Loading...
HomeMy WebLinkAbout04-2701NATHAN C. WOLF, ESQ. SUPREME COURT ID NO. 87380 37 SOUTH HANOVER STREET SUITE 201 CARLISLE PA 17013-3307 717-241-4436 SHIPPENSBURG TOWNSHIP : P.L.A.N. and HOWARD ALBRECHT, : Plaintiffs : BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP Defendant IN THE COURT OF COMMON PLEAS OF CUMBERIaKND COUNTY, PENNSYLVANIA CIVIL ACTION NO: 2004 - ~O/ IN MANDAMUS 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 an attorney and filing in writing with the court your defenses or objections to the claims set forth against yotu You are warned that if you fail to do so the case mayproceed without you and a judgment maybe entered against you bythe court without further notice for any money claimed in the complaint or for any other claim or relief requested bythe plaintiff. You maylose money or property or other fights 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 717-249-3166 SHIPPENSBURG TOWNSHIP P.L.A.N.: COURT OF COMMON PLEAS AND : CUMBERLAND COUNTY PENNSYLVANIA HOWARD ALBRECHT, PLAINTIFFS BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP, DEFENDANT : 2004-2701 CIVIL TERM :IN MANDAMUS NOTICE TO PI. EA_n TO: You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Date Respectfully Submitted TURO LAW OFFICES 4~o~ Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 (717) 245-!;)688 Attorney for SHIPPENSBURG TOWNSHIP P.L.A.N. AND HOWARD ALBRECHT, PLAINTIFFS BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP, DEFENDANT COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA 2004-2701 CIVIL TERM : 1N MANDAMUS PRELIMINARY OBJECTIONS Count I: Motion For More Specific Pleading 1. The Plaintiff's in the above captioned action filed a complaint In Mandamus on or about June 14, 2004. 2. Thereafter the Defendant, Board of Supervisors of Shippensburg Township was served by the sheriff with the complaint. 3. One Plaintiffis identified as Howard Albrecht, an adult individual residing at 23 Partridge Trail, Shippensburg Township, Cumberland County. 4. The other Plaintiff is identified as "Shippensburg P.L.A.N., a community group comprised of citizens of Shippensburg To,reship, Cumberland County, Pennsylvania". 5. Plaintiff Shippensburg P.L.A.N is not identified specifically which identity is essential to establishing with standing in a lVlandamus Action. 6. The Complain is defective, therefore, for failure to identify specifically who or what Shippensburg P.L.A.N is and the Defendan~I moves for a more specific pleading to not only to identity who comprises Shippensburg P.L.A.N but to establish whether or not each and every member is a resident of Shippensburg Township thus bringing standing to sue in Mandamus. Wherefore, all the above reasons, the defendant, Board of Supervisors, of Shippensburg Township, Cumberland County, Pennsylvania hereby requests the Court to Order Plaintiff's to file a more Specific Pleading thus conforming to the Rules of Civil Procedure. Count II: Motion to Strike 7. One of the Plaintiff's, Shippensburg P.L.A.N, is not identified with specificity as to who or what Shippensburg P.L.A.N is which is in violation of the Rules of Civil Procedure. 8. The failure of Plaintiff's to identify who or what Shippensburg P.L.A.N. is should now cause the Court to strike Shippensburg P.L.A.N as a Plaintiff. Wherefore, for all the above reason, the defendant, Board of Supervisors of Shippensburg Township, Cumberland County, Pennsylvania moves the Court to strike the Complaint for the failure to identify who comprises Shippensburg P.L.A.N. Count III: Lack of Capacity To Sue 9. PlaintiffShippensburg P.L.A.N is identified as a community group. 10. A community group does not have standing to sue in Mandamus; only identifiable Township residents have such capacity. 11. The failure of the Plaintiff's to identify the exact identity of such ~' community group" is an indication of lack of capacity to sue and therefore the Complaint should be stricken for failure to identify and aver that each and every member of such "community group" is, in fact, a Shippensburg Township, Cumberland County resident. Wherefore, for all the above reasons, the defendant, Board of Supervisors of Shippensburg Township, Cumberland County, Pennsylvania hereby request the Court to dismiss the complaint for lack of capacity to sue. Date Township Solicitor CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Preliminary Objections upon Nathan C. Wolf, Esquire, by depositing same in the United States Mail, first class postage pre-paid on the ~,_~ day of _ ,~--'(~ ('v' , 2004, from Carlisle Pennsylvania, addressed as follows: f Nathan C. Wolf, Fsquire 37 South Hanover Street, Suite 201 Carlisle, PA 17'013 TUR/~L.AW OFFICES R~,f'T~ r~, Esquir~e' 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688; FAX 717.245.2165 NATHAN C. WOLF, ESQ. SUPREME COURT ID NO. 87380 37 SOUTH HANOVER STREET SUITE 201 CARLISLE PA 17013-3307 717-241-4436 SHIPPENSBURG TOWNSHIP : P.L.A.N. and HOWARD ALBRECHT, : Plaintiffs.' BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CML ACTION : : NO: 2004 - : : IN MANDAMUS COMPLAINT IN MANDAMUS NOW come the plaintiffs, the Shippensburg Township P.L,h.N., and Howard Albrecht, by and through their attorney, Nathan C Wolf, Esquire, and file th/s complaint in mandamus, aven/ng as follows: 1. Plaintiff is Shippemburg P.LdLN., a community group comprised of citizens of Shippensburg Township, Cumberland Coun~ (Hereinafter referred to as "PLAN"). 2. Plaintiff Howard Albrecht is an adult individual residing at 23 Partridge Trail, Shippensbmg Township, Cumberland CourtW. 3. Defendant is the Board of Supervisors of Shippensburg Township, a duly elected municipal body, located within Cumberland County. (Hereinafter referred to as "Board"). 4. On or about March 29, 2004, the Building Permit Officer of Shippensburg Township, Linda Asper, issued building permit number 707 to Shippensburg Properties, L.L.P (hereinafter "Developer"). 5. Subsequent to the issuance of the building pen'nit, the Developer failed to post the building permit placard on the construction site. 6. Plaintiffs had no notice of the issuance of the building permit until on or about May 19, 2004, which notice was effected by the commencement of construction of a building byDeveloper. 7. On or about May20, 2004, Plaintiffs filed, through undersigned cotmsel, an appeal of the grant of building permit 707 with the Township Secretary. (A true and correct copy is attached hereto as Exhibit "A') 8. Plaintiffs appeal was based upon the fact that it believed Building Permit Number 707 was improperly issued by the Building Permit Officer becanse it failed to comply with express requirements contained in the Subdivision and Land Development Ordinance of Shippensburg Township. 9. Phintiffs sought a hearing on the matter before the Board of Supervisors of Shippensburg Township, which has jurisdiction to hear such appeals. 10. Pursuant to the Shippemburg Township Subdivision and Land Development Ordinance, the Board has the authority to hear this appeal. 11. Plainffff's counsel received a letter from the Township Solicitor, indicating that the appeal filed was not being accepted because it was not filed in a timely mariner. (A tree and correct copyis attached hereto as Exhibit "B'). 12. Plaintiffs were never given an oppommity to provide the Board with its position with regard to the timeliness issue, prior to the rejection of the appeal. 13. Phintiffs believe and therefore aver, that becanse of the Developer's failure to post the Building Permit Placard, as required bythe Shippembung Township Subdivision and Land Development Ordinance, that Plaintiffs were denied opportunity to have their appeal heard on its merits. 14. While the Subdivision and Land Development Ordinance of Shippensburg Township require the aggrieved party to file a written appeal within thirty (30) days of the action or decision being appealed, plaintiffs were without notice of the decision due to the applicant's failure to post the required building permit phcard, as required pursuant to Article VIII, Section 801 (8) of the Subdivision and Land Development Ordinance. 15. The Defendant's duty is ministerial in nature and not discretionary, and therefore the relief requested is within the Court's authority. 16. No other adequate remedy at hw exists which would provide relief to Plaintiffs. 17. Plaintiffs are currently engaged in litigation before the Department of Envh'onmental Protection's Environmental Heating Board, in efforts to challenge the grant of other permits necessary for the project. 18. Plaintiffs will suffer a detriment if the Developer is permitted to continue its construction, and this action would therefore enable the Defendant to halt the Developer's continued progress, otherwise the Developer and the Defendant would be rewarded for failing to abide the ordinance. WHEREFORE, the Plaintiffs pray that the Court issue an order directing the Board to accept the appeal filed byPlaintiffs and to direct the Board to conduct a heating on the appeal comistem with the provisions of the local ordinance and the Municipalities Planning Code. The Plaintiffs praythe Court to order such other further relief as maybe just and proper. A~fn yJ~D No. 87380 3~ Sot It Hanover Street, Suite 201 ~ ~, PA 17013-3307 (717) 241-4436 Attorney for plaintiffs VERIFICATION I, the undersigned, as counsel for phint/ffs, hereby verify that the facts stated in the above complaint are true and correct. I understand that false statements herein are made subject to the penalties of PA.C.S. Section 4904, relating to unswom falsification to authorities. June /~ ,2004 ~~ BEFORE THE BOARD OF SUPERVISORS SHIPPENSBURG TOWNSHIP, CUMBERLAND COUNTY IN RE: APPEAL OF: GRANT OF BUILDING PERMIT NUMBER 707. ISSUED MARCH 29, 2004, BY THE SHIPPENSBURG TOWNSHIP BUILDING PERMIT OFFICER AND NOW COMES the Shippensburg Township P.LA.N., Appellant, and Howard F. Albrecht, Appellant, by and through their counsel, Nathan C. Wolf, Esquire, and file this appeal of the grant of Building Permit Number 707, issued bythe Shippensburg Township Building Permit Officer on March 29, 2004, averring as follows: Appellant is Shippensburg Township P.LA.N., a community group comprised of landowners of Shippensburg Township, CumberLand County. (Hereinafter referred to as ~PLAI'e). Appellant Howard Albrecht is a resident and landowner of Shippensburg Township, Cumberland County and has standing to bring this appeal pursuant to Article VIII, Section 801, Subsection 13(a) of the Shlppensburg Township Subdivision and Land Development Ordinance. The Board of Supervisors of Shippensburg Township, Cumberland County has jurisdiction over tiffs appeal pursuant to Article VIII, Section 801, Subsection 13(a) of the Shippensburg Township Subdivision and Land Development Ordinance. 4. On March 25, 2004, the Building Permit Officer of Shippensburg Township received an application for building permit number 707. 5. On March 29, 2004, the Building Permit Officer of Shippemburg Township issued building permit number 707 to the applicant, Shippemburg Properties, L.L~P. Building Permit Number 707 was improperlyissued bythe Building Permit Officer becanse k fails to comply with express requirements contained in the Subdivision and Land Development Ordinance of Shippensburg Township. WHEREFORE, Appellants request that the Board of Supervisors of Shippensburg Townslfip fix a time and date for a hearing to take phce on this appeal and to permit the parties to appear and be heard as to whyBuilding Permit Number 707, was improperly issued and should therefore be revoked. Date: Respectful/~d, Carlisle, PA 17013-3307 717-241-4436 Counsel for Appellants VERIFICATION I, the undersigned, as counsel for the appellants, do herebyverifythat the facts set forth in this notice of appeal are tree and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. May 2t~, 2004 ' ruro Law ( ffices RON TURO, Esquire ROBERT J. MULDERIG, Esquire GALEN R. WALTZ, Esquire JAMES M. ROBINSON, Esquire DANIEL D. WORLEY, Esquire JAMES G. GAULT, Esquire NANCY A. PRESCOTT, Esquire May 25,2004 www. TuroL a w, com 28 South Pitt Street Carlisle, Pennsy)vania 17013 (717) 245-9688 (600) 562-9778 Fax (717) 245-2165 RECEIVED Nathan C. Wolf, Esquire 37 South Hanover Street, Suite 201 Carlisle, PA 17013 RE: Appeal of Grant of Building Permit 707 Dear Attorney Wolf, I am in receipt of an appeal in the above-captioned matter that you filed on behalf of P.L.A.N. and Howard Albrecht. I have reviewed the Shippensburg Township Subdivision and Land Development Ordinance, specifically Section 801, Subsection M(1) which you reference as Article VI/I, Section 801, Subsection 13(a). Section 801, Subsection M(1) states that an appeal must be filed, in writing, within thirty (30) days after the decision or action of the Building Permit Officer. As you state in the appeal, building permit 707 was issued on March 29, 2004. Your appeal is dated May 20, 2004, well after the expiration of the 30-day appeal period. The township will not accept the appeal because it is untimely filed. If you have any questions please do not hesitate to contact me, Sincerely, ~ Solicitor for Shippensburg Township SHERIFF'S RETURN - CASE NO: 2004-02701 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHIPPENSBURG TOWNSHIP P L A N VS SHIPPENSBURG TOWNSHIP BOARD OF REGULAR BRIAN BARRICK Cumberland County,Pennsylvania, says, the within COMPLAINT - MAND~J4US was served upon SHIPPENSBURG TOWNSHIP BOARD OF SUPERVISORS DEFENDANT , at 0930:00 HOURS, on the 9th day of July at 81 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 by handing to LINDA ASPER, TOWNSHIP CLERK, ADULT IN CHARGE a true and attested copy of COMPLAINT - MANDAMUS Sheriff or Deputy Sheriff of who being duly sworn according to law, the 2004 together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 14.80 Affidavit .00 Surcharge 10.00 .00 42.80 Sworn and Subscribed to before me this /~ day of C~ ~ A.D. otary So Answers: R. Thomas Kline NATHAN WOLF By: y Sheriff NATHAN C. WOLF, ESQ. SUPREME COURT ID NO. 87380 37 SOUTH HANOVER STREET SUITE 201 CARLISLE PA 17013-3307 717-241-4436 ATTORNEy FOR PLAINTIFFS SHIPPENSBURG TOWNSHIP IN THE COURT OF COMMON PLEAS P.L.A.N. and HOWARD ALBRECHT, Plaintiffs BOARD OF SUPERVISORS OF SHIPPENSBURG TOWNSHIP Defendant OF CUMBERLAND COUNTY, PENNSYLVANIA CML ACTION NO: 2004 - 2701 IN MANDAMUS PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY: Kindly mark th/s Action m Mandamus withdrawn with prejudice to the Plaintiffs. August 24, 2004 Distribution: Ron A. Tttro, Esquire for Defendant Nathan C Wolf, Esquire for Plaintiffs Respectfutly submitted, ESQ TRE