Complaint Print Ver

IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA
CIVIL DIVISION
DONALD J. WALTMAN : CIVIL COMPLAINT

RICHARD L. and SARA E. SMITH :
Plaintiffs : NO. 2006 CV 2404 CV
:
:
v. :
:
CITY OF HARRISBURG, :
:
HARRISBURG HOUSING AND :
REDEVELOPMENT AUTHORITY, :
:
MAYOR STEPHEN REED, :
:
DAVID E. PATTON, :
:
THERESA A. MARTINI, :
:
GEORGE E. HIDDEMAN, :
:
JASON E. TRIBUE, :
:
EDWARD F. CHAMBERS :
Defendants : JURY TRIAL DEMANDED
COMPLAINT
AND NOW COMES PLAINTIFFS, pro se, Donald J. Waltman along with
Richard L. Smith and his wife, Sara E. Smith, against the Defendants City of Harrisburg,
et. al., to provide the following:
1. Plaintiff, Donald J. Waltman (known hereinafter as Mr. Waltman unless
otherwise specified) resides at 10925 Glen Valley Road, Glen Rock, PA 17327 and is the
sole owner of a single resident, three story brick structure located at 1605 Thompson
Street, Harrisburg, Pennsylvania 17104.
2. Plaintiffs, Richard L. Smith (known hereinafter as Mr. Smith) and wife,
Sara E. Smith, (known collectively hereinafter as “the Smiths’ unless otherwise
specified) reside together at 2209 Berryhill Street, Harrisburg, PA 17104 and are joint
owners of a single resident, three story brick structure located at 1601 Thompson Street,
Harrisburg, Pennsylvania 17104.
3. Defendant, the City of Harrisburg (known hereinafter as “City”) is
a political subdivision with its principal offices located at 10 North Second Street,
Harrisburg, better known as the City Government Center.
4. Defendant, The Harrisburg Housing and Redevelopment Authority
(known hereinafter as “Authority”) is a body public, corporate and politic, organized and
existent by Authority of the Urban Redevelopment Law of PA, and works in conjunction
with City and has its principal office within the City Government Center.
5. Defendant, Mayor Stephen Reed, (known hereinafter as “Mayor Reed”)
is an adult individual and heads City government and works from an office located within
the same City Government Center.
6. Defendant, David E. Patton, (known hereinafter as “Mr. Patton”) is an
adult individual and is currently employed by City in the position of Codes Administrator
and works from an office located within the City Government Center.
7. Defendant, Theresa A. Martini, (known hereinafter as “Ms. Martini”) is an
adult individual, currently employed by City, and is further the Chairperson for
Defendant Authority and works from an office located within the City Government
Center.
8. Defendant, George E. Hiddeman, (known hereinafter as “Mr. Hiddeman”)
is an adult individual, who was employed by City in the position of Chief Plumbing
Inspector until December of 2004 and currently resides at 209 Ridgeview Drive in
Marysville, Pennsylvania.
9. Defendant, Jason E. Tribue, (known hereinafter as “Mr. Tribue”) is an
adult individual, who was employed by City in the position of Project Manager for Real
Estate in the Department of Building and Housing and currently resides at 614 North 18th
Street, Harrisburg, Pennsylvania.
10. Defendant, Edward F. Chambers, (known hereinafter as “Ed Chambers”)
2
is an adult individual residing at 5386 Beagle Road, Elizabethtown, PA, and is a master
plumber, certified and licensed in the City of Harrisburg.
11. The tracts of 1601, 1603, and 1605 Thompson Street are properties
containing separate but attached residential structures facing Thompson Street,
Harrisburg.
12. The tracts of 1602 and 1604 Derry Street are properties containing
separate but attached structures facing Derry Street, Harrisburg, and are situated directly
behind the said Thompson Street properties.
13. The five (5) said properties are situated as accurately described by the plan
view, attached hereto as Exhibit “A”, and incorporated by reference as though fully set
forth herein.
14. Recent ownership of the five (5) said properties is as follows:
a. 1601 Thompson Street has been deeded to Plaintiffs Smiths from
1992 until the present, a copy of the deed to such is attached hereto as Exhibit “B”
and is hereby incorporated by reference as though fully set forth herein.
b. 1603 Thompson Street has been and continues to be dilapidated
and uninhabitable and deeded to an unrelated third party;
c. 1605 Thompson Street has been deeded to Plaintiff Waltman from
July of 1988 until the present, a copy of the deed to such is attached hereto as
Exhibit “C” and is hereby incorporated by reference as though fully set forth
herein.
d. 1602 and 1604 Derry Street were taken by condemnation by
Authority on or about March 26, 2002 and placed under the control of City until
such properties were sold to Mount Pleasant Housing on or about March 16,
2005.
15. In 1906 the five (5) aforesaid properties in paragraphs 13 and 14, were
situated on a single tract of land, 40 feet by 170 feet.
16. Three (3) separate but attached residential structures were constructed on
the tracts of 1601, 1603 and 1605 Thompson Street sometime during the year 1906.
17. The three (3) Thompson Street structures in paragraph 16, shared a party-
line sewer system which ran from the back of the same structures and across the said
3
property of 1604 Derry Street, and connected to the city sewer main situated along Derry
Street.
18. Exhibit “A”, for the purpose of the instant case, accurately shows the
placement and location of the said party-line sewer system.
19. Two (2) separate but attached residential and/or commercial structures
were constructed on the tracts of 1602 and 1604 Derry Street sometime during the year
1906.
20. The structure on 1604 Derry Street was constructed on top of part of the
party-line sewer system described in paragraphs 17 and 18.
21. The sewer lines for the 1602 and 1604 Derry Street structures were also
connected to the said party-line sewer system.
22. The said party-line sewer system was intended at the time of its
construction to transport the sewage waste from the five (5) aforementioned structures,
those structures being 1601, 1603, and 1605 Thompson Street and 1602 and 1604 Derry
Street.
23. The said party-line sewer system transported the sewage waste by gravity
to the city sewer main on Derry Street from the five (5) said structures.
24. At the time of the said construction, thereabout 1906, there was no sewer
main located along Thompson Street to which the Thompson Street structures could be
connected.
25. The connection of the said party-line sewer system to the Derry Street
main sewer line, via its extension underneath 1604 Derry Street, was the only means
available at the time of construction, i.e. the year 1906, to transport sewage waste from
the three (3) said Thompson Street structures.
26. By the aforesaid in paragraphs 22-25, easements concerning the party-line
sewer system were created, giving the deeded owners of 1601 and 1605 Thompson Street
a right to the use thereof by the following:
a. installation of such was for the benefit of and use by any deeded
owners, i.e. Plaintiffs; and
b. the same installation was/is appurtenant and absolutely essential to
the use of Plaintiffs’ properties; and
4
c. at the time of the same installation and subsequent property
severance dates, the only conceivable disposal for sewage was by transport to the
Derry Street main sewer line.
27. The said property and all appurtenances thereto were subsequently
conveyed by chain of deed to and from various owners, i.e. fortiori, and eventually from
fortiori to Plaintiffs, Richard and Sara Smith, in 1992.
28. The said property and all appurtenances thereto were subsequently
conveyed by chain of deed to and from various owners, i.e. fortiori, and eventually from
fortiori, Mary Fanus, to Plaintiff, Donald J. Waltman, in July of 1988, Exhibit “C”.
29. By the aforesaid in paragraphs 15–26, any property owner of 1602 and/or
1604 Derry Street was prevented from disturbing the said party-line sewer system in any
manner that would interfere with or prevent the use of such by the owners of 1601 and/or
1605 Thompson Street.
30. By the circumstances averred in paragraphs 15-29, any deeded owner of
1601 and/or 1605 Thompson Street has a possessory interest in the said party-line sewer
system by an implied easement.
31. By the circumstances averred in paragraphs 15-29, any deeded owner of
1601 and/or 1605 Thompson Street has an incorporeal interest in the said party-line sewer
system by easement through necessity.
32. City is/was required by Pennsylvania statutory and case law to have maps
and documentation of the said party-line sewer system.
33. City failed to meet the said legal requirements whereby without such
failure, Plaintiffs would have a reference to a map or plate.
34. Plaintiffs therefore have an easement by reference to a map or plate, which
is not prevented by City’s said failure to comply with Pennsylvania law.
35. Sometime after 1990, owners of the said 1602 and 1604 Derry Street
properties experienced an accumulation of sewage in the basement of the structures built
thereon.
36. As a result of the aforesaid in paragraph 35, Ed Chambers was called to
the properties by private owner(s) in his capacity as an independent plumbing contractor.
5
37. Subsequently, Ed Chambers quoted the owners a price to replace the sewer
lateral extending from their properties to the Derry Street main sewer line.
38. The said sewer lateral is part to the same party-line sewer system averred
in paragraphs 17-23 and Exhibit A.
39. The said private owner(s) never contacted Ed Chambers to replace the
sewer lateral.
40. Sometime after March of 2002, i.e., the date beginning Authority
ownership of the said properties, Ed Chambers was called to the same properties by City
to investigate and/or repair the accumulation of sewage in the basement(s) of the
structures.
41. Ed Chambers found the basements of each structure to be continuous and
combined, not separated by walls.
42. Ed Chambers further found the basements to be partially filled with
sewage waste and therefore pumped them out.
43. Ed Chambers believed at the time that the said sewer lateral in paragraphs
35-37 had failed to function properly, i.e. to transport sewage to the Derry Street main
sewer line.
44. Ed Chambers further discovered a hole dug in the basement floor, which
extended downward to the said sewer lateral for the structures.
45. The said hole was situated about ten feet from the front wall (facing Derry
Street) and on the east side of the basement (structure of 1604 Derry Street).
46. In the said hole, Ed Chambers found a sump pump and a four inch pipe
extending from the same pump up to the basement surface and then over to the basement
of an adjacent property, i.e., 1598 Derry Street.
47. The purpose of the said pump and pipe was to pump sewage from the
failed sewer lateral under 1604 Derry Street to a functional sewer lateral underneath 1598
Derry Street.
48. From March 26, 2002 until March 16, 2005, Authority was the owner by
deed of the properties of 1602 and 1604 Derry Street.
49. From March 26, 2002 until March 16, 2005, City exercised control of the
properties 1602 and 1604 Derry Street in accord with Authority interests.
6
50. The facts averred in paragraphs 42-47 relating to 1602 and 1604 Derry
Street were known by City no later than March 1, 2004.
51. In February and/or March of 2004, City employed private contractor,
Defendant Ed Chambers, to prevent the said accumulation in paragraphs 40 and 42.
52. Ed Chambers was not employed to fix or repair any sewer lines or laterals
pursuant to the action in paragraph 51.
53. It was within the capability of Ed Chambers, if so employed, to repair any
sewer lines or laterals within the said party-line sewer system, pursuant to the action in
paragraph 51.
54. It was within the capability of Ed Chambers, if so employed, to eliminate
the said accumulation in paragraphs 40 and 42 by repairing certain sewer lines or laterals
within the said party-line sewer system, pursuant to the action in paragraph 51.
55. City and Authority had a duty to repair or replace the sewer lateral which
extended from the Authority owned 1602 and 1604 Derry Street properties to the Derry
Street main sewer line, pursuant to the averments in paragraphs 43-47, 54.
56. From March of 2002 (the date of certain acts of Ed Chambers, averred in
the forthcoming paragraph 68) until March 16, 2005, the properties of 1602 and 1604 had
no sewer connection whatsoever, to provide any means of sewage disposal.
57. No defects, blockages or malfunctions of any type existed in the sewer
laterals physically located on the properties of 1601 or 1605 Thompson Street that caused
the said accumulation in paragraphs 40 and 42.
58. Plaintiffs had no knowledge whatsoever of the said accumulation in
paragraphs 40 and 42, prior to July 1, 2004.
59. Plaintiffs had no knowledge whatsoever that the sewer laterals from their
said properties extended under the properties of 1602/1604 Derry Street, prior to July 1,
2004.
60. Plaintiffs did not have any duty to know the aforesaid facts in paragraphs
40 and 42.
61. Plaintiffs did not violate any City code provision, which could have in any
manner contributed to any accumulation of sewage in the basements of 1602/1604 Derry
Street.
7
62. No inactions of Plaintiffs, in any manner, contributed to any accumulation
of sewage in the basements of 1602/1604 Derry Street.
63. Plaintiff, Donald J. Waltman, in no manner acted unreasonably concerning
the managing or maintenance of 1605 Thompson Street, which could have contributed to
any accumulation of sewage in the basements of 1602/1604 Derry Street.
64. Plaintiffs, Richard L Smith or Sara E. Smith, in no manner acted
unreasonably concerning the managing or maintenance of 1601 Thompson Street, which
could have contributed to any accumulation of sewage in the basements of 1602/1604
Derry Street.
65. No actions of Plaintiff, Donald J. Waltman, caused or contributed in any
manner whatsoever to any accumulation of sewage in the basements of 1602/1604 Derry
Street.
66. No actions of Plaintiffs Richard L Smith or Sara E. Smith, caused or
contributed in any manner whatsoever, to any accumulation of sewage in the basements
of 1602/1604 Derry Street.
67. No actions or inactions of any tenant of 1601 or 1605 Thompson Street
caused or contributed in any manner whatsoever, to the said accumulation of sewage in
the basements of 1602/1604 Derry Street.
68. In March of 2004 Ed Chambers attempted to prevent the accumulation in
paragraphs 40 and 42 by blocking various sewer lines into and/or within the Derry Street
structures.
69. Ed Chambers did not attempt to fix or repair any sewer lines or laterals.
70. Sometime thereafter March of 2004 but prior to June 9, 2004,
a. an increase in the accumulation of sewage therein became known
to City;
b. City engineering and/or City services personnel televised the inside
of the Thompson Street main sewer line and found that the said structures situated
on 1601 and 1605 Thompson Street were not connected to the same main sewer
line.
71. Within the same time frame specified in paragraph 70, City employed Ed
Chambers for the following purposes:
8
a. to excavate the backyard of 1602 and/or 1604 Derry Street;
b. to locate a sewer lateral under the surface; and
c. to cut and cap, i.e. permanently block, the same sewer lateral.
72. Mayor Reed signed a purchase order requesting Ed Chambers to perform
the work described in paragraph 54. The same purchase order is attached hereto as
Exhibit “D” and incorporated by reference as though fully set forth herein.
73. Ed Chambers believes and therefore asserts that Defendants’
aforesaid actions averred in paragraphs 68-72, were done in accord with established City
policy, custom and practice.
74. Defendants knew in advance or should have known the following:
a. the work averred in paragraph 71, would result in the back-up of
sewage waste at its source;
b. the source of sewage waste in the said lateral was from the
structures situated on 1601 and 1605 Thompson Street;
c. the work averred in paragraph 71, would result in the back-up of
sewage waste into the basements of 1601 and 1605 Thompson Street;
d. the work averred in paragraph 71, would ensure the termination of
the means of sewage disposal for 1601 and 1605 Thompson Street.
75. On or about June 9, 2004, Defendants posted notices on the structures of
1601 and 1605 Thompson Street, notifying occupants to remove vehicles from the side of
1601 Thompson Street.
76. The purpose of the said notices was to ensure a means of egress for
excavation equipment to perform the work averred in paragraph 71.
77. The said notices did not warn or inform the recipients of such of any threat
or danger to Plaintiffs’ property.
78. The said notices did not state any information relating to any work to be
performed as averred in paragraph 71.
79. Defendants never at any time warned or informed Plaintiffs of any threat
or danger to their properties of 1601 and/or 1605 Thompson Street.
80. Defendants never at any time warned or informed Plaintiffs relating to the
work averred in paragraph 71.
9
81. On or about June 10, 2004, Ed Chambers dug into the backyard of 1602
and/or 1604 Derry Street in accord with purchase order, Exhibit “D”, and uncovered an
eight inch sewer line.
82. The said sewer line was “live” in that it contained raw sewage and was in
current use.
83. Ed Chambers broke open the said sewer line and then capped the same
line with a cubic yard of concrete.
84. The dye method of testing was not utilized by Defendants to determine the
source of the sewage in paragraph 82, prior to their action in paragraph 83.
85. Mr. Tribue witnessed and approved of the actions and inactions performed
in paragraphs 81-83.
86. Mr. Hiddeman inspected the work performed in paragraph 83 and
approved of the actions and performed in paragraphs 81-83.
87. Mr. Patton was the supervisor of Mr. Hiddeman and instructed, ordered,
condoned and approved Mr. Hiddeman’s actions relating to the work performed in
paragraphs 81-83.
88. Ms. Martini is a supervisor to Mr. Tribue, specifically as relating to
Authority’s interests concerning 1602 and 1604 Derry Street, and instructed, ordered,
condoned and approved Mr. Tribue’s actions relating to the work performed in
paragraphs 81-83.
89. Ms. Martini is a supervisor to Mr. Patton, specifically as relating to
Authority’s interests concerning 1602 and 1604 Derry Street, and instructed, ordered,
condoned and approved Mr. Patton’s actions relating to the work performed in paragraphs
81-83.
90. Mayor Reed is a supervisor to Mr. Patton and instructed, ordered,
condoned and approved Mr. Patton’s actions relating to the work performed in paragraphs
81-83.
91. Mayor Reed signed an invoice thereby authorizing payment to Ed
Chambers for the actions performed in paragraphs 81-83.
10
92. Authority, acting as the deeded owner to 1602 and 1604 Derry Street,
instructed, ordered, condoned and approved the actions relating to the work performed in
paragraphs 81-83.
93. Defendants City and Authority, as a matter of belief and practice, approve
and condone the actions taken and not taken as averred in paragraphs 43-68.
94. Defendants knew or should have known in advance the configuration,
source and use of the aforesaid party-line sewer system for the following reasons:
a. the capped sewer line came from the direction of the Thompson
Street structures;
b. the capped sewer line was “live”, i.e. contained sewage;
c. no testing within the Thompson Street structures to
determine the source of the sewage was ever conducted;
d. human beings occupied 1601 and 1605 Thompson Street;
e. the Thompson Street main line was televised sometime after June
10, 2004, and indicated that the Thompson Street properties were not connected to
the Thompson Street main sewer line;
f. Ed Chambers has over thirty years experience in the installation,
troubleshooting and repair of sewer lines;
g. City Plumbing Inspector, George Hiddeman had over 30 years
experience in the employ of City as a plumbing inspector.
95. Mr. Patton should have known of the risk and certainty of consequences
associated with Defendants’ actions in paragraphs 43-68 for the following reasons:
a. the scope of his official capacity includes oversight relating to city
sewer systems;
b. he was informed by Mr. Tribue of the circumstances averred in
paragraphs 68-70 and solutions thereto under consideration;
c. he knew in advance of the excavation averred in paragraph 71.
d. he did not know of any specific plan to find the source of the
sewage averred in paragraphs 68-70.
e. his credentials include but are not limited to the following:
i having a current master plumber’s license;
11
ii nine years experience in his current employment capacity
as Codes Administrator prior to the year 2004;
iii various international certifications through the International
Code Council;
iv was previously a project superintendent for Eshenaur Fuels.
96. Plaintiffs believe and therefore aver that Ed Chambers was in no manner
competent to perform the work averred in paragraph 71 for the following reasons:
a. Ed Chambers is not illiterate to the extent that he can not and did
not pass City’s requisite test for a master plumber;
b. Ed Chambers has asserted his belief that, the cost incurred by the
usage of approximately 60 gallons of city water, justifiably prevented Defendants
from performing a test, which would have revealed the source of the sewage in
paragraph 82;
97. Mr. Patton asserts, “My dealings with Mr. Chambers reveal that he’s
extremely competent”.
98. Additional facts relating to the specific knowledge, expertise, roles and
responsibilities of each individual defendant actor are hereby averred as discovered by
inquiry.
99. Defendants acted in bad faith relating to their duties to protect Plaintiff’s
property from the harm caused by their actions and inactions averred in paragraphs 50-55
and 68-84.
100. Mr. Patton denies his duty to investigate the actions and inactions averred
in paragraphs 68-84 and admits to not knowing the following facts:
a. the appropriateness of the cut and cap in paragraphs 71 and 83;
b. who requested the purchase order for the cut and cap;
c. who gave the final authority for the cut and cap;
101. Defendants’ actions and inactions averred in paragraphs 50-55 and 68-84
were done purposely and with intent and reckless disregard for the property rights, health
and welfare of Plaintiffs.
12
102. Defendants desired to bring about the cut and cap averred in paragraphs 71
and 83, knowing that the resulting sewage back-up into the basements of Plaintiffs
properties was certain to follow.
103. The said sewer line was part of the aforesaid party-line sewer system, the
termination of which effectively isolated the Thompson Street properties from the Derry
Street sewer main.
104. No process or procedure of any type which involved Plaintiffs, property
owners of 1601 and 1605 Thompson Street, were held prior to the said cutting and
capping in paragraph 83.
105. Plaintiffs were thereby deprived of the use of their real estate without any
such procedure or process whatsoever.
106. Plaintiffs were further deprived of the use of their real estate without any
offer of compensation from any Defendant.
107. Prior to June 10, 2004, both properties, 1601 and 1605 Thompson Street,
were fully functional rental units and had no sewage back-ups, problems, irregularities, or
malfunctions whatsoever.
108. Prior to June 10, 2004, both the said properties were tenant occupied.
109. Tenants living in 1605 and 1601 Thompson Street unknowingly continued
to flush waste into the sewer system thereby creating a back-up of sewage, which
infiltrated the basements of the Thompson Street properties.
110. The said structures comprised the homes of the said tenants, and were
evacuated by about July 5, 2004 due to the said infiltration of sewage.
111. The structures of 1601 and 1605 Thompson Street have been and continue
to be vacant and uninhabitable since about July 5, 2004.
112. The level of risk taken by Defendants by their aforesaid actions in
paragraphs 50-55 and 68-83, was substantial to the extent that the said sewage back-up
was imminent.
113. Defendants failed in their duty to warn Plaintiffs of a possible and/or
probable sewage back-up.
13
114. Defendants created a blight to the community surrounding the said
structures of 1601 and 1605 Thompson Street by destroying their economic and
utilitarian value.
115. Defendant Authority therefore acted outside of the legislative intent of the
Urban Redevelopment Law, the statute under which it was created and the legal authority
by which it owned and managed the said properties of 1602/1604 Derry Street.
116. City and Authority policies, customs and practices, relating to party-line
sewer systems under the circumstances averred in paragraphs 68-84, have been
established in part or in whole by Mayor Reed, Mr. Patton and Ms. Martini, as has been
asserted by such Defendants, and is as follows:
a) a party-line sewer system utilized by one structure and running
underneath a separate structure to reach its destination is illegal; and
b) is a continuing violation of law; and
c) the date of the installation is not relevant to its legality; and
d) damage sustained by a separate property as a result of the same
sewer line however, is a determining factor in the legality of such sewer line;
e) under the circumstances in a) - d) and paragraphs 50-55, City had
no other option than to cut and cap, i.e., disconnect such sewer line;
f) under the circumstances in a) – e), City has no duty to:
i discover the source of sewage in the same line;
ii notify any residents or property owners who could be
adversely affected by the action in e);
iii compensate any persons adversely affected for losses caused
by the same action in e);
g) City has a duty to order all property owners deprived of sewer
service by the same action in e), to reconnect their sewage system at their own
expense;
h) Relating to the disconnecting and capping of a live sewer line:
i it is not legal for City to do such if the origin of the sewage is
known; but
ii it is legal for City to do such if the origin of the sewage is not
14
known;
i) Any constitutional rights of property owners relating to their
affected properties are not relevant to or considered by City or Authority;
j) Property owners using such sewer system in a) act unreasonably
and assume substantial risk by virtue of the sewer line running underneath a
separate property;
k) Such sewer line is considered private to any property owner in j).
117. The damages to Plaintiffs Smiths’ to date are set forth below as follows:
a. Cleaning and disinfection: $ 2540 estimated
b. Furnace replacement: $ 3480 estimated
c. Hot water heater replacement: $ 425 estimated
d. Reconnect to sewer $ 6900 actual
e. Other supplies $ 2990 estimated
f. Loss of rental income $ 5550 actual to date
g. Loss of tenants and lease determined by court
Total $21885
118. The damages to Mr. Waltman to date are set forth below as follows:
a. Pumping of raw sewage $ 850 estimated
a. Cleaning and disinfection: $ 4210 estimated
b. Furnace replacement: $ 3275 estimated
c. Hot water heater replacement: $ 355 estimated
d. Sewer line reconnect $ 9000 estimated
f. Loss of rental income $ 3900 actual
g. Loss of tenants and lease determined by court
Total $19090
119. On or about July 25, 2004, Plaintiffs Smiths gave Notification to City
under the Political Subdivisions Tort Claims Act by faxing such Notification to City Law
Bureau. A true and correct copy of the same Notification is attached hereto as Exhibit
“E” and incorporated as though fully set forth herein.
15
120. On or about August 15, 2004, Mr. Patton issued an Order to the Smiths to,
at their own expense, connect the sewer system of 1601 Thompson Street to the
Thompson Street main sewer line. A true and correct copy of the same Order is attached
hereto as Exhibit “F” and incorporated as though fully set forth herein.
121. Mr. Patton issued the said Order at the request, approval, direction and
mandate of Ms. Martini and Mayor Reed.
122. The said Order was a direct and proximate result of the Smiths’ said
Notification to City, Exhibit “E”.
123. The Smiths complied with the said Order under the threat of criminal
prosecution and on their justifiable reliance on purported facts stated by Mr. Patton.
124. The Smiths hired an independent contractor to install a sewer lateral from
their building to the Thompson Street main sewer line and incurred a cost of $6900.
125. Despite the said installation, the Smiths’ property, 1601 Thompson Street,
remains uninhabitable due to mold infestation in the first floor, contamination in the
basement and the loss of the furnace.
126. The aforesaid in paragraph 125 is a direct and proximate result of the said
sewage back-up into the basement of the structure.
127. The Smiths do not have the economic means to make additional repairs
needed as averred in paragraph 125 after suffering the incursion of the said $6900
liability and the loss of $600 per month rental income.
128. The plumbing system in 1601 Thompson Street has been looted by scrap
metal scavengers as a direct and proximate result of the continued vacancy of the
structure.
129. The Smiths have had to increase their routine employment to bear the said
financial losses.
130. On or about August 30, 2004 the Smiths appealed the Order of the City to
the Harrisburg Building and Housing Board of Appeals despite their said compliance.
131. The said appeal was filed by the Smiths in protest of City’s said Order.
132. A hearing on the issue was held on or about September 17, 2004 whereby
the testimony presented at such was recorded and transcribed.
16
133. By correspondence dated October 1, 2004, the Board refused to rule on the
Smiths’ Appeal.
134. On or about August 25, 2004, Plaintiff Waltman gave Notification to City
under the Political Subdivisions Tort Claims Act by hand-delivering such Notification to
Mayor Reed’s office. A true and correct copy of the same Notification is attached hereto
as Exhibit “G” and incorporated as though fully set forth herein.
135. On or about September 15, 2004, Defendant Hiddeman issued an Order to
Mr. Waltman to, at his own expense, connect the sewer system of 1605 Thompson Street
to the Thompson Street main sewer line. A true and correct copy of the same Order is
attached hereto as Exhibit “H” and incorporated as though fully set forth herein.
136. Mr. Hiddeman issued the said Order at the request, approval, direction and
mandate of Defendants David E. Patton, Theresa Martini and Mayor Reed.
137. The said Order was a direct and proximate result of Mr. Waltman’s said
Notification to City, Exhibit “G”.
138. On or about November 18, 2004 Mr. Hiddeman testified that the said
Order was a result of Mr. Waltman’s said Notification to City.
139. On or about September 30, 2004 Appellant appealed the Order of the City,
140. Hearings on the issue were held on or about November 18, 2004 and again
on February 17, 2005 whereby the testimony presented at such was recorded and
transcribed.
141. By correspondence dated February 16, 2006, Appellee denied Appellant’s
Appeal.
142. On or about April 17, 2006 Mr. Waltman subsequently filed an appeal to
the Dauphin County Court of Common Pleas, No. 2006 CV 1698 MP, which remains
pending. (Appellant’s Amended Notice of Appeal to the Decision of Appellee, the
Harrisburg Building and Housing Code Board of Appeals paragraphs 1 – 45, are hereby
incorporated by reference as though fully set forth herein.)
143. Mr. Patton has asserted that Defendants’ aforesaid actions averred in
paragraphs 50-55 and 68-84, were done in accord with established City policy, custom
and practice.
17
144. The most significant events giving rise to the within Complaint occurred,
according to the following timeline, on about the dates as stated:
a. March 2004: Capping and blockage of sewer lines within 1602
and 1604 Derry Street;
b. May 2004: Creation and authorization of a purchase order to
excavate and subsequently cut and cap the said party-line sewer system, Exhibit
“D”;
c. June 10, 2004: the act of excavating and cutting and capping the
said party-line sewer system;
d. July 5, 2004: Plaintiffs were aware that sewage had backed-up
into the basements of their structures;
e. July 25, 2004: the Smiths sent a Notification under the Tort
Claims Act to City;
f. August 15, 2004: Mr. Patton sent an Order to the Smiths to
connect their sewer system to the Thompson Street main line;
g. August 25, 2004: Mr. Waltman sent a Notification under the Tort
Claims Act to City;
h. September 15, 2004: Mr. Hiddeman sent an Order to Mr. Waltman
to connect his sewer to the Thompson Street main line.
145. By the aforesaid conduct averred in paragraphs 120-122, 135-137, 144,
Defendants violated 18 Pa. C.S.A. §5301, Official Oppression, by the following:
a. subjected Plaintiffs to mistreatment, dispossession and
infringement of personal and property rights;
b. denied and impeded Plaintiffs from the exercise and enjoyment of
their rights and privileges relating to their real property and rights to recover
compensation.
146. The aforesaid conduct averred in paragraphs 50-55 and 68-84 violated the
following criminal statutes:
a. Official Oppression
b. Criminal Negligence
c. Creation of a Nuisance
18
147. Individual Defendants, City Officials, and Ed Chambers from time to
time, acted outside of the official capacity of their respective positions in taking the
aforesaid actions.
148. The aforesaid conduct averred in paragraphs 50-55, 68-84, 120-122, 135-
137, 144, demonstrated the Defendants’ blatant, willful and intentional disregard for the
rights, health, safety and welfare of Plaintiffs and their tenant occupants and their
respective property which was destroyed by Defendants’ actions.
149. Each individual defendant is therefore liable for punitive damages,
intended to punish each for his/her/its respective role in the aforesaid actions and to
discourage others in similar circumstances from acting likewise.
150. By the averments in paragraphs 50-55, 68-81 Defendant individuals
identified in paragraphs 5-10, acted within the scope of their official employment
capacities as established City policy, custom and practice.
151. By the averments in paragraphs 50-55, 68-102, 120-122, 135-137, 144
Defendant individuals identified in paragraphs 5-10, further acted outside of the scope of
their official employment capacities as individuals engaged in willful misconduct.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter
judgment in favor of Plaintiffs and against Defendants and to grant all appropriate
compensatory and injunctive relief to Plaintiffs, along with all legal costs and further
impose punitive damages on Defendants for their willful disregard of Plaintiffs’ rights.
CAUSES OF ACTION
Creating a Nuisance
Count I
Plaintiff: Donald J. Waltman
Defendant Governmental Bodies: City, Authority
Defendant Individuals: Mayor Reed, Theresa A. Martini, David E. Patton,
George E. Hiddeman, Jason E. Tribue
152. Paragraphs 1 through 151 are hereby incorporated herein by reference as

though fully set forth herein.
19
153. An agreement, binding on City, exists whereby City has a duty to remove
sewage waste from Mr. Waltman’s property.
154. Defendants’ actions of cutting and capping the sewer line, paragraph 83,
prevented the flow of sewage from the Smiths’ property.
155. The flow of sewage from the said property continues to be blocked by the
concrete poured by Mr. Chambers.
156. Therefore Defendants breached and caused a breach of the said agreement
by cutting and capping Mr. Waltman’s sewer line, which blocked and continues to block
the flow of sewage from the said property.
157. As a direct and proximate result of the said action, sewage waste has not
been removed from the property as per the said agreement since about June 10, 2004.
158. As a result of the aforesaid action, raw sewage backed-up into the
basement of Mr. Waltman’s property causing extremely noxious, odorous and nauseating
black wastewater to fill the basement of the said property to a level of about 24 inches.
159. Although Defendants knew in advance that his aforesaid actions would
cause the said sewer back-up, he neglected to inform Mr. Waltman or any inhabitants of
the property of the same actions and the foreknown results of such.
160. The said black wastewater permeated every space and crevice in the
basement, surrounding appliances and covering any and all items and/or supplies on the
basement floor.
161. The noxious odor from the said wastewater seeped into the first floor of
the property, settling into carpets, furniture, wooden floors and tile ceilings.
162. Moisture and fecal waste from the said wastewater became air-borne,
creating a mold and bacteria infestation in the basement and first floor of the property.
163. The tenant who had been occupying Mr. Waltman property was forced to
vacate because of the aforesaid extreme unsanitary conditions.
164. After cutting and capping the said party-line sewer, Defendants could have
and should have prevented the aforesaid conditions, but rather chose to willfully and
intentionally neglect taking any action whatsoever to prevent such.
165. As a result of the sewage mess, City of Harrisburg Inspections Department
found Mr. Waltman in violation of City codes concerning sewer connections and issued
20
an order to force Mr. Waltman, at his own economic and personal expense, to clean up
the sewage mess and reconnect his sewer line to the City’s sewer.
166. Mr. Waltman’s property to the present time remains uninhabitable and
subjected to the risks of vacancy.
167. By the aforesaid conduct, Defendants knowingly, willfully, and
intentionally created a nuisance and is liable to Mr. Waltman for his economic damages
and personal hardships.
168. Mr. Waltman suffered the following damages as a direct and proximate
result of Defendants’ wrongful actions and inactions:
a. the total loss of the value of Plaintiff’s property, $24,000;
b. the loss of rental income, $425 per month since the month of
July 2004 to the current date;
c. personal losses and monetary expenses relating to Plaintiff’s
defense against the said lawsuit initiated and continued by City:
(i) $769 monetary expenses;
(ii) loss of opportunity;
(iii) loss of family time;
(iv) emotional distress;
d. illness, including nausea and headaches from being in a structure
reeking of raw sewage.
169. Defendants by their said conduct, acted intentionally and purposefully
with reckless disregard and indifference to the rights, interests, health, safety and welfare
of Plaintiff.
WHEREFORE, Plaintiff Donald J. Waltman demands judgment against
Defendants in an amount that exceeds the compulsory arbitration limit in Dauphin
County and requests that this Honorable Court:
1. Order Defendants to pay the fair market value of Plaintiff’s
property to Plaintiff.
2. Order Defendants to pay all costs for the demolition of the
useless and burdensome structure on Plaintiff’s property.
3. Award compensatory damages in an amount to be determined
21
according to proof by Plaintiff against all Defendants in their individual
capacities.
4. Award punitive damages in such other amount as the jury may
determine is sufficient to punish them for and deter others from
committing the violations averred herein.
5. Award Plaintiff his costs, expenses, and reasonable attorneys’ fees.
6. Grant such other and further relief as this Honorable Court may
deem just and proper.
Count II
Plaintiffs: Richard L. Smith and Sara E. Smith
170. Paragraphs 1 through 169 are hereby incorporated herein by reference as

though fully set forth herein.
sewage waste from the Smiths’ property.
172. Defendants’ actions of cutting and capping the sewer line, paragraph 83,
prevented the flow of sewage from the Smiths’ property.
173. The flow of sewage from the said property continues to be blocked by the
concrete poured by Mr. Chambers.
174. Therefore Defendants breached and caused a breach of the said agreement
by cutting and capping the Smiths’ sewer line, which blocked and continues to block the
flow of sewage from the said property.
175. As a direct and proximate result of the said action, sewage waste has not
been removed from the property as per the said agreement since about June 10, 2004.
176. As a result of the aforesaid action, raw sewage backed-up into the
basement of the Smiths’ property causing extremely noxious, odorous and nauseating
black wastewater to fill the basement of the said property to a level of about 24 inches.
22
177. Although Defendants knew in advance that his aforesaid actions would
cause the said sewer back-up, he neglected to inform the Smiths’ or any inhabitants of the
property of the same actions and the foreknown results of such.
178. The said black wastewater permeated every space and crevice in the
basement, surrounding appliances and covering any and all items and/or supplies on the
basement floor.
179. The noxious odor from the said wastewater seeped into the first floor of
the property, settling into carpets, furniture, wooden floors and tile ceilings.
180. Moisture and fecal waste from the said wastewater became air-borne,
creating a mold and bacteria infestation in the basement and first floor of the property.
181. The tenant who had been occupying the Smiths’ property was forced to
vacate because of the aforesaid extreme unsanitary conditions.
182. After cutting and capping the said party-line sewer, Defendants could have
and should have prevented the aforesaid conditions, but rather chose to willfully and
intentionally neglect taking any action whatsoever to prevent such.
183. As a result of the sewage mess, City of Harrisburg Inspections Department
found the Smiths’ in violation of City codes concerning sewer connections and forced the
Smiths’, at their own economic and personal expense, to clean up the sewage mess and
reconnect their sewer line to the City’s sewer.
184. Despite the aforementioned efforts of the Smiths’, their property to the
present time remains uninhabitable and subjected to the risks of vacancy.
185. By the aforesaid conduct, Defendants knowingly, willfully, and
intentionally created a nuisance and is liable to the Smiths’ for their economic damages
and personal hardships.
186. Plaintiff suffered the following damages as a direct and proximate result of
Defendants’ actions:
23
(i) $200 monetary expenses;
187. Defendants by their said conduct, acted intentionally and
purposefully with reckless disregard and indifference to the rights, interests, health, safety
and welfare of Plaintiff.
WHEREFORE, Plaintiffs Smiths’ demand judgment against Defendants in an
amount that exceeds the compulsory arbitration limit in Dauphin County and requests
that this Honorable Court:
1. Order Defendants to pay the fair market value of Plaintiffs’
property to Plaintiffs.
useless and burdensome structure on Plaintiffs’ property.
according to proof by Plaintiffs against all Defendants in their individual
capacities.
5. Award Plaintiffs their costs, expenses, and reasonable attorneys’
fees.
24
Negligence
Count III
188. Paragraphs 1 through 187 are hereby incorporated by reference as though
fully set forth herein.
189. The property of 1602/1604 Derry Street was under the full and complete
control of Defendants.
190. The said property shared a common sewer line, i.e. a party-line sewer,
with Plaintiff’s property situated at 1605 Thompson Street.
191. Defects in the sewer system on Defendants’ property have existed since
Authority ownership on March 26, 2002, and have adversely affected Plaintiff’s property
since about June 10, 2004 until the present time.
192. Defendants failed to address and repair the said defects with any
reasonable care or prudence.
193. Defendants’ property was and is defective in that:
a. the sewer lateral extending from the said property to the Derry
Street main sewer line was blocked in part or in whole; and
b. as a result, previous owners had implemented a system to pump the
sewage from the basement of the same property over to a sewer lateral for an
adjacent property situated at 1598 Derry Street.
c. Defendants failed to repair the said lateral extending to the Derry
Street main sewer line;
d. Defendants rather excavated in the backyard of 1602/1604 Derry
Street, and cut and capped the sewer line extending from Plaintiff’s property
underneath 1602/1604 Derry Street and thereon to the Derry Street main sewer
line.
194. The said defect caused sewage to back-up into Plaintiff’s basement.
195. Defendants’ said conduct involved unreasonable risk to the property of
Plaintiff and such risk should have been foreseen for the following reasons:
a. Defendants knew that the said sewer lateral was “live”;
25
b. sewage had been accumulating in the basements of Defendants’
said property while the structures on such were unoccupied;
c. the lateral in Defendants’ backyard, which they cut and capped,
was visibly directed toward Plaintiff’s property situated at 1605 Thompson Street;
d. Plaintiff’s same property was obviously and visibly inhabited at
the time of the said cut and cap;
e. Defendants failed to utilize available testing methods for
determining the source of the sewage in the lateral which they cut and capped.
196. Defendants’ said conduct is a matter of standard City practice and policy.
197. Defendants collectively have a very substantial number of years
experience working with sewer lines and laterals, whereby their perceptions of the
circumstance, knowledge, and abilities, surpasses that of an ordinary, reasonable person
in the context of sewer systems.
198. A reasonable person clearly understands the concept that if a “live” sewer
line is obstructed, sewage will eventually back-up at its source.
199. A reasonable person, exercising ordinary care:
a. would not intentionally obstruct a “live” sewer lateral; and
b. if such lateral were obstructed by accident, such reasonable person
would, as a matter of decency and common sense, promptly notify all property
owners whose properties would potentially be affected.
200. Defendants knew or should have known in advance of the high
probability of their conduct, which caused the aforesaid ensuing harm and Defendants
therefore acted with intent and knowledge.
201. Defendants breached their duties to act reasonably and exercise
ordinary
care by the following failures of duty:
a. failed to repair said sewer lateral to Derry Street main sewer line;
b. employed Ed Chambers to cut and cap Plaintiff’s sewer line;
c. failed to notify neighboring property owners of the following:
i. their intent to cut and cap a “live” sewer lateral
before the fact;
26
ii. their action of cutting and capping after the fact;
d. failed to select a competent, responsible and reasonable
independent contractor;
e. failed to inspect the work of such independent contractor;
f. failed to provide for the taking of precautions against dangerous
conditions;
g. failed to exercise control retained by City over such independent
contractor;
h. failed to repair structures on the land under their control;
i. failed to warn Plaintiff of impending danger and failed to correct
such danger;
j. failed to follow emergency procedures provided in local codes;
202. The aforesaid duties were breached by Defendants, causing Plaintiff to
sustain the following property and personal damage:
a. termination of sewer service to Plaintiff’s property;
b. accumulation of raw sewage in the basement of Plaintiff’s
property and causing the following:
i. bacteria contamination;
ii. mold infestation;
iii. the furnace to be unusable;
c. loss of tenant occupant;
d. destruction of Plaintiff’s business;
e. lawsuit against Plaintiff initiated by City in the form of an Order
coercing Plaintiff to reconnect his sewer line at his own expense.
203. Plaintiff further suffered the following damages as a direct and proximate
result of Defendants’ actions:
27
(i) $769 expenses;
WHEREFORE, Plaintiff Donald J. Waltman demands judgment against
capacities.
Count IV
28
206. The property of 1602/1604 Derry Street was under the full and complete
control of Defendants.
207. The said property shared a common sewer line, i.e. a party-line sewer,
with Plaintiff’s property situated at 1605 Thompson Street.
208. Defects in the sewer system on Defendants’ property have existed since
Authority ownership on March 26, 2002, and have adversely affected Plaintiff’s property
since about June 10, 2004 until the present time.
209. Defendants failed to address and repair the said defects with any
reasonable care or prudence.
210. Defendants’ property was and is defective in that:
a. the sewer lateral extending from the said property to the Derry
Street main sewer line was blocked in part or in whole; and
b. as a result, previous owners had implemented a system to pump the
sewage from the basement of the same property over to a sewer lateral for an
adjacent property situated at 1598 Derry Street.
c. Defendants failed to repair the said lateral extending to the Derry
Street main sewer line;
d. Defendants rather excavated in the backyard of 1602/1604 Derry
Street, and cut and capped the sewer line extending from Plaintiff’s property
underneath 1602/1604 Derry Street and thereon to the Derry Street main sewer
line.
211. The said defect caused sewage to back-up into Plaintiff’s basement.
212. Defendants’ said conduct involved unreasonable risk to the property of
Plaintiff and such risk should have been foreseen for the following reasons:
a. Defendants knew that the said sewer lateral was “live”;
b. sewage had been accumulating in the basements of Defendants’
said property while the structures on such were unoccupied;
c. the lateral in Defendants’ backyard, which they cut and capped,
was visibly directed toward Plaintiff’s property situated at 1605 Thompson Street;
d. Plaintiff’s same property was obviously and visibly inhabited at
the time of the said cut and cap;
29
e. Defendants failed to utilize available testing methods for
determining the source of the sewage in the lateral which they cut and capped.
213. Defendants’ said conduct is a matter of standard City practice and policy.
214. Defendants collectively have a very substantial number of years
experience working with sewer lines and laterals, whereby their perceptions of the
circumstance, knowledge, and abilities, surpasses that of an ordinary, reasonable person
in the context of sewer systems.
215. A reasonable person clearly understands the concept that if a “live” sewer
line is obstructed, sewage will eventually back-up at its source.
216. A reasonable person, exercising ordinary care:
a. would not intentionally obstruct a “live” sewer lateral; and
b. if such lateral were obstructed by accident, such reasonable person
would, as a matter of decency and common sense, promptly notify all property
owners whose properties would potentially be affected.
217. Defendants knew or should have known in advance of the high
probability of their conduct, which caused the aforesaid ensuing harm and Defendants
therefore acted with intent and knowledge.
218. Defendants breached their duties to act reasonably and exercise ordinary
care by the following failures of duty:
a. failed to repair said sewer lateral to Derry Street main sewer line;
b. employed Ed Chambers to cut and cap Plaintiff’s sewer line;
c. failed to notify neighboring property owners of the following:
i. their intent to cut and cap a “live” sewer lateral
before the fact;
ii. their action of cutting and capping after the fact;
d. failed to select a competent, responsible and reasonable
independent contractor;
e. failed to inspect the work of such independent contractor;
f. failed to provide for the taking of precautions against dangerous
conditions;
30
g. failed to exercise control retained by City over such independent
contractor;
h. failed to repair structures on the land under their control;
i. failed to warn Plaintiff of impending danger and failed to correct
such danger;
j. failed to follow emergency procedures provided in local codes;
a termination of sewer service to Plaintiff’s property;
b accumulation of raw sewage in the basement of Plaintiff’s
i. bacteria contamination;
ii. mold infestation;
iii. the furnace to be unusable;
(i) $200 expenses;
31
and welfare of Plaintiffs.
WHEREFORE, Plaintiffs Smiths’ demand judgment against Defendants in an
capacities.
fees.
Trespass
Count V

sewage waste from Mr. Waltman’s property.
32
224. Defendants, by their actions averred in paragraphs 50-55 and 68-84,
intentionally caused a back-up of raw sewage into Mr. Waltman’s property.
225. Defendants did not have the consent of Mr. Waltman to cut and cap their
sewer line.
226. Defendants did not have privilege to cut and cap Mr. Waltman’s sewer
line.
227. The actions of Defendants in paragraph 83 caused an invasion of waste,
pollution, pestilence, bacteria and noxious odors into Mr. Waltman’s property as averred
in paragraph 109.
228. Therefore by the said invasion, Defendants are liable to Plaintiff, Mr.
Waltman, as trespassers.
229. Defendants further, failed and refused to remove the said invasion from
Plaintiff’s property.
230. Defendants further continued to prevent the removal of sewage from
Plaintiff’s property.
231. Defendants further used their powers as officials of City to coerce Plaintiff
to provide a means of egress for the sewage waste that Defendant City had/has a duty to
remove.
a. termination of sewer service to Plaintiff’s property;
b. accumulation of raw sewage in the basement of Plaintiff’s
iv. bacteria contamination;
v. mold infestation;
vi. the furnace to be unusable;
33
(i) $769 expenses;
WHEREFORE, Plaintiff, Donald J. Waltman, demands judgment against
capacities.
34
Count VI
235. Paragraphs 1 through 234 are hereby incorporated by reference as

though
sewage waste from the Smiths’ property.
237. Defendants, by their actions averred in paragraphs 50-55 and 68-84,
intentionally caused a back-up of raw sewage into the Smiths’ property.
238. Defendants did not have the consent of the Smiths to cut and cap their
sewer line.
239. Defendants did not have privilege to cut and cap the Smiths’ sewer line.
240. The actions of Defendants in paragraph 83 caused an invasion of waste,
pollution, pestilence, bacteria and noxious odors into the Smiths’ property as averred in
paragraph 109.
241. Therefore by the said invasion, Defendants are liable to Plaintiffs, Smiths’
as trespassers.
242. Defendants further, failed and refused to remove the said invasion from
Plaintiffs’ property.
243. Defendants further continued to prevent the removal of sewage from
Plaintiffs’ property.
244. Defendants further used their powers as officials of City to coerce
Plaintiffs to provide a means of egress for the sewage waste that Defendant City had/has
a duty to remove.
245. Plaintiffs suffered the following damages as a direct and proximate result
of Defendants’ actions:
35
a. the total loss of the value of Plaintiffs’ property, $29,000;
c. personal losses and monetary expenses relating to Plaintiffs’
(i) $200 expenses;
of Plaintiff.
WHEREFORE, Plaintiffs, Smiths’, demand judgment against Defendants in an
structure on Plaintiffs’ property.
capacities.
fees.
36
Abnormally Hazardous Activity
Count VII

George E. Hiddeman, Jason E. Tribue,
Edward F. Chambers
247. Paragraphs 1-246 are hereby incorporated by reference as though fully set
forth herein.
248. The risk of harm and destruction from Defendants’ activity, averred in
paragraphs 81- 84 was unusually high.
249. The said sewage back-up occurred as direct and proximate result of
Defendants’ activity as averred in paragraphs 81-84, and was easily foreseeable by an
ordinary and reasonable person.
250. The acting of blocking or capping a sewer line as averred in paragraph 83
is not a common or usual act under the circumstances, i.e., the same line being “live” as
averred in paragraph 82.
251. Despite the aforesaid, Defendants preceded to perform the said activity
without regard.
252. Plaintiff suffered the following damages as a direct and proximate result of
Defendants’ actions:
(i) $769 expenses;
37
of Plaintiff.
capacities.
Count VIII
Edward F. Chambers
38
forth herein.
255. The risk of harm and destruction from Defendants’ activity, averred in
paragraphs 81- 84 was unusually high.
256. The said sewage back-up occurred as direct and proximate result of
Defendants’ activity as averred in paragraphs 81-84, and was easily foreseeable by an
ordinary and reasonable person.
257. The acting of blocking or capping a sewer line as averred in paragraph 83
is not a common or usual act under the circumstances, i.e., the same line being “live” as
averred in paragraph 82.
258. Despite the aforesaid, Defendants preceded to perform the said activity
without regard.
259. Plaintiffs suffered the following damages as a direct and proximate result
of Defendants’ actions:
a. the total loss of the value of Plaintiffs’ property, $29,000;
c. personal losses and monetary expenses relating to Plaintiffs’
(i) $200 expenses;
of Plaintiff.
WHEREFORE, Plaintiffs, Smiths’, demand judgment against Defendants in an
39
structure on Plaintiffs’ property.
capacities.
fees.
Violation of Constitutionally Protected Rights

Pursuant to 42 U.S.C. §1983
Deprivation of Real Property- Substantive Due Process Rights Protected
by U.S.C.A. Const.Amend 5; Art. 1, § 10
through the Fourteenth Amendment of the United States Constitution
Count IX

Edward F. Chambers
forth herein.
40
262. Defendant individuals, identified in paragraphs 5-10, are hereby averred to
be individually liable for the within violations of Plaintiff’s constitutionally protected
rights.
263. Plaintiff is a fortiori, i.e., the actual property owner by deed of 1605
Thompson Street since July of 1988.
264. Plaintiff thereby possesses an interest in such property worthy of
substantive due process protection.
265. Plaintiff has a real property interest in the party-line sewer system that
runs in part across the subservient property of 1604 Derry Street in that:
a. the same sewer system is necessary and essential for the utilization
of Plaintiff’s real property of 1605 Thompson Street;
b. Plaintiff’s real property interest is in the form of both incorporeal
and possessory interests:
i. by necessity;
ii. by appurtenance;
iii. by conveyance;
iv. by implication;
v. by prescription;
266. Defendants caused and effected a taking of Plaintiff’s private real property
without payment of just compensation in direct violation of U.S.C.A. Const.Amend 5;
Art. 1, § 10, and the Pennsylvania Constitution, Article 1, Section 10.
267. Defendants failed in their constitutional duty to prevent harm to Plaintiff’s
property by their purposeful and intentional actions and inactions averred in paragraphs
50-55, 68-84, 113.
268. The averred purposeful and intentional blocking of Plaintiff’s sewer line
by City officials, using their police powers, and subsequently failing to warn Plaintiff of
the blockage, thereby allowing the sewage to back-up and accumulate in Plaintiff’s
basement, are acts which shock the conscience.
269. Defendants never held or attempted to hold any meetings with Plaintiff or
initiate any legal process relating to the aforesaid acts prior to taking such acts.
41
270. Defendants acquired through their police powers, Plaintiff’s property
interest, averred in paragraph 30, in the face of Plaintiff’s refusal to surrender such.
271. Compensation to Plaintiff for his losses averred in paragraph 118 was
never made or secured by Defendants and Defendants continue to refuse compensation to
Plaintiff.
272. Defendants instead responded to Plaintiff’s said Notification, Exhibit “G”,
by maliciously and wrongfully initiating proceedings against Plaintiff in the form of a
City Order, Exhibit “H”.
273. The actions and inactions of Individual Defendants formed, and continue
to form, a pattern of things, acts, and/ or incidents that comprise a policy, custom,
practice and/or usage of Defendants City and Authority.
274. The said policy, custom, practice and/or usage of Defendants City and
Authority was and continues to be, directly and causally linked, and closely related to the
deprivation of Plaintiff’s respective Constitutional rights to ownership and peaceful
enjoyment of private property.
Authority constitutes deliberate indifference to the respective Constitutional rights of
Plaintiff as guaranteed by the First and Fourteenth Amendments of the United States
Constitution, to ownership and peaceful enjoyment of private property.
276. The individual Defendants performed the aforesaid acts with knowledge
and intent and with reckless indifference and disregard for Plaintiff’s procedural and
substantive due process property rights as guaranteed by U.S.C.A. Const.Amend 5; Art.
1, § 10 and the Fourteenth Amendment of the Constitution of the United States, and by
Article I, sections 1 and 26 of the Pennsylvania Constitution.
277. Defendants’ actions were taken while acting under color of state law to
deprive Plaintiff of his rights as protected by U.S.C.A. Const.Amend 5; Art. 1, § 10 and
the Fourteenth Amendment of the Constitution of the United States, and by Article I,
sections 1 and 26 of the Pennsylvania Constitution.
278. Plaintiff’s constitutionally protected rights should have been known to a
reasonable person at the time such actions were taken.
42
279. Defendants’ acts were done under the guise of official policy, custom,
statute, regulation, ordinance, practice and/or usage of City and the laws of the
Commonwealth of Pennsylvania, within the meaning of 42 U.S.C. §1983.
280. Defendants actions were taken to deprive Plaintiff of his real property
rights and privileges guaranteed by the U.S.C.A. Const.Amend 5; Art. 1, § 10 and the
Fourteenth Amendment of the Constitution of the United States, and by Article I, sections
1 and 26 of the Pennsylvania Constitution, and were taken to permanently disrupt and
terminate Plaintiff’s use of his real property interest in the said party-line sewer system in
violation of 42 U.S.C. §1983.
281. Defendants actions further were taken to deprive Plaintiff of his real
property rights, i.e. to own, possess, use, and enjoy private property and the increments
and fruits thereof, guaranteed by Article I, sections 1 and 26 of the Pennsylvania
Constitution.
282. The individual Defendants acted with malice and/or reckless or callous
indifference to the Plaintiff’s federally protected rights and with the intention of causing,
or reckless and callous disregard of the probability of causing, damages, injury, and
emotional distress to Plaintiff, and Plaintiff should recover punitive damages.
283. The foregoing conduct of Individual Defendants has caused Plaintiff to
have suffered and continue to suffer general and special damages, including but not
limited to deprivation of civil rights, deprivation of his real property, financial losses, loss
of income, mental anguish, emotional distress, loss of enjoyment of life, loss of
opportunity, and other damages and expenses, the total amount of which will be proved at
the time of trial.
284. Plaintiff is entitled to recover attorneys’ fees and costs pursuant to 42
U.S.C. §1988.
43
capacities.
Count X
Edward F. Chambers
forth herein.
286. Defendant individuals, identified in paragraphs 5-10, are hereby averred to
be individually liable for the within violations of Plaintiffs’ constitutionally protected
rights.
287. Plaintiffs are fortiori, i.e., the actual property owners by deed of 1601
Thompson Street since July of 1988.
288. Plaintiffs thereby possess an interest in such property worthy of
substantive due process protection.
289. Plaintiffs have a real property interest in the party-line sewer system that
runs in part across the subservient property of 1604 Derry Street in that:
a. the same sewer system is necessary and essential for the utilization
of Plaintiffs’ real property of 1601 Thompson Street;
b. Plaintiffs’ real property interest is in the form of both incorporeal
and possessory interests:
44
i. by necessity;
ii. by appurtenance;
iii. by conveyance;
iv. by implication;
v. by prescription;
290. Defendants caused and effected a taking of Plaintiffs’ private real property
without payment of just compensation in direct violation of U.S.C.A. Const.Amend 5;
Art. 1, § 10, and the Pennsylvania Constitution, Article 1, Section 10.
291. Defendants failed in their constitutional duty to prevent harm to Plaintiffs’
property by their purposeful and intentional actions and inactions averred in paragraphs
50-55, 68-84, 113.
292. The averred purposeful and intentional blocking of Plaintiffs’ sewer line
by City officials, using their police powers, and subsequently failing to warn Plaintiffs of
the blockage, thereby allowing the sewage to back-up and accumulate in Plaintiffs’
basement, are acts which shock the conscience.
293. Defendants never held or attempted to hold any meetings with Plaintiffs or
initiate any legal process relating to the aforesaid acts prior to taking such acts.
294. Defendants acquired through their police powers, Plaintiffs’ property
interest, averred in paragraph 30, in the face of Plaintiffs’ refusal to surrender such.
295. Compensation to Plaintiffs for his losses averred in paragraph 117 was
never made or secured by Defendants and Defendants continue to refuse compensation to
Plaintiffs.
296. Defendants instead responded to Plaintiffs’ said Notification, Exhibit “E”,
by maliciously and wrongfully initiating proceedings against Plaintiffs in the form of a
City Order, Exhibit “F”.
297. The actions and inactions of Individual Defendants formed, and continue
to form, a pattern of things, acts, and/ or incidents that comprise a policy, custom,
practice and/or usage of Defendants City and Authority.
45
deprivation of Plaintiffs’ respective Constitutional rights to ownership and peaceful
enjoyment of private property.
Plaintiffs as guaranteed by the First and Fourteenth Amendments of the United States
Constitution, to ownership and peaceful enjoyment of private property.
and intent and with reckless indifference and disregard for Plaintiffs’ procedural and
substantive due process property rights as guaranteed by U.S.C.A. Const.Amend 5; Art.
1, § 10 and the Fourteenth Amendment of the Constitution of the United States, and by
Article I, sections 1 and 26 of the Pennsylvania Constitution.
deprive Plaintiffs of his rights as protected by U.S.C.A. Const.Amend 5; Art. 1, § 10 and
the Fourteenth Amendment of the Constitution of the United States, and by Article I,
sections 1 and 26 of the Pennsylvania Constitution.
302. Plaintiffs’ constitutionally protected rights should have been known to a
304. Defendants actions were taken to deprive Plaintiffs of his real property
rights and privileges guaranteed by the U.S.C.A. Const.Amend 5; Art. 1, § 10 and the
Fourteenth Amendment of the Constitution of the United States, and by Article I, sections
1 and 26 of the Pennsylvania Constitution, and were taken to permanently disrupt and
terminate Plaintiffs’ use of his real property interest in the said party-line sewer system in
violation of 42 U.S.C. §1983.
305. Defendants actions further were taken to deprive Plaintiffs of his real
Constitution.
46
indifference to the Plaintiffs’ federally protected rights and with the intention of causing,
emotional distress to Plaintiffs, and Plaintiffs should recover punitive damages.
307. The foregoing conduct of Individual Defendants has caused Plaintiffs to
the time of trial.
308. Plaintiffs are entitled to recover attorneys’ fees and costs pursuant to 42
U.S.C. §1988.
WHEREFORE, Plaintiffs, Richard L. Smith and Sara E. Smith, demand judgment
against Defendants in an amount that exceeds the compulsory arbitration limit in Dauphin
capacities.
5. Award Plaintiffs his costs, expenses, and reasonable attorneys’
fees.
Deprivation of Procedural Due Process Rights under
47
The Fourteenth Amendment of the United States Constitution
Count XI

forth herein.
310. Plaintiff is a fortiori, i.e., the actual property owner of 1605 Thompson
Street since July of 1988 and has a real property interest in the said party-line sewer
system as averred in paragraph 30.
311. Defendants actions and inactions averred in paragraphs 50-55, 68-84, 113,
were the direct and proximate cause of Plaintiff’s deprivation of 1605 Thompson Street.
312. Defendants failed in their constitutional duty to follow any pre-deprivation
procedure prior to causing the dispossession of Plaintiff’s right to use the said party-line
sewer system.
313. Defendants failed in their duty to inform, alert, or warn Plaintiff of their
said actions.
314. Plaintiff served a Notification, Exhibit “G”, on Defendant Mayor Reed,
alerting him to the destruction caused by Defendants’ actions averred in paragraphs 50-
55, 68-84, 113.
315. Despite the said Notification, Defendants failed in their constitutional duty
to hold or perform any post-deprivation procedure to compensate Plaintiff.
316. Defendants instead responded maliciously to Plaintiff’s said Notification
by wrongfully initiating legal proceedings against Plaintiff in the form of a City Order,
Exhibit “H”.
48
substantive due process property rights as guaranteed by the Fourteenth Amendment of
the Constitution of the United States and by Article I, sections 1 and 26 of the
Pennsylvania Constitution.
deprive Plaintiff of his rights as protected by the Fourteenth Amendment of the
Constitution of the United States and by Article I, sections 1 and 26 of the Pennsylvania
Constitution.
rights and privileges guaranteed by the Fourteenth Amendment of the United States
Constitution and were taken to permanently disrupt and terminate Plaintiff’s use of his
real property interest in the said party-line sewer system in violation of 42 U.S.C. §1983.
322. Defendants actions further were taken to deprive Plaintiff of his real
Constitution.
the time of trial.
49
U.S.C. §1988.
capacities.
Count XII
forth herein.
327. Plaintiffs are fortiori, i.e., the actual property owners by deed of 1601
Thompson Street since July of 1988 and has a real property interest in the said party-line
sewer system as averred in paragraph 30.
328. Defendants actions and inactions averred in paragraphs 50-55, 68-84, 113,
were the direct and proximate cause of Plaintiffs’ deprivation of 1601 Thompson Street.
50
329. Defendants failed in their constitutional duty to follow any pre-deprivation
procedure prior to causing the dispossession of Plaintiffs’ right to use the said party-line
sewer system.
330. Defendants failed in their duty to inform, alert, or warn Plaintiffs of their
said actions.
331. Plaintiffs served a Notification, Exhibit “E”, on Defendant Mayor Reed,
alerting him to the destruction caused by Defendants’ actions averred in paragraphs 50-
55, 68-84, 113.
332. Despite the said Notification, Defendants failed in their constitutional duty
to hold or perform any post-deprivation procedure to compensate Plaintiffs.
333. Defendants instead responded maliciously to Plaintiffs’ said Notification
by wrongfully initiating legal proceedings against Plaintiffs in the form of a City Order,
Exhibit “F”.
deprive Plaintiffs of his rights as protected by the Fourteenth Amendment of the
Constitution.
338. Defendants actions were taken to deprive Plaintiffs of his real property
Constitution and were taken to permanently disrupt and terminate Plaintiffs’ use of his
real property interest in the said party-line sewer system in violation of 42 U.S.C. §1983.
51
339. Defendants actions further were taken to deprive Plaintiffs of his real
Constitution.
the time of trial.
342. Plaintiffs is entitled to recover attorneys’ fees and costs pursuant to 42
U.S.C. §1988.
WHEREFORE, Plaintiffs, Richard L. Smith and Sara E. Smith, demand judgment
against Defendants in an amount that exceeds the compulsory arbitration limit in Dauphin
capacities.
5. Award Plaintiffs his costs, expenses, and reasonable attorneys’
fees.
52
Right to Seek Compensation for Substantive Rights Violation and

Freedom to Complain without Retaliation, Protected by
The First Amendment and the
Fourteenth Amendment of the United States Constitution
Count XIII
George E. Hiddeman
forth herein.
344. Plaintiff’s Notification, Exhibit “G” served to inform Defendants of
Plaintiff’s intent to seek compensation for the said property destruction.
345. Defendants, after their unconstitutional taking of Plaintiff’s private real
property, retaliated against Plaintiff for the said Notification by maliciously and
wrongfully initiated legal proceedings against Plaintiff in the form or a City Order,
Exhibit “H”.
346. The said proceedings initiated against Plaintiff contained criminal
penalties for Plaintiff’s non-compliance to City’s Order.
347. The said Notification was the direct and proximate cause of Defendants’
wrongful proceedings initiated against Plaintiff.
348. The actions of Individual Defendants formed, and continue to form, a
pattern of things, acts, and/ or incidents that comprise a policy, custom, practice and/or
usage of Defendants City and Authority.
deprivation of Plaintiff’s respective Constitutional rights to free speech.
53
Plaintiff as guaranteed by the First and Fourteenth Amendments of the United States
Constitution, to free speech.
351. The wrongful proceedings served to deprive Plaintiff of his rights,
privileges, and immunities guaranteed under the First and Fourteenth Amendment of the
Constitution of the United States.
352. The wrongful proceedings were initiated to disrupt, otherwise suppress,
chill, and punish Plaintiff for exercising his constitutionally protected rights to seek
compensation under the Fourteenth Amendment of the Constitution of the United States,
in violation of 42 U.S.C. §1983.
353. Defendants’ wrongful proceedings served to “chill” Plaintiff’s First
Amendment rights to free speech and expression.
354. Defendants’ said lawsuit further served to interfere with Plaintiff’s said
rights to seek compensation protected under the Fourteenth Amendment of the
Constitution.
deprive Plaintiff of his rights as protected by the Fourteenth Amendment of the
Constitution.
54
Constitution and were taken to continue the permanent disruption to and termination of
Plaintiff’s use of his real property interest in the said party-line sewer system in violation
of 42 U.S.C. §1983.
360. Defendants actions further were taken to continue to deprive Plaintiff of
his real property rights, i.e. to own, possess, use, and enjoy private property and the
increments and fruits thereof, guaranteed by Article I, sections 1 and 26 of the
the time of trial.
U.S.C. §1988.
capacities.
55
Count XIV
George E. Hiddeman
forth herein.
365. Plaintiffs’ Notification, Exhibit “E” served to inform Defendants of
Plaintiffs’ intent to seek compensation for the said property destruction.
366. Defendants, after their unconstitutional taking of Plaintiffs’ private real
property, retaliated against Plaintiffs for the said Notification by maliciously and
wrongfully initiated legal proceedings against Plaintiffs in the form or a City Order,
Exhibit “F”.
367. The said proceedings initiated against Plaintiffs contained criminal
penalties for Plaintiffs’ non-compliance to City’s Order.
368. The said Notification was the direct and proximate cause of Defendants’
wrongful proceedings initiated against Plaintiffs.
369. The actions of Individual Defendants formed, and continue to form, a
pattern of things, acts, and/ or incidents that comprise a policy, custom, practice and/or
usage of Defendants City and Authority.
deprivation of Plaintiffs’ respective Constitutional rights to free speech.
56
Plaintiffs as guaranteed by the First and Fourteenth Amendments of the United States
Constitution, to free speech.
372. The wrongful proceedings served to deprive Plaintiffs of their rights,
privileges, and immunities guaranteed under the First and Fourteenth Amendment of the
Constitution of the United States.
373. The wrongful proceedings were initiated to disrupt, otherwise suppress,
chill, and punish Plaintiffs for exercising his constitutionally protected rights to seek
compensation under the Fourteenth Amendment of the Constitution of the United States,
in violation of 42 U.S.C. §1983.
374. Defendants’ wrongful proceedings served to “chill” Plaintiffs’ First
Amendment rights to free speech and expression.
375. Defendants’ said lawsuit further served to interfere with Plaintiffs’ said
rights to seek compensation protected under the Fourteenth Amendment of the
Constitution.
deprive Plaintiffs of their rights as protected by the Fourteenth Amendment of the
Constitution.
380. Defendants actions were taken to deprive Plaintiffs of their real property
Constitution and were taken to continue the permanent disruption to and termination of
57
Plaintiffs’ use of his real property interest in the said party-line sewer system in violation
of 42 U.S.C. §1983.
381. Defendants actions further were taken to continue to deprive Plaintiffs of
their real property rights, i.e. to own, possess, use, and enjoy private property and the
increments and fruits thereof, guaranteed by Article I, sections 1 and 26 of the
the time of trial.
384. Plaintiffs is entitled to recover attorneys’ fees and costs pursuant to 42
U.S.C. §1988.
WHEREFORE, Plaintiffs, Richard L. Smith and Sara E. Smith, demands
judgment against Defendants in an amount that exceeds the compulsory arbitration limit
in Dauphin County and requests that this Honorable Court:
capacities.
58
fees.
_________________________________
Donald J. Waltman
616 North Second Street
Steelton, PA 17113
________________________________
Richard L. Smith
2209 Berryhill Street
Harrisburg, PA 17104
_________________________________
Sara E. Smith
2209 Berryhill Street
Harrisburg, PA 17104
59

Complaint Print Ver

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Complaint Print Ver

Загружено:

Авторское право:

Доступные форматы

IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA

DONALD J. WALTMAN : CIVIL COMPLAINT

Defendants : JURY TRIAL DEMANDED

152. Paragraphs 1 through 151 are hereby incorporated herein by reference as

170. Paragraphs 1 through 169 are hereby incorporated herein by reference as

222. Paragraphs 1 through 221 are hereby incorporated by reference as though

235. Paragraphs 1 through 234 are hereby incorporated by reference as

Plaintiff: Donald J. Waltman

Violation of Constitutionally Protected Rights

Plaintiff: Donald J. Waltman

Deprivation of Procedural Due Process Rights under

Plaintiff: Donald J. Waltman

Right to Seek Compensation for Substantive Rights Violation and

Вам также может понравиться