HomeMy WebLinkAbout14-3800 Supreme C nnsylvania
Con COnmo leas For Prothonotary Use Only: rtlt
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Docket No:
14
CU RLANi� County Rf *1
_J
The information collected on this form is used solely for court administration purposes. This form does not
supplement or replace the filing and service of pleadings or other papers as required by law or rules of court.
Commencement of Action:
0 Complaint 13 Writ of Summons Petition
S (3 Transfer from Another Jurisdiction Declaration of Taking
E
C Lead Plaintiff's Name: Lead Defendant's Name:
BOROUGH OF SHIPPENSBURG ROBERT W. LINDSAY
T Dollar Amount Requested: Owithin arbitration limits
I Are money damages requested? 0 Yes 0 No (check one) ®outside arbitration limits
0 1
N Is this a Class Action Suit? 0 Yes 0 No Is this an MDJAPPeal? 13 Yes El No
A Name of Plaintiff/Appellant's Attorney: Melissa L. Kelso, Esquire
0 Check here if you have no attorney(are a Self-Represented [Pro Se] Litigant)
Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your
PRIMARY CASE. If you are making more than one type of claim,check the one that
you consider most important.
TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS
0 Intentional n Buyer Plaintiff Administrative Agencies
DMalicious Prosecution 0 Debt Collection:Credit Card [3Board of Assessment
n Motor Vehicle E3Debt Collection:Other E3Board of Elections
[3Nuisance 13 Dept.of Transportation
0 Premises Liability 0 Statutory Appeal:Other
S Product Liability(does not include
E mass tort) 0 Employment Dispute:
Discrimination
0SIander/Libel/Defamation
C n Other: 0 Employment Dispute:Other ® Zoning Board
T n Other:
I i [3 Other:
O MASS TORT
0 Asbestos
N [3Tobacco
[3Toxic Tort-DES
[3Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS
Toxic Waste 0 Ejectment l3 Common Law/Statutory Arbitration
B Other: 0 Eminent Domain/Condemnation [3Declaratory Judgment
0 Ground Rent Mandamus
[] Landlord/Tenant Dispute Non-Domestic Relations
0 Mortgage Foreclosure:Residential Restraining Order
PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial Quo Warranto
[3Dental 0 Partition 0 Replevin
[] Legal 0 Quiet Title l Other:
[3Medical Eil Other: Equity-Abatement of
n Other Professional: Nuisance
Updated 11112011
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA
BOROUGH OF SHIPPENSBURG
Plaintiff N0. LL of 2014
vs
ROBERT W. LINDSAY
: CIVIL ACTION ,
Defendant
NOTICE TO DEFEND � a
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS
SET FORTH IN THE FOLLOWING PAGES,YOU MUST TAKE ACTION WITHIN TWENTY
(20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A
WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN
WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET
FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE
MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU
BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE
COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE
PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT
TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE,PA 17013
1-800-990-9108
717-249-3166
C
Samuel E.Wiser,Esq.
Attorney ID No.203665
Melissa L.Kelso,Esq.
Attorney ID No.306793
SALZMANN HUGHES,P.C.
79 St.Paul Drive
Chambersburg,PA 17201
(717)263-2121
IN THE COURT OF COMMON PLEAS
BOROUGH OF SHIPPENSBURG OF CUMBERLAND COUNTY,
Plaintiff PENNSYLVANIA
V. No. of 2014
ROBERT W. LINDSAY
Defendant CIVIL ACTION
COMPLAINT
AND NOW comes Plaintiff, the Borough of Shippensburg(the"Borough" or"Plaintiff'),
by and through its counsel,Salzmann Hughes,P.C.,who hereby files this Complaint and in support
thereof avers as follows:
1. The Borough is a municipality located in Cumberland and Franklin Counties,
Pennsylvania, and has a principal business address of 111 North Fayette Street, Shippensburg, PA
17257.
2. Defendant, Robert W. Lindsay("Defendant") is an adult individual residing at 104
East Orange Street, Shippensburg, Cumberland County, PA 17257.
3. Defendant owns the residential property located at 104 East Orange Street,
Shippensburg, Cumberland County, PA 17257(the"Property"), identified by Tax Parcel I.D. No.
33-34-2415-126.
4. In August 2013, the Borough determined that the garage along the rear of the
Property constituted a public nuisance and dangerous structure that presented an immediate hazard
1
to the general health, safety,and welfare of the community,as defined by the Code of the Borough
of Shippensburg(the"Code").
5. The Code defines a nuisance as "any condition or use of premises or of building
exteriors which is detrimental to the property of others or which causes or tends to cause substantial
diminution in the value of other property in the neighborhood in which such premises are located."
Code, § 106-2.
6. The Code specifically includes in its definition of nuisances the maintaining or
causing to be maintained of any dangerous structure. Code, § 106-2.
7. The Code defines a dangerous building as
any building, structure or portion thereof which threatens the life, health, safety or
property of the public or its occupants by reason of inadequate maintenance,
dilapidation, obsolescence, fire hazard, disasters, damage or abandonment.
Code, § 106-2.
8. The Code specifically includes in its definition of dangerous buildings which, due
to various reasons, are likely to partially or completely collapse. Code, § 106-2.
9. The Code renders nuisances illegal. Code, § 106-3.
10. The Garage located on the Property is partially collapsed and therefore constitutes
a nuisance and dangerous structure pursuant to the Code.
11. The Code directs the Borough, or its agent, to notify the owner of a structure that
contains a nuisance by either personal delivery, posting of notice on the door of the premises, or
certified mail. Code, § 106-5(A).
12. The Borough notified Defendant of the nuisance and dangerous structure located
on his Property by Notification of Violation dated August 6, 2013 ("First Notice"),which it served
2
on Defendant via both certified mail and posting at the Property. A true and correct copy of this
First Notice is attached hereto as Exhibit"A."
13. This First Notice identified that portions of the Garage were deteriorated and had
collapsed.
14. The Code directs that an owner or occupant of a structure that contains a nuisance
to abate the nuisance by the prompt removal of the nuisance. Code, § 106-4(A).
15. Should the owner or occupant of the structure fail to remediate the nuisance after
receiving notice of it from the Borough,the Code requires that"the Borough shall take such action
as is necessary to abate said nuisance without liability for damage to the property." Code, § 106-
4(B).
16. The Code further provides that the owner of the structure must bear the cost of the
Borough's abatement of the nuisance, including the "actual labor charges, equipment rental
charges, postage, plus a penalty of 10% of the costs," which the Borough may recoup by way of
the filing of a municipal claim or an action in equity, among other options. Code, § 106-4(B).
17. Likewise, the Borough Code also permits the Borough to prohibit and abate any
nuisance or dangerous structure on its own accord should the property owner fail to remediate the
nuisance or dangerous structure after notice, and permits the Borough to recoup the costs of
abatement, together with assessment of a penalty in the amount of ten percent (10%) of the costs.
8 Pa.C.S. § 1202(4).
18. After receiving the Borough's First Notice of the nuisance and dangerous structure
situated on his property on August 6, 2013, Defendant failed to abate the nuisance or dangerous
structure.
3
19. The Borough, by Resolution No. 13-015 adopted and effective on September 3,
2013, declared the garage located at 104 East Orange Street to be a public nuisance and dangerous
structure because of the condition of the roof and granted the Borough Manager or his designee
the authority to pursue an action at law or equity as necessary to abate the public nuisance and
dangerous structure should the property owner failed to abate the nuisance within thirty(30) days
of the effective date of the Resolution. A true and correct copy of this Resolution is attached hereto
as Exhibit`B."
20. The Borough again provided Defendant with Notice of the nuisance and dangerous
structure by way of a Notification of Violation/Order of Demolition dated April 25,2014("Second
Notice"), served via certified mail and posted at the Property. A true and correct copy of this
Second Notice is attached hereto as Exhibit"C."
21. This Second Notice provided Defendant with ten (10) days to remedy the nuisance
and dangerous structure, or else the Borough would take any actions permitted it under law to
abate the nuisance.
22. Defendant again failed to take any action to remedy the nuisance and dangerous
structure, despite two Notices of it and an over eight (8)month period in which to take action.
23. Both Notices specifically informed Defendant that:
Failure to comply with this notice within the timeframe specified constitutes a
violation of Chapter 106 of[the Code] with a potential fine of not less than$300.00
nor more than$1,000.00 and the costs of prosecution. In addition,you may be held
responsible for restitution and associated penalties if the Borough abates the
nuisance in accordance with Chapter 1064B of the [Code].
See Exhibits "A" and"B".
24. The nuisance and dangerous structure continues to exist on the Property.
4
25. More than ten (10) days have passed since Defendant received the Borough's
Second Notice of violation and order of demolition, yet he has failed to take action to remove the
nuisance and dangerous structure from his Property.
26. The Borough Code, like § 106-4(B) of the Code,permits a municipality to enforce
its ordinance through a civil action in equity filed in the court of common pleas of the county
where the borough is situated. 8 Pa.C.S. 3321(c).
27. Because Defendant failed to abate the nuisance as required of him by the Code,the
Borough Code, and the Borough's Notices,the Borough now requests that the Court enter an order
permitting the Borough to take action to abate the nuisance and dangerous structure from
Defendant's Property by way of demolition of the dilapidated and collapsed Garage, as permitted
by the Code and the Borough Code.
28. The Borough also requests that the Court assess any and all costs incurred in
abatement of the nuisance and dangerous structure against Defendant, along with the statutorily
provided ten percent(10%)penalty.
WHEREFORE, the Borough respectfully requests that this Honorable Court enter
judgment in its favor and against Defendant and permit the Borough to demolish the dangerous
structure and nuisance on the Property, and assess costs against Defendant as permitted by law,
along with any other costs and fees deemed just by this Court.
Respectfully submitted,
5
SALZMANN HUGHES, P.C.
By:
Samuel E. Wiser, Jr., Esquire
Attorney ID No. 203665
Melissa L. Kelso, Esquire
Attorney ID No. 306793
79 St. Paul Drive
Chambersburg, PA 17201
(717) 263-2121
(717) 263-0663 (Fax)
Solicitor for the Borough of Shippensburg
6
BOROUGH OF SMIPPENSBURG
Members of Council
Andrea Loge,President
Nicole Bard P.O.Box 129 Kathy Coy,Vice-President
Interim Borough Manager 111 North Fayette Street doe Hockersmith
Shippensburg,PA 17257-0129 Angela Facchinei
Kevin Plasterer (717)532-2147 Steve Brenize
Assistant Secretary Fax:(717)532-5948 Kerrl Burrows
Bruce Nockersmilh,Mayor
91 7199 9991 7031 7587 8206
Via Certified Mail and Posted at 104]Last Orange
August 6,2013
Robert W.Lindsay
104 East Orange Street
Shippensbuig,PA 17257
NOTIni CATION OF VIOLATION
RE: 104 East Orange Street, Shippensburg
Dear Mr. Lindsay:
Our records indicate that you are the owner of real estate located at 104 East Orange Street,
Shippensburg,PA and identified as Cumberland County Tax Parcel 33-34-2415-126. You are hereby
notified that the garage along the rear of the property located at 104 East Orange Street is a public
nuisance and dangerous structure which presents an immediate hazard to the general health,safety, .
and welfare of the community as provided in Chapter 106 of The Shippensburg Borough Code.
Portions of the roof of said garage are deteriorated and have collapsed. The Borough of Shippensburg
is empowered_by the Borough Code, 53P.S. §46202 (4) to prohibit and remove any such public
nuisances and dangerous structures.
You must commence action to remove all violations constituting a uublie nuisance and
dangerous structure by August 13, 2013 with all corrections completed by September 5, 2011.
You will need to repair the roof of the garage so that it is no longer in danger of collapse,and if repair .
of the roof is not possible or impractical,the structure must be demolished.
You must take steps to comply with this notice by commencing repair of the roof or demolition
of the structure by August 13,2013. All corrections must be made by September 5, 2013. You must.
ensure that you have obtained any an all necessary permits prior to commencing any work. If you do
not intend to comply, you should take this notice to your attorney at once. This is a Notice of
Violation. Ifyou cannot afford an attorney,you should contact Legal Aid.
The Borough is an Equal Opportunity,Employer j
�l u 411)Z- uta v` r�
EXHIBIT
w �'l-fit, l(��l�z.:rfr � u"k-- •fir
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Failure to comply with this notice within. the timeframe specified constitutes a violation of
Chaffer 106 of the Code of the Borough of Shippensburg with a potential fine of not less than $300
nor more than $1,000.00 and the costs of prosecution. Tn addition you may be held responsible for
restitution and associated penalties if the Borough abates the nuisance in accordance with Chapter 106-
4B of the Shippensburg Borough Code,
If you do not comply with the repair or removal of the structure, the Borough of
,Shippensburg may faIte any and all actions provided at In-IV.
Please do not hesitate to contact this office should you have questions or need further
information.
Sincerely,
Pol M. San41�'lle
Code Enforcement
CC: Nicole Bard,Interim Borough Manager
Sam Wiser,Borough Solicitor
t .
The Borough is an Equal Opportunity Employer
142
RESOLUTION NO. 13-015 f
A RESOLUTION OF.THE BOROUGH OF SHIPPENSBURG,CUMBERLAND AND FRANKLIN COUNTIES
DECLARING THE GARAGE AT 104 EAST ORANGE STREET TO BE A PUBLIC NUISANCE AND
DANGEROUS STRUCTURE DUE TO THE CONDITION OF THE ROOF WHICH STRUCTURE IS AN
IMMEDIATE HAZARD TO THE GENERAL HEALTH,SAFETY,AND WELFARE OF THE COMMUNITY
AND PROVIDING FOR THE ABATEMENT, IN PART,OF•THE NUISANCE AND DANGEROUS
S'T'RUCTURE BYJHE BOROUGH IF SUCH NUISANCE IS NOTABATED BY THE PROPERTY OWNER
WITHIN THIRTY DAYS OF THE EFFECTIVE DATE OF TI•115 RESOLUTION,
WHEREAS,the Borough Is empowered by the borough Code,53 P.S.§.46202(4)to prohibit and
remove any public nuisance or dangerous structures;and
WHEREAS,Chapter 106 of the Code of the Borough of Shippensburg declares nirlsances and•
dangerous buildings to be illegal;and
WHEREAS, the Code Enforcement Official of the Borough of Shippensburg caused notice of the
public nuisance and dangerous structure to be served upon the property owner In accordance
with Chapter 106;and-
WHERFAS;the roof on the garage located at 104 East Orange Street is In a state of disrepair
and in a partial state of collapse;and
WHEREAS,the condition of the garage roof presents a danger to the health,safety, and welfare
of the general public, and Is In a condition that violates the Code of the Borough of
Shippensburg;and
WHEREAS,the condition of the garage roof presents an Immediate hazard to the general
health,safety,-and welfare of the community and the general condition of the porch roof
constltutes a public nuisance and dangerous structure,
NOW,THEREFORE,BE IT RESOLVED that the Council of the borough of Shippensburg does
hereby resolve as follows;
I. The above recitals are Incorporated herein by reference.
2. The condition of the garage roof located at 104 East Orange Street Is hereby
declared to be a public nuisance and dangerous structure which presents an
Immediate hazard to the general health,safety,and welfare of the community,
3. The garage located at 104 East Orange Street Is declared to be a public nuisance and
dangerous structure due to the roof being In a state of disrepair and partial collapse.
4. If the Immediate hazard Is not abated bythe property owner within thirty days of
the effective date of this Resolution,the Borough Manager,or his designee, Is
EXHIBIT
I
permitted to ensure that the following actions,which are reasonably necessary to
[ abate the public nuisance,are taken:
4 a. AUTHORIZE ACTION AT LAW OR EQUITY AS NECESSARY TO ALLOW
BOROUGH TO ABATE THE PUBLIC NUISANCE AND DANGEROUS
STRUCTURE:Authorize the BorouglfSolicitor to commence an action at law
or equity In the event the property owner falls to abate the public nuisance
and dangerous structure so that the public nuisance and dangerous structure
can be abated by the Borough as provided for in 53 P.S.§48203-A.
b. REMOVE ALL VIOLATIONS CONSTITUTING A PUBLIC NUISANCE AND
DANGEROUS STRUCTURE: Repair the roof of the garage to adequately
support the structure;or demolish and remove the garage from the property
If repair Is not possible or the property owner refuses to make the necessary
repairs.
c. -CHARGE OF COSTS: If the Borough abates the public nuisance the Borough
will charge the property owner for the costs of abating the public nuisance
and dangerous structure"as well as any other expenses Incurred by the
Borough to abate the public nuisance and dangerous structure to the extent
permitted by law. If the bill Is not promptly paid,the Borough will file a lien
against the property.
I 5. This Resolution shall take effect immediately.
DULY ADOPTED this
—P—V—clay of 2013,bythe Council of
the Borough of Shippensburg, in lawful session duly assembled.
8 ROUGH OF SMTP ENS URG
By:
Andrea S, Wlge, Presl nt
ATTEST:
(SEAL)
Nicole Bard,thorough Secretary
BOROUGH OF SHIPPENSBURG
DIM
Members of Council
Borough Manager Andrea Lage,President
Lance Hoover P.O.Box 129 Kathy Coy,Vice President
111 North Fayette Street Kerri Burrows
Shippensburg, PA 17257-0129 Angela Facchinei
Nicole Bard (717)532-2147 John Alosi Jr
Assistant Secretary Fax:(717)532-6948 Joe Hockersmith
Bruce Hockersrnith,Mayor
91 7199 9991 7033 3495 9524
April 25, 2014
Robert W. Lindsay
104 East Orange Street
Shippensburg, PA 17257
Via Certified Mail and Posted at 104 West Orange
NOTIFICATION OF VIOLATION 1 ORDER OF DEMOLITION
Dear Mr. Lindsay:
As you are aware, you previously received a Notice of Violation dated August 6, 2013
regarding the real estate you own at 104 East Orange Street. You were notified that the
garage located at 104 East Orange Street was determined to be a public nuisance and
dangerous structure as provided in Chapter 106 of the Shippensburg Borough Code. Portions
of the structure had collapsed and the structure posed, and continues to pose an immediate
hazard to the general health, safety and welfare of the community. At this point, insufficient
steps to completely remedy the violation have been completed, although ample time has been
provided to remove the violation. The condition of the property has continued to deteriorate
and the structure continues to remain in an unsafe condition, in danger of collapse.
YOU ARE ORDERED TO REMOVE THE DANGEROUS STRUCTURE LOCATED AT
THE PROPERTY WHICH CONSTITUTES A PUBLIC NUISANCE NO LATER THAN TEN
(10) DAYS OF THE DATE OF THIS NOTICE. If you fail to remove the dangerous structure
and completely remedy the violation as directed in this notice the Borough will take whatever
action deemed necessary that is permissible under law or equity to remove the dangerous
structure and remedy the violation.
You must ensure that you have obtained any and all necessary permits prior to
commencing any work. if you do not intend to comply, you should take this Order for
The Borough is an Equal Opportunity Employer
EXHIBIT
s
Demolition to your attorney at once. If you cannot afford an attorney, you should contact Legal
Aid.
Failure to comply with this notice within the timeframe specified constitutes a violation of
Chapter 106 of the Code of the Borough of Shippensburg with a potential fine of not less than
300 nor more than $1,000.00 and the costs of prosecution In addition you may be held
responsible for restitution and associated penalties if the Borough abates the nuisance in
accordance with Chapter 106 -413 of the Shippensburg Borough Code
Please do not hesitate to contact this office should you have questions or need further
information.
Sincere ,
Lance Hoover, Boro h anagen
cc: Donna M. Sommerville, Code Enforcement
Sam Wiser, Borough Solicitor
The Borough is an Equal Opportunity Employer
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904,
relating to unsworn falsification to authorities.
Borough of Shippensburg
DATED: �O- Ll o
Lance Hoover,Borou . Manager
-r
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
SHERIFF'S OFFICE OF CUMBERLAND COUNTY ,.
OF THE PROIVIONOTARI
2014 JUL 22 Ph 2: 5
CUMBERLAND ANA
N>10 of Unifier/
OFFICE QF THE £HERIFF
Borough of Shippensburg
vs.
Robert W Lindsay
Case Number
2014-3800
SHERIFF'S RETURN OF SERVICE
07/14/2014 12:07 PM - Jamie DiMartle, Deputy Sheriff served the requested Complaint & Notice by "personally"
handing a true copy to a person representing themselves to be the Defendant, to wit: Robert W Lindsay
at the Cumberland County Sheriffs Office, One Courthouse Square, Carlisle, PA 17013.
SHERIFF COST: $73.69
July 15, 2014
(c) CountySuile Shentf, Teleosoft. Inc.
IE DIMARTLE,
SO ANSWERS,
RONNY R ANDERSON, SHERIFF
BROUGH OF SHIPPENSBURG
Plaintiff
V.
ROBERT W. LINDSAY
iCjlltUdflL
IN THE COURT OFCOMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
No. 3800 of 2014
f 1
V IL. t1A-: 1 J. 111
ANSWER
AND NOW comes the Defendant, Robert W. Lindsay, who answers the Complaint as
Follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Denied.
5. Denied.
6. Denied.
7. Denied.
8. Denied.
9. Denied.
10. Denied.
11. Denied.
12. Denied.
13. Denied.
14. Denied.
15. Denied.
16. Denied.
17. Denied.
18. Denied.
19. Denied.
20. Denied.
21. Denied.
22. Denied.
23. Denied.
24. Denied.
25. Denied.
26. Denied.
27. Denied.
28. Denied.
WHEREFORE , The Defendant respectfully requests that the Complaint be
dismissed.
Respectfully submitted,
Robert W, Lindsay
3
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of August'2014, I served a true and correct copy
of the foregoing document via United. States mail, First class, postage prepaid, and
addressed as follows:
By:
Salzmann Hughes P.C.
Melissa L. Kelso, Esquire
79 St. Paul drive
Chambersburg PA 17201
Robert W. Lindsay
104 east Orange Street
Shippensburg, PA 17257