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HomeMy WebLinkAbout01-0771 I '" . ~, JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0I-~71 CIVIL TERM vs. BARRY L. SHEALER and MARLENE A. SHEALER, CIVIL ACTION - LAW Defendants IMPORTANT NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with a court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE I. I " LAW OFFICES SNELBAKER. BRENNEMAN Be SPARE JAMES M. KELLER and ELAINE N. KELLER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, vs. NO. v/.77/ CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, CIVIL ACTION - LA W Defendants COMPLAINT AND NOW, come the Plaintiffs, James M. Keller and Elaine N. Keller, by their attorneys, Snelbaker, Brenneman & Spare, P.C., and aver the following alternative causes of action: 1. Plaintiffs are James M. Keller and Elaine N. Keller, husband and wife, adult individuals, who reside at 722 Dogwood Terrace, Boiling Springs, Cumberland County, Pennsylvania 17007. 2. Defendants are Barry L. Shealer and Marlene A. Shealer, husband and wife, adult individuals who reside at 4247 Carlisle Road, Gardners (Dickinson Township), Cumberland County, Pennsylvania 17324. 3. Plaintiffs are the owners in fee simple of all that certain tract of land situated in Dickinson Township, Cumberland County, Pennsylvania (hereinafter called "Plaintiffs' Land") more particularly described in "Exhibit A" attached hereto, Plaintiffs' title thereto being based on Chain of Title attached hereto marked "Exhibit B", both of said Exhibits being incorporated herein by reference thereto. 4. Defendants are the owners of all that certain tract of land situated in Dickinson Township, Cumberland County, Pennsylvania (hereinafter called "Defendants' Land") more particularly described in "Exhibit C" attached, Defendants' title thereto being based on Chain of J Title attached hereto marked "Exhibit D", both of said Exhibits being incorporated herein by reference thereto. 5. Plaintiffs' Land and Defendants' Land were part of a larger tract of land owned by George W. Paxton (15 acres and 104 perches) (hereinafter called "Paxton Land") as acquired by the latter on September 20, 1913 by deed recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book 14-H, Page 268, being reported as Step #1 in Chains of Title as set forth in "Exhibits B" and "Exhibit D" attached hereto. 6. George W. Paxton sold and conveyed two tracts of land as parts of said Paxton Land as more fully described in the following deeds: A. Deed dated August 17, 1917, to E. S. Starner (Deed Book 10-T, Page 446). B. Deed dated January 28, 1923, to Andrew Shuff (Deed Book 9-L, Page 380). Both of said tracts front on a public road sometimes called "the Carlisle to Gettysburg public road", now known as Pennsylvania Route #34. 7. On or about September 24, 1924, the said George W. Paxton sold the last remaining portion of the Paxton Land fronting on the public road aforesaid (Pa. Route #34) to George C. and Lottie Meckley (Deed Book 9-X, Page 349), retaining the land now Plaintiffs' Land as his remaining land of the Paxton Land and providing in said deed to the Meckleys the following specific reservation: LAW OFFICES SNELBAKER. BRENNEMAN & SPARE "In consideration of the above tract of land the Grantor reserves a roadway from the Carlisle and Gettysburg Public road to a point on the eastern end of said tract for his use or his assigns for a time unlimited, or as long as grass grows or water runs." 2 3 . ., LAW OFFICES SNELBAKER. BRENNEMAN & SPARE Said lands conveyed to the Meckleys being a portion of Defendants' Land as recited in "Exhibit D" attached hereto. 8. As a result ofthe conveyances aforesaid and as successors in ownership to the residual "Paxton Land", Plaintiffs are entitled to an easc;:ment and right-of-way for ingress, egress and regress on, over, across and through Defendants' L,md between Plaintiffs' Land and Pa. Route #34 (a) by operation oflaw by necessity resulting from George W. Paxton's prior sales of all Paxton Land fronting or adjoining said Pa. Route #34; and (b) by the express reservation as quoted in paragraph 7 above. 9. Plaintiffs contend and aver that they are entitled to a roadway fifty (50) feet in width extending across Defendants' Land from Pa. Route #34 on the west to Plaintiffs' Land on the East and suggest the same be located along and parallel with the southern boundary of Defendants' Land. 10. Plaintiffs have no access to any public road except by the easement and right-of- way averred in paragraph 8 above. 11. Defendants have refused to recognize Pla.intiffs' rights as aforesaid and have denied Plaintiffs their rights of passage, threatening Plaintiffs with legal action should Plaintiffs attempt to exercise their rights. 12. Defendants' refusal to honor Plaintiffs' rights has the effect of denying Plaintiffs the rights to develop, enjoy or otherwise use Plaintiffs' Land. 3 it LAW OFFICES SNELBAKER. BRENNEMAN Be SPARE COUNT I [Action to Ouiet Title Pursuant to ])a. R.c.P. 1061 (b)(2)1 13. The averments contained in paragraphs 1 through 12 hereinabove are incorporated herein by reference thereto as though set forth in full. WHEREFORE, Plaintiffs request your Honorable Court to: A. Affirm and confirm Plaintiffs' easement and right-of -way aforesaid; B. Affirm and confirm Plaintiffs' right to use, develop, improve and otherwise use and enjoy said easement and right-of-way as an appurtenance of Plaintiffs' Land; C. Enjoin Defendants from interfering with Plaintiffs' easement and right-of- way; and D. Grant such other relief as is just and proper. COUNT II fin EQuitvl This Count II is submitted in the alternative if for any reason jurisdiction is denied or prevented to maintain the action to quiet title in Count 1. 14. The averments contained in paragraphs 1 through 12 hereinabove are incorporated herein by reference thereto as though set forth in full. 15. Plaintiffs have no adequate remedy at law. WHEREFORE, Plaintiffs request your Honorable Court to: A. Affirm and confirm Plaintiffs' eas.ement and right-of-way aforesaid; 4 6 . .. B. Affirm and confirm Plaintiffs' right to use, develop, improve and otherwise use and enjoy said easement and right-of-way as an appurtenance of Plaintiffs' Land; C. Enjoin Defendants from interfering with Plaintiffs' easement and right-of- way; and D. Grant such other relief as is just and proper. SNELBAKER, BRENNEMAN & SPARE, P.C. By lchard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Plaintiffs LAW OFFICES SNELBAKER. BRENNEMAN & SPARE 5 (p LAW OFFICES SNELBAKER. BRENNEMAN & SPARE VERIFICATION We, the undersigned, being the Plaintiffs in the foregoing Complaint, do hereby verify that the facts set forth in said Complaint within our personal knowledge are true and correct, and as to those facts not within our personal knowledge, we believe them to be true and correct based upon information received from others. We understand that any false statements made in said Complaint are subject to the penalties of 18 Pa. c.s. S 4904 relating to unsworn falsification to authorities. --.. ~ /c:i~ James M. Keller s-~ ~ Ai 7dfY? (p~j , . /2(!fd'j Ela.ine N. Keller Dated: February f( , 2001 6 7 . .. LAW OFFICES SNELBAKER. BRENNEMAN Be SPARE . . EXHIBIT A LEGAL DESCRIPTION OF PLAINTIFFS' LAND ALL THAT CERTAIN tract ofland situate in Dickinson Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a stake and stone; thence by land formerly of the heirs ofW. Yeingst, North 32 degrees East 20 perches to a point; thence by the same North 24 degrees East 20 perches to a point; thence by land now or formerly of E. H. Murray, West 91.3 perches to a point; thence by land now or formerly of George C. Meckley, South 2 degrees East 18.6 perches to a point; thence by land now or formerly of E. S. Starner, South 85 degrees East 34.4 perches to a stone; thence by the same, South 1014 degrees West 6.7 perches to a stone; thence by the same, South 88 degrees East 42.7 perches to the Place ofBEGIKNING. CONTAINING 11.1563 Acres, more or less. 7 g , . EXHIBIT B CHAIN OF TITLE FOR PLAINTIFFS' LAND Step #1 Deed: Deed Book 14-H, Page 268 Dated: September 20, 1913 Grantors: F. B. Sellers, Jr., and G. Wilson Swartz, Masters Grantee: George W. Paxton [15 acres and 104 perches]. Step #2 Death and Will of George W. Paxton Date of Death: November 27,1926 Will: Will Book 34, Page 29. Step #3 Deed: Deed Book 26-H, Page 413 Dated: March 21,1921 Grantors: Estate of George W. Paxton by Maurice T. and J. Almeda Paxton, Executors Grantees: Nora M. Paxton and Maurice T. Paxton, wife and husband [11 acres and 25 perches]. Step #4 Death of Nora M. Paxton Date of Death: July 11, 1964. Stell #5 Death and Will of Maurice T. Paxton Date of Death: April 15, 1975 Will: Will Book 12, Page 805. LAW OFFICES SNELBAKER. BRENNEMAN Be SPARE Step #6 Deed: Deed Book 26- K, Page 421 Dated: January 15, 1976 Grantors: Estate of Maurice T. Paxton by Lucile P. Nell, Executrix Grantees: John R. Nell and Lucile P. NEJl, his wife [11 acres and 25 perches]. Step #7 Death of Lucile P. Nell Date of Death: April 21, 1988. 8 1 . I I ... LAW OFFICES SNELBAKER. BRENNEMAN Be SPARE Step #8 Death and Will/Codicil of John R. Nell- Estate # 21-93-785 Date of Death: September 14, 1993 Will/Codicil: Will Book 127, Page 807. Step #9 Deed: Deed Book 127, Page 18 Dated: July 31, 1995 Grantors: Estate of John R. Nell, Deceased, by Elaine N Keller, Executrix Elaine N. Keller, individually as beneficiary Dennis P. Nell, individually as beneficiary Grantees: Elaine N. Keller and James M. Keller, wife and husband [11.1563 acres, more or less]. Step #10 Deed: Deed Book 127, Page 1160 Dated: September 7, 1995 Grantors: Estate of John R. Nell, Deceased, by Elaine N Keller, Executrix Elaine N. Keller, individually as beneficiary Dennis P. Nell, individually as beneficiary Grantees: Elaine N. Keller and James M. Keller, wife and husband [11.1563 acres, more or less] [Corrective/confirmatory deed for conveyance in Step #9]. 9 /0 . .. LAW OFFICES SNELBAKER. BRENNEMAN Be SPARE EXHIBIT C LEGAL DESCRIPTION OF DEFENDANTS' LAND ALL THAT CERTAIN tract of land situate in Dickinson Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a point on the eastern side of the Carlisle-Gettysburg Road, being Pennsylvania State Highway Route #34, at corner of lands now or formerly of Guy Whitmore; thence in an eastwardly direction along lands of the said Whitmore, a distance of 325 feet to a point in line of lands now or formerly of Morris Paxton; thence in a southwardly direction along lands of the said Morris Paxton, a distance of 238 feet, more or less, to a point in line of lands now or formerly of Edward Starner, a distance of 325 feet to a point in the eastern side of said public road; thence in a northwardly direction along the eastlC)rn side of said road, a distance of 238 feet to a point, the place of BEGINNING. 10 Il . ., EXHIBIT D CHAIN OF TITLE FOR DEFENDANTS' LAND Step #1 Deed: Deed Book 14-H, Page 268 Dated: September 20, 1913 Grantors: F. B. Sellers, Jr., and G. Wilson Swartz, Masters Grantee: George W. Paxton [15 acres and 104 perches]. Step #2 Deed: Deed Book 9-X, Page 349 Dated: September 22, 1924 Grantor: George W. Paxton Grantees: George C. Meckley and wife, Lottie [1 acre and 4,215 square feet]. Step #3 Death of George C. Meckley Date of Death: March 10, 1950. Step #4 Deed: Deed Book 14-H, Page 270 Dated: April 19, 1950 Grantor: Lottie R. Meckley, widow Grantees: Charles H. Swartz and Gertrude C. Swartz, his wife. Step #5 Death of Charles H. Swartz Date of Death: July 30, 1979. Step #6 Deed: Deed Book 29-V, Page 526 Dated: July 15, 1982 Grantor: Gertrude C. Swartz Grantee: Larry A. Bankert. LAW OFFICES SNELBAKER, BRENNEMAN 8c SPARE Step #7 Deed: Deed Book 29- V, Page 528 Dated: July 15, 1982 Grantor: Gertrude C. Swartz Grantee: Larry R. Swartz. 11 J~ . .. .. LAW OFFICES SNELBAKER, BRENNEMAN & SPARE , . Step #8 Deed: Deed Book 31-U, Page 78 Dated: March 26, 1986 Grantors: Gertrude C. Swartz, widow, Larry A. Bankert and Larry R. Swartz Grantee: Gertrude C. Swartz. Step #9 Deed: Deed Book 33-X Dated: April 21, 1989 Grantor: Gertrude C. Swartz Grantees: Steven Linn Palmer and Laura Ann Palmer. Step #10 Deed: Deed Book 176, Page 926 Dated: April 28, 1998 Grantors: Steven Linn Palmer and Laura Ann Palmer Grantees: Associates Consumer Discount Company. Step #11 Deed: Book 216, Page 428 Dated: January 31, 2000 Grantor: Associates Consumer Discount Company Grantees: Barry 1. Shealer and Marlene A. Shealer, husband and wife. 12 )3 i i ~ C/j~ ~ 8~ ()t1 ~ ~ ~ ~ ~ z ~ ~ CI.l -l-l j:l co '"Cl !:: <1l 4-1 <1l A '"Cl t:: CO P:: ~ ~ ::c: .. tnP:: ~ ~~ ij~ r::Q-<tl ~ ~:") !:1 ~ ~ () ....... ~~ Eo-< ~ H .-<tl ~ .~ o u U.l Ii <( 0... (/') ~ 5 z .~ .~ ~. ~. ~ U.l 0< Z u .. z... ~. U.l . ~ IJ,.I. ~. Q .~ t:!l~Q. cl 0 .~.... LLI'" .M' . ~ I>. "" <( < I!l ....J U.l Z (/') ~ SHERIFF'S RETURN - REGULAR CASE NO: 2001-00771 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KELLER JAMES M ET AL VS SHEALER BARRY L ET AL CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SHEALER BARRY L the DEFENDANT , at 0015:06 HOURS, on the 26th day of February, 2001 at 4247 CARLISLE ROAD GARDNERS, PA 17324 by handing to MARLENE A. SHEALER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 6.82 .00 10.00 .00 34.82 s~~~" R. Thomas Kline me this .< no.d.. day of 02/28/2001 SNELBAKER, BRE~MAN BY:~ ~Deputy & SPARE Sworn and Subscribed to before I1AAUIJ..~ :JJrt) / A. D. Ck-L f2 7h~flL( ,~ othonotary IS- SHERIFF'S RETURN - REGULAR CASE NO: 2001-00771 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KELLER JAMES M ET AL VS SHEALER BARRY L ET AL CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SHEALER MARLENE A the DEFENDANT , at 0015:06 HOURS, on the 26th day of February, 2001 at 4247 CARLISLE ROAD GARDNERS, PA 17324 by handing to MARLENE A. SHEALER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 So Answers: ~~~~~ R. Thomas Kline me thi s O(~ day of 02/28/2001 SNELBAKER, BRENNEMAN I BY:~~~ ~Dep Sworn and Subscribed to before ~ cJ.&1}/ A.D. ~a~~ - Prothonotary I ~ I<t> JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v : NO. 01 - 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : CIVIL ACTION - LAW NOTICE TO PLEAD To: James M. Keller and Elaine M. Keller c/o Richard C. Snelbaker, Esquire Snelbaker, Brenneman & Spare 44 West Main Street Mechanicsburg, P A 17055 Attorney for Plaintiffs You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Date: March 29.2001 t/)1/jQ A . Hubert X. Gilroy, Esquire Attorney for Defendants Supreme Court ID No. 9943 Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 (717) 243-4574 11 JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v : NO. 01 - 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : CIVIL ACTION - LAW ANSWER TO COMPLAINT AND NEW MATTER Defendants, Barry L. Shealer and Marlene A. Shealer, by their attorneys, Broujos & Gilroy, P.C., set forth the following in response to the complaint filed in the above matter: 1 Admitted. 2 Admitted. 3 Admitted. 4 Admitted. 5 Admitted. 6 Admitted. I~ 7 Admitted. 8 Denied. Plaintiffs are not entitled to an easement and right-of.way over Defendants' land. The allegations set forth in the New Matter below are incorporated herein by reference thereto. 9 Denied. Plaintiffs are not entitled to an easement and right-of-way over Defendants' land. The allegations set forth in the New Matter below are incorporated herein by reference thereto. By way of further answer, there is no basis in law or in fact for Plaintiffs to demand a fifty-foot width in an easement over Defendants' land. 10 Admitted that Plaintiffs' land does not abut any public road. Denied that Plaintiffs' do not have access to any public road except by the easement and right-of-way claimed by Plaintiffs' in Paragraph 8 of Plaintiffs' complaint. On the contrary, Defendants have been advised that Plaintiffs have conveniently used other properties to access Plaintiffs' land, and Defendants aver that Plaintiffs have various understandings or agreements with other property owners in the area whereby Plaintiffs have been able to obtain access to Plaintiffs' land. II Admitted that Defendants have refused to recognize Plaintiff.~' claims. Denied that Plaintiffs have any rights of passage over Defendants' land. /1 12 Denied. The allegations set forth in Paragraph 10 above are incorporated herein by reference thereto. COUNT I 13 No responsive pleading is required. WHEREFORE, Defendants request your Honorable Court to dismiss Count I of Plaintiffs' complaint. COUNT II 14 No responsive pleading is required. 15 Denied. The allegations set forth Paragraph 10 above are incorporated herein by reference thereto. WHEREFORE, Defendants request your Honorable Court to dismiss Count II of Plaintiffs' complaint. NEW MATTER 16 Defendants' allegations as set forth in Paragraphs 1 through 15 above are incorporated herein by reference thereto. JtJ 17 There has never been any use by Plaintiffs or their predecessor in title of any access road over Defendants' property. 18 There exists now no physical evidence of an access road or easement over Defendants' property to allow access to Plaintiffs' property. 19 Plaintiffs and their predecessor in title abandoned any easement over Defendants' land that Plaintiffs may have claimed pursuant to the reservation in prior deeds as noted in Paragraph 7 of Plaintiffs' complaint. 20 Defendants and Defendants' predecessors in title have possessed the entire portion of Defendants' land in an adverse and notorious manner with respect to any claimed easement or right-of-way over Defendants' land in favor of Plaintiffs or Plaintiffs' predecessor in title, and Defendants and Defendants' predecessors in title have acquired by adverse possession any right- of-way or easement interest that Plaintiffs or Plaintiffs' prede(;essors in title may have retained over Defendants' land as a result of the reservation of title as set forth in Paragraph 7 of Plaintiffs' complaint. 21 The reservation of title as noted in Paragraph 7 of Plaintiffs' complaint fails to specify a location of a proposed roadway and fails to specify any length or width of a proposed roadway over Defendants' land. ~l 22 The reservation of the easement over Defendants' land as noted in Paragraph 7 of Plaintiffs' complaint is of such a vague and indefinite nature as to render the reservation meaningless and unenforceable and a nullity under the law, and unenforceable by this court. 23 In the event this court would determine that an easement or right-of-way exists over Defendants' land for the benefit of Plaintiffs, there is no legal or factuaJl basis for Plaintiffs to claim an easement or right-of-way over Defendants' land of a fifty-foot width. Similar right-of-ways, if granted by the court, are of a nature of only twelve to fifteen feet in width, and a twelve to fifteen foot wide right-of-way is the maximum amount necessary for the reasonable, proper and necessary beneficial enjoyment of Defendants' land. WHEREFORE, Defendants request your Honorable Court to dismiss Plaintiffs' complaint. Respectfully submitted, aY~ Hubert X. Gilroy, Es uire Attorney for Defe ants Broujos & Gilro , P.C. 4 North Hanover Street Carlisle, PA 17013 Supreme Court ID No. 29943 (717) 243-4574 J) I verify that the statements made in the foregoing document are true and correct. understand that false statements herein are made subject to the penalties of 1 8 P A.C.S. Section 4904 relating to unsworn falsification to authorities. DATE: ~ ~a\ ~ ;; ~.~ d3 I verify that the statements made in the foregoing document are true and correct. understand that false statements herein are made subject to the penalties of 18 P A.C.S. Section 4904 relating to unsworn falsification to authorities. DATE: .:3 - ~ <6 ~ 6 I \Y)~ 3~ Marlene A. Shealer el+ -VI. rl-: '-.. '-.- -l',- _ I ~~ ~- ._~-~ c~, ~:;- .'-.'"". ~-,,:: -< . j \,~ ,,,;;:/ ~~.) ,-~,;, :'..) (0 :-:.:-J --~ JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v : NO. 01 - 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : CIVIL ACTION - LAW STIPULATION The parties hereby stipulate that Defendants may file an "Amended Answer and New Matter" in the form as attached and marked Exhibit "A" without leave of court, provided said amended pleading is verified. tlII-J:b Hubert X. Gilroy, Esqu' Attorney for Defend s Broujos & Gilroy, P. . 4 North Hanover Street Carlisle, P A 17013 (717) 243-4574 Ri . nelbaker, Esquire Attorney for Plaintiffs Snelbaker, Brenneman & Spare 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Date: Apri 1 12. 2001 Date: p:J~ Ol06/ db JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLANI> COUNTY, PENNSYLVANIA v : NO. 01 - 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : CIVIL ACTION - LAW NOTICE TO PLEAD To: James M. Keller and Elaine M. Keller c/o Richard C. Snelbaker, Esquire Snelbaker, Brenneman & Spare 44 West Main Street Mechanicsburg, P A 17055 Attorney for Plaintiffs You are hereby notified to file a written response to the enclose:d New Matter within twenty (20) days from service hereof or a judgment may be entered .~~ -' p ('.J \~ ~\~- Date: April . 2001 Hubert X. Gilroy, Esquire Attorney for Defendants Supreme Court ID No. 29943 Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 (717) 243-4574 cxl4lS,r A JJ, t~[PY JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 01 - 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : CIVIL ACTION - LAW AMENDED ANSWER TO COMPLAINT ANI) NEW MATTER Defendants, Barry L. Shealer and Marlene A. Shealer, by their attorneys, Broujos & Gilroy, P.c., set forth the following in response to the complaint filed in the above matter: Admitted. 2 Admitted. 3 Admitted. 4 Admitted. 5 Admitted. 6 Admitted. Erlf/fj/ J A Jl ~'. ./",-," ill" :..~ !l \ i .\..::~, U . \ . . \......::l , )) (...;..~ Admitted. ~rgW>~ Denied. Plaintiffs are not entitled to an easement and right-of-way over Defendants' land. The allegations set forth in the New Matter below are incorporated herein by reference thereto. 9 Denied. Plaintiffs are not entitled to an easement and right-of-way over Defendants' land. The allegations set forth in the New Matter below are incorporated herein by reference thereto. By way of further answer, there is no basis in law or in fact for Plaintiffs to demand a fifty-foot width in an easement over Defendants' land. 10 Admitted that Plaintiffs' land does not abut any public road. Denied that Plaintiffs' do not have access to any public road except by the easement and right-of-way claimed by Plaintiffs' in Paragraph 8 of Plaintiffs' complaint. On the contrary, Deft~ndants have been advised that Plaintiffs have conveniently used other properties to access Plaintiffs' land, and Defendants aver that Plaintiffs have various understandings or agreements with other property owners in the area whereby Plaintiffs have been able to obtain access to Plaintiffs' land. Furthermore, as set forth in New Matter below and incorporated herein by reference themto, Plaintiffs are the owners of a 13.514 acre tract of ground which abuts Plaintiffs Land by which Plaintiffs have access to a public road. ~4~r II- J-r Admitted that Defendants have refused to ~~ze t~l1E Led that Plaintiffs have any rights of passage over Defendants' land. 12 Denied. The allegations set forth in Paragraph 10 above are incorporated herein by reference thereto. COUNT I 13 No responsive pleading is required. WHEREFORE, Defendants request your Honorable Court to dismiss Count I of Plaintiffs' complaint. COUNT II 14 No responsive pleading is required. 15 Denied. The allegations set forth Paragraph 10 above are incorporated herein by reference thereto. WHEREFORE, Defendants request your Honorable Court to dismiss Count II of Plaintiffs' complaint. cKH/4IT A J-f NEW:TTER t ~ ~1f Defendants' allegations as set forth in Paragraphs 1 through 15 above are incorporated herein by reference thereto. 17 There has never been any use by Plaintiffs or their predecessor in title of any access road over Defendants' property. 18 There exists now no physical evidence of an access road or easement over Defendants' property to allow access to Plaintiffs' property. 19 Plaintiffs and their predecessor in title abandoned any easement over Defendants' land that Plaintiffs may have claimed pursuant to the reservation in prior deeds as noted in Paragraph 7 of Plaintiffs' complaint. 20 Defendants and Defendants' predecessors in title have possessed the entire portion of Defendants' land in an adverse and notorious manner with respect to any claimed easement or right-of-way over Defendants' land in favor of Plaintiffs or Plaintiffs' predecessor in title, and Defendants and Defendants' predecessors in title have acquired by adverse possession any right- of-way or easement interest that Plaintiffs or Plaintiffs' predecessors in title may have retained over Defendants' land as a result of the reservation of title as set forth in Paragraph 7 of Plaintiffs' complaint. EK#/6/T A 30 21 tory The reservation of title as noted in Paragraph 7 of Plaintiffs' complaint fails to specify a location of a proposed roadway and fails to specify any length or width of a proposed roadway over Defendants' land. 22 The reservation of the easement over Defendants' land as noted in Paragraph 7 of Plaintiffs' complaint is of such a vague and indefinite nature as to render the reservation meaningless and unenforceable and a nullity under the law, and unenforceable by this court. 23 In the event this court would determine that an easement or right-of-way exists over Defendants' land for the benefit of Plaintiffs, there is no legal or factual basis for Plaintiffs to claim an easement or right-of-way over Defendants' land of a fifty-foot width. Similar right-of-ways, if granted by the court, are of a nature of only twelve to fifteen feet in width, and a twelve to fifteen foot wide right-of-way is the maximum amount necessary for the reasonable, proper and necessary beneficial enjoyment of Defendants' land. 24 Plaintiffs are the owners of a 13 .514 acre tract of ground which abuts legislative Route 21030- Goodyear Road (herein after referred to as the "Goodyear Road Property"). Plaintiffs acquired the Goodyear Road Property by deed from Elaine L. Keller, Executrix of the Last Will and Testament of John R. Nell, et al into Plaintiffs dated September 7, 1995 as recorded in the Cumberland County Recorder of Deeds Office in Deed Book 127, Page 1154. EX""~' r A- 3/ 25 The Goodyear Road Property owned by Plaintiffs abuts Plaintiffs' land which is the subject of this legal action and provides Plaintiff with access to a public road, specifically Goodyear Road, over the Goodyear Road Property and to Plaintiffs' land. WHEREFORE, Defendants request your Honorable Court to dismiss Plaintiffs' complaint. Respectfully.. $.Y. l~~~1 Q)\~ cg Hubert X. Gilroy, Esquire Attorney for Defendants Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 Supreme Court 10 No. 29943 (717) 243-4574 E~HI8, r A 3~ ;,' ;."~. ~. ~q ~~, ~. ""CfJ m!;B ~~ ~4c- :<0 ~g ~ ~ . o ~ '-i :T:n rnr- -'J.fTl :00 Ol, .-;-.-: :r: +1 i:";; i:') orn ~ ~ J> -0 ;:0 N w .,., ::lIi: ~ w JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v : NO. 01 - 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : CIVIL ACTION - LAW NOTICE TO PLEAD To: James M. Keller and Elaine M. Keller c/o Richard C. Snelbaker, Esquire Snelbaker, Brenneman & Spare 44 West Main Street Mechanicsburg, P A 17055 Attorney for Plaintiffs You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Date: April .') J ,2001 0V (C) Hubert X. Gilroy, Esquire Attorney for Defendants Supreme Court ID No. 29943 Broujos & Gilroy, P.c. 4 North Hanover Street Carlisle, P A 17013 (717) 243-4574 1J~ JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v : NO. 01- 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : CIVIL ACTION - LAW AMENDED ANSWER TO COMPLAINT AND NEW MATTER Defendants, Barry L. Shealer and Marlene A. Shealer, by their attorneys, Broujos & Gilroy, P.C., set forth the following in response to the complaint filed in the above matter: I Admitted. 2 Admitted. 3 Admitted. 4 Admitted. 5 Admitted. 6 Admitted. !Jcf 7 Admitted. 8 Denied. Plaintiffs are not entitled to an easement and right-of-way over Defendants' land. The allegations set forth in the New Matter below are incorporated herein by reference thereto. 9 Denied. Plaintiffs are not entitled to an easement and right-of-way over Defendants' land. The allegations set forth in the New Matter below are incorporated herein by reference thereto. By way of further answer, there is no basis in law or in fact for Plaintiffs to demand a fifty-foot width in an easement over Defendants' land. 10 Admitted that Plaintiffs' land does not abut any public road. Denied that Plaintiffs' do not have access to any public road except by the easement and right-of-way claimed by Plaintiffs' in Paragraph 8 of Plaintiffs' complaint. On the contrary, Defendants have been advised that Plaintiffs have conveniently used other properties to access Plaintiffs' land, and Defendants aver that Plaintiffs have various understandings or agreements with other property owners in the area whereby Plaintiffs have been able to obtain access to Plaintiffs' land. Furthermore, as set forth in New Matter below and incorporated herein by reference thereto, Plaintiffs are the owners of a 13.514 acre tract of ground which abuts Plaintiffs Land by which Plaintiffs have access to a public road. ~~ 11 Admitted that Defendants have refused to recognize Plaintiffs' claims. Denied that Plaintiffs have any rights of passage over Defendants' land. 12 Denied. The allegations set forth in Paragraph 10 above are incorporated herein by reference thereto. COUNT I 13 No responsive pleading is required. WHEREFORE, Defendants request your Honorable Court to dismiss Count I of Plaintiffs' complaint. COUNT II 14 No responsive pleading is required. 15 Denied. The allegations set forth Paragraph 10 above are incorporated herein by reference thereto. WHEREFORE, Defendants request your Honorable Court to dismiss Count II of Plaintiffs' complaint. 3~ NEW MATTER 16 Defendants' allegations as set forth in Paragraphs 1 through 15 above are incorporated herein by reference thereto. 17 There has never been any use by Plaintiffs or their predecessor in title of any access road over Defendants' property. 18 There exists now no physical evidence of an access road or easement over Defendants' property to allow access to Plaintiffs' property. 19 Plaintiffs and their predecessor in title abandoned any easement over Defendants' land that Plaintiffs may have claimed pursuant to the reservation in prior deeds as noted in Paragraph 7 of Plaintiffs' complaint. 20 Defendants and Defendants' predecessors in title have possessed the entire portion of Defendants' land in an adverse and notorious manner with respect to any claimed easement or right-of-way over Defendants' land in favor of Plaintiffs or Plaintiffs' predecessor in title, and Defendants and Defendants' predecessors in title have acquired. by adverse possession any right- of-way or easement interest that Plaintiffs or Plaintiffs' prede(:essors in title may have retained over Defendants' land as a result of the reservation of title' as set forth in Paragraph 7 of Plaintiffs' complaint. ~7 21 The reservation of title as noted in Paragraph 7 of Plaintiffs' complaint fails to specify a location of a proposed roadway and fails to specify any length or width of a proposed roadway over Defendants' land. 22 The reservation of the easement over Defendants' land as noted in Paragraph 7 of Plaintiffs' complaint is of such a vague and indefinite nature as to render the reservation meaningless and unenforceable and a nullity under the law, and unenforceable by this court. 23 In the event this court would determine that an easement or right-of-way exists over Defendants' land for the benefit of Plaintiffs, there is no legal or factual basis for Plaintiffs to claim an easement or right-of-way over Defendants' land of a fifty-foot width. Similar right-of-ways, if granted by the court, are of a nature of only twelve to fifteen fef:t in width, and a twelve to fifteen foot wide right-of-way is the maximum amount necessary for the reasonable, proper and necessary beneficial enjoyment of Defendants' land. 24 Plaintiffs are the owners of a 13.514 acre tract of ground which abuts legislative Route 21030- Goodyear Road (herein after referred to as the "Goodyear Road Property"). Plaintiffs acquired the Goodyear Road Property by deed from Elaine L. Keller, Executrix of the Last Will and Testament of John R. Nell, et a1 into Plaintiffs dated September 7, 1995 as recorded in the Cumberland County Recorder of Deeds Office in Deed Book 127, Page 1154. 3~ 25 The Goodyear Road Property owned by Plaintiffs abuts Plaintiffs' land which is the subject of this legal action and provides Plaintiff with access to a public road, specifically Goodyear Road, over the Goodyear Road Property and to Plaintiffs' land. WHEREFORE, Defendants request your Honorable Court to dismiss Plaintiffs' complaint. Respectfully submitted, ~(O Hubert X. Gilroy, Esquir Attorney for Defendant Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Supreme Court ID No. 29943 (717) 243-4574 3q I verify that the statements made in the foregoing document are true and correct. understand that false statements herein are made subject to the penalties of 1 8 P A.C.S. Section 4904 relating to unsworn falsification to authorities. DATE:~ I verify that the statements made in the foregoing document are true and correct. understand that false statements herein are made subject to the penalties of 18 P A.C.S. Section 4904 relating to unsworn falsification to authorities. DATE:~ ~~lJ~'~~ Marlene A. Shearer ~ (') c: s: ~f}i Z:D ..." r-' en)?; ::c/ .<' ;"::'c'. k-- ~O ~E ~ o o ~'l ~ -0 ;lQ N W -0 :x ca ~~f~ ~ ::~tq i..__J ...._.. (:)6 ::;j 'T ; -j~ ..u ~;(") t)m --l ;? ~ ~.,.) JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 01-771 CIVIL TERM CIVIL ACTION - LAW BARRY L SHEALER and MARLENE A. SHEALER, Defendants JURY TRIAL DEMANDED REPL Y TO NEW MATTER AND NOW, come the Plaintiffs by their Attorneys, Snelbaker, Brenneman & Spare, P.C., and respond to the New Matter contained in Defendants' Amended Answer to Plaintiffs' Complaint as follows: 16. Defendants' attempt to plead facts contained in their Answer is opposed as an improper pleading and should be stricken. Additionally, the facts so pleaded are each specifically denied for the reasons set forth in Plaintiffs' Complaint and hereinbelow as relevant and applicable. 17. It is admitted that Plaintiffs have not used an access road over Defendants' Land; however, after reasonable investigation, Plaintiffs are presently without knowledge or information sufficient to form a belief as to the truth of the averments concerning their predecessors' alleged non-use and, therefore, the same are deemed to be denied by reason of Pa. R.C.P. 1029 (c) and strict proof thereof is demanded at the trial ofthis action. 18. Admitted. By way of further response, it is averred that Defendants recently graded a substantial portion of Defendants' Land thereby obliterating any physical evidence of LAW OFFICES SNELBAKER. BRENNEMAN & SPARE an access road. 19. It is denied that Plaintiffs abandoned any rights they may have by any mean's, including, but not limited to, the reserved easement mentioned in their chain of title. On the ~( LAW OFFICES SNELBAKER. BRENNEMAN Be SPARE contrary and by way of further response, it is averred that Plaintiffs never had an intention to abandon any rights. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments concerning their predecessors' alleged abandonment of rights and, thereD)re, the same are deemed to be denied by reason ofPa. R.C.P. 1029 (c) and strict proofthereofis demanded at the trial of the case. 20. It is denied that Defendants have acted in any way as against Plaintiffs by which Defendants have extinguished any rights held by Plaintiffs by adverse possession. On the contrary, it is averred that Defendants have possessed Defendants' Land only since January 2000, a period of time far short of the requirement of 21 years. It is further denied that Defendants' predecessors in title acted in any manner as against Plaintiffs which would constitute adverse possession as against Plaintiffs' rights. After reasonable investigation, Plaintiffs are presently without knowledge or information sufficient to form a belief as to the truth of the averments concerning alleged adverse possession by Defendants' predecessors in title as against Plaintiffs' predecessors in title and the same are deemed to be denied pursuant to Pa. R.C.P. 1029 (c) and strict proof thereof is demanded at the trial ofthis action. By way of further response, it is averred that Defendants' theory of adverse possession has no application as a matter of law in this litigation. 21. Admitted. However, by way of further n:~sponse, it is averred that no precise location or dimensions are needed since the reservation cited by Defendants is confirmatory of Plaintiffs' easement based upon severance of ownership by the common owner of both parties' lands. 22. The content of paragraph 22 of New Matter is a series of conclusions of law to which no response is required and, therefore, the same is deemed to be denied. By way of 2 ~t further response, it is denied that the easement in question is unenforceable, and it is further averred that this Court has authority to fix and establish the dimensions of said easement. 23. The content of paragraph 23 of New Matter is a series of conclusions oflaw and non-factual hypotheses to which no response is required and, therefore, the same are deemed to be denied. It is further averred that this Court has authority to recognize, establish and define in this action Plaintiffs' easement in a manner and with dimensions with a view to the reasonable and lawful use of Plaintiffs' Land which includes the width necessary to create a road susceptible for development of Plaintiffs' Land, which would include a width of not less than 50 feet. 24. Admitted. 25. It is denied that the Goodyear Road Property adjoins Plaintiffs' Land in this action and further denied that Plaintiffs have the alternative access as alleged. On the contrary, it is averred that the lands of others exist between Plaintiffs' Land and the Goodyear Road Property. IN WITNESS WHEREOF, the Plaintiffs respectfully request your Honorable Court to enter judgment as prayed for in their Complaint. SNELBAKER, BRENNEMAN & SPARE, P.C. By ichard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Plaintiffs LAW OFFICES SNELBAKER. BRENNEMAN 8c SPARE 3 ~3 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE VERIFICATION We, the undersigned, being the Plaintiffs in this action and in the foregoing Reply to New Matter, do hereby verify that the facts set forth is said Reply within our personal knowledge are true and correct, and as to those facts not within our personal knowledge, we believe them to be true and correct based upon information received from others. We understand that any false statements made in said Reply to New Matter are subject to the penalties of 18 Pa. C.s. ~ 4904 relating to unsworn falsification to authorities. ~A~ James M. Keller ~J,~ Elaine N. Keller Dated: 11~ 1,2001 4-4- LAW OFFICES SNELBAKER. BRENNEMAN Be SPARE CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the foregoing Reply to New Matter upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID. ADDRESSED AS FOLLOWS: Dated: t1?JY 2 , 2001 Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 Attorneys for Defendants Ric a . Snelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055 (717) 697-8528 Attorneys for Plaintiffs % " (") ~ -rJ i~k~ _; n-ll~;- ??~: (jj:!; -< .' !;:CJ 5> -'"l z(~- ~~,=,:, :2 ~ c.:) ~ ?:~ I f".,) i 'j ~'1.-' (-, , .. ~~ ~-'::~ (~(.) ."'~cn ~.J ~ ~ ~'D :x Co.,,) .. :::;) (,.) PRAECIPE FOR LISTING CASE FOR TRIAL APR 0 9 2002 , (Must be typewritten and submitted in Ijuplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) for JURY trial at the next term of civil court. CAPTION OF CASE (entire caption must be stated in full) e ~ ~ ( X) for trial without a jury. ~ :;po,_, .----..----.----.------------.---.--..---..---.-------.---..---...-..-.....-----..--------------.-----..--..---...---------------------- __a - - - .~q~.---.;g----..,;~~.;p ----' I z~: U) ~~:~ ~c -0 :Pc' _.:;.. bc5 )> c ::- 3 t.rl -... co (check one) JAMES M. KELLER and ELAINE N. KELLER, Assumpsit Trespass Trespass (Motor Vehicle) (Plaintiffp ( X) A:ction.to Quiet Title and EquJty (other) vs. BARRY L. SHEALER and MARLENE A. SHEALER, The trial list will be called on I Not Appli~~l;>le I and N/A Trials commence on as fixed by Court (Defendant~ Pretrials will be held on as fixed by Court (Briefs are <jue 5 days before pretrials.) )CV}i . (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214-1.) No. 01-771 Civil ____!e!.m____ ___._ X19 2001 Indicate the attorney who will try case for the party who files this praecipe: Richard C. Sne1baker, Esq. (Sne1baker, Brenneman & Spc:tre, P. C.) Indicate trial counsel for other parties if known: _Hube::.!:._~.._ ~~lr_o!,:, ~.:>qu_irE:!.(~ro~j c:>s _ ~ Gilroy, P. C.) - A~torneys for Defendants. This case is ready for trial. Signed: _ ____ Print Name: _ Date: ApriL9, 20m Attorney for: Plaintiffs lrl JAMES M. KELLER and ELAINE N. KELLER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2001 - 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER CIVIL ACTION - LAW ORDER OF COURT AND NOW. this 15m day of APRIL, 2002. a pretrial conference in the above-captioned matter is SCHEDULED for FRXDAY, MAY 3, 2002, at 11.30 a.m. in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle. pennsylvania. pretrial memorandum shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five (5) days prior to the pretrial conference. TRIAL in the matter will be scheduled at the pretrial conference. counsel are directed to have their calendars available. cc: /ichard C. snelbaker, Esq. ~ubert x. Gilroy, Esq. Taryn Dixon Court Admi:::1Ir t=-flRi( 4" VINw\l,{SNN3d I I "/'~I"""r. n. ',Ill '-"':t.rnl"\ ,'\..1./, I C.J._-, ,. !i',',: :('":':;("{,"I V 9 TJ :2 i'id !; I CJd~ '0 )tf1i.1r...., ." " ""::10 ,- 'v"','i i'-, ,I ,,~-:...; ."'/1 ' ..... ~......I ....w\../ _.,..... ....,II ._ 3::Xf:lO-Q;17Li JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 2001 - 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, Defendants COURT ORDER AND NOW, this It~day of April, 2002, the pretrial conference in the above case ~ that is scheduled for May 3, 2002 at 11:30 a.m. is rescheduled for the ~ day of /Yl'1" , 2002 at '.:1/> !.M. In all other respects, this court's order of April 15, 2002 shall remain in effect. Edward E. Guido, J. ~ubert x. Gilroy, Esquire Taryn Dixon Court Administrator L~ 01-/9'09- cc: ~chard C. Snelbaker, Esquire 41 , It "- \i!N'v'/\lASNN3d },lN~n('{'; (1';' /""1-P1='1":\!n'" 11-,,#', '" '............,.. V S I :8 6 I HdV 20 Atj\ilCi[',{C.ij"";.l.i'..iL<.! L ::10 :1~;;J_::Cl'--CI31'j JAMES M. KELLER and ELAINE N. KELLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BARRY L. SHEALER and MARLENE A. SHEALER, Defendant 01-0771 CIVIL TERM PRETRIAL CONFERENCE At a pretrial conference held :May 8, 2002, before Edward E. Guido, Judge, present for the Plaintiffs was Richard C. Snelbaker, Esquire, and for the Defendants, Hubert X. Gilroy, Esquire. This is a land dispute over the location and size of an easement. Counsel expect this case to take one half day to try. The bench trial of this matter is scheduled before the undersigned on Counsel are directed to confirm the availability of all of their witnesses. Any request of continuance based upon unavailability of witnesses must be made within 10 days of today's date. Counsel are directed to pre-mark all exhibits. They are further directed to file any motions in limine with supporting authority by July 19, 2002. Any response with support of authority shall be filed by July 26th, 2002. Richard C. Snelbaker, Esquire Court Administrator For the Plaintiffs Hubert X. Gilroy, Esquire 7 It . > (\ , For the Defendants ~ V~~fYR){3 5-0 VlN' J '^,r>",., V;1?A.SVN3d "I..l. I /(j,) n/lll..;-,.."-,,.... .... " ;;:;:!e/frVno "" U 1 '11>/,/ '1/ A Vi/ cO 1\' tr'/((H i ,'. , . CJ~,..../jLI/:_I"/"" . . "::;'::;'i ,~~J!Jj .-;,--/1. _In ""v/:1.:t,.""u:Jx/ _ "" -..J 1/_1 JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLANn COUNTY, PENNSYL VANIA v : NO. 01 - 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : CIVIL ACTION - LAW MOTION IN LIMINE Defendants, Barry L. Shealer and Marlene A. Shealer, by their attorneys, Broujos & Gilroy, P.C., sets forth the following Motion in Limine: 1 Trial in the above case is scheduled for Monday, July 29,2002 at 1:00 p.m. 2 The Pretrial Conference Order issued by this court directed the parties to file any Motions in Limine with supporting authority by July 19, 2002, with responses to those Motions due on July 26, 2002. 3 Defendants move this court to exclude the following evidence which Defendants believe Plaintiffs will attempt to introduce at the trial in this matter: A. Evidence relating to the current zoning ordinances or subdivision ordinance of Dickinson Township. B. Evidence relating to the current regulations of the Pennsylvania Department of Transportation as referenced in the Pennsylvania Code. Sf ~~ .~ .... '. -, .. 4 A memorandum in support of this Motion is tiled with this Motion. WHEREFORE, Defendants request your Honorable Court. to order that the Plaintiffs be excluded from presenting any testimony at the trial in this case relating to current zoning or subdivision regulations of Dickinson Township and an.y evidence relating to current rules and regulations of the Pennsylvania Department of Transportation. Respectfully submitted, 0/t?() . Hubert X. Gilroy, Esquir Attorney for Defendan Broujos & Gilroy, P. . 4 North Hanover Street Carlisle, P A 17013 (717) 243-4574 Supreme Court ID No. 29943 5~ JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 01 - 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW this 18th day of July, 2002, I, Hubert X. Gilroy, Esquire, do hereby certify that a true and correct copy of the foregoing Motion in Limine was placed in the United States Mail, First Class, Postage Pre-Paid and addressed as follows: Richard C. Snelbaker, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mecbanicsburg, P A 17055-0318 7/lt/O;; DATE C)[i- f-; Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 53 0 C) () C t'.J .1 -';1"" ~~... C- _u-1 -0 OJ -r m r:-l .P"'~- f.Il z i~l , :;.:~ r-i1 " CJ (/) ",.l, CD ;:;:: " ~~ :".:-- , ., .....::: ( :~ (;:.: .- () (~) fT\ ;. ../" :"''''i I.... '0') ',..... =~ :0 <:-J -< LAW OFFICES SNELBAKER. BRENNEMAN Be SPARE JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 01-771 CIVIL TERM CIVIL ACTION - LAW BARRY L SHEALER and MARLENE A. SHEALER, Defendants JURY TRIAL DEMANDED PLAINTIFFS' MOTIONS IN LIMINE TO THE HONORABLE EDWARD E. GUIDO, JUDGE MOTIONS AND NOW, come the Plaintiffs in the above-captioned action by their Attorneys, Snelbaker, Brenneman & Spare, P.C. and respectfully n::quest the Court to: 1. Permit Plaintiffs to introduce evidence to establish the dimensions and other current requirements for establishing the location and dimensions of Plaintiffs' access easement so as to be developed as a public township road, said evidence to include (a) Dickinson Township subdivision and other regulations establishing criteria for public roads; and (b) Pennsylvania Department of Transportation regulations governing intersection of such proposed public road with an existing public road under PennDOT jurisdiction. 2. Exclude Defendants' evidence as to dimc:msions of existing private access roads purporting to be in similar circumstances. DISCUSSION: General Factual Back2round Attached hereto at page 2 is a sketch of the relative location of the parties' lands, being the same general drawing as attached to Plaintiffs' Pretnlal Memorandum. 64- ~ .-? ......\.~ ~'J;' .~i~~~;:. iI} 'f.~~~:. . ,;.:.. ,. ........; ..... PLAINTIFFS' LAND ,---- DEFENDANTS' LAND PA Route 1/34 -2- 6T LAW OFFICES SNELBAKER. BRENNEMAN & SPARE Defendants have admitted Plaintiffs' right to access from Pennsylvania Route No. 34 across their land eastwardly to Plaintiffs' land. The remaining issues for this Court's decision are to establish the location and dimensions of the road. Both properties are located in Dickinson Township. Both properties originate from a common grantor: George W. Paxton, who conveyed what is now Defendants' Land by deed dated September 24, 1924 (See Deed Volume 9- X, Page 349). All other frontage along Pa. Route 34 was previously sold (see ~ 6 of Complaint). Mr. Paxton retained what is now Plaintiffs' Land, which devolved to Plaintiffs. Plaintiffs suggest that the location ofthe admitted easement be generally along Defendants' southern boundary line and that it have a width of not less than 50 feet, but that its intersection with Pa. Route 34 be governed by Penn DOT regulations. In George Paxton's deed cited above (9-X-349), he provided as follows: In consideration of the above tract of land the Grantor reserves a roadway from the Carlisle and Gettysburg public road to a point on the eastern end of said tract for his use or his assigns for a time unlimited, or as long as grass grows or water runs. There are two significant matters rising from the foregoing quotation: (1) He reserved a "roadway" - not mc~rely a trail or lane; and (2) He specified no specific location or dimensions. -3- .~ LAW OFFICES SNELBAKER. BRENNEMAN & SPARE ARGUMENT RE MOTION #1 In General Plaintiffs contend they are entitled to an easement capable of being improved and dedicated as a public road so as to fully enjoy their property. In order to have such access recognized as a public road, they believe they must comply with both local municipal and State regulations. In this regard, they propose to introduce into evidence (a) the Dickinson Township Subdivision and Land Development Ordinance (No.3 of 1947) as amended, (b) the Dickinson Township Zoning Ordinance (No.1 of 1994), as amended, and (c) Pennsylvania Department of Transportation highway occupancy permit regulations as found at ~ 441.1, et seq. of 67 Pa. Code. The Dickinson Township Ordinances prescribe the requirements for acceptance of a new roadway as a public road, and the PennDOT regulations govern the manner in which a new roadway may intersect an existing state highway. It is these matters which are the subject of Motion # 1. Requirement for Public Road and ResultiDl~ Dimensions Since the language ofthe Paxton deed above contains no specification of the location and dimensions, the question naturally arises as to what type of road is allowed under prevailing law. The overriding general rule is stated by the Pennsylvania Supreme Court in Soltis v. Miller, 444 Pa. 357,282 A.2d 369 (1971): Appellees urge that a way of necessity cannot be used beyond the scope ofthe use made at the time of its creation. We disagree. Neither party nor our own research had disclosed a decision of -4- 57 this Court directly on point. After careful consideration, we are of the view that the preferable policy is to define the enjoyment of a way, of necessity with a view to the reasonable and lawful uses of the land it benefits. The Court then cited with approval the following from Tiffany, Real Property, 345: "An easement of necessity has been regarded as not limited, as regards its utilization, by the mode in which the dominant tenement was used at the time of the creation ofthe right, but as available for any use incident to a change in the use of such tenement. It has been said that an easement of necessity 'would seem to be coextensive with the r,easonable needs, present and future, of the dominant estate for such a right or easement, and to vary with the necessity, in so far as ma.y be consistent with the full reasonable enjoyment of the servient tenement.'" Plaintiffs intend to subdivide their tract into smaner parcels for sale. Dickinson Township, not unlike most regional municipalities, requires subdivided parcels to front on or have direct access to a public road. Thus, Plaintiffs mus.t develop a public road from Pa. Route 34 across Defendants' Land and into their own property. Subdivision of land for sale is a routine part of modem land ownership - a reasonable and lawful use under Soltis v. Miller. The fact that no active use has existed for many years does not limit the use to some lesser dimensions. Soltis v. Miller dealt with the enlargement of an existing road and reversed the trial court for limiting such use: " . . . [e ]nlarged uses of easements resulting from a change in the use of the dominant tenement have been recognized by this Court to be within the scope ofthe original easement." (citing cases) Therefore, the fact that no defined use was made does not prevent Plaintiffs from demanding LAW OFFICES SNELBAKER. BRENNEMAN Be SPARE -5- 51 dimensions which will permit their development of the dominant tenement to which the roadway is an appurtenance. The rule of Soltis v. Miller is not limited to easements of necessity. In Bodman v. Bodman, 456 Pa. 442, 321 A2d 910 (1974), the Supreme Court addressed a similar issue where the underlying easement has been acquired by prescription. A lane had been created for movement of agricultural machinery to and from the dominant tenement. The owner then changed the use for a road to service a recreational subdivision. In allowing the change, the Court cited Restatement of Pro pert v, S 479 (1944) as follows: "Furthermore, 'normal evolution in the use of the dominant tenement' will permit reasonable increases in the burden imposed on the servient tenement." Finally, we cite Piper v. Mowris, _Pa. __, A2d 635 (1976) in which the Supreme Court dealt with a vague express grant of easement via the words (a) "together with the use of the right-of-way to the public road", and/or (b) "together with a full right of ingress and egress to a public road". The easement had been used for many years as a pedestrian path to and from the dominant land. The present owner (Mowris) sought to expand both the size and use of the easement for motor vehicle use. The Court first quoted from Bower v. Mvers, 237 Pa. 533, 85 A860 (1912), where the issue was changing an easement from pedestrian use to uses by horses and vehicles: LAW OFFICES SNELBAKER. BRENNEMAN 8: SPARE "A right of way granted or reserved in general terms may be used for any purpose reasonably necessary for the party entitled to use it. The fact that the person entitled to such way has used it for one purpose only for a long series of years -6- 5'1 does not restrict its use to that purpose only. The grant being in general terms, it must be construed to include any reasonable use to which the land may be devoted." Of particular relevance is the following observation and conclusion: "While the facts in this case indicate that the right of way was used infrequently for vehicular use, we are also mindful of the facts, as pointed out by the court below, that appellant, Harold O. Mowris, is land locked. To deny him the use of vehicles over the right-of-way would, for all practical purposes, render the land useless since there is no other means of ingress or egress onto the Mowris tract." Plaintiffs submit the township ordinances fix the minimum requirement for creating and dedicating a public road. Article VI ofthe subdivision and Land Development Ordinance specifies a minimum width of 50 feet if a "local street" ~md 60 feet if a "collector street". Thus, the Ordinance plays a very relevant part in fixing the width dimension. Because the proposed roadway will connect with a State highway, the Pennsylvania Department of Transportation will determine the dimension and location of the point of intersection. Thus, chapter 441 of Title 67 of the Pennsylvania code is relevant to the actual location. Plaintiffs have suggested that the roadway be located along the southern side of Defendants' property in order to minimize interference with Defendants' improvements. However, the exact location at the joinder with Route 34 will be determined by PennDOT via its permitting process. LAW OFFICES SNELBAKER. BRENNEMAN & SPARE In light of all the foregoing, Plaintiffs have a right to submit evidence from which the -7- ~D LAW OFFICES SNElBAKER. BRENNEMAN & SPARE Court can decide the dimensions ofthe roadway. The municipal land use regulations coupled with PennDOT highway occupancy permit regulations will provide this Court with the data by which Plaintiffs' reasonable use for public roadway purposes can be defined. ARGUMENT RE MOTION #2 In General Defendants have indicated their intention to attempt to limit the width of the Plaintiffs' roadway to 12-15 feet (, 23 from Answer) by the following evidence: (a) testimony by a Dickinson Township Supervisor as to the width of existing private roads in Dickinson Township, and (b) documentary evidence of recorded private roads which provide specific dimensions. Plaintiffs object to such evidence and request the: Court to deny its admission. Specific Ar2uments There are two very apparent reasons for excluding Defendants' evidence. First, there is the matter of the irrelevancy of the proffered evidence. All of the instances to be cited by Defendants relate to private transactions obviously negotiated or created by the owners of the dominant and servient tenements. Their dimensions were not created by a rule of law, but rather by the parties' agreements or specific uses. How others have created their easements is wholly irrelevant to the instant case. The fact that parties unrelated to this case negotiated a 12 to 15 feet wide road to serve their respective purposes is certainly not precedent or evidence of what the dimensions should be in the immediate litigation. Secondly, Defendants' evidence is wholly antithetical to the applicable law as cited and discussed in the first motion above. Since Plaintiffs are not bound to any predetermined -8- (PI LAW OFFICES SNELBAKER. BRENNEMAN & SPARE limitations as set forth in the cited cases, admission of evidence attempting to do so would be Improper. roads. CONCLUSIO~ Plaintiffs respectfully request the Court to: 1. Order the admissibility of Dickinson Township Subdivision and Land Development Ordinance and Chapter 441 of Title 67 ofthe Pennsylvania Code; and 2. Deny the admissibility of Defendcmts' evidence concerning existing prior SNELBAKER, BRENNEMAN & SPARE, P.C. By . chard C. Snelbaker, Esquire Pa. Supreme Court I.D. No: 06355 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Plaintiffs James M. and Elaine N. Keller -9- &Jv LAW OFFICES SNELBAKER. BRENNEMAN 8: SPARE CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the foregoing Plaintiffs' Motions in Limine upon the attorney for Def~:ndants and in the manner indicated below: FIRST CLASS MAIL. POST AGE PREPAID. ADDRESSED AS FOLLOWS: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Ric nelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE, P.C. 44 West Main Stre:et P.O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiffs Dated: July /9, 2002 ~3 n ~,:; i.:l Lr.l f7-1L!,_; E.~~! '''' c~. ~~~~ 2: -j -, r-, i~~,) C) ..'h ;-=1 j'j;!]] '-'-1 - C c::J 'oj,S I-r :\-d ~-;: ~ C) ~ ::D -< '.0 \:J W :" a JAMES M. KELLER and ELAINE N. KELLER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. BARRY L. SHEALER and MARLENE A. SHEALER, Defendant 01-0771 CIVIIJ TERM ORDER OF COURT AND NOW, this 29th day of July, 2002, the parties are directed to file memorandum of law in support of their respective positions by Monday, August 12, 2002. The parties are given until August 19th to file responsive briefs if they so desire. By the Court, Richard C. Snelbaker, Esquire For the Plaintiffs Hubert X. Gilroy, Esquire For the Defendants . ~ /YVW~ 1-30' D2...J ~- srs w \f\N'1 t\t\SNN3d I \Nr.f~'- ,-' ".'-' \-,"""\"'8 '\! \1 l' \ ~ 'l\"-:~ ......_.l~~'\.\; I. J\..l.. . ,,_'.1 . .:. " ..1' ,\ \ \ ~O I;\~ \] t, lnl' 'C,\) AO\!tC,',' .' ...,. JAMES M. KELLER, and ELAINE N. KELLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY" PENNSYLVANIA V. BARRY L. SHEALER and : NO. 2001-0771 CIVIL TERM MARLENE A. SHEALER, Defendants IN RE: LAND EASEMENT DICKINSON TOWNSHIP BEFORE GUIDO. J. DECREE NISI AND NOW, this /t,-t:Ia day of OCTOBER, 2002, it is ordered and decreed that the plaintiffs, their heirs and assigns, have a perpetual 15 foot wide easement for purposes of ingress and egress to Pennsylvania Route 34. Said easement is appurtenant to the land described in Cumberland County Deed Book 127, page 1160 and runs across the land of defendants as described in Cumberland County Deed Book 216 page 428. This decree shall become final unless either party files exceptions within ten (10) days. - Edward E. Guido, J. Richard C. Snelbaker, Esquire -.~ ~ /~. .1'1, o.J.- Hubert X. Gilroy, Esquire L7-' j :sld ~ or 'fi f\:V/\"l.\S:'< N3d :. .-C' :'~, '/r."." . t :i'~L!~j./\tI h./ S6 :i; told L I 1JO ZO .. JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : NO. 2001-0771 CIVIL TERM CIVIL ACTION - LA W IN RE: LAND EASEMENT DICKINSON TOWNSHIP BEFORE GUIDO, J. OPINION AND DECREE NISI FINDINGS OF FACT Almost 90 years ago George W. Paxton acquired title to 15 Yi acres of mountain land in Dickinson Township, Cumberland County, Pennsylvania. The tract had slightly more than 400 feet of frontage along Pennsylvania Route 34 (also known as the Gettysburg Road). Over the next decade Mr. Paxton sold off three parcels containing in the aggregate just under 4 Y2 acres and all of the frontage along the Gettysburg Road. The third and final outparcel was conveyed in 1924. It consisted of a little more than one acre and contained the remaining 238 feet of road frontage. The sale of that third tract gives rise to the litigation currently before us. Since the conveyance effectively landlocked his remaining 11 acres, Mr. Paxton reserved access thereto with the following language in the deed: In consideration of the above tract of land the Grantor reserves a roadway from the Carlisle and Gettysburg Public road to a point on the eastern end ofthe said tract for his use or his assigns for a period of time unlimited, or as long as grass grows and water runs. ~~ NO. 2001-0771 CIVIL TERM A 60 foot long single family residential dwelling was eventually built on the outparcel in question. The residual mountain land has remained in its original unimproved state. The easement has not been used. Plaintiff Marlene A. Shealer is the great granddaughter of George W. Paxton. She and her husband acquired title to the residual tract from her father's estate in 1995. The defendants purchased the outparcel with improvements in March of2000. Plaintiffs desire to subdivide their land into a seven lot residential development. However, in order to be in compliance with the applicable township ordinances and Penn DOT regulations, 1 they must construct a 50 foot wide public road across defendants' land. They contend that this contemplated use is permitted under the terms of the easement. Understandably, the defendants do not want a 50 foot wide public road running across their property. They contend that no such uSle was ever contemplated and that a private road 12 to 15 feet wide is all that plaintiffs are c~ntitled to under the terms of the original reservation.2 CONCLUSIONS OF LAW (1.) Plaintiffs have an express easement across defendants' land to Pennsylvania Route 34. (2.) The parties to the original grant did not intend the "roadway" to be 50 feet wide or to be dedicated to the public. I No such ordinances or regulations existed at the time of the original grant. 2 A 15 foot wide private road would be sufficient to allow for the construction of a single family residence on the tract. 2 ~7 NO. 2001-0771 CIVIL TERM (3.) Plaintiffs, as owners ofthe dominant tenement, are entitled to an easement of sufficient width to accommodate the reasonable and lawful use of their land without creating an unreasonable burden on the defendants'servient tenement. (4.) Plaintiffs proposed construction of a 50 foot wide road and its subsequent dedication to the township for public use would unreasonably burden the servient tenement. (5.) The construction of a 15 foot wide private roadway would not unreasonably burden the servient tenement. DISCUSSION We have been asked to determine the nature and scope of the easement retained by George Paxton in the 1924 deed to defendants' predecessors in interest.3 The Superior Court summarized the law on this issue as follows: When a right-of-way is expressly granted, its scope is determined by ascertaining the intention of the parties to the grant. Lease v. Doll, 485 Pa. 615,403 A.2d 558 (1979). The easement is construed in favor of the grantee where the terms ofthe grant are vague, so as to permit reasonable use and enjoyment. Id. This is so because a right-of-way is generally granted of necessity, providing the owner of property landlocked by subdivision with access to the public road. The landlocked property would otherwise be rendered virtually useless.. Piper v. Mowris, 466 Pa. 89,351 A.2d 635 (1976). Although the extent of an easement is limited to that which has been granted, our courts have consistently pelmitted express easements to accommodate modem developments, so long as the use remains consistent with the purpose for which the right was originally granted. This is based upon a presumption that advances in technology are contemplated in the grant of the easement. Smith v. Fulkroad, 305 Pa.Super. 459,451 A.2d 738 (1982). Thus Lease, supra, and Piper, supra, allowed easements granting ingress and egress to the dominant tenements across the servient 3 Although the language is also silent as to the location of the easement, that issue has been resolved by agreement of the parties. 3 (Po NO. 2001-0771 CIVIL TERM tenements to expand from footpaths to ways permitting passage of motor vehicles. The use, or more appropriately, pw-pose, remained the same- access to landlocked property. Only the extent of that use reasonably increased. Hash v. Sofinowski, 337 Pa.Super. 451, 454, 487 A.2d 32, at 33-34 (1985). Applying the above law to the case before us, we are satisfie:d that the width of the easement across defendants' land should not exceed 15 feet. Intention of the Parties. The intention of the parties "is determined by a fair interpretation and construction of the grant and may be shown by the words employed construed with reference to the attending circumstances known to the parties at the time the grant was made." Lease v. Doll, supra, 403 A.2d at 561 (quoting Menill v. Manufacturers Light and Heat Co., 409 Pa. 68, 73, 185 A.2d 573,575 (1962)). In the instant case, we find that the parties did not intend the easement to be 50 feet widle nor did they intend it to be dedicated to the public. In the first instance, the grant of a 50 foot wide easement would have been both unusual and unnecessary in 1924. A 50 foot easement would contain more than 20 per cent of the road frontage conveyed with the servient tenement. We would clearly expect such a large easement to be expressly stated in the grant. Furthermore, any conceivable need for ingress and egress to the mountain tract retained by Mr. Paxton could have been accomplished with a 12 or 15 foot wide easement. Additionally, the reservation for use of the roadway was personal to Mr. Paxton or "his assigns." Had the parties intended it to be used by the public, or dedicated to the township, it is reasonable to assume that the language in the reservation would have so 4 ~~ NO. 2001-0771 CIVIL TERM indicated. Furthermore, if Mr. Paxton had intended to dedicate 50 feet of frontage along the Gettysburg road to public use, he is more likely to have retained title to it rather than simply reserving an easement. This is particularly true ifhe had intended to develop the remaining land, which we conclude he did not.4 There is no basis to conclude that the parties to the 1924 deed intended the easement to be for anything other than the personal use ofthe owner and future owners of the remaining mountain land. All developable property and road frontage was sold off relatively quickly. A private roadway was retained for access to otherwise inaccessible mountain land. To conclude that the parties intended that access to be 50 feet wide and public is not supported by reason or common sense.5 Modern Developments. Plaintiffs argue that "subdivision of land for sale is a reasonable part of modem land ownership".6 Therefore, they contend, the case law requires us to construe this easement broadly enough to accommodate the proposed residential subdivision. We disagree. It is true that the cases have consistently allowed the reasonable expansion of express easements for ingress and egress to accommodate modem developments, "so long as the use remains consistent with the purpose for which the right was originally 4 Weare satisfied that Mr. Paxton had no intention of developing the remaining land at the time he sold the last vestiges of road frontage. The most reasonable conclusion is that he intended to use the remaining land as a mountain retreat for which an easement would suffice. 5 Citing the ancient Supreme Court case of Respublica v. Arnold, 3 Yeates 417, plaintiffs argue that the word "roadway" means a road for public use. We disagree. See for example the much more recent Supreme Court case of Garan v. Bender, 357 Pa. 487, 55 A.2d 353, (1947) in which the word "road" was used to describe an easement for private use. 6 Plaintiffs brief, p. 10. 5 1D NO. 2001-0771 CIVIL TERM granted." Hosh v. Sofinowski, 487 A2d at 34. The cases most often cited in support of this proposition are Piper v. Mowris, and Lease v. Doll, supra. However, the underlying premise in each case was that denial of the requested expansion would render the landlocked parcel virtually useless. In the instant case, a single family residence can be constructed on the plaintiffs' land so long as a 15 foot privat1e way provides access to the Gettysburg Road. Therefore, the land can be used gainfully, albeit not as profitably, with the easement as originally intended. Furthermore, the cases recognize that the expanded use must not "unreasonably interfere with the use of the servient tenement". Lease v. Doll, 403 A.2d at 563, Piper v. Mowris, 351 A.2d at 641. Requiring the defendants to allow the construction ofa 50 foot wide public road across their land would unreasonably interfere with their use ofthat property. Therefore, we will enter the order that follows. DECREE NISI AND NOW, this 16TH day of OCTOBER, 2002, it is ordered and decreed that the plaintiffs, their heirs and assigns, have a perpetual 15 foot wide easement for purposes of ingress and egress to Pennsylvania Route 34. Said easement is appurtenant to the land described in Cumberland County Deed Book 127, page 1160 and runs across the land of defendants as described in Cumberland County Deed Book 2:16 page 428. This decree shall become final unless either party files exceptions within ten (10) days. By the Court, Richard C. Snelbaker, Esquire Hubert X. Gilroy, Esquire sl Edward E. Guido Edward E. Guido, J. 6 il LAW OFFICES SNELBAKER. BRENNEMAN & SPARE JAMES M. KELLER and ELAINE N. KELLER, IN THE COURT OF COMMON PLEAS OF CUMBEHLAND COUNTY, PENNSYLVANIA Plaintiffs vs. : NO: 2001- 0771 CIVIL TERM BARRY L. SHEALER and MARLENE A. SHEALER, CIVIL ACTION - LAW Defendants PLAINTIFFS' EXCEPTIONS TO DECREE NISI AND NOW, come Plaintiffs, James M. Keller and Elaine N. Keller, by their attorneys, Snelbaker, Brenneman & Spare, P.C., and respectfully except to the Decree Nisi as issued on October 16, 2002, by Honorable Edward E. Guido, in the following particulars: 1. Plaintiffs contend that the Court erred (a) in not finding Plaintiffs' easement to have a width of fifty (50) feet and susceptible for dedication as a public road, and (b) in limiting the easement to fifteen (15) feet and private in nature, said decision being contrary to law and the evidence and the weight of the evidence. 2. More specifically, the Court erred in the following respects (with references to the sections and pages in the Opinion): A. FINDINGS OF FACT (1) Page 2: In the absence of credible evidence, the Court erred in determining that the dwelling house on Defendants' land was 60 feet in length. (2) Page 2: Marlene A. Shealer is neither a Plaintiffnor the great granddaughter of George W. Paxton. Marlene A. Shealer is a Defendant. 1~ (3) Page 2, Footnote 2: The finding that a 15-foot wide private road would be sufficient to allow for construction of a single family residence on Plaintiffs' land fails as a matter oflaw to consider the myriad oflawful uses of Plaintiffs' land, particularly those allowed under Section 3.3 of the Dickinson Township Zoning Ordinance, and improp1erly confines Plaintiffs' use to one very limited use. B. CONCLUSIONS OF LAW (1) Page 2: The Court's Conclusion #(2.) concerning the parties' negative intentions as to width and use is not supported by the evidence. (2) Page 3: The Court's Conclusion #(4.) concerning Plaintiffs' proposed width and purpose as being an "unreasonable burden" on the Defendants' land is not supported by the evidence and is contrary to law. (3) Page 3: The Court's Conclusion #(5.), to the extent it fixes the limits of Plaintiffs' easement, is contrary to law. While Plaintiffs agree that a 15- foot private easement would not be an unreasonable burden on the servient tenement, they disagree that such conclusion is the limit allowed by law. C. DISCUSSION LAW OFFICES SNELBAKER. BRENNEMAN & SPARE (1) Page 4: The Court erred in concluding that the cited law (Hash v Sofinowski) supports its decision to limit Plaintiffs' easement to a width of 15 feet and to being private in nature. 2 13 (2) Page 4: There is no evidence to support the Court's holding that "the parties did not intend the easement to be 50 feet wide nor did they intend it to be dedicated to the public." Such holding is arbitrary and capricious. (3) Page 4: There is no evidence to support the Court's holding that "the grant of a 50 foot wide easement would have been both unusual and unnecessary in 1924." Such holding is arbitrary and capricious. (4) Page 4: There is no law nor evidence to support the Court's holding that "[ w]e would clearly expect such a large easement to be expressly stated in the grant." Such holding is speculative, arbitrary and capricious. (5) Page 4: There is no evidence or other justification for the Court's holding that "any conceivable need for ingress and egress to the mountain tract retained by Mr. Paxton would have been accomplished with a 12 or 15 foot wide easement." Such holding is arbitrary and capricious. (6) Page 4: The Court erred in holding that the reference to "his assigns" limited the roadway to a private (non-public) use. Such holding is contrary to law. (7) Pages 4-5: There is no law, evidence or other justification for the Court's holding that "[h]ad the parties intended it [the easement] to be used by the public or dedicated to the township, it is reasonable to assume that the language in the reservation would have so indicated." Such holding is speculative, arbitrary LAW OFFICES SNELBAKER. BRENNEMAN & SPARE and capricious. (8) Page 5: There is no law, evidence or other justification for the Court's holding that "if Mr. Paxton had intended to dedicate 50 feet of frontage 3 7+ along the Gettysburg Road to public use, he is more likely to have retained title to it rather than simply reserving an easement." Such holding is speculative, arbitrary and capricious. (9) Page 5 and Footnote 4: Thlere is no evidence to support the Court's holding that Mr. Paxton had no intention of developing the remaining land [Plaintiffs' land] when he sold the last vestiges of road frontage. Such holding is speculative, arbitrary and capricious. (10) Footnote 4, Page 5: There is no evidence to support the Court's holding that "[t]he most reasonable conclusion is that he [Mr. Paxton] intended to use the remaining land as a mountain retreat for which an easement would suffice." Such holding is speculative, arbitrary and capricious. (11) Page5, last paragraph under heading of "Intention ofthe Parties": The Court's conclusionary paragraph is not supported by the evidence or other justification. All of the specific exceptions hereinabove are equally applicable to this summary paragraph and are incorporated herein by reference thereto. Additionally, the conclusion that Plaintiffs contention "is not supported by reason or common sense" is arbitrary and capricious. (12) Footnote 5, Page 5: The Court erred as a matter oflaw in holding that Respublica v. Arnold, 3 Yeates 417 was overruled by Garon v. Bender, 357 Pa. 487, 55 A.2d 353 (1947). Not only is Garon v. Bender inapposite to the LAW OFFICES SNELBAKER. BRENNEMAN & SPARE present case, but does not overrule or even distinguish Respublica v. Arnold. (13) Pages 5-6: The Court erred as a matter oflaw that the cases Lease v. Doll, 485, Pa. 615,403 A.2d 558 (1979), Piper v. Mowris, 466 Pa. 89,351 4 lb A.2d 635 (1976), Hash v. Sofinowski, 487 A.2d 34, turned on the dominant land being rendered useless unless the relief sought was granted. While the cases may have cited such situation, the courts did not make the uselessness an element of the rule(s) being applied. It is further noted that the Court erred by holding that Plaintiffs' land could be developed only as a site for single family residence, which conclusion itself, in light of the large number of lawful uses, renders Plaintiffs' land "virtually useless." (14) Page 6: The Court erred as a matter oflaw in limiting Plaintiffs' use to a single family residence served by a 15-foot wide driveway. The further reasoning as contained in paragraph 2.A.(2) hereinabove is incorporated herein by reference thereto. (15) Page 6: The Court erred in holding that a 50 foot wide public road would unreasonably interfere with Defendants' use oftheir property in the absence of credible evidence substantiating such conclusion. As noted on page 1 of the Findings of Fact, the Defendants' property has road frontage of228 feet and at page 4 of Discussion that a 50-foot easement would consume about 20% of such frontage. The Defendants would ha.ve unencumbered frontage of 178 feet or 80% of the total per their deed. To hold that such use would "unreasonably interfere" with Defendants' use of this land is, therefore, contrary to law and is arbitrary and capricious. LAW OFFICES SNELBAKER. BRENNEMAN & SPARE 5 l(P 3. The Plaintiffs further except to the Decree Nisi as follows: A. The Court failed to find that Plaintiffs' land could be lawfully used for many uses other than a single family residence or a "mountain retreat" as authorized in Section 3.3 ofthe Dickinson Township Zoning Ordinance. B. The Court failed to recognize the necessity for a roadway wider than 15 feet in order to accommodate such lawful uses. C. The Court erred in failing to find that the word "roadway" was intended by the parties and/or should be construed as a ma.tter of law to mean a public road. D. The Court erred in not requiring the location of said easement at a place approvable by the Pennsylvania Department of Transportation which could be at a location other than along the Defendants' southern property line. E. The Court's decision unlawfully limits the Plaintiffs' use of their land which is tantamount to an unlawful taking or confiscation of property. F. The Court erred in fixing the width of the roadway at fifteen (15) feet without standards, evidence or authority. G. The Court erred in failing to find that the area of land sought by Plaintiffs for a 50- foot roadway is unimproved and unobstructed by any development by Defendants. H. The Court erred in failing to find that the parties to the reservation in issue intended the reserved easement to be used for any lawful purpose, including, but not LAW OFFICES SNELBAKER. BRENNEMAN & SPARE limited to, the development of a public roadway. 6 II LAW OFFICES SNELBAKER. BRENNEMAN & SPARE I. The Court erred in admitting evidence of other roads unrelated to the present case, particularly Defendants' Exhibits 5 :and 6 and testimony relating thereto, said evidence being irrelevant, prejudicial and inadmissible. WHEREFORE, Plaintiffs respectfully request th<:: Court to reverse its Decree Nisi and conclude that Plaintiffs are entitled to a public roadway 50 feet in width along the southern side of Defendants' land at a point of intersection with Pa. Route 34 which will be approved by Pennsylvania Department of Transportation. SNELBAAABRENNEMAN & SPARE, P.e. By ~ttk - . d C. Snelbaker, EsqUIre Pa. Supreme Court I.D. #06355 44 Vvest Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Plaintiffs 7 l~ LAW OFFICES SNELBAKER. BRENNEMAN & SPARE CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true lmd correct copy of the foregoing Plaintiffs' Exceptions to Decree Nisi upon the attorney tl)r Defendants and in the manner indicated below: FIRST CLASS MAIL. POST AGE PREP AID. ADDRESSED AS FOLLOWS: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 .~ . Snelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiffs Dated: October A~, 2002 8 l~ (') ~ ~m 2""::: 2.:(' ~} .~~.~ ~ -".' :>c~ .::...,. -"1 -<; C1 l"0 o ('"") ....., N <-.n ("""\ -"^fJ --~ , ;] ;;D ,O!! ::"J ':;) -;iJ --:-.'~) .. . ~ 1 ...._~ -.-J 55 -, .."t-, _'oi.. , JAMES M. KELLER AND ELAINE N. KELLER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. BARRY L. SHEALER AND : NO. 2001-0771 CIVIL TERM MARLENE A. SHEALER ORDER OF COURT AND NOW, this 31 ST day of OCTOBER, 2002, plaintiffs' exceptions to our Decree Nisi of October 16,2002, are GRANTED in part and DENIED in part. They are granted insofar as our finding of fact that "Plaintiff Marlene A. Shealer is the great granddaughter of George W. Paxton" was in error. Said finding of fact is amended to provide that "Plaintiff Elaine N. Keller is the great granddaughter of George W. Paxton." In all other respects, plaintiffs' exceptions are denied. Our Decree Nisi of October 16,2002, is FINAL. Edward E. Guido, J. Richard e. Snelbaker, Esquire For the Plaintiffs Hubert X. Gilroy, Esquire For the Defendants . Co.~' ~ / ()/ 31,O.J-. ~. :sld rD ~~ '- '- ~ "'-\ '- "'-..I ~ ~ ~ ~ ~ ~ ~ -$ ~ 't 1J ~\ ~ t VINV;\lASNN3d I I "'('(""~'I iT i' r1!--Il'~:;\lnl'"\ I\LJ'J Jt)~~) t.:\ri :'.:_.',J"](ll IJ L S :2 Hd i S IJO 20 AtI71C,t;",JC:;'-'.;"c.'~)~_':-i ~_~ =0 3Jlj.:~Cr,{]:'j';i:J . LAW OFFICES SNELBAKER, BRENNEMAN & SPARE JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs vs. BARRY L. SHEALER and MARLENE A. SHEALER, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO: 01-771 CIVIL TERM CIVIL ACTION - LAW NOTICE OF APPEAL NOTICE is hereby given that James M. Keller ~md Elaine N. Keller, Plaintiffs above named, hereby appeal to the Superior Court of Pennsylvania, from the Order of Court entered in this matter on October 31, 2002. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Dated: November 14, 2002 By Richard C. Snelbaker, Esquire Attorney Registration No: 06355 44 West Main Street P.O. Box 318 Mechanic:sburg, P A 17055-0318 (717) 697-8528 Attorneys for Plaintiffs ~{ PYS510 Cumberland County Prothonotarv's Office Civil Case Inquiry.' Page 1 2001-00771 KELLER JAMES M ET AL (vs) SHEALER BARRY L ET AL Reference No.. : Case Type.....: COMPLAINT Judgment...... .00 J~dge Assigned: GUIDO EDWARD E Dlsposed Desc. : ------------ Case Comments ------------- Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 2/08/2001 11:25 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info KELLER JAMES M 722 DOGWOOD TERRACE BOILING SPRINGS PA 17007 KELLER ELAINE N 722 DOGWOOD TERRACE BOILING SPRINGS PA 17007 SHEALER BARRY L 4247 CARLISLE ROAD GARDNERS PA 17324 SHEALER MARLENE A 4247 CARLISLE ROAD GARDNERS PA 17324 PLAINTIFF SNELBAKER RICHARD C PLAINTIFF SNELBAKER RICHARD C DEFENDANT DEFENDANT Amount Date 10/17/2002 10/17/2002 10/31/2002 10/31/2002 Desc Judgment Index SHEALER BARRY L SHEALER MARLENE A SHEALER BARRY L SHEALER MARLENE A DECREE NISI DECREE NISI FINAL DECREE FINAL DECREE ******************************************************************************** * Date Entries * ******************************************************************************** 2/08/2001 2/28/2001 2/28/2001 3/29/2001 4/23/2001 4/23/2001 5/02/2001 4/09/2002 4/15/2002 4/19/2002 _ _ - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT - CIVIL ACTION ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant.: SHEALER BARRY L SERVED : 2/26/01 GARDNERS PA COMPLAINT HANDING TO MARLENE A SH : SHEALER Costs....: $34.82 pd By: SNELBAKER, BRENNEMAN & SPARE 02/28/2001 ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant.: SHEALER MARLENE A SERVED : 2/26/01 GARDNERS PA COMPLAINT Costs....: $16.00 pd By: SNELBAKER, BRENNEMAN & SPARE 02/28/2001 ------------------------------------------------------------------- ANSWER TO COMPLAINT AND NEW MATTER - BY HUBERT X GILROY ESQ FOR DEFTS ------------------------------------------------------------------- STIPULATION TO ALLOW DEFTS TO FILE AN AMENDED ANSWER AND NEW MATTER RICHARD C SNELBAKER AND HUBERT X GILROY --------------------------------------.----------------------------- AMENDED ANSWER TO COMPLAINT AND NEW MPlTTER - HUBERT X GILROY ATTY FOR DEFT --------------------------------------.----------------------------- REPLY TO NEW MATTER - RICHARD C SNELBJlKER ATTY FOR PLFF --------------------------------------.----------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL - BY RICHARD C SNELBAKER ESQ FOR PLFFS --------------------------------------.----------------------------- ORDER OF COURT - DATED 4/15/02 - A PRETRIAL CONFERENCE IS SCHEDULED FOR 5/3/02 AT 11:30 AM IN C}rnMBERS OF THE UNDERSIGNED IN CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT EDWARD E GUIDO J COPIES MAILED 4/15/02 -------------------------------------------------------------------- ORDER COURT - 4/18/02 THE PRETRIAL CONFERENCE SCHEDULED FOR 5/3/02 IS RESCHEDULED FOR 5/08/02 AT 9: 30 A IV! EDWARD E GUIDO JUDGE COPIES MAILED 4/19/02 ~~ PYS510 Cumberland County Prot0onotary's Office Civil Case Inqulry Page 2 2001-00771 KELLER JAMES M ET AL (vs) SHEALER BARRY L ET AL 7/18/2002 7/19/2002 7/30/2002 Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: --------------------------------------'----------------------------- PRETRIAL CONFERENCE - DATED 5/8/02 - BY EDWARD E GUIDO J - COPIES MAILED 5/14/02 ------------------------------------------------------------------- MOTION IN LIMINE - HUBERT X GILROY ESQ FOR DEFTS ------------------------------------------------------------------- PLAINTIFFS' MOTION IN LIMINE BY RICHARD C SNELBAKER ATTY FOR PLFFS ------------------------------------------------------------------- ORDER OF COURT - DATED 7/29/02 - THE P.~RTIES ARE DIRECTED TO FILE MEMORANDUM OF LAW IN SUPPORT OF THEIR RESPECTIVE POSITIONS BY 8/12/02 THE PARTIES ARE GIVEN UNTIL 8/19 TO FILE RESPONSIVE BRIEFS IF THEY SO DESIRE - BY THE COURT EDWARD E GUIDO J COPIES MAILED 7/30/02 ------------------------------------------------------------------- DECREE NISI - IN RE: LAND EASEMENT DICKINSON TOWNSHIP - DATED OCTOBER 16, 2002 - IT IS ORDERED AND DECREED THAT THE PLAINTIFFS THEIR HEIRS AND ASSIGNS HAVE A PERPETUAL 15 FOOT WIDE EASEMENT FOR PURPOSES OF INGRESS AND EGRESS TO PENNSYLVANIA ROUTE 34 SAID EASEEMNT IS APPURTENANT TO THE LAND DESCRIBED IN CUMBERLAND COUNTY DEED BOOK 127 PAGE 1160 AND RUNS ACROSS THE LAND OF DEFENDANTS AS DESCRIBED IN CUMBERLAND COUNTY DEED BOOK 216 PAGES 428 THIS DECREE SHALL BECOME FINAL UNLESS EITHER PARTY FILES EXCEPTIONS WITHIN 10 DAYS BY THE COURT EDWARD E GUIDO J 2/08/2001 11:25 0/00/0000 0/00/0000 Reference No.. : Case Type.....: COMPLAINT Judgment...... .00 Judge Assigned: GUIDO EDWARD E Disposed Desc. : ------------ Case Comments ------------- 5/14/2002 10/17/2002 NOTICE MAILED -------------------------,------------------------------------------ 10/25/2002 10/31/2002 PLAINTIFF'S EXCEPTIONS TO DECREE NISI ------------------------------------------------------------------- ORDER OF COURT - DATED OCTOBER 31, 2002 - PLAINTIFFS' EXCEPTIONS TO OUR DECREE NISI OF OCTOBER 16, 2002 ARE GRANTED IN PART AND DENIED IN PART PLAINTIFFS' EXCEPTIONS ARE DENIED OUR DECREE NISI OF OCTOBER 16, 2002 IS FINAL BY THE COURT EDWA.RD E GUIDO J COPIES MAILED 10-31-02 _ _ _ _ - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal pymts/Adl End Bal * ******************************************************************************** COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE JDMT 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 9.00 9.00 .00 ------------------------ ------------ 54.50 54.50 .00 *************************************************~,****************************** * End of Case Information * *************************************************~,****************************** TRUE COpy PROM RECORD 1'1 Testimony whereof. I here unto sat my hand .:" 'il} the of so.':d at CarnSle~ Pa., ) illis day ~OO~ S~ JAMES M. KELLER and ELAINE N. KELLER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO: 01-771 CIVIL TERM vs. : CIVIL ACTION - LAW BARRY L. SHEALER and MARLENE A. SHEALER, Defendants REOUEST FOR TRANSCRIPT PURSUANT TO PA. R.A.P. 1911 TO: Official Court Reporter Cumberland County Court of Common Pleas A Notice of Appeal having been filed in this matter, the Official Court Reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. . ard C. Snelbaker, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Plaintiffs Dated: November 14 , 2002 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE <64-- CERTIFICATE OF SERVICE I hereby certify that I am this day serving the fon~going Notice of Appeal and Request for Transcript Pursuant to Pa. R.A.P. 1911 upon the persons and in the manner indicated below, which service satisfies the requirement ofPa. R.A.P. 121: SERVICE BY FIRST -CLASS MAIL (POSTPAID) ADDRESSED AS FOLLOWS: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.e. 4 North Hanover Street Carlisle, P A 17013 (Attorney for Defendants, Barry L. and Marlene A. Shealer) Honorable Edward E. Guido Cumberland County Court House One Court House Square Carlisle, PA 17013 Official Court Reporter Cumberland COurLty Court House One Court House Square Carlisle, P A 1 c ard C. Snelbaker, Esquire Attorney Registration No: 06355 Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 M,echanicsburg, PA 17055-0318 Attorneys for James M. and Elaine N. Keller Dated: November 14, 2002. LAW OFFICES SNELBAKER. BRENNEMAN & SPARE ~5- ~),~ ~- ~ 2{ - v." - -:J ~'. -JU --.J ~}\., 9 ~ () ~~: ..:;~,,," '"'t..i i~" ~.~~] c; ." L (;~'i C) "~"'.? (") .1 c:) .. , I :''J u.:' :u -< 1:23 P.M. ,- 01 l11 Superior Court of Pennsylvania Appeal Docket Sheet Docket Number: 1774 MDA 2002 Page 1 of 2 November 18,2002 ~ James M. & Elaine N. Keller v. Barry L. Shealer, etux, Appellee Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: November 18, 2002 Journal Number: Case Category: Civil Awaiting Ori!~inal Record CaseType: Related Docket Nos.: Consolidated Docket Nos.: SCHEDULED EVENT Next Event Due Date: December 2, 2002 Next Event Due Dat Next Event Type: Docketing Statement Received Next Event Type: Original Record Received Appellant Pro Se: IFP Status: Appellee Pro Se: IFP Status: COUNSEL INFORMATION Keller, James M. & Elaine N. Appoint Counsel Status: No Appellant Attorney Information: Attorney: Snelbaker, Richard C. Bar No.: 06355 Law Firm: Snelbaker, Brenneman & Spare, P.C. Address: Snelbaker Brenneman & Spare 44 W Main Street Mechanicsburg, PA 17055-6249 Phone No.: (717)697-8528 Fax No.: (717)697-7681 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Shealer, etux, Barry L. Appoint Counsel Status: Appellee Attorney Information: Attorney: Gilroy, Hubert Xavier Bar No.: 29943 Law Firm: Broujos & Gilroy, P.C. Address: Broujos & Gilroy PC 4 N. Hanover Street Carlisle, PA 17013 Phone No.: (717)243-4574 Fax No.: (717)243-8227 Receive Mail: Yes E-Mail Address: Receive E-Mail: No 11/18/02 3023 rc' I. superior Court of Pennsy'vania . .". ~ · Docket Sheet it Number: 1774 MDA 2002 ;e2of2 ;)vember 18, 2002 FEE INFORMATION Fee Date 11/14/02 Fee Name Notice of Appeal Fee Amt 60.00 Paid Amount 60.00 Receipt Number 2002SPRMD001064 TRIAL COURTIAGENCY INFORMATION Court Below: cumberland County Court of Common Pleas County: Cumberland Date of Order Appealed From: October 31. 2002 Date Documents Received: November 15. 2002 Order Type: Order Entered Division: Civil Judicial District: 9 Date Notice of Appeal Filed: November 14. 2002 OTN: Lower Court Docket No.: 01-771 CIVIL TERM Judge: Guido. Edward E. Judge ORIGINAL RECORD CONTENTS Filed Date content/Description Original Record Item Date of Remand of Record: BRIEFS Filed Date DOCKET ENTRIES Docket Entry/Document Name Party Type Filed By November 18. 2002 Notice of Appeal Filed Appellant Keller, James M. & Elaine N. November 18,2002 Docketing Statement Exited (Civil) Middle District Filing Office 3023 ~ 11/18102 5j "' ~ Q.' t: .... .... J1 Q. a--s ~QO e lit' '~ Q.~ ~', "'-.,..., 1"\3 " (:"' r\) JAMES M. KELLER and ELAINE N. KELLER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. BARRY L. SHEALER and MARLENE A. SHEALER, Defendants 01-0771 CIVIL TERM TRANSCRIPT OF PROCEEDINGS NONJURY TRIAL Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania on Monday, July 29, 2002, in Courtroom No. ~) APPEARANCES: RICHARD C. SNELBAKER, Esquire For the Plaintiffs HUBERT X. GILROY, Esquire For the Defendants 1 \~ INDEX TO WITNESSEEl FOR THE PLAINTIFF DIRECT CROSS REDIRECT RECROSS James M. Keller 8 15 FOR THE DEFENDANT Marlene A. Shealer 19 27 Nevin J. Baird 30 Ronald C. Wolfe 36 39 40 2 ~1 INDEX TO EXHIBITS FOR THE PLAINTIFFS IDENTIFIED ADMITTED 1 - Legal description of 6 8 Plaintiffs' land 2 - Chain of title to 7 8 Plaintiffs' land 3 - Legal description of 7 8 Defendants' land 4 - Chain of title to 7 8 Defendants' land 5 - Photocopy of deed, 7 8 Sellers to Paxton 6 - Adverse No. 1 7 8 7 - Adverse No. 2 7 8 8 - Adverse No. 3 8 8 9 - Zoning Ordinance for 10 11 Dickinson Township 10 - Subdivision and Land 11 12 Development Ordinance 11 - PennDOT regulations 13 18 FOR THE DEFENDANT 1 - Two photographs (A and B) 19 41 2 - Photograph 21 41 3 - Two photographs (A and B) 22 41 4 - Two photographs (A and B) 22 41 5 - Deed dated 12/7/33, 31 41 Munro to Weaver 6 - Deed dated 9/26/30, 33 41 Croman to Keller 7 - Declaration of easement 34 3 TO 1 THE COURT: With regard to the motions in 2 limine, I'm going to allow all of the proffered evidence on 3 both sides, both the current subdivision ordinance, PennDOT 4 regulations. I think it's relevant to determine the use of 5 the property today and the parol evidence. 1111 take a look 6 at what the other prior right-of-ways are, for whatever it's 7 worth. 8 I'm familiar with the issues. If counsel 9 wish to make brief opening statements, 1111 certainly allow 10 that. 11 MR. SNELBAKER: I think that we're all 12 agreed that there is an existing easement roadway. The 13 question is how wide is it, what may it be used for, to be 14 located on the southern side of the Defendants' property. 15 16 MR. GILROY: That's correct, Judge. THE COURT: Do I understand that this is an 17 action for declaratory -- it's at law? 18 MR. SNELBAKER: Itls at law and in equity. 19 It's to quiet title and to enjoin -- actually, to seek 20 relief. The second count is equitable. Page 4 of the 21 complaint, Judge, is to confirm the right of usage. Then in 22 equity is to permit it. 23 MR. GILROY: The equitable complaint, Judge, 24 was in the alternative. As I understood it, the original 25 claim was we have an easement and we want to use it. Then 4 qt 1 in the alternative, if we don't have an easement, it was 2 alleged that the property is landlocked. And under equity, 3 they're entitled to access. 4 THE COURT: But there's no question that the 5 easement exists. 6 MR. SNELBAKER: That's correct. 7 MR. GILROY: That's correct. 8 THE COURT: In effect, this is an action at 9 law for enforcement of the contract. 10 MR. SNELBAKER: I think that's -- well, 11 there is no contract. We're enforcing either the express 12 reservation or easement by necessity. They both are equally 13 applicable here. 14 MR. GILROY: I would disagree, Judge. We've 15 admitted that there is an easement, so they're enforcing the 16 easement that they have. 17 THE COURT: The easement by necessity is 18 only where none otherwise exists. 19 MR. SNELBAKER: Yes, but that's -- if there 20 is a denial, they denied that this other thing exists, too. 21 MR. GILROY: In our pretrials we admitted, 22 Judge -- and I understood that the second issue was off the 23 table, the easement by necessity, and we"re only interpreting 24 the easement that's in existence and what the width of it is. 25 THE COURT: It's not in dispute there's an 5 q~ 1 express grant of an easement? 2 MR. SNELBAKER: That's correct. 3 THE COURT: So that we don't have an 4 easement by necessity. It's there. So I just have to 5 interpret that. 6 MR. SNELBAKER: I agree with that, except 7 that it arises out of necessity, we pled it, and it was 8 denied at that time. It's in the pleadings. 9 THE COURT: It's in the pleadings, but 10 that -- it only arises out of necessity if it's not expressly 11 there. Everybody agrees that it's expressly there, so 11m 12 not going to get into addressing 13 MR. SNELBAKER: We don't need it. 14 THE COURT: Good. We're on the same 15 wavelength. Go ahead. 16 MR. SNELBAKER: I have a number of exhibits 17 which have been already admitted in the pleadings. I'm just 18 doing this for the convenience of the Court so that we, 19 indeed, have these documents in front of us. lIve given a 20 whole package to Mr. Gilroy. The first one is a legal 21 description of the Plaintiffs' land. Do you want me to hand these to you? 22 23 24 Plaintiffs' 1. THE COURT: Yes. We'll call this 25 MR. SNELBAKER: It's marked. 6 93 1 2 Judge. 3 MR. SNELBAKER: Exhibit 2 is a chain of MR. GILROY: And that's stipulated to, 4 title to the Plaintiffs' land. That was likewise admitted. 5 MR. GILROY: That's stipulated to, Judge. 6 MR. SNELBAKER: Exhibit 3 is the legal 7 description of the Defendants' land. 8 MR. GILROY: Stipulated to, Judge. 9 MR. SNELBAKER: Exhibit 4 is the chain of 10 title to the Defendants I land. 11 MR. GILROY: Stipulated to, Judge. 12 MR. SNELBAKER: No. 5 is a copy of the deed 13 from the Recorder's Office from which this original property 14 devolved. This is Sellers to Paxton. This is sort of the 15 grandfather of everything that's involved here. 16 17 MR. GILROY: Stipulated to, Judge. MR. SNELBAKER: No. 6 is one of three 18 adversus by Mr. Paxton, and this is to Starner. This is 19 Exhibit 6. 20 MR. GILROY: Stipulated to, Judge. 21 22 23 THE COURT: 6 is one out parcel from 5, is that correct? MR. SNELBAKER: That is correct, one of 24 three. Exhibit 7 is the second adverse. 25 MR. GILROY: Stipulated to, Judge. 7 qif 1 MR. SNELBAKER: Exhibit 8 is the third and 2 last, which is the part which contains the so-called express 3 reservation and is part of the Defendants' land. 4 MR. GILROY: Stipulated to, also, Judge. 5 THE COURT: The reservation, can we agree, 6 for ease -- how large is the tract? 7 MR. GILROY: Defendants' property, Judge, 8 fronts on Route 34 238 feet and has a depth of 325 feet, I 9 believe. 10 MR. SNELBAKER: I calculated that out at one 11 point, but I don' t remember what it was in terms of acreage. 12 But the Plaintiffs' land is on Exhibit I, which is 11.1563 13 acres. 14 MR. GILROY: My figures come from 15 Plaintiffs' Exhibit 3. 16 THE COURT: Okay. Are we ready to proceed? 17 MR. SNELBAKER: Yes. 18 19 20 21 22 THE COURT: Exhibits 1 t.hrough 8 are admitted. (Plaintiffs' Exhibit Nos. 1 through 8 were admitted. ) JAMES M. KELLER, 23 having been duly sworn, testified as follows: 24 DIRECT EXAMINATION 25 BY MR. SNELBAKER: 8 q~ 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 Give us your name and address, please. James M. Keller, 722 Do<:)"wood Terrace, Q A 3 Boiling Springs. Q A Q A Q A Are you one of the Plaintiffs in this case? Yes. Who is the other Plaintiff? My wife, Elaine N. Keller. Is she seated at counsel table presently? Yes. Q It's been indicated that the chain of title vests 11 plus acres in you and your wife's ownership, is that correct? A Yes. Q This land, what do you want to do with it? A We want to develop it into lots. Q For sale? A Yes. Q Have you done research into what is required in order to do such lots? A Yes. Q Let me show you -- THE COURT: Excuse me. Let me just back up. Is there anything on this land now? THE WITNESS: No. It's just forest. THE COURT: Just wooded land? 9 Cj~ 1 THE WITNESS: Wooded land, yes. 2 BY MR. SNELBAKER: 3 Q I'm going to show you what I've marked as 4 Plaintiffs' Exhibit 9 and ask you whether you, in fact, 5 procured that for us? 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Yes. What is that? A Q A Zoning ordinance for Dickinson Township. Q Let me show you the map that's attached to this which establishes districts. I'm going to ask you whether or not you can locate your land on this map? A Yes, I can. Q In what district is it located? A The type? Q Yes. A It's LDR. Q LDR is what? A Low Density Residential. Q Let me show you in the ordinance, in the 20 text of the ordinance, the general use regulations for the 21 Low Density Residential District at Page 111-5. Do you see 22 them? 23 24 25 lot size? A Q Yes. Under this ordinance, what is the minimum 10 q7 1 2 A Q Forty thousand square feet. Turning to Page IV-22, when one develops a 3 right-of-way as they call it here, whether it be private or 4 public, where does one have to go, according to Section 4.13? 5 A He has to refer to the, I guess, Dickinson 6 Township Subdivision Plan. 7 8 9 10 11 Q A Q A Subdivision and Land Development Ordinance? Right. Is that what it says? Yes. MR. SNELBAKER: I'm going to move for the 12 admission of Exhibit 9. 13 14 MR. GILROY: No objection, Judge. THE COURT: It's admitted. 15 (Plaintiffs' Exhibit No.9 was admitted.) 16 BY MR. SNELBAKER: 17 Q Let me show you what has been previously 18 marked as Plaintiffs' Exhibit 10 and ask you whether you're 19 familiar with this particular document? 20 21 22 23 A Q A Q Yes. I bought one of those a few years ago. What is this? Subdivision and Land Development Ordinance. Does it have in it requirements for 24 development of streets and roads? 25 A Yes. 11 q~ 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Q Referring to the book -- and I'm indicating a section -- can you tell me whether or not the preliminary plan requirements at least direct how streets are to be laid out and shown? A Yes. Q Does it require anything from the Commonwealth of Pennsylvania? A It requires approval for entrance onto the state highway. Q And at Section 6.13 the:r-e are several pages here that deal with planning and construction requirements, am I correct? A Yes. MR. SNELBAKER: I'm going to move for 15 admission of Plaintiffs' Exhibit 10. 16 17 MR. GILROY: No objection, Judge. THE COURT: Exhibit 10 is admitted. 18 (Plaintiffs' Exhibit No. 10 was admitted.) 19 BY MR. SNELBAKER: 20 Q Mr. Keller, the property that you own is 21 near a public road. What public road is that? A Q A Q Route 34. That runs from where to where? Basically, Carlisle to Gettysburg. In some of these old deeds it's mentioned as 12 11 1 2 3 4 5 the Gettysburg Road. Is that the same road? A Yes. Q Whose jurisdiction is that under that road? A Q State Highway Department. Based upon the State Highway Department's 6 jurisdiction, have they, as the state, developed regulations 7 for connection of streets and roads to it? 8 9 Yes, they have. Let me show you what I've marked as A Q 10 Plaintiffs' Exhibit No. 11 and ask you whether you're 11 familiar with this document as it's constituted? 12 A Yes, I saw a copy of this. 13 Q Are they the PennDOT regulations, 14 Pennsylvania Department of Transportation regulations, 15 governing intersections of ways, driveways, roads and so 16 forth, with state highways? 17 18 19 20 21 22 23 24 25 A Yes. Q If you owned 11 acres plus land, and 40,000 square feet is the minimum building lot in Dickinson Township in this zoning district, approximately how many lots could you develop in that area? A I assume around seven. Q Based upon your knowledge of the regulations, in order to have a subdivision of seven lots, is a public road required? 13 100 1 2 A Q Yes. According to the regulations of the township 3 - - and they are all contained in these documents that we've 4 provided the Court -- in order to get started on it, what is 5 the width for a public road in order to serve such a 6 subdivision? 7 A Fifty feet. 8 Q Have you or is this the amount of width for 9 which you would seek a definition by this Court today? 10 11 12 13 14 15 16 A Q Yes. Your ownership of the Plaintiffs' land, as it's called, did you purchase it? A Yes. It followed her family's inheritance 21 22 23 24 25 BY MR. GILROY: Q down to her. Q A Meaning Mrs. Keller? Yes. Her inheritance was to her and her 17 brother, and she chose to keep the land rather than to 18 dispose of it. 19 Q George Paxton, who is the original 20 subdivider here, was he a relative of your wife? A Great grandfather. MR. SNELBAKER: Cross-examine. CROSS-EXAMINATION Mr. Keller, you're suggesting that you want 14 tol 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 to subdivide this parcel and that's why you need 50 feet? A Yes. Q You'll agree that if you didn't want to subdivide the parcel, only if you wanted to use the parcel yourself for hunting or a cabin or even a private home, that you would not need 50 feet in width? MR. SNELBAKER: I'm going to object to that on the basis that it would be speculative. THE COURT: Overruled. THE WITNESS: I don't want to restrict the use of my property from future development. BY MR. GILROY: Q I know what you want to do, sir, but you'll agree that if you just wanted to maintain this property as a single-family residence or just as a hunting cabin or just as a wooded area for your own personal use you would not need a 50 foot right-of-way, isn't that correct? A I assume I don't. THE COURT: Well, do the ordinances that 20 Mr. Snelbaker has admitted into evidence set forth those 21 requirements? 22 23 24 to me. 25 MR. GILROY: I believe they do, Judge. THE COURT: If somebody could point them out MR. SNELBAKER: They're all part of where we 15 I () d.. 1 are. I think Mr. Gilroy is correct, that it's not necessary 2 to have a 50 foot driveway, if that's all that it is, a 3 driveway. 4 THE COURT: In other words, do you know, 5 sir, if you wanted to just put a single-family home on there 6 and you wanted to live on that tract how big a right-of-way 7 would you need under those subdivision ordinances? 8 THE WITNESS: I believe -- I was under the 9 assumption that it would be 40 feet required. 10 11 THE COURT: Do counsel agree on that? MR. GILROY: Judge, we don't agree on that. 12 Our position is -- we'll have a witness to the effect from 13 the township who will say -- 14 THE COURT: If you're going to have a 15 witness, that's fine. 16 MR. GILROY: Okay. 17 MR. SNELBAKER: The ordinance specifies that 18 there are some limited circumstances where a subdivision can 19 be permitted with 40 feet. Otherwise, it's a public road at 20 50 feet. 21 BY MR. GILROY: 22 Q Mr. Keller, do you understand that if you 23 wanted to dedicate this road to the public that the property 24 owner who owns the road would have to join in that 25 dedication? 16 /01 1 2 legal matter. 3 4 5 BY MR. GILROY: 6 MR. SNELBAKER: I'm going to object to that THE COURT: Overruled. THE WITNESS: I don't know. Q You don't have any agreement with the 7 Shealers, who own the land where the right-of-way is over, 8 you don't have any agreement with them that they would 9 dedicate a 50 foot right-of-way to the public for a public 10 road, do you? 11 12 13 14 15 16 17 A No, I don't. MR. GILROY: No further questions, Judge. THE COURT: Any redirect, Mr. Snelbaker? MR. SNELBAKER: No, Your Honor, I don't. THE COURT: Thank you, sir. THE WITNESS: Thank you.. THE COURT: Any other witnesses, Mr. 18 Snelbaker? 19 MR. SNELBAKER: No, Your Honor. I move for 20 the admission of all of my exhibits and _u 21 THE COURT: Do I have 1 through 11? 22 MR. SNELBAKER: There's 11. 23 THE COURT: Exhibit 9 is the zoning 24 ordinance, 10 is the subdivision that ended up in the 25 ordinance, and 11 is part of the PennDOT regulations. They 17 /{J-/ 18 19 20 21 1 2 3 4 5 6 7 8 9 10 11 are all admitted. (Plaintiffs' Exhibit No. 11 was admitted.) THE COURT: Mr. Gilroy. MR. GILROY: Call Mrs. Shealer. MARLENE A. SHEALER having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. GILROY: Q Ma'am, would you please state your full name and address for the record. A Marlene Shealer, and we're at 4247 Carlisle 12 Road, Gardners. 13 You and your husband are the Defendants in Q 14 this particular action, is that correct? 15 16 A Q Yes. How long have you lived at that property? 17 You are the owners of the land which is in dispute, correct? A Q Yes. Your property fronts right on Pennsylvania Route 34? A Yes. We've lived there since March 1st. We 22 signed the papers in February. I guess the title was in 23 24 25 January. Q Where do you work, ma'am? MR. SNELBAKER: What year? 18 {oS 1 2 3 MR. GILROY: 2000. THE WITNESS: 2000. BY MR. GILROY: 4 Q Where do you work? 5 A At Scales of Central Pennsylvania here in 6 Carlisle on Douglas Drive. 7 Q And your husband? 8 9 A For Hempt Brothers Construction in Locust Point. 10 Q I want to show you a number of photographs. 11 Defendants' Exhibit No. I, ma'am, is two photographs. First, 12 before describing the photographs, would you tell the Court 13 what is physically located on your property? 14 A Okay. We have a shop. It used to be an old 15 garage/gas station and a grocery store or something at one 16 time. It's a ceramic shop now. 17 18 19 20 Q Do you run that ceramic shop? A Yeah. I have a -- it's a part-time business because I work full time. I have ceramic molds and slip and -- I teach classes in there, ceramic classes, to 4-H and 21 Brownies and Girl Scouts and groups that I can. I make the 22 product right there and clean it and fire it. I have 23 finished pieces in there, also. 24 Q In pointing out Defendants' Exhibit No.1, 25 which has two pictures marked A and B, you're pointing to A, 19 loft; 1 is that correct? 2 A Yeah, the big white building. 3 Q These pictures were taken, at least that 4 exhibit, were taken in the fall of 2001, is that right? 5 6 7 A Q A Yes. What else does that picture show? It shows our house in the back. It's 8 yellow, a ranch house, up on the bank. 9 Q How big is that house, how many bedrooms? 10 11 12 13 14 A About 60 feet long. It's supposed to be four bedrooms, but we don't use four bedrooms. Q What else is on the property? A Then there's a big parking lot, you know, where we have our -- the camper was there. Now it's over on 15 this side so the grandkids can use it. We built a garage on, 16 because in the winter -- the first winter we were there, in 17 March, the snow blew over the top of the buildings and landed 18 right on the other side of the house. I had to dig out my 19 car every time I went to go to work at night. I work from 11 20 at night until 7 in the morning. 21 Q Mrs. Shealer, the garage in this photograph 22 is under construction, is that right? 23 24 25 garage? A Q Yeah. When did you start plans to construct the 20 I ()7 1 A In April we had a guy come in and tell us 2 how much -- 3 4 5 6 7 8 9 10 11 12 13 14 15 16 you took? Q April of what year, right after you bought the property? A April of 2000, yeah, because we decided right away weld have to have some kind of shelter for my car in order for me to go to work. Q I'm going to show you Defendants' Exhibit NO.2. Can you indicate what that photograph depicts? A That's the property before -- right after we bought it. Q Is that the southern ed3e of your property right after you bought it? A Yeah. That Q Is that -- hold on. Is that a picture that 17 18 19 20 21 22 23 24 25 Yes. That would have been in the spring of 2000, A Q is that right? A Yes. That was taken right at the beginning of -- Q Okay. So if we can hold the two exhibits up, the trees shown in Exhibit 2 are actually on the southern side, which is now cleared on the pictures from Exhibit 1, is that right? 21 ID& 1 2 3 4 5 6 7 8 9 A Yeah. Otherwise it's down here where the dirt is. Q You and your husband paid to have those trees taken out? A Yes. Q And that clearing started shortly after you bought the property? A Q Yes, at the end of April. With the intention of requesting to 10 construct a garage? 11 A Yes. We had to have a swell building there 12 because the property would flood. 13 Q I'll show you what has been marked as 14 Defendants' Exhibit No.3. Are these just two photographs of 15 16 your property? A Yes. That's after we had the work done on 17 it, after the trees were removed and dirt. 18 Q All of the southern portion of your property 19 is without trees at this point, is that right? 20 A Well, we planted some little trees back in 21 there, some maple trees, because 11m allergic to the pine 22 trees. We had to take them down because I was sick all the 23 time from the pine trees being there. 11m allergic to pine. 24 Q Defendants' Exhibit No.4, does that depict 25 a view looking north on Route 34 on your property and a view 22 [oq 1 2 3 4 5 6 7 8 9 10 11 12 looking south on Route 34 on your property? A Yes. Q The photograph marked A is looking to the north and the photograph marked B is looking to the south, is that right? A Yes. Q When you bought the property, did you understand that there was an easement or right-of-way over it? A Well, we understood there was an easement, but we were told by the lawyer at the time and the Realtor that it was a dead deed because it had not been used in over 13 21 years. Back in 1921 or 1924, when it was put into the 14 deed, it had never been used and 15 16 did I? 17 18 19 20 I didn't represent you at that transaction, Q A No. Q Since retaining me, you've begrudgingly acknowledged that there is a right-of-way over the property, is that fair? 21 22 Yeah, for hardship or -- You've agreed that it's on the southern side A Q 23 of the property? 24 25 Yes, that's where it's on the deed. You understand that the Kellers would like a A Q 23 110 1 2 3 4 50 foot right-of-way, is that right? A Yes. Q A Is this what you understand? Yes. 5 Q You are suggesting the right-of-way should 6 be 12 to 15 feet? 7 A Yes. 8 Q What difference to you does a 12 to 15 foot 9 right-of-way mean as compared to a 50 foot right-of-way with 10 respect to your and your husband's use of the property? 11 A Well, the 50 foot right-of-way would take 12 over a half of the property there, and they would have the 13 road down close to where our garage is. I have congestive 14 heart failure, so my grandchildren need to play next door to 15 us where they're safe away from the road, you know, and they 16 won't have harm corne to them. 17 18 19 20 21 22 23 24 25 How do you use the southern side of your Q property right now? A That's where my grandchildren play and where I have a garden out there, and I've got a fish fond, a pool. So I have a little garden where I can go out there and sit, you know, and watch the children and know that they're safe without -- Q How many grandchildren do you have? A I have eight grandchildren and fourteen 24 ilL 1 great nieces and nephews. 2 Q Do you have any concern with respect to the 3 kids playing out in the front of your property along Route 34? 4 A Yes. The tractor-trailer traffic is really 5 bad along there because of, you know, the factories up and 6 down the -- 7 MR. SNELBAKER: I'm going to object to this 8 line of questioning as to -- 9 10 11 THE WITNESS: And people -- MR. GILROY: Wait, ma'am. THE COURT: Hold on. When there's an 12 objection, you must stop. 13 MR. SNELBAKER: -- dealing with the use 14 since they moved in. 15 16 BY MR. GILROY: THE COURT: Overruled. 17 Q Do you have any other concerns with respect 18 to what impact on you and your husband, as far as the value 19 of the property, if the Court grants a 50 foot right-of-way 20 as compared to a 15 foot right-of-way? 21 A Well, there will be a lot of dirt and a lot 22 of mess out there because people always throw things out. We 23 wouldn't have any privacy left. The value of our property 24 will go way down. 25 Q Did you say the value? 25 ill 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 A Yes. The value of our property will be 2 reduced we were told. 3 MR. SNELBAKER: I'm going to object to what 4 she -- 5 6 told. 7 8 MR. GILROY: You can't say what you were THE COURT: Sustained. BY MR. GILROY: You believe it will be reduced? Yes, we believe it will be. MR. GILROY: No further questions. THE COURT: Mr. Snelbaker. MR. SNELBAKER: Indulge me just a second while I take a look at these pictures. Q A THE WITNESS: Okay. (Brief pause.) CROSS-EXAMINATION BY MR. SNELBAKER: Q Just so the Court understands, Mrs. Shealer, I'm showing you Exhibit 2, which has the pine trees still on it. This is the old picture, right? A Yes. Q A Where is your property line on that? Right there's a stone right here that's 25 the property line that goes right back through here. It 26 It 3 1 comes right along - - there's a fence back here that's 2 Mr. Day's, and it goes at an angle right back through there. 3 Q The property line is, on this picture, to 4 the right of the pines? 5 Yeah, it's right here, this white marker. A 6 It's a stone out there. There's a stone right there on the 7 bank. This bank is about 14, 16 feet hi9h. We had that cut 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 down when we had the property done because the water used to run down the hill real bad. Q Now, that cut that you just mentioned, is that what is shown on Picture B of Defendants' Exhibit 4? A That's right there. That little mark right there is that stone. Q But this shows the cut? A Right at the top where the dirt is, yeah. Q So you did the cutting of that land? A Well, we had it so that the water wouldn't run down the hill on us. They took out ~)O triaxial dump loads of dirt from there. Q Defendants' Exhibit 3 has the -- I guess the garage is what's under construction, is that right? Yeah. That's the building most: to the right of A Q both pictures? A Right. 27 lit/ 1 2 Q When did you start that building? A Well, we started building it after they got 3 the trees down and we could get the 4 5 Q What was the date? A Well, March was when we had the permit. We 6 had the landscaping done before that. 7 8 Q Now, this is March of a year ago, of 2001? A Yes. But we had the trees cut down, and the 9 guy came in with a bulldozer and leveled it out so we could 10 put the garage in there. He had to take big boulders and 11 several -- well, he took 50 triaxial dump loads of dirt out 12 of there in order to flatten it out, because everything was a 13 big hill. 14 15 garage? 16 17 18 19 20 21 Q You said that you got a permit to build the A Right. Q You got that in March of 2001, am I correct? A Yes. Q That would just be a year ago? A Yes. Q Then it was some time after you got the 22 permit that you actually started to put up 23 24 25 A No. We started it then. Q At that point? A Yes. We had already dUSJ the flat part 28 ..- II j 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NEVIN J. BAIRD 23 having been duly sworn, testified as follows: 1 2 3 4 before then. Q A Now, just so that we understand -- We started the -- MR. GILROY: Okay. 5 BY MR. SNELBAKER: 6 7 that was involved? also? Q Strike that preface. Who was the Realtor A Q Daisy Orub and Bill Orub, her son. You said there was an attorney involved, A Yeah. What's his name? MR. SHEALER: Schrack. THE WITNESS: Schrack from over in Dillsburg. If I can tell you THE COURT: Just answer questions. MR. SNELBAKER: That's all. No other questions. THE COURT: Any redirect? MR. GILROY: No. THE COURT: Thank you. MR. GILROY: Call Nevin Baird. 24 DIRECT EXAMINATION 25 BY MR. GILROY: 29 ll~ 1 2 3 4 5 6 7 8 Q Sir, would you please state your full name and address for the record? A Nevin James Baird, 1252 Holly Pike, Carlisle, Pennsylvania. MR. SNELBAKER: Just so there isn1t any question about it, our motions will serve as objections, am I correct, Your Honor? THE COURT: They do. The motions in limine 9 were properly filed, at least in my chanmers. We'll see that 10 they get clocked in. MR. SNELBAKER: Both motions, I believe, 11 12 were clocked. 13 14 BY MR. GILROY: 15 Q Mr. Baird, could you please indicate to the 16 Court your professional background? 17 A I spent 30 years in the United States Army, 18 spent 15 years working with the Department of Welfare with THE COURT: That's a continuing objection. 19 the State of Pennsylvania, and I've now spent approximately 20 seven years working in the Baird Law Office as a paralegal 21 and title searcher. 22 23 24 25 seven years? Q A Q In Cumberland County? Yes, sir. So you've been doing title work for about 30 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Approximately seven yea.rs. Q Were you retained by my office with respect to this particular case to do research a.nd to try to identify various deeds in and around the 1920s, 1930s, as far as widths of right-of-way? A I was. Q A Q Did you make efforts to do that? Yes, I did. How successful were you? A Reasonably successful. I found two specific ones that I have since given you copies of deeds to. Q How easy is it to just go into a Recorder of Deeds' office and just find a right-of-way on a recorded deed? A If you donlt know where you're going to start looking, or if you have no reason to go into any particular deed, it would be a very difficult thing to do. Q So therels no right-of-way index that would show every right-of-way in the county or the township or anything like that? A Well, there is, but it's by name of owner of the right-of-way, not by location. Q I'll show you Defendants' Exhibit No.5. Would you look at that document and indicate to the Court what that is? 31 118 1 2 3 4 5 6 7 8 9 10 11 12 A It is the deed from Joseph Munro, a single man, and Isabella Munro of South Middleton Township to Alvin and Vera Weaver of South Middleton deeding land. Q Is this a deed from 1933? A Q A December 7th of 1933, yes, sir. This parcel is in South Middleton Township? It is, just off Route 34. Q Now, Route 34, the same Route 34 that's involved in the litigation between the Kellers and the Shealers? A Q Same route, different location. Are you particularly familiar with this 13 particular parcel? 14 15 16 17 18 19 20 21 22 23 24 A Q A I am. Why is that? It's next door to my home. Q With respect to this dE!ed, do the owners of this tract reserve a right-of-way for access to their land from Pennsylvania Route 34? A Yes, sir, a 12 foot lane. Q That is specified on the second page of the deed, is that right? A Q That's correct, sir. That's highlighted with a yellow marker, is 25 that right? 32 1'1 1 2 A Q Yes, sir. I'll show you what's been marked as 3 Defendants' Exhibit No.6, and I'll ask you to identify that 4 document, please? 5 A It is a deed dated September 26th, 1930, 6 with Emma Croman as a grantor and a Ray C. and Pearl Keller 7 as the grantees in Penn Township. 8 Q Let me back up. The prior deed was South 9 Middleton Township? 10 11 A Q Yes, sir. Does South Middleton Township border 12 Dickinson Township? 13 14 15 16 17 18 right? A Yes, it does. Q Now, this deed is in Penn Township. Does Penn Township also border Dickinson Township? 19 20 21 A Yes. Q Again, this deed is from 1930, is that A Q A Yes. And this deed reserves a right-of-way, also? It does. 22 Q On the second page, you. have highlighted on 23 the deed a reservation of a right-of-way? 24 25 A Q That's correct. Does it specify the width? 33 /JJJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A It does not. Q Does it call it a trail, a path? What language does this reservation -- A It states on and over the road running from the Pine Road through the tract. Q From your research, was this a reservation for a number of parcels? A Two, sir. Q Now, with that document not specifying a width, did you research the records relating to those parcels further to see if there was any other documents specifying the width of that? A I did. Q I'll show you what's been marked as Defendants' Exhibit No.8 (sic). Would you please identify that document? A It's a declaration of easement dated the 26th of February, 1990, between Kenneth C. Corman and his wife and David L. Myers, the grantee. Q Let me correct that. W'ould that be 1991? A It probably would be, yes. Yes, '91. Q Does this relate to the road that is referenced in Defendants' Exhibit No.7 that would go from the Pine Road to other property off the Pine Road? A Yes. 34 I :lJ 1 2 3 THE COURT: Did I miss something? There was no No.7. MR. GILROY: I'm sorry, No.6. I jumped out 4 of order. This one should be 7, Judge. 5 THE COURT: So the declaration of easement 6 is No.7? 7 8 9 10 11 MR. GILROY: Yes. THE COURT: The one from 1991? MR. GILROY: Yes. BY MR. GILROY: Q Referring again to No.7, does the 12 declaration of easement relate to the road as referenced in 13 Exhibit NO.6? 14 15 16 A Q Yes, it does. Does it specify a width of that road? MR. SNELBAKER: Before you answer that, I 17 want to pose an objection here that this is not any way 18 related in point of time to the time in issue here back in 19 1924. This was in 1991. 20 THE COURT: Sustained. 21 MR. GILROY: Judge, if I may counter that 22 objection, although you've ruled. 23 THE COURT: I've ruled. If you want to 24 protect the record, go ahead. 25 MR. GILROY: Judge, this is a document that 35 /;)2 1 refers to a right-of-way that was created in 1930, and here 2 land owners in 1991 are specifying what the width of this 3 road was that was created. I think this document clarifies 4 the 1930 document and reaffirms that in 1930 a 12 foot 5 roadway, right-of-way, was created. 6 7 THE COURT: Let me see the document. MR. GILROY: It's not a. whole separate 8 thing. It reverts back to the 1930 document. 9 THE COURT: I'm still going to sustain the 10 objection. 11 MR. GILROY: Thank you, Mr. Baird. No 12 further questions. 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SNELBAKER: No questions, sir. THE COURT: Thank you. THE WITNESS: Thank you, sir. MR. GILROY: Call Mr. Wolfe. RONALD C. WOLFE having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. GILROY: Q Please state your full name and address? A Ronald C. Wolf, 36 Green Mountain Road, Gardners, Pennsylvania, 17324. Q What is your relationship to Dickinson Township as being an official of the township? 36 1)1 1 2 3 A road master. Q township? A Q A Q Township? A Q 4 I'm a supervisor, chairman of the board, and How long have you been associated with the 12 been asked by me to appear here today and testify on behalf 13 of the Shealers with respect to your knowledge of rights-of-ways 14 located within Dickinson Township? 15 A Yes, sir. 16 Q Have you also been asked to appear with 17 respect to your knowledge as to what the Kellers would need 18 in order to gain access to their property? 19 A Yes, sir. 20 Q Relative to the Kellers gaining access to 21 their property, if the Kellers were using that 11 acre parcel 22 as a single-family residence and this Court declared that 23 they had a 15 foot right-of-way, would there be any problem 24 with the township with them gaining access to the property? 25 A None whatsoever, as long as they've got a 37 /:11 1 highway occupancy permit from the state. 2 Q Now, with respect to rights-of-way within 3 Dickinson Township, what personal information do you have 4 concerning rights-of-way that may be in existence that are 5 used and that are of a width of only 12 or 15 feet? 6 A Quite a few of them within the township that 7 I'm aware of. I had listed those when we gave our 8 deposition, and I have since remembered a few more that are 9 existing at the present time. 10 MR. SNELBAKER: I'm going to object to the 11 questions that are going to follow this so that we only have 12 to make it once, and that is that unless he has knowledge of 13 what these were when they were created back at the time -- 14 and this one would have been created in 1924 -- we're then 15 simply talking about driveways of whatever nature, and, 16 therefore, that would irrelevant testimony. 17 MR. GILROY: That's correct, Judge. He's 18 not going to be able to say when these rights-of-way were 19 created. He's going to testify as to a variety of 20 rights-of-way in Dickinson Township that are of a width of 12 21 to 15 feet and that have obviously been there for many, many 22 years and that those parcels of land that benefit from them 23 have been using those rights-of-way. 24 THE COURT: I'll sustain the objection then. 25 He's already testified that the township has no problem with 38 Il6~ 1 a 12 to 15 foot right-of-way for a single-family residence. 2 It's irrelevant for one point and cumulative for the other, 3 so let's move on. 4 MR. GILROY: No further questions. 5 CROSS-EXAMINATION 6 BY MR. SNELBAKER: 7 Q You indicated that there was no problem 8 about a narrow right-of-way for private use of a one-family 9 usage. That was the limit of your testimony on Mr. Gilroy IS 10 question about a 15 foot way, is that correct? 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes. Now, you were here to hear Mr. Keller testify, weren't you, sir? A Yes. Q He indicated that he wanted to develop this for several lots, perhaps as many as seven. Would I be correct that under the rules, subdivision rules and land use regulations of Dickinson Township, that it would be necessary to have a 50 foot public right-of-way? A That is correct. MR. SNELBAKER: Thank you. That's all. THE COURT: Would that have to be dedicated to the township as a township road? THE WITNESS: It could be a private road if they chose to, but it would still have to be put into the 39 I~(P 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 township's specifications. That's a 50 foot right-of-way 2 with 40 foot radius at the intersection of any road. 3 THE COURT: That would be if it's going to 4 be any more than one lot? THE WITNESS: Correct. THE COURT: Any follow-up? MR. GILROY: Yes. REDIRECT EXAMINATION BY MR. GILROY: Q Mr. Wolfe, if you're going to dedicate a private road that has to be built to public specifications, don't you need more than 60 percent of the property owners who front on it to approve that road? A If it's in the ordinance to that, it's very possible. I could not comment on it at the present time. Q Do you have an understanding with respect to dedicating a public road, do all of the property owners who own the road, do they have to join in the dedication, from your knowledge within the township? A That's more than I could say at the present. It's whatever is in the ordinance. MR. GILROY: No further questions of this witness. MR. SNELBAKER: No other questions, Your 25 Honor. 40 Il'l 1 2 THE COURT: MR. GILROY: Thank you, sir. We offer nothing further as far 3 as witnesses, Judge. We move for the admission of our 4 exhibits. If I haven't lost count, it's 1 through 7, 5 understanding the Court rejected 8. 6 THE COURT: And subject. to your objections 7 with regard to relevancy -- 8 9 10 MR. SNELBAKER: It was 7 that was rejected, not 8. MR. GILROY: That's right. It was 11 originally marked 8. 12 13 through 6? 14 THE COURT: 1 through 6. Any objection to 1 MR. SNELBAKER: Not except for the 15 relevancy, which is already of record, sir. 16 17 18 19 20 21 22 THE COURT: Okay. They're admitted. (Defendants' Exhibit Nos. 1 through 6 were admitted. ) THE COURT: You rest? MR. GILROY: Yes. THE COURT: Any rebuttal? MR. SNELBAKER: No, sir. 23 THE COURT: Do you wish to make closing 24 arguments off the record or on the record? 25 MR. SNELBAKER: I'm prepared to do it on the 41 I),r 1 record. Do you want them now, not in post-trial briefs? 2 THE COURT: I'll take it however you want to 3 do it. If you want to do a post-trial brief... 4 MR. GILROY: Since Your Honor admitted the 5 ordinance, Judge, I'm going to suggest that I would like a 6 little time to do a little bit more scouring of the township 7 ordinance relevant to this issue, because I think that's 8 relevant. 9 THE COURT: It would certainly help me if 10 you directed me to specific sections of the ordinance that 11 I'm to look at. I've got a couple of questions I would like 12 you to address in your briefs anyhow. I know Mr. Gilroy, I 13 guess, you're saying that because of this being ambiguous I'm 14 supposed to try to determine the intent of the parties back 15 in 1924? 16 MR. GILROY: Good luck. 17 THE COURT: Well, that's what I'm saying. 18 That's totally impossible. I would be grabbing at straws if 19 I did that. 20 MR. GILROY: Well, that's why we were 21 offering evidence, Your Honor, with respect to other rights- 22 of-ways created at that time and 23 THE COURT: You have rights-of-ways created 24 six years after that. 25 MR. SNELBAKER: In different communities. 42 1"4 1 2 THE COURT: Yeah. MR. GILROY: I think the point is, Judge, 3 that they're back at the '20s and '30s, and even as late as 4 the -- that's why we offer the one document as late as the 5 '90s that rights-of-way of the nature of 12 to 15 feet were 6 in existence, were created. If that's all the property owner 7 reserved, that's all they got. I recognize Mr. Snelbaker has 8 a good argument that the use of a right-,of-way needs to be 9 able to be expanded, and I think 10 THE COURT: Mr. Snelbaker, do you have any 11 cases specifically on point that says that it's got to be 12 expanded to be able to subdivide further the lot that was the dominant? 13 14 MR. SNELBAKER: No. There have been no 15 recent cases which would deal with the ITillnicipality's 16 planning code concepts, but there's a whole slew of cases in 17 my original motion which indicate that it is not a static 18 thing where it is not addressed to specifications, and, 19 therefore, it can be expanded, can be increased to a 20 reasonable use and includes moving from a path to a road. 21 THE COURT: Well, yes, and I see that 22 argument, but that's a great leap from a. path to a road to go 23 from a path to a road that's going to serve the tenants of 24 that property and make it a road that can subdivide it into 25 seven other tenants with separate legal title. I mean, 43 13D 1 that's a stretch. 2 MR. SNELBAKER: That's why I filed in my 3 second -- in my response to Mr. Gilroy's what the apparent 4 intention of the subdivider was here that he sold off the 5 frontage, which is just like farmers are doing today, selling 6 off the frontage and reserving the back for their development 7 of the rest of their land. 8 THE COURT: Well, you're not honestly saying 9 that back in 1924 that your predecessory in title was, looking 10 to develop this 11 acres back there into some residential 11 subdivision? 12 MR. SNELBAKER: Yes, I can honestly say 13 that, because he sold off the frontage for the same purpose. 14 15 16 1 7 years. THE COURT: But he did it over many, many years. MR. SNELBAKER: Well, he did it over a few 18 MR. GILROY: Up to 24, and then after that 19 he did nothing for 75 years. The land remained wooded, 20 unimproved. I like Mr. Snelbaker's argument, but it's 21 THE COURT: Well, we've got three out 22 parcels in 75 years. Now you're saying that he intended to 23 develop 7 of the remaining 11 acres. 24 MR. SNELBAKER: He intended to reserve 25 rights to do that, Your Honor. No, I don't think he intended 44 IJ I 1 to do it necessarily himself, which is now borne out by the 2 facts, but his successors need that in order to use that, and 3 it certainly is not a stretch to say that he wanted to be 4 able to do in the back land that which he did in the front. 5 I gave you the calculations there that would allow 11 lots 6 even under his average. 7 THE COURT: Well, based upon what I have 8 before me, how am I to determine where this easement goes? 9 MR. GILROY: We've agreed on that. On the 10 southern edge of the property. We've agrreed on that. 11 12 13 THE COURT: All right. That wasn't clear. MR. SNELBAKER: I think we stipulated that. MR. GILROY: In our pretrial memos, we've 14 indicated that the location of the easement would be on the 15 southern boundary. If Your Honor wants me to place that on 16 the record, I so stipulate. 17 18 THE COURT: Letls do that. MR. SNELBAKER: Well, your client testified 19 to it and we agreed to it. 20 THE COURT: So whether it's 50 feet or 15 21 feet or something in between 22 MR. GILROY: It has to be there, or else it 23 goes through their house. 24 THE COURT: It's going to go on the 25 southernmost property? 45 /51 1 2 3 4 MR. GILROY: Yes. THE COURT: And the parties agree with that? MR. GILROY: Yes, Judge. MR. SNELBAKER: Here is a little schematic 5 of where it would be. I've just taken a pencil now and put 6 that pencil mark on there to show you what I meant where the 7 southern line would be. 8 THE COURT: The sketch on Plaintiffs' motion 9 in limine that appears on Page 2 would be on the furthest 10 right side. I see. 11 MR. GILROY: To southern boundary in those 12 photos, Judge, is where it was cleared off. 13 THE COURT: I understand. 14 MR. GILROY: Our view, Judge, is that we're 15 agreeing that it's there for as long as the grass grows and 16 the water runs. We agree that it's there. Our position is 17 in 1924 -- this Court should reasonably be able to conclude 18 that it's about a 15 foot easement. We did cite in our 19 memorandums, Judge, a case almost on point where there was a 20 15 foot right-of-way requested to change it to 50 feet, and 21 the Court said exactly what you said. That's a little bit 22 too big of a jump. It was a different use they wanted to 23 employ. 24 THE COURT: Well, but in that particular 25 case you had a 15 foot right-of-way. In this case, I don't 46 J~~ 1 have any right-of-way. If I had something that was being 2 used for 15 feet, that's one thing. But, frankly, I don't 3 have anything being used by anybody, and I'm supposed to make 4 a determination out of whole cloth. 5 MR. GILROY: I agree. If you take a 50 foot 6 right-of-way off the front of my clients' property, 20 7 percent of their property is gone. 8 MR. GILROY: I don't think the grantor in 9 1924 intended to give land off and have the ability to take 10 20 percent back when they haven't used it a day since that 11 time. And 20 percent is a major leap. This is not a 50 acre 12 parcel that they have a right -of -way OVE~r, Judge. 13 THE COURT: I would be interested in seeing 14 what the briefs say. From your standpoint, if you're telling 15 me that single-family residential use is: enough, I'd ask you 16 to point me to the PennDOT regulations that are in evidence 17 that says a 15 foot right-of-way would justify that, because 18 I didn't hear that from the testimony. I heard the township, 19 the okay from the township, but I don't know that PennDOT is 20 going to give that. 21 MR. GILROY: I didn't hear it from the 22 Plaintiffs either suggesting that PennDOT is going to require 23 50 feet. I hear that PennDOT is going to require a highway 24 occupancy permit, and the regulations are in there. I don't 25 know that we're necessarily going to see -- and I looked at 47 /1:Jtf .') 1 those regulations, and they're very difficult to read and 2 interpret, Judge. We don't have any expert testimony 3 suggesting that PennDOT is going to require a certain width 4 for basically a driveway at this particular location. 5 MR. SNELBAKER: I think we're sparring at 6 the windmill here. Whatever it is has to be approved by 7 PennDOT, according to the township regulations. So we have 8 to start with the township regulations, go through it, then 9 apply for an HOP. Now, the regulations and I will cite 10 those in a brief -- that indicate that you have various 11 requirements for site distances, which is what the department 12 is looking for, they don't care about the width as long as 13 they have the correct site distance. There's a difference 14 for a driveway as distinguished from what they call a local 15 road. This would be a local road, meaning the township road. 16 THE COURT: So I've got to determine, first 17 and foremost, whether a 7 lot residential subdivision was 18 contemplated by the original right-of-way or easement. 19 MR. SNELBAKER: I'm not going to stipulate 20 to that limitation. That is one of the things which he could 21 have done under his scheme that he had already laid out for 22 the first three lots, and that corresponds exactly with the 23 township regulation for this particular area. 24 25 MR. GILROY: Which weren't ln existence in '24. THE COURT: Were the first three lots all 48 I J.J S- 1 laid out at the same time? 2 3 4 MR. SNELBAKER: No, no, no. They were laid out seriatim. MR. GILROY: My clients. lot was the last 5 one, Judge, so nothing was laid out from '24 on. 6 THE COURT: As I understand the testimony 7 today - - and correct me if I I m wrong what was left just 8 remained as wooded land for the past 75 :years. 9 MR. SNELBAKER: Unimproved land. 10 THE COURT: And not having been used by 11 anybody for any purpose. 12 MR. GILROY: I suspect people hunted on it, 13 as people would do down there in Dickinson Township, central 14 Pennsylvania. 15 THE COURT: But there.s no set path for 16 ingress and egress or anything like that:? 17 MR. GILROY: No, sir. 18 THE COURT: You're not making it any easier. 19 MR. GILROY: Well, I showed you a case, 20 Judge. I agree that it's a difficult case because we're 21 trying to figure out what the parties contemplated in '24 22 when they reserved the roadway. I would suggest they 23 contemplated access to that property. That · saIl. 24 MR. SNELBAKER: Just so that that parting 25 thought does not get lost in what is, I think, the law, and 49 13~ 1"". " \ 1 that is that regardless of what the parties thought, where it 2 was ill-defined back at that time, you look at it now from a 3 reasonable standpoint because you do have the right to expand 4 what may have been contemplated even at that time. There's a 5 whole series of cases in there that I cited, beginning with 6 Soltis v. Miller, that says that you can widen, increase, the 7 right-of-way to serve present needs in a reasonable manner. 8 THE COURT: Well, I 'll take a look at the 9 size of the other out parcels. I haven't heard anything 10 today that tells me that they contemplat~=d using that for a 11 major subdivision, a 7 or multiple-lot subdivision. 12 Certainly, he planned on using it for something, whether it 13 was a farmette or something to live on. That's not a great 14 leap of faith to find that. But to say that he contemplated 15 a 7 parcel subdivision may be a leap of faith. But I 'm 16 interested to see what the cases say. I looked quickly at 17 your briefs, but I didn't read all of the cases. I read the 18 one case Mr. Gilroy cited, and I looked quickly at the facts 19 in the other cases, but they differ, because they actually 20 either had a defined right-of-way -- 21 MR. GILROY: Judge, this case has no twin 22 sister. We I re not going to find anythin9 on point. We have 23 been searching. You may have to grab tha.t twig from the air. 24 THE COURT: Well presented, Counsel. I'll 25 look forward to seeing your briefs. What type of a time 50 /,1 1 frame do you need, gentlemen, to get'a brief to me? 2 MR. GILROY: Do you simply want a trial 3 memorandum setting forth or position with respect to the 4 ordinance? I would like some time to look at that ordinance, 5 Judge, in detail. 6 THE COURT: What I would like to do is to 7 have you save me the time of digging through the entire 8 ordinance and point out in your brief the relevant sections. 9 MR. GILROY: Two weeks today? 10 THE COURT: Two weeks? 11 MR. SNELBAKER: Yes. 12 13 (The following Order was entered by the Court: ) 14 "AND NOW, this 29th day of July, 2002, the 15 parties are directed to file memorandum of law in support of 16 the respective positions by Monday, August 12, 2002. The 17 parties are given leave to file responsive briefs if they so 18 desire. " 19 (The proceeding was concluded.) 20 21 22 23 24 25 51 13~ I"'" , ~ - . , J CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. k/?'.&~ Susan Rice Stoner Official Stenographer ----------------------- The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. I)./n/. ). Date Edward E. Guido, J. 52 I~~ ~- ;.")- ,~~- ". -::J "' ........ ?-= -:::> =5-<r u=;" u~i} '- ;f(1) -.1 :z ![jif5 1;+)<1... ~~ .:5 o 0:) <-: lI..,J c:::; 0v C> 1"", ".... ~ l~ Irene M. Bizwso Deputy Prothonotary Shirley Bailey ChiefClcrk Supreme Court of Pennsylvania Middle District July 26, 2005 Mr, Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: James M. Keller and Elaine N, Keller, Petitioners v, Barry L. Shealer and Marlene A. Shealer, Respondents Superior Docket Number - 1774 MDA 2002 Trial CourVAgency Dkt. Number: 01-771 CIVIL TERM No. 846 MAL 2004 Appeal Docket No.: Date Petition for Allowance of Appeal Filed: September 10, 2004 Disposition: Order Denying Petition for Allowance of Appeal Date: July 26, 2005 Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /ma P.O. Box 624 Harrisbun!:. PA 17108 717-787-6181 www.aopc.org IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT JAMES M. KELLER AND ELAINE N, KELLER, No, 846 MAL 2004 Petitioners Petition for Allowance of Appeal from the Order of the Superior Court v. BARRY L. SHEALER AND MARLENE A. SHEALER, Respondents ORDER PER CURIAM AND NOW, this 26th day of July, 2005, the Petition for Allowance of Appeal is hereby denied. TRUE AND CORRECT COpy ATTEST: July 26, 2005 A~.t5 Appellate Court Clerk (') ,.., ~ = (::~; g'. ,.~~ ~ ""'l' "'" n"-':" c: ",-plc ;;;. G~) -om ,r.:::- :0 '1? cr' 0' -<.':., S2.c~_ r- \- ~:r:-r, ...~ '. '~,~~':- pO' (-:):11 ~ ~':lI' () "';;""," C? Qrn -\ -I' ~ "3 ,- c...:> . - u;l /771 /J1/JA 7JA7 ?- i..- U'-- IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT JAMES M. KELLER AND ELAINE N, KELLER, No. 846 MAL 2004 Petitioners Petition for Allowance of Appeal from the Order of the Superior Court v, ~~()I- 77l ~ BARRY L. SHEALER AND MARLENE A. SHEALER, Respondents ORDER PER CURIAM AND NOW, this 26th day of July, 2005, the Petition for Allowance of Appeal is hereby denied, TRUE AND CORRECT COpy ATTEST: July 26, 2005 (~.~ Amy K wartZ, Appellate Court Clerk o c ~;J ~T /" , (~;:: -'." " '-.. , ""'-- );::.:)~".- 5~ -.i -< ,..., = = c>' ~ c,-, ~ ~""T1 mfT; 1\y ~~Q ::t:~~ ;~C. ;S;rr1 :::::~l -c> ?i 0:> ".. :x o <:::) J. A32007j03 NON-PRECEDENTlAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JAMES M. & ELAINE N. KELLER, Appellants IN THE SUPERIOR COURT OF PENNSYLVANIA v. JJ()/-li t ~ BARRY L. SHEALER, ET UX, Appellees No. 1774 MDA 2002 Appeal from the Order entered October 31, 2002, in the Court of Common Pleas of Cumberland County, Civil, at No. 01-771 CIVIL TERM. BEFORE: HUDOCK and KLEIN, JJ. and McEWEN, P.J.E. MEMORANDUM: FILED: August 13, 2004 James M. and Elaine N. Keller (the Kellers) appeal from an order in a quiet title action that determined the dimensions and nature (whether for public or private use) of a reserved easement for ingress and egress to their property over land now owned by Barry L. Shealer and Marlene A. Shealer. We affirm. The trial court ably summarized the pertinent facts and procedural history as follows: Almost 90 years ago George W. Paxton acquired title to 15112 acres of mountain land in Dickinson Township, Cumberland County, Pennsylvania. The tract had slightly more than 400 feet of frontage along Pennsylvania Route 34 (also known as the Gettysburg Road). Over the next decade Mr. Paxton sold off three parcels containing in the aggregate just under 4112 acres and all of the frontage along the Gettysburg Road. The third and final outparcel was conveyed in 1924. It consisted of a little more than J. A32007/03 one acre and contained the remaining 238 feet of road frontage. The sale of that third tract gives rise to the litigation currently before us. Since the conveyance effectively landlocked his remaining 11 acres, Mr. Paxton reserved access thereto with the following language in the deed: In consideration of the above tract of land the Grantor reserves a roadway from the Carlisle and Gettysburg Public road to a point on the eastern end of the said tract for his use or his assigns for a period of time unlimited, or as long as grass grows and water runs. A 60 foot long single family residential dwelling was eventually built on the outparcel in question. The residual mountain land has remained in its original unimproved state. The easement has not been used. [Elaine N. Keller] is the great granddaughter of George W. Paxton. She and her husband acquired title to the residual tract from her father's estate in 1995. [The Shealers] purchased the outparcel with improvements in March of 2000. [The Kellers] desire to subdivide their land into a seven lot residential development. However, in order to be in compliance with the applicable township ordinances and Penn DOT regulations, they must construct a 50 foot wide public road across [the Shealers] land. [No such ordinances or regulations existed at the time of the original grant.] They contend that this contemplated use is permitted under the terms of the easement. [The Shealers] do not want a 50 foot wide public road running across their property. They contend that no such use was ever contemplated and that a private road 12 to 15 feet wide is all that [the Kellers] are entitled to under the terms of the original reservation. Trial Court Opinion and Decree Nisi, 10/16/02, at 1-2 (footnotes omitted). Following a nonjury trial, the court entered a decree nisi finding that: (1) - 2 - J. A32007/03 the Kellers have an express easement across the Shealers' land to Pennsylvania Route 34; (2) "the parties to the original grant did not intend the 'roadway' to be SO feet wide or to be dedicated to the public"; (3) the Kellers, "as owners of the dominant tenement, are entitled to an easement of sufficient width to accommodate the reasonable and lawful use of their land without creating an unreasonable burden on [the Shealers'] servient tenement"; (4) the Kellers "proposed construction of a SO foot wide road and its subsequent dedication to the township for public use would unreasonably burden the servient tenement"; and, (5) "[t]he construction of a 15 foot wide private roadway would not unreasonably burden the servient tenement." Trial Court Opinion and Decree Nisi, 10/16/02, at 2-3. The Kellers filed exceptions to the decree nisi on October 25, 2002. By order entered October 31, 2002, the court granted in part and denied in part the Kellers' exceptions1 and made final the October 16, 2002, decree nisi. This timely appeal followed. On appeal, the Kellers present the following issues for our consideration: 1. Was there legally sufficient evidence to sustain the trial court's factual decision on the original parties' intentions at the time of creation of the easement in issue? 1 The court granted the Kellers' exceptions only to the extent that it had mistakenly referenced in its opinion and decree nisi that Marlene A. Shealer was the great granddaughter of George W. Paxton, instead of Elaine N. Keller. - 3 - J. A32007j03 2. Were the trial court's factual findings arbitrary and capricious? 3. May deeds containing references to easements between other parties, in other municipalities and in other chronological times, be admitted to establish dimensions and characteristics in the present case? 4. Is the trial court's decision supported by competent evidence? 5. Where a reserved easement for a roadway contains no dimensions nor [sic] limitations as to its character or use, is the owner of a landlocked dominant tenement entitled to a roadway over the servient tenement of sufficient dimensions and characterization so as to be susceptible for dedication as a public road between an existing public state highway and the dominant tenement? The Kellers' Brief at 4. Preliminarily we note our role and standard of review in appeals challenging the findings and conclusions of a trial judge in a non-jury case: Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Furthermore, our standard of review demands that we consider the evidence in a light most favorable to the verdict winner. Baney v. Eoute, 784 A.2d 132, 135 CPa. Super. 2001). Keeping our role and standard of review in mind, we will now address the Kellers' claims on appeal. - 4 - J. A32007/03 Each of the issues that the Kellers raise on appeal center on the trial court's interpretation of the language contained in the express easement. In issues 1 and 2, the Kellers challenge various factual findings of the court. In issues 3 and 4, the Kellers contend that the trial court erred in permitting the admission of two deeds referencing other easements which were unrelated to the present case to aid in its interpretation of the language of the easement and disregarded other pertinent evidence favorable to the Kellers. In issue 5, the Kellers assert that the trial court failed "to apply the principles contained in a long list of appellate decisions which requires the interpretation of vague language of a reserved easement in favor of the successor to the reserving party in a manner which will provide for the reasonable and lawful uses of the land served by the easement under contemporary circumstances." The Kellers' Brief at 8. This Court, in reviewing the interpretation of an express easement, has summarized the applicable principles and rules of construction as follows: When reviewing an express easement, the language of the agreement, unless ambiguous, controls. See Fedorko Properties, Inc. v. C.F. Zurn & Associates, 720 A.2d 147, 149 (Pa. Super. 1998). The terms of the instrument conveying the interest are interpreted by applying general principles of contract law. See Hann v. Saylor, [562 A.2d 891,893 (Pa. Super. 1989)]. Clear contractual terms that are capable of one reasonable interpretation must be given effect without reference to matters outside the contract. See Samuel Rappaport Family Partnership v. Meridian Bank, [657 A.2d 17, 21 (Pa. Super. 1995)]. Where a term is ambiguous and susceptible of more than - 5 - J. A32007j03 one reasonable interpretation, however, the court is free to receive extrinsic, i.e. "parol evidence" to resolve the ambiguity. See id. "A contract will be found ambiguous: if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning." Id. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree on the proper construction. See id. at 21-22. Baney, 784 A.2d at 136. Moreover, "[w]hen the purposes of an express easement are not specifically stated, the court must ascertain the objectively manifested intention of the parties in light of the circumstances in existence at the time of conveyance." Pare Holdings, Inc. v. Killian, 785 A.2d 106, 112 (Pa. Super. 2001), appeal denied, 568 Pa. 702, 796 A.2d 984 (2002) (citing Lease v. Doll, 485 Pa. 615, 623, 403 A.2d 558, 561 (1979)). However, "when the terms of an express grant of an easement are general, ambiguous, and not defined by reference to the circumstances known to the parties at the time of the grant, the express easement is to be construed in favor of the grantee [of the easement] and the easement may be used in any manner that is reasonable." Lease, 485 Pa. at 621, 403 A.2d at 562 (citations omitted). Thus, "when a grant of an easement is ambiguous we must determine if the grantee's asserted use is a reasonable and necessary use in relation to the original purpose of the grant and within the intention of the original parties to the grant." Matakitis v. Woodmansee, 667 A.2d - 6 - J. A32007/03 228, 232 (Pa. Super. 1995) (quoting Zettlemoyer v. Transcontinental Gas Pipeline, 540 Pa. 337, 345, 657 A.2d 920, 924 (1995). Specifically, in issues 1 and 2, the Kellers argue that the court's findings as to the intentions of the original parties surrounding the drafting of the easement are not supported by the evidence at trial. The Kellers challenge the following statements of the trial court in its opinion and decree nisi: In the instant case, we find that the parties did not intend the easement to be 50 feet wide nor did they intend it to be dedicated to the public. In the first instance, the grant of a 50 foot wide easement would have been both unusual and unnecessary in 1924. A 50 foot easement would contain more than 20 per cent of the road frontage conveyed with the servient tenement. We would clearly expect such a large easement to be expressly stated in the grant. Furthermore, any conceivable need for ingress and egress to the mountain tract retained by Mr. Paxton could have been accomplished with a 12 or 15 foot wide easement. Additionally, the reservation for use of the roadway was personal to Mr. Paxton or "his assigns." Had the parties intended it to be used by the public, or dedicated to the township, it is reasonable to assume that the language in the reservation would have so indicated. Furthermore, if Mr. Paxton had intended to dedicate 50 feet of frontage along the Gettysburg road to public use, he is more likely to have retained title to it rather than simply reserving an easement. This is particularly true if he had intended to develop the remaining land, which we conclude he did not. [The court further noted that "[w]e are satisfied that Mr. Paxton had no intention of developing the remaining land at the time he sold the last vestiges of road frontage. The most reasonable conclusion is that he intended to use the remaining land as a mountain retreat for which an easement would suffice."] - 7 - J. A32007/03 There is no basis to conclude that the parties to the 1924 deed intended the easement to be for anything other than the personal use of the owner and future owners of the remaining mountain land. All developable property and road frontage was sold off relatively quickly. A private roadway was retained for access to otherwise inaccessible mountain land. To conclude that the parties intended that access to be 50 feet wide and public is not supported by reason or common sense. Trial Court Opinion and Decree Nisi, 10/16/02, at 4-5 (footnotes omitted). In arriving at its conclusions, the trial court considered various stipulations entered by the parties prior to trial and the testimony of James Keller, Marlene Shealer, Nevin J. Baird (a title searcher) and Ronald C. Wolfe (Supervisor of Dickinson Township). At trial, Mr. Keller testified that the 11.1563-acre parcel of land that he and his wife had inherited from his wife's family had never been developed and at present remained "wooded land". N.T., 7/29/02, at 10. Mr. Keller further testified that he and his wife would like to develop the property into seven residential lots for sale. However, in order to have a subdivision of the seven lots, a publiC road measuring fifty feet in width is required pursuant to the Dickinson Township Subdivision and Land Development Ordinance and Pennsylvania Department of Transportation regulations. After Mr. Keller's testimony, the Kellers' counsel moved for admission of eleven exhibits and then rested their case. 2 2 At the beginning of trial, defense counsel stipulated to exhibits one through eight, which included: 1) Legal description to the Kellers' property; 2) Chain of title to the Kellers' land; 3) Legal description to the Shealers' property; 4) Chain of title to the Shealers' land; 5) Photocopy of the deed between F.B. Sellers and George Paxton dated September 20, 1913; 6) Photocopy of deed - 8 - J. A32007/03 On behalf of the defense, Marlene Shealer testified that she and her husband had purchased their property in January 2000 and had been living in the house on the property since March 2000. She explained that her house is sixty feet in length and, on the south side of their house, they leveled the property and removed timber where they have built a garage. Mrs. Shealer further testified that her lot contains an additional building and parking lot, which used to be a garage/gas station. Since her purchase of the property, this building has been converted into a ceramic shop, which is now a part-time business. Mrs. Shealer's property fronts on Pennsylvania Route 34 for a distance of 238 feet and has a depth of 325 feet. On the southern portion of the premises, the Shealers have constructed a garden and a fish pond. This is where she entertains her grandchildren because it is situated a safe distance away from the highway. Mrs. Shealer further testified that, should the Court grant a fifty-foot right-of-way, it would render useless a large part of their property, would be in close proximity to their garage, take over the area for their garden and fish pond, and decrease the privacy of the property, as well as its value. between George Paxton and E.S. Starner dated August 17, 1917; 7) Photocopy of deed between George Paxton and Andrew Shuff dated January 28, 1922; and 8) Photocopy of deed between George Paxton and George C. Meckley and wife dated September 22, 1924. The Kellers' exhibits 9 through 12 included the Zoning Ordinance for Dickinson Township, Dickinson Township's Subdivision and Land Development Ordinance and The Pennsylvania Department of Transportation's rules and regulations - 9 - J. A32007/03 Next to testify was Nevin J. Baird, a title searcher. Mr. Baird testified that he was retained by the Shealers to research and identify various deeds in and around the 1920's and 1930's with respect to the general widths of right-of-ways. Mr. Baird testified, over objection, to two deeds that he was able to locate. The first deed he submitted was a deed between Joseph and Isabella Munro and Alvin and Vera Weaver pertaining to a parcel located in South Middleton Township (South Middleton Township borders Dickinson Township) but that also bordered on Pennsylvania Route 34. In the deed, the Munros, as owners of the dominant tract, reserved a right-of-way over the servient parcel granted to the Weavers by retaining a twelve-foot lane for access to their land from Route 34. In a second deed dated September 26, 1930, Emma Croman granted to Ray and Pearl Keller property in Penn Township (also bordering Dickinson Township) wherein she reserved a right- of-way on and over a road crossing the property to the dominant parcel retained by Ms. Croman. This right-of-way similarly did not provide measurements for the easement. Counsel then attempted to offer into evidence a declaration of easement filed in February 1990, which clarified the width of the road. The Kellers' counsel objected to this document as not relevant in that it was not of the time frame at issue. The court, thereafter, sustained the objection. pertaining to creating and maintaining an access driveway which intersects with a state road. - 10 - J. A32007/03 The last witness to testify was Ronald C. Wolf, Supervisor, Chairman of the Board and Road Master of Dickinson Township. Mr. Wolf testified that if the Kellers subdivided their property into more than one lot, any roadway, regardless of whether it was private or public, traversing the Shealers' property from Route 34 would have to comply with township specifications, which require a fifty-foot right-of-way with a forty-foot radius at the intersection of any road. He further stated that should the Kellers use their property as a single-family residence, a fifteen-foot right-of-way would be sufficient to gain access to their property and would be in compliance with Dickinson Township ordinances. However, he did note that the Kellers would have to obtain a highway occupancy permit from the Pennsylvania Department of Transportation. The parties further conceded at trial that while there was a right-of- way retained by George Paxton in the original grant of the property, the easement had never been used nor had a roadway been created. The parties further agreed that when the roadway is constructed it should be located on the most southerly portion of the Shealers' property. The parties only dispute was as to the width and nature (public or private) of the easement. Upon reviewing the language of the general reservation of the right-of- way/easement, it is clear that the terms regarding its width and intended use are ambiguous. The grant only describes the reservation as "a roadway - 11 - J. A32007/03 from the Carlisle and Gettysburg Public road to a point on the eastern end of the [dominant] tract for [George Paxton's] use or his assigns for a period of time unlimited, or as long as grass grows and water runs." Because the evidence and testimony does not evince the express intention of Mr. Paxton or the Meckleys in entering into this grant, reference must be made to the attending circumstances at the time the September 24, 1924, grant was signed. Pare Holdings, Inc., supra. The attending circumstances reveal that Mr. Paxton had previously, in 1917 and in 1922, conveyed two parcels of land which fronted on Pennsylvania Route 34. At the time of the September 24, 1924, conveyance, by which Mr. Paxton conveyed his final piece of property which fronted Route 34, he wanted to retain a right-of- way/easement across the property because, without such, his remaining property would be landlocked and rendered useless. At the time of the conveyance, Mr. Paxton did not reside on the dominant tenement, the dominant tenement was undeveloped and wooded, and there was no existing roadway through the property to be conveyed to the Meckleys. Based on these attending circumstances, coupled with the undisputed fact that for seventy-seven years following the conveyance the tract of land presently owned by the Kellers remained undeveloped wooded land, and the roadway contemplated in the 1924 deed has never been constructed or utilized, we fail to find that the trial court erred in its determination of the intended use and width of the right-of-way/easement. See Zettlemoyer, - 12 - J. A32007/03 540 Pa. at 349, 657 A.2d at 926 (providing that extrinsic evidence of grantee's subsequent use of easement, while it may not be the only extrinsic evidence considered, "has some value as evidence of the original intent or purpose of the grant," when the written agreement is ambiguous). Our Supreme Court has explained: Where the language of a contract is contradictory, obscure, or ambiguous, or where its meaning is doubtful, so that it is susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally execute, while the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes a rational and probable agreement must be preferred. If one construction would make it unreasonable, while another would do justice to both parties, the latter will be adopted. Where the language of a contract is ambiguous or susceptible of several significations, conjectures are necessarily resorted to to determine the meaning of the parties; and for this purpose conjectures may be drawn from the subject matter, and from the circumstances of the contract. Percy A. Brown & Co. v. Raub, 357 Pa. 271, 287, 54 A.2d 35, 43 (1947) (citations omitted). We agree with the trial court that it is unreasonable to believe that the parties would have entered into an agreement for an easement across the property fifty feet in width, which would essentially seize twenty percent of the servient property, without expressly stating so in the grant. Accordingly, based on the attendant circumstances existing at the time of the 1924 conveyance, we conclude that the most reasonable and logical implication is as the trial court found. The objectively manifested intent as shown by the existing circumstances favors the interpretation that - 13 - J. A32007/03 the purpose of the right-of-way was to provide a private roadway from Pennsylvania Route 34 to the dominant tenement, which would be otherwise landlocked by the 1924 conveyance. There was no evidence whatsoever that Mr. Paxton intended to further subdivide or otherwise develop his remaining acreage or that he required a right-of-way greater than that needed for his, his family's or his assigns' transportation to and from the dominant parcel. Thus, we find the Kellers' arguments, that the factual findings of the trial court are not supported by the evidence and/or were arbitrary and capricious, to be without merit. In issue 3, the Kellers contend that the trial court erred in admitting the deeds referencing other easements, which are unrelated to the present case. The Kellers argue that the exhibits should have been excluded for lack of relevancy as they were right-of-ways/easements created by other persons, in other jurisdictions at unrelated times. Even assuming that the admission of the deeds was improper, we do not find that this error entitles the Kellers to any relief. The trial court does not indicate that it relied on these deeds in rendering its decision. In fact, these deeds are not referenced at all by the trial court in its decree nisi or final order. It is well settled that when a judge is sitting as the trier of fact he or she is presumed to disregard inadmissible evidence and consider only competent evidence. Kitrell v. Dakota, 540 A.2d 301, 304 (Pa. Super 1988) (citing Commonwealth v. Davis, 491 Pa. 363, 372 n.6, 421 A.2d 179, 183 n.6 - 14 - J. A32007/03 (1980)). Moreover, when a trial court error does not control the outcome of the case, it will be deemed harmless. Wilson v. Donegal Mutual Insurance Company, 598 A.2d 1310, 1315 (Pa. Super. 1991). In this instance, the court's determination was independently supported by the facts and evidence as discussed above. To the extent the Kellers infer that the court was influenced by the deeds (one containing an easement twelve feet in width and one of undetermined width) in determining that the within easement should be fifteen feet in width, it is equally or more likely that the court consulted the Pennsylvania Department of Transportation's Regulations, which were submitted as an exhibit to the court by the Kellers. See 67 Pa. Code section 441.8(A)(1)(i) and 441.9 Figure 7 (which provides that the minimum required width for a residential access drive is ten feet and the maximum width is twenty feet.) See also Lease, 485 Pa. at 620 n. 5, 403 A.2d at 561 n.5 (providing that when the width is unspecified, the easement "will be held to be of such width as is suitable and convenient for the ordinary uses of free passage"). Thus, we find no error in the trial court's determination that a fifteen-foot road is suitable for ingress and egress from the Kellers' property to Route 34 and that such determination finds support in admissible evidence submitted at trial. Accordingly, we find the Kellers' arguments in this regard devoid of merit. In issue 4, the Kellers maintain that the trial court disregarded competent evidence which indicates that George Paxton intended to reserve - 15 - J. A32007/03 a right for public access to their lands. Specifically, they contend that because Mr. Paxton had sold three parcels] (each totaling approximately one to two acres) of his fifteen acres of land, it was "readily apparent that he contemplated future development of a similar nature when he reserved the 'roadway' in the Meckley deed) which is now part of the Shealers' land." The Kellers' Brief at 18. From this, the Kellers conclude that "the parties in the Paxton-to-Meckley transaction understood that a public roadway was intended by the reservation." Id. In further support of this argument, the Kellers, relying on Respublica v. Arnold, 3 Yeates 417 (1802), posit that the word "road" is uniformly applied to publiC roads unless speCifically designated otherwise. Therefore, they conclude that the trial court's interpretation of the word "road" as a private road instead of a public road was an error of law. We are unpersuaded by the Kellers' argument. As before mentioned, the fact that Mr. Paxton sold three parcels, each of which border on Pennsylvania Route 34, is not evidence, in and of itself, of an intent to further subdivide or otherwise develop the remaining acreage. This is especially true in light of the other attendant circumstances and reasonableness of such an interpretation, which have been discussed in detail in response to the Kellers' arguments in issue 1 and 2. Moreover, it is ] See Deed from George Paxton to E.S. Starner, supra, and Deed from George Paxton to Andrew Shuff, supra. - 16 - J. A32007/03 apparent that the court, in rendering its decree nisi and final order, specifically considered these conveyances. See Opinion and Decree Nisi, 10/16/02, at 4-5. Lastly, we agree with the trial court that the Kellers' reliance on the interpretation of the word "road" in Respublica is misplaced. In Respublica, the court stated that "[t]he word 'road', used generally in our laws, is uniformly applied to public roads, unless where the diminutive private is added thereto. It is synonymous with the term highway." Id. at 421. The trial court in this instance rejected extending this interpretation to the present case. Rather, the court cited to the more recent Supreme Court case of Garan v. Bender, 357 Pa. 487, 55 A.2d 353 (1947), in which the word "road" was held to describe an easement for private use. We believe that the trial court's reliance on Garan is justified as, during the course of time, common words provide modified connotations due to a changing society and technological advances. Moreover, in Commonwealth ex. reI. v. Faux, 95 Pa. Super. 482, 488 (1929), we refused to follow the view espoused in Respublica, finding that, without other evidence, it would be a "dangerous doctrine" to hold that the mere fact that a description in a deed of conveyance makes reference to a "road" conclusively determined that the road was then a public highway. Accordingly, we find the trial court did not err in disregarding the antiquated interpretation of the word "road" as found in Respublica and in relying on the more modern authority of Garan. - 17 - J. A32007/03 In issue 5, the Kellers argue that, because subdivision of their land is a reasonable part of modern development, case law requires that we construe the easement to accommodate this change in the use of the dominant tenement. While it is true, as the Kellers assert, that "enlarged uses of easements resulting from a change in the use of the dominant tenement have been recognized by this Court to be within the scope of the original easement[,]" Soltis v. Miller, 444 Pa. 357,360,282 A.2d 369, 371 (1971), it is equally true that "only reasonable increases in the burden imposed on the easement are permitted." Hoch v. Philadelphia Electric Company, 492 A.2d 27, 30-31 (Pa. Super. 1985). Our courts have "permitted express easements to accommodate modern developments, so long as the use remains consistent with the purpose for which the right was originally granted." Hash v. Sofinowski, 487 A.2d 32, 34 (1985). "This is based upon a presumption that advances in technology are contemplated in the grant of the easement." Id. (citing Smith v. Fulkroad, 451 A.2d 738 (pa. Super. 1982)). See e.g. Lease, supra, and Piper v. Mowris, 466 Pa. 89, 351 A.2d 635 (1976) (allowing express easements granting ingress and egress to dominant tenements across the servient tenements to expand from footpaths to ways permitting passage of motor vehicles). However, Pennsylvania Courts have been careful not to permit expansion of an easement where it will unreasonably burden the servient property. See Matakitis, supra (holding that it would have been unreasonable to expand - 18 - J. A32007/03 right-of-way across servient estates, so as to broaden width from fifteen to fifty feet, and to allow easement to be utilized for commercial purposes, so that dominant estate owner could utilize property for bed and breakfast inn, even though deed creating right-of-way was ambiguous, reserving "a way of ingress, egress, and regress convenient from the highway. to [dominant estate]); Smith, supra (finding that although public had attained easement by prescription for unrestricted use of original dirt lane, right-of- way easement could not be found to extend to cover an improved road, some twenty feet in width, handling heavy trucks carrying sixty tons of refuse per day to a sanitary landfill). See also Leistner v. Borough of Franklin Park, 771 A.2d 69 (pa. Cmwlth. 2001), appeal denied, 567 Pa. 750, 788 A.2d 381 (2001) (providing that Borough's use of road as an access way for park patrons resulted in an increase in traffic that placed an impermissible burden on the private easement borough acquired as successor to one owner, where road had been a sparsely traveled one lane dead-end road used by homeowners and their guests to access their homes but had changed to a roadway traveled by hundreds of vehicles each day after borough opened park next to it). In the present case, we agree with the trial court that it would be unreasonable and unduly burdensome on the the Shealers' property to permit a fifty-foot public road to be constructed, which would essentially confiscate twenty percent of the servient property. This is especially true where, for seventy-seven years following the - 19 - J. A32007/03 reservation, the dominant tenement, presently owed by the Kellers, remained undeveloped wooded land and the roadway contemplated in the 1924 deed has never been constructed or utilized. Consequently, we will not upset the trial court's decision. Order affirmed. Date: - 20 - '2 -> (:",:'J 2~ -''''' ~ (.) .\ -<.. ~ co .... fF.::n hi :?, C(1 C)(, Z~)~ ~<4 ~ :...;, ~ ..."" c:) o