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HomeMy WebLinkAbout06-2466NEVIN L. MYERS and PAMELA : IN THE COURT OF COMMON PLEAS OF S. MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. : NO. GL> ' 2 yin - CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION -EQUITY HAROLD E. DEARDORFF, JR., Defendants NOTICE TO PLEAD 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 (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 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 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 32 South Bedford Street Carlisle, Pennsylvania 717-249-3166 NEVIN L. MYERS and PAMELA : IN THE COURT OF COMMON PLEAS OF S. MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. NO. DL- ?2qb b CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION -EQUITY HAROLD E. DEARDORFF, JR., Defendants COMPLAINT Plaintiffs, Nevin L. Myers and Pamela S. Myers, by their attorneys, Broujos & Gilroy, P.C., set forth the following: 1. Plaintiffs Nevin L. Myers and Pamela S. Myers are husband and wife and adult individuals residing at 1290 Brandt Road, Mechanicsburg, Monroe Township, Cumberland County, Pennsylvania. 2. Defendant Township of Monroe (Township) is a township of the second class located in Cumberland County, Pennsylvania, having its principal office at 1220 Boiling Springs Road, Mechanicsburg, Cumberland County, Pennsylvania. 3. Defendant Harold E. Deardorff, Jr. (Deardorff) is an adult individual with a mailing address of Post Office Box 368, Lewisberry (York County), Pennsylvania 17339. 4. Deardorff is the owner of a parcel of real estate located within the Township of Monroe at 1294 Brandt Road, Mechanicsburg, Pennsylvania (Subject Premises). 5. Plaintiffs are the owners of the home where they reside at 1290 Brandt Road, Mechanicsburg, Pennsylvania (Plaintiffs' Home), and Plaintiffs' Home is immediately adjacent to the Subject Premises. 6. Both Plaintiffs' Home and the Subject Premises are located in the Agricultural Zone of Monroe Township pursuant to the Zoning Ordinance (Ordinance) of Monroe Township. 7. Plaintiffs believe that Deardorff is constructing a duplex-style residential dwelling on the Subject Premises and such dwelling is not permitted within an Agricultural Zone pursuant to Section 201 et seq of the Ordinance. 8. Deardorff 's use of the Subject Premises as a duplex-style residential dwelling is in violation of the Ordinance. 9. The Township filed an equity action against Deardorff at Docket No. 05-5109 seeking a preliminary injunction and seeking to enforce the appropriate provisions of the Ordinance. 10. Deardorff filed a Zoning Appeal with the Monroe Township Zoning Hearing Board (Board) seeking a variance in order to use the Subject Premises for a duplex-style residential dwelling. 11. Deardorff and the Township entered into an Agreement dated January 12, 2006 (Agreement) whereby the Township purportedly gave Deardorff permission to use the Subject Premises as a duplex residential dwelling. 12. Plaintiffs did not become aware of the Settlement Agreement until a copy of the Agreement was faxed to Plaintiffs' counsel on February 6, 2006. 13. The Township has no legal authority to enter into an Agreement that would, essentially, grant Deardorff a variance from the Zoning Ordinance. 14. By letter from Plaintiffs' counsel to the Township Solicitor on February 6, 2006, Plaintiffs gave the Township notice that they would institute their own personal enforcement action pursuant to Section 700.5 of the Ordinance in the event the Township would not take appropriate action as required by law. 15. The Township Solicitor verbally advised legal counsel for the Plaintiffs that the Township was not going to respond to the Plaintiffs' February 6, 2006 request. 16. Deardorff has withdrawn his request for a variance which was pending before the Board. 17. The Township has an affirmative duty to enforce its Zoning Ordinances to ensure the integrity of the Ordinance and to also ensure protection of the residents of the Township. 18. The Township has no authority to essentially grant Deardorff or any other individual a variance from the Ordinance; the Board has exclusive authority in granting a variance. 19. The Plaintiffs are interested in this case because Plaintiffs' Home is immediately adjacent to the Subject Premises. 20. Plaintiffs will suffer damages if the Subject Premises is allowed to be used as a duplex residential dwelling as follows: A. The value of Plaintiffs' home will be reduced and/or not increase in value as it might normally would under the circumstances if Plaintiffs' single family dwelling is located next to a residential duplex property. B. Plaintiffs will lose the quiet enjoyment of a single family residential neighborhood if a multi-family residential dwelling is immediately adjacent to Plaintiffs' home. C. Such other damages as Plaintiffs' may assert at trial. 21. Plaintiffs were not involved in the Agreement and were surprised when the Township entered into the Agreement with Deardorff in that Plaintiffs always understood the Township was going to pursue enforcement of the Ordinance and that the only way Deardorff could maintain a duplex-style residential dwelling at the Subject Premises was for Deardorff to obtain a variance from the Board. 22. The subject property as it is being developed contains three driveways which is in violation of Section 308.1 of the Ordinance and Deardorff has not obtained a variance for three driveway. 23. The Township has discontinued the action it riled against Deardorff referenced in paragraph 9 above. COUNTI NEVIN L. MYERS AND PAMELA S. MYERS VS. TOWNSHIP OF MONROE MANDAMUS ACTION 24. Paragraphs 1 thru 23 are incorporated herein by reference thereto. 25. The Township has an affirmative duty to enforce the Ordinance by requiring Deardorff to eliminate one driveway or obtain a variance from the Ordinance. 26. The Board of Supervisors of the Township of Monroe has an affirmative duty to enforce the Ordinance and have no ability to enter into any type of agreement that would essentially grant a landowner a variance. 27. Plaintiffs advised the Township at least 30 days prior to the commencement of this action. WHEREFORE, Plaintiffs request your Honorable Court to compel the Township of Monroe and its Supervisors to perform its duty and issue a zoning violation notice to Deardorff and to further take such action as to prohibit Deardorff from maintaining a duplex residential dwelling at the Subject Premises unless Deardorff is granted a variance for such use by the Board and to prohibit Deardorff from maintaining three driveways at the Subject Property unless a variance is granted. COUNT II NEVIN L. MYERS AND PAMELA S. MYERS VS. HAROLD E. DEARDORFF, JR. CLAIM PURSUANT TO SECTION 700.5 OF MONROE TOWNSHIP ZONING ORDINANCE 28. Paragraphs 1 thru 27 are incorporated herein by reference thereto. 29. Plaintiffs have a personal cause of action against Deardorff where Deardorff is in violation of the Ordinance pursuant to Section 700.5 of the Ordinance. 30. Plaintiffs seek an injunction against Defendant Deardorff to prevent Defendant Deardorff from maintaining a duplex-style residential dwelling at the Subject Premises unless Deardorff is granted a variance from the Ordinance by the Board. 31. Plaintiff seeks an injunction against Defendant Deardorff to prevent Defendant Deardorff from maintaining three driveways at the Subject Premises unless Deardorff is granted a variance from the Ordinance by the Board. WHEREFORE, Plaintiffs request your Honorable Court to issue an Order enjoining Deardorff from using the Subject Premises as a duplex-style residential dwelling and from maintaining three driveways at the Subject Premises. Respectfully submitted, W ubert . Gilroy, Esquire ID #2 43 Broujos & Gilroy, P.C. 4 N. Hanover Street Carlisle, PA 17013 I verify that the statements in the foregoing pleading are true and correct. 1 understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities. ?pr?? 6f', ZED D tae Date l NEVIN L. MYERS, P . mtiff PAMELA S. MYERS, aintiff "? C? uz ?? ? -,.. R., =? fi -2 ? w ?•,,?? ??J vz ;? ,,, r? ;=- Z -? .,? % Is NEVIN L. MYERS and PAMELA S. MYERS, Plaintiff v. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY NOTICE OF APPEARANCE Please enter our appearance in the above-captioned matter on behalf of Monroe Township. Dated: May 17, 2006 Dated: May 17, 2006 Respectfully Submitted, By: 45-a 4s D. Bogar squire Solicitor, Monz'Qg Township One West Main Street Shiremanstown, PA 17011 Supreme Court I.D. No. 19475 By: a('c e B. Hipp, Esquire Sol'ci or, Monroe Township One We t Main Street Shiremanstown, PA 17011 Supreme Court I.D. No. 86556 I % NEVIN L. MYERS and PAMELA S. MYERS, Plaintiff V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the Township of Monroe's Entry of Appearance this date by sending the same to the persons and in the manner indicated below: Service by hand delivery addressed as follows: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Attorney for Plaintiffs Service by first class mail addressed as follows: Dennis J. Shatto, Esquire CLECKNER & FEAREN 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108 Attorney for rold E. Deardorff, Jr. By: Je fer B. Hipp, Esquire Pa. I.D. No. 86556 Solicitor for Monroe Township One West Main Street Shiremanstown, PA 17011 (717) 737-8761 May 17, 2006 FLED- opcFlor OF THE PE07WO,uVTAQy 05-/7 - o& Lrnb - &, PA 00 Ij a.. NEVIN L. MYERS and PAMELA S. MYERS, Plaintiff V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY ACCEPTANCE OF SERVICE As of May 17, 2006, I accept service of the Complaint on behalf of Monroe Township and certify that I am authorized to do so. May 17, 2006 By: Jenn f B. Hipp, Esquire Solicit r, Monroe Township One West Main Street Shiremanstown, PA 17011 Supreme Court I.D. No. 86556 NEVIN L. MYERS and PAMELA IN THE COURT OF COMMON PLEAS OF S. MYERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the Township of Monroe's Acceptance of Service this date by sending the same to the persons and in the manner indicated below: Service by hand delivery addressed as follows: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Attorney for Plaintiffs Service by first class mail addressed as follows: Dennis J. Shatto, Esquire CLECKNER & FEAREN 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108 Attorney for rol E. Deardorff, Jr. By: Jen i er B. Hipp, Esquire Pa. I.D. No. 86556 Solicitor for Monroe Township One West Main Street Shiremanstown, PA 17011 (717) 737-8761 May 17, 2006 rn `,.- `L? L-! ? ' f? .. ;. ? ?t 1 ?..t - ?, .: L. ?` _ ._ ?{ ??_ ?^ _-i -? NEVIN L. MYERS and PAMELA : IN THE COURT OF COMMON PLEAS OF S. MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : NO. 06-2466 CIVIL ACTION N O T I C E You have been sued in court. If you wish the claims set forth in the following pages, y within twenty (20) days after this complaint a: served, by entering a written appearance perso: attorney and filing in writing with the court objections to the claims set forth against you that if you fail to do so the case may proceed judgment may be entered against you by the cou, notice for any money claimed in the complaint claim or relief requested by the plaintiff. Y, or property or other rights important to you. TERM EQUITY to defend against )u must take action id notice are rally or by tour defenses or You are warned without you and a -t without further ? r for any other u may lose money YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO 0 OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU C Cumberland County Bar Associat: 32 S. Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 (800) 990-9108 By: Pa. X.D. No James D. Bo One West Ma (717) 737-M Solicitor foi ONCE. IF YOU OR TELEPHONE THE GET LEGAL HELP. IPP, Esquire 86556 r Law Offices Street PA 17011 Monroe Township NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants II IN THE COURT OF COMMON PLEAS OF CUMBERLAND CO TY, PENNSYLVANIA I NO. 06-2466 CI?IL TERM CIVIL ACTION -'EQUITY AND NOW comes the Township of Monroe, by nd through its Solicitors, Jennifer B. Hipp, Esquire, and Jam s D. Bogar, Esquire, and files this Answer and New Matter nd avers as follows: 1. Denied. Monroe Township (hereinafter, the "Township") is without sufficient information and knowledg to form an opinion as to the truth of the averments in Pa agraph No. 1. 2. Admitted. 3. Denied. The Township is without suffi ient information and knowledge to form an opinion as to the trut of the averments in Paragraph No. 3. 4. Admitted. By way of further answer, t e Township relied upon the Cumberland County tax assessment recor s in confirming that Harold E. Deardorff, Jr. (hereinafter, "De rdorff") is the owner of real property known and numbered as 12!4 Brandt Road, Mechanicsburg, Pennsylvania. 5. Admitted in part, denied in part. It 's admitted that Nevin L. Myers and Pamela S. Myers (hereinafter, "Myers and Myers" or "Plaintiffs") are the owners of real property known and numbered as 1290 Brandt Road, Mechanicsburg, way of further answer, Monroe Township relied County Recorder tax assessment records in mak confirmation. By way of denial, the Township sufficient information and knowledge as to fo the truth of the averment that the Plaintiffs Brandt Road, Mechanicsburg, Pennsylvania. nsylvania. By on the Cumberland this without an opinion as to side at 1290 6. Admitted in part, denied in part. Itlis admitted that the real properties located at 1290 and 1294 B?andt Road, Mechanicsburg, Pennsylvania are located in the Township's Agricultural Zone (A). By way of denial, the ownship is without sufficient information and knowledge to form a opinion as to the truth of the averment that the Plaintiffs' hom is at 1290 Brandt Road, Mechanicsburg, Pennsylvania. 7. Denied. The averments set forth in P1 intiffs' Paragraph No. 7 are conclusions of law to required. 8. Denied. The averments set forth in Paragraph No. 8 are conclusions of law to which required. 9. Admitted in part, denied in part no response is ffs' no response is it ?s admitted that the Township filed an Action in Equity against Cumberland County Docket No. 05-5109. Any infe Township believes an ongoing zoning violation i f at e that Monroe present at Deardorff's property at 1294 Brandt Road, Pennsylvania is specifically denied . By way of further answer, the Township and Deardorff entered into a Sett ement Agreement which formally concluded the litigation filed at Docket No. 05- 5109. 10. Admitted in part, denied in part. I? is admitted that Deardorff filed an Appeal to the Monroe Townsh p Zoning Hearing Board. It is specifically denied that Deardor f's Appeal requested only a variance. By way of further nswer, Deardorff withdrew his Application to the Zoning Hearing Board. 11. Admitted in part, denied in part. I is admitted that the Township and Deardorff entered into a Sett ement Agreement dated January 12, 2006 which resolved the liti ation which was previously pending at Docket No. 05-5109. Any inference that the Township acted in violation of its Zoning Ordinance provisions or in a manner to derogate its Zoning Ordinance provisions is specifically denied. 12. Denied. The Township is without suff'cient knowledge to form an opinion as to the truth of the averm nts in Paragraph No. 12. By way of further answer, on February , 2006, Pamela S. Myers filed a record request form with the Town hip requesting a copy of the Settlement Agreement. The Township provided Pamela S. Myers with a copy of the Settlement Agreemen on February 6, 2006. A copy of the Monroe Township Record Re est Form with a receipt noting when the request was satisfied is attached hereto and incorporated herein as Exhibit "A". 13. Denied. The averments set forth in Paragraph No. 13 are conclusions of law to which no response islrequired. 14. Admitted in part, denied in part. I? is admitted that Plaintiffs, attorney issued correspondence to he Township dated February 6, 2006 setting forth the Plaintiffs, belief that Deardorff was in violation of certain Monroe Township zoning ordinance provisions and that Plaintiffs might institute their own legal action. Any inference that the Town hip acted in violation or in derogation of its Zoning Ordin nce provisions is specifically denied. 15. Admitted in part, denied in part. I is admitted that the Township, through its Solicitor, verbally dvised Plaintiffs, attorney that the Township did not intend to t ke any further action in response to the February 6, 2006 cor espondence. Any inference that the Township is acting in violation of its Zoning Ordinance provisions is specifically denied. 16. Admitted. 17. Denied. The averments set forth in P ragraph No. 17 are conclusions of law to which no response is equired. 18. Denied. By way of further answer, th averments set forth in Paragraph No. 18 are conclusions of la to which no response is required. 19. Denied. The Township is without su ficient knowledge to form an opinion as to the truth of the ave ents in Paragraph No. 19. 20(A). Denied. Monroe Township is without sufficient knowledge to form an opinion as to the truth of the averments in Paragraph No. 20(A) and strict proof thereof i3 demanded at trial of this cause, if relevant. 20(B). Denied. Monroe Township is witho t sufficient knowledge to form an opinion as to the truth o the averments in Paragraph No. 20(B) and strict proof thereof i demanded at trial of this cause, if relevant. 20(C). Denied. Monroe Township is witho t sufficient knowledge to form an opinion as to the truth o the averments in Paragraph No. 20(C) and strict proof thereof i demanded at trial of this cause, if relevant. 21. Denied. The Township is without sufficient knowledge to form an opinion as to the truth of the aver nts in Paragraph No. 21. 22. Denied. The Township is without suff -!ient knowled e to form an opinion as to the truth of the averm No. 22. 23. Admitted. It is admitted that the To Praecipe for Withdrawal of Complaint with this F March 20, 2006 withdrawing the action commenced 5109. g is in Paragraph nship filed a .onorable Court on at Docket No. 05- COUNT I 24. Paragraph Nos. 1 through and including 23 of Township's Answer hereinabove are incorporated herein by (Deference thereto. 25. Denied. The averments set forth in Oaragraph No. 25 f are conclusions of law to which no response is required. 26. Denied. The averments set forth in aragraph No. 26 are conclusions of law to which no response is required. 27. Admitted. WHEREFORE, Monroe Township respectfully r quests that this Honorable Court dismiss, with prejudice, the C mplaint filed by Plaintiffs, deny Plaintiffs' request for an Or er in the nature of a Writ of Mandamus and, further, grant and ender such other relief to Monroe Township as is appropriate un er the circumstances. COUNT II 28. Paragraph Nos. 1 through and includ Answer hereinabove are incorporated herein by 29. Denied. The Township is without su to form an opinion as to the truth of the ave No. 29. 27 of Township's ference thereto. cient knowledge nt in Paragraph 30. Denied. The Township is without suff cient knowledge to form an opinion as to the truth of the averm nt in Paragraph No. 30. 31. Denied. The Township is without su to form an opinion as to the truth of the ave No. 31. WHEREFORE, Monroe Township respectfully Honorable Court dismiss, with prejudice, the CI Plaintiffs, deny Plaintiffs' request for an Orl' of a Writ of mandamus and, further, grant and relief to Monroe Township as is appropriate un circumstances. XW MATTER ficient knowledge ent in Paragraph sts that this aint filed by in the nature er such other the 32. Paragraph Nos. 1 through and includi g 31 of the Township's Answer hereinabove are incorporated herein by reference thereto. 33. Monroe Township granted a Zoning Per it to Deardorff, same being dated May 2, 2002, being known and umbered as Zoning Permit No. 2002-37, to construct a single famil residential home in the Township's Agricultural Zone (A). A cc of Permit No. 2002-37 is attached hereto and incorporated her in as Exhibit .B11. 34. In accordance with the time extension issued by the Township on March 8, 2005, Zoning Permit No. 20 2-37 expired on September 1, 2005. 35. As of September 1, 2005, Deardorff had not completed construction of the structure located at 1294 ',Brandt Road, Monroe Township. 36. As of September 1, 2005, Deardorff d substantially completed construction of the structure. 37. Gregory R. Rogalski, P.E. (herein ft r, "Rogalski"), Monroe Township Zoning Officer, issued a stop ork order to Deardorff by correspondence dated September 13 2005. 38. Rogalski issued the stop work order iven that Deardorff had not completed construction as oflSeptember 1, 2005, the date of expiration of Zoning Permit No. 20 2-37. 39. By correspondence dated April 19, 20 5, Plaintiff Nevin L. Myers requested certain information from Ro alski. A copy of Nevin L. Myers' April 19, 2005 correspondence is attached hereto and incorporated herein as Exhibit "C" 40. By correspondence dated May 16, 2005, Rogalski responded to Plaintiff Nevin L. Myers' corresp dence regarding certain information requested as to the propert at 1294 Brandt Road, Monroe Township. A copy of Mr. Rogalski' May 16, 2005 correspondence is attached hereto and incorpora ed herein as Exhibit "D" 41. After receiving Rogalski's dated May 16, 2005, Plaintiffs did not take any legal action. 42. On or about February 6, 2006, Plaintiffs filed a public record request with the Township requesting all copy of the Settlement Agreement entered into between the Township and Deardorff regarding litigation previously pending at Cumberland County Docket No. 05-5109. See Exhibit "A". 43. On or about February 6, 2006, Monroe Township provided a copy of the Settlement Agreement to Plaintif s. See Exhibit "A„ 44. At no time during the pendency of Docket No. 05-5109, did Plaintiffs intervene. 45. Plaintiffs did not intervene in Dee the Monroe Township Zoning Hearing Board. 46. Plaintiffs did not file an appeal settlement agreement with the Monroe Township Board or the Court of Common Pleas of Cumber 47. Plaintiffs' Complaint is barred by laches. 48. Plaintiffs' Complaint is barred by limitations. WHEREFORE, Monroe Township respectfully Honorable Court dismiss, with prejudice, the Plaintiffs, deny Plaintiffs' request for an action filed at f's appeal to the written Hearing County. doctrine of statute of that this filed by in the nature of a Writ of Mandamus and, further, grant and relief to Monroe Township as is appropriate circumstances. Dated: May 31, 2006 Supreme Hipp, Esquire onroe Township n Street n, PA 17011 t I.D. No. 86556 Dated: May 31, 2006 By: ( 4'zag / render such other the Respectfully Submitted, By: I`Y Jenni er B. Solic tor, One West Ma Jartes D. f Solicitor, One West N Shiremanst Supreme Cc Esquire roe Township 1, PA 17011 I.D. No. 19475 MONROE TOWNSHIP RECORD REQUEST FOR PHONE NAME ADDRESS on back) DESCRIPTION OF RECORDS (For more space, INSTRUCTIONS: (Please circle one) SIGNATURE: (When request is made, SICK-UP J , MAIL For Office Use Only: Copies 125 TOTAL COST Postage DATE REQUEST FULFILLED - (,-0 INITIALS OF STAFF MEMBER V,%vv\ DATE INFORMATION: Picked up_X_ APPLICATION FOR ZONING (PERMIT Township of Monroe, Cumberland Co nty, Pennsylvania DATE v '', 1. PERMITNO. Cumberland County Tax Assessment Parcel No. 4Q -m..^^ Application (IN TRIPLICATE) is hereby made to the Township for a Zoning Zoning Ordinance, dated June 30, 1970, and any amendmegts )hereloJty toe Property - f,///?1 The undersigned applicant hereby applies for a permit to:u Erect a structure I, 01-. Add to a structure Alters structure Erect a sign Change a use EXISTING / ll•?/ families PROPOSED stories t 70 f?- c material " p '$'r i+ f 5D_ 7- type _ b/r j. Submitted herewith (IN TRIPLICATE) is a scale drawing, fully dimensioned, of existing structure, , -4- In conformity with the requirements of g described work: Estimated cost of proposed work: $ ! ?A e v, t/ PRESENT USE OF PROPERTY: Orr ?l t~. lot showing proposed work and/or Use of adjoining lot or lots is _/) fC, 1,(rstz 1/, 2 ?/"G / / pf1 e " Name of: Phone # l ) l 59-5/, /!7-3-7 Lessee _ t AA ddress Owner Hd a ? OY Address Architect Address Contractor Address The construction applied for herein shall be accomplished by, Date: If not, this Zoning Permit shall be void. ?e, Fee of paid ?K Y J E% .r- Ild / Zoning Off' r Date: v./?. G Copy for. Monroe Twp. Cumberland Co. If applicable: Sewage Permit No. r date Issued: EXHIBIT 'r> r by which SEO: V 7 L MONROE TOWNSHIP ZO hh CERTIFICATE OF USE PE PERMIT# ?rt -37 D G TE o?i? r APPLICANT ` Y ADDRESS IOWLI , ur PARCEL # a a - ^ aid 3 zoNED rj?L) v TYPE OF USE lr7 S! E LOT SIZE ?/YZ°i /BLDG. SIZE -t COND Oj?TS OR REQUIREMENTS / c_ -10 U r G !70'43 FEE: $ D () APPOVED () ZONING OFFICER Q DA DENIED ANY CHANGES IN THE USE AND OCCUPANCY AS DESI APPROVAL OF THE PROPER AUTHORITY, WILL AUTO CERTIFICATE NULL AND VOID. THIS CERTIFICATE OF USE PERMIT IS DENIED FOR THE NATED ABOVE WITHOUT TICALLY RENDER THIS OLLOWING REASON: 0 i tp v a m ,r p? 0 ?? woo, 0 "won a c T Ta` W ? =y n 3 ? 'v m m .l Z woo r? ? .. S + ran vv z ZT c? Z O 70 .-r m Apti119, 2065 '•i oregory R. Rogabla???::•? . ": •.: Zoning Officer for 1270 Boil ' Ming. 3P?` Mwhnticsburg, PA vmm PACs Dear W. Rog iW.' I am writiq sectkm 26115 of on this property sit dweilirgs. The bui zoning in any way, dwelling and dwiml duplex. It is my be each outer or vrlth plus to mkeL W& As a touter hereby raquatiog t the bulldhtg. If the proceed to eafrce lsyout to a single 5 build'mg aoataias 4 garages. This is no Under the: am copies of any fsmly dwel m as owner to you com If you w (717) 787.9843. I took thsabove-capdonodproperty. , hip Zoning Or baw, two fiat ned "Agiim*ural," Tian ztwing OA•Cht}7toptlCy.? gtteltioAdpee flOrMO[e, this building !wt btea J nuab. Inns aurmtt layau;tlms i eoumodot between the two dwt Witte, Ifeei.on the owner. St x as w04 as an VA ettioa this propatiy to iacl out of a siaglefhmily d ,zoning ordinawn aid rega hg more. As per the owner's and 5, if mt lt,.bedrooma It tarn regw stiag copies of your k c the *ww to eaforae returnin8 questing copies of all future torte to disma this letter, please feel 17) 2581624 iA the eveaiags. rtt t so r'espom to this letter. Very tqy yours, . Nevin L. Myers Pmpetty owner of 1290 Brandt 7 EXHIBrr ou know, am mum to telliW are probfbhed perdu single fa* taotttply with the sited u s tangle fV* 4 is wtgmdoaably a p in the top floor wfth point in the tlttttre, Property owner, I am tin entire Wvior pf dog, you roust wowner to Mm the mit dmwing, this ? ooataina 4 satmote doasmmflt son testy to a Augle :e from the to will me at rsNNOw wssoanres wc. CONUAMG ENGINEERS 431 RagroaCAve Camp MII. PA 17011.5602 TN' 717.975.6481 PK ?17.975-6480 1fi f. May Y' "1 a Nevin I?• °3'?n'j?,• • , 1290 Bn•, . .i?;}p:??. 14tech ::Y,A+.' 'Ile(.'? RE: Dear c Pmso .. ? o°. intent Road, in Mo of use The the pr me at Very I. r Cc: Cumberland County, sled April 29, 2005 regarding the eapond to the vatious issues that information regarding enforceme the public information milucst fil Ihoun, P,C, and F-R. Ma tsolf, E<. which permitted construction of y 2, 2002 prior to the enactment s such, the only inspection that I on as required by Section 701.4 submitted with the original zon Ike no further action regarding a of the final cerdf vale of psC We, The applicant bas extend e to obtain a certificate of use I into a four unit apartment boil L will be happy to provide you will 14 Brandt Road. 9 you have any Igi or at the Township Building at n80 er Ip Board of Supervisors Esq. (fax) EXHIBIT on referenced property, the Pe been raised As we have documentation has been by the Law Firm of Serratelli, No additional iofofmation is structure located at 1294 Brandt re Uniform Construction Code ins on the property is the he Zorling ordinance, N the permit application, a certificate s particular property, with the Krvadon and.the issuance of a his Zoning permit until pr to that date, or future g will result in future any future correspondence with estion. ulease feel free to call I verify that the statements made in thi Answer and New Matter are true and correct. I understand th t unsworn statements herein are made subject to the pen lties of 18 Pa. C.S.A. Section 4904, relating to unsworn fals'fication to authorities. DATE: May U' , 2006 Kevin R. Mi leer, Chairman Board of Su ervisors Monroe Town hip NEVIN L. MYERS and PAMELA S. MYERS, Plaintiff V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT : CUMBERLAND C NO. 06-2466 CIVIL ACTION CERTIFICATE OF SERVICE We hereby certify that we are this date the Township of Monroe's Answer and New Mat sending the same to the persons and in the below: Service by hand delivery addressed COMMON PLEAS OF Y, PENNSYLVANIA TERM EQUITY Irving a copy of this date by indicated follows: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 and Pamela S. Service by first class mail addressed as follows: Dennis J. Shatto, Esquire CLECKNER & FEAREN 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108 Attorney for Nevin L Myers Attorney for Harold E. Dea By: ff, Jr. J6r?nifer B. Hipp Esquire Pa. I.D. No. 865 6 Solicitor for Monroe Township One West Main St eet Shiremanstown, P 17011 (717) 737-8761 May 31, 2006 ?...? ?' o ?: _:_ -„ r;; ? ? ?: c ?v !'7 ? - ? , _ ?.:? ?? ?? ? i ? ; ?< NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs VS. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants TO THE PROTHONOTARY: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO.06 _ j c/(o6 CIVIL TERM CIVIL ACTION -EQUITY PRAECIPE Please reinstate the attached Complaint in the above case, and kindly refer this Complaint to the Cumberland County Sheriff for referral to the York County Sheriff for service on Harold E. Deardorff, Jr. at 981 Pinetown Road, Lewisberry, York County, Pennsylvania. ak Date Hubert X. G' oy, Esquire Attorney f Defendant Broujos Gilroy, PC 4 North Cover Street Carlisle, PA 17013 717-143-4574 rs9 c s;zr _ri -' rim V % NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants TO: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Attorney for Plaintiffs DATE OF NOTICE: June 22, 2006 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 (800) 990-9108 By: JENNIF R B. HIPP, ESQUIRE Pa. I.D. No. 19475 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Attorney for Monroe Township V CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing Notice as required by Pa. R.C.P. 237.1 upon the following named individual this day by depositing same in the United States Mail, Certified Mail, Return Receipt Requested, at Shiremanstown, Pennsylvania, addressed as follows: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Attorney for Plaintiffs Date: June 22, 2006 Jen e B. Hipp, Esquire ft ;,? -err .{ G.J .J NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs Vs. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 0j '014P6 CIVIL TERM CIVIL ACTION - EQUITY ANSWER OF PLAINTIIF'S NEVIN L. MYERS and PAMELA S. MYERS TO NEW MATTER FILED BY DEFENDANT TOWNSHIP OF MONROE 32. No response is required. 33. Admitted except that the mentioned Exhibit "B" is not complete. The drawings for the Exhibit are not included. 34. Admitted that the Township granted a time extension. Denied that such granting of an extension was in the authority of the Township. 35. Admitted. 36. Denied. On the contrary, construction was not substantially completed. The siding was incomplete, the sewer was not hooked up and the interior was not complete. 37. Admitted that the Stop Work Order letter was dater September 13, 2005. Plaintiffs are without information as to how this was served on Deardorff. 38. Admitted that a Stop Work Order was issued. Denied that the Permit expired September 1, 2005. The original expiration date of the Permit was actually May 2, 2005. 39. Admitted. 40. Admitted. 41. Denied that the Plaintiffs did not take any action. On the contrary, Plaintiffs appeared at the Township board of Supervisors' meeting protesting the construction of a duplex at this property and Plaintiff Nevin L. Myers appeared as a witness in the proceedings filed by the Township against Deardorff. By way of further answer. Plaintiffs relied upon the Township to enforce its Ordinance and understood from township officials that the Township would vigorously enforce the terms of its Zoning Ordinance. 42. Admitted. 43. Admitted. 44. Admitted. By way of further answer, Plaintiffs relied upon the Township to pursue the action and the Township never involved the Plaintiffs in any settlement negotiations even though the Township was aware that the Plaintiffs owned land immediately adjacent to the property which was the subject of the legal dispute. 45. Denied. The hearing scheduled before the Monroe Township Zoning Hearing Board on Deardorff's Appeal was scheduled on November 29, 2005, however, Township Solicitor, called Plaintiffs prior to meeting and told them that the Hearing was cancelled. Plaintiffs later learned that a Hearing was in fact held but that Deardorff did not present his case and that the Hearing was continued to a later date. Deardorff later withdrew his Appeal and, as a result, Plaintiffs were not given an opportunity to intervene. 46. Denied in so far as the Zoning Hearing Board of Monroe Township did not have any jurisdiction over the Settlement Agreement and therefore no appeal could be filed. By way of further answer, there is no basis for an appeal of any Settlement Agreement to the Court of Common Pleas of Cumberland County. 47. Denied. Said allegation is a Conclusion of Law. Proof thereof is demanded. 48. Denied. Said allegation is a Conclusion of Law. Proof thereof is demanded. WHEREFORE, Plaintiffs request Court relief as set forth in Plaintiffs' Complaint. ?,at-O? Date Hubert X. Gilroy, Esquir Attorney for Defen Broujos & Gilroy, 4 North Hanover Street Carlisle, PA 17013 717-2434574 I verify that the statements in the foregoing pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities. Date NEVIN L. MYERS, laintiff- Date PAMELA S. MYERS, Pla tiff e- '14 NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs Vs. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant, Harold E. Deardorff, Jr. Respectfully submitted, Date: 74--4 6 CLECKNER.AND FEAREN By: Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P. 0. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person (s) indicated below, by depositing same in the United States mail, postage prepaid at Harrisburg, Dauphin County, Pennsylvania, this 6th day of July, 2006. Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, PA 17013 Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 CLECKNER AND FEAREN By Den s J. Shatto, Esquire PA Attorney ID ##25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 KEVIN L. MYERS and PAMELA S. MYERS, Plaintiff Vs. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM : CIVIL ACTION - EQUITY NOTICE TO: NEVIN L. MYERS and PAMELA S. MYERS c/o Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4. North Hanover Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. CLECKNER AND FEAREN By Dennis J. Shatto, Esquire PA Attorney ID 25675 119 Locust Street P. 0. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 Attorneys for Defendant, Harold E. Deardorff, Jr. NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs Va. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY ANSWER TO COMPLAINT WITH NEW MATTER AND NOW, comes Harold E. Deardorff, Jr., one of the Defendants herein, and answers the Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part and denied in part. It is admitted that Deardorff has constructed a duplex-style dwelling on the subject premises. The statement that such a dwelling is not permitted in an Agricultural Zone is denied as a conclusion of law and further denied on the basis that the Zoning Ordinance speaks for itself. By way of further answer, the averments of New Matter are incorporated by reference. 8. The averment of paragraph 8 is in the nature of a conclusion of law to which no response is necessary. The averment is further denied on the basis that the ordinance speaks for itself. The averments of New Matter are incorporated herein by reference. 9. Admitted in part and denied in part. It is admitted that the Township filed an action against Deardorff to Docket No. 05- 5109. Plaintiffs' characterization of the action is denied on the basis that the Complaint speaks for itself. 10. Admitted in part and denied in part. It is admitted that Deardorff filed an application with the Zoning Hearing Board of Monroe Township. The characterization of the proceeding is denied on the basis that the application speaks for itself. 11. Admitted in part and denied in part. It is admitted that Deardorff and the Township entered into an agreement dated January 12, 2006. The characterization of the content of the agreement is denied on the basis that the agreement speaks for itself. 12. Denied. Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of averment, and proof is demanded. 13. Denied. The averment of paragraph 13 is in the nature of a legal conclusion to which no response is required. The characterization of the agreement is further denied on the basis that the agreement speaks for itself. 14. Admitted in part and denied in part. It is admitted that Plaintiffs' attorney issued correspondence to the Township dated February 6, 2006. The content of the correspondence is denied on the basis that the correspondence speaks for itself. 2 15. Denied. Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and proof is demanded. 16. It is admitted that Deardorff has withdrawn his application to the Zoning Hearing Board. The characterization of his application as a "request for a variance" is denied on the basis that the application speaks for itself. 17. Denied. The averments of paragraph 17 are in the nature of conclusions of law to which no response is required. 18. Denied. The averments of paragraph 18 are in the nature of conclusions of law to which no response is required. It is also denied that the Township granted Deardorff a variance. 19. Admitted in part and denied in part. It is admitted that Plaintiffs and Defendant own abutting properties. The remaining averments are denied on the basis that after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded. 20. Denied. It is denied that Plaintiffs will suffer any damages if the subject premises is used as a duplex. Moreover, after reasonable investigation, Answering Defendant is without knowledge or information to form a belief as to the truth of the averment, and proof is demanded. 21. Denied. Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, and proof is demanded. 3 22. Admitted in part and denied in part. It is admitted that Deardorff has not obtained a variance for three driveways. It is denied that the subject property is "being developed". It is admitted that the subject property has three (3) driveways, one of which provides access to and from a private alley to the west and north of the subject property. The averment that three driveways is a violation of the ordinance is denied as a conclusion of law. 23. Denied. The characterization of the Townships action is denied on the basis that the filing speaks for itself. 24. The answers to paragraphs 1 through 23 are incorporated herein by reference. 25. Denied. The averments of paragraph 25 are in the nature of conclusions of law to which no response is required. 26. Denied. The averments of paragraph 26 are in the nature of conclusions of law to which no response is required. 27. Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and proof is demanded. COIINT II 28. The answers of paragraphs 1 through 27 are incorporated herein by reference. 29. The averments of paragraph 29 are in the nature of conclusions of law to which no response is required. It is further denied that Deardorff is in violation of the ordinance. The averments of New Matter are incorporated herein by reference. 4 30. The averments of paragraph 30 are in the nature of a request for relief, to which no response is required. Answering Defendant denies that Plaintiffs are entitled to any relief. 31. The averments of paragraph 31 are in the nature of a request for relief, to which no response is required. Answering Defendant denies that Plaintiffs are entitled to any relief. WHEREFORE, Answering Defendant respectfully requests judgment in his favor and against Plaintiffs. NM MATTER 32. On or about May 2, 2002, Deardorff applied to Monroe Township for a zoning permit to remove an existing mobile home and a zoning permit to construct a dwelling. The latter application was accompanied by a drawing of a duplex dwelling he proposed to build. 33. On or about May 2, 2002, Monroe Township issued to Deardorff Zoning Permit 2002-36 (for the removal of the mobile home), and Zoning Permit No. 2002-37 (for the dwelling). 34. Shortly thereafter, Deardorff removed the mobile home. 35. Deardorff undertook most of the duplex dwelling construction himself, with occasional assistance from Plaintiff Nevin L. Myers and others. 36. By the end of 2002, the exterior appearance of the building was unmistakably that of a duplex dwelling. 37. By the end of 2003, the duplex was under roof, with separate garages on each end of the building and a common interior wall without any access from one unit to the other. 5 38. Deardorff inadvertently failed to request extensions of his zoning permit. 39. On or about March 8, 2005, the Township granted an extension of the permit to September 1, 2005. 40. Plaintiffs did not appeal the issuance by the Township of the zoning permit or the permit extension. 41. By correspondence dated April 19, 2005, Plaintiff Nevin L. Myers requested certain information from Gregory R. Rogalski, P.E. (hereinafter "Rogalski"), Monroe Township Zoning Officer. A copy of Nevin L. Myers' April 19, 2005 correspondence is attached hereto and incorporated herein as Exhibit "A". 42. By correspondence dated May 16, 2005, Rogalski responded to Plaintiff Nevin L. Myers' correspondence regarding certain information requested as to the property at 1294 Brandt Road, Monroe Township. A copy of Mr. Rogalski's May 16, 2005 correspondence is attached hereto and incorporated herein as Exhibit "B". 43. After receiving Rogalski's correspondence dated May 16, 2005, Plaintiffs did not take any legal action. 44. As of September 1, 2005, the duplex was substantially completed, but not finally completed. 45. On September 13, 2005, the Township issued a Stop Work Order to Deardorff. 46. Deardorff filed a timely appeal of the stop work order to the Zoning Hearing Board, and in his application, requested other relief. 6 47. On or about September 30, 2005, the Township started an equity action against Deardorff, filed to Docket No. 05-5109. 48. Plaintiff Nevin L. Myers testified at a hearing in the equity action on October 19, 2005. 49. Plaintiffs did not intervene in the equity action, and did not intervene in Deardorff's application to the Zoning Hearing Board. 50. On or about January 12, 2006, Deardorff and the Township entered into an agreement to resolve their disputes. 51. On or about January 12, 2006, the Township issued to Deardorff an extension of his zoning permit through April 12, 2006. 52. On or about February 6, 2006, Plaintiffs filed a public record request with the Township requesting a copy of the Agreement entered into between the Township and Deardorff regarding litigation previously pending at Cumberland County Docket No. 05- 5109. 53. On or about February 6, 2006, Monroe Township provided a copy of the Agreement to Plaintiffs. 54. On or about April 11, 2006, the Township issued to Deardorff occupancy permits for the separate dwelling units. 55. Plaintiffs did not file an appeal from the extension of the zoning permit, the approval by the Township of the agreement, or the issuance of the occupancy permits. 56. The Court lacks jurisdiction in equity. 57. Plaintiffs have an adequate remedy at law. 7 58. Plaintiffs' Complaint is barred by the doctrine of laches 59. Plaintiffs' Complaint is untimely. 60. The agreement between Deardorff and the Township is legally binding and enforceable. 61. Deardorff has a vested right to use of the building as a duplex dwelling. 62. Deardorff is entitled to continue the use of the building as a duplex dwelling under the doctrine of variance by estoppel or equitable estoppel. WHEREFORE, Deardorff respectfully requests Your Honorable Court dismiss the Complaint. Dated: y/OG Respectfully submitted, CLECKNfiR FEAREN By: Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P. O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 Attorney for Defendant, Harold E. Deardorff, Jr. April 19, 2005 . Gregory R. Rogals Zoning Officer for M' 1220 Boiling Springs.>rs,'' Meohardesburg PA t VIA FACSIM= Re: Dear'W.Rogelakir I am writing kti the above•eaptioned property. As you know, aooording to Section 201.2 .5 of ZWbV Winsnne, WM fanldy dW9Uings tr0 prohibited on this property altte6 , "Agricultural " This zoning only permits single flintily dwdiiags. The build on tha,proWly.in question dP.0 not Qotrtply tuitlt tht zoning in any way, . rtlttrtnore, this building hu been permitted as it sini0c ft* dwelling and snob, k its ourrad layout this building is anquettionably a duplex. It is my ooaaeetiiott between the two dweaw in dw top floor with esch other or with efnre, I fae1.11M the owner. at some point in the fawn, plane to make this at building, As a ow as well is an adjacent property owner, lam hereby requeatiag itvpsmoa fthit propedY to iodude the cadre it4erior of the building. if the out oft single tatily dwelt & you must proceed to ett?rce somas ordinanoes. and require.the owner to M= the layout bo a single nothing store. As per the ownees permit drawiug, this bull ft eontaiae 4 . ' 4od 5, if ad 6bedmoma, It also oontsins 4 eepsrste geregea. This is trot Under the 1 am miuatias copies of your iaspeetion dommantaflon and Copies of my to the oaeiar.to anfam comziag this proper v to a ebayllo fatmly dwelling as tequestiag copies of all flute correspondence from the owner to you on Ifyou would. to discuss this letter, please fed free to Call me at (717) 787-9943. 17) 256-1024 in the evenings. I look fotwmtl . response to this letter, Very, tr* Yaw's, r5:t.•. Navin L. Myers Property Owner of 1290 Brandt Road ":' :; EXHIBIT (Penno PLNNONI ASTO[1SrlS WC. CONSULTING ENGINTIM 431 UtmaCAwnu Camp KI. 8117011-5602 Te' 717,975.6461 pay( ?I 7-975-646D May 16;;. ..'.r,;.: Nevin 12901 RE., Cumberland County, Yennaylvania Dear M,' 1'rusn April 19, 2005 regarding the above referwtced property, the intent ' -pond to the various issues that bave been raised. As we have previou information regarding euforcernent documentatloh• has bear pro" . ° the public information request bled by the Law Bhrn of Sermtelli, Schi oun, P,C, and F-R. Ma,rtsolf, Esq- No additiooai Wfonnation ia- Zoning which permitted construction of the structure located at 1294 Brandt Road, vtt y 2, 2002 prior to the enactment of the Uniform Construction Code in. such, the only inspection that remains on the property is the on as required by Section 701.4 of the Zoning Ordinance. If the struc s 'submitted with the original zoning permit application, a certificate of use <•' The To- take no fimber action Legs *ng this p0rliw1lr property, with the e7 ci pti' of the final ceitificats of Use observation and.the issuance of a cerul bate. The applicant bee extended his Zoning permit until Septe lure to obtain a certificate of use prior to that date, or :Future conv ' m into a four unit apartment building will result in future Pursu t, I will be happy to provide you with AnY future correspondence with the pr'; 294 Brandt Road. If you have any question, please feel free to call me at „ • -. 81 or at the Township Building at 697-4613. Very J' Mc R 0 er Cc: p Board of Supervisors ?... Esq. (fax) EXHIBIT 13 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 herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. HAROLD . DEARDORFF, JR. DATE: ?f,L 2006 CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person (s) indicated below, by depositing same in the United States mail, ?p?o{stage prepaid at Harrisburg, Dauphin County, Pennsylvania, this y day of August, 2006. Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, PA 17013 Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 CLECKNER AND FEAREN By JWW4 Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 N O G? Ts 1 ? ."SJ ..,? Q ?T?' ?? ? ?? NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs VS. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY PLAINTIFFS' ANSWER TO NEW MATTER OF DEFENDANT HAROLD E. DEARDORFF, JR. Plaintiffs, Nevin L. Myers and Pamela S. Myers, by their counsel, Broujos & Gilroy, P.C., set forth the following in response to the New Matter filed by Defendant Harold E. Deardorff, Jr.: 32. Admitted in part and denied in part. Admitted that an application was filed for a zoning permit to remove an existing mobile home. Denied that an application was filed to construct a residential duplex dwelling. Said application was for a single family dwelling. 33. Admitted. By way of further answer, zoning permit No. 2002-37 authorized construction of a single family unit. 34. Admitted. 35. Denied that Plaintiff assisted with any construction. 36. Denied. By way of further answer, Defendant professed that this structure was a single family dwelling with live-in quarters. 37. Denied. There was no indication that the building being constructed was anything but a single family residence with additional amenities being maintained for temporary in-law quarters. 38. Admitted that Deardorff failed to request extensions of the zoning permit. Denied that such failures were "inadvertent". 39. Admitted that an extension was granted, the exact date of the extension to expire to be determined by examination of documentation within the control of Monroe Township. 40. Admitted. By way of further answer, the original permit and any extension indicates that a "new single family dwelling" was to be constructed at the property. 41. Admitted. 42. Admitted. 43. Denied. On the contrary, Plaintiffs appeared at the Board of Supervisors meeting for Monroe Township protesting the construction of a duplex at this property. Additionally, Plaintiff Nevin L. Myers appeared as a witness on behalf of Monroe Township in proceedings filed by Monroe Township against Defendant. Plaintiffs relied upon Monroe Township to enforce its ordinance and understood from Township officials that the Township would vigorously enforce the terms of its Zoning Ordinance. 44. Denied. On the contrary, construction was not substantially completed. Defendant Deardorff was still working on the property as of September, 2005. The siding was incomplete. The sewer was not hooked up, the HVAC was not installed, and the interior was incomplete. 45. Admitted. 46. Admitted that Defendant Deardorff filed an appeal to the stop-work order before the Zoning Hearing Board of Monroe Township. Denied that said appeal was "timely". Proof thereof is demanded. Further admitted that said appeal requested additional alternative relief. 47. Admitted. 48. Admitted. 49. Admitted that Plaintiffs did not intervene in the mentioned equity action. Relative to the Zoning Hearing Board action, the Plaintiffs intended to appear as a witness and be a party to that action but were advised by the Township Solicitor that the case was cancelled. Plaintiffs later learned that the matter before the Zoning Hearing Board was in fact continued generally. 50. Admitted that Deardorff and Monroe Township entered into an agreement on January 12, 2006. Denied that said agreement has any legal validity. 51. Admitted. 52. Admitted. 53. Admitted. 54. Admitted that said occupancy permits were issued by Monroe Township to Deardorff. Denied that said permits were legally or validly issued. 55. Denied. Plaintiffs have instituted the instant action contesting the attempt by the Township to enter into an agreement which is legally invalid. 56. Denied. Said allegation is a conclusion of law and no responsive pleading is required. 57. Denied. Said allegation is a conclusion of law and no responsive pleading is required. 58. Denied. Said allegation is a conclusion of law and no responsive pleading is required. 59. Denied. Said allegation is a conclusion of law and no responsive pleading is required. 60. Denied. Said allegation is a conclusion of law and no responsive pleading is required. 61. Denied. Said allegation is a conclusion of law and no responsive pleading is required. 62. Denied. Said allegation is a conclusion of law and no responsive pleading is required. WHEREFORE, the Plaintiffs respectfully request your Honorable Court to dismiss Defendant Deardorfrs New Matter and to direct relief as requested in Plaintiffs' Complaint. Date: d u ooco Hubert X. G , Esquire Broujos & roy, P.C. 4 N. Hanover Street Carlisle, PA 17013 (717) 243-4574 Attorney for Plaintiffs I verify that the statements in the foregoing pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities. o v6 Date 0-O?? Date NEVIN L. MYEI9, Plaintiff A 'W' D L4W PAMELA S. M'YERS, Plai tiff c'S ? o _ CD fV o i5CD It C4 CD s N ? tv SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-02466 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUM rERL;,-6ZD MYERS NEVIN L ET AL VS MONROE TOWNSHIP OF ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: DEARDORFF HAROLD E JR but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT - EQUITY On July 11th , 2006 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York County 41.69 Postage 1.02 79.71 ,-! 07/11/2006? BROUJOS & GILROY Sworn and subscribe to before me this day of So answers R. Thomas Kline Sheriff of Cumberland County 7• a ?-04 A. D. Y KT )WNE BUSINESS FORMS, INC. Ph. (717) 845-5955 Fax (717) 848.8936 email: ybf@blazenet.net COUNTY OF YORK OFFICE OF THE SHERIFF S(1 7)771-9601t. '45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE PnTPMT10NS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEM TVM ONLY LJNE 1 THRU 12 0 WT DETACH ANY COPIES I. PLAINTIFF/S/ Nevin L. 3 DEFENDANT/S/ et al of Monroe et al 2 COURT NUMBER 06-2-46.6 C I V I L 4. TYPE OF WRIT OR COMPLAINT NOTICE & CICA 2466 +v±± ZliCK1ft at"t UK UtbUKH I ION OF MUPLKIY TO SE LEVIED, ATTACHED, OR SOLD Harold E. Deardorff Jr L?6 ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO , CITY, BORO. TWP ,STATE AND ZIP CODE) AT 981 Pinetown Road Lewisberry, PA 17339 7 INDICATE SERVICE' O PERSONAL U PERSON IN CHARGE U DEPUTIZE U CERT MAIL U 1ST CLASS MAIL U POSTED U OTHER NOW June 22 , 20 06 I, SHERIFF OF 1 9-1 -1 UNTY, PA, do hereby deputize the sheriff of York COUNTY to execute t make returx of-according to law. This deputization being made at the request and risk of the plaintiff SHERIFF OF COUNTY 6. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SMtfE.O F COUNTY Cmberland Please mail return of service to Clmtberland County Sheriff. Thank you. ADVANCE FEE PAID BY CUMBERLAND CO SHERIFF NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or allachng any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment. watiout habdily on ffte part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE H U B E R T X. G I L R 0 Y , ESQ 10. TELEPHONE NUMBER 11 DATE FILED 4 NORTH HANOVER STREET, CARLISLE, PA 17013 1717-243-4574 6/20/2006 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed d notice is to be marled) CUMBERLAND CO. SHERIFF OFFICE SPACE BELOW FOR USE OF THE SWRFF - DO NOT VJWM OW TM LM 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15 Expiration/Hearing Date or complaint as indicated above. M J M C G I L L Y C S O 16/23/2006 7/20/2006 16. HOW SERVED PERSONALX RESIDENCE ( ) POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. O I here certify and re rn a NOT FO ND because I am unable to locate the individual, company, etc named above. (See remarks below.) 18. NAME O TITLE IVIOUAL S / tIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. to of Service 20 Time of Service ,3? (a 21. A EMPTS Date rime 7e t. ate Time Miles Int Date Time Miles Int Date Time Miles Init. Dale Time Miles Int Date Time Miles Int 22. 23. Advance Costs 24, i costs 25 N/F 26. M,Ioa 27 Postage 28 Sub r29. Pound 30 31 Surrig . 32. Tot. Costs 33 CgAI5 stun eck No $100.00 Z07 1 S 3 C/ I I Cyr" 34. Foreign County Costs 35. Advance Costs 36 Service Costs 37 Notary Cert. 38 MileagrJPosWg~ Found 39 Total Costs 40 Costs Due or Refund 41. AFFIRMED and subscribed to befor me 42 day olC0jHj 1 9,(ff)I QF nx4atrtrsntvU I NOTARIAL SEAL LISA L. BOWMAN, NOTARY PUBLIC CITY OF YORK, YORK COUNTY MY COMMISSION EXPIRES AUG. 12, 2009 44. Signature of Dep. Sheriff 46. Signature of York County Sheriff ?OR;WILLIAM M HOS SHERIFF 48 Signature of Foreign 45.9117E 3 ? _?ro DATE 7/5/06 49 DATE NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs VS. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY NOTICE TO PLEAD To: Township of Monroe c/o: Jennifer B. Hipp, Esquire 1 West Main Street Shiremanstown, PA 17011-6327 Harold E. Deardorff, Jr. c/o: Dennis J. Shatto, Esquire P.O. Box 11847 Harrisburg, PA 17108-1847 PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1035.3, YOU MUST FILE A WRITTEN RESPONSE TO THE ATTACHED MOTION FOR SUMMARY JUDGMENT WITHIN THIRTY (30) DAYS AFTER SERVICE OF THIS MOTION UPON YOU. BROUJOS & GII,ROY, By: Hubert X. Gilroy/Esq Supreme Court N4 North Hanover Carlisle, PA 170 (717) 2434574 (Attorney for Plaintiffs) NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs VS. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY MOTION FOR SUMMARY JUDGMENT Plaintiffs, Nevin L. Myers and Pamela S. Myers, by their counsel, Broujos & Gilroy, P.C., set forth the following: 1. This Motion for Summary Judgment is filed in accordance with Pennsylvania Rule of Civil Procedure 1035.1 et seq. 2. Attached hereto and marked as Exhibit `A' is the "Settlement Agreement" referred to in the Pleadings in this case. 3. The Pleadings in this case consist of Plaintiffs' Complaint, Answers with New Matter filed by both the Defendants, and Plaintiffs' Answers to the New Matters filed by the Defendants. 4. The Pleadings disclose that, by virtue of the Settlement Agreement, Defendant Township of Monroe gave to Defendant Harold E. Deardorff a Variance from the Zoning Ordinance. 5. Defendant Township of Monroe has no legal authority or ability to grant a Variance from the Zoning Ordinance either by an agreement pursuant to a Settlement of Litigation or otherwise. 6. The Pleadings disclose that Defendant Deardorff is maintaining a Duplex style residential dwelling at the subject premises and that no Variance has been granted to Defendant Deardorff. 7. The Pleadings further disclose that the Township Zoning Ordinance does not permit Duplex style residential homes within an Agricultural Zone which is where the subject property is located. 8. There is no genuine issue of material fact with respect to the following: a. Defendant Deardorff maintains a Duplex style residential home on the subject property. b. The Zoning Ordinance of Monroe Township does not permit Duplex style residential homes in the Agricultural Zone which is where the subject property is located. c. Defendant Deardorff has not obtained a Variance from the Monroe Township Zoning Hearing Board in order to maintain a Duplex home. WHEREFORE, the Plaintiffs respectfully request your Honorable Court to enter Summary Judgment in accordance with Plaintiffs' claim for relief as set forth in the Complaint. Respectfully Date: / /L 3- 0 w Hubert X. Gilro , Esquire Broujos & Gil y, P.C. 4 N. Hanover Street Carlisle, PA 17013 (717) 243-4574 Attorney for Plaintiffs rr., ?p J" or THIS AGREEMENT, made this jeday of IWA-4-^41 2006, by and between HAROLD E. DEAsRLOPFF, JR., (hereinafter "Deardorff"), and TOWNSHIP OF MONROE, Cumberland County, Pennsvl:vania (hereinafter "Township"). WITNZSSEWH: WHEREAS, Deardorff has constructed, on property he owns within the Township at 1294 Brandt Road, a twu-stor;r structure; co^.sisting of two separate syrgle-family 3walZi.1 units, in a "duplex" configuration; each duplex consists of the upper floor unit and a lower level unimproved unit; and WHEREAS, Deardorff received a zoning permit on or about May 2, 2002, known as Permit No. 2002-37, which expired, and was ultimately extended through September 1, 2005; and WHEREAS, construction of the duplex structure was not completed by Deardorff on or before September 1, 2005;; and WHEREAS, a Stop Work Order dated September 13, 2005, was issued by ".own.ship to Deardorff, and by Order dated October 19, 2 05, The Honorable Wesley Oler, :r. enjoined Deardorff from, working in the building; and WHEREAS, Township has recfaested, and Deardorff has agreed we obtain, a second sewer connection permit for the building and EEXIHI IB IT Deardorff has agreed to pay the required connection fee of $3,050.00; and WHEREAS, Township has fi nd a Municipal 'ien for Services and Sewer Rates to Cumberland County, Wocket No, 05-5742, and the. Township has requested and Deardorff has agreed to pay the amount of $1,479.47 in order to satisfy the said Municipal Tien; and WHEREAS, Township has filed a proceeding before %stirict Justice Gayle Elder requesting a fine from Deardorff, which nroceed,irg is pending a hearing; and WHEREAS, Deardorff has filed an appeal of. the Stop Work Order and a request for variance with the Monroe Township Zoning Hearing Board, and a petition to remove the preliminary injunction entered by Judge Oler, as well as an application for extension of tiie zoning permit; and WHEREAS, the parties hereto have reached an agreement for the resolution of various disputes, claims and filings heretofore described, NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows; 1. The Township shall extend Deardorff's Zoning Permit No. 2002-37 fox a period of ninety (90) days, commencing upon the date this Agreement has been fully executed, and Deardorff agrees that the construction will be completed within that peri.cd of time suf iciently to entitle Deardorff to an occupancy permit. The Stop 2 ^. 4/1 µ.1 Work Order shall be coTisidered witr.drawn upon zssuance of the permit extension. 2. Deardorff and his successors and assigns shall have the right to use thy: building as a duplex dwelling, each duplex consisting of the upper floor anit and lower unit directly underneath. The loner level of the duplex shall not be used £or commercial or personal storage purposes kor anyone who is not residing there, This storage prohibition shawl also apply to Deardorff: d?srirg such times as he is not residing thew. 3. Deardorff shall pay to Township, oa the, date of execution of this agreament, i.r. cash or certified funds or other rnanner acceptable to Township, the sum of $3,C50,00 in full payment of the balance due on the second connection fee, and t;ie payoff fox the lien, by which as of Ncvember 29, 2005, had a balance of $1,479.4-), 4. Wrh.in f:.fteen (15) days after issuance of an occupancy permit to Deardorff, the Township gaall withdraw, at no cost to Deardorff, the citation neratofors filed with District Justice Gayle Elder, and Township shall take whatever action, is reasonably necessary tv have the preliminary injunction dissolved and t14 he equity action marked discontinued, all at no cost -o reardvrff. 5. Deardorff shall reasonably cooperate with Township in the withdrawal of the prel i-urinary injunction and discontinuance of the 3 A h 1 ?5rr t equity ac-ion, including, if neressary, withdrawal of ,;. petition to remove the injunction. 6. T'.e parties agree t, et the proceedir_gs filed by Deardorff wir.h the Zo ing Hearing Board snall be continued generally until March 31, 2005 to accommodate the parties in consummation of the terms of this agreement. 7. Deardorff shall allow access :o all. par-cs of the Structure tc Gregory Rogalski, zoning officer for rownship, on or before December 2, 2005, so that Mr. Rogalski may confirm the vezacity of Deardorff's representation that only two dwelling units have been constructed within the building, 8. All other terms and conditions of this agreement are expressly con*.irgent upon Deardorff al-owing access and upon the truth of his aforesaid representation. 9. The Township shall not require that Deardorff comply with the requirements of the U-n'form Ccn3tructivn Code, adopted Ly Township on July 1, 2004. '.G. This agreement is 'contingent upon Deardorff, his succtessors and assigns, raving the r:`ght to use the building as a duplex, and the parties agree to reasonably cooperate la completing any documents, filings or actions reasonably necesaary irn the confirmation of such use. 4 r IN WITNESS WHEREOF, .he parties hereto ha,re set :heir hands and seals the day ar.ci year first above w.r!.tteen.. ATTEST: TOWNSHIP OF MONRCE KEVIN R. MIUER, Cha.6man WITNESS: ,??" Ft F£`P JR. 5 VERIFICATION I verify that the statements in the foregoing pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities. -;W'? - Nevin L. Myers VERIFICATION I verify that the statements in the foregoing pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities. ? ?Iwa - J, Pamela S. Myers el, y -i _ ._ :. j 4.x.7 _ ? ;,., _ `-r 1 .w. 'a? ^, ? -C NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY ANSWER OF MONROE TOWNSHIP TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND NOW, comes Monroe Township, by and through its Solicitors, Jennifer B. Hipp, Esquire and James D. Bogar, Esquire, and files this Answer to Plaintiffs, Nevin L. Myers and Pamela S. Myers Motion for Summary Judgment as follows: 1. Denied. The allegation set forth in Plaintiffs' Paragraph No. 1 is a conclusion of law to which no response is required. 2. Admitted. 3. Admitted. 4. Denied. The allegation set forth in Plaintiffs' Paragraph No. 4 is a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Monroe Township "granted a variance" to Defendant Harold E. Deardorff, Jr. 5. Denied. The allegation set forth in Plaintiffs' Paragraph No. 5 is a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Monroe Township "granted a variance" to Defendant Harold E. Deardorff, Jr. 6. Denied as stated. It is admitted that a duplex residential dwelling is located at 1294 Brandt Road and that the Monroe Township Zoning Hearing Board did not grant a variance as to the real property. It is specifically denied that Monroe Township granted a variance as to the real property. 7. Denied. The allegation set forth in Plaintiffs' Paragraph No. 7 is a conclusion of law to which no response is required. 8.a. Admitted. 8.b. Admitted in part, denied in part. It is admitted that the Monroe Township Zoning Ordinance does not permit a "duplex style" residential home in the Agricultural Zone. Monroe Township specifi- cally denies any inference that it "granted a variance" to Defendant Deardorff to construct a duplex style residential home in the Agricultural Zone. By way of further answer, Monroe Township admits that its Zoning Officer mistakenly issued a building permit to Harold E. Deardorff, Jr. to construct a duplex style dwelling in the Town- ship's Agricultural Zone. See Monroe Township's Exhibit "B" as at- tached to Monroe Township's Answer and New Matter. 8.c. Admitted. 2 WHEREFORE, Monroe Township respectfully requests that this Honorable Court deny Plaintiffs' Motion for Summary Judgment and, accordingly, dismiss Plaintiffs' Complaint in its entirety. By: ? JENN ER B. HIPP, ESQUIRE Pa. I.D. No. 19475 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Attorney for Monroe Township 3 VERIFICATION I verify that the statements made in this Answer to Plaintiffs' Motion for Summary Judgment are true and correct. I understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE: November ?U' , 2006 Kevin R. Miller, Chairman Board of Supervisors Monroe Township CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing Answer to Motion for Summary Judgment as required by Pa. R.C.P. 237.1 upon the following named individual this day by depositing same in the United States Mail, Certified Mail, Return Receipt Requested, at Shiremanstown, Pennsylvania, addressed as fol- lows: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Attorney for Plaintiffs Dennis J. Shatto, Esquire P. 0. Box 11847 Harrisburg, PA 17108-1847 Attorney for Defendant, Harold E. Deardorff, Jr. Date: November K9, 2006 - ?? a, , Jenn r B. Hipp, Esquire 5 r? C7 S W ri NEVIN L. MYERS and PAMELA IN THE COURT OF COMMON PLEAS OF S. MYERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants NOTICE TO PLEAD TO: Nevin L. Myers and Pamela S. Myers c/o Hubert X. Gilroy, Esquire 4 North Hanover Street Carlisle, PA 17013 PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1035.3, YOU MUST FILE A WRITTEN RESPONSE TO THE ATTACHED MOTION FOR SUMMARY JUDGMENT WITHIN THIRTY (30) DAYS AFTER SERVICE OF THIS MOTION UPON YOU. By : J4'1?w JE FER B. HIPP, ESQUIRE Pa. I.D. No. 19475 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Attorney for Monroe Township NEVIN L. MYERS and PAMELA IN THE COURT OF COMMON PLEAS OF S. MYERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants MONROE TOWNSHIP'S CROSS MOTION FOR SUMMARY JUDGMENT AND NOW, comes Defendant Monroe Township, by and through its Solicitors, Jennifer B. Hipp, Esquire and James D. Bogar, Esquire, and files this Cross Motion for Summary Judgment as follows: 1. Monroe Township (hereinafter the "Township") granted a Zoning Permit to Harold E. Deardorff, Jr. (hereinafter "Deardorff"), same being dated May 2, 2002, being known and numbered as Zoning Permit No. 2002-37, to construct a single-family residential home in the Township Agricultural Zone (A). A copy of Zoning Permit No. 2002-37 is attached to the Township's Answer and New Matter as Exhibit "B". 2. Attached hereto, marked Exhibit "A" and incorporated herein by reference is the November 15, 2006 Affidavit of Kevin R. Miller, Chairman, Monroe Township Board of Supervisors. 3. By correspondence dated April 19, 2005, Plaintiff Nevin L. Myers requested certain information from the Township Zoning Officer. A copy of Plaintiff Nevin L. Myers' April 19, 2005 correspondence is attached to the Township's Answer and New Matter as Exhibit "C" 4. In his April 19, 2005 correspondence, Plaintiff Nevin L. Myers notes that the structure on Deardorff's property located at 1294 Brandt Road, Mechanicsburg, Monroe Township, Pennsylvania, is "unquestionably a duplex". See Exhibit "C" Answer and New Matter of Monroe Township, Exhibit "C". 5. By correspondence dated May 16, 2005, Gregory R. Rogalski, P.E., Monroe Township Zoning officer, responded to Plaintiff Nevin L. Myers' April 19, 2005 correspondence regarding certain information requested as to the property at 1294 Brandt Road, Monroe Township. A copy of Mr. Rogalski's May 16, 2005 correspondence is attached to the Township's Answer and New Matter as Exhibit "D". 6. After Rogalski's correspondence dated May 16, 2005, Plain- tiffs did not take any legal action. 7. On or about February 6, 2006, Plaintiffs filed a public record request with the Township requesting a copy of the Settlement Agreement entered into between the Township and Deardorff regarding litigation previously pending at Cumberland County Docket No. 05-5109. See Answer and New Matter of Monroe Township, Exhibit "A". 8. On or about February 6, 2006, Monroe Township provided a copy of the Settlement Agreement to Plaintiffs. See Answer to New Matter of Monroe Township, Exhibit "A". 9. At no time during pendency of the action filed at Docket No. 05-5109 did Plaintiffs intervene. 2 10. Plaintiffs did not intervene in Deardorff's Appeal to the Monroe Township Zoning Hearing Board. 11. Plaintiff did not file an appeal from the written Settlement Agreement with the Monroe Township Zoning Hearing Board or the Court of Common Pleas of Cumberland County. 12. Plaintiffs did not file an appeal from the issuance of Zoning Permit No. 2002-37. 13. There is no genuine issue of material fact. The Plaintiffs' Complaint is barred by both the statute of limitations and the doctrine of laches. WHEREFORE, Monroe Township respectfully requests that this Honorable Court grant Monroe Township's Cross Motion for Summary Judgment and dismiss Plaintiffs' Complaint and, further, to grant and render such other relief to Monroe Township as is appropriate under the circumstances. By: ( ?N I 4 Jifik FER B. HIPP, ESQUIRE Pa. .D. No. 19475 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Attorney for Monroe Township 3 I verify that the statements made in this Cross Motion for Summary Judgment are true and correct. I understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE: November 2006 Kevin R. Miller, Chairman Board of Supervisors Monroe Township CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing Answer to Motion for Summary Judgment as required by Pa. R.C.P. 237.1 upon the following named individual this day by depositing same in the United States Mail, Certified Mail, Return Receipt Requested, at Shiremanstown, Pennsylvania, addressed as fol- lows: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Attorney for Plaintiffs Dennis J. Shatto, Esquire P. 0. Box 11847 Harrisburg, PA 17108-1847 Attorney for Defendant, Harold E. Deardorff, Jr. ' r Date: November??9, 2006 Jen i'er B. Hipp, Esquire COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND AFFIDAVIT I, KEVIN R. MILLER, hereby affirm and swear under penalty of perjury that the foregoing statements, as well as any attached documentation, are true and correct to the best of my personal knowledge, information and belief: 1. I serve as the Chairman of the Monroe Township Board of Supervisors. 2. Monroe Township granted a Zoning Permit to Harold E. Deardorff, Jr., same being dated May 2, 2002, being known and numbered as Zoning Permit No. 2002-37, to construct a single family residential home in Monroe Township's Agricultural Zone (A). A copy of Zoning Permit No. 2002-37 is attached to Monroe Township's Answer and New Matter as Exhibit "B". 3. While Deardorff's Building Permit Application noted that he intended the use of the property to be as a single family dwelling, a rendering of the proposed structure clearly demonstrates that the structure would be a duplex. A copy of Deardorff's Building Permit Application along with the drawing prepared by Deardorff and submitted with the Building Permit Application is attached hereto and incorporated herein as Exhibit No. 1. ? ?i 4. The drawing prepared by Deardorff clearly demonstrates that the proposed structure would be a duplex style residential dwelling. See Exhibit No. 1. 5. Given the discrepancy between Deardorff's Building Permit Application and the drawing submitted along with the Building Permit Application, the Monroe Township Zoning Officer should not have issued the Building Permit to Deardorff. 6. Plaintiff Nevin L. Myers appeared at various Monroe Township Board of Supervisors Meetings to complain about the duplex building being constructed on Deardorff's property. A copy of the meeting minutes of the June 9, 2005 Monroe Township Board of Supervisors meeting is attached hereto and incorporated herein as Exhibit No. 2. I, Kevin R. Miller, Chairman, Monroe Township Board of Supervisors, being duly sworn and according to law deposes and says that the facts set forth in the foregoing Affidavit are true and correct to the best of his knowledge, info matio and belief. KEVIN R. MILLER, Chairman Monroe Township Board of Supervisors SWORN to and subscribed before me this /4d-day of 2006. Notary Public My Commission Expires: NOTARIAL SEAL CAROL A. BOGAR, NOTARY PUBLIC SMREMANSTOWN BORO., CUMBERLAND CO. MY COMMISSION EXPIRES NOV. 13, 2007 APPLICATION FOR ZONING PERMIT Township of Monroe, Cumberland County, Pennsylvania DATE v r^? ?`? PERMIT NO. Cumberland County Tax Assessment Parcel No. 4 2 _:?? % Application (IN TRIPLICATE) is hereby made to the Township for a Zoning Permit in conformity with the requirements of Zoning Ordinance, dated June 30,1970, and anyyaamendme is hereto t e following described work: Property Location .4? 1_1_1 The undersigned applicant hereby applies for a permit to: tr -' Erect a structure :1:2,-,•` P11 e" /1, Add to a structure Alter a structure F Estimated cost of proposed work: Erect a sign Change a use .- rr /'? C- - f / $ ?2 . . -? EXISTING PROPOSED PRESENT USE OF PROPERTY: families stories ,l? i'ei !? l material //-- type plc 1 t . Submitted herewith (IN TRIPLICATE) is a scale drawing, fully dimensioned, of the lot showing proposed work and/or existing structure. Use of adjoining lot or lots is ?' r*le r a / ! Inc ; / 1 t /1,1z r? Name of: Phone # :_ a? l(? Lessee Address . Owner - 114 +? r C f ddress J $ ,he ; Architect Address '--J Contractor Address/ The construction applied for herein shall be accomplished by, Date: If not, this Zoning Permit shall be void. T c' ? ?. Fee of paid: f / Zoning Offer Date: c_? J Copy for: Monroe Twp. Cumberland Co. { Applicant If applicable: Sewage Permit No. date issued: r Jby which SEO: T a EXHIBIT UJ W a in J J a 2, 41) 41"'14? Signat a of Applicc t r /?)' / 4 t7 r r 1' ''f" MONROE TOWNSHIP ZONING CERTIFICATE OF USE PERMIT PERMIT # -o`u/ c?? -37 APPLICANT. ADDRESS _ c PARCEL # TYPE OF US] LOT SIZE DATE ??Av=::?BLDG. SIZE ?(O 3 OR REQUIREMENTS EWEI L ZONING OFFICER DATE ANY CHANGES IN THE USE AND OCCUPANCY AS DESIGNATED ABOVE WITHOUT APPROVAL OF THE PROPER AUTHORITY, WILL AUTOMATICALLY RENDER THIS CERTIFICATE NULL AND VOID. THIS CERTIFICATE OF USE PERMIT IS DENIED FOR TBE FOLLOWING REASON: FIE: $ C541 ® 0 ( ) APPOVED ( ) DENIED cz"*- ? 2,--) 0 0 N' 0 z z ? O Da m 'o aC(-1_ ? 00 n ? ?ZCZ n OON AZT ? m D = i+Z N N C) o T n m servo moo D p I ZZo '?,. ?.J` ??a \? ?~ 4 1 I \ I F? YG ?? nou IJ ub u.i:IJp Monroe Township 258 9311 p.2 June 9, 2005 7:30 PM The regular meeting of the Monroe Township Board of Supervisors was called to order by Chairman Miller. The pledge of allegiance was said by all. ATTENDANCE Kevin Miller, Chairman A.W. Castle, III, Vice-Chairman Sam Simmons, M, Supervisor Marjorie Metzger, Administrative Assistant Mark Bruening, Engineer James Bogar, Solicitor Greg Rogalski, Zoning Officer ANNOUNCEMENTS The Board held an executive session prior to the meeting to discuss pending matters of litigation. STATEMENT Mr. Miller stated in 1956 the one room school house ended. Monroe merged with Middlesex, Silver Spring and Hampden to form Cumberland Valley School District. In 1957 the Monroe elementary school was built. In 1958 the first Monroe Township baseball association was formed. In 1970, the census had Monroe listed as the 8' largest income in the county with 26.8 square mile and a population of 3,326. In 1985, the township built the firehouse for Monroe Fire Company. SPEAKERS FROM THE AUDIENCE Nevin Mks, 1290 Brandt Road, gave a lengthy overview of a situation with zoning violations at 1294 Brandt Road. There is a concern of a duplex being built on the property, which is not a pesnritted use in that zone. Mr. Myers noted various letters that have been written by Richard Long, prior Zoning Officer; Greg Rogalski, present Zoning Officer, and James Bogar, Solicitor. He is concerned this project will have a direct detrimental effect on the surrounding properties and will affect the values. He requested the Board and officers to review this matter and to allow no more than a single family dwelling with in-laws quarters. The Zoning Ordinance must apply to everyone, or it doesn't apply to anyone. The Supervisors instructed Greg Rogalski to review the matter and then he will sit down with the Board to discuss the appropriate action. Ralph Miller said he hopes the township is not going to fall back where they pick and choose the ordinances they are going to enforce. Mr. Simmons asked who was picking and choosing enforcement and Mr. Miller said it was former Supervisors. The ordinances need to be enforced uniformly and be fair to everyone. Joe Teri 1299 Brandt Road, lives across the street from the apparent violation and has reviewed Mr. Myers information and is also concerned. He appreciates the Board looking into -1- 0, EXHIBIT -W W0;10 P nonroe Township 258 8311 p.3 the matter and taking the appropriate action. No one has watched what is going on there for three years. Kevin Benton, 362 Old Stone Douse Road, is concerned with the 30 day time period to oppose the final decision stated in the May 16 letter with regard to the apparent violations at 1294 Brandt Road. Mr. Rogalski said he will review the matter within one week. APPROVAL OF MINUTES On the motion of Mr. Castle, and seconded by Mr. Simmons, and by unanimous vote of the Supervisors it was duly RESOLVED to approve the minutes of the May 12, 2005 regular meeting. ROADMASTEWS REPORT On the motion of Mr. Simmons, and seconded by Mr. Castle, and by unanimous vote of the Supervisors it was dully RESOLVED to accept the Roadmaster's Report. ZONING OFFICER'S REPORT On the motion of Mr. Castle, and seconded by Mr. Miller, and by unanimous vote of the Supervisors it was duly RESOLVED to approve the Zoning Officer's Report Mr_ Castle asked to be informed on the two citations filed on vehicles, and how the process goes with the District Justice. FRANK LEBER - SEWER MATTERS Mr. Frank Leber of Rhoads & Sinon was present. He had a proposed ordinance to extend the term of the loan with F & M Bank for the Monroe Acres sewer project with the Dillsburg Area Authority through December 31, 2005. On the motion of Mr. Miller, and seconded by Mr. Simmons, and by unanimous vote of the Supervisors it was duly RESOLVED to adopt Ordinance 2005-2, which extends the loan with F&M Trust through December 31, 2045 for the Monroe Acres sewer project. A roll call vote was taken as follows: Sam Simmons - yea A.W. Castle - yea Kevin Miller - yea Mr. Leber presented documents concerning the restructuring of the relationship between the Municipal Authority and the Township for the southern and northern sewer service areas. -2- nov 1J Ud U3:13p Monroe Township 258 9311 p.4 The desire is to restore the lease back arrangement that existed before. The Township and Authority must re-establish the lease relationship by adopting Resolutions. The township will then have to establish sewer rates through Resolutions and Rules & Regulations. He distributed documents to the Board, Authority and staff for their review and adoption at a later meeting. It is logical to make this effective July 1, 2005, which is the beginning of a quarter. As of July 1, the Township will be the lessee, operator in charge of rates and the billing cycle. He called the Board's attention to several areas of the agreements. The terms end December 31, 2033 to coincide with the general obligation debt. There is also an administrative amount that must be filled in. On the motion of Mr. Miller, and seconded by Mr. Castle, and by unanimous vote of the Supervisors it was duly RESOLVED to schedule a joint meeting with the Board of Supervisors and Municipal Authority for Tuesday, June 14, 2005 at 7:30 PM. Mr. Leber will advertise the joint meeting. EPPLEY ROAD - SPEED LIMIT On the motion of Mr. Castle, and seconded by Mr. Simmons, and by unanimous vote of the Supervisors it was duly RESOLVED to adopt Ordinance 2005-1, which establishes a speed limit on a section of Eppley Road at 25 MPH. NET COMM COMPUTER PROPOSAL This proposal is to consolidate the township and authority networks. This matter was tabled until a meeting in August. NEW BUSINESS BIDS FOR ROAD MATERIALS On the motion of Mr. Miller, and seconded by Mr. Castle, and by unanimous vote of the Supervisors it was duly RESOLVED to award the bids for road materials as recommended by the Roadmaster as follows: 2-A Aggregate to Hempt Bros @ $5.25/ton FOB and $7.75/ton DEL MC-30 Dust Oil to Wilson Paving @ $1.85/gallon Bitiminous Seal Coat to Hammaker @ $.724/ sq. yd. Paving for Eppley Road to Pennsy Supply - ID-2 Wearing @ $42.94/ton and ID-2 Binder @ $34.20/ton Paving for Lindy Terrace to Pennsy Supply - ID-2 Wearing @ $45.951ton Line painting to Alpha Space Control - Double yellow @ S.0638/linear foot and Single white edge @ $.0319/linear foot Diesel fuel to Carlos Leffler @ 51.7049/gallon Heating oil to Carlos Leffler @ $1.6309/gallon -3- IS ue U3:13p Monroe Township 258 8311 p.5 DWAYNE LEBO - OAK GROVE FARMS LAND DEVELOPMENT On the motion of Mr. Castle, and seconded by Mr. Simmons, and by unanimous vote of the Supervisors it was duly RESOLVED to grant a time extension to the Dwayne Lebo - Oak Grove Farms Land Development plan until July 30, 2005 as requested. RECYCLING - TRASH CONTRACT The Board agreed to put together a proposal to go out for bids for a recycling / trash contract. Mr. Bogar said a time line must be established. The Board suggested contacting surrounding townships to see what is included in their contract and their prices so we can propose an intelligent bid and be able to answer why our rates may be different. The Board would like to bid in August so there is ample time. KEYSTONE COMMUNITY HEALTH CARE Mr. Bogar has received communication concerning establishing a group home in the township. There was to be representation at tonights meeting to present a proposal. On the motion of Mr. Miller, and seconded by Mr. Simmons, and by unanimous vote of the Supervisors it was duly RESOLVED to authorize the Solicitor and Zoning Officer to review the ordinances that apply to group homes and recommend any modifications that may need to be considered. SIGN REQUEST On the motion of Mr. Miller, and seconded by Mr. Castle, and by unanimous vote of the Supervisors it was duly RESOLVED to send a letter to PennDOT requesting permission to install two "BUS STOP AHEAD" signs on Williams Grove Road near the entrance to the Williams Grove Mobile Home park, as requested by the Cumberland Valley School District. Mr. Castle suggesting contact the state police for some coverage during those times when the school buses are in that area. Mr. Simmons asked for a status of the Sheaffer Road railroad crossing. Mr. Bruening said the railroad has not processed that request yet. BILLS On the motion of Mr. Castle, and seconded by Mr. Simmons, and by unanimous vote of the Supervisors it was duly RESOLVED to pay the bills as prepared. -4- „UAW io uo ue:IJp Monroe Township 258 9311 p.6 STAFF COMMENTS W. Simmons mentioned community day on June 25. On the motion of Mr. Castle, and seconded by Mr. Simmons, and by unanimous vote of the Supervisors it was duly RESOLVED to cancel the Supervisors meeting scheduled for June 23, 2005. Mr. Castle mentioned community day and volunteers are still needed, even for just one hour would be helpful. Ducks are still on sale for the duck regatta. Remember the troops and keep them in your prayers and their families. Bring them home safe, and God Bless America. Mr. Miller agreed with Mr. Castle's statements. June 25 will be a lot of good activities. Help is still needed for the children's games. Mr. Castle said the names are starting to appear on the Walk of Honor, which gives it a different feeling. He thanked the families who have lost loved ones. ADJOURN On the motion of Mr. Castle, and seconded by Mr. Simmons, and by unanimous vote of the Supervisors it was duly RESOLVED to adjourn at 8:54 PM. Respectfizlly submitted, Marjorie E. Metzger Administrative Assistant -5- t.,? . ? -' ' - ! '- ? .. `. _ - ._? if t-__'I . ? ? l..1'?1 , ? . ?i_ f ,? ^;? Lam' "? NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY MONROE TOWNSHIP'S PRAECIPE FOR LISTING CASE FOR ARGUMENT 1. State matter to be argued: Plaintiffs Nevin L. Myers and Pamela S. Myers's Motion for Summary Judgment. 2. Identify counsel who will argue case: (a) for Plaintiffs: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Telephone number: (717) 243-4574 (b) for Defendant Monroe Township: James D. Bogar, Esquire and Jennifer B. Hipp, Esquire One West Main Street, Shiremanstown, PA 17011 Telephone number: (717) 737-8761 (c) for Defendant Harold E. Deardorff, Jr.: Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Telephone: (717) 238-1731 3. 4. We will notify all parties in writing within two days that this case has been listed for argument. Argument Court date: Dated: November 16, 2006 December 6, 2006 Respectfully submitted, MONROE TOWNSHIP I III-? BY: ( \Y?T I? i?l Jennife? B. Hipp, Esquire One West Main Street Shiremanstown, Pennsylvania 17011 (717) 737-8761 Supreme Court ID No. 86556 Solicitor for Monroe Township 2 NEVIN L. MYERS and PAMELA S. MYERS, . Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants CERTIFICATE OF SERVICE On this date we do swear and affirm that a true and correct copy of Monroe Township's Praecipe for Listing Case for Argument in the above-captioned matter was served upon Nevin L. Myers and Pamela S. Myers by forwarding a copy thereof to Hubert X. Gilroy, Esquire, attorney of record for Plaintiffs, and upon Harold E. Deardorff, Jr., by forwarding a copy thereof to Dennis J. Shatto, Esquire, to the following addresses, by First Class United States Mail as follows: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Dated: November 16, 2006 By: 1 Jenni r B. Hipp, Esquire Pa. I.D. No. 86556 1 West Main Street Shiremanstown, PA 17011 (717) 737-8761 C ,.`? ? ?? -?s? ?, ? -{ ` ? ? -r? ?, - ? n? ?- c,., "`. ?? ; ?' --r ? ? -°t? ? .. L.., :?= tt? %? ? ? .._i 1 46 NEVIN L. MYERS and IN THE COURT OF COMMON PLEAS PAMELA S. MYERS, CUMBERLAND COUNTY, PENNSYLANIA Plaintiffs VS. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants RESPONSE TO MOTION FOR SUMMARY JUDGMENT The Defendant Harold E. Deardorff, Jr., by his counsel, Cleckner and Fearen, responds to Plaintiffs' Motion for Summary Judgment as follows: 1. This statement is in the nature of a conclusion of law. It is admitted, however, that Pa. R.C.P. 1035.1-1035.5 governs motions for summary judgment. 2. It is admitted only that a copy of an Agreement dated January 12, 2006, between Defendant Deardorff and Defendant Township of Monroe is attached to the motion for Summary Judgment and marked Exhibit "A". The document is not entitled "Settlement Agreement". 3. Admitted. 4. Denied. It is denied that by virtue of the Settlement Agreement, Defendant Township of Monroe gave Defendant Deardorff a variance from the Zoning Ordinance. The Agreement speaks for itself. The Agreement did not give Defendant Deardorff a variance from the Zoning Ordinance. On the contrary, the Agreement merely confirmed Deardorff fIs entitlement to use the improvement as a duplex under the doctrines of vested right, variance by estoppel or equitable estoppel. 5. Paragraph 5 of the Motion is a legal conclusion to which no response is required. By way of further answer, however, it is denied that Defendant Township of Monroe granted Defendant Deardorff a variance. The implication that the Agreement is invalid is also denied. 6. Admitted in part and denied in part. It is admitted that Defendant Deardorff is maintaining a duplex style residential dwelling on his property, which he has a right to do under the doctrine of vested rights, variance by estoppel or equitable estoppel, as effectively confirmed by the Agreement. The implication that Defendant Deardorff needs a variance from the Zoning Hearing Board is denied. 7. Admitted in part and denied in part. It is admitted that the subject property is located in an Agricultural Zone. The remaining averments are conclusions of law to which no response is required. Defendant Deardorff has a, right to maintain a duplex style residential home on his property by virtue of the doctrine of vested rights, variance by estoppel or equitable estoppel. 8. a. Admitted. b. The response to paragraph 7 above is incorporated herein by reference. - 2 - c. It is admitted that Defendant Deardorff has not obtained a variance from the Monroe Township Zoning Hearing Board in order to maintain a duplex home. It is denied that Defendant needs such a variance because Defendant Deardorff has a right to maintain the duplex home by virtue of the doctrine of vested rights, variance by estoppel or equitable estoppel. WHEREFORE, Defendant Deardorff respectfully requests Your Honorable Court to deny Plaintiffs' Motion for Summary Judgment. Respectfully submitted, CLECKNER AND FEAREN Date: d 0(o By Dennis J. Shatto, Esquire Pa. Attorney ID 25675 119 Locust Street P. 0. Box 11847 Harrisburg, PA 17108-1847 717-238-1731 Attorneys for Defendant Harold E. Deardorff, Jr. - 3 - CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person (s) indicated below, by depositing same in the United States mail, postage prepaid at Harrisburg, Dauphin County, Pennsylvania, this /G ill day of November, 2006. Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 CLECKNER AND FEAREN By Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 ? ?=' C7 t__ ? ? ' . _ ?- ,_. ;,.? ?=- '? ,,. `_ Gr-, .k ?. ».- d ' f q ? - +:. NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY MONROE TOWNSHIP'S PRAECIPE FOR LISTING CASE FOR ARGUMENT 1. State matter to be argued: Defendant Monroe Township's Cross Motion for Summary Judgment. 2. Identify counsel who will argue case: (a) for Plaintiffs: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Telephone number: (717) 243-4574 (b) for Defendant Monroe Township: James D. Bogar, Esquire and Jennifer B. Hipp, Esquire One West Main Street, Shiremanstown, PA 17011 Telephone number: (717) 737-8761 3. Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Telephone: (717) 238-1731 4. (c) for Defendant Harold E. Deardorff, Jr.: We will notify all parties in writing within two days that this case has been listed for argument. Argument Court date December 6, 2006 Respectfully submitted, MONROE TOWNSHIP Dated: November 16, 2006 B Y : JenniferIB. Hipp, Esquire One West Main Street Shiremanstown, Pennsylvania 17011 (717) 737-8761 Supreme Court ID No. 86556 Solicitor for Monroe Township 2 0 NEVIN L. MYERS and PAMELA : IN THE COURT OF COMMON PLEAS OF S. MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants CERTIFICATE OF SERVICE On this date we do swear and affirm that a true and correct copy of Monroe Township's Praecipe for Listing Case for Argument in the above-captioned matter was served upon Nevin L. Myers and Pamela S. Myers by forwarding a copy thereof to Hubert X. Gilroy, Esquire, attorney of record for Plaintiffs, and upon Harold E. Deardorff, Jr., by forwarding a copy thereof to Dennis J. Shatto, Esquire, to the following addresses, by First Class United States Mail as follows: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Dated: November 16, 2006 BY:JfT7(J'F0 Jennqer B. Hipp, Esquire Pa. I:D. No. 86556 1 West Main Street Shiremanstown, PA 17011 (717) 7 37-87 61 - ? ° •? '=n ? ? < C? c _..a °_ r t_ --, - ? fi . ?._ . ,,?: y' ?'1 ?t ... : ?`?? + _ J? r " } it '; .,, ? .? .: NEVIN L. MYERS and IN THE COURT OF COMMON PLEAS PAMELA S. MYERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants NOTICE TO PLEAD TO: Nevin L. Myers and Pamela S. Myers C/o Hubert X. Gilroy, Esquire 4 North Hanover Street Carlisle, PA 17013 PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1035.3, YOU MUST FILE A WRITTEN RESPONSE TO THE ATTACHED MOTION FOR SUMMARY JUDGMENT WITHIN THIRTY (30) DAYS AFTER SERVICE OF THIS MOTION UPON YOU. By: Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P. 0. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 Attorney for Defendant, Harold E. Deardorff, Jr. NEVIN L. MYERS and IN THE COURT OF COMMON PLEAS PAMELA S. MYERS, CUMBERLAND COUNTY, PENNSYLANIA Plaintiffs vs. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants DEFENDANT DEARDORFF'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes Defendant Harold E. Deardorff, Jr., by and through his attorneys, Cleckner and Fearen, and files this Motion for Summary Judgment as follows: 1. On or about May 2, 2002, Deardorff applied to Monroe Township for a zoning permit to construct a dwelling. The application was accompanied by a drawing of a duplex dwelling he proposed to build. 2. On or about May 2, 2002, the Township issued to Deardorff Zoning Permit No. 2002-37. 3. On or about March 8, 2005, the Township granted an extension of the aforesaid permit to September 1, 2005. 4. By correspondence dated April 19, 2005, Plaintiff Nevin L. Myers requested information from the Township. A copy of said correspondence is attached to Deardorff Is Answer with New Matter as Exhibit A. In said correspondence, Plaintiff Nevin L. Myers indicates that the structure on Deardorff's property is "unquestionably a duplex." 5. By correspondence dated May 16, 2005, the Township responded to Mr. Myers' correspondence. A copy of said response is attached to Deardorff's Answer with New Matter as Exhibit B. 6. On September 13, 2005, Defendant Township of Monroe issued a stop work order to Defendant Deardorff. 7. By Order of Court dated October 19, 2005, in docket no. 05-5109, the Honorable J. Wesley Oler, Jr., preliminarily enjoined Defendant Deardorff from proceeding with construction of the duplex. 8. On or about January 12, 2006, Deardorff and the Township entered into an agreement, a copy of which is attached to Plaintiffs' Motion for Summary Judgment. 9. On or about January 12, 2006, the Township issued to Deardorff an extension of the aforesaid zoning permit through April 12, 2006, and by the terms of the agreement, the stop work order was deemed withdrawn. 10. Plaintiffs received a copy of the aforesaid agreement on or about February 6, 2006. 11. On or about March 20, 2006, pursuant to the agreement, the action filed to docket no. 05-5109 was withdrawn by the Township of Monroe. 12. On or about April 11, 2006, the Township issued to Deardorff occupancy permits for the two (2) separate dwelling units. 13. Plaintiffs did not file an appeal from the issuance of the zoning permit or from either extension to the zoning permit, or from the approval by the Township of the agreement or from the issuance of the occupancy permits. 14. Plaintiffs' complaint in paragraph 20 alleges monetary damages, and Plaintiffs have an adequate remedy of law. 15. The court lacks jurisdiction in equity. 16. Plaintiffs' complaint is barred by statute of limitations and doctrine of laches. 17. Defendant is entitled to continue the use of the building as a duplex under the doctrine of vested rights, variance by estoppel or equitable estoppel. 18. There is no genuine issue of material fact relative to Defendant Deardorff's defenses. WHEREFORE, Deardorff respectfully requests that this Honorable Court grant his Motion for Summary Judgment. Respectfully submitted, CLECKNER AND FEAREN By: /??, Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P. O. Box 11847 Harrisburg, PA 17108-1847 717-238-1731 Attorneys for Defendant, Harold E. Deardorff, Jr. CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person (s) indicated below, by depositing same in the United States mail, postage prepaid at Harrisburg, Dauphin County, Pennsylvania, this day of November, 2006. Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 CLECKNER AND FEAREN Y-19 CRT5`1?s J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 °"` CA r NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY DEFENDANT DEARDORFF`S PRAECIPE FOR LISTING CASE FOR ARGUMENT 1. State matter to be argued: Defendant Deardorff's Motion for Summary Judgment. 2. Identify counsel who will argue case: (a) for Plaintiffs: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Telephone number: (717) 243-4574 (b) for Defendant Monroe Township: James D. Bogar, Esquire and Jennifer B. Hipp, Esquire One West Main Street, Shiremanstown, PA 17011 Telephone number: (717) 737-8761 4. Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Telephone: (717) 238-1731 (c) for Defendant Harold E. Deardorff, Jr.: Argument Court date: December 6, 2006 Respectfully submitted, 3. We will notify all parties in writing within two days that this case has been listed for argument. CLECKNER AND F AREN BY: Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P. O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 Dated: November 16, 2006 Attorneys for Defendant Harold E. Deardorff, Jr. 2 J lb NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs v. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person(s) indi- cated below, by depositing same in the United States mail, postage prepaid at Harrisburg, Dauphin County, Pennsylvania, this 16 A day of November, 2006. Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 CLECKNER AND FEAREN By Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 r•a i' - 1°r tK+ I NEVIN L. MYERS and IN THE COURT OF COMMON PLEAS PAMELA S. MYERS, CUMBERLAND COUNTY, PENNSYLANIA Plaintiffs vs. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants AFFIDAVIT I, HAROLD E. DEARDORFF, JR., hereby affirm under penalty of perjury the following statements and any attached documents, are true, correct and authentic, to the best of my personal knowledge, information and belief: 1. I am one of the Defendants in the above matter. 2. On or about May 2, 2002, I applied to Monroe Township for a zoning permit to construct a dwelling. A true and correct copy of the application and drawing submitted with the application are attached hereto and labeled Exhibit "All. The drawing depicts a duplex dwelling. 3. On or about May 2, 2002, the Township issued to me Building Permit No. 2002-37. 4. On or about May 2, 2002, the Township issued to me a second driveway connection permit for the property, a copy of which is attached hereto and labeled Exhibit "B". 5. In June of 2002, and in reliance upon the zoning permit, I started construction of the duplex. 6. There was never anything temporary about any of the construction of the duplex. It was all permanent construction. 7. In connection with resolution of an issue involving expiration of my zoning permit, I received a copy of a letter dated June 1, 2004, which the Township solicitor issued to my attorney. A copy of that letter is attached hereto and labeled Exhibit "C". 8. By the time the aforesaid letter was received, the duplex was nearing substantial completion. 9. After the aforesaid letter was received, and reliance thereon, I continued to work toward substantial completion of the duplex and spent thousands of dollars for materials and invested thousands of dollars in value of labor into the construction. 10. In March of 2005, the Township renewed my zoning permit through September 1, 2005, and in reliance thereon, I continued to work on the construction of the duplex and spent money for materials. 11. On September 13, 2005, Monroe Township issued me a stop work order. 12. On October 19, 2005, the Honorable J. Wesley Oler, Jr. enjoined me from proceeding with construction, in docket no. 05- 5109. The action was withdrawn by the Township of Monroe in March of 2006. 13. On or about January 12, 2006, I entered into an agreement with the Township, a copy of which is attached hereto as Exhibit "D", and I received an additional renewal of my zoning permit through April 12, 2006. The stop work order was deemed withdrawn under the agreement. 14. After January 12, 2006, in reliance upon the agreement and the renewal of my zoning permit, I continued to work toward completion of the building, and spent thousands of dollars for materials and appliances, and invested thousands of dollars in value of labor into the construction. 15. I have paid $3,050.00 for a second sewer connection permit for the duplex, and in reliance thereon, I have installed the pipes and facilities for separate connection of the two (2) dwelling units in the duplex to the public sanitary sewer system. 16. On April 11, 2006, I received from the Township, occupancy permits for both dwelling units in the duplex. 17. Plaintiffs resided directly next door to the building during the entire time it was under construction, and had actual notice and knowledge of the status of construction. 18. At or on several occasions up to the Spring of 2005, Plaintiff Nevin L. Myers assisted me with unloading construction materials for the duplex, and we had a friendly relationship. 2 APPLICATION FOR ZONING PERMIT Township of Monroe, Cumberland County, Pennsylvania DATE ! ?.. r' PERMIT sN?O. 37 Cumberland County Tax Assessment Parcel No. Application (IN TRIPLICATE) Is hereby made to the Township for a Zoning Permit in conformity with the requirements of Zoning Ordinance, dated June 30, 1970, and any amendme is herefo_f t e following described work: Property Location`?f The undersigned applicant hereby applies for a permit to. , D Erect a structure ix, f, Add to a structure Estimated cost of proposed work: Altera structure Erect a sign s A/ I Change a use $_fC t,J EXISTING PROPOSED PRESENT USE OF PROPERTY: 6..r r?( families stories material Submitted herewith (IN TRIPLICATE) is a scale drawing, fully dimensioned, of the lot showing proposed work and/or existing structure. Use of adjoining lot or lots is 1 f IL / .a j j ,?1 1 ? Name of:!" r??? Phone # Lessee Address --y owner-f ??1 ?! ° I?r C f ddress !? Ali/'. ?!, (. Jil !r,. ! rY? -t . I?'7 Architect Address ?-? r"P Contractor f l Address r> The construction applied for herein shall be accomplished by, Date: if not, this Zoning Permit shall be void. f cr Fee of paid:Ir Zoning Off&6r Date: c / ?j- Si nat a of Applic it g 010d Copy for: Monroe Twp. Cumberland Co. Applicant ___ f if applicable: Sewage Permit date issued: (Jby which SEO: EXHIBIT ALL•STATE® INTERNATIONAL. r r 7 n 1. ? n o?A '? V e f CG r ? ,A f ? TOWNSHIP DRIVEWAY CONSr .('RUCTION PERMIT All work under is i 01e cornSleted on or before: -"?C? *Permit void after this date. Immediately upon completion of the work, permittee should notify the Township. Petrmiccinn is hernhv nranted tn• Date Issued o Total Fees ?D ;.- Permit # Auylal N f Applic 1 Twp Route No., Road (Where work is to be done) Under and subject to all the conditions, restrictions, and regulations prescribed by the Township on the reverse hereof and on the general provisions and specifications, a true copy whereof is attached and made a part hereof, with the same force and effect as if written or printed herein and under and subject to the special conditions, restrictions, and regulations hereinafter set forth. Residential driveway to be installed per application. Driveway shall contain Swale of sufficient depth at gutter line so as not to impede surface water flow. Driveway shall not exceed roadway height where they meet. ? h Approx. Date work to be started: ? UIZL d ?6 Approx. D,ote work to be completed: The road surface is improved to a width of. Feet. Distance from center of line to roadway to gutter or ditch: Feet. Distance from center line of road to Right-of-Way line: Feet. The Township Board of Supervisors, may at any time revoke and annul this permit for non-performance of, or non-compliance with any of the conditions, restrictions, and regulations hereof. PPROVED: Day i Signature of Applicant Year Signature of Zoning Officer, N*oe Township IMPORTANT The terms and conditions embodied in this permit require the permittee to complete this work by the date specified in the permit. Where permittee fails to comply with the condition as to completion of work by the time specified, the following rules will govern: (A) Failure to start work by date specified for completion. Permit will be canceled unless permittee desires an extension of time, in which case a supplemental permit may be issued. (B) Work started and not completed by specified date. Permittee will notify Township, prior to expiration of allotted time, of inability to complete the work on or before the date specified and request an extension of time. Such request shall be accompanied by the prescribed fee. (C) Permittee not desirous of carrying out proposed work on account of change in conditions affecting it. Permittee will notify the Township prior to the date specified for completion that work will not be carried forward, returning the permit with such notice. The fee for inspection of the work will be refunded by the Township, provided that they have been notified of cancellation prior to the expiration date. The fees to be paid under the conditions in (a), (b), and (C) apply only to permits for which fees are collected in accordance with the fixed schedule. All notices relative to time extensions or cancellations shall arded to the Township which issued the original permit. EXHIBIT Post Office Zip Code JAMES D. B OGAR ATTORNEY AT LAW ONE WEST MAIN STREET SHIREMANSTOWN, PENNSYLVANIA 17011 e-mail mail@bogarlaw.com JAMES D. BOGAR JENNIFER B. HIPP* -Also admitted to New Jersey Bar June 1, 2004 VIA FACSIMILE TRANSMISSION - 975-3871 AND FIRST CLASS MAIL W. Scott Staruch, Esquire Laws,. Staruch & Pisarcik 20 Erford Road, Suite 305 Lemoyne, PA 17043-1163 Dear Mr. Staruch: RE: Monroe Township - Harold E. Deardorff, Jr. 1294 Brandt Road Zoning Permit TELEPHONE (717) 737-8761 FACSIMILE (717) 737-2086 Direct e-mail Jbogar®bogarlaw.com We write in response to your letter dated May 25, 2004 with respect to the above-captioned matter. It is our understanding that you will be representing Harold E. Deardorff, Jr. Given that we have previously had difficulty in forwarding correspondence to Mr. Deardorff, all future correspondence will be forwarded to you as his attorney. Please be advised that Monroe Township will grant an certificate of use permit to Mr. Deardorff upon his completion of the two (2) unit dwelling that he is constructing at the above- referenced property. Prior to issuing the certificate of use permit, it will be necessary for Mr. Deardorff to satisfy any and all requirements of the Monroe Township Municipal Authority. We are advised that Joanne M. Hollister, Operations Manager of the Authority, that the construction of this two (2) unit dwelling will require two (2) connection permits and the payment of two (2) connection fees. Monroe Township will agree to extend the thirty (30) day compliance period to and including Friday, June 18, 2004. In the event the above-referenced conditions and terms are unacceptable, this matter will proceed forward. EXHIBIT _C_ ALL-STATE® INTERNATIONAL W. Scott Staruch, Esquire June 1, 2004 Page 2 We look forward to hearing from you accordingly. Very tru yours, J ES D. B GAR, Solicitor L Monroe Towns lp JDB/bbl cc: Monroe Township Board of Supervisors; Marjorie E. Metzger, Secretary/Treasurer(via fax -258-9311) Gregory R. Rogalski, P.E. (via fax - 975-6480) AGREEMENT THIS AGREEMENT, made this /y day of d1olti4j,?1, 20045, by and between HAROLD E. DEARDORFF, JR., (hereinafter "Deardorff"), and TOWNSHIP OF MONROE, Cumberland County, Pennsylvania (hereinafter "Township"). W I T N E S S E T H: WHEREAS, Deardorff has constructed, on property he owns within the Township at 1294 Brandt Road, a two-story structure, consisting of two separate single-family dwelling units, in a "duplex" configuration; each duplex consists of the upper floor unit and a lower level unimproved unit; and WHEREAS, Deardorff received a zoning permit on or about May 2, 2002, known as Permit No. 2002-37, which expired, and was ultimately extended through September 1, 2005; and WHEREAS, construction of the duplex structure was not completed by Deardorff on or before September 1, 2005;; and WHEREAS, a Stop Work Order dated September 13, 2005, was issued by Township to Deardorff, and by Order dated October 19, 2005, The Honorable J. Wesley Oler, Jr. enjoined Deardorff from working in the building; and WHEREAS, Township has requested, and Deardorff has agreed to obtain, a second sewer connection permit for the building and EXHIBIT ___,1Z_ ALL-STATE®INTERNATIONAL Deardorff has agreed to pay the required connection fee of $3,050.00; and WHEREAS, Township has filed a Municipal Lien for Services and Sewer Rates to Cumberland County, Docket No. 05-5742, and the Township has requested and Deardorff has agreed to pay the amount of $1,479.47 in order to satisfy the said Municipal Lien; and WHEREAS, Township has filed a proceeding before District Justice Gayle Elder requesting a fine from Deardorff, which proceeding is pending a hearing; and WHEREAS, Deardorff has filed an appeal of the Stop Work Order and a request for variance with the Monroe Township Zoning Hearing Board, and a petition to remove the preliminary injunction entered by Judge Oler, as well as an application for extension of the zoning permit; and WHEREAS, the parties hereto have reached an agreement for the resolution of various disputes, claims and filings heretofore described, NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows: 1. The Township shall extend Deardorff's Zoning Permit No. 2002-37 for a period of ninety (90) days, commencing upon the date this Agreement has been fully executed, and Deardorff agrees that the construction will be completed within that period of time sufficiently to entitle Deardorff to an occupancy permit. The Stop 2 Work Order shall be considered withdrawn upon issuance of the permit extension. 2. Deardorff and his successors and assigns shall have the right to use the building as a duplex dwelling, each duplex consisting of the upper floor unit and lower unit directly underneath. The lower level of the duplex shall not be used for commercial or personal storage purposes for anyone who is not residing there. This storage prohibition shall also apply to Deardorff during such times as he is not residing there. 3. Deardorff shall pay to Township, on the date of execution of this agreement, in cash or certified funds or other manner acceptable to Township, the sum of $3,050.00 in full payment of the balance due on the second connection fee, and the payoff for the lien, by which as of November 29, 2005, had a balance of $1,479.47. 4. Wthin fifteen (15) days after issuance of an occupancy permit to Deardorff, the Township shall withdraw, at no cost to Deardorff, the citation heretofore filed with District Justice Gayle Elder, and Township shall take whatever action is reasonably necessary to have the preliminary injunction dissolved and the equity action marked discontinued, all at no cost to Deardorff. 5. Deardorff shall reasonably cooperate with Township in the withdrawal of the preliminary injunction and discontinuance of the 3 equity action, including, if necessary, withdrawal of his petition to remove the injunction. 6. The parties agree that the proceedings filed by Deardorff with the Zoning Hearing Board shall be continued generally until March 31, 2006 to accommodate the parties in consummation of the terms of this agreement. 7. Deardorff shall allow access to all parts of the structure to Gregory Rogalski, zoning officer for Township, on or before December 2, 2005, so that Mr. Rogalski may confirm the veracity of Deardorff's representation that only two dwelling units have been constructed within the building. 8. All other terms and conditions of this agreement are expressly contingent upon Deardorff allowing access and upon the truth of his aforesaid representation. 9. The Township shall not require that Deardorff comply with the requirements of the Uniform Construction Code, adopted by Township on July 1, 2004. 10. This agreement is contingent upon Deardorff, his successors and assigns, having the right to use the building as a duplex, and the parties agree to reasonably cooperate in completing any documents, filings or actions reasonably necessary in the confirmation of such use. 4 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. ATTEST: TOWNSHIP OF MONROE 1 BY: -- J KEVIN R. MILLER, Chairman WITNESS: ' ?V AROLD E. DEAR RFF, JR. 5 CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person (s) indicated below, by depositing same in the United States mail, postage prepaid at Harrisburg, Dauphin County, Pennsylvania, this 17th day of November, 2006. Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 CLECKNER AND FEAREN By Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 ? ? t!4 Y.. ?. _? .? _:? _.? r ? ?; • w NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY MONROE TOWNSHIP'S PRAECIPE FOR LISTING CASE FOR ARGUMENT 1. State matter to be argued: Defendant Monroe Township's Cross Motion for Summary Judgment. 2. Identify counsel who will argue case: (a) for Plaintiffs: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Telephone number: (717) 243-4574 (b) for Defendant Monroe Township: James D. Bogar, Esquire and Jennifer B. Hipp, Esquire One West Main Street, Shiremanstown, PA 17011 Telephone number: (717) 737-8761 3. Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Telephone: (717) 238-1731 4. (c) for Defendant Harold E. Deardorff, Jr.: We will notify all parties in writing within two days that this case has been listed for argument. Argument Court date: January 24, 2007 Respectfully submitted, MONROE TOWNSHIP Dated: November 29, 2006 BY: 1 - M2 Jennifer . Hipp, Esquire One West M in Street Shiremanstown, Pennsylvania 17011 (717) 737-8761 Supreme Court ID No. 86556 Solicitor for Monroe Township 2 NEVIN L. MYERS and PAMELA IN THE COURT OF COMMON PLEAS OF S. MYERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants CERTIFICATE OF SERVICE On this date we do swear and affirm that a true and correct copy of Monroe Township's Praecipe for Listing Case for Argument in the above-captioned matter was served upon Nevin L. Myers and Pamela S. Myers by forwarding a copy thereof to Hubert X. Gilroy, Esquire, attorney of record for Plaintiffs, and upon Harold E. Deardorff, Jr., by forwarding a copy thereof to Dennis J. Shatto, Esquire, to the following addresses, by First Class United States Mail as follows: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Dated: November 2Q, 2006 By: l Je fer B. Hipp, Esquire Pa. T.D. No. 86556 1 West Main Street Shiremanstown, PA 17011 (717) 737-8761 C7 ? a C ,1. • -? VII ? y? - ?? CJ " r 77 D ? --. NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY MONROE TOWNSHIP'S PRAECIPE FOR LISTING CASE FOR ARGUMENT 1. State matter to be argued: Plaintiffs Nevin L. Myers and Pamela S. Myers's Motion for Summary Judgment. 2. Identify counsel who will argue case: (a) for Plaintiffs: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Telephone number: (717) 243-4574 (b) for Defendant Monroe Township: James D. Bogar, Esquire and Jennifer B. Hipp, Esquire One West Main Street, Shiremanstown, PA 17011 Telephone number: (717) 737-8761 (c) for Defendant Harold E. Deardorff, Jr.: Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Telephone: (717) 238-1731 3 4. We will notify all parties in writing within two days that this case has been listed for argument. Argument Court date: Dated: November 2?, 2006 January 24, 2007 Respectfully submitted, MONROE TOWNSHIP BY : 'a Jenni r . Hi p, Esquire One Wes in Street Shiremanstown, Pennsylvania 17011 (717) 737-8761 Supreme Court ID No. 86556 Solicitor for Monroe Township 2 t -. NEVIN L. MYERS and PAMELA : IN THE COURT OF COMMON PLEAS OF S. MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants CERTIFICATE OF SERVICE On this date we do swear and affirm that a true and correct copy of Monroe Township's Praecipe for Listing Case for Argument in the above-captioned matter was served upon Nevin L. Myers and Pamela S. Myers by forwarding a copy thereof to Hubert X. Gilroy, Esquire, attorney of record for Plaintiffs, and upon Harold E. Deardorff, Jr., by forwarding a copy thereof to Dennis J. Shatto, Esquire, to the following addresses, by First Class United States Mail as follows: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Dated: November 21, 2006 By: d Jennif Pa. I,D ld. B. Hipp, Esquire No. 86556 1 West Main Street Shiremanstown, PA 17011 (717) 737-8761 rra c? a ." 3 r-I N ?' rn ?_; e 40 1% NEVIN L. MYERS and PAMELA : IN THE COURT OF COMMON PLEAS OF S. MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants PRAECIPE To the Prothonotary, Curtis R. Long: Dear Mr. Long: Please remove Defendant Monroe Township's Cross Motion for Summary Judgment from the Court of Common Pleas of Cumberland County's Argument Court scheduled for December 6, 2006. Date: November 29, 2006 J-,-?orvn Jennifer B. Hipp, Esquire Pa. I.D. No. 86556 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Solicitor for Monroe Township .? w NEVIN L. MYERS and PAMELA IN THE COURT OF COMMON PLEAS OF S. MYERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants CERTIFICATE OF SERVICE On this date we do swear and affirm that a true and correct copy of Monroe Township's Praecipe in the above-captioned matter was served upon Nevin L. Myers and Pamela S. Myers by forwarding a copy thereof to Hubert X. Gilroy, Esquire, attorney of record for Plaintiffs, and upon Harold E. Deardorff, Jr., by forwarding a copy thereof to Dennis J. Shatto, Esquire, to the following addresses, by First Class United States Mail as follows: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Dated: November 29, 2006 By: ( J/?? ///70 Jenn er B. Hipp, Esquire Pa. .D. No. 86556 1 West Main Street Shiremanstown, PA 17011 (717) 737-8761 t -. A% NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY PRAECIPE To the Prothonotary, Curtis R. Long: Dear Mr. Long: Please remove Plaintiffs Nevin L. Myers and Pamela S. Myers' Motion for Summary Judgment from the Court of Common Pleas of Cumber- land County's Argument Court scheduled for December 6, 2006. Date: November 29, 2006 Jenni ter B. Hipp, Esquire Pa. I.D. No. 86556 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Solicitor for Monroe Township NEVIN L. MYERS and PAMELA : IN THE COURT OF COMMON PLEAS OF S. MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants CERTIFICATE OF SERVICE On this date we do swear and affirm that a true and correct copy of Monroe Township's Praecipe in the above-captioned matter was served upon Nevin L. Myers and Pamela S. Myers by forwarding a copy thereof to Hubert X. Gilroy, Esquire, attorney of record for Plaintiffs, and upon Harold E. Deardorff, Jr., by forwarding a copy thereof to Dennis J. Shatto, Esquire, to the following addresses, by First Class United States Mail as follows: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Dated: November 29, 2006 By : Jenn er B. Hipp, Esquire Pa. I.D. No. 86556 1 West Main Street Shiremanstown, PA 17011 (717) 737-8761 C-) C=) -rt 73 • „ ?? ICJ o m ;? N ---.t s -% NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants TO THE PROTHONOTARY: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY PRAECIPE Please withdraw the above-captioned action from the December 6, 2006 argument court list. Respectfully submitted, CLECKNER AND FEAREN By: Z"a" Dennis J. Shatto, squire PA Attorney ID #25675 119 Locust Street P. 0. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 a -' NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person(s) indi- cated below, by depositing same in the United States mail, postage prepaid at Harrisburg, Dauphin County, Pennsylvania, this 2-5 "day of November, 2006. Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 CLECKNER AND FEAREN By Dennis J. Shatto, Es ire PA Attorney ID #25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 Fri fl ' - CJ C,? „} t.r? r NEVIN L. MYERS and PAMELA : IN THE COURT OF COMMON PLEAS OF S. MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants DEFENDANT DEARDORFF'S PRAECIPE FOR LISTING CASE FOR ARGUMENT 1. State matter to be argued: Defendant Deardorff's Motion for Summary Judgment. 2. Identify counsel who will argue case: (a) for Plaintiffs: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Telephone number: (717) 243-4574 (b) for Defendant Monroe Township: James D. Bogar, Esquire and Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 Telephone number: (717) 737-8761 f a 3. Dennis J. Shatto, Esquire Cleckner & Fearen 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 Telephone: (717) 238-1731 4. (c) for Defendant Harold E. Deardorff, Jr.: We will notify all parties in writing within two days that this case has been listed for argument. Argument Court date January 24, 2007 Respectfully submitted, CLECKNER ANDI"IFEAREN Dated: November 28, 2006 BY: Dennis J. Shatto, Esq ire PA Attorney ID 42567 119 Locust Street P. 0. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 Attorneys for Defendant Harold E. Deardorff, Jr. 2 NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person(s) indi- cated below, by depositing same in the United States mail, postage prepaid at Harrisburg, Dauphin County, Pennsylvania, this day of November, 2006. Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 CLECKNER AND FEAREN By _- Z? De is J. Shatto, Esq 're PA Attorney ID #25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 C) O C n c CZ-3 - CL) ril m 26 Nevin L. Myers and Pamela S. Myers IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. Township of Monroe and Harold E. Deardorff, Jr. : NO. 06-2466 CIVIL TERM ORDER OF COURT AND NOW, December 7, 2006, by agreement of counsel, the above-captioned matter is continued from the December 6, 2006 Argument Court list. Counsel is directed to relist the case when ready. By the Edgar B. Bayley, J. Hubert X. Gilroy, Esquire For the Plaintiff James D. Bogar, Esquire \ 1 _ U - Jennifer B. Hipp, Esquire Dennis J. Shatto, Esquire For the Defendant(s) Court Administrator kam rt -4j ij Z t. -, 8 14 - 330 9002 v III ? -.I, , ,fi t NEVIN L. MYERS and PAMELA S. MYERS, PENNSYLVANIA Plaintiffs VS. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, NO. 06-2466 CIVIL TERM CIVIL ACTION -EQUITY PLAINTIFFS ANSWER TO MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT DEARDORFF Plaintiffs, Nevin L. Myers and Pamela S. Myers, by their counsel, Broujos & Gilroy, P.C., set forth the following in response to Defendant Deardorff 's Motion for Summary Judgment: 1. Admitted that Defendant Deardorff applied to Monroe Township for a Zoning Permit. Denied that Zoning Permit was to "construct a dwelling". On the contrary, the Permit suggested a single-family dwelling. It is further denied that the drawing accompanied by the Application was that of a duplex. By way of further Answer, see attached Exhibit `A', letter dated May 25, 2004 from Attorney W. Scott Staruch to the Monroe Township Board of Supervisors, wherein it states, "It was Harold's desire to replace the trailer with a single family residence, to include in-laws quarters." 2. Admitted. 3. Admitted. 4. Denied. Plaintiff Nevin L. Myers' April 19, 2005 correspondence actually states "In its current layout, this building is unquestionably a duplex." By way of further answer, see attached Exhibit 111% the Daily Field Report, dated December 2, 2005, by Gregory R. Rogalski, Township Zoning Officer, which details plan deviations from the original permit drawing. 5. Admitted. 6. Admitted. 7. Admitted. By way of further answer, Plaintiff Nevin L. Myers testified at hearings in these proceedings in support of the Township's position. 8. Admitted. By way of further answer, Plaintiffs were not aware of the Settlement Agreement and, although the Township was aware the Plaintiffs were interested in the case and desired to enforce the Ordinance, the Township did not volunteer to provide Plaintiffs with information concerning the existence of the Settlement Agreement. 9. Admitted. 10. Admitted. By way of further answer, said Agreement was not provided to Plaintiffs until Plaintiffs filed a Public Record Request. 11. Admitted. 12. Admitted. 13. Admitted. 14. Denied. Section 700.5 of the Monroe Township Zoning Ordinance specified Plaintiffs' remedy in this matter. 15. Denied. Said allegation is a Conclusion of Law. 16. Denied. Said allegation is a Conclusion of Law. 17. Denied. Said allegation is a Conclusion of Law. 18. Denies. Said allegation is a Conclusion of Law. WHEREFORE, the Plaintiffs request your Honorable Court to issue a Judgment in favor of Plaintiffs consistent with the Motion for Summary Judgment filed by Plaintiffs. Respectfully submitted, Date: / ?2-- ? ? " U (a Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 N. Hanover Street Carlisle, PA 17013 (717) 2434574 Attorney for Plaintiffs 1-isarcil i 20 ord Road. Suits 05, Lemoyne. PA 1704')-1163 `?' I f 717 -0 00 Fax (7117) 975-338 Y" 1 LSPlaw@aol.com May 2, 2004 Samuel M. Simmons, Eli A.'. Castle, ill Kevin R. Miller Monroe Township Board of Supervisors 1223 Boiling Springs Rd. Mechanicsburg, P 17055-971914 Fie. Owner Harold E. Deardo-~, Jr. Property Location: 1294 E ndt Road, Monroe Twp., Cumberland County, PA Gentlemen; Our c::.re rapt ° xr -- arold Deardorff, jr. On May 3, 20C„ -. E ardor, received the erciose : Etter from Mr, Gregory R. Rogalski, P.E., current Monroe T o%% nship Zoning Officer, requesting elder certain changes to the above-referenced residence constructed by Mr. Deardorff, or application for a variance to the Township's Zoning Hearing Board within 30 days. Mr, Rogalski's letter concluded by stating that the Township looked forward to resolOng these issues in a timely manner to avoid any further enforcement a-? ;om Mr. Deardorff shares your In order to craft an eguitab e rest ,: n of this ? ter, you must understand the background facts. Harold Deardorff r;wns l_cts Ut 10 and 11 on the enclosed Allen Heights Subdivision Plan, adjacent to the 'i lage of C'nurcnt ??r. r;gir?aily. ::as a trailer situated on the property. It v° as Haro!d's des`Y_ ` replace the trailerwith a single family residence, to include in-law quarters. To tt E-t end, he r, with Mr. Richard G. Long, the Township Zoning Officer, and, to Harold's understanding, Township Manager. fist that meeting, Harold presented Mr. Long with a list of materials (copy enclosed), togett:erwith a sketch plan forthe residence to be constructed, which was discussed at some e- `'r, Lone, The plan shows tl iat the in-law quarters we-. to have their own dining room, a :? .. ? entry rs would he seo2rated but still convenie ?-` connected by means of a coy , _•. ??. across t = ont of tf e Since the residence EXHIBIT A Monroe Township Board of Supervisors Page 2 May 25, 2004 would be flanked by 2 garages, and only I driveway existed.at that time for the trailer, a second ?i- reway permit would' b? equired, When Harold presented his plans to Mr. Long, they were contained o 2 81/2x11- inch sheets of paper. It was Mr. Lone who then assisted Harc'd in cutting and pasting the 2 sheets as necessary so that the n could be copied onto a lIe 11x17-inch sheet of pacer (copy enclosed). As Harold exp'-a ,, z-d r. s in tentions, Mr. Long ?s -_?d him that there were W s-r single family houses in the Tow- - `~ vw -h in-law quarters, so , -:Id`s building would nct ' __ uncommon, In fact, they even c _=-.. s v j the singgl ewer hcolk .: ?; s typical for such a structure. As Harald and Mr. Long discussed Harold°s design, Mr. Lang filled out the applications for Zoning Permits Nos. 2002-36 and 2002-37, o .? for the removal of the mobile home and the second for the construction of the residence (copies enclosed). '- order to e?eu? ?,? tip se cnd driveway, Mr, Long filled out a Township Driveway Gc .s' t u. cn ?. wit i s _ v;os c i. illy, Mr. long -ampi ted the Certificate of Use Mrrnit, together with Zc,7 i-,- Fern- , Nos, 2002 `. ? and 2002-37, as well as the Monroe Township Fee Schedule on wiiich oy his hearlld ritirltg he totaled the amou,: due from Mr. Deardorff, whit, sum was paid by Harold (copies of ali enclosed). As rioted on the rv, t Applications, Harold was performing the construction essentially himself. Consequer.ir, it took longer to construct the residence than anticipa-ed. Ii hen he spoke with Mr. Long c;cce:- of last year, he exp""?::~: d that weather permit -: W re expected to have the hctisv cc . 1- Y by the spMng„ and they , scisse the need for a fur`har extension. At that time. Mr. Long a ,. iced Harold that they ccu.:-J, deal With this paperworik when the horse was complete and wrap ?t LIp at that time, Harold Ce,Mrdorff t `n engineer or an attar =: a- He carne to the Township, c* Io c Tact Cx <.w, what he would iC do,, Dai{? yh his fees, )atT?,^dy? "?+' as guided li? O?..i+ .~-e aDp,.........-i ii Y.. or-_C,.=_:.,.s' uy t#1 ej 4E lP7o 16?`.^." Town shin officer. Harold should not be penalized because of creating in-law quarters with more amenities than are usually provided. If you have ever had your oven adult children or older in-laws living with you for any length of ti,~ne, you can certainly appreciate the value of providing as many separate facilities as possible in o, u r to reduce the potential for farriily friction. Mr. I3eardorff has -c3nr nothing w, ong. The - :ly technicality at issue is the necessity for permit extension, which a--old understood would l .fined and paid for at the time of his final inspection- He certainly experts to live up to that ob 1-,e bid is-::re r ... r, is that prop._-,, ar`d legally applied for and ^btnined u Y r,..:`crthe r-, is nt .. r _-Ymplete.. 'ease reconsider your position in I1: v` C t t i +yu ;t c, , uv _ . and I w`, .alp )e 1 3p. , ` e meet with you if necessary, to resci r u ih. ^':3'.t e" cr,, ?a ar`"rc i ?S,s. Monroe Township Board of Supervisors Page 3 May 25, 2004 My time in my office has been rather curtailed over the past few months by my wife's medical condition; and I will be out of the office the remainder of this week because of college obligations with my son. I note that Mr. Rogalskfs letter requires an appeal to the Township's Zoning Hearing Board within 30 days of receipt of his letter, which would mean such an appeal would have to be filed by this coming Wednesday, June 2. Can you please advise simply by fax or telephone call to my office that an extension of that time will be granted, or that a follow-up letter will be sent triggering a new 30-day period, so that you have an opportunity to considerthis matter priorto Mr. Deardorff having to incurfurthercosts forpreparing and filing such an appeal. Thank you. WSS:doe Enclosures cc Gregor R. Rogalski, P.E. 7aes D. Bogar, Esq. Harold E. Deardorff, Jr. nd66 y bl ddV Ali UJAIJJJd +E''1nO?t1l DAILY FIELD REPORT Project: 1294 Brandt Road _ Date: 12/02/2005 b No: MNTP 00406.03/143 Time: On: 10:00 AM Off. 10:20 AM Weather: Cold & Windy -35 degrees Other Conditions: Remarks: On-site at Solicitor's request to perform walk-thru to determine status of construction. For the purposes of this report, unit designations are as follows: UNIT A - Left or West Side as looking from Brandt Road UNIT B - Right or East Side as looking from Brandt Road Signed: -----------OVER--------»-- EXHIBIT MU05 0712002 1 of 2 800/9000 XVa SZ :LT aZM 900Z/6T/40 Men and Equipment: None (CONTINUED NEXT PAGE) M66:9 v Project No: MNTP 00406.03/143 Date:. 12/02/2005 Remarks (Con't) UNIT B - Unit generally complete including carpeting, tile, cabinets and countertops. Installation of electrical fixtures, connection of plumbing fixtures and finish work remain The following plan minor plan deviations were noted: 1 Kitchen Area - Smaller cabinet area than illustrated on plan 2 Porch area on plan has been enclosed and appears to be a bedroom 3. Bedroom #1 and #2 have been switched. 4. Minor changes to closet configurations were noted. Unit B does not have stairs to the basement below and does not have a connection to Unit A. UNIT A - Unit structurally complete with rough plumbing and electrical and drywall installation. Finish work remains to be completed including painting, trim, cabinets, countertops, fixtures and flooring. The following plan minor plan deviations were noted: 1 There are no stairs to the basement or other areas. No structural provisions for the future installation of stairs have been made. 2 Minor changes to closet configurations were noted. Unit A does not have stairs to the basement below and does not have a connection to Unit B. UNIT A BASEMENT - Access provided from separate entrance at rear of structure. Basement is structural only with stone floor and CMU wails with no finishes and no mechancials. Rough electric has been installed to panel. (CONTINUED NEXT PAGE) Signed: -----NEXT MU05 0712002 2of2 6lrrM 3lNIi 03AIDR, Sheet: 2 of 3 .... ...... --- -._...- 800/L00O XVA 9Z :LT CaM 900Z/6T/i70 WdGG?S '6l '?dtl 3WII UA1333? Project No: MNTP 00406.03/143 Date: 12/02/2005 Sheet: 3 . of 3 Remarks (Con't) UNIT B BASEMENT - Access provided from separate entrance at rear of structure. Basement is structural only with stone floor and CMU walls with no finishes. Concrete mechanical pad installed In one area of basement with hot water heater and furnace. UNIT A BASEMENT AND UNIT B BASEMENT DID NOT MEET THE DEFINITION OF DWELLING UNITS AS DEFINED BY THE MONROE TOWNSHIP ZONING ORDINANCE. Exterior - Exterior of home is substanatiaily complete including siding and retaining walls. 1. Electric Service had Middle Department Inspection Agency sticker on meter base, however ink has disappeared due to weather. 2. Fine grading of lot is generally complete. Landscaping is not complete. HOUSE APPEARS TO BE A TWO-UNIT DUPLEX AT THIS TIME Bessie Deardorff asked the following questions: 1. Would a partial Cetificate of Use be Issued for one unit 0 the other was not complete? RESPONSE - Yes, as long as the terms of the pending agreement have been met and the unit passes the Certificate of Use inspection. 2. Would the future installation of a screen wall on the east side of the property require permits? RESPONSE - Yes, a zoning permit will be required and a building permit may be required based on the desired height of the wall MUGS 07/2002 2of2 __ , Goo/ so o1zxasl 9Z:ci aaM 900Z/67/ti0 VERIFICATION I verify that the statements in the foregoing pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities. axa I-JA64??- Pamela S. Myers 01- VERIFICATION I verify that the statements in the foregoing pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities. Nevin L. Myers n `` _.> : : -n . - --- _.. , r ? _? -,_, , ; ? ? ??. t' ?, _ ; _.. _ t __ ,,._ =? NEVIN L. MYERS and PAMELA S. MYERS, PENNSYLVANIA Plaintiffs VS. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, NO. 06-2466 CIVIL TERM CIVIL ACTION -EQUITY PLAINTIFFS ANSWER TO MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT DEARDORFF Plaintiffs, Nevin L. Myers and Pamela S. Myers, by their counsel, Broujos & Gilroy, P.C., set forth the following in response to Defendant Deardorff 's Motion for Summary Judgment: 1. Admitted that Defendant Deardorff applied to Monroe Township for a Zoning Permit. Denied that Zoning Permit was to "construct a dwelling". On the contrary, the Permit suggested a single-family dwelling. It is further denied that the drawing accompanied by the Application was that of a duplex. By way of further Answer, see attached Exhibit `A', letter dated May 25, 2004 from Attorney W. Scott Staruch to the Monroe Township Board of Supervisors, wherein it states, "It was Harold's desire to replace the trailer with a single family residence, to include in-laws quarters." 2. Admitted. 3. Admitted. 4. Denied. Plaintiff Nevin L. Myers' April 19, 2005 correspondence actually states "In its current layout, this building is unquestionably a duplex." By way of further answer, see attached Exhibit `B', the Daily Field Report, dated December 2, 2005, by Gregory R. Rogalski, Township Zoning Officer, which details plan deviations from the original permit drawing. 5. Admitted. 6. Admitted. 7. Admitted. By way of further answer, Plaintiff Nevin L. Myers testified at hearings in these proceedings in support of the Township's position. 8. Admitted. By way of further answer, Plaintiffs were not aware of the Settlement Agreement and, although the Township was aware the Plaintiffs were interested in the case and desired to enforce the Ordinance, the Township did not volunteer to provide Plaintiffs with information concerning the existence of the Settlement Agreement. 9. Admitted. 10. Admitted. By way of further answer, said Agreement was not provided to Plaintiffs until Plaintiffs filed a Public Record Request. 11. Admitted. 12. Admitted. 13. Admitted. 14. Denied. Section 700.5 of the Monroe Township Zoning Ordinance specified Plaintiffs' remedy in this matter. 15. Denied. Said allegation is a Conclusion of Law. 16. Denied. Said allegation is a Conclusion of Law. 17. Denied. Said allegation is a Conclusion of Law. 18. Denies. Said allegation is a Conclusion of Law. WHEREFORE, the Plaintiffs request your Honorable Court to issue a Judgment in favor of Plaintiffs consistent with the Motion for Summary Judgment filed by Plaintiffs. Respectfully submitted, Date: / ?2- (b- O (V Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 N. Hanover Street Carlisle, PA 17013 (717) 2434574 Attorney for Plaintiffs Laws, Sfaruch,& Pis arc 1*1 20 Erford Road, Suite 305, Lemoyne. PA 170=13-1163 (717) 9 f 5-0600 Fax ('717) 975-38" 1 LSPlaw@aol.com May 25, 2004 Samuel M. Simmons, Ill A.ViI. Castle, Ill Kevin R. Miller Monroe Township Beard of Supervisors 1220 Boiling Springs ;Rd. Mechanicsburg, PA 17055-9794 Re: Owner; Harold E. Deardorff, Jr. Property Location: 1294 Brandt Road, Monroe Twp., Cumberland County, PA Gentemen: Our office represents Mr. Harold 'E. Deardorff, Jr, On May 3; 2004, NAr. Deardorff received the enclosed letter from Mr. Gregory R. Rogalski, P. E., current Monroe Township Zoning Officer, requesting either certain changes to the above-referenced residence constructed by Mr. Deardorff, or application for a variance to the Township's Zoning Hearing Board within 30 days. Mr. Rogalski's letter concluded by stating that the Township looked forward to resolving these issues in a timely manner to avoid any further enforcement action. Mr. Deardorff, shares your desire. In order to craft an equitable reso ution of this matter, you must understand the background facts. Harold Deardorff owns Lots ?, 10 and 11 on the enclosed Allen Heights Subdivision Plan, adjacent to the Village c= Cnurc tcwn. :originally, there -was a trailer situated on `Fe property, it was Harold's desire to replace the trailerwith a single family residence, to include in-law quarters. To that end, he met with Mr. Richard C. Long, the Township Zoning Officer, and, to Harold's understanding, Township Manager. At that meeting, Harold presented Mr. Long with a list of materials (copy enclosed'; together with a sketch plan for the residence to be constructed, which was discussed at some lerrth,,v*n Mr. Long, The plan shows thatthe in-law quarters were to hlava their own dining room, and entryways would - ? separated but still conveniently c nne ed by Means of a covere:- i ? ?lW across the front of tl- ? ^(3. Since the residence Monroe: Township Board of Supervisors Page 2 May 25. 2004 would be flanked by 2 garages, and only 1 driveway existed.at that time for the ;railer, a second driveway permit would be required. When Harold presented his plans to Mr. Long, they were contained on 2 8'/2X11- inch sheets of paper. It was Mr. Long who then assisted Harold in cutting and pasting the 2 sheets as necessary so that the plan could be copied onto a single 11x17-inch sheet of paper (copy enclosed). As Harold explained h .'s intentions, Mr. Long _-id,rised hire that there were otr e,- single fal ily houses in the Townsh; , with in-law q'uarter,, ;so teat Harold's building ;mould not b, uncommon. In fact, they even clis--_ssed the single sewer hoop u,;; as typical for such a structure. As Harold and Mr. Long discussed Harold's design, Mr. Lang filled out the applications for Zoning Permits Nos. 20012-36 and 2002-37, one for the removal of the mobile home and the second for the construction of the residence (copies enclosed). In order to accommodate the second driveway, Mr. Long filled out a Township Driveway Construction Permit (copy endosed)_ Finally, Mr. Long c mpl-ted the Certificate of Use Permit, together with Zoning Permits Nos, 20€32-36 and 2002-37 as .;cell as the Monroe Township Pee Schedule on which by his hand Titing he totaled the amoL4Int due from Mr. Deardorff, which sum was paid by Harold (copies of all enclosed). As noted on the hermit Applications. Harold eras performing the construction essentially himself. Consequently, it took longer to construct the residence than anticipated. When he spoke with Mr. Long in October of last year, he explained that weather permitting he expected to have the pause complete by the spring, and they discussed the need for a further extension. At that time, Mr. Long advised Harold that they could deal with this paperwork when the house was complete and wrap it up at that time. Haroid Deardorff is not an enginee-r or an attorney. He came to the Township, spoke to the correct peopie, explained what he would 1,.,V to do, paid his fees, and was guided thrCJEIC'r3 the c oGPir tiC3n and e{ I ,'. process by the appropriate, authorized Townsn ro officer. Harold should not be penalized because of creating in-law quarters with more amenities than are usually provided. If you have ever had your own adult children or alder in-laws living with you for any length of fume, you can certainly appreciate the value of providing as many separate facilities as possible in order to reduce the potential for family friction. M,. Deardorff has done nothing wrong. The my technicality at issue is the necessity for permit extension, which Harold understood would be signed and paid for at the time of his final inspection. He certainly expects to live up to that obiigation. The big picture, hcvever, is that Harold prop-'y and legally applied for and obtained a permit for tl ie very residence w,ich is nea_r'y= complete. Please reconsider your position, In light of the `oragoing and acdvis=. Harold and 1 wc=_lo be hap, ,- meet with you if necessary, to resolve this matter on an amscat? oasis. Monroe Township Board of Supervisors Page 3 May 25, 2004 My time in my office has been rather curtailed over the past few months by my wife's medical condition, and I will be out of the office the remainder of this week because of college obligations with my son. ! note that Mr. Rogalskfs letter requires an appeal to the Township's Zoning Hearing Board within 30 days of receipt of his letter, which would mean such an appeal would have to be filed by this coming Wednesday, June 2. Can you please advise simply by fax or telephone call to my office that an extension of that time will be granted, or that a follow-up letter will be sent triggering a new 30-day period, so that you have an opportunity to considertuhis matter priorto Mr. Deardorff having to incurfurther costs forpreparing and filing such an appeal. Thank you. WSS:doe Enclosures cc gor R. Rogalski, P.E. D. Sogar, Esq. Harold E. Deardorff, Jr. `,r i ' llfahl WdGG-y bi ddtl JAU UJAIJJH Project: 1294 Brandt Road Date: No: MNTP 00406.03/143 Time: DAILY FIELD REPORT 12/02/2005 On: 10:00 AM Off: 10:20 AM Weather: Cold & Windy - 35 degrees Other Conditions: Remarks: On-site at Solicitor's request to perform walk-thru to determine status of construction. For the purposes of this report, unit designations are as follows: UNIT A - Left or West Side as looking,from Brandt Road UNIT B - Right or East Side as looking from Brandt Road Signed: --------------OVER---- EXHIBIT 'Q MUGS 0712002 ?f 1 of 2 6007900 XVdl SZ:L1 a2M 900Z/61/4f Men and Equipment: None (CONTINUED NEXT PAGE) ndGG 0l ddG In11 UJAIJJ1d. Project No: MNTP 00408.03/143 Date:. 12/02/2005 . Sheet: 2 of 3 Remarks (Con't) UNIT B --Unit generally complete including carpeting, tile, cabinets and countertops. Installation of electrical fixtures, connection of plumbing fixtures and finish work remain The following plan minor plan deviations were noted: 1. Kitchen Area - Smaller cabinet area than illustrated on plan 2. Porch area on plan has been enclosed and appears to be. a bedroom 3. Bedroom #1 and #2 have been switched. 4. Minor changes to closet configurations were noted. Unit B does not have stairs to the basement below and does not have a connection to Unit A. UNIT A - Unit structurally complete with rough plumbing and electrical and drywall installation. Finish work remains to be completed including painting, trim, cabinets, countertops, fixtures and flooring. The following plan minor plan deviations were noted: 1. There are no stairs to the basement or other areas. No structural provisions for the future installation of stairs have been made. 2. Minor changes to closet configurations were noted. Unit A does not have stairs to the basement below and does not have a connection to Unit B. UNIT A BASEMENT - Access provided from separate entrance at rear of structure. Basement is structural only with stone floor and CMU walls with no finishes and no mechancials. Rough electric has. been installed to panel. (CONTINUED NEXT PAGE) Signed: ---- NEXT------- - MU06 0712002 2of2 800/L001Z XVA 9Z :LT aaM 900Z/6T/b( WdGL 5 6L 'M Ali HAMH 0 > . k Project No: MNTP 00406.03/143 Date: 1210212005 Sheet: 3 . of 3 Remarks (Con't) UNIT B BASEMENT - Access provided from separate entrance at rear of structure. Basement Is structural only with stone floor and CMU walls with no finishes. Concrete mechanical pad installed In one area of basement with hot water heater and furnace. UNIT A BASEMENT AND UNIT B BASEMENT DID NOT MEET THE DEFINITION OF DWELLING UNITS AS DEFINED BY THE MONROE TOWNSHIP ZONING ORDINANCE. Exterior -Exterior of home is substantially complete including siding and retaining walls. 1 Electric Service had Middle Department Inspection Agency sticker on meter base, however ink has disappeared due to weather. 2 Fine grading of lot is generally complete Landscaping is not complete HOUSE APPEARS TO BE A TWO-UNIT DUPLEX AT THIS TIME Bessie Deardorff asked the following questions: 1 Would a partial Cetificate of Use be Issued for one unit If the other was not complete? RESPONSE - Yes, as long as the terns of the pending agreement have been met and the unit passes the Certificate of Use Inspection 2 Would the future installation of a screen wall on the east side of the property require permits? RESPONSE - Yes, a zoning permit will be required and ,a building pernit may be required based on the desired height of the wall MUGS 0712002 2of2 . XKd 9Z ?Li QOM onn7 ic*?+? 800/800( VERIFICATION I verify that the statements in the foregoing pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities. Pamela S. Myers VERIFICATION I verify that the statements in the foregoing pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 PaCS 4904 relating to unsworn falsification to authorities. 1 4 Nevin . Myers G-? = s t it CIO t j y. ,-- -,D ? NEVIN L. MYERS and PAMELA S. MYERS, Plaintiff VS. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2006-2466 PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: 1. Matters to be argued: Plaintiffs' Motion for Summary Judgment. 2. Identify counsel who will argue case: a) For Plaintiff: Hubert X. Gilroy, Esquire 4 North Hanover Street Carlisle, PA 17013 b) For Defendant Deardorff: Dennis J. Shatto, Esquire P.O. Box 11847 Harrisburg, PA 17108-1847 c) For Defendant Township: Jennifer B. Hipp, Esquire 1 West Main Street Shiremanstown, PA 17011-6327 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: January 24, 2006. Dated: December 18, 2006 Hobert X. Gilro , Esquire Broujos & G' oy, P.C. 4 N. Hanov r Street Carlisle, A 17013 (717) 243-4574 ID #29943 Attorney for Plaintiff ?{ S F l-VA NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs VS. TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., Defendants TO THE PROTHONOTARY: On behalf of the Plaintiffs, please discontinue the action filed by Plaintiffs in the above matter against the Township of Monroe. This Praecipe is not a discontinuance of claim filed by the Plaintiffs against : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-2466 CIVIL TERM CIVIL ACTION - EQUITY PRAECIPE Defendant Harold E. Deardorff, Jr. I(20J7 Date Hubert X. Gi Attorney for Broujos & Gj 4 North Han( Carlisle, PA' 717-2434574 Esquire loy, PC er Street 7013 r-?- Q °r7 rr'; Q 7 J V `y? NEVIN L. MYERS and PAMELA IN THE COURT OF COMMON PLEAS OF S. MYERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants SUPPLEMENTAL AFFIDAVIT OF HAROLD E. DEARDORFF, JR. I, HAROLD E. DEARDORFF, JR., hereby affirm under penalty of perjury, that the following statements are true and correct to the best of my personal knowledge, information and belief: 1. I am one of the Defendants in the above matter. 2. Immediately before applying for the zoning permit to construct the dwelling on May 2, 2002, I met with Richard Long, Zoning Officer for Monroe Township, at the township office. At that time, I showed Mr. Long the drawing which ended up being submitted with the application and told him that the drawing showed what I wanted to build. 3. At that time, I was not familiar with zoning terminology or with the specific uses which were permitted on my property. 4. Mr. Long actually filled in the application for zoning permit. All of the handwriting on the application is Mr. Longs, except for my signature. 5. The duplex has been completed, both driveways have been paved, and both units are occupied by tenants. 6. There is no interior access between the units of the duplex, and each unit is a completely separate dwelling unit, consisting of a kitchen, bathrooms, livingroom, bedrooms and other amenities. 7. The units cannot be combined or converted to use as a single-family detached dwelling, except at substantial cost or enormous economic waste. Being duly sworn according to law, I depose and state that the facts set forth in this Affidavit are true and correct to the best of my knowledge, information and belief. Z? ? e HAROLD E. DEAR 0 F, JR. Sworn to and subscribed before me this IL'*' day of ?r':• v c... 2007. I Nota,ty Public NOTARIAL SEAL JENNY A TOBIAG, Notary Public City of Harrisburg, Dauphin County My Commission Expires February 15, 2009 NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person (s) indicated below, by depositing same in the United States mail, postage prepaid at Harrisburg, Dauphin County, Pennsylvania, this 12 day of 2007. Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 N. Hanover Street Carlisle, PA 17013 Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 CLECKNER AND FEAREN By. za??a Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P. 0. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 t'=:, C?) ? a --c- ?, ? ? ? v. ...-? 1 _ } i? (? i '-- 5 v .A i,.,i t -?.1 ?.G? NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants SECOND SUPPLEMENTAL AFFIDAVIT OF HAROLD E. DEARDORFF, JR. I, HAROLD E. DEARDORFF, JR., hereby affirm under penalty of perjury, that the following statements are true and correct to the best of my personal knowledge, information and belief: 1. Deardorff fIs duplex, when viewed from Brandt Road, appears to be a ranch-style structure. 2. The duplex has a lower level, exposed when viewed from the rear, because the topography slopes downward from Brandt Road toward the rear boundary. 3. The zoning officer knew that Deardorff intended to construct the lower level. The zoning officer also conducted inspections during construction, and saw that there was a lower level. 4. A copy of Deardorff fIs deed for the property, recorded May 4, 2001, in Book 244, Page 368, is attached hereto and marked Exhibit "A". 5. A copy of the plan for Allen Heights, dated April 24, 1946, and showing the private alley at the west side and rear of Deardorff's property is attached hereto and labeled Exhibit "B". 6. At the time Deardorff applied for his zoning permit for the duplex in May of 2002, there was an existing driveway which provided access for the mobile home. 7. Deardorff was told by the zoning officer that because there were two (2) units in the duplex, he would need a driveway permit for the second unit. Deardorff obtained such a permit on May 2, 2002. 8. Deardorff also obtains access to the rear of the duplex by way of the private alley along the western and rear boundaries. 9. The zoning officer told Deardorff that he could use the private alley for access and did not need a driveway permit because the Township does not regulate access from private rights-of-way. 10. Exhibit "C" hereto is a copy of photographs showing the duplex, private right-of-way and access drive along the western property line. The photographs are true and accurate depictions of said conditions. 11. A true and correct copy of Judge OlerIs Order of Court of October 19, 2005, in No. 05-5109, is attached hereto and marked Exhibit IIDII. Being duly sworn according to law, I depose and state that the facts set forth in this Affidavit are true and correct to the best of my knowledge, information and belief. HAROLD E. DEARWRFF, JR. Sworn to and subscribed beforme this 2 day of ?l„? ?; 2007. Notar Public COMMONWEAL,YH OF NNISYLVANIA NOTARIAL SEAL JENNY A. TOBIAS, Notary Public City of Harrisburg, Dauphin County My Commission Expires, '7ebruary 15, 2009 7ILE ?LER RE-C0OF DEEDS CUMBERLAND COUNTY-PA 01 May 9 fln 9 Lf0 Tax Parcel No.: 22 28 2403 003 D E E D THIS INDENTURE, Made thej+T14 day of May, 2001,_ BETWEEN QUAY E. BROCIOUS, JR. and GAIL M. BROCIOUS, husband and wife, herein designated as the Grantors, AND HAROLD E. DEARDORFF, JR., herein designated as the Grantee: WITNESSETH, that the said Grantors for and in consideration of the sum of Thirty Seven Thousand and No/100 ( $37,000.00) dollars lawful money of the United States of America, to the Grantors in hand well and truly paid by the said Grantee, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the Grantors being therewith fully satisfied, do by these presents grant, bargain, sell and convey unto the Grantee forever, his heirs and assigns, ALL those three lots of ground situate in Monroe Township, Cumberland Coun•':-y, Pennsylvania, bounded and described as follows, to wit: BEGINNING at a f,oint in the public road and at the eastern line of a 16 feet wide iM ey as shown on the hereinafter mentioned Plan of Lots; thence a- long the line of said alley North 12 degrees East 101 feet to a point.; thence further along the line of said alley North 18 degrees 09 minutes West 78.3 feet to a point at the southern line of a 16 feet wide alley as shown on said Plan of Lots; thence along the southern line of said last mentioned alley South 78 degrees East 189.5 feet to the line of Lot No. 12 on said Plan thence along the line of said Lot No. 12 South 12 degrees West 167 feet to a point in the aforesaid Public Road; thence along said road North 78 degrees West 150 feet to a point in said road at the place of BEGINNING. BEING Lots Nos. 9, 10 and 11 on a Plan of Lots called Allen Heights recorded in Cumberland County Recorder's Office in Plan Book 3, Page 102. HAVING THEREON I.-ITUATE a 1967 Skyline trailer 12' by 501, Title No. B00583876, Veh,'.(,le I.D. #50197612P. EXHIBIT BaoK 244 PACE 0,68 -A-- ALL-STATEe INTERNATIONAL BEING the same premises which Verlene Shaner, single person, by deed dated March 28, 1990 and recorded April 4, 1990 in Cumberland County Recorder,ls Office in Deed Book 34M, Page 530, granted and conveyed unto t`;,e grantors herein. TOGETHER with Il and singular, the said property, improvements, ways, waters, water courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and of every part and parcel thereof AND ALSO all the estates, right, title, interest, use, possession, property, claim and demand whatsoever, of the Grantor(s), both in law as in equity, of, in, and to the premises herein described and every part and parcel thereof with the appurtenances. TO HAVE AND TO HOLD all and singular the premises herein described together with the hereditaments and appurtenances unto the Grantees and to Grantees' proper use and benefit forever AND the Grantor. covenant that, except as may be herein set forth, they do and will forever specially warrant and defend the lands and premises, hereditaments and appurtenances hereby conveyed against the Grantors and all other persons lawfully claiming the same or to claim the same. UNDER AND SUBJECT to Acts of Assembly, county and township ordinances, rights of public utility and public service companies, existing restrictions and easements, visible or of record, to the extent that any persons or entities have acquired legal rights thereto. In all references herein to any parties, persons, entities or corporations, tale use of any particular gender or the plural or singular number is intended to include the appropriate gender or number as the text of the within instrument may require. Wherever in this instrument any party shall be designated or referred to by name or general reference, such designation is intended to and shall have the same effect as if the words "heirs, executors, administrators, personal or legal representatives, ...? l`; 1?,•t L'"2 7"1 4`•jl is L'1 ,!fl'. Irl a I i I +W I: I 1 + 1 I...1i Il:c•: 09 P6 rVi TJ iii pia ?1 •t• I 1~a •• • '• • . r. a t`a 1 II + .7r: ?,y,, Frr "I"i n i]I I i 1"i 1•t !! I•-i I.{" M K_? ! 1"1'7 z9 ?' il?i u•f k, , . 1 Fri ?I I 1 ,ni 4F ' "C" :?Y:: ,7 , d G+i I....1 C.N 1 i: :74.. ....^I :l>• ::K;' OR ; r, cr. I:r•. ISr .:a:9 ec •• le + T-I IL r_ra ..• 17 tta • • r'1•I ? :uIC.i .•-j F--0 - rO F • a P-+ 1 1 ;?7 " ! •. r : :7 IC "'"1 ? SS .F ? r.„;t ::ra I'Tt 1 TI I . I:.L -+'1 ... 1• '1.„„ H " :CI.' ?:1 F: u. I ^..."I I?. ? :`7hi ,i..J 117 r ro M- I. 1,1 r•i- I"t h i? fit rya i:. I_.. + ?•? 1_.a It1 ryFt• - r.AI •I!M1• A . 5..? I'D . [:I;t r•- 1-•. CI 1 •..J It: C >f,r1l 1 V T fir( ..• C, i' rl r•^,..:^, [ ?...:? ' Q., . C.b 97U C..ti F?44 PACE 369 successors and assigns" had been inserted after each and every such designation. IN WITNESS WHEREOF, the said Grantors have hereunto set their hands and seals the day and year first above written. Signed, Sealed and Delivered, in the presence of: WIT (SEAL) ua E. Brocious, r. Gail M. Brocious Commonwealth of Pennsylvania: County of ••`p(49- k _- ON THIS, the '4rk day me, the undersigned officer, Jr. and Gail M. Brocious, satisfactorily proven) to I subscribed to the within he/she/they executed the say t1;? 'ems`' y?... { )f -TyZ o? 200 1 , before personally ppeared Quay E. Brocious, husband and wife, known to me (or s the person(s) whose name(s) is/are instrument and acknowledged that e for the purposes therein contained. NOTARY PUBLIC My Commission Expires: Notarial Seal Bonnie E. Brubaker, Notary Public Fairview Twp., York County My Commisslon Expires Jan. 6, 2005 Momb®r, Pennsylvania Association of Notaries hereby certify the address of the La 0 above-named Grantee(s) to be: PAGE 370 - .----- pN fn r?? t I 1N ?a. ?y ? / ' i ' +M1 Xef /r, a?G G?`? /' yea 43`,A D e~ M k5 i ° ? OJ f. y 4 N °- ? 5 4 y' y? r ''•?-y? L r r V n r I 4a yC ,? ?,*„ `%3 5 WI ?L O O ? y F t 4 ? 4 0, J s? a t o Se' o' f S Si So' JO' ro 7 'o D ' I z rz as .? i1 ac s7 as >>?fi y a- Q fa ' e ° - - AL LEN H E IGNT.? - P/ar? 3haw/n9 Laf m Aroperfy of o n HARRY Z}CLI EIV L/CNTe- NeER6Ca CHURCH TOWN -MONROE TWA - CUMe. Caz PA. tir A s • * •. ? Sca/e /'=/00' APRJL 0 p ?p EXHIBIT ALL-STATE?INTERNATiONAL mk,, j / rYpM1 ? p/ Rf, ` 14' C a{- rC4 e- of nn (' .y EXHIBIT TOWNSHIP OF MONROE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW HAROLD E. DEARDORFF, JR., Defendant 05-5109 CIVIL TERM ORDER OF COURT AND NOW, this 19th day of October, 2005, upon consideration of Plaintiff's Petition for Preliminary Injunction, following a hearing held on this date, and the Court finding (1) that a preliminary injunction is necessary to prevent immediate and irreparable harm which cannot be compensated for by damages, (2) that greater injury would result from the denial of the preliminary injunction than from the granting of it, (3) that a preliminary injunction will operate to restore the parties as nearly as possible to the status quo as it existed prior to the alleged wrongful conduct in the form of Defendant's proceeding with construction at 1294 Brandt Road, Mechanicsburg (Monroe Township), Cumberland County, Pennsylvania (a) after a zoning permit had expired, (b) in the absence of an application for extension of the expired permit or for a new zoning/building permit, and (c) notwithstanding a stop-work order issued by Plaintiff, and (4) that Plaintiff's right to a preliminary injunction is clear and general equity jurisdiction is warranted, Plaintiff's petition is granted and Defendant is preliminarily enjoined from proceeding with construction on or occupancy of the said premises pending further order of Court. EXHIBIT ALL-STATE® INTERNATIONAL By the Court, Jennifer B. Hipp, Esquire James D. Bogar, Esquire Solicitors for the Township of Monroe One West Main Street Shiremanstown, PA 17011 For the Plaintiff Dennis J. Shatto, Esquire F P.O. Box 11847 Harrisburg, PA 17108-1847 For the Defendant pcb ca y NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION -EQUITY HAROLD E. DEARDORFF, JR., Defendants PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter the appearance of the firm of Martson, Deardorff, Williams, Gilroy, and Otto on behalf of the Plaintiffs. Dated: January 30, 2007 Hubert. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 (717) 243-3341 ID #29943 Please withdraw the appearance of the firm of Broujos & Gilroy, P.C. on behalf of the above Plaintiffs. Dated: January 30, 2007 Hubert X. Gilr , Esquire Broujos & G' oy, P.C. 4 North H over Street Carlisle, PA 17013 (717) 243-4574 ID #29943 ? a co 6 NEVIN L. MYERS and PAMELA S. MYERS, PLAINTIFFS V. HAROLD E. DEARDORFF, JR DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: CROSS-MOTIONS OF PLAINTIFFS AND DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of February, 2007, IT IS ORDERED: (1) The motion of plaintiffs, Nevin L. Myers and Pamela S. Myers, for summary judgment against defendant, Harold E. Deardorff, Jr., IS DENIED. (2) The motion of defendant, Harold E. Deardorff, Jr., for summary judgment against plaintiffs, Nevin L. Myers and Pamela S. Myers, IS DENIED. By the Coft; aw", U'? Edgar B. Bayley, J. Xuibert X. Gilroy, Esquire For Plaintiffs ,Annis J. Shatto, Esquire y 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 For Defendant sal C\j ?- ? = C ?y - - i ) C\j roi Ll- LL. ~_ PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: for JURY trial at the next term of civil court. for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) ® Civil Action - Law ? Appeal from arbitration (other) NEVIN L. MYERS and PAMELA S. MYERS, (Plaintiff) VS. The trial list will be called on May 22, 2007 and Trials commence on June 18, 2007 TOWNSHIP OF MONROE and HAROLD E. DEARDORFF, JR., (Defendant) Pretrials will be held on May 30, 2007 VS. (Briefs are due 5 days before pretrials No. 20062466- Civil Term-Equity Indicate the attorney who will try case for the party who files this praecipe: Hubert X. Gilroy, Esquire Indicate trial counsel for other parties if known: Dennis J. Shatto, Esquire This case is ready for trial. Date: April 30, 2007 Signed: Print Name: Hubyh X. Gilroy, Esquire Attorney for: Plaintiffs F:\FILES\DATAFILE\GeneraliCwTent112322\12322. t.pral U W Q Y C ra W O L13 O Cam' n 4 5 NEVIN L. MYERS and PAMELA S. MYERS, PLAINTIFFS V. HAROLD E. DEARDORFF, JR DEFENDANT AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 06-2466 CIVIL TERM ORDER OF COURT CK'N day of May, 2007, a hearing on the within matter shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 8:45 a.m., Tuesday, June 12, 2007. vil/ubert X. Gilroy, Esquire For Plaintiffs nnis J. Shatto, Esquire 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 For Defendant :sal CIO NEVIN L. MYERS and PAMELA S. MYERS, PLAINTIFFS V. HAROLD E. DEARDORFF, JR. DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-2466 CIVIL TERM ORDER OF COURT AND NOW, this day of May, 2007, the bench trial scheduled for June 12, 2007, IS CONTINUED. The case will be rescheduled upon notification by either counsel to this chambers that it is at issue. ?Aubert X. Gilroy, Esquire For Plaintiffs /ennis J. Shatto, Esquire 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 For Defendant Court Administrator J Edgar B. Bayley :sal By th ourt, ---? ?? l`- ??. 41ry }'..Y ?,.? ?', c_?; '?./ T F: \FILES\GeneraPcurrent\ 12322\ 12322. I . pra2/nlm Created: 9/20104 0:06PM Revised: 7/2/07 1 1:19AM 12322.1 Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for NEVIN L. MYERS and PAMELA IN THE COURT OF COMMON PLEAS OF S. MYERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. NO. 2006-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION -EQUITY HAROLD E. DEARDORFF, JR., Defendants PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please index the above-captioned action as a Lis Pendens, as this action relates to real estate located at 1294 Brandt Road, Mechanicsburg, Monroe Township, Cumberland County, Pennsylvania, which his owned by Defendant Harold E. Deardorff, Jr. MARTSON LAW OFFICES By Hubert X. Gi ,Esquire I.D. Numb 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Date: July 2, 2007 CERTIFICATE OF SERVICE I, Nichole L. Myers, an authorized agent of Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Dennis J. Shatto, Esquire CLECKNER AND FEAREN 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 MARTSON DEARDORFF WILLIAMS & OTTO t By Nichole L. Myers Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 2, 2007 G c> ? c, ` r-;,. L 27 r ' m t? NEVIN L. MYERS and PAMELA IN THE COURT OF COMMON PLEAS OF S. MYERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 06-2466 CIVIL TERM TOWNSHIP OF MONROE and CIVIL ACTION - EQUITY HAROLD E. DEARDORFF, JR., Defendants PETITION TO STRIKE LIS PENDEIINS AND NOW, comes the Petitioner, Harold E. Deardorff, Jr., one of the defendants in the above matter, and in support of the within petition, avers as follows: 1. Petitioner is Harold E. Deardorff, Jr., Defendant in the above matter, and owner of real estate and improvements located in Monroe Township, Cumberland County, Pennsylvania, and known as 1294 Brandt Road, Mechanicsburg, Pennsylvania (the Petitioner's property). 2. Respondents are Nevin L. Myers and Pamela S. Myers, Plaintiffs in the captioned suit. 3. On May 3, 2006, Plaintiffs filed a complaint against Petitioner and the Township of Monroe. 4. Count I of the Complaint asks that the Court order the Township of Monroe to prohibit Petitioner from maintaining a duplex residential dwelling on his property and from maintaining three (3) driveways. Count II of the Complaint is a request for injunctive relief against Petitioner to prevent him from maintaining a duplex- style residential dwelling and from maintaining three (3) driveways on his property. 5. On or about May 31, 2006, the Township of Monroe filed an Answer and New Matter, on or about August 7, 2006, Petitioner filed an Answer with New Matter. Respondents filed separate replies to the new matter. 6. All parties filed motions for summary judgment. 7. On or about January 12, 2007, Respondents withdrew the mandamus action against the Township of Monroe. 8. By Order dated February 22, 2007, The Honorable Edgar B. Bayley denied the motions for summary judgment filed by Petitioner and Respondent. 9. By praecipe dated July 2, 2007, Respondents indexed the captioned matter as a lis pendens against Petitioner's property. 10. By operation of law, a lis pendens constitutes a cloud upon the title to the real estate. 11. The complaint in the within action pertains only to the propriety of Petitioner's use of the property, and has nothing whatsoever to do with the title to the property. 12. Respondents are not claiming that they, or anyone else, has a claim to the title to Petitioner's property. 13. Any success by Respondents in this action will have no effect upon the title to Petitioner's property. 2 14. The indexing of the lis pendens improperly impairs the marketability of Petitioner's title and may result in Petitioner's inability to convey his property, all to his financial detriment. WHEREFORE, Petitioner respectfully requests that Your Honorable Court strike the indexing of this action as a lis pendens against his property. 3D b Date: Respectfully submitted, CLECKNER AND FEAREN By: Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P. O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 3 CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person (s) indicated below, by depositing same in the United States mail, postage prepaid at Harrisburg, Dauphin County, Pennsylvania, this 3o A day of July, 2007. Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER 10 East High Street Carlisle, PA 17013 CLECKNER AND FEAREN By D is J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 4 ` ? - -,.?? ?-? c`? _?y t?cti ?X ? f ^"[? i r iT 1!' ? ,.? ?'-Y t . l Jy tt ' J - ? .[1 r _f r. e? "?? ? ?5 ?j ry O 10e9 uo SPVAG LO r" O z } D O n , z ;u a i ? O U Zn Y - Z Q to Z m w v aaaM mU?.6 w cr 1.- 03 wDO QO r:,. g?Q<o O U¢ YQ z : - U Q U. z Q z ° W z a Q3a?z uW.gQ¢? 9ujcoN ad wuo -z *E(nz ?wLL:3 w W ZOQCL J Ykcrn? Vaz?m W w j a ir V Q x pepnpuj --o j Alum d CC O Q 4 a C G Q1 Cc LL o N Ln cD C?- .a a O O a Ul Ln Q' r%j O rm rN O 0i Ln N O ' O ?ti3 S&bwsm NEVIN L. MYERS and PAMELA S. MYERS, PLAINTIFFS V. HAROLD E. DEARDORFF, JR., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-2466 CIVIL TERM -7 ORDER OF COURT AND NOW, this y day of August, 2007, a Rule is entered against Nevin L. Myers and Pamela S. Myers to show cause why the petition to strike a lis pendens should not be granted. Rule returnable at a hearing to be conducted at 8:45 a.m., Friday, August 17, 2007, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. Hubert X. Gilroy, Esquire For Plaintiffs Dennis J. Shatto, Esquire 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 For Defendant :sal ? C07 ' t 07- n CID .}. c?°-? v AUG i 6 zoo7W F: \FILES\ l 2322\1 2322.1.0rder l Created: 9/20104 0:06PM Revised: 8114107 9:35AM 12322.1 Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs NEVIN L. MYERS and PAMELA S. MYERS, Plaintiffs vs. HAROLD E. DEARDORFF, JR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-2466 CIVIL TERM CIVIL ACTION -EQUITY ORDER AND NOW THIS _-r day of August, 2007, upon agreement of legal counsel for the parties, it is Ordered and directed as follows: 1. The hearing scheduled on August 17, 2007 at 8:45 a.m. is cancelled. cc 2. Plaintiff's counsel shall file with the Court in chambers on or before August 24 a Brief addressing the Defendants Motion to Strike the lis pendens which was filed by the Plaintiff. 3. Defendant's counsel shall file with the Court in chambers a Response Brief in Support of the Defendant's Motion on or before August 31, 2007. 4. Unless requested in writing by either party on or before September 5 07, Oral Argument will be deemed waived and the Defendant-' rNfo-t-iAw ke the lis pendens will be decided on Briefs in the existinrecord. /,ubert X. Gilroy, Esquire Xennis J. Shatto, Esquire y By e?%_ Judge Edgar B. Bayley >- cl; co -T tt}` U LL1 LL- 0 NEVIN L. MYERS and PAMELA S. MYERS, PLAINTIFFS V. HAROLD E. DEARDORFF, JR., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 06-2466 CIVIL TERM IN RE: PETITION OF DEFENDANT TO STRIKE LIS PENDENS ORDER OF COURT AND NOW, this day of September, 2007, the indexing of this action as a lis pendens, IS STRICKEN. VWubert X. Gilroy, Esquire For Plaintiffs Annis J. Shatto, Esquire 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 For Defendant :sal - .c .0" By the Edgar B. Bayley, J. C%j O r1 Q LLJ r ry_ d CL N VV NEVIN L. MYERS and PAMELA S. MYERS, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HAROLD E. DEARDORFF, JR., DEFENDANT 06-2466 CIVIL TERM IN RE: PETITION OF DEFENDANT TO STRIKE LIS PENDENS OPINION AND ORDER OF COURT Bayley, J., September 18, 2007:-- Plaintiffs, Nevin L. Myers and Pamela S. Myers, live in a home they own at 1290 Brandt Road, Monroe Township, Cumberland County. It is next to 1294 Brandt Road that is owned by defendant, Harold E. Deardorff, Jr. Deardorff constructed two separate single family dwelling units in a duplex configuration on his property. Plaintiffs filed a complaint against defendant in which they allege that the duplex is in violation of the Monroe Township Zoning Ordinance. They seek an injunction to prevent defendant from maintaining the duplex and three driveways at 1294 Brandt Road. Plaintiffs indexed this action as a lis pendens. Defendant filed a petition to strike the lis pendens. Defendant maintains that the lis pendens should be stricken because this suit does not involve any issue as to his title to 1294 Brandt Road. He argues in his brief that "Plaintiffs have unilaterally rendered Defendant's title unmarketable notwithstanding that there is no contractual or other relationship between the parties and Plaintiffs are making no claim to any interest in Defendant's property." 06-2466 CIVIL TERM In Psaki v. Ferrari, 377 Pa. Super. 1 (1988), the Superior Court of Pennsylvania stated: Strictly speaking, the effect to a lis pendens is not to establish an actual lien upon the property affected. Its purpose is merely to give notice to third persons that the real estate is subject to litigation and that any interest which they may acquire in the real estate will be subject to the result of the action. Dice v. Bender, 383 Pa. 94, 97, 117 A.2d 725, 726-727 (1955). Lis pendens has no application except in cases involving the adjudication of rights in specific property. Shannon v. Barrett, 65 Pa.D & C.2d 446, 448-449 (Del.Co.1974). Thus, a party is not entitled to have his case indexed as lis pendens unless title to real estate is involved in litigation. (Emphasis added.) The issue in Psaki was whether a judgment for money damages supported a lis pendens filed against real estate which was owned by a stranger to the judgment and which was not the subject of any pending litigation. The Superior Court concluded that a lis pendens could not be predicated upon an action seeking to recover a personal demand; that when a personal demand is reduced to judgment it becomes a lien, without more, on real estate which is owned by the judgment creditor; and that the filing of the lis pendens was unnecessary. In Dice v. Bender, 383 Pa. 94 (1955), the Supreme Court of Pennsylvania stated: Strictly speaking, the effect of a lis pendens is not to establish actual liens upon the properties affected nor has it any application as between the parties to the action themselves; all that it does is to give notice to third persons that any interest they may acquire in the properties pending the litigation will be subject to the result of the action .... In short, being a creature not of statute but of common law and equity jurisprudence, the doctrine of lis pendens is wholly subject to equitable principles. Thus, if a plaintiff were to delay unreasonably in the prosecution of his claim, or if the operation of the doctrine should prove to be harsh or arbitrary in particular instances, equity can and should -2- 06-2466 CIVIL TERM refuse to give it effect, and, under its power to remove a cloud on title, can and should cancel a notice of lis pendens which might otherwise exist. (Emphasis added.) In Janus Management Services, Inc. v. Schlessinger, 810 A.2d 637 (Pa. Super. 2002), the Superior Court stated: Lis pendens is notice to the world that a cloud over the title to a property exists. Once the lis pendens is stricken by a court, that is equally notice to the world that there is no longer a valid claim on the title, no matter the merits of the underlying action. See generally Dice v. Bender, 383 Pa. 94, 117 A.2d 725 (1955). (Footnote omitted.) (Emphasis added.) Neither counsel nor this court have found any appellate authority that a lis pendens can be indexed merely to give notice to third persons that real estate is subject to litigation unless the title to the real estate is a subject of the litigation. In the case a 41 sub judice, title to 1294 Brandt Road is not at issue. Therefore, the following order is entered.' ORDER OF COURT AND NOW, this I w day of September, 2007, the indexing of this action as a lis pendens, IS STRICKEN. Edgar B. Bayley, J. ' We note that if defendant now markets and/or sells his property it is our opinion that he would be under a duty to disclose this litigation to any prospective buyer. The point in striking the lis pendens is to remove the cloud on the title. -3- 06-2466 CIVIL TERM Hubert X. Gilroy, Esquire For Plaintiffs Dennis J. Shatto, Esquire 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 For Defendant :sal -4-