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CEIlTH'ICATE AND TIlANSMI1'1'AI. O~. IlECOIlD
UNDEIl
PENNSYLVANIA IlULE OF APPELLATE PIlOCEDUIlE 1931 (cJ
To the Prothonotary of the Appellate Court to which the
within matter has been appealed:
COMMONWEALTH COURT OF PENNSYLVANIA
THE UNDERSIGNED, Prothonotary of the Court of Common Pleas
of CUMBERLAND County, the said court being a court of record,
do hereby certify that annexed hereto is a true and correct copy
of the whole and entire record, including an opinion of the court
as required by PA Il.A.P. 1925, the original papers and exhibits,
if any on file, the transcript of the proceedings, if any, and the
docket entries in the following matter:
No. 96-514 Civil Term: No. 2580 C.D. 1996
Board of Supervisors of South Middleton Township
Cumberland County. Pennsylvania
vs.
Raymond E. Diehl, Genevieve A. Diehl. Donald E. Diehl.
Suzanne Diehl. Harold Otto and Sara Jane Otto
The documents compr1s1ng the record have been numbered
from No. 1 to No. Ill. and attached hereto as Exhibit A is a
list of the documents correspondingly numbered and identified with
reasonable definiteness, including with respect to each document,
the number of pages comprising the document.
The date on which the record has been transmitted to the
appellate court is November 22. 1996
(Seal of Court)
,;(~'U1*- ~V~
Prothonotary
An additional copy of this certificate is enclosed. Please
sign and date copy. thereby acknowledging receipt of this record.
RECORD RECEIVED:
Date:
.um.w; 11113 d
~O 110111100
1~~~?NJ:~I.I303\1
1I1'ot\ignature " title)
96. ~d 811 E J
.
.
Commonwealth of I'ennsylvania
County of Cumberland
} ss:
No. 2580 C. D. 1996
I, Lawrence E. Welker , 1'lOthonotary
of the Court of Common Pleas in and for said
County, do hereby eerlify Ibat Ihe foregoing is a
full, Irue and correct copy ofthe whole record ofthe
ease therdn stated. wherein
Board of Sure>:"lisors of South
Middleton Townshio. Cumberland Co.
Plaintiff, and RaVlmnd E:. and ('",enevteve A.
1
HArnlri Ottn Ann ~ArA J~np Ottn
Defendant _, as tbi: same remains of record
before Ihe said Courl at Nn. 96-514 of
Civil. Term. A.D. 19_.
have hereunto sel my hand and affixed Ibe seal of said Court
day of November A. 0.. 19~.
,~~t.
In TESTIMONY WHEREOF, I
this Twenty-second
/Y~b;l4-
/
Jlwlh,m'llary
I, Harold E. Sheely President Judge of the Ninth
Judicial Dislriet, composed of the COUnl)' of Cumberland, do certify thai Lawrence E. Welker.
Prothonotarv . by whom Ibe annexed record, certilieate and
allestalion were made and given, and who. in his own proper bandwriting, tbereunto subscribed bis name
and affixed the seal oft be Courl of Common Pleas of said Counly, was, atlbe time oho doing. and now is
Protbonotary in and for said County of Cumberl and in
tbe Commonwealth of Pennsyll'ania. duly commissioned and qualified 10 all ofwbose acts as such full faith
and credil are and oughlto be gh'en as well in Courls of jUd. iealure as elsewbere, and~b IIhe said ro:cord,
cerlifieate and allestation are in due form of law and a e by Ibe proper office
. r; .//'1.e //
'In:\idt'nl .Iud~c
Commonwealth of Pennsylvania
County of Cumberland
} ss:
I, Lawrence E. Wel ker . Prothonotary of the Court of Common Pleas in
and for the said County, do certify thallhe Ilonomble Harold E. Sheelv
by whom the foregoing aUeslalion was made, and who bas thereunlosubseribed his name, was, a\the time
of making thereof, and still is I'residenl.ludge oflhe Courl of Common Pleas, Orphan' Courl and Courl of
Quarter Sessions of Ihe Peace in and for said Counly, duly Commissioned and qualified; to all whose acts
as such full failh and credit are and oughl 10 be gil'en. as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF. I h'l\e hercunlll
scl my hand and affixed the seal of said Courl Ihis
~ day of Novemher A,(), 19~.
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Amnng the I{ccoul" a 1111 I)rncccding\ enrolled in the court of Common Plcn~ in and for the
10 No.
Cumberlilnd
No. 2580 C.D. 1996
96-0;14 Civil
in the Commonwealth nf I'cnn,yl\'unia
county of
Term. 19
is contllined Ihe following:
COI'Y OF
^ppeilrance
DOCKET ENTRY
BOARD OF SUPERVISORS Of' SOUTH MIDDLETON TOWNSHIP.
PAGE m.
1 - 12
13 - 15
16 - 21
22 - 41
42 - 43
44 - 49
50 - 52
53 - 60
61 - 63
64 - 68
69 - III
.
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Among the Records nnd I'roceedings enrtllled in the etlUrI of Conunnn l'lells in nnd fur Ihe
county of
Cumberland
No. 2580 C.D. 1996
QIi-'i14 C'ivil
is enntllined thc fnllnwing:
in Ihe Cnmmnnwelllth nf I'ennsylvllniu
In No,
Tenn, 19
COl'Y OF
Appearance
DOCKET ENTRY
BOARD OF SUPERVISORS OF SOUTII MIDDLETON TOWNSIIIP.
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
RAYMOND E. DIEIIL. GENEVIEVE A. DIEIIL, DONALD E. DIEIIL,
SUZANNE DIEIIL, IIAROLD OTTO AND SARA JANE OTTO
Jan. 30, 1996. Complaint, filed.
Feb. 8, 1996. Praecipe, filed.
Enter the appearance of MARTSON, DEARDORFF, WILLIAMS &. m-ro in behalf
of the Defendants in the above matter.
By: Ivo V. Otto, III, Esq.
Feb. 20. 1996. Defendants' Prelllninary Objections to Plaintiff's Complaint,
filed.
March 8. 1996, Plaintiff's Answer to the Preliminary Objections of the
Defendants, filed.
April 17. 1996, Praecipe for Listing Case for Argument, filed.
By: Richard P. Mislitsky, Esq.
May 17. 1996. Petition to Strike Case fran Argument Court, and Order of
Court. filed.
AND NOW, this 17th day of May, 1996, the within case is stricken fran
the Argument Court list of May 29, 1996.
By the Court, Harold E. Sheely, P.J.
July 1. 1996. Praecipe for Listing Case for Argument, filed.
By: Richard P. Mislitsky, Esq.
Sept. 12. 1996. Opinion and Order of Court, filed. In Re: Defendant's
Preliminary Objections to Plaintiff's Complaint for Declaratory Judgment.
AND NOW, this 12th day of September, 1996, after careful consideration
of defendants' Prelllninary Objections to plaintiff's Complaint for Declarato
Judgment, and pursuant to the attached opinion. the Court will SUSTAIN
defendants' objection in the nature of a demurrer. ACCOrdingly, the Court
will not address the other grounds for objections. Plainitff's complaint
is DISMISSED with prejudice.
By the Court, Harold E. Sheely. P.J.
Sept. 23, 1996. Notice of Appeal, filed.
Notice is hereby given that the Board of Supervisors of South Middleton
Township, Cumberland County, Pennsylvania, Plaintiff above-named, hereby
appeals to the Commonwealth Court of Pennsylvania, fran the Order entered
in this matter on the 12th day of September, 1996. This Order has been
entered in the docket as evidenced by the attached copy of the docket entry.
By: Richard P. Mislitsky, Esq.
Sept. 30. 1996. Oommonwealth Court of Pennsylvania Notice of Docketing Appea
to No. 2580 C.D. 1996, filed.
Briefs (3)
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96- ~'I'I C4..;t "/L---
v.
RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL, DONALD
E. DIEHL, SUZANNE DIEHL,
HAROLD OTTO and SARA JANE
OT'l'O,
CIVIL ACTION: DECLARATORY
JUDGMENT
Defendants
NOTICE
You have been sued in court. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are
served, by entering a written appearance personally or by
attorney and filing in writing with the court your defenses or
objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the court without further
notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may lose mone}'
~r ~roperty or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Cae '"lR:i ~:;~4 wk _
Richard P. Mlslitsky, ~ire
Attorney for Plaintiff
SAIDIS, GUIDO, SHUFF Ex MASr.AND
26 West High Street
Carlisle, PA 17013
(717) 243-6222
I
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-
v.
RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL, DONALD
E. DIEHL, SUZANNE DIEHL,
HAROLD OTTO and SARA JANE
OTTO,
CIVIL ACTION: DECLARATORY
JUDGMENT
Defendants
COMPLAINT
Plaintiff brings this action pursuant to the Declaratory
Judgment Act (42 Pa, C.S.A. 57531 et seq.) and Pa, R.C.P. 1601
and in support thereof avers as follows:
(1) Plaintiff is the Board of Supervisors of South
Middleton Township, the governing body of South Middleton
Township, a Township of the second class, located in Cumberland
County, Pennsylvania. Its offices are at 520 Park Drive, Boiling
Springs, Pennsylvania 17007.
(2) The Defendants and other parties in interest are:
(a) Raymond E. Diehl and Genevieve A. Diehl, his
SAID IS, GUIDO,
SHUFF &
MASLAND
26 W. Hiah 5"",,'
Carlisle. PA
wife, who reside at 315 Myers Road, Carlisle, Cumberland
County, Pennsylvania,
(b) Donald E. Diehl and Suzanne Diehl, his wife, who
reside at 110 W. Springville Road, Boiling Springa,
Cumberland County, Pennsylvania. Donald E. Diehl is the son
of Raymond E. Diehl and Genevieve A. Diehl.
2
.
.
.
(C) Harold Otto and Sara Jane Otto, his wife, who
reside at 12 South Ridge Road,
Pennsylvania.
(3) At all relevant times prior to December 18, 1995,
Boiling Springs,
Harold Otto and Sara Jane Otto were the legal title owners of a
tract of land situate in South Middleton Township, Cumberland
County, Pennsylvania, containing approximately 58.924 acres and
appearing as Lot No. 1 on the Subdivision Plan for Yorkfie1d
(hereinafter "Yorkfie1d I"). Said Subdivision Plan was approved
by Plaintiff on October 21, 1983 and is recorded in Cumberland
County Plan Book 44, Page 146.
(4) Lots number 2-8 on "Yorkfield I" have been sold and
developed in accordance with the Plan as recorded.
(5) It is bel ieved and therefore averred that at all
relevant times prior to December 18, 1995, Donald E. Diehl had
equitable title to the aforementioned Lot No.1.
(6) On February 18,
1988,
Plaintiff approved the
Preliminary Plan submitted by Donald E. Diehl for the subdivision
of said Lot No.1.
Final Plan approval was given by the
Plaintiff on July 21, 1988.
Said Plan(s) were also titled
"Yorkfield" but will hereinafter be referred to as "Yorkfield II"
SAIDIS, GUIDO,
SHUFF &
MAS LAND
26 W, High 51=1
Carlisle,PA
for purposes of clarity.
(7) "Yorkfield II" was recorded by or on behalf of Donald
E. Diehl on July 26, 1988 in Cumberland Coullty Plan Book 55, Page
146.
3
.
"
,
(8) "Yorkfield II" subdivided the residual area (Lot No.1)
of "Yorkfield I" into 18 individual residential building lots
numbered 1 and 9 thru 25,
(9) Prior to December 29, 1995, no lots had been conveyed
from "Yorkfield II" nor had any "substantial improvements" been
made on the site.
(10) Subsequent to the approval of "Yorkfield II" in July of
1988, there have been several changes and/or amendments in the
zoning, subdivision and/or other ordinances of South Middleton
Township with which "Yorkfield II" does not comply.
(11) Pursuant to Section 508(4)(ii) of the Municipalities
Planning Code [53 P.S, SI0508(4)(ii)] any such changes and/or
SAlOIS, GUIDO,
SHUFF &
MASLAND
26 w. High 5'"",
Carlisle. PA
amendments could not adversely affect Donald E, Diehl's right to
commence and complete any aspect of the approved development for
a period of 5 years from the date of preliminary approval.
(12) In late 1992, Donald E, Diehl, through his attorney,
inquired as to the Plaintiff's interpretation of the aforesaid
Section 508 of the Municipalities Planning code.
(13) In December 1992, Plaintiff advised Donald E, Diehl,
through his attorney, that if "Yorkfield II" was not developed
within the 5 year period it may have to be resubmitted for
approval to insure compliance with the then existing requirements
of the applicable ordinances. Attached hereto and marked Exhibit
"A" are copies of correspondence to counsel.
(14) No action has ever been taken to resubmit said
Subdivision Plan to Plaintiff,
.. .
.
.
(15) In late 1995, Donald E. Diehl made informal requests to
Plaintiff's Sewage Enforcement Officer for sewage permits in
connection with "Yorkfield II".
(16) By letter dated December 4, 1995, Plaintiff advised
Donald E. Diehl that it would not issue any sewage permits (or
permits of any kind) for "Yorkfie1d II" unless the plan was
resubmitted to Plaintiff to insure its compliance with the
existing ordinances. Said letter is attached hereto and marked
(17) On December 8, 1995, Donald E. Diehl, Suzanne Diehl,
Raymond E. Diehl and Genevieve A. Diehl were parties to various
Deeds conveying title to the individual lots in "Yorkfie1d II"
Exhibit "B".
between and among themselves.
The 17 individual Deeds are
recorded in Cumberland County Deed Book 133, Pages 408 thru 441,
inclusive.
(18) On December 18, 1995, Harold Otto and Sara Jane Otto
executed a single Deed to Raymond E. Diehl and Donald E. Diehl
for Lot number 1, and Lots 9 thru 25 inclusive of the "Yorkfield
II" Subdivision. Said Deed is recorded in Cumberland County Deed
Book 133, Page 401.
(19) All of the Deeds mentioned in paragraphs 17 and 18
above were recorded in the Office of the Recorder of Deeds for
SAID IS, GUIDO,
SHUFF &
MASLAND
26 W, Iligh SIr'Ce'
Carlisle. PA
Cumberland County, Pennsylvania, on December 29, 1995 between
1:33 p.m. and 1:47 p.m.
(20) All of the above conveyances were made in violation of
the Subdivision and Land Development Ordinance of South Middleton
Township, Cumberland County, Pennsylvania (Ordinance No. 12 of
5-
,
.
,..
,.
1990, as amended) and the Pennsylvania Municipalities Planning
Code (53 P.S. 510501 et seq).
(21) All of the aforesaid conveyances set forth in
paragraphs 17 and 18 were made AFTER Defendants were specifically
advised and had actual notice that the Yorkfield II Subdivision
approval had expired and that Plaintiff had rescinded Subdivision
approval.
(22) This action is brought to avoid the necessity for
litigation and to obtain an adjudication of the rights of the
parties.
WHEREFORE, Plaintiff respectfully requests this Honorable
Court to take jurisdiction of this controversy and that after
hearing and adjudication it enter an Order of Declaratory
Judgment as follows:
(a) Declaring that the Deeds referred to in Paragraphs
17 and 18 of the Complaint are null and void and striking
them from the records of the Recorder of Deeds in and for
Cumberland County; and/or
(b) Ordering that no conveyance of individual lots may
be made from the said "Yorkfield II" plan until said Plan
SAIDIS, GUIDO,
SHUFF &
MAS LAND
26 w. Hlah Sln:cl
Carlisle. PA
has been resubmitted to Plaintiff to insure compliance with
its existing ordinances; and/or
(C) Declaring that the "Yorkfield II" Subdivision is
subject to the existing zoning, subdivision and/or other
ordinances of South Middleton Township; and/or
c,
"
--
(d) Ordering such other relief liS this Honorllble Court
deems llpproprillte.
dllted:
Respectuflly submitted,
, / GU IDO, SHUFF & M~LAND
c/tMJ. . /s;ft,"f;)
Richllrd P. Mislitsky, Esqu e
Attorney 1.0. #28123
26 West High Street
Cllrlisle, PA 17013
(717) 243-6222
SAlOIS, GUIDO,
SHUFF &
MASLAND
26 W, "Ish Street
eMu.I.. PA
'.
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P,02
. ' 'JAN-25-96 THU \ 6: 32
//
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SMT
FAX tlO. 258357"-'
I
,
EDWARD W, HARKER
ATTORNev AT V.W
PHONE 2'J,'0~
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DAILY 8:30 . ':30
I!VENING HOURS
BY APPOINTMENT
'ARMERS TRUST BUILDING
ONE WEST HIGH STREeT
CARLISLIi. PENNA. 110l)
December 9, 1992
Ivo V. Otto, III, Esquire
MARTSON, DEARDORFF, WILLI~~S & OTTO
Ten East High Street
Carlisle. PA 17013
RE: York field/Diehl
Dear Ivo;
.......
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It was more than helpful for Roger to proviJe yuu with copies
of my correspondence to him. Had I known you were directly
involved in the matter, I would certainly have provided you with
one myself.
You are correct that my comments were based on the assumption
that Yorkf~eld was a preliminary plan and that is how I read Mr.
Morgenthal's initial letter to me. Still, since I was not familiar
with the facts, I made my response sufficientlY general to allow
for flexibility based on further study once the matter was formally
presented to the Board of Supervisors.
At this point, I have yet to undertake a comprehensive study
of the matter and can only say that the mere fact that Mr. Diehl's
plan was finally approved doss not in and of itself alter my initial
opinion. You are absolutely correct that MPC Section 50e refers to
substantial completion. Unfortunately, that Section is silent as
to what happens when there are no required improvements. Further,
I have yet to find any Appellate Court authority on the matter,
Based on the foregoing, I am reluctant to anticipate what if
any action the Board of supervisors might take given the
circumstances in this matter. In any case. I would not render an
advisory opinion unless I was asked to do so by the soard and given
an opportunity to fully review the facts. Therefore, as a
precautionary measure, I must assume that the Board will retain
a generally strict view on the subject of the 5-year protection
period. Thank you.
?)
...ry
--
Edward W. Harker
EWH;mb
EXHIBIT "A"
co: South Middleton Township, Boa~d of Supervisors
~
.
--
EDWARD W. HARKER
ATTORNEY AT LAW
PHONE 2.3-1083
!of I: FI ~"2./) bE'/'
(J IOJn..:tl: 1t8 ~ I:;J
:"1Fr ~ ~EC'D. .
~
December 1, 1992
FARMERS TRUST BUILDING
ONE WEST HIGH STREET
CARLISLE, PENNA, 17013
Roger M. Morgenthal, Esquire
FLOWER KRAMER MORGENTHAL & FLOWER
11 East High Street
Carlisle, PA 17013
OAIL Y 8:30 . .:30
EVENING HOURS
BY APPOINTMENT
RE: Donald Diehl - Yorkfield Development
Dear Roger:
On September 16, 1992, you inquired as to my interpretation
of MPC Section 508 as it relates to the above Preliminary Plan.
This matter WQS taker. u..der &dviseme..t pending action on other
plans as well as my own desire to gain insight into the Developers'
intentions. I note that Mr. Diehl has not put this question on the
agenda or discussed it formally with the Supervisors to date.
The Supervisors have insisted on strict compliance with time
deadlines, the intention being that older plans are considered
abandoned necessitating resubmittal and reapproval under the
provisions of later Ordinances. Unless the Board adopts a more
liberal attitude toward development, it is my belief that the
Yorkfield preliminary approval expires at the end of the 5-year
protection period established by MPC Section 508 and Section 303
of the Subdivision and Land Development Ordinance, adopted February
3, 1983. (Commonly known as the "Old Ordinance"). Consideration
must also be given to conditions of approval and potential revisions
which may be required in the final plan. Either of these factors
might necessitate resubmittal independently.
During my tenure as Solicitor, I have made Developers tow the
line by maintaining a strict and conservative approach to the
interpretation and application of pertinent regulations. This fact
is generally acknowledged and I take considerable satisfaction from
the knowledge that certain Developers and thp.ir alJ.ies favor a change
in the Solicitor's position. Bearing this in mind, it is conceivable
that Developers like Mr. Diehl would fare better by delaying
submissions until such time as the Board of Supervisors acts on its
selection of Solicitor for the upcoming year.
Sincerely,
~c.."""\ d W. \-\Q.'v"-'U.'0
'1"'1"e>
Edward W. Harker
EWH:mb
cc: Rex D. Manweiler
Mary Lehman
James Baker
H.E. Mortimore
Terry Rickert
EXHIBIT "A"
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35>outJ) '-ibbl.tton ~otnn~bip
520 Park Drive, Boiling Springs, P A 17007
PHONE: (717) 258-5324 FAX: (717) 258-3577
"
December 4, 1995
Certified Mall # Z 100 478732
Donald Diehl
322 S, Hanover Street
Carlisle, PA 17013
Dear Mr, Diehl:
RE: Yorkfield plan #88-12
It was recently brought to the Township's attention that "informal" requests for
sewage permits have been made. I use the word "informal" since the Township has been
advised that no applications have been filed,
- This matter was discussed at the Board of Supervisors meeting held on November
30, 1995, I was directed to advise you that pursuant to the applicable provisions of the
Municipalities Planning Code, no permits of any kind will be issued for the above
referenced subdivision. The above referenced subdivision plan has been become void by
operation of law, Please refer to Section 508 of the Municipalities Planning Code. By
correspondence dated December 1, 1992 and December 9, 1992, the Township's former
Solicitor, Edward Harker, Esquire, advised counsel of his Interpretation of the applicable
law, The Board of Supervisors agrees with Mr. Harker's interpretation, I, too, concur with
his statements,
Based upon the above, it is the Board's opinion that the Yorkfield subdivision
became null and void in February 1993, Any further action will require resubmission of a
subdivision plan which, of course, would be subject to all changes in..the Township's
ordinances, I am directing the Township to return any security money (with interest) that
might be held,
If you disagree with the Board's position, I am confident that the Board would be
willing to hear any facts or arguments which you present. Kindly advise the Township staff
of your intentions,
Finally, please do not consider this correspondence a denial of sewage permits.
Since no applications for sewage permits have been filed, the Township does not believe
action was required on the Information submitted,
Res~ectfully, /J '.
"tftdlll.u" t: 1~
Richard p, Mislitsky CJI1u.0
Township Solicitor
cc: Board of Supervisors
Bud Grove
Tim Duerr
Vlnce Elbel
plan file #88-12
Correspondence
EXHIBIT "B"
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
NO. 96-514 CIVIL TERM
RAYMOND E. DIEHL.
GENEVIEVE A, DIEHL. DONALD E.
DIEHL, SUZANNE DIEHL,
HAROLD OTTO and SARA JANE OTTO, :
Defendants
DECLARATORY JUDGMENT ACTION
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Enter the appearance of MARTS ON, DEARDORFF. WILLIAMS & OTTO in behalf of the
Defendants in the above matter.
MARTSON, DEARDORFF. WILLIAMS & OTTO
By ~ r---
Ivo V. Otto III, Esquire
Ten East High Street
Carlisle. PA 17013
(717) 243-334 I
Attorneys for Defendants
Raymond E. Diehl, Genevieve A. Diehl,
Donald E. Diehl, Suzanne Diehl, Harold Otto
and Sara Jane Otto
Dllted: February 8. 1996
~
,....
. '
IV
CERTIFICATE OF SERVICE
I hereby certifY that a copy of the foregoing Praecipe was served this date by depositing same
in the Post Office at Carlisle, P A. first class mail. postage prepaid. addressed as follows:
Richard P. Mislitsky. Esquire
SAlOIS. GUIDO. SHUFF & MASLAND
26 West High Street
P.O, Box 560
Carlisle, PA 17013
MARTS ON, DEARDORFF. WILLIAMS & OlTO
~
By
Ivo V. Otto III, Esquire
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Defendants
Dated: February 8, 1996
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BOARD OF SUPERVISORS OF SOUTH
MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 96-514 CIVIL TERM
RAYMOND E. DIEHL. GENEVIEVE A,
DIEHL. DONALD E. DIEHL, SUZANNE
DIEHL, HAROLD OTTO and SARA
JANE OTTO,
Defendants
IN DECLARATORY JUDGMENT
DEFENTlANTS' PREI.IMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
TO: BOARD OF SUPERVISORS OF SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY. PENNSYL VANIA, Plaintiff, and their attorney,
RICHARD P. MISLlTSKY. ESQUIRE
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE
HEREOF OR A JUDGMENT MAYBE ENTERED AGAINST YOU.
AND NOW, comes the Defendants, Raymond E. Diehl, Genevieve A. Diehl, Donald E.
Diehl, Suzanne Diehl, Harold Otto and Sara Jane OUo, by and through their counsel, MARTSON.
DEARDORFF, WILLIAMS & OTTO. and their co-counsel, LANDIS. BLACK & SCHORPP, and
hereby object to Plaintiff's Complaint as follows:
I. MOTION TO STRIKE -FAII.URE TO CONFORM TO Pa, R C.P, 1019
I. Pennsylvania Rule of Civil Procedure 1019 requires plaintiffs to plead material facts
on which their complaint or cause of action is based.
2. In Paragraph 9 of Plaintiff's Complaint, Plaintiff alleges, illfer alia, that no
"substantial improvements" have been made on the site.
3. Paragraph 9 fails to specifY what is meant by "substantial improvements" and
therefore fails to allege material facts on which the complaint is based nor does it allege facts with
such specificity so as to enable Defendants to answer and prepare a proper defense.
r
I
I,
I.
!
I
!
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.
..
..
4. In Paragaph 10 ofPlaintilrs Complaint, Plaintiff alleges, illler alia. "there have been
several changes and/or amendments in the zoning. subdivision and/or other ordinances of South
Middleton Township with which Yorkfield II does not comply."
5. Paragraph 10 is vague and fails to specity what changes or amendments to either
zoning, subdivision, or other ordinances of South Middleton Township that Yorkfield II does not
comply with and. therefore, does not allege material facts upon which Plaintilrs claim is based nor
does it allege facts with sufficient specificity so as to enable Defendants to answer and prepare a
proper defense.
6. In Paragraph 20 ofPlaintilrs Complaint, Plaintiff alleges that certain "conveyances
were made in violation of the Subdivision and Land Development Ordinance of South Middleton
Township, Cumberland County, Pennsylvania (Ordinance No, 12 of 1990. as amended) and the
Pennsylvania Municipalities Planning Code (53 P.S. ~ 10501 et seq)."
7, Paragraph 20 is vague and fails to specity or identity what sections of either the
Subdivision and Land Development Ordinance or of the Pennsylvania Municipality Planning Code
these conveyances were in violation of and, therefore. fails to allege material facts in support of
Plaintilrs action and also fails to allege facts with sufficient specificity so as to enable Defendants
to answer and prepare a proper defense,
8. In Paragraph 21 of Plaintilrs Complaint. Plaintiff inferentially alleges that the
Y orldield II subdivision expired or was rescinded.
9. Paragraph 21 is vague and fails to set forth how. when, and/or under what authority
said plan expired or was rescinded and therefore does not allege material facts in support of
Plaintilrs action, nor does it allege facts with the sufficient specificity so as Defendants may prepare
a proper answer or defense.
10. Pennsylvania Rule of Civil Procedure 1028(a)(2) provides that a defendant may
object to a pleading because of lack ofconfonning to a Rule of Court.
II. Paragraphs 9, 10, 20, and 21 of Plaintilrs Complaint fail to confonn to the
Pennsylvania Rules of Civil Procedure which require plaintiffs to set forth the material facts upon
which their action based and must, therefore, be stricken from the Complaint.
17
--
~
WHEREFORE. Defendants, Raymond E. Diehl, Genevieve A. Diehl. Donald E. Diehl.
Suzanne Diehl, Harold Otto and Sara Jane Otto, respectfully that Paragraphs 9, 10. and 20 be
stricken from Plaintilrs Complaint.
1\. MOTION FOR MORE SPECIFIC PI.EADrNG
12. Defendants hereby incorporate by reference thereto paragraphs 1 through 11 of
Defendants' Preliminary Objections,
13. Pennsylvania Rule of Civil Procedures 1028(a)(3) provides that a defendant may
object to a pleading because of insufficient specificity.
14. Paragraphs 9, 10.20, and 21 of Plaintilrs Complaint are vague and do not state
specific material facts sufficiently to allow Defendants to answer or prepare a defense and Plaintiff
should be required to file a more specific pleading.
WHEREFORE, Defendants, Raymond E. Diehl, Genevieve A. Diehl, Donald E. Diehl,
SuzaMe Diehl, Harold Otto and Sara Jane Otto. respectfully request that the Plaintiff be directed
to more specifically plead the avennents of Paragraphs 9, 10,20, and 21 of their Complaint.
1\1. DEMl JRRER
15. Defendants hereby incorporate by reference thereto paragraphs 1 through 14 of
Defendants' Preliminary Objections,
16. In Paragraph 15 of the Complaint Plaintiff alleges that Defendant Donald E. Diehl
made a request for a sewer pennit in connection with "Yorkfield n".
17, In Paragraph 16 of the Complaint, Plaintiff alleges that Defendant Donald E. Diehl
was advised that no sewer pennits would be issued for "Y orkfield 1\".
18. No Defendant has appealed or challenged Plaintilr s denial of such pennit nor has
any Defendant threatened such action or litigation. nor has such been alleged.
19. Plaintiff has not established that an actual controversy exists, is imminent or
inevitable, within the meaning of the Declaratory Judgment to Act.
20. The legislature has vested exclusive jurisdiction regarding review of the granting or
denying ofpennits in the Township Zoning Hearing Board, 53 P.S. ~ I 0909.1 (a)(3). Therefore, this
Court lacks jurisdiction.
I~
~
,.,.
21. In Paragraphs 6 and 7 of the Complaint Plaintiff concedes that the "Y orkfield II"
subdivision plan was both approved and recorded in July of 1988.
22. Plaintiffs' allegation in Paragraph 21 of its Complaint that the "Yorkfield II"
subdivision expired and was rescinded is without legal basis and is contrary to Pennsylvania law.
23. Plaintiff's Complaint does not set forth a claim or cause of action of which, if proved,
would entitled Plaintiff to the relief sought.
WHEREFORE, Defendants. Raymond E. Diehl, Genevieve A, Diehl, Donald E. Diehl,
Suzanne Diehl, Harold Otto and Sara Jane Otto, respectfully request that this Court dismiss
Plaintiff's Complaint.
MARTSON, DEARDORFF, WILLIAMS & OTTO
BY~
Ivo V. Otto, III. Esquire
W. Darren Powell, Esquire
Ten East High Street
Carlisle. PA 17013-3093
(717) 243-3341
Counsel for Defendants
LANDIS, BLACK & SCHORPP
B~~~
Edward L. Schorpp, Esquire
36 South Hanover Street
Carlisle, PA 17013
(717) 243-3727
Co-Counsel for Defendants
Date: February 20, 1996
i1
~
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CERTIFICATE OF SERVICE
I hereby certifY that a copy of the foregoing Defendants' Preliminary Objections to Plaintiffs
Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail,
postage prepaid, addressed as follows:
Richard P. Mislitsky, Esquire
SAlOIS, GUIDO, SHUFF & MAS LAND
26 West High Street
P.O. Box 560
Carlisle. PA 17013
MAR SON, DEARDORFF, WILLIAMS & 0170
By
Ivo V. Otto, III, Esquire
W, Darren Powell, Esquire
Ten East High Street
Carlisle. PA 17013
(717) 243-3341
Attorneys for Defendants
Dated: February 20. 1996
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-514 CIVIL TERM
v.
RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL, DONALD
E. DIEHL, SUZANNE DIEHL,
HAROLD OTTO and SARA JANE
OTTO,
CIVIL ACTION: DECLARATORY
JUDGMENT
Defendants
PLAINTIFF'S ANSWER TO THE PRELIMINARY OBJECTIONS
OF THE DEFENDANTS
AND NOW, comes the Plaintiff, the Board of Supervisors of
South Middleton Township, by and through their Solicitor Richard
P. Mislitsky, Esquire, and responds to Defendants' Preliminary
Objections and in support thereof avers as follows:
~ MOTION TO STRIKE
1. Defendants allege in Paragraphs 2 and 3 of their
Preliminary Objections that they cannot answer or defend this
action because they do not understand references in Paragraph 9
of the Complaint indicating that prior to December 29, 1995, no
lots of Yorkfield II had been conveyed, and no substantial
improvement had been made on the site.
The Defendants'
SAlDlS, GUIDO.
SHUFF &
MASLAND
26 W, Hilh S"",,,
CatIi.I., PA
contentions are without substance.
Plaintiff responds as
follows:
(a) "Improvement" in the context of a land development
dispute such as the instant matter has a well understood
meaning well known to the Defendants and defense counsel.
I.
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.
Attached hereto and marked as Exhibit "A" is a letter from
Defendants dated December 4, 1992. Said correspondence not
only makes reference to the very basis of this litigation,
but also evidences an understanding of the terminology in
Plaintiff's Complaint now being criticized by the
Defendants.
(b) As developers of, and applicants in Yorkfield II as
well as the equitable owners of the subj ect premises,
Defendants are in the best position to know what, if any,
improvements have been made to the subdivision site.
Accordingly, Plaintiff's contention that no improvements
have been made to this site is within the knowledge of the
Defendants and Defendants cannot seriously contend that they
are prevented from answering Plaintiff's Complaint. In
fact, it is respectfully submitted that Defendants'
Preliminary Objections are entirely frivolous; and
(C) Defendants demand for an explanation of Plaintiff's
averment that no substantial improvements have been made to
the site is illogical in that Defendants are, in essence,
asking the Plaintiffs to establish a negative, that is, to
set forth an explanation to something that the Plaintiffs
have averred not to exist.
SAIDIS, GUIDO,
SHUFF &
MAS LAND
26 w, Hlab Slt<el
CalII.le, PA
2. Defendants' next cry is that they cannot answer the
complaint or prepare a defense because the Plaintiff does not set
forth each and every specific amendment to the Township
Ordinallces .....hich Yorkfield II fails to comply. The Plaintiff
avers that such specifics are Ilot required by law or under the
~3
(
SAlDIS, GUIDO,
SHUFF &
MASLAND
26 W. lIilh SIne!
Carli lie, PA
..
~
.
facts of this case. Plaintiff responds as follows:
(a) The crux of this Declaratory Judgment Action is that
the Yorkfield II Subdivision approval is null and void by
operation of law. Specifically, Section 508(4)(ii) of the
MPC, Supra (please see paragraph 11 of Plaintiff's
Complaint), therefore, in order to proceed on any aspect of
the proposed subdivision, the Defendants must resubmit a
Subdivision Plan which must comply with any applicable
changes in Township Ordinances.
Defendants' demand for
delineation of each and every amended provision in both
Ordinances must be considered in conjunction with the basis
for this litigation, as summarized above. IF BY APPLICATION
OF SECTION 508(4(ii) THE INSTANT SUBDIVISION HAS BECOME NULL
AND VOID, A SUBDIVISION PLAN MUST BE RESUBMITTED FOR
APPROVAL/DISAPPROVAL BY THE TOWNSHIP GOVERNING BODY, EVEN IF
THERE IS ONLY ONE AREA OF NONCOMPLIANCE WITH THE AMENDED
ORDINANCES. Therefore, the recitation of each and every
provision and the applicable state and municipal laws is
unnecessary and burdensome.
Defendants' Preliminary
Objections are again seem to be frivolous;
(b) The frivolity of Defendants' assertion is illustrated
in correspondence from the Defendants. The Plaintiff points
this Honorable Court to correspondence previously identified
and marked as Exhibit" A" hereof.
In addition, attached
hereto and marked Exhibit "B" is correspondence from defense
counsel dated January 19, 1993. In or around December 1992,
Defendants requested an informal "ruling" on the affect of
-- ~
, .
Section 508 (4) (ii) on Yorkfield II. Subsequent to the
aforesaid request for a ruling, the Plaintiff asked the
Defendants to delineate the specific nonconformities which
the Defendants found so objectionable as to preclude
resubmission of the Subdivision Plans.
In response, the
Defendants advised the Plaintiff by letter dated January 19,
1993 of the following:
".. .since this Plan (Yorkfield) was approved, the South
Middleton Township Zoning Ordinance has changed in
several respects, principally that the lots sizes in
the District in question as well as minimum road
frontage requirements have increased.
".. .Without going into great detail or commissioning an
engineering study...we feel it quite safe to say that
the number of lots...would...be reduced as a result of
both the increase in the road frontage (and) the
minimum lot area."
Accordingly, Defendants are obviously aware of at least two
aspects of the subdivision which do not comply with
subsequent changes in the Township Ordinances.
(C) With the above quotation in mind, Defendants cannot
seriously contend that they are prevented from preparing a
defense because Plaintiff I s Complaint does not delineate
specific provisions of the amended Ordinances. The
determinative issue in the instant dispute is the affect of
Section 508(4)(ii) of the MPC on the unfinished subdivision.
If this section does not insulate the Defendants from
SAlOIS, GUIDO,
SHUFF &
MASLAND
26 W. High Street
Carlisle, PA
changes in Municipal Ordinances, then only one nonconforming
aspect of the Plan requires the Plan to resubmitted. Since
Defendants already are aware of at least two nonconforming
features, they, by their own admission, have sufficient
.,'{.'.)
I
,
SAlOIS, GUIDO,
SHUFF &
MAS LAND
26 W, Hiah 5"""
Carlisle. fA
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. .
details to prepare both an answer and a defense to
Plaintiff's Action for Declaratory Judgment.
(d) Moreover, resubmission of a Subdivision Plan is
automatically subject to a detailed review by the Township
Zoning Officer and Engineer.
Thus, delineation of all
nonconforming aspects will be provided to the Defendants
during the Plan review procedure, as is customary. Again,
recitation of each and every provision in State and Local
law is unnecessary at this time. Such specificity will be
provided to the Defendants if this Honorable Court decides
that the "threshold issue" mandates a resubmission of the
Plan;
(e) Enumeration of each and every nonconforming aspect of
the Plan in this proceeding is not only premature, but may
also be prejudicial to the Plaintiff in the future if
specific areas of nonconformity are inadvertently omitted.
With this in mind, and without waiving other possible
nonconformities, Plaintiff believes and therefore avers that
the instant subdivision is inconsistent with: (1) The lot
area, lot width and road frontage standards contained in
Section 603(1)(b) of the Zoning Ordinance, as amended; (2)
The storm water management criteria set forth in Article 10
of the Subdivision Ordinance, as amended; and (3) The site
distance (that is, safe stopping distance required for
vehicular traffic) requirements for driveway access on to
arterial r'oads.
, .
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,
. .
. ,
3. Defendants complain that Plaintiff I s Complaint fails to
plead material facts and as a result, Defendants are unable to
Answer the Plaintiff I s Complaint and are prevented from preparing
a proper defense.
Plaintiff denies Defendants' assertion and
responds as follows:
(a) The Defendants are the developers of and the applicants
in Plans for the subdivision of land (hereinafter referred
to as "Yorkfield II"). As such, the Defendants have first
hand knowledge of all facts, circumstances and disputes
occurring in the eight year history of said subdivision.
Also, at all times material hereto, the Defendants have been
represented by the same counsel who has advanced the
Preliminary Objections now before this Honorable Court;
(b) Plaintiff's Complaint for Declaratory Judgment clearly
delineates the material issues, the facts and the law upon
which this action is based. Paragraph 6 of the Complaint
states that Yorkfield was given preliminary Plan approval on
February 18, 1988.
Paragraph 9 states that prior to
December 1995, the Yorkfield Subdivision was not completed,
no lots within the Subdivision had been sold, and no
SAlOIS, GUIDO,
SHUFF &
MASLAND
26 W. Iliah Slttel
CllI'lI.le.PA
substantial improvement had been made to the site of the
subdivision. Paragraphs 10 and 12-15 inclusive set forth
the pertinent facts occurring subsequent to the Preliminary
Plan approval or February 1988. Paragraph 16 and Exhibit
"B" refer to and incorporated into Paragraph 16 states that
on December 4, 1995, Plaintiff herein advised the Defendants
that the 1988 subdivision approval was void pursuant to
,),7
.
...., -~ ......A ~
..
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'. '.
operation of law, specifically Section 508(4)(ii) of the
Municipalities Planning Code (hereinafter referred to as
"MPC"), 53 Pa. C.S.A. 510508(4) (il).
The aforesaid
correspondence of December 4, 1995 also indicates, among
other things, that the Defendants' Subdivision Plan would
have to be resubmitted for approval and compliance with
amendments to the Township's Zoning and Subdivision
Ordinances.
Paragraphs 17 through 21 inclusive state that despite the
aforesaid correspondence, the Defendants prepared Deeds and
conveyed title to individual lots within the subdivision.
SAID CONVEYANCES WERE ACTUALLY TRANSFERS BETWEEN AND AMONG
THE DEFENDANTS THEMSELVES.
(c) Based on the aforesaid, Defendants claim to be
prevented from preparing an answer and a defense of this
action is frivolous and without merit.
4. Defendants next complaint that they cannot prepare an
answer or a defense to Plaintiff's Complaint due to Plaintiff's
failure to delineate which provisions of State and Local law were
violated when the Defendants prepared Deeds and transferred title
to individual lots. Plaintiff believes and therefore avers that
SAlOIS, GUIDO,
SHUFF & frivolous. Plaintiff responds as follows:
MASLAND
26W.HiahSIrecI (a) Paragraph 11 of the instant Complaint cites Section
Clllill., PA
Defendants' Preliminary Objections are again seen to be
508(4)(ii) of the MPC, 53 Pa, C.S.A. 510508(4)(ii);
(b) Paragraph 16 of Plaintiff I s Complaint contains
reference to the fact that the Defendants were advised, by
~S'
,...
~
. .
correspondence dated December 4, 1995 (Exhibit "B" to the
Complaint), that by operation of the aforesaid section, the
Subdivision Plan was null and void and that resubmission of
the Plan was required for subdivision of the tract;
(C) Paragraphs 17, 18 and 19 plead that despite the facts
contained in subparagraph (b) hereof, the Defendants
immediate Iv after receipt of Plaintiff's correspondence of
December 4, 1995, intentionally ignored the Township's
notice as well as the Township's invitation to come before
the Board of Supervisors and discuss any disagreement. It
is of further significance to note that the conveyance of
title to individual lots was BETWEEN AND AMONG THE
DEFENDANTS THEMSELVES. Therefore, Defendants' conduct can
be seem to be intentionally contrary to the authority
invested in the governing body of South Middleton Township.
In addition, Defendants conveved title to lots which do not
exist. Such is obviously in violation of the fundamental
principals
upon
which
Municipal
Zoning
and
the
SAIDIS, GUIDO,
SHUFF &
MASLAND
26 W. Hlah St=1
CarIl.I., PA
Municipalities Planning Code of this Commonwealth are based.
Finally, Plaintiff incorporates by reference thereto the
facts set forth in Paragraph 3 (c) hereof.
(d) Upon the facts contained in subparagraphs 4 (a) through
4 (c) inclusive, Plaintiff respectfully asserts that the
instant Complaint sets forth sufficient violations for State
and Local law to permit the Defendants to prepare a defense
as well as an Answer to Plaintiff's Complaint for
Declaratory Judgment.
;,q
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. ,
WHEREFORE, Plaintiff respectfully requests that this
Honorable Court dismiss the Defendants' Preliminary Objections.
1XL MOTION FOR MORB SPBCIFIC PLBADING
5. Defendants,.in the alternative to their Motion to
Strike, request an Order requiring Plaintiff to replead
Paragraphs 9, 10, 20, and 21 of their Complaint.
responds to these Defendants as follows:
Plaintiff
(a) The Pennsylvania Rules of Civil Procedure require the
pleading of the material facts upon which Plaintiff's cause
of action is predicated. It is well established law that
while the material facts must be plead with sufficient
specificity to enable the Defendants to prepare a defense to
the cause of action, the requisite specificity does not
require pleading of facts which are irrelevant, superfluous
or those which would amount to excess verbiage. The
Plaintiff is only required to reasonably inform the
Defendants of the basis for the cause of action so that a
defense can be prepared;
(b) For the reasons set forth in Paragraphs 1 through 4
inclusive in Plaintiff's response to Defendants' Motion to
SAlDIS, GUIDO,
SHUFF &
MASLAND
26 w. High St=\
Carlisle. fA
Strike, Plaintiff respectfully asserts that the instant
Complaint is adequately specific, in compliance with the
requirements contained in the Pennsylvania Rules of Civil
Procedure and well established case law; and
(c) In addition to the aforesaid, it is respectfully
submitted that the Pennsylvania Rules of Civil Procedure DO
NOT REQUIRE the pleading of facts known only to the
30
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Defendants, or the pleading of facts which can be
ascertained through discovery. If the paragraphs upon which
Defendants complaints are based, are found not to set forth
each and every violation, or each and every citation to
State and Local law, it is respectfully submitted that such
detail and specificity can be ascertained through the
discovery process.
6. If this Honorable Court finds the Defendants complaints
to be with merit, the Plaintiff respectfully requests this
Honorable Court for permission to amend the objectionable
paragraphs.
WHEREFORE, Plaintiff respectfully requests this Honorable
Court to strike the Defendants' Preliminary Objections, in the
alternative, to grant Plaintiff an opportunity to amend the
objectionable paragraphs.
I II. DEMURRER
7. Plaintiff incorporates by reference thereto each and
SAIDIS, GUIDO,
SHUFF &
MASLAND
26 W. HiSh Sll<c1
C.tlld.,PA
every averment contained in Paragraphs 1 through 6 inclusive as
though same were set forth herein fully at length.
8. Paragraphs 15-23 of Defendants' Preliminary Objections
seem to be asserting that Plaintiff's request for Declaratory
Judgment does not set forth a proper cause of action under the
Declaratory Judgment Act. While the Defendants' averments in
this regard are confusing and the arguments obscure, it is
believed and therefore averred that Defendants seem to be
asserting two objections:
(1) Plaintiff's references to
Defendants' informal attempts to secure septic permits; and (2)
31
SAID IS, GUIDO,
SHUFF &
MAS LAND
26 W, Hilh Slr<cl
CArlisl..PA
-.:
---
~
.
Because the Yorkficld II Subdivision Plan was approved in 1988,
it cannot expire nor be rescinded.
9. Plaintiff's complaint in Paragraphs 15 and 16 make
reference to "s~wagc permits." Plaintiff'G references thereto
are simply peripheral facts which have no major significance in
the instant dispute and are not essential for adjudication of
this m/ltter.
'l'he Plaintiff mentions "sewage permits" in
Paragraph 15 of the Complaint only to the extent that Plaintiff,
after indicating in January 1993 an intention to submit the
dispute to the Board of Supervisors for a ruling, did not proceed
to the Board of Supervisors for nearly three years. Instead, the
Board of Supervisors heard nothina concerning the subdivision
until they were advised by the Township Sewage Enforcement
Officer that it appeared that the Defendants were informally and
improperly attempting to secure sewage permits for each lot
contained in the Yorkfield II Subdivision.
Plaintiff's reference to "sewage permits" in Paragraph 16 is
again merely a peripheral reference, mentioned only to indicate
that once the Board of Supervisors learned of Defendants
"attempt" to secure sewage permits, and presumably proceed with
the Yorkfield II Subdivision, the Board of Supervisors
immedi.atel}' responded by advisir.g the Defendants that permits
would not be issued unless the Subdlvi.llion Plan was resubmitted
and approv~d by the governing body.
10. Plaintiff'e Complaint does NOT specifically seek any
relief involving "3ewage permito."
Accordingly, Defendants'
Objectionll in this regard are totally misplaced.
I
i
I
I
32.
~'
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~
.
11. Defendants I second claim sounding as a demurrer is
completely without merit. Section 508(4)(ii) of the MPC, which
has existed in the MPC in some form since at least 1972, clearly
and unequivocally provides a "legal basis" which indicates that
Subdivision Plans, despite prior approval and despite filing of
the approved Plan, must be completed within five years of
preliminary Plan approval. If not so completed within the time
period specified, the Subdivision Plans are subject to compliance
with any changes in local Ordinances which may have become
effective subsequent to submission of the approved Plans.
12. In addition to the clear and unambiguous time
limitation set forth in Section 508(4), there is also ample
Appellate Court opinions interpreting and sustaining said time
limitations.
See, Harwick v. Board of Supervisors of Upper
Saucon, 663 A.2d 878 (pa. Cmwlth. 1995); in re: Appeal of Mark-
Garner Associates, 50 Pa, Cmwlth. 354, 413 A.2d 1142 (1980).
SAIDIS, GUIDO,
SHUFF &
MASLAND
26 W. High 5"..,
Carllsle,PA
13. In response to Defendants' misplaced contention that
Declaratory Judgment is not the appropriate cause of action and
cannot provide "...Plaintiff with the relief sought" (see
Preliminary Objections, Paragraph 23), Plaintiff refers this
Honorable Court to the Commonwealth Court's opinion in York-Green
Associates v, Board of Supervisors of South Hanover Township, 486
A.2d 561 (pa. Cmwlth. 1985).
In York-Green, the dispute also
involved application of Section 508(4) of the MPC to a
subdivision which was not completed within five years of
preliminary Plan approval. The Court stated in pertinent part:
33
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"The purpose of the Act (Declaratory Judgments Act, 42 Pa,
C.S.A. 57531-7541 is "to settle and afford relief from
uncertainty and insecurity with respect to rights, status,
and other legal relations", and it is to be "liberally
construed and administered." York-Green, Supra. at P.564,
citing 42 Pa, C.S.A. 57541.
Based on the above, Defendants claim that the Declaratory
Judgment is inappropriate and cannot grant the relief sought by
the Plaintiff is totally groundless.
WHEREFORE, the Plaintiff respectfully requests this
Honorable Court to dismiss the Defendants I Preliminary
Objections.
Respectfully submitted,
SAlOIS, GUIDO, SHUFF & MAS LAND
r?t t ktA1 P. ftt1 JJJl1
Richard P. Mis1itsky, Esquire
Solicitor for the Board of
Supervisors of South Middleton
Township
26 West High Street
CarliSle, PA 17013
(717) 243-6222
Dated: ~I-h 1, /qC/1t
3y
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^ PAa'IUIONAL COlJ'OMnON
WlL~ F MAAUON
DANIEL K, DEAIlDOkff
THOMA> J. WIUIAM'
lva V, OtTO, lD
SnPHlN L, BLOOM
ClOkCl B, FAUlk, III
SCOtT ^. FIllE1AND
BMOLEY J, VANCE
^TTORNEYS ^ND COUNSELLOIl5 ^T U\W
TEN EAST HICH STREET
CNlLISLE. PENNSYLVANI^ 17013
nUPHON!
(717)243'3341
FAC>lMIU
17171243'1850
December 4, 1992
Edward W. Harker, Esquire
One West High Street
Room 202
Carlisle. PA 17013
'. '-.
RE: Donald Diehl - Yorkfield Development
Our File No, 5135,6
I _..
"
l
.,
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Dear Ed:
Don Diehl has shared with me your letter of December I, 1992, to Roger Morgenthal
in respect of the above matter.
Your letter appears to be premised on the above referenced plan being a preliminary plan
and we agree that if such would be the case, any final approval sought under the prior ordinance
would have to be secured within five years of the preliminary approval date,
However, the above plan was fmally approved in July of 1988 by the Supervisors of
South Middleton Township and was recorded on July 25, 1988 in regard to which I enclose a
copy of the cover sheet of the plan as recorded,
"7
As you know, Section 4(iv) of Section 508 of the Municipalities Planning Code provides
that where a landowner has substintially completed any required improvements on a fmal plan
within five years of the preliminary approval, no change of any ordinance enacted subsequent
to the date of filing of the preliminary plan shall modify or revoke any aspect of the approved
fmal plan penaining to zoning classification or density, lot, building, street or utility location,
We believe that this section of the MPC controls in this situation and would respectfully submit
that no required improvements were shown on such plan and. therefore. whatever required
improvements depicted have, in fact, been completed, It funher occurs to us that the mere
failure of a developer to sell lots jn a finally approved plan would not bar the development of
those lots in the future, Would it be otherwise. it would seem to us that many awkward
Exhibit "A"
35
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Edward W, Harker, Esquire
December 4, 1992
Page 2
questions of interpretation in administration would arise where a developer has sold lots, but
such lot owners have not caused any construction to be commenced, One wonders whether such
lots as have been sold but not developed would be protected under a prior ordinance, but lots
not yet sold or developed would not be,
We would appreciate your reconsideration of this maller in light of the infonnation
provided in this letter and would be happy to discuss it with you at your convenience, In any
event, upon your having an opportunity to reconsider this matter, we will request that the same
be the subject of a ruling by the .Township SupelVisors, We will, of course, follow up with
fonnally placing the matter on the agenda at the appropriate time, but we wished you to have
an opportunity to consider the matter funher before doing so.
Very truly yours,
MARTSON, DEARDORFF, WILUAMS & OTIO
Ivo V, Otto ill
IVOllas
Enclosure
cc: Mr. Donald E, Diehl
Mr. Raymond E, Diehl
36
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SCOlT A FREElAND
BRADLEY J. VANCE
A1TORNEYS AND COUNSELLOIU AT LAw
TEN EAST HIGH STREET
CARLISLE, PENNSYLVANIA 17013
nUPUONf,
1717) 243-3341
FAC11MILf
1717) 243-1850
January 19, 1993
Richard p, Mislitsky. Esquire
HEPFORD, SWARTZ, MENAKER & MORGAN
III Nonh Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
RE: Yorkfield/Diehl/South Middleton Township
Our File No. 5135,6
Dear Rich:
Following up on our telephone conversation of January 13, you had posed a question with
regard to what effect a resubmission of the above plan would have. if any, with respect to the
configuration of the plan,
~
As you are probably aware, since this plan was approved the South Middleton Township
Zoning Ordinance has changed in several respects, principally that lot sizes in the district in
question as well as minimum road frontage requirements have increased,
->,>
Accordingly, without going into great detail or commissioning an engineeriug study of
this maUer, we feel it quite safe to say that the number of lots in this subdivision would, under
the current Zoning and Subdivision Ordinance, be reduced as a result both of the increase in the
road frontage required as well as the increase in the minimum lot area.
Currently, under the final subdivision plan which was filed in July of 1988, 18 lots are
approved, As we had stated in our earlier correspondence to Mr, Harker, it is our view that as
a result of the final approval of this plan and the recordation of this plan incident to such
approval withoui conditions other than as stated on the face of the plan (none of which relate to
any bondable improvements) lots can be conveyed in their current configuration subject only to
use loning as it is currently cunstituted in this district,
Exhibit "B"
1/:; )f-~
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Richard p, Mislitsky, Esquire
January 19, 1993
Page 2
Refiling and rcapproval of this plan is accordingly, in our view, unnecessary, At the risk
of being repetitive, would it be otherwise, we would be at a loss to understand what
mechanisms, if any, the Township would have available to enforce such a requirement of reliling
and rcapproval if any lots had been sold to ultimate users with the live year period expiring prior
to any construction of dwelling units thereon,
Very truly yours,
M~ON~lliUmO~F'~LUAMS&OTIO
Ivo V. Otto ill
IVOllas
cc: Mr. Donald E, Diehl
.
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-514 CIVIL TERM
v.
RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL, DONALD
E. DIEHL, SUZANNE DIEHL,
HAROLD OTTO and SARA JANE
OTTO,
CIVIL ACTION: DECLARATORY
JUDGMENT
Defendants
CERTIFICATE OF SERVICE
On this 8th day of March, 1996, I, Tracie Myers, of the law
firm SAIDIS, GUIDO, SHUFF & MASLAND, hereby certify that I served
a true and correct copy of the foregoing Plaintiff's Answer to
the Preliminary Objections of the Defendants upon counsel for all
parties of record via United States Mail, postage prepaid,
addressed as follows:
Ivo V. Otto, III, Esquire
Ten East High Street
Carlisle, PA 17013
Edward L. Schorpp, Esquire
36 S. Hanover St.
CarliSle, PA 17013
SAlOIS, GUIDO, SHUFF & MASLAND
SHUFF &
MASLAND
26 W. Hlsh 5"",'
Carll.le, PA
40
,
"
~ I".
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(tbIt be typewritten and sulmitted in duplicate)
'-1/17/%
-
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter far the next Argunent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption lIUIt be stated in full)
BOARD OF SUPERVISORS OF SOl1l'H MIDDLE'roN
'IO'INSHIP, CUMBERLAND COUNl'Y, PENNSYLVANIA.
( Plaintiff)
VB.
RAYM)NI) E. DIEHL, GENEVIEVE A. DIEHL.
IXlNALD E. DIEHL. SUZANNE DIEHL. HAROLD CYl'IO
and SARA JANE CYl'IO,
(Defendant)
No. <;14
Civil Term
1996
1. State matter to be argued (i.e.. plaintiff's IIDtion far new trial. defendant's
denun:er to CCIIplaint. etc.): Preliminary Objections of the Defendants
2. Identify counsel. ~ will argue case:
(a) far plaintiff: Richard P. Mislitsky, Esquire
Address: 26 West High Street
Carlisle, PA 17013
(b) far defendant: Ivo V. Otto, III, Esquire
Address: Ten East High Street
Carlisle, PA 17013
3. I will notify all parties in writing within bio days that this case has
been listed for argunent.
4. Argunent Court Date: May 29, 1996
Il!lted: t../.( I 9(;
~
~
~
CERTIFICATE OF SERVICE
On this
I 'fIll
day of {If'7t i J
law firm of SAIDIS,
, 1996, I,
Tracie Myers, of the
GUIDO, SHUFF & MASLAND,
hereby certify that I served a true and correct copy of the
foregoing Praecipe for Listing Case for Argument upon the
following, via United States Mail, postage prepaid, addressed as
follows:
Ivo V. Otto, III, Esquire
Ten East High Street
Carlisle, PA 17013
Dated: l/-I1-Q(P
SAID~GUIDO, S~UFF & MASLAND
By: (DLCLCL': / VI L C -
Tracie Myers
43
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
II' THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-514 CIVIL TERM
Plllintiff
v.
RAYMOND E. DIEHL.
GENEVIEVE A. DIEHL,
DONALD E. DIEHL, SUZANNE
DIEHL, HAROLD OTTO and SARA
JANE OTTO,
CIVIL ACTION: DECLARATORY JUDGMENT
Defendant
_ r / ORDER OF COURT
AND NOW this ! 7 day of May, 1996, the within case is stricken from the Argument
Court list of May 29, 1996,
By the Court,
jJCL//~
I
J.
L(lf
F" ";).cc-'~-
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP.
CUMBERLAND COUNTY.
PENNSYLVANIA,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96.514 CIVIL TERM
Plaintiff
v.
RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL,
DONALD E. DIEHL. SUZANNE
DIEHL, HAROLD OTTO and SARA
JANE OTTO,
CIVIL ACTION: DECLARATORY JUDGMENT
Defendants
PETITION TO STRIKE CASE FROM ARGUMENT LIST
AND NOW, come the Defendants, by and through their co-counsel. Edward L. Schorpp,
Esquire. Landis, Bla~k & Schorpp. and file this pelition to strike the within mailer from the
argument list, based upon the following:
1. On or about January 30. 1996. Plaintiff. by and through its solicitor, Richard P.
Mislitsky, Esquire, filed a complaint for declaratory judgment in the within case,
2. Thereafter, Defendants filed preliminary objections to the complaint, which
preliminary objections were signed by Ivo V. 0110, III. Esquire and W. Darren Powell, Esquire, of
Martson, Deardorff, Williams and OliO, and by Edward L. Schorpp, Esquire, of Landis. Black &
Schorpp, which signatories clearly indicated both firms as co-counsel for Defendants, .
3. On March 8, 1996. Plaintiff filed a document entitled "Plaintiff's Answer to the
Preliminary Objections of the Defendant" and served a copy on Ivo V. 0110, Ill. Esquire and the
undersigned as co-counsel for Defendants.
45"
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~
4. Thereafter, on a date unknown to the undersigned, counsel for PlaintilTlisted this
matter for argument court.
S. At no time on or after that date did Richard P. Mislitsky, Esquire. counsel for
PlaintilT, nor the Prothonotary, notify the undersigned co-counsel that the matter had been listed
for argument.
6. Local Rule 210-2 requires "[t]he party listing the case for argument shall serve a
copy of the praecipe on all counselor any unrepresented party."
7. The undersigned co-counsel was informed on Wednesday. May IS, 1996. that this
case was listed for argument on May 29. 1996.
8. Pursuant to local rules of Court, Defendants' brief is due on or before Friday, May
17,1996.
9. As a result ofPlaintilrs counsel's clear violation of Local Rules and professional
ethics, the Defendants have been prejudiced in the full preparation and presentation of their brief
and argument in this case.
WHEREFORE, Defendants requests that this matter be stricken from the argument list of
May 29, 1996.
Respectfully submitted.
By:$~#4r
Edward L. Schorpp, Esquire
LANDIS. BLACK & SCHORPP
36 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 243-3727
Lfrc
~
~
VERIFICATION
I verify that the statements contained herein are true and correct. I understand that
false statements herein are made subject to the penalties of 18 Pa.C.S.A. ~4904. relating to
unsworn falsification to authorities.
-~~~'
Edward L. Schorpp, Esq.
Dated: -S--/b-~
47
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYL VANIA,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96.514 CIVIL TERM
PlaintilT
v.
RAYMOND E. DIEHL.
GENEVIEVE A. DIEHL,
DONALD E. DIEHL, SUZANNE
DIEHL, HAROLD OTTO and SARA
JANE OTTO,
CIVIL ACTION: DECLARATORY JUDGMENT
Defendant
CERTIFICATE OF SERVICE
I hereby certifY that a copy of the foregoing document, PETITION TO STRIKE CASE
FROM ARGUMENT LIST. was served this date by depositing same in the Post Office at
Carlisle. Pennsylvania, first-class mail. postage prepaid. addressed as follows:
Richard P. Mislitsky, Esq.
Saidis, Guido. ShulT & Masland
26 West High Street
Carlisle, PA 17013
Ivo V. 0110. III, Esq,
Martson, DeardorlT, Williams & 0110
Ten East High Street
Carlisle. PA 17013
LANDIS, BLACK & SCHORPP
BY:-~~~~
Edward L, Schorpp, Esq.
Dated: S--/6"-%
.. '~',,,,";;,;~,',",,"""-' -i,;,-;
~ en L;
('0.' o'
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(fllst be typewritten and subni.tted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter far the next Argunent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption /lUSt be stated in full)
BOARD OF SUPERVISORS OF SOlJI'H MIDDLE'ION
'IGlNSHIP, CUMBERLAND COUNrY, PENNSYLVANIA,
VB.
I Plaintiff)
RAYM:lND E. DIEHL, GENEVIEVE A. DIEHL,
OONALD E. DIEHL, SUZANNE DIEHL. HAroLD 0Tr0
and SARA JANE OTro,
( Defendant)
No. 514
Civil Term
19 96
1. State matter to be argued (i.e.. plaintiff's m::>tion for new trial, defendant's
derurrer to COlplaint. etc.): Preliminary Objections of the Defendants
2. Identify oounsel who will argue case:
(a) far plaintiff: Richard P. Mislitsky. Esquire
Address: 26 West High Street
Carlisle, PA 17013
(b) far defendant: Ivo V. Otto. III, Esquire
Address: Ten East High Street
Carlisle, PA 17013
I
Edward L. Schorpp. Esquire ~
36 S. Hanover Street
Carlisle, PA 17013
3. I will notify aU parties in writing within two days that this case has
been listed for argI.Inent.
4. Argunent Court Date: August 14, 1996
Dated:
Q - f .f/(I'
Attorney for ~
u
I
.,
~.
BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-514 CIVIL TERM
v.
RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL, DONALD
E. DIEHL, SUZANNE DIEHL,
HAROLD OTTO and SARA JANE
OTTO,
CIVIL ACTION: DECLARATORY
JUDGMENT
Defendants
CERTIFICATE OF SERVICE
On this
/{.i-
day of July, 1996, I, Tracie Myers, of the law
firm SAIDIS, GUIDO, SHUFF & MASLAND, hereby certify that I served
a true and correct copy of the foregoing Praecipe for Listing Case
for Argument upon counsel for all parties of record via United
States Mail, postage prepaid, addressed as follows:
Ivo V. Otto, III, Esquire
Ten East High Street
Carlisle, PA 17013
Edward L. Schorpp,
36 S. Hanover St.
Carlisle, PA 17013
Esquire
Dated: -:f-I-q~
SAIDrGUI~O, SHUFF & ~SLAND
BY'((}ltt.CU' N~<:..
Tracie Myers'
f
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BOARD OF SUPERVISORS I
OF SOUTH MIDDLETON TOWNSHIP I
CUMBERLAND COUNTY, PA, I
V. RAYMOND E. DIEHL, I
GENEVIEVE A. DIEHL, DONALD I
E. DIEHL, SUZANNE DIEHL, I
HAROLD OTTO, & SARA JANE OTTO I
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUN~Y, PENNSYLVANIA
SJ
NO. 96-514 CIVIL TERM
CIVIL ACTION - LAW
IN REI DBFBNDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S
COMPLAINT FOR DBCLARATORY JUDGMENT
BBFOREI SBBBLY. P.J.. BBSS. J.. BAYLBY. J.
, Y _ ORDER OF COURT
AND NOW, this tlI'day of SEPTEMBER, 1996, after careful
consideration of defendants' Preliminary Objections to
plaintiff's Complaint for Declaratory Judgment, and pursuant to
the attached opinion, the Court will SUSTAIN defendants'
objection in the nature of a demurrer. Accordingly, the Court
will not address the other grounds for objections. Plaintiff's
complaint is DISMISSED with prejudice.
, P.J.
Richard P. Hislitsky, Esquire
Ivo V. Otto, III, Esquire
Edward L. Schorpp, Esquire
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BOARD OF SUPERVISORS : IN THE COURT OF COMMON PLEAS OF
OF SOUTH MIDDLETON TOWNSHIP : CUMBERLAND COUNTY, PENNSYLVANIA
CUMBERLAND COUNTY, PA, :
V. RAYMOND E. DIEHL, :
GENEVIEVE A. DIEHL, DONALD :
E. DIEHL, SUZANNE DIEHL, :
HAROLD OTTO, & SARA JANE OTTO: NO. 96-514 CIVIL TERM
:
: CIVIL ACTION - LAW
IN RE: DBFBNDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S
COMPLAINT FOR DBCLARATORY JUDGMENT
BBFORE: SHBBLY. P.J.. HBSS. J.. BAYLBY. J.
OPINION AND ORDBR OF COURT
Before the Court are defendants' preliminary objections to
plaintiff's Complaint for Declaratory Judgment in a land use
matter. Defendants claim that the complaint has failed to set
forth a cause of action entitling plaintiff to relief.
Additionally, defendants contend that plaintiff failed to plead
material facts on which the complaint is based. Defendants
further request that !! 9, 10, 20 and 21' be stricken from the
complaint, or in the alternative, that plaintiff plead these
averments more specifically. We heard argument on August 14,
1996.
FACTS AND PROCEDURAL HISTORY
Plaintiff's Complaint for Declaratory Judgment alleges the
following: Defendants received preliminary plan approval for a
subdivision known as Yorkfie1d lIon February 18, 1988, with
'We note that on page 3 of defendants' objections,
defendants have omitted! 21 in their request for relief,
presumably through inadvertence.
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NO. 96-514 CIVIL TERM
final approval occurring on July 21, 1988.' Over four years
expired but Yorkfield II was yet to be developed in accordance
with the subdivision plan.) In view of the lack of development,
the parties discussed through correspondence. the issue of the
impact of S 508(4)(ii)' of the Municipalities Planning Code on
the Yorkfield II subdivision.' Shortly before the expiration of
five years, the Township advised defendants that the "five year
protection" afforded by S 508(4)(ii) was in jeopardy if the
subdivision was not completed within five years.'
Defendants took no action to get this issue before the Board
of Supervisors nor did they take any action to complete the
subdivision within the required five years from plan approval.8
When defendant Donald Diehl made informal requests for sewage
permits in November of 1995 for the subdivision, the Township
'Complaint for Declaratory Judgment, hereinafter Complaint.
'Complaint, 'I 9.
.Complaint, Exhibit A
, When an approval for a plat, whether preliminary or
final, has been approved without conditions or approved by the
applicant's acceptance of conditions, no subsequent change or
amendment in the zoning, subdivision or other governing ordinance
or plan shall be applied to affect adversely the right of the
applicant to commence and to complete any aspect of the approved
development in accordance with the terms of such approval within
five years from such approval.
'Complaint, 'I 12.
'Complaint 'I 13; Exhibit A
8Complaint, '1'1 9, 14.
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NO. 96-514 CIVIL TBRM
Sewage and Bnforcement Officer informed the Board of the
request.' By letter dated December 4, 1995, the Board advised
Donald Diehl that the subdivision plan was rendered null and void
by operation of law, that no sewage plans would be issued, and
that defendants could appear before the Board if they disagreed
with the decision. I. Defendants Harold and Sara Otto then
transferred legal title to the Yorkfield II lots to defendants
Raymond and Donald Diehl. Raymond and Donald Diehl in turn
conveyed these lots among themselves and their wives, Genevieve
and Suzanne Diehl."
Shortly after learning of these transfers, plaintiff filed a
Complaint for Declaratory judgment, seeking this Court to 1) void
the conveyances and strike them from the books of the Recorder of
Deeds, 2) order that no conveyance of individual lots may be made
from Yorkfield II until the plan has been reeubmitted to
plaintiff to insure compliance with its existing ordinances, and
3) declare that Yorkfield II is subject to the existing zoning,
sUbdivision, and/or other ordinances of the Township.l'
On February 20, 1996, defendants collectively filed
preliminary objections in the nature of a motion to strike,
'Complaint, ! 15.
I.Complaint, ! 16, Bxhibit A.
"Complaint, ! 18. Plaintiff's brief states that Courthouse
records reveal that defendants took title to the property ten
days after they began transferring the property among themselves.
u.li.lul Complaint for Declaratory Judgment
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NO. 96-514 CIVIL TERM
request for more specific pleading, and a demurrer. Plaintiff
filed an answer to these objections on March 8, 1996.
DISCUSSION
We will address the demurrer because our decision regarding
that objection moots the other objections. Initially we note the
well established standard for disposing of preliminary objections
in the nature of a demurrer as set forth by our supreme court.
All material facts set forth in the complaint as well as all
inferences reasonably deducible therefrom are admitted as true.
Kyle v. McNamara & Criste, 506 Pa. 631, 633-34, 487 A.2d 814, 815
(1985). The question presented by the demurrer is whether, on
the facts averred, the law says with certainty that no recovery
is possible. Any doubt should be resolved in favor of overruling
the demurrer. Id.
We next turn to the law regarding declaratory judgmell~s.
The purpose of the Declaratory Judgment Act "is to settle and to
afford relief from uncertainty and insecurity with respect to
rights, status, and other legal relations, and is to be liberally
construed and administered." 42 Pa. C.S.A. S 7541(a). However,
"the presence of antagonistic claims indicating imminent and
inevitable litigation coupled with a clear manifestation that the
declaration sought will be of practical help in ending the
controversy are essential to the granting of relief by way of
declaratory judgment." Gulnac v. South Butler School District,
526 Pa, 483, 487, 587 A.2d 699, 701 (1991). "A declaratory
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NO. 96-514 CIVIL TERM
judgment must not be employed to determine rights in anticipation
of events which may never occur or for consideration of moot
cases or as a medium for rendition of an advisory opinion." rd.
Furthermore, declaratory relief is not available with
respect to any "[p]roceeding within the exclusive jurisdiction of
a tribunal other than a court [or any] proceeding involving an
appeal from an order of a tribunal." 42 Pa. C.S.A. S 7541(c)(2)
'(3). If declaratory judgment proceedings are "used to prejudge
issue. that are committed for initial resolution to an
administrative forum . . . then the trial court can be said to
have exceeded the limitations of the Act." Clearfield Bank &
Trust Co. v. Shaffer, 381 Pa. Super. 259, 262, 553 A.2d 455, 456
(1989).
In applying the aforementioned law to the instant case, we
must grant defendants' demurrer. All that defendants have done
at this point is to transfer lots among themselves. Defendants
have not attempted to develop the lots or argue that they have
transferred lots that are in compliance with the requisite
ordinances. Furthermore, there is no need for the Court to
search for improper motives for transference of the lots because
any such motives are irrelevant for purposes of ruling on these
objections before us.
Moreover, we disagree with plaintiff's contention that
defendants transferred non-existent lots because the Yorkfield II
plan does not comply with current ordinances. Although
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NO. 96-514 CIVIL TERM
plaintiff's concern that these lots will be transferred to yet
other owners before they comply with all of the current
ordinances is a reasonable one, no actual controversy exists
until an attempt is made to develop the lots.
Plaintiff directs the Court to York-Green Associates v.
Board of Supervisors of South Hanover Township, 87 Pa, Commw. 93,
486 A.2d 561 (1985) in support of its position that defendants
must resubmit the subdivision plan for approval before any
transfer of the lots from Yorkfield can take place. After
examining that case, we do not believe it is on point, as
plaintiff contends. In York-Green, the court did not address
whether the conveyance of lots should be voided through a
declaratory judgment action when the five year protection period
for plan approval afforded by S 508(4)(ii) has expired. We
believe that defendants are not barred from conveying the lots of
a subdivision after this period of protection ends.
In conclusion, no imminent controversy exists before this
tribunal. Should defendants later to decide to develop Yorkfield
II or convey the lots to others who choose to do so, these
individuals will have to come before the Board for approval.
This Court finds that to void the conveyances of lots because
they allegedly do not comply with current ordinances would be to
exceed the limitations of the Declaratory Judgement Act.
Additionally, the Court will not render an advisory opinion that
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NO. 96-514 CIVIL TERM
holds Yorkfield II in non-compliance with current ordinances.1J
It is within the domain of plaintiff to render an official
opinion if and when development occurs.
ORDER OF COURT
this /J,t/Jday of SEPTEMBER,
AND NOW,
1996, after careful
consideration of defendants' Preliminary Objections to
plaintiff's Complaint for Declaratory Judgment, and pursuant to
the attached opinion, the Court will SUSTAIN defendants'
objection in the nature of a demurrer. Accordingly, the Court
will not address the other grounds for objections. Plaintiff's
complaint is DISMISSED with prejudice.
By the Court,
/s/ Harold E. Sheelv
Harold E. Sheely, P.J.
Richard P. Mislitsky, Esquire
Ivo V. otto, III, Esquire
Edward L. Schorpp, Esquire
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UAlthough the complaint does not specifically request that
the Court declare Yorkfield II in non-compliance with the
ordinances, that is the precise reason for requesting that the
transfers be voided and stricken from the books. Plaintiff has
argued this position in its brief.
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP
CUMBERLAND COUNTY, PA.,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL, DONALD
E. DIEHL, SUZANNE DIEHL,
HAROLD OTTO, AND SARA JANE
OTTO,
NO. 96-514 CIVIL TERM
CIVIL ACTION - LAW
Defendants
HorICE OF APPEAL
Notice is hereby given that the Board of Supervisors of South
Middleton Township, Cumberland County, Pennsylvania, Plaintiff
above-named, hereby appeals to the Commonwealth Court of
Pennsylvania, from the Order entered in this matter on the 12th day
of September, 1996. This Order has been entered in the docket as
evidenced by the attached copy of the docket entry.
Respectfully submitted,
SAIDIS, GUIDO, SHUFF & MASLAND
Date: September 23, 1996
By : Jh....:.l-.::r . F< ...1.
Richard P. Mislitsky, Esquire
Supreme Court ID #28123
David J. Freed, Esquire
Supreme Court ID #76622
2109 Market Street
Camp Hill, PA 17011
(717) 761-1881
Attorney for Plaintiff
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SOUTH MIDDLETON TOWNSHIP
CUMBERLAND COUNTY, PA.,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL, DONALD
E. DIEHL, SUZANNE DIEHL,
HAROLD OTTO, AND SARA JANE
OTTO,
NO. 96-514 CIVIL TERM
CIVIL ACTION - LAW
Defendants
PROOF OF SERVICE OF NOTICE OF APPEAL
I hereby certify that I am this day serving copies of the
foregoing notice of appeal, docket entries and this proof of
service on the following persons in the manner indicated below:
Service by first class mail addressed as follows:
Ivo V. Otto,
10 East High
Carlisle, PA
II I, Esquire
Street
17013
Edward L. Schorpp, Esquire
36 South Hanover Street
Carlisle, PA 17013
Honorable Harold E. Sheely, P.J.
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Thomas Cheffins, Esquire
Court Administration
Cumberland County
Courthouse
One Courthouse Square
Carlisle, PA 17013
I understand that any false statements herein are made subject
to the penalties of 18 Pa, Cons. Stat. S4904 (relating to unsworn
falsification to authorities).
Respectfully submitted,
SAIDIS, GUIDO, SHUFF & HAS LAND
Date: September 23, 1996
By: ..\\..u':.\.:J. F:;.. ...1
Richard P. Mistitsky, Esquire
Supreme Court 10 #28123
David J. Freed, Esquire
Supreme Court 10 #76622
2109 Market Street
Camp Hill, PA 17011
(717) 761-1881
Attorney for Plaintiff
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1996-00514
Cumbe~nd County Prothonotary's ~fice Page 1
.ivil Case Inquiry
SOUTH MIDDLETO~ TWP BD OF SUP (VSj DIEHL RAiMOND E ET AL
Reference No..: Filed........: 1/30/1996
Case Type.....: COMPLAINT Time.........: 15:21
Judgment. . . . , . : .00 Execution Date 0/00/0000
Judge Assigned: SHEELY HAROLD E PJ Sat/Dis/Gntd.. 0/00/0000
Jury TriaL...
Higher Court 1
Hiaher Court 2
.......................................................,........................
General Index Attorney Info
SOUTH MtDDLETON TOWNSHIP PLAINTIFF MISLITSKY RICHARD P
BOARD OF SUPERVISORS OF
520 PARK DRIVE
BOILING SPRINGS PA 17007
DIEHL RAYMOND E DEFENDANT OTTO IVO V III
315 MYERS ROAD
CARLISLE PA 17013
DIEHL GENEVIEVE A DEFENDANT OTTO IVO V III
315 MYERS ROAD
CARLISLE PA 17013
DONALD E DIEHL DEFENDANT OTTO IVO V III
110 W SPRINGVILLE ROAD
BOILING SPRINGS PA 17007
DIEHL SUZANNE DEFENDANT OTTO IVO V III
110 W SPRINGVILLE ROAD
BOILING SPRINGS PA 17007
OTTO HAROLD DEFENDANT OTTO IVO V I II
12 SOUTH RIDGE ROAD
BOILING SPRINGS PA 17007
OTTO SARA JANE DEFENDANT OTTO IVO V III
12 SOUTH RIDGE ROAD
BOILING SPRINGS PA 17007
......*..........******..................................***............***.....
· Date Entries .
***...***.**.........**.*****.....****...****....**...............*****.**...L..
01/30/96
02/08/96
02/20/96
03/08/96
04/17/96
05/17/96
05/17/96
COMPLAINT - CIVIL ACTION
PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFTS BY IVO V OTTO III ESQ
DEFENDANTS' PRELIMJNARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
PLAINTIFF'S ANSWER TO THE PRELIMINARY OBJECTIONS OF THE DEFENDANTS
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY RICHARD P MISLITSKY ESQ
PETITION TO STRIKE CASE FROM ARGUMENT LIST
ORDER OF COURT - DATED 5/17/96 - IN RE PETITION TO STRIKE CASE FROM
ARGUMENT LIST - CASE STRICKEN - BY HAROLD E SHEELY PJ - NOTICE
MAILED 5/17/96
07/01/96 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY RICHARD P MISLITSKY ESQ
09/12/96 OPINION AND ORDER OF COURT - DATED 9/12/96 - IN RE DEFENDANT'S
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT FOR DECLARATORY
JUDGMENT - COURT WILL SUSTAIN DEFENDANTS' OBJECTION IN THE NATURE
OF A DEMURRER - PLAINTIFF'S COMPLAINT IS DISMISSED WITH PREJUDICE -
BY HAROLD E SHEELY PJ - COPIES MAILED 9/12/96
..........**....**..................****.*****..........*.............**.~......
· Escrow Information .
· Fees & Debi ts Bea Bal pvmts/ Ad 1 End Bal .
************..........***.*.*.*.,********.**....,*****..........................
35.00 35.00 .00
.50 .50 .00
5.00 5.00 .00
5.00 5,00 .00
------------------------ ------------
45.50 45.50 .00
**....**.............***************.*.******.***********....*..*.*...**.**...**
* End of Case Information .
*.********.*.****...*.**.........*.**.....*****.**........................**....
COMPLAINT
TAX ON CMPLT
SETTLEMENT
JCP FEE
63
IN Tr~OMMONWEALTH COURT OF PE~iLVANIA
NOTICE OF DOCKETING APPEAL
Docket No: 2580 C.D. 1996 Filed Date: 09/23/96
Re: BD. OF SUPRV. S. MIDDLETON TWP. v DIEHL
Lower Court No.: 96-514 CIV
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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.
The docket number in the Commonwealth Court is endorsed on this notice.
The Commonwealth Court docket number must be on all correspondence
and documents filed with the Court.
Under Chapter 19 of the Penusylvania 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, including 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
forth 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 attorne~ should review the record of the
trial court, in order to insure that 1t 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 writing as
soon as possible.
Lower Court Judge: Honorable Harold E. Sheely
Attorney: Richard P. Mislitsky
Attorney: David J. Freed
Attorney: Ivo V. Otto III
Attorney: Edward L. Schorpp
Notices Exit: 09/26/96 Prothonotary
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Office of the I?rcthenetary
CC1::Ionwealth Ceurt of I?ennsylvania
Filing Office
suite 990
'rhe Widener Building
One South I?enn Square
Philadelphia, I?A 19107
(21S) 560-5742
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Office of the I?rcthcnctarl
Cc::onwealth Co~ of Pennsylvania
P. o. Bex lJ.730
Har=isl:lurq, PA 17108
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Filings lIIay be lIIade }.n t1er~on at the fellC'""ing address (e."Ccetlt on
Saturdays, sundays and leqal HelidaYs cl:lSlIrled by I?ennsylvania
CourtS) be~""een 9:00 a.lII. and 4:00 p.m.
Office of the Chief CJ.erk
Cc::onwealth Court of Pennsylvania
Rocm ~24
Sixth Floer
South Office Buildinq
Har=isburq, PA 17120
(717) 787-5884
I?leadings and similar papers (but net paper.:ooks or certified
records) may also be tiled jn t1er.lon on1v at:
The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00
p.:II.
Onder PA. R.A.P. 3702, writs or other precess issuing out of the
Com:enweal~~ Courc shall ~~it only from the Har=isl:lurq Office and
shall be returnable thereto.
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SOUTH'MIDDLETON TOWNSHIP
CUMBERLAND COUNTY, PA.,
Plaintiff
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IN. THE COURT OF COMMON PLEAS ,'.
. CUMBERLAND COUNTY,' PENNSYLVANIA "
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RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL, DONALD
E. DIEHL, SUZANNE DIEHL,
HAROLD OTTO, AND SARA JANE
OTTO,
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NOTICE OF APPEAL
Notice is hereby given that the Board of Supervisors of South
Middleton Township, Cumberland County, Pennsylvania, Plaintiff
above-named, hereby appeals to the Commonwealth Court of
Pennsylvania, from the Order entered in this matter on the 12th day
of September, 1996. This Order has been entered in the docket as
evidenced by the attached copy of the docket entry.
Respectfully submitted,
SAIDIS, GUIDO, SHUFF & HASLAND
Date: September 23, 1996
By: .1b..u..:J -.:r, r:.. G. .t
Richard P. Mislitsky, Esquire
Supreme Court rD #28123
David J. Freed, Esquire
Supreme Court ID #76622
2109 Market Street
Camp Hill, PA 17011
(717) 761-1881
TFllJE COpy FROM RECORD
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All p !-~:ial Kotie:s
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Pet:it: ~ ter Review - $SS.
Petit~ '~ fer Pe::ission t:c Appeal - $S5. (c.o.,)
Petit:.:. :: ter Review or Appea.l.s
H'Unc_ .';J!'O 'l'tn!c _ sss.
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Petit.:.:~ tor leco~iderat:ien o~ Sin;le ~c!qe
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAN~ COUNTY, PENNSYLVANIA
NO. 96-514 CIVIL TERM
v.
RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL, DONALD
E. DIEHL, SUZANNE DIEHL,
HAROLD OTTO and SARA JANE
OTTO,
CIVIL ACTION: DECLARATORY
JUDGMENT
Defendants
PLAINTIFF'S BRIEF IN OPPOSITION
TO THE DEFENDANTS' PRELIMINARY OBJECTIONS
I. INTRODUCTION
Plaintiff does not believe that the Complaint in this matter
is deficient in any respect. However, if this Honorable Court
disagrees, Plaintiff will gladly file an amended complaint. It
1s Plaintiff's desire to avoid the possibility of multiple,
repetitive filir.gs of Preliminary Objections.
Plaintiff would like to accentL'.ate the fact the matter
b~fore this Honorable Court is the sufficiency of Plaintiff's
complaint for Declaratory Judgment.
Whether the Defendants'
SAID IS, GUIDO,
SHUFF &
MAS LAND
26 W. High Stl't'((
Cwlislc.VA
Subdivision approval remains valid eight years after final plan
approval, or whether Section 506(4) of the Municipalities
Plnnning Code renders the Defendants' Subdivision approval
in\'l:llid by operation of law are the ultimate issues to be decided
by this Court ufter discovery and legal argument. These issues
are not now before Court.
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SAlOIS, GUIDO,
SHUFF &
MAS LAND
26 W. Ihgh 5"..,
C4Ili!dc.IJA
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II. ~CTUAL BACKGROUND
In 1983, the Defendants received plan approval for a
Subdivision of land along SR 174 in South Middleton Township.
Said Subdivision had seven building lots and one large residual
lot.
Said plan was entitled "Yorkfield."
In or about 1987,
Defendants submitted a second Subdivision Plan encompassing the
large residual lot referred to above.
It is this second
Subdivision Plan which is at issue herein.
For purposes of
clarity, Plaintiff' s Complaint refers to Subdivision Plan at
issue as "Yorkfield II."
Yorkfield II received preliminary plan approval on February
18, 1988. It received final approval on July 21, 19BB. The plan
was recorded on July 26, 19BB. In 1992, four and a half years
after preliminary plan approval, counsel for the Defendants
inquired as to the Board of Supervisors I interpretation of
Section 508(4) of the Municipalities Planning Code as it
pertained to the "Yorkfield II" Subdivision. Counsel for the
Defendants and the Township Solicitor exchanged correspondence on
this issue between September 1992 and January 1993. Attached
hereto and collectively marked as Exhibit "A" is correspondence
dated September 16, 1992 from Robert M. Morgenthal, Esquire,
correspondence dated December 1, 1992 and December 9, 1992 from
Edward W. Harker, Esquire (Township Solicitor), correspondence
dated December 4, 1992 from Ivo V. Otto, III, (counsel for the
Defendants), and correspondence dated January 19, 1993 from
Attorney Otto to the newly appointed Township Solicitor, Richard
P. Mislitsky, Esquire.
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As can be seen from the attached correspondence, Defendants
were advised that the Township Board of Supervisors believed that
the "five year protection" afforded a Subdivision by Section
SOB (4) was in jeopardy if the Subdivision was not completed
within five years. As also can be seen on page 2 of Attorney
Otto I S correspondence dated December 4, 1992, Defendants
indicated an intention to have this matter placed on the agenda
of the Board of Supervisors for consideration.
After January 1993, Defendants took no action to get this
issue before the Board of Supervisors. Defendants also took no
action to complete the Subdivision within the required five years
from preliminary plan approval.
In or about November 1995, the Defendant, Donald E. Diehl,
made informal requests for sewage permits to the Township Sewage
Enforcement Officer (SEO). The Township SEO informed the Board
of Supervisors of said request.
By letter dated December 4,
1995, Plaintiff advised the Defendant of their belief that the
Subdivision Plan herein at issue was rendered null and void by
operation of law. Plaintiffs further advised the Defendant that
SAIDIS, GUIDO.
snUFF &
MASLAND
26 w. High SIm:1
CDJlisle. PA
no sewage permits would be issued and invited the Defendants to
appear before the Board of Supervisors if they disagreed with the
decision (see correspondence dated December 4, 1995 attached
hereto) .
Instead of appearing before the Board of Supervisors to
discuss this matter, the Defendants began transferring lots among
themselves and recording the transfers with the Recorder of
Deeds.
Such action was contrary to the Board's decision as
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expressed in its correspondence of December 4, 1995. In
addition, the transfer of lots occurred PRIOR TO THE D~FENDANTS
HAVING TITLE TO THE LAND BEING TRANSFERRED.
A review of
Courthouse records revealed that the Defendant did not take title
to the property until December 18, 1995. This was ten days after
Defendants began transferring lots among themselves.
The Deeds reflecting transfer of the lots among the
Defendants and a later Deed transferring the land to the
Defendants were all recorded with the Recorder of Deeds on
December 29, 1995.
Shortly after learning of the aforesaid transfers, Plaintiff
commenced this Action for Declaratory Judgment on January 30,
1996.
In response to Plaintiff's Complaint for Declaratory
Judgment, Defendants filed Preliminary Objections which are
presently before this Court for adjudica~ion.
III. ARGUMENT
1. MOTION TO STRIKE.
Defendants contend that Plaintiff I s Complaint failed to
plead material facts on which the cause of action is based in
violation of Rule 1019 of the Pennsylvania Rules of Civil
SAID IS. GUIDO,
SHUFF &
MASLAND
26 W, High 5'm:'
emll.le, PA
Procedure.
Plaintiff incorporates by reference thereto its answer to
Defendants' Preliminary Objections. Plaintiff also incorporates
by reference thereto correspondence between counsel which is
attached hereto.
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It is respectfully submitted that the instant Complaint does
set forth the material facts upon which this cause of action is
based.
The correspondence among counsel clearly reflects knowledge
of the basis for this cause of action.
In addition, the
Complaint herein at issue clearly and concisely sets forth the
facts and the law upon which this action is based. Paragraph 6
of the Complaint states that Yorkfield was given preliminary plan
approval on February 18, 1988. Paragraph 9 states that prior to
December 1995, the Yorkfield Subdivision was not completed in
that no lots within the Subdivision had been sold and no
substantial improvements had been made to the site of the
Subdivision.
Paragraphs 10 and paragraphs 12 through l5
SAlOIS, GUIDO,
snUFF &
MAS LAND
26 W.lligh S"""I
Carlisle, VA
in"lusive set forth pertinent facts occurring subsequent to the
preliminary plan approval in February 1988. Paragraph 16 and
Exhibit "B" attached to the Complaint states that on December 4,
1995, the Township Board of Supervisors, through counsel, advised
the Defendants that the 1988 Subdivision approval was null and
void pursuant to operation of law. Section 508(4)(ii) of the
Municipalities Planning Code (hereinafter referred to as the
"MPC"), paragraph 16 and the correspondence attached to the
Complaint also indicate, among other things, that the Defendants'
Subdivision Plan would have to be resubmitted for approval in
compliance with the amendments to the Township Zoning and
Subdivision Ordinances.
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In paragraphs 17 through 21 inclusive, the Complaint states
that, despite the aforesaid determination by the Board of
Supervisors, the Defendants prepared Deeds and conveyed title to
individual lots within the Subdivision. The Complaint indicates
that said conveyances were actually transfers of title between
and among the Defendants. Paragraph 18 states that while the
Deeds conveying title among the Defendants dated December 8,
1995, title is not vested in any of the transferees until
December 18, 1995. This is ten days after the transfer of the
property among the Defendants.
In summary, the Complaint in this matter states precisely in
paragraph form that, while preliminary plan and final plan
approval was granted to the Subdivision Plan which underlies this
cause of action, the Township governing body believes that the
Subdivision Plan was rendered null and void by operation of law.
This is based on Section 508 of the Municipalities Planning Code.
The Complaint also indicates that, despite offers by the
governing body to discuss the issue, the Defendants ignored the
determination of the governing body and began transferring lots
in the Subdivision which had been rendered null and void by
operation of law some three years before the transfers took
SAIDIS, GUIDO.
SHUFF &
MAS LAND
26 W. High 5'1<<'
Carlisle.l'A
place.
It is respectfully submitted that Plaintiffs have set forth
the material facts upon which this cause of action is based.
2. MOTION FOR A MORE SPECIFIC PLEADING.
While Defendants have included what they allege to be vague
and nonspecific, paragraphs in Plaintiffs Complaint under a
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SAIDIS. GUIDO,
SHUFF &
MAS LAND
26 W. Ili&h Sir"'"
ClUli5Ic:.PA
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heading of a Motion to Strike, it is respectfully submitted that
Defendants' averments really amount to an alleged lack of
specificity in the Complaint. As such, they will be addressed in
this section of Plaintiff's Brief.
It is well established that, while the material facts
supporting the cause of action set forth in the Complaint must be
plead with sufficient specificity to enable the Defendant to
prepare a defense, the requisite specificity does not require
pleading the facts which are irrelevant, superfluous, or those
which would amount to excess verbiage. Under well established
law, the Plaintiff is only required to reasonably inform the
Defendants of the basis for a cause of action so that a defense
can be prepared.
The Plaintiff again directs this Court's attention to the
correspondence attached hereto.
It is respectfully submitted
that said correspondence belies the Defendants' alleged lack of
knowledge concerning the instant cause of action.
The said
correspondence reflects that the Defendants have precise
knowledge upon which this cause of action is based. As such, the
Defendants have sufficient information and knowledge to prepare
a defense.
The Plaintiff will specifically address the
allegations raised by the Defendants.
Defendants first complained that "paragraph 9 fails to
specify what is meant by substantial improvements."
The term "substantial improvement" is taken from the
Municipalities Planning Code, specifically Section 508(4). The
correspondence from defense counsel uses the same terminology.
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It is, therefore, respectfully submitted that the Defendants do
understand the meaning of the phrase.
In addition, the Defendants are the owners and developers of
the Yorkfield II Subdivision. As such, the Defendants are in the
best position to know whether or not improvements have been made
to the property, and whether or not said improvements are
"substantial."
The Defendants' argument in this matter is
tantamount to requesting that the Plaintiffs prove a negative.
Plaintiffs contend that no improvements have been made. Again,
the Defendants are on the best position to set forth whether or
not improvement to the land has Occurred.
It is respectfully
submitted that only discovery will establish the facts necessary
to determine this issue.
The Defendants next complained that paragraph 10 does not
set forth the sections of the Zoning Ordinance and the sections
of the Subdivision Ordinance which were amended subsequent to the
preliminary plan approval in February of 1988. In this regard,
it is important to remember that, if the SUbdivision has become
null and void by operation of law, only one amendment to the
Township Ordinances is necessary to require resubmission of the
plan.
The Plaintiff again points this Honorable Court to the
SAIDIS, GUIDO,
SnUFF &
MASLAND
26 W. Hlsh 51"""
CalII.r.. PA
correspondence among counsel. Correspondence from counsel for
the Defendants dated January 19, 1993 points out that at least
two amendments were adopted which affect the subdivision plan
which was approved in 1988. These two items themselves require
resubmission of the plan for approval by the Township. It would
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be unnecessary and inappropriate to require the Township to
engage an engineering study to determine all the applicable
provisions of the Township Ordinances which have been amended.
Such an engineering review is part of the subdivision approval
process.
The Defendants next alleged that paragraph 20 of Plaintiff's
Complaint fails to specify or identify which sections of the
Township Ordinances or the Municipalities Planning Code were
violated by the Defendants' conveyances of lots in December of
1995.
Plaintiff again points this Honorable Court to the
correspondence by and between counsel is attached hereto. It is
respectfully submitted that said correspondence reflects that the
Defendants are keenly aware of the underlying issues in this
case.
Simply stated, Plaintiff's Complaint for Declaratory
Judgment is based on the application of Section 508 of the
Municipalities Planning Code to the instant matter. The
Defendants are aware of this. If Section 508(4) of the MPC, as
applied to the facts of this case (which will be determined by
discovery), renders the Defendants' 1988 subdivision approval
null and void, then the Plaintiffs are entitled to Declaratory
Judgment in their favor.
If the facts as ascertained through
SAID IS. GUIDO.
snUFF &
MAS LAND
2(1 W. High SIr<<t
Culi\It',VA
discovery establish that Section 508 (4) of the MPC has been
satisfied by the Defendants, then Plaintiffs' request for
Declaratory Judgment must fail. Again, it is submitted that the
correspondence attached hereto clearly reflects Defendants'
knowledge and comprehension of the underlying issues.
77
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The Defendants finally complained that paragraph 21 of the
instant complaint does not specify under what authority the
Yorkfield II Subdivision Plan expired or how it was rescinded.
The Plaintiff directs the Court's attention to correspondence
dated December 4, 1995 which was attached to Plaintiff's
Complaint for Declaratory Judgment. Said correspondence clearly
indicates that the Township's governing body acted upon what they
believe to be an application of Section 508(4) o.f the
Municipalities Planning Code.
If the governing body's
interpretation of Section 508(4) is correct, the subdivision plan
herein at issue expired by operation of law. As a result, the
lots which were transferred among the Defendants are transfers of
lots which do not exist. It is again respectfully submitted that
the Defendants are aware of the issues in this matter and have
sufficient knowledge to prepare a defense to this case. If it is
Defendants'
contention
that
the
governing
body
acted
inappropriately in some fashion, such facts can only be
established through discovery.
The Plaintiff believes that the Complaint for Declaratory
Judgment is sufficiently specific to enable the Defendants to
prepare a defense and proceed to discovery without amendment of
SAIDIS, GUIDO,
SHUFF &
MASLAND
26 w. High Stm:l
ClUlislc,l)A
the Complaint.
III. DEMURRER
Paragraphs 15 through 23 of Defendants' Preliminary
Objections assert that Plaintiff's Complaint doe snot set forth
a proper cause of action under the Declaratory Judgment act. In
response, the Plaintiff directs this Court's attention to the
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Appellate Court decisions in the matter of Harwick v. Board of
Suoervisors of Uoper Saucon, 663 A.2d 878 (pa. Cmwlth. 1995); in
re: Aooeal of Mark-Garner Associates, 50 Pa. Cmwlth. 354, 413
A.2d 1142 (1980).
The matter of York-Green Associates v. Board of Suoervisors
of South Hanover Township, 486 A.2d 56l (pa. Cmwlth. 1985) is on
point with the instant matter. In York-Green, the dispute also
involved application of Section 508 (4) of the Municipalities
Planning Code to a Subdivision which was not completed within the
five years of preliminary plan approval. The Court stated in
pertinent part:
The purpose of the act (Declaratory Judgment Act, 42 Pa. CSA
S7531-7541 is "to settle and afford relief from uncertainty
and insecurity with respect to rights, status and other
legal relations", and it is to be "liberally construed and
administered." York-Green, Supra. p. 564.
Upon the above Appellate authority, it seems clear that the
underlying dispute is properly brought as an action for
Declaratory Judgment.
Finally, Plaintiff's demurrer raises allegations regarding
SAIDIS, GUIDO,
SHUFF &
MASLAND
26 W, UiBh Street
Carlisle. PA
Plaintiff's references to sewage permits. The app: oval or denial
of sewage permit applications is not an issue herein. No
application has ever been filed. Plaintiff's reference to such
permits in their letter of December 4, 1995 and in the instant
complaint only pertain to how they became aware of the
Defendants' intention to transfer lots. This is unrelated to the
cause of action set forth in Plaintiff's Complaint for
Declaratory Judgment.
It is not a matter that is before this
Court in any manner or form.
71
SAlOIS, GUIDO,
SHUFF &
MASLAND
26 W. Uiah 511ft1
Cnrlidc. VA
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IV. SUMMARY
Plaintiff believes that its Complaint for Declaratory
Judgment is proper given the underlying facts.
plaintiff
believes that the Complaint is sufficiently specific and provides
the Defendants with knowledge of the pertinent facts and provides
the Defendant with the ability to prepare an answer to the
Complaint.
The Plaintiff believes that the correspondence
attached hereto by and between counsftl is sufficient evidence to
convince this Court that the Defendants are aware of the basis
for Plaintiff's Complaint and is sufficient evidence to convince
this Court that the Defendants are able to prepare an answer and
a defense in the instant matter.
Respectfully submitted,
SAlOIS, GUIDO, SHUFF & MASLAND
Dated:
ql'J~fq{p
Misl1tsky,
26 West High Street
Carlisle, PA 17013
(717) 243-6222
Solicitor for South Middleton
Township
ire
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J L~9]Y:::i~;:
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LAW OFFICES
FLOWER, KRAMER, MORGENTHAL & FLOWER
11 EAST HIGH STREET
CARLISLE, PENNSYLVANIA 17013-3016
JAMIlS 0, I'LOWUR
ROOER M, MOROIllmIAL
J^MIlS 0, I'LOWUR, JR.
CAROLJ. UNOSAY
(717) 143-5513
F^X: (717) 14J.6SIO
nunsell" MOROIllmIAI_
(1975-1985)
JOSEPH L KRAMER
( 1935-1977)
WII.LIAM A. KRAMIlR
(1885.I9.J4)
September 16, 1992
,
Edward W. Harker, Esq.
1 West High Street
Carlisle, PA 17013
RE: Yorkfield Development. S. Middleton Township
Dear Ed:
Dnn Diehl ".ked me " 'lucstinn about the above referenced development, which is
located on Route 174 East of the interseclion with Route 34. The Plan was approved as a
Preliminary on February 18, 1988,
The Plan, to my recollection, does !!.Q!.require any improvements and a plan note
provides that the individual lot owner is responsible for implementing the erosion and
sedimentation control measures for the lots, The property is currently being farmed, and
they want to keep farming it indefinitely and do not foresee selling lots in the near future.
Final Plan approval was received in July or August, 1988, and there is no phasing involved
in the project. '
QlJn's qoestinn ~nnr=5 the effeclthat the expiration of the 5-year protected period
would have on this project. As I read Section 508 of the Municipalities Planning Code,
Subsection (Ii), the project could be at risk after five years, jf there an ordinance change,
~,
even though there is nothinjpeTt to be done at the site except to sell the lots and get the
sewer permits, etc,
I would appreciate your thoughts on this so that I can give Don a reply. Unless you
feel absolutely certain that he would have nothing to worry about after five years, and would
recommend to the Supervisors that such assurances could be put in writing, I think I'll
suggest that he contact the Supervisors and ask to be on the Agenda at some point to
discuss this.
Exhibit "A"
81
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Edward W. Harker, Esq.
.2.
September 16, 1992
I appreciate your assistance. We have been looking at this small provision of the
MPC so closely lately that I'm starting to lose perspective on it, and I need a second
opinion.
Best regards.
Very truly yours,
,
FLOWER, KRAMER, MORGENTIIAL & FLOWER
By: ~
Roger M, Morgenthal
RMM/jh
82.
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EDWARD' W. HARKER
ATTORNEV AT LAW
PHONE 243-1083
f'*'\
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December 1, 1992
FARMERS TRUST BUILDING
ONE WEST HIGH STREET
CARLISLE, PENNA. 17013
Roger M.' Morgenthal, Esquire
FLOWER KRAMER MORGENTHAL & FLOWER
II East High Street
Carlisle, PA l70l3
DAIL V 8:30 ' 4:30
EVENING HOURS
BY APPOINTMENT
RE: Donald Diehl - Yorkfield Development
Dear Roger: '
On September l6, 1992, you inquired as to my interpretation
.of MPC Section 508 as it relates to the above Preliminary Plan.
This matter was taken under advisement pending action on other
plans as well as my own desire to gain insight into the Developers'
intentions. I note that Mr. Diehl has not put this question on the
agenda or discussed it formally with the Supervisors to date.
The Supervisors have insisted on strict compliance with time
deadlines, the intention being that older plans are considerwo.
abandoned necessitating resubmittal and reapprova1 under the
provisions of later Ordinances. Unless the Board adopts a more
liberal attitude toward development, it is my belief that the
Yorkfield preliminary approval expires at the end of the 5-year
protection period established by MPC Section 508 and Section 303
of the Subdivision and Land Development Ordinance, adopted February
3, 1983. (Commonly known as the "Old Ordinance"). Consideration
must also be given to conditions of approval and potential revisions
which may be required in the final plan. Either of these factors
might necessitate resubmittal independently.
During my tenure as Solicitor, I have made Developers tow the
line by maintaining a strict and conservative approach to the
interpretation and application of pertinent regulations. This fact
is generally acknowledged and I take considerable satisfaction from
the knowledge that certain Developers and their allies favor a change
in the Solicitor's position. Bearing this in mind, it is conceivable
that Developers like Mr. Diehl would fare better by delaying
submissions until such time as the Board of Supervisors acts on its
selection of Solicitor for the upcoming year.
Sincerely,
~c...,cl. l>J, \-\~~u
'Ifl?>
Edward W. Harker
EWH:mb
cc: Rex D. Manweiler
Mary Lehman
James Baker
H.E. Mortimore
Terry Rickert
83
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EDWARD' W. HARKER
ATTORNEY AT LAW
PHONE 2.3.1083
,....,
.
FARMERS TRUST BUILDING
ONE WEST HIGH STREET
CARLISLE. PENNA. 17013
December 9, 1992
DAILY 8:30 ' .:30
EVENING HOURS
BY APPOINTMENT
Ivo V. Otto, III, Esquire
MARTSON, DEARDORFF, WILLIAMS & OTTO
_ Ten East High Street
Carlisle, PA l70l3
RE: Yo~kfield/Dieh1
Dear Ivo:
It was more than helpful for Roger to provide you with copies
of my correspondence to him. Had I known you were directly
involved in the matter, I would certainly have provided you with
one myself.
You are correct that my comments were based on the assumption
that Yorkfield was a preliminary plan and that is how I read Mr.
Morgenthal's initial letter to me. Still, since I was not familiar
with the facts, I made my response sufficiently general to allow
for flexibility based on further study once the matter was formally
presented to the Board of Supervisors.
At this point, I have yet to undertake a comprehensive study
of the matter and can only say that the mere fact that Mr. Diehl's
plan was finally approved does not in and of itself alter my initial
opinion. You are absolutely correct that MPC Section SOB refers to
substantial completion. Unfortunately, that Section is silent as
to what happens when there are no required improvements. Further,
I have yet to find any Appellate Court authority on the matter.
~
Based on the foregoing, I am reluctant to anticipate what if
any action the Board of Supervisors might take given the
circumstances in this matter. In any case, I would not render an
advisory opinion unless I was asked to do so by the Board and given
an opportunity to fully review the facts. Therefore, as a
precautionary measure, I must assume that the Board will retain
a generally strict view on the subject of the 5-year protection
period. Thank you.
Edward W. Harker
EWH:mb
cc: South Middleton Township, Board of Supervisors
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II P"Ofl~\lONAL CO~kATlON
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,
lr&~'-l :?;~.,
WlWAM F. MAIlTSON
DANIEL K, DEAIlDOIlFF
THOw.'J. WIUIAM'
lva V. OTTO, m
STEPHEN L. BLOOM
CEOIlCE B. FAUEIl,JIl.
SCOTT A. FIlEEIAND
- BRADLEY J, VANCE
ATTORNEYS AND COUNSELLOIU AT v.w
TEN EMT HIGH STREH
CARLISLE, PENNSYLVANIA 17013
nUPHONL
17171243'3341
FACSIMIU
17171 243.1850
December 4, 1992
,
Edward W. Harker, Esquire
One West High Street
Room 202
Carlisle, PA 17013
RB: Donald Diehl - Yorkfield Development
Our File No, 5135.6
.
Dear Ed:
Don Diehl has shared with me your letter of December I, 1992, to Roger Morgenlhal
in respect of the above matter,
Your letter appears to be premised on the above referenced plan being a preliminary plan
and we agree that if such would be the case, any final approval sought under the prior ordinancc
would have to be secured within five years of thc preliminary approval date.
,
However, the above plan was finally approved in July of 1988 by the SupelVisors of
South Middleton Township and was recorded on Juiy 25, 1988 in regard to which I cnclose a
copy of the cover sheet of the plan as recorded.
As you know, Section 4(iv) of Section 508 of the Municipalities Planning Codc providcs
that where a landowner has substantially completed any required improvemcnts on a final plan
within five years of the preliminary approval, no changc of any ordinance enacted subsequenl
to the date of filing of thc preliminary plan shall modify or revoke any aspect of the approved
final plan pertaining to zoning classification or density, 101, building, street or utilily location.
We believe that this section of the MPC controls in this situation and would respectfully submit
that no required improvements were shown on such plan and, therefore, whatever required
improvements depicted have, in fact, been completed. It further occurs to us that the mere
failure of a developer to sell lots jn a finally approved plan would not bar thc devclopment of
those lots in the future, Would it be othcrwise, it would seem 10 us that many awkward
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Edward W. Harker, Esquire
December 4, 1992
Page 2
questions of Interpretation in administration would arise where a developer has sold lots, but
such lot owners have not caused any construction to be commenced. One wonders whether such
lots as have been sold but not developed would be protected under a prior ordinance, but lots
not yet sold or developed would not be.
,
We would appreciate your reconsideration of this matter in light of the Infonnation
provided in this letter and would be happy to discuss it with you at your convenience. In any
event, upon your having an opportunity to reconsider this matter, we will request that the same
be the subject of a ruling by the .Township Supervisors, We will, of course, follow up with
fonnally placing the matter on the agenda at the appropriate time, but we wished you to have
an opportunity to consider the matter further before doing so.
Very truly yours,
M~TSON, DEARDORFF, WILUAMS & OlTO
IVO~
IVO/las
Enclosure
cc:
Mr. Donald B, Diehl
Mr. Raymond B. Diehl
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\YIILLIAM f MAMonON
DANIEL K. DEARDOR.Ff
ntOMAS J. WILLlAM~
IYO V. ono, III
STEPHEN L. BLOO'"
C'OkC' B. F^U.Ek,)k.
SCOtT ^ FkEEU\ND
. BMDLEY 1. VANC[
A1TOIlNEYS ^ND COUNSELLOIlS ^T ~w
HN EMT IIIclI STREET
C\llllSlE, PENNSYLV^NIA 17013
TlllPUO....t
(711) 243'3341
fACSIMILE
(717)243-1850
January 19, 1993
,
Richard p, Mislitsky, Esquire
HEPFORD, SWARTZ, MENAKER & MORGAN
III North Front Street
P,O, Box 889
Harrisburg, PA 17108-0889
RE: Yorkfield/DiehllSouth Middleton Township
Our File No, 5135,6
Dear Rich:
Following up on our telephone conversation of January 13, you had posed a question with
regard to what effect a resubmission of the above plan would have, if any, with respect to the
configuration of the plan,
~
As you are probably aware, since this plan was approved the South Middleton Township
Zoning Ordinance has changed in several respects, principally that lot ~izes in the district in
question as well as minimum road front.1ge requirements have increased,
o
Accordingly, without going into great detail or commissioning an cngincering study of
this matter, we fcel it quite safe to say that the number of lots in this subdivision would, under
the current Zoning and Subdivision Ordinance, be reduced as a result both of the increase in the
road frontage required as wcll as the increase in the minimum lot area,
Currently, under the fmal subdivision plan which was fLIed in July of 1988, 18 lots are
approved. As we had stated in our earlier correspondence to Mr, Harker, it is our view that as
a result of the fmal approval of this plan and the recordation of this plan incident to such
approval without conditions other than as stated on the face of the plan (none of which relate to
any bondable improvements) lots can be conveyed in their current configuration subject only to
use zoning as it is currently constituted in this districl.
./1].1) tJ-:., ~-~:..' i
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Richard P. Mislltsky, Esquire
January 19, 1993
Page 2
. . I' '.
Renting and reapproval of this plan Is accordingly, in our view, unnecessary. At the risk
of being repetitive, would it be otherwise, we would be at a loss to understand whal
. mechanisms, if any, the Township would have available to enforce such a requirement of reliling
and reapproval if any lots had been sold 10 ultimale users with the nve year period expiring prior
to any construction of dwelling units thereon,
Very truly yours,
M~O~~O~F.MLUAMS&OTIO
lvo V, Olto m
IVOllas
cc: Mr. Donald E. Diehl
,
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On this
CERTIFICATE OF SERVICE
"i( 1"
,? r, day of July, 1996, I, Tracie Myers, of the law
firm SAlOIS, GUIDO, SHUFF & MASLAND, hereby certify that I served
a true and correct copy of the attached Plaintiff's Brief in
Opposition to the Defendants I Preliminary Objections upon all
parties listed below via first class United States Mail, postage
prepaid, addressed as follows:
Ivo V. Otto, III, Esquire
Ten East High Street
Carlisle, PA 17013
Edward L. Schorpp, Esquire
36 S. Hanover St.
Carlisle, PA 17013
Da ted : t !-;X,j q (p
SAIDIS~GUIDO, SHUFF &
. I/U
By: rLtv I (
Tracie Myers
MASLAND
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.
BOARD OF SUPERVISORS OF SOUTH
MIDDLETON TOWNSHIP.
CUMBERLAND COUNTY.
PENNSYLVANIA.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO, 96-514 CIVIL TERM
RAYMOND E, DIEHL, GENEVIEVE A.
DIEHL. DONALD E, DIEHL. SUZANNE
DIEHL, HAROLD OTTO and SARA
JANE OTTO,
Defendants
IN DECLARATORY JUDGMENT
BRIEF IN SUPPORT OF DEFENDANTS' PRELIMINARY OBJECTIONS
1. FACTS'
On or about July 13. 1983. Defendants Raymond E, Diehl and Donald E, Diehl. father and
SOli, entered into an agreement to purchase approximately 103 acres of property in South Middleton
Township. Cumberland County, Pennsyl~ania from Defendants Harold E, and Sara Olio, On or
about October 21. 1983, a subdivision of this property was approved, This subdivision plan, referred
to as "Yorkfield 1". created lots I through 8, Thereafter. Defendant Donald E, Diehl submitted
another subdivision plan. referred to as "Y orkfield II", This second subdivision further divided lot
No.1 of the Yorkfield I plan. consisting of approximately 58,924 acres, into lots I. and 9 through
25. The Yorkfield II subdivision plan was granted final approval on July 21, 1988 and was filed
with the Recorder of Deeds for Cumberland County on July 26. 1988. In late December 1995.
Defendants Harold and Sara Otto transferred legal title to the Y orkfield II lots to Defendants
Raymond and Donald Diehl. Raymond and Donald Diehl then conveyed these lots among
themselves and their wives, Defendants Genevieve and Suzanne Diehl.
Thereafter, on or about January 30. 1995, Plaintiff initiated the present proceeding by filing
a Complaint for Declaratory Judgment. The Complaint seeks to have this Honorable Court void the
above referred conveyances. striking them from the books of the Recorder of Deeds, order that
Defendants not make any conveyances of their Y orkfield II property until a new subdivision plan
is submitted, and declaration that existing zoning, subdivision and or other unidentified ordinances
are applicable to Yorkfield II, On February 20. 1996. Defendants collectively filed Preliminary
Objections to the Complaint in the nature of a motion to strike. request for more specific pleading
,
--
.
and a demurrer. Plaintiff filed an Answer to Defendants Preliminary Objections on March 8, 1996,
Defendants' Preliminary Objections are now before this Honorable Court for disposition,
II. STATEMENT OF ISStJES PRESENTED'
A. Whether Plaintilrs Declaratory Complaint should be dismissed for failing to state
a cause ofaction under the Declaratory Judgment Act?
B, Whether Plaintiff should be ordered to tile a more specific pleading with regard to
several overly broad and vague averments and. if unable to provide a more specific pleading.
whether such averments should be stricken?
ill. ARGtJMENT'
A. PLAINTIFF'S DECLARATORY JUDGMENT COMPLAINT SHOULD BE
DISMISSED AS PLAINTIFF HAS FAILED TO STATE A CAUSE OF ACTION UNDER
THE PENNSYLVANIA DECLARATORY JUDGMENT ACT.
In ruling on preliminary objections. all well pleaded facts, as well as inferences which are
fairly deductible therefrom are deemed admitted, Wicks v Milzoco Builders Inc" 503 Pa, 614. 623.
470 A,2d 86, 91 (1983), Conclusions of law are not admissible, Mudd v Hoffinan Homes for
Youth Inc, 374 Pa, Super, 522, 543 A,2d 1092, Nevertheless, the Complaint must also aver
sufficient material facts to enable the court to determine if there is a valid and complete cause of
action, BrandenbaUllh v Shadle. 29 Cumb, 144. 145 (1979)(1. Sheely), A demurer should be
sustained only where the plaintiff has failed. to state a claim upon which relief may be granted, MI11l
v Kerstetter, 373 Pa. Super, 228, 229-230, 540 A,2d 951 (1988), In the present case. a thorough
examination of each and every averment of the Complaint, and all reasonable inferences therefrom,
reveals that Plaintiff has failed to set forth a claim for declaratory relief under 42 Pa, C, S. 7531.1:1
,Wi, Therefore. Plaintilrs Complaint should be stricken, Smith v Brown, 283 Pa.Super, 116,423
A.2d 743 (1980); Oliveri v Oliveri, 242 Pa, Super. 457, 364 A,2d 361(1976).
A Declaratory Judgment action is not obtainable as of right, but is within the sound
discretion of the trial court to entertain, Robert H Clark Inc V Township of Hamilton, 128 Pa,
Cmwlth, 31. 562 A.2d 965 (1989); Falls Tw:p V McManamon. 113 Pa, Cmwlth, 504. 537 A.2d 946
(1988). A trial court should not exercise jurisdiction over a declaratory judgment proceeding unless
it is convinced that all the requirements of the Declaratory Judgment Act and the decisions of the
Supreme Court have been met. Kc:ystone Ins Co V Warehouse EQuipment Cot:P , 402 Pa. 318. 165
--
.
A,2d 608 (1961), Although the Declarat,ory Judgment Act is broad, it is not without limitations,
Cloonan v Thombu(ll. 103 Pa, Cmwlth, 1.519 A.2d 1040 (1986), appeal dismiss-d sub nom, To
this end. it has been held that a court should not render an advisory opinion or entertain cases in
anticipation of events that may occur, Boyle v Comm Dept OfTransp.. 151 Pa, Cmwlth, 430. 617
A,2d 70 (1992), Furthennore. a declaratory action is available only where an actual controversy
exists, is imminent, or inevitable, ld, Likewise. it has been held that a declaratory action may not
be used to seek out a new legal doctrine. Doe v Johns-Manville COll'. 324 Pa. Super. 469,471
A.2d 1252 (1984); Cloonan.~,
Applying this law to the instant Complaint, it is clear that Plaintiff has failed to state a cause
ofaction under the Declaratory Judgment Act. Simply stated, there is no actual controversy, An
examination of the avennents of the Complaint, including all reasonable inferences therefrom clearly
illustrates this fatal defect. Plaintiff alleges that Defendants Harold and Sara Otto were legal
owners of the property comprising Y orkfield 11 and that Defendant Donald E, Diehl had equitable
title to the property, Complaint at Paragraphs 2(d) and 5, Plaintiff further alleges that it granted
final approval ofYorkfield 11 on July 21, 1988 and that the plan was recorded on July 26. 1988,
Complaint at paragraphs 6, 7, This plan divided lot No, I of a prior plan into lots numbered I and
9 through 25, Complaint at Paragraph 8, Subsequently, in December 1995, the Defendants made
several conveyance of these lots, Complaint at Paragraphs 17 through 19. Under these facts, as
alleged by Plaintiff, Defendants merely conveyed their own property, As the owners of this
property the Defendants were free to proceed with these conveyances. Plaintiff has failed to
establish the existence of an imminent dispute and Defendants should not be forced into expending
the time. aggravation. and cost of litigation where there is no true controversy,
Nevertheless. in an apparent attempt to manufacture a controversy. Plaintiff simply alleges
that these conveyances were in violation of the Subdivision and Land Development Ordinance of
South Middleton Township (Ordinance No, 12 of 1990. as amended) and the Municipalities
Planning Code (MPC), I Complaint at Paragraph 20, An examination of these allegations quickly
unveils them to be without merit. Although Plaintiff fails to cite to any specific section of the
Ordinance. Defendants' own review of this Ordinance revealed no provision which would prohibit
'l'f
1 Plaintiff has apparently conceded that the denial of a sewer pennit, with no appeal
therefrom. is not an issue in this proceeding, Answer to Preliminary Objections at 10,
,
--
.
thc complaincd of conveyances, As such. it is rcspcctfully submitted that the Ordinancc does not
prohibit such conveyances and Plaintift's reliance on such for thc basis of this action is completely
unfounded,
Moreover, Plaintiffs citation to MPC ~ 508(4)(ii) (53 P,S, ~ 10508(4)(ii)) for the proposition
that these conveyances violated the MPC is an equally meritless attempt to manufacture a
controversy. See. Complaint at Paragraph ~~ 11.20, Plaintiff apparently suggests that this section
of the MPC has made the Yorkfield II Plan "void by operation of law," See. Exhibit "B" to
Complaint. This extinguishment theory is equally unfounded and contrary to well established
Penns>:lvania law, Section 508(4)(ii) states as follows:
When an application for approval of a plat, whether preliminary or linal. has
been approved without conditions or approved by the applicant's acceptance of
conditions. no subsequent change or amendment in the zoning, subdivision or other
governing ordinance or plan shall be applied to affect adversely the right of the
applicant to commence and to complete any aspect of the approved development in
accordance with the tenns of such approval within live years from such approval.
Generally, under the MPC ~ 508(4)(ii) a landowner may. within a 5 year period of plan approval,
make improvements depicted on the plan in cOnfonnity with the requirements of the Zoning
Ordinance in effect when the plan was approved, An examination of this section. however, reveals
no provision directing. pennitting or effecting an extinguishment of either lots or subdivision plans
upon the end of this grace period, Surely if the legislature had intended such an extreme and
draconian measure, it would be set fonh with great panicularity, Funher, Plaintift's proposed
extinguishment theory is contrary to the extensive judicial interpretations of the MPC,
Although there are many cases involving the interpretation of ~ 508(4), research reveals no
case supponing Plaintift's novel extinguishment theory, To the contrary, this case law undennines
Plaintift's argument and illustrates that this matter should be summarily rejected, The case law
interpreting MPC ~ 508(4) clearly establishes that, upon expiration of the 5 year grace period, lots
and their subdivisions do not become void, but that the landowner must, if he seeks to funher
develop, seek a variance in order to obtain a building pennit. Minnick v Zoninl! Hearing Board
Town of McCan dies. 71 Pa, Cmwlth, 333, 455 A.2d 243 (1983),
In Minnick. the landowner, Frey. obtained subdivision approval in 1964 for "Greybrooke."
a subdivision which divided a tract into several building lots, one of which was triangular, In 1976
Frey obtained a building pennit for the triangular lot over the opposition from adjacent landowners
t!.5- .
~
.
who felt that the proposed development lot did not meet the rear yard requirements of the new
zoning ordinance, Upon receipt of the building permit. Frey proceeded to and completed the
construction of a house. despite the pending appeal by the neighbors, On this appeal. the court held
that the lot did not meet the back yard requirements of the new ordinance, Frey then sought a
variance, which was granted by the Zoning Hearing Board, This decision was then appealed to the
Court of Common Pleas of Allegheny County which reversed the Zoning Hearing Board, Frey
appealed this decision to the Commonwealth Court, In reversing the Common Pleas Court. the
Commonwealth Court described the law in Pennsylvania as to the effect of new zoning ordinances
on previously approved subdivisions and their lots, In this regard. the Court stated:
Prior to the Pennsylvania Municipalities Planning Code (MPe). which was
enacted in 1968. an undeveloped lot in an approved subdivision was not immune
from changes in zoning requirements, However. under pre-MPC law. if a zoning
change inflicted an undue hardship on an undeveloped lot in an approved
subdivision. the subdivider-owner could seek to establish his right to a variance or
other relief from the new zoning requirement.
With the advent of Section 508(4) of the MPC, undeveloped lots in an
approved subdivision were given a three-year immunity from zoning changes, After
the lapse of that three-year period. the subdivider-owner of such a lot would be in the
same position as one who never had the protection of Section 508(4), As to a
subdivider-owner in that position. we have held that the remedy is to seek a variance,
Minnick, 455 A.2d at 249-250, (citations omitted)
Applying this law to the situation presented in Minnick, the Court concluded:
[O]ur decisions under Section 508(4) are relevant to the instant case. in that they
define the rights of a subdivider-owner who has no statutory immunity from
intervening zoning changes, Having held that such an owner has a right to apply for
a variance. we have enunciated in clear terms the principle implied by the
PeMsylvania Supreme Court's opinion in York Township Zoning Roard of
Adiustment v Rrown, Since the subdivider-owner of an undeveloped lot in an
approved subdivision has the right to apply for a variance from a post-subdivision
zoning change, then it must follow that the right to receive a variance in such
circumstances is not defeated by the fact that the applicant created the subdivision,
Otherwise. it would be meaningless to say that the subdivider-owner has a right to
seek a variance, , , ,
Minnick, 455 A,2d at 250,
'16
---
.
Obviously, if the ruMing of the grace period under MPC ~S08(4) effected an
extinguishment. the owners of undeveloped lots would not have a right to seek a variance. What
Minnick and other cases interpreting S08( 4) illustrate. and what Plaintiff chooses to ignore. is that
the expiration of the grace period does not affect the existence of the lots but merely restricts the
owners thereof to current zoning use requirements, See also, York Township Zoninll Board of
Adiustment v Bmwn. 407 Pa, 649 (1962); Appeal of Central Penn Nat Bank. 408 A.2d SSO (1979)
( After grace period landowner-builder has right to seek variance.) Therefore. the case law
interpreting ~S08(4) demonstrates that Plaintill's theory is without merit and should be rejected,
In sum, the Defendants have simply conveyed their lots in an approved and filed subdivision
plan, As the owners of these tracts. Defendants were clearly entitled to do this, Despite Plaintill's
argument to the contrary. there is simply no statutory or case law that would prohibit such
conveyances, As such. there is absolutely no controversy at this time, nor is one imminent or
inevitable as required under the Declaratory Judgment Act. Clark v Township of Hamilton, 128
Po. Cmwlth, 31, S62 A.2d 96S (1989), What Plaintiff seeks to do by this action should properly be
addressed at a request for a variance. if one is ever made, At this time. however. the issue is purely
academic, and as sllch must be dismissed, ld, In short. Plaintiff has failed to established either that
it has stated a cause of action and/or that there exists a controversy that is imminent or inevitable,
Therefore, this Honorable Court should grant Defendants' Preliminary Objections and dismiss
Plaintill's Complaint.
B. THE PLAINTIFF SHOULD 'BE ORDERED TO FILE A MORE SPECIFIC
PLEADING WITH REGARD TO NUMEROUS BROAD AND VAGUE AVERMENTS AND,
IF UNABLE TO DO SO, SUCH AVERMENTS SHOULD BE STRICKEN.
Pennsylvania Rule of Civil Procedure 1019(a) requires that all material facts must be stated
in a concise and summary fonn, Additionally. Pa. R,C,P, Rule 1028(a)(3) pennits a defendant to
object to a complaint that lacks sufficient specificity, The purpose of these fact pleading rules is to
require a plaintiff to disclose in the complaint the specific conduct upon which the plaintill's cause
of action is based, thus confining the plaint ill's proof to such alleged conduct and enabling the
defendant to reasonably prepare their defense, Baker v Ranyos. 229 Pa. Super, 333, 324 A,2d 498
(1974); Penn DOT v Shipley-Humble Oil Company, 29 Pa, Commw. Ct. 171,370 A.2d 438
(1977); Robert T Dunn v Eclipse lId. 43 Cumbo 320 (I 994)(J. Oler).
el7
~
--
In I2wlIl this Coun outlined the issues which a coun should consider in ruling on preliminary
objections based upon specificity:
In this regard, where a preliminary objection has been filed challenging the
sufficiency ofa pleading, "[t]he question to be decided. . , is whether [the] pleading
is sufficiently clear to enable an opposing pany to prepare a response, or whether
[the] pleading informs an opponent with accuracy and completeness of the specific
basis on which recovery is sought so that he or she may know without question what
grounds to make his or her response, Moreover, in considering this question. a coun
must keep in mind the principle that, "[n]ot only must pleadings put an opponent on
notice of what he or she will be called'upon to meet at trial. they must also form the
issues in an action so that the proof at trial may be restricted to those issues,
1lw1n. 43 Cumb, at 324, (citations omitted,)
Based these pleading requirements. Pennsylvania couns have routinely stricken overly broad
and general averments. ld, Although Rule 10 19(a) objections most often arise in cases of
negligence, the pleading rules of civil procedure are equally applicable to Declaratory Judgment
Actions, ~. GOODRICH AMRAM 2,d ~1019:1 (General pleading principles apply to all
proceedings); ~lllas1, Zinc COQ) of America v Department of Environmental Resources. 145 Pa,
Commw, 363. 603 A2d 288 (1992); .Qark. 128 Pa, Cmwlth. at 38,562 A,2d at 968. note 6, (Broad
averment that ordinances "interfere" with or make operation "impossible" is insufficient pleading
under 1019(a)),
Applying these pleading principles to the present case, it is clear numerous averments in
Plaintiff's Complaint are overly broad. vague and fail to meet the pleading requirements of Rule
1019(a), Specifically. Defendants have objected to paragraphs 9, 10,20, and 21 for this reason.
Paragraph 9 of the Complaint states as follows:
(9) Prior to December 29, 1995. no lots had been conveyed from "Vorkfield II" nor had
any "substantial improvements" been made on the site,
Defendants' objection to this paragraph is based upon Plaintiff's use of the term "substantial
improvement." Defendants have no way of determining what is being alleged by this general
averment. Moreover, Plaintiff. by enclosil18 the term with quotations has indicated some special or
esoteric meaning to the term and the Defendants should not be forced to speculate as to what that
meaning is, Accordingly, Paragraph 9 fails to provide sufficient specificity in order for Defendants
to respond or prepare a defense and/or fails to define the issues for trial and should be stricken,
Likewise. Defendants have objected to Paragraph 10, which states:
~
--
(10) Subsequent to the approval of"Y orkfield II" in July of 1988. there have been several
changes and/or amendments in the zoning. subdivision and/or other ordinances of
South Middleton Township with which "Yorkfield II" does not comply.
This averment also clearly violates Pa, R,C. p, 1019(a), The Plaintiff alleges that Yorkfield II does
not comply with some changes and/or amendments of zoning or other ordinances of South
Middleton Township, This allegation does little to inform Defendants of what ordinances. zoning
or otherwise, that their lots are not in confqrmity with and, therefore, Defendants cannot adequately
prepare a defense or response to this averment and it should be stricken, ~. Qw:k, ~, (General
averment that Ordinance prohibits action is insufficient specificity),
Defendants also object to Paragraph 20, which reads as follows:
(20) All of the above conveyances were made in violation of the Subdivision and Land
Development Ordinance of South Middleton Township. Cumberland County.
Pennsylvania (Ordinance No, 12 of 1990, as amended) and the Pennsylvania
Municipalities Planning Code (53 P,S. ~10501 et seq),
Defendants' reasons for their objection to this paragraph is similar to those cited above with regard
to Paragraph 10, Here again. Plaintiff has failed to delineate any provision of the Ordinance that
these conveyances were in violation of. The Ordinance contains over liS pages, with sections
touching upon many areas, If Plaintiff feels that Defendants' conveyances violated a section or
sections of this Ordinance, it should be required to plead this with sufficient specificity so to provide
Defendants with notice and so as will permit them to respond and prepare a defense, This is also
true ofPlaintifl's reference to the MPC. Defendants deserve, and through Pa, R.C,P. 10 19 (a). have
the right to know what section of the Ordinance and MPC allegedly prohibited the conveyances of
their lots.
Finally, Defendants have objected to paragraph 21 of the Complaint. This paragraph is as
follows:
(21) All of the aforesaid conveyances set forth in paragraphs 17 and 18 were made
AFTER Defendants were specifically advised and had actual notice that the
Y orkfield II Subdivision approval had expired and that Plaintiff had rescinded
Subdivision approval.
Defendants' objection to this paragraph is based upon the fact that the averment fails to
provide Defendants with the authority under which the Y orkfield II lots supposedly expired and, as
such. Defendants cannot adequately respond to this allegation nor can they adequately prepare a
~
~
dcfense, PCMsylvania plcading standards rcquirc that a plaintiff infonn an opponcnt with accuracy
and complctcncss of thc spccific basis on which rccovcry is sought, This avcnncnt. is broad and
severely fails in this rcspcct, Thereforc. Plaintiff should be rcquired to file a morc spccific pleading
or. in the altcrnative. the paragraph should be stricken,
CONCLUSION.
Based upon thc above. Defcndants respectfully request that this Honorablc Coun grant
Dcfendants' Preliminary Objections,
~T~RFF. wauMffi & OTTO
Ivo V. Olto. III, Esquire
W. Darren Powell. Esquire
Ten East High Street
Carlisle. PA 170\3.3093
(717) 243-3341
Counsel for Defendants
LANDIS. BLACK & SCHORPP
BV~~~
Edward L, Schorpp. squirc
36 South Hanover Street
Carlisle. PA 17013
(717) 243-3727
Co-Counsel for Defendants
Datc: August 2, 1996
/00
~
~
CERTIFICATE OF SERVICE
I hereby certii)' that a copy of the foregoing Brief in Support of Defendant's Preliminary
Objections was served this date by depositing same in the Post Office at Carlisle, P A. first class
mail. postage prepaid, addressed as follows:
Richard p, Mislitsky, Esquire
SAlOIS. GUIDO, SHUFF & MASLAND
26 West High Street
P.O, Box 560
Carlisle. PA 17013
MARTSON. DEARDORFF. WILLIAMS & OlTO
~
By
I vo V, Olto. III, Esquire
W. Darren Powell. Esquire
Ten East High Street
Carlisle. P A 17013
(717) 243-3341
Attorneys for Defendants
Dated: August 2, 1996
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BOARD OF SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY,
PENNSYLVANIA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-514 CIVIL TERM
v.
RAYMOND E. DIEHL,
GENEVIEVE A. DIEHL, DONALD
E. DIEHL, SUZANNE DIEHL,
HAROLD OTTO and SARA JANE
OTTO,
CIVIL ACTION: DECLARATORY
JUDGMENT
Defendants
REPLY BRIEF OF THE PLAINTIFF IN
OPPOSITION TO PRELIMINARY OBJECTIONS
I. INTRODUCTION
A conflict between the briefing deadlines in this matter and
trial in another county, forced the Plaintiff to file its Brief
in Opposition to Preliminary Objections prior to the filing of
the Defendants' (moving party) Brief.
After review of the
Defendants' Brief, a response is required.
Plaintiff will
address the arguments raised by the Defendants' Brief. Plaintiff
incorporates herein its answer to Preliminary Objections and its
original Brief in this matter.
II. DOES PLAINTIFF'S COMPLAINT FAIL TO STATE A CAUSE OF ACTION
UNDER THE DECLARATORY JUDGMENT ACT?
SAID IS, GUIDO,
SHUFF &
MASLAND
26 W. IlIlh 5'"",.
Carlisle,PA
Defendants' claim that the Complaint fails to state a cause
of action under the Declaratory Judgment Act. Defendants claim
that "there is no actual controversy."
Defendants' contention is easily refuted. Plaintiff again
points to the correspondence from the Defendants PRIOR to the
filing of the instant action and to the Defendants' actions AFTER
/03
~
.
being notified that they would have to submit a Subdivision Plan
which complies with the Township's new Ordinances.
Defendants claim that the Plaintiff is ".. .attempting to
manufacture a controversy", and that no provision of the
Township's Ordinances were violated when the Defendants attempted
to convey lots. Defendants' contention is without substance.
I
THE DEFENDANTS CONVEYED LOTS WHICH OID NOT EXIST. This is in
violation of local Ordinances. This is in violation of the MPC,
and well established, uncontrovertible case law.
It is
respectfully asserted that no legal authority is necessary to
support this proposition.
The question of whether this matter is proper under the
Oeclaratory Judgment Act is easily answered by reference to the
Commonwealth Court's decision in York-Green Associates v. Board
of Supervisors of South Hanover, 486 A.2d 561 (pa. Cmwlth. 1985).
The York-Green case presented the same question raised in
the instant matter, that is, the effect of S508 (4) of the
Municipalities Planning Code on a Subdivision Plan approved
prior to changes in the Municipality's Ordinances. In the York-
Green matter, the Commonwealth Court invited an action under the
SAlOIS, GUIDO,
SHUFF &
MASLAND
26 W, Iligh SIr<c1
Carll.Ie,PA
Declaratory Judgment Act. The Court stated:
"The purpose of the act is to settle and to afford relief
from uncertainty and insecurity with respect to rights,
status, and other legal relations, and it is to be liberally
construed and administered. 42 Pa. C.S.S. S7541."
Based on the above, there should be no doubt that the
instant matter does, in fact, does state a proper cause of action
under the Declaratory Judgment Act.
/Olf
~
--
Defendants' argument contains reference to the Commonwealth
Court's Opinion in Minnick v. Zonina Hearina Board of McCand1es,
71 Pa. Cmwlth. 333, 455 A.2d 243 (1983). The Minnick opinion is
not relevant in this dispute.
The Defendants cite Minnick to support the proposition that
in this matter all the Defendants need do is request a variance
and that since no variance was requested, no actual controversy
exists. Defendants own araument illustrates the reasons behind
this action for Declaratorv Judament.
Defendants must concede that, at the very least, the lots
they attempted to convey do llQt comply with the lot size and road
frontage requirements of the 1989 Zoning Ordinance. Instead of
requesting a variance from the Zoning requirements (and a waiver
of the Subdivision regulations), the Defendants defiantly and
somewhat surreptitiously conveyed lots among themselves without
seekina a variance or waivers. THIS IS AN EXCELLENT ILLUSTRATION
OF WHY A DECLARATORY JUDGMENT ACTION WAS FILED AND WHY THIS
ACTION IS PROPERLY BEFORE THIS HONORABLE COURT.
In addition to the above, the Plaintiff must also point out
that the Defendants' reference to Minnick is completely
misplaced.
In Minnick, lots in the Subdivision were sold and
SAIDIS, GUIDO,
SHUFF &
MAS LAND
26 W.lligh SIr<<.
Culisle. PA
homes were already built prior to the Court's decision. The only
issue was a Zoning Ordinance question concerning the size of the
rear yard on a lot already developed by construction of a home
and sold to a third party. There were no issues regarding the
Subdivision Ordinance in that case. In the instant matter, there
are violations of the subdivision Ordinance, including but not
/OS-
SAID IS, GUIDO,
SHUFF &
MAS LAND
26 w, /ligh Slr<C'
C4f1i5le. PA
~
--
limited to storm water management regulations and road access
regulations. If nonconformity with the Zoning Ordinance was the
only problem, then perhaps, in cases similar to Minnick, a
variance request may be the most expeditious way of resolving the
issues. However, when there are violations of the Subdivision
Ordinance, such as storm water management, the Zoning Hearing
Board is without the engineering capability or the legal
jurisdiction to consider these issues.
Hence, Defendants'
argument that they need only request a variance is incorrect in
this case.
Finally, Defendants address the matter of sewage permits in
a footnote on page 3 of their Brief.
Defendants assert that
"Plaintiff has apparently conceded that (this) is not an issue in
this proceeding." Defendants feel compelled to point out that
Defendants raised this issue in Preliminary Objections. The
Plaintiff answered by saying that the sewage permits were not at
issue. Hence, Defendants' reference to Plaintiff's "conceding"
this issue is confusing, or outright misleading. If Defendants
want to view this as a "concession", Plaintiff can overlook
Defendants' self-promoting choice of language as long as this
Honorable Court is not confused by the Defendants' statement.
III. IS A MORE SPECIFIC PLEADING REOUIRED IN THIS CASE?
The Plaintiff does not believe that an amended Complaint is
necessary.
The Pennsylvania Rules of Civil Procedure require
that the Complaint set forth sufficient facts to enable the
Defendant to prepare a defense to the Complaint.
Plaintiff
believes that the instant Complaint does, in fact, satisfy the
10.6
.,.....""...........-..-
~ ..
Rules of Civil Procedure. The Plaintiff directs this Court's
attention to the correspondence previously submitted to this
Court as attachments to the Plaintiff's Answer to Preliminary
Objections and Brief in this matter.
It is respectfully
submitted that this correspondence illustrates that the
Defendants know exactly the facts and legal issues upon which
this cause of action is based.
The Defendants call into question paragraph 9 of Plaintiff's
Complaint in that it makes reference to the phrase "substantial
improvement." It is respectfully submitted that this phrase is
taken from Section SOB of the Municipalities Planning Code.
Section 508, as previously stated, provides a developer with five
years of protection from subsequent changes in the law(s). The
MPC also states that this five year protection can be extended if
the Subdivision has been substantiallv completed.
This issue
centers on whether the Defendants have made improvements to the
subject premises. This information cannot be set forth in the
Complaint since Defendants are in the best position to set forth
SAIDIS, GUIDO,
SHUFF &
MAS LAND
26 W. High 51=1
ClU'lisle,PA
what improvements have been made. This information can only be
ascertained through the discovery process.
Defendants call into question paragraph 10 of Plaintiff's
Complaint and allege that the Plaintiff did not set forth each
and every violation of the Zoning and Subdivision Ordinance. It
is respectfully submitted that onlv one violation is necessary to
require a resubmission of the plan. Plaintiff again points to
the correspondence from the Defendants wherein they themselves
acknowledge nonconformity with the Zoning Ordinance in several
/V7
~
,.
respects.
In addition, Defendants themselves point to the
"burden" of commissioning an engineering study to determine each
and every violation. An engineering review is part and parcel of
the subdivision approval process. It is for this reason that the
Plaintiff believes that resubmission of the Subdivision Plan is
legally required and factually necessary.
Defendants call into question paragraph 20 of the
Plaintiff's Complaint in that it does not delineate any provision
of the Ordinance which was violated by the attempted lot
transfers.
An analysis of this point again illustrates the
frivolity of the Defendants' assertions. Defendants themselves
acknowledge that the lots that were transferred are not in
compliance with road frontage requirements and lot size
requirements contained in the Zoning Ordinance (see Defendants'
correspondence prior to initiation of this lawsuit). Defendants
also admit that they requested no variance prior to the transfer
of these lots. Therefore, not only did the Defendants transfer
lots which do not exist, but they also transferred lots which
were in violation of the Zoning Ordinance, as amended, by their
own admission.
SAlOIS, GUIDO,
SHUFF &
MAS LAND
26 W. HiSh 5""",
CAlIi.I., PA
Lastly, the Defendants call into question paragraph 21 of
Plaintiff's Complaint. The Defendants contend that the Plaintiff
has failed to set forth upon what authority the Yorkfield II
Subdivision approval had expired. Since Defendants' Brief does,
in fact, address Section 508(4) of the Municipalities Planning
Code and the five year protection set forth therein, it is
incomprehensible that the Defendants are not aware of the legal
lot
~
~
issue presented in this case. The Plaintiff respectfully submits
that this point need not be addressed any further.
argument on this point would be overly repetitive.
Further
IV. CONCLUSION
Plaintiff believes that this matter is properly before this
Court by way of an action for Declaratory Judgment. Plaintiff
believes that the Commonwealth Court's decision in York-Green,
supra, is on point with the instant matter.
Plaintiff further believes that no amended pleading is
required. Plaintiff believes that the Complaint standing alone,
and especially considered together with the correspondence
exchanged prior to commencement of this action, clearly indicates
that the Defendants know the basis of this lawsuit and are able
to prepare a defense to the Complaint filed by the Plaintiff.
Respectfully submitted,
SAIDIS, GUIDO, SHUFF & MASLAND
Dated~ 'l~~
ire
MJ
R1chard P. Mislitsky,
26 West High Street
Carlisle, PA 17013
(717) 243-6222
SAlOIS, GUIDO,
SHUFF &
MAS LAND
26 W. Hijh Slm:1
C",lIl1e,PA
Solicitor for South Middleton
Township, Board of Supervisors
101
ii. .
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~
....
,...
CERTIFICATE OF SERVICE
-Ih
On this ~ day of August, 1996, I, Tracie Myers, of the
law firm SAlOIS, GUIDO, SHUFF & MASLAND, hereby certify that I
served a true and correct copy of the attached Reply Brief of the
Plaintiff in Opposition to Preliminary Objections upon all parties
listed below via first class United States Mail, postage prepaid,
addressed as follows:
Ivo V. Otto, III, Esquire
Ten East High Street
Carlisle, PA l7013
Edward L. Schorpp,
36 S. Hanover St.
Carlisle, PA 17013
Esquire
Dated:
SAlOIS, GUIDO, SHUFF & MAS LAND
8".4 \.CtCU ILfg3
Tracie Myers .
110
CEIlTU'ICATE ANIl TIlANSHI1'TAI. m' IlECOllD
UNIlEIl
PENNSYI.vANIA IlUl.E OF APPELI.ATr, PIlOCEDURE 1931 lc)
To the Prothonotary of the Appellate Court to which the
within matter has been appealed:
COMMONWEALTH COURT OF PENNSYLVANIA
TilE UNDERSIGNED, Prothonotary of the Court of Common Plcas
of CUMBERLAND County, the said court being a court of record.
do hereby certify that annexed hereto is a true and correct copy
of the whole and entire record. including an opinion of the court
as required by PA R.A.P. 1925, the original papers and exhibits,
if any on file. the transcript of the proceedings, if any, and the
docket entries in the following matter:
No. 96-514 Civi1 Term: No. 2500 C.D. 1996
Board of Supervisors of South Middleton Township
Cumber1and County, Pennsylvania
vs.
Raymond E. Dieh1, Genevieve A. Diehl. Dona1d E. Diehl,
Suzanne Dieh1. Har01d Otto and Sara Jane Otto
The documents comprising the record have been numbered
from No. I to No. 111, and attached hereto as Exhibit A is a
list of the documents correspondingly numbered and identified ....ith
reasonable definiteness, including with respect to each document,
the number of pages comprising the document.
The date on which the record has been transmitted to the
appellate court is November 22~ 1996
(Seal of Court)
;;(~ t!. Ir.~
Prothonotary
An additional copy of this certificate is enclosed. Please
sign and date copy. thereby acknowledging receipt of this record.
RECORD RECEIVED:
Date:
(signature & title)
Commonweallll of !'ennsyh'ania
Counly of Cumberlnnd
} 55:
No. 2580 C. D. 1996
I. Lawrence E. Welker , I'rntbonolary
of Ihe COUll of Common Pleas in and for said
County. do herehy eerlify Ihat Ihe foregoing is a
full. true and eorrecl enpy of the whole reeord ofthe
case therein slaled, wherein
Board of Suoo,=",lsors of South
Middleton Townshin. CUmberland Co.
I'lainliff, and Rayrmnd E:. and Genevieve A.
,
I-IArnlti n~tn Anti ~ArR .1AMP- nt-tn
Defendant _, as the same remains of record
before the said Court at No. 96-5l4 of
Civil Term, A.D. 19_,
have hereunlo sel my hand and affixed the seal of said COUll
day of November A, D., 19-2E..,
,~~ ~ 'lV~boUt-
IJrnlhnnnlllry
In TESTIMONY WHEREOF, I
Ihis '1'went.v-ser.ond
I. Harold E. SheelY President Judge of the Ninth
Judicial Distriel. composed of the Counly of Cumberland. do eertify lhat Lawrence E. Welker.
Pmthonotarv . by whom the annexed record, cellineate and
altestalion were made and given, and who, in his own proper handwriting, thereunlo subscribed his name
and affixed Ihe seal of lhe Courl of Common Pleas of said County, was, al the time of so doing. and now is
Prothonolary in and for said County of C1rnberl and in
the Commonwealth of Pennsylvania.dulycommi55ioned and qualined to all of whose aetsassuch full faith
and eredil are and oughllo be given as well in COUlls of judicature as elsewhere. and thjlt the said record.
eertineale and altestation are in due form of law and a e by Ihe proper offiee ~l
- E. 1/1..(2
I'rt:\idcnl JudlEC
Commonwealth of Pennsylvania
County of Cumberland
} 55:
I. Lawrence E. Welker , I'rothonotury of the COUll of Common Pleas in
and for the said CounlY, do cerlify thai lhe Honorable Harold E. Sbeelv
by whom the foregoing altestalion was made, aod wholms thereunto subscribed his oame, was. allhe time
of making thereof, nod ..ill is I'resident .Judge of the Court of Common Plens, Orphao' Court and Courl of
Qunner Sessions of lhe I'eaee in and for sllid County, dilly Cnmmissioned and qua lined: 10 all whose aelS
as such full failh IInd credil arc and lIllght to be given, as well in COllrts of judientllre as elsewhere,
IN TESTIMONY WHEltEOF, I h,..e hereunlo
set 111)' hand and nrr;,ed the seal of snid Courl Ihis
~ dny of -1!lovcmher A,I>, IlJ.-!!2..
?j' ~t-Gl- C~ )j,ftkl-/J'~-
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PAGE NJ.
1 - 12
13 - 15
16 - 21
22 - 4l
42 - 43
44 - 49
50 - 52
53 - 60
61 - 63
64 - 68
69 - III
Among Ihe Records and Prueeedings enrolled in the eourl of Common Pleas in and for the
counly of
ClII1berland
No. 2580 C.D. 1996
Q';_C;14 (,lvl1
Term, 19
is contained the followiog:
in Ihe Commonwealth of Pennsylvania
10 No,
COPY OF
Appearance
DOCKET ENTRY
BOARD OF SUPERVISORS OF SOUTH MIDDLETON TOWNSHIP,
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
RAYMOND E. DIEHL, GENEVIEVE A. DIEHL, DONALD E. DIEHL,
SUZANNE DIEHL, HAROLD OTTO AND SARA JANE OTTO
Jan. 30, 1996, Complaint, filed.
Feb. 8, 1996, Praecipe, filed.
Enter the appearance of Ml\R'I'SCt-l, DEARDORFF, WILLIAMS & arro in behalf
of the Defendants in the above matter.
By: Ivo V. Otto, III, Esq.
Feb. 20, 1996, Defendants' Preliminary Objections to Plaintiff's Canplaint,
filed.
Man:h 8. 1996, Plaintiff's Answer to the Preliminary Objections of the
Defendants, filed.
April 17, 1996, Praecipe for Listing Case for Argument, filed.
By: Richard P. Mislitsky, Esq.
May 17, 1996, Petition to Strike Case fran Argument Court, and Order of
Court, filed.
. AND NOW, this l7th day of May, 1996, the within case is stric~en fran
the Argument Court list of May 29. 1996.
By the Court. Harold E. Sheely. P.J.
July 1, 1996, Praecipe for Listing Case for Argument. filed.
By: Richard P. Mislitsky. Esq.
Sept. 12, 1996, Opinion and Order of Court, filed. In Re: Defendant's
Preliminary Objections to Plaintiff's Complaint for Declaratory Judgment.
AND NOW. this 12th day of September. 1996, after careful consideration
of defendants' Preliminary Objections to plaintiff's Complaint for Declarato
Judgment, and pursuant to the attached opinion, the Court will SUSTAIN
defendants' Objection in the nature of a demurrer. Accordingly, the Court
will not address the other grounds for objections. Plainitff's complaint
is DISMISSED with prejudice.
By the Court. Harold E. Sheely, P.J.
Sept. 23. 1996, Notice of Appeal. filed.
Notice is hereby given that the Board of Supervisors of South Middleton
Township, Cl.mberland County, Pennsylvania. Plaintiff above-named. hereby
appeals to the Canronwealth Court of Pennsylvania. fran the Order entered
in this matter on the 12th day of September. 1996. This Order has been
entered in the docket as evidenced by the attached copy of the docket entry.
By: Richard P. Mislitsky. Esq.
Sept. 30. 1996. Commonwealth Court of Pennsylvania Notice of Docketing Appea
to No. 2580 C.D. 1996. filed.
Briefs (3)
CERTI FICAT~: AND TRANSH I'I'TAI. O~' (IECOllO
UNDER
PENNSYLVANIA RULE OF APPELLATE_PIIOCEDURE 1931 (c)
To the Prothonotary of the Appellate Court to w~h the
wi thin matter has been appealed: cgw, ~
s: ., en
COMMONWEALTH COURT OF PENNSYLVANIA ~ ~';.
~ >l '" (Jo)
_ ",0
TilE UNDERSIGNED, Prothonotary of the Court '&r.~mmfB1 Pleas
of CUMBERLAND County. the said court being a ~uit,o~ecord,
do hereby certify that annexed hereto is a true and ~~iPt ~py
of the whole and entire record, including an opinion of~e~urt
as required by PA R.A.P. 1925, the original papers and exhibits,
if any on file, the transcript of the proceedings, if any, and the
docket entries in the following matter:
No. 96-514 Civil Term: No. 2580 C.D. 1996
Board of Supervipors of South Middleton Township
Cumberland County, Pennsylvania
vs.
Raymond E. Diehl, Genevieve A. Diehl, Donald E. Diehl,
Suzanne Diehl, Harold Otto and Sara Jane Otto
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The documents comprising the record have been numbered
from No. I to No. 111, and i1ttached hereto as Exhibit A is a
list of the documents correspondingly numbered and identified with
reasonable definiteness, including with respect to each document.
the Qumber of pages comprising the document.
tn
c:: '. " The date on which the record has been transmitted to the
Appellate court is November 22. 1996
: J
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of Court)
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Prothonotary
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An additional copy of this certificate is enclosed. Please
sign and date copy. thereby acknowledging receipt of this record.
RECORD RECEIVED:
Date:
(signature & title)
RE: BD. OF SUPRV. S. MIDDLETON TWP. v DIEHL
Lower Court No: 96-514 CIV
Appealed Oate: September 12, 1996
County: Cumberland
Commonwealth
Docket #: 2580 C.D. 1996
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CERTIFICATE OF CONTENTS OF REMANDEO RECORD
AND NOTICE OF REMAND UNDER
PENNSYLVANIA RULES OF APPELLATE PROCEDURE 2571 AND 2572(e)
THE UNDERSIGNED, prothonotary or Deputy Prothonotary of the
Commonwealth Court of Pennsylvania, the said court being a court of
record, does hereby certify that annexed to the original hereof is the
whole and entire record as remanded from the Commonwealth Court, in
compliance with Pennsylvania Rules of Appellate Procedure 2571 and
2572 (e).
An additional copy of this certificate is enclosed with the
original hereof and the clerk or prothonotary of the lower court or the
head, chairman, deputy or secretary of the government unit is hereby
directed to acknowledge receipt of the remanded record by executing
such copy at the place indicated and by retu~~ t~~ame IMMEDIATELY.
efC /Qr..t.k :.
Deputy Prothonotary/Chief Clerk
PLEASE SIGN AND RETURN IMMEDIATELY TO:
OFFICE OF THE CHIEF CLERK
COMMONWEALTH COURT OF PENNSYLVANIA
P.O. BOX 11730, SOUTH OFFICE BUILDING
HARRISBURG, PA 17108
(717)783-3215 OR 783-~5~
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(Seal of Court) ,I./.
Record Received: 7pgt'?7
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Reason for
Remand
Affirmed
Date record
Remanded
July 16, 1997
fV\-rC
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
BOARD OF SUPERVISORS OF SOUTH
MIDDLETON TOWNSHIP, CUMBERLAND
COUNTY, PA, :
Appellant
.
.
v.
No. 2580 C.D. 1996
RAYMOND E. DIEHL, GENEVIEVE A.
DIEHL, DONALD E. DIEHL, SUZANNE
DIEHL, HAROLD OTTO, and SARA JANE
OTTO
.
.
Argued:
April 10, 1997
BEFORE:
HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE DORIS A. SMITH, Judge
HONORABLE SILVESTRI SILVESTRI, Senior Judge
OPINION BY PRESIDENT JUDGE COLINS
FILED: May 16, 1997
The Board of Supervisors of South Middleton Township,
Cumberland County (Board) appeals the order of the Court of Common
Pleas of Cumberland County (common pleas court) dated September 12,
1996. That order granted the preliminary objections in the nature
of a demurrer of Raymond E. Diehl, Genevieve A. Diehl, Donald E.
Diehl, Suzanne Diehl, Harold otto, and Sara Jane otto (collectively
Appellees), and dismissed with prejudice the Board's complaint for
declaratory judgment filed against Appellees. We affirm.
In 1983, Raymond and Donald Diehl, father and son,
entered into an agreement to purchase 103 acres of property in
South Middleton Township from Harold and Sarah Otto. Later that
year, a subdivision of this property was approved by the Board. In
1988, the Diehls submitted another subdivision plan for a majority
of the property, known as "Yorkfield II," that was also approved by
the Board. In 1993, the Board notified Appellees that the "five-
'.
d-,~f
..
year protection" afforded by section 508 (4) (H) of the Pennsylvania
Municipalities Planning Code (MPC)' was in jeopardy if the
development did not take place within the close of five years from
the date of subdivision approval. section 508(4)(ii) provides:
When an application for approval of a
plat, whether preliminary or final, has been
approved without conditions or approved by the
applicant's acceptance of conditions, no
subsequent change or amendment in the zoning,
subdivision or other governing ordinance or
plan shall be applied to affect adversely the
right of the applicant to commence and to
complete any aspect of the approved
development in accordance with the terms of
such approval within five years from such
approval.
53 P.S. 510508(4) (H).
The Appellees did not proceed with
I
I
,
I
I
I
~
I
I
development of Yorkfield II within the five years from subdivision
approval, and, in fact, no development has taken place within this
subdivision at all.
The Board alleges that the township's zoning ordinance
was amended in 1989 and that the township's subdivision regulations
were amended the fOllowing year, with the effect of rendering the
Yorkfield II subdivision plan nonconforming in several respects,
including lot size. After Appellee, Donald Diehl, made an informal
request for sewage permits for Yorkfield II in late 1995, the
township replied by letter of December 4, 1995 informing Appellees
that the Board considered the Yorkfield II subdivision plan void by
operation of law, because the five-year period afforded by Section
508(4) (ii) of the MPC had expired, and that no permits would be
'Act of July 31, 1968, P.L. 805, ~ amended, 53 P.S.
510508(4) (H).
2
<,
issued unless new plans were submitted to ensure compliance with
existing ordinances. Thereafter, the ottos transferred legal title
to the Yorkfield II lots to Raymond and Donald Diehl, who, in turn,
conveyed the lots to their respective wives, Genevieve and Suzanne
Diehl.
Shortly after learning of these transfers, the Board
filed a complaint for declaratory judgment with the common pleas
court seeking (1) to void the conveyances, (2) to order that no
conveyance of any Yorkfield II lot be made until a subdivision plan
is submitted in conformity with current ordinances, and (3) to
declare that Yorkfield II is subject to existing township zoning,
subdivision, and other ordinances. Appellees filed preliminary
objections, seeking, among other, lesser relief, that the complaint
be dismissed by demurrer.
The common pleas court granted the demurrer, finding that
the Board's request for declaratory relief was not appropriate.
First, the court noted that no actual or imminent controversy
existed. Appellees merely conveyed lots among themselves; no
effort had been made to develop ,the lots in a.manner nonconforming
to existing ordinances. Second, the common pleas court noted that
if Appellees pursued development, they would need approval from the
Board or the township zoning board, thus making prior declaratory
relief at common pleas level inappropriate. The Board appealed.
This Court's scope of review when reviewing a trial court
order sustaining preliminary objections in the nature of a demurrer
is limited to determining whether the trial court abused its
3
.
,
discretion or committed an error of law. A demurrer should not be
sustained unless it is clear that the law will not permit the
relief sought. Sunnan v. Kratzer, 660 A.2d 226 (Pa. Cmwlth. 1995),
netition ~ allowance 2f anneal denied, 546 Pa. 659, 684 A.2d 560
(1996).
section 7541(a) of the Declaratory Judgments Act (Act),
42 Pa. C.S. 57541(a), provides that the purpose of the Act "is to
settle and to afford relief from uncertainty and insecurity with
respect to rights, status, and other legal relations, and is to be
liberally construed and administered." Section 7541(c) of the Act,
however, provides in part that relief shall not be available under
the Act for any "[p]roceeding within the exclusive jurisdiction of
a tribunal other than a court" or any "[p]roceeding involving an
appeal from an order of a tribunal." 42 Pa. C.S. 57541(c).
Further, declaratory judgment relief requires the presence of
antagonistic claims indicating imminent and inevitable litigation
coupled with a clear manifestation that the declaration will be of
practical help in ending the controversy. GUlnac v. South Butler
Countv School District, 526 Pa, 483, 587 A.2d 699 (1991). This
relief cannot be used in anticipation of events that may never
occur or for rendering an advisory opinion that may prove to be
purely academic; there must be a real controversy. ~ Finally,
the grant of a declaratory judgment is not a matter of right, but
a matter of the court's discretion. ~
Based upon these standards, it is clear that the common
pleas court did not err or abuse its discretion by granting the
.
4
demurrer. As that court noted, all that occurred was a transfer of
lots among Appellees; no attempt has been made to develop the lots.
Therefore, no actual controversy is identified.
When and if
Appellees choose to develop the lots, Appellees must, of course,
approach the Board or the local zoning hearing board for the
necessary approvals. Therefore, any issue regarding the future
status of the lots must necessarily be determined at the local
administrative level.
Further, although the Board argues that
declaratory judgment is proper because it contends that the
transfer of the lots violates the TownShip's subdivision and zoning
ordinances as well as the MPC, the Board fails to state any
particular provision that renders the transfers violative of local
law and, more significantly, fails to state why any violation
cannot be addressed first by local administrative action.z
Accordingly, declaratory judgment relief is unavailable to the
Board where the Board fails to identify an imminent controversy,
where any issue regarding the matters complained of would
undoUbtedly be addressed first at the local administrative level,
and where declaratory judgment' relief would merely serve as an
advisory opinion for the local administrative bodies.
ZThe Board argues that the provisions of Section 508(4) (ii) of
the MPC has extinguished the subdivision. This argument is clearly
incorrect. That section only provides a developer a five-year
window to develop an approved subdivision without compliance with
subsequent changes in local ordinances that occur during that time.
The end of the five-year period does not render null and void the
subdivision approval; it merely subjects the subdivision to the
requirements of current ordinances. A developer is always free to
apply for a variance from any new requirements imposed by a change
in an ordinance. See Minnick v. Zonina Hearina Board Town of
Mccandless, 455 A.2d 243 (pa. emwlth. 1983).
5
The Board cites York-Green Associates v. Board of
SUDervisors of South Hanover TownshiD, 486 A.2d 561 CPa. Cmwlth.
1985), as supporting their right to seek declaratory relief. The
issue in York-Green, however, was whether a developer could force
a governing body to issue building permits for a partially
undeveloped subdivision by writ of mandamus, when the developer did
not appeal the decision denying the permits.
Under the
circumstances of the case, this Court determined that the developer
could not obtain a writ of mandamus. In dicta, however, we noted
that since the developer claimed rights under a written agreement
it had with the local board of supervisors it could file a
declaratory judgment action to determine those rights, evidencing
another remedy for the developer aside from a mandamus action.
This case is therefore clearly distinguishable from the present one
where no contract is identified between or among Appellees and the
Board that may provide rights or privileges beyond those of the
typical relationship between landowner and local administrative
body.
Accordingly, the order of the common pleas court is
affirmed.
0~~~
~
JAMES GARDNER COLINS, President Judqe
6
..
,
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
BOARD OF SUPERVISORS OF SOUTH
MIDDLETON TOWNSHIP, CUMBERLAND
COUNTY, PA,
N(J. q(g-SIIJ- ~ T Vt.tr-
Appellant
v.
.
.
No. 2580 C.D. 1996
RAYMOND E. DIEHL, GENEVIEVE A.
DIEHL, DONALD E. DIEHL, SUZANNE
DIEHL, HAROLD OTTO, and SARA JANE
OTTO
.
.
.
o ROE R
AND NOW. this 16 day of May 1997, the order of the Court
of Common Pleas of Cumberland County in the above-captioned matter
is AFFIRMED.
~~~
JAMES GARDNER COLING, President Judqe
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IN THE COHMONWEALTH COURT OF PENNSYLVANIA
BOARD OF SUPERVISO~S OF SOUTH
MIDDLETON TOWNSHIP, CUMBERLAND
COUNTY, PA, :
Appellant
v.
No. 2580 C.D. 1996
RAYMOND E. DIEHL, GENEVIEVE A.
DIEHL, DONALD E. DI~HL, SUZANNE
DIEHL, HAROLD OTTO, and SARA JANE
OTTO
Argued: April 10, 1997
BEFORE:
HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE DORIS A. SMITH, Judge
HONORABLE SILVESTRI SILVESTRI, Senior Judge
OPINION BY PRESIDENT JUDGE COLINS
FILED: May 16, 1997
The Board of Supervisors of South Middleton Township,
Cumberland County (Board) appeals the order of the Court of Common
Pleas of Cumberland County (common pleas court) dated September 12,
1996. That order granted the preliminary objections in the nature
of a demurrer of Raymond E. Diehl, Genevieve A. Diehl, Donald E.
Diehl, Suzanne Diehl, Harold otto, and Sara Jane otto (collectively
Appellees), and dismissed with prejudice the Board's complaint for
declaratory judgment filed against Appellees. We affirm.
In 1983, Raymond and Donald Diehl, father and son,
entered into an agreement to purchase 103 acres of property in
South Middleton Township from Harold and Sarah otto. Later that
year, a subdivision of this property was approved by the Board. In
1988, the Diehls submitted another subdivision plan for a majority
of the property, known as "Yorkfield II," that was also approved by
the Board. In 1993, the Board notified Appellees that the "five-
year protection" afforded by section 508 (4) (ii) of the Pennsylvania
Municipalities planning code (MPC)' was in jeopardy if the
development did not take place within the close of five years from
the date of subdivision approval. section 508(4) (ii) provides:
When an application for approval of a
plat, whether preliminary or final, has been
approved without conditions or approved by the
applicant's acceptance of conditions, no
subsequent change or amendment in the zoning,
subdivision or other governing ordinance or
plan shall be applied to affect adversely the
right of the applicant to commence ann t,o
complete any aspect of the approved
development in accordance with the terms of
such approval within five years from such
approval.
53 P.S. 510508 (4) (ii).
The Appellees did not proceed with
development of Yorkfield II within the five years from subdivision
approval, and, in fact, no development has taken place within this
subdivision at all.
The Board alleges that the township's zoning ordinance
was amended in 1989 and that the township's subdivision regulations
were amended the following year, with the effect of rendering the
Yorkfield II subdivision plan nonconforming in several respects,
including lot size. After Appellee, Donald Diehl, made an informal
request for sewage permits for Yorkfield II in late 1995, the
township replied by letter of December 4, 1995 informing Appellees
that the Board considered the Yorkfield II subdivision plan void by
operation of law, because the five-year period afforded by section
508(4)(ii) of the MPC had expired, and that no permits would be
'Act of July 31, 1968, P.L. 805, ~ amended, 53 P.S.
510508(4) (ii).
2
-~'_.
Shortly after learning of these transfers, the Board
filed a complaint for declaratory judgment with the common pleas
court seeking (1) to void the conveyances, (2) to order that no
conveyance of any Yorkfield II lot be made until a subdivision plan
is submitted in conformity with current ordinances, and (3) to
declare that Yorkfield II is subject to existing township zoning,
subdivision, and other ordinances. Appellees filed preliminary
objections, seeking, among other, lesser relief, that the complaint
be dismissed by demurrer.
The common pleas court granted the demurrer, finding that
the Board's request for declaratory relief was not appropriate.
First, the court noted that no actual or imminent controversy
existed. Appellees merely conveyed lots among themselves; no
effort had been made to develop the lots in a manner nonconforming
to existing ordinances. Second, the common pleas court noted that
if Appellees pursued development, they would need approval from the
Board or the township zoning board, thus making prior declaratory
relief at common pleas level inappropriate. The Board appealed.
This Court's scope of review when reviewing a trial court
order sustaining preliminary objections in the nature of a demurrer
is limited to determining whether the trial court abused its
"
issued unless new plans were submitted to ensure compliance with
existing ordinances. Thereafter, the ottos transferred legal title
to the Yorkfield II lots to Raymond and Donald Diehl, who, in turn,
conveyed the lots to their respective wives, Genevieve and Suzanne
Diehl.
3
discretion or committed an error of law. A demurrer should not be
sustained unless it is clear that the law will not permit the
relief sought. SUDDan v. Kratzer, 660 A.2d 226 (pa. Cmwlth. 1995),
Detition !2t allowance 2f aDDea1 denied, 546 Pa. 659, 684 A.2d 560
(1996) .
Section 7541(a) of the Declaratory JUdgments Act (Act),
42 Pa. C.S. 57541(a), provides that the purpose of the Act "is to
settle and to afford relief from uncertainty and insecurity with
respect to rights, status, and other legal relations, and is to be
liberally construed and administered." Section 7541 (c) of the Act,
however, provides in part that relief shall not be available under
the Act for any "[p]roceeding within the exclusive jurisdiction of
a tribunal other than a court" or any "[p]roceeding involving an
appeal from an order of a tribunal." 42 Pa. C. S. 57541 (c) .
Further, declaratory judgment relief requires the presence of
antagonistic claims indicating imminent and inevitable litigation
coupled with a clear manifestation that the declaration will be of
practical help in ending the controversy. Gulnac v. South Butler
Countv School District, 526 Pa. 483, 587 A.2d 699 (1991). This
relief C:clllflOL La use.! in antic.:ipatioll of events that may never
occur or for rendering an advisory opinion that may prove to be
purely academic; there must be a real controversy. ~ Finally,
the grant of a declaratory jUdgment is not a matter of right, but
a matter of the court's discretion. Id.
Based upon these standards, it is clear that the common
pleas court did not err or abuse its discretion by granting the
4
..
demurrer. As that court noted, all that occurred was a transfer of
lots among Appellees; no attempt has been made to develop the lots.
Therefore, no actual controversy is identified.
When and if
Appellees choose to develop the lots, Appellees must, of course,
approach the Board or the local zoning hearing board for the
necessary approvals. Therefore, any issue regarding the future
status of the lots must necessarily be determined at the local
administrative level.
Further, although the Board argues that
declaratory judgment is proper because it contends that the
transfer of the lots violates the Township's subdivision and zoning
ordinances as well as the MPC, the Board fails to state any
particular provision that renders the transfers violative of local
law and, more significantly, fails to state why any violation
cannot be addressed first by local administrative action.z
Accordingly, declaratory judgment relief is unavailable to the
Board where the Board fails to identify an imminent controversy,
where any issue regarding the matters complained of would
undoubtedly be addressed first at the local administrative level,
and where declaratory judgment relief would merely serve as an
advisory opinion for the local administrative bodies.
ZThe Board argues that the provisions of Section 508(4) (ii) of
the MPC has extinguished the sUbdivision. This argument is clearly
incorrect. That section only provides a developer a five-year
window to develop an approved subdivision without compliance with
subsequent changes in local ordinances that occur during that time.
The end of the five-year period does not render null and void the
subdivision approval; it merely subjects the subdivision to the
requirements of current ordinances. A developer is always free to
apply for a variance from any new requirements imposed by a change
in an ordinance. See Minnick v. Zonina Hearina Board Town of
McCandless, 455 A.2d 243 (pa. Cmwlth. 1983).
5
The Board cites York-Green Associates v. Board of
SUDervisors of South Hanover TownshiD, 486 A.2d 561 CPa. Cmwlth.
1985), as supporting their right to seek declaratory relief. The
issue in York-Green, however, was whether a developer could force
a governing body to issue building permits for a partially
undeveloped subdivision by writ of mandamus, when the developer did
not appeal the decision denying the permits.
Under the
circumstances of the case, this Court determined that the developer
could not obtain a writ of mandamus. In dicta, however, we noted
that since the developer claimed rights under a written agreement
it had with the local board of supervisors it could file a
declaratory judgment action to determine those rights, evidencing
another remedy for the developer aside from a mandamus action.
This case is therefore clearly distinguishable from the present one
where no contract is identified between or among Appellees and the
Board that may provide rights or privileges beyond those of the
typical relationship between landowner and local administrative
body.
Accordingly, the order of the common pleas court is
ilffirmcd.
0~~~
\
JAMES GARDNER COLINS, President JUdge
6
..
..
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
BOARD OF SUPERVISORS OF SOUTH
MIDDLETON TOWNSHIP, CUMBERLAND
COUNTY, PA,
No. q6-SI'l~T~
Appellant
v.
.
.
No. 2580 C.D. 1996
RAYMOND E. DIEHL, GENEVIEVE A.
DIEHL, DONALD E. DIEHL, SUZANNE
DIEHL, HAROLD OTTO, and SARA JANE
OTTO
.
.
o R D E R
AND NOW, this 16 day of May 1997, the order of the Court
of Common Pleas of Cumberland County in the above-captioned matter
is AFFIRMED.
~~~
JAMES GARDNER COLINS, President Judqe
ItRTIFIW FRm~ TP' ~,rfJt-,
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