The URL can be used to link to this page

Home My WebLink About12-7080fN Vr rCn~Twwnrw COURT OF COMMON PLEAS 39th Judicial Disdict, County Of Cumberland NOTICE OF APPEAL FROM MAGISTERIAL DISTRICT JUDGE JUDGMENT/1 COMMON PLEI~S No. _ -1 D ~(~ (,~iyt I a___ NOTICE OF APPEAL Notice is given that the appellant has filed ~ the above Covet of Ganrrwn Pleas an appeal firom the wdgmerrt rendered by the Magisterial District Judge on the date and in the case retfererroed below. Hopewell Twp. Board of Supervisors 415 Thtrae Square Hollow Rd., Newburg H. Anthony Adams PA 17240 10/24/12 Hopewell Twp. Board of Supervisors ~ Christian G. Zook and Lena S. Zook noc~~ r rb. s~cau-nxa: ~ ~.a~rr oR ~-rrornar oR ~r MJ-09301-CV-0000203-2012 ~ %( )~ ~/~ (/v ~'- ~ This t~lodc w~l be sued ONLY when this rwtation is r+egtrired under Pa. ff appellant Cent (see Pa. R.C.P.D.J. No. 1001(6) in action R.C.P.D.J. Wo. 10086. Th~ Notice of Appeal, when reoeiw+ed by the Mail Dist-id Judge, wfil befia-e a Magisterial District Judge, A COMPLAINT MUST BE FILED operate as a SUPERSEDERS to the judgment for poases>rion in ttris rase. within twenty (201 days aeti~9r tfiing the NOTICE of APPEAL. sipr~ue w Rodrono0~ry v oepuq PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of farm to be used ONLY wfien appe9arrt was DEFENDANT (see Pa.R_C.P.D.J. No_ 1001(7) in ar.~ion batons Magisterial District Judge. IF NOT USED, distact- fivm caopy ofnotice of appeal to be served upon appelAee. PRAECIPE: To Protltorrotary Enter rule upon 1ltarne ofappeNee(s) appeNee(s), th file a oorrrpiaint in this appeal (Common Pleas No. )within 4wenty (20) days a1Eer service of nee or salter' entry of judgment of non pros. RULE: To , appeNee(s) nlisme dappslbe(~ Srgnatrrre al<appeMarrt orafiiOmey oragent (1) You are notified that a rule is hereby ertler'ed upon you th ~e a oompl8rnt ~ this appeal wither twer~r (20) days after the date of service of this rule upon you by personal service or by certified or regis6ered maul. (2) If you do not file a carrrpfaint within this fime, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mad is the date of the mailing. Date: .2o tlIN~/1lASNN3d ~3.Nf1Q~ ~t~b'1N38Wf1~ sr~aaaeapraaw-,orayo.o~,nr ~~ :g ~~ OZ hU~l 11~Z YOU MUST INCLUDE A COPY OF THE NOTiCEt OFD SilPT FORM YY1TH THLR NOTICE OF APPEAL. AOPC 3f2-05 (y~ ~~ ~~ ag33o~ OCT-29-2012t.M6N) 10:38 uopeWeil Tomnst~i.r~ COMMONWEALTF• OF PENNSYLVANIA @ Olt JUC~meMatTransenpt Civil COUNTY OF CUM6ERLANO Case Mpg. Dist No: MDJ-09-3-01 MDJ Name: Honorable H. Anihumr Adams 35 W est OrBnpe Sheet Shippe-~aiwrg, PA 1 TZi7 717,532 7676 Hopewell Twp Soand Of Supervisors 415 Three Square Holbw Rd Newburg. PA 1724Q CMlMian G Zook Lem S Zook ~rnxl ~ „4c~o~, Hopewea Twp Boars or supervisors v. Chratiart G Zook, Lena S Zook DodMt Na 1-CY-OOOOQ03-2012 Case Filed: 91282012 Judprtient for Delet~danl JeitlpnNat brDs~nt ~~.~0 10123/2012 ail-_'C~T~~ au-oo~-ct--oooa2~z 2m2 cl~rlwan e;zoac tiovswellT,~ l~o~a or .x~n~ tororena~m taz3rzo~z n~J-o93o~-cwoooo~~2-zo~Z t.ena s took t+ov«~.a'nw- ~a a .a,eenwnc Tor ov«+~wr~l 1at3~o~ s Dh~lvsllbn Sumaulry.~._.__.T_-,..T. .._ PJ~ MJ-O1i301-CV-0000ZQ3~Z01Z HopoM~ Twp 8o0r0 Of M3-~t-CV-0000203-2072 Fiopewe~ TiwN 8oM~0 Of ANY PARTY tIAS THE RIGHT T+O APPEAL. wlTrler >o GAYS AfT6R Ti1F BAR1I OF .IU06M01T or FILN16 ~- MOB aF APf+FAi. v11ITFl 'THE PROTHQNOorARYICLiR1C OF 170URf ~ GDrNON PL,il11i, CML DNM~lON. YOU MUST NCLUDE A COPY OF TNlsi NOTICE ~ FC11M~ MrITH if OIJR NOTICE OF APPEAL. Ad t-THERMgE PNI>flflDED MI THE RLIL~S OF CNIR PIeOr~IRiE F'OR MAHairr~erAC. vai'IaCT.wgow~. ~ THE JUOfiMENT NOLQER ~feC1'S 1'O E>rTEft '1'!E .NIDI~IT Af THE COLT OF Cil PLtiAR. ALL FiiRillBt PILE'~Cliidb MIAT COME FROM TtIE COURT OF COMMON PLFJIS AIO Iq FIIIt"1'tER PROC~ MAY IIE BY T1~ MIIMM'iI~11L Dli'tidCT ~E. UML.~ THE ~LlQlat~ir ~ @lIT~ IN 711E COURT OF C~OMM~MI PLfrAf. ANT+~01~N'x M w TNE~ ~190NlEMT MAY fItJE A RM4LilMT' FqR ENTRY OF>1atTNRACTION YMRN TF~ ~ OISTpICT.JUDOE IF TNE.KIp6MEMiT DEM701!''MYE IM FIp.L, SETTLES. OR CTFIBl1N~E COMPIII:d MI'1H THE JiJDCiMEMT. ' ~- l._.. i_ - ~ ~' ~ o~rla.wooe rt An~ary/1d~ms a ~ Oam J~ aAassrs Papelot2 prr~d:,oawao~z Era28AM OCT-29-201?(MON) ~Q:3~ ~OpeYell TOYRSh3p «ux~ ~t ~+~CKtr~i~.. Co~O~ALTA OF PENIVSyt~,~l~ COUNYY OF CUMBERlANO MOPEIMELLTOMiN'Hp NEMIbUPG lOPOtl6H SNIMENS~ OONOUGH SMfl~PENSIUNG 1- SpUTNAMFTpN TOWNSHIP DISTRICT JUDGE H• ANTHONY ADAMS NtaSlstetia) pisttiQ 09.3-01 ~r Yy~ Otan~e St SMIPPENSbt)NG, Pw 17757 October 2A, 207.Z ,~. ,., o~= TE1717-532-7676 F~1(717-532$306 a used ftlr normal agriculwral pperation The facts at the head established thart the Z,ooic IuoPer'h~ and farm operatbns. 1 comtnodiYles by an owner who Produces 7FIe act authorizes the direct commercial Sak of agricuttsl~l colmni0dity includes dairy. Products of them notwithstanding zonit>g prohl'bitions (§953). ABnal~tu iivestodc, bees and ittms intended for human consumption. "opeaeil IovnSh?R Hopewell Twp board Of Supervisors v. Christian G Zook, Ler~ S Zook Paficipant List Plata) HopeweN Twp Board OF 3-apenrisors 415 Three 3qusne Hollow Rd Newburg, PA 17240 pefendaalgs) t;hris5an G Zook 425 Ends Road Newburg, PA 17240 Lena S Zook 425 Ends Road Newburg. PA 17240 phintiff(s) Sauy ,) Vlratder Hopewell Township Sotie~lor 415 Three Square Holow Rd NpM-b~trg, PA 1 y240 ~rnx~rrrac~ov-7 Docket No.: MJ-08301-CV-0OOif20~2D12 IMD.I$ 316 Pape 2 d 2 PrNflOrt 1 O2fRU7l xivteruw }}_ F_.~M i~ p _~ ~~i? ~~~"r~ 29 p~~ 3- i ~~ t,~-P~~3Et,lal~~l~ ~~~~~~- `: E~Et;~~SYL4'~'~~li PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ~ __ "~ o8U a copy of the Notice of Appeal, Common Pleas No. ~ ~' ,upon the Magist~'ial District Judge designated therein on (date of service),ll Z~ 0~ r Z, ^ by rsonal setrv~ice~,,~ by (certified) (registered) mail, sender`s receipt a(ached hereto, and upon the appeNee, (ar ~~ g~'; Un -` ` ~~ ~~~! 20 Z ^ by personal service by (certified) (registered) mail, sender's receipt attached hereto. (SWOR (AFFIRMED AND SUBSCRIBED BEFORE ME THIS DAY OF V , 20 I ~~~ ~~t.~"' \ i nat vial be whom affidavit was made Signatu of alfrant N~ t~w~11~ Title of official ; ~ -- - My commission expires on naanal Seal Y ~ ANernan, i~ PubAc AOPC 312A - 05 ^ Complete items 1, 2, and 3. A1So item 4 ff Restricted Delivery Is de~ ^ Print your name and address on t so that we can return the card to ~ ^ Attach this card to the back of tht ,-q or on the front ff space permits. ~ -~ `~ 0 3 ° S W~ ~r~~ o ~.~~.e~sb ~ fi ~~ 2. /lrtide Number ~ (Transfer from servke IabeA ~ Sent To ~(L~~__ -_-~~- ------------------------------ ---- ------------- - - -- Street, Apt. No.: or PO Box No. ~~~_ ~ ~~--- ----------°-----• Cr'ty, State, ZIP+4 ` t _~ ~~~ ~~ j'1 ~~- ~ .. ~ .-. ,,,. Li ~ Pie $ • ry ?'~i Certified Fee ~ ~ f~~ t,~ • ~ ~ ~ w 4 Retum Receipt Fee ~,~Ppstm p (Endorsement Required) ° ° y~ ~ Restricted qq~~livery Fee ',; (EndorsemenTRequired) ~' '.i ~Q (t. V ~ Total Postage & Fees ~ .._ ... Sent To C] 3`lreet, Apt o.; '°' O ---- or PO Box No. (~~~ M1 ------------------- 1 _.._.__nadl~-_._~,. - ---------------------- Ciry, State, 2/P+4 A t,. ~ ( ~ -- -° ° ~~7-------,-r---°----°---- ~V~IN`7 ~ ~ [ Z4V ru ~. r-~ ~ ,. tti tll ~4 `` Postage $ PA ~ j~ Certified Fee - a ,•` rl.l ~~~o p Retum Receipt Fee ~ ~ • ~ (Endoreement Required) ^~ Here ~ Restricted Delivery Fee ; ii L(~q~} (Endorsement Required) ~,>,I lt- O ~ Total Postage & Fees ~ n+t' ~ _.~ ., Sent o ~ . a -------- --- -----~..---- ---- ------..._..---...------ 0 Street, Apt. o.; I r ` ,p ~ or PO Box No. - y-.~~ ~~ 1 ~._ I _~ Ciry, State, ZIP+4 ~ ~ ^ `~ 2~ ,l ' ~• a ~ ~ ~ f .~` cD 1 ~~ ~ ~ N ~ P~tage 5 A ~ t, ~ Certified Fee ~! ~ C7 Retum Receipt Fee dorsement Required) ~re J ) ~ , ' ' ~ ~ (En Restricted Delivery Fee ement Requred) ', ~ ~"~ C_ ~ (Endors ~ Total Postage & Fees ent a 1 , ` ` C" ~ A"'r N"o.; Street, P • ------ 3S V ~! N - ........ ...............' '""' ""' ~ LL-< C] o. x or PO Bo ...._._-- ----- -- ~ ~ Ciry State, ZIP+4 .iS: y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial : District Judge Judgment �rn ' 'F V � NC7 CHRISTIAN G. ZOOK AND LENA S. ZOOK Defendants DEFENDANTS' MOTION TO CONTINUE ORAL ARGUMENT Defendants move the Court to continue the oral argument on their Preliminary Objections currently scheduled for April 5, 2013. Counsel for Defendants is scheduled to be in California that day. This is Defendants' first motion to continue this oral argument. Counsel for Plaintiff has been contacted about this request for a continuance and does not object. Accordingly, good cause exists to continue this matter to the next oral argument date of May 10, 2013. Date: March 21, 2013 Respectfully submitted, David G. Cox, Esq. (OH Bar No. 0042724) 4240 Kendale Road Columbus, OH 43220 Tel: 614-457-5167 dcoxlaw @columbus.rr.com And Emily M. Bell Clymer Musser and Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17603 Tel: 717-299-7101 Fax: 717-299-5115 Attorneys for Defendants 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment V. DEFENDANTS' MOTION CHRISTIAN G. ZOOK AND TO CONTINUE ORAL ARGUMENT LENA S. ZOOK Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served by regular U.S. mail on this 2181 day of March, 2013, to the following: Sally J. Winder (ID No. 24705) P.O. Box 341 Newville, PA 17241 Tel: 717-776-6656 Attorney for Plaintiff David G. Cox, tsq. ('Oil Bar-ko. 0042724) 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment V. [PROPOSED] ORDER CHRISTIAN G. ZOOK AND LENA S. ZOOK Defendants This matter is before the Court on Defendants' motion to continue the oral argument on their—Preliminary Objections from April 5, 2013 to May 10, 2013. The Court finds that this is Defendants',first request for a continukInce,that defense counsel is scheduled to be out of town,and that Plaintiff's counsel does not object to this request. Consequently,good cause exists to grant Defendants' motion. Oral argument in this matter is scheduled for May 10, 2013. SO ORDERED DATE JUDGE, CO&T OF COMMON PLEAS CUMBERLAND COUNTY -sE Cc: ✓David G. Cox, Esq.,pro hac vice counsel for Defendants �m Emily M. Bell, Esq., local counsel for Defendants ry `':' Sally Winder, Esq., counsel for Plaintiff C ✓A L f HOPEWELL TOWNSHIP BOARD OF :IN THE COURT OF COMMON PLEAS OF SUPERVISORS :CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff r V. : No. 12- 7080 Civil Term m rn CHRISTIAN G. ZOOK AND -e u LENA S. ZOOK, his wife u ' Defendants : Appeal from Magisterial District J4 -,; Judgment ra :X ;zl_ AFFIDAVIT OF GREG ALLEMAN COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA I, Greg Alleman, do state the following as true and correct statements made upon my personal knowledge,understanding and belief 1. Zook's sales of agricultural commodities take place in a separate, although attached, portion of the building which is not a barn. 2. Zook processes meats and cheeses in portions of the building which are separate and distinct from the barn portion of the building. 3. No provision of the Hopewell Township Zoning Ordinance prohibits the sale of agricultural commodities. 4. The Statewide Building Code does not exempt spaces in which agricultural commodities are processed or manufactured. 5. The requirement that Zook obtain a land use permit does not prohibit Zook from engaging in agricultural operations. J, 6. The provisions of the Hopewell Township Zoning Ordinance do not prohibit direct commercial sales of agricultural commodities upon property owned and operated by Zook. 7. The Uniform Construction Code does require Zook to obtain a building permit for any building or portion thereof which is used for sale of agricultural commodities to consumers. 8. The Uniform Construction Code does require Zook to obtain a building permit for any building or portion thereof which is used for processing of meat or cheese. 9. Butchering,trimming, cutting,wrapping, labeling of meat is processing products of livestock. 10. Making cheese is the processing of dairy products produced on the farm and intended for human consumption. 11. Selling to CARE members is placing agricultural commodities in the hands of consumers. 12. Providing for orderly development of agricultural lands by way of a Township Zoning Ordinance is not impinging on the right to farm. 13. A Land Use permit application is used to determine whether a proposed construction project is in compliance with Zoning Ordinance set back,parking, signage, use, and stormwater management regulations. 14.A Land Use permit application is used to determine if there is a necessity for the landowner to submit a land development plan pursuant to the Township Subdivision and Land Development Ordinance. 15. A Land Use Permit was required for Zook's building project for his building which replaced the burned barn in late 2011. 16. Zook was told that if he intended to use the building as an"agricultural building"as defined under the Uniform Construction Code,then the project would be exempt from inspections. 17. Zook, as part of his 2010 building permit process also filed a Zoning Permit Application (Attachment A) stating his intended use was"hay storage and small equipment storage." 18. Zook never told Alleman he was installing a second cooler or butchering facilities when he submitted his building permit application and zoning permit application in October 2010. 19. Zook never revealed his intention to construct retail space and install a freezer/cooler in 2010 or in 2012. 20. At the time Zook applied for his 2011 permit,he said the butchering he intended to do was for his family use only. 21. I did not tell Zook what to write on any of his applications at any time in 2010 or any time after 2010. 22. I never said to Zook that his barn should have burned a year later or anything about different Supervisors in office. 23. When I inspected the Zook property in early 2012 I told him that the retail facilities and processing areas he had built were not exempt as an"agricultural building". 24. I had no reason to believe I needed to inspect the building in late 2011 and early 2012 as the intended use had been represented as uses which would be exempt under the definition of"agricultural building". a 25. The Land Use permit I had issued was for agricultural uses which would be exempt under the Uniform Construction Code and would be permitted uses under the Hopewell Township Zoning Ordinance. 26. What was constructed by Zook on his property contained spaces for retail sales which would be occupied by the public and would be used for processing of meat and dairy products all of which are not within the definition of"agricultural building". 27.I am a certified building code official pursuant to the rules,regulations,and certification procedures of the Commonwealth of Pennsylvania Department of Labor& Industry. This statement is made subject to the penalties of 18 Pa. C. S. Section 4904 relating to unsworn falsifications to authorities, which provides that if I make knowingly false statements I may be subject to criminal penalties. Date: rg man HOPEWELL TOWNSHIP : IN THE COURT OF COMMON PLEAS OF BOARD OF SUPERVISORS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • v. • CHRISTIAN G. ZOOK and • LENA S. ZOOK, Defendants : NO. 12-7080 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS CHRISTIAN AND LENA ZOOK TO THE PLAINTIFF'S COMPLAINT BEFORE EBERT, MASLAND and PECK, JJ. ORDER OF COURT AND NOW, this 1st day of July, 2013, upon consideration of the Preliminary Objections of Defendants Christian and Lena Zook to the Plaintiffs Complaint, and after oral argument on the matter, it is hereby ordered that Defendants' Preliminary Objections are OVERRULED, and Defendants are ordered to answer Plaintiffs Complaint within 20 days after notice of this Order. BY THE COURT, / *N,.,/x4/-6l'er Christ ee L. Peck, J. J. Winder, Esq. P.O. Box 341 Newville, PA 17241 Attorney for Plaintiff avid G. Cox, Esq. m �--r 4240 Kendale Road ,J} Columbus OH 43220 > Attorney pro hoc vice .cam sue ,- for Defendants s :-5 - ` :rc --� tv Copies' Nal "7/k/ I)ORIGINAL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term OF SUPERVISORS C: C-_ rl Plaintiff Appeal from Magisterial District Judge Judgment V. -' Cr CHRISTIAN G. ZOOK AND c `' LENA S. ZOOK Defendants DEFENDANTS' ANSWER WITH NEW MATTER UPON VERIFICATION Pursuant to Pa.R.C.P. 206.3, 206.3 and 76, Defendants Christian and Lena Zook, husband and wife, hereby present their answer upon verification to the Plaintiffs complaint. 1. Admit. 2. Admit. 3. Admit. 4. Admit. 5. Admit that Christian Zook rebuilt a barn that had been burned down, that the burned down barn included processing and storage areas for agricultural products which had previously been permitted by Plaintiff, that the new rebuilt barn simply replaced storage and processing areas for agricultural products that had existed in the burned down barn, and that the replaced processing and storage areas for agricultural products in the replacement barn had been permitted by Plaintiff. Deny that the application for the permit asked for the use(s) to which the rebuilt barn would be put. In all other respects this paragraph is denied. 6. Admit that Defendants' permit was revoked yet deny that the revocation was lawful. 7. Admit. 8. Deny that Defendants are subject to civil penalties or attorney fees and costs. 9. Deny that Defendants' rebuilt barn was required to obtain a zoning permit yet admit that Defendants obtained a permit anyway. 10. Deny that Defendants are in violation of the zoning ordinance yet admit that they obtained a proper permit. 11. Deny that Defendants were under any legal obligation to apply for a permit after August 9, 2012 yet admit that they did not apply for one after that date. 12. Admit. NEW MATTER 13. Defendants own approximately 75 acres of farmland located at 425 Enola Road, Newburg, PA and have lived at this address since at least 1997. 14. As of 1997, Defendants had a pre-existing barn located on their property that was used for various agricultural purposes, including but not limited to storing hay, storing animals, milking their cows, storage of farm implements and various other agricultural uses. 2 15. From 2006 to the present, Defendants have been selling the agricultural products that they produce at their farm directly to retail customers, and have been doing this from their barn. 16. From 2006 to the present, Defendants have produced at least 50% of the agricultural products that they have sold from their barn. 17. Prior to 2010, Defendants' retail sales in their barn included the use of a single cooler/freezer that measured 20 feet by 10 feet. 18. In 2010, Defendants wished to add on to their barn to allow for hay storage up top, for additional butchering facilities, and for the installation of a second cooler/freezer to make it more convenient for their customers. The second cooler/freezer that the Zooks wanted to install measured 31 feet by 17 feet. 19. Before adding onto their barn in 2010, Defendants showed their proposed drawings and plans, which included the proposed 31 x 17 cooler/freezer, to Hopewell Township employee Greg Alleman. 20. After Alleman reviewed their plans and drawings, he told Defendants that because they were engaged in agricultural operations their barn would not need to comply with the Pennsylvania Uniform Construction Code (PA UCC). 21. With the help of Alleman, who told them how to fill out the application, and in reliance on the representations of Alleman, the Zooks filled out an application for a building permit and on October 11, 2010 were issued a permit for this addition (which authorized the installation of the proposed 31 x 17 cooler/freezer) from Hopewell Township. (A copy of this 2010 permit application and permit is attached 3 to Defendants' preliminary objections, identified as Attachment A to the affidavit of Christian Zook). 22. Retail sales of the farm products produced by the Zooks at their farm were sold only to members of their religious denomination and to members of an organization called Communities' Alliance for Responsible Eco-Farming ("CARE"). 23. Defendants sold such agricultural products as vegetables, meat, chicken, eggs, milk and dairy products and honey, all of which was produced by them at their farm. 24. Township employee Alleman became a CARE member on November 5, 2010, agreeing that he wanted to "get food as close to nature as possible." (A copy of the Alleman CARE agreement is attached to Defendants' preliminary objections, identified as Attachment B to the affidavit of Christian Zook). 25. Once he became a CARE member, Alleman had been to the barn, had seen the retail sales area of the barn (which included the original 20 x 10 cooler/freezer and the new 31 x'17 cooler/freezer), and would buy products from the Zooks at their barn. 26. At no time during any of his visits to the barn did Alleman ever tell Defendants that their use of their barn, including but not limited to the two different sized coolers/freezers in their retail sales area, constituted an "impermissible use" of their barn or required a conditional use permit. 27. Although construction on the addition to the existing barn was completed sometime in late 2011, the new 31 x 17 cooler/freezer had yet to become operational. 4 28. On November 27, 2011, the entire barn burned down and the original 20 x 10 cooler/freezer and the new 31 x 17 cooler/freezer were destroyed. 29. Consequently, Defendants had to re-build their barn and had to obtain another building permit. 30. At the time they applied for their 2011 permit, Defendants told Alleman what they were going to do and that they were going to be doing the same thing, i.e., using their barn for the storage of hay, for butchering, milking, storage of farm implements, and the selling agricultural products from their barn directly to retail customers. 31. At no time did Alleman tell Defendants that this constituted an "impermissible use" of the barn or that they needed a conditional use permit. 32. In reliance on the representations of Alleman, Defendants applied for and obtained a permit to build a new barn to replace their prior barn, which permit was issued by the Township on December 16, 2011. 33. Alleman knew the Defendants relied on his representations because they applied for a permit to build a new barn and were going to resume retail sales of their agricultural commodities at their barn. 34. Construction of the new barn was not completed until approximately February 2012. 35. Although the old barn that burned down contained a 20 x 10 cooler/freezer and a 31 x 17 cooler/freezer, the new barn contained only one 31 x 17 cooler/freezer. 5 36. On August 9, 2012, Alleman, under the direction of the Township Supervisors, issued a letter revoking the Defendants' permit for their new barn, claiming the Zooks "misrepresented [their] intended use" of the barn. 37. After Defendants received his revocation letter, Alleman told them that their barn should have burned down one year later since after that year there would be different Hopewell Township Supervisors in office who would not have had a problem with Defendants' new barn. 38. On August 13, 2012, the Township code inspector issued a cease and desist letter to Defendants ordering them to "cease any beneficial use" of their barn. 39. The August 13, 2012 letter claimed that the barn did not fit the "criteria for an Agriculture Building" and also informed Defendants that if their barn "does indeed not qualify as an Agriculture Building" then it would be regulated by the PA UCC. (A copy of the August 13th letter is attached to Defendants' preliminary objections, identified as Attachment D to the affidavit of Christian Zook). 40. If Defendants' barn has to comply with the PA UCC, it would cost them thousands of dollars and prevent them from being economically viable. 41. On March 11, 2013, Township employee Alleman testified under oath before the Magisterial District Court for Cumberland County, MDJ09-03-01, in the matter of Commonwealth of Pennsylvania v. Christian Zook, Docket No. MJ-09301-NT-148- 2013. 42. In that case, Alleman testified that he knew about the Defendants' coolers in the existing barn that burned down, specifically (transcript of proceedings, pg. 30): 6 Q: Right. And you knew there was a prior barn there, right? A: Yes. Q: And you knew there were at least two coolers in that prior barn, correct? A: There were coolers in the barn. Q: That's right. And, in fact, you actually issued a permit for that prior barn, didn't you? A: For the prior barn, yes. 43. In that case, Alleman also testified that he helped Defendants complete the permit application for their new barn to replace the barn that burned down and that he included in the new permit exactly what the Defendants wanted, specifically (transcript of proceedings, pgs. 36-37): Q: Okay. Nonetheless, you did issue a second permit, which is Exhibit C-2; is that correct? A: For the new barn? Q: For the new barn. A: Yes. Q: Right. And you helped him fill this out. In fact, you told him what words to put on the — A: Well, I helped him fill it out, exactly what he wanted. Q: Yes. A: I didn't — 7 Q: So you knew what he wanted, and you helped him fill out the permit application -- A: Right. . Q: -- in accordance with what he wanted. A: And it's exactly what's on the permit. 44. In that case, Alleman testified that Defendants' rebuilt barn was constructed in compliance with the plans submitted with the permit application, specifically (transcript, pgs. 38-39): Q: Okay. So I'll ask my question again. The barn that was built was built according to these plans on Exhibit 6A. A: Yes, yes. 45. In that case, Alleman, even though he later tried to deny it, testified that Defendants' farm store/coolers would have been allowed under the law if it had been located in the back of the barn instead of in the front of the barn, specifically (transcript pgs. 40-41): Q: : Did you ever shut him down -- A: No. Q: -- even though you shopped there and bought some food? A: There are times that you have to let people live. There are things in every township that people do. Chris was doing this out of the back of his barn. His barn burnt down. If he had kept it in the back of the barn, maybe 8 nothing would have been said. He put it out in the front of the barn where it was very visible. Plus it was more modernized. There were a lot more things happening there than what he had been before. Q: So in the back of the barn, it's okay. But in the front of a barn, it's not okay. Is that your testimony? A: That's not what I'm saying, no. 46. Plaintiffs complaint is legally insufficient. 47. Plaintiffs complaint fails to state a cause of action. 48. Plaintiffs claims are barred by the Right to Farm Act. 49. Plaintiffs claims are barred by the Municipalities Planning Code. 50. Plaintiffs claims are barred by the doctrine of estoppel. 51. Plaintiffs complaint fails to state a cause of action for fraud. 52. Plaintiffs complaint fails to state that Defendants' conduct will have an adverse effect on the public's health and safety. 53. Plaintiffs conduct is arbitrary and capricious and not in accordance with law. PRAYER FOR RELIEF WHEREFORE, Defendants ask for the following relief: A. That Plaintiffs complaint be dismissed with prejudice; B. That Defendants be awarded their costs and fees, including but not limited to attorneys' fees: C. That the Court award such other relief as it deems just and equitable. 9 Date: July 19, 2013 Respectfully submitted, David G. Cox, Es*q. (OH Bar No. 0042724) 4240 Kendale Road Columbus, OH 43220 Tel: 614-457-5167 dcoxlaw @columbus.rr.com And Emily M. Bell Josh Autry Clymer Musser and Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17603 Tel: 717-299-7101 Fax: 717-299-5115 Attorneys for Defendants I verify that the statements made in this Answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: July 19, 2013 David G. Cox 10 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment V. DEFENDANTS' ANSWER CHRISTIAN G. ZOOK AND WITH NEW MATTER UPON LENA S. ZOOK VERIFICATION Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served by regular U.S. mail on this 19th day of July, 2013, to the following: Sally J. Winder (ID No. 24705) P.O. Box 341 Newville, PA 17241 Tel: 717-776-6656 Attorney for Plaintiff J sh AulK 11 HOPEWELL TOWNSHIP BOARD OF :IN THE COURT OF COMMON PLEAS OF SUPERVISORS :CUMBERLAND COUNTY, PENNSYLVANIA • Plaintiff • v. : No. 12- 7080 Civil Term CHRISTIAN G. ZOOK AND LENA S. ZOOK,his wife • Defendants : Appeal from Magisterial District Judge Judgment NOTICE TO PLEAD To: Christian G. Zook and Lena S. Zook: You are hereby notified to file a written response to the enclosed Motion to Strike Answer and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Sally J. nder, Esquire r .7 Attorney for Plaintiff 73 (7) Court ID 24705 `- P.O. Box 341 c Newville, PA 17241 r. 717 776 6656 = --; HOPEWELL TOWNSHIP BOARD OF :IN THE COURT OF COMMON PLEAS OF SUPERVISORS :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : No. 12- 7080 Civil Term CHRISTIAN G. ZOOK AND • LENA S. ZOOK,his wife Defendants : Appeal from Magisterial District Judge Judgment MOTION TO STRIKE ANSWER AND NEW MATTER Comes now the Plaintiff, Hopewell Township Board of Supervisors, by and through their attorney, Sally J. Winder, Esquire, and does move the Court to enter an Order striking off the Answer and New Matter filed on behalf of Defendants Zook for the following reasons: 1. Pa. R.C. P. 1024 addresses the requirement of all pleadings to be verified. Specifically, Pa. R.C.P. 1024(c) states that verification shall be made by one of the parties. 2. The verification of the Answer as filed is not verified by either of the Zooks who are the party Defendants in this action. 3. The verification is made by David G. Cox who is not a party to the action. 4. The verification states"I verify that the statements made in this Answer are true and correct."which statement is not sufficient to permit verification by counsel. 5. Further there is no verification of the New Matter which is extensive and includes factual allegations in paragraphs numbered 13 through 53. 6. New Matter is a pleading which requires verification under Pa. R.C. P. 1024. 7. The Pennsylvania Rules of Court, Pa. R.C.P. 1026, requires that a responsive pleading containing New Matter alleging facts not of record be endorsed with a Notice to Plead. 8. No Notice to Plead is attached or endorsed upon the Answer and New Matter. 9. Pa. R.C.P. 1026 states that where no Notice to Plead is included or endorsed upon the pleading no response is required to be filed within 20 days of the date of service of the pleading. 10. Failure of the Defendants to properly verify the Answer or verify in any manner,the New Matter is a violation of the Rules of Court and the Answer and New Matter are therefore improper and should be stricken and the allegations of the Complaint deemed admitted and the New Matter dismissed as though not filed. 11. Counsel for Defendants are knowledgeable as to the Pennsylvania Rules of Court as shown by prior pleadings properly verified by Defendants Zook. Counsel David Cox was specially admitted to practice in Cumberland County and the law firm of Clymer Musser and Conrad, P.C. in the persons of Emily Bell, Esquire and Josh Autry, Esquire have been listed as counsel for Defendants. Both Emily Bell and Josh Autry hold themselves out as attorneys admitted to practice in Pennsylvania. 12. No reason for failure to file a verification by either Christian Zook nor Lena Zook appears in the verification filed to the Answer. 13. No verification whatsoever is made as to the New Matter. 14. Failure of counsel to comply with the Rules of Court requires that the Motion to Strike be granted and that the Answer be deemed stricken as well as the New Matter be stricken. WHEREFORE, Plaintiff requests this Honorable Court enter an Order granting the Motion to Strike and stating that the Answer and New Matter are stricken from the record. Respectfully submitted, ./ // J Sally J. /inder Attorney or Plaintiff Court ID 24705 P.O. Box 341 Newville, PA 17241 (717) 776-6656 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of Plaintiffs Motion to Strike Answe and New Matter by depositing same in the United States Postal Service, first class postage prepaid on the 8th day of August, 2013 addressed as follows: David G. Fox, Esq 4240 Kendale Road Columbus, OH 43220 Emily Bell, Esq. Josh Autry, Esq. Clymer Musser and Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17608 l Sally J. inder, Esquire Court ID 24705 P.O. Box 341 Newville, PA 17241 (717) 776 6656 VERIFICATION I verify that the foregoing statements in the Motion to Strike Answer and New Matter are true and correct to the best of my knowledge, information, and belief and that as an elected member of the Board of Supervisors of Hopewell Township, I am authorized to execute this verification. These statements are made either upon personal knowledge or upon information received in the conduct of my position as Supervisor. This statement is made subject to the penalties of 18 Pa. C. S. Section 4904 relating to unsworn falsifications to authorities, which provides that if I make knowingly false statements I may be subject to criminal penalties. Date: /_ Danny G.+"•nester, Supervisor IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment 4 V. CHRISTIAN G. ZOOK AND i =, 1 LENA S. ZOOK r- Y-,-q Defendants �c Cn x NOTICE TO PLEAD To: Hopewell Township Board of Supervisors You are hereby notified to file a written response to the enclosed Defendants' First .Amended Answer With New Matter Upon Verification within twenty (20) days from service hereof or a judgment may be entered against you. Date: August 26, 2013 Respectfully submitted, David G. Cox, Esq. (OH Bar No. 0042724) 4240 Kendale Road Columbus, OH 43220 Tel: 614-457-5167 dcoxlaw @columbus.rr.com Attorney for Defendants r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment V. CHRISTIAN G. ZOOK AND LENA S. ZOOK Defendants DEFENDANTS' FIRST AMENDED ANSWER WITH NEW MATTER UPON VERIFICATION Pursuant to Pa.R.C.P. 206.3, 206.3, 76 and 1028(c)(1), Defendants Christian and Lena Zook, husband and wife, hereby present their first amended answer upon verification to the Plaintiffs complaint. 1. Admit. 2. Admit. 3. Admit. 4. Admit. 5. Admit that Christian Zook rebuilt a barn that had been burned down, that the burned down barn included processing and storage areas for agricultural products which had previously been permitted by Plaintiff, that the new rebuilt barn simply replaced storage and processing areas for agricultural products that had existed in the burned down barn, and that the replaced processing and storage 2 areas for agricultural products in the replacement barn had been permitted by Plaintiff. Deny that the application for the permit asked for the use(s) to which the rebuilt barn would be put. In all other respects this paragraph is denied. 6. Admit that Defendants' permit was revoked yet deny that the revocation was lawful. 7. Admit. 8. Deny that Defendants are subject to civil penalties or attorney fees and costs. 9. Deny that Defendants' rebuilt barn was required to obtain a zoning permit yet admit that Defendants obtained a permit anyway. 10. Deny that Defendants are in violation of the zoning ordinance yet admit that they obtained a proper permit. 11. Deny that Defendants were under any legal obligation to apply for a permit after August 9, 2012 yet admit that they did not apply for one after that date. 12. Admit. NEW MATTER 13. Defendants own approximately 75 acres of farmland located at 425 Enola Road, Newburg, PA and have lived at this address since at least 1997. 14. As of 1997, Defendants had a pre-existing barn located on their property that was used for various agricultural purposes, including but not limited to storing hay, storing animals, milking their cows, storage of farm implements and various other agricultural uses. i 3 15. From 2006 to the present, Defendants have been selling the agricultural products that they produce at their farm directly to retail customers, and have been doing this from their barn. 16. From 2006 to the present, Defendants have produced at least 50% of the agricultural products that they have sold from their barn. 17. Prior to 2010, Defendants' retail sales in their barn included the use of a single cooler/freezer that measured 20 feet by 10 feet. 18. In 2010, Defendants wished to add on to their barn to allow for hay storage up top, for additional butchering facilities, and for the installation of a second cooler/freezer to make it more convenient for their customers. The second cooler/freezer that the Zooks wanted to install measured 31 feet by 17 feet. 19. Before adding onto their barn in 2010, Defendants showed their proposed drawings and plans, which included the proposed 31 x 17 cooler/freezer, to Hopewell Township employee Greg Alleman. 20. After Alleman reviewed their plans and drawings, he told Defendants that because they were engaged in agricultural operations their barn would not need to comply with the Pennsylvania Uniform Construction Code (PA UCC). 21. With the help of Alleman, who told them how to fill out the application, and in reliance on the representations of Alleman, the Zooks filled out an application for a building permit and on October 1.1, 2010 were issued a permit for this addition. (which authorized the installation of the proposed 31 x 17 cooler/freezer) from Hopewell Township. (A copy of this 2010 permit application and permit is attached 4 to Defendants' preliminary objections, identified as Attachment A to the affidavit of Christian Zook). 22. Retail sales of the farm products produced by the Zooks at their farm were sold only to members of their religious denomination and to members of an organization called Communities' Alliance for Responsible Eco-Farming ("CARE"). 23. Defendants sold such agricultural products as vegetables, meat, chicken, eggs, milk and dairy products and honey, all of which was produced by them at their farm. 24. Township employee Alleman became a CARE member on November 5, 2010, agreeing that he wanted to "get food as close to nature as possible." (A copy of the Alleman CARE agreement is attached to Defendants' preliminary objections, identified as Attachment B to the affidavit of Christian Zook). 25. Once he became a CARE member, Alleman had been to the barn, had seen the retail sales area of the barn (which included the original 20 x 10 cooler/freezer and the new 31 x 17 cooler/freezer), and would buy products from the Zooks at their barn. 26. At no time during any of his visits to the barn did Alleman ever tell Defendants that their use of their barn, including but not limited to the two different sized coolers/freezers in their retail sales area, constituted an "impermissible use" of their barn or required a conditional use permit. 27. Although construction on the addition to the existing barn was completed sometime in late 2011, the new 31 x 17 cooler/freezer had yet to'become operational. 5 28. On November 27, 2011, the entire barn burned down and the original 20 x 10 cooler/freezer and the new 31 x 17 cooler/freezer were destroyed. 29. Consequently, Defendants had to re-build their barn and had to obtain another building permit. 30. At the time they applied for their 2011 permit, Defendants told Alleman what they were going to do and that they were going to be doing the same thing, i.e., using their barn for the storage of hay, for butchering, milking, storage of farm implements, and the selling agricultural products from their barn directly to retail customers. 31. At no time did Alleman tell Defendants that this constituted an "impermissible use" of the barn or that they needed a conditional use permit. 32. In reliance on the representations of Alleman, Defendants applied for and obtained a permit to build a new barn to replace their prior barn, which permit was issued by the Township on December 16, 2011. 33. Alleman knew the Defendants relied on his representations because they applied for a permit to build a new barn and were going to resume retail sales of their agricultural commodities at their barn. 34. Construction of the new barn was not completed until approximately February 2012. 35. . Although the old barn that burned down contained a 20 x 10 cooler/freezer and a 31 x 17 cooler/freezer, the new barn contained only one 31 x 17 cooler/freezer. 6 36. On August 9, 2012, Alleman, under the direction of the Township Supervisors, issued a letter revoking the Defendants' permit for their new barn, claiming the Zooks "misrepresented [their] intended use" of the barn. 37. After Defendants received his revocation letter, Alleman told them that their barn should have.burned down one year later since after that year there would be different Hopewell Township Supervisors in office who would not'have had a problem with Defendants' new barn. 38. On August 13, 2012, the Township code inspector issued a cease and desist letter to Defendants ordering them to "cease any beneficial use" of their barn. 39. The August 13, 2012 letter claimed that the barn did not fit the "criteria for an Agriculture Building" and also informed Defendants that if their barn "does indeed not qualify as an Agriculture Building" then it would be regulated by the PA UCC. (A copy of the August 13th letter is attached to Defendants' preliminary objections,,identified as Attachment D to the affidavit of Christian Zook). 40. If Defendants' barn has to comply with the PA UCC, it would cost them thousands of dollars and prevent them from being economically viable. 41. On March 11, 2013, Township employee Alleman testified under oath before the Magisterial District Court for Cumberland County, MDJ09-03-01, in the matter of Commonwealth of Pennsylvania v. Christian Zook, Docket No. MJ-09301-NT-148- 2013. 42. In that case, Alleman testified that he knew about the Defendants' coolers in the existing barn that burned down, specifically (transcript of proceedings, pg. 30): 7 Q: Right. And you knew there was a prior barn there, right? A: Yes. Q: And you knew there were at least two coolers in that prior barn, correct? A: There were coolers in the barn. Q: That's right. And, in fact, you actually issued a permit for that prior barn, didn't you? A: For the prior barn, yes. 43. In that case, Alleman also testified that he helped Defendants complete the permit application for their new barn to replace the barn that burned down and that he included in the new permit exactly what the Defendants wanted, specifically (transcript of proceedings, pgs. 36-37): Q: Okay. Nonetheless, you did issue a second permit, which is Exhibit C-2; is that correct? A: For the new barn? Q: For the new barn. A: Yes. Q: Right. And you helped him fill this out. In fact, you told him what words to put on the — A: Well, I helped him fill it out, exactly what he wanted. Q: Yes. A: I didn't— 8 Q: So you knew what he wanted, and you helped him fill out the permit application -- A: Right. Q: -- in accordance with what he wanted. A: And it's exactly what's on the permit. 44. In that case, Alleman testified that Defendants' rebuilt barn was constructed in compliance with the plans submitted with the permit application, specifically (transcript, pgs. 38-39): Q: Okay. So.I'll ask my question again. The barn that was built was built according to these plans on Exhibit 6A. A: Yes, yes. 45. In that case, Alleman, even though he later tried to deny it, testified that Defendants' farm store/coolers would have been allowed under the law if it had been located in the back of the barn instead of in the front of the barn, specifically (transcript pgs. 40-41): Q: Did you ever shut him down -- A: No. Q: -- even though you shopped there and bought some food? A: There are times that you have to let people live. There are things in every township that people do. Chris was doing this out of the back of his barn. His barn burnt down. If he had kept it in the back of the barn, maybe 9 nothing would have been said. He put it out in the front of the barn where it was very visible. Plus it was more modernized. There were a lot more things happening there than what he had been before. Q: So in the back of the barn, it's okay. But in the front of a barn, it's not okay. Is that your testimony? A: That's not what I'm saying, no. 46. Plaintiffs complaint is legally insufficient. 47. Plaintiffs complaint fails to state a cause of action. 48. Plaintiffs claims are barred by the Right to Farm Act. 49. Plaintiffs claims are barred by the Municipalities Planning Code. 50. Plaintiffs claims are barred by the doctrine of estoppel. 51. Plaintiffs complaint fails to state a cause of action for fraud. 52. Plaintiffs complaint fails to state that Defendants' conduct will have an adverse effect on the public's health and safety. 53. Plaintiffs conduct is arbitrary and capricious and not in accordance with law. PRAYER FOR RELIEF WHEREFORE, Defendants ask for the following relief: A. That Plaintiffs complaint be dismissed with prejudice; B. That Defendants be awarded their costs and fees, including but not limited to attorneys' fees: C. That the Court award such other relief as it deems just and equitable. 10 Date: August , 2013 Respectfully submitted, Davi G. Cox, Esq. (O Ba No. 0042724) 4240 Kendale Road Columbus, OH 43220 Tel: 614-457-5167 dcoxlaw @columbus.rr.com And Emily M. Bell Josh Autry Clymer Musser and Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17603 Tel: 717-299-7101 Fax: 717-299-5115' Attorneys for Defendants I verify that the statements made in this Answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: August , 2013 Christian Zook Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment V. DEFENDANTS' FIRST AMENDED CHRISTIAN G. ZOOK AND ANSWER WITH NEW MATTER LENA S. ZOOK UPON VERIFICATION Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served by regular U.S. mail on this 26th day of August, 2013, to the following: Sally J. Winder (ID No. 24705) P.O. Box 341 Newville, PA 17241 Tel: 717-776-6656 Attorney for Plaintiff David G. Cox 12 HOPEWELL TOWNSHIP BOARD OF :IN THE COURT OF COMMON PLEAS OF SUPERVISORS :CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff V. : No. 12- 7080 Civil Term CHRISTIAN G. ZOOK AND LENA S. ZOOK, his wife Defendants : Appeal from Magisterial District Judge Judgment C r :t c3 NOTICE TO PLEAD To: Christian G. Zook and Lena S. Zook: N) cans 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. 4 , 1) J L;V&— Sally J. VAinder,Esquire Attorney or Plaintiff Court ID 24705 P.O. Box 341 Newville,PA 17241 717 776 6656 HOPEWELL TOWNSHIP BOARD OF AN THE COURT OF COMMON PLEAS OF SUPERVISORS :CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff V. : No. 12-7080 Civil Term CHRISTIAN G. ZOOK AND LENA S. ZOOK, his wife Defendants : Appeal from Magisterial District Judge Judgment PRELIMINARY OBJECTIONS TO DEFENDANTS' ANSWER AND NEW MATTER Comes now,the Plaintiff, Hopewell Township Board of Supervisors, by and through its solicitor, Sally J. Winder,Esquire and does file the following Preliminary Objections and Demurrers to Defendants' Answer and New Matter: FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT 1. Defendants' Answer paragraph 5, 6, 8, 9, 10, 11 fail to conform to law or rule of Court in that the responses of paragraphs 5, 6, 8, 9, 10, 11 are not specific as required under Pa. R.C.P. 1029, in that the admissions and denials are not specific as to the allegations of the Complaint. 2. Therefore, for violation of the specific Rules of Rule 1029, all of the allegations of the Complaint should be deemed admitted. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT 3. Defendants' New Matter paragraphs 13 through 36 contain averments which are scandalous and impertinent all in violation of Rule 1028 (a) (2). 4. Therefore,the New Matter paragraphs 13 through 36 should be stricken as irrelevant, scandalous, and impertinent matter pursuant to Rule 1028 (a) (2). FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT 5. Defendants' New Matter asset forth in paragraphs 13 through 53 contain factual averments which are unverified in any manner. 6. Rule 1024 requires that the factual averments contained in the New Matter be verified in compliance with the provisions of Rule 1024. 7. For failure to properly conform to Rule 1024, all New Matter designated as paragraphs 13 through 53 should be deemed stricken from the pleadings. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT 8. Defendants' paragraph 19, 20, 21, 24, 39,41, 42, 43, 44, 45 all refer to documents and writings which are not attached to the pleading. 9. Defendants' have violated Rule 1019(i) for failure to attach the specific writings. 10. For failure to properly conform to Rule 1019(i) all New Matter referred to in Defendants' paragraph 19, 20, 21, 24, 39, 41, 42, 43, 44, and 45 should be stricken from the pleadings. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT 11. Pa.R.C.P. 1019(f) states that averments of time shall be specifically stated. 12. The validity of Defendants' claims and defenses is based upon the time at which retail sales occurred on Defendants' property. 13. Defendants' have failed to specifically state the time when retail sales were made in paragraph 22, 23, and 30. 14. By failing to state the times involved in these averments, Defendants have failed to comply with the specified Rule of Court and have failed to present any basis for any affirmative defenses attempted to be raised in the New Matter. DEMURRER 15. Defendants have attempted to plead affirmative defenses in paragraphs 46 through 51. 16. Affirmative defenses are governed by the provisions of Rule 1030 and are subject to all of the provisions of Rule 1019,Contents of Pleadings, General and Specific Averments. 17. The Defendants have not specified the material facts upon which they rely to assert each affirmative defense alleged in paragraphs 46 through 51, and have not stated a legally sufficient claim as to any of the affirmative defenses alleged in paragraphs 46 through 51. 18. Therefore,Defendants claims in paragraphs 46 through 51 should be dismissed. DEMURRER 19. Defendants have failed to verify any of the allegations of the New Matter many of which contain fact averments which are required to be verified under Rule 1024. 20. By failure to verify the factual averments of the New Matter,Defendants have failed to assert a legally sufficient claim. 21. Therefore,because the Defendants have failed to submit a legally sufficient claim the New Matter must be dismissed: WHEREFORE, Plaintiffs request this Honorable Court deem the Answer of Defendants to admit all of the allegations of the Complaint and Dismiss the New Matter for the reasons set forth above. Respectfully submitted, akt7 U oj�b-- Sally J. W' der,Esquire Attorney for Plaintiff Court ID 24705 P.O. Box 341 Newville, PA 17241 (717) 776 6656 VERIFICATION' I verify that the foregoing statements in the Preliminary Objections are true and correct to the best of my knowledge,information,and belief and that as an elected member of the Board of Supervisors of Hopewell Township,I am authorized to execute this verification. These statements are made either upon personal knowledge or upon information received in the conduct of my position as Supervisor. This statement is made subject to the penalties of 18 Pa, C. S. Section 4904 relating to unswom falsifications to authorities, which provides that if I make knowingly false statements I may be subject to criminal penalties. Date: ) 3 �UpervisoY HOPEWELL TOWNSHIP BOARD OF AN THE COURT OF COMMON PLEAS OF SUPERVISORS :CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff V. : No. 12-7080 Civil Term CHRISTIAN G. ZOOK AND LENA S.ZOOK,his wife Defendants : Appeal from Magisterial District Judge Judgment CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of Plaintiffs Preliminary Objections and Demurrer endorsed with a Notice to Plead by depositing same in the United States Postal Service, first class postage prepaid on the day of September,2013 addressed as follows: David G. Fox,Esquire Attorney for Defendants 4240 Kendale Road Columbus,OH 43220 Sally J. Winder,Esquire CtID 24705 P.O. Box 341 Newville, PA 17241 (717) 776 6656 IN THE COURT OF COMMON PLEAS OF rD { -� CUMBERLAND COUNTY, PENNSYLVANIA u,, -- ., -i c--, y HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term `° -.. OF SUPERVISORS " Plaintiff Appeal from Magisterial District Judge Judgment v. • CHRISTIAN G. ZOOK AND LENA S. ZOOK Defendants • DEFENDANTS' ANSWERS TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' ANSWER AND NEW MATTER Defendants Christian and Lena Zook hereby present their Answer to the Preliminary Objections filed by Plaintiff Hopewell Township. 1. Denied. Plaintiff claims that ¶15,6,8,9,10 and 11 "are not specific as to the allegations of the Complaint" but fails to specify how such paragraphs are "not specific." In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. At a minimum, the Defendants' Answer and New Matter substantially comply with the Civil Rules. Pa.R.C.P. 126 provides, in part, that the Civil Rules "shall be liberally construed" to achieve a "just" determination of every action or proceeding. Rule 126 also provides that a court "at every stage of any such action" may "disregard any error or defect of procedure" which does not affect the "substantial rights" of the parties. When construing Rule 126, the Supreme Court of Pennsylvania has stated that "equitable considerations in the form of a doctrine of substantial compliance" have been incorporated into Rule 126. See, e.g., Womer v. Hilliker, 589 Pa. 256 (2006). "Thus, while we look for full compliance with the terms of our rules, we provide a limited exception under Rule 126 to those who commit a misstep when attempting to do what any particular rule requires." Id. at 267-268. Accordingly, and at a minimum, Defendants' Answer and New Matter should be reviewed under a substantial compliance standard.' 2. Denied. Contrary to Plaintiffs claims, Paragraphs 5, 6, 9-11 of the Answer clearly admit some of the Plaintiffs allegations and deny other allegations. Moreover, Paragraph 8 is a denial. In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. Thus, Defendants' Answer constitutes compliance with the Civil Rules. 3. Denied. Plaintiff claims that Defendants' New Matter, 11113 — 36 "are scandalous and impertinent." However, Plaintiff does not explain why that is so. In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in 1 Defendants are not waiving any argument that their Answer with New Matter complies with the Civil Rules; indeed, they believe it does comply. 2 compliance with the Civil Rules: Thus, Plaintiffs claims are merely bald, unsupported statements. 4. Denied. "To be scandalous and impertinent, the allegations must be immaterial and inappropriate to the proof of the cause of action." Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Cmwlth. 1998). Because the allegations of¶¶13-36 all relate to Defendants' defenses, these paragraphs are not scandalous or impertinent. In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 5. Denied. Plaintiff claims that Defendants' New Matter contains factual averments "which are unverified in any manner." That is not true because Defendant Christian Zook's verification is in accordance with Rule 76, which defines "verified" as, in part, "supported by oath or affirmation or made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities." Mr. Zook's verification is almost verbatim from Rule 76. In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 6. Denied. Plaintiff claims that Defendants' New Matter must be verified "in compliance with" Rule 1024. Rule 1024 provides, in part, that the verification "shall state that the averment or denial is true upon the 3 signer's personal knowledge or information and belief and shall be verified." Mr. Zook's verification states it is true and correct and it was also verified. In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 7. Denied. If Mr. Zook's verification did not contain the magic words "upon my personal knowledge" then that is an inconsequential defect and leave should be granted to cure the alleged defect. See, e.g., Jubelirer v. Rendell, 904 A.2d 1030, 1033 (Pa. Super. 2006) ("Thus, at a bare minimum, a court confronted by a defective verification should grant leave to amend before dismissing the petition."). In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. Consequently, paragraphs 13-53 should not be stricken from the Answer. 8. Denied. Plaintiff claims that ¶1119,20,21,24,39,41-45 all refer to documents that "are not attached" to the Answer. However, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 9. Denied. Rule 1019(i) provides, in part, that if a defense "is based upon" a writing, the writing shall be attached to the pleading. Moreover, Rule 1019(i) provides that it is sufficient "to set forth the substance in writing." When documents in a pleading are referred to merely for background 4 purposes, the documents need not be attached to the pleading. See, e.g., JK Roller Architects. L.L.C. v. Tower Investments, Inc., Unreported Decision, Docket No. 02778, Mar. 17, 2003, 2003 WL 1848101, *4 (Pa. Com. Pl. 2003) (attached hereto as Exhibit A). In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 10. Denied. In this case, Defendants' defenses are not based on the documents themselves that are referenced in paragraphs 19, 20, 21, 24 and 39, i.e., the previous drawings, plans, permit applications and permits for the barn that burned down. To the contrary, Defendants' defenses are based on the facts surrounding the circumstances under which those documents were presented to the Plaintiff; in other words, the allegations that pertain to the documents merely provide background. With respect to the "document" referenced in ¶141-45, that "document" is a transcript of testimony provided by Plaintiff's agent, and the agent's testimony was quoted verbatim from the transcript, which satisfies the requirements of Rule 1019(i) which provides for "the substance in writing." In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. Thus, these paragraphs should not be stricken from the Answer. 5 11. Denied. Plaintiff suggests that Rule 1019(f) mandates that "averments of time shall be specifically stated." However, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 12. Denied. Plaintiff suggests that Defendants' claims are "based upon the time at which retail sales occurred on Defendants' property." That is not true. To the contrary, one of Defendants' defenses is based on the protections of the Right to Farm Act provisions of 3 P.S. 953(b), which provides that Defendants are protected if at least 50% of the agricultural products they sell comes from their own farm. Thus, Defendants have alleged that their retail sales of farm products have occurred from 2006 to the present. In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 13. Denied. Defendants have alleged that their retail sales of farm products have occurred from 2006 to the present. In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 14. Denied. None of Defendants' defenses are based on the specific time and date that retail sales were made at their barn because the specific date and time of those sales is not an element of any defense they need to prove. In addition, Plaintiff does not provide any case law or other 6 authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. Thus, Defendants have presented a basis for their affirmative defenses. 15. Denied. Defendants have pled affirmative defenses in paragraphs 46 — 51. In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 16. Denied. The standard of review for a Demurrer is clear. As stated by the Superior Court: All material facts set forth in the pleading at issue as well as all inferences reasonably deductible therefrom are admitted as true. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. (Emphasis added). Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001). When set against this standard, and in conjunction with the equitable considerations of Rule 126 (see If 1 above) and the liberal allowance of amendments of pleadings (see if 17 below), Plaintiffs first Demurrer fails. In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 17. Denied. Each defense of Defendant is pled under the "New Matter" heading and thus each defense logically incorporates all of the factual averments contained in ¶T13-45. In addition, Plaintiff does not provide 7 any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. Should the court find that these defenses are not pled with specificity, the proper remedy is to allow Defendants to file an amended answer. See, e.g., Connor v. Allegheny General Hosp., 501 Pa. 306, 311 (1983) ("In view of the policy that the right to amend should be liberally granted, and in view of the fact that the amendment in this case would not have worked a prejudice against appellee, it was an abuse of discretion for the trial court to refuse the proposed amendment."). 18. Denied. If Defendants' defenses are not pled with specific specificity, the proper remedy is to allow Defendants to file an amended answer. See, e.g., Connor v. Allegheny General Hosp., 501 Pa. 306, 311 (1983). In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 19. Denied. Plaintiffs second Demurrer is that Defendants have "failed to verify any of the allegations" contained in Defendants' New Matter. The standard of review for a Demurrer is clear. As stated by the Superior Court: All material facts set forth in the pleading at issue as well as all inferences reasonably deductible therefrom are admitted as true. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. (Emphasis added). 8 Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001). When set against this standard, and in conjunction with the equitable considerations of Rule 126 (see ¶1 above) and the liberal allowance of amendments of pleadings (see ¶17 above), Plaintiffs second Demurrer fails. Rule 76 defines "verified" as, in part, "supported by oath or affirmation or made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities." Rule 1024 provides, in part, that the verification "shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified." Mr. Zook's verification is almost verbatim to Rule 76 and, pursuant to Rule 1024, also states it is true and correct and was verified. In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 20. Denied. A court that is confronted with an allegedly defective verification "should grant leave to amend before dismissing the [pleading]." Jubelirer v. Rendell, 904 A.2d 1030, 1033 (Pa. Cmwlth. 2006). In addition, Plaintiff does not provide any case law or other authority for the proposition that Defendants' averments are not in compliance with the Civil Rules. 21. Denied. Even if Mr. Zook's verification is defective, which he denies, leave should be granted to file an amended answer with new matter. In addition, Plaintiff does not provide any case law or other authority for the 9 proposition that Defendants' averments are not in compliance with the Civil Rules. For the reasons stated above, Plaintiffs preliminary objections are not well taken and they should be denied. Date: October 8, 2013 Respectfully submitted, ak Okikk David G. Cox, Es u. (0 Bar No. 0042724) 4240 Kendale Road Columbus, OH 43220 Tel: 614-457-5167 dcoxlaw@columbus.rr.com And Emily M. Bell Josh Autry Clymer Musser and Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17603 Tel: 717-299-7101 Fax: 717-299-5115 Attorneys for Defendants 10 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. : No. 12-7080 Civil Term OF SUPERVISORS • Plaintiff : Appeal from Magisterial : District Judge Judgment v. : DEFENDANTS' ANSWER TO CHRISTIAN G. ZOOK AND : PLAINTIFF'S PRELIMINARY LENA S. ZOOK : OBJECTIONS TO DEFENDANTS' : ANSWER WITH NEW MATTER • Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served by regular U.S. mail on this 8th day of October, 2013, to the following: Sally J. Winder (ID No. 24705) P.O. Box 341 Newville, PA 17241 Tel: 717-776-6656 Attorney for Plaintiff David G. Cox (OH Bar No. 0042724) 11 EXHIBIT A • Not Reported in A.2d, 2003 WL 1848101 (Pa.Com.PI.) Judges and Attorneys Only the Westlaw citation is currently available. Pennsylvania Court of Common Pleas, Philadelphia County JK ROLLER ARCHITECTS, LLC Plaintiff, v. TOWER INVESTMENTS, INC., et. al. Defendants. No. 02778 JULY TERM 2002. March 17, 2003. Architectural firm sued clients for breach of contracts for architectural services and, alternatively, promissory estoppel and unjust enrichment. On clients' preliminary objections to complaint, the Court of Common Pleas, No. 02778 July Term 2002, Jones, J., held that: (1) gist of the action doctrine did not bar firm's unjust enrichment and promissory estoppel claims; (2) firm's collective references to corporate client and its owner as one entity failed to satisfy fact pleading requirement; (3) firm did not set forth sufficient facts to show owner's individual liability under contracts; and (4) complaint did not violate rule requiring pleader to attach copy of writing upon which any claim or defense was based. Preliminary objections are sustained in part and overruled in part. West Headnotes [1] ca KeyCite Citing References for this Headnote 13 Action -13II Nature and Form 13k26 Contract or Tort 13k27 Nature of Action 13k27(1) k. In general. Most Cited Cases Gist of the action doctrine, which precludes claims for allegedly tortious conduct where the gist of the conduct sounds in contract rather than tort, did not apply to claims for unjust enrichment and promissory estoppel pled by architectural firm against clients as alternative claims to action for breach of contracts for architectural services. [2] 2 KeyCite Citing References for this Headnote ,101 Corporations and Business Organizations 101II Disregarding Corporate Entity; Piercing Corporate Veil • . 101k1079 Actions to Pierce Corporate Veil 101k1085 Pleading :.101k1085(1) k. In general. Most Cited Cases (Formerly 101k1.7(1)) Architectural firm's insistence on collectively referring to corporate client and its owner as one entity throughout breach of contract complaint failed to satisfy state's requirement of fact pleading. [3] Y. KeyCite Citing References for this Headnote 95 Contracts -95VI Actions for Breach >95k331 Pleading .95k333 Allegation or Statement of Contract or Promise 95k333(7) k. Parties to contract. Most Cited Cases Architectural firm's complaint which alleged breach of seven contracts for architectural services, to which client's owner was not a party, did not set forth sufficient facts to show owner's individual liability under contracts. 141 KeyCite Citing References for this Headnote 101 Corporations and Business Organizations 101II Disregarding Corporate Entity; Piercing Corporate Veil 101k1079 Actions to Pierce Corporate Veil ,101k1085 Pleading 101k1085(4) k. Alter ego, instrumentality, or agency in general. Most Cited Cases (Formerly 101k1.7(1)) Averments made by architectural firm relating to alleged individual liability of corporate client's owner under an "alter ego" theory, all of which were conclusions of law, were not enough to sustain cause of action against owner under a theory of piercing the corporate veil. 1,51 KeyCite Citing References for this Headnote. :=302 Pleading 302X Exhibits 302k308 k. Written instruments or copies thereof filed with pleading. Most Cited Cases Complaint's reference to "various agreements for provision of architectural services" did not violate rule requiring pleader to attach copy of writing upon which any claim or defense was based, where architectural firm's claims against clients were not based Upon the "various agreements" and such language was included solely for the purposes of background. Rules Civ.Proc., Rule 1019(i), 42 Pa.C.S.A. MEMORANDUM OPINION JONES, J. *1 Before the Court are the Preliminary Objections of Defendants, Tower Investments, Inc. ("Tower"), Delaware 1851 Associates, LP ("1851"), Northern Liberties Development, LP ("NLD"), Reed Development Associates, Inc. ("RDA") and Bart Blatstein ("Blatstein"), to the Amended Complaint (the "Complaint") of Plaintiff JK Roller Architects, LLC ("JK Roller"). For the reasons fully set forth below, Defendants' Preliminary Objections are sustained in part and overruled in part. BACKGROUND The instant lawsuit arises out of seven (7) separate contracts for architectural services between Plaintiff and several of the Defendants. With respect to each of the foregoing contracts, Plaintiff has brought causes of action against certain Defendants for breach of contract and, alternatively, promissory estoppel and unjust enrichment. Plaintiff alleges, inter a/ia, that Defendants have failed to pay for services rendered pursuant to the foregoing agreements. DISCUSSION A. The Gist of the Action Doctrine Is Inapplicable At Bar j112 In their Preliminary Objections, Defendants assert that Plaintiff's unjust enrichment and promissory estoppel claims are barred by gist of the action doctrine. The gist of the action doctrine precludes claims for allegedly tortious conduct where the gist of the conduct sounds in contract rather than tort. Redevelopment Auth. of Cambira v. Intl. Ins. Co., 454 Pa.Super. 374, 391, 685 A.2d 581, 590 (1996)(emphasis added); Phico Ins. Co. v. Presbyterian Med. Services Corp., 444 Pa.Super. 221, 228, 663 A.2d 753, 757 (1995). This doctrine does not apply to alternative causes of actions based upon implied or constructive contracts, such as the claims for unjust enrichment and promissory estoppel pled by Plaintiffs.FN1 Accordingly, Defendants' Preliminary Objections based on the gist of the action doctrine are overruled. FN1. The Pennsylvania Rules of Civil Procedure permit causes of action to be pled in the alternative. Pa.R.C.P. 1020(c). Unjust enrichment and promissory estoppel are proper alternative causes of action to a breach of contract claim. See e.g., Birchwood Lakes Community Assn, Inc. v. Comis, 296 Pa.Super. 77, 85, 442 A.2d 304, 308 (1980); Duane Morris v. Todi, 2002 WL 31053839 (Pa.Com.Pl.2002). B. Defendants' Have Failed To State A Claim Against Blatstein Individually Defendants have demurred to Counts I through XXI of the Complaint on the basis that Plaintiff has "improperly made Blatstein a party to the instant lawsuit." Def. Prelim: Obj. at 1115-18. Among other things, Defendants argue that: 1) Plaintiff has not stated a valid basis for imposing individual liability against Blatstein; and 2) Plaintiff has failed to state a valid claim against Blatstein under a theory of alter ego liability. Id. A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. Bailey v. Storlazzi, 1999 Pa.Super. 97, 729 A.2d 1206, 1211 (1999). For the purposes of reviewing preliminary objections asserting legal insufficiency, "all well-pleaded material, factual averments and all inferences fairly deducible therefrom" are presumed to be true. Tucker v. Philadelphia Daily News, 2000 Pa.Super. 183, 757 A.2d 938, 941-42 (2000). However, the pleader's conclusions or averments of law are not considered to be admitted as true. County of Allegheny v. Commw., 507 Pa. 360, 372, 490 A.2d 402, 408 (1985). Thus, the inquiry at bar is whether Plaintiff has set out material, relevant, well-pleaded facts which, if true, state a claim against Blatstein individually upon which relief may be granted. This court finds that Plaintiff has failed to satisfy its burden. *2 In the Complaint, Blatstein is defined as "an adult individual." Compl. ¶ 6. The Complaint further states: 'y[i]n his business dealings, Blatstein routinely and customarily holds himself out as Tower Investments and/or Tower, Investments, Inc." Id. The only other references to Blatstein individually are contained in ¶¶ 7 and 8 which state: 7. It is believed and therefore averred that Blatstein is the dominant owner/individual who controls Tower Investments and Tower Investments, Inc., which in turn own [ sic ] and control [ sic ] defendants Delaware 1851, Northern Liberties, and Reed, and that he uses all of these entities as his alter egos, It is further believed and therefore averred that Blatstein wholly ignores the separate status of Tower Investments and Tower Investments, Inc., Delaware 1851, Northern Liberties, and Reed and so dominates and controls the affairs of those entities that the separate existence of each is merely a sham. 8. At all relevant times herein, Blatstein orally ensured plaintiff that Tower Investments, Inc. and/or other entities acting as Blatstein's alter ego would pay plaintiff for services rendered in connection with agreements set for in paragraphs 10, 37, 63, 87, 114, 138 and 161 of this Complaint and that Roller relied upon these representations to his detriment. Compl. ¶¶ 7, 8. Thereafter, Plaintiff makes no reference to Blatstein as an individual, but rather cryptically refers to Defendants Tower Investments, Inc. and Blatstein "collectively ... as 'Tower" ' Id. at ¶ 9, 490 A.2d 402. This collective definition of defendants Tower and Blatstein is misleading. 1,21 72 Should Plaintiff wish to assert a contract or quasi-contractual claim against Blatstein, it must do so specifically, and not lump the claims against him with those brought against the corporate entity. Plaintiff's insistence on collectively referring to Blatstein and Tower as one entity throughout the Complaint fails to satisfy Pennsylvania's requirement of fact pleading. Smith v. Wagner, 403 Pa.Super. 316, 319, 588 A.2d 1308, 1310 (1991); Santiago v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 418 Pa.Super. 178, 185, 613 A.2d 1235, 1238 (1992) ("[u]nder the Pennsylvania system of fact pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint"); Sevin v. Kelshaw, 417 Pa.Super. 1, 7, 611 A.2d 1232, 1235 (1992). The purpose behind Pennsylvania's fact pleading requirement is to "give the defendant notice of what the plaintiffs' claim is and the grounds upon which it rests, thus allowing the defendant to prepare a defense." Alpha Tau Omega Fraternity v. Univ. of Pennsylvania, 318 Pa.Super. 293, 298, 464 A.2d 1349, 1352 (1983). As plead, it can not be discerned from the Complaint what conduct is being attributed to Blatstein and which is being attributed to Tower. j3]. ., This case is based upon seven (7) contracts to which Blatstein was not a party. As such, the Complaint, when read as a whole, does not set forth sufficient facts to show Blatstein's individual liability, even in the most general terms. Now this court must look to whether Plaintiff has asserted a valid "alter ego" claim against Blatstein. *3 As a preliminary matter, it must be noted that a strong presumption exists in Pennsylvania against disregarding the corporate form. Wedner v. Unemployment Compensation Bd. of Review, 449 Pa. 460, 464, 296 A.2d 792, 794 (1972). "Piercing the corporate veil is the exception, and courts should start from the general rule that the corporate entity should be upheld unless specific, unusual circumstances call for [such] an exception." First Realvest, Inc. v. Avery Builders, Inc., 410 Pa.Super. 572, 600 A.2d 601, 604 (1991). Under Pennsylvania law, the following factors are to be considered in determining whether to pierce the corporate veil: 1) undercapitalization; 2) failure to adhere to corporate formalities; 3) substantial intermingling of corporate and personal affairs; and 4) use of the corporate form to perpetrate a fraud. Lumax Indus. v. Aultman, 543 Pa. 38, 669 A.2d 893 (1995); Village at Camelback Prop. Owners Ass'n. Inc. v. Carr, 371 Pa.Super. 452, 461, 538 A.2d 528, 533 (1988), aff'd 524 Pa. 330, 572 A.2d 1 (1990). .[A]- , Ea In order to withstand a demurrer, Plaintiff must set forth the conduct which Blatstein allegedly engaged in that would bring his actions within the parameters of a cause of action based on a theory of piercing the corporate veil. Lumax, 543 Pa. at 38, 669 A.2d at 893. While it is not necessary to set forth the evidences by which facts are to be proved, it is essential that the facts the pleader depends upon to show liability be averred. Id. ( quoting Frey v. Dougherty, 286 Pa. 45, 48, 132 A. 717, 718 (1926)). FN2 The Complaint, as pled, fails to satisfy this burden. As previously stated, Blatstein's name is mentioned in only three paragraphs of the twenty-one (21) count Complaint. All the averments relating to Blatstein's alleged liability under an "alter ego" theory contained in the Complaint are conclusions of law and are not enough to sustain this cause of action. FN2. Defendants reliance upon in Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983) is misplaced. In Wicks, the Pennsylvania Supreme Court examined the differences between participation theory and piercing the corporate veil. Participation theory, in simple terms, is a theory which imposes personal liability on corporate officers or shareholders where they have personally taken part in the actions of the corporation. Id. at 621, 470 A.2d at 89-90. Plaintiff's complaint asserts no facts which would support a claim based on participation theory. As such, this court finds that, at this time, Plaintiff has failed to plead sufficient facts to state a claim against Blatstein under a theory of piercing the corporate veil. Accordingly, Defendants' Preliminary Objections relating to Blatstein are sustained and the claims against Blatstein individually are dismissed without prejudice. Defendants will be permitted to file a Second Amended Complaint to correct the pleading deficiencies as to Blatstein within twenty (20) days from the date of entry of this Order. C. Paragraph 9 of the Complaint Does Not Violate Rule 1019(i) [5] El Finally, Defendants assert that Plaintiff has violated Rule 1019(i) by failing to attach the "various agreements" which are referred to in ¶ 9 to the Complaint: 9. Roller has entered into various agreements for the provision of architectural services with Tower Investments, Inc. and Blatstein (collectively referred to herein as "Tower"). Through the course and conduct of these dealings, Roller has conducted business with Tower on regular [ sic ] and continuous basis for over seventeen (17) years and all conditions precedent to Roller's right to recover have been satisfied. *4 Compl. ¶ 9 (emphasis added). Pursuant to Rule 1019(i): (i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing. Pa.R.C.P. 1019(i). Based upon the plain language of the Complaint, it is clear that Plaintiff's claims are not "based" upon the "various agreements" referred to in 119 and that such language was included solely for the purposes of background. Plaintiff has attached all the agreements at issue. Accordingly, Rule 1019(i) is inapplicable as respects ¶ 9. As such, Defendants' Preliminary Objection is overruled. CONCLUSION For the above-stated reasons, this Court hereby finds as follows: 1. Defendants' Preliminary Objections relating to Blatstein are sustained. Plaintiff's claims against Blatstein individually hereby are dismissed without prejudice. Defendants will be permitted to file a Second Amended Complaint to correct the pleading deficiencies as to Blatstein within twenty (20) days from the date of entry of this Order. 2. The remainder of Defendants' Preliminary Objections are overruled. This Court will enter an Order consistent with this Opinion contemporaneously. ORDER and MEMORANDUM AND NOW, this 17th day of March, 2003, upon consideration of Defendants' Preliminary Objections to Plaintiffs' Amended Complaint, all responses in opposition, the respective memoranda, all matters of record, and in accordance with the Memorandum Opinion filed contemporaneously with this Order, it hereby is ORDERED and DECREED that said Preliminary Objections are overruled in part and sustained in part. 1. Defendants' Preliminary Objections relating to Defendant Bart Blatstein ("Blatstein") are SUSTAINED. Plaintiff's claims against Blatstein individually hereby are DISMISSED without prejudice. Plaintiff's will be permitted to file a Second Amended Complaint to correct the pleading deficiencies as to Blatstein within twenty (20) days from the date of entry of this Order. 2. The remainder of Defendants' Preliminary Objections are OVERRULED. Pa.Com.P1.,2003. JK Roller Architects, L.L.C. v. Tower Investments, Inc. Not Reported in A.2d, 2003 WL 1848101 (Pa.Com.Pl.) Judges and Attorneys (Back to top) Judges Judges • Jones, Hon. Charles Thomas Jr. Commonwealth of Pennsylvania Court of Common Pleas, 52nd Judicial District Lebanon, Pennsylvania 17042 Litigation History Report 1 Profiler END OF DOCUMENT (c) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted In triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CABS (entire caption must be stated in full) HOPEWELL TOWNSHIP BD, OF SUPERVISORS TMtv_: C-n C_ CHRISTIAN G. ZOOK AND LENA S. ZOOK ^� No. 12-7080 CIVILy� C C.,' 1. State matter to be argued(i.e.,plaintiffs motion for new trial, defendant's demurreab n� 1 complaint,etc.): pLAINTIFFS PRELIMINARY OBJECTIONS AND DEMURRER 2. Identify all counsel who will argue cases: (a) for plaintiffs: SALLY J. WINDER, ESQ, P.O. BOX 341 NEWVILLE, PA 17241 (Name and Address) (b) for defendants: OAVOG.FOX,E$0,4246 MMALEFO.,COLLIMI 6,OH43M,EMILY BELL,M CLYMER MUSSER&COMM,PC.P.O.BOX 1766,LANCASTERNA17566-1766 (Name and Address) 3. l will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: DECEMBER 20.2013 SALLY J. WINDER Signatpe MA your me PLAINTIFF Date: NOV 25, 2013 Attorney for INSTRUCTIONS: 1,Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary)before argument. 2.The moving party shall file and serve their brief 14 days prior to argument 3.The responding party shall file their brief 7 days prior to argument. 4.If argument is continued new briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary)after the case is rellsted. � - ��" r No. 12-7080 1 L F-4 0 F1 'mF PRO THONO TA1-Cf Clymer Musser& Conrad, P.C. Joshua M. Autry, Esquire MI DEC -6 PM 3: 17 I.D. No. 208855 CUMBERLAND COUNTY 408 West Chestnut Street PENNSYLVANIA Lancaster, PA 17603 (717) 299-7101 ATTORNEYS FOR DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment V. CHRISTIAN G. ZOOK AND PRAECIPE TO ENTER APPEARANCE LENA S. ZOOK Defendants PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance as local counsel on behalf of Defendants Christian G. Zook and Lena S. Zook, in the above referenced matter. Ohio attorney, David G. Cox, has been admitted pro hac vice to serve as primary counsel defendants in this case. Respectfully Su itted, Jo ua . Aut squire Pa. ID 8459 Clymer Musser & Conrad, P.C. 408 West Chestnut Street Lancaster, PA 17603 Dated: 12/5/13 (717) 299-7101 phone, (717) 299-5115 fax No. 12-7080 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12-7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment V. CHRISTIAN G. ZOOK AND Entry of Appearance LENA S. ZOOK Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served by regular U.S. mail on this 5th day of December 2013,to the following: Sally J. Winder(ID No. 24705) P.O. Box 341 Newville, PA 17241 Tel: 717-776-6656 Attorney for Plaintiff David G. Cox, Esq. (Oh Bar No. 0042724) 4240 Kendale Road Columbus, OH 43220 Tel: 614-457-5167 dcoxlaw @columbus.rr.com Candidate for admission pro hac vice for Defendants Respectfully submitt d, By: Josh M. Au e Date: Dec. 5, 2013 Attorney fo efendants HOPEWELL TOWNSHIP : IN THE COURT OF COMMON PLEAS OF BOARD OF SUPERVISORS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • v. • CHRISTIAN G. ZOOK and • LENA S. ZOOK, • Defendants : NO. 12-7080 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS BEFORE GUIDO, MASLAND and PECK, JJ. ORDER OF COURT AND NOW, this 23rd day of December, 2013, upon consideration of Plaintiff's Preliminary Objections, and following oral argument held on December 20, 2013, Plaintiff's Preliminary Objections are denied. BY THE COURT, Christ lee L. Peck, J. • Sally J. Winder, Esq. P.O. Box 341 Newville, PA 17241 Attorney for Plaintiff David G. Cox, Esq. 4240 Kendale Road Columbus OH 43220 Attorney pro hoc vice -0-- and =- f. 'Emily M. Bell, Esq. N Clymer Musser and Conrad, P.C. 408 W. Chestnut Street :> _.. Lancaster, PA 17603 r —? Attorneys for Defendants " :rc IES' //2=1.4' £c.(— !el. 2,,a f(3 �Y � IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BOARD No. 12 -7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment v. CHRISTIAN G. ZOOK AND LENA S. ZOOK • ter, • :- - DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT Defendants Pursuant to Pa.R.C.P. Rule 1035.2, Defendants Christian and Lena Z ok move the Court for summary judgment on all of Plaintiffs claims in this matter. The reasons for this motion are more fully explained in the attached memorandum in support, which is attached hereto and incorporated as if rewritten herein. Date: February 26, 2014 Respectfully submitted, David G. Cox, Es . . (O No. o 0042724) 4240 Kendale Road Columbus, OH 43220 Tel: 614- 457 -5167 dcoxlaw@columbus.rr.com And Emily M. Bell Josh Autry Clymer Musser and Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17603 Tel: 717- 299 -7101 Fax: 717 - 299 -5115 Attorneys for Defendants MEMORANDUM IN SUPPORT Background This case is about an Amish family, Defendants Christian and Lena Zook and their children, that farm their 75 acres and who sell their agricultural products directly to consumers from a private store that is located inside a barn on their property. From 2006 to 2010, the Zook's barn was permitted to sell their products to members of a private buyer's club. In 2011, however, the Zook's barn burned down so the Zooks obtained another permit to build another barn. The new barn was a "new and improved" version that included a "new and improved" cooler re- located from the back of their old barn to the front of their new barn, from which the Zooks privately sold their products. Even though the Zooks applied for and received a land use permit for their new barn in 2011, Plaintiff Hopewell Township didn't like the fact that the "new" barn and store were "new and improved." Consequently, in 2012, the Township revoked the Zook's land use permit for the new barn. The Zooks, however, continued to use the barn to sell their products to the private buyer's club. In December 2012, the Township sued the Zooks in this Court, claiming that the Zooks needed to obtain another land use permit if they were going to continue to sell products from their barn. 2 Because the Zooks have now applied for and were issued another land use permit for their barn, this case is now moot. Facts Defendants Christian and Lena Zook own approximately 75 total acres of farmland located at 425 Eno la Road, Newburg, PA, have five children ranging from ages 15 to 3, and are Old Order Amish. See Affidavit of Christian Zook, ¶1, attached hereto as Exhibit 1. The Zooks have lived at this address since 1997. Affidavit of Christian Zook, 1[2, From 2006 to the present, the Zooks have been using a barn on their property for various agricultural purposes, including but not limited to storing hay, storing animals, milking their cows, storage of farm implements and various other agricultural uses. Affidavit of Christian Zook, ¶3. From 2006 to the present, the Zooks have also been using their barn to sell agricultural products that they produce at their farm directly to retail customers. Affidavit of Christian Zook, ¶4. From 2006 to the present, the Zooks have sold such agricultural products as vegetables, meat, chicken, eggs, milk and dairy products and honey, at least 50% of which was produced by them at their farm. Affidavit of Christian Zook, ¶5. Retail sales of the farm products produced by the Zooks at their farm were sold ONLY to members of their religious denomination and to members of an organization called Communities' Alliance for 3 Responsible Eco- Farming ( "CARE "); the Zooks did not sell any of their farm products to the public at large. Affidavit of Christian Zook, ¶6. Prior to 2010, retail sales area in the Zook's barn included the use of a single cooler /freezer that measured 20 feet by 10 feet. Affidavit of Christian Zook, ¶7. In 2010, the Zooks wished to add on to their existing barn to allow for hay storage up top, for additional butchering facilities, and for the installation of a second cooler /freezer to make it more convenient for their customers. Affidavit of Christian Zook, ¶8. This second cooler /freezer measured 31 feet by 17 feet, would replace the old 20 x 10 cooler, and would be moved from the back of the barn to the front of the barn. Affidavit of Christian Zook, ¶9. Before adding onto their barn in 2010, the Zooks showed their proposed drawings and plans, which included the second cooler /freezer that measured 31 x 17, to Hopewell Township employee Greg Alleman. Affidavit of Christian Zook, ¶10. Township employee Alleman reviewed the Zook's plans and drawings and told them that because they were engaged in agricultural operations their barn, including its retail sales area and two coolers /freezers, would not need to comply with the Pennsylvania Uniform Construction Code (PA UCC). Affidavit of Christian Zook, ¶11. With the help of Township employee Greg Alleman, who told the Zooks how to fill out the application in 2010, and in reliance on the representations of Alleman, they filled out an application for a building permit and on 4 October 11, 2010 were issued a permit from Hopewell Township for this addition (which authorized the installation of the second 31 x 17 cooler /freezer). Affidavit of Christian Zook, ¶12. Although construction on the addition to the existing barn was completed sometime in late 2011, the new 31 x.17 cooler /freezer was not operational. Affidavit of Christian Zook, ¶13. On November 27, 2011, the entire barn burned down and the original 20 x.10 cooler /freezer and the new 31 x 17 cooler /freezer were destroyed. Affidavit of Christian Zook, 1114. Consequently, the Zooks had to re -build their barn and had to obtain another building permit. Affidavit of Christian Zook, ¶15. At the time the Zooks applied for their permit in 2011, they told Alleman what they were going to do and that they were going to be doing the same thing, i.e., using their barn for the storage of hay, for butchering, milking, storage of farm implements, and selling agricultural products from their barn directly to retail customers. Affidavit of Christian Zook, ¶16. At no time did Alleman tell the Zooks that this constituted an "impermissible use" of their barn or that they needed a conditional use permit. Affidavit of. Christian Zook, ¶17. In reliance on the representations of Alleman, the Zooks applied for and obtained a permit to build a new barn to replace their old barn. Affidavit of Christian Zook, ¶18. The second building permit was issued on December 5 16, 2011. Affidavit of Christian Zook, ¶19. Construction of the new barn was not completed until approximately February 2012. Affidavit of Christian Zook, 11120. Although the old barn that burned down contained a 20 x 10 cooler/freezer and a 31 x 17 cooler/freezer, the new barn contained only one 31 x 17 cooler/freezer. Affidavit of Christian Zook, ¶21. On August 9, 2012, Alleman, under the direction of the Township Supervisors, issued a letter revoking the Zook's 2011 permit for their new barn, claiming that they had not informed the Township that they were going to sell food from the private, retail store located in their barn. Affidavit of Christian Zook, 1[22, On August 13, 2012, the Township code inspector issued a cease and desist letter to the Zooks ordering them to "cease any beneficial use" of their barn. Affidavit of Christian Zook, ¶23. On March 11, 2013, Alleman testified in the Magisterial District Court of Cumberland County, Docket No. 09301-NT-148-2013, that if the Zooks had kept their new cooler and retail store in the back of the barn nothing would have been said, but the Zooks put the store in the front of the barn where it was visible. Affidavit of Christian Zook, ¶24. See partial transcript, attached to the Zook affidavit as Exhibit A. On December 10, 2012, Hopewell Township filed a complaint against the Zooks in this Court. Affidavit of Christian Zook, ¶25. The Township's complaint alleged that the Zooks are required to obtain a land use permit from the Township. Affidavit of Christian Zook, ¶26. The Township's prayer 6 for relief seeks "an Order requiring [the Zook's] to apply for a land use permit forthwith;,, Affidavit of Christian Zook, ¶27. In January 2014, -the Zooks submitted an application .to.,the Township .for a. land use permit. Affidavit ,of Christian Zook,. ¶28.410n February 4, 2014, the Township .approved the Zook's application for.aland use permit and issued permit number 14 -09. Affidavit of.Christian Zook, ¶29. .Thus the Township's request for an Order from ,the, Court, requiring,the. Zooks to submit an application for a land use permit is now moot. Affidavit of Christian Zook, 1130: • Argument 1. The Township's request for an Order .enjoining the Zooks to submit an application for a land use permit is now moot. t • Pa.R.C.P: 1035.2 provides, in part, that a party may move for summary r. judgment "in whole or in part as a matter of law" whenever "there is no genuine issue of any material fact as to a necessary element of the cause of = a;i , , } 1 . ' 4 • ,. action or defense which could be established by additional discovery or expert report." Rule 1035.4 provides that "[s]upporting and opposing affidavit shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the - signer is t competent to testify to the matters stated therein." Judgment shall be entered if "the record shows that there is no genuine issue of material fact ` ;; #�. ,. and the moving party is entitled to judgment as a matter of law." Zearfoss v. Frattaroli, 435 Pa.Super. 565, 567, 646 A.2d 1238 ( Pa.Super. 1994) (emphasis In the case of DeFilippo v. Cranberry Tsp., 49 A.3d 939, 943 (Cmwlth. 2012), a land developer had submitted a plan to develop an automobile sales and service center and that plan was approved by the Township. DeFilippo and others appealed the plan approval yet, during the appeal, the land developer submitted a subsequent plan for the auto sales and service center. The Township also approved that subsequent plan. The developer chose to develop the property in accordance with the second plan, however, DeFilippo and the others did not appeal the second plan approval. On appeal,. the Commonwealth dismissed the appeal of the first plan approval for mootness, stating as follows: In sum, Carsense secured approval of two plans, one of which was challenged on appeal and one of which was not. Carsense chose to develop its property in accordance with Plan II, which Objectors did not challenge. This rendered their challenge to the earlier plan moot; there is no longer an actual controversy regarding the development plan. Id. at 943. In the instant case, the Township seeks to have the Zooks submit another application for a land use permit. However, that has already been done; the Zooks have submitted another application for a land use permit, that application was approved, and permit number 14-09 was issued. Consequently, the relief sought by the Township is moot. Therefore, this matter should be dismissed with prejudice as moot. 2. The Township is not entitled to penalties because its enforcement notice is defective and does not comply with 53 P.S. 10616.1. 9 The Municipalities Planning Code allows municipalities such as the Township in this case to issue an "enforcement notice." However, the enforcement notice must contain specific provisions and failure to do so renders the notice defective. Specifically, 53 P.S. §10616.1(c) specifies that an enforcement notice: "shall state at least the following: (1) The name of the owner of record and any other person against whom the municipality intends to take action. (2) The location of the property in violation. (3) The specific violation with a description of the requirements which have not been met, citing in each instance the applicable provisions of the ordinance. (4) The date before which the steps for compliance must be commenced and the date before which the steps must be completed. (5) That the recipient of the notice has the right to appeal to the zoning hearing board within a prescribed period of time in accordance with procedures set forth in the ordinance. (6) That failure to comply with the notice within the time specified, unless extended by appeal to the zoning hearing board, constitutes a violation, with possible sanctions clearly described. If these requirements are not satisfied, penalties are not allowed. As stated by the Commonwealth Court in the case of City of Erie v. Freitus, 681 A.2d 840, 842 (Cmwlth. 1996): "in order to commence zoning enforcement proceedings, a municipality must send an enforcement notice which satisfies the specific requirements set forth in [53 P.S. §10616.1]. (footnote omitted). A 10 municipality's failure to comply with [53 P.S. §10616.1] precludes it from seeking penalties under [53 P.S. §10617.2]." In addition, proper notice is required whether the violation is a one- time occurrence or an ongoing violation. See Conewago Tsp. v. Bucklew, 14 Pa. D &C.4th 160, 164 (Cm. Pls. 1992) ( "However, it does not change the requirement that notice be given prior to filing a suit to enforce the ordinance, whether it be a single or continuing violation. "). Therefore, since proper notice is required prior to instituting an action to enforce an ordinance, "the complaint must be dismissed" if the notice is not proper. See Conewago Tsp. v. Bucklew, 14 Pa. D &C.4th 160, 165 (Cm. Pls. 1992). 53 P.S. §10616.1(c)(3) requires that the enforcement notice must "cite" to the "specific provision" of the "applicable provisions of the ordinance" that was violated. Moreover, 53 P.S. §10616.1(c)(6) requires that "possible sanctions [must be] clearly described" in the event the recipient fails to comply with the notice or fails to appeal to the Zoning Hearing Board. In this case, the Township's notice is defective for at least two reasons. First, the notice does not cite the specific ordinance that the Zooks have allegedly violated, as required by paragraph (c)(3). The Commonwealth Court has held that this provision requires "a specific numerical reference to the ordinance section which the township asserts the landowners have violated." See Tsp. of Maidencreek v. Stutzman, 164 Pa.Cmwlth. 207, 212, 642 A.2d 600 (Cmwlth. 1994). Although the enforcement notice refers to Table 3 -1 of the ordinance, it does not refer to any specific ordinance 11 provision that requires a special use permit.' Without such a specific reference to a numerical designation the notice is invalid. Second, the notice does not comply with paragraph (c)(6). The notice nowhere states that attorneys' fees, costs and or fines may be imposed if the Zooks failed to either comply with the notice or to appeal to Zoning Hearing Board. Although the notice does inform the Zooks that they are not permitted to conduct a retail business until they obtain a conditional use permit, it does not inform them of these other possible sanctions.2 Therefore, because the enforcement notice is not proper, the Township is not entitled to any penalties, attorneys' fees and/or costs. Consequently, this matter is moot. Conclusion The Zooks have already obtained a land use permit from the Township. Consequently, the Township's request for an Order requiring the Zooks to submit another application for a land use permit is moot. The Township's enforcement notice fails to specify the ordinance provision that the Zooks allegedly violated, and it fails to inform the Zooks of the possible sanctions of attorneys' fees, costs and fines. Thus, the Township 1 Plaintiffs complaint at ¶9 identifies Section 3.04 as the specific provision that has been violated by the Zooks. However, Section 3.04 is not mentioned . in the enforcement notice. 2 Plaintiffs complaint at ¶8 informs the Zooks that they are subject to attorneys fees and costs and up to $600 per day per violation, but the enforcement does not specify any of these possible sanctions. 12 is not entitled to attorney's fees, costs and fines. For these reasons, the Township's claims and remedies are moot and this matter should be dismissed with prejudice and judgment entered in favor of the Zooks. Date: February 26, 2014 Respectfully submitted, David G. Cox, q. No. 0042724) 4240 Kendale Road Columbus, OH 43220 Tel: 614 - 457 -5167 dcoxlaw @columbus.rr.com And Emily M. Bell Josh Autry Clymer Musser and Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17603 Tel: 717- 299 -7101 Fax: 717 - 299 -5115 Attorneys for Defendants 13 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BOARD No. 12 -7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment v. CHRISTIAN G. ZOOK AND DEFENDANTS' MOTION FOR SUMMARY JUDGMENT LENA S. ZOOK Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served by regular U.S. mail on this 26th day of February, 2014, to the following: Sally J. Winder (ID No. 24705) P.O. Box 341 Newville, PA 17241 Tel: 717- 776 -6656 Attorney for Plaintiff Q\i‘A" David G. Cox 14 EXHIBIT 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. No. 12 -7080 Civil Term OF SUPERVISORS Plaintiff Appeal from Magisterial District Judge Judgment v. CHRISTIAN G. ZOOK AND LENA S. ZOOK Defendants AFFIDAVIT OF CHRISTIAN G. ZOOK _ COUNTY OF CUMBERLAND • STATE OF PENNSYLVANIA I, Christian G. Zook, do hereby make the following statements under oath based on my personal knowledge, understanding and belief. If called to testify in this matter, I am competent to testify to the matters stated herein. 1. My wife Lena Zook and I own approximately 75 total acres of farmland located at 425 Enola Road, Newburg, PA, have five children ranging from ages 16 to 4, and are Old Order Amish. 2. We have lived at this address since 1997. 3. From 2006 to the present, we have been using a barn on our property for various agricultural purposes, including but not limited to storing hay, storing animals, milking our cows, storage of farm implements and various other agricultural uses. 4. From 2006 to the present, we have also been using our barn to sell agricultural products that we produced at our farm directly to retail customers. 5. From 2006 to the present, we have sold such agricultural products as vegetables, meat, chicken, eggs, milk and dairy products and honey, at least 50% of which was produced by us at our farm. 6. Retail sales of the farm products produced by us at our farm were sold ONLY to members of our religious denomination and to members of an organization called Communities' Alliance for Responsible Eco-Farming ("CARE"); we did not sell any of our farm products to the public at large. 7. Prior to 2010, our retail sales area in our barn included the use of a single cooler/freezer that measured 20 feet by 10 feet. 8. In 2010, we wished to add on to our existing barn to allow for hay storage up top, for additional butchering facilities, and for the installation of a second cooler/freezer to make it more convenient for our customers. 9. This second cooler/freezer measured 31 feet by 17 feet, would replace the old 20 x 10 cooler, and would be moved from the back of the barn to the front of the barn. 10. Before adding onto our barn in 2010, we showed our proposed drawings and plans, which included the second cooler/freezer that measured 31 x 17, to Hopewell Township employee Greg Alleman. 2 11. Township employee Alleman reviewed our plans and drawings and told us that because we were engaged in agricultural operations our barn, including its retail sales area and two coolers/freezers, would not need to comply with the Pennsylvania Uniform Construction Code (PA UCC). 12. With the help of Township employee Greg Alleman, who told us how to fill out the application in 2010, and in reliance on the representations of Alleman,,we filled out an application for a building permit and on October 11, 2010 were issued a permit for this addition (which authorized the installation of the second 31 x 17 cooler/freezer) from Hopewell Township. 13. Although construction on the addition to the existing barn was completed sometime in late 2011, the new 31 x 17 cooler/freezer was not operational. 14. On November 27, 2011, the entire barn burned down and the original 20 x 10 cooler/freezer and the new 31 x 17 cooler/freezer were destroyed. 15. Consequently, we had to re-build our barn and had to obtain another building permit. 16. At the time we applied for our permit in 2011, we told Alleman what we were going to do and that we were going to be doing the same thing, i.e., using our barn for the storage of hay, for butchering, milking, storage of farm implements, and selling agricultural products from our barn directly to retail customers. 17. At no time did Alleman tell us that this constituted an "impermissible use" of our barn or that we needed a conditional use permit. 3 18. In reliance on the representations of Alleman, we applied for and obtained a permit to build a new barn to replace our old barn. 19. The second building permit was issued on December 16, 2011. 20. Construction of the new barn was not completed until approximately February 2012. 21. Although the old barn that burned down contained a 20 x 10 cooler /freezer and a 31 x 17 cooler /freezer, the new barn contained only one 31 x 17 cooler /freezer. 22. On August 9, 2012, Alleman, under the direction of the Township Supervisors, issued a letter revoking our 2011 permit for our new barn, claiming that we had not informed the Township that we were going to sell food from the private, retail store located in our barn. 23. On August 13, 2012, the Township code inspector issued a cease and desist letter to us ordering us to "cease any beneficial use" of our barn. 24. On March 11, 2013, Alleman testified in the Magisterial District Court of Cumberland County, Docket No. 09301 -NT- 148 -2013, that if we had kept our new cooler and retail store in the back of the barn nothing would have been said, but we had put the store in the front of the barn where it was visible. Affidavit of Christian Zook, ¶24. A true and accurate copy of the partial transcript is attached hereto as Exhibit A. 25. On December 10, 2012, Hopewell Township filed a complaint against us in the Court of Common Pleas, Cumberland County. 4 26. The Township's complaint alleged that my wife and I are required to obtain a land use permit from the Township. 27. The Township's complaint prays for relief in the form of "an Order requiring [my wife and I] to apply for a land use permit forthwith." 28. In January 2014, my wife and I submitted an application to the Township for a land use permit. 29. On-February 4, 2014, the Township approved our application and issued us a land use permit, permit number 14-09. A true and accurate copy of permit 14-09 is attached hereto as Exhibit B. 30. Thus, the Township's request for an Order from the Court requiring us to submit an application for a land use permit is now moot since we already have. FURTHER AFFIANT SAYETH NAUGHT Christian G. Zook, De endant V44 Sworn and subscribed before me this 1 -1 day of February, 2014. Notary public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Viki Hronls, Notary Public Shlppensburg Boro, Cumberland County My Commisslon Expires Dec. 19, 2016 MEMBER, PENNSYLVANIA ASSOCIATION OF NOTARIES 5 EXHIBIT A IN THE MAGISTERIAL DISTRICT COURT OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA,) ) Plaintiff, ) MDJ- 09 -03 -01 ) vs. ) DOCKET NO. MJ- 09301 -NT- 148 -2013 CHRISTIAN G. ZOOK, ) Defendant. ) TRANSCRIPT OF PROCEEDINGS CODES VIOLATION HEARING Before: JESSICA E. BREWBAKER, District Justice Date: March 11, 2013 at 2:15 p.m. Place: Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania Linda C. Larson, CSR, RPR, CLR, CRI Court Reporter - Notary Public PREMIER REPORTING, LLC 8 South Hanover Street, Suite 201 Carlisle, Pennsylvania 17013 E -mail: linda @premierreportingllc.com Tel: (717) 243 -9770 Fax: (717) 243 -0413 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 2 APPEARANCES: COMMONWEALTH CODE INSPECTION SERVICE 1102 Sheller Avenue Chambersburg, Pennsylvania 17201 BY: R. CLEM MALOT, MCP (717) 262 -0081 For the Commonwealth LAW OFFICE OF DAVID G. COX 4240 Kendale Road Columbus, Ohio 43220 BY: DAVID G. COX, ESQUIRE (614) 457 -5167 For the Defendant ALSO PRESENT: Forest N. Myers, Esquire Premier Reporting, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 INDEX TO TESTIMONY WITNESS DIRECT CROSS REDIRECT. RECROSS Greg Alleman 8 23 49 51 R. Clem Malot 52 61 INDEX TO EXHIBITS NO. DESCRIPTION MARKED RECEIVED For the Commonwealth 1 Zoning Permit Application 9 61 2 Building Permit Application 12 61 3 Land Use Permit Hopewell Township 13 61 4 Application for Building Permit Use Certificate 14 61 5 December 30, 2011 Letter 15 61 6 Drawing 16 61 6A Drawing 16 61 7 August 9, 2012 Letter 21 61 8 Affidavit of Truth 22 9 Notice of Violation 52 61 10 Photograph 59 61 11 Photograph 59 61 12 Orth vs. Department of Labor & Industry 57 61 For the Defendant 1 Building Permit 32 2 District Justice Adams' Decision 43 Premier Reporting, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 40 A. No. Q. No? A. No. There was -- Q. Why do you say no? A. I can't say that that's what he said to me. I. wouldn't -- I couldn't permit him something that didn't fall under an exemption. Q. Well, it was allowed before, wasn't it? A. No. Q. No, it wasn't? A. No. Q. Well, you had a permit for it, didn't you? A. No. He had no permitting for any sale of any foods or anything like that. Q. Did you ever shut him down -- A. No. Q. -- even though you shopped there and bought some food? A. There are times that you have to let people live. There are things in every township that people do. Chris was doing this out of the back of his barn. His barn burnt down. If he had kept it in the back of the barn, maybe nothing would have been said. He put it out in the front of the barn 'where it was very visible. Plus it was more modernized. There were a lot more things happening Premier Reporting, LLC 1 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 69 COMMONWEALTH OF PENNSYLVANIA ) ss: COUNTY OF CUMBERLAND I, LINDA C. LARSON, a Court Reporter and Notary Public in the Commonwealth of Pennsylvania do hereby certify that I reported the foregoing proceedings had and testimony taken on March 11, 2013, and that the same is true and correct in accordance with my original machine shorthand notes taken at said time and place. Linda C. Larson, CSR, RPR, CLR, CRI Court Reporter and Notary Public In and for the Commonwealth of Pennsylvania Dated this 21st day of March, 2013, Carlisle, Pennsylvania. ** Valid certification contains original signature of reporter. Premier Reporting, LLC EXHIBIT B __. REWEL LAND USE PERMIT N was issued ON 0 lig/Permits Officer Hopewell Township Cumberland County, PA Expires on 4- ind , unless the work specified by this permit has been commenced ptil,u,..(1 with (ITN: dili!.encc PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the nex -A Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Hopewell Township Board of Supervisors vs. Christian G. and Lena S. Zook No 12-7080 , Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to Loroolaint, uetendants 'motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Sally Winder, P.O. Box 341, Newville, PA 17241 (Name and Address) (b) for defendants: David G. Cox, 4240 Kendale Road, Columbus, OH 43220 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. "r7 Date: February 26, 2014 Print your name Defendants Attorney for iNSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ‘ci,-15-xt Icfl Clymer Musser & Conrad, P.C. Joshua M. Autry, Esquire I.D. No. 208855 408 West Chestnut Street Lancaster, PA 17603 (717) 299 -7101 C'?3 C° No. 12 -7080 20P-9 APR -3 PH I; CUMBERLAND COUNTY PENNSYLVANIA ATTORNEYS FOR DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. OF SUPERVISORS Plaintiff v. CHRISTIAN G. ZOOK AND LENA S. ZOOK Defendants No. 12 -7080 Civil Term Appeal from Magisterial District Judge Judgment PRAECIPE TO ENTER APPEARANCE TO WITHDRAW TO THE PROTHONOTARY: Kindly withdraw Defendants' Motion for Summary Judgment and remove it from the oral argument list. Dated: 4 /2/14 Res � u .. Submi d, Josh i a • utry, quire Pa. ID Clymer Musser & Conrad, P.C. 408 West Chestnut Street Lancaster, PA 17603 (717) 299 -7101 phone, (717) 299 -5115 fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOPEWELL TOWNSHIP BD. OF SUPERVISORS Plaintiff v. CHRISTIAN G. ZOOK AND LENA S. ZOOK Defendants No. 12 -7080 Civil Term Appeal from Magisterial District Judge Judgment Entry of Appearance CERTIFICATE OF SERVICE No. 12 -7080 I hereby certify that a copy of the foregoing was served by regular U.S. mail on this 5th day of December 2013, to the following: Sally J. Winder (ID No. 24705) P.O. Box 341 Newville, PA 17241 Tel: 717- 776 -6656 Attorney for Plaintiff David G. Cox, Esq. (Oh Bar No. 0042724) 4240 Kendale Road Columbus, OH 43220 Tel: 614 - 457 -5167 dcoxlaw@columbus.rr.com Candidate for admission pro hac vice for Defendants By: Date: 4/2/14 t: ri1 1, submitted, Jo ua try, Esquire A o or Defendants HOPEWELL TOWNSHIP BOARD OF SUPERVISORS Plaintiff v. CHRISTIAN G. ZOOK AND LENA S. ZOOK, his wife Defendants To THE PROTHONOTARY: :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA... • r) _s mac:: -4 CD cz" : No. 12- 7080 Civil Term -o rn 7-1Z � r- �n : Appeal from Magisterial District Jae Judgment T PRAECIPE Please mark the above -captioned matter settled and discontinued with prejudice. Sally J. inder, Esquire Attorney for Plaintiff Court ID 24705 P.O. Box 341 Newville, PA 17241 717 776 6656 --r C 73".3