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HomeMy WebLinkAbout96-01166 ~ ) "I I I I I \ ! i \ \ , I ! i ! I i , I i I J t / \ , ..) ",... ...3 i"- . -- I . -'\ ~'!' .. ~'( ~ I .... ,II ~ - \... - \ .J - -" i L:, .. . ~ I _ .0,., ":j "'''Uti{] ilOWS Hj~lt') c \" .9\H 2E5 St.S d t.. l-) " C'\--< ....... N~ .~ ,-.,...., ~'J<- c \:!) __._ - ______0. ~ - c1l " " ~ "".WIIOd t: d1'tl101 8 ,.11IO -i -,,,,,,,,,,,,- _'""lIlI~ "i~"'IfI(]~ 1 - f, '- "j~- -:..l ...~ ..<;:::. s ...... c \; u- \~ ItJS-itMtlJ IIIIS [!eVi IUU~IBWalU1IOI esn IOU oa P8PIt\Old <+6eJQ^~ QOUVJOIUI ON I!ew pamlJa:) JOj ldI8:)el:! Q"AutS I'llSOd sn Lilt 2E5 St.5 d ._.1' Vol ccr:.t , 'Ill ;-; 't- o .' - ~ , t " ,; l )l..'V ~, C ; ~ . ;; " ~_.-_.-~-- . . ... 'tO~ " " . , . ~ ~ ~ '" ~ " " (I, " . " " 1-' :::,')..r'\:nCf < q " .) \ ..." .....' .~., ~.',' ., -.J! " ,', f " C' ., " '~ ~ i> . ., ., " . ~1 " -: 1\: ,,\ X " .. ., ?, , :~ ,', ,~ ". . . 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CARLISLE, PA 17013 L ~ VS. -""'... 09-3-04 t}ltMm. HU,l GLENN R. FARNER ~~- 5001 LENKER STREET MECHANICSBURG, PA '_,.MO" 1717, 76l-8230 1 7V55 -0000 OHENOANT ....MI _., AI~''''' rHERSHEY, JON C, ET AL. 40A OLD STONEHOUSE RD. CARLISLE, PA 17013 l. [Docket No.: ~:: ~ded: I ~ RACHEL R. HERSHEY 40A OLD STONEHOUSE RD. CARLISLE, PA 17013 CV-0000013-961 1/11/96 I I THIS IS TO NOTIFY YOU THAT: Judgment: [!J Judgmflnt was enlBred for: (Name) [!J Judgment was emered against: (Name) FOR PLAINTIFF , . INFANTINO, THOMAS &CHARLOTTE HERSHEY, RACHEL R In the amount 01 S 1,660.00 on: (Dale) 2/06/96 o Damages will be assessed on, (Dale & Time) o This case dismissed w~hou' p,ejudlce. o Possession granted. O Possession granted if money judgmenl is nOI satisfled wrthin thirty days. o Possession not granted. o Lei'" Is stayed lor _ days or 0 generally stayed. o Objection to ievy has been filed and heanng will be held: Dale: , Place: I Amount 01 Judgment Judgment CoslS Interes' on Judgment Attorney Fees $1,575,00 $85.00 $.00 $.00 TOTAL $1,660.00 Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS OF THE DATE OF JUDG .".' ~'~QTICE OF APPEAL WITH THE PROTHONOTARY'I CLERK OF THE COURT OF COMMON: . CIVIL DIVlslON\;.. 4 L.:..iL- Date .' D!st,lct JUs\!.li,\ I cerllty Ihalthis is a true and correct copy 01 the record of the proceedings . taining tha1uiJgm~nt. ,~ '; I I' I Date '. . . ~:. . District JUS~ . , / '--.~./ My commission expires lirst Monnay 01 January. 1'J'.l8. SEAL AOPf: )1 '$-9/1 resided at and own the real estate addressed 40 Old Stonehouse Road, Carlisle, Cumberland County, Pennsylvania. 5. In late 1992, the Defendants purchased the property adjoining that of the Plaintiffs, having an address of 40A Old Stonehouse Road, from Thomas E. Page and Belinda Page. 6. Although the Hershey property at 40A Old Stonehouse Road doss have direct frontage on to Old Stonehouse Road, its access to Old Stonehouse Road for vehicular traffic utilizes the last 150 feet of the driveway of the Plaintiff Infantino's property located at 40 Old Stonehouse Road. 7. Prior to purchasing the property of the Pages' in late 1992 located at 40A Old Stonehouse Road, the Defendants, Jon C. Hershey and Rachel R. Hershey, specifically required that the Pages obtain a written easement executed by the Plaintiff Infantinos and the Pages which would allow the Hersheys, after purchase of the property from the Pages, to utilize the 150 foot portion of the Infantino driveway to access Old Stonehouse Road. Attached hereto and marked exhibit A is correspondence from Steven L. Grose, Esquire, attorney for Mr. and Mrs. page to John M. Eakin, Esquire, attorney for the Plaintiffs, dated September 23, 1992 to that effect. 8. As a result of the requirement of the Defendant, Hersheys, that a written easement be obtained, Plaintiffs entered into a written Grant Of Easement with Thomas Page and Belinda Page on November 20, 1992, duly recorded at the Cumberland County Recorder of Deeds in Book 434 Page 258-260, copy of which is attached hereto and marked exhibit B. 9. The Grant Of Easement specifically provides that "any improvement to the right of way shall be a joint obligation of the parties." 10. The Grant Of Easement specifically provides that it "shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, administrators, successors and assigns. . The Grant Of Easement therefore is binding upon and shall inure to the benefit of both the Plaintiffs, and the Defendants. 11. In October 1995 the Plaintiffs, elected to pave their driveway, including the 150 foot portion subject to the easement in favor of the Defendants. Prior to that date, none of the driveway, including the 150 foot portion subject to the easement, had been paved. The paving of the 150 foot portion of the driveway subject to the easement would inure to the benefit of both the Plaintiffs and the Defendants. 12. Counsel for the Plaintiffs, John M. Eakin, Esquire, so informed counsel for the Defendant, David A. Baric, Esquire, by letters October 25, 1995, and November 1, 1995; Baric responded to Eakin by a letter dated November 3, 1995, denying any obligation on on the part of the Hersheys to contribute to the improvement of the "right of way." Copies of said correspondence and attached hereto and marked exhibits C, D, and E respectively. 13. The Infantino driveway, including the 150 foot portion subject to the easement, was paved in November 1993, and paid for in its entirety by the Plaintiffs. 14. The portion of the dliveway subject to the easement of the Hersheys was paved at a cost of $3,150 (copy of the invoice attached hereto and marked exhibit F); the Hersheys share of the cost of this improvement is $1,575, which the Hersheys hav~ refused to pay and is accordingly due and owing to the Plaintiff, InfantinoB. WHEREFORB, the Plaintiffs, Thomas and Charlotte Infantino, based upon the foregoing, demand judgment against the Defendants, Jon C. Hershey and Rachel R. Hershey, in the amount of $1,575 plus costs and interest, which is an amount not in excess of the compulsory arbitration limits as provided by law. Respectfully submitted, Dated: hQl'<~ I') II )"1 b !;SJy)</~~, David J. F~ster, Esquire COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: (717) 761-2121 ATTORNEY FOR THE PLAINTIFFS Wll.!..l".... I't, WOOO MCA ht I.. .....l.CN N, O"~IQ "AHAL, WIL.;..IAM C- ...H.L.'''. .;" S..-Io4YCI.. e. I1A"I'" CHA"LI' 'N_ Au8(NOAI.Io. II AOeCiJ r \", WCl.,.OOH IUOINI C _CPINS" 1'. JII, 1110104"'. C. '11I000 ""OI1N .... c~os lit ClAf"" C. 'R1CNCII COHMA 5, ~lll.DQH ."AO'OAO QO"H"'N~C JI"JlI"l' ,. 110KI. .0.'"'' A. CHt"IJltCIt It,,.,,et. I.. GAOlS' "'1""1' t, 5"'ITI1 OOHoI\&..O .... l.awlS III ."IDGel' H. WtI""'C"" 0"& TeWe,. C. 011.1. KEEFER, WOOD, ALLEN & RAHAL ZIO WAI.NUT srREET MAII.ING AOORESS. P 0 BO)( 1196:3 HARRISBURG. PA. 1710e0l96:3 tllJLI.. t.E;'IP .HIO M(Tl'~[A 11~""I'i.~1 ;1 Me r l4lR, HA'ER, "U'I". TI.OMA' ANO wQOO 1180.1."1 ,. , , IR:! NQ l30,1iI1,3'S 'AA, l/111 ,us eo so . . ; , . september 23, 1992 rr.l..I$Jt1Cl~'C 11111 ,,',8000 "'111'(11' Ol,,(,r 0."1. 255-8052 John M. Eakin, Esquire Eakin , Eakin Attorneys-at-Law Market Square Building Mechanicsburg, PA 17055 ; ~ , Re: Ineatino/Paae Dear John: We have been advised by the prospective purchasers oe the pages' residence that they will require an executed agreement. Would you be so kind as to draft a eormal, but simple, contract that embodies the understanding to which the Pages and Ineatinos have agreed. Your prompt attention to this matter would be greatly appreciated, since this document ~s needed to close on the Pages' property. sincerely, KEEfER, WOOD, ALLEN & RAHAL ey /1t' LA_ Stephen L. Grose SLG/sjn ec: Mr. and Mrs. Thomas Page EXHIBIT I A , CERTIFICATE OF RESIDENCE I hereby certity th4t the precise residence ot the Gra;;:~/1hn;~~/~r tl,~:WS'.aA-/ 7'" /T t7f.t'( j~~Cv.-'C" ~t'1<<a o4f!tf ~ /7C1/3 _ H-'/h~LL.A~~_ A~y 01;" Age~ro? Gunt.. COMMONWEALTII OF PENNS.{LVANIA I , SS COUNn OF CUMBERLAND I RECORDED on this ,;tJ .(J.t. &-' day at , 199~, in the Rscorder'. OtUce at the said County in Miscellaneous Book 't.!:. t, Page, ~S' S- Given under my hand and seai ot the.aid ottice, the date above written, --i'l,{.C,uT ~,J.~ ' RecQl;"der to "" o ,..,., C-:J '" c.> ", ""', " ;~ , ~~ , co I ~~ !: ':'1 i,I;:: : J o!'~ ~'! o Il' C C7..-. =:mr -II" 111 ..< C'.J ;''J o 'Ill -.1 ." ... -u ::3 " .N ~DO~ ,134 i'ACE 2(iO . ., ", ~. '" . .. . :-: J-... " 'f :,.. . , ~ ... :I .' q,:' ..,-., . ..... .. :.~ .' r : ~.' " .'\ ':.., . ....... .' ", l. ~ . '1'1 . ,. . 1'; ,. 1",Ut.. """'," /', '..' ,', .....,.. " , fl'l ft.' II": . , ,",:,', -',:' '," competitive bids for the pavement work that was done. 19. Denied. The paving work was done in a satisfactory and workmanlike manner, with an obligation on the part of contractor to correct any typically anticipated defects in the work that may arise over the winter of 1995-1996. 20. After reasonable investigation, Plaintiffs are without information sufficient to form a belief as to the estimate of the Hersheys as to the length of their driveway, and consequently, proof thereof is demanded. It is admitted that that portion of the driveway not covered by the easement is unpaved; it is denied that the portion covered by the easement is poorly paved, on the contrary it was paved in satisfactory and workmanlike manner. 21. It is denied that the pavement work undertaken by the Plaintiff has diminished the value of the Hersheys' property; to the contrary, because a portion of their driveway, not on their property, has been improved, it has in fact enhanced the value of their property. 22. Denied as a conclusion of law. 23. Denied that tl1e Hersheys were justified in refusing payment; on the contrary, under the Grant of Easement, they were obliged to contribute jointly to the cost of the improvement; it is further denied that the improvement was solely for the benefit of the Plaintiffs, as it in fact inured equally to the benefit of the Defendants as well. . ANSWER TO COUNTERCLAIM 24. No answer required. 25, Denied; no ouch requirement is indicated in the Grant of Easement. 26. Denied that the Plaintiffs, Thomas and Charlotte Infantino were aware of any obligation to obtain the consent and approval of the Hersheys to any improvement to the easement because there is, in fact, no such obligation. 27. Admitted that the Plaintiffs, Thomas and Charlotte Infantino, did not obtain consent and approval of the Hersheys to the proposed improvement; denied that the Infantino' s did not obtain any other estimates, bids or other writings necessary to determine the cost and scope of the improvement inasmuch as two estimates were obtained prior to paving. 28. Denied; the paving worked performed by the contractor was done in a satisfactory and workmanlike fashion and will result in no inappropriate meintenance expenses. 29. Admitted; however, Plaintiffs had no control and/or obligation with respect to that portion of thB Hersheys driveway that they chose to remain unpaved. 30. Denied that the paving of the area of the driveway subject to the Grant of Easement resulted in a diminution of the value of the Hersheys property; to the contrary, such paving in 7. Denied as stated. The allorney for the Paiges requested a wrillen easement agreement which was, upon information and belief, draft~d by the attorney for the Plaintiffs, reviewed and executed by the Plaintiffs and the Paiges. 8. Admilled inn part and denied in part. Admilled that Plaintiffs entered into a Grant of Easement drafted by Plaintiffs' attorney with the Paiges on November 20, 1992, recorded at Miscellaneous Book 434, pp. 258-260 a coy of whir:h is appended as Exhibit B to the complaint. The remainder of this averment is denied. 9. Admilled in part and denied in part. To the eluent this averment seeks to restate the Grant of Easement, Defendants respond that the document speaks for itself. 10. Admitted. 11. Admitted in part and denied in part. It is admitted that, prior to November, 1995, the driveway of Plaintiffs and the length of the easement had been used by the parties without having been paved. The Plaintiffs unilaterally determined that they would pave their entire driveway and the length of the easement. It is specifically denied that the paving undertaken by Plaintiffs would inure to the benefit of the Hersheys. By way of further answer, the paving undertaken by the Plaintiffs was poorly done and will require maintenance for years to come, the obligation sought to be imposed by Plaintiffs on the Hersheys has diminished the value of the Hersheys' property. 12. Admilled in part and denied in part. Admilled that the correspondences referenced as Exhibits C, D, and E were transmitted between counsel for the parties. By way of further answer, the correspondence refere~ced as Exhibit C indicated that "Mr. Infantino is considering paving the driveway. ..... The exhibit referenced as Exhibit D dated November I, 1995, was received by counsel for the Hersheys on Friday, November 3, 1995 indicating that paving was to commence the following Monday, November 6, 1995 Moreover. Plaintiffs commenced the paving work before receilling the response from the Hersheys' counsel. 13. Admitted in part and denied in part. Admilled that the length of the easement was paved. The Hersheys, after reasonable investigation, are without information sufficient to form a belief as to the truth or falsity of the remainder of this averment and it is , therefore, denied. 14. Denied. By way offiJrther answer, the Hersheys are not obligated to pay a debt created by the Plaintiff's without the prior agreement of the Hersheys, the paving cost attributed to the easement area is excessive and the work was poorly performed. WHEREFORE, Defendants, Jon and Rachel Hershey, demand judgment in their favor and against the Plaintiff's with costs of this action. NEW MATTER 1 S. The Grant of Easement was drafted by the allomey for Plaintiff's. 16. The Grant of Easement was not executed by the Hersheys. 17. The Plaintiff's provided no specifications, bids or proposed contracts to the Hersheys for the palling work prior to initiating the work. 18. The Plaintiffs failed to seek competitive bids for the paving work. 19. The palling work was done in a poor and unworkmanlike manner. 20. The Hersheys driveway from their residence to Old Stonehouse Road covers a distance ofapproximately 1000 Feet. Consequently, 850 Feet of the Hersheys' drive is unpaved and the 1 SO feet of the easement is poorly paved. 21. The palling work undertaken by Plaintiffs has diminished the value of the Hersheys property. 22. Having undertaken the paving contract unilaterally, the Plaintiffs are estopped from asserting an obligation on the part of the Hersheys to pay for the paving. 23. The Hersheys were justified in refusing to pay for an obligation created solely by and for the benefit of the Plaintiffs. COUNTERCLAIi\( 24. The averments set forth in paragraphs one (I) through twenty-three (23) are incorporated herein as though set forth at length. 2S. The Grant of Easement required that the owners of 40 and 40A Old Stonehouse Road agree to any proposed improvement to the easement area. 26. The Counter-Defendants, Thomas and Charlotte Infantino, were aware of the obligation to obtain the consent and approval of the Hersheys to any improvement to the easement. 27. The Counter-Defendants failed to obtain the consent and approval of the Hersheys to the proposed improvement, failed to provide any estimates, bids, specifications or other writings necessary to determine the cost and scope of the proposed improvement prior to proceeding with the paving. 28. The paving work performed by the contractor re!ained by the Counter-Defendants was poorly done and will result in significant maintenance expenses prospectively. 29. The Counter-Defendants were aware that the paving undertaken by them would result in a portion of the Hersheys' driveway being paved and a portion remaining unpaved. >- -" '.- C!~ ~ I'",: ~::- c"-; ~ ;'i ,-. tt "'", : 'i~ H::; r.:..:..._ 9l_ (':,) :11 .' 6:1. CJ "I] -". >-- C. , '.L I L " "':1 -:.;;; C. d. U ~ I in! -Id ell , "..