SCRANTON – A pair of property owners and a campground foundation in Scranton deny that construction that took place on a campsite violates the terms of a 2005 property sale agreement that the defendants pledged to abide by.
The Jewish Community Center of Scranton filed suit in the Lackawanna County Court of Common Pleas on April 19 versus Michael Hatala of Old Forge, and Dominick Policare and The Childrens Free Campground Facilities Foundation, both of Wyoming, Pa.
In December 2005, the JCC entered into an agreement with defendants Hatala and Policare for the sale of the property at issue, 100 acres of land in Covington Township, located in Lackawanna County. Four parcels of that land were sold in the deal for $500,000.
After the defendants made the required installment payments according to the agreement, the property was transferred by deed to the defendants on Nov. 3, 2011.
“After the execution of this agreement of sale and the payment of the $100,000, buyers (Hatala and Policare) shall be permitted to construct a single residential building on the subject premises, if but only if the construction, placement, use, size, and aesthetics of said residential building are approved by the seller in writing prior to commencement of any construction by buyers,” the suit states.
“Buyers shall be solely responsible to obtain any and all necessary permits and approvals for the construction of the aforesaid building. Buyers shall keep same fully insured against all perils. Irrespective of whether buyers construct a building, upon the execution of this agreement of sale buyers shall purchase general liability insurance in the minimum amount of $1,000,000 naming seller an additional insured as its interests may appear.”
“On or about April 6, 2021, representatives of plaintiff visited the property to conduct a visual inspection of same prior to the commencement of this year’s day camp program. Upon arriving at the property, plaintiff’s representatives discovered that defendants had unilaterally and in contradiction to the Installment Agreement, began construction of a single residential building.”
The defendants were said to have not provided any construction plans to the plaintiff.
Furthermore, the most important reason for the plaintiff’s right to review the construction plans prior to construction of same is, the suit states, the plaintiff’s “duty to ensure the safety, protection, well-being, welfare and security of the 150 child campers and staff that will visit the property on a daily basis beginning this spring/summer.”
“The only materials sent to plaintiff regarding the construction of defendants’ structure are the general plans for the exterior and interior of the home. To date, plaintiff has not received any further plans, including final plans, subdivision plan, safety precautions and protocols, grading, drainage, building location, orientation, driveway access, parking, landscaping, construction, placement, use, size and aesthetics of home,” per the suit.
“To date, defendants have not provided the requested information other than the initial plans sent by attorney Kevin M. Conaboy, despite repeated attempts to do so and despite their required obligation to do so.”
UPDATE
In a May 7 answer to the complaint, the defendants averred that Hatala had submitted plans for construction to the plaintiff, received verbal permission to commence construction from Harris Cutler, past President of the JCC, and any agreement between the parties applicable herein contains no requirement for a “safety plan, fence or other structure securing the site.”
“Plaintiff’s complaint fails to state a cause of action upon which relief may be granted; fails to allege facts which support its claim for injunctive relief; is barred and/or limited by the doctrine of unclean hands, as plaintiffs have repeatedly failed to comply with the requirements of the Installment Sales Agreement and prior Orders of Court; is barred and/or limited by the doctrine of laches and is barred and/or limited by plaintiff’s own breach of contract,” the new matter stated.
“Plaintiff’s complaint is barred by plaintiff’s unreasonable withholding of the permission it alleges has not been granted; is barred and/or limited by the doctrine of merger; is barred and/or limited by the rule against perpetuities; is barred and/or limited by plaintiff’s unilateral refusal to enter into the Lease contemplated by the deed between the parties and fails to establish immediate, irreparable harm.”
For counts of motion for preliminary injunction and breach of contract, the plaintiff is seeking an injunction to prevent any construction on the property, until any such plans are fully approved by the plaintiff.
The plaintiff is represented by Howard A. Rothenberg and Ryan P. Campbell of Rothenberg & Campbell, in Scranton.
The defendants are represented by Kevin M. Conaboy of Abrahamsen Conaboy & Abrahamsen, also in Scranton.
Lackawanna County Court of Common Pleas case 2021-CV-01739
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com