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HomeMy WebLinkAbout07-3721Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249.7780 717.249-7800 FAX Attorney ID 22080 RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs VS. HOPEWELL TOWNSHIP, CUMBERLAND COUNTY, PENNA. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO 07-.31;L1 11,zL' l CIVIL ACTION NOTICE 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: 717-249-3166 Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249.7780 717.249-7800 FAX Attorney ID 22080 RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO V? HOPEWELL TOWNSHIP, : CIVIL ACTION CUMBERLAND COUNTY, PENNA. Defendants COMPLAINT AND NOW, COME the Plaintiffs, Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer and-Rodney L. Yentzer II, , trading and doing business as Doublin Gap Motocross, Inc., by and through their attorney, William A. Duncan, and do file the within Action for Declaratory Judgment pursuant to the Declaratory Judgments Act, 42 Pa.C.S.A. section 7531 et seq., and Pa. R.C.P. 1601 et seq. Against Defendant, Hopewell Township: 1. The Plaintiffs Yentzer are sui juris adut individuals having an address of 1146 South Pitt Street, Carlisle, Cumberland County, Pennsylvania for purposes of this litigation. Plaintiff Doublin Gap Motocross, Inc. is a Pennsylvania Corporation with a business address of 1146 South Pitt Street, Carlisle, PA 17013. 2. The Defendant is Hopewell Township, a duly organized and existing Second Class Township, with a principal office at 415 Three Square Hollow Road, Newburg, Cumberland County, Pennsylvania 17240. 3. Plaintiffs own and conduct a business known as Doublin Gap Motocross, Inc. at 100 Reasner Lane, Shippensburg, Hopewell Township, Cumberland County, Pennsylvania. 4. This is an action for declaratory judgment pursuant to 42 Pa. C.S. section 7531 et seq. for the purpose of determining a question of actual controversy between the parties as hereinafter more fully appears. 5. Jurisdiction of this action is based on the Court's power to determine the validity or constitutionality of an ordinance under Section 1601(f) of The Second Class Township Code. 6. On or about August 6, 1979, the Board of Supervisors of Hopewell Township passed Ordinance No. 79-2 regulating public gatherings, a copy of which is incorporated herein by reference and marked Exhibit "A". 7. On or about May 5, 2007, the Board of Supervisors of Hopewell Township amended Ordinance No. 79-2, a copy of which is incorporated herein by reference and marked Exhibit «B„ 8. Plaintiffs are the owners of a business operation subject to regulation by said Ordinance and is a parry aggrieved by the adoption and amendment of said Ordinance. COUNTI 9. Paragraphs 1 through 8 are incorporated by reference hereto as if fully set out herein. 10. Hopewell Township Ordinance No. 79-2, Sections 4, 8, 9, and 10 address alcohol consumption within the township. 11. Defendant is pre-empted, precluded and prohibited from regulating the consumption of alcohol by the Pennsylvania Liquor Control Code and the Pennsylvania Criminal Code. 12. Hopewell Township Ordinance No. 79-2, Sections 2, 3 and 5 address issues of indecent actions, assault, battery and disorderly behavior. 13. Defendant is pre-empted, precluded and prohibited from regulating indecent and disorderly behavior, assault and battery by the Pennsylvania Criminal Code. 14. The preamble to Amendment to Hopewell Township Ordinance No. 79-2 cites the need of the Township to regulate trash, noise and air pollution, the natural environment, waterways and open spaces of the Township. 15. The Defendant is pre-empted, precluded and prohibited from regulating air pollution, the natural environment and waterways by regulations administered under the Pennsylvania Department of Environmental Protection and the Pennsylvania Department of Conservation and Natural Resources. Wherefore, Plaintiffs pray Your Honorable Court adjudge and decree that Hopewell Township Ordinance No. 79-2 as amended be declared null and void. COUNT II 16. Paragraphs 1 through 15 are incorporated by reference hereto as if fully set out herein. 17. Hopewell Township Ordinance No. 79-2, Sections 1, 6, 7, 11 and 14 (as amended) restrict public gatherings within the township. 18. The effect of Hopewell Township Ordinance No. 79-2, Sections 1,6,7,11 and 14 as applied to Plaintiff's activities is to regulate Plaintiff's business by regulating the number of business invitees which may attend Plaintiff's functions without obtaining a permit from the Township. 19. Defendant is pre-empted, precluded and prohibited from regulating or controlling Plaintiff's business by 53 P.S. section 66532 which specifically sets forth the types of business activities which may be regulated by the board of supervisors. 20. Defendant is pre-empted, precluded and prohibited from regulating or controlling Plaintiff's business by 53 P.S. section 66549 which specifically addresses racetracks within a second class township. 21. Hopewell Township Ordinance No. 79-2, Section 13 requires posting of a cash bond or surety to cover costs of clean-up and repair following the conduct of any public gathering which falls under the Ordinance. 22. Defendant is pre-empted, precluded and prohibited from demanding surety to cover the costs of clean-up on Plaintiff s private property. 23.. The effect of Hopewell Township Ordinance No. 79-2, Sections 6 as applied to Plaintiff's activities is to regulate Plaintiff's business by setting the hours of business and forbidding overnight parking on Plaintiff s property. 24. Defendant is pre-empted, precluded and prohibited from regulating or controlling Plaintiffs business by 53 P.S. section 66532 which specifically sets forth the types of business activities which may be regulated by the board of supervisors. Wherefore, Plaintiffs pray Your Honorable Court adjudge and decree that Hopewell Township Ordinance No. 79-2 as amended be declared null and void. COUNT III 25. Paragraphs 1 through 24 are incorporated by reference hereto as if fully set out herein. 26. The provisions and requirements of the aforesaid Ordinance are too vague and indefinite to be capable of reasonable interpretation to apprise Plaintiffs and those similarly situated of the conduct sought to be regulated and/or prohibited by the aforesaid Ordinance. 27. The aforesaid Ordinance as amended and the regulations therein and thereunder bear no reasonable relation to the health, safety, welfare and morals of the citizens of Hopewell Township. 28. The regulations of said Ordinance section 14, states that the Ordinance shall not be enforceable for any public gathering where all the persons in attendance are related by blood or marriage. 29. The regulations of said Ordinance section 14, creates a special protected class and is therefore unconstitutional. 30. The provision selecting 450 persons as the number of persons required for regulation under the public gathering ordinance is arbitrary and without any reasonable relation to the health, safety, welfare and morals of the citizens of Hopewell Township and is in fact unreasonable and unduly harsh. 31. The current amendment and enforcement of the Ordinance No. 79-2 by Hopewell Township constitutes de facto zoning or zoning in fact and is in violation of the Pennsylvania Municipalities Planning Code. 32. The permit fees required under Ordinance No. 79-2 as amended constitute a revenue measure and bear no reasonable relationship to the costs of administering the Ordinance. Wherefore, Plaintiffs pray Your Honorable Court adjudge and decree that Hopewell Township Ordinance No. 79-2 as amended be declared null and void. RESPECTFULLY SUBMITTED I?UNC & ARTMAN, P.C. W ? ? "M I r-. /-\ illiam A. n, Esquire Attorney for Defendant 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 VERIFICATION The undersigned, having read the attached Complaint, hereby verifies that the facts set forth therein are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S.section 4904 pertaining to unsworn falsification to authorities. R entzer II, Dublin Gap Motocross, Inc. Dated: VERIFICATION The undersigned, having read the attached Complaint, hereby verifies that the facts set forth therein are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S.section 4904 pertaining to unsworn falsification to authorities. Rodney L. Yentzer Dated: Gr -- 2 0 - 0 7 VERIFICATION The undersigned, having read the attached Complaint, hereby verifies that the facts set forth therein are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S.section 4904 pertaining to unsworn falsification to authorities. C?2 /IS-1 Carol M. Yentzer Dated: ?/zo% 7 VERIFICATION The undersigned, having read the attached Complaint, hereby verifies that the facts set forth therein are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S.section 4904 pertaining to unsworn falsification to authorities. Dated: cj?'f C- HOPEWELL TOWNSHIP ORDINANCE NO. 79-2 AN ORDINANCE REGULATING PUBLIC GATHERINGS, PROVIDING FOR PUBLIC GATHERING PERMITS AND REQUIRING ADEQUATE FACILITIES THEREFOR, PRO- HIBITING CONSUMPTION OF ALCOHOLIC BEVERAGES AND POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES ON PUBLIC PROPERTY AND PUBLIC HIGH- WAYS, PROHIBITING PUBLIC DRUNKENNESS, AND PRO- HIBITING FIGHTING, INDECENT CONDUCT, AND GATHERINGS FOR UNLAWFUL PURPOSES WITHIN THE TOWNSHIP, AND PRESCRIBING PENALTIES FOR VIOLATION. It is hereby ordained and enacted by the Board of Supervisors of Hopewell Township, Cumberland County, Pennsylvania, as follows: Section 1. It shall be unlawful to hold, manage or conduct any public gather- ing, entertainment, or party of any kind in the Township, except in compliance with the provisions of this ordinance. Section 2. It shall be unlawful to collect, gather, or be a member of any disorderly crowd, or any crowd gathered for any unlawful purpose. Section 3. It shall be unlawful for any person to commit any indecent act; or to appear in any public place not properly or decently garbed. Section 4. It shall be unlawful for any person to be in an intoxicated condition in or on any street, highway, or public place within the Township. Section 5. It shall be unlawful for any person to knowingly start a fight, or to fight, or to commit any assault or battery in any public place within the Township. Section 6. Any public gathering or event not held in a building shall be term- inated not later than midnight, and it shall be unlawful for any person to remain on the premises between the hours of 1:00 and 6:00 a.m.; provided that employees of the holders, managers or conductors of such gathering or event whose duties necessitate it, may remain on the premises for the performance of such duties. Section 7. No such gathering, entertainment, or party shall be held or pre- sented in any premises, unless such premises have been examined by the building inspector of the Township not more than three days in advance of the date of such gathering and found free of any fire hazard and found to be suitable for the purpose. Section 8. It shall be unlawful, within Hopewell Township, for any person to drink "liquor" or "malt or brewed beverages" upon any public street, public munici- pal parking lot, private parking lot open to public use or public park, or in any vehicle being operated or parked thereon. Section 9. 'It shall be unlawful, within Hopewell Township, for any person to have in such person's possession or in a vehicle under such person's control any open container containing "liquor" or "malt or brewed beverages" upon any public street, public municipal parking lot, private parking lot open to public use or public park. Section 10: The following words or phrases, unless the context clearly indicates otherwise, shall have the meaning ascribed to them in this section: "Liquor" and "Malt or Brewed Beverages" and "Container" and "Official Seal" shall mean the same as those words and phrases are defined in the "Liquor Code" of the Commonwealth of Pennsylvania. "Open" when used in connection with a container shall mean any container which has been perforated in the case of a can or similar container or a container on which the cap has been loosened or the cork displaced and the official seal torn or mutilated. Section 11: It shall be unlawful to hold, manage or conduct any public gatherings, entertainment or party within Hopewell Township without providing for adequate sanitary facilities. There must be separate facilities or units for males and females. All facilities, except where public water and public sewer service is available, shall be of the chemical type. All facilities during the operation of the public gathering, entertainment or party, must be serviced once a day, at least. Section 12: Any person, corporation or firm desiring to hold, manage or conduct a public gathering of a type covered by this ordinance must make applica- tion to the Township Secretary for a permit at least ten days in advance of the gathering or event and pay to the Township at that time any fee for issuance of ,said permit which the Township, by resolution, may impose. Application forms shall be provided by the Township and require such information as the Township, by resolution, deems necessary and pertinent for the effective enforcement of the provisions of this Ordinance. Upon compliance with this section and with the provisions of this Ordinance, the Township Secretary shall issue the appropriate permit. Section 13: The Township may require the posting of cash bond, or surety bond with two or more sureties satisfactory to the Township, or with a corporate surety, in an amount which will reimburse the Township for its costs of clean-up, maintenance, and repair following the conduct of any public gathering within the Township contrary to the provisions of this Ordinance, prior to the issuance of the appropriate permit. Section 14: This Ordinance is not intended to apply to any public gathering of less than 750 individuals, and is not intended to apply to any public gather- ing where all the persons in attendance are related by blood or marriage. Section 15: Any person, firm or corporation violating any provision of this Ordinance shall, upon summary conviction thereof, be sentenced to pay a fine of not more than three hundred ($300.00) Dollars, and costs of prosecution, and, in default of payment of such fine and costs, to imprisonment for not more than ninety (90) days. Section 16: If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance. Enacted this V day of August, 1979. A?test: 'Alverda C. Ocker, Secretary Georg A•Hoover, Chairman HOPEWELL TOWNSHIP ORDINANCE NO. AN ORDINANCE OF THE TOWNSHIP OF HOPEWELL, CUMBERLAND COUNTY, PENNSYLVANIA, PROVIDING FOR AMENDING HOPEWELL TOWNSHIP ORDINANCE NO. 79-2 WHEREAS, there exists an Ordinance regulating certain public gatherings in Hopewell Township, Cumberland County, Pennsylvania which is Ordinance 79-2; and WHEREAS, said Ordinance 79-2 was duly enacted August 6, 1979; and WHEREAS, the Board of Supervisors of the Township of Hopewell deems it in the best interests of the citizens of the Township of Hopewell for their general health, welfare and safety to amend Ordinance 79-2; and WHEREAS, the Board of Supervisors of the Township of Hopewell acknowledges that the impact on the community of large gatherings affects the surrounding community including the general welfare of those using roads and highways located within the Township, increases the need for emergency services, impinges the quiet enjoyment of residents of their property; and WHEREAS, large gatherings of persons tends to create additional trash, noise and air pollution, and adversely effect the natural environment, waterways, and open spaces of the Township unless properly regulated. NOW THEREFORE, BE IT ENACTED AND ORDAINED by the Board of Supervisors of the Township of Hopewell, Cumberland County, Pennsylvania, and it is hereby enacted and ordained as follows: SECTION 1. Section 14 of Ordinance 79-2 is amended to read as follows: This ordinance is intended to apply to any public gathering of 450 individuals or more, and it shall not apply to gatherings of fewer than 450 people. This Ordinance is not intended to apply to any public gathering within the Township where all persons in attendance are related by blood or marriage. SECTION II. This Ordinance shall become effective five days after enactment. SECTION III. SEVERANCE CLAUSE - Should any section, paragraph, clause or phrase of this Ordinance be declared unconstitutional or invalid by a Court of competent jurisdiction, the remainder of said Ordinance shall not be affected thereby, and shall remain in full force and effect. SECTION IV. REPEALER CLAUSE All Ordinances or parts of Ordinances or Resolutions conflicting with the provisions of this Ordinance are hereby repealed to the extent of such conflict. ENACTED AND ORDAINED into an Ordinance this _ day of ., 2007. BOARD OF SUPERVISORS OF THE TOWNSHIP OF HOPEWELL ATTEST: Secretary by by by ( v 1A3 ' I Cl r " rv tJ , v3 c ? 01 ' K RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER, and RODNEY L. YENTZER, II, t/d/b/a DOUBLIN GAP MOTORCROSS, INC. Plaintiffs Vs. HOPEWELL TOWNSBHIP, CUMBERLAND COUNTY, PENNA. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 07-3721, CIVIL TERM : CIVIL ACTION - LAW NOTICE TO PLEAD To: Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer, Rodney L. Yentzer,II, t/d/b/a Doublin Gap Motorcross, Inc. You are hereby notified to file a written response to the enclosed Answer and Affirmative Defense within TWENTY (20) DAYS after service hereof, or a judgment may be entered against you. 1 BY. AJ Sally J. finder Attorney for Defendant 9974 Molly Pitcher Highway Shippensburg, PA 17257 (717) 532 - 9476 RODNEY L. YENTZER, CAROL M. : IN THE COURT OF COMMON PLEAS YENTZER, JEFFREY A. YENTZER, and : OF CUMBERLAND COUNTY, PENNA. RODNEY L. YENTZER, II, t/d/b/a DOUBLIN GAP MOTORCROSS, INC. : NO. 07-3721, CIVIL TERM Plaintiffs Vs. HOPEWELL TOWNSBHIP, : CIVIL ACTION - LAW CUMBERLAND COUNTY, PENNA. Defendant ANSWER TO COMPLAINT Comes now the Defendant, Hopewell Township, Cumberland County, Pennsylvania, by and through their solicitor, Sally J. Winder, Esquire and does Answer the Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. It is admitted that Plaintiff has filed this action as a Declaratory Judgment Action under 42 Pa. C.S. Section 7431 et seq. It is denied that Plaintiff has set forth a question of actual controversy as stated in the Complaint. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. COUNTI 9. Defendant admits and denies as set for in the above responses to paragraph 1 through 6. 10. Admitted in part and denied in part. It is admitted that Hopewell Township Ordinance 79- 2, Section 8 prohibits drinking liquor or malt or brewed beverages in certain places within the Township. Denied that Section 4 addresses alcohol consumption. On the contrary, Section 4 makes it illegal to be in an intoxicated condition in specified places within the Township. Denied that Sections 9 and 10, address alcohol consumption. On the contrary, Section 9 addresses open containers and Section 10 is a definition section. 11. Denied. The statements of Plaintiff are conclusions of law to which no response is required. To the extent that the Court may consider the averment to contain matters of fact, the Defendant denies the averment and states that Plaintiff has not stated a specific pre-emption or prohibition in either the Pennsylvania Liquor Control Code or the Crimes Code which pre-empts, prohibits, or invalidates the Defendant Township from enacting the provisions of Ordinance 79-2. 12. Admitted. 13. Denied. On the contrary the Second Class Township Code, 53 P.S. Section 66527, authorizes the second class townships, one of which is Defendant, Hopewell Township to adopt ordinances to secure the safety of person or property within the township and to define disturbing the peace within the limits of the township. Therefore, there is a specific authorization in the Second Class Township Code which is consistent with the Pennsylvania Crimes Code. Defendant after reasonable investigation is without any knowledge as to the truth or veracity of this averment and strict proof thereof is demanded at trial. 14. Denied. On the contrary, a reading of the preamble shows that the statement is that large gatherings of persons creates additional trash, noise, and air pollution and impacts adversely the natural environment unless properly regulated. It does not state that the Township is creating those kinds of regulations. 15. Denied. On the contrary, the Township is not pre-empted or prohibited by regulations of the Department of Environmental Resources or the Department of Conservation and Natural Resources. By way of example, the Township is authorized by Section 66513 of the Second Class Township Code to widen and deepen watercourses. WHEREFORE, Defendants pray this Honorable Court dismiss the Plaintiff's Complaint for failure to state a basis to invalidate Hopewell Township Ordinance 79-2, as amended and declare the Ordinance, as amended in full force and effect. COUNT II 16. Defendant's responses to paragraphs 1 through 15 are incorporated by reference as if fully set out. 17. Denied as stated. On the contrary, Defendant believes and therefore avers, that the provisions of Ordinance 79-2, as amended do not restrict public gatherings within the township in the context of prohibiting them. Rather, the Ordinance creates a permitting process for the conduct of such gatherings under Section 12 of the Ordinance. 18. Denied. On the contrary, Hopewell Township Ordinance 79-2 does not limit the number of invitees to Plaintiff's activities. Rather, the Ordinance requires that Plaintiff obtain a Public Gathering Permit for each event where there will be in excess of 450 people. In fact, Plaintiff has applied for and obtained such permits as recently as obtaining a permit for an event held June 24, 2007. Subsequent to the filing of this Complaint, Plaintiff submitted a permit application for an event scheduled for July 15, 2007. Therefore, Plaintiff has demonstrated that his business activities are not restricted by obtaining a permit. 19. Denied. On the contrary, Defendant is not pre-empted, precluded or prohibited from regulating or controlling Plaintiff's business by 53 P.S. Section 66532. There is no language in 53 P.S. Section 66532 which pre-empts, precludes or prohibits Defendant regulating or permitting Plaintiff's business of Motorcross. There is no language in Section 66532 which makes the businesses to be regulated and licensed under Section 66532 an exclusive list of the only types of business to be regulated by Township Ordinance and strict proof thereof is demanded at trial of this matter. 20. Denied. On the contrary, 53 P.S. Section 66549 addresses racetracks but it speaks in terms of authorizing the townships to regulate horseracing and it applies only to horseracing and not motorcycle motocross. So, therefore, Plaintiffs have no basis for any claim under 53 P.S. Section 66549 21. Denied as stated. The Hopewell Township Ordinance 79-2 Section 13 language is permissive not mandatory in that it states "The Township aay require the posting of cash bond, surety..."; therefore the Ordinance does not require the posting of bond. 22. Denied. Plaintiff's averment is a conclusion of law which does not require a response. To the extent that the Court may interpret paragraph 22 as a factual statement, Defendant denies that there is any source or basis for the Plaintiff stating that the Township is pre- empted or prohibited from requesting cash bonding or surety and strict proof thereof is demanded at trial of this matter. 23. Denied as stated. On the contrary, Section 6 states that an "event not held in a building shall be terminated not later than midnight, and it shall be unlawful for any person to remain on the premises between the hours of 1:00 and 6:00 a.m...." It does not address parking on Plaintiff's property. 24. Denied. On the contrary, 53 P.S. Section 66532 is not an exclusive list of the businesses which may be regulated by the Township and the section contains no language which pre-empts, precludes, or prohibits the Board of Supervisors from regulating the Plaintiff s business of motocross. COUNT III 25. The responses to paragraphs 1 through 24 are incorporated by reference as if fully set forth. 26. Denied. The averments of paragraph 26 are conclusions of law to be determined by the Court. 27. Denied. The averments of paragraph 27 are conclusions of law to be determined by the Court. 28. Admitted. 29. Denied. On the contrary creation of an exception as in this Ordinance in Constitutionally protected activity. 30. Denied. On the contrary, the amendment requiring a permit for gatherings and events of more that 450 people is rational and has a basis in the protection of public health, safety and welfare of the citizens of Hopewell Township as set forth in the preamble of the amending Ordinance attached as Exhibit "B" of the Plaintiff's Complaint. This provision is not unduly harsh or unreasonable and Plaintiff has already twice applied for permits under this amended Ordinance; the first permit application resulted in a permit being issued and the second application is pending. 31. Denied. On the contrary, Hopewell Township Ordinance 79-2, as amended, does not result in de facto zoning. It does not affect land use but regulates public activity throughout the Township. Therefore, it is not in violation of the Pennsylvania Municipalities Planning Code. 32. Denied. On the contrary, the permit fees are not a revenue measure and were calculated to bear a reasonable relationship to the time and costs incurred by the Township in administering the permit process. AFFIRMATIVE DEFENSE 1. Defendant Township enacted the amendment to Ordinance 79-2 on May 7, 2007. It was effective five days after the date of enactment. 2. Under 42 Pa. C.S. Section 5571( c) (5) questions relating to enactment or adoption of an ordinance as in this case shall be raised by filing within 30 days after the effective date of the ordinance. 3. The Complaint in this action was filed June 21, 2007, more than 30 days after the effective date of the amendment. 4. Therefore, Plaintiff's Complaint is not timely filed and is time barred by the statute of limitations above-cited. WHEREFORE, Defendant prays this Honorable Court enter an order dismissing the Complaint with prejudice. Respectfully submitted, ?A xj)-- Sally J. nder, Esquire Attorney or Defendant 9974 Molly Pitcher Highway Shippensburg, PA 17257 717 532.9476 Attorney ID 24705 VERIFICATION I verify that the statements made in this pleading are true and correct to the best of my knowledge, information and belief and that as an elected member of the Board of Supervisors I am authorized to execute this verification. I understand that false statements herein are made subject to the penalties of I8 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: (? ? : C F•? ? ?-T1 , y _.._ ._..y r:? , ? .r i_ ?°: ? ' ""' r a. (?J :??1 ., ?} --^ { C7 Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249.7780 717.249-7800 FAX Attorney ID 22080 RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO 07-3721 CIVIL TERM HOPEWELL TOWNSHIP, : CIVIL ACTION CUMBERLAND COUNTY, PENNA. Defendants RESPONSE TO AFFIRMATIVE DEFENSE The Plaintiffs, by and through their attorneys, Duncan & Hartman, P.C. respond to Defendants' Affirmative Defense as follows: 1. Admitted. 2. Admitted that questions relating to procedure defects relating to enactment or adoption of an ordinance should be raised within 30 days after the effective date of the ordinance. Denied in that the action does not involve procedural or adoption defects. 3. Admitted. 4. Denied, as Defendant's statement is a legal conclusion and no response is required. To the contrary, the declaratory judgment action filed herein is the correct method of substantively challenging the ordinance. RESP CT L 4BMITTED t. 7 William A. Duncan, Esquire 7 / ( Attorney for Defendant dp VERIFICATION The undersigned, having read the attached Answer, hereby verifies that the facts set forth therein are true and correct to the best of his knowledge, information and belief This verification is made subject to the penalties of 18 Pa.C.S.section 4904 pertaining to unsworn falsification to authorities. Z/J, Rodney L. entzer Dated: -7 ( -36) A 7 Ap. VERIFICATION The undersigned, having read the attached Answer, hereby verifies that the facts set forth therein are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S.section 4904 pertaining to unsworn falsification to authorities. f Rodney L. Yentzer II Dated: q- 30 v 1 VERIFICATION The undersigned, having read the attached Answer, hereby verifies that the facts set forth therein are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S.section 4904 pertaining to unsworn falsification to authorities. Carol M. Yentzer Dated: -71,?O b7 f ? RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs VS. HOPEWELL TOWNSHIP, CUMBERLAND COUNTY, PENNA. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO 07-3721 CIVIL TERM CIVIL ACTION CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the RESPONSE TO AFFIRMATIVE DEFENSE by depositing same in the United States Mail, first class, postage pre-paid, certified, return receipt requested on the 1 st day of August, 2007, addressed as follows: Sally J. Winder, Esquire 9974 Molly Pitcher Highway Shippensburg, PA 17257 DUNCAN & HARTMAN, P.C. ( 'A 4 '?q' L_:;? - --w- William A. D can, Esquire Attorney for Defendant 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 a SHERIFF'S RETURN - REGULAR CASE NO: 2007-03721 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND YENTZER RODNEY L ET AL VS HOPEWELL TOWNSHIP CUMB CO PA DAVID MCKINNEY Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HOPEWELL TOWNSHIP CUMBERLAND COUNTY PENNA the DEFENDANT at 1526:00 HOURS, on the 28th day of June , 2007 at 412 THREE SQUARE HOLLOW ROAD NEWBURG. PA 17240 by handing to KIMBERLY MYERS, SEC/TREAS ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 g Service 19.20 Postage .41 Surcharge 10.00 R. Thomas Kline 00 8'041?? 47.61 06/29/2007 DUNCAN & HARTMAN Sworn and Subscibed to By: _ before me this day Deputy Sheriff of A.D. Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249.7780 717.249-7800 FAX Attorney ID 22080 RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 07-3721 HOPEWELL TOWNSHIP, CUMBERLAND COUNTY, PENNA. Defendant CIVIL ACTION MOTION FOR JUDGMENT ON THE PLEADINGS 1. The initial Complaint filed in this matter asserted an action for Declaratory Judgment pursuant to the Declaratory Judgments Act, 42 Pa.C.S.A. section 7531 et seq. and Pa. R.C.P. 1601 et seq. against Defendant, Hopewell Township. 2. The pleadings are closed and there is ample time for the disposition of this Motion so as not to delay trial. 3. The Plaintiff asserts that this action for Declaratory Judgment is appropriate in order to determine that Hopewell Township Ordinance No. 79-2 as amended is null and void. 4. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim. If the Court determines that Defendant is pre-empted, precluded and prohibited from regulating the consumption of alcohol within the township, then it must declare Ordinance No. 79-2 as amended null and void. 5. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim. If the Court determines that Defendant is pre-empted, precluded and prohibited from regulating indecent and disorderly behavior, assault and battery within the township, then it must declare Ordinance No. 79-2 as amended null and void. 6. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim. If the Court determines that Defendant is pre-empted, precluded and prohibited from regulating air pollution, the natural environment and waterways within the township, then it must declare Ordinance No. 79-2, as amended null and void. 7. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim. If the Court determines that Defendant has exceeded its authority as set forth in the enumerated powers under the Pennsylvania Second Class Township Code by regulating Plaintiffs' business through enforcement of Ordinance No. 79-2, as amended, it must then declare the aforesaid Ordinance null and void. 8. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim. If the Court determines that Defendant has exceeded its authority by regulating a motocross race track through enforcement of Ordinance No. 79-2, as amended, it must then declare the aforesaid Ordinance null and void. 9. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim. If the Court determines that Defendant has exceeded its authority by requiring surety to cover costs of clean-up on private property, it must then declare Ordinance No. 79-2, as amended, null and void. 10. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim. If the Court determines that Defendant has exceeded it authority by regulating Plaintiff's business by setting the hours of business and forbidding overnight parking on Plaintiff's property through its enforcement of Ordinance No. 79-2, as amended, then it must declare the aforesaid Ordinance null and void. 11. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim If the Court determines that the Ordinance as written is too vague and indefinite as to be capable of reasonable interpretation to apprise Plaintiffs and those similarly situated of the conduct sought to be regulated and/or prohibited by the aforesaid Ordinance, then it must declare Ordinance No. 79-2 as amended null and void. 12. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim If the Court determines that the Ordinance creates a special protected class through exempting persons in attendance who are related by blood or marriage, then it must declare Ordinance No. 79-2 as amended null and void. 13. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim If the Court determines that the provision selecting 450 persons as the number of persons required for regulation under the public gathering ordinance is arbitrary and without any reasonable relation to the health, safety, welfare and morals of the citizens of Hopewell Township then it must declare Ordinance No. 79-2 as amended null and void. 14. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim If the Court determines that Ordinance No. 79-2 as amended constitutes de facto zoning and is in violation of the Pennsylvania Municipalities Planning Code, it must declare Ordinance No. 79-2 as amended null and void. 15. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim If the Court determines that the permit fees required under the Ordinance constitute a revenue measure and bear no reasonable relationship to the costs of administering the Ordinance, it must declare Ordinance No. 79-2 as amended null and void. 16. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim. If the Court determines that Ordinance No. 79-2 lacks a valid enforcement provision in that it fails to designate a township official authorized to enforce the Ordinance, then it must declare Ordinance No. 79-2 as amended null and void. 17. The status of the pleadings clearly reveals that the Plaintiffs are entitled to judgment as a matter of law because there is no genuine issue of any material fact as to the lack of an essential element of the aforementioned claim. If the Court determines that Ordinance No. 79-2 fails to specify the procedure to be used to calculate the number of attendees at a particular event, then it must declare Ordinance No. 79-2 as amended null and void. 18. This motion is based on the records, papers, pleadings and files of this action and is made pursuant to Pa. R.Civ.P. No. 1034. 19. President Judge Edgar Bayley has heard a prior action brought by Hopewell Township Board of Supervisors against Plaintiffs, No. 2007-4122 wherein the Township sought injunctive relief for the enforcement of Ordinance No. 79-2 as amended. WHEREFORE, Plaintiffs request that this Honorable Court find in favor of Plaintiffs and enter an appropriate Decree and judgment. RESPECTFULLY SUBMITTED 1 tom, William A. Duncan, Esquire Attorney for Plaintiffs N ?? {rc t"3 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER RODNEY L. YENTZER,t/d/b/a DOUBLIN GAP MOTO- vs. CROSS, INC. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP No 07-3721 CIVIL Term Defendant 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion for Judgment on the Pleadings 2. Identify all counsel who will argue cases: (a) for plaintiffs: William A Duncan, Esquire (Name and Address) 1 Irvine Row, Carlisle, PA 17013 (b) for defendants: Sally J. Winder, Esquire (Name and Address) 9974 Molly Pitcher Highway, Shippensburg, PA 17257 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 23, 2008 Date ec e..,? bye c- 9 ?? William D n ?rint o r n e Ali,,_,. A ntiffs INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. C ,.fir ZY, ? p ^< RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO 07-3721 CIVIL TERM HOPEWELL TOWNSHIP, : CIVIL ACTION CUMBERLAND COUNTY, PENNA. Defendants CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the MOTION FOR JUDGMENT ON THE PLEADINGS and PRAECIPE LISTING FOR ARGUMENT COURT by depositing same in the United States Mail, first class, postage pre-paid, certified, return receipt requested on the 20thday of December, 2007, addressed as follows: Sally J. Winder, Esquire 9974 Molly Pitcher Highway Shippensburg, PA 17257 DUNCAN & HARTMAN, P.C. \ / X"/_II,?AA.e-, William A. Duncan, Esquire Attorney for Plaintiff I Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 r-? p co RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER AND RODNEY L. YENTZER, II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC., PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HOPEWELL TOWNSHIP, DEFENDANT 07-3721 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this 1144- day of May, 2008, the motion of plaintiffs for a judgment on the pleadings, IS DENIED. William A. Duncan Esquire For Plaintiffs ? Sally Winder, Esquire For Defendant sal Cn?t-es S?w?a2 cr) tV U RODNEY L. YENTZER, CAROL M. IN THE COURT OF COMMON PLEAS OF YENTZER, JEFFREY A. YENTZER CUMBERLAND COUNTY, PENNSYLVANIA AND RODNEY L. YENTZER, II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC., PLAINTIFFS V. HOPEWELL TOWNSHIP, DEFENDANT 07-3721 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY, J. AND GUIDO, J. OPINION AND ORDER OF COURT Bayley, J., May 13, 2008:-- In 1979, Hopewell Township, a second class Township, adopted the following ordinance No. 79-2: AN ORDINANCE REGULATING PUBLIC GATHERINGS, PROVIDING FOR PUBLIC GATHERING PERMITS AND REQUIRING ADEQUATE FACILITIES THEREFORE, PROHIBITING CONSUMPTION OF ALCOHOLIC BEVERAGES AND POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES ON PUBLIC PROPERTY AND PUBLIC HIGHWAYS, PROHIBITING PUBLIC DRUNKENNESS, AND PROHIBITING FIGHTING, INDECENT CONDUCT, AND GATHERINGS FOR UNLAWFUL PURPOSES WITHIN THE TOWNSHIP, AND PRESCRIBING PENALTIES FOR VIOLATION. It is hereby ordained and enacted by the Board of Supervisors of Hopewell Township, Cumberland County, Pennsylvania, as follows: Section 1. It shall be unlawful to hold, manage or conduct any public gathering, entertainment, or party of any kind in the Township, except in compliance with the provisions of this ordinance. Section 2. It shall be unlawful to collect, gather, or be a member of any disorderly crowd, or any crowd gathered for any unlawful purpose. Section 3. It shall be unlawful for any person to commit any indecent act; or to appear in any public place not properly or decently garbed. Section 4. It shall be unlawful for any person to be in an intoxicated condition in or on any street, highway, or public place within the Township. 07-3721 CIVIL TERM Section 5. It shall be unlawful for any person to knowingly start a fight, or to fight, or to commit any assault or battery in any public place within the Township. Section 6. Any public gathering or event not held in a building shall be terminated not later than midnight, and it shall be unlawful for any person to remain on the premises between the hours of 1:00 and 6:00 a.m.; provided that employees of the holders, managers or conductors of such gathering or event whose duties necessitate it, may remain on the premises for the performance of such duties. Section 7. No such gathering, entertainment, or party shall be held or presented in any premises, unless such premises have been examined by the building inspector of the Township not more than three days in advance of the date of such gathering and found free of any fire hazard and found to be suitable for the purpose. Section 8. It shall be unlawful, within Hopewell Township, for any person to drink "liquor" or "malt or brewed beverages" upon any public street, public municipal parking lot, private parking lot open to public use or public park, or in any vehicle being operated or parked thereon. Section 9. It shall be unlawful, within Hopewell Township, for any person to have in such person's possession or in a vehicle under such person's control any open container containing "liquor" or "malt or brewed beverages" upon any public street, public municipal parking lot, private parking lot open to public use or public park. Section 10. The following words or phrases, unless the context clearly indicates otherwise, shall have the meaning ascribed to them in this section: "Liquor" and "Malt or Brewed Beverages" and "Container" and "Official Seal" shall mean the same as those words and phrases are defined in the "Liquor Code" of the Commonwealth of Pennsylvania. "Open" when used in connection with a container shall mean any container which has been perforated in the case of a can or similar container or a container on which the cap has been loosened or the cork displaced and the official seal torn or mutilated. Section 11. It shall be unlawful to hold, manage or conduct any public gatherings, entertainment or party within Hopewell Township without providing for adequate sanitary facilities. There must be separate facilities or units for males and females. All facilities, except where public water and public sewer service is available, shall be of the chemical type. All facilities during the operation of the public gathering, entertainment or party, must be serviced once a day, at least. Section 12. Any person, corporation or firm desiring to hold, manage or conduct a public gathering of a type covered by this Ordinance must make application to the Township Secretary for a permit at least ten days in advance of the gathering or event and pay to the Township at that time any fee for issuance of said permit which the Township, by resolution, -2- 07-3721 CIVIL TERM may impose. Application forms shall be provided by the Township and require such information as the Township, by resolution, deems necessary and pertinent for the effective enforcement of the provisions of this Ordinance. Upon compliance with this section and with the provisions of this Ordinance, the Township Secretary shall issue the appropriate permit. Section 13. The Township may require the posting of cash bond, or surety bond with two or more sureties satisfactory to the Township, or with a corporate surety, in an amount which will reimburse the Township for its costs of clean-up, maintenance, and repair following the conduct of any public gathering within the Township contrary to the provisions of this Ordinance, prior to the issuance of the appropriate permit. Section 14. This Ordinance is not intended to apply to any public gathering of less than 750 individuals, and is not intended to apply to any public gathering where all the persons in attendance are related by blood or marriage. Section 15. Any person, firm or corporation violating any provision of this Ordinance shall, upon summary conviction thereof, be sentenced to pay a fine of not more than three hundred ($300.00) Dollars, and costs of prosecution, and, in default of payment of such fine and costs, to imprisonment for not more than ninety (90) days. Section 16. If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance. (Emphasis added.) In 2007, the Ordinance was amended as follows: AN ORDINANCE OF THE TOWNSHIP OF HOPEWELL, CUMBERLAND COUNTY, PENNSYLVANIA, PROVIDING FOR AMENDING HOPEWELL TOWNSHIP ORDINANCE NO. 79-2 WHEREAS, there exists an Ordinance regulating certain public gatherings in Hopewell Township, Cumberland County, Pennsylvania which is Ordinance 79-2; and WHEREAS, said Ordinance 79-2 was duly enacted August 6, 1979 and WHEREAS, the Board of Supervisors of the Township of Hopewell deems it in the best interests of the citizens of the Township of Hopewell for their general health, welfare and safety to amend Ordinance 79-2, and WHEREAS, the Board of Supervisors of the Township of Hopewell acknowledges that the impact on the community of large gatherings affects the surrounding community including the general welfare of those using roads and highways located within the Township, increases the need for emergency services, impinges the quiet enjoyment of residents of their property; and WHEREAS, large gatherings of persons tends to create additional trash, noise and air pollution, and adversely effect the natural environment, waterways, and open spaces of the Township unless properly regulated. -3- 07-3721 CIVIL TERM NOW THEREFORE, BE IT ENACTED AND ORDAINED by the Board of Supervisors of the Township of Hopewell, Cumberland County, Pennsylvania, and it is hereby enacted and ordained as follows: SECTION I. Section 14 of Ordinance 79-2 is amended to read as follows: This ordinance is intended to apply to any public gathering of 450 individuals or more, and it shall not apply to gatherings of fewer than 450 people. This Ordinance is not intended to apply to any public gathering within the Township where all persons in attendance are related by blood or marriage. SECTION Il. This Ordinance shall become effective five days after enactment. SECTION Ill. SEVERANCE CLAUSE- Should any section, paragraph, clause or phrase of this Ordinance be declared unconstitutional or invalid by a Court of competent jurisdiction, the remainder of said Ordinance shall not be affected thereby, and shall remain in full force and effect. SECTION IV. REPEALER CLAUSE All Ordinances or parts of Ordinances or Resolutions conflicting with the provisions of this Ordinance are hereby repealed to the extent of such conflict. (Emphasis added.) For approximately thirty years, plaintiffs have conducted a business, Doublin Gap Motocross, Inc., at 100 Reasner Lane, Hopewell Township, Cumberland County. Since 1979, the business has been subjected to compliance with the Hopewell Township Public Gathering Ordinance. On June 21, 2007, plaintiffs filed a complaint against the Township seeking a declaratory judgment that the Ordinance is "null and void."' Defendant filed an answer.2 Plaintiffs filed a motion for judgment on the pleadings ' See Allegheny Ludlum Steel Corp. v. Pennsylvania Public Utility Commission, 67 Pa. Commw. 400 (1982); Roeder v. Borough Council of Borough of Hatfield, 439 Pa. 241 (1970). 2 Under the heading "Affirmative Defense," defendant, citing the Judicial Code at 42 Pa.C.S. Section 5571(c)(5), avers that this action is barred by the statute of limitations. Section 5571(c)(5) provides that "questions relating to an alleged defect in the process of enactment or adoption of any ordinance ... shall be raised by appeal or challenge commenced within 30 days after the intended effective date of the ordinance ...." The substantive challenge to the ordinance in the present case is not to the "process of enactment or adoption of Hopewell Township's public gathering ordinance as amended." Therefore, Section 5571(c)(5) does not apply. See Holston v. West Goshen Township, 56 Pa. Commw. 283 (1981). -4- 07-3721 CIVIL TERM which was briefed and argued on January 23, 2008. A motion for judgment on the pleadings disposes of a case before trial where there exists no genuine issue of fact and where the moving party is entitled to a judgment as a matter of law. Carpenter & Carpenter v. City of Johnstown, 146 Pa. Commw. 274 (1992). 1. Plaintiffs maintain that the Hopewell Township public gathering ordinance is void for vagueness. "[A]n enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294 (1972). An enactment's prohibitions are clearly defined, and thus not vague, if they "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Id. "Laws must provide explicit standards for those who apply them" in order to prevent "arbitrary and discriminatory enforcement." Id. See also Commonwealth v. Balog, 672 A.2d 319 (Pa. Super. 1996). Plaintiffs argue that Section 14 of the Public Gathering Ordinance is vague because it does not prescribe the method of counting the people attending a public gathering and for not specifying whether the 450 person limit applies to the number of individuals present at a given time or to "the sum of all those persons who have come and gone throughout the day." A gathering is "a crowd; an assemblage." Webster's New Twentieth Century Dictionary 758 (2d ed. 1965). "Public gathering" in Section 14 must be read as meaning those individuals present at a given time and not those individuals who have come and gone throughout the day. Once an individual has gone, that individual cannot be said to be part of the crowd or assemblage, which now consists of those who have remained, and the departed individual can no longer be counted among their number. The Ordinance provides that a permit is needed for "any -5- 07-3721 CIVIL TERM public gathering of 450 individuals or more." That clearly means if at any time there are going to be 450 or more people gathered a permit is needed. Otherwise, a permit is not needed. The standard is explicit. The statute is not vague. II. Plaintiffs maintain that the adoption of the public gathering ordinance exceeds the authority granted a second class township. The Second Class Township Code provides at 53 P.S. Section 66506: General Powers. The board of supervisors may make and adopt any ordinances, bylaws, rules and regulations not inconsistent with or restrained by the Constitution and laws of this Commonwealth necessary for the proper management, care and control of the township and its finances and the maintenance of peace, good government, health and welfare of the township and its citizens, trade, commerce and manufactures. (emphasis supplied). The Code sets forth at Section 66527: Public Safety. The board of supervisors may adopt ordinances to secure the safety of persons or property within the township and to define disturbing the peace within the limits of the township. Enforcement provisions in the Code are set forth at Section 66601(c.1)(2): Enforcement as summary offenses. For an ordinance regulating building, housing, property maintenance, health, fire, public safety, parking, solicitation, curfew, water, air or noise pollution, the board of supervisors shall provide that its enforcement shall be by action brought before a district justice in the same manner provided for the enforcement of summary offenses under the Pennsylvania Rules of Criminal Procedure. (emphasis supplied). The Public Gathering Ordinance covers hours of operation, fire hazards, sanitary conditions, and illegal acts. We agree with defendant that the ordinance is directed at securing the safety of persons and property within the Township, the health and welfare of the Township and its citizens, and the maintenance of peace. Accordingly, the ordinance does not exceed the authority granted a Second Class Township. -6- 07-3721 CIVIL TERM III. Plaintiffs maintain that Hopewell Township is preempted by the Commonwealth from regulating the activities set forth in the public gathering ordinance. In Hydropress Environmental Services, Inc. v. Township of Upper Mount Bethel, County of Northampton, 836 A.2d 912 (Pa. 2003), the Supreme Court of Pennsylvania stated: The test for preemption in this Commonwealth is well established. Either the statute must state on its face that local legislation is forbidden, or "indicate[ ] an intention on the part of the legislature that it should not be supplemented by municipal bodies." Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 77 A.2d 616, 620 (1951). Plaintiffs have not persuaded us that any part of the Hopewell Township Public Gathering Ordinance is preempted by any laws of the Commonwealth. IV. Plaintiffs maintain that the effect of the public gathering ordinance constitutes de facto zoning in violation of the Pennsylvania Municipalities Planning Code. The Hopewell Township Public Gathering Ordinance is not a zoning ordinance. Plaintiffs right to use their land to conduct motocross events is not at issue. V. Plaintiffs maintain that the exemption in the public gathering ordinance for public gatherings where all the persons in attendance are related by blood or marriage creates and unconstitutional protected class of persons. This is not an issue we need decide. Even if plaintiffs are correct, Section 16 of the public gathering ordinance provides: If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance. Plaintiffs' position with regard to the exemption in the ordinance does not form a basis for granting the relief requested which is to declare the entire ordinance null and void. For the foregoing reasons, the following order is entered. -7- 07-3721 CIVIL TERM ORDER OF COURT AND NOW, this day of May, 2008, the motion of plaintiffs for a judgment on the pleadings, IS DENIED. By the Edgar B. Bayley, J. William A. Duncan, Esquire For Plaintiffs Sally Winder, Esquire For Defendant sal -8- Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249.7780 717.249-7800 FAX Attorney ID 22080 RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs VS. HOPEWELL TOWNSHIP, CUMBERLAND COUNTY, PENNA. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3721 CIVIL TERM CIVIL ACTION - Declaratory Judgment PLAINTIFFS' MOTION TO AMEND ORDER TO CERTIFY FOR PURPOSES OF TAKING AN INTERLOCUTORY APPEAL Plaintiffs, by their counsel, William A. Duncan, Esquire, request the Court to amend its Order of May 13, 2008 to add a certification pursuant to 42 Pa.C.S.A. section 702(b), permitting Plaintiffs to take an interlocutory appeal. In support of this motion, Plaintiffs aver the following: 1. This is an action arising from Plaintiffs' operation of a business in Hopewell Township, Defendant in this action. 2. Defendant Hopewell Township uses Hopewell Township Ordinance No. 79-2, its "Public Gathering Ordinance", to regulate Plaintiffs' business activities on its private land. 3. Plaintiff's claim, inter alia, that Hopewell Township, in enacting Ordinance No. 79-2, has exceeded its authority as set forth in the enumerated powers under the Pennsylvania Second Class Township Code, that the Ordinance as written is too vague and indefinite as to be capable of reasonable interpretation, that the provision selecting 450 persons as the number of persons required for regulation is arbitrary and without any reasonable relation to the health, safety, welfare and morals of the citizens of Hopewell Township, that enforcement of Ordinance No. 79- 2 constitutes de facto zoning in violation of the Pennsylvania Municipalities Planning Code and that Ordinance No. 79-2 creates a protected class of individuals through exempting persons in attendance who are related by blood or marriage. Plaintiffs seek to have Ordinance No. 79-2 declared null and void. 4. On December 19, 2007, Plaintiffs filed a motion for judgment on the pleadings, seeking to avoid the time and expense of a trial in this matter. 5. After hearing argument and considering Plaintiffs' Brief filed timely on January 11, 2008, President Judge Edgar B. Bayley entered an Order denying Plaintiffs' motion for judgment on the pleadings. 6. Although the Court's Order is interlocutory in nature, permitting Plaintiffs to appeal it at this time would be in the interest of justice in that the Order involves a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate appeal may materially advance the ultimate termination of this matter. WHEREFORE, the Plaintiffs request the Court to amend its Order pursuant to 42 Pa.C.S.A. section 702(b), to state that "the Order involves a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate appeal may materially advance the ultimate termination of this matter" thereby permitting Plaintiffs to take an immediate appeal therefrom. RESPECTFULLY SUBMITTED Wiliam A. Duncan, Esquire Attorney for Plaintiffs 1 Irvine Row, Carlisle, PA 17013 717-249-7780 Attorney ID 22080 RODNEY L. YENTZER, CAROL M. IN THE COURT OF COMMON PLEAS OF YENTZER, JEFFREY A. YENTZER CUMBERLAND COUNTY, PENNSYLVANIA AND RODNEY L. YENTZER, II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC., PLAINTIFFS V. HOPEWELL TOWNSHIP, DEFENDANT 07-3721 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR JUDGMENT ON THE PLEADINGS BEFORE BAYLEY, J. AND GUIDO, J. OPINION AND ORDER OF COURT Bayley, J., May 13, 2008:-- In 1979, Hopewell Township, a second class Township, adopted the following ordinance No. 79-2: AN ORDINANCE REGULATING PUBLIC GATHERINGS, PROVIDING FOR PUBLIC GATHERING PERMITS AND REQUIRING ADEQUATE FACILITIES THEREFORE, PROHIBITING CONSUMPTION OF ALCOHOLIC BEVERAGES AND POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES ON PUBLIC PROPERTY AND PUBLIC HIGHWAYS, PROHIBITING PUBLIC DRUNKENNESS, AND PROHIBITING FIGHTING, INDECENT CONDUCT, AND GATHERINGS FOR UNLAWFUL PURPOSES WITHIN THE TOWNSHIP, AND PRESCRIBING PENALTIES FOR VIOLATION. It is hereby ordained and enacted by the Board of Supervisors of Hopewell Township, Cumberland County, Pennsylvania, as follows: Section 1. It shall be unlawful to hold, manage or conduct any public gathering, entertainment, or party of any kind in the Township, except in compliance with the provisions of this ordinance. Section 2. It shall be unlawful to collect, gather, or be a member of any disorderly crowd, or any crowd gathered for any unlawful purpose. Section 3. It shall be unlawful for any person to commit any indecent act; or to appear in any public place not properly or decently garbed. Section 4. It shall be unlawful for any person to be in an intoxicated condition in or on any street, highway, or public place within the Township. 07-3721 CIVIL TERM Section 5. It shall be unlawful for any person to knowingly start a fight, or to fight, or to commit any assault or battery in any public place within the Township. Section 6. Any public gathering or event not held in a building shall be terminated not later than midnight, and it shall be unlawful for any person to remain on the premises between the hours of 1:00 and 6:00 a.m.; provided that employees of the holders, managers or conductors of such gathering or event whose duties necessitate it, may remain on the premises for the performance of such duties. Section 7. No such gathering, entertainment, or party shall be held or presented in any premises, unless such premises have been examined by the building inspector of the Township not more than three days in advance of the date of such gathering and found free of any fire hazard and found to be suitable for the purpose. Section 8. It shall be unlawful, within Hopewell Township, for any person to drink "liquor" or "malt or brewed beverages" upon any public street, public municipal parking lot, private parking lot open to public use or public park, or in any vehicle being operated or parked thereon. Section 9. It shall be unlawful, within Hopewell Township, for any person to have in such person's possession or in a vehicle under such person's control any open container containing "liquor" or "malt or brewed beverages" upon any public street, public municipal parking lot, private parking lot open to public use or public park. Section 10. The following words or phrases, unless the context clearly indicates otherwise, shall have the meaning ascribed to them in this section: "Liquor" and "Malt or Brewed Beverages" and "Container" and "Official Seal" shall mean the same as those words and phrases are defined in the "Liquor Code" of the Commonwealth of Pennsylvania. "Open" when used in connection with a container shall mean any container which has been perforated in the case of a can or similar container or a container on which the cap has been loosened or the cork displaced and the official seal torn or mutilated. Section 11. It shall be unlawful to hold, manage or conduct any public gatherings, entertainment or party within Hopewell Township without providing for adequate sanitary facilities. There must be separate facilities or units for males and females. All facilities, except where public water and public sewer service is available, shall be of the chemical type. All facilities during the operation of the public gathering, entertainment or party, must be serviced once a day, at least. Section 12. Any person, corporation or firm desiring to hold, manage or conduct a public gathering of a type covered by this Ordinance must make application to the Township Secretary for a permit at least ten days in advance of the gathering or event and pay to the Township at that time any fee for issuance of said permit which the Township, by resolution, -2- 07-3721 CIVIL TERM may impose. Application forms shall be provided by the Township and require such information as the Township, by resolution, deems necessary and pertinent for the effective enforcement of the provisions of this Ordinance. Upon compliance with this section and with the provisions of this Ordinance, the Township Secretary shall issue the appropriate permit. Section 13. The Township may require the posting of cash bond, or surety bond with two or more sureties satisfactory to the Township, or with a corporate surety, in an amount which will reimburse the Township for its costs of clean-up, maintenance, and repair following the conduct of any public gathering within the Township contrary to the provisions of this Ordinance, prior to the issuance of the appropriate permit. Section 14. This Ordinance is not intended to apply to any public gathering of less than 750 individuals, and is not intended to apply to any public gathering where all the persons in attendance are related by blood or marriage. Section 15. Any person, firm or corporation violating any provision of this Ordinance shall, upon summary conviction thereof, be sentenced to pay a fine of not more than three hundred ($300.00) Dollars, and costs of prosecution, and, in default of payment of such fine and costs, to imprisonment for not more than ninety (90) days. Section 16. If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance. (Emphasis added.) In 2007, the Ordinance was amended as follows: AN ORDINANCE OF THE TOWNSHIP OF HOPEWELL, CUMBERLAND COUNTY, PENNSYLVANIA, PROVIDING FOR AMENDING HOPEWELL TOWNSHIP ORDINANCE NO. 79-2 WHEREAS, there exists an Ordinance regulating certain public gatherings in Hopewell Township, Cumberland County, Pennsylvania which is Ordinance 79-2; and WHEREAS, said Ordinance 79-2 was duly enacted August 6, 1979 and WHEREAS, the Board of Supervisors of the Township of Hopewell deems it in the best interests of the citizens of the Township of Hopewell for their general health, welfare and safety to amend Ordinance 79-2, and WHEREAS, the Board of Supervisors of the Township of Hopewell acknowledges that the impact on the community of large gatherings affects the surrounding community including the general welfare of those using roads and highways located within the Township, increases the need for emergency services, impinges the quiet enjoyment of residents of their property; and WHEREAS, large gatherings of persons tends to create additional trash, noise and air pollution, and adversely effect the natural environment, waterways, and open spaces of the Township unless properly regulated. -3- 07-3721 CIVIL TERM NOW THEREFORE, BE IT ENACTED AND ORDAINED by the Board of Supervisors of the Township of Hopewell, Cumberland County, Pennsylvania, and it is hereby enacted and ordained as follows: SECTION I. Section 14 of Ordinance 79-2 is amended to read as follows: This ordinance is intended to apply to any public gathering of 450 individuals or more, and it shall not apply to gatherings of fewer than 450 people. This Ordinance is not intended to apply to any public gathering within the Township where all persons in attendance are related by blood or marriage. SECTION II. This Ordinance shall become effective five days after enactment. SECTION III. SEVERANCE CLAUSE- Should any section, paragraph, clause or phrase of this Ordinance be declared unconstitutional or invalid by a Court of competent jurisdiction, the remainder of said Ordinance shall not be affected thereby, and shall remain in full force and effect. SECTION IV. REPEALER CLAUSE All Ordinances or parts of Ordinances or Resolutions conflicting with the provisions of this Ordinance are hereby repealed to the extent of such conflict. (Emphasis added.) For approximately thirty years, plaintiffs have conducted a business, Doublin Gap Motocross, Inc., at 100 Reasner Lane, Hopewell Township, Cumberland County. Since 1979, the business has been subjected to compliance with the Hopewell Township Public Gathering Ordinance. On June 21, 2007, plaintiffs filed a complaint against the Township seeking a declaratory judgment that the Ordinance is "null and void."' Defendant filed an answer.2 Plaintiffs filed a motion for judgment on the pleadings ' See Allegheny Ludlum Steel Corp. v. Pennsylvania Public Utility Commission, 67 Pa. Commw. 400 (1982); Roeder v. Borough Council of Borough of Hatfield, 439 Pa. 241 (1970). Under the heading "Affirmative Defense," defendant, citing the Judicial Code at 42 Pa.C.S. Section 5571(c)(5), avers that this action is barred by the statute of limitations. Section 5571(c)(5) provides that "questions relating to an alleged defect in the process of enactment or adoption of any ordinance ... shall be raised by appeal or challenge commenced within 30 days after the intended effective date of the ordinance. . . ." The substantive challenge to the ordinance in the present case is not to the "process of enactment or adoption of Hopewell Township's public gathering ordinance as amended." Therefore, Section 5571(c)(5) does not apply. See Holsten v. West Goshen Township, 56 Pa. Commw. 283 (1981). -4- 07-3721 CIVIL TERM which was briefed and argued on January 23, 2008. A motion for judgment on the pleadings disposes of a case before trial where there exists no genuine issue of fact and where the moving party is entitled to a judgment as a matter of law. Carpenter & Carpenter v. City of Johnstown, 146 Pa. Commw. 274 (1992). 1. Plaintiffs maintain that the Hopewell Township public gathering ordinance is void for vagueness. "[A]n enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294 (1972). An enactment's prohibitions are clearly defined, and thus not vague, if they "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Id. "Laws must provide explicit standards for those who apply them" in order to prevent "arbitrary and discriminatory enforcement." Id. See also Commonwealth v. Balog, 672 A.2d 319 (Pa. Super. 1996). Plaintiffs argue that Section 14 of the Public Gathering Ordinance is vague because it does not prescribe the method of counting the people attending a public gathering and for not specifying whether the 450 person limit applies to the number of individuals present at a given time or to "the sum of all those persons who have come and gone throughout the day." A gathering is "a crowd; an assemblage." Webster's New Twentieth Century Dictionary 758 (2d ed. 1965). "Public gathering" in Section 14 must be read as meaning those individuals present at a given time and not those individuals who have come and gone throughout the day. Once an individual has gone, that individual cannot be said to be part of the crowd or assemblage, which now consists of those who have remained, and the departed individual can no longer be counted among their number. The Ordinance provides that a permit is needed for "any -5- 07-3721 CIVIL TERM public gathering of 450 individuals or more." That clearly means if at any time there are going to be 450 or more people gathered a permit is needed. Otherwise, a permit is not needed. The standard is explicit. The statute is not vague. II. Plaintiffs maintain that the adoption of the public gathering ordinance exceeds the authority granted a second class township. The Second Class Township Code provides at 53 P.S. Section 66506: General Powers. The board of supervisors may make and adopt any ordinances, bylaws, rules and regulations not inconsistent with or restrained by the Constitution and laws of this Commonwealth necessary for the proper management, care and control of the township and its finances and the maintenance of peace, good government, health and welfare of the township and its citizens, trade, commerce and manufactures. (emphasis supplied). The Code sets forth at Section 66527: Public Safety. The board of supervisors may adopt ordinances to secure the safety of persons or property within the township and to define disturbing the peace within the limits of the township. Enforcement provisions in the Code are set forth at Section 66601(c.1)(2): Enforcement as summary offenses. For an ordinance regulating building, housing, property maintenance, health, fire, public safety, parking, solicitation, curfew, water, air or noise pollution, the board of supervisors shall provide that its enforcement shall be by action brought before a district justice in the same manner provided for the enforcement of summary offenses under the Pennsylvania Rules of Criminal Procedure. (emphasis supplied). The Public Gathering Ordinance covers hours of operation, fire hazards, sanitary conditions, and illegal acts. We agree with defendant that the ordinance is directed at securing the safety of persons and property within the Township, the health and welfare of the Township and its citizens, and the maintenance of peace. Accordingly, the ordinance does not exceed the authority granted a Second Class Township. -6- 07-3721 CIVIL TERM III. Plaintiffs maintain that Hopewell Township is preempted by the Commonwealth from regulating the activities set forth in the public gathering ordinance. In Hydropress Environmental Services, Inc. v. Township of Upper Mount Bethel, County of Northampton, 836 A.2d 912 (Pa. 2003), the Supreme Court of Pennsylvania stated: The test for preemption in this Commonwealth is well established. Either the statute must state on its face that local legislation is forbidden, or "indicate[ ] an intention on the part of the legislature that it should not be supplemented by municipal bodies." Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 77 A.2d 616, 620 (1951). Plaintiffs have not persuaded us that any part of the Hopewell Township Public Gathering Ordinance is preempted by any laws of the Commonwealth. IV. Plaintiffs maintain that the effect of the public gathering ordinance constitutes de facto zoning in violation of the Pennsylvania Municipalities Planning Code. The Hopewell Township Public Gathering Ordinance is not a zoning ordinance. Plaintiffs right to use their land to conduct motocross events is not at issue. V. Plaintiffs maintain that the exemption in the public gathering ordinance for public gatherings where all the persons in attendance are related by blood or marriage creates and unconstitutional protected class of persons. This is not an issue we need decide. Even if plaintiffs are correct, Section 16 of the public gathering ordinance provides: If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance. Plaintiffs' position with regard to the exemption in the ordinance does not form a basis for granting the relief requested which is to declare the entire ordinance null and void. For the foregoing reasons, the following order is entered. -7- 07-3721 CIVIL TERM ORDER OF COURT AND NOW, this day of May, 2008, the motion of plaintiffs for a judgment on the pleadings, IS DENIED. By the Court, /sin & Edgar B. ayley, J. William A. Duncan, Esquire For Plaintiffs Sally Winder, Esquire For Defendant :sal 'q4ut: to, ??+ 1Af80f, I "me unto 34( WY I it Wift F% _ a yt.U ZJ Imb ANN -8- C ?, !- ?,-J? ? tai'-Ti 7 - ?? _ ? ? ?? rr. ?;: ? ?? _.r ?' ? [V ?' S '? .? tom.. ? G3+ 0 JUN 0 62008, /y4( RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLTN GAP MOTOCROSS, INC. Plaintiffs VS. HOPEWELL TOWNSHIP, CUMBERLAND COUNTY, PENNA. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 07-3721 CIVIL TERM CIVIL ACTION - Declaratory Judgment AMENDMENT TO ORDER NOW TO WIT, this day of , 2008, the Court having denied Plaintiffs' Motion for Judgment on the Pleadings in the above entitled matter by Order dated May 13, 2008, issued by President Judge Edgar B. Bayley, hereby acknowledges that the Order involves a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate appeal may materially advance the ultimate termination of this matter and directs that the Order dated May 13, 2008 be amended to include the aforesaid acknowledgment. P.J. •ar 'y 1 0 1. J Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 119 7- 37a-f ---------------------------------------------- 08/07 cr12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer and Rodney L. Yentzer II, t/d/b/a Doublin Gap Motocross, Inc., Petitioners V. Hopewell Township, Respondent ORDER No. 1218 C.D. 2008 Before the Court is a petition for permission to appeal an order of the Court of Common Pleas of Cumberland County that denied a motion for judgment on the pleadings in a declaratory judgment action asserting that a township ordinance exceeds the township's enumerated authorities and/or is void for vagueness. After a review of the petition, the Court does not view the matter as presenting a controlling issue of law as to which there is a substantial ground for difference of opinion. Accordingly, this 23rd day of July, 2008, the petition for permission to appeal is denied. Cam. . R ee Cohn Jub lirer, Judge COW from the Record JUL 2 4 2008 end Ordar W t? 4,..3 ? ' ? T 1 -4 ""? °'t i S„ a : j=? 4 .} ? v t _. ? .- :a . ? ?? '.?: Duncan & Hartman, P.C. William A. Duncan, Esquire I Irvine Row, Carlisle. Pennsylvania 17013 717.2}9.7780 717.249-7800 FAX Attorney ID 32080 aai o R?uG- t9 A'?'? 8-'? RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3721 HOPEWELL TOWNSHIP, : CIVIL ACTION CUMBERLAND COUNTY, PENNA. Defendants HOPEWELL TOWNSHIP BOARD : IN THE COURT OF COMMON PLEAS OF OF SUPERVISORS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. 07-5186 CIVIL TERM NO. 07-5187 CIVIL TERM vs. RODNEY L. YENTZER, II : CIVIL ACTION RODNEY L. YENTZER, CAROL M. YENTZER AND JEFFREY A. YENTZER, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Defendants RULE TO SHOW CAUSE AND NOW.. this day of August, 2010, upon consideration of the foregoing Petition For a Rule to Show Cause Why an Order Granting Consolidation Should Not Issue, it is hereby Ordered and Decreed as follows: 1. A Rule is issued upon the Hopewell Township Board of Supervisors to show cause why the Petitioner is not entitled to the relief requested as set forth in the attached Order of Court. 2. The Respondent shall answer the Petition within 20 days of service by regular mail. 3. Notice of entry of this Order shall be provided to all parties. By the Court 3. t?ES .'rte t LL ?T' t?t? • 6.1LtsUC?? l /14 /to . 1~ 1t.ODNEY L. YENTZER, CAROL M.: IN THE COURT OF COMMON PLEAS OF YENTZER, ~ ~ Y A. YENTZER :CUMBERLAND COUNTY, PENNA. and RODNCY L. YENTZER II, t/dlbla DOUBLIN GAP : NOs~07-3721 CIVIL TERM MOTOCROSS, INC., ~, 4~ Plaints cn ~o ,w,. CIVII.. ACTION ~ ~ ~ f ~ ~" IiOPEWELL TOWNSHIP, CUMBERLAND Ct)UNTY, PENNA, ~ 4? Defendant : w .~- HOPEWELL TOWNSHIP BOARD OF : IN THE COURT OF COMMOM SUPERVISORS :PLEAS OF CUMBERLAND :COUNTY, PENNSYLVANIA Piaigtiff v. RODNEY L. YENTZER, II, RODNEY L. YENTZER, CAROL M. YENTZER AND JEFFREY A. YENTZER, individually And t/d/b/a DOUBLIN GAP MOTOCROSS, INC. No. 07-5186, CTVII. TERM No. 07-5187 CIVIL TERM CIVIL ACTION - LAW APPEAL FROM DISTRICT JUSTICE ANSWER TO PETITION TO CONSOLIDATE COMES, NOW Hopewell Township Board of Supervisors, by and through their solicitor, Sally J. Winder, Esquire and does file the following Answer to Petitioners' Petition for Consolidation: 1. Admitted. 2. Admitted. By way of fwther response, it is noted that Petitioners sufly requested Judge Bayley modify his Order so that Petitioners would be in a position to file an Appeal to Commonwealth Court. Judge Bayley modified his Order b~rt not his decision as filed, a copy of which is marked Exhibit "A" attached hereto, and Petitiotreis filed an appeal with Commonwealth Court Commonwealth Court subsequently Wiled against Petitioners upholding Judge Bayley's opinion that the Township Ordmance is valid. 3. Admitted in part and denied in part. Interrogatories and Request for Peoduction of Documents were served upon Hopewell Township. ~-nswers to Interrogatories have been 4 served and Documents have been produced.ln response to several requests objections were filed. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied as stated. Defendant Rodney Yentzer, II and Jeffrey Yentzer were deposed which depositions took place on two different dates due to Rodney Yentzer, II's schedule. 8. Admitted. 9. Denied. The action filed to No. 07-5186 arises out of a violation of the Public Gathering Ordinance, as amended. The action filed to No. 07-5187 arises out of a violation of the Hopewell Township Zoning Ordinance. 10. Denied. On the contrary, evidence and proof required for the Zoning Ordinance violation is not the same as is required for proof of the Public Gathering Ordinance violation. 11. Deiced. On the contrary, Hopewell Township believes and therefore avers that the validity of the Township Ordinance 79 2, as amended, the Public Gyring Ordinance has already been determined by this Court and the opinion of this Court finding the Ordinance valid has been upheld by the Commonwealth Court Therefore, the interest of judicial economy in this matter would dictate that the Township cases docketed to Nos. 07-5186 and 07-5187 proceed separately from the case docketed to No. 07-3721.. WHEREFORE, this Honorable Court should enter an Order denying Plaintiff Yentz~s' Petition thus allowing Hopewell Township to proceed with cases Nos. 07-5186 and 07-5187. Respectfully, submitted, J Sally J. finder Attorney for Hopewell Township Court ID 24507 P.O. Box 341 Newville, PA 17241 VERIFICATION I verify that the statements made in this pleading are true and correct to the best of my knowledge, information, and belief and that as an elected member of the Board of Supervisors of Hopewell Township, I am authorized to execute this verification. These statements are made either upon personal knowledge or upon information received in the conduct of my position as Supervisor. This statement is made subject to the penalties of 18 Pa. C. S. Section 4904 relating to unsworn falsifications to authorities, which provides that if I make knowingly false statements I may be subject to criminal penalties. -, Date: ~ Curtis W. Myers Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249.7780 717.249-7800 FAX Attorney ID 22080 RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs VS. FILED-OF F IC' A. t^ 1! CT THE PROTHONO 2911 FEB -1 AM 9: # -11 CUMBERLAND COO' PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 07-3721 HOPEWELL TOWNSHIP, : CIVIL ACTION CUMBERLAND COUNTY, PENNA. Defendants HOPEWELL TOWNSHIP BOARD : IN THE COURT OF COMMON PLEAS OF OF SUPERVISORS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff :NO. 07-5186 CIVIL TERM NO. 07-5187 CIVIL TERM vs. RODNEY L. YENTZER, II : CIVIL ACTION RODNEY L. YENTZER, CAROL M. YENTZER AND JEFFREY A. : YENTZER, t/d/b/a DOUBLIN GAP ; MOTOCROSS, INC. Defendants MOTION FOR HEARING ON PETITION TO CONSOLIDATE 1. Rodney L. Yenzter, II, Rodney L. Yentzer, Carol M. Yentzer and Jeffrey A. Yentzer t/d/b/a Doublin Gap Motocross, Inc. filed a Petition for a Rule to Show Cause Why an Order Granting Consolidation Should Not Issue on or about August 17, 2010. 2. A Rule was issued by Judge Albert Masland on Hopewell Township Board of Supervisors to show cause why Petitioners should not be granted the relief requested. 3. Hopewell Township Board of Supervisors by and through their attorney Sally J. Winder, filed an Answer to the Petition to Consolidate on or about September 1, 2010. 4. Former President Edgar B. Bayley presided over a hearing on Civil 07-4122, a Complaint for Injunctive Relief filed by Hopewell Township Board of Supervisors. Judge Bayley also denied a Motion for Judgment on the Pleadings on Civil 07-3721 which was filed by the Plaintiffs in that matter. 5. Petitioners hereby request that a hearing be scheduled in order that the Court may determine whether it is appropriate to consolidate some or all of the above-captioned matters. Respectfully submitted, William A. Duncan Attorney I.D. 22080 1 Irvine Row Carlisle, PA 17013 717-249-7780 Dated: CERTIFICATE OF SERVICE AND NOW, this :Ittt . day of February, 2011, the undersigned does hereby certify that he did, on this date serve a true and correct copy of this Motion upon Sally J. Winder, Attorney for the Hopewell Township Board of Supervisors by regular mail to the following address: Sally J. Winder, Esquire P.O. Box 341 Newville, PA 17241 William A. Duncan 1 Irvine Row Carlisle, PA 17013 S ., - I RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs VS. HOPEWELL TOWNSHIP, CUMBERLAND COUNTY, PENNA. Defendants HOPEWELL TOWNSHIP BOARD OF SUPERVISORS Plaintiff VS. RODNEY L. YENTZER, II RODNEY L. YENTZER, CAROL M. YENTZER AND JEFFREY A. YENTZER, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-3721 CIVIL ACTION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-5186 CIVIL TERM o NO. 07-5187 CIVIL TERM -- ?? r' ca r -v CIVIL ACTION' ?', a crl) :?L CD C) C? ORDER jv AND NOW this __O:?day of ; 4)Lw ? ? after due consideration of the Motion of Rodney L. Yentzer, II, Rodney L. Yentzer, Carol M. Yentzer and Jeffrey A. Yentzer, t/d/b/a Doublin Gap Motocross, Inc. filed by William A. Duncan, Esquire to consolidate the above-captioned actions into one proceeding, the Court hereby ORDERS that a hearing on the matter be set for the ` tt day of 2011 in Courtroom at ( 3 o'clock _.m. J. Winder, William A. bvneaA,`?Z ? to tl RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER AND RODNEY L. YENTZER, II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC., PLAINTIFFS V. HOPEWELL TOWNSHIP, DEFENDANT HOPEWELL TOWNSHIP BOARD OF SUPERVISORS, PLAINTIFF V. RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 07-3721 CIVIL TERM ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AND RODNEY L. YENTZER, II, t/d/b/a : DOUBLIN GAP MOTOCROSS, INC., 07-5186 CIVIL TERM DEFENDANTS 07-5187 CIVIL TERM ORDER OF COURT AND NOW, this day of June, 2011, upon consideration of the proposed schedules submitted by Sally J. Winder, Esquire, and c-:> j _ PTA as ` mm ? M - r- Fes' : -<> CO o ) C . , 5 ? `M. W William A. Duncan, Esquire, on behalf of their clients, the court directs that case Number 07-3721 proceed as follows: 1. Discovery shall be completed by August 1, 2011. 2. A pretrial conference shall be held on August 22, 2011, at 11:00 a.m., in chambers. 3. Trial shall commence on Tuesday, September 27, 2011, at 8:45 a.m., in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Albert H. Maslan , J. William A. Duncan, Esquire For Yentzers t/d/b/a Doublin Gap Motocross, Inc. Sally J. Winder, Esquire For Hopewell Township kl? Oopie'5 101 61'[0 :saa RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER AND RODNEY L. YENTZER, II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC., PLAINTIFFS V. HOPEWELL TOWNSHIP, DEFENDANT C l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 07-3721 CIVIL TERM IN RE: PRETRIAL CONFERENCE ORDER OF COURT A pretrial conference was held on August 22, 2011, and was attended by Plaintiffs' counsel William A. Duncan, Esquire, and Defendant's counsel Sally J. Winder, Esquire. A threshold issue, first m -1 z =;0 cl) rn -o rn .<D C ? = : T> DO -- ?r' raised by counsel at the May 9, 2011 argument on consolidation, concerns the impact of the May 13, 2008, ruling by the Honorable Edgar B. Bayley, P.J., which denied Plaintiff's motion for judgment on the pleadings. Although Judge Bayley's opinion is eminently instructive with respect to legal issues that may be presented, inasmuch as it was Plaintiff's motion, unlike a defense motion for summary judgment or judgment on the pleadings, it is not dispositive of the action. Therefore, this matter shall proceed to trial on Tuesday, September 27, 2011 as previously ordered. Counsel shall exchange the curriculum vitae and reports of all experts no later than September 9, 2011. Counsel shall exchange copies of proposed exhibits no later than September 19, 2011 and shall endeavor or reach stipulations regarding admissibility prior to trial. Inasmuch as Defendant did not submit a pretrial memorandum, Defendant shall submit a list of proposed witnesses and exhibits to Plaintiff no later than September 19, 2011. The parties shall prepare trial briefs that address, at a minimum, the impact of Judge Bayley's order of May 13, 2008 on this trial and the application of Ordinance 79-2 to Plaintiffs' business. The briefs should include proposed findings of facts and conclusions of law. By the Court, Albert H. Masland, J. William A. Duncan, Esquire For Yentzers t/d/b/a Doublin Gap Motocross, Inc. Sally J. Winder, Esquire For Hopewell Township n _ w led :saa 81,a5/tl ?1L$ • SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson t Sheriff i ` _ i ?', Jody S Smith r y f i J v o r l (. r, Chief Deputy f ` ; . Richard W Stewart C 1its E RLA ? C„.1 Solicitor O `E ?' N ?? '? Y €?°, ; , "; ,f' Rodney L. Yentzer (et al.) Case Number vs. 2007-3721 John McCrea, III (eta[.) SHERIFF'S RETURN OF SERVICE 09/02/2011 11:15 AM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on September 2, 2011 at 1115 hours, he served a true copy of the within Subpoena and check #23489 in the amount of $32.00, upon the within named defendant, to wit: Danny G. Forrester, by making known unto himself personally, at 100 Fox Hill Road, Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time handing to him personally the said true and correct copy of the same. NOAH CLINE, DEPUTY 09/02/2011 09:55 AM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on September 2, 2011 at 0955 hours, he served a true copy of the within Subpoena and check #23487 in the amount of $32.00, upon the within named defendant, to wit: John McCrea III, by making known unto himself personally, at 221 Doubling Gap Road, Newville, Cumberland County, Pennsylvania 17241 its contents and at the same time handing to him personally the said true and correct copy of the same. NOAH CLINE, DEPUTY 09/02/2011 10:46 AM - Nosh Cline, Deputy Sheriff, who being duly sworn according to law, states that on September 2, 2011 at 1046 hours, he served a true copy of the within Subpoena and check #23488 in the amount of $32.00, upon the within named defendant, to wit: Eugene Mellinger, by making known unto himself personally, at 100 Fox Hill Road, Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time handing to him personally the said true and correct copy of the same. NOAH CLINE, DEPUTY 09/02/2011 10:34 AM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on September 2, 2011 at 1034 hours, he served a true copy of the within Subpoena and check #23491 in the amount of $32.00, upon the within named defendant, to wit: Curtis W. Myers, by making known unto himself personally, at 405 Newville Road, Newburg, Cumberland County, Pennsylvania 17240 its contents and at the same time handing to him personally the said true and correct copy of the same. NOAH CLINE, DEPUTY 09/07/2011 07:53 PM - Der:nis Fry, Deputy Sheriff, who being duly sworn according to law, states that on September 7, 2011 at 1953 hours, he served a true copy of the within Subpoena and Check #23490 in the amount of $32.00, upon the within named defendant, to wit: Gregory Alleman, by making known unto himself personally, at 305 W. Creek Road, Newburg, Cumberland County, Pennsylvania 17240 its contents and al the same time handing to him personally the said true and correct copy of the same. (cj Counr,su;te sne,nft. re-^os?!i DENIMS FRY, DEPU SHERIFF COST: $184.44 September 19, 2011 SO ANSWERS, R-ONI'V R ANDERSON, SHERIFF q CountySu?t3 Sheriff, Teieosoft in, SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy 2 FEB -7 P1 i 19: 1 Richard W Stewart Solicitor Rodney L. Yentzer (et al.) vs. John McCrea, III (et al.) SHERIFF'S RETURN OF SERVICE U' SERLsa a COUNT EENINISYLYANIA Case Number 2007-3721 01/18/2012 10:33 AM - Elizabeth Muller, Deputy Sheriff, who being duly sworn according to law, states that on January 18, 2012 at 1033 hours, she served a true copy of the within Subpoena and check #23673 in the amount of $32.00, upon the within named defendant, to wit: John McCrea III, by making known unto Sally Winder, Wife of Defendant at 221 Doubling Gap Road, Newville, Cumberland County, Pennsylvania 17241 its contents and at the same time handing to her personally the said true and correct copy of the same. ELI BETH MULLER, DEPUTY 01/18/2012 01:23 PM - Elizabeth Muller, Deputy Sheriff, who being duly sworn according to law, states that on January 18, 2012 at 1323 hours, she served a true copy of the within Subpoena and check #23674 in the amount of $32.00, upon the within named defendant, to wit: Eugene Mellinger, by making known unto himself personally, at 9 Hilltop Road, Newburg, Cumberland County, Pennsylvania 17240 its contents and at the same time handing to him personally the said true and correct copy of the same. ELI ETH MULLER, DEPUTY 01/18/2012 01:15 PM - Elizabeth Muller, Deputy Sheriff, who being duly sworn according to law, states that on January 18, 2012 at 1315 hours, she served a true copy of the within Subpoena and check #23677 in the amount of $32.00, upon the within named defendant, to wit: Curtis W. Myers, by making known unto Barbara Myers, Wife of Defendant at 405 Newville Road, Newburg, Cumberland County, Pennsylvania 17240 its contents and at the same time handing to her personally the said true and correct copy of the same. tY'lU,(.c_,0, ELIZA ETH MULLER, DEPUTY 01/19/2012 04:43 PM - Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on January 19, 2012 at 1643 hours, he served a true copy of the within Subpoena and check #23675 in the amount of $32.00, upon the within named defendant, to wit: Danny G. Forrester, by making known unto Linda Forrester, Wife of Defendant at 100 Fox Hill Road, Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time handing to her personally the said true and correct copy of the same. RYAN BURGETT, DEPUTY IC) GOtmrvSulte Sheriff, Ie12osoft Inc. 01/19/2012 04:51 PM - Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on January 19, 2012 at 1651 hours, he served a true copy of the within Subpoena and check #23676 in the amount of $32.00, upon the within named defendant, to wit: Gregory Alleman, by making known unto himself personally, at 305 W. Creek Road, Newburg, Cumberland County, Pennsylvania 17240 its contents and ai the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $184.88 February 03, 2012 RYAN BURGETT, DEPUTY SO ANSWERS, WON R ANDERSON, SHERIFF C.cuntySu to Sheriff, TEeieGeo`t. Inc. RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER, AND RODNEY L. YENTZER, II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC., Plaintiffs V. HOPEWELL TOWNSHIP, CUMBERLAND COUNTY, PENNA.: Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3721 CIVIL TERM ORDER OF COURT AND NOW, this 8th day of February, 2012, following a nonjury trial, the Court directs that a transcript be prepared and that within 20 days of receipt of the transcript plaintiff shall submit proposed findings of fact, conclusions of law, and a proposed order along with a brief addressing any outstanding legal issues. The defendant will file its proposed findings, conclusions, and brief within seven days of receipt of plaintiffs' proposed findings. William A. Duncan, Esquire For Plaintiffs Sally J. Winder, Esquire For Defendant prs ip`,,'S ma. jed 441/a AK C C9 N b D© ? D ? !Y -? o c? o r7) By the Court, Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 717.249-7800 FAX Attorney ID 22080 RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs vs. HOPEWELL TOWNSHIP, CUMBERLAND COUNTY, PENNA. Defendants s Ir ? t ? ! 1 it ? ' ! f 0 ,- 7 r rr " I 'r r r? :°r?t r r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO 07-3721 CIVIL TERM CIVIL ACTION PROPOSED FINDINGS OF FACT Plaintiffs propose the following Findings of Fact: 1. Hopewell Township Ordinance 79-2 as amended applies to conduct of persons on public streets and public places within Hopewell Township. Plaintiff's Exhibits 2 and 3. 2. Doublin Gap Motocross Inc. conducts its operations on private land. Stipulated; Plaintiff's Exhibit 1; N.T. 95 lines 5-7. 3. Doublin Gap Motocross Inc. is a Pennsylvania Corporation organized in 1996 as a business corporation under the laws of the Commonwealth of Pennsylvania. Stipulated. 4. Predecessors to Doublin Gap Motocross Inc. operated the facility for motocross racing and related activities prior to the enactment of Hopewell Township Ordinance 79-2. N.T. 76 lines 6- 8, line 23. 5. The operation of Doublin Gap Motocross Inc. involves several racing and practice tracks, administrative buildings, storage facilities, viewing towers and other structures related to the operation of the business. Plaintiff's Exhibit 9; N.T. 97 lines 15 and 18; N.T. 103 lines 22-24. 6. The land associated with the operation of Doublin Gap Motocross Inc. activities is comprised of 40 acres as set forth in Deed Book 135 page 521. Judicial Notice; Plaintiffs Exhibit 1. 7. Access to Doublin Gap Motocross Inc. facility is located on Pa. State Road 696. Stipulated. 8. Ordinance 79-2 does not provide a mechanism for conducting a count of persons at a public gathering. Plaintiffs Exhibits 2 and 3; NT 49 lines 5-13 9. Hopewell Township has never promulgated any rules or regulations or manuals providing the method for counting persons at a public gathering. NT 72 lines 17-25; NT 163 lines 10-13. 10. No persons or corporations or entities other than the Plaintiff have ever been issued or applied for a public gathering permit. Plaintiffs Exhibits 7 and 8. 11. Other than Plaintiffs, no persons, businesses or entities have ever been cited for alleged violations of Ordinance 79-2 as amended. Stipulated. 12. Doublin Gap Motocross Inc. is located in an Agricultural Conservation District as defined by the zoning ordinance of Hopewell Township. Stipulated; Plaintiffs Exhibits 5 and 6; NT 70 line2. 13. The operation of the Doublin Gap Motocross Inc. Racing facility and its related activities including overnight parking predate the township zoning ordinance. NT 76 lines 6-8; 21-15 N.T. 77 lines 1-10; N.T. 93 lines 23-25; NT 78 lines 1-7. 14. The operation of the Doublin Gap Motocross Inc. Racing facility and its related activities including overnight parking are deemed to be non-conforming uses. NT 70 line 5. 15. The cost of a public gathering permit charged by Hopewell Township is $300 per permit. Stipulated. 16. Hopewell Township does not maintain a police department. Stipulated. 17. Police services to Hopewell Township are rendered by Pennsylvania State Police. Stipulated. 18. Hopewell Township does not operate a fire department nor provide emergency services for the benefit of its residents. NT 51 lines 1-3 19. Hopewell Township does not maintain an ambulance or EMT services. NT 51 lines 7-10. 20. State Road No. 696 is owned and maintained by the Commonwealth of Pennsylvania not by Hopewell Township. Stipulated. 21. Hopewell Township employs third party vendors to review applications for building permits, occupancy limits, and other matters related to development of land within the township. 22. Hopewell Township amended the public gathering ordinance without consultation with any third party vendors with expertise pertaining to the subject matter of the ordinance. NT 169 lines 17-20. 23. In the agricultural district lawful uses such as farming create noise and dust and are permitted to operate twenty-four hours a day on each day of the year. Plaintiff's Exhibits 5 and 6 24. The impetus of Ordinance 79-2 was to prevent an unorganized non-business ad-hoc gathering of college students from congregating in the township. NT 35 lines 23-15; NT 36 lines 1-6; NT 37 lines 5-8; NT 42 lines 21-25. 25. The body of the ordinance drafted by the solicitor of Hopewell Township refers to the conduct of those students which the township supervisors found to be objectionable. Plaintiffs Exhibit 2. 26. Plaintiff is limited to eleven (11) persons per acre in the conduct of his business without being subject to the regulations imposed by Ordinance 79-2 as amended. NT 1.04 lines 16-25. 27. Ordinance 79-2 and Ordinance 79-2 as amended regulate the hours of operation of the business known as Doublin Gap Motocross, Inc. as it prevents patrons from staying overnight if the business has obtained a public gathering permit. Plaintiffs Exhibits 2 and 3; NT 163 lines 18- 25; NT 164 lines 1-2. 28. Patrons of Doublin Gap Motocross, Inc. May stay overnight if no public gathering permit has been obtained. NT 81 lines 16-20; NT 164 lines 23-25; NT 165 lines 1-2; NT 101 lines 12-15 29. Patrons of Doublin Gap Motocross, Inc. may not stay overnight if a permit has been obtained regardless of the actual number of attendees. Plaintiffs Exhibits 2 and 3; NT 81 lines 21-25; NT 163 lines 18-25; NT 164 lines 1-2; NT 184 line 25; NT 185 lines 1-5. 30. Permitted public gatherings held within a building are not subject to regulation of hours. Plaintiffs Exhibits 2 and 3; NT 183 lines 24-25; NT 184 lines 1-10. 31. The activities of Doublin Gap Motocross, Inc. involve persons gathering in buildings and structures. NT 83 lines 4-25; NT 84 lines 1-7 ; NT 84 lines 19-25; NT 85 lines 1-5; NT 103 lines 21-25; NT 104 lines 1-13. 32. Hopewell Township Ordinance 79-2 as amended is an ordinance which regulates the conduct and operation of Plaintiff's business, Doublin Gap Motocross, Inc.. NT 107 lines 22-15; NT 108 lines 1-6; NT 109 lines 16-18; NT 139 line 25; NT 140 lines 1-7; NT 184 line25; NT 185 lines 1- 5; 33. The Pennsylvania Second Class Township Code enumerates specific business activities which the Board of Supervisors may license and regulate by Ordinance. Plaintiff's Exhibit 4, Judicial Notice of Second Class Township Code. 34. Under Sections 66532 of the Second Class Township Code the enumerated activities are: transient merchants, cable television companies, restaurants, junk dealers, junk yards and scrap yards. Plaintiff s Exhibit 4. 35. Plaintiffs business activities are not enumerated in Section 66532 of the Second Class Township Code. Plaintiff s Exhibit 4. 36. Hopewell Township Ordinance 79-2 as amended requires application more than ten (10) days prior to an event. Plaintiffs Exhibit 3 37. Persons related by blood or marriage conducting an event are exempt from obtaining a public gathering permit. Plaintiffs Exhibits 2 and 3. 38. Attendance at events conducted by Doublin Gap Motocross, Inc. is affected by weather conditions. NT 89 lines 10-17; NT 98 lines 7-17; NT 100 lines 11-15 NT 100 lines 6-10 39. Overnight parking is important to the business conducted by Doublin Gap Motocross, Inc. NT 80 lines 18-25; NT 81 lines 1-9; NT 100 lines 19-25; NT 101 lines 1-7; lines 8-25; NT 102 lines 1-3, NT 104 lines 23-25; NT 104 lines 1-3, NT 109 lines 13-25; NT 109 lines 1-2 40. The business conducted by Doublin Gap Motocross, Inc. has in place permanent procedures regulating the concerns of Hopewell Township regarding traffic, noise, dust, sanitary facilities and security. NT 106 lines 11-25; NT 107 lines; NT 110 lines 8-25; NT 111 lines 1-2; NT 112 lines 13-18; NT 102 lines 13-25; NT 103 lines 1-20; NT 78 lines 20-25; NT 84 lines 8-18; NT 85 lines 13-18; NT 88 lines 8-13 41. The majority of people who stay overnight at Doublin Gap Motocross are in motor homes or campers. NT. 84 lines 19-25; NT 85 lines 1-5; NT 109 lines 4-5 42. The events held by Doublin Gap Motocross, Inc. end by around 6:00 p.m. on Saturdays and 7:00 p.m. on Sundays. NT 130 lines 8-19; NT 134 lines 10-13; NT 173 lines 12-16; NT 187 lines 7-17; NT 188 lines 3-7. Respectfully submitted, Duncan & Hartman, P.C. \ ?)fl )JAA M i liam A. uncap, Esquire- W Attorney for Defendant 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 Dated: March 27, 2012 Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 717.249-7800 FAX Attorney ID 22080 RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs vs. HOPEWELL TOWNSHIP, CUMBERLAND COUNTY, PENNA. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO 07-3721 CIVIL TERM : CIVIL ACTION PROPOSED CONCLUSIONS OF LAW 1. It is beyond the authority of Hopewell Township, a second class township, to regulate the business conducted by Doublin Gap Motocross, Inc. through use of Ordinance 79-2 as amended, consequently, Ordinance 79-2 as amended does not apply to Plaintiff. See Proposed Findings of Fact No. 3,6,15,27,28,30,32,33,34,35. Authorities: Second Class Township Code, 53 P.S. Section 66532 (a) The board of supervisors maylicense and regulate, by ordinance, the following business activities within the township: (1) Transient merchants.... (2) Cable television companies.... (3) Restaurants... (4) Junk dealers ... (b) The board of supervisors may establish license fees for regulated businesses enumerated in subsection (a). These fees shall bear a reasonable relationship to the cost of administering the ordinance and regulating, inspecting and supervising each business. Licenses may be issued on an annual or monthly basis and any fee charged to transient merchants shall not exceed three hundred dollars ($300) per year or twenty-five dollars ($25) for each month or part of a month. Plaintiff's trial brief further discusses the police power of second class townships and the limited authority granted to such township by the legislature with regard to the exercise of police powers. It is fundamental that municipal corporations are creatures of the State and that the authority of the Legislature over their powers is supreme. Municipal corporations have no inherent powers and may do only those things which the Legislature has expressly or by necessary implication placed within their power to do so. Denbow v. Borough of Leetsdale, 729 A.2d 113, 119, 556 Pa. 567, 5756 (1999) Plaintiff concedes that Hopewell Township may have the power to enact a public gathering ordinance which applies to public areas within the township but it does not have the power to use such an ordinance to regulate a private business enterprise. In re Falls Township Trailer Ordinance 84 Pa. D.& C. 199, 204 (1952) New Hanover Township v. Young 30 Pa. D.& C. 2d 663 (1962) II. Regulation of hours and manner of operation of a business in a second class township should occur by consent or zoning. See Proposed Findings of Fact No. 2, 6, 12, 14, 27, 32 The right to use one's own property as he or she sees fit is a fundamental and constitutionally recognized right. U.S. Const. Amends. V, XIV; Pa. Const. Art. 1 s. 1. These property rights are not absolute and are subject to reasonable restrictions in the public interest. Although zoning is, in general, a proper exercise of police power which can permissibly limit an individual's property rights, Village of Euclid v. Ambler Realty Co. 272 U.S. 365, 47 S. Ct. 115, 71 L.Ed 303 (1926), it goes without saying that this restriction on the individual's right ... cannot be unreasonable. Eller v. Board of Adjustment, 414 Pa. 1, 198 A.2d 863 (1964) Kavanagh v. London Grove Township, 486 Pa. 133, 139, 404 A.3d 393, 396 (1979) While a second class township may impose limitations on the hours and manner of operation of a business when it seeks relief from a zoning ordinance through special exception, variance or conditional use, in this case the Plaintiff has not sought any of those forms of relief as to the forty (40) acre parcel used to conduct its business. Plaintiff concedes that the township may control and regulate hours of operation and other activities of businesses through its zoning powers, however, in this instance, the township may not regulate this particular business through use of this ordinance. The citizens of the township are not without remedy if the patrons of the business are misbehaving. The citizens of the township may call upon the police or, if the activities are particularly egregious, they may file an action in nuisance. See: Michener Appeal No. 80-C-954,17 Pa. D.& C.3d 99, 1980 WL 479 (Pa. Com. Pl.) In re Falls Township Trailer Ordinance 84 Pa. D.& C. 199 (1952) Sheetz Kwik Shoppers, Inc. v. Zoning Hearing Board of Huntingdon Borough 54 Pa. Cmwlth. 601, 423 A.2d 11 (1980) Dean v. City of Harrisburg, 128 Pa. Cmwlth. 431, 563 A.2d 965 (1989) New Hanover Township v. Young 30 Pa. D.& C. 2d 663 (1962 III. The aim of enforcement of Ordinance 79-2 must be to protect the community not to destroy or impede a business. See Proposed Findings of Fact No. 10, 11, 32, 39;40 It is the position of this court that the zoning board can regulate the business as long as regulation is reasonable and not designed to destroy the appellants' business.... the hearing board has the power to protect the community and can impose restrictions on any business as long as the aim of the restriction is to protect the community and not destroy the business. Michener Appeal No. 80-C-954,17 Pa. D.& C.3d 99, 102, 1980 WL 479 (Pa. Com. Pl.) Nowhere in the code ...are the supervisors authorized to prohibit the use of land for a lawful purpose or to outlaw legitimate business. In re Falls Township Trailer Ordinance 84 Pa. D.& C. 199, 204 (1952) New Hanover Township v. Young 30 Pa. D.& C. 2d 663 (1962) IV. The provisions of Ordinance 79-2 as amended have no bearing upon the goals the township is attempting to achieve through its imposition on Plaintiff. See Proposed Findings of Fact No. 16, 17, 18, 19, 24, 25, 32, 40 The Court recognizes that the validity of an ordinance cannot be tested by examining the motives of the supervisors... nor by whether the ordinance is only enforced against one person and not others, if it is otherwise a valid ordinance... Nevertheless, when an ordinance is passed as an exercise of the township's police power that authority is not infinite and unlimited. It must not be unreasonable, unduly oppressive or patently beyond the necessities of the case and the means employed must have a real and reasonable relationship to the object sought to be obtained. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual or unnecessary restrictions upon lawful occupations.Lawton v. Steele, 152 U.S. 133, Otis v. Parker, 187 U.S. 606 and Burns Baking Company v. Bry 246 U.S. 504. Denmark v. Miller 30 Pa. D. & C. 3d 653, 656 (1983) It is clear from the testimony given by the supervisors that there is no response which the township is able to make with regard to fire, police or medical emergencies which may occur on the Plaintiff s premises. Nor was there any testimony regarding traffic control other than vague comments regarding increased traffic in the township over the years. The only tasks which could be demonstrated by the township were the inspection of the premises for adequate septic facilities and provision for emergency vehicles. Whether or not a permit is issued, there will be a certain amount of traffic, dust and noise at the events conducted by Plaintiff. The Ordinance prevents patrons from staying overnight if a permit has been issued. The patrons needing fire police or emergency services can expect no assistance from the township. The health, safety and welfare of argument advanced by the township is therefore hollow and flawed. V. The patrons who stay overnight at the Doublin Gap Motocross property stay in enclosed vehicles and therefore fall under the exemption found in section 6 of Hopewell Township Ordinance No. 79-2 as amended. See Proposed Findings of Fact No.30, 31, 41 VI. The racing and camping conducted on the premises of Doublin Gap Motocross have taken place there since at least 1976 and predate the Zoning Ordinance, Ordinance 79-2 and Ordinance 79-2 as amended. See Proposed Findings of Fact No. 13,14 Plaintiff enjoys the legal protection arising from its nonconformity with the Zoning and Public Gathering Ordinances. Furthermore, under the doctrine of natural expansion, the business may grow and prosper. A preexisting nonconforming use creates a vested property right in the owner of the property. Accordingly, the right to expand a nonconforming use to provide for the natural expansion and accommodation of increased trade is a constitutional right protected by the due process clause. Jenkintown Towing service v. Zonin Hearing Bd. 67 Pa Cmwlth 183, 446 A.2d 716, 718 (1982) (quoting Silver v. Zoning Bd. Of Adjustment. 435 Pa. 99, 102, 155 A.2d 506, 507 (1969) Even under the doctrine of natural expansion, there are limits on the right to expand, but those limits are in the context of regulation through zoning, not through use of an ordinance to regulate that particular business. Respectfully submitted, Duncan & Hartman, P.C. 0.? William A. Duncan, Esquire Attorney for Defendant 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 Dated: March 27, 2012 CERTIFICATE OF SERVICE I hereby certify a true and correct copy of the foregoing Findings of Fact, Conclusions of Law and Proposed Order have been served on Hopewell Township by mailing by prepaid, first class U.S. Mail on March 27, 2012 as follows: Sally J. Winder, Esquire P.O. Box 341 Newville, PA 17241 DUNCAN & HAR AN, P.C. William A. Duncan, Esquire Attorney for Plaintiff 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 RODNEY L. YENTZER, CAROL M. IN THE COURT OF COMMON YENTZER, JEFFREY A. YENTZER PLEAS OF CUMBERLAND COUNTY, AND RODNEY L. YENTZER, II, t/d/b/a PENNSYLVANIA DOUBLIN GAP MOTOCROSS, INC., PLAINTIFFS V. HOPEWELL TOWNSHIP, DEFENDANT 07-3721 CIVIL TERM ORDER OF COURT 'tA? AND NOW, this day of July, 2012, following a nonjury trial, and after thorough consideration of the proposed findings of fact and conclusions of law offered by the parties, Hopewell Township Ordinance 79-2, as amended by Ordinance 2007-02, is declared to be valid and enforceable. By the Court, Albert H. Masland, J. i William A. Duncan, Esquire For Yentzers t/d/b/a Doublin Gap Motocross, Inc. . i l/ Sally J. Winder, Esquire For Hopewell Township :saa %W 7//rte -?, RODNEY L. YENTZER, CAROL M. IN THE COURT OF COMMON YENTZER, JEFFREY A. YENTZER PLEAS OF CUMBERLAND COUNTY, AND RODNEY L. YENTZER, II, t/d/b/a PENNSYLVANIA DOUBLIN GAP MOTOCROSS, INC., PLAINTIFFS V. HOPEWELL TOWNSHIP, : DEFENDANT 07-3721 CIVIL TERM IN RE: OPINION AND ORDER OF COURT Masland, J., July 24,2012:-- 1. Background The dispute underlying this lengthy litigation arises from a Public Gathering Ordinance amended by Defendant Hopewell Township in 2007. Originally, in 1979, Hopewell Township, a second class Township, adopted the following ordinance No. 79-2: AN ORDINANCE REGULATING PUBLIC GATHERINGS, PROVIDING FOR PUBLIC GATHERING PERMITS AND REQUIRING ADEQUATE FACILITIES THEREFORE, PROHIBITING CONSUMPTION OF ALCOHOLIC BEVERAGES AND POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES ON PUBLIC PROPERTY AND PUBLIC HIGHWAYS, PROHIBITING PUBLIC DRUNKENNESS, AND PROHIBITING FIGHTING, INDECENT CONDUCT, AND GATHERINGS FOR UNLAWFUL PURPOSES WITHIN THE TOWNSHIP, AND PRESCRIBING PENALTIES FOR VIOLATION. It is hereby ordained and enacted by the Board of Supervisors of Hopewell Township, Cumberland County, Pennsylvania, as follows: Section 1. It shall be unlawful to hold, manage or conduct any public gathering, entertainment, or party of any kind in the Township, 07-3721 CIVIL TERM except in compliance with the provisions of this ordinance. Section 2. It shall be unlawful to collect, gather, or be a member of any disorderly crowd, or any crowd gathered for any unlawful purpose. Section 3. It shall be unlawful for any person to commit any indecent act; or to appear in any public place not properly or decently garbed. Section 4. It shall be unlawful for any person to be in an intoxicated condition in or on any street, highway, or public place within the Township. Section 5. It shall be unlawful for any person to knowingly start a fight, or to fight, or to commit any assault or battery in any public place within the Township. Section 6. Any public gathering or event not held in a building shall be terminated not later than midnight, and it shall be unlawful for any person to remain on the premises between the hours of 1:00 and 6:00 a.m.; provided that employees of the holders, managers or conductors of such gathering or event whose duties necessitate it, may remain on the premises for the performance of such duties. Section 7. No such gathering, entertainment, or party shall be held or presented in any premises, unless such premises have been examined by the building inspector of the Township not more than three days in advance of the date of such gathering and found free of any fire hazard and found to be suitable for the purpose. Section 8. It shall be unlawful, within Hopewell Township, for any person to drink "liquor" or "malt or brewed beverages" upon any public street, public municipal parking lot, private parking lot open to public use or public park, or in any vehicle being operated or parked thereon. Section 9. It shall be unlawful, within Hopewell Township, for any person to have in such person's possession or in a vehicle under such person's control any open container containing "liquor" or "malt or brewed beverages" upon any public street, public municipal parking lot, private parking lot open to public use or public park. Section 10. The following words or phrases, unless the context clearly indicates otherwise, shall have the meaning ascribed to them in this section: -2- 07-3721 CIVIL TERM "Liquor' and "Malt or Brewed Beverages" and "Container" and "Official Seal" shall mean the same as those words and phrases are defined in the "Liquor Code" of the Commonwealth of Pennsylvania. "Open" when used in connection with a container shall mean any container which has been perforated in the case of a can or similar container or a container on which the cap has been loosened or the cork displaced and the official seal torn or mutilated. Section 11. It shall be unlawful to hold, manage or conduct any public gatherings, entertainment or party within Hopewell Township without providing for adequate sanitary facilities. There must be separate facilities or units for males and females. All facilities, except where public water and public sewer service is available, shall be of the chemical type. All facilities during the operation of the public gathering, entertainment or party, must be serviced once a day, at least. Section 12. Any person, corporation or firm desiring to hold, manage or conduct a public gathering of a type covered by this Ordinance must make application to the Township Secretary for a permit at least ten days in advance of the gathering or event and pay to the Township at that time any fee for issuance of said permit which the Township, by resolution, may impose. Application forms shall be provided by the Township and require such information as the Township, by resolution, deems necessary and pertinent for the effective enforcement of the provisions of this Ordinance. Upon compliance with this section and with the provisions of this Ordinance, the Township Secretary shall issue the appropriate permit. Section 13. The Township may require the posting of cash bond, or surety bond with two or more sureties satisfactory to the Township, or with a corporate surety, in an amount which will reimburse the Township for its costs of clean-up, maintenance, and repair following the conduct of any public gathering within the Township contrary to the provisions of this Ordinance, prior to the issuance of the appropriate permit. -3- 07-3721 CIVIL TERM Section 14. This Ordinance is not intended to apply to any public gathering of less than 750 individuals, and is not intended to apply to any public gathering where all the persons in attendance are related by blood or marriage. Section 15. Any person, firm or corporation violating any provision of this Ordinance shall, upon summary conviction thereof, be sentenced to pay a fine of not more than three hundred ($300.00) Dollars, and costs of prosecution, and, in default of payment of such fine and costs, to imprisonment for not more than ninety (90) days. Section 16. If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance. (Emphasis added.) In 2007, the Township amended the Ordinance after a public hearing as follows: AN ORDINANCE OF THE TOWNSHIP OF HOPEWELL, CUMBERLAND COUNTY, PENNSYLVANIA, PROVIDING FOR AMENDING HOPEWELL TOWNSHIP ORDINANCE NO. 79-2 WHEREAS, there exists an Ordinance regulating certain public gatherings in Hopewell Township, Cumberland County, Pennsylvania which is Ordinance 79-2; and WHEREAS, said Ordinance 79-2 was duly enacted August 6, 1979 and WHEREAS, the Board of Supervisors of the Township of Hopewell deems it in the best interests of the citizens of the Township of Hopewell for their general health, welfare and safety to amend Ordinance 79-2, and WHEREAS, the Board of Supervisors of the Township of Hopewell acknowledges that the impact on the community of large gatherings affects the surrounding community including the general welfare of those using roads and highways located within the Township, increases the need for emergency -4- 07-3721 CIVIL TERM services, impinges the quiet enjoyment of residents of their property; and WHEREAS, large gatherings of persons tends to create additional trash, noise and air pollution, and adversely effect the natural environment, waterways, and open spaces of the Township unless properly regulated. NOW THEREFORE, BE IT ENACTED AND ORDAINED by the Board of Supervisors of the Township of Hopewell, Cumberland County, Pennsylvania, and it is hereby enacted and ordained as follows: SECTION I. Section 14 of Ordinance 79-2 is amended to read as follows: This ordinance is intended to apply to any public gathering of 450 individuals or more, and it shall not apply to gatherings of fewer than 450 people. This Ordinance is not intended to apply to any public gathering within the Township where all persons in attendance are related by blood or marriage. SECTION II. This Ordinance shall become effective five days after enactment. SECTION III. SEVERANCE CLAUSE- Should any section, paragraph, clause or phrase of this Ordinance be declared unconstitutional or invalid by a Court of competent jurisdiction, the remainder of said Ordinance shall not be affected thereby, and shall remain in full force and effect. SECTION IV. REPEALER CLAUSE All Ordinances or parts of Ordinances or Resolutions conflicting with the provisions of this Ordinance are hereby repealed to the extent of such conflict. (Emphasis added.) Plaintiffs operate Doublin Gap Motocross, Inc. in Hopewell Township and are subject to compliance with the Ordinance. After the 2007 amendment, Plaintiffs filed a Complaint challenging the validity of the amended Ordinance. Defendant filed an Answer and Plaintiffs filed a Motion for Judgment on the Pleadings challenging the validity of the Ordinance on several bases. Specifically, Plaintiffs argued the Ordinance was void for vagueness, exceeded -5- 07-3721 CIVIL TERM Defendant's authority, was preempted by existing Pennsylvania law, constituted impermissible de facto zoning, and created an unconstitutional protected class of persons. Following briefing and argument, the Honorable Edgar Bayley denied the Motion in all respects by an opinion and order dated May 13, 2008. Plaintiffs sought an interlocutory appeal that the court certified. However, the Commonwealth Court denied the petition to appeal and the matter moved forward in the Court of Common Pleas. After the completion of discovery, the parties listed the matter for a nonjury trial before the undersigned. At trial, Plaintiffs reasserted their arguments challenging the validity of the Ordinance. Although an array of arguments have been raised by Plaintiffs, we will focus our opinion on those that are legally relevant and salient, beginning with coordinate jurisdiction. II. Coordinate Jurisdiction For Plaintiffs to prevail, the court would necessarily be required to revisit and reverse Judge Bayley's pretrial decision. "Generally, the coordinate jurisdiction rule commands that upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge." Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003). The rule fosters the policy of finality of pretrial decisions in the interest of maintaining judicial economy and efficiency. Id. However, departure from the rule is permitted in certain extraordinary -6- 07-3721 CIVIL TERM circumstances such as when "the prior holding was clearly erroneous and would create a manifest injustice if followed." Id. Here, the coordinate jurisdiction rule clearly applies as this matter was transferred to the undersigned for trial following Judge Bayley's retirement. For several reasons, the court will not alter Judge Bayley's pretrial legal conclusions. First, his prior holdings were not clearly erroneous. In another context, our courts have stated such a holding must be "a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Betz v. Pneumo Abex, LLC, 44 A.3d 27, 45 (Pa. 2012). A careful review of Judge Bayley's opinion reveals that it is comprehensive and well-reasoned. This conclusion is buttressed by the Commonwealth Court's denial of Plaintiffs' petition for permission to appeal. For these reasons, Judge Bayley's holdings supporting the validity of the Ordinance are not clearly erroneous. Second, Plaintiffs failed to prove that following the previous holdings would result in a manifest injustice. The Ordinance does not completely prevent Plaintiffs from engaging in the business of their motocross facility. It does, however, subject them to permitting requirements and possible citations for Ordinance violations. After lengthy testimony on the impact of this ordinance on Plaintiffs and their patrons, this court is comfortable concluding that requiring Plaintiffs' continued compliance with the Ordinance will not result in a manifest injustice. -7- 07-3721 CIVIL TERM The only potentially compelling reason to revisit the pretrial decision upholding the validity of the Ordinance is to reexamine the Ordinance in the light of the testimony provided during the nonjury trial. Judge Bayley's decision was on a Motion for Judgment on the Pleadings and therefore he did not have the benefit of a developed factual record. For the purposes of the motion for judgment on the pleadings, Judge Bayley limited his consideration to the pleadings and relevant documents attached thereto, accepting as true all well- pleaded facts. Wachovia v. Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007). Now, in light of the fully developed factual record, Plaintiffs would have the court reverse Judge Bayley's pretrial decision. For the reasons set forth in the following section, we decline to reverse Judge Bayley based on the application of the ordinance to Plaintiffs' business. III. Application of the Ordinance Plaintiffs argue that the Ordinance was enacted not in the "best interests of the citizens of the Township of Hopewell for their general health, welfare and safety to protect the public interest," but specifically to interfere with their private business. "The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual or unnecessary restrictions upon lawful occupations." Denmark v. Miller, 30 Pa. D. & C.3d 653, 656, (Pa. Com. PI. 1983). However, the scope of judicial inquiry into a regulation or ordinance "is not to determine if the enactment is wise or unwise or whether it -8- 07-3721 CIVIL TERM is based on sound economic theory but rather if the legislative discretion was properly exercised and if so within reason." Id. At trial, Plaintiffs argued that the Ordinance's permitting requirements have no rational relationship to the public interest the Ordinance claims to protect. In support of that position, Plaintiffs represent the following in their fourth proposed conclusion of law: It is clear from the testimony given by the supervisors that there is no response which the township is able to make with regard to fire, police or medical emergencies which may occur on the Plaintiff's premises. Nor was there any testimony regarding traffic control other than vague comments regarding increased traffic in the township over the years. The only tasks which could be demonstrated by the township were the inspection of the premises for adequate septic facilities and provision for emergency vehicles. Whether or not a permit is issued, there will be a certain amount of traffic, dust and noise at the events conducted by Plaintiff. The Ordinance prevents patrons from staying overnight if a permit has been issued. The patrons needing fire police or emergency services can expect no assistance from the township. The health, safety and welfare of [sic] argument advanced by the township is therefore hollow and flawed. Plaintiffs' Proposed Findings of Fact and Conclusions of Law at IV. The court finds this argument unavailing for several reasons. First, whether the Township supplies the personnel or services for law enforcement, emergency medical care or firefighting, it has an undeniable interest in health, safety and welfare and has the authority, indeed the obligation, to adopt -9- 07-3721 CIVIL TERM appropriate ordinances pursuant to its general powers' as well as its interest in securing public safety.2 In short, evidence produced at trial did not serve to erode Judge Bayley's finding that the ordinance was lawfully enacted for a legitimate purpose.3 Plaintiffs seem to view the public interest as the interest of their patrons exclusively. Clearly, Plaintiffs view the Ordinance's permitting requirements as a nuisance from which they gain little. That may be, but their remedy is political rather than judicial. After reviewing the nonjury trial testimony, the court, as finder of fact, determines that the Ordinance is rationally related to the legitimate public safety interest in regulating the activities of a large motocross racing facility. Accordingly, the Ordinance is a valid exercise of Defendants' legitimate police powers. In closing, we note that much of Plaintiffs' testimony and arguments appeal to the alleged equities of the case. Just as it is not for this court to determine the wisdom of the ordinance, it is not for us to tinker with it by suggesting guidelines for the counting of attendees, the timing of the inspections, or the measurement of noise. To be sure, such details could augment or clarify the Ordinance, but their absence is not fatal to its legitimacy. An arms-length discussion between reputable businesses and municipalities is always recommended to avoid conflict. Perhaps, future disputes ' 53 P. S. § 66506. z 53 P.S. § 66527. s Plaintiffs argue that despite the aforesaid powers, under 53 P.S. § 66532 the Township may only license and regulate transient merchants, cable television companies, restaurants and junk dealers. The specific authorization to license and regulate certain activities cannot reasonably be interpreted to emasculate the Township's interest in the health, safety and welfare of its citizens with respect to all other activities, be they commercial or not. -10- 07-3721 CIVIL TERM will be resolved through mediation. The parties may wish to consider not only the "ethereal dust" of motocross, but also their long-term and, potentially, permanent relationship in addressing their mutual interests and needs. Until such time and for the foregoing reason we issue the following order. ORDER OF COURT AND NOW, this day of July, 2012, following a nonjury trial, and after thorough consideration of the proposed findings of fact and conclusions of law offered by the parties, Hopewell Township Ordinance 79-2, as amended by Ordinance 2007-02, is declared to be valid and enforceable. By the Court, Albert H. Masland, J. William A. Duncan, Esquire For Yentzers t/d/b/a Doublin Gap Motocross, Inc. Sally J. Winder, Esquire For Hopewell Township :saa -11- r a: Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 717.249-7800 FAX Attorney ID 22080 r _ "rtr -t 9 f ._ AuC' -9 P 4 (G?. PENNS`f L ? I",' 1I RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO 07-3721 CIVIL TERM HOPEWELL TOWNSHIP, : CIVIL ACTION CUMBERLAND COUNTY, PENNA. Defendant NOTICE OF APPEAL Notice is hereby given that Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer and Rodney L. Yentzer, II t/d/b/a Doublin Gap Motocross, Inc., plaintiffs above named, hereby appeal to the Commonwealth Court of Pennsylvania from the order entered in this matter by Judge Albert H. Masland on the 24" day of July, 2012. This order has been entered in the docket as evidenced by the attached copy of the docket entry. A transcript of the proceedings has been prepared and lodged of record. W 1?1?? William A. Duncan, Esquire I Irvine Row, Carlisle, PA 17013 717-249-7780 Dated: August 9, 2012 oo?da?y co silo r RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER AND RODNEY L. YENTZER, II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC., PLAINTIFFS V. HOPEWELL TOWNSHIP, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 07-3721 CIVIL TERM ORDER OF COURT --z AND NOW, this day of July, 2012, following a nonjury trial, and after thorough consideration of the proposed findings of fact and conclusions of law offered by the parties, Hopewell Township Ordinance 79-2, as amended by Ordinance 2007-02, is declared to be valid and enforceable. By the Court, Albert H. Masland, J. William A. Duncan, Esquire For Yentzers t/d/b/a Doublin Gap Motocross, Inc. Sally J. Winder, Esquire For Hopewell Township t-, ? ? --; 3 ^' :saa co rn :c C - am z ? ,,r N BCD -•r PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2007-03721 YENTZER RODNEY L ET AL (vs) HOPEWELL TOWNSHIP CUMB CO PA Reference No... Filed......... 6/21/2007 Case Type ..... : COMPLAINT Judgment......: .00 Time.........: Execution Date 2:16 0/00/0000 Judge Assigned: MASLAND ALBERT H Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments - ------------ Higher Crt 1.: Higher Crt 2.: ********************************************************************* *********** General Index Attorney Info YENTZER RODNEY L PLAINTIFF DUNCAN WILLIAM A 1146 SOUTH PITT STREET CARLISLE PA 17013 YENTZER CAROL M PLAINTIFF DUNCAN WILLIAM A 1146 SOUTH PITT STREET CARLISLE PA 17013 YENTZER JEFFREY A PLAINTIFF DUNCAN WILLIAM A 1146 SOUTH PITT STREET CARLISLE PA 17013 YENTZER RODNEY II L PLAINTIFF DUNCAN WILLIAM A 1146 SOUTH PITT STREET CARLISLE PA 17013 DOUBLIN GAP MOTORCROSS INC PLAINTIFF DUNCAN WILLIAM A 1146 SOUTH PITT STREET CARLISLE PA 17013 HOPEWELL TOWNSHIP DEFENDANT 415 THREE SQUARE HOLLOW ROAD NEWBURG PA 17240 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 6/21/2007 COMPLAINT - CIVIL ACTION FILED BY WILLIAM DUNCAN ESQ FOR PLFF - 6/29/2007 ------------------------------------------------------------------ SHERIFF'S FILE RETURNED FILED. lar Case Ty e: COMPLAINT & NOTICE Ret TVpe.: Reg u PENNA Litigan .: HOPEWELL TOWNSHIP CUMBERLAND Address..: 412 THREE SQUARE HOLLOW ROAD Cty/St/Z : NEWBURG, PA 17240 Hnd To: KIMBERLY MYERS, SEC/TREAS ADULT IN CHARGE Shf/D ty.: DAVID MCKINNEY Date/ Time: 06/28/2007 1526:00 Costs....: $47.61 Pd By: DUNCAN & HARTMAN 06/29/2007 7/11/2007 ------------------------------------------------------------------- ANSWER TO COMPLAINT - BY SALLY J WINDER ATTY FOR DEFT 8/01/2007 ------------------------------------------------------------------- RESPONSE TO AFFIRMATIVE DEFENSE BY WILLIAM A DUNCAN ESQ FOR DEFT 12/19/2007 ------------------------------------------------------------------- MOTION FOR JUDGMENT ON THE PLEADINGS - BY WILLIAM A DUNCAN ATTY FOR PLFFS 12/19/2007 ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY WILLIAM A DUNCAN ATTY FOR PLFF 12/20/2007 ------------------------------------------------------------------- CERTIFICATE OF SERVICE - MOTION FOR JUDGEMENT ON THE PLEADINGS AND PRAECIPE LISTING FOR ARGUMENT COURT - BY WILLIAM A DUNCAN ATTY FOR PLFF 5/13/2008 ------------------------------------------------------------------- OPINION AND ORDER OF COURT - 5/13/08 IN RE: MOTION OF PLFFS FOR JUDEGMENT ON THE PLEADINGS - MOTION IS DENIED - BY EDGAR B BAYLEY J - COPIES MAILED 5/14/08 6/06/2008 ------------------------------------------------------------------- PLAINTIFF'S MOTION TO AMEND ORDER TO CERTIFY FOR PURPOSES OF TAKING AN INTERLOCUTORY APPEAL - BY WILLIAM A DUNCAN ATTY FOR PLFFS ------------------------------------------------------------------- PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2007-03721 YENTZER RODNEY L ET AL (vs) HOPEWELL TOWNSHIP CUMB CO PA Reference No... Filed......... 6/21/2007 Case Type ..... : COMPLAINT Time...... . 2:16 Judgment..... 00 Execution Date 0/00/0000 Judge Assigned: MASLAND ALBERT H Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: 6/10/2008 AMENDMENT TO ORDER - 6/10/08 - THE COURT HAVING DENIED PLFFS' MOTION FOR JUDGMENT ON THE PLEADINGS IN THE ABOVE ENTITLED MATTER BY ORDER DATED 5/13/08 ISSUED BY PRESIDENT JUDGE EDGAR B BAYLEY HEREBY ACKNOWLEDGES THAT THE ORDER INVOLVES A CONTROLLING QUESTION OF LAW AS TO WHICH THERE IS SUBSTANTIAL GROUND FOR A DIFFERENCE OF OPINION AND AN IMMEDIATED APPEAL MAY MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THIS MATTER AND DIRECTS THAT THE ORDER DATED 5/13/08 BE AMENDED TO INCLUDED THE AFORESAID ACKNOWLEDGMENT - BY EDGAR B BAYLEY J - COPIES MAILED 6/10/08 ------------------------------------------------------------------- 7/25/2008 ORDER - BEFORE THE COURT IS A PETITION FOR PERMISSION TO APPEAL AN ORDER OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY THAT DENIED A MOTION FOR JUDGMENT ON THE PLEADINS IN A DECLARATORY JUDGMENT ACTION ASSERTING THAT A TOWNSHIP ORDINANCE EXCEEDS THE TOWNSHIP'S AUTHORITIES AND/OR IS VOID FOR VAGUENESS AFTER A REVIEW OF THE PETITION THE COURT DOES NOT VIEW THE MATTER AS PRESENTING A CONTROLLING ISSUE OF LAW AS TO WHICH THERE IS A SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION ACCORDINGLY THIS 23RD DAY OF JULY 2008 THE PETITION FOR PERMISSION TO APPEAL IS DENIED RENEE COHN JUBELIRER JUDGE ------------------------------------------------------------------- 8/17/2010 PETITION FOR A RULE TO SHOW CAUSE WHY AN ORDER GRANTING CONSOLIDATION SHOULD NOT ISSUE - BY WILLIAM A DUNCAN ATTY FOR PLFFS ------------------------------------------------------------------- 8/19/2010 RULE TO SHOW CAUSE DATED 8-18-10 IN RE PETTIION FOR A RULE TO SHOW CAUSE WHY AN ORDER GRANTING CONSOLIDATION SHOULD NOT ISSUE - RESPONDENT SHALL ANSWER THE PETITION WITHIN 20 DAYS OF SERVICE - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 8-19-10 ------------------------------------------------------------------- 9/01/2010 ANSWER TO PETITION TO CONSOLIDATE - BY SALLY J WINDER ATTY FOR PLFF HOPEWELL TOWNSHIP BOARD OF SUPERVISORS ------------------------------------------------------------------- 2/07/2011 MOTION FOR HEARING ON PETITION TO CONSOLIDATE - BY WILLIAM A DUNCAN ATTY FOR PLFF 2/10/2011 ------------------------------------------------------------------- ORDER - 2/10/11 IN RE: MOTION FOR HEARING ON PETITION TO CONSOLIDATE - HEARING IS SCHEDULED FOR 5/9/11 AT 1:30 PM IN CRS CUMBERLAND COUNTY COURTHOUSE - BY ALBERT H MASLAND J - COPIES MAILED 2/10/11 5/10/2011 ------------------------------------------------------------------- ORDER OF COURT - 5/9/11 - FOLLOWING ARGUMENT BY COUNSEL ON THE MOTION FOR CONSOLIDATION OF THE ABOVE MATTERS THE COURT DIRECTS THAT COUNSEL SUBMIT A PROPOSED SCHEDULE FOR THE MANNER IN WHICH THESE MATTERS SHOULD PROCEED - IF COUNSEL ARE UNABLE TO AGREE THEY SHALL SUBMIT PROPOSED SCHEDULES ON BEHALF OF THEIR RESPECTIVE CLIENTS - IN EITHER EVENT THE SCHEDULE SHALL BE SUBMITTED TO THE COURT BY CLOSE OF BUSINESS 5/27/11 - BY THE COURT ALBERT H MASLAND J - 6/08/2011 ------------------------------------------------------------------- ORDER OF COURT - 6/7/11 - UPON CONSIDERATION OF THE PROPOSED SCHEDULES SUBMITTED BY SALLY J WINDER ESQ AND WILLIAM A DUNCAN ESQ ON BEHALF OF THEIR CLIENTS - THE COURT DIRECTS THAT CASE NO 07-3721 PROCEED AS FOLLOWS 1- DISCOVERY SHALL BE COMPLETED BY 8/1/11 2- A PRETRIAL CONFERENCE SHALL BE HELD ON 8/22/11 AT 11:00 AM IN CHAMBERS AND 3- TRIAL SHALL COMMENCE ON 9/27/11 AT 8:45 AM IN CR5 CUMBERLAND COUNTY COURTHOUSE - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 6/8/11 8/24/2011 ------------------------------------------------------------------- ORDER OF COURT - 8/22/11 - IN RE: PRETRIAL CONFERENCE - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 8/25/11 9/19/2011 ------------------------------------------------------------------- DEFENDANT HOPEWELL TWP MOTION FOR SUMMARY JUDGMENT - BY SALLY J WINDER SOLICITOR FOR DEFT HOPEWELL TWP 9/28/2011 ------------------------------------------------------------------- ORDER OF COURT DATED 9-27-11 IN RE NON-JURY TRIAL SCHEDULED FOR FEBRUARY 8 2012 AT 8 45 AM AND FEBRUARY 9 2012 AT 1 30 PM IN CR 5 2 PYS511 Cumberland County Prothonotary's Office Page 3 Civil Case Print 2007-03721 YENTZER RODNEY L ET AL (vs) HOPEWELL TOWNSHIP CUMB CO PA Reference No..: Filed........: 6/21/2007 Case Type ..... : COMPLAINT Time.........: 2:16 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: MASLAND ALBERT H Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------- Case Comments ------------- Higher Crt 1.: Higher Crt 2.: - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 9-28-11 ------------------------------------------------------------------- 9/28/2011 ORDER OF COURT DATED 9-27-11 IN RE MOTION FOR SUMMARY JUDGMENT - CASE MAY BE SUBMITTED ON BRIEFS ALONE - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 9-28-11 ------------------------------------------------------------------- 9/30/2011 SHERIFF'S RETURN - 09/02/11 - SUPOENAS SERVED SHERIFF'S COSTS: $184.44 ------------------------------------------------------------------- 10/03/2011 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT'S MOTION FOR SUMMARY JUDGMENT - BY SALLY J WINDER ATTY FOR DEFT ------------------------------------------------------------------- 12/12/2011 DEFENDANT HOPEWELL TOWNSHIP OBJECTIONS TO REQUEST FOR PRODUCTION OF DOCUMENTS - BY SALLY J WINDER ATTY FOR DEF ------------------------------------------------------------------- 12/20/2011 ORDER OF COURT - 12/20/11 - IN RE: PLFF'S RQUEST FOR PRODUCTION OF DOCUMENTS - DEFT'S OBJECTIONS THERETO AND PLFF'S RESPONSE TO DEFT'S OBJECTIONS ORDER AND DIRECT AS FOLLOWS: 1 -DEFT WILL COMPLY WITH THE REQUEST FOR PRODUCTION OF DOCUMENTS-SET NO 2- WITH THE EXCEPTION OF THE REQUEST IN THE SECOND PARAGRAPH WHICH REQUEST IS DENIED 2 -DEFT IS GRANTED 30 DAYS FROM THE DATE OF THIS ORDER TO COMPLY WITH THIS REQUEST - BY THE COURT ALBERT H MASLAND J COPIES MAILED 12/21/11 ------------------------------------------------------------------- 12/20/2011 ORDER OF COURT - 12/19/11 - IN RE: DEFT'S MOTION FOR SUMMARY JUDGMENT - DENIED - BY THE COURT ALBERT H MASLAND J COPIES MAILED 12/20/11 ------------------------------------------------------------------- 2/07/2012 SHERIFF'S RETURN - DATED 01/18/12 - SUBPOENA AND CHECK #23673 SERVED ON DEFT JOHN MCCREA III AT 221 DOUBLING GAP ROAD NEWVILLE PA 17241 SUBPOENA AND CHECK # 23674 SERVED ON DEFT EUGENE MELLINGER AT 9 HILLTOP ROAD NEWBURG PA 17240 SUBPOENA AND CHECK # 23677 SERVED ON DEFT CURTIS W MYERS AT 405 NEWVILLE ROAD NEWBURG PA 17240 DATED 01/19/12 - SUBPOENA AND CHECK #23675 SERVED ON DEFT DANNY G FORRESTER AT 100 FOX HILL ROAD SHIPPENSBURG PA 17257 SUBPOENA AND CHECK #23676 SERVED ON DEFT GREGORY ALLEMAN AT 305 W CREEK ROAD NEWBURG PA 17240 SHERIFF COST - $184.88 ------------------------------------------------------------------- 2/14/2012 ORDER OF COURT DATED 2-8-12 IN RE FOLLOWING A NON JURY TRIAL - TRANSCRIPT TO BE PREPARED WITHIN 20 DAYS - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 2-14-12 ------------------------------------------------------------------- 3/07/2012 TRANSCRIPT OF PROCEEDINGS NONJURY TRIAL - 2/8/12 BEFORE ALBERT H MASLAND J ------------------------------------------------------------------- 3/27/2012 PROPOSED FINDINGS OF FACT - BY WILLIAM A DUNCAN ATTY ------------------------------------------------------------------- 7/24/2012 ORDER OF COURT DATED 7-24-12 IN RE HOPEWELL TOWNSHIP ORDINANCE 79-2 AS AMENDED IS DECLARED TO BE VALID - BY THE COURT ALBERT H MASLAND J- COPIES MAILED 7-25-12 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq*Bal***Pymts/Ad End Bal ******************************** **** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 APPEAL HIGH CT 57.00 57.00 .00 ------------------------ ------------ PYS511 Cumberland County Prothonotary's Office Page 4 Civil Case Print 2007-03721 YENTZER RODNEY L ET AL (vs) HOPEWELL TOWNSHIP CLIMB CO PA Reference No..: Filed........: 6/21/2007 Case Type.....: COMPLAINT Time.........: 2:16 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: MASLAND ALBERT H Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------- Case Comments ------------- Higher Crt 1.: Higher Crt 2.: 135.50 135.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Teeftony whwed, ! hero who W my hand and tlw "M of wo at ca ub. 12- snw _.,?.n? of r RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER AND RODNEY L. YENTZER, II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC., PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HOPEWELL TOWNSHIP, DEFENDANT 07-3721 CIVIL TERM ORDER OF COURT AND NOW, this 13th day of August, 2012, Plaintiff shall file and serve a copy in the chambers of this judge a concise statement of errors complained of on appeal within twenty-one (21) days of this date. By the Court, ~~ Albert H. Masland, J. ~ William A. Duncan, Esquire For Yentzers t/d/b/a Doublin Gap Motocross, Inc. ~ly J. Winder, Esquire For Hopewell Township:: :saa r~~ " a ~'. ~: ~t_ / ./ -~~' w ~_ -~ ~~ ; RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVAP NO 07-3721 CIVIL TERM vs. :COMMONWEALTH COURT OF PENNA :DOCKET NO. 1522 CD 2012 HOPEWELL TOWNSHIP, :CIVIL ACTION ~ a- CUMBERLAND COUNTY, PENNA. Defendants N r ss CERTIFICATE OF SERVICE Z ~` I hereby certify that I served a true and correct copy of Plaintiffs' Notice of A~ea~y mailing, prepaid first class U.S. Mail on August 13, 2012 as follows: Sally J. Winder, Esquire, attorney for Defendant P.O. Box 341 Newville, PA 17241 717-776-6656 Honorable Albert H. Masland, Trial Court Judge Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 717- 240-6294 Pamela R. Sheaffer, Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 717- 240-6206 DUNCAN & HARTMAN, P.C. William A. Duncan, Esquire Attorney for Plaintiff 1 Irvine Row, Carlisle, Pennsylvania 1701: 717.249-7780 spa , August 23, 2013 ... Kristen W. Brown Prothonotary Michael Krimmel, Esy. Chief Clerk of Commonwealth Court August 28, 2012 NOTICE OF DOCKETING APPEAL RE: Yentzer et al v. Hopewell Twp 1522 CD 2012 Filed Date: August 9, 2012 Trial Court Docket No: 07-3721 Civil Term Pennsyhania Judicial Ce ter 601 Commonwealth Avenue, Suite 2100 P.O. Box 69 85 Harrisburg, 1171 85 ,~ti ,,,~ .pac us `t') A Notice of Appeal from an order of your court has been docketed in the Commonwealtfh ' Court of Pennsylvania. The Commonwealth Court docket number must be on ajll correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of AK has the effect of directing the Court to transmit the certified record in the matter to Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to tF Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do n transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmissi of the record. The address to which the Court is to transmit the record is set forth on the next page of notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or their counsel indicated on the proof o~ service accompanying the Notice of Appeal. The appearance of all counsel has been entered onl the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of', the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa.R.A.P. 9071 (b)~ I Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on the next page of this Notice. If you have special needs, please contact this court in writing as soon as possible. r.. . Attorney Name Participant Name Participant Type William A. Duncan, Esq. Rodney L. Yentzer Appellant William A. Duncan, Esq. Carol M. Yentzer Appellant William A. Duncan, Esq. Jeffrey A. Yentzer Appellant William A. Duncan, Esq. Doublin Gap Motocross, Inc. Appellant William A. Duncan, Esq. Rodney L. Yentzer II Appellant Sally J. Winder, Esq. Hopewell Township Appellee Address all written communications to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 ', Harrisburg, PA 17106-9185 (717) 255-1650 j Filings may be made in person at the following address (except on Saturdays, Sundays holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m. Office of the Chief Clerk j Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 '~ (717) 255-1650 Pleadings and similar papers (but not paperbooks or certified records) may also be filed person only at: Office of the Chief Clerk Commonwealth Court of Pennsylvania Filing Office Suite 990 The Widener Building 1339 Chestnut Street Philadelphia, PA 19107 (215) 496-4980 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under Pa. R.A.P. 3702, writs or other process issuing out of the Commonwealth Court shall only from the Harrisburg Office. Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249-7780 717.249-7800 FAX Attorney ID 22080 RODNEY L. YENTZER, CAROL M. YENTZER, JEFFREY A. YENTZER and RODNEY L. YENTZER II, t/d/b/a DOUBLIN GAP MOTOCROSS, INC. Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVA~ NO 07-3721 CIVIL TERM HOPEWELL TOWNSHIP, :CIVIL ACTION CUMBERLAND COUNTY, PENNA. Defendant c ~ ' s c un~" -.~~'. i c w c e: , ~~ 3 x STATEMENT OF ERRORS ~ ~ AND NOW, this ~ day of August, 2012, comes Plaintiffs through their attorney, William A. Duncan, Duncan & Hartman, P.C. and provide a concise Statement of Errors as ordered by the Court in its Order dated August 13, 2012, which Statement of Errors includes errors of Judge Bayley's Opinion and Order as to Plaintiffs' Motion for Judgment on the Pleadings which Order was entered May 13, 2008 and which Statement of errors also include those in an Order of Court dated July 24, 2012 following a non jury trial conducted by Judge Masland on February 8, 2012, together with errors made by Judge Masland during the conduct said trial: I. Judge Bailey's Errors in Opinion and Order of Court dated May 13.2008 1. It was error for Judge Bayley to determine that a second class township has authority to a public gathering ordinance. The legislature has not specifically granted such authority to second class townships the courts do not generally restrict freedom of assembly in Pennsylvania on private land through building and occupancy codes. 2. It was error for Judge Bayley to determine that regulation of hours of operation and activiti with an arbitrary number of persons to be regulated by the ordinance did not constitute de zoning. The application of this ordinance to Plaintiffs' business has the effect of regulating the hours of operations, the number of people who can frequent the business and the activities take place on the location of the business, all areas which are within the province of zoning therefore having the effect of de facto zoning. 3. It was error for Judge Bayley to apply the public gathering ordinance enacted by Defendant a business which is not specifically subject to regulation as specified in the Pennsylvania Class Township Code. The application of this ordinance to Plaintiffs' business has the effect of regulating the hours of operations, the number of people who can frequent the business and the activities take place on the location of the business. Under 53 P.S. section 66532, the township may license and regulate certain specific businesses. Plaintiffs' business does not fall within those enumerated under the statute. The public gathering ordinance should therefore not be to Plaintiffs' business. 4. It was error for Judge Bayley to allow a second class township to impose an arbitrary threshold on the number of persons gathered who would be subjected to the regulations by the public gathering ordinance. The ordinance does not consider any circumstances surrounding the issuance of a gathering permit other than the number of persons aggregating in a particular location, irregardless of the size of the location or whether or not that location is on private land or land. 5. It was error for Judge Bayley to determine that the public gathering ordinance was valid as a private business conducted on private land. The ordinance states that it shall be unlawful to hold any public gathering, or party of any kind in the Township except in compliance with the provisions of the Plaintiffs' business, while open to the public with the payment of admission, does not fall into the categories enumerated and should be exempt from its application. II. Judge Masland's trial errors 6. Judge Masland erred in not permitting testimony by Plaintiffs' witnesses as to business wi the township which exceed the threshold of 450 persons and are not subject to public ordinance enforcement. Judge Masland's failure to consider such testimony resulted in the Court not being to determine the township's standards for inapplicability of the ordinance. 7. Judge Masland erred in not permitting Plaintiffs to develop testimony through the zoning officer as to occupancy limits, building codes and other matters which would tend to show the law recognizes a relationship between size of a site, dimensions of buildings and the legal occupancy permitted as to same. This testimony would have allowed the Court to determine that the proper measure of number of people to trigger the applicability of the Public Gathering Ordinance must bear a reasonable relationship to the size of the site and its buildings. III. Judge Masland's errors in Opinion and Order of Court dated July 24, 2012 8. Judge Masland erred in adopting Judge Bayley's opinion, as the opinion was erroneous as forth in paragraphs one through five above. Such adoption of Judge Bayley's opinion after having heard testimony as to the of the case ignored the legislature's restrictions as to the powers of a second class township the case law of Pennsylvania as to the regulation of business and as to defacto zoning. 9. Judge Masland erred in assigning any weight to the Commonwealth Court's denial of Plaintiffs' Petition for Interlocutory Appeal. The Commonwealth Court did not express any opinion as to the validity, applicability effect of the Public Gathering Ordinance. 10. Judge Masland erred in finding that the impact of the ordinance on Plaintiffs and their patrons was not unduly harsh and not regulatory in nature. The testimony given at trial evidenced that the public gathering ordinance regulates use of Plaintiffs' land as would zoning and that the applicability of the ordinance would eventually destroy the business. 11. Judge Masland erred when he did not find the ordinance to be inapplicable to Plaintiffs' business when uncontradicted testimony established that the business pre-dated the public gathering ordinance. This error allows the township to regulate an existing business and its conduct and to said regulations at any time without regard to the health, growth, expansion and reasonable conduct of the business. 12. Judge Masland erred in not declaring the ordinance to be inapplicable to Plaintiffs. The testimony at trial clearly established that the intention of the enactment of the ordinance was to regulate unorganized groups of unaffiliated persons whose organizers could be easily located and whose events were not otherwise regulated in any fashion. 13. Judge Masland erred in reaching the conclusion that a township which provides no fire, police or safety services can regulate through a public gathering ordinance the number of a business can serve on private land. There must be a reasonable nexis between regulation of a business or the promulgations of an ordinance affecting that business and the public interest served. 14. Judge Masland erred in finding that the mandating of permits for such a business allowed township to provide for the health, safety and welfare of its residents. There must be a reasonable nexis between regulation of a business or the promulgation of an ordinance affecting that business and the public interest served. 15. Judge Masland erred in upholding the requirement that Plaintiffs or others similarly must obtain permits in advance of their events when clearly, as testified at trial, Plaintiffs predict the number of attendees at an event. The requirement for obtaining permits and paying for same requires speculation, in case, as to weather conditions, the economy and other factors which are unknown to Plaintiffs. The obtaining of permits by Plaintiffs cripples Plaintiffs' business as it requires Plaintiffs to either turn away customers who wish to attend or to dismiss patrons from the premises in the evening hours. This constitutes regulation of a private business. The township may not, the guise of the public interest, arbitrarily interfere with private business or impose unusual or unnecessary restrictions upon lawful occupations. 16. Judge Masland erred by not striking down the ordinance for its discrimination against non related parties. According to testimony developed in Court, related parties can ignore the ordinance have unlimited attendees whereas Plaintiffs who host some related parties must obtain permits when Plaintiffs anticipate more than 450 attendees. The fact that the township would tolerate gatherings without permits of more than 450 people has no legal basis and therefore the cannot argue that Plaintiff should be regulated. 17. Judge Masland erred in failing to address the issue of applicability raised by the Plaintiffs to the public gathering ordinance and its business. The Order of Court dated July 24, 2012 merely declares the Ordinance to be valid and enforceable. Plaintiffs' testimony and exhibits clearly show that the ordinance is not to its business nothwithstanding whether the ordinance is valid and enforceable. 18. Judge Masland erred in his reasoning as set forth in footnote 3 on page 10 of his opinion. The specific authority granted to a township by the legislature cannot be unilaterally enlarged by a township wherein the township is regulating a business not specifically in 53 P.S. section 66532. Respectfully submitted, ----, William A. Duncan, Esquire DUNCAN & HARTMAN, P.C. Attorney for Plaintiff 1 Irvine Row, Carlisle, Pennsylvania 1701 717.249-7780 August 30, 2013 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Rodney L. Yentzer, Carol M. : 0'7- 37A I L,' Yentzer, Jeffrey A. Yentzer and : No. 1522 C.D. 2012 Rodney L. Yentzer II, t/d/b/a/Doublin : Argued: March 11, 2013 M Gap Motocross, Inc., ; Appellants Tt V. Hopewell Township, Cumberland County, Pennsylvania BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: April 9, 2013 Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer, and Rodney L. Yentzer 11 (together, the Yentzers) doing business as Doublin Gap Motocross, Inc., appeal from the July 24, 2012, order of the Court of Common Pleas of Cumberland County (trial court) declaring Hopewell Township's (Township) Ordinance 79-2 (Ordinance), as amended, valid and enforceable. We affirm. The Yentzers have conducted motocross events' for thirty years on two parcels of land in the Township. Fans of the events often camp on-site for the Motocross is a form of motorcycle racing held on enclosed, off-road circuits. weekend. Residents of the Township have complai tba the events increase traffic and crew use and air p a The Ordinance, onginaye in 1979) s of 750 or more individuals. The OrAkmce lets the ours of w requires permits and adequate sanitation facilities, Lind restricts alcohol consumption, public drunkenness, fighting, and indecent conduct.' The Township amended the 2 The Ordinance states in relevant part: AN ORDINANCE REGULATING PUBLIC GATHERINGS, PROVIDING GATH. " REQUMEM& . .. P m,� Section 4. It shall be unla"A for any pemn to be in an intoxicated condition in or on any strut, highway, or within the Township. Sermon 5. It sal be unlawful for any person,to,itnowivoy start a fight, or to fight, or to commit any assault or berry in any public place within the Township. Section 6. Any public gathering or event not held in a building ill be t , a it SW1l,be unlawful for any person to remain on the premises es between they hours of I and 6:00 v I 9W ema piq ops of the holders, managers or conductors of car eve necessitate it, may n�:rxu�irt`on R fbr the `��.i� , `� ..of` such duties. Section 7. No such gathermg, entertainment, or party shall be held or presented M any tM s" $� p ses..la hay been examined by the bu�i. ' ol'''ds''p6w , three 4qs in adv of.t of _ of any fire hazard and found tea bey sukable,,for prose. (Ordinance at 1.) 2 Ordinance in 2007, making it applicable to any public gathering of 450 or more individuals. The Ordinance includes an exception for gatherings consisting entirely of related individuals? The Ordinance also includes a severance clause, preserving the remainder of the Ordinance if a portion is declared invalid.4 On June 21, 2007, the Yentzers filed an action for declaratory judgment against the Township, asking that the Ordinance be declared null and void. On May 13, 2008, the trial court denied the Yentzers' motion for judgment on the pleadings. After a non jury trial, the trial court issued an order on July 24, 2012, declaring the Ordinance to be valid and enforceable. The Yentzers appealed to this court.' The Yentzers first argue that the trial court erred in finding that the Township has authority to enact a public gathering ordinance because the Ordinance regulates a business that is not expressly subject to regulation in The Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101- 68701. We disagree. 3 Section 14 of the Ordinance states: "This Ordinance is not intended to apply to any public gathering within the Township where all persons in attendance are related by blood or marriage." (Ordinance at 2.) 4 Section 16 of the Ordinance states: "If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance." (Ordinance at 2-3.) 5 "Our standard of review in a declaratory judgment action is limited to determining whether the trial court's findings are supported by substantial evidence, whether an error of law was committed or whether the trial court abused its discretion." City Council of the City of Reading v. Eppihimer, 835 A.2d 883, 886 n.5 (Pa. Cmwlth. 2003). 3 To 'ps of.the -CQ , " s only . been gr by - ss '° by necessary and fair implicagen or am ice` t o powers expmody, + : essential to the declared objects and poses of the townships." Cammo wvar th- V. Ashenfelder, 413 Pa. 517, 521, 198 A.2d 514, 515 (1964). The Townslupp.ar gues that it enacted the(Ordinance to preserve the -tb and weUare of its,citizens. Section 1506 of the Codo provides. [t]he board of supervisors ism may make , and adopt any: ordinances, bylaws, rules and regulations not inconsistent with or restrained by the Constitution and laws of this Commonweam necessary for t, and control, of the 'p and its f cea and t4, maintenance of peace, good goverment, hea th and wee prare of the to ho and its citizens,, and naa ,Wwerrs. 53 P.S. §66506 (emphasis added). Section 1527 of the.Code states: [t]he board of supervisors may adopt ordinances;to s ewe the safety of persons or p rWerty, within the to w, hid, to def ne &sWzWW the w jIW the limes of the township. 53 P.S. §66527( ia, ,,d) Thus, we must exa w r 'n e. s to, t t and welfare of the Township. T cat � d � 5"apt gatherings, prevents people from stsr ;tee. V . n.. 4 a.m. and 6:00 a.m., subjects the site to inspection by the Township for safety issues, and requires adequate sanitary facilities. When large groups of people gather and drink alcohol, they can present a danger to themselves and to the persons and property of the community. Preventing such a gathering from occurring late at night mitigates this danger while reducing noise pollution. Requiring adequate sanitation prevents the spread of disease and noxious odors, and subjecting a gathering to inspection and permitting processes is necessary for enforcement. Thus, because the Ordinance addresses valid health and welfare concerns, the Township has the authority to enact the Ordinance. The Yentzers next argue that the trial court should have found the Ordinance to be an invalid zoning ordinance. We disagree. A zoning ordinance is subject to the provisions of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202. A zoning ordinance that fails to follow the procedures included in the MPC is invalid on its face. See Board of Supervisors of Franklin Township v. Meals, 426 A.2d 1200, 1202 (Pa. Cmwlth. 1981) ("[W]e hereby hold that an ordinance which regulates a zoning principle, but does not contain the procedural safeguards mandated by the MPC is invalid on its face."). The Ordinance does not prohibit motocross. The Ordinance does not involve zones, lot sizes, set-backs, accessory uses, special exceptions, variances, or other concepts typical of zoning ordinances. Because the Ordinance aims to regulate public gatherings in order to protect the public health and welfare, and the terms of 5 the Ordinaw do not exoaedthel COnWUJJ ce-is notazo4iqgordisuce. requimmats-Aa wpipjy. The Yeatzars ,p Jx W' a Amad" Townslup,ma,impose aa,v6i%wy thmWwWwOwnumber together. We disagree. In Supportof Y u aifg A ; a AROWAM*O Of Pennsylvania, Inc. v. Township of Lower Merion Board,of � � 642, 64243 (Pa. Cmwlth. 1978), where a,tow e aan:ordkmawe.bawja e sale of ice�,c r on its,s A v � . , for fifty years challenged the regulatia►n. at., 3. . police power must not be unreasonablo, unduly oppro 've, or pa toad y �yQd tie necessities of the:case. Id ;at, _ Tht to be u , ban any activity. Saco, 394 A.2d at 644. Instead, the> ► y.r e ,qu , s, k,.ry'. -Me OW does not specifically regulate motoorgss. h± c+reover, a c . k ot be : ar bitra interf, ce=,With: wpb . Ao Here, atrpalluUo arising-fim,.large,, 6 The Ordinance's requirements are rationally related to protecting these health-related, governmental interests. Thus, we find the Ordinance to be a reasonable exercise of the Township's power. Finally, the Yentzers argue that the trial court erred by finding that the Ordinance unconstitutionally distinguishes between related and unrelated persons. We disagree. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, §1. "'The equal protection provisions of the Pennsylvania Constitution are analyzed by this Court under the same standards used by the United States Supreme Court when reviewing equal protection claims under the Fourteenth Amendment to the United States Constitution."' McCusker v. Workmen's Compensation Appeal Board (Rushton Mining Company), 536 Pa. 380, 384, 639 A.2d 776, 777 (1994) (citation omitted). "The appropriate standard of review under an equal protection analysis depends upon the type of interest affected by the statutory classification." Id at 385, 639 A.2d at 778. A classification implicating neither suspect classes nor fundamental rights will be sustained if it passes a "rational basis" test. Id In order to sustain constitutional attack under the rational basis test, a classification "'need only be directed at the accomplishment of a legitimate governmental interest, and to do so in 7 a manner which is not arbitrary or unreasonable."' Id. at 391, 639 A.2d at 781 (citation omitted). Arguably, family gatherings are less likely to be rowdy or dangerous to community persons or property than ids of -rn ;ot gtri sponsored by businesses.' Thus, we find that ex ption is rati€�nal�y dated to legitimate government interest in protecting the health and welfare of the community.' Accordingly, we affirm. ' L ,S. 6 We do note that it ears, an,liely that the tally ec ,iiaa �. � � given the unlikelihood that a gathering of 450 individuals d auld occur ithoctt inclutlio single individual unrelated by bldor saw. riage Moreover, even if we found the ex°"tin uncongi tion 1, .th. r0mat of the- Ordinance would still be valid because the Ordinance includes a severance clause, and"the ' entzers would remain unentitled to the declaratory judgment they seek. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer and No. 1522 C.D. 2012 Rodney L. Yentzer II, t/d/b/a/ Doublin Gap Motocross, Inc., Appellants V. F c Hopewell Township, Cumberland County, �. Pennsylvania U) -- -<> o r-.2! .c: ORDER -} AND NOW, this 9th day of April 2013, we hereby affirm the July 24, 2012, order of the Court of Common Pleas of Cumberland County. 4 C ROCHELLE S. FRIEDMAN, Senior Judge Cettil"ied from the Record APR - 9 2013 OW Order Exit supreme Count of fleunoptbauia Irene M.Bizzoso,Esq. 601 Commonwealth Avenue,Suite4500 Middle District Prothonotary P.O.Box 62575 Elizabeth E.Zisk Harrisburg,PA 17106 Chief Clerk (717)787-6181 May 10, 2013 www.pacourts.us RE: Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer and Rodney L. Yentzer II, t/d/b/e Doublin Gap Motocross, Inc., Petitioners V. Hopewell Township, Respondent No. 315 MAL 2013 Trial Court Docket No: 07-3721 Civil Term Commonwealth Docket Number: 1522 CD 2012 Appeal Docket No: Date Petition for Allowance of Appeal Filed: May 6, 2013 -+ MM Disposition: ern . r=. Disposition Date: Reargument/Reconsideration Disposition: '��`` { ' CD Reargument/Reconsideration Disposition Date: /af cc: Buell, David D., Prothonotary ,*upreute (Court of Peuu5ptbania Amy Dreibelbis,Esq. 601 Commonwealth Avenue,Suite 4500 Deputy Prothonotary Middle�IStl1CL P,0.Box 62575 Elizabeth E.zisk Harrisburg,PA 17106 ChieFClerk (717)787-6181 November 27, 2013 www.pacourts.us Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer and Rodney L. Yentzer II, t/d/b/s Doublin Gap Motocross, Inc., Petitioners V. Hopewell Township, Respondent No. 315 MAL 2013 Trial Court Docket No: 07-3721 Civil Term M Commonwealth Docket Number: 1522 CD 2012 Appeal Docket No: - - Date Petition for Allowance of Appeal Filed: May 6, 2013 Disposition: Order Denying Petition for Allowance of Appeal Disposition Date: November 27, 2013 Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /af IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT RODNEY L. YENTZER, CAROL M. : No. 315 MAL 2013 YENTZER, JEFFREY A. YENTZER AND RODNEY L. YENTZER II, T/D/B/A/ DOUBLIN GAP MOTOCROSS, INC., : Petition for Allowance of Appeal from the Order of the Commonwealth Court Petitioners V. HOPEWELL TOWNSHIP, Respondent ORDER PER CURIAM AND NOW, this 27th day of November, 2013, the Petition for Allowance of Appeal is DENIED. As f 1/ 213beth E. Zisk O127/ 0 Attest Chief Cler c� Supreme Court of Pennsylvania ,Y4A_ 'Ariveti_r __,Lr , Qotutuonb,eaItjj Court of flennopfbania Kristen W.Brown Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue,Suite 2100 Michael Krimmel,Esq. P.O.Box 69185 Chief Clerk of Commonwealth Court Harrisburg,PA 17106-9185 January 6, 2014 www.pacourts.us CERTIFICATE OF REMITTAL/REMAND OF RECORD TO: David D. Buell Prothonotary RE: Yentzer et al v. Hopewell Twp 1 522 CD 2012 Trial Court: C-umberland_County Court of Common Pleas Trial Court Docket No: 07-3721 Civil Term Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Trial Court Record October 3, 2012 1 Remand/Remittal Date: ORIGINAL RECIPIENT ONLY- Please acknowledge receipt by signing,dating,and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully Commo ` e.h Court Fill g Office rri r F. sM. _7{-r;, WE -- r- -: -- . CD Yeritzer et al v. Hopewell Twp January 6, 2014 1522 CD 2012 Letter to: Buell, David D. Acknowledgement of Certificate of Remittal/Remand of Record(to be returned): Signature Date Printed Name IN THE COMMONWEALTH COURT OF PENNSYLVANIA Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer and : No. 1522 C.D. 2012 Rodney L. Yentzer II, t/d!b/a/Doublin : Argued: March 11, 2013 Gap Motocross, Inc., Appellants : _ YT w rn z V. ai Hopewell Township, Cumberland County, : _�_,r `:Pennsylvania ,= _ BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: April 9, 2013 Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer, and Rodney L. Yentzer II (together, the Yentzers) doing business as Doublin Gap Motocross, Inc., appeal from the July 24, 2012, order of the Court of Common Pleas of Cumberland County (trial court) declaring Hopewell Township's (Township) Ordinance 79-2 (Ordinance), as amended, valid and enforceable. We affirm. The Yentzers have conducted motocross events' for thirty years on two parcels of land in the Township. Fans of the events often camp on-site for the ' Motocross is a form of motorcycle racing held on enclosed,off-road circuits. weekend. Residents of the Township have complained that the events increase traffic and create noise and air pollution. The Ordinance, originally enacted in 1979, applied to public gatherings of 750 or more individuals. The Ordinance limits the hours of outdoor gatherings, requires permits and adequate sanitation facilities, and restricts alcohol consumption, public drunkenness, fighting, and indecent conduct.2 The Township amended the 2 The Ordinance states in relevant part: AN ORDINANCE REGULATING PUBLIC GATHERINGS, PROVIDING FOR PUBLIC GATHERING PERMITS AND REQUIRING ADEQUATE FACILITIES THEREFORE * * * Section 4. It shall be unlawful for any person to be in an intoxicated condition in or on any street, highway, or public place within the Township. Section 5. It shall be unlawful for any person to knowingly start a fight, or to fight, or to commit any assault or battery in any public place within the Township. Section 6. Any public gathering or event not held in a building shall be terminated not later than midnight, and it shall be unlawful for any person to remain on the premises between the hours of 1:00 and 6:00 am; provided that employees of the holders, managers or conductors of such gathering or event whose duties necessitate it, may remain on the premises for the performance of such duties. Section 7. No such gathering, entertainment, or party shall be held or presented in any premises, unless such premises have been examined by the building inspector of the Township not more than three days in advance of the date of such gathering and found free of any fire hazard and found to be suitable for the purpose. (Ordinance at 1.) 2 Ordinance in 2007, making it applicable to any public gathering of 450 or more individuals. The Ordinance includes an exception for gatherings consisting entirely of related individuals.' The Ordinance also includes a severance clause, preserving the remainder of the Ordinance if a portion is declared invalid.' On June 21, 2007, the Yentzers filed an action for declaratory judgment against the Township, asking that the Ordinance be declared null and void. On May 13, 2008, the trial court denied the Yentzers' motion for judgment on the pleadings. After a non jury trial, the trial court issued an order on July 24, 2012, declaring the Ordinance to be valid and enforceable. The Yentzers appealed to this court.' The Yentzers first argue that the trial court erred in finding that the Township has authority to enact a public gathering ordinance because the Ordinance regulates a business that is not expressly subject to regulation in The Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101- 68701. We disagree. 3 Section 14 of the Ordinance states: "This Ordinance is not intended to apply to any public gathering within the Township where all persons in attendance are related by blood or marriage." (Ordinance at 2.) 4 Section 16 of the Ordinance states: "If any sentence, clause, paragraph, section or portion of this Ordinance is declared by any Court of competent jurisdiction to be illegal, invalid or unconstitutional, such declaration shall not affect the remaining provisions of this Ordinance." (Ordinance at 2-3.) ' "Our standard of review in a declaratory judgment action is limited to determining whether the trial court's findings are supported by substantial evidence, whether an error of law was committed or whether the trial court abused its discretion." City Council of the City of Reading v. Eppihimer, 835 A.2d 883, 886 n.5 (Pa. Cmwlth. 2003). 3 Townships of the Commonwealth "possess only such powers as have been granted to them by the legislature, either in express terms or which arise by necessary and fair implication or are incident to powers expressly granted or are essential to the declared objects and purposes of the townships." Commonwealth v. Ashenfelder, 413 Pa. 517, 521, 198 A.2d 514, 515 (1964). The Township argues that it enacted the Ordinance to preserve the health and welfare of its citizens. Section 1506 of the Code provides: [t]he board of supervisors may make and adopt any ordinances, bylaws, rules and regulations not inconsistent with or restrained by the Constitution and laws of this Commonwealth necessary for the proper management, care and control of the township and its finances and the maintenance of peace, good government, health and welfare of the township and its citizens, trade, commerce and manufacturers. 53 P.S. §66506 (emphasis added). Section 1527 of the Code states: [t]he board of supervisors may adopt ordinances to secure the safety of persons or property within the township and to define disturbing the peace within the limits of the township. 53 P.S. §66527 (emphasis added). Thus, we must examine whether the Ordinance aims to protect the health and welfare of the Township. The Ordinance curtails drunkenness at large public gatherings, prevents people from staying on the premises between the hours of 1:00 4 a.m. and 6:00 a.m., subjects the site to inspection by the Township for safety issues, and requires adequate sanitary facilities. When large groups of people gather and drink alcohol, they can present a danger to themselves and to the persons and property of the community. Preventing such a gathering from occurring late at night mitigates this danger while reducing noise pollution. Requiring adequate sanitation prevents the spread of disease and noxious odors, and subjecting a gathering to inspection and permitting processes is necessary for enforcement. Thus, because the Ordinance addresses valid health and welfare concerns, the Township has the authority to enact the Ordinance. The Yentzers next argue that the trial court should have found the Ordinance to be an invalid zoning ordinance. We disagree. A zoning ordinance is subject to the provisions of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202. A zoning ordinance that fails to follow the procedures included in the MPC is invalid on its face. See Board of Supervisors of Franklin Township v. Meals, 426 A.2d 1200, 1202 (Pa. Cmwlth. 1981) ("[W]e hereby hold that an ordinance which regulates a zoning principle, but does not contain the procedural safeguards mandated by the MPC is invalid on its face."). The Ordinance does not prohibit motocross. The Ordinance does not involve zones, lot sizes, set-backs, accessory uses, special exceptions, variances, or other concepts typical of zoning ordinances. Because the Ordinance aims to regulate public gatherings in order to protect the public health and welfare, and the terms of 5 the Ordinance do not exceed the scope of that goal, we conclude that the Ordinance is not a zoning ordinance. Therefore, the MPC requirements do not apply. The Yentzers next argue that the trial court erred by finding that the Township can impose an arbitrary threshold on the number of people that can gather together. We disagree. In support of their position, the Yentzers cite Simco Sales Service of Pennsylvania, Inc. v. Township of Lower Merion Board of Commissioners, 394 A.2d 642, 642-43 (Pa. Cmwlth. 1978), where a township enacted an ordinance banning the sale of ice cream on its streets. A corporation that operated ice cream trucks for fifty years challenged the regulation. Id. at 643. This court noted that an exercise of the police power must not be unreasonable, unduly oppressive, or patently beyond the necessities of the case. Id. at 644. This court found the ordinance to be an unreasonable and impermissible exercise of the township's police power. Id. Unlike the ordinance in Simco, the Ordinance here does not completely ban any activity. Simco, 394 A.2d at 644. Instead, the Ordinance merely requires permits, limits hours of operation, and curtails dangerous behaviors. The Ordinance does not specifically regulate motocross. Moreover, the court in Simco found the ordinance to be an arbitrary interference with private business because ice cream trucks posed no safety issues. Here, air pollution, noise pollution, property damage, fire hazards, and injury risks arising from large, public gatherings create legitimate health and safety concerns. 6 The Ordinance's requirements are rationally related to protecting these health-related, governmental interests. Thus, we find the Ordinance to be a reasonable exercise of the Township's power. Finally, the Yentzers argue that the trial court erred by finding that the Ordinance unconstitutionally distinguishes between related and unrelated persons. We disagree. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, §1. "`The equal protection provisions of the Pennsylvania Constitution are analyzed by this Court under the same standards used by the United States Supreme Court when reviewing equal protection claims under the Fourteenth Amendment to the United States Constitution."' McCusker v. Workmen's Compensation Appeal Board (Rushton Mining Company), 536 Pa. 380, 384, 639 A.2d 776, 777 (1994) (citation omitted). "The appropriate standard of review under an equal protection analysis depends upon the type of interest affected by the statutory classification." Id. at 385, 639 A.2d at 778. A classification implicating neither suspect classes nor fundamental rights will be sustained if it passes a "rational basis" test. Id. In order to sustain constitutional attack under the rational basis test, a classification "`need only be directed at the accomplishment of a legitimate governmental interest, and to do so in 7 . % a manner which is not arbitrary or unreasonable.' Id. at 391, 639 A.2d at 781 (citation omitted). Arguably, family gatherings are less likely to be rowdy or dangerous to community persons or property than gatherings of non-related persons or gatherings sponsored by businesses. Thus, we find that the exemption is rationally related to a legitimate government interest in protecting the health and welfare of the community.' Accordingly, we affirm. 'ROCHELLE S. RIEDMAN, Senior Judge 6 We do note that it appears unlikely that the family exemption would ever actually apply, given the unlikelihood that a gathering of 450 individuals could occur without including a single individual unrelated by blood or marriage. ' Moreover, even if we found the exemption unconstitutional, the remainder of the Ordinance would still be valid because the Ordinance includes a severance clause, and the Yentzers would remain unentitled to the declaratory judgment they seek. 8 t IN THE COMMONWEALTH COURT OF PENNSYLVANIA Rodney L. Yentzer, Carol M. Yentzer, Jeffrey A. Yentzer and : No. 1522 C.D. 2012 Rodney L. Yentzer II, t/d/b/a/ Doublin Gap Motocross, Inc., Appellants -..-. . _.;,` -*r c_ v. t ►" -Q . Hopewell Township, Cumberland County, : 'c r Pennsylvania : ... ORDER AND NOW, this 9th day of April , 2013,. we hereby affirm the July 24, 2012, order of the Court of Common Pleas of Cumberland County. ,40 c /_ '� -/ ROCHELLE S. FRIEDMAN, Senior Judge Certified from the Recoi APR - 9 2013 and Order Exit