Dunbar v. Rivello

34 Pa. D. & C.5th 87
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedNovember 4, 2013
DocketNo. 13 CV 3052
StatusPublished

This text of 34 Pa. D. & C.5th 87 (Dunbar v. Rivello) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunbar v. Rivello, 34 Pa. D. & C.5th 87 (Pa. Super. Ct. 2013).

Opinion

NEALON, J.,

In the latest legal dispute between Old Forge developers of residential townhouse units and a neighbor who resides near that development, the developers have presented a petition seeking to enjoin the neighbor from trespassing upon the development property, from having any contact with the developers, their employees, current tenants, and [89]*89prospective tenants or purchasers, and from “stalking and/ or photographing” any of those same individuals. Based upon the credible evidence introduced during the three evidentiary hearings, the neighbor will be enjoined from entering the development property, unless such entry is in response to an express invitation by a townhouse tenant. Defendant will also be prohibited from communicating with the developers and their employees, but only to the extent that such contact constitutes terroristic threats, 18 Pa.C.S.A. §2706(a), harassment, 18 Pa.C.S.A. §2709(a), or stalking by communication, 18Pa.C.S.A. §2709.1(a)(2). Additionally, defendant will be enjoined from “stalking” the developers and their employees, as that term is defined in 18 Pa.C.S.A. §2709.1(a)(l). In all other respects, the petition for injunctive relief will be denied, including the requests to bar defendant “from having any contact” or “speaking to” any current tenants, prospective tenants or prospective purchasers of the townhouse units, and to prohibit defendant from photographing the developers, their employees, existing tenants, and prospective tenants or purchasers.

I. PROCEDURAL HISTORY

On June 12,2013, plaintiffs, George Dunbar (“Dunbar”) and Lilac Meadows, Inc. (“Lilac Meadows”), filed a complaint against defendant, Joseph Rivello (“Rivello”), charging him with making “false” and “malicious” statements about Lilac Meadows’ land development project during Old Forge Borough Council meetings, (Docket entry no. 1 at ¶¶7-11, 14-15, 26), trespassing on Lilac Meadows’ property, (Id. at ¶¶19-25), harassing and photographing Dunbar’s employees working at Lilac Meadows’ construction site, (Id. at ¶¶13, 16-17), and threatening “the physical and personal safety” of Dunbar. [90]*90(Id. at ¶18). Dunbar and Lilac Meadows have averred that Rivello “is now seeking to prevent the release to the plaintiffs of almost thirty thousand dollars ($30,000.00) in bond money [by] falsely claiming that the Plaintiffs have violated zoning regulations, construction plans and directives of the Old Forge Borough Council.” (Id. at ¶27). Dunbar and Lilac Meadows further contend that the “statements and actions by [Rivello] are causing harm and damage to the reputation of plaintiff, George Dunbar, who is a well respected business man in the community,” and, therefore, “must be enjoined.” (Id. at ¶¶28-29).

Dunbar and Lilac Meadows also filed a “Petition for Emergency Injunctive Relief’ and secured a Rule to Show Cause which was made returnable for an answer by Rivello on July 5, 2013, with an evidentiary hearing to be held on July 22, 2013. (Docket entry no. 2). Rivello filed an answer and amended answer to the petition for injunctive relief on June 19, 2013, and July 3, 2013. (Docket Entry nos. 5-6). Hearings were conducted on July 22, 2013, August 15, 2013, and September 12, 2013, at which time testimony was received from Dunbar, Eric Vandermark, Officer David Kimble, Officer Jason Dubemas, Rivello and Harold Ash. (Docket entry nos. 9, 11-12). The parties thereafter submitted letter briefs dated September 16, 2013, September 25, 2013, and October 3, 2013. (Docket entry nos. 15-17).

The first twenty-nine paragraphs of the “Petition for Emergency Injunctive Relief’ are identical to the twenty-nine averments contained in the complaint. (Docket entry no. 1 at ¶¶1-29; Docket entry no. 2 at ¶¶1-29). The petition also sets forth the criteria for the issuance of an injunction. (Docket entry no. 2 atfl30-34). In their prayer for relief, Dunbar and Lilac Meadows seek to enjoin [91]*91Rivello “from entering onto the Plaintiffs’ property for any reason,” “from having any contact with or speaking to the Plaintiffs, Plaintiffs’ employees, and/or Plaintiffs’ tenants, prospective tenants, and prospective purchasers,” “from stalking and/or photographing the Plaintiffs, Plaintiffs’ employees, and/or Plaintiffs’ tenants, prospective tenants, and prospective purchasers,” and “from speaking to anyone regarding the [Lilac Meadows] development.” (Docket entry no. 2 at p.7). At the time of the third evidentiary hearing on September 12, 2013, Dunbar and Lilac Meadows withdrew their request to enjoin Rivello from speaking to anyone concerning the Lilac Meadows development project on Edith Street.

When considering requests for injunctive relief, the trial judge acts as the factfinder and makes credibility determinations in resolving any conflicts in the evidence presented. See Shepherd v. Pittsburgh Glass Works, LLC, 25 A.3d 1233, 1245 (Pa. Super. 2011); Hunter v. Bowman, 159 Pa. Cmwlth. 222, 225-226, 633 A.2d 655, 656 (1993). As the factfinder who personally heard the witnesses testify, the trial judge is “in the sole position to observe the demeanor of the witnesses and assess their credibility.” Hirsch v. EPL Technologies, Inc., 910 A.2d 84, 88 (Pa. Super. 2006), app. denied, 591 Pa. 727, 920 A.2d 833 (2007). As a result, the trial judge “may believe all, part or none of the evidence presented.” Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888 (Pa. Super. 2006), app. denied, 599 Pa. 711, 962 A.2d 1197 (2008); Rizzo v. MSA, Inc., 18 Pa. D. & C. 5th 233, 245 (Lacka. Co. 2010), aff’d, 32 A.3d 830 (Pa. Super. 2011). The factual findings set forth in Section II below are based upon the evidence which has been deemed to be competent, credible and relevant.

II. FINDINGS OF FACT

[92]*92Dunbar is the sole owner and principal of Lilac Meadows, which is engaged in the business of developing and constructing rental properties. In 2010, Dunbar was exploring the possibility of purchasing property on Edith Street in the Borough of Old Forge as a potential site for Lilac Meadows’ construction of new townhouse units. Prior to purchasing that land, Dunbar visited the Edith Street property in early September 2010, and reviewed the prepared construction plans at that location. While Dunbar was present at the Edith Street site, a nearby neighbor, Rivello, entered the property and voiced objections to Dunbar regarding his proposed purchase of the Edith Street property and intended construction of townhouse units there. The verbal exchange became heated and culminated with Dunbar demanding that Rivello leave the property.

On September 20, 2010, Dunbar’s counsel forwarded a letter to Rivello stating that Rivello had “repeatedly approached [Dunbar] with regard to ‘objections’ to his proposed project,” and had “been aggressive and threatening” to Dunbar. Dunbar’s counsel informed Rivello that Dunbar was “purchasing a project which was approved years ago by the [Old Forge] Borough Planning Commission and Borough Council,” and that Rivello “had ample opportunity at that time to voice [his] objections or complaints.” Dunbar’s counsel admonished Rivello to “cease approaching my client in a threatening manner,” and stated that “if this conduct does not immediately cease, [Dunbar] will take any and all actions necessary and appropriate under the law to protect himself and his project.”

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Bluebook (online)
34 Pa. D. & C.5th 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunbar-v-rivello-pactcompllackaw-2013.