HomeMy WebLinkAbout06-0910
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PAUL and LOIS HOFFMAN,
BENJAMIN and LINDA BABSKI,
LOWELL and DIXIE BAKER, and
JIM WILSON
Plaintiffs
No. O~ - 9/0
Civil Action - Equity
C;ulL~~
v.
DA VID J. and ELIZABETH A. GABEL,
Defendants
NOTICE
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 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 reliefrequested 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
Carlisle, PA I7013
(717) 249-3166 or 1-800-990-9108
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PAUL and LOIS HOFFMAN,
BENJAMIN and LINDA BABSKI,
LOWELL and DIXIE BAKER, and
JIM WILSON
Plaintiffs
No.
Civil Action - Equity
v.
DAVID J. and ELIZABETH A. GABEL,
Defendants
NOTICIA
Les han demandado a usted en la corte. Se usted guiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de
la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por
abogado y archhivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas
en coma de su persona. Sea avisado qui si usted no soe defiende, la corte tomara mmedidas y
purde entrar una orden contra usted sin previo aviso 0 notoficacion y pro cualquier queja 0
alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades
o otros derechos importantes para usted.
LLEVE ESTA DEMANDO A UN ABODAGO IMMEDIATEMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
V A Y A EN PERSONA 0 LLAME FOR TELEFONO A LA OFICIAN CUY A DIRECCION
SE ENCUENTRA ESCRITA ABAJO PARA A VERIGUAR DONDE SE PUEDE
CONSGUIR ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
Carlisle, PA 17013
(717) 249-3166 or 1-800-990-9108
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PAUL and LOIS HOFFMAN,
BENJAMIN and LINDA BABSKI,
LOWELL and DIXIE BAKER, and
JIM WILSON
Plaintiffs
No. 0(" - q/D
Civil Action - Equity
C;t.nL ~h1
v.
DA VID J. and ELIZABETH A. GABEL,
Defendants
COMPLAINT
Plaintiffs, by their attorney, Debra K. Wallet, Esquire, bring the following cause of
action in equity:
1. Plaintiffs Paul and Lois Hoffman are adult individuals who reside at 6349
Bennington Road, Mechanicsburg, Pennsylvania 17050.
2. Plaintiffs Benjamin and Linda Babski are adult individuals who reside at 6342
Concord Road, Mechanicsburg, Pennsylvania 17050.
3. Plaintiffs Lowell and Dixie Baker are adult individuals who reside at 6344
Concord Road, Mechanicsburg, Pennsylvania 17050.
4. Plaintiff Jim Wilson is an adult individual who resides at 6332 Bennington
Road, Mechanicsburg, Pennsylvania 17050.
5. Defendants David J. Gabel and Elizabeth A. Gabel, his wife, are adult
individuals who reside at 6351 Bennington Road, Mechanicsburg, Pennsylvania 17050.
6. Defendant and his wife are the record owners of all that certain real estate and
residence numbered as 6351 Bennington Road, Mechanicsburg, Hampden Township,
Cumberland County, Pennsylvania (the "Property") which is part of the Bunker Hill
development.
7. Defendants agreed at the time of purchase of the Property and acceptance of the
Deed for the Property to be bound by the Declaration of Covenants and Restrictions Applicable
to Plan of Bunker Hills 6, dated September 27, 1989, recorded October 10, 1989 at Book 370,
Page 265 [hereinafter "C & R"], a copy of which is attached hereto as Exhibit A and
incorporated herein by reference.
8. Section 19 of the C & R provides in relevant part:
Violation of any of the foregoing restrictions, covenants
and conditions may be redressed by the owner of any lot
on said subdivision plan by action in equity for injunctive
relief or such other remedy allowed by law.
9. Plaintiffs are owners of lots in "said subdivision plan."
10. In late July or early August, 2005, in the backyard of the Property, Defendants
commenced construction of a structure consisting of a wooden floor, four walls, three
windows, a doorway, and a roof, with supporting beams supported in poured concrete.
11. This structure can be readily seen by the owners of the neighboring lots.
12. The structure is an "auxiliary building" prohibited by Section 2 of the C & R,
which states that "no auxiliary buildings or detached garages shall be permitted."
13. The structure is an "auxiliary building" prohibited by Section 9 of the C & R,
which states that "no auxiliary building shall be permitted."
14. If the structure is designed to be "temporary," then it is in violation of Section
10 of the C & R which prohibits a "structure of a temporary character."
15. Defendants made no request to the Architectural Control Committee of the
Bunker Hills Homeowners' Association in advance of the construction of the auxiliary
building.
16. Failure to obtain "express prior written approval" for "new construction and
any subsequent exterior renovation or addition to improvements on said lots" violates Section
18 of the C & R.
17. The auxiliary building is constructed in a location which interferes with the
privacy of the adjoining homeowners.
18. Plaintiffs sent a letter dated August 29, 2005 to Defendants advising them that
the construction of this "auxiliary building" was in violation of the C & R. A true and correct
copy of this letter is attached hereto as Exhibit B and incorporated herein by reference. .
19. Defendants received Exhibit B by certified mail on September 1, 2005.
20. In spite of the notice of violation of the C & R, Defendants proceeded with the
construction such that a fully enclosed structure with roof and attached swing set was
completed in early October 2005.
21. Defendants call the structure a "swing set."
22. The auxiliary building can stand entirely independent of the swing set currently
attached to it and is, in itself, an "on-lot recreational facility."
23. Also in the backyard of the Property, Defendants have erected a trampoline and
a target used for bow and arrow.
24. In the front of the Property, Defendants have erected an immobile backboard
and hoop for basketball on the side of the driveway connecting with the garage.
25. The trampoline, bow and arrow target, basketball hoop with backboard, and
swing set are "on-lot recreational facilities" which violate Section 5 of the C & R prohibiting
"on-lot recreational facilities of any nature or type unless specifically exempted herein."
26. Only swimming pools and attached bathhouses are "exempted" by Section 12 of
the C & R if prior approval of the Architectural Control Committee is received.
27. Swing sets, basketball backboards and hoops, trampolines, and targets for bow
and arrow are not specifically exempted in the C & R.
28. The use of the bow and arrow target constitutes a nuisance and poses a danger
to adjoining homeowners, including children or pets, who may be injured by arrows aimed at
the target.
29. All of these additions to the outside of Defendants' property negatively affect
the value, desirability, marketability and attractiveness of the individual lots.
30. As of the date hereof, Defendants have refused and continue to refuse to remove
the auxiliary building and the recreational facilities from his Property.
31. As a result of Defendants' flagrant violation of the C & R, Plaintiffs have
expended legal fees and costs in connection with the August 29, 2005 notice, the preparation
and filing of this Complaint, and other legal efforts to obtain enforcement of the C & R.
32. Plaintiffs will continue to expend legal fees and costs in connection with the
prosecution of this Complaint.
WHEREFORE, Plaintiffs request this Honorable Court to enter an order in favor of
Plaintiffs and against Defendants as follows:
A. Declaring Defendants' erection of the auxiliary building, swing set, basketball
backboard, trampoline, and target for bow and arrow practice on the Property to be in
violation of the C & R; and
B. Directing the Defendants immediately to remove the auxiliary building, swing
set, basketball backboard, trampoline, and target for bow and arrow practice and to restore the
Property to the condition in which it existed prior to Defendants' illegal acts; and
C. Enjoining Defendants from placing these recreational facilities and auxiliary
buildings on the Property without first receiving the written approval of the Architectural
Control Committee and otherwise complying with the C & R; and
D. A warding to Plaintiffs their reasonable legal fees and costs in connection with
the enforcement of the C & R; and
E. Granting such other relief as the Court may deem appropriate under the
circumstances. Respectfully submitted,
_\..Q~lt'. ~
Debra K. Wallet, Esq.
24 N. 32nd Street
Camp Hill, PA 17011
(717) 737-1300
I.D.# 23989
Attorney for Plaintiffs
. . .
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PAUL and LOIS HOFFMAN,
BENJAMIN and LINDA BABSKI,
LOWELL and DIXIE BAKER, and
JIM WILSON
Plaintiffs
No.
Civil Action - Equity
v.
DA VID J. and ELIZABETH A. GABEL,
Defendants
VERIFICATION
I verify that the statements made in the foregoing document are true and correct to the
best of my knowledge, information and belief. I understand that false statements made herein
are made subject to the penalties of 18 Pa. C.S. !l4904, relating to unsworn falsification to
authorities.
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DAVID J, AND ELIZABETH A. GABEL, )
Defendants )
MICHAEL L. BANGS, ESQUIRE
LD, NO, 41263
429 SOUTH 18TH STREET
CAMP HILL, PA 17011
(717) 730-7310
PAUL AND LOIS HOFFMAN,
BENJAMIN AND LINDA BABSKI,
LOWELL AND DIXIE BAKER, and
JIM WILSON,
ATTORNEY FOR DEFENDANTS
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
NO, 06-910 CIVIL TERM
vs,
CIVIL ACTION - EQUITY
PRAECIPE
TO THE PROTHONOTARY:
Please enter my appearance on behalf of the Defendants in the above-referenced matter.
I Respectfully submitted,
[ !iJ Z )?')
MIC AEL L. BANGS / j
Attorney for DefendanV
429 South 18th Street
Camp Hill, P A 170 II
(717) 730-7310
Supreme Court ID #41263
MICHAEL L. BANGS, ESQUIRE
LD, NO, 41263
429 SOUTH 18TH STREET
CAMP HILL, PA 17011
(717) 730-7310
PAUL AND LOIS HOFFMAN,
BENJAMIN AND LINDA BABSKI,
LOWELL AND DIXIE BAKER, and
JIM WILSON,
)
)
)
)
)
)
)
)
DAVID J, AND ELIZABETH A. GABEL, )
Defendants )
Plaintiffs
vs,
ATTORNEY FOR DEFENDANTS
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO, 06-910 CIVIL TERM
CIVIL ACTION - EQUITY
NOTICE
YOU ARE HEREBY NOTIFIED TO RESPOND TO THE
ENCLOSED NEW MA TfER WITHIN TWENTY (20) DAYS
FROM SERVICE HEREOF OR A DEF AUL T JUDGMENT MAY
! BE ENTERED AGAINST YOU. i/)'/~")
i Ii .J { .) /.~) /
~lJ1j/(A> / // /
MICHPI LLBANGS(lD#41263)f /
429 South 18th Street, Camp Hill, PA/170I 1
(717) 730-7310
ANSWER AND NEW MATTER
1. Admitted.
2, Admitted.
3. Admitted.
4, Admitted.
5, Admitted.
6. Admitted.
7, Admitted,
8. Admitted.
9. Admitted.
I
10, Denied as stated, It is specifically denied that Defendants constructed anything more
than a swing set. The description contained in that averment is only partially accurate and does
not completely describe the full construction which was a swing set.
11. Denied as stated. Defendants are without knowledge sufficient to form a belief as to
the truth of this averment and therefore it is denied and strict proof thereof is demanded at the
trial of this case.
12, Denied. It is specifically denied that the swing set can be classified as an "auxiliary
building" under Section 2 of the Covenants and Restrictions ("C & R") and that the swing set
built by Defendants on their property is prohibited by Section 2 of the C & R.
13. Paragraph 13 is a restatement of Paragraph 12 and the same answer is incorporated
herein.
14, Denied as stated. Defendants deny that the swing set is a "structure" as defined by
Plaintiffs in their Complaint. Since the swing set is not a "structure," Section 10 of the C & R is
not applicable.
15, Admitted in part and denied in part. It is admitted that Defendants made no request
ofthe Architectural Control Committee of the Bunker Hill Homeowners' Association for the
construction of the swing set. It is denied that Defendants were required to make a request of the
Architectural Control Committee since they were not requesting the construction of an auxiliary
building; rather they constructed a swing set.
16, Denied, It is specifically denied that Section 18 of the C & R applies to Defendants.
Defendants had no requirement to obtain express prior written approval for the construction of
2
the swing set. The C & R does not require prior written approval for the construction of a swing
set and Section 18 of the C & R is not applicable to Defendants in this case.
17. Denied, It is specifically denied that the swing set is an auxiliary building as averred
in Plaintiffs' Complaint. The swing set is not an auxiliary building as that term is given its fair
meaning under the C & R. Additionally, Defendants, after reasonable investigation, deny that
the construction of a swing set interferes with the privacy of the adjoining homeowners. Rather,
the swing set was built on the property of Defendants.
18, Admitted in part and denied in part. It is admitted that Plaintiffs sent a letter dated
August 29, 2005 to Defendant David Gabel. It is denied that the letter applies to David Gabel
because the complaints averred in the letter, as are the averments in this Complaint, refer to an
auxiliary building rather than the swing set that was constructed,
19, Admitted,
20, Denied as stated, It is denied that the swing set as constructed is a structure as that
term is being used in Plaintiffs' Complaint. It is averred that Defendants constructed a swing set
with playhouse despite receiving the letter from Plaintiffs because the swing set was not an
auxiliary building and is not in violation of the C & R,
21, Denied as stated. It is denied that the swing set is a structure as that term is used by
Plaintiffs' in their Complaint. The swing set is ofthe type and size that is typical of all swing
sets that are constructed throughout the area.
22. Denied, It is specifically denied that the swing set is an auxiliary building or that it is
an "on-lot recreational facility" as that term is defined in the C & R. The manner in which the
swing set was constructed is not relevant to the question as to whether or not it is a structure or
3
an "on-lot recreational facility." The swing set as constructed is neither an "on-lot recreational
facility" nor it is a structure as that term is being used by the Plaintiffs in their Complaint and is
not barred by the C & R.
23. Denied as stated, The Defendants have not "erected" a trampoline and a target used
for bow and arrow. Rather, they have simply placed the trampoline and target used for bow and
arrow in their backyard which is not barred by the C & R.
24. Admitted,
25. Denied. It is specifically denied that the trampoline, bow and arrow target,
basketball hoop with backboard and swing set are "on-lot recreational facilities" as that term is
defined under Section 5 of the C & R, It is averred that the items averred in this Complaint are
nothing more than play areas used by Defendants' children and are not "nuisances" as that term
is used under Section 5 of the C & R and are not barred by the applicable C & R.
26, Denied as stated. It is specifically denied that the trampoline, bow and arrow target,
basketball hoop with backboard and swing set need to be exempted at all under the C & R.
Defendants aver that Section 12 of the C & R is not applicable to these items.
27. Denied as stated. It is specifically denied that there is any requirement under the C &
R that swing sets, basketball backboards and hoops, trampolines and targets for bow and arrow
be specifically exempted. It is averred that swing sets, basketball backboards and hoops,
trampolines and targets for bow and arrow are not "nuisances" and are not excluded by the
C&R,
28. Denied, It is specifically denied that the bow and arrow target constitutes a
"nuisance" as that term is described under Section 5 of the C & R or that it poses a danger to
4
adjoining homeowners, including children or pets, who may be injured by arrows aimed at the
target. It is averred that the use of the bow and arrow is conducted in a safe manner and is not
contrary to the requirements of the C & R,
29, Denied. Defendants are without knowledge sufficient to form a belief as to the truth
of this averment and therefore it is denied and strict proof thereof is demanded at the trial of this
case.
30, Denied as stated. It is strictly denied that Defendants have refused and continue to
refuse to remove the "auxiliary building" or "recreational facilities" from the property in that
they do not have any "auxiliary building" or "recreational facilities" on the property. It is
averred that there is no requirement to remove the swing set, trampoline, bow and arrow target,
or basketball hoop with backboard from the property nor it is required under the C & R.
31. Denied, It is specifically denied that Defendants have committed any flagrant
violation of the C & R or that they have committed any violation of the C & R Defendants are
without knowledge sufficient to form a belief as to whether or not the Plaintiffs have expended
legal fees and costs in connection with any notice or the preparation and filing of the Complaint,
but in the event that they did, it is not reimbursable by the Defendants,
32. Denied, Plaintiffs are not entitled to legal fees and costs in connection with
prosecution of this Complaint.
WHEREFORE, Defendants request this Honorable Court to deny the requested relief in
Plaintiffs' Complaint and rule in favor of Defendants and against the Plaintiffs on all requests
and enter such other relief as the Court may deem appropriate, including reasonable counsel fees
and costs for Defendants in defending this frivolous action,
5
NEW MATTER
33, Paragraphs 1 through 32 are incorporated herein by reference as ifmore fully set
forth.
34. In the summer of 2005, Defendants began construction of a swing set for use by their
children.
35, Plaintiff Paul Hoffman, the next door neighbor of Defendants, approached Defendant
David Gabel in a belligerent manner and instructed him that he was not permitted to put a swing
set on his property without prior approval.
36. Plaintiff Paul Hoffman indicated that he was the head of the Association and he had
the authority to order Defendant David Gabel to remove the swing set even though he had no
such authority.
37. In August, 2005, Defendants received a letter from Plaintiffs' counsel indicating that
the Defendants were in violation of the Covenants and Restrictions ("C & R") applicable to
Bunker Hills where the subject property is located.
3 8, Defendants have constructed a swing set for use by their children which has been
improperly categorized as a "structure" or "auxiliary building" by Plaintiffs.
39. Prior to construction of the swing set, Defendants contacted Hampden Township and
were told that there was no restrictions on the construction of swing sets nor any requirements of
them to obtain any permit or other documents necessary to construct the swing set.
40, The C & R do not prohibit the placement of swing sets on properties within Bunker
Hills.
6
41, The swing set on Defendants' property is not prohibited by the applicable C & R,
42. There are other swing sets within Bunker Hills that have not been included by the
Plaintiffs in this suit.
43. Defendants have a movable trampoline and bow and arrow target on their premises.
44, The trampoline and bow and arrow target are not specifically excluded from the C &
R for Bunker Hills,
45, The trampoline and bow and arrow target are not "nuisances" under Section 5 of the
C & R in that they are not "on-lot recreational facilities,"
46. If the C & R were meant to apply to trampolines and bow and arrow targets, they
would be specifically prohibited under the C & R.
47, Since the C & R does not specifically prohibit the trampoline and bow and arrow
target, they cannot be excluded from Defendants' premises.
48. There are other trampolines and bow and arrow targets in Bunker Hills.
49, Defendants' basketball hoop and backboard is not specifically excluded by the C &
R for Bunker Hills,
50, Defendants' basketball hoop and backboard is not an "on-lot recreational facility"
under any definition within the C & R,
51, Since the basketball hoop and backboard are not specifically excluded, they are
permitted under the C & R of Bunker Hills,
52. There are other basketball hoops and backboards in Bunker Hills.
7
VERIFICATION
We hereby verify that the statements made in the foregoing Answer and New Matter are
true and correct. We understand that false statements herein are made subject to the penalties of
18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities.
Date: j} IS (U~
Q~d~
DAVIDJ.G I. e
C" r,' ....'i "1"'1
Z Cl';il t'L H l "I" \b b'/~
ELIZAB H A. GABEL
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this day served the foregoing DEFENDANTS'
ANSWER WITH NEW MATTER, by depositing a copy of the same in the United States mail,
postage prepaid, at Camp Hill, Pennsylvania, addressed to the following:
Debra K. Wallet, Esquire
24 North 32nd Street
Camp Hill, P A 17011
DATE: ,3-1'5-0(0
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY , PENNSYLVANIA
::)r"\ C '" /". \
,)1' ""L
PAUL and LOIS HOFFMAN,
BENJAMIN and LINDA BABSKI,
LOWELL and DIXIE BAKER, and
JIM WILSON
Plaintiffs
No, 06-910
Civil Action - Equity
v.
DAVID J, and ELIZABETH A, GABEL,
Defendants
ANSWER TO NEW MATTER
Plaintiffs, by and through their attorney, Debra K. Wallet, Esq., responds to the New
Matter pleaded by Defendants as follows:
33, No responsive pleading is required.
34, It is ADMITTED that in the summer of 2005 Defendants began construction of
what later became an auxiliary building with swings attached.
35. It is ADMITTED that Plaintiff Hoffman spoke to Defendant David Gabel
shortly after construction began and advised him that he needed prior approval for the
construction work begun in Gabel's yard. It is DENIED that Plaintiff Hoffman approached
Gabel in a "belligerent manner." To the contrary, this was the first conversation Plaintiff
Hoffman had with Defendant Gabel about this construction and Hoffman had every expectation
that the relationship would be one of cooperation. Previously, Defendant Gabel was
cooperative when Plaintiff Hoffman reminded him that parking his work truck in his driveway
overnight was not permitted by the C & R.
36. It is ADMITTED that Hoffman identified himself as the head of the
Association, but it is DENIED that Hoffman told Gabel that he had any authority to order him
to remove anything from Gabel's yard, To the contrary, the C & R do not give the
Association any such authority.
37, ADMITTED.
38. It is DENIED that Plaintiffs have improperly categorized the structure. To the
contrary, the structure has a floor, four walls, three windows, a doorway, and a roof. These
features are distinct characteristics of an auxiliary building.
39, Plaintiffs have NO INFORMATION on which to form a basis as to the truth of
whether or not Defendants contacted any individual associated with "Hampden Township" or
what such individuals may have said, Strict proof is required. Any township zoning
requirements or prohibitions are irrelevant to enforcement of the C & R.
40, This paragraph represents a LEGAL CONCLUSION to which no responsive
pleading is required, To the extent that it is deemed factual, the C & R prohibit on-lot
recreational facilities of any nature or type unless specifically exempted. Swings sets are not
specifically exempted,
41. This paragraph represents a LEGAL CONCLUSION to which no responsive
pleading is required. To the extent that it is deemed factual, the C & R prohibit on-lot
recreational facilities of any nature or type unless specifically exempted. Swings sets are not
specifically exempted.
2
42, It is ADMITTED this legal action involves only the Gable property. It is
ADMITTED that two owners are known to the Plaintiffs to have swings. Both of these swings
are on Princeton Road, Plaintiffs have no obligation to enforce the C & R against every
violator.
43, It is ADMITTED that Defendants have a trampoline and bow and arrow target.
Plaintiffs have no knowledge of whether or not these items are "movable."
44, This paragraph represents a LEGAL CONCLUSION to which no responsive
pleading is required. To the extent that it is deemed factual, the C & R prohibit on-lot
recreational facilities of any nature or type unless specifically exempted. Trampolines and
targets for arrows are not specifically exempted.
45, This paragraph represents a LEGAL CONCLUSION to which no responsive
pleading is required. To the extent that it is deemed factual, arrows can be deadly weapons.
Having a target for its use in a residential neighborhood creates a substantial danger. Children
play in the wooded area behind the Defendants' property and in line with Defendants' target.
The Defendants' on-lot recreational facility attracts neighborhood children, as many as eleven
at a time. It is not fenced to prevent unsupervised use,
46, This paragraph represents a LEGAL CONCLUSION to which no responsive
pleading is required. To the extent that it is deemed factual, the C & R prohibit on-lot
recreational facilities of any nature or type unless specifically exempted. Trampolines and
targets for arrows are not specifically exempted,
3
47, This paragraph represents a LEGAL CONCLUSION to which no responsive
pleading is required. To the extent that it is deemed factual, the C & R prohibit on-lot
recreational facilities of any nature or type unless specifically exempted. Trampolines and
targets for arrows are not specifically exempted.
48. It is ADMITTED that one other owner on Princeton Road has a trampoline.
Plaintiffs have no obligation to enforce the C & R against every violator.
49. This paragraph represents a LEGAL CONCLUSION to which no responsive
pleading is required. To the extent that it is deemed factual, the C & R prohibit on-lot
recreational facilities of any nature or type unless specifically exempted. Basketball hoops and
backboards are not specifically exempted.
50. This paragraph represents a LEGAL CONCLUSION to which no responsive
pleading is required. To the extent that it is deemed factual, the C & R prohibit on-lot
recreational facilities of any nature or type unless specifically exempted. Basketball hoops and
backboards are recreational facilities.
51. This paragraph represents a LEGAL CONCLUSION to which no responsive
pleading is required, To the extent that it is deemed factual, the C & R prohibit on-lot
recreational facilities of any nature or type unless specifically exempted. Basketball hoops and
backboards are not specifically exempted.
52. It is ADMITTED that there are other basketball hoops and backboards in the
neighborhood, Plaintiffs have no obligation to enforce the C & R against every violator.
4
53. To the extent that this paragraph represents some legal defense of "selective
enforcement" it is a LEGAL CONCLUSION to which no responsive pleading is required, To
the extent that it is deemed factual, it is ADMITTED that this legal action involves only the
Gable property, which is adjacent to the properties of the Plaintiffs. It is DENIED that
Plaintiffs have any legal obligation to enforce the C & R against all violators.
54. This paragraph represents a LEGAL CONCLUSION to which no responsive
pleading is required, To the extent that it is deemed factual, it is DENIED that this action was
brought for any other reason than to compel compliance with the C & R. Plaintiffs are
incurring substantial costs to bring the action,
55, It is ADMITTED that Defendants have retained legal counsel. It is DENIED
that this action constitutes "baseless claims," It is further DENIED that this action was
brought for any other reason than to compel compliance with the C & R.
WHEREFORE, Plaintiffs request that the Court enter judgment in their favor and
against Defendants, together with costs and such other further relief as may be just and proper
under the circumstances.
Respectfully submitted,
.,{J/AN.of(. ~
Debra K. Wallet, Esq,
24 N. 32nd Street
Camp Hill, PA 17011
(717) 737-1300
I.D,# 23989
Attorney for Plaintiffs
5
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PAUL and LOIS HOFFMAN,
MICHAEL LONG, LEE ENGLE,
BEN BABSKI, JOE BAKER,
JIM WILSON, SEAN FITZSIMMONS,
RAY WATKINS,
Plaintiffs
No, 06-910
Civil Action - Equity
v.
DAVID J, and ELIZABETH A. GABEL,
Defendants
VERIFICATION
I verify that the statements made in the foregoing document are true and correct
to the best of my knowledge, information and belief. I understand that false statements
made herein are made subject to the penalties of 18 Pa, C,S. !l4904, relating to
unsworn falsification to authorities,
4/3/06
DATE
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4/3/06
DATE
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PAUL and LOIS HOFFMAN,
BENJAMIN and LINDA BABSKI,
LOWELL and DIXIE BAKER, and
JIM WILSON
Plaintiffs
No. 06-910
Civil Action - Equity
v.
DAVID J. and ELIZABETH A. GABEL,
Defendants
PROOF OF SERVICE
I, Debra K. Wallet, Esquire, hereby certify that on April 3, 2006, I served a true and
correct copy of the ANSWER TO NEW MATTER by first class mail, postage pre-paid,
addressed as follows:
Michael L. Bangs, Esquire
Bangs Law Office
429 South 18th Street
Camp Hill, PA 17011
JJJJr.w. ~. W~
Debra K. Wallet, Esq.
24 N. 32nd Street
Camp Hill, PA 17011
(717) 737-1300
I.D.# 23989
Attorney for Plaintiffs
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MICHAEL L. BANGS, ESQUIRE
LD. NO. 41263
429 SOUTH 18m STREET
CAMP HILL, PA 17011
(717)730-7310
ATTORNEY FOR DEFENDANTS
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the following case:
(Check one)
( )
( X)
for JURY trial at the next term of civil court
for trial without a jury
---------------------------------------------------------------------------------------------------------------------
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DAVID J. AND ELIZABETH A. GABEL, )
Defendanffi )
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
PAUL AND LOIS HOFFMAN,
BENJAMIN AND LINDA BABSKI,
LOWELL AND DIXIE BAKER, AND
nM WILSON,
Plaintiffs
NO. 06-910
vs.
CIVIL ACTION - EQUITY
PRETRIALS will be held on
(briefs are due 5 days before pretrials)
(The party listing this case for trial
shall provide forthwith a copy of the
praecipe to all counsel, pursuant to
local Ru1e 214-1.)
Indicate the attorney who will try case for the party who files this praecipe:
MICHAEL L. BANGS, ESQUIRE, 429 South 18th Street, Camp Hill, PA 17011.
Indicate trial counsel for other parties if known:
DEBRA K. WALLET, ESQUIRE, 24 N. 32nd Street, Camp Hill, PA 17011
This case is ready for trial.
"",01 ~ 712-
MICHAEL L. BANG
Attorney for Defendants
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PAUL AND LOIS HOFFMAN,
BENJAMIN AND LINDA BABSKl,
LOWELL AND DIXIE BAKER AND
JIM WILSON,
DEFENDANTS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
DAVID J. AND ELIZABETH A. GABEL,
DEFENDANTS : 06-0910 CIVIL TERM
ORDER OF COURT
AND NOW, this
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day of August, 2006, a bench trial shall
commence at 1:30 p.m., Monday, September 18, 2006, in Courtroom Number 2,
Cumberland County Courthouse, Carlisle, Pennsylvania.
Byth~'
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FILED'Ot=FIGE
OF THE PROTHONOTARY
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PAUL and LOIS HOFFMAN,
BENJAMIN and LINDA BABSKI,
LOWELL and DIXIE BAKER, and
JIM WILSON,
PLAINTIFFS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
DAVID J. and ELIZABETH A. GABEL,
DEFENDANTS : 06-0910 CIVIL TERM
IN RE: ADJUDICATION IN EQUITY
ORDER OF COURT
AND NOW, this -:::2w1 day of October, 2006, the relief sought in plaintiffs'
complaint, IS DENIED.
~ra K. Wallet, Esquire
For Plaintiffs
~haeIL. Bangs, Esquire
For Defendants
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PAUL and LOIS HOFFMAN,
BENJAMIN and LINDA BABSKI,
LOWELL and DIXIE BAKER, and
JIM WILSON,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
DAVID J. and ELIZABETH A. GABEL,
DEFENDANTS
06-0910 CIVIL TERM
IN RE: ADJUDICATION IN EQUITY
OPINION AND ORDER OF COURT
Bayley, J., October 2, 2006:--
On February 15, 2006, plaintiffs, Paul Hoffman, Lois Hoffman, Benjamin Babski,
Linda Babski, Lowell Baker, Dixie Baker and Jim Wilson, filed a complaint against
defendants, David J. Gabel and Elizabeth A. Gabel. Plaintiffs and defendants all live in
homes located on lots in the development of Bunker Hills, Hampden Township,
Cumberland County. The development contains 53 single family homes. Plaintiffs
seek an order directing defendants to remove from their property what they describe as
an auxiliary building, a basketball backboard and hoop, trampoline and bow and arrow
target. An adjudication was conducted on September 18,2006.
Defendants moved into their home at 6351 Bennington Road in the fall of 2003.
They have children who are now seven and two. Defendants removed from their
backyard a metal swing set, containing five swings and a sliding board, which was left
by the prior owner. They constructed a large wooden playhouse on an elevated deck
supported by four wooden columns sunk into concrete in the back lawn. The sides of
the playhouse are plywood. There is an open entrance, three windows and a finished
peaked roof. A large wooden beam extends from near the top of one side of the
,
06-0910 CIVIL TERM
playhouse to a wooden brace, with two columns extending to the ground. Three swings
hang from the beam. There is also a small moveable trampoline in the backyard. It is
circular, sits on metal legs and is enclosed with metal mesh protectors that are a few
feet high. A moveable target is in the rear of the yard in front of some woods. David
Gabel shoots arrows from a bow at the target. In their front yard, defendants sank a
metal pole into concrete. There is a metal backboard with a basketball hoop extending
from the top of the pole.
All of the properties in Bunker Hills are subject to a recorded Declaration of
Covenants and Restrictions. That document provides that the covenants and
restrictions "are hereby established for the purpose of enhancing and protecting the
value, desirability, marketability and attractiveness of the individual lots shown on said
plan . . . ." The document contains the following:
2. LAND USE AND BUILDING TYPE
All lots as indicated in paragraph 1 hereof shall be used solely for
single family residential purposes. Not more than one (1) single family
dwelling house, which shall not exceed two and one-half (2 ~ stories in
height, shall be constructed on each lot. No auxiliary buildings or
detached garages shall be permitted. All dwelling houses shall have an
attached private garage for not less than one (1) and no more than three
(3) cars. . .. No building shall be erected or placed on any lot which
shall have an exterior finish of . . . plywood above-grade. (Emphasis
added.)
***
5. NUISANCES
No noxious or offensive activity shall be carried on or upon
any lot or shall anything be done thereon which may be or may
become an annoyance or nuisance to the neighborhood. While not
intended to be inclusive, the following activities are specifically
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06-0910 CIVIL TERM
deemed to be nuisances and are prohibited absolutely unless prior
written approval is obtained form [sic] the Architectural Control
Committee as provided hereinafter: the use of motorcycles, motorbikes,
all-terrain vehicles, motor-driven cycles, motor-scotters [sic], motorized
pedacycles, 3-wheelers, and any like or similar form of motorized
propulsion, as well as any motor vehicle, whether or not same is required
to be licensed by the Commonwealth of Pennsylvania; the use and
maintenance of ramps or any devices to facilitate skateboarding and
the like; on-lot recreational facilities of any nature or type unless
specifically exempted herein.1 (Emphasis added.)
* * *
9. OUTDOOR STORAGE AREAS
No auxiliary buildings shall be permitted. . .. (Emphasis
added.)
* * *
18. ARCHITECTURAL CONTROL COMMITTEE
All new construction or any subsequent exterior renovation or
addition to improvements on said lots shall be subject to the express
prior written approval of the Architectural Control Committee, and no
construction shall commence prior to obtaining such approval. . . .
(Emphasis added.)
Section 19 of the Declaration of Covenants provides that:
Violation of any of the foregoing restrictions, covenants and conditions
may be redressed by the owner of any lot on said subdivision plan by
action in equity for injunctive relief or such other remedy allowed by law.
In Buck Hill Falls Company v. Press, 791 A.2d 392 (Pa. Super. 2002), the
Superior Court of Pennsylvania stated:
Under Pennsylvania law, land use restrictions, while not favored, are
enforceable. In addition, land use restrictions must be strictly
1 Paragraph 12 provides: "A private in ground or above ground swimming pool with or
without an attached bath house shall be permitted provided that it receives the prior
approval of the Architectural Control Committee."
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06-0910 CIVIL TERM
construed and will not be expanded by implication. (Emphasis
added.) (Citations omitted.)
In Baumgardner v. Stuckey, 735 A.2d 1272 (Pa. Super. 1999), the Superior
Court, citing Great Atlantic and Pacific Tea Company, Inc. v. Bailey, 421 Pa. 540
(1966), noted that the requirement for strict construction of land use restrictions means
that "nothing will be deemed a violation of such a restriction that is not in plain disregard
of its express words."
Defendants did not seek the approval of the Architectural Control Committee
before putting any of the challenged items on their property. They did not have to
because none of the challenged items constituted new construction or additions or
improvements. Plaintiffs maintain that the playhouse/swing set is an auxiliary building
prohibited by Paragraphs 2 and 9 in the covenants and restrictions. The auxiliary
building referred to in Paragraph 9 is an outdoor storage area, which the
playhouse/swing set is not. An auxiliary building referred to in Paragraph 2 is not
defined in the Covenants and Restrictions. Merriam Webster's Collegiate Dictionary,
Tenth Edition (1993), defines a "building," as a "roofed and walled structure built for
permanent use (as for a dwelling)." The playhouse/swing set is not an auxiliary
building.
Plaintiffs further maintain that the playhouse/swing set is a recreational facility
which constitutes a nuisance under Paragraph 5 of the Covenants and Restrictions. A
recreational facility is not defined in the document. Webster's defines "recreation" as
"restoration to health, to create anew, restore, refresh, to create: refreshment of
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, 06-0910 CIVIL TERM
strength and spirits after work; a means of refreshment or diversion; hobby." "Facility"
is defined to include, "something (as a hospital) that is built, installed, or established to
serve a particular purpose." A playhouse/swing set is used by children to play. It is not
a recreational facility or otherwise a nuisance.
Plaintiffs maintain that the basketball hoop, the trampoline and the moveable
target are recreational facilities and thus prohibited nuisances under Paragraph 5.2 The
moveable bow and arrow target is hardly a recreational facility. Nor are the basketball
hoop and the trampoline recreational facilities. They are sports apparatus. Webster's
defines "apparatus" to include, "a set of materials or equipment for a particular use."
Such apparatus is not in plain disregard of whatever the meaning is of a recreational
facility. We cannot expand that definition of a nuisance by implication.
For the foregoing reasons, the following order is entered.
ORDER OF COURT
AND NOW, this
complaint, IS DENIED.
~
day of October, 2006, the relief sought in plaintiffs'
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2 There are more than a half a dozen other basketball hoops in the neighborhood.
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06-0910 CIVIL TERM
Debra K. Wallet, Esquire
For Plaintiffs
Michael L. Bangs, Esquire
For Defendants
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