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HomeMy WebLinkAbout98-4145 equityBOROUGH OF CARLISLE, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT H. BARRETT, DEFENDANT 98-4145 EQUITY TERM OPINION IN SUPPORT OF ORDER DATED JUNE 3, 199~ Bayley, J., June 23, 1999:- On July 22, 1998, plaintiff, the Borough of Carlisle, instituted this equity action against defendant Robert H. Barrett. Based on a litany of alleged continuing Borough Code violations by Barrett who is the owner of eleven properties in the historic district of Carlisle, the Borough sought the following equitable relief:1 A. That an agent be appointed to manage Barrett's eleven properties within the historic district in order to bring the properties into compliance with the code and historic district regulations; and B. That an injunction issue against Barrett prohibiting him from performing any repairs or alterations to any of his properties without first receiving certificates of appropriateness and building permits for such work; and C. That the Borough be awarded its reasonable attorneys fees in this action, and all previous actions, between the parties; and D. Such other equitable relief as the Court deems appropriate under the circumstances. (Emphasis added.) Barrett filed preliminary objections to the complaint which were dismissed on February 9, 1998. This court was satisfied that plaintiff, pursuant to the Borough of Kennet Square v. Lal, 165 Pa. Commw. 573 (1994), has stated a complaint upon which a The alleged violations and the extensive enforcement history are in detail averred in the Borough's seventy-three paragraph complaint. 98-4145 EQUITY TERM trial should be had on its claims for relief. The Borough of Carlisle sought discovery in the form of answers to interrogatories and a motion to compel the production of documents. the eight improved properties subject to this dispute. It also made a request to inspect Defendant refused to allow the inspection of the properties and disputed much of the discovery requested. On June 3, 1999, following a hearing on plaintiff's motion to compel compliance with its requests, the following order was entered: I. OBJECTIONS OF DEFENDANT TO PLAINTIFF'S INTERROGATORIES 1. Interrogatory No. 1. The objection IS SUSTAINED because the information sought is not relevant. 2. Interrogatory No. 2. The objection IS SUSTAINED except that defendant shall state his annual salary and any other income for the years 1996, 1997, 1998 and 1999 to date. 3. Interrogatory No. 5. The objection IS OVERRULED. Defendant shall answer this interrogatory in its entirety. 4. Interrogatory No. 7. Because defendant has identified only himself as an expert who will be called to testify, and he has answered the interrogatory with respect to himself, the objection IS SUSTAINED. 5. Interrogatory No. 10. The objection IS SUSTAINED because the information sought is not relevant. 6. Interrogatory No. 14. The objection IS OVERRULED. Defendant shall answer this interrogatory in its entirety. 7. Interrogatory No. 15. The objection IS OVERRULED. Defendant shall answer this interrogatory in its entirety. 8. Interrogatory No. 16. The objection IS SUSTAINED as the information sought is not relevant. 9. Interrogatory No. 17. The objection IS SUSTAINED as the information sought is not relevant. 10. All interrogatories that defendant is ordered to answer as set forth above shall be answered within twenty (20) days of this date. II. PLAINTIFF'S MOTION TO COMPEL DEFENDANT TO COMPLY WITH PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS 1. Request No. 2. IS DISMISSED as overbroad. 2. Request No 6. The motion IS GRANTED. Defendant shall provide -2- 98-4145 EQUITY TERM plaintiff with such documents. 3. Request No. 7. The motion IS GRANTED, Defendant shall provide plaintiff with such documents. 4. Request No. 8. IS DISMISSED as not relevant. 5. Request No. 9. IS DISMISSED as defendant was issued any such permits by plaintiff who has knowledge of them. 6. Request No. 10. IS DISMISSED as overbroad. 7. Request No. 11. The motion IS GRANTED, Defendant shall provide such documents to plaintiff. 8. All documents that defendant is ordered to produce as set forth above shall be produced within twenty (20) days of this date. III. REQUEST FOR INSPECTION OF IMPROVED PROPERTIES OF DEFENDANT AT 25 NORTH BEDFORD STREET, 35 SOUTH BEDFORD STREET, 37 SOUTH BEDFORD STREET, 122 EAST LIBERTY AVENUE, 134 EAST HIGH STREET, 136 EAST HIGH STREET, 138 EAST HIGH STREET AND 29 SOUTH EAST STREET 1. The request for the inspection of the aforesaid improved properties, which is opposed by defendant, IS GRANTED. 2. A group of up to six people may enter said properties, those people being one borough representative, the borough solicitor, a photographer who may be a borough representative, a real estate appraiser, a structural engineer and a contractor. 3. The entry of each property shall be for the purpose of inspecting, measuring, photographing, videotaping, testing, sampling, or analyzing the said properties and all fixtures and for code violations. 4. Each inspection may last for up to three hours. 5. The inspection schedule shall be as follows: a. The inspection of 25 North Bedford Street shall commence at 9:00 a.m., Monday, June 21, 1999. b. The ~nspection of 35 South Bedford Street shall commence at 1:00 p.m., Monday, June 21, 1999. c. The inspection of 37 South Bedford Street shall commence at 9:00 a.m., Tuesday, June 22, 1999. d. The ~nspection of 122 East Liberty Avenue shall commence at 1:00 p.m., Tuesday, June 22, 1999. e. The ~nspection of 134 East High Street shall commence at 9:00 a.m., Wednesday, June 23, 1999. f. The ~nspection of 136 East High Street shall commence at 1:00 p.m., Wednesday, June 23, 1999. g. The inspection of 138 East High Street shall commence at 9:00 a.m., Thursday, June 24, 1999. -3- 98-4145 EQUITY TERM h. The inspection of 29 South East Street shall commence at 1:00 p.m., Thursday, June 24, 1999. 6. Defendant shall provide complete access to these properties by the inspectors and shall not interfere with said inspections. 7. This inspection schedule may only be altered upon agreement of both parties for their convenience. On June 21, 1999, defendant filed an appeal to the Commonwealth Court of Pennsylvania, from the interlocutory order of June 3, 1999, complaining that the order allows "Plaintiff, Borough of Carlisle to search eight (8) of Defendant's improved properties without probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the things to be seized." Besides being an improper appeal from an interlocutory order,2 the order does not provide, as defendant maintains, for an illegal search of plaintiff's property or the seizure of anything. To the contrary, the order specifically limits the entry of plaintiff's agents into defendant's property: [flor the purpose of inspecting, measuring, photographing, videotaping, testing, sampling, or analyzing the said properties and all fixtures for code violations. 3 The order was entered pursuant to Pa. Rules of Civil Procedure 4009.31 and 2 Interlocutory orders are not appealable as of right as they can only be appealed by permission. Pa. Rule of Appellate Procedure 1311; Department of Transportation v. Lakeview Motel, Inc., 81 Pa. Commw. 262 (1984). 3The Borough has filed a motion to hold Barrett in contempt of the order for failing to allow entry for the scheduled inspections at 25 North Bedford Street and 35 South Bedford Street on June 21, 1999. A Rule to show cause was issued with a hearing set for July 7, 1999. The effect of even a proper petition to file an interlocutory appeal pursuant to Pa. Rule of Appellant Procedure 1311 is not to stay the proceedings in the trial court unless it is so ordered by that court or the Appellate Court. Pa. Rule of ^ppellate Procedure 1313. 98-4145 EQUITY TERM 4009.32 that provide: RULE 4009.31 ENTRY UPON PROPERTY FOR INSPECTION AND OTHER ACTIVITIES. GENERAL PROVISIONS Any party may serve a request upon a party pursuant to Rule 4009.32 ·.. to permit entry upon designated property in the possession or control of the party or person upon whom the request is served for the purpose of inspecting and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rules 4003.1 through 4003.6 inclusive. RULE 4009.32 REQUEST FOR ENTRY UPON PROPERTY OF A PARTY (a) The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the original process upon that party. The request shall describe with reasonable particularity the property to be entered and the activities to be performed. The conditions of the subject improved properties are relevant and admissible, and therefore within the scope of Pa. Rule of Civil Procedure 4003.1(a) and (b), and go to the (Date) heart of plaintiff's claim for equitable relief. Defendant apparently thinks that this is a criminal rather than a civil case. Edgar B. Bayley, ~ Edward L. Schorpp, Esquire Solicitor for the Borough of Carlisle Robert H. Barrett, Pro se 134 East High Street Carlisle, PA 17013 :saa -5-