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Giuliani v. Springfield Township

United States District Court, E.D. Pennsylvania

February 27, 2017



          O'NEILL, J.

         The 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, [1] 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.


         I. History of the Property

         Plaintiffs 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.

         When 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.[2] 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.

         II. Tenants on the Property After Plaintiffs Acquired It

         Plaintiffs 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.

         Plaintiffs 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.

         III. Plaintiffs' Early Land Use Applications to the Township

         On July 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. 328:7-23.

         In 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.

         IV. Defendants' Alleged Harassment and Citation of Plaintiffs

         According 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 ¶ 57.

         In 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.

         In 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., Ex. Q.

         On 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.

         V. Dispute Over Plaintiffs' Failure to Submit a Land Development Plan

         On 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, [3] were unaware that plaintiffs had multiple tenants on their property.

         In 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.

         On 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.

         Approximately 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.

         Notwithstanding 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. 24.

         On July 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 Mill Road.
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.[4]

Pls.' Opp'n Summ. J., Ex. U.

         In lieu 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.

         On 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.

         As a 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.

         In 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.

         Following 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.

         During 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.

         One 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.

         Plaintiffs' 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.

         Upon 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.

         Although 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.

         VI. Board of Commissioners' Denial of Plaintiffs' Land Development Application and Affirmation of the Fire Marshal's Decision Requiring a Fire Suppression System

         At the 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.

         Plaintiffs 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.

         Subsequent 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 following stipulations:

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 Township.
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 occupancy.
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.


         The 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.

         The 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.

         Plaintiffs 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.

         VII. Alleged New Tenants at the Property in 2008

         On 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.

         As a 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 provide:

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 ...

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