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HomeMy WebLinkAbout94-3422 Equity (3)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., September 22, 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 and authorizing a cleanup of the premises by the municipality. 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 third appeal.~ In this regard, the orders 1 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 second pending appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), was issued on July 20, 1999. which Defendant has appealed from (a) denied Defendant's motion to recuse the writer of this opinion and (b) granted Plaintiff's motion to enter upon the premises to facilitate preparation of bid documents related to the cleanup.2 Defendant has failed to file a statement of matters complained of on appeal.3 This opinion in support of the orders 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 was being maintained in violation of several ordinances,s 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 2 Orders of Court, June 9, 1999. 3 See Order of Court, July 16, 1999 (direction that Defendant file statement of matters complained of on appeal). Defendant filed a refusal to supply such a statement in the first of the three pending appeals. Defendant's Response to His Honors Rule 1925(b), filed January 27, 1999. He did not respond to orders that he file such statements in regard to the second and third appeals. 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. s Seeid. 2 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 Defendant was adjudicated in contempt of the decree for the first time on May 29, 1996.1° 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.~ He refused to 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). Order of Court, May 29, 1996. Order of Court, June 7, 1996. 3 comply with the condition of purge,~2 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.~3 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. Defendant was released from prison by agreement of the parties about a xveek after his commitment. His release was the result of his representation that he would finally clean up the premises. 16 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 ~2 See N.T. 3, Hearing on Commitment of Sentence, June 24, 1996. ~3 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. ~4 See N.T. 12, Hearing, December 2, 1997. ~5 Order of court, December 2, 1997. 16 Order of Court, December 11, 1997. Defendant was placed in an electronic monitoring program. Id. 17 Plaintiff's Third Petition for Adjudication of Civil Contempt, filed August 14, 1998. 4 this court's orders,''~s and that, "[flor more than two years, Carignan has voluntarily, willfully and intentionally failed to comply with this Court's orders.'d9 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: 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 is Id., paragraph 23. ~9 Id., paragraph 26. 20 See McMahon v. McMahon, 706 A.2d 350, 356 (Pa. Super. Ct. 1998). 2~ N.T. 61, Hearing, October 1, 1998. 22 Id. at 60. 5 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 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 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. 23 Plaintiff's Exhibit 1, Hearing, October 1, 1998. 24 N.T. 36, Hearing, December 9, 1998. 25 Id. at 30. 26 Id. at 48. 6 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 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? 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 cleanup project could be drained. 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? 27 Id. at 49. 28 Order of Court, December 9, 1998. 29 Plaintiff's Motion to Enter Premises, Exhibit C. 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 document containing various subparts and attachments? 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. Plaintiff's motion fails to conform to R.C.P. 2009.31, 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 30 Order of Court, March 8, 1999. 31 Order of Court, March 13, 1999. 32 Defendant's Response to Plaintiff's Motion To Enter, filed March 24, 1999. 33 Id. 8 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 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 his third adjudication of contempt, as to which an appeal was pending. Another subpart of Defendant's response to Plaintiff's motion was styled "Motion To Re-size and Photo Copy Pictorial Evidence." This aspect of the response sought court permission to remove photographic exhibits from the official file for purposes of "re- sizing" them. 34 Id. 35 Id. 9 Another subpart of Defendant's response to Plaintiff's motion was styled "Motion for Disqualification of Judge Oler." This aspect of the motion asserted that "Judge Oler is no longer a trier-of-fact but an advocate of the Township of Silver Spring, and a guardian of his order." Allegations in support of this motion included averments that "[t]his court continues to classify this case as civil not the proper classification of civil with the rules of criminal procedure controlling this case," "[t]he evidence presented does not support of a finding of fact that Defendant maintains a nuisance in fact," and that "[n]o 'Enforcement Notice' has ever been filed in this matter." On April 19, 1999, the court issued an order (a) denying Defendant's motion to strike Plaintiff's motion, (b) denying Defendant's motion to dissolve the existing injunction, and (c) scheduling a hearing on the other matters raised by the parties, including PlaintiWs request to enter upon the premises. Defendant filed an appeal from this order on May 20, 1999. This appeal remains pending in the Commonwealth Court. A hearing was held on June 9, 1999. Following the receipt of evidence on the subjects of recusal, "re-sizing" of photographs, and entry upon the premises by Plaintiff, the court entered the following orders: AND NOW, this 9th day of June, 1999, upon consideration of the Defendant's Motion for Disqualification of Judge Oler, and following a proceeding at which the Defendant made various offers of proof in support of the motion and the Plaintiff opposed the motion, the Motion for Disqualification is denied? 36 N.T. 17-18, Hearing, June 9, 1999. 10 AND NOW, this 9th day of June, 1999, upon consideration of Defendant's Motion To Resize and Photocopy Pictorial Evidence, and pursuant to an agreement reached in open court between the Plaintiff and the Defendant, the Defendant will be permitted to remove from the file certain exhibits which he has identified on the record and with the assistance of a representative from the Court Administrator's Office to effect the resizing and photocopying of the said evidence for such purposes as he might see fit. It is anticipated that this process will not cause the expenditure of more than three hours of the court administrator's time.37 ' AND NOW, this 9th day of June, 1999, upon consideration of the Plaintiff's Motion To Enter Premises and of Plaintiff's Motion To Make the Rule Absolute, and following a hearing held on this date, the Plaintiff's motion is granted to the extent that the Township of Silver Spring, its agents, employees, representatives and contractors are hereby authorized to enter the premises known as 6495 Carlisle Pike, Mechanicsburg, Pennsylvania, in order to inventory and mark the items to be removed as part of effecting a cleanup of the premises. This operation shall take place within three months of the date of this Order and upon ten days prior notice to the Defendant, during daylight hours on such day as is determined by the Plaintiff? On July 9, 1999, Defendant filed an appeal from the first and third orders quoted above. As noted previously, a statement of matters complained of on appeal has not been filed. 37 N.T. 27, Hearing, June 9, 1999. 38 N.T. 56-57, Hearing, June 9, 1999. 11 DISCUSSION Defendant's motion to recuse judge.. In general, an order denying a motion to recuse a judge during the pendency of an action is considered interlocutory and not appealable. See Kenis v. Perini Corporation, 452 Pa. Super. 634, 641,682 A.2d 845, 848 (1996). On the merits, a motion for recusal is addressed to the discretion of the court, and [i]t is the burden of the party asserting that a judge should be disqualified to make sufficient allegations of bias, prejudice or unfairness necessitating recusal, and a failure to do so will result in denial of the recusal motion. Commonwealth v. O'Shea, 523 Pa. 384, 408, 567 A.2d 1023, 1034 (1989). In the present case, the record indicates that Defendant believes that the court erred in concluding that the property in question was, and remains, a public nuisance, and that the court ruled incorrectly on various points.39 The record does not, in the court's view, suggest bias, prejudice or unfairness with respect to either party. For this reason, Defendant's Motion To Disqualify Judge Oler was denied. Plaintiff's motion to enter upon premises. An order in a public nuisance case permitting a municipality to inventory items of junk on property occupied by a defendant, for purposes of drafting bid documents, would appear to be an interlocutory, unappealable order. Cf Hurst v. Shaw, 121 Pa. Commw. 1, 9, 549 A.2d 1349, 1352 (1988) (order permitting inspection of corporate records held interlocutory). 39 See, e.g., N.T. 18-20, Hearing, June 9, 1999. 12 On the merits, the court's acceptance of Plaintiff's request to view the items in Defendant's yard for purposes of preparing bid documents in connection with the eventual cleanup was defensible on several grounds. First, Defendant did not file a timely response to the rule issued by the court on the subject. Second, no application for a stay and supersedeas pending appeal was filed by Defendant. See Pa. R.A.P. 1732-35. Third, the mere inspection of the premises in 'question by Plaintiff would not change the status quo in any event. For all of the foregoing reasons, it is believed that the orders of court dated June 9, 1999, appealed from were (a) interlocutory and unappealable and (b) correct on the merits. 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 13