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HomeMy WebLinkAbout09-6072 GERALD P. ROBINSON AND MARY C. ROBINSON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CAMP HILL BOROUGH, Defendant To: Camp Hill Borough 2145 Walnut Street Camp Hill, PA 17011 No. Oq- &07.1 0'-wa-Fixf., : CIVIL ACTION - EQUITY 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 of any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3116 ct_t oearaF?trtnat?ntxxx?t P. GERALD t. ROBINSON AND MARY C. IN THE COURT OF COMMON PLEAS OF ROBINSON, CUMBERLAND COUNTY, • PENNSYLVANIA Plaintiffs uc.? ??? No. d 9- G 07.1- V. CAMP HILL BOROUGH, CIVIL ACTION - EQUITY Defendant COMPLAINT AND NOW comes Plaintiffs, by and through their counsel, Stevens & Lee, and makes-the following Complaint, stating in support thereof as follows: THE PARTIES 1. Plaintiffs, Gerald P. Robinson and Mary C. Robinson, husband and wife ("Robinson") are adult individuals who, since December 2000, have owned and resided at the property located at 2815 Fairview Road, Camp Hill, Cumberland County, Pennsylvania, further described by the deed dated December 27, 2000, and recorded in the Cumberland County Recorder of Deeds Office in Deed Book 236, Page 1111 (the "Robinson Property"). A true and correct copy of the deed is attached hereto, incorporated herein, and marked Exhibit A. 2. Defendant, Camp Hill Borough (the "Borough"), is a municipal corporation organized and existing pursuant to the Borough Code, 53 P.S. §45101 et sew., with a business address of 2145 Walnut Street, Camp Hill Pennsylvania. 1 S L 1 944646v 1 / 104199.00001 BACKGROUND 3. The Borough owns and maintains stormwater drains (the "Stormwater Drains") on the following streets owned by the Borough: Country Club Road, Vista Road, Russell Road, Arlington Road, Rathton Road and Benton Road (collectively, the "Streets"). 4. Each of the Stormwater Drains collects stormwater flowing on the Streets in which they are located and channel the stormwater through a pipe which directly discharges the stormwater into a system of swales (the "Swale" or "Swales"). A true and correct sketch depicting the general locations of the Streets, Stormwater Drains, Swales and the Robinson Property is attached hereto, incorporated herein, and marked Exhibit B. 5. A majority of the stormwater from the properties along the Streets (the "Drainage Area"), which collectively measures over 70 acres, flows to the Streets, into the Stormwater Drains, and is channeled into the Swales. 6. The Swales ultimately converge into one Swale, channeling the stormwater onto the Robinson Property. 7. On the Robinson Property is a culvert with a headwall (the "Culvert") which collects the stormwater flowing through the Swales. 8. The Culvert is a corrugated metal pipe which is intended to channel the stormwater from the Borough Streets through the Robinson Property and under Fairview Road to a drainage way leading directly to the Conodoguinet Creek (the Swale through the Robinson Property, along with the Culvert are collectively referred to as the "Stormwater Facilities"). 9. There are no recorded easements or other conveyance documents related to the flow of stormwater onto the Robinson Property or the Stormwater Facilities. 10. Plaintiffs believe, and therefore aver, that no agreement exists regarding the use or maintenance of the Stormwater Facilities. 2 S L l 944646 v l/ 104199.00001 11. The stormwater system consisting of the Stormwater Drains on the Streets, and the Stormwater Facilities have existed for more than 21 years. 12. Inspection of the Culvert revealed that it was severely deteriorated and it was estimated to be over 50 years old. 13. At no time did the Plaintiffs permit, agree, or grant a license or an easement to the Borough or any other person or entity to allow for the channeling of stormwater onto or through the Robinson Property. 14. The Borough has maintained the Stormwater Facilities by dredging and clearing the Swale and Culvert by using Borough employees and, upon information and belief, inmates from the Cumberland County Correctional Facility secured by Borough officials. 15. Except during large storm events, the Swales and the Stormwater Facilities are nearly dry with little or no water flow. 16. In July 2007, after a large storm event, stormwater came rushing from the Stormwater Drains through the Swales which caused flooding to the Robinson Property. 17. Again, in July 2008, after a large storm event, stormwater came rushing from the Stormwater Drains through the Swales which caused flooding to the Robinson Property. 18. After both events, Robinson noticed that the Culvert was full of silt and debris and that the Culvert needed to be cleared and dredged. In addition, the Culvert appeared to be undersized, leading to a back-up of water during these large storm events. 19. Immediately after both events, Robinson contacted Borough officials to report the flooding and to request that the Borough maintain and repair the Stormwater Facilities so that the water from the Drainage Area could be properly managed. 3 SLi 944646v1/104199.00001 20. After Robinson made such contact, Borough employees and/or contractors came to the Robinson Property to maintain the Stormwater Facilities by dredging and clearing silt and debris from the Swale and Culvert. 21. The Borough has performed no maintenance on the Stormwater Facilities since July 2008. 22. In December 2008, Robinson hired contractors who dredged and cleared the Swale and Culvert at a cost of $1,500.00 in an effort to protect their house from future flooding. 23. After numerous meetings with Borough officials, at a public meeting on March 2009, the Borough refused to take responsibility for the ongoing maintenance of the Stormwater Facilities. 24. Due to the July 2008 event when the Stormwater Facilities flooded the Robinson Property, Robinson suffered water damages to his property and possessions in the amount exceeding $8,000.00. . C_ Declaratory Judgment 25. Plaintiffs incorporate by reference all of the allegations contained in paragraphs 1 through 23 as if fully set forth herein. 26. This Court has the authority to issue a declaration of the rights of the parties under such circumstances pursuant to 42 Pa. C.S.A. § 7531, et s? 27. The Borough has a prescriptive easement to discharge stormwater onto the Robinson Property through the Stormwater Facilities as it has intentionally channeled stormwater from the Streets adversely, openly, notoriously continuously and uninterruptedly for 21 years. Gehres v. Falls Twn., 948 A.2d 249 (Pa. Cmwlth. 2008). 4 S L l 944646 v l/ 104199.00001 28. As the owner of the dominant estate of the prescriptive easement, the Borough has an obligation and responsibility to maintain the easement area. Mscisz v. Russell, 487 A.2d 839 (Pa. Super. 1984). 29. Moreover, the owner of the dominant estate is under obligation to keep the easement in good repair, and it may be liable to third person if it fails to keep the right of way in a proper state of repair. Id. 30. The Borough has refused to acknowledge its ongoing responsibility to maintain the Stormwater Facilities, while at the same time, it has continued to discharge stormwater from the Streets onto the Robinson Property. 31. There is an actual controversy between the parties as to their respective rights and obligations with respect to the Stormwater Facilities. 32. A declaratory judgment will resolve the controversy. WHEREFORE, the Plaintiffs, respectfully request that this Court declare as follows: 1) The Borough has a prescriptive easement over the Property through the Stormwater Facilities for the discharge of stormwater originating from the Drainage Area.; and 2) The Borough has the obligation to maintain the Stormwater Facilities in sufficient condition to handle the stormwater from the Borough's Streets; and. 3) The Borough has the obligation to reimburse Plaintiffs for any and all sums expended in the past or in the future on maintenance and repair of the Stormwater Facilities; and 5 S L l 94464 6 v 1/ 104199.00001 4) The Borough has the obligation to reimburse Plaintiffs for any and all damages caused by the Stormwater Facilities flooding the Robinson Property in July 2008. 5) Robinson respectfully requests such other and further relief as this Court deems appropriate. COUNT II Request for Iniunctive Relief 33. Plaintiffs incorporate by reference all of the allegations contained in paragraphs 1 through 31 as if fully set forth herein. 34. The Borough has prescriptive easement to discharge stormwater onto the Robinson Property through the Stormwater Facilities as it has intentionally channeled stormwater from the Streets adversely, openly, notoriously continuously and uninterruptedly for 21 years. Gehres v. Falls Twn., 948 A.2d 249 (Pa. Cmwlth. 2008). 35. As the owner of the dominant estate of the prescriptive easement, the Borough has an obligation and responsibility to maintain the easement area. Mscisz V. Russell, 487 A.2d 839 (Pa. Super. 1984). 36. Moreover, the owner of the dominant estate is under an obligation to keep the easement in good repair, and it may be liable to third person if it fails to keep the right of way in a proper state of repair. Id. 37. The Borough has refused to acknowledge its ongoing responsibility to maintain the Stormwater Facilities, while at the same time it, has continued to discharge stormwater from the Streets onto the Robinson Property. 6 SLl 944646v1 /104199.00001 38. As a result of the Borough's continued use of the Stormwater Facilities without proper maintenance, the Plaintiffs suffer and will continue to suffer damages for which no remedy is available at law. 39. The Plaintiffs are entitled to equitable relief. WHEREFORE, the Plaintiffs respectfully request this Court to issue a decree in equity directing the Borough to take all necessary actions to maintain the Stormwater Facilities and keep the same in good repair for so long as the Borough uses the Robinson Property for the flow of its stormwater from the Streets, and all other relief as is just and proper. Respectfully submitted, Date: September ?-, 2009 STEVENS & LEE Charles M. Suhr, PA No. 72923 David J. Tshudy, PA No. 86053 17 North 2nd Street, 16`h Floor Harrisburg, PA 17101 (717) 255-7356 Attorneys for Plaintiffs, Gerald P. Robinson and Mary C. Robinson 7 S L l 944646v 1 / 104199.00001 VERIFICATION We, Gerald P. Robinson and Mary C. Robinson verify that we are the Plaintiffs in the within action; that the attached Complaint is based upon the facts of which we have personal knowledge; that the language of the document is that of counsel and not our own; and that the facts set forth in the foregoing document are true and correct to the best of our knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unworn falsification to authorities. Date: September 4-, 2009 Date: September ?-, 2009 P ou?? Herald K. Robinson Mary C binson S L l 944646v]/104199.00001 1?§ `sf D ?CO( ITY-P,l THIS DEED 'Ol ?H,V 8111 11 15 TAX PARCEL NO. M Wade the 7 day of December, 2000, BETWEEN JAY A. YOUNG and ANN W. YOUNG, his wife, herein designated as the Grantors, AND GERALD P. ROBINSON and MARY C. ROBINSON, his wife, hraein designated as the Grantees, *ITNESSETH, that the Grantors, for and in consideration of TWO HUNDRED TWENTy. TIjiREE THOUSAND (5223,000,00) DOLLARS lawful money of the United States of America, to 4he Grariom in hand well and truly paid by the Grantees, At or before the sealing and delivery ut1hese presents, the receipt whereof is hereby acknowledged and the Graatota being therewith fully satisfied, do by these presents grant bargain, sell and convey unto the Onu toes forever, Chair heirs and assigns, ALL THAT CERTAIN lot of land situate in Put rnsylvania, more the Borough of Camp Hip, Cumberland County, particularly bounded and described as follows, to wit: BEGINNING at a point on the southerly line of Fairview Road, said point being located seven tImhdralsoudr h ninety-two and sixty-five one-hundredths (792.65) fat m easured along said line from e cast comer of Fairview Road and Vista Drive; thence South 62 degree 30 minutes East along said line of Fairview Road one hundred twenty-five (125) feet to a point; thence South 28 degrees 59 minutes West along line of lands now or formerly of Richard E. Snyder and Dorothy 1.4iiyder, his wife, four hundred eight and thirty-four ore-hundredths (408.34) feet to a point; thence North 32 degrees 50 minutes West along line of other lands now or formerly of Harrie G. Schimmel and E. Elizabeth J. Schimmel, his wife, one hundred forty-three and eighty-one onc. hundredths (143.81) feet to a point; thence North 27 degrees 30 minutes East along the southerly find of lot No. 28 on the hereinafter mentioned Plan forty-five and five-tenths (4S.S) feet to a point; thence North 32 degrees S9 minutes West along the easterly line of said Lot No. 28 thirty and nine-taiths (30.9) feet to a point; thence North 33 degrees 23 minutes East through Lots Nos. 29 nd 30 on said Plan, two hundred seventy-two and ninety-four one-hundredths (272.94) feet to idle place of BEGINNING. 800k 236 PACtff ij BEING all of Lot No. 31, the westerly twenty-five (25) feet of Lot No. 32, and parts of Lots Nos. 29 and 30 on the Plan of Lots of E. T. Schimmel & Son dated May 27, 1995 and recordcxl in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 7, Page 42. HAVING THEREON erected a one and one-half story brick dwelling numbered 2815 Fairview Road. SUBJECT, NEVERTHELESS, to any and all easements, covenants, conditions, restrictions, reservations and rights-of-way, whether of record or visible on the premises, and to any and all Acts of Assembly, County and Borough Ordinances. BEING the same premises which Robert R. Church and Dauphin Deposit Bank and Trust Company, Co-Exeoutors of the Fatale of Audrey A. Harding, deceased, by Deed dated August 26. 1994 and recorded August 29, 1994 in the Office of the Recorder of Deeds in and for Cumberland County in Deed Book 110, Page 1165, granted and conveyed unto lay A. Young and Ann W. Young, husband and wife, the Orantors herein. W ? .aye ! N tZ 1 ?`• b M ..s W M ti S? ?, .?.j w ? + to tll IV Book 236 FAGEW2 TOGETHER with all and singular the buildings, improvements, ways, woods, waters, o in anurses, fights, rt ning; and Privileges, on and?? and appurtenances belonging ywise Appertaining; i ues and profits thereof, and ofeveroio?, to the same winder and remainders. rents, ti le, interest, use [ and Pared thereof; AND also all tl? estate, right, use, Possession, property, claim and demand whatsoev Is and in equity, of, in and to the premises herein described and er of the Grantors both in every part and parcel thereof w th the appurtenances. TO HAVE AND TO HOLD all and singular the premises herein d bed together with the hereditament, and appurtenances unto the Grantees and to Grantees' Per use and benefit forever. i A D the Grantors covenant that, except as may be herein set forth S ECiALLY WARRANT AND DEFEND , they do and will FOREVER the lands amt premise. hereditament and ) appurtenances hereby conveyed, against the Grantors. In all references herein to any parties, Pa¢icular persons, entities or corporation 4 the the of any gender or the plural or singular number is intended to include the appropriate nuthber as the text of the within instrument may require. gender or Wherever in this instrument any party shall be desi gc*rd reference, such designation is intended to grazed or rofemd to by name or '9teIrs, executors, acitninistrato and shall have the same erect as if the word beets insetted Otter each and every P such Personal or legal designation. representatives, successors and assigns" had IN WITNESS WHEREOF, the Grantors have hereunto act choir hands; and sesls, or if a co it to has be pa attiir thcse pity to be signed by its proper corporate officers and its rote ration, sea! xed hereto, the day and year first above written. SICt ED, SEALED AND DELIVERED in the presence of or ATTESTED by Jay A. Yo n ~ Ann W. Young 600K 2W rAf1113 COMMONWEALTH OF PENNSYLVANIA, COUNTY Ol?l? :ss BE IT REMEMBERED, that on ?eCe1?t?DCr??. 2000, before me the subscriber personally appeared, Jay A. Young and Ann W. Young, known to me (or sadsfactorily proven) to be the persons whose names are subscribed to within deed and acknowledged that they executed the same for the purposes therein contained. WITNESS my hand and seal the day and year aforesaid. 11%Awy NAM MARY PUBLIC The undersigned certifies that the precise residence and complete post office address of the Orantee is: a$ IS 7\,t vlQ Q lR?t COUNTY O OF P NSYLVANIA COMMONW F ftjL RECORDED on this day of 2004, in the Recorder's Office of the said County, in Deed Boo ,Page GIVEN under my hand and the seal of the said Office, the date above written. Nf! 1?' ;, :... ?•l p Recorder • •'i: R It - O JGN 4 C z ? -- t - JBCi t`t'+ry epic 236 FAGS 14 C°- - -- Robinson Property Drainage Area, +70 Acres ? f ? Vl'1 t ? t V ?) E t t L'?. ? cam LM Ou ????tt 3F Y ? Highlighted Yellow Areas are the streets within the Drainage Area that drain to the Stormwater Facilities. Red Lines are the swales leading to the Robinson Property. Seven black X's are storm drains from the Streets. 0 FILED-C)FOE OF THE PROTTIONOTARY SEP -4 PM 3+ 4 4 LAND CITY Y .VANIA +1S.50 p o AIV co gaga a5oaM Sheriffs Office of Cumberland County R Thomas Kline Sheri Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor e.°an?r ?t ?"a?m&rrt'?t F1LEC-0FFtCE OF THE F ;?1T'1!r)t10T) 2009 SEP I I PM 1 : 5' 1 ., CUM- Gerald P. Robinson vs. Camp Hill Borough Case SHERIFF'S RETURN OF SERVICE 09/09/2009 02:58 PM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on Aug 2009 at 1458 hours, he served a true copy of the within Complaint and Notice, upon the within nar defendant, to wit: Camp Hill Borough, by making known unto Bill Albright, Receptionist at 2145 WC Street Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time han him personally the said true and correct copy of the same. SHERIFF COST: $41.94 September 10, 2009 SO ANSWERS., R THOMAS KLINE, SHERIFF Deputy 9, to Sheriffs Office of Cumberland County R Thomas Kline Sheri Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant OFF && C7 " c S n @RIFF ALELr, OF THE F, e , r ,, i F?Y Y Edward L Schorpp Solicitor 2009 SEP 18 PM 2: 44 PENNSYLVANIA Gerald P. Robinson vs. Case Number Camp Hill Borough 2009-6072 SHERIFF'S RETURN OF SERVICE AMMDED 09/09/2009 02:58 PM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on September 9, 2009 at 1458 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Camp Hill Borough, by making known unto Bill Albright, Receptionist at 2145 Walnut Street Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $41.94 September 10, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF Deputy Sheriff LAMB MCERLANE PC By: David J. MacMain Attorney I.D. # 59320 By: Mark P. Thompson Attorney I.D. # 86338 24 East Market Street, Box 565 West Chester, Pennsylvania 19380 (610) 430-8000 IN T E COURT OF CUMB RLAND C al GERALD P. ROBINSON AND MARY C. ROBINSON, Plaintiffs, v. CAMP HILL BOROUGH, TO THE PROTHONOTARY: Kindly enter my on Attorneys for Defendant, Camp Hill Borough COMMON PLEAS NTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 09-6072 of Camp Hill Borough, in regard to the above matter. Date: October 5, 2009 McERLANE PC David J. MacZ Attorney I.D. # 59320 Mark P. Thompson Attorney I.D. # 86338 Attorneys for Defendant, Camp Hill Borough LAW OFFICES OF LAMB McERLANE IPC • 24 EAST MARKET STREET • BOX 565 0 WEST CHESTER, PA. 19381-0565 FILED-??trlCu OF THE PPOTHONOTARY 2809 OCT -6 AM 11: 15 u ?? I II To: All Parties You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. ` Mark P. Thompson LAMB MCERLANE PC i Attorneys for Defendant, By: David J. MacMain Camp Hill Borough Attorney I.D. # 59320 By: Mark P. Thompson Attorney I.D. # 86338 24 East Market Street, Box 56 West Chester, Pennsylvania 1 3$ 0 (610) 430-8000 IN 11 E COURT O COMMON PLEAS OF CU B RLAND CUNTY, PENNSYLVANIA GERALD P. ROBINSON AN ARY C. CIVIL ACTION - EQUITY ROBINSON, Plaintiff , NO. 09-6072 V. CAMP HILL BOROUGH, Defendant, Camp Hill attorneys, Lamb McErlane PC Robinson and Mary C. Robinso LAW OFFICES OF LAMB Borough. ("Camp Hill" or "Borough"), by and through its hereby files this Answer to the Complaint filed by Gerald P. n and states as follows: F?C • 24 EAST MARKET STREET • BOX 565 • WEST CHESTER, PA. 19381-0565 1. - 2. Admitted, bas d on information and belief 3. Admitted in P J Denied in Part. It is admitted there are stormwater inlets located in Borough roads including ut not limited to Country Club Road, Vista Road, Russell Road, Arlington Road, Rathton Roa , d Benton Road, which permit the natural surface flow of water from such roads to the Cono o uinet Creek. Plaintiff's characterization of the physical nature and purpose of these stormwa?erl inlets is denied. 4. Admitted in Fart. Denied in Part. It is admitted there are stormwater inlets located in Borough roads tha? permit stormwater collected from Borough roads to follow the natural surface flow of storm at r to the Conodoquinet Creek. Plaintiff's characterization of the physical nature and purpose p so called "swales" located on properties in the Borough is specifically denied. By way f her answer, there are naturally existing low areas, which are not owned or maintained b t e Borough, where surface water flows during rain events eventually leading to the Con d quinet Creek. There are no Borough stormwater facilities on Plaintiffs' property and the B o gh has not intentionally channeled stormwater onto Plaintiffs' property; rather any water fl vying over Plaintiffs' property is the result of natural descent through the watershed to the C n?doquinet Creek. 5. Denied. It is sp c fically denied that a majority of stormwater from properties along Borough roads flow to t e roads and are channeled to swales and strict proof thereof is demanded at the time of trial. 6. Denied. Plaint: f characterization of the physical nature and purpose of so called "swales" located on pro a ies in the Borough is specifically denied. By way of further LAW OFFICES OF LAMB McERLAl E FCC • 24 EAST MARKET STREET • BOX 565 • WEST CHESTER, PA. 19381-0565 answer, Plaintiffs' property i a naturally existing low area where surface water flows during rain events leading under Fairvie road and eventually to the Conodoquinet Creek. 7. Admitted in P Denied in Part. It is specifically admitted there is a pipe located on Plaintiff's property allowi g the flow of stormwater to a Borough pipe under Fairview road. Plaintiffs' characterization of e purpose of the pipe is specifically denied. 8. Admitted in ar1t. Denied in Part. It is specifically admitted there is a pipe located on Plaintiffs property (allowing the flow of stormwater to a Borough pipe under Fairview road. Plaintiffs' characteriza 'op of the purpose of the pipe is specifically denied. 9. Admitted in P Denied in Part. It is specifically admitted that there are no recorded easements relating t the flow of stormwater in favor of the Borough over Plaintiffs' property. Plaintiffs' characte 'z?ation of the natural surface flow of water as flowing through "stormwater facilities" is sneci iclally denied. 10. After a reasona le investigation Defendant is without knowledge or information sufficient to form a belief as t the truth of the averment contained in paragraph 10 of Plaintiffs' complaint. By way further sorer Plaintiffs' characterization of the natural surface flow of water as flowing through "sto water facilities" is specifically denied. 11. Admitted in Par belief that the flow of water Plaintiffs' characterization of I facilities" is specifically deniec Denied in Part. It is specifically admitted upon information and nl its current locations has occurred for more than 21 years. natural surface flow of water as flowing through "stormwater LAW OFFICES OF LAMB McERLANIE PC • 24 EAST MARKET STREET • BOX 565 • WEST CHESTER, PA. 19381-0565 12. After a reaso ble investigation Defendant is without knowledge or information sufficient to form a belief as the truth of the averment contained in paragraph 12 of Plaintiffs' complaint. Therefore, said 4egations are denied and strict proof is demanded at the time of trial. 13. After a reason ble investigation Defendant is without knowledge or information sufficient to form a belief as t ?he truth of the averment contained in paragraph 13 of Plaintiffs' complaint. Therefore, said a legations are denied and strict proof is demanded at the time of trial. 14. Admitted in P . (Denied in Part. It is specifically admitted the Borough, through its employees, maintains sto water inlets and culverts in and under Borough roads. Plaintiffs' characterization of the physica nature and purpose of these stormwater inlets is denied. 15. After a reason 10 investigation Defendant is without knowledge or information sufficient to form a belief as t the truth of the averment contained in paragraph 15 of Plaintiffs' complaint. Therefore, said al gations are denied and strict proof is demanded at the time of trial. 16. After a reasona le investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment contained in paragraph 16 of Plaintiffs' complaint. Therefore, said all grations are denied and strict proof is demanded at the time of trial. 17. After a reasona e' investigation Defendant is without knowledge or information sufficient to form a belief as to he truth of the averment contained in paragraph 17 of Plaintiffs' LAW OFFICES OF LAMB MCERLA I PC • 24 EAST MARKET STREET • BOX 565 • WEST CHESTER, PA. 19381-0565 - h complaint. Therefore, said allegations are denied and strict proof is demanded at the time of trial. 18. After a reason bje investigation Defendant is without knowledge or information sufficient to form a belief as the truth of the averment contained in paragraph 18 of Plaintiffs' complaint. Therefore, said legations are denied and strict proof is demanded at the time of trial. By way of further answ r, the culvert and pipe located on Plaintiffs' property is not located on Borough property and up n information and belief was constructed as a private facility to permit Plaintiffs' driveway ac ess to their property. 19. Admitted in P Denied in Part. It is specifically admitted that Plaintiffs contacted the Borough to re u0st the Borough perform maintenance to the culvert pipe on Plaintiffs' property. Plaintiffs characterization of the proper maintenance of the culvert pipe is specifically denied. 20. Denied. It is d ied that the Borough performed maintenance of the culvert pipe on Plaintiffs' property. By wa of further answer, the Borough took limited actions in the past to clear debris from the area surr 'ding the culvert pipe on Plaintiffs' property. 21. Admitted. It i specifically admitted that the Borough has taken no action to clear debris from the area no legal responsibility for said 22. After a reasona sufficient to form a belief as to complaint. Therefore, said all trial. LAW OFFICES OF LAMB the culvert pipe on Plaintiffs' property as the Borough has pipe. investigation Defendant is without knowledge or information truth of the averment contained in paragraph 22 of Plaintiffs' tions are denied and strict proof is demanded at the time of PC • 24 EAST MARKET STREET • BOX 565 • WEST CHESTER, PA. 19381-0565 23. Admitted. 24. After a reasonable investigation Defendant is without knowledge or information sufficient to form a belief as the truth of the averment contained in paragraph 24 of Plaintiffs' complaint. Therefore, said legations are denied and strict proof is demanded at the time of trial. Count I 25. Defendant inc through 24 as if fully set forth by reference the answers contained in paragraphs 1 26. Denied. This verment is a conclusion of law to which a response is neither indicated nor required under t Pennsylvania Rules of Civil Procedure. 27. Denied. This verment is a conclusion of law to which a response is neither indicated nor required under a Pennsylvania Rules of Civil Procedure. By way of further answer, the Borough has not i eptionally channeled stormwater onto Plaintiffs' property; rather any water flowing over Plaintiffs' property is the result of natural descent through the watershed to the Conodoquinet Creek. 28. Denied. This erment is a conclusion of law to which a response is neither indicated nor required under th Pennsylvania Rules of Civil Procedure. 29. Denied. This a erment is a conclusion of law to which a response is neither indicated nor required under th Pennsylvania Rules of Civil Procedure. LAW OFFICES OF LAMB McERLA PC • 24 EAST MARKET STREET • BOX 565 • WEST CHESTER, PA. 19381-0565 30. Denied. Thisl'averment is a conclusion of law to which a response is neither indicated nor required under e Pennsylvania Rules of Civil Procedure. It is specifically denied that the Borough has any responsibility to maintain any improvements located on Plaintiffs' property related to the flow of stormwater and that the Borough has continued to discharge stormwater from Borough str4lets onto the Robinson Property 31. Denied. This averment is a conclusion of law to which a response is neither indicated nor required under tl?e Pennsylvania Rules of Civil Procedure. 32. Denied. This ?verment is a conclusion of law to which a response is neither indicated nor required under toe Pennsylvania Rules of Civil Procedure. WHEREFORE, Defen Court deny Plaintiffs, Gerald Judgment. , Camp Hill Borough respectfully requests that this Honorable Robinson and Mary C. Robinson's Request for Declaratory Count II 33. Defendant through 32 as if fully set forth 34. Denied. This indicated nor required under answer, the Borough has not any water flowing over Pla to the Conodoquinet Creek. LAW OFFICES OF LAMB by reference the answers contained in paragraphs 1 is a conclusion of law to which a response is neither e Pennsylvania Rules of Civil Procedure. By way of further entionally channeled stormwater onto Plaintiffs' property; rather s' property is the result of natural descent through the watershed PC • 24 EAST MARKET STREET • BOX 565 • WEST CHESTER, PA. 19381-0565 7 35. Denied. Thi?' averment is a conclusion of law to which a response is neither indicated nor required under the Pennsylvania Rules of Civil Procedure. 36. Denied. This averment is a conclusion of law to which a response is neither indicated nor required under toe Pennsylvania Rules of Civil Procedure. 37. Denied. This averment is a conclusion of law to which a response is neither indicated nor required under the Pennsylvania Rules of Civil Procedure. It is specifically denied that the Borough has any responsibility to maintain any improvements located on Plaintiffs' property related to the natural ow of stormwater to the Conodoquinet Creek watershed. 38. Denied. This ?verment is a conclusion of law to which a response is neither indicated nor required under tl?e Pennsylvania Rules of Civil Procedure. 39. Denied. This verment is a conclusion of law to which a response is neither indicated nor required under th Pennsylvania Rules of Civil Procedure. WHEREFORE, Defend t, Camp Hill Borough respectfully requests that this Honorable Court deny Plaintiffs Gerald P. obinson and Mary C. Robinson's Request for Injunctive Relief. 40. Defendant, Cam in paragraphs 1 through 39 as it LAW OFFICES OF LAMB NEW MATTER Hill Borough incorporates by reference the answers contained fully set forth herein. 70 24 EAST MARKET STREET • BOX 565 • WEST CHESTER, PA. 19381-0565 41. Defendant, B rough, is a local agency subject to the provisions of the Pennsylvania Political Subdivision Tort Claims Act and therefore is immune for any damages on account of any injury to prop y. 42 Pa. Cons. Stat. Ann. § 8541. 42. Defendant, Bo ough, asserts all defenses and immunities available to it pursuant to the Pennsylvania Political ubdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. §§ 8542 et seq. 43. Plaintiffs' alle d injuries were caused by Plaintiffs' own failure to maintain the private drainage facility on Pl intiffs' property and do not directly involve property and facilities owned and maintained by the Borough. 44. Plaintiffs' alleged injuries were not caused by any negligence of Borough or its employees. 45. Some or all of laintiffs' claims against the Borough are barred by the doctrine of contributory negligence. 46. Some or all OZ laintiffs' claims against the Borough are barred or must be reduced by the Comparative N igence Act. 47. Some or all of assumption of the risk. 48. Some or all of P of third parties for whose acts o LAW OFFICES OF LAMB ' claims against the Borough are barred by Plaintiff's intiffs' claims against the Borough are barred by the negligence omissions Borough has no legal responsibility. PC 24 EAST MARKET STREET • BOX 565 0 WEST CHESTER, PA. 19381-0565 49. Some or all Laches and Waiver. 50. Plaintiffs' WHEREFORE, Deff be dismissed with prejudice, other relief as may be approl Date: October 5, 2009 LAW OFFICES OF LAMB iffs' claims against the Borough are barred by the Doctrine of fails to state a claim upon which relief can be granted. it Camp Hill Borough respectfully demands that the Complaint that costs and fees be assessed against Plaintiff, along with such Respectfully submitted, LAMB McERLANE PC By: ?l David J. MacMain Attorney I.D. # 59320 By: Mark P. Thompson Attorney I.D. # 86338 24 East Market Street, Box 565 West Chester, Pennsylvania 19380 (610) 430-8000 Attorneys for Defendant, Camp Hill Borough PC • 24 EAST MARKET STREET • BOX 565 • WEST CHESTER, PA. 19381-0565 05/2PP° 15:33 021 I, GARY KLINE, MATTER are true and corr. that false statements herein unswom falsification to and Date: 5 CAMP HILL BOROUGH PAGE 02/02 VERIFICATION and affirm that the statements made i ? this ANSWER and NEW o the best of my knowledge, informati )n and belief. I understand made subject to the penalties of I8 P i. C.S.A. §4904 relating to LAMB MCERLANE PC By: David J. MacMain Attorney I.D. # 59320 By: Mark P. Thompson Attorney I.D. # 86338 24 East Market Street, Box 5 West Chester, Pennsylvania 1 380 (610) 430-8000 MARY C I THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GERALD P. ROBINSON ROBINSON, V. CAMP HILL BOROUGH, arles M. Suhr, Esquire vid J. Tshudy, Esquire North 2°d Street, 16`x' Floor irrisburg, PA 17101 7) 255-7356 PROOF OF SERVICE This is to certify that i this case a true and correct copy of Camp Hill Borough's Entry of Appearance, Answer and New after were served on October 5, 2009, upon the following persons in the following manner: 1 Date: October 5, 2009 LAW OFFICES OF LAMB Attorneys for Defendant, Camp Hill Borough CIVIL ACTION - EQUITY NO. 09-6072 LAMB McERLANE PC By: David J. MacMain Attorney I.D. # 59320 Mark P. Thompson Attorney I.D. # 86338 Attorneys for Defendant, Camp Hill Borough PC • 24 EAST MARKET STREET • BOX 565 0 WEST CHESTER, PA. 19381-0565 ° ?=^4T,'?4?Y OF THE 7009 OAT -O AM 19 : 15 i 11?Y vi`?1 1 GERALD P. ROBINSON AND MARY C ROBINSON, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-6072 CIVIL TERM V. CAMP HILL BOROUGH, : CIVIL ACTION - EQUITY Defendant PLAINTIFFS' REPLY TO NEW MATTER AND NOW comes Plaintiffs, Gerald P. Robinson and Mary C. Robinson, by and through their counsel, Stevens & Lee, and presents the following Reply to New Matter: 40. Paragraphs 1 through 39 of the Complaint are incorporated herein as if set forth at length. 41. Denied. Paragraph 41 is a conclusion of law to which no response is required, and it is therefore denied. 42. Denied. Paragraph 42 is a conclusion of law to which no response is required, and it is therefore denied. 43. Denied. It is denied that Plaintiffs' injuries were caused by Plaintiffs' own failure to maintain the Stormwater Facilities. To the contrary, and as set forth in detail in the Complaint which is incorporated herein by reference, Defendant is liable for the injuries suffered by the Plaintiffs. 44. Denied. Paragraph 44 is a conclusion of law to which no response is required, and it is therefore denied. 1 SLi 953662v1/104199.00001 45. Denied. Paragraph 45 is a conclusion of law to which no response is required, and it is therefore denied. 46. Denied. Paragraph 46 is a conclusion of law to which no response is required, and it is therefore denied. 47. Denied. Paragraph 47 is a conclusion of law to which no response is required, and it is therefore denied. 48. Denied. Paragraph 48 is a conclusion of law to which no response is required, and it is therefore denied. 49. Denied. Paragraph 49 is a conclusion of law to which no response is required, and it is therefore denied. 50. Denied. Paragraph 50 is a conclusion of law to which no response is required and it is therefore denied. WHEREFORE, the Plaintiffs respectfully request this Court to issue a decree in equity and judgment in their favor and against Defendant as requested in the Complaint, and all other relief as is just and proper. Date: October;-3 , 2009 Respectfully submitted, STEVENS & LEE Charles M. Suhr, PA No. 72923 David J. Tshudy, PA No. 86053 17 North 2nd Street, 16th Floor Harrisburg, PA 17101 (717) 255-7356 Attorneys for Plaintiffs, Gerald P. Robinson and Mary C. Robinson 2 SLl 953662v1/104199.00001 VERIFICATION We, Gerald P. Robinson and Mary C. Robinson verify that we are the Plaintiffs in the within action; that the attached Reply to New Matter is based upon the facts of which we have personal knowledge; that the language of the document is that of counsel and not our own; and that the facts set forth in the foregoing document are true and correct to the best of our knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date: October .U , 2009 Ge d P. Robinson 4/1 Date: October, 2009 ary C. inso 3 SU 953662v1/104199.00001 CERTIFICATE OF SERVICE I, CHARLES M. SUHR, ESQUIRE, certify that on this date, I served a certified true and correct copy of the foregoing PLAINTIFFS' REPLY TO NEW MATTER. upon counsel for Defendant, by depositing the same in the United States mail, postage prepaid, addressed as follows: David J. MacMain, Esquire Mark P. Thompson, Esquire Lamb McErlane PC 24 East Market Street, Box 565 West Chester, PA 19380 Charles M. Su ,Esquire Date: October.23 , 2009 4 SL I 953662A/10419%00001