Thursday, July 28, 2016

Landowner Gower's attorney attempts CYA move on day following Nestlé withdrawal with premature motion for summary judgment - and stipulation ending the appeal

"When you are confronted with a problem involving people - a problem that you don't understand, stop and ask yourself 'What is the nature of man?" V. Barlieb

On June 8, 2016, Nestle Waters North America/Deer Park withdrew its badly flawed application for a special exception permit to withdraw water from a property in Eldred Township.  The very next day (June 9) landowner Gower's attorney, who works for the same law firm as CJERP Solicior Fareri, filed a 115-page Motion for Summary Judgment in the Monroe Court of Common Pleas.

 A motion for summary judgment is appropriate when there is no dispute over facts.  It isn't filed before evidence is put into the record.  In this case, the dispute was still in the discovery phase.  Depositions had not yet taken place.  There wasn't a single piece of evidence in the record.  There is no way to know if facts are in dispute or not.  The motion merely contained a refined version of all the crap Newman Williams had filed to date - with unfounded claims that everything was done properly.  Why would this be filed, since Nestle was gone goodbye?  Why cling to claiming everything was done right when it obviously was not, and more importantly after Rick Gower had no more hope of Nestle lining his pockets and allegedly no longer interested in pimping Kunkletown's water supply?

Who paid for this premature, pathetic steamy pool of crap?  Granted, most of the 115 pages is exhibits.  But someone put it together so that it told the desired fable.  There in no way landowner Gower paid for this - he wanted out.  Why not wait for a stipulation?  This blogger's guess is that this is Newman Williams' last gasp to attempt to cover its ass, since its attorney represented Eldred Township as a CJER member in 2014, as well as today.  It was a clear conflict of interest for Newman Williams to agree to represent the landowner - one that would have become an issue if the case had proceeded.

Here is the premature motion, with annotations in bold debunking the claims made:

An interested party was pissed off by this absurd motion, and sent the attorneys of record and Judge Zulick a letter outlining why he thought it was absurd.

Update: Stipulation has been filed, ending the lawsuit with no possibility of another

This blogger's understanding is that Attorney Preston for the Citizens laughed out loud when he saw the utterly ridiculous Motion for Summary Judgment above.  It's hard to imagine what Judge Zulick thought when his assistant dropped this pile of garbage on his desk on June 9 - attorneys are advised to keep motions for summary judgment brief and succinct.  Newman Williams attempted to hold a trial in its motion - the exact opposite.  On July 18, 2016, a stipulation was filed, signed by all parties, settling the lawsuit without prejudice.  Newman Williams' Hail Mary didn't work, and is nothing more than a footnote in this sordid tale.  See the bottom of this post for an explanation as to why Mr. Preston insisted on a settlement "without prejudice".

The question is, will the bullies in control of CJERP now announce that CJER, its Solicitor, the Monroe County Planning Commission, and Planning Consultant Carson Helfrich all made serious procedural errors in the passage of the 2014 Eldred water extraction amendment?  This not a "local issue," as Jack Rader told an Eldred resident in February.  These organizations and representatives at the regional and county level failed Eldred Township.  Getting rid of so-called professionals is easy - kick their useless asses out the door, but CJERP and the Monroe County Planning Commission owe Eldred Township an explanation and an apology.  And Mr. Rader needs to wake the hell up - if you aren't blind, there is no call to act like you are.

Will CJERP continue to hide and let its Solicitor speak for it, with his patently obvious conflict of interest, and self-interest in not admitting errors that he made?

"Without prejudice" protects plaintiffs (Citizens)

The purpose and effect of the words without prejudice in a judgment, order, or decree dismissing a suit are to prohibit the defendant from using the doctrine of res judicata in any later action by the same plaintiff on the subject matter. The doctrine of res judicata (from the Latin, "a thing decided") is based on the importance of finality in the law. If a court decides a case, the subject of that case is firmly and finally decided between the persons involved in the suit, so no new lawsuit on the same subject may be brought by the persons involved. Therefore, the words without prejudice protect the plaintiff from a defendant's res judicata defense.