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HomeMy WebLinkAbout94-3422 Equity (2)TOWNSHIP OF SILVER SPRING, Plaintiff V. GREGG R. CARIGNAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 94-3422 EQUITY TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., July 20, 1999. In this continuing litigation involving a municipality's attempt to rectify the condition of a yard which was found to be a public nuisance by this court in 1995, the pro se Defendant presently has three appeals pending in the Commonwealth Court. Two previous appeals were unsuccessful. Of the three pending appeals, the first is from an order adjudicating Defendant in contempt for a third time. The second is from an order which, inter alia, denied two post-contempt-appeal requests by Defendant. The third is from orders which disposed of the balance of outstanding post-contempt-appeal issues raised by the parties. This opinion deals with the subject of the second appeal,l In this regard, the order which Defendant has appealed from (a) scheduled a hearing on several matters raised by the parties, (b) denied a motion by Defendant to strike a motion filed by the municipality, and (c) denied an invitation by Defendant to revisit the issue of the propriety of an injunction issued by the court in 1995.2 Not uncharacteristically, Defendant has failed to file a statement of matters complained of on appeal.3 This opinion in support of the order of court appealed from 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.4 The relief accorded the municipal Plaintiff arose out of the court's finding that Defendant's property constituted a public nuisance and ~ An opinion on the first pending appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), was issued on March 18, 1999. An opinion on the third pending appeal remains to be filed. 2 Order of Court, April 19, 1999. 3 See Order of Court, June 1, 1999 (direction that Defendant file statement of matters complained of on appeal).. Defendant filed a refusal to supply such a statement in the appeal immediately preceding this one. Defendant's Response to His Honors Rule 1925(b), filed January 27, 1999. 4 Township of Silver Spring v. Carignan, 44 Cumberland L.J. 484 (1995). The court's decree was issued as a final decree, following disposition of a motion for post-trial relief, on December 11, 1995. 2 was being maintained in violation of several ordinances.5 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 the use of a gun to repel the skunks - successfully killing ten of them.6 The court's decree was affirmed by the Commonwealth Court on October 29, 1996.7 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? Defendant's petition for allowance of appeal was denied by the Pennsylvania Supreme Court on July 11, 1997.9 5 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). 3 Defendant was adjudicated in contempt of the decree for the first time on May 29, 1996.20 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.~l He refused to comply with the condition of purge,12 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.13 He again refused to make a commitment to clean up the property,TM 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. ~5 l0 Order of Court, May 29, 1996. 11 Order of Court, June 7, 1996. ~2 See N.T. 3, Hearing on Commitment of Sentence, June 24, 1996. 13 Order of Court, September 30, 1997. Defendant's appeal to the Commonwealth Court from this adjudication was eyentually quashed as interlocutory. Township of Silver Spring v. Carignan, No. 2976 C.D. 1997, Order of Court, May 11, 1998. 14 See N.T. 12, Hearing, December 2, 1997. is Order of Court, December 2, 1997. 4 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.~6 Plaintiff's third petition for contempt was filed on August 14, 1998.~7 The petition alleged, inter alia, that "Carignan has not cleaned up the subject premises to comply with this Court's orders,''~s and that, "[f]or more than two years, Carignan has voluntarily, willfully and intentionally failed to comply with this Court's orders.''~9 The court employed the five-step contempt procedure in dealing with this petition of the municipality? 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 the Defendant's own witnesses, for instance, a neighbor named Donald W. Moorhead, engaged in this exchange with the court: 16 Order of Court, December 11, 1997. Defendant was placed in an electronic monitoring program. Id. ~7 Plaintiff's Third Petition for Adjudication of Civil Contempt, filed August 14, 1998. ~8 Id., paragraph 23. ~9 Id., paragraph 26. 20 See McMahon v. McMahon, 706 A.2d 350, 356 (Pa. Super. Ct. 1998). 5 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? 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 .... ,22 The evidence included recent photographs of the property,23 which the court was able to compare with its recollection of the view of the premises it conducted prior to its initial adjudication that determined the property to be a public nuisance. The evidence, in addition, showed that Defendant was continuing to bring items onto the premises.24 Although some items were undoubtedly also taken off the property, the court was not persuaded by the undocumented 2~ N.T. 61, Hearing, October 1, 1998. 22/rd. at 60. 23 Plaintiff's Exhibit 1, Hearing, October 1, 1998. 24 N.T. 36, Hearing, December 9, 1998. 6 testimony of Defendant's spouse that twenty-six vehicles and thirty-four truckloads of materials had been removed.25 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 the Defendant.26 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 .27 In entering the order adjudicating Defendant in contempt for the third time, the court found that the condition of the premises had not materially changed since 25Id. at30. 26!d. at48. 27 Id. at 49. 7 the decree issued on October 19, 1995, and 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.28 Defendant's appeal from this order was filed on January 8, 1999. No supersedeas was sought by Defendant with respect to the order appealed from. The appeal remains pending in the Commonwealth Court. On March 4, 1999, Plaintiff filed a Motion To Enter Premises, requesting court permission to enter upon the premises sub judice to obtain information from which bid documents for the clean-up project could be drafted. Attached to the motion as an exhibit was a letter, purportedly from Defendant, stating that "[m]y property is not and has not been maintain (sic) as a nuisance in fact," and that Plaintiff would act "at its own peril" if it attempted the authorized cleanup? In response to Plaintiff's motion, the court issued a rule upon Defendant to show cause why the relief requested should not be granted? The rule returnable period was extended, at Defendant's request, to March 22, 1999.3~ Defendant failed to file a timely answer to Plaintiff's motion in accordance with the amended rule. When filed untimely, his response was a 23-page 28 Order of Court, December 9, 1998. 29 Plaintiff's Motion to Enter Premises, Exhibit C. 30 Order of Court, March 8, 1999. 3~ Order of Court, March 13, 1999. document containing various subparts and attachments.32 Among the subparts was a Motion To Strike Plaintiff's motion, premised upon the following: Plaintiff's motion fails to include "Rule to Show Cause" pursuant to C.C.R.P. Rule 206-3. Plaintiff's motion fails to include "Notice to Defend" pursuant to Rules of Civil Procedure 1018. Plaintiff's motion contains unverified statements without having included a "statement of verification" pursuant to R.C.P. 1024. PlaintiWs motion fails to conform to R.C.P. 4009.31, 4009.32, and 4009.33. No "Writ of Seizure" has been filed by the Plaintiff or its' counsel? Another subpart of Defendant's response to Plaintiff's motion opposed entry upon the premises by Plaintiff on the grounds that (a) Defendant did not know what items on his property were violative of the existing decree, (b) the court's order adjudicating him in contempt for a third time was not supported by evidence in the record, and (c) an on-site inspection of the items on the property was not necessary for purposes of preparation of the bid documents.34 32 Defendant's Response to Plaintiff's Motion To Enter, filed March 24, 199. 33 Id. 34 Id. 9 Another subpart of Defendant's response to Plaintiff's motion was styled "Motion To Dissolve Injunctive Order." This aspect of the response maintained that the court had erred in finding the property to be a public nuisance, that "[t]he Township case used unconstitutional prohabitional ordinances to forward its claim for injunctive relief," that ordinance changes had occurred since the initial adjudication, and that "[the] Township of Silver Spring did not put forth any evidence showing that any of the vehicles [on the premises] were disabled or that any of the items on the property were obviously unusable therefor, constituting junk pursuant to his Honors' statements.''35 In brief, Defendant reiterated contentions made in the past and in the recent proceedings which resulted in this third adjudication of contempt, as to which an appeal was pending. On April 19, 1999, the court issued36 an order (a) scheduling a hearing on various matters raised by the partiesl including PlaintiWs request to enter upon the premises, (b) denying Defendant's motion to strike Plaintiff's motion, and (c) denying Defendant's motion to dissolve the existing injunction. Defendant filed an appeal from this order on May 20, 1999. DISCUSSION In the absence of a statement of matters complained of on appeal, the court will assume that Defendant's appeal relates to the order's adverse rulings on his 35 Id. 36 The order was issued on April 19, 1999, but entered on April 20, 1999. See Pa. R.A.P. 108. 10 motion to strike Plaintiff's motion to enter upon the premises and his motion to dissolve the existing injunction. These matters will be discussed seriatim. With respect to the motion to strike, the court's refusal to strike Plaintiff's inspection motion was interlocutory and unappealable? On its merits, the motion to strike was not compelling: (a) the absence of a proposed rule to show cause was mooted as an issue by the court's issuance of a rule; (b) the notice to defend prescribed for complaints by Pennsylvania Rule of Civil Procedure 1018.1 was not applicable to Plaintiff's motion; (c)' verifications are not generally prescribed for motions under the Rule of Civil Procedure,38 and the absence of a verification on a motion such as Plaintiff's which related largely to matters of record and which was relegated to an evidentiary hearing, was of minimal significance and could properly be disregarded;39 (c) Plaintiff's motion did not on its face indicate a substantive conflict with discovery rules pertaining to entry upon property of a party;4° and (e) no authority was suggested for the proposition that a "writ of seizure" was a prerequisite to the filing of a motion to inspect. With respect to Defendant's motion to review the validity of the existing injunction on the basis of argumerits previously litigated and being pursued on appeal in the Commonwealth Court, several factors militated against granting the 37 See, Pa. R.A.P. 311,312, 341. 38 See e.g., Pa. R.C.P. 206.3, 1024. 39 See generally, Pa. R.C.P. 126 (liberal construction and application of rules). 11 motion. First, the reasons in support of the continued operation of the injun°ction, expressed in the court's opinion dated March 18, 1999, remained applicable. Second, a relitigation of the same issue between the same parties in the same forum is neither judicially economical nor fair to the party that initially prevailed. See generally Phillip v. Clark, 385 Pa. Super. 229, 560 A.2d 777 (1989) (rationale for issue preclusion doctrine); Buck v. Coldway Food Express, Inc., 383 Pa. Super. 580, 588, 557 A.2d 404, 407 (1989) (law of case doctrine). Third, this court's assumption of authority to reconsider issues pending an appeal would generally be inconsistent with Pennsylvania Rule of Appellate Procedure 1701(a). For all of the foregoing reasons, it is believed that the order of court dated April 19, 1999, was properly entered. Richard C. Snelbaker, Esq. Philip H. Spare, Esq. 44 West Main Street Mechanicsburg, PA 17011 Attorneys for Plaintiff Gregg R. Carignan 450 Gettysburg Pike Mechanicsburg, PA 17055-5170 Defendant, Pro Se :rc 40 See Pa. R.C.P. 4009.31 et seq. 12