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HomeMy WebLinkAbout14-2194 Supreme Co '' ,nnsylvania COUt' r 6int"o leas For Prothonotary Use Only: V r k Docket No: Cu, tl County J I The information collected on this form is used solely for- court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court. 1 Commencement of Action: S Complaint © Writ of Summons ® Petition Q Transfer from Another Jurisdiction rj Declaration of Taking E i C Lead Plaintiff's Name: Lead Defendant's Name: iT Richard Mellinger Borough of Carlisle, PA I Are money damages requested? El Yes © No Dollar Amount Requested: 11 within arbitration limits O (check one) ®x, outside arbitration limits N Is this a Class Action Suit? Yes I@ No Is this an MDJAppeal? 13 Yes X! No A Name ofPlaintifl' /Appellant's Attorney: Peter Britton Bieri (PA 314960) ® 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 Intentional ©- Buyer Plaintiff Administrative Agencies pJ Malicious Prosecution © Debt Collection: Credit Card [3 Board of Assessment Motor Vehicle ® Debt Collection: Other 0 Nuisance ©Board of Elections L7 Dept. of Transportation ® Premises Liability n Statutory Appeal: Other S 0 Product Liability (does not include E mass tort) © Employment Dispute: ® Slander/Libel/ Defamation Discrimination C E3 Other: Employment Dispute: Other 17-1 Zoning Board 'I' 13 Other: T © Other: O MASS TORT M Asbestos N ril Tobacco ® Toxic Tort - DES i 0 Toxic Tort -Implant REAL PROPERTY i ® Toxic Waste MISCELLANEOUS Other: ® Ejectment E3 Common Law /Statutory Arbitration i B © Eminent Domain /Condemnation 0 Declaratory Judgment 13 Ground Rent © Mandamus M Landlord /Tenant Dispute 0 Non- Domestic Relations ® Mortgage Foreclosure: Residential Restraining Order i PROFESSIONAL LIABLITY © Mortgage Foreclosure: Commercial 0 Quo Warranto Dental ® Partition 1771 Replevin Legal © Quiet Title Other: Medical 0 Other: © Other Professional: Updated 1/1/2011 hQNU IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PR RICHARD MELLINGER; ) r ER AND COUNT GALE MELLINGER; ) t 5`I'� 4ar,�31 MICHAEL YOUNG; ) MEGAN YOUNG; ) LESLIE MEACOCK; ) SHARON MEACOCK; ) CARL BIVENS; JOAN TOSTEN; ) Case No. MARIAN ROCKER; ) H. WAYNE SWEGER; ) JURY TRIAL DEMANDED DEBORAH SWEGER; ) MATTHEW ROBINSON; ) SHANNON ROBINSON; and ) COURTNEY HEINBAUGH, a minor, ) by and through her mother, ) SHANNON ROBINSON; ) PLAINTIFFS, ) V. ) BOROUGH OF CARLISLE, PENNSYLVANIA ) A /K /A CARLISLE BOROUGH MUNICIPAL AUTHORITY; ) and ) TIM FAHNESTOCK; ) DEFENDANTS. ) COMPLAINT Plaintiffs, by and through their attorneys, allege the following against Defendants Borough of Carlisle, Pennsylvania a /k /a Carlisle Borough Municipal Authority ( "Carlisle ") and Tim Fahnestock ( "Fahnestock ") (collectively referred to as "Defendants ") for the actions and omissions alleged herein: ahA a f C., sot NATURE OF THE CASE 1. This is an action for private temporary nuisance and continuing negligence brought by property owners or rightful property occupants of Cumberland County, Pennsylvania on their own behalf against Defendants. 2. On or about March 11, 2013, Defendant Carlisle filed with the Pennsylvania Department of Environmental Protection ( "DEP ") its intent to land apply sewage sludge to land owned by Defendant Fahnestock at or near 3663 Ritner Highway, Newville, PA 17241 in West Pennsboro Township and Penn Township, Cumberland County, PA under General Permit Number PAG -08 -3570. 3. On or about April 12, 2013, the DEP determined that the Fahnestock land was suitable for land application of sewage sludge and thereafter published notice of this determination in the Pennsylvania Bulletin. Pursuant to Pennsylvania law, persons aggrieved by this action were given 30 days to appeal to the Environmental Hearing Board ( "EHB "). 4. On or about May 13, 2013, Defendant Carlisle began spreading sewage sludge on Defendant Fahnestock's land and has frequently done so on several occasions after that date. The exact dates and times of the spreading activities are better known to Defendants. S. Upon reasonable belief, the sewage sludge spread by Defendant Carlisle with Defendant Fahnestock's permission does or may contain the following, but not limited to the following substances: municipal waste water; liquid that has been used in urban and suburban homes for washing, bathing, and toilets; sewage from industrial sources; medical and hospital waste; thousands of organic materials /chemicals; many pathogens; many 2 WP toxins; bacteria; antibiotics, steroids; hormones, nitrates, nitrites; semivolatile organic compounds; polycyclic aromatic hydrocarbons, polychlorinated biphenyls [PCBs]; dioxins; endotoxins; lime; debris; grit; oils; grease; heavy metals; nitrogen; phosphorous; potassium; calcium; magnesium; arsenic; cadmium; chromium; copper; mercury; molybdenum; nickel; lead; selenium; zinc; and other substances. According to the Pennsylvania State College of Agricultural Sciences and other sources, failure to properly monitor and manage these materials could adversely affect human and animal health, soil quality, plant growth, air and water quality. 6. The spreading of such sewage sludge in the manner done by Defendant Carlisle' creates horribly offensive odors and other air and surface emissions that frequently invade Plaintiffs' properties and causes or threatens to cause significant impairment of waters in the area including Plaintiffs' water sources. As a result, Plaintiffs have and continue to suffer significant impairment interference with their use and quiet enjoyment of their lives, homes, and property, and other damages for which they are entitled to compensation. 7. Upon information and belief, sewage sludge had never been applied to the Fahnestock property prior to May 13, 2013. 8. Upon information and belief, from May 13, 2013 and frequently after that time, Defendant Carlisle has frequently spread the sewage sludge improperly, including but not limited to the following ways, thereby causing significant and frequent odors, other air and surface emissions and potential or actual runoff: ' Plaintiffs will inquire in discovery as to whether Defendant Fahnestock and others also actively participate in the spreading of the sewage sludge and if warranted, will seek to amend this Complaint accordingly. 3 r a. Spraying the sewage sludge out of the back of a vehicle with no apparent regard for application rates, odor control, emission control, or runoff control; b. Spreading sewage sludge during or just before rain events; c. Allowing sewage sludge to be deposited and /or spread onto roadways; and d. Failure to follow proscribed setbacks on spreading sewage sludge with respect to sinkholes, roads, and occupied properties. 9. Plaintiffs all live and /or own property in close proximity to the Fahnestock property and are adversely affected by the frequent land application of the sewage sludge. 10. Since Defendants first stated their intentions to apply such sewage sludge, and during and after the applications of such sewage sludge, one or more Plaintiffs and others have complained to Defendants and /or their representatives, the DEP and local townships regarding the problems created by the spreading. 11. On October 1, 2012, counsel for Plaintiffs sent a letter to Defendant Carlisle, Defendant Fahnestock, and various representatives of the West Pennsboro Township and Penn Townships outlining many of the issues Plaintiffs and others had with Defendants' plan to spread the ,sewage sludge on Defendant Fahnestock's property in close proximity to the neighbors' properties, including -diminishment of quality of life. The letter further advised that the matter should be considered to be in litigation. 12. On or about October 11, 2012, after seeing a sign in a Fahnestock field on or about August 20 or August 21, 2012, Plaintiff Gale Mellinger on behalf of the group "Against Biosolid Contamination" filed a Notice of Appeal to the Commonwealth of Pennsylvania 4 EHB (EHB Docket No. 2012- 163 -M) alleging that improper notice was given, that the land proposed for land application was within a watershed, and that same was too close to Big Spring Creek. 13. Thereafter, several hearings were held before the EHB and were attended in person or by phone by representatives of DEP, representatives of Defendant Carlisle and Defendant Fahnestock himself. 14. Further, on or about May 13, 2013, Plaintiffs' counsel filed their First Amended Petition for Supersedeas Stay of Action in case No. 2012 -163 -M which was served upon DEP, Defendant Fahnestock, and Defendant Carlisle. PARTIES 15. Plaintiffs Richard Mellinger and Gale Mellinger ( "Plaintiffs Mellinger ") reside at and /or own property at 119 Springfield Road, Newville, PA 17241, which is in close proximity to Defendant Fahnestock's property at issue in this case. 16. Plaintiffs Mellinger resided at this address long before the time Defendant Carlisle began spreading sewage sludge on Defendant Fahnestock's property. 17. Plaintiffs Michael Young and Megan Young ( "Plaintiffs Young ") reside at and /or own property at 3574 Ritner Highway, Newville, PA 17241, which is in close proximity to Defendant Fahnestock's property at issue in this case. 18. Plaintiffs Young resided at this address long before the time Defendant Carlisle began spreading sewage sludge on Defendant Fahnestock's property. 19. Plaintiffs Leslie Meacock and Sharon Meacock ( "Plaintiffs Meacock ") reside at and /or own property at 142 Log Cabin Road, Newville, PA 17241, which is in close proximity to Defendant Fahnestock's property at issue in this case. 5 20. Plaintiffs Meacock resided at this address long before the time Defendant Carlisle began spreading sewage sludge on Defendant Fahnestock's property. 21. Plaintiff Carl Bivens and Plaintiff Joan Tosten ( "Plaintiffs Biven /Tosten ") reside at and /or own property at 30 Stoneledge Road, Newville, PA 17241, which is in close proximity to Defendant Fahnestock's property at issue in this case. 22. Plaintiffs Biven/Tosten resided at this address long before the time Defendant Carlisle began spreading sewage sludge on Defendant Fahnestock's property. 23. Plaintiff Marian Hocker ( "Plaintiff Hocker ") reside at and /or own property at 138 Log Cabin Road, Newville, PA 17241, which is in close proximity to Defendant Fahnestock's property at issue in this case. 24. Plaintiff Hocker resided at this address long before the. time Defendant Carlisle began spreading sewage sludge on Defendant Fahnestock's property. 25. Plaintiffs H. Wayne Sweger and Deborah Sweger ( "Plaintiffs Sweger") reside at and /or own property at 8 Lexington Dr., Newville, PA 17241, which is in close proximity to Defendant Fahnestock's property at issue in this case. 26. Plaintiffs Sweger resided at this address long before the time Defendant Carlisle began spreading sewage sludge on Defendant Fahnestock's property. 27. Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heinbaugh, a minor, by and through her mother, Shannon Robinson ( "Plaintiffs Robinson ") reside at and /or own property at 128 Springfield Rd., Newville, PA 17241, which is in close proximity to Defendant Fahnestock's property at issue in this case. 28. Plaintiffs Robinson resided at this address long before the time Defendant Carlisle began spreading sewage sludge on Defendant Fahnestock's property. 6 29. Defendant Carlisle is a governmental entity that since May 13, 2013 and on frequent occasions since then, land applies, or causes to be land applied large volumes of sewage sludge on property owned by Defendant Fahnestock. 30. Defendant Fahnestock owns land located at or near 3663 Ritner Highway, Newville, PA 17241 in West Pennsboro Township and Penn Township, Cumberland County, PA where he allows Defendant Carlisle to frequently land apply sewage sludge. IURISDICTION AND VENUE 31. This Court has subject matter jurisdiction over the claims set forth herein because the damages to Pennsylvania citizens alleged to have been caused by Defendants were sustained in the State of Pennsylvania. The Court has personal jurisdiction over Defendants because, inter alia, they conduct business and /or own property within the State of Pennsylvania. 32. Venue is appropriate because this is a tort action and the Plaintiffs' injuries occurred in Cumberland County, Pennsylvania. COUNT 1- PLAINTIFFS RICHARD AND GALE MELLINGER AGAINST DEFENDANT BOROUGH OF CARLISLE (TEMPORARY NUISANCE AND FAILURE TO ABATE) 33. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 34. Plaintiffs Richard and Gale Mellinger have and /or had possessory rights to their property located at 119 Springfield Rd., Newville, PA 17241, which is in close proximity to where Defendant Carlisle frequently land applies sewage sludge on property owned by Defendant Fahnestock. 7 35. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Mellinger's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Mellinger have thereby been damaged. 36. Plaintiffs Mellinger have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; yard work; sitting on their porch; taking walks; playing in the yard with their grandchildren; picnics, cookouts, and hanging laundry to dry. Further, Plaintiffs Mellinger are often forced to keep their windows closed to prevent the odors and other emissions from coming into their home. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. 37. Further, upon reasonable belief, Defendant Carlisle's spreading of sewage sludge in close proximity to Plaintiffs Mellinger's property without properly controlling the application rate and runoff caused the Mellinger's water well to become contaminated in May of 2013 and was rendered unsafe to drink. 38. Defendant Carlisle, through the care, custody, or control of real property in its custody and /or control, has frequently caused the above conditions and resulting 8 injuries to Plaintiffs Mellinger, Plaintiffs Mellinger's property, and associated right to use and quiet enjoyment of property. 39. Upon reasonable belief, Defendant Carlisle knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Mellinger's property and cause such damages. 40. Upon reasonable belief, Defendant Carlisle knew or should have known that the runoff from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would encroach upon and impair Plaintiffs Mellinger's water supply. 41. Defendant Carlisle knew or should have known that its conduct described herein had and has a substantial likelihood of causing significant injury to Plaintiffs Mellinger, Plaintiffs Mellinger's property rights, Plaintiffs Mellinger's quality of life, and Plaintiffs Mellinger's use and quiet enjoyment of their property. 42. Defendant Carlisle knew or should have known that technologies, methods, or other steps are reasonably and readily available to abate the offensive and noxious odors, pathogens, other air and surface emissions, and contaminated runoff from the sewage sludge applications on Defendant Fahnestock's property, but failed to take reasonable steps to abate same. 43. Defendant Carlisle' care, custody, and control of the land upon which it spreads the sewage sludge at issue, including Defendant Carlisle's frequent improper and 9 negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 44. Defendant Carlisle is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Mellinger by its acts and /or omissions in the storage and land application of the sewage sludge and its failure to abate such temporary nuisance. 45. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Mellinger had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Mellinger have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 10 r 46. Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Carlisle has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 47. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Mellinger's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Richard and Gale Mellinger hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Richard and Gale Mellinger for all injuries caused by Defendant Carlisle's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. COUNT 2 - PLAINTIFFS RICHARD AND GALE MELLINGER AGAINST DEFENDANT BOROUGH OF CARLISLE (CONTINUING NEGLIGENCE) 48. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 49. At all times relevant herein, Defendant Carlisle had the following continuing legal duties to use reasonable care in the care, custody, and control of the real property in 11 its possession, including the fields owned by Defendant Fahnestock on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiffs Mellinger, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; g. Duty to not cause surface or groundwater pollution; and h. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 50. Upon reasonable belief, Defendant Carlisle, or its agents or employees, have frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Mellinger and their property. 51. These frequent breaches of duties of care by Defendant Carlisle have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiffs Mellinger and their property. 12 52. Defendant Carlisle's method of land applying the sewage sludge, which does not control odors, pathogens, and other air and surface emissions, does not reflect the use of reasonable care by Defendant Carlisle. 53. Defendant Carlisle knew or should have known that its improper care, custody, and control of Defendant Fahnestock's property, especially in relation to its improper application of sewage sludge, would result in a foreseeable risk of and actual injury to Plaintiffs Mellinger and their property. 54. Upon reasonable belief, Defendant Carlisle knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Mellinger and their property, but failed to do so. 55. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Mellinger's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Richard and Gale Mellinger hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Richard and Gale Mellinger for all injuries caused by Defendant Carlisle's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. 13 COUNT 3 - PLAINTIFFS RICHARD AND GALE MELLINGER AGAINST DEFENDANT TIM FAHNESTOCK (TEMPORARY NUISANCE AND FAILURE TO ABATE) 56. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 57. Defendant Fahnestock, owns the property located at 3633 Ritner Highway, Newville, PA 17241. 58. Upon reasonable belief, in or around August of 2012, Defendant Fahnestock and Defendant Carlisle began planning to agree to allow Defendant Carlisle to spread large quantities of sewage sludge on property owned by Defendant Fahnestock. 59. On or about October 11, 2012, after seeing a sign in a Fahnestock field on or about August 20 or August 21, 2012, Plaintiff Gale Mellinger on behalf of the group "Against Biosolid Contamination" filed a Notice of Appeal to the Commonwealth of Pennsylvania EHB (EHB Docket No. 2012 - 163 -M) alleging that improper notice was given, that the land proposed for land application was within a watershed, and that same was too close to Big Spring Creek. 60. Thereafter, several hearings were held before the EHB and were attended in person or by phone by representatives of Defendant Carlisle and Defendant Fahnestock himself. 61. As such, prior to the filing of the Notice of Intent to Spread, the first spreading event and the filing of this lawsuit, Defendants Fahnestock and Carlisle had long been aware of the objections of neighbors to the spreading of sewage sludge on the Fahnestock property. 14 4 62. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Mellinger's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Mellinger have thereby been damaged. 63. Plaintiffs Mellinger have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; yard work; sitting on their porch; taking walks; playing in the yard with their grandchildren; picnics, cookouts, and hanging laundry to dry. Further, Plaintiffs Mellinger are often forced to keep their windows closed to prevent the odors and other emissions from coming into their home. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. 64. Further, upon reasonable belief, Defendant Carlisle's spreading of sewage sludge on property owned by Defendant Fahnestock in close proximity to Plaintiffs Mellinger's property without properly controlling the application rate and runoff caused the Mellinger's water well to become contaminated in May of 2013 and was rendered unsafe to drink. 15 65. Defendant Fahnestock, through his agreements with Defendant Carlisle to allow Defendant Carlisle to spread large amounts of sewage sludge on his property, caused or contributed to cause the above conditions and resulting injuries to Plaintiffs Mellinger, Plaintiffs Mellinger's property, and associated right to use and quiet enjoyment of property. 66. Upon reasonable belief, Defendant Fahnestock knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Mellinger's property and cause such damages. 67. Upon reasonable belief, Defendant Fahnestock knew or should have known that the runoff from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would encroach upon and impair Plaintiffs Mellinger's water supply. 68. While knowing that Defendant Carlisle's proposed activities would and do foreseeably injure Plaintiffs Mellinger, Defendant Fahnestock allowed and continues to allow Defendant Carlisle to cause offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property to encroach onto Plaintiffs Mellinger's property. 69. Defendant Fahnestock's disregard of Plaintiffs Mellinger's property and property rights, and acquiescence in Defendant Carlisle's improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 16 70. As a result, Defendant Fahnestock is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Mellinger by his acts and /or omissions in entrusting Defendant Carlisle with the storage and land application of the sewer sludge onto his own property and his failure to abate such temporary nuisance. 71. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Mellinger had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Mellinger have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 17 72. Defendant Fahnestock's conduct and /or acquiescence in Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Fahnestock has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 73. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Mellinger's rights, thereby justifying an award of punitive damages against Defendant Fahnestock. WHEREFORE, Plaintiffs Richard and Gale Mellinger hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Richard and Gale Mellinger for all injuries caused by Defendant Fahnestock's acts . and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 4 - PLAINTIFFS RICHARD AND GALE MELLINGER AGAINST DEFENDANT TIM FAHNESTOCK CONTINUING NEGLIGENCE) 74. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 18 75. At all times relevant herein, Defendant Fahnestock had continuing legal duties to use reasonable care in the ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiffs Mellinger, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; g. Duty to not cause surface or groundwater pollution; and h. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 76. Upon reasonable belief, Defendant Fahnestock has frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Mellinger and their property. 77. These frequent breaches of duties of care by Defendant Fahnestock have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, 19 , b and other air and surface emissions which have adversely impacted Plaintiffs Mellinger and their property. 78. Defendant Fahnestock knowingly allowed and continues to allow Defendant Carlisle to use his property in a way which causes substantial injuries to Plaintiffs Mellinger, Plaintiffs Mellinger's property, and Plaintiffs Mellinger's property rights, thereby breaching Defendant Fahnestock's own duties of care identified above. 79. Defendant Fahnestock's ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case does not reflect the use of reasonable care by Defendant Fahnestock. 80. Defendant Fahnestock knew or should have known that his ownership, use, and maintenance of his property, including his fields on which he allows Defendant Carlisle to apply the sewage sludge at issue in this case would result in a foreseeable risk of actual injury to Plaintiffs Mellinger and their property. 81. Upon reasonable belief, Defendant Fahnestock knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Mellinger and their property, but failed to do so. 82. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Mellinger's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Richard and Gale Mellinger hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly 20 and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Richard and Gale Mellinger for all injuries caused by Defendant Fahnestock's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 5 - PLAINTIFFS MICHAEL AND MEGAN YOUNG AGAINST DEFENDANT BOROUGH OF CARLISLE (TEMPORARY NUISANCE AND FAILURE TO ABATE) 83. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 84. Plaintiffs Michael and Megan Young have and /or had possessory rights to their property located at 3574 Ritner Highway, Newville, PA 17241, Newville, PA 17241, which is in close proximity to where Defendant Carlisle frequently land applies sewage sludge on property owned by Defendant Fahnestock. 85. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Young's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, 21 a inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Young have thereby been damaged. 86. Plaintiffs Young have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; barbecues /grilling outside; gardening; shooting; hunting; playing with their son; and yard work. Further, Plaintiffs Young are often forced to keep their windows closed to prevent the odors and other emissions from coming into their home. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. 87. Defendant Carlisle, through the care, custody, or control of real property in its custody and /or control, has frequently caused the above conditions and resulting injuries to Plaintiffs Young, Plaintiffs Young's property, and associated right to use and quiet enjoyment of property. 88. Upon reasonable belief, Defendant Carlisle knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Young's property and cause such damages. 89. Defendant Carlisle knew or should have known that its conduct described herein had and has a substantial likelihood of causing significant injury to Plaintiffs Young, Plaintiffs Young's property rights, Plaintiffs Young's quality of life, and Plaintiffs Young's use and quiet enjoyment of their property. 22 90. Defendant Carlisle knew or should have known that technologies, methods, or other steps are reasonably and readily available to abate the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge applications on Defendant Fahnestock's property, but failed to take reasonable steps to abate same. 91. Defendant Carlisle' care, custody, and control of the land upon which it spreads the sewage sludge at issue, including Defendant Carlisle's frequent improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 92. Defendant Carlisle is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Young by its acts and /or omissions in the storage and land application of the sewage sludge and its failure to abate such temporary nuisance. 93. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Young had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Young have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute 23 significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 94. Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Carlisle has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 95. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Young's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Michael and Megan Young hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each ,other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Michael and Megan Young for all injuries caused by Defendant Carlisle's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. 24 COUNT 6 - PLAINTIFFS MICHAEL AND MEGAN YOUNG AGAINST DEFENDANT BOROUGH OF CARLISLE (CONTINUING NEGLIGENCE) 96. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 97. At all times relevant herein, Defendant Carlisle had the following continuing legal duties to use reasonable care in the care, custody, and control of the real property in its possession, including the fields owned by Defendant Fahnestock on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiffs Young, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 98. Upon reasonable belief, Defendant Carlisle, or its agents or employees, have frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real 25 property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Young and their property. 99. These frequent breaches of duties of care by Defendant Carlisle have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiffs Young and their property. 100. Defendant Carlisle's method of land applying the sewage sludge, which does not control odors, pathogens, and other air and surface emissions, does not reflect the use of reasonable care by Defendant Carlisle. 101. Defendant Carlisle knew or should have known that its improper care, custody, and control of Defendant Fahnestock's property, especially in relation to its improper application of sewage sludge, would result in a foreseeable risk of and actual injury to Plaintiffs Young and their property. 102. Upon reasonable belief, Defendant Carlisle knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Young and their property, but failed to do so. 103. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Young's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Michael and Megan Young hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the 26 applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Michael and Megan Young for all injuries caused by Defendant Carlisle's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. COUNT 7 - PLAINTIFFS MICHAEL AND MEGAN YOUNG AGAINST DEFENDANT TIM FAHNESTOCK (TEMPORARY NUISANCE AND FAILURE TO ABATE 104. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 105. Defendant Fahnestock, owns the property located at 3633 Ritner Highway, Newville, PA 17241. 106. Upon reasonable belief, in or around August of 2012, Defendant Fahnestock and Defendant Carlisle began planning to agree to allow Defendant Carlisle to spread large quantities of sewage sludge on property owned by Defendant Fahnestock. 107. On or about October 11, 2012, after seeing a sign in a Fahnestock field on or about August 20 or August 21, 2012, Plaintiff Gale Mellinger on behalf of the group "Against Biosolid Contamination" filed a Notice of Appeal to the Commonwealth of Pennsylvania EHB (EHB Docket No. 2012 - 163 -M) alleging that improper notice was given, that the land proposed for land application was within a watershed, and that same was too close to Big Spring Creek. 27 108. Thereafter, several hearings were held before the EHB and were attended in person or by phone by representatives of Defendant Carlisle and Defendant Fahnestock himself. 109. As such, prior to the filing of the Notice of Intent to Spread, the first spreading event and the filing of this lawsuit, Defendant Fahnestock had long been aware of the objections of neighbors to the spreading of sewage sludge on the Fahnestock property. 110. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Young's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Young have thereby been damaged. 111. Plaintiffs Young have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; barbecues /grilling outside; gardening; shooting; hunting; playing with their son; and yard work. Further, Plaintiffs Young are often forced to keep their windows closed to prevent the odors and other emissions from coming into their home. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. 28 112. Defendant Fahnestock, through his agreements with Defendant Carlisle to allow Defendant Carlisle to spread large amounts of sewage sludge on his property, caused or contributed to cause the above conditions and resulting injuries to Plaintiffs Young, Plaintiffs Young's property, and associated right to use and quiet enjoyment of property. 113. Upon reasonable belief, Defendant Fahnestock knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Young's property and cause such damages. 114. While knowing that Defendant Carlisle's proposed activities would and do foreseeably injure Plaintiffs Young, Defendant Fahnestock allowed and continues to allow Defendant Carlisle to cause offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property to encroach onto Plaintiffs Young's property. 115. Defendant Fahnestock's disregard of Plaintiffs Young's property and property rights, and acquiescence in Defendant Carlisle's improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 116. As a result, Defendant Fahnestock is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Young by his acts and /or omissions in entrusting Defendant Carlisle with the storage and land application of the sewer sludge onto his own property and his failure to abate such temporary nuisance. 29 i 3 117. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Young had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Young have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 118. Defendant Fahnestock's conduct and /or acquiescence in Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Fahnestock has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 30 119. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Young's rights, thereby justifying an award of punitive damages against Defendant Fahnestock. WHEREFORE, Plaintiffs Michael and Megan Young hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Michael and Megan Young for all injuries caused by Defendant Fahnestock's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 8 - PLAINTIFFS MICHAEL AND MEGAN YOUNG AGAINST DEFENDANT TIM FAHNESTOCK (CONTINUING NEGLIGENCE) 120. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 121. At all times relevant herein, Defendant Fahnestock had continuing legal duties to use reasonable care in the ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: 31 a. Duty to not harm neighbors, including Plaintiffs Young, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 122. Upon reasonable belief, Defendant Fahnestock has frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Young and their property. 123. These frequent breaches of duties of care by Defendant Fahnestock have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiffs Young and their property. 124. Defendant Fahnestock knowingly allowed and continues to allow Defendant Carlisle to use his property in a way which causes substantial injuries to Plaintiffs Young, 32 Fahnestock's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 9 - PLAINTIFFS LESLIE AND SHARON MEACOCK AGAINST DEFENDANT BOROUGH OF CARLISLE (TEMPORARY NUISANCE AND FAILURE TO ABATE) 129. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 130. Plaintiffs Leslie and Sharon Meacock have and /or had possessory rights to their property located at 142 Log Cabin Road, Newville, PA 17241, Newville, PA 17241, which is in close proximity to where Defendant Carlisle frequently land applies sewage sludge on property owned by Defendant Fahnestock. 131. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Meacock's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Meacock have thereby been damaged. 34 132. Plaintiffs Meacock have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; gardening; and lawn maintenance; Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. 133. Defendant Carlisle, through the care, custody, or control of real property in its custody and /or control, has frequently caused the above conditions and resulting injuries to Plaintiffs Meacock, Plaintiffs Meacock's property, and associated right to use and quiet enjoyment of property. 134. Upon reasonable belief, Defendant Carlisle knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Meacock's property and cause such damages. 135. Defendant Carlisle knew or should have known that its conduct described herein had and has a substantial likelihood of causing significant injury to Plaintiffs Meacock, Plaintiffs Meacock's property rights, Plaintiffs Meacock's quality of life, and Plaintiffs Meacock's use and quiet enjoyment of their property. 136. Defendant Carlisle knew or should have known that technologies, methods, or other steps are reasonably and readily available to abate the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge applications on Defendant Fahnestock's property, but failed to take reasonable steps to abate same. 137. Defendant Carlisle' care, custody, and control of the land upon which it spreads the sewage sludge at issue, including Defendant Carlisle's frequent improper and 35 negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 138. Defendant Carlisle is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Meacock by its acts and /or omissions in the storage and land application of the sewage sludge and its failure to abate such temporary nuisance. 139. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Meacock had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Meacock have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive. nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 36 140. Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Carlisle has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 141. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Meacock's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Leslie and Sharon Meacock hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Leslie and Sharon Meacock for all injuries caused by Defendant Carlisle's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. COUNT 10 - PLAINTIFFS LESLIE AND SHARON MEACOCK AGAINST DEFENDANT BOROUGH OF CARLISLE (CONTINUING NEGLIGENCEI 142. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 143. At all times relevant herein, Defendant Carlisle had the following continuing legal duties to use reasonable care in the care, custody, and control of the real property in 37 its possession, including the fields owned by Defendant Fahnestock on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiffs Meacock, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 144. Upon reasonable belief, Defendant Carlisle, or its agents or employees, have frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Meacock and their property. 145. These frequent breaches of duties of care by Defendant Carlisle have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiffs Meacock and their property. 38 146. Defendant Carlisle's method of land applying the sewage sludge, which does not control odors, pathogens, and other air and surface emissions, does not reflect the use of reasonable care by Defendant Carlisle. 147. Defendant Carlisle knew or should have known that its improper care, custody, and control of Defendant Fahnestock's property, especially in relation to its improper application of sewage sludge, would result in a foreseeable risk of and actual injury to Plaintiffs Meacock and their property. 148. Upon reasonable belief, Defendant Carlisle knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Meacock and their property, but failed to do so. 149. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Meacock's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Leslie and Sharon Meacock hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Leslie and Sharon Meacock for all injuries caused by Defendant Carlisle's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. 39 Plaintiffs Young's property, and Plaintiffs Young's property rights, thereby breaching Defendant Fahnestock's own duties of care identified above. 125. Defendant Fahnestock's ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case does not reflect the use of reasonable care by Defendant Fahnestock. 126. Defendant Fahnestock knew or should have known that his ownership, use, and maintenance of his property, including his fields on which he allows Defendant Carlisle to apply the sewage sludge at issue in this case would result in a foreseeable risk of actual injury to Plaintiffs Young and their property. 127. Upon reasonable belief, Defendant Fahnestock knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Young and their property, but failed to do SO. 128. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Young's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Michael and Megan Young hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Michael and Megan Young for all injuries caused by Defendant 33 COUNT 11- PLAINTIFFS LESLIE AND SHARON MEACOCK AGAINST DEFENDANT TIM FAHNESTOCK (TEMPORARY NUISANCE AND FAILURE TO ABATE) 150. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 151. Defendant Fahnestock, owns the property located at 3633 Ritner Highway, Newville, PA 17241. 152. Upon reasonable belief, in or around August of 2012, Defendant Fahnestock and Defendant Carlisle began planning to agree to allow Defendant Carlisle to spread large quantities of sewage sludge on property owned by Defendant Fahnestock. 153. On or about October 11, 2012, after seeing a sign in a Fahnestock field on or about August 20 or August 21, 2012, Plaintiff Gale Mellinger on behalf of the group "Against Biosolid Contamination" filed a Notice of Appeal to the Commonwealth of Pennsylvania EHB (EHB Docket No. 2012 - 163 -M) alleging that improper notice was given, that the land proposed for land application was within a watershed, and that same was too close to Big Spring Creek. 154. Thereafter, several hearings were held before the EHB and were attended in person or by phone by representatives of Defendant Carlisle and Defendant Fahnestock himself. 155. As such, prior to the filing of the Notice of Intent to Spread, the first spreading event and the filing of this lawsuit, Defendant Fahnestock had long been aware of the objections of neighbors to the spreading of sewage sludge on the Fahnestock property. 156. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions 40 from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Meacock's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Meacock have thereby been damaged. 157. Plaintiffs Meacock have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; gardening; and lawn maintenance; Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. 158. Defendant Fahnestock, through his agreements with Defendant Carlisle to allow Defendant Carlisle to spread large amounts of sewage sludge on his property, caused or contributed to cause the above conditions and resulting injuries to Plaintiffs Meacock, Plaintiffs Meacock's property, and associated right to use and quiet enjoyment of property. 159. Upon reasonable belief, Defendant Fahnestock knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Meacock's property and cause such damages. 160. While knowing that Defendant Carlisle's proposed activities would and do foreseeably injure Plaintiffs Meacock, Defendant Fahnestock allowed and continues to 41 allow Defendant Carlisle to cause offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property to encroach onto Plaintiffs Meacock's property. 161. Defendant Fahnestock's disregard of Plaintiffs Meacock's property and property rights, and acquiescence in Defendant Carlisle's improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 162. As a result, Defendant Fahnestock is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Meacock by his acts and /or omissions in entrusting Defendant Carlisle with the storage and land application of the sewer sludge onto his own property and his failure to abate such temporary nuisance. 163. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Meacock had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Meacock have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. . Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute 42 significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 164. Defendant Fahnestock's conduct and /or acquiescence in Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Fahnestock has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 165. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Meacock's rights, thereby justifying an award of punitive damages against Defendant Fahnestock. WHEREFORE, Plaintiffs Leslie and Sharon Meacock hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Leslie and Sharon Meacock for all injuries caused by Defendant Fahnestock's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, 43 for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 12 - PLAINTIFFS LESLIE AND SHARON MEACOCK AGAINST DEFENDANT TIM FAHNESTOCK (CONTINUING NEGLIGENCE) 166. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 167. At all times relevant herein, Defendant Fahnestock had continuing legal duties to use reasonable care in the ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiffs Meacock, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 168. Upon reasonable belief, Defendant Fahnestock has frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and 44 repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Meacock and their property. 169. These frequent breaches of duties of care by Defendant Fahnestock have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiffs Meacock and their property. 170. Defendant Fahnestock knowingly allowed and continues to allow Defendant Carlisle to use his property in a way which causes substantial injuries to Plaintiffs Meacock, Plaintiffs Meacock's property, and Plaintiffs Meacock's property rights, thereby breaching Defendant Fahnestock's own duties of care identified above. 171. Defendant Fahnestock's ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case does not reflect the use of reasonable care by Defendant Fahnestock. 172. Defendant Fahnestock knew or should have known that his ownership, use, and maintenance of his property, including his fields on which he allows Defendant Carlisle to apply the sewage sludge at issue in this case would result in a foreseeable risk of actual injury to Plaintiffs Meacock and their property. 173. Uponi reasonable belief, Defendant Fahnestock knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Meacock and their property, but failed to do so. 45 174. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Meacock's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Leslie and Sharon Meacock hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Leslie and Sharon Meacock for all injuries caused by Defendant Fahnestock's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 13 - PLAINTIFFS CARL BIVENS AND JOAN TOSTEN AGAINST DEFENDANT BOROUGH OF CARLISLE (TEMPORARY NUISANCE AND FAILURE TO ABATE) 175. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 176. Plaintiffs Carl Bivens and Joan Tosten have and /or had possessory rights to their property located at 30 Stoneledge Road, Newville, PA 17241, Newville, PA 17241, which is in close proximity to where Defendant Carlisle frequently land applies sewage sludge on property owned by Defendant Fahnestock. 177. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions 46 from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Bivens /Tosten's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Bivens /Tosten have thereby been damaged. 178. Plaintiffs Bivens /Tosten have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; birthdays, gatherings, breathing; and walking. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. Further, Plaintiffs Bivens /Tosten are often forced to keep their windows closed and to stay inside to avoid the odors. 179. Defendant Carlisle, through the care, custody, or control of real property in its custody and /or control, has frequently caused the above conditions and resulting injuries to Plaintiffs Bivens /Tosten, Plaintiffs Bivens /Tosten's property, and associated right to use and quiet enjoyment of property. 180. Upon reasonable belief, Defendant Carlisle knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Bivens /Tosten's property and cause such damages. 47 a ' 181. Defendant Carlisle knew or should have known that its conduct described herein had and has a substantial likelihood of causing significant injury to Plaintiffs Bivens /Tosten, Plaintiffs Bivens /Tosten's property rights, Plaintiffs Bivens /Tosten's quality of life, and Plaintiffs Bivens /Tosten's use and quiet enjoyment of their property. 182. Defendant Carlisle knew or should have known that technologies, methods, or other steps are reasonably and readily available to abate the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge applications on Defendant Fahnestock's property, but failed to take reasonable steps to abate same. 183. Defendant Carlisle' care, custody, and control of the land upon which it spreads the sewage sludge at issue, including Defendant Carlisle's frequent improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 184. Defendant Carlisle is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Bivens /Tosten by its acts and /or omissions in the storage and land application of the sewage sludge and its failure to abate such temporary nuisance. 185. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Bivens /Tosten had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Bivens /Tosten have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the 48 odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 186. Defendant Carlisle's conduct described above constitutes a series of repeated, frequent,, and abatable private temporary nuisances, which Defendant Carlisle has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 187. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Bivens /Tosten's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Carl Bivens and Joan Tosten hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Carl Bivens and Joan Tosten for all injuries caused by 49 Defendant Carlisle's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. COUNT 14 - PLAINTIFFS CARL BIVENS AND JOAN TOSTEN AGAINST DEFENDANT BOROUGH OF CARLISLE (CONTINUING NEGLIGENCE) 188. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 189. At all times relevant herein, Defendant Carlisle had the following continuing legal duties to use reasonable care in the care, custody, and control of the real property in its possession, including the fields owned by Defendant Fahnestock on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiffs Bivens /Tosten, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 50 190. Upon reasonable belief, Defendant Carlisle, or its agents or employees, have frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Bivens /Tosten and their property. 191. These frequent breaches of duties of care by Defendant Carlisle have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiffs Bivens /Tosten and their property. 192. Defendant Carlisle's method of land applying the sewage sludge, which does not control odors, pathogens, and other air and surface emissions, does not reflect the use of reasonable care by Defendant Carlisle. 193. Defendant Carlisle knew or should have known that its improper care, custody, and control of Defendant Fahnestock's property, especially in relation to its improper application of sewage sludge, would result in a foreseeable risk of and actual injury to Plaintiffs Bivens /Tosten and their property. 194. Upon reasonable belief, Defendant Carlisle knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Bivens /Tosten and their property, but failed to do SO. 195. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Bivens /Tosten's rights, thereby justifying an award of punitive damages against Defendant Carlisle. 51 WHEREFORE, Plaintiffs Carl Bivens and Joan Tosten hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Carl Bivens and Joan Tosten for all injuries caused by Defendant Carlisle's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. COUNT 15 - PLAINTIFFS CARL BIVENS AND JOAN TOSTEN AGAINST DEFENDANT TIM FAHNESTOCK (TEMPORARY NUISANCE AND FAILURE TO ABATE) 196. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 197. Defendant Fahnestock, owns the property located at 3633 Ritner Highway, Newville, PA 17241. 198. Upon reasonable belief, in or around August of 2012, Defendant Fahnestock and Defendant Carlisle began planning to agree to allow Defendant Carlisle to spread large quantities of sewage sludge on property owned by Defendant Fahnestock. 199. On or about October 11, 2012, after seeing a sign in a Fahnestock field on or about August 20 or August 21, 2012, Plaintiff Gale Mellinger on behalf of the group "Against Biosolid Contamination" filed a Notice of Appeal to the Commonwealth of Pennsylvania EHB (EHB Docket No. 2012 - 163 -M) alleging that improper notice was given, that the land 52 proposed for land application was within a watershed, and that same was too close to Big Spring Creek. 200. Thereafter, several hearings were held before the EHB and were attended in person or by phone by representatives of Defendant Carlisle and Defendant Fahnestock himself. 201. As such, prior to the filing of the Notice of Intent to Spread, the first spreading event and the filing of this lawsuit, Defendant Fahnestock had long been aware of the objections of neighbors to the spreading of sewage sludge on the Fahnestock property. 202. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Bivens /Tosten's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Bivens /Tosten have thereby been damaged. 203. Plaintiffs Bivens /Tosten have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; birthdays, gatherings, breathing; and walking. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. 53 Further, Plaintiffs Bivens /Tosten are often forced to keep their windows closed and to stay inside to avoid the odors. 204. Defendant Fahnestock, through his agreements with Defendant Carlisle to allow Defendant Carlisle to spread large amounts of sewage sludge on his property, caused or contributed to cause the above conditions and resulting injuries to Plaintiffs Bivens /Tosten, Plaintiffs Bivens /Tosten's property, and associated right to use and quiet enjoyment of property. 205. Upon reasonable belief, Defendant Fahnestock knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Bivens /Tosten's property and cause such damages. 206. While knowing that Defendant Carlisle's proposed activities would and do foreseeably injure Plaintiffs Bivens /Tosten, Defendant Fahnestock allowed and continues to allow Defendant Carlisle to cause offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property to encroach onto Plaintiffs Bivens /Tosten's property. 207. Defendant Fahnestock's disregard of Plaintiffs Bivens /Tosten's property and property rights, and acquiescence in Defendant Carlisle's improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 208. As a result, Defendant Fahnestock is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Bivens /Tosten by 54 his acts and /or omissions in entrusting Defendant Carlisle with the storage and land application of the sewer sludge onto his own property and his failure to abate such temporary nuisance. 209. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Bivens /Tosten had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Bivens /Tosten have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 210. Defendant Fahnestock's conduct and /or acquiescence in Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Fahnestock has negligently, recklessly, 55 intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 211. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Bivens /Tosten's rights, thereby justifying an award of punitive damages against Defendant Fahnestock. WHEREFORE, Plaintiffs Carl Bivens and Joan Tosten hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Carl Bivens and Joan Tosten for all injuries caused by Defendant Fahnestock's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 16 - PLAINTIFFS CARL BIVENS AND JOAN TOSTEN AGAINST DEFENDANT TIM FAHNESTOCK (CONTINUING NEGLIGENCE) 212. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 213. At all times relevant herein, Defendant Fahnestock had continuing legal duties to use reasonable care in the ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: 56 a. Duty to not harm neighbors, including Plaintiffs Bivens /Tosten, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 214. Upon reasonable belief, Defendant Fahnestock has frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Bivens /Tosten and their property. 215. These frequent breaches of duties of care by Defendant Fahnestock have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiffs Bivens /Tosten and their property. 216. Defendant Fahnestock knowingly allowed and continues to allow Defendant Carlisle to use his property in a way which causes substantial injuries to Plaintiffs 57 Bivens /Tosten, Plaintiffs Bivens /Tosten's property, and Plaintiffs Bivens /Tosten's property rights, thereby breaching Defendant Fahnestock's own duties of care identified above. 217. Defendant Fahnestock's ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case does not reflect the use of reasonable care by Defendant Fahnestock. 218. Defendant Fahnestock knew or should have known that his ownership, use, and maintenance of his property, including his fields on which he allows Defendant Carlisle to apply the sewage sludge at issue in this case would result in a foreseeable risk of actual injury to Plaintiffs Bivens /Tosten and their property. 219. Upon. reasonable belief, Defendant Fahnestock knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Bivens /Tosten and their property, but failed to do so. 220. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Bivens /Tosten's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Carl Bivens and Joan Tosten hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Carl Bivens and Joan Tosten for all injuries caused by 58 Defendant Fahnestock's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 17 - PLAINTIFF MARIAN HOCKER AGAINST DEFENDANT BOROUGH OF CARLISLE (TEMPORARY NUISANCE AND FAILURE TO ABATE) 221. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 222. Plaintiff Marian Hocker has and /or had possessory rights to her property located at 138 Log Cabin Road, Newville, PA 17241, Newville, PA 17241, which is in close proximity to where Defendant Carlisle frequently land applies sewage sludge on property owned by Defendant Fahnestock. 223. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiff Hocker's property and thus have substantially and frequently impaired her quality of life, her right to the use and quiet enjoyment of her property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiff Hocker has thereby been damaged. 59 224. Plaintiff Hocker has had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; gardening; walking, and sitting on her porch. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. Plaintiff Hocker moved to this community in 1996 intending to spend the rest of her life there. Prior to Defendants' activities, she was able to walk any time of day, garden, and sit on her porch. Every time the sewage sludge is spread, Plaintiff Hocker is forced to go indoors. Plaintiff Hocker is very concerned that Defendants' sewage sludge will get into her water supply due to the abundance of sinkholes and that same will damage her geothermal heating and cooling system. On occasion, the odors will be so bad that it will get into her home, even with the windows closed. Further, Plaintiff Hocker is often forced to keep her windows closed and to stay inside to avoid the odors. 225. Defendant Carlisle, through the care, custody, or control of real property in its custody and /or control, has frequently caused the above conditions and resulting injuries to Plaintiff Hocker, Plaintiff Hocker's property, and associated right to use and quiet enjoyment of property. 226. Upon reasonable belief, Defendant Carlisle knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Plaintiff Hocker's property and cause such damages. 227. Defendant Carlisle knew or should have known that its conduct described herein had and has a substantial likelihood of causing significant injury to Plaintiff Hocker, 60 Plaintiff Hocker's property rights, Plaintiff Hocker's quality of life, and Plaintiff Hocker's use and quiet enjoyment of her property. 228. Defendant Carlisle knew or should have known that technologies, methods, or other steps are reasonably and readily available to abate the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge applications on Defendant Fahnestock's property, but failed to take reasonable steps to abate same. 229. Defendant Carlisle' care, custody, and control of the land upon which it spreads the sewage sludge at issue, including Defendant Carlisle's frequent improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 230. Defendant Carlisle is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiff Hocker by its acts and /or omissions in the storage and land application of the sewage sludge and its failure to abate such temporary nuisance. 231. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiff Hocker had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiff Hocker has been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the 61 subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 232. Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Carlisle has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 233. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiff Hocker's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiff Marian Hocker hereby seeks all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiff Marian Hocker for all injuries caused by Defendant Carlisle's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described 62 conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. COUNT 18 - PLAINTIFF MARIAN HOCKER AGAINST DEFENDANT BOROUGH OF CARLISLE (CONTINUING NEGLIGENCE) 234. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 235. At all times relevant herein, Defendant Carlisle had the following continuing legal duties to use reasonable care in the care, custody, and control of the real property in its possession, including the fields owned by Defendant Fahnestock on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiff Hocker, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 236. Upon reasonable belief, Defendant Carlisle, or its agents or employees, have frequently and repeatedly breached some or all of these duties, or were otherwise 63 negligent, through its frequent and repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiff Hocker and her property. 237. These frequent breaches of duties of care by Defendant Carlisle have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiff Hocker and her property. 238. Defendant Carlisle's method of land applying the sewage sludge, which does not control odors, pathogens, and other air and surface emissions, does not reflect the use of reasonable care by Defendant Carlisle. 239. Defendant Carlisle knew or should have known that its improper care, custody, and control of Defendant Fahnestock's property, especially in relation to its improper application of sewage sludge, would result in a foreseeable risk of and actual injury to Plaintiff Hocker and herproperty. 240. Upon reasonable belief, Defendant Carlisle knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiff Hocker and her property, but failed to do so. 241. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiff Hocker's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiff Marian Hocker hereby seeks all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which 64 sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiff Hocker for all injuries caused by Defendant Carlisle's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. COUNT 19 - PLAINTIFF MARIAN HOCKER AGAINST DEFENDANT TIM FAHNESTOCK (TEMPORARY NUISANCE AND. FAILURE TO ABATE) 242. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 243. Defendant Fahnestock, owns the property located at 3633 Ritner Highway, Newville, PA 17241. 244. Upon reasonable belief, in or around August of 2012, Defendant Fahnestock and Defendant Carlisle began planning to agree to allow Defendant Carlisle to spread large quantities of sewage sludge on property owned by Defendant Fahnestock. 245. On or about October 11, 2012, after seeing a sign in a Fahnestock field on or about August 20 or August 21, 2012, Plaintiff Gale Mellinger on behalf of the group "Against Biosolid Contamination" filed a Notice of Appeal to the Commonwealth of Pennsylvania EHB (EHB Docket No. 2012 - 163 -M) alleging that improper notice was given, that the land proposed for land application was within a watershed, and that same was too close to Big Spring Creek. 65 246. Thereafter, several hearings were held before the EHB and were attended in person or by phone by representatives of Defendant Carlisle and Defendant Fahnestock himself. 247. As such, prior to the filing of the Notice of Intent to Spread, the first spreading event and the filing of this lawsuit, Defendant Fahnestock had long been aware of the objections of neighbors to the spreading of sewage sludge on the Fahnestock property. 248. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiff Hocker's property and thus have substantially and frequently impaired her quality of life, her right to the use and quiet enjoyment of her property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiff Hocker has thereby been damaged. 249. Plaintiff Hocker has had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; gardening; walking, and sitting on her porch. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. Plaintiff Hocker moved to this community in 1996 intending to spend the rest of her life there. Prior to Defendants' activities, she was able to walk any time of day, garden, and sit on her porch. Every time the sewage sludge is spread, Plaintiff Hocker is forced to go 66 indoors. Plaintiff Hocker is very concerned that Defendants' sewage sludge will get into her water supply due to the abundance of sinkholes and that same will damage her geothermal heating and cooling system. On occasion, the odors will be so bad that it will get into her home, even with the windows closed. Further, Plaintiff Hocker is often forced to keep her windows closed and to stay inside to avoid the odors. 250. Defendant Fahnestock, through his agreements with Defendant Carlisle to allow Defendant Carlisle to spread large amounts of sewage sludge on his property, caused or contributed to cause the above conditions and resulting injuries to Plaintiff Hocker, Plaintiff Hocker's property, and associated right to use and quiet enjoyment of property. 251. Upon reasonable belief, Defendant Fahnestock knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiff Hocker's property and cause such damages. 252. While knowing that Defendant Carlisle's proposed activities would and do foreseeably injure Plaintiff Hocker, Defendant Fahnestock allowed and continues to allow Defendant Carlisle to cause offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property to encroach onto Plaintiff Hocker's property. 253. Defendant Fahnestock's disregard of Plaintiffs Plaintiff Hocker's property and property rights, and acquiescence in Defendant Carlisle's improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 67 254. As a result, Defendant Fahnestock is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiff Hocker by his acts and /or omissions in entrusting Defendant Carlisle with the storage and land application of the sewer sludge onto his own property and his failure to abate such temporary nuisance. 255. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiff Hocker had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiff Hocker has been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 256. Defendant Fahnestock's conduct and /or acquiescence in Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private 68 temporary nuisances, which Defendant Fahnestock has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 257. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiff Hocker's rights, thereby justifying an award of punitive damages against Defendant Fahnestock. WHEREFORE, Plaintiff Marian Hocker hereby seeks all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiff Marian Hocker for all injuries caused by Defendant Fahnestock's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 20 - PLAINTIFF MARIAN HOCKER AGAINST DEFENDANT TIM FAHNESTOCK (CONTINUING NEGLIGENCE) 258. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 259. At all times relevant herein, Defendant Fahnestock had continuing legal duties to use reasonable care in the ownership, use, and maintenance of his property, 69 including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiff Hocker, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 260. Upon reasonable belief, Defendant Fahnestock has frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiff Hocker and her property. 261. These frequent breaches of duties of care by Defendant Fahnestock have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiff Hocker and her property. 70 262. Defendant Fahnestock knowingly allowed and continues to allow Defendant Carlisle to use his property in a way which causes substantial injuries to Plaintiff Hocker, Plaintiff Hocker's property, and Plaintiff Hocker's property rights, thereby breaching Defendant Fahnestock's own duties of care identified above. 263. Defendant Fahnestock's ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case does not reflect the use of reasonable care by Defendant Fahnestock. 264. Defendant Fahnestock knew or should have known that his ownership, use, and maintenance of his property, including his fields on which he allows Defendant Carlisle to apply the sewage sludge at issue in this case would result in a foreseeable risk of actual injury to Plaintiff Hocker and her property. 265. Upon reasonable belief, Defendant Fahnestock knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiff Hocker and her property, but failed to do SO. 266. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiff Hocker's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiff Hocker hereby seeks all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of 71 the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiff Hocker for all injuries caused by Defendant Fahnestock's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 21- PLAINTIFFS WAYNE SWEGER AND DEBORAH SWEGER AGAINST DEFENDANT BOROUGH OF CARLISLE (TEMPORARY NUISANCE AND FAILURE TO ABATE) 267. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 268. Plaintiffs Wayne and Deborah Sweger have and /or had possessory rights to their property located at 8 Lexington Dr., Newville, PA 17241, Newville, PA 17241, which is in close proximity to where Defendant Carlisle frequently land applies sewage sludge on property owned by Defendant Fahnestock. 269. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Sweger's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air 72 quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Sweger have thereby been damaged. 270. Plaintiffs Sweger have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; family picnics; hanging clothes out to dry; doing yard work; and walking. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. Further, Plaintiffs Sweger are often forced to keep their windows closed and to stay inside to avoid the odors. 271. Defendant Carlisle, through the care, custody, or control of real property in its custody and /or control, has frequently caused the above conditions and resulting injuries to Plaintiffs Sweger, Plaintiffs Sweger's property, and associated right to use and quiet enjoyment of property. 272. Upon reasonable belief, Defendant Carlisle knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Sweger's property and cause such damages. 273. Defendant Carlisle knew or should have known that its conduct described herein had and has a substantial likelihood of causing significant injury to Plaintiffs Sweger, Plaintiffs Sweger's property rights, Plaintiffs Sweger's quality of life, and Plaintiffs Sweger's use and quiet enjoyment of their property. 274. Defendant Carlisle knew or should have known that technologies, methods, or other steps are reasonably and readily available to abate the offensive and noxious 73 � r odors, pathogens, and other air and surface emissions from the sewage sludge applications on Defendant Fahnestock's property, but failed to take reasonable steps to abate same. 275. Defendant Carlisle' care, custody, and control of the land upon which it spreads the sewage sludge at issue, including Defendant Carlisle's frequent improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 276. Defendant Carlisle is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Sweger by its acts and /or omissions in the storage and land application of the sewage sludge and its failure to abate such temporary nuisance. 277. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Sweger had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Sweger have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of 74 sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 278. Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Carlisle has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 279. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Sweger's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Wayne and Deborah Sweger hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Wayne and Deborah Sweger for all injuries caused by Defendant Carlisle's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. 75 COUNT 22 - PLAINTIFFS WAYNE SWEGER AND DEBORAH SWEGER AGAINST DEFENDANT BOROUGH OF CARLISLE (CONTINUING NEGLIGENCE) 280. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 281. At all times relevant herein, Defendant Carlisle had the following continuing legal duties to use reasonable care in the care, custody, and control of the real property in its possession, including the fields owned by Defendant Fahnestock on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiffs Sweger, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 282. Upon reasonable belief, Defendant Carlisle, or its agents or employees, have frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real 76 property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Sweger and their property. 283. These frequent breaches of duties of care by Defendant Carlisle have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiffs Sweger and their property. 284. Defendant Carlisle's method of land applying the sewage sludge, which does not control odors, 'pathogens, and other air and surface emissions, does not reflect the use of reasonable care by Defendant Carlisle. 285. Defendant Carlisle knew or should have known that its improper care, custody, and control of Defendant Fahnestock's property, especially in relation to its improper application of sewage sludge, would result in a foreseeable risk of and actual injury to Plaintiffs Sweger and their property. 286. Upon reasonable belief, Defendant Carlisle knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks 'or injuries to Plaintiffs Sweger and their property, but failed to do so. 287. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Sweger's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Wayne and Deborah Sweger hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under 77 the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Wayne and Deborah Sweger for all injuries caused by Defendant Carlisle's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. COUNT 23 - PLAINTIFFS WAYNE SWEGER AND DEBORAH SWEGER AGAINST DEFENDANT TIM FAHNESTOCK (TEMPORARY NUISANCE AND FAILURE TO ABAT - E 288. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 289. Defendant Fahnestock, owns the property located at 3633 Ritner Highway, Newville, PA 17241. 290. Upon reasonable belief, in or around August of 2012, Defendant Fahnestock and Defendant Carlisle began planning to agree to allow Defendant Carlisle to spread large quantities of sewage sludge on property owned by Defendant Fahnestock. 291. On or about October 11, 2012, after seeing a sign in a Fahnestock field on or about August 20 or August 21, 2012, Plaintiff Gale Mellinger on behalf of the group "Against Biosolid Contamination" filed a Notice of Appeal to the Commonwealth of Pennsylvania EHB (EHB Docket No. 2012- 163 -M) alleging that improper notice was given, that the land , proposed for land application was within a watershed, and that same was too close to Big Spring Creek. 78 292. Thereafter, several hearings were held before the EHB and were attended in person or by phone by representatives of Defendant Carlisle and Defendant Fahnestock himself. 293. As such, prior to the filing of the Notice of Intent to Spread, the first spreading event and the filing of this lawsuit, Defendant Fahnestock had long been aware of the objections of neighbors to the spreading of sewage sludge on the Fahnestock property. 294. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Sweger's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Sweger have thereby been damaged. 295. Plaintiffs Sweger have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; family picnics; hanging clothes out to dry; doing yard work; and walking. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. Further, Plaintiffs Sweger are often forced to keep their windows closed and to stay inside to avoid the odors. 79 296. Defendant Fahnestock, through his agreements with Defendant Carlisle to allow Defendant Carlisle to spread large amounts of sewage sludge on his property, caused or contributed to cause the above conditions and resulting injuries to Plaintiffs Sweger, Plaintiffs Sweger's property, and associated right to use and quiet enjoyment of property. 297. Upon reasonable belief, Defendant Fahnestock knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Sweger's property and cause such damages. 298. While knowing that Defendant Carlisle's proposed activities would and do foreseeably injure Plaintiffs Sweger, Defendant Fahnestock allowed and continues to allow Defendant Carlisle to cause. offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property to encroach onto Plaintiffs Sweger's property. 299. Defendant Fahnestock's disregard of Plaintiffs Sweger's property and property rights, and acquiescence in Defendant Carlisle's improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 300. As a result, Defendant Fahnestock is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Sweger by his acts and /or omissions in entrusting Defendant Carlisle with the storage and land application of the sewer sludge onto his own property and his failure to abate such temporary nuisance. 80 301. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Sweger had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Sweger have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 302. Defendant Fahnestock's conduct and /or acquiescence in Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Fahnestock has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 81 303. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Sweger's rights, thereby justifying an award of punitive damages against Defendant Fahnestock. WHEREFORE, Plaintiffs Wayne and Deborah Sweger hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Wayne and Deborah Sweger for all injuries caused by Defendant Fahnestock's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 24 - PLAINTIFFS WAYNE SWEGER AND DEBORAH SWEGER AGAINST DEFENDANT TIM FAHNESTOCK (CONTINUING NEGLIGENCE) 304. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 305. At all times relevant herein, Defendant Fahnestock had continuing legal duties to use reasonable care in the ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: 82 e a. Duty to not harm neighbors, including Plaintiffs Sweger, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 306. Upon reasonable belief, Defendant Fahnestock has frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Sweger and their property. 307. These frequent breaches of duties of care by Defendant Fahnestock have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiffs Sweger and their property. 308. Defendant Fahnestock knowingly allowed and continues to allow Defendant Carlisle to use his property in a way which causes substantial injuries to Plaintiffs Sweger, 83 5 Plaintiffs Sweger's property, and Plaintiffs Sweger's property rights, thereby breaching Defendant Fahnestock's own duties of care identified above. 309. Defendant Fahnestock's ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case does not reflect the use of reasonable care by Defendant Fahnestock. 310. Defendant Fahnestock knew or should have known that his ownership, use, and maintenance of his property, including his fields on which he allows Defendant Carlisle to apply the sewage sludge at issue in this case would result in a foreseeable risk of actual injury to Plaintiffs Sweger and their property. 311. Upon reasonable belief, Defendant Fahnestock knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Sweger and their property, but failed to do so. 312. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Sweger's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Wayne and Deborah Sweger hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Wayne and Deborah Sweger for all injuries caused by 84 . N Defendant Fahnestock's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 25 - PLAINTIFFS MATTHEW ROBINSON, SHANNON ROBINSON, AND COURTNEY HEINBAUGH A MINOR BY AND THROUGH HER MOTHER, SHANNON ROBINSON AGAINST DEFENDANT BOROUGH OF CARLISLE (TEMPORARY NUISANCE AND FAILURE TO ABATEI 313. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 314. Plaintiffs Robinson have and /or had possessory rights to their property located at 128 Springfield Rd., Newville, PA 17241, Newville, PA 17241, which is in close proximity to where Defendant Carlisle frequently land applies sewage sludge on property owned by Defendant Fahnestock. 315. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Robinson's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Robinson have thereby been damaged. 85 F 316. Plaintiffs Robinson have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; walking; and spending time on their porch. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. Further, Plaintiffs Robinson are often forced to keep their windows closed and to stay inside to avoid the odors. 317. Defendant Carlisle, through the care, custody, or control of real property in its custody and /or control, has frequently caused the above conditions and resulting injuries to Plaintiffs Robinson, Plaintiffs Robinson's property, and associated right to use and quiet enjoyment of property. 318. Upon reasonable belief, Defendant Carlisle knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Robinson's property and cause such damages. 319. Defendant Carlisle knew or should have known that its conduct described herein had and has a substantial likelihood of causing significant injury to Plaintiffs Robinson, Plaintiffs Robinson's property rights, Plaintiffs Robinson's quality of life, and Plaintiffs Robinson's use and quiet enjoyment of their property. 320. Defendant Carlisle knew or should have known that technologies, methods, or other steps are reasonably and readily available to abate the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge applications on Defendant Fahnestock's property, but failed to take reasonable steps to abate same. 86 321. Defendant Carlisle' care, custody, and control of the land upon which it spreads the sewage sludge at issue, including Defendant Carlisle's frequent improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 322. Defendant Carlisle is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Robinson by its acts and /or omissions in the storage and land application of the sewage sludge and its failure to abate such temporary nuisance. 323. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Robinson had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Robinson have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited 87 to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 324. Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Carlisle has negligently, recklessly, intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 325. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Robinson's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heimbaugh, a minor, by and through her mother, Shannon Robinson hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heimbaugh, a minor, by and through her mother, Shannon Robinson for all injuries caused by Defendant Carlisle's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. 88 COUNT 26 - PLAINTIFFS MATTHEW ROBINSON, SHANNON ROBINSON, AND COURTNEY HEINBAUGH A MINOR BY AND THROUGH HER MOTHER, SHANNON ROBINSON AGAINST DEFENDANT BOROUGH OF CARLISLE (CONTINUING NEGLIGENCE) 326. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 327. At all times relevant herein, Defendant Carlisle had the following continuing legal duties to use reasonable care in the care, custody, and control of the real property in its possession, including the fields owned by Defendant Fahnestock on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiffs Robinson, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 328. Upon reasonable belief, Defendant Carlisle, or its agents or employees, have frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real 89 property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Robinson and their property. 329. These frequent breaches of duties of care by Defendant Carlisle have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions which have adversely impacted Plaintiffs Robinson and their property. 330. Defendant Carlisle's method of land applying the sewage sludge, which does not control odors, pathogens, and other air and surface emissions, does not reflect the use of reasonable care by Defendant Carlisle. 331. Defendant Carlisle knew or should have known that its improper care, custody, and control of Defendant Fahnestock's property, especially in relation to its improper application of sewage sludge, would result in a foreseeable risk of and actual injury to Plaintiffs Robinson and their property. 332. Upon reasonable belief, Defendant Carlisle knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Robinson and their property, but failed to do so. 333. In addition, Defendant Carlisle's above described conduct was outrageous because it has consciously disregarded Plaintiffs Robinson's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heimbaugh, a minor, by and through her mother, Shannon Robinson hereby seek all damages allowed ; under the laws of the Commonwealth of Pennsylvania from Defendant Carlisle, jointly and severally with each other Defendant, in an amount in excess of 90 $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heimbaugh, a minor, by and through her mother, Shannon Robinson for all injuries caused by Defendant Carlisle's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such other relief as the Court deems just and appropriate. COUNT 27 - PLAINTIFFS MATTHEW ROBINSON, SHANNON ROBINSON, AND COURTNEY HEINBAUGH A MINOR BY AND THROUGH HER MOTHER, SHANNON ROBINSON AGAINST DEFENDANT TIM FAHNESTOCK . (TEMPORARY NUISANCE AND FAILURE TO ABATE) 334. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 335. Defendant Fahnestock, owns the property located at 3633 Ritner Highway, Newville, PA 17241. 336. Upon reasonable belief, in or around August of 2012, Defendant Fahnestock and Defendant Carlisle began planning to agree to allow Defendant Carlisle to spread large quantities of sewage sludge on property owned by Defendant Fahnestock. 337. On or about October 11, 2012, after seeing a sign in a Fahnestock field on or about August 20 or August 21, 2012, Plaintiff Gale Mellinger on behalf of the group "Against Biosolid Contamination" filed a Notice of Appeal to the Commonwealth of Pennsylvania EHB (EHB Docket No. 2012 - 163 -M) alleging that improper notice was given, that the land 91 proposed for land application was within a watershed, and that same was too close to Big Spring Creek. 338. Thereafter, several hearings were held before the EHB and were attended in person or by phone by representatives of Defendant Carlisle and Defendant Fahnestock himself. 339. As such, prior to the filing of the Notice of Intent to Spread, the first spreading event and the filing of this lawsuit, Defendant Fahnestock had long been aware of the objections of neighbors to the spreading of sewage sludge on the Fahnestock property. 340. Upon reasonable belief, from approximately May 13, 2013 and frequently thereafter, offensive and noxious odors, pathogens, and other surface and air emissions from the sewage sludge that is frequently land applied by Defendant Carlisle have frequently escaped and continue to escape from Defendant Fahnestock's land application fields onto Plaintiffs Robinson's property and thus have substantially and frequently impaired their quality of life, their right to the use and quiet enjoyment of their property, including but not limited to causing substantial anger, embarrassment, discomfort, annoyance, inconvenience, stress, distress; offense to the senses, health concerns, air quality concerns, water quality concerns, and decreased quality of life, and Plaintiffs Robinson have thereby been damaged. 341. Plaintiffs Robinson have had nearly every activity frequently impaired by Defendants' activities, including but not limited to the following: all outdoor activities; walking; and spending time on their porch. Further, the unpredictability of the timing of the spreading of sewage waste and the odors make it very difficult to plan activities. 92 Further, Plaintiffs Robinson are often forced to keep their windows closed and to stay inside to avoid the odors. 342. Defendant Fahnestock, through his agreements with Defendant Carlisle to allow Defendant Carlisle to spread large amounts of sewage sludge on his property, caused or contributed to cause the above conditions and resulting injuries to Plaintiffs Robinson, Plaintiffs Robinson's property, and associated right to use and quiet enjoyment of property. 343. Upon reasonable belief, Defendant Fahnestock knew or should have known that the offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property in a designated watershed with several sinkholes would frequently encroach upon Plaintiffs Robinson's property and cause such damages. 344. While knowing that Defendant Carlisle's proposed activities would and do foreseeably injure Plaintiffs Robinson, Defendant Fahnestock allowed and continues to allow Defendant Carlisle to cause offensive and noxious odors, pathogens, and other air and surface emissions from the sewage sludge land applied by Defendant Carlisle on Defendant Fahnestock's property to encroach onto Plaintiffs Robinson's property. 345. Defendant Fahnestock's disregard of Plaintiffs Robinson's property and property rights, and acquiescence in Defendant Carlisle's improper and negligent land application of the sewage sludge, has been and continues to be unreasonable, unusual, abnormal, and unnatural. 346. As a result, Defendant Fahnestock is liable, jointly and severally with each and all other Defendants, for all of the damages and injuries to Plaintiffs Robinson by his acts and /or omissions in entrusting Defendant Carlisle with the storage and land 93 application of the sewer sludge onto his own property and his failure to abate such temporary nuisance. 347. Upon information and belief, sewage sludge had never been applied to the Fahnestock property or in the vicinity of Plaintiffs' properties prior to May 13, 2013. Further, prior to May 13, 2013, Plaintiffs Robinson had never experienced any type of odors or emissions even remotely close to the quality, quantity, magnitude, and offensiveness of that produced by Defendants' subsequent sewage sludge spreading activities for as long as Plaintiffs Robinson have been inhabiting and recreating in the vicinity. The subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom have not existed substantially unchanged since the Fahnestock farm began operation. Instead, the subsequent frequent application of large amounts of sewage sludge and the odorous and other oppressive nuisance conditions and circumstances arising therefrom constitute significant and substantial changes to the Fahnestock property and surrounding area that had never existed before May 13, 2013. Moreover, the application of large amounts of sewage sludge in no way constitutes normal agricultural operations, especially considering that some of the constituents of the sewage sludge include, but are not limited to, industrial wastes, medical wastes, pathogens, heavy metals, and other substances that have no place in normal agriculture nor any fertilizer value. 348. Defendant Fahnestock's conduct and /or acquiescence in Defendant Carlisle's conduct described above constitutes a series of repeated, frequent, and abatable private temporary nuisances, which Defendant Fahnestock has negligently, recklessly, 94 intentionally, or willfully failed and /or refused to remedy within a reasonable period of time. 349. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Robinson's rights, thereby justifying an award of punitive damages against Defendant Fahnestock. WHEREFORE, Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heimbaugh, a minor, by and through her mother, Shannon Robinson hereby seek all damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heimbaugh, a minor, by and through her mother, Shannon Robinson for all injuries caused by Defendant Fahnestock's acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. COUNT 28 - PLAINTIFFS MATTHEW ROBINSON, SHANNON ROBINSON, AND COURTNEY HEINBAUGH A MINOR BY AND THROUGH HER MOTHER, SHANNON ROBINSON AGAINST DEFENDANT TIM FAHNESTOCK (CONTINUING NEGLIGENCE) 350. Plaintiffs incorporate by reference allegations set forth in the above and foregoing paragraphs, as if fully set forth herein. 95 351. At all times relevant herein, Defendant Fahnestock had continuing legal duties to use reasonable care in the ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case: a. Duty to not harm neighbors, including Plaintiffs Robinson, through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions; b. Duty to not allow emissions of malodourous air contaminants to invade other properties; c. Duty to not adversely affect private water supplies; d. Duty to not cause a public nuisance; e. Duty to spread the sewage sludge at agronomic rates; f. Duty to comply with all setback provisions; and g. Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code. 352. Upon reasonable belief, Defendant Fahnestock has frequently and repeatedly breached some or all of these duties, or were otherwise negligent, through its frequent and repeated improper care, custody, and control of real property in its control, in the spreading of sewage sludge, thereby proximately resulting in frequent harms, damages, and losses to Plaintiffs Robinson and their property. 353. These frequent breaches of duties of care by Defendant Fahnestock have proximately resulted in the frequent discharges of offensive and noxious odors, pathogens, 96 and other air and surface emissions which have adversely impacted Plaintiffs Robinson and their property. 354. Defendant Fahnestock knowingly allowed and continues to allow Defendant Carlisle to use his property in a way which causes substantial injuries to Plaintiffs Robinson, Plaintiffs Robinson's property, and Plaintiffs Robinson's property rights, thereby breaching Defendant Fahnestock's own duties of care identified above. 355. Defendant Fahnestock's ownership, use, and maintenance of his property, including his fields on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case does not reflect the use of reasonable care by Defendant Fahnestock. 356. Defendant Fahnestock knew or should have known that his ownership, use, and maintenance of his property, including his fields on which he allows Defendant Carlisle to apply the sewage sludge at issue in this case would result in a foreseeable risk of actual injury to Plaintiffs Robinson and their property. 357. Upon reasonable belief, Defendant Fahnestock knew or should have known that reasonable steps could have been taken, or technologies and methods employed to protect against such risks or injuries to Plaintiffs Robinson and their property, but failed to do so. 358. In addition, Defendant Fahnestock's above described conduct was outrageous because he has consciously disregarded Plaintiffs Robinson's rights, thereby justifying an award of punitive damages against Defendant Carlisle. WHEREFORE, Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heimbaugh, a minor, by and through her mother, Shannon Robinson hereby seek all 97 damages allowed under the laws of the Commonwealth of Pennsylvania from Defendant Fahnestock, jointly and severally with each other Defendant, in an amount in excess of $50,000.00 plus costs of suit, which sum is in excess of the amount requiring compulsory arbitration under the applicable statutes of the Commonwealth of Pennsylvania and the local rules of this Court to compensate Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heimbaugh, a minor, by and through her mother, Shannon Robinson for all injuries caused by Defendant Fahnestock's negligent and reckless acts and omissions, for punitive damages to be determined at trial in an amount set by law or the trier of fact sufficient to punish Defendants, jointly and severally, for the above described conduct and to deter others from like conduct, and for such relief as the Court deems just and appropriate. Plaintiffs hereby demand a jury trial on all matters. i 98 Respectfully s bmitted, 4 By Peter B. Bieri (PA #314960) Speer Law Firm, PA 104 West 9th Street, Suite 400 Kansas City, Missouri 64105 Tel: (816) 472 -3560 Fax: (816) 421 -2150 bbieri @speerlawfirm.com Edward Ciarimboli (PA #85904) Fellerman & Ciarimboli 183 Market Street Suite 200 Kingston, PA 18704 318 Penn Ave, Suite 2 Scranton, PA 18503 Telephone: 570 - 714 -4878 Fax: 570 - 714 -7255 Attorneys for Plaintiffs 99 04/10/2014 05:27 -1 PAGE 02 Y IN THE COURT OF COM N P EA5 CUMBERLAND COUNTY, PE N VANIA RICHARD MELLINGER; ) GALE MELLINGER; ) MICHAEL YOUNG; ) MEGAN YOUNG; ) LESLIE MEACOCK; ) SHARON MEACOCK; ) CART. GIVENS; ) JOAN TOSTEN; ) Case No. MARIAN ROCKER; ) H. WAYNE SWEGER; ) . JURY TRIAL DEMANDED DEBORAH SWEGER; ) MATTHEW ROBINSON; ) SHANNON ROBINSON; and ) COURTNEY HEINBAUGH, a minor, ) by and through her mother, ) SHANNON ROBINSON; ) PLAINTIFFS, ) V. ) . BOROUGH OF CARLISLE, PENNSYLVANIA ) A /K /A CARLISLE BOROUGH MUNICIPAL AUTHORITY; ) and ) TIM FAHNESTOCK; ) DEFENDANTS. ) VEIUFICATI 1, Richard M. Mellinger, submit the following v ific ion subject to the penalties of 18 Pa.C.S. § 4904. 1. My name is Richard M. Mellinger and 1 0 j�r eighteen years of age. 2. 1 am a plaintiff in the above - captioned c e, s led Richard Mellinger, et al. v. Borough of Carlisle, PA. et al, and 1 am familiar with co tents of Plaintiffs' Complaint. 3. The specific averments of fact contained n P1 ' tiffs' Complaint are true based upon my personal knowledge and/or information and b ief. 04/10/2014 05:27 -1 PAGE 03 T' achard M. Mellinger 2 04/10/2014 05:27 -1 PAGE 04 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD MELLINGER; ) GALE MELLINGER; ) MICHAEL YOUNG; ) MEGAN YOUNG; ) LESLIE'MEACOCK; ) SHARON MEACOCK; ) CART. BIVENS; ) JOAN TOSTEN; ) Case No. MARIAN ROCKER; ) H. WAYNE SWEGER; ) . JURY TRIAL DEMANDED DEBORAH SWEGER; ) MATTHEW ROBINSON; ) SHANNON ROBINSON; and ) COURTNEY HEINBAUGH, a minor, ) by and through her mother, ) SHANNON ROBINSON: ) PLAINTIFFS, ) V. ) BOROUGH OF CARLISLE, PENNSYLVANIA ) A /K /A CARLISLE BOROUGH MUNICIPAL AUTHORITY; ) ) and ) TIM FAHNESTOCK; ) DEFENDANTS. ) VERIFICATION 1, Gale Mellinger, submit the following verification subject to the penalties of 18 Pa.C.S. § 4904: 1. My name is Gale Mellinger and I am over eighteen years of age. 2. I am a plaintiff in the above - captioned case, styled Richard Mellinger, et al. v. Borough of Carlisle, Pal, et al, and I am familiar with the contents of Plaintiffs' Complaint. 3. The specific averments of fact contained in Plaintiffs' Complaint are true based upon my personal knowledge and/or information and belief 04/10/2014 05:27 -1 PAGE 05 2 Gale Mellinger Richard Mellinger; Gale Mellinger; Michael Young; Megan Young; Leslie Meacock; Sharon Meacock; Carl Bivens; Joan Tosten; : IN THE COURT OF COMMON PLEAS Marian Hocker; H. Wayne Sweger; Deborah : OF CUMBERLAND COUNTY Sweger; Matthew Robinson; and Courtney : PENNSYLVANIA Heinbaugh, a minor, by and through her mother, Shannon Robinson, Plaintiffs v. : NO. 14-2194 CIVIL Borough of Carlisle, Pennsylvania A/K/A Carlisle Borough Municipal Authority; and Tim Fahnestock, Defendants PRAECIPE FOR ENTRY OF APPEARANCE Dear Prothonotary: Kindly enter the appearance of Scott T. Wyland as counsel for Defendants in the above captioned matter. Date: May 7i , 2014 Respectfully submitted, Scott T`Wyla Supreme Court ID#52660 SALZMANN HUGHES, P.C. 105 N. Front Street, Suite 205 Harrisburg, PA 17101 717-234-6700 Richard Mellinger; Gale Mellinger; Michael Young; Megan Young; Leslie Meacock; Sharon Meacock; Carl Bivens; Joan Tosten; •▪ IN THE COURT OF COMMON PLEAS Marian Hocker; H. Wayne Sweger; Deborah •▪ OF CUMBERLAND COUNTY Sweger; Matthew Robinson; and Courtney •▪ PENNSYLVANIA Heinbaugh, a minor, by and through her mother, Shannon Robinson, Plaintiffs v. : NO. 14-2194 CIVIL Borough of Carlisle, Pennsylvania A/K/A Carlisle Borough Municipal Authority; and Tim Fahnestock, Defendants CERTIFICATE OF SERVICE I hereby certify that on the 2 ' day of May 2014, I served a true and correct copy of the foregoing Praecipe via United States mail, first class, postage prepaid, addressed as follows: Edward J. Ciarimboli, Esquire Fellerman & Ciarimboli 183 Market Street, Suite 200 Kingston, PA 18704 Peter B. Bieri, Esquire Speer Law Firm, PA 104 West 9th Street, Suite 400 Kansas City, MO 64105 Scott T. Wyp d Supreme Court ID#52660 SALZMANN HUGHES, P.C. 105 N. Front Street, Suite 205 Harrisburg, PA 17101 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart • Solicitor ©FFiCE SHERIFF'S OFFICE OF CUMBERLAND COUNTY J i tst PRoTi-ioNcriARY 2014114Y —7 tIM H.!-: 1 !' CUMBERLAND COUNTY PENNSYLVANIA Richard Mellinger vs. Tim H Fahnestock (et al.) Case Number 2014-2194 SHERIFF'S RETURN OF SERVICE 04/16/2014 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 Jubith Clark, Payroll Clerk, who accepted as "Adult Person in Charge" for Borough of Carlisle at do Tim Sco ' , Mayor, 53 West South Street, Carilsle, PA 17013. <il IL IAM CLINE, DEPUTY 04/23/2014 11:04 AM - Deputy Jason Kinsler, 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: Tim H Fahnestock at 3663 Ritner Highway, West Pennsboro, Newville, PA 17241. SHERIFF COST: $64.83 April 28, 2014 " (c) CountySuite Sheriff, Teleosoft, Inc. JA N K LER, DEPUTY SO ANSWERS, RONR ANDERSON, SHERIFF r BY: Scott T. Wyland Attorney I.D. No. 52660 E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney I.D. No. 311909 105 North Front Street, Suite 205 Harrisburg, PA 17101 Telephone: 717-234-6700 Fax 717-249-7334 Attorneys for Defendants r; - _ED -O ; ICL O TH PROTHONOTARY 201411AY 16 PH 12: 19 CUMBERLAND COUNTY PENNSYLVANIA Richard Mellinger; Gale Mellinger; Michael Young; Megan Young; Leslie Meacock; Sharon Meacock; Carl Bivens; Joan Tosten; Marian Hocker; H. Wayne Sweger; Deborah Sweger; Matthew Robinson; and Courtney Heinbaugh, a minor, by and through her mother, Shannon Robinson, Plaintiffs v. Borough of Carlisle, Pennsylvania A/K/A Carlisle Borough Municipal Authority; and Tim Fahnestock, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA : NO. 14-2194 CIVIL To: Peter B. Bieri, Esq. Speer Law Firm, PA 104 West 9th Street, Suite 400 Kansas City, MO 64105 Edward Ciarimboli, Esq. Fellerman & Ciarimboli 183 Market Street, Suite 200 Kingston, PA 18704 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days of the date of service hereof or a default judgment may be entered against you. By: SALZMANN HUGHES, P.C. Scott . Wyj,, Esquire Attorney I.D. o. 52660 105 North Front Street, Suite 205 Harrisburg, PA 17101 (717) 234-6700 Salzmann Hughes, P.C. BY: Scott T. Wyland Attorney I.D. No. 52660 E. Lee Stinnett 11 Attorney I.D. No. 307128 Isaac P. Wakefield Attorney I.D. No. 311909 105 North Front Street, Suite 205 Harrisburg, PA 17101 Telephone: 717-234-6700 Fax 717-249-7334 Attorneys for Defendants Richard Mellinger; Gale Mellinger; Michael Young; Megan Young; Leslie Meacock; Sharon Meacock; Carl Bivens; Joan Tosten; Marian locker; H. Wayne Sweger; Deborah Sweger; Matthew Robinson; and Courtney Heinbaugh, a minor, by and through her mother, Shannon Robinson, Plaintiffs v. Borough of Carlisle, Pennsylvania A/K/A Carlisle Borough Municipal Authority; and Tim Fahnestock, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY PENNSYLVANIA : NO. 14-2194 CIVIL DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Defendants Borough of Carlisle ("Carlisle") and Tim Fahnestock ("Fahnestock"), by and through their counsel, Salzmann Hughes, P.C., set forth the following preliminary objections to Plaintiff's Complaint: 1. Plaintiffs filed their Complaint in the above -captioned matter on April 11, 2014. 2. Plaintiffs' twenty-eight count Complaint alleges temporary nuisance and continuing negligence on the part of Defendants with respect to each of the named Plaintiffs. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNTS 1, 2, 5, 6, 9, 10, 13, 14, 17, 18, 21, 22, 25 AND 26 OF PLAINTIFFS' COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(4) 3. Defendant incorporates by reference the averments of paragraphs 1 through 2 as though the same were set forth fully at length herein. 4. Pursuant to Pa.R.C.P. 1028(a)(4), a party may preliminarily object to a pleading for legal insufficiency of a pleading (demurrer). 5. Plaintiffs' tort claims of temporary nuisance and continuing negligence against Defendant Carlisle are barred by the Political Subdivision Tort Claims Act, which provides local agencies with immunity from tort damages unless the claim falls within specific enumerated exceptions. See 42 Pa.C.S. § 8542(b). 6. As a government unit, Defendant Carlisle is a "local agency" to which the Political Subdivision Tort Claims Act's protections apply. See 42 Pa.C.S. § 8502. 7. Plaintiffs' Complaint fails to plead that any exception to Defendant Carlisle's immunity under the Political Subdivision Tort Claims Act applies. 8. Plaintiffs aver, however, that Defendant Carlisle had legal duties "to use reasonable care in the care, custody, and control of the real property in its possession, including the fields owned by Defendant Fahnestock on which Defendant Carlisle applied and continues to apply the sewage sludge at issue in this case." (Complaint ¶¶ 49, 97, 143, 189, 235, 281, and 327). 9. To the extent that Plaintiffs are claiming that the Political Subdivision Tort Claims Act's real property exception applies, Plaintiffs fail to state a claim upon which relief can be granted as to Defendant Carlisle. 2 10. The real property exception states that liability may be imposed on a local agency based upon "[t]he care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency." 42 Pa.C.S. § 8542. 11. The real property exception applies only where the local agency has "total control over the premises." Gramlich v. Lower Southampton Twp., 838 A.2d 843, 848 (2003). See also Sims v. Silver Springs -Martin Luther School, 625 A.2d 1297 (Pa. Cmwlth. 1993). "Limited control or mere occupation of the premises for a limited period is insufficient to impose liability." Id. 12. Plaintiffs have alleged no facts in their Complaint to establish or support that Defendant Carlisle had "total control" over the Fahnestock farm property at any time. 13. Plaintiffs have failed to allege facts sufficient to establish that any exception stated in the Political Subdivision Tort Claims Act applies in this matter. 14. The Borough, therefore, is entitled to the immunity provided under the Political Subdivision Tort Claims Act. 15. Plaintiffs, therefore, fail to state a claim upon which relief can be granted as to their nuisance and negligence claims against Defendant Carlisle. 16. Accordingly, Defendants preliminarily object to Counts 1, 2, 5, 6, 9, 10, 13, 14, 17, 18, 21, 22, 25, and 26, pursuant to Pa.R.C.P. 1028(a)(4) for legal insufficiency of a pleading (demurrer). 3 WHERFORE, Defendants respectfully request that this Court sustain the Defendants' Preliminary Objections and dismiss Counts 1, 2, 5, 6, 9, 10, 13, 14, 17, 18, 21, 22, 25 and 26 of Plaintiffs' Complaint for failure to state a claim upon which relief can be granted. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNTS 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, AND 28 OF PLAINTIFFS' COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(4) 17. Defendant incorporates by reference the averments of paragraphs 1 through 16 as though the same were set forth fully at length herein. 18. Pursuant to Pa.R.C.P. 1028(a)(4), a party may preliminarily object to a pleading for legal insufficiency of a pleading (demurrer). 19. In Counts 2, 6, 10, 14, 18, 22, and 26, Plaintiffs contend that Defendant Carlisle was negligent and in Counts 4, 8, 12, 16, 20, 24, and 28, Plaintiffs contend that Defendant Fahnestock was negligent. 20. "[T]he elements of a negligence -based cause of action are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss" on the part of the Plaintiffs. See Roche v. Ugly Duckling Car Sales, Inc., 879 A.2d 785, 789 (Pa. Super. 2005). 21. In all counts of the Complaint alleging negligence, Plaintiffs baldly assert that Defendant Carlisle and Defendant Fahnestock "breached some or all of' a general list of alleged duties or were "otherwise negligent" with respect to each Plaintiff. (Complaint ¶¶ 49-50, 75-76, 97-98, 121-22, 143-44, 167-168, 189-90, 213-14, 235-36, 259-60, 281-82, 305-06, 327-38, 351- 52). 22. As stated infra, Plaintiffs' use of "some or all" and a general reference to "otherwise negligent" are insufficiently specific and fail to comply with the Pennsylvania Rules of Civil Procedure. 4 23. In each of their negligence claims against Defendants, Plaintiffs aver that Defendants had, inter alia, the following duties: (a) a duty "to not harm neighbors ... through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions"; (b) a duty "to not allow emissions of malodourous air contaminants to invade other properties"; and (c) a duty "to not cause a public nuisance." (Complaint ¶¶ 49, 75, 97, 121, 143, 167, 189, 213, 235, 259, 281, 305, 327, 351). 24. Pennsylvania courts have held that property owners (particularly farmers) have no "duty to use property to protect neighbors from offensive odors and other nuisance conditions." Gilbert v. Synagro Central, LLC, 2014 WL 1464452, *13, A.3d (Pa. Super. 2014). Moreover, a negligence claim cannot rely solely on facts supporting a nuisance claim. See Gilbert, 2014 WL 1464452, *13, A.3d (citing Home v. Haladay, 728 A.2d 854 (Pa. Super. 1999). Accordingly, Pennsylvania law does not recognize several duties upon which Plaintiffs rest their negligence claims against Defendants. 25. To the extent Plaintiffs are endeavoring to establish a negligence claim in reliance upon the alleged "duties" referred to in paragraph 21 above, Plaintiffs have failed to state a claim for negligence upon which relief can be granted as to Defendants Carlisle and Fahnestock. 26. Accordingly, Defendants preliminarily object to Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28, pursuant to Pa.R.C.P. 1028(a)(4) for legal insufficiency of a pleading (demurrer). WHERFORE, Defendants respectfully request that this Court sustain the Defendants' Preliminary Objections and dismiss Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28 of Plaintiffs' Complaint for failure to state a claim upon which relief can be granted. 5 PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC PLEADING AS TO COUNTS 2,4,6,8,10, 12, 14, 16, 18, 20, 22, 24, 26, AND 28 OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(3) 27. Defendant incorporates by reference the averments of paragraphs 1 through 26 as though the same were set forth fully at length herein. 28. Pursuant to Pa.R.C.P. 1028(a)(3), a party may preliminarily object to a pleading for insufficient specificity. 29. Pa.R.C.P. 1019(a) requires that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." 30. The facts alleged in a Complaint must be "sufficiently specific to enable a defendant to prepare [its] defense." Unified Sportsmen of Pennsylvania v. Pennsylvania Game Comm'n (PGC), 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008). 31. "The pertinent question in considering preliminary objections based on insufficient specificity is whether the complaint is sufficiently clear to enable the defendant to prepare his or her defense, or whether the plaintiffs complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he or she may know without question upon what grounds to make his or her defense." 5 Standard Pennsylvania Practice 2d § 25:70 (citing Rambo v. Greene, 906 A.2d 1232 (Pa. Super. 2006)). 32. Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28 of Plaintiffs' Complaint, each alleging negligence on the part of Defendants Carlisle and Fahnestock, are replete with vague, overbroad, all-inclusive, and conclusory statements and fail to allege facts sufficient to enable Defendants to prepare a defense. 6 33. Plaintiffs' baldly assert that Defendants "breached some or all" of a list of "duties" or "were otherwise negligent." (Complaint ¶¶ 49-50, 75-76, 97-98, 121-22, 143-44, 167-168, 189-90, 213-14, 235-36, 259-60, 281-82, 305-06, 327-38, 351-52). 34. In Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28, Plaintiffs alleged that Defendants had a "Duty to not harm neighbors ... through frequent discharges of offensive and noxious odors, pathogens, and other air and surface emissions." (Complaint ¶¶ 49a, 75a, 97a, 121a, 143a, 167a, 189a, 213a, 235a, 259a, 281a, 305a, 327a, and 351a). 35. Plaintiffs failed to plead the dates on which Defendants allegedly breached this supposed duty as to each of the named Plaintiffs. 36. In Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28, Plaintiffs alleged that Defendants had a "Duty to not allow emissions of malodourous air contaminants to invade other properties." (Complaint ¶¶ 49b, 75b, 97b, 121b, 143b, 167b, 189b, 213b, 235b, 259b, 281b, 305b, 327b, and 351b). 37. Plaintiffs failed to plead the dates on which Defendants allegedly breached this supposed duty as to each of the named Plaintiffs. 38. In Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28, Plaintiffs alleged that Defendants had a "Duty to not adversely affect private water supplies." (Complaint ¶¶ 49c, 75c, 97c, 121c, 143c, 167c, 189c, 213c, 235c, 259c, 281c, 305c, 327c, and 351c). 39. With the exception of Counts 2 and 4, Plaintiffs failed to plead the manner in which Defendants allegedly breached this duty as to each named Plaintiff 40. With the exception of Counts 2 and 4, Plaintiffs failed to plead the dates on which Defendants allegedly breached this supposed duty as to each of the named Plaintiffs. 7 41. With the exception of Counts 2 and 4, Plaintiffs failed to identify the specific types and locations of the private water supplies that they allege were adversely affected. 42. In Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28, Plaintiffs alleged that Defendants had a "Duty to not cause a public nuisance." (Complaint ¶¶ 49d, 75d, 97d, 121d, 143d, 167d, 189d, 213d, 235d, 259d, 281d, 305d, 327d, and 351d). 43. Plaintiffs failed to plead the dates on which Defendants allegedly breached this supposed duty as to each of the named Plaintiffs. 44. In Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28, Plaintiffs alleged that Defendants had a "Duty to spread the sewage sludge at agronomic rates." (Complaint ¶¶ 49e, 75e, 97e, 121e, 143e, 167e, 189e, 213e, 235e, 259e, 281e, 305e, 327e, and 351e). 45. Plaintiffs failed to plead facts regarding the alleged rate at which Defendants applied biosolids. 46. Plaintiffs failed to identify the agronomic rates to which they refer. 47. Plaintiffs failed to plead the dates on which Defendants allegedly failed to spread sewage sludge at agronomic rates. 48. In Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28, Plaintiffs alleged that Defendants had a "Duty to comply with all setback provisions." (Complaint IN 49f, 75f, 97f, 121f, 143f, 167f, 189f, 213f, 235f, 259f, 281f, 305f, 327f, and 3511). 49. Plaintiffs failed to plead any facts regarding the specific setback provisions referred to in their Complaint. 50. Plaintiffs failed to plead any measurements contained in those setback provisions that Defendants allegedly violated. 8 51. Plaintiffs failed to plead the specific manner in which Defendants allegedly violated any setback provision. 52. Plaintiffs failed to plead the date on which Defendants allegedly violated any setback provisions. 53. In Counts 2 and 4, Plaintiffs alleged that Defendants had a "Duty to not cause surface or groundwater pollution." (Complaint ¶¶ 49g, 75g). 54. Plaintiffs failed to plead any facts regarding the specific location of any allegedly polluted water. 55. Plaintiffs failed to plead the dates on which Defendants allegedly caused any surface or groundwater pollution. 56. Plaintiffs failed to plead the location at which Defendants' alleged breaches occurred. 57. In Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28, Plaintiffs alleged that Defendants had a "Duty to comply with all provisions of Sections 271.901 through 271.933 of the Pennsylvania Code." (Complaint 451149h, 75h, 97g, 121g, 143g, 167g, 189g, 213g, 235g, 259g, 281g, 305g, 327g, and 351g). 58. Plaintiffs failed to identify the title, section, or specific provision of the Pennsylvania Code to which they refer and instead cited a range of section numbers without any specificity. 59. Plaintiffs failed to plead the dates on which Defendants allegedly violated any provision of the Code as to each of the named Plaintiffs. 60. Plaintiffs failed to plead the manner in which the Defendants allegedly violated any provision of the Code as to each of the named Plaintiffs. 9 61. Plaintiffs' allegations that Defendants violated "some or all" of the above -stated, alleged duties, or were "otherwise negligent" are woefully insufficient to enable Defendants to adequately prepare a response. Plaintiffs have failed to alert Defendants to the factual basis for their claims that Defendants breached "some or all" of the duties that Plaintiffs listed. Moreover, it is not clear to Defendants how they were "otherwise negligent." As the Pennsylvania Supreme Court suggested in Connor v. Allegheny General Hospital, 461 A.2d 600, 602 n. 3 (Pa. 1983), where such an open-ended, general averment is made, a party should raise a preliminary objection seeking to strike the general allegation or to have a more specific pleading filed. 62. To the extent Plaintiffs rely on a litany of alleged duties listed in their Complaint to establish Defendants' liability, Plaintiffs must aver facts sufficient as to each to enable Defendants to prepare a defense. Moreover, a catch-all statement that "some or all" of the duties were violated or that Defendants were "otherwise negligence" is inadequate and improper. 63. Plaintiffs failed to plead sufficient facts to support a negligence cause of action as to Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28. Accordingly, Defendants preliminarily object to said Counts, pursuant to Pa.R.C.P. 1028(a)(3), for insufficient specificity. WHEREFORE, Defendants respectfully requests that the Court sustain their preliminary objection as to Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, and 28 of Plaintiffs' Complaint and issue an order striking the contents thereof or, alternatively, requiring Plaintiffs to file a more specific pleading. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PLAINTIFFS' COMPLAINT FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO Pa.R.C.P. 1028(a)(2) 64. Defendant incorporates by reference the averments of paragraphs 1 through 63 as though the same were set forth fully at length herein. 10 65. Pursuant to Pa.R.C.P. 1028(a)(2), a party may preliminarily object to a pleading for failure of the pleading to conform to law or rule of court. 66. Pa.R.C.P. 1019(a) requires that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." 67. Plaintiffs' Complaint is rife with bald conclusions of law that are either completely unsupported by factual allegations or supported by nothing more than conclusory, overbroad, and all-inclusive allegations. 68. As noted in paragraphs 24 through 59, above, Plaintiffs failed to aver facts sufficient to enable Defendants to adequately prepare a defense. 69. Moreover, Pennsylvania Rule of Civil Procedure 1022 states that "[e]very pleading shall be divided into paragraphs" and that "[e]ach paragraph shall contain as far as practicable only one material allegation." Pa.R.C.P. 1022 (emphasis added). 70. A multitude of the 358 paragraphs of Plaintiffs' Complaint contain two or more material allegations. This improper format of Plaintiffs' Complaint makes it difficult for Defendants to prepare a proper response thereto. 71. Plaintiffs' Complaint, therefore, failed to conform to law or rule of court and Defendants preliminarily object pursuant to Pa.R.C.P. 1028(a)(2). WHEREFORE, Defendants respectfully request that the Court sustain its preliminary objection and strike Plaintiffs' Complaint for failure to conform to law or rule of court. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PLAINTIFFS' REQUEST FOR COSTS OF SUIT PURSUANT TO Pa.R.C.P. 1028(a)(4) 72. Defendant incorporates by reference the averments of paragraphs 1 through 71 as though the same were set forth fully at length herein. 11 73. Plaintiffs' Complaint contains several improper requests for an award of money damages "plus costs." 74. Parties are responsible for their own litigation costs "unless there is express statutory authorization, a clear agreement of the parties, or some other established exception." In re Farnese, 17 A.3d 357, 370 (Pa. 2011). 75. In their Complaint, Plaintiffs failed to allege facts sufficient to support a claim for costs. Plaintiffs further failed to plead any statutory authority or agreement of the parties sufficient to provide an exception to the general rule that litigants are responsible for their own litigation costs. 76. Defendants, therefore, object to Plaintiffs' demand for costs pursuant to Pa.R.C.P. 1028(a)(4). WHEREFORE, Defendants respectfully request that this Court sustain the Defendants' Preliminary Objections and strike Plaintiffs' requests for costs. Dated: 5/16(14 By: Respectfully submitted, SAL ANN HUGHES, P.C. / I. Scott! 41,2. and Attorney I.D. No. 52660 E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney ID: 311909 105 North Front Street, Suite 205 Harrisburg, PA 17101 (717) 234-6700 Attorneys for Defendants 12 CERTIFICATE OF SERVICE I, Scott T. Wyland, hereby certify that I served a true and correct copy of Defendants' Preliminary Objections to Plaintiffs' Complaint by first class mail, postage prepaid, this / 'day of May, 2014, on the following: Peter B. Bieri, Esq. Speer Law Firm, PA 104 West 9th Street, Suite 400 Kansas City, MO 64105 Edward Ciarimboli, Esq. Fellerman & Ciarimboli 183 Market Street, Suite 200 Kingston, PA 18704 Sc IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RICHARD MELLINGER; et al. PLAINTIFFS, v. BOROUGH OF CARLISLE, PENNSYLVANIA A/K/A CARLISLE BOROUGH MUNICIPAL AUTHORITY; and TIM FAHNESTOCK; DEFENDANTS. 420 C' �U/ X170 /�}rvyl1 p��5/��fi%fJ (fit G > ylJ Y 11/441/4/v7; Case No. 14-2194 CIVIL CERTIFICATE OF SERVICE Plaintiffs, by and through counsel, certify that they served the following on counsel for Defendants by mail and e-mail on this 1st day of August 2014: • Response to Defendants' Request for Admissions Directed to Plaintiffs Carl Biven and Joan Tosten—First Set; • Response to Defendants' Request for Admissions Directed to Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heinbaugh—First Set; • Response to Defendants' Request for Admissions Directed to Plaintiffs Wayne and Deborah Sweger—First Set; • Response to Defendants' Request for Admissions Directed to Plaintiffs Michael and Megan Young—First Set; • Response to Defendants' Request for Admissions Directed to Plaintiff Marian Hocker— First Set; • Response to Defendants' Request for Admissions Directed to Plaintiffs Leslie and Sharon Meacock—First Set; • Response to Defendants' Request for Admissions Directed to Plaintiffs Richard and Gale Mellinger—First Set. Respectfully submitted, SPEER LAW FIRM, P.A. By Peter Britton Bieri (PA Bar No. 314960) SPEER LAW FIRM, P.A. 104 W. 9th Street, Suite 400 Kansas City, MO 64105 Phone: (816) 472-3560 Fax: (816) 421-2150 Edward Ciarimboli (PA Bar No. 85904) Clancy Boylan (PA Bar No. 314117) FELLERMAN & CIARIMBOLI 183 Market Street, Suite 200 Kingston, PA 18704 Phone: (570) 714-4878 Fax: (570) 714-7255 Attorneys for Plaintiffs 2 CERTIFICATE OF SERVICE This will certify that on the day of 2014, a copy of the above and foregoing document was served on the following counsel of record via United States first-class mail, postage prepaid o facsimile "email o hand, delivery o Federal Express: Scott T. Wyland E. Lee Stinnett II Isaac P. Wakefield SALZMANN HUGHES, P.C. 105 North Front Street, Suite 205 Harrisburg, PA 17101. Attorneys for Defendants 3 Attorney for Plaintiffs Richard Mellinger; Gale Mellinger; Michael Young; Megan Young; Leslie Meacock; Sharon Meacock; Carl Bivens; Joan Tosten; IN THE COURT OF COMMON PLEAS Marian Hocker; H. Wayne Sweger; Deborah : OF CUMBERLAND COUNTY Sweger; Matthew Robinson; and Courtney : PENNSYLVANIA Heinbaugh, a minor, by and through her mother, Shannon Robinson, Plaintiffs v. : NO. 14-2194 CIVIL Borough of Carlisle, Pennsylvania A/K/A Carlisle Borough Municipal. Authority; and Tim Fahnestock, Defendants .< c - CERTIFICATE OF SERVICE Plaintiffs, by and through counsel, hereby give notice that on the 1 1th day of August 2014 they sent the following to Defendants via e-mail and ordinary mail: • Plaintiffs Richard and Gale Mellinger's Answers and Objections to Defendants' First Set of Interrogatories; • Plaintiffs Michael and Megan Young's Answers and Objections to Defendants' First Set of Interrogatories; • Plaintiffs Leslie and Sharon Meacock's Answers and Objections to Defendants' First Set of Interrogatories; • Plaintiffs Carl Bivens and Joan Tosten's Answers and Objections to Defendants' First Set of Interrogatories; • Plaintiffs Wayne and Deborah Sweger's Answers and Objections to Defendants' First Set of Interrogatories; • Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heinbaugh's Answers and Objections to Defendants' First Set of Interrogatories; • Plaintiff Marian Hocker's Answers and Objections to Defendants' First Set of Interrogatories; • Richard and Gale Mellinger's Responses to Defendants' Request for Production of Documents Directed to Plaintiffs Richard and Gale Mellinger-First Set; • Michael and Megan Young's Responses to Defendants' Request for Production of Documents Directed to Plaintiffs Michael and Megan Young—First Set; • Leslie and Sharon Meacock's Responses to Defendants' Request for Production of Documents Directed to Plaintiffs Leslie and Sharon Meacock; • Carl Bivens and Joan Tosten's Responses to Defendants' Request for Productino of Documents Directed to Plaintiffs Carl Bivens and Joan Tosten—First Set; • Wayne and Deborah Sweger's Responses to Defendants' Request for Production of Documents Directed to Plaintiffs Wayne and Deborah Sweger—First Set; • Matthew Robinson, Shannon Robinson, and Courtney Heinbaugh's Responses to Defendants' Request for Production of Documents Directed to Plaintiffs Matthew Robinson, Shannon Robinson, and Courtney Heinbaugh—First Set; and, • Marian Hocker's Responses to Defendants Request for Production of Documents Directed to Plaintiff Marian Hocker—First Set. Respectfully submitted, SPEER LAW FIRM, P.A. By Peter Britton Bieri (PA Bar No. 314960) SPEER LAW FIRM, P.A. 104 W. 9th Street, Suite 400 Kansas City, MO 64105 Phone: (816) 472-3560 Fax: (816) 421-2150 Edward Ciarimboli (PA Bar No. 85904) Clancy Boylan (PA Bar No. 314117) FELLERMAN & CIARIMBOLI 183 Market Street, Suite 200 Kingston, PA 18704 Phone: (570) 714-4878 Fax: (570) 714-7255 Attorneys for Plaintiffs CERTIFICATE OF SERVICE This will certify that on the 11411\ day of /V 2014, a copy of the above and foregoing document was served on the following c unsel of record via ❑ United States first-class mail, postage prepaid o facsimile o email ❑ hand delivery o Federal Express: Scott T. Wyland E. Lee Stinnett II Isaac P. Wakefield SALZMANN HUGHES, P.C. 105 North Front Street, Suite 205 Harrisburg, PA 17101 Attorneys for Defendants Attorney for Plaintiffs Richard Mellinger; Gale Mellinger; Michael Young; Megan Young; Leslie Meacock; Sharon Meacock; Carl Bivens; Joan Tosten; IN THE COURT OF COMMON PLEAS Marian Hocker; H. Wayne Sweger; Deborah OF CUMBERLAND COUNTY Sweger; Matthew Robinson; and Courtney PENNSYLVANIA Heinbaugh, a minor, by and through her — mother, Shannon Robinson, Plaintiffs NO. 14-2194 CIVIL Borough of Carlisle, Pennsylvania A/K/A Carlisle Borough Municipal Authority; and Tim Fahnestock, Defendants CERTIFICATE OF SERVICE Plaintiffs, by and through counsel, hereby give notice that on the 25th day of August 2014 they sent the following to Defendants via e-mail and ordinary mail: • Plaintiffs First Interrogatories to Defendant Borough of Carlisle; • Plaintiffs Request for Production to Defendant Borough of Carlisle; • Plaintiffs First Interrogatories to Defendant Tim Fahnestock; • Plaintiffs Request for Production to Defendant Tim Fahnestock; Respectfully submitted, SPEER LAW FIRM, P.A. By _ f1l Peter Britt B eri (PA Bar No. 314960) SPEER LAW FIRM, P.A. 104 W. 9th Street, Suite 400 Kansas City, MO 64105 Phone: (816) 472-3560 Fax: (816) 421-2150 Edward Ciarimboli (PA Bar No. 85904) Clancy Boylan (PA Bar No. 314117) FELLERMAN & CIARIMBOLI 183 Market Street, Suite 200 Kingston, PA 18704 Phone: (570) 714-4878 Fax: (570) 714-7255 Attorneys for Plaintiffs CERTIFICATE4T4 OF SERVICE This will certify that on the A01-day of 2014, a copy of the above and foregoing document was served on the following counsel of record via [ United States first-class mail, postage prepaid ❑ facsimile lemail ❑ hand delivery ❑ Federal Express: Scott T. Wyland II E. Lee Stinnett II Isaac P. Wakefield SALZMANN HUGHES, P.C. 105 North Front Street, Suite 205 Harrisburg, PA 17101 Attorneys for Defendants Attorney