HomeMy WebLinkAbout02-1814EDWARD 13. STATHAS and
MARILYN A. STATHAS,
Petitioners and Appellants
Vo
ZONING HEARING BOARD OF
UPPER ALLEN TOWNSHIP,
GREGORY E. BLACK AND
CHRISTY A. BLACK,
Respondents and Appellees
: 1N THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: No. 2000-8863
:
: CIVIL ACTION
.'
:
:
:
GREGORY E. BLACK and
CHRISTY A. BLACK,
Appellants
ZONING HEARING BOARD OF
UPPER ALLEN TOWNSHIP,
Appellee
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION
:
:
NOTICE OF LAND USE APPEAl,
NOW COMES Gregory E. and Christy A. Black, through their attorneys, Charles E.
Zaleski and Reager & Adler, P.C., and Dennis J. Shatto of Cleckner and Fearen, pursuant to
Section 1001-A of The Pennsylvania Municipalities Planning Code (53 P.S. 11001-A), (the
"MPC") and appeal the decision of Appellee, dated March 13, 2002 (the "Decision"). In support
of this Appeal they state the following:
1. The Appellants, Gregory E. and Christy A. Black, are the fee simple owners of real
estate and improvements along East Lisbum Road, Upper Allen Township, Cumberland County,
Pennsylvania, having acquired title by deed dated June 5, 1998, and recorded in the Office of the
Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book 178, page 943 (the
"Property").
2. On or about December 21, 1999, Appellants Blacks applied to the Zoning Heating
Board of Upper Allen Township ("Appellee") for a special exception to establish a landscape
contractor's office and storage use on the Property.
3. On or about January 13, 2000, a hearing was held, and on or about February 10, 2000,
the Zoning Hearing Board issued a written decision granting the special exception.
4. On December 29, 2000, more than nine months after the appeal period lapsed, Edward
E. Stathas and Marilyn A. Stathas, owners of adjoining property to the west, filed with this Court
a Petition for Leave to Appeal nuncpro tunc, which Petition was granted by Order dated April 9,
2001. Appellants Blacks intervened and responded in opposition to the Petition.
5. On or about May 9, 2001, Mr. and Mrs. Stathas filed an appeal of the aforesaid
decision of the Zoning Heating Board, docketed at 2000-8863 Civil, together with a motion for
remand. Stathas was designated as Petitioner, Appellant; the Zoning Board and Black as
Respondents, Appellees.
6. On or about August 1, 2001, Your Honorable Court entered the following Order:
"AND NOW, this 1st day of August, 2001, the within matter
is remanded to the Upper Allen Township Zoning Heating Board
for the purpose of allowing the appellants [Stathas] the opportunity to present
evidence on and to seek reconsideration of the grant of the special
exception which is the subject of this case."
7. On October 1 I, 2001, October 26, 2001, November 14, 2001, December 13, 2001,
January 10, 2002 and January 23, 2002, the Zoning Heating Board held hearings on the remand.
8. In November of 2001, during the pendency of the proceedings, Edward E. Stathas was
elected to the Board of Commissioners of Upper Allen Township. He was sworn into office in
January, 2002, also during the pendency of the proceedings before the Zoning Hearing Board.
His brother-in-law, David Frazer, was a member of the Board of Commissioners of Upper Allen
Township at all times pertinent hereto, and attended most of the hearings.
9. At the hearings, Mr. and Mrs. Stathas went forward with the presentation of evidence
and testimony in opposition to the request for special exception. Testimony was also provided
by other persons over the objections of Appellants Blacks. Thereafter, Appellants Blacks offered
evidence and testimony in rebuttal.
10. The Decision, dated March 13, 2002, of the Zoning Hearing Board denied the request
for special exception. A copy of the Decision is attached hereto and made a part hereof as
Exhibit "A".
11. Appellants Blacks, hereby appeal the Decision because the decision is arbitrary and
capricious, an abuse of discretion, is against the weight of evidence, not supported by substantial
evidence and is contrary to law in the following respects:
A. The Zoning Hearing Board erred in permitting persons other than Mr. and Mrs.
Stathas to offer testimony and evidence in opposition to the application. The
remand was expressly limited in scope by the Court, whose Order was violated by
the Board in allowing the testimony of persons other than Mr. and Mrs. Stathas.
The voluminous testimony of these witnesses created a misleading appearance of
substantial opposition to the application, and was unfairly prejudicial to the
Appellants Blacks.
B. While the Board recited portions of the testimony presented at the hearings in the
Decision, the Board made very few, if any, findings of fact, and in some
3
instances, the testimony was not accurately recited.
The Zoning Hearing Board failed to recognize that Appellants Blacks had met
their burden of proof for granting of the Special Exception, and failed to make the
findings of fact necessary to support the denial.
The Zoning Hearing Board erred and abused its discretion in failing to grant the
special exception. The Board did not find or conclude that the Appellants Blacks
failed to satisfy any or all of the specific objective standards and criteria for the
special exception. Moreover, the Board erred in not finding and concluding that
the Appellants Blacks satisfied all of the criteria and standards for a special
exception.
The only explanation in the Decision for the denial is the following sentence,
which appears at the end of the "discussion" portion of the Decision:
"The Board finds there are some problems with the grant of
a special exception in that there is some concern that the use
may adversely affect the property values and character of the
surrounding neighborhood."
The Board did not find or conclude that the use will in fact adversely affect
property values and the character of the surrounding neighborhood, nor is there
substantial evidence in the record to support any such finding.
The Zoning Hearing Board abused its discretion and committed error of law by
not determining that the objectors Stathas failed to carry their burden of proving
that the grant of the special exception would be contrary to the health, safety,
morals and general welfare of the Township.
The Zoning Hearing Board erred or abused its discretion in finding that the
special exception previously granted to the Appellants expired six (6) months
after the special exception was granted.
H. The Zoning Heating Board erred or abused its discretion in finding that "the land
development plan should have been resubmitted to the Zoning Hearing Board
when changes were made..."
I. The Zoning Hearing Board erred or abused its discretion in failing to determine
that Appellants Blacks had the right to their proposed use of the subject property
because no appeal had been taken from the approval by the Board of
Commissioners of the Appellants' Black land development plan.
J. The Zoning Heating Board erred or abused its discretion in failing to determine
that Appellants Blacks had a right to their use by vested rights or estoppel.
K. The Zoning Heating Board erred or abused its discretion in admitting certain
hearsay evidence and in considering the testimony of Reynold Woof, an appraiser.
12. The Zoning Heating Board erred procedurally in attempting to make a decision by
failing to have a motion or a second or a roll call vote on any such motion to deny the special
exception at any public meeting. Execution of the Decision prepared by the Solicitor cannot
substitute for the requirement for a motion, second of a motion and vote required by law. Failure
to vote on a motion to deny results in a deemed approval under Section 908 (9) of the MPC, 53
P.S. 10908 (9).
WHEREFORE, Appellants Blacks respectfully request the Court to reverse the Decision
of the Zoning Hearing Board and order that the Special Exception be granted as submitted.
Dated: April 12, 2002
Respectfully submitted,
REAGER & ADLER, PC
CLECKNER AND FEAREN
IUl~l~s E. Zaleski, Esquire
PA Attomey ID # 18043
2331 Market Street
Camp Hill, PA 17011
(717) 763-1383
Dennis J. Shatto, Esquire
PA Attorney ID # 25675
119 Locust Street
Harrisburg, PA 17101
(717) 238-1731
Attorneys for Appellants
IN RE: APPLICATION OF
GREGORY E. BLACK and
CHRISTY A. BLACK
A Variance
BEFORE THE ZONING HEARING
BOARD OF UPPER ALLEN TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 00-2
RECONSIDERATION DECISION
On December 21, 1999, Gregory E. Black and 'Christy A. Black applied for a
Special Exception under thc provisions of Chapmr 245, of Ordinancc 465, Zoning, from the
Code of the Township of Upper Allen Township, hereina~er called "Code", Section 127,
"Special Exceptions". The purpose of the application was to establish a landscaping
contractor's office on property located, on East Lisburn Road, Upper Allen Township,
Mechanicsburg, Pennsylvania. The property is located in an Agricultural District.
On January I3, 2000, a public heating was held, and a Special Exception was
granted. At the time of that hearing Edward and Marilyn Stathas were owners of the
property adjoining the subject property, but were not notified of the pending application for
Special Exception. Mr. and Mrs. Stathas subsequently filed a motion with the Court of
Conm~on Pleas to reopen this matter. The Court agreed and this matter was remanded to the
Upper Allen Zoning Hearing Board for reconsideration.
After publication of the required notices, public hearings were held on October i 1,
2001, October 26, 2001, November 14, 2001, December 13, 2001, Jmau~_ry 10, 2002,
January 23, 2002 and January 30, 2002, at which times the Applicant and interested parties
were allowed full opportunity to testify, present evidence and question witnesses.
The relevant provisions of Chapter 245 and other applicable ordinances and Codes
of Upper Alien Townsh/p are incorporated herein by reference.
FINDINGS OF FACTS
1, This is a r~nand from thc Court of Common Pleas pursuant to the order
dated August 1, 2001, from Judge Kevin Hess, in the action of Edward E. Stathas and
Marilyn A. Stathas to allow Mr. and Mrs. Stathas to present evidence on and to seek
reconsideration on the grant of the Special Exception in the subject case.
2. Gregory Black was called as Witness for cross-examination by Attorney
Keith O. Brermeman.
3. Gregory Black resides at 1494 Lateliworth RoM, Camp Hill, PA. He has
been in the landscaping business for 9 years. He has no affiliation with H. Edward Black
and Associates, that is a separate entity owned by his father.
4. Gregory Black testified that he was present at the prior hearing, but he
answered no questions other than some asked of him at that hearing. He testified that his
father is not associated with his business.
5. Gregory Black agreed that he submitted' a plan for the Zoning Hearing
Board to consider, which has been marked as Stathas Exhibit A, dated 10/l 1/01, and that
after receiving the data from the Zoning Hearing Board, he proceeded to submit a land
development plan, which is marked as Stathas Exhibit B, dated 10/11/01.
6. ' Stathas Exhibit A shows the proposed use ofthe property at file time of the
special exception. The Plan shows 7200 square foot building about the middle of the
plan and other proposed building, Parking and screenings.
7. Gregory Black testified that he picked up a building permit in May 2001.
The land development plan has a different configuration of buildings than the initial plan
approved by the Zoning Hearing Board.
8. He further testified that the approved land development plan showed 24
parking spaces by the building.
9. He admitted that the plan shown rise Planning Commission depicted future
btfildings as being in ~ront of the principal building.
10. He testified that the buffer of trees on Stathas Exhibit A has different
plantings than on Stathas Exhibit B.
11. He further testified that on Stathas Exhibit A he had proposed a storage
trailer. On Stathas Exhibit B no such storage trailer was shown.
12. Gregory Black also testified that he did not receive a new approval from
the Zoning Hearing Board on the changes that were made to the plan.
13. He testified that no one advised him regarding section 245.127(a)(1).
14. The building that is being constructed .is an o~ce building, plus it is going ·
to be ttsed for storage of landscape equipment, vehicles, tools and seeds.
t 5. On Stathas Exhibit B there is a proposed pole shed for future use to store
straw, tractors and equipment.
16. Gregory Black further testified that he has not obtained pc,,,~ission ~rom
the Zoning Hearing Board under section 246.126 for a variance. He indicated that the
matter had not come up during the land development approval stage. There was some
question as to whether a variance would be needed because that building would be in
fi'ont of the principal structure.
17. He also testified that the trailer storage is not shown on the land
development plan. There are trailers that in the evening would be going in and out in the
mornings. He said he does not use those trailers as a storage structures.
18. He admitted that at the present location where he operates, he is using a
storage trailer, but hc Would not be using one at the Upper Allen Location. He indicated
that he now has two storage trailers that move in and out. Both house mowers.
19. He also testified that Stathas Exhibit A shows a proposed material storage
area. He testified that in the future he would store material (plant material) in the poly-
house. The proposed material storage area was for living plant materials. He does not
know why the proposed material storage area is not noted on Exhibit B. He said he was
not aware that he was moving the buildings closer to the Stathas residence.
20. Gregory Black was questioned on whether he proposes to store items such
as tan bark and non-live material. He indicated he does intend to store th/ngs other than
plant mater/al and mulch.
2l. He was asked if it was his practice to store brush, leaf' material and waste
and limbs on the property. The answer was yes. He replied that he has material that he
keeps on site. He has not shown where he proposes to store leaves and wastes from off
site jobs on the plan.
22. He testified that he would not store the material in the same manner that
he .stores it in the East Permsboro site. He presently stores 50-100 cubic yards of brush
material and admitted that he did not show pictures of those locations to the Board on the
plan.
23. He also admitted that he stores broken block and brick at the site in East
Pennsboro. He indicates that he uses that on other job sites. He does intend to use the
broken brick and block material at the Upper Allen site, but had no idea why it was not
brought up to the Board at the initial hearing.
24, He testified that vehicle storage and trailers shown on Exhibit A would be
stored on grass or stoned areas. He would have at least two storage trailers, in which
there would be mowers, that he would store in the driveway on the edge near the poly-
houses.
25. He testified that they would be stored on the edge.of the gravel and would
be moved in and out each day. They would not block the cart-way. He indicated that
some portion of the milers would be on the cart-way and that this was not discussed
initially with the Zoning Hearing Board.
26. He also testified fl~at he did not telI the Township commissioners that he
intended to store the trailers on the edge of the em-way. He had no explanation as to
why he did not disclose that.
27. He proposes to store six vehicles. This would be two pick-ups, a h'ydro-
seeder truck with a 50,000 GBW, three single axle dumps of approximately 11,000. The
trucks would be stored on the stoned area. He testified that other equipment that he
proposes to store outside would be one front end loader near the tan bark bin, He also
testified that the hydro-seeder truck and front end loader parking are not shown on either
Exhibit A. or B.
28. He indicated that he did not intend to store any other equipment out'ire.
29. He testified that he was not aware of Section 245.134 of the Zoning
Ordinanee that indicates that a special exception expired in six months, insofar as no ;ne
pointed that out to him.
30, Gregory BIack testified that during snow removal season sometimes they
wilt be working 24 hours.
31. At the summert/me he docs get tan bark at other than normal working
ho),cS,
32. He does not have intentions of getting odd deliveries al/er'5:00 P.M.
33. He .testified that a customer a month would come by. 'His father testified
that customers would come by but he would allow it to happen if the opportunity
presented itself.
34. He indicates that he has thrcc locations. One is 120 East Erford Road,
East Permsboro Township, Hc indicates that he has not been cited by East Pennsboro.
35, A letter from the Codes Enforcement Officer o£ East Pcnnsboro Township
was introduced as Stathas Exhibit D. The lct'~er generally talks about dumping massive
amounts o/'durnping.
36, A composite photograph was introduced by Mr. Stathas. These are
photographs I through t0. They are all different scenes at Mr. BlaCk's East Pcrmsboro
location.
Photograph 1 is apilc ofbrushand debris.
Photograph 2 is a pile of brush and debris.
Photograph 3 shows a number of vehicles stored outside,
Photograph 4 is a job Johnny and materials stored on thc outside, includ/ng
erosion control devices.
Photograph 6 is a trailer that does not Icavc on a daily basis, it has straw in it. He
indicates that hc will not store items underneath thc trailer in Upper Allen Township,
Photograph 7 is grading tractor with piles of natural stone on the right, river stone
on the left, plus limestone dust for patios.
Photograph 8 is of pallets that were delivered that day. He indicates that he was
not proposing' to store materials in the same manner in Upper Allen Township.
Photograph 9 shows a chipper.
Photograph 10 is additional pieces of equipment. Similar types of trucks :would
be used in Upper Allen To~vnshJp. Tbe. Kubota in the picture he hopes will be out on the
job,
37. Stathas Exhibit E is a letter dated 12/21/99 submitted to the
Hearing Board with signatures of Mr. Stathas and his wife. The nature of the letter is that
there are other businesses of ,imilar nature in the neighborhood, but they are condacted
by residents on the neighbOrhood, Mr. and Mrs. Stathas feel that someone who lives in
the neighborhood where the business is h~ a bett~r idea of what is going on. They would
be better at maintaining it.
38. Mr. Black indicates that the maximum number of vehicles that he ha~ at
East Permsboro is 28. Some of the vehicles will be stored outside and a number of them
will be stored inside of the big building.
39. Gregory Black's corporate office is 2401 N. Front Street, Harrisburg, PA.
40. The other property that he leases i, to the mar at the back of Yellow Cab.
It is for a tan bark bin.
al. Mr, Black also testified that he never told anyone that he would like
build a home on the site in question in Upper Allen.
42. Testimony wa~ presented by Rcynold Woof. His business address is 302
S. Front Street, Wormleysburg, PA. He is a principal of Woof Appraisal Group. He ha~
been engaged as a certified general appraiser for 22 years. The majority of his work is
residential. He has been qualified as an expert in Dauphin and Cumberland Counties and
in Federal Court.
43. Mr. Woof was requested to do an appraisal and requested to see if there
would be any damage in value to the Stathas property due to a landscaping business
being next door. The appraisal was introduced as Stathas Exhibit F.
44. Mr. Woof indicates that he inspected the property, did income market
replacement cost analysis. He gave most weight to market sales comparison approach.
He feels this is the most appropriate since the property is not new and the income
approach is not appIicable. He used three comparable properties arriving at his'value and
assumed that all buildings from the land development plan would be put in.
45. Cross Examination by Attorney Dennis Shatto of Reynold Woof. Mr.
Shatto indicated that he had the opportunity to review the appraiser's report and he has
some objections to that report. Those objections would be noted and dealt with if
appropriate in the future.
46. Mr. Woof'testified that he was aware that next to the Stathas residence is
the Gutshall Landscaping business, which is there along with the Gutshalt home.
47. Mr. Woof also testified that he is aware there is a landscaping business
across the street. He testified that the neighborhood is predominantly, single family
residences. When questioned he identified neighborhood as surrounded by Lisburn Road
in Lower Allen through Upper Allen. Homes valued in the range of $60,000 to $85,000
,are included in the village of Lisburn and that the neighborhood goes up into McCormick
Road.
48. He admits that Mr. Stathas' residence is in a rural area and not a housing
deve{opment. Hc did notice a major power linc going through thc lot and indicates that
that presents some setbacks insofar as the power linc goes one half way back on the
Black's lot. Mr. Woof indicated that thcte is no support tower for thc power linc on the
Stathas property and it only cfTeets Lhc comer of the Stathas
49. Regarding cross-examination as to comparable one in thc appraisal, there
arc no commercial uses on either side of that property. Thc same is true regarding the
comparables 2 and 3. Mr. Woof' admittcd that thc sales of the property w~th regard to
comparabies ! and 2 were much higher than thc Statha$ property.
50. A. ttomey Shatto qucstloncd why Mr. Woof was using comparable
properties in Lower Allen Township. Mr. Woof indicated that he did a one year search
and hc fotmd no sales in Upper Allen Township that were comparable.
$1. With regard to comparable 3, that house was all brick. It had whirlpool
tubs and quarry tile. Fire places have a cost o£$$500 to $7500 and adjustments orS1000
Per fire place arc not unusual.
52. Woof testified that he is familiar with uses in Upper Alien Township
district and hc noted that there ~vas a variance granted with regard to the property but that
he should have noted it as a special exception. Mr. Woof'did consider that o~cr uses for
the property could bc raising o£ livestock, poultry, a drive-in stand, or dog kennel. He
testified that that docs not affect his opinion. He indicates that he did consider the
greenhouses use and the Gutshall use and there are greenhouses on the landscaping
business across the strec/.
53. Mr. Woof indicated that as far as layout design goes on the site plan, on
Stathas Exhibit B, the proposed trees will block the view from the Stathas house, lie
took into consideration that the screen plantings would be placed at the bound,fy litte
with the Stathas residence.
54. Mr. Woof said that there is a glare coming from of the Black building
when standing two-thirds to one-half the distance from the Stathas home and Re Black
building as one stands at ground level.
55. Mr. Woof indicated that enating the metal roof may be of some help and
the screen plantings consisting of a good buffer could minimize it. Mr. Woof could not
relate what portion of the damage numbers that he came to related to the glare because he
Can't quantify the damages individually. He came up with a total impact of damages.
56. Mr. Woof was questioned with regard to the study in Susquehanna
Township referred to in Para,apb 7, page 4, He indicated that the study was conducted
by Mr. Woof about 4 months ago. He applied the results of that study to this property
and has conducted similar studies elsewhere. He can't disclose the names of these
studies without authorization of the client or the eom't, because it is confidential and
proprietary in formation.
57. Mr. Woof testified that the plaza referred to in his report, the development
was screened from the plaza, however, the trees died. Fie test/fled the dumpster areas
were all visible, that the Bulford Plaza is a strip mall, that the prices of houses behind it.
are in the $110,000 to $140,000 neighborhood and that homes behind it sell for less than
homes across the street. All the homes that he refers to there Were built around the same
time by the same builder but they could be in different conditions. He testified that for
some of the properties the trees are not in good condition. He said the edge of the
parking lot goes to thc rear of the property lines for those homes. He testified that thc
rear of the property linc was 40-$0 fcct from thc back of thc home. Some of the back of
the homes were $0-70 feet from the back of thc property line, so the homes are about 120
t'cct _From thc back of the plaza buildings, which are 20 years old. Thc plaz~ buildings are
block with metal brown doors. He testified that thc plaza usc is different than the
landscapers o£~ice and storage. Hc testified that there arc 15-20 stores in that commercial
zone and that the homes are in a different development, having 75 by 120 foot lot size.
I-lc reports that the actual sales wcrc .comparcd over an 8 year period and some of the
homes havc sold up to 3 times, He indicates that some of the properties Were loosing
money as tknc goes on. No properties impacted were tn an agricultural zone.
58. Hc said that you can generalize that a commercial use impacts negatively
on residential uses, however if screening were better at Bulford Plaza, there would be less
valuation damage. If there werc a longer distance between a commercial use and a
rcsidentlal usc, there would be less damage there as well.
$9. On redirect by Mr. Brenncman, Mr. Woof testified that the error variance
in USSF does not make any dit*ference in the conclusions.
60. Nfl-. Woof testified that he made adjustments based on ratios of distances
between Ge properties and this area. They are from 400 to $00 up to 750 to 800 feet
away. Mr. Woof testi§cd that he beard the testimony of Gregory Btack that he would
stoic large trucks, but this was not shown on the plan and he did not factor that in his
appraisal. Hc did not see on the plan the area for pilcs of material, stone, etc. on the
property. He also did not factor that into his appraisal. He is aware that the office area is
proposed on the left side with the building facing Stathas, He did factor in that vehicles
would be going in and out, He testified that the more increased activity on the prope2~
the more negative the value.
6l. Mr. Woof testified that on the plan he saw the buildings but the did not see
the piant screenings. Mr. Woof also testified the! he did not measure the distance
between thc buildings and the Stathas residence, but he estimates it to be 250-300 feet
away. He testified that the Stathas residence sits on a higher elevation and evergreens
would need to have maturity to block the view. The plantings would help.
62. Mr. Woof testified the two or three commercial developments did not have
an impact on the residential 'homes since they had substantial screenings and a fair
amount of distance between them.
63. He has not conducted a study for an impact between properties in an
agricultural area,
64. He testified that a house on a busy su'eet typically sells for 5% less than a
house on a quiet street,
65. He also testified that screening is a function of maintenance.
66. In the testimony of'Gregory Black on red/rect, he reviewed the sketch
plans submitted as Exhibit A to the Zoning Hearing Board, He did not prepare the sketch
plan. He testified that he received thc land development plan, Exhibit B, and he did not
prepare that also. He felt that there was not much significant change between the two.
67. He testified that the main building was moved from the middle of the
property, as shown on Stathas Exh/bit A, and on Exhibit B found that the building
encroached the electrical utility lines and that wetlands were found and the building had
to be moved back to where it is shown on Exhibit B. This was much more costly and
required a lot more sediment control and more road work and sewer work.
68. He indicates that screen plantings were put in as shown on Exhibit A. The
screen plantings on Exhibit B are continual but staggered Jn the middle becaUSe there is a
wetland area. He thinks it is a heavily shrubbed area. He proposes to plant 6~7 foot
Douglas Fir and evergreen. Exhibii A on the south boundary has a natural buffer. He
proposes adding an evergreen buffer.
69. On Exhibit A, his proposed mulch storage is now found to be in wetlands.
70. He has been in business for himself for 9 years and 6 years before that he
worked in multiple positions with Walter Nissley Landscape Contractors.
71. He testified it is very typical to store non-plant materials, tan b~rk, top
soil, river gravel, and slate on the property.
72. He otters lanclseape maintenance at the present time, including trimming
and weeding, commercial edging, edge trimming, mowing, renovation and installing new
landscape.
73. He uses two trailers for off site work, because they house mowers, weed
whackers.
74. He also testified that it is typical to store leaves and waste from a job site
on his property. He has leaf and limb waste area at the storage site in East Permsboro
Township and has it hauled out once a year by an excavator, usually in December.
75. He testified ii is typical to store brick pavers. Usually they are delivered at
the job site.
76. He testified that the piles $taown in the pictures of the East Pennsboro site
are excess from a job site and they vary as to the len~h o£ the time they are held based
on their need. He indicates that stone usually gets used up fairly quickly and pavers take
longer,
77.
He testified it is typical to store loaders and excavators on the site but does
not intend to use the chipper on the site. He testified the chipper is used off site.
78. He also testified that the maintenance that they would do on the vehicles
would be charting blades on the mowers, lubrication of the equipment and that is
generally light maintenance that they do.
79. He hopes to have the main building finished in two to three weeks and
proposes to build a tan bark bin..
80. Hc testified he has a permit or believes he has a pe,,Mt to build the polY-
houses. He would like to build one next year before the temperatures freeze and he
would then use it. The pole shed is not constructed and so far the costs wilt be over
$375,000, but not including the land.
81. As far as Stathas Exhibit A and B goes, he believes that there.is no cilange
iu what he proposes.
82. He testified that he is familiar with the Gutshall property and the H & N
Property and proposes to maintain his property in the condition that the other two are
kept,
83. He testified he has not ~topped his eonsmaction activity as he is too far
into the financial cycle in order to stop that. He testified he had an agreement with sewer
hook-up and he had purchased all steel beams for the buildings and had given notices to
landlords at three places by the time that Mr. Stathas had objected.
84. Photos were introduced by Mr. Black. BlaCk Exhibits B1 - B4 and B5 -
B9. The photos were taken approximateIy one month ago and were developed the next
day.
Photo I is an elevation showing the front of the corporate office as one leaves the
first floor.
Photo 2 is entrance to the office at scene 1.
Photo 3 is the same as 1 but a different distance.
Photo 4 is a picture of the front of the office landscaping.
Photo 5 is a view from the front of the property taken from the comer of the lot
over the driveway cut.
Photo 6 is the rear of the property token from the southeast comer of the property
showing the culvert.
Photo 7 is a photo from the northwest comer of thc new building facing the
Stathas property. It shows the Stathas property is at a higher elevation.
Photo 8 is a picture from the north, side of Lisbum road to the property. The
buffer has not been planted, although he plans to do that. '
Photo 9 is view from the east side at the tower area looking at the building.
85. .On cross examination, Mr. Black admitted the property that he has
presently in operation is not as clean as he would like to have it.
86. He testified that one of the masons he moved the buildings and relocated
the building was because of the power lines. It was not until after they purchased the
property that they found out they had restrictions how far away they.had to stay from the
power lines.
87. Thc sketch plans were done by his father's company as Well as the land
development plan. He does not know if they checked with PP&L prior to locating the
building.
88. The area where thc're are no screenings shown was present in the land
development plan that was submitted to the Planning Commission, however this area was
present on the sketch plan submitted to the Zoning Hearing Board.
89. He does not know why the storage trailers are not shown on the plan.
They arc an important part of his operation.
90. He told Mr. Stathas that hc uses a chipper but has not plans to at this time.
He used the chipper on this property during the construction phase.
91. He testified that Penn Dot required thc removal of the trees from the front
o~'the property and they were chipped,
92. Mr. Stathas filed his objection in December of 2000, but he did not receive
land development plans until the middle of March 2001. The building plan was approved
May 17, 2001.
93. He testified that he was under contract for construction before December
2000.
94. He also testified that hc received financing approval from a lender'before
December 2000.
95. He testified that Exhibits B1 to B4 are pictures of his office and there are
no storage o f equipment or materials there.
96. He testified that he will have materials stored at this property. He is
proposing to store brash in the front of thc wetlands. It will be removed one time a year
and will be about $0-100 yards.
He said several of the plans and permits were held up due to sewer
'97.
capacity.
98.
At this point Mr. Sauder, the Township Zoning Officer, introduced
Township Exhibit A, which is a building permit consisting of 5 pages issued May 17,
2001.
99, Mr. Sauder also testified a plan review was done in January 2000 and a
number of items needed to be addressed. This plan was approved by thc Board of
Commissioners on September 21, 2000, subject to conditions, including sewer module.
The final approval was given by the Board of Commissioners on March 9, 2001.
I00. Keith Peifer of 1,~15 Main Street, Mechanicsburg, PA, presented
testimony. He indicates that he 'knows Mr. Black. He sold the land to Mr. Black. He had
discussions with Mr. Black before he bought the land and he was told that he was going
to build a building and was going to build a residence later when l~is wife was ready for
it. Otherwise he would not he sold it to him had it just been a business.
10l. He also testified that he knew the ordinance and what the uses were in an
Agricultural Zone.
102. Black Exhibit A is being replaced with complete 8 page exhibit approved
by Commissioners 3/9/01 and recorded 5/17/01.
103. Mr. Black testified that his offices are on Front Street in Harrisburg and he
visits the East Permsboro Township site two times a day, early in the morning and then in
the afternoon. V, ehiclcs are stored at East Pcnnsboro and he is physically there 30 to 45
minutes at the end of the day. The rest of the day he is either at the Harrisburg office or
on the road doing est/mates. The estimates would be done at thc Upper Allen Township
site most of the day.
104. Referring to Stathas photograph $. he indicates the/in thc rear of the photo
is an old dwelling and that is not part of his lease. The two vehicles in the photo were his
vehicles. The vehicles in the back were there temporadly for only several days.
105. Stathas ]Exhibit A is a photograph that shows the same dwelling. Cars in
the front of the dwelling, four of them. He indicated that the area in the front is not his
area. The dwelling is not part of what he ]eases. The pallets in thc front are his,
106. Ho testified that he would not be able to stockpile brush in the back due to
a pond detention area.
107. Mr. Black testified that he proposes to stockpile brush in the area of the
proposed mulch storage. He would be willing to screen and organize the mulch and
screen with plantings. He is willing to have material moved more often than one time a
year.
108 Referring to the Black land development plan, he testified that the break in
the evergreen screen plantings are natural tree growth or stock in the area. He is willing
to plant evergreens to continue the screen with the common boundary with thc Stathas
property.
109. On cross-examination, he said he read thc definitions in the ordinance and
he feels that storage is all part and parcel of this type of'business.
110. He also testified thc he was contacted this week by DEP in reference to the
storage piles at another site. The DEP representative said she would do a report with
recommendations ',hey would like him to follow and it would be in the report.
111. Stathas Exhibit G is a photograph of the debris pile at Upper Allen
Township that was placed there by the contractor. Hehas intentions to move the debris
to thc rear of the detention pond area. ·
112. Testimony was presenled for Mr. Stathas from ~ames Gutshall, He owns
the property joining Mr. Stathas. He is familiar with the property leased by Mr. Black in
East Permsboro Township. He was to the property before because he leased it previously.
Mrs. Yost had lived there. He had maintained the property. There were only two pieces
of equipment in the shed and a pile of mulch. There was 100 ton of topsoil in the rear.
He could not get it out ~iter Mr. Black moved in. It was difficult to move his topsoil due
to Mr. Black putting debris in front of the top soil pile. He goes past it from time to time
and it is not as well kept. Mr. Gutshall testified be had fewer pieces of equipment than
Mr. Black.
113. Mr, Gutshall testified that his business was turned over to his son about
three years ago and he feels he would not be competing with Mr. Black. He is familiar
with the site as well as the H&N site. He objects to more buildings going up. He does
not object to the existing building on the site.
114. David Stefanick of 1215 McCormick Road, Mechaniesburg, PA, testified
that he owns 70 acres of ground that meets the back of this subject parcel and has a 60
foot right of way adjacent to the property. His home is located on the property and he has
approached the Planning Commission for purposes of subdividing the ground for 10 acre
16ts for residential development, Mr, Stcfanick is concerned that the use will affect his
property values, He stated he did not receiw a hearing notice initially, He is concerned
it will bc an environmental problem and an eyesore. He has been a resident for 26 years.
and has invcs~cd a lot of money in his property, .He is concerned with the possibility that
it will turn into a dttmp,
'l 15. Mr, Stefanick is familiar with the other two landscaping businesses. They
arc well maintalncd,
116, Mr. Stcfanick objects to the building that is now along the boundm-y that
was initially approved to bc in the center, Screening would help but he is concerned
about additional debris. He feels the other landscapers have a lot more acreage, He
objects to Mr, Black placing too much burden on a 5 acre plot.
117, Debra Ooctz lives at 117 McCormick P, oad and has 25 acres, She has
attended thc last two hearings. She feels that thc property affects thc character of the
ncighborhood and objects to it. She said it completely changes the reasons why they are
there, This is a rural area. That there are birds and wildlife. Tha~ thc noise level is low
and that this activity with trucks and snow plowin§ equipment will increase the level of
noise, At thc present time they can hear the beeps from construction equipment on the
site. She is concerned that durin~ snow plowing periods they will be x~mn/ng 24 hours a
day, She feels there will be a lot of air pollution from trucks and fumes, She is concerned
about chemical storage and that thc wetland flows into a creek along the side of the
property, She is concerned about truffle goln$ in and out of'Lisbum Road as well as the
water supply to the neighborhood-
l Ig. She did not know that the Gutshalls owned a landscaping business there
for the last 18 years. It lo6ks like a family garage. She knows that H&N has .a
landscaping business there but it doesn't stand out. She £eels that this warehouse is large.
119. She also testified that she lives next to Mr. Stefanick. She feels 'she is
close cnou~,h to hear the beeps of the truck. She can hear the activity, but she can't s~ it
from her home, She can see it as She drives past it.
120. She has ~ back~ound in real estate, although she doesn;t practice in this
area. She £ccls it will affect thc value of the land in the area. She feels it would be better
it'there was a residence on thc site,
121. Edward Stathas of 1350 E. Lisbum Road, Mcchanlcsburg, PA, testified
that he has been a '~'owuship resident for 12 years. He has bccn at that address with his
wire Mar~lyn and his children Stephanic and Shawn. He has 5.8 acres. He shares a
common boundary linc with the property. The building on the Black property is east of
faire. His house is sbout t $0-200 fect from thc boundary line.
122. His driveway runs along the boarder with the Black property. He has se~n
people cut across his driveway to the Black's property. He is concemext about tractor
trailers impacting Iris driveway by vehicles and Black employees cutting over the corner
of his propertyl Some vehicles have traveled over Blacks new landscaping onto the
Stathas property.
123, He has introduced photos in Exhibit H I through 5. These arc 5 photos
showing a semi-truck parked on his driveway. This was in May 2001. It was unloading
he,~vy equipment. He is concerned about safety regarding the vehicles and children in the
124. At times Mr. Black has had workers in his building until 11:00 P.M. on
weekends working on the build..ing.i He feels there is an amphitheater affect the way the
Black building is built in rela'tion to the slope and has introduced photos I 1 and I 2,
which show the building. The pictures show where the debris was placed in the 25 foot
area reserved for the buffer, as wellas wood chips in some place in the buffer area.
125. He testified that the chipper was used for chipping wood and was very
loud. There were noises of macks backing up and music played by workers. Pick up
macks were being driven until 11:00 P.M. on weekends.
126. From his house he can see the roof of the structure. The roof is
approximately 10 feet below his back porch.
127. He also submitted Stathas Exhibit J. This is a brochure regarding sound
emissions pulled out from Ve~,-,~eer Manufacturers of equipment, which indicates that use
of this chipper would exceed the noise level standards as defined in Section 245-39 of the
ordinance.
128. He is concerned about the number of employees at the site. According to
Penn Dot, Mr. Black can have up to 750 trips per day. Penn Dot allowed him to expand
the driveway for heavy equipment.
129. Mr. Stathas testified that he took the photos of Mr. Black's East Pennsboro
site, and Mr. Black has proven that he has stored railroad ties, brush, debris, etc.
130. Mr. Stathas feels it would be a different story if Mr. Black lived there' He
said houses in the area start at $350,000 to $600,000. Adjacent properties to the east are
rural residential and move that way into Lower Allen Township.
131. He introduced Exhibit K, which is his letter from John Owen of East
Pennsboro Township, dated ..OCtober 2, 2001, and refers to debris dumping and that his
investigation in East Pennsboro is not concluded.
132. Mr. Stathas said he was not aware of any traffic studies on the Black
property. He is concerned about :traffic studies not being done. He feels there will be
substantial change in the area.
133. Township Exhibit B 1 through 4 deals with notices that were sent to Mr.
John Eby by Max Amaechi and from Mr. Eby to Penn Valley Corporation, Keith Peifer
and Mr. McCreary.
134. Testimony from Mr. Edward Stathas indicates that he observed mud on
and off the highway and Mr. Black stored vehicles along the side of the road. He is
concerned about the debris piles and brash in the future. He is also conCerned about
timber and construction in the brash and materials being stored 5, 6, 7, 8 feet high and
maybe 10 feet high and how will they be affected by wind blowing onto his property.
'135. K1 through 14 are photos taken by Mr. Stathas depicting properties in the
area and generally the homes in the neighborhood.
136. .Mr. Black testified that during the initial application to the Zoning Heating
Board he did not know that there were wetlands on the property,
137. Herb Thieme asked questions regarding the building being 14 feet above
ground level and how 8 to 10 foot plantings would shield that. The response was that all
that basically they were attempting to screen was the building from Mr. Stathas' first
floor. Mr. Black replied that this was bigger than what was required under the ordinance.
138. The parties discussed getting a surveyor to provide some insight into the
elevations between the Black'a~.'d Stathas property.
139. Mr. Black indicates that the screen is a visual screen, but it would also
have some acoustical benefit that would reduce the intensity of the sound.
140. Mike Homsey testified on behalf of Mr. Stathas. He resides at 1240 E.
Lisbum Road and resides on a sharp turn on Lisburn Road near H&N Nursery. He has
two primary concerns. He has sat through all of the hearings. One is the availability of
water and possible problems with watering the area. He sees water being used in great
volumes at the nursery.
141. The second concern is traffic and safety. There is an indication of a lot of
accidents in the area. He indicated stopped traffic will rear end in that area. The biggest
problem is tractor trailers blocking traffic going in and out of driveways, primarily in the
eastbound direction.
142. On cross-examination he has indicated that he is concerned about any new
construction and the cumulative level of it. He has not complained to the Township in
the past but has spoken to police about some traffic problems.
143. Gregory Black was recalled by Attorney Shatto. Mr. Black says no debris
has been dumped on the common bounda~, however he stored some sand for a walkway.
144. He indicates that some of the items that were placed on the lot and
depicted on by Mr. Stathas were placed by an excavator. That he had not received any
direct complaint from Mr. Stathas. Once he was made aware of it, he got a subcontractor
to get it out the next day.
145. Some of the items depicted in the photos were materials that were being
used by or left by subcontract0? and would not be left there permanently.
146. He further teSti'fied that he did not intend to operate his chipper at the site.
He had no objection to such a condition being placed on any conditions to a special
exception.
147. He does not intend to increase the number of employees or trips to the
property.
148. He also testified that he was not requested to do a traffic study and that his
site at East Pennsboro is not under investigation. DEP was by to the site and there were
no citations for violations given.
149. He has not burned at the Lisbum Road site and he does not intend to bum
there.
150. He intends to operate from 7:00 A.M. to 4:30 P.M., Monday through
Friday, sometimes half days on Saturdays. The exception would be during snow removal
operations.
151.
152.
153.
He tapers his employment down to 8-10 people by December of each year.
He expects to spend 2-3 hours a day at the site himself.
He has reviewed the Country Market proposal and has not proposed three
tier plantings because he does not feel that they are necessary at this site.
154. He testified that he has large cypress trees available and introduced them
as Exhibits E1 to El5. Photos of these trees were taken on 12/10/01. They accurately
depict the cypress trees they are located in Ickesburg, PA. They are 14 feet tall and he
says they are available to him for use along the common boundary with the St'athas
property. They will grow to 25 feet. They will grow aPproximately 18 inches a year
after the first year. These wou!d.thenbe a solid wall. There are 62 trees that will cover
155 feet at 2 V2 intervals.
155. Mr. Black also testified that he would paint the roof, if he would have to,
to reduce glare.
156. Mr. Black testified that he received one call that there was some damage
to Mr. Stathas' driveway at the time of the excavation. The excavator said he would take
care of it.
157. Mr. Black introduced a number of photos E1 up to El5. They basically
depict other uses in the area, barns, the Gutshall property, branches and stock piles at the
H&N site, two open trailers and a bull dozer in the neighborhood, metal buildings, small
storage garages, dumpsters.
158. On cross-exarm'nation Mr. Black testified he has no personal knowledge of
vehicles crossing from his driveway to Mr. Stathas' property. The planting area is two
feet at the end of the southwest comer and the closer you get back to the comer the
narrower it gets.
159. He would plant 5 feet from the property line and the trees at the second
level would be at the same elevation. He would label them 1 to 62 for replanting.
160. He agrees that two to three trees back to back, staggered are better for
noise reduction.
161. He has a hydro-seeder, a small 1994 unit, and has acquired a new one that
is 7 or 8 feet tall.
162. Mr. Stathas testified that the lighting at night comes in through the
windows. Vehicles pulling ini~shine headlights onto the property.
163. Stathas Exhibit L, dated October 10, 2001, is the screening plan to create a
noise barrier. It is an estimate from Country Market Nursery. They feel that 3 - 4 foot
high trees are not enough due to topography and the new building elevation being lower
than the Stathas property.
164. .Mr. Stathas' complaint is that he went to the Township. They took no
action.
165. Exhibits M1 and M2 are photos taken by Mr. Stathas in the last two or
three weeks and they accurately depict the property. MI photo was taken from Mr.
McCreary's at the front. It shows the lack of leaves on the deciduous trees. M2 is a
photo taken from Mr. Peifer's property.
166. Stathas Exhibit N are minUtes of the Board of Commissioner meetings
asking the Township to stop additional work on the Black's property·
167. A portion of the comprehensive plan was introduced into evidence as
Exhibit O. Some comments addressing the comprehensive plan were made to the Board.
168. Mr. Stathas also testified that he reviewed the hearing transcript of the
Zoning Hearing Board's first heating and the Zoning Hearing Board did not consider the
effect of the comprehensive plan on the Black proposal.
169. Thomas Hobbs of 1313 McCmmick Koad testified that he heard the
testimony tonight. He feels that the use would effect the neighborhood. He lives next to
Mr. Stefanick. He indicates that he is concerned about the property values.
170.
the areal He sympathizes wit.,h~Mn Stathas.
heard thumping soUnds like a machine gun.
much harsher for Mr. Stathas.
Mr. Hobbs feels that the use would not be appropriate to the character of
He didn't know what the noise was but he
He said he Can live with it, but it has to be
171. Betty Fry lives at i242 McCmmick Road. She feels that it is a scenic
area. You need 5 acres to build a home. She questions how you can build a business on
a 5 acre tract. She feels it should be a larger tract.
172. Mr. Stathas on cross-examination said he bought the parcel from Mr.
David Stefanick in 1990~ He admits that there are other nursery businesses nearby, H&N
Nursery and Gutshall's that does mowing. The Stathas property is a quarter mile from
H&N Nursery. He is not objecting just to the change in the plan. He is objecting to this
activity being an agricultural and scenic area and feels that this type of use should not be
of this magnitude in the Township. He objects to develop the site as set forth in Exhibit
A.
173. Mr. Stathas says it is not relevant whether you could put a house there,
since there is not enough area, but Mr. Stathas is familiar with other uses available within
this district. He does not object to a nursery, nursery stock, greenhouses, and other
permitted uses.
174. Mr. Stathas testified that. he agreed that Mr. Black has a right to use the
property in accordance with zoning, but says that the use he is putting in is a commercial
business.
175. Mr. Stathas admits that a permitted use does not have to go through a
special exception process. He would object to a pig f~m and everybody else Would
object to it. He feels it would be okay on 50-100 acre site but not while a property is
bordered by rural residential, i '~
176. Mr. Stathas iestified that it would be difficult to plant an effective screen
when there is only a 5 foot fiat area at the boundary line. He feels that the planting area
should be planted in such a way that it does not encroach on his property.
177. Mr. Stathas also testified that he did not feel the Mr. Black's driveway
permit meets HOP standards and that the damage to his own driveway has not been
repaired. The subcontractor of Mr. Black said they would repair the damage to his
property but they have not done so.
178. Stathas Exhibit I 1 was a photo of stone and sand and he is objecting to
piles of stone and sand. On Exhibit 1 2, chipping and tan bark etc. are on the buffer area.
He said he con_fumed chipping of wood on the lot. He said there was a big chipper on the
property and they were chipping wood away.
179. Mr. Stathas said he complained to Mr. Black about the piles of debris and
he complained to the Township that things were being put in the buffer yard. The pile
still remains six months later.
180. Mr. Stathas also complained about the noise levels coming onto his
residence from trucks entering and leaving and contractors coming in and out while the
property is still under construction.
181. H. Edward Black 243 N. Front Street, Harrisburg, PA is the business
address. He is a licensed landscape architect. He is familiar with landscape contractors
and has been dealing with them for the past 5 years. He believes that his son's proposal
for use of the site is typical for landscape contractors. He did not prepare Stathas Exhibit
A personally, but it was done t~nder his supervision.
182. Black's Exhibit A is a land development plan prepared under his
supervision. Stathas Exhibit A and B are different due to the fact that Mr. Black testified
that you don't know if the plans Will be approved. It was only after the Zoning Hearing
approval that they had a survey done, which, was subcontracted out. They contacted
PP&L and there was.an unrecorded PP&L additional right-of-way. The building as
originally submitted to the Zoning Hearing Board was in the 50 foot setback. This
required changing the building scheme and pushed the building into a wetland and had to
be moved eventually beyond the wetland. They could not move the building closer to the
road due to the power lines.
183. Stathas Exhibit A shows 2 proposed future buildings, 4000 square foot
each. They are not shown on Stathas Exhibit B. This site was more restrictive and they
had to realign them to make them work. The proposed location on Stathas A for mulch
was in the wetlands. They did not know the wetland area was there when it was
sketched. The added proposed pole shed on Stathas B was put in because they were
trying to put in a couple more spaces. The adjusted parking spaces were adjusted to meet
the ordinance. No proposed trailer storage on Stathas B, so it was felt that it was not
necessary to locate those in the areas.. There was no storage of equipment vehicles
shown, because it is anticipated that they will be in the building.
184. When asked why the revised plan was not submitted to the Zoning
Heaxing Board. He said he felt they were not changing the land use or the operation of
the building.
185. Mr. Black testified that they were re£ming the plan. He was at the site last
Monday and the sloping 'a~.d grading were consistent with Black Exhibit A. The
driveway is 24 feet, but ha~ a 75 foot flair at the right of way with Penn Dot and is
consistent with the definition of a low volume driveway.
186. Mr. Black testified the he feels a screening of 8 to 10 feet tall would
screen the view.
187. He submitted Black Exhibit C 1, which is a view looking from the
wetland. These photos were all taken 12/10/01. C 2 was a view of the Gutshall
homestead and operations taken from Route 114. C 3 through 7 were photos that were
taped together for panoramic view. The photos show the common boundary area with
the Stathas property. He feels the photos accurately depict the propertyl
188. A sketch was prepared of what the project would look like. They had a
Stathas B colored in to show what it would look like when completed. The light area was
low growth. The dark area is proposed screening. Part of the property would be a
nursery area. He feels the height would be 2 to 3 feet along the btam proposed along the
eastern side of the driveway.
189. Brad McCleary testified. He lives at 1401 Main Street Lisbum. He owns
the lot across the street. His residence.is entirely in Lower Allen Township. He knows
Mr. Black and has known him for 8-10 years and has been on the Planning Commission
of Lower Alien Township for a while. He believes that this is a residential area and that
if they put in a commercial use, he feels that there is a decrease in the value.
190. He testified that when they first came in to do work trees were cut down
and bleTM over onto the road.' He put them back onto Black's property and they blew back
,
over to his lot again. Then he put them back on their property again.
191. While there has been some reduction in light intensity, it still goes directly
into his son's bedroom and he has some concern about trucks coming in and out,
especially in the morning.
192. He thinks the distance between the buildings is 200 yards. There are a
couple of flood lights there and he understands they are there for security reasons and
they have turned them down, but he does not feel that there needs to be as much light.
193. Steve J. Gutshall lives at 6 Gutshall Lane, Mechanicsburg, PA. His
property is within 300 feet of the Black's property. He is to the right of the Stathas
property. He feels that there is impact. He built out in this area because it is beautiful.
The lights from the Black project shine in his bedroom. The properties of other
landscapers in the area are well taken care of because they live there. He feels this
commercial development devalues the property. He believes he is about 425 feet from
the Black's building and the Stathas property sits in between.
194. He did not object to the H&N building, because they are to the back of the
residential area. If Black lived there, he would not be objecting to Black's use of the
property as it presently sits.
195. Mr. Black was recalled as a witness by Attorney Shatto. Black Exhibit F
was introduced. These are elevations. Scale is one inch equals 20 feet. It shows various
elevations and indicates that there are 5 foot intervals. This is an exhibit prepared by
Charles Sunkins.
196. ' Generally the testimony was that he feels that the first floor of the Stathas
property can be screened wi~ about 14 foot screenings.
197. He testified" that the roof would probably be visible from the Stathas
property from the second floor.
198. George Clouser has a professional address of 718 N. Front Street,
Wmmleysburg, PA. He is a real estate appraiser with 29 years experience and he has an
SRA designation and is licensed by the Commonwealth of Pennsylvania. He does
commercial, industrial and residential, plus works for lending institutions. He conducts
400-500 appraisals per year. He has been admitted as an expert witness in Courts of
Common Pleas in York, Cumberland and Dauphin Counties, as well as Assessment
Appeal Board. Fie testifies a dozen times a year.
199. His qualifications were introduced as Black Exhibit FI. Resumes and
qualifications were offered by the witness. FIe reviewed the Township Ordinances. He
visited the site on December 14, 2001, where he went inside the Black property. FIe is
familiar with the surrounding neighborhood. He drove by it several times. He has some
knowledge of the area because he did some appraisals. He considers the area suburban,
not urban and not strictly rural, and mixed uses are generally compatible with the area.
200. FIe has an opinion that when the Black propertyis completely finished and
completed with the screening as shown.on the topo's, there will be no change in value of
the adjoining property.
201. FIe testified you can find the neighborhood as being a number of things.
You can find the surrounding neighbors to Route 15 to the west and to the east to Lisbum
and then to the creek. He completed an inspection and appraisal of the Stathas home and
he had an assistant with him at the time he did it. He considered heavily the Black
Exhibit'D and reviewed the' Woof appraisal. He did the various approaches. He did not
feel the two comparables Used by Mr. Woof were appropriate because they were in the
excessively high $400,000 range. He thinks there Were better comparables in this same
school district.
202. He feels that once the screening and the other issues are resolved, there
would be minimal effect on the value if any at all.
203. The appraisal is submitted as Black Exhibit I.
204. He testified there are some limitations to the Stathas property. The
driveway and the buffer. The power lines are significant at the Black property. They are
not significant at the Stathas property because there is plenty of room to build.
205. David Morgan of 513 Kylock Road, Mechanicsburg, testified he lives in
Upper Alien Township. He is employed by Retew AssoCiates. He is a landscape
architect and registered for 6 years in the Commonwealth of Pennsylvania. He has
worked in landscape architecture for about 14 years. He is familiar with Black
Landscaping Inc. and he is familiar with the offices on Front Street and the Erford Road
site and has been there physically.
206. The time he was at the Erford Road site he saw nursery stock, exterior
truck and trailers. He visited the site several times to tag nursery stock and ask questions
about design work. He is familiar with other landscape contractors for the same reason.
He compares the Erford Road site as typical or above average in terms of quality of stock
and for appearance of vehicles and equipment. He thinks the Erford Road site operation
is more organized than most others.
207. On cross-examination he admitted that he had been in business
relationship with Black for'a~out 6 to 8 years.
208. David Stefanick testified again. He testified there was now glare and
higher noise level in a spacious and low key environment. He is concerned about
devaluation if the business is mn: sloppily. He can't see the business fi:om his home, but
he can hear sounds fi:om it.
IU~SDICTIONAL I~IIqDINGS
The Board found the following with regard to Jurisdictional Issues:
1. The original Special:Exception granted to Gregory E. Black and Christy
A. Black expired six months after the grant of the special exception and prior to the
issuance of buildinl~ permit to Gregory Black.
2. The land development plan should have been resubmitted to the Zoning
Hearin§ Board when changes were made to the plan by the Applicant.
3. The Board accepted jurisdiction to review and comment on the final land
development plan of Black Landscaping Contracting Inc., which is identified as Black
Exhibit A and dated May 17, 2001.
4. The scope of review by the Board will be over the existing building which
has dimensions of approximately 60 feet by 120 feet, the parking area and access to
P, oute 114 (Lisbum Road) and the effect of this building, driveway, parking lot and
layout on the surrounrting neighborhood.
5. The scope of review will also be over the proposed 25 by 50 foot concrete
pad (mulch storage area), but not over the proposed future two poly-houses and proposed
pole she~.
DISCUSSION
The Table of Use Regulations, Schedule B states that a contractor's office and
storage is permitted as a Special Exception in the Agriculture Zoning District subject to
the Applicant showing that the provisions of Chapter 245 Section 127 are met. The
definitional section of the Zoning Ordinance (245_13) indicates that a contractor's office
and storage "shall consist of a building and lot used for the office operation and storage
of materials, equipment, machinery and tools commonly associated with the various
construction trades." Chapter 245 Section 127 of the Zoning Ordinance provides that
Special Exception be granted only after public notice and heating and is not granted if the
use would adversely affect the public health, safety, morals or general welfare of the
residents of Upper Allen Township or if the requested use would not be in harmony with
the spirit of this Chapter and other applicable Township Ordinance. A request for Special
Exception should be permitted when it will not substantially increase traffic congestion in
the streets, increase the danger of fire or panic or otherwise endanger public safety,
overcrowd land or create an undo concentration of population, impair adequate supply of
light or air to adjacent property, adversely affect transportation or unduly burden or
disrupt the orderly expansion water, sewer, school, park or other public facilities or
adversely affect the comprehensive plan or use of the Township or the subject zoning
district as described in the Table of Use regulations or endanger the safety of persons or
property by proper location of design of facilities for ingress and egress, or adversely
affect the property values or character of the surrounding neighborhood.
The Board finds there are some problems with the grant of a Special Exception in
that there is some concem that the use may adversely affect the property values and
character of the surrounding neighborhood.
CONCLUSIONS OF LAW
The Board finds that after due considemti°n and review of the evidence that the
Applicant does not meet the general standards for granting a Special Exception, even
with the imposition of certain conditions.
Dean Ott(~ ~t~s~gainst the grant of Special Exception as conditioned herein.
rant of Special Exception as conditioned herein.
Herbert Thieme Votes in favor of the grant of Special Exception as conditioned herein.
Dated: ~__~//~ ;::Zg~
CERTIFICATE OF SERVICE
I hereby certify that on the date set forth below a true and correct copy of the foregoing
document was served on the following individuals via United States First Class Mail, postage
prepaid as follows:
Dusan Bratic, Esq.
101 US Rte. 15 South
Dillsburg, PA 17019
Keith O. Brenneman, Esq.
44 W. Main Street
Mechanicsburg, PA 17055
Dated: April 12, 2002
Charles E. Zaleski, Esquire
£8£1,-g9/.
~'1~I~-1,1.0/.I, ¥~ 'lllH
.L::I::II:I.LS .I.::I)IEI¥1/~
/W~'"I .1.'~' SA:iNI:tO.LL~'
'3;:l 'l:1::11(]~' ~
GREGORY E. BLACK and
CHRISTY A. BLACK
VS.
ZONING HEARING BOARD OF
UPPER ALLEN TOWNSHIP
100 Gettysburg Pike
Mechanicsburg PA 17055
IN THE COURT OF COMMON pLEAS OF
CUMBERLAND COUNTY, pENNSyLVANIA
: NO. 02-1814
CIVIL
19
WRIT OF CERTIORARI
COMMONWEALTH OF pENNSYLVANIA)
·
cOUNTY OF CUMBERLAND )
TO: ZONING HEARING BOARD OF UPPER ALLEN TWP.:
We, being willing for certain reasons, to have certified a certain action
Gregory E. Black and christy A. Black v. zoning Hearing
between
Board of upper Allen Township
pending before you, do cc~wnand you that the record of the action aforesaid with
all things concerning said action, shall be certified and sent to our judges of
our Court of Corm~on Pleas at Carlisle, within (20) days of the date hereof,
together with this writ; so that w~ may further cause to be done that which ought
to be done according to the laWS and constitution of this cc~monwealth-
wITNESS, the Honorable George E. Hoffer, P'J'
our said Court, at carlisle, Pa., the ~ day of
CURTIS R. LONG, pROTHONOTARY
Postage
(Endorsement Require(
4-12_ -
SNELBAKER.
BEENNEMAN
SPARE
GREGORY E. BLACK and
CHRISTY A. BLACK,
Appellants
ZONING HEARING BOARD OF
UPPER ALLEN TOWNSHIP,
Appellee
and
EDWARD E. STATHAS and
MARILYN A. STATHAS,
Intervenors
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 02-1814 CIVIL
: CIVIL ACTION
NOTICE OF INTERVENTION PURSUANT TO
53 P.S. § l1004-A.
NOTICE is given that Edward E. Stathas and Marilyn A. Stathas, owners of real property
located at 1350 E. Lisburn Road, Mechanicsburg and persons directly involved in the above
action, hereby intervene in this action pursuant to 53 P.S. § 11004-A.
SNELBAKER, BRENNEMAN & SPARE, P. C.
Date: April 17, 2002
BY:
Keith O. Brermeman, Esquire
44 W. Main Street
Mechanicsburg, PA 17055
(717) 697-8528
Attorneys for Intervenors
Edward E. Stathas and
Marilyn A. Stathas
CERTIFICATE OF SERVICE
I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have on the below date,
caused a true and correct copy of the foregoing Notice of Intervention to be served upon the
~ersons and in the manner indicated below:
FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
Charles E. Zaleski, Esquire
Reager & Adler, P. C.
2331 Market Street
Camp Hill, PA 17011
Dennis J. Shatto, Esquire
119 Locust Street
Harrisburg, PA 17101
Dusan Bratic, Esquire
101 U. S. Route 15 South
Dillsburg, PA 17019
Date: April 17, 2002
Keith O. Brermeman, Esquire
SNELBAKER, BRENNEMAN & SPARE, P. C.
44 W. Main Street
P. O. Box 318
Mechanicsburg, PA 17055
(717) 697-8528
Attorneys for Intervenors
Edward E. Stathas and Marilyn A. Stathas
GREGORY E. BLACK and
CHRISTY A. BLACK,
Plaintiffs
ZONING HEARING BOARD OF
UPPER ALLEN TOWNSHIP
100 Gettysburg Pike
Mechanicsburg, PA 17055
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1814
CIVIL TERM
CERTIFICATION OF RECORD
I, G. RANDY SOUDERS, Zoning Officer of the Upper Allen Township, Cumberland
County, Pennsylvania, do hereby certify that the foregoing is a tree and complete copy of the
entire record, including transcripts of testimony, of In Re: Application of Gregory_ E. Black and
Christy A. Black, Upper Allen Township Zoning Hearing Board Docket No. 20
2; Cumberland County Court of Common Pleas Civil Action Number In witness whereof, I have set my hand as of this 2na da~
' OTA .SEn. !
~ £ ~, NOTARY PIJBtlC
~ COMMt4~O# ~QqRE~ [:EBRUARY 2], 2005
00-
0 l~oP~eRNt~Ais~ SLu~ERw~S~ZOH~ng Officer
Mechanicsburg, PA 17055
(717) 766-0756
JOYNER SPORTSMEDICINE
INSTITUTE, INC.
Plaintiff
Vo
JOSE DOMINGUEZ, P.T.
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. 02-1830-Civil
ANSWER WITH NEW MATTER
Defendant, by his counsel, Mette, Evans & Woodside, files the following
Answer with New Matter to Plaintiffs Complaint:
1. Admitted that Joyner Sportsmedicine Institute, Inc. ("Joyner") is
a Pennsylvania Corporation. The Defendant is without knowledge or information
sufficient to form a belief concerning the truth of the remaining averments
concerning Plaintiffs principal place of business.
2. Admitted.
3. Denied as stated. To the contrary, the physical therapy clinic
referenced is operated by Select Medical Corporation ("Select"). By way of further
answer, it is denied that Defendant was employed by Joyner until March 8, 2002 as
the center manager for the Camp Hill clinic. To the contrary, Defendant's
employment as a physical therapist with Joyner began on September 3, 1996 and, on
or about March 1998, he became an employee of NovaCare, Inc. ("NovaCare") when
it acquired Joyner. Defendant became a manager of NovaCare's Camp Hill facility in
October 1998. NovaCare subsequently sold its operation to Select Medical
Corporation ("Select"). Defendant worked for Select until March 8, 2002.
JURISDICTION AND VENUE
4. The averments contained in paragraph 4 are legal conclusions
and no response is required. To the extent a reSPonse is required, the averments are
denied and strict proof is demanded at time of trial.
5. The ave~-ments contained in paragraph 4 are legal conclusions
and no response is required. Defendant consents to venue in Cumberland County.
FACTUAl, BACKGROUND
6. Denied as stated. To the contrary, Joyner is an entity wholly
owned by Select which operates, inter alia, physical therapy facilities.
7. Denied. The answer to paragraph 3 is incorporated herein.
8. Admitted.
9. Admitted.
10. Denied as stated. To the contrary, Defendant was made Center
manager of the Csmp Hill facility while employed by NovaCare.
11. Admitted.
12. Denied as stated. To the contrary, Joyner, NovaCare and Select
all emphasized marketing by the clinic managers but not between physical therapists
and physicians.
13.
14.
Denied. The answer to paragraph 12 is incorporated herein.
Denied. The answer to paragraph 12 is incorporated herein.
-2-
15. Admitted that Defendant signed an Employment Agreement and
that it is attached to Plaintiffs Complaint as Exhibit "A." The remaining averments
refer to a document in writing which speaks for itself.
16. Admitted that the Employment Agreement between Defendant
and Joyner contains the provision entitled "Non-Competition Prohibition." The
provision is in writing and speaks for itself.
17. Admitted that the Employment Agreement between Plaintiff and
Joyner contains a provision entitled "Non-Disclosure." The provision is in writing
and speaks for itself.
18. Admitted that the Employment Agreement between Plaintiff and
Joyner contains the provision entitled "Non-Solicitation." The provision is in writing
and speaks for itself.
19. Admitted that while employed by Joyner, that is, from July 8,
1996 until March 1998, Defendant believed he was bound by the Employment
Agreement and acted accordingly.
20. Denied as stated. To the contrary, Defendant's belief is that
Joyner was acquired by NovaCare in March 1998 and that NovaCare was acquired by
Select. Based on inforination and belief, each acquiring corporation became
Defendant's employer(s).
21. Admitted that Defendant signed the for~-a attached as Exhibit
"B." The form is a document in writing which speaks for itself.
-3-
22. Admitted that Defendant signed the forn~ attached as Exhibit
"C." The fo~ is a document in writing which speaks for itself.
23. Admitted that Plaintiff has attached portions of the "Code of
Conduct" of Select as Exhibit "D." The document is in writing and speaks for itself.
24. Denied as stated. To the contrary, Defendant's conduct while
employed by Select comported with its Code of Conduct.
25. Denied as stated. To the contrary, while working at the Camp
Hill facility, Defendant was employed by Joyner, NovaCare and then Select. By way
of further answer, Defendant's duties were not the same throughout the time period
from September 1, 1997, until March 8, 2002 because his position was not the same
throughout that period.
26. Admitted that Defendant had contact with physicians who
referred patients and also with the referred patients. The Defendant is without
knowledge or information as to what could be considered "substantial" or
"continuous" contact and therefore denies that he had "substantial and continuous"
contact with referring physicians and patients.
27. Denied as stated. To the contrary, while marketing efforts were
part of Defendant's duties, it is denied that they were "central."
28. Admitted that Defendant maintained personal contact with
referring physicians and their staffs on behalf of NovaCare and Select.
29. Admitted.
-4-
30. Denied as stated. To the contrary, most of the information
provided to Defendant was not proprietary or confidential and was of the type used
by such clinics despite their affiliation with Select or any predecessor.
31. Denied as stated. To the contrary, most of the info~:iaation
provided to Defendant was not proprietary or confidential and was of the type used
by such clinics despite their affiliation with Select or any predecessor.
32. Denied as stated. To the contrary, most of the info~i~ation
provided to Defendant was not proprietary or confidential and was of the type used
by such clinics despite their affiliation with Select or any predecessor.
33. After reasonable investigation, Defendant is without knowledge
or information sufficient to form a belief as to what Joyner knew, when they knew it,
or by what means. By way of further answer, Defendant tendered his resignation in
late January 2002 and spoke with Jeff Sargen about opening a physical therapy clinic.
34. Admitted that Jeff Sargen spoke with Defendant who told him
that because he was an employee at will, he was "home free" to open his own clinic.
By way of further answer, Defendant believed Sargen to be a Select employee.
35. Denied as stated. To the contrary, Defendant tendered his
resignation to his employer, Select.
36. Denied. To the contrary, after stating initially that Defendant
was "home free" (See paragraph 33), Sargen subsequently informed Defendant that
-5-
Select would enforce the non-competition provision of Defendant's voided
Employment Agreement.
37. Admitted.
38. After reasonable investigation, Defendant is without knowledge
or infora~ation sufficient to form a belief as to what research was done. It is admitted
that a true and correct record of incorporation is attached to the Complaint as
Exhibit "E."
39. Admitted.
40. After reasonable investigation, the Defendant is without
knowledge or information sufficient to for~ a belief as to what Joyner observed. It is
denied that Defendant used time, equipment, and facilities for any purpose other
than furthering Select business.
41. Denied. To the contrary, Defendant has specifically stated to
Select employees that he has no plans to hire anyone from Select at his clinic. It is
further denied that Defendant requested any employee to assist him with his billing.
To the contrary, Defendant has purchased billing software and needs no assistance
from Select employees in using it. By way of further answer, Defendant has engaged
in a marketing effort on behalf of his new business and has contacted many
physicians, all listed in the Yellow pages, to advise them of his new business.
42. Denied. To the contrary, Defendant has no intention to hire
former colleagues or Select employees or to use any business or clinic models. By way
-6-
of further answer, Defendant intends to continue his marketing efforts which include
all potential referring physicians.
43. Denied. To the contrary, Defendant is not using confidential or
proprietary information from Select in his business.
44. Denied as stated. To the contrary, the Employment Agreement
was rendered void on June 1, 1998 and Defendant is not bound by the Non-
Competition Provision contained therein.
45. Denied that Defendant solicited employees, referring physicians,
and/or sought information or used any proprietary information of Select, NovaCare,
or Joyner. The remaining averments are legal conclusions to which no response is
required. To the extent a response is required, the averments are denied and strict
proof is demanded at time of trial.
46. The ave~-ments contained in paragraph 46 are legal conclusions to
which no response is required. To the extent a response is required, the averments
are denied and strict proof is demanded at time of trial.
47. The averments contained in paragraph 47 are legal conclusions to
which no response is required. To the extent a response is required, the averments
are denied and strict proof is demanded at time of trial.
48. Denied that Defendant has repudiated obligations owed to
Joyner. It is further denied that any "wrongful" conduct of Defendant's has caused
any harm.
-7-
49. Denied that Joyner has suffered any ha~m as a result of any
wrongful conduct of Defendant or that Defendant must be enjoined.
50. Denied that there is any har~- to Joyner. By way of further
answer, there is potential harsh to Defendant who has legally and appropriately
started his own business and who would be denied the benefits of his efforts should
an injunction be issued.
51. Denied as stated. To the contrary, the answer to paragraph 33 is
incorporated herein. By way of further answer, Select subsequently threatened to
enforce the nonexistent Employment Agreement in an attempt to coerce Defendant
from setting up his own business.
52. Denied. To the contrary, should an injunction issue, and it is
alleged that it should not, Defendant will suffer harm in the way of interruption of
business and a bond should be substantial because there is no clear legal right to an
injunction on the part of Joyner.
53. The averments contained in paragraph 53 are legal conclusions to
which no response is required. To the extent a response is required, the averments
are.denied and strict proof if demanded at time of trial.
COUNT I
BREACH OF CONTRACT
54. Paragraphs i through 53 above are incorporated herein by
reference as if fully set forth at length.
-8-
55. Admitted that Defendant entered into an Employment
Agreement with Joyner on July 8, 1996. That Agreement is in writing and speaks for
itself. By way of further answer, upon Joyner's acquisition by NovaCare, the ter~ns
and conditions of Defendant's employment were modified and he was asked to agree
to the changed conditions of his employment or, in the alternative, become an
employee at will. Defendant did not agree to the changes and, pursuant to the
dictates of NovaCare, became an employee at will and his Employment Agreement
was void, effective June 1, 1998. See Exhibit "1" attached hereto.
56. Denied. To the contrary, the documents referenced are not
contracts and further, are not documents supplied by Joyner. To the contrary, the
documents/forays were provided to Defendant by his employer, Select.
57. Denied. To the contrary, Joyner has not sought any such
assurances concerning the Employment Agreement. By way of further answer, at all
times since June 1, 1998, Defendant has been an employee at will whose contract
with his prior employer, Joyner, was rendered void. It is further denied that
Defendant has refused to assure Joyner that he would honor the Code of Conduct.
To the contrary, Joyner never asked for such assurances. The assurances were
sought by Select and Defendant signed the Certificate as provided by Select.
58. Denied. To the contrary, Joyner has not requested a retraction of
the alleged repudiation. The answer to paragraph 57 is incorporated herein.
-9-
59. The averment contained in paragraph 59 is a legal conclusion to
which no response is required. To the extent a response is required, the averment is
denied and strict proof is demanded at time of trial. It is further denied that the
Employment Agreement is effective. The answer to paragraph 55 is incorporated
herein.
60. Denied. To the contrary, the Employment Agreement which
contains the Non-Competition section has been rendered void and therefore, is not
binding. The answer to paragraph 55 is incorporated herein.
61. Denied. To the contrary, the Employment Agreement which
contains the Non-Competition section has been rendered void and therefore, is not
binding. The answer to paragraph 55 is incorporated herein.
62. The avernients contained in paragraph 62 are legal conclusions to
which no response is required. To the extent a response is required, the averments
are denied and strict proof is demanded at time of trial.
63. The ave~a-~ents contained in paragraph 63 are legal conclusions to
which no response is required. To the extent a response is required, the averments
are denied and strict proof is demanded at time of trial. It is denied that Defendant
solicited and/or enticed a staff member and referring physician and/or asked any
Joyner employee to teach him the billing system. To the contrary, these events did
not occur. The answer to paragraph 41 is incorporated herein.
-10-
64. The averments contained in paragraph 64 are legal conclusions to
which no response is required. To the extent a response is required, the averments
are denied and strict proof is demanded at time of trial.
65. Denied as stated. To the contrary, Defendant's employers have
been, sequentially and exclusively, Joyner, then NovaCare, and, finally, Select.
Joyner's obligation to Defendant and Defendant's obligation to Joyner ceased in
March 1998.
66. Denied as stated. To the contrary, Defendant's employers have
been, sequentially and exclusively, Joyner, then NovaCare, and, finally, Select.
Joyner's obligation to Defendant and Defendant's obligation to Joyner ceased in
March 1998.
67. Denied. To the contrary, by letter dated May 27, 1998, the
conditions of Defendant's employment were changed by NovaCare, his new employer,
as the acquirer of Joyner, and because he did not sign the letter containing those
conditions, he became an employee at will and his Employment Agreement became
void. See Exhibit "1."
68. Denied. To the contrary, Defendant did not wrongfully repudiate
his contractual obligations nor has Joyner suffered any damages. At all times,
Defendant has acted legally and appropriately.
-11-
69. Denied. To the contrary, Defendant has no Non-Competition
agreement and there is no basis on which to enjoin him from operating his legally
established and conducted business.
WHEREFORE, Defendant respectfully requests this Honorable Court to
dismiss Plaintiff's Complaint and enter judgment in his favor.
COUNT I1
PROMISSORY ESTOPPEL
70. Paragraphs i through 69 above are incorporated herein by
reference as if fully set forth at length.
71. Denied. To the contrary, the Employment Agreement was
rendered void on June 1, 1998 and no obligation survived that date. By way of
further answer, the Select Code of Conduct (Exhibit D) which Defendant certified he
read and would comply with, as both an employee and a manager, did not prohibit
Defendant from competing with Select after his employment te~-minated. It is
further denied that any pre- or post-termination activities of Defendant violated any
of the terms of Select's Code of Conduct or that any injunctive relief would be
available if they had. (See Exhibit D, which provides for disciplinary action or
termination if there is a violation of the Code of Conduct.)
72. Denied as stated. Defendant made no representations or
promises to Joyner other than those in the void Employment Agreement. Defendant
-12-
knew that his employer, Select, had the right to expect him to abide by the Code of
Conduct, which he has done.
73. Denied. To the contrary, Defendant made no representations to
Joyner, by words or conduct, concerning the items cited in paragraph 73. Any
representations were made to Defendant's employer, Select. Defendant is without
knowledge or information sufficient to for-~ a belief as to what Joyner relied upon.
74. Denied. To the contrary, Defendant did not utilize any
confidential or proprietary infoca~ation particular to Joyner, NovaCare or Select. If is
further denied that Joyner, NovaCare or Select have suffered any harm as a result of
any conduct of Defendant.
75. Denied. To the contrary, Defendant did not wrongfully repudiate
his contractual obligations nor has Joyner suffered any damages. At all times,
Defendant has acted legally and appropriately.
76. Denied. To the contrary, Defendant has no Non-Competition
agreement and there is no basis on which to enjoin him from operating his legally
established and conducted business.
WHEREFORE, Defendant respectfully requests this Honorable Court to
dismiss Plaintiff's Complaint and enter judgment in his favor.
-13-
COUNT III
BREACH OF FIDUCIARY DUTY/BREACH OF LOYALTY
77. Paragraphs 1 through 76 above are incorporated herein by
reference as if fully set forth at length.
78. Denied as stated. To the contrary, whatever obligations or duties
Defendant has run to his employer, Select not to Joyner.
79. The averments contained in paragraph 79 are legal conclusions
and no response is required. To the extent a response is required, the ave~-~,ents are
denied and strict proof is demanded at time of trial. By way of further answer,
whatever duties or obligations Defendant has run to Select, his foi~mer employer.
80. The aver~ents contained in paragraph 80 are legal conclusions.
By way of further answer, Defendant owed no duties to Joyner because his
employment relationship with Joyner terminated in March 1998.
81. The averments contained in paragraph 81 are legal conclusions
and no response is required. To the extent a response is required, the averments are
denied and strict proof is demanded at time of trial.
82. Denied. To the contrary, Defendant did not wrongfully repudiate
his contractual obligations nor has Joyner suffered any dsmages. At all times,
Defendant has acted legally and appropriately.
-14-
83. Denied. To the contrary, Defendant has no Non-Competition
agreement and there is no basis on which to enjoin him from operating his legally
established and conducted business.
WHEREFORE, Defendant respectfully requests this Honorable Court to
dismiss Plaintiffs Complaint and enter judgment in his favor.
COUNT IV
TORTIOUS INTERFERENCE
84. Paragraphs 1 through 83 above are incorporated herein by
reference as if fully set forth at length.
85. Denied. To the contrary, Joyner was acquired by NovaCare
which was acquired by Select who was Defendant's employer. It is admitted that all
of the entities stressed good relationships with referring physicians, which is a
strategy common to all such practices.
86. Denied. To the contrary, Joyner has no expectations with respect
to Defendant because he was not employed by Joyner.
87. Denied. To the contrary, Joyner has no expectations with
respect to Defendant because he was not employed by Joyner.
88. Denied. To the contrary, Joyner has no expectations with
respect to Defendant because he was not employed by Joyner.
-15-
89. Denied. To the contrary, ail the Defendant has done is establish
his own business which may provide competition for Select, his former employer,
which is not prohibited by law or contract.
90. The averments contained in paragraph 90 are legai conclusions
and no response is required. To the extent a response is required, the averments are
denied and strict proof is demanded at time of trial.
91. The averments contained in paragraph 91 are legai conclusions
and no response is required. To the extent a response is required, the averr~ients are
denied and strict proof is demanded at time of triai.
92. The averments contained in paragraph 92 are legai conclusions
and no response is required. To the extent a response is required, the ave~:iiients are
denied and strict proof is demanded at time of trial.
93. Denied. To the contrary, Defendant did not wrongfully repudiate
his contractual obligations nor has Joyner suffered any dsmages. At ail times,
Defendant has acted legaily and appropriately.
94. Denied. To the contrary, Defendant has no Non-Competition
agreement and there is no basis on which to enjoin him from operating his legaily
established and conducted business.
WHEREFORE, Defendant respectfully requests this Honorable Court to
dismiss Plaintiff's Complaint and enter judgment in his favor.
-16-
COUNT V
MISAPPROPRIATION OF TRADE SECRETS
95. Paragraphs I through 94 above are incorporated herein by
reference as if fully set forth at length.
96. Denied. To the contrary, while employed by Joyner, Defendant
worked only as a physical therapist and did not have access to proprietary and
confidential information. By way of further answer, any proprietary and confidential
information which Defendant had access to was that of NovaCare or Select.
97. Denied as stated. To the contrary, while serving at Camp Hill as
the manager, Defendant was employed by NovaCare and subsequently Select.
98. Denied. To the contrary, Defendant did not obtain or use any
information from Joyner, NovaCare or Select that is proprietary and confidential that
he is using in his business.
99. Denied. To the contrary, Defendant has no confidential or
proprietary information of Select or any predecessor that he is using.
100. Denied. To the contrary, Joyner is not Defendant's employer and
any relationship between the two is terminated in March 1998. By way of further
answer, the answer to paragraph 98 is incorporated herein by reference.
101. Denied. To the contrary, Defendant has not solicited any Select
employee or asked for assistance. The answer to paragraph 41 is incorporated herein.
-17-
102. Denied. To the contrary, Defendant has taken great pains to
avoid using any such infor~ation.
103. Denied. To the contrary, Defendant can and is operating his
clinic without the use of such information.
104. The averments contained in paragraph 104 are legal conclusions
and no response is required. To the extent a response is required, the aver~ents are
denied and strict proof is demanded at time of trial.
105. Denied. To the contrary, Defendant did not wrongfully repudiate
his contractual obligations nor has Joyner suffered any d~rnages. At all times,
Defendant has acted legally and appropriately.
106. Denied. To the contrary, Defendant has no Non-Competition
agreement and there is no basis on which to enjoin him from operating his legally
established and conducted business.
WHEREFORE, Defendant respectfully requests this Honorable Court to
dismiss Plaintiffs Complaint and enter judgment in his favor.
NEW MATrER
107. Paragraphs I through 106 above are incorporated herein by
reference as if fully set forth at length.
108. In early 1998, Defendant participated in a conference call where
it was announced that Joyner would be sold to NovaCare.
-18-
109. Subsequently, a transition team from NovaCare visited the Camp
Hill Clinic and explained the changes that would occur with the NovaCare purchase.
110. On or about May 27, 1998, Defendant received a letter from
NovaCare outlining salary and benefit changes as a result of the acquisition.
See Exhibit 1.
111. Defendant did not sign and return this letter and, pursuant to the
statements contained in the letter, he becsme an employee at will of NovaCare.
112. The letterhead of the clinic was changed to reflect that Joyner
was a division of NovaCare.
Following the sale, Defendant received paychecks and W-2 forays
113.
from NovaCare.
114..
pension over.
115.
116.
employees.
117.
Joyner's pension plan was terminated and Defendant rolled his
In 1999, NovaCare was purchased by Select.
Select instituted a new health and benefits program for the
Subsequent to that transaction, Defendant's paychecks and W-2
forms were issued by Select.
118. In the Fall of 2001, the Internal Revenue Service improperly
credited Defendant with income that came to the clinic in the forin of checks for
services rendered, payable to Defendant that he had signed over to Select.
-19-
119. Defendant requested and received a letter from Select in an
attempt to rectify the error.
120. Select wrote a letter to the Internal Revenue Service explaining
that ail checks for services rendered by Defendant had been signed over to Select and
was not compensation to Defendant.
121. Based on info~-lHation and belief, Defendant avers that no
physical therapist or manager in this area hired by NovaCare or Select since March
1998 has had a Non-Competition provision in their Employment Agreement.
122. In late 2001, Defendant for~-aulated plans to open his own clinic.
123. Defendant did not discuss his plans with anyone outside of his
family and professional advisors, with the possible exception of Mr. Shulka, a
physical therapist at the Camp Hill facility. Defendant's communication with Mr.
Shukla consisted of his positive response to the direct question from Shukla about
whether Defendant would consider opening his own clinic someday.
124. In response to a direct question from a physician inquiring about
whether the Defendant was going to open his own clinic someday, Defendant stated
that he was.
125. In January 2002, Defendant told JeffSargen that he would be
resigning to open his own clinic.
126. Sargen was supportive of the decision of Defendant at that time
and wished him the bestl
-20-
127. Several days later, Sargen spoke with Defendant and advised him
that he had spoken with someone at the corporate level who indicated that Defendant
had a non-competition agreement which the corporation would enforce.
128. In a subsequent discussion, Defendant advised Sargen that he
had received a letter from NovaCare near the time of its purchase of Joyner that
made him an employee at will.
Sargen stated that with that letter (Ex. "1"), Defendant was
129.
"home free."
130.
In Defendant's discussion with Sargen, Defendant outlined the
plans for his departure and told Sargen that he did not want to take any current
patients away from the clinic.
131. Defendant repeatedly told Sargen that Defendant was going to
make a clean break and would not take any staff or patients and that he wanted to
build his new business from the ground up.
132. Defendant tendered his resignation on January 24, 2002.
133. Defendant, upon reviewing his personnel file, found a letter from
NovaCare dated July 1, 1998. A copy of this letter is attached as Exhibit 2.
134. Defendant never received this letter nor did he know of its
existence until January 2002.
135. No consideration was tendered to Defendant to support the letter
of July 1, 1998.
-21-
136. Defendant was relieved of his duties as Manager of the Camp Hill
clinic on or about February 8, 2002.
137. Thereafter, Defendant worked as a physical therapist until
February 27, 2002, when he was told to leave the premises and not return.
Defendant was paid by Select through March 8, 2002.
Defendant began marketing for his new business on or about
138.
139.
March15,2002.
140.
Defendant's marketing efforts have consisted of contacting
orthopedic surgeons and family care physicians listed in the Yellow pages and
informing them of his new business.
True to his assurance to Jeff Sargen, Defendant has not hired any
141.
staff from Select.
142.
The claim raised in Count I is identical to one litigated in Jo_vner
Sports Medicine Institute v. David Steibach and Karen Buzzard in the Court of
Common Pleas of Dauphin County, Pennsylvania at No. 5627 - Equity, affirmed in a
memorandum opinion by the Superior Court of Pennsylvania at No. 220 MSA 2000
(J.A4201/00) (the "Steibach Case"). Copies of the relevant opinions are attached as
Exhibits "3" and "4".
143. A final judgment was rendered in the Stejbach Case.
144. The plaintiff in the Ste_ibach Case is identical to the Plaintiff
herein.
-22-
145. The plaintiff in the St~bach Case had full and fair opportunity to
litigate the issue of breach of the employment agreement in that proceeding.
146. The dete~ination of the trial court and the Superior Court in
the Ste_~bach Case was essential to the judgment rendered.
147. Plaintiff herein is collaterally estopped from its clsim raised in
Count I (breach of contract) by the judgement in the St~bach Case.
148. The Non-Competition provision asserted by Plaintiff is
unreasonable with respect to both duration of time and geography and are not
enforceable.
149. The Non-Competition provision asserted by Plaintiff is designed
to suppress competition, is not designed to protect a legitimate business interest, and
is not enforceable.
150. The Non-Competition provision asserted by Plaintiff, if otherwise
enforceable, imposes an undue hardship on Defendant.
151. Enforcement of the Non-Competition provision asserted by
Plaintiff would be unconscionable and against public policy.
152. Plaintiffs claims are barred by the doctrine of estoppel.
153. Plaintiffs claims are barred by the doctrine of unclean hands.
154. To the extent that any valid non-competition provisions exist,
they expired no later than March 2000, two years after Defendant's employment with
Plaintiff ended as a result of NovaCare's acquisition of Plaintiff.
-23-
155. The Complaint of Plaintiff fails to state a claim upon which relief
can be granted.
WHEREFORE, Defendant respectfully requests this Honorable Court to
dismiss Plaintiffs Complaint and enter judgment in his favor.
Dated: May 2, 2002
Respectfully submitted,
F~S & WOODSIDE
METTE,
UIRE
Suprbme ~,~rt I.D. #28960
DANIEL L. SULLIVAN, ESQUIRE
Supreme Court I.D. #34548
3401 North Front Street
P.O. Box 5950
Harrisburg, Pa 17110
(717) 232-5000
Attorneys for Defendant Jose
Dominguez, P.T.
-24-
R~R-26-2002 ?RI 02:29 PM FRX NO, P, 04
VERIFICATION
I, Jose Dominguez, hereby verify and state that the facts set forth in the
foregoing document are true and correct to the best of my information, knowledge
and belief, I understand that false statements herein are made subject to the
penalties of 18 Pa, C,S.A. §4904 relating to unsworn verification to authorities.
DATED: ~/-~
:393550_
Exhibit A
NovaCare
Helping Make Li)~ a la'ttle Better.
May 27, 1998
Jose Dominguez
1065 Pind Ridge Drive
Harr/sburg, PA 17111
Re: NovaCare Employee's Compensation & Benefits
Dear Jose:
As you know, $oyner Sportsmedicine Institute, Inc. was acquired by NovaCare, Inc. ("NovaCare") on
March 12, 1998. In connection with NovaCare's "integration" process, this letter serves as confirmation
of the compensation and benefits which will be provided to you. Because you may be receiving different
benefits from those which were initially offered to you, please be advised that the Employment
Agreement dated 7/8/96 between you and Joyner Sportsmedicine Institute, Inc. is hereby amended as
follows:
(a)
(b)
(c)
(d)
(e)
(I3
Date of Hire -.- 9/3/96
Base Salary. -- You will be paid an hourly rate of S26.75 This calculates to an
annualized salary of $55,640.00 . As a Physical Therapist you are an exempt employee.
Health Insurance -- For those employees who chose to continue their emsring Blue
Cross/Blue Shield coverage, NovaCare will continue to offer this until the end of this
calendar year (1998), at which time you will be offered the opportunity to select fi-om
coverages offered by NovaCare. In the meantime, NovaCare will continue to offer the
existing Blue Cross/Blue Shi.eld coverage.
Those employees who opted to immediately enroll in NovaCare's benefit plans, the cost
to the,.employee will depend on the type of coverage selected.
Life Insurance - At the same time NovaCare puts in place the health insurance
program, it will offer optional life .insurance in the amount of one (1) or two (2) times
the Employee's salary.
Retirement Plan - NovaCare offers a 401k retirement plan in accordance with
eligibility requirements upon completion of 6 months of employment (from or/g/hal date
of hire).
Vacation -- You will continue to accrue time off at an annualized rate of 3 weeks per
calendar year, which breaks down to 2 weeks of core paid time off and 1 week(s) of
FLEX time off to be re-purchased at your option during 'each benefits enrollment.
NovaCare, Inc.
1016 West Ninth Avenue King of Prussia, Penn~lvania 19406 610 992 7200
J Jose Dominguez
May 2T, 1998
page 2 of 2
(g)
(h)
(i)
Education -- NovaCare will reimburse or allow up to $750 per year to be used by the
Employee for educational seminars upon receipt written approval from NovaCare.
Fee's - NovaCare will pay for all approved association and professional fees on an
annual basis.
Employment Contract -- NovaCare will honor the duration of your existing contract with
Joyner Sportsmedicine Institute, Inc. for one year from the date of the Agreement, or 7/8/98. At
that time, you will become an employee-at-will. Either you or the Company may t~Lminate that
relationship for any lawful reason at any time, with or without notice. You and the Company
hereby acknowledge that no express or implied commimaent or promise of employment for any
period of time has been made, and that the at-will nature of this 'employment relationship may
not be altered hereafter,, except through a written agreement signed by an authorized officer on
behalf of the Company.
Please sign this letter below as acknowledgment of these conditions of your employment return it to
NovaCare in the envelope that has been provided to you, no later tl~ Monday, June 1, 1998. Shou2d
you opt not to sign and return this A~eement by Sune l, 1998, your conu-act will be void and you will
become an employee at will on ~une t, 1998.
In the meantime, should you have any questions or need additional information, please feel free to ~ve
me a call directly at 610-992-8968.
Walter Stuhlemmer
Vice President, Human Resources
Acknowledgment:
signature dam
Exhibit B
July 8, 1998
Jose Dominguez
1065 Pind Ridge Drive
Harrisburg, PA 17111
Re: NovaCare Employee's Compensation & Benefits
Dear Jose:
As you know, Joyner Sportsmedicine Institute, Inc. was acquired' by NovaCare, Inc. ("NovaCare') on
March 16, 1998. In connection with NovaCare's "integration" process, this letter serves as con£n'mation
of the compensation and benefits which will be provided to you. Because you may be receiving different
benefits from those which were initially offered to you, please be advised that the Employment
Agreement dated 7/8/96 between you and J0yner Sportsmedicine Institute, Inc. is hereby amended as
follows:
(a)
(c)
(d)
(e)
(f)
Date of Hire -- 9/3/96
Base Salary -- You will be paid an hourly rate of $26.75 This calculates to an
annualized salary of $55,640.00 . As a Physical Therapist you are an exempt employee.
Health Insurance -- For those employees who chose to continue their existing Blue
Cross/Blue Shield coverage, ~NovaCare will continue to offer this until the end of this
calendar year (1998), at which time you will be offered the opportunity to select from
coverages offered by NovaCar~, which .may or may not include Blue Cross/Blue Shield.
In the meantime, NovaCare will continue to offer the existing Blue Cross/Blue Shield
coverage.
. Those employees who opted to immediately enroll in NovaCare's benefit plans, the cost
to the employee will depend on the type of coverage selected.
Life Insurance -- At the same time NovaCare puts in place the health insurance
program, it will offer optional life insurance in the amount of one (1) or two (2) times the
Employee's salary.
Retirement Plan -- NovaCare offers a 401k retirement plan in accordance with
eligibility requirements upon completion of 6 months of employment (from original date
of hire).
Vacation -- You will continue to accrue your time off at the same rate you previously
accrued with Joyner, at an annualized rate of 5 days per calendar year, plus 8 personal
days, plus an optional 5 FLEX days. During the 1998 calendar year, the time off accrued
will be prorated based on the acquisition date of 3/16/98.
NovaCare, Inc.
1016 West Ninth Avenue King of Prussia, Pennsylvania 19406 610 992 7200
3ose Dominguez
Suly 8, 1998
page 2 of 2
(g)
Education -- NovaCare will reimb4urse or allow up to $750 per year to be used by the Employee
for approved educational seminars and $350 to be used by the Employee for dues/licenses,
provided advance written approval is received from NovaCare.
Fees -- NovaCare will pay for all approved assi)eiation and professional fees on an
annual basis.
All other components of your Agreement dated 7/8/96 continue until such time that they are amended or
terminated in writing.
In the meantime, should you have any questions or need additional information, please feel free to give
me a call directly at 610-992-8968.
Sincerely,
Walter Stuhlemmer
Vice President, Human Resources
Exhibit C
JOYNER SPORTS MEDICINE
INSTITUTE, INC.,
Plaintiff
VS
DAVID STEJBACH and KAREN
BUZZARD,
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
NO. 5627 EQUITY ! ~qqq
.
CIVIL ACTION - IN EQUITY
:
Defendants :
OPINION and DECREE NISI
This matter is before the court on a Motion for Preliminary Injunction
filed by Joyner Sports Medicine Institute, Inc. (hereinafter "Joyner") on August 11,
1999. The Defendants, David Stejbach (hereinafter "Stejbach") and Karen Buzzard
(hereinafter "Buzzard") are former employees of Joyner. Beginning May 15, 1996,
Stejbach was employed as a physical therapist and site administrator at Joyner's
East Stroudsburg facility. Buzzard was hired on September 4, 1997, as an
occupational therapist at the same location.
Following a'hearing on August 23, 1999, this court entered an order
which preliminarily enjoined Stejbach and Buzzard "from violating the provisions of
their employment contracts by accepting any employment with Pocono Orthopedic
Consultants", a competing organization located directly across the street from
Joyner's office in East Stroudsburg. The court also ordered a hearing on a
permanent injunction which was scheduled and heard on September 8, 1999.~
~ Both Stejbach and Buzzard appeared in defense of the motion on August 23, 1999; however,
Buzzard did not appear in person or by counsel for the September 8, 1999 proceeding.
There is little dispute regarding the underlying facts. As a condition of
employment with Joyner, both Stejbach and Buzzard entered into an employment
contract which contained the following provision:
11. NON-COMPETITION PROHIBITION: For the
duration of employee's employment, and for a
period of two (2) years following the termination
of employee's employment, Employee shall not,
directly or indirectly, as an employee, agent,
independent contractor, consultant, owner,
stockholder, partner, officer, director or
otherwise, enter into or in any manner take part
in any business or perform any services in
direct competition with the business of the
Employer, within a ten (10) mile radius of the
assigned center.
Employment Agreement: Joyner/Stejbaoh, p. 4.
Buzzard's agreement differs from Stejbach's in only the duration provision which, in
her case, is for a period of one year.
By all accounts, the employment relationship went smoothly until on
or about March 6-9, 1998, when all of Joyner's employees were suddenly advised
that the firm of Nova Care, Inc. had acquired 100 percent of the stock of Joyner.2
Although the Joyner name continued to be presented to the public, it was
immediately dear to the employees of Joyner that they had a new employer.
Within weeks of the acquisition, all employees were summoned to conferences at
various locations where a Nova Care employee explained a new benefits package.
2 Actually, the acquisition of Joyner's stock was by Nova Care Occupational Rehabilitation East, Inc.
which is a wholly owned subsidiary of Nova Care, Inc.
2
Each employee was required to sign an acknowledgement that they had attended
the meeting and that they had received a copy of the "Nova Care (Out-patient
Division) Employee Handbook".
Both Stejbaoh and Buzzard testified that the new benefits package
represented a substantial loss over their arrangement with Joyner. The changes
affected vacation time, a 401K retirement plan and educational benefits. Of
greatest significance to Stejbach was Nova Care's advisory that he would no longer
receive merit-based salary increases (as he had under Joyner); and, moreover, that
his present salary was "capped."
As further evidence of a change of employers, paychecks were now
issued by Nova Care Employee Services, Inc., another wholly owned subsidiary of
Nova Care, Inc. Wages paid after the acquisition were reflected on a W-2 Form
issued by Nova Care Employee Services, Inc. (as "employer"), while those paid
prior to the acquisition were separated on a W-2 showing Joyner as "employer".
Apparently dissatisfied with his new employment status, Stejbach
tendered his resignation on July 10, 1 999. He advised his regional director of
operations that he would be joining Pocono Orthopedics, a group of physicians in
East Stroudsburg who planned to open a physical therapy component to their
practice. Stejbach's last day of work at J~yner-Nova Care was August 10, 1999.
Buzzard gave Nova Care a one-month notice at about the same time and indicated
that she, too, would be gong to work for Pocono Orthopedics.
We begin our legal discussion by noting that none of the Defendants
contest the underlying validity of their employment agreement or the
reasonableness of its terms. The agreements are supported by adequate
consideration and, given the nature of the.employer's business, were reasonably
necessary for their protection. See, Sidco Paper Co. v. Aaron, 465 Pa. 586, 351
A.2d 250 (1976). For a restrictive covenant to be enforceable, it must be
"reasonable in time, reasonable in geographic extent, and reasonably necessary to
protect the employer without imposing an undue hardship on the employee."
Peripheral Dynamics, Inc. v. Holdsworth, 254 Pa. Super. 310, 316, 385 A.2d
1354, 1359, (1978). The spatial (ten miles) and temporal (one year-Buzzard; two
years-Stejbach) limitations would appear to be reasonably necessary in this case.
Accordingly, we are satisfied that, given no change in employment relationship,
Joyner would be clearly within their rights to enforce the restrictive covenants in
these employment contracts.
We are faced, however, with the issue of the effect of the purchase Of
Joyner by Nova Care, Inc. in March of 1998. Joyner argues that the outcome of
this case hinges upon the difference between a stock acquisition and an asset
purchase agreement. Joyner argues that, after the purchase of its stock by Nova
Care, Joyner remained a viable corporate entity, only with different shareholders.
As such, Joyner contends that there was no need to transfer individual assets,
4
rights, or liabilities as there would have been in an acquisition through the purchase
of assets.
"Thus, the parties need not prepare the deeds,
bills of sale, and other instruments under which
assets are assigned and liabilities assumed in the
asset transaction. The only transfers involved are
exchanges by the selling shareholders of their
shares for the stock or other consideration given
by the acquiring corporation."
Corporate Acquisitions and Mergers, Section 5A.04(2)(a) (Matthew Bender & Co.,
Inc., 1998).
In accordance with the foregoing, Joyner argues that all employee
contracts were acquired by Nova Care and that no assignment was necessary.
Drawing an analogy to a unionized work force, Joyner argues that buyers in a stock
transfer or sale are normally bound by the sellers' contract with the union, while
buyers in an asset purchase are not, citing Walters, Katherine E., Other labor and
Employment Issues in Buying & Sellin.q a Business, 116 (Christopher M. Chicconi,
et al., Eds. Pennsylvania Bar Institute 1997).
Stejbach and Buzzard argue, on the other hand, that their
situation is controlled by All-Pak, Inc., v. Johnston, 694 A.2d 347 (Pa. Super.
1997). In AIl-Pak, the employee, Johnston, entered into an employment contract
with AlI-Pak, Inc. at the time he began his employment. The contract contained a
restrictive covenant not to compete post-employment. Thereafter, AIl-Pak, Inc.
entered into an "Asset Sale Agreement" with an investment group, Total-Pak, Inc.
Total-Pak purchased all of the assets of AIl-Pak, Inc., and changed its name to All-
Pak, Inc. Johnston continued his employment with the new AII-Pak, Inc., until his
employment was terminated. Thereafter, he became employed by a competitor of
AIl-Pak, Inc. The new AIl-Pak, Inc. filed suit seeking equitable and legal relief.
Superior Court framed the issue: "Whether an employment contract
that includes a restrictive covenant can be assigned from one employer to another
without obtaining the consent of the employee." Id., 694 A.2d at 350. After
reviewing the general principles governing the enforceability of restrictive
covenants in employment contracts, the court observed that "no Pennsylvania
appellate court has ruled whether a restrictive covenant in an employment contract
can be assigned by the employer." Id. Judge Schiller went on to state:
Strong policy considerations underlie the
conclusion that restrictive covenants are
not assignable. Given that restrictive
covenants have been held to impose a
restraint on an employee's right to earn a
livelihood, they should be construed
narrowly; and, absent an eXrplicit
assignability provision, courts should be
hesitant to read one into the contract.
Moreover, the employer, as drafter of
the employment contract, is already in the
best position to include an assignment
clause within the terms of the employment
contract. Similarly, a successor employer
is free to negotiate new employment
contracts with the employees, as the record
reveals new All-Pak did with several
employees, or secure the employee's
consent to have the prior employment contract
remain in effect.
Id. at 351.
In AII-Pak, as in the case before us, the employment contract
contained no assignment clause and neither the new or former employer attempted
to obtain one. Thus, there was no express or implied consent to the assignment.
Green's Dairy, Inc. v. Chil¢oat, 89 D.&C. 351 (York 1954); C.F. Jack Tratenberq,
Inc. v. Komoroff, 87 D.&C. 1 (Phila. 1951).
AIl-Pak next considered how those factors attending an employee's
termination might affect the enforceability of a restrictive covenant; e,g. did the
employee quit voluntarily, was he discharged for poor performance, or was he fired
without cause. Insulation Corp. of America v. Brubston, 667 A.2d 729 (Pa. Super.
1995).
We believe that AIl-Pak is controlling in the case at bar. True, as
Joyner strenuously argues, AIl-Pak involved an asset purchase agreement as
opposed to a stock purchase. However, we view this as a distinction without a
difference. The point of focus should not be on the relationship between the old
employer and the new employer, but rather as between the employee and the new
employer. The strong policy considerations referred to in AIl-Pak recognize that the
employment relationship is a personal matter between an employee and the
company who hired him and for whom he chose to work. Unless an employee
explicitly agreed to an assignability provision, an employer may not treat him as
some chattel to be conveyed, like a filing cabinet, to a successor firm. In the case
7
at bar, the employment contract drafted by Joyner is devoid of any assignability
provision.
We are also compelled to note that in AlI-Pak, the plaintiff was the
successor firm, i.e. the "new" AIl-Pak, Inc., which sought to enforce the restrictive
covenant. In the case at bar, it is Joyner that seeks to enforce the covenant, not
its successor, Nova Care. Thus, the assignability of the contract is technicaliy3 not
at issue here. It is Joyner, the original employer, that has brought this action.
It necessarily follows that we must then ask, what is the present
employer-employee relationship between Joyner and Stejbach/Buzzard? Upon our
review of the evidence, we are satisfied that any employment relationship between
these parties was effectively terminated on or about March 9, 1998, the date of
the acquisition. While Joyner may continue to exist as a corporation, it is only a
shell. The ,change in paychecks and W-2's are clear evidence that Joyner is no
longer the employer of Stejbach/Buzzard. Moreover, Nova Care unilaterally altered
the compensation package for these employees.4
We conclude as a matter of law that, as of the acquisition date,
Stejbach and Buzzard were no longer employees of Joyner and that they were
3 We say "technically", with the full realization that it is in fact Nova Care that seeks to enforce the
contract through its wholly owned subsidiary Joyner.
4 Joyner argues that the employment contracts allow the employer to change the benefits from time
to time "at Employer's discretion." This argument overlooks the fact that the benefits were
changed by Nova Care and not Joyner.
Fp.8
effectively terminated. Although terminated from Joyner, and although the
contract was not assigned to Nova Care, Stejbach and Buzzard were still obligated
to Joyner under the non-competition prohibition of their contracts. Under the
contract terms, this provision survives the termination of employment for any
reason. That is to say, this clause's viability is not dependent on whether the
employee was terminated with or without cause or left voluntarily. Thus, in the
case of Stejbach, the noncompete clause is effective for two years, i.e. from March
9, 1998, to March 9, 2000. As for Buzzard, who had only a one-year limitation,
the restriction was operative only from March 9, 1998, to March 9, 1999. As of
this date, then, Buzzard is no longer bound by the non-competition prohibition.
What remains as to Stejbach is an application of the review required
by Insulation Corp. of America v. Brobston, supra. In that case, our Superior Court
determined.that, regardless of the reasonableness of the time and space
restrictions, where an employer fires an employee for failing to perform, "it is
unreasonable as a matter of law to permit the employer to retain unfettered controi
over that which it has effectively discorded as worthless to its legitimate business
interests." Insulation of America, 667 A.2d at 735.
In our case, although the termination was accomplished unila~terally by
the Joyner-Nova Care acquisition, Stejbach was given continued employment.
Stejbach continued in that new employment until tendering his resignation on July
10, 1999. As to Stejbach, we find his non-competition prohibition to be in effect,
from March 9, 1998 through March 9, 2000, and enforceable.
Accordingly we enter the following: ,~
DECREE NISI
AND NOW, this 30~h day of November, 1999, the preliminary
injuncti.on entered by this Court on August 23, 1999, as to Karen Buzzard is
As to David Stejbach, the injunction is made permanent through March
dissolved.
9, 2000.
E COUR-~.
Distribution:
Ronald M. Katzman, Steven E. Grubb, Esquires, Goldbert, Katzman & Shipman, P.C., 320 Market
Street, P.O. Box 1268, Harrisburg, PA 17108-1268
James J. West, Esquire, 105 North Front Street, Harrisburg, PA 17101
10
Exhibit D
J. A42012/00
]OYNER SPORTS MEDICINE INSTITUTE,
INC.,
Appellant
DAVID STE.1BACH AND KAREN BUZZARD,
Appellees
IN THE SUPERIOR COURT OF
PEN NSYLVANIA
Appeal from the Final Decree Entered December 13, 1999,
In the Court of Common Pleas of Dauphin County,
Civil Division at No..5627.
BEFORE: POPOVICH, FORD ELLIOTT and BROSKY, ]3.
~= ! L tm :} DEC 2 6 2000
MEMORANDUM:
This is an appeal from the final decree entered on December 13, 1999,
in the Court of Common Pleas, Dauphin County, which affirmed its decree
nisi of No.vember 30, 1999, and denied Appellant's exceptions. The final
decree enjoined David Stejbach ("Stejbach") from competing against ]oyner
Sportsmedicine Institute (".loyner") in East Stroudsburg through March 9,
2000. We affirm.
On July 3, 1995, Stejbach began his employment with ]oyner's
Harrisburg branch as a staff physical'therapist. Beginning May 15, 1996,
Stejbach was employed as a physical therapist and site administrator at
Joyner's East Stroudsburg facility. At that time, Stejbach and ]oyner
entered into an employment agreement that contained a non-competition
J. A42012/00
prohibition. As part of this prohibition, Stejbach agreed that during the
duration of his employment with .loyner, and for a two-year period following
his termination of. employment, he would not compete with .loyner within a
ten-mile radius of the East Stroudsburg site. Buzzard, a hand specialist at
the East Stroudsburg site who was hired on September 4, 1997, had a
similar non-competition clause in her employment contract, but the time
limitation was one year in duration. Both Stejbach and Buzzard agreed not
to solicit loyner's employees following the termination of their employment.
On March 9, :L998, Novacare Outpatient Rehabilitation East purchased
all of .loyner's stock. Novacare Outpatient Rehabilitation East was a wholly
owned subsidiary of Novacare, :[nc. (Hereinafter Novacare Outpatient
Rehabilitation East and Novacare, ]:nc. will be ~collectively referred to as
"Novacare.") As a result of the stock purchase, .loyner became a wholly
owned subsidiary of Novacare. ]oyner's employees received a new benefits
package from Novacare, which changed vacation time, 401K retirement plan
and educational benefits. Additionally, Novacare notified Stejbach of the
change in his salary in that he would no longer receive merit-based salary
increases as he had under .loyner and that his salary was capped. Also with
the issue of salary, all .loyner employees would receive their paychecks from
Novacare Employee Services, ]:nc.
On ,luly :[0, 1999, Stejbach tendered his resignation effective August
:LO, :L999, and notified his regional director that he would be joining Pocono
J. A42012/00
Orthopedics, a group of East Stroudsburg physicians who planned to open a
physical therapy component to their practice. Buzzard also tendered her
resignation effective the same day and indicated that she, tool would be
going to work for Pocono Orthopedics.
On August :[:[, 1999, .loyner filed a motion for a preliminary injunction
against Stejbach and Buzzard to prevent them from working for Pocono
Orthopedics, a company in direct competition with Joyner and within the
ten-mile non-compete radius of Joyner's East Stroudsburg site.z Following a
hearing on August 23, :t999, the lower court entered an order which
preliminarily enjoined Stejbach and Buzzard "from violating the provisions of
their employment contracts by accepting employment with Pocono
Orthopedic Consultants."
Following a hearing on September 8, 1999, the lower court issued an
opinion that stated Novacare's purchase of .loyner's stock effectively
terminated the employment contracts between .loyner and its employees
Stejbach and Buzzard. The lower court found that Stejbach and Buzzard
were bound by the non-competition prohibition from the date of the stock
purchase. The lower court then issued a decree nisi that dissolved the
preliminary, injunction against Buzzard, because the one-year prohibition
period had expired, and made the preliminary injunction permanent as to
Ste,ibach through March 9, 2000. This timely appeal followed.
-3-
]. A42012/00
.loyner now raises the following issues on appeal: (:1) Did the court
commit an error of law by holding that an employment agreement
containing a restrictive covenant was terminated by a sale of an
employer/corporation's stock where the employer remained the same
corporate entity, in a legal and practical sense, after the stock acquisition;
and (2) Did the court err when it determined that an employee's period of
non-competition under an employment agreement began on the date of an
acquisition of the emploYer/corporation's stock as opposed to the date when
the employee actually stopped working for the employer? See Appellant's
Brief, at 3.
Our scope of review on an appeal from a final decree upholding the
grant of a permanent injunctiOn is limited. We are bound to accept the
chancellor's findings of fact and accord them the weight of a jury verdict
where supported by competent evidence. We are not, however, bound by
conclusions drawn from those facts or by legal conclusions and may reverse
for abuse of discretion or error of law. See Den-TaI-Ezt Znc. v. Siemens
Capital Corporation,, 566 A.2d :1214 (Pa. Super. 1990).
In Pennsylvania restrictive covenants are enforceable if
they are incident to an employment relationship between the
parties, the restrictions imposed by the covenant are reasonably
necessary for the protection of the employer, and the restrictions
imposed are 'reasonably limited in duration and geographic
extent, hforgan's Home Equipment Corp. v. Martucci, 390
Pa. 618, 136 A.2d 838 (1957); $ohn G. Bryant Co. v. Sling
~ Pocono Orthopedic Consultants was in fact located directly across the
street from .loyner's East Stroudsburg office.
4
J. A42012/00
Testing & Repair, fnc., 471 Pa. 1, 369 A.2d 1164 (1977).
However, when fashioning an injunction to enforce a restrictive
covenant, trial courts have broad powers to modify the
restrictions imposed on the former employee to include only
those restrictions reasonably necessary to protect the employer.
l~lorgan's Home Equipment Corp., supra. This is so because
restrictive covenants constitute a restraint on the employee's
trade, and are strictly construed against the employer. See
Jacobson & Co. v. Znternational Environment Corp., 427
Pa. 439, 235 A.2d 612 (1967). As a result, in determining
whether to enforce a post-employment restrictive covenant, we
must balance the interest the employer seeks to protect against
the important interest of the employee in being able to earn a
living in his chosen profession. ThermoGuard, Inc. v.
Cochran, 408 Pa. Super. 54, 596 A.2d 188 (1991).
AII-Pak, Inc. v. Johnston, 694 A.2d 347, 350-51 (Pa. Super. 1997).
First, we note that the reasonableness of the non-competition
prohibition is not at issue. See Trial Court Opinic~n, :[1/30/99, at 4 (trial
court stating, "We begin our legal discussion by noting that none of the
Defendants contest the underlying validity of their employment agreement
or the reasonableness of its terms. The agreements are supported by
adequate consideration and, given the nature of the employer's business,
were reasonably necessary for their protection. [...] The spatial (ten miles)
and temporal (one year-Buzzard; two years-Stejbach) limitations would
appear to be reasonably necessary in this case.")
We will address Joyner's issues on appeal simultaneously. .loyner
contends that the trial court erred when it found that the employment
contract was terminated by the sale of ]oyner's stock to Novacare and that
-5-
J. A42012/00
the date of the stock acquisition was the start date of the non-competition
time period,
.loyner argues that stock acquisition did
contracts, including the employment contracts.
not affect any of ]oyner's
Joyner claims that the trial
court erred by imposing the concept of assignment upon a sale of corporate
stock and by finding that the stock acquisition ended Joyner's business as a
separate, distinct and viable corporate entity.
_loyner contends that a stock acquisition is different than a purchase of
assets. Joyner analogizes its stock acquisition by Novacare with a person's
stock acquisition of a company like General Motors. Specifically, Joyner
states that when a person purchases stock in General Motors, which happens
on a daily basis, the company continues to conduct business and honors its
previous contracts. We recognize that a corporation is a distinct legal entity,
separate from its shareholders, and remains separate, regardless of who are
its shareholders. See Zn re Erie Drug Co., 416 Pa. 41, 43, 204 A.2d 256,
257 (1964); McCrery v. Scioli, 485 A.2d 1170, 1175 (Pa. Super. 1984). In
the case of a wholly owned subsidiary, like 3oyner, the subsidiary and
parent-corporation may share common goals but are recognized as separate
entities. See Shared Communicatio~t$ v. Bell Atla~ttic, 692 A.2d 570,
573 (Pa. Super. 1997), appeal denied, 555 Pa. 704, 723 A.2d 673 (1998).
At the permanent injunction hearing, 3oyner presented the testimony
of several witnesses, including one expert in the field of mergers and
-6-
J. A42012/00
acquisitions, to show that it had remained a separate entity after Novacare's
stock acquisition. However, the trial court found differently. It analogized
the current case with that of AII-Pak, ,~n¢.
Tn ,411-Pak, .mc., Johnston was hired by AIl-Pak .to be a sales
representative. At the time he began his employment with AIl-Pak, Johnston
entered an employment contract, which contained non-disclosure and
restrictive covenant provisions. AII-Pak entered into an asset sale
agreement with Total-Pak, THC., which included all of AII-Pak's assets,
including its name. Thereafter, Total-Pak changed its name to AIl-Pak.
Johnston continued working for the new AII-Pak until his employment was
terminated. Several months later, Johnston began working for a competitor.
The new AII-Pak filed suit against Johnston seeking an injunction to prevent
Johnston from working for a competitor. We stated:
. Strong policy considerations underlie the conclusion that
restrictive covenants are not assignable. Given that restrictive
covenants have been held to impose a 'restraint on an
employee's right to earn a livelihood, they should be construed
narrowly; and, absent an explicit assignability provision, courts
should be hesitant to read one into the contract. Moreover, the
employer, as drafter of the employment contract, is already in
the best position to include an assignment clause within the
terms of the employment contract. Similarly, a successor
employer is free to negotiate new employment contracts with
the employees.
AII-Pak~ ~Tnc., 694 A.2d at 351.
this case, the trial court found that the employment contract did not
contain an assignment clause and neither the new or former employer
-7-
]. A42012/00
attempted to obtain one. The trial court then examined the relationship
between the employee and the new employer. The trial court stated that
the strong policy considerations found in Ali-Palr, T_nc., prevent an employer
from treating an employee like a chattel to be conveyed to a successor firm
without the employee's consent. The trial court held that Novacare's stock
acquisition effectively terminated the employment contract because _]oyner's
existence as a corporation was merely a shell. Once Novacare purchased
]oyner's stock, Novacare changed the employee benefits, conducted the
payroll and was listed as employer on the employee's W-2 forms. 2
The trial court concluded that, although terminated from .loyner,
Stejbach and Buzzard were still obligated under the non-competition
prohibitiOn to .]oyner. We agree. Under the terms of the employment
contract, the non-competition prohibition survived the termination of
Stejbach's. and Buzzard's employment regardless of the reason. Thus, the
trial court concluded that Stejbach's non-compete prohibition was effective
for two years, i.e., from March 9, :[998 to March 9, 2000, and Buzzard's
non-compete prohibition was effective for two years, i.e., from March 9,
:[998 to March 9, 1999. Therefore, Buzzard was no longer bound by the
non-competition agreement.
2 The trial court found because of NovaCare's control of the employees after
the stock acquisition, there was little distinction between the asset sale in
AIl-Pak¢ Inc., and the stock acquisition in this case. ];t viewed "this as a
distinction without a difference." Trial Court Opinion, :[:[/30/99 at 7.
-8-
]. A42012/00
Finally, we must determine whether it was unreasonable as a matter
of law to permit the employer to retain unfettered control over an employee
once the employment had been terminated. Tn Insulation Corp. of
America v. Brobston, 667 A.2d 729 (Pa. Super. 1995), we held that the
fact that an employee who was terminated by the employer rather than
terminated by quitting voluntarily was an important factor when considering
the enforceability of a restrictive covenant. Tn this case, however, we found
that the employment contract ended when Novacare purchased ]oyner's
stock. Unlike the employee in Insulation Corp. of America, ]oyner or
Novacare did not terminate Stejbach's employment. After the end of the
employment contract, Stejbach remained employed at Novacare. Therefore,
he was a valued employee after the employment contract ended, and
.loyner, as a subsidiary of Novacare, had a reasonable interest in enforcing
the non-competition prohibition? Therefore, the reason for ending the
employment contract did not affect the reasonableness of the enforceability
of the non-competition agreement.
3 in Insulation Corp. of America, we stated that the employer who fires
an employee for failing to promote the employer's business deems the
employee worthless. We then held that under such circumstances, it is
unreasonable to permit the employer too retain unfettered control Via the
non-competition prohibition over an employee it has deemed worthless.
However, we must keep in mind that reasonableness is determined on a
case-by-case basis. See Sacob$on & Co., 427 Pa. 439, 235 A.2d 612
(1967).
9
3. A42012/00
Tn conclusion, we find that the trial court did not error in determining
that 3oyner was not Stejbach's and Buzzard's employer as of Novacare's
stock acquisition of .loyner and that the date of the stock acquisition was the
date of the termination of Stejbach's and Buzzard's employment contracts.
Accordingly, we affirm?
Final decree affirmed.
Pre
Date:
4 We note that neither Stejbach nor Buzzard filed appellee briefs on their
behalf.
- 10-
CERTIFICATE OF SERVICE
I certify that I Am this day serving a copy of the foregoing document
upon the person(s) and in the manner indicated below, which service satisfies the
requirements of the Federal Rules of Civil Procedure, by depositing a copy of same in
the United States Mall, Harrisburg, Pennsylvania, with first-class postage prepaid, as
follows:
DATED: May 2, 2002
Bridget E. Montgomery, Esquire
Eckert, Seamans, Cherin & Mellott LLC
213 Market Street
8the Floor
Harrisburg, PA 17101
[Attorneys for Plaintiffs]
METTE~VANS & WOODSIDE
Supreme Cd.I.D. #28960 -
DANIEL L. SULLIVAN, ESQUIRE
Supreme Court I.D. #34548
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendant Jose Dominguez,
P.T.
:292506_
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
GREGORY E. BLACK and
CHRISTY A. BLACK,
Appellants
ZONING HEARING BOARD OF
UPPER ALLEN TOWNSHIP,
Appellee
Vo
EDWARD E. STATHAS and
MARILYN A. STATHAS,
Intervenors
No.: 02-1814 CivilTenn
1. State matter to be argued: Appellants' Land Use Appeal
2. Counsel who will argue the case:
(a) for appellant:
Charles E. Zaleski, Esquire
Reager & Adler, P.C.
2331 Market Street
Camp Hill, PA 17011-4642
717-763-1383
Suprerre Ct. I.D. No. 18043
Dennis J. Shatto, Esquire
Cleckner & Fearen
119 Locust Street
P.O. Box 11847
Harrisburg, PA 17108-1847
Counsel for Appellants,
Gregory E. Black and Christy A. Black
(b) for Appellee:
Dusan Bratic, Esquire
101 U.S. Route 15 South
Dillsburg, PA 17019
(717)-236-3010
Counsel for Appellee,
Zoning Hearing Board of Upper Allen Township
(c) for Intervenor:
Keith O. Brenneman, Esquire
44 West Main Street
Mechanicsburg, PA 17055
(717) 697-8528
Counsel for Intervenor, Edward E. Stathas and
Marilyn A. Stathas
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: July 24, 2002.
Charles E. Zaleski
Supreme Ct. I.D. No. 18043
2331 Market Street
Camp Hill, PA 17011-4642
Attorney for Appellants,
Gregory E. Black and Christy A. Black
CERTIFICATE OF SERVICE
I hereby certify that on the date set forth below a true and correct copy of the
Praecipe to List Case for Argument was served on the following individuals via United
States First Class Mail, postage prepaid as follows:
Dusan Bratic, Esquire
101 U.S. Route 15 South
Dillsburg, PA 17019
Keith O. Brenneman, Esquire
SNELBAKER, BRENNEMAN & SPARE, P.C.
44 West Main Street
P.O. Box 318
Mechanicsburg, PA 17055
Dennis J. Shatto, Esquire
Cleckner & Fearen
119 Locust Street
P.O. Box 11847
Harrisburg, PA 17108-1847
Dated:
REAGER & ADLER, PC
Charles E. Zaleski, Esq.
MARRm ANNE CASSIDY and
RICHARD W. CASSIDY,
Plaintiffs
ADIN KEN-ES, LARRY V. NEIDLINGER,
JASON KUTULAKIS, and
JOANNE KUTULAKIS,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA
NO. 02-1846 Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PLAINTIFFS' RESPONSE TO NEW MATTER
OF DEFENDANT~ LARRY V. NEIDLINGER
57. The allegations require no response. To the extent that any response is required,
said allegations are denied. Plaintiffs reiterate each and every allegation of the Complaint as if
set forth herein at length.
58. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs' Complaint
against Defendant Larry V. Neidlinger states a cause of action upon which relief can be granted.
59. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs' Complaint
was filed in a timely manner.
60. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. There have been no other
claims filed by Plaintiffs or litigation arising out of the facts or circumstances of this case.
Neither doctrine of res judicata or collateral estoppel applies.
61. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs reiterate and
reaver each and every allegation of their Complaint as if set forth herein. Defendant Neidlinger's
conduct and omissions caused or contributed to the cause of Plaintiffs' injuries. Furthermore,
Defendant Neidlinger had the responsibility and fight of control over Defendant Kenes and was
the employee, agent, or servant of Mr. and Mrs. Kutulakis. Furthem~ore, Defendant Neidlinger
knew or should have known of the dangerous condition that caused Plaintiffs' accident as set
forth in the Complaint.
62. The allegations constitute a conclusion of law to which no response is required.
To the extent that any response is required, said allegations are denied. Defendant Neidlinger
hired Defendant Kenes to design and build the steps that caused Plaintiffs' accident. Plaintiffs
reiterate and reaVer each and every allegation of their Complaint as if set forth herein in detail.
There was an agency, principal-agent, master-servant, or employer-employee relationship
between Defendant Neidlinger and Defendant Kenes.
63. The allegations constitute a conclusion of law to which no response is required.
To the extent that any response is required, said allegations are denied. The working relationship
between Defendant Neidlinger and Defendant Kenes existed for years. As Plaintiffs understand
this relationship, Defendant Neidlinger typically employed Defendant Kenes on various jobs.
Plaintiffs believe that Mr. and Mrs. Kutulakis hired Mr. Neidlinger to repair their home and Mr.
Neidlinger hired Mr. Kenes to design and construct the steps that caused the accident.
64. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs do not know
whether Defendant Kenes was an employee or independent contractor of Defendant Neidlinger.
They understand that Defendant Neidlinger typically hired Defendant Kenes on his projects and
that Defendant Kenes was in fact trader the supervision, direction and control or right of control
of Defendant Neidlinger.
65. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. As a matter of law and
fact, Defendant Neidlinger is liable for the acts of negligence or omissions constituting
negligence of Defendant Kenes.
66. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs reiterate and
reaver each and every allegation of their Complaint as if set forth herein at length. Plaintiffs
believe that Mr. 'and Mrs. Kutulakis hired Mr. Neidlinger to repair their home and that Mr.
Neidlinger hired Mr. Kenes to design and construct the steps that caused the accident.
Furthermore, Plaintiffs believe that all of the Defendants knew or should have known that the
steps were dangerous prior to the accident, yet no Defendant warned Plaintiffs of the dangers as
set forth in Plaintiffs' Complaint. Furthermore, all Defendants, including Defendant Neidlinger,
are responsible for Plaintiffs' injuries and damages as set forth in their Complaint for reasons
alleged herein.
67. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs were not
employees, agents, servants, workmen or representatives of Defendants, Jason and Joanne
Kutulakis, performing services and/or providing assistance, at the request of the Mr. and Mrs.
Kutulakis, on the construction site when the accident occurred. Plaintiffs were guests at the
Kutulakis' home.
68. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs were not
retained by Mr. and Mrs. Kutulakis and were not acting at the request of or pursuant to the
direction of and on behalf of Mr. and Mrs. Kutulakis at their home at the time of the accident.
To the contrary, Plaintiffs were guests at the Kutulakis' home.
69. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Defendant Neidlinger
was negligent in selecting Mr. Kenes to design and build the steps that caused the accident. He
did not act reasonably, prudently or with due care. He was likewise negligent in recommending
Defendant Kenes to Mr. and Mrs. Kutulakis or at least was negligent in failing to repair the
dangerous stairs designed and constructed by Defendant Kenes or make appropriate warnings
that could have been relayed to or observed by Plaintiffs. Again, Plaintiffs reiterate and reaver
each and every allegation of their Complaint as if set forth herein against Defendant Neidlinger.
70. The allegations constitute conclusions of law to which no response is required.
Plaintiffs assumed no risk of injury or damage. To the contrary, they had no indication of the
danger until after'this tragic accident.
71. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs were not
negligent.
72. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs' claims are not
barred by the doctrine of superceding and/or intervening cause.
4
73. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs have
reasonably and appropriately mitigated their damages.
74. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs reiterate and
rearer each and every allegation of the Complaint as if set forth herein at length. Defendant
Neidlinger breeched his duties and responsibilities to Mr. and Mrs. Kutulakis and to Plaintiffs.
75. The allegations constitute conclusions of law to which no response is required.
Plaintiffs reiterate and rearer each and every allegation of their Complaint as if set forth herein at
length. Defendant Neidlinger breeched his duties and responsibilities to the Plaintiffs.
76. The allegations constitute conclusions of law to which no response is required.
To the extent that any response is required, said allegations are denied. Plaintiffs believe and
therefore aver that Mr. and Mrs. Kutulakis are neither homebuilders nor repairers. They believe,
and therefore aver that Mr. and Mrs. Kutulakis hired Defendant Neidlinger to restore their home
and that Defendant Neidlinger hired Defendant Kenes to design and construct the steps that
caused the accident. Accordingly, all Defendants are responsible onto Plaintiffs for reasons set
forth in Plaintiffs' Complaint.
Respectfully submitted,
N~;S~L~ D~ ~ &'WI~N~ SKI
Mrcha~2. Sav~k,, Esquire'
I.D. No. 58803~ ,
2040 Linglestowh4 ~oad, Suit~03
H~sb~g, PA 17110
717/541-9205
Co~sel for Plaimiffs
LLP
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS
I, MICHAEL J. NAVITSKY, being duly sworn according to law, depose and say that I
am counsel for Plaintiffs, Marrie Anne Cassidy and Richard W. Cassidy, and I am authorized to
make this affidavit on behalf of said Plaintiffs, and verify that the facts set forth in the foregoing
Response to New Matter are tree and correct to the best of my knowledge, information and
belief, or are tree and correct based on the information obtained from Plaintiffs.
Sworn and subscribed
before me this ~&day of
~ ,2002.
Notary Public
I NOTARIAL SEAL I
LOIS F... STAUFFER, NOTARY PUBLIC I
CI1Y OF HARRISBURG, DAUPHIN COUNTY I
M'Y .C?AMISSION EXPIRES MARCH 28, 2005l
CERTIFICATE OF SERVICE
I, Lois E. Stauffer, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do
hereby certify that I am this 29th day of May, 2002 by serving a true and correct copy of
Plaintiffs' Response to Defendant Neidlinger's Answer and New Matter upon all counsel of
record via postage prepaid first class United State mail addressed as follows:
Robert A. Lerman, Esquire
Griffith, Strickler, Lerman,
Solymos & Calkins
110 South Northern Way
York, PA 17402-373
Counsel for Defendant Neidlinger
Thomas J. Williams, Esquire
Martson, Deardorff, Williams & Otto
Ten East High Street
Carlisle, PA 17013
Counsel for Defendant Kenes
John Flounlacker, Esquire
Thomas, Thomas & Haler LLP
305 North Front Street
Sixth Floor
P.O. Box 999
Harrisburg, PA 17108
Counsel for Defendants Kutulakis
Lois E. Stauffer
GREGORY E. BLACK
And CHRISTY A. BLACK
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V. :
ZONING HEARING : NO. 2002-1814 CIVIL TERM
BOARD OF UPPER :
ALLEN TOWNSHIP :
IN RE: APPELLANT'S LAND USE APPEAL
BEFORE BAYLEY, GUIDO~ JJ.
INTERIM ORDER OF COURT
AND NOW, this ~0 ~"4mday of AUGUST, 2002, after review of the
"Reconsideration Decision" we are unclear as to the law and facts relied upon by the
Board in support of its action. The 208 "Findings of Fact" merely summarize the
testimony and evidence presented to the Board without making any determination as to
credibility, weight or relevancy. Without such determination, meaningful review is
impossible. Accordingly, this matter is remanded to the Board for a succinct statement of
the law and facts upon which it relied to deny Appellant's request for a special exception.
Said findings of fact and conclusions of law shall bc filed of record and forwarded to this
Court within sixty (60) days.
· Dennis J. Shatto, Esquire
/'Dusan Bratic, Esquire
/ Keith O. Brenneman, Esquire
/Charles E.
Edward E. Guido, J.
Zaleski, Esquire
0CT-!5-2002 16:~9 71743292.20
717432~22'~
P.182/04
ZONING I-~E&RING :
BOARD OF UPPER :
ALL~N TOWNSHIP :
IN THE COURT OF COMMON P].~AS OF
CUM~ERr AN'D COUNTY, PENNSYLVANIA
NO. 2002-i~f4 CIVIL TEP, M
A S.t~ecial F. xoeption applicant 1~,_~ both the duty of presentation of the evidence and
banien o£pers-~on with r~pect to compliance with objective standai-a~ set forth in the
ordinance far thole-ant of the p~ilcular Sp~ial Exception. Bray v. Zoning H~n?
Board of A4i,,~t,~ 48 P~ Cmwlth 523, 410 A. lid 909 (1980).
Objector~ have both the duty ofpreseming ovid~mce and the burden of persuad/ng thc fact
~mder that the proposed use will bo detrimenmI to the more gen/aal or non-objectivc
public inmr~ standard~ such as those specifically recit~xi in Section 245.127(3)C[ 1]
through l'gJ. See Cherbel R~.~IW Como~tir,n v. Zimin:, H~-k.~, Bg.~_r,q. 4 Pa Cmwlth
137, 285 A~ 2d 905 (1972), D~ FIoolin~ Comr~any,
Zoning Hes~ne Board ofAdju._,~m.qi' 4 Pa. Cmwlth 341,285 A 2d. 538 (1971').
TheBoard finds that the Applicant did not sustain its burd~ ofpmofundm-
§245.127(2)A office U~er Allen Tow~,hlp Zoning Ordinance re~arding meeting tho
general standards affecting thepublic safety of the msidonts of Upper Allen Township.
The Board finds that th~ amotmt of trips proposext in and out of the Applicants prop~o~,
iR th~ morning and at the end of the day/s unsafe. The traffic creal~d by the Appl/cant's
use creates a h~m.d to motorists on l~.oute 114, ~ would ca~e a hazard to tra.~c
b~i,~g up behind s~__.ool buse~ which load and ~mlosd in the nearby zone. ('Notes of
Testimony far Heating of I 1/14/01, pagcs 393-409.)
The Zoning Hear/ug Board ~nds th~ thc objeX, ors have met their burden of proof under
§245.127i3)C[ l.,] of the Upper All~n T ownshi~ Zoning Ordinance in establishing that the
project would c'r=ate substantial tra/~ connexion in the ar~ The Applicant tes~d
that ~he :~mount of trips ~ day into the day would be over 100 per day. That al0~g with
th~ ex/sting tra~c on Route 114 would substmtiall~y increase oong~fion. CHote~ of
Testimony for Hem/nE of 10/11/01, page 104.)
The Zoning H~cr/ng Board finds that the objectors have m~t their burden of proof trader
§245,127(3)[71 of the Upper All~n Township Zoning Orain.,,~ and establiahod that the
~ and the location of the point for in~ress and egress to ~hc AppUcant's lot is unsafc
due ~o i~ proximi~ to the adjacent driveway of Bdward and Marilya Staths~. The
western tad/us of the Ap.~licant's driveway encroache~ and tapers into the driveway of
Edward and Marii,~n Stathas, caus/ng U'affic flu~ is related to the Appliemt's
and usc to truss over and onto the res/dcntial driveway of N.,dward snd l~u-ilyn Stath~.
The Zoning Hearing Board finds that the testimony of Randall Wolf, Jr. a c~dfied
general roal estate appraiser lic~sed in the Commonwealth of P~n~ylvania to be more
or. chile, and as such th~ Boa~L finds that the Applicant'sj~rojcct as proposed would
QCT-&5-2002 &6:39 ?174~29220 ' '
adve~ely aff~t the property value of the property owned by ~.dward ~nd Marily~ Stathaz
by dec,e&sing its walu~ §24~.127($)[8]. If Applicant's proj~t is built as s~ forth in the
approwd deve]opm~nt plan, the pmj~-I would ~ely affect the properly owlled by
Edward and Marilyn S~ath~ by a ranl~ of b~wee~ $34,800 and $46,400, with th~
l~£oger~y havin~ a~ unat~czed value of $290,000. (Not~-s ofhearinl~ t~limo~y dated
10/11/01, page 150.)
Wherefore we the und~rsil~n~l rem~rm that the crifz~ia for the grant of the Spe~ial
Exertion has noi bell m~t by the Applioant due to the fa~s and ~ndin~s that ~o ~
set forth hvrein.
TOTAL P.04
GREGORY E. BLACK
AND CHRISTY A. BLACK
V.
ZONING HEARING BOARD
OF UPPER ALLEN TOWNSHIP
: IN THE COURT O17 COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
;
: NO. 2002-1814 CIVIL
:
: CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 7TM day of NOVEMBER, 2002, it appearing to the Court that
the Zoning Heating Board of Upper Allen Township has filed a Supplemental Opinion as
directed by our interim order dated August 20, 2002, either party may list this matter for
Argument in accordance with the Local Rules of Court.
t/Charles E. Zaleski, Esquire
2331 Market Street
Camp Hill, Pa. 17011
Edward E. Guido, J.
v/Dennis Shatto, Esquire
111 Locust Street
Harrisburg, Pa. 17101
/~Dusan Bratic, Esquire
101 U.S. Route 15 South
Dillsburg, Pa. 17019
Keith O. Brenneman, Esquire
44 West Main Street
Mechanicsburg, Pa. 17055
:sld