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HomeMy WebLinkAbout02-2942WAYNE F, SHADE Attorney at Law 53 West Pomfmt Slreet Carlisle, Pennsylvania 17013 PHEASANT RUN CONDOMINIUM ASSOCIATION by James E. Pedrick, Trustee ad Litem, Plaintiff PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. EQUITY 2002 COMPLAINT FOR INJUNCTIVE RELIEF PlaintiffPHEASANT RUN CONDOMINIUM ASSOCIATION is a Pennsylvania unincorporated association (hereinafter sometimes "the Association") by its Trustee ad Litetn and President of the Council thereof, James E. Pedrick, with offices at 1824 Sterretts Gap Avenue, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendants PATRICK E. KRUSE and ELLEN M. KRUSE, are adult individuals and husband and wife whose last known address is 26 North Street, #206, Douglas, Massachusetts 01516. Defendant MICHELLE KRUSE, is an adult individual and believed to be the daughter and tenant of Defendants Patrick E. Kruse and Ellen M. Kruse whose last PHEASANT RUN CONDOMINIUM ASSOCIATION by James E. Pedrick Trustee ad Litem, Plaintiff PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO 2942 EQUITY 2002 PRAECIPE FOR ENTRY OF APPEARANCE TO: The Prothonotary Please enter my appearance on behalf of the Defendants in this case. Date: July 11, 2002 5300 Derry Street Harrisburg, PA 17111 (717) 561-4480 CERTIFICATE OF SERVICE I, Richard B. Swartz, Esquire, attorney for Defendants, hereby certify that I have served a tree and correct copy of the Praecipe for Entry of Appearance upon counsel for Plaintiff by facsimile and UPS Overnight on July 11, 2002, addressed as follows: Wayne F. Shade, Esquire 53 West Pomfret Street Carlisle, PA 17013 PHEASANT RUN CONDOMINIUM ASSOCIATION by James E. Pedrick, Trustee ad Litem, Plaintiff PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : CIVIL ACTION- EQUITY : : NO. 02-2942 EQUITY TERM ORDER___OF COURT AND NOW, this 21 st day of June, 2002, upon consideration of Plaintiffs request for a preliminary injunction, a hearing is scheduled for Monday, July 15, 2002, at 2:45 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Wayne F. Shade, Esq. 53 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff Patrick E. Kruse Ellen M. Kruse 26 North Street #206 Douglas, MA 01516 Defendants, Pro Se WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Petmsylvania 17013 PHEASANT RUN CONDOMINIUM ASSOCIATION by James E. Pedrick, Trustee ad Litem, Plaintiff Vo PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, Defendants : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - EQUITY : NO.O~ ""~qEQUITY 2002 : : NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after the pleadings and Notice are served, filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the pleadings or for any other claim of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 Wayne~. Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff WAYNE F. SHADE Att~Omey at Law 53 West Pomfret Stn~et Carlisle, Pennsylvania 17013 PHEASANT RUN CONDOMINIUM ASSOCIATION by James E. Pedrick, Trustee ad Litern, Plaintiff PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. O~' EQUITY 2002 : ORDER OF COURT AND NOW, this day of June, 2002, upon consideration of the within Complaint and upon Motion of Wayne F. Shade, Esquire, attorney for Plaintiff, a Rule is issued upon Defendants to show cause why a preliminary injunction should not issue in accordance with the prayer of the Complaint. Plaintiff shall take immediate steps to serve all Defendants with a copy of this Complaint and Order. A hearing will be scheduled thereon within five (5) days after the date of service of all Defendants or within such other time as the parties may agree. It is further ordered and decreed that, upon Plaintiff's filing with the Prothonotary a bond or legal tender of the United States in the amount of Defendants will be enjoined from preventing Council members, legal counsel, architects, engineers, insurance representatives, construction contractors and maintenance employees of Plaintiff from entering Unit F214 under the provisions of the Declarations and Regulations of Pheasant Run Condominium as reasonably necessary for the evaluation and remediation of the mold problem that exists in and adjacent to Unit F214. By the Court, Wayne F. Shade, Esquire Attorney for Plaintiff WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 PHEASANT RUN CONDOMINIUM ASSOCIATION by James E. Pedrick, Trustee ad Litetn, Plaintiff : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY : NO. O EQUITY 2002 PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, Defendants ORDER OF COURT AND NOW, this day of _, 2002, after hearing, the Court finds that Plaintiff's right to relief is clear, that the injury to Plaintiff in the absence of injunctive relief will be irreparable and incapable of compensation by the award of monetary damages and that the injury to Plaintiff and the members of Plaintiff in the refusal of injunctive relief would be far greater than the hardship to Defendants in imposition of injunctive relief. Therefore, upon motion of Wayne F. Shade, Esquire, attorney for Plaintiff, the preliminary injunction issued herein is hereby continued upon the security posted therefor and Defendants are enjoined from preventing Council members, legal counsel, architects, engineers, insurance representatives, construction contractors and maintenance employees of Plaintiff from entering Unit F214 under the provisions of the Declarations and Regulations of Pheasant Run Condominium as reasonably necessary for the evaluation and remediation of the mold problem that exists in and adjacent to Unit F214. By the Court, Wayne F. Shade, Esquire Attorney for Plaintiff WAYNE F. SHADE At~omey at Law 53 West Pomfr~t Street Carlisle, Pennsylvania 17013 PHEASANT RUN CONDOMINIUM ASSOCIATION by James E. Pedrick, Trustee ad Litem, Plaintiff PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - EQUITY . NO. O EQUITY 2002 COMPLAINT FOR INJUNCTIVE RELIEF 1. Plaintiff PHEASANT RUN CONDOMINIUM ASSOCIATION is a Pennsylvania unincorporated association (hereinafter sometimes "the Association") by its Trustee ad Litem and President of the Council thereof, James E. Pedrick, with offices at 1824 Sterretts Gap Avenue, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendants PATRICK E. KRUSE and ELLEN M. KRUSE, are adult individuals and husband and wife xvhose last known address is 26 North Street, #206, Douglas, Massachusetts 01516. 3. Defendant MICItELLE KRUSE, is an adult individual and believed to be the daughter and tenant of Defendants Patrick E. Kruse and Ellen M. Kruse whose last WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania known address is her place of employment, Warranty Corporation, 5300 Dewy Street, Harrisburg, Dauphin County, Pennsylvania 17111. 4. On or about September 24, 1980, the Declaration of Condominium for Pheasant Run Condominiums (hereinafter "the Declaration") was recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Miscellaneous Book 258, Page 6. 5. On or about September 24, 1980, the Pheasant Run Condominium Association Code of Regulations (hereinafter "the Regulations") was recorded in the aforesaid Office of the Recorder of Deeds in Miscellaneous Book 258, Page 25. 6. On June 21, 1991, Defendants Patrick E. Kruse and Ellen M. Kruse purchased Unit F214 of Building V of Pheasant Run Condominium, known and numbered as Unit F214, 142 Bradley Drive, Carlisle, Cumberland County, Pennsylvania. 7. At the time of purchase of Unit F214, Defendants Patrick E. Kruse and Ellen M. Kruse received copies of the Declaration and the Regulations. 8. Under Article X[V, Defendants and their tenants, if any, are legally bound by the ~rovisions of the Declaration and Regulations. -2- WAYNE F. SHADE Carlisle, Pennsylvania The Council of the Association is empowered under Article IX of the Declaration to provide for the operation, care, up-keep and maintenance of the Condominium Property and to enforce the Regulations. The Council is empowered under §IV 2. (a) of the Regulations to provide for the care, upkeep, maintenance, renovation and replacement of the common elements and the limited common elements. 11. Under Article IV (2)(ii) of the Declaration, the walls of each unit are part of the common elements where the exterior boundary of a unit is defined as the interior unfinished surfaces of the ceiling and perimeter walls. 12. Under Article X! (6)(i) of the Declaration, the units are made subject to an easement in favor of the Council or its designee for inspection of the units and for inspection of the condition of the common elements that are accessible from a unit for correction of casualties to the common elements and for such other purposes as may be reasonably required to carry out the duties of the Council. 13. Under Article X! (6)(iii) of the Declaration, the units are made subject to a blanket easement in favor of the Council, its officers, agents and employees to enter upon the -3- WAYNE F. SHADE Attorney at Law 53 West Pomfret St~et Carlisle, Pennsylvania 17013 property or any part thereof for repair and maintenance of the common elements, including the limited common elements. 14. In August of 2001, Defendants registered a complaint of toxic black mold in their unit. 15. Preliminary investigation confirmed the existence of toxic black mold in Defendants' unit and in the common elements immediately adjacent to Defendants' unit. 16. Defendants did permit Plaintiff access to Defendants' unit for microbial inspection on or about November 8, 2001. 17. The mold was examined by experts for Plaintiff and Defendants. 18. Presence of various viable fungi was confirmed, but the experts who have examined the mold to date have been unable to determine and specify, within reasonable scientific certainty, the source of the moisture that causes the mold. 19. The source of the moisture could be from outside Unit F214 through the common elements or from inside Unit F214 to the common elements. -4- WAYNE F. SHADE A~om*y at Law 20. Determination of the source of the moisture that causes the mold is important to determination of insurance coverage issues and of what remedial measures are necessary to eliminate the sources of the moisture and of who has the authority and duty to pursue those measures. 21. Plaintiff's consulting engineer has recommended that the issue of the point of origin of the mold problem necessitates further examination by a registered architect in conjunction with the consulting engineer, which further examination can only be obtained by gaining access to Defendants' unit. 22. PlaintiW s consulting engineer has recommended that Plaintiff engage Robert J. Illo, AIA, P.E., of Architecture & Engineering Innovations, 971 Corvair Road, Lancaster, Pennsylvania 17601, as the registered architect to evaluate the mold problem and make recommendations for rcmediation. 23. Complete visual inspection will require removal of some wall and ceiling materials. 24. The common elements immediately adjacent to Defendants' unit where the mold is located are accessible only by gaining entry to Defendants' unit. -5- WAYNE F. SF~DE Altomey at Law 53 West Pomfret Sl~eet Carlisle, Pennsylvania 25. Plaintiffhas repeatedly requested permission to enter Defendants' unit for further inspection since September of 2001, but Defendants refuse to grant such permission without a court order while, at the same time, demanding remediafion of the mold ~roblem. 26. Potential health hazards associated with indoor air quality as evidenced by the existence of mold, include various symptoms of headaches, fatigue, eye irritation, rashes, diarrhea, respiratory illness and may include fatal conditions such as Legionnaires' disease. 27. As a result of the advice of the experts who have examined the mold problem as to the potential health hazards presented by the existence of the mold in and at Defendants' unit, Defendants' unit bas been vacant since at least January of 2002. 28. In the absence of the consent of Defendants for further entry into Unit F214, Plaintiffhas expended thousands of dollars in examining units above and below Unit F214 in unsuccessful altempts to determine whether the mold has originated in Defendants' unit and migrated to the common elements or has originated in the common elements and migrated to Defendants' unit. -6- WAYNE F. SI~DE 29. Where Defendants' consulting engineer has advised evacuation of Defendants' unit, Plaintiff avers that the imminent threats, to the health, safety and general welfare of the owners of other nearby units from the unresolved mold problems that are immediately adjacent to the unit of Defendants, constitute casualties to the common elements and emergency conditions that are such that there is no adequate remedy at law. 30. Units that are immediately adjacent to Unit F214 are occupied by an elderly woman and a family with small children, both of which present high risk situations for illness from indoor fungi. 31. Plaintiff's experts have advised Plaintiffthat delays in inspection and remediation of the sources of the moisture that is causing the mold will present the risk of serious illness to owners of nearby units and the risk of serious diminution in the property values of the nearby units. 32. Plaintiff does not have a key to Defendants' unit, so entry without Defendants' consent would require furced entry. 33. Because the rights to which Plaintiff is clearly entitled involve access to real estate, Plaintiff's rights are unique; and any remedy at law would be inadequate and Incomplete. WAYNE F. S~L~DE Atiomey at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 34. Where Defendants refuse to consent to entry by Plaintiff and its representatives for further inspection, Plaintiff avers that an Order of Court confirming the right of Plaintiff and its representatives under the provisions of the Declaration and Regulations to entry and re-entry by Plaintiff and its representatives as reasonably necessary to the evaluation and remediation of the mold problem would avoid a multiplicity of suits. 35. Plaintiff believes and therefore avers that the rights of Plaintiff herein are manifest, that Plaintiff's right to relief is clear, that the injury to Plaintiff and members of the Association, other than Defendants, in the absence of the relief requested will be Irreparable and incapable of compensation by the award of monetary damages. 36. Where the last known address of Defendants Patrick E. Kruse and Ellen M. Kruse is in Massachusetts, Plaintiff believes that it will be tmable to serve Defendants within five days of the date of an Order herein. 37. Plaintiffis unaware as to who will be representing Defendants in this matter. 38. Where Defendants have vacated Unit F214 pending resolution of the mold }roblem, Plaintiff avers that Defendants would not be prejudiced by the scheduling ora leafing trader the provisions ofPa. R.Civ. P.R. 1531(b) within five days after service of this Complaint upon all Defendants. -8- WAYNE F. SHADE Aaomey at Law 53 West Porn fret Street Carlisle, Pennsylvania 39. The relief requested herein is the minimal relief necessary to enable the Council to discharge its maintenance obligations under the Declaration and Regulations and would involve no material interference with the interests of Defendants where Defendants' unit is presently vacant. WHEREFORE, Plaintiff respectfully requests that your Honorable Court order confirmation that the Council members, legal counsel, architects, engineers, insurance representatives, construction contractors and maintenance employees of Plaintiff may lawfully enter Defendants' unit under the provisions of the Declaration and Regulations as reasonably necessary for the evaluation and remediation of the mold problem that exists in and adjacent to Defendants' unit and that your Honorable Court award attorney fees in favor of Plaintiff and against Defendants, jointly and severally, for enforcement of Plaintiff s rights under the Declarations and Regulations under the authority of 68 Pa. C.S. § 3315 (a) and (f). Wayne I~. Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff -9- WAYNE F. SHADE Attorney at Law 53 West Pomf~et Street Carlisle, Pennsylvania 17013 I, JAMES E. PEDRICK, verify that I am the President of the council of Pheasant Rrm Condominium Association, that I make this verification on its behalf being authorized to do so and that the statements made in the foregoing document are tree and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: June 14, 2002 PHEASANT RUN CONDOMINIUM ASSOCIATION ames E. Pedrick, President ~'>c: .-? >_- ._. WAYNE F. SHADE Attorney at Law known address is her place of employment, Warranty Corporation, 5300 Derry Street, Harrisburg, Dauphin County, Pennsylvania 1711 I. 4. On or about September 24, 1980, the Declaration of Condominium for Pheasant Run Condominiums (hereinafter "the Declaration") was recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Miscellaneous Book 258, Page 6. 5. On or about September 24, 1980, the Pheasant Run Condominium Association Code of Regulations (hereinafter "the Regulations") was recorded in the aforesaid Office of the Recorder of Deeds in Miscellaneous Book 258, Page 25. 6. On June 21, 1991, Defendants Patrick E. Kruse and Ellen M. Kruse purchased Unit F214 of Building ¥ of Pheasant Run Condominium, known and numbered as Unit F214, 142 Bradley Drive, Carlisle, Cumberland County, Pennsylvania. 7. At the time of purchase of Unit F214, Defendants Patrick E. Kruse and Ellen M. Kruse received copies of the Declaration and the Regulations. 8. Under Article XIV, Defendants and their tenants, if any, are legally bound by the ~rovisions of the Declaration and Regulations. -2- WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 PHEASANT RUN CONDOMINIUM ASSOCIATION by James E. Pedrick, Trustee ad Litem, Plaimiff PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 2942 EQUITY 2002 STIPULATION OF COUNSEL AND NOW, this 10th day of July, 2002, come Plaintiff PHEASANT RUN CONDOMINIUM ASSOCIATION and Defendants PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, by and through their respective attorneys, Wayne F. Shade, Esquire, and Richard B. Swartz, Esquire, and with regard to access to the Unit, stipulate and agree, as lbllows: Plaintiff's access to the Unit shall be as set forth and under the terms in the foregoing Order of Court. The parties agree to service of documents in this matter by facsimile transmission upon Plaintiff at 717-249-0017 and upon Defendants at 717-561-0683. It is the desire mid intention of the parties hereto that this Stipulation be entered in Court of Common Pleas of Cumberland County, Pennsylvania, and that it be endorsed by the foregoing Order of Court so as to have the full effect thereof. ayne 1~. Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff Harrisburg, Pennsylvania 17111 Telephone: 717-561-4480 Attorney for Defendants WAYNE F. SHADE Attorney at Law 53 West Pomfret SUeet Carlisle, Pennsylvania 17013 -2- WAYNE F. SHADE Attorney at Law 53 West Pomfret Slteet Carlisle, Pennsylvania 17013 PHEASANT RUN CONDOMINIUM ASSOCIATION by James E. Pedrick, Trustee ad Litern, Plaintiff Vo PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - EQUITY : NO. 2942 EQUITY 2002 ORDER OF COURT AND NOW, this 1.5 ~ day of July, 2002, Plaintiff PHEASANT RUN CONDOMINIUM ASSOCIATION and Defendants PATRICK E. KRUSE, ELLEN M. KRUSE and MICHELLE KRUSE, being represented by their independently selected private counsel, respeclively, Wayne F. Shade, Esquire, and Richard B. Swartz, Esquire, and having stipulated and agreed that Plaintiff, its Council members, legal counsel, architects, engineers, insurance representatives, construction contractors and maintenance employees, are authorized, under the provisions of the Declaration of Condominium for Pheasant Run Condominiums and the Pheasant Run Condominium Association Code of Regulations to enter into a unit for inspection of the condition of the common elements that are accessible from a unit for correction of casualties to the common elements and limited common elements, it is hereby ordered and decreed, as follows: WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 Defendants are enjoined from preventing Council members, legal counsel, architects, engineers, insurance representatives, construction contractors and maintenance employees of Plaintiff 1?om entering Unit F214 (hereinafter "the Unit") of Building V of Pheasant Run Condominium, known and numbered as Unit F214, 1420 Bradley Drive, Carlisle, Cumberland County, Pennsylvania, under the provisions of the Declarations and Regulations of Pheasant Run Condominium as reasonably necessary for the evaluation of the mold problem that exists in and adjacent to the Unit. 2. Plaintiff will replace any portions of the Unit that will be removed by Plaintiff or anyone on behalf of Plaintiff during any entry under the authority of this Order. 3. Plaintiff's obligation to replace any portions of the Unit that will be removed by Plaintiff or anyone on behalf of Plaintiff during any entry under the authority of this Order shall be within a reasonable time after completion of any remediation of the mold problem that exists in and adjacent to the Unit. 4. Plaintiff's agreement to replace any portions of the Unit that will be removed by Plaintiff or anyone on behalf of Plaintiff during any entry under the authority of this Order may not be admissible in evidence in any adversarial proceeding at any time and -2- may not be construed as an indication that the existence of the mold is the responsibility of Plaintiff or any of Plaintiff's privities. 5. Plaintiff's agreement to replace any portions of the Unit that will be removed by Plaintiff or anyone on behalf of Plaintiff during any entry under the authority of this Order, specifically and expressly excludes responsibility for removal of mold or mold residue, the determination of the responsibility for which is preserved as an issue for future resolution. Defendants shall provide Plaintiff with access to the Unit anytime on or after July 15, 2002, provided that Plaintiff provides twenty-four (24) hours' notice of Plaintiff's desire to have access to Defendants' counsel. 7. Inspections by Plaintiff hereunder will be completed within sixty (60) days of this Order. WAYNE F.: Attorney at Law 53 West Pomfre~ Carlisle, Pennsylvania 17013 -3- WAYNE F. SHADE Attorney at Law 53 West Pomf~t Street Carlisle, Pennsylvania 17013 The hearing scheduled herein for Monday, July 15, 2002, at 2:45 P.M. in Courtroom No. 1 of the Cumberland County Courthouse, Carlisle, Pennsylvania, is hereby continued generally to be rescheduled at the request of any party. Wayne F. Shade, Esquire Attorney for Plaintiff By the Court, sley Oler, J~. '~ Richard B. Swartz, Esquire Attorney for Defendants -4- WAYNE F. SHADE At~omcy at Law 53 West Pomfret Street Carlisle, Pennsylvania The Council of the Association is empowered under Article IX of the Declaration to provide for the operation, care, up-keep and maintenance of the Condominium Property and to enforce the Regulations. 10. The Council is empowered under §IV 2. (a) of the Regulations to provide for the care, upkeep, maintenance, renovation and replacement of the common elements and the limited common elements. 11. Under Article IV (2)(ii) of the Declaration, the walls of each unit are part of the common elements where the exterior boundary of a unit is defined as the interior unfinished surfaces of the ceiling and perimeter walls. 12. Under Article XI (6)(i) of the Declaration, the units are made subject to an easement in favor of the Council or its designee for inspection of the units and for inspection of the condition of the common elements that are accessible from a unit for correction of casualties to the common elements and for such other purposes as may be reasonably required to carry out the duties of the Council. 13. Under Article XI (6)(iii) of the Declaration, the units are made subject to a blanket easement in favor of the Council, its officers, agents and employees to enter upon the -3- WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 property or any part thereof for repair and maintenance of the common elements, including the limited common elements. 14. In August of 2001, Defendants registered a complaint of toxic black mold in their unit. 15. Preliminary investigation confirmed the existence of toxic black mold in Defendants' unit and in the common elements immediately adjacent to Defendants' unit. 16. Defendants did permit Plaintiff access to Defendants' unit for microbial inspection on or about November 8, 2001. 17. The mold was examined by experts for Plaintiff and Defendants. 18. Presence of various viable fungi was confirmed, but the experts who have examined the mold to date have been unable to determine and specify, within reasonable scientific certainty, the source of the moisture that causes the mold. 19. The source of the moisture could be from outside Unit F214 through the common elements or from inside Unit F214 to the common elements. -4- WAYNE F. SHADE Attorney at Law 53 West Porafret Street Carlisle, Pennsylvania 20. Determination of the source of the moisture that causes the mold is important to determination of insurance coverage issues and of what remedial measures are necessary to eliminate the sources of the moisture and of who has the authority and duty to pursue those measures. 21. Plaintiff s consulting engineer has recommended that the issue of the point of origin of the mold problem necessitates further examination by a registered architect in conjunction with the consulting engineer, which further examination can only be obtained by gaining access to Defendants' unit. 22. Plaintiff's consulting engineer has recommended that Plaintiff engage Robert J. Illo, AIA, P.E., of Architecture & Engineering Innovations, 971 Corvair Road, Lancaster, Pennsylvania 17601, as the registered architect to evaluate the mold problem and make recommendations for remediation. 23. Complete visual inspection will require removal of some wall and ceiling materials. 24. The common elements immediately adjacent to Defendants' unit where the mold is located are accessible only by gaining entry to Defendants' unit. -5- WAYNE F. SHADE Atlorney at Law 53 West Pomfret SU'eet Carlisle, Pennsylvania 17013 25. Plaintiff has repeatedly requested permission to enter Defendants' unit for further inspection since September of 2001, but Defendants refuse to grant such permission without a court order while, at the same time, demanding remediation of the mold problem. 26. Potential health hazards associated with indoor air quality as evidenced by the existence of mold, include various symptoms of headaches, fatigue, eye irritation, rashes, diarrhea, respiratory illness and may include fatal conditions such as Legionnaires' disease. 27. As a result of the advice of the experts who have examined the mold problem as to the potential health hazards presented by the existence of the mold in and at Defendants' unit, Defendants' unit has been vacant since at least January of 2002. 28. In the absence of the consent of Defendants for further entry into Unit F214, Plaintiff has expended thousands of dollars in examining units above and below Unit F214 in unsuccessful altempts to determine whether the mold has originated in Defendants' unit and migrated to the common elements or has originated in the common elements and migrated to Defendants' unit. -6- 29. Where Defendants' consulting engineer has advised evacuation of Defendants' unit, Plaintiff avers that the imminent threats, to the health, safety and general welfare of the owners of other nearby units from the unresolved mold problems that are immediately adjacent to the unit of Defendants, constitute casualties to the common elements and emergency conditions that are such that there is no adequate remedy at law. 30. Units that are immediately adjacent to Unit F214 are occupied by an elderly woman and a family with small children, both of which present high risk situations for illness from indoor fungi. 31. Plaintiff's experts have advised Plaintiffthat delays in inspection and remediation of the sources of the moisture that is causing the mold will present the risk of serious illness to owners of nearby units and the risk of serious diminution in the property values of the nearby units. 32. Plaintiff does not have a key to Defendants' unit, so entry without Defendants' consent would require forced entry. 33. Because the rights to which Plaintiff is clearly entitled involve access to real w^,mE F. Sm~oE II estate, Plaintiff's rights are unique; and any remedy at law would be inadequate and 53 West Pomfret Street Carlisle'i$;l~3s3 ylvania incomplete. -7- WAYNE F. SHADE Attorney at Law Carlisle, Pennsylvania 34. Where Defendants refuse to consent to entry by Plaintiff and its representatives for further inspection, Plaintiff avers that an Order of Court confirming the right of Plaintiff and its representatives under the provisions of the Declaration and Regulations to entry and re-entry by Plaintiff and its representatives as reasonably necessary to the evaluation and remediation of the mold problem would avoid a multiplicity of suits. 35. Plaintiff believes and therefore avers that the rights of Plaintiff herein are manifest, that Plaintiff's right to relief is clear, that the injury to Plaintiff and members of the Association, other than Defendants, in the absence of the relief requested will be ~rreparable and incapable of compensation by the award of monetary damages. 36. Where the last known address of Defendants Patrick E. Kruse and Ellen M. Kruse is in Massachusetts, Plaintiff believes that it will be unable to serve Defendants within five days of the date of an Order herein. 37. Plaintiff is unaware as to who will be representing Defendants in this matter. 38. Where Defendants have vacated Unit F214 pending resolution of the mold problem, Plaintiff avers that Defendants would not be prejudiced by the scheduling of a hearing under the provisions ofPa. R.Civ. P.R. 153 l(b) within five days after service of this Complaint upon all Defendants. -8- WAYNE F. SHADE 39. The relief requested herein is the minimal relief necessary to enable the Council to discharge its maintenance obligations under the Declaration and Regulations and would involve no material interference with the interests of Defendants where Defendants' unit Is presently vacant. WHEREFORE, Plaintiff respectfully requests that your Honorable Court order confirmation that the Council members, legal counsel, architects, engineers, insurance representatives, construction contractors and maintenance employees of Plaintiff may lawfully enter Defendants' unit under the provisions of the Declaration and Regulations as reasonably necessary for the evaluation and remediation of the mold problem that exists in and adjacent to Defendants' unit and that your Honorable Court award attorney fees in favor of Plaintiff and against Defendants, jointly and severally, for enforcement of Plaintiff's rights under the Declarations and Regulations under the authority of 68 Pa. C.S. § 3315 (a) and (f). Wayne K Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff -9- SHERIFF'S RETURN CASE NO: 2002-02942 P ~OMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PHEASANT RUN CONDOMINIUM VS KRUSE PATRICK E ET AL - OUT OF COUNTY R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: KRUSE MICHELLE but was unable to locate Her in his bailiwick. deputized the sheriff of DAUPHIN County, serve the within COMPLAINT - EQUITY He therefore Pennsylvania, to On July 15th , 2002 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin Co 29.25 .00 66.25 07/15/2002 WAYNE SHADE R/. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this ~/,~ day of ~ ~ 0~3~L A.D. Prothonotary;' ! Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin AND NOW:July 2, 2002 COMPLAINT KRUSE MICHELLE to HER of the original to him/her the contents thereof at : PHEASANT RUN CONDOMINIUM ASSOCIATION : KRUSE MICHELLE Sheriff's Return No. 1590-T - -2002 OTHER COUNTY NO. 02-2942 at 2:00PMserved the within upon by personally handing 1 true attested copy(les) COMPLAINT and making known POE: WARPJkNTy CORP 5300 DERRY ST HBG, PA 17111-0000 Sworn and subscribed to before me this 8TH day of JULY, 2002 PROTHONOTARY So Answers, Sheriff of Dauphin County, Pa. ~ , D~ty Sheriff Sheriff's C%gsts: $29.25 PD 07/01/2002 RCPT NO 166174 GMILLER In The Court of Common Pleas of Cumberland County, Pennsylvania Pheasant Run Condcminium Association VS. Patrick E. Kruse et al SERVE: Michelle Kruse No. 02 2942 civil Now, June 25, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriffof Dauphin Courlty to execute this Writ, this deputation being made at the request and risk of the Plaintiff.' Sheriff of Cumberland County, PA NOW, within Affidavit of Service ,20 , at o'clock M. served the upon by handing to a and made lmown to copy of the original So answers, the contents thereof. Sworn and subscribed before me this _. day of ,20 Sheriffof COSTS SERVICE IVl/LEAGE AFFIDAVIT County, PA I, JAMES E. PEDRICK, verify that I am the President of the council of Pheasant Run Condominium Association, that I make this verification on its behalf being authorized to do so and that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. {}4904 relating to unswom falsification to authorities. Date: June I , 2002 PHEASANT RUN CONDOMINIUM ASSOCIATION By.'~ ~~(~ ames E. Pedrick, President ~ WAYNE F. At~omey at Law