MEDIA – A group of Delaware County neighbors who had alleged that an adjacent contractor’s materials-crushing operations were creating a private and public nuisance and violating a local township ordinance for noise and air quality, now has two less plaintiffs to oppose that contractor in court.
Ryan and Maura Steele, Anthony and Nicole Skwirut and Paul and Maryann Luczeczko collectively first filed suit in the Delaware County Court of Common Pleas on Jan. 15 versus Joseph F. Mariani Contractors, Inc. All parties are of Aston.
“The defendant operates a business at the defendant’s property that performs site work contracting and excavation. On or about 2015-2016, the defendant purchased rock crushing machinery and began accepting and crushing concrete, blacktop, cinderblock brick and masonry materials on the defendant’s property several days per week, year-round. As part of the crushing operations, the defendant uses large heavy machinery to crush the various materials and move the materials around on the defendant’s property, including an industrial rock crusher, hydraulic excavators, bulldozer and dump truck,” the suit stated.
“The crushing operations on the defendant’s property causes excessive dust to enter onto the plaintiffs’ respective properties, both inside and outside of the plaintiffs’ homes. The noise, vibrations and dust from the defendant’s crushing operations are so continuous and intolerable that plaintiffs and their families are disturbed and annoyed during such operations and are therefore unable to peacefully enjoy their homes or to pursue their normal activities in peace and quiet. The noise, vibrations and dust from the defendant’s crushing operations occur almost on a daily basis and at times start as early as 5:30 in the morning and sometimes during the middle of the night.”
The plaintiffs argued that the defendant has continued to violate the Aston Township Ordinance Performance Standards, but faced no enforcement consequences from the township in nearly four years.
“The vibrations from the crushing operations shake the plaintiffs’ respective homes, rattles windows and tabletop décor to such extent that items inside of the homes can be heard rattling and can be seen moving. The dust coming from the crushing operations visibly accumulates on and in the plaintiffs’ homes, vehicles and other items and is breathed in by the plaintiffs. The plaintiffs are forced to close their windows to try and keep the dust from entering their homes. The plaintiffs have complained numerous times to the defendant about the noise, vibrations and dust affecting their properties by the crushing operations,” according to the lawsuit.
“The continued excessive noise, vibrations and dust coming from the defendant’s crushing operations onto the plaintiffs’ respective properties as experienced by the plaintiffs has interfered with their use and enjoyment of their properties. The continued excessive noise, vibrations and dust coming from the defendant’s crushing operations onto the plaintiffs’ respective properties, as experienced by the plaintiffs, negatively affects the value of their properties.”
“It is further specifically denied that any work performed on answering defendant’s property causes ‘noise, vibrations and/or dust’ and strict proof thereof is demanded. After reasonable investigation, answering defendant is without information sufficient to form a belief as to the truth of the remainder of this averment and therefore strict proof thereof is demanded,” the answer said, in part.
“It is further specifically denied that any work performed at answering defendant’s property occurs on a daily basis starting as early as 5:30 in the morning or during the middle of the night and strict proof thereof is demanded.”
In a March 2 answer along with new matter, the contractor asserted that the plaintiffs, or other unnamed third parties, are liable for the damages being contested.
“Plaintiffs’ complaint fails to state a claim upon which relief can be granted. No omissions or conduct on the part of answering defendant caused and/or contributed to plaintiffs’ alleged damages, if any. Plaintiffs failed to mitigate his/her/their damages and their recovery is barred and/or limited by the plaintiffs’ failure to properly mitigate his/her/their damages,” per the new matter.
“The plaintiffs’ assumed the risk of any damages alleged. The damages complained of by plaintiffs pre-existed or are unrelated to the subject matter of this complaint. Plaintiffs’ alleged damages, if any, were proximately caused in whole, or in part, by the bulk of third parties, including plaintiffs, for whom answering defendant is not legally responsible. Plaintiffs’ claims are barred or limited by the applicable statute of limitations.”
On March 5, the plaintiffs replied to the answer by denying the defendant’s new matter as conclusions of law to which no response is required.
UPDATE
After 8 months of legal inactivity, counsel for all parties mutually filed a dismissal stipulation as to the Steele plaintiffs.
“The parties, through their undersigned counsel, hereby stipulate that plaintiffs Ryan Steele and Maura Steele are dismissed as parties to this action as they no longer own their property and have no interest in the claims brought herein,” the stipulation said.
For counts of private nuisance, public nuisance and local noise ordinance violation, the plaintiffs are seeking an order restraining and enjoining the defendant, its agents, servants, employees and invitees, from making, or causing to be made, any such noises, vibrations and airborne particulate in violation of the Aston Township ordinances, and from otherwise performing said crushing operations (including but not limited to the use of any vehicles and machinery involved in said operations) on defendant’s property, and award plaintiffs costs and any other relief the Court may deem just and proper.
The plaintiffs are represented by David J. Scaggs of The Granger Firm, in Paoli.
The defendants are represented by Andrew R. Benedict of Bardsley Benedict & Cholden, in Philadelphia.
Delaware County Court of Common Pleas case CV-2021-000525
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com