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HomeMy WebLinkAbout94-3422 EquityTOWNSHIP OF SILVER SPRING, Plaintiff Vo GREGG R. CARIGNAN, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION -- EQUITY · 94-3422 EQUITY TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., March 18, 1999. In this apparently endless litigation involving a municipality's attempt to rectify the condition ora yard which was found to be a public nuisance by this court in 1995, Defendant has appealed pro se to the Commonwealth Court from a third adjudication of contempt and sanction. The order appealed from read as follows: AND NOW, this 9th day of December, 1998, upon consideration of Plaintiff's Third Petition for Adjudication of Civil Contempt, following a second hearing on this petition, and the Court finding that the condition of the property occupied by Defendant at 6495 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, has not materially changed since the Decree first issued by this Court on October 19, 1995, at which time the property was found to be a public nuisance, inter alia, the Court finds that Defendant continues to be in intentional, willful, and voluntary noncompliance with the Decree previously entered, and Defendant is adjudicated in civil contempt for a third time. The sanction imposed for this contempt is that the Plaintiff is authorized to, one month fi.om today's date, (1) abate the nuisance by effecting a cleanup of the premises, the cost of which shall be borne by Defendant; (2) enter judgment against Defendant for the said cost upon petition and any hearing ordered by the Court; and (3) file a municipal lien respecting the property for the said cost. Either party may secure the assistance of a constable in the form of his or her presence at the scene in the event that the same is deemed necessary, and the fee of the constable shall be borne by Defendant. The basis for the appeal is unclear, because Defendant has declined to provide a statement of matters complained of pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Defendant's response to the Court's order directing the filing of such a statement read as follows: ON the l lth day of January 1999 the Honorable J. Wesley Oler filed an order directing the Defendant to file a "Statement of Matters Complaint of'. In light of the fact that his Honor has not entered his opinion in support of his order(s) as per Rule 1925(a), the filing of "Statement of Matters Complained of' at this time would be premature and detrimental to the Defendants appeal, as all of the issues at bar, findings of facts, and law have yet to be completely and properly entered by this Court. Case law supports failure to list an issue may constitute a waiver of the issue but a Defendant's failure to file a "Statement of Matters Complained" of does not preclude meaningful appellate review White v Owens Coming Fiberglass, Crop. (1995, Pa Super) 668 A2d 136, and Mulholland v Workman's Compensation Appeal Bd. (Bechtel Constr.) (1995, Pa Cmwlth) 669, A2d 465.1 This opinion in support of the order appealed fi.om is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On October 19, 1995, a permanent injunction was issued against Defendant to clean up the premises of his residence in Silver Spring Township, Cumberland County, Pennsylvania.2 The relief accorded the municipal Plaintiff arose out of the court's finding Defendant's Response to His Honors Rule 1925(b), filed January 27, 1999. 2 Township of Silver Spring v. Carignan, 44 Cumberland L.J. 484 (1995). The court's decree was issued as a final decree, following disposition ora motion for post-trial relief, on December 11, 1995. that Defendant's property constituted a public nuisance and was being maintained in violation of several ordinances.3 The premises were described by this court in 1995 as follows: Since at least March of 1987, the township has been engaged in a running battle with Defendant as a result of the condition of his yard. The entire yard, except for passageways through it, is full of decaying vehicles, mobile home trailers acting as huge storage containers, rusting pieces of machinery, inoperable equipment, broken kitchen appliances, oil drums, worn out tires, and so forth. During a view of the premises by the court, the door to a refrigerator which was ostensibly operating on the porch was opened to reveal the disintegrating remains of some animal or bird habitation. Neighboring residents are unable to venture into their yards at night because of an influx of skunks emanating from the direction of the property, their windows must be kept shut because of the animals' stench, and one neighbor has resorted to use of a gun to repel the skunks -- successfully killing ten of them.4 The court's decree was affirmed by the Commonwealth Court on October 29, 1996.s In affirming the decree, the Commonwealth Court noted that "[w]e believe that these undisputed findings meet the legal requirement of public nuisance in fact.''6 Defendant's petition for allowance of appeal was denied by the Pennsylvania Supreme Court on July 11, 1997.7 Defendant was adjudicated in contempt of the decree for the first time on May 29, 3 See id. Id., at 486-487. Carignan v. Silver Spring Township, 683 A.2d 988 (Pa. Commw. 1996). Id. (memorandum opinion at 10). Carignan v. Silver Spring Township, 548 Pa. 663,698 A.2d 69 (1997). 1996.8 He was sanctioned on June 7, 1996, by a term of imprisonment of three months, with the condition of purge being that the property be cleaned up.9 He refused to comply with the condition of purge, t° and he served the period of incarceration. Defendant was adjudicated in contempt of the decree for the second time on September 30, 1996, following a hearing at which the evidence revealed that he had still done virtually nothing to bring his property into compliance with the court's decree. TM He again refused to make a commitment to clean up the property,~2 and was sanctioned on December 2, 1997, by a term of imprisonment of six months, with the condition of purge being that the property be cleaned up.~3 Defendant was released from prison by agreement of the parties about a week after his commitment. His release was the result of his representation that he would finally clean up the premises.14 Plaintiff's third petition for contempt was filed on August 14, 1998.15 The petition alleged, inter alia, that "Carignan has not cleaned up the subject premises to comply with this 8 Order of Court, May 29, 1996. 9 Order of Court, June 7, 1996. lo See N.T. 3, Hearing on Commitment of Sentence, June 24, 1996. ~ Order of Court, September 30, 1997. Defendant's appeal to the Commonwealth Court from this adjudication was eventually quashed as interlocutory. Township of Silver Spring v. Carignan, No. 2976 C.D. 1997, Order of Court, May 11, 1998. ~2 See N.T. 12, Hearing, December 2, 1997. 13 Order of Court, December 2, 1997. ~4 Order of Court, December 11, 1997. Defendant was placed in an electronic monitoring program. Id. is Plaintiff's Third Petition for Adjudication of Civil Contempt, filed August 14, 1998. 4 Court's orders,''16 and that, "[f]or more than two years, Carignan has voluntarily, willfully and intentionally failed to comply with this Court's orders.''~7 The court employed the five-step contempt procedure in dealing with the municipality's petition subjudice, is The evidence presented at the hearings on the petition satisfied the court that the condition of the premises had not materially changed since the initial adjudication finding it to be a public nuisance. One of Defendant's own witnesses, for instance, a neighbor named Donald W. Moorhead, engaged in this exchange with the court: Q Let me just ask you this. Have there been changes on Mr. Carignan's property? Has it improved? Is it better? Is it worse? Is it the same? What are your observations? A I can't see no improvement at all. I see stuff coming in. I see -- like down along the fence, for example, look at the golf carts that's sitting down there. Look at that cart that's halfways down in the -- I think it's a station wagon that's sitting back by the -- down in the -- down on the ground. No, I haven't seen no improvements.~9 Mr. Moorhead also testified that "right now, we know there's skunks around, because we can smell them at night. We can see where they're rubbing .... -20 The evidence included recent photographs of the property,21 which the court was able to compare with its recollection of the view of the premises which it conducted prior to its 16 Id., paragraph 23. ~7 Id., paragraph 26. 18 See McMahon v. McMahon, 706 A.2d 350, 356 (Pa. Super. Ct. 1998). 19 N.T. 61, Hearing, October I, 1998. 20 Id. at 60. 2x Plaintiff's Exhibit 1, Hearing, October 1, 1998. 5 initial adjudication which determined that the property was a public nuisance. The evidence, in addition, showed that Defendant was continuing to bring items onto the premises.22 Although some items were undoubtedly also taken off the property, the court was not persuaded by the undocumented testimony of Defendant's spouse that twenty-six vehicles and thirty-four truckloads of materials had been removed? At the conclusion of the second hearing on Plaintiff's third petition for contempt, the municipality argued for a third finding of contempt on the part of Defendant? With respect to the sanction to be imposed, it made the following suggestion: ... [R]ecognizing the previous incarceration[s] did not work to induce Mr. Carignan to comply with the order, the Township would request some limited time for Mr. Carignan to come into compliance with [the] court orders. We'd request some judicial authority in the form of a specific court order that would allow the Township and its agents, representatives, contractors to enter the premises for purposes of effecting compliance with the court orders, at Defendant's expense, that the resulting expense be then conveyed to the Court, and at which time we would request an in rem judgment and a municipal lien against the property in order to be certain that the Township's expenses involved in this cleanup effort can be collected. We would further suggest that the court ... direct the sheriff's deputies to be present at the times of entries onto the premises by the Township or its agents in order to prevent and/or avoid any interference with the Township's activities? In entering the order adjudicating Defendant in contempt for the third time, the court 22 N.T. 36, Hearing, December 9, 1998. 23Id. at30. 24 x/d. at48. 25 Id. at 49. 6 accepted the sanction proposed by the township in the form of authorization for municipal abatement of the nuisance, following a period for voluntary compliance by Defendant? Defendant's appeal from the order was filed on January 8, 1999. As noted previously, Defendant has declined to state the grounds for his appeal. DISCUSSION Where a court is charged with the function of fact-finding, it "is entitled to weigh the evidence presented and assess its credibility. The fact-finder is free to believe all, part, or none of the evidence [presented] .... "Murphy v. Murphy, 410 Pa. Super. 146, 158, 599 A.2d 647, 653 (1991). In the present case, Defendant's property had previously been found to be a public nuisance, in an adjudication upheld by the Commonwealth Court. Based on the evidence presented at the most recent hearings, this court found that the condition of the property had not materially changed in the intervening years, and that Defendant continued to be in contempt. With respect to the sanction imposed for the contempt, prior periods of incarceration with a condition of purge that the property be cleaned up had proven ineffectual. Abatement of a nuisance by a municipality is not an uncommon remedy, particularly where cooperation on the part of the person responsible for the nuisance has not been forthcoming. See generally King v. Township of Leacock, 122 Pa. Commw. 532, 552 A.2d 741 (1989). For the foregoing reasons, it is believed that this court's order dated December 9, 1998, providing Defendant with a period of thirty days to clean up his property and authorizing the Plaintiff to effect the cleanup thereafter at Defendant's expense was proper. 26 Order of Court, December 9, 1998. 7 Richard C. Snelbaker, Esq. Philip H. Spare, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 Attorneys for Plaintiff Gregg R. Carignan 450 Gettysburg Pike Mechanicsburg, PA 17055-5170 Defendant pro Se 8