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HomeMy WebLinkAbout94-02434 ROBERT H. BARRETT, Petitioner :IN THE COURT OF COMMON PLEAS OF :CUHBERLAND COUNTY, PENNSYLVANIA v . . :NO, 94-2434 EQUITY TERM , , BOROUGH OF CARLISLE and :CIVIL TERM - LAW CONSOLIDATED BOARD OF APPEALS, : BOROUGH OF CARLISLE : Respondents : COURT ORDER AND NOW, this l1 day (J/1 attached Petition for a of May, 1994, upon consideration of the I _ A c>>Jl ~ ~ oh)~1 ~~ continuance, the Petition of the / Conso1idated Board of Appeals of the Borough of Carlisle is hereby granted. The hearing scheduled on the request for Preliminary Injunction on this matter on May 19 is cancelled. The hearing is rescheduled until Wednesday, June 8, 1994 at 8:45 a.m, in Courtroom No, 2 of the Cumberland Count Courthouse at Carlisle, Pennsylvania, BY THE , cc: Hubert X. Gilroy, Esquire Edward L. Schorpp, Esquire Keith 0, Brenneman, Esquire Ihr /7 if Os 4,V '9,/ ~: . , '~: ";';(1:;,' . '41 "."' , .'-:\ .; 'r./Ii , ,rr 5 Keith O. Brenneman, Esquire, is counsel for the Petitioner and does not concur with the request for the continuance in this matter. 6 Respondent, Consolidated Board of Appeals of the Borough of Carlisle requires a continuance of this hearing in order to have their counsel available to represent that Municipal body at a hearing. 7 This case involves an appeal from an Order of Condemnation for a building which Petitioner Robert H. Barrett owns. Respondents believe and herein aver that Petitioner will not be unduly prejudiced by the requested continuance, 8 The next time available for a hearing in this case before Judge Bayley is June 8, 1994, WHEREFORE, it is requested that the hearing in the above matter be continued until June 8, 1994, Hu ert x. Gilro~, Esquire Broujos, Gilro~ & Houston 4 North Hanov Street Carlisle, PA 7013 v, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 94-2434 EQUITY TERM ROBERT H, BARRETT, Petitioner BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents CIVIL ACTION - LAW ACCEPTANCE OF SERVICE AND NOW, comes Edward L, Schorpp, Esquire, Attorney for the Borough of Carlisle in the above-captioned action who, pursuant to Pa,R,C,P, 402(b) states that I hereby accept service of the Complaint in the above action on behalf of the Defendant Borough of Carlisle and certify that I am authorized to do so. LANDIS, BLACK & SCHORPP Date:A'A'.Y/~ 1'?9-Y BY:~~~~ Edward L, Schorpp, s U1re 36 S, Hanover street Carlisle, PA 17013 Attorneys for Borough of Carlisle LAW OFPICE. SNELDAKER a BRENNEMAN I I CORRECTION Previous Image Refilmed to Correct . Possible Error . ::r-. 0)- -- t- , b ,~ '+. ,~ ~ -1 '1 ~ '~ v, ; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 94-2434 EQUITY TERM ROBERT H, BARRETT, Petitioner BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents CIVIL ACTION - LAW ACCEPTANCE OF SERVICE AND NOW, comes Edward L, Schorpp, Esquire, Attorney for the Borough of Carlisle in the above-captioned action who, pursuant to Pa,R,C,P, 402(b) states that I hereby accept service of the Complaint in the above action on behalf ~f the Defendant Borough of Carlisle and certify that I am authorized to do so, LANDIS, BLACK & SCHORPP Date:;:PA'.Y/~ 1"?9~ By:~e~e 36 S, Hanover Street Carlisle, PA 17013 Attorneys for Borough of Carlisle LAW C"'ICla SNELEJAKER 8< BRENNEMAN .-..-.-.--.... . ~ .,J _ _ ,-.:,tC- .. ,"_'" ,. ' '_' ,,_, ;;";,iK{;c/-:i:.>,-" " _' ' . -J_,- ;;~'};':;:':"'X,,;;;,:;'~-~""",J.;;:' ;",~;.;~;~,;;\':.")i.'l;::0~iI\',iY.i""'''';\I!ii';'''"' ""'.oi.-....>.:.l....~J.:"'\-:.-.t....it;\j;\~::;.;.tli,.-8....:"q;;~~~' )~~"~fijlW,,.~-.'~i'f-.o-'- \ - -'. ;,........ .,----..-.._-,--~---------- .: ;t --' .. ~ , .'" '_:~-;.'-, :.",-'.',"';;" '.r_ Mn 3\ 8 41 ~"'9~ ....J , , Or-fleE ry, n;.. .:1110NOlAkY ClI!-'UEI1U_HD C')UllTY r(t;u~n"t,~t~ ...-' i F' .. if. , I ! '~-'Xl' ~ - d . " ... " " "~ I ....~--'" . ~'::.- ~~'~~t'..~;:.r' ,~ .;...." .", t~"'''''. ~, .- v, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 94-2434 EQUITY TERM CIVIL ACTION - EQUITY ROBERT H, BARRETT, Petitioner CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondent ORDER AND NOW, this day of , 1994, upon consideration of the Motion To Quash Notice To Produce, a hearing is scheduled thereon pursuant to Pa,R,C,P, 234,4(b) for the day of at o'clock ,M, in Courtroom No, , Cumberland County Courthouse, Carlisle, Pennsylvania, Movant shall serve certified copies of this Order upon all parties, or their counsel of record where applicable, forthwith, BY THE COURT: J, ROBERT H, BARRETT, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 94-2434 EQUITY TERM CIVIL ACTION - EQUITY v, CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondent MOTION TO OUASH NOTICE TO PRODUCE Robert H, Barrett, by his attorneys, Snelbaker & Brenneman, p, C" files this Motion to Quash pursuant to Pa,R,C,P, 234,4(b) as follows: 1, On May 24, 1994 Respondent Borough of Carlisle ("Borough") served a Notice to Produce upon counsel for Robert H, Barrett requesting the production of various documents at the office of the Borough's counsel on June 7, 1994, A true and correct copy of the Notice to Produce is attached hereto and incorporated by reference herein as "Exhibit A", 2, The Notice to Produce was believed to be served for purposes of the Borough obtaining documentation for use at a hearing scheduled in the above action for June 8, 1994, 3, The Notice to Produce improperly requests the production of documents at the office of the Borough's counsel at a time, date and location where no hearing, trial or deposition is or has LAW O,.,.'CE. SNELBAKER a BRENNEMAN been scheduled, 4, The underlying action in which the Borough seeks to compel the production of documents involves a request by Robert H, Barrett to have this Court issue an order enjoining the Borough and the Consolidated Board of Appeals from acting upon or taking any further action upon an Order of Condemnation issued April 12, 1994 respecting Robert H, Barrett's real property pending resolution of the appeal from the Consolidated Board of Appeals' adjudication of April 12, 1994, 5, Robert H, Barrett in the underlying action claims that he and his tenants are subject to irreparable harm due to his inability to have access beginning April 12, 1994 to a warehouse/garage structure that stores tools, materials and equipment used for maintenance and repairs of his rental properties, (See Complaint, Paragraphs 13, 14, 16 and 17,) 6, The Notice to Produce compels the production of documents spanning a five year time period, Due to the limited period of time that the Order of Condemnation has been in effect (beginning April 12, 1994), which period of time is the only time period relevant to the underlying action, the Notice to Produce subjects Robert H, Barrett to unreasonable annoyance, oppression, burden and expense. LAW O,.,.ICC. SNELBAKER 8< BRENNEMAN 7, The Notice to Produce compels the production of state and federal income tax returns and schedules for a five year -2- period, Such documents are irrelevant to the subject matter of this action, not reasonably calculated to lead to admissible evidence and would contain duplicative information, Accordingly, their production subjects Robert H, Barrett to unreasonable annoyance, oppression, burden and expense. WHEREFORE, Robert H, Barrett requests this Court to (1) schedule a hearing on this Motion; and (2) quash the Notice to Produce, Respectfully Submitted, c, By: Ke th O,Brenneman, Esqu re 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Petitioner Robert H, Barrett Date: June 2, 1994 LAW O,.,.ICC. SNELBAKER a BRENNEMAN -3- CERTIFICATE OF SERVICE I, KEITH 0, BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing Motion to be served upon the persons and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Edward L, Schorpp, Esquire 36 S, Hanover Street Carlisle, PA 17013 Hubert X, Gilroy, Esquire 4 North Hanover Street Carlisle, PA 17013 ~ Ke1th 0, Brenneman, Esqu re SNELBAKER & BRENNEMAN, p, C, 44 West Main Street p, 0, Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Petitioner Date: June 2, 1994 LAW O'FICE. SNELDAKER 8< BRENNEMAN ROBERT H, BARRETT, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 94-2434 EQUITY TERM , , , . . , v, , , , , BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents : CIVIL ACTION - EQUITY , , , , : NOTICE TO PRODUCE To Robert H, Barrett and Keith 0, Brenneman, Esq" his attorney: You are directed to produce the following: all leases, maintenance records, purchase receipts, repair invoices, federal and state income tax returns, federal and state income tax schedules, books of account, ledger sheets, work orders, time sheets and any and all other documents related to the rental, maintenance or repair of any and all real properties owned by you in the Borough of Carlisle, for the period ending June 8, 1994, and commencing five years prior thereto at 36 South Hanover street, Carlisle, Pennsylvania, on or before Tuesday, June 7, 1994, at 1:00 o'clock P,M, If you fail to produce the documents or things required by this notice to produce, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, Date:t?!;?)" .P~ ~ LANDIS, BLACK & SCHORPP BY:~~~~ Edward L, Schorpp Solicitor for Borough of Carlisle 36 South Hanover Street Carlisle, PA 17013 (717) 243-3727 EXHIBIT A ROBERT H, BARRETT, Petitioner , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 94-2434 EQUITY TERM , , v, , , , , , , , , BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents : CIVIL ACTION - EQUITY , , . , : CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document, NOTICE TO PRODUCE was served this date by depositing same in the Post Office at Carlisle, Pennsylvania, first-class mail, postage prepaid, addressed as follows: Keith o. Brenneman, Esq, Snelbaker & Brenneman 44 West Main Street Mechanicsburg, PA 17055 Hubert X, Gilroy, Esq, Broujos, Gilroy & Houston, P,C. Four North Hanover Street Carlisle, PA 17013 LANDIS, BLACK & SCHORPP 8y Ed:!:'~~. . Dated: /MY:2% rJ1C.! ~,' , , ~ ., ~ ~ ~ ~ ~L ~I:~ I Ii igl II ~~ ;11 '" '" ~ ~ ~ I IS u ~ 13 '" :z e ~ ~ ~ " OU~:Z III ;5 :z: 15 :s lQ ~ "':.. '" 0 ~ ',; IiJ\ ... .', -.,:1 '. Q... <ol -I; Z < < u . ...l -, :, " '. . . , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 94-2434 EQUITY TERM ROBERT H, BARRETT, Petitioner , , v, BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents , , CIVIL ACTION - EQUITY , , , , : BRIEF OF RESPONDENT BOROUGH OF CARLISLE IN OPPOSITION TO PETITION FOR INJUNCTIVE RELIEF I, STATEMENT OF THE CASE On May 6, 1994, Robert H, Barrett filed a complaint in equity and concurrently filed a petition for injunctive relief, Defendan~/Respondent Borough has filed preliminary objections to the complaint in which it raises the question of equity jurisdiction, In its answer to Barrett's petition for injunctive relief, Borough has similarly raised the question of equity jurisdiction, Jurisdiction is challenged on the basis that Barrett has an adequate non-statutory remedy at law and, secondly, Barrett has failed to exhaust an available statutory remedy, Barrett has alleged that Borough condemned his building at 25 North Bedford Street, Carlisle, Cumberland County, Pennsylvania, thereby excluding him from the right to use or occupy it until the structure is brought into code compliance, The Borough's order of condemnation was affirmed during local agency hearings before the Consolidated Board of Appeals, Factually, the property was ordered condemned because of a large ; d- (. 7,) lei I.dl-lJ{(t1.:; gaping hole in the northwest corner which rendered the structural integrity of the building suspect, because of the location of the building's main electrical service in close proximity to the corner hole and because a grossly inadequate roof structure readily admitted rain and other elements, Two hearings were held before the Board of Appeals, The first hearing resulted in a decision and order by the Board which upheld the enforcement notice and adjudication of the chief code enforcement officer, That decision was rendered on April 12, 1994, Immediately upon the rendering of that decision, the chief code enforcement officer served Barrett with an order to refrain from using or occupying the premises, That order was upheld by the Board of Appeals on May 9, 1994, Three days prior to the issuance of the May 9, 1994, decision of the Consolidated Board of Appeals, Barrett filed the within equity action and petition for injunctive relief, Barrett claims that the actions of the Borough, as upheld by the Consolidated Board of Appeals, prohibits him from utilizing the premises to .store tools, materials and equipment which Plaintiff uses to repair, maintain and renovate the various properties he owns within the Borough of Carlisle, which properties include apartments presently leased and occupied by tenants of Plaintiff. (see paragraph 14 of Barrett's petition and paragraph 13 of Barrett's complaint), He claims that the Borough has caused irreparable damage to him because he has been unable 2 to use the premises and, therefore has been caused to expend money for items and materials necessary to make repairs which he would otherwise not need to spend (see paragraph 17 of petition and paragraph 16 of complaint), II, QUESTIONS PRESENTED A, Whether Barrett has a full, complete and adequate non-statutory remedy at law, whereby jurisdiction does not rest with the equity court, B, Whether Barrett can meet all elements necessary to establish a claim for injunctive relief, III, ARGUMENT A, WHETHER BARRETT HAS A FULL, COMPLETE AND ADEQUATE NON-STATUTORY REMEDY AT LAW, WHEREBY JURISDICTION DOES NOT REST WITH THE EQUITY COURT, The proper forum for raising an objection to an equity action on the basis of the existence of an adequate remedy at law is a preliminary objection, Pa,R,C,P, 1509(c) states: The objection of the existence of a full, complete and adequate remedy at law shall be raised by preliminary objection, If the objection is sustained, the court shall certify the action to the law side of court, If not so pleaded, the objection is waived, ThUS, a successful objection of this nature goes to the existence of equitable jurisdiction and defeats the equity action, It is axiomatic that equity jurisdiction will not attach if 3 the plaintiff has an adequate remedy at law, Robinson v, Abinaton Educ, Assn" 492 Pa, 21B, 423 A,2d 1014 (19BO), Furthermore, equity jurisdiction may not be exercised to grant injunctive relief if an adequate remedy exists at law, Rodier v, Townshin of Ridlev, 141 Pa, Cmwlth, 117, 122, 595 A,2d 220 (1991), A court of equity may, in its discretion, determine whether the legal remedy is full, adequate and complete in view of all the surrounding circumstances and the conduct of the parties, Pittsburah's Airnort Motel v, Airnort Asnhalt and Excavatina Co" 332 Pa, Super 149, 469 A,2d 226 (19B3), The existence of an adequate remedy will negate equity jurisdiction if that legal remedy has been ignored, if the legal remedy has been pursued with results unsatisfactory to the claimant, or if the legal remedy is in the midst of being resolved, Naale v, pennsvlvania Insurance Dent" 46 Pa, Cmwlth. 621, 406 A,2d 1229 (1979), Finally, there will be an adequate remedy of law when such a remedy is presently available in terms of timeliness and in terms of the competency of the tribunal to resolve all of the issues in the case, st, Joe Minerals Corn, v. Goddard, 14 Pa, Cmwlth, 624, 324 A,2d 800 (1974), Therefore, the plaintiff must also demonstrate a sense of urgency for his relief before equity will assume jurisdiction where a remedy at law does exist, Accepting as true for purposes of Borough's preliminary objections Barrett's averment that Borough's actions have prevented him from being able to maintain rental properties, 4 Borough submits that Barrett has a full, complete and adequate remedy at law, His purported inability to use his property will not cause irreparable harm to himself or his alleged tenants, Basically, Barrett's claim is simply a claim for loss of use of a 'business' property, He claims to use this building as a shop and a materials warehouse, If his claims are true, he can readily obtain an alternate property for this purpose, He also has the option of hiring building trades contractors to perform necessary repairs until the building can be lawfully re-occupied, Thus, this loss of use, if caused by improper action on the part of the Borough, which is denied, can be fully and adequately compensated in an action at law, Essentially, if Barrett's claim for loss of use is valid, it is capable of being established to a reasonable degree of certainty and compensated in monetary damages, Those damages can be readily calculated to include the entire period of time that the condemnation order remained in effect, In his local agency appeal to the law side of this court, Barrett has alleged that the actions of the Borough have essentially deprived him of the permanent use of his premises under the eminent domain code, Although Borough vigorously disputes this conclusion, should its actions amount to a 'taking' under that code, Barrett again has a full and complete remedy at law in the form of an award of damages for the alleged wrongful taking, 5 " B, WHETHER BARRETT CAN MEET ALL ELEMENTS NECESSARY TO ESTABLISH A CLAIM FOR INJUNCTIVE RELIEF, Should this Court determine that it can assume equity jurisdiction, which it clearly should not, then Borough suggests that the evidence will not satisfy Barrett's burden of proof in meeting the various elements necessary for injunctive relief, This Court has recently addressed the standards for issuance of a preliminary injunction in Colletti v, Messiah COlleqe, 43 Cumb, 185, 192 (1994), as follows: The well established standards for the issuance of a preliminary injunction in equity are set forth by the Superior Court in Schulman v, Franklin & Marshall Colleqe, 371 Pa, Superior ct, 345, 352 (1988): 'A preliminary injunction is an extraordinary remedy available only where a party seeking it establishes that: (11 it is necessary to prevent immediate and irrevocable harm not compensable in damages, (2) greater harm would result from denying it than from granting it, (3) the right to it is clear and (4) the status quo would be restored if it was granted,' With respect to a clear right, the supreme Court of Pennsylvania stated in Shenanqo Vallev osteopathic Hospital v, Department of Health, 499 Pa, 39 (1982), that plaintiff must be likely to prevail on the merits, Stated another way, the Commonwealth Court set forth in Franklin Land Companv et aI, v. Borouqh of Fox Chapel, 32 Pa, Commonwealth ct, 478 (1977), that plaintiff must establish that the prospect of securing a permanent injunction is good, The well established elements of a claim for a preliminary injunction are further paraphrased in Bovkins v, citv of Readinq, 128 Pa, cmwlth, 154, A,2d 1027 (1989), as follows: ",(1) an immediate and irreparable harm not compensable by damages will otherwise result; (2) 6 t~ greater injury will be done by refusing it than by granting it; (3) it will return the parties to the status quo; (4) the activity sought to be restrained is actionable; and (5) injunctive relief is appropriate to abate that activity and grant of the injunction will not adversely affect the public interest, Borough submits that Barrett's vague allegations of harm do not form a sufficient basis for the granting of a preliminary injunction, Defendant Borough suggests that Barrett is unable to make a showing of immediate and irreparable harm, certainly, should repair work be necessitated in a rental unit, Barrett can contract with repairmen and building trades contractors to perform the necessary work, Indeed, many landlords do not personally repair their rental properties, Furthermore, Barrett is not legally permitted to perform plumbing repairs, as he is not licensed to do so under governing Borough ordinances, The testimony will demonstrate that he is not qualified to make electrical repairs, Therefore, no harm to himself or his tenants will be incurred by depriving Barrett of the use of this building, Just as importantly, Barrett has no clear right to equitable relief, His claims for relief have been thoroughly and exhaustively litigated before the local agency, the Consolidated Board of Appeals, The Board has sustained the major factors resulting in the Borough's enforcement notice, Additionally, Barrett has been convicted in the Court of Common Pleas of Cumberland County for identical code violations, Barrett has 7 also been convicted by a district justice for similar code violations, It is axiomatic under generally accepted principles and maxims of equity law, that a plaintiff who lacks .clean hands. is not entitled to affirmative relief, Kevstone Commercial Prooerties, Inc, v, the citv of Pittsburqh, 347 A,2d 707, 709, 464 Pa, 607 (1975), Borough has asserted in its answer to Plaintiff's petition, and expects to prove through testimony, that Barrett has deliberately, and at the least, passively, failed to adequately maintain the subject premises and many of his other properties, whereby they have become deteriorated and dilapidated over a long period of time, Indeed, he has been convicted on various occasions for violations of the Borough's property maintenance code for many of the conditions which are the subject matter of the within action, Despite his promises to make necessary repairs, none have been made, Further, Barrett has not obtained building permits for property repair for quite some time, To the extent that Barrett has performed electrical or plumbing repairs to any premises other than his personal residence, he has done so without benefit of a required plumbing license and necessary electrical qualifications, Borough also respectfully submits that greater harm would indeed result from granting Barrett's petition, The Borough's actions in condemning the structure are focused on preventing harm to Barrett or the public in general, The Borough expects 8 -1 ..., RO~ERT H, BARRETT, Petitioner , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA E'l.u.-t'l NO, 9'1- J..'134f ~ T~)::'~_ CIVIL ACTION - EQUITY v, BOROUGH OF CARLISLE AND CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents B!U& AND NOW, this ~ day of May, 1994, upon consideration of the Petition for Injunctive Relief Pending Appeal, it is hereby ORDERED that: 1, A Rule is hereby issued upon Respondent Borough of Carlisle and Respondent Consolidated Board of Appeals, Borough of Carlisle to show cause, if any they should have, why a preliminary injunction should not be issued providing the relief requested by the Petitioner Robert H. Barrett herein, said Ruls returnable on ..../lla~ 19 , 1994 at 10 Co o'clock Jl.,M, in Courtroom No, ~ in the Cumberland County Courthouse in Carlisle, Pennsylvania, at which time a hearing on the Petition For Injunctive Relief Pending Appeal will be held; and 2, Petitioner shall cause copies of this Rule and attached Petition For Injunctive Relief Pending Appeal erved upon the Respondents forthwith, / LAW O"ICI[S SNELDAKER a BRENNEMAN 04_ 4. ROBERT H, BARRETT, Petitioner v, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA E~u it.'( NO, "/'1_ :J'IJi{ .;........'-Ir!Nn~ BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents CIVIL ACTION - EOUITY NOTICE TO PLEAD TO: Borough of Carlisle 53 West South Street Carlisle, PA 17013 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Petition For Injunctive Relief Pending Appeal or a Default Judgment may be entered against you, By: SNELBAKER & BRENNEMAN, p, C, , r;/4(1'f,f(lJ~_'-../' Ke~th 0, Brenneman, Esqu~re 44 W, Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Petitioner Robert H, Barrett Date: May 6, 1994 L"W Off ICC5 SNELDAKER a BRENNEMAN oC 4, ROBERT H, BARRETT, Petitioner , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ~'iu.l.y NO, '7 ~ I. '1 :; 'I ~ i .,'/Z ",'. v, BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents , , CIVIL ACTION - EQUITY NOTICE TO PLEAD TO: Consolidated Board of Appeals, Borough of carlisle 53 West South Street Carlisle, PA 17013 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Petition For Injunctive Relief Pending Appeal or a Default Judgment may be entered against you, SNELBAKER & BRENNEMAN, p, C, By: /1- . ;~~/ . If{{ ~ _ .I~It'<l t !- tt,- Ke~th 0, Brenneman, Esqu~re 44 W, Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Petitioner Robert H, Barrett Date: May 6, 1994 LAW OFFICES SNELOAKER a BRENNEMAN ... .. ROBERT H, BARRETT, Petitioner v, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA E.b".L., NO, 1.!c :<v-_?'i -( '." r,f/e''''l , " BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents CIVIL ACTION - E~UITY I i " . I PETITION FOR INJUNCTIVE RELIEF PENDING APPEAL Petitioner Robert H, Barrett by his attorneys, Snelbaker & Brenneman, p, C, files this Petition For Injunctive Relief Pending Appeal and in support thereof states the following: 1, Petitioner Robert H, Barrett is an adult individual residing at 134 East High Street, Carlisle, Cumberland County, Pennsylvania, 2, Respondent is the Consolidated Board of Appeals, Borough of Carlisle ("Board"l, a local governmental agency of the Borough of Carlisle with a mailing address of 53 West South Street, Carlisle, Cumberland County, Pennsylvania, 3, Respondent Consolidated Board of Appeals, Borough of Carlisle, ("Board") is a local governmental agency of the Borough of Carlisle with an address of 53 West South Street, Carlisle, Cumberland County, Pennsylvania. LAW OFf'ICUI SNELDAKER a BRENNEMAN 4, Petitioner is the owner of a property with improvements thereon consisting of a garage/warehouse structure (the .. . "Property") located in the Borough of Carlisle, commonly known and numbered as 25 North Bedford street, Carlisle, Pennsylvania, 5, By letter dated December 14, 1993 the Zoning Officer and Chief Code Enforcement Officer for the Borough of Carlisle ("Borough") notified Petitioner that the Property was purportedly in violation of the Borough's property maintenance code and adjudged the Property unfit for use or occupancy, A true and correct copy of the letter of December 14, 1993 is attached hereto and incorporated by referenc.:. herein as "Exhibit A", 6, In accordance with the directions contained in the letter of December 14, 1993, Petitioner sought modification or withdraw of the Notice by timely filing a Notice of Appeal with the Board on December 28, 1993, A true and correct copy of Petitioner's Notice of Appeal filed December 28, 1993 is attached hereto and incorporated by reference herein as "Exhibit B", 7, A hearing on Petitioner's Notice of Appeal was held before the Board on January 18, 1994 at which hearing Petitioner and the Borough of Carlisle were represented by counsel, 8, The aforementioned hearing held on January 18, 1994 was stenographically recorded, LAW OF....Ctti SNELBAKER 6 BRENNEMAN -2- . .. 9, On April 12, 1994 the Board publicly announced and issued its adjudication in writing, which adjudication sustained in part and denied in part Petitioner's appeal of the Borough's enforcement Notice, A true and correct copy of the Board's adjudication of April 12, 1994 is attached hereto and incorporated by reference herein as "Exhibit C", 10, On May 3, 1994 Petitioner filed an Appeal From Final Adjudication Under Local Agency Law with this Court docketed to No, 94-2346 civil Term, thereby appealing the aforementioned adjudication of April 12, 1994, A true and correct copy of the Appeal, without exhibits thereto, is attached hereto and incorporated by reference herein as "Exhibit D", 11, On April 12, 1994, immediately upon public announcement by the Board of its adjudication, the Borough served upon Petitioner a purported Order of Condemnation ordering Petitioner to, inter alia, vacate the property, close up the structure and cease all use, occupancy and residency of the Property immediately, Said Order of Condemnation was issued as a direct result of the adjudication of the Board on April 12, 1994, A true and correct copy of the Order of Condemnation dated April 12, 1994 is attached hereto and incorporated by reference herein as "Exhibit E". LAW OI'FICtS SNELDAKER a BRENNEMAN -3- . .. 12, Petitioner has timely filed a Notice of Appeal with the Board respecting the April 12, 1994 Order of Condemnation in accordance with the directions contained therein for purposes of preserving his rights thereunder, 13, On May 6, 1994 Petitioner filed a Complaint in Equity with this Court seeking, inter alia, to stay and enjoin the Borough from taking any further action to condemn the Property and to enjoin the Board from hearing and acting upon the Order of Condemnation issued April 12, 1994 pending resolution of the appeal from the April 12, 1994 adjudication, A true and correct copy of Petitioner'S Complaint, without exhibits, is attached hereto and incorporated by reference herein as "Exhibit F", 14, Petitioner utilizes the Property in question to store tools, materials and equipment which Petitioner uses to repair, maintain and renovate the various properties he owns within the Borough of Carlisle, which properties include apartments presently leased and occupied by tenants of Petitioner, 15, After April 12, 1994 on a date unknown by Petitioner, the Borough placed placards of condemnation on the Petitioner'S property, LAW OF"ICES SNELBAKER . BRENNEMAN 16. As a result of the decision by the Board on April 12, 1994, the Borough has proceeded with condemning the Property -4- 04 .. although the time for an appeal from the Board's adjudication had not passed and in fact an appeal from that adjudication has been taken, 17, By threatening Petitioner with criminal prosecution and excluding Petitioner from the Property, the Borough has caused irreparable damage to the Petitioner in that he is unable to gain access to the tools, materials and equipment stored on the Property, As a result, Petitioner has been caused to expend sums of money for items and materials necessary to repair and maintain his various properties which he would not otherwise need to purchase if he had access to the Property, 18, By the Borough proceeding to deny Petitioner access to the Property pending his appeal from the April 12, 1994 adjudication, the well-being of Petitioner and Petitioner's tenants is at jeopardy and they are subject to irreparable injury due to Petitioner'S inability to properly maintain and keep habitable his leased properties, 19, By requiring the Property be vacant yet placarded, the Borough is making the property attractive to trespassers and others, all at the risk of loss and liability of the Petitioner, LAW OH'ICt!J SNELDAKER 6 BRENNEMAN 20, The proceeding giving rise to the adjudication of April 12, 1994 indicated that the public is not subject to substantial -5- ... J or immediate harm due to the present condition of the Property, Accordingly, the issuance of injunctive relief in this case in the nature of an order staying any further condemnation action or proceeding by the Borough or the Board concerning the property would not substantially harm other interested parties or adversely affect public interest, 21, The Borough and the general public will not suffer an appreciable injury if the requested injunctive relief is issued because the status quo between the parties will be restored to where it was before the Borough's efforts of condemnation were undertaken, 22, Petitioner's right to relief is clear and greater injury would result to him and his tenants by refusing the injunctive relief requested herein than by granting it, 23, Petitioner has no adequate remedy at law to redress the condemnation proceeding by the Borough pending the resolution of this Appeal. 24, Due to deficiencies in the enactment of the Borough's property maintenance code, the errors of law, unsubstantiated findings of fact and the unconstitutional standard by which Petitioner's Property was adjudicated to be unsafe (See Appeal, Exhibit D hereto I Petitioner is likely to prevail on the merits, LAW OFFices SNELBAKER a BRENNEMAN -6- JI ... WHEREFORE, Petitioner Robert H, Barrett requests this Court to: A, Issue a Rule to Show Cause why a preliminary injunction should not be granted against Respondent Borough of Carlisle, precluding all action to condemn, placard and lock the property and to deny Petitioner access thereto pending resolution of the Appeal docketed to No, 94-2346 civil Term; B, Issue a Rule to show cause why a preliminary injunction should not be granted against the Consolidated Board of Appeals, Borough of Carlisle to preclude it from hearing and acting upon the Order of Condemnation issued April 12, 1994 pending resolution of the Appeal from its adjudication of April 12, 1994; and C, Grant any other relief which this Court deems just and proper, By: S~~C. Keith O,Brenneman, Esquire Pa, I,D, No, 47077 44 West Main street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Petitioner Robert H, Barrett Date: May 2, 1994 LAW On"ICES SNELBAKER a BRENNEMAN -7- .. .. VERIl"ICATION I verify that the statements made in the foregoing Petition/complaint are true and correct, I understand that false statements herein are made subject to the penalties of 18 Pa, c,s, 54904 relating to unsworn falsification to authorities, ~kd- t-f ,.rgcv.udl- Robert H, Barrett Date: May 2, 1994 .., 06_ CERTIFICATE OF SERVICE I, KEITH 0, BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing Petition For Injunctive Relief to be served upon the person and in the manner indicated below: FIRST CLASS MAIL. POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Edward L, Schorpp, Esquire 36 South Hanover Street Carlisle, PA 17013 Hubert X, Gilroy, Esquire 4 North Hanover Street Carlisle, PA 17013 Keith 0, Brenneman, Esquire SNELBAKER & BRENNEMAN, p, C, 44 West Main street p, 0, Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Petitioner Robert H, Barrett Date: May 6, 1994 LAW OFFICES SNELDAKER . BRENNEMAN .- . .~... BOROUGH OF CARLISLE -. .. ,-. I' ' .' -, . ~ \ ; -' - I , ...,. .,... .' '.' r'" .,;, - .....1 . '. "Commilt<<l7b _1I,'Ict In CommlUlily Suvlct" December 14, 1993 CERTIFIED MAIL Robert Barrett 134 E, High Street Carlisle, PA 17013 RE: property HaiDtenuce Colle Violations - 2S H. Bellford street, carlisle, PA 17013 Dear Mr, Barrett: On Monday, November 1, 1993, and on Monday, December 13, 1993, I inspected the above mentioned property to determine the status of previously identified property maintenance code violations, The following is a list of continuing code violations observed during these inspections: 1. The hole situated at the northwest corner of the building appears to show same signs of degradation. Many of the bricks were loose and the cracks in the mortar appear to have worsened. These deficiencies constitute a violation of Section PM-302,3 of the 1990 BOCA Property Maintenance Code titled "structural Members", This section reads as follows: "All structural members shall be maintained free of deterioration and capable of safely bearing the imposed dead and live loads", Further, the existence of this hole is a violation of PM-302.5, titled "Exterior Walls" which reads as follows: "All exterior walls shall be free of holes, breaks, loose or rotting materials; and maintained weather-proof and properly surface coated where required to prevent deterioration." 2, The electric service and electric meter are mounted on the wall that was damaged, Section PM-602,J, titled "Electrical System Hazards" states that "where it is found that the electrical system in a structure constitutes a hazard to the occupants or the structure 53 West South Street. Carlisle. PA 17013 Tel. (717) 249-4422: FAX (717) 2-19.5567 ._~ . Robert Barrett December 14, 1993 Paqe 2 by reason of inadequate service, improper tusinq, or insufficient outlets, improper wirinq or insulation, deterioration or damaqe, or for similar reasons, the code Official shall require the defects to be corrected to eliminate the hazard. The deqradation of the wall which supports your electrical service constitutes a violation of this section of the code. 3, PM-302.6, titled Roofs and Drainaqe states that "the roof and flashinq shall be sound, tiqht and not have defects which miqht admit rain. Roof drainage shall be adequate to prevent dampness or deterioration in the walls or interior portion of the building, Roof water shall not be discharged in a manner that creates a public nuisance," The holes in the roof admit rain water to the interior of the building, Further, because two sides of the property abut a public alley and a public sidewalk, and because the downspouts and gutters have deteriorated to a state where they no lonqer serve their function, rainwater discharged from these portions of the buildinq constitute a public nuisance, 4. section PH-302.11 titled Window and Door Frames states that "Every window, door and frame shall be kept in sound condition, qood repair and weather tight". On the south side and front of the buildinq there are several window panes that have been broken, I hereby adjudge the premises unfit for use or occupancy because it contains unsafe equipment, because the structure itself is unsafe and because the structure is unfit for human occupancy or use. You are hereby ordered, within 21 days of your receipt of this letter, to secure a buildinq permit to effect the required repairs, and you are hereby further ordered to make the required repairs within 60 days of your receipt of this letter. Should you fail to secure a building permit within 21 days of your receipt of this letter, or should you fail to complete the repairs within 60 days of your receipt of this letter, then in either event, I will issue an order of condemnation, and I will thereafter placard the premises condemned as unfit for human occupancy or use. Should the premises be placarded, you are ordered to thereafter promptly remove from service the electrical service entering the premises, and to promptlY vacate the premises, -. Robert Barrett December 14, 1993 Page 3 At such time as a condemnation placard is placed upon the premises, you shall immediately remove yourself therefrom. Any person who shall occupy a placarded premises or structure or part thereof, or shall use placarded equipment, and any owner or any person responsible for the premises who shall let anyone occupy a placarded premises shall be liable for the penalties provided by law. Penalties may consist of a fine of not less than $50.00 nor more than $300.00, or imprisonment for a term not to exceed 30 days, or both, at the discretion of the court. Each day that a violation continues shall be deemed a separate offense. I do not believe the structure is vacant in that I have observed contents in the interior of the premises, and you have been observed utilizing the premises. Should the structure be vacant, and should a placard of condemnation be placed thereon, you are ordered to close-up the premises within 48 hours of such placarding or I shall cause the premises to be closed in the manner permitted by law, Any cost in connection therewith may be charged as a lien upon the real estate. You have the right to seek modification or withdrawal of this notice by filing a written notice of appeal with the Board of Appeals within ten (10) days after your receipt of this notice, Such appeal must be accompanied by the required filing fee as the same is established by law. Such appeal must be received by the Code Enforcement Department of the Borough of Carlisle within such time period. Appeal applications are available at the Borough's Code Enforcement office at 53 West South Street, Carlisle, Pennsylvania 17013. This notice does not supercede, modify or in any way invalidate any prior notices, orders or proceedings involving referenced premises, truly yours,/ 'I;;.,- /- Scott D, Graubard Zoning Officer and Chief Code Enforcement Officer SDG:skg IO'l'ICE OF mEIL I~~I::-- LQ:, OECZ~ r I ____. ~URJUGH 0; i:!';'_,~,'_'. OEPl Of PUBLIC 'I"J~I.' ...... Do Hot Write in This Space, For Office Ose Only, Date HearinS Held Appeal 10, Fee Paid Receipt 10. COllSOLIDADD BOAID OF APPEALS Borough of Carlisle . Dah: 22 December 1993 (II (WEl Bobert H. Barrett (lama I OF 134 It, HUh st, , lMailins Addre..l Carlisle, PA 17813 PHOIlE: 243-8989 (Home I 783-8911-11382 (Wol'kl request that & determination be made by the Board of Appeals, which was denied by the Borough aepresentative on 18 December ,19 93 The description of the property involved in this appeal is as folio..: LocaUon: 25 N. Bedford St, (the old Rufe .ara..l Present Ose: Work.ho~, .ara.e, I stora.e area - Zonins District: (II (WE) believe that the Board should approve this request because (include the grounds for appeall: I have been notified bv the BorouCh of Carlisle that they intend to condemn subject orooertv. I am reauestin. that the Borou.h withdraw its notice of intent to condemn and that further harassine action related to subject orooertv cease. The basis for mY reauest is that the buildin. does not meet the lecallv adooted criteria of the Borou.h for condemnation and that the Boro~h is attemotin. to annlv arbitrary, canricious. and unlawful criteria to condemn the prooertv, /(trk-f II. ~QMJl.-jf- Signature of Petitioner EXHIBIT B . IN RE: APPEAL OF ROBERT H. BARRETT : BEFORE THE CONSOLIDA'rED : BOARD OF APPEALS, : BOROUGH OF CARLISLB : CUlIBERLAND COUNTY , . . , : APPEAL OF NOTICE OF : CONDEMNATION DECISION I, PROCJ:iJ.JaR.1lL HISTORY This case arises out of the efforts of the Borough of Carlisle (Borough) to condemn for Code Violation reasons a .cructure located at 25 North Bedford Street, Carlisle, Pennsylvania (Subject Property), The Subject Property is owned by Appellant Robert H. Barrett(Barrett}, By letter dated December 14, 1993 (Exhibit P8)1, the Zoning Officer and Chief Code Enforcelnent Officer for the Borough, Scott D. Graubard, issued a determination to Barrett and identified various property maintenance code violations at the Subject Property, By virtue of this letter, Mr, Graubard in his capacity as zoning Officer and Chief Code Enforcement Officer determined that the Subject Property was unfit for use or occupancy because of the code violations, A directive was issued in this letter to Barrett requiring him to secure a building permit to accomplish -1- I Exhibits refer to Exhibits submitted at the Hearing held before the Board of Appeals on January l8, 1994, with references to any pages of the transcript: of said Hearing refereed to as "N,T," EXHIBIT C _. the required repairs, with the building permit to be secured within twenty-one days and the repairS to be accomplished within sixty days, This letter further advised Barrett that his failure to take the requested action within sixteen days would result in the issuance of an qrder of Condemnation for the Subject Property and also advised Barrett of his various appeal rights. Barrett did not dispute receipt of the December 14, 1993 letter. Barrett filed II Notice of Appeal (BXhibit P4) with the Borough on December 28, 1993, whereby Barrett requested that the Borough withdraw its Notice of Intent to Condemn and stated as a basis for the Appeal as follows: "The basis for my request is that the building does not meet the legally adopted criteria of the Borough for Condemnation and that the Borough is attempting to apply arbitrary, capricious, and UDlawful criteria to condemn the property" . The Appeal of Barrett was filed with the Borough of Carlisle Consolidated Board of Appeals (Board). The Board was organized pursuant to appropriate action of the Borough (Exhibit P3) for the purpose of review of decisions relating to building code matters, housing code matters, plumbing code matters, curb and sidewalk ordinance matters, and shade tree commission issues, After appropriate advertisement, the Board convened a Hearing on January 18, 1994, Present at that time for the Board were -2- -. Chairman, Mr, Lee Diehl, and members Mr, James Oliver and Mr. Ralph Tierno. Hubert X. Gilroy, Esquire acted as solicitor for the Board. The Borough entered an appearance at this Bearing and was represented by Edward L, Schorpp, Esquire. Mr. Barrett was in attendance at the Hearing and was represented by Keith O. Brenneman, Esquire, During the course of the Hearing, all parties were afforded the opportunity to present testimony and offer exhibits for consideration by the Board. At tbe conclusion of the Hearing, an agreement was reached with counsel for the parties that a transcript would be made of the January 18, 1994 proceedings, after which counsel for both parties would be afforded the opportunity to file a memorandum with the Board. Both parties have filed Legal Memorandums with the solicitor for the Board and these memorandums have been reviewed by members of the Board, The Board met on March 14, 1994, in an executive session for purposes of deliberating on this case. II. FINDINGS OF FACT The Board hereby finds the following findings of fact: 1 The Appellant in these proceedings is Robert H. Barrett (Barrett) who resides at 134 East High Street, Carlisle, PA. 2 Mr, Barrett is the owner of a certain parcel of real estate -3- -. located at 25 North Bedford Street, Borough of Carlisle, Cumberland County, Pennsylvania (Subject Property). 3 By letter dated December 14, 1993, the Borough of Carlisle (Borough) issued a Condemnation Notice to Hr, Barrett relating to the Subject Property based upon allegations of continuing code violations. 4 By Notice of Appeal filed December 28, 1993, Hr. Barrett appealed the Borough's Condemnation Notice to the Borough of Carlisle Consolidated Board of Appeals (Board). 5 A Hearing was held before the Board on January 18, 1994, at which time all parties were provided an opportunity to present testimony and submit any and all Exhibits. 6 The parties were afforded an opportunity to submit to the Board Legal Memorandums in support of their respective positions. 7 In May of 1988, an automobile struck the wall of the subject Property facing North Bedford Street, which accident caused a hole in the brick wall (N,T,154). 8 Testimony and photographs presented at the Hearing indicated that -4- ~. the following conditions exist at the Subject Property: A. The hole which is situated in the northwest wall at the subject Property shows signs of degradation with many of the bricks becoming loose and cracks in the mortar appearing. B. The electric service for the Subject property is an electric meter which is mounted on the wall where the hole in question is located, C. There are holes in the roof of the Subject Property which admit rainwater into the interior of the building. D. The downspouting and gutters on the Subject Property have deteriorated such that they are no longer able to serve their function which results in rainwater going onto the sidewalk. E. There are several window panes at the Subject Property which have been broken, III. DISCUSSION Mr, Barrett has raised through his testimony at the Hearing and his memorandum a number of issues relating to procedural matters and the merits of the December 14, 1993, Condemnation Notice, The Board will address these issues separately. A, PROCEDURAL ISSUES Mr, Barrett first contends that the Boca National Property Maintenance Code (Boca Code) as adopted by the Borough fails to properly provide for an appeal of an Enforcement Notice, The Boca Code was adopted by the Borough by virtue of Ordinance No, -5- -_. 1691 (Exhibit P2), This ordinance essentially adopted the Boca Code in its entirety with certain .,dlLications. The Boca Code, which is made a part of Ordinance 1691 and is attached thereto, at SPH-l11 addresses the rights of an appeal of any type oL Enforcement Notice. The Borough, in its Ordinance 1691 modi Lied the appeal procedure at S183,3.C by providing for an appeal to any Notice issued under the Boca Code to be filed with the Board (as compared to a different Appeals Board contemplated under SPH- 111 of the Boca Code). Hr, Barrett's abjection is that the Borough Ordinance at S183 ,3 ,C sought to revise SPM-l12 when the Boca Code which is refereed to did not contain a SPH- 112, An examination of the Boca Code indicates that the appeal procedures are as set forth in SPM-111. Clearly, this is a typographical error in the drafting oL the Borough's Ordinance and Mr. Barrett suggests that the ordinance is now void. It is clear that the Borough intended to allow the Board to hear appeals under the Boca Code rather than having a separate Boca Code Appeals body, In interpreting a statute or ordinance, the polestar is the intent of the enacting body. Baker v Commonwealth, 135 Pa, Comm. 597, 581 A.2d 1019 (1990), The principals contained in the Statutory Construction Act are to be followed in construing local municipal ordinances. patricca v Zonina Hearina Board of Adiustment of Citv of Pittsburah, 527 Pa. 267, 590 A.2d 744 (1991), Accordingly, in interpreting -6- -, Borough Ordinance 1691, the board is required to look to the intent of the Borough Council in enacting the ordinance, the object to be obtained by the Ordinance and the consequences of a particular interpretation. 1 Pa,C.S,A. S1921. fo accept Hr. Barrett's argument would result in no appeal process available to any property owner who receives an Enforcement Notice. Such a result is contrary to the intent of the enacting body and is the type of "mischief" which the state Legislator suggested must be "remedied" by allowing the legislative intent of the ordinance to control as compared to clear typographical errors. 1 Pa.C.S.A, S1921(c)(3), Mr, Barrett's suggestion that the applicable ordinance does not provide a provision for an appeal and that this Board lacks authority to review the case at bar is without merit. Mr. Barrett also suggests that the timing of the ordinance forming the Board, Ordinance 1420 adopted in March of 1983 (Exhibit P3), results in the Board not having authority to entertain this appeal, Again, Hr. Barrett's arguments are contradicted by the clear language of the ordinance. Borough Ordinance 1691 specifically intended for this Board to hear any appeal of an Enforcement Notice and at S183-7 provided that other ordinances inconsistent herewith would be repealed. Accordingly, Borough Ordinance 1691 expanded the authority of the Board as -7- -. outlined in Borough Ordinance 1420. Furthermore, ~rom a legislative construction point o~ view, OrdinalJce 1420 at S1.2 gave power to this Board to hear matters relating to the "Building Code", and it is clear that Ordinance 1691 re~ers to buildings and their maintenance. Hr. Barrett is incorrect in asserting that this Board was never given authority to review matters involving the Boca Code. rhe plain language o~ the ordinances along with the clear legislative intent o~ the enacting body demonstrates that Hr. Barrett's argument on this issue lacks merit, Hr, Barrett also suggests that the December 14, 1993 En~orcement Notice issued by the Borough was void on its face based upon the suggestion that the Borough did not implement an appeal procedure and that this Board had no authority to hear such an appeal. For the reasons set forth above, there is no basis for Hr. Barrett to suggest that the December 14, 1993 Enforcement Notice is void or invalid, Hr, Barrett also suggests in his memorandum that the Boca Code is unconstitutionally vague by defining an unsafe structure as one that is likely to partially or completely collapse. There is no reference in Mr, Barrett's memorandum as to what particular constitutional statute would support his attack on the Borough'S -8- -. Boca Code Ordinance alleging vagueness in the definitions. Additionally, Mr. Barrett does Qot cite any Case Lav authority in support of this argument. The Boca Code at SPH-05.2 defines "Unsafe structure" as follows: An unsafe structure is one in which all or part thereof is found to be dangerous to life, health, property or the safety of the public or the occupants of the structure by not providing minimum safeguards for protection from fire or because such structure contains unsafe equipment or is so damaged, decayed, dilapidated, structurally unsafe, or of such faulty construction or UlJStable foundation that partial or complete collapse is likely. Mr, Barrett argues that because at some point in time all structures are likely to collapse the definitional standard in the Boca Code is unconstitutionally vague because it fails to delineate a time frame for collapse in order for a structure to be classified unsafe, The Egyptians wbo built the pyrlJ1lJids would dispute Mr, Barrett's suggestion that all structures will eventually collapse over time, The definition of .Unsafe structure" includes within its terms that the likelihood of collapse renders the structure dangerous to life, health, property or safety of the public or occupants of the structure, The mere fact that the collapse of a building in tbe future is inevitable does not render such a structure to be unsafe. It is a basic principle of the due process clause of the U.S. Constitution that an enactment is void for vagueness if its prohibitions are not clearly defined. A law must give a person of ordinary intelligence a reasonable opportunity to know what is -9- -. prohibited and must provide explici.t tJtandards. Gravned...Jl. Rockford, 408 U.S. 104, 92 S.ct. 2294, 33 L.Bd. 2d 222 (1972). Hr, Barrett suggests that the te1'D "likely" i.s vague. We agree that the term "likely" may be somewhat subjecti.ve but, when read with the other language of the ordinance, does provide a standard that gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited. This i.s especi.ally true when the language "likely to collapse" is used in conjunction with the standard that the likelihood is of such a nature that it renders the property unsafe. Some leeway must be afforded to municipalities in determining the degree of safety measures that must be taken to provide a healthy enviroment for the citizens, and this degree of leeway shall correspondingly be applied to a determination of the likelihood of collapse of a building being to such a degree as to create an unsafe situation. The final procedural issue which Hr, Barrett raises i.s a suggestion that the Boca Code is an unconstitutional taking without just compensation. He makes this allegation on a suggestion that the practical consequence of the condemnation procedure initiated by the Borough in this case is the depravation to Hr, Barrett of the entire use and value of his property, On the contrary, Hr. Barrett is not being deprived of the use of his property. Hr, Barrett can continue to use the -10- -- Subject Property if he were to abide by the Borougb's requests and perform the repairs which the Borougb feel are lJltCe..ary. 'there is no suggestion by Mr, Barrett that be does lJot bave the financial resources to accomplish these repairs. Municipalities, in the exercise of their police powers, have the rigbt to adopt and enforce ordinances and building codes providing for tbe removal of a building tbat is unfit for human habitation and beyond repair. Burks County Trust ComDanv v ICenborst Borouah, 53 Berks 109 (1959), So long as tbere is adequate lJotice and an opportunity for a hearing, condemnation proceedings such as tbe one in this case constitute the proper and necessary exercise of the police power of a municipality, City of Pittsbura~ v Kronzek, 2 Pa. Comm, 660, 280 A,2d 488 (1971), Mr. Barrett in his memorandum has failed to cite any legal authority in support of a proposition that condemnation proceedings sucb as tbe procedures employed in this case amount to an unconstitutional taking without just compensation. The Case Law cited by Mr. BarrettJ deals with the constitutional validity of zoning regulations and has no bearing on the case before the Board. B, SUBSTAN'tIVE ISSUES The December 14, 1993, Enforcement Notice which is at issue in -11- 2 Baronoff v Zonina Board of Adiustment, 385 Pa. 110, 122 A,2d 65 (1956), - this case identified four separate alleged code violations at the Subject Property. The Zoning Officer aDd Code BnforcfJJllent: Officer for the Borough deter.mined in his December 14, 1993 Notice that these code violations rendered the Subject Property unfit for use or occupancy because the structure contained unsafe equipment, because the structure itself was unsafe and because the structure was unfit for human occupancy or use. The pertinent provisions of the Boca Code vbich are codified in Borough Ordinance 1691 are found at SPH-105 and provide as follows: PM-ID5,1 General: When a structure or part thereof is found by the code official to be unsafe, or when a structure or part thereof is found unfit for hWlUUJ occupancy or use, or is found unlawful, such structure shall be condemned pursuant to the provisions of this code and shall be placarded, vacated and shall not be reoccupied without approval of the code official. Unsafe equipment shall be placarded and placed out of service. PM-ID5,2 Unsafe structure: An unsa:fe structure is one in which all or part thereo:f is found to be dangerous to li:fe, health, property, or the sa:fety of the public or the occupants of the structure by not providing minimum safeguards for protection frem fire or because such structure contains unsafe equipment or is so damaged, decayed, dilapida ted, structurally unsa:fe, or o:f such :faul ty construction or unstable foundation that partial or complete collapse is likely. PM-ID5,3 Unsafe equipment: Unsa:fe equipment includes any boiler, heating equipment, elevator, moving stairway, electrical wiring or device, flammable liquid containers or other equipment on the premises or within the structure which is in such disrepair or condition that such equipment is a hazard to life, health, property or sa:fety of the public or occupants of the premises or structure. PM-ID5,4 St::ructure unfit for human occupancy: A structure is unfit for' human occupancy or use whenever the code o:f:ficial -12- --, finds that such structure is UDsafe, unlawful, or because of the degree in which the structure is in disrepair or lacks maintenance, is unsanitary, vexmin or rat infested, contains filth and contamination, or lacks ventilation, illumination, sanitary or heating facilities or other essential equipment required by this code, or because the location of the structure constitutes a hazard to the occupants of the structure or to the public. Although the Enforcement Order in question does not suggest that the Subject Property would be demolished if the alleged code violations were not remedied, the Notice does suggest that the subject Property would be subject to an "Order of CondamDation" and that the property would be placarded and no longer subject to occupancy or any use, In essence, the Enforcement Order would prohibi t Mr, Barrett's use of the property. The Board views such action as akin to a taking without compensation pursuant to the police power of the municipality. As such, any sucb order must be subject to strict scrutiny and lUy only be taken if the circumstances indicate it is necessary for the protection of the public health, welfare and safety. Kina V TownshiD of Leacock, 122 Pa. Comm, 532, 552 A.2d 741 (1989). Furthermore, the Board determines that the burden is on the Borough to demonstrate that the alleged code violations do exist and that the code violations render the structure to be dangerous to life, health, property or safety of the public or occupants of the structure. The Borough did not adopt a position at the Hearing in this matter that the cumulative effect of the various alleged code -13- . _. violations rendered the Subject structure UDSa%e. ~he arguments advanced by the Borough were such that there were %our di%%erent distinct areas 0% code violations, but there was DO suggestion that the different code violations on a cumulative basis rendered the property unsafe, Accordingly, the Board addresses each alleged code violation separately. BUILDING WALL The primary thrust of the Borough's case centered on the bole in the northwest corner of the wall 0% the building. ~estimony established that this hole was caused by an automobile striking the Subj ect Property in approximately 1988. NWJlerous photographs were entered into evidence which depicted the building wall (Exhibits P9 through P15) , Scott D. Graubard, Zoning o%%icer and Code Enforcement Officer for the Borough testi%ied at the Hearing concerning this matter, He indicated that the hole in the st=ucture's wall was a violation of PH-302.3 which reads as follows: All structural members shall be maintained free of deterioration, and capable of safely bearing the imposed dead and live loads. Additionally, Mr, Graubard suggested that the hole in the wall was in violation of PH-302,5 which provides as follows: All exterior walls shall be free of holes, breaks, loose or rotting material; and maintained weatherproo% and properly surface-coated where required to prevent deterioration. -14- - Hr, Graubard rendered an opinion that he felt tbe hole clearly degraded the structural integrity oi tbe building and that the hole could lead to a collapse oi the structure that WDuld endanger anyone in the building, anyone occupying the public right-of-way in that area, or that the building could collapse and strike adjoining properties on the other side oi tbe alley which is adjacent to the Subject property. Tbe Board also offered the testimony of Hr. Robert Burrell who is a structural engineering consultant. Hr. Burrell, like Hr. Graubard, bad also conducted an inspection oi the subject Property. Be coniinaed the fact that the brick work near the hole is becoming dislodged and loose and he rendered an opinion that the building was an unsafe structure because of this likelihood of collapse of the building. Both Hr. Burrell and Hr. Graubard noted that brick near the hole in the wall appears to have shifted outward which would suggest a shifting and stress on the wall in that area which is consistent with the theory that the hole in the wall is causing stress on the integrity of the building structure and is slowly putting the building in a situation where immediate collapse is inevitable. Hr, Barrett testified at the Hearing that he made what he considered to be the necessary repairs to the hole in the wall after the 1988 automobile accident. He suggests that the hole in -15- - . -. the wall is no different today than it was immediately a:fter the accident and that there has been no deterioration o:f the structure. Mr, Barrett also called Mr. Michael Linn, a masonry restoration businessman, as a witness. Mr, Linn inspected the hole in the wall and suggested that the jack which was installed in the hole by Mr, Barrett was an adequate remedy :for the damage to the property. Mr, Linn suggested that although it is inevitable that the building will fall, he did not :foresee a collapse within the next two years. The Board has carefully considered the testimony o:f all the witnesses on this issue and has cerefully reviewed the photographs which have been made part of the record. The photographs themselves clearly depict that the brick near the hole is coming loose and appears to be deteriorating (Exhibits P9, P10 and P11) . The photographs verify the testimony o:f the Borough's witnesses, The photos also verify the :fact that there has been some movement or shi:fting in the brick wall o:f the building (Exhibit P30 and P31), The photos also clearly show Mr, Barrett's bandaid remedy to the hole in the wall o:f merely placing jacks within select areas of the hole (Exhibits P9 and P10). The Board finds the testimony of the Borough to be substantial -16- " -. and compelling, and it is clear that the Subject Property violates PH-302.3 in that the wall is not maintained free or deterioration and there is a serious question as to whether the wall where the hole is located can sarely bear the load. Additionally, the Subject Property is in violation of PH-302.5 because of the undisputed evidence of the hole in the wall and the loose and breaking bricks. Hr. Barrett, in an argument that appears to admi t the technical violations of SPH-302.5 and PH- 302,3, offers his expert witness to suggest that there is no imminent threat of failure of this wall. The testimony of Hr, Barrett's expert witness on this issue is not convincing. The testimony of the Borough's witnesses verifies that there has been consistent deterioration of the hole in the wall over the past few years. It is clear that the Subject Property is damaged, decaying and structurally unsafe and that the foundation is so unstable that collapse is likely. Although the Board is not in a position to predict the exact date of collapse for this wall, the Board is satisfied that the testimony and exhibits verify that the likelihood of the collapse of this wall is certainly greater than the likelihood of the collapse of a normal well maintained building wall and that this additional likelihood of collapse renders the property dangerous to the life, health and safety of the occupants of the structure and the public. -17- -, ELEC'l'.RIC: SERvrC!l The Borough suggests that the Subject Property i. La violation at SPH-602.3 because the degradation ot the wall which supports the electrical service system constitutes a hazard to the occupants. Further deterioration ot the wall with movement ot the brick or collapse ot the wall creates a shock hazard or the possibility ot a fire. The electrical syste lor the Subject property is located directly at the site at the hole in the vall and is readily visible in Exhibit PlO. Hr. Graubard testitied that the integrity of the electrical system is jeopardized becaus. ot the lack of fir.m mounting of the syste where the brick surrounding the mounting is deteriorating and loose. It is clear that the location of the electrical syste and the lack ot a loundation because of its proximity to the hole in the wall renders the electrical system to be a hazard to the lite, health, prop.rty and safety of the occupants of the preises or the public. ROOF AND DRAINAGE: PROBLEMS The third code violation that the Borough alleges is a violation of SPH-302,6 which requires that roof and flashing be sound so that rain may not be admitted and roof drainage shall be adequate to prevent dampness and deterioration in the walls and root water shall not create a public nuisance. On this is.ue, the Borough'. testimony suggested that the drain pipes were inadequate -18- -' to service the property and were in fact creating a public nuisance by the risk of ice forming on the sidewalks adjacent to the property, The Borough's testi1llony on that issue was unconvincing and was not such that the Board was satisfied that the Borough has met its burden of proving that the deteriorated downspouts create a situation that merits a condemnation order.' The problems with the roof are of a different magnitude than the problems with the downspouting and rain gutters. The testimony from the Borough witnesses' along with the evidence submitted (Exhibit P19 through P23) clearly indicated that there were holes in the roof of the Subject Property and that these holes were capable of admitting rain. Hr. Barrett admitted in his testimony that water and moisture is admitted into the interior of the structure (N.T, 181). Hr. Barrett's testimony suggested that the subject Property was not used for human habitation but was used by him for storage or a workshop, The Borough is not in a position to verify that fact nor is the Borough in a position to limit at this time Hr, Barrett's use of the property. Accordingly, for purposes of evaluating the code violations that. -19- , The malfunctioning and deteriorated downspouts and gutters may certainly be a technical violation of the Boca Code Ordinance and subject the Property Owner to fines. However, this violation does not rise to the level that would merit an order directing abandonment of the property, -- are alleged and their interactiau with SPH-I05 relating to the condemnation procedures, the Board IlUlIt allllWle that 1Ir. Sarrett has the ability to occupy the Subject Property au a re.idential basis himself or by tenants or be ll.ight ulle the property lIuch that he or other individuals would be axpOlled to the weather by their use of the area of the property where the rain water is gaining entry, There are holell in the roof of the building which allow rain water to enter into the building. Clearly, a structure that has holes in the roof and allow. rain water and snow to enter into the property is a structure tbat 1.. unfit tor human occupancy and, ror that rsason, would be a danger to the occupants or the structure. Also, the rain infiltration into the structure would cause risk of shorting or fire with the electrical system in the structure with such ri.k po.ing a danger to the occupants or the structure or to adj acent property owners. BROKEN WINDOWS AND DOOR FRAMeS The Borough also suggested in its December 14, 1993 ~nforcament Notice that there were broken windowll on the property. Although the evidence clearly indicates the existence ot broken windows, the Borough has railed in its burden at damonlltrating that this particular code violation renders the Subject Property to be an unsare structure, IV, CONCLUSIaNS OJ' LAW' The Board makes the following conclusions ot law: -20- _. A. The Board has jurisdiction over the Appeal in this case by virtue of the appropriate ordinlllJces of the Borougb. B. The Subject Property is in violation of SPH-302.3 IIlJd SPH- 302.5 of Borough Ordinance 1681 because of the hole in the wall at the Subject Property. c. The hole in the wall at the Subject Property renders the building to have an unstable foundation with the result that partial or complete collapse of thlJ building is likely witbin a reasonable period of time such that the structure is found to be dangerous to the life, health, property or safety of the public or any occupants of the structure. D. The electrical system at the Subject Property is in violation of SPH-601.3 of Borough ordinance 1681. E. The electrical system at thlJ Subject Property with its proximi ty to the hole at the property renders the system to be in such disrepair and of such a condition that it is a potential hazard to the life, health, property or safety of the public or occupants of the property because of the imminent threat of shock or fire associated with the electrical system. F. The Subj ect Property is in violation of SPH-302. 6 of Borough Ordinance 1681 where the roof of the property is not sound and tight and does admit rain. G. The violation of SPH-302.6 renders the Subject Property to be an unsafe structure in that the allowance of rain and other -21- " . -. e18Jllents into the property is dangerous to the life, lIealth, property or safety of any of the occupants of tlJe property. H. 'l'he deteriorated downspouts and rain gutters and tlJe broken windows at the Subject Property do not render the Subject Property unsafe to the occupants or to tlJe public. v, ORDER 'l'he Consolidated Board of Appeals of tlJe Borough of Carlisle hereby orders as follows: A. 'l'he Appeal of Robert H. Barrett to the December 14, 1993 Enforcement Notice issued to Hr. Barrett for property at 25 North Bedford Street, Carlisle, Cumberland County, Pennsylvania is denied in part and sustained in part. B. 'l'he allegations contained in subparagraph 3 of the December 14, 1993 Enforcement Notice as those allegations relate to deteriorated downspouts and gutters and paragraph 4 as the allegation relates to broken windows are stricken fram the Enforcement Notice. C. In all other respects, the Enforcement Notice dated December 14, 1993 is ratified and affizmed. DA'l'B APYL~a.~~/~994 /Ralph -22- ROBERT H, BARRETT, Petitioner , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA , , , , v, : NO. 94-2346 CIVIL 'lERM , , CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondent CIVIL ACTION - LAW , , . , , , NOTICE TO PLEAD TO: Consolidated Board of Appeals Borough of carlisle 53 West South street Carlisle, PA 17013 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Appeal From Final Adjudication Under Local Agency Law or a Default Judgment may be entered against you, Ii BRENNEMAN, p, C, By: ClAP ~tMc- KeJ.th 0, Brenneman, Esqu re 44 W, Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Petitioner Robert H, Barrett Date: May 3, 1994 LAW O,...,CCI SNELBAKER " BRENNEMAN EXHIBIT D OBERT H, BARRETT, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2346 CIVIL TERM CIVIL ACTION - LAW , , , , v, ONSOLIDATED BOARD OF APPEALS, : OROUGH OF CARLISLE, Respondsnt , , , , , , , bPPEA~ :o~g,NAL AD.TUDICATION D L AGENCY LAW 1, petitioner Robert H, Barrett is an adult individual residing at 134 East High street, carlisle, cumberland county, pennsylvania, 2, Respondent is the consolidated Board of Appeals, Borough of carlisle ("BOard"), a local governmental agency of the Borough of Carlisle with a mailing address of 53 west south street, carlisle, cumberland county, pennsylvania, 3, This court has jurisdiction of an appeal from a final adjudication of the Board pursuant to Local Agency LaW, 2 Pa,C,S,A, S 752 and 42 pa,C,S,A, S 933(a)(2), 4, petitioner is the owner of a property with improvements thereon consisting of a garage/warehouse structure (the "property") located in the Borough of carlisle, commonly known and numbered as 25 North Bedford street, Carlisle, pennsylvania, LAW O,,'ICU SNELBAKER . 8RENNEMAf~ 5, By letter dated December 14, 1993 the Zoning Officer and Chief Code Enforcement Officer for the Borough of carlisle ("Borough") notified Petitioner that the property was purportedlY in violation of the Borough's property maintenance code and adjudged the Property unfit for use or occupancy, A true and correct copy of the letter of December 14, 1993 is attached hereto and incorporated by reference herein as "EXhibit A", 6, In accordance with the directions contained in the letter of December 14, 1993, Petitioner sought modification or withdraw of the Notice by timely filing a Notice of Appeal with the Board on December 28, 1993, A true and correct copy of Petitioner's Notice of Appeal filed December 28, 1993 is attached hereto and incorporated by reference herein as "Exhibit B", 7, A hearing on Petitioner's Notice of Appeal was held before the Board on January 18, 1994 at which hearing Petitioner and the Borough of Carlisle were represented by counsel, 8, The aforementioned hearing held on January 18, 1994 was stenographically recorded. 9, On April 12, 1994 the Board publicly announced and issued its adjudication in writing, which adjudication sustained in part and denied in part petitioner's appeal of the Borough's enforcement Notice, A true and correct copy of the Board's LAW O""'C~S SNELBAKER .. BRENNEMAN -2- adjudication of April 12, 1994 is attached hereto and incorporated by reference herein as "Exhibit cn, 10, The Board's adjudication is not in accordance with the law in that: a, the Board lacks subject matter jurisdiction to hear Petitioner's appeal; b, the BOCA National Property Maintenance Code as adopted and revised by the Borough failed to properly provide provisions for the appeal of an enforcement Notice; c, the Board was never given authority to review matters involving the Borough's property maintenance code; d, the Board permitted the taking of property rights without adequate and just compensation; and e. the Board exceeded the scope of its purported authority and jurisdiction by finding various alleged violations of the BOCA National property Maintenance Code by Petitioner which were unrelated and/or irrelevant to a determination of whether condemnation was proper in this case, (See e.g. Conclusions of Law B, D and G, Exhibit C, p. 21) 11, The Board's adjudication is not in accordance with law and the BOCA Property Maintenance Code is unconstitutional in that it relies upon a vague standard or definition in determining that a structure on a property is unsafe on the basis that partial or complete collapse is "likely", LAW o,.,.lcrs SNELBAKER " BRENNEMAN -3- 12. The Board's adjudication is not supported by substantial evidence with regard to the following findings of fact and/or conclusions: a, Finding of Fact 8,A., that the northwest wall of the structure on the Property showed signs of degradation (Exhibit C, p. 5); b, That the Property is damaged, decaying and structurally unsafe, that the foundation is so unstable that collapse is likely (EXhibit C, p, 17, 21); c, That the electrical system is a hazard or potential hazard to life, health, property and safety of the occupants or the public (Exhibit c, p. 18, 21); d, That the structure on the property was used by Petitioner in any way other than for stor- age or a workshop (Exhibit C, p, 19-20); e, That the structure on the Property is unfit for human occupancy and is a danger to its occupants or the public (Exhibit c, p. 20, 21); and f, That the condition of the roof of the structure and the absence of gutters and downspouts renders the structure unsafe or a hazard to life, health or property, 13. The adjudications and the Conclusions of Law A, through G" inclusive therein, for the reasons set forth above, are all arbitrary, capricious, contrary to law and evidence and an abuse of discretion by the Board, WHEREFORE, Petitioner Robert H, Barrett requests this Court to: (1) reverse the adjudication and the Order of the LAW a,Plers SNEL8AKER a BRENNEMAN -4- Consolidated Board of Appsals dated April 12, 1994 to the extent it denied the appeal of Robert H. Barrett; and (2) deny the enforcement Notice dated December 14, 1993 in its entirety, Respectfully submitted, SNELBAKER , BRENNEMAN, P. C, By: ,''I , CU (J -.. ; "'511hM- ,,-.. Ke th o. Brenneman, Esqu re 44 w. Main street Mechanicsburq, PA 17055 (717) 697-8528 Attorneys for Petitioner Robert H. Barrett Date: May 3, 1994 LAW O"lce' SNELBAKER a BRENNEMAN -5- VERIFICATION I verify that the statements made in the foregoing Appeal are true and correct, I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 54904 relating to unsworn falsification to authorities, -e.w +I.~oMiII- Robert H. Barrett Date: May 2, 1994 ,,",W o,.,.,cca SNELBAKER a BRENNEMAN CERTIFICATE OF SERVICE I, KEITH 0, BRENNEMAN, ESQUIRE, hsreby certify that I have, on ths beloW date, caused a true and correct copy of the foreqoinq Appeal to be served upon the person and in the manner indicated below: FIRST CLASS MAIL. POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Edward L, schorpp, Esquire 36 South Hanover street Carlisle, PA 17013 Hubert X, Gilroy, Esquire 4 North Hanover street Carlisle, PA 17013 / __7 /it ?'1, '1t~U,1U"- Ke1th 0, Brenneman, Esquire SNELBAKER & BRENNEMAN, p, C, 44 West Main street p, 0, BoX 318 Mechanicsburq, PA 17055 (717) 697-8528 Attorneys for Petitioner Robert H, Barrett Date: May 3, 1994 LAW OFFICII SNELBAKER .. BRENNEMAN BOROUGH OF CARLISLE "Committed To Excellence In Community Serllice" April 12, 1994 Robert Barrett 134 East High street Carlisle, PA 17013 RE: Order of CODdemnatioD 25 North Bedford street carlisle, PA 17013 Dear Mr, Barrett: By notice to you dated December 14, 1993, I adjudged your premises at 25 North Bedford street, Carlisle, pennsylvania, to be unfit for use or occupancy under the identified property maintenance code violations, A copy of that letter is attached to this order and incorporated herein by reference. You failed to take the corrective action required in said notice, ie, you failed to secure a building permit within twenty-one (21) days of your receipt of that Notice and you failed to make the required repairs within sixty (60) days of that date, I therefore issue an Order of Condemnation, This Order is effective immediately, I order you to close up the structure, vacate the same, and cease all use, occupancy or residency of the same immediately, Further, the electric service to the property shall be placed out of service, You are advised that section PM-107,2 [prohibited use] of the BOCA Property Maintenance Code, as adopted by the Borough of carlisle in Chapter 183 of the Code of the Borough of Carlisle, states as follows: Any person who shall occupy a placarded premises or structure or part thereof, or shall use placarded equipment, and any owner or any person responsible for the premises who shall let anyone occupy a placarded premises shall be liable for the penalties provided by this Code, Penalties may consist of a fine of not less than $50,00 nor more than $300,00, or imprisonment for a term not to exceed thirty (30) days, or both, at the discretion of the Court, Each day that a violation continues shall be deemed a separate offense, I do not believe the structure is vacant in that I have observed contents in the interior of the structure, and you have EXHIBIT E 53 West South Street, Carlisle, PA 17013 TeL (717) 2-19-4422; FAX (717) 2,\9-5587 'Robert Barrett April 12, 1994 page 2 been observed utilizing the premises, Should the structure be vacant, and upon placement of a Placard of Condemnation upon the structure, you are ordered to close-up the premises within forty-eight (48) hours of such placarding or I shall cause the premises to be closed in the manner permitted by law. Any cost in connection therewith may be charged as a lien upon the real estate. You have the right to seek modification or withdrawal of this Order by filing a written Notice of Appeal with the Board of Appeals within ten (10) days after your receipt of this Order, Such Appeal must be accompanied by the required filing fee as the same is established by law, Such Appeal must be received by the Code Enforcement Department of the Borough of Carlisle within such time period. Appeal applications are available at the Borough's Code Enforcement Office at 53 West South street, Carlisle, Pennsylvania 17013, This Order does not supersede, modify or in any way invalidate any prior Notices, Orders or proceedings involving referenced premises, s:t'SrL- ) Scott D. Gra~~rd Zoning Officer & Chief Code Enforcement Officer SDG:skg Enclosure .. ROBERT H, BARRETT, Petitioner . , , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA , , v, : NO. BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, : BOROUGH OF CARLISLE, Respondents , , CIVIL ACTION - EQUITY , , , , NOTICE TO DEFEND You have been sued in court, If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with a court your defenses or objections to the claims set forth against you, You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff, You may lose money or property or other rights important to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Court Administrator One courthouse Square Carlisle, Pennsylvania 17013-3387 (717) 240-6285 ENNEMAN, p, C, By: A LAW O,.,.CE. SNELBAKER a BRENNEMAN EXHIBIT F ROBERT H, BARRETT, plaintiff , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, v, , , : BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, : BOROUGH OF CARLISLE, Defendants : CIVIL ACTION - EOUITY , , , . COMPLAINT Plaintiff Robert H, Barratt by his attorneys, Snelbaker & Brenneman, p, C, files this complaint and in support thereof states the following: 1, Plaintiff Robert H, Barrett is an adult individual residing at 134 East High street, carlisle, cumberland County, Pennsylvania, 2, Defendant is the Consolidated Board of Appeals, Borough of Carlisle ("Board"), a local governmental agency of the Borough of Carlisle with a mailing address of 53 West South street, Carlisle, Cumberland County, Pennsylvania, 3, Defendant Consolidated Board of Appeals, Borough of arlisle, ("Board") is a local governmental agency of the Borough f Carlisle with an address of 53 West South Street, Carlisle, umberland county, Pennsylvania, LAW O"ICI:'I SNELBAft:ER a BRENNEMAN 4, Plaintiff is the owner of a property with improvements hereon consisting of a garage/warehouse structure (the LAW OP"I"ICC. SNELBAKER .. BRENNEMAN "Property") located in the Borough of Carlisle, commonly known and numbered as 25 North Bedford street, Carlisle, Pennsylvania, 5, By letter dated December 14, 1993 the Zoning Officer and Chief Code Enforcement Officer for the Borough of Carlisle ("Borough") notified Plaintiff that the Property was purportedly in violation of the Borough's property maintenance code and adjudged the Property unfit for use or occupancy, A true and correct copy of the letter of December 14, 1993 is attached hereto and incorporated by reference herein as "Exhibit A", 6, In accordance with the directions contained in the letter of December 14, 1993, Plaintiff sought modification or withdraw of the Notice by timely filing a Notice of Appeal with the Board on December 28, 1993, A true and correct copy of Plaintiff's Notice of Appeal filed December 2B, 1993 is attached hereto and incorporated by reference herein as "Exhibit B", 7, A hearing on Plaintiff's Notice of Appeal was held before the Board on January 1B, 1994 at which hearing Plaintiff and the Borough of Carlisle were represented by counsel, 8, The aforementioned hearing held on January 18, 1994 was stenographically recorded, -2- 9, On April 12, 1994 the Board publicly announced and issued its adjudication in writing, which adjudication sustained in part and denied in part Plaintiff's appeal of the Borough's enforcement Notice, A true and correct copy of the Board's adjudication of April 12, 1994 is attached hereto and incorporated by reference herein as "Exhibit C", 10, On May 3, 1994 plaintiff filed an Appeal From Final Adjudication Under Local Agency Law with this Court docketed to No, 94-2346 Civil Term, thereby appealing the aforementioned adjudication of April 12, 1994, A true and correct copy of the Appeal, without exhibits thereto, is attached hereto and incorporated by reference herein as "Exhibit D", 11, On April 12, 1994, immediately upon public announcement by the Board of its adjudication, the Borough served upon Plaintiff a purported Order of Condemnation ordering plaintiff to, inter alia, vacate the property, close up the structure and cease all use, occupancy and residency of the Property immediately, Said order of Condemnation was issued as a direct result of the adjudication of the Board on April 12, 1994, A true and correct copy of the Order of condemnation dated April 12, 1994 is attached hereto and incorporated by reference herein as "Exhibit E", LAW OF "ICE:. SNELBAKER a BRENNEMAN -3- 12, Plaintiff has timely filed a Notice of Appeal with the Board respecting the April 12, 1994 Order of Condemnation in accordance with the directions contained therein for purposes of preserving his rights thereunder, 13. Plaintiff utilizes the Property in question to store tools, materials and equipment which Plaintiff uses to repair, maintain and renovate the various properties he owns within the Borough of Carlisle, which properties include apartments presently leased and occupied by tenants of Plaintiff, 14, After April 12, 1994 on a date unknown by Plaintiff, the Borough placed placards of condemnation on Plaintiff's property, 15, As a result of the decision by the Board on April 12, 1994, the Borough has proceeded with condemning the Property although the time for an appeal from the Board's adjudication had not passed and in fact an appeal from that adjudication has been taken, LAW O,.'ICa:1 SNELDAKER a BRENNEMAN 16, By threatening Plaintiff with criminal prosecution and excluding Plaintiff from the Property, the Borough has caused irreparable damage to Plaintiff in that he is unable to gain access to the tools, materials and equipment stored on the Property, As a result, Plaintiff has been caused to expend sums of money for items and materials necessary to repair and maintain his various properties which he would not otherwise need to -4- . , . purchase if he had access to the Property. 17. By the Borough proceeding to deny plaintiff access to the Property pending his appeal from the April 12, 1994 adjudication, the well-being of Plaintiff and Plaintiff's tenants is at jeopardy and they are subject to irreparable injury due to plaintiff's inability to properly maintain and keep habitable his leased properties. 18. By requiring the Property be vacant yet placarded, the Borough is making the property attractive to trespassers and others, all at the risk of loss and liability of the plaintiff. 19. The proceeding giving rise to the adjudication of April 12, 1994 indicated that the public is not subject to substantial or immediate harm due to the present condition of the property. Accordingly, the issuance of relief in this case in the nature of an order staying any further condemnation action or proceeding by the Borough and the Board concerning the Property would not substantially harm other interested parties or adversely affect public interest. 20. The Borough and the general public will not suffer an appreciable injury if the requested relief is issued because the status quo between the parties will be restored to where it was LAW O,.,.ICt, SNELBAKER a BRENNEMAN before the Borough'S efforts of condemnation were undertaken. 21. plaintiff'S right to relief is clear and greater injury I I -5- . . . . . would result to him and his tenants by refusing the injunctive relief requested herein than by granting it. 22. Plaintiff has no adequate remedy at law to redress the condemnation proceeding by the Borough pending the resolution of this Appeal. WHEREFORE, Plaintiff Robert H. Barrett requests this Court to: A. Issue an Order enjoining the Borough of Carlisle from taking any further action to condemn, placard and lock the property and to deny Petitioner access thereto pending resolution of the Appeal docketed to No. civil 1994; B. Issue an Order enjoining the Consolidated Board of Appeals, Borough of Carlisle from hearing and acting upon the Order of Condemnation issued April 12, 1994 pending resolution of the Appeal from its adjudication of April 12, 1994; C. Issue an Order directing the placards of condemnation be removed by the Borough of Carlisle from the property; and D. Grant any other relief which this Court deems just and proper. By: ~~,p,c, Keith O.Brenneman, Esquire Pa. 1.0. No. 47077 44 West Main street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Petitioner Robert H. Barrett LAW o,.,.ca::. SNEL.BAKER a BRENNEMAN Date: May 2, 1994 ROBERT H. BARRETT, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2434 EQUITY TERM . . . . v. . . . . : BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents . . : CIVIL ACTION - EQUITY . . . . : ANSWER OF DEFENDANT BOROUGH OF CARLISLE TO PLAINTIFF'S PETITION FOR INJUNCTIVE RELIEF NOW COMES the Borough of carlisle, by and through its solicitor, Edward L. Schorpp, Esq., and answers Plaintiff's Petition for Injunctive Relief as follows: 1. - 4. Admitted. 5. This averment is generally admitted, excepting that the notification set forth that the property was in violation. Borough denies that the property was .purportedly. in violation. 6. - 9. Admitted. 10. Admitted. 11. This averment is generally admitted, excepting that the Borough served an Order of Condemnation on Petitioner. Borough denies that the Order was a .purported. order. 12. - 13. Admitted. 14. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 15. Admitted. 16. Admitted in part and denied in part. It is admitted that the Borough has proceeded with condemning the property. The ..' remaining averments are conclusions of law, excepting that Borough admits that an Appeal from the April 12, 1994, Board adjudication has been taken. 17. Denied. Borough has not threatened Petitioner with criminal prosecution. On the contrary, Borough has, on various occasions, prosecuted Petitioner for code violations. Barrett has been convicted for code violations with respect to the premises at both the district justice level and by the Court of Common Pleas of Cumberland county. It is admitted that Borough has ordered Petitioner from the premises. It is denied that Borough has oaused irreparable damage to the Petitioner, such averment being a conclusion of law requiring no answer herein. To the extent that answer is required, Borough has properly condemned the premises and any damage resulting therefrom is due to the sole fault and neglect of Petitioner in failing to properly maintain the premises. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of this paragraph and the same are therefore denied. 18. Denied. The averments of this paragraph are conclusions of law requiring no answer herein. To the extent that answer is required, it is denied that Borough has in any manner placed the well-being of petitioner and/or any tenants of petitioner at jeopardy. On the contrary, to the extent that Petitioner and/or any of his tenants are at jeopardy, which is denied, the same has been caused solely by the fault ~nd neglect 2 . , of Petitioner in failing to properly maintain his premises according to code requirements. As is set forth in the preceding paragraph, Borough denies that Petitioner has suffered any irreparable harm or injury. At all times relevant herein, petitioner has the ability to maintain his premises by making appropriate contracts with building trades contractors. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the remaining averments of this paragraph and the same are therefore denied. 19. Denied. The averments of this paragraph are conclusions of law requiring no answer herein. To the extent that answer is required, any risk of loss and/or liability of Petitioner is due to his sole fault and neglect in failing to maintain the premises. All of the Borough's actions have been reasonable in protecting the public health, safety and welfare. 20. The averments of this paragraph are conclusions of law requiring no answer herein. By way of further answer, it is denied that the described proceeding indicated that the public is not subject to substantial or immediate harm due to the condition of the property. The public is subject to substantial harm because of the deficient structural condition of the premises. The public interest, and the health, safety and welfare of the community, would be substantially affected should injunctive relief be granted. 21. This averment is a conclusion of law requiring no answer herein. 3 22. This averment is a conclusion of law requiring no answer herein. 23. This averment is a conclusion of law requiring no answer herein. See paragraph number 25 herein for further answer. 24. The averments of this paragraph are conclusions of law requiring no answer herein. By way of further answer, Respondent Borough avers the following: 25. Defendant Borough asserts that this Honorable Court has no jurisdiction to hear the within Petition because Petitioner has [a] full, complete and adequate remedy[ies] at law in that any harm suffered by Petitioner or to be suffered by Petitioner, all of which is denied, can readily be compensated in monetary damages. 26. This Court lacks jurisdiction over the within Petition because Petitioner has an adequate statutory remedy at law under the local agency law, 2 Pa.C.S.A. ~ 101, et.sea., and Petitioner has failed to exhaust the same. 27. There is attached hereto and incorporated herein as Exhibit "A" a true and correct copy of preliminary objections filed by Borough to Plaintiff's complaint in equity. 28. Petitioner has unclean hands in the within matter in that: (a) he has deliberately and/or negligently tailed to adequately maintain the premises which are the 4 subject of this action, whereby the same have become deteriorated and dilapidated over a long period of time, all in violation of the Borough's property maintenance code; (b) Petitioner has been convicted on various occasions for violations of the Borough's property maintenance code for the conditions which are the subject matter of the within action; (c) Petitioner owns other properties in the Borough which he is similarly allowing to become run-down and in disrepair, all in violation of the Borough's property maintenance code; (d) Petitioner has made prior promises to repair the premises, but has failed to perform any repairs whatsoever; and (e) Petitioner is not and has not been duly licensed to perform any plumbing repairs to any premises other than his personal residence, is unqualified to perform electrical repairs, and, to the extent that he has performed either of the same, he is in violation of lawful Borough ordinances. 29. Petitioner has not suffered, and will not suffer, irreparable harm or injury by the actions of Borough in condemning his premises. 30. Petitioner has no clear right to equitable relief because the unsafe and dilapidated condition is obvious and 5 . ,. .." CERTIPICATE OP SERVICE I hereby certify that a copy of the foregoing document, ANSWER OF DEFENDANT BOROUGH OF CARLISLE TO PLAINTIFF'S PETITION FOR INJUNCTIVE RELIEF was served this date by depositing same in the Post Office at carlisle, pennsylvania, FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Keith O. Brenneman, Esq. snelbaker & Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 Hubert X. Gilroy, Esq. Broujos, Gilroy & Houston, P.C. Four North Hanover Street Carlisle, PA 17013 LANDIS, BLACK & SCHORPP BY~~<~ Edward L. Sc orp , Esq. Landis, Black & Schorpp Solicitor, Borough of Carlisle 36 South Hanover Street carlisle, PA 17013 (717) 243-3727 Date: A?;H'YS1/99-9 ..' "4 . . ROBERT H. BARRETT, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2434 EQUITY TERM . . . . v. : . . BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Defendants . . . . CIVIL ACTION - EQUITY : PRELIMINARY OBJECTIONS OF DEFENDANT BOROUGH OF CARLISLE NOW COMES, the Borough of Carlisle, by and through its solicitor, Edward L. Schorpp, Esq., who files the following Preliminary Objections to Plaintiff's Complaint: QUESTION OF JURISDICTION 1. This Court lacks jurisdiction in this matter as Plaintiff has a full, complete and adequate non-statutory remedy at law. 2. Pa.R.C.P. 1509(c) requires this jurisdictional question to be raised by Preliminary Objection. 3. Plaintiff has failed to exercise or exhaust a statutory remedy available under the Pa. Local Agency LaW, 2 Pa.C.S.A. ~ 101, ~. gm. 4. Pursuant to Pa.R.C.P. 1509(b), the failure to exercise or exhaust a statutory remedy shall be raised by Preliminary Objection. WHEREFORE, Defendant Borough of Carlisle demands that Plaintiff's Complaint be dismissed, and further, that Plaintiffs' Petition for Injunctive Relief similarly be dismissed. LANDIS, BLACK & SCHORPP By: Edward L. Schorpp, Esq. 36 South Hanover street carlisle, PA 17055 (717) 243-3727 Attorney No. 17495 Attorney for Defendant Borough of carlisle EXHIBIT A . " . ' . . ROBERT H. BARRETT, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2434 EQUITY TERM v. BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Defendants CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document, PRELIMINARY OBJECTIONS OF DEFENDANT BOROUGH OF CARLISLE was served this date by depositing same in the Post Office at Carlisle, pennsylvania, FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Keith O. Brenneman, Esq. Snelbaker & Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 Hubert X. Gilroy, Esq. Broujos, Gilroy & Houston, P.C. Four North Hanover Street Carlisle, PA 17013 LANDIS, BLACK & SCHORPP By: Edward L. Schorpp, Esq. Solicitor, Borough of carlisle Landis, Black & Schorpp 36 South Hanover Street Carlisle, PA 17013 (717) 243-3727 Date: ~i ~~11 ~I~! ~ ~~ ~ iilB ::0:: od: "'::I'" CT'J ,. - ..;;~ \, ,,'-' ~ J " .t ~-t f.:.:... N 0'") <--> - ~, = '" '..' :, :1.: L-:-' '''I . ""j . ~ . I ;'::-:~ . -"-'- , ~'; ~, lIol lIol :j .~ I~ ~ ~~ ~ ~r&. ~ ~~~~ . l1l:;j!l1lllol > ~~~~ ~~~ c:l =~= g13g li!~li! 000 c:lUc:l ~ r&.11l O~ ~~ ~ E-tr&. UO ~ffi oc o i~ S~ ~B P<~ c:l 110 ~ ~ o ~ :I:~- U :S l:len..~ !:!GS~:5 t:~O~ o u ~ ~ ~ ~ ~; en 5l '" ... .. :J t:l '" ~ z ~ < o-l . = a ~ " " ROBERT H. BARRETT, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2434 EQUITY TERM . . BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Defendants . . CIVIL ACTION - EQUITY . . . . PRELIMINARY OBJECTIONS OF DEFENDANT BOROUGH OF CARLISLE NOW COMES, the Borough of Carlisle, by and through its solicitor, Edward L. schorpp, Esq., who files the following Preliminary Objections to Plaintiff's Complaint: QUESTION OF JURISDICTION 1. This Court lacks jurisdiction in this matter as Plaintiff has a full, complete and adequate non-statutory remedy at law. 2. Pa.R.C.P. 1509(c) requires this jurisdictional question to be raised by Preliminary Objection. 3. Plaintiff has failed to exercise or exhaust a statutory remedy available under the Pa. Local Agency Law, 2 Pa.C.S.A. S 101, ~. sea. 4. Pursuant to Pa.R.C.P. 1509(b), the failure to exercise or exhaust a statutory remedy shall be raised by Preliminary Objection. WHEREFORE, Defendant Borough of Carlisle demands that Plaintiff's Complaint be dismissed, and further, that Plaintiffs' Petition for Injunctive Relief similarly be dismissed. LANDIS, BLACK & SCHORPP BY:~~~/~ Edward L. Schorpp, Esq. 36 South Hanover Street Carlisle, PA 17055 (717) 243-3727 Attorney No. 17495 Attorney for Defendant Borough of Carlisle v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2434 EQUITY TERM ROBERT H. BARRETT, Plaintiff BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Defendants . . CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document, PRELIMINARY OBJECTIONS OF DEFENDANT BOROUGH OF CARLISLE was served this date by depositing same in the Post Office at Carlisle, Pennsylvania, FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Keith O. Brenneman, Esq. Snelbaker & Brenneman, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 Hubert X. Gilroy, Esq. Broujos, Gilroy & Houston, P.C. Four North Hanover Street Carlisle, PA 17013 LANDIS, BLACK & SCHORPP BY'~~~~ Edward L. Schorpp, E q. Solicitor, Borough of Carlisle Landis, Black & Schorpp 36 South Hanover Street Carlisle, PA 17013 (717) 243-3727 Date: ~~r ~ /~ ROBERT H. BARRETT , . IN THE COURT OF COMMON PLEAS OF . Petitioner . CUMBERLAND COUNTY, PENNSYLVANIA . . . v. . NO. 94-2434 EQUITY TERM . . . CONSOLIDATED BOARD OF APPEALS, . CIVIL ACTION - EQUITY . BOROUGH OF CARLISLE, : Respondent . . ORDER AND NOW, this t ~ day of .::1'........ , 1994, upon consideration of the Motion To Quash Notice To Produce, a hearing, is scheduled thereon pursuant to Pa.R.C.P. 234.4(b) for the l' day of iTVIo.A... at I: 00 o'clock P.M. in Courtroom No. -{ , Cumberland County Courthouse, Carlisle, Pennsylvania. Movant shall serve certified copies of this Order upon all parties, or their counsel of record where applicable, forthwith. BY THE COURT: /l J. LAW O,.,.CCI SNELBAKER a BRENNEMAN 4. The underlying action in which the Borough seeks to compel the production of documents involves a request by Robert H. Barrett to have this Court issue an order enjoining the Borough and the Consolidated Board of Appeals from acting upon or taking any further action upon an Order of Condemnation issued April 12, 1994 respecting Robert H. Barrett's real property pending resolution of the appeal from the Consolidated Board of Appeals' adjudication of April 12, 1994. 5. Robert H. Barrett in the underlying action claims that he and his tenants are subject to irreparable harm due to his inability to have access beginning April 12, 1994 to a warehouse/garage structure that stores tools, materials and equipment used for maintenance and repairs of his rental properties. (See Complaint, Paragraphs 13, 14, 16 and 17.) 6. The Notice to Produce compels the production of documents spanning a five year time period. Due to the limited period of time that the Order of Condemnation has been in effect (beginning April 12, 1994), which period of time is the only time period relevant to the underlying action, the Notice to Produce subjects Robert H. Barrett to unreasonable annoyance, oppression, burden and expense. LAW O,.'ICII SNELBAKER Be BRENNEMAN 7. The Notice to Produce compels the production of state and federal income tax returns and schedules for a five year -2- period. Such documents are irrelevant to the subject matter of this action, not reasonably calculated to lead to admissible evidence and would contain duplicative information. Accordingly, their production subjects Robert H. Barrett to unreasonable annoyance, oppression, burden and expense. WHEREFORE, Robert H. Barrett requests this Court to (1) schedule a hearing on this Motion; and (2) quash the Notice to Produce. Respectfully Submitted, By: Ke th o.Brenneman, Esqu re 44 West Main street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Petitioner Robert H. Barrett Date: June 2, 1994 UW O'FlCI. SNELDAKER 8< BRENNEMAN -3- c. 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 Motion to be served upon the persons and in the manner indicated below: FIRST CLASS MAIL. POSTAGE PREPAID. ADDRESSED AS FOLLOWS: Edward L. Schorpp, Esquire 36 S. Hanover Street Carlisle, PA 17013 Hubert X. Gilroy, Esquire 4 North Hanover Street Carlisle, PA 17013 Ke th O. Brenneman, Esqulre SNELBAKER & BRENNEMAN, P. C. 44 West Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Petitioner Date: June 2, 1994 uw onrlCU SNELBAKER & BRENNEMAN ROBERT H. BARRETT, Petitioner . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2434 EQUITY TERM . . v. . . . . BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents . . . . CIVIL ACTION - EQUITY : . . NOTICE TO PRODUCE To Robert H. Barrett and Keith O. Brenneman, Esq., his attorney: You are directed to produce the following: all leases, maintenance records, purchase receipts, repair invoices, federal and state income tax returns, federal and state income tax schedules, books of account, ledger sheets, work orders, time sheets and any and all other documents related to the rental, maintenance or repair of any and all real properties owned by you in the Borough of Carlisle, for the period ending June 8, 1994, and commencing five years prior thereto at 36 South Hanover street, Carlisle, Pennsylvania, on or before Tuesday, June 7, 1994, at 1:00 o'clock P.M. If you fail to produce the documents or things required by this notice to produce, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure. Date :$/1)'" J'l'/; ~ LANDIS, BLACK & SCHORPP BY:~~~~ Edward L. Schorpp Solicitor for Borough of Carlisle 36 South Hanover Street Carlisle, PA 17013 (717) 243-3727 EXHIBIT A v. . . . . . . . . . . . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2434 EQUITY TERM ROBERT H. BARRETT, Petitioner BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLE, Respondents . . CIVIL ACTION - EQUITY . . . . . . CERTrFICATE OF SERVICE I hereby certify that a copy of the foregoing document, NOTICE TO PRODUCE was served this date by depositing same in the Post Office at Carlisle, Pennsylvania, first-class mail, postage prepaid, addressed as follows: Keith O. Brenneman, Esq. Snelbaker & Brenneman 44 West Main Street Mechanicsburg, PA 17055 Hubert X. Gilroy, Esq. Broujos, Gilroy & Houston, P.C. Four North Hanover Street Carlisle, PA 17013 LANDIS, BLACK & SCHORPP By ~-~~' Edward L. Schorpp, sq. . Dated:~Y~ /97tt1 I . < , . ,~~l, ..:..;if~~).;'" ~~_ .r,' "-"" .... ..s:.,; ''t.'' :'_ '",,~..;_, . ,,_:-~_ _'" . ,'"~ ...", ':-~:'-'\ :/h~~t~~(:-~'~"-_~ '. . ; ",,'i,.,~:. _',- ',-.'_ _"<_"4:'<"-"l-\""-\'~'~~' '-l ".,_,,;%t:-_'_';:'~l_' ;;l':""'~'l"_"'" \' ,': "';' , ' , ' ~-'i'f"J,,"',\,.;'J,:"'J~'fu ~__'hi '-'., - - ''F''I(', W, "',' 'ft.-. ~ < '.d.b<~~-"i_,,'J~~~A.ii""."'-~\YO ,'" .'-t~W;; , .....~~fI;f}.""J,,',- \ @ -, :~ ' .' " ~ .'; t' "" " /~~~( " ,V'~", ,,'~r', .-.t~b~-'~-' ""',:.>JI- '_ ~'I':_..,c::' .-'-";,.\:-. ,'It.,' . tt-J--'r:' ,'::.;~r:',',' "f'" ", ',.-t ,;,',A "'~ l :;~",'-'-} ""!' 1-' .';' t. i j " ~ ., ",' -fi. " \" , JUH 7 .,., PH '9~ Of r/}f:~:2tFiCE CllH8"j", !,.. I :f\)N?TA~Y I'EI':,,:!,I'J ~(,Ul"r '; ",'''Ylv~~!A II .\i ", <.t '-;.-'" ;t " ;~ '; " ,; .' ~,-,,"--_...... :-_~"""~'~1'"'" ".~--:-~_.-"""'-----------' ~-'" . " , , - .., . . \ ..,~';' . "<'p..- " ROBIRT H. BARRITT, Petitioner IN TRB COURT OF COMMON PLEAS OF v I 1 1 1 1 1 1 I 1 1 CtlMBIRLAND COtlNTY, PENNSYLVANIA CIVIL ACTION - IQUITY NO. 94-2434 BQUITY TBRM CONSOLIDATED BOARD OF APPEALS, BOROUGH OF CARLISLB, Respondent IN RE 1 MOTION TO QUASH ORDBR OF COURT AND NOW, this 7th day of June, 1994, at 1130 p.m., after hearing, the motion to quash is granted. By the Court, Keith O. Brenneman, Bsquire For the Petitioner K:Xn~(!!~. / Bdward L. Schorpp, Bsquire For the Respondent Ibg . i' , . ' ~6, 11\ r: c, '1 r i IirT ROBERT H, BARRETT. Peti tioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF CARLISLE and CONSOLIDATED BOARD OF : APPEALS, BOROUGH OF CARLISLE,: Respondents 94-2434 EOUITY TERM CIVIL ACTION - EOUITY IN RE: PRELIMINARY INJUNCTION QRDflLOf __C OURT AND NOH, this 8th doy of June, 1994, this motter having come before the Court this date, preliminary objections to the Court's Jurisdiction in equity having been filed by the Borough of Carlisle, following argument, the Caurt being satisfied that we do not have jurisdiction, the within petition for a preliminary injunction, IS DISMISSED. By the Court, Edgar!f-Baytey, J. Keith O. Brenneman, EsqUire For Peti tioner Edward L. Schorpp, Esquire For the Borough of Carlisle Hubert X, Gilroy, Esquire For the Consolidated Board of Appeals :prs .'J'i i I .j;: ~~ '911 .I.~ ~ ' '( , "