Loading...
HomeMy WebLinkAbout13-6237 Supreme Co'� t of Pennsylvania Cour f'.0;"hMo leas For Prothonotary Use Only: Cl a ve Sheet and` Docket No: urry �J f C erl` Count .� 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 El Complaint El Writ of Summons Petition E J Transfer from Another Jurisdiction ❑ Declaration of Taking C Lead Plaintiff's Name: Lead Defendant's Name: T Henry W. Nolt Hopewell Township Board of Supervisors I Are money damages requested? 0 Yes >J No Dollar Amount Requested: ®within arbitration limits (check one) Doutside arbitration limits N Is this a Class Action Suit? [3 Yes 0 No Is this an MDJAppeal? 13 Yes x No A Name of Plaintiff /Appellant's Attorney: Kurt E. Williams & Scott T. Wyland Check here if you have no attorney (are a Self- Represented [Pro Sel 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 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution El Debt Collection: Credit Card ® Board of Assessment ® Motor Vehicle © Debt Collection: Other E3 Board of Elections ® Nuisance Dept. of Transportation 0 Premises Liability Statutory Appeal: Other S ® Product Liability (does not include E mass tort) 0 Employment Dispute: Q Slander/Libel/ Defamation Discrimination C ® Other: © Employment Dispute: Other Zoning Board T Other: I Other: O MASS TORT C] Asbestos N ® Tobacco Toxic Tort - DES E3 Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste El Ejectment Other: � E3 Common Law /Statutory Arbitration B E3 Eminent Domain/Condemnation ® Declaratory Judgment ® Ground Rent Mandamus Landlord/Tenant Dispute Non - Domestic Relations PROFESSIONAL LIABLITY Mortgage Foreclosure: Residential Restraining Order Mortgage Foreclosure: Commercial Quo Warranto El Dental ® Partition ® Replevin M Legal ® Quiet Title 0 Other: ® Medical ® Other: © Other Professional: Updated 1/1/2011 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HENRY W. NOLT AND MARY P. NOLT, / Z� NO. 2013 - 637 PLAINTIFFS rel M v BOARD OF SUPERVISORS OF CIVIL ACTION- MANDAMUS HOPEWELL TOWNSHIP, . CURTIS MYERS, DANNY FORRESTER and EUGENE F. MELLINGER, DEFENDANTS NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Action in Mandamus has been served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any claim or relief requested by the Appellant. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. c - r, 3z Cumberland County Bar Association f-1 " 32 South Bedford Street w Carlisle, PA 17013 r - -_+C7 Telephone No. (717) 249 -3166 1 _ ...> Americans with Disabilities Act of 1990> The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. O L � f 77(✓� C v2 70,M IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HENRY W. NOLT AND MARY P. NOLT, NO. 2013 - PLAINTIFFS V . BOARD OF SUPERVISORS OF CIVIL ACTION- MANDAMUS HOPEWELL TOWNSHIP, CURTIS MYERS, DANNY FORRESTER and EUGENE F. MELLINGER, DEFENDANTS AND NOW, come the Plaintiffs, Henry W. Nolt and Mary P. Nolt ( "Nolt "), through their attorneys, Salzmann Hughes, P.C., and file this ACTION IN MANDAMUS against the Hopewell Township Board of Supervisors and the three (3) members of its Board of Supervisors, and in support thereof state the following: 1. The Plaintiffs are Henry W. Nolt and Mary P. Nolt, with a mailing address of 455 "B" Middle Creek Road, Lititz, PA 17543. 2. Defendant Board of Supervisors of Hopewell Township is the duly elected members of the board of supervisors (the "Board "). Hopewell Township is a political subdivision of the Commonwealth of Pennsylvania with an address at the Hopewell Township Municipal Building, 415 Three Square Hollow Road, Newburg, PA 17240 -9333 (the "Township "). 1 3. Defendant Curtis Myers is an adult resident of Hopewell Township and, at all times relevant to the instant Complaint, acted in his official capacity as a member of the Board, with an address at the Hopewell Township Municipal Building, 415 Three Square Hollow Road, Newburg, PA 17240-9333. 4. Defendant Danny Forrester is an adult resident of Hopewell Township and, at all times relevant to the instant Complaint, acted in his official capacity as a member of the Board, with an address at the Hopewell Township Municipal Building, 415 Three Square Hollow Road, Newburg, PA 17240 -9333. 5. Defendant Eugene F. Mellinger is an adult resident of Hopewell Township and, at all times relevant to the instant Complaint, acted in his official capacity as a member of the Board, with an address at the Hopewell Township Municipal Building, 415 Three Square Hollow Road, Newburg, PA 17240 -9333. 6. Plaintiffs are the owners of a parcel of real property in Hopewell Township, Cumberland County, Pennsylvania (the "Township ") consisting of approximately 143.6 acres, which property bears Tax Parcel Identification No. 11 -10- 0608 -005 (the "Premises "). 7. The proposed use of the Premises by Nolt is a subdivision consisting of three (3) single - family residential lots with one (1) larger residual lot for agricultural use. 8. This Court has jurisdiction over the action pursuant to 42 Pa.C.S. § 931(a) and 53 P.S. § 10910.1. 9. Cumberland County is the proper venue for this action pursuant to Pa.R.C.P. 2103(b) and Pa.R.C.P. 1092(c). 10. On or about April 12, 2011, Nolt submitted a preliminary subdivision plan to the Township. 2 11. The Hopewell Township Planning Commission ( "Township PC ") met on May 19, 2011, at which meeting, the April 12, 2011 plan was discussed. 12. On November 16, 2011, the Township's Engineer, Brehm -Lebo Engineering, Inc. ( "Brehm- Lebo ") issued a review letter of the April 12, 2011 plan. 13. As a result of the November 16, 2011 review letter by Brehm -Lebo, on or about December 7, 2011, Nolt's surveyor, Eric L. Diffenbaugh, PLS ( "Diffenbaugh "), made significant changes to the April 12, 2011 plan (the "Revised Preliminary Plan "). 14. On or about December 21, 2011, Nolt submitted the Revised Preliminary Plan to the Township. 15. The Revised Preliminary Plan was marked "Received" at the Township by "KM," which are the initials of Township Secretary Kim Myers. See Exhibit A, which is incorporated herein by reference as though fully set forth. 16. The Revised Preliminary Plan, submitted to the Township on December 21, 2011, was accompanied by a cover letter from Diffenbaugh dated December 12, 2011, which referenced the "Preliminary Subdivision Plan for Henry Nolt Dated 4/12/2011 (Revised 121712011)." (italics in original). See Exhibit B, which is incorporated herein by reference as though fully set forth. 17. On January 19, 2012, Brehm -Lebo, in its capacity as the Township's Engineer, issued an engineering review letter of the Revised Preliminary Plan to the Township. See Exhibit C, which is incorporated herein by reference as though fully set forth. 18. On January 19, 2012, the Township PC reviewed the Revised Preliminary Plan and provided comments to the Applicant. 3 19. On June 21, 2012, the Township PC again reviewed the Revised Preliminary Plan and provided comments to the Applicant. 20. On July 2, 2012, the Township Board of Supervisors reviewed the Revised Preliminary Plan and provided comments to the Applicant. 21. The Township has asserted in Appellee's Response to Appellants' Motion to Receive Additional Evidence in a Notice of Land Use Appeal filed at No. 13 -4725 with this Court that, "[t]he Record clearly on its face reveals that the Plan dated December 7, 2011 was not reviewed by the Township and the Plan approved November 5, 2012, was an April 2011 plan which was filed and received by the Township in May 201 L" See Exhibit D, which is incorporated herein by reference as though fully set forth, at paragraph 4. 22. In the same response, the Township also asserts that "[t]he December 7, 2011 plan was not the plan approved at the November 5, 2012 meeting of the Board of Supervisors." See Exhibit D at paragraph 5. 23. Beginning on January 19, 2012 when the PC reviewed the Revised Preliminary Plan, the Township had ninety (90) days to approve or deny the Revised Preliminary Plan. 53 P.S. § 10508. That date would have been April 18, 2012. 24. No extensions of time to approve or deny the Revised Preliminary Plan were granted by the Plaintiffs to the Township. 25. Up to and including the date of filing of this action, the Township asserts it has neither denied nor approved the Revised Preliminary Plan. 26. Failure of the governing body to render a decision and communicate it to the applicant within the statutory time frame and in the manner required by the Municipalities 4 i Planning Code ( "MPC "), results in a deemed approval of the plan as presented. 53 P.S. § 10508(3). 27. Hopewell Township received and reviewed the Revised Preliminary Plan. 28. Given the Township's admission in the Notice of Land Use Appeal filed at No. 13 -4725 with this Court that no action has been taken by the Board on the Revised Preliminary Plan, it was deemed approved as of April 18, 2012. 29. Mandamus is available as a remedy where entitlement to issuance of a land use approval is clear. Stoner v. Township of Lower Merion, 138 Pa.Cmwlth. 257, 587 A.2d 879 (1991), appeal denied 529 Pa. 660, 604 A.2d 252. 30. Mandamus relief lies where there is a clear and specific legal right in the plaintiff, a corresponding duty in the defendant and want of another adequate and appropriate remedy. J.B. Steven, Inc. v. Board of Com'rs of Wilkens Tp., 164 Pa.Cmwlth. 315, 643 A.2d 142 (1994). 31. Where the right to a permit is clear, the act of issuing the permit is merely a "ministerial" act and mandamus is the proper avenue to compel such issuance. Lhormer v. Bowen, 410 Pa. 508, 514, 188 A.2d 747, 749 -750 (1963). 32. Plaintiffs are entitled to mandamus and deemed approval of their Revised Preliminary Plan. 5 i' WHEREFORE, the Plaintiffs, Henry W. Nolt and Mary P. Nolt, respectfully request this Honorable Court issue a Writ of Mandamus requiring the Hopewell Township Board of Supervisors to approve the Revised Preliminary Plan dated December 7, 2011, along with such other relief as the Court deems just and equitable. Respectfully submitted, Date: October 2,3 , 2013 Kurt E. Williams, Esquire Attorney ID No. 75963 Scott T. Wyland Attorney ID No. 52660 Salzmann Hughes, P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717) 249 -6333 Attorneys for Plaintiffs 6 VERIFICATION I verify that all the statements made in the foregoing Action in Mandamus are true and correct to the best of my knowledge, information and belief, and that any false statements made are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. k4��� Henry W. Nolt 7 D P an Eric Diffenbaugh Letter of Transmittal Professional Land Surveyors 25 Broad Street Date: Dec. 21, 2011 Newville Pa 17241 Job no. Tele: (717) 776 -6420 attention: HENRY MOLT REVISED PRELIMINARY PLAN Copies Date Descri tiou 6 Revised Preliminary Subdivision Plans 6 Sketch plans for the parent tract 2 Environmental Assessment reports I Inter-municipal Boundary agreement 1 Stormwater management report I Response letter These are transmitted as checked below: o For approval For use X For review and comments Kim, The planning commission requested the Intermunicipal boundary agreement and the additional copies of the environmental report. I have sent the revised plans to Doug Brehm. a EXHIBIT c� !q J AL L Eric E. Diffenbaugh 14V Professional Land Surveyor 25 Broad Street Newville, PA 17241 (717) 776 -6420 Fax (717) 776 -9277 ediffenbaugh@pa.net December 14, 2011 Hopewell Township Board of Supervisors 415 Three Square Hollow Road Newburg, Pennsylvania 17240 RE: Preliminary Subdivision Plan For Henry Nolt Dated 4/12/2011 (Revised 121712011) Dear Supervisors, In reference to conunents dated November 16, 2011 from Douglas S. Brehm, PLS and Sarah J. Tandle, P.E. of Brehm -Lebo Engineering, Inc., I offer the following responses: 1. (SLDO 203.1) See accompanying sketch plan. 3. (SLDO 302.2.2) The plan shall be submitted to Southampton Township for review. 4. (SLDO 302.2.9) The total acreage of the existing property has been added to sheet 1 of the plan, under plan information. All tracts of the property are shown on sheet 1. 5. (SLDO 302.2.10) Comment Acknowledged. 10. (SLDO 302.5.1) See accompanying sketch plan. 11. (SLDO 302.5.3 & 303.6.2) Comment Acknowledged. 12. (SLDO 302.5.3 & 515) See accompanying revised stormwater management plan & narrative. 13. (SLDO 302.5.3.4) The plan will be submitted for E &S and NPDES approvals. a EXHIBIT 0 W J W Q F J J Q 14. (SLDO 302.5.6) A copy of the wetlands study has been submitted to the township. All delineated wetlands are shown on the coversheet of the plan and also on the accompanying sketch plan. 15. (SLDO 303.6.4) The plan shall be signed prior to recording. 16. (SLDO 303.6.7) Cumberland County Planning Department has reviewed the plan and comments have been addressed accordingly. 17. (SLDO 503.1) The plan shall be reduced prior to recording. 21. (SLDO 503.1) Proposed drainage easements have been added as shown on sheet I and the sketch plan for the entire residual property. Additional Comments 2. (SLDO 302.2.2) The revised plan shows the municipal boundary line as per the intermunicipal boundary agreement between Hopewell Township and Southampton Township. 3. See note on sheet 1 of the revised plan. 4. See the revised stormwater management report. Sincerely, Eric L. DiffeAaugh, P.L.S. BREHM -LEBO ENGINEERING INC. Civil Engineers o Planners ► surveyors )I structural rlljineers 17 STATE AVENUE CARLISLE, PA 1 7 01 3 - 443 1 PHONE: (7 2 43 - 4 1 14 PAX: (7 2 43 - 33 01 EMAIL: bre1jlrts@1)a.11et DOUGLAS S. BREHAI, P.LS. STATLER & LAHR, INC. PRESIDENT fig& -i988) GREGORY S. LEBO, RE S 11TLER -BREHM ASSOCIATES, INC. VICE- PRESIDENT TO: Hopewell Township FROM: Gregory S. Lebo, P.E.&,� Sarah J. Tandle, P.E. DATE: January 19, 2012 SUBJECT: Henry Nolt Prelim inary / Final Subdivision Plan Preliminary /Final Subdivision Plan Revised Plan by Diffenbaugh Surveying PROJECT 09 -HW- -128 The Applicant has provided revised Plans dated December 7, 2011 in response to comments provided by our office on November 16, 2011. We have reviewed the Plans and offer the following comments for your consideration. Those items which were detailed in previous memos and appear to have been addressed have been removed from this memo. Conunents below reflect the remaining items to be addressed by the Applicant. Hopewell Township Subdivision and Land Development Ordinance 1. (203.1) The Applicant has requested a waiver of the preliminary plan requirement. A review of the Cumberland County Tax Map appears to indicate that at least eleven (11) lots have been previously subdivided from the lands of Nolt. This exceeds the allowed five (5) new residential dwellings when prior plan submissions are considered, therefore the project does not meet the criteria for the waiver of a preliminary plan. We recommend that the Township require Preliminary Plan submission. We have reviewed the plan as a Final Plan as per the applicant's request. As per the Planning Commission recommendation a Sketch Plan for the Lands of Nolt has been provided to identify the future development scheme for the property(s), a EXHIBIT c0a)JI6411r0 Office: 40 Norlh secolnb sGect. djnun6rs6 PA 1720I-18r9 LU PIjoinc: (717) 267 -1401 Q J J Q Hopewell Township January 19, 2012 Page 2 2. (302.2.2) The identification of the municipality in which the plan is located in should 'include Southampton Township. Being that a portion of the residual is located in Southampton Township, the Township should consider requiring the plan be reviewed by Southampton Township. A copy of the plan has been provided to Southampton Township for review. 3. (302.2.10) We recommend the Township Zoning Officer review the plan for compliance with the zoning code. 4. (302.5.2, 303.6.2) The Township and S.E.O. should review and act on the D.E.P. Sewage Planning Module. 5. (302.5.3.4) The subdivision proposes single- family residential construction. The earth disturbance activities associated with construction are anticipated to be less than 5.0 acres without a point source discharge to surface waters or less than 1.0 acres with a point source discharge to surface waters. Therefore an adequacy letter from the Cumberland County Conservation District is not required, however a written plan is required to be on the site of the earth disturbance at all tunes. The post construction stormwater management plan proposes point source discharge and greater than an acre of disturbance. Upon receipt, a copy of the NPDES permit shall be provided to the Township as proof that all provisions of the permit have been met. 6. (303.6.4) The statement of ownership, acknowledgement of plan and offer of dedication should be signed prior to recording. 7. (302.6.7) Cumberland County Planning Department should review the plans. 8. (303.1) The plans shall be reduced to 18" x 24" prior to recording. 9. (513) Township should consider requiring a drainage easement along all unnamed streams or watercourses for the entire tract to be subdivided; this should include the residual tract. Comment satisfactorily addressed. BRBHM -LBBO BNGINEERING INTC. Hopewell Township January 19, 2012 Page 3 Additional Co►nnzents Hopewell Townsl►iP Zoning Ordinance 10. (2.02,5.05.A) Lot Area is defined as the area contained zvithin the property lines of a lot as sliozon on a subdivision plan, excluding space within any street right- of -rvay, btit including the area of any easc►nent. The minimum lot area for Lot 6 does not appear to comply. The Zoning officer should determine if a variance is required. Hopewell Township StormwaterManage►nent v 11. (515.2) The runoff rate differentials in Table 2, Page 6 of the post - construction stormwater management report appear incorrect. Please revise as necessary. Z 12. (515.9.10.9) Minimum finished floor elevations for all buildings that would be D affected by a basin shall be two feet (2') above Q 1 100 year water surface. Finished floor elevations should be provided where applicable. Should you have any questions, please do not hesitate to contact our office. SJT /rno cc: Eric L. Diffenbaugh, P.L.S. Sally Winder, Esgtdre BRLHM-L*EBO ENGINBBRING, INC. HENRY W. MOLT AND MARY P. NOLT:IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA Appellant/Landowner �. V. : No. 13- 4725 Civil Term BOARD OF SUPERVISORS OF HOPEWELL TOWNSHIP'' Appellee :Land Use Appeal 3 r APPELLEE'S RESPONSE TO MOTION TO RECEIVE ADDITIONAL EVIDENCE AND NOW, comes the Appellee, Board of Supervisors of Hopewell Township, by and through its solicitor, Sally J. Winder, Esquire and dons filc the foilowing Response to AppeHant's Mdtaon to Receive Additional Evidence: 1. Admitted. Appellee Board.of Supervisors of Hopewell Township (the' Township ") timely filed the Record and served a copy. 2. Denied -On the contrary, the Record filed is complete. No revised preliminary plan dated December 7, 2011 was filed with the Township and is not part of the Record. 3. Denied. On the contrary, the preliminary plan approved November 5, 2012 was substantially different from the final plan denied by the Board as may be clearly discerned from the Record in this matter. 4. Denied. On the contrary, the Record clearly on its.face reveals that the Plan dated December 7, 2011 was not reviewed by the Township and the Plan approved November 5,..2012, was an April 2011 plan which was filed and received by the Township in May 2011. a EXHIBIT c� W a J J Q 5. Denied.. On the contrary, the December 7, 2011 plan was not the plan approved at the November 5, 2012 meeting of the Board of Supervisors. The Final plan is substantially different from the preliminary plan approved November 5, 2012. 6. Denied. On the contrary, the Record filed with the Court is. certified and complete as to the Plan. at issue before the Court. The Court may rule on the Appeal based upon the Record. as filed. The Record contains all the material facts and evidence and is sufficient for pur of deciding this Appeal. 7. Denied. On the contrary the Record is complete. The Court is capable of determining the appeal based upon. the Record filed and there, is no proffered evidence or offer of proof which would dictate the necessity of additional testimony or evidence in order to decide the Appeal before the Court. 8. Denied. On the contrary, the Court has discretion to hold a hearing to receive additional testimony however, it is not mandatory, and' -in this case the Record is sufficient to determine the issue before the Court in this matter; namely, that the December 7, 201,1 plan. was not filed with the Township, was not reviewed by the Township and was not the plan approved by the Township November 5 2012. VHERE , On, Appellee:requests 'this Honorable Court deny the Appellant's request and decide the matter based upon the Record as fled. Respectf lty submitted, d J :1 Sally J. ` der Ct M 24705 PLO, Box 341 Newville, PA 17,244 (717) 776 6656 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HENRY W. NOLT AND MARY P. NOLT, NO. 2013 - PLAINTIFFS V . BOARD OF SUPERVISORS OF CIVIL ACTION- MANDAMUS HOPEWELL TOWNSHIP, . CURTIS MYERS, DANNY FORRESTER and EUGENE F. MELLINGER, DEFENDANTS Service by Sheriff as follows Hopewell Township Board of Supervisors 415 Three Square Hollow Road Newburg, PA 17240 -9333 Curtis Meyers 415 Three Square Hollow Road Newburg, PA 17240 -9333 Supervisor for Hopewell Township Danny Forrester 415 Three Square Hollow Road Newburg, PA 17240 -9333 Supervisor for Hopewell Township Eugene F. Mellinger 415 Three Square Hollow Road Newburg, PA 17240 -9333 Supervisor for Hopewell Township With a copes Sally J. Winder, Esquire P.O. Box 341 221 Doubling Gap Road Newville, PA 17241 Solicitor to Hopewell Township SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith C cj hief Deputy Richard W Stewart Solicitor P E 3)°,L VI`H! Henry W Nolt(et al.) Case Number vs. Board of Supervisors of Hopewell Township(et al.) 2013-6237 SHERIFF'S RETURN OF SERVICE 10/24/2013 10:45 AM - Deputy William Cline, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Kim Myers, Township Secretary,who accepted as"Adult Person in Charge"for Board of Supervisors of pewell Township at 415 Three Square Hollow Road, Hopewell Townsip, Newburg, PA 17240. ILLIAM CLINE, DEPUTY 10/24/2013 10:45 AM - Deputy William Cline, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Kim Myers, Township Secretary, who accepted as"Adult Person in Charge"for Curtis Meyers at 415 T e Square Hollow Road, Hopewell Townsip, Newburg, PA 17240. r�7 - LIAM CLINE, D UTY 10/24/2013 10:45 AM - Deputy William Cline, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Kim Myers, Township Secretary,who accepted as"Adult Person in Charge"for Danny Forrester at 415 Three Square Hollow Road, Hopewell Township, Newburg, PA 17240. A AM CLINE, DEPUTY 10/24/2013 10:45 AM - Deputy William Cline, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Kim Myers, Township Secretary, who accepted as"Adult Person in Charge"for Eugene F Mellinger at 4 Three Square Hollow Road, Hopewell Township, Newburg, PA 17240. WILLIAM CLINE, DEPUTY SHERIFF COST: $98.60 SO ANSWERS, October 25, 2013 RON W R ANDERSON, SHERIFF HENRY W. NOLT AND MARY P. NOLT:IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff • • v. : No. 13-6237 Civil Term BOARD OF SUPERVISORS OF • HOPEWELL TOWNSHIP, • CURTIS MYERS, DANNY FORRESTER: Civil Action -Mandamus and EUGENE F. MELLINGER Defendants • NOTICE TO PLEAD To: Henry W. Nolt and Mary P. Nolt: You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty(20)days from service hereof or a judgment may be entered against you. -ta ws Sally J.$ order, Esquire zm ao rr Attorney for Plaintiff &sr' I Court ID 24705 r 0) P.O. Box 341 Newville,PA 17241 717 776 6656 HENRY W. NOLT AND MARY P. NOLT:IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • v. : No. 13- 6237 Civil Term BOARD OF SUPERVISORS OF HOPEWELL TOWNSHIP, CURTIS MYERS, DANNY FORRESTER: Civil Action -Mandamus and EUGENE F. MELLINGER Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS AND NOW, come the Defendants,Board of Supervisors of Hopewell Township, Curtis Myers, Danny Forrester, and Eugene F. Mellinger, by and through their solicitor, Sally J. Winder, Esquire and does file the following Preliminary Objections: FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT 1. Plaintiffs named the Supervisors individually, in their official capacity. Under Pa. Rule of Civil Procedure 1094(c) it is sufficient to name the Board of Supervisors as they are the "person" of the political subdivision. Therefore,the Plaintiffs are in error to name the individual Supervisors in their official capacities as Defendants, and the Court should enter an Order dismissing the action as to the individually named Defendants. This Rule is logical since the Board of Supervisors takes the action, or is charged with the duty, and the composition of the Board of Supervisors may change during the course of the litigation. DEMURRER 2. The Plaintiffs have a remedy at law in the Land Use Appeal previously filed: the remedy sought in the Land Use Appeal is effectively the same as sought in this Mandamus Action and the pleadings in the pending Land Use Appeal show that the facts are disputed. Therefore an Action In Mandamus will not lie and the Court should dismiss this action. Plaintiffs should proceed with the Land Use Appeal filed at No. 13-4725 in this Court. 3. Defendants have raised issues of disputed fact in the Land Use case pending before this Court. The remedy sought in that case is identical in effect to the Mandamus requested in this case. The right to a permit is not clear; is not a"ministerial"act,and the Plaintiffs have an adequate remedy at law in the pending Land Use Appeal. Therefore,this Mandamus Action should be dismissed by the Court. WHEREFORE,Defendants request this Honorable Court enter an Order dismissing this action. Respectfully submitted, Sally J. inder Ct ID 24705 P.O. Box 341 Newville,PA 17241 (717) 776 6656 VERIFICATION I verify that the foregoing statements in the Preliminary Objections ofDefendants are true and correct to the best of my knowledge, information, and belief and that as an elected member of the Board of Supervisors of Hopewell Township, I am authorized to execute this verification. These statements are made either upon personal knowledge or upon information received in the conduct of my position as Supervisor. This statement is made subject to the penalties of 18 Pa. C. S. Section 4904 relating to unworn falsifications to authorities, which provides that if I make knowingly false statements I may be subject to criminal penalties. p Date: f 1 1 1 I _ = Jfl .,� Supe r sor HENRY W. NOLT AND MARY P. NOLT:IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff • v. : No. 13- 6237 Civil Term BOARD OF SUPERVISORS OF HOPEWELL TOWNSHIP, • CURTIS MYERS, DANNY FORRESTER: Civil Action -Mandamus and EUGENE F. MELLINGER Defendants CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of Preliminary Objections of Defendants by depositing same in the United States Postal Service, first class postage prepaid on the day of November, 2013 addressed as follows: KURT E. WILLIAMS, ESQ. SALZMANN HUGHES, P.C. 354 ALEXANDER SPRING RD. CARLISLE,PA 17013 f , Sally J. ' inder, Esquire Ct ID 24705 P.O. Box 341 Newville, PA 17241 (717) 776 6656 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) L,A- '� -------------------------------------------------------- CAPTION OF CASE �=' (entire caption must be stated in full) --r.Z ZZ __I rnca —" --r—) Henry W. Nolt and Mary P. Nolt .f ,Plaintifs � � ,' CD C , VS. Board of Supervisors of Hopewell Township, _ `' Curtis Myers, Danny Forrester & No 6237 2013' Tet.w k Eugene F. MEllinger, Defendants_ _ 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint,etc.): Defendant's Preliminary Objections 2. Identify all counsel who will argue cases: C, (a) for plaintiffs: Sally J. Winder, P.O. Box 341, 221 Doubling Gap Rd. (Name and Address) Newville, PA 17241 (b) for defendants: Scott T. Wyland or Kurt E. Williams (Name and Address) 354 Alexander Spring Rd., Carlisle, PA 17015 3. 1 will notify all parties in writing within two days that this case has been listed for argument. YES 4. Argument Court Date: December 20,2013 Sigr Z Print our name Kurt E. Williams Date: November /y , 2013 Attorneyfor plaintiffs INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary) before argument. 2.The moving party shall file and serve their brief 14 days prior to argument. 3.The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA c HENRY W. NOLT AND MARY P. NOLT, NO. 2013-6237 `-� PLAINTIFFS V. BOARD OF SUPERVISORS OF CIVIL ACTION-MAN AAWS HOPEWELL TOWNSHIP, ' CURTIS MYERS,DANNY FORRESTER and EUGENE F. MELLINGER, DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that on the 14th day of November 2013, I served a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT via United States mail, first class,postage prepaid, addressed as follows: Sally J. Winder,Esquire P.O. Box 341 221 Doubling Gap Road Newville,PA 17241 Solicitor to Hopewell Township Respectfully submitted, Date:November 14, 2013 Kurt E. Williams,Esquire Attorney ID No. 75963 Salzmann Hughes,P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717)249-6333 Attorney for Plaintiffs HENRY W. NOLT and MARY P. NOLT, Plaintiffs of V. " (rountp of COMWIRA BOARD OF SUPERVISORS OF IN THE COURT OF COMMON PLEAS HOPEWELL TOWNSHIP, CURTIS OF THE NINTH JUDICIAL DISTRICT MYERS, DANNY FORRESTER, and EUGENE F. MELLINGER, 13-6237 CIVIL ACTION Defendants IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS, P.J., EBERT, J. and PLACEY, J. ORDER OF COURT AND NOW, this 24th day of January 2014, upon consideration of Defendants' Preliminary Objections to Plaintiff's Complaint, Defendants' Brief in support thereof, Plaintiff's Brief in Response, and following argument held on 20 December 2013, Plaintiff's preliminary objections are OVERRULED. Defendants' preliminary objection seeking to remove the individual board members as defendants is OVERRULED. While Pa.R.C.P. 1094(c) makes it sufficient to name the Board of Supervisors as the defendant because they are the "person" of the political subdivision; the provision is neither mandatory nor exclusive. Instead, Pa.R.C.P. 1094(a), which is also permissive, allows a plaintiff to name the officers, in their official capacities, as defendants. Defendants' preliminary objection seeking demurrer of this Mandamus action as duplicative of the Land Use Appeal is OVERRULED. This Mandamus action seeks the immediate, mandatory approval of the 7 December 2011 revised plan (as a preliminary plan) based on the Board's failure to approve or deny said plan within the statutory time limit; the Land Use Appeal seeks to prove that the 7 December 2011 revised plan was the one preliminarily approved on 5 November 2012 and therefore seeks its approval as a final plan. These actions seek different remedies and are therefore not duplicative. However, in the interest of judicial economy and efficiency, this mandamus action is hereby STAYED pending the result of the Land Use Appeal which may render this action moot. BY Thomas lacey, C.P.J. Distribution Ily J. Winder, Esq. urt E. Williams, Esq. rn, L act// <' a--n a 2 0281.11::Er.piL ID 9 - OFp''ICE 61' PRO THatkinC- IN THE COURT OF COMMON PLEAS . '5 CUMBERLAND COUNTY, PENNSYLVANIA C/RIB_ERL PLA'AiA iii, s yt, YJANIACOUNTY HENRY W. NOLT AND MARY P. NOLT, : • NO. 2013 - 6237 PLAINTIFFS • BOARD OF SUPERVISORS OF HOPE WELL TOWNSHIP, CURTIS MYERS, DANNY FORRESTER and EUGENE F. MELLINGER, DEFENDANTS CIVIL ACTION- MANDAMUS PRAECIPE TO SETTLE, DISCONTINUE AND END Dear Prothonotary: Please mark the record in the above case "Settled, Discontinued and Ended." September 17, 2014 Respectfully submitted, Kurt E. Williams Supreme Court ID 75963 Salzmann Hughes, P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717) 249-6333 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HENRY W. NOLT AND MARY P. NOLT, PLAINTIFFS BOARD OF SUPERVISORS OF HOPE WELL TOWNSHIP, CURTIS MYERS, DANNY FORRESTER • and EUGENE F. MELLINGER, DEFENDANTS NO. 2013 - 6237 CIVIL ACTION- MANDAMUS CERTIFICATE OF SERVICE I hereby certify that on the 17th day of September 2014, I served a true and correct copy of the foregoing Praecipe via United States mail, first class, postage prepaid, addressed as follows: Sally J. Winder, Esquire P.O. Box 341 221 Doubling Gap Road Newville, PA 17241 Solicitor to Hopewell Township Kurt E. Williams Supreme Court ID 75963 Salzmann Hughes, P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717) 249-6333