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Home My WebLink About95-04324 ," J I , ~ G' oJ J ~ c oS I ~ Q e J J IlIl l , Q ~ 1.0 ! r.l I.W Cl; IlIl !!l Cl; Q ~ ~ 0 I.W ... u !:l c: IlIl :> - )1 Cl; 8 ~ ..; Ul a.. u: 9 ,., @ i ~ '2 . IlIl I ~ ~ ;..: .. lfl I.W ~ '" '" ~ e oJ g ... . ... e c:i c:i Ul l:l Ul e ~ 0 ~ ;z ;z u.. -= U v '-' PAGE N>. """ ,.., Amung thc Rccllrd. nnd I'ruc~cdln~' cnru\lc,l in thc cUll,1 uf ('UlllfnUII 1'lclI' in nnd lu, Ihe CIlUIIIY III ____'_'_-',~!.II!!L":.!,J,'.!I!<I_____ ___ ___,no" In Ihc ('ufIlfllunwcullh uf "cnn,ylvnnin No. nl C. n. I'J'/(, III Nil, 9r,-4lliJ.::l.Iu.u.y-1!:illJL.__,..._.... I cnn. I~ ____,..... I, cunlnincd Ihc fu\lllwlng: ('()flY OF ______..._J\IlIX!!!Il!)lI.<:'c.-__._,__ IJOCKfT I'NTRY SHoYER SPRING '1'OWNBIIII' AU'I'1I0111TY VB. Il. THEODORE OPPERMAN ANIl SUSANNA D. POTERA Aug. 14, 1995, Cornr1llint, flied. Aug. 30, 1995, Sheriff's Hetum of 'ler"ke, flied. Aug. 30, 1995, l'raecJpe, filed. Enter my apre"rilnce lln bel1i.ll f of lhl! lJofenclilnta, n. ThelX,lore Oprennan and SusannlJ B. Pot:era, 10 t.lf~ i:lbove-Hti'ltcl<l llctton. By: .John Molndr, Esq. Oct. 16, 1995, ArlHwer and New Matter, filed. Oct. 24, 1995, Reply to New Matter, filed. Oct. 25, 26, 1995, Petition for Preliminary IniuncUon and Order of Court, filed. AND NOlI, this 26th day of October, 1. 'l'l5, urXlIl cons ider;Jtion of the wit n Petit ion for PreliminiirY In:llm(~t: ion and on Ill:ltion of t'he l\t torneYR f()r Petitioner-Plaintiff, it is ordered ilnd tlecrem that i1 heming be held on said pet.itlon on the 'lth dDY ()f November, 199r" ilt :l:OO o'clock p.m., prevai ing time, in Court Rmn No. II of the Clunberlilnd CounLy COllrl: House at Carlisle, Pennsylvanlrl, to cllnsltler t.he iHlJudnce of arpropl'iate prelim,tnary injunctive relief. A certified r.opy of this Order dntl the within peUt ion flhill.l be served by certified mail (return recceipt requc"ted) uJlon the attomey of record for the Defendants. By the Court, Edgar B. Bayley, .J. 45 - 51 Nov. 22, 1995, Opinion and Order of Court, filed. In Re: Petition of Plaintiff for Preliminary Injunction AND NO/I, this 22nd day of November, 199~), the petitIon of p1DintUf for a preliminary injunction, IS DENIED. By the Court, Edgilr B. BilY ley, ,J. 'i2 Nov. 27, 1995, praecire for Listing Cilse for Tdil1, filed. By: Richard C. Snelbaker, Fsq. 53 Dec. 1, 1995, Order of Court, fi.1.ed. AND NO/I, this 1st day of December, l'Wi, IT IS OHDERED THl\'l' an adjudic .. tion in equity in the within CDse sha 11 be held in Courtroon Number 2, at 8:4'i a.m., WednesdDY, December U, 199'i. By the Court, Edgilr B. Bayley, .J. 54 - 'i6 Dec. 13, 1995, Opinion and Decree Nisi, filed. AND NOlI, this 11th nay of f):!cember, [995, IT IS OHDEHF.D, I\D.JUDGED AND DF.CREEDI (1) D. Theodore Oppenniln ilnd SUBilnnil B. Poter", owners of .l7. and 16 East. Main St.reet., New Kinqfltown, Silver SprinC) Township, (1) SHALL connect t the Silver Spdnq Township Immicipill se....'er system, ilnd (2) they are PRall BIT [) frOTl continuing 1:0 utllize t.he clIl"slte septic system at those prorerties. (over) 1 - 8 9- 10 11 12 - 17 18 - 22 23 - 44 -., ,......, (;!) Tile I'roUI'lI\otdIY Blldll !'lItpr 1111... I.','r!"! NI,~I itnd pnlvldp it ,'opy 01 thiB /\,(l,jIKlkntlon ,1ncl \lecren to C'"lnBel. By t'hl1 Court, 1',1<]'11' II. Iklyley, ,I. Dec. 18, 1995, TrmlBcdpl of I'n'llmllldry InlllJ\l'tlon, filed. By t.llo Court, 1',I\Jdr B. 1~lyloy, ,I. Dec. 26, 1995, r-\lt Ion for 1"'}Bt -'l'rlili 1~('ll(>I, fll"l. Dec. 26, 1995, Pmof of Hl!rvko, 1'1I(~1. Dec. 27, 1995, Order of COllrt, fll<.."j. AND NaIl, thiB nth day of Ilnconber, I')')"}, inc"q_,r'll'inq herein the /\,(:I,judkation in supp)rt of the l'klcree Nisi entered on December I '., I'l,)~, ond the opinion of November II, l')lJ<" tllilt WitB incorp)rilled In BUpr_)rt. of that I\djlldicatian, the within Mol Ion for J1oHt-'l'r!nl Relief filed i'lursllilnt to Pennsylvanio Rule of CIvll I'roc,-"llIre :127.1, [H \lENTE\l. The /\,(qudication of December U, and the opInion of November n, adequately address the iBsues raised by defendantB. By the Court:, Edgar B, Bayley, .J. 96 _ 99 Jan. 26, 1996, Notice of ^ppeal, flled. Notice is hereby given that P. Theodore Oppennan and SUBanna B. Patera Defendants above nil/ned, hereby appeal to the Cnn110nwcalth Court of Pennsyl- vania fnxn the Order entered In this matter on the 27th day of DecOOlber, 1'l9,. This Order hns been entered in the docket OB evIdenced by the attached copy of the docket entry. By: .John Molnar, Esq. 104 Feb. 12, 1996, COl111CJnwcnlth Court of Pennsylvilnin Not lee of llocketing Appeal to No. 271, C.P. 1996, filed. 114 Feb. 22, 1995, Plainitff's PetItion for I\djudication of Civil contempt, fU 115 Feb. 27, 1996, Order of Court, filed. AND NaIl, this 27th day of Febnmry, 19%, abs'mt a representatIon by plaintiff thc1t defendants' failure to canply with the final court order issued in thlB court J.s creating an inmedIate health hc1zard, the within petItion to enforce that court order IS STAVED pending the disposition of defendants' pending appeal to the connonwealth Court of Pennsylvania. By the Court, Edgar B. Bayley, .J. ~4 - 56 57 . B8 8'l - lJ3 94 95 ExhibitB " ; , ~, ,~ ..:.1 J ,"; \ ~ 'J I~ c '\ll'~ :- \~ ~f d .~ " , , c=~".,"=,:,,"~='-='--~:,""="="'''=''"'~='''-''_.,,'~..=~~.=,::,..,~C'~C:='=;"-"'''''='';''' --~..- . ,r ~ ~ ~ ~~~ t: ~ ~ 0 < ~ ~ z p.o( 0( "" ~ ~ p.f- '" 'r. !~~ J ~ ~ Z Ilo'," '. u . o .~ H''< " ~; ~ (; ~ lI-lIH ~ ~ $1~H V1 U H ~ I 'I, "/. ~ GEJi:.> ~ .. ~' ,,~ ~ 3 w "- U - c' ,~ ffi ~,~ : ~ " 0.3"' .. z ~ ~ 0 [- ~ Ilo '" O! 0 "Ilo ~ t;..., 0 3 'J ~ .. I f- ~ 00 . ~ ~ Z Ilo ~ 0 :1 Ii! I [3 j H "' ~ l.J ~ p~ . 8el ?:: Ilo 8'" .. < ~ V1 . <Il' 5 ~IH '" og ~ ~~ .~ g ~ i> "" ~~ ~ ,0004 U 4:! - .;:; . ::l V1 Zf,l..O~ .w ~~_~=Z_H V1 "'l/l , -.-----.--.. "'--'-"-'- __._.__.n______._________. lAW r,l1"ICllS 6NILBAl<ER . BRINNEMAN - ...- SILVER SPRING TOWNSHIP AUTHORITY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. 95- '11)7 EQUITY TERM D. THEODORE OPPERMAN and SUSANNA B. POTERA, Defendants CIVIL ACTION - EQUITY COMPLAINT AND NOW comes the plaintiff, SILVER SPRING TOWNSHIP AUTHORITY, by its Attorneys, SNELBAKER & BRENNEMAN, P.C., and avers the following cause of actionl 1. The Plaintiff herein is SILVER SPRING TOWNSHIP AUTHORITY, a body politic, having been created under the Pennsylvania Municipality Authorities Act of 1945, as amended, having its principal office at 6475 Carlisle Pike, Mechanicsburg (Silver spring Township), Cumberland County, Pennsylvania. 2. The Defendants herein are D. THEODORE OPPERMAN and SUSANNA B. POTERA, adult individuals, who reside at 2812 Merion Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Plaintiff is the owner and operator of a municipal sanitary sewerage system in the Township of Silver Spring, Cumberland County, Pennsylvania which exists for the protection of the health and welfare of the residents of said Township. 4. Defendants are the owners of a parcel of real estate situated in said Township of Silver Spring known and numbered as 12 and 16 East Main street, New Kingstown, being the same premises which Defendants acquired from Ray D. and Esther I. l.AW OI'F1CIIS SNELBAKIER . BRENNEMAN ... ".... McCoy by Deed dated August 21, 19B1, and recorded in the Office of the Recorder of Deeds in and for Cumberland County, pennsylvania, in Deed Book "I", Volume 35, Page 925, hereinafter called "Subject Premises". 5. Plaintiff has installed a portion of its municipal sewerage system in such location as to provide sewage collection service for the SUbject Premises. 6. The Board of Township Supervisors in and for the Township of silver spring duly enacted Ordinance No. 85-7 on July 24, 1985, which provides in relevant part as follows: a. That an owner of Improved Property whose principal building is within 150 feet from a municipal Sewer System shall connect said property with and use the Sewer system within 60 days after notice to make connection for the purpose of discharge of all sanitary sewage and industrial waste from the Improved property; and b. If any such owner shall fail to connect such Improved property as required, the Township may enter upon the Improved Property and construct such connection and may collect from the owner the costs and expenses thereof. 7. The SUbject Premises is Improved Property and Defendants are the Owners thereof within the meaning of said Ordinance No. 85-7. -2- ~ ,.". 8. Plaintiff is the duly authori~ed representative of the Township of silver Spring for the purposos of administering and enforcing said Ordinance No. 85-7. 9. On or about October 29, 1993, Plaintiff gave notice to Defendants to connect the SUbject Premises to the municipal sewer system adjacent to said Premises within 90 days from receipt of said notice. 10. Defendants received said notice to connect on November 12, 1993. 11. Subsequent to said notice aforesaid, Plaintiff has reminded Defendants of the obligation to connect with and use the municipal sewer system. 12. Defendants have failed and refused to connect the Subject Premises to the municipal sewerage system in disregard of the notice and reminder. 13. The Subject Premises generates sanitary sewage which is not being discharged into the municipal sewerage system but is being discharged into on-site facilities on the Subject Premises, now in violation of said Ordinance No. 85-7. 14. Defendants' continued use of the on-site facilities and LAW 0'''011;8 SNILBAI<ER . BRENNEMAN failure to use the municipal sewerage system constitutes a threat to the health and welfare of the general pUblic and specifically to the residents of Silver Spring Township. Therefore, it is necessary to force Defendants to comply with said Ordinance No. 85-7 by connecting the Subject Premises with the municipal sewerage system. -3- ------...---......."...... -.-.-....---... -- ._.._------~...__... .----.-- - --~-_.- ... .,........ ..._ ____..n........... ;~~;:~:. .::- ..::..;! - ....... -_.-....-_._-----~_.._"_..__..-. _.,...__.__.,~~--_._-- . .._. .--., .._.-,-_....._.~~-_... .'..-'. .._--_....._._-~.._-_._- . ~ ;I~ III Vi - . s ~ J ~ 'M V e a: ~ ~ ti: - ... ~ ... ~I ::: " j ij C ,.; - " ~ ii " r. ~ i~~ ,~ 'S ~ 2 ~ ... ~ ,.. " ~ 0 - ~ I1l ~ ~ ;" ~ ~ ... M - ,.; I 2l 'f 'I. " ~ ~ ~ '" . ~ M ~ III ... :oJ ~ 6 ~ m 0:: ~ .., ~ . :.. ., .., ;" ~ ,?, . ,. 0 'I( ~ ~~~ 8- i ~ ~ II:: ~ Ii II: tl1 =- ,~ =- ~ ... :..: "'" e: ~ c =- o Q ~ U 0 - ... II:: \: ... ~~ ... " \: I; ~J ~ ~ ,.. Q - ... ~ ~ ... :;:! ... f-i - S en "'=,=~'-~,.~,~.=._.,:===c=--"_=.___.. S " w \ , . . . '~l "... trial. 7, Dcnicd. Allcr rcasunahlc investigallun. thc Dcfcndants un: without inli.mnatlon. knowlcdgc or hclicfus to thc truth ofthc avcrmcnts containcd in paragraph six (6) of the Plalntifl's Cumplaint, Thc avermcnts arc thcrcli.Jrc dcnicd and strict proof is dcmandcd atllmc of trial. Il, Dcnicd. Ancr rcasunablc invcstlgatlon. thc Dc!cndants arc without inlormatlon. knowlcdgc or hclief as to thc truth uf thc avcrlncnts cuntaincd In paragraph six (6) of the Plaintlfl's Complaint. Thc avcrmcnts arc thcrcli.Jrc dcnicd and strict proof is demanded at time of trial. 9, Admitted. 10. Admitted. II. Denied, Aner reasonablc investigation. the Defendants are without information. knowledge or belief as to the truth of the averments contained in paragraph six (6) of the Plaintift's Complaint. The averments arc there lore denied and strict proof is demanded at time of trial. 12. Admitted in part. Defendants have refused to connect for lawful reasons as identified in New Matter. In addition, Defendants have rcqucsted inlormation concerning the Ordinances and Rules and Regulations and thcy have fallcd to provide copies of the Ordinances and Rules and Regulations. 13, Denied. Denied as a conclusion of law and issucd undcr thc Pennsylvania Rules of Civil Procedure. 14. Denied. Defendants havc a valid on site sewagc system that is properly functioning and existing under the Laws of the Commonwcalth of Pennsylvania. Defendants "."-"~"-'-----'--_._-'~--'--'- ,.- ._------_...__._~---~_..._._----_.--._... .-------.-.- .~-_. ..... .,~.--- ...-.....-.._------~ .._._.-----~.... ...-..-.-.-..,-~._...~ --.-----..---... -~_.._---,- ~.r, 'n 0"" ,~ .... ~ '" " ~~~ oM 'Q ~I .... '" " ~ OM 0. VI <'l '" '''' ,,~ o~ .... " ~ ;! 0. 0. ,. A t,o.f::f:: .... e:i . ~ ~ ., .... ~ 8~S'~ ., '" " . v. ~' ~ I> ~~ 0 ~~ r~ I-< 0'" I f-< 8 v. '-' 00 i>' Z 0. ~ !5 ,to .... w P.N.... "" . "" . 8j~t; ei\C: O~ "" '" I": .... ~~ '"' el or, e~ :tl "'.... f-< ~ .... ....1:5 zGo~ Vl ....E:i . r.J' l-I ~u Vl": "'Vl _.,.._-~~~ ..~-.--~_._.__. -,--_._~---_._,-_.__._._- --+--..._,-- ._....__.I-._._+-~. ..~_.__.___.__._--r.__~__._____..._._____~..___..__M..__.-.--.-.-- . 0 ' w . ------=-' ~I, ,n ,n g :<; ~ :z i~! ~ ~ ~ ~ ~ ~ Z ~ ~ ~ I ~ ~ ~ j 0. al ~ Z ~ ~ d oil ~ O! ~ I) ~ :0 ~ 0 ~ ~ ~ l < Z ~~ ~ u UJ ~ ~ . " , ,/', < LAW OI"I"ICIIS SNIEL.I:lAKER a BRENNI:MAN 1'''''''' 1""*1 SILVER SPRING TOWNSHIP AUTHORITY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. NO. 95-4324 EQUITY 'fERM D. THEODORE OPPERMAN and SUSANNA B. paTERA, Defendants CIVIL ACTION - EQUITY REPLY TO NEW MATTER AND NOW, comes the Plaintiff, SILVER SPRING TOWNSHIP AUTHORITY, by its Attorneys, SNELBAKER & BRENNEMAN, P.C., and responds to the Defendants' New Matter as follows: 16. It is denied that Defendants' buildings are more than one hundred fifty feet from Plaintiff's sewer system. On the contrary, it is averred that the Defendants' principal buildings are within one hundred feet from Plaintiff's sewer system as required under section 1501.1 of the Second Class Township Code (53 P.S. S66501.1). 17. It is denied that Plaintiff's Ordinances and regulations have not been produced by Plaintiff, and it is further denied that Plaintiff's ordinances and rules and regulations are invalid and not properly enacted. On the contrary, it is averred that Plaintiff's ordinances and regulations are matters of public record and available for inspection by Defendants at Plaintiff's office. tt is further averred that Defendants have been advised of their right to inspect all such public records by communication with their Attorney, and any lack of inspection is the fault and choice of " 'II r '.r ~~ 'i -- u - ., .~ i '1 ,\ Ii ~ r . .;-.\ /~ ~i'~"'''-=-;'.'_.''''C'''''C-.''''=''==''''='.'''''oc.c,'~===''=~='-'-='--=--~-=-,' ",,,=,,,,,,,",,-- u_ ,n ,n \j;S . g 'n u ::.-. , ..... ... ~ . ~ ~I ..... " '" .f~ r;; ~ .... '. ~ ~ 7- ~~ j.J '" " .~ " .... z 3 ~ ~ <: ""'" I- '" 1J i:1 ,," >, ~~ ~ '. " '.... ~ ,J ~ ~ "" .... '. '" td'" ~ ~ ~ ~""~.... .... "" '" ".8 ;.: ;; eJ z ~ I ~ ~ ~ ' ....'" ~ " /l., ti v v. "' 8 "g.g ~ . ~ ~ .. ~~"' g OJ) ~~ ""~ III Z ~ rj i> " ~ ~ ~ 01:1 ~ O! 0; a 1 '" ,- V- I) ~ :0 r.... 8 z <:> 00 ~H '" ~ ~ "" .,., ~ 0 ~ ~ eJ 0..,. "' .... ~ .8........ '" " o~ . H "" < ~ 8:lt;~ e;~ 00:1 .... III '" c., til i <,1 .... ~K l<-l ~ffi,...,~ ~~ "" 55 ~ .- ~ '" ~ i> . VI J. e:1 t)~ .1:.> . '" <, "'''' -- .-.- - --.......' . . , . w .., Q I.AW O'''o::U SNII..DAI<ER lit B"I!:NNIEMAN .... - SILVER SPRING TOWNSHIP AUTHORITY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. CIVIL ACTION - EQUITY D. THEODORE OPPERMAN and SUSANNA B. paTERA, Defendants NO. 95-4324 EQUITY TERM PETITION FOR PRELIMINARY INJUNCTIQH TO THE HONORABLE, THE JUDGES OF SAID COUR'r: AND NOW comes the Plaintiff, SILVER SPRING TOWNSHIP AUTHORITY, by its Attorneys, SNEL8AKER & BRENNEMAN, P.C., and respectfully represents as follows: 1. That your Petitioner herein is the SILVER SPRING TOWNSHIP AUTHORITY, the Plaintiff in the above captioned action and as more fully identified in the Complaint attached hereto as recited hereinbelow. 2. That your Petitioner commenced the within action by duly filing its Complaint on August 14, 1995, a true and correct copy of said Complaint being attached hereto and incorporated herein by reference thereto. 3. That Defendants persist in their violation of the applicable ordinances, resolutions, rules and regulations being enforced by Plaintiff as set forth in the Complaint. 4. Defendants' continued violation of said ordinances, resolutions, regulations and rules and their continued use of on- u.w O"ICII SNIL.AKIN . aftrNNIMAN - SILVER SPRING TOWNSHIP AUTHORIT~, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT~, PENNS~LVANIA I : I : I : EQUIT~ TERM Plaintiff NO. 95- 'I),; y VS. D. THEODORE OPPERMAN and SUSANNA B. POT ERA , Defendants : I CIVIL ACTION - EQUIT~ COMPLAINT AND NOW comes the Plaintiff, SILVER SPRING TOWNSHIP AUTHORIT~, by its Attorneys, SNELBAKER & BRENNEMAN, P.C., and avers the following cause of actionl 1. The Plaintiff herein is SILVER SPRING TOWNSHIP AUTHORIT~, a body pOlitic, having been created under the Pennsylvania Municipality Authorities Act of 1945, as amended, having its principal office at 6475 Carlisle Pike, Mechanicsburg (Silver Spring TownShip), Cumberland County, Pennsylvania. 2. The Defendants herein are D. THEODORE OPPERMAN and SUSANNA B. POTERA, adult individuals, who reside at 2812 Merion Road, camp Hill, Cumberland County, Pennsylvania 17011. 3. Plaintiff is the owner and operator of a municipal sanitary sewerage system in the Township of Silver Spring, Cumberland County, Pennsylvania which exists for the protection of the health and welfare of the residents of said TownShip. 4. Defendants are the owners of a parcel of real estate situated in said Township of Silver Spring known and numbered as 12 and 16 East Main Street, New Kinqstown, being the same premises which Defendants acquired from Ray D. and Esther I. LAW o"u:n SNILIAKlR . BftlNNIMAN McCOy by Deed dated August 21, 1981, and recorded in the Office of the Recorder of Deeds in and for Cumberland county, Pennsylvania, in Deed Book "I", Volume 35, Page 925, hereinafter called "Subject premises". 5. Plaintiff has installed a portion of its municipal sewerage system in such location as to provide sewage collection service for the subject Premises. 6. The Board of Township supervisors in and for the Township of Silver Spring duly enacted Ordinance No. 85-7 on July 24, 1985, which provides in relevant part as follows: a. That an owner of Improved property whose principal building is within 150 feet from a municipal Sewer System shall connect said Property with and use the Sewer system within 60 days after notice to make connection for the purpose of discharge of all sanitary sewage and industrial waste from the Improved Property; and b. If any such owner shall fail to connect such Improved Property as required, the Township may enter upon the Improved Property and construct such connection and may collect from the owner the costs and expenses thereof. 7. The SUbject premises is Improved property and Defendants are the Owners thereof within the meaning of said Ordinance No. 85-7. -2- LAW O"ICII 8NIL.AleIJllt . eftlNNIMAN 8. Plaintiff is the duly authorized representative of the Township of silver spring for the purposes of administering and enforcing said ordinance No. 85-7. 9. On or about October 29, 1993, Plaintiff gave notice to Defendants to connect the Subject Premises to the municipal sewer system adjacent to said Premises within 90 days from receipt of said notice. 10. Defendants received said notice to connect on November 12, 1993. 11. Subsequent to said notice aforesaid, Plaintiff has reminded Defendants of the obligation to connect with and use the municipal sewer system. 12. Defendants have failed and refused to connect the Subject Premises to the municipal sewerage syotem in disregard of the notice and reminder. 13. The Subject Premises generatos sanitary sewage which is not being discharged into the municipal sewerage system but is being discharged into on-site facilities on the Subject Premises, now in violation of said Ordinance No. 85-7. 14. Defendants' continued use of the on-site facilities and failure to use the municipal sewerage system constitutes a threat to the health and welfare of the general public and specifically to the residents of Silver Spring Township. Therefore, it ia necessary to force Defendants to comply with said Ordinance No. 85-7 by connecting the subject premises with the municipal sewerage system. -3- L.AW O,lICII SNILIAI<I" . e"INNIMAN 16. Plaintiff has no adequate remedy at law. WHEREFORE, Plaintiff respectfully prays your Honorable Courtl a. Enjoin, prohibit and prevent Defendants from discharging sanitary sewage into on-site disposal facilities I b. Order, direct and enforce Defendants to connect their sanitary sewage generating facilities on the Subject Premises to the Plaintiff's municipal sewage systeml c. Order and direct Defendants to pay all required tapping and connection feesl d. Authorize and empower Plaintiff through its agents, employees and/or contractors to enter upon the Subject Premises and to construct the necessary connection or connections of sanitary sewage generating facilities on and in the SUbject Premises to the municipal sewerage system in accordance with the requirements of said Ordinance No. 85-71 e. Order and direct Defendants to pay and reimburse Plaintiff for all costs and expenses incurred in effecting the connection as required under paragraph d. above. f. Order and direct Defendants to pay the costs of this proceeding; and -4- trial. 7. Denied. Aller reasonable investigation, the Defendwlls are without infonnation. knowledge or belief DS to the truth of the avennents contained in paragraph six (6) of the Plaintiffs Complaint. The avennents are therefore denied and strict proof is demanded at time of trial. 8. Denied. Aller reDSonable investigation, the Defendants are .....ithout infonnation, knowledge or belief DS to the truth of the avennents contained in paragraph six (6) of the Plaintiffs Complaint. The avennents are therefore denied and strict proof is demanded at time of trial. 9. Admitted. 10. Admitted. II. Denied. After reDSonable investigation, the Defendants are without infonnation, knowledge or beliefDS to the truth of the avennents contained in paragraph six (6) of the Plaintiffs Complaint. The avennents are therefore denied and strict proof is demanded at time of trial. 12. Admitted in part. Defendants have refused to connect for lawful reDSons DS identified in New Matter. In addition, Defendants have requested infonnation concerning the Ordinances and Rules and Regulations and they have failed to provide copies of the Ordinances and Rules and Regulations. 13. Denied. Denied as a conclusion of law and issued under the Pennsylvania Rules of Civil Procedure. 14. Denied. Defendants have a valid on site sewage system that is properly functioning and existing under the Laws oflhe Commonwealth ofPelUlsylvania. Defendants LAW O"ICU SNIL.IAKlft III .RENNIMAN SILVER SPRING TOWNSHIP AUTHORITY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA plaintiff vs. NO. 95-4324 EQUITY TERM D. THEODORE OPPERMAN and SUSANNA 8. POTERA, Defendants CIVIL ACTION - EQUITY REPLY TO NEW MATTER AND NOW, comes the plaintiff, SILVER SPRING TOWNSHIP AUTHORITY, by its Attorneys, SNELBAKER & BRENNEMAN, P.C., and responds to the Defendants' New Matter as follows: 16. It is denied that Defendants' buildinqs are more than one hundred fifty feet from plaintiff's sewer system. On the contrary, it is averred that the Defendants' principal buildinqs are within one hundred feet from Plaintiff's sewer system as required under Section 1501.1 of the Second Class Township Code (53 P.S. 566501.1). 17. It is denied that Plaintiff's Ordinances and regulations have not been produced by Plaintiff, and it is further denied that Plaintiff's ordinances and rules and requlations are invalid and not properly enacted. On the contrary, it is averred that Plaintiff's ordinances and requlations are matters of public record and available for inspection by Defendants at plaintiff's office. It is further averred that Defendants have been advised of their right to inspect all such public records by communication with their Attorney, and any lack of inspection is the fault and choice of - SILVER SPRING TOWNSHIP AUTHORITY, PLAINTIFF V. D. THEODORE OPPERMAN and SUZANNA B. POTERA, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-4324 EQUITY TERM l~ RE: PETITION OF PLAINTIFF FOR PRELIMINARY INJUNCTION OPI~ION AND ORDER OF COURT BAYLEY, J., November 22, 1995:-- On August 11, 1995, plaintiff, Sliver Spring Township Authority, flied a complaint against defendants, D. Theodore Opperman and Suzanna B. Potera, husband and wife, who live In Camp HIli. Defendants are tile owners of 12 and 16 East Main Street, New Kingston, Sliver Spring Township. Those properties have an on-site septic system. On October 29, 1993, plaintiff sent notice to defendants to connect the buildings on their properties to a municipal sewer system. Defendants have not done so. This complaint In Equity seeks, !JJW ~, an order enjoining defendants from continuing to discharge sanitary sewage Into their on-site disposal system, and directing them to connect to the sanitary sewer. On October 25, 1995, the Township Authority filed a petition for a preliminary Injunction. A hearing wes held on November 9. The Second Class Township Code provides at 53 P.S. Section 66501.1: Sewer system established or constructed by municipality suthorltles; connection and use by owners; enforcement Whenever a sewer system Is or shall have been established or constructed by a municipality authority within a township of the second class, the township supervisors shall be empowered, by ordinance, to if!' 95-4324 EQUITY TERM compel all ownera of property accelllble to and whole principii building Is within one hundred fifty feet from luch lewer IYltem to make connection therewith and use luch lewer IYltem In luch manner as they may order. The township supervisors may, by ordinance, Impose penaltlel to enforce any regulation or order they may ordain with reference to any lewer connectlonl. In cIse Iny owner of property accesllble to and whol. principal building II within one hundred fifty feet from a lewer IYltem established or constructed by a municipality authority Ihall neglect or refule to connect with said sewer system for a period of sixty days after notice to do so has been served upon him by the township supervisors, either by personal service or by registered mall, the townlhlp lupervllors or their agentl may enter upon luch property and construct luch connection. In such case, the township supervisors shall forthwith, upon completion of the work, send an Itemized bill of the cost of the construction of such connection to the owner of the property to which connection has been so made, which bill shall be payable forthwith. In case of neglect or refulal by the owner of luch property to pay said bill, It Ihall be the duty of the township lupervllorl to file munlclpll lIenl for said construction within six months of the date of the completion of the construction of said connection, the same to be subject In all respects to the general law provided for the filing and recovery of municipal liens. (Emphasis added). Ordinance 85-7 Sliver Spring Township provides Inter alia: SECTION 2.01. The Owner of any Improved Property accessible to and whose principal building 'I within 150 feet from the Sewer SYltem shall connect luch Improved Property with and Ihall use luch Sewer System, In such manner as this Township may require, within 60 days after notice to such Owner from this Township to make such connection, for the purpose of discharge of all Sanitary Sewage and Industrial Wastes from such Improved Property; Subject, however, to such limitations and restrictions as shall be established herein or otherwise shall be established by this Township, from time to time. (Em~hasis added). SECTION 2.02. All Sanitary Sewage and Industrial Wastes from Iny Improved Property, after connection of luch Improved Property with a Sewer Ihall be required under Section 2.01, Ihlll be conducted Into a Sewer; Subject, however to such limitations and restrictions as shall be established herein or otherwise shall be -2- 47 95-4324 EQUITY TE!RM established by this Township, from time to time, (Emphasis added). SECTION 2,03. No person shall place, shall deposit or shall permit to be placed or to be deposited upon public or private property within this Township any Sanitary Sewage or Industrial Wastes In violation of Section 2,01. No Person shall discharge or shall permit to be discharged to any natural outlet within this Township any Sanitary Sewage or Industrial Wastes In violation of Section 2.01, except were suitable treatment has been provided which Is satisfactory to this Township. SECTION 2.04. No privy vault, cesspool, sinkhole, leptlc tank or similar receptacle shall be used or shall be maintained at any time upon any Improved Property which has been connected to a Sewer or which shall be required under Section 2.01 to be connected to a Sewer. (Emphasis added). The prerequisites for the Issuance of a preliminary Injunction are set forth In John G. Bryant Co., Inc. v. Sling Testing end Repair, Inc., 471 Pa. 1 (1971): [~Irst, that It Is necessary to prevent Immediate and Irreparable harm which could not be compensated by damages; second, that greater Injury would result by refusing It than by granting It; and third, that It properly restores the parties to their status as It existed Immediately prior to the alleged wrongful conduct. Eve" more essential, however, Is the determination that the activity sought to be restrained Is actionable, and that an Injunction Issued Is reasonably suited to abate such activity. And unless the plaintiff's right Is clear and the wrong Is manifest, a preliminary Injunction will not generally be awarded. Defendants maintain that their principal building Is not within 150 feet of the sewer system; therefore, they cannot be compelled to connect pursuant to Section 66501.1 of the Second Class Township Code. There are three buildings on defendants' property from which sewage Is now discharged Into the on-site septic system. They are designated buildings 12, 16 and 16A. While defendants -3- 95-4324 EQUITY TERM acknowledge that building l6A Is within 150 feet of the point of connection to the sewer, they maintain that buildings 12 and 16 are not. Plaintiff retained a professional civil engineer who, on November 1, 1995, physically chained the distances on the ground with a surveyor's chain from the nearest points of each building to the point of connection to the sewer: building 16A was 40 feet 2 Inches; building 16 was 149 feet 2 Inches; and building 12 was 126 feet. That evidence Is credible. Since all of their buildings are within 150 feet of the sewer connection, defendants are obligated to connect to the sewer system pursuant to Section 66501.1 of the Second Class Township Code, and Section 2.01 of Sliver Spring Township Ordinance 85-7. Defendants further maintain that plaintiff Is not entitled to a orellmlnarv Injunction because such an Injunction Is not needed to prevent Immediate and Irreparable harm. There Is no evidence that the on-site septic system Is not working properly, or that sewage presently being discharged Into that sYfltem Is creating any health hazard or Immediate potential hazard. Section 66501.1 of the Second Class Township Code provides three remedies to the Township. First, the Township supervisors are "empowered, by ordinance, to compel all owners of property accessible to and whose principal building Is within one hundred fifty feet of such sewer system to make connection therewith and to use such sewer system In such a manner as they may order." Thus, the Township Authority has filed this suit In equity. Second, the Township supervisors "may, by ordinance, Impose penalties to enforce any regulation or order they may ordain with reference to any sewer connections." .4- 1:15-4324 EQUITY TERM Sliver Spring Township In Section 5.01 of Ordinance 85-7, provides that violators of the Orqlnance: (s]hall be liable, upon summary conviction for a first offense and upon summary conviction for each subsequent offense, to a fine of not less than Twenty-Five Dollars ($25) nor more than Three Hundred Dollars ($300), together with costs of prosecution In each case. Each day that a violation shall continue shall be deemed and shall be taken to be a separate offense and shall be punishable as such.' Third, the Township Is authorized to enter upon the premises of defendants and construct connections to the sewer. If defendants then refuse to pay the costs of construction, the Township may file municipal liens and then seek recovery under the general law for the collection of those liens. For obvious reasons, the TownShip wants to avoid this remedy.2 The remedy sought In this equity su,' :s actionable since the Second Class Township Code specifically authorizes the Township to compel defendants to connect with the sewer. Since we have found that the distances between the nearest points of all defendants' buildings and the point of connections to the sewer are within 150 feet, plaintiff's right Is clear and defendants' wrong Is manifest. However, without a showing that defendants' on-site septic system Is creating a health hazard or Immediate potential hazard, we cannot conclude that a greater Injury would result 1. We are not aware of the supervisors having, as yet, sought to have fines Imposed against defendants. 2. We believe the Second Class Township Code provides alternative remedies to the Township tJecause, even If plaintiff obtains an injunction to compel defendants to connect to the sewer, whether plaintiff can enforce the Injunction through an order of civil contempt will depend on whether defendants have the financial ability to comply. -5. """'I ~ .~. ~ r, ., ,r.; .. ,,;. ..-~ 't '. " (';1 ,.. " "" " ", S-~ "II , " -- 1.1"1 j II, .~ .., '.. I.' ~ . INDEX TO ~ FOR THE PLAINTItr 1. Thoma. pillian 2. Waltar C. John.on 3. John E. Freilino DIRECT ~~ REDIRECT RECROSS 4 10 19 16,17 17 18 19 24 FOR THE DEFENDANT 1. D. Theodora opp.rman 25 28 lPDEX TO EXHIBITS FOR THE PLAINTIfF MARKED ADMITTED 1. A.-built Plan 3 25 2 . ordinance 85-7 3 25 3. Tax A.....or Map 5 25 4. Latter from Mr. snelbaker 22 25 to Mr. oppurman 2 1 November 9, 1995, 3:20 p.m. 2 carlisle, pennsylvania 3 4 (Whereupon, the following proceeding 5 was held:) 6 (Whereupon, Plaintiff's Exhibits 1 and 7 2 were marked prev ious to hear ing . ) 8 THE COURT: Preliminary injunction? 9 MR. SNELBAKER: Yes, sir. 10 THE COURT: Both parties ready to proceed? 11 MR. MOLNAR: Yes, we are, Your Honor. 12 MR. SNELBAKER: Your Honor, just by way of 13 background on this matter. We filed a complaint and then 14 THE COURT: Off the record. 15 (Whereupon, a brief discussion was 16 held off the record.) 17 MR. SNELBAKER: I would like to go on the 18 record as indicating that the parties have admitted -- that 19 the defendant has submitted to the parties, which are 20 paragraphs one and two, that they are the owners of the 21 subject premises which is identified in paragraph four, and 22 they admit that they have received -- the proper notice has 23 been sent and has been received at paragraphs nine and ten 24 of the complaint. Those are admissions, Your Honor, and we 25 are ready to proceed with some facts. I'm going to call 3 .~ 1 Thome. Pillien fir.t. ~ Whereupon, 3 THOMAS PILLIAN, 4 having been duly sworn, testified as follows: ~ DIRECT EXAMINATION 6 BY MR. 8NELBAKER: 7 Q Would you give us your name and your business 8 addre.., please. 9 A Thomae pillian. Hartman and Associates, 2101 10 Orchard Drive, Camp Hill, Pennsylvania. 11 Q By whom are you employed? 13 A Robert G. Hartman, Hartman and Associates. 13 Q What is Hartman and Associatos? 14 A Civil engineering and surveying firm. 15 Q Do you hold a position with that company? 16 A I do. 17 Q And what is it? 18 A I'm the vice president, 19 Q In your capacity as vice president of Hartman 30 and A..ociates, do you personally participate in any 31 .anitary eewage projects involving the township of silver 33 spring and as owned and operated by Silver spring Township 23 Authority? 24 A Yes, I do. 25 Q Are you familiar with the sewer system as it 4 bO 1 has been inetalled in the village of New Kingstown? 2 A Yos. 3 (Whereupon, Plaintiff's Exhibit No. 3 4 was marked for identification.) 5 BY MR. SNELBAKER: 6 Q I'm showing you what I'm sure you will 7 r8cogni~e as a tax aseessor's map. Are you familiar with 8 these maps, Mr. Pillian? 9 A Yes, I am. 10 Q I'm going to ask you to mark this Plaintiff's 11 Exhibit 3, and I'll direct your attention to the middle of 1.2 the map and a road which traverses from right to left on 13 14 15 16 17 18 19 20 assessor has indicated are the properties of the defendants 21 in this case, D. Theodore Opperman and Susanna B. Potera? 22 A They are noted as 90 and 93. 23 Q Now, did you and your firm design the 24 eanitary sewer system that's involved here? 25 A Yes. that exhibit. Are you familiar with that road, sir? A Yes. Q And what is it? A U.S. Route 11. Q That's also known as Carlisle Pike? A That's correct. Q And can you identify on that map what the 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And I'm going to show you what has been marked as Plaintiff's Exhibit 1. I'm going to ask you to describe for the record what that piece of paper is. A This is the as-built plan which shows a portion of the sewer that services the defendants' property. Q We have exhibited this to the defendant and his counsel, and the question -- what I want to show you here is what are -- for the record, what are the improvements on these two properties? Can you describe where they are? A Yes. At 12 Carlisle Pike, there is a single family home. At 16 Carlisle Pike, there is ~ single family detached residence, as well as an outbuilding to the rear of that which has been noted as 16-A. Q I'm going to hold it up so that the Judge can see it. I'm qoing to ask you whether you can point out where the improvements are on this paper. Will you tell him, please, what those improvements are and how they appear here? A Yes. At 12 carlisle Pike, there is a single family detached home. 16 Carlisle Pike is a single family detached home with an apartment or outbuilding to the rear that is being occupied. Q Are they colored in red or pink coloring? 11 They are colored in pink. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q okay. Now, just so that this map can be or this plan can be oriented, where is Carlisle Pike on this map, sir? A the front. Would be to the north of these properties in Q So the.se properties front on carlisle Pike but the sewer'. at which end? A The southern end. They are serviced from the rear. Q Can you tell me, please, where on this map and how are the sewers delineated? A The sewers are delineated with the green lines. Q A question has been raised by virtue of the pleadings that these -- THE COURT: Let me see that again. They service both properties from the rear? Okay. I see. THE WITNESS: Yes, sir. THE COURT: Go ahead. BY MR. SNELBARER: Q A question has arisen in the pleadings, Mr. pillian, as to the fact that one or more of these improvements are alleged to be more than 150 feet from the .ewer lines that were installed by the authority. Are you familiar with that alleqation? 7 ~3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 , A Yell. Q And in response to that, did you at the direction of the authority and me as the solicitor make a special effort to ascertain the distances between the several improvem~nts marked in pink on Exhibit 1 and the sewer lines as they appear in green? A Yes. Q And will you i.ndicate to the court, perhaps by pointing, what you found as the distances? A The distance from house 12 is 126 feet to the point of connection. From house THE COURT: Hold on. Okay. House 16. THE WITNESS: From house 16, 149 feet, 8 inches. And what we have noted as 16-A, which is the outbuilding, 42 feet, 2 inches. BY MR. SNELBAKER: Q Now, did anyone assist you in maKing those measurements? A Yes. Q What is his name? A Walter Johnson. Q Is Mr. Johnson present in court this afternoon? A Yes, he is. Q Can you identify him? 8 ~l.f 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A The qentleman sitting there in the brown jacket. Q And did you participate in making that measurement? A Yes, I did. Q Can you tell us how you made the measurement? What means did you use? A Physically chained it in the fie ld. Q What does chain mean, sir? A That means that it is measured on the ground via a surveyor's chain. Q Does the chain have dimensions or markinqs on it? A Yes, it does. Q In what dimension? A Feet and inches. Q Now, the green lines that are on Exhibit 1, I guess, are they completed and in use? A Yes. Q And would it be -- do you have some idea as to when they were completed? A The as-built plan is dated October 28th, 1994. They would have been completed probably 30 days prior to that. Q It's been admitted that on or about October 9 1 29th, 1993, notice was qiven to the defendants to connect. 2 That's October 29th of '93. Would they have been -- the 3 sewer lines been installed at that time? 4 A Yes. 5 Q Now, to your knowledge, have these three 6 improvements been conneoted to the silver Spring Authority's 7 lilies? 8 A No. 9 Q And do you know by what means sewage is being 10 discharged or treated at these improvements presently? 11 A I would assume on lot septic systems. 12 MR. SNELBAKER: Cross-examine. 13 MR. MOLNAR: Thank you. May it please the 14 Court, if I may approach the map, please? 15 THE COURT: Sure. 16 MR. MOLNAR: Thank you. 17 CROSS EXAMINATION 18 BY MR. MOLNAR: 19 Q It's Mr. pillian? 20 A Pillian, yes. 21 Q Mr. Pillian, in regard to -- I believe was it 22 this side of the map that you were testifying? 23 A Yes. 24 Q The sewer line is highlighted in green, and 25 that is what's called a main, is that correct? 10 1 A Yes. 2 Q And the main is located as it traverses, say, 3 alonq the drive, the entrance drive, what's called the 4 entrance drive, and along the Mccoy -- it's titled the 5 McCOy property, which I assume is now the Opperman property? 6 A That's correct. 7 Q Where is that located, in terms of whose 8 property is that located? 9 A That is located on an easement to the rear of 10 what would be the MCCoy property and the Opperman property. 11 Q Now, when I examinL the lot that is marked D. 12 Theodore Opperman where two dwellings are located, 16-A and 13 16, the red line appears to go from the property line. Am I 14 correct on that? 15 A No, the red line is going from the clean out, 16 which is the termination of the lateral which was placed to 17 service that property. 18 Q NOW, where is that on the map, the clean out? 19 I don't 20 A The clean out is right there, and these 21 dimensions show the distance, length, and depth of the sewer 22 line, the lateral at that point, and it is physically 23 visible on the ground. 24 Q And how far is the clean out from the 25 property line of what is marked D. Theodore opperman on the 11 '7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -' map? A property line. manhole. I can't verify how many feet it ie from the I can tell you how many feet it is from the Q How many feet is it from the manhole? A Seven. Q Seven feet. And the ownership of this property, again, is? Who owns this property? A The authority has a sewer easement. Q A sewer easement. And how wide is the sewer ea.ement, if you know? A It is 20 feet, and it abuts the rear of the Opperman property. Q In terms of the diagrams on what is marked the Opperman lot or highlighted in pink, I believe, are those highlights measured in the field or are they approximated? A The distances that I had specified? Q No, I'm talking about the actual buildings. A The locations? Q The highlighted pink. A Those are shot and located in the field. Q And in terms of the measurement -- when you did the measurement on what ie titled the opperman property, when did you make these most recent measurements that you 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have testified here? A 11/1/95 at 3105 p.m. Q Did you obtain permission from Dr. Opperman or his wife, Ms. Potera, when you made the measurements? A I did not. Q Did you enter their property to make the measurements? A I did. o Now, in regard to the other property, which is -- we admitted that this is the Opperman property on the map. It's marked as the McCoy property. I'll refer to MoCoy just for the sake of reference to the map. A Yes. MR. SNELBAKERI Perhaps you can refer to it as number 12. MR. MOLNAR: Number. 12, okay. BY MR. MOLNAR: Q Number 12 is what is located on the map as Ray D. McCoy, now the defendant's property. Again, the red line a~pears to go to the property line, the way I view it, on your map that you prepared. Where did you measure? A Again, from the clean out, which is 7 feet from the main, and again is visible on the ground in the field. Q And at 7 feet from the main? 13 A Q Opperman or his their property? A Q measure? A 14 1 16-A, 16 and what is known as 12? 2 A No. 3 Q So that the area highlighted in pink are not 4 necessarily actual dimeneions ot the house, is that correct? 5 A No, that's not correct. 6 Q That's not correct? 7 A If they were scaled, they would be the actual 8 dimensions. Allot those building corners were shot in the 9 field, and they are located accurately. I did not calculate 10 square footage of the buildings. It has no bearing on the 11 development of the sewer system. 12 MR. MOLNAR: I have no other questions of 13 this witness, but I would object to his taking measurements 14 on the Opperman property without seeking permission. 15 THE COURT: Your objection is noted. He did 16 it. 17 MR. SNELBAKER: For the record and with 18 respect to that, I would want to place on the record 19 reference to the Second Class Township Code 53 P.S. 66 20 501.1 which says, In the event that a person does not 21 connect, the municipality has the right to enter upon and do 22 the work itselt. So this would just be part of doing that 23 work. 24 THE COURT: Okay. Well, in any event, any 25 redirect? 15 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SNELBAKER: Yes, sir. REDIRECT EXAMINATION BY MR. SNELBAKER: Q The main itself is a line that's in the right-Of-way that collects the sewer from many properties, right? That's correct. And when you mentioned the clean out, what is A Q the clean out? A There is a lateral that is extended off of the main, and at the terminal end of the lateral, there is a clean out which is a pipe which runs from the invert to the finished grade or ground level which is there to allow for the clean out of the lateral should it become blocked at anytime in the future. Q Now, the lateral is a piece of pipe which connects to the main and extends toward the improvements to be sewered, is that correct? A That is correct. Q And who puts that in? A The authority places the lateral. Q And who owns that lateral? A The homeowner would own it in the future. He would be responsible for it. Q He would be resp~nsible for it. But as far 16 1 as the lateral itself is concerned, it was installed at the 2 oost and expense of the authority, is that correct? 3 A That's correct. 4 Q And until something happens, it still belongs 5 to the authority? 6 A That's correct. 7 MR. SNELBAKER: I have no other questions. 8 MR. MOLNAR: Just one question. 9 RECROSS EXAMINATION 10 BY MR. MOLNAR: 11 Q That lateral that you referred to, has that 12 been installed at this point and time? 13 A All of the laterals are installed, yes. 14 REDIRECT EXAMINATION 15 BY MR. SNELBAKER: 16 Q Do you recall whether there was any 17 requirement or any opportunity for the defendants to locate 18 the lateral for any purpose? 19 A Typically how we handle the situation, there 20 are Rtftkes with a note distributed to each and every 21 property owner so that they can choose the point along their 22 property that would best ouit them for service. 23 Specifically, in this instance, I can't say whether that 24 happened. It's been too long ago. 25 MR. SNELBAKER: Okay. Thank you. You may 17 1 come down. 2 THE COURT: You may step down. 3 MR. SNELBAKER: Mr. Johneon, can I have your 4 testimony, very briefly. ~ Whereupon, 6 WALTER C. JOHNSON, 7 having been duly sworn, testified as follows: 8 DIRECT EXAMINATION 9 BY MR. SNELBAKER: 10 Q Would you give us your name please, sir. 11 A Walter C. Johnson. 12 Q Mr. Johnson, by whom are you employed? 13 A Hartman and Associates. 14 Q Are you the same Walter Johnson that assisted 1~ Mr. pillian as he testified here just moments ago? 16 A Yes, sir. 17 Q Were you present throughout his testimony to 18 hear him testify as to the measurements that were made in 19 the village of New Kingstown? 20 A Yes. 21 Q I'm showing you what has been marked as 22 Plaintiff's Exhibit 1. Are you familiar with thia document? 23 A Yes, I am. 24 Q Are you the other person that participated in 2~ the measurements, sir? 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I am. Q Based upon what you heard of Mr. Pillian, do you agree or disagree with what he's said as far as the measurements and the locations of the improvements to the lines? A I agree. Q You agree. MR. SNELBAI<ER: You can cross-exam.\ne. CROSS EXAMINATION BY MR. MOLNAR: Q Just a couple of questions, sir. Did you seek any permission from either Dr. opperman or Ms. Potera with regard to entering any of the properties on November 1 to make your measurements? A No, I did not. MR. MOLNAR: I have no further quostions. TilE COURT: You may step down. MR. SNELBAI<ER: Thank you. Mr. Freilino. Whereupon, JOHN E. FREILINO, havinq been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. SNELBAKER: Q Would you give us your name, please, sir. A My name is John E. Freilino. 19 75: 1 THE COURT I Spell that last one for me. 2 THE WITNESS I F, as in Frank, r-e-i-l-i-n-o. 3 THE COURT: Okay. 4 BY MR. SNELBAKERI 5 Q Mr. Freilino, do you hold an official 6 position with the township of Silver Spring and the Silver 7 Spring Township Authority? 8 A Yes, I do. 9 Q What is that, please? 10 A I am the manager of the township, and I am 11 the director of the authority. 12 Q And as the director of the authority, are you 13 the person who has day-to-day operations of the authority 14 and its sewer system? 15 A Yes, sir, I am. 16 Q Are you familiar with the location in New 17 Kingstown where the Opperman/potera properties are located? 18 I think they have been designated as 12, 16, and 16-A. 19 A Yes, sir, I am. 20 Q And are you familiar with the controversy 21 which has arisen here as to their non-connection to the 22 sewer system? 23 A Yes, sir, I am. 24 Q Now, I'm going to show you what has been 25 marked as Plaintiff's Exhibit 2, and ask you whether this is 20 7(P A Q at all are hear that? A Q A 21 d. 1 A Once the sewer line is prepared and ready for 2 servicinq, we notify the homeowner, the landowner. They 3 come to the township office. They are provided 4 specifications as to how it should be done, and then they 5 are given a permit and they are charged certain fees. 6 Q Then after that what occurs? 7 A The individual homeowner then will contract 8 to have a private individual come in and set in the 9 necessary system to connect to the sewer line. 10 Q Has any application been made here for this 11 connection of any of these improvements? 12 A Not to my knowledge. 13 Q Has any payment been made with respect to the 14 tapping or other fees which are required 15 A No, sir. 16 Q -- in proceeding to getting a permit? 17 A No, sir. 18 Q Has indeed notice been sent to the 19 individuals, the defendants in this matter, asking them to 20 adhere to the prior notice? 21 A Yes. 22 (Whereupon, Plaintiff's Exhibit No. 4 23 was marked for identification.) 24 BY MR. SNELBAKER: 25 Q I'm showing you what we have marked as 22 1 Plaintiff's Exhibit 4 and ask you whether you are familiar 2 with that letter? 3 A Yes, I am. 4 Q What is that letter? 5 A It's a letter written by the solicitor to the 6 authority, Mr. Richard C. snelbaker, to advise Mr. Opperman 7 and Ms. Potera that they are in non-compliance with the 8 directive to hook up to our sewer system. 9 Q What's the date of this communication, sir? 10 A This is dated June 16th, 1995. 11 Q And does it, in effect, say that if they 12 don't take action to do something -- 13 MR. MOLNARl I'm going to object. The letter 14 speaks for itself. 15 THE COURT: It speaks for itself. I agree. 16 BY HR. SNELBAKER: 17 Q Does the letter indicate that there's going 18 to be action taken by the authority? 19 A It does. 20 Q And is that in the last paragraph? 21 A That's correct. 22 Q In response to that, did you receive any kind 23 of application for permit or fees? 24 A No, sir. 25 MR. SNELBAKER: Cross. 23 1 MR. MOLNAR: Thank you. 2 CROSS EXAMINATION 3 BY MR. MOLNAR: 4 Q sir, in regard to the ordinance which Mr. 5 Snelbaker submitted to you, the secretary certification 6 section 3.07 which appears on page seven and page eight, 7 that has not been amended in anyway, is that correct? 8 A Not to my knowledge. 9 Q And do you know if Dr. Opperman in anyway 10 responded to Mr. Snelbaker in regard to his correspondenc~ 11 on June 16th? 12 A I'm not aware of any direct communication 13 between Dr. opperman and Mr. Snelbaker. 14 Q Do you know if his counsel corresponded with 15 Mr. Snelbaker? 16 A Do I know if you've communicated with Mr. 17 Snelbaker? 18 Q Yes, by correspondence. 19 A I assume, yes. Yes, I do. 20 MR. MOLNAR: I have no other questions. 21 MR. SNELBAI<ER: I would move for the 22 admission of several exhibits. 23 THE COURT: Any objection? 24 MR. MOLNAR: The only objection I have is to 25 the measurement of the engineers. 24 " 1 THE COURT: Exhibits 1 throuqh 4 are 2 admitted. You may step down, sir. 3 MR. SNELBAI<ER: The township rests. The 4 authority rests, Your Honor. 15 THE COURT: Respondent. 6 MR. MOLNAR I Yes, thank you, Your Honor. I 7 call Dr. opperman, please. 8 Whereupon, 9 D. THEODORE OPPERMAN, 10 having been duly sworn, testified as follows: 11 DIRECT EXAMINATION 12 BY MR. MOLNAR: 13 Q Could you state your name and address, 14 please. 1~ A D. Theodore Opperman, 2812 Merion Road, Camp 16 Hill, Pennsylvania. 17 Q And how long hav$ you been a resident at that 18 adduss? 19 A Approximately 13 years. 20 Q In regard to the property that -- lots 12 and 21 I believe 16 and 16-A, the buildings, you are the owner of 2.2 those properties? 23 A That's correct. 24 Q Who is Susanna Potera? 215 A My wife. 25 - " ,- 1 Q In reqard to your educational background, 2 could you cite briefly what your educational backqround is? 3 A I hold a B.S. Degree in mechanical 4 engineering from Bucknell University, a D.M.O. Oegree from 5 the Univereity of Pittsburgh. 6 Q In regard to your engineering degree, did you 7 take courses in civil engineering? 8 A Yes, I did. 9 Q And did you become familiar in anyway with 10 measuring land? 11 A Yes. 12 Q Have you had an opportunity to take any 13 measurements on your property? 14 A Yes, I have. 15 'rHE COURT: Am I actually going to get a 16 dispute as to how far these distances are? Is that what is 17 coming? 18 MR. MOLNAR: There is another argument too, 19 yeah. 20 THE COURT: I am going to have a dispute on 21 the distances? 22 MR. MOLNAR: Yes. 23 THE COURT: Okay. Maybe I should take a tape 24 measure out and measure it myself. Go ahead. 25 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MOLNAR: Q I want to show you what Mr. Snelbaker had presented as plaintiff's Exhibit 1. with regard to lot 16-A, you have no dispute that that's within 150 feet, is that correct? A That's correct. Q What is marked as 16 on the map, have you taken any measurements in regard to the location of that building? A Yes, I have. Q And where did you measure? Where did you start? A I measured from what appeared to be a flag. MR. SNELBAKER: How about speaking into that thinq. THE WITNESS: I measured from what appeared to be a marking flag, which I assume was a lateral connection. BY MR. MOLNAR: Q Is there anything where that flag was located in terms of metal, plastic in the ground? A There appears to be a plastic clean out plug at that location. Q And you started at that point, and where did 27 e3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you measure to? A I measured to the point of property 16 East Main where the site of the existing sewer pipe exits that property. Q And what was the distance of that measurement? A It was greater than 150 feet. Q In regard to what is marked as Roy D. McCOY and it's marked as lot 12, had you taken any measurements in regard to that lot? A Yes, I have. Q And where did you start from that point? A Measured from the actual physical property where the sewage pipe exits that property to, aqain, a flag that appeared to be marking a clean out or lateral straight line, and that distance was in excess of 150 feet. Q One hundred and fifty feet. Was that flag similar to the flaq that was on the other side of what's marked as the ontranceway? A Yes. MR. MOLNAR: I have no other questions. CROSS EXAMINATION BY MR. SNELBAKER: Q Doctor, let me ask you, how many feet on lot 16 was your measurement, sir? 28 1 A I don't have that recorded with me right now. 2 It was within 5 to 7 feet or more. I did not write it out. 3 I was looking for the 150 teet. 4 Q I see. So you don't know what it is exactly? 5 A No, I don't. 6 Q But you know it's more than 150 feet? 7 A That's correct. 8 Q Would your answer be the same with regard to 9 number 12? 10 A That's correct. 11 Q Am I also to understand that you measured 12 trom where the sewer pipe or the waste line came out of the 13 house toward whatever facilities there are in the yard? 14 A Yes, that's correct. 15 Q In other words, you did not measure from the 16 nearest portion of the building? 17 A I did in one case, yes. On 12 East Main I 18 did. 19 20 21 22 "3 24 25 Q f'rom the nearest? A Yes, nearest point of the property was in excess of 150 feet. Q From where the pipe came out of the house? A That's correct. Q I'm saying from the nearest point of the 29 1 building itself from any portion of the building. 2 A That is correct, it's greater than 150 feet 3 from the nearest point. 4 Q When did you bring this to anyone's attention 5 after you got the notice back in 1993, I guess it was? 6 A Well, I was aware for sometime that I felt 7 that it was beyond 150 feet, and it was only, I would say, 8 within the last two months that I actually did the 9 measurements. 10 Q So you got the notice, but you didn't tell 11 anybody that you had a problem with connecting? 12 A That's correct. 13 MR. SNELBAKER: That's all. No further 14 questions. 15 THE COURT: Anything else? 16 MR. MOLNAR: I have no further questions. 17 THE COURT: You may step down. 18 MR. MOLNAR: Your Honor, I have no further 19 evidence. I do have some case authority if you are taking 20 any arqument. 21 THE COURT: Any rebuttal? 22 MR. SNELBAKER: No, sir. 23 THE COURT: The record is closed. Moving 24 party, off the record. 25 30 i~.: - r:: " j' f~tl , )..-r' ~l/') ;' , . I"; "'-,;' . ie" ~, . r: I. i .,1 II (' , " .,( f!l~' , l.',J , U:11 , : , 1 ~. , I. f : ~".. j I 1'1 ~'j '.. '.' , U . :_~:.'.T'""":'_~~'~':~.';"";":":' -~ ~;r"l..e. "r'~~""" ....~~i~'~ H ~~.! .~ ~ ~~ ~~ ~ ~~~ ~ ~B ~~ ~oo~ ~ ~~ i ~ i ~ ~ C/l 0 .---.-.. ......--- '. CD '. ". ----_.......- ...-.----. _.- :-~-===::;:;:'"~:.~:-:~....:==:;.._- ~ ~ ~ t: \l.i .- ~ \,; ~I == -: o :l ~ ~ ~ ~, ~ Q t- ~ "o~~~ ~ ~ 41 .; ~ ~ ;, tJ: ~ g ~ ~ ..-! 0 i(i ~ rJ ~ ~ j: Ii. Co --: '.,.. c Co 0 0: Co ~~~~~ ,...-l.. ... ~ ~ e =: ~ if, ~ 's ~ . II}" /i'1 " undcr thc Sccond {,Iuss Township Codc or thc Township Municipul Ordinuncc 10 cntilrcc such statutc ur urdinullccs. (5) Thc Triul {'ourt cml inlillding tllUtthc "Tuwnship CUll cumpelthc Dcfcndants to connccttu thc scwcr. uthcr thunthc Township cunnccting thc Dctcndullts us pcrmittcd ulldcr 53 P.S. * 6650\." (6) Thc Trial ('uurt crrd in linding that all ufthc Ilclcndunts propcrtics wcrc within thc one hundrcd lillY (150) Icct of thc scwcr systcm us dcscrihcd in 53 P.S. * 66501.1 und thc Tuwnship Ordinancc 85-7. (7) Thc Trial Cuurt crrd in grunting Ull injunction rcquiring thc Dclcndants to conncct to thc Silvcr Spring Township Municipul scwcr systcm ulld prohibiting thc Dclcndunts from continuing to utilizc thc on sitc scptic systcm atthosc propcrtics. (8) Thc Trial ('ourt crrd in linding that cquity has jurisdiction whcn an availablc statutory rcmcdy is adcquatc. (9) Thc Trial Court crrd in failing to lind that whcn un adcquatc rcmcdy cxist for n violation. statutc or ordinancc. procccdings in cquity cannot hc maintaincd. (10) Plaintiff has no standing undcr 53 I'.S. * 6650 I or 66501.1 to hring action against the Defendants. (11) Thc Trial Court crrd in granting injunctivc rclicf whcnthc Plaintiff failcd to prove that the Dcfcndants wcrc a thrcutto thc hcath and welfarc ofthc gcncral puhlic and spcciticully to thc rcsidcnts of the Silvcr Spring Township as uvcrrcd in purugraph 14 of thc Plaintifl's complaint. (12) Thc Trial Court crrd in granting injunctivc relicf whcn thc Plaintiff luiled to provc that there was irrcparable harm. ~ - :>- - b .. r.:) ~o g .... ,,1' .~ (,,),: ". I.J~'.:: I, r- :ti! .... :. ~ f..II,-I ~fl <0 :.~II;) " ," 4.... ' J ~:,: ..' :/i[;i tiy: t.,' r' LoI 1-1 ~ j.. .. C'~ ":i. .'. t:5 I'" i:3 t,)l '-' ~ ~ Lf) ~- ..lor [::; ~~: .. t:,'i ,~~ - ,-... .....7" -. (,Jr'; ( ".,' .- .:,) ~/~ r: <,' -,~ "t'..t ...'. ',~J ~;1 9r- l:": r- ;.:rt) 6:",rl: '" ;i'}~'1 J:'~ t..'J 1'.lr.i.I L.. , V:! IJ~ r: L-I (;" " In .~ u .;" U ~, l ), '. . ..\ 'k~ " " .~. ..\ "h~ <~ .\ ,'j '~ "- II' I , ''f) ~i i Itll ~ \\, n ,:':'1 ::Il ,'I ,~ ~ '~ -;- V " , , \\ 1'0 ) -.,\ , ,~ , " C-' " I f , ~ t " [, ,. 1~ ", " , I ~.) ~, I.. ,..' .,\ , 0) l , I '. , --,J ,;>t,' '-J _'.:';:"--:==;;:'-':''';;~;'~:'' ~~;;;-:::~::-;;~-:c.- ......_--,.....,. . ...-- ~~-_._- ....._c____ -. --_.._.-._-~. .___ . ;;;-~-.::'~ '::~:.' '-,'_1 .:_::;;;;.=-.;~=:=;-::;';':;:l~'..:.:;:::-=:':::-' ..._-~..__.--- ......---- ;~ ~ S1 0 ] ~ i~ I~ '~ ~ H ~ ~ . ~cO ~ ~~ ~ ~ 0 ~ II tl ~I H 8: ~ If) ~ . ~~ Cl H If) -=--:-=-;--.:.;:.._=~-==:.';-;~-:;,.=-~=-=.':::=:~-=:'':-'==-~. ~ ~ L; r. E ~ 0'" -: ~, if. ~ C ~ ~ 0:: ilo <f. C ~ ~ ...: - o Q, - -: "4 ~ ~ Q == ~ f-o ~ - ~ - CI ... -: - - -: - r: ~ ~ Q -: ~ ~ '" ... ... -: " .. ~ 'l ~ - '" ..; '1. - '" ',' ~ ~ ~ '1. Q, ~ r:: , . C ~ ~ ~ Il: e <: ~ Q ~ ... ~ _.,_-:::-;~"+--=~~==--==---::;-,-':._... -.:-' ~.~. --._--- - I . . . .' pYS!HO 19ge-04J24 Cumber!. id countf, Prothonotary' B Ol. !ce Page . 1 Civil Cas Inquiry COMPLAIN' - EQUITY Filed.....,... 8/13{U Judge AllIigned r Judgmentr BAYLEY EDGAR B ,00 Superior Co Execution Date Sat/Dis/Gotd. . Jury Trial.. . . 0/00/00 0/00/00 **...****.**..................................................*.....*...*****.*. General Index Attorney Info PLAINTIFF SNELBAKER RICHARD C B~~~~B~~1 ~gt~~~ ~g"~ l6~V~~I~~RING TOWNSHIP OPPURMAN D THEORDORE POdRA SUSANNA B Judgment Index OPPERMAN D THEORDORE DECREE NISI POTERA SUSANNA B DECREE NISI *.**...*..*..................................................*.***..*..........* * Date Entries . .......*........................................................................ COMPLAINT - E8UITY SHERIFF'S RET RN (SERVED DEFENDANTS 8/23/95) SHERIFF'S COSTS S36,40 PD ATTY PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFENDANTS BY JOHN MOLNAR ESQ ANSWER AND NEW MATTER JOHN MOLNAR ESQ FOR DEFTS ~~~r~I6g ~~~ ~~fl:~~I~k~~ INJUNCTION - PI.FF ~H~~~/~~ ~~~~TN~DgARp~T~~i5~Ypi~~~~INARY INJUNCTION WILL BE 11/9/95 iloO ~M COURTROOM II 11/27/95 PRAECIPE FOR LISTING CASE FOR TRIAL R C SNELBAKER ESQ 11/22/95 ORDER OF COURT AND OPINION EDGAR B BAYLEY JUDGE IN REr PETITION OF PLAINTIFF FOR PRELIMINARY INJUNCTION 11/22/95 PETITION FOR PRELIMINARY. INJUNCTION IS DENIED 11624/95 COPIES MAILED OR ER OF COURT EDGAR B BAYLEY JUDGE ADJUDICATION E8UITY HELD CR 2 8r45 AM WED 12/13/95 TRANSCRIPT LOD ED DECREE NISI IN REI ADJUDICATION AND DECREE NISI DEFENDANTS SHALL CONNECT TO SILVER SPRING TOWNSHIP MUNICIPAL SEWER SYSTEM PROHIBITED FROM CONTINUING TO UTILIZE ON-SITE SEPTIC SYSTEM BY THE COURT EDGAR B BAYLEY J TRANSCRIPT FILED EDGAR B BAYLEY JUDGE MOTION FOR POST TRIAL RELIEF PROOF OF SERVICE ORDER OF COURT EDGAR B BAYLEY JUDGE 12/27/95 MOTION FOR POST TRIAl. RELIEF IS DENIED ***...............................................................*......*...... * Escrow Information * · Fees & Debits Bea Bal Pvmts/Adi End Bal * ........*..*..........*.........................f............................... 88/14/95 8130/95 YI~~!~U I ~2 ~95 12/01/95 U~B~B~ 12/lg/95 U~~X~2~ 12/27/95 COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE 35.0~ 5:8~ 5.00 35.00 .58 5.0 5.00 .00 :88 .00 45.50 45.50 .00 **.................*..............***.......................*................... * End of Case Information . ........*.*......**...*....................**...................*...*....*...... TPU', COrY FROM RECORDh nd I 'I' t:" ,,'/ "I",." f I lide U'ltO ~ct Iny 8 n L'" ,II '.' .\, .1 ., ond 'the ,c,i1 01 wd U.,'Ht ,1\ (.)r1,~\a, I d. ) '1 <II. ddY Ofl::fl . , ",;.:~. Thll >,," , H- I ,/ L- / , 'K, r.'ItJlh " , - -,.-.'tt ."",,& 7 1 Prolhonol8l'V .~, -, IN THE ~OMMONWEALTH COURT OF PENNw.LVANIA NOTICE OF DOCKETING APPEAL Docket NOI 0271 C.D. 1996 Filed Datel 01/26/96 Re: OPPERMAN and POTERA v SILVER SPRING TWP. Lower Court No.1 95-4324 EQ A Notice of Appeal, a copy of which is enclosed, from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. Th$ docket number in the Commonwealth Court is endorsed on this notice. The Commonwealth Court docket number mUGt be on all correspondence and documents filed with the Court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, includinq the opinion of the trial jUdge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa. R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set f.orth on page 2 of this notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907(b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on page 2 of this Notice. If you have special needs, please contact this court in writinq as soon as possible. Lower Court Judge: Honorable Edgar Bayley Jr. Attorney: John Molnar Attorney: Richard C. Snelbaker Notices Exit: 02/09/96 Prothonotary . 1 .. , " 1 , I J ' , , " ..- C J r~~ ~'l , I ,') . ) .'l( II ':.' I . , (,1 ~'.~ . L) -- I !~J , I I tll' , I .' , I , J I. ,I , <. " I '. ---;;:-::;=.:::-----_::.::;..;.;:-.;:-=--:::~=.:.~.:::_.;~;J.r:M__;;:=:;:;;:;.._:_~_;.:;~_::.:~";:-... :..::::-.t;., l"..:=::;.;'"':-;-;'':::"":-:--:C-;":."';:;'-'_~~~':-;-::-::-:-.:=.:;::t:-;>;:.:.:.::::.:.:.':;.:.:::.::='-=:.=,,"---':t;.~"-.::.;;;:::~.;:.;c~-=:=;:"':!.l::'"_ tn ~;S r- Z ~ III ~~ '" '... iJ :(. b U1:.! '''' t:: ~I '< .:i~ .,., t, ~~ l.J '" ti t:: t:: K8 ~ ~ .,., 'lJ ~ :>: <1l '" '''' 0 "'~ ~ "" .... t:: ~ E~ ~8 ~ "" ~ r- .... "" .. ~ . :c ~ . 8 '" '" l4u ~ ~ ;I. ~ ;.: . ~~ ~ ~. u~O'~ ~ '" "" il w.... ~ ~ 7. ~ \J Q tr..~ t:J I-< "'0 i>! 0;:) 10' ,,"f-< . @. " . f-08zw l:J @j;S: ~13 " z ~ ~ ~ O-t .... ........ S....N ". . w . rr- '( 8~tJ~ e;r.: "'<'I ~<J ~< ~ 0 ~B:~ .... .::l.r, j lo.l I.Ll i ~~ ~t'J ""~ Z v :i l/) UJ z~~~ ~~ VI ~ ::i H U u~. U1.r, d~ .----~,-..."-- -- ---- "- *--.-"-- , -l'il'~ '..; e ) It, ,o( LAW 0"1(:16 SNIEL.BAKEtt llr BRENNEMAN -.... ,- 3. On December 27, 1995, the Court dented Defendants' Motion for Post-Trial Relief, thereby causing the Decree Nisi to become final. A copy of the Order of December 27, 1995 is attached hereto as "Exhibit B" and incorporated herein by reference thereto. 4. Defendants have not connected their premises at 12 and 16 East Main street, New Kingstown, Silver Spring Township to the silver Spring Township municipal sewer system, and have continued to utilize the on-site septic system at those propertiee. 5. Defendants' action and/or inaction as averred in Paragraph 4 above is in blatant disregard of this Court's decrees. WHEREFORE, Plaintiff, silver Spring Township Authority, respectfully requests your Honorable Court to enter a RUle upon Defendants, D. Theodore Opperman and Susanna B. Potera, to show cause, if any they have, why they should not be held in contempt; and, after hearing to enter an order adjudicating Defendants in civil contempt and imposing appropriate sanctions to enforce future compliance with the Decrees of this Court entered December 13, 1995 and December 27, 1995. Respectfully P.C. B Date: ';bNU'1 ~I . Snelbaker 4 West Main Street Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiff , 1996 -2- . . ~ - SILVER SPRING TOWNSHIP IN THE COURT OF COMMON PLEAS OF AUTHORITY, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. D. THEODORE OPPERMAN and SUZANNA B. POTERA, DEFENDANTS 95-4324 EQUITY TERM DECREE NISI AND NOW, this .J.'J, day of December, 1995, IT IS ORDERED, ADJUDGED AND DECREED: (1) D. Theodore Opperman and Suzanna B. Potera, owners of 12 and 16 East Main Street, New Kingstown, Sliver Spring Township, (1) SHALL connect to the Sliver Spring Township municipal sewer system, and (2) they are PROHIBITED from continuing to utilize the on-site septic system at those properties. (2) The prothonotary shall enter this Decree Nisi and provide a copy of this Adjudlcatlon and Decree to counsel. " Richard C. Snelbaker, Esquire ,For Plaintiff John Molnar, Esquire For Defendants :saa EXII[BIT ^ ,......'" ,,""". II. "1.llter"I" IIhnl I mellll thnt. rnrt of the AIIWPf AYlltll'. ""tll",II",, hom n B.w~r to the cUlh Itll' or. If thllre IIhll II I,,, 'II' ,.",h 1111', to t.h. "rnperty It II " or, If no lIueh t.nt."d IIhnl' hll provld",I. th,," "I.lltllrllt" IIhnll lI1un thnt portlnn of, or "In... In, n A"wnr which h prool,II.., for conn...tl.on nf nlly nllt..1I nil Bewer I II. "Owner" ..hill I 111. II n III1Y lIoln Perllon vellted or pllrHal. wlth OWllnrll"II', hAil!. or e,,"ltll"la. lml'rov..d "rop.rtYI I, "huolI" IIhllll mun nny Illlltvldual. partnarllhtl" eompnny, a'80elllttnll, Inel.ty, t rUllt. corpornHnu. lI1unlr.lI'"11ty. munldpaBty authotlty or other Aroul' nr entltYI of ""y .1. "BlInltnry Sllwallll" IIhn1l. mll"n normal watar-ellfr 1..,1 hOlln"h" I,t and toU"t WlIlItelt from nllY Improved Property I K. "Silwer" Ihll11 mun lIny ptp" IIr conduit conlHtuttllll e pnrt of the Sewer Bylltem IIl1ed or ullllbla for IIPwnRe cIII'.etlon putpolelll I.. "SlIwllr SYltem" Ihllll 111'"11 nll fndUHtII, III of nny pnrtlelltnr time, fllr coUeetlnlh pllmpln8' tU"llI1ltth'R, tr..ntfllll lI"d dhpolIllIl of SAnlbry A.wnlle and/or tndllltrtnl Wllnt"". nUune In or AdjAcellt to t.hh TOWlllhlp, IIl1d ow,,"d by thp Authotity I M. II~tt.llt" IIhil1 ~eln ~nd IIhnl1 Include Iny IItrll..t, rond, lAne, cllllrt, cul-dll-lIl1e, nll"y. pllhHe wny or p""Ue "'I"nrn I nnd -l- -'" ,"'" II. "'II1,,,,,.hlp" ehall meBn th. 'I'IIWIIAhlp of silver SI,rh1t, IlIm"nrlftllll I:ounty, Pllnnsylvaal.. a town.hlp of the AI."'"ncl cln.'1 nl the Iloonl1nwulth, ectlnR "y and throlll\h Ite Rnard of RIIIIf.'fvlloU IIr, in epproprlate c.nas, .ctina by and thrllllllh fU nuthorhl.1 repreaentativll. ~'I' Lf1!\-1!-. ~9!_..!'.\I.~1.tC BEWlmS l\t.:!I!I!RF.~ 6~I:'rtllll loUI. th. Owner of .ny Improved Prop.rty aeeualble to .nd whll" prllldpnl ",,11,11\\1\ 11 within 150 het from the Sewer By.te.. shall connect IlIeh Imptllvlld Prlll'erty wlth and "hill uae such Sewer Byetllll in euch manner II thl. TOWllfthlp may r"'\lIlrl. w1t.hln 60 days sfter notice to .ueh Own.r frOIll thi. town.hip to ml!~e Aud. connettion, for the pnrpose of dlschua' of all Senlttry Sewage Rnd lnllllnt rtn' WOItea from euch Improved Property I Subjeet, however, to 8uch limltatione nlllI reatrictions .. ehlli be uUbUshed herein Dr otherwlae ehsll loll utabllnhe,1 by thl. TownAhlp, from time to time. Sf.C'I'100 2.02. All Sanitery Sewage and IndueUhi Was tee 'rom any Improved Propnrty. after connection of such Improved Property with a SAwer ahall be reqlllre,1 untler fonc!:lon 2.01. sholl be condocte,1 into a Bewer; Sob.l"ct, how- ever, to nlleh 1 IInltnt lone and r..ulctlon. ae shell be ntabUehed horeln or ot.herwl"" ehatl he rnl "hilahe" by thll TownshIp, from tiDle to time. SI'.l:TllIH 2.11:l. No Potion .hall place, shell depoeit or ehnll permit to "e pler'l<1 or 10 Ion depo.lred Ul,oll pubLIc or prhate property wlthln thiB TownBht,p nny 6nllttllry !levnae or 1I..lu8trlal WenteA In violetion of S,,~II"n 1.01. 110 Perlllln "hell d lechArllo or AhAII Ilffmlt to "e dlechArv,e,I to eny natllral I1utlnt withIn thie Township eny Sanitary Seweae Dr IndustriAl W"ntee in -4- ,-- vt,'lntlnn 0' Hr"'I"n 2,01, a,".pt wh.n 'lIltnht.. treatment hu I,,'''n provid.d whlrh I" Mtln'nl'lnTY to thh Town.hi". SF.l:Tllln 1.04. No privy vlllllt, .0B"po,,1, eln~hot., Beptle tllnk or Ilmtlu r.enI1tnd.. "hdl h. IIn.t 01' 8hllll be mnlntntn.... It IIny tin'.. upon .ny Improvnd Pror.rty wh teh h." bun connected to n RewPl' or whtch .hnll he requlurl IInrl"t Snetloll 1.0' to he connectnd to II 8ewer. F.vrry nll"h "rivy vnlllt, cu"poo', ,,'nl<hnin, .0pH" tnll~ or nlmilllr re""l'tncln 'n n.I.tnnce .hnll be 1I1111l1doned nn.l, lit tho dhcnHon "' thte tOlln- nhir. "hntl hI' "'..n""ed nnd nh,,11 he fille,\, "t the expeu"e III th.. 1I""..r of nlleh hnprov.d Frnl'rrty, under the .\lncHon nnd nllp..rvlAton of thtn Tnwnnhtl'l nod "oy ""ch 1,,'lvy VIlII1I, "eIlBpool, nllll<hole, lIel,ll. 'nllk or IItmllnr rorrld-ode not ,,0 ""nn,lnM" n",I, If u,\lIlred hy tht" 'fownnhlp. not de"n"",1 nnd f' lied, IIh"H Cllnnl tInt.. " 'n" nnn"f, nnrl nlldl Oil innnce mny hI! nhntl!d, nn "rov l.l,,,! hy lnw, lit t"l' "'I"n,,1' ..r Ih.. Owner of "lIeh lmprove.1 rrol'orty. RFr:T11111 2.0~. No privy vnlllt, clln",'ool, Rinl<"ole, nrl'lIc t""k or "Imllnr ypr.prln"l.. nt IIny tln,e 8",,11 he connpet..d with II Sl'wl'r. Rl'I:T1l1tl 1.116. The noHre by thl" "own"htp to mnk.. n """I1"cHon to n Rewl'l, rerl" rl',I '" in Rl'ctlllll 2.1l1, "hnll. "Oo"tnt of R copy Ilr ,''',, Ordln"nce, tncllllllnR IIIlY nmrorlment" or ""ppl_ement" nt the time t.n eflect, nr " "ummnl'y of enrh Roctll'" hr..ru', no.1 " wrItten nr printl',I document re,\utrlu", ,lor connecHon In ncrolllnllr.. \11th ~he providClnll of thIn lltdlnnnce nllll "I'prtfvlllp, thnt luch connection "hnll he ",edll within 60 dny" IIHer the dnte IIlIch nott,... tn liven Of "..tv..d. RIlI.h not.t.ce mny be !llvnn or urved nt nny Ume nftpr II Rewlr ill in 1'111"" vh'ch rnll rllcllivl "nd enn convey 8"nltnry Sewlllle IInd Indu,," 'n\. Wlllt.. for trrn'mpnl n,,,I ,11111'0,,"1 from th. rnrtirulnr ''"rroved Propl'rly. Rorlo, noticl 8hell , he "Ivp" ",- lI"rv..d II1'0n the Owner in ",,"ot,I"n,," wlth Inw. ..5.. ,.-, ...-- A!!IICI.E lit !!!Jll,IllNU S!~~r,RS ANI) 2.lNtlV~:J!~.!! Sf:l:'flIlH I.UI, tlo l'erRlln ohAII unrovar, nhntl connect with, ehnll. make Any opltntnR tnto III /lh,II nna, ehlll niter or Ih.11 .Ilaturh, in eny me",Il", Iny 8ewor or /InY pnrt Ilf tho Bewer 8yltem without flrllt obtAininB' n \,er",tt, in writinll, rrlll. thls ro.",,"hlp, SJ-:l'TI(l1I 1.1l7. Appllcntlnn for II pnrmtt l'e'lulred under Beett"" 3.01 ehdl be me,I" by II,. ''''ner of the Inlproved Property nerved or to be euvl'" or by the duly Ruthnrhe,1 nR""1 of Illleh IIlInor. Ht',l:'flllll \.0 I. No Poreon Ihll11 mllke or "hlllt CIIUBO to be Ino,le · connection of AllY Iml"nvod Property with II Bower untll Iuch Perlon Ih,lIl hllve fulfilled Mch uf th,' followinB con,lItlonl' ^. 8"d, Penou nhn 11 hovlI not if le,l the Blcretnry of thlll "owuRhtp of the dBlire end inteutlon to connect luch Improve,l I'lopnrty to a Boworl B. 81lrh Perlton ohol1 !lIIVII Ipp11ed for Ind ahll11 hllve obtllne" e pormlt Ie uqutud by BecUon l.otl I:. 81ld, Peuon ehell hove Biven the Secutllry of thh 'fown8hlp 01 IMat 2" hOllre' notice of tho tlmll when luch connert ton will III midi 10 that thh Township DIllY aupervlee nnl' In81,oCI or mey ClUle to be .upetvlecd .nd Inapected the work of cOllnertion "nd nece...ry teltlnll; ond Il. tr nppllcllbll, nllch !'arlon eholl hive furnlehed entisfnl:tory "videllcl to the Secretllry or thle Towlhip thnt nny tnl'pln!\ (or connecHon) he which mAY bl ch"r.ea end impoled by the Authority IllIinat thl Own~r of Ileh Improvld -6- ....... ,-, Prol'''tlY who connect~ nnrh 'mprov".1 Propprty to n Rpller linn 10"1'11 p"I.I. RH'I'1I1N 1,0/,. F.xrept ~n ollllltw!~p rr"vl,!...' In th'~ Rnrtf"" ~.lM. ench Imrrove~ Propnrly nhnll b. rnn"nct.d n"p"r~tely nnd 'ndere"~e"tly with II Sewer thtollllh II nlll1,lInll Rewer. Urnllr'nll ol' mor" thon one 'mrroved Frnp"rty on one Bulldtnll newPr .hnt! not be I'nrmttte~, ellcIIl't III1~pr Ap.dnL drrll"",t"n"eA nnd for IInn.1 ..nnltnry rPlleon" .It other 1100.1 ClllIAe "hnwn. hilt then nnly nft.., .".ctnl rermf"nlon "f thl. Townllhtl" .In wrltlnll. IIhnll hnv" bpen lIeCllln.I nnd only nubJ"rt to IIlIrh rlllnn. rel\1I1ntlon" "n~ rnn~II!""A IIA mny bn rreAcrfhe.t by thin TownAh1r. flECTION .1.05. ^tl COAtll IInd ellpellA"A nf ('on.truction of II Buildlnl Sewer nnd "II rORtn IInd exrenA"n of connection of n BuUding Sellnr to II Bewer Ahnll he born" hy the Ollner of the Improved Prorerty to be connect".! I end euch Owner nhnll '"dnmnHy IIhd nhnll IInvlI hlltmlenn thin Township nnd thl!! ^uthority from 011 Lnll" nr .lnmI8' thnt mny be oecnlllo".d. directly or Indlrretl)'. IS II Ulllltt of cO"Atrllctloll of II Bnlldlng Sewer or of cnnnection of II nulldln8 Bewer to II Sewnt. flF.CrJoN 1.06. ^ nulld!ng Sewer 8hnll he connecUd to " Sf'Wer nt thl plnce ,tenlllnnt",! by thb Townnh!p or by th. ^"thorlty nnd wherl!, If nppUcable. tbo t"tnrnl In rrnvtded. lhn !lIvnrt of II nllUdlnl! Sewer lit tho pnlnt of connectIon nhllll be nt the ""mll nr " hl~h"r e1evntion thA" th" invert nf the S@wn. ^ "mnoth, nut .Joint "hnll he mml. and the connection of n 8ul1(11n8 Sewer to the I AtllUI .hall be ..nde ""clln ""d wlltert IRht. !m:1'I1lt1 3.01. If the Owner 0' nllY tmrroved Prornty 1."."ted vithin thlA Tnwnllhlr """ ncc...Lhl. to An.! wlt""P rrtnrtr"l buUdlnR IS "HIltn t50 r...t fro", t.ho r."",,'r RV"lelll, nft..r Ml dnynl nntlce frnm thil Tow,,"hll" III nr.cordnnclI -1- ,....., ,......, wilh Sectl"n 7.111, 01,011 fnll to connect luch IInl,rov,,1 Property, nl r.'II"nd, this To"'n~hlll mllY "n'~' upon ~nch Improved Prol.erty end COnBtrlll'" euch connection nlll' n,"y 1'111 ,,"'1' from euch IIwner the co~ln mill upeneen thereM In the menner permitted hy Inw. ~Jl'flCI.E I V ItlJl.ES ANII HUlJLATlONS UOVf:RNING !1!'II~I!Na SI~IIP.IIS ANII CONNECTIONS TO SP.WERS Sl\CTION /..111. Where nn Improved Property, At the time conn.ctlon to e Sewor 11 rp~lIlrlld. nlln II II. nerved lIy itn own eewARo diep08el .yetem or newdse ,1111'0101 devtr.e, rllll ".lnHns hOIlAe sewer line Ihall be brok.n on the Itrllcture side of Alleh AewAIl" dt~poellll nYltom or eew8se dispoeRl device end ettnl'hmont nhnll be mAdo. with plllpcr f1 tt tnge, to cont inue AIICh houee Rewer linn 81 e Butl.tlng Sewor. SI':C1'JllH /..07. No Building Seller 8ha11 be covered until it hee been inepected ' nnd dpprllvD" by thin Townlhip. If any pert of . JluUding Sewor 18 covered before AO befllll illlpected end _p!>roved, It 8hell be uncClvne,1 for InepoctlCln. At. tho "oot olld expenle of the Owner of the Improved Properly 10 be connocted to n Sower. IlF,C'J'lUN /.. OJ. .:very Bulld ing Sewer of Any Improved Property elln 11 be maintained tn 8 nntlllery and ufa operating concl1tion by the Owner of euch Improved Prllperty. SF-CTIllN 4.tJll. Every excavatinn for a Bull,llng S.wer .ha11 b. B"Rrded Ado~lIIltely wlt.h bAr. t,".1UA and Hglltn tCl protect 011 Persone from dRlnnp" And InJnry. Any Slrp~t., "1"~"Alk on,t othu pnbUc property d18turbed in the "IIurle Clf inltlllAtlon of " fl,,' "Hnl Sewer ehell h. uetor~d, .t the COlt end """.nllll -B- ......., _. , nf till' IIIIOIIr "r th.. Imprnv~ll I'rnpllrt)l blllnll ~onllnr.t'll, in II mllllll~r Rnthfaetory to thin TownRhlp. RI',r:'I'llltl ".0'. If IIIIY Pirllon IIhlllt rn II IIr IIhll11 ufnn., IIpnn ueelpt of " notle. or thlll Townllhlp or the ^"thnrHy, III wrltlnll, tn rp,medy IIny IInllnttn'nrt.nry rnn.lItion wlth rtllpllct to A nnl!rllnll Sewer, wlthlll 60 dl" of neel.,t nf A,,,'h "nHc', thIn TOIIMhlp or t.b. ^nthnrlty mllY refllAO tn pumlt IIl1eh r.r8ml to ~ln~'.rR" SlInltnry ~.1I11811 and to~nAtrlnl WIIAten lllto thn R.ller 8y"tem III1H t AIICh III1AntlAhctory eOlllHtlon ahall hllv" h"~1I remedIed tn th.. nllthfActloo 0' thlll 1'nw'1'.hlp IIl1d the ^"thnrlty. f,F.r:TlflN '..06. thlA 'l'owOAhlp rllop-rV..1I the rillht to IIdnl'" froln tlmll tn t1m.., nrl.ltll"".' 1111.11 And rellnlntlollll on It nholt d.em o"renRMY Alld prnpllr rnlnt '"11 to 1~"'I11,,,..tloll' wlth n r.,wer anrl wlth tho Sawer Ry"tnm, ~Ihlrh IIddltlonnl flrI.." 1111,1 rpp." I nt.lon., to the elltant .""roprhte, ahn 11 hp. nll,l shill! be cnnntr".,1 Oil rArl of thl! Ofllinnllr', ~:r.!9.~'!. Ell FOR(~g.l!!!!. ~f.r:r1lJll 5.01. ^ny Penon who nhnlt vl.olllte thle lIrrl'nllnce IIhall bp. llnbh, "I"'" ."".,,,lIry cllnvlrtlon for II flrnt nff,mllll and I.pon A,""",..ry eonvlctlclll for Pilch nllbM'llIlIht offenne, to" ftnll of not lellll thlln TV'"'y-rive 0011111. ($25) nor '",orf! thnn three Hundred lJollnrn ($JOO), tOllethpr wfth colltn of rfoneel1tir>" 'n ,,"eh cline. F.llr.h dllY thllt A villldion IIhnll cnnt.inUII Ihll11 hI? d...m"" An~ IIhnll bl tIlken to bll . npllfllte nfhn.. IInd ehllll b.. punhhnble M ~",~h . -9- \ JNELBAKER 8 BRENNEMAN ^ PIlO,IMIONAL <,:o~ollAnot'l ^TTOI\NEY~ ^T LAW oW wur MAJN ~r)l.UT M~CHANIC5BURG, PENN5YLV~LA 17055 p. O. lOX JIS ,^~IMILl <l\l) aeNeal IUCHMll c. ~N1UMU\. IWTll o. tlUNWlMAN ,HIUP H. ~'Ml 117.elJ/'lie.UI June 16, 19915 D. Theodore opperman Susanna Pot era 2812 Merion Road Camp Hill, PA 17011 Re: Silver Spring Township Authority Premises: 12 and 16 East Main street, New Kingstown, PA Dear Mr. opperman and Ms. Potera: I write you in my capacity as Solicitor for the silver Spring Township Authority, the owner/operator of the sanitary sewerage system which has been installed along your property identified above. I am advised by Authority personnel that appropriate notice has been given to you requiring connection of the above premises, and that you have ignored the notice by failing to make connection within the time allowed. At its meeting to be held at 11:00 o'clock A.M., E.D.S.T., on Wednesday, June 21, 1995, we will seek authorization from the Authority's Board to immediately tile an equity action against you to compel connection to the sewer system. This notice is given to provide you with a final opportunity to contact the Authority office, obtain necessary permits and arrange for physical connection to the system. Any such action must occur prior to the Authority's meeting on June 21, 1995. Very truly yours, Richard C. Snelbaker RCS:pjt cc: Silver spring Township Authority ~s \ \c ~ PV_';) II C\ u. Whenever a sewer system is or shall have been established or constructed by a municipality authority within a township of the second class, the township superv isors shall be empowered, by ordinance, to compel all owners of property accessible to and whose principal building is within one hundred fifty feet from such sewer system to make connection therewith and use such sewer system in such manner as they may order. The township supervisors may, by ordinance, impose penalties to enforce any regulation or order they may ordain with reference to any sewer connections. In case any owner of property accessible to and whose principal building is within one hundred fifty feet from a sewer system establ ished or constructed by a municipality authority shall neglect or refuse to connect with said sewer system for a period of sixty days after notice to do SO has been served upon him by the township supervisors, either by personal service or by registered mail, the township supervisors or their agents may enter upon such property and construct such connection. In such case, the township supervisors shall forthwith, upon completion of the work, send an itemized bill of the cost of the construction of such connection to the owner of the property to which connection has been so made, which bill shall be payable forthwith. In case of neglect or refusal by the owner of such property to pay said bill, it shall be the duty of the township supervisors to file municipal liens for said construction of said connection, the same to be subject in all respects to the general law provided for the filing and recovery of municipal liens. Sections 2.01 and 2.02 of Ordinance No. 85-7, enacted pursuant to section 1501.1 of the Code, provide as follows: SECTION 2.01. The Owner of any Improved Property accessible to and whose principal building is within 150 feet from the Sewer system shall connect such Improved Propert.y with and shall use such Sewer system, in such 2 On August 11, 1995, Silver spring Township Authority <Authority) , the municipal authority owning and operating Township's "sewer system, II filed a complaint in equity seeking, (1) to enjoin Landowners from continuing to discharge sanitary sewage into private septic systems located on their properties at 12 and 16 East Main street, New Kingston, Silver Spring Township, and, (2) to compel Landowners to connect their sanitary sewage generating facilities to the municipal sewage system. Authority alleged that Landowners were di~charging sewage into their on-site septic systems in vio\ation of Ordinance No. 85-7. A hearing was held on Authority's equity complaint on December l.3, 1995, following which, the trial court entered a decree ~ directing as follows: (1) D. Theodore Opperman and Suzanna B. Potera, owners of 12 and 16 East Main street, New Kingston, Silver Spring Township, (1) BHALL connect to the Silver Spring Township municipal sewer system, and (2) they are PROHIBITED from continuing to utilize thp on- site septic system at those proper-ties. l21 Landowners filed a motion for post-trial relief on December 26, 1995, asserting that because Authority had an adequate remedy at law, the equitable relief granted by the trial court was 2We note that this order was stayed, by order of the tr.ial court dated February 27, 1996, pending the appeal here. 4 unwarranted. By order dated December 27, 1995, the trial oourt denied Landowners' motion for post-trial relief.3 On appeal, Landowners' only argument is that the trial court improperly granted Authority equitable relief when an adequate remedy at law existed.4 specifically, Landowners maintain that because section 1501.1 of the Code, set forth hereinabove, specifically provides enforcement provisions for violations thereunder, an adequate legal remedy existed and equitable relief was precluded. We disagree and affirm the trial court's order. The trial court, in concluding that equitable relief was warranted here, relied on Section 1501.1 of the Code, noting that this Sectlon provides alternative remedies to a municipal authority seeking enforcement, namely, to "compel all owners of property. . . to make connection (to its sewer system)," or, in the alternative, 3we note that the trial court denied Landowner's po~t-trial relief motion one day after it was filed. This was improper as the trial court should have conducted argument on the issues raised in the motion in order to define the issues for appeal. However, we merely wish to point out this error since the parties did not raise the impropriety of the t.rial court's failure to conduct argument in relation to the motion, either before the trial court or on appeal, and because the only issue raised here by Landowner's was addressed by the trial court in its opinion denying post-trial relief. 4Landowners do not dispute that they are disposing of sanitary sewage into on-site septic systems in violation of silver spring Township's Ordinance No. 85-7. 5 ~'I' '.. r ~". '" " ,. , U' I , r: II., u: fl'I' ' t-.. \.1.1 ! :':---/11 r L " I.,. I ,. ..L , ,,, IJ,_ I" '. (J' '-'I' (,) , ' Whenever a sewer system is or shall have been established or constructed by a munioipality authority within a township of the second class, the township supervisors shall be empowered, by ordinance, to compel all owners of property accessible to and whose principal building is within one hundred fifty feet from such sewer system to make connection therewith and use such sewer system in such manner as they may order. The township supervisors may, by ordinance, impose penalt.ies to enforce any regulation or order they may ordain with reference to any sewer connections. In case any owner of property accessible to and whose principal building is within one hundred fifty feet from a sewer system established or construoted by a municipality authority shall neglect or refuse to connect with said sewer system for a period of sixty days after notice to do so has been served upon him by the township supervisors, either by personal service or by registered mail, the tOlmship supervisors or their agents may enter upon such property and construct such connection. In such case, the township supervisors shall forthwith, upon completion of the work, send an itemized bill of the cost of the construction of such connection to the owner of the property to which connection has been so made, which bill shall be payable forthwith. In case of neglect or refusal by the owner of such property to pay said bill, it shall be the duty of the township supervisors to file municipal liens for said construction of said connection, the same to be subject in all respects to the general law provided for the filin\! dllU n!<.;overy of municipal l.iens. Sections 2.01 and 2.02 of Ordinance No. 85-7, enacted pursuant to Section 1501.1 of the Code, provide as follows: SECTION 2.01. The Owner of any Improved Property accessible to and whose principal building is wi thin 150 feet from the Sewer System shall connect such Improved Property with and shall use such Sewer System, in such 2 On August 11, 1995, silver spring Township Authority (Authority) , the municipal authority owning and operating Township's "sewer system, II filed a complaint in equity seeking, (1) to enjoin Landowners from continuing to discharge sanitary sewage into private septic systems located on their properties at 12 and 16 East Main street, New Kingston, silver spring Township, and, (2) to compel Landowners to connect their sanitary sewage generating facilities to the municipal sewage system. Authority alleged that Landowners were discharging sewage into their on-site septic systems in violation of Ordinance No. 85-7. A hearing was held on Authority's equity complaint on December 13, 1995/ following which, the trial court entered a decree ~ directing as follows: (1) D. Theodore Opperman and Suzanna B. Potera, owners of 12 and 16 East Main street, New Kingston, silver spring TownShip, (1) SHALL connect to the silver spring Township municipal sewer system, and (2) they are PROHIBITED from continuing to utilize the on- sit/3 ooptic Systlill,) at; thos,;" pLoperlles.l1l Landowners filed a motion for post-trial relief on December 26, 1995, asserting that because Authority had an adequate remedy at law, the equitable relief granted by the trial court was 2we note that this order was stayed I by order of the trial court dated February 27, 1996, pending the appeal here. 4 unwarranted. By order dated December 27, 1995, the trial court denied Landowners' motion for post-trial relief.3 On appeal, Landowners' only argument is that the trial court improperly granted Authority equitable relief when an adequate remedy at law existed.4 Specifically, Landowners maintain that because Section 1501.1 of the Code, set forth hereinabove, 5pecifically provides enforcement provisions for violations thereunder, an adequate legal remedy existed and equitable relief was precluded. We disagree and affirm the trial court's order. The trial court, in concluding that equitable relief was warranted here, relied on section 1501.1 of the Code, noting that this section provides alternative remedies to a municipal authority seeking enforcement, namely, to "compel all owners of property. . . to make connection (to its sewer system)," or, in the alternative, 3We note that the trial court denied Laildowner's post-trial relief motion one day after it was filed. This was improper as the trial court should have conducted argument on the issues raised in the motion in order to define the issues for appeal. However, we merely wish to point out this error since the parties did not raise the impropriety of the trial court's failure to conduct argument in relation to the motion, either before the trial court or on appeal, and because the only issue raised here by Landowner's was addressed by the trial court in its opinion denying post-trial relief. 4Landowners do not dispute that they are disposing of sanitary sewage into on-site septic systems in violation of silver spring. TownShip's Ordinance No. 85-7. 5 lithe township supervisors or their agents may enter upon such property and cOl1struct such connection." The trial court specifically rel ied on the fact Section 1501.1 gives municipal authorities the power to comDel property owners to connect to a municipal sewer system. Thus, here, since Authority is seeking this remedy through the trial court's injunctive relief, equity was deemed appropriate. In Lowrev v. East Pikeland TownshiD, 562 A.2d 1010 (pa. Cmwlth. 1989), Detition .tsu.: allowance Q.1 aDoeal denied, 525 Pa. 621, 577 A.2d 892 (1990), we discussed the propriety of a municipal authority bringing an action in equity, pursuant to section 1501.1 of the Code, to compel a landowner t.o connect his prcperty to a municipal sewer system. Although the equitable action became moot, since the property owner connected his property to the sewer system after the complaint was filed, we noted that, "ralt the time.thicl action was initiated. there was DrODer equitv iurisdiction beca~ ADDellant had not vet h09ked into the sewer svstem." Lowrev, 1562 A.2d at 1012. properly As our review leads us to conclude that the action was co...ne.d in .quity, .. .fficm tho ~,. ocd.r. ~~;RI' senior Judge 6 IW, i/s- Lf3J,lf ~T~ IN THE COMMONWEALTH COURT OP PENNSYLVANIA SILVER SPRING TOWNSHIP AUTHORITY Appellants I I I I No. 271 C.D. 1996 : : : : v. D. THEODORE OPPERMAN and SUZANNA B. POTERA, o R D E R AND NOW, this 2lst day of October , 1996, the order of the Court of Common Pleas of Cumberland county dated December 27, 1995 is affirmed. CERTIFIED mm.1 T\I; liCCORI p ~111 '\' ." I. ~ r oe I 2 1 1996 ir. c) "- rl,. - c. ~B .. '" <:\j i (' :/:. ,,;s E[~ 0':; ,.,~~ \-J ..It' ,v) ",'j..;.; '1" C',) . ; '{l G.!L 1-, .ill! .,. t~. c.~ , li. c;;; :) (..I I" :3 o. v r"{,l) c->' ,',' . '-' "i~:"""., ( "...,.~..,t ~.J ,..,.,_~. I '......, , :,~"'~;:, ,I. ,- . I 'I ~ ' I' ,;, 'II . I.... , , 'II I , I , , , . , ._._""::--=.~.:..--:.::.:;:;:,;=::;.;.;._,,:.=::-~t":-'~'~::':-:~":"r="'-'=";-=-::=:'::'.~fi~_ f- In !!$;:i i~ ' In 'Jl g "'::! .... ... ~8 .... l'l o . ::t :S e~ 'M '" ~~ ... '" ",8 ~I ~ z ~ ~ ;.: "'''' 'M '" .0 ~ ~ :r. '" ~ .... H,.J ~ ~Ifi ffi '" .-< '" ~ l- H G H '" HP . S1"'~f-< = :i! !;it) ~8 ~ ~ ~ '" ~ ~ ~ ~ o .:::> t ~ ~~ '" ~ lJ: u to" 'Jl ~ . '" H g ~ "'.0 ~ll ~ 0 ~!3 c:> ~ 012' ~~ ffi 0 ~ . ,0 " CoO 0:> HUZ ~ '" H~ ~ ~' ~ (l ~ 0..,. ~ . DSHN ~ . ~iJ <: 8~f-<M e;~ .00:1 ~ ~( z u " ~< jH <I H w 5 ~ ~~ el~ $!1 "'~ z ~~ .,' ~ l./') ""' z~~~ Ul ;:;: 'D HU U' tI~ "'f. A'" ~ .-.---..-- -, -,-,.-:=:':-:":::::::';"';::-:::'- , . , ,/ , LAW OI'I'ICI8 SN&:LBAl<[R. BRlNNE:MAN 81 SPARE SILVER SPRING TOWNSHIP AUTHORITV, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSVLVANIA plaintiff VB. CIVIL ACTION - EQUITV D. THEODORE OPPERMAN and SUSANNA B. POTERA, Defendants NO. 95-4324 EQUITV TERM PLAINTIFF'S PETITION FOR ADJUDICATION OF CIVIL CONTEMPT TO THE HONORABLE EDGAR B. BAVLEY: AND NOW comes the Plaintiff, SILVER SPRING TOWNSHIP AUTHORITV, by its Attorneys, snelbaker, Brenneman & Spare, P.C., who represents as follows: 1. Plaintiff, SILVER SPRING TOWNSHIP AUTHORITY, commenced this action in equity against Defendants, on August 14, 1995. 2. After the pleadings were completed, a hearing was held, which resulted in this Court's Oecree Nisi of December 13, 1995, which directed Defendants (a) to connect their improved real estate to Plaintiff's municipal sewer system, and (b) prohibiting Defendants from utilizing on-site septic systems on said real estate, a true copy of said Oecree Nisi being attached hereto marked "Exhibit A" and incorporated herein by reference thereto. 3. Defendants sought post-trial relief which was denied by Order of this Court entered December 27, 1995, thereby making the Decree Nisi the final order, a true copy of said Order beLng attached hereto marked "Exhibit B" and incorporated herein by reference thereto. 4. Defendants appealed the Order of December 27, 1995 to the Commonwealth Court of Pennsylvania, on or about January 25, L.AW O"IC,lG SNELl:JAKEA, BRlNNEMAN 6 SPARE 1996. On February 27, 1996, this Court stayed Plaintiff's enforcement of the Order of December 27, 1995 "pending disposition of defendants' pending appeal to the Commonwealth Court of Pennsylvania", a true copy of said Order being attached hereto ml'lrked "Exhibit. C" and incorporated herein by reference thereto. 5. The Commonwealth Court aftirmed the Order of December 27, 1995 by Order entered October 21, 1996, a true copy of said Order being attached hereto marked "Exhibit D" and incorporated herein by reference thereto. 6. No stays exist against the enforcement of said Order of December 27, 1995. 7. Defendants have not connected their improved premises at 12 and 16 East Main street, New Kingstown, silver Spring Township, to the municipal sewerage system and continue to utilize the on-site septic systems at said premises, all in violation and disregard of this Court's Orders of December 13 and 27, 1995. WHEREFORE, Plaintiff respectfully requests your Honorable Court to enter a Rule upon the Defendants to show cause why they should not be held in contempt; and, after a hearing, to enter an order adjudicating Defendants in civil contempt and imposing appropriate sanctions to enforce compliance with the Orders of this Court entered on December 13 and 27, 1995. N & SPARE, P.C. Ily C. Snelbaker for Plaintiff -2- (""11111<'IIW<lIlIh III' 1'~IlI"ylvIIIIHI ('''"1111' III ('ulllh<rhulIl }ss I. Luw.r.:\lm:\l,..J;;....WJ;:l~. l'rulh"'''"lIry III Ih< ('IIUrI of ('IIIl1Ill0n I'lea, In and for ,ni.1 ('lIl1ll1Y. do herchy <~rlify Ih.1t Ihe for~HllinH IS u ,,,II. 11lI~ ullIl corr~<t <IIPY III' Ihe whol~ record of Ih< ~1I'l' thcr-:lfl !rItilh~\1. wherein till VUl:_.tipz:in~, 'l'ul>TIabJ+Ll\11 thori 1)/____ I'lalllllll. und ..__,_,......__.._ .1).L, :l'llCWure....QpIJC.DIliHl Ilnd Susllnnll B. DJ,lIJCJJJIillL..--_..__.. _._ I>cfl'ndant __._, as !he same remains or record Case No. 271 C.D. 1996 hd,". Ihe ,uid ClIlIrI '" No. q~_41J4 of ., ,. .-.._,G,.i..v.i I rerm, A.D. 19_. In T1'SlIMONY WIIEREOF. I huv~ hereunto ," IllV I"lnd "nd ulfixed Ihe ,eal of ,aid COllrt Ihi, ___EHtiL ______, day ,~t' _.. March A. D., 19..2.2.-. -'-44i<.'-V&CL t. !lLdlv...- .,j~ ,t}k~ktLJ, ;Vuaw..-. ~~l!"""nO"r) I. Hllrold E. Sheely I'r<Sldent JudHe of the Ninth Judiciallll,'ric'. composed of Ihe County of Cumherland. do certify that Lawrence E. Welker. .E..rothonntarv . hy whom the unnexed record. certilieate and allestation were mllde and given. and who. in his own proper hundwritinH. thereunto subscribed his name and affixed Ihe seal of the COUrl of Common l'lea, of ,aid County. was. at the lime of 50 doing, and now is l'rothonotary in and for said County of Cumberland in the Commonweallh of Pennsylvania. duly commissiuned und quulified to ull of whose acts a~ such full faith and eredil arc and ought to be Hiven a, well in ('Ollrt' of jlldiculure as elsewhere. and that the said record. certifieale and allestation are in due form of law und 'I'" ~ hy Ihe pr~er offia;::r. (J .. ._:: q" t _ ~\..U-y I)rc.'\idcnl.ludttl: ('ommunw~alth of Pennsylvania ('Ollllly of ('umherland Iss I. _.....LlJWI:ence E. Welker. .. I'rlllh"nolary uf Ih< COllrl of Common I'lea, in and fur the ,aid ('ounty. do <erlify Ihatth~ lIuno"'hl<_....... HaroL~! E. Sheelv hy whOl11lhe foreHoing altestntion wa, made. and wh" ha, Ih<r~lIn\O sub,,'rih<d hIS name. wa,. at the time of makinH Ih~r~"r. and still i, President JudHe of Ih. ClIlIrllIl ('''l11lllon I'lea,. Orphan' Court and Court of QlIarl~r S<ssion, of the Peace inund f"r ,aid (',,"nty. dilly l'lImlllissi"ned and qualified: to all whose acts us slIch full faith and credit ure nnd oughl tn he: ~ivcl1. as w~1I in ('nuns nl' judicalure as elsewhere. INII'SIIMONY WllERI'OI'. I have hcr~lInto '~I my hand and uffixed the seal of ,aid COllr! thi, 5.th......_.. day of Milrrh ^.IJ. 19--'1fi._ .2('~U"V}',;CA.. t. :2Jiul /UA..- _,__ .,;,. ll'fJtt(.d. )VatlJu-, J1t1. 1',,,,,,,,,,,,,,,, - I I . i:'. oJ I ~ g' .!! .:- 2: 2: Q 8 2: J j ~ III u . 8 l to- ~ ! ~ i ~ S " ~ H u C&l ti: III ;. a: .., ] p. 8 III - UI ~ u: 9 M S 0( ~ ~ ... III ~ WJ I ~ ~ ;>< .. 11\ WJ ~ C1I 1Il E oJ E H . :l ~ E 0 0 0 ~ 111 Q 1Il - 0 7- ;z u.. ~ U ~~ .!:'?' 1 - 8 9 - 10 II 12 - 17 18 - 22 23 - 44 45 - ~l 54 - 'i6 ^rnnntt the I(ccnrd~ lll1d Ithll'l'ctllngh cnrnlkd in thl.' l'mtrl of ('ull1llllln Ph.'ll!'l ill und for the cuunty ul' _._______m .___~;~~_,A~~r.I.'~.n(J.____________.__.._..____ . ill "11..' ('umrnunwl.'alth of PCIH1\yl\'UIlIU No. )'/1 C. Il. 1')% III Nil. .,,_~S.-.1JL1 ~:U\.l.lty 1'IHllL,_.._,.._... I",m. I~ .., ,-,.., " OIlIlIUIIlO" II'" 1IIIIIIwln~: nll'Y 01, _~lll~ !~I.r.!.lJ!~:9 . ..__n_'__..........,_' IIOCKFII'.NIRY HII,v~al HPRING '1'OWNSlIIP AU'1'1I0RI'\'V VB. n. '1'IIEOIXHm OPPERMAN AND SUSANNA II. (,O'l'ERA ~2 Aug. 14, 1995, Crxnpldlnl, tiled. Aug. 30, 1995. Shcriff'H Ileturn of Servke, tiled. Aug. 30. 19'}5, ('riled PC!, f II cd. Enter lilY ilppedriln"'> on behalf of the fetendilnts, Il. Thc,.doro OpfX!nllan and Susanna B. Pot.el"a, i.n the above-stated ",:tion. By: ,fohn Molnar, Esq. Oct. 16, 1995, Amiwer ill\d New Matter, filL,<l. Oct. 24, 1995, Reply to N,!w Matter, filed. Oct. 25, 26, 1995, p,.til. iOll for Preliminary fn:juflcUoll ,md Order of Court, filed. /\NO NCl'I, this 26th day of October, 1995, upon cmsider'ltion of the wit n Petition for Preliminary Injunction and on IOOtion of the Att.orneys for Petitioner-Plaintiff, it is ordered and decreed tlwt a I~ar.ing be held on said Petition on the 9th day of November, 199C> , at 3:00 o'clock p.m.. prevai ing time, in Court Roml No. II of the CUIllberland Coun' y C()JIICt. House at C.lrlisle, Pennsylvani,l, tn consider the hlflllance of appropriate preliminary injunctive relief. A certified copy of this Order and t:tle within Petit Ion "hall te aerved by certified mail (return receipt requested) ur~m the i.ll'orney of record for the Defendants. By the Court, Edgar B. Bayley, .!. Nov. 22, 1995. Opinion ill1e! Order of Court. fi led. Tn He: Petition of Plaintiff for Preliminary Injunction /\NO NCM, this 2211<1 day of November, 1995, the ,,,t it iOll of plaint iff for a preliminary in:iunction, IS DENIED. By 'II(' Court. Edgar B. Ray ley, .1. Nov. 27. 1995. Praecip" tor Listing Case for Trial, filed. By: Hic;hard C. Snelbaker, Esq. Dec. 1, 1995, Order of Court., filed. /\Nn NCl'I, this lHI c1ilY of DPcembcr, 1')9c>. IT IS OHIlI.:HEn 111A'I' an ildjudic lion in equity in the within case shall be held in Courtnx.n Nlullbcr I, ilt. 8:4'; a.11\., Wedl1<!!Iday. 111.'c'Cfllbcr U, 199';. By the Court, Fdgar B. Bayley, .f. Dec. 13. 1995. Opin Ion dncl Decree Nisi. filed. /\ND N<J.oI, this lllh clay of Decemher, 1995, IT n; OlmEHI.;D, ^D.IUlX;[.:n fIND DECREED: ( 1) n. The(xlnre OPlx!nlliln and Susanna n. Poterd, n....T1ers of 1) and 16 F.ast Main Street, New KlnqHloWl1, Silver Spri.n'l Township. (I) SHALL ..onnect t the Silver Sprinq TownHhip "~lI1icipal sewer system, ml<l ()) they dl'e PIl<lIlBl D fra1l cont inuin,! to ut.ll i ze t.he on-site sept ic systemall ho[;(> properl les. (OVel') 5J