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HomeMy WebLinkAbout08-1547ERR1, INC., d/b/a LIBERTY TAX SERVICE THE BOROUGH OF CARLISLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYVLANIA CIVIL ACTION-IN EQUITY NO. D C) v (I -fef^ 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 a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORAMTION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 (800) 990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the Court. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. 6. Liberty's customers are members of the local population who learn about Liberty through advertising and other promotions, as well as word of mouth and general reputation. 7. Liberty is part of a franchise system consisting of approximately 2700 locations nationwide. 8. Liberty at its' Carlisle location employs "wavers" who are individuals dressed in a smock and headpiece to give the appearance of a representation of the Statue of Liberty. 9. All other similar locations, which are part of the same franchising system, employ similar "wavers". 10. In January and February of this year, Liberty's Carlisle location "wavers" have stood downtown at the square of Hanover and High Streets in Carlisle as well as in front of Liberty's location at 28 South Hanover Street, Carlisle, Pennsylvania. 11. Agents of the Borough have orally communicated to Liberty that the "wavers" would be subject to, and need to pass background checks and/or otherwise be certified under Local Carlisle Borough Ordinances 237-1 to 237-11. 12. A copy of the Ordinance in question, and an application for the Ordinance, and a copy of an email between the Borough's Solicitor (which is attached hereto) were delivered by Carlisle Police Officer Fones. 13. On the afternoon of March 7, 2007 the Carlisle Police communicated a "final warning" to Liberty and threatened to cite them under Carlisle Borough Ordinances 237-1 to 237-11 because wavers were present that afternoon on the corners of High and Hanover Street. IV. DECLARATORY JUDGMENT 13. Previous paragraphs are incorporated by reference. 14. The Ordinance in question defines the parties needing Transient Vendor Permit in Section Carlisle Borough Ordinances 237-1 to 237-11. (Attached as Appendix A) 15. The Borough has made it clear that it believes Liberty falls under this definition by the delivery of the Application, the Ordinance and an email with an opinion of the Borough Solicitor so indicating, and further by requesting that the same be completed and returned to the Borough. 16. Liberty does not believe that the Ordinance applies to the activity of the "wavers", as the "wavers" carry no signs, no handbills and simply wave to pedestrians. 17. Further, the "wavers" do not solicit door to door nor they make direct solicitations on behalf of Liberty as contemplated by the Ordinance. 18. Liberty asks that this Honorable Court determine whether the Ordinance in question applies to Liberty and/or the "wavers". 19. Liberty also believes that even if the Ordinance is found to apply to Liberty and/or the "wavers" themselves, it is violative of Article I. Section 7 of the Pennsylvania Constitution and The First Amendment to the United States Constitution. 20. Liberty's "wavers" have a right to congregate in the public square and public streets as any other citizen would. 21. Liberty's "wavers" are thus having their freedom of association chilled or limited by the Borough Ordinance. 22. Liberty's "wavers" and Liberty have a right to dress and promote representations of the Statue of Liberty in the public square. 23. The Ordinance is preventing employees of Liberty from walking freely about the town, from standing about the town, and/or otherwise from spending time around and through Carlisle. 24. The right of expression of Liberty and its' "wavers" is impaired by the Ordinance in question, and there is no compelling governmental interest being protected by the application of the Ordinance. 25. Further, even if there is a governmental interest being protected by the Ordinance, the application of the Ordinance to Liberty cannot survive strict scrutiny and therefore must be struck. 26. Finally, the Carlisle Ordinance is overly broad as written and could effect people exercising any of their respective rights under Article_ I, Section 7 of the Pennsylvania Constitution or the United States Constitution including the First Amendment, insomuch as it is facially overbroad and may affect either the rights of Liberty or some other third party. 27. Liberty asserts its' right to make a facial challenge to the Ordinance under the First Amendment of the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. 28. Since there are conceivable opportunities when this Ordinance could be overbroad, Liberty demands that it be struck as constitutionally infirm. WHEREFORE, for all of the foregoing reasons, Liberty asks that this Court enter a Declaratory Judgment and find that the language of the Ordinance does not apply to Liberty and/or in the alternative that the Ordinance as written is actually or facially infirm under the United States Constitution and the First Amendment thereto, or Article I. Section 7 of the Pennsylvania Constitution and as such void and unenforceable. V. REQUEST FOR INJUNCTION 29. Previous paragraphs are incorporated by reference. 30. Liberty seeks injunctive relief for all of the grounds contained in Count I by way of Injunctive Relief and incorporates those claims as if more fully set out herein. 31. Liberty requests that this Honorable Court restrain and enjoin the Borough of Carlisle from enforcing this Ordinance against it or any other entity for conduct of Liberty or conduct similar thereto. WHEREFORE, Plaintiffs respectfully requests that this Honorable Court enter an Injunction prohibiting the Borough of Carlisle from enforcing Carlisle Borough Ordinances 237-1 to 237-11. VI. PRELIMINARY INJUNCTION 32. Previous paragraphs are incorporated by reference. 33. Liberty's tax season ends on April 15th, when most returns most be filed for most taxpayers. 34. Liberty provides a valuable service to the taxpayers and provides competition to other national chains. 35. It is beneficial to consumers to have competing entities in Carlisle. 36. Thus harm will flow to the taxpayer if Liberty is enjoined from promoting itself by application of the Ordinance complained of. 37. Liberty has determined both at the individual franchise level and the system wide studies, that the "waivers" attract attention and business for Liberty. 38. Further, because Liberty employs "waivers" in front of so many stores in the franchise system, the absence of "waivers" lead many to believe that the location may be closed. 39. Irreparable harm will happen to Liberty if the Borough is allowed to continue to enforce or seek to enforce the Ordinance complained of and therefore Liberty seeks Preliminary Injunction pending resolution of issues in this suit. WHEREFORE, Plaintiff Liberty requests a Preliminary Injunction in its favor enjoining the Borough of Carlisle from taking any actions under Carlisle Borough Ordinances 237-1 to 237-11 until the underlying matters can be resolved and more fully litigated. Date: March 7, 2008 Respectfully submitted, ROMINGER & ASSOCIATES Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff ERR I, INC., d/b/a LIBERTY TAX SERVICE THE BOROUGH OF CARLISLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYVLANIA CIVIL ACTION-IN EQUITY NO. 6 9-?'' 15q7 Cdv? l ?cJM ATTORNEY VERIFICATION KARL E. ROMINGER, ESQUIRE, states that he is the attorney for ERRI, d/b/a Liberty Tax Service, Plaintiff in this action; that he makes this affidavit as attorney because the Officer of the Corporation is not in the area at this time and because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unsworn falsification to authorities. Dated: March 7, 2008 Karl E. Rominger, Esquire Attorney for Plaintiff Chapter 237 TRANSIENT RETAIL BUSINESSES § 237-1. Title. § 237-2. Definitions and word usage. § 237-3. Authorization required; fee; exemptions. § 237-4. Representation by promoter. § 237-5. Application for authorization. § 237-6. Investigation of applicants; granting of authorization. § 237-7. Restricted days and hours. § 237-8. Denial or revocation of authorization. § 237-9. Conduct during parades. § 237-10. Appeals. § 237-11. Violations and penalties. (HISTORY: Adopted by the Borough Council of the Borough of Carlisle 9-13-1979 by Ord. No. 1328, approved 9-13-1979. Amendments noted where applicable.] GENERAL REFERENCES Distribution of advertising materials - See Ch. 73. Parades - See Ch. 163. Fees - See Ch. 120. Conduct in parks - See Ch. 168. § 237-1. Title. This chapter shall be known and may be cited as the "Borough Transient Retail Business Ordinance." § 237-2. Definitions and word usage. A. As used in this chapter, the following terms shall have the meanings indicated: AUTHORIZATION - License, but it shall not connote a tangible document to be carried or possessed by the licensee. PERSON - Includes any natural person, partnership, association, firm or corporation. PROMOTER - Any person, as defined in this chapter, who organizes the gathering of five or more persons, as defined in this chapter, engaged in transient retail business. TRANSIENT RETAIL BUSINESS - (1) Includes the following. (a) Engaging in peddling, canvassing, soliciting or taking of orders, either by sample or otherwise, for any goods, wares or merchandise, upon any street or alley, sidewalk or public ground or from house to house within the Borough of Carlisle. 237:1 12.15.2004 CARLISLE CODE § 237-3 § 237-2 (b) Selling, soliciting or taking orders for any goods, wares or merchandise from a fixed location within the Borough, on a temporary basis, which shall include, but shall not be limited to, such activities conducted at the time of special occasions or celebrations, for seasonal purposes or for or in advance of specific yearly holidays. (2) "Transient retail business" shall not include sidewalk sales conducted by merchants on the sidewalks in front of their establishments when such sidewalk sales are held by authority of the ordinance governing the same,' provided that the regular businesses of such merchants are nontemporary in nature and fixed in location at their said addresses. [Amended 5-24-1990 by Ord. No. 1676, approved 5-24-1990] B. In this chapter the singular shall include the plural, the plural shall include the singular, and the masculine shall include the feminine and the neuter. § 237-3. Authorization required; fee, exemptions. A. No person shall engage in any transient retail business within the Borough of Carlisle without first having obtained from the Police Chief or his or her delegate authorization to do so, for which a fee as set forth in Chapter 120, Fees, as enacted and ordained, and as may be, from time to time, amended, shall be charged. [Amended 2-15-1985 by Ord. No. 1470, approved 2-15-1985; 10-9-1986 by Ord. No. 1515, approved 10-9-19861 B. No authorization fee shall be charged under this section: (1) To farmers selling their own produce. (2) For the sale of goods, wares and merchandise donated by the owners thereof, the proceeds whereof are to be applied to any charitable or philanthropic purpose. (3) To any manufacturer or producer in the sale of milk or milk products, bread and bakery products or meat and meat products. C. All persons exempted hereby from the payment of the authorization fee shall be required to register with the Police Chief or his or her delegate and obtain authorization without fee; provided, however, that any person dealing in one or more of the above-mentioned exempted categories and dealing with other goods, wares or merchandise not so exempted shall be subject to the payment of the authorization fee fixed by this section for such person's activities in connection with peddling, canvassing, soliciting or taking orders for goods, wares and merchandise not in such exempted categories. The Borough Council may similarly exempt from payment of the authorization fee, but not from registering, persons working without compensation and selling or taking orders for goods, wares or merchandise for the sole benefit of any nonprofit corporation. D. Every authorization granted under the provisions of this chapter shall be granted on an individual basis to persons engaging in such business and every individual shall obtain an 1. Editor's Note: See Ch 223, Streets and Sidewalks, Art. II. 237:2 12-15-2W § 237-3 TRANSIENT RETAIL BUSINESSES § 237-5 authorization, granted to him or her in his or her name, and the authorization fee hereby imposed shall be applicable to every such individual authorization. § 237-4. Representation by promoter. [Amended 6-10-1982 by Ord. No. 1398, approved 6-10-1982] A. In lieu of the requirements imposed by § 237-3 above, a promoter representing five or more persons engaged in transient retail business shall, on behalf of such persons, obtain the authorization provided for in § 237-3, in which case such authorization shall be granted to such promoter in his or her name, for which a fee as set forth in Chapter 120, Fees, as enacted and ordained, and as may be, from time to time, amended, shall be charged. [Amended 2-15-1986 by Ord. No. 1470, approved 2-15-1986; 10-9-1986 by Ord. No. 1515, approved 10-9-1986] B. The fee exemptions set forth in § 237-3 of this chapter shall apply in instances where a group of persons engaged in transient retail business falling into one or more of the exempted categories is represented by a promoter. § 237-5. Application for authorization. A. Commercial activities. (1) Except as provided in Subsection B of this section, every person desiring to engage in a transient retail business within the Borough shall first make application to the Police Chief or his or hef delegate for authorization on a form to be furnished by the Borough. The application, when completed, shall be verified by an oath or affirmation. Where a person makes application for himself or herself and one or more helpers, an application form shall be completed for each helper. The required fee shall accompany the application. A receipt clearly marked "This Is Not a Permit" or words to that effect shall be issued in return for each fee. (2) In lieu of the requirements of Subsection A(1) above, a promoter representing five or more persons engaged in transient retail business within the Borough shall, on behalf of such persons, make application to the Police Chief or his or her delegate for authorization on a form to be furnished by the Borough. The application shall be verified by oath or affirmation. The required fee shall accompany the application. A receipt clearly marked "This Is Not a Permit" or words to that effect shall be issued in return for each fee. B. In the case of any person desiring to engage in a transient retail business by working without compensation for the sole benefit of a nonprofit corporation or in the case of a promoter representing five or more such persons, such person or promoter shall make written application to Borough Council, setting forth the names and addresses of all persons who shall be so engaged in a transient retail business with him or her, and if such application shall be approved by the Council, authorization may be granted by the Chief or his or her delegate without fee, covering all such persons, which authorization shall be valid on the day or days designated under the terms of the authorization as granted. 237:3 12 - 15 - 2004 § 237-6 CARLISLE CODE § 237-8 § 237-6. Investigation of applicants; granting of authorization. A. B. C. Upon receipt of such application, the Chief of Police or his or her delegate shall cause such investigation of the applicant's business or organization and moral character to be made as he or she deems necessary for the protection of the public welfare. If, as a result of such investigation, the applicant's business or organization or moral character is found to be unsatisfactory, the Chief of Police or his or her delegate shall endorse on such application his or her disapproval and the reasons for the same and return said application to the applicant. If, as a result of such investigation, the business or organization and moral character of the applicant are found to be satisfactory, the Chief of Police or his or her delegate shall endorse on the application his or her approval and record the name of the applicant, date, duration of authorization and other data of public interest which he or she deems relevant in a book entitled "Peddling Authorizations Granted," which shall be available for public inspection at reasonable times. The Chief or his or her delegate shall keep a permanent record of all applications made, authorizations granted and authorizations refused. No evidence of authorization shall, however, be issued in tangible form to the person authorized. § 237-7. Restricted days and hours. No person engaging in any transient retail business, when working from house to house, shall engage in such business at any time on Sunday or upon any other day of the week prior t 10:00 a.m. and after 9:00 p.m., except that this prohibition shall not apply to any person who shall have made an advance appointment with a prospective customer for a specific day and hour. § 237-8. Denial or revocation of authorization. Authorizations may be denied, or authorizations granted under the terms of the chapter may be revoked, by the Chief of Police or his or her delegate for any of the following causes: A. Fraud, misrepresentation or false statement contained in the application for authorization. B. Fraud, misrepresentation or false statement made in the course of the business of the person authorized or seeking authorization. C. Any violation of this chapter. D. Conviction of a crime involving moral turpitude. E. Conduct of a person authorized of seeking authorization in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace to the health, safety or general welfare of the public. 237:4 12-15-2004 § 237-9 TRANSIENT RETAIL BUSINESSES § 237-11 § 237-9. Conduct during parades. [Added 3-8-1990 by Ord. No. 1662, approved 3-8-1990] Any person engaged in a transient retail business at a parade, as defined in Chapter 163 of this Code, shall: A. Position himself or herself on the sidewalk, off the cartway of any street or alley and at least 25 feet from the intersection of streets. B. Remain stationary until completion of the parade or until departing from the event § 237-10. Appeals. Any person aggrieved by the action of the Chief of Police or his or her delegate in denying authorization or in the decision with reference to the revocation of authorization shall have the right of appeal to the Council of the Borough of Carlisle. Such appeal shall be taken by filing with the Council, within five days after notice of the action complained of has been mailed to such person's last address or otherwise placed in his or her possession, a written statement setting forth the grounds for the appeal. Borough Council shall set a time and place for a hearing on such appeal, which hearing shall be held not later than 30 days after the date of such filing. Borough Council may take whatever action with respect to the matter that it deems appropriate. § 237-11. Violations and penalties. [Amended 3-10-1988 by Ord. No. 1576, approved 3-10-1988] Any person who shall violate any provision of this chapter shall, for each and every such violation, upon conviction thereof, be sentenced to pay a fine of not more than $1,000 and costs of prosecution, and, in default of payment of such fine and costs, to imprisonment for not more than 30 days. Each day's violation of any provision of this chapter shall constitute a separate violation. 237:5 12-15-2004 Page 1 of 2 Margeson, Stephen L. s From: Margeson, Stephen L. Sent: Thursday, February 14, 2008 9:38 AM To: Reiten, Alycia P.; 'eischorpp@comcast.net Cc: Hietsch, Stephen Subject: RE: Liberty Tax Peddlers Good Morning Alycia, I originally did not think the Transient Vendor permit was applicable to the Liberty Tax people. That is why I asked Ed for clarification. Based upon his e-mail from yesterday we are sending an officer to Liberty Tax today with the Transient Vendor Application package and directions that they cannot engage in the practice of statue of Liberty impersonators walking up and down the sidewalk to solicit business without a Transient Vendor Permit. Once they submit the application it will be processed in accordance with the recently updated Transient Vendor Ordinance. If the statue people engage in other conduct which is disorderly or harassing toward other pedestrians or area businesses, we can deal with that by charging the actor and possibly revoking the Transient Vendor Permit if one is issued. Please feel free to contact me with any further questions. C", -----Original Message---- From: Reiten, Alyda P. Sent: Thursday, February 14, 2008 7:57 AM To: elschorpp@comcast.net; Margeson, Stephen L. Cc: Hietsch, Stephen Subject: RE: Liberty Tax Peddlers So nothing further on the 'human signs"? When they came in to the office here in response to my violation notice of 1/241 expressed that they needed to obtain a transient vendors license and to contact the PD for the proper application. Alycia From: Edward Schorpp [mailto:elschorpp@comcasLnet] Sent: Wednesday, February 13, 2008 8:36 AM To: Margeson, Stephen L.; Reiten, Alyda P. Cc: Hietsch, Stephen Subject: Liberty Tax Peddlers Chief and Alycia, I have reviewed the provisions of Chapter 73 [Advertising Materials] and Chapter 237 [Transient Merchants] of the Carlisle Code in relation to the recent complaints about the costumed solicitors. Chapter 73 is clearly not applicable, as it relates to "casting or scattering" commercial handbills upon streets, etc. It does not apply to handing handbills to persons. However, I do find that the Transient Merchant provisions do apply. Upon checking the definition of "wares" in Websters, it includes "any skill or service one wants to sell." These folks are on the public streets (away from the place of business) to sell tax preparation services. I do not know if the promoter provisions are applicable, as I do not know the number of "helpers." In any event, it seems that the owner should be notified that application must be made and the usual investigation conducted before they continue. Of course, any breach of the criminal law should be dealt with accordingly. 2/14/2008 Page 2 of 2 Edward L. Schorpp, Esquire 35 South Thrush Drive Carlisle, PA 17015-7652 Phone: 717.486.8386 Fax: 717.486.8386 elschorpp@comcast.net CONFIDENTIALITY NOTICE: The above communication is for the personal use of the intended recipient(s) only. This message may be an attorney-client communication and as such is privileged and confidential. If you are not an intended recipient, you may not review, preserve, copy or distribute this message. Unauthorized use, disclosure or distribution is prohibited and may be unlawful. If you are not an intended recipient, or if you believe that you have received it in error, pleaser reply to the sender that you have received the message in error, then delete it. Thank you. 2/14/2008 r a °- p Ir ?o C Co cn -c? %o ERRI, INC., d/b/a LIBERTY TAX SERVICE Plaintiff V. THE BOROUGH OF CARLISLE Defendant To the Plaintiff: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION No. 08-1547 CIVIL TERM You are hereby notified to file a written response to the within new matter within twenty (2) days from service hereof or a judgment may be entered against you. Edward L. Schorpp, Esquire Attorney I.D. No. 17495 35 South Thrush Drive Carlisle, PA 17015-7652 Telephone: (717) 486-8386 Solicitor for the Borough of Carlisle ERRI, INC., d/b/a LIBERTY TAX SERVICE Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION THE BOROUGH OF CARLISLE : No. 08-1547 CIVIL TERM Defendant ANSWER TO COMPLAINT AND NOW, comes the Borough of Carlisle (Borough), by and through its Solicitor, Edward L. Schorpp, Esq., and answers the Plaintiff's Complaint as follows: 1. Denied. After reasonable investigation, the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 2. Admitted. 3. Admitted in part and denied in part. After reasonable investigation, the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments as they relate to the Plaintiff and the same are therefore denied. The averments are admitted as relates to the Borough. 4. Denied. This averment is a conclusion of law requiring no answer herein. By way of further answer, Plaintiff has failed to exhaust administrative remedies as more particularly set forth in New Matter herein. To the extent that Plaintiff is entitled to relief, which is denied, Plaintiff has an adequate remedy at law. 5. Denied. After reasonable investigation, the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 6. Denied. After reasonable investigation, the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 7. Denied. After reasonable investigation, the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 8. Admitted in part and denied in part. After reasonable investigation, the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. By way of further answer, it is admitted that unknown persons dressed in a green smock with a headpiece labeled "Liberty Tax," or words of similar import, are soliciting business on the public sidewalks of the Borough. 9. Denied. After reasonable investigation, the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 10. Denied. After reasonable investigation, the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. By way of further answer, it is admitted that persons dressed as described in Paragraph 8 above (Persons) have been observed soliciting business on the public sidewalks in the Borough at the times and locations described in this averment. 11. Admitted in part and denied in part. It is admitted that individuals at an enterprise labeled "Liberty Tax Service" have been informed that the activities of the Persons are subject to Chapter 237 of the Code of Ordinances of the Borough of Carlisle (Chapter). The remaining 2 averments of this paragraph are denied, as the requirements of the Chapter speak for themselves. 12. Admitted. By way of further answer, the conduct of Plaintiff's counsel in attaching the Borough Solicitor's email to his client was an egregious violation of the Pennsylvania Rules of Professional Responsibility, specifically Rule 4.4(b), which states: "[A] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender." Plaintiff's counsel failed to take appropriate action under the Rule. 13. Denied. The averments of this Paragraph are denied as stated. On March 7, 2008 (not 2007 as averred), the Borough again communicated the Chapter's requirements to Plaintiff and the Borough's intent to have Plaintiff comply with its provisions. DECLARATORY JUDGMENT 14(13).' The averments of paragraphs 1-13, inclusive, of this Answer are incorporated herein as if set forth in full. 15(14). Denied. The Chapter speaks for itself and this averment constitutes a conclusion of law requiring no answer. 16(15). Admitted in part and denied in part. The Chapter speaks for itself and, to the extent that these averments imply that it does not apply to the activities described in the Complaint are conclusions of law requiring no answer. The averments of paragraph 12 of this Answer are incorporated herein by reference thereto. By way of further Answer, the described activities do fall within the ambit of the Chapter's lawful requirements. 'Plaintiff repeated number 13 in its paragraph numbering. The Borough parenthetically includes the incorrect numbers throughout the remainder of this Answer. 3 17(16). Denied. The averments of this paragraph constitute conclusions of law requiring no answer herein. By way of further answer, the Persons do wear a headpiece identifying a commercial business for the purpose of soliciting business. The Persons have been observed handing "handbills" to members of the public and speaking to the public to solicit business. The Persons have been observed waving to traveling motorists causing a safety hazard on the streets of the Borough. 18(17). Denied. After reasonable investigation the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are denied. Whether or not the activities are contemplated by the ordinance is a conclusion of law requiring no answer. By way of further answer, the Persons' activities do constitute solicitation of commercial business on the streets and sidewalks of the Borough as fully contemplated and described in the lawful requirements of the Chapter. 19(18). Admitted in part and denied in part. It is admitted that the Plaintiff seeks the described relief. It is denied that Plaintiff is entitled to any relief. To the contrary, the Plaintiff is subject to the lawful requirements of the Chapter. Plaintiff's rights have not been impaired in a constitutional or statutory sense. 20(19). Denied. These averments are conclusions of law which require no answer herein. Plaintiff s rights have not been impaired in a constitutional or statutory sense. 21(20). Denied. These averments are conclusions of law which require no answer herein. Plaintiff s rights have not been impaired in a constitutional or statutory sense. The Persons are not plaintiffs in this action. 22(21). Denied. These averments are conclusions of law which require no answer 4 herein. Plaintiff's rights have not been impaired in a constitutional or statutory sense. The Persons are not plaintiffs in this action. 23(22). Denied. These averments are conclusions of law which require no answer herein. Plaintiff's rights have not been impaired in a constitutional or statutory sense. The Persons are not plaintiffs in this action. 24(23). Denied. These averments are conclusions of law which require no answer herein. By way of further answer, the requirements of the Chapter simply require registration of those reputable individuals who desire to conduct solicitations and do not prevent the Persons from going anywhere. The Persons are not plaintiffs in this action. 25(24). Denied. These averments are conclusions of law which require no answer herein. Plaintiff's rights have not been impaired in a constitutional or statutory sense. The Persons are not plaintiffs in this action. 26(25). Denied. These averments are conclusions of law which require no answer herein. Plaintiff's rights have not been impaired in a constitutional or statutory sense. 27(26). Denied. These averments are conclusions of law which require no answer herein. Plaintiff s rights have not been impaired in a constitutional or statutory sense. The plaintiff has no standing to assert the rights of others not parties to this action. 28(27). Denied. These averments are conclusions of law which require no answer herein. Plaintiff s rights have not been impaired in a constitutional or statutory sense. 29(28). Denied. These averments are conclusions of law which require no answer herein. The Chapter is constitutionally sound. WHEREFORE, the Borough demands that Plaintiff s Complaint be dismissed. 5 REQUEST FOR INJUNCTION 30(29). Denied. The averments of paragraphs 1 through 29(28), inclusive are incorporated herein as if set forth in full. 31(30). Denied. The averments of paragraphs 1 through 29(28), inclusive are incorporated herein as if set forth in full. As a matter of law, Plaintiff is not entitled to injunctive relief. 32(31). Denied. These averments are conclusions of law which require no answer herein. As a matter of law, Plaintiff is not lawfully entitled to the relief sought. WHEREFORE, the Borough demands that Plaintiff's Complaint be dismissed. PRELIMINARY INJUNCTION 33(32). Denied. The averments of paragraphs 1 through 32(31), inclusive are incorporated herein as if set forth in full. 34(33). Denied. After reasonable investigation the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are denied. 35(34). Denied. After reasonable investigation the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are denied. 36(35). Denied. After reasonable investigation the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are denied. 37(36). Admitted in part and denied in part. To the extent these averments are conclusions of law, no answer is required herein. It is admitted that the activities of the Persons are intended to solicit and promote business for Plaintiff. By way of further answer, if Plaintiff is entitled to any relief, which is denied, it has an adequate remedy at law. 6 38(37). Admitted in part and denied in part. After reasonable investigation the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are denied. It is admitted that the activities of the Persons are intended to solicit and promote business for Plaintiff. 39(38). Denied. After reasonable investigation the Borough is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are denied. 40(39). Denied. These averments are conclusions of law which require no answer herein. As a matter of law, Plaintiff is not lawfully entitled to the relief sought. To the extend Plaintiff is entitled to any relief, which is denied, it has an adequate remedy at law. WHEREFORE, the Borough demands that Plaintiff's complaint be dismissed. NEW MATTER 41. Plaintiff's Complaint lacks proper verification and must be dismissed. 42. Plaintiff has failed to state any cause of action upon which relief may be granted. 43. To the extent that Plaintiff is entitled to relief, which is denied, Plaintiff has an adequate remedy at law and this Honorable Court lacks jurisdiction to grant declaratory or equitable relief. 44. Plaintiff has failed to exhaust administrative remedies by following the appeal procedures set forth in section 237-10 of the Chapter, thus denying this Honorable Court of jurisdiction in this matter. 45. In addition to violating Chapter 237 of the Code of the Borough of Carlisle, Plaintiff, and its employees, contractors and/or agents, are violating the prohibitions of Section 223-12 of Chapter 223 of the Code which states: 7 No person shall place, set up, exhibit or display, sell or offer to sell upon any of the sidewalks in the Borough of Carlisle any goods, wares or merchandise nor shall any person set up and/or operate upon any of such sidewalks any implements or fixtures used in connection with the display and/or sale of goods, wares or merchandise, except as authorized in this article; provided, however, that the Borough Council, by resolution, may suspend the operation of this article for community-wide sales promotion days or for temporary patriotic, civic or charitable purposes or other special occasions. 46. Plaintiff's counsel's conduct in violating the requirements of Rule of Professional Responsibility No. 4.4(b), as set forth above in Paragraph No. 12, was and is egregious, thus requiring this Honorable Court to order such sanctions as, in its reasonable discretion, it deems appropriate. 47. To the extent that Plaintiff's Complaint alleges impairment of the Persons' constitutional rights, the Persons are not parties to this action and Plaintiff lacks standing to assert violations of their rights, any such violations being expressly denied. WHEREFORE, the Borough demands that the Plaintiff's Complaint be dismissed and that it be awarded sanctions in this action. Edward L. Schorpp, Esquire Attorney I.D. No. 17495 35 South Thrush Drive Carlisle, PA 17015-7652 Telephone: (717) 486-8386 Solicitor for the Borough of Carlisle 8 VERIFICATION I verify that the statements contained herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. Dated: :3 (, r / O k CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer was served this date by depositing same in the Post Office at Mount Holly Springs, Pennsylvania, first-class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire 155 S. Hanover Street Carlisle, PA 17013 By: Edward L. Schorpp, Esq. Dated:/i*W4,e?o, .?) ,-? ?? ? ?? 'ni t? ? l ? -, ? , t '' .: , ,Ty ?? ^"?^ S:C? ERRI, INC., d/b/a LIBERTY TAX SERVICE THE BOROUGH OF CARLISLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYVLANIA CIVIL ACTION-IN EQUITY NO. 08-1547 PRAECIPE TO DISCONTINUE TO PROTHONOTARY: Please mark the above referenced matter as discontinued without prejudice. Respectfully Submitted, Rominger & Associates Date: April 28, 2008 1 E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff €7 C p Fr, C'n