United States District Court, E.D. Pennsylvania
RICHARD GIULIANI, SR. and RICHARD GIULIANI, JR.
SPRINGFIELD TOWNSHIP, et al.
case before me involves a longstanding and ongoing dispute
concerning the use of a 5.29-acre property located at 50
Oreland Mill Road in Springfield Township, Pennsylvania. The
owners of the property, plaintiffs Richard Giuliani, Sr. and
Richard Giuliani, Jr., bring this federal suit against
defendants Springfield Township, Springfield Township Board
of Commissioners, Springfield Township Zoning Hearing Board,
Commissioner Glen A. Schaum, Commissioner Jeffrey T.
Harbison, Commissioner Baird M. Standish, Commissioner Robert
E. Gillies, Jr., Commissioner Alison McGrath Peirce,
Commissioner James E. Dailey, Commissioner Douglas J. Heller,
Township Manager Donald Berger, Zoning Officer Robert Dunlop,
Code Enforcement Officer and Fire Marshal Charles H. Baily,
Code Enforcement Officer and Fire Marshal Richard Lesniak and
the Township's Consulting engineer Amy Riddle Montgomery,
P.E. The complaint seeks relief under 42 U.S.C. § 1983
for violations of plaintiffs' procedural due process
rights, substantive due process rights and equal protection
rights. In addition, plaintiffs allege a conspiracy pursuant
to 42 U.S.C. § 1985(3), as well as a state law claim for
tortious interference with actual and prospective relations.
After extensive discovery, defendants now move for summary
judgment on all claims. For the following reasons, I will
grant the motion and enter judgment in favor of all
defendants in this case.
History of the Property
originally purchased the property at 50 Oreland Mill Road in
Springfield Township, Pennsylvania on September 12, 1996,
from Penn Valley Plywood. Pls.' Opp'n Summ. J., Ex.
B, at No. 6; Pl's Opp'n Summ. J., Ex. C, at No. 6.
The property is a 5.29-acre tract, predominantly zoned for
industrial use with three principal structures: a two-story,
5, 400 square foot office building, a 32, 800 square foot
warehouse and a 4, 000 square foot Quonset hut. Defs.'
Mot. Summ. J., Ex. 4, Dep. of Richard Giuliani, Jr. (Giuliani
Jr. Dep.), 63:7-66:6 (approximating sizes). While the
property was owned by Penn Valley Plywood, a portion of it
was used for Penn Valley's own manufacturing business,
and other portions were leased to multiple tenants including
Edge Transportation, David Kale t/a Kale Design, Robert
Forrester, Felwick Fire Association and Glenn Schaum.
Giuliani Jr. Dep. 63-80; Pls.' Opp'n Summ. J., Ex. E.
plaintiffs obtained ownership of the property on September
12, 1996, they continued the leases of those existing tenants
and leased back a portion of the property to Penn Valley
Plywood, Inc. Giuliani Jr. Dep. 88:6-89:13. According to
plaintiff Richard Giuliani, Jr., prior to entering the
agreement of sale, he spoke with the building inspector and
code enforcer at the Springfield Township municipal office,
Richard Lesniak to ask if there was anything he should know
about the property, and Lesniak said no. Id. at
21:7-21. Township Manager Donald Berger testified that, in
1996, the Township was not aware of the presence of tenants
at the property. Defs.' Mot. Summ. J, Ex. 5, Dep. of
Donald Berger (Berger Dep.), 686:2-687:3. He further
explained that, to his knowledge, Penn Valley Plywood had
never applied for land development approval or for use and
occupancy permits for any of the tenants that were there on
September 12, 1996. Id. at 687:4-14.
Tenants on the Property After Plaintiffs Acquired It
retained M.M. Collins to provide property management services
for the property. In that capacity, M.M. Collins sent several
communications to Glenn Schaum, who was the
secretary/treasurer of the Fellwick Fire Association,
regarding Fellwick's and Schaum's delinquent rent
from late 1996 into 1997. Pls.' Opp'n Summ. J. Summ.
J., Ex. I, Dep. of Glen Schaum (Schaum Dep.) 22:19-23:20;
Pls.' Opp'n Summ. J., Exs. J, K, L and M. Ultimately,
plaintiffs, through M.M. Collins, gave notice of their
intention to institute eviction proceedings against Fellwick
Fire Association and Schaum, but never carried out the
eviction because Fellwick Fire Association vacated the
property voluntarily without paying the back rent. Defs.'
Mot. Summ. J., Ex. 13, Dep. of Richard Giuliani, Sr.
(Giuliani, Sr. Dep.) 54:1-18. Schaum was subsequently elected
to the Springfield Township Board of Commissioners in 1997,
and served as its Vice President from 2000 to 2003, and as
its President from 2004 to 2005. Schaum Dep. 39-45.
then either terminated the leases of the five
“transition” tenants or the tenants left the
property on their own. Thereafter, plaintiffs leased portions
of the property to additional tenants who occupied the
property at various points in time from 1998 to the present.
They include: Elite Limo (lease date 5/30/98); McNamara
Masonry Restoration (oral lease in 1997; returned in 2010);
James A Grundy Agency, Inc. (lease date 5/13/98); Belcher
Roofing Corporation (lease date 1998); Iggy's Landscaping
(oral lease); RMG General Contractors (oral lease); E-Pak
Technologies (lease date 9/1/01 to 2003); Leary Trucking and
Paving, Inc. (lease date 1/15/02, vacated then returned;
presently a tenant); PennMark Auto (lease date 4/15/03 to
2008); Alan A. Myers, Inc. (lease date 1/28/04 to 2006);
First Student (lease date 7/1/09 to 9/1/13); Cheltenham
Transportation (lease date 9/13 to present); and Green
Lighting and Paper (lease date 6/10/10 to 12/13). Giuliani
Jr. Dep. 108-124, 138-204.
Plaintiffs' Early Land Use Applications to the
13, 2000, plaintiffs submitted a formal subdivision
application for the property, proposing a four-lot
subdivision. Pl.'s Opp'n Summ. J., Ex. N. The
proposal called for one lot at the front which would keep the
existing office building, a second lot behind it where the
warehouse was located and one or two residential lots on Lynn
Avenue. Id. The prospective purchaser of the second
warehouse lot was the New Life Presbyterian Church. At some
point, however, the church pulled out of the negotiation, and
plaintiffs opted not to subdivide. Giuliani, Jr. Dep.
mid-2001, plaintiffs sought to rent a portion of the property
to Romano's School Bus Service for storage and parking of
school buses. According to the lease between plaintiffs and
Romano's, plaintiffs were required to do some relatively
small paving. On July 6, 2001, plaintiffs' consulting
engineer, Anthony John Hibbein, P.E., sent a letter to Code
Enforcement Officer/Fire Marshal Richard Lesniak advising
that plaintiffs proposed to pave 9, 500 square feet of the
property. Defs.' Mot. Summ. J., Ex. 11. The letter
stated, “[p]lease review the enclosed schematic and let
me know how the township would like to procedurally handle
this matter.” Id. Lesniak raised the matter
before the Township staff meeting and, in a letter dated July
13, 2011, explained that it was “the consensus of the
staff members that a full land development plan should be
prepared for the subject property.” Defs.' Mot.
Summ. J., Ex. 12. On August 6, 2001, Richard Collier,
plaintiffs' consulting land planner, wrote to Lesniak
stating that plaintiffs no longer wished to lease the
property for bus operations and, therefore, were not going to
pursue the prior application for subdivision any further.
Defs.' Mot. Summ. J., Ex. 10. In that same letter,
Collier said that plaintiffs intended to lease the two
existing buildings to a new tenant who would use them as an
office and warehouse. Id.
Defendants' Alleged Harassment and Citation of
to plaintiffs, shortly after their purchase of the property,
Township vehicles began to show up on the property
constantly. Giuliani Jr. Dep. 539:2-21. Giuliani Jr. recalled
that when plaintiffs engaged in initial efforts to clean up
the property, Detective William Householder and other
Township officials came to the property just to inspect their
efforts. Id. at 539:14-540:4. Plaintiffs later
learned that Detective Householder lived on the street
immediately behind the property and, in May 1998, was elected
as the District Justice for District No. 38-1-08 in
Montgomery County, a district that included the property.
Defs.' Mot. Summ. J., Ex. B ¶ 57 & Ex. C ¶
January 2001, Lesniak sent a letter to Giuliani Jr.
confirming that during a recent telephone conversation,
plaintiffs were informed that they would have to remove
trailers stored at the property. Pl.'s Opp'n Summ.
J., Ex. P. At a routine inspection in the area on January 24,
2001, however, Township officials noted that the trailers had
not been removed and plaintiffs were in violation of Section
114-137C of the Springfield Township Code. Id.
Accordingly, Lesniak instructed plaintiffs to remove the
trailers within fifteen days. Id. Plaintiffs
contended that the storage of the trailers was permitted by
the Code because they were used by their own company in the
ordinary course of business operations. Pl.'s Mem. Supp.
Opp'n Summ. J. 8.
October 2001, plaintiffs received a citation for allegedly
failing to obtain building permits for maintenance and repair
work. Defs.' Mot. Summ. J., Ex. 1. Plaintiffs paid the
fine without contest in court and filed an application for
building permits in May 2001. Pls.' Opp'n Summ. J.,
December 13, 2001, one of plaintiffs' then-tenants, E-Pak
technologies, received a letter from the Township regarding
an anonymous complaint about “illegal rubbish”
stored on the property. Pls.' Opp'n Summ. J., Ex. T.
The letter stated that “the Township will not collect
these items. You are responsible to have them removed by a
private contractor. Please have this situation corrected
within 5 (five) days of receipt of this letter otherwise
further enforcement action may be taken.” Id.
Dispute Over Plaintiffs' Failure to Submit a Land
November 19, 2001, Code Enforcement Officer Lesniak received
a memorandum from Township Manager Donald Berger advising he
had been informed, and later observed, that the property was
being used by two commercial enterprises. Defs.' Mot.
Summ. J., Ex. 19. As a result, on December 5, 2001, Lesniak
sent a letter to Giuliani Jr. stating that plaintiffs were
required to submit a formal land development plan because of
multiple leaseholds on the property. Defs.' Mot. Summ.
J., Ex. 6. The letter explained that the Township was
“in receipt of complaints regarding an increased amount
of business activity at the above referenced property.”
Id. Mr. Lesniak also remarked, during his
inspection, that the office building was occupied by a tenant
and at least two businesses occupied the warehouse.
Id. Defendants assert that, until that time, the
Township defendants, with perhaps the exception of Glenn
Schaum,  were unaware that plaintiffs had multiple
tenants on their property.
January 2002, Lesniak requested Berger give him an update as
to the status of the “Giuliani development on Oreland
Mill Road.” Defs.' Mot. Summ. J., Ex. 19. Berger
responded, on February 4, 2002, that “Rick Collier is
in the process of preparing plans for the subject property. I
spoke with Rick on Friday 2/1/2 and he will be sending a
letter confirming he is working on the plan.”
Id. The next day, Collier sent Lesniak the promised
letter noting he was working on a plan for the property that
included use of the office and warehouse space. Defs.'
Mot. Summ. J., Ex. 20. Collier stated there were three
tenants on the property at the time including: E-Pak, a
company that assembles and installs mechanical systems; a
roofing contractor that was using the warehouse for storage
of roofing materials; and a landscape and lawn maintenance
company that was temporarily parking two to three trucks on
the property during non-business times and occasionally
cutting and splitting firewood on site. Id.
March 8, 2002, the Township issued a citation to plaintiffs
for failure to submit a land development plan prior to
allocating space among occupants for the purpose of creating
a leasehold. Defs.' Mot. Summ. J., Ex. 14. Plaintiffs
paid the resulting fine. Giuliani Sr. Dep. 126-29.
six months later, on July 31, 2002, Collier submitted a
sketch plan for the property. Defs.' Mot. Summ. J., Ex.
21. He explained that plaintiffs' goal was to create a
flex-office complex that retained the existing brick office
building and the large warehouse occupied by EPAC, and to add
some new structures for flex-office. Id.
Additionally, plaintiffs intended to address related needs
including vehicular access, stormwater management and
parking. Id. Collier requested the opportunity to
appear before the Planning Commission for informal discussion
in early September. Id. There is no further evidence
regarding the sketch plan.
the Township's repeated instructions that plaintiffs
needed land development approval for their intended use of
the property, plaintiffs did not submit a land development
application throughout the remainder of 2002 or well into
2003. During that time, plaintiffs continued to lease
portions of the property to new tenants without applying for
use and occupancy permits. For example, in April 2003,
plaintiffs leased half of the warehouse to PennMark Auto for
the detailing of Mercedes Benz automobiles. Defs.' Mot.
Summ. J., Ex. 23. In addition, beginning in January of 2002,
plaintiffs leased a portion of the property to Ron Leary
Trucking and Paving Company. Defs.' Mot. Summ. J., Ex.
1, 2003, Berger sent a letter to plaintiffs stating:
It is my understanding that for some time now you have leased
space in more than one building at the above location, which
constitutes a land development as defined by the Pennsylvania
Municipalities Planning Code and the Springfield Township
Code. I also understand that for a great length of time you
have promised to fulfill your obligations under the two
aforementioned pieces of legislation by providing a formal
land development plan and application related to 50 Oreland
I know Richard Lesniak, Code Enforcement Officer/Fire
Marshal, has attempted to work with you and your consultants
in formulating a plan, but such a plan still does not exist.
Please accept this letter as formal notice that if a formal
land development application is not received by Springfield
Township on or before July 31, 2003, Springfield Township
will commence enforcement actions to further encourage you to
fulfill your obligations under the law.
Pls.' Opp'n Summ. J., Ex. U.
of filing an application for land development, however,
plaintiffs filed a zoning application on August 29, 2003,
requesting a variance from the zoning requirements with
respect to parking at the site. Defs.' Mot. Summ. J., Ex.
25. Thereafter, plaintiffs requested multiple continuances of
the Zoning Hearing Board hearings, which prompted defendants,
on October 13, 2003, to send a letter to plaintiffs'
counsel stating, “[i]n light of the extended nature of
the continuance request, and the Township's concern about
the existing number of tenants at the site, please confirm
that the applicants agree to notify the Township if they
intend to or do in fact engage in any discussions
contemplating new tenants or replacing existing tenants on
their property . . . between now and the December zoning
hearing.” Defs.' Mot. Summ. J., Ex. 26. The
Township and plaintiffs' attorneys orally discussed this
letter and plaintiffs agreed to an “after the
fact” notification of any new tenants. Pls.'
Opp'n Summ. J., Ex. HH. In a letter dated October 23,
2003, the Township clarified it wanted notification in
advance of the consummation of any agreement with a new
tenant or the replacement of an existing tenant. Id.
It justified this demand based on plaintiffs' recent
attempts to lease space at their site for the staging of
recycling trailers despite their awareness that the Township
required submission of a land development application for
each new tenancy. Id. By way of responsive letter
dated November 7, 2003, plaintiffs' counsel denied that
plaintiffs had attempted to lease the property without first
checking with the Township, but nonetheless agreed to inform
the Township if they engaged in “serious
discussions” with a new tenant for leasing space at the
property. Defs.' Mot. Summ. J., Ex. 27. The author of the
Township's letters, Joseph Bagley, could not recall the
Township ever requiring similar notice from any other
property owner in Springfield Township. Defs.' Mot. Summ.
J., Ex. 28, Dep. of Joseph Bagley (Bagley Dep.), 94:1-9.
November 24, 2003, Lesniak sent another letter to plaintiffs
on behalf of the Township because he believed plaintiffs had
continued to commit violations of the Property Maintenance
Code and the Springfield Township Code. Defs.' Mot. Summ.
J., Ex. 29. The letter listed the multiple property
maintenance violations, the relevant code provisions and
plaintiffs' violations resulting from allocation of land
on the property for multiple tenants including Ron Leary
Paving Company, E-Pak Technologies, Inc., Iggy's
Landscaping and PennMark. Id. The letter concluded
by notifying plaintiffs that they had thirty days to complete
all repairs and improvements required to bring the property
into compliance, and could seek a modification or withdrawal
of the Notice and Correction Order by petitioning the Board
of Commissioners. Id.
result of this letter, Collier e-mailed plaintiffs'
counsel with a proposed course of action, recommending
plaintiffs: (1) assess and fix the property violations; (2)
withdraw the current zoning application
“immediately”; and (3) address leaseholds.
Defs.' Mot. Summ. J., Ex. 30. He noted that Ron Leary
Paving was already gone; E-Pak had vacated the property;
Iggy's Landscaping had already vacated; and plaintiffs
had presumably not gotten permission for the R&S lease
and were in violation of the Township Code. Id.
Finally, Collier noted that, in retrospective, plaintiffs
should have concurrently filed the application to the zoning
board for a variance and the application for land development
of the entire site. Id.
February 2004, plaintiffs submitted a land development
application to the Township seeking only to lease the
existing office building and space within the warehouse to
new and existing tenants without any new construction.
Defs.' Mot. Summ. J. Ex. 33. Township Engineer Amy Riddle
Montgomery, P.E. reviewed the plan submission and issued a
letter identifying the ways in which the plan did not comply
with applicable Township ordinances. Id. She
understood that part of what plaintiffs wanted to do was to
continue the existing use of their property. Pls.'
Opp'n Summ. J., Ex. JJ, Dep. of Amy Riddle Montgomery
(Montgomery Dep.) 173:14-17. The Montgomery County Planning
Commission also reviewed the application and plans and, by
way of letter dated March 24, 2004, recommended approval of
the plan “provided that it complie[d] with [the
Township's] municipal land development and all other
appropriate regulations.” Defs.' Mot. Summ. J., Ex.
34. The letter further stated that “the plan review
comments and recommendations contained in this report are
advisory to the municipality and final disposition or the
approval of any proposal will be made by the
municipality.” Id. The Township's Planning
Commission reviewed the plan on April 6, 2004. Defs.'
Mot. Summ. J., Ex. 35.
Township Engineer Montgomery's initial review letter,
plaintiffs submitted a revised plan to address and correct
the items she identified as problematic. Montgomery completed
a second review and offered a series of zoning ordinance,
subdivision and land development ordinance comments, all of
which she recommended be addressed to the satisfaction of
Springfield Township prior to approval of the land
development project. Pls.' Opp'n Summ. J., Ex. LL. In
response, plaintiffs submitted a second revised plan.
Defs.' Mot. Summ. J., Ex. 37. This revision prompted a
third review letter from Montgomery dated August 4, 2004,
again offering multiple comments on the revised plans.
Defs.' Mot. Summ. J., Ex. 38. Collier testified that the
submission of multiple revised plans was very typical in the
land development process and Montgomery's reviews were
typical of township engineer reviews in a land development
submission. Collier Dep. 138:7-142:13. Montgomery also
concurred that her reviews were very typical of any other
land development plan, subdivision plan or zoning review.
Montgomery Dep. 251:17-252:9.
the pendency of the land development application, Code
Enforcement Officer/Fire Marshal Lesniak requested that
plaintiffs permit him to conduct a use and occupancy
inspection of the property in connection with plaintiffs'
April 30, 2004 request for use and occupancy certificates for
PennMark, Alan Myers Company and Leary Paving. Defs.'
Mot. Summ. J., Exs. 40, 41, 42. Lesniak performed his
inspection of the property and its buildings and, on June 28,
2004, issued a report identifying numerous code violations
that needed correction prior to issuance of use and occupancy
permits for those tenants. Defs.' Mot. Summ. J., Ex. 43.
particular item-the required fire suppression system-became a
point of contention between the parties. When PennMark
originally occupied the space in April 2003, its activities
were limited to car detailing. By the time of the use and
occupancy inspection, however, PennMark had taken over the
entire warehouse and installed lifts in a portion of the
facility to perform automotive repairs. Defs.' Mot. Summ.
J., Ex. 44. As a result, Lesniak, in consultation with the
Fire Marshal of Upper Dublin Township, required that a fire
suppression system be installed in the warehouse. Defs.'
Mot. Summ. J., Ex. 43. Plaintiffs objected to that
determination and filed an appeal of Lesniak's decision
to the Board of Commissioners. Lesniak responded, arguing
that “[b]ased on the multiple uses, the size of the
building, and the potential that a large fire could occur
within the structure, I strongly urge the Board of
Commissioners to uphold the Township Code and require the
building to be equipped with a fire sprinkler system.”
Pls.' Mot. Summ. J., Ex. WW. The appeal proceeded
alongside the land development application through the summer
and fall of 2004.
attorney, Christine M. Kimmel, sought to address the Board of
Commissioners at their August 9, 2004 workshop meeting to
discuss the pending land development application. Pls.'
Opp'n Summ. J., Ex. NN. The Board, presided over by
Schaum, suggested that counsel not attend due to “other
issues” to be discussed by the Board. Id.
Kimmel subsequently attended the general meeting on August
11, 2004, and requested guidance from the commissioners on
the land development plan. Id. Township Manager
Berger remarked that his staff had been provided guidance by
the Board and was willing to meet with plaintiffs'
counsel directly following the meeting to offer more detailed
information. Id. In an August 16, 2004 letter, the
Township agreed to drop or modify certain of the conditions
identified in Montgomery's August 4, 2004 letter, but
required plan revision with respect to several of the other
items. Pls.' Mot. Summ. J., Ex. OO.
receipt of that letter, Collier believed that, except for the
fire protection issue, plaintiffs had answered the questions
raised in the review letter to Montgomery's satisfaction
and “other than these few remaining comments, we were
near to complete the review process and could expect
approval.” Collier Dep. 149:16-24. He surmised that he
and plaintiffs needed to make only a few more adjustments,
which would take less than a week to complete. Id.
at 150:7-12. In late August 2004, however, after Collier had
already prepared the reply to the few items remaining on
Berger's letter, plaintiffs requested that Collier make
no further changes. Id. at 152:6-23. Collier
believed plaintiffs knew that approval was close, but
testified that they gave him no reason for the decision to
stop work. Id. at 153:4-15. At that point, Collier
ceased his work for plaintiffs. Id. at 154:19-24.
plaintiffs stopped all progress on both the land development
plans and the fire suppression system, counsel Kimmel
continued to seek extensions of time to act on the plans and
the appeal. By way of an October 12, 2004 letter from
Township solicitor James Garrity to Kimmel, the Township
explained that it would accept extensions of time for the
ninety-day land development review period. He cautioned,
however, that if substantial progress with respect to the
filing of satisfactorily-revised land development plans and
the amicable resolution of the Code Enforcement Appeal was
not made by the time of the Commissioners' meeting in
November, the Board would deny any further extensions of time
and would render decisions on both the application and appeal
based on the paperwork in the file at that time. Defs.'
Mot. Summ. J., Ex. 47. At the October 13, 2004 Board of
Commissioners' meeting, the Board extended the ninety-day
land development plan review period until November 30, 2004
to provide plaintiffs the opportunity to bring the land
development plans into compliance with the Township Code.
Pls.' Opp'n Summ. J., Ex. PP.
Board of Commissioners' Denial of Plaintiffs' Land
Development Application and Affirmation of the Fire
Marshal's Decision Requiring a Fire Suppression
November 8, 2004 meeting of the Township Board of
Commissioners, the Board denied plaintiffs' application
for land development. Defs.' Mot. Summ. J., Ex. 48. In a
November 17, 2004 letter to Kimmel, Berger set forth nine
reasons for the denial. Defs.' Mot. Summ. J., Ex. 49.
Several of these reasons were conditions that Township had
agreed to abandon in its August 16, 2004 letter.
Id.; Pls.' Mot. Summ. J., Ex. OO. At the same
meeting, the Board also affirmed the Fire Marshal's
decision requiring a fire suppression system based on
Lesniak's August 11, 2004 memorandum describing his
investigation. Defs.' Mot. Sum. J., Exs. 48, 50. On
December 3, 2004, the Township sent plaintiffs a cease and
desist letter explaining that “because a land
development plan has not been approved by the Springfield
Township Board of Commissioners and because a fire
suppression system has not been installed, this letter is to
provide notice that you and R&S Imports Ltd., Leary
Paving, Pennsylvania Department of Transportation, and Allan
Myers Construction have no right to lease or occupy any
building or portion of the property after receipt of this
notice for any reason.” Pls.' Opp'n Summ. J.,
Ex. SS. The Township Solicitor sent a follow up letter on
December 23, 2004. Pls.' Opp'n Summ. J., Ex. TT.
appealed the decisions of the Board of Commissioners to the
Court of Common Pleas of Montgomery County. Defs.' Mot.
Summ. J., Ex. 51. In January 2005, the Township filed an
equity action against plaintiffs seeking a court order
directing plaintiffs to cease and desist leasing the property
to multiple tenants until the plaintiffs had complied with
the law and secured an approved land development plan.
Defs.' Mot. Summ. J., Ex. 52.
to the commencement of the equity action by the Board of
Commissioners, the parties entered into an agreement before
the Honorable Joseph A. Smythe on February 10, 2005.
Defs.' Mot. Summ. J., Ex. 53. The parties reached the
1. PennMark Auto Group, IV, LP would use only 7, 000 square
feet of the warehouse for auto repair.
2. PennMark would construct or erect some type of a barrier
for segregating or segmenting the auto repair business from
the rest of the building. Subsequently, plaintiffs'
attorney secured a stipulation that the barrier existing
between the two distinct uses in the facility in the
warehouse was already in place and satisfactory to the
3. PennMark would vacate the building at the end of the
initial term of their current lease, which is April 2006. If
they wished to renew their lease or move back into the
building, they needed to apply for a use and occupancy permit
from Springfield Township.
4. Any other tenant moving into the building from then on
would have to apply first or the landlord would have to apply
for a use and occupancy permit for the new tenants and have
to obtain that permit before the tenant could obtain
5. Plaintiffs would install a fire detection system. They
would submit plans for the fire detection system within
forty-five days of the present date to the Township fire
marshal for his review and approval. If plaintiffs and the
fire marshal could not reach an agreement on the design of
the fire detection system, the Township reserved the right to
re-apply to the court for a conference to try to work out
those disputes. This stipulation was subsequently modified so
that both parties agreed to the National Fire Protection
Association 72 Manual standards.
6. Plaintiffs would have an access driveway from the building
to Lynn Avenue. Plaintiffs would maintain that access
driveway free from obstructions and maintain it at a width of
twenty-four feet for access for fire and emergency vehicles.
7. Plaintiffs would provide a detailed site and building
floor plan for both buildings in question prepared by a
professional indicating all utility shut offs, fire alarm
panels and other facilities and utilities necessary for the
fire department to fight a fire in the buildings.
8. Plaintiffs would take care of all of the other use and
occupancy issues that were listed in a notice from the code
enforcement officer in June 2004.
9. The pending land use appeal, filed under a different
docket number, would be severed from the code appeal. The
land use appeal would proceed to briefing an argument by the
parties; and the aspect of the present motion for preliminary
injunction having to do with the land development approval
would be stayed until a final order in that other Court of
Common Pleas matter proceeded to a final order.
10. The Township would withdraw the currently outstanding
citations with respect to the property at 50 Oreland Mill
Road and the Township would also issue a letter to that
effect that those citations were withdrawn.
land use appeal proceeded in the same court under docket
number 04-32385. On October 24, 2005, a two-judge panel
entered an order affirming the decision of the Board of
Commissioners with regard to the denial of the land
development application. Defs.' Mot. Summ. J., Ex. 54.
court took up the remainder of the Township's equity
complaint in Civil Action No. 05-01504 and entered an order
on March 22, 2006 on the Township's motion for
preliminary injunction. Defs.' Mot. Summ. J., Ex. 55. The
order directed plaintiffs to cease and desist from entering
into any leases or lease extensions, except as set forth
therein, with tenants or potential tenants until plaintiffs
filed a land development application and plans and obtaining
approval. Id. In addition, (a) plaintiffs were
restrained from using and/or occupying or allowing the use
and/or occupancy of the property by more than one lessee
until they fully complied with the Township Subdivision and
Land Development Code; (b) Ron Leary Paving Company was
directed to vacate the property by April 21, 2006; (c)
PennMark Auto Group, IV, L.P. was directed to permanently
vacate the property by September 30, 2008; (d) Allan A. Myers
was directed to permanently vacate the property by January
31, 2007; and (e) plaintiffs were restrained from using
and/or occupying the property for their own use and/or
occupancy, or that of any corporation or similar entity owned
or operated by either of them until all current tenant have
vacated the premises. Id.
have made no efforts to amend or challenge the orders in
these cases. Nor have plaintiffs appealed to the Commonwealth
Court. As of March 22, 2006, the land use appeal and equity
actions were concluded.
Alleged New Tenants at the Property in 2008
September 23, 2008, District Justice William Householder, who
lived on Lynn Avenue, complained to the Township that the
Cheltenham School District was leasing plaintiffs'
property and illegally using the fire emergency access drive
onto Lynn Avenue. Defs.' Mot. Summ. J., Ex. 56. Based on
that complaint, Berger requested that the new Code
Enforcement Officer and Zoning Officer for the Township,
Robert Dunlop, look into the alleged activity and, if needed,
issue a cease and desist order. Defs.' Mot. Summ. J., Ex.
57. When Dunlop investigated, he determined that vehicles on
the property were owned by multiple companies, suggesting
that plaintiffs had again leased their property to multiple
tenants. Defs.' Mot. Summ. J., Ex. 58, Dep. of Robert
Dunlop (Dunlop Dep.), 30:2-12, 32:23-8.
result of his investigation, Mr. Dunlop sent a letter to
plaintiffs notifying them that the current use of the
property was not allowed under the terms of the March 22,
2006 court order. Defs.' Mot. Summ. J., Ex. 59. Receiving
no response from plaintiffs, Dunlop sent another letter dated
February 27, 2009 stating, “[o]n several occasions
since September of last year, including today, [Dunlop] ha[d]
inspected the property and found vehicles registered to
different tenants . . . stored at this property.”
Defs.' Mot. Summ. J., Ex. 60. The letter went on to
You are hereby notified that the current use is not allowed
under the terms of the Court Order of March 22, 2006 and
Township Code section 95-4, and must be stopped within Five
(5) Days of your receipt of this letter, or you will be
issued a Non-Traffic Citation for failure to comply with
Springfield Township code section 95-4. You have the right to