HomeMy WebLinkAbout03-5935SSGC, INC. d/b/a SILVER SPRING IN THE COURT OF COMMON PLEAS,
GOLF COURSE, CUMBERLAND COUNTY
Plaintiff
V. NO.63-SW EQUITY
SAMPLE BRIDGE ASSOCIATES,
Defendant
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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator, 4' Floor
Cumberland County Courthouse
1 Courthouse Square
Carlisle PA 17013
Telephone: (717) 240-6200
NOTICIA
Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por aboado
y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su
persona. Sea avisado que si usted no se defiende, la cone tomara medidas y puede entrar una orden
contra usted sin previo aviso o notificacion y per cualquier quej a o alivio que es pedido en la peticion
de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Court Administrator, 4" Floor
Cumberland County Courthouse
1 Courthouse Square
Carlisle PA 17013
Telephone: (717) 240-6200
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
200 N. 3`d Street, 18'h Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSGC, Inc. d/b/a Silver Spring Golf
Course
Dated: November 12, 2003
SSGC, INC. d/b/a SILVER SPRING : IN THE COURT OF COMMON PLEAS
GOLF COURSE, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. : NO.Q3-S93CEQUITY
SAMPLE BRIDGE ASSOCIATES,
Defendant
COMPLAINT
AND NOW comes the Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, byand through
its counsel, Nauman, Smith, Shissler & Hall, LLP, and complains as follows:
1. Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, is a Pennsylvania corporation
whose principal place of business is located at 136 Sample Bridge Road, Mechanicsburg,
Cumberland County, Pennsylvania.
2. Defendant, Sample Bridge Associates, is a limited partnership with its principal place
of business located at 6570 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania.
3. Plaintiff is, and at all times relevant hereto, was the sole owner in fee and in sole
possession of a certain lot situated in Cumberland County, Pennsylvania, and is described as follows:
BEGINNING at a point at the western end of Sample Bridge, said
point also being in the center line of Township Road T-596 (Sample
Bridge Road); thence along the center line of said Township Road T-
596 the following three courses and distances: 1) North 52'06' West
a distance of249.28 feet, 2) North 24° 50' West a distance of 1773.50
feet, 3) North 07° 22' West a distance of 821 feet to a point on line of
other lands of the Grantor herein; thence along the line of other lands
of the Grantor herein, the following five courses and distances: 1)
North 44° 13' East a distance of 423.30 feet, 2) South 89° 57' East a
distance of 430 feet, 3) North 030 13' East a distance of 1335 feet, 4)
North 29° 23' East a distance of 615 feet, 5) North 87° 23' 30" East
a distance of 598.14 feet to a point in or along the Conodoguinet
Creek; thence in or along the Conodoguinet Creek the following
eleven courses and distances: 1) South 32° 18' West a distance of
446.51 feet, 2) South 0913 V West a distance of 487.82 feet, 3) South
010 33' East a distance of 737.78 feet, 4) South 02° 01' West a
distance; of 866.49 feet, 5) South 03° 20' East a distance of 411.86
feet, 6) South 10° 07' East a distance of 564.14 feet, 7) South 11 ° 52'
30" West a distance of 238.97 feet, 8) South 23° 47' 30" West a
distance; of 422.40 feet, 9) South 14° 57' West a distance of 508.52
feet, 10'1 South 14° 12' West a distance of 139.05 feet, 11) South 01'
23' East a distance of 130.26 feet to a point on Sample Bridge, said
point being in the center line of Township Road T-596, thence along
the center line of T-596 North 56° 44' West a distance of 55 feet to
a point, the place of BEGINNING
CONTAINING 90.63 acres.
BEING part of the same premises which Summit Corporation by its
deed dated October 16, 1963, recorded in the Office of the Recorder
of Deeds in and for Cumberland County, Pennsylvania, in Deed Book
A-21, Page 107, granted and conveyed unto Silver Spring Inc.,
Grantor herein.
4. Plaintiff is in the business of operating a recreational golf course open to the public.
5. Defendant is a developer that has developed and constructed a residential subdivision
named "The Peninsula". Phase III of the Peninsula is located on lands west of the Plaintiff's lands
and burdening the Plaintiff's land as described above.
6. The elevation of the Peninsula Phase III is higher than the elevation of the Plaintiff's
property as described above, and water has always naturally drained from the Defendant's property
onto that of the Plaintiff.
7. In the course of developing the Peninsula Phase III, Defendant has fundamentally
altered the nature and character of the land converting a rural and undeveloped field into a residential
development. Defendant has changed the landscape and constructed a system of roadways in the
Peninsula. In addition, Defendant has constructed large residential units, garages, impervious
2
driveways and diverted the rainwater into stormwater collection systems which are ultimately
directed and discharged upon the lands of the Plaintiff as described in Paragraph 3 above.
8. The system of highways contains impervious covering which gathers storm water
from the entire development and channels it into three artificial structures in the Pennisula.
9. The storm water is then funneled onto Plaintiff's property at three (3) different
locations, in greater volume and at higher velocity than existed prior to the construction of the
Pennisula.
10. The storm water unnaturally forced upon Plaintiff's property by Defendant has
washed, and continues to wash, limestone ballast, rocks, trees, branches, cans, bottles and other
debris onto the property of the Plaintiff.
11. The storm water unnaturally forced uponPlaintiff'sproperty byDefendant has caused
and continues to cause deep erosion to Plaintiff's property.
12. The storm water unnaturally forced upon Plaintiff's property by Defendant has caused
and will continue to cause the siltation of non-navigable water courses on Plaintiff's property.
COUNTI
INJUNCTIVE RELIEF
13. Paragraphs 1 through 12 above are incorporated herein by reference as offull restated.
14. Plaintiff has on divers occasions brought the above-described circumstances to the
attention of the Defendant and its representatives; however, Defendant has indicated by its actions
that it does not intend to refrain from its wrongful and illegal discharge of storm waters upon the
lands of the Plaintiff as described above.
3
15. On numerous occasions, particularly after storms or other wet weather events,
Plaintiff has observed debris and other materials carried by streams from the Defendants Peninsula
development and ultimately washed upon his property causing erosion to his soils, damage to the
golf course fairway and other plantings and siltation of non-navigable water course.
16. It is believed and therefore averred that the damages suffered by the Plaintiff will
continue into the future unless the Defendant's conduct is abated by this Honorable Court.
17. Although it is possible for employees and contractors of the Plaintiff to temporarily
rectify the damages caused by the Defendant, this procedure can cost thousands of dollars per
incident, disrupt operations of the Plaintiff, damage the aesthetic appearance of the golf course and
inconvenience the golf course patrons.
18. On or about January26, 1995, Defendant filed an Application for Land Development
and Subdivision Approval for the Peninsula, which was subsequently approved by Silver Spring
Township, Cumberland County, Pennsylvania. A copy of said Application is attached hereto and
marked as Exhibit "A".
19. In the application process, Defendant represented that its land development and
subdivision plan would not alter or increase the flow of storm water onto the premises of the
Plaintiff.
20. Contrary to these representations contained in Exhibit "A", Defendant has increased
both the amount and character of the storm water.
21. In the Spring of 2002, Defendant applied for and received approval for a change to
its previous plan for Phase III of the Peninsula Subdivision effecting Lots 15 and 16.
4
22. This new plan called for the construction of an underground storm water collection
facility and the installation of a rock lined swale on steep slope (up to 70 degrees) on land adjacent
to the Plaintiff's.
23. During the approval hearing, Defendant represented that:
a. few trees would be removed;
b. the area of disturbance on the steep slopes would be limited to 20 feet in
width; and,
c. there would not be a need for construction equipment to enter onto the steep
slopes.
24. Contrary to these assertions, however, Defendant does intend to use heavy
construction equipment on the steep slope. It also anticipates the construction of benches and trails
to accommodate this equipment and the removal of a large number of trees on the steep slopes.
25. The installation of the rock lined swale envisioned in Phase III will require a
disturbance area that greatly exceeds the 20 feet presented to the Township by the Defendant.
26. Even if the revised subdivision could be built, the storm water discharge would
nevertheless exceed pre-development levels by a volume of more than two to one.
27. Proceeding with the development of Phase III will irreparably harm the Plaintiff.
28. Plaintiff has no adequate remedy at law.
29. Plaintiff has suffered and will continue to suffer irreparable harm if Defendant's
wrongful and tortuous conduct as described above is permitted to continue. The ongoing costs of
Plaintiff repairing damages caused by Defendant together with the loss of the aesthetic value of the
5
property and lost revenues from the disruption of business operations is not capable of precise
calculation.
30. In any event, Defendants wrongful and tortious conduct is continuing in nature in that
every storm or other wet water event results in an erosion of the golf course and a new discharge of
debris and other material onto the property of the Plaintiff.
31. Due to the topography of the tracts of the Plaintiff and Defendant, it is physically not
possible to erect a barrier on Plaintiff's and Defendant's property line that would prevent damage
to Plaintiff's property.
32. Plaintiff has no adequate remedy at law, and its interest and those of the public can
only be protected by requiring Defendant to cease interference with Defendant's property.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, prays that this Court:
A. Preliminarily and permanently enjoin Defendant from interfering with its property
right;
B. Preliminarily and permanently enjoin Defendant from discharging storm water in
excess of that which occurred naturally prior to the construction of the Peninsula
development;
C. Require Defendant to submit a Subdivision Plan for Phase III that complies with all
local ordinances and protects Plaintiff's property rights; and,
D. Grant Plaintiff such other and further relief as this Court deems necessary and
appropriate.
COUNT 11
6
DAMAGES - STORM WATER MANAGEMENT ACT
32 P.S. §680.1 et seq. and Silver Spring Township
Storm Water Management Ordinance of 1995
33. Paragraphs 1 through 32 above are incorporated herein by reference as if fully
restated.
34. This is a claim for damages pursuant to the Storm Water Management Act
("SWMA' ), 32 P.S. §680.1 et seq., and the Silver Spring Township Storm Water Management
Ordinance of 1995 which Plaintiff has suffered by reason of Defendant's repeated, unwarranted and
illegal interference with its property rights as described above.
35. Beginning in 1996 and continuing until the present, Defendant, with force and arms,
and without Plaintiff's permission, caused and continues to cause Plaintiff's lot to be entered,
disturbed, injured and spoiled the soil, grass and plantings then and there growing.
36. Defendant's trespass has on multiple occasions damaged the golf course through
erosion and by depositing stone, rocks and other debris on the Plaintiff's lot causing both physical
and aesthetic damage to Plaintiff's property.
37. Defendant's trespass has also caused damage to a non-navigable water course located
on Plaintiff's property.
38. As a result of the aforesaid, Defendant has caused damage to Plaintiff's property in
an amount to be determined by the Court.
39. As a result of the aforesaid, Defendant has caused Plaintiff to lose business
opportunities and customers.
7
40. Defendant's actions violate the Storm WaterManagement Act, 32 P.S. §680.1 etseq..
Pursuant to 32 P.S. §680.15 and the Silver Spring Township Storm Water Management Ordinace,
Plaintiff is entitled to damages from Defendant.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs.
COUNT III
DAMAGES - COMMON LAW TRESPASS
41. Paragraphs 1 through 40 above are incorporated herein by reference as if fully
restated.
42. Defendant's actions constitute common law trespass
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs.
COUNT IV
DAMAGES - PRIVATE NUISANCE
43. Paragraphs 1 through 34 above are incorporated herein by reference as if fully
restated.
44. Defendant's actions constitute a private nuisance.
8
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs.
NAUMAN, SMITH, SHISSLER & HALL, LLP
C
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
200 N. 3`d Street, 18" Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSGC, Inc. d/b/a Silver Spring Golf
Course
Dated: November I l , 2003
9
VERIFICATION
I, Ted W. Ansel, on behalf of SSGC, Inc. d/b/a Silver Spring Golf Course, make the
following statements subject to the penalties of 18 Pa.C. S. § 4904, relating to unsworn falsifications
to authority, and do hereby state that the facts set forth in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief.
?'R.d_ W - 0".k
Ted W. Ansel
Dated: November__, 2003
10
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Amended Complaint was served by United States First Class Mail, postage pre-paid, upon those
person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market. Square, 12" Floor
P. O. Box 1146
Harrisburg PA 17108-1146
J ID . Hagstromeg ssistant to
eE. Boyle, Esquire
Dated: November J?, 2003
11
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SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff,
V.
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY
NO.EQUITY
SAMPLE BRIDGE ASSOCIATES, rr
Defendant.
PETITION FOR PRELIMINARY INJUNCTION `
AND NOW comes the Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, and ,
-? ca
through his counsel, Nauman, Smith, Shissler & Hall, LLP, pursuant to Pennsylvania Rule of
Civil Procedure 1531, and respectfully requests this Honorable Court issue a preliminary
injunction without a hearing, and in support thereof avers as follows:
1. Plaintiff, SSGC, Inc., has filed a Verified Complaint in Equit,
hereto as Exhibit "A".
2. In its Complaint, SSCG asks this Court to enjoin ongoing tresp
S WM Ordinance violations by Defendant, SBA.
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171
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3. These ongoing violations stem from SBA's development of the Peninsula, Phase III
development in Silver Spring Township, Cumberland County, Pennsylvania.
4. As the Verified Complaint indicates, SBA obtained subdivision approval for Phase
III based upon an Application that was not accurate. Specifically, the Application indicated that
storm water would be discharged from the development into a pond on property owned by the
plaintiff through an easement.
In fact, there was never an easement for the Defendant to use.
SSGC, INC., U SILVER IN THE COURT OF COMMON PLEAS OF
SPRING GOLF COURSE, •
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES, :
Defendant NO. 03-5935 EQUITY
ORDER OF COURT
AND NOW, this 12th day of November, 2003, by
agreement of the parties, the temporary injunction issued today's
date is dissolved. Hearing on the underl,ling complaint and
request for permanent injunction is scheduled for Wednesday,
January 7, 2004, commencing at 8:30 a.m. We will continue into
the afternoon of January 8, 2004, if necessary.
By the Court,
Edward E. Guido, J.
,tennis E. Boyle, Esquire
For Plaintiff
v-?imothy J. Nieman, Esquire
Jack F. Hurley, Jr., Esquire
For Defendant Rxs
srs I'13"?3
MNVAUA6'jj\IIN3d
Almrr:: nN !BG end
NOV 1 2 2003 V
SSGC, INC. d/b/a SILVER SPRING : IN THE COURT OF COMMON PLEAS
GOLF COURSE, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. : NO.62-S93S EQUITY
SAMPLE BRIDGE ASSOCIATES,
Defendant
RULE
AND NOW, this Id -t? day of November, 2003, upon expedited consideration
of Silver Spring Golf Course, Inc.'s Petition for Preliminary Injunction, Brief in Support and the
attached exhibits, and the affidavit of plaintiff's counsel regarding attempted notice to the
defendants, and the Court having determined (1) that the plaintiff will suffer irreparable harm if
the requested relief is not granted immediately without notice and a hearing; (2) that plaintiff
does not have an adequate remedy at law; and, (3) that greater injury would be inflicted upon
plaintiff by a denial of temporary injunctive relief than will be inflicted upon defendants by the
granting of such relief.
It is ORDERED that as of the date of this Order, the Defendant, Sample Bridge
Associates, shall be enjoined from beginning construction or further development of the Phase III
area, and immediately cease any and all efforts related thereto.
A rule is hereby entered upon the Respondent, Sample Bridge Associates, to show cause
why this injunction should not be continued.
A hearing pertaining to the continuance of this preliminary injunction shall be held on
C Uvt 3 2003, beginning at ?• O . in. in Courtroom # of the
Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania, to consider
said petition pursuant to Pa. R. C. P. 1531(d).
This order is conditioned upon plaintiff s filing an approved bond in the amount of
$ L
BY O
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SSGC, INC. d/b/a SILVER SPRING IN THE COURT OF COMMON PLEAS,
GOLF COURSE, CUMBERLAND COUNTS'
Plaintiff
V. NO. 03-5935 EQUITY
SAMPLE BRIDGE ASSOCIATES, CIVIL ACTION - EQUITY
Defendant
ACCEPTANCE OF SERVICE
I, Timothy J. Neiman, Esquire, herebyaccept service ofthe Plaintiff, SSGC, Inc. d/b/a Silver
Spring Golf Courses' Complaint, Petition for Preliminary Injunction and Brief in Support of Petition
for Preliminary Injunction on behalf of the Defendant, Sample Bridge Associates, and hereby certify
that I am authorized to do so.
Timothy J. N iman, Esquire
Rhoads & Sinon LLP
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
Counsel for: Sample Bridge Associates
Date: 12,1110-3
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SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-5935 E42UITY
JOINT MOTION FOR CONTINUANCE
AND NOW comes SSGC, Inc., through its Counsel Nauman, Smith, Shissler and Hall,
LLP and Sample Bridge Associates, through its counsel, Rhoads and Sinon, and respectfully
requests this Court continue the Equity Trial currently scheduled for January 7 and 8, 2004, and
in support thereof avers as follows:
Although the parties to this action have exchanged extensive discovery, counsel
for Plaintiff has only recently become aware of the existence of extensive documentation relevant
to prior defense discovery requests. Plaintiff's counsel is in the process of obtaining, reviewing
and copying this documentation and providing it to counsel for the defendant.
2. Based upon this information, it is believed that additional depositions will need to
be taken by one and perhaps both parties.
Plaintiff will be filing a motion to amend its Complaint to which the defense does
not concur. Therefore, it may be necessary to hold additional pre-trial proceedings in this case.
4. Recent wet weather events have, in the opinion of the Plaintiff, created additional
damage which Plaintiff will not be able to calculate and quantify prior to January 7, 2004. The
Defendant denies this contention.
5. Both parties to the action concur in this request for continuance.
WHEREFORE, SSGC, Inc., and Sample Bridge Associates respectfully request that the
trial currently scheduled for January land 8, 2004 be continued.
Respectfully submitted,
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3`d Street, 18`s Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSGC Inc. d/b/a Silver Spring Golf
Course
Dated: December if, 2003
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Amended Complaint was served by United States First Class Mail, postage pre-paid, upon those
person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12`h Floor
P. O. Box 1146
Harrisburg PA 17108-1146
D. H&gstrorb; LWal Assistant to
E. Boyle, Esq re
Dated: December 102003
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SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 03-5935 EQUITY
MOTION FOR LEAVE OF COURT
TO AMEND COMPLAINT
AND NOW comes Plaintiff SSGC, Inc., through its Counsel Nauman, Smith, Shissler and
Hall, LLP, and respectfully requests this Court grant leave to amend its Complaint in Equity pursuant
to Pa. R.C.P. 1033, to add factual allegations supporting its request for punitive damages and in
support thereof avers as follows:
On November 12, 2003, Plaintiff filed a Complaint in Equity requesting injunctive
relief and damages for Defendant's violation of the Storm Water Management Act, ("Act") 32 P.S.
§§680.1 et seq., common law trespass and private nuisance. A true and correct copy of Plaintiff's
Complaint in Equity is attached as Exhibit `A' and is incorporated herein by reference.
2. Plaintiff's counsel has become aware, through investigation, in conducting
discovery in this action, and the corresponding action at law, (Civ. No. 02-692, SSGC, Inc. v.
Sample Bridge Associates) that Defendant has engaged in conduct that may be characterized as
outrageous and in reckless disregard of Plaintiff's rights as an adjoining landowner.
3. To date, Defendant has not filed a responsive pleading to the Complaint in Equity.
4. Since the filing of the initial Complaint, Defendants have engaged in conduct
which has further damaged Plaintiff's property.
5. Plaintiff wishes to amend its Complaint in Equity in order to include factual
averments regarding the outrageous nature of which support a claim for punitive damages. A
copy of Plaintiff's proposed Amended Complaint in Equity is attached as Exhibit `B.'
6. The proposed Amended Complaint in Equity does not alter the theory of the case,
or add causes of action as the amendment is limited to the factual basis for punitive damages.
7. Amendment of Plaintiff's Complaint in Equity would not unduly delay the
proceedings on this case.
An amendment to aver facts supporting a claim for punitive damages alters only
the type of recovery sought, and does not allege a new cause of action, which could alter
Defendant's theory of defense.
10. Defendant Sample Bridge Associates will not be prejudiced or surprised by the
amendment because it has not filed an Answer, and as Plaintiff provided Defendant notice of its
intention to amend its complaint to include grounds for recovering punitive damages.
11. The statute of limitations does not serve as a bar to this amendment because
Defendant's injury to Plaintiff's property is of a continuing nature.
12. Defendant, Sample Bridge Associate, has been advised of this request to amend
the Complaint and does not concur in the amendment.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, respectfully
requests this Honorable Court to grant it leave to amend its Complaint in Equity to include
factual allegations regarding Defendant's conduct that support Plaintiff's request for punitive
damages.
NAUMAN, SMITH, SHISSLER & HALL, LLP
C 4,
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3'a Street, 18'hFloor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For. SSGC, Inc. d/b/a Silver Spring Golf
Dated: December IA003 Course
SSGC, INC. d/b/a SILVER SPRING IN THE COURT OF COMMON PLEAS,
GOLF COURSE, CUMBERLAND COUNTY
Plaintiff
V. NO.Q ISW EQUITY
SAMPLE BRIDGE ASSOCIATES,
Defendant
r_. .
NOTICE
ti
You have been sued in Court. If you wish to defend against the claims set foa in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and a judgment may be entered against you by
the Court without further notice for any money claimed in the Complaint or for any other claim
or relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator, 4`s Floor
Cumberland County Courthouse
1 Courthouse Square
Carlisle PA 17013
Telephone: (717) 240-6200
NOTICIA
Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar tma apariencia escrita o en persona o por aboado
y archivar en la corte en forma escrita sus defensas o sus obj eciones a las demandas en contra de su
persona. Sea avisado que si usted no se defiende, 1a cone tomara medidas y puede entrar una orden
contra usted sin previo aviso o notificacion ypor cualquier queja o alivio que es pedido en lapeticion
de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IIVIMEDIATAiVIENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL D1NERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA C- YA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Court Administrator, 4`h Floor
Cumberland County Courthouse
1 Courthouse Square
Carlisle PA 17013
Telephone: (717) 240-6200
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
200 N. 3`d Street, 18`h Floor
P. 0. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSGC, Ine. d/b/a Silver Spring Golf
Course
Dated: November 11, 2003
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
COMPLAINT
EQUITY
AND NOW comes the Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, by and through
its counsel, Nauman, Smith, Shissler & Hall, LLP, and complains as follows:
Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, is a Pennsylvania corporation
whose principal place of business is located at 136 Sample Bridge Road, Mechanicsburg,
Cumberland County, Pennsylvania.
Defendant, Sample Bridge Associates, is a limited partnership with its principal place
of business located at 6570 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania.
Plaintiff is, and at all times relevant hereto, was the sole owner in fee and in sole
possession of a certain lot situated in Cumberland County, Pennsylvania, and is described as follows:
BEGINNING at a point at the western end of Sample Bridge, said
point also being in the center line of Township Road T-596 (Sample
Bridge Road); thence along the center line of said Township Road T-
596 the following three courses and distances: 1) North 52' 06' West
a distance of 249.28 feet, 2) North 24° 50' West a distance of 1773.50
feet, 3) North 07° 22' West a distance of 821 feet to a point on line of
other lands of the Grantor herein; thence along the line of other lands
of the Grantor herein, the following five courses and distances: 1)
North 44° 13' East a distance of 423.30 feet, 2) South 89° 57' East a
distance of 430 feet, 3) North 03° 13' East a distance of 1335 feet, 4)
North 29° 23' East a distance of 615 feet, 5) North 87° 23' 30" East
a distance of 598.14 feet to a point in or along the Conodoguinet
Creek; thence in or along the Conodoguinet Creek the following
eleven courses and distances: 1) South 32° 18' West a distance of
446.51 feet, 2) South 09° 31' West a distance of 487.82 feet, 3) South
01° 33' East a distance of 737.78 feet, 4) South 02° 01' West a
distance of 866.49 feet, 5) South 03° 20' East a distance of 411.86
feet, 6) South 10° 07' East a distance of 564.14 feet, 7) South 11 ° 52'
30" West a distance of 238.97 feet, 8) South 23° 47' 30" West a
distance of 422.40 feet, 9) South 14° 57' West a distance of 508.52
feet, 10) South 14° 12' West a distance of 139.05 feet, 11) South 01 °
23' East a distance of 130.26 feet to a point on Sample Bridge, said
point being in the center line of Township Road T-596, thence along
the center line of T-596 North 56° 44' West a distance of 55 feet to
a point, the place of BEGINNING
CONTAINING 90.63 acres.
BEING part of the same premises which Summit Corporation by its
deed dated October 16, 1963, recorded in the Office of the Recorder
of Deeds in and for Cumberland County, Pennsylvania, in DeedBook
A-21, Page 107, granted and conveyed unto Silver Spring Inc.,
Grantor herein.
4. Plaintiff is in the business of operating a recreational golf course open to the public.
5. Defendant is a developer that has developed and constructed a residential subdivision
named "The Peninsula". Phase III of the Peninsula is located on lands west of the Plaintiff's lands
and burdening the Plaintiff s land as described above.
6. The elevation of the Peninsula Phase III is higher than the elevation of the Plaintiff s
property as described above, and water has always naturally drained from the Defendant's property
onto that of the Plaintiff.
hr the course of developing the Peninsula Phase III, Defendant has fundamentally
altered the nature and character of the land converting a rural and undeveloped field into a residential
development. Defendant has changed the landscape and constructed a system of roadways in the
Peninsula. In addition, Defendant has constricted large residential units, garages, impervious
driveways and diverted the rainwater into stormwater collection systems which are ultimately
directed and discharged upon the lands of the Plaintiff as described in Paragraph 3 above.
8. The system of highways contains impervious covering which gathers storm water
from the entire development and channels it into three artificial structures in the Pennisula.
9. The storm water is then funneled onto Plaintiff's property at three (3) different
locations, in greater volume and at higher velocity than existed prior to the construction of the
Pennisula.
10. The storm water unnaturally forced upon Plaintiff's property by Defendant has
washed, and continues to wash, limestone ballast, rocks, trees, branches, cans, bottles and other
debris onto the property of the Plaintiff.
11. The storm water unnaturally forced upon PlaintiffspropertybyDefendanthascaused
and continues to cause deep erosion to Plaintiff's property.
12. The storm water unnaturally forced upon Plaintiff s property by Defendant has caused
and will continue to cause the siltation of non-navigable water courses on Plaintiff's property.
COUNTI
INJUNCTIVE RELIEF
13. ParagraphsIthrough12aboveareincorporatedhereinbyreferenceasoffullrestated.
14. Plaintiff has on divers occasions brought the above-described circumstances to the
attention of the Defendant and its representatives; however, Defendant has indicated by its actions
that it does not intend to refrain from its wrongful and illegal discharge of storm waters upon the
lands of the Plaintiff as described above.
3
15. On numerous occasions, particularly after storms or other wet weather events,
Plaintiff has observed debris and other materials carved by streams from the Defendants Peninsula
development and ultimately washed upon his property causing erosion to his soils, damage to the
golf course fairway and other plantings and siltation of non-navigable water course.
16. It is believed and therefore averred that the damages suffered by the Plaintiff will
continue into the future unless the Defendant's conduct is abated by this Honorable Court.
17. Although it is possible for employees and contractors of the Plaintiff to temporarily
rectify the damages caused by the Defendant, this procedure can cost thousands of dollars per
incident, disrupt operations of the Plaintiff, damage the aesthetic appearance of the golf course and
inconvenience the golf course patrons.
18. On or about fanuary26,1995, Defendant filed an Application for Land Development
and Subdivision Approval for the Peninsula, which was subsequently approved by Silver Spring
Township, Cumberland County, Pennsylvania. A copy of said Application is attached hereto and
marked as Exhibit "A".
19. In the application process, Defendant represented that its land development and
subdivision plan would not alter or increase the flow of storm water onto the premises of the
Plaintiff.
20. Contrary to these representations contained in Exhibit "A", Defendant has increased
both the amount and character of the storm water.
21. In the Spring of 2002, Defendant applied for and received approval for a change to
its previous plan for Phase III of the Peninsula Subdivision effecting Lots 15 and 16.
4
22. This new plan called for the construction of an underground storm water collection
facility and the installation of a rock lined swale on steep slope (up to 70 degrees) on land adjacent
to the Plaintiff's.
23. During the approval hearing, Defendant represented that:
a. few trees would be removed;
b. the area of disturbance on the steep slopes would be limited to 20 feet in
width; and,
c. there would not be a need for construction equipment to enter onto the steep
slopes.
24. Contrary to these assertions, however, Defendant does intend to use heavy
construction equipment on the steep slope. It also anticipates the construction of benches and trails
to accommodate this equipment and the removal of a large number of trees on the steep slopes.
25. The installation of the rock lined swale envisioned in Phase III will require a
disturbance area that greatly exceeds the 20 feet presented to the Township by the Defendant.
26. Even if the revised subdivision could be built, the storm water discharge would
nevertheless exceed pre-development levels by a volume of more than two to one.
27. Proceeding with the development of Phase III will irreparably harm the Plaintiff.
28. Plaintiff has no adequate remedy at law.
29. Plaintiff has suffered and will continue to suffer irreparable harm if Defendant's
wrongful and tortuous conduct as described above is permitted to continue. The ongoing costs of
Plaintiff repairing damages caused by Defendant together with the loss of the aesthetic value of the
5
property and lost revenues from the disruption of business operations is not capable of precise
calculation.
30. In any event, Defendants wrongful and tortious conduct is continuing in nature in that
every storm or other wet water event results in an erosion of the golf course and a new discharge of
debris and other material onto the property of the Plaintiff.
31. Due to the topography of the tracts of the Plaintiff and Defendant, it is physically not
possible to erect a barrier on Plaintiff s and Defendant's property line that would prevent damage
to Plaintiff's property.
32. Plaintiff has no adequate remedy at law, and its interest and those of the public can
only be protected by requiring Defendant to cease interference with Defendant's property.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, prays that this Court:
A. Preliminarily and permanently enjoin Defendant from interfering with its property
right;
B. Preliminarily and permanently enjoin Defendant from discharging storm water in
excess of that which occurred naturally prior to the construction of the Peninsula
development;
C. Require Defendant to submit a Subdivision Plan for Phase III that complies with all
local ordinances and protects Plaintiff s property rights; and,
D. Grant Plaintiff such other and further relief as this Court deems necessary and
appropriate.
COUNT Il
6
DAMAGES - STORM WATER MANAGEMENT ACT
32 P.S. 080.1 et seg. and Silver Spring Township
Storm Water Management Ordinance of 1995
33. Paragraphs 1 through 32 above are incorporated herein by reference as if fully
restated.
34. This is a claim for damages pursuant to the Storm Water Management Act
("SWMA"), 32 P.S. §680.1 et seq., and the Silver Spring Township Storm Water Management
Ordinance of 1995 which Plaintiff has suffered by reason of Defendant's repeated, unwarranted and
illegal interference with its property rights as described above.
35. Beginning in 1996 and continuing until the present, Defendant, with force and arms,
and without Plaintiff's permission, caused and continues to cause Plaintiff's lot to be entered,
disturbed, injured and spoiled the soil, grass and plantings then and there growing.
36. Defendant's trespass has on multiple occasions damaged the golf course through
erosion and by depositing stone, rocks and other debris on the Plaintiff's lot causing both physical
and aesthetic damage to Plaintiff's property.
37. Defendant's trespass has also caused damage to anon-navigable water course located
on Plaintiff's property.
38. As a result of the aforesaid, Defendant has caused damage to Plaintiff s property in
an amount to be determined by the Court.
39. As a result of the aforesaid, Defendant has caused Plaintiff to lose business
opportunities and customers.
7
40. Defendant's actions violate the Storm Water Management Act, 32P.S. §680.1 etseq..
Pursuant to 32 P.S. §680.15 and the Silver Spring Township Storm Water Management Ordinace,
Plaintiff is entitled to damages from Defendant.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs.
COUNT III
DAMAGES - COMMON LAW TRESPASS
41. Paragraphs 1 through 40 above are incorporated herein by reference as if fully
restated.
42. Defendant's actions constitute common law trespass
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs.
COUNT IV
DAMAGES - PRIVATE NUISANCE
43. Paragraphs 1 through 34 above are incorporated herein by reference as if fully
restated.
44. Defendant's actions constitute a private nuisance.
8
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs.
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
200 N. 3`a Street, 18th Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSGC, Inc. d/b/a Silver Spring Golf
Course
Dated: November _AL, 2003
9
VERIFICATION
I, Ted W. Ansel, on behalf of SSGC, Inc. d/b/a Silver Spring Golf Course, make the
following statements subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn
falsifications to authority, and do hereby state that the facts set forth in the foregoing Complaint
are true and correct to the best of my knowledge, information and belief.
1? LX) dlu?
Ted W. Ansel
Dated: November 2003
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Amended Complaint was served by United States First Class Mail, postage pre-paid, upon those
person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12" Floor
P. O. Box 1146
Harrisburg PA 17108-1146
1
I',) __
Jan' e D. Hagstrom, L al sistant to
Dennis E. Boyle, Esquire
Dated: November I 'Z-, 2003
11
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 03-5935 EQUITY
AMENDED COMPLAINT
AND NOW comes the Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, by and through
its counsel, Nauman, Smith, Shissler & Hall, LLP, and complains as follows:
Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, is a Pennsylvania corporation
whose principal place of business is located at 136 Sample Bridge Road, Mechanicsburg,
Cumberland County, Pennsylvania.
2. Defendant, Sample Bridge Associates, is a limited partnership with its principal place
of business located at 6570 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania.
3. Plaintiff is and, at all times relevant hereto, was the sole owner in fee and in sole
possession of a certain lot situated in Cumberland County, Pennsylvania, and is described as follows:
BEGINNING at a point at the western end of Sample Bridge, said
point also being in the center line of Township Road T-596 (Sample
Bridge Road); thence along the center line of said Township Road T-
596 the following three courses and distances: 1) North 52'06' West
a distance of 249.28 feet, 2) North 24° 50' West a distance of 1773.50
feet, 3) North 07° 22' West a distance of 821 feet to a point on line of
other lands of the Grantor herein; thence along the line of other lands
of the Grantor herein, the following five courses and distances: 1)
North 44° 13' East a distance of 423.30 feet, 2) South 89° 57' East a
distance of 430 feet, 3) North 03° 13' East a distance of 1335 feet, 4)
North 29° 23' East a distance of 615 feet, 5) North 87° 23' 30" East
a distance of 598.14 feet to a point in or along the Conodoguinet
Creek; thence in or along the Conodoguinet Creek the following
eleven courses and distances: 1) South 32° 18' West a distance of
446.51 feet, 2) South 09° 31' West a distance of 487.82 feet, 3) South
01° 33' East a distance of 737.78 feet, 4) South 02° 01' West a
distance of 866.49 feet, 5) South 03° 20' East a distance of 411.86
feet, 6) South 10°07' East a distance of 564.14 feet, 7) South 11 ° 52'
30" West a distance of 238.97 feet, 8) South 23° 47' 30" West a
distance of 422.40 feet, 9) South 14° 57' West a distance of 508.52
feet, 10) South 14° 12' West a distance of 139.05 feet, 11) South 01
23' East a distance of 130.26 feet to a point on Sample Bridge, said
point being in the center line of Township Road T-596, thence along
the center line of T-596 North 56° 44' West a distance of 55 feet to
a point, the place of BEGINNING
CONTAINING 90.63 acres.
BEING part of the same premises which Summit Corporation by its
deed dated October 16, 1963, recorded in the Office of the Recorder
of Deeds in and for Cumberland County, Pennsylvania, in Deed Book
A-21, Page 107, granted and conveyed unto Silver Spring Inc.,
Grantor herein.
4. Plaintiff is in the business of operating a recreational golf course open to the public.
5. Defendant is a developer that has developed and constructed a residential subdivision
named "The Peninsula." Phase III of The Peninsula is located on lands west of the Plaintiff's lands
and burdening the Plaintiff's land as described above.
6. The elevation of The Peninsula Phase III is higher than the elevation of the Plaintiff's
property as described above, and water has always naturally drained from the Defendant's property
onto that of the Plaintiff.
7. In the course of developing The Peninsula Phase III, Defendant has fundamentally
altered the nature and character of the land converting a rural and undeveloped field into a residential
development. Defendant has changed the landscape and constructed a system of roadways in The
Peninsula. In addition, Defendant has constructed large residential units, garages, impervious
driveways and diverted the rainwater into storm water collection systems which are ultimately
2
directed and discharged upon the lands of the Plaintiff as described in Paragraph 3 above.
8. The system of highways contains impervious covering which gathers storm water
from the entire development and channels it into three artificial structures in The Peninsula.
9. The storm water is then funneled onto Plaintiff's property at three (3) different
locations, in greater volume and at higher velocity than existed prior to the construction of The
Peninsula.
10. The storm water unnaturally forced upon Plaintiff's property by Defendant has
washed, and continues to wash, limestone ballast, rocks, trees, branches, cans, bottles and other
debris onto the property of the Plaintiff.
11. Thestorm water unnaturally forced upon Plaintiff's property by Defendant has caused
and continues to cause deep erosion to Plaintiff's property.
12. The storm water unnaturally forced upon Plaintiff's property by Defendant has caused
and will continue to cause the siltation of non-navigable watercourses on Plaintiff's property.
COUNTI
INJUNCTIVE RELIEF
13. Paragraphs 1 through 12 above are incorporated herein by reference as if fully
restated.
14. Plaintiff has on diverse occasions brought the above-described circumstances to the
attention of the Defendant and its representatives; however, Defendant has indicated by its actions
that it does not intend to refrain from its wrongful and illegal discharge of storm waters upon the
lands of the Plaintiff as described above.
3
15. On numerous occasions, particularly after storms or other wet weather events,
Plaintiff has observed debris and other materials carried by streams from the Defendants Peninsula
development and ultimately washed upon his property causing erosion to his soils, damage to the
golf course fairway and other plantings and siltation of non-navigable water course.
16. It is believed and therefore averred that the damage suffered by the Plaintiff will
continue into the future unless the Defendant's conduct is abated by this Honorable Court.
17. Although it is possible for employees and contractors of the Plaintiff to temporarily
rectify the damages caused by the Defendant, this procedure can cost thousands of dollars per
incident, disrupt operations of the Plaintiff, damage the aesthetic appearance of the golf course and
inconvenience the golf course patrons.
18. On or about January 26, 1995, Defendant filed an Application for Land Development
and Subdivision Approval for The Peninsula, which was subsequently approved by Silver Spring
Township, Cumberland County, Pennsylvania. A copy of said Application is attached hereto and
marked as Exhibit "A".
19. In the application process, Defendant represented that its land development and
subdivision plan would not alter or increase the flow of storm water onto the premises of the
Plaintiff.
20. Contrary to these representations contained in Exhibit "A", Defendant has increased
both the amount and character of the storm water.
21. In the Spring of 2002, Defendant applied for and received approval for a change to
its previous plan for Phase III of The Peninsula Subdivision effecting Lots 15 and 16.
22. This new plan called for the construction of an underground storm water collection
4
facility and the installation of a rock lined swale on steep slope (up to 70 degrees) on land adjacent
to the Plaintiff's.
23. During the approval hearing, Defendant represented that:
a. few trees would be removed;
b. the area of disturbance on the steep slopes would be limited to 20 feet in
width; and,
c. there would not be a need for construction equipment to enter onto the steep
slopes.
24. Contrary to these assertions, however, Defendant does intend to use heavy
construction equipment on the steep slope. It also anticipates the construction of benches and trails
to accommodate this equipment and the removal of a large number of trees on the steep slopes.
25. The installation of the rock lined swale envisioned in Phase III will require a
disturbance area that greatly exceeds the 20 feet presented to the Township by the Defendant.
26. Even if the revised subdivision could be built, the storm water discharge would
nevertheless exceed pre-development levels by a volume of more than two to one.
27. Proceeding with the development of Phase III will irreparably harm the Plaintiff.
28. Plaintiff has no adequate remedy at law.
29. Plaintiff has suffered and will continue to suffer irreparable harm if Defendant's
wrongful and tortious conduct as described above is permitted to continue. The ongoing costs of
Plaintiff repairing damages caused by Defendant together with the loss of the aesthetic value of the
property and lost revenues from the disruption of business operations is not capable of precise
calculation.
5
30. In any event, Defendants wrongful and tortious conduct is continuing in nature in that
every storm or other wet water event results in an erosion of the golf course and a new discharge of
debris and other material onto the property of the Plaintiff.
31. Due to the topography of the tracts of the Plaintiff and Defendant, it is physically not
possible to erect a barrier on Plaintiff's and Defendant's property line that would prevent damage
to Plaintiff's property.
32. Plaintiff has no adequate remedy at law, and its interest and those of the public can
only be protected by requiring Defendant to cease interference with Defendant's property.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, prays that this Court:
A. Preliminarily and permanently enjoin Defendant from interfering with its property
right;
B. Preliminarily and permanently enjoin Defendant from discharging storm water in
excess of that which occurred naturally prior to the construction of The Peninsula
development;
C. Require Defendant to submit a Subdivision Plan for Phase III that complies with all
local ordinances and protects Plaintiff's property rights;
D. Grant Plaintiff attorneys' fees and costs, and such other and further relief as this
Court deems necessary and appropriate.
COUNT II
DAMAGES - STORM WATER MANAGEMENT ACT
32 P.S. &680.1 et seo and Silver Spring Township
Storm Water Management Ordinance of 1995
33. Paragraphs 1 through 32 above are incorporated herein by reference as if fully
restated.
34. This is a claim for damages pursuant to the Storm Water Management Act
("SWMA"), 32 P.S. §680.1 et seq., and the Silver Spring Township Storm Water Management
Ordinance of 1995 which Plaintiff has suffered by reason of Defendant's repeated, unwarranted and
illegal interference with its property rights as described above.
35. Beginning in 1996 and continuing until the present, Defendant, with force and arms,
and without Plaintiff's permission, caused and continues to cause Plaintiff's lot to be entered,
disturbed, injured and spoiled the soil, grass and plantings then and there growing.
36. Defendant's trespass has on multiple occasions damaged the golf course through
erosion and by depositing stone, rocks and other debris on the Plaintiff's lot causing both physical
and aesthetic damage to Plaintiff's property.
37. Defendant's trespass has also caused damage to a non-navigable water course located
on Plaintiff's property.
38. As a result of the aforesaid, Defendant has caused damage to Plaintiff's property in
an amount to be determined by the Court.
39. As a result of the aforesaid, Defendant has caused Plaintiff to lose business
opportunities and customers.
40. Defendant's actions violate the Storm Water Management Act, 32 P.S. §§ 680.1 et
seq.. Pursuant to 32 P.S. § 680.15 and the Silver Spring Township Storm Water Management
Ordinance, Plaintiff is entitled to damages from Defendant.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
7
$25,000.00, exclusive of interest and costs, as well as attorneys' fees and costs as appropriate.
COUNT III
DAMAGES - COMMON LAW TRESPASS
41. Paragraphs 1 through 40 above are incorporated herein by reference as if fully
restated.
42. Defendant's actions constitute common law trespass.
43. Defendant has known that its construction has caused significant damage to Plaintiff's
property for years through its trespass of excessive storm water, and has continued its destructive
activities in reckless disregard for Plaintiffs property rights.
44. To gain approval for its development of Phase III, Defendant misrepresented critical
facts to the Township upon its Subdivision Plans and through oral representations at Township
meetings.
45. Defendant knowingly misrepresented that it held an easement across Plaintiff's
property that would be utilized to manage the storm water flow.
46. Defendant does not, and never did, have an easement across Plaintiff's property for
storm water purposes.
47. Defendant failed to accurately account for the damage its construction would cause
to Plaintiff in the Original Subdivision Plan it submitted to the Township for Phase III.
48. Defendant misrepresented that the storm water would be able to flow into a
purportedly preexisting pond on Plaintiff's property.
49. At the time of its submission of the Original Subdivision Plan, Defendant was aware
that there was no pond on Plaintiff's property at the represented location, and that in fact the storm
8
water flow was instead directed to pool on the ladies' tee.
50. Plaintiff had informed Defendant of the pooling of water on its ladies' tee on several
separate occasions.
51. Defendant refused to reconfigure the direction of storm water, or otherwise address
the excessive damage upon Plaintiff's property, despite its awareness of the trespass and plan
violation.
52. Defendant's intentional misrepresentations of its relationship to Plaintiff's property,
and continued and knowing invasion of Plaintiff's property constitutes outrageous conduct.
53. Defendant also represented to the Township that it would construct a pipeline to carry
storm water from another section of its development to a location on its property adjacent to the
Conodoguinet Creek.
54. After obtaining plan approval based upon this representation, Defendant through its
agents, directed its contractor not to construct the pipe as approved.
55. Instead, the pipe was terminated in a ravine that discharged water and silt onto
Plaintiff's property.
56. Defendant never disclosed its noncompliance with the plan.
57. Despite repeated notification of the problem, Defendant continued its trespass upon
the Plaintiff's property.
58. Upon learning the deficiencies of the original submitted plan for Phase III of The
Peninsula, Defendant revised the subdivision plan ("Revised Plan") to require construction of a pipe-
like concrete structure to direct the storm water flow into the Conodoguinet Creek.
59. Plaintiff believes, and therefore avers, that the structure is not being constructed in
9
accordance with the Revised Submitted Plan because it is not feasible to do so.
60. Defendant has submitted two separate plans for Phase III with which it has
purposefully not complied.
61. It is believed, and therefore averred, that the Revised Plan will not eliminate
Defendant's trespass onto Plaintiff's property.
62. Plaintiff is entitled to punitive damages from Defendant due to its reckless
indifference to Plaintiff's rights.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs, and requests punitive damages, as well as attomeys' fees
and costs as appropriate.
COUNT IV
DAMAGES - PRIVATE NUISANCE
63. Paragraphs 1 through 62 above are incorporated herein by reference as if fully
restated.
64. Defendant's actions constitute a private nuisance.
10
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs, and requests punitive damages, as well as attorneys' fees
and costs as appropriate.
NAUMAN, SMITH, SHISSLER & HALL, LLP
e,
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3`s Street, 18" Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSGC, Inc. d/b/a Silver Spring Golf
Course
Dated: December 1 2003
11
VERIFICATION
I, Dennis E. Boyle, on behalf of SSGC, Inc. d/b/a Silver Spring Golf Course, make the
following statements subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsifications
to authority, and do hereby state that the facts set forth in the foregoing Amended Complaint are true
and correct to the best of my knowledge, information and belief.
. Boyle'
Dennis
Dated: December ,'^2003
12
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Petition for Leave to Amend Complaint in Equity was served by United States First Class Mail,
postage pre-paid, upon those person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12`s Floor
P. O. Box 1146
Harrisburg PA 17108-1146
?Z Y-j- ? 1- -1--- -?
ijdnice D. Hagstrom, g Assistant to
Dennis E. Boyle, Esquire
Dated: December 2 `/ , 2003
4
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SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 03-5935 EQUITY
Defendant
ORDER
AND NOW this day of December, 2003, upon consideration of the Plaintiff's
Motion for Leave to Amend its Complaint in Equity, said motion is GRANTED.
By the Court,
Edward Guido, J.
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-5935 EQUITY
Defendant
ORDER
AND NOW this day of December, 2003, upon consideration of the Plaintiff's
Motion for Leave to Amend its Complaint in Equity, said motion is GRANTED.
By the Court,
Edward Guido, J.
DEC-26-2003 FRI 04:09 PM NAUMAN SMITH FAX NO. 2341925 P. 02
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
IN TI-JE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-5935 EQUITY
Defendant
ORDER
AND NOW this a 8 day of December, 2003, upon consideration of the parties' Joint
Motion for Continuance, said motion is GRANTED. The parties shall list this matter for trial
once discovery has been completed.
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SSGCI INC. dlbla SILVER SPRING
GOLF COURSE, plaintiff
v.
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
N0.03-5935 EQUITY
SAWLE BRIDGE ASSOCIATES,
Defendant
JOINT X QT- FOR CONTIN
Shissler and Hall,
AND NOW comes SSGC, Inc., through its Counsel Nauman, Smith,
and respectfully
LLP and Sample Bridge Associates, through its counsel, Rhoads and Sinon,
7 and 8, 2004, and
Trial currently
requests this Court continue the Equity scheduled for January
in support thereof avers as follows:
I Although the parties to this action have exchanged extensive discovery, counsel
for plaintiff has only recently become aware of the existence of extensive documentation relevant
to prior defense discovery requests. Plaintiff's counsel is in the process of obtaining, reviewing
sel for the defendant-
and copying this documentation and providing it to Conn 2 Based upon this information, it is believed that additional depositions will need to
be taken by one and perhaps both parties.
3 Plaintiff will be filing a motion to amend its Complaint to which the defense does
not concur. Therefore, it may be necessary to hold additional pre-trial proceedings in this case.
q. Recent wet weather events have, in the opinion of the Plaintiff, created 20a?ddition
damage which Plaintiff will not be able to calculate and quantify prior to January
Defendant denies this contention.
5 Both parties to the action concur in this request for continuance.
WHEREFORE, SSGC, Inc., and Sample Bridge Associates respectfully request that the
trial currently scheduled for January land 8, 2004 be continued.
Respectfully submitted,
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3`' Street, 18'h Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSG(- Inc. d/b/a Silver Spring Golf
Course
Dated: December J. 2003
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Amended Complaint was served by United States First Class Mail, postage pre-paid, upon those
person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12`" Floor
P. O. Box 1146
Harrisburg PA 17108-1146
D. l-ftg-stroifi, L Assistant to
E. Boyle, Esq re
Dated: December 141" 2003
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DEC-26-2003 FRI 04 09 PM NAUMAN SMITH FAX NO. 2341925 P. 01
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SSGC, INC. d/b/a IN THE COURT OF COMMON PLEAS OF
SILVER SPRING CUMBERLAND COUNTY, PENNSYLVANIA
GOLF COURSE
V.
SAMPLE BRIDGE NO. 2003-5935 EQUITY
ASSOCIATES
CIVIL ACTION - EQUITY
ORDER OF COURT
AND NOW, this 2ND day of JANUARY 2004, a Rule is issued upon Defendant's
to Show Cause why Plaintiff's Request to Amend its Complaint should not be granted.
Rule returnable fifteen (15) days after service.
By
Edward E. Guido, J.
,Dennis E. Boyle, Esquire
P.O. Box 840
200 North 3RD Street I?
Harrisburg, Pa. 17108
,Timothy J. Nieman, Esquire
P.O. Box 1146
One S. Market Square 0i.0%-0y
Harrisburg, Pa. 17108
:sld
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DEC 0 2903'V
SSGC, INC. d/b/a SILVER SPRING : IN THE COURT OF COMMON PLEAS
GOLF COURSE, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. NO. 03-5935 EQUITY
SAMPLE BRIDGE ASSOCIATES,
Defendant
ORDER
AND NOW this day of December, 2003, upon consideration of the Plaintiff's
Motion for Leave to Amend its Complaint in Equity, said motion is GRANTED.
By the Court,
Edward Guido, J.
5
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 03-5935 EQUITY
MOTION FOR LEAVE OF COURT
TO AMEND COMPLAINT
AND NOW comes Plaintiff SSGC, Inc., through its Counsel Nauman, Smith, Shissler and
Hall, LLP, and respectfully requests this Court grant leave to amend its Complaint in Equity pursuant
to Pa. R.C.P. 1033, to add factual allegations supporting its request for punitive damages and in
support thereof avers as follows:
On November 12, 2003, Plaintiff filed a Complaint in Equity requesting injunctive
relief and damages for Defendant's violation of the Storm Water Management Act, ("Act") 32 P.S.
H680.1 et seq., common law trespass and private nuisance. A true and correct copy of Plaintiff's
Complaint in Equity is attached as Exhibit `A' and is incorporated herein by reference.
2. Plaintiff's counsel has become aware, through investigation, in conducting
discovery in this action, and the corresponding action at law, (Civ. No. 02-692, SSGC, Inc. V.
Sample Bridge Associates) that Defendant has engaged in conduct that may be characterized as
outrageous and in reckless disregard of Plaintiff's rights as an adjoining landowner.
3. To date, Defendant has not filed a responsive pleading to the Complaint in Equity.
4. Since the filing of the initial Complaint, Defendants have engaged in conduct
which has further damaged Plaintiff's property.
5. Plaintiff wishes to amend its Complaint in Equity in order to include factual
averments regarding the outrageous nature of which support a claim for punitive damages. A
copy of Plaintiff's proposed Amended Complaint in Equity is attached as Exhibit `B.'
6. The proposed Amended Complaint in Equity does not alter the theory of the case,
or add causes of action as the amendment is limited to the factual basis for punitive damages.
Amendment of Plaintiff's Complaint in Equity would not unduly delay the
proceedings on this case.
8. An amendment to aver facts supporting a claim for punitive damages alters only
the type of recovery sought, and does not allege a new cause of action, which could alter
Defendant's theory of defense.
10. Defendant Sample Bridge Associates will not be prejudiced or surprised by the
amendment because it has not filed an Answer, and as Plaintiff provided Defendant notice of its
intention to amend its complaint to include grounds for recovering punitive damages.
11. The statute of limitations does not serve as a bar to this amendment because
Defendant's injury to Plaintiff's property is of a continuing nature.
12. Defendant, Sample Bridge Associate, has been advised of this request to amend
the Complaint and does not concur in the amendment.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, respectfully
requests this Honorable Court to grant it leave to amend its Complaint in Equity to include
factual allegations regarding Defendant's conduct that support Plaintiff's request for punitive
damages.
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3d Street, 18' Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For. SSGC, Inc. d/b/a Silver Spring Golf
Dated: December AA003 Course
Exhibit A
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY
NO.0 EQUITY ?7 - ,:
SAMPLE BRIDGE ASSOCIATES, -
Defendant c
NOTICE 1 i7D -)n
You have been sued in Court. If you wish to defend against the claims set for 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 Courtwithout 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.
Court Administrator, 461 Floor
Cumberland County Courthouse
1 Courthouse Square
Carlisle PA 17013
Telephone: (717) 240-6200
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene veinte (20) dial de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar tma apariencia escrita o en persona o por aboado
y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su
persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden
contra usted sin previo aviso o notificacion ypor cualquierqueja o alivio que es pedido en lapeticion
de demander Usted puede perder dinero o sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. ST NO TIENE
ABOGADO 0 ST NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DMECCION SE
ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Court Administrator, 4" Floor
Cumberland County Courthouse
1 Courthouse Square
Carlisle PA 17013
Telephone: (717) 240-6200
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
200 N. V Street, 18'h Floor
P. 0. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSGC, Ine. d/b/a Silver Spring Golf
Course
Dated: November 11, 2003
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
COMPLAINT
EQUITY
AND NOW comes the Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, by and through
its counsel, Nauman, Smith, Shissler & Hall, LLP, and complains as follows:
Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, is a Pennsylvania corporation
whose principal place of business is located at 136 Sample Bridge Road, Mechanicsburg,
Cumberland County, Pennsylvania.
2. Defendant, Sample Bridge Associates, is a limited partnership with its principal place
of business located at 6570 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania.
3. Plaintiff is, and at all times relevant hereto, was the sole owner in fee and in sole
possession ofa certain lot situated in Cumberland County, Pennsylvania, and is described as follows:
BEGINNING at a point at the western end of Sample Bridge, said
point also being in the center line of Township Road T-596 (Sample
Bridge Road); thence along the center line of said Township Road T-
596 the following three courses and distances: 1) North 52` 06' West
a distance of 249.28 feet, 2) North 24° 50' West a distance of 1773.50
feet, 3) North 07° 22' West a distance of 821 feet to a point online of
other lands of the Grantor herein; thence along the line of other lands
of the Grantor herein, the following five courses and distances: 1)
North 44° 13' East a distance of 423.30 feet, 2) South 89° 57' East a
distance of 430 feet, -))North 03° 13' East a distance of 1335 feet, 4)
North 29° 23' East a distance of 615 feet, 5) North 87° 23' 30" East
a distance of 598.14 feet to a point in or along the Conodoguinet
Creek; thence in or along the Conodoguinet Creek the following
eleven courses and distances: 1) South 32° 18' West a distance of
446.51 feet, 2) South 09031 'West a distance of 487.82 feet, 3) South
01° 33' East a distance of 737.78 feet, 4) South 02° 01' West a
distance of 866.49 feet, 5) South 03° 20' East a distance of 411.86
feet, 6) South 10° 07' East a distance of 564.14 feet, 7) South 11 ° 52'
30" West a distance of 238.97 feet, 8) South 23° 47' 30" West a
distance of 422.40 feet, 9) South 14° 57' West a distance of 508.52
feet, 10) South 14° 12' West a distance of 139.05 feet, 11) South 01 °
23' East a distance of 130.26 feet to a point on Sample Bridge, said
point being in the center line of Township Road T-596, thence along
the center line of T-596 North 56° 44' West a distance of 55 feet to
a point, the place of BEGINNING
CONTAINING 90.63 acres.
BEING part of the same premises which Summit Corporation by its
deed dated October 16, 1963, recorded in the Office of the Recorder
ofDeeds in and for Cumberland County, Pennsylvania, inDeed Book
A-21, Page 107, granted and conveyed unto Silver Spring Inc.,
Grantor herein.
4. Plaintiff is in the business of operating a recreational golf course open to the public.
5. Defendant is a developer that has developed and constructed a residential subdivision
named "The Peninsula". Phase III of the Peninsula is located on lands west of the Plaintiff's lands
and burdening the Plaintiff's land as described above.
6. The elevation of the Peninsula Phase III is higher than the elevation of the Plaintiff's
property as described above, and water has always naturally drained from the Defendant's property
onto that of the Plaintiff.
7. In the course of developing the Peninsula Phase III, Defendant has fundamentally
altered the nature and character of the land converting a rural and undeveloped field into a residential
development. Defendant has changed the landscape and constructed a system of roadways in the
Peninsula. In addition, Defendant has constructed large residential units, garages, impervious
driveways and diverted the rainwater into stormwater collection systems which are ultimately
directed and discharged upon the lands of the Plaintiff as described in Paragraph 3 above.
8. The system of highways contains impervious covering which gathers storm water
from the entire development and channels it into three artificial structures in the Pennisula.
9. The storm water is then funneled onto Plaintiff's property at three (3) different
locations, in greater volume and at higher velocity than existed prior to the construction of the
Pennisula.
10. The storm water unnaturally forced upon Plaintiff's property by Defendant has
washed, and continues to wash, limestone ballast, rocks, trees, branches, cans, bottles and other
debris onto the property of the Plaintiff.
ll. The storm water unnaturally forced upon Plaintiff s property by Defendant has caused
and continues to cause deep erosion to Plaintiff's property.
12. The storm water unnaturally forced upon Plaintiff s property by Defendant has caused
and will continue to cause the siltation of non-navigable water courses on Plaintiff's property.
COUNTI
INJUNCTIVE RELIEF
13. Paragraphs I through 12 above are incorporated herein by reference as offallrestated.
14. Plaintiff has on divers occasions brought the above-described circumstances to the
attention of the Defendant and its representatives; however, Defendant has indicated by its actions
that it does not intend to refrain from its wrongful and illegal discharge of storm waters upon the
lands of the Plaintiff as described above.
3
15. On numerous occasions, particularly after storms or other wet weather events,
Plaintiff has observed debris and other materials carried by streams from the Defendants Peninsula
development and ultimately washed upon his property causing erosion to his soils, damage to the
golf course fairway and other plantings and siltation of non-navigable water course.
16. It is believed and therefore averred that the damages suffered by the Plaintiff will
continue into the future unless the Defendant's conduct is abated by this Honorable Court.
17. Although it is possible for employees and contractors of the Plaintiff to temporarily
rectify the damages caused by the Defendant, this procedure can cost thousands of dollars per
incident, disrupt operations of the Plaintiff, damage the aesthetic appearance of the golf course and
inconvenience the golf course patrons.
18. On or about January26, 1995, Defendant filed an Application for Land Development
and Subdivision Approval for the Peninsula, which was subsequently approved by Silver Spring
Township, Cumberland County, Pennsylvania. A copy of said Application is attached hereto and
marked as Exhibit "A".
19. hi the application process, Defendant represented that its land development and
subdivision plan would not alter or increase the flow of storm water onto the premises of the
Plaintiff.
20. Contraryto these representations contained in Exhibit "A", Defendant has increased
both the amount and character of the storm water.
21. In the Spring of 2002, Defendant applied for and received approval for a change to
its previous plan for Phase III of the Peninsula Subdivision effecting Lots 15 and 16.
4
22. This new plan called for the constriction of an underground storm water collection
facility and the installation of a rock lined swale on steep slope (up to 70 degrees) on land adjacent
to the Plaintiff's.
23. During the approval hearing, Defendant represented that:
a. few trees would be removed;
b. the area of disturbance on the steep slopes would be limited to 20 feet in
width; and,
c. there would not be a need for construction equipment to enter onto the steep
slopes.
24. Contrary to these assertions, however, Defendant does intend to use heavy
construction equipment on the steep slope. It also anticipates the construction of benches and trails
to accommodate this equipment and the removal of a large number of trees on the steep slopes.
25. The installation of the rock lined swale envisioned in Phase III will require a
disturbance area that greatly exceeds the 20 feet presented to the Township by the Defendant.
26. Even if the revised subdivision could be built, the storm water discharge would
nevertheless exceed pre-development levels by a volume of more than two to one.
27. Proceeding with the development of Phase III will irreparably harm the Plaintiff.
28. Plaintiff has no adequate remedy at law.
29. Plaintiff has suffered and will continue to suffer irreparable harm if Defendant's
wrongful and tortuous conduct as described above is permitted to continue. The ongoing costs of
Plaintiff repairing damages caused by Defendant together with the loss of the aesthetic value of the
5
Property and lost revenues from the disruption of business operations is not capable of precise
calculation.
30. In any event, Defendants wrongful and tortious conduct is continuing in nature in that
every storm or other wet water event results in an erosion of the golf course and a new discharge of
debris and other material onto the property of the Plaintiff.
31. Due to the topography of the tracts of the Plaintiff and Defendant, it is physically not
possible to erect a barrier on Plaintiff's and Defendant's property line that would prevent damage
to Plaintiff's property.
32. Plaintiff has no adequate remedy at law, and its interest and those of the public can
only be protected by requiring Defendant to cease interference with Defendant's property.
WHEREFORE, Plaintiff, SS GC, Inc. d/b/a Silver Spring Golf Course, prays that this Court:
A. Preliminarily and permanently enjoin Defendant from interfering with its property
right;
B. Preliminarily and permanently enjoin Defendant from discharging storm water in
excess of that which occurred naturally prior to the construction of the Peninsula
development;
C. Require Defendant to submit a Subdivision Plan for Phase III that complies with all
local ordinances and protects Plaintiff's property rights; and,
D. Grant Plaintiff such other and further relief as this Court deems necessary and
appropnate.
COUNTII
l ?
DAMAGES - STORM WATER MANAGEMENT ACT
32 P.S. &680.1 et sea and Silver Spring Township
Storm Water Manaeement Ordinance of 1995
33. Paragraphs 1 through 32 above are incorporated herein by reference as if fully
restated.
34. This is a claim for damages pursuant to the Storm Water Management Act
("SWMA"), 32 P.S. §680.1 et seq., and the Silver Spring Township Storm Water Management
Ordinance of 1995 which Plaintiffhas suffered by reason ofDefendant's repeated, unwarranted and
illegal interference with its property rights as described above.
35. Beginning in 1996 and continuing until the present, Defendant, with force and arms,
and without Plaintiff's permission, caused and continues to cause Plaintiff's lot to be entered,
disturbed, injured and spoiled the soil, grass and plantings then and there growing.
36. Defendant's trespass has on multiple occasions damaged the golf course through
erosion and by depositing stone, rocks and other debris on the Plaintiff's lot causing both physical
and aesthetic damage to Plaintiff's property.
37. Defendant's trespass has also caused damage to a non-navigable water course located
on Plaintiff's property.
38. As a result of the aforesaid, Defendant has caused damage to Plaintiff's property in
an amount to be determined by the Court.
39. As a result of the aforesaid, Defendant has caused Plaintiff to lose business
opportunities and customers.
40. Defendant's actions violate the Storm Water Management Act, 32 P.S. §680.1 etseq..
Pursuant to 32 P.S. §680.15 and the Silver Spring Township Storm Water Management Ordinace,
Plaintiff is entitled to damages from Defendant.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs.
COUNT III
DAMAGES - COMMON LAW TRESPASS
41. Paragraphs I through 40 above are incorporated herein by reference as if fully
restated.
42. Defendant's actions constitute common law trespass
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs.
COUNT IV
DAMAGES - PRIVATE NUISANCE
43. Paragraphs 1 through 34 above are incorporated herein by reference as if fully
restated.
44. Defendant's actions constitute a private nuisance.
8
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs.
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
200 N. 3`d Street, 18th Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSGC, Inc. d/b/a Silver Spring Golf
Course
Dated: November, 2003
9
VERIFICATION
I, Ted W. Ansel, on behalf of SSGC, Inc. d/b/a Silver Spring Golf Course, make the
following statements subject to the penalties of I8 Pa.C.S. § 4904, relating to unswom
falsifications to authority, and do hereby state that the facts set forth in the foregoing Complaint
are true and correct to the best of my knowledge, information and belief.
(?I W. j?'
Ted W. Ansel
Dated: November , 2003
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Amended Complaint was served by United States First Class Mail, postage pre-paid, upon those
person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12`h Floor
P. O. Box 1146
Harrisburg PA 17108-1146
Jan' e D. Hagstrom, L al , sistant to
Dennis E. Boyle, Esquire
Dated: November 1 Z, 2003
11
Exhibit B
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-5935 EQUITY
AMENDED COMPLAINT
AND NOW comes the Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, by and through
its counsel, Nauman, Smith, Shissler & Hall, LLP, and complains as follows:
1. Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, is a Pennsylvania corporation
whose principal place of business is located at 136 Sample Bridge Road, Mechanicsburg,
Cumberland County, Pennsylvania.
2. Defendant, Sample Bridge Associates, is a limited partnership with its principal place
of business located at 6570 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania.
3. Plaintiff is and, at all times relevant hereto, was the sole owner in fee and in sole
possession of a certain lot situated in Cumberland County, Pennsylvania, and is described as follows:
BEGINNING at a point at the western end of Sample Bridge, said
point also being in the center line of Township Road T-596 (Sample
Bridge Road); thence along the center line of said Township Road T-
596 the following three courses and distances: 1) North 52'06' West
a distance of 249.28 feet, 2) North 24° 50' West a distance of 1773.50
feet, 3) North 07° 22' West a distance of 821 feet to a point on line of
other lands of the Grantor herein; thence along the line of other lands
of the Grantor herein, the following five courses and distances: 1)
North 44° 13' East a distance of 423.30 feet, 2) South 89° 57' East a
distance of 430 feet, 3) North 03° 13' East a distance of 1335 feet, 4)
North 29° 23' East a distance of 615 feet, 5) North 87° 23' 30" East
a distance of 598.14 feet to a point in or along the Conodoguinet
Creek; thence in or along the Conodoguinet Creek the following
eleven courses and distances: 1) South 32° 18' West a distance of
446.51 feet, 2) South 09° 31' West a distance of 487.82 feet, 3) South
01° 33' East a distance of 737.78 feet, 4) South 02° 01' West a
distance of 866.49 feet, 5) South 03° 20' East a distance of 411.86
feet, 6) South 10° 07' East a distance of 564.14 feet, 7) South 11 ° 52'
30" West a distance of 238.97 feet, 8) South 23° 47' 30" West a
distance of 422.40 feet, 9) South 14° 57' West a distance of 508.52
feet, 10) South 14° 12' West a distance of 139.05 feet, 11) South 010
23' East a distance of 130.26 feet to a point on Sample Bridge, said
point being in the center line of Township Road T-596, thence along
the center line of T-596 North 56° 44' West a distance of 55 feet to
a point, the place of BEGINNING
CONTAINING 90.63 acres.
BEING part of the same premises which Summit Corporation by its
deed dated October 16, 1963, recorded in the Office of the Recorder
of Deeds in and for Cumberland County, Pennsylvania, in Deed Book
A-21, Page 107, granted and conveyed unto Silver Spring Inc.,
Grantor herein.
4. Plaintiff is in the business of operating a recreational golf course open to the public.
5. Defendant is a developer that has developed and constructed a residential subdivision
named ""The Peninsula." Phase III of The Peninsula is located on lands west of the Plaintiff's lands
and burdening the Plaintiff's land as described above.
6. The elevation of The Peninsula Phase III is higher than the elevation of the Plaintiff's
property as described above, and water has always naturally drained from the Defendant's property
onto that of the Plaintiff.
7. In the course of developing The Peninsula Phase III, Defendant has fundamentally
altered the nature and character of the land converting a rural and undeveloped field into a residential
development. Defendant has changed the landscape and constructed a system of roadways in The
Peninsula. In addition, Defendant has constructed large residential units, garages, impervious
driveways and diverted the rainwater into storm water collection systems which are ultimately
directed and discharged upon the lands of the Plaintiff as described in Paragraph 3 above.
8. The system of highways contains impervious covering which gathers storm water
from the entire development and channels it into three artificial structures in The Peninsula.
9. The storm water is then funneled onto Plaintiff's property at three (3) different
locations, in greater volume and at higher velocity than existed prior to the construction of The
Peninsula.
10. The storm water unnaturally forced upon Plaintiff's property by Defendant has
washed, and continues to wash, limestone ballast, rocks, trees, branches, cans, bottles and other
debris onto the property of the Plaintiff.
11. The storm water unnaturally forced upon Plaintiff's property by Defendant has caused
and continues to cause deep erosion to Plaintiff's property.
12. The storm water unnaturally forced upon Plaintiff's property by Defendant has caused
and will continue to cause the siltation of non-navigable water courses on Plaintiff's property.
COUNTI
INJUNCTIVE RELIEF
13. Paragraphs 1 through 12 above are incorporated herein by reference as if fully
restated.
14. Plaintiff has on diverse occasions brought the above-described circumstances to the
attention of the Defendant and its representatives; however, Defendant has indicated by its actions
that it does not intend to refrain from its wrongful and illegal discharge of storm waters upon the
lands of the Plaintiff as described above.
3
15. On numerous occasions, particularly after storms or other wet weather events,
Plaintiff has observed debris and other materials carried by streams from the Defendants Peninsula
development and ultimately washed upon his property causing erosion to his soils, damage to the
golf course fairway and other plantings and siltation of non-navigable water course.
16. It is believed and therefore averred that the damage suffered by the Plaintiff will
continue into the future unless the Defendant's conduct is abated by this Honorable Court.
17. Although it is possible for employees and contractors of the Plaintiff to temporarily
rectify the damages caused by the Defendant, this procedure can cost thousands of dollars per
incident, disrupt operations of the Plaintiff, damage the aesthetic appearance of the golf course and
inconvenience the golf course patrons.
18. On or about January 26, 1995, Defendant filed an Application for Land Development
and Subdivision Approval for The Peninsula, which was subsequently approved by Silver Spring
Township, Cumberland County, Pennsylvania. A copy of said Application is attached hereto and
marked as Exhibit "A".
19. In the application process, Defendant represented that its land development and
subdivision plan would not alter or increase the flow of storm water onto the premises of the
Plaintiff.
20. Contrary to these representations contained in Exhibit "A", Defendant has increased
both the amount and character of the storm water.
21. In the Spring of 2002, Defendant applied for and received approval for a change to
its previous plan for Phase III of The Peninsula Subdivision effecting Lots 15 and 16.
22. This new plan called for the construction of an underground storm water collection
4
facility and the installation of a rock lined swale on steep slope (up to 70 degrees) on land adjacent
to the Plaintiff's.
23. During the approval hearing, Defendant represented that:
a. few trees would be removed;
b. the area of disturbance on the steep slopes would be limited to 20 feet in
width; and,
c. there would not be a need for construction equipment to enter onto the steep
slopes.
24. Contrary to these assertions, however, Defendant does intend to use heavy
construction equipment on the steep slope. It also anticipates the construction of benches and trails
to accommodate this equipment and the removal of a large number of trees on the steep slopes.
25. The installation of the rock lined swale envisioned in Phase III will require a
disturbance area that greatly exceeds the 20 feet presented to the Township by the Defendant.
26. Even if the revised subdivision could be built, the storm water discharge would
nevertheless exceed pre-development levels by a volume of more than two to one.
27. Proceeding with the development of Phase III will irreparably harm the Plaintiff.
28. Plaintiff has no adequate remedy at law.
29. Plaintiff has suffered and will continue to suffer irreparable harm if Defendant's
wrongful and tortious conduct as described above is permitted to continue. The ongoing costs of
Plaintiff repairing damages caused by Defendant together with the loss of the aesthetic value of the
property and lost revenues from the disruption of business operations is not capable of precise
calculation.
5
30. In any event, Defendants wrongful and tortious conduct is continuing in nature in that
every storm or other wet water event results in an erosion of the golf course and a new discharge of
debris and other material onto the property of the Plaintiff.
31. Due to the topography of the tracts of the Plaintiff and Defendant, it is physically not
possible to erect a barrier on Plaintiff's and Defendant's property line that would prevent damage
to Plaintiff's property.
32. Plaintiff has no adequate remedy at law, and its interest and those of the public can
only be protected by requiring Defendant to cease interference with Defendant's property.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, prays that this Court:
A. Preliminarily and permanently enjoin Defendant from interfering with its property
right;
B. Preliminarily and permanently enjoin Defendant from discharging storm water in
excess of that which occurred naturally prior to the construction of The Peninsula
development;
C. Require Defendant to submit a Subdivision Plan for Phase III that complies with all
local ordinances and protects Plaintiff's property rights;
D. Grant Plaintiff attorneys' fees and costs, and such other and further relief as this
Court deems necessary and appropriate.
COUNT II
DAMAGES - STORM WATER MANAGEMENT ACT
32 P.S. &680.1 et sea, and Silver Spring Township
Storm Water Management Ordinance of 1995
33. Paragraphs 1 through 32 above are incorporated herein by reference as if fully
restated.
34. This is a claim for damages pursuant to the Storm Water Management Act
("SWMA"), 32 P.S. §680.1 et seq., and the Silver Spring Township Storm Water Management
Ordinance of 1995 which Plaintiff has suffered by reason of Defendant's repeated, unwarranted and
illegal interference with its property rights as described above.
35. Beginning in 1996 and continuing until the present, Defendant, with force and arms,
and without Plaintiff's permission, caused and continues to cause Plaintiff's lot to be entered,
disturbed, injured and spoiled the soil, grass and plantings then and there growing.
36. Defendant's trespass has on multiple occasions damaged the golf course through
erosion and by depositing stone, rocks and other debris on the Plaintiff's lot causing both physical
and aesthetic damage to Plaintiff's property.
37. Defendant's trespass has also caused damage to a non-navigable water course located
on Plaintiff's property.
38. As a result of the aforesaid, Defendant has caused damage to Plaintiff's property in
an amount to be determined by the Court.
39. As a result of the aforesaid, Defendant has caused Plaintiff to lose business
opportunities and customers.
40. Defendant's actions violate the Storm Water Management Act, 32 P.S. §§ 680.1 et
seq.. Pursuant to 32 P.S. § 680.15 and the Silver Spring Township Storm Water Management
Ordinance, Plaintiff is entitled to damages from Defendant.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
7
$25,000.00, exclusive of interest and costs, as well as attorneys' fees and costs as appropriate.
COUNT III
DAMAGES - COMMON LAW TRESPASS
41. Paragraphs 1 through 40 above are incorporated herein by reference as if fully
restated.
42. Defendant's actions constitute common law trespass.
43. Defendant has known that its construction has caused significant damage to Plaintiff s
property for years through its trespass of excessive storm water, and has continued its destructive
activities in reckless disregard for Plaintiff's property rights.
44. To gain approval for its development of Phase III, Defendant misrepresented critical
facts to the Township upon its Subdivision Plans and through oral representations at Township
meetings.
45. Defendant knowingly misrepresented that it held an easement across Plaintiffs
property that would be utilized to manage the storm water flow.
46. Defendant does not, and never did, have an easement across Plaintiff's property for
storm water purposes.
47. Defendant failed to accurately account for the damage its construction would cause
to Plaintiff in the Original Subdivision Plan it submitted to the Township for Phase IH.
48. Defendant misrepresented that the storm water would be able to flow into a
purportedly preexisting pond on Plaintiffs property.
49. At the time of its submission of the Original Subdivision Plan, Defendant was aware
that there was no pond on Plaintiff s property at the represented location, and that in fact the storm
8
water flow was instead directed to pool on the ladies' tee.
50. Plaintiff had informed Defendant of the pooling of water on its ladies' tee on several
separate occasions.
51. Defendant refused to reconfigure the direction of storm water, or otherwise address
the excessive damage upon Plaintiff's property, despite its awareness of the trespass and plan
violation.
52. Defendant's intentional misrepresentations of its relationship to Plaintiff's property,
and continued and knowing invasion of Plaintiff's property constitutes outrageous conduct.
53. Defendant also represented to the Township that it would construct a pipeline to carry
storm water from another section of its development to a location on its property adjacent to the
Conodoguinet Creek.
54. After obtaining plan approval based upon this representation, Defendant through its
agents, directed its contractor not to construct the pipe as approved.
55. Instead, the pipe was terminated in a ravine that discharged water and silt onto
Plaintiff's property.
56. Defendant never disclosed its noncompliance with the plan.
57. Despite repeated notification of the problem, Defendant continued its trespass upon
the Plaintiff's property.
58. Upon learning the deficiencies of the original submitted plan for Phase III of The
Peninsula, Defendant revised the subdivision plan ("Revised Plan") to require construction of a pipe-
like concrete structure to direct the storm water flow into the Conodoguinet Creek.
59. Plaintiff believes, and therefore avers, that the structure is not being constructed in
9
accordance with the Revised Submitted Plan because it is not feasible to do so.
60. Defendant has submitted two separate plans for Phase III with which it has
purposefully not complied.
61. It is believed, and therefore averred, that the Revised Plan will not eliminate
Defendant's trespass onto Plaintiff's property.
62. Plaintiff is entitled to punitive damages from Defendant due to its reckless
indifference to Plaintiff's rights.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs, and requests punitive damages, as well as attorneys' fees
and costs as appropriate.
COUNT IV
DAMAGES - PRIVATE NUISANCE
63. Paragraphs 1 through 62 above are incorporated herein by reference as if fully
restated.
64. Defendant's actions constitute a private nuisance.
10
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs, and requests punitive damages, as well as attorneys' fees
and costs as appropriate.
NAUMAN, SNHTH, SHISSLER & HALL, LLP
/1112 el
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3`d Street, 18' Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For. SSGC, Inc. d/b/a Silver Spring Golf
Course
Dated: December e,, 2003
11
VERIFICATION
I, Dennis E. Boyle, on behalf of SSGC, Inc. d/b/a Silver Spring Golf Course, make the
following statements subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsifications
to authority, and do hereby state that the facts set forth in the foregoing Amended Complaint are true
and correct to the best of my knowledge, information and belief.
e7
Dennis E. Boyle
Dated: December &1-2003
12
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Petition for Leave to Amend Complaint in Equity was served by United States First Class Mail,
postage pre-paid, upon those person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12'h Floor
P. O. Box 1146
Harrisburg PA 17108-1146
L
Je/nice D. Hagstrom, g Assistant to
Dennis E. Boyle, Esquire
Dated: December 7q, 2003
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SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 03-5935 EQUITY
Defendant
ORDER
AND NOW this day of December, 2003, upon consideration of the Plaintiff's
Motion for Leave to Amend its Complaint in Equity, said motion is GRANTED.
By the Court,
Edward Guido, J.
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-5935 EQUITY
SAMPLE BRIDGE ASSOCIATES,
Defendant
ORDER
AND NOW this day of December, 2003, upon consideration of the Plaintiff's
Motion for Leave to Amend its Complaint in Equity, said motion is GRANTED.
By the Court,
Edward Guido, J.
5
Jack F. Hurley, Jr., Esquire
Attorney I.D. No. 24414
Timothy J. Nieman, Esquire
Attorney I.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 Defendant
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 2003-5935 EQUITY
ANSWER IN OPPOSITION TO PLAINTIFF'S MOTION
FOR LEAVE OF COURT TO AMEND COMPLAINT
AND NOW comes Defendant, Sample Bridge Associates ("Sample Bridge"), pursuant to
this Court's Rule to Show Cause dated January 2, 2004,1 by and through its undersigned
attorneys, and files this Answer in Opposition to Plaintiff's Motion for Leave of Court to Amend
Complaint, stating as follows:
1. Admitted in part, denied in part. It is admitted that Plaintiff filed a Complaint in
Equity on November 12, 2003 requesting injunctive relief and damages. It is specifically denied
that Sample Bridge violated the Storm Water Management Act ("SWMA"), 32 P.S. §§680.1 et
seq. or engaged in common law trespass or private nuisance. By way of further answer,
Plaintiffs Complaint seeks recovery for alleged damages suffered as a result of storm water
This Court's Order directed that an Answer to Plaintiff's rule to Show Cause should be filed within 15 days
of service of the Order. Sample Bridge timely filed an Answer. This Answer, however, was erroneously filed with
the earlier litigation involving these same parties, Docket No. 02-692. At this time, Sample Bridge is re-filing the
Answer in Opposition to Plaintiffs Request to Amend its Complaint at the proper docket number. Sample Bridge
contacted counsel for Plaintiff, Dennis Boyle, Esquire, and he does not oppose the filing of this Answer by Sample
Bridge.
500989.1
drainage from Sample Bridge's neighboring property. Plaintiff admits that he first experienced
this storm drainage approximately 7 years ago. (Deposition of Ted W. Ansel dated December
15, 2003, p. 11-12) (A copy of the Deposition is attached hereto as Exhibit "A"). Plaintiff failed,
however, to take any action whatsoever until filing a Civil Action, Docket No. 02-692, seeking
injunctive relief and damages in 2002. Sample Bridge filed an Answer in the Civil Action and
proceeded with discovery, but Plaintiff has done nothing to resolve the 2002 litigation. Instead,
Plaintiff filed this Equity Action in November, 2003, and moved for an injunction. While this
Court granted a temporary injunction, within minutes, Plaintiff agreed to dissolve the injunction
and requested a hearing. The hearing was originally scheduled for January 7, 2004, but, despite
Plaintiff's representations to this Court that it faced immediate, irreparable harm, Plaintiff agreed
to continue the hearing after failing to comply with Sample Bridge's discovery requests. Now,
approximately 8 years after the problem allegedly started, Plaintiff seeks leave to amend to add a
claim for punitive damages on the basis that Sample Bridge has acted "outrageously" and "in
reckless disregard of Plaintiffs rights." (Plaintiff's Motion, 1[2). Because Plaintiff has acted
intentionally to delay litigation of the issues surrounding its alleged claims and, as explained
below, Sample Bridge acted at all time in good faith, in compliance with applicable law and
cooperatively to attempt to resolve Plaintiff s concerns, this request should be denied.
2. Denied. It is specifically denied that Sample Bridge engaged in conduct that may
be characterized as outrageous or in reckless disregard of Plaintiffs rights as an adjoining
landowner. By way of further answer, in developing and constructing the residential subdivision
named "The Peninsula," including Phase III of the Peninsula, Sample Bridge acted at all times in
compliance with the Pennsylvania Municipalities Planning Code ("MPC"), 53 P.S. §§10101 et
sM., the SWMA and applicable ordinances. Sample Bridge also cooperated with the Silver
-2-
Spring Township ("Township") officials and engineers to ensure that the Peninsula, including
Phase III, complied with applicable law. Sample Bridge took time-consuming and expensive
steps to work with its engineers, DEP and the Township to prevent any adverse consequences to
neighboring landowners, including adverse consequences to Plaintiff as a result of storm water
changes. To date, despite this litigation and Plaintiff's allegations of outrageous and reckless
conduct, Plaintiff has been wholly unable to demonstrate any repair costs whatsoever for alleged
property damage as a result of construction of the Peninsula. (See Ansel Depo, p. 31-32 ). In
fact, in his deposition, Mr. Ansel testified that Plaintiffs only damages are amounts paid to
employees to remove debris. (Ansel Depo, pp. 28-29, 31). He concedes, however, that SSGC
did not keep records of this time and, instead, they would try to "reconstruct[ ]" these records.
(Ansel Depo, pp. 28-29). Plaintiff has not provided Sample Bridge with these reconstructed
records.
3. It is admitted that Sample Bridge has not filed an Answer to the Equity
Complaint. By way of further answer, Sample Bridge filed an Answer to the Complaint in the
Civil Action which contains nearly identical allegations.
4. Denied. It is specifically denied that Sample Bridge has engaged in conduct
causing damage to Plaintiffs property since the filing of the initial Complaint in this matter. By
way of further response, as stated above, Sample Bridge has continued to work with its engineers
and the Township to maintain compliance with the applicable statutes and ordinances, as well as
to prevent any damage to neighboring property owners from storm water runoff or other causes.
5. Denied as stated. It is admitted that Plaintiff has filed a request with this Court to
amend its Complaint to include a claim for punitive damages. It is specifically denied that
-3-
Plaintiff has properly alleged factual averments supporting a claim of punitive damages. It is
also specifically denied that Sample Bridge engaged in any conduct with respect to the
development and construction of the Peninsula for which it could be subject to a punitive
damage award. By way of further answer, Sample Bridge acted, at all times, in order to comply
with Pennsylvania law and applicable ordinances, as well as with high regard for the interests of
neighboring property owners.
6. Denied. It is specifically denied that the proposed Amended Complaint in Equity
does not alter the theory of the case or add causes of action. By way of further answer, Plaintiff
has, in fact, altered the theory of the case by include allegations of outrageous and intentional
conduct. Bellefonte Area Sch. Dist. v. Modemfold Indus., 24 Pa. D.&C. 3d 303, 306 (Centre
Cty. 1981). As a result, Plaintiff's motion will cause prejudice to Sample Bridge and should be
denied.
7. Denied. It is specifically denied that granting Plaintiff's Motion will not unduly
delay the proceedings in this case. As explained above, Plaintiff concedes that the alleged water
problem at issue in this litigation began approximately 8 years ago, but SSGC waited until 2002
to file a Civil Action. Then, instead of providing outstanding discovery requests and proceeding
to trial in that Action, Plaintiff filed a second Complaint, in equity, setting forth nearly identical
claims. Sample Bridge has incurred significant costs and fees in defending this litigation and
attempting to comply with the applicable storm water damage requirements. Despite these
efforts, SSGC now seeks to amend its second complaint in order to add a claim for punitive
damages. If permitted to amend the Complaint to add claims for punitive damages, Sample
Bridge will be compelled to engage in additional discovery and conduct further depositions
where Plaintiff has failed to produce any proof -- in 8 years -- that it has incurred damages. In
-4-
fact, Mr. Ansel admits, in his deposition, that SSGC failed to provide all documents in its
possession responsive to Sample Bridge's discovery requests, demonstrating its further bad faith
in causing delay and preventing resolution of these actions. (Ansel Depo, p. 24-25, 26-27).
Plaintiff has still not provided these documents. Allowing Plaintiff to amend its Complaint will
simply cause further, unnecessary delay in resolution of this action, as well as unnecessary costs
to Sample Bridge.
8. Denied. It is specifically denied that the amendment to aver facts to support the
claim for punitive damages alters only the type of recovery sought and does not allege a new
cause of action or Sample Bridge's theory of defense. By way of further answer, if permitted to
amend the Complaint, Plaintiff will alter the theory of the case by including allegations of
outrageous and intentional conduct although Plaintiff has failed to produce any evidence
whatsoever that Sample Bridge acted wantonly, willfully, recklessly or in disregard of Plaintiffs
rights. These allegations will require Sample Bridge to alter its theories of defense and result in
unnecessary costs and delay. Bellefonte Area Sch. Dist., 24 Pa. D.&C. 3d at 306. This is
especially unwarranted where Plaintiff has failed to cooperate in discovery requests in the Civil
Action and caused delay in the hearing in this action by failing to schedule the continued
deposition of Mr. Ansel.
10.2 Denied. It is specifically denied that Sample Bridge is not prejudiced or surprised
by the amendment. Sample Bridge filed an Answer denying the allegations of the Complaint in
the Civil Action which alleged nearly identical facts. By way of further answer, Sample Bridge
will be prejudiced by the amendment as it will result in further delay, compel Sample Bridge to
Z Plaintiff's Motion omits Paragraph No. 9 and, for convenience, Sample Bridge's Answer follows Plaintiffs
numbering.
-5-
alter its defenses in this case and incur further costs to conduct discovery regarding Plaintiff's
new theories. As a result, the Motion should be denied.
11. Denied. It is specifically denied that the statute of limitations is not a bar to this
amendment because Plaintiff's injury is of a continuing nature. Cases interpreting Pennsylvania
law are clear that where, as here, a plaintiff has alleged that a single act -- in this case
development of Phase III -- results in damage to a neighboring landowner's property, it
constitutes a permanent trespass. Dombrowski v. Gould Elec.. Inc., 954 F. Supp. 1006, 1012
(M.D. Pa. 1996). While Plaintiff alleges continuing harm from this single act, Plaintiff has not
properly alleged a continuing trespass. Because Plaintiff knew, as early as 1996, of the
conditions causing the alleged damages, Plaintiff's claims are barred. Id. at 1012.
12. Admitted. Sample Bridge opposes Plaintiff's request to amend the Complaint to
include a claim for punitive damages insofar as it will cause undue delay and expense.
Plaintiffs Motion is especially problematic where, as here, Plaintiff has failed to produce any
evidence that Sample Bridge's construction caused damages or that Sample Bridge acted
recklessly, willfully, or wantonly. (See Ansel Depo, pp. 28-43) (explaining only damages are
labor costs, but that he has no record of those amounts). Pennsylvania law does not permit the
recovery of punitive damages for negligence, mistake or errors of judgment. Martin v. Johns-
Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). Pennsylvania law also precludes the
recovery of punitive damages where a party cannot first prove actual, compensatory damages.
Smith v. Grab, 705 A.2d 894, 901 (Pa. Super. 1997); Bruce Lincoln-Mercury, Inc. v. Universal
C.I.T. Credit Corp., 325 F.2d 2, 22 (3d Cir. 1963).
Sample Bridge has fully complied with the applicable laws, regulations and ordinances
since the start of development of the Peninsula. Further, Sample Bridge has obtained all
-6-
necessary permits and approvals, including preliminary and final subdivision approval, erosion
and sedimentation control permits and an NPDES permit necessary for the construction of the
Peninsula, including Phase III. Plaintiff admits that Sample Bridge obtained the necessary
subdivision approval for Phase 111. (Complaint, ¶18). Sample Bridge has also worked closely
with Township officials, DEP and the Cumberland County Conservation District in developing
the Peninsula in conformance with Pennsylvania law. Sample Bridge has acted professionally
and with utmost cooperation in developing and constructing the Peninsula and, despite
discovery, Plaintiff has produced no evidence whatsoever to indicate outrageous conduct. Under
the current facts, Sample Bridge's alleged conduct as set forth in the Complaint and proposed
amended complaint fails to rise to the level of outrageous conduct necessary for recovery of
punitive damages. Jean Anderson Hierarchy of Agents V. Allstate Life Ins Co., 2 F. Supp. 2d
688, 694 (E.D. Pa. 1998); Ivins v. Celotex Corp., 115 F.R.D. 159, 162 (E.D. Pa. 1986). As a
result, Plaintiff's Motion should be denied.
WHEREFORE, Defendant Sample Bridge Associates respectfully requests that the Court
deny Plaintiff s Motion for Leave of Court to Amend Complaint.
Respectfully submitted,
RHOADS & SINON LLP
By. D
Jack F. Hurley, Jr., Esquire
Timothy J. Nieman, Esquire
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendant
-7-
Ol/,?6/04 14:47 FAX 717 201 0026 RHOADS&SINON UP ¢1009
VERIFICATION
Joseph D_ Snyder, deposes and says, subject to the penalties of 18 Pa.C.SA. § 4904
relating to unworn falsification to authorities, that he is the President of Sample Bridge, Inc.,
general partner of Sample Bridge Associates, that he makes this verification by its authority and
that the facts set forth in the foregoing Answer in Opposition to Plaintiff's Motion for Leave to
Amend Complaint are true and correct to the best of his knowledge, information and belief.
Dated v? Joseph D. Snyder
CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of February, 2004, a true and correct copy of the
foregoing Answer in Opposition to Plaintiff's Motion for Leave of Court to Amend Complaint
was served by means of United States mail, first class, postage prepaid, upon the following:
Dennis E. Boyle, Esquire
Nauman, Smith, Shissler & Hall, LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, Pennsylvania 17108-0840
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SSGC, INC. d/b/a : IN THE COURT OF COMMON PLEAS OF
SILVER SPRING : CUMBERLAND COUNTY, PENNSYLVANIA
GOLF COURSE
V.
SAMPLE BRIDGE
ASSOCIATES NO. 2003-5935 EQUITY
ORDER OF COURT
AND NOW, this 20' day of FEBRUARY, 2004, upon consideration of
Plaintiff's Motion for Leave of Court to Amend Complaint as well as Defendant's
Answer thereto, said motion is GRANTED. Plaintiff is granted leave to file the
amended complaint attached as Exhibit B to its motion within twenty (20) days.
By the ,
Edward E. Guido, J.
Dennis E. Boyle, Esquire
P.O. Box 840
200 North 3rd Street
Harrisburg, Pa. 17108
Timothy ]. Nieman, Esquire
P.O. Box 1146
One S. Market Square
Harrisburg, Pa. 17108
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SSGC, INC. d/b/a SILVER SPRING IN THE COURT OF COMMON PLEAS,
GOLF COURSE, CUMBERLAND COUNTY
Plaintiff
V. NO. 03-5935 EQUITY
SAMPLE BRIDGE ASSOCIATES,
Defendant
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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator, 4' Floor
Cumberland County Courthouse
1 Courthouse Square
Carlisle PA 17013
Telephone: (717) 240-6200
NOTICIA
Le ban demandado a usted.en, la, corte. Si usted quiere, defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene veinte (20) dial de plazo al partir de fa fecha de la
demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por aboado
y archivar en ]a corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su
persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden
contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion
de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE
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ASISTENCIA LEGAL.
Court Administrator, 4`" Floor
Cumberland County Courthouse
1 Courthouse Square
Carlisle PA 17013
Telephone: (717) 240-6200
NAUMAN, SMITH, SHISSLER & HALL, LLP
I
Dennis E. Boyle, EscMre
Supreme Court I.D. No. 49618
200 N. 3ro street, I8" Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For. SSGC, Inc. d/b/a Silver Spring Golf
Course
Dated: March 1, 2004
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 03-5935 EQUITY
AMENDED COMPLAINT
AND NOW comes the Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, by and through
its counsel, Nauman, Smith, Shissler & Hall, LLP, and complains as follows:
1. Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, is a Pennsylvania corporation
whose principal place of business is located at 136 Sample Bridge Road, Mechanicsburg,
Cumberland County, Pennsylvania.
2. Defendant, Sample Bridge Associates, is a limited partnership with its principal place
of business located at 6570 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania.
3. Plaintiff is and, at all times relevant hereto, was the sole owner in fee and in sole
possession of a certain lot situated in Cumberland County, Pennsylvania, and is described as follows:
BEGINNING at a point at the western end of Sample Bridge, said
point also being in the center line of Township Road T-596 (Sample
Bridge Road); thence along the center line of said Township Road T-
596 the following three courses and distances: 1) North 52'06' West
a distance of 249.28 feet, 2) North 24° 50' West a distance of 1773.50
feet, 3) North 07° 22' West a distance of 821 feet to a point on line of
other lands of the Grantor herein; thence along the line of other lands
of the Grantor herein, the following five courses and distances: 1)
North 44° 13' East a distance of 423.30 feet, 2) South 89° 57' East a
distance of 430 feet, 3) North 03° 13' East a distance of 1335 feet, 4)
North 29° 23' East a distance of 615 feet, 5) North 87° 23' 30" East
a distance of 598.14 feet to a point in or along the Conodoguinet
Creek; thence in or along the Conodoguinet Creek the following
eleven courses and distances: 1) South 32° 18' West a distance of
446.51 feet, 2) South 09° 31' West a distance of 487.82 feet, 3) South
01° 33' East a distance of 737.78 feet, 4) South 02° 01' West a
distance of 866.49 feet, 5) South 03° 20' East a distance of 411.86
feet, 6) South 10°07' East a distance of 564.14 feet, 7) South 11052'
30" West a distance of 238.97 feet, 8) South 23° 47' 30" West a
distance of 422.40 feet, 9) South 14° 57' West a distance of 508.52
feet, 10) South 14° 12' West a distance of 139.05 feet, 11) South 01°
23' East a distance of 130.26 feet to a point on Sample Bridge, said
point being in the center line of Township Road T-596, thence along
the center line of T-596 North 56° 44' West a distance of 55 feet to
a point, the place of BEGINNING
CONTAINING 90.63 acres.
BEING part of the same premises which Summit Corporation by its
deed dated October 16, 1963, recorded in the Office of the Recorder
of Deeds in and for Cumberland County, Pennsylvania, in Deed Book
A-21, Page 107, granted and conveyed unto Silver Spring Inc.,
Grantor herein.
4. Plaintiff is in the business of operating a recreational golf course open to the public.
5. Defendant is a developerthat has developed and constructed a residential subdivision
named "The Peninsula." Phase III of The Peninsula is located on lands west of the Plaintiff's lands
and burdening the Plaintiff's land as described above.
6. The elevation of The Peninsula Phase III is higher than the elevation of the Plaintiff's
property as described above, and water has always naturally drained from the Defendant's property
onto that of the Plaintiff.
7. In the course of developing The Peninsula Phase III, Defendant has fundamentally
altered the nature and character of the land converting a rural and undeveloped field into a residential
development. Defendant has changed the landscape and constructed a system of roadways in The
Peninsula. In addition, Defendant has constructed large residential units, garages, impervious
driveways and diverted the rainwater into storm water collection systems which are ultimately
directed and discharged upon the lands of the Plaintiff as described in Paragraph 3 above.
8. The system of highways contains impervious covering which gathers storm water
from the entire development and channels it into three artificial structures in The Peninsula.
9. The storm water is then funneled onto Plaintiff's property at three (3) different
locations, in greater volume and at higher velocity than existed prior to the construction of The
Peninsula.
10. The storm water unnaturally forced upon Plaintiff's property by Defendant has
washed, and continues to wash, limestone ballast, rocks, trees, branches, cans, bottles and other
debris onto the property of the Plaintiff.
11. The storm water unnaturally forced upon Plaintiff's property by Defendant has caused
and continues to cause deep erosion to Plaintiff's property.
12. The storm water unnaturally forced upon Plaintiff's property by Defendant has caused
and will continue to cause the siltation of non-navigable water courses on Plaintiff's property.
COUNTI
IN.IUNCTIVE RELIEF
13. Paragraphs 1 through 12 above are incorporated herein by reference as if fully
restated.
14. Plaintiff has on diverse occasions brought the above-described circumstances to the
attention of the Defendant and its representatives; however, Defendant has indicated by its actions
that it does not intend to refrain from its wrongful and illegal discharge of storm waters upon the
lands of the Plaintiff as described above.
3
15. On numerous occasions, particularly after storms or other wet weather events,
Plaintiff has observed debris and other materials carried by streams from the Defendants Peninsula
development and ultimately washed upon his property causing erosion to his soils, damage to the
golf course fairway and other plantings and siltation of non-navigable water course.
16. It is believed and therefore averred that the damage suffered by the Plaintiff will
continue into the future unless the Defendant's conduct is abated by this Honorable Court.
17. Although it is possible for employees and contractors of the Plaintiff to temporarily
rectify the damages caused by the Defendant, this procedure can cost thousands of dollars per
incident, disrupt operations of the Plaintiff, damage the aesthetic appearance of the golf course and
inconvenience the golf course patrons.
18. On or about January 26,1995, Defendant filed an Application for Land Development
and Subdivision Approval for The Peninsula, which was subsequently approved by Silver Spring
Township, Cumberland County, Pennsylvania. A copy of said Application is attached hereto and
marked as Exhibit "A".
19. In the application process, Defendant represented that its land development and
subdivision plan would not alter or increase the flow of storm water onto the premises of the
Plaintiff.
20. Contrary to these representations contained in Exhibit "A", Defendant has increased
both the amount and character of the storm water.
21. hi the Spring of 2002, Defendant applied for and received approval for a change to
its previous plan for Phase III of The Peninsula Subdivision effecting Lots 15 and 16.
22. This new plan called for the construction of an underground storm water collection
facility and the installation of a rock lined swale on steep slope (up to 70 degrees) on land adjacent
to the Plaintiff's.
23. During the approval hearing, Defendant represented that:
a. few trees would be removed;
b. the area of disturbance on the steep slopes would be limited to 20 feet in
width; and,
c. there would not be a need for construction equipment to enter onto the steep
slopes.
24. Contrary to these assertions, however, Defendant does intend to use heavy
construction equipment on the steep slope. It also anticipates the construction of benches and trails
to accommodate this equipment and the removal of a large number of trees on the steep slopes.
25. The installation of the rock lined swale envisioned in Phase III will require a
disturbance area that greatly exceeds the 20 feet presented to the Township by the Defendant.
26. Even if the revised subdivision could be built, the storm water discharge would
nevertheless exceed pre-development levels by a volume of more than two to one.
27. Proceeding with the development of Phase III will irreparably harm the Plaintiff.
28. Plaintiff has no adequate remedy at law.
29. Plaintiff has suffered and will continue to suffer irreparable harm if Defendant's
wrongful and tortious conduct as described above is permitted to continue. The ongoing costs of
Plaintiff repairing damages caused by Defendant together with the loss of the aesthetic value of the
property and lost revenues from the disruption of business operations is not capable of precise
calculation.
5
30. In any event, Defendants wrongful and tortious conduct is continuing in nature in that
every storm or other wet water event results in an erosion of the golf course and a new discharge of
debris and other material onto the property of the Plaintiff.
31. Due to the topography of the tracts of the Plaintiff and Defendant, it is physically not
possible to erect a barrier on Plaintiff's and Defendant's property line that would prevent damage
to Plaintiff's property.
32. Plaintiff has no adequate remedy at law, and its interest and those of the public can
only be protected by requiring Defendant to cease interference with Defendant's property.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, prays that this Court:
A. Preliminarily and permanently enjoin Defendant from interfering with its property
right;
B. Preliminarily and permanently enjoin Defendant from discharging storm water in
excess of that which occurred naturally prior to the construction of The Peninsula
development;
C. Require Defendant to submit a Subdivision Plan for Phase III that complies with all
local ordinances and protects Plaintiff's property rights;
D. Grant Plaintiff attorneys' fees and costs, and such other and further relief as this
Court deems necessary and appropriate.
COUNT II
DAMAGES - STORM WATER MANAGEMENT ACT
32 P.S. 680.1 et sea, and Silver Spring Township
Storm Water Management Ordinance of 1995
33. Paragraphs 1 through 32 above are incorporated herein by reference as if fully
restated.
34. This is a claim for damages pursuant to the Storm Water Management Act
("SWMA"), 32 P.S. §680.1 et seq., and the Silver Spring Township Storm Water Management
Ordinance of 1995 which Plaintiff has suffered by reason of Defendant's repeated, unwarranted and
illegal interference with its property rights as described above.
35. Beginning in 1996 and continuing until the present, Defendant, with force and arms,
and without Plaintiff's permission, caused and continues to cause Plaintiff's lot to be entered,
disturbed, injured and spoiled the soil, grass and plantings then and there growing.
36. Defendant's trespass has on multiple occasions damaged the golf course through
erosion and by depositing stone, rocks and other debris on the Plaintiff's lot causing both physical
and aesthetic damage to Plaintiff's property.
37. Defendant's trespass has also caused damage to anon-navigable watercourse located
on Plaintiff's property.
38. As a result of the aforesaid, Defendant has caused damage to Plaintiff's property in
an amount to be determined by the Court.
39. As a result of the aforesaid, Defendant has caused Plaintiff to lose business
opportunities and customers.
40. Defendant's actions violate the Storm Water Management Act, 32 P.S. §§ 680.1 et
seq.. Pursuant to 32 P.S. § 680.15 and the Silver Spring Township Storm Water Management
Ordinance, Plaintiff is entitled to damages from Defendant.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
7
$25,000.00, exclusive of interest and costs, as well as attorneys' fees and costs as appropriate.
COUNT III
DAMAGES - COMMON LAW TRESPASS
41. Paragraphs 1 through 40 above are incorporated herein by reference as if fully
restated.
42. Defendant's actions constitute common law trespass.
43. Defendant has known that its construction has caused significant damage to Plaintiff's
property for years through its trespass of excessive storm water, and has continued its destructive
activities in reckless disregard for Plaintiff's property rights.
44. To gain approval for its development of Phase III, Defendant misrepresented critical
facts to the Township upon its Subdivision Plans and through oral representations at Township
meetings.
45. Defendant knowingly misrepresented that it held an easement across Plaintiffs
property that would be utilized to manage the storm water flow.
46. Defendant does not, and never did, have an easement across Plaintiff's property for
storm water purposes.
47. Defendant failed to accurately account for the damage its construction would cause
to Plaintiff in the Original Subdivision Plan it submitted to the Township for Phase III.
48. Defendant misrepresented that the storm water would be able to flow into a
purportedly preexisting pond on Plaintiffs property.
49. At the time of its submission of the Original Subdivision Plan, Defendant was aware
that there was no pond on Plaintiff's property at the represented location, and that in fact the storm
8
water flow was instead directed to pool on the ladies' tee.
50. Plaintiff had informed Defendant of the pooling of water on its ladies' tee on several
separate occasions.
51. Defendant refused to reconfigure the direction of storm water, or otherwise address
the excessive damage upon Plaintiff's property, despite its awareness of the trespass and plan
violation.
52. Defendant's intentional misrepresentations of its relationship to Plaintiff's property,
and continued and knowing invasion of Plaintiff's property constitutes outrageous conduct.
53. Defendant also represented to the Township that it would construct a pipeline to carry
storm water from another section of its development to a location on its property adjacent to the
Conodoguinet Creek.
54. After obtaining plan approval based upon this representation, Defendant through its
agents, directed its contractor not to construct the pipe as approved.
55. Instead, the pipe was terminated in a ravine that discharged water and silt onto
Plaintiff's property.
56. Defendant never disclosed its noncompliance with the plan.
57. Despite repeated notification of the problem, Defendant continued its trespass upon
the Plaintiff's property.
58. Upon learning the deficiencies of the original submitted plan for Phase III of The
Peninsula, Defendant revised the subdivision plan ("Revised Plan") to require construction of a pipe-
like concrete structure to direct the storm water flow into the Conodoguinet Creek.
59. Plaintiff believes, and therefore avers, that the structure is not being constructed in
9
accordance with the Revised Submitted Plan because it is not feasible to do so.
60. Defendant has submitted two separate plans for Phase III with which it has
purposefully not complied.
61. It is believed, and therefore averred, that the Revised Plan will not eliminate
Defendant's trespass onto Plaintiff's property.
62. Plaintiff is entitled to punitive damages from Defendant due to its reckless
indifference to Plaintiff's rights.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs, and requests punitive damages, as well as attorneys' fees
and costs as appropriate.
COUNT IV
DAMAGES - PRIVATE NUISANCE
63. Paragraphs 1 through 62 above are incorporated herein by reference as if fully
restated.
64. Defendant's actions constitute a private nuisance.
10
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, demands judgment
in his favor and against the Defendant, Sample Bridge Associates, in an amount in excess of
$25,000.00, exclusive of interest and costs, and requests punitive damages, as well as attorneys' fees
and costs as appropriate.
NAUMAN, SMITH, SHISSLER & HALL, LLP
f2 e?
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3'd Street, 18' Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For. SSGC, Inc. d(b/a Silver Spring Golf
Course
Dated: December 1e2003
11
VERIFICATION
I, Dennis E. Boyle, on behalf of SSGC, Inc. d/b/a Silver Spring Golf Course, make the
following statements subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsifications
to authority, and do hereby state that the facts set forth in the foregoing Amended Complaint are true
and correct to the best of my knowledge, information and belief.
- z? I
Dennis E. Boyle
Dated: December Jam:, 2003
12
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Amended Complaint in Equity was served by United States First Class Mail, postage pre-paid,
upon those person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12th Floor
P. O. Box 1146
Harrisburg PA 17108-1146
I L%
J ice D. Hagstrom, Assistant to
emus E. Boyle, Esquire
Dated: March 1, 2004
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SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-5935 EQUITY
SAMPLE BRIDGE ASSOCIATES
Defendant
STIPULATION RE: MOTIONS TO COMPEL AND CONSOLIDATION OF CASES
Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, and Defendant, Sample Bridge
Associates, by and through their undersigned attorneys, stipulate as follows:
1. Plaintiff initiated an action at law (the "Action at Law") against Defendant on or
about February 7, 2002. The action at law is docketed with this Court at number 02-692 LAW.
2. Plaintiff initiated the instant equity action (the "Equity Action") or about
November 12, 2003.
3. Both the Action at Law and the Equity Action involve claims arising from storm
water runoff from Defendant's property onto Plaintiff s property.
4. On or about February 24, 2004, Defendant filed a Motion to Compel.
5. On or about March 2, 2004, Plaintiff filed its Response to Defendant's Motion to
Compel and filed its own Motion to Compel.
6. The parties have agreed to resolve the Motions to Compel by establishing a
discovery deadline and a date certain for the exchange of expert reports. Specifically, the parties
have agreed on an April 30, 2004 discovery deadline with expert report due thirty days
thereafter.
7. This agreement moots the Plaintiff s and Defendant's Motions to Compel.
509341.1
8. Further, the parties agree that the Action at Law and the Equity Action should be
consolidated pursuant to Pa.R.Civ.P. 213 since both actions involve common questions of law
and fact and arise from the same alleged transactions and occurrences. The consolidated actions
should proceed at docket number 03-5935 EQUITY.
WHEREFORE, Plaintiff and Defendant respectfully requests that the Court enter an
Order consolidating the Action at Law and the Equity Action and establishing an April 30, 2004
discovery deadline in consolidated action with expert reports due thirty days thereafter.
Respectfully submitted,
NAUMAN, SMITH, SHISSLER & HALL,
LLP
By: /;L co a=
Dennis E. Boyle, Esquire
Lucinda C. Glinn, Esquire
200 N. 3rd Street, 18th Floor
P. O. Box 840
Harrisburg, PA 17108-0840
(717) 236-3010
Attorneys for Plaintiff
RHOADS & SINON LLP
By: . ye- ?
Jack F. Hurle, Jr., Esquire
Timothy J. Nieman, Esquire
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendant
CER?T}ILFICATE OF SERVICE
I hereby certify that on this A day of March, 2004, a true and correct copy of the
foregoing document was served by means of United States mail, first class, postage prepaid,
upon the following:
Dennis E. Boyle, Esquire
Nauman, Smith, Shissler & Hall, LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, Pennsylvania 17108-0840
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Jack F. Hurley, Jr., Esquire
Attorney I.D. No. 24414
Timothy J. Nieman, Esquire
Attorney I.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 Defendant
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES
Defendant
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lbu are Hereby Noll To Plead
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION EQUITY
NO. 03-5935 EQUITY
ANSWER AND NEW MATTER
AND NOW comes Defendant, Sample Bridge Associates, by and through its undersigned
attorneys, and files this Answer and New Matter, stating as follows:
1. Admitted on information and belief.
2. Admitted.
After reasonable investigation, Defendant is unable to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same.
4. Admitted.
It is admitted that Defendant is a developer that has developed and constructed a
residential subdivision named "The Peninsula" and that Phase III: of the Peninsula is located on
lands west of Plaintiff's lands. Sample Bridge, Inc. has obtained Defendant's interest in this
development. The remaining allegations of this Paragraph are denied.
6. Admitted.
420634.2
7. Admitted in part and denied in part. It is admitted that Defendant constructed a
system of roadways in the Peninsula. It is also admitted that Defendant has built a storm water
collection system. The remaining allegations of this Paragraph are denied. To the contrary, the
Defendant has complied with all applicable laws and regulations in designing and installing its
storm water collection system. Additionally, Defendant's storm water management system,
which has been approved by the appropriate governmental bodies, complies with the legal
standards applicable to storm water run-off and is designed to appropriately deal with storm
water run-off from Defendant's property. Finally, entities other than Defendant built residential
units, garages and driveways in the Peninsula.
8. Denied. While the stone water for the Peninsula, development drains into three
artificial structures, only two of these structures drain onto Plaintiff's property. By way of
further answer, Defendant's stone water removal system complies with all applicable laws and
regulations.
9. Admitted in part and denied in part. It is admitted that the storm water from the
Peninsula enters the Plaintiff's property at two locations, not three as alleged by Plaintiff. The
remaining allegations are denied. To the contrary, Defendant's storm water management system,
which has been approved by the appropriate governmental bodies, complies with the legal
standards applicable to storm water run-off and is designed to appropriately deal with storm
water run-off from Defendant's property.
10. After reasonable investigation, Defendant is unabile to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same. By way of further
answer, it is denied that Defendant caused any damage to Plaintiff's property. To the contrary,
Defendant's storm water management system, which has been approved by the appropriate
governmental bodies, complies with the legal standards applicable to storm water run-off and is
designed to appropriately deal with storm water run-off from Defendant's property.
11. After reasonable investigation, Defendant is unable to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same. By way of further
answer, it is denied that Defendant caused any damage to Plaintiff's property. To the contrary,
Defendant's storm water management system, which has been approved by the appropriate
governmental bodies, complies with the legal standards applicable to storm water run-off and is
designed to appropriately deal with storm water run-off from Defendant's property.
12. After reasonable investigation, Defendant is unable to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same. By way of further
answer, it is denied that Defendant caused any damage to Plaintiffs property. To the contrary,
Defendant's storm water management system, which has been approved by the appropriate
governmental bodies, complies with the legal standards applicable to storm water run-off and is
designed to appropriately deal with storm water run-off from Defendant's property.
COUNTI
INJUNCTIVE RELIEF
13. Paragraphs 1 through 12 above are incorporated herein by reference.
14. It is admitted that Plaintiff has alleged that storm water was draining on to its
property. The remaining allegations of this Paragraph are denied. To the contrary, Defendant
has not wrongfully or illegally discharged storm water upon the Plaintiffs property. To the
contrary, Defendant's storm water management system, which has been approved by the
appropriate governmental bodies, complies with the legal standards applicable to storm water
run-off and is designed to appropriately deal with storm water run-off from Defendant's
property. Additionally, Defendant's storm water removal system complies with all applicable
laws and regulations. Further, Defendant has repeatedly tried to reach an agreement with
Plaintiff concerning its allegations concerning storm water run-off. However, owing to
Plaintiff's failure to provide requested information concerning alleged damages and/or to discuss
reasonable alternatives, an agreement has not been reached.
15. After reasonable investigation, Defendant is unable to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same. By way of further
answer, it is denied that Defendant caused any damage to Plaintiff s property. To the contrary,
Defendant's storm water management system, which has been approved by the appropriate
governmental bodies, complies with the legal standards applicable to storm water run-off and is
designed to appropriately deal with storm water run-off from Defendant's property. Further, the
Plaintiff has provided Defendant with little, if any evidence, to support this allegation.
16. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, and as stated above, Defendant has not damaged Plaintiff.
17. After reasonable investigation, Defendant is unable to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same. By way of further
answer, it is denied that Defendant caused any damage to Plaintiff s property. To the contrary,
Defendant's storm water management system, which has been approved by the appropriate
governmental bodies, complies with the legal standards applicable to storm water run-off and is
designed to appropriately deal with storm water run-off from Defendant's property.
Additionally, it is specifically denied that it costs thousands of dollars to clean-up after the
alleged incidents. To the contrary, information provided by Plaintiff estimates that Plaintiff has
spent approximately $10,000 since 1997 cleaning up debris that allegedly comes from
Defendant's property.
18. Admitted. By way of further answer, the document referenced in this Paragraph,
being a writing, speaks for itself.
19. Denied. To the contrary, Defendant does not recall this question being asked at a
public meeting.
20. Denied. To the contrary, Defendant's storm water management system, which has
been approved by the appropriate governmental bodies, complies with the legal standards
applicable to storm water run-off and is designed to appropriately deal with storm water run-off
from Defendant's property. Additionally, Defendant's storm water management system
complies with all applicable laws and regulations. The document referenced in this Paragraph,
being a writing, speaks for itself and contains no representation concerning the flow of storm
water onto Plaintiff's property. Finally, Plaintiff never appealed the Township's approval of
Defendant's Application for Land Development and Subdivision Approval.
21. Admitted. By way of further answer, Plaintiff never appealed the Township's
approval of the plan change referenced in this Paragraph.
22. The plan, being a writing, speaks for itself.
23. Denied. To the contrary, it was made known that some trees would be removed
to construct this system and that equipment would operate on the slope.
24. It is admitted that the excavator working for Defendant has used heavy
construction equipment on the slope and removed some trees in the process of installing the
storm water management system referenced in this Paragraph. Further, the construction
referenced in this Paragraph has been conducted in a safe manner without incident and has in no
way damaged Plaintiff. Finally, the work on this system has occurred on Defendant's property
and any disturbance has occurred only on Defendant's property.
25. Denied. To the contrary, the disturbance area referenced in this Paragraph is
approximately twenty feet in width and is entirely on Defendant's property.
26. Denied. To the contrary, the expert report provided by Plaintiff concerning this
revised subdivision plan admits that the storm water management system will decrease the
velocity of the storm water discharge to predevelopment levels and only questions whether the
rate of discharge will be decreased.
27. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent a response is deemed appropriate, these allegations are denied. To the
contrary, Defendant has not injured Plaintiff.
28. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent a response is deemed appropriate, these allegations are denied. To the
contrary, Defendant has not injured Plaintiff. Further, even if Plaintiff has been damaged -
which is specifically denied - such injury can be compensated by money damages.
29. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, and as stated above, Defendant has not damaged Plaintiff.
30. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, and as stated above, Defendant has not damaged Plaintiff.
31. After reasonable investigation, Defendant is unable to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same.
32. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, to the extent that Plaintiff is entitled to relief - which Defendant specifically denies
- Plaintiff can be compensated by money damages.
WHEREFORE, Defendant respectfully requests that the Court enter judgment in its favor
and grant such other relief as the Court deems proper.
COUNT II
DAMAGES - STORM WATER MANAGEMENT ACT
33. Paragraphs 1 through 32 above are incorporated herein by reference.
34. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, the Defendant has complied with all applicable laws and regulations in designing
and installing its storm water management system. Additionally, Defendant's storm water
management system, which has been approved by the appropriate governmental bodies,
complies with the legal standards applicable to storm water run-off and is designed to
appropriately deal with storm water run-off from Defendant's property.
35. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, the Defendant has complied with all applicable laws and regulations in designing
and installing its storm water management system. Additionally, Defendant has transferred its
interest in the Peninsula development to Sample Bridge, Inc. Finally, Defendant's storm water
management system, which has been approved by the appropriate: governmental bodies,
complies with the legal standards applicable to storm water run-off and is designed to
appropriately deal with storm water run-off from Defendant's property.
36. The allegations of this Paragraph are legal conclusions to which no response is
required. After reasonable investigation, Defendant is unable to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same. By way of further
answer, it is denied that Defendant caused any damage to Plaintiffs property. To the contrary,
Defendant's storm water management system, which has been approved by the appropriate
governmental bodies, complies with the legal standards applicable to storm water run-off and is
designed to appropriately deal with storm water run-off from Defendant's property.
37. The allegations of this Paragraph are legal conclusions to which no response is
required. After reasonable investigation, Defendant is unable to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same. By way of further
answer, it is denied that Defendant caused any damage to Plaintiiffs property. To the contrary,
Defendant's storm water management system, which has been approved by the appropriate
governmental bodies, complies with the legal standards applicable to storm water run-off and is
designed to appropriately deal with storm water run-off from Defendant's property.
38. The allegations of this Paragraph are legal conclusions to which no response is
required. After reasonable investigation, Defendant is unable to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same. By way of further
answer, it is denied that Defendant caused any damage to Plaintiffs property. To the contrary,
Defendant's storm water management system, which has been approved by the appropriate
governmental bodies, complies with the legal standards applicable to storm water run-off and is
designed to appropriately deal with storm water run-off from Defendant's property.
39. The allegations of this Paragraph are legal conclusions to which no response is
required. After reasonable investigation, Defendant is unable to determine whether the
allegations of this Paragraph are true or false and, as such, denies the same. By way of further
answer, it is denied that Defendant caused any damage to Plaintiff's property and/or business.
To the contrary, Defendant's storm water management system, which has been approved by the
appropriate governmental bodies, complies with the legal standards applicable to storm water
run-off and is designed to appropriately deal with storm water run-off from Defendant's
property.
40. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. By
way of further answer, it is denied that Defendant caused any damage to Plaintiff's property. To
the contrary, Defendant's storm water management system, which has been approved by the
appropriate governmental bodies, complies with the legal standards applicable to storm water
run-off and is designed to appropriately deal with storm water run-off from Defendant's
property.
WHEREFORE, Defendant respectfully requests that the Court enter judgment in its favor
and grant such other relief as the Court deems proper.
COUNT III
DAMAGES - COMMON LAW TRESPASS
41. Paragraphs 1 through 40 above are incorporated herein by reference.
42. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. By
way of further answer, it is denied that Defendant caused any damage to Plaintiff's property or
trespassed on Plaintiff's land.
43. Denied. It is denied that Defendant's construction has caused significant, let
alone any, damage to Plaintiff's property for years through its alleged trespass of excessive storm
water and has continued its destructive activities in reckless disregard for Plaintiff's property
rights. To the contrary, Defendant has at all times acted reasonably and legally with respect to
any storm water draining from its land to Plaintiff's land. Further, Defendant has complied with
all applicable laws and regulations and has worked to address any concerns raised by Plaintiff.
Plaintiff's failure to initiate legal action for at least six years from the time that it admits it first
became aware of this alleged problem is further evidence that the alleged problem did not cause
significant damage to Plaintiffs land and was not destructive.
44. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent a response is deemed appropriate, these allegations are denied. To the
contrary, Defendant did not knowingly misrepresent facts to the Township.
45. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent a response is deemed appropriate, these allegations are denied. To the
contrary, Defendant did not knowingly misrepresent that it held an easement across Plaintiff's
property. Further, the owner of higher land has an easement in lower land for the discharge of
water that naturally flows or falls upon the higher land. By way of further answer, Plaintiff
failed to appeal the Township's decision to approve the preliminary plan.
46. Denied for the reasons stated in the preceding Paragraph.
47. Denied. To the contrary, the Defendant complied with all applicable laws,
regulations and requirements with respect to its storm water management plan.
48. Denied. To the contrary, the Defendant never knowingly misrepresented that the
storm water would be able to flow into a purportedly preexisting pond on Plaintiff's property.
49. Denied for the reasons stated in the preceding Paragraph.
50. Denied as stated. It is admitted that at some point over the past nine years,
Plaintiff, through its owner Ted Asnel, informed Defendant that storm water drained onto a
ladies tee. It is denied that such drainage was illegal or failed to comply with applicable laws
and regulations.
51. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, Defendant has repeatedly tried to work with Plaintiff to address Plaintiff's
concerns. When it became apparent that Plaintiff was not making a good faith effort to resolve
its alleged problems, Defendant submitted, and received Township approval for, the revised
storm water management plan referenced in Paragraphs 21 and 22 of Plaintiff s Amended
Complaint.
52. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, Defendant did not engage in any outrageous conduct with respect to its stone water
management plans and system and at all times obtained governmental approvals and tried to
work with Plaintiff to address his alleged concerns.
53. Admitted.
54. Admitted. The reason that construction of this pipe was halted because there was
additional water flowing onto the site from a pipe owned and maintained by the Township
located under Bali-Hai Road. Defendant intends to tie the two pipes together. Further, Plaintiff
has admitted that he suffered no damage as a result of the pipe not being completed.
55. Denied for the reasons stated in the preceding Paragraph.
56. Denied for the reasons stated in Paragraph 54 above. By way of further Answer,
both the Township and Plaintiff are aware of the alleged noncompliance with the plan averred in
this Paragraph.
57. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, Defendant did not trespass upon Plaintiff's property and at all times obtained
governmental approvals and tried to work with Plaintiff to address his alleged concerns.
58. After reasonable investigation, Defendant is unable to determine what Plaintiff is
referring to in this Paragraph and denies the same.
59. After reasonable investigation, Defendant is unable to determine what Plaintiff is
referring to in this Paragraph and denies the same.
60. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, Defendant has at all times obtained governmental approvals and tried to work with
Plaintiff to address his alleged concerns. Further, Defendant has at all times attempted to comply
with all plans for Phase III.
61. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. To
the contrary, Defendant has at all times obtained governmental approvals and tried to work with
Plaintiff to address his alleged concerns. Further, Defendant has at all times attempted to comply
with all plans for Phase III. Additionally, Defendant's storm water management system, which
has been approved by the appropriate governmental bodies, complies with the legal standards
applicable to storm water run-off and is designed to appropriately deal with storm water run-off
from Defendant's property.
62. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied.
WHEREFORE, Defendant respectfully requests that the Court enter judgment in its favor
and grant such other relief as the Court deems proper.
COUNT IV
DAMAGES - PRIVATE NUISANCE
63. Paragraphs I through 62 above are incorporated herein by reference.
64. The allegations of this Paragraph are legal conclusions to which no response is
required. To the extent that a response is deemed appropriate, these allegations are denied. By
way of further answer, it is denied that Defendant caused any damage to Plaintiff's property. To
the contrary, Defendant's storm water management system, which has been approved by the
appropriate governmental bodies, complies with the legal standards applicable to storm water
run-off and is designed to appropriately deal with storm water run-off from Defendant's
property. Additionally, Defendant's storm water management system complies with all
applicable laws and regulations.
WHEREFORE, Defendant respectfully requests that the Court enter judgment in its favor
and grant such other relief as the Court deems proper.
NEW MATTER
65. Paragraphs 1 through 64 above are incorporated herein by reference.
66. Plaintiffs Complaint fails to state a cause of action upon which relief can be
granted.
67. Plaintiff s Complaint fails, as a matter of law, to state a cause of action for injunctive
relief.
68. Plaintiff s Complaint fails, as a matter of law, to state a cause of action for violation
of the Storm Water Management Act.
69. Plaintiff's Complaint fails, as a matter of law, to state a cause of action for common
law trespass.
70. Plaintiffs Complaint fails, as a matter of law, to state a cause of action for private
nuisance.
71. Plaintiff has not alleged the requisite elements of a claim for injunctive relief.
72. Plaintiff has not alleged the requisite elements of a claim for violation of the
Storm Water Management Act.
73. Plaintiff has not alleged the requisite elements of a claim for common law
trespass.
74. Plaintiff has not alleged the requisite elements of a claim for private nuisance.
75. Plaintiff lacks standing to maintain its claims.
76. Plaintiff's claims are barred, in whole or in part, by the statute of limitations.
77. Plaintiff's claims are barred, in whole or in part, by the doctrine of laches.
78. Plaintiff's claims are bared, in whole or in part, by the doctrines of waiver and
estoppel.
79. Plaintiff's claims are barred, in whole or in part, by the doctrine of accord and
satisfaction.
80. Plaintiff's claims are barred, in whole or in part, by the doctrine of unclean hands.
81. Plaintiff's injunction claim is barred because the Plaintiff has an adequate remedy
at law.
82. Plaintiff has not suffered immediate and irreparable harm.
83. An injunction is improper in this case because it will cause greater harm to
Defendant.
84. In the event that Plaintiff has suffered damages, which is denied, such damages
were caused, in whole or in part, by the negligence or other actions of Plaintiff.
85. In the event that Plaintiff has suffered damages, which is denied, such damages
were caused, in whole or in part, by the acts of third parties, over whom Defendants had no
control.
86. Plaintiff failed to mitigate its damages.
87. This action should have been filed at law since it seeks money damages.
88. Plaintiff's claims are barred because Defendant failed to appeal the various plan
approvals outlined in the Amended Complaint.
89. Plaintiff's claims are barred by the doctrine of administrative finality.
90. Plaintiff's claims are barred by the vested rights doctrine.
91. Plaintiff has suffered no damages.
92. Defendant expressly reserves the right to raise additional defenses that become
known after discovery.
WHEREFORE, Defendant respectfully requests that the Court enter judgment in its favor
and grant such other relief as the Court deems proper.
Respectfully submitted,
RHOADS & SINON LLP
By:
Jack F. HLrle , Jr., Esquire
Timothy J. Nieman, Esquire
One South. Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendant
MAR-24-2004 WED 03;56 PM INTEGRATED PROPERTIES FAX NO. 7176979204
VERIFICATION
Joseph D. Snyder, deposes and says, subject to the penalties of 18 Pa.C.S.A. § 4904
relating to unworn falsification to authorities, that he is the president of Sample Bridge, Inc.,
general partner of Sample Bridge Associates, that he makes this 'verification by its authority and
that the facts set forth in the foregoing Answer and New Matter are true and correct to the best of
his knowledge, information and belief.
Date: b
P. 02
6TOM xoxts 8 SOtl01Ta OaL9L6S LTL Yv3 Wail 4002/91/r0
CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of March, 2004, a true and correct copy of the
foregoing Answer and New Matter was served by means of United States mail, first class,
postage prepaid, upon the following:
Dennis E. Boyle, Esquire
Nauman, Smith, Shissler & Hall, LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, Pennsylvania 17108-0840
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SSGC, INC. d/b/a/ IN THE COURT OF COMMON PLEAS OF
SILVER SPRING GOLF CUMBERLAND COUNTY, PENNSYLVANIA
COURSE,
Plaintiff
V. CIVIL ACTION - LAW
SAMPLE BRIDGE
ASSOCIATES,
Defendant NO. 02-0692 CIVIL TERM
SSGC, INC. d/b/a/ IN THE COURT OF COMMON PLEAS OF
SILVER SPRING GOLF CUMBERLAND COUNTY, PENNSYLVANIA
COURSE,
Plaintiff
V. CIVIL ACTION - EQUITY
SAMPLE BRIDGE
ASSOCIATES,
Defendant O3-5935 EQUITY TERM
ORDER OF COURT
AND NOW, this Oh day of April, 2004, upon consideration of the attached
stipulation of counsel, it is ordered and directed as follows:
1. The actions at No. 03-5935 Equity Term and No. 02-0692
Civil Term are consolidated for all purposes at No. 03-5935 Equity
Term;
2. Defendant's Motion to Compel at No. 02-0692 Civil Term,
filed February 26, 2004, is deemed moot, and the Rule issued on
March 2, 2004, on the motion is discharged;
3. Plaintiff's Motion To Compel Discovery at No. 02-0692 Civil
Term, filed March 2, 2004, is deemed moot, and the Rule issued on
March 5, 2004, on the motion is discharged; and
4. A discovery deadline of April 30, 2004, with expert reports
due thirty days thereafter, is hereby established.
BY THE COURT,
Dennis E. Boyle Esq.
200 N. Third Street
18"` Floor
p •0' $0X 84p?,17108-0840
Harrisburg,
Attorney for Plaintiff
Jack F . Hurley, Jr., Esq.
Timothy j, Nieman, Esq.
One South Market Square
p p. Box 1146
Harrisburg, PA 17108 1146
Attorneys for Defendant
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MAR 2 3 2004
SSGC, INC. d/b/a SIL?R SPRING
GOLF COURSE plaintiff
v.
SAMPLE BRIDGE A Defendant
SYLV ANIA
IN THE COL7g1' OF COMM PEN PLEAS OF
CUMBERLAND COL7NTZ >
1.10.03-5935 EQUITY
MOTIONS TO cl?lvu le Bridge
STIPULATION I? and Defendant, Same
?/a Silver Spring Golf Course,
Plaintiff, SSGC, Inc.
ed attorneys, sttpulate as follows:
and tbrough their undersign st Defendant on or
Associates, by the -Action at Law) again
Plaintiff initiated an action at law
. this Court at number 02-692 LAW
7 2002 The action at law is docketed with tYu Equity 11 Action") or about
about February equity
2 action the
. Plaintiff initiated the instant
from storm
d the Equity Action involve claims arising
November 12, 2003.
3. Both the Action at Law an
Defendant' s property onto Plaintiff 13 property'
water runoff from otion to Compel.
24, 2004, Defendant filed a M otion to
4 On or about February tiff tiled its Response to Defendant's M
5 On or about March 2, 2004, Plain
otions to Compel by establishing a
Compel and filed its own motion to Compel,
agreed to resolve, the M SPecifl
6. The parties have cally, the parties
for the exchange Of expert reports
deadline with expert report due thirty days
discovery deadline and a date certain
have agreed on an April 30, 2004 discovery
thereafter. tiff, s and Defendant's Motions to Compel.
7 'this agreement moots the Plain
508341.1
8. Further, the parties agree that the Action at Law and the Equity Action should be
consolidated pursuant to Pa.R.Civ.P. 213 since both actions involve common questions of law
and fact and arise from the same alleged transactions and occurrences. The consolidated actions
should proceed at docket number 03-5935 EQUITY.
WHEREFORE, Plaintiff and Defendant respectfully requests that the Court enter an
Order consolidating the Action at Law and the Equity Action and establishing an April 30, 2004
discovery deadline in consolidated action with expert reports due thirty days thereafter.
Respectfully submitted,
NAUMAN, SMITH, SHISSLER & HALL,
LLP
By: _ C-
Dennis E. Boyle, Esquire
Lucinda C. Glinn, Esquire
200 N. 3rd (Street, 18th Floor
P. O. Box 840
Harrisburg, PA 17108-0840
(717) 236-3010
Attorneys for Plaintiff
RHOADS & SINON LLP
Jack F. Hurle , Jr., Esquire
Timothy J. Nieman, Esquire
One South Market Square
P. O. Box 1.146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendant
CERTIFICATE OF SERVICE
I hereby certify that on this A day of March, 2004, a true and correct copy of the
foregoing document was served by means of United States mail, first class, postage prepaid,
upon the following:
Dennis E. Boyle, Esquire
Nauman, Smith, Shissler & Hall, LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, Pennsylvania 17108-0840
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SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 03-5935 EQUITY
REPLY TO NEW MATTER.
AND NOW comes the Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, by and
through its counsel, Nauman, Smith, Shissler & Hall, LLP, and files the within Reply as follows:
65. The averments of the Complaint are hereby incorporated by reference.
66. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Amended Complaint.
67. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Amended Complaint.
68. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Count II of the Amended Complaint.
69. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Count III of the Amended Complaint.
70. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Count IV of the Amended Complaint.
71. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Count I of the Amended Complaint.
72. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Count II of the Amended Complaint.
73. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Count III of the Amended Complaint.
74. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Count IV of the Amended Complaint.
75. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, Plaintiff has a direct interest and has suffered injury
as alleged in its Amended Complaint.
76. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial.
77. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial.
78. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial.
79. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial.
80. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial.
81. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Count I of the Amended Complaint.
82. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Count I of the Amended Complaint.
83. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, an injunction is necessary in this case to prevent the
additional harm caused by Defendant's repeated failure to manage storm water so as to not
increase the water flow or velocity directed onto Plaintiff's property. As Defendant has created
the conditions that are the cause of Plaintiff's damages, in reckless disregard of the legal
constraints upon it, and without any rights to continue development without compliance or
proper approvals, it cannot now claim that a remedy will cause greater harm to itself.
84. Denied. In addition to clean-up costs; Plaintiff has suffered damages that are difficult to
quantify due to the recurring nature of the injury, the effects the course conditions have had on
the business, in the form of revenues and image and the inability to require Defendant to
construct a permanent structure or mechanism for alleviating the additional storm water and
reducing its velocity to pre-development levels. By way of further answer, such damages were
caused by Defendant's continued common trespass in the form of storm water, its failure to
manage its storm water in compliance with law and its plans, and the nuisance resulting from the
increased water flow, and increased velocity directed upon Plaintiff's property without consent or
approval, or land use rights.
85. Denied. In addition to clean-up costs; Plaintiff has suffered damages that are difficult to
quantify due to the recurring nature of the injury, the effects the course conditions have had on
the business, in the form of revenues and image and the inability to require Defendant to
construct a permanent structure or mechanism for alleviating the additional storm water and
reducing its velocity to pre-development levels. By way of further answer, such damages were
caused by Defendant's continued common trespass in the form of storm water, its failure to
manage its storm water in compliance with law and its plans, and the nuisance resulting from the
increased water flow, and increased velocity directed upon Plaintiff's property without consent or
approval, or land use rights. The allegation that Plaintiff's damages were `caused' by the actions
of unnamed third parties who have not been made a party to this action is specifically denied, and
strict proof thereof is demanded at trial.
86. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, Plaintiff has minimized the clean-up efforts it has
undertaken to ensure that clean-up and maintenance would not require closure of the golf course
and cause greater loss of revenues. Plaintiff has also attempted to address the clean-up issues
internally so as to minimize incurred expenses.
87. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial. By way of further answer, see Count I of the Amended Complaint seeking
injunctive relief.
88. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial.
89. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial.
90. This paragraph constitutes a legal conclusion to which no response is required; to the
extent that this paragraph is deemed to contain facts, they are denied and strict proof thereof is
demanded at trial.
91. Denied. In addition to clean-up costs; Plaintiff has suffered damages that are difficult to
quantify due to the recurring nature of the injury, the effects the: course conditions have had on
the business, in the form of revenues and image and the inability to require Defendant to
construct a permanent structure or mechanism for alleviating the additional storm water and
reducing its velocity to pre-development levels. By way of further answer, such damages were
caused by Defendant's continued common trespass in the form of storm water, its failure to
manage its storm water in compliance with law and its plans, and the nuisance resulting from the
increased water flow, and increased velocity directed upon Plaintiff's property without consent or
approval, or land use rights.
92. This paragraph does not contain an averment of fact, and does not require a response.
Defendant's alleged right to supplement its new matter to which a reply would be required absent
additional pleadings misconstrues the rules of civil procedure.
WHEREFORE, Plaintiff SSGC, Inc., respectfully requests that this Court enter
judgment in its favor and against the Defendant for injunctive relief, damages for calculable
losses to date, as well as punitive damages, attorneys' fees and costs as this Court deems
appropriate.
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, ]Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3`d Street, 18d' Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717)'236-3010
Counsel For: Plaintiff SSGC, Inc.
Dated: April /9`2004
VERIFICATION
I, Ted W. Ansel, on behalf of SSGC, Inc. d/b/a Silver Spring Golf Course, make the
following statements subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn
falsifications to authority, and do hereby state that the facts set forth in the foregoing Reply to
New Matter are true and correct to the best of my knowledge, information and belief.
Ted Ansel
Dated: 04 -
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing Reply
to New Matter was served by United States First Class Mail, postage pre-paid, upon those person(s)
listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12th Floor
P. O. Box 1146
Harrisburg PA 17108-1146
Ja ce D. Hagstrom, 6alstant to
ennis s E. Boyle, Esquire
Dated: April f, 2004
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Jack F. Hurley, Jr., Esquire
Attorney I.D. No. 24414
Timothy J. Nieman, Esquire
Attorney I.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 Defendant
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES
Defendant
IN THE COURTOF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-5935 EQUITY
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES
Defendant
IN THE COURT' OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 02-692
DEFENDANT'S MOTION PURSUANT TO PA.R.CIV.P. 4003.5(a)(2)
FOR LEAVE TO DEPOSE EXPERT `WITNESS
AND NOW comes Defendant, Sample Bridge Associates ("Sample Bridge"), pursuant to
Pa.R.Civ.P. 4003.5(a)(2), and files this Motion for Leave to Depose Expert Witness, stating as
follows:
I. Plaintiff SSGC, Inc. d/b/a Silver Spring Golf Course ("SSGC") initiated an action
at law (the "Action at Law") against Sample Bridge on or about February 7, 2002, wherein
SSGC seeks damages for alleged violations of the Storm Water Management Act ("SWMA"), 32
P.S. §§680.1 et sec. common law trespass or private nuisance. SSGC's Complaint seeks
516041.1
recovery for damages allegedly suffered by SSGC as a result of storm water drainage from
Sample Bridge's neighboring property.
2. On or about November 12, 2003, SSGC initiated an action at equity (the "Equity
Action") against Sample Bridge, making basically the same claims as were made in the Action at
Law. The Action at Law and the Equity Action have been consolidated by this Honorable
Court's Order dated April 6, 2004.
3. On or about November 6, 2003, SSGC produced an expert report prepared by
Gerald Grove concerning the storm water issues. It has come to Sample Bridge's attention,
however, that Mr. Grove's involvement in this case, and knowledge of the facts of this case, goes
beyond his status as an expert witness and that he has information, evidence and opinions that he
obtained and/or developed independently of this litigation. Accordingly, Sample Bridge seeks
leave to depose Mr. Grove on facts and opinions that he obtained or developed independently
from his work as an expert witness in this case. See Scott v. DeFeo, 46 D.&C.4th 353, 355
(C.C.P. Lehigh Cty. 2000).
4. Sample Bridge has already permitted SSGC to depose its expert witness, Ron
Secary, concerning information obtained by Mr. Secary independent of his role as an expert
witness. Despite repeated requests, SSGC, however, has refused to allow Sample Bridge to
depose Mr. Grove. (See Exs. "A" through "E" attached hereto).
5. At his deposition, Ted Ansel, the sole shareholder of Plaintiff, testified that he
consulted Mr. Grove concerning the stone water issues in 1991, eleven years before he initiated
the Action at Law and twelve years before Mr. Grove issued his expert report. (Ex. "F", Ansel
Depo, p. 11 - 12). Mr. Ansel also testified that Mr. Grove "probably" inspected the site in 1991.
-2-
(Ex. "F", Ansel Depo, p. 12). Most importantly, however, Mr. Ansel testified that he did not
consider initiating a legal action in 1991 and is not sure when he first considered filing such an
action. (Ex. "F", Ansel Depo., pp. 17 - 18).
6. In this case, Sample Bridge has raised, inter alia, the defenses of statute of
limitations, lathes and waiver. Obviously, Mr. Grove possesses information directly impacting
these defenses, including when SSGC first discovered these alleged storm water issues and what
advice SSGC received concerning the alleged storm water issues.
7. Further, since Mr. Ansel did not consider filing; an action in 1991, and is unsure
when he first thought about filing a lawsuit, Mr. Grove was not initially consulted in anticipation
of litigation. As such, Sample Bridge is entitled to take Mr. Grove's deposition because many of
the facts that he obtained regarding the storm water issue, and many of the opinions that he
developed concerning the storm water issue, were not "acquired or developed in anticipation of
litigation or for trial." See Pa.R.Civ.P. 4003.5(a); Scott, 46 D.&C. at 355 ("Rule 4003.5 does not
apply to discovery of facts known or opinions held by a witness, whether or not an expert, if
those facts or opinions were acquired or developed independently of the litigation and not for
trial. Experts who know of facts or hold opinions not acquired or developed in anticipation of
litigation or for trial are subject to discovery like any other witnesses under the general discovery
rules.").
8. During his deposition, Mr. Ansel also testified that Mr. Grove has attended a
meeting with a representative of the Cumberland County Soil Conservation District relating to
the storm water issue. (Ex. "F", Ansel Depo, p. 77 - 78). This meeting took place after Mr.
-3-
Grove prepared his expert report. Thus, it is impossible that information was obtained, or
opinions developed, at that meeting in anticipation of litigation or trial.
9. If this Honorable Court grants SSGC leave to depose Mr. Grove, SSGC will not
inquire into the opinions developed by Mr. Grove in anticipation of the instant litigation.
WHEREFORE, Defendant Sample Bridge Associates respectfully requests that this
Honorable Court grant it leave to depose Gerald Grove.
Respectfully submitted,
RHOADS & SINON LLP
By: 1 ? -
Jack F. Hurl y, r., Esquire
Timothy J. Nieman, Esquire
One South Market Square
P. O. Box 1146
Harrisburg„ PA 17108-1146
(717) 233-5731
Attorneys for Defendant
-4-
EXHIBIT "A"
7? I,/[. Al
RHOADS Ililllllll
& SINON LLP
Timothy J. Nieman
ph (717) 231-6614
fx (717) 231-6626
tnieman@rhoads-sinon.com
RUNo: 2965/63
March 26, 2004
Re: SSGC, Inc. d/b/a Silver Spring Golf Course v.
Sample Bridge Associates, No. 03-5935
VIA FACSIMILE
Dennis E. Boyle, Esquire
Nauman, Smith, Shissler & Hall LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Dear Dennis:
I would like to take Martin Deiter's deposition on Tuesday, April 6 and Ted Ansel's
deposition on Tuesday, April 13. Penny indicated in her voicemail message that the witnesses
are available on both days in the morning.
Additionally, Bud Grove's comments during the Silver Spring Township meeting on
Wednesday suggested that he has information concerning the facts of this case. Accordingly, I
would like to take his deposition. Please let me know his availability.
I look forward to hearing from you.
Very truly yours,
RHOADS & SINON LLP
By:
lam=
Timothy J. Nieman
510791A
Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146
Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rlioads-sinon.com
EXHIBIT "B"
x
n
IIII? 1IIII?
RuOeDS C
& SINON LLP
March 31, 2004
Re: SSGC, Inc. d/b/a Silver Spring Golf Course v.
Sample Bridge Associates. No. 03-5935
Dennis E. Boyle, Esquire
Nauman, Smith, Shissler & Hall LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Dear Dennis:
Timothy J. Nieman
ph (717) 231-6614
fx (717) 231-6626
tnieman@rhoads-sinon.com
nLENo 2965/63
Enclosed please find Notices of Deposition for Martin Deiter and Ted Ansel. As you can
see from the enclosed, I have scheduled Mr. Deiter's deposition for Tuesday, April 6 and Mr.
Ansel's deposition for Tuesday, April 13. Also, please let me know when Mr. Grove is available
for his deposition.
Should you have any questions, please contact me.
Very truly yours,
RHOADS &: SINON LLP
By:
Timothy J. Nieman
encls.
512030.1
Rhoads S2 Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146
Harrisburg. PA 17 108-1 146 pIt (717) 233-5731 • fv (717) 232-1459 • www.rhoads-sinon.com
EXHIBIT "C"
LAW OFFICES
NAUMA&Y, SMITH, Sull9BLEB & IEALE, LLP
18TH FLOOR
, - 200 NORTH THIRD STREET
SPENCER G. NAUMAN, JR.
P. 0. BOX 840 -
J. STEPHEN FEINOUR. .. HARRISBURG, PENNSYLVANIA 17108-0840
CRAIG J. STAUDENMAIER
BENJAMIN C. DUNLAP, JR. - TELEPHONE
DENNIS E. BOYLE (717) 236-3010
L.RENEE LIEUX - - TELEFAX
LUCINDA C.GLINN
(717) 234-1925
April 12, 2004
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12' Floor
P. O. Box 1146
Hai7isburg PA .17108-1146
COUNSEL
DAVID C. EATON
JOHN C. SULLIVAN
DIRECT E-MAIL ADDRESS
NSSH(DNSSH.COM
RE: SSGC, Inc. d/b/a Silver Spring Golf Course v.. Sample Bridge Associates
No.: 03-5935 Equity; Cumberland County, PA
Our File No.: 12643-2
Dear Tim:
Please be advised that I have seen your request to take the deposition of Bud Grove. As
you are aware, we have retained Mr. Grove as our expert and I am consequently unwilling to
allow you to take his deposition. However, if you believe that lie is in possession of facts
acquired independent of his expert status that were not provided to him as part of his retention in
anticipation of litigation, please outline what you believe those facts to be and we may reconsider
our position. At present, we are not inclined to permit his deposition absent cause shown and
subject to court restrictions and provisions for payment of fees and expenses.
Sincerely yours,
oe Dennis E. Boyle
DEB/jdh
EXHIBIT "D"
r
T31-TOADS
& SINON LLP
Timothy J. Nieman
ph (717) 231-6614
fx(717)231-6626
tnieman@rhoads-sinon.com
RLENo:2965/63
April 13, 2004
Re: SSGC. Inc. d/b/a Silver Spring Golf Course v.
Sample Bridee Associates. No. 03-5935
VIA FACSIMILE
Dennis E. Boyle, Esquire
Nauman, Smith, Shissler & Hall LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Dear Dennis:
I am in receipt of your letter objecting to Bud Grove's deposition. It became apparent
today during Ted Ansel's deposition that Mr. Grove has significant information concerning the
storm water issues that he acquired outside of the litigation context. For example, Mr. Ansel
testified that he consulted with Mr. Grove as far back as 1991 (though he did not file an action
until 2002), that Mr. Grove has inspected the site on numerous occasions before the litigation
was filed and that he has participated in meetings with representatives of the Township and
Cumberland County Conservation District that are not related to the litigation. Further, Mr.
Grove has attended a number of Township Supervisor meetings. Thus, it is apparent that Mr.
Grove has facts that are subject to discovery because they were not obtained in connection with
this litigation or do not form the basis for his opinion.
I allowed you to depose Ron Secary without requiring a Court Order and did not, at that
time, request payment of his fees and expenses. I hope that you will provide me with the same
courtesy. If not, I am prepared to obtain the Court's pennission to take Mr. Grove's deposition
and will send you an invoice for Mr. Secary's costs associated with the deposition.
I am currently available April 19 through 23, 26 and 28 to take Mr. Grove's deposition.
I look forward to hearing from you.
Very truly yours,
RHOADS &: SINON LLP
By' <I
Timothy J. Nieman
5[2030.[
Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1.146
Harrisburg, PA 17108-1146 • pit (717) 233-5731 • fx (717) 232-1459 0 www.rhoads-sinon.com
EXHIBIT "E"
APR-19-2004 MON 04:10 PM NAUMAN SMITH FAX NO, 2341925 P. 01
Law Offices
,,L4E 9AN, SMUH, SMSSLER &,HALT-
200 NORTH THIRD STRHI•:T
18TH FLOOR
P.O. EOX 840
HARRISISURG,PENNSYLVANIA 1710&0840
T cizPHONE
(717) 276.3010
T0X..r'AX
(717) 234-1925
FAX DOCUMENT INFORMATION SHEET
Please deliver the following pages:
TO: Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
FROM: Lucinda C. Glinn
DA'V'E: April 19, 2004
FAX NUMBER: (717) 231-6626
NUMBER OF PAGES (including cover page): 6
SUBJECT MATTER: SSG.C, Inc. v. Sample Bridge Associates
No.: 03-5935 Equity; Cumberland County
MATTER NUMBER: 12643-2
MESSAGE: Following is a letter regarding the above-referenced matter.
The pages eurnprieing this fu sitnile tmmmiaslon contain eon0dential Informaimn E m Lucinda C. Glinn, Hcquirq Nauman. Smith, Shissler 6c Hall. Thin information
is inrcndcd anlaly fu, me by the individual entity named as the mcipienc hereof. If you etc no, the intended tecipienq be aware that any disclosure, copying,
dixtrihurinn, tar use of the con,enc of this nansndssiun :s pmhibieed. If you have received this teanami,don in error, plca.e notify us by mlcphons immediately su we
may arrange rn rsrieve this usnsmissiun a, no son w ym,.
If you do not receive all of the pages indicated, please call Janice.Hagstrom at (717) 236-3010.
APR-19-2004 MON 04:10 PM NAUMAN SMITH FAX NO. 2341925 P. 02
LAW OFFICES
NALT."Aw, SMiTif, e%1118 3LM1t A rLiL LIL. Vf p
1ST- FLOOR
2o0 NORTH THIRD STREET
P. O. BOX 040
SPENCER G. NAUMAN. JR.
PENNSYLVANIA 17108-0840
HARRUSSURG
J. GTEPHEN PEINOUR ,
CRAIG J. 9TAUDENMAIER TCLEPHONe
BENJAMIN C.DUNLAP, JR.
DENNItl E. BOYIe (717) 236-3010
TEL=V^X
L. 4EN EE LIEUX
LUCINDA C. GLINN (9101 234-192 5
April 19, 2004
Timothy). Nieman, Esquire
Rhoads CT. Sinon, LLP
One S. Market Square, 12''' Floor
P. O. Box 1146
Harrisburg PA 17108-1146
COUNOCL
DAVID C. EATON
JONN C. SULLIVAN
GUY P. BEN EVCNTANO
DIRECT E-MAIL ADDRESS
NSSHONESH. CO.
WEBSITE ADDRESS
WWW. NSSH. COM
RE: SSGC, Inc. d/b/a Silver Spring Golf Course V. Sample Bridge Associates
No.: 03.5935 Equity; Cumberland County, PA
Our File Noa 12643.2
Dear Tim:
Dennis asked that 1 respond to your letter requesting to depose our expert, Bud Grove.
You indicated in your letter dated April 1P that after taking Ted Ansel's deposition, you believe
Mr. Grove to be in possession of 'facts' that were learned in a capacity unrelated to his role in the
litigation. That is not the case. 'Nit. Grove is not an independent fact witness in possession of facts
to which you have no other access. Contrary to your assessmenlt, Ted Ansel indicated that our
expert is only in possession of any factual information that was provided to him by Mr. Ansel in
anticipation of what became the inevitable litigation between SSGC, Inc., and Sample Bridge
Associates regarding development of The Peninsula. Mr. Ansel involved Mr. Grove to obtain his
opinions and observations as an engineer as to what impact the intended development would have
on the golf course. Mr. Ansel testified at deposition that he had an interest in protecting his
property as far back as 1991, and had been consulting an attorney at this firm at the same time.
The fact that Mr. Ansel wanted to resolve these matters with Sample Bridge Associates without the
necessity of filing the above-captioned litigation does not lessen the work product protection
extended to Mr. Grove and his efforts on SSGC's behalf.
An expert may be retained in anticipation of litigation, and thus not be subject to
deposition regarding facts or opinions lie may have based upon those facts that lie learned when
consulred, even when that consultation was sought prior to filing the litigation. It is our position
that Mr. Grove has served in the capacity of Mr. Ansel's representative in the attendance of all of
the meetings to which you refer in your letter with the Township and the Cumberland County
Soil Conservation District. It is not clear that these meetings are nor related to the litigation, and
in fact, would not have taken place but for the subject of the litigation against Sample Bridge
APR-19-2004 MON 04:10 PM NAUMAN SMITH FAX NO. 2341925 P. 03
Page 2
April 19, 2004
SSGC, Inc. v. Sample Bridge Associates
Associates. Should you wish to do so, it is within your rights under the civil rules to pursue the
matter in court, where you will be required to show good cause as to why you need to depose our
expert, and what facts you believe you will uncover during that deposition.
Ron Sectary was deposed with your consent in accordance with the Rules of Civil
Procedure, with particular attention to his role as a fact witness ass opposed to an expert. As you
will see from the Stipulation we have attached from Mr. Secary's deposition transcript, it was made
abundantly clear that Mr. Secary was providing testimony only as to facts that he had learned and
presented in his role as engineer of the plans for The Peninsula which are inextricably intertwined
with the subject of the litigation against Sample Bridge Associates, Particularly in light of the fact
that Mr. Snyder testified during his deposition that Mr. Secary would be in possession of all of the
facts he lacked regarding the plans as submitted, and as designed, and any variation between the
two, the facts in possession of Mr. Secary are subject to discover, and are not protected by any
expert status he may have. As Mr. Grove is not in possession of facts that are crucial for your
defense of this action independent of his role as our expert, and any facts he may have which may
be obtained from other individuals, such as Mr. Ansel who you have already deposed, our refusal
to permit deposition of Mr. Grove. stands.
Your letter implies that as you permitted Mr. Secary to be deposed without a court order,
we should exrend the same courtesy. The circumstances under which knowledge was gained and
to which they were privy are not comparable. Mr. Secary's deposition was limited to the facts of
which he had personal knowledge, and which he learned independent of his role as 'expert;' thus,
we would object to your request to pay his fees and expenses. Mr. Secary appeared for deposition
in response to a subpoena, and in accordance with the attached deposition Stipulation and
parameters outlined for his deposition, Mr. Boyle's questions were limited to facts, and in
particular, to his central role with respect to planning and implementing the plans for The
Peninsula Phase 111. It is also unclear at this point, given your comments during the deposition of
Mr. Secary, whether Sample Bridge Associates intends to utilize Mr. Secary as a testifying witness-
In such case, of course, SSGC would be entitled to an expert report; as agreed, we would expect an
expert report to be forthcoming by the May 30`s deadline. You have been provided Mr. Grove's
expert report which he prepared for the anticipated litigation, and had the benefit of access to his
opinions and facts which may color your questions. Permitting deposition of our expert under
these circumstances would be prejudicial.
APR-19-2004 MON 04:10 PM NAUMAN SMITH FAX NO. 2341925 P. 04
Page 3
April 19, 2004
SSGC:, Inc. v. Sample Bridge Assoc:iares
Should you have any questions regarding this letter, please do not hesitate to contact me at
the above number.
Sincerely,
Lucinda C. Clinn
LCC/jdh
Enclosure
APR-19-2004 MON 04:10 PM NAUMAN SMITH FAX NO, 2341925 P. 05
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STIPULATION
It is hereby stipulated by and between
counsel for the respective parties that sealing,
certificat;o,n and filing are hereby waived; and
all objections except as to the form of the
question are reserved to the time of trial.
MR. BOYLE: Before we go forward, I would
just like to put on the record the scope of this
deposition so we are both clear. I don't think we
have any dispute. The scope of this deposition is
just to inquire into factual areas concerning
Phase III of The Peninsula development in Silver
Spring Township, Cumberland County, Pennsylvania.
I understand that Mr..Secary has been
retained as an expert by Sample Bridge Associates,
which is the defendant in this case. Therefore,
we have sort of an odd circumstance where you are
both an expert witness, in which case we are not
permitted to take your deposition, and a fact
witness, in which case we are permitted,_to take your deposition. Therefore, I intend to inquire
in today only to factual matters surrounding the
circumstances of the development, any problems
related to the development and things of that
nature ,that.:do not involve your expert opinion.
--- I' PUS 6 MCLUC4S REPORTING SER VICE, INC. -
Harrishkr8,p717-236-0623 York 717-84.5-6428 PA 1.800.233.9327
APR-19-2004 MON 04:10 PM NAUMAN SMITH FAX NO. 2341925 P. 06
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]: suppose, Tim, if we go beyond that do you
want a standing objection now or do you want to
make an objection at the time?
MR. NIEMAN: If you go into opinions?
MR. BOYLE: Yeah.
MR. NIEMAN: I mean obviously I'm going to
object generally to all questions that would
relate to opinions. But I will probably object as
we go on and there may become a time where I might
direct the witness not to answer if I feel it's
going beyond what's allowed and we can talk about
that.
And just so we're clear also, Mr. Secary it
hasn't been determined yet whether he will be a
testifying expert or just a consulting expert
under the rules, but he is an expert that is
assisting us with the rase and I think the rules
are the same with respect to both in terms of
being able to take a deposition.
MR. BOYLE: I think that's true. And the
only other point I want to clarify is if you are
going to testify as an expert, it's necessary
we're entitled to an expert report.
MR. NIEMAN: Right.
MR. BOYLE: And this deposition is not and wE
- Pi us &McLUCAS R$POR77NG SERVICE, INC. -
Harrhbwg737236-0623 York737-845-6979 AA2.800-233-9327
EXHIBIT "F"
.JJ I (x ?
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SSGC, INC. D/B/A
SILVER SPRING GOLF COURSE
PENNSYLVANIA,
PLAINTIFF
VS. NO. 03-5935
SAMPLE BRIDGE ASSOCIATES,
DEFENDANT
VOLUME 2
DEPOSITION OF: TED WILLIAM ANSEL
TAKEN BY: DEFENDANT
BEFORE: LISA A. HANSELL, REPORTER
NOTARY PUBLIC
DATE: APRIL 13, 2004, 9:35 A.M.
PLACE: RHOADS 8t SINON, LLP
ONE SOUTH MARKET SQUARE
HARRISBURG, PENN SYLVANIA
APPEARANCES:
NAUMAN, SMITH, SHISSLER & HALL
BY: LUCINDA C. GLINN, ESQUIRE
FOR - PLAINTIFF
RHOADS & SINON, LLP
BY: TIMOTHY J. NIEMAN, ESQUIRE'.
FOR - DEFENDANT
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
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A That's an interesting question. To answer
that honestly, Jack Sullivan, who is from the firm of
Nauman, Smith, Shissler & Hall, is a neighbor, resides along
the bridge at Sample Bridge Road, is a very old, very
trusted, very dear friend. He was very, very much involved
with all of the hearings that we've referred to in this
deposition. He and I discussed these matters at great
length and at great detail. He certainly acted as a friend
and certainly acted as an attorney in those conversations.
As far as billing, I'm not sure. Because we were so much
involved -- I don't know.
Q Okay. And back in '91, did you retain or
consult with an engineer to review the storm water issues?
A As I recall, I did.
Q Who did you deal with?
A Bud Grove.
Q So you've been involved with Bud Grove since
1991 on this issue then; is that accurate?
A I would say so. I'd have to verify that. He
is the only engineer that I've consulted with on -- I mean
throughout the entire history of this circumstance.
Q Do you have any documents or plans or reports
or anything from Mr. Grove that predate the litigation?
A I don't think so. He never represented me in
a meeting, for example, at the approval of the preliminary
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plan or anything like that. I think, as I recall, it was
more simply as a consultation.
Q Okay. Did he come down and inspect the site?
A I didn't -- to tell you the truth, he probably
did. I'm sure he probably did. I know he didn't have to
very much because he had played the golf course many, many
times, and that's how I knew him to begin with.
Q Now, the 1991 approval of the preliminary
plan, did you take any appeal from that to the Court of
Common Pleas?
A I don't know.
Q Do you have any recollection of an appeal?
A My lawyers would be able to answer that.
There's been so much.
Q Do you recall back in the 1991 or '92 time
frame going to court over this issue?
A I do not. As I do recall, I think it was the
developer's position at the time that the issues would be
more specifically addressed when Phase III was to be dealt
with.
Q Okay.
A But that's just a general recollection. I
recall so many questions about the preliminary plan where
the developer's representatives were simply saying, well,
that isn't what we do at preliminary plan, that will be done
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Q Now, you said that you were advised to try to
pursue a dial ogue with Mr. Snyder. Who advised you to do
that?
A Well, I would say everybody. Jack Sullivan
did. Dennis Boyle did.
Q what did they tell you?
A They said this is a matter, as I recall, that
you should le t him know that you're: open to discussing the
matter in an attempt to resolve it.
Q And did that advice go back to 1991 when
Mr. Sullivan was advising you with respect to the
preliminary p lan?
A I don't recall.
Q Did anyone else give you that advice,
Mr. Grove or anybody else?
A No, not that I recall.
Q At that time did you consider filing a lawsuit
over these is sues?
A Gee, I -- at what time?
Q Well, when did you first start considering
filing a laws uit?
A I don't know the answer to that.
Q Do you have a rough idea when it may have
been?
A That I first thought of it --
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Q Yes.
A -- as a possibility? Geez, it's common
knowledge that these things can lead to that. It was always
my effort to try to resolve the matter out of court, even up
to when you and Jack Hurley were out.
Q Sure. Back in '91, did you consider filing a
lawsuit at that point?
A No, I didn't, because I -- at that time, as I
recall, the approval was conditional and I had faith that --
to begin with, I never dreamt that a developer would present
a plan showing an easement that did not exist or that facts,
like the existence of a pond, would be misrepresented.
Q Okay. And I'll get to this a little later,
but in 1996, I believe it was, when the final Phase III
approval was submitted, at that point in time when that was
approved did you consider filing a lawsuit at that point in
time?
A I don't know.
Q All right. Now, if we can get back to your
discussions with Mark Crete, you said that one alternative
was a pipe directly to the creek. Were there any other
alternatives that you discussed with that company?
A We discussed the option of taking the water
directly to the pond that exists downhill from the ladies'
tee at four.
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Q I know at some point you did talk to John
Gleim when he or his company was putting in the rock line
swale. What do you recall about those conversations?
A Always very cordial. John Gleim is a
gentleman.
Q What did you guys talk about?
A Well, most of the conversation had to do with
the construction.
Q When did this conversation --
A We talked a little baseball, I think.
Q When did the conversation take place?
A I spoke with him briefly on the day of his
deposition. I believe you were there.
Q Right.
A And there was no conversation that did not
occur in your presence. So, I mean, I'm not trying to be
flip here, but you know what we talked about that day.
Q Yes.
A And I spoke with him -- we had -- again, last
fall you may recall a situation where we had a very
significant degree of erosion and sedimentation, and I
called the Cumberland County Soil Conservation District. I
spoke with a young lady named Kim Falvey, and she came out
to examine the site, and upon examining the site she asked
me if I would be willing to meet with her and with Mr. Gleim
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and with Bud Grove in the next couple of days, and I said
certainly, I'd be glad to.
Q Okay.
A Mr. Gleim -- and I believe it was John T.
Gleim -- it was the man who was deposed.
Q Sure.
A He came out to the golf course to meet with
Kim, and we discussed a number of things at that meeting.
Q Okay. What was discussed?
A The sedimentation was discussed; the placement
of, for lack of a better term, the silt fence or filter
fabric; the erosion that had occurred. And at that meeting
Mr. Gleim indicated to her that the work that he had done
was not according to -- and forgive: me if that's not the
correct word or the correct phrase -- but was not in
compliance or according to the design plan.
Q And why not?
A He said that he was unable -- that it was
physically impossible to implement the design. So that he
utilized his best judgment and had made changes in the
design so that he could do the construction.
Q What changes did he say he had made?
A He had made the base of the swale wider, and
the swale and channel was to be implemented on existing
grade. And by that he meant that the swale had worn to
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
CERTIFICATE OF SERVICE
I hereby certify that on this day of May, 2004, a true and correct copy of the
foregoing document was served by means of United States mail, first class, postage prepaid,
upon the following:
Dennis E. Boyle, Esquire
Lucinda C. Glinn, Esquire
Nauman, Smith, Shissler & Hall, LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, Pennsylvania 17108-0840
n
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21
ca -
L4.;,
MAY U 6 2004
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-5935 EQUITY ?
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 02-692
+ ORDER
AND NOW this Z day of May, 2004, upon consideration of Defendant Sample Bridge
Associates' Motion Pursuant to Pa.R.Civ.P. 4003.5(a)(2) to Depose Expert Witness, and all a
Rule is hereby issued upon Plaintiff SSGC, Inc. d/b/a Silver Spring Golf Course to show cause
why the relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
&Oennis E. Boyle, Esquire
Nauman, Smith, Shissler & Hall, LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, Pennsylvania 17108-0840
2.Tilhothy J. Nieman, Esquire
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
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MAY 17 M`b
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 03-5935 EQUITY
SSGC'S RESPONSE TO DEFENDANT'S MOTION PURSUANT TO
Pa.R.C.P. 4003.5(a)(2) FOR LEAVE TO DEPOSE EXPERT WITNESS
Plaintiff, SSGC, Inc., d/b/a Silver Spring Golf Course, ("SSGC"), by and through its
counsel, Nauman, Smith, Shissler & Hall, LLP, and hereby responds to Defendant Sample
Bridge Associates' Motion for Leave to Depose Expert Witness as follows:
Admitted in part, denied as stated in part. SSGC initiated its action at law seeking
damages for violations of the Storm Water Management Act, ("SWMA"), common law
continuing trespass, and private nuisance. By stipulation of the parties approved by this Court on
April 6, 2004, the action at law has since been consolidated with the Complaint at Equity which
seeks to enjoin further injury to SSGC's property, as well as damages for injury already suffered
due to the failure to accommodate or manage storm water flow from Sample Bridge's property,
which in turn causes debris and excess water upon SSGC.
2. Admitted in part, denied as stated. SSGC initiated this claim at equity making
similar claims, but also including a separate count for injunctive relief.
3. Admitted in part, denied in part. It is admitted that SSGC produced an expert
report prepared by Gerald ("Bud") Grove regarding the increased amount and velocity of storm
water that has flowed from Sample Bridge's development, Peninsula Phase III, onto the golf
course at separate locations. It is specifically denied that Mr. Grove has had any involvement
with this case other than as an expert whose counsel and services were sought in anticipation of
this litigation. Further, it is specifically denied that Mr. Grove has information that he obtained
or developed independently of his counsel sought for this litigation. By way of further answer,
Mr. Grove has not obtained any information that is relevant to this litigation independently of his
involvement as an expert in this case. Unlike in Scott v. DeFeo, cited by Defendant, Mr. Grove
has been named as an expert, has acquired facts by virtue of his consultation as an expert, and so
is thus protected by Rule 4003.5 with which he has compiled toy providing his report.
4. Denied as stated. Sample Bridge has failed to identify Ron Secary as its expert
witness with respect to this litigation in response to discovery. See Defendant's Response to
Interrogatories appended to Plaintiff's Motion to Compel. After correspondence refusing his
deposition based upon an unsubstantiated expert status, Sample Bridge conceded that the
deposition of Mr. Secary could not be refused in accordance with the rules. See letters of counsel
dated September 22, 2003, February 25, 2004 and February 27, 2004 attached as Exhibit `A.' On
March 2, 2004, SSGC moved to compel his report, and responses to expert interrogatories; none
of these responses have been provided to date, as counsel agreed to stipulate withdrawal of the
mutual motions to compel. SSGC subpoenaed Mr. Secary purely as a fact witness to discover
facts he acquired in the course of serving as engineer for the project. Mr. Secary has an integral
role as their engineer in the planning of The Peninsula Phase IQ - the consequence of which is the
-2-
subject of the litigation. Mr. Secary was not retained by Sample Bridge to serve as their expert.
Mr. Secary's deposition was specifically limited to those facts that Defendant's principal, Joseph
Snyder, had stated were in Mr. Secary's exclusive possession as engineer for The Peninsula
project. See Stipulation of Secary Deposition, attached hereto as Exhibit `B.' The facts of which
Mr. Snyder testified Mr. Secary was in possession form the foundation of and are essential
evidence to SSGC making a prima facie case regarding the non-compliance with the SWMA,
submitted plans, and the Defendant's knowledge as to the violation of applicable law, and flaws
in plan execution that caused injury to SSGC as described in its Amended Complaint. See pages
of Deposition Transcript of Joseph Snyder, attached hereto as Exhibit `C.'
Rule 4003.5(a)(2) is not a mechanism to circumvent work product protection, it is a
means by which a party may seek supplemental discovery from an expert. "Discovery of facts
known and opinions held by an expert ... acquired or developed in anticipation of litigation" is
limited under Rule 4003.5. Rule 4003.5 "limits rather than expands, the relatively free flow of
pre-trial information... it discourages the lazy litigant from building his or her case upon better
preparation of a more diligent opponent. It permits only enough discovery to prevent tactical use
of surprise expert testimony at trial." Neal by Neal v. Lu, 530 A.2d 103 (Pa. Super. 1987). In
contrast, the relevant information acquired by Mr. Secary was not in preparation for litigation,
but as an "actor or viewer with respect to transactions or occurrences which are the subject matter
of the lawsuit. See Harasimowicz v. McAllister, 78 F.R.D. 319 (E.D. Pa. 1978)(cited in Miller v.
Brass Rail Tavern, Inc., 664 A.2d 525 (Pa. 1995)).
5. Denied as stated. Mr. Ansel's deposition transcript shows that W. Ansel
consulted with his attorney Jack Sullivan as far back as 1991 regarding the effect that the
-3-
Peninsula Development as a whole would have upon his property, and that when considering
what action, if any to take in response to the anticipated development of the neighboring property
that is now The Peninsula Phase III, he retained or consulted with an engineer. See Deposition
Transcript of Ted Ansel, April 17, 2003, (relevant pages of which are hereto appended as Exhibit
`D'), p. 11, lines 12-16. Specifically, in response to Mr. Neiman's question "And back in `91,
did you retain or consult with an engineer to review the storm water issues?" Mr. Ansel
responded that he did consult with Bud Grove and has been involved with Bud Grove since 1991
on that issue. Tr. p. 11, lines 17-20. Moreover, Mr. Ansel testified that the developer had
informed him that the matter with Phase III would be addressed at a later date. See Exhibit D,
Ansel Tr. p. 12, lines 17-25, p. 13, lines 1-3. Contrary to Defendant's characterization, Mr.
Ansel never testified that he did not consider filing a legal action in 1991; Mr. Ansel testified that
he had been attempting to resolve the matter without going to litigation through a dialogue with
Mr. Snyder, Tr. p. 16, line 17-25, and at times with Mr. Secary to no avail. Ansel Tr. p. 14, lines
14-18. Mr. Ansel further testified that he considered litigation as a possibility as far back as 1991
explaining "Geez, it's common knowledge that these things can lead to that. It was always my
effort to try to resolve the matter out of court, even up to when you and Jack Hurley were out."
He elaborated that he did not consider filing a suit in 1991 because the approval was conditional
and he "never dreamt that a developer would present a plan showing an easement that didn't
exist or that facts, like the existence of a pond, would be misrepresented." Ansel Tr. p. 18, lines
8-12. Mr. Ansel's testimony is clear that he consulted Mr. Grove as far back as 1991 regarding
-4-
the conditions giving rise to the present lawsuit, that he attempted to avoid filing suit to resolve
the storm water problems. Therefore, any relevant information to which Defendant would like
access through deposition must be limited in accordance with Rule 4003.5.
6. Admitted in part, denied in part. It is admitted that Sample Bridge has raised the
named defenses. It is specifically denied that Mr. Grove has any knowledge, that he did not
obtain through consultation with SSGC regarding matters that lead to the present lawsuit. By
way of further answer, Mr. Ansel testified that the advice he received regarding handling of these
matters came from counsel of this firm, which is protected by the attorney/client privilege. Ansel
Tr. pp. 16-17 at Exhibit D. Moreover, Mr. Grove does not possess any knowledge with respect
to any relevant facts underlying Defendant's alleged defenses that he did not obtain by virtue of
having been contacted in a professional capacity regarding his view of the conditions giving rise
to this action. Again, any advice that SSGC received concerning the inadequate and injurious
storm water management matters from Mr. Grove is protected as work-product.
7. Denied. As stated in 115 and 6 above, Mr. Ansel did not testify that he did not
consider filing an action in 1991; the statement that Defendant takes out of context was preceded
and followed by explanations of his consideration of legal options, and attempts to settle the
matter without resorting to litigation. Mr. Ansel testified that he deemed litigation a last resort,
and as the current suit proves, he was unable to avoid filing a complaint to bring Sample Bridge's
non-compliance and reckless indifference to SSGC's property rights into sharp relief.
Rule 4003.5 protects from disclosure in discovery an expert witness' opinions, and facts
learned and obtained in anticipation of potential litigation from which the expert gleaned his
opinion or based his consultation. The primary purpose of the Rule is "to permit only enough
-5-
discovery so as to prevent the tactical use of surprise expert testimony at trial to the unfair
disadvantage of the opposing parry." See 9 Goodrich-Amram 2d, §4003.5:3. Mr. Grove
provided an expert report, and thus answered expert interrogatories; he may be called at trial.
Under Rule 4003.5(a)(2), discovery is limited to a mere synopsis of the testimony expected,
unless the court grants an application for "cause shown." See Tate v. Phila. Sav. Fund Soc'y, 1
Pa. D.&C. 131 (Phila. Com. Pls. 1987). It is only for good cause shown, and payment of fees
fixed by the court that supplemental oral questioning may be permitted. No good cause is shown
here. Defendant already deposed Mr. Ansel, and has had a copy of Mr. Grove's report. Unlike
Mr. Snyder, Mr. Ansel did not make any statements in his deposition indicating that the only
person with knowledge as to facts necessary to Defendant's presentation of its case is Mr. Grove.
A lawsuit need not be filed for an expert's opinions or knowledge to be protected from discovery,
it is only necessary that the expert's knowledge be acquired in anticipation of litigation. See
Miller v. Brass Rail Tavern, Inc.,supra. The record shows that this litigation was under
consideration, if not filed, for several years, and that Mr. Grove was the only engineer consulted
regarding the conditions underlying suit; and therefore, discovery as to him is extremely limited.
8. Admitted in part, denied in part. It is admitted that Mr. Ansel testified that Mr.
Grove attended a meeting with Kim Falvey of the Cumberland County Soil Conservation
District, the subject matter being the storm water management deficiencies and non-compliance
of Sample Bridge Associates with its plans. It is specifically denied that the fact that the meeting
occurred subsequent to Mr. Grove producing his report in any way diminishes the protection
afforded to the information he gained by virtue of his expert status. It simply defies logic that
once an expert has produced a report, that the opposing party is permitted to discover any
-6-
information relating to the litigation, or counsel sought with respect to conducting the litigation
and/or simultaneous pursuit of other avenues toward resolution, based upon the mere fact that the
expert attended a meeting at client direction to offer the benefit of his expertise subsequent to
report submission. By way of further answer, Mr. Grove attended the described meeting in order
to offer the benefit of his expertise in light of the fact that the structure Defendant constructed,
and alleged may `fix' the storm water problems was not yet completed, and was not constructed
according to submitted plans. Mr. Grove has continued to provide counsel, and is currently
preparing a supplemental report based upon the completed swale structure to be produced to
Defendant upon completion. Denying Sample Bridge's access to Mr. Grove for deposition does
not prejudice its capacity to litigate this case in any manner as the information may be obtained
from other sources. Defendant had the opportunity to depose :Mr. Ansel about the meeting, and
may subpoena Ms. Falvey regarding the meeting should he seek factual information about it.
9. Denied. Since all of the information that Mr. Grove has obtained that relates in
any way to the current lawsuit was provided to him by Mr. Ansel or counsel, that information is
entitled to be protected from disclosure as work-product. Moreover, such information can be
learned from other sources without endangering the work-product privilege in accordance with
the rules. Sample Bridge has failed to allege any good cause for Mr. Grove's deposition, and its
Motion should thus be denied.
-7-
WHEREFORE, based on the foregoing, SSGC respectfully requests that this Honorable
Court deny Sample Bridge Associates' Motion for Leave to Depose Expert Witness.
Respectfully submitted by,
Dated: May 3, 2004
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3`d Street, 181e Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSGC, Inc. d1b/a Silver Spring Golf
Course
8-
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11 Z i LOADS ILU?1111-p1?
& SINON LLP
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Timothy J. Nit a?
ph (717) 231-6614
fx (717) 231-6626 E Z 30
tnieman@rhoads-sino n.cont
FR.ENO: 2965/63 -57-
February 27, 2004
Re: SSGC, Inc. d/b/a Silver Spring Golf Course v. Sample Bridge Associates
VIA FACSIMILE and REGULAR MAIL
Lucinda C. Glinn, Esquire
Nauman, Smith, Shissler & Hall LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Dear Lucinda:
Ron Secary is available March 10, 12 or 15 for his deposition.
As I indicated earlier to Dennis Boyle, we anticipate using Mr. Secary as our expert
witness in this case. As such, his deposition testimony will be extremely limited pursuant to
Pa.R.Civ.P. 4003.5.
I look forward to hearing from you.
cc: Mr. Ron Secary
Very truly yours,
RHOAD S & SINON LLP
By:
Tinloth J. Nieman
Rhoads & Sinon LLP • attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box L146
Harrisburg, PA ;7108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com
LAW OFFICES
XAUMAly, SM1W1K, 81118SLER R. HALL, LLP
SPENCER G. NAUMAN, JR.
J. STEPHEN FEINOUR
CRAIG J. STAUDENMAIER
BENJAMIN C. DUNLAP,JR.
DEN NIS E. BOYLE
L.RENEE LIEU%
LUCINDA C. GLINN
Timothy J. Nieman, Esquire
Rhoads & Sinon,LLP
One S. Market Square, 12' Floor
P. O. Box 1146
Harrisburg PA 17108-1146
Via Facsimile
RE: SSGC, Inc. d/b/a Silver Spring Golf Course v. Sample Bridge Associates
No.: 03-5935 Equity; Cumberland County, PA
Our File No.: 12643-2
Dear Tim:
We have yet to receive a response to our request of February 10 s to depose Ron Secary.
It is our preference to depose Mr. Secary without subpoenaing his presence, however, lacking
your cooperation, we will be forced to issue a Notice and subpoena him for a date and time of our
choosing. We will refrain from issuing a subpoena provided we hear from you no later than
Friday, February 27th with a mutually convenient Monday, Wednesday or Friday date in March.
Note that we also have not received a copy of Mr. Secary's expert report, which we
requested in our document requests served in September. Kindly produce same as soon as
practicable so that we do not tax the court with an unnecessary motion to compel.
We appreciate your anticipated cooperation, and look forward to hearing from you.
Sincerely,,.
6TH FLOOR
200 NORTH THIRD STREET
P. O. Box 640
HARRISBURG, PENNSYLVANIA 17108-0840
TELEPHONE
(7t7) 236-3010
TELEFA%
(717) 234-1925
COUNSEL
DAVID C. EATON
JOHN C. SULLIVAN
GUY P. BENEVENTANO
DIRECT E-MAIL ADDRESS
NSSHQNSSH.COM
WEBSITE ADDRESS
W W W. NSSH. COM
February 25, 2004
Lucinda C. Glinn
LCC/jdh
LAW OFFICES
XWU.Ma9ier, SBS3'Il'MI, SMZSSY.Mlt. & ELAE.7., IAMP
18TH FLOOR
200-NORTH THIRD STREET
P. O. BOX 640
SPENCER G. NAUMAN, JR.
J. STEPHEN FEINOUR HARRISBURG, PENNSYLVANIA 1710 8-0 840
CRAIG J. 5TAUDENMAIER
TELEPHONE
BENJAMIN C. OUNLAP, JR.
DENNIS E. BOYLE (717) 236'3010
L.RENEE LIEU. TELEFAX
LUCINDA C. GLINn
(717) 234-1925
September 22, 2003
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One South Market Street, 12' Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
COUNSEL
DAVID C. EATON
JOHN C. SULLIVAN
DIRECT E-MAIL ADDRESS
NSSH([DNSSH.COM
RE: SSGC, Inc. d/b/a Silver Spring Golf Course v. Sample Bridge Associates
No.: 02-692 Civil Term; Cumberland County, PA
Our File No.: 12643-2
Dear Tim:
Please allow this letter to respond to your letter of August 28, 2003. We are currently
awaiting an expert report which will address many of the concerns raised in your letter; we will
also attempt to supplement our discovery requests as the cast: continues. I will also attempt to
have an itemized list of damages prepared as soon as possible. Once our lay witnesses have been
identified, I will provide you with their names and addresses. I would hope to have much of this
information to you by the end of September.
We will have color photographs of all pictures reproduced for you and forward them to
your office.
Rather than answer all of your questions individually, let me say at this time that we have
provided you with responsive documents and answers as they exist at this time. As discovery
continues, we will disclose additional documentation as that documentation becomes-available.
Once we have provided an expert report and identified witnesses and exhibits, I believe your
questions will be answered.
With respect to Mr. Secary's deposition, I do not wish to depose Nlr. Secary on current
expert opinions related to the current case. Rather, I only wish to depose him as a fact witness
concerning events that occrured, conversations with Ted Ansel and others, and evidence he may
have observed. I also wish to question him on events leading up to the original subdivision
approval, the manner in which the original storm water calculations were made and his testimony
before the Silver Spring Township Planning Commission. I will not question him on any expert
opinion nor calculations he made after the institution of legal action in this case.
Page 2
September 19, 2003
Silver Spring Golf Course v. Sample Bridge Associates
Since his testimony is in the nature of a fact witness, I am entitled to take his deposition
pursuant to Pa. R. Civ. P. 4003.1. Rule 4003.5, although not crystal clear, applies only to facts
known and opinions held by our expert "... in anticipation of litigation or for trial." See also,
Scott v. DeFeo, 46 D. & C. 4 s 353 (2000). It therefore, in my judgment, has no application to the
current request for a deposition. I will, of course, seek discovery of Mr. Secary's expert opinion
through Pa. R. Civ. P. 4003.5.
Please let me know if you continue to object to the deposition of Ron Secary. I presume
by your letter that you do not object to our deposition of John Gleim, and I will ask my paralegal,
Penny Rogers, to schedule that deposition.
Should you have any questions or wish to discuss this matter further, please do not
hesitate to give me a call.
Sincerely yours,
Dennis E. Boyle
DEB/jdh
Cc: T. Ansel
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SSGC, INC., d/d/a SILVER
SPRING GOLF COURSE,
Plaintiff
VS.
SAMPLE BRIDGE ASSOCIATES,
Defendant
Deposition of:
Taken by .,'
Date ;
Place
Before
APPEARANCES:
No. 02-692 Civil Term
RONALD M. SECARY, P.E.
11
Plaintiff
March 12, 2004, 9:35 a.m.
200 North Third Street
Harrisburg, Pennsylvania
Ann M. Wetmore
Reporter - Notary Public
NAUMAN, SMITH, SHISSLER & HALL
By: DENNIS BOYLE, ESQ.
For - Plaintiff
RHOADS & SINON LLP
By: TIMOTHY J. NIEMAN, ESQ.
For - Defendant
ALSO PRESENT:
TED W. ANSEL
- FILIUS & MCLUCAS REPORTING SERVICE, INC. -
Narrisburv 717-236-06>4 V-, »z o-c cn.a n.. - ... -..
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3
STIPULATION
It is hereby, stipulated by and between
counsel for the respective parties that sealing,
certification and filing are hereby waived; and
all objections except ELS to the form of the
question are reserved to the time of trial.
MR. BOYLE: Before: we go forward, I would
I
Just like to put on the record the scope of this
deposition so we are both clear. I don't think we
have any dispute. The scope of this deposition is
just to inquire into factual areas concerning
Phase III of The Peninsula development in Silver
Spring Township, Cumberland County, Pennsylvania.
I understand that Mr. Secary has been
retained as an expert by Sample Bridge Associates,.
which is the defendant in this case. Therefore,
we have sort of an odd circumstance where you are
both an expert witness, in which case we are not
permitted to take your deposition, and a fact
witness, in which case we are permitted to take
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your deposition. Therefore, I intend to inquire
in today only to factual matters surrounding the
circumstances of the development, any problems
related to the development and things of that
nature that do not involve your expert opinion.
- FILMS & IWCLUC-15 REPOIZ=G SER17CE, INC.
Hamsburg72 -236-0623 York717-845-0418 P.41-800-233-9327
4(
1 I suppose, Tim, if we go beyond that do you
C
= 2 want a standing objection now or do you want to
3 make an objection at the time?
4 MR. NIEMAN: If you go into opinions?
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MR. BOYLE. Yeah.
MR. NIEMAN: I mean obviously I'm going to
object generally to all questions that would
relate to opinions. But I will probably object a:
we go on and there may become a time where I might
direct the witness not to answer if I feel it's
going beyond what's allowed and we can talk about
that.
And just so we're clear also, Mr. Secary it
hasn't been determined yet whether he will be a
testifying expert or just a consulting expert
under the rules, but lie is an expert that is
assisting us with the case and I think the rules
are the same with respect to both in terms of
being able to take a deposition.
MR. BOYLE: I thank that's true. And the
only other point I want to clarify is if you are
going to testify as an expert, it's necessary
we're entitled to an expert report.
MR. NIEMAN: Right.
MR. BOYLE: And this deposition is not and we
- FILIUS & McLUCAS RLPORTLNG SERVICE,YNC. -
Humsburg,717-236-0623 York -17-845-6418 PA 1-800-233-9327
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SSGC, INC., d/d/a SILVER. No. 02-692 Civl Term
SPRING GOLF COURSE,
Plaintiff
Vs.
SAMPLE BRIDGE
ASSOCIATES,
Defendant
Deposition of:
Taken by
.4
JOSEPH SNYDER
Plaintiff
Date July 21, 2003, 11:12 a.m.
Place 200 North Third Street
Harrisburg, Pennsylvania
Before Ann M. Wetmore
Reporter - Notary Public
APPEARANCES:
NAUMAN, SMITH, SHISSLER & HALL
By: DENNIS BOYLE, ESQ.
LUCINDA GLINN, ESQ.
For - Plaintiff
RHOADS & SINON
By: TIMOTHY S. NIEMAN, ESQ.
For - Defendant
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Ha,rt vu+*Y 717-2,36-0623 York 1727-1745-0418 241-a00-233-93217
Exam./Boyle -- Snyder 7
1 A. Approximately fall of '93 I believe. And, again,
?? 2 I haven't looked at that exact date in a while.
3 Q. Now, the part of The Peninsula that adjoins the
4 golf course is Phase III. Is that correct?
5 A. That is correct. That's in the name of Sample
6 Bridge, Inc.
7 Q. What do you mean in the name of?
8 A. About five and a half years ago, it will be six
9 years in December, there were at that time two
10 additional shareholders of the Sub S corps. and
11 they were also limited partners individually in
12 both corporations and an agreement was reached to
13 purchase them out of the! partnership and the Sub S
14 corps. over time with notes and cash.
15 Q. Has their interest been fully purchased at this
16 point?
17 A. Correct, yes.
18 Q. Who were those individuals?
19 A. Timothy F. Nicholson, N-i-c-h-c-l-s-o-n, and
20 Robert N. as in Nathan, Elkins, E-1-k-i-n-s.
21 Q. Who was primarily responsible for the concept
22 behind The Peninsula
Phase III?
,
23 A. I would say me.
24 Q. And who was responsible for the design work of
*90
25 Phase III?
:1LIUS i. YlcL.IIGiS REPOF::T??G SE3YICE. NC.
Hnmsourq 717-236-0623 Yo.k S17-843-0418 AY 1-d00-233-4327
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Exam./Boyle -- Snyder g
A. The original design work was done by H. Edward
Black & Associates in Harrisburg.
Q. Professional engineers?
A. Landscape architects.
Q. And did they prepare the original site plan?
A. Land development plan and acquired all permits and
approvals from the state and the township to
develop the property. I'm sorry, they acquired
the preliminary plan and then when we got around
to doing the final land development plan, by then
I had switched firms to Hartman Associates of Camp
Hill. The specific engineer I worked with there
is Ron Secary, S-e-c-a-r-y. He left that firm
about two years ago. He's now with Herbert
Rowland & Grubic. I think they refer to
themselves as HRG. They are a Harrisburg firm and
they are engineers, civil engineers.
?. And so has Ron Secary been your engineer from that
time?
?. Correct.
2. To the present?
k. From the time of filing the final, plan for Phase
III through to the present.
2. In terms of obtaining the permits, doing the plan,
what was your involvement. in that?
-IT HIS 3 b7cLUC.IS =ORTNG SERWCZ INC. -
Rm,mo...y,17-736-IJ623 1"11717-846-6418 RA 1-,'00$33-9327
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Exam./Boyle -- Snyder 9
-- 1 A- In the initial conceptual analysis of the economic
2 development of the property, obviously I would be
3 heavily involved reviewing various concepts,
4 sketches that Black had developed in terms of lot
5 configurations and streets, with their detailed
6 analysis of costs of developing sewer, water,
7 streets and then me making a final decision with
8 my partners on which of those conceptual plans to
9 proceed with as far as the final land development
10 plan that was filed with the township.
11 Q. In terms of storm water planning, were you
12 involved in that at all?
J
*no 13 A. No, that's a job of professional engineers.
14 Q. Did they discuss the storm water planning with you
15 at all?
16 A. That's their job to do the storm water planning.
17 Q. Were you yourself.concerned about any runoff on
18 the golf course?
19 A-.- Not in the least.
20 Q. Did you know if there would be any runoff on the
21 golf course?
22 A. No. As a matter of fact, under Pennsylvania law
23 when you develop property you are required to
24 distribute less water post development afd
25
I, predevelcpment. So, of course, I had no concerns
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Exam./Boyle - Snyder 10
at all because I had professional engineers
designing it.
Q. And you are telling me you were relying upon their
calculations?
IA. Correct.
Q. Did they ever tell you there was a problem with
those calculations?
A. No.
Q. I have a copy of the original plan if you need to
refer to it, but it indicates that there's an
easement on Lot 15 or 16 I believe. Are you
familiar with that?
A. Yeah, there's another one on Lot 8 I believe also.
Q. Okay. It shows the easements running onto the
golf course property. Did you believe there was
an easement onto the golf course property at that
point in time?
A. Of course there would be because the water has to
make its way from my property to the Conodoguinet
Creek and the golf course lies between my property
and the Conodoguinet Creak.
Q. Were you aware of any dedicated easement though?
A. Again, I relied on my engineers for all of that
information as far as what was dedicated,
locations of them, anv details at all involving
FILMS:- McLUCAS PEPOR?NG SEAVICZ INC. '
Hamsuzn., :17-336-0623 York 717-845-c4IS PA I-600-333-5327
Exam./Boyle - Snyder
11
1 those would be up to the engineers.
2 Q. The original development plan also reflected water
3 would be discharged into a pond. Do you recall
4 that?
5 A. No, I don't. Again, that's the engineer's job.
6 Q. So, you just relied upon the engineers to do all
7 of that?
8 A. Correct.
9 Q. Did you ever become aware of the fact that that
10 original plan was not correct?
11 A. I'm still not aware it's not correct. That's an
12 accusation by you which I totally disagree with.
v' 13 Q. So, you believe the original plan was correct?
14 A. What do you mean correct? Sir, as far as I'm
15 concerned, the plans were approved by the township
16 and the state so as far as correctness, you know,
17 when I get a plan approved by the township and the
18 state, if that's what you are referring to as
19 correct. Obviously I don't know what you are
20 talking about.
21 Q. Well, I'm showing you here a copy of part of the
22 Phase III development. Does this look familiar at
23 all?
24 A. Of course.
25 Q. You'll see between Lots 15 and 15 it shows a
- rILiIS o WcLUCAS REPOR77NG SERI'IG.INC. -
Hnnisbar? T17--236-11623 .orrc 717-345-o41S PA 1-100-733-9327
Exam./Boyle - Snyder 15
- 1 on his concerns about the storm water.
*00 2 So, the reason this plan was developed was I
3 went back to my engineers. It was my clear
a feeling after those two meetings with him that he
5 was impossible. There was no way we could work
6 out any reasonable solutions to what he believed
7 was a problem, which I to this day claim there is
8 no problem, and instructed my engineers if they
9 could to find a way to solve the storm water
10 issues as far as us on our site getting it to the
11 Conodoguient Creek without Mr. Ansel.
12 And we did that. we filed the plans, or they
13 did, my engineers and they are fully approved by
14 Silver Spring Township, Cumberland County and the
15 Department of Environmental Protection. And we
16 are proceeding to complete those improvements at
17 this time.
is Q. This conversation you had with Mr. Ansel, do you
19 recall when that was?
20 A. I don't have an exact date. I don't remember the
21 exact date.
22 Q. It was prior to the submission of this plan?
23 A. Ch, yes, absolutely.
24 Q. Six months prior, a year prior?
25 A. No, it would have been -- I don't recall. The
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Exam./Boyle - Snyder 16
timing is vague. In between these two, but it's a
lot more than -- it was probably two years prior
or something like that.
Q. Two years prior?
A. Two or three.
Q. okay.
A. It was much more than six months to a year, let's
put it that way. And, of course, this was a much
more expensive plan to develop versus working with
our neighbor on that easement into that pond. But
given the fact that he was talking outrageous
requirements of the ladies' tee and green and
expansion of a pond, this became a much more
reasonable way for me to proceed in the
development of my project.
Q. Now, whose idea was it to create this structure?
A. Ron Secary's.
Q. Ron Secary's?
A. Yes.
Q. And was he responsible for the storm water
calculations for this?
A. Correct.
Q. The rock lying swale and the rock energy
dissipator, were those Mr. Secarv's ideas?
A. Yes.
- SILIUS G VIc=aC -C REPORTIA'G 9ER11IC°. ,'NC. -
Huirismirg T:7-?56-0623 1"0H, 717-1345-641H PA S-300-.'55-9327
Exam./Boyle - Snyder 20
1 the entire way to the Co:nodoguinet Creek?
2 A. That's on Lot 8 and I referred to that earlier.
3 Q. This pipeline hasn't been constructed the whole
4 way down though, has it?
5 A. We believe it has. My engineers are in the
6 process of confirming that.
7 Q. So, Mr. Secary would know whether it was or not?
a A. Correct.
9 Q. Whose responsibility was it to build that?
10 A. Sample Bridge Associates.
11 Q. But you believe it has but aren't sure at this
12 point?
13 A. That's correct. I know it has not been dedicated.
14 MR. BOYLE: Can we Just take a break for a
15 couple of minutes?
16 MR. NIEMAN: Sure.
17 (Recess taken)
18 BY MR. BOYLE:
19 Q. You indicated that you never personally went or
20 never saw anything related to the runoff issue.
21 Is that correct?
22 A. No, I said Ted Ansel claimed to have damage but he
23 never proved to me he had any. He never showed me
24 any pictures or any evidence. I mentioned the
25 golf course strip where he showed me that pond and
JfMrS,> McLUC IS i2EP0R:C!11JG SERVICE, :NC.
Humsourg 517-?36--)623 ';aria '17-895--,418 .4 14300-233-9327
Exam./Boyle - Snyder 21
1 he sat there while people were playing golf all
2 around him claiming that there was water damage,
3 but he never has proved to me nor has he proved to
4 my engineer who met with his engineer on a couple
5 of occasions--
6 Q. That was going to be my next question.
7 A. --Ron Secary, and I believe Ron met with his
8 engineer who I believes name is Bud Grove. I'm
9 not sure what Bud's real first name is, but I
10 think everybody calls him that.
11 Q. I'm not sure what it is either.
12 A. But that was Ted Ansel's engineer and at that
13 point what was going on was Ted and I had had.that
14 initial meeting. This was in between the time of
15 the second meeting I described at the barn where
16 he stopped all discussions. It was after the
17 first meeting where he took me down on the golf
18 course to show me the pond and that's when he
19 first told me his concerns about storm water. And
20 then we both later agreed a couple of weeks later
21 to have our engineers meet and talk about what his
22 issue was. And they may have met on more than one
23 occasion, I mean maybe two or three times. Ron
24 would know better than me, but I had authorized
35 him to do that.
- F71MTS & ,14cLAC15 REFQRTING SERIrf=, IIJC. -
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Exam./Boyle - Snyder 22
1 Q. But Ron did not report to you seeing any water
2 damage?
3 A. No. As a matter of fact, he made it clear to me
4 that there wasn't any that he could see. We at
5 that point in time, of course, we were just trying
6 to implement our plan and that's why I thought
7 frankly his engineer and my engineer might be able
8 to work something out, but apparently they weren't
9 able to do that.
10 Q. Do you know if your engineer ever met with Ted
11 Ansel?
12 A. Ted may have been at the meeting with Bud Grove.
13 He probably was because of his knowledge of the
14 course and that easement you just showed me where
15 it would actually physically fall on this course
16 and so forth.
17 Q. Okay.
18 A. But I was not at that meeting so I can't
19 personally testify that I was there. I wasn't
20 there with the two of them.
21 Q. And anything you would have learned would have
22 been from what Mr. Secary reported back to you?
23 A. That is correct.
24 MR. BOYLE: I don't have any further
25 questions.
77ULTS& WCLUCis RE20PTE C- 9EiRA'r=. adc. -
YnrrzsGssrg?t7-moo`-J623 Tm?<,?.T-B-(a-?i{75 PA1-o'00-233-932;
1 IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
2
3
SSGC, INC. D/B/A
4 SILVER SPRING GOLF COURSE
PENNSYLVANIA,
5 PLAINTIFF
6 VS. NO. 03-5935
0
7 SAMPLE BRIDGE ASSOCIATES,
DEFENDANT
8
9
r°
10
11 VOLUME 2
12 r`
DEPOSITION OF: TED WILLIAM ANSEL
13
TAKEN BY., DEFENDANT
14
BEFORE: LISA A. HANSELL, REPORTER
15 NOTARY PUBLIC
16 DATE: APRIL 13, 2004, 9:35 A.M.
17 PLACE: RHOADS & SINON, LLP
ONE: SOUTH MARKET SQUARE
18 HARRISBURG, PENNSYLVANIA
19
1 20
21 APPEARANCES:
22 NAUMAN, SMITH, SHISSLER & HALL
BY: LUCINDA C. GLINN, ESQUIRE
23 FOR - P LAINTIFF
24 RHOADS & SINON, LLP
BY: TIMOTHY J. NIEMAN, ESQUIRE
25 FOR - D EFENDANT
GEIGER & LORIA REPORTING SERVICE - 800-222-4577
ANSEL, TED
4/13/2004
SSGC VS
SAMPLE BRIDGE ASSOCIATES
to
l water issues were addressed and resolved
2 Q And at that time did you raise with the
3 township or at the public meeting the fact that you had not
4 granted an easement over your property?
5 A I don't specifically recall that I'm certain
6 that if I was asked that I did; however, I don't think the
7 preliminary plan showed an easement I think it showed the
8 level spreader. I'm not even sure if they had a storm water
9 plan with the preliminary plan to be honest with you.
to Q Okay-
I I A I may have referred to the storm water plan
12 that had been presented by H. Edward Black, although I think
13 that is the firm that - I think they were the engineer, so
14 to speak on the submission of the preliminary plan, but 1
15 don't know that for a fact Obviously, I'd have to review
16 the plans.
17 Q Okay. What was the response to your concerns
18 at that point in time?
19 A The plan was approved conditionally.
20 Q Okay
21 A The condition of approval was that storm water
22 - all storm water issues existing between the developer
23 and the golf course would be resolved
24 Q Now, back in'91 when you did this, were you
25 represented by counsel at that point in time?
12
1 plan or anything like that. I think, as I recall, it was
2 more simply as a consultation. -
3 Q Okay. Did he come down and inspect the site?
4 A I didn't - to tell you the truth, he probably
5 did. ["in sure he probably did. I know he didn't have to
6 very much because he had played the golf course many, many
7 times, and that's how I knew him to begin with.
8 Q Now, the 1991 approval of the preliminary
9 plan, did you take any appeal from that to the Court of
10 Common Pleas?
I I A I don't know.
12 Q Do you have any recollection of an appeal?
13 A My lawyers would be able to answer that
14 There's been so much.
15 Q Do you recall back in the 1991 or'92 time
16 frame going m court over this issue?
17 A I do not. As I do recall, I think it was the
18 developer's position at the time that the issues would be
19 more specifically addressed when Phase BI was to be dealt
20 with.
21 Q Okay.
22 A But that's just a general recollection. I
23 retail so many questions about the preliminary plan where
24 the developer's representatives were simply saying, well,
25 that isn't what we do at preliminary plan, that will be done
11
1 A That's an interesting question. To answer 1
2 that honestly, Sack Sullivan, who is from the firm of 2
3 Nauman, Smith, Shissler & Hall, is a neighbor, resides along 3
4 the bridge at Sample Bridge Road, is a very old, very 4
5 trusted, very dear friend He was very, very much involved 5
6 with all of the hearings that we've referred to in this 6
7 deposition. He and I discussed these matters at great 7
8 length and at great detaff. He certainly acted as a friend 8
9 and certainly acted asan attorney in those conversations. 9
10 As far as billing, I'm not sure Because we were so much 10
1 I involved - I don't know. 11
12 Q Okay. And back in'91, did you retain or 12
l3 consult with an engineer to review the am= water issues? 13
14 A As I recall, I did. 14
15 Q Who did you deal with? 15
16 A Bud Grove. 16
17 Q So you've been involved with Bud Grove since 17
18 1991 on this issue then: is that accurate? 18
19 A I would say so. I'd have to verify that He 19
20 is the only engineer that I've consulted with on - I mean 20
21 throughout the entire history of this circumstance. 21
22 Q Do you have any documents or plans or reports 22
23 or anything from Mr. Grove that predate the litigation? 23
24 A I don't think so. He never represented me in 24
^_5 a meeting, for example, at the approval of the preliminary 25
later, everything will be done later. Whenever you
expressed a concern, well, we'll be dealing with that later,
as developers often do.
Q And did you discuss that issue with
Mr. Sullivan?
A Which issue?
MS. GL.INN: I would object to attorney/client
privilege.
MR NIEMAN: Okay. Idon't think it applies
here because, obviously, he's taking a defense of relying on
the advice of counsel in tests of why he his and has not
done certain things, but we can fight about that at a
different time.
MS. GUNN: As far as conversations that they
13
had.
MR NIEMAN: Sure, I understand.
BY MIL NIEMAN:
Q In addition to having an engineer and attorney
look at this issue, Mr. Defter testified that you may have
bad a construction company come out and take a look at
possible ways to deal with this issue?
A I had a friend of mine named Mark Eshelman of
Mark Crete Construction come out with me - he's played the
golf course many times, and he's done work for me on can
paths in the past- and look at this very generally. As a
4 ttrages i u fo _i s)
GE!GER & LCRIA REPORTING SERVICE - 300-2?=-4577
ANSEL, TED
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SSGC VS
SAMPLE BRIDGE ASSOCIATES
14
1 matter of fact, on the day that he was out to look at it
2 with me we were up along- I don't know what the name of
3 the street - where Lots 15 and 16 are and happened to run
4 into Ron Secari, and Ron was there on that day and - well,
5 the three of as spoke briefly.
6 Q What was the conversation? First off, when
7 did this take place? When did the conversation take place?
8 A I don't know the date.
9 Q Roughly, though, what yearl
10 A I don't know.
11 Q Five years ago, ten years ago?
12 A Well, it was after - I mean, the streets were
13 in and - I would say it's not more than five years ago.
14 Initially, I had tried to develop a dialogue with Mr. Snyder
15 and was unable to get him to return phone calls or respond
16 to letters, and then I tried through Mr. Secari to develop a
17 dialogue, and after a period of attempts in which Mr. Secari
18 tried to be helpful he made it clear to me that he was no
19 longer to carry on those types of conversations with me, and
20 my meeting with Mark would have been after that
21 Q Okay. Do you know when? I mean, You don't
22 have an idea about when, though?
23 A I think it was in the fall, and I would expect
24 that it was - and, you know, time goes really fast I'm
25 not trying to be vague. I'm really not trying to be vague.
16
1 pipe and continue it directly to the creek and use the
2 direct discharge method of dealing with storm water that has
3 been advocated by Mr. Serari throughout the entirety of the
4 Peninsula development and simply continue using that, and
5 Mark indicated that he felt there would be no problem with
6 that at all, nor would it be very expensive. Now, that's a
7 relative term.
8 Q Did he give you a quote?
9 A Never.
10 Q Did he give you a rough idea?
11 A No.
12 Q Did you ever ask for a quote?
13 A No, I didn't, because I didn't fed that it
14 would be proper for me to burden Mark with time preparing a
15 quote since Mr. Snyder would mostly choose to use Mr. Gleim
16 or - I mean, it wouldn't really be my job to implement it,
17 and at the time I had been advised to try to - again, to
18 try to continue to pursue a dialogue with Mr. Snyder to
19 settle this matter without having to go to court As a
20 matter of fact, I recall meeting with you and Mr. Hurley at
21 the golf course where we actually looked at these things,
22 and it was, you know, again, in a belief on my part that
23 this should not be a difficult matter to settle. I just was
24 trying to get some ideas of things that might work that
25 wouldn't be harmful to me.
15
1 Q And I know this was awhile back so 1 1
2 appreciate that 2
3 A It might be three years ago. It might be 3
4 four. It might be two. I honestly don't know. And 1 4
5 checked - I looked in my desk calendar, and I don't even 5
6 have a note of it You know, it was one of those deals 6
7 where I called Mark and he said, yeah, IT be out tomorrow, 7
8 and we looked at it 8
9 Q So what was discussed? 9
to A Well, I explained to him the circumstances as 10
1 l they appeared to be, what's likely to happen. We talked 11
l2 specifically about the water that was going to be running 12
13 down that hill, and we talked about ways that perhaps the 13
14 water could be accommodated for effectively and whether the 14
15 construction could be done. 15
l6 Q And what was the conclusion? 16
17 A That there were a couple alternatives and many 17
18 variations upon them and that it would not be an engineering 18
19 miracle to accommodate them. 19
20 Q And what were those solutions? 20
21 A One was to - let's see her. At one time- 21
22 1 think the original plan that was approved, Tim, called for 22
23 a pipe to take the water to the bottom of the hill through 23
24 an easement that never existed to a pond that never existed, 24
25 and my question was how hard would it be to simply take that 25
17
Q Now, you said that you were advised to try to
pursue a dialogue with Mr. Snyder. Who advised you to do
that?
A Wen, I would say everybody. Sack Sullivan
did. Dennis Boyle did.
Q what did they tell you?
A They said this is a matter, as I recall, that
you should let him know that you're open to discussing the
matter in an attempt to resolve it
Q And did that advice go back to 1991 when
Mr. Sullivan was advising you with respect to the
preknvnary plan?
A I don't recall.
Q Did anyone else give you that advice,
Mr. Grove or anybody else?
A No, not that I recall.
Q At that time did you consider filing a lawsuit
over these issues?
A Gee, I - at what time?
Q Well, when did you first start considering
filing a lawsuit?
A I don't know the answer to that.
Q Do you have a rough idea when it may have
been'?
A That I first thought of it -
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GEIGER & LORIA REPORTING SERVICE - 300-222-4577
ANSEL, TED
411 312 0 0 4
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1 Q Yes.
2 A - as a possibility? Geez, it's Common
3 knowledge that these things can lead to that It was always
4 my effort to try to resolve the matter out of court, even up
5 to when you and Jack Hurley were out.
6 Q Sure. Back in'91, did you consider filing a
7 lawsuit at that point?
8 A No, I didn't, because I - at that time, as I
9 recall, the approval was conditional and I had faith that-
10 to begin with, I never dreamt that a developer would present
l 1 a plan showing an easement that did not exist or that facts,
12 like the existence of a pond, would be misrepresented.
13 Q Okay. And rll get to this a little later,
14 but in 1996, I believe it was, when the final Phase III
15 approval was submitted, at that point in time when that was
16 approved did you consider filing a lawsuit at that point in
17 time?
18 A I don't know.
19 Q All right Now, if we can get back to you
20 discussions with Mark Crete, you said that one alternative
21 was a pipe directly to the creek. Were there any other
22 alternatives that you discussed with that company?
23 A We discussed the option of taking the water
24 directly to the pond that exists downhill from the ladies'
25 tee at four.
19
1 Q And what would happen to the water then? What
2 would that plan be composed of!
3 A Well, generally speaking - and it was,
4 remember, a very, very -just a conceptual conversation.
5 We pretty much agreed that the volume of water that the pond
6 caa accommodate would not be great enough to accommodate for
7 the level of water being discharged from the development
8 We discussed, you know, the possible complications of that,
9 obviously, which would virtually aasum having to enlarge
10 the pond; and, if we did have to enlarge the pond, what
I1 would be the most feasible way to do that, where to do it
12 considering the play on No. 4 and on No. 3, and then how m
13 drain a larger pond
14 Q Did you get a price quote on chat?
15 A Na.
16 Q And was this ail done before the rock line
17 swale was proposed or was being built down the hillside?
18 A It was done before it was being built.
19 Q Was it done before or after the time that it
20 was first proposed?
21 A I don't know. I don't know. I believe it was
22 before, but I don't know.
23 Q Were there any other solutions discussed
24 between you and Mark Crete'?
25 A Improving or building a swale at the base of
SSGC VS
SAMPLE BRIDGE ASSOCIATES
2(?
I the hill. may have been discussed - it wouldn't shock me
2 that it was - and continuing the swale along the base of
3 the hint unlit it could be connected to the man-made
4 drainage ditch without interfering with play on the fourth
5 hole.
6 Q Okay. And, again, you didn't get a price
7 quote on that either?
8 A No.
9 Q Was it your recollection or you belief that
10 that would have been an expensive resolution?
11 A It would cost a hell of a lot less than what
12 was placed on that hill. I can tell you that
13 Q Okay. Did you run any of these proposals by
14 Mr. Secari or Mr. Snyder?
15 A Mr. Semri had been, I believe, instructed not
16 to discuss these things with me, and Mr. Snyder has not
17 shown a willingness to discuss anything with me since 1996
18 as I recall - no, maybe a tittle later than that, but it's
19 been years. He doesn't return calls.
20 Q Are you aware of the fact that within the last
21 month. or so that, through me, Sample Bridge has requested a
22 proposal in terms of trying to deal with the storm water
23 issue on your property?
24 A I am aware that you or your office - I'll
25 just say you indicated that Mr. Snyder would be willing to
21
l sell me Lots 15 and 16 at a reduced price and that you may
2 have indicated - I can't specifically recall that - what
3 was your question again?
4 Q Whether or not you were aware within the last
5 month or so that, through a letter that I sent to you
6 coumsel, we requested a proposal from you to try to deal
7 with this issue to see if we could start a dialogue on
8 dealing with it.
9 A I can't say that run specifically aware of
10 that
11 MS. GLINN: It appears this is going to
12 attorney/client privilege again. It sounds like you're
13 requesting whether he was advised to do something or -
14 MR NUEMAN: rmjust asking if he's aware of
15 the fact that that offer was [Wade, and I think it's
16 paro.cularly relevant in this case because you're [Waling a
17 claim for punitive damages on the basis that we haven't
18 tried to remedy or deal with this problem, and, as you're
19 aware, because you were on the phone call -
20 MS. GLiNN: Yes.
21 MR. NMNIAN: - when I discussed that with you
22 and followed it up with a letter to Dennis that we had asked
23 for some son of proposal in light of the fact that we
24 finally received the damage calculation in terms of the
25 cleanup costs for the preceding years. So that's what fm
R /Panac 1R to 7'11
GE?GER & LCRIA REPCRTING SERVICE - 800-222-4577
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Response to the Motion for Leave to Depose Expert Witness was served by United States First
Class Mail, postage pre-paid, upon those person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market square, 12' Floor
P. O. Box 1146
Harrisburg PA 17108-1146
to
E. Boyle, Esquire
Dated: May ±7?_, 2004
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SSGC, INC. d/b/a/
SILVER SPRING GOLF
COURSE,
Plaintiff
V.
SAMPLE BRIDGE
ASSOCIATES,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 03-5935 EQUITY TERM
ORDER OF COURT
AND NOW, this 24`h day of May, 2004, upon consideration of Defendant Sample
Bridge Associates' Motion Pursuant to Pa. R. Civ. P. 4003.5(a)(2) To Depose Expert
Witness, and of SSGC's Response to Defendant's Motion Pursuant to Pa. R.C.P.
4003.5(a)(2) for Leave To Depose Expert Witness, a discovery conference is scheduled
in chambers of the undersigned for Thursday, June 17, 2004, at 1:30 p. m.
Dennis E. Boyle, Esq.
?ucinda C. Glinn, Esq.
200 N. Third Street
18`' Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Attorneys for Plaintiff
Jack F. Hurley, Jr., Esq.
Timothy J. Nieman, Esq.
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Attorneys for Defendant
,> 1*
os -a q -o'.-/
:rc
BY THE COURT,
YMI iASNNa d
£s T add hz AVH h00Z
AbV ONOAa!draNS 20
Jack F. Hurley, Jr., Esquire
Attorney I.D. No. 24414
Timothy J. Nieman, Esquire
Attorney I.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 Defendant
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
SAMPLE BRIDGE ASSOCIATES
Defendant
NO. 03-5935 EQUITY
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION LAW
NO. 02-692
DEFENDANT'S MOTION PURSUANT TO PA.R.CIV.P. 4019
TO PRECLUDE CERTAIN EVIDENCE AT TRIAL FOR FAILURE TO COMPLY
WITH DISCOVERY ORDER
AND NOW comes Defendant, Sample Bridge Associates ("Sample Bridge"), pursuant to
Pa.R.Civ.P. 4019, and files this Motion to Preclude Certain Evidence at Trial for Failure to
Comply With Discovery Order, stating as follows:
Plaintiff SSGC, Inc. d/b/a Silver Spring Golf Course ("SSGC") initiated an action
at law (the "Action at Law") against Sample Bridge on or about February 7, 2002, wherein
SSGC seeks damages for alleged violations of the Storm Water Management Act ("SWMA"), 32
524154.1
P.S. §§680.1 et M. common law trespass or private nuisance. SSGC's Complaint seeks
recovery for damages allegedly suffered by SSGC as a result of storm water drainage from
Sample Bridge's neighboring property.
2. On or about November 12, 2003, SSGC initiated an action at equity (the "Equity
Action') against Sample Bridge, making basically the same claims as were made in the Action at
Law. The Action at Law and the Equity Action have been consolidated by this Honorable
Court's Order dated April 6, 2004 (the "April 6, 2004 Order"). A true and correct copy of the
April 6, 2004 Order is attached hereto as Exhibit "A".
3. The April 6, 2004 Order also established a "discovery deadline of April 30, 2004,
with expert reports due thirty days thereafter ..."
4. The April 6, 2004 Order was entered "upon consideration of the stipulation of
counsel" and was designed to, among other things, resolve Sample Bridge's February 26, 2004,
Motion to Compel. The Stipulation of Counsel re: Motions to Compel and Consolidation of
Cases (the "Stipulation') was filed on or about March 23, 2004, and provides in Paragraph 6 that
"[t]he parties have agreed to resolve the Motions to Compel by establishing a discovery deadline
and a date certain for the exchange of expert reports. Specifically the parties have agreed on an
April 30, 2004 discovery deadline with expert reports due thirty days thereafter." (See Exhibit
"A"
5. In its Motion to Compel, Sample Bridge sought, among other things, a Court
Order compelling responses to its Interrogatory No. 12 and Request for Production No. 7.
Sample Bridge's Interrogatory No. 12 requests that SSGC "[s]tate with particularity any and all
damages that you are claiming in the above-referenced matter, explain how such damages were
-2-
calculated and identify all documents related thereto." Sample Bridge's Request for Production
No. 7 requests "[a]ny and all documents relating to any and all damages that you claim in the
above-captioned matter." Sample Bridge's Interrogatories and Request for Production were
served on SSGC on July 9, 2003.
6. Pursuant to the April 6, 2004 Order, and as agreed to by the parties in the
Stipulation, SSGC was required to produce the all the information and documents concerning the
damages it is claiming in this case by April 30, 2004.
7. By letter dated May 28, 2004 (the "May 28, 2004 Letter") - which is twenty-eight
days after the expiration of the discovery deadline, almost one year after SSGC was served with
Sample Bridge's discovery requests, over two years after initiation of the claim, and thirteen
years after SSGC became aware of the alleged storm water issue (Ex. "B", Ansel Depo., pp. 8 -
12) - SSGC provided information concerning its alleged damages. The May 28, 2004 Letter
states as follows:
Please allow this letter to serve as a supplement to
Plaintiff's Answers to Defendant's Interrogatori.es. With respect to
Interrogatory No. 4, Plaintiff adds the following witnesses to its
witness list: Mark Eshelman of Mark-Crete, Inc., William Cook,
Silver Spring Township Manager, Kelly Ketch, Silver Spring
Township Assistant Manager, and Bony R. Dawood, P.E., Silver
Spring Township Engineer.
With respect to Plaintiff's Answers to Interrogatory No. 12,
in addition to the damages already provided, Plaintiff has received
an estimate from Mark-Crete, Inc. in the amount of $219,275.00
for construction of a pipe mechanism to accommodate the
increased storm water flow, including the anticipated cost of
returning Plaintiff's property to a condition as close as possible to
its pre-development condition.
(A true and correct copy of the May 28, 2004 letter is attached hereto as Exhibit "C").
-3-
8. The information contained in the May 28, 2004 Letter, especially the information
concerning Mark-Crete, Inc., came as a surprise to Sample Bridge since the sole shareholder of
SSGC, Ted Ansel, testified during his deposition that while he had discussed the storm water
issue with Mark Eshelman of Mark-Crete, Inc. two to four years ago, he never asked for a quote.
Mr. Ansel testified that he "didn't feel that it would be proper to burden Mark with time
preparing a quote since Mr. Snyder [of Sample Bridge] would mostly choose to use Mr. Gleim
or - I mean, it wouldn't really be my job to implement it ..." (Exhibit "B", Ansel Depo., pp. 13
-16).
9. On or about June 7, 2004, counsel for SSGC forwarded the Mark-Crete, Inc.
quote to counsel for Sample Bridge. A true and correct copy of the June 8, 2004 letter and
Mark-Crete, Inc. quote is attached hereto as Exhibit "D".
10. The Mark-Crete, Inc. quote contains no information concerning what is expected
to be accomplished, how it will be accomplished and what the result of the proposed work will
be. Instead, the Mark-Crete, Inc. quote generally lists hours, equipment and supplies needed to
perform an undefined project. In short, the Mark-Crete, Inc. quote raises more questions than it
answers.
11. Because the discovery deadline expired almost one month before the additional
discovery responses contained in the May 28, 2004 Letter were provided to Sample Bridge and
over one month passed before the Mark-Crete, hic. quote was finally provided to Sample Bridge,
Sample Bridge was unable to depose a representative of Mark-Crete, Inc. or follow-up with
written discovery concerning the issues contained therein.
-4-
12. On June 16, 2004, the Honorable J. Wesley Oler, Jr. conducted a discovery
conference to address Defendant's Motion Pursuant to Pa.R.Civ.P. 4003.5(a)(2) for Leave to
Depose Expert Witness. During the discovery conference, Judge Oler denied the Motion on the
basis that the discovery deadline had passed and that further depositions could not be scheduled
without SSGC's approval. SSGC refused to allow additional depositions.
13. Defendant has been prejudiced by SSGC's late discovery responses in that it is
unable to obtain additional information concerning the Mark, Crete, Inc. quote through written
discovery and/or depositions and is unable to respond to the quote at trial because the quote is
vague and without supporting information. Further, Sample Bridge is unable to depose the
witnesses listed in the May 28, 2004 Letter.
14. Pennsylvania Rule of Civil Procedure 4019(a)(1)(viii) provides that "[t]he court
may, on motion, make an appropriate order if ... a party or person otherwise fails to make
discovery or to obey an order of court respecting discovery." Pennsylvania Rule of Civil
Procedure 4019(c)(2) provides that [t]he court, when acting under subdivision (a) of this rule,
may make ... an order refusing to allow the disobedient party to support to oppose designated
claims or defenses, or prohibiting such party from introducing in evidence designated
documents, things or testimony ..."
15. Sample Bridge respectfully requests that this Honorable Court enter an Order
prohibiting SSGC from introducing in evidence, or presenting; at trial, the witnesses listed in the
May 28, 2004 Letter and the Mark Crete, Inc. quote referenced in the May 28, 2004 Letter and
provided to Sample Bridge on June 8, 2004.
-5-
WHEREFORE, Defendant Sample Bridge Associates respectfully requests that that this
Honorable Court enter an Order prohibiting SSGC from introducing in evidence, or presenting at
trial, the witnesses listed in the May 28, 2004 Letter and the Mark Crete, Inc. quote referenced in
the May 28, 2004 Letter and provided to Sample Bridge on June 8, 2004.
Respectfully submitted,
RHOADS & SINON LLP
By:
Jack F. Hurl , Jr., Esquire
Timothy J. Nieman, Esquire
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendant
-6-
EXHIBIT "A"
SSGC, INC. d/b/a/
SILVER SPRING GOLF
COURSE,
Plaintiff
V.
SAMPLE BRIDGE
ASSOCIATES,
Defendant
SSGC, INC. d/b/a/
SILVER SPRING GOLF
COURSE,
Plaintiff
V.
SAMPLE BRIDGE
ASSOCIATES,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-0692 CIVIL TERM
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 03-5935 EQUITY TERM
ORDER OF COURT
AND NOW, this 6 h day of April, 2004, upon consideration of the attached
stipulation of counsel, it is ordered and directed as follows:
1. The actions at No. 03-5935 Equity Teen and No. 02-0692
Civil Term are consolidated for all purposes at No. 03-5935 Equity
Term;
2. Defendant's Motion to Compel at No. 02-0692 Civil Term,
filed February 26, 2004, is deemed moot, and the Rule issued on
March 2, 2004, on the motion is discharged;
3. Plaintiff's Motion To Compel Discovery at No. 02-0692 Civil
Term, filed March 2, 2004, is deemed moot, and the Rule issued on
March 5, 2004, on the motion is discharged; and.
4. A discovery deadline of April 30, 2004, with expert reports
due thirty days thereafter, is hereby established.
BY THE COURT,
Dennis E. Boyle, Esq.
200 N. Third Street
18`h Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Attorney for Plaintiff
Jack F urley, Jr., Esq.
Ti thy J. Nieman, Esq.
QlAe South Market Square
O. Box 1146
Harrisburg, PA 17108-1146
Attorneys for Defendant
JJ6s4l-er,?' J.
:rc
MAR 2 3 2004 V
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 03-5935 EQUITY
SAMPLE BRIDGE ASSOCIATES
Defendant
STIPULATION RE: MOTIONS TO COMPEL AND CONSOLIDATION OF CASES
Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, and Defendant, Sample Bridge
Associates, by and through their undersigned attorneys, stipulate as follows:
1. Plaintiff initiated an action at law (the "Action at Law") against Defendant on or
about February 7, 2002. The action at law is docketed with this Court at number 02-692 LAW.
2. Plaintiff initiated the instant equity action (the "Equity Action") or about
November 12, 2003.
3. Both the Action at Law and the Equity Action involve claims arising from storm
water runoff from Defendant's property onto Plaintiff's property.
4. On or about February 24, 2004, Defendant filed a Motion to Compel.
5. On or about March 2, 2004, Plaintiff filed its Response to Defendant's Motion to
Compel and filed its own Motion to Compel.
6. The parties have agreed to resolve the Motions to Compel by establishing a
discovery deadline and a date certain for the exchange of expert reports. Specifically, the parties
have agreed on an April 30, 2004 discovery deadline with expert report due thirty days
thereafter.
7. This agreement moots the Plaintiffs and Defendant's Motions to Compel.
0
508341.1
8. Further, the parties agree that the Action at Law and the Equity Action should be
consolidated pursuant to Pa.R.Civ.P. 213 since both actions involve common questions of law
and fact and arise from the same alleged transactions and occurrences. The consolidated actions
should proceed at docket number 03-5935 EQUITY.
WHEREFORE, Plaintiff and Defendant respectfully requests that the Court enter an
Order consolidating the Action at Law and the Equity Action and establishing an April 30, 2004
discovery deadline in consolidated action with expert reports due thirty days thereafter.
Respectfully submitted,
NAUMAN, SMITH, SHISSLER & HALL,
LLP
By.,
Dennis E. Boyle, Esquire
Lucinda C. Glinn, Esquire
200 N. 3rd Street, 18th Floor
P. 0. Box 840
Harrisburg, PA 17108-0840
(717) 236-3010
Attorneys for Plaintiff
RHOADS & SINON LLP
By: Jack F. Hurley, Jr., Esquire
Timothy J. Nieman, Esquire
One South Market Square
P. 0. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attomeys for Defendant
CERTIFICATE OF SERVICE
I hereby certify that on this eday of March, 2004, a true and correct copy of the
foregoing document was served by means of United States maul, first class, postage prepaid,
upon the following:
Dennis E. Boyle, Esquire
Nauman, Smith, Shissler & Hall, LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, Pennsylvania 17108-0840
EXHIBIT "B"
IN THE COUR'.C OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SSGC, INC. D/B/A
SILVER SPRING GOLF COURSE
PENNSYLVANIA,
PLAINTIFF
VS. NO. 03-5935
SAMPLE BRIDGE ASSOCIATES,
DEFENDANT
VOLUME 2
DEPOSITION OF: TED 'WILLIAM ANSEL
TAKEN BY: DEFENDANT
BEFORE: LISA A. HANSELL, REPORTER
NOTARY PUBLIC
DATE: APRIL 13, 2004, 9:35 A.M.
PLACE: RHOADS & SINON, LLP
ONE SOUTH MARKET SQUARE
HARRISBURG, PENNSYLVANIA
APPEARANCES:
NAUMAN, SMITH, SHISSLER & HALL
BY: LUCINDA C. GLINN, ESQUIRE
FOR - PLAINTIFF
RHOADS & SINON, LLP
BY: TIMOTHY J. NIEMAN, ESQUIRE
FOR - DEFENDANT
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prime development locations and incorporating some of what
is -- some areas that are on the Peninsula to make golf
holes to incorporate the whole thing into a project.
Q Okay. Now, as I understand it, obviously
Lexington Commons didn't go forward, and I believe that in
1991 was when the preliminary plan for the Peninsula was
approved. Does that sound right to you?
A You're their lawyer. You ought to know. I
believe it is, but I don't know the --
Were you aware when the preliminary plan for
the Peninsula was proposed or approved by the township?
A Yes. I wouldn't know the date. I recall it
being approved.
Q Were you involved in any way? Did you attend
any township meetings or anything regarding the plan?
A Oh, man, I attended a zillion meetings for the
-- there were numerous public hearings for Lexington
Commons; and there was a meeting for the approval of the
Peninsula preliminary plan, and, as I recall, I attended it.
Q Did you have the opportunity to review the
preliminary plan at that time?
A I reviewed so many plans both for Lexington
Commons and the Peninsula. I believe I did and it wouldn't
-- I don't even know how many were submitted until there
was an approval, so, you know, whether I actually approved
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the final preliminary plan that was approved I can't say.
We're going back 13 years.
Q Sure. Now, when you were at the meeting where
the preliminary plan was approved for the Peninsula, do you
recall whether or not you spoke at that public meeting or
not?
A I'm sure I did.
Q Do you remember what you spoke about?
A I'm sure that I spoke specifically about storm
water.
Q Do you remember what: you said?
A I'm sure that I made it very clear that there
were issues that were unresolved.
Q And what issues do you recall?
A Specifically, the issue at No. 4 ladies' tee.
There may have been others that I addressed at that time,
but I am sure I spoke about that.
Q And what issues did you speak about or what
did you say?
A Well, I made it clear that in -- that the plan
called for discharging water through a level spreader or out
of a level spreader at the top of that hill and that that
would not -- and that that would present or cause me to
incur damages, I was certain, and that I couldn't support
the approval of the preliminary plan unless these storm
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water issues were addressed and resolved.
Q And at that time did you raise with the
township or at the public meeting the fact that you had not
granted an easement over your property?
A I don't specifically recall that. I'm certain
that if I was asked that I did; however, I don't think the
preliminary plan showed an easement. I think it showed the
level spreader. I'm not even sure if they had a storm water
plan with the preliminary plan to be honest with you.
Q Okay.
A I may have referred to the storm water plan
that had been presented by H. Edward Black, although I think
that is the firm that -- I think they were the engineer, so
to speak, on the submission of the preliminary plan, but I
don't know that for a fact. Obviously, I'd have to review
the plans.
Q Okay. What was the response to your concerns
at that point in time?
A The plan was approved conditionally.
Q Okay?
A The condition of approval was that storm water
-- all storm water issues existing between the developer
and the golf course would be resolved.
Q Now, back in '91 when you did this, were you
represented by counsel at that point in time? .
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A That's an interesting question. To answer
that honestly, Jack Sullivan, who is from the firm of
Nauman, Smith, Shissler & Hall, is a neighbor, resides along
the bridge at Sample Bridge Road, is a very old, very
trusted, very dear friend. He was very, very much involved
with all of the hearings that we've referred to in this
deposition. He and I discussed these matters at great
length and at great detail. He certainly acted as a friend
and certainly acted as an attorney in those conversations.
As far as billing, I'm not sure. Because we were so much
involved -- I don't know.
Q Okay. And back in '91, did you retain or
consult with an engineer to review the storm water issues?
A As I recall, I did.
Q Who did you deal with?
A Bud Grove.
Q So you've been involved with Bud Grove since
1991 on this issue then; is that accurate?
A I would say so. I'd. have to verify that. He
is the only engineer that I've consulted with on -- I mean
throughout the entire history of this circumstance.
Q Do you have any documents or plans or reports
or anything from Mr. Grove that predate the litigation?
A I don't think so. He never represented me in
a meeting, for example, at the approval of the preliminary
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plan or anything like that. I think, as I recall, it was
more simply as a consultation.
Q Okay. Did he come down and inspect the site?
A I didn't -- to tell you the truth, he probably
did. I'm sure he probably did. I know he didn't have to
very much because he had played the golf course many, many
times, and that's how I knew him to begin with.
Q Now, the 1991 approval of the preliminary
plan, did you take any appeal from that to the Court of
Common Pleas?
A I don't know.
Q Do you have any recollection of an appeal?
A My lawyers would be able to answer that.
There's been so much.
Q Do you recall back in the 1991 or '92 time
frame going to court over this issue?
A I do not. As I do recall, I think it was the
developer's position at the time that the issues would be
more specifically addressed when Phase III was to be dealt
with.
Q Okay.
A But that's just a general recollection. I
recall so many questions about the preliminary plan where
the developer's representatives were simply saying, well,
that isn't what we do at preliminary plan, that will be done
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later, everything will be done later. Whenever you
expressed a concern, well, we'll be dealing with that later,
as developers often do.
Q And did you discuss that issue with
Mr. Sullivan?
A Which issue?
MS. GLINN: I would object to attorney/client
privilege.
MR. NIEMAN: Okay. I don't think it applies
here because, obviously, he's taking a defense of relying on
the advice of counsel in terms of why he has and has not
done certain things, but we can fight about that at a
different time.
MS. GLINN: As far as conversations that they
had.
MR. NIEMAN: Sure, I understand.
BY MR. NIEMAN:
Q In addition to having an engineer and attorney
look at this issue, Mr. Deiter testified that you may have
had a construction company come out and take a look at
possible ways to deal with this issue?
A I had a friend of mine named Mark Eshelman of
Mark Crete Construction come out with me -- he's played the
golf course many times, and he's done work for me on cart
paths in the past -- and look at this very generally. As a
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matter of fact, on the day that he was out to look at it
with me we were up along -- I don't know what the name of
the street -- where Lots 15 and 16 are and happened to run
into Ron Secari, and Ron was there on that day and -- well,
the three of us spoke briefly.
Q What was the conversation? First off, when
did this take place? When did the conversation take place?
A I don't know the date.
Q Roughly, though, what year?
A I don't know.
Q Five years ago, ten years ago?
A Well, it was after --- I mean, the streets were
in and -- I would say it's not more than five years ago.
Initially, I had tried to develop a dialogue with Mr. Snyder
and was unable to get him to return phone calls or respond
to letters, and then I tried through Mr. Secari to develop a
dialogue, and after a period of attempts in which Mr. Secari
tried to be helpful he made it clear to me that he was no
longer to carry on those types of conversations with me, and
my meeting with mark would have been after that.
Q Okay. Do you know when? I mean, you don't
have an idea about when, though?
A I think it was in the fall, and I would expect
that it was -- and, you know, time goes really fast. I'm
not trying to be vague. I'm really not trying to be vague.
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Q And I know this was awhile back, so I
appreciate that.
A It might be three years ago. It might be
four. It might be two. I honestly don't know. And I
checked -- I looked in my desk calendar, and I don't even
have a note of it. You know, it was one of those deals
where I called Mark and he said, yeah, I'll be out tomorrow,
and we looked at it.
Q So what was discussed?
A Well, I explained to him the circumstances as
they appeared to be, what's likely to happen. We talked
specifically about the water that was going to be running
down that hill, and we talked about ways that perhaps the
water could be accommodated for effectively and whether the
construction could be done.
Q And what was the conclusion?
A That there were a couple alternatives and many
variations upon them and that it would not be an engineering
miracle to accommodate them.
Q And what were those solutions?
A One was to -- let's see here. At one time --
I think the original plan that was approved, Tim, called for
a pipe to take the water to the bottom of the hill through
an easement that never existed to a pond that never existed,
and my question was how hard would it be to simply take that
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
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pipe and continue it directly to the creek and use the
direct discharge method of dealing with storm water that has
been advocated by Mr. Secari throughout the entirety of the
Peninsula development and simply continue using that, and
Mark indicated that he felt there would be no problem with
that at all, nor would it be very expensive. Now, that's a
relative term.
Q Did he give you a quote?
A Never.
Q Did he give you a rough idea?
A No.
Q Did you ever ask for a quote?
A No, I didn't, because I didn't feel that it
would be proper for me to burden mark with time preparing a
quote since Mr. Snyder would mostly choose to use Mr. Gleim
or -- I mean, it wouldn't really be my job to implement it,
and at the time I had been advised to try to -- again, to
try to continue to pursue a dialogue with Mr. Snyder to
settle this matter without having to go to court. As a
matter of fact, I recall meeting with you and Mr. Hurley at
the golf course where we actually looked at these things,
and it was, you know, again, in a belief on my part that
this should not be a difficult matter to settle. I just was
trying to get some ideas of things that might work that
wouldn't be harmful to me.
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
EXHIBIT "C"
LAW OFFICES
WA,UMAN, SMITH, SMSSLRR & HALL, LLP
18T- FLOOR
200 NORTH THIRD STREET
P. 0. BOX 840
SPENCER G. NAUMAN, JR. COUNSEL
J. STEPHEN FEINOUR HARRISBURG
PENNSYLVANIA 17108-0840
, DAVID C. EATON
CRAIG J. STAUDENMAIER TELEPHONE JOHN C. SULLIVAN
BENJAMIN C. DUNLAP, JR. GUY P. BENEVENTANO
DENNIS E. BOYLE (717) 236-3010
DIRECT E-MAIL ADDRESS
L.RENEE LIEUX TELEFAX NSSHONSSH. COM
LUCINDA C.GLINN (717) 234-1925 WEBSITE ADDRESS
WWW. NSSH. COM
May 28, 2004
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12' Floor
P. O. Box 1146
Harrisburg PA 17108-1146
RE: SSGC, Inc. d/b/a Silver Spring Golf Course v. Sample Bridge Associates
No.: 03-5935 Equity; Cumberland County, PA
Our File No.: 12643-2
Dear Tim:
Please allow this letter to serve as a supplement to Plaintiff's Answers to Defendant's
Interrogatories. With respect to Interrogatory No. 4, Plaintiff adds the following witnesses to its
witness list: Mark Eshelman of Mark-Crete, Inc., William Cool:, Silver Spring Township Manager,
Kelly Kelch, Silver Spring Township Assistant Manager, and Bony R. Dawood, P.E., Silver Spring
Township Engineer.
With respect to Plaintiff's Answers to Defendant's Interrogatory No. 12, in addition to the
damages already provided, Plaintiff has received an estimate from Mark-Crete, Inc. in the amount
of $219,275.00 for construction of a pipe mechanism to accommodate the increased storm water
flow, including the anticipated cost of returning Plaintiff's property to a condition as close as
possible to its pre-development condition.
Plaintiff submits copies of tax/deed information for properties purchased in The Peninsula
Phase III, relating to Plaintiff's Answers to Defendant's Request for Production of Documents No.
4.
Should you have any questions, please do not hesitate to give me a call.
Sincerely yours,
DEB/par
Enclosures
G
Dennis E. Boyle
cc: Ted W. Ansel
EXHIBIT "D"
LAW OFFICES
NAIIMAN, .SMITH, .SHI96LH7i A HALL. LLP
ISTN FLOOR
200 NORTH THIRD STREET
SPENCER G. NAU MqN. JR. P. O. Box 840 '
PH OUR
...HARRISBURG, PENNSYLVANIA 17108-0840 COUNSEL
C
D DEE
CRAG J. STAUN R
CRAIG .
- DAVID C. EATON
BENJAMIN N C C.
. DUNLAP, P,JR. TELEPHONE JOHN C. SULLIVAN
DENNIS E. BOYLE
(ll)) 236-3010 GUY P. BENEVENTANO
DIRECT E-MAIL ADDRESS
L. RENEE LIEUx TELEFAX
NSSHONSSH. COM
LUCINDA C.GLINN
(717) 234-1925
WEBSITE ADDRESS
W W W. NSSH. CO,
June 7, 2004
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12th Floor
P. O. Box 1146
Harrisburg PA 17108-1146
RE: SSGC, Inc. d/b/a Silver Spring Golf Course v. Sample Bridge Associates
No.: 03-5935 Equity; Cumberland County, PA
Our File No.: 12643-2
Dear Mr. Nieman:
Enclosed herewith is a copy of the Mark-Crete estimate that I have received in the
above-referenced case. Should you have any questions, please do not hesitate to give me a
call.
Sincerely yours,
I)L14-
Dennis E. Boyle
DEB/jdh
Enclosure
vu,vnicuuv uo:uu IlAA Ill UU/ bU4J MARK L;1(!;'T INN Lgj U2
1J MARK CRETI
INCORPORATED
71 TEXACO ROAD
NECNANICSOUR0. PA 17050
(717) 687-8083
SILVER SPRING GOLF COURSE
136 SAMPLE BRIDGE ROAD
MECHANICSBURG,PA 17055
6/212004
SILVER SPRING GOLF COURSE
RIP RAP (24" DEEP
15'X20'=300 SF
FOREMAN 8 HRS. X
TRACKHOE 8 HRS. X
LABORER 8 HRS. X
TRUCK 8 HRS. X
STONE 45 TONS X
CLOTH 34 SY X
ENDWALL (TWIN 36" HOEP PIPE
FOREMAN 2 HRS. X
TRACKHOE 2 HRS. X
LABORER 2 HRS. X
END WALL 1800 FT X
TWIN 36" HDEP PIPES (NO BEDDING)
ENDWALL TO MANHOLE #1
FOREMAN 7 HRS. X
TRACKHOE 7 HRS. X
BACKHOE 7 HRS. X
LABORERS (2) 7 HRS. X
TRUCK 7 HRS. X
36" HDEP 70 FT X
PREM GASKETS 100 EA X
MANHOLE#1
$ 52.00 $ 416.00
$ 170.00 $ 1,360.00
$ 25.00 $ 200.00
$ 65.00 $ 520.00
$ 12.00 $ 540.00
$ 2.00 $ 68.00
TOTAL $ - $ 3,104.00
$ 52.00 $ 104.00
$ 170.00 $ 340.00
$ 25.00 $ 50.00
121% $ 2,178.00
TOTAL $ - $ 2,672.00
$ 52.00 $ 364.00
$ 170.00 $ 1,190.00
$ 75.00 $ 525.00
$ 50.00 $ 350.00
$ 65.00 $ 455.00
$ 27.00 $ 1,890.00
$ 2.00 $ 200.00
TOTAL $ - $ 4,974.00
FOREMAN 4 HRS. X $ 52.00 $ 208.00
TRACKHOE 4 HRS. X $ 170.00 $ 680.00
U0i U4/LUU4 Ub:UO VAA /I/ UU/ 0043 MARK URETE INN
LABORER 4 HRS. X $ 25.00 $ 100.00
MANHOLE 1 EA, X $ 2,849.55 $ 2,849.55
TOTAL $ 3837.55
TWIN 36' HDEP PIPE (NO BEDDING)
MANHOLE #1 TO MANHOLE #2
FOREMAN 112 HRS. X $ 52.00 $ 5
824
00
TRACKHOE 112 HRS. X $ 170.00 $ ,
.
19
040
00
BACKHOE 112 HRS. X $ 75.00 $ ,
.
8
400
00
LABORERS (2) 112 HRS. X $ 50.00 $ ,
.
5
600.00
TRUCK
" 112 HRS. X $ 65.00 $ ,
7
280
00
36
HDEP 1120 FT X $ 27.00 $ ,
.
30
240.00
PREM. GASKETS 100 EA X $ 52.00 $ ,
5,200.00
TOTAL $ - $ 81,564.00
MANHOLE #2
FOREMAN 4 HRS. X $ 52.00 $ 208
00
TRACKHOE 4 HRS. X $ 170.00 $ .
680
00
LABORER 4 HRS. X $ 25.00 $ .
100
00
MANHOLE#2 1 EA. X $2,849.55 $ .
2,849.55
TOTAL $ $ 3,837.55
TWIN 36' HDEP PIPE (NO BEDDING)
MANHOLE #2 TO MANHOLE #3
FOREMAN 45 HRS. X $ 52.00 $ 2
340
00
TRACKHOE 45 HRS. X $ 170.00 $ ,
,
7
650,00
BACKHOE 45 HRS. X $ 75.00 $ ,
3
375
00
LABORERS (2) 45 HRS. X $ 50.00 $ ,
.
2
250
00
TRUCK
" 45 HRS. X $ 65.00 $ ,
.
2
925
00
36
HDEP 450 FT X $ 27.00 $ ,
.
12
150
00
PREM. GASKETS 100 EA X $ 22.00 $ ,
.
2,200.00
TOTAL $ $ 32,890.00
MANHOLE #3
FOREMAN 4 HRS. X $ 52.00 $ 208
00
TRACKHOE 4 HRS. X $ 170.00 $ .
680
00
LABORER 4 HRS. X $ 25.00 $ .
100
00
MANHOLE#3 1 EA X $2, 849.55 $ .
2,849.55
TOTAL $ 3,837.55
36" HDEP (NO BEDDING)
MANHOLE #3 TO MANHOLE #4
FOREMAN 35 HRS. X $ 52.00 $ 1
820
00
TRACKHOE 35 HRS. X $ 170.00 $ ,
.
5
950
00
BACKHOE 35 HRS. X $ 75.00 $ ,
.
2
625
00
DOZER 35 HRS. X $ 150.00 $ ,
,
5
250
00
LABORERS (2) 35 HRS. X $ 50.00 $ ,
.
1
750
00
TRUCK
" 35 HRS. X $ 65.00 $ ,
,
2
275
00
36
HDEP 175 FT X $ 27.00 $ ,
.
4,725.00
tpj 03
w MARK CRIM INCORPORATED • 71 TEXACO nowo, NECK NICaeuna, PA 17035 - (717) 897-8055
Uui U4/ZUU4 U6:UU NM 717 U87 8U43 MARK CRETE J,NC
PREM. GASKETS 8 EA X $ 100.00 $ 800.00
TOTAL $ $ 25,195.00
MANHOLE #4
FOREMAN 4 HRS. X $ 52.00 $ 208.00
TRACKHOE 4 HRS. X $ 170.00 $ 680.00
LABORER 4 HRS. X $ 25.00 $ 100.00
MANHOLE #4 1 EA. X $ 986.15 $ 986.15
TOTAL $ - $ 1,974.15
TIE DOWNS FOR PIPE TO COUNTER ACT THE HYDRASTATIC PRESSURE
FOREMAN 120 HRS. X $ 52.00 $ 6,240.00
BACKHOE 120 HRS. X $ 75.00 $ 9,000.00
LABORERS (2) 120 HRS. X $ 50.00 $ 6,000.00
CONCRETE 97 CY X $ 85.00 $ 8,245.00
ANCHORS 328 RA X $ 7.00 $ 2,296.00
STRAPS 3280 LF X $ 3.00 $ 9,840.00
CONCRETE 2 X 2 X 2 TOTAL $ 41,621.00
FAIRWAY & GOLF COUR SE RESTORATION
FOREMAN 40 HRS. X $ 52.00 $ 2,080.00
GRADER 40 HRS. X $ 125.00 $ 5,000.00
LABORERS (2) 40 HRS. X $ 50.00 $ 2,000.00
SMALL TRUCK 40 HRS. X $ 50.00 $ 2,000.00
TOTAL $ $ 11,080.00
SEEDING & CLEAN UP
FOREMAN 40 HRS. X $ 52.00 $ 2,080.00
TRACTOR 40 HRS. X $ 75.00 $ 3,000.00
LABORERS (2) 40 HRS. X $ 50.00 $ 2,000.00
SEED 1 LS X $1 ,000.00 $ 1,000.00
STRAW & MULCH 1 LS X $ 2 ,000.00 $ 2,000.00
TOTAL $ - $ 10,080.00
MOBILIZATION
FOREMAN 28 HRS. X $ 52.00 $ 1,456.00
LOWBOY 28 HRS. X $ 80.00 $ 2,240.00
TOTAL $ - $ 3,696.00
TOTAL $ 230,382.80
19J04
MARK CRRTK 1NCORPORAT® • 71 TEXACO ROAD, MECHANIC/RURO, ?A 17035 • (717) 697-8093
CERTIFICATE OF SERVICE
I hereby certify that on this _ day of July, 2004, a true and correct copy of the
foregoing document was served by means of United States mail, first class, postage prepaid,
upon the following:
Dennis E. Boyle, Esquire
Lucinda C. Glinn, Esquire
Nauman, Smith, Shissler & Hall, LLP
200 N. 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, Pennsylvania 17108-0840
N
L'
c.
T.
n-
r-' f=
r
- 1
a:
7
?
CA
co
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE, Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v. /
SAMPLE BRIDGE ASSOCIATES, N0. 03-5935 EQUITY V
Defendant ------------------
------------------------ COURT
SSGC, INC. d/b/a SILVER SPRING, IN THE OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GOLF COURSE, Plaintiff
v.
SAMPLE BRIDGE ASSOCIATES, ant N0. 02-692 EQUITY
Defend
ORDER OF COURT
AND NOW, this 17th day of June, 2004, upon
consideration of Defendant Sample Bridge Associates' Motion
Pursuant to Pa.R.Civ.P.4003.5(a)(2) To Depose Expert Witness, and
following a discovery conference held in the chambers of the
undersigned judge in which Plaintiff was represented by Lucinda C.
Glinn, Esquire, and Defendant was represented by Timothy J. Nieman,
Esquire, and it appearing that this motion for discovery was filed
after a discovery deadline imposed by the Court pursuant to an
agreement of counsel, and that Plaintiff is not willing to waive
its rights to adherence to the discovery deadline previously
imposed, Defendant's motion is denied.
By the Court,
vii'v
ZC :I Rd 9-11pif U3Z
AWILONIOHiCad wHl M
Lucinda C. Glinn, Esquire
18th Floor
200 North Third Street
P.O. Box 840
Harrisburg, PA 17108-0840
For the Plaintiff
Timothy J. Nieman, Esquire
Twelfth Floor
One South Market Square
P.O. Box 114PA 17108-1146
Harrisburg,
For the Defendant
0?8 0Y
pcb
SSGC, INC. d/b/a/
SILVER SPRING GOLF
COURSE,
Plaintiff
V.
SAMPLE BRIDGE
ASSOCIATES,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 03-5935 EQUITY TERM
ORDER OF COURT
AND NOW, this IP day of July, 2004, upon consideration of Defendant's
Motion Pursuant To Pa. R. Civ. P. 4019 To Preclude Certain Evidence at Trial for Failure
To comply with Discovery Order, a discovery conference/hearing is scheduled for
Thursday, August 12, 2004, at 2:45 p. m.
Dennis E. Boyle, Esq.
Lucinda C. Glinn, Esq.
200 N. Third Street
18`h Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Attorneys for Plaintiff
Jack F. Hurley, Jr., Esq.
Timothy J. Nieman, Esq.
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Attorneys for Defendant
:rc
BY THE COURT,
k in;IiG u?Ni,1O
'•,,O--Cl?ll-J
SSGC, INC. d/b/a/
SILVER SPRING GOLF
COURSE,
Plaintiff
V.
SAMPLE BRIDGE
ASSOCIATES,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 03-5935 EQUITY TERM
IN RE: DEFENDANT'S MOTION PURSUANT TO
PA. R. CIV. P. 4019 TO PRECLUDE CERTAIN
EVIDENCE AT TRIAL AND FOR FAILURE
TO COMPLY WITH DISCOVERY ORDER
ORDER OF COURT
AND NOW, this 3`d day of August, 2004, upon consideration of the attached letter
from Timothy J. Nieman, Esq., attorney for Defendant, the discovery conference/hearing
previously scheduled for August 12, 2004, is rescheduled to Wednesday, September 29,
2004, at 3:00 p.m..
BY THE COURT,
w,-,, 0
J Wesley Oler"Jr., J.
,,Dennis E. Boyle, Esq.
Lucinda C. Glinn, Esq. ,
200 N. Third Street 0?1 t e?
18d' Floor 7
P.O. Box 840
Harrisburg, PA 17108-0840
Attorneys for Plaintiff Og-0 L/
n
Rl?`ni t"`?1? ill
,/tack F. Hurley, Jr., Esq.
Timothy J. Nieman, Esq.
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Attorneys for Defendant
:rc
t
RHOADS
& SINON LLP
Timothy J. Nieman
ph (717) 231-6614
fx (717) 231-6626
tnieman@rhoads-sinon.com
FILENo' 2965/63
August 2, 2004
Re: SSGC, Inc. d/b/a Silver Spring Golf Course v. Sample Bridge Associates,
No. 03-5935
The Honorable J. Wesley Oler, Jr.
Cumberland County Court
One Courthouse Square
Carlisle, PA 17013-3387
Dear Judge Oler:
Counsel for Plaintiff and Defendant are unavailable for the discovery conference
scheduled for August 12, 2004 at 2:45 p.m. in the above-referenced matter. I have been
informed by your secretary that you are available on September 29, 2004 at 3:00 p.m. to conduct
the discovery conference. Accordingly, the parties respectfully request that the discovery
conference be rescheduled for September 29, 2004 at 3:00 p.m.
Very truly yours,
RHOADS 6i SINON LLP
By:
Timothy J. Nieman
cc: Lucinda Glinn, Esquire
q?? a
527978.1
Rhoads 6r Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146
Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3rd Street, 180' Floor
P. O. Box 840
Harrisburg PA 17108-0840
Phone: (717) 236-3010
Fax: (717) 234-1925 Counsel For: SSGC, Inc.
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
NO. 03-5935 EQUITY
PLAINTIFF SSGC'S RESPONSE TO DEFENDANT'S
MOTION TO PRECLUDE CERTAIN EVIDENCE AT TRIAL
Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, ("SSGC"), by and through its
counsel, Nauman, Smith, Shissler & Hall, LLP, and hereby responds to Defendant Sample
Bridge Associates' Motion to Preclude Certain Evidence at Trial as follows:
Admitted in part, denied in part as stated. It is admitted that SSGC initiated the
action at law for damages, violation of the Storm Water Management Act, ("SWMA"), 32 P.S.
§§680.1 et seq., and continuous common law trespass and private nuisance. Plaintiff's complaint
at law sought recovery for damages suffered from Defendant Sample Bridge Associates' repeated
trespass, and accompanying flood/water damage from stormwater drainage due to improper
stormwater management.
2. Admitted in part, denied in part. It is admitted that SSGC initiated an action at
equity involving many of the same claims; the Complaint in Equity also included a count for
injunctive relief to enjoin the continued trespass upon Plaintiff's property. By way of further
answer, SSGC has amended its Complaint in Equity to add averments supporting a claim for
punitive damages. It is admitted that the actions have been consolidated into one action at
equity. The Court's Order is a document that speaks for itself.
3. Admitted. By way of further answer, upon the parties reaching an agreement to
resolve their respective motions to compel without necessitating, Court intervention, the Court
established the discovery deadline of April 30, 2004, by Order dated April 6, 2004.
4. Admitted in part, denied as stated in part. The April 6, 2004 Order resolved
SSGC's Motion to Compel expert interrogatories and an expert report that Sample Bridge
Associates had failed to provide in a timely fashion. By way of further answer, in order to
obviate the necessity for this Court's involvement in every discovery dispute, the parties
mutually agreed to a disposition of their Motions to Compel as moot upon having received a date
certain by which Defendant would produce an expert report in lieu of responding to the expert
interrogatories served several months previously. Moreover, the April 6, 2004 Order is a
document that speaks for itself, and any characterization thereof is specifically denied.
5. Admitted. It is admitted that Defendant sought to compel responses to
interrogatory No. 12 and Request for Production No. 7, and that the discovery requests were
served on July 9, 2003. By way of further answer, Plaintiff served timely responses, on August
8, 2003 that the extent of the damages were unknown at that time, that such damages were
difficult to quantify, particularly as the injury was ongoing, and that "Plaintiff reserves the right
to supplement his answer as information becomes available."' See Plaintiff's Response to
Interrogatory No. 12, attached hereto as Exhibit `A,' and Response to Request for Production No.
7, attached hereto as Exhibit `B.' Plaintiff has complied with the Rules of Civil Procedure
2
regarding discovery throughout this litigation, and objects to any implication to the contrary.
6. Denied as stated. Plaintiff SSGC agreed to provide, and was ordered to provide in
accordance with the Stipulation, all the information regarding damages that was available to it,
and in its possession. Plaintiff SSGC provided all the documents it had in its possession in
response to the interrogatories, and supplemented that information as soon as additional
information became available as it had informed Defendant it would do in its timely responses to
discovery. Plaintiff provided Sample Bridge Associates with an approximation of additional
maintenance costs incurred as a result of the continued trespass of storm water that could not be
accommodated by its facilities once the information became available, and thus supplemented its
discovery responses.
Defendant objects to the production of an estimate of remediation costs as untimely;
however, SSGC was not in a position to provide information on remediation until Defendant had
completed its work on the project, particularly on the rock-lined hillside leading to the ladies' tee
at hole number 4. Defendant had represented to SSGC and to Silver Spring Township that when
it completed its work, the damage to SSGC's property would be eliminated or greatly reduced.
Unfortunately, Defendant delayed completion of the project, including the rock-lined hillside
leading to the ladies' tee at hole No. 4, until after the discovery deadline had passed. After being
informed that the project was completed, SSGC had the project: evaluated and found that the
damage to SSGC's property had not been remediated in any way. See Photographs attached
hereto as Exhibit "C". SSGC forwarded the estimate for remediation costs to Defendant within
two weeks of what it had been informed was the project's completion.
In this case, SSGC believes that it complied with the discovery deadline imposed by the
Court by timely providing all information in its possession to Defendant and by supplementing
its responses as information became available. A discovery deadline does not negate a party's
duty to supplement discovery once information responsive to timely served discovery becomes
available. In addition, the April 6, 2004 Order and the Stipulation are documents that speak for
themselves, and any characterization thereof is specifically denied.
Moreover, any delay in providing information to the Defendant is attributable solely to
the Defendant which misrepresented to functionality of its project and which delayed completion
of the project until after the discovery deadline had passed.
7. Denied as stated. Plaintiff made all efforts to comply with the discovery deadline,
and issued all discovery within that agreed upon timeframe. Plaintiff could not control the fact
that the problem was ongoing and that conditions solely within Defendant's control prevented
SSGC from having a contractor prepare an estimate regarding the cost of implementing measures
to accommodate the increased water flow and concentration, as well as to repair the landscaping
any earlier. As noted above, Defendant's work on the project was ongoing, and the estimate was
provided to Defendant within two weeks of the project's completion by the Defendant.
Defendant's allegation that Mr. Ansel testified that "SSGC became aware of the alleged storm
water issue" thirteen years previously is specifically denied. By way of further answer, Mr.
Ansel testified that he was informed by the developer's representatives that the storm water
issues relative to the ladies' tee at No. 4 would be addressed latter when they got to Phase III. See
Ted Ansel Deposition Transcript, pp. 12-13, attached to Defendant's Motion as Exhibit `B.' As
Defendant knows, work on The Peninsula has been ongoing, causing increasingly severe damage
4
to SSGC's property. The May 28, 2004 letter and the following estimate were prepared in
response to work on the project being completed in mid-May 2004. Moreover, the May 28,
2004 letter is a document that speaks for itself, and any characterization thereof is specifically
denied.
8. Admitted in part, denied in part. Moreover, Mr. Ansel's deposition transcript is a
document that speaks for itself, and any characterization thereof is specifically denied. It is
admitted that Mr. Ansel testified that he had not asked for a quote from Mark Eshelman of Mark-
Crete, Inc., and at that time, he had not asked for one. By way of further answer, Plaintiff did not
request for an estimate to be prepared until after it had been informed that the construction had
been completed in the area of the ladies' tee at No. 4, such that no further remedial measures to
reduce the storm water flow and bring the development into compliance with the SWMA would
be taken. It is specifically denied that Defendant can claim unfair surprise at this time, since this
matter has not yet been listed for trial, and Plaintiff has offered to waive the discovery deadline in
order to depose Mr. Eshelman because it was not able to provide the discovery to Sample Bridge
Associates within the prescribed timeframe for discovery. See Letter of Lucinda Glinn, Esquire
to Timothy Nieman, Esquire dated July 12, 2004, attached hereto as Exhibit "D."
To date, Defendant has not contacted Plaintiff regarding a deposition of Mr. Eshelman.
Therefore, it is believed and thus averred that Sample Bridge Associates would prefer to exclude
the Estimate from trial due to its potentially deleterious effect upon Defendant's case rather than
due to any unfair surprise or inability to further explore its contents with its preparer.
9. Admitted in part denied as stated. The fact that the estimate of repairing the
damage and accommodating the increased storm water flow prepared by Mr. Eshelman,
("Estimate"), was forwarded to Defendant's counsel on June 7, 2004, the day after Plaintiff's
counsel received it. The June 7, 2004 letter is a document that speaks for itself, and any
characterization thereof is specifically denied.
10. Denied. It is specifically denied that the Estimate contains no information
concerning what is expected to be accomplished. By way of further answer, as stated in the letter
of Attorney Boyle to Defendant, the Estimate is "for construction of a pipe mechanism to
accommodate the increased storm water flow, including the anticipated cost of returning
Plaintiff's property to a condition as close as possible to its pre-development condition." See
Letter dated May 28, 2004, attached to Defendant's Motion at Exhibit C. In addition,
Defendant's counsel stated in a letter dated June 2, 2004, (attached hereto as Exhibit "E"), that
It is my understanding that you did not provide the information contained in your
May 28, 2004 letter prior to the expiration of the April 30, 2004 discovery
deadline because construction of the storm water management system was
incomplete. It is also my understanding that you have not received a copy of the
Mark-Crete quote referenced in your letter and that you will forward the quote to
me as soon as you receive it. It is also my understanding that the Mark-Crete
quote is to install a system to pipe the water across the golf course to the creek.
Finally indicated that you would continue to update your discovery responses to
the extent there is any additional evidence of storm water runoff from Phase III of
the Peninsula to the golf course.
See June 2, 2004 Letter of Tim Nieman, Esquire at Exhibit E. Moreover, the Estimate is a
document that speaks for itself, and any characterization thereof' is specifically denied.
It. Denied. It is specifically denied that Sample Bridge Associates was unable to
depose a representative of Mark-Crete, Inc., or follow-up with written discovery concerning the
issues contained therein. To the contrary, Plaintiff represented to Defendant that it would not
object to a request to depose Mr. Eshelman regarding the contents of the Estimate for
clarification purposes. See Exhibit D attached. Plaintiff informed Sample Bridge Associates that
it had only come into possession of the Estimate after the discovery deadline had passed, and that
it had provided it in accordance with the Rules of Civil Procedure, Rule 4007.4, regarding the
duty to supplement responses to discovery. Plaintiff had a duty under the Rules to amend or
supplement responses to discovery when it came into possession of any new material that was
not included in previous responses. See Leahy v. McClain, 732 A.2d 619 (Pa. Super. 1999)
(precluding photographs from introduction at trial that were not provided in accordance with a
party's duty to supplement). Were Plaintiff to have failed to produce the Estimate until the eve
of trial, after the matter had been listed, and without affording Defendant any opportunity to
investigate or discover information in order to impeach or rebut the contents of the Estimate, then
Defendant may have had a colorable argument for precluding this evidence. Id. Since Defendant
has been provided ample opportunity, and time to depose Mr. Eshelman, or a representative from
Mark-Crete with relevant knowledge likely to lead to the discovery of admissible evidence,
Defendant cannot now claim that it "was unable" to look further into the Estimate as grounds for
its preclusion.
12. Admitted in part, denied in part. It is admitted that on June 17, 2004, the
Honorable J. Wesley Oler denied Defendant's Motion for Leave to Depose an Expert Witness
under Rule 4003.5. It was argued at the Discovery Conference that the Rule requires good cause
to depose an "Expert Witness" as opposed to a fact witness, and the Judge may have been
inclined to allow the deposition to go forward so that Plaintiff's Expert could be deposed strictly
as a fact witness, had the request to depose Plaintiff's Expert been timely served. Judge Oler's
reasons for denying Defendant's Motion for Leave to Depose Expert Witness are not specifically
7
enumerated in the Order, attached hereto as Exhibit "F." Although it is likely that during the
discovery conference Judge Oler stated that "further depositions could not be scheduled without
SSGC's approval," it is specifically denied that SSGC has refused to allow additional
depositions. To the contrary, as stated above, and as further outlined in Letter of Attorney Glinn
attached hereto as Exhibit D, SSGC has stated that it would permit additional depositions
regarding the Estimate due to the fact that it was unable to provide the Estimate before the
discovery deadline, thus precluding a timely request for discovery regarding its contents.
13. Denied. It is specifically denied that Defendant has been prejudiced in any
fashion by the information concerning the Estimate. When the only claim of prejudice is the
party's inability to prepare for the cross-examination of a witness, although possibly legitimate,
cannot prevail when the party may cure the prejudice by either requesting a continuance or an
opportunity to depose the witness. See, e.g., Curran v. Stradley; Ronon, Stevens & Young, 361
Pa. Super. 17, 31, 521 A.2d 451, 457 (1987) (reasoning that witness testimony would not be
precluded on grounds of prejudice due to inability to prepare). In Curran, the Superior Court
found compelling the fact that the party had two weeks in advance of trial to investigate and did
nothing; such inaction "mitigates any real prejudice caused by [the party's] untimely disclosure."
Id. Defendant Sample Bridge Associates likewise failed to take advantage of the time and
offered opportunity available to it to investigate the material it seeks to preclude. Moreover, as
the parties are not "on the eve of trial," and the case has not yet been listed, any prejudice based
upon missed opportunity or inability lacks merit. It is further denied that Sample Bridge
Associates is unable to depose Mr. Eshelman. As for the other witnesses listed in the May 28,
2004 letter, these witnesses were likewise identified by Defendant in correspondence dated April
30, 2004 as Defendant reserved the right to call representatives of Silver Spring Township. See
Letter of Timothy Nieman, Esquire, dated April 30, 2004, attached hereto as Exhibit "G." All of
the witnesses to which Plaintiff's May 28, 2004 refers are likewise Township representatives,
with the exception of Mr. Eshelman, whose identity as a contractor who had reviewed the site
had been revealed to Defendant at Mr. Ansel's deposition on April 17, 2004. Moreover, the
necessity of naming Mr. Eshelman a witness to present the Estimate was not known prior to the
discovery deadline, and can be cured by permitting his deposition as SSGC has offered.
14. Denied. Pennsylvania Rule of Civil Procedure No. 4019 speaks for itself, and any
characterization thereof is strictly denied. By way of further answer, Plaintiff did not disobey a
discovery order of court, in that it never served or attempted to request discovery past the
deadline. Rather, SSGC produced material requested in discovery to Defendant as soon as
practicable in accordance with its obligations under the Rules.
15. Denied. It is specifically denied that there are grounds to preclude the Estimate or
its preparer from admission into evidence at trial. This is not an occasion where a party has
wrongfully withheld evidence of which it had possession when it was originally requested as was
the case with Defendant's failure to officially name an expert, and provide an expert report in
response to interrogatories. This Honorable Court needs to first assess whether there is any
prejudice caused by introduction of the evidence.
In determining whether to preclude evidence, a court may consider the prejudice or
surprise caused, the ability of the party to cure the prejudice, and bad faith or willfulness in
failing to comply with the Court Order. Cf. Sindler v. Goldman, 309 Pa. Super. 7, 454 A.2d 1054
(1982) (pertaining to exclusion of expert witness). As an initial matter, Plaintiff denies that
supplementing discovery as required under the rules, and as had been agreed upon in prior
responses, constitutes a violation of the discovery deadline, or the Court's Order regarding same.
After considering these factors, the Court determines whether the extreme sanction of precluding
relevant evidence is appropriate. Plaintiff SSGC submits that no prejudice is here shown, and
that having been afforded the opportunity to depose Mr. Eshelman, and request other discovery
related to the Estimate, and failing to do so, indicates that Defendant is not interested in curing
the prejudice, but rather precluding relevant evidence from trial merely due to the damage it may
cause Defendant's case.
WHEREFORE, Plaintiff, SSGC, Inc. d/b/a Silver Spring Golf Course, respectfully
requests that the Court deny Defendant's Motion to Preclude Certain Evidence at Trial because
Plaintiff has agreed to not object to deposition regarding the Estimate, and has provided all the
materials it seeks to introduce at trial in compliance with the Rules of Civil Procedure.
Respectfully submitted by:
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3`d Street, 18th Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 234-1925
Counsel For: SSGC, Inc. d/b/a Silver Spring Golf
Dated: August 3, 2004 Course
10
iv :£ O t- n lo, Holz
12. State with particularity any and all damages that you are claiming in the above-
captioned matter, explain how such damages were calculated and identify all documents related
thereto.
ANSWER:
Unknown at this time. the nature of the injury is difficult to quantify through monetary
damages. Plaintiff reserves the right to supplement his answer as information becomes available.
13
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Answers to Defendant's Interrogatories was served by hand delivery, upon those person(s) listed
below:
Timothy J. Nieman, Esquire
Rhoads & Sinon. LLP
One S. Market Square, 12th Floor
P. O. Box 1146
Harrisburg PA 17108-1146
_7
Penny A. Rogers. Paralegal
Dated: August 8, 2003
7. Any and all documents relating to any and all damages that you are claiming in the
above-captioned matter.
ANSWER:
Unknown at this time. Plaintiff reserves the right to supplement this response as information
becomes available. See Plaintiffs Answer to Defendant's Interrogatory 12.
8. Any and all documents relating to each and every instance that limestone ballast.
ricks, trees, branches, cans, bottles and other debris has washed onto your property from the
Defendant's property.
ANSWER:
Plaintiff objects to Request for Production 8 as being overly broad and unduly burdensome.
Without waiving the foregoing objection, by way of further answer, see the attached photographs.
See also Plaintiffs Answer to Defendant's Interrogatory 7.
5
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Plaintiff s Answerto Defendant's Request for Production of Documents was served by hand delivery
upon those person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12th Floor
P. O. Box 1146
Harrisburg PA 17108-1146
7' ,
Penny A. Rogers, Paralegal
Dated: August 8. 2003
LAW OFFICES
NAi7M_&,V, 3MYa?, saass;LoR & ALL, MLP
18TH FLOOR
200 NORTH THIRD STREET
P. 0. BOX 840 COUNSEL
SPENCER G. NAUMAN, JR.
HARRISBURG, PENNSYLVANIA 1710B-0a40 EATON
DAVID C.
J. STEPHEN FEINOUR JOHN C. SULLIVAN
CRAIG J. STAUDENMAIER TELEPHONE GUY P. BENEVENTANO
BENJAMIN C. DUNLAP, JR.
DENNIS E. BOYLE (717) 236-3010 DIRECT E-MAIL ADDRESS
TELEFA% NSSH®NSSH. COM
L. RENEE LIEU- WEBSITE ADDRESS
LUCINDA C. GLINN (717) 234-1925 WWW. NSSH. COM
July 12, 2004
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12`h Floor
P. O. Box 1146
Harrisburg PA 17108-1146
RE: SSGC, Inc. d/b/a Silver Spring Golf Course v. Sample Bridge Associates
No.: 03-5935 Equity; Cumberland County, l?A
Motion to Preclude Evidence at Trial
Our File No.: 12643-2
Dear Tim,
We have just received your Motion to Preclude the estimate prepared by Mark
Eschelman of Mark-Crete, Inc., quantifying to the extent practicable, the cost of repairing
and redirecting the storm water to return the golf course to its pre-development condition,
("Estimate"). Based upon some of the allegations in your Motion, it appears that there may
have been a misunderstanding on your part as to what transpired during the discovery
conference in Judge Oler's Chambers on June 17, 2004. Contrary to what you indicate in
your motion, at no time did either Attorney Boyle or myself refuse to allow the deposition of
Mark Eschelman. To date, SSGC has received no request to take Mr. Eschelman's deposition,
nor has it indicated it would object to a notice or subpoena issued for that purpose. In fact,
SSGC would not oppose Mr. Eschelman's deposition after the discovery deadline given that
his estimate was only obtained subsequent to that deadline, thus precluding a timely
discovery request.
During the discovery conference, although Sample. Bridge Associates' request for
leave to depose our expert was the only matter before the judge, you also requested that
judge Oler preclude the Estimate because it was provided to Sample Bridge Associates after
April 301h, our agreed upon deadline for discovery. The discovery deadline could not have
the effect of eliminating our obligations to comply with timely discovery requests, and
Page 2
July 12, 2004
SSGC v. SBA - Motion to Preclude Evidence at Trial
supplement responses as necessary under the Rules of Civil Procedure. As I had stated
during the conference, SSGC was merely fulfilling its duty to supplement discovery under
Rule 4007.4. The fact that SSGC did not come into possession of that material until after
April 30' does not constitute a violation or waiver of the discovery deadline. Once the
Township advised SSGC that work on Phase III had been completed, SSGC requested Mr.
Eschelman to estimate the cost of remedying the storm water damage and accommodating
the continued excessive discharge. To request the Estimate prior to the completion of
construction would have been premature; an accurate reflection of the costs to remedy the
situation could not have been obtained earlier. As it has throughout this litigation, SSGC
provided information responsive to discovery requests as soon as it became available in
accordance with the Rules.
As you have alleged prejudice by virtue of claimed inability to depose Mr. Eschelman
regarding the Estimate, SSGC would be willing to entertain an untimely discovery request
for that limited purpose. In light of SSGC's willingness to permit the deposition of Mark
Eschelman to be taken after the deadline, it would benefit both parties for Sample Bridge
Associates to withdraw its Motion rather than incur additional costs and require the Court's
further involvement in discovery disputes which could be amicably addressed. In this way,
your client will not be prejudiced by an inability to discover facts relative to the Estimate
that SSGC had only recently obtained. As to the other witnesses that you have sought to
preclude from testifying at trial, including William Cook, Kelly Kelch, and Boney Dawood,
of the Silver Spring Township, these witnesses are also listed for Sample Bridge Associates.
As they are Sample Bridge Associates' witnesses, it would not make sense to preclude them
from trial on the basis of prejudice. Moreover, SSGC has not refused Defendant's request to
depose any of those witnesses.
Kindly advise as to whether Sample Bridge Associates plans to withdraw the Motion
to Preclude Certain Evidence based upon SSGC's agreement to not oppose a request to
depose Mr. Eschelman as untimely. I look forward to hearing from you.
Sincerely,
J(2
Lucinda C. G1inn-
LCG/jdh
Attachment
Timothy J. Nieman
ph (717) 231-6614
fx (717) 231-6626
tnieman@rhoads-sinon. com
p1i F No. 2965/63
June 2, 2004
Re: SStiL Inc• 01214 OILY i No. 03-5935
Dennis E. Boyle, Esquire
Nauman, Smith, Shissler & Hall LLP
200 N. 3rd Street, 18th Floor
P.O. Box °40
Harrisburg, PA 17108-0840
Dear Dennis:
I am writing to confirm our telephone conversation today. It is my understanding that
you did not provide the information contained in your May 28, 2004 letter prior to the expiration
of the April 30, 2004 discovery deadline because construction of the storm water management
system was incomplete. It is also my understanding that you have not received a copy of the
Mark-Crete quote referenced in your letter and that you will forward the quote to me as soon as
you receive it. It is also my understanding that the Mark-Crete quote is to install a system to pipe
the water across the golf course to the creek. Finally, you indicated that you would continue to
update your discovery responses to the extent there is any additional evidence of storm water
runoff from Phase III of the Peninsula to the golf course. This would include pictures, notes, etc.
Please feel free to contact me if you have any questions or if your recollection of our
conversation differs from that set forth above.
Very truly yours,
RHOADS &7SIINO-Nr LLP
By:
Timothy J. Nieman
517511.1 LLP e%ttorneys at Law • Twelfth Floot • One South Market Square • P.O. Box 1146
Rhoads rls Sr b SiSinon PA 17108-ll46 ph 1717) 333-5731 • fx (717) 232-1459 • www.rhoads-sinon.com
Ha
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
SAMPLE BRIDGE ASSOCIATES,
Defendant NO. 03-5935 EQUITY
------------------------------------------------------
SSGC, INC. d/b/a SILVER SPRING, IN THE COURT OF COMMON PLEAS OF
GOLF COURSE, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant NO. 02-692 EQUITY
ORDER OF COURT
AND NOW, this 17th day of June, 2004, upon
consideration of Defendant Sample Bridge Associates' Motion
Pursuant to Pa.R.Civ.P.4003.5(a)(2) To Depose Expert Witness, and
following a discovery conference held in the chambers of the
undersigned judge in which Plaintiff was represented by Lucinda C.
Glinn, Esquire, and Defendant was represented by Timothy J. Nieman,
Esquire, and it appearing that this motion for discovery was filed
after a discovery deadline imposed by the Court pursuant to an
agreement of counsel, and that Plaintiff is not willing to waive
its rights to adherence to the discovery deadline previously
imposed, Defendant's motion is denied.
By the Court,
sle7, Jr.,
Lucinda C. Glinn, Esquire
18th Floor
200 North Third Street
P.O. Box 840
Harrisburg, PA 17108-0840
For the Plaintiff
Timothy J. Nieman, Esquire
Twelfth Floor
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
For the Defendant
pcb
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In ; e$fiSP'BSSFB 3rur ail iFs ta-gtc- to nv hand
w 'd 1@'Vj SCE: 4 ?t ki 3?i+1 tY C'w Y.l ie DR.
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' ? TimothY,•Y: Niemap..
I AL ????? `j11 aHlq ph.(7175 i3;-s61a, .
' an?[ho}ds-s?non.ooin
SINONIL
• ?? • • ? • ? ? I• Fasra2965/63
April 30, 2004
Re: SSGC Inc d/b/& Cilyer Spa Golf Course v. SanMkjk dse AS -dM
VIA FACST",r.. ? e"''- pFGULAR MAlI.
Dennis E. Boyle, Esquire
Nauman, Smith, Sbisslar & Nall LLP
200 N- 3rd Street, 18th Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Dear Dennis:
1 am writing to update Defendant's Answers to Plaintiff's Interrogatories. First, with
respect to luterrogatory No. 6, as outlined in my December 10, 2003 loner to you, I still have a
significant number of documents - many of which are oversized drawings and maps - available
for your review and/or copying. To date, you have not made arrangements to review or copy
these documents. Please let me lmow if you want to review these documents.
With respect to interrogatory No. 7, while Defendant has not decided who it will can at
trial, it reserves the right to call Joe Snyder, Ron Secary, John Grim, representatives of Silver
Spring Township and all witnesses identified on Plaintiffs witness list. I will let you know if
Defendant intends on calling any other witnesses.
With respect to Interrogatory No- 8, while Defendant has not decided what documents it
will introduce at trial, it reserves the right to introduce any and all documents produced in
discovery, including those documents referenced in my December 10, 2003 letter to you that
remain available for your review and/or copying.
We will update our responses to Interrogatories Nos. 9 through 16 as required by the
Court's April 6, 2004 Order.
Thank you for your cooperation and let me know if you have any questions or comments.
very truly yours,
RHOADS lint SaNON LLP
By:
Timothy J- Nieman
$izmo.i
Rh ads burs PA LP - A114nrys 21 717)•233.5731' Jxl(7107) 23Z 1i 9 8. www.rhoads s uou COM
hard 17108- a pit
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Response to Defendant's Motion to Preclude Evidence was served by United States First Class
Mail, postage pre-paid, upon those person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12'h Floor
P. O. Box 1146
Harrisburg PA 17108-1146
D. HagstfoVjV Assistant to
E. Boyle, Esquire
Dated: August ?_, 2004
11
IiZ :C t d t]- r,IIV ? J1
3441 30
4e '.:;w{i3 Id
SSGC, INC., d/b/a IN THE COURT OF COMMON PLEAS OF
SILVER SPRING GOLF CUMBERLAND COUNTY, PENNSYLVANIA
COURSE,
Plaintiff CIVIL ACTION - EQUITY
v
SAMPLE BRIDGE ASSOCIATES,
Defendant 03-5935 EQUITY TERM
SSGC, INC., d/b/a IN THE COURT OF COMMON PLEAS OF
SILVER SPRING GOLF CUMBERLAND COUNTY, PENNSYLVANIA
COURSE,
Plaintiff CIVIL ACTION - LAW
v
SAMPLE BRIDGE ASSOCIATES,
Defendant 02-692 EQUITY TERM
IN RE: DISCOVERY CONFERENCE
ORDER OF COURT
AND NOW, this 29th day of September, 2004, upon
consideration of Defendant's Motion Pursuant to
Pa. R. Civ. P. 4019 To Preclude Certain Evidence at Trial for
Failure To Comply with Discovery Order, and following a discovery
conference/hearing, the motion is granted to the extent that
Plaintiff is prohibited from introducing into evidence, or
presenting at trial, Mark Eshelman of Mark-Crete, Inc., William
Cook, Silver Spring Township Manager, Kelly Kelch, Silver Spring
Township Assistant Manager, and Bony R. Dawood, P.E., Silver
Spring Township Engineer, to the extent that their potential
testimony was disclosed for the first time in the correspondence
from Plaintiff's counsel to Defendant's counsel dated May 28,
2004, and the Mark Crete, Inc., quote provided to Defendant
Sample Bridge Associates on June 8, 2004.
>. co
tuf' t,
LAJ LIJ
ll 's ••?
N
By the Court,
.i6ennis E. Boyle, Esquire
Lucinda C. Glinn, Esquire
200 N. Third Street
18th Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Attorneys for Plaintiff
/Timothy J. Nieman, Esquire
Twelfth Floor
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Attorney for Defendant
O
J. W ley 0 er Jr., J.
mae
NAUMAN, SMITH, SHISSLER & HALL, LLP
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Lucinda C. Glinn, Esquire
Supreme Court I.D. No. 84737
200 N. 3rd Street, 18th Floor
P. O. Box 840
Harrisburg PA 17108-0840
Phone: (717) 236-3010
Fax: (717) 234-1925
SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
Golf
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY
NO. 03-5935 EQUITY
CIVIL ACTION - EQUITY
MOTION FOR RECONSIDERATION
AND/OR IN THE ALTERNATIVE TO REOPEN DIS?"OVERY AND/OR. IN THE
.......-o nn"' D AI RFPTFMRF.R 29.2004
FOR IMMEDIATE REVIEW
AND NOW comes Plaintiff SSGC, Inc., through its Counsel Nauman, Smith, Shissler
and Hall, LLP, and respectfully requests this Court enter the following written relief.
MOTION FOR RECONSIDERATION
For:
On September 29, 2004, this Court entered an order precluding the introduction of
certain evidence disclosed by the Plaintiff to the Defendant. A copy of said order is attached
hereto as Exhibit `A.'
This order had the effect of barring relevant information from trial because this
evidence had been disclosed after a stipulated discovery deadline, even thought the evidence had
not been withheld in bad faith and even though the Defendant suffered no prejudice as a result of
the disclosure of the evidence.
The Court's order was inconsistent with Pennsylvania law set forth in the
accompanying Brief.
4. The Court failed to apprehend the fact that the information disclosed to the
Defendant did not come to light until after the discovery deadline had passed.
5. The Plaintiff complied with Pennsylvania Rule of Civil Procedure 4007.4 by
disclosing and supplementing its discovery requests as it was required to do.
WHEREFORE, the Plaintiff, SSGC, Inc., respectfully requests this Honorable Court
reconsider its Order of September 29, 2004, and allow the introduction of evidence identified in
that order at trial.
MOTION TO REOPEN DISCOVERY
6. Plaintiff hereby incorporates Paragraphs 1 through 5 as though fully set forth.
7. In the alternative, Plaintiff respectfully requests this Court enter an order
reopening discovery in this matter.
8. At the current time, the above-referenced matter has not been listed for trial, and
no party will be prejudiced by reopening of discovery.
9. The information sought to be introduced is important, relevant and necessary to
the determination of the issues involved in this case on the matter.
10. The preclusion of relevant information from trial where there has been no bad
faith and no evidence of prejudice constitutes a violation of due process.
11. The Court has discretion to reopen the discovery deadline in the interest of justice.
WHEREFORE, SSGC, Inc., respectfully requests this Court enter an order reopening
discovery on this matter.
MOTION FOR CERTIFICATION OF ORDER FOR INTERLOCUTORY APPEAL
12. Plaintiff hereby incorporates Paragraphs 1 through 11 as though fully ste forth.
13. In the alternative, Plaintiff respectfully requests this Court certify its order of
September 29, 2004, for an interlocutory appeal.
14. Orders imposing discovery sanctions may be immediately appealed to the
appropriate appellate court.
15. The Court's Order precluding evidence would prevent Plaintiff from receiving a
fair trial on the merits.
WHEREFORE, Plaintiff SSGC, Inc., respectfully requests this Court certify its order of
September 29, 2004, for immediate interlocutory review prior to a trial on the merits.
Respectfully submitted by:
NAUMAN, SMITH, SHISSLER & HALL, LLP
r?
Dennis E. Boyle, ;squire
Supreme Court I.D. No. 49618
Lucinda C. Glinn„ Esquire
Supreme Court I.D. No. 84737
200 N. 31d Street, I Bd' Floor
P. O. Box 840
Harrisburg PA 17108-0840
Telephone: (717) 236-3010
Facsimile: (717) 2:34-1925
Counsel For: SSGC, Inc. d/b/a Silver Spring Golf
Dated: October 6 2004 Course
(i
i ?':.,.? ,.,,
SSGC, INC., d/b/a IN THE COURT OF COMMON PLEAS OF
SILVER SPRING GOLF CUMBERLAND COUNTY, PENNSYLVANIA
COURSE,
Plaintiff CIVIL ACTION - EQUITY
V
SAMPLE BRIDGE ASSOCIATES, .
Defendant 03-5935 EQUITY TERM
SSGC, INC., d/b/a IN THE COURT OF COMMON PLEAS OF
SILVER SPRING GOLF CUMBERLAND COUNTY, PENNSYLVANIA
COURSE,
Plaintiff CIVIL ACTION -- LAW
v
SAMPLE BRIDGE ASSOCIATES, :
Defendant 02-692 EQUITY TERM
IN RE: DISCOVERY CONFERENCE
ORDER OF COURT
AND NOW, this 29th day of September, 2004, upon
consideration of Defendant's Motion Pursuant to
Pa. R. Civ. P. 4019 To Preclude Certain Evidence at Trial for
t
Failure To Comply with Discovery Order, and following a discovery
conference/hearing, the motion is granted to the extent that
Plaintiff is prohibited from introducing into evidence, or
presenting at trial, Mark Eshelman of Mark-Crete, Inc., William
Cook, Silver Spring Township Manager, Kelly Kelch, Silver Spring
Township Assistant Manager, and Bony R. Dawood, P.E., Silver
Spring Township Engineer, to the extent that their potential
testimony was disclosed for the first time in the correspondence
from Plaintiff's counsel to Defendant's counsel dated May 28,
2004, and the Mark Crete, Inc., quote provided to Defendant
Sample Bridge Associates on June 8, 2004.
By the Court,
C?
J. w ley Oler
Dennis E. Boyle, Esquire
Lre
inda C. Glinn, Esqui
00 N. Third Street
18th Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Attorneys for Plaintiff
Timothy J. Nieman, Esquire
Twelfth Floor
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Attorney for Defendant
mae
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Motion for Reconsideration or to Reopen Discovery Deadline was served by United States First
Class Mail, postage pre-paid, upon those person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12`" Floor
P. O. Box 1146
Harrisburg PA 17108-1146
H. Bailor, Legal Assistant to
s E. Boyle, Esquire
Dated: October 1. 2004
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SSGC, INC. d/b/a/
SILVER SPRING GOLF
COURSE,
Plaintiff
V.
SAMPLE BRIDGE
ASSOCIATES,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 03-5935 EQUITY TERM
ORDER OF COURT
AND NOW, this 25th day of October, 2004, upon consideration of Plaintiff's
Motion for Reconsideration and/or, in the Alternative, To Reopen Discovery and/or, in
the Alternative, To Certify the Court's Order of September 29, 2004, for Immediate
Review, Plaintiffs motions for reconsideration, to reopen discovery, and to certify for
immediate review are denied.
BY THE COURT.,
,J)?ennis E. Boyle, Esq.
Lucinda C. Glinn, Esq.
200 N. Third Street
18th Floor
P.O. Box 840
Harrisburg, PA 17108-0840
Attorneys for Plaintiff
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Jack F. Hurley, Jr., Esq.
vT'Imothy J. Nieman, Esq.
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Attorneys for Defendant
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SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
PRAEC
TO THE PROTHONOTARY:
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY
NO. 03-5935 EQUITY
CIVIL ACTION - EQUITY
'IPE TO DISCONTINUE
Please mark the above-captioned action as discontinued.
NAUMA , MI H, SHISSLER & HALL
By: -
Crai . Staudenmaier, Esquire
Supr a Court ID# 34996
200 North Third Street, P. O. Box 840
Harrisburg, PA 17108-0840
Telephone: (717) 236-3010
By:
Dennis E. Boyle, Esquire
Supreme Court ID#49618
1525 Cedar Cliff Drive
Camp Hill, PA 17011
Telephone: (717) 737-2430
Counsel for SSCG, Inc.,
d/b/a Silver Spring Golf Course
Date: October 30, 2007
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Praecipe to Discontinue was served by United States First Class Mail, postage pre-paid, upon those
person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12th Floor
P. O. Box 1146
Harrisburg PA 17108-1146
NAUMAN, SMITH, SHISSLER & HALL, LLP
By:
Craig J. audenmaier, Esquire
Suprem Court ID# 34996
Dated: October 30, 2007
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SSGC, INC. d/b/a SILVER SPRING
GOLF COURSE,
Plaintiff
V.
SAMPLE BRIDGE ASSOCIATES,
Defendant
PRAEC
TO THE PROTHONOTARY:
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY
NO. 03-5935 EQUITY
CIVIL ACTION - EQUITY
'IPE TO DISCONTINUE
Please mark the above-captioned action as discontinued.
NAUMAW. MITH. SHISSLER & HALL
By:
Craig J Staudenmaier, Esquire
Sucre a Court ID# 34996
200 North Third Street, P. O. Box 840
Harrisburg, PA 17108-0840
Telephone: (717) 236-3010
By: Z?7 -
Dennis E-.oyle, Esquire
Supreme Court ID#49618
1525 Cedar Cliff Drive
Camp Hill, PA 17011
Telephone: (717) 737-2430
Counsel for SSCG, Inc.,
d/b/a Silver Spring Golf Course
Date: October 30, 2007
CERTIFICATE OF SERVICE
I hereby certify that on the date written below, a true and correct copy of the foregoing
Praecipe to Discontinue was served by United States First Class Mail, postage pre-paid, upon those
person(s) listed below:
Timothy J. Nieman, Esquire
Rhoads & Sinon, LLP
One S. Market Square, 12th Floor
P. O. Box 1146
Harrisburg PA 17108-1146
NAUMAN, SMITH, SHISSLER & HALL, LLP
By:
Craig J. t enmaier, Esquire
Supreme rt VID# 34996
Dated: October 30, 2007
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