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HomeMy WebLinkAbout03-5775 SheriJl T. Moyer, Esquire Attorney J.D. No. 15488 Timothy J. Nieman, Esquire Attorney J.D. No. 66024 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER,PETERKHO~ and SONIA KHO~ Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION EQUITY /J .1 C-.- NO. OJ - $'1'1 S l: iu\.l, IftUJ J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP Defendants 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 wamed that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 Sherill T. Moyer, Esquire Attorney J.D. No. 15488 Timothy J. Nieman, Esquire Attorney J.D. No. 66024 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Plaintiffs DEREK HATHAWAY, MARGARET HATHA WAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER,PETERJUHOtrnU and SONIA KHOURI Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CNIL ACTION EQUlTJ. L L.- NO. ().)- ~'1'l.s c.:,(>~ I~ J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP Defendants COMPLAINT NOW COME Plaintiffs Derek Hathaway, Margaret Hathaway, Martin Singer, Malini Singer, David Becker, Dana Bower, Peter Khouri and Sonia Khouri, by and through their undersigned attorneys, and file this Complaint, stating as follows: I. Plaintiff Derek Hathaway is an adult individual residing at 7 Northwatch Lane, Mechanicsburg, Cumberland County, Pennsylvania. 2. Plaintiff Margaret Hathaway is an adult individual residing at 7 Northwatch Lane, Mechanicsburg, Cumberland County, Pennsylvania. Derek Hathaway and Margaret Hathaway (the "Hathaways") are husband and wife. 3. Plaintiff Martin Singer is an adult individual residing at I Northwatch Lane, Mechanicsburg, Cumberland County, Pennsylvania. 486041.1 4. PlaintiffMalini Singer is an adult individual residing at 1 Northwatch Lane, Mechanicsburg, Cumberland County, Pennsylvania. Martin Singer and Malini Singer (the "Singers") are husband and wife. 5. Plaintiff David Becker is an adult individual residing at 3 Northwatch Lane, Mechanicsburg, Cumberland County, Pennsylvania. 6. Plaintiff Peter Khouri is an adult individual residing at 5 Northwatch Lane, Mechanicsburg, Cumberland County, Pennsylvania. 7. Plaintiff Sonia Khouri is an adult individual residing at 5 Northwatch Lane, Mechanicsburg, Cumberland County, Pennsylvania. Peter Khouri and Sonia Khouri (the "Khouris") are husband and wife. 8. Defendant J. W. Mumper Construction, Inc. ("Mumper") is a Pennsylvania corporation having a place of business at I Bull Run Court, Mechanicsburg, Cumberland County, Pennsylvania 17055. 9. Defendant Hempt Realty, Ltd. ("Hempt") is a Pennsylvania limited partnership with its registered office located at 205 Creek Road, Camp Hill, Pennsylvania. 10. Defendant James W. Mumper, Jr. is an adult individual residing at 435 Lisbum Heights Road, Lewisberry, Pennsylvania. 11. Defendant Jay E. Simons is an adult individual residing at 335 Mulberry Drive, Mechanicsburg, Pennsylvania. 12. Defendant Kathleen C. Simons is an adult individual residing at 335 Mulberry Drive, Mechanicsburg, Pennsylvania. Jay E. Simons and Kathleen C. Simons (the "Simons") are husband and wife. -2- 13. Defendant Silver Spring Township is a Pennsylvania Second Class Township with an address of 6475 Carlisle Pike, Mechanicsburg, Pennsylvania. 14. Defendants James Mumper, Mumper and Hempt are the developers of Hillside Farms (the "Hillside Farms Development"), a residential subdivision located in Silver Spring Township, Cumberland County, Pennsylvania. Originally, Hillside Farms was designated the "Hempt-Mumper Subdivision". 15. The Hillside Farms Development was created from a parcel of real property purchased and owned by Defendant James Mumper and formerly used for agricultural purposes. The Plaintiffs believe, and therefore aver, that James Mumper remains the record owner of a large portion ofthe Hillside Farms Development. 16. The Simons own lot number 62 in the Hillside Farms Development (the "Simons' Real Property") and have started constructing a residence thereon, including constructing a foundation and re-grading the Simons' Real Property. 17. The Plaintiffs are, and at all times relevant hereto were, the owners of real properties (collectively, the "Northwatch Properties") located in Cumberland County, Pennsylvania that are adjacent to Phase IV ofthe Hillside Farms Development and storm water retention pond B constructed thereon and the Simons' Real Property. The houses located on the Northwatch Properties are the Plaintiffs' primary residences. 18. The elevation ofthe Hillside Farms Development is higher than the elevation of the Northwatch Properties. 19. Through developing the Hillside Farms Development, Defendants Mumper, Hempt and James Mumper have changed and are in the process of changing a rural, undeveloped property into a multi-unit, residential development. In so doing, Defendants Mumper, Hempt - 3 - and James Mumper re-contoured and re-graded the land and have constructed, or are in the process of constructing paved roadways, paved driveways and various other impermeable surfaces and structures on the land. Further, Defendants Mumper, Hempt and James Mumper have constructed and are in the process of constructing a storm water collection system consisting of inlets, pipes, ditches, outlets, artificial swales, collection/drainage ponds and outlet devices that have altered the natural and diffused flow of stormwater and increase, collect, concentrate, divert and discharge storm water from the Hillside Farms Development and other properties onto and across the Northwatch Properties. Defendants Mumper, Hempt and James Mumper also imported a substantial amount of fill materials from sources other than the Hillside Farms Development and deposited such fill materials on the Hillside Farms Development, which substantially raised the elevation of certain areas of the Hillside Farms Development above the elevation of the Northwatch Properties and thereby changed the natural flow of surface waters from the Hillside Farms Development. 20. The Township conditionally approved the preliminary subdivision plan for the Hillside Farms Development on June 24, 1994. 21. The relevant Township Ordinance (the "1994 Silver Spring Township Ordinance") in effect in 1994 provided as follows: Section 509 - Storm Drainage I. Storm sewers, culverts and related installations should be provided, as necessary, to: * * * D. provide positive drainage away from on-site sewage disposal facilities. * * * - 4- 5. Storm drainage facilities should be designed not only to handle the anticipated peak discharge from the property being subdivided, but also the anticipated increase in run-off that will occur when all the property at a higher elevation in the same watershed is fully developed. The run-off after development shall be limited to a controlled rate of flow equal to or less than the run- off prior to development. Calculations shall be submitted for run- off before and after development. 22. The relevant Township Ordinance (the "2003 Silver Spring Township Ordinance"), Section 402.01.2, currently in effect provides as follows: "[t]he calculated post- development runoff. . . shall be designed so that the peak discharge of the calculated post- development runoff to an adjacent property does not exceed the peak discharge of the calculated pre-development runoff for a Type II storm event." 23. Despite the 1994 and 2003 Silver Spring Township Ordinances, the rate of run- off of storm water after development and across the Northwatch Properties of Plaintiffs is greater than the rate of run-off prior to development. Specifically, the post-development rate ofrun-off for the two year storm event is 6.06% greater than pre-development, the post-development rate of run-off for the 10 year storm event is 13.60% greater than pre-development and the post- development rate of run-off for the 100 year storm event is 27.20% greater than pre- development. 24. The storm water detention and discharge system that was actually constructed and installed at stormwater detention pond B on the Hillside Farms Development differs in significant ways from the storm water detention and discharge system that was outlined in the Storm Water Management Report filed by Defendants Mumper, Hempt and James Mumper in support of the application(s) for approval of the Hillside Farms subdivision plans. Specifically, the outlet or discharge structure documented in the Storm Water Management Report does not reflect the outlet or discharge structure for pond B as shown on the H. E. Black Storm Water - 5 - Management Plan from the Final Subdivision Plan for Hillside Farms Phases III and IV dated November 15,2000 (revised May 24,2002). Further, the length of the outlet protection for pond B as actually constructed is undersized. 25. The post-development rate of storm water run-off discharged onto the Northwatch Properties from storm water detention pond B on the Hillside Farms Development and Lot 62 owned by the Simons violates, among other things, the 1994 Silver Spring Ordinance, the 2003 Silver Spring Ordinance, the Pennsylvania Storm Water Management Act and Pennsylvania common law because the storm water is and will be collected, concentrated, diverted and discharged in higher volumes, at higher rates, and at higher velocities than prior to the construction ofthe Hillside Farms Development. 26. The storm water run-off unnaturally increased, diverted, collected, concentrated and discharged upon and across the Northwatch Properties by Defendants Mumper, Hempt and James Mumper creates significant flooding and potential for flooding, soil erosion and property damage on the Northwatch Properties. 27 . Venue is proper in the Court of Common Pleas of Cumberland County because the transactions or occurrences out of which the cause( s) of action arose took place in Cumberland County and the real property at issue is located in Cumberland County. COUNT I INJUNCTIVE RELIEF - MUMPER., HEMPT. JAMES MUMPER and THE SIMONS 28. Paragraphs I through 27 above are incorporated herein by reference. - 6 - 29. On numerous occasions since the commencement ofthe construction of the Hillside Farms Development, the Plaintiffs have observed flooding of the Northwatch Properties from storm water discharged from the Hillside Farms Development. 30. The damage caused by Defendants Mumper, Hempt, James Mumper and the Simons will continue unless this Court enjoins their conduct. 31. The flooding caused by the storm water runoff has caused, and will continue to cause, significant damage to the Northwatch Properties, will decrease the value of the Northwatch Properties and has deprived the Plaintiffs oftheir ability to use and enjoy their real properties. Such flooding will eventually cause the malfunction and/or failure ofthe on-site sewage disposal facilities located on the Northwatch properties. 32. The Plaintiffs have suffered and will continue to suffer irreparable harm if Defendants Mumper's, Hempt's, James Mumper's and the Simons' wrongful and tortious conduct as described herein is permitted to continue. 33. Mumper's, Hempt's, James Mumper's and the Simons' wrongful and tortious conduct is continuing in nature in that every heavy storm results in flooding or potential flooding of the Northwatch Properties. 34. The Plaintiffs have no adequate remedy at law, and their interests and those ofthe public can only be protected by requiring Defendants Mumper, Hempt, James Mumper and the Simons to cease interfering with the Northwatch Properties. WHEREFORE, Plaintiffs respectfully request that this Court: (i) Preliminarily and permanently enjoin Defendants Mumper, Hempt, James Mumper and the Simons from interfering with their property rights; (ii) Preliminarily and permanently enjoin Defendants Mumper, Hempt, James Mumper and the Simons from discharging storm water onto their - 7 - property in amounts or rates of discharge in excess of that which occurred naturally prior to the construction ofthe Hillside Farms Development; and (iii) Grant Plaintiffs such other and further relief as this Court deems necessary and appropriate, including, but not limited to, reasonable attorneys' fees and costs. COUNT II STORM WATER MANAGEMENT ACT - MUMPER. HEMPT and JAMES MUMPER 35. Paragraphs I through 34 above are incorporated herein by reference. 36. The Plaintiffs have been damaged because of Defendants Mumper's, Hempt's and James Mumper's interference with their property rights as outlined above and as prohibited by the Pennsylvania Storm Water Management Act ("SWMA"), 32 P.S. S680.1 et seq. 37. Defendants Mumper, Hempt and James Mumper, without the Plaintiffs' permission, have caused, and continue to cause, the Northwatch Properties to be entered, disturbed, injured and flooded and have disturbed and spoiled the soil, grass and plantings then and there growing. 38. Defendants Mumper's, Hempt's and James Mumper's trespass has on multiple occasions damaged the Northwatch Properties. 39. Defendants Mumper's, Hempt's and James Mumper's actions violate the SWMA and the Plaintiffs are entitled to damages from Defendants Mumper, Hempt and James Mumper pursuant to 32 P.S. g680.15. WHEREFORE, Plaintiffs demand judgment in their favor and against the Defendants Mumper, Hempt and James Mumper in an amount in excess of$25,000.00, exclusive of interest - 8 - and costs plus any other relief that this Court deems appropriate including, but not limited to, reasonable attorneys' fees and costs. COUNT III TRESPASS - MUMPER. HEMPT. JAMES MUMPER and THE SIMONS 40. Paragraphs I through 39 above are incorporated herein by reference. 41. Defendants Mumper's, Hempt's, James Mumper's and the Simons' actions constitute common law trespass and the Plaintiffs have been damaged thereby WHEREFORE, Plaintiffs demand judgment in their favor and against the Defendants Mumper, Hempt, James Mumper and the Simons in an amount in excess of$25,000.00, exclusive of interest and costs plus any other relief that this Court deems appropriate including, but not limited to, reasonable attorneys' fees and costs. COUNT IV PRIVATE NUISANCE - MUMPER. HEMPT. JAMES MUMPER and THE SIMONS 42. Paragraphs I through 41 above are incorporated herein by reference. 43. Defendants Mumper's, Hempt's, James Mumper's and the Simons' actions constitute a private nuisance and the Plaintiffs have been damaged thereby. WHEREFORE, Plaintiffs demand judgment in their favor and against the Defendants Mumper, Hempt, James Mumper and the Simons in an amount in excess of$25,000.00, exclusive of interest and costs plus any other relief that this Court deems appropriate including, but not limited to, reasonable attorneys' fees and costs. -9- COUNT V NEGLIGENCE PER SE - MUMPER, HEMPT AND JAMES MUMPER 44. Paragraphs I through 43 above are incorporated herein by reference. 45. Defendants Mumper, Hempt and James Mumper have violated the 1994 Silver Spring Ordinance, the SWMA and the 2003 Silver Spring Ordinance all of which prohibit increasing the rate, discharge, amount and velocity of storm water run-off. Such actions constitute negligence per se and Defendants have breached their duty to Plaintiffs. 46. Plaintiffs have been damaged as a result of Defendants' negligence. WHEREFORE, Plaintiffs demand judgment in their favor and against the Defendants Mumper, Hempt and James Mumper in an amount in excess of$25,000.00, exclusive of interest and costs plus any other relief that this Court deems appropriate including, but not limited to, reasonable attorneys' fees and costs. COUNT VI MANDAMUS - SILVER SPRING TOWNSHIP 47. Paragraphs I through 46 above are incorporated herein by reference. 48. The actions of Mumper, Hempt and James Mumper outlined above are contrary to and in violation of the 1994 Silver Spring Township Ordinance, the SWMA and the 2003 Silver Spring Township Ordinance. 49. Despite the requirements of the 1994 Silver Spring Ordinance, the SWMA and the 2003 Silver Spring Township Ordinance, Silver Spring Township has approved the Hillside Farms subdivision plans and the storm water management plans submitted by Defendants Mumper, Hempt and James Mumper. - 10- 50. The Plaintiffs lack an adequate remedy at law to enforce their rights under the 1994 Silver Spring Ordinance, the SWMA and the 2003 Silver Spring Township Ordinance. WHEREFORE, Plaintiffs respectfully request that this Court direct Silver Spring Township to enforce its ordinances and the SWMA and revoke the approvals of the Hillside Farms Development Subdivision Plans within fifteen (15) days as well as award the Plaintiffs their costs, including reasonable attorney's fees. Respectfully submitted, RHOADS & SINON LLP By: she~~r,lJ Timothy J. Nieman One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 . Attorneys for Plaintiffs - II - VERIFICATION Derek Hathaway, deposes and says, subject to the penalties of 18 Pa. C.S. S 4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. Date: o~\'''~ 03 ~~fJ'~ - 12- VERIFICATION Aarl,'A Sff( /1712),,, <.J;'it!r C.S. S 4904 r~ting to unsworn falsification to authorities, that the facts set forth in the , deposes and says, subject to the penalties of 18 Pa. foregoing Complaint are true and correct to the best of his knowledge, information and belief. Date: 9}tl J>..s ~~/ ?Jb;L, -d-jb W ?e/-<< ~ VERIFICATION ~\)Y) l ~ ~ ~~~~~s and says, subject to the penalties of 18 Pa. C.S. S 4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. Date: 9 - / '3 ~ D.':> ~A S"d, ~'''_ICQ.~ ~~ - tS .t ...:l ~ -- - - o ~ III ~ ~ ~ 1- \' C) ~ . '-L) ~~ .",~ --I -n,"; ri-"' '" r-:~ i_ :~~ ' );,~ '" :'Jf(;) , "~'i 'b s;'_::'~O ,,,-, -- ::-:~ I C...; "T:. ) 'X' :.,. -< q) DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALlNI SINGER, DAVID BECKER, PETER KHOURI and SONIA KHOURI Plaintiffs v. J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03-5775 Civil Term CIVIL ACTION EQUITY ENTRY OF APPEARANCE TO THE PROTHONOTARY: matter. Please enter our appearance on behalf of Hempt Realty, Ltd., in the above Dated: November /3 , 2003 Respectfully submitted, McNEES WALLACE & NURICK ~ Lawrence R. Wieder 1.0. No. 16707 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone 717237-5229 Attorneys for Hernpt Realty, Ltd. CERTIFICATE OF SERVICE 1-1 AND NOW, on this /3 day of November, 2003, I hereby certify that I have served a true and correct copy of the within document, via first class mail postage paid as follows: Timothy J. Nieman, Esquire Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 J.W. Mumper Construction, Inc. 1 Bull Run Court Mechanicsburg, PA 17055 James W. Mumper, Jr. 435 Lisburn Heights Road Lewisberry, PA 17339 Jay E. Simons 335 Mulberry Drive Mechanicsburg, PA 17055 Kathleen C. Simons 335 Mulberry Drive Mechanicsburg, PA 17055 Silver Spring Township 6475 Carlisle Pike Mechanicsburg, PA 17055 McNEES WALLACE & NURICK LLC BY?~ Lawrence R. Wieder, Esquire 1.0. No. 16707 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717237-5229 Attorneys for Hempt Realty, Ltd. (") C 7" -ui.:.J:; n1rr-: z:; fi, c', .<" C-. ::;:::;..-, ~'(- FC -,:/ ::z " '-...... o <...) ;;;0: S1 -1=" (") .,., ::~:J ~ ~:::.\ ,Tl '_::J (~) . '->=P >~.C) :)rn -I .",. :Q -0 t)? "-" s:- DEREK HATHAWAY, MARGARET HATHA WAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER, PETER KHOURI and SONIA KHOURI, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY v. J. W. MUMPER CONSTRUCTION, INC., HEMPTREALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, : NO. 03-5775 Civil Term KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP, Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned in the above-captioned matter on behalf of Defendants Jay E. Simons and Kathleen C. Simons. Thank you. Dated: November 13,2003 Of Counsel Respectfully submitted, (/Ji Charles O. Beckie, , squire Attorney I. D. No. 47564 ~ BECKLEY & MADDEN 212 North Third Street P. O. Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 CERTIFICATE OF SERVICE I, Charles O. Beckley, 11, hereby certify that a copy of the foregoing document was served this day upon the persons and in the manner indicated below: SERVICE BY FACSIMILE AND REGULAR MAIL: DATED: November 13, 2003 Sherill T. Moyer, Esquire Timothy J. Nieman, Esquire Rhoads & Sinon LLP One South Market Square, 12th Floor P. O. Box 1146 IImri,mrrg, PA 17IO~I ~c:fl ~ ' Charles O. Beckley, I (") ~;; <: ut5" rn,.-, : Z:.J zr. ~i,~' ~,- Sf; ~~ -j -, c..-:> w (") " -- ~ "".::- n .L.- ." ~, -i? ~~3. \.';:) "c-rn :.:j -,..,.. :D -< "'"0 1'0 :n Ul . v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION EQUITY DEREK HATHAWAY, et al. Plaintiffs J'w. MUMPER CONSTRUCTION, INC., et al. NO. 03-5775 Civil Term Defendants ENTRY OF APPEARANCE Please enter the appearance of the undersigned in this action on behalf of J'w. Mumper Construction, Inc. and James W. Mumper, Jr. MCNEES WALLACE & NURICK LLC By lJa~/.I d ~ David E. L.ehman 10 No. 15243 Scott A. Gould 10 No. 63427 Alexandra C. Chiaruttini 10 No. 80428 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232..8000 Attorneys for Defendants Dated: November 14, 2003 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail upon the following: Sherill T. Moyer, Esquire Timothy J. Nieman, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Charles O. Beckley, II, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 0{Jb1 (I ~_ David E. Lehman Of Counsel to Defendants Dated: November 14, 2003 . (") 0 () c '-" ~I ~ U ,", , ":::J (n[" 2.-l Z -_..J OJ -< r-:: .Y) :J'~ , ::1.: Z C, 5> c.: :..') ~.:..::-i Z .,..... =< ,- ~'21 -<. DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALINl SINGER, DAVID BECKER,PETERKHOURI and SONIA KHOURI Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CNIL ACTION EQUITY : NO. 03-5775 Civil Term J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. 11.1UMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP Defendants ACCEPTANCE OF SERVICE I accept service of the Complaint on behalf of Jay E. Simons and Kathleen C. Simons and certifY that I am authorized to do so. Dated: A)r)ve4. he,. 1'1; JaJ.J ~~k / Charles O. BeCkleY,1~;1 Beckley & Madden 212 N. Third Street P.O. Box 11998 Harrisburg, PA 17108 493518.1 ....-CL rn[-r -'" _.~ r"-___.;. / . c?- . -< r::: ~F- F>' :~,; :) (") C~ C) f__) ':.1 .,.. f"J ." -t.. 1'....) -, "t;."- 'c' :< -J DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER,PETERKHOlffiU and SONIA KHOlffiU Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION EQUITY : NO. 03-5775 Civil Term J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP Defendants ACCEPTANCE OF SERVICE I accept service of the Complaint on behalf of J.W. Mumper Construction, Inc. and James :~:"::::~i~tlm(l= ,"iliDri?:Lit12 jt David E. Lehnian LD. No. 15243 100 Pine Street P.O. Box 1166 Harrisburg, PAl 7108-1166 (717) 237-5229 --------- Attorney for J.W. Mumper Construction, Inc. and James W. Mumper, Jr. 495180.1 21 a !l? ~ 1 '"> , -"" - ?8. j:S'"' :s::;O -, ~ J:i lp ~2 - " ~ r::- ~ co DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER, PETERKHOURI and SONIA KHOURI Plaintiffs v. J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA : CNIL ACTION EQUITY : NO. 03-5775 Civil Term ACCEPTANCE OF SERVICE I accept service of the Complaint on behalf of Silver Spring Township and certifY that I am authorized to do so. Dated: 11/21-1/03 495180.2 Ste 23 r y rive Hummelstown, P A 17036 (717) 903-1268 Attorney for Silver Spring Township ~I C) . ~ w ~ --, C"') i"fi J:l ~c I -o~ e:. ,;g ;,:::6 -,;, :r ~8 :z: 2~ c- - 0 ~ " ~ .~ 0) ~ DEREK HATHAWAY, MARGARET HATHA WAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER,PETERKHOURI and SONIA KHOURI Plaintiffs v. J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION EQUITY : NO. 03-5775 Civil Term ACCEPTANCE OF SERVICE I accept service of the Complaint on behalf of Hempt Realty, Ltd. and certifY that I am authorized to do so. Dated: '11l.-tL 0 ~ 495180.1 --:r ~../ Lawrence R. Wieder I.D. No. 16707 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5229 Attorney for Hempt Realty, Ltd. e a SJ? ~~ !1J iil" , .'i, ~ - ~~' ~c) ~, . ~() ~ :r., :t:E' ';;" "'~~ ~"~cf DEREK HATHA WAY, :IN THE COURT OF COMMON PLEAS MARGRAET HATHA WAY, :CUMBERLAND COUNTY, PENNSYL VANIA MARTIN SINGER, MALINI SINGER,: DAVID BECKER, PETER KHOURI and SONIA KHOURI Plaintiffs v. : NO. 03-5775 Civil Term J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS And SILVER SPRING TOWNSHIP Defendants DEFENDANT SILVER SPRING TOWNSHIP'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, cornes the Defendant, Silver Spring Township, by and through their attorney, Steven A. Stine, and object to Plaintiffs' complaint as follows: COUNT I FAILURE TO CONFORM TO LAW OR RULE OF COURT I. Rule 1095(3) of the Pennsylvania Rules of Civil Procedure requires that the plaintiff in a mandamus action set forth in the complaint the act or duty that the defendant is required to perform and the refusal to perform it. 2. Plaintiffs have not averred in the Complaint the act or duty the Defendant Silver Spring Township (the "Township") is required to perform. 3. Plaintiffs have not averred that the Defendant Township has refused to perform a required act or duty. WHEREFORE, Defendant Silver Spring Township respectfully request that this Honorable Court dismiss Count VI - Mandamus, ofthe Complaint against Defendant Silver Spring Township. COUNT II LEGAL INSUFFICIENCY OF COMPLAINT (DEMURRER) 4. Paragraphs 1 through 3 are incorporated herein by reference. 5. The Storm Water Management Act provides that a municipality may institute an enforcement action to abate violations of the Act, any watershed storm water plan, regulations and ordinances. 6. Enforcement of the Storm Water Management Act by the Township is discretionary and not a mandatory duty or ministerial act. 7. The 1994 and 2003 Silver Spring Township Storm Water Ordinances provide that the Township may initiate actions to enforce the ordinances. 8. 9. 10. Enforcement of the 1994 and 2003 Silver Spring Township Storm Water Management Ordinances by the Township is discretionary and not a mandatory duty or ministerial act. Mandamus does not lie to compel the performance of discretionary acts. Plaintiffs have failed to state a claim against Defendant Township upon which relief can be granted. WHEREFORE, Defendant, Silver Spring Township respectfully requests that this Honorable Court dismiss Count VI - Mandamus, of Plaintiffs' Complaint against Defendant Silver Spring Township. Dated: Respectfully submitted, {zl\s/o3 23 Waverly Drive Hummelstown, P A 17036 (717) 903-1268 Attorney for Defendant Silver Spring Township CERTIFICATE OF SERVICE I, STEVEN A. STINE, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Defendant Silver Spring Township's Preliminary Objections to Plaintiffs' Complaint, upon the following below-named individual(s) by first class mail, postage prepaid this 15th day of December, 2003. SERVED UPON: Sherrill T. Moyer, Esquire Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, PA 17108-1146 David E. Lelunan, Esquire McNees, Wallace & Nurick LLC P.O. Box 1166 Harrisburg, PA 17108-1166 -" C) S "U ~,- D1~-f ?' ~ fjC ~~C ;:: I: :i; Co" ,-- ~.~~ --< e- e]) c' W C:.J I"q ':"") o ., "", (f, " ~ -'c.,> ,: ~~ -j ~iJ -< DERK HATHAWAY, et al. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION EQUITY NO. 03-5775 Civil Term J. W. MUMPER CONSTRUCTION, INC.,: et al. Defendants ANSWER OF J.W. MUMPER CONSTRUCTION, INC., HEMPT REALTY L TO. AND JAMES W. MUMPER, JR. Now come the Defendants J. W. Mumper Construction, Inc., Hempt Realty Ltd. and James W. Mumper, Jr., by their counsel McNees Wallace & Nurick LLC and in response to Plaintiffs' Complaint say as follows: 1. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted upon information and belief. 4. Admitted upon information and belief. 5. Admitted upon information and belief. 6. Admitted upon information and belief. 7. Admitted upon information and belief. 8. Denied. J.W. Mumper Construction Inc. is no longer doing business from 1 Bull Run Court, Mechanicsburg, Cumberland County, Pennsylvania 17055. Rather, J.W. Mumper Construction Inc. has a place of business at 6 Lynchburg Court, Mechanicsburg, Pennsylvania 17050. By way of further response, Defendant J.W. Mumper Construction Inc. does not have any ownership interest in Hillside Farms or Hillside Farms Development. 9. Admitted. 10. Admitted. 11. Admitted upon information and belief. 12. Admitted upon infonmation and belief. 13. Admitted upon information and belief. 14. Admitted in part, denied in part. It is admitted that Hillside Farms was designated as the "the Hempt-Mumper Subdivision" in subdivision plans submitted to Silver Spring Township. It is denied that Defendant James Mumper, Mumper and Hempt are joint developers of Hillside Farms. Hempt Realty owns and is developing the land which includes Phases I, II & III. James Mumper owns and is developing the property which comprises Phases IV & V. By way of further answer, Defendant J. W. Mumper Construction, Inc. does not own and is not developing any part or phase of Hillside Farms Development. 15. Admitted in part, denied in part. It is admitted that Hillside Farms Development includes land which was formerly used for agricultural purposes. It is denied that Defendant James Mumper purchased and/or owned all of the property included in Hillside Farms Development. It is admitted that Phases IV and V of the Hillside Farms Development were created from a parcel of real property purchased by Defendant James Mumper. Phases I, II and III were originally owned by Max Hempt but are not owned and being developed by Hempt Realty LTD. It is admitted that James 2 Mumper remains the record owner of a portion of the Hillside Farms Development. It is denied that the portion is "large" as the term is not defined. 16. Admitted, upon infonmation and belief. 17. Admitted in part, denied in part. It is admitted that Plaintiff Derek Hathaway's home is adjacent to Phase IV of the Hillside Farms Development. It is denied that Plaintiff Becker personally owns the real property 3 Northwatch Lane. Defendants are without information or knowledge sufficient to form a belief as to the truth of the remaining averments of paragraph 17, and the same are therefore denied. 18. Denied as stated. Certain portions of the Hillside Farms Development are at a lower elevation than the Northwatch Properties or are at the same elevation. 19. Admitted in part, denied in part. Pursuant to approval of Silver Spring Township, it is admitted that Defendants James Mumper and Hempt have been in the process of and continue to be in the process of changing previously agricultural property into a residential development. It is denied that J'w. Mumper Construction, Inc. has anything to do with the development of Hillside Farms Development. It is admitted that as part of the development process Defendants James Mumper and Hempt have engaged in grading and earth moving activities. Additionally, as part of the residential development, Defendants James Mumper and Hempt have constructed paved roadways, driveways and other associated infrastructure within the Development. It is also admitted that Defendants James Mumper and Hemp!. have constructed a storm water collection system which includes inlets, pipes, ditches, outlets, swales and collection and drainage ponds. It is denied that this storm water collection system, including the referenced devices, has altered the natural flow of storm water; these 3 devices are designed considering natural predevelopment storm water flow. The system and the devices are designed to permissibly control and direct storm water from the Hillside Fanms Development. It is admitted that fill material was used in some of the grading and construction process for Hillside Farms Development. It is denied that the use of fill substantially raised the elevation of areas of Hillside Farms Development. It is denied that the natural flow of surface waters from the Hillside Farms Development has been drastically altered with respect to the Northwatch Properties. By way of further answer, the natural flow of surface waters predevelopment was considered in the design of the existing storm water infrastructure and sediment basin(s). 20. Admitted. 21. Admitted in part, denied in part. Defendants admit that the portion of the 1994 Silver Spring Township Ordinance Section 509 set forth in Plaintiffs' Complaint is an accurate partial quotation of Section 509. However, the Township Ordinance Section 509 Storm Drainage is a written instrument which speaks for itself. Therefore, Plaintiffs' characterization of the 1994 Silver Spring Township Ordinance Section 509 is denied. 22. Admitted in part, denied in part. It is admitted that Plaintiffs have accurately and partially quoted Section 402.01.2 of the 2003 Silver Spring Township Ordinance. However, the extensive document is a writing that speaks for itself. Therefore, Plaintiffs' characterization of said writing is denied. By way of further answer, the 2003 Silver Spring Township Ordinance was not in effect at the time that Defendants James Mumper and Hempt received planning approval from the Township. 4 Therefore, the 2003 Silver Spring Township Ordinance does not apply to the approved storm water management plan activity. 23. Denied. It is denied that the rate of run-off of storm water after development of Hillside Farms and across the Plaintiffs' Northwatch Properties is greater than that of the rate of run-off prior to development of Hillside Farms. Defendants are without information or knowledge sufficient to fonm a belief as to the truth of the remaining averment of paragraph 23, and the same are therefore denied. 24. Denied as stated. It is denied that the storm water detention and discharge system that was actually constructed and installed at storm water detention pond B on the Hillside Farms Development differs in significant ways from the storm water detention and discharge system that was outlined in the Storm Water Management Report filed by Defendants James Mumper and Hempt in support of the application for approval of subdivision plans. It is admitted that a portion of the outlet or discharge structure documented in the Storm Water Management R.eport differs slightly from the current structure in pond B as shown on the H. E. Black Storm Water Management Plan. The difference is in the appearance of the installed corrugated metal pipe arch. The functionality and capacity of the arch, however, did not change from the approved design. Further, the change allowed for the increased capacity of pond B. It is denied that the length of the outlet protection for pond B as constructed is undersized. 25. Denied. It is denied that storm water from detention pond B on the Defendants' property is and will be collected, concentrated, diverted and discharged in at a higher rate, and at higher velocities than prior to the construction of Hillside Farms Development. By way of further answer, the volume, rate and velocity was approved in 5 accordance with the local ordinance(s) by Silver Spring Township. The remaining averments set forth in paragraph 25 are conclusions of law to which no responsive pleading is required. 26. Denied. It is denied that the storm water run-off from Hillside Farms Development unnaturally increased, diverted, collected, concentrated and discharged upon and across the Northwatch Properties or that it creates a significant flood and potential for flooding, soil erosion and property damage on the Northwatch Properties. 27. Admitted. COUNT I INJUNCTIVE RELIEF - MUMPER. HEMPT. JAMES MUMPER and THE SIMONS 28. Defendants incorporate paragraphs 1 through 27 herein as if they are set forth in full. 29. Denied. After reasonable investigation, Defendants Mumper, Hempt and James Mumper Uointly "Defendants") are without information and knowledge sufficient to form a belief as to the truth of the averment in paragraph 29, and the averment is therefore denied. By way of further answer, Defendants are aware of only one incident of water release from pond B at which time the sediment controls were not yet complete. In that instance, the entire Hillside Farms Development and surrounding communities were inundated by a storm of monumental proportions. 30. Denied. It is denied that the Defendants caused any damage. It is also denied that Plaintiffs will continue to be damaged. 6 31. Denied. It is denied that storm water runoff has caused or will continue to cause significant damage to the Northwatch Properties; that the properties will decrease in value; and that Plaintiffs have been deprived of their ability to use and enjoy their real properties. It is denied that Hillside Farms Development causes flooding of the Northwatch Properties. It is further denied that water from Hillside Farms Development will eventually cause the malfunction and/or failure of the on-site sewage disposal facilities located on the Northwatch Properties. 32. Denied. It is denied that Plaintiffs have suffered or will continue to suffer irreparable harm as a result of storm water from Defendants James Mumper and Hempt's properties. The remaining averments contained in paragraph 32 constitute legal conclusions and are therefore denied. 33. Denied. It is denied that the Defendants have engaged in any wrongful or tortious conduct. It is further denied that every heavy storm results in flooding or potential flooding of the Northwatch Properties. The remaining averments contained in paragraph 33 constitute legal conclusions to which no responsive pleading is required. 34. Denied. It is denied that Defendants are or will interfere with the Northwatch Properties. The remaining averment is a conclusion of law to which no responsive pleading is required. WHEREFORE, Defendants, J'w. Mumper Construction, Inc., Hempt Realty LTD. and James W. Mumper, Jr. request that this Complaint be dismissed with prejudice, and that Defendants be awarded costs. 7 COUNT II STORM WATER MANAGEMENT ACT - MUMPER. HEMPT and JAMES MUMPER 35. Defendants incorporate paragraphs 1 through 34 herein as if they are set forth in full. 36. Denied. It is denied that Plaintiffs have been damaged. The remaining averments contained in paragraph 36 constitute legal conclusions to which no responsive pleading is required. 37. Denied. It is denied that the Defendants have caused and continue to cause, the Northwatch Properties to be entered, disturbed, injured and flooded and have disturbed and spoiled the soil, grass and plantings then and there growing. 38. Denied. It is denied that the Defendants have damaged the Northwatch Properties. The remaining averments in paragraph 38 constitute legal conclusions to which no responsive pleading is required. 39. The averments contained in paragraph 39 constitute legal conclusions to which no responsive pleading is required. WHEREFORE, Defendants, J. W. Mumper Construction, Inc., Hempt Realty LTD. and James W. Mumper, Jr. request that this Complaint be dismissed with prejudice, and that Defendants be awarded costs. COUNT III TRESPASS - MUMPER. HEMPT. JAMES MUMPER and THE SIMONS 40. Defendants incorporate paragraphs 1 through 39 herein as if they are set forth in full. 8 41. The averments contained in paragraph 41 constitute legal conclusions to which no responsive pleading is required. WHEREFORE, Defendants, J'w. Mumper Construction, Inc., Hempt Realty, LTD. and James W. Mumper request that this Complaint be dismissed with prejudice, and that Defendants be awarded costs. COUNT IV PRIVATE NUISANCE - MUMPER. HEMPT. JAMES MUMPER and THE SIMONS 42. Defendants incorporate paragraphs 1 through 41 herein as if they are set forth in full. 43. The averments contained in paragraph 43 constitute legal conclusions to which no responsive pleading is required. WHEREFORE, Defendants, J.W. Mumper Construction, Inc., Hempt Realty, LTD. and James W. Mumper, Jr. request that this Complaint be dismissed with prejudice, and that Defendants be awarded costs. COUNT V NEGLIGENCE PER SE - MUMPER. HEMPT AND JAMES MUMPER 44. Defendants incorporate paragraphs 1 through 43 of its Answer as if set forth in full. 45. The averments contained in paragraph 45 constitute legal conclusions to which no responsive pleading is required. 9 46. Denied. It is denied that Plaintiffs have been damaged. The remaining averments contained in paragraph 45 constitute legal conclusions to which no responsive pleading is required. WHEREFORE, Defendants, J'w. Mumper Construction, Inc., Hempt Realty, LTD. and James W. Mumper, Jr. request that this Complaint be dismissed with prejudice, and that Defendants be awarded costs. COUNT VI MANDAMUS - SILVER SPRING TOWNSHIP 47. Count VI is addressed to a Defendant other than the answering Defendants, therefore no responsive pleading is required. Respectfully submitted, McNEES WALLACE & NURICK LLC Date: December 18, 2003 By: ~,l~M~ Davi E. Lehman, Esquire 10 No. 15243 Lawrence R. Wieder, Esquire 10 No. Scott A. Gould, Esquire 10 No. 63427 Alexandra C. Chiaruttini, Esquire 10 No. 80428 100 Pine Street, ih Floor P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5285 Attorneys for Defendants Mumper Construction, Inc. James W. Mumper, and Hempt Realty, LTD. 10 12/10/2003 14:07 71 76916931 J W MUMPER CONST PAGE 02 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. 9 4904 relating to unsworn falsification to authorities, I hereby certify that the facts set forth in the foregoing document are true and correct to the best of my information and belief. Dated: 'D~. ql ~OO:s ~~1JCf\1l~ 12/18/2003 08:26 .._-~~~~ .... u...... .L"-A PAGE 02 lo!J003 7177610635 HEMPTBROSINC VERIFICATION I. George Hempt. President of H"mpt Realty, a corporation, Defendant in the within action, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, Information and belief. J r.mderstand that fal:,;e statements herein al'tl made subject to the penalties of 18 F'a.C.S. ~4904, relating to unSWorn falsification to authorities. Dated: December I);. , 2003 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail upon the following: Sheri II T. Moyer, Esquire Timothy J. Nieman, Esquire Rhoads & Sinon, LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Charles O. Beckley, II, Esquire Beckley & Madden 21 2 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, PA 17036 ~ Ct~~~ Alexandra C. Chiaruttini Counsel to Defendants Dated: December 18, 2003 (") ..... C~ = C) (;..~ <..., -q '"' C::J p} 5:. r.. fll~n ,'- -~'.J{'"q Cl :-l'JC::J C;.1. :l} ~ -;) ~~:(~ -,~ :;:j c.) ?~'jj"ll ~' "- , , , ~";) c.'() ""' ,'B!l104/2004 10: 33 7172405573 PROTHONOTARV C LONG PAGE 01/01 PRAECIPE FOR LISTING CASE I'OR ARGUMENT (Must be typewritten ancI sul:rnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY, Please list the within matter for the "ElXt ~t Court. --------~-------------------------------------------_.---------------------------------- CAPTION OF CASE (entim caption must be stated in full) DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER, PETER KHOURI and SONIA KHOURI vs. J.W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP ( Plaintiff) (~fendant ) No. 03-5775 Civil Term 19 L State matter to be argued (i.e., plaintiff's motion for new trial. defendant's dElTUr4er to ccrttllaint. ete.), Defendant Silver Spring Township's Pr,e~iminary Objections to Complaint. 2. Identify counsel who will argue case: (a) far Pla.i.ntiff: 1\ddress: Sherrill T. Moyer, Esquire Rhoads & Sinon P.O. Box 1146 HarriSburg, PA 17108-1146 Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, PA 17036 (b) for defendant: Address , 3. I will notify all. parties in writing within two days that th.is case has been listed for 1lrgUnent. 4. Az1junent COurt Date: Next available Argumeet Court date. 1 :? e) Ii/Of Dated: CERTIFICATE OF SERVICE I, STEVEN A. STINE, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Praecipe for Listing Case for Argument, upon the following below-named individual(s) by first class mail, postage prepaid this 16th day of August 2004. SERVED UPON: Sherrill T. Moyer, Esquire Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, P A 17108-1146 David E. Lehman, Esquire McNees, Wallace & Nurick LLC P.O. Box 1166 Harrisburg, P A 17108-1166 Charles O. Beckley, Esquire Beckley & Madden P.O. Box 11998 Harrisburg, P A 17108-1998 STEVEN A. STINE, ESQUIRE --* . . . ", :;:;:~; ~=J n ),::,.. (~... t,"j f"..) 1') "" DEREK HATHA WAY, MARGRAE HATHAWAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER, PETTER KHOURI and SONIA KHOURI IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-5775 Plaintiffs v. J.W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP Defenoants WITHDRAW AND ENTRY OF APIPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of Timothy J. Nieman as counsel for Plaintiffs and enter the appearance of Dean F. Piermattei as counsel B)r Plaintiffs. Respectfully submitted, Respectfully submitted, RHOADS & SINON LLP By l?!14l1-- ---rlmothy J. ieman, Esquire P.O. Box 1146 Harrisburg,PA 17108-1146 (717) 233-5731 RHOADS & SINON LLP ---=:; ~~- , ~ye . Pierrnattei. Esquire ~P.O. Box 1146 ' . Harrisburg, PA 17108-1146 (717) 233-5731 Date: August 23, 2004 530900.1 CERTIFICATE OF SERVICE l'J~ I hereby certify that on this f2'::.JL. day of August, 2004, a true and correct copy of the foregoing "Withdraw and Entry of Appearance" was served by means of United States mail, first class, postage prepaid, upon the following: Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, P A 17036 David E. Lehman, Esquire McNees Wallace & Nurick LLC 100 Pine Street, 7th Floor P.O. Box 1166 Harrisburg, PA 17108-1166 Charles O. Beckley, II, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 ~~('U~ Teresa L. Paulhamus DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALlNI SINGER DAVID BECKER, PETER KHOURI And SONIA KHOURI Plaintiffs : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : CIVIL ACTION : NO. 08-5775 Civil Term J'w. MUMPER CONSTRUCTION, INC., HEMPT REAL TV, LTD., JAMES MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP, Defendants IN RE: DEFENDANT SILVER SPRING TOWNSHIP'S PRELIMINARY OBJECTIONS TO PLAINTIF'=S' COMPLAINT Before HOFFER. P.J., OLER. J. and GUIDO. J. ORDER 0 COURT 'J.(X)): AND NOW, this ~ day of ~ after oral argument and upon consideration of the Preliminary Objections Uefendant Silver Spring Township and the Briefs submitted by both parties, it is hereby ORDERED that the Objections in the nature of a Demurrer and Ifor failure to conform to Pa.R.C.P. 1095(3} are SUSTAINED. Count IV of the Plaintiffs' Complaint is DISMISSED. (See Germantown Business Assoc. v. City of Philadelphia, 534 A.2d 553 (Pa. Commw. Ct., 19S7.) (finding that where a city is given the authority to enforce its own regulations, the duty to enforce is discretionary, not mandatory, and therefore when mandamus would deprive the city of its discretion of when }, S~; 'S H J r U f,'.\lr ~~liGZ '1 and how to enforce mandamus, it cannot be llranted.; Hanson v. Lower Frederick Township Board of Supervisors, 667 A.2d 1221 (Pa. Commw. Ct. 1995) (holding that mandamus is inappropriate as a means to enforce a zoning ordinance against an alleged violator where the applicable statute provides for an adequate civil remedy directly against the alleged violator)). Dean F. Piermattei, Esquire Sherill T. Moyer, Esquire Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5737 Attorneys for Plaintiffs David E. Lehman, Esquire Lawrence R. Wieder, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street, ]'h FI. P.O. Box 1166 Harrisburg, PA 17108-1166 (717)232-8000 Attorneys for Defendant, J.W. Mumper Construction, Inc., James W. Mumper and Hempt Realty, LTD. By the Court, .J. Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, PA 17036 (717)903 1268 Attornl3Y for Defendant, Silver Spring Township Charles O. Beckley, II, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717)2;32-7691 Attorney for Defendants, Jay Simons and Kathleen Simons A'~ ,~ 1_ JI.6! ~, Dean F. Piermattei Attorney J.D. No. 53847 Sherill T. Moyer Attorney J.D. No. 15488 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Plaintiffs DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER, PETER KHOURI and SONIA KHOURI, Plaintiffs : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION : NO. 03-5775 Civil Term J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP, Defendants PLAINTIFFS' MOTION FOR FINAL ORDER PURSUANT TO Pa.R.A.P. 341(c) NOW COME the Plaintiffs, Derek Hathaway, Margaret Hathaway, Martin Singer, Malini Singer, David Becker, Peter Khouri and Sonia Khouri, by and through their attorneys, Rhoads & Sinon LLP, and file the following Motion for Final Order Pursuant to Pa.R.A.P. 341(c), and state as follows: 1. Plaintiffs filed a Complaint in the Cumberland County Court of Common Pleas on November 3, 2003, against Defendants J.W. Mumper Construction, Inc., Hempt Realty, Ltd., James 549381.1 W. Mumper, Jr., Jay E. Simons, and Kathleen C. Simons (collectively referred to hereafter as "Private Defendants"), and Silver Spring Township. 2. The Complaint alleges, inter alia, that the actions of the Private Defendants, in developing a residential subdivision known as Hillside Farms, have previously and continue to increase, divert, collect, concentrate and discharge storm water run-off onto the Plaintiffs' residential properties, known as The Northwatch Lane Properties. (Complaint, '11'1114,16,19,26). 3. Plaintiffs six-count Complaint raises the following claims against the Private Defendants: Count I - Injunctive Relief; Count 11- Pennsylvania Storm Water Management Act, 32 P.S. 9680.1 et seq. ("SWMA"); Count III - Trespass; Count IV - Private Nuisance; and Count V - Negligence Per Se. 4. Count VI of Plaintiffs' Complaint - Mandamus - is only raised against Silver Spring Township (hereinafter "the Township"). 5. In their Mandamus count, Plaintiffs requested that the Court order the Township to apply its local ordinances regarding storm water run-off and the SWMA. 6. On December 15, 2003, the Township filed preliminary objections to the Plaintiffs' Complaint, alleging that Plaintiffs' Count VI (Mandamus) failed to conform to the law. 7. On September 17, 2004, Plaintiffs filed a brief in opposition to the preliminary objections, arguing that Plaintiffs had properly pleaded that the Township had failed to either apply or enforce the provisions of its own Subdivision and Land Development Ordinances and the SWMA. - 2 - 8. By its Order dated January 20, 2005, this Court sustained the preliminary objection of the Township and dismissed Count VI of Plaintiffs' Complaint (Mandamus).l (A true and correct copy of this Court's January 20,2005 Order is attached hereto as "Exhibit A".) 9. Pursuant to Pa.R.A.P. 341(c), upon express determination that an immediate appeal would facilitate resolution of the entire case, where multiple parties are involved, a trial court may enter a final order as to one or more but fewer than all of the claims. R.A. ex. reI. N.A. v. First Church of Christ, 748 A.2d 692,694, n.1 (Pa. Super. 2000). 10. In determining whether an immediate appeal would facilitate resolution of the entire case, the trial court should consider, at a minimum, the following factors: (1) whether there is a significant relationship between the adjudicated and unadjudicated claims; (2) whether there is a possibility that an appeal would be mooted by further developments; (3) whether there is a possibility that the trial court will consider the issue a second time; and (4) whether an immediate appeal will enhance the prospects of settlement. Pullman Power Products of Canada. Ltd. v. Basic Engineers. Inc., 713 A.2d 1169, 1173 (Pa. Super. 1998). 11. Additionally, the trial court should consider whether there exists a significant risk of the necessity for costly re-litigation if the later appellate decision may result in a remand. F.D.P. v. Ferrara, 804 A.2d 1221, 1228 n.6 (Pa. Super. 2002). 12. No one factor is controlling, and courts have certified Orders as "final" based upon a showing of less than all of the foregoing factors. See id. (concluding that the trial court's ] Although the trial court's Order reads, "Count IV of Plaintiffs' Complaint is DISMISSED," the Order is directed towards Plaintiffs' claim for Mandamus, which is Count VI in Plaintiffs' Complaint, - 3 - certification of order as "final" was proper based only on the factors that an immediate appeal would enhance settlement prospects, and the likelihood of re-litigation). 13. Where there exists a significant relationship between the adjudicated and unadjudicated claims, the order should be certified as "final". Wisniski v. Brown Ins. Co. ofPA, 852 A.2d 1206, 1210 (Pa. Super. 2004) (finding trial court's certification of order as "final" was proper where there existed a significant relationship between the adjudicated and unadjudicated claims). 14. In the instant matter, the actions against the Township is significantly related to the actions against the Private Defendants. All the claims arise from the same operative fact that storm water run-off is damaging and adversely impacting Plaintiffs' residential properties, in violation of the Township's ordinances. Furthermore, Plaintiffs filed a claim under the SWMA against the Private Defendants, and also seek to enforce the SWMA against the Township. 15. The failure to entertain an immediate appeal will result in an injustice which a later appeal cannot correct. Wisniski, 852 A.2d at 121, n.!. If an immediate appeal is not taken, then Plaintiffs' can only proceed in this matter against the Private Defendants. At the end of that litigation, Plaintiffs' can then appeal this Court's Order sustaining the preliminary objection of the Township. If the appellate court then reverses the trial Court's Order, Plaintiff would then have to try the same case a second time, which would result in costly re-litigation. 16. Also, if Plaintiffs succeed in their action(s) against the Private Defendants, then an appeal of this Court's Order may be moot. Indeed, if Plaintiffs succeed against the Private Defendants, and the Private Defendants are ordered to discontinue channeling storm water run-off - 4- onto Plaintiffs' residential properties, Plaintiffs' cause of action against the Township would be nullified. 17. Pursuant to Pa.R.A.P. 341(c)(I), the trial court is required to act on an application for a determination of finality within thirty (30) days from the date of issuing the interlocutory Order. The Order in this case was issued on January 20,2005. 18. Pursuant to Cumberland Co. Local Rule 206-2(a), the judges who have ruled upon the preliminary objections were President Judge Hoffer, and Judges Oler and Guido. 19. Pursuant to Cumberland Co. Local Rule 206-2(c), counsel for the Simons concurs. Counsel for all other Private Defendants and the Township do not concur in the foregoing motion. WHEREFORE, Plaintiffs respectfully request this Honorable Court certify its January.20, 2005 Order sustaining the Township's demurrer as a FINAL ORDER. Respectfully submitted, By: an . Piermattei, Esquire Sherill T. Moyer, Esquire One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Plaintiffs - 5 - ./ .....:-.-~ DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALlNI SINGER DAVID BECKER, PETER KHOURI And SONIA KHOURI Plaintiffs : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : CIVIL ACTION : NO. 03-5775 Civil Term J.W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP, Defendants IN RE: DEFENDANT SILVER SPRING TOWNSHIP'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Before HOFFER. P.J.. OLEA. J. and GUIDO, J. ORDER 0 COURT AND NOW, this ~ day of UXJ~ , after oral argument and upon consideration of the Preliminary Objections efendant Silver Spring Township and the Briefs submitted by both parties, it is hereby ORDERED that the Objections in the nature of a Demurrer and for failure to conform to Pa.R.C.P. 1095(3) are SUSTAINED. Count IV of the Plaintiffs' Complaint is DISMISSED. (See Germantown Business Assoc. v. City of Philadelphia, 534 A.2d 553 (Pa. Commw. Ct., 1987.) (finding that where a city is given the authority to enforce its own regulations, the duty to enforce is discretionary, not mandatory, and therefore when mandamus would deprive the city of its discretion of when .1--;- ... and how to enforce mandamus, it cannot be granted.; Hanson v. Lower Frederick Township Board of Supervisors, 667 A.2d 1221 (Pa. Commw. Ct. 1995) (holding that mandamus is inappropriate as a means to enforce a zoning ordinance against an alleged violator where the applicable statute provides for . an adequate civil remedy directly against the alleged violator)). Dean F. Piermattei, Esquire Sherill T. Moyer, Esquire Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5737 Attorneys for Plaintiffs David E. Lehman, Esquire Lawrence R. Wieder, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street, ih FI. P.O. Box 1166 Harrisburg, PA 17108-1166 (717)232-8000 Attorneys for Defendant, J.W. Mumper Construction, Inc., James W. Mumper and Hempt Realty, LTD. By the Court, / Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, PA 17036 (717)9031268 Attorney for Defendant, Silver Spring Township Charles O. Beckley, II, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 (717)232-7691 Attorney for Defendants, Jay Simons and Kathleen Simons TRUE COpy fROM RECORU In re;timor.y w.'lGre.?f, I tlare ltlliD s;;1 1I1'1l1ao:l and tr.e ~ of said ~A:'~;lsl:l, Pa. l:hiS /q;)~~ ~~~:';;:l!.,;;: I'rothOIlOlarY CERTIFICATE OF SERVICE I hereby certifY that on this If) '{.PI day of February, 2005, a true and correct copy of the foregoing Plaintiffs Motion for Final Order was served on all Defendants via first class U.S. Mail: Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, PA 17036 Counsel for Silver Spring Township David E. Lehman, Esquire McNees Wallace & Nurick LLC 100 Pine Street, 7th Floor P.O. Box 1166 Harrisburg, PA 17108-1166 Counsel for Developers Charles O. Beckley, 11, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108-1998 Counsel for Simons .'1 -< () ~-'h -.-, 11"'1 .-4 ....'.- I?i t._'""" C) -r~ r:~ 1',) _J DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER, PETER KHOURI and SONIA KHOURI, Plaintiffs v. J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP, Defendants FEB 1 0 2001 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAKD COUNTY, PENNSYLVANIA : CIVIL ACTION : NO. 03-5775 Civil Term ORDER ~ '" PU;,JI-t'FF ~ Mdt-t'()Il) AND NOW, on this, the I day of February, 2005, '<iF/' _rVU li.v Lud;uoo Vt_) El>I- p;toH..L 0 ~tL ,,,"S,c.eltNt' +u c. ~.A.{J. ~.'tS: tL~... evu.,d tL_ul u.... :uuu...4~...1.., "Pp..,.J yY~ll fJl.....]~t"l""' H.,",...,lul:\'.1.l1 "Vi 1.11(; eJ.!LUt: case, It IS hereny ,t.? ']) ENI 6 J) ORBI!ltl!B dJ.al. Ll.lI;;; Ordvl VI Jd.1lUC:UY ~~, looJ ~., "''-'H~ft,-,d a;, a FIHAL 8:R:HEll ~ ~s o?-:\ J. i -.......-, U :-j >;) '7 !''^' ('+ , Dean F. Piermattei Attorney I.D, No. 53847 Sherill T, Moyer Attorney J.D. No. 15488 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneysfor Plaintiffs DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER, PETER KHOURI and SONIA KHOURI, Plaintiffs v. J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 03-5775 PRAECIPE FOR WITHDRA WAL AND DISCONTINUANCE TO THE PROTHONOTARY: Please mark the within matter "withdrawn and discontinued", with prejudice. 603221,] Respectfully submitted, . ~ By: De . Piermattei, Esq re Sherill T. Moyer, Esquire One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 --Attorneys for Plaintiffs DEREK HATHAWAY, MARGARET HATHAWAY, MARTIN SINGER, MALINI SINGER, DAVID BECKER, PETER KHOURI and SONIA KHOURI, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION : NO. 03-5775 J. W. MUMPER CONSTRUCTION, INC., HEMPT REALTY, LTD., JAMES W. MUMPER, JR., JAY E. SIMONS, KATHLEEN C. SIMONS and SILVER SPRING TOWNSHIP, Defendants CERTIFICATE OF SERVICE I hereby certify that on the i.2!!. day of April, 2006, the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Steven A. Stine, Esquire 23 Waverly Drive Hummelstown, PA 17036 Counsel for Silver Spring Township David E. Lehman, Esquire McNees Wallace & Nurick LLC 100 Pine Street, 7/h Floor P.O. Box 1166 Harrisburg, PA 17108-1166 Counsel for Developers Charles O. Beckley, II, Esquire Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PAl 71 08-1998 Counsel for Simons Sherill T. Moye, qUire Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs