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HomeMy WebLinkAbout2006-1908 Civil JOHN T. MONGELLI and GWENETH D. MONGELLI, Husband and Wife, and DEREK A. MONGELLI and DENISE A. MONGELLI, Husband and Wife, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. TRINDLE STATION, L.L.C., a Pennsylvania Limited Liability Corporation, and FRANK P. TAMANINI, Individually and As agent for TRINDLE STATION, L.L.C. DEFENDANTS NO. 06-1908 CIVIL TERM IN RE: PETITION FOR INJUNCTIVE RELIEF OPINION AND ORDER OF COURT Ebert, 1., December 29,2006. STATEMENT OF FACTS Petitioners, John and Gweneth Mongelli, of 608 Williams Grove Road, Mechanicsburg, Pennsylvania, and Derek and Denise Mongelli of915 Streamside Way, Marysvi1le, Pennsylvania, were owners of a 100 acre farm in Mechanicsburg.1 (Hereinafter "Mongelli Tract"). On November 9, 2002,2 Plaintiffs conveyed a piece of this property to Frank Tamanini, sole owner and sole member of Trindle Station, L.L.C? The conveyed property consisted of approximately 21.93 acres 4 (Hereinafter "Trindle Station Phase I" or "Phase I") and after extensive infrastructure improvements, has been converted into a very successful residential 1 Notes of Transcript held May 22 & 23, 2006, p. 5 (hereinafter "NT _"). 2 See Complaint ~ 8 3 NT 243. 4 See Plaintiffs' Petition for Injunctive Relief, Exhibits A & D 1 development. 5 The Plaintiffs now bring this action for injunctive relief alleging that the Defendant breached contractual terms from both the addendum attached to the agreement of sale for the conveyance of Phase I and the storm water management agreement associated with the 6 property. Prior to this action, the two parties had maintained a long and amicable relationship. No evidence suggests that there was any hostility between the parties as of the first agreement of sale. Rather John Mongelli stated that he had known Frank since he was in his twenties and that he had trusted him to follow through with his promises? Additionally, Frank Tamanini mentored Derek Mongelli in the real estate business8 and hired Denise Mongelli to work for him as a real estate agent and administrator.9 Between the original addendum to the agreement of sale10 and the amended addendum to the agreement of sale, 11 the Defendant agreed to perform several actions in accordance with the conveyance of the land. Plaintiffs maintain that the following obligations have not been completed: (1) The Defendant must erect a 5-wire high-tension fence along the border of Monroe and Upper Allen townships for the 20 acre tract ofland upon ground breaking12 of any proposed improvements to the land at the Defendant's sole cost and expense. 13 (2) The Defendant must, at his sole cost and expense, create a natural buffer zone of evergreen plantings to reach a minimum of five feet along the northeastern boundary at the time of excavation of each lot or common area forming this boundary. 14 5 NT 243. The property purchased was subdivided into 38 lots of about a quarter acre to a third acre generally with a few larger ones. The lots have sold for $400,000-$525,000 depending on size. See NT 245. 6 See Plaintiffs' Petition for Injunctive Relief, Exhibit B 7 NT 212-213 8 NT 16 9 NT 276-278 10 Signed by the parties on November 23,2002, See Plaintiffs' Petition for Injunctive Relief, Exhibit B. 11 Signed by the parties on May 10, 2004, See Plaintiffs' Petition for Injunctive Relief, Exhibit C. 12 Ground breaking began in late August or early September 2004. 13 The purpose of the fence was to create a buffer between the development and the agricultural tract to guarantee the tenant that his crops would not be damaged. See NT 11. See also Plaintiffs' Petition for Injunctive Relief, Exhibit B 14 See Plaintiffs' Petition for Injunctive Relief, Exhibit B 2 (3) Defendant must install sidewalk in front of Sellers' home. IS Additionally, on September 10, 2004, the parties signed a storm water easement agreement. This agreement stated that Defendant would have the right (but not the obligation) to construct a joint storm water management system at his sole cost and expense.16 The Defendant was also to have a permanent easement upon a portion of the Mongelli Tract in order to construct the storm water management system. Defendant would be responsible to restore any areas of the Mongelli Tract that might be disturbed in relation to the construction of the Storm Water Management Facility. I? The system was installed and included a large storm water retention pond which is situated on both the Mongelli and the Trindle Station Tracts. Plaintiffs are currently unsatisfied with the system and blame the development for water damage to their basement on or about August 29,2005.18 (1) The 5-Wire High Fence Originally, the 5-wire high fence was to be erected for the purpose of protecting the agricultural and cattle grazing usages of the Mongellis' land adjoining the Phase I development. The fence was not initially erected because construction equipment needed to traverse the land to excavate the storm water retention pond.19 The Plaintiffs claim that due to Defendants irresponsibility in not erecting the fence, the Plaintiffs lost a year of tenancy rent, a loss of 15 See Plaintiffs' Petition for Injunctive Relief, Exhibit C 16 See Plaintiffs' Petition for Injunctive Relief, Exhibit D, pages 2-3, ~ 4. 17 See Plaintiffs' Petition for Injunctive Relief, Exhibit D, pages 2-3, n 2-3 18 Plaintiffs' filed a Motion to Open the Record which was granted in order to clarify that the rainfall they thought took place on Labor Day 2005 in fact occurred on Aug. 29,2005. See Plaintiffs' Motion to Open the Record. 19 NT 13; See also NT 120 (The fence would have impeded the process of constructing the retention pond) 3 approximately $10,000.20 They also claim that almost 10 acres ofland was damaged by the machinery which was driven outside of the storm water easement area?l The fence remained uninstalled because the parties began negotiation on a second agreement of sale on September 10, 2004. This agreement of sale was for the conveyance of an additional 74.96 acres from the residual Mongelli Tract.22 (Hereinafter "Trindle Station Phase II"). The land to be conveyed to the Defendant included the area on which the fence was to be erected and as previously stated already had on it the partially complete storm water retention pond. The Defendant repeatedly asked the Plaintiffs if it was still necessary to erect the fence since the land was not being used for other purposes, since the fence would impede the storm water retention pond construction and since he would own the land and develop it within a relatively short period oftime.23 Defendant has testified that John Mongelli told him on several occasions that the fence was no longer necessary24 and that when Plaintiffs expressed any dissatisfaction with Defendant's fulfillment of his contractual obligations, the fence was never mentioned.2S (2) The Evergreen Barrier Tamanini admits that the evergreen buffer has not been installed, but contends that he has repeatedly attempted to fulfill his obligation in a manner which would satisfy both parties. Defendant produced many drawings of evergreens, 26 for example Douglas Firs,27 and presented them to the Mongellis, but the Plaintiffs desired Arbor Vitae, a more expensive variety of plant. 20 Plaintiffs assert that because the fence was not built, the farmer tenant did not feel comfortable entering into a land lease agreement due to the fear that his cattle or crops would be damaged by the traversing equipment. See NT 50 21 NT 51; 202. 22 See Plaintiffs' Petition for Injunctive Relief, Exhibit D, page 2, ~ F 23 Plaintiff Derek Mongelli states that he told Mr. Tamanini that he desired that the fence be put up regardless of the upcoming conveyance of Phase II and suggested that the fence have a gate for construction purposes. 24 John Mongelli maintains that he never told Tamanini that the fence need not be erected. See NT 201. 25 NT 260' 267 26 N:T: 200' 27 NT 199-200 4 The Plaintiffs did not merely want saplings (as permitted by the addendum28) but rather larger, more mature plants?9 The parties have not been able to reach an agreement as to what should be planted and thus the buffer remains uninstalled.30 (3) The Sidewalks Mr. Tamanini testified that John Mongelli communicated to him that he intended to resurface and possibly fill in portions of the driveway and put garages behind the house. Not wanting to interfere with those plans, Tamanini did not complete the sidewalk cuts at the driveway entrances to the Mongelli home but did construct a majority of the sidewalk.31 When Mr. Tamanini found out from the field workers in October 2005 that Plaintiff did indeed want the sidewalk cuts, Defendant asked that they construct the sidewalk as Plaintiffs desired. However, a disagreement between the Defendant and the construction company developed and the sidewalk cuts were not completed.32 (4) The Storm Water Management System: Construction and Grading The Plaintiffs' dissatisfaction with the storm water system began around Mayor June 2005,33 and they approached the Defendant about making improvements to the existing system. Mr. Tamanini offered to improve the system in order to please the Plaintiffs34 even though the system met the required township regulations.3s Improvements included the formation of a swale to channel waters away from the exposed lower level area of Plaintiffs' 608 Williams 28 Plaintiffs' Petition for Injunctive Relief, Plaintiffs' Exhibit B ~ 6. 29 NT 256 30 NT 200, 256-257 31 NT 190. John Mongelli rebuts Tamanini's assertion saying that when he told Mr. Tamanini that he was thinking of filling in the driveway, he merely meant to express his future ideas for his home and that such a statement had nothing to do with the current contractual obligations of the Defendant. 32 NT 98-100 33 NT 253 34 NT 191-193 35 NT 136. 5 Grove Road property as well as the construction of a storm water retention wall. 36 After the improvements were made, Plaintiffs were still unhappy with the system and requested that the retaining wall be extended and raised. John Mongelli asked for these improvements in spite of the fact that he was told by professionals that there was no need for the retention wall to be altered.37 Plaintiffs blame the supposed inadequacy of the system and the general development of the property for an alleged increased amount of water drainage into their basement. Mr. Tamanini contends that there is nothing defective or unfinished about the storm water management system. This assertion is supported by Township Engineer Rodney Moll, who approved of the system and stated that the system is currently in working order and that there is now less storm water flow to the Mongelli property than before the development began.38 Surveyor Rory Chapman confirmed this conclusion and added that storm water run-off to the Mongellis' property was greater before the development was established?9 The Mongellis' house has a driveway, garage, and basement which are significantly below grade and they were that way before the commencement of the Phase I development. The driveway descends to the basement at a significant angle and therefore will actually channel storm water runoff directly toward the basement doors. The Mongellis were doubtlessly aware of this water problem as two sump pumps were installed at the home, in 1994, many years before the development began. One of these pumps is actually outside the home in the driveway area.40 36 NT 192; See also NT 196 showing that the Plaintiff John Mongelli initially objected to the retaining wall and asked that a swale be installed. 37 NT 248-249 38 When a developer seeks to put in a development next to an existing property as is the instant case, the standard applied to determine the eligibility of a drainage plan is a comparison of the of pre-development drainage against the post -development storm water run off. If the post -development run off is equal to or less than the pre-development run off then the plan or system is considered acceptable. The system currently at issue was deemed acceptable by the developers. See NT 136. 39 NT 228 40 NT 89; 166; 197 6 Although Mr. Tamanini agreed to create the swale and the retaining wall, these two features were installed in order to appease his neighbors who were still the owners of Trindle Station Phase II which he wished to purchase and develop. Installation of these items went above and beyond his contractual obligations.41 In fact, Mr. Tamanini had the swale and retaining wall constructed according to the specifications and requests of Plaintiff, John Mongelli. 42 Additionally, Plaintiffs assert that the topsoil that was removed and excavated from the area to create the storm water basin, and that the ruts created by the equipment 43 should have been replaced, graded, or seeded44 by March 31, 2005. However, professional and expert testimony has shown that the grading surrounding the retention pond and developing areas cannot be totally completed until the development is 80% complete.4s The development is not currently at the stage for final grading, is in fine working order for the existing state, and needs no current adjustments to the grading.46 The top soil remaining on the property from the excavation of the storm water retention pond will continue to be used to complete the development. This topsoil, which resulted from the excavation of the retention basin, came partially from the Trindle Station Phase I development and partially from the Plaintiffs' retained lands.47 Defendant has used some of this soil for final grading of the lots in the development. According to Plaintiffs, the Defendant had no permission to put the topsoil where it currently resides on the 41 The total bill for the improvements was $5,926.88. 42 It is clear from testimony that the parties had a personal relationship apart from the conveyance. In fact, Defendant had acted as a mentor to Derek Mongelli as he prepared to enter the real estate business and permitted Derek to apprentice at his office in order to gain professional experience. NT 16. 43 NT 202-203 44 NT 32 45 NT 120 46 NT 111 47 NT 48 7 Mongelli Tract nor to use it for the development.48 In summer 2005, Plaintiffs placed bales of hay along the line where the 5-wire fence was to be erected. They did this to discourage others from traversing the property as well as to discourage Mr. Tamanini from taking the topsoil to place on the building lots instead of using it to rectify the Mongellis' acreage and build up the swale and stone retention wall. 49 Currently the Plaintiffs will not permit Defendant to take any more topsoil, contending that Mr. Tamanini has already taken a sufficient amount for his purposes. Plaintiff asserts that his "stuff isn't fixed" and therefore Defendant should not be allowed to take topsoil for his own use. so Re-negotiations of Terms Plaintiffs maintain that because these previously contracted obligations have not been completed, they are unwilling to convey Trindle Station Phase II.S1 Plaintiffs, during a meeting in December 2005, told the Defendant that they did not approve of the rock retention wall or the proposed trees, and that they wanted the driveway improved along with the sidewalk. S2 Plaintiffs then stated that if the Defendant desired to continue with negotiations for the conveyance of the Phase II property, new terms would need to be drawn up and that the previously negotiated price for the property would cost an additional $500,000.S3 This all came as a surprise to the Defendant. He has testified of his understandable frustrations in investing a large sum of money in the elaborate storm water management system that Plaintiffs wanted, as well as in the development itself, only to suddenly be told that the conveyance needed to complete the project would not be going through and that the process must begin again from the beginning. S4 48 NT 48-49; Rodney Coy, however, states that the topsoil placement was prearranged; See also NT 118. 49 NT 47 50 NT 205 51 NT 261 52 NT 260 (At this time the fence erection was not discussed.) 53 See NT 187 54 See NT 260 8 Defendant believes that the Mongellis simply desire to obtain more money from the Phase II conveyance due to the success of the Phase I development. DISCUSSION - INJUNCTIVE RELIEF Petitioners have requested a preliminary injunction enjoining the Defendant from conveying any more lots from Trindle Station Phase I. The single objective of a preliminary injunction is to preserve the subject of the controversy in the condition in which it is when the order is made, the intent being to maintain the existing status until the merits of the controversy can be fully heard and determined. Philadelphia Fire Fighters' Union, Local 22, Intern. Ass'n of Fire, 901 A.2d 560, 565 (Pa.Cmwlth. 2006), citing Chipman v. Avon Grove Sch., Dist., 841 A.2d 1098, 1101 (Pa.Cmwlth.), appeal denied. See also Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277, 1286 (1992) (The purpose of a preliminary injunction is to preserve the status quo as it exists or previously existed before the acts complained of, thereby preventing irreparable injury or gross injustice). The appropriateness of injunctive relief is well established in Pennsylvania. Injunctive relief is appropriate only in circumstances in which there is no adequate remedy at law. The Woods at Wayne Homeowners Ass'n v. Gambone Bros. Const. Co., Inc., 893 A.2d 196,204 (Pa.Cmwlth. 2006). Injunction is a harsh equitable remedy and should therefore be issued only when and if each element has been fully and completely established. City of Philadelphia v. Com., 837 A.2d 591, 598 (Pa.Cmwlth. 2003). The burden is on the party who requested injunctive relief to prove the following six essential prerequisites: (1) The injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages; 9 (2) Greater injury would result from refusing an injunction than from granting it, and, concomitantly, issuance of an injunction will not substantially harm other interested parties in the proceedings; (3) Ar1 injunction will properly restore the parties to their status immediately prior to the alleged wrongful conduct; (4) The activity to be restrained is actionable, the right to relief is clear, and the wrong is manifest, or, in other words, the party seeking the injunction is likely to prevail on the merits; (5) The injunction is reasonably suited to abate the offending activity; and (6) Ar1 injunction will not adversely affect the public interest. Warehime v. Warehime, 580 Pa. 201, 860 A.2d 41,47 (2004), citing Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount Inc., 573 Pa. 637, 828 A.2d 995, 1000 (2003). Because the Mongellis have failed to establish each of the six elements requisite for the issuance of an injunction, the petition is denied. A. Element No# 1: Immediate and Irreparable Harm Primarily, the moving party must prove that the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages; Injury is "irreparable," as required for an injunction if it will cause damage which can be estimated only by conjecture and not by accurate pecuniary standard. Sovereign Bank v. Harper, 449 Pa.Super. 578, 674 A.2d 1085, 1091 (1996.) Additionally, the harm must be irreversible before it will be deemed "irreparable." Id at 1093, citing Boehm v. University of Pennsylvania School of Veterinary Medicine, 392 Pa.Super. 502, 573 A.2d 575, 586, appeal denied. Plaintiffs have asserted that they will suffer immediate and irreparable harm unless Defendants are enjoined from conveying any additional lots to any other party until Defendant performs its obligations to them. ss This assertion is premised on the argument that, should the 55 See Plaintiffs' Proposed Conclusion of Law ~ 1. 10 Defendant be permitted to continue to convey lots out of its name without performing its prior obligations to Plaintiffs, the courts will be unable to grant relief because current and future owners of the conveyed lots will have no obligation to Plaintiffs to meet the terms established b h . S6 etween t e partIes. Plaintiffs' argument is based upon the doctrine of merger. Merger normally applies to warranties of title and holds that all warranties and representations in connection with a sale or other transaction made prior to or contemporaneous with a deed are merged into the deed and that, unless therein expressly provided for, they are forfeited. Wade v. Huston, 877 A.2d 464, 465 (Pa. Super. 2005). The doctrine does not apply if the intention of the parties is otherwise, or if the stipulations in the contract sought to be enforced are collateral to the functions performed by the deed. Carsek Corp. v. Stephen Schifter, Inc., 431 Pa. 550, 558-59,246 A.2d 365, 370 (1968). The term "collateral" is defined as, "supplementary; accompanying, but secondary and subordinate to; not direct in line, but on a parallel or diverging line." Blacks Dictionary, ih Ed. (1999). In Dick v. McWilliams, the Pennsylvania Supreme Court found that an agreement to complete a building was of a different nature than the deed and was collateral to the agreement to sell; thus the obligation was not merged into the deed. Dick v. McWilliams, 291 Pa. 165, 139 A. 745 (1927) ("[W]hile the agreement to sell was merged in the deed, it was not merged as to that 'which was not to be consummated by deed, and which was of an entirely different nature, and collateral to it"'). As in Mc Williams, the obligations of the Defendant found in the addendum are collateral to the main function of the agreement and therefore would not be merged into any subsequent agreement. Accordingly, Plaintiffs would not lose any legal remedy for breach of contract upon 56 See Plaintiffs' Petition for Injunctive Relief ~ 43. 11 conveyance of the land. See Carsek Corp. v. Stephen Schifter, Inc., 431 Pa. 550, 559,246 A.2d 365, 370 (1968) ("The fact that the stipulations are collateral to the functions of the deed gives rise to the inference that the parties did not intend that the stipulations merge into the deed"). Even if the terms were not considered to be collateral to the conveyance, the doctrine of merger would still not apply, as it is clear from Mr. Tamanini's conduct that he intended to comply with all of the terms of the agreement between the parties. His compliance with the terms of the contract has continued despite the fact that he has already conveyed several lots on the Trindle Station Phase I tract. Testimony and evidence has shown that Mr. Tamanini has presented several drawings of saplings for the evergreen buffer, maintained the storm water management system beyond the requirements of the agreement, remained in continual contact with the Mongelli family, and attempted in other ways to fulfill his obligations. Such behavior supports the inference that Mr. Tamanini did not intend to shirk his contractual obligations to the Mongellis through subsequent conveyance of the land. Clearly, logic and common sense establish the fact that the Defendant has always desired to deal with the Mongelli family in a fair and supportive manner. As a developer, Mr. Tamanini has expended a great deal of money in order to establish the infrastructure for the Trindle Station project. He cannot maximize his investment unless he develops the Trindle Station Phase II tract. Clearly, both of these parties initially wanted to work together to develop Trindle Station, otherwise the storm water retention pond would not have been partially built on the Mongelli tract which is scheduled to become Trindle Station Phase II. Logically, the Defendant would not antagonize the Mongellis over such matters as evergreen buffers and sidewalk cuts. Equally important is the fact that the evidence at the hearing clearly established that the water damage caused on August 29, 2005, was the result of an unusually heavy rain and the already 12 questionable design of the Mongellis' driveway which directly channels storm water toward the basement doors. Apart from the fact that the doctrine of merger does not apply to this situation, Plaintiffs are not in danger of suffering irreparable harm as each of the requests for performance could be compensated through monetary damages. Plaintiffs could have easily fulfilled the obligations themselves and brought this action in order to recover the costs and damages. S7 Accordingly, because the doctrine of merger does not apply to this case and since Plaintiffs could obtain relief through monetary damages, this Court finds that no irreparable harm to Plaintiffs exists. B. Element # 2: Greater in;urv Despite the fact that Plaintiffs have failed to satisfy the first requisite of injunctive relief, the obvious failure to establish this second element of greater injury warrants the rejection of the petition for injunctive relief. Plaintiffs ask this Court to enjoin the Defendant from continuing his construction of a two stage luxury home development in which he has expended large sums of money in infrastructure due to the fact that they have not received an evergreen buffer to their satisfaction, that the township approved storm water system is not to their liking, that they do not have the temporary fence that they asked for (but which Defendant can later tear down), that their driveway cuts are not completed, and that the Defendant has not yet graded the topsoil mound (which, as has been established by testimony, cannot be used until more houses are completed). In weighing the benefits to the Plaintiff against the hardships which would be 57 See The Woods at Wayne Homeowners Ass'n v. Gambone Bros. Const. Co., Inc., 893 A.2d 196 (Pa.Cmwlth. 2006). (Injunctive relief is appropriate "where there is no adequate remedy at law.) 13 caused to the Defendant, it is clear that greater injury would result from issuing an injunction than from granting it and therefore element #2 is unsatisfied. S8 As it is clear that each of the elements cannot be proved, the Court need not consider the remaining elements of the statute, and the petition for injunctive relief is denied. This Court finds that Plaintiffs are not entitled to equitable reliefbecause Defendant was always prepared to perform the agreed upon terms. He clearly attempted to accommodate Plaintiffs as both a friend and a businessman. Plaintiffs have not so reciprocated Defendant's professionalism or good will. Rather, the evidence supports the contention that as Trindle Station Phase I progressed and proved financially profitable it became evident to the Plaintiffs that they may be in a position to demand more compensation for the remaining property that would make up Trindle Station Phase II. The Plaintiffs claim of breach of the first agreement and their demand for $500,000.00 more for the transfer of the second tract supports the contention the Plaintiffs' intent was to use the Defendant's failure to perform the relatively minor uncompleted tasks as grounds to nullify the second agreement for transfer of the Trindle Station Phase II property, and to supply them with leverage to demand more compensation for the remaining property. Requiring the Defendant to perform any further obligation to the Plaintiffs would not uphold justice but would instead support and condone such negotiating tactics on the part of the Plaintiffs. The Petition for Injunctive Relief is therefore appropriately denied. 58 See Moyerman v. Glanzberg, 391 Pa. 387, 138 A.2d 861 (1958). (An injunction is inappropriate when, though it will provide a remedy to the petitioners, it will do far more mischief to defendant and cause more injury than loss.) 14 ORDER OF COURT AND NOW, this 29th day of December, 2006, upon consideration of the Plaintiffs' Petition for Injunctive Relief, the Defendant's Answer thereto, and after Plenary Hearing in the matter; IT IS HEREBY ORDERED AND DIRECTED that the Plaintiffs' Request for Injunctive Relief is DENIED. By the Court, M. L. Ebert, Jr., 1. Nathan C. Wolf, Esquire Attorney for Plaintiffs Brian C. Caffrey, Esquire Attorney for Defendant 15