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03-6564
RICHARD C. ANGINO, ALICE K. ANGINO IN THE COURT OF COMMON PLEAS and KING DRIVE CORP. CUMBERLAND COUNTY, PA Plaintiffs V. CIVIL ACTION - IN LAW AND EQUITY RONALD L. CRANDY, Defendant NO. NOTICE TO DEFEND 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 judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 TELEPHONE 717-249-3166 RICHARD C. ANGINO, ALICE K. ANGINO IN THE COURT OF COMMON PLEAS and KING DRIVE CORP. CUMBERLAND COUNTY, PA Plaintiffs V. CIVIL ACTION - IN LAW AND EQUITY RONALD L. CRANDY, Defendant NO. AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se persentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a , las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede set dictado en contra suya por la Corte sin mas aviso adicional. Used puede perder dinero o propiedad u otros derechos importantes para used. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTF,. SI USED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE WFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 TELEPHONE 717-249-3166 RICHARD C. ANGINO, ALICE K. ANGINO IN THE COURT OF COMMON PLEAS and KING DRIVE CORP. CUMBERLAND COUNTY, PA Plaintiffs V. CIVIL ACTION - IN LAW AND EQUITY RONALD L. CRANDY, Defendant NO. 03 - G_s Y COMPLAINT 1. Plaintiffs Richard C. Angino and Alice K. Angino are husband and wife and King Drive Corp. is a corporation the stock of which is 100% owned by Richard C. Angino. Plaintiffs Richard C. and Alice K. Angino and King Drive Corp. have their residence and business address at 2040 Fishing Creek Valley Road and 4503 North Front Street, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant Ronald L. Crandy lives at 309 Sharon Drive, New Cumberland, Cumberland County, Pennsylvania. 3. In the mid 1980s, Richard C. and Alice K. Angino purchased approximately 60 acres of land currently known as "Willow Lake Subdivision in Silver Spring Township, Cumberland County, Pennsylvania. 4. At or about the same time, Defendant Crandy purchased 35 acres of land adjoining and north of Willow Lake Subdivision. 5. Plaintiffs Richard C. and Alice K. Angino agreed to provide an easement of necessity for Ronald L. Crandy to access his 35 acres. 6. Plaintiffs Richard C. and Alice K. Angino and later King Drive Corp. expended considerable monies approximating $300,000 for the construction of a road from King Drive Road through Plaintiffs' 60 acres up to the entry lane for Defendant Crandy's 35 acres. 7. Defendant Crandy contributed no monies toward the approximately $300,000 expended by the Anginos and King Drive Corp. for the road. 8. As part of the installation of utilities, Plaintiffs' independent contractor may have inadvertently trespassed upon Defendant Crandy's 35 acres. 9. Without any communication whatsoever with Plaintiffs, Defendant Crandy installed numerous offensive retaliatory signs at the end of Plaintiffs' development and at the beginning of Crandy's 35 acres. 10. Plaintiffs apologized for any inadvertent trespass and attempted to amicably resolve any problem or concern of Defendant Crandy through their agent C. Kenney Vandenburgh. 11. Plaintiffs, through their agent C. Kenney Vandenburgh, pointed out that the numerous large offensive retaliatory signs were causing potential buyers of building lots to forego the purchase of building lots because of the objectionable nature of Defendant Crandy's signs. 12. Plaintiffs did everything they could to attempt to accommodate Defendant Crandy, including at his suggestion the preparation of an agreement attached as Exhibit A. 13. Instead of signing the agreement which included the terns and conditions he suggested or suggesting additional terms and conditions, Defendant Crandy added more and larger retaliatory, offensive signs. Picture of signs attached as Exhibit B. 14. Defendant Crandy has refused to respond to telephone calls and other communications and has refused to take down his numerous large, offensive, retaliatory signs. 15. Defendant Crandy has violated and continues to violate well established legal principles of nuisance, intentional interference with contractual and potential contractual 269792.1\RCA\SC 2 relationships, intentionally causing harm to Plaintiffs' business for which Plaintiffs are entitled to substantial damages. 16. Plaintiff's are also entitled to be reimbursed for an appropriate percentage of the approximately $300,000 cost entirely borne to date by Plaintiffs from which Defendant Crandy has received a substantial benefit. WHEREFORE, Plaintiffs seek an injunction requiring Defendant Crandy to immediately remove the numerous offensive signs and also pay damages for erecting same, as well as providing reasonable reimbursement for the benefits he has obtained through the expenditure of approximately $300,000 for the road that gives him access to King Drive. Respectfully submitted, P.C. ichazd C. gino, Esquire I.D. No 7140 Jo . Stehulak, Esquire No. 29496 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiffs Date: 12/19/03 269792.1\RCA\SC 3 Exhibit A AGREEMENT THIS AGREEMENT ("Agreement") made this day of November, 2003 by and between KING DRIVE CORP., by Richard C. Angino, President, of 4503 North Front Street, Harrisburg, Pennsylvania ("Developer") and Ronald L.Crandy of 309 Sharon Drive, New Cumberland, Pennsylvania, ("Landowner"). RECITALS: The background of this Agreement is as follows: R-l. Developer is the fee owner of approximately sixty (60) acres of land known as Willow Lake Subdivision in Silver Spring Township, Cumberland County, Pennsylvania (the "Property"). R-2. Developer has subdivided the sixty (60) acres into seventeen (17) residential building lots that are being sold to prospective homeowners. R-3. Landowner is the fee owner of approximately thirty-five (35) acres of land adjoining Willow Lake Subdivision north of Lots 8 and 9 and between Lots 8 and 9 southward to Willow Lake Drive. R-4. Landowner accesses the approximately thirty five (35) acres on an unimproved driveway located within a fifty (50') feet wide and approximately three hundred sixty five (365') feet long portion of the tract that adjoins Willow Lake Drive between Lots 8 and 9. R-5. Developer wishes to re-grade, landscape, control storm water, install underground utilities and macadam a ten feet (10') wide cartway in the approximately 50' by 365' portion of the tract beginning at Willow Lake Drive. NOW THEREFORE, the parties hereto, intending to be legally bound, mutually agree as follows: Recitals. The above recitals are incorporated herein by reference as if fully set forth herein. 2. Agreement. A. Developer hereby agrees to complete the following, at Developers expense, on or before June 30, 2004: (1) installation of, on Landowner's property, a two inch (2") thick layer of binder-type asphalt paving ten feet (10') in width from Willow Lake Drive for approximately three hundred sixty-five cy- Ott A feet (365') to a point equal to the northern boundaries of Willow Lake Lots 8 and 9. (2) Grade the area to properly control storm water, install temporary erosion and sedimentation controls, stabilize and landscape the area. B. Landowner hereby agrees: (1) to permit Developer to complete the work described herein and to install utility lines on the southern twenty feet (20') of the Landowner's property. (2) to relocate, at Landowner's expense, the entry gate to an area near or above the northern boundaries of Willow Lake Lots 8 and 9. (3) to permit Developer to landscape the areas at the entrance to and along Landowner's macadam drive from Willow Lake Drive to an area adjacent to the northern boundaries of Lots 9 & 10 with landscaping material determined to be appropriate by Developer. (4) to remove all signage south of the boundaries of Lots 8 and 9 at the time of signing this Agreement. (5) to not disturb, in any way, the landscaping or interfere with the utilities or replace any signange or disturb Developer's right- of-way to the landscaping or utilities. C. The parties agree that this Agreement will be binding upon heirs and assigns and run with the title to the land. THIS AGREEMENT contains the entire understanding between the parties hereto and supersedes any prior written or oral agreements between them respecting the written subject matter. There are no representations, agreements, arrangements or understandings oral or written, between the parties hereto relating to the subject matter of this instrument, other than as referred to herein. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this agreement to be executed the day and year first above written. WITNESS: KING DRIVE CORP. By: Richard C. Angino, President Developer Ronald L. Crandy Landowner COMMONWEALTH OF PENNSYLVANIA ) SS: COUNTY OF CUMBERLAND ) On this the day of 2003, before me, a Notary Public in and for the Commonwealth of Pennsylvania, the undersigned officer, personally appeared Richard C. Angino, who acknowledged himself to be the President of King Drive Corp., and that he as such President, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as President. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS: On this the day of , 2003, before me, a Notary Public in and for the Commonwealth of Pennsylvania, the undersigned officer, personally appeared Ronald L. Crandy, known to me to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public Exhibit B dSBrta x? Jam. ? _ '?? ?. • • ?? Y -Y -'T it ^ 3 .. VERIFICATION I, Richard C. Angino, Plaintiff, have read the foregoing Complaint and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities. Dated: 14190-3 ?, f?\ (? ?f C ?.U Lr - , ? c t•- r- -- ? R ? ^ ~ ' a ?J ? -? ?; ?, ?. ??. ?,.> ?_ ?'? hJ ?? . ? ?? <<,T w ,,, - ?,? .? ? .,. ?, _ RICHARD C. ANGINO, ALICE K. : IN THE COURT OF COMMON PLEAS ANGINO and KING DRIVE CORP., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : CIVIL ACTION - IN LAW AND EQUITY RONALD L. CRANDY, Defendant : NO. 2003-6564 CIVIL 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 WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 RICHARD C. ANGINO, ALICE K. ANGINO and KING DRIVE CORP., Plaintiffs V. RONALD L. CRANDY, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTy, PENNSYLVANIA CIVIL ACTION - IN LAW AND EQUITY NO. 2003-6564 CIVIL ANSWER, NEW MATTER AND COUNTERCLAIM AND NOW comes Ronald L. Crandy, through his attorneys Richard C. Rupp, Esquire, and Rupp and Meikle, who makes the following Answer, New Matter and Counterclaim to the Plaintiffs Complaint as follows: 1. Admitted in part and denied in part. It is admitted that Plaintiffs Richard C. Angino and Alice K. Angino are husband and wife and it is admitted that ring Drive Corporation is a corporation. The Defendant is without sufficient knowledge to form a belief as to the remaining averments of Paragraph 1 and they are therefore denied and strict proof at trial is demanded. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that in the mid- 1980s Richard C. Angino and Alice K. Angino were purchasers of certain land known as Willow Lake Subdivision in Silver Spring Township, Cumberland County, Pennsylvania. The purchase arrangement was for Defendant Ronald Crandy to purchase 40 acres, for Mr. Vogelsong to retain 15.77 acres and for Richard C. Angino and his wife and/or their corporation Kings Drive Corporation, to purchase the balance of land. It is believed that the approximate balance was 52 acres. By reason of negotiation between Defendant Ronald Crandy and Plaintiff Richard Angino, Richard Angino agreed to pave the right- of-way road from Ronald Crandy's property all the way to the road, a 1 width of 10 feet the entire distance in exchange for the relinquishment of 5 acres from Defendant Crandy's proposed lot or tract to Plaintiff Richard Angina's lot or tract. 4. Admitted in part and denied in part. It is admitted that about the same time Plaintiffs entered an Agreement to acquire 52 acres, Defendant Crandy entered into a Purchase Agreement for the purchase of 40 acres of land adjoining and north of the Willow Lakes Subdivision. It is denied that at about the same time, the original Purchase Agreement was for 35 acres. To the contrary, the original Purchase Agreement was for the purchase of 40 acres by Defendant but due to the above described negotiation between Defendant Crandy and Plaintiff Angina, 5 acres of the proposed tract for Defendant Crandy was relinquished to Plaintiff Angino in exchange for Plaintiffs paving the right-of-way road. A copy of Defendant's original Agreement of Sale as amended is attached hereto as Exhibit A and incorporated herein by reference. 5. Admitted in part and denied in part. It is admitted that Plaintiffs Richard C Angina and Alice K. Angino agreed to grant Defendant Crandy a right-of-way easement for the proposed right-of-way road from Defendant Crandy's property to the main road by way of a So. foot right-of-way road. It is denied that this was negotiated between Plaintiffs and Defendant. To the contrary, said right-of-way road had been negotiated by Defendant with the seller of the property as a requirement or condition to purchase the 40 acres originally intended to be purchased by Defendant. It is denied that said right-of-way road was called an easement of necessity. To the contrary, there was no reference to referring to said right-of-way road as an easement of necessity for Defendant. By way of further answer, said 50 foot right- of-way road was proposed on a subdivision plan for the overall tract of 2 property and approved by the Township in the subdivisions filed of record for this overall property. There was discussion of the parties entering into a Right-of-Way Agreement which would have provided for the maintenance of the road, including assistance by the Defendant for maintenance but not for construction. However, the Defendant believes and therefore avers that no agreement was ever finalized nor filed of record. By way of further answer, Defendant believes that the only easement therefore was the easement first shown on the first plan recorded of record which showed a 50-foot right-of-way road extending from Defendant's property to the road through the Willow Lake Subdivision property. 6. Admitted in part and denied in part. It is admitted that Plaintiffs Richard C. Angina and Alice K. Angina and later King Drive Corporation expended considerable monies for the construction of a road from King Drive Road through Plaintiffs 60 acres up to the entry lane for Defendant Crandy's 35 acres. As the Defendant is without sufficient knowledge or information to know what was spent by Plaintiffs, such averment is therefore denied and strict proof if relevant at trial is demanded. 7. Admitted in part and denied in part. It is admitted that Defendant contributed no cash monies to the averred sum of $300,000 expended by Anginos and King Drive Corporation for the said right-of-way road. However, it is denied Defendant made no contribution toward the construction of the right-of-way road. To the contrary, there was an agreement between Defendant Crandy and Plaintiff Angina that Plaintiff Angina would pave a 10-foot width the entire distance from the edge of Defendant Crandy's property all the way to the road for this 50-foot wide right-of-way road. Said contribution of Defendant's 5 acres to Plaintiffs referred to hereinabove for paving was a novation to K the parties' original understanding concerning the right-of-way such that in consideration of the Defendant's relinquishment of the 5 acres to Plaintiffs, Plaintiffs agreed to bear all construction costs for said right-of-way road and pave a 10-foot width the entire length. 8. Admitted in part and denied in part. It is admitted that Plaintiff's contractor trespassed upon Defendant Crandy's 35 acres. As the Defendant is without sufficient knowledge or information as to whether Plaintiffs contractor was independent of the Plaintiff or whether said trespass was inadvertent are not within the knowledge of Defendant Crandy and therefore they are denied and strict proof at trial is demanded. It is denied that the trespasses were inadvertent as Defendant had showed Plaintiffs surveyors on 3 different occasions where Defendant's property pins and property lines were which Plaintiffs surveyors marked with more red ribbons and a stake. Following those occasions, Plaintiff's contractor removed 1 pin, broke the lock on Defendant's gate and then ran an electric line behind Defendant's gate on Defendant's property. Following that occasion, Defendant communicated to Plaintiffs contractor that contractor had been on Defendant's land to install Plaintiffs electric line. Following Defendant's communication with the contractor and an additional communication with the Township, the Plaintiffs contractor caused soil to be removed from Defendant's land without his permission. At a later occasion, Plaintiffs contractor entered Defendant's land, removing other pins marking his property lines and apparently reducing his lot size. At a later date at the end of 2003, Plaintiffs contractor or agents installed shrubbery within the cul-de-sac area which interferes with the Defendant's enjoyment of his right-of-way road going to Kings Drive and following this, Plaintiffs agent or contractor removed Defendant's mountain rocks which marked 4 Defendant's border with Plaintiffs cul-de-sac in the right-of-way road and then Plaintiffs contractor installed tanbark on Defendant's land. 9. Admitted in part and denied in part. Defendant Crandy, after several trespasses upon Defendant Crandy's adjoining tract by Plaintiff's contractor or agents and the piling of piles of dirt which served to block the use of the right-of-way road and entry from the road into Defendant Crandy's property, Defendant Crandy installed private property and no trespass signs. It is denied that there was no communication whatsoever with Plaintiffs as Defendant Crandy had informed both Plaintiff Richard Angina's agents and contractor that it was private property and that they were on it. To the contrary, Defendant Crandy had made communications with both the Plaintiffs agents and the contractor for Plaintiff that they had and were on private property belonging to Defendant Crandy. It is denied that the signs installed were retaliatory or offensive signs. To the contrary, said signs were designed to inform the Plaintiffs agents and contractors in accordance with the Defendant's constitutionally protected rights that Mr. Crandy's property was private and that he did not desire any further trespassing onto his property. Said signs were also similar to existing signs which have long been installed by an adjoining neighbor named Brehm to the Plaintiffs subdivision. Defendant and Plaintiffs agent met and discussed terms for a proposed Agreement. Following this meeting, the Plaintiffs agent sent Defendant a proposed Settlement Agreement which Plaintiff has attached as Exhibit A to Plaintiffs Complaint. Said Agreement was never signed. There was communication between Defendant and Plaintiffs Agent Vandenberg that said Agreement did not include numerous points which had been communicated to Plaintiffs agent Vandenberg. Vandenberg became upset and promised to meet with Plaintiff to discuss and then hung up 5 his telephone. Then in December, Defendant received a proposed Settlement Agreement, at which time Defendant hired his own surveyor. Approximately 1 or 2 weeks after receiving the second proposed Settlement Agreement, the Defendant received a proposed lawsuit in the mail from Plaintiffs which was essentially the Complaint that was eventually filed by Plaintiffs in the Court of Common Pleas of Cumberland County, but with the first proposed Settlement Agreement attached as Exhibit A to Plaintiffs Complaint 10. Admitted in part and denied in part. It is denied that Plaintiffs apologized for any inadvertent trespass onto Defendant's property. To the contrary, Defendant has not received any apology from Plaintiffs. It is admitted that Defendant Crandy had communications with Plaintiffs agent, C. Kenny Vandenberg, which initially appeared to be an attempt to amicably resolve the problems or concerns with Defendant Crandy until Defendant Crandy received the 2 proposed Settlement Agreements and the proposed lawsuit in the mail. 11. Denied. It is denied that Plaintiffs through their agent, C. Kenny Vandenberg, pointed out that the numerous large offensive retalitory signs were causing potential buyers of building lots to forego the purchase of building lots because of the objectional nature of Defendant Crandy's signs. To the contrary, when Defendant Crandy spoke with Plaintiffs agent, the only signs that had been erected by Defendant were the standard yellow "no trespass" signs which were installed due to the prior year when Plaintiffs contractor attempted to interfere with Defendant's hunting and had told certain hunters that it was permitted to hunt on Defendant Crandy's property. Further, Plaintiffs agent never told Defendant to remove any signs but in fact, to the contrary, he told Defendant Crandy not to remove any signs until the parties reached their settlement. By way of further answer, after 6 the proposed lawsuit was received by Defendant Crandy in his mail, he removed the larger signs as that was the only instance when Defendant Crandy learned that his signs might have been offensive to Plaintiffs, realizing however that the signs were not offensive and were protected by Defendant's constitutional rights. 12. Admitted in part and denied in part. It is admitted that Defendant Crandy suggested that Plaintiffs or their agent prepare an Agreement to resolve the issues between Plaintiffs and Defendant. It is denied that the Agreement proposed to be prepared is the Agreement attached as Exhibit A to Plaintiffs Complaint. To the contrary, although the Agreement as Exhibit A to Plaintiffs Complaint was proposed to Defendant Crandy, it did not contain whatsoever all of the solutions requested by Defendant Crandy to his issues. By way of further answer, Defendant Crandy so advised Plaintiffs agent that the Agreement did not address his issues. Plaintiffs agent talked to Plaintiffs and reported to Defendant Crandy that his issues were accepted and a new proposed Agreement would be issued but after said proposed Agreement was issued. However, Plaintiffs agent issued 2 proposed Agreements to Defendant which did not resolve Defendant's issues whatsoever and following Defendant Crandy's receipt of a proposed lawsuit in the mail, communications ceased between Defendant and Plaintiffs. It is also denied that Plaintiffs did everything they could to attempt to accommodate Defendant Crandy. To the contrary, Plaintiffs did not propose any Agreement which attempted to accommodate Defendant Crandy's issues in full and Defendant Crandy so advised Plaintiffs agent after receipt of the first proposed Agreement. 13. Admitted in part and denied in part. It is admitted that Defendant did not sign any of Plaintiffs proposed Agreement. It is denied that 7 instead of signing the Agreement that included the terms and conditions he (Defendant Crandy) suggested or suggesting additional terms and conditions, Defendant Crandy added more and larger retalitory offensive signs. To the contrary, the first proposed Agreement which is attached as Exhibit A to Plaintiffs Complaint did not include Defendant Crandy's solutions to his issues and therefore Defendant did not sign said Agreement and Defendant Crandy so informed Plaintiff's agent of his reasons for not signing. The larger signs which are depicted in the picture attached as Exhibit B to Plaintiff's Complaint were not erected by Defendant Crandy until after Plaintiff's agents removed Defendant's mountain rocks, marking Defendant's boundary along the cul-de-sac arc, and installed tanbark onto Defendant's property which had no relationship to the proposed Agreements. It is further denied that said signs were retalitory or offensive as they merely said private property on them and are protected by Defendant's constitutional rights. 14. Denied. It is denied that Defendant Crandy has refused to respond to telephone calls and other communications and has refused to take down his numerous large offensive retalitory signs. To the contrary, Defendant Crandy has not refused to respond to telephone calls. By way of further answer, it is believed that Plaintiffs agent became beligerent or angry at Defendant Crandy. Further, Defendant Crandy has not received any other communications from Plaintiffs except for the second proposed Agreement and the proposed lawsuit and then the service of the current lawsuit by the Sheriff of Cumberland County. It is further denied that Defendant has refused to take down "his numerous large offensive retalitory signs". To the contrary, before the lawsuit was filed, Defendant Crandy had removed and further he took down some of the yellow no trespass signs but the larger signs were 8 not numerous. Said larger signs were not offensive nor retalitory. Defendant's signs were allowable, non-offensive, "private property" signs, protected by Defendant's constitutional rights. By way of further answer, Defendant Crandy was not contacted by the Township nor the Township's police department that said signs were in violation of any ordinance or constituted a nuisance. 15. Denied. Said averment constitutes a legal conclusion and no answer is required. However, to the extent that an answer is required, it is denied that Defendant Crandy has violated and continues to violate well established legal principles of nuisance, intentional interference with contractual and potential contractual relationships, intentionally causing harm to Plaintiffs business which Plaintiffs are entitled to substantial damages. To the contrary, Defendant Crandy did not violate any legal principles of nuisance with contractual potential relationships nor did Defendant intentionally cause harm to Plaintiffs business. It is denied that Plaintiffs are entitled to any damages. To the contrary, Plaintiffs are not entitled to any damages as Defendant has not interfered with nor caused any harm to Plaintiffs business. WHEREFORE, Defendant requests this Honorable Court to enter judgment in favor of Defendant and against Plaintiffs and granting a judgment for costs, expenses and legal fees to Defendant. NEW MATTER And now comes the Defendant who avers the following New Matter. 16. Paragraphs 1 - 15 of Defendant's averment in Defendant's Answer are incorporated herein by reference as if set forth at length. 9 17. If Plaintiffs Complaint claims that Exhibit A represents an agreement between the parties, then said agreement is in violation of the Statute of Frauds as there was never any signed written agreement. 18. Plaintiffs proposed agreement or any other agreement is null and void in violation of the Statute of Frauds. 19. The parties never reached a meeting of the minds in which they finally agreed on the terms of any agreement. 20. Therefore there is no agreement and therefore there is no agreement between the parties. Any claim by Plaintiffs that the parties reached an agreement is false. 21. In fact, Plaintiffs agent upon rejection by Defendant of the first contract which is attached as Exhibit A to Plaintiffs Complaint, then proposed a second written agreement to Defendant which was not acceptable to Defendant but which Defendant did not get a chance to review as Plaintiffs mailed a draft of the Complaint to Defendant. Upon review, however, Defendant would have rejected the second proposed Agreement. WHEREFORE, Defendant requests this Honorable Court to enter judgment in favor of Defendant and against Plaintiffs and granting a judgment for costs, expenses and legal fees to Defendant. 22. To the extent that Plaintiffs claim they have been harmed by Defendant's signs or that Defendant's signs constitute a nuisance or intentional interference with contractual and potential contractual relationships or that Defendant's signs intentionally caused harm to Plaintiffs business, Defendant's signs are protected by Defendant's constitutional rights and Defendant is entitled to judgment against Plaintiffs. 10 WHEREFORE, Defendant requests this Honorable Court to enter judgment in favor of Defendant and against Plaintiffs and granting a judgment for costs, expenses and legal fees to Defendant. 23. With respect to Plaintiffs claim that Defendant did not pay any monies toward an averred expense of $300,000 expended by Plaintiffs for the right-of-way road, the Plaintiffs have not averred any contractual obligation upon Defendant for any such expenses. Furthermore, the expense of the right-of-way road was upon the Plaintiffs per the Plaintiffs original understanding with the seller as a condition to acquire the land known as the Willow Lakes Subdivision as well as it was upon the Plaintiffs per the parties' understanding concerning the right-of-way and as part of a novation, Defendant relinquished 5 acres in the original Purchase Agreement from his tract to Plaintiffs in order that Plaintiffs would bear the entire construction cost of said right-of- way road and would pave a 10-foot wide section of the right-of-way road all the way from Defendant's property to King's Drive. WHEREFORE, Defendant requests this Honorable Court to enter judgment in favor of Defendant and against Plaintiffs and granting a judgment for costs, expenses and legal fees to Defendant. 24. In the alternative, Plaintiffs are estopped from claiming any dollars or damages from Defendant for contribution to the construction of the road by reason of the prior conditions which were placed upon Plaintiffs to acquire the land, the obligations upon Plaintiffs to file and obtain approval of their subdivision plans and the parties' prior agreement or understanding with Defendant whereby Defendant relinquished 5 acres of his original land to Plaintiffs. 11 WHEREFORE, Defendant requests this Honorable Court to enter judgment in favor of Defendant and against Plaintiffs and granting a judgment for costs, expenses and legal fees to Defendant. 25. In the alternative, Plaintiffs are prevented from claiming any dollars or damages from Defendant as contribution toward the construction of the right-of-way road by reason of laches. WHEREFORE, Defendant requests this Honorable Court to enter judgment in favor of Defendant and against Plaintiffs and granting a judgment for costs, expenses and legal fees to Defendant. And now comes Defendant who avers the following Counterclaim against Plaintiffs: 26. Defendant incorporates Defendant's paragraphs 1 - 26 in his Answer and New Matter as if set forth at length. 27. Defendant has sustained damages by reason of Defendant's agents trespassing on Defendant's land as follows: • Removing Defendant's top soil from his land; • Removal of Defendant's boundary marking pins; • Moving Defendant's boundary marking pins; • Installing a private electric line, apparently improperly, within Defendant's ground; • Removing Defendant's mountain rock which Defendant has installed as a boundary marker between the parties' lands; 12 • Planting shrubs or installing soil which blocked or interfered with Defendant's full right of egress and ingress between his property and the 50-foot right-of-way road; • Damaging Defendant's gate. 28. By reason of the above acts or actions of Plaintiffs, Defendant has incurred surveyor fees to relocate Defendant's boundaries for his property lines. 29. By reason of the above acts or actions of Plaintiffs, Defendant has incurred legal fees to represent Defendant, including defending this lawsuit. WHEREFORE, Defendant requests this Honorable Court to enter judgment in favor of Defendant and against Plaintiffs and granting a judgment for Defendant's damages, costs, expenses, surveyor fees and legal fees to Defendant. RESPECTFULLY SUBMITTED, RUPP AND MEIKLE By: Ric aid C. Rupp, Es e Atty. I. D. No. 34832 355 N. 21" St., Ste. 205 Camp Hill, PA 17011 717-761-3459 Attorneys for Defendant 13 VERIFICATION 1, Ronald L. Crandy, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. Said statements are based on my own knowledge, belief or information. 1 understand that false statements herein are made subject to penalties of IS Pa. C.S.A. * 4904 relating to unsworn falsification to authorities. Date: 2 AONALD L. CRANDY wno?nau c AL AGREEMENT FOR THE SALE OF REAL ESTATE THIS AGREE WENT "&and assumed into this -21s1 dos at Dec. 19 64 helwean MARY K. VANDENBURGH ABSoCJAl ES nveirafler ,dewed tow Real Elult Broker, as Agent lire the Owner, nerelnafta referred to both Irbividueby Ond collertiWIV w Seller. ND Ronald L. Crandy, 123 Brian Drive, ?nola, Pennsylvania 17025 (717)_ 732_5671 rgyfraiV"9le refs IP bar,- mP,ndualty and tlllerinely w buyti.--_ -_ ----_ __ - - Bwell hereby 09,69, to buy the following sudden, , Approximately 40_ ac} @?9 land._as. shoxn_ on _the_ attached_ plot plan. marked_ _ Exhibit "All UP., the Rrrm an,, cmdnlPni as tpIIGM 1 PRICE. - See attached 'amendment COn` CHECK:' NOTE C1 CASH Gat prima of this lO pOQ, 00 Apretmrnt, initial of wench is h„,b, acenaw'9og<dcerning the disposition and terrzr; . _ _ n!a n/a of this bieposit. Ono, before the n.--day of -.--.1 ._.,n ash ...................5 _/?/?y.rt.rt _//t rQA9 _trtt Ca,h. Colher's Check, or centered check as Sentiment .... ..............................S _3U1QQ - Financingas set font, Glow .. .. .... ..... .. ... ............ ......... .f __ _O_ TOTAL PRICE .... . ,g 40, 000.00 TM agreereem,)Vs not contingent upon Buyer obtaining financing as follows. fA) Principal Amount n 1a Iii) Type of Finance no nJa lot Maximum Initial Role n1a Pal Pnnum. Icl Minimum Terms Yaws. IE) Trinomial dam, for obtaining intertgag, commitment nla .••°' n -a Real Eatom Broker is not rnPOnsible for 011OVing Prancing, ben may advise a to possible sour"a. 2. SPECIALCLAUSES: See attached amendment 7. SETTLEMENT: Upon the failure of Buyer to make taWemern by Memories PU'ChM money intuit on w before lUrr_h_?9,, ig-6 Me within spy exenlon of the Settlement "t, this ^seament shall be cod and fist erriount Paid by the Sm", sMIl be forfeited w liquidated dwrlopw. Prrmwion IS granted Listing Real Estate Broker to extend. without further notice to the patin hem". the within t dote of this Awarrant /or a pried not to exceed forty-five 145) days, f;w"l nMer of deed is hereby walhsd. 11 this agreement is contingent upon finanunp, it is understood and Bprad that it, after full cooperation of Buyer, alormosid financing is not obtained the dtp nit WII be returned. Ins any *,wom mVned on behalf of Buys,. tad this agreement shell be null and mid. 4. PERSONALTY: All Plumi hosting and lighting features. and systems appurteneni thereto and forming a pore mereol, a well as BII urges, foundry orbs, T. V. antennas, mast and rotor systems, together with bran norm men ari doors, almost, swnog,, s alun blinds. coupling, for suto n Seer worries and dryers, etc.- rodiato, cowra, cornices, kitchen "beau, dreary rods, dupery rod raNware, curtain rods, curtain rod hardware. fix. tul otter Permanent textures. tic., all teas, shrubbery. plantings now in or on property, and remaining hearing Md cooking lush noted on premnw, it any. unleet sp rcih"IlY excepted in this agreement, shall be laluded in the wit mid purchase price. None of the fib sew mentioned nom suN be nmowd Pnuro by Seller Iron premises $free date of this agreement. Setter shall deliver giwd title to all ins articles checrioed in this Paragraph, and any ,he, w nams of personalty specil really scheduled and to be included m this tale, which are lined as follows 5 TRANSFER TAKES Real Estate transfer maps shall be paid n follone One 1 %by Buee, One 1 %oy Stier or equally 6 POSSESSION: Possession shall be 9iw a at settlement - dollar per do, shall be Paid by NJA Rent. at the nn of NIA untie NJA ugrantetlnabow. 7. ST AT US OF WATER AND SEWER: Seller warrant that thespropeny is Serviced by private Mile, and Private eewe i. Further, Geller warrants that those systems are tut ly paid for and. in of the tote of this agreement. are in satisfactory operating condition. II afore coo systems are private, Settle warrants jetW he has no informatdn that public tar and sewer will be =eased r inmhed fora east Is 161 no to inspa iafion wii rbeT'tKe erespon ib° y n.lvgun eontetelst aver" B MUNICIPAL IMPROVEMENTS'. Saber has no notice of munuipal ,mprowmeno Isuch as sibewsife, Cura, rec.) ex"pI 9. ADJUSTMENTS AT SETTLEMENT: Texas, rein, weer and Sewer rime and all other drike claims and charges upon the abuw described Promises shall be appontuned at the time of Settlamenl. Purchase price {Missies fuel oil rainstorms in took at Ian a of wMJlw Ml 10. RISK OF LOSS: Seller "it bow risk of ion from Ire Or other sexually until time of ageement. In the event of domne to rise prnperry by fees i or other "salty. Buyer shall Mw der Station at rescinding this agreement cod raiwinnd hand money paid on mcausin or of occepejul the progeny in it, C U than condition with the proceeds of any horsewhip ralwry obtainable by Seller. ? W O M R 11. TITLE: lEellw shall convey, to Buyer fry general wamre deed good and nulkelable title Iwhich cen be fortified by Buyer '$ otlorray or insured or, lP V R in nandord rein by a title comemo, regularly unudng till" m PlonsylwNa) subject to building. toning and dead restrictions, and easwntals of Mosel eD •+ SL V. 7 we visible by inspection. O n' 12. REJECTION OF TITLE: In rase material MIKIS are found m the II"e. and reported to Sellei, then, if Such defects we Pal cured by Better with :0 V. n V in sixl, 1601 days. the contract shall become null and ext and Monte. Paid by Buyer shat pe relumed, at the option of Buyer. Belo, agrees m me OpPlr V V . C - "Iion or so much of the purchase ,May a, required to ens Payment of loin and encumbrence. a se Wemenf. C"< V. ea 13. AGENTS LIABILITY: It is undemood Ins' the Real Estate Broke a annng as Open, only and shall in no eat whatsoever be hold liable to G B. , o C• either pony for the performance of any vim or cownmm of this opreernMt a IoM doormen. fat nomperfUrmonee thereof. r• ^ C. Q tt 14. DEPOSITS. All psymams on oceount of this transaction share be retained it.. a wants escrow s mum for the benela of flit poll to this " O ^ transaction. Pursuant to the Rules MCI Pagulatfons of the State Rut Emu Commission. In rev of a co broke Jolt, Jos "ymrnl well be hold by IM V. .• C la,i NOkef T (! 15 15 'NSPE CT ION It koernood treat Bwei has respected the pnopenv lire has wnvad me nphl to do wt Ond is not refynp upon any rspresenss - e . ., eon by BNIei, no Agent or Broke' K _ C 16 ZONING OR OR DEED RES ESTRICTION Saner warrants t the p use of proptny riolnn no existing toning orGrance or ragurabon, Tht Q V l.m n I and that Senn raw n" natitt wMtspewr of any P t owd osed )land ena i raw Plead m V re t P 177. . COPIES ES This agreement. oecmed in owmup¢nr contain the Ln11 and entire agreement between the Dsnfa except al omlewf.e P,owdod if. C L' F harem. Cop" allots o9reemem. shall be held be, the Real Estate Brost rI 10 LEGAL RESPONSIBILITY: This is a &".It, binding xonnan. 11 not und9nloed, conwh your attorn6y. C E n F f. ' 19. APPROVAL Th., agn,nerni is subject m In, wnnrr. Ae or Stuw V ' _ IN WITNESS WHEREOF in, apd Patties hove reeleurnc sr me• lanai no tea's. nntndmg to bind tneanrivrs shelf ret?n mminauatun eaecutms . G C ano w.fgns. All Psfbel rents, ackno -mor receipt at a IW iv t.ecutrl Cup, P' the' a9'etmrnt t1 ir C MARY K VANDENBURGH ASSOCIATES w1TNE55 C g: C 0 Er _JSur C C .. ? U, / - bvve ( C. EG ` See C F F.,re fe n''•cam. Ib z r2p6P r' T e. f.' .r n.:,.nli i. .. ,.....+. • .in':: e. fP. p:.. .f, ii. .. L.+....a _.f.,. n ,r,ir...p. .., rlq It' ter bg.h, t-,,,C 1," Ehin k'r... n v ISO, Ssnr AMENDMENT TO THE AGREEMENT FOR SALE OF REAL ESTATE THIS AMENDMENT to the Agreement for Sale of Real Estate made this 21st day of December, 1984 by and between Walter Jay Vogelsong of R. D. #b, Box 282, Carlisle, Pennsylvania, (hereinafter referred to as "Seller") and Ronald L. Crandy of 123 Brian Drive, Enola, Pennsylvania (hereinafter referred to as ''Buyer"). WHEREAS, the parties entered into an Agreement for the Sale of Real Estate dated December 21, 1984 for 40 acres, more ox less, as shown on the attached plan marked Exhibit "A"; and NOW, THEREFORE, INTENDING TO BE LEGALLY BOUND, the parties hereto agree as follows: 1. The $10,000.00 deposit referred to in item #1 on the Agree- ment for Sale of Real Estate dated December 21, 1984 will be paid to the Seller for the Seller to use as part of the $14,000.00 deposit required to purchase the approximately 115-acre tract (as shown on the attached plan marked Exhibit "A") from its present owners. 2. Seller will provide Buyer with a personally signed judgment note or other documents to provide collateral security for this deposit to ensure the return of the Buyer's deposit fulfill. the contittsenGi.e? in the event Seller is unable to of the Agreement for Sale of Real Estate or this Amendment. 1• alaams;+?l??t 3. Seller agrees to permit Buyer to enter upon the property to conduct any soil tests that may be required for the installation of a septic system. 1 IT 15 FURTHER UNDERSTOOD AND AGREED that this Agreement is by Seller to Buyer's satisfac contingent upon the following items being resolved pxitioCat C ??? k mpr on or before March 29, 1985 or this agreement will be null and v9ru and all deposits returned to the Buyer: 1. Seller will enter into a written purchase agreement for the approximately 115-acre tract as shown on Exhibit ''A" and will make a $14,000.00 cash deposit at the time of signing the Agreement. 2. Seller will form a corporation to be known as King Drive Corp. for the purpose of taking title to the. property and developing all lots. 3. Seller will assign to Buyer the right to purchase the 40-acre tract from the present owners. 4. Final subdivision approval will be obtained from Silver Spring Township authorities for the 40-acre tract and approximately ten other lots as shown on the attached plan marked Exhibit "A'''. This approval must accept the "country road concept" wherein a shale-based roadway with private owner maintenance will provide the only access to all lots being subdivided. 5. Seller will provide an easement agreement to give Buyer access to the 40 acres over the existing lane on the west side of the property. Any improvements the Seller, at his sole option, elects to install will be paid by the Seller. 6. In the event Seller elects to relocate the access lane to another part of the property, it will be extended to the southern boundary of the 40-acre tract,wi.thout expense to Buyer. - 2- single 7. Buyer will provide a /permanent easement to Seller for access to any land adjacent to the 40-acre tract being purchased by Buyer that the Seller may acquire title to or obtain an option on. Such easement shall be located as Buyer and Seller shall reasonably agree so as to minimally disturb Buyer's possession and use. S. Buyer ydjbza the maintenance ` shall be a party to C agreement concerning the pr:N at_ access road to King Drive, which agreement shall provide for equal contribution to maintenance of such mad by all lot owners, including Buyer. This Agreement contains the entire understanding between the parties and supersedes any prior written or oral agreement between the parties with respect to the written subject matter. There are no representations, agreements, arrangements or understandings, oral or written, between or among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein. No change or modification of this Agreement shall be valid unless the change or modification is in writing and signed by the party intended to be bound. WITNESS: y CERTIFICATE OF SERVICE AND NOW, this IV day of February, 2004, 1 hereby certify that 1 have served a copy of the within document on the following by depositing a true and correct copy of the same in the U. S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Richard C. Angino, Esquire Joan E. Stehulak, Esquire Angino & Rovner, PC 4503 N. Front Street Harrisburg, PA 17110 ,.,, ...? n ^' ?? i:. c? ?? y.. -rl r ? ? GJ f_.,?T7 - ?1?? ?? "? `-?(_) r._a -n C ?`'_; ?., 4;; -? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-06564 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ANGINO RICHARD C ET AL VS CRANDY RONALD L R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: CRANDY RONALD L but was unable to locate Him deputized the sheriff of YORK in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On March 9th , 2004 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York Cc 48.50 .00 85.50 03/09/2004 ANGINO & ROVNER So answe R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this day of yyk4,,t? Y A. D. 1 Prothonot'a COUNTY OF YORK OFFICE OF THE SHERIFF S(R;';j?j? 28 FAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE ' PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LM t TMU 12 DO NOT DETACH AMY C01dE8 1. PLAINTIFF/S/ 2. COURT NUMBER Richard C. Anclino et al 2003-6564 civil 3. DEFENDANT/S/ 4. TYPE OF WRIT OR COMPLAINT Ronlad L. Crandy Notice and Complaint SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD. Ronald L. Crandy 8. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT. NO., CITY, BORO, TWP., STATE AND ZIP CODE) AT 309 Sharon Drive New Cumberland, PA 17070 7. INDICATE SERVICE: 0 PERSONAL D PERSON IN CHARGE )(DEPUTIZE 0-CER7. MAILa 01ST CLASS MAIL 0 POSTED ? OTHER NOW December 30 ,20 03 I, SHERIFF OF j1W COUNTY, PA, o hereby depu ' e sheriff of York COUNTY to execute' made rn ?rding to law. This deputization being made at the request and risk of the plaintiff. SHERIFF OF COUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Cuixtberland Mail return of service to Cumberland CountOyUShesitf NTY _ CUMBERLAND ADVANCE FEE PAID BY ATTORNEY NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 110. TELEPHONE NUMBER 111. DATE FILED RICHARD C. ANGINC, ESO. 4503 N. FRCNI ST. HARRISBURG PA 17110 1717-238-6791 177-23-2003 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW (This area must be completed N notice is to be mailed). CUMBERLAND COIUNTY SHERIFF'S OFFICE SPAIMULOW FOR Of OF Tim' -W Wit WWM 09LOW -UN L ft 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15. Expiration/Hearing Date oroomplaintasindicated above. Ronda M. AhrEns / RAT 112-31-2003 101-22-2004 15. HOW SERVED: PERSONAL("/ RESIDENCE ( %, POSTED( ) POE ( ) SHERIFF'S OFFICE( ) OTHER ( ) SEE REMARKS BELOW 17. 0 1 hereby certify and return a NOT FOUND because I am unable to locate the Individual, company, etc. named above. (See remarks below.) NAME AN F INDIVIOU S VEQ / LISJJ DRESS HER IF NOT SHOWN ABOVE (Relationship to Defendant) 1 19., Dab ofd 1 20. Ti7f Ies ryioe 21. ATfEMPTSI I (3 Ti mi1aa 1n I Dale TiCme p1Y9t Int. Tim Miles 1 Int. I Date Time 1Miles Int I Date Time l(Miless I Int. I Date 1 Time 1Miles Int. 22. REMARKS. evJ? ?)j (/J V/J` S1UC G VY?? q&. so 23. Advance Costs 24, sts 25. N/F 17,@. Mileage 127. Postage 28. Sub Total 1 29. Pound 30. Notary $75.00 (D/ i?pO(D/ CN?l 34. Foreign County Costs 135. Advance Costs 138. Service Costs 137. Notary Cey38 a/P41. AFFIRMED and subscribed to before me this 21 S t• 44. Signature of az. day or r1 B n . 20 -U,44 ?? Dep. sheriff r "-/NdYARr 46Signature of Notarial Seal James V. Vangreen, Notary Publio City of YorK, York County, PA My Commisslon 3° ,irws Mar. 21, 2005 50. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RE OF AUTHORIZED ISSUING AUTHORITY AND TITLE 'ounry antm - v SHERIFF/WILLIAM M 48. Signature of Foreign County Shenff TURN SIGNATURE 3qi0l 31. Surchg. 32. Td. Costs) 33. Costs Due RefunO 1 1y8 ? 4, ' ;W a ( a 139. Total Costs 140. Costs Due or Refund BWE 45. DATE jl ?s Q //A/ 47. DATE 01-21-2004 49. DATE 51. DATE RECEIVED 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriffs Office 4. BLUE - Sheriffs Office RICHARD C. ANGINO, ALICE K. ANGINO and KING DRIVE CORP. Plaintiffs V. RONALD L. CRANDY, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - IN LAW AND EQUITY NO. 2003-6564 PLAINTIFFS' REPLY TO NEW MATTER 16. No response is necessary. 17. Plaintiffs' Complaint does not claim that Exhibit A represents an agreement between the parties. Paragraph 12 of Plaintiffs' Complaint states clearly that Exhibit A was a proposed agreement submitted to Defendant for his consideration to accommodate his concerns. The statute of frauds, therefore, is not an issue because Plaintiffs do not contend that there ever was an agreement between the parties. 18. See, 17. 19. Admitted. 20. Admitted. See, 17. 21. Admitted. 22. Defendant's averment constitutes a conclusion of law to which no response is necessary. In any event, Plaintiffs specifically deny that nuisance or spite signs like fences which interfere with potential contractual relationships are not protected by the constitution. 23. It is admitted that Plaintiffs did not aver any contractual obligation upon Defendant to pay his fair share of the approximate $300,000 expended by Plaintiffs for the right- of-way road. The law is clear, however, as to the duties of an owner who benefits from a right- of-way through another individual's land to pay a proportionate; share of the costs of constructing and maintaining such a road. It is denied that there was any original understanding between Plaintiffs and Defendant that Defendant would not have to contribute toward the construction and maintenance costs of the road. It is also specifically denied that Defendant relinquished any five acres in the original purchase agreement from his tract to Plaintiffs in order that Plaintiffs would bear the entire construction cost of said right-of-way and would pave a 10-feet wide section of the right-of-way from Defendant's property to King Drive. Specific proof is required. In addition, as noted by Defendant, the statute of frauds would control such an agreement, and such an agreement would have to be in writing, and Defendant is required to produce such a writing. 24. Again, Defendant's averment constitutes a conclusion of law to which no affirmative response is necessary. In any event, Plaintiffs specifically deny Defendant's conclusion that Plaintiffs are estopped from claiming dollars or damages for contribution to construction of the road. Again, any agreements involving land would have to be in writing, and the statute of frauds would control as specifically noted by Defendant. 25. This averment is another conclusion of law to which no affirmative response is necessary. The doctrine of laches is an equitable doctrine and would not be applicable to the factual circumstances of this case where Plaintiffs' expenses for road construction had been modest until recently. 26. No response is necessary. 27. It is specifically denied that Defendant has been damaged and/or if damaged, that the damage has been more than nominal. Specific proof is required as to Defendant's damages. 28. Plaintiffs admit that they may be responsible for Defendant's damages incurred for surveyor fees to relocate Defendant's boundaries for his property lines. 273697.1\RCA\SC 2 29. Under the American Rule, Defendant is not entitled to recover for legal fees. Date: '511 q X Respectfully submitted, ANGINO & ROVNER, P.C. and C. Angino, Esquire No. 07140 Joan L. Stehulak, Esquire I.D. No. 2'9496 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 273697.1\RCA\SC CERTIFICATE OF SERVICE I, Shirley Corman, an employee of Angino & Rovner, P.C. hereby certify that a true and correct copy of the foregoing PLAINTIFFS' REPLY TO NEW MATTER was served by United States first-class mail, postage prepaid, upon the following: Richard C. Rupp, Esquire Rupp and Meikle 355 North 21" Street Camp Hill, PA 17011 ?lr[rley Corman Dated: ' N C.-i RICHARD C. ANGINO, ALICE K. ANGINO and KING DRIVE CORP. Plaintiffs/Petitioners V. RONALD L. CRANDY, Defendant/Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - IN LAW AND EQUITY NO. 03-6564 PETITION FOR IMMEDIATE INJUNCTION 1. Plaintiffs Richard C. Angino and Alice K. Angino are husband and wife and King Drive Corp. is a corporation the stock of which is 100% owned by Richard C. Angino. Plaintiffs Richard C. and Alice K. Angino and King Drive Corp. have their residence and business address at 2040 Fishing Creek Valley Road and 4503 North Front Street, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant Ronald L. Crandy lives at 309 Sharon Drive, New Cumberland, Cumberland County, Pennsylvania. 3. In the mid 1980s, Richard C. and Alice K. Angino purchased approximately 60 acres of land currently known as "Willow Lake Subdivision" in Silver Spring Township, Cumberland County, Pennsylvania. 4. At or about the same time, Defendant Crandy purchased 35 acres of land adjoining and north of Willow Lake Subdivision. 5. Plaintiffs Richard C. and Alice K. Angino agreed to provide an easement of necessity for Ronald L. Crandy to access his 35 acres. 6. Plaintiffs Richard C, and Alice K. Angino and later King Drive Corp, expended considerable monies approximating $300,000 for the construction of a road from King Drive Road through Plaintiffs' 60 acres up to the entry lane for Defendant Crandy's 35 acres. 7. Defendant Crandy contributed no monies toward the approximately $300,000 expended by the Anginos and King Drive Corp. for the road. 8. As part of the installation of utilities, Plaintiffs' independent contractor may have inadvertently trespassed upon Defendant Crandy's 35 acres. 9. Without any communication whatsoever with Plaintiffs, Defendant Crandy installed numerous offensive retaliatory signs at the end of Plaintiffs' development and at the beginning of Crandy's 35 acres. 10. Plaintiffs apologized for any inadvertent trespass and attempted to amicably resolve any problem or concern of Defendant Crandy through their agent C. Kenney Vandenburgh. 11. Plaintiffs, through their agent C. Kenney Vandenburgh, pointed out that the numerous large offensive retaliatory signs were causing potential buyers of building lots to forego the purchase of building lots because of the objectionable nature of Defendant Crandy's signs, and one couple who had signed an agreement to "hold" a lot adjoining Crandy's property has refused to close citing the offensive signs. 12. A potential buyer of the second lot adjoining Crandy's property was intimidated by Crandy's signs and the implication of same. 13. Plaintiffs have done everything they could to attempt to accommodate Defendant Crandy, including at his suggestion the preparation of an agreement. 14. Instead of signing the agreement which included the terms and conditions he suggested or suggesting additional terms and conditions, Defendant Crandy added more and larger retaliatory, offensive signs. Picture of signs attached as Exhibit A. [EXH. B TO COMPLAINT ORIGINALLY FILED]. 15. Defendant Crandy refused to respond to telephone calls and other communications and has refused to take down his numerous large, offensive, retaliatory signs. 274616.1\RCAULS 2 16. Crandy has engaged counsel but, despite several letters and reference to the Restatement (Second) of Torts and appellate precedent, the signs persist, e.g., Plaintiff's counsel's letter of April 9, 2004. Exhibit B. 17. Defendant Crandy's signs were erected out of spite, and inhibit Plaintiff's ability to sell properties which Plaintiffs have developed for residential real estate. 18. Defendant Crandy has violated and continues to violate well established legal principles of nuisance. 19. Equity has the power to abate a nuisance. 20. Maintenance of the signs serves no useful purpose, but prevents Plaintiffs/Petitioners from of the use and enjoyment of Petitioners' real property and deprives Plaintiffs/Petitioners of their civil rights. 21. Plaintiffs have a clear legal right to the relief requested. 22. There is no adequate legal remedy. WHEREFORE, Plaintiffs/Petitioners seek an injunction requiring Defendant Crandy to immediately remove the numerous offensive signs and request an immediate hearing. Respectfully submitted, Date: 4/8/04 ANGINO & ROVNER, P.C. I.D. ,07-141 J . Stehulak, Esquire I.D. No. 29,196 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiffs 274616.]ARCAVLS 3 J • resin 'rastu rasrte9sn y t -_ 4or 1 •.? ail f r " s tl, Pos PRIVATE PROPERTY HUNTING, FISHING, TRAPPING OR ' TRESPASSING FOR ANY PURPOSE IS STRICTLY FORBIDDEN VIOLATORS WILL BE PROSECUTED Name -Address sd 9Sl?a?? Gh I " xrwnwxn}?wroneu,exnw ANGINO & ROVNER, P. C. 4503 NORTH FRONT STREET HARRISBURG, PA 17110.1708 717/2386791 FAX 717/2385610 RICHARD C. ANGINO MICHAEL E KOSIK NEILJ.ROvNER RICHARD A. SADLOCK JOSEPH M. MELILLO JAMES DECNTI MERRY S. HYMAN JOAN L. STEHULAK DAVID L. LUTZ LISA M. BENZIE WW W.ANGWO-ROVNER.COM EMAIL, RCA@ANGINO-ROVNER.COM April 9, 2004 Richard Rupp, Esquire Rupp and Meikle 355 N 21 SI St. Camp Hill, PA 17011 Re: Angino v. Ronald Crandy Dear Mr. Rupp: Everyone has heard of "spite" fences as constituting a private nuisance. I did some research specifically directed to "spite" signs. Although there are no specific cases in Pennsylvania, I did find three cases from other states: Wigwam Associates. Inc. v. McBride, 1995 WL 1146161 (Mass., Super.); McCloskv v. Martin, 56 So.2d 916 (Fla. 1952); Sundowner. Inc. v. King, 95 Idaho 367, 509 P.2d 785 (1973). Copies enclosed. Also see, §822 Restatement (Second) of Torts, Private Nuisance: Elements of Liability. I particularly call to your attention Wigwam which specifically discusses interferences with contractual relationships and with advantageous relationships. Several months ago, a couple signed an agreement to purchase one of the lots adjoining your client's property. This was before he put up his numerous large, offensive spite signs. They have refused to close because of the signs. They are now looking at another development. Another couple is interested in the other lot adjoining your client's property, but they too have indicated a concern about buying a piece of land next to a feuding neighbor. In fact, when they were out to see the property last week, they were intimidated apparently by your client and several other individuals. There are still 14 large signs. They have clearly been put up intentionally and out of spite. They bear no reasonable relationship to the small innocuous, but effective, "no trespassing" signs which we all see in everyday life. The locations of the various signs have been selective for maximum visual effect. Since my prior letters and lawsuit have produced no response from your client, I am filing a Petition for Immediate Injunction. Copy enclosed. RCA/sc Enclosures 274619.1ARCAASC Page 1 of 8 Westlaw Attached Printing Summary Report for STEHULAK,JOAN 4781957 Your Search: Date/Time of Request: Client Identifier: Database: Citation Text: Lines: Documents: Images: SPITE IS SIGN Thursday, March 25, 2004 15:54:00 Eastern ANGINO ALLCASES 1995 WL 1146161 434 1 0 (C) 2004. Copyright is not claimed as to any part of the original work prepared by a U.S. government officer or employee as part of that person's official duties. All rights reserved. No part of a Westlaw transmission may be copied, downloaded, stored in a retrieval system, further transmitted or otherwise reproduced, stored, disseminated, transferred or used, in any form or by any means, except as permitted in the Westlaw Subscriber Agreement, the Additional Terms Governing Internet Access to Westlaw or by West's prior written agreement. Each reproduction of any part of a Westlaw transmission must contain notice of West's copyright as follows: "Copy. (C) 2004 West, a Thomson business. No claim to orig. U.S. govt. works. "Registered in U.S. Patent and Trademark Office and used herein under license: KeyCite, Westlaw and WIN. WIN Natural Language is protected by U.S. Patent Nos. 5,265,065, 5,418,948 and 5,488,725. http: //print.westlaw. comldelivery.html? dest=atp&dataid=A0055 800000042490004781957... 3/25/2004 Page 2 of 8 1995 WL 1146161 (Cite as: 1995 WL 1146161 (Mass.Super.)) C Only the Westlaw citation is currently available. Superior Court of Massachusetts. WIGWAM ASSOCIATES, INC., Kenneth MCBRIDE, et al., [FNI] FNl. Karen McBride, John Chioncbio, Margo Sholtz, Kevin Mullahy, Matthew Jones, Kimberly Gentile, and the Wigwam Estates Homeowners Association. No.9201570A. Oct 13, 1995. MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' SPECIAL MOTION TO DISMISS PURSUANT TO G.L.c. 231, & 59H and MOTION FOR PARTIAL SUMMARY JUDGMENT KOTTMYER. *1 This matter is before the court on the defendants' special motion to dismiss filed pursuant to G.L.c. 231, § 59H and motion for partial summary judgment. For the reasons set forth below, both motions are DENIED and Counts Seven through Ten are DISMISSED. BACKGROUND Plaintiff Wigwam Associates, Inc. ("Wigwam") is a Massachusetts corporation engaged in building and selling new homes on a tract of land known as Wigwam Estates located between Plantation Street and Wigwam Hill Drive in Worcester. The individual defendants are owners and/or residents or former residents of the Wigwam Estates development. Defendant Wigwam Estates Homeowners Association ("the Association") is an Page 1 unincorporated association formed by the individual defendants. On May 28, 1992, Wigwam filed the present action seeking damages for alleged slander, intentional interference with contractual relations, intentional interference with advantageous relationships, violations of the state civil rights statute and conspiracy. In 1988, Wigwam, under the direction of its president, George N. Hayeck and its vice-president, George E. Hayeck, began to construct a 48-unit residential development known as Wigwam Estates on land owned by Wigwam off Plantation Street in Worcester. In order to proceed with the project, Wigwam received the consent of the Worcester Planning Board to construct an "approval not required" ("ANR") development. See G.L.c. 41, § 81P. The ANR designation meant that Wigwam was not required to file a subdivision plan with the Worcester Planning Board. As such, Wigwam was not required to construct a public way for which the City of Worcester would assume general maintenance and snow plowing responsibilities. Instead, Wigwam built a common driveway (per a Declaration of Easement) for vehicular and pedestrian traffic to and from the residences in the development. This common driveway has been the source of an ongoing dispute between the plaintiff and the defendants. The defendants contend that the plaintiffs president and vice-president assured them that Wigwam would make modification to the common driveway in order to gain City of Worcester acceptance of it as a public way. See defendant's answer and counterclaim (Count I-V). The plaintiff denies making such representations and contends that the Declaration of Easement makes it plain that Wigwam constructed the common driveway with no intention of converting it to a city street. The defendants petitioned the Worcester Planning Board to compel Wigwam to file a subdivision plan for the development. The Planning Board issued an order imposing various conditions which would have required Wigwam to make modifications to the common drive. Wigwam appealed to the Zoning Board of Appeals and eventually to the Land Court. In June, 1994, the Land Court ruled that the Copr. m West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw. com/delivery.html? dest=atp&dataid=AO05 5800000042490004781957... 3/25/2004 Page 3 of 8 1995 WL 1146161 (Cite as: 1995 WL 1146161 (Mass.Super.)) Planning Board acted beyond its power in imposing the conditions. See Wigwam Assocs., Inc. v. Ferguson, Land Court Misc. case No. 195524 (Cauchon, C.l.). (Exhibit T to Plaintiffs Opposition.) The City of Worcester conceded that the Planning Board acted beyond its power. See also Wigwam Assocs., Inc. v. City of Worcester Zoning Board of Appeals, Land Court Misc. Case No. 205424. *2 In its complaint, the plaintiff alleges that the individual plaintiffs, through the Association, have conspired to destroy the business and good reputation of the plaintiff and its principals. The plaintiff accuses the defendants of engaging in intentional behavior, including defamation and intentional interference with contractual and advantageous relationships, calculated to drive Wigwam out of business or to compel it to modify the common drive. In particular, the plaintiff alleges that the defendants continually "badmouthed" Wigwam and its principals to prospective buyers and others with whom Wigwam had contractual and business relationships, saying, among other things, that the developer was "no good," "was operating illegally," "personally threatened me" and "should be out of business." The plaintiff claims that the defendants placed "For Sale" signs in front of their homes not to advertise their actual availability for sale, but rather to put pressure on plaintiff by discouraging prospective buyers of the remaining Wigwam Hill lots. Finally, Wigwam maintains that the defendants conspired through the Association to further these goals and to violate the plaintiffs civil rights as guaranteed by G.L.c. 12, §§ 11H and Ill. The defendants assert that they formed the Association for the purpose of paying for snow plowing and general maintenance of the common driveway on which their homes were situated. A. THE SPECIAL MOTION TO DISMISS PURSUANT TO G.L.c. 231, § 59H: STANDARD OF REVIEW The defendants have moved to dismiss the complaint pursuant to G.L.c. 231, § 59H asserting that it is a so-called SLAPP suit ("strategic lawsuit against public participation"). They contend that Wigwam brought the complaint against them on account of their exercise of their right to petition the government, that their exercise of their rights was not devoid of any reasonable factual support or any arguable basis in law and they caused the plaintiff, Page 2 Wigwam, no actual injury. Each of the individual defendants asserts by way of affidavit that to the extent he or she made any critical statements about the plaintiff, the statements were made at public meetings before governmental entities or to governmental officials for the purpose of converting the private drive into a public street. The plaintiff asserts that G.L.c. 231, § 59H is inapplicable because plaintiff seeks redress for damage inflicted by statements made and acts performed by the defendants which did not involve the right to petition the government. A party may bring a special motion to dismiss in any case in which it asserts that the civil claims, counterclaims, or cross claims against it are based on its "exercise of its right of petition under the Constitution of the United States or of the Commonwealth" G.L.c. 231, § 59H (added by St.1994, c. 283, § 1). [FN21 The state defines "a party's exercise of its right of petition" as FN2. Section 2 of St.1994, c. 283, provides that G.L.c. 231, § 59H applies to all cases that had not been fully adjudicated on March 29, 1995, the effective date of the act, and that notwithstanding the provisions of St.1994, c. 283, § 1, a party was authorized to file a special motion to dismiss within sixty days of the effective date of the Act. any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government. *3 Id. The standard of review under G.L.c. 231, § 59H is unlike that employed when a party moves for entry of judgment on the pleadings Mass.R.Civ.P.12(c)), for dismissal for failure to Copr. © West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=AO05 5 800000042490004781957... 3/25/2004 Page 4 of 8 1995 WL 1146161 (Cite as: 1995 WL 1146161(Mass.Super.)) state a claim upon which relief can be granted Mass.R.Civ.P.12(b)(6)), or for summary judgment Mass.R.Civ.P.56). [FN3] When a party moves for dismissal under c. 231, § 591- the court must grant the special motion, unless the nonmoving party shows that: FN3. When the Legislature passed St.1994, c. 283, it did so over the Governor's veto. It rejected an amendment proposed by the Governor which would have entitled a party asserting that the claims against it were based on its exercise of its right of petition to file a special motion to dismiss for judgment on the pleadings, for failure to state a claim upon which relief could be granted, or for summary judgment. See Message from the Governor, 1994 House. Doc. No. 5570 at 3. (1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law; and (2) the moving party's acts caused actual injury to the responding party. Id. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Id. Although the defendants assert that Wigwam brought the suit against them because they exercised their right to petition the government, the special motion to dismiss under G.L.c. 231, § 59H is not applicable to this case. The plaintiff seeks redress for alleged statements made and actions performed outside the context of petitioning the government. Obviously, oral or written statements made before or submitted to the Worcester Planning Board, the Worcester Zoning Board of Appeals or the Land Court do fall within the protection of the statute. But the statements complained of in this case were not made before or submitted to any governmental or judicial entity. Further, they were not reasonably likely to encourage consideration or review of the issue by a public entity or to enlist public participation in an effort to effect such consideration. For example, it is alleged that each of the defendants posted "For Sale" signs in their front yards for the sole purpose of putting pressure on Page 3 Wigwam to modify the common drive by discouraging prospective home buyers from purchasing homes from Wigwam. Affidavits submitted by the plaintiff assert that defendant Kenneth McBride admitted that the posting of the "For Sale" signs was done "in spite" to harm the plaintiff. Two other homeowners state in their affidavits that Mr. McBride stated that he and other Association members would continue to try to shut down the builder "through whatever means necessary" until the builder did what they wanted done. A subcontractor states that he was warned by one of the defendants not to leave materials at the site overnight because they "would disappear." Obviously, such conduct, even if it encompassed statements directed at achieving the same goals as those sought to be achieved before a governmental entity or judicial entity, cannot be considered statements made in the course of petitioning the government as defined by § 59H or as statements "reasonably likely" to encourage such review or to enlist public participation in securing such review. Cf. "Memorandum of Decision and Order on Plaintiffs Special Motion to Dismiss Counterclaim," Thomson v. Town of Andover, Civil Action No. 93-1716 (Essex County) (July, 1995). On the contrary, the allegations, if proved, would support a finding that the defendants engaged in a form of "self-help" attempting to obtain from plaintiff through economic coercion the relief which they had unsuccessfully sought from governmental entities and, if unsuccessful in doing so, to drive the plaintiff out of business. *4 In conclusion, because the plaintiff alleges conduct which does not constitute the exercise of the right to petition as defined by G.L.c. 231, § 5911, the motion to dismiss is denied. B. THE MOTION FOR SUMMARY JUDGMENT 1. STANDARD OF REVIEW Summary Judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mass.RCiv.P. 56(c). The existence of disputed facts is consequential only if those facts have a material bearing on the disposition of the case. Norwood v. Adams-Russell Co., 401 Mass. 677, 683, 519 N.E.2d 253 (1988). A party in a civil action moving for summary judgment on a claim on which the opposing party will have the burden of Coln. © West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw. comldelivery.html? dest=atp&dataid=A0055800000042490004781957... 3/25/2004 Page 5 of 8 1995 WL 1146161 (Cite as: 1995 WL 1146161 (Mass.Super.)) proof at trial is entitled to summary judgment if it demonstrates by reference to the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). "[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment" LaLonde v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989). "If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat [the] motion for summary judgment." Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). For the purposes of the summary judgment motion, the court views the facts in the light most favorable to the nonmoving party, taking all the facts set forth in it supporting affidavits as true. G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 263, 571 N.E.2d 1363 (1991). In the present case, the plainti ff has submitted evidence from which, if proved, it could be inferred that the defendants engaged in a joint venture to force the plaintiff to modify the driveway or alternatively "to shut down" Wigwam by whatever means necessary. As joint venturers each is liable to third persons for the acts of his fellow joint venturers within the purpose and scope of the joint venture. Bell v. Mazza, 394 Mass. 176, 184, 474 N.E.2d 1111 (1985). Accordingly, in ruling in the motion for summary judgment, the alleged acts of each individual defendant will be imputed to the others. 2. COUNT ONE--DEFAMATION Plaintiff alleges that the defendants made defamatory statements about Wigwam. To assert a cause of action for slander, the oral form of defamation, the plaintiff must show: (1) a defamatory statement concerning another, *5 (2) published to a third patty; (3) with fault amounting to at least negligence on the part of the person or persons making the statement; (4) either actionability of the statement Page 4 irrespective of special damages or the existence of special damages to the plaintiff caused by the making of the statement Restatement (Second) of Torts § 558 (1979). Summary judgment will only be appropriate if the alleged statements are not actionably defamatory. [FN4] FN4. The Supreme Judicial Court favors summary judgment in defamation cases. Theron v. Rokqff, 413 Mass. 590, 591-92, 602 N.E.2d 191 (1992); King v. Globe Newspaper Co., 400 Mass. 705, 708, 512 N.E.2d 241 (1987). Statements of opinion are constitutionally protected and are not actionable defamation Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 379, 522 N.E.2d 959 (1988), citing King v. Globe Newspaper Co., 400 Mass. 705, 708, 512 N.E.2d 241 (1987). Accordingly, a "pure" opinion or one based on disclosed or assumed nondefamatory facts is not actionable "no matter how unjustified and unreasonable the opinion may be or how derogatory it is." Pritsker v. Brudnoy, 389 Mass. 776, 778, 452 N.E.2d 227 (1983) (finding statement by restaurant critic that restaurant owners were "pigs" pure opinion). However, mixed opinions are actionable "if the comment is reasonably understood as implying the assertion of the existence of undisclosed facts about the plaintiff that must be defamatory in character in order to justify the opinion" Id., quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In determining whether the alleged statements of the defendants constitute opinion or assertions of fact, the court must examine the statement in its totality in the context in which it was uttered, consider all the words used, not merely a particular phrase or sentence, give weight to cautionary terms used by the person publishing the statement and consider all of the circumstances surrounding the statement, including the medium by which the statement was disseminated and the audience to which it was published. Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 734, 500 N.E.2d 794 (1986), citing Myers v. Boston Magazine Co., 380 Mass. 336, 341, 403 N.E.2d 376 (1980). Copr. C West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw. comldelivery. html? dest=atp&dataid=A0055800000042490004781957... 3/25/2004 Page 6 of 8 1995 WL 1146161 (Cite as: 1995 WL 1146161 (Mass.Super.)) The plaintiff relies on statements allegedly made concerning Wigwam and its principals by certain of the defendants at homeowners' meetings, to potential home buyers and to at least one subcontractor. The alleged statements include "the builder personally threatened me," the development was an "illegal subdivision," [FN5] the developer was "operating illegally," the builder "could not be trusted" and never paid his bills, and the builder misrepresented the driveway and the paving. Because these statements may constitute either factual assertions or, depending on the context, mixed opinions, summary judgment is denied as to Count One. FN5. If a jury finds that these statements about file plaintiffs business prejudice plaintiff in its profession, or probably tend to do so, they may be actionable per se. Cavarnos V. Kokkinakis, 338 Mass.355,357 (1959). 3. COUNT TWO--INTERFERENCE WITH CONTRACTUAL RELATIONSHIP *6 The plaintiff asserts that the defendants interfered with contractual relationships between Wigwam and third parties. The tort of interference with contractual relations involves the undoing of a business relationship bound by contract. Chemawa Country Golf, Inc. v. Wnuk 9 Mass.App.Ct. 506, 509, 402 N.E.2d 1069 (1980). In an action for intentional interference with contractual relations, the plaintiff must prove: (1) he had a contract with a third petty; (2) the defendant knowingly induced the third parry to break that contract; (3) the defendant's interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions. G.S. Enters., Inc., supra at 272, 571 N.E.2d 1363; United Truck Leasing Corp. v. Gellman 406 Mass. 811, 812-17, 551 N.E.2d 20 (1990). The plaintiff asserts that the defendants interfered with Wigwam's contractual relations with potential home buyers, other developers and a realtor. A purchase and sale agreement signed by both parties Page 5 constitutes a binding contract. Yiakas v. Savoy, 26 Mass.App.Ct. 310, 313, 526 N.E.2d 1305 (1988). The plaintiff has demonstrated the existence of purchase and sale agreements for the sale of two homes and of contracts with a developer (Boston West Modular Homes) to purchase the entire development. The defendants deny that they purposefully acted in any way that would interfere with the plaintiffs contractual relationships. Viewing the facts in the light most favorable to the plaintiff, there is substantial evidence from which a jury could reasonably infer that the defendants acted with an improper motive. Further there is evidence that the defendants' actions caused Boston West and other prospective buyers to refuse to complete the purchase of property at Wigwam Estates. The motion for summary judgment is denied as to Count Two. 4. COUNT THREE-INTERFERENCE WITH ADVANTAGEOUS RELATIONSHIP In order to establish a claim for intentional interference with advantageous business relationships, a plaintiff must show: (1) a business relationship or contemplated contract of economic benefit; 2) the defendant's knowledge of such relationship [or contract]; (3) the defendant's intentional and malicious interference with it; [and] (4) the plaintiffs loss of advantage directly resulting from the defendant's conduct. Elm Medical Laboratory, Inc. v. RKO Gen, Inc.. 403 Mass. 779, 787, 532 N.E.2d 675 (1989), quoting Convey v. Hill, 387 Mass. 11, 19, 438 N.E.2d 811 (1982). Summary judgment is also denied as to the plaintiffs claim of intentional interference with advantageous business relations. Those Offers to Purchase with which the defendants allegedly interfered constitute "contemplated contract[s]." Viewing the facts in the light most favorable to plaintiff, there are material issues of fact which preclude summary judgment. 5. COUNTS FOUR AND FIVE: CONSPIRACY *7 In Counts Four and Five respectively, plaintiff Copr. © West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw. com/delivery. html? dest=atp&dataid=A005 5 800000042490004781957... 3/25/2004 Page 7 of 8 1995 WL 1146161 (Cite as: 1995 WL 1146161 (Mass.Super.)) claims that defendant conspired to interfere with advantageous and contractual relations. A claim for conspiracy coupled with a tort requires evidence of the underlying tort in addition to the elements of conspiracy. As set forth above, the plaintiff has adduced sufficient evidence of the commission of the underlying torts to defeat defendants' motion for summary judgment. [FN6] To establish a claim for conspiracy, the plaintiff must show "a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another." Therrien v. Hamilton, 849 F.Supp. 110, 115 (D.Mass.1994). "The plaintiff need not show that such an agreement was express; a conspiracy may be implied from the circumstances." Hunt v. Weatherbee, 626 F.Supp. 1097, 1107 (D.Mass.1986), citing Dickerson v. U.S. Steel Corp., 439 F.Supp. 55, 67 (E.D.Pa.1977). FN6. Count Seven entitled "Conspiracy to Deprive the Plaintiff of the Benefit of Contracts" simply restates the cause of action alleged in Count Four and is therefore dismissed. There is sufficient evidence from which a jury could infer that the defendants agreed to harm the plaintiff. For example, there is evidence that the defendants posted "For Sale" signs with no intention of selling their homes. Aff. of Judith Dagg 15 ("Mr. McBride told me that none of the homes were for sale, but the signs were to intimidate the builder"). Additionally, the defendants expressed a common goal "to try to shut down the builder, through whatever means necessary, until the builder does whatever they want done." AM of Anthony Olson 14. Thus, summary judgment is denied as to the claims of conspiracy set forth in Counts Four and Five. 6. COUNTS SIX: CONSPIRACY TO DEPRIVE OF CIVIL RIGHTS In Count Six, plaintiff alleges that defendants conspired to deprive it of its civil rights. In order to establish a violation of G.L.c. 12, § 111-1, the plaintiff must show that the defendants "interfered or attempted to interfere with the exercise or Page 6 employment of rights secured by the United States Constitution, or laws of the Commonwealth through threat, intimidation or coercion." Deas v. Dempsey, 403 Mass. 468, 470, 530 N.E.2d 1239 (1988). Secured rights are those "created by, arising under or dependent upon ... rather than fully protected" by the Constitution or the laws of the United States. Bell v. Mazza, 394 Mass. 176, 182, 474 N.E.2d 1111 (1985). Although the terms of G.L.c. 12, § IIH are entitled to a liberal construction, recovery under it should be limited to situations where the deprivation occurred by the defendant's "threats, intimidation or coercion." Deas v. Dempsey, 403 Mass. 468, 470, 530 N.E.2d 1239 (1988). "Threats" involve "the intentional exertion of pressure to make another fearful or apprehensive of injury or harm"; "[Intimidation involves putting in fear for the purpose of compelling or deterring conduct." Planned Parenthood League of Massachusetts, Inc. v. Blake, 417 Mass. 467, 474, 631 N.E.2d 985 (1994). "Coercion" is "the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done." Id. quoting Webster's New International Dictionary 519 (2d ed. 1959). *8 The plaintiff claims that the defendants conspired to interfere with its constitutional right to use its land. "The right to enjoy life and liberty and to acquire, possess and protect property are secured to every one under the Constitution of Massachusetts and under the Constitution of the United States. These guarantees include the right to own land and to use and improve it according to the owner's conceptions of pleasure, comfort or profit, and the exercise of liberty and the pursuit of happiness." Bell, supra at 178, 474 N.E.2d 1111; Brett v. Building Commr. of Brookline, 250 Mass. 73, 77, 145 N.E. 269 (1924) (basing claim on general right to use property); compare K Hovnanian at Taunton, Inc. v. Taunton, 37 MassApp.Ct. 639, 646-47, 642 N.E.2d 1044 (1994) (holding there is no statutory right to favorable exercise of municipal discretion for approving subdivision plan). There is sufficient evidence that the defendants agreed to threaten, intimidate or coerce the plaintiff and interfere with its property rights to defeat a motion for summary judgment. The facts of this case closely parallel those in Bell v. Mazza, where Copr. m West 2004 No Claim to Orig. U. S. Govt. Works http://print.west] aw. com/delivery. html? dest=atp&dataid=A0055 800000042490004781957... 3/25/2004 Pale 8 of 8 1995 WL 1146161 (Cite as: 1995 WL 1146161 (Mass.Super.)) the plaintiff sued the defendants under G.L.c. 12, § END OF DOCUMENT 11H for interfering with its right to use and improve its property. In that case the defendants formed an association and made threats to prevent the plaintiffs from constructing a tennis court on their property. Id. at 179, 474 N.E.2d 1111. One defendant stated "that he had 'connections' and would do 'anything,' 'any cost,' to prevent the [plaintiffs] construction of any tennis court." Id. Additionally, that same defendant threatened to sue the plaintiffs' blasting contractor and called the police and fire departments several times concerning the construction of the tennis court. Id. at 180, 474 N.E.2d 1111. The Supreme Judicial Court held that these facts were sufficient to withstand a motion to dismiss. Similarly, in this case, the plaintiff has adduced evidence described above which, if believed, would support a finding that the defendants conspired to intimidate it in connection with its use of its property. The motion for summary judgment on Count Six is denied. F. COUNTS EIGHT, NINE, and TEN Counts Eight, Nine, and Ten assert claims against Wigwam Estates Homeowners Association. "[A]n unincorporated voluntary association is not a separate entity and cannot be made a party defendant ..." McCormack v. Labor Relations Comm'n, 358 Mass. 682, 685, 266 N.E.2d 651 (1971), citing Donahue v. Kenney, 327 Mass. 409, 412, 99 N.E.2d 155 (1951). Cf. Mass.R.Civ.P. 23.2. Because Wigwam Estates Homeowners Association is an unincorporated voluntary association, all claims against it must be dismissed. ORDER *9 For the foregoing reasons, it is hereby ORDERED that: 1. Defendants' special motion to dismiss pursuant to G.L.c. 231, § 5914 is denied. 2. Defendants' motion for partial summary judgment is denied. 3. Count Seven is dismissed. 4. Counts Eight, Nine and Ten which purport to assert the claims against Wigwam Association Homeowners Association are dismissed. 1995 WL 1146161 (Mass.Super.) Copr. C West 2004 No Claim to Orig. U.S. Govt. Works Page 7 http://print.westlaw. comldelivery. html? dest=atp&dataid=AO05 5 8000000424900047 8 1 95 7... 3/25/2004 Page 1 of 4 fi VVE Westlaw Attached Printing Summary Report for STEHULAK,JOAN 4781957 Your Search: Date/Time of Request: Client Identifier: Database: Citation Text: Lines: Documents: Images: SPITE IS SIGN Thursday, March 25, 2004 16:27:00 Eastern ANGINO ALLCASES 5,6 So.2d 916 169 1 0 (C) 2004. Copyright is not claimed as to any part of the original work prepared by a U. S. government officer or employee as part of that person's official duties. All rights reserved. No part of a Westlaw transmission may be copied, downloaded, stored in a retrieval system, further transmitted or otherwise reproduced, stored, disseminated, transferred or used, in any form or by any means, except as permitted in the Westlaw Subscriber Agreement, the Additional Terms Governing Internet Access to Westlaw or by West's prior written agreement. Each reproduction of any part of a Westlaw transmission must contain notice of West's copyright as follows: "Copy. (C) 2004 West, a Thomson business. No claim to orig. U.S. govt. works. "Registered in U.S. Patent and Trademark Office and used herein under license: KeyCite, Westlaw and WIN. WIN Natural Language is protected by U.S. Patent Nos. 5,265,065, 5,418,948 and 5,488,725. http://print.wesf aw.com/defivery.html?dest=atp&dataid=A0055800000038460004781957... 3/25/2004 Page 2 of 4 56 So.2d 916 (Cite as: 56 So.2d 916) C Supreme Court of Florida, Special Division A. McCLOSKY MARTIN et al. Dec. 4, 1951. Rehearing Denied Jan, 8, 1952. Suit by Cecil L. Martin and another, trading and doing business as Midway Restaurant, against Edward McClosky for an injunction against the maintenance of a sign alleged to interfere with plaintiffs' restaurant business and a mandatory injunction seeking removal of sign so that it would not interfere with the public view of plaintiffs' restaurant and its advertising signs, and thus not cause further damage to their business. The Circuit Court, Palm Beach County, C. E. Chillingworth, J., entered a decree ordering an abatement of rent prescribed and entered judgment for amount of such abatement for the number of months passed during which sign had been in existence and ordered further abatement of rent for so long a period of time as sign remained in its present location, and defendant appealed. The Supreme Court, Dickinson, A. J., held that an adjoining property owner, maintaining a nuisance on his property so as to impair use of adjacent property owner, the maintenance of which nuisance would and did cause damage to business of adjacent property owner, would be liable for maintenance of such nuisance. Judgment affirmed. West Headnotes [1] Landlord and Tenant C=130(1) 233k130(1) Most Cited Cases In absence of express covenants to the contrary, every lease carries an implied covenant of peaceable and quiet enjoyment. [2] Adjoining Landowners C;-8 15k8 Most Cited Cases Page 1 Property owner may put his own property to any reasonable and lawful use, so long as he does not thereby deprive adjoining landowner of any right of enjoyment of his property which is recognized and protected by law, and so long as his use is not such a one as the law will pronounce a nuisance. [3] Nuisance C:-5 279k5 Most Cited Cases The reasonableness of a use to which a property owner may put his property must be determined according to the circumstances of each case. [4] Nuisance C=3(1) 279k3(1) Most Cited Cases The erection and maintenance of a large advertising sign on property is not per se a nuisance. [5] Nuisance C=9 279k9 Most Cited Cases An adjoining property owner cannot maintain a condition that may be or become a nuisance on his property which is injurious to the business or property rights of an adjacent landowner and not be answerable for maintenance of such nuisance, especially if that adjoining property owner be his landlord. [6] Nuisance C:-1 279k1 Most Cited Cases [6] Nuisance C?44 279k44 Most Cited Cases Nuisance is injury to possession and creates right of action in favor of occupant so that owner of land in possession of tenant is liable to latter for nuisance erected by owner on adjacent land which injuriously affects tenant's leasehold interest. [7] Appeal and Error 0907(4) 30k907(4) Most Cited Cases Copr. © West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=A005580000003 8460004781957... 3/25/2004 Page 3 of 4 56 So.2d 916 (Cite as: 56 So.2d 916) Upon appeal by adjoining property owner from decree entered in suit for injunction against maintenance of advertising sign on adjoining property and mandatory injunction seeking its removal so that sign would not interfere with restaurant business, where transcript of testimony was not in record, Supreme Court would assume that essential allegations of bill of complaint were proved by competent testimony. [81 Nuisance a3(1) 279k3(1) Most Cited Cases [81 Nuisance 4D-9 279k9 Most Cited Cases Where property owner, who was landlord of adjacent tenant, erected large advertising sign which interfered with tenant's restaurant business by blocking public's view of restaurant and had damaged business materially, sign constituted a nuisance and landlord was liable to tenant for damages resulting from nuisance. *917 Warren O. Windle, Fort Lauderdale, for appellant J. Luther Drew, Palm Beach, for appellees. DICKINSON, Associate Justice. The plaintiffs below, appellees here, instituted suit in the lower court against the defendants below, appellants here, alleging that they were tenants of certain property in Palm Beach County, Florida, leased to them for the purpose of operating a restaurant; that the defendants, as their landlords by reason of a subsequent lease of the whole tract of land of which plaintiffs leased portion was a part, had erected on adjoining property a certain large sign, thereby cutting off the view of the restaurant building and its advertising signs from persons using the highway; that the sign had been erected out of spite and solely for the purpose of damaging their business and had actually damaged their business materially. They sought an injunction against the maintenance of this sign and a mandatory injunction seeking its removal so that it would not interfere with the public view of the plaintiffs' restaurant and its advertising signs, and thus not cause further damage to their business. Page 2 The defendants filed an answer denying in substance all of the material allegations of plaintiffs' Complaint The lower court took testimony in the case and entered a final decree wherein he found from the evidence that the large sign erected by the defendants had caused substantial damage to the restaurant business conducted by the plaintiffs, but he also found that it would be inequitable to require the sign to be destroyed or removed. In lieu of this relief, he ordered an abatement of the rent prescribed and entered judgment for the amount of such abatement for the number of months past during which the sign had been in existence and ordered a further abatement of rent for so long a period of time as the sign remained in its present location. Appellants appealed to this Court relying completely and solely, as they say, upon a question of law and that is, whether or not an adjoining property owner may use his property in any way he sees fit, regardless of whether he be a landlord of the tenant of the adjoining properly or not, and regardless of whether such use may be or become a nuisance to the adjoining owner or not, in other words, whether or not one property owner had a right of *918 view to a highway over an adjoining property- [l1 Absent any inconsistent express covenants to the contrary, every lease carries an implied covenant of peaceable and quiet enjoyment See Hankins v. Smith, 103 Fla 892, 138 So. 494. The theory upon which this case apparently was brought in the lower court and upon which the Chancellor entered his decree was that an adjoining property owner, maintaining a nuisance on his property so as to impair the use of the adjoining property owner, the maintenance of which nuisance would and did cause damage to the business or freehold of the adjoining property owner, would be held answerable in damages for the maintenance of such nuisance. [2][3] As we held in Reaver v. Martin Theatres of Florida, Inc., Fla, 52 So.2d 682, 683: 'it is well settled that a property owner may put his own property to any reasonable and lawful use, so long as he does not thereby deprive the adjoining landowner of any right of enjoyment of his property which is recognized and protected by law, and so long as his use is not such a one as the law will Copr. C West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw.com/delivery.html?dest=atp&dataid=A005580000003 8460004781957... 3/25/2004 Page 4 of 4 56 So.2d 916 (Cite as: 56 So.2d 916) pronounce a nuisance. * * * The 'reasonableness' 56 So.2d 916 of such use must be determined according to the circumstances of each case, and in accordance with END OF DOCUMENT established legal and equitable principles'. [4] The erection and maintenance of a large advertising sign is not per se a nuisance, but under certain circumstances it may become one, and could well be one when it seriously affects the rights and business of the adjoining property owner, it having been erected for that purpose. [5] An adjoining property owner cannot maintain a condition that may be or become a nuisance on his property which is injurious to the business or property rights of an adjacent landowner and not be answerable in damages for the maintenance of such nuisance, especially if that adjoining property owner be his landlord. [6] A nuisance is an injury to the possession and creates a right of action in favor of the occupant so that the owner of the land in possession of his tenant is liable to the latter for a nuisance erected by the owner on adjacent land which injuriously affects the tenant's leasehold interest. See Thompson on Real Property, Permanent Edition, VOL 4, Section 1577, page 60. There is no question here presented of an easement for light and air or even of view over adjacent premises. [7][8] Thus, whether or not the erection and maintenance of this large advertising sign was a nuisance in this case was a question of law and fact. The Chancellor found that such did in effect constitute a nuisance and did materially affect the plaintiffs' business. Not having been favored with a transcript of the testimony taken in the lower court, we must of necessity assume that the essential allegations of the Bill of Complaint were proved by competent testimony. The Chancellor having resolved the facts in favor of the plaintiffs below, the appellees here, and having properly applied the law to the facts, the judgment of the lower court is affirmed. TERRELL, Acting Chief Justice, and ROBERTS and MATHEWS, JJ., concur. Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works Page 3 http://print.westlaw. comldelivery.html? dest=atp&dataid=AO055 80000003 8460004781957... 3/25/2004 Page 1 of 4 P Westlaw Attached Printing Summary Report for STEHULAK,JOAN 4781957 Your Search: Date/Time of Request: Client Identifier: Database: Citation Text: Lines: Documents: Images: SPITE /S SIGN' Thursday, March 25, 2004 16:15:00 Eastern ANGINO ALLCASES 509 P.2d 785 185 1 0 (C) 2004. Copyright is not claimed as to any part of the original work prepared by a U.S. government officer or employee as part of that person's official duties. All rights reserved. No part of a Westlaw transmission may be copied, downloaded, stored in a retrieval system, further transmitted or otherwise reproduced, stored, disseminated, transferred or used, in any form or by any means, except as permitted in the Westlaw Subscriber Agreement, the Additional Terms Governing Internet Access to Westlaw or by West's prior written agreement. Each reproduction of any part of a Westlaw transmission must contain notice of West's copyright as follows: "Copr. (C) 2004 West, a Thomson business. No claim to orig. U.S. govt. works. "Registered in U.S. Patent and Trademark Office and used herein under license: KeyCite, Westlaw and WIN. WIN Natural Language is protected by U.S. Patent Nos. 5,265,065, 5,418,948 and 5,488,725. http://print.westlaw. conLIdelivery.html? dest=atp& dataid=A0055800000010470004781957... 3/25/2004 Page 2 of 4 'AbsUaw. 509 P.2d 785 (Cite as: 95 Idaho 367,509 P.ld 785) F> Supreme Court of Idaho. SUNDOWNER, INC., an Idaho corporation, Plaintiff-Respondent, V. James C. KING and Agnes C. King, husband and wife, Defendants-Appellants. No. 11043. May 10, 1973. The District Court, Canyon County, Robert B. Dunlap, J., ordered partially abated a sign which the court found to be a spite fence and owner appealed. The Supreme Court, Shepard, J., held that evidence sustained trial court's finding that sign which was 85 feet in length and 18 feet in height, obscured approximately 80% of adjacent building and restricted passage of light and air to adjacent building was 'spite fence' erected for sole purpose of annoying neighbor. Affirmed. West Headnotes 111 Nuisance a33 279k33 Most Cited Cases Evidence sustained trial court's finding that sign which was 85 feet in length and 18 feet in height, obscured approximately 80% of adjacent building and restricted passage of light and air to adjacent building was "spite fence" erected for sole purpose of annoying neighbor. 121 Appeal and Error X1071.6 30kI071.6 Most Cited Cases Absence of findings of fact may be disregarded by appellate court if record is so clear that they are not necessary for complete understanding of issues. 131 Adjoining Landowners x10(3) 15k10(3) Most Cited Cases Page 1 No property owner has right to erect and maintain an otherwise useless structure for sole purpose of injuring his neighbor. 14] Nuisance a35 279k35 Most Cited Cases Trial court did not err in partially abating and enjoining sign which was erected as spite fence. White v. Bemhart, 41 Idaho 665, 241 P. 367 disapproved of to extent it is inconsistent. *367 **785 Donald E. Downen, Gigray, Downen & Morgan, Caldwell, for defendants-appellants. Robert P. Tunnicliff of Miller, Weston & Tunnicliff, Caldwell, for plaintiff- respondent. SHEPARD, Justice. This is an appeal from a judgment ordering partial abatement of a spite fence erected between two adjoining motels in Caldwell, Idaho. This action is evidently an outgrowth of a continuing dispute between the parties resulting from the 1966 sale of a motel. See: King v. H. J. McNeel, Inc., 94 Idaho 444, 489 P.2d 1324 (1971). In 1966 Robert Bushnell sold a motel to defendants-appellants King. Bushnell then built another motel, the Desert hm, on property immediately adjoining that sold to the Kings. The Kings thereafter brought an action against Bushnell (H. J. McNeel, Inc.) based on alleged misrepresentations by Bushnell in the 1966 sale of the motel property. See: King v. H. J. McNeel, Inc., supra. In 1968 the Kings built a large structure, variously described as a fence or sign, some 16 inches from the boundary line between the King and Bushnell properties. The structure is 85 ft. in length and 18 ft. in height. It is raised 2 ft off the ground and is 2 ft. from the Desert hm building. It parallels the entire northwest side of the Desert Inn building, obscures approximately 80% of the Copr. 0 West 2004 No Claim to Orig. U. S. Govt. Works http://print.westlaw. comldelivery. html? dest=atp& dataid=A0055800000010470004781957... 3/25/2004 Page 3 of 4 509 P.2d 785 (Cite as: 95 Idaho 367,509 P.2d 785) Desert Inn building and restricts the passage of light and air to its moms. Bushnell brought the instant action seeking damages and injunctive relief compelling the removal of the structure. Following trial to the court, the district court found that the structure was erected out of spite and that it was erected in violation of a municipal ordinance. The trial court *368 **786 ordered the structure reduced to a maximum height of 6 ft. The Kings appeal from the judgment entered against them and claim that the trial court erred in many of its findings of fact and its applications of law. The Kings assert the trial court erred in finding that the 'sign' was in fact a fence; that the structure had little or no value for advertising purposes; that the structure cuts out light and air from the rooms of the Desert Inn Motel; that the structure has caused damage by way of diminution of the value of the Desert Inn Motel property, that the erection of the structure was motivated by ill-feeling and spite; that the structure was erected to establish a dividing line; and that the trial court erred in failing to find the structure was necessary to distinguish between the two adjoining motels. [1] We have examined the record at length and conclude that the findings of the trial court are supported by substantial although conflicting evidence. The trial court had before it both still and moving pictures of the various buildings. The record contains testimony that the structure is the largest 'sign' then existing in Oregon, Northern Nevada and Idaho. An advertising expert testified that the structure, because of its location and type, had no value for advertising and that its cost, i. e., $6,300, would not be justified for advertising purposes. Findings of fact will not be set aside on appeal unless they are clearly erroneous, and when they are supported by substantial though conflicting evidence they will not be disturbed on appeal. Hisaw v. Bishop, 95 Idaho 145, 504 P.2d 818 (1972); I.R.C.P. 52(a). [2] The absence of findings of fact may be disregarded by an appellate court if the record is so clear that they are not necessary for a complete understanding of the issues. Call v. Marler, 89 Idaho 120, 403 P.2d 588 (1965). The pivotal and dispositive issue in this matter is Page 2 whether the trial court erred in requiring partial abatement of the structure on the ground that it was a spite fence. Under the so-called English rule, followed by most 19th century American courts, the erection and maintenance of a spite fence was not an actionable wrong. These older cases were founded on the premise that a property owner has an absolute right to use his property in any manner he desires. See: 5 Powell on Real Property, 696, p. 276 (1949 ed. rev'd 1968); Letts v. Kessler, 54 Ohio St. 73, 42 N.E. 765 (1896). Under the modem American rule, however, one may not erect a structure for the sole purpose of annoying his neighbor. Many courts hold that a spite fence which serves no useful purpose may give rise to an action for both injunctive relief and damages. See: 5 Powell, supra, 696, p. 277; IA Thompson on Real Property, s 239 (1964 ed.). Many courts following the above rule further characterize a spite fence as a nuisance. See: Hornsby v. Smith, 191 Ga. 491, 13 S.E.2d 20 (1941) ; Barger v. Barringer, 151 N.C. 433, 66 S.E. 439 (1909); Annotation 133 A.L.R. 691. One of the first cases rejecting the older English view and announcing the new American rule on spite fences is Burke v. Smith, 69 Mich. 380, 37 N.W. 838 (1888). Subsequently, many American jurisdictions have adopted and followed Burke so that it is clearly the prevailing modem view. See: Powell, supra, 696 at p. 279; Flaherty v. Moran, 81 Mich. 52, 45 N.W. 381 (1890); Barger v. Barringer, supra; Norton v. Randolph, 176 Ala 381, 58 So. 283 (1912); Bush v. Mockett, 95 Neb. 552, 145 N.W. 1001 (1914); Hibbard v. Halliday, 58 Okla. 244, 158 P. 1158 (1916); Parker v. Harvey, 164 So. 507 (LaApp.1935); Hornsby v. Smith, supra; Brittingham v. Robertson, 280 A.2d 741 (Del.Ch.1971). Also see the opinion of Mr. Justice Holmes in Rideout v. Knox, 148 Mass. 368, 19 N.E. 390 (1889). In Burke a property owner built two 11 ft. fences blocking the light and air to his neighbors' windows. The fences served no useful purpose to their owner and were erected solely because of his malice *369 **787 toward his neighbor. Justice Morse applied the maxim sic utere tun ut alienum non laedas, and concluded: But it must be remembered that no man has a legal right to make a malicious use of his property, not for any benefit or advantage to Copr. © West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw. comldelivery.html?dest=atp&dataid=A0055800000010470004781957... 3/25/2004 Page 4 of 4 509 P.2d 785 (Cite as: 95 Idaho 367,509 P.2d 785) himself, but for the avowed purpose of damaging his neighbor. To hold otherwise would make the law a convenient engine, in cases like the present, to injure and destroy the peace and comfort, and to damage the properly, of one's neighbor for no other than a wicked purpose, which in itself is, or ought to be, unlawful. The right to do this cannot, in an enlightened country, exist, either in the use of property, or in any way or manner. There is no doubt in my mind that these uncouth screens or 'obscurers' as they are named in the record, are a nuisance, and were erected without right, and for a malicious purpose. What right has the defendant, in the light of the just and beneficent principles of equity, to shut out God's free air and sunlight from the windows of his neighbor, not for any benefit or advantage to himself, or profit to his land, but simply to gratify his own wicked malice against his neighbor? None whatever. The wanton infliction of damage can never be a right. It is a wrong, and a violation of right, and is not without remedy. The right to breath the air, and to enjoy the sunshine, is a natural one, and no man can pollute the atmosphere, or shut out the light of heaven, for no better reason than that the situation of his property is such that he is given the opportunity of so doing, and wishes to gratify his spite and malice towards his neighbor.' 37 N.W. at 842. [3][4] We agree both with the philosophy expressed in the Burke opinion and with that of other jurisdictions following what we feel is the better- reasoned approach. We hold that no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor. The trial court found on the basis of substantial evidence that the structure served no useful purpose to its owners and was erected because of the Kings' ill will and emnity toward their neighboring competitor. We therefore hold that the trial court did not err in partially abating and enjoining the 'sign' structure as a spite fence. Our decision today is not entirely in harmony with White v. Bemhart, 41 Idaho 665, 241 P. 367 (1925) . White held that an owner could not be enjoined from maintaining a dilapidated house as a nuisance, even though the house diminished the value of neighboring property. White is clearly distinguishable from the case at bar. Rather than a fence, it involved a dwelling house which was not Page 3 maliciously erected. The rule announced herein is applicable only to structures which serve no useful purpose and are erected for the sole purpose of injuring adjoining property owners. There is dictum in White which suggests that a structure may only be enjoined when it is a nuisance per se. Such language is inconsistent with our decision today and it is hereby disapproved. Appellants King assign error to findings and conclusions of the trial court relating to the applicability and interpretation of Caldwell Zoning Ordinance No. 1085. Our disposition of this appeal makes it unnecessary to consider those issues. The judgment of the trial court is affirmed. Costs to respondent. DONALDSON, C. J., McQUADE and McFADDEN, JJ., and HAGAN, District Judge, concur. 509 P.2d 785, 95 Idaho 367 END OF DOCUMENT Copr. m West 2004 No Claim to Orig. U.S. Govt. Works http://print.westlaw. comldelivery.html? dest=atp&dataid=A0055 800000010470004781957... 3/25/2004 § 821F TORTS SECOND Ch. 40 may be required to establish the defendant's intent to invade the plaintiff's interests or his negligence regarding those interests. (See § 822). So also, the duration or frequency of the invasion is a factor to be considered in determining the gravity of the harm in comparison with the utility of the conduct of the defend- ant. (See §§ 826-531). Finally, the suit frequently is one for injunction against the continuance of the nuisance, and some con- tinuance or recurrence is normally required as a basis for the injunction. The decisions do not, however, support a categoric require- ment of continuance or recurrence in all cases as an established rule of law. If the defendant's interference with the public right or with the use and enjoyment of land causes significant harm and his conduct is otherwise sufficient to subject him to liability for a nuisance, liability will result, however brief in duration the interference or the harm may be. Thus when a magazine of explosives, which has caused no harm, explodes and shakes the plaintiff's adjoining building to pieces, liability may be based on the ground of a private nuisance; and the same is true when the defendant, spraying his land with insecticide for five minutes, ruins the plaintiff's adjoining crops. So likewise, a public nui- sance may consist of a single unlawful prize fight or indecent exposure or a two-minute obstruction of the public highway that causes particular harm such as personal injury to the plaintiff. TOPIC 2. PRIVATE NUISANCE: ELEMENTS OF LIABILITY § 822. General Rule One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless con- duct, or for abnormally dangerous conditions or activi- ties. Comment: a. Types of conduct. Nuisance, either public or private, is a field, or rather two distinct fields, of tort liability. It is not a See Appendix for Reporter's Notes, Court Citations, and Cross References 108 Ch. 40 Ch. 40 NUISANCE § 822 evade the single type of tortious conduct. The feature that gives unity interests. to either public or private nuisance is the interest invaded, name- invasion ly either the public right or the private interest in the use and tcy of the enjoyment of land. (See §§ 821B and 821D). These interests e defend- may be invaded by any one of the types of conduct that serve one for in general as bases for all tort liability. ome con- The conduct that creates liability for public nuisance was de- for the I termined in the first instance by the criminal law. In general, because of the traditional use of the one word "nuisance" to in- require- clude both the public and the private invasion, the criminal law :ablished has tended to follow the rule stated in this Section, although nu- We right merous special statutes have led to departures from it. Subject nt harm to the exceptions created by these special statutes, which may be liability regarded as a legislative declaration of unreasonableness, the tort duration law of public nuisance is consistent with this Section. (See lagazine § 821B). akes the Private nuisance is solely a matter of tort liability. The in- cased on terest in the private use and enjoyment of land may be invaded 'hen the by more than one type of conduct. The invasion may be inten- ninutes, tional and unreasonable. It may be unintentional but caused ilic nui- by negligent or reckless conduct; or it may result from an ab- ndecent normally dangerous activity for which there is strict liability. 'ay that On any of these bases the defendant may be liable. On the other ntiff. hand, the invasion may be intentional but reasonable; or it may be entirely accidental and not fall within any of the categories mentioned above. In these cases there is no liability. b. Failure to recognize that private nuisance has reference to the interest invaded and not to the type of conduct that sub- jects the actor to liability has led to confusion. Thus, in re- spect to an interference with the use and enjoyment of land, at- tut tempts are made to distinguish between private nuisance and of negligence, overlooking the fact that private nuisance has refer- of i ence to the interest invaded and negligence to the conduct that subjects the actor to liability for the invasion. Similar distinc- tions are attempted between private nuisance and abnormally ie dangerous activities for the same reason. a This confusion is mainly due to a failure to notice in respect i- to private nuisance the change that has occurred in the basis of tort liability. In early tort law the rule of strict liability prevailed. An actor was liable for the harm caused by his acts whether that harm was done intentionally, negligently or acci- ate, is dentally. In course of time the law came to take into considera- not a i tion not only the harm inflicted but also the type of conduct that noes 1 see Appendix for Reporter's Notes, Court Citations, and Croce References 4 Restatement of TorLt 2d-5 109 § 822 TORTS SECOND Ch. 40 caused it, in determining liability. This change came later in the law of private nuisance than in other fields. Private nui- sance was remediable by an action on the case irrespective of the type of conduct involved. Thus the form of action did not call attention to the change from strict liability to liability based on conduct. But the change has occurred, and an actor is no longer liable for accidental interferences with the use and enjoyment of land but only for such interferences as are intentional and unrea- sonable or result from negligent, reckless or abnormally danger- ous conduct. c. Liability for an invasion of interests in the use and enjoy- ment of land now depends upon the presence of some type of tor- tious conduct. Most invasions are intentional, and, with regard to the interest invaded, they are called private nuisances. These invasions have no name derived from the type of conduct in- volved. This circumstance naturally led to thinking of private nuisance as itself a type of liability-forming conduct and to con- trasting it with negligence. But as has been said, a negligent interference with the use and enjoyment of land is private nui- sance in respect to the interest invaded and negligence in re- spect to the type of conduct that causes the invasion. Many in- terests other than those in the use and enjoyment of land may be invaded by negligent, reckless or abnormally dangerous con- duct, and it is only when an interest in the use and enjoyment of land is invaded that an action for private nuisance and an action based on the type of conduct involved are actions for the same cause, and are not to be distinguished but identified. An invasion of a person's interest in the private use and enjoy- ment of land by any type of liability-forming conduct is private nuisance. The invasion that subjects a person to liability may be either intentional or unintentional. A person is subject to liability for an intentional invasion when his conduct is unrea- sonable under the circumstances of the particular case, and he is subject to liability for an unintentional invasion when his con- duct is negligent, reckless or abnormally dangerous. These are the types of conduct that are stated in this Chapter as subject- ing a person to liability for invasions of interests in the private use and enjoyment of land. d. Action for damages distinguished from suit for injunction. A potent cause of confusion as to the meaning and scope of pri- vate nuisance lies in the failure to distinguish the action at law from the suit for injunction in equity. Cases in equity are cited See Appendix for Reporter's Notes, Court Citations, and Cross References 110 Ch. 40 ater in to nui- of the lot call ised on longer nent of unrea- langer- enjoy- of tor- regard These uct in- .)rivate to con- gligent to nui- in re- my in- d may is con- ient of action same enjoy- )rivate y may ect to unrea- md he is con- se are ibject- rivate action. * pri- * law cited Ines Ch. 40 NUISANCE § 822 as precedents in actions at law without regard to their dif- ferences. In respect to the terms used, equity has not nicely observed the distinctions between the types of torts that were observed in cases at law under common law pleading. Equity looks at the fact situation, and if the case appears to be one for an injunc- tion, that relief is given without much regard to the legal cate- gories of tort liability. Thus it is unimportant for the purpose of injunction whether the conduct involved is a continuing trespass or a nuisance, and in granting the injunction it may be indif- ferently classified. Courts of equity have enjoined continuing intrusions on plaintiff's land as nuisances when the intrusions were clearly trespasses at law. This disregard of the legal clas- sification adds to the confusion as to the meaning and scope of private nuisance, when the cases are used as precedents in an action at law without regard to the situation in the particular case. Furthermore, considerations enter into the determination of the right to an injunction that are inapplicable or have less weight in determining the right to damages. An injunction may be obtained in a proper case against a threatened private nui- sance, but an action cannot be maintained at law unless harm already has been suffered. (See § 821C for a similar distinc- tion regarding a public nuisance). Even when there is present harm, it is one thing to say that a defendant should pay damages for the harm his factory is causing but it is a different thing to say that he must close his factory' if the harm cannot be stopped. For the purpose of determining liability for damages for private nuisance, an invasion may be regarded as unrea- sonable even though the utility of the conduct is great and the amount of harm is relatively small. (See § 826, Comment f). But for the purpose of determining whether the conduct produc- ing the invasion should be enjoined, additional factors must be considered. It may be reasonable to continue an important ac- tivity if payment is made for the harm it is causing but unrea- sonable to initiate or continue it without paying. Thus denial of relief by way of injunction is not always a prec- edent for denial of relief by way of damages. Consequently, lia- bility for damages should be treated independently, and this Chapter is primarily concerned with damages. Injunctions are the subject of Chapter 48, but some aspects of injunctions against nuisance are given treatment in this Chapter. Sea Appendix for Reporter's Notes, Coart Citations, and Cross References 111 § 822 TORTS SECOND Ch. 40 e. Legal cause. "Legal cause" is that cause-effect relation between act or omission and consequence that is necessary in law before liability for the consequence can be imposed on the actor. The principles and problems involved in determining when conduct is the legal cause of harm are dealt with at length in the division of this Restatement dealing with liability for negligent conduct (§§ 430-453), and in the division dealing with liability for intentional harms (§ § 279-280) and are not re- stated in this Chapter. f. Conduct. On the type of conduct necessary to liability under the rule stated in this Section, see § 824. Comment on Clause (a): g. Intentional invasions-unreasonableness. Intentional in- vasions are defined in § 825. The rules for determining when an intentional invasion is unreasonable are stated in §§ 826-831. The special application of these rules to the case in which the defendant's conduct was solely for the purpose of causing the in- vasion is found in § 829. Not every intentional and significant invasion of a person's interest in the use and enjoyment of land is actionable, even when he is the owner of the land in fee simple absolute and the conduct of the defendant is the sole and direct cause of the invasion. Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practical- ly all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together. The very existence of organized society depends upon the principle of "give and take, live and let live," and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person's conduct has some detrimental effect on an- other. Liability for damages is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation. (See § 829A). In respect to unintentional invasions of another's interests, certain broad general principles of liability have been developed. These principles are embodied in the rules governing liability for negligent, reckless and abnormally dangerous con- duct and apply to unintentional invasions of interests in the use See Appendix for Reporter's Rates, Court Citations, and Cross Refereaoes 112 Ch. 40 elation ary in on the mining length ity for sealing not re- iability nal in- -hen an ?6-831. ich the the in- person's n when :onduct vasion. ninities actical- iterfere erence, noes to ial in a )yance, amount istence ve and Des not :ase in on an- which 2quired isation. iother's re been ierning us con- the use ?rences Ch. 40 NUISANCE § 822 and enjoyment of land as well as to other interests. In respect to intentional invasions of interests, however, there are no broad general principles of liability applicable to different types of in- terests. In respect to certain types of interests, such as those in bodily security and in the exclusive possession of land, the law has developed strict rules of liability for intentional invasions, qualified by specific privileges. In respect to interests in the use and enjoyment of land, however, the law has developed a broader, more indefinite and more comprehensive, rule of liability for in- tentional invasions. This rule is expressed in terms of unreason- ableness and, as stated in this Section, requires that an intention- al invasion be unreasonable before one is liable for causing it. Comment on Clause (b): h. Otherwise actionable. The term "otherwise actionable" is used to indicate that in addition to the requirements listed earlier in this Section, the other elements of a cause of action for harm caused by reckless, negligent or abnormally dangerous con- duct, stated in other parts of this Restatement, must be present in order to establish liability when the invasion of a person's in- terest in the use and enjoyment of land is unintentional. i. Negligence and recklessness. Interests in the use and en- joyment of land, like interests in bodily security and in the ex- clusive possession of land, are accorded legal protection against unintentional invasions. But like those interests they are not protected against all invasions. There is no general rule of law that one acts at his peril in respect to interferences with an- other's use or enjoyment of his land, and therefore when the interferences are purely accidental the actor is not liable for causing them. It is only when unintentional invasions are caused by another's conduct that is negligent, reckless or abnormally dangerous that the law subjects the actor to liability. The rules determining when conduct is negligent are stated in § § 281-328D. The rules determining when conduct is reckless are stated in § 500. The rules for determining when conduct is abnormally dangerous are stated in § § 519, 520. Although the rules for determining negligence and recklessness are the same in respect to invasions of interests in the use and enjoyment of land as they are in respect to invasions of other interests, the fact that the actor's conduct involves a risk of harm through invasion of the interest in the use and enjoyment of land rather than through invasion of some other legally pro- tected interest is often of importance. In order that the actor's conduct may be negligent or reckless, it must involve an unrea- See 6ppeadia for Reporter's Rotes, Court Citations, and Cross 113 822 TORTS SECOND Ch. 40 sonable risk of harm. (See § § 282, 500). In determining the un- reasonable character of a realizable risk, the value that the law attaches to the interest imperiled is an important factor: (See § 293). Thus the actor's conduct may have sufficient utility (§ 292) to outweigh a certain quantum of risk to another's use and enjoyment of land although it might not have sufficient utility to outweigh a similar quantum of risk to another's bodily security. j. Abnormally dangerous conditions and activities. The last basis for liability for a private nuisance is the defendant's ab- normally dangerous activity, enterprise or maintained condi- tion, under the rules stated in Chapters 20 and 21. Thus a dog known by the owner to be vicious may create a private nuisance when it interferes with the use or enjoyment of the land next door, and the owner may be subject to strict liability because of his knowledge of the dog's propensities. So likewise, blasting activities or the storage of a large quantity of explosives in an inappropriate place may create a private nuisance because of the resulting interference with the use and enjoyment of land in the vicinity. Even in jurisdictions that refuse to accept by name the prin- ciple in the case of Rylands v. Fletcher, (1868) L.R. 3 H.L. 330, and have rejected any general rule of strict liability for ab- normally dangerous conditions or activities, the strict liability is commonly recognized and applied under the name of nuisance when it is found that there is an interference with the use and enjoyment of land or even with the rights of the general public. k. Unintentional invasions-unreasonableness. As set forth in Clause (a), in order to give rise to a cause of action for private nuisance, an intentional invasion of the interest in the private use and enjoyment of land must be unreasonable. This requirement has an analogue in Clause (b), regarding unintentional invasions., The standards for negligent or reckless conduct, as stated in § § 291-293 and 500, involve a balancing process very similar to the test stated in §§ 826 to 830 for determining whether an in- tentional invasion is unreasonable-that of balancing the gravity of the harm against the utility of the conduct. One difference in language should be noted. The Sections on intentional harm re- fer to the magnitude of the risk, rather than only the gravity of the harm. In unintentional invasions, it is the risk of harm that makes the conduct unreasonable. The risk is a product of the likelihood of injury multiplied by the prospective extent of the harm. When the harm is intended, on the other hand, it is See Appendix for Reporters Notes, Court Citations, and Cross References 114 Ch. 40 i Ch. 40 NUISANCE § 823 the un- I necessary to look only at the gravity, or extent, of the harm the law actually suffered. ' (See utility Thus the test for negligence includes the concept of the gravity of the harm in the broader concept of the magnitude of the risk Ws use fficient (see § 293, especially Clauses (c) and (d) ), and for conduct to be 3 bodily found negligent and therefore to constitute a private nuisance it must involve an unreasonable risk of an unreasonable invasion of another's interest in the use and enjoyment of land. Reckless 'he last conduct is subject to a similar analysis. it's ab- It is also important to remember that for negligent or reck- condi- less conduct to be actionable as a private nuisance, the risk in- s a dog volved must be risk of the invasion of an interest in the use and uisance id next enjoyment of land. Conduct that is negligent or reckless because ause of it creates an unreasonable risk of some other kind of harm may )lasting not be determinative of the liability involved in this Section. (Compare § 281, Comments c to f). s in an fuse of An abnormally dangerous activity is not treated as unrea- A land sonable conduct in the same sense that negligent or reckless conduct is; but the process of balancing the conflicting factors to determine liability as indicated in §§ 519 and 520, is similar. e prin- L. 330, An abnormally dangerous enterprise is required to pay its way For ab by compensating for the harm it causes, because of its special, iability abnormal and dangerous character. No particular purpose is served by determining whether the conduct should be character- and ise ized as unreasonable, even though a decision to that effect could p public. be made by defining the conduct to include both the activity and the failure to pay for the harm it causes. Compare the simi- t forth larity to intentional invasions, where it is sometimes held to be private reasonable to carry on a socially useful enterprise if a payment ate use is made for the harm it causes but unreasonable to continue it rement without paying. (See § 826). anions.- tted In any event, for the abnormally dangerous activity to give to War to Fila rise to an action for private nuisance the harm must have come an i within the scope of the risk that made the activity abnormally ;ravity dangerous. (See § 519(2)). ance in in re- vity of I § 823• Persons Who Can Maintain an Action to that [The Section is omitted. The matter is now covered by of the § 821E.] of the See Appendix: for Reporter's Notes, Cocrt Citations, and Cross References I, it is ones 115 ANGINO & R, VNER, P. C. 4503 NORTH FRONT STREET HARRISBURG, PA 171101708 717/2386791 FAX 717/238-5610 RICHARD C. ANGINo NEIL]. ROVNER JOSEPH M. MELILLO TERRY S. HYMAN DAVID L. LUTZ MICHAEL 1? KOS1K RICHARD A. SADLOCK JAMES DEC1N I JOAN L. STEHULAK LISA M. BENZIE W W W.ANGINO-ROVNER.COM EMAIL: RCA@ANGINOROVNER.COM February 27, 2004 VIA FAX - 730-0214 Richard Rupp, Esquire Rupp and Meikle 355 N 21 n St. Camp Hill, PA 17011 Re: Angino v. Ronald Crandy Dear Mr. Rupp: You had requested, and I agreed, to an extension of time to file an Answer on this case on the basis that your client would remove all of the no trespassing signs Ken Vandenburgh was out to the site yesterday, and there are still seven signs prominently displayed. This is a clear violation of our agreement. I am requesting that you promptly file an Answer to our Complaint, as well as responses to our Interrogatories and Requests for Production. Furthermore, I want to set up a deposition of Mr. Crandy as soon as possible. My secretary will be in touch with you for a mutually convenient date. We will want complete answers to our Interrogatories and Requests for Production prior to taking Mr. Crandy's deposition. We have had a potential purchaser of the lot next to Crandy's driveway, who has delayed closing on the lot because of the offensive signs. The couple is now seriously considering purchasing a lot in another development. If we lose this sale which is in excess of $200,000, we will hold your client directly accountable. Very truly yours, 4"" C). /YU Richard C. Angino RCA/sc 272797.1\RCA\SC ANGINO &. Rc VNER, P. C. 4503 NDRTH FRONT STREEr HARRISBURG, PA 17110-1708 717/2386791 FAX 7 1 7/23 85610 RICHARD C. ANGINO NEIL J. ROVNER JOSEPH M. MELILIA TERRY S. HYMAN DAvIDL Lulz MICHAEL B. ICOSIK RICHARD A. SADLOCK JAMES DECUM JOAN I- STERULAK LISA M. BENzm W NRV.ANGIN&ROVNER.COM F.MAM ACA@ANGINO-ROVNER.CDM March 19, 2004 Richard C. Rupp, Esquire Rupp and Meikle 355 North 21" Street Camp Hill, PA 17011 Re: Angino v. Crandy Dear Mr. Rupp: Enclosed is my Reply to New Matter and Counterclaim. You will note that our Interrogatories and Request for Production dated 12/29/03 are long overdue. I request that responses be promptly filed. If I do not have responses within the next ten days, I will file a motion to compel with the request to impose of sanctions. I also want to take the deposition of Mr. Crandy as soon as possible. Assuming we will have answers to my Interrogatories and Requests for Production within the next ten days, my secretary will be in touch with you to set up the deposition soon thereafter. Thank you for your cooperation in this regard. I recognize that Mr. Crandy has blamed me for certain activities which occurred involving independent contractors hired by me. I would like for you to assure him that I had absolutely nothing to do with any actions taken by any independent contractor, which may have involved trespassing onto his land. I engaged a civil engineer. I engaged independent contractors. I signed a contract with PP&L. I did everything that a responsible owner could be expected to do for the construction of a road on his property. I apologize for any trespass by any independent contractor and/or by PP&L itself. I am currently looking into how it may have occurred that PP&L could have proceeded to install electric lines on Mr. Crandy's property unless Mr. Crandy signed an agreement with PP&L. On the other hand, Mr. Crandy has benefited from the use of an access road for many years at no expense. More recently, I have expended a considerable amount of money to construct and pave a road from which Mr. Crandy will obtain substantial benefit. He certainly should contribute at least 10 or 15% of the approximately $300,000 of costs incurred for the road and the electric service of which he has benefited. Without the road and without the electricity, Mr. Crandy would be unable to get to his property and/or otherwise function in a 2155 or even 20d' century manner. Botha road and electrical services now lead to his property. You are certainly knowledgeable in the field of real estate law. It is true that a landlocked property is entitled to obtain an easement by necessity. For that easement of 2737D4.1\RCA\SC Richard C. Rupp, Esquire March 19, 2004 Page 2 necessity, a landlocked property must contribute a fair share of the cost and maintenance of the road. Presumably, the same principles apply as to utilities. I suggest that, since Mr. Crandy has benefit to the extent of at least 10% of $300,000 or $30,000 and that the independent contractors may have damaged him to the extent of $5,000, Mr. Crandy pay the sum of $25,000 to resolve the road/utility issue. As to the spite signs, I already have a potential buyer for $210,000, who has signed a contract and who is now going to void the contract because of Mr. Crandy's spite signs. If Mr. Crandy does not voluntarily remove the spite signs within the next ten days and I lose this contract, I will be looking to receive from him the $210,000 I am going to lose. As you might suspect, this matter is of critical urgency. The failure to remove the signs may lead to punitive damages in addition to compensatory. I suggest we complete our discovery in the next 60 days and that I proceed then to list the matter for trial. I am prepared to go to trial as soon as I have answers to my Interrogatories and Requests for Production and take Mr. Crandy's deposition. I suggest that you promptly file your Interrogatories and Requests for Production and take depositions of whomever you feel will be necessary for you to defend the case. Please advise me as to any reasons that you will not be prepared for the listing of this case for trial within 60 days. Thank you. Very yours, Richard C. Angino RCA/sc Enclosure 273704.I\RCA\SC ANGINO & R )VNER, RC. 4503 NORTH FRONT STREET HARRISBURG, PA 171101706 717/2386791 FAX 717/2385610 RICHARD C. ANGINO NEB. J. ROWER. JOSEPH M. MELILLO TERRY S. HYMAN DAvm L LUTz MICHAEL B, KOSIK RICHARD A. SADLOCK JAMES DECIN'n JOAN L. STEHUTAK LISA M. BENZ01 W W W.ANGINO-ROVNER.COM EMAIL- RCA@ANGINO-ROVNERCOM March 30, 2004 Richard Rupp, Esquire Rupp and Meikle 355 N 21s` St. Camp Hill, PA 17011 Re: Angina v. Ronald Crandy Dear Mr. Rupp: Enclosed are two ALR Annotations which I suggest you share with your client. They deal with one of the subjects of my lawsuit which requires that Crandy contribute to the cost of the road. I am still waiting for responses to my Interrogatories and Requests for Production. I am also still waiting for Crandy to remove his spite signs. As soon as I receive the answers and responses to my Interrogatories and Requests for Production, I will have my secretary arrange a mutually convenient time to set up Mr. and Mrs. Crandy's depositions. Very yours, Shard C. Angina RCA/sc Enclosures 274174.1\RCA\SC CERTIFICATE OF SERVICE I, Shirley Corman, an employee of Angino & Rovner, P.C. hereby certify that a true and correct copy of the foregoing PETITION FOR IMMEDIATE INJUNCTION was served by United States first-class mail, postage prepaid, upon the following: Richard Rupp, Esquire Rupp and Meikle 355 N. 21st Street Camp Hill, PA 17011 Attorney for Defendant Crandy Dated: V/9/ox je - /C- , a'7?7 S r ey Corman .y APO 2004 RICHARD C. ANGINO, ALICE K. ANGINO and KING DRIVE CORP. Plaintiffs/Petitioners IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. RONALD L. CRANDY, Defendant/Respondent CIVIL ACTION - IN LAW AND EQUITY NO. 03-6564 ORDER ? Q $And Now, this _ day of - , 2004, upon consideration of Plaintiffs'/Petitioners' Petition For Immediate Injunction, it is :hereby Ordered, that a hearing is scheduled on Petitioner's Petition for Immediate Injunction for&/ >ad? /.In at_ :00 (time) in Courtroom . J . By th J. d NVA14INNU Lo :z old zz 8dV hOOZ aHViO JO 14, RICHARD C. ANGINO, IN THE COURT.' OF COMMON PLEAS OF ALICE K. ANGINO CUMBERLAND COUNTY, PENNSYLVANIA and King Drive CORP. Plaintiffs/Petitioners V. RONDALD L. CRANDY, CIVIL ACTION - IN LAW AND EQUITY Defendant/Respondent NO. 03-6564 ORDER OF COURT AND NOW, this 26th day of May, 2004, after hearing, the request for preliminary injunction is granted insofar as the Defendant/Respondent is directed to comply with the Silver Spring Township zoning ordinances in connection with all signs erected or placed on his property. He shall forthwith remove any signs in which the township determines to be in violation of its ordinance and shall not replace them until any challenge to that determination has been successfully made. This preliminary injunction shall become effective upon posting of a bond in the amount of $1 by the Plaintiff. ,Richard C. Angino, Esquire 4503 North Front Street Harrisburg, PA 17110 For Plaintiffs/Petitioners Aichard C. Rupp, Esquire Rupp and Meikle 355 North 21st Street Camp Hill, PA 17011 For Defendant/Respondent pcb By.; he Co , Edward E. Guido, J. 05 zg-o/ 11.01 '1 ez Al4ooz Ko/IOVO'rl LU 31Al 40 l0a4c-031lj . ANGINO, IN THE COURT OF COMMON PLEAS OF RICHARD C ALICE D ANGINO CUMBERLAND COUNTY, PENNSYLVANIA and KING DRIVE CORP., Plaintiffs/Petitioner V. CIVIL ACTION - IN LAW AND EQUITY RONALD L. CRANOY, 03-6564 C:LVIL TERM Defendant/Respondent TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORA13LE EDWARD E. GUIDO, J., Cumberland County Courthouse, Carlisle, Pennsylvania, On May 26, 2004, in Courtroom Number 5. APPEARANCES: Richard C. Angino, Esquire For the Plaintiffs/Petitioners Richard C. Rupp, Esquire For the Defendant/Respondent FOR PLAINTIFF Charles K. Vandenburgh Richard Angino FOR THE DEFENDANT James E. Hall Ronald L. Grandy INDEX TO WITNESSES DIRECT CROSS REDIRECT' RECROSS 5 21 -- 28 -- 35 40 41 -- INDEX TO EXHIBITS FOR THE PLAINTIFF 1 - Plot plan 2 - Settlement documents 3 - General ledger 4 - Permit document 5 - Correspondence IDENTIFIED 4 4 4 4 4 FOR THE DEFENDANT 1 - Photo 2 - Photo 3 - Permit sign IDENTIFIED 36 37 37 May 26, 2004 1 Carlisle, Pennsylvania 2 (The following proceedings were held at 1:16 p.m.) 3 4 (Plaintiff's Exhibits 1 through 5 marked for 5 identification.) 6 THE COURT: Good afternoon. This is the time and 7 place set for the hearing on your request for a temporary or g preliminary injunction, is that correct, Mr. Angino? 9 MR. ANGINO: That is correct, Your Honor. THE COURT: Ready to proceed, Mr. Rupp? 10 11 MR. RUPP: Yes, Your Honor. THE COURT: Mr. Angino, call your first witness. 12 MR. ANGINO: Your Honor, could I just preliminarily 13 14 identify a few things before I call the first witness? 15 THE COURT: Sure. MR. ANGINO: Your Honor, we have marked certain 16 17 exhibits preliminary to calling my first witness. Plaintiff's 18 Exhibit No. 1 is a plot plan, Exhibit 2 are settlement 19 documents, Exhibit 3 is a general ledger, Exhibit 4 are Silver 20 Spring sign application and permit documents, Exhibit 5 are 21 correspondence. I would like to pass it up to Your Honor, 22 because I will be working with -- 23 THE COURT: Do you have any objection to the 24 admission of any of these exhibits, Mr. Rupp? 25 MR. RUPP: Yes, I will, because this is just for 4 1 the preliminary injunction on the signs that are there now, and 2 I think a lot of this is not relevant to the issue of whether 3 the signs should be -- 4 THE COURT: Your only objection is to relevancy? 5 MR. RUPP: Yes, Your Honor. 6 THE COURT: I will look at them and certainly 7 discount what isn't relevant to the issue here. 8 MR. ANGINO: I would like to call Ken Vandenburgh 9 as my fir st witness. 10 11 CHARLES K. VANDENBURGH, 12 ha ving been duly sworn, testified as follows: 13 DIRECT EXAMINATION 14 BY MR. ANGINO: 15 Q What is your full name? 16 A Charles K. Vandenburgh,. 17 Q What is your profession or occupation? 18 A A realtor and developer. 19 Q How long have you been doing -- 20 A 44 years. 21 Q With respect to the particular matter before us, 22 when was your first involvement with respect to what we will 23 refer to as the King Drive/Crandy matter? 24 A It comprised 1984, early 185. 25 Q What was your involvement at that time? 5 I 1 A I was a realtor approached by a guy named 2 Vogelsong, now deceased, who had had a problem that needed to 3 settle a lawsuit with his relatives about an inheritance and 4 needed to get money quick to take this land out of that status 5 and divide it among his friend, Ron Crandy and himself, and 6 hopeful I would buy the rest; then I contacted you and we did. 7 Q So there were two friends, a man by the name of 8 Crandy, a man by the name of Vogelsong, and they were looking 9 for you to attempt to find a third person, is that right? 10 A Right. 11 Q And you found me? 12 A Right. 13 Q As a part of those negotiations, I am showing you 14 what has been marked as Plaintiff's Exhibit No. 1. Could you 15 identify it please? 16 A This is the subdivision plan that divided up the 17 three parcels on to Walter Vogelsong, about 15 acres; one to 18 Randy Crandy, about 35 acres, and the balance of land to King 19 Drive. 20 Q For the benefit of the Court here, the particular 21 land to the left that has the hash marks or the -- 22 A Contour lines. 23 Q -- contour lines, it says to be conveyed to Ronald 24 Crandy, 35.02 acres, is that what it says? 25 A That is correct. 6 1 Q Then there is a center section that says remaining 2 lands of King Drive 57.64 acres, is that right? 3 A That is correct. 4 Q Then off to the right northern part of right top -- 5 A Southern part. 6 Q -- southern part, top corner, we see a parcel C to 7 be conveyed to Walter J. Vogelsong, 15.77 acres, is that right? 8 A That is right. 9 Q It shows a proposed road, does it not? 10 A Correct. 11 Q It shows with regard to Crandy a driveway leading 12 to a cul-de-sac, does it not? 13 A Well, a piece of land for a driveway, 50 foot wide 14 by about 370 feet long, which is part of the Crandy parcel on 15 which his driveway would be built. 16 Q Was there ever anything written or any agreement 17 between K ing Drive and Crandy in terms of who would pay for the 18 road, who would pay for the maintenance or anything along that 19 line? 20 A Not to my knowledge. 21 Q The second document we have marked Plaintiff 22 Exhibit - - 23 THE COURT: Which road are we talking about? 24 MR. ANGINO: That proposed road -- 25 A From here to here then. 7 1 THE COURT: Okay, from the road from King Drive -- 2 A Yes. 3 THE COURT: To the cul-de-sac -- 4 A Right. 5 THE COURT: King Drive being the public road? 6 A Yes, it is. 7 THE COURT: And that is a private drive, that 50 8 foot right-of-way? 9 A It has now been approved as a public road, it is 10 finished. They call it Rural Street in Silver Spring Township. 11 THE COURT: This is -- 12 A Owned by Crandy. 13 THE COURT: So that property is owned by him? 14 A Owned by him. 15 THE COURT: Is that correct? 16 A Yes. 17 BY MR. ANGINO: 18 Q So King Drive is a public road, is that right, 19 Mr. Vandenburgh? 20 A Yes. 21 Q This would be a private road up until recently that 22 went from King Drive to the cul-de-sac? 23 THE COURT: Although the subdivision shows it as a 24 rural street? 25 A It is to become one when you do the improvements. 8 1 THE COURT: It doesn't say to become one, it says a 2 rural street. Were you involved in the subdivision process? 3 A No, I was aware once in awhile -- I didn't got to 4 the meetings. 5 THE COURT: Under the subdivision in effect at that 6 time was there something that was called a rural street? 7 A My records would be -- the engineering firm that 8 did this plan would have titled that based on the ordinances 9 that they would have looked at too I believe. 10 THE COURT: So the maintenance of that would have 11 been pursuant to whatever the ordinance was? 12 A Ultimately, sure, the township -- 13 BY MR. ANGINO: 14 Q Mr. Vandenburgh, there was no street there when 15 this was purchased? 16 A That is correct. 17 MR. ANGINO: This was just a field, Your Honor. 18 THE COURT: I understand, but you filed a 19 subdivision plan that was approved. As part of the subdivision 20 plan the King Drive Corporation filed, they said this was going 21 to be a rural street, so Rural Street would be open to the 22 public -- 23 A Eventually, yes, I would agree, eventually. One 24 thing we should know, you can't subdivide a plan without some 25 access to the public street. 9 1 THE COURT: Correct, this was to be a rural street 2 of the subdivision land -- 3 4 BY MR. ANGINO: 5 Q Mr. Vandenburgh, there was no approval back in 1996 6 of this plan I don't think. 7 THE COURT: This plan :is dated '85. Mr. Crandy 8 wouldn't have been able to get his land conveyed unless he had 9 frontage upon a township road without a subdivision approval. 10 MR. ANGINO: Your Honor, if you would look at this, 11 you will see final subdivision plan. There is nothing recorded 12 in any book or anything. There was nothing there. 13 THE COURT: It says up here: Dated 6/26/85, all 14 streets shown hereon or parts thereof if not pre-dedicated are 15 hereby tendered for dedication to public use. 16 MR. ANGINO: What I am saying, Your Honor, you will 17 see with the deeds that follow that there is and was not any 18 public road at that point in time or for many, many years 19 thereafter. 20 THE COURT: Okay. I do see the note on the 21 subdivision plan. Okay, this is the exhibit. 22 MR. ANGINO: This is just to show you how it 23 started. 24 THE COURT: Okay. It does define rules, but it 25 says: Nothing setforth hereon the subdivision shall be 10 1 construed to require the developer to improve the roadway to 2 township specifications at any time. 3 BY MR. ANGINO: 4 Q Mr. Vandenburgh, Exhibit 2 are what we refer to as 5 settlement documents, is that correct? 6 A Yes. 7 Q These settlement documents consist of a letter. 8 Could you tell us who wrote the letter and the purpose of the 9 letter? 10 A I am going to read it. From David Getz. 11 Q Who is David Getz? 12 A An attorney at Wix, Wenger, Weidner that I believe 13 represents you. 14 Q It was to whom? 15 A To Mr. Morganthall, Fenstermacher and Otto who were 16 involved I guess in the acquisition of the property. 17 Q These would be the attorneys for the other parties? 18 A No -- the purpose of this letter is to revise and 19 update the prior correspondence, which they all reviewed. And 20 specifically, I refer you to our letters of October 6 and 22nd, 21 193. There was never a total meeting of the minds of all the 22 various parties regarding the disbursement of the funds in our 23 escrow account and the payment of the balance due from 24 Mr. Crandy in the amount of $1,105.41. I will mail you a copy 25 of Mr. Otto's letter of August 4th which sets for a story from 11 1 Mr. Crandy why he believes that no additional funds are due 2 him. Do you want me to read the whole -- 3 THE COURT: No, I can read. 4 MR. ANGINO: The Court has the letter, he can read 5 it. Following that part, there are three deeds, and if so, 6 tell us from whom to whom and the amount of acreage involved. 7 THE COURT: I can also read that. 8 MR. ANGINO: You are right, Your Honor, I am so 9 used to having a jury in front of me. You can obviously read. 10 BY MR. ANGINO: 11 Q There are three deeds conveying the three parcels, 12 is that right? 13 A That is correct. 14 THE COURT: Mr. Vandenburgh, you were involved in 15 this as how, principal of King Drive or -- 16 A No. As a realtor, I was getting parties together. 17 Richard and I had a partnership, he put the money, he and I 18 were going to own the middle section for awhile, and then I 19 didn't have the money to stay in the thing and he bought me 20 out. 21 THE COURT: So you were involved at one time -- 22 A Sure, coordinate everything, that is for sure. 23 BY MR. ANGINO: 24 Q Mr. Vandenburgh, I show you what has been marked 25 Plaintiff's Exhibit 3. Is it identified as a ledger account? 12 I A It is a general ledger as of May 31, 2004. 2 Q Across from land development costs with regard to 3 King Drive, is there a total of $876,638? 4 A Yes, there is. 5 Q To perhaps bring the Court up to date -- 6 THE COURT: Wait, I am not sure I understand what I 7 just heard, and I am not sure I understand what your 8 relationship with King Drive is that you can testify to Exhibit 9 No. 3. 10 A I only said what I saw. 11 MR. ANGINO: Your Honor, all he did at this point 12 was identify it. I will testify personally with regard to that 13 document, it was an identification document. I haven't asked 14 to move it on the basis of anything he can say with regard to 15 that document. 16 MR. RUPP: We would object that the witness is not 17 familiar with the document. 18 THE COURT: I will suszain that, you can identify 19 the document. I wanted to make sure that I understood. 20 A I didn't prepare it. 21 THE COURT: Or at the current time you have no 22 involvement in King Drive Corporation. 23 A Not as an officer or anything. I am hired 24 periodically to help solve problems that King Drive has in 25 various projects -- 13 1 MR. ANGINO: Your Honor, he knows nothing about 2 this document. 3 A I am not an accountant: for them. 4 THE COURT: Good enough, thanks. I understand. 5 BY MR. ANGINO: 6 Q The purpose of the document, Your Honor is, are you 7 aware that going back to 1986 what was done over at this 8 property? 9 A Yes, I am. I was involved in most of that. 10 Q Can you explain to the Court the chronology from 11 1986 to the present generally? 12 THE COURT: Before he does that, explain to me 13 where you are going with this. How is this relevant to whether 14 or not this sign should be up there= now? That is all that is 15 before me today is whether or not a sign should be allowed to 16 be up there. 17 MR. ANGINO: All I was doing with this, Your Honor, 18 is how we got to the point where signs appeared in the last 19 year. That is where I am going. There were no signs up until 20 development was completed practically. 21 THE COURT: Okay. Explain to me how that is 22 relevant. If there was nobody trespassing on his property, 23 there would be no need for signs. 24 MR. ANGINO: Right. 25 THE COURT: How was all of this relevant and how 14 1 does this play into whether or not the sign should be there? 2 MR. ANGINO: The trespass occurred as part of their 3 construction of the cul-de-sac at the end and PP&L coming in to 4 put their line. 5 THE COURT: Okay. Start there then. 6 MR. ANGINO: Start ricfht there. 7 THE COURT: Unless there is some -- 8 MR. ANGINO: There is no need for going through 9 that. 10 THE COURT: Good, thank you. 11 BY MR. ANGINO: 12 Q During the last year, did this particular property 13 reach the point where there actually was an approved 14 subdevelopment plan? 15 A Yes, for 17 lots. 16 Q Did it reach a point where a road was constructed 17 with regard to that subdivision plan? 18 A Yes. 19 Q As part of the execution of the construction of the 20 road did there have to be construction of a cul-de-sac? 21 A Yes. 22 Q With regard to the construction of the cul-de-sac, 23 was an independent contractor engaged? 24 A Yes, Sebastian (phonetic) Brothers I believe. 25 Q In terms of the construction of this cul-de-sac, 15 1 was there a need for an electric and utility line to go from 2 one side of the King Drive property to the other side of King 3 Drive's property? 4 A Yes, it goes down to the primary line all along the 5 west side and then crosses the road about four or five times to 6 get service over to the east side. 7 Q I am referring to the place where the cul-de-sac 8 is, is there a cross-over in the vicinity of the Crandy 9 entrance road? 10 A Yes, the primary line goes all the way down the 11 west side and curves up around the top of the cul-de-sac and 12 terminates just east of Ron's 50 foot frontage. 13 Q Did it occur that the independent contractor, PP&L, 14 whoever might have been involved with Silver Spring Township, 15 put the line on to a few feet of Crandy's property? 16 A Yes, they did. I talked to them personally about 17 it, and I talked to Ron about it. He showed me, I agreed, it 18 definitely was on his property. 19 Q Did you explain to him that I had nothing to do 20 with that? 21 A Right. I told Ron that Richard doesn't even know 22 what is going on as far as that goes and the contractor did it. 23 Ron complained about it, as a recall, and everyone apologized 24 and said they shouldn't have crossed his property, but they 25 did. 16 1 Q Did you talk to Mr. Crandy about trying to work out 2 some kind of agreement to take into account this inadvertent 3 trespass? 4 A Yes, we had extensive discussions about that. 5 Q Did anything work out:' 6 A Well, the brief answer is no, but we sure tried. 7 Ron tried too, I thought he gave me a lot of information about 8 things that had happened out there, even some surveying 9 questions I don't think he knew about but -- I believe the 10 roadway contractor took his pins out in the front and threw 11 them on the ground. All these things were bad. I told him I 12 didn't know anything about it, but I was sure sorry. I knew 13 you didn't know anything about it. 14 I tried to write down as best I could what he would 15 like to have to solve the matter. I sent him an agreement that 16 I prepared to do that. Ron called me to say he had several 17 issues that I had forgotten that were -- I definitely forgot, 18 and he suggested that I make some changes and change the 19 agreement, which I did. And then :C could not get Ron to call 20 me back after that, to this day I don't know why. 21 Q Since he wouldn't call you back, did you get in 22 touch with me? 23 A Yes. 24 MR. ANGINO: Your Honor, if I could turn to the 25 complaint at this point, Your Honor. Do you have the complaint 17 1 there? 2 THE COURT: I do. 3 BY MR. ANGINO: 4 Q As Exhibit B to the complaint, are there pictures 5 of the types of signs that Mr. Cra.ndy put on his property? 6 A Yes, those are the pictures that I saw. 7 THE COURT: Actually, those are Exhibit A to the 8 complaint, at least to my complaint. 9 MR. ANGINO: Whatever, Your Honor. 10 BY MR. ANGINO: 11 Q There are a number of signs, is that right? 12 A Yes. 13 THE COURT: I see three pages of pictures that 14 looks to be two on each page. Are you referring to the same 15 thing? 16 A I think so. 17 THE COURT: Okay. 18 BY MR. ANGINO: 19 Q Mr. Vandenburgh, at that point in time after I 20 filed the complaint, have you been attempting to sell lots? 21 A Oh, sure. 22 Q What has happened as far as people looking to buy 23 the two particular parcels adjoining Mr. Crandy's property? 24 A The one party who has had a written agreement for I 25 think 8 months now has specifically said they will not settle 18 1 because of the signs and the matter has to be resolved or they 2 will go buy a lot somewhere else. There has been lots of 3 discussion with them. I keep hoping this can be solved and the 4 Crandys would accept your offers. They are still here but they 5 have definitely looked in a development otherwise, particularly 6 Liberty Forge -- 7 MR. RUPP: Your Honor, I object, this testimony is 8 hearsay. 9 THE COURT: Overruled. 10 A Their names are Shebal, and Jill is who I talked 11 to. They talked to Ron personally, not at length, but at the 12 site. They have this matter hanging and we are about to lose 13 them if we haven't already. 14 BY MR. ANGINO: 15 Q How about other people? 16 A Better than that is the family that Bob Hughes at 17 Jack Gaughen had out there. We took information to them and 18 they went out there several times. That was a million dollar 19 home. Their quote that came back through Bob Hughes, hearsay I 20 guess, was that they would not buy into a situation that looked 21 like the Hatfields and McCoys. 22 Ron never said anything bad or did anything to them 23 but the signs alarmed them greatly. They went out once on a 24 Saturday and told Bob, who told me,, that there was just a line 25 of fellows up in the driveway not doing anything wrong but it 19 1 looked menacing to them and they said they would not buy under 2 the circumstances. 3 Q Mr. Vandenburgh, I now show you Plaintiff's Exhibit 4 4. You are familiar that Silver Spring Township actually has 5 an ordinance that has specific requirements as far as signs, is 6 that right? 7 A Yes. 8 Q Under that ordinance there are what are referred to 9 as -- 10 A I will find it. Well, I haven't read this. It is 11 not copied in the original form but I know -- 12 MR. ANGINO: Your Honor, I think somehow they made 13 a mistake with my set of documents, may I borrow that one that 14 you have, please, the original. Thank you. 15 BY MR. ANGINO: 16 Q Is there a particular category called property 17 control signs? 18 A Yes. It states that the signs must be no closer to 19 one another than 50 lineal feet. 20 Q One per 50 lineal feet.. Can you tell us the 21 current situation as far as the signs directly across the front 22 of Mr. Crandy's property? 23 A As of last Saturday there were five yellow no 24 trespass -- I think there are no hunting or posted signs I 25 guess they call it for hunters. These were within the size 20 1 limits of the township, standard signs; but they were 5 and 50 2 lineal feet, which would space them at an average of 12 feet 3 apart. And there were two other signs of that type further up 4 the drive about a hundred feet. The big signs are no longer 5 there. 6 MR. ANGINO: No further questions of this witness, 7 Your Honor. 8 THE COURT: Cross-examine. 9 10 CROSS-EXAMINATION 11 BY MR. RUPP: 12 Q Mr. Vandenburgh, you have been involved with King 13 Drive and the subdivision ever since its formation, is that 14 about correct? 15 A In and out. I didn't go to township meetings and 16 do anything with the planning, but I did ask questions and 17 consult with them. 18 Q Do you happen to know whether there were any signs 19 there before the dispute over the cul-de-sac and the electric 20 line arose? 21 A I can't remember seeing any, but I wouldn't be 22 surprised if there could have been, because I know Ron and his 23 friends are hunters and they would normally post the property. 24 Had it been five in a row across 50 feet, I am sure there was 25 no such thing as that. I was alarmed when I first saw it, and 21 1 I don't think there were any like that. 2 Q Mr. Vandenburgh, I am going to show you -- 3 A I can see it from here. 4 Q It is a 12 by 12 yellow sign. 5 A That is type of sign that is there. 6 Q Does this look like the writing that is on the 7 signs that are there? 8 A It seems to be, yes. 9 Q Can you tell from where you are sitting the size of 10 this paper, can you tell approximately? 11 A It looks like about a foot by 15 meters. 12 Q So you approached Mr. Crandy with one or two 13 agreements, is that right, to settle the issues? 14 A I hope I am right about this because Ron is here, 15 but I think he called me because he had some complaints about 16 the contractor's work which might have been on his property and 17 some other things. So I went out to meet him up out there, and 18 then he and I discussed a lot of things that concerned him. So 19 I did prepare an agreement, copied of our similar agreements I 20 had, trying to put his issues into the agreement. Things that 21 Richard would do for him if he wou=_d let him landscape it and 22 get the signs down. 23 Q Do you recall Mr. Crandy complaining about people 24 working for Mr. Angino trespassing on to the Crandy property? 25 A Yes, he told me that. I told him I was sorry, I 22 1 didn't know anything about it and Richard didn't. 2 Q Did Mr. Crandy complain about boundary line pins 3 being rem oved? 4 A Yes, he did, and I think he was telling the truth. 5 Q Did Mr. Crandy complain to you about contractors 6 coming ov er and removing dirt, one or two truck loads of dirt 7 from the Crandy property? 8 A I don't remember that, but there is no question 9 they exca vated the electric line through there and they 10 probably did put that into a truck. I don't think Ron ever 11 said they went up on his property and took any dirt. This is a 12 narrow 50 foot access, 307 feet long up to where his cabin is. 13 I don't think anyone went up there. 14 Q We talked about, if we have the one exhibit -- 15 A The plan. 16 Q Can I refer to that with you. 17 A The plot plan. This is his driveway. 18 Q The driveway extends from the cul-de-sac. 19 A Yes. 20 Q There is a major electric vault box that is from 21 PP&L, but then is there a private line that crosses Mr. 22 Crandy's private driveway? 23 A You mean like a secondary service? 24 Q Right. 25 A I don't know for a fact but -- 23 1 Q It serves from this terminal point, the other lot? 2 A wow, that, is possible. The way they do this is 3 the big primary line comes down the west side, terminates at a 4 vault and it wouldn't surprise if it would back feed the same 5 trench this way, but I don't know that for a fact. 6 THE COURT: Mr. Rupp, how is this relevant to what 7 is before me today? 8 MR. RUPP: Well, because they were proposing 9 agreements and they are saying that the signs went up in 10 retaliation apparently for no agreement or not satisfactory 11 agreement, and we are disagreeing with that. 12 A I don't know when they went up, I just know they 13 did. I was hoping to resolve all this with Ron. Richard is 14 kind of out of the -- on this -- 15 THE COURT: Is there a reason why he shouldn't be 16 complying with the township ordinances, or are you taking the 17 position the township ordinance doesn't apply? 18 MR. RUPP: Correct. These are legal signs, Your 19 Honor. They are legal signs, that is what we are contending. 20 BY MR. RUPP: 21 Q Did you make any complaint to the township 22 requesting enforcement against Mr. Crandy for these signs? 23 A No, I did not. 24 Q Were you asked to at all? 25 A No. 24 1 Q Did you consult the township as far as what signs 2 were legal? 3 A No, I did not. 4 Q Were you consulted what signs were legal when Mr. 5 Angino filed this petition for the injunction today? 6 A No, I only saw this exhibit today that showed the 7 50 foot spacing. I just told him that we were horrified about 8 it. It is killing the sales, and let him know that, and he 9 took action to solving that. 10 Q Are there other land owners nearby that have any 11 similar signs? 12 MR. ANGINO: Objection, Your Honor. 13 A I don't know actually. 14 THE COURT: Sustained, but never mind. 15 BY MR. RUPP: 16 Q Did Mr. Crandy do you know have continuing problems 17 with people trespassing who were working for Mr. Angino 18 trespassing onto the Crandy property? 19 A I never heard that, but I did know Ron was very 20 upset during the construction of that road maybe a year prior 21 to this stuff we are talking about because it was made a muddy 22 mess, and he tried to go out on weekends for recreation with 23 his buddies and they got stuck and couldn't deal with it and 24 called and complained. 25 I called Richard's manager, Bob Brennan, who then 25 1 called the contractor, and supposedly they opened things up and 2 got it fixed quick and got stone in. I think that happened 3 more than once, but that wa sn't on Ron's property, that was the 4 road access to get to Ron. I didn't hear of anything where 5 they were up on Ron's prope rty other than the PP&L business. 6 Q Any additional pins being removed at all, did you 7 hear about that? 8 A Ron told me th at he thought a pin or two had been 9 moved up at the top, and he asked that the entire southern 10 boundary of the property be re-surveyed to confirm that what 11 the surveyors may have put back from what was missing was 12 correct. 13 I think Ron felt they were off by a couple feet, 14 and I am pretty sure we offered to do that in the settlement 15 offers I prepared. 16 Q Do you remember when you discussed the settlement 17 offers with Mr. Crandy? 18 A I would say last fall. I saw a date on one, it was 19 November of last year, so I think we discussed this at least a 20 month before. 21 Q Maybe October? 22 A That sounds right. 23 Q In talking to Mr. Crandy, was there a discussion 24 about rem oving the signs before the settlement agreement was 25 executed and do you remember what you said about that? 26 1 A I don't specifically, but I can imagine that 2 happened. I remember there were two settlement agreements 3 offered. I can picture something about that being beforehand. 4 The first one before the second maybe, I am not sure. 5 Q Maybe informing the first one, do you remember, was 6 there a discussion about Ron removing the signs and do you 7 remember what he replied to that? 8 A I really don't, but -- 9 Q Did you say something like, Ron, leave the signs up 10 for right now because if you take them down now you wouldn't 11 have any bargaining position with Mr. Angino? 12 A No, I don't remember saying that. 13 MR. RUPP: Your Honor, I don't have any further 14 questions. 15 THE COURT: Any redirect? 16 MR. ANGINO: I don't have anything. 17 THE COURT: You may step down. Any other 18 witnesses, Mr. Angino? 19 MR. ANGINO: Myself, Your Honor. 20 THE COURT: All right. 21 MR. ANGINO: Attorneys have testified before 22 without taking an oath, but I am certainly willing to take an 23 oath, whichever way. 24 (Witness sworn.) 25 MR. ANGINO: I will do this in a question and 27 1 answer fashion 2 3 RICHARD K. ANGINO, ESQUIRE, 4 having been duly sworn, testified as follows: 5 EXAMINATION 6 BY THE COURT : 7 Q Why don't you just tell me what you want me to 8 know. 9 A All right, Your Honor. My name is Richard Angino, 10 I am the pre sident and sole owner of the stock of King Drive 11 Corporation. 12 I bought a piece of land in 1986 for the purpose of 13 development, started into the actual development as time went 14 on in terms of building a road. 15 In the last few years we have actually got to the 16 point where we obtained the subdivision approval based upon the 17 fact that we had to let soil sit for a period of time. 18 Q That is the 54 acres, the subdivision -- 19 A Right. 20 Q -- three lots were subdivided off in '86? 21 A Right. We are talking about making 17 lots out of 22 the 57 acres . 23 Q Okay. 24 A So that what happened, Your Honor, is last year I 25 hired an ind ependent contractor to put the road in. I had a 28 1 gentleman from PP&L come to me to sign an easement in terms of 2 where the electric lines and utilities would go. I had an 3 engineer, Silver Spring township had an engineer, all these 4 individuals met at the site with regularity. 5 Despite Silver Spring Township's engineer, my 6 engineer, PP&L, and a contractor, they crossed Mr. Crandy's 7 property. 8 Kim Vandenburgh at my direction went to see if 9 something could be worked out. We prepared two potential 10 agreements to do a variety of things, because we apologized for 11 doing it. Although, I didn't have any knowledge that it 12 happened. I am wondering how could this happen with PP&L's 13 engineer, a Silver Spring Town ship engineer and a contractor, 14 it happened. 15 So what happened is I saw the sign that you saw in 16 the complaint, which clearly were spite signs. These were 17 things that were way up in the sky in red color and obviously 18 this means you and all that kind of stuff. 19 I have been told by Mr. Vandenburgh that he tried 20 to work it out amicably and couldn't, which caused me to have 21 to file a complaint. 22 Your Honor is aware that a complaint was filed on 23 December 22, 2003. Mr. Rupp requested additional time to 24 answer the complaint. I gave him additional time on the 25 premiss that he would see that Mr. Crandy remove the signs. 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Time went by and the signs weren't removed. There is Exhibit 5, which is correspondence, Your Honor, between me and Mr. Rupp. You will see from that correspondence -- Q Well, is this what you are referring to as being irrelevant? A Yes. THE COURT: Mr. Rupp, do you object to me reviewing Exhibit 5? MR. of it is irrele THE Exhibit 5 then? MR. THE RUPP: 7ant, b COURT: RUPP: COURT: No, Exhibit 5, Your Honor, I think some ut I don't have any objection with that. You have no problem with me reviewing No, Your Honor. I will do that. BY THE COURT: Q Go ahead. A That is what I am saying, Your Honor, you will see where I said you can have the time if the signs are removed. The signs weren't removed. I am telling him to file an answer. He files an answer raising new matter. I file a response to that. I supply him with everything that I can to show him the law. The Silver Spring township law, and it is clear, Your Honor, they have to be 50 feet apart on a lineal basis. 30 1 I supplied him with cases in other states, there 2 was no cas e law in Pennsylvania, pointing out that spite signs 3 like s pite fences are illegal. 4 Q Did any of those cases you cited, Mr. Angino, deal 5 with a no trespassing sign? 6 A No, Your Honor. They had to deal with the first 7 signs that he had up, the big signs in red. Those weren't no 8 trespa ssin g signs, Your Honor, those were billboards. 9 Q Those are down now? 10 A Those are down now. So to cut to the chase, Your 11 Honor -- 12 THE COURT: You agree they are not going to go back 13 up? 14 MR. RUPP: We agree they are not going back up. 15 THE COURT: All I am looking at now are the 5 foot 16 signs, 2 f eet by 3 feet. 17 MR. RUPP: They are 1 foot by 1 foot, Your Honor. 18 A Your Honor, we are not objecting to the signs now, 19 except the proximity. He has them 12 feet across, apart, right 20 across the front of his property. 21 BY THE COU RT: 22 Q So you are objecting to the number? 23 A The number. He doesn't need 14 signs, 5 across and 24 then, you know, the spacing -- all I have told him to do is 25 follow the Silver Spring Township :Law. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 When Mr. Rupp talks about did we advise Silver Spring Township, there is among that correspondence, Your Honor, a letter of May 13, 2004, sending a copy to Silver Spring Township. Q Has Silver Spring done anything to your knowledge? A Since May 13, I don't know if they have done anything as yet, Your Honor. But we are here, Your Honor, for a preliminary injunction based upon the fact that I am losing customers, and this has been going on now for 6 or 7 months. This all started in October of last year. Q Do you agree that he is entitled to put no trespassing signs on his property as long as they comply with the Silver Spring Township law? A I certainly agree. THE COURT: Do you disagree with that? MR. RUPP: No. THE COURT: What do you need me for? MR. RUPP: They are calling our signs retaliatory. THE COURT: He has already taken the position that -- this is a preliminary injunction. If I don't have to get into the merits, I am not going to. If he is agreeing that you comply with the ordinance and you are agreeing you comply with the ordinance, that sure seems reasonable to this Court and let Silver Spring decide what their ordinance says. MR. RUPP: Exactly. Right, Your Honor, we could do 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. The one contention that we had was the 50 foot distance and that was that -- THE COURT: That would be for Silver Spring to interpret their ordinance, not for me at this preliminary point. MR. RUPP: Right, Your Honor. What we were going to do is ask that the matter be dismissed because they did not ask Silver Spring for any enforcement. Silver Spring has not been requested to do anything, it has not gone through any interpretation by Silver Spring, and Mr. Crandy has not been advised by Silver Spring that he is in violation of anything, and that, therefore, we are pulled into this hearing too soon. Mr. Angino did not take any steps to protect his interests by filing any request with Silver Spring at this point. And we have the codes officer from Silver Spring present, Mr. Jim Hall is here. THE COURT: Okay. My question is, it sounds to me like you are both agreeable to an order that just prohibits him from maintaining any signs on his property that are in violation of the Silver Spring Township ordinance. MR. ANGINO: That would be perfect, then -- THE COURT: If you are both agreeable to that, I will enter that order and my involvement is at an end and you guys can sue each other until you are blue in the face. 33 1 MR. RUPP: Your Honor, your order is what the 2 ordinance says anyway, so how can I not agree to that? 3 THE COURT: To make sure we got it covered, why 4 don't I take a brief recess. If you both agree to that, I will 5 enter that order. If not I will hear what you want me to hear. 6 MR. ANGINO: That would be fine. The rest of the 7 matter is for another day. 8 MR. RUPP: Exactly, we agree with that. 9 THE COURT: All right. The rest of the matter is 10 for another day, as Mr. Angino just said. 11 So take five minutes and let me know if you have 12 reached an agreement. If you haven't, I will come back out and 13 hear the rest of the case. 14 (Recess.) 15 MR. RUPP: Thank you, Your Honor. 16 MR. ANGINO: The wisdom of the Court can be 17 followed with that type of order saying that the Defendant will 18 follow the signed ordinance of Silver Spring township. 19 THE COURT: Correct, you have the Silver Spring 20 Township to interpret their own ordinance. 21 MR. ANGINO: Right. 22 MR. RUPP: All we did, Your Honor, I wrote 23 something out that the parties reached on agreement that the 24 Plaintiffs' petition for preliminary injunction is dismissed 25 and the parties agree that the parties shall abide by the 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Silver Spring township zoning ordinances with each party reserving the right to pursue respective rights to challenge interpretation. MR. ANGINO: I don't agree with that, Your Honor. I agree with an order that he will follow -- there is no dismissal. THE COURT: You don't agree with the dismissal. Anything else you want me to know? MR. ANGINO: No, that is it. THE COURT: Then I will hear your case then. MR. RUPP: All right. Your Honor, I would first call Mr. Jim Hall. JAMES E. HALL, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. RUPP: Q Jim, would you please state your full name for the record? A James E. Hall. Q Where are you employed, Jim? A I am employed at Silver Spring Township. Q Jim, what is your position there? A I am the zoning officer. Q We are here today, Jim, over signs that are viewed 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as retaliatory and the owner of Kings Drive and his corporation has been asked for them to be removed. Have you been out to the property known as Mr. Crandy's property which is adjacent to Kings Drive Corporation property? A I was out there this morning. Q What did you observe, Mr. Hall, when you were out there? A I seen five signs, posted type signs, yellow. MR. RUPP: I would like this marked as an exhibit. (Defendant's Exhibit No. 1 marked for identification.) BY MR. RUPP: Q Jim, I am going to show you a document marked Defendant Exhibit No. 1. Would you look at that and would you describe that? What does it show? A That is a yellow posted sign that says private property. Hunting, fishing trapping or trespassing for any purpose is strictly prohibited, violators will be prosecuted. Q Is that the sign that was up that you saw on Mr. Crandy's property? A Like signs were posted on the property, yes. Q Are those legal signs in Silver Spring's township? A That type of sign is a legal sign. Q I have a photo which unfortunately printed out on blue ink, but it is representative. 36 1 (Defendant's Exhibit No. 2 marked for 2 identification.) 3 BY MR. RUPP: 4 Q Jim, this is Defendant's Exhibit No. 2. This is an 5 image taken from the cul-de-sac. Is that representative of Mr. 6 Crandy's property from the cul-de-sac out there? 7 A Yes, it is. 8 Q The two taller signs, is that where the gate posts 9 are? 10 A There are two posts there with a chain between 11 them. 12 Q Where are the signs then, the five you were 13 speaking about? 14 A There is two of them on each one of the -- there is 15 one on each of the posts. There is two -- one on each side of 16 the posts, and there is another one right close by that is not 17 shown on this photograph. 18 Q Has Silver Spring Township been asked or has your 19 office been asked to declare these signs illegal by anyone on 20 behalf of Mr. Angino or King Drive Corporation? 21 A No, sir. 22 Q Has any complaint been filed at all by either Mr. 23 Angino or Kings Drive Corporation regarding these signs? 24 A No, sir. 25 (Defendant's Exhibit No. 3 marked for 37 1 identification.) 2 BY MR. RUPP: 3 Q Jim, I am going to show you what has just been 4 marked Defendant's Exhibit No. 3. Can you identify for the 5 Court what that page represents? 6 A This page is from the zoning ordinance, and it is 7 the permit sign requirements. 8 Q The type of sign would be described in which block 9 in the left-hand column? 10 A It would be in what we call the property control 11 signs block, which is from the top, and posted would be the 12 fourth block down from the left. 13 Q On that property control signs, could you read what 14 that says in your block there? 15 THE COURT: I can read.. 16 BY MR. RUPP: 17 Q The next column is what kind of category, Jim? 18 A This is called the maximum permitted number. It 19 says one per 50 lineal feet of property line. 20 Q So that description, one per 50 lineal feet of 21 property line, is actually described in the category maximum 22 number of signs permitted? 23 A That is correct. 24 Q So it is a description defining maximum number of 25 signs? 38 1 A That is correct. 2 Q Is there anywhere explicitly in the ordinance 3 explicitly that says how far apart these control signs must be? 4 A Under the maximum permitted number it gives one per 5 50 lineal feet of property line. 6 Q But in that block -- 7 MR. ANGINO: Objection, Your Honor, this is a 8 matter for the Court to determine in terms of interpreting an 9 ordinance. 10 THE COURT: Sustained. When it gets to me, it is a 11 matter for the Court or for the Zoning Hearing Board of Silver 12 Spring Township to determine, and I think they should get the 13 first shot at it rather than this Court. 14 MR. RUPP: Very good. 15 BY MR. RUPP: 16 Q Are these signs, are they regularly posted around 17 in Silver Spring Township by other residents. 18 MR. ANGINO: Your Honor, I don't know the relevance 19 of that. 20 THE COURT: Sustained. He already stated there 21 are, if they are legal. What we have now is a question of the 22 configuration. 23 24 MR. RUPP: I don't have any further questions. 25 THE COURT: Mr. Angino, any further questions? 39 1 2 CROSS-EXAMINATION 3 BY MR. ANGINO: 4 Q Do you know how high two are on the posts? 5 A Mr. Angino, I did not measure them. I can't tell 6 you. 7 Q If they are higher than five feet, they would be 8 illegal, right? 9 A That is correct. 10 Q You could see they are about 12 feet apart, they 11 are not 50 feet apart, right? 12 A They are less than 50 feet apart, yes. 13 MR. ANGINO: No further questions. 14 THE COURT: Thank you, sir, you may step down. Any 15 other witnesses, Mr. Rupp? 16 MR. RUPP: Yes, Your Honor, I would call 17 Mr. Crandy. 18 MR. ANGINO: Your Honor, I would like an offer of 19 proof, since this is boiled down to be a matter of 20 interpretation of following Silver Spring Township or not 21 following Silver Spring Township. 22 THE COURT: Just tell me what he is going to say, 23 Mr. Angino may not have any -- 24 MR. RUPP: The preliminary injunction says that 25 there are numerous large offensive retaliatory signs, and we 40 1 would like to dispute that. 2 MR. ANGINO: Your Honor, at this point it is no 3 longer an issue. 4 THE COURT: Not now that he has taken down the 5 signs that pose the greatest problem. 6 MR. RUPP: The other thing is the petition is 7 incorrect in that these signs were down before the petition was 8 filed. 9 THE COURT: Okay. He can testify to that then. Go 10 ahead. 11 MR. ANGINO: Are you saying the petition or the 12 complaint? 13 MR. RUPP: Actually, both. 14 15 RONALD L. (-RANDY, 16 having been duly sworn, testified as follows: 17 DIRECT EXAMINATION 18 BY MR. RUPP: 19 Q Ron, please state your full name for the record. 20 A Ronald Lawrence Crandy. 21 Q Actually, where do you reside, what is your 22 residence? 23 A 309 Sharon Drive, New Cumberland. 24 Q What property do you own in Silver Spring Township? 25 A I own 35 acres. 41 I Q I am going to show you, Ron, an exhibit which was 2 to both Mr. Angino's petition, as well as his complaint, there 3 are three pages. These were part of both of the documents. 4 You have seen those pages? 5 A Yes. 6 Q When did you learn from Mr. Angino that he was 7 objecting to certain signs that you had up? 8 A On the 19th of December I watched his two, I don't 9 know what they were, but they were taking pictures of the 10 signs. On the 20th at 8:00 o'clock at night when I got home 11 from friends' house I got a letter in the mail giving me 10 12 days to remove them or he was going to file a lawsuit to me. 13 So that was 8:00 o'clock at night. At 6:30 in the morning I 14 got up and removed them on the 21st of December. 15 THE COURT: All of them or just the large ones? 16 A All the large signs, every sign, except for the 17 five standard no trespassing sign. 18 THE COURT: Okay. 19 BY MR. RUPP: 20 Q Those standard no trespassing, those were already 21 admitted as an exhibit for us, is that right? 22 A Yes, and according to the complaint on the 9th of 23 April that they were still up; but I had removed them on 24 December 21st, the day before he filed the complaint to the 25 Court. 42 1 Q Obviously, they have not been up since you took 2 them down? 3 A I took them down and destroyed them. 4 Q So in the mail you got not a filed complaint but 5 you got what would be filed, a document that said what would be 6 filed? 7 A Yes, I took it as a letter of intent that I had so 8 many days to remove them or he was going to file a lawsuit 9 against me. 10 Q Actually, the lawsuit was filed would you say 11 before the 10 days elapsed? 12 A He claims he filed the lawsuit on the 22nd and they 13 were removed at 6:30 in the morning on the 21st, so I didn't 14 get the 10 days. 15 Q Okay. Mr. Crandy, what prompted you to put those 16 signs up, those larger signs? 17 A The larger signs went up because surveyors came on 18 and removed my pins, they cut down numerous amounts of my 19 trees. Then they came on and they ran electric on my property. 20 They busted the lock on my gate. They ran the electric, they 21 tore my one pin out. 22 So I went over there and I immediately told the 23 township assistance manager, Kelly -- 24 MR. ANGINO: Your Honor, I object to this 25 testimony, it is beyond the scope of what you said he can 43 I testify to 2 THE COURT: Well, the action is still pending, the 3 allegations are that these were erected in spite, they are 4 relevant for that purpose, so I am going to allow the 5 testimony. 6 MR. RUPP: Thank you, Your Honor. 7 A I went over to Kelly Kelch on July 2nd and I filed 8 a complaint that they had broke my lock on my gate. They had 9 removed one of my pins, and they ran electric across my 10 property. It wasn't electric, it wasn't their main line, it 11 was electric going to one of his other lots. 12 BY MR. RUPP: 13 Q So your understanding is that the electric line 14 that crosses your private driveway is actually a private 15 electrical line, not part of the PP&L line? 16 A Yes, it is a line going to lot No. 9. 17 Q It provides a service of electric to the lot? 18 A Yes. 19 Q Was there any dirt removed from your property? 20 A Well, after I talked to Kelly Kelch, he informed 21 the engineer that they were on my property, and he didn't want 22 them to proceed any more until that was settled. 23 He claims -- I talked to Kelly Kelch again, and he 24 claims that six days later the engineer contacted him and said 25 that everything has been worked out with me and they had talked 44 1 with me and everything -- a deal had been made. But I have 2 never, ever in my life, ever talked to this engineer. So he 3 deceived Kelly Kelch by telling him that they had contacted me. 4 Then Kelly Kelch I think gave them permission to 5 resume. Then they went on to my property, removed the other 6 pin and removed two truck loads of top soil from my property. 7 When they did that, they damaged one of my apple trees. 8 Then after that, several weeks later I had put 9 rocks to mark my boarder, because my boarder is like an arc at 10 the bottom, 53 foot arch, not straight across from pin to pin. 11 I took these nice mountain rocks and I put one in from each 12 side of that to mark my arch, and then his people came on and 13 removed half of my rocks. 14 They turned around a couple weeks later and came 15 back and put all these trees in front of my property, so my 50 16 foot right-of-way was now restricted to 6 feet. After that 17 they came on and threw tan bark, but they never re-seeded my 18 property. They left my driveway with big ditches on it, they 19 just destroyed everything. 20 Q Let's get back to the big signs. How long were the 21 big signs up if you recall? 22 A Approximately three weeks. I put them up because I 23 figured they couldn't read the smaller signs. The very time I 24 was asked ev er to remove them, I remov ed them within 12 hours. 25 Q As soon as you were asked to remove them via this 45 1 courtesy complaint, you removed them immediately? 2 A I removed them immediately. 3 Q The yellow signs that we described which are 4 approxima tely 1 foot by 1 foot, do you regularly have those up? 5 A I have been posting my property for 19 years I have 6 owned it. I put up the same amount of signs at the bottom of 7 my drivew ay up my boarders for the 19 years I have owned it. 8 In fact, I have had more signs at the bottom. 9 Q Ron, have you had problems with besides Mr. 10 Angino's workers or contractors coming on, have you had other 11 problems of people coming on your property? 12 A Yes, I have had turkey hunters shoot at my trailer, 13 and I have had several deer hunters shoot at my trailer. 14 Then recently Angino's contractor gave permission 15 for two hunters to go up on my property and hunt. They put up 16 these climbing tree stands and destroyed three of my trees. 17 Q So you have been doing it for 19 years and you feel 18 there is a need for having -- 19 A Yes, for the safety of my children and my family. 20 Q You have heard the zoning officer, he says that his 21 interpretation w ould apparently be one sign, one of these 22 yellow signs per every 50 feet. Describe the perimeter of just 23 your driveway. 24 MR. ANGINO: Your H onor, I don't think we need to 25 go into the whol e perimeter of his property. 46 1 THE COURT: Sustained. 2 BY MR. RUPP: 3 Q Beside the preliminary injunction, have you had any 4 enforcement brought against you regarding these signs at all by 5 anybody? 6 A No, nobody ever talked to me about removing them, 7 except for when me and Ken Vandenburgh talked and he asked if 8 they came on it and repaired it and everything, would I remove 9 the signs at the bottom. I said, Yes, and I asked him if he 10 wanted me to remove them now, he told me, no, don't remove them 11 now because this is a good bargaining chip of getting Mr. 12 Angino to settle with me. I was advised by Mr. Ken Vandenburgh 13 to keep the signs up. 14 Q Until an agreement could be reached? 15 A Until an agreement could be reached. 16 MR. RUPP: Your Honor, I don't have any further 17 questions. 18 MR. ANGINO: I would like to see the letter that I 19 gave you 10 days, do you have it with you here today? 20 A I don't have it. 21 MR. ANGINO: Your Honor, I don't see anywhere wherE 22 there was such a letter. In fact, among the correspondence if 23 you look, Your Honor -- 24 THE COURT: You can make legal argument later, Mr. 25 Angino. 47 1 MR. ANGINO: Sure, I don't have any more for you. 2 THE COURT: You may step down, sir, thank you. 3 Do you have any other witnesses? 4 MR. RUPP: No, Your Honor. 5 THE COURT: Okay. Go ahead, Mr. Angino, what do 6 you want me to know. 7 MR. ANGINO: Your Honor, what I wanted to point out 8 to you is you can see my correspondence file is in front of 9 you, and what it provides is there is a November 25, 2003, 10 letter from Ken Vandenburgh; there is then a December 19 letter 11 from Cathleen Vandenburgh to me; there is then a December 19, 12 2003, letter to the prothonotary. So he is saying that I sent 13 him a letter giving him ten days, :I don't see it among my 14 correspondence. 15 Your Honor, the pictures are dated 12/19/93, so we 16 filed the complaint the day the pictures were taken. 17 THE COURT: Anything you wanted to say, Mr. Rupp? 18 MR. RUPP: Yes, Your Honor, we would like to check 19 that, because I thought that the complaint was filed a little 20 bit later than December 19. 21 THE COURT: You can check what you want, it is not 22 crucial to my decision. 23 MR. RUPP: Your Honor, what I would point out -- 24 THE COURT: It is not crucial to my decision, but 25 frankly, as far as this proceeding going forward, it would seem 48 I to me that what we have here may very well be as much as a 2 failure to communicate than anything else. It certainly 3 doesn't appear to me that Mr. Crandy is spiteful in any way at 4 all. It appears to me he has some rather legitimate grievances 5 that -- 6 MR. ANGINO: I agree, Your Honor, I apologized to 7 him. 8 THE COURT: Have you ever talked to him, Mr. 9 Angino? 10 MR. ANGINO: I have taked through his lawyer, 11 because he has a lawyer. 12 THE COURT: It might not hurt to spend some time to 13 sit down and get to know your neighbor, Mr. Angino, that is an 14 observation. I will enter the following, AND NOW, this 26th 15 day of May, 2004, after hearing, the request for preliminary 16 injunction is granted insofar as the Defendant/Respondent is 17 directed to comply with the Silver Spring Township zoning 18 ordinances in connection with all signs erected or placed on 19 his property. He shall forthwith remove any signs in which the 20 township determines to be in violation of its ordinance and 21 shall not replace them until any challenge to that 22 determination has been successfully made. This preliminary 23 injunction shall become effective upon posting of a bond in the 24 amount of $1 by the Plaintiff. 25 In effect, if the township tells you take them 49 1 down, you got the right to appeal that, but they got to come 2 down until they tell you, until the appeal is challenged; but 3 until they tell you take them down, you keep them up. 4 MR. CRANDY: According to the rules, they are wrong 5 right now, can I correct them? 6 THE COURT: You can put up whatever signs you want 7 on your property, as long as they comply with the township 8 ordinance. 9 MR. CRANDY: That is a.ll I want to know. 10 THE COURT: That is all I am saying. 11 MR. RUPP: Fine. 12 THE COURT: Good luck with regard to your future 13 litigation. 14 (Court adjourned at 2:27 p.m.) 15 16 17 18 19 20 21 22 23 24 25 50 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Patricia C. Barrett Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. 7 Date rd E. Gu J. 51 1+ 91 :1 Wd 8- Inn %z AU,/ Oj,jG,,LL06'd 2Faj0 301I3?4-031lj Curtis R. Long Prothonotary office of the Protbonotarp Cumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor .63- &91. q CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573