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HomeMy WebLinkAbout13-3153 15 :. Supreme Coin o Pennsylvania ,4 Ak + COUr Commo Pleas For Prothonotary Use Only: per 9 et l�l!! r-- u Docket No: 57,1 Cu eHand County I — 3l 3 ��t, 1 tjn The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S x Complaint El Writ of Summons Petition LM Transfer from Another Jurisdiction Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: Jeffrey D. Tinsman Li Nie Schell T Dollar Amount Requested: Owithin arbitration limits I Are money damages requested? ET Yes M No (check one) Ox outside arbitration limits O N Is this a Class Action Suit? I I Yes El No Is this an MDJAppeal? ® Yes x' No A Name of Plaintiff/Appellant's Attorney: Lee C. Swartz, Esq.Tucker Arensberg, P.C. Check here if you have no attorney(are a Self-Represented (Pro Se] Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS 0 Intentional ❑ Buyer Plaintiff Administrative Agencies ®I Malicious Prosecution 0 Debt Collection: Credit Card 17 Board of Assessment 13 Motor Vehicle M Debt Collection: Other 0 Board of Elections MFx Nuisance 0 Dept.of Transportation 0 Premises Liability Statutory Appeal: Other S 0 Product Liability(does not include E mass tort) M Employment Dispute: Discrimination © Slander/L,ibel/befamation C Sher: Employment Dispute:Other 10' Zoning Board T Other: I 0 Other: O MASS TORT 0 Asbestos N 0 Tobacco M Toxic Tort-DES rl Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS Toxic Waste Other: 0 Ejectment n Common Law/Statutory Arbitration B 0 Eminent Domain/Condemnation 0 Declaratory Judgment 0 Ground Rent 0 Mandamus 1] Landlord/Tenant Dispute -' Non-Domestic Relations 1] Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure: Commercial Quo Warranto 0 Dental 0 Partition 0 Replevin ] Legal 0 Quiet Title 0 Other: 0 Medical 0 Other: 0 Other Professional: Updated 1/1/2011 JEFFERY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA 706 North Front Street Wormleysburg, PA 17043 NO. i 3 ' ��5� , 2013 Plaintiffs CIVIL ACTION - LAW& EQUITY V. LI NIE SCHELL, trading and doing business as ASIAN ACUPRESSURE MASSAGE 704 North Front Street Wormleysburg, PA 17043 : Z c' zC and ca ASIAN ACUPRESSURE MASSAGE -• 704 North Front Street Wormleysburg, PA 17043 ; a - and �r l STEPHEN R. WILSON 109 Ridgewood Drive ; Camp Hill, PA 17011 and : THE BOROUGH OF WORMLEYSBURG, by its Council Members, THOMAS L. MARTINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH DEKLINSKI,,SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ; ZACHARY KAHLER, Junior Councilman, 20 Market Street : Wormleysburg, PA 17043 Defendants CIVIL ACTION COMPLAINT "AV1SO" "NOTICE" "Le han demandado en torte.Si usted desea defender contra las demandas You have been sued in court. If you wish to defend a dispuestas en las paginas siguientes,usted debe tomar la action en el plzzo de veinte y against the claims (20)dins despues de esta queja y se sirve el aviso,incorporurdo un aspecto escrito set forth in the following pages,you must take action within twenty(20) personalmente o y arclurando en escribir-con la cone sus defensas u objeciones a las days after this complaint and notice are served,by entering a written demand-as dispuestas contm usted el abogado le advierte que que si usted no puede appearance personally or by attorney and filing in writing with the court �` 1/3/3 your defenses or objections to the claims set forth against you. you are hacer asi que el caso puede proceder sin usted y un juicio se puede incorporar contra warned that if you fail to do so the case may proceed without you and a usted compra la cote sin aviso adicional Para cualquier dinero demandado en la judgment may be entered against you buy the court without further queja o para cualquier otra demanda o relevaci6n pedida por el demandame.Usted notice for any money claimed in the complaint or for any other claim or puede perder el d ncro o la caracteristica de otra eridereza importante a usted. relief requested by the plaintiff. You may lose money or property of other rights important to you. USTED DEBE LLEVAR ESTE PAPEL SU ABOGADO INMEDIATAMENTE. SI USTED NO HACE QUE UN ABOGADO VAYA A O LLAME POR YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT TELEFONO La OFICINA DISPUESTA ABAJO.ESTA OFICINA PUEDE ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR PROVEER DE USTED LA INFORMACION SOBRE EMPLEAR A UN TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE ABOGADO.SI USTED NO PUEDE PERMITIRSE AL HIRE A UN CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A ABOGADO,ESTA OFICINA PUEDE PODER PROVEER DE USTED LA LAWYER.IF YOU CANNOT AFFORD TO HIRE A LAWYER,THIS INFORMACION SOBRE LAS AGENCIES QUE LOS SERVICIOS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION JURIDICOS DE LA OFERTA DE MAYO A LAS PERSONAS ELEGIBLES EN ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO UN HONORARIO REDUCIDO O NINGON HONORARIO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. DAUPHIN COUNTY LAWYER REFERRAL SERVICE DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 NORTH FRONT STREET 213 NORTH FRONT STREET HARRISBURG PA HARRISBURG PA 17101 PHONE: (717)232.77536 536 PHONE: (717)232.7536 TUCKER ARENSBERG, P.C. By: Lee C. wartz, Es uire Attorney I.D. 07258 Attorney for Plaintiffs 2 Lemoyne Drive, Suite 200 Lemoyne, Pa 17043 107514 (717) 234-4121 3 JEFFERY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA 706 North Front Street Wormleysburg, PA 17043 NO. _ 13- -315 2013 Plaintiffs CIVIL ACTION - LAW& EQUITY V. LI NIE SCHELL, trading and doing business as ASIAN ACUPRESSURE MASSAGE 704 North Front Street Wormleysburg, PA 17043 ; and ASIAN ACUPRESSURE MASSAGE , 704 North Front Street Wormleysburg, PA 17043 ; and STEPHEN R. WILSON 109 Ridgewood Drive ; Camp Hill, PA 17011 and THE BOROUGH OF WORMLEYSBURG, by its Council Members, THOMAS L. MARTINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman, 20 Market Street Wormleysburg, PA 17043 Defendants COMPLAINT COUNT ONE -ACTION FOR EQUITABLE RELIEF 1 Plaintiffs, Jeffery D. Tinsman and Elizabeth P. Tinsman, are adult individuals, husband and wife, who reside at 706 North Front Street, Wormleysburg, Cumberland County, Pennsylvania. 2. Defendant, Asian Acupressure Massage, is an unincorporated business entity which does business at 704 North Front Street, Wormleysburg, Cumberland County, Pennsylvania and are tenants of Defendant Wilson 3. Defendant, Stephen R. Wilson, is an adult individual who resides at 109 Ridgewood Drive, Camp Hill, Cumberland County, Pennsylvania, and is the owner of 704 North Front Street, Wormleysburg, Cumberland County, Pennsylvania. 4. Defendant, the Borough of Wormleysburg, is a duly incorporated municipality with its office situated at 20 Market Street, Wormleysburg, Cumberland County, Pennsylvania. Its Council members are the following individuals: Thomas L. Martini, President, Stephen M. Hawbecker, Vice President, Joseph Deklinski, Sue Stuart, Warren Stumpf, Margaret Stuski, Dennis Redding, Sr., Lukas Deklinski, Junior Councilman, and Zachary Kahler, Junior Councilman. 5. Defendant Lie Nie Schell is an adult individual whose usual place of business is 704 North Front Street, Wormleysburg, Cumberland County, Pennsylvania. FIRST CAUSE OF ACTION VIOLATION OF ZONING ORDINANCE FACTUAL BACKGROUND 6. Plaintiffs' property is situated on Front Street in the Borough of Wormleysburg, overlooking the Susquehanna River, in an R-1 residential zone for single family detached, two- family detached, single-family semi-detached and Class A multiple dwellings, which include 2 schools, professional offices, parks, libraries, public utility facilities; accessory structures and possible daycare homes and church-related structures. (See Plaintiffs' Exhibit "A" attached hereto) 7. Stephen R. Wilson is the owner of the property next door to the Tinsman property which is located at 704 North Front Street, Wormleysburg, and is a single-family dwelling. For many blocks, the only structures erected in the area of 704 North Front Street in the Borough of Wormleysburg are single-family dwellings overlooking the Susquehanna River. 8. Sometime during the year 2012, the Defendant Wilson leased the home at 704 North Front Street, Wormleysburg, Pennsylvania, to persons who engage in the business of providing massages and who, since that time, have operated a business known as "Asian Acupressure Massage." No permit was issued by the Borough of Wormleysburg for such use. 9. The owners of Asian Acupressure Massage have illegally operated their business without filing a fictitious name, contrary to the Fictitious Name Act of the Commonwealth of Pennsylvania. It is believed that U Nie Schell is an owner. She purports to be in charge of the business. 10. The operation of a massage parlor is an illegal use under the zoning laws of the Borough of Wormleysburg, inasmuch as it does not meet the definition of any of the uses set forth on the attached section of the Zoning Code, particularly the R-1 Residential Zone in which it is situated. 11. The Borough of Wormleysburg has continued to permit the illegal use of the property at 704 North Front Street as a massage parlor, contrary to the objections of the Plaintiffs and, in fact, has permitted such use by oral agreement to either the Defendant Wilson or the owners of Asian Acupressure Massage or both. 12. In addition, the Borough of Wormleysburg has granted the right of the occupants of 704 North Front Street to erect an unsightly neon sign advertising its business, which is also contrary to the Borough's sign ordinance. 3 13. Defendants, Li Nie Schell and Asian Acupressure Massage, its owners and employees, have engaged in lewd, indecent and illegal conduct in the performing of the massages provided. 14. As a result of the illegal operations provided, automobiles, motorcycles, and truck tractors have parked in the area of the Plaintiffs' property, as well as that of 704 North Front Street, at all times day and night, the owners of which come from long distances to participate in the illegal operations engaged in by the Defendant owners of Asian Acupressure Massage. 15. Some of the providers of the massages are unlicensed, contrary to the laws of the Commonwealth of Pennsylvania. 16. Both of the Defendants Wilson and the Borough of Wormleysburg are aware of the illegal activity being engaged in, as well as the fact that a massage parlor is an improper use in a residential district but have continued to permit the activity therein. 17. On several occasions various law enforcement entities have raided the massage parlor and have determined that illegal activities are engaged therein. 18. Engaging in the above-referenced massage parlor enterprise has and continues to depreciate the value of the property of the Plaintiffs, and has caused them much emotional distress as a result thereof. WHEREFORE, Plaintiffs request the Honorable Court to enter an order commanding the Borough of Wormleysburg to order the Defendants Wilson, Li Nie Schell and Asian Acupressure Massage to cease and desist from operating a massage parlor on the premises located at 704 North Front Street, Wormleysburg, PA, and to cancel and revoke any leases and permits, oral or written, permitting such use and to grant damages for the devaluation of their property and emotional distress in excess of$10,000, 4 SECOND CAUSE OF ACTION ACTION IN EQUITY TO ENJOIN NUISANCE 19. The facts alleged herein, Paragraphs 1 through 18 are incorporated herein by reference and constitute a public and a private nuisance to the Plaintiffs and the neighbors in general under the common law. 20. Plaintiffs have no adequate remedy at law. WHEREFORE, Plaintiffs pray: a. that an injunction be issued, preliminary until final hearing and permanent thereafter, to restrain Defendants Wilson, Li Nie Schell and Asian Acupressure Massage from using or maintaining a massage parlor at 704 North Front Street, Wormleysburg, Pennsylvania, or engaging in any other use contrary to the zoning ordinance of the Borough of Wormleysburg and creating a nuisance in the neighborhood. b. that Defendant Borough of Wormleysburg, issue a citation to the Defendants Wilson, Li Nie Schell and Asian Acupressure Massage to cease the operation of a massage parlor at 704 North Front Street, Wormleysburg, Pennsylvania, and utilize the police powers to enforce such citation. C. grant damages for emotional distress to the Plaintiffs against Defendants Wilson, Li Nie Schell and Asian Acupressure Massage, resulting from the operation of a massage parlor, and engaging in illegal conduct therein. d. Issue a fine against Defendants Wilson, Li Nie Schell and Asian Acupressure Massage, in an amount as allowed under the Borough Ordinance or Municipality Planning Code. 5 COUNT TWO -ACTION IN MANDAMUS 20. Paragraphs 1 through 19 are incorporated herein by reference thereto. 21. Defendant members of the Council of the Borough of Wormleysburg had a duty to refuse to permit the Defendant Asian Acupressure Massage to operate its business wherein it is situated as referred to in Paragraphs 8 and 13 herein. 22. Plaintiffs rely on the facts incorporated by reference herein including the Borough's direct or implied permission to Defendants Li Nie Schell, Asian Acupressure Massage and Stephen R. Wilson to operate an unlawful business in an impermissible zone of the Borough. 23. Plaintiffs have an interest in precluding the impermissible use referred to herein since they are homeowners who live next door and must witness many disreputable characters frequenting the massage parlor premises and parking in the neighborhood at all times of the day and night. 24. The clients of the massage parlor travel at great distances to be serviced by the massage parlor as referred to in this Complaint. 25. An employee of the massage parlor has admitted to illegal activity. 26. As a result of the illegal activity of the massage parlor and its conspicuous advertisements on its premises, including a large neon sign, the value of the Plaintiffs' home is depreciating and Plaintiffs are suffering grievous financial and emotional distress. 27. Plaintiffs have no adequate remedy at law except for the relief requested as follows: 28. The rights of the Plaintiffs to the following relief requested are clear. WHEREFORE, Plaintiffs request the Honorable Court to enter a preemptory judgment order under Pa.R.C.P. 1098 commanding the Defendant Borough of Wormleysburg through its Council members to issue a citation and take all steps necessary to require Li Nie Schell, Asian Acupressure Massage and Stephen R. Wilson to cease the operation of a massage parlor at 6 704 North Front Street, Wormleysburg, Pennsylvania, or anywhere else in a residential zone within the Borough and to order Asian Acupressure Massage to vacate the premises and remove all its equipment and to exercise its police powers, if necessary, to accomplish such purposes. TUCKER ARENSBERG, P.C. By: ee C. Swart a. Bar I.D. No. 07258 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR PLAINTIFFS H BG DB:133780-1 025598-158356 7 VERIFICATION I, Jeffery D. Tinsman, hereby certify that I am a plaintiff in this action, and that the statements contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements made to this verification are subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. DATE: 1,Aq 2013 effe D. Tinsm n H BGDB:133780-1 025598-158356 EXHIBIT "A" 10 . . . f - Zoning District Definitions - ' RR-1 Restricted Residential S dwellings and accessory uses. [)ena/Ly of 20,600 sguucc feet per dwelling unit.. - . RR-2 Restricted Residential—Single-faoilydotecbed dwellings and accessory uses; ' and, possible Cluster Development., Density of 10,000 square feet per dwelling unit.. R~I Residential—Si detached, two-family detached, single-family semi- detached and class/\ multiple dwellings; Schools;professional otfluoo;parks,libraries; public utility facilities; accessory structures and pnGsitloday care homes and church related structures. Density of 6,000 square feet per dwelling unit R~2 Residential—Single-family detached, single-family Gemi-d two-family detached, two-family semi-detached and class A multiple dwellings; 8cbnuIs, cbnrcbe8, professional offioco, municipal fauilidoa,pohliuudDtyfaollidosouducccmmoryubuctoneo, and possible cluster developments and day care homes. Density of 5.0O0 square feet for one (]) dvveDiogunit R~3 Residential—Singl6-family detached, single-family semi- two-family detached,iwo-family semi-detached, single-family attached dwellings; business, professional and financial offices; small retail, barbez/boauty shop, municipal facilities, schools,post office, fire company, apartment conversions, accessory structures and day home. Density Vf5,0UO square feet for a one (l) fuooilyunit: C~I Commercial—All uses pconi�duod�rosid�d� dis��a, apa�ment and o�c building, class ]0'multiple dwelling, retail business, shopping center animal hospital, | cburcbca, nchoolx, libraries, municipal facilities, post office, public utility facilities, C'2 Conmmmcrcial—AJlomeopornzittedindhoC-lDintrict, priodog establishments, newspaper, theaters, assembly halls,places of amusement, automobile service otuboom; and possible major automobile repair garage, automobile oz mobile home sales garage. Density 5,00O square feet. D-1 LiehtIodoatriaX—Al oaea from the C-1 and[-%Districts with the exception mfresidential uses; electronics and small processing, packaging of treatment of numerous listed items; warehouses, post offices,public utility facilities,parking lots, accessory structures; and possible class A multiple dwelling, apartment-office building; major automobile garage and automobile or mobile home sales garage. Density 5,000 square feet. C-D Conservation—Municipal uses only! ' ' ` JEFFERY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA 706 North Front Street Wormleysburg, PA 17043 NO. 13-' -3J S3 2013 Plaintiffs CIVIL ACTION - LAW& EQUITY V. LI NIE SCHELL, trading and doing business as ASIAN ACUPRESSURE MASSAGE 704 North Front Street : Wormleysburg, PA 17043 and ASIAN ACUPRESSURE MASSAGE _ ''=zr „ r 704 North Front Street ,, X' C.J c..1 , Wormleysburg, PA 17043 wt and —I ino STEPHEN R. WILSON < 4r r n 109 Ridgewood Drive : Camp Hill, PA 17011 : and : THE BOROUGH OF WORMLEYSBURG, by its Council Members, THOMAS L. MARTINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman, 20 Market Street Wormleysburg, PA 17043 : Defendants PLAINTIFFS' REQUEST FOR PRODUCTION OF DOCUMENT TO DEFENDANTS ASIAN ACCUPRESSURE MASSAGE AND LIE NIE SCHELL PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa.R.C.P. 4009.1, et seq., to serve upon the undersigned a copy of your written responses and produce for inspection, examination and copying, at the offices of Tucker Arensberg, P.C., 2 Lemoyne Drive, Suite 200, Lemoyne, Pennsylvania 17043, not later than thirty (30) days after service of this Request, the following documents. This Request for Production of Documents shall be deemed continuing in nature, in accordance with the provisions of Pa.R.C.P. 4007.4. If between the filing of your original responses to this Request for Production of Documents and the time you or anyone acting on your behalf learn of additional facts and/or documents responsive to any request, or if any response, though correct when made, is no longer true, then you shall promptly supplement your original responses, under oath, to include such information and/or documents thereafter acquired, and promptly furnish the same as Supplemental Answers to the undersigned. DEFINITIONS As used in this Request for Production of Documents, the following terms are to be interpreted in accordance with these definitions: 1. The terms "person" and "individual" include any natural person, individual, general or limited partnership, joint stock company, unincorporated association or society, municipal or other corporation, incorporated association, limited liability partnership, limited liability company, the State, its agencies or political subdivisions, any court, or any other governmental,entity. 2. "You" or "your" shall mean Defendant, Wal-Mart Stores East, LP, as well as any agent or other person or entity acting on your behalf. 3. The term "incident" shall mean the events alleged in Plaintiffs' Amended Complaint, including by not limited to the slip and fall of Plaintiff, Bonnie Nye on July 25, 2010. 4. The term "ESI" shall mean electronically stored information and shall include, but not be limited to: digital communications (e.g. e-mail, voice mail, instant messaging); word processing documents (e.g. Word or WordPerfect documents and drafts); spreadsheets and tables (e.g. Excel or Lotus 123 worksheets); accounting application data (e.g. QuickBooks, Money, Peachtree data files); image and facsimile files (e.g. PDF, TIFF, JPG, and GIF images); sound recordings (e.g. WAV and MP3 files); video and animations (e.g. AVI and MOV files); databases (e.g. Access, Oracle, SQL Server data, SAP); contact and relationship management data (e.g. Outlook, ACT!); calendar and diary application data (e.g. Outlook PST, Yahoo, blog tools); online access data (e.g. temporary internet files, history, cookies); presentations (e.g. PowerPoint, Corel Presentations); network access and activity logs; project management application data; computer aided design/drawing files; and backup and archival files (e.g. Zip, GHO). 5. The terms "document" or "documents" include all ESI, writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by you through detection devices into reasonably usable form. 6. As used herein, "involving," "in connection with," "concerning," "relating," or which "relates" to any given subject means any fact, information, event, transaction or occurrence or document that constitutes, contains, embodies, reflects, identifies, states, refers to, deals with, or is in any way pertinent to that subject, including, without limitation, documents concerning the preparation of other documents. 7. The terms "identify," "identity," or "identification," when used herein in reference to a natural person, require you to state that person's full name, last known address, home and business telephone numbers, and present business affiliation. When used in reference to a person other than a natural person, the terms "identify," "identity," or "identification" require you to describe the nature of such person (that is, whether it is a corporation, partnership, etc., under the definition of"person" above), and to state that person's last known address, telephone number, and principal place of business. Once any person has been identified properly, it shall be sufficient thereafter when identifying that same person to state the name only. 8. The terms "identify," "identity," or "identification," when used herein in reference to a document, require you to state the date, the author (and, if different, the signor or signors), the addressee, and the type of document (e.g., letter, memoranda, telegram, chart, etc.). If any such document was, but is no longer, in your possession or subject to your control, state what disposition was made of it and the reason for such disposition. 9. The terms "identify," "identity," or "identification," when used herein in reference to an oral communication, require you to state the communications medium (i.e., in person, telephonic, etc.); the place and date of each such communication; the name and current business and residence address of those who were present at each communication; and the substance and nature of each such communication. 10. As used herein, "and" as well as "or" shall be construed either conjunctively or disjunctively so as to bring within the scope of the request, any information which might otherwise be construed to be outside its scope. 11. As used herein, "each" and "any" shall be construed broadly so as to bring within the scope of the request all information which might otherwise be construed to be outside its scope. 12. The terms "contend" or "contention" shall mean any position, allegation or argument you have made or asserted concerning the subject matter of the request or which you intend to make or assert. 13. Where the singular is used with reference to any person, document or item, it shall include the plural. Where the plural is used with respect to any person, document or items, it shall include the singular. 14. The term "action" shall mean the above-captioned lawsuit, along with any allegations, defenses, matters, claims and pleadings filed therein. 15. Each and every request herein, unless otherwise stated, covers the period from July 25, 2010 through and including the date of your response. If you are in possession of additional documents which would otherwise be responsive to any request but which are dated prior to July 25, 2010, please state this fact in your response but do not produce those additional documents unless and until requested by a supplemental request. 16. If you object to producing any document on the basis of privilege (or for any other reason), you must nevertheless provide the following information in the form of a privilege log: a. the nature of the privilege claimed (including work product); b. if the privilege is being asserted in connection with a claim or defense governed by state law, the state privilege rule being invoked; C. the date of the document or oral communication; d. if a document: its type (correspondence, memorandum, facsimile, etc.), custodian, location, and such other information sufficient to identify the document for a subpoena duces tecum or a document request, including where appropriate the author, the addressee, and, if not apparent, the relationship between the author and addressee; e. if an oral communication: the place where it was made, the names of the persons present while it was made, and, if not apparent, the relationship of the persons present to the declarant; and f. the general subject matter of the document, oral communication or other information. REQUEST FOR PRODUCTION OF DOCUMENTS 1. Produce all written agreements and leases entered into with respect to the massage business operated at 704 North Front Street, Wormleysburg, Pennsylvania. RESPONSE: 2. Produce a list of the names and addresses of all of the employees of Asian Accupressure Massage from the beginning of its operation until present. RESPONSE: 3. Produce all permits obtained for signage or operation of the massage parlor located at 704 North Front Street, Wormleysburg, Pennsylvania. RESPONSE: Dated: / TUCKER ARENSBERG, P.C. By: ee C. Swartz a. Bar I.D. No. 07258 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR PLAINTIFFS H BG D B:135647-1 025598-158356 V JEFFERY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA 706 North Front Street Wormleysburg, PA 17043 NO. 3',3 /j'--3 2013 Plaintiffs CIVIL ACTION - LAW& EQUITY V. LI NIE SCHELL, trading and doing business as ASIAN ACUPRESSURE MASSAGE 704 North Front Street Wormleysburg, PA 17.043 C-3 and Cu ASIAN ACUPRESSURE MASSAGE 704 North Front Street c ' Wormleysburg, PA 17043 ` and C N) ';r, STEPHEN R. WILSON 109 Ridgewood Drive Camp Hill, PA 17011 and THE BOROUGH OF WORMLEYSBURG, by its Council Members, THOMAS L. MARTINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman, 20 Market Street Wormleysburg, PA 17043 Defendants PLAINTIFFS' REQUEST FOR PRODUCTION OF DOCUMENT TO DEFENDANT STEPHEN R. WILSON PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa.R.C.P. 4009.1, et seq., to serve upon the undersigned a copy of your written responses and produce for inspection, examination and copying, at the offices of Tucker Arensberg, P.C., 2 Lemoyne Drive, Suite 200, Lemoyne, Pennsylvania 17043, not later than thirty (30) days after service of this Request, the following documents. This Request for Production of Documents shall be deemed continuing in nature, in accordance with the provisions of Pa.R.C.P. 4007.4. If between the filing of your original responses to this Request for Production of Documents and the time you or anyone acting on your behalf learn of additional facts and/or documents responsive to any request, or if any response, though correct when made, is no longer true, then you shall promptly supplement your original responses, under oath, to include such information and/or documents thereafter acquired, and promptly furnish the same as Supplemental Answers to the undersigned. DEFINITIONS As used in this Request for Production of Documents, the following terms are to be interpreted in accordance with these definitions: 1. The terms "person" and "individual" include any natural person, individual, general or limited partnership, joint stock company, unincorporated association or society, municipal or other corporation, incorporated association, limited liability partnership, limited liability company, the State, its agencies or political subdivisions, any court, or any other governmental entity. 2. "You" or "your" shall mean Defendant, Wal-Mart Stores East, LP, as well as any agent or other person or entity acting on your behalf. 3. The term "incident" shall mean the events alleged in Plaintiffs' Amended Complaint, including by not limited to the slip and fall of Plaintiff, Bonnie Nye on July 25, 2010. 4. The term "ESI" shall mean electronically stored information and shall include, but not be limited to: digital communications (e.g. e-mail, voice mail, instant messaging); word processing documents (e.g. Word or WordPerfect documents and drafts); spreadsheets and tables (e.g. Excel or Lotus 123 worksheets); accounting application data (e.g. QuickBooks, Money, Peachtree data files); image and facsimile files (e.g. PDF, TIFF, JPG, and GIF images); sound recordings (e.g. WAV and MP3 files); video and animations (e.g. AVI and MOV files); databases (e.g. Access, Oracle, SQL Server data, SAP); contact and relationship management data (e.g. Outlook, ACT!); calendar and diary application data (e.g. Outlook PST, Yahoo, blog tools); online access data (e.g. temporary internet files, history, cookies); presentations (e.g. PowerPoint, Corel Presentations); network access and activity logs; project management application data; computer aided design/drawing files; and backup and archival files (e.g. Zip, GHO). 5. The terms "document" or "documents" include all ESI, writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by you through detection devices into reasonably usable form. 6. As used herein, "involving," "in connection with," "concerning," "relating," or which "relates" to any given subject means any fact, information, event, transaction or occurrence or document that constitutes, contains, embodies, reflects, identifies, states, refers to, deals with, or is in any way pertinent to that subject, including, without limitation, documents concerning the preparation of other documents. 7. The terms "identify," "identity," or "identification," when used herein in reference to a natural person, require you to state that person's full name, last known address, home and business telephone numbers, and present business affiliation. When used in reference to a person other than a natural person, the terms "identify," "identity," or "identification" require you to describe the nature of such person (that is, whether it is a corporation, partnership, etc., under the definition of"person" above), and to state that person's last known address, telephone number, and principal place of business. Once any person has been identified properly, it shall be sufficient thereafter when identifying that same person to state the name only. 8. The terms "identify," "identity," or "identification," when used herein in reference to a document, require you to state the date, the author (and, if different, the signor or signors), the addressee, and the type of document (e.g., letter, memoranda, telegram, chart, etc.). If any such document was, but is no longer, in your possession or. subject to your control, state what disposition was made of it and the reason for such disposition. 9. The terms "identify," "identity," or "identification," when used herein in reference to an oral communication, require you to state the communications medium (i.e., in person, telephonic, etc.); the place and date of each such communication; the name and current business and residence address of those who were present at each communication; and the substance and nature of each such communication. 10. As used herein, "and" as well as "or" shall be construed either conjunctively or disjunctively so as to bring within the scope of the request, any information which might otherwise be construed to be outside its scope. 11. As used herein, "each" and "any" shall be construed broadly so as to bring within the scope of the request all information which might otherwise be construed to be outside its scope. 12. The terms "contend".or "contention" shall mean any position, allegation or argument you have made or asserted concerning the subject matter of the request or which you intend to make or assert. 13. Where the singular is used with reference to any person, document or item, it shall include the plural. Where the plural is used with respect to any person, document or items, it shall include the singular. 14. The term,"action" shall mean the above-captioned lawsuit, along with any allegations, defenses, matters, claims and pleadings filed therein. 15. Each and every request herein, unless otherwise stated, covers the period from July 25, 2010 through and including the date of your response. If you are in possession of additional documents which would otherwise be responsive to any request but which are dated prior to July 25, 2010, please state this fact in your response but do not produce those additional documents unless and until requested by a supplemental request. 16. If you object to producing any document on the basis of privilege (or for any other reason), you must nevertheless provide the following information in the form of a privilege log: a. the nature of the privilege claimed (including work product); b. if the privilege is being asserted in connection with a claim or defense governed by state law, the state privilege rule being invoked; C. the date of the document or oral communication; d. if a document: its type (correspondence, memorandum, facsimile, etc.), custodian, location, and such other information sufficient to identify the document for a subpoena duces tecum or a document request, including where appropriate the author, the addressee, and, if not apparent, the relationship between the author and addressee; e. if an oral communication: the place where it was made, the names of the persons present while it was made, and, if not apparent, the relationship of the persons present to the declarant; and f. the general subject matter of the document, oral communication or other information. REQUEST FOR PRODUCTION OF DOCUMENTS 1. Produce all leases or other written agreements or other written communications involving the premises located at 704 North Front Street, Wormleysburg, Pennsylvania including but not limited to the business of Asian Acupressure Massage. RESPONSE: 2. Produce all permits obtained for signage or operation of the massage parlor located at 704 North Front Street, Wormleysburg, Pennsylvania. RESPONSE: 3. List all income received from the leasing to or operation of Asian Acupressure Massage at 704 North Front Street, Wormleysburg, Pennsylvania. RESPONSE: Dated:-/3% TUCKER ARENSBERG, P.C. By: L&e C. Swartz` Pa. Bar I.D. No. 07258 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR PLAINTIFFS H BG D B:135646-1 025598-158356 jr JEFFERY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. -13 - :his 3 2013 V. CIVIL ACTION - LAW& EQUITY LI NIE SCHELL, trading and doing business as ASIAN ACUPRESSURE MASSAGE JURY TRIAL DEMANDED and STEPHEN R. WILSON and MCD THE BOROUGH OF WORMLEYSBURG, by its Council Members, THOMAS L. MARTINI, President, STEPHEN M. HAWBECKER, -<> Ln C) Vice President, JOSEPH DEKLINSKI, SUE < STUART, WARREN STUMPF, MARGARET > =C:) STUSKI, DENNIS REDDING, SR., LUKAS C) DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman Defendants RETURN OF SERVICE ON BOROUGH OF WORMLEYSBURG COUNCIL MEMBERS AND SERVER'S AFFIDAVIT 1, Lee C. Swartz, do hereby swear that on the H'+k day of Lx yj e- 2013, 1 served the following members of the Wormleysburg Borough Council by handing copies of the Complaint in the above-captioned action to Gqr✓ oerrp_s OCA at the Borough offices at 20 Market Street, r6W4-V1-%V' N.O ages . Wormleysburg, PA at bAVA pursuant to PA. Rule of Civil Procedure 400 (b)(1). Members served listed below were: Thomas L. Martini Stephen M. Hawbecker Joseph Deklinski Sue Stuart ; r U' Warren StLmpf Margaret Stuski Dennis Redding, Sr. Lukas Deklinski Zachary Kahler A copy for each member was served. Commonwealth of Pennsylvania: :S County of Cumberland 4D , 47C. Swartz, squire Sworn to before me this day of June, 2013 Notary Pu lic COMMONWEALTH OP PENNSYLVANIA Notarial seal Pauline Patti Thomas,Notary Public Lemoyne Born,Cumberland County Commission Ex Ires March 24 �Al� _ MEMBER PENMSYLVANIA ASSOCIA77ON®f'N®fiA 9 2 I i i, i i i JEFFERY D. TINSMAN and : IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. /3 - 3/5S , 2013 v. • CIVIL ACTION - LAW LI NIE SCHELL, TRADING AND DOING • BUSINESS AS ASIAN ACUPRESSURE • MASSAGE, and ASIAN ACUPRESSURE MASSAGE • and • STEPHEN R. WILSON • and • two THE BOROUGH OF WORMLEYSBURG, by : its Council Members, THOMAS L. MARTINI, : rn (- President, STEPHEN M. HAWBECKER, : Vice President, JOSEPH DEKLINSKI, SUE : U'` I T" STUART, WARREN STUMPF, MARGARET : -, STUSKI, DENNIS REDDING, SR., LUKAS .< .... `' y' DEKLINSKI, Junior Councilman, and = ZACHARY KAHLER, Junior Councilman, • 20 Market Street Wormleysburg, PA 17043 • Defendants : RULE TO SHOW CAUSE AND NOW, this £.256 day of June, 2013, upon consideration of the action in equity requesting a preliminary injunction as set forth in the second cause of action of the above captioned Complaint, a rule is issued upon all defendants to show cause why the plaintiff is not entitled to the relief requested. The respondent shall file an answer to this rule within / 0 days of this date. *� ��w �` �7 T-, day of June, 2013 �'3' PK A hearing is hereby scheduled for the y .�a� BY _ URT: J. To: Nie Schell, t/d/b/a Asian Acupressure Massage, 704 North Front Street, Wormleysburg, Pa 17043 „Asian Acupressure Massage, 704 North Front Street, Wormleysburg, Pa 17043 .Stephen R. Wilson, 109 Ridgewood Drive, Camp Hill, Pa 17011 /The Borough of Wormleysburg, 20 Market Street, Wormleysburg, Pa 17043 by its council members: homas L. Martini, President ,4tephen M. Hawbecker, Vice President /J'oseph Deklinski Wile Stuart Warren Stumpf ,Margaret Stuski ./Dennis Redding Sr. ,/Cukas Deklinski, Junior Councilman �achary Kahler, Junior Councilman 14441 L . z, „kx inzitsci /../-743 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson � Sheriff at 01101 e 4'4 x ^n 019 Jody S Smith , --or- Chief Deputy ' , cnr" m C Richard W Stewart Solicitor OFF C?Fn OF LH VSPI P 53 M, � © —i0,I Jeffery Donald Tinsman Case Number vs. 2013-3153 Li Nie Schell trading and doing business as Asian Accupressure Massage(et al.) SHERIFF'S RETURN OF SERVICE 06/05/2013 12:53 PM- Deputy Noah Cline, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Li Nie Schell Business owner, who accepted as"Adult Person in Charge"for Li Nie Schell trading and doing business as Asian Accupressure Massage at 704 N. Front Street, Wormleysburg Borough, Wormlesyburg�, PEA 17043. NOAH CLINE, DEPUTY 06/05/2013 12:53 PM - Deputy Noah Cline, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Li Nie Schell, Business owner, who accepted as"Adult Person in Charge"for Asian Accupressure Massage at 704 N. Front Street, Wormleysburg Borough, Wormlesyburg, PA 17043. �p NOAH CLINE, DEPUTY 06/07/2013 06:07 PM -Deputy Amanda Cobaugh, being duly sworn according to law, served the requested Complaint&Notice by"personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Stephen R Wilson at 109 Ridgewood Drive, Camp Hill,43orough, Camp Hill, PA 17011. a AMAN A COBAUGH, DEPUTY F SHERIFF.COST: $95.49 SO ANSWERS, June 10, 2013 RbNWY R ANDERSON, SHERIFF (ct CountySuite Sheriff,Teleosoft,Inc. MAYERS,MENNIES & SHERR ,LLP BY: ANTHONY R. SHERR, ESQUIRE IDENTIFICATION NO. 44603 ATTORNEY FOR DEFENDANT 3031 WALTON ROAD, BUILDING A The Borough of Wormleysburg, by SUITE 330, P.O. BOX 1547 its council members, Thomas L. BLUE BELL, PA 19422-0440 Martini, et al. (610) 825-0300 JEFFREY D. TINSMAN and ELIZABETH P. TINSMAN, his wife: Plaintiffs V. COURT OF COMMON PLEAS LI NIE SCHELL, trading as and doing CUMBERLAND COUNTY business as ASIAN ACUPRESSURE MASSAGE and ASIAN ACUPRESSURE MASSAGE rn , and STEPHEN R. WILSON NO. 13-3153, 2013 and <= THE BOROUGH OF WORMLEYSBURG CD by its council members, THOMAS L. CIVIL ACTION- LAW ► MARTINI, President, STEPHEN M. : HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, The Borough of Wormleysburg, by its council members, Thomas L. Martini, Stephen M. Hawbecker,Joseph Deklinski, Sue Stuart,Warren Stumpf, Margaret Stuski, Dennis Redding, Sr. Lukas Deklinski and Zachary Kahler, in the above- captioned matter. Defendant,The Borough of Wormlesyburg, by its council members,Thomas L. Martini,et al., by and through its undersigned attorney, hereby demands a trial by jury in the above matter. MAYERS, MENNIES & SHERR, LLP BY: Ca Anthony R. Sherr, Esquire Attorney for Defendant Date: ` MAYERS, MENNIES & SHERR , LLP BY: ANTHONY R. SHERR, ESQUIRE IDENTIFICATION NO. 44603 ATTORNEY FOR DEFENDANT 3031 WALTON ROAD, BUILDING A The Borough of Wormleysburg, by SUITE 330, P.O. BOX 1547 its council members, Thomas L. BLUE BELL, PA 19422-0440 Martini, et al. (610) 825-0300 JEFFREY D. TINSMAN and ELIZABETH P. TINSMAN, his wife Plaintiffs V. COURT OF COMMON PLEAS LI NIE SCHELL, trading as and doing CUMBERLAND COUNTY business as ASIAN ACUPRESSURE . MASSAGE and w'-- ASIAN ACUPRESSURE MASSAGE : and STEPHEN R. WILSON NO. 13-3153, 2013 and THE BOROUGH OF WORMLEYSBURG -- by its council members, THOMAS L. CIVIL ACTION - LAW =° 4 MARTINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman Defendants DEFENDANT BOROUGH OF WORMLEYSBURG, BY ITS COUNCIL MEMBERS, THOMAS L. MARTINI, PRESIDENT, STEPHEN M. HAWBECKER, VICE PRESIDENT, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., JUNIOR COUNCILMAN, AND ZACHARY KAHLER, JUNIOR COUNCILMAN'S ANSWER TO RULE TO SHOW CAUSE NOW COMES Defendant, Borough of Wormleysburg by its council members Thomas L. Martini, Stephen M. Hawbecker, Joseph Deklinski, Sue Stuart, Warren Stumpf, Margaret Stuski, Dennis Redding, Sr. Lukas Deklinski and Zachary Kahler, by and through its authorized counsel of record, Mayers, Mennies and Sherr, LLP and files this Answer to Rule to Show Cause, without waiving and subject to its Preliminary Objections to Plaintiffs' Complaint.' In support of its Answer avers as follows: I. INTRODUCTION 1. Plaintiffs Jeffrey and Elizabeth Tinsman filed their Complaint against Defendants Lie Ni Schell t/a and d/b/a Asian Acupressure Massage, Asian Acupressure Massage, Stephen R. Wilson, and the Borough of Wormleysburg. 2. The gravamen of Plaintiffs' Complaint is their allegations that the house next door to them, owned by Defendant Stephen R. Wilson and occupied by Defendants Lie Ni Schell and Asian Acupressure Massage, is violating zoning ordinances and creating a nuisance that negatively impacts the Plaintiffs. See generally, Plaintiffs' Complaint. 3. The Plaintiffs request that this Court command Answering Defendant, the Borough of Wormleysburg, to order the other Defendants to cease and desist operation of the massage parlor and force Asian Acupressure Massage to vacate the premises and remove all its equipment from the premises. See Plaintiffs' Complaint, at ad damnum clauses for Counts I and II. 4. Plaintiffs' request for injunctive relief must be denied because: (1) this Court does not have jurisdiction over zoning disputes; (2) the Borough of Wormleysburg is immune from the Plaintiffs' nuisance claims pursuant to the Governmental Immunity Act; (3) injunctive relief is not available against the Borough under the facts alleged; and (4) alternatively, further discovery is needed with regard to the Plaintiffs' factual allegations in their Complaint. 11. STATEMENT OF THE CASE 5. Plaintiffs instituted this action by a filing a Complaint on or about June 3, 2013. 6. Plaintiffs' Complaint seeks equitable relief for"Violation of Zoning Ordinance" and to "Enjoin Nuisance." See Plaintiffs' Complaint, Count I, First and Second Causes of Action. 1 Answering Defendants intend to timely file Preliminary Objections in accordance with the Pennsylvania Rules of Civil Procedure. 2 7. Plaintiffs' further alleged an "Action in Mandamus" to command the Borough of Wormleysburg to force Asian Acupressure Massage to cease and desist and to vacate the premises located at 704 North Front Street, Wormleysburg, Pennsylvania. See Plaintiffs' Complaint, Count II. 8. Plaintiffs allege that they live in the property next door to Asian Acupressure Massage, 706 North Front Street. See Plaintiffs' Complaint, T% 1, 7. 9. Plaintiffs specifically allege that the operation of Asian Acupressure Massage is in violation of the Zoning Code, "particularly the R-1 Residential Zone in which it is situated." See Plaintiffs' Complaint, 110. 10. Plaintiffs allege that the Borough of Wormleysburg "has continued to permit the illegal use of the property at 704 North Front Street as a massage parlor, contrary to the objections of Plaintiffs, and, in fact, has permitted such use by oral agreement to either the Defendant Wilson or the owners of Asian Acupressure Massage or both." See Plaintiffs' Complaint, ¶ 11. 11. Plaintiffs also allege that the Borough of Wormleysburg granted Asian Acupressure Massage the right to erect a neon sign advertising its business contrary to the Borough's sign ordinance. See Plaintiffs' Complaint, 112. 12. Plaintiffs further allege that "illegal activities" take place at Asian Acupressure Massage, and that Defendants Wilson and Borough of Wormleysburg continue to permit the activity therein. See Plaintiffs' Complaint, ¶ 16. 13. Plaintiffs request that the Court, among other things, "enter an order commanding the Borough of Wormleysburg to order the Defendants Wilson, Li Nie Schell and Asian Acupressure Massagfe to cease and desist from operating a massage parlor on the premises located at 704 North Front Street, Wormleysburg, PA, and to cancel and revoke any leases and permits, oral or written, permitting such use and to grant damages for the devaluation of their 3 property and emotional distress in excess of $10,000." See Plaintiffs' Complaint, ad damnum, Count I First Cause of Action. 14. Plaintiffs further request that the Court, among other things, require that the Borough of Wormleysburg "issue a citation to the Defendants Wilson, Li Nie Schell and Asian Acupressure Massage to cease the operation of a massage parlor at 704 North Front Street, Wormleysburg, Pennsylvania, and utilize the police powers to enforce such citation." See Plaintiffs' Complaint, ad damnum, Count I Second Cause of Action at (b). 15. Plaintiffs also attempt to alllege a count in mandamus, requesting the Court to "enter a preemptory [sic] judgment order under Pa.R.C.P. 1098 commanding the Defendant Borough of Wormleysburg through its Council members to issue a citation and take all steps necessary to require Li Nie Schell, Asian Acupressure Massage and Stephen R. Wilson to cease the operation of a massage parlor at 704 North Front Street...and to order Asian Acupressure Massage to vacate the premises and remove all its equipment and to exercise its police powers, if necessary, to accomplish such purposes." See Plaintiffs' Complaint, ad damnum, Count II. III. LEGAL STANDARD A. Plaintiffs Have Not Sustained Their Burden of Proof Pursuant to Pa.R.C.P. 1098 16. Pennsylvania Rule of Civil Procedure 1098 provides: "At any time after the filing of the complaint, the court may enter judgment if the right of the plaintiff thereto is clear. Judgment shall not be entered without prior notice to all parties unless the exigency of the case is such as to require action before notice, in which event notice shall be given as soon as possible." 17. Motions for peremptory judgment in mandamus under this rule are to be determined by the principles governing the disposition of summary judgment motions. See Ambridge Water Authority v. Ambridge Borough, 13 Pa. D. & C.3d 303 (1980). 4 18. A Peremptory judgment motion cannot be granted unless moving party is entitled to judgment as a matter of law. See Aiken v. Radnor Tp. Bd. of Sup'rs, 476 A.2d 1383, 83 Pa.Cmwlth. 190 (1984). 19. Under this rule, the Court must consider both the. record actually presented and record potentially possible at time of trial, and the judgment can be entered only in clearest of cases where there is not the slightest doubt as to absence of an issue of material fact. See Wolgemuth v. Kleinfelter, 437 A.2d 1329, 63 Pa.Cmwlth. 395 (1981). 20. Summary judgment in mandamus is equivalent of peremptory mandamus and will be granted only when right to require performance of an act is clear and it is apparent that no valid excuse for nonperformance can be given. See Shroyer v. Thomas, 81 A.2d 435, 368 Pa. 70 (1951). 21. The party moving for peremptory judgment has the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law, and the record must be examined in light most favorable to nonmoving party. See Wolgemuth v. Kleinfelter, 437 A.2d 1329, 63 Pa.Cmwlth. 395 (1981). 22. Where the court is aware that it faces the probability of contested factual averments, granting of summary judgment prior to an answer constitutes an abuse of the court's discretionary powers, although this rule does not require that an answer be filed before granting relief. See Allegheny County v. Venneri, 289 A.2d 523, 5 Pa.Cmwlth. 105 (1972). 23. The Plaintiffs allege a number of facts that require further discovery and investigation, should Defendant Borough of Wormleysburg's preliminary objections be overruled; for example, Plaintiffs' allegations regarding the location of Asian Acupressure Massage, who owns the Asian Acupressure Massage, the business practices of Asian Acupressure Massage, Defendants' knowledge of Asian Acupressure Massage's business practices, the actual impact (if any) Asian Acupressure Massage's presence has on Plaintiffs' property, particularly with regard to patronage and property value, etc. 5 24. Examining the record in light most favorable to Defendants, the Plaintiffs' Complaint raises a number of disputed facts that require further discovery, which precludes entry of peremptory judgment in their favor pursuant to Pa.R.C.P 1098. WHEREFORE, Defendant Borough of Wormleysburg respectfully requests that this Honorable Court discharge its Rule to Show Cause and deny the Plaintiffs' request for peremptory relief under Pa.R.C.P. 1098. B. Plaintiffs' Challenge to Zoning Lies Exclusively within Purview of Zoning Hearing Board. 25. Defendant Borough of Wormleysburg hereby incorporates by reference the above paragraphs as though set forth at length herein. 26. The Municipalities Planning Code "MPC" provides exclusive jurisdiction to the zoning hearing board for review of various decisions, including in part substantive challenges to land use ordinances, and applications for variances or special exceptions. 53 P.S. § 10909. 27. The MPC provides the exclusive procedure by which to challenge a land use decision, including exclusive appeal provisions. 53 P. S. § 11001-A ("The procedures set forth in this article shall constitute the exclusive mode for securing review of any decision rendered pursuant to Article IX or deemed to have been made under this act."); 53 P.S. § 10909.1 28. It is beyond reasonable argument that "exclusive jurisdiction" means to the exclusion of all others. Harris-Walsh Inc. v. Borough of Dickson City, 420 Pa. 259, 270-71, 216 A.2d 329, 335 (1966). 29. Plaintiffs' Complaint essentially asks this Court to review the Borough's decision regarding the use of the property without any allegation that the Plaintiffs have properly pursued and exhausted procedures pursuant to the MPC. 6 30. Therefore, this Court lacks subject matter jurisdiction over the Defendant Borough of Wormleysburg's decisions regarding the Co-Defendant's use of the property. WHEREFORE, Defendant Borough of Worm leysburg respectfully requests that this Honorable Court discharge its Rule to Show Cause and deny the Plaintiffs' request for peremptory relief pursuant to Pa.R.C.P. 1098. C. Defendant Borough of Wormleysb'urg is Immune from Plaintiffs' Nuisance Claims. 31. Defendant Borough of Wormleysburg hereby incorporates by reference the above paragraphs as though set forth at length herein. 32. Pursuant to the Pennsylvania Governmental Immunity Act, municipal Defendants and their employees are provided immunity from state law tort claims. 42 Pa. C.S. §8541 et seg. 33. Pursuant to 42 Pa. C.S. §8541, no local agency shall be liable for any damage on account of any injury to a person or property caused by any act of the local agency or any employee thereof or any other person, except as otherwise provided in that subchapter. 34. In other words, tort claims generally are barred by the Governmental Immunity Act. See Henley v. Octorara Area School Dist., 701 F. Supp. 545 (E.D. Pa. 1988). 35. As a general rule, municipalities and their employees are absolutely immune from liability pursuant to the provisions of Pennsylvania Governmental Immunity Act, 42 Pa. C.S. §8541 et sec. 36. Pursuant to 42 Pa. C.S. §8541, no local agency shall be liable for any damage on account of any injury to a person or property caused by any act of the local agency or any employee thereof or any other person, except as otherwise provided in that subchapter.2 The 2 An individual's immunity is lost only if, "... it is judicially determined that the act of the employee caused the injury and that such act constituted a crime,actual fraud,actual malice, or willful misconduct." 42 Pa.C.S. § 8550. 7 Act grants broad immunity to municipal defendants based on intentional conduct, only waiving it with respect to eight narrow categories of negligent acts. 42 Pa. C.S. § 8542(b). 37. In order to impose liability against a municipality, the Plaintiff must meet a two- prong test. As a threshold requirement, the Plaintiff must demonstrate that the Defendant owed him/her a common law or statutory duty that the Defendant breached that duty and that the injuries claimed were caused by the negligent acts of the municipality or an employee thereof acting within the scope of his/her office or duties. 42 Pa. C.S. §8542(a)(1). 38. Additionally, the allegedly negligent act must fall within one of the exceptions to immunity enumerated at 42 Pa. C.S. §8542(b). Briefly, these exceptions include: vehicle liability; care, custody or control of personal property; real property; trees, traffic controls and street lighting; utility service facilities; streets; sidewalks; and care, custody or control of animals. 42 Pa. C.S. §8542(b). 39. In construing and applying these exceptions, the legislature expressly intended to insulate political subdivisions from liability. City of Phila. v. Melendez, 156 Pa. Cmwlth. 271, 627 A.2d 234, 235 (1993), citing, Snyder v. Harmon, 522 Pa. 524, 562 A.2d 307 (1989). Thus, all the exceptions must be narrowly construed in favor of immunity. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118, 1123 (1987); Tyree v. City of Pittsburgh, 669 A.2d 487, 490 (Pa. Cmwlth. 1995). 40. Here, Plaintiff's Complaint as alleged fails to state a cause of action sufficient to sustain a waiver of governmental immunity pursuant to 42 Pa. C.S. §8541 et seq. 41. The Plaintiffs allege that the Borough of Wormleysburg "granted the right of the occupants of 704 North Front Street to erect an unsightly neon sign advertising its business." See Plaintiffs' Complaint, 112. 42. The Plaintiffs further allege that the Borough of Wormleysburg permitted Asian Acupressure Massage's use of the property "by oral agreement to either the Defendant Wilson or the owners of Asian Acupressure Massage or both." See Plaintiffs' Complaint, % 11. 8 43. The Borough of Wormleysburg's decision to grant Asian Acupunture Permission to erect a sign and to continue its business activities within the zone in which it is located are discretionary functions of the Borough. 44. There is no common law right or statute which would permit a cause of action against the Borough. 45. Plaintiffs' allegations do not fit within any of the exceptions to immunity. 42 Pa. §8542(b). 46. Therefore, the Borough of Wormleysburg is immune from the Plaintiffs' claims pursuant to the Governmental Immunity Act. D. Plaintiffs Fail to Establish Elements of Mandamus 47. Defendant Borough of Wormleysburg hereby incorporates by reference the above paragraphs as though set forth at length herein. 48. Mandamus is an extraordinary remedy designed to compel official performance of a mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant and a lack of any other adequate and appropriate remedy at law. Crozer Chester Medical Center v. Department of Labor and Industry Bureau of Workers' Compensation, 955 A.2d 1037 (Pa. Commw. 2008). 49. A defendant in Mandamus may plead any defenses by preliminary objections upon any of the grounds prescribed by the Rules of Civil Procedure in civil actions, generally. Erie Firefighters Local No. 293 of Intern. Ass'n of Firefighters v. Gardner, 178 A.2d 691 (Pa.1962). 50. "Mandamus may be used only to compel performance of a purely ministerial or mandatory duty, and cannot be used to control exercise of discretion by public official or administrative or judicial tribunal, or to review or compel undoing of action taken by such official or tribunal in good faith and in exercise of legitimate jurisdiction, or to influence or coerce particular determination of issue involved, or to perform function of appeal or writ of error, 9 though no appeal or writ of error is permitted by law." Kaufman Const. Co. v. Holcomb, 55 A.2d 534 (Pa.1947). 51. Here, Plaintiffs attempt to allege a claim against the Borough for the purported failure to enforce its ordinances, which is not cognizable. 52. Moreover, Plaintiffs apparently seek to enjoin or compel the Borough of Wormleysburg to refrain from certain actions which they presumably claim are somehow ministerial or mandatory. 53. However, the consideration of whether to issue a permit requires deliberation and discretion, including review of whether a permit complies with various ordinances. 54. Plaintiffs also have an adequate remedy at law which must be pursued with the Zoning Hearing Board. 55. Therefore, Plaintiffs' alleged mandamus claim fails. E. Plaintiffs Fail to Establish Elements Required for Injunctive Relief. 56. Defendant Borough of Wormleysburg hereby incorporates by reference the above paragraphs as though set forth at length herein. 57. In order to prevail on a claim for a permanent injunction, the party must establish, "that his right to relief is clear; that there is urgent necessity to avoid injury which cannot be compensated for by damages; and the greater injury will result from refusing rather than granting the relief requested." P.J.S. v. Pennsylvania State Ethics Commission, 669 A.2d 1105, 1112 (Cmwlth. Ct. 1996). 58. The Complaint as pled fails to allege any claim of irreparable harm. 59. Furthermore, Plaintiffs can be compensated by damages and have an adequate remedy at law which they now pursue against the adjacent property owners. 60. Based on the foregoing, Plaintiffs are not entitled to injunctive relief. 10 WHEREFORE, Defendant Borough of Wormleysburg respectfully requests that this Honorable Court discharge its Rule to Show Cause and deny the Plaintiffs' request for peremptory relief pursuant to Pa.R.C.P. 1098. IV. CONCLUSION For the foregoing reasons, Defendant Borough of Wormleysburg respectfully requests that this Honorable Court discharge its Rule to Show Cause and deny the Plaintiffs' request for peremptory relief pursuant to Pa.R.C.P. 1098. Respectfully submitted, MAYERS, MENNIES & SHERR, LLP BY: N Y R. 1-11- RR SQUIRE Attorney for Defendant Borough of Wormleysburg 11 MAYERS, MENNIES & SHERR , LLP BY: ANTHONY R. SHERR, ESQUIRE IDENTIFICATION NO. 44603 ATTORNEY FOR DEFENDANT 3031 WALTON ROAD, BUILDING A The Borough of Wormleysburg, by SUITE 330, P.O. BOX 1547 its council members, Thomas L. BLUE BELL, PA 19422-0440 Martini, et al. (610) 825-0300 JEFFREY D. TINSMAN and ELIZABETH P. TINSMAN, his wife Plaintiffs V. COURT OF COMMON PLEAS LI NIE SCHELL, trading as and doing CUMBERLAND COUNTY business as ASIAN ACUPRESSURE MASSAGE and ASIAN ACUPRESSURE MASSAGE : and STEPHEN R. WILSON NO. 13-3153, 2013 and THE BOROUGH OF WORMLEYSBURG, by its council members, THOMAS L. CIVIL ACTION - LAW MARTINI, President, STEPHEN M. : HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman Defendants DEFENDANT BOROUGH OF WORMLEYSBURG, BY ITS COUNCIL MEMBERS, THOMAS L. MARTINI PRESIDENT STEPHEN M. HAWBECKER VICE PRESIDENT JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., JUNIOR COUNCILMAN, AND ZACHARY KAHLER, JUNION COUNCILMAN'S MEMORANDUM OF LAW IN SUPPORT OF ITS ANSWER TO RULE TO SHOW CAUSE I. INTRODUCTION Plaintiffs Jeffrey and Elizabeth Tinsman allege that they are entitled to immediate relief against Lie Ni Schell t/a and d/b/a Asian Acupressure Massage, Asian Acupressure Massage, Stephen R. Wilson, and the Borough of Wormleysburg by its council members Thomas L. Martini, Stephen M. Hawbecker, Joseph Deklinski, Sue Stuart, Warren Stumpf, Margaret Stuski, Dennis Redding, Sr. Lukas Deklinski and Zachary Kahler. The gravamen of Plaintiffs' Complaint is their allegation that the house next door, owned by Defendant Stephen R. Wilson and occupied by Defendants Lie Ni Schell and Asian Acupressure Massage is creating a nuisance that negatively impacts the Plaintiffs. See generally, Plaintiffs' Complaint. Their request for injunctive relief must be denied. The Plaintiffs request that this Court command Answering Defendant, the Borough of Wormleysburg by its council, to order the other Defendants to cease and desist operation of the massage parlor and force Asian Acupressure Massage to vacate the premises and remove all its equipment from the premises. See Plaintiffs' Complaint, at ad damnum clauses for Counts I and 11. Plaintiffs' request for injunctive relief must be denied because: (1) this Court does not have jurisdiction over zoning disputes; (2) the Borough of Wormleysburg is immune from the Plaintiffs' nuisance claims pursuant to the Torts Claims Act; (3) injunctive relief is not available against the Borough under the facts alleged; (4) in the alternative, discovery is needed with regard to the factual allegations in Plaintiffs' Complaint.. 11. MATTER BEFORE THE COURT Whether this Honorable Court should discharge the Rule to Show. Cause and deny Plaintiffs' requested peremptory judgment where (1) Plaintiffs raise issues of material fact in their Complaint; (2) the Zoning Hearing Board retains exclusive jurisdiction over the allegations that Defendants are in violation of local zoning ordinances; (3) the Plaintiffs' allegations against Borough of Wormleysburg arise solely from its exercise of discretionary functions, claims which do not remove the Borough from immunity under the Pennsylvania Governmental Immunity Act nor entitle Plaintiffs to injunctive relief against the Borough; and (4) Plaintiffs fail to establish their entitlement to injunctive relief? Suggested Answer Yes. III. STATEMENT OF THE CASE Plaintiffs instituted this action by a filing a Complaint on or about June 3, 2013. Plaintiffs' Complaint seeks equitable relief for "Violation of Zoning Ordinance" and to "Enjoin Nuisance." 2 See Plaintiffs' Complaint, Count I, First and Second Causes of Action. Plaintiffs' further alleged an "Action in Mandamus" to command the Borough of Wormleysburg to force Asian Acupressure Massage to cease and desist and to vacate the premises located at 704 North Front Street, Wormleysburg, Pennsylvania. See Plaintiffs' Complaint, Count ll. Plaintiffs allege that they live in the property next door to Asian Acupressure Massage, 706 North Front Street. See Plaintiffs' Complaint, 111, 7. Plaintiffs specifically allege that the operation of Asian Acupressure Massage is in violation of the Zoning Code, "particularly the R-1 Residential Zone in which it is situated." See Plaintiffs' Complaint, 110. Plaintiffs allege that the Borough of Wormleysburg "has continued to permit the illegal use of the property at 704 North Front Street as a massage parlor, contrary to the objections of Plaintiffs, and, in fact, has permitted such use by oral agreement to either the Defendant Wilson or the owners of Asian Acupressure Massage or both." See Plaintiffs' Complaint, % 11. Plaintiffs also allege that the Borough of Wormleysburg granted Asian Acupressure Massage the right to erect a neon sign advertising its business contrary to the Borough's sign ordinance. See Plaintiffs' Complaint, 112. Plaintiffs further allege that "illegal activities" take place at Asian Acupressure Massage, and that Defendants Wilson and Borough of Wormleysburg continue to permit the activity therein. See Plaintiffs' Complaint, 116. Plaintiffs request that the Court, among other things, "enter an order commanding the Borough of Wormleysburg to order the Defendants Wilson, Li Nie Schell and Asian Acupressure Massagfe to cease and desist from operating a massage parlor on the premises located at 704 North Front Street, Wormleysburg, PA, and to cancel and revoke any leases and permits, oral or written, permitting such use and to grant damages for the devaluation of their property and emotional distress in excess of $10,000." See Plaintiffs' Complaint, ad damnum, Count I First Cause of Action. Plaintiffs further request that the Court, among other things, require that the Borough of Wormleysburg "issue a citation to the Defendants Wilson, Li Nie Schell and Asian Acupressure Massage to cease the operation of a massage parlor at 704 North Front Street, 3 Wormleysburg, Pennsylvania, and utilize the police powers to enforce such citation." See Plaintiffs' Complaint, ad damnum, Count I Second Cause of Action at (b). Plaintiffs also attempt to alllege a count in mandamus, requesting the Court to "enter a preemptory [sic] judgment order under Pa.R.C.P. 1098 commanding the Defendant Borough of Wormleysburg through its Council members to issue a citation and take all steps necessary to require Li Nie Schell, Asian Acupressure Massage and Stephen R. Wilson to cease the operation of a massage parlor at 704 North Front Street...and to order Asian Acupressure Massage to vacate the premises and remove all its equipment and to exercise its police powers, if necessary, to accomplish such purposes." See Plaintiffs' Complaint, ad damnum, Count 11.111. LEGALSTANDARD A. Plaintiffs Have Not Sustained Their Burden of Proof Pursuant to Pa.R.C.P. 1098 Pennsylvania Rule of Civil Procedure 1098 provides: "At any time after the filing of the complaint, the court may enter judgment if the right of the plaintiff thereto is clear. Judgment shall not be entered without prior notice to all parties unless the exigency of the case is such as to require action before notice, in which event notice shall be given as soon as possible." Motions for peremptory judgment in mandamus under this rule are to be determined by the principles governing the disposition of summary judgment motions. See Ambridge Water Authority v. Ambridge Borough, 13 Pa. D. & C.3d 303 (1980). A Peremptory judgment motion cannot be granted unless moving party is entitled to judgment as a matter of law. See Aiken v. Radnor Tp. Bd. of Sup'rs, 476 A.2d 1383, 83 Pa.Cmwlth. 190 (1984). Under this rule, the Court must consider both the record actually presented and record potentially possible at time of trial, and the judgment can be entered only in clearest of cases where there is not the slightest doubt as to absence of an issue of material fact. See Wolgemuth v. Kleinfelter, 437 A.2d 1329, 63 Pa.Cmwlth. 395 (1981). Summary judgment in mandamus is equivalent of peremptory mandamus and will be granted only when right to require performance of an act is clear and it is apparent that no valid 4 excuse for nonperformance can be given. See Shrover v. Thomas, 81 A.2d 435, 368 Pa. 70 (1951). The party moving for peremptory judgment has the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law, and the record must be examined in light most favorable to nonmoving party. See Wolgemuth v. Kleinfelter, 437 A.2d 1329, 63 Pa.Cmwlth. 395 (1981). Where the court is aware that it faces the probability of contested factual averments, granting of summary judgment prior to an answer constitutes an abuse of the court's discretionary powers, although this rule does not require that an answer be filed before granting relief. See Allegheny County v. Venneri, 289 A.2d 523, 5 Pa.Cmwlth. 105 (1972). The Plaintiffs allege a number of facts that require further discovery and investigation, should Defendant Borough of Wormleysburg's preliminary objections be overruled; for example, Plaintiffs' allegations regarding the location of Asian Acupressure Massage, who owns the Asian Acupressure Massage, the business practices of Asian Acupressure Massage, Defendants' knowledge of Asian Acupressure Massage's business practices, the actual impact (if any) Asian Acupressure Massage's presence has on Plaintiffs' property, particularly with regard to patronage and property value, etc. Examining the record in light most favorable to Defendants, the Plaintiffs' Complaint raises a number of disputed facts that require further discovery, which precludes entry of peremptory judgment in their favor pursuant to Pa.R.C.P 1098. B. Plaintiffs' Challenge to Zoning Lies Exclusively within Purview of Zoning Hearing Board. The Municipalities Planning Code "MPC" provides exclusive jurisdiction to the zoning hearing board for review of various decisions, including in part substantive challenges to land use ordinances, and applications for variances or special exceptions. 53 P.S. § 10909. The MPC provides the exclusive procedure by which to challenge a land use decision, including exclusive appeal provisions. 53 P. S. § 11001-A ("The procedures set forth in this article shall constitute the exclusive mode for securing review of any decision rendered pursuant to Article 5 IX or deemed to have been made under this act."); 53 P.S. § 10909.1 It is beyond reasonable argument that "exclusive jurisdiction" means to the exclusion of all others. Harris-Walsh Inc. v. Borough of Dickson City, 420 Pa. 259, 270-71, 216 A.2d 329, 335 (1966). Plaintiffs' Complaint essentially asks this Court to review the Borough's decision regarding the use of the property without any allegation that the Plaintiffs have properly pursued and exhausted procedures pursuant to the MPC. Therefore, this Court lacks subject matter jurisdiction over the Defendant Borough of Wormleysburg's decisions regarding the Co-Defendant's use of the property. C. Defendant Borough of Wormleysburg is Immune from Plaintiffs' Nuisance Claims. Pursuant to the Pennsylvania Governmental Immunity Act, municipal Defendants and their employees are provided immunity from state law tort claims. 42 Pa. C.S. §8541 et sec. Pursuant to 42 Pa. C.S. §8541, no local agency shall be liable for any damage on account of any injury to a person or property caused by any act of the local agency or any employee thereof or any other person, except as otherwise provided in that subchapter. In other words, tort claims generally are barred by the Governmental Immunity Act. See Henley v. Octorara Area School Dist., 701 F. Supp. 545 (E.D. Pa. 1988). As a general rule, municipalities and their employees are absolutely immune from liability pursuant to the provisions of Pennsylvania Governmental Immunity Act, 42 Pa. C.S. §8541 et seq. Pursuant to 42 Pa. C.S. §8541, no local agency shall be liable for any damage on account of any injury to a person or property caused by any act of the local agency or any employee thereof or any other person, except as otherwise provided in that subchapter.' The Act grants broad immunity to municipal defendants based on intentional conduct, only waiving it with respect to eight narrow categories of negligent acts. 42 Pa. C.S. § 8542(b). In order to impose liability against a municipality, the Plaintiff must meet a two-prong test. I An individual's immunity is lost only if, "... it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud,actual malice,or willful misconduct." 42 Pa.C.S. § 8550. 6 As a threshold requirement, the Plaintiff must demonstrate that the Defendant owed him/her a common law or statutory duty that the Defendant breached that duty and that the injuries claimed were caused by the negligent acts of the municipality or an employee thereof acting within the scope of his/her office or duties. 42 Pa. C.S. §8542(a)(1). Additionally, the allegedly negligent act must fall within one of the exceptions to immunity enumerated at 42 Pa. C.S. §8542(b). Briefly, these exceptions include: vehicle liability; care, custody or control of personal property; real property; trees, traffic controls and street lighting; utility service facilities; streets; sidewalks; and care, custody or control of animals. 42 Pa. C.S. §8542(b). In construing and applying these exceptions, the legislature expressly intended to insulate political subdivisions from liability. City of Phila. v. Melendez, 156 Pa. Cmwlth. 271, 627 A.2d 234, 235 (1993), citing, Snyder v. Harmon, 522 Pa. 524, 562 A.2d 307 (1989). Thus, all the exceptions must be narrowly construed in favor of immunity. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118, 1123 (1987); Tyree v. City of Pittsburgh, 669 A.2d 487, 490 (Pa. Cmwlth. 1995). Here, Plaintiff's Complaint as alleged fails to state a cause of action sufficient to sustain a waiver of governmental immunity pursuant to 42 Pa. C.S. §8541 et seq. The Plaintiffs allege that the Borough of Wormleysburg "granted the right of the occupants of 704 North Front Street to erect an unsightly neon sign advertising its business." See Plaintiffs' Complaint, % 12. The Plaintiffs further allege that the Borough of Wormleysburg permitted Asian Acupressure Massage's use of the property "by oral agreement to either the Defendant Wilson or the owners of Asian Acupressure Massage or both." See Plaintiffs' Complaint, ¶ 11. The Borough of Wormleysburg's decision to grant Asian Acupunture Permission to erect a sign and to continue its business activities within the zone in which it is located are discretionary functions of the Borough. There is no common law right or statute which would permit a cause of action against the Borough. Plaintiffs' allegations do not fit within any of the 7 exceptions to immunity. 42 Pa. §8542(b). Therefore, the Borough of Wormleysburg is immune from the Plaintiffs' claims pursuant to the Governmental Immunity Act. D. Plaintiffs Fail to Establish Elements of Mandamus Mandamus is an extraordinary remedy designed to compel official performance of a mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant and a lack of any other adequate and appropriate remedy at law. Crozer Chester Medical Center v. Department of Labor and Industry Bureau of Workers' Compensation, 955 A.2d 1037 (Pa. Commw. 2008). A defendant in Mandamus may plead any defenses by preliminary objections upon any of the grounds prescribed by the Rules of Civil Procedure in civil actions, generally. Erie Firefighters Local No. 293 of Intern. Ass'n of Firefighters v. Gardner, 178 A.2d 691 (Pa.1962). "Mandamus may be used only to compel performance of a purely ministerial or mandatory duty, and cannot be used to control exercise of discretion by public official or administrative or judicial tribunal, or to review or compel undoing of action taken by such official or tribunal in good faith and in exercise of legitimate jurisdiction, or to influence or coerce particular determination of issue involved, or to perform function of appeal or writ of error, though no appeal or writ of error is permitted by law." Kaufman Const. Co. v. Holcomb, 55 A.2d 534 (Pa.1947). Here, Plaintiffs attempt to allege a claim against the Borough for the purported failure to enforce its ordinances, which is not cognizable. Moreover, Plaintiffs apparently seek to enjoin or compel the Borough of Wormleysburg to refrain from certain actions which they presumably claim are somehow ministerial or mandatory. However, the consideration of whether to issue a permit requires deliberation and discretion, including review of whether a permit complies with various ordinances. Plaintiffs also have an adequate remedy at law which must be pursued with the Zoning Hearing Board. Therefore, Plaintiffs' alleged mandamus claim fails. E. Plaintiffs Fail to Establish Elements Required for Injunctive Relief. 8 In order to prevail on a claim for a permanent injunction, the party must establish, "that his right to relief is clear; that there is urgent necessity to. avoid injury which cannot be compensated for by damages; and the greater injury will result from refusing rather than granting the relief requested." P.J.S. v. Pennsylvania State Ethics Commission, 669 A.2d 1105, 1112 (Cmwlth. Ct. 1996). The Complaint as pled fails to allege any claim of irreparable harm. Furthermore, Plaintiffs can be compensated by damages and have an adequate remedy at law which they now pursue against the adjacent property owners. Based on the foregoing, Plaintiffs are not entitled to injunctive relief. IV. CONCLUSION For the foregoing reasons, Defendant Borough of Wormleysburg respectfully requests that this Honorable Court discharge its Rule to Show Cause and deny the Plaintiffs' request for peremptory relief pursuant to Pa.R.C.P. 1098. Respectfully submitted, MAYERS, MENNIES & SHERR, LLP B HONY R.CS , ESQUIRE Attorney for Defendant Borough of Wormleysburg 9 MAYERS, MENNIES & SHERR , LLP BY: ANTHONY R. SHERR, ESQUIRE IDENTIFICATION NO. 44603 ATTORNEY FOR DEFENDANT 3031 WALTON ROAD, BUILDING A The Borough of Wormleysburg, by SUITE 330, P.O. BOX 1547 its counsel members, Stephen M. BLUE BELL, PA 19422-0440 Hawbecker, et al. (610) 825-0300 JEFFREY D. TINSMAN and ELIZABETH P. TINSMAN, his wife Plaintiffs V. COURT OF COMMON PLEAS LI NIE SCHELL, trading as and doing CUMBERLAND COUNTY business as ASIAN ACUPRESSURE MASSAGE and ASIAN ACUPRESSURE MASSAGE and STEPHEN R. WILSON NO. 13-3153, 2013 and THE BOROUGH OF WORMLEYSBURG, by its council members, THOMAS L. CIVIL ACTION - LAW MARITINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman Defendants CERTIFICATE OF SERVICE I, Linda Logan, hereby certify that on the 14th day of June 2013, a true and correct copy of Defendant The Borough of Wormlesyburg's Answer to Rule to Show Cause with Memorandum of Law was served via first class, regular mail, postage prepaid upon the following: Lee C. Swartz, Esquire Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Li Nie Schell Asian Acupressure Massage 704 North Front Street Wormleysburg, PA 17043 Stephen R. Wilson 109 Ridgewood Drive Wormleysburg, PA 17043 oq6 inda Logan, Paralegal to Anthony herr C-) Robert P. Kline, Esquire -� Attorney I.D. No. 58798 n=i Kline Law Office o ' 714 Bridge Street vim . Post Office Box 461 XCD ra New Cumberland, PA 17070-0461 (717) 770-2540 telephone (717) 770-2553 facsimile JEFFREY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 13-3153 V. LI NIE SCHELL, trading and doing business CIVIL ACTION—LAW & EQUITY as ASIAN ACUPRESSURE MASSAGE and ASIAN ACUPRESSURE MASSAGE and STEPHEN R. WILSON and THE BOROUGH OF WORMLEYSBURG, by its Council Members, THOMAS L. MARTINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman, Defendants ANSWER TO RULE TO SHOW CAUSE AND ANSWER TO COMPLAINT OF LI NIE SCHELL AND NOW, comes Li Nie Schell, Defendant in the above-captioned matter, by and through her attorney, Robert P. Kline, Esquire, and answers the Complaint and Rule to Show Cause as follows: COUNT I—ACTION FOR EQUITABLE RELIEF 1. Admitted upon information and belief. 2. Denied. On the contrary, Answering Defendant is an employee of Asian Acupressure Massage Therapy, LLC, a Pennsylvania limited liability company which has not been named as a party to this action. 3. Admitted upon information and belief. 4. Admitted upon information and belief. 5. Denied as stated. It is admitted that Li Nie Schell is an adult individual who resides at 267 Dressler Ridge Road, Millerstown, PA 17062, who is employed by Asian Acupressure Massage Therapy, LLC, a Pennsylvania limited liability company located at 704 North Front Street, Wormleysburg, Cumberland County, Pennsylvania, which has not been named a party to this action. FIRST CAUSE OF ACTION VIOLATION OF ZONING ORDINANCE 6- 18. The Plaintiffs' First Cause of Action raising allegations of a violation of the Wormleysburg Borough Zoning Ordinance is improper inasmuch as the Plaintiffs have not followed the procedures for challenging zoning actions as set forth in the Municipality Planning Code. Nevertheless, Answering Defendant will respond specifically to the allegations of these paragraphs as follows: 6. Denied. Plaintiffs'property, under the current zoning ordinance, is, in fact, located in the Village Mixed-Use II Zone. Plaintiffs' property was located in the R-1 Residential Zone under the prior zoning ordinance of the Borough of Wormleysburg. 7. Admitted upon information and belief that Stephen R. Wilson is the,owner of the property located at 704 North Front Street, Wormleysburg, Pennsylvania, according to Cumberland County assessment records. The remaining allegation of this paragraph is denied inasmuch as there are a number of other professional offices located within the area described in the Plaintiffs' allegation. 8. Denied as stated. It is admitted that on August 15, 2012, Defendant Wilson and his wife, Mary Wilson, did enter into a lease agreement with Dan Dan Shi, the sole member of the Pennsylvania limited liability company known as Asian Acupressure Massage Therapy, LLC. Prior to the entry of the lease agreement, the Borough of Wormleysburg did, in fact, issue Zoning Permit No. ZO2012-2. 9. Denied. On the contrary, Asian Acupressure Massage Therapy, LLC, has legally operated as a Pennsylvania limited liability company since its formation on or about August 6, 2012. Defendant Li Nie Schell is not an owner of the business. Asian Acupressure Massage Therapy, LLC has not been named as a defendant in this action. 10. Denied as stated. Pursuant to the zoning ordinance in effect at the time that the zoning permit was issued, the operation of a professional office by a massage therapist licensed by the Commonwealth of Pennsylvania was a permitted use under the Wormleysburg Zoning Ordinance in the R-1 Zone. Said ordinance includes in its definition of professional office "a practice of a profession to include...any other profession licensed by the Commonwealth of Pennsylvania or any agency of the Commonwealth..." Under the new Wormleysburg Zoning Ordinance, since enacted, therapeutic massage services is, in fact, a specified permitted use in the Village Mixed- Use II Zone in which these properties presently are situated. 11. The allegations of this paragraph apply to Defendant Borough of Wormleysburg and,therefore, Answering Defendant need not answer the allegation. By way of further answer, however, the allegation is specifically denied. 12. The allegations of this paragraph apply to Defendant Borough of Wormleysburg and, therefore, Answering Defendant need not answer the allegation. In the event an answer is required, however, the allegation is specifically denied. 13. Denied. The allegation of this paragraph is specifically denied and proof is demanded. 14. Denied as stated. It is specifically denied that any"illegal operations" are being conducted. As for the allegations regarding parking, Plaintiffs are well aware that off-street parking is provided. Defendants have no control whatsoever as to who may or may not park within the public right-of-way on North Front Street. 15. Answering Defendant is a licensed massage therapist. 16. The allegations of this paragraph apply to Defendant Wilson and to Defendant Borough of Wormleysburg and,therefore, Answering Defending need not answer the allegation. In the event an answer is required, however,the allegation is specifically denied. 17. Denied as stated. While it is believed that law enforcement has received numerous unfounded complaints from the Plaintiffs regarding the operation of their business, to date, no charges whatsoever have been filed as a result of the unfounded harassment by the Plaintiffs. 18. Denied. WHEREFORE, Answering Defendant, Li Nie Schell, respectfully requests that this Honorable Court dismiss the Complaint of Plaintiffs in this matter and award to her reasonable attorneys fees, costs, and any other just relief to which she may be entitled. SECOND CAUSE OF ACTION ACTION IN EQUITY TO ENJOIN NUISANCE 19. The responses to paragraphs 1 through 18 are incorporated herein by reference. It is specifically denied that a public and private nuisance to the Plalintiffs exists. 20. Plaintiffs have no adequate remedy at law only because they have failed to state a cause of action for which relief can be granted. WHEREFORE, Answering Defendant respectfully requests that the relief requested by Plaintiffs be denied and that she be awarded reasonable attorneys fees, costs, and any other just relief to which she may be entitled. COUNT II—ACTION IN MANDAMUS 20-28. The allegations of this Count are addressed to Defendant Borough of Wormleysburg and not to Answering Defendant. However,to the extent possible, answers are provided as follows: 20. The responses to Paragraph 1 through 20 are incorporated herein by reference thereto. 21. Denied. On the contrary,therapeutic massage therapy by a licensed massage therapist is a permitted use under both the former zoning ordinance and the current zoning ordinance. 22. Denied. On the contrary, therapeutic massage therapy by a licensed massage therapist is a permitted use under both the former zoning ordinance and the current zoning ordinance. 23. Denied. Inasmuch as the use is a permitted use, Plaintiffs' action amounts to nothing more than harassment. 24. Answering Defendant is without specific knowledge as to the"great distances"traveled by the clientele of the therapeutic massage practice. However,the distance a client may travel is irrelevant to any claim that the use is not permitted under the Wormleysburg Zoning Ordinance. 25. Answering Defendant is not aware of any admissions of illegal activity and,therefore, the allegation is denied and proof is demanded. 26. The allegation of this paragraph, which includes factual inaccuracies, remains a legal conclusion to which no responsive pleading is required. To the extent a response is required, the allegation is denied and proof is demanded. 27. Admitted. It is admitted that Plaintiffs have no adequate remedy at law because Plaintiffs have no justifiable cause of action in attempting to overturn the properly enacted zoning regulations of the Borough of Wormleysburg by means of this lawsuit. 28. Denied. WHEREFORE, Answering Defendant respectfully requests that the relief requested by Plaintiffs be denied and that she be awarded reasonable attorneys fees, costs, and any other just relief to which she may be entitled. Robert P. Kline, Esquire Attorney ID #58798 Kline Law Office 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070 (717) 770-2540 VERIFICATION I verify that the statements made in the foregoing Answer to Rule to Show Cause and Answer to Complaint of Li Nie Schell are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. o6-zd - ©13 Date LI NIE SCHELL CERTIFICATE OF SERVICE I hereby certify that I served A true and correct copy of the foregoing Answer to Rule to Show Cause and Answer to Complaint of Li Nie Schell upon the following persons by depositing same in the United States Mail, first class, postage pre-paid on the 20'h day of June, 2013, from New Cumberland,Pennsylvania, addressed as follows: Lee C. Swartz,Esquire Tucker Arensberg PC 2 Lemoyne Drive, Suite 200 Lemoyne,PA 17043 Attorney for Plaintiffs Anthony R. Sherr,Esquire 3031 Walton Road Building A, Suite 330 Blue Bell,PA 19422-0440 Attorney for Defendant The Borough of Wormleysburg,et al. John W. Purcell,Jr.,Esquire 1719 N. Front Street Harrisburg,PA 17102-2392 Attorney for Defendant Wilson ROBERT P. KLINE,ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland,PA 17070-0461 (717) 770-2540 Attorney for Defendant Li Nie Schell - JEFFERY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA 706 North Front Street Wormleysburg, PA 17043 NO. 13-3153, 2013 Plaintiffs : CIVIL ACTION - LAW& EQUITY V. LI NIE SCHELL, trading and doing business as ASIAN ACUPRESSURE MASSAGE 704 North Front Street Wormleysburg, PA 17043 and ASIAN ACUPRESSURE MASSAGE 704 North Front Street Wormleysburg, PA 17043 and STEPHEN R.WILSON 109 Ridgewood Drive Camp Hill, PA 17011 and THE BOROUGH OF WORMLEYSBURG, by its Council Members, THOMAS L. MARTINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE STUART,WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman, 20 Market Street : Wormleysburg, PA 17043 Defendants ORDER AND NOW this" day of June 2013, upon consideration of the representations set forth in the foregoing motion, it is hereby Ordered that the Hearing on June 25, 2013 in the 3 above captioned action be continued pending the submission of a Stipulated Order which will result in the eventual termination of the action. By the Cow#. The Honorable Edward E. Guido Dated: � c ti r -0 M C=�3> te r; =r. 4 ' r JEFFERY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA 706 North Front Street . Wormleysburg, PA 17043 NO. 13-3153, 2013 • Plaintiffs : CIVIL ACTION - LAW & EQUITY v. . LI NIE SCHELL, trading and doing business : as ASIAN ACUPRESSURE MASSAGE . 704 North Front Street : Wormleysburg, PA 17043 : • and : • ASIAN ACUPRESSURE MASSAGE : 704 North Front Street : Wormleysburg, PA 17043 : and . • STEPHEN R. WILSON . 109 Ridgewood Drive . Camp Hill, PA 17011 . • and : • THE BOROUGH OF WORMLEYSBURG, by : its Council Members, THOMAS L. MARTINI, : President, STEPHEN M. HAWBECKER, . Vice President, JOSEPH DEKLINSKI, SUE : STUART, WARREN STUMPF, MARGARET : STUSKI, DENNIS REDDING, SR., LUKAS : DEKLINSKI, Junior Councilman, and . ZACHARY KAHLER, Junior Councilman, . 20 Market Street : Wormleysburg, PA 17043 . Defendants : ORDER i d AND NOW this day of der, 2013, Defendant Asian Acupressure Massage, and Li Nie Schell doing business at 704 N. Front Street, Wormleysburg, PA is Asian Acupressure Massage Therapy, LLC, it is hereby ordered that the above LLC and its agents and assigns will cease its licensed 3 massage therapy business at 704 N. Front Street, Wormleysburg, PA and remove all equipment, furnishings and other elements of its licensed massage therapy business as of December 31, 2013. The LLC shall not use any neon signs in the windows of the premises and shall produce an Affidavit to counsel for the Plaintiffs from the person executing this agreement that she has the authority to do so and the specific nature of the authority. By The C Edward E. Guido J. H BG D 8:138333-1 025598-158356 m C!J CI rir, 11'E M t7 ; X (de) E . C✓, r- 4 JEFFERY D. TINSMAN and • IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA 706 North Front Street Wormleysburg, PA 17043 NO. 13-3153, 2013 • Plaintiffs CIVIL ACTION - LAW & EQUITY • v. • LI ME SCHELL, trading and doing business : as ASIAN ACUPRESSURE MASSAGE • 704 North Front Street Wormleysburg, PA 17043 • • and • • ASIAN ACUPRESSURE MASSAGE • 704 North Front Street • Wormleysburg, PA 17043 • and • • STEPHEN R. WILSON ' = �; • 109 Ridgewood Drive Camp Hill, PA 17011 : '�'m c, -cam -r and • �.. �.� • THE BOROUGH OF WORMLEYSBURG, by : its Council Members, THOMAS L. MARTINI, : := President, STEPHEN M. HAWBECKER, r Vice President, JOSEPH DEKLINSKI, SUE : STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman, • 20 Market Street • Wormleysburg, PA 17043 Defendants : STIPULATED ORDER The parties Jeffrey D. Tinsman and Elizabeth P. Tinsman, his wife, along with Defendant Asian Acupressure Massage and Li Nie Schell have reached an agreement in the above captioned action hereby and agree to the following terms and that an Order be entered in accordance thereto: 1 n } 1. With respect to the Defendant Asian Acupressure Massage and Li Nie Schell, the parties agree that the correct party doing business at 704 N. Front Street, Wormleysburg, Pennsylvania, is Asian Acupressure Massage Therapy, LLC, and that the LLC, by its authorized representative, agrees to a Stipulated Order that the above LLC and its agents and assigns will cease its licensed massage therapy business at 704 N. Front Street, Wormleysburg, Pennsylvania and remove all equipment, furnishings, and other elements of its licensed massage therapy business, as of December 31, 2013. The LLC further agrees that it will not use any neon signs in the windows of the premises. The LLC shall produce an affidavit to counsel for Plaintiff from the person executing this Agreement that she has the authority to do so and the specific nature of t authority. PV-,_o S 4111.- �i�� _ - Witness Asian Accupressure Massage h• py, LLC Witness Jeffrey D. Tinsman Witness Elisabeth P. Tinsman 2 . - 1. With respect to the Defendant Asian Acupressure Massage and Li Nie Schell, the parties agree that the correct party doing business at 704 N. Front Street, Wormleysburg, Pennsylvania, is Asian Acupressure Massage Therapy, LLC, and that the LLC, by its authorized representative, agrees to a Stipulated Order that the above LLC and its agents and assigns will cease its licensed massage therapy business at 704 N. Front Street, Wormleysburg, Pennsylvania and remove all equipment, furnishings, and other elements of its licensed massage therapy business, as of December 31, 2013. The LLC further agrees that it will not use any neon signs in the windows of the premises. The LLC shall produce an affidavit to counsel for Plaintiff from the person executing this Agreement that she has the authority to do so and the specific nature of the authority. . Witness Asian Accupressure Massage Therapy, LLC /► , d}_ ►_ to`' v4 - xi ..i� w, Wit ess • Jeffr- D'Tinsm- r w f_liX ,-, ,/ /2,-)---a--- Wi ess • Elisabeth ". insman 2 ■ 4 c ' JEFFERY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA 706 North Front Street Wormleysburg, PA 17043 NO. 13-3153, 2013 Plaintiffs CIVIL ACTION - LAW & EQUITY V. LI NIE SCHELL, trading and doing business as ASIAN ACUPRESSURE MASSAGE 704 North Front Street Wormleysburg, PA 17043 and ASIAN ACUPRESSURE MASSAGE 704 North Front.Street Wormleysburg, PA 17043 and STEPHEN R. WILSON 109 Ridgewood Drive Camp Hill, PA 17011 rqr , �.. x c5 rn_-. and THE BOROUGH OF WORMLEYSBURG, by -� -` its Council Members, THOMAS L. MARTINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE --F 4" STUART, WARREN STUMPF, MARGARET ' STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman, 20 Market Street Wormleysburg, PA 17043 Defendants STIPULATION OF DISCONTINUANCE WITH PREJUDICE AS TO DEFENDANT STEPHEN R. WILSON AND NOW COME the Plaintiffs to this action, by and through their counsel, and file the following Stipulation of Discontinuance as to Defendant Stephen R.Wilson. 1 a 1. The Plaintiffs, Jeffrey Tinsman and Elizabeth Tinsman, by and through their counsel, Lee C. Swartz, Esquire and Tucker Arensberg, P.C. hereby agree to dismiss Defendant Stephen R. Wilson from this action with prejudice. Dated: Respectfully submitted, Tucker Arensberg, P.C. 4"::f�0, S—LJM& e C. Swartz, Esq. Attorneys for Plaintiffs 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17552 (717) 221-7969 Iswartz(a)-tuckerlaw.com Distribution: Robert P. Kline, Esquire Anthony R. Sherr, Esq. Kline Law Office Myers, Mennies & Sherr, LLP 714 Bridge Street 3031 Walton Road, Suite 330 Bldg. A New Cumberland, PA 17070 Blue Bell, PA 19422 John W. Purcell, Jr., Esquire Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 H BGDB:139219-1 025598-158356 2 MAYERS, MENNIES & SHERR , LLP BY: ANTHONY R. SHERR, ESQUIRE IDENTIFICATION NO. 44603 ATTORNEY FOR DEFENDANT 3031 WALTON ROAD, BUILDING A The Borough of Wormleysburg, by SUITE 330, P.O. BOX 1547 its council members, Thomas L. BLUE BELL, PA 19422-0440 Martini, et al. (610) 825-0300 JEFFREY D. TINSMAN and ELIZABETH P. TINSMAN, his wife Plaintiffs V. COURT OF COMMON PLEAS LI NIE SCHELL, trading as and doing CUMBERLAND COUNTY business as ASIAN ACUPRESSURE MASSAGE and C ASIAN ACUPRESSURE MASSAGE : z;; and STEPHEN R. WILSON : NO. 13-3153, 2013 1 and r c THE BOROUGH OF WORMLEYSBURG, by its council members, THOMAS L. CIVIL ACTION - LAWM'' MARTINI, President, STEPHEN M. �• HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE.STUART, WARREN STUMPF, MARGARET STUSKi, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman Defendants STIPULATION AND NOW, this „3/ day of OG/46v , 2013, IT IS HEREBY STIPULATED AND AGREED by and between the parties and/or their respective counsel that Defendant, the Borough of Wormleysburg and its council members Thomas L. Martini, Stephen M. Hawbecker, Joseph Deklinski, Sue Stuart, Warren Stumpf, Margaret Stuski, Dennis Redding, Sr. Lukas Deklinski and Zachary Kahler are voluntarily dismissed from this matter, with prejudice. It is further stipulated by and between the parties and/or their respective counsel that Defendant, the Borough of Wormleysburg's, and its council members Thomas L. Martini, Stephen M. Hawbecker, Joseph Deklinski, Sue Stuart, Warren Stumpf, Margaret Stuski, Dennis Redding, Sr. Lukas Deklinski and Zachary Kahler, names shall be removed from the caption and docket of this case. A proposed Order is attached hereto and made a part hereof. 0 At- Lee C. Swartz, Esquire CJ Attorney for Plaintiff Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoy 17043 Robert P. Kline, Esquire Attorney for Defendant Li nie Schell 714 Bridge Street P.O. Box 461 N Cumber n A 17070 Anthony R. $herr, Esquire Attorney for Defendant Borough of Wormleysburg 3031 Walton Road Building A, Suite 330 PO Box 1547 Blue Bell, PA 19422 224a��2 --- Asian Ac sure Massage �,,,-0y,�o 704 Nort Fr t Street e PA 17043 Stephen R. Wilson 109 Ridgewood Drive Camp Hill, PA 17011 2 e + • JEFFERY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, • CUMBERLAND COUNTY, PENNSYLVANIA • 706 North Front Street Wormleysburg, PA 17043 NO. 13-3153, 2013 • Plaintiffs : CIVIL ACTION - LAW & EQUITY • v. • • LI NIE SCHELL, trading and doing business • as ASIAN ACUPRESSURE MASSAGE • 704 North Front Street • Wormleysburg, PA 17043 • • and • ASIAN ACUPRESSURE MASSAGE • 704 North Front Street • Wormleysburg, PA 17043 • • and • STEPHEN R. WILSON • CD no 109 Ridgewood Drive • Camp Hill, PA 17011 • z r _i •• - ri,-, and • "— -r; THE BOROUGH OF WORMLEYSBURG, by : �c) its Council Members, THOMAS L. MARTINI, : =c) — r,rr1 President, STEPHEN M. HAWBECKER, ca Vice President, JOSEPH DEKLINSKI, SUE • .�; = f STUART, WARREN STUMPF, MARGARET : STUSKI, DENNIS REDDING, SR., LUKAS • DEKLINSKI, Junior Councilman, and • ZACHARY KAHLER, Junior Councilman, • 20 Market Street • Wormleysburg, PA 17043 Defendants ORDER AND NOW, this 3/ s day of October, 2013, upon consideration of the attached Stipulation of Discontinuance, the action against Stephen R. A • on is hereby dismissed with prejudice. CO 1'Q.S / l£chi- .a. (II • Edward E. Guido J. ////./i 3 /344y J• uax.c 4.. sue ,. A€42A_. JEFFERY D. TINSMAN and • IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA 706 North Front Street Wormleysburg, PA 17043 • NO. 13-3153, 2013 • Plaintiffs : CIVIL ACTION - LAW& EQUITY v. • LI NIE SCHELL, trading and doing business : as ASIAN ACUPRESSURE MASSAGE 704 North Front Street • Wormleysburg, PA 17043 • and • • ASIAN ACUPRESSURE MASSAGE • 704 North Front Street • Wormleysburg, PA 17043 • and • STEPHEN R. WILSON • 109 Ridgewood Drive • Camp Hill, PA 17011 • - Z and • • THE BOROUGH OF WORMLEYSBURG, by : f' ac`s its Council Members, THOMAS L. MARTINI, : a. President, STEPHEN M. HAWBECKER, : A k- , Vice President, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET : STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman, • 20 Market Street • Wormleysburg, PA 17043 • Defendants : STIPULATION OF DISCONTINUANCE WITH PREJUDICE AS TO DEFENDANT STEPHEN R. WILSON AND NOW COME the Plaintiffs to this action, by and through their counsel, and file the following Stipulation of Discontinuance as to Defendant Stephen R. Wilson. 1 • 1. The Plaintiffs, Jeffrey Tinsman and Elizabeth Tinsman, by and through their counsel, Lee C. Swartz, Esquire and Tucker Arensberg, P.C. hereby agree to dismiss Defendant Stephen R. Wilson from this action with prejudice. Dated: Respectfully submitted, Tucker Arensberg, P.C. Le C. Swartz, Esq. Attorneys for Plaintiffs 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17552 (717) 221-7969 Iswartz(a�tuckerlaw.corn Distribution: Robert P. Kline, Esquire Anthony R. Sherr, Esq. Kline Law Office Myers, Mennies & Sherr, LLP 714 Bridge Street 3031 Walton Road, Suite 330 Bldg. A New Cumberland, PA 17070 Blue Bell, PA 19422 John W. Purcell, Jr., Esquire Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 HBG DB:139219-1 025598-158356 2 TUCKER ARENSBERG Lee C.Swartz Attorneys Iswartz @tuckerlaw.com October 10, 2013 Judge Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Jeffrey D. Tinsman and Elizabeth P. Tinsman v. Li Nie Schell, trading and doing business as Asian Acupressure Massage, Asian Accupressure Massage, Stephen R. Wilson, The Borough of Wormleyburg, by its council members, Thomas L. Martini, President, Stephen M. Hawbecker, Vice President, Joseph Deklinski, Sue Stuart, Warren Stumpf, Margaret Stuski, Dennis Redding, Sr., Lukas Deklinski, Junior Councilman, and Zachary Kahler, Junior Councilman, Docket No.: 13-3153 Our Client/Matter#025598-158356 Dear Judge Guido: Enclosed please find an executed Stipulation of Discontinuance with Prejudice as to Defendant Stephen R. Wilson, as well as an Order, for you to execute regarding the discontinuance. I believe this effectively concludes the case. All counsel has been served with the Stipulation of Discontinuance and copy of the unexecuted Order. Thank you for your cooperation. Sincerely yours, TUCKER ARENSBERG, P.C. Le C. Swartz. LCS/sed Enclosures cc: Purcell Krug & Haller Mayers Mennies Sherr, LLP Kline Law Office Tucker Arensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 p.717.234.4121 f.717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p.412.566.1212 f.412.594.5619 JEFFREY D. TINSMAN and • • ELIZABETH P. TINSMAN, his wife Plaintiffs v. COURT OF COMMON PLEAS LI NIE SCI-IELL, trading as and doing CUMBERLAND COUNTY • business as ASIAN ACUPRESSURE MASSAGE • and • ASIAN ACUPRESSURE MASSAGE and STEPHEN R. WILSON NO. 13-3153, 2013 and • THE BOROUGH OF WORMLEYSBURG, : by its council members,THOMAS L. CIVIL ACTION- LAW • MARTINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH . DEKLINSKI, SUE STUART, WARREN . STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS • c DEKLINSKI, Junior Councilman, and -0 i..a ZACHARY KAHLER,Junior Councilman : mrn- ' Defendants cn r: crt ; �:+ ORDER ANT)NOW, this- 3/ day of Uat6 21Z, , 2013, upon consideration of Plaintiffs' Motion for Discontinuance as to Defendant Defendant Borough of Wormleysburg and its council members Thomas L.Martini, Stephen M. Hawbecker,Joseph Deklinski, Sue Stuart, Warren Stumpf,Margaret Stuski, Dennis Redding, Sr. Lukas Deklinski and Zachary Kahler, , it is hereby ORDERED and DECREED by and between the parties and/or their respective counsel that Defendant, the Borough of Wormleysburg and its council members Thomas L. Martini, Stephen M. Hawbecker, Joseph Deklinski, Sue Stuart,Warren Stumpf, Margaret Stuski,Dennis Redding, Sr. Lukas Deklinski and Zachary Kah ler are voluntarily dismissed from this matter, with prejudice. It is further stipulated by and between the parties and/or their respective counsel that Defendant, the Borough of Wormleysburg's, and its council members Thomas L. Martini, Stephen M. Hawbecker, Joseph Deklinski, Sue Stuart,Warren Stumpf, Margaret Stuski,Dennis Redding, Sr. Lukas Deklinski and Zachary Kahler, names shall be removed from the caption and docket of this case. BY THE COURT---, z/cdl •(,E. ce4 do , J. CO i'€c .fit C J12. igty A� . SIN :L._, // G0//3 4 MAYERS, MENNIES & SHERR , LLP BY: ANTHONY R. SHERR, ESQUIRE IDENTIFICATION NO. 44603 ATTORNEY FOR DEFENDANT 3031 WALTON ROAD, BUILDING A The Borough of Wormleysburg, by SUITE 330, P.O. BOX 1547 its council members, Thomas L. BLUE BELL, PA 19422-0440 Martini, et al. (610) 825-0300 JEFFREY D. TINSMAN and • ELIZABETH P. TINSMAN, his wife • Plaintiffs • v. • COURT OF COMMON PLEAS LI NIE SCHELL, trading as and doing • CUMBERLAND COUNTY business as ASIAN ACUPRESSURE • MASSAGE • and • C o --r-r7) ASIAN ACUPRESSURE MASSAGE : rn2 w --r and • z r?;7, STEPHEN R. WILSON NO. 13-3153, 2013 65 c )A and • r- . C-17 c� I THE BOROUGH OF WORMLEYSBURG, : -16 by its council members, THOMAS L. : CIVIL ACTION - LAW MARTINI, President, STEPHEN M. : Ate„ cam HAWBECKER, Vice President, JOSEPH : DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, : DENNIS REDDING, SR., LUKAS • DEKLINSKI, Junior Councilman, and • ZACHARY KAHLER, Junior Councilman : Defendants c STIPULATION /� AND NOW, this 3/ "' day of UC/OI " , 2013, IT IS HEREBY STIPULATED AND AGREED by and between the parties and/or their respective counsel that Defendant, the Borough of Wormleysburg and its council members Thomas L. Martini, Stephen M. Hawbecker, Joseph Deklinski, Sue Stuart, Warren Stumpf, Margaret Stuski, Dennis Redding, Sr. Lukas Deklinski and Zachary Kehler are voluntarily dismissed from this matter, with prejudice. It is further stipulated by and between the parties and/or their respective counsel that Defendant, the Borough of Wormleysburg's, and its council members Thomas L. Martini, Stephen M. Hawbecker, Joseph Deklinski, Sue Stuart, Warren • • • Stumpf, Margaret Stuski, Dennis Redding, Sr. Lukas Deklinski and Zachary Kahler, names shall be removed from the caption and docket of this case. A proposed Order is attached hereto and made a part hereof. Lee C. Swartz, Esquire Attorney for Plaintiff Tucker Arensberg, P.C. 2 Lemoyne Drive, Suite 200 Lemoy , 17043 1 ?� Robert P. Kline, Esquire Attorney for Defendant Li nie Schell 714 Bridge Street P.O. Box 461 N- Cu �.n�;A 17070 L_ `�' Anthony R. .herr, Esquire Attorney for Defendant Borough of Wormleysburg 3031 Walton Road Building A, Suite 330 PO Box 1547 Blue Bell, PA 19422 Asian Ac - essure Massage Ili Y . 704 Nort . t Street ► . e . . . PA17043 Stephen R. Wilson 109 Ridgewood Drive Camp Hill, PA 17011 2 till ' MAyERS, MENNIES &SHERR, LLP A1TORNEVS AI ( LA' ANTHONY R.SHERR tsherr @mmsllp.com Direct Dial 484-344-5739 October 18, 2013 The Honorable Edward E. Guido Cumberland County Courthouse 1 Courthouse Square Suite 100 Carlisle, PA 17013 RE: Tinsman v. The Borough of Wormleysburg, et al. Cumblerland County CCP; No. 13-3153 Dear Judge Guido: Enclosed please an executed Stipulation of Discontinuance as to Defendants Borough of Wormleysburg and its council members, as well as an Order which we ask that you sign with regard to the discontinuance and return an executed copy to me in the enclosed self-addressed stamped envelope. Thank you for your courtesies in this regard. Respectfully yours, ANTHONY R. SHERR ARS/cz Enclosure cc: Lee C. Swartz, Esquire Robert P. Kline, Esquire John W. Purcell, Esquire 3031 WALTON ROAD I BUILDING A, SUITE 330 P.O. Box 1547 I BLUE BELL, PA 19422-0440 610.825.0300 I FAx 610.825.6555 WWW.MMSLLP.COM JEFFERY D. TINSMAN and IN THE COURT OF COMMON PLEAS ELIZABETH P. TINSMAN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA 706 North Front Street Wormleysburg, PA 17043 NO. 13-3153, 2013 Plaintiffs CIVIL ACTION - LAW & EQUITY V. Li NIE SCHELL, trading and doing business as ASIAN ACUPRESSURE MASSAGE 704 North Front Street Wormleysburg, PA 17043 and ASIAN ACUPRESSURE MASSAGE =rte'- e 704 North Front Street Wormleysburg, PA 17043 C5 r and STEPHEN R. WILSON 109 Ridgewood Drive Camp Hill, PA 17011 and THE BOROUGH OF WORMLEYSBURG, by its Council Members, THOMAS L. MARTINI, President, STEPHEN M. HAWBECKER, Vice President, JOSEPH DEKLINSKI, SUE STUART, WARREN STUMPF, MARGARET STUSKI, DENNIS REDDING, SR., LUKAS DEKLINSKI, Junior Councilman, and ZACHARY KAHLER, Junior Councilman, 20 Market Street Wormleysburg, PA 17043 Defendants PRAECIPE TO SETTLE, DISCONTINUE & END AS TO DEFENDANTS LI NIE SCHELL AND ASIAN ACUPRESSURE MASSAGE TO: Prothonotary, Cumberland County Please discontinue the action against the above captioned Defendants Li Nie Schell and Asian Acupressure Massage and mark the Plaintiff satisfied in full. Dated: 4 VA "kC ^-> Respectfully submitted, Tucker Arensberg, P.C. -fr' 0 4—wV'w'— Le C. Swartz, Esq. Attorneys for Plaintiffs 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17552 (717) 221-7969 Iswartz _tuckerlaw.com H BG DB:141578-1 025598-158356 2