Motion for Case Management in Pennrose Llc Vs Apc Associates Llc| Trellis.Law

On May 30, 2018 a Answer was filed involving a dispute between Pennrose Llc, and Andre Oliveriera, Annette L Smith, Aparecida S Coutinho, Apc Associates Llc, Carl Muller, Carol L Radomski, Carol Muller, Chakrya K Molinoff, Charles Furlong, Christine E Herb, Christine Greatrex, Daniel Hanks, Daryl F Tonia, David Hercock, Diane Speer, Diego Castellanos, Doris G Blyler, Edward Mulka, Elizabeth Falco, Erika Gore, Eugene M Flacche, Eva Hanks, George C Greatrex Jr, George Freudenberg, Giovanna Ferriera, Hoover Quintero Garcia, Hui Y Shih, James E Weist, Jeffrey B Canfield, Jeffrey D Herb, Jeffrey L Molinoff, Joanne K Welch, John M Pfrommer, John S Radomski, Jose A Coutinho, Joseph Cavalieri, Karen Woznica, Katherine O Schimmel, Keenan Builders Llc, Lee H Schimmel, Margo Furlong, Marie E Kern, Ming T Shih, Muir A Mcmath, Paulette Smith, Rebecca Castellanos, Recon Investment Group Llc, Richard J Smith, Robert Gore, Robert Woznica, Ronnie M Tarchichi, Roseanne M Canfield, Russell Smith, Scott G Kern, Sigmund Tonia, Susan M Stevens, Syeda F Ahmed, Syed M Ahmed, Theodore J Speer Jr, Thomas B Mitchell, Umur Selek, Vito Brasile, Warren G Blyler, Wongsduan Mulka, for Mt. Laurel in the District Court of Burlington County.

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BUR L 001147-18 05/30/2018 Pg 1 of 14 Trans ID: LCV20181037562
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The Law Olfices of Mark G. Carusillo
2050 Fairfax Avenue - Suite B
Cherry Hill, NJ 08003
(856) 267-s32s
Attomey ID #010612001
Attomey for Third-Party Defendants, Jeftey
D. Herb and Christine E. Herb

IN THE MAT"TER OF THE SUPERIOR COURT OF NEW JERSEY
APPLICATION OF THE TOWNSHIP OF LAW DTVISION
MOORESTOWN, COTINTY OF
BURLINGTON BURLINGTON COLI}JTY

DOCKET NO.: L-l604-15
PENNROSE, LLC
CTVIL ACTION
Third-Party Plaintiff
ANSWER AND AFFIRMATIVE
DET'ENSES TO TEIRD-PARTY
COMPLAINT
APC ASSOCIATES, LLC, et als.,

Third-Party Defendants

Third-Party Defendants, Jeffrey D. Herb and Christine E. Herb (collectively "Herb"), by

and through their undersigned counsel and by way of Answer to Defendant-lntervenor, Third-

Party Plaintiff, Pornrose, LLC's ("Pennrose"), Third-Parry Complaint say as follows:

INTRODUCTION

1. Admitted that Penffose has filed a Third-Party Complaint. The rernaining

allegations in this paragraph are legal conclusions and as such no response is required.

2. Admitted that Pennrose's Third-Party Complaint does not seek money damages.

The remaining allegations in this paragraph are legal conclusions and as such no response is

required.
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TIIE PARTIES

3. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs,

4. Herb is udthout knowledge or information sufficiant to respond to the allegations

in this Paragraph and therefore leaves Peffrose to its strict proofs.

5. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pemrose to its strict proofs.

6. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

7. Herb is without knowledge or information sufficient to respond !o the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

8. He$ is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pemrose to its strictproofs.

9. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pemrose to its strict proofs.

10. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Peflffose to its strict proofs.

11. Herb is without knowledge or information sufficienl to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

12. Herb is without knowledge or information sufEcient to respond to the allegations

in this Paragraph and therefore leaves Penffose to its strictproofs.

13. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

2
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14. Herb is without knowledge or information sufEcient to respond to the allegations

in this Paragraph and therefore leaves Penffose to its strict proofs.

15. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

16. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its shict proofs.

17. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

18. Admitted.

19. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Peffrose to its strictproofs.

20. Herb is,without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

21. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Penffose to its strict proofs.

22. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pefi[ose to its strict proofs.

23. Herb is without knowledge or information sufEcient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

24. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Perurose to its strict proofs.

25. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its sfict proofs.

3
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26. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pemrose to its sEict proofs.

27. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strictproofs.

28. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

29. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pemrose to its strict proofs.

30. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pefffose to its strictproofs.

31. Herb is without knowledge or information sufficient to rcspond to the allegations

in this Paragraph and therefore leaves Pennrose to its sbict proofs.

32. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

33. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pefifose to its strict proofs.

34. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pefftrose to its strict proofs.

35. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Permrose to its strict proofs.

36. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Peffrose to its strictproofs.

4
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37 . Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pemrose to its strictproofs.

38. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

39. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

40. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

41. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

42. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pemrose to its strict proofs.

43. Herb is without knowledge or information sufEcient to respond to the allegations

in this Paragraph and therefore leaves Penrrose to its strictproofs.

M. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Peuuose to its strict proofs.

45. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Permrose to its strict proofs.

46. Herb is without knowledge or information sufficieat to respond to the allegations

in this Paragraph and therefore leaves Perurose to its strictproofs.

5
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FACTUAL BACKGROT]ND

A. Histon of the Prooertv the Restrictive Covenant

47. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

48. The I939 Indenture is a writing which speaks for itself.

49. The 1 945 Indenture is a writing which speaks for itself.

50. The 1945 lndenture is a writing which speaks for itself.

51. T\e 1947 Indenture is a writing which speaks for itself.

52. Admitted that "all resbictions, conditions and easements of record" including the

Restrictive Covenant continue to run with the land. Herb is without knowledge or information

sufficient to respond to the remaining allegations in this Paragraph and therefore leave Peffrose

to its strict proofs.

B. Pennrose's Intent to Develon the Pronen for Affordable Eousine

53. Herb is without knowledge or information sufficient to respond to the allegations

i-nthis Paragraph and therefore leaves Penru'ose to its strict proofs.

54. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

55. Denied that the Property is ideally suited for multi-family housing. The

remaining allegations are neither admitted nor denied and Peturose is left to its strict proofs.

56. The Restrictive Covenant is a writing that speaks for itself. By way of further

responseJ Herb denies the allegation that "it is clear that the Restrictive Covenant was designed

to reskict the availability of affordable housing within the Township of Moorestown" and leave

Perurose to its strict proofs.

6
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57. The allegations in this paragraph are legal conclusions and as such no response is

required.

58. Denied.

59. Herb is without knowledge or information sufEcient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strictproofs.

60. Admitted.

61 . Denied.

COTJNT ONE
(In validation of Restrictive Covenant - Mount Laurel Doctrine and Public Policy)

62. Herb repeats, realleges and incorporates by reference their response to all

preceding Paragraphs as though fully set forth herein.

63, Herb is without knowledge or information sufficient to respond to the allegations

il this Paragraph and therefore leaves Pennrose to its strictproofs.

64. Neither admitted or denied. Penruose is left to its skictproofs.

65. Denied.

66. Denied.

67. Denied.

WHEREFORE, Third-Paty Defendants, Jeftey D. Herb and Christine E. Herb demand

Judgrnent in their favor, and against Defendant-Intervanor, Third-Party Plaintiff, Pennrose, LLC

as follows:

a. Upholdiog the Deed Restrictions, including the Restrictive Covenant, and

preventing construction of the housing development proposed by Peor:rose;

b. Dismissing Pennrose's Third-Party Complaint with prejudice;

c. Granting Herb an award of attomey's fees and costs; and

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d. Such other relief as the Court deems just and proper.

COUNTTWO
(Invalidation of Restrictive Covenant - Common Larm)

68. Herb repeats, realleges and incorporates by reference their response to all

prec€ding Paragraphs as though fully set forth herein.

69. Herb is without knowledge or information sufEcient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs.

70. Neither admitted or denied. Permrose is left to its strict proofs.

'71. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragaph and therefore leaves Pennrose to its strict proofs.

72. Denied.

73. Denid.
'74. Danied.

75. Denied.

WEEREFORE, Third-Party Defendants, Jeffiey D. Herb and Christine E. Herb demand

Judgnent in their favor, and against Defendant-lntervenor, Third-Party Plaintiff, Pe'nnrose, LLC

as follows:

a. Upholding the Deed Restrictions, including the Restrictive Covenant, and

preventing construction ofthe housing development proposed by Pennrose;

b, Dismissing Pennrose's Third-Party Complaint with prejudice;

c. Granting Herb an award of attomey's fees and costs; and

d. Such other relief as the Court deems just and proper.

8
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COT]NT THREE
(Invalidation of Restrictive Covenant - Itrvalid Neighborhood Scheme)

76. Herb repeats, realleges and incorporates by reference their response to all

preceding Paragraphs as though fully set forth herein.

1'1. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Pennrose to its strict proofs,

78. Neither admitted or denied. Pennrose is left to its strict proofs.

79. Denied.

80. Denied.

WHEREFORE, Third-Party Defendants, Jeftey D. Herb and Christine E. Herb demand

Judgrnent in their favor, and against Defendant-Intervenor, Third-Party Plaintiff, Pennrose, LLC

as follows:

a. Upholding the Deed Reskictions, including the Restrictive Covenant, and

preventing construction ofthe housing development proposed by Pennrose;

b. Dismissing Pennrose's Third-Party Complaint with prejudice;

c. Granting H€rb an award of attomey's fees and costs; and

d. Such other reliefas the Court deems just and proper.

COUNT FOT]R
(Declaratory Judgment)

81. Herb repeats, realleges and incorporates by reference their response to all

preceding Paragraphs as though fully set forth herein.

82. Herb is without knowledge or infomration sufficient to respond to the allegations

in this Paragraph and therefore leaves Penuose to its strict proofs.

83. Neither admitted or denied. Perurose is left to its strict proofs.

9
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84. Herb is without knowledge or information sufficient to respond to the allegations

in this Paragraph and therefore leaves Perurose to its strictproofs.

85. The allegations in this paragraph are legal conclwions and as such no response is

rcquired.

WI{EREFORE, Third-Party Defendants, Jeffiey D. Herb and Christine E. Herb dernand

Judgment in their favor, and against Defendan ntervenor, Third-Party Plaintifi Perurose, LLC

as follows:

a. Upholding the Deed Restrictions, including the Reshictive Covenant, and

preventing construction of the housing development proposed by Pennrose;

b. Dismissing Pennrose's Third-Party Complaint with prejudice;

c. Granting Herb an award of attomey's fees and costs; and

d. Such other relief as the Court deerns just and proper.

AFFIRMATN'E DEFENSES

l. The Third-Party Complaint fails to state a claim upon which relief maybe granted.

2. Pennrose's claims are barred by Estoppel.

3. It is possible to uphold the Restrictive Covenant and to also construct affordable

housing.

4. The Restrictive Covenant at issue creates and promotes a neighborhood scherne

and has not been abandoned.

5. Pennrose lacks standing to bring this lawsuit.

6. The Restrictive Covenant at issue is a valid, enforceable encumbrance against the

property which Pennrose seeks to acquire.

7. Pennrose has failed to exhaust its administrative remodies.

10
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8. The Restrictive Covenant at issue does not prohibit affordable housing.

9. Othsr, unencumbered properties exist in Moorestown Township which are more

appropriate for the development of multi-family dwellings.

10. Herb reserves the right to assert additional Affirmative Defenses learned by

continuing investigation and on-going discovery.

WIIEREFORE, Third-Party Defendants, Jeffiey D. Herb and Christine E. Herb dernand

Judgnent in their favor, and against Defendant-Intervenor, Third-Party Plaintiff, Pennrose, LLC

as follows:

a. Upholding the Deed Restrictions, including the Restrictive Covenant, and

preventing construction ofthe housing development proposed by Pennrose;

b. Dismissing Pennrose's Third-Party Complaint with prejudice;

c. Granting H€rb an award of attomey's fees and costs; and

d. Such other relief as the Court deerns just and proper.

Mark G. Carusillo, Esq.
Dated: May 16,2018 Attomey for Third-Party Defendants,
JefAey D. Herb and Christine E. Herb

DESIGNATION OF TRIAL CO{INSEL PURSUANT TO R.4:5. 1(c)

PLEASE TAKE NOTICE that Mark G. Canrsillo, Esq. is hereby desipated as tsial

counsel for Defendants, Jeftey D. Herb and Christine E. H

Mark G. Carusillo, Esq.
Dated: May 16,2018 Attomey for Third-Party Defendants,
Jeffrey D. Herb and Christine E. Herb

1l
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CERTIFICATION PURSUANT TO R 1:3&(b)

I hereby certifu that confidential personal identifiers have been redacted from documents

now submitted to the court, and will be redacted from all documents submitted in the future in

accordance with Rule l:35-7(b); (e) the foregoing stat€,ments made by me are true and correct to

the best ofmy knowledge, infonnation and belief.

Mark G. Carusillo, Esq.
Dated: May 16,2018 Aftomey for Third-Party Defendants,
Jeffiey D. Herb and Christine E. Herb

CERTIFICATION PURSUANT TO R 4:5-l

I hereby certiry that the matter in controversy is not the subject of any other action

pending in any Court, nor the subject of a pending arbitration proceeding. Also, no other action

or arbitration proceeding is contemplated. Further, other than the parties set forth in this

pleading, no other party shall be joined in the within action, and, in the event that there is a

change in the facts stated herEin, each party has a continuing obligation to file and serve upon all

other parties and the court an amended certification

Mark G. Carusillo, Esq.
Dated: May 16,2018 Attorney for Third-Party Defendants,
Jeffiey D. Herb and Christine E. Herb

12
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CERTIFICATION OF SERVICE

I, Mark G. Carusillo, Esq., hereby certifu that on this l6th day of May, 2018, this Answer

and Affirmative Defenses was filed via eCourts with the Burlington County Superior Court

Clerk, 49 Rancocas Road, Mt. Holly, NJ 08060, and a copy was served via New Jersey Lawyer's

Service to Third-Party Plaintiffs attomey, Kristoffer S. Burfitt, Esq., Sills Cummis & Gross,

P.C., One Riverfront Plaza, Newark, NJ 07102.

Mark G. Carusillo, Esq.

l3
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Civil Case lnformation Statement
Case Details: BURLINGTON lCivil Part Docket# L-001504-15

Caso Captlon: ll\4O APPLICATION OF MOORESTO\ N Case Type: LAUREL
l\,1T.

TO\^ASHIP OF Document Typo: Answer
Case lnitlatlon Dato: 07/08/2015 Jury Oemand: NONE
Attorney Name: MARK G CARUSILLO Hurricane Sandy relat6d? NO
Firm Namo: i.4ARK G CARUSILLO ls this a protessional
malpractice case? NO
Address:2O5O FAIRFAX AVE STE B Rslated cases pendlng: NO
CHERRY HILL NJ O8OO3 lf ygs, llst dockst numbers:
Phone: Do you anticapate adding any partiEs
(arising out
ol same
Name of PaTty: DEFENDANT : HERB, CHRISIINE, E transactionor occurrence)?NO
Name of Ogfgndant's Pdmary lnsurance Company
(if known): None

THE INFoRMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE
FOR PIJRPOSES OF OETERMINING IF CASE IS APPROPRIATE
CASE CHARACTERISTICS FOR MEDIATION

Do parties have a current, past, or recurrent relationship? NO

lf yes,isthat relationship:
Does the statute governing this case provide for payment of fees by the losing party? NO

Use this space to alert the court to any special case characteristics that may warrant individual
management or accelerated disposition:

Do you or your client need any disability accommodations? NO
lf yes, pleaseidentlfy the requested accommodation:

Will an interpreter be needed? NO
lf yes, for whatlanguage:

that confidential personal identifiers have been
I certify redacted from documents now submitted to the
court, and will be redacted from all documents submitted in the future in accordance with Ru/e 1:38-7(b)

0511612018 /s/ MARK G CARUSILLO
Dated Signed

Case Info

Judge

Paula T Dow Track Judge’s New Case

Case No.

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Document Filed Date

May 30, 2018

Case Filing Date

May 30, 2018

County

Parties

Andre Oliveriera Defendant
Annette L Smith Defendant
Anthony P Costa Attorney for the Defendant
Aparecida S Coutinho Defendant
Apc Associates Llc Defendant
Carl Muller Defendant
Carol L Radomski Defendant
Carol Muller Defendant
Chakrya K Molinoff Defendant
Charles Furlong Defendant
Christine E Herb Defendant
Christine Greatrex Defendant
Daniel Hanks Defendant
Daryl F Tonia Defendant
David Hercock Defendant
Diane Speer Defendant
Diego Castellanos Defendant
Doris G Blyler Defendant
Douglas Lynn Heinold Attorney for the Defendant
Edward Mulka Defendant
Elizabeth Falco Defendant
Erika Gore Defendant
Eugene M Flacche Defendant
Eva Hanks Defendant
George C Greatrex Jr Defendant
George Freudenberg Defendant
Giovanna Ferriera Defendant
Hoover Quintero Garcia Defendant
Hui Y Shih Defendant
James E Weist Defendant
Jeffrey B Canfield Defendant
Jeffrey D Herb Defendant
Jeffrey L Molinoff Defendant
Joanne K Welch Defendant
John M Pfrommer Defendant
John S Radomski Defendant
Jose A Coutinho Defendant
Joseph Cavalieri Defendant
Karen Woznica Defendant
Katherine O Schimmel Defendant
Keenan Builders Llc Defendant
Lee H Schimmel Defendant
Margo Furlong Defendant
Marie E Kern Defendant
Mark G Carusillo Attorney for the Defendant
Ming T Shih Defendant
Muir A Mcmath Defendant
Paulette Smith Defendant
Pennrose Llc Plaintiff
Rebecca Castellanos Defendant
Recon Investment Group Llc Defendant
Richard J Perr Attorney for the Plaintiff
Richard J Smith Defendant
Robert Gore Defendant
Robert Woznica Defendant
Ronnie M Tarchichi Defendant
Roseanne M Canfield Defendant
Russell Smith Defendant
Scott G Kern Defendant
Sigmund Tonia Defendant
Susan M Stevens Defendant
Syeda F Ahmed Defendant
Syed M Ahmed Defendant
Theodore J Speer Jr Defendant
Thomas B Mitchell Defendant
Umur Selek Defendant
Vito Brasile Defendant
Warren G Blyler Defendant
Wongsduan Mulka Defendant
Joseph Fiorenzo Attorneys for Plaintiffs
Victor Herlinsky Attorney
Mark Guralnick Attorney
Meryl Gonchar Attorneys for Defendants
ANTHONY COCCA Attorney

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Answer: Pennrose Llc Vs Apc Associates Llc

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Case Info

Parties