER.
BRENNEMAN
a SPARE
-4-
I, DARRELL L. McMILLAN, Director of Codes Enforcement in and
for HAMPDEN TOWNSHIP, the Plaintiff herein, do hereby verify and
certify that I am authorized to make this verification on behalf
of Plaintiff and that the facts set forth in the foregoing
Complaint are true and correct to the best of my knowledge,
information and belief. I understand that any false statements
made in said complaint are subject to the penalties of 18 Pa.
C.S. S 4904 relating to unsworn falsification to authorities.
?Ja?u c.P Al
Dartell L. McMillan
Director of Codes Enforcement
of Hampden Township
Dated: September 0?9 , 1998
uw orncts
SNELBAKER•
BRENNEMAN
a SPARE
Exhibit 5'1,*
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF: CUMBERLAND
moo 010, No, -
09-3-04
W Ne F? ..
THOMAS A. PLACEY
Ad5992: 104 8. SPORTING HILL RD.
MECHANICSBURG, PA
Teiew ? : (717) 761-8230 17055
THOMAS A. PLACEY
104 S. SPORTING HILL RD.
MECHANICSBURG, PA 17055
THIS IS TO NOTIFY YOU THAT:
Judgment:
NOTICE OF JUDGMENT/TRANSCRIPT
PLAINTIFF: CIVIL CASE
NAME.MADDRESS
a MPDEN TOWNSHIP -I
230 S. SPORTING HILL RD.
MECHANICSBURG, PA 17055
DEFENDANT: VS. J
NMIE.MADDRESS
rTERRY LEININGER/LEININGERS AUTO 8PP-I
6384 BRANDY LN.
MECHANICSBURG, PA 17055
L J
Docket No.: CV-0000188-99
Date Fited: 5/11/99
® Judgment was entered for: (Name) mgggv T.1{TNTNr1 g/i RTNTNriRR9 LTTIVO APH
® Judgment was entered against: (Name) HAMpT]RN TAiQNgMTp
in the amount of $ _ nn on:
n Defendants are jointly and severally liable.
(Dale of Judgmenq g/ng/gg
(Date & Time)
n Damages will be assessed on:
? This case dismissed without prejudice.
Amount of Judgment Subject to
AttachmentlAcl 5 of 1996 $
F1 Levy is stayed for -days or O generally stayed.
ElObjection to levy has been filed and hearing will be held:
Dale: Place:
Time:
Am r,An i T nAS lilt Inunr TO APPEAL. WITHIN 30 DAYS AFTER THE ENTRY OF AI DGMENT BY.FILING A NOTICE
OF APPEAL WITH THE PROTHONOTA PIY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION., YOU
MUST INCLUDE A COPY OF THIS' NOTI?E OF JUDGMENT/TOANSCRIPT FORM WITH 'YOUR NOTICE OF APPEAL.
I I I Date
District Justice
I certify that this is a true and'?Ojrec? caj: Y' o file recor?t) the proceedings containing the judgment.
?--- _ Date ' District Justice lf? My commission expires first Monday of Janu ry, 2004 SEAL
AOPC 315.99
Amount of Judgment $
0
10
Judgment Costs $ .00
Interest on Judgment $ .00
Attorney Fees $ .00
Total $ .00
Post Judgment Credits $
Post Judgment Costs $
-----
Certified Judgment Total $ ---=__=
COMMONWEAL'I I I OF PENNSYLVANIA
UUUMI T vi-: a.VP nnLY m
09-3-04
0J Nr : Non.
THOMAS A. PLACRY
new.": 104 9. SPORTING HILL RD.
MECHANICSBURG, PA
vole x,:17171 761-8230 17055
THOMAS A. PLACSY
104 S. SPORTING HILL RD.
MECHANICSBURG, PA 17055
h'
THIS IS TO NOTIFY YOU THAT:
Judgment:
NOTICE OF JUDGMENTITRANSCRIPT
PLAWtirr. CIVIL CASE
N,Ml,ndA000RRR
I-HAMPDRN TOWNSHIP
230 S. SPORTING HILL RD.
MECHANICSBURG, PA 17055
L i
Vs,
UFrENDANt: NMI U-dA00RERR
IT6RRY LSININGBR/LBININGERS AUTO 90-0
6384 BRANDY LN.
MECHANICSBURG, PA 17055
L J
DochelNo.: CV-0000235-99
Date Filed: 6/16/99
?x Judgment was entered for: (Name) TEB v LEE N.TNnRR.1 T.HTNItfr3HRR ATrrn anH
® Judgment was entered against: (Name) HAMPDSN TOWNSHT p
in the amount of $ nn on: (Date of Judgment) R/no/oo
R Defendants are jointly and severally liable.
Damages will be assessed on:
F This case dismissed without prejudice.
Amount of Judgment Subject to
AllachmenUAc15 of 1980 $_
Levy Is stayed for-- days or ? generally stayed.
FjObjection to levy has been filed and hearing will be held:
(Dale & Time)
Amount of Judgment $ .00
Judgment Costs $ .00
Interest on Judgment
0
$ .0
Attorney Fees $ .00
Total $ .00
Post Judgment Credits $
Post Judgment Costs $
------------
Certified Judgment Total $
Dale: Placa:
Time:
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY Cb ''JUg¢MENT BY FILING A NOTICE
OF APPEAL WITH THE PROTHONOTARYICLERK OF THE COURT OF COMMepI pLEASi CIGIt DIVISION. YOU
MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT F0?'fM WITH YOUR NOTICE OF APPEAL.
Date Dlsttlct Justice
I certify [hat this Is a true and corrocl?copy of Ills ecor of the proceedlKgy containing jhe judgment.
I_ iT Date District Justice
My commission expires first Monday of January, I 2004 SEAL
AOPC 3 15.90
COMMONWEALTH OF PENNSYLVANIA
COl1NTY nF• CUMBERLAND
09-3-04
DJ Nam: 11m.
THOMAS A. PLACEY
Atlda"' 104 S. SPORTING HILL RD
MECHANICSBURG, PA
raMWaw1717 I 761-8230 17055
THOMAS A. PLACEY
104 S. SPORTING HILL RD.
MECHANICSBURG, PA 17055
P
NOTICE OF JUDGMENT/TRANSCRIPT
PLAINTIFF: CIVIL CASE
NAME am ADDRESS
rHAMPDEN TOWNSHIP
230 S. SPORTING HILL RD.
MECHANICSBURG, PA 17055
L
J
VS.
DEFENDANT: NAME and ADOnESS
NTERRY LEININGER/LEININGERS AUTO Sig
6384 BRANDY IN.
MECHANICSBURG, PA 17055
L J
DocketNo.: CV-0000241-99
Date Filed: 6/21/99 4a
THIS IS TO NOTIFY YOU THAT:
Judgment: _PGR nEFRNDANT
® Judgment was entered for: (Name) TRRRV T.RTNTNGSR/T RTNTNr3RRA A1TTO APR
a Judgment was entered against: (Name) HAMPT)RN TowNRHTp
in the amount of $ _ nn on:
Defendants are jointly and severally liable.
(Date of Judgment) a/noIoo
(Dale & Time)
n Damages will be assessed on:
n This case dismissed without prejudice.
Amount of Judgment Subject to
Attachment/Act 5 of 1996 $-
F] Levy Is stayed for_ days or ? generally stayed.
Objection to levy has been filed and hearing will be held:
Date: Place:
Time:
i
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMgNT BY FILING A NOTICE
OF APPEAL WITH THE PROTHONOTARYICLERK'OP-THE COURT OF COMMON PLEA``S, CI.YILD?.VISION. YOU
MUST INCLUDE A COPY OFTFIIS N/ TICE OF JUDGMENT(f INSCRIPT FORM WIl•YOUR NOTICE OF APPEAL.
Dale I
-{-L?' r District duslice
Li J-
I certify that this is a true anIV
urr*l copy of her ord of the pr6o'ceedings containing the judgment.
I I I Dale / District Justice
My commission expires first Monday of January, 2004 SEAL
AOPC 315-99
Amount of Judgment $ .00
Judgment Costs
0
$ .0
Interest on Judgment $ .00
Attorney Fees $ .00
Total $ .00
Post Judgment Credits $
Post Judgment Costs $
Certified Judgment Total $
HAMPDEN TOWNSHIP,
Plaintiff
V.
TERRY LEININGER,
Defendant
DISTRICT COURT 09-3-04
CV-0188-99
CV-0235-99
CV-0241-99
Plaintiff Is a township municipality that seeks to enforce the approved
final site plan provisions utilizing a township ordinance prohibiting deviation
from the terms or conditions of approval pursuant to the authority of the
Municipal Planning Code (MPC). The provision Is a storage control restriction
specific to Plaintiff's utilization of the property In the "Site Plan" which
states:
All vehicles which are being serviced or repalred and which are left outside'
over 24 hours at the south west building currently occupied by Leininger's
Automotive shall be stored within the proposed area enclosed by the 6 foot
high fence with slats.
The Plaintiff's Codes Enforcement Officer after observing repeated violations
of the provision filed three (3) civil complaints for this Court to assess
penalties for the alleged violations. Specifically the Officer testified and
provided photographs to witnessing violations on April 5-6, May 4-5, June
10-11, 16-17 and 23-24. The Officer further Identified two larger vehicles,
among others, that were routinely in violation of the storage control
restriction.
Defendant provided testimony that the nature of the business requires
that vehicles shuffle about the area; that the race trailer and car Identified
by the Officer are personal vehicles stored at the property and used on the
weekend; that the other large vehicle Identified is a truck requiring long
term repair as parts are received. Defendant also stated that the actions are
harassing, the business is being unfairly treated and that the enforcement
procedure lacks due process.
Plaintiff argues for the assessment of penalties for the 119 days of
continual violation in direct disregard of the restriction, supported by the fact
that Defendant had notice of the restriction as evidenced by the prior paying
of assessed fines to the Court. The Court took judicial notice of the decision
of the Honorable Kevin A. Hess dismissing the prior Complaint at 98-5171
Civil on 25 March 1999. The Plaintiff asserts that this filing Is In compliance
with that decision.
As indicated the issues presented will all be discussed, in reverse
order, to allow the parties to make an Informed appeal decision which would
result in a new trial. The complaint filed Is based on the Hampden Township
Land Development Ordinance which served as the basis for the prior
Complaint, albeit a different section of the Ordinance. Judge Hess said in
dismissing the prior Complaint: "the language of the statute is clear in that
the legislature used the term 'subdivision or land development ordinance'
when referring to what must be violated in order to prompt the enforcement
remedies under Section 515.3. Therefore, we will not look behind the
unambiguous language of the statute and apply the statute to a violation of
the land development plan." There being no new ordinance to serve as the
basis for the new complaint judgement will be for the Defendant.'
Defendant's treatment by the Officer has been appropriate and in
accordance with the filing procedures of the MPC.z The Officer is merely
responding to the allegations of violation made by the landlord, officials or
residents who know of the restriction and bring Into question the condition of
the property.3 Indeed, others In the development may keep their property
in the same condition; however, the only business subject to this restriction
is Defendant. Defendant entered and remains on the property with full
This decision is buttressed by the concurring opinion of the Honorable Edgar B. Bayley in
which "Hampden Township acknowledges that it does not have an ordinance as allowed by
Section 513.3(a) of the MPC that prescribes penalties for failure to comply with the
conditions in a land development plan." The Ordinance presented at trial Is dated 2/2/95.
Further, any deficiencies in the pleading of the prior Complaint would result in an amended
complaint rather than a dismissal. A dismissal at the District Court level is without prejudice
and would not give leave to appeal; therefore a specific judgment is entered.
2 Judge Bayley highlights in the concurring opinion from Commonwealth v. Marcus, 690
A.2d 842 (Pa. Commw. 1997), a citation was Issued to defendant thereby giving
Immediate notice to defendant and starting the more time efficient and cost effective
method utilizing the citation procedure. That is 10 days to enter a plea by defendant versus
witnessing the violation on the 51' of April, filing a complaint with monies on the 11th of May,
subsequent service of the complaint and a trial after continuances on the 2nd of August. The
citation procedure is the more expedient and fair way to begin the action.
' The Plaintiff has filed five (5) complaints at the District Court since January 1998, four (4)
of those against Defendant. Among those four (4), three (3) are part of this Court
consolidated action, one (1) was previously dismissed at 98-5171 Civil by Judge Hess.
knowledge of the restriction placed upon It by the landlord and the Plaintiff.'
The contractual Issues of this use restriction are not the subject of this suit
nor are the land uses within this Court's jurisdiction.
The Defendant Is in violation of the use restriction. It has been shown
through the Officer's testimony of the multiple day violations. This finding is
not for the 119 days that Plaintiff seeks but limited to those days found
above. Defendant's race car and trailer are serviced at the business and
stored in the prohibited area. The ownership of the vehicle is not an
element of the restriction, it is the use of the area for storage of serviced or
repaired vehicles for more than a 24 hour period. The previous paying of
the judgments may have been done as the cost of doing business and
nothing but Defendant's knowledge of the restriction is Inferred from the
prior actions. Defendant has, albeit belatedly, begun to address the Issues
raised In this suit rather ignore them and await judgment. These facts are
insufficient to aggravate the would be penalty from the standard range of
one half the allowed penalty or $250.00 per day of violation.
Judgment is in favor of the Defendant with costs on the Plaintiff in
conformity with the precedent established by the 25 March 1999 Order and
Opinion of the Honorable Kevin A. Hess. The parties have previously been
advised of their appeal rights and the exhibits are being returned to the
presenting party.
9 Aug 99
awe -
4 In Marcus there was a specific township ordinance which set forth the basis for the
required actions and the consequences for failure to do as directed, thus applying the plan
to a violation of the ordinance. In contrast the action here is prohibited only by the
Plaintiff's Plan Review Board's "approved 'as built' site plan" which does not rely on any
ordinance as basis for the Board's restriction, rather it applies the ordinance to a violation of
the plan.
1
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HAMPDEN TOWNSHIP,
Plaintiff
vs.
TERRY LEININGER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-5556 EQUITY
CIVIL ACTION - EQUITY
NOTICE TO PLEAD
TO: Terry Leininger (Defendant)
And
Stephen K. Portko, Esquire and
Bratic & Portko (Attorneys for Defendant)
You are hereby notified to file a written response to the enclosed Plaintiffs
New Matter re Counterclaims within twenty (20) days from service hereof or a
judgment may be entered against you.
SNELB BRENNEMAN & SPARE, P.C.
By
chard C. Snelbaker, Esquire
44 West Main Street
Mechanicsburg, PA 17055-0318
(717) 697-8528
Attorneys for Plaintiff
"IN OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
HAMPDEN TOWNSHIP,
Plaintiff
vs.
TERRY LEININGER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-5556 EQUITY
CIVIL ACTION - EQUITY
REPLY TO NEW MATTER AND COUNTERCLAIMS
A. REPLY TO NEW MATTER
AND NOW, comes Plaintiff by its attorneys and responds to Defendant's New
Matter as follows:
13. After reasonable investigation, Plaintiff is without knowledge or
information sufficient to form a belief as to the truth of the averments in
paragraph 13 and, therefore, the same are deemed to be denied pursuant
to Pa. R.C.P. 1029(c).
14. It is admitted that Defendant has an occupancy permit to conduct lawful
uses of the subject premises. It is denied, however, that Defendant has
any right to use the premises in contravention of the provisions of the
land development plan as averred in the Complaint.
15. Admitted.
16. It is denied that Defendant's use of the premises complies with all of the
IAW OFFICES
SNELOAKER, zoning ordinance. On the contrary, the extent that the provisions of
BRENNEMAN & SPARE
?? the land development plan are incorporated expressly or by implication
into the zoning regulations, Defendant's use in contravention of the
provisions of the plan is similarly in violation of the zoning regulations.
17. It is denied that Defendant's use is a "valid pre-existing use." On the
contrary, Defendant's use has been subject at all times to the provisions
of the land development plan which Defendant has violated as averred in
the Complaint. If Defendant intends to claim use prior to the approval of
the land development plan, it is averred that any such use was unlawful
and without a certificate of use.
18. It is denied that Defendant has a "vested right' to store vehicles at any
location. On the contrary, Defendant's storage of vehicles has been in
violation of the provisions of the land development plan as averred in the
Complaint.
19. It is denied that Defendant has a "vested right" to store vehicles for any
length of time. On the contrary, Defendant's storage of vehicles has been
in violation of time limitations of the land development plan as averred in
the Complaint.
20. The averments in paragraph 20 are nonsensical attempted conclusions of
law to which no answer is required and the same are deemed to be denied
pursuant to Pa. R.C.P. 1029(d).
"W OFFICES
SNEL9AKER.
BRENNEMAN
& SPARE
20. The averments in paragraph 20 are conclusions of law to which no
answer is required and the same are deemed to be denied pursuant to Pa.
R.C.P. 1029(d).
22. The averments in paragraph 22 are conclusions of law to which no
answer is required and the same are deemed to be denied pursuant to Pa.
R.C.P. 1029(d).
23. The averments in paragraph 23 are conclusions of law to which no
answer is required and the same are deemed to be denied pursuant to Pa.
R.C.P. 1029(d). If the content is determined to be factual averments,
Plaintiff, after reasonable investigation, is without knowledge or
information sufficient to form a belief as to the truth thereof and,
therefore, they are deemed to be denied pursuant to Pa. R.C.P. 1029(c).
24. The averments in paragraph 24 are incomplete conclusions of law to
which no answer is required and the same are deemed to be denied
pursuant to Pa. R.C.P. 1029(d)
25. The averments in paragraph 25 are conclusions of law to which no
answer is required and the same are deemed to be denied pursuant to Pa.
R.C.P. 1029(d). If the content is determined to be factual, the assertions
are denied. On the contrary, the provisions of the plan were imposed for
the welfare of the community, particularly for the residential users in the
neighborhood of the subject premises. In any event, the Defendant is
barred from attacking the imposition at this time, no appeal having been
LAW CPPICE6
SNELBAKER.
BRENNEMAN
& SPARE
perfected at the time of imposition.
25. The content of paragraph 25 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029 (d).
26. The content of paragraph 26 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
27.It is denied that Plaintiffs officers, agents or employes were not
authorized to require the provisions of the land development plan. On the
contrary, they were and continue to be authorized by law. In any event,
Defendant's lessor accepted and agreed to the conditions which are
binding upon Defendant regardless of the extent of such authority.
28. It is denied that Plaintiff has treated Defendant differently from other
persons. On the contrary, Plaintiff would enforce the same conditions
against other violators in the same manner as against Defendant. The
remainder of the paragraph is a series or conclusions of law to which no
response is required and are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
29. The content of paragraph 29 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
LAW
S N
C °L9AKER""`°. 30. The content of paragraph 30 is conclusions of law to which no response is
19RENNEMAN
Q SPARE 11
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
31. After reasonable investigation, Plaintiff is without knowledge or
information sufficient to form a belief as to the truth of the averment of
Defendant's use "since at least 1989" and, therefore, the same is deemed
to be denied pursuant to Pa. R.C.P. 1029 (c). By way of further response,
it is averred that any use of the premises prior to the issuance of a
certificate of use on August 15, 1991, was unlawful and illegal. As to
remainder of the content of paragraph 31, Plaintiff avers the content of its
Complaint is true and correct and speaks for itself.
32. Admitted.
33. It is denied that the provisions of the land development plan were
obtained by an improper denial of the developer's land development. On
the contrary, the condition in issue was agreed to and accepted by the
developer and is lawful and proper. All other content of paragraph 33 is a
series of conclusions of law to which no response is required and is deemed
to be denied pursuant to Pa. R.C.P. 1029(d).
34. The content of paragraph 34 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
LAW °"'°EE 1029(d).
II
SNELBAKER.
BRENNEMAN
& SPARE
35. Admitted.
36. The content of paragraph 36 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d). By way of further response, Plaintiff incorporates its Complaint
herein by reference thereto.
37. After reasonable investigation, Pla`.ntiffis without knowledge or
information sufficient to form a b lief as to the truth of the averment that
Defendant's conduct of parking/storing vehicles predated the developer's
land development plan and, therefore, said averment is deemed to be
denied pursuant to Pa. R.C.P. 1029(c). All other content of paragraph 37
is conclusions of law to which no response is required and are deemed to
be denied pursuant to Pa. R.C.P. 1029(d).
38. The content of paragraph 38 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
39. The content of paragraph 39 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
40. The content of paragraph 40 is conclusions of law to which no response is
LAW OFFICES I required and the same are deemed to be denied pursuant to Pa. R.C.P.
SNELSAKER,
SRENNEMAN
& SPARE 1029(d).
41.Admitted in part. However, to the extent the averment is in
contravention with Plaintiffs Complaint, said averment is denied and the
content of the Complaint is incorporated herein by way of denial.
42.It is denied that Plaintiffs Complaint seeks to enforce the provisions
against the subject premises. On the contrary, Plaintiffs Complaint
(which speaks for itself and is incorporated herein by reference thereto)
seeks to enforce the condition(s) of the land development plan on the
Defendant because of his persistent violation thereof.
43.It is denied that the landowner has any interest in this action. On the
contrary, Plaintiff seeks remedial relief against Defendant only for his
persistent violation of the conditions of the land development plan
regulating his use of the property he occupies.
44. For the reasons set forth in paragraphs 42 and 43 above, it is denied that
the landowner is an indispensable party. In any event, the content of
paragraph 44 is conclusions of law to which no response is required and
the same are deemed to be denied pursuant to Pa. R.C.P. 1029(d).
45.It is admitted that Plaintiff has not in fact joined the owner of the real
estate as a party. It is denied that Plaintiff has any obligation to join such
person(s) and, therefore, has not "failed" to so join. By way of further
LAW °FFIC" I response, the averments in paragraphs 42 and 43 are incorporated herein
SNELBAKER.
BRENNEMAN
& SPARE
by reference thereto. By way of further defense, the Defendant's attempt
to raise the issue of failure to join a party should be stricken of failure to
raise the same as a preliminary objection under Pa. R.C,P. 1028(x)(5).
46. The content of paragraph 46 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
47. The content of paragraph 47 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
48. The content of paragraph 48 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
49. The content of paragraph 49 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
50. The content of paragraph 50 is conclusions of law to which no response is
required and the same are deemed to be denied pursuant to Pa. R.C.P.
1029(d).
51. The content of paragraph 51 is conclusions of law to which no response is
NW OFFICES I required and the same are deemed to be denied pursuant to Pa. R.C.P.
SNELBAKER,
BRENNEMAN
& SPARE 1029(d). To the extent that the content of paragraph 51 is determined to
be factual, it is specifically denied that Plaintiffs action against
Defendant is unlawful in any manner whatsoever. On the contrary, it is
averred that Plaintiff is exercising its proper authority to prevent
Defendant's persistent and flagrant violations as set forth in the
Complaint which is incorporated herein by reference thereto.
WHEREFORE, Plaintiff again respectfully requests the Court to grant relief
sought in the Complaint.
B. REPLY TO COUNTERCLAIMS
(11 Tortious Interference with Contract
52- In response to Defendant's attempt to incorporate prior averments,
Plaintiff incorporates herein all of its averments in its Complaint and its
responses to New Matter hereinabove.
53.After reasonable investigation, Plaintiff is without knowledge or
information sufficient to form a belief as to the truth of the averments in
paragraph 53 and, therefore, the same are deemed to be denied pursuant
to Pa. R.C.P. 1029(c).
54.The averments of paragraph 54 are denied. On the contrary, any contact
with the landowner was to require the owner to obtain an approved land
uw o.. «e development plan, in the absence of which Defendant's alleged storage
SNELBAKER.
BRENNEMAN was illegal and unlawful and without a required certificate of use.
& SPARE
55. The averments of paragraph 55 are denied. The response in paragraph 54
above is incorporated herein by reference thereto. It is especially denied
that Plaintiffs officers, agents or employees made any false
representations as to its ordinance. By way of further response, it is
averred that the landowner willingly and voluntarily accepted all
conditions of the land development plan.
56. It is denied that the subject condition was unilaterally or improperly
imposed by Plaintiff, On the contrary, it is averred that the landowner
willingly and voluntarily accepted all conditions of the land development
plan.
57. The content of paragraph 57 is a series of conclusions of law to which no
response is required and the same are deemed to be denied pursuant to
Pa. R.C.P. 1029(d). If any of said content is deemed to be factual, all such
content is denied. On the contrary to such content, it is averred that the
land development plan was processed and approved in accordance with
law and voluntarily accepted as approved by the landowner.
58. The content of paragraph 58 is a series of conclusions of law to which no
response is required and the same are deemed to be denied pursuant to
Pa. R.C.P. 1029(d). If any of said content is deemed to be factual, all such
LAW OIPICL9 content is denied. On the contrary to such content, it is averred that the
SNELBAKER.
BRENNEMAN
& SPARE land development plan was processed and approved in accordance with
II law and voluntarily accepted as approved by the landowner.
10
59. The content of paragraph 59 is a series of conclusions of law to which no
response is required and the same are deemed to be denied pursuant to
Pa. R.C.P. 1029(d). Since Defendant has failed to plead damages in
accordance with Pa. R.C.P. 1019(1), it is impossible to respond to the
allegation of `loss of trade". In any event, Plaintiff specifically denies he
averments of paragraph 59, and avers to the contrary that any actual loss
incurred by Defendant was occasioned by his persistent violation of the
lawful condition of the land development plan
WHEREFORE, Plaintiff requests the Court to dismiss said Counterclaim and
enter judgment thereon in favor of Plaintiff and against Defendant.
2. Wrongful Use and/or Abuse of Civil Process
60. In response to Defendant's attempt to incorporate prior averments,
Plaintiff incorporates herein all of its averments in its Complaint and its
responses to New Matter and prior Counterclaim.
61. The content of paragraph 61 is a series of conclusions of law and the same
are deemed to be denied pursuant to Pa. R.C.P. 1029(d). It is further
denied that any court miler prevents Plaintiff from instituting civil
°'"R
actions, particularly where Defendant persistently has violated the
SNE NELBAKEKER
.
BRENNEMAN
B SPARE conditions of the land development plan as averred in its Complaint.
62. The content of paragraph 62 is a series of conclusions of law and the same
are deemed to be denied pursuant to Pa. R.C.P. 1029(d). By way of
response, it is averred that the decision of the "magesterial court" was
erroneous and incompetent and, in any event, is not a decision of a court
of record and not binding beyond its particular facts and circumstances. It
is admitted that Plaintiff took appeal from such decision for the following
reasons: (a) Defendant continued to violate the provisions of the land
development plan, the abatement of which would only be delayed by
further proceeding at law; (b) Plaintiff considered Defendant's continuing
arrogant violation of said plan provisions as the basis for discontinuing
further enforcement actions at law and to proceed to obtain injunctive
relief by the present action in equity, the law side of the court providing
no adequate remedy.
63. The content of paragraph 63 is a series of conclusions of law and the same
are deemed to be denied pursuant to Pa. R.C.P. 1029(d). By way of
further response, it is specifically denied that Plaintiff commenced this
action for any of the specious reasons alleged by Defendant. On the
contrary, Plaintiff has instituted and prosecutes this action only to enforce
the provisions of the land development plan which Defendant has
"W OFFICES persistently defied and violated.
SNELBAKER.
BRENNEMAN
& SPARE 64. The content of paragraph 64 is a series of conclusions of law and the same
are deemed to be denied pursuant to Pa. R.C.P. 1029(d). By way of
12
further response, it is specifically denied that Plaintiff commenced this
action for any of the specious reasons alleged by Defendant. On the
contrary, Plaintiff has instituted and prosecutes this action only to enforce
the provisions of the land development plan which Defendant has
persistently defied and violated.
65. The content of paragraph 65 is a series of conclusions of law and the same
are deemed to be denied pursuant to Pa. R.C.P. 1029(d). By way of
further response, it is specifically denied that Plaintiff commenced this
action for any of the specious reasons alleged by Defendant. On the
contrary, Plaintiff has instituted and prosecutes this action only to enforce
the provisions of the land development plan which Defendant has
persistently defied and violated.
66. The content of paragraph 66 contains no facts, but is pure speculative
and absurd opinions, to which no response is required and the same is
deemed to be denied pursuant to Pa. R.C.P. 1029(d).
67. The content of paragraph 67 is a series of conclusions of law and the same
are deemed to be denied pursuant to Pa. R.C.P. 1029(d). By way of
further response, it is specifically denied that Plaintiff commenced this
action for any of the specious reasons alleged by Defendant. On the
LAW °""" contrary, Plaintiff has instituted and prosecutes this action only to enforce
SNELBAKER.
BRENNEMAN
& SPARE the provisions of the land development plan which Defendant has
II persistently defied and violated.
13
68. The content of paragraph 68 is a series of unjustified opinions and
conclusions of law to which no response is required and the same are
deemed to be denied pursuant to Pa. R.C.P. 1029(d).
WHEREFORE, Plaintiff requests the Court to dismiss said Counterclaim and
enter judgment in favor of Plaintiff and against Defendant.
PLAINTIFF'S NEW MATTER RE COUNTERCLAIMS
By way of further answer and defense to Defendant's Counterclaims, Plaintiff
avers the following New Matter:
69. Defendant's Counterclaims fail to set forth any causes of action against
Plaintiff upon which the relief sought may be granted.
70. All actions taken by Plaintiff (as complained of by Defendant) are subject
to the claim or defense of privilege.
71. Defendant's Counterclaims are precluded in whole or in part by statutory
and/or common law immunity.
WHEREFORE, Plaintiff requests the Court to dismiss Defendant's
Counterclaims and enter judgment thereon in favor of Plaintiff and against
Defendant.
SNELB BR MAN & SPARE, P.C.
gy
"W OFFICES Richard C. Snelbaker, Esquire
SNELBAKER.
BRENNEMAN 44 West Main Street
& SPARE Mechanicsburg, PA 17055-0318
(717) 697-8528
Attorneys for Plaintiff
14
VERIFICATION
I, DARRELL L. MCMILLAN, Director of Codes Enforcement in and for the
Township of Hampden, the Plaintiff herein, do hereby verify and certify that
I am authorized to make this verification on behalf of Plaintiff, and that the
facts contained in the foregoing Reply to New Matter and Counterclaims
within my knowledge are true and correct, and that facts not within my
personal knowledge I believe to be true and correct based upon the
information of others. I understand that any false statements made herein
are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn
falsification to authorities.
D/ a"'a X. In
Darrell L. McMillan
Director of Codes Enforcement
of Hampden Township
Dated: January ao , 2000.
uw OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
CERTIFICATE OF SERVICE
I hereby certify that I am this date serving a true and correct copy of the
foregoing Reply to New Matter and Counterclaims upon the attorney for
Defendant by sending the same by first-class mail, postage paid, addressed as
follows:
Stephen K. Portko, Esquire
101 Office Center, Suite A
101 South U.S. Route 15
Dillsburg, PA 17019
Ric C. Snelbaker, Esquire
Snelbaker, Brenneman & Spare, P.C.
Attorneys for Plaintiff
Dated: January ,?O , 2000.
uw ovncee
SNELEAKER,
BRENNEMAN
& SPARE
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HAMPDEN TOWNSHIP,
Plaintiff
V.
TERRY LEININGER,
Defendant
PRAECIPE FOR RULE PURSUANT TO Pa R C P 2352!61
LAW OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
TO THE PROTHONOTARY:
Please issue a Rule upon Kenneth Michael Leininger, Administrator of the Estate of
Terry Lee Leininger, Deceased, to show cause why he should not be substituted as a party in this
action. The named Defendant in this action, Terry Leininger, died March 26, 2000. On March
30, 2000, Letters of Administration were granted by the Register of Wills of Cumberland
County, Pennsylvania to Kenneth Michael Leininger as Administrator of the Estate of Terry Lee
Leininger, Deceased, docketed to No. 21-00-267. The Administrator, after reasonable notice and
opportunity, has not voluntarily become a party to this action.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-5556 EQUITY
CIVIL ACTION - EQUITY
SNELBAKER, BRENNEMAN & SPARE, P. C.
BY: ?•/ /jam... ...?.?
Keith 0. Brenneman, Esquire
44 W. Main Street
Mechanicsburg, PA 17055
(717) 697-8528
r Attorneys for Plaintiff
Date: 4417 /7 ;001 Hampden Township
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RULE
AND NOW, this 17y` day of , 2000 upon Praecipe of counsel for
Plaintiff in the above action, a RULE is hereby issued upon Kenneth Michael Leininger,
Administrator of the Estate of Terry Lee Leininger, Deceased, to show cause why he should not
become a party to this action as successor to Terry Leininger, now deceased.
RULE RETURNABLE within twenty (20) days of service hereof in accordance with
Pa.R.C.P. 2353(a).
(Deputy) Prothonotary (SEAL) ?j
I/•.??14 ,E'
LAW OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
Q lJ ti
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•r
J J
S
VERIFICATION
I verify that the statements made in the foregoing Praecipe are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section
4909 relating to unswom falsification to authorities.
Keith O. Brenneman
Date: Jri 07, ?"if
LAW OFFICES
SNELBAKER.
13RENNEMAN
& SPARE
[F-, t7 r-I
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It
SHERIFF'S RETURN - REGULAR
CASE NO: 1999-05556 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HAMPDEN TOWNSHIP
VS
LEININGER TERRY
HAROLD WEARY , Sheriff or Deputy Sheriff of
Cumberland County, Pensylvania, who being duly sworn according to law,
says, the within PRECIPIE FOR RULE PURSUAN was served upon
LEININGER KENNETH M the
DEFENDANT , at 0019:02 HOURS, on the 19th day of July 2000
at 1807 ENGLISH DRIVE
CSBURG. PA 17055
by handing to
CINDA LEININGER (WIFE)
a true and attested copy of PRECIPIE FOR RULE PURSUAN together with
TO PA RCP 2352 B, RULE
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 6.20
Affidavit .00
Surcharge 10.00
.00
34.20
Sworn and Subscribed to before
me this 1 day of
'?vv--) A. D.
Proth notary
So Answers:
eeae?uL i4o? it
R. Thomas Kline
07/20/2000
SNELBAKER, BRENNEMAN & SPARE
M
By. `vim W
Deputy Sheriff
HAMPDEN TOWNSHIP,
Plaintiff
V.
TERRY LEININGER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-5556 EQUITY
: CIVIL ACTION •- EQUITY
PRAECIPE TO MAKE RULE ISSUED PURSUANT TO
Pa.R.C.P. 2352(b) ABSOLUTE
TO THE PROTHONOTARY:
Please make the Rule issued by you on July 17, 2000 absolute due to Kenneth Michael
Leininger's failure to respond to the Rule that was served upon him through his wife at his
place of residence by the Sheriff of Cumberland County on July 19, 2000.
SNELBAKER, BRENNEMAN & SPARE, P.C.
Date: August 11, 2000 By: 41&4,4 Pf Z-'- -
Keith O. Brenneman, Esquire
44 W. Main Street
Mechanicsburg, PA 17055
Solicitor for Plaintiff
AND NOW, this I f' day of August, 2000, the Rule issued by the Prothonotary in
this action dated July 17, 2000 is made ABSOLUTE and Kenneth Michael Leininger,
Administrator of the Estate of Terry Lee Leininger is hereby substituted as a party Defendant
in this action as successor to Terry Leininger, now deceased.
7L'r
R S
AAA Q le
LAW OFFICES
$NELBA thonotary
BRENNEMAN (SEAL) By/ ?
& SPARERRE.
VERIFICATION
I verify that the statements made in the foregoing Praecipe are true and correct. 1
understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
Section 4909 relating to unsworn falsification to authorities.
Date: August 11, 2000
Keith O. Brenneman
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
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