HomeMy WebLinkAbout94-3422 Civil TOWNSHIP OF SILVER SPRING, : IN THE COURT OF COMMON PLEAS OF
Plaintiff
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
GREGG R. CARIGNAN, :
Defendant : NO. 94-3422 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONs;
BEFORE SHEELY, p.j., BAYLEY and OLER, JJ.
pRDER OF COURT
AND NOW, this ~ day of September, 1994, upon careful
consideration of the parties' briefs and oral arguments, the
Defendant's preliminary objection in the nature of a demurrer to
Counts I and III of the complaint is DENIED. The defendant,s
motions to strike paragraphs 8, 9, 10, 16, 17, 22, 23 and 26 of the
complaint are DENIED. The defendant's motions for more specific
statements with regard to paragraphs 3, 6, 13, 20 and 26 are
DENIED, and defendant,s motions for more specific statements with
regard to paragraphs 4, 16 and 22 are GRANTED. Finally, the
defendant,s motion to dismiss for lack of subject matter
jurisdiction is DENIED.
BY THE COURT,
~esley Oler,~r., j~z
Richard C. Snelbaker, Esq.
44 West Main Street
Mechanicsburg, PA 17055
Attorney for Plaintiff
TOWNSHIP OF SILVER SPRING, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
GREGG R. CARIGNAN, :
Defendant : NO. 94-3422 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE SHEELY, P.J., BAYLEY and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
The present case was commenced by the filing of a complaint
requesting equitable relief in the form of an injunction for
allegedviolations Of Silver Spring Township ordinances. At issue
in this case are the preliminary objections of the defendant
addressed in the following opinion.
STATEMENT OF FACTS
The facts in the instant case may be summarized as follows:
The plaintiff is the Township of Silver Spring located in
Cumberland County, Pennsylvania.~ The defendant, Gregg R.
Carignan, is in possession of property known as 6495 Carlisle Pike
within a C-2 Highway Commercial District in the Township of Silver
Spring.2 The plaintiff initiated this action by filing a complaint
which alleges that, for several years, the defendant has violated
ordinances of the Township of Silver Spring by collecting and
storing "junk, trash, debris, scrap, unlicensed and unworkable
motor vehicles and other materials on [his property]" in violation
Complaint at paragraph 1.
Complaint at paragraphs 2-3, 13.
NO. 94-3422 CIVIL TERM
of several township ordinances.3
Regarding the specific ordinances which have been violated,
the plaintiff's complaint alleges that the defendant's conduct in
collecting and storing various forms of debris constitutes a
violation of Ordinance No. 4 of the Silver Spring Ordinances
enacted on December 15, 1959; of Ordinance No. 26 of the Silver
Spring Ordinances enacted on October 14, 1969; and of various
sections of the Silver Spring Township Zoning Ordinance.4
With regard to Ordinance No. 4, the complaint alleges that the
defendant is in violation of the ordinance because he has created,
maintained and operated a junk yard; because he has failed to
obtain a license as a "junk dealer"; and because he has failed to
fence in his property in accordance with the provisions of the
ordinance.5 Additionally, Count I of the complaint alleges that
the defendant has disregarded the Township's notice of past
ordinance violations.6 Finally, Count I of the complaint alleges
that the defendant's operation of a junk yard, in violation of
Ordinance No. 4, constitutes a nuisance and is a threat to the
public health, safety, and welfare.7
Complaint at paragraph 4.
Complaint at paragraphs 6, 20 and 22.
Complaint at paragraphs 6-8.
Complaint at paragraph 4.
Complaint at paragraphs 9, 14.
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NO. 94-3422 CIVIL TERM
With regard to the violations of Ordinance No. 26, Count III
of the complaint alleges that the defendant's conduct constitutes
a violation of the ordinance's proscription on the storage of
"wrecked or junked motor vehicles or parts thereof on private
grounds within the Township.-8 Count III also alleges that the
plaintiff has notified the defendant of his violation of the
ordinance.9
Count II of the complaint alleges that the defendant has
violated the Silver Spring Township Zoning Ordinance. Sections
302.1A.20, 809.1A.1 and 5 of the ordinance prohibit the use of
property in a C-2 Highway Commercial District for "open storage of
motor vehicles as an automobile graveyard, for outdoor storage of
material not part of the normal residential use of the premises and
as a junk yard.''~° Finally, Count II alleges that the plaintiff has
notified the defendant of his violation of the zoning ordinance.~
Count IV of the complaint alleges that the defendant's
conduct, referred to in paragraph 4 of the complaint, including
storage of junk, trash, debris, scrap, and motor vehicles on his
property, constitutes a public nuisance.~2 In support of this
Complaint at paragraphs 20-21.
Complaint at paragraph 22.
Complaint at paragraph 14.
Complaint at paragraph 16.
Complaint at paragraphs 4 and 27.
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NO. 94-3422 CIVIL TERM
nuisance theory, the complaint alleges that the conditions upon the
defendant's property constitute a "threat of danger to the health,
safety and welfare of the public by creating and maintaining an
environment in a basically residential neighborhood which provides
for the breeding of insects, vermin, and other animal life inimical
to human life, by creating and maintaining a condition attractive
and dangerous to unsuspecting children, and generally creating and
maintaining conditions incompatible with the conditions of the
community and in violation of the public rules of order .... "~
The complaint also alleges that the pattern of defendant's
prior violations of Silver Spring ordinances indicates that a
"multitude of summary conviction proceedings" will be necessary to
enforce the ordinances in the instant case.TM Finally, the
complaint avers that the plaintiff has no adequate remedy at law
and demands equitable relief in the form of an injunction.~s
The defendant has responded to the complaint with various
preliminary objections which may be summarized as follows: (1)
demurrers to Counts I and III of the complaint; (2) motions to
strike several paragraphs of the complaint; (3) motions for more
specific statements; and (4) a motion to dismiss for lack of
subject matter jurisdiction.
Complaint at paragraph 26.
Complaint at paragraphs 10, 17, and 23.
Complaint at paragraphs 11, 18, 24 and 28.
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NO. 94-3422 CIVIL TERM
Initially, the defendant has demurred to Count I of the
complaint alleging that the plaintiff has failed to state a cause
of action arising under Ordinance No. 4, which prohibits a person
from engaging in the business of a junk dealer without a license.~6
The defendant argues that the complaint is deficient because it
fails to allege that the defendant is a junk dealer.~7
In addition to this claim, the defendant has filed an Amended
Preliminary Objection in the form of a demurrer to Count III of the
complaint. With regard to the sufficiency of Count III, the
defendant alleges that the plaintiff~has failed to state a cause of
action under ordinance No. 26 by merely alleging the storage of
junked motor vehicles and other debris on the defendant's
property.~8 The defendant asserts that the presence of such
vehicles on a person's property does not, in itself, support a
finding of nuisance in fact and that, absent allegations of
nuisance in fact, the complaint in this regard should be
dismissed.~9
In addition to these demurrers, the defendant has filed
motions to strike various portions of the plaintiff's complaint.
More specifically, the defendant seeks to strike paragraphs 8, 10,
Preliminary Objections at paragraph 2.
Preliminary Objections at paragraphs 3-4.
Amended Preliminary Objections at paragraph 27.
Amended Preliminary Objections at paragraphs 27-28.
5
NO. 94-3422 CIVIL TERM
16, 17, 22, 23 and 26 on the ground that these paragraphs are vague
and do not describe the alleged behavior of the defendant with
sufficient particularity, in violation of Pa. R.C.P. 1019(a).2°
Additionally, the defendant contends that the allegations of
paragraphs 10, 17 and 23, which include statements that the
plaintiff will be required to institute a multitude of summary
conviction proceedings in order to enforce its ordinances, "as
indicated by Defendant's past history in dealing with violations of
Plaintiff's ordinances," are irrelevant and should be stricken.2~
Finally the defendant claims that the allegations of paragraph 9 of
the complaint, indicating that the defendant's conduct constitutes
a public nuisance, and the allegations of paragraph 26, indicating
that the defendant's conduct presents a danger to the health,
safety, and welfare of the public, should be stricken because they
are conclusory statements in violation of Pa. R.C.P. 1019(a).22
The defendant has also filed motions for more specific
statements regarding various paragraphs of the complaint.
Initially, the defendant asserts that paragraph 3 of the complaint,
which alleges that the defendant is in possession of a certain
parcel of land known as 6495 Carlisle Pike, is impermissibly vague,
because the parcel named in the complaint is subdivided into two
Preliminary Objections at paragraphs 7, 8, 11, 12 and 13.
Preliminary Objections at paragraph 11.
Preliminary Objections at paragraph 9.
6
NO. 94-3422 CIVIL TERM
lots, only one of which contains an automobile salvage shop
containing unlicensed and unworkable vehicles.23 The defendant
claims that the lack of particularity with regard to the land named
in paragraph 3 entitles him to a more specific pleading.24
Also in relation to the place of the alleged violation, the
defendant has filed motions for more specific statements with
regard to paragraphs 13 and 26. The defendant contends that
paragraph 13 of the complaint, which alleges that the subject
premises are in a C-2 Highway Commercial District, is inconsistent
with paragraph 26, which alleges that the defendant has created an
unsafe environment in a "basically residential neighborhood.-25
Additionally, the defendant claims that the phrase "basically
residential neighborhood" is vague and "does not effectively
describe the alleged place of violation."26
In addition to these claims related to the land involved in
the instant case, the defendant has requested a more specific
pleading with regard to paragraph 4 of the complaint, which alleges
that "for several years" the defendant has stored trash and debris
on his property.27 The defendant contends that the averments of
Preliminary Objections at paragraphs 14-16.
Preliminary Objections at paragraph 16.
Preliminary Objections at paragraphs 22-23.
Preliminary Objections at paragraph 23.
7
NO. 94-3422 CIVIL TERM
paragraph 4 do not comply with Pa. R.C.P. 1019(f), because the
paragraph does not state with sufficient particularity the time at
which the alleged violations occurred.28
The defendant also objects to paragraphs 16 and 22 of the
complaint, which allege that the plaintiff has notified the
defendant of his violations of the Silver Spring Zoning Ordinance
and of Ordinance No. 26. The defendant maintains that he is
entitled to a more specific pleading with regard to paragraphs 16
and 22 because they do not "particularly describe the manner of
notice as required by law.''29
Additionally, the defendant submits that he is entitled to a
more specific pleading with regard to paragraphs 6, 13, and 20 of
the complaint because these paragraphs, which allege that the
defendant has violated several Silver Spring Ordinances, do not
particularly describe the official acts or documents referred to in
the complaint in violation of Pa. R.C.P. 1019(d).3°
Finally, the defendant asserts that this case should be
dismissed for lack of subject matter jurisdiction. In making this
27 Preliminary Objections at paragraph 17; Complaint at
paragraph 4.
Preliminary Objections at paragraph 8.
Preliminary Objections at paragraphs 17, 19.
Preliminary Objections at paragraphs 20-21.
8
NO. 94-3422 CIVIL TERM
assertion, the defendant contends that the plaintiff "has failed to
plead service of an enforcement notice as required by law" and that
this Court lacks jurisdiction over an enforcement proceeding where
no notice is given.3~
STATEMENT OF LAW
Demurrers. In regard to the defendant's demurrer to Count I,
we note that in analyzing a pleading for purposes of a demurrer,
the trial court is required to consider as admitted all well-
pleaded facts and any inferences which are reasonably deducible
from those facts. A preliminary objection in the nature of a
demurrer should be granted only in cases which are free from doubt
and where the complaint clearly fails to state a cause of action.
The Court should resolve any doubt as to whether the complaint
presents a valid claim for relief in favor of overruling the
demurrer. Britt v. Chestnut Hill College, 429 Pa. Super. 263, 632
A.2d 557 (1993).
The defendant has also filed an Amended Preliminary Objection
in the form of a demurrer to Count III of the complaint alleging
the plaintiff's failure to state a cause of action under ordinance
No. 26 by merely alleging the storage of junked motor vehicles and
other debris on the defendant's property.~2 With regard to this
~ Preliminary Objections at paragraphs 24-25.
32 In the brief filed in opposition to the defendant's
preliminary objections, the plaintiff asserts that this Court
should not address the defendant's amended preliminary objections
9
NO. 94-3422 CIVIL TERM
claim, we note that, where a party seeks to enjoin an alleged
nuisance arising from the operation of an automobile junkyard in
violation of a local zoning ordinance, the record before the court
must establish that the conduct of the defendant has become a
nuisance in fact. 2 Summary of Pennsylvania Jurisprudence ~21:51,
at 230 (1991). The storing of abandoned automobiles has been held
to constitute a nuisance in fact where accumulation of the junked
vehicles creates a danger to the health of a municipality's
citizens by creating a breeding area for rodents or where junked
vehicles create an attractive nuisance for children. Commonwealth
v. Sadecky, 41 Pa. Commw. 86, 89-90, 398 A.2d 1073, 1075 (1979).
Motions to strike. Pa. R.C.P. 1028(a)(2), formerly
1017(a)(2), provides that a motion to strike off a pleading is
proper where the pleading fails to conform to a rule of court or
where the pleading contains impertinent matter.TM A motion to
because they were filed without leave of court or consent of the
opposing party. Although we do not encourage this method of
amendment, we note that an amendment to a preliminary objection
which is filed without leave of court or consent of the opposing
party can be properly considered by a reviewing court where the
amendment is filed before any action is taken on the original
preliminary objection. Bowman v. Meadow Ridge, Inc., 419 Pa.
Super. 511, 615 A.2d 755 (1992). Accordingly, we address the
defendant's amended preliminary objection on its merits.
3~ With respect to preliminary objections seeking to strike
impertinent matter, the Commonwealth Court has held that the
authority of a court to strike impertinent matter should be
sparingly exercised and only when a party can affirmatively show
prejudice. Commonwealth, Dep't. of Envtl. Resources v. Hartford
Accident and Indemnification Co., 40 Pa. Commw. 133, 138, 396 A.2d
885, 888 (1980).
10
NO. 94-3422 CIVIL TERM
strike, however, is not a substitute for a motion for a more
specific pleading. "[F]ailure to conform to a rule of court
contemplated by a preliminary objection in the nature of a motion
to strike is not the mere failure to plead sufficient facts .... "
Huguet v. Foodsaves, Inc., 3 Pa. D. & C.3d 136, 138 (Chester Co.
1971). Additionally, a motion to strike must be overruled where it
is substituted for a motion for a more specific pleading. McNally
v. Eynoyer, 1 Pa. D. & C.4th 372, 375 (Lancaster Co. 1988); see
also 2 Goodrich Amram 2d 1017(b):12, at 256 (1991).
With regard to the defendant's motion to strike paragraph 26
as a conclusory allegation, we note that the Pennsylvania Rules of
Civil Procedure do not expressly prohibit pleading conclusions of
law. Such pleading is, however, impliedly prohibited by Rule
1019(a), which restricts pleadings to the material facts upon which
a claim or defense is based. 2 Goodrich Amram 2d S1019(a):7, at
322 (1991).
"A practical test of whether an averment is a conclusion of
law is whether it could fit or describe two or more factual
situations and whether it states the consequences of what happened
instead of the fact of what happened." Id., at 322-23.
A reviewing court is permitted wide discretion in determining
whether an averment is a conclusion of law or an allegation of fact
or whether a particular averment constitutes evidence rather than
a material fact. "What would normally be a 'conclusion of law'
11
NO. 94-3422 CIVIL TERM
may, in a particular pleading, be considered a material fact."
Id., at 324.
Motion for a more specific pleading. With regard to the
defendant's motions for more specific statements, we note that Pa.
R.C.P. 1019 provides that the material facts on which a cause of
action or defense is based shall be stated in a concise and summary
form. Pa. R.C.P. 1019(a). In this regard, where a preliminary
objection challenges the sufficiency of a pleading, "[t]he question
to be decided is ... 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 upon
what gounds to make his or her defense." 2 Goodrich Amram 2d
S1017(b):21, at 265 (1991).
In regard to the information sought upon a motion for a more
specific pleading, it is well established that a motion seeking
details which are more easily known by the adverse party will be
denied. Under such circumstances, "it [becomes] obvious that the
adverse party merely wants to determine how much his adversary
'knows' and could prove and is not requesting the specific pleading
because he is in the dark about what the pleading party is
claiming." Speck v. Finegold, 268 Pa. Super. 342, 352 n.10, 408
A.2d 496, 501 n.10 (1979), rev'd on other grounds, 497 Pa. 77, 439
A.2d 110 (1981).
In addressing the defendant's motion for a more specific
12
NO. 94-3422 CIVIL TERM
pleading with regard to the averments of time in paragraph 4, we
note that Pa. R.C.P. 1019(f) requires averments of time and place
to be specifically stated.
Lack of subject matter jurisdiction. Finally, we address the
law governing the defendant's motion to dismiss for lack of subject
matter jurisdiction. Initially, we note that a preliminary
objection averring lack of subject matter jurisdiction involves a
determination of whether a court has jurisdiction over the subject
matter of an action. 2 Goodrich Amram 2d S1017(b):7, at 249
(1991). "The test in such a situation is the competency of [the]
court to determine controversies of the general class to which [the
case] belongs. Id., at 249.
With regard to the subject matter jurisdiction of this Court
in zoning violation cases arising under the Pennsylvania
Municipalities Planning Code (MPC), Section 617 of the MPC
provides:
In case any ... land is or is proposed to be
· ..maintained ... in violation of any
ordinance enacted under this act or prior
enabling laws, the governing body; ... in
addition to other remedies, may institute any
appropriate action or proceeding to prevent
· .. in or about such premises, any act,
conduct, business or use constituting a
violation.34
Additionally, in Board of Supervisors v. Matlack, 38 Pa. Commw.
34 Act of Dec. 21, 1988, P.L. 1329, S61, 53 P.S. §10617 (1994
Supp.).
13
NO. 94-3422 CIVIL TERM
523, 394 A.2d 639 (1978), the Court held that a common pleas court
has jurisdiction to issue an injunction restraining a use of
property which violates a township's zoning ordinance. Moreover,
a township is not required to exhaust its statutory remedies to
enjoin a defendant's alleged violation of its zoning ordinance.
Bradley v. South Londonderry Twp., 64 Pa. Commw. 395, 440 A.2d 665
(1982).
APPLICATION OF LAW TO FACTS
Application of the points of law enumerated above to the facts
of the instant case leads to a conclusion that the defendant's
demurrer to Count I should not be granted. The defendant's
preliminary objection in the form of a demurrer alleges that the
plaintiff has failed to state a cause of action under Ordinance No.
4 because the complaint does not state that the defendant is a junk
dealer. Examination of the complaint, however, reveals that the
plaintiff has satisfied this requirement. Paragraph 7 avers that
the defendant has failed to obtain a license as a junk dealer. We
find this allegation sufficient to merit the denial of the
defendant's motion for a demurrer.
With regard to the defendant's demurrer to Count III, we find
that the plaintiff has stated a cause of action under Ordinance No.
26. In making this determination we note the averments of
paragraph 9 of the complaint, incorporated by reference in Count
III, indicating that the defendant's operation of a junk yard
14
NO. 94-3422 CIVIL TERM
constitutes a nuisance and is a threat to public health, safety and
welfare. Additionally, we note that paragraph 26 alleges that the
defendant's conduct as averred in paragraph 4 creates a threat of
danger to the health and safety of the public by creating and
maintaining an environment which provides for the breeding of
insects and vermin and which creates an attractive nuisance.
Reading the complaint as a whole, we are satisfied as to the
averments of nuisance in fact required to maintain a cause of
action. The defendant's demurrer to Count III is, therefore,
denied.
With regard to the defendant's motion to strike paragraphs 8,
10, 16, 17, 22, 23 and 26 on the ground that these paragraphs are
vague and do not describe the alleged behavior of the defendant
with sufficient particularity, we find that the defendant has
substituted a motion to strike for a motion for a more specific
pleading. Accordingly, we deny the defendant's motion to strike.
With regard to the defendant's assertion that paragraphs 10,
17 and 23, should be stricken as irrelevant material, we find that
the defendant has failed to show the prejudicial nature of the
statments contained in those paragraphs and accordingly deny the
motion to strike.
Finally, we address the defendant's motion to strike the
allegations of paragraph 9 and paragraph 26. Paragraph 9 alleges
that the defendant's conduct constitutes a nuisance in fact and
15
NO. 94-3422 CIVIL TERM
paragraph 26 supports this allegation by averring that the
defendant's conduct is dangerous to the health, safety and welfare
of the public because it creates a breeding ground for vermin and
an attractive nuisance for children. In addressing the motion to
strike these allegations, we reemphasize the law governing a
nuisance which arises from the operation of an automobile junkyard
in violation of a local zoning ordinance. Under this law, the
record before the court must show that the defendant's conduct
constitutes a nuisance in fact, and a nuisance in fact is
established by showing that the defendant has endangered the public
welfare by creating a breeding ground for vermin or by creating an
attractive nuisance. We decline to strike these paragraphs as we
find that they comport with the pleading requirements for nuisance
in fact. We, therefore, deny the defendant's motion to strike
paragraphs 9 and 26.
We now address the defendant's motions for more specific
statements. With regard to defendant's assertion that paragraph 3
of the complaint is impermissibly vague because it does not specify
the section of the parcel which is being used as an automobile
junkyard, we hold that paragraph 3 is sufficiently specific to
permit the defendant to form a defense. In addition, we note that
the information sough~ is easily known to the defendant and
accordingly deny the motion for a more specific pleading with
regard to paragraph 3.
16
NO. 94-3422 CIVIL TERM
In examining paragraph 13 and paragraph 26 of the complaint,
in light of the defendant's motion for a more specific pleading, we
reach a similar conclusion. We find no inconsistency between
paragraph 13, indicating that the subject premises are in a C-2
Highway Commercial District, and paragraph 26, which alleges that
the defendant has created an unsafe environment in a "basically
residential neighborhood." Furthermore, we hold that the phrase
"basically residential neighborhood" is not so vague as to prevent
the defendant from preparing a defense. As the premises in
question are alleged to be the defendant's residence, he would
appear to be aware of the nature of the surrounding neighborhood.
Because the information sought by the defendant is more easily
known to the defendant than to the plaintiff, we deny the
defendant's motion for a more specific pleading.
Applying the guidelines set forth in Pa. R.C.P. 1019(f) with
respect to averments of time, we grant the defendant's motion for
a more specific pleading regarding paragraph 4. This paragraph
alleges that the defendant has violated the plaintiff's ordinances
"for several years." We find that this allegation may be
insufficient to permit the defendant to prepare a defense and
instruct the defendant to specify with more particularity the time
of the alleged violations.
In examining the defendant's motion for more specific
statements regarding the notice portions of paragraphs 16 and 22,
17
NO. 94-3422 CIVIL TERM
we find that these paragraphs are deficient because they fail to
particularly describe the manner of notice. Accordingly, we grant
the defendant's motion for a more specific pleading and instruct
the plaintiff to specify the manner of notice.
In applying the relevant points of law to the defendant's
motion for a more specific pleading with regard to paragraphs 6, 13
and 20, we find that additional specificity is not warranted.
Defendant objects to these paragraphs because he contends that they
do not describe the official acts or documents allegedly violated
by the defendant. Our examination of the complaint reveals that
each of the ordinances is identified by its official number or name
and date of enactment. In addition, we note that defendant has
appended copies of Ordinance No. 4 and Ordinance No. 26 to his
brief in support of his preliminary objections. We are thus
satisfied that the information in the pleading informs the
defendant of the plaintiff's basis of recovery and permits the
defendant to formulate a defense. The defendant's motion for a
more specific pleading is therefore denied.
Finally, we address the defendant's assertion that this court
lacks subject matter jurisdiction over the case before us. As
Pennsylvania case law indicates that a court of common pleas has
jurisdiction to issue an injunction restraining the violation of a
zoning ordinance, we find that this Court is competent to determine
the issues arising from the instant case. Accordingly, we deny the
18
NO. 94-3422 CIVIL TERM
defendant's motion to dismiss for lack of subject matter
jurisdiction.3s
For all of the aforementioned reasons, we enter the following
order:
ORDER OF COURT
AND NOW, this ~ day of September, 1994, upon careful
consideration of the parties' briefs and oral arguments, the
Defendant's preliminary objection in the nature of a demurrer to
Counts I and III of the complaint is denied. The defendant's
motions to strike paragraphs 8, 9, 10, 16, 17, 22, 23 and 26 of the
complaint are denied. The defendant's motions for more specific
statements with regard to paragraphs 3, 6, 13, 20 and 26 are denied
and that defendant's motions for more specific statements with
regard to paragraphs 4, 16 and 22 are granted. Finally, the
defendant's motion to dismiss for lack of subject matter
jurisdiction is denied.
BY THE COURT,
J. Wesley Oler, J~., J.
3s Defendant asserts that this court lacks subject matter
jurisdiction because the plaintiff has failed to allege that it has
complied with the notice provisions of Pennsylvania Municipalities
Planning Code S616.1. After examining the statute, however, we
find that there is no requirement in law to give the specific
notice required under section 616.1 of the MPC prior to initiating
an action in equity. Subject matter jurisdiction is, therefore,
properly vested in this court.
19
NO. 94-3422 CIVIL TERM
Richard C. Snelbaker, Esq.
44 West Main Street
Mechanicsburg, PA 17055
Attorney for Plaintiff
Stephen K. Portko, Esq.
101 Office Center, Suite A
101 South Route 15
Dillsburg, PA 17019
Attorney for Defendant
: rc
20
Stephen K. Portko, Esq.
101 Office Center, Suite A
101 South Route 15
Dillsburg, PA 17019
Attorney for Defendant