HomeMy WebLinkAbout99-058240
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LOWER ALLEN TOWNSHIP,
Plaintiff
v.
JAMES W. MORAN, JR.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-5824
NOTICE TO PLEAD
You are hereby notified to file a written response to the
enclosed New Matter and Counterclaim of Defendant James W.
Moran, Jr. within twenty (20) days from service hereof or a
judgment may be entered against you.
Date al 44? Oc)
MAR'PSOLF BRAT
By /
Bruce F. Bratton, Esquire
Pa. Attorney I.D. No. 23949
2515 North Front Street
P. O. Box 12106
Harrisburg, PA 17109-2106
(717) 236-4241
Attorneys for Defendant
LOWER ALLEN TOWNSHIP,
Plaintiff
V.
JAMES W. MORAN, JR.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-5824
ANSWER WITH NEW MATTER AND COUNTERCLAIM
Defendant James W. Moran, Jr., by and through his attorneys,
MARTSOLF & BRATTON, responds to the Complaint filed in this matter,
making reference to the paragraph numbers therein, as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied. To the contrary, there is no plan or application
for subdivision approval submitted by the Defendant currently
pending or being lawfully considered by Plaintiff Township. By way
of further answer and denial, Defendant's only plan ever submitted
to Plaintiff Township with respect to his property was approved
with conditions, which said conditions were never accepted by the
Defendant; therefore, by law, such application for approval is
deemed to have been denied.
6. Without admitting the relevance of such allegation,
Defendant admits that the 1994 deed for the said lots does contain
a consolidated legal description. Any implication as to the effect
of such legal description constitutes a legal conclusion to which
no responsive pleading is required.
7. Admitted in part and denied in part. It is admitted that
a deed dated June 28, 1982 executed by James W. Moran, Sr. and
Violet R. Moran, his wife, appears in the Office of the Recorder of
Deeds at Deed Book V, Volume 29, Page 955. Such document speaks
for itself, however, and any implications drawn from or
characterization of the contents of such document are denied.
8. Without admitting the relevance of any such allegation,
it is admitted that the 1994 deed contained no reference to any
restriction on separate conveyance of title of the parcels. Such
document, Defendant submits, speaks for itself, however, and any
implication or mischaracterization of such document by the
Plaintiff's Complaint is denied.
9. After reasonable investigation, Defendant is without
sufficient information to form a belief as to the truth of the
allegations of Paragraph 9 of Plaintiff's Complaint and such
allegations are, therefore, denied. Means of proof of such
allegations are demanded at the trial of this cause if relevant.
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10. The subdivision plan to which Plaintiff refers, being a
written instrument, speaks for itself and the allegations of
Paragraph 10, to the extent they contain implications, inferences
or mischaracterizations of such document, are denied.
11. Admitted in part and denied in part. It is admitted that
on or about the date alleged, Defendant made application to
Plaintiff and Plaintiff issued a building permit to allow
construction of a dwelling unit on a portion of Defendant's
property known as Lot 32 on the Plan of Lots of Spring Lake Colony
but not on any lot depicted on the "Subdivision Plan" since such
plan had not been submitted and did not exist at the time of the
issuance of the building permit. Such allegation that the building
permit refers to any parcel of ground described on a "Subdivision
Plan" mentioned in Paragraph 5 of Plaintiff's Complaint is,
therefore, denied. It is admitted that the Defendant has
constructed the dwelling in accordance with the plan issued and in
accordance with all applicable building codes or ordinances of the
Plaintiff.
12. Admitted in part and denied in part. It is admitted that
the Defendant, at the Plaintiff's request and/or demand, executed
a document in order to provide cross-easements for access and
utility use between separate lots or portions of Defendant's
property located in Lower Allen Township. Defendant executed such
document, however, only upon the Plaintiff's threat to bring civil
or criminal actions against the Defendant if he did not submit a
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subdivision plan and execute such other documents, including the
easement agreement.
13. The agreement dated February 23, 1998, being a written
agreement, speaks for itself. By way of denial, however, Defendant
notes that there was no Exhibit "A" attached to the Complaint as
served by Plaintiff. The written agreement, however, speaks for
itself and any implications, inferences or characterizations of its
content by the Plaintiff are denied. For example, it is expressly
denied that the allegation or statement contained in
Paragraph 13(e) is part of said written agreement, and the
allegation or statement contained in Paragraph 13(f) as to the
township's failure to issue a certificate of occupancy is not part
of the agreement.
14. Admitted.
Count I
Breach of Contract
15. The answers and responses contained in Paragraphs 1
through 14 hereof are incorporated herein by reference.
16. Denied. To the contrary, the document dated February 23,
1998 has not been breached by the Defendant; said document is or
may have been created as a result of undue duress and overreaching
by the Plaintiff and the obligation of the Defendant thereunder is,
therefore, void and unenforceable; such document is impossible of
performance by the Defendant which the Plaintiff full well knew or
should have known at the time it was drafted and forced upon the
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Defendant. By way of further answer and denial, the Plaintiff
Township lacked and lacks legal authority to enter into such type
of contract and/or to require Defendant to enter into such type of
contract, the action of the Township in requiring Defendant to
execute such a contract and/or to require Defendant's submission of
a subdivision plan for his properties is an ultra vires act, and
the Township lacks and lacked any authority to unilaterally require
additional conditions to be imposed upon the subdivision plan and
process.
17. Admitted in part and denied in part. It is admitted that
the home which was completed in strict conformity with the building
permit issued by the township on or about October 15, 1997 has been
occupied as a single-family dwelling. The implication in
Paragraph 17 of Plaintiff's Complaint that such occupancy has been
wrongful is denied, however. To the contrary, it is the Plaintiff
which has wrongfully refused to conduct final inspection of the
property and to issue a certificate of occupancy even though the
property has been built in strict conformity with the building
permit issued by Plaintiff Township.
18. Admitted in part and denied in part. It is admitted that
the Defendant has refused to accept all of the conditions imposed
by Plaintiff Township with regard to the "Subdivision Plan". It is
denied, however, that such failure to accept the conditions is a
breach of the agreement of February 23, 1998 or that such breach of
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agreement has caused any damages to the Plaintiff or that the
Plaintiff has any cognizable claim as a result thereof.
19. Denied. Defendant expressly denies that he has in any
way ever violated the terms of any lawful, binding agreement or
violated any of his obligations under the Municipalities Planning
Code, township ordinances or the like. It is expressly denied that
anything that the Defendant has done has "prevented the recording"
of any documents or has prevented the issuance of a certificate of
occupancy for a single-family home and after the lawful issuance of
a building permit by the Plaintiff.
WHEREFORE, Defendant respectfully requests that the
Plaintiff's Complaint be dismissed and that judgment be entered in
Defendant's favor, together with costs of suit and reasonable
attorneys' fees as may be available under applicable Pennsylvania
or other law.
Count II
Fraud
20. The answers of Paragraphs 1 through 19 are hereby
incorporated herein by reference.
21. The allegation of Paragraph 21 constitutes a conclusion
of law to which no responsive pleading is required. To the extent
a response is required, Defendant denies that he has ever acted
with fraudulent intent or in any deceitful fashion. To the
contrary, it has been the Plaintiff, acting through its agents,
employees, solicitors and others, who has issued permits and then
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denied the validity of such permits and taken other steps in an
effort to unlawfully interfere with or to take the Defendant's
right to the free use and enjoyment of his property and to
otherwise violate the constitutional rights of the Defendant,
including the filing of the instant action to attempt to further
intimidate and pressure the Defendant to give up or waive his
protected property rights.
22. The allegation of Paragraph 22 constitutes a conclusion
of law to which no responsive pleading is required. To the extent
a response is required, Defendant expressly denies that he has ever
acted fraudulently or deceptively or made any false or deceptive
representations to Plaintiff Township.
WHEREFORE, Defendant respectfully requests that the
Plaintiff's Complaint be dismissed and that judgment be entered in
Defendant's favor, together with costs of suit and reasonable
attorneys' fees as may be available under applicable Pennsylvania
or other law.
NEW MATTER
23. Plaintiff's Complaint fails to state a cause of action
upon which the relief requested can be granted.
24. On or about October 15, 1997, Defendant applied for, paid
the appropriate fees and otherwise lawfully sought the issuance by
Plaintiff of a building permit to build a single-family residence
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on some of the property owned by him and which is the subject of
Plaintiff's Complaint.
25. On or about that same date, Plaintiff Township, acting
through its authorized agents, servants, employees, solicitors and
staff, issued a lawful permit for the construction of a single-
family residence for which Defendant had applied.
26. Some weeks thereafter, the Plaintiff's representatives,
agents, solicitors and others approached the Defendant and demanded
that the Defendant prepare and submit a subdivision plan alleging
that the issuance of the building permit was accomplished
"in error".
27. Defendant, as a show of good faith, entered into an
agreement to submit a subdivision plan with respect to his
property, even though the Plaintiff was aware of a prior deed
restriction disallowing further subdivision. (See Plaintiff's
Complaint, Paragraph 7.)
28. Although the said agreement refers to elimination of a
lawfully existing, non-conforming use as a two-unit residence as to
one previously constructed dwelling house, Defendant was advised by
the Plaintiff's own representatives that, if he could prove the
nonconformity with respect to such two-unit use, he would be
permitted to keep such nonconforming use as a matter of right.
29. On or about the same date as the date of said agreement,
Defendant submitted an application for a certificate of
nonconformance along with evidence and documentation as to the non-
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conforming use of such property and the Plaintiff did, in fact,
issue such certificate of nonconformance for that property on or
about May 22, 1998.
30. As a result of the issuance of such certificate of
nonconformance by Plaintiff Township, Defendant understood and
Plaintiff agreed that the obligations with respect to eliminating
the two-unit residential dwelling as expressed in the written
agreement were no longer valid but were amended by the issuance of
such certificate of nonconformance.
31. It was the Plaintiff who then insisted upon further
revisions to the then-pending subdivision plan and insisted on
additional conditions for said approval of such subdivision plan to
include recording of documents which would, in effect, further have
removed or diminished the Defendant's rights to the use and
enjoyment of his property and which would have, in essence, meant
that the certificate of nonconformance issued by the Plaintiff was
meaningless and of no effect.
32. Defendant never accepted the conditions imposed by
Plaintiff Township on the approval of the subdivision plan.
33. Plaintiff's staff and solicitors had expressed an
opinion, at or about the time of the issuance of the building
permit in October of 1997, that the mere consolidation of a legal
description in a recorded deed did not, in fact, result in the
erasure of preexisting lot lines as appeared on the Plan of Lots of
Spring Lake Colony.
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u
34. There is no provision in the Municipalities Planning Code
or in any other statute which grants authority to Plaintiff
Township to enter into the agreement dated February 23, 1998 as a
means of attempting to extract from the Defendant, a property owner
within the township, rights which had been granted to him by j
Plaintiff Township in the issuance of building permits and F'
otherwise and such agreement is, therefore, unlawful and
unenforceable.
35. The issuance of the certificate of nonconformance with
respect to the two-unit dwelling situate on Lot 31 of the Plan of
Lots of Spring Lake Colony operated as an amendment of and
superseded the agreement which had been entered into in February of
1998 upon the insistence of the Plaintiff.
COUNTERCLAIM
36. The answers and allegations of Paragraphs 1 through 35
are hereby incorporated herein by reference.
37. The acts and actions of Plaintiff Township, acting by and
through its supervisors, commissioners, employees, solicitors and
agents, has been an attempt and effort on the part of the Plaintiff
to deny the Defendant/Crossclaim Plaintiff of his constitutionally
protected property rights without due process of law and without
authority of law to do so.
38. Such acts and actions taken by the Plaintiff, acting by
and through its supervisors, commissioners, employees, solicitors
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and agents, constitute a violation of the rights of the
Defendant/Crossclaim Plaintiff, as protected by Articles V and XIV
of the United States Constitution and by the Pennsylvania
Constitution, and thereby give rise to an action by the
Defendant/Crossclaim Plaintiff pursuant to 42 U.S.C. Sections 1981,
1983 and/or 1985.
39. In February of 1998, Defendant had also applied to
Plaintiff for a certificate of nonconformace as to a boarding house
on Lot 23 of the Spring Lake Colony plan and had submitted
documentation and evidence of such non-conforming use of the
dwelling house on such lot.
40 Plaintiff has never acted upon such application for non-
conformity certificate and such application is, therefore, deemed
to have been approved.
WHEREFORE, Defendant/Crossclaim Plaintiff demands (1)judgment
in his favor and against the Plaintiff/Crossclaim Defendant in such
amount as this Honorable Court deems to be just under all of the
circumstances, an amount which the Defendant/Crossclaim Plaintiff
expects to be in excess of $10,000.00 and in excess of that amount
requiring reference to compulsory arbitration, (2) declaring that
the application submitted by Defendant for a certificate of non-
conformity as to the boarding house on Lot 23 of the Spring Lake
Colony plan is approved, and (3) awarding to the
Defendant/Crossclaim Plaintiff his reasonable attorneys' fees,
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costs and expenses in defending this action and in pursuing his
claim for the violations of his constitutionally protected rights.
Respectfully submitted,
MARTSOLF & B 0
Date al J a a 0 (J BY?
Bruce F. Bratton, Esquire
Pa. Attorney I.D. No. 23949
2515 North Front Street
P. 0. Box 12106
Harrisburg, PA 17108-2106
(717) 236-4241
Attorneys for Defendant
12
VERIFICATION
I verify that the statements made in the attached pleading are
true and correct, partially upon personal knowledge and partially
upon my belief; to the extent language in the attached pleading is
that of my attorneys, I have relied upon my attorneys in making
this Verification. I understand that false statements herein are
made subject to the penalties of 18 Pa. C.S. Section 4904 relating
to unsworn falsification to authorities.
dames W. Moran, Jr.
Date
CERTIFICATE OF SERVICE
I hereby certify that I today served a true and correct copy
of the foregoing Answer with New Matter and Counterclaim, by
placing the same in the U.S. mail, postage prepaid, addressed to:
Steven P. Miner, Esquire
METZGER, WICKERSHAM, KNAUSS & FRS
3211 North Front Street
P. O. Box 5300
Harrisburg, PA 17 3 0
_2!
Date
B uce F. Bratton, Esquire
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TFLLS AGREEMENT, made this 4 day of FcS2uAA y , 1998, by and
between LOWER ALLEN TOWNSHIP, a townshlp of the first class, Cumberland County,
Pennsylvania, with an o 3 pummel Avenue, Camp Frill, Pennsylvania 17011
("Township") and JAMHSW, JR., an adult individual, of Cumberland County,
Pennsylvania, with an address of 1007 Bumt House Road, Carlisle, Pennsylvania 17013
( Moran ).
A. Moran is the owner of Lots 31 and 32 from the Plan of Lots of Spring Lake
Colony, Cumberland County Plan Book 2, Page 112; by Deed recorded in Cumberland County
Deed Book 106, Page 405, also identified as 2225 Orchard Road and as Tax I.A. Parcel No.
13-23-549-165A (the "Property").
B. Moran is also the owner of Lot No. 23 of Spring Lake Colony, as evidenced In
Deed Book 106, Page 407, abutting on the southerly side of Orchard Road between the Property
and Orchard Road, and also identified as 2221 Orchard Road and as Tax Parcel No. 13-23-0549-
165 ("Lot 23").
C. Moran currently has pending before the Township a Preliminary/FinalSubdivlsion
Plan for the purpose of subdividing Lots 31 and 32 into Lots 31 and 32A (the "Subdivision
Plan").
D. Moran's tide to the Property is by virtue of a Deed dated June 1, 1994, from
James W. Moran, Sr., and Violet R. Moran, the parents of James W. Moran, Jr (the "1994
Deed"). The 1994 Deed for Lots 31 and 32 contains a combined legal description of Lots 31
and 32 sa the Property.
E. By Deed dated June 28, 1982, James W. Moran, Sr. and Violet R. Mohan
consolidated Jots 31 and 32 from the Spring Lake Colony Plan of Lots into one legal
description, as evidenced in Cumberland County Deed Book V, Volume 29, Page 955 (the
01982 Dead"). The 1982 Deed further stated that Lots 31 and 32 may not be conveyed
separately and must be conveyed together.
F. Although the 1994 Deed contained the consolidated legal description for Lots 31
OW 32, it did not refer to the restriction contained in the 1982 Dead that the lots not be
cxutveyad separately.
EXHIBIT "A"
0. Subsequent to the 1982 Deed, James w. Moran, Sr., and Violet R. Moran
obtained a permit for an in-ground swimming pool and pool house which overlapped from Lot
31 onto Lot 32.
A. The Subdivisiws Plan Identifies Lob 31 and 32 as separate lots and not as a
consolidated lot. The Subdivision Plan also seeks to add onto Lot 31 the area of the
encroachment of the swimming pool and pool house onto Lot 32 and create a new Lot 32A with
the remainder of Lot 32.
I. On October 15, 1997, Marano obtained a building permit from Township to
construct a 1,072 square foot dwelling on Lot 32 on its northeastern comer. Pursuant to said
building pest, Moran has constructed the dwelling which is near completion.
J. Moran executed a Declaration of Easement to provide cross-easements for access
and utilities between Lots 31 and 32 and Lot 23 in order to provide access to Orchard Road and
extension of utilities between Lot 23 and Lots 31 and 32 (the 'Cross-Easement Agreement").
K. The Subdivision Plan in its current condition must be acted upon by the Board of
Commissioners of the Township by February 23, 1998, unless an extension is agreed to between
Township and Moran.
L. Moran and Township are desirous of resolving the issues concerning the
Subdivision Plan and the building permit for the construction of the dwelling on the Property.
NOW, THEREFORE, intending to be bound hereby, and in consideration of the mutual
covenants set forth herein, the parties hereto agree as follows:
B The recitals set forth above are incorporated herein by reference.
2. Subdivision 11101 endon. Moran and Township agree to an extension of time for
action by the Township on the Subdivision Plan until May 31, 1998.
3. RE VW Sub ty ainn man
a. Moran agrees to have the Subdivision Plan revised to reflect the consolidated Lots
31 and 32 as the Property with the creatlon of a subdivision of the Property into
Lots 31 and 32A as shown on the Subdivision Plan. Moran further agrees to
revise the Subdivision Plan to meet all staff comments currently outstanding,
agree as a condition of approval to remove all stockpiles of dirt and rocks placed
by Moran on neighboring properties and within the floodplain, restoring the
ground by Wig, and to file said revised Subdivision Plan at Least fourteen
(14) days prior to a Board of Commiadoners meeting.
b. The revised Subdivision Plan will not need to be considered by the Township
Planning Commission.
4. Revised Cross- asrrn n Anymnent. Moray agrees to prepare for review by the
Township a revised Cross-Easement Amt to reflect the consolidated Lots 31 and
32 as the Property and the proposed creation of Lot 32A. The revised Cross-Easement
Agreement will provide access for Lots 31 and 32A to Orchard Road across Lot 23, and
will provide utility casemenu between Lou 31, 32A and Lot 23.
3. Revised c'6alviann Plate. The only waiver Township agrees, at this time, to
grant to the revised Subdivision Plan is a waiver for frontage of Lots 31 and 32A on a
public street or a private street meeting the standards of a public street. However, the
revised Subdivision Plan shall meet all other requirements of the Township and include
the revised Cross-Easement Agreement in order to provide access for Lots 31 and 32A
to Orchard Road.
6. single-Family Dwelti_nngs. Moran agrees that the use of the existing dwelling on the
Property in the area of original Lot 31 and the proposed dwelling on what will be Lot
32A will both be constructed and used solely as single family detached dwellings.
Neither dwelling may be used as a two-family or multi-family dwelling. Moran will
male any necessary modifications to the buildings to eliminate separate apartments.
7. Mer Uses of the Pro_pgtfy. Monur may continue to use the ground floor of the
existing dwelling on the original Lot 31 area of the Property for storage and may use the
ground floor of the new dwelling on the proposed Lot 32A of the Property for storage.
This storage area shall not be rented or leased to a third party, and no commercial
business may be operated or conducted in the storage area. Further, no other additional
accessory buildings will be constructed on the Property.
g. Run In Under -Qnctructlon,
a. Township agrees to issue an occupancy permit for the dwciling under consmwdon
for which a building permit was issued on october 15, 1997, in the area of
proposed Lot 32A. This will be issued subject to compliance with the Township
Building Code and other applicable regulations and after the approval and
recording of the revised Subdivision Plan, revised Cross-Easement Agreement,
and revised Deed, which documents, with recording informadon, shall be
provided to Township prior to issuance of the occupancy permit.
b. Prior to the issuance of the occupancy permit for the new dwelling on proposed
Lot 32A, Moran shall remove any encroachments within the setbacln not
approved by the building permit issuance or obtain a new building permit for the
encroachments.
9. Revised . Moran shall prepare and record a revised Deed evidencing the new
separate legal descriptions for new Lot 31 and new Lot 32A, pursuant to the revised
Subdivision Plan. Said Deed shall be recorded immediately following the recording of
the revised Subdivision Plan.
10. Approval of A men . This Agreement was approved by the BB?aarrd of Commissioners
of the Township at its regularly scheduled meeting of 23 ?'E62c4AR- , 1998.
11. Rem, Each party releases the other, its elected officials, appointed officials, and
employees, from any liability or claim arising from and as a result of any action that
either party may have against the other concerning the Property in connection with the
Cross-Easement Agreement, the Subdivision Plan, the issuance of the 1997 building
permit for the dwelling on the Property, or the use of the existing dwelling on the
Property. This release shall be a complete release as to the above matters, provided, that
the parties comply with the terms of this Agreement.
12. Successors and Asslega. Each party to this Agreement binds itself and its successors
and assigns to the other party of this Agreement and to the successors and assigns of such
other party, in respect to all covenants of this Agreement. Neither party shall assign or
transfer its interest in this Agreement without the written consent of the other. Nothing
herein shall be construed as creating any personal liability on the part of any officer or
direotor of any party hereto.
13. Entire A meat. The provisions hereof represent the entire agreement between the
parties In connection with the Property, and supersedes all prior and contemporaneous
agreements, representations or understandings regarding the same. This Agreement may
only be altered, amended, or rescinded by a duly executed written agnxment_
14. ABAlkable AM. This Agreement shall be construed and enforced in accordance with
the laws of the Commonwealth of Pennsylvania.
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15. Selerabilftr. If any provisions of this Agreement shall be determined by any court of
competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this
Agreement shall not be affected thereby, and each provision hereof shall be valid and
shall be enforced to the fullest extent permitted by law.
16. options and Headlnas. The captions and headings used in this Agreement are for
convenience only and have no significance on the interpretation of this Agreement.
17. Q smarts. This Agreement may be executed in any number of counterparts, tact
of which shall be an original and all of which together shall constitute one Agreement.
IN WMESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
ATTEST: LOWER ALLEN TOWNSMP
II,, By: Board of ?°mods nets
d ?. C
(A t) Secretary James IB Moran, Jr.
t
LOWER ALLEN TOWNSHIP IN 'rHE COURT Of COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
V. No. ?? SDo?7
r v
JAMES W. MORAN, 1R.
CIVIL ACTION - LAW
NOTICE TO DEFEND
TO: JAMES W. MORAN, JR.
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 the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone: (717) 249-3166
or
1-800-990-9108
Dommewi #: 15 71-9 1
NOTICIA
LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de
estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir
de la fecha de la demands y la notification. Usted debe presentar una apariencia escrita o en
persona o por abogado y archivar en la cone en forma escrita sus defensas o sus objeciones a las
demandas en contra de su persona. Sea avisado que si usted no se defiende, la cone tomara
medidas y puede entrar una orden contra usted sin previo aviso a notification y por cualquier
queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus
propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone: (717) 249-3166
or
1-800-990-9108
Document #: 15, 7179./
LOWER ALLEN TOWNSHIP IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
V. No.
JAMES W. MORAN, JR.
CIVIL ACTION - LAW
COMPLAINT
AND NOW, comes Plaintiff, Lower Allen Township, by and through its attorneys, Metzger
Wickersham, Knauss & Erb, P.C. and files the following cause of action:
I . Plaintiff, Lower Allen Township is a duly constituted Pennsylvania first-class township,
organized pursuant to the First-Class Township Code, Act of June 24, 1931, P.L. 1206, 53 P.S.
§55101 et. seq. and is located in Township Municipal Building, 1993 Hummel Avenue, Camp Hill,
(Lower Allen Township, Cumberland County) Pennsylvania 17011 (hereinafter "Township"),
2. Defendant, James W. Moran, Jr., is an adult individual, with residence at 1007 Burnt
House Road, Carlisle, Cumberland County, Pennsylvania 17013.
3. Defendant is the owner of Lots 31 and 32 on the Plan of Lots of Spring Lake Colony,
Cumberland County Plan Book 2, Page 112, by deed dated June 1, 1994, from James W. Moran, Sr.
and Violet R. Moran, his wife, parents of Defendant (hereinafter the "1994 Deed") recorded in
Cumberland County Deed Book 106, Page 405, also identified as 2225 Orchard Road and as Tax ID
Parcel No. 13-23-0549-165A, (hereinafter "Property").
4. Defendant is also the owner of Lot No. 23 on said Plan of Lots of Spring Lake Colony,
by deed from James W. Moran, Sr. and Violet R. Moran, his wife, by deed dated June 1, 1994, and
recorded in Cumberland County Deed Book 106, Page 407, abutting on the southerly side of Orchard
/lanurienl q 15-1-9.1
Road between the Property and Orchard Road, also identified as 2221 Orchard Road and as Tax Parcel
13-23-0549-165 (hereinafter "Lot 23").
5. Defendant currently has pending before the Township a Preliminary/Final Subdivision
Plan for the purpose of subdividing Lots 31 and 32 into Lots 31 and 32A (the "Subdivision Plan").
6. The 1994 Deed for Lots 31 and 32 contains a consolidated legal description of Lots 31
and 32 as the Property, not a separate description for each of said Lots.
7. By deed dated June 28, 1982, James W. Moran, Sr. and Violet R. Moran, his wife,
consolidated the separate descriptions of Lots 31 and 32 from Plan of Lots of the Spring Lake Colony
Plan of Lots into one consolidated legal description as evidenced in Cumberland County Deed Book V,
Vol. 29, Page 955 (the " 1982 Deed"). The 1982 Deed further stated that Lot 31 and 32 may not be
conveyed separately and must be conveyed together.
8. Although the 1994 Deed contained a consolidated legal description for Lots 31 and 32,
it did not refer to the restriction contained in the 1982 Deed that the lot may not be conveyed separately
and must be conveyed together.
9. Subsequent to the 1982 Deed, James W. Moran, Sr. and Violet R. Moran, his wife,
obtained a permit on July 1, 1982 for construction of an in-ground swimming pool and pool house
which overlapped consolidated Lot 31 on to Lot 32.
10. The Subdivision Plan identified Lots 31 and 32 as separate lots and not as a
consolidated lot. The Subdivision Plan also seeks to add on to Lot 31 the area of the encroachment of
the swimming pool and pool house on Lot 32 and create a new Lot 32-A with the remainder of Lot 32.
11. On October 15, 1997, Defendant obtained a building permit from Plaintiff to construct
a 1,072 square foot dwelling on Lot 32 on the Subdivision Plan on its northeastern corner. Pursuant to
Dwwnenr N: 156911.1 2
said building permit, the Defendant has constructed the dwelling which has been completed and
occupied without a Township Certificate of Occupancy.
12. Defendant executed a Declaration of Easement to provide cross-easements for access
and utilities between separate Lots 31 and 32 on the Subdivision Plan and Lot 23 in order to provide
access to Orchard Road and extension of utilities between Lots 23, 31 and 32 (the "Cross-Easement
Agreement")
13. By agreement dated February 23, 1998 (hereinafter "Agreement"), copy of which is
hereto attached, marked Exhibit "A" and made a part hereof, the parties agreed, inter alia, to the
following:
(a) Subdivision Plan Extension - the parties agreed to an extension of time for action by
the Township on the Subdivision Plan until May 31, 1998. In reliance on the
Agreement, the Subdivision Plan was approved on May 26, 1998 by the Board of
Commissioners of Lower Allen Township, subject to certain conditions.
(b) Defendant agreed to have the Subdivision Plan revised to reflect the consolidated Lots
31 and 32 as the Property with the creation of a subdivision of the property in to Lots
31 and 32A as shown on the Subdivision Plan. Defendant further agreed to revise the
Subdivision Plan to meet all comments of Township staff and Township engineers
currently outstanding which are as follows and further agreed to remove all stockpiles
of dirt and rocks placed by the Defendant on neighboring properties and within the
adjoining flood plain, restoring the ground by reseeding; and further Defendant agreed
to file said Revised Subdivision Plan at least fourteen (14) days prior to a Board of
Commissioners meeting. The Subdivision Plan was approved on May 26, 1998, by the
Board of Commissioners of Lower Allen Township.
(c) Defendant agreed to prepare for review by the Township a Revised Cross-Easement
agreement to reflect the consolidation of parts Lots 31 and 32 as the Property and the
proposed creation of Lot 32A. The Revised Cross-Easement Agreement was to provide
access for Lots 31 and 32A to Orchard Road, across Lot 23, and further to provide
utility easements between Lots 31, 32A and Lot 32. These agreements were
completed. Defendant agreed to record a copy with the Recorder of Deeds of
Cumberland County.
(d) Defendant further agreed that the use of the existing dwelling on the Property in the
area of original Lot 31 and a proposed dwelling, which would be Lot 32A, will both be
Dacnurmnr 0 : 156912.1 3
constructed and used solely as a single family detached dwellings. Neither dwelling
was to be used as a two-family or multi-family dwelling. Defendant agreed to make
any necessary modifications to the building situate on Lot 31 to eliminate the separate
apartments.
(e) Defendant still has failed to combine the units.
(f) Township agreed to issue an Certificate of Occupancy permit for the dwelling under
construction for which a building permit was issued on October 15, 1997, in the area of
proposed Lot 32A, subject to compliance with the Township Building Code and other
applicable regulations and after the approval and recording of the Revised Subdivision
Plan and Revised Deed, which documents, with recording information shall be
provided to the Township prior to the issuance of the Occupancy Permit. The
Township has not issued said Certificate of Occupancy because the afore-referenced
Revised Subdivision Plan and Revised Deed have not been recorded.
(g) Defendant further agreed to prepare and record a Revised Deed evidencing the new
separate legal descriptions for a new Lot 31 and new Lot 32A, pursuant to the Revised
Subdivision Plan. Said Revised Deed shall be recorded immediately after the recording
of the Revised Subdivision Plan with the understanding of all parties that these
recordations have not occurred.
14. On February 23, 1998, Defendant applied for a Certificate of Non-Conformance for the
property located at 2225 Orchard Road, Camp Hill, Pennsylvania 17011. Defendant claimed that the
property which is now located in the zoning district of R-1, Residential, had been a two unit apartment
with garage since 1954. Defendant Applicant provided affidavits from his parents, James W. Moran,
Sr., Violet R. Moran, his wife and from himself indicating that the property had been continuously
used as two-unit apartment since 1954. Based on the representations of the Defendant and his parents,
the Township Zoning Officer approved the Certificate of Non-Conformance on May 22, 1998.
COUNTI
BREACH OF CONTRACT
15. The averments of Paragraphs I through 14 are herein incorporated by reference.
Docunrret 9, 1569/? .1
16. Defendant has breached the Agreement of February 23, 1998 by failing to return the
use of Lot 31 to a single family home.
17. Defendant has allowed occupation of the new house at 2217 Orchard Road, Lot 32-A,
without a Township Certificate of Occupancy.
18. Defendant has breached the Agreement of February 23, 1998 by insisting on recording
subdivision plan, further revised, to eliminate the plan reference to the February 23, 1998 agreement.
19. These violations of the February 23, 1998 Agreement have prevented the recording of
the Revised Subdivision Plan and recording Revised Deed and the issuance of the Certificate of
Occupancy for the single family home on Lot 32-A.
WHEREFORE, Plaintiff requests this Honorable Court to order the Defendant to:
Specifically perform the obligations of the February 23, 1998 Agreement.
2. Be answerable in damages to the Township and to pay costs and attorneys fees of this
action.
3. Grant other such relief as fair and just.
COUNT II
FRAUD
20. The averments of Paragraphs I through 19 are herein incorporated by reference
21. Defendant has acted with fraud and deceit by inducing the Township to enter into the
Agreement and then refusing to perform the Agreement.
22. Defendant has acted fraudulently and deceptively in making representations upon which
the Township relied to induce the Township to enter into the Agreement.
Document 9. 156912.1 5
WHEREFORE, Plaintiff requests this Honorable Court to order the Defendant to:
I. Specifically perform the obligations of the February 23, 1998 Agreement.
2. Be answerable in damages to the Township and to pay costs and attorneys fees of this
action.
3. Grant other such relief as fair and just.
METZGER WICKERSHAM KNAUSS J& ERB, P.C
By: - z2z;?6 / 4-,-
Robert Yetter, Esquire
I.D. No. 06861
Steven P. Miner, Esquire
1. D. No. 38901
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 171 10-0300
(717) 238-8187
Attorneys for Plaintiff
Dated: It / % /6 , 1999.
Uncumeul 0: 15691? .1
VERIFICATION
I, Raymond E. Rhodes, Manager, of Lower Allen Township, being duly authorized to do so
hereby verify that the facts set forth in the foregoing Complaint are true and correct to the best of my
personal knowledge or information and belief. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities.
Date:
Raymond E. Rhodes
Do menl#: 136917.1 7
ci z
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cri
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SHERIFF'S RETURN - NOT FOUND
CASE NO: 1999-05824 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LOWER ALLEN TOWNSHIP
VS.
MORAN JAMES W JR
R. Thomas Kline Sheriff, who being duly sworn according
to law, says, that he made a diligent search and inquiry for the within
named defendant, to wit: MORAN JAMES W JR
but was unable to locate Him in his bailiwick. He therefore returns
the COMPLAINT
NOTICE
NOT FOUND , as to the within named defendant
MORAN JAMES W JR
ATTORNEY REQUESTED A NOT FOUND RETURN ON
9/27/99.
Sheriff's Costs: So answe
Docketing 18.00
Not Found Return 5.00 _
Affidavit .00 ?- ?
Surcharge 8.00 R? I omas ine, S eri
$3I-UU MOEETZGER99WWICKERSHAM
9/27/1
Sworn and subscribed before me
this ".day of
19__ql_ A.D.
ro on Lary
LOWER ALLEN TOWNSHIP IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
V. No. I R - S 8a 4 0".:
JAMES W. MORAN, JR.
CIVIL ACTION - LAW
ACCEPTANCE OF SERVICE
AND NOW, this _f day of GtWSgar, 1999, comes Bruce Bratton, Esquire, who
being sworn according to law, deposes and says he is the attorney for James W. Moran, Jr. in
the above-captioned matter; that on the above date he personally received a true and correct
copy of the Complaint filed in this case; and that this Affidavit may be used for filing with the
Court of Common Pleas of Cumberland County in verifying that service was made on the above
date.
i? /?jf
Bruce Bretton, Esquire
Sworn Td sub?ySigg,Pefore me
thisi day af:Aeter, 1999.
NOtAMAL SEAL
NP.NCY E. R<1PCH, C. P'J:A
Hcrinburg, DauPMn County. PA
ply Cnmmi,don EaPrm la'n Z?__-2Ch?.
Document #: 161938.1
4 1J7
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C\l 3
4
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LOWER ALLEN TOWNSHIP, CIVIL ACTION - LAW
Plaintiff,
No.: 99-5824 Civil
V.
JAMES W. MORAN, JR.
Defendant. JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter my appearance on behalf of LOWER ALLEN TOWNSHIP, Defendant on
the Counter-Claim. The Lower Allen Township is also represented by Steven Miner, Esquire,
Metzger, Wickersham, Knauss & Erb, as Plaintiff's in the original Complaint in the above-
captioned matter.
MARSHALL, DENNEHEY, WARNER,
COLEMAN AND GOGGIN
BY:
Robert G. Hanna, Jr., Equire
100 Pine Street, Fourth Floor
P.O. Box 803
Harrisburg, PA 17108-0803
I.D. No. 17890
(717) 231-3761
Attorneys for Lower Allen Township
Defendant in the Counter-Claim
DATE: 2- j,??
CERTIFICATE OF SERVICE
I, Robert G. Hanna, Jr., Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do
hereby certify that on this day of ?R ?, _, 2000, served a copy of the foregoing
document via First Class United States mail, postage prepaid as follows:
Steven P. Miner, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB
3211 North Front Street
P.O Box 5300
Harrisburg, PA 17110-0300
(Atty. for Plaintiff, Lower Allen Township)
Bruce F. Bratton, Esquire
MARTSOLF & BRATTON
2515 North Front Street
P.O. Box 12106
Harrisburg, PA 17108-2106
(Atty. for Defendant, James Moran)
Robert G. Hanna, Jr., Esquire
(Atty. for Lower Allen Township, Defendant
in Cross-Claim by Moran)
1- -
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LOWER ALLEN TOWNSHIP, CIVIL ACTION - LAW
Plaintiff,
No.: 99-5824 Civil
V.
JAMES W. MORAN, JR.
Defendant. JURY TRIAL DEMANDED
LOWER ALLEN TOWNSHIP'S PRELIMINARY OBJECTIONS
TO DEFENDANT MORAN'S CROSS-CLAIM
Defendant, Lower Allen Township, by its attorney, Robert G. Hanna, Jr., preliminarily
objects to Counter-Claimant's Cross-Claim, and in support thereof, avers the following:
Attached hereto and marked Exhibit "A" is a true and correct copy of Defendant's
Counter-Claim.
2. Counter-Claimant asserts in Parg. 38, a 42 U.S.C. § 1981 claim.
3. Counter-Claimant's 42 U.S.C. § 1981 claim requires factual assertions that
Plaintiff's right to make and enforce a contract was interfered with for racial or other class based
discriminatory reasons.
4. No factual allegations necessary to support a 42 U.S.C. § 1981 claim have been
pled.
5. Also in Parg. 38, Counter-Claimant asserts a 42 U.S.C. § 1985 claim which
requires factual assertions of racial or class based discrimination, none of which have been pled.
6. Also in Parg. 38, Counter-Claimant asserts 42 U.S.C. § 1983 Fifth Amendment
claim which requires factual allegations that plaintiffs property has been taken without just
compensation, none of which has been pled.
What has been pled is a breach of contract claim asserted by the Township as
Plaintiff, and responded to by way of Exhibit "A".
8. Also in Parg. 38 is a 42 U.S.C. § 1983 Fourteenth Amendment claim which
requires factual averments, describing and asserting, either a procedural due process or a
substantive due process claim or both. None of which have been pled.
9. This lawsuit is proof that Counter-Claimant is receiving procedural due process.
10. Factually, there are no allegations that the Counter-Claimant has property right
which has been impermissibly and arbitrarily interfered with for a purpose unrelated to a
legitimate government activity, the requirements of a substantive due process claim.
11. Factually, the Township has asserted in its Complaint, a breach of contract claim.
There is nothing constitutionally speaking about a breach of contract claim that automatically
triggers a substantive due process claim.
12. Paragraph 39 contains the additional language, "...and by the PA Constitution..."
the aforesaid reference in Parg. 39 does not identify the specifics of any violation of the
Pennsylvania Constitution, and to the extent it seeks damages is barred by governmental
immunity, 42 Pa.C.S. § 8541, et sea•
13. Paragraphs 39 and 40 do not appear to state a cause of action, rather on their face,
represent either challenges to the agreement entered into between the Township and Moran, and
thus should be raised in the form of New Matter, or Paragraphs39 and 40, refer to matters
unrelated to the original Complaint, and therefore, might be appropriate for a Complaint in
Equity. Normally, "deemed approved" actions are in the nature of an equitable claim for relief.
WHERFORE, Lower Allen Township, Defendant on the Counter-Claim, objects to
Plaintiff's Counter-Claim, and moves for the adoption and entry of its Order Dismissing the
Counter-Claim.
MARSHALL, DENNEHEY, WARNER,
COLEMAN AND GOGGIN
BY:I ?_ ? `I_)\
Robert G. Hanna, Jr., Esqui
100 Pine Street, Fourth Floor
P.O. Box 803
Harrisburg, PA 17108-0803
I.D. No. 17890
(717) 231-3761
Attorneys for Lower Allen Township
Defendant in the Counter-Claim
DATE: 2 --5.0 ?b
.-, ..... ... .... -.- --. ---- ..• uw,. wma ,uu tw"4
FEB- 3-00 TBU 8,54 P.04
LONER ALLEN TOWNSHIP, IN THP COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. _ CIVIL ACTION - LAW
JAMES W. MORAN, OR., s NO. 99-SS24
Defendant
ANSWR WITH HEw MATTER AND =)NTERCLAIM
Defendant James W. Moran, Jr., by and through hie attorneys,
MARTaOLF & SRATTON, responds to the Complaint filed in this matter,
making reference to the paragraph numbers therein, as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied. To the contrary, there is no plan or application
for subdivision approval submitted by the Defendant currently
pending or being.lawfully considered by Plaintiff Township. By way
of further answer and denial, Defendant's only plan ever submitted
to Plaintiff Township with respect to his property was approved
with conditions, which said conditions were never accepted by the
Defendant; therefore, b)1 law, such' application' for approval is
deemed to have been denied.
FEB- 3-00 THU 9:54 P.05
6. without admitting th? relevance of such allegation,
Defendant admits that the 1994 deed for the said lots does contain
a consolidated legal description. Any implication as to the effect
of ouch legal description constitutes a legal conclusion to which
no responsive pleading is required.
7. Admitted in part and denied in part. It is admitted that
a deed dated June 28, 1982 executed by James W. Moran, Sr. and
Violet R. Moran, his wife, appears in the Office of the Recorder of
Deeds at used Hook V. Volume 29, Page 955. Such document speaks
for itself, however, and any implications drawn from or
characterization of the contents of such document are denied.
g. Without admitting the relevance of any such allegation,
it is admitted that the 1994 deed contained no reference to any
restriction on separate conveyance of title of the parcels. Such
document, Defendant submits, speake for itself, however, and any
implication or mischaracterization of such document by the
Plaintiff's Complaint is denied.
9. After reasonable investigation, Defendant is without
sufficient information to form a belief as to the truth of the
allegations of Paragraph 9 of plaintiff's Complaint and such
allegations are, therefore, denied. Means of proof of such
allegations are demanded at the trial of this cause if relevant.
2
FEB- 3-00 MU 9:55 p 06
lo. The subdivision plan to which Plaintiff refers, being a
written instrument, speaks for itself and the allegations of
Paragraph 10, to the extent they contain implications, inferences
or mischaracterizations of ouch document, are denied.
11. Admitted in part and denied in part. it is admitted that
on oX about the date alleged, Defendant made application to
Plaintiff and Plaintiff issued a building permit to allow
construction of a dwelling unit on a portion of Defendant's
property known as Lot 32 on the Plan of Lots of Spring Lake Colony
but not on any lot depicted on the "Subdivision Plan, since such
plan had not been submitted and did not exist at the time of the
issuance of the building permit. Such allegation that the building
permit refers to any parcel of ground described on a "Subdivision
Plan" mentioned in Paragraph 5 of plaintiff's Complaint is,
therefore, denied. It is admitted that the Defendant has
constructed the dwelling in accordance with the plan issued and in
accordance with all applicable building codes or ordinances of the
Plaintiff.
12. Admitted in part and denied in part. It is admitted that
the Defendant, at the Plaintiff's request and/or demand, executed
a document in order to provide cross-easements for access and
utility use between separate lots or portions of Defendant's
preperty'l'ocated'in'Lower Allen Township. Defendant executed such
document, however, only upon the Plaintiff's threat to bring civil
or criminal actions against the Defendant if he did not submit a
3
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FEB- 3-00 THU 9;55
P. 07
subdivision plan and execute eu?h other documents, including the
easement agreement.
13. The agreement dated February 23, 1998, being a written
agreement, speaks for itself. By way of denial, however. Defendant
notes that there was no Exhibit ^A" attached to the Complaint as
served by Plaintiff. The written agreement, however, speaks for
itself and any implications, inferences or characterizations of its
content by the Plaintiff are denied. For example, it is expressly
denied that the allegation or statement contained in
Paragraph 13(e) is part of said written agreement, and the
allegation or statement contained in Paragraph 13(f) as to the
township's failure to issue a certificate of occupancy is not part
of the agreement.
14. Admitted.
Count I
Breach of Contract
15. The answers and responees contained in Paragraphs 1
through 14 hereof are incorporated herein by reference.
16. ' Denied. To the contrary, the document dated February 23,
1998 has not been breached by the Defendant; said document is or
may have been created as a result of undue duress and overreaching
by the Plaintiff and the obligation of the Defendant thereunder is,
therefore, void-and unenforceable; such document i,a impossible of
performance by the Defendant which the Plaintiff full well knew or
should have known at the time it was drafted and forced upon the
4
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FEB- 3-00 THU 9:56 P.08
Defendant. By way of further Jnswer and denial, the Plaintiff
Township lacked and lacks legal authority to enter into such type
of contract and/or to require Defendant to enter into such type of
contract, the action of the Township in requiring Defendant to
execute such a contract and/or to require Defendant's submission of
a subdivision plan for his properties is an g1tra vires act, and
the Township lacks and lacked any authority to unilaterally require
additional conditions to be imposed upon the subdivision plan and-
process.
17. Admitted in part and denied in part. It is admitted that
the home which was completed in strict conformity with the building
permit issued by the township on or about October 15, 1997 has been
occupied as a single-family dwelling. The implication in
Paragraph 17 of Plaintiff's Complaint that such occupancy has been
wrongful is denied, however. To the contrary, it is the Plaintiff
which has wrongfully refused to conduct final inspection of the
property and to issue a certificate of occupancy even though the
property has been built in strict conformity with the building
permit issued by. Plaintiff Township.
is. Admitted in part and denied in part. It is admitted that
the Defendant has refused to accept all of the conditions imposed
by Plaintiff Township with regard to the "Subdivision Plan". It in
deni-ed', however, that such failure to accept the cdnditions'is a
breach of the agreement of February 23, 1990 or that such breach of
5
FEB- 3-00 THUy 9;58 .. ... _....., ti.-.
P.09
agreement has caused any damag6a to the Plaintiff or that the
plaintiff has any cognizable claim as a result thereof.
19. Denied. Defendant expressly denies that he has in any.
way ever violated the terms of any lawful, binding agreement or
violated any of his obligations under the Municipalities Planning
Code, township ordinances or the like. It is expressly denied that
anything that the Defendant has done has "prevented the recording"
of any documents or has prevented the issuance of a certificate of
occupancy for a single-family home and after the lawful issuance of
a building permit by the Plaintiff.
WMRSFORE, Defendant respectfully requests that the
Plaintiffs Complaint be dismissed and that judgment be entered in
Defendants favor, together with costs of suit and reasonable
attorneys, tees as may be available under applicable Pennsylvania
or other law.
Count II
Fraud
20. The answers of Paragraphs i through 19 are hereby
incorporated herein by reference.
21. The allegation of Paragraph 21 constitutes a conclusion
of law to which no responsive pleading is required. To the extent
a response is required, Defendant denies that he has ever acted
with fzaudulent intent or in any. deceitful 'fashibn. To the
contrary, it has been the Plaintiff, acting through its agents,
employees, solicitors and others, who has issued permits and then
6
FEB-?3-00 MUY 9:57
P.10
denied the validity of such per6its and taken other steps in an
effort to unlawfully interfere with or to take the Defendant's
right to the free use and enjoyment of his property and to
otherwise violate the constitutional rights of the Defendant,
including the filing of the instant action to attempt to further
intimidate and pressure the Defendant to give up or waive his
protected property rights.
22. The allegation of Paragraph 22 constitutes a conclusion
of law to which no responsive pleading is required. To the extent
a response is required, Defendant expressly denies that he has ever
acted fraudulently or deceptively or made any false or deceptive
representatione to Plaintiff Township.
WHEREFORE, Defendant respectfully requests that the
Plaintiff's Complaint be diamissed and that judgment be entered in
Defendant's favor, together with costs of suit and reasonable
attorneys' fees as may be available under applicable Pennsylvania
or other law.
NEW MATTER
23. Plaintiff's Complaint fails to state a cause of action
upon which the relief requested can be granted.
24. On or about.October 15, 1997, Defendant applied for, paid
the. appropriate fees and otherwise lawfully sought the issuanceby
Plaintiff of a building.permit to build a single-family residence
7
FEB- 3-00 THU 9;58
F.11
on come of the property owned by him and which is the subject of
Plaintiff's Complaint.
25. On or about that same date, Plaintiff Township, acting
through its authorized agents, servants, employees, solicitors and
staff, issued a lawful permit for the construction of a single-
familr residence for which Defendant had applied.
26. Some weeks thereafter, the Plaintiff's representatives,
agents, solicitors and others approached the Defendant and demanded
that the Defendant prepare and submit a subdivision plan alleging
that the issuance of the building permit was accomplished
"in errorw.'
27. Defendant, as a show of good faith, entered into an
agreement to submit a subdivision plan with respect to his
property, even though the Plaintiff was aware of a prior deed
restriction disallowing further subdivision. (See Plaintiff's
Complaint, Paragraph 7.)
26. Although the said agreement refers to elimination of a
lawfully existing, non-conforming use as a two-unit residence as to
one previously constructed dwelling house, Defendant was advised by
the Plaintiff's own representatives that, if he could prove the
nonconformity with respect to such two-unit use, he would be
permitted to keep such nonconforming use as a matter of right,
29. On or about the same date as the date of said agreement,
Defendant submitted an application fpr a certificate of
nonconformance along with evidence and documentation as to the non-
e
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FEB- 3-00 THU 9:58 p,12
conforming use of such propertyIand the Plaintiff did, in fact,
issue ouch certificate of nonconformance for that property on or
about May 22, 1998.
30. As a result of the issuance of such certificate of
nonconformance by Plaintiff Township, Defendant understood and
Plaintiff agreed that the obligation" with respect to eliminating
the two-unit residential dwelling as expressed in the written
agreement were no longer valid but were amended by the issuance of
such certificate of nonconformance.
31. It was the Plaintiff who then insisted upon further
revisions to the then-pending subdivision plan and insisted on-
additional conditions for said approval of ouch subdivision plan to
include recording of documents which would, in effect, further have
removed or diminished the Defendant's rights to the use and
enjoyment of his property and which would have, in essence, meant
that the certificate of nonconformance issued by the Plaintiff was
meaningless and of no effect.
32. Defendant never accepted the conditions imposed by
Plaintiff Township on the approval of the subdivision plan.
33. Plaintiff's staff and solicitors had expressed' an
opinion, at or about the time of the issuance of the building
permit in October of 1997, that the mere consolidation of a legal
desLription in a• recorded dead did not, in fact, result i+t the
erasure of preexisting lot lines an appeared on the Plan of Lots of
Spring Lake Colony.
9
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FEB- 3-00 THU 9:59 P.13
34. There is no provision in the municipalities Planning Code
or in any other statute which grants authority to plaintiff
Township to enter into the agreement dated February 23, 1998 as a
means of attempting to extract from the Defendant, a property owner
within the township, rights which had been granted to him by
Plaintiff Township in the issuance of building permits and-
otherwise and such agreement is, therefore, unlawful and
unenforceable.
35. The issuance of the certificate of nonconformance with
respect to the two-unit dwelling situate on Lot 31 0£ the Plan of
Lots of Spring Lake Colony operated as an amendment of and
superseded the agreement which had been entered into in February of
1998 upon the insistence of the Plaintiff-
3 6. The answers and allegations of Paragraphs 1 through 35
are hereby incorporated herein by reference.
37. The acts and actions of Plaintiff Township, acting by and
through its supervisors, commissioners, employees, solicitors and
agents, has been an attempt and effort on the part of the Plaintiff
-? to deny the Defendant/Croseclaim plaintiff of his constitutionally
protected property rights without due process of law and without
authority of law to do so.
38. Such acts and actions taken by the Plaintiff, acting by
and through its supezvisors, commissioners, employees, solicitors
10
VLI VY/YY lY.JO IM LIV JLI LJJV J• .,l Ll. VVJY ,Y.? - ylv??
FEB- 3-00 THU 8:58 p,14
and agents, constitute a vidlation of the rights of the
Defendant /Cros scla im Plaintiff, as protected by Articles V and XIV
of the United States Constitution and by the Pennsylvania
Constitution, and thereby give rise to an action by the
Defendant/Crossclaim Plaintiff pursuant to 42 U.S.C. Sections 1982,
1983 and/or 1985.
39. In February of 1998, Defendant had also applied to
Plaintiff for a certificate of nonconformace as to a boarding house
on Lot 23 of the Spring Lake Colony plan and had submitted
documentation and evidence of such non-conforming use of the
dwelling house on such lot.
40 Plaintiff has never acted upon such application for non-
conformity certificate and such application is, therefore, deemed
to have been approved.
WHEREFORE, Defendant/Crossclaim Plaintiff demands (1) judgment
in his favor and against the Plaintiff/Crossclaim Defendant in such
amount as this Honorable court deems to be just under all of the
circumstances, an amount which the Defendant/Crossclaim Plaintiff
expects to be in excess of $10,000.00 and in excess of that amount
requiring reference to compulsory arbitration, (2) declaring that
the application submitted by Defendant for a certificate of non-
conformity as to the boarding house on Lot 23 of the spring Lake
-Colony plan is approvedl, and (3) awarding to the
Defendant/Crossclaim Plaintiff his reasonable attorneys' fees,
11
FEB-?3-00 THU 10:00 ? Y Y. _YYY
nRIPIC_A,TION
yy V LY
P. 18
I verify that the statements made in the attached pleading are
true and correct, partially upon personal knowledge and partially
upon my belief; to the extent language in the attached pleading is
that of my attorneys, I have relied upon my attorneys in making
this verification. I understand that false statements herein are
made subject to the penalties of 18 Pa. C.S. Section 4904 relating
to unworn falsification to authorities.
,01ames W. Moran, Jr.
UL/UVIVU 1I.VV VA ILU JLI 4VUU Jl „W,. bVf1,Va yy y??
FEB- 3-00 THU 10:01 P.17
OMZ IFICATE OF SERVICE
I hereby certify that I today served a true and correct copy
of the foregoing Answer with New Matter and Counterclaim, by
placing the same in the'U.S. mail, postage prepaid, addressed to:
Steven P. Miner, Esquire
METZGER, WICKERSHAM, KN USS & ERB
3211 North Front Street
P. O. Box 5300
Fiarriaburg, PA g17
1 JA,o O o
Date 2
:ratton., Bsqu re
CERTIFICATE OF SERVICE
1, Robert G. Hanna, Jr., Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do
hereby certify that on this 7 day of 2000, served a copy of the foregoing
document via First Class United States mail, postage prepaid as follows:
Steven P. Miner, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB
3211 North Front Street
P.O Box 5300
Harrisburg, PA 17110-0300
(Atty. for Plaintiff, Lower Allen Township)
Bruce F. Bratton, Esquire
MARTSOLF & BRATTON
2515 North Front Street
P.O. Box 12106
Harrisburg, PA 17108-2106
(Atty. for Defendant, James Moran)
Robert G. Hanna, Jr., Esqui
(Atty. for Lower Allen Township, Defendant
in Cross-Claim by Moran)
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LOWER ALLEN TOWNSHIP, CIVIL ACTION - LAW
Plaintiff,
V.
No.: 99-5824 Civil
JAMES W. MORAN, JR.
Defendant. JURY TRIAL DEMANDED
LOWER ALLEN TOWNSHIP'S AMENDED PRELIMINARY OBJECTIONS
TO DEFENDANT MORAN'S COUNTER-CLAIM
Counter-Claim Defendant Lower Allen Township by its Attorney, Robert G. Hanna, Jr.,
Esquire, preliminarily objects to Defendant Moran's Counter-Claim and in support thereof avers
the following.
1. Attached hereto and marked Exhibit "A" is a true and correct copy of Defendant's
Counter-Claim.
2. Counter-Claimant asserts in Parg. 38, a 42 U.S.C. § 1981 claim.
3. Counter-Claimant's 42 U.S.C. § 1981 claim requires factual assertions that
Plaintiff's right to make and enforce a contract was interfered with for racial or other class based
discriminatory reasons.
4. No factual allegations necessary to support a 42 U.S.C. § 1981 claim have been
pled.
5. Also in Parg. 38, Counter-Claimant asserts a 42 U.S.C. § 1985 claim which
requires factual assertions of racial or class based discrimination, none of which have been pled.
6. Also in Parg. 38, Counter-Claimant asserts 42 U.S.C. § 1983 Fifth Amendment
claim which requires factual allegations that plaintiffs property has been taken without just
compensation, none of which has been pled.
7. What has been pled is a breach of contract claim asserted by the Township as
Plaintiff, and responded to by way of Exhibit "A".
8. Also in Parg. 38 is a 42 U.S.C. § 1983 Fourteenth Amendment claim which
requires factual averments, describing and asserting, either a procedural due process or a
substantive due process claim or both. None of which have been pled.
9. This lawsuit is proof that Counter-Claimant is receiving procedural due process.
10. Factually, there are no allegations that the Counter-Claimant has property right
which has been impermissibly and arbitrarily interfered with for a purpose unrelated to a
legitimate government activity, the requirements of a substantive due process claim.
11. Factually, the Township has asserted in its Complaint, a breach of contract claim.
There is nothing constitutionally speaking about a breach of contract claim that automatically
triggers a substantive due process claim.
12. Paragraph 39 contains the additional language, "...and by the PA Constitution..."
the aforesaid reference in Parg. 39 does not identify the specifics of any violation of the
Pennsylvania Constitution, and to the extent it seeks damages is barred by governmental
immunity, 42 Pa.C.S. § 8541, et sec.
13. Paragraphs 39 and 40 do not appear to state a cause of action, rather on their face,
represent either challenges to the agreement entered into between the Township and Moran, and
thus should be raised in the form of New Matter, or Paragraphs39 and 40, refer to matters
unrelated to the original Complaint, and therefore, might be appropriate for a Complaint in
Equity. Normally, "deemed approved" actions are in the nature of an equitable claim for relief.
WHERFORE, Lower Allen Township, Defendant on the Counter-Claim, objects to
Plaintiff's Counter-Claim, and moves for the adoption and entry of its Order Dismissing the
Counter-Claim.
MARSHALL, DENNEHEY, WARNER,
COLEMAN AND GOGGIN
BY??\
Robert G. Hanna, Jr., Esquire
100 Pine Street, Fourth Floor
P.O. Box 803
Harrisburg, PA 17108-0803
I.D. No. 17890
(717) 231-3761
Attorneys for Lower Allen Township
Defendant in the Counter-Claim
DATE: 2? / I t,
, FEB- 3-00 THU 8:54 r.u4
LOWER ALLEN TOWNSHIP, IN THE COURT OF COMMON PLE1"6
plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
JAMES K. KORAN, JR.? s NO. 99-5024
Defendant
?p - - TTE CLAIM
Defendant James W. Moran, Jr., by and through hie attoraeys,
MARTSOLP & URATTON, responds to the Complaint filed in this matter,
making reference to the paragraph numbers therein, as followst
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied. To the contrary, there is no plan or application
for subdivision approval submitted by the Defendant currently
pending or being.lawfully considered by Plaintiff Township. By way
of further answer and denial, Defendant's only plan ever submitted
to Plaintiff Township with respect to his property was approved
with conditions, which said conditions were never accepted by the
Defendant; therefore, bl1 law, such' apglication'for approval in
deemed to have been denied.
FEB- 3-00 THU 8:54
P. 05
6. Without admitting th& relevance of much allegation,
Defendant admits that the 1994 deed for the said lots does contain
a eoneolidated legal description. Any implication as to the effect
of such legal description constitutes a legal conclusion to which
no responsive pleading is required.
7. Admitted in part and denied iu part. it is admitted that
a deed dated June 28, 1982 executed by James W. Moran, Sr. and
Violet R. Moran, him wife, appears in the office of the Recorder of
Deeds at Peed Rook V, Volume 29, Page 955. Such document speaks
for itself, however, and any implications drawn from or
characterization of the contents of such document are denied.
a. Without admitting the relevance of any such allegation,
it is admitted that the 1994 deed contained no reference to any
restriction on separate conveyance of title of the parcels. Such
document, Defendant submits, speaks for itself, however, and any
implication or miecharacterization of such document by the
Plaintiff's Complaint is denied.
9. After reasonable investigation, Defendant is without
sufficient information to form a belief as to the truth of the
allegatione of Paragraph 9 of Plaintiff's Complaint and such
allegations are, therefore, denied. Means of proof of such
allegations are demanded at the trial of this cause if relevant.
2
v FEB- 3-00 THU 8:55 P.08
lo. The subdivision plan Co which Plaintiff refers, being a
written instrument, speaks for itself and the allegations of
Paragraph 10, to the extent they contain implications, inferences
or miseharacterizations of such document, are denied.
11. Admitted in part and denied in part. It is admitted that
on ov about the date alleged, Defendant made application to
Plaintiff and Plaintiff issued a building permit to allow
construction of a dwelling unit on a portion of Defendant's
property known as Lot 32 on the Plan of Lots of Spring Lake Colony
but not on any lot depicted on the "Subdivision Plan' since such
plan had not been submitted and did not exist at the time of the
issuance of the building permit. Such allegation that the building
permit refers to any parcel of ground described on a "Subdivision
Plan" mentioned in Paragraph 5 of Plaintiff's Complaint is,
therefore, denied. it is admitted that the Defendant has
constructed the dwelling in accordance with the plan issued and in
accordance with all applicable building codes or ordinances of the
Plaintiff.
12. Admitted in part and denied in part. It is admitted that
the Defendant, at the Plaintiff's request and/or demand, executed
a document in order to provide cross-easements for access and
utility use between separate lots or portions of Def endant's
property, located in•Lower Allen Township. Defendant executed 6uch
document, however, only upon the Plaintiff Ia threat to bring civil
or criminal actions against the Defendant if he did net submit a
3
FEB-.3-00 1HUr?9:55 -.. - P.07
subdivision plan and execute su6h other documents, including the
easement agreement.
13. The agreement dated February 23, 1998, being a written
agreement, speaks for itself. By way of denial, however. Defendant
notes that there was no Exhibit "A" attached to the Complaint as
served by Plaintiff. The written agreement; however, speaks for
itself and any implications, inferences or characterizations of its
content by the Plaintiff are denied. For example, it in expressly
denied that the allegation or statement contained in
paragraph 13(e) is part of said written agreement, and the
allegation or statement contained in Paragraph 13(f) as to the
township"e failure to issue a certificate of oocupanry is not part
of the agreement.
14. Admitted.
count I i
Br h
15. The answers and responses contained in Paragraphs 1
through 14 hereof are incoz-porated herein by reference.
16. " Denied. To the contrary, the document dated February 23,
1998 has not been breached by the Defendant; said document is or j
may have been created as a result of undue duress and overreaching 1
by the Plaintiff and the obligation of the Defendant thereunder is, ?f
therefore, void-and unenforceable; such document is impossible of
performance by the Defendant which the Plaintiff full well knew or S`
should have known at the time it wan drafted and forced upon the
4
FEB- 3-00 THU 9:60
r. uo
Defendant. By way of further Jnswer and denial, the Plaintiff
Township lacked and lacks legal authority to enter into such type
of contract and/or to require Defendant to enter into such type of
contract, the action of the Township in requiring Defendant to
execute such a contract and/or to require Defendaont's submission of
a subdivision plan for his properties is an Etltra vires act, and
the Township lacks and lacked any authority to unilaterally require
additional conditions to be imposed upon the subdivision plan and-
Process.
17. Admitted in part and denied in part. It is admitted that
the home which was completed in strict conformity with the building
perml.t'iasued by the township on or about October 15, 1997 has been
occupied as a single-family dwelling. The implication in
Paragraph 17 of Plaintiff's complaint that such occupancy has been
wrongful is denied, however. To the contrary, it is the Plaintiff
which has wrongfully refused to conduct final inspection of the
Property and to issue a certificate of occupancy even though the
property has been built in strict conformity with the building
permit issued by. Plaintiff Township.
19. Admitted in part and denied in part. It is admitted that
the Defendant has refused to accept all of the conditions imposed
by Plaintiff Township with regard to the "Subdivision Plan". it is
dented. 'however. that such failure to abcdpt the cdnditions'is a
breach of the agreement of February 23, 1996 or that ouch breach of
5
FEB- 3-00 THU 9:56
r. Ua
agreement has caused any damaghka to the Plaintiff or that the
Plaintiff has any cognizable claim as a result thereof.
19. Denied. Defendant expressly denies that he has in any.
way ever violated the terms of any lawful, binding agreement or
violated any of his obligations under the Municipalities Planning
Code, township ordinances or the like. It is expressly denied that
anything that the Defendant has done has •prevented the recording"
of any documents or has prevented the issuance of a certificate of
occupancy for a single-family home and after the lawful issuance of
a building permit by the Plaintiff.
WMRBFORE, Defendant respectfully requests that the
Plaintiff's Complaint be dismissed and that judgment be entered in
Defendant's favor, together with costs of suit and reasonable
attorneys' fees as may be available under applicable Pennsylvania
or other law.
Count II
Fraud
20. The answers of Paragraphs 1 through 19 are hereby
incorporated herein by reference.
21. The allegation of Paragraph 21 constitutes a conclusion
of law to which no responsive pleading is required. To the extent
a response is required, Defendant denies that he has ever acted
with £,raudulent intent or in any. deceitful ' fashion. To the
contrary, it has been the Plaintiff, acting through its agents,
employees, solicitors and others, who has issued permits and then
6
FEB- 3-00 IRU U:Sr
denied the validity of such permits and taken other steps in an
effort to unlawfully interfere with or to take the Defendant's
right to the free use and enjoyment of his property and to
otherwise violate the constitutional rights of the Defendant,
including the filing of the instant action to attempt to further
intimidate and pressure the Defendant to give up or waive his
protected property rights.
22. The allegation of paragraph 22 constitutes a conclusion
of law to which no responsive pleading is required. To the extent
a response is required, Defendant expressly denies that he has ever
acted fraudulently or deceptively. or made any false or deceptive
representations to Plaintiff Township.
WHEREFORE, Defendant respectfully requests that the
Plaintiff's Complaint be dismissed and that judgment be entered in
Defendant's favor, together with costs of suit and reasonable
attorneys' fees as may be available under applicable Pennsylvania
or other law.
NEW MA B
23. PlaintifE's Complaint fails to state a cause of action
upon which the relief requested can be granted.
24. on or about.october 15, 1997, Defendant applied for, paid
the. appropriate fees and otherwise lawfully sought the issuance' by
Plaintiff of a building.permit to build a single-family residence
7
FEB- 3-00 'MU 9:58
P. it
on coma of the property owned by him and which is the subject of
plaintiff's Complaint.
.25. On or about that same date, Plaintiff Township, acting
through its authorized agents, servants, employees, solicitors and
staff, issued a lawful permit for the construction of a single-
family residence for which Defendant had applied.
26. Some weeks thereafter, the Plaintiff's representatives,
agents, solicitors and others approached the Defendant and demanded
that the Defendant prepare and submit a subdivision plan alleging
that the issuance of the building permit was accomplished
"in errorw.'
27. Defendant, as a show of good faith, entered into an
agreement to submit a subdivision plan with respect to his
property, even though the Plaintiff was aware of a prior deed
restriction disallowing further subdivision. (See Plaintiff's
Complaint, Paragraph 7.)
26. Although the said agreement refers to elimination of a
lawfully existing, non-conforming use ae a two-unit residence as to
one previously constructed dwelling house, Defendant was advised by
the Plaintiff's own representatives that, if he could prove the
nonconformity with respect to such two-unit use, he would be
permitted .'to keep such nonconforming use as a matter of right,
29.. on or about the same date as the date of said agreement,
Defendant submitted an application fpr a certificate of
nonconformance along with evidence and documentation as to the non-
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FEB- 3-00 THU 9:5B
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conforming use of such property and the plaintiff did, in fact,
issue such certificate of nonconformance for that property on or
about May 22, 1998.
30, As a result of the issuance of such certificate of
nonconformance by plaintiff 'township, Defendant understood and
plaintiff agreed that the obligations with respect to eliminating
the two-unit residential dwelling as expressed in the written
agreement ware no longer valid but were amended by the issuance of
such certificate of nonconformance.
31. It was the plaintiff who then insisted upon further
revisions to the then-pending subdivision plan and insisted on.
additional conditions for said approval of such subdivision plan to
include recording of documents which would, in effect, further have.
removed or diminished the Defendant's rights to the use and
enjoyment of his property and which would have, in essence, meant
that the certificate of nonconformance issued by the plaintiff was
meaningless and of no effect.
32. Defendant never accepted the conditions imposed by
plaintiff 'township on the approval of the subdivision plan.
33. Plaintiff's staff and solicitors had expressed* an
opinion, at or about the time of the issuance of the building
permit in October of 1997, that the mere consolidation of a legal
'desbription in a' recorded dead did' not," in fact, result in the
erasure of preexisting lot lines as appeared on the Plan of Lots of
Spring Lake Colony.
9
... FEB- 3-00 THU 9:59
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34. There is no provision inn the municipalities Planning Code
or in any other statute which grants authority to Plaintiff
Township to enter into the agreement dated February 23, 1990 as a
means of attempting to extract from the Defendant, a property owner
within the township, rights which had been granted to him by
Plaintiff Township in the issuance of building permits and-
otherwise and such agreement is, therefore, unlawful and
unenforceable.
35. The issuance of the certificate of nonconformance with
respect to the two-unit dwelling situate on Lot 31 of the Plan of
Lote of Spring Lake Colony operated as an amendment of and
superseded the agreement which had been entered into in February of
1998 upon the insistence of the Plaintiff.
COUNTERCLAIM
36. The answers and allegations of Paragraphs 1 through 35
are hereby incorporated herein by reference.
37. The acts and actions of Plaintiff Township, acting by and
through its supervisors, commissioners, employees, solicitors and
agents, has been an attempt and effort on the part of the Plaintiff
to deny the Defendant/Crossclaim Plaintiff of his constitutionally
protected property rights without due process of law and without
authority of law to do so.
36. Such acts and actions taken by the Plaintiff, acting by
and through its supervisors, commissioners, employees, solicitors
10
FEB- 3-00 THU 8:58
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and agents, constitute a vidlation of the rights of the
Defendant/Crossclaim Plaintiff, as protected by Articles V and xIV
of the United States Constitution and by the Pennsylvania
constitution, and thereby give rise to an action by the
Defendant/Croseclaim Plaintiff pursuant to 42 U.S.C. Sections 1981,
1983 and/or 1985.
39. In February of 1998, Defendant had also applied to
Plaintiff for a certificate of nonconformace as to a boarding house
on Lot 23 of the Spring Lake Colony plan and had submitted
documentation and evidence of such non-conforming use of the
dwelling house on such lot.
40 Plaintiff hoe never acted upon ouch application for non-
conformity certificate and such application is, therefore, deemed
to have been approved.
WHEREFORE, Defendant /Crossclaim Plaintitf demands (1) judgment
in his favor and against the Plaintiff/crossclaim Defendant in such
amount as thin Honorable Court deems to be just under all of the
circumstances, an amount which the Defendant/Crossclaim Plaintiff
expects to be in excess of $10,000.00 and in excess of that amount
requiring reference to compulsory arbitration, (z) declaring that
the application submitted by Defendant for a certificate of non-
conformity as to the boarding house on Lot 23 of the spring Lake
-Colony plan is approved, and (3) awarding to the
Defendant/Crossclaim Plaintiff his reasonable attorneys, fees,
11
FEB- 3-00 TAU 10:00
vnRIPICATZOx
P.18
I verify that the statements made in the attached pleading are
true and correct, partially upon personal knowledge and partially
upon my beliefi to the extent language in the attached pleading is
that of my attorneys, i have relied upon my attorneys in making
this verification. I understand that false statements herein are
made subject to the penalties of 18 Pa. C.S. Section 4904 relating
to unworn falsification to authorities.
amen W. Moran, Jr.
. FFH- 3-00 TNU 10:01 r.ii
, CER2:IFICATE OF SERVICE
I hereby certify that I today served a true and correct copy
of the foregoing Answer with New Matter and Counterclaim, by
placing the same in the'U.S. mail, postage prepaid, addressed to:
Steven P. Miner, Esquire
METZORR, NICKERSMM, IMUSS & FRB
3211 North Front Street
P. O. Box 5300
F[arzieburg, PA 17
Date 2l Jqa O U _
B ce F. ratton, Eegu re
CERTIFICATE OF SERVICE
I, Robert G. Hanna, Jr., Esquire, of Marshall, Dennehcy, Warner, Coleman & Goggin, do
hereby certify that on this 7 day of 2000, served a copy of the foregoing
document via First Class United States mail, postage prepaid as follows:
Steven P. Miner, Esquire
METZGER, WICKERSHAM, KNAUSS & 111W
3211 North Front Street
P.O Box 5300
Harrisburg, PA 17110-0300
(Atty. for Plaintiff, Lower Allen Township)
Bruce F. Bratton, Esquire
MARTSOLF & BRA ITON
2515 North Front Street
P.O. Box 12106
Harrisburg, PA 17108.2106
(Atty. for Defendant,.hunes Moran)
Itobert G. Hanna, Jr., Esqui
(Atty. for Lower Allen Township, Defendant
in Cross-Claim by Moran)
VERIFICATION
ROBERT G. HANNA, JR., ESQUIRE, Attorney for Defendants,
verifies that the facts set forth in foregoing document are true
to the best of his knowledge, information and belief. If the
above statements are not true, the deponent is subject to the
penalties of 18 Pa.C.S. 54904 relating to unsworn falsification to
authorities.
ROBERT G. HANNA, ESQUIRE
CERTIFICATE OF SERVICE
I, Robert G. Hanna, Jr., Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do
hereby certify that on this 1'k-- day of '?N .? , 2000, served a copy of the foregoing
document via First Class United States mail, postage prepaid as follows:
Steven P. Miner, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB
3211 North Front Street
P.O Box 5300
Harrisburg, PA 17110-0300
(Atty. for Plaintiff Lower Allen Township)
Bruce F. Bratton, Esquire
MARTSOLF & BRATTON
2515 North Front Street
Y.O. Box 12106
Harrisburg, PA 17108-2106
(Atty. for Defendant, James Moran)
Robert G. Hanna, Jr., Esquire
(Atty. for Lower Allen Township,?efendant
in Cross-Claim by Moran)
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and sutmitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next ArgLzent Court.
CAPTION OF CASE
(entire caption must be stated in full)
LOWER ALLEN TOWNSHIP
VS.
JAMES W. MORAN, JR.
(Plaintiff)
(Defendant)
No.# 99-5824 Civil
No. Civil 19
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's
demurrer to complaint, etc.):
Praecipe to List Preliminary Objections for Argument
2. Identify counsel who will argue case:
(a) for plaintiff: Bruce F. Bratton, Esq.
Address: 2515 North Front Street, P.O. Box 12106,
Harrisburg, PA 17108
(b) for defendant: (In Counter-Claim) Robert G. Hanna, Jr., Esq.
Address: 100 Pine St., 4th Flr., P.O. Box 803, Hbg., PA
17108
and: Steven P. Miner, Esq., 3211 North Front St., P.O. Box 5300,
3. I will notify all parties in writing within two days that this case • PA 17110
been listed for argument.
4. Argument Court Date:
Must be filed by May 31,
Dated: 3 - 29 - Z'I,,_ ?
2000 for June Argument List.
A?? for?N--?,ter-
Claim Defendant
CERTIFICATE OF SERVICE
I, Robert G. Hanna, Jr., Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do
hereby certify that on thisZ-7 day of 2000, served a copy of the Praecipe
for Listing Case for Argument via First Class United States mail, postage prepaid as follows:
Steven P. Miner, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB
3211 North Front Street
P.O Box 5300
Harrisburg, PA 17110-0300
(Atty. for Plaintiff, Lower Allen Township)
Bruce F. Bratton, Esquire
MARTSOLF & BRAT TON
2515 North Front Street
P.O. Box 12106
Harrisburg, PA 17108-2106
(Atty. for Defendant, James Moran)
Robert G. Hanna, Jr., L-
4-c--(Atty. for Lower Allen Township, Defendant
in Cross-Claim by Moran)
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LOWER ALLEN TOWNSHIP
PLAINTIFF
V.
JAMES W. MORAN, JR.,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
1 x.14
99 5924 CIVIL TERM
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S
COUNTERCLAIM
BEFORE BAYLEY, J. AND OILER, J.
ORDER OF COURT
AND NOW, this ,*" day of July, 2000, IT IS ORDERED that the
counterclaim filed by James W. Moran, Jr., against Lower Allen Township, IS
DISMISSED.
By the Court,
Robert G. Hanna, Jr., Esquire
For Plaintiff
Bruce F. Bratton, Esquire
For Defendant
:saa
Edgar B. Bayley, J."
00
C i`Y Y
LOWER ALLEN TOWNSHIP,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
JAMES W. MORAN, JR.,
DEFENDANT
99-3824 CIVIL TERM
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S
COUNTERCLAIM
BEFORE BAYLEY, J. AND OILER, J.
OPINION AND ORDER OF COURT
Bayley, J., July 5, 2000:--
Defendant, James W. Moran, Jr., is the owner of lots 31 and 32 on a plan of lots
for Spring Lake Colony in Lower Allen Township. On February 23, 1998, plaintiff,
Lower Allen Township, and defendant entered into a written agreement regarding these
lots. The Township instituted this suit on September 21, 1999, to specifically enforce
that agreement and for collateral damages and attorney fees. Defendant filed an
answer with new matter and a counterclaim. In the counterclaim, he alleges a violation
of his rights under 42 U.S.C. § 1981, 1983, 1985 and nonspecific violations of his rights
under the constitution of Pennsylvania. Pursuant to Pa. Rule of Civil Procedure
1028(a)(4), the Township filed preliminary objections to the counterclaim, which were
briefed and argued on May 31, 2000.
In its preliminary objections, the Township avers that defendant's counterclaim
must be dismissed in its entirety for failure to state a claim upon which relief can be
99-3824 CIVIL TERM
granted.
Plaintiff avers in its complaint, inter alia:
5. Defendant currently has pending before the Township a
Preliminary/Final Subdivision Plan for the purpose of subdividing Lots 31
and 32 into Lots 31 and 32A (the 'Subdivision Plan').
6. The 1994 Deed for Lots 31 and 32 contains a consolidated legal
description of Lots 31 and 32 as the Property, not a separate description
for each of said Lots.
7. By deed dated June 28, 1982, James W. Moran, Sr. and Violet
R. Moran, his wife, consolidated the separate descriptions of Lots 31 and
32 from Plan of Lots of the Spring Lake Colony Plan of Lots into one
consolidated legal description as evidenced in Cumberland County Deed
Book V, Vol. 29, Page 955 (the'1982 Deed'). The 1982 Deed further
stated that Lot 31 and 32 may not be conveyed separately and must be
conveyed together.
8. Although the 1994 Deed contained a consolidated legal
description for Lots 31 and 32, it did not refer to the restriction contained
in the 1982 Deed that the lot may not be conveyed separately and must
be conveyed together.
9. Subsequent to the 1982 Deed, James W. Moran, Sr. and Violet
R. Moran his wife, obtained a permit on July 1, 1982 for construction of an
in-ground swimming pool and pool house which overlapped consolidated
Lot 31 on to Lot 32.
10. The Subdivision Plan identified Lots 31 and 32 as separate lots
and not as a consolidated lot. The Subdivision Plan also seeks to add on
to Lot 31 the area of the encroachment of the swimming pool and pool
house on Lot 32 and create a new Lot 32-A with the remainder of Lot 32.
11. On October 15, 1997, Defendant obtained a building permit
from Plaintiff to construct a 1,072 square foot dwelling on Lot 32 on the
Subdivision Plan on its northeastern corner. Pursuant to said building
permit, the Defendant has constructed the dwelling which has been
completed and occupied without a Township Certificate of Occupancy.
12. Defendant executed a Declaration of Easement to provide
cross-easements for access and utilities between separate Lots 31 and 32
on the Subdivision Pan and Lot 23 in order to provide access to Orchard
Road and extension of utilities between Lots 23, 31 and 32 (the 'Cross-
Easement Agreement').
13. By agreement dated February 23, 1998 (herein
'Agreement'), copy of which is hereto attached, marked Exhibit'A'
-2-
99-3824 CIVIL TERM
and made a part hereof, the parties agreed, inter alia, to the
following: (Emphasis added.)
(a) Subdivision Plan Extension - the parties agreed to an
extension of time for action by the Township on the Subdivision
Plan until May 31, 1998. In reliance on the Agreement, the
Subdivision Plan was approved on May 26, 1998 by the Board of
Commissioners of Lower Allen Township, subject to certain
conditions.
(b) Defendant agreed to have the Subdivision Plan revised
to reflect the consolidated Lots 31 and 32 as the Property with
the creation of a subdivision of the property in to Lots 31 and
32A as shown on the Subdivision Plan. Defendant further
agreed to revise the Subdivision Plan to meet all comments of
Township staff and Township engineers currently outstanding
which are as follows and further agreed to remove all stockpiles of
dirt and rocks placed by the Defendant on neighboring properties
and within the adjoining flood plain, restoring the ground by
reseeding; and further Defendant agreed to file said Revised
Subdivision Plan at lease fourteen (14) days prior to a Board of
Commissioners meeting. The Subdivision Plan was approved on
May 26, 1998, by the Board of Commissioners of Lower Allen
Township. (Emphasis added.)
(c) Defendant agreed to prepare for review by the Township a
Revised Cross-Easement agreement to reflect the consolidation of
parts Lots 31 and 32 as the Property and the proposed creation of
Lot 32A. The Revised Cross-Easement Agreement was to provide
access for Lots 31 and 32A to Orchard Road, across Lot 23, and
further to provide utility easements between Lots 31, 32A and Lot
32. These agreements were completed. Defendant agreed to
record a copy with the Recorder of Deeds of Cumberland County.
(d) Defendant further agreed that the use of the existing
dwelling on the Property in the area of original Lot 31 and a
proposed dwelling, which would be Lot 32A, will both be
constructed and used solely as a single family detached
dwellings. Neither dwelling was to be used as a two-family or
multi-family dwelling. Defendant agreed to make any necessary
modifications to the building situate on Lot 31 to eliminate the
separate apartments. (Emphasis added.)
(e) Defendant still has failed to combine the units.
(f) Township agreed to issue an [sic] Certificate of Occupancy
-3-
99-3824 CIVIL TERM
permit for the dwelling under construction for which a building
permit was issued on October 15, 1997, in the area of proposed
Lot 32A, subject to compliance with the Township Building Code
and other applicable regulations and after the approval and
recording of the Revised Subdivision Plan and Revised Deed,
which documents, with recording information shall be provided to
the Township prior to the issuance of the Occupancy Permit. The
Township has not issued said Certificate of Occupancy because
the afore-referenced Revised Subdivision Plan and Revised Deed
have not been recorded.
(g) Defendant further agreed to prepare and record a
Revised Deed evidencing the new separate legal descriptions
for a new Lot 31 and new Lot 32A, pursuant to the Revised
Subdivision Plan. Said Revised Deed shall be recorded
immediately after the recording of the Revised Subdivision
Plan with the understanding of all parties that these
recordations have not occurred.
14. On February 23, 1998, Defendant applied for a Certificate of
Non-Conformance for the property located at 2225 Orchard Road,
Camp Hill, Pennsylvania 17011. Defendant claimed that the property
which is now located in the zoning district of R-1, Residential, had been a
two unit apartment with garage since 1954. Defendant Applicant provided
affidavits from his parents, James W. Moran, Sr., Violet R. Moran, his wife
and from himself indicating that the property had been continuously used
as two-unit apartment since 1954. Based on the representations of the
Defendant and his parents, the Township Zoning Officer approved
the Certificate of Non-Conformance on May 22, 1998. (Emphasis
added.)
The agreement entered into between plaintiff and defendant on February 23,
1998, contains the following clauses:
11. Release. Each party releases the other, its elected officials,
appointed officials, and employees, from any liability or claim arising from
and as a result of any action that either party may have against the other
concerning the Property in connection with the Cross-Easement
Agreement, the Subdivision Plan, the issuance of the 1997 building permit
for the dwelling on the Property, or the use of the existing dwelling on the
Property. This release shall be a complete release as to the above
-4-
99-3824 CIVIL TERM
matters, provided, that the parties comply with the terms of this
Agreement.
13. Entire Agreement. The provisions hereof represent the entire
agreement between the parties in connection with the Property, and
supersedes all prior and contemporaneous agreements, representations
or understandings regarding the same. This Agreement may only be
altered, amended, or rescinded by a duly executed written agreement.
The averments in defendant's counterclaim can be summarized as follows
Defendant (counterclaim plaintiff) owns three contiguous lots in Lower Allen Township,
designated on a plan of lots of Spring Lake Colony as Nos. 23, 31, and 32. Prior to
1997, a boarding house was constructed on Lot 23 and a two-unit apartment building
on Lot 31. Both of these uses are non-conforming uses under the present Township's
zoning ordinance. In October of 1997, defendant received a building permit to
construct a single-family house upon Lot 32. He was later advised by the Township
that the permit had been issued "in error," because there was no subdivision plan.
Defendant had already started construction of a house on Lot 32. The Township
threatened to institute civil and criminal proceedings unless defendant submitted a
subdivision plan. Although believing that the Township's position was erroneous,
defendant submitted a subdivision plan. The Township then threatened not to approve
the plan and to deny an occupancy permit for the new house, even though no such
subdivision was legally required. On February 23, 1998, after the house on Lot 32 was
substantially completed, defendant reluctantly signed a written agreement with the
Township, which requires him to file a revision of the subdivision plan and to terminate
-5-
99-3824 CIVIL TERM
the multi-family use of the building on Lot 31. Defendant then applied for a certificate of
non-conformance for Lot 31 on the understanding that, if he could prove the existence
of a non-conforming use, he would be able to continue the two-unit apartment use on
that lot. On May 22, 1998, the Township Zoning Officer issued a certificate of non-
conformance for Lot 31. On May 26, 1998, the Township Commissioners approved the
subdivision plan as revised by defendant, but with added conditions that were not part
of the February settlement agreement. Defendant did not accept those conditions, one
of which was that the February "agreement" be recorded, thus creating additional
clouds on title to the lots and requiring that some of the agreement's provisions become
covenants running with the land. Defendant's non-acceptance of the conditions
resulted in the plan being deemed to have been rejected by the Township by operation
of law. Despite the fact that the Township had no legal right to require the subdivision
plan, that it issued a building permit for the new house on Lot 32, and that it has no right
to require the discontinuance of a valid non-conforming use, it still seeks to enforce the
agreement of February, 1998, that it obtained through intimidation and threats.
Defendant also avers in his counterclaim that in February, 1998, he applied to the
Township for a certificate of non-conformance for the boarding house on Lot 23, which
the Township has never acted upon. He seeks an order declaring the application as
approved. Counterclaim plaintiff seeks monetary damages, attorney fees and costs.
-6-
99-3824 CIVIL TERM
DISCUSSION
In County of Allegheny v. The Commonwealth of Pennsylvania, 507 Pa. 360
(1985), the Supreme Court of Pennsylvania stated:
A demurrer can only be sustained where the complaint is clearly
insufficient to establish the pleader's right to relief. For the purpose of
testing the legal sufficiency of the challenged pleading a preliminary
objection in the nature of a demurrer admits as true all well-pleaded,
material, relevant facts, and every inference fairly deducible from those
facts. The pleader's conclusions or averments of law are not
considered to be admitted as true by a demurrer.
Since the sustaining of a demurrer results in a denial of the
pleader's claim or a dismissal of his suit, a preliminary objection in the
nature of a demurrer should be sustained only in cases that clearly and
without a doubt fail to state a claim for which relief may be granted. If the
facts as pleaded state a claim for which relief may be granted under any
theory of law then there is sufficient doubt to require the preliminary
objection in the nature of a demurrer to be rejected. (Emphasis added.)
(Citations omitted.)
The only issue briefed by defendant in response to plaintiffs preliminary
objections to its counterclaim is its cause of action alleging a violation of substantive
due process under 42 U.S.C. § 1983. Issues not briefed are abandoned. Cumberland
County Rule of Court 210.8. Accordingly, we will dismiss defendant's counterclaim
alleging violations of 42 U.S.C. § 1981 and 1985, and nonspecified violations under the
constitution of Pennsylvania. There is no cognizable claim for a denial of procedural
due process.
-7-
99-3824 CIVIL TERM
As to defendant's substantive due process claim under Section 1983,' in
Woodwind Estates, LDT V. Gretkowski, 203 F.3d 118 (3r° Cir. 2000), a developer filed
a Section 1983 suit against Stroud Township, Monroe County, Pennsylvania, and its
individual officers. The suit was the result of the failure of the Township to approve the
plaintiffs development plans for a property. The plans were stymied when the
Township disapproved the plaintiffs subdivision plan. The Third Circuit Court of
Appeals stated that, inter alia:
[d]evelopers have a due process right to be free from 'arbitrary and
irrational zoning actions.' Arlington Heights v, Metropolitan Housing
Corporation, 429 U.S. 252, 263, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)....
To prevail on a substantive due process claim under § 1983, a plaintiff
must establish as a threshold matter that he has a protected property
interest which the Fourteenth Amendment's due process applies.... In
Independent Enterprises, Inc. v. Pittsburgh Water & SewerAuthority, 103
F.3d 1165 (3d Cir.1997), we stated that'a substantive due process claim
grounded in an arbitrary exercise of governmental authority may be
maintained only where the plaintiff has been deprived of a 'particular
quality of property interest,' and further explained that 'all of these cases
involv[ing] zoning decisions, building permits or other governmental
permission required for some intended use of land owned by the
plaintiffs,' implicated the kind of property interest protected by substantive
due process.... In light of the fact that the plan which Woodwind
submitted undisputedly satisfied all of the requirements for approval under
the ordinance and because the ordinance substantially limits the
Township's discretion regarding approval, we conclude that Woodwind
has a protected property interest under the Fourteenth Amendment.
Along with establishing a protected property interest, Woodwind
also must demonstrate that it was the victim of 'a governmental action
[that] was arbitrary, irrational, or tainted by improper motive' in order to
Absent an exclusive grant of jurisdiction to federal courts in a congressional
act, state courts of general jurisdiction have concurrent authority to adjudicate federally
created causes of action, which includes a Section 1983 claim. See Testa v. Kett, 330
U.S. 386, 67 S.Ct. 810, 91 L.Ed 967 (1947).
-8-
99-3824 CIVIL TERM
show a substantive due process violation under § 1983. Bello v. Walker,
840 F.2d 1124, 1129 (3d Cir.1988); Accord Parkway Garage v.
Philadelphia, 5 F.3d 685, 692 (3d Cir.1993) (a violation of substantive due
process rights is shown where the government's action in a particular
case were 'in fact motivated by bias, bad faith or improper motive');
Blanche Road Corp. v. Bensalem Twp., 57 F.3d 253, 263 (3d Cir.1995)
(same). Evidence that the government acted improperly for 'reasons
unrelated to the merits of the application for the permits' may support a
finding that the government arbitrarily or irrationally abused its power in
violation of substantive due process. Bello, 840 F.2d at 1129; See also
Pace Resources Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1035 (3d
Cir.1987) (irrationality not shown absent proof that government took
actions against developer'for reasons unrelated to land use planning').' In
disputed factual situations, the determination of the existence of improper
motive or bad faith is properly made by the jury as the finder of fact. See,
e.g., Bello, 840 F.2d at 1130; Midnight Sessions Ltd. V. City of
Philadelphia, 945 F.2d 667, 683 (3d Cir.1991).
In Woodwind, summary judgment that was entered against the developer in the
Middle District of Pennsylvania was vacated by the Third Circuit Court of Appeals,
which concluded that "[t]he evidence at least plausibly showed that the government
took actions against the developer for indefensible reasons unrelated to the merits of
the zoning dispute." In the case sub judice, Lower Allen Township and defendant
entered into a written contract to resolve their dispute with respect to defendant's use of
his lots in Spring Lake Colony. That agreement made it unnecessary for the Township
to file civil or criminal proceedings against defendant under its zoning ordinance for
what it considered defendant's violations. Defendant takes the position that despite the
fact that the contract he signed on February 23, 1998 contains a clause that it
"[s]upersedes all prior contemporaneous agreements, representations or
understandings regarding the same," he nevertheless had an understanding with the
-9-
99-3824 CIVIL TERM
Township that if he could prove the nonconforming status of his two-unit apartment
building, which he has, that he would be permitted to continue that use on his land. He
contends that the contract is unenforceable and that the legal positions, taken by the
Township that resulted in him signing the agreement, are incorrect. He interprets the
threats by the Township to enforce its ordinance through civil and criminal proceedings
as improper governmental action that led it to enter into the contract. Significantly,
Lower Allen Township has simply entered suit against defendant to require that he
abide by the terms of his written agreement. It has not instituted any other
proceedings against defendant, who is using his properties as he has developed
them, despite the fact that civil and criminal sanctions are a legal means for a
municipality to enforce its ordinances. Suing defendant for performance under the
written agreement of February 23, 1998, unlike the facts in Woodwind, cannot be
construed as indefensible. Either the contract is enforceable or it isn't. Even if the
underlying legal positions taken by the Township that led to the settlement agreement
are incorrect, defendant has not pleaded facts sufficient to at least plausibly show that
the Township took actions against him for reasons that were either arbitrary, irrational,
or tainted by improper motives such as to show a substantive due process violation
under Section 1983.
ORDER OF COURT
AND NOW, this 5?1 day of July, 2000, IT IS ORDERED that the
-10-
99-3824 CIVIL TERM
counterclaim filed by James W. Moran, Jr., against Lower Allen Township, IS
DISMISSED.
Robert G. Hanna, Jr., Esquire
For Plaintiff
Bruce F. Bratton, Esquire
For Defendant
:sea
-11-
LOWER ALLEN TOWNSHIP
Plaintiff,
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-5824 Civil
JAMES W. MORAN, JR.
Defendant.
CIVIL ACTION - LAW
REPLY TO ANSWER WITH NEW MATTER
Plaintiff, Lower Allen Township, by and through its attorneys, Metzger Wickersham
Knauss & Erb, P.C. responds to the Answer with New Matter, as follows:
REPLY TO NEW MATTER OF DEFENDANT
23. Paragraph 23 is a legal conclusion to which no responsive pleading is required.
To the extent an responsive pleading is required, the averments of Paragraph 23 are denied and
strict proof of same is demanded at trial.
24. Admitted.
25. Admitted.
26. Admitted in part and denied in part. It is admitted that Plaintiff's representative
agents and solicitors and others approached the Defendant and demanded that the Defendant
prepare and submit a subdivision plan with regard to his property. It is denied that it had
anything to do with the issuance of the building permit. To the contrary, the subdivision plan
was required after discovery that the Defendant had constructed buildings, pools and other
facilities over lot lines. The subdivision plan was requested to as nearly as possible to conform
to township zoning ordinances.
Dxmnrn! #: 163263.1
27. Admitted only that Defendant entered into an agreement to submit a subdivision
plan with respect to the property. All other averments of Paragraph 27 are denied and strict
proof of same is demanded at trial.
28. Admitted in part and denied in part. It is admitted that Defendant applied for
and received a Certificate of Non-Conformance with regard to a two-unit use. It is denied,
however, that the issuance of the Non-Conformance Certificate in any way changes the fact
that the Defendant agreed in the February, 1998 agreement to convert a multi-use building to a
single family residence in conformance with township zoning regulations. The issuance of the
Non-Conforming Use Certificate was ministerial on the part of township officials and in no
way effected the enforceability of the February, 1998 contract.
29. Admitted.
30. Denied. The averments of Paragraph 30 are legal conclusions to which no
responsive pleading is required. To the extent a responsive pleading is required, it is averred
by the Plaintiff that the agreement was no way changed by the issuance of the Certificate of
Non-Conformance. Moreover, the agreement itself at Paragraph 13 speaks to the fact that it
could not be amended or superseded except by agreement of the parties and actions at law.
31. Denied. The averments of Paragraph 31 are denied and strict of proof is
demanded at trial. To the contrary, Plaintiff has sought a subdivision plan as agreed to in the
February, 1998 agreement and has not insisted on any additional conditions or approval as
alleged.
2
Further, it is denied that the Certificate of Non-Conformance altered the
February 19, 1998 agreement on this point. To the contrary, Defendant's agreement to
convert the multi-use to single family residential use was not and could not be altered except
by the agreement of the parties according to the contract.
32. Denied. The averments of Paragraph 32 are denied and strict proof of same is
demanded at trial. To the contrary, Defendant agreed in the February 19, 1998 agreement to
the subdivision plan conditions. The conditions were negotiated with the help of counsel and
are now enforceable in contract.
33. Admitted. By way of further answer, Plaintiff sought outside legal
representation and an opinion letter was procured which formed the basis of this opinion.
34. Denied. The averments of Paragraph 34 are legal conclusions to which no
responsive pleading is required. However, to the extent a responsive pleading is required, the
averments of Paragraph 34 are denied.
The Municipalities Planning Code speaks for itself. However, the Plaintiff and
Defendant had the power to attempt to resolve outstanding issues with regard to the property
owner's property and property owner secured legal counsel to assist in this process. The First
Class Township Code enables the Plaintiff to enter into contracts and Defendant voluntarily
and with the assistance of legal counsel negotiated a contract based on his desires to correct
various problems with his property.
35. The averments of Paragraph 35 are denied and strict of same is demanded at
trial. To the contrary, the February 19, 1998 agreement has integration clause at Paragraph
3
13, indicating that the agreement can only be superseded or amended through agreement of the
parties. Any averments that the issuance of the Certificate of Non-Conformance altered this
arrangement is strictly denied and strict proof of same is demanded.
METZGER, WICKERSHAM. KNAUSS & ERB, P.C.
By:
Steven P. Miner, Esquire
I. D. No. 38901
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 171 10-0300
(717) 238-8187
Attorneys for Defendant
Date: July
, 2000.
4
07/19/2000 11:08 PAZ 7172349478
KHM HBG PA
VERIFICATION
+ WT
WOOS
I, Raymond E. Rhodes, Manager of Lower Allen Township, do hereby verify that the facts
set forth in the foregoing Reply to Answer with New Matter am true and correctto the best of my
personal knowledge or information and belief. I understand that false statements herein are made
subject to the penaltias of 18 Pa C_S. §4904, relating to unswom falsificationto authorities.
Date: July -2- 0 , 2000.
JRad E. Rhodes, er
Lo len Township
5
CERTIFICATE OF SERVICE
I, Steven P. Miner, do hereby certify that on the date set forth below, I did serve a true
and correct copy of the foregoing document upon the following person(s) at the following
address(es) indicated below by sending same in the United States Mail, first-class, postage
prepaid:
Bruce F. Button, Esquire
Martsolf & Bratton
2515 North Front Street
PO Box 12106
Harrisburg, PA 17108-2106
METZGER, WICKERSHAM, KNAUSS & ERB
By:
Stev n P. Miner, Esquire
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
Date: July 1? 4 , 2000.
6
1 _
l \L?
_)
OCT
z J.zoo?
I?
LOWER ALLEN TOWNSHIP : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff.
No. 99-5824 Civil
V.
CIVIL ACTION - LAW
JAMES W. MORAN, JR.
Defendant.
ORDER
AND NOW, this _ day of 2000, upon consideration of
Plaintiff's Motion to Compel, Defendant, James W. Moran, Jr., is hereby ordered to provide
full and complete Answers to Plaintiffs Interrogatories and those documents requested in
Plaintiffs Request for Production of Documents within twenty (20) days hereof.
BY THE COURT:
J.
Dmimenr q: 186568.1
? I
II
LOWER ALLEN TOVVNSIIIP
Plaintiff,
V.
JAMES W. MORAN, JR.
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-5824 Civil
CIVIL ACTION - LAW
RULE TO SHOW CAUSE
AND NOW, this / 3 •day of 0(A"e , 2000, upon consideration of
Plaintiffs Motion to Compel, a Rule is hereby issued upon Defendant, James W. Moran, Jr.,
to show cause, if any there be, why he should not be directed to provide full and complete
Answers to Plaintiffs Interrogatories and those documents responsive to Plaintiffs Request for
3'e.'j ,ti
Production of Documents within twenty (20) days of of this Order, with sanctions to
be imposed upon Defendant upon further application of Plaintiff for failure of Defendant to
comply in full,rder.
Document Y: 186568.1
BY THE COURT:
?
- ?.. ?jy
L:.
.
LOWER ALLEN TOWNSHIP
Plaintiff,
V.
JAMES W. MORAN, JR.
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-5824 Civil
CIVIL ACTION - LAW
PLAINTIFF'S MOTION TO COMPEL DEFENDANT
TO RESPOND TO PLAINTIFF'S DISCOVERY
AND NOW, comes Plaintiff, by and through its attorneys, Metzger, Wickersham,
Knauss & Erb, P.C., and moves this Honorable Court, pursuant to Pa.R.C.P. 4019, to enter
an Order compelling Defendant to provide full and complete answers to Plaintiffs
Interrogatories and those documents responsive to Plaintiff's Request for Production of
Documents for the reasons set forth below:
1. Plaintiff began this action by Complaint filed on September 21, 1999, alleging
breach of contractual obligations under a written agreement entered into by the parties on
February 23, 1998, as well as fraud on the part of Defendant.
2. On or about January 21, 2000, Defendant filed an Answer with New Matter and
Counterclaim alleging that the issuance of a Certificate of Nonconformance operated as an
amendment and superceded the agreement, the breach of which was the basis for the Plaintiffs
case, as well as various civil rights violations.
Document: /86568.1
3. On February 9, 2000, Plaintiff, Lower Allen Township, filed Preliminary
Objections to Defendant Moran's cross claim, maintaining that there was no due process
violation, and thus, Defendant's cross claim should be dismissed.
4. On or about May 18, 2000, Plaintiff, Lower Allen Township, served
Interrogatories and Requests for Production of Documents directed to Defendant James W.
Moran, Jr.
5. On July 5, 2000, the counterclaim filed by Defendant, James W. Moran, Jr.,
against Lower Allen Township was dismissed.
6. On or about July 21, 2000, Plaintiff, Lower Allen Township, filed a Reply to
Answer with New Matter.
7. Plaintiffs discovery requests of May 18, 2000, were still unanswered as the
date of Defendant's Answer to New Matter.
8. On August 3, 2000, Plaintiff received a letter from Defendant's counsel, Bruce
F. Bratten, Esquire, dated July 31, 2000, in which Mr. Bratton indicated that he had difficulty
arranging schedules with Defendant to respond to Plaintiff's discovery requests. See document
attached hereto as Exhibit "A."
9. On August 10, 2000, Plaintiffs attorney, Steven P. Miner, Esquire, sent a letter
to Defendant's attorney, Bruce F. Bratton, again addressing the outstanding discovery. See
document attached hereto as Exhibit "B."
Dm ment B: 186568.1
2
10. On September 8, 2000, Plaintiff's attorney, Steven P. Miner, again requested
responses to Plaintiff's discovery requests that were served in May. This letter indicated that,
if Defendant did not respond to the discovery requests by the end of September, Plaintiff
would consider filing a Motion to Compel. See document attached hereto as Exhibit "C."
11. To date, Defendant has not provided any answers to the Interrogatories or the
Request for Production of Documents which were served on May 18, 2000. Moreover,
despite Defendant's counsel's assurances to the contrary, no attempt has been made to provide
Plaintiff with these discovery responses.
12. It is assumed that Defendant does not concur in this Motion to Compel.
13. Plaintiff can not properly prepare for this action nor properly pursue this action
without the information requested from Defendant.
14. Because Plaintiff's Requests and Interrogatories address issues which are in
dispute in this case and cover other well recognized areas of discovery, Defendants should be
compelled to respond substantively to the Interrogatories and Requests.
15. Due to Defendant's failure to provide the information, documents, and other
things requested, it is appropriate for an Order to be issued requiring Defendant to comply
fully with the discovery requests or to suffer sanctions for failure to comply, all pursuant to
Pa.R.C.P. 4019 and other applicable law.
Donnnenr q: 186568. /
WHEREFORE, Plaintiff respectfully request that this Honorable Court issue an Order
requiring Defendant to answer fully and completely Plaintiff's Interrogatories and to provide
those documents responsive to Plaintiff's Request for Production of Documents within twenty
(20) days of the Order or suffer further sanctions upon application to the Court.
Respectfully submitted,
METZGER, W ERSHAM, KNAUSS & ERB, P.C.
Steven . Miner, Esquire
Id. NO. 38901
Steven C. Skoff, Esquire
Id. No. 85298
3211 North Front Street
PO Box 5300
Harrisburg, PA 17110-0300
(717) 238-8187
' l (Attorneys for Plaintiff, Lower Allen Township)
Date:
D-11mem N: 186568. /
4
VERIFICATION
The undersigned hereby certifies that he is an attorney for Plaintiff and that the facts in
the foregoing Plaintiff's Motion to Compel Defendant to Respond to Plaintiff's Discovery are
true and correct to the best of his knowledge, information, and belief, and that said matters,
relating to Plaintiffs Motion to Compel Defendant to Respond to Plaintiffs Discovery are as
known to the undersigned as to the clients, Lower Allen Township, said knowledge being
based upon information contained in the file in this matter, and further states that false
statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn
falsification to authorities. n
Date:
Steven P
DO-Men/ #. 186568, /
CERTIFICATE OF SERVICE
AND NOW, this day of October, 2000, 1, Steven P. Miner, Esquire, of Metzger,
Wickersham, Knauss & Erb, P.C., attorney for Plaintiff, hereby certify that 1 served a copy of the
within Plaintiffs Motion to Compel Defendant to Respond to Plaintiffs Discovery this day by
depositing the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania,
addressed to:
Bruce F. Bratton, Esquire
Martsols & Bratton
2515 North Front Street
PO Box 12106
Harrisburg, PA 17108-2106
(Attorneys for Defendant, James W. Moran, Jr.)
METZGER,
Date: I K
Steven P. Miner, Esquire
Attorney .D. No. 38901
3211 No h Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
(717) 238-8187
KNAUSS & ERB, P.C.
(Attorneys for Plaintiff, Lower Allen Township)
Document: 186568.1
Exhibft A
Mamolf & Bratton
ArroRNere ANO CouNss oRII AT LAw
2515 NORTH FRONT STREET
P.O. BOX 1210E TELEPHONE
P.R. MARTSOLP HARRISBURG. PENNSYLVANIA 17105.210E (717) 23411-4241
BRUCE F. ERATTON T O IER
(7117) 7) 2]S.6791
qUG PILE NO.
July 31, 2000
3
I%nn
990049
Steven P. Miner, Esquire
METZGER, WICKERSHAM, KNAUSS a ERB
3211 North Front Street
P. 0. Box 5300
Harrisburg, PA 17110-0300
Re: Lower Allen Township v. Moran
Dear Steve:
Mr. Moran and I have had difficulty arranging our schedules to
allow a meeting to respond to your document request but we are
attempting to do so promptly. In the interim, would you please
advise when the township manager would be available for deposition?
We had discussed at the courthouse in Carlisle the fact that
some of the documents you had produced were only half copied,
apparently as a result of the photocopying process. Perhaps you
and I should meet to go through the documents you provided so that
I can try to accurately determine which documents are intended to
be responsive to which request.
Very 5ruly
Bruce F. Bratton
BFB/ner
CC: Mr. James W. Moran, Jr.
Exhibit B
3211 North Front Sheet
P.O. Box 5300
Harrisburg, PA 17110-M
August 10, 2000 717-238.8187
Fax: 717-2349478
Other Offices
Colonial Park
Bruce F. Bratton, Esquire 717.652-7020
Martsolf & Bratton Mechanicsburg
2515 North Front Street 717691-5577
Shippensburg
Harrisburg, PA 17108-2106 717.530-7515
RE: Lower Allen Township v. Moran
Dear Bruce:
I have been speaking to Ray Rhodes at Lower Allen Township regarding his availability for
O depositions in this matter. However, I am reluctant to schedule any depositions before I
receive your responses to our interrogatories and requests for the production of documents.
I understand from your letter of July 31, 2000 that you have been having difficulties meeting
with Mr. Moran to develop responses to these requests. However, they will be needed before
we will schedule further discovery.
An additional set of responses to your request for documents was sent earlier this week.
Please let me know if you did not receive them or if they are not easier to work with. I look
p forward to your responses to our discovery requests so that we can move forward with this
\u?/ matter.
Very truly yours,
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
Steven P. Miner
Docunurnl N: 182170.1
James F. Carl
Edward E. Knauss, IV•
Jered L. Hock
Karl R. Hildabrand•
Steven P. Miner
Clark DeVere
E. Ralph Godfrey
Steven C. Courtney
Heather L. Harbaugh
Francis). Lafferty IV
David H. Martineau
Andrew W, Norneet
Steven C. Skoff
amid Crrlifi,V in civil
trial low and adtocacy
by rile National Board
of Trial Adrornry
Exhibit C
September 8, 2000
Bruce F. Bratton, Esquire
Martsolf & Bratton
PO Box 12106
Harrisburg, PA 17108-2106
Re: Lower Allen Township Y. Moran
Dear Bruce:
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 171160300
717.23&9167
Fax: 717.234.9479
Other Offices
Colonial Park
717652.7020
MecluMaburg
717.691.=
shi 5
C I am writing as a follow up to my letters in August with regard to outstanding discovery that
IIV= was served on you in this matter in late May. I understand with your upcoming judicial
appointment, this matter may have slipped past you, but I would like to see discovery
responses so that I can schedule Mr. Moran's deposition. I know that you want to schedule the
0 deposition of Township officials and I am hoping that we can coordinate the deposition after
receipt of your discovery responses.
If I do not receive responses to our discovery requests by the end of September, I will contact
my client with regard to their wishes for a Motion to Compel.
Let me know if you need additional time.
P
Very truly yours,
?/J
V ME 7GER WICKERSHAM KNAUSS & ERB, P.C.
FILE COPY
Steven P. Miner
SPM:ns
cc: Raymond E. Rhodes, Manager
Dac ml M: 1845d71
Jatttea F. Cad
Edward E. Knauss, N•
Jered L Hock
Karl R. Hildabrand•
Steven P. Miner
Clark DeVete
E. Ralph Godfrey
Steven C. Courotey
Heather L Harbaugh
Francis J. IAHerty, N
David H. Martineau
Andtew W. Norneet
Steven C. SkoH
• &aNGrli(aJ in ciNl
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3211 North Front Stm-et
P.O. Box 5300
Harrisburg, PA 17110-0300
717-238-8187
Fas: 717-234.9478
October 18, 2000
Kevin A. Hess, Judge
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17013-3387
Re: Lower Allen Township v. James W. Moran, Jr.
No.: 99-5824
Dear Judge Hess:
QIhcr Off c
Colonial Park
717.652.7020
717-h91--5977
shippen.burg
717-530.751 S
Enclosed for the above referenced case, please find a copy of the Certificate of Service
certifying that a copy of the Rule to Show Cause has been served this day on Attorney Bruce
F. Bratton, counsel for Defendant.
Should you have any questions or concerns regarding this or any other matter, please do not
hesitate to contact me.
Very truly yours,
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
Steven C. Skoff
SCS:sae
Enclosure
Dacument k: 18- 12 1
Jnnu•, I'. earl
ISdmirdF Kim,,,,, W'
Ivn'd 1, I lark
Karl It. I lildabnunl'
sirvon I'. .btnn•r
Clark I h•Vrm
F. Ralph Gudlrrv
Sloven (. (ou rtnvr
I lea lher l.. Ilarbaugh
Puma. 1. Le(A•rlµ IV
)and I I Alarlinvao
AmIn", W Norflevl
Slvn•n(' Sknft
' IennJt ?mp•.l ur,-uvl
hed lam mrd...f "a",
Ivl tb; .ihnneOf .mr,l
.q In:d;l•lirtintp
CERTIFICATE OP SERVICE
AND NOW, this J i d y of October, 2000, I, Steven C. Skoff, Esquire, of Metzger,
Wickersham, Knauss & Erb, P.C., attorneys for Lower Allen Township, hereby certify that 1
served a copy of the within Rule to Show Cause this day by depositing the same in the United
States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to:
Bruce F. Bratton Esq.
Martsols & Bratton
2515 North Front Street
PO Box 12106
Harrisburg, PA 17108-2106 tt-4-?-
LLt-
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
Steven C. Skoff, Esquire
Attorney I.D. No. 01616
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
(717) 238-8187
(Attorneys for Plaintiff, Lower Allen Township)
Date:
Document N: 187640.1
0,17 - .
Jut, a it .,00Ipp
LOWER ALLEN TOWNSHIP, : IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
NO. 99-5824
JAMES W. MORAN, JR.,
Defendant
ORDER
AND NOW, upon consideration of the within Stipulation for Settlement, it is hereby
ORDERED AND DECREED as follows:
The said stipulation is approved and is hereby incorporated herein as an Order of this
Court;
2. The parties are directed to fully perform all obligations within said stipulation as if
fully set forth as an Order of this Court.
Date io Zoa/
BY THE COURT,
J.
It"
LOWER ALLEN TOWNSHIP, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
NO. 99-5824
JAMES W. MORAN, JR.,
Defendant
STIPULATION FOR SETTLEMENT
Plaintiff and Defendant in the above-captioned matter hereby
stipulate and agree as follows and request the Court to approve the
said Stipulation in all respects and to incorporate same into an
Order of Court as hereinafter provided:
1. Upon the Court's approval of this Stipulation and entry
of the terms hereof as an Order of Court, Plaintiff Lower Allen
Township and Defendant James W. Moran, Jr. each hereby instruct
their respective counsel to execute such praecipe form or other
documents as may be reasonably required to cause the above-
captioned action and all claims or counterclaims raised therein
settled, discontinued and ended with prejudice. Such settlement,
however, shall not affect the validity and enforceability of this
Stipulation and the Order of Court approving same.
2. Upon the Court's approval of this Stipulation, the
agreement dated February 23, 1998, by and between Lower Allen
Township and James W. Moran, Jr, shall be deemed, for all purposes,
void and of no force and effect whatsoever.
3. Upon the Court's approval of this Stipulation, the
Preliminary/Final Subdivision Plan for James W. Moran, Jr. docketed
in Lower Allen Township's records at Docket No. 97-24 shall be
deemed to be withdrawn and the approval by Plaintiff Lower Allen
Township on May 26, 1998 with conditions as set forth in a certain
letter from Plaintiff Lower Allen Township to Defendant James W.
Moran, Jr. dated June 5, 1998 shall be deemed to have been a denial
for failure of the Defendant to accept the conditions stated in
such conditional approval.
4. Upon the Court's approval of this Stipulation, Moran
shall, at his sole discretion, be free to revoke, modify and/or
amend as appropriate that certain Declaration of Easement dated
May 26, 1998 and recorded in the office of the Recorder of Deeds of
and for Cumberland County at Record Book or Miscellaneous Book 577,
Page 363 et seq. and shall, likewise, be free to revoke,
extinguish, modify or amend that certain Declaration of Easement
dated October 3, 1997 and recorded in the Office of the Recorder of
Deeds of and for Cumberland County at Record Book or Miscellaneous
Book 558, Page 951 et seq.
5. Plaintiff Lower Allen Township hereby acknowledges that
the property of Defendant Moran located in Lower Allen Township and
which was the subject of this action remains as three subdivided
lots designated as Lot Nos. 23, 31 and 32 on the Plan of Spring
2
Lake Colony as recorded in the office of the Recorder of Deeds of
and for Cumberland County at Plan Book 2, Page 112, and further
acknowledges and agrees that the provisions of a certain deed from
Defendant's parents to Defendant and his spouse as to those lots
designated as Lot Nos. 31 and 32 on the Spring Lake Colony Plan,
which said deed is dated June 28, 1982 recorded in the office of
the Recorder of Deeds of and for Cumberland County at Deed Book V,
Volume 29, Page 955, shall not now or in the future be deemed to
alter the separateness of the said Lot Nos. 31 and 32 as depicted
on the said Spring Lake Colony Plan.
6. Defendant Moran, at his expense, shall prepare a deed of
reconveyance of the said Lot Nos. 31 and 32, with the joinder of
his parents and spouse, which such reconveyance to Defendant Moran
and his spouse shall include, expressly, a release and termination
of any provision or restriction in the 1982 deed.
7. Moran shall, within thirty (30) days of the date of the
Court's approval of this Stipulation, commence the preparation of
a plot plan for the Defendant's lots and shall submit same to the
Plaintiff. Such plot plan shall depict the actual location of the
lot lines for Lot Nos. 31 and 32 and shall depict or show the
elimination of any proposed new lot lines which had been part of
the Preliminary/Final Subdivision Plan which had been approved with
condition by the Plaintiff Township on or about May 26, 1998. Such
plot plan shall also depict the completed construction of the
residence and other improvements on Lots Nos. 31 and 32 and
3
depicting the work the Defendant agrees to undertake as part of
this Stipulation as hereinafter provided.
8. On or before August 31, 2001, Defendant Moran shall
undertake and complete the removal and closing of the swimming pool
lying at, near or upon the line of adjoinder between Lot Nos. 31
and 32 and shall undertake the relocation of the moveable
pool house so as to eliminate the encroachment into any setback
areas or straddling of any lot lines. Before undertaking such
removal, Moran shall apply for a building permit but the Plaintiff
hereby waives the payment by Defendant of any permit fee or
application fee with regard to such application.
9. Within seven (7) days of the date of the Court's approval
of this Stipulation, Plaintiff Lower Allen Township will issue a
certificate of nonconforming use as to the boarding home situate on
Defendant's Lot No. 23 confirming its nonconforming use status as
a boarding home. Such nonconformity shall, however, be limited to
permit no more than four (4) boarders or tenants to occupy the
rooming house as a boarding home at any one time after September 1,
2001 so long as the Plaintiff's zoning ordinances applicable to the
said Lot No. 23 do not permit use as a boarding home or other
multi-family use by a larger number of unrelated occupants.
10. Plaintiff Lower Allen Township hereby reconfirms the
authenticity and accuracy of the certificate of nonconformity with
respect to the two-unit apartment building situated on Defendant's
Lot No. 31 and agrees that such nonconforming use as a two-unit
4
residential property will remain undisturbed by Plaintiff so long
as any zoning ordinance applicable to said Lot No. 31 does not
permit two-unit or larger number of residential units in the
building or any other more intensive use of the property.
Defendant and Plaintiff agree that the basement or lower level of
the building situate on Defendant's Lot No. 31 may continue to be
used, however, for storage of tenant property or for storage use by
any residents of the said Lot No. 31 or for storage of the
landlord's property. Such storage space, however, shall not be
separately leased to any third parties or used for any commercial
activities by any such third parties unrelated to the Defendant's
properties so long as such use is not permitted under any zoning
ordinances applicable to the said Lot No. 31.
11. Within ten (10) days of the date of the Court's approval
of this Stipulation, Plaintiff Lower Allen Township shall undertake
an inspection of the home which has been constructed on Defendant's
Lot No. 32 and shall, promptly thereafter, issue a certificate of
occupancy. Plaintiff Township shall waive the payment of any
otherwise applicable inspection fees or costs related to the
inspection of the property and the issuance of a certificate of
occupancy with regard thereto. Plaintiff and Defendant agree that
the building on the said Lot No. 32 is and shall remain a single-
family dwelling and will continue to be so used so long as any
zoning ordinances applicable to the said Lot No. 32 do not permit
other use of the property designated as Lot No. 32.
5
12. The persons executing this Stipulation on behalf of
Plaintiff hereby represent and warrant that they have been duly
authorized so to act on behalf of the Plaintiff Township by
lawfully adopted resolution or other action of the Board of
Commissioners of Lower Allen Township at a lawfully convened
meeting thereof.
Date ? 11 jD I
Date (( ?, )
LOWER ALLENI TOWNSHIP
By ::R d .J. 8 c
Prin ed Name and Title
Lloyd W. Bucher, President
Board of Commissioners
METZGER, KERSHAM, KNA?USS& ERB
B WI
y / /
Ste en P. Miner, Esquire
3211 North Front Street
P. 0. Box 5300
Harrisburg, PA 17110-0300
(717) 238-8187
Attorneys for Plaintiff
Date
mes W. Moran, 'Jr.
Date R S r QL r/
MARTSO B WON
By
ruce F. Bratton, Esquire
Pa. Attorney I.D. No. 23949
2515 North Front Street
P. O. Box 12106
Harrisburg, PA 17108-2106
(717) 236-4241
Attorneys for Defendant
6