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Joseph A, Turri
IN THE SUPERIOR COURT
or PENNSYLVANIA
v,
(C,P, Cumberland County
No,98-480)
John and Susan Povilaitis
No. 741 MDA 2001
Filcd: AUl!ust 7
.2001
ORDER
This appeal has bccn takcn from thc vcrdiet cntcred April 2, 2001 in thc nonjury
trial of this matter.
An order entering a verdict in favor of a party is interlocutory and not appealable
until tinal judgment has been cntered on the docket. See Tllmey Media Fllel, fllc. v. Toll
Brothers, fllC" 725 A.2d 836 (Pa. Super. 1999); Relller v. Citizells & Northem Balik,
599 A,2d 673 (Pa. Super. 199 I), Moreover, issues not raised in a post-trial motion are
waived for purposes of appeal. See Pa.R.A.P. 302; Po. R. c.P. 227.1; Lalle
Ellterprises, IlIc. v. L.B. Foster Co., 710 A,2d 54 (Pa. 1998), See also Krystal Dev.
Corp. v. Rose, 704 A.2d 1102 (Pa, Super. 1997)(appellant failed to preserve issues for
review by directly appealing adverse verdict cntered in nonjury trial without first tiling
post-trial motions raising alleged errors by the trial court),
Accordingly, the appcal at No, 741 MDA 2001 is hereby QUASHED,
Per Curiam
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O"vid A. Slewcuk, Esq.
Prothonotuy
P"trici" A. Whitt.tker
Chi,rClerk
Superior Court of Pennsylvania
Middle District I'uhon Building, 200 N.l'hinl Street, 9.h Floor
U.nrisburg. PA 11101
717.772.1294
www.superior.court.su.te.p...US
August 7, 2001
RE: Turri, J, v. povilaitis, J, et ux
No. 741 MDA 2001
Trial Court Docket Number: 98-480
Dear:
Enclosed please find a certified copy of an order dated August 7, 2001 entered in the
above-captioned matter, Pursuant to the foregoing order. a certified copy of same, along with
the original record will be forwarded to the lower court in due course,
Very truly yours,
tw~
Patricia A, Whittaker
Chief Clerk
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Enclosure
cc: Ronald A, Turo, Esq,
The Honorable Kevin A, Hess
Judge
II'Mr, Curtis R. Long
Prothonotary
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PAGE f<<).
1 - 29
30 - 31
32
33
34
54
55 - 58
59 - 62
63
64
PYS510
1998-00480
Cumberland County Prothonotary'o Office
Civil Cnoe Inquiry
TURRI JOSEPII A (vo) POVII,AITIS JOliN F ET AIJ
Page
Refel'ence No,,:
Case Type., ..,: COMPLAINT - EJECTM8NT
Judgment..,." ,00
Judge Aosigned: IIESS KEVIN A
Disposed Desc,:
------------ CaGe Comments ---,---------
F i 1 ed.. .. . .. , :
'I'ime. . t . . . . . . :
Execution Oate
JUl'y Tria) , , , ,
Dioposed Oate.
Higl1er Crt 1,:
Higher Crt 2,:
1/27/1998
2:]2
0/00/0000
0/00/0000
7011 100DI\ 200
..t"...t,t.tt._.".",.._,.._,."_,_.,.,...,,._,__,*,.___"",..,.,.,._,____,.
General Index Attorney Info
TURRI JOSEPH A PLAINTIFF DUFFIE MARK C
201 RUNSON ROAD
CAMP HILL PA 17011
POVILAITIS JOliN F DEFENDANT
200 NORTH 3]RD STREET
CAMP HILL PA 17011
POVILAITIS SUSAN T DEFENDANT
i 200 NORTH 33RD STREET
/ CAMP HILL PA 17011
/
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t**...,.""."."""""".""..,.""",..,."",.....,.,.,.,.,.,.".......
* Date Entries
.t.."""""""""...,...".,_"",_""."",.,.,.t.tttt""""""".",-
1/27/1998
2/26/1998
4/13/1998
4/17/1998
4/17/1998
4/28/1998
10/28/1998
1/08/1999
5/07/1999
5/10/2000
5/25/2000
6/19/2000
6/22/2000
7/21/2000
12/06/2000
1/08/2001
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
COMPLAINT - CIVIL ACTION - EJECTMENT
-------------------------------------------------------------------
NOTICE OF DEPOSITION
-------------------------------------------------------------------
PRAECIPE TO REINSTATE COMPLAINT BY MARK C DUFFIE ESQ
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litigant.: P~VI~AITIS JOHN F
SERVED : 4 16 98 COMPL EJECTMENT
Costs....: $ 3. 0 Pd By: JOHNSON, DUFFIE, STEWART 04/17/1998
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litigant.: P{VlLAITIS SUSAN T
SERVED : 4 16/98 COMPL EJECTMENT
Costs....: $ 2.00 Pd By: JOHNSON, DUFFIE, STEWART 04/16/1998
-------------------------------------------------------------------
PRELIMINARY OBJECTIONS OF DEFENDANTS
-------------------------------------------------------------------
PLAINTIFF'S RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY RON TURO ESQ
DEFENDANT'S PRELIMINARY OBJECTIONS
-------------------------------------------------------------------
OPINION AND ORDER - DATED 5/7/99 - IN RE DEFENDANTS' PREL~MINARY
OBJECTIONS - DENIED - BY KEVIN A HESS J - COPIES MAILED 5/10/99
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR TRIAL - BY MARK C DUFFIE ESQ
-------------------------------------------------------------------
ORDER - IN RE PRETRIAL CONFERENCE - DATED 05-25-00 - HEARING SET
FOR FRIDAY JUNE 16 2000 AT 9:00 AM IN THE CHAMBERS OF THE
UNDERSIGNED - BY THE COURT HESS J - COPIES MAILED 05-25-00
-------------------------------------------------------------------
ORDER - IN RE PRETRIAL CONFERENCE - TRIAL IS SET ON 10/4/00 AT 9:30
AM COURT WILL VIEW PREMISES 10/2/00 AT 4:45
-------------------------------------------------------------------
ANSWER AND NEW MATTER
-------------------------------------------------------------------
REPLY TO NEW MATTER
-------------------------------------------------------------------
ORDER - DATED 12/6/00 - IN RE PRETRIAL CONFERENCE - AT THE REQUEST
OF COUNSEL FOR THE PLFF A PRE6RfAL CONFERENCE IN THE ABOVE
CAPTIONED MATTER IS SET FOR 1 8 01 AT 9:00 AM ~N THE CHAMBERS -
BY THE COURT KEVIN A HESS J C P ES MAILED 12/7/00
-------------------------------------------------------------------
ORDER - DATED 1/8/01 - IN RE PRETRIAL CONFERENCE - A VIEW WAS
CONDUCTED EARLIER IN AN EFFORT TO SETTLE THE MATTER THE CASE
Vtbt ~lIptrlor ~ollrt of ~rlllll~pl\Jnllln
~lttllIg lit jQnrrillbllrg
Joseph A. Turri
v.
NO. 741 MDA 2001
Common Pleas Court of
John and Susan Povilaitis
Cumberland County
No. 98-480
20 _' received from the Superior Court of
Pennsylvania, Harrisburg District, the
Certified Copy of Superior Court Order Dated 8-7-0 land Record in 1 Part
of the Court, in the above entitled case.
Signature
Date of Receipt
(Please Return to 200 N. 3'd Street, 9lh Floor, Harrisburg, PA 17101)
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^mnnll Ihe Reenllls IIl1d Pmeeedilllls ellmlled in Ihe enur! nf Cnmmnll l'lells in IInd fur the
In Nll,
CUMBERLAND
741 MDA 2001
98-480 CIVIL
in the CllmmnnweOlllh nf I'ennsylvllllill
ellunty nf
Terlll, 19 is enntllined the fnllnwing:
COPY OF
COMPLETE
DOCKET ENTRY
JOSEPH A. TURRI
v.
JOHN F. POVILAITIS
SUSAN T. POLILAITIS
SEE ATTACHED CERTIFIED DOCKET ENTRIES.
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1 - 29
30 - 31
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PYS510
1998-00480
TURRI
- ~
, 1mberland County prothonotar J Office
Civil Case Inquiry
JOSEPH A (vs) POVILAITIS JOHN F ET AL
Filed.. .. .. .. :
Time,..,..." :
Execution Date
Jury Trial...,
Disposed Date.
Higher Crt 1,:
Higher Crt 2,:
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Page
Reference No..:
Case Type" ",: COMPLAIN'!' - EJECTMENT
Judgment..., ,. ,00
Judge Assigned: HESS KEVIN A
Disposed Dese.:
------------ Case Comments -------------
1/27/1998
2:32
0/00/0000
0/00/0000
741 MD!\ 200
"
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********************************************************************...********
General Index Attorney Info
TURRI JOSEPH A PLAINTIFF DUFFIE MARK C
201 RUNSON ROAD
CAMP HILL PA 17011
POVlLAITIS JOHN F DEFENDANT
200 NORTH 33RD STREET
CAMP HILL PA 17011
POVlLAITIS SUSAN T DEFENDANT
200 NORTH 33RD STREET
CAMP HILL PA 17011
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*******.*******************************************************.*.*************,
* Date Entries
*******************************************************************************?
1/27/1998
2/26/1998
4/13/1998
4/17/1998
4/17/1998
4/28/1998
10/28/1998
1/08/1999
5/07/1999
5/10/2000
5/25/2000
6/19/2000
6/22/2000
7/21/2000
12/06/2000
1/08/2001
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - _ _ _ _
COMPLAINT - CIVIL ACTION - EJECTMENT
-------------------------------------------------------------------
NOTICE OF DEPOSITION
----------------..--------------------------------------------------
PRAECIPE TO REINSTATE COMPLAINT BY MARK C DUFFIE ESQ
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litigant.: POVltlITIS JOHN F
SERVED : 4/16 98 COMPL EJECTMENT
Costs....: $33. 0 Pd By: JOHNSON, DUFFIE, STEWART 04/17/1998
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litiqant.: PQVI4AITIS SUSAN T
SERVED : 4/16/98 COMPL EJECTMENT
Costs....: $12.00 Pd By: JOHNSON, DUFFIE, STEWART 04/16/1998
-------------------------------------------------------------------
PRELIMINARY OBJECTIONS OF DEFENDANTS
-------------------------------------------------------------------
PLAINTIFF'S RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY RON TURO ESQ
DEFENDANT'S PRELIMINARY OBJECTIONS
-------------------------------------------------------------------
OPINION AND ORDER - DATED 5/7/99 - IN RE DEFENDANTS' PREL~MlijARY
OBJECTIONS - DENIED - BY KEVIN A HESS J - COPIES MAILED 5/10/99
--------------------------------------------------.-----------------
PRAECIPE FOR LISTING CASE FOR TRIAL - BY MARK C DUFFIE ESQ
-------------------------------------------------------------------
ORDER - IN RE PRETRIAL CONFERENCE - DATED 05-25-00 - HEARING SET
FOR FRIDAY JUNE 16 2000 AT 9:00 AM IN THE CHAMBERS OF THE
UNDERSIGNED - BY THE COURT HESS J - COPIES MAILED 05-25-00
-------------------------------------------------------------------
ORDER - IN RE PRETRIAL CONFEREWCS - TRIAL IS SET ON 10/4/00 AT 9:30
AM COURT WILL VIEW PREMISES 10/2/00 AT 4:45
-------------------------------------------------------------------
ANSWER AND NEW MATTER
-------------------------------------------------------------------
REPLY TO NEW MATTER
-------------------------------------------------------------------
ORDER - DATED 12/6/00 - IN RE PRETRIAL CONFERENCE - AT THE REQUEST
OF COUNSEL FOR THE PLFF A PRE6R~AL CONFERENCE IN THE ABOVE
CAPTIONED MATTER IS SET FOR 1 8 01 AT 9:00 AM ~N THE CHAMBERS _
BY THE COURT KEVIN A HESS J C P ES MAILED 12/7/00
-------------------------------------------------------------------
ORDER - DATED 1/8/01 - IN RE PRETRIAL CONFERENCE - A VIEW WAS
CONDUCTED EARLIER IN AN EFFORT TO SETTLE THE MATTER THE CASE
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Commoowenlth of Pennsy(vnnin
County of Cumberlnnd
} ss:
I. Curtis R. Long . Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full. true and correct copy ofthc whole record orthc
casc thcrein statcd. wh~rein
Joseph A. TurrJ.
Plaintiff. and John F. Povilai tis
Susan T. povilaitis
In TESTIMONY WHEREOF. I
this 20th
Defendanl _. as thi: same remains of record
before the said Court at No, 98-480 of
Civil Term, A,D, (9_,
have hereunto set my hand and nffixed the seal of sai<l...QlUrt
da of ~ly A, D.. ~-=--.
By' 1J- ~~'>i1o,"rY
1 George E. Hoffer 'd t J d ~f~' h~ 0" , t
. resl en u gc 0 t c
Judicial District. composed of the County of Cumberlnnd, do certify that
C'n ri; ;" I> r "n g . by whom the annexed record. certificate and
allestation were mode and given, nnd who. in his own proper handwriting, thereunto subscribed his name
and affixed Ihe seal of the Court of Common Plens ofsnid County. was, at the time of so doing. and nowis
Prothonotnry in and for said County of Cumberland in
Ihe Commonwealth of Pennsylvania, duly commissioned nnd qualified toall ofwhosc acts as such full faith
and credit arc and ought to bc givcn as wcll in Courts of judicnturc as elsewhere. and that the said record.
certificate and allestation arc in due form of law and made by th p IC.
Commonwcalth of Pennsylvania
County of Cumberland
} ss:
I I:sidcnl.l udgc
I, Curtis R. Lonq . Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable George E. Hoffer, P.J.
by whom the foregoing alleslation was madc. and who has thercunto subscribcd his name, was. at the time
of making thereof. and slill is PresidentJudge of the Court of Common Pleas. Orphan' Court and Court of
Quarter Sessions of Ihe Peace in and for said County, duly Commissioned and qualified; to all whose acts
as such full faith and credit arc and ought 10 be given. as well in Courts of judicature as elsewhere,
IN TESTIMONY WHEREOF, I have hereunto
sel my hand and affixed the seal of said Court this
(~~f _ jUl _ A.D. :100-1-_,
BY!~A
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099999.00020/J",,"ary 20, 1998/MCD/P~104031
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JOSEPH A. TURRI,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.1f. tNo CIVIL TERM
Plaintiff
v.
JOHN F. POVILAITIS and
SUSAN T. POVILAITIS,
husband and wife,
CIVIL ACTION - EJECTMENT
Defendants
~~ TO DEEEND
TO THE DEFENDANT:
You have been sued in court, If you wish to defend against the claims set forth In the following
pages, you must take acllon within twenty (20) days alter this complaint and nollce are served, by entering a
wrillen appearance personally or by allorney and filing In wrillng with the court your defense or objecllons to
the claims set forth against you, You are warned that If you fall to do so the case may proceed without you
and a judgment may be entered against you by the court without further nollce for any money claimed In the
complaint or for any other claim or relief requested by the Plalnllff, You may lose money or property or other
rights important to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER 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, PA 17013
(717) 249-3166
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last said dividing line, North 77 degrees 32 minutes East, one hundred three and
twenty-four one hundredths (103.24) feet to a point; THENCE South 12 degrees 28
minutes East, one hundred one and sixteen one hundredths (101,16) feet to a point at
the northerly side of Logan Street; THENCE along the northerly side of said Logan
Street, North 88 degrees 25 minutes West, one hundred six and forty-nine one
hundredths (106.49) feet to a point, the Place of BEGINNING.
BEING Lot No, 53 on the revised Plan of Hollywood Development, which Plan Is
recorded In the Cumberland County R6corder of Deeds Office In Plan Book 8, Page
14.
BEING the same premises which Hollywood Development Company, Inc, a
Pennsylvania corporation, by Its Deed dated June 14, 1957, and recorded on June 18,
1957, In Deed Book W, Volume 17, Page 264, In the Office of the Recorder of Deeds
of Cumberland County, Pennsylvania, granted and conveyed unto the said Grantor
and the said Grantee, having thereon erected a dwelling house known as 201 Runson
Road, Camp Hili, Pennsylvania, 17011.
4. Plaintiff acquired title to the above-described real property from Corethla M. Turri, on August
6, 1973, through a Deed recorded In the Recorder of Deeds Office of Cumberland County, on Page 645 In
Deed Book H, Volume 25, A true and correct copy of the said Deed Is attached hereto and Incorporated
herein as Exhibit A",
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5, Hollywood Development Company, Inc, subdivided PlaintlWs property as Lot No, 53 on the
General Plan of Hollywood Development. Said Plan was recorded In the Office of the Recorder of Deeds of
Cumberland County, Pennsylvania, on May 13. 1955, in Plan Book 7, Page 27, A true and correct copy of
said Plan Is attached hereto and Incorporated herein as Exhibit "B".
6. PlaintlWs property, Lot No, 53, abuts a twelve (12') foot alley shown on the General Plan of
Hollywood Development. (See Exhibit "B"),
7. Defendant Is the owner of real property herein described:
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""'NIUIII/Jnllllll'Y 21, I!IlJH/MC:Il/,,^Il~lI
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ALL THAT CERTAIN tract or lot of land situate In the Borough of Camp Hili,
Cumberland County, Commonwealth of Pennsylvania, more particularly bounded and
described as follows, to wit:
BEGINNING at a point at the Intersection of the northern side of Logan Street with
the western side of North 33'd Street; THENCE along the northern side of Logan
Street, South 77 degrees 32 minutes West, a distance of 125 feet to a point on the
eastern side of a 12-feet wide alley; THENCE along the eastern side of said alley,
North 12 degrees 28 minutes West, a distance of 105 feet to a point at the dividing
line between Lots Nos, 136 -A and 137-A on the Plan of Lots referred to hereinafter;
THENCE along said last mentioned dividing line, North 77 degrees 32 minutes East,
a distance of 125 feet to a point on the western side of North 33rd Street; and
THENCE along the western side of North 33rd Street, South 12 degrees 28 minutes
East, a distance of 105 feet to a point, the Place of BEGINNING
BEING Lot No. 136-A on a Plan of Re-Subdlvlslon of Lots Nos, 134 through 150 and
fifteen (15') feet of Lot No. 151, recorded In Plan Book 12, Page 28, Cumberland
County Records,
BEING at the same time Lot Nos. 134, 135, 136, 137 and 138 and the southern 5
feet of Lot No, 139 on a Plan of Lots of Belvoir, recorded In Plan Book 1, Page 16,
Cumberland County Records,
,
8, Defendants acquired title to the above-described real property on July 6, 1994, through a
Deed recorded in the Recorder's Office of Cumberland County, on Page 326 In Deed Book 108, Defendants ;
acquired title by the same from Paul A, Bradigan and Elizabeth K. Bradlgan, husband and wife, A true and
correct copy of said Deed is attached hereto and incorporated herein as Exhibit "C".
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9. Paul A, Bradigan and Elizabeth K. Bradigan, his wife, acquired title to the above-described
real property on April 5, 1971, through a Deed recorded in the Recorder's Office of Cumberland County on
Page 436 in Deed Book 24-A, Paul A. Bradigan and Elizabeth K, Bradigan, his wife, acquired title from
I
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("~}1I(MXIIIIIIII",,'Y 21, I'1JRIMCIlII'^IU~1I
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Waller E, Knippel and Corinne N, Knippel, husband and wife. A true and correct copy of said Deed is
allached hereto and incorporated herein as Exhibit "D",
10, Walter E, Knippel and Corinne N. Knippel, his wife, acquired title to the above-described real
property on April 22, 1970, through a Deed recorded in the Office of the Recorder of Deeds of Cumberland
County on Page 446, In Deed Book 23-P, Walter E, Knippel and Corinne N, Knippel acquired title by the
same from James E. Grandon and Virginia Grandon, his wife, A true and correct copy of said Deed is
allached hereto and Incorporated herein as Exhibit "E",
11. Each and every Deed in the aforementioned chain of title beginning in 1970 (Exhibit "E") to the
present owners the Defendants In 1994 (Exhibit "C") refers to the twelve (12') foot alley abulling the west side
of Defendants' property,
12. Plan of Lots of Belvoir, recorded in Plan Book 1, Page 16, Cumberland County Records lays
out a twelve (12') foot alley abulllng Lot Nos. 134, 135, 136, 137 and 138 and the southem five (5') feet of Lot
No, 139 to the west, or Defendants' property. A true and correct copy of said Plan Is allached hereto and
Incorporated herein as Exhibit "F".
13, Plaintiffs property and Defendants' property each abut a portion of a twelve (12') foot alley
which runs north and south through of the Borough of Camp Hill as laid out by the Borough of Camp Hill in
the Plan of Streets, dated 1978, revised 1981 and 1988, A true and correct copy of said Plan is allached
hereto and incorporated herein as Exhibit "G",
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"~~~mUIlIl"....ry 21, I'~JHIMCI)II'^RI"'"'\II
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COUNT II - TRESPASS
Joseph A. Turri v. John F. Povllaltls and Susan T. Povllaltls
'.:~I.
26, Paragraphs 1 through 25, Inclusive of Count I are Incorporated herein by reference as though
here set forth at length,
. .
27. As a result of maintaining the above-described fence on the herelndescrlbed twelve (12') alley,
the Defendants have deprived the Plaintiff as well as the public of the usa and enjoyment of the property to
Plaintiffs and the public's damage In an amount to be determined.
WHEREFORE, Plaintiff requests that this Court enter a judgment In favor of Plaintiff and against
Defendants, John F. Povllaltls and Susan F. povilaitis, for money damages In an amount not to exceed
Thirty-five Thousand ($35,000,00) Dollars.
DATED: ~I!/J ~/,1'i1f
Respectfully submitted,
JOHNSON, DUFFIE, STEWART &
By: -?2- L~r. /
a C.Duffie
Attorney 1.0, No, 75906
301 Market Street
p, O. Box 109
Lemoyne, PA 17043-0109
(717) 761-4540
Atlomeys for Plaintiff
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I, JOSEPH A. TURRI, do verify that the statements made In the foregoing Complaint are true and
correct to the best of my knowledge, information and beUef, I understand that false statements made herein
are subject to the penalties of 18 Pa, C,S, !i 4904 relating to unsworn falsification authorities.
DATED: ~, /cJ, 1991
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.Ilode till!
.\'llleteellhlt/l(/l'etl olld sevonty-th~73) ~
~tbuttll CORETHIA M. TURRI,/of cam:'H?l1, Cumborland County,
Pennsylvania, and formor1y of Harrisburg, Dauphin County,
Pennsylvania,
(lwrcinu/tcr callm/ Uw OrClntor ), 01 the one part, and
JOSEPH A. TURRI, her husband, of the same place,
(hel'eino!ter "oiled the Grollte" ), a! the other part:
~ihtt!i!OtH! ,1'llllt the said Orantor ~
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rlt'lliot1iixltll~!JolJooMrxAAIt
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has
granted, bargained, ,'1old, alielled,
cllJ'eon'cd, released, CUll.lJcyml and cCJllflrmccl, allel by tltes,! pl'mwltts does :frant,
bUJ':}uilt, sell, uliclt, 61l/COn', release, convey and confirm. unto the said Grantee,
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his heirs
alld .ls8i~1l8,
I ALL THAT CERTAIN parcel of land situate in the Borough of Camp Hill,
County of Cumberland and State of Pennsylvania, more particularly
bounded ,and described as follows, to wit:
BEGINNING at a point at the northeasterly corner of the intersection
of Runson Road and Logan Street; thence along the easterly side of
RunsonRoad, north twelve (12) degrees twenty-eight (28) minutes west
seventy-five (75) feet to a point at the dividing line between Lots
Nos. 53 and 54, on the hereinafter mentioned Plan of Lots; thence along
the last said dividing line, north seventy-seven (77) degrees thirty-two
(32) minutes east one hundred three and twenty-four one-hundredths (103.24)
feet to a point; thence south twelve (12) degrees twenty-eight (28)'
, minutes east one hundred one and sixteen one-hundredths (101.16) feet
~ to a point at the northerly side of Logan Street; and thence along the
northerly side of said Logan Street, north eighty-eight (88) degrees
twenty-five (25) minutes west one hundred six and forty-nine one-
hundredths (106.49) feet to a pOint, the PLACE OF BEGINNING. (All
bearings are measured from the true meridian,)
BEING LOT No. 53 on a Revised Plan of Part of Hollywood Development,
which Plan is recorded in the Cumberland County Recorder of Deeds Office
in Plan Book 8, Page 14.
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BEING the same premises which Hollywood Development Co. Inc., a Pennsyl-
vania corporation, by its Deed dated the 14th day of June, 1957, and
recorded on June 18, 1957, in Deed Book W, Volume 17, at Page 264, in
the office of the Recorder of Deeds of Cumberland County, Pennsylvania,
granted and conveyed unto the said Grantor and the said Grantee, having
thereon erected a dwelling house k?~wn as 201 Runson Road, Camp Hill,
Pennsylvania 17011. BOOK /"2,'>r.ICE 615 EXHIBIT . ^.
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Sial. 0' PKNN9VLVANIA
Coun'r 01 CUHBERLAND-I.
Onlhll,lhl ~-U1
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PAUL A. BR~OAH and
.1994 . bd.tI III',
lh, 1011111.,.111",11 omeor, p.nonol/r oppoolld
hi. wlh,
BLIZABBTH K. DRADIOAN,
lno.",,, 10.... 10' 10lldoelo,II, p,onnllo b, Ih. P,IIOII . wh.It 110m.. ar. I JublCllb.d 10 Ih. wllh.
In Inllll,lm'n'. olld Debo....l.dg.d Ihal . th.y ...clIl.d lam. '0' lht plltp.II' U'.&l4
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I",rkll ~IDS!A1E AISTRf(! CO
10101102
COMMONweALTH Of PENNSYLVANIA
COllrlltOI~2~
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BETWEEN
WALT&k E. XIUPPl::L and CORDmE 'N. XNIP~L, hi. wile, \It Cup Hi 11, ,
CUZl\borlG~ C~unt.y, Ptlrvi:l)'lv.n1a, ...................---.. 0'Oftlo,8,
o,d
PAUL A. BRADlDAN and ELIZABETH X. BnADlOAN, hill wifo, or ClUllp H111,
Cumborl.nd County, P8nn311~.n18. ......_.._-_.._--~----_....-
O,on,..8 I
WITNESSETH, thai In contldtlollon 0'
-O^Il;
jn hand pold. thl ,.ulpl wh."o' h h"lby oclnowl.dllld, th, laId 9'01110' I do
conny 10 thl lold v'onl,. II,. their heira Dord 81S1I1&nll,
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ALL that. cortain tract or lot at l.nd altuote 1n tho Borough at Camp Hill,
Cl.tdMrland Count.y, PennsylvDnb. lIlere p4rt1cubrl,y bounded and daacr1bed as
10Uovo, to wit.. .
mnINNDD at a point. at the 1ntel'lSectJ.on or the northern dde or Logan St.reet
with t.ho woatorn II1de or Nort.h ))rd Strootl thenco a10~ the ,nart.horn ddo or Loenn
Stroet, South 71 degreee )2 minutes trleat, a diatance or 12$ toot to . point on tho
ooatern Bide or a 12 teot. wida aUo)'} Ulonce along tho eutern Gido or said allo)'
NorUI 12 degrooa 28 n1nuLes Weot, 0 distonce or lOS toot to 0 point at. tho dividing
Uno botween Loto Noa. U6-A .Iud 1)7-A on tho plan or lots :r.orerred to hereinnrterJ
thonco alone IIdd laat. mentioned dividirc 11m north 77 docreos 32 minutos 1-:o.et.,
o dilStance or 12$, toot. to 0 point on t.he wosLern side or Nort.h ))rd St.roet.} orxl thonco
olong tho wcotern .sido or llorth )31'': Stroot South 12 degrce:J 28 r.dnut.oll East., a
dIstance or 10$ toot to a p;)lnt., tho placo or BmDnlINJ.
BEDD Lot. No. U6-A on a plan at rO-Dub:liv1a1on or %Dtll NOli. 134 throuCh 1$0 and
lS teet ot Lo~ No. 1$1, racordod 1n Plan Book 12, pace 26,Cumborland County Rocordll.
BEDI'O at tho SIIIlO Ulna Lot:! Nos. 1)4, 135', 1)6, 137, 136 and t.ha eout.horn
S teet. or %Dt No. 139 on a plon ot lata or Belvolr, recorded in Plon Book 1, pace
16, Cumberland Count)' roco:rds. '. ,
m:no the DAn10 proMiDO:l ~h1ch J~s E. Orandon GOO Virginia 01'0000", hID wito,
1:tf t.heir Dad dated April 22, 1970 and' recorded 1n tho C\Cllborlam Count.y Recorder
ot Cuod" Orrico in Dead Book 23-P, poge LL6, granted and convoyod unto Woltor E.
Knippel and Corinna N. Knippel, hia \dIe, Orc.nt.orD heroin.
Th1s convoYMlco is trOlTl parent.' to daughter ard Don-in-low, and
is tho:rotoro exempt trOlll all roalty t.ransfer t.axes.
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EXHIBIT "D"
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$101. of MJISrI.'/ANIA
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ho"," 10 IU lor 1011l'oClo,II, pr.""llo b,'h, p.noll II whol' 110m. II oro .;~,;..II}lbl(~~JJ,'~.I~.~.,,:i1h.~,
'n 1lIllIum'IlI, and odllo....'.dQ.d thol ~hO:f '.Kwl.d lam. far Iht pulPa{.(&t....!~.:." canlol.f'~,~. \ ':
IN WITNESS WHEREOf, I'h",unto 1.1 Illy hond and OtliclOII'OI~ ~'-'" '.'J '-:'.'1.. , . l.., '.'!
r, .....: . '';'''\.,':, ..'
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NOTAl' PUlL,r ,y\~~/"".'_""; ", .~:
~901 Mon., SI. IHMp!f,'I T. .,,:.' f..;':T~,:';;;\~L
CAJ.l..p Hill, PI,. /701.1. Till.' 0' O~CI'.'
'M)' CO/NI"I.......r.., '~;I'" I"';'~
I do:t."by u;lify lhot th. P'le;'. rllld.nc. olld compl.l. p~t officer odd"lI 01
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JOSEPH A. TURRI,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PlaIntiff
v.
NO. 98-480
CIVIL TERM
JOHN F. POVILAITIS and
SUSAN T. POVILAITIS, CIVIL ACTION. LAW
Defendants
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NOT#Ce OF DEPOSIT lOt/. .
TO: PAUL BRADIGAN and
ELIZABETH BRADIGAN
938 Emily Drive
Mechanlcsburg, PA 17055
Hughes, Albright, Foltz & Natale
Reporting Service, Inc.
115 Pine Street
Harrisburg, PA 17101
AND NOW, this ~.,~~ day of February, 1998, you are notified of the following deposition:
1.
Deponents:
Paul Bradlgan and Elizabeth Bradlgan
2.
Time:
1:00 P.M. on Tuesday, March 17, 1998
3.
Place:
Law Offices of Johnson, Duffie. Stewart & Weidner
301 Market Street, Lemoyne, Pennsylvania, 17043
4.
Deponent to bring:
All records In your care, custody and control, or to which
you have access, related to the above case
By:
JOHNSON, DUFFIE, STEWART &
ark C, Duffie
1.0. No. 75906
301 Market Street
P. O. Box 109
Lemoyne, PA 17043-0109
(717) 761-4540
Attorneys for Plaintiff
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JOSEPH A. TURRI,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 98-480 CIVIL
v.
JOHN F. POVlLAITIS and
SUSAN T. POVILAITIS,
Defendants
: CIVIL ACTION - EJECTMENT
NOTICE TO PLEAD
TO: Joseph A. Turri
c/o Mark C. Duffie, Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
You are hereby notified to file a written response to the enclosed Preliminary
Objections within twenty (20) days from service hereof or a judgment may be entered
against you.
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Respectfully submitted,
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TURO LAW OFFICES
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32 South Bedford Street
Carlisle, PA 17013
(717) 245-9688
Attomey for Defendant
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WHEREFORE, Defendants respectfully request this Honorable Court to grant
their preliminary objection In the form of a demu"er and dismiss Plaintiffs complaint
for ejectment with prejudice.
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III. PRELIMINARY OBJECTION IN THE FORM OF
LACHES TO CLAIMS FOR EJECTMENT AND TRESPASS
11.
Paragraphs 1 through 10 are incorporated herein by reference as if fully
set forth.
,
12.
The equitable defense of laches Is available where Plaintiff failed to act
diligently in asserting his rights in a timely manner, and this lack of diligence resulted
in prejudice to Defendant. E.E.O.C, v. Great Atlantic & Pacific Tea Co" 735 F.2d 69
(CA3 Pa. 1984).
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in an ejectment action, even though ejectment is an action at law. Minahan v.
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Buraess, 37 D. & C.3d 637.
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14. A court may find a suit barred by laches in the context of preliminary
objections where the existence of laches is clear from the face of the record. In re
Marushak's Estate, 413 A.2d 649, 488 Pa. 607 (1980).
15. Paragraph 19 of Plaintiffs complaint states that the Bradlgans,
predecessors in title to Defendants, used portions of the real property in dispute,
since Plaintiff's acquisition of his abutting real property on August 6, 1973.
16. Plaintiff makes no allegation in his complaint that he ever attempted to
eject the Bradigans from the real property in dispute.
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17. Paragraph 23 of Plaintiffs complaint states that Defendants erected a
fence on the disputed real property in June, 1996. However, Plaintiff waited until
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January 27, 1998 to file suit against Defendants.
18. Plaintiff's causes of action are barred by laches because he did not
bring suit until 25 years after the predecessors In interest to Defendants had used the
real property in dispute, and 2 years after Defendants had erected the fence.
19. Defendants have suffered prejudice in that they incurred the expense of
erecting the fence without any waming from Plaintiff that he feels Defendants had no
right to do so.
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20. It would be inequitable to allow Plaintiff to seek the removal of the fence
now, where he sought no legal remedy to prevent the erection of the fence two years
ago.
WHEREFORE, Defendants respectfully request this Honorable Court to grant
Defendants' preliminary objections in the form of lachGs and to bar Plaintiffs
complaints for ejectment and trespass with prejudice.
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Respectfully submitted,
TURO LAW OFFICES
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Ron Turo, Esquire
32 South Bedford Street
Carlisle, PA 17013
(717) 245.9688
Attorney for Plaintiff
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JOSEPH A. TURRI,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-480. CIVIL
CIVIL ACTION - EJECTMENT
Plaintiff
v.
JOHN F. POVILAITIS and
SUSAN T. POVILAITIS,
Defendants
PLAINTIFF'S BESPONSEKJ.
DEEENDANTS' PRaJMlNARY OBJECTIONS
AND NO~ comes the Plaintiff, JOSEPH A. TURRI, by his attorneys, Johnson, Duffie, Stewart &
Weidner, and files the following response to Defendants' Preliminary Objections,
I. DEMURRER TO CLAIM FOR EJECTMENT
1. Denied. In the Commonwealth of Pennsylvania. to maintain an ejectment action, Plaintiff must
have title with a right of continued possession, OR is must appear that the Plaintiff had actual bona fide
possession, was ousted by Defendants and has an immediate right to possession. Weidner v. LeTort
Regional Authority, 26 D.&C. 3d 726 (C.P. Cumberland County. 1758 Civil, 1982); citing Bondall v.
Bradford Gas Company, 225 Pa, 338, 74 A. 207, 26 L.R.A. (NS) 614 (1909); Wood v. Praul, 217 Pa, 293,
66 A, 528 (1907); and Dice v. Reese, 342 Pa. 379, 21 A. 2d 89 (1941).
2. Denied. In an ejectment action, Plaintiff must only show that it appears that he/she had actual
bona fide possession of the lands, Wood v. Praul. 217 Pa. 293, 66 A. 528 (1907),
3, Admitted.
4. Denied. Plaintiff avers in Paragraph 19 of the Complaint that Plaintiff has in the past used the
real property in dispute with the Defendants. Plaintiff avers in Paragraph 20 that Plaintiff has used the real
property in dispute "to store firewood. a boat, an automobile as well as other Items of personal property.
Plaintiff avers In Paragraph 22 that all owners of land on the Subdivision Plan attached to Plaintiffs
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Complaint as Exhibits "B", "F" and "H" have private rights of use. Plaintiff, In facl, Is one of those property
owners who have acquired these private rights of use.
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5. Denied. Plaintiff was, In fact, an actual bona fide possessor of the real property in dispute and
has acquired private rights of use as well as a continued right to possess.
6. Admitted, While true, a demurrer is not to be sustained unless the law is clear that there Is no
possible recovery. Clanfranl v. Commonwealth State Employees Retirement Board, 505 Pa. 294, 479
A.2d 468 (1984). If any theory of law will support the cause of action, the Preliminary Objections must be
denied. Id.
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WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny the Preliminary Objections
In the form of a demurrer to claim for ejectment.
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DEMURRER TO CLAIM FOR TRESPASS
7.
Paragraph of Incorporation to which no responsive pleading is required.
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8. Denied. Plaintiff, in a trespass action, must show by preponderance of the evidence actual
possession or right to immediate possession and a tortuous deprivation of that right. Roncace v. Welsh, 14
A.2d 616 (Pa. Super. 1940).
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9, Denied. Plaintiff avers rights of use and possession. An action for trespass Is founded on
possession. Roncace v. Welsh, 14 A.2d 616 (Pa, Super. 1940),
10. Denied. Plaintiff has a cause of action in trespass because Plaintiff has alleged that
Defendants have encroached upon real property possessed by Plaintiff.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny the Preliminary Objections
In the form of a demurrer to claim for trespass.
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CERTIFICA TE OF SERVICE
I, hereby certify that 1 served a true and correct copy of the Plaintiffs Response to Defendants'
Preliminary Objections upon Ron Turo, Esquire, by depositing same In the United States Mall, first class,
postage pre-paid on 0 lA.. 3!
,1998, from Lemoyne, Pennsylvania, addressed as follows:
RON TURO, ESQUIRE
32 South Bedford Street
Carlisle, PA 17013
JOHNSON, DUFFIE, STEWART
By:
ark C. Duffie, Esq
ttorney 1.0. No. 759
301 Market Street
P.O. Box 109
Lemoyne, Pennsylvania 17043
(717) 761-4540
Attorney for Plaintiff
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
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(M\. . be typewritten and subnitted:.. dup1..icllte)
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TO THE PROTHONOTAR~ OF CUMBERLAND COUNTY:
Please list the within matter for the next Arg\mlent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
( Plaintiff)
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Joseph A, Turri,
vs.
John & Susan Povilaitis,
(Deferxiant)
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No. 98-480
CiviJ.
19
1. State matter to be argued (i.e.. plaintiff's llDtion for new t:riaJ.. defendant's
demurrer to complaint. etc.):
Defendant's Preliminary Objections
2. Identify COlUlSel. who will argue case:
Mark C, Duffie
(a) for plaintiff: 301. Market Street
l\ddress:
P,O, Box 1.09
LEmoyne, PA 1.7043
(b) for defendant: Ron Turo
Address: 32 South Bedford Street
Carlisle, PA 1.701.3
3. I will notify all parties in writing within tIo.o days that this case has
been listed for argunent.
4, Argunent Court Date:
March 3. 1999
Dated:
.
Ih/97
Iz/tLZl
Attorney for Defendants
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98-480 CIVIL
Hill, Pennsylvania. It is accepted by both purties tllUtthe alley was set aside for dedication as a
public road to the Borough of Camp Hill in 1955, but was never acceptcd by the Borough. ~
Preliminary Objections of Defcndants, para. 3, and Plaintiffs Response to Defendants'
Preliminary Objections, para. 3.
The defendants have filcd preliminary objcctions in the form of a demurrer to the
plaintiffs claims for ejectment and trcspass pursuant to Pa.R.C.P. 1028 (a)(4). "The question
presented by the demurrer is whether, on the facts averred, the law says with certainty that no
recovery is possible ... A demurrer should not be sustained if there is any doubt as to whether the
complaint adequately states a claim for relief under any theory." Sevin v, Kelshaw, 417 Pa.
Super. 1,7,611 A.2d 1232, 1235 (1992),
The defendants assert that the plaintiffs complaint is legally insufficient in that their
claims for ejectment and trespass do not allege exclusive possession of the alleyway. The
defendants also allege that the plaintiff claims a right to use the alleyway because of its public
nature, and that the complaint must fail because the alleyway was never accepted by the Borough
of Camp Hill for public use.
"It is settled law in Pennsylvania that where the side of a street is called for as a boundary
in a deed, the grantee take title in fee to the center of it, if the grantor hud title to that extent, and
did not expressly or by clear implication reserve it." Rahn v, Hess, 378 Pa, 264, 270, 106 A.2d
461,464 (1954). Additionally, when the public rights of use of an alley are lost by failure ofa
borough to accept dedication, "the purely private rights of easement of individual property
owners in the plan oflots to use the alley or way is not extinguished." Riek v, Binnie, 352
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98-480 CIVIL
prejudiced by the delay in bringing suit. .w. at 52 I, 522, 591 A.2d at 7 I 4.
The defendants state lImtthey have incurred expenses to construct the fence, and that it
would be prejudicial to force them to remove it from the alleyway. They also assert that they
understood that the property belonged to them since the time they acquired it in 1994, and that
the plaintiff did not assert any claim or right to use the property at any time. The plaintiff,
however, responds that he previously shared the alleyway with the defendants and their
predecessors in title, at times storing boats, cars and other items in the alley. After the fence was
built, the plaintiff delayed in filing suit in an attempt to resolve the conflict amicably. We are
ORDER
satisfied that the doctrine of laches has no application to the plaintiffs actions in this case.
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AND NOW, this r- day of May, 1999, the preliminary objections of the
defendants arc DENIED.
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BY THE COURT,
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For the Plaintiff
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For the Defendants
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Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
98-480 CIVIL
CIVIL ACTION - LA W
vs.
JOHN F. POVILAITIS and
SUSAN T. POVILAITIS, husband
and wife,
Defendants
IN RE: PRETRIAL CONFERENCE
ORDER
AND NOW, this 2!;' day of May, 2000, pretrial conference in the above
captioned matter is set for Friday, June 16,2000, at 9:00 a.m. in the Chambers of the
undersigned.
BY THE COURT,
Mark C. Duffie, Esquire
For the Plaintiff
Ron Turo, Esquire
For the Defendants
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: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 98-480
JOSEPH A. TURRI,
Plaintiff
JOHN F. POVILAITIS and
SUSAN T. POVILAITIS,
Defendants
: CIVIL ACTION - EJECTMENT
ANSWER AND NEW MATTER
1. Admitted
2. Admitted
3. The Defendants are without specific knowledge or information to respond
to this item.
4. The Defendants are without specific knowledge or information to respond
to this item.
5. Admitted
6. Denied. It is denied that Plaintiffs property abuts an alley. Plaintiffs deed
makes no reference to abutting an alley.
7, Admitted.
8. Admitted,
9, Admitted to the extent reflected in the documents. Defendants have no
first hand knowledge of the transaction.
10. The Defendants are without specific knowledge to respond to this item,
11, Admitted,
12. Admitted.
13. Admitted in part and denied in part. Admitted to the extent that said alley
is abutted by Plaintiff and Defendants' property. Any inference that said
alley is, indeed, an alley is denied.
14. Admitted in part and denied in part. Defendants admit that the property
was originally intended to be an alley. Defendants deny that such
property is currently an alley.
15. Admitted to the extent reflected in Plaintiffs Exhibit "H".
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18.
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20.
21.
22.
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24.
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26.
27.
28.
29.
30.
31.
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Admitted to the extent reflected in Plaintiffs Exhibit "I",
The Defendants are without knowledge or Information as to whether any
taxes have been paid on the property. It is denied that a 12-foot right-of-
way exists between Plaintiffs and Defendant's property.
Admitted to the extent reflected in Plaintiffs Exhibit "K".
Denied. Paul and Elizabeth Bradlgan (Bradigans) never shared the
property, herein called "alley" with the Plaintiff.
Denied. Plaintiffs sole attempts to use the property occurred after the
Defendants acquired the property from the Bradigans. Plaintiff never used
the property during the Bradlgan ownership of the residence at 200 North
3'd Street, Camp Hill, Cumberland County, Pennsylvania.
Denied. At no time was the property, herein "alley", used as a pedestrian
thoroughfare and a bike path.
This is a question of law and cannot be admitted or denied.
Admitted to the extent that said fence encompasses the entire 12-foot
"alley" and that it abuts Plaintiffs property.
No answer is applicable.
Admitted.
No answer is applicable.
Denied. This is a question of law to which no answer is necessary.
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NEW MATTER
Defendants acquired a building permit from the Borough of Camp Hill to
erect the fence at its location.
The Borough of Camp Hill has no intention of erecting an alley over the
property.
The properties adjoining said "alley" have been developed into residential
yards.
Plaintiff had knowledge that a fence would be erected and offered to pay
half the cost.
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008055,00004/7 .19,OOIMCDIDCPI136428 ,-,
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JOSEPH A. TURRI,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-480 CIVIL TERM
Plaintiff
v.
JOHN F. POVILAITIS and
SUSAN T. POVILAITIS,
husband and wife,
CIVIL ACTION - EJECTMENT
Defendants
BEPL Y TO NE.W..MA TTER
28. Plaintiff has no knowledge or information pertaining to the averments set forth in paragraph 28
and strict proof thereof is demanded at trial.
29. Plaintiff has no knowledge or information pertaining to the averments set forth in paragraph 29
and strict proof thereof is demanded at trial.
30. Plaintiff has no knowledge or information pertaining to the averments set forth in paragraph 30
and strict proof thereof is demanded at trial.
31, Denied. By way of further response. Plaintiff had no knowledge that any fence would be
erected over any portion of the alley in question.
32. Denied,
33, The facts contained in paragraph 33 are those of demand and do not responsive pleading. In
the alternative the same Is denied.
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WHEREFORE, the Plaintiff respectfully requests this Honorable Court to enter a Judgment on
Plaintiffs favor on the Complaint.
Respectfully submitted.
JOHNSON, DUFFIE, STEWART & WEIDNER
Mark . uffie
Attomey 1.0. No. 75906
301 Market Street
P. O. Box 109
Lemoyne, PA 17043.0109
(717) 761-4540
Attorneys for Plaintiff
By:
DATED: July lL.. 2000
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AND NOW, this ~ crl\. day of July, 2000, the undersIgned does hereby certify that he did serve a
copy of the foregoing Reply to New Maller upon counsel for the Defendants by causIng same to be deposited
In the United States Mall. first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows:
Ron Turo, Esquire
28 South Pitt Street
Carlisle. PA 17013
JOHNSON, DUFFIE, STEWART & WEIDNER
ark C. Duffi
Allomey 1.0. No, 5906
301 Market Street
p, O. Box 109
Lemoyne, PA 17043-0109
(717) 761-4540
Allomeys for PlaIntiff
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Deeds inlllul for Cumberlund County on June I K, 1957. Corelhiu M, Turri convcycd her interest
in the property to the pluintiffby deed duted August 6, 1973.
2. The defendunts reside ut 200 N. 33rd Street, Cump Hill, Cumberlund County,
Pennsylvuniu 170 II. The defendunts ucquired title to their property by deed dated July 6, 1994.
3. Puul ^' Bradiganund Elizubeth K. Brudigan, husband and wife, were the predecessors
in interest to 200 N. 33'd Street. They conveyed their property to the defendants on July 6, 1994.
The Bradigans acquired title to 200 N, 33'd Strcet from Walter E. Knippel and Corinne N.
Knippel by deed dated April 5, 1971,
4. The defendunts' property was originully subdivided by the Plan of Lots of Belvoir,
recorded in Cumberland County Plan Book I, Page 16, and dated June 27,1906.
5. On the Plan of Lots, the defendants' property is identified as lots 134, 135, 136, 137,
138 and the southern five feet orIot 139,
6. The defendants' property was resubdivided onu plan ofresubdivision orIots 134
through ISO and fifteen feet orIot 151, dated July 21. 1961, and recorded in Plan Book 12, Page
28 in the Office of the Recorder of Deeds in and for Cumberland County. The defendants' lot is
identified as # 136A on said Plan of Resubdivision,
7. The defendants' property is also the subject ofa Plan of Property for Paul A. and
Elizabeth K, Bradigan dated April 21. 1971. This plan is unrecordcd.
8, The plaintiffs propcrty was originally subdividcd as lot #53 on a gencral plan of
Hollywood Devclopmcnt. This plan was recordcd inlhe Officc ofthc Recorder of Deeds in and
for Cumberland County on May 13, 1995, in Plan Book 7, Pagc 21.
2
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98-0480 CIVIL
9. Both plaintiffs lInd delcndllnts' properties lIbut was is identified liS lItwclve-footlllley
lit the rear of elleh of their respective properties, Loglln Street borders elleh of the properties to
the south. Runson Circle lIbuts the plllintiffs property to the west lInd North 33"1 Street lIbuts the
defendants' property to the ells\.
] O. Title searches have revealed that the lands identified on the Plan of Bclvoir and the
lands identified on the Plan ofI-lollywood Development do not have a common grantor or, ifin
fact there was II common grantor, it predates the records of Cumberland County.
1 ]. The twelve-foot alley laid out in the Plan of Belvoir and identified as an existing
twelve-foot alley on the Plan of Hollywood Development lies entirely within the Plan of Bel voir.
The stipulation goes on to indicate that the Borough of Camp Hill has identified the alley
at issue on its borough street map liS recently as ] 978, It also identified the alley on its street and
zoning map of October 2, 1956,
The parties conceded that the alleyway in question was never, in fact, opened or accepted
by the borough as a public road. Moreover, the alleyway was never part of the subdivision
which includes the plaintiffs lo\. Thus, the plaintiff has no rights with respect to the alleyway in
fee, The issue. as framed by the parties, is whether the plaintiff has a prescriptive easement with
respect to the alleyway in question.
An casement by prescription arises by actual, continuous, adverse, visible, notorious and
hostile possession of the property in question for a period of twenty-one years. See Hash v.
Sofinowski, 337 Pa,Super. 451,487 A,2d 32 (1985), As noted above, the Turris purchased their
property in ] 957. At that time and into the 1960s the "alley" was a small stream. The adjoining
lots in the Belvoir tract were undeveloped. Eventually, drainage pipes were installed in the
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9K-04KO CIVIL
stream and it was then that thc arca cumc to bc uscd us un allcy. At no point prior to 1971,
however, had there becn n twcnty-onc-ycar period during which thc plllintiff muintained his use
of the contested strip of land as a public allcy. Thc question then bccomes what was the nature
of Mr. Turri's use of the alleyway Ii-DIll and after the time thc Bradigans acquired title to 200
North 33'd Street. In this regard, we find thc testimony of Mrs. Elizabeth Bradiglln both credible
and instructive.
She described her property in 1971 as bcing an open field. When her home was
constructed, the Bradigans planted their lawn up to the bank which marks the beginning of the
backyard of Mr. Turri. They, in essence, considered the "alley" which is the subject of this
litigation to be part of their backyard. This has been thc position taken by all of the other
neighbors in that portion of the Bclvoir Development. As early as 1965, their neighbor, Richard
Placey, who lives at 240 North 33'd Street, incorporatcd the alleyway into his backyard and
driveway. In 1972, Mrs. Bradigan indicated to the Turris that their children could not longer ride
motorized bicycles on the alleyway. Mrs. Bradigan indicated that while Mr. Turri did
occasionally have access to the rear of his yard by entering onto the former alleyway, it was
always with the permission of the Bradigans, Mrs, Bradigan testified that there was, in any
event, no regular usage of this area by Mr. Turri and that it was elear that the former alleyway
had become part of the backyard of the Bradigans. We are satisfied, based on these factual
findings, that the plaintiff has failed to establish the requisite elements of a prescriptive
easement.
The defendants in this case have countered with a claim for counsel fecs, The right of a
participant to receivc counsel fccs is govcrned by thc Judicial Code at 42 Pa.C.S,A. 2503. A
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'Johnson, Duffie, Stewart Aeidner
By: Murk C. Duffie
J.D. No. 75906
301 Market Street
P. 0, Box 109
Lemoyne, Pennsylvania 17043-0109
(717)761-4540
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Attorneys for Plaintiff
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Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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JOSEPH A. TURRI,
NO. Docket No. 98-480
v,
JOHN F. POVILAITIS and
SUSAN T, POVILAITIS, husband and wife,
Defendant(s)
CIVIL ACTION - LAW
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PROOF OF SERVICE
,
Ron Turo, Esquire
28 S, Pitt Street
Carlisle, PA 17043
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I, Mark C. Duffie, of the law firm of Johnson, Duffie, Stewart & Weidner, attomeys for Joseph A. Turri,
Plaintiff, do hereby certify that I served a true and correct copy of the attached Notice of Appeal by United
States Mail, first class, postage prepaid, upon the parties listed below as required by PA. RAP, 906.
The Honorable Kevin A. Hess
Court of Common Pleas of Cumberland County
One Courthouse Square
Carlisle, PA 17043
Rick Pierce, Court Administrator
One Courthouse Square
Carlisle, PA 17043
Date:
rj:n/tJ/
Barbara Graham, Court Reporter
Court of Common Pleas of Cumberland County
One Courthouse Square
Carlisle, PA 17043
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Cumberland County Prothonotary's Office
~ Civil Case Inquiry f"""'\
TURRI JOSEPH A (vs) POVlLAITIS JOHN F ET AL
1'1190
Reference No..: Filed........1 1/;!'//I!J!Jfl
Case Type.....: COMPLAINT - EJECTMENT Time..!...... 1 ;!IJ;!
Judgment. . . . . . : .00 Execut ~Il Data 0/00/0000
Judge Assigned: HESS KEVIN A Jury Tr aJ.. .. .
Disposed Desc. : D~spose l1f'1to \.': , oyoo/OOOO
------------ Case Comments ------------- H~gher Crq;};. (~. '
Higher Crt;;.!. I " '
'"(~., , ,
******************************************* ***** **** *** * * * * *. *f.\)~"".... \'-'~...................
General Index Attorney IMlp .., :,',
TURRI JOSEPH A PLAINTIFF DUFFIE MARK <'f~i ';: " '
201 RUNSON ROAD 'J: (", \ '
CAMP HILL PA 17011 .' 'I' ,:; ,\
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POVlLAITIS JOHN F DEFENDANT ::). (,) "'.
200 NORTH 33RD STREET
CAMP HILL PA 17011
POVlLAITIS SUSAN 'I' DEFENDANT
200 NORTH 33RD STREET
CAMP HILL PA 17011
**ttttt"'**"***"*'**'*'**'**'**'*'****'*""*""""t.......................
* Date Entries *
"'*"'*"'*""'**'**"**"*"***'*'*'*"'**"""'",..t.......................
1/27/1998
2/26/1998
4/13/1998
4/17/1998
4/17/1998
4/28/1998
10/28/1998
1/08/1999
5/07/1999
5/10/2000
5/25/2000
6/19/2000
6/22/2000
7/21/2000
12/06/2000
1/08/2001
- - - - - - - . - - - - - FIRST ENTRY - - - - - - - - - - - - - _
COMPLAINT - CIVIL ACTION - EJECTMENT
-------------------------------------------------------------------
NOTICE OF DEPOSITION
-------------------------------------------------------------------
PRAECIPE TO REINSTATE COMPLAINT BY MARK C DUFFIE ESQ
-------------------------------------------------------------------
SHERIFF'S RETURN FILED
Litiqant.: POVI~ITIS JOHN F
SERVED : 4/16 98 COMPL EJECTMENT
Costs....: $33. 0 PdBy: JOHNSON, DUFFIE, STEWART 04/17/1998
-----------------------------------------------------------._------
SHERIFF'S RETURN FILED
Litiqant.: POVI4AITIS SUSAN 'I'
SERVED : 4/16/98 COMPL EJECTMENT
Costs....: $12.00 Pd By: JOHNSON, DUFFIE, STEWART 04/16/1998
------------------------------------------------------~._-----------
PRELIMINARY OBJECTIONS OF DEFENDANTS
-------------------------------------------------------------------
PLAINTIFF'S RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY RON TURO ESQ
DEFENDANT'S PRELIMINARY OBJECTIONS
-------------------------------------------------------------------
OPINION AND ORDER - DATED 5/7/99 - IN RE DEFENDANTS' PREL~MI~ARY
OBJECTIONS - DENIED - BY KEVIN A HESS J - COPIES MAILED 5/10/99
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR TRIAL - BY MARK C DUFFIE ESQ
-------------------------------------------------------------------
ORDER - IN RE PRETRIAL CONFERENCE - DATED 05-25-00 - HEARING SET
FOR FRIDAY JUNE 16 2000 AT 9:00 AM IN THE CHAMBERS OF THE
UNDERSIGNED - BY THE COURT HESS J - COPIES MAILED 05-25-00
-------------------------------------------------------------------
ORDER - IN RE PRETRIAL CONFERE~C~ - TRIAL IS SET ON 10/4/00 AT 9:30
AM COURT WILL VIEW PREMISES 10/2/00 AT 4:45
-------------------------------------------------------------------
ANSWER AND NEW MATTER
-------------------------------------------------------------------
REPLY TO NEW MATTER
-------------------------------------------------------------------
ORDER - DATED 12/6/00 - IN RE PRETRIAL CONFERENCE - AT THE REQUEST
OF COUNSEL FOR THE PLFF A PRE'rRfAL CONFERENC8 IN THE ABOVE
CAPTIONED MATTER IS SET FOR 1/8 01 AT 9:00 AM IN THE CHAMBERS _
,BY THE COURT KEVIN A HESS J COP ES MAILED 12/7/00
-------------------------------------------------------------------
ORDER - DATED 1/8/01 - IN RE PRETRIAL CONFERENCE - A VIEW WAS
CONDUCTED EARLIER IN AN EFFORT TO SETTLE THE MA'l'T8R THE CASE
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.Johnson, Duffie, Slewnrl & Weiduer
By: Murk C. Duffic
J.D. No. 75906
301 Murkct Strcct
P. O. Box 109
LCll1oync. Pcnnsylvul1iu 17043-0109
(717) 761-4540
~
Attorncys for Pluinliff
JOSEPH A. TURRI,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. Docket # 98-480
Plaintiff
V.
JOHN F, POVILAITIS and
SUSAN T. POVILAITIS, husband and wife
CIVIL ACTION - LAW
Defendant(s)
BEmlEST FOR TRANSCRJeI
A Notice of Appeal having been filed in this matter, the official court reporter Is hereby ordered 10
produce, certify and file the transcript In this matter In conformity with Rule 1922 of the Pennsylvania Rules
of Appellate Procedure,
,
I
Respectfully submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
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Appeal Docket Sheet
Docket Number: 741 MDA 2001
Page 1 of3
May 7, 2001
Superior Court of Pennsylvania
-
Joseph A. Turri, Appellant
v
John and Susan Povllaltis, Appellee
InlUatlng Document: Notice of Appeal
Case Status: Active
Case Processing Status: May 2. 2001
Joumal Number:
Case Category: Civil
Consolidated Docket Nos.:
Awaiting Original Record
CaseType:
Related Docket Nos.:
Civil Action Law
Next Event Type: Docketing Statement Received
Next Event Type: Original Record Received
SCHEDULED EVENT
Next Event Due Date: May 21, 2001
Next Event Due Date: June 6, 2001
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Appeal Docket Sheet
Docket Number: 741 MDA 2001
Page 2 of3
May 7, 2001
TRIAL COURT/AGENCY INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland
Dale of Order Appealed From: April 2. 2001
Dale Documents Received: May 2. 2001
Order Type: Order Entered
+.t.<<>,M-.
Appellant
Pro Se:
IFP Status:
Appellee
ProSe:
IFP Status:
Fee Date
5/4/01
Judge:
517/01
,"""
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$uperlor Court of PennsylvanIa
-
COUNSEL INFORMATION
Turri, Joseph A,
Appoint Counsel Status:
No
Appellant Attorney Information:
Attomey: Duffie, Mark Clifford
Bar No.: 75906 Law Firm: Johnson, Duffie, Slewart & Weidner
Address: 301 Market St
PO Box 109
Lemoyne, PA 17043-0109
Phone No,: (717)761-4540 Fax No,: (717)761-3015
Receive Mall: Yes
E-Mail Address:
Receive E-Mail: No
povllaltls, John and Susan
Appoint Counsel Status:
Appellee Attorney Information:
Attomey: Turo, Ronald A,
Bar No,: 34334 Law Firm: Turo Law Offices
Address: Turo Law Offices
28 S Pitt Street
Carlisle, PA 17013
Phone No,: (717)245-9688 Fax No.: (717)245-2165
Receive Mall: Yes
E-Mail Address:
Receive E-Mail: No
FEE INFORMATION
Fee Name
Notice of Appeal
Fee Amt
55,00
Paid
Amount
55,00
Receipt Number
2001 SPRMD000495
Division: Civil
Judicial District: 9
Date Notice of Appeal Filed: April 27. 2001
OTN:
Hess. Kevin A,
Judge
Lower Court Docket No.: 98-480
ORIGINAL RECORD CONTENTS
3023
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Superior Court of Pennsylvania
Appeal Docket Sheet
Docket Number: 741 MDA 2001
Page 3 of 3
May 7. 2001
-
Original Record Item
Flied Date
Content/Description
Date of Remand of Record:
BRIEFS
Flied Date
May 2, 2001
DOCKET ENTRIES
Docket Entry/Document Name Party Type
Notice of Appeal Flied
Flied By
Appellant
Turri, Joseph A.
May 7, 2001
Docketing Statement Exited (Civil)
Middle District Filing Office
517/01
3023
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JOHN F. POVILAITIS and:
SUSAN T. POVILAITIS,
Defendants
98-0480 CIVIL TERM
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JOSEPH TURRI,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings were held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse, Carlisle, Pennsylvania,
Courtroom Number Four,
March 23, 2001.
APPEARANCES:
MARK C. DUFFIE, ESQUIRE
For - The Plaintiff
RON TURO, ESQUIRE
For - The Defendants
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1 March 23, 2001
2 Carlisle, Pennsylvania
3
4 (Whereupon, proceedings were held at 9:32 a.m.)
5 THE COURT: Good morning.
6 MR. DUFFIE: Good morning, Your Honor. Your
7 Honor, in the interest of time, this morning, before we get
8 started, Mr. Turo and I have drafted and agreed to some
9 stipulations of fact that we have introduced as Joint Exhibit
10 Number 1, it contains a subdivision plan and deed.
11 It will save us the time and effort of going
12 through all of that. Would you like to review it or me read
13 it into the record?
14 THE COURT: No, it will speak for itself. Have
15 you marked it?
16 MR. DUFFIE: I have marked it and it is part of
17 the record.
18 THE COURT: Mr. Turo, you are agreeing by
19 stipulation?
20 MR. TURO: Yes.
21 THE COURT: All right.
22 MR. DUFFIE: Let me give you an introduction. We
23 have been to meet with you several times to give you
24 familiarity of these two abutting properties. We did an
25 on-site viewing of this particular property. I think you have
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2
THE COURT: I remember what it looks like.
3 MR. DUFFIE: We have also drafted or I have
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4 drafted -- I'm sorry -- a memorandum of law basically
5 outlining our legal position in this case, and we would like
6 to review it with you briefly before we get started. In fact,
7 what we have found, and you will see in the stipulation of
8 fact, is that we have two different properties and two
9 different subdivision plans.
,
10
The povilaitis' property is a property contained
11 in the plan of Belvoir, which was filed sometime in 1906. It
12 was dated 1906 so I am assuming it was sometime around there.
13 The record is a little sketchy.
14
My client owns a property that is part of a
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15 subdivision that is called Hollywood Development. His
16 subdivision plan was filed sometime in 1961. You will see
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17 that again in the stipulation.
18 The alleyway that lies between these two
19 properties, the actual alley, is fully contained within the
20 plan of Belvoir. The povilaitis' deed sit~s that alley as a
21 joinder. My client's property does not.
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22 With that said, and you will see in my memorandum
23 of law, 21 years after that particular alleyway is laid out
24 and offered as dedicated and not accepted by Borough, its
25 abutting owners/grantor had total access to the same, which
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1 would mean that the alleyway would revert to the povilaitis'
2 or predecessors in interest.
3 What we are here to do today is to determine
4 whether or not my client has established rights to utilize
5 that alley by way of easement by prescription. And I have
6 outlined that in my memorandum of law the different points
7 that need to be addressed in succeeding in the claim.
8 THE COURT: Okay.
9 MR. DUFFIE: Did I accurately reflect that,
10 Mr. Turo, or would you like to add something?
11 MR. TURO: I think that is a correct statement of
12 legal issues as we have them.
13 THE COURT: Okay.
14 MR. TURO: If I could, though, Your Honor, explain
15 it very briefly from our perspective.
16 THE COURT: Certainly.
17 MR. TURO: We all agree that the povilaitises own
18 that property in fee and have owned it in fee because of the
19 time period. We have all discovered before the time that they
20 purchased their property, which I believe was --
21 CLIENTS: July of 1994.
22 MR. TURO: -- in '94.
23 This case actually started in that period of time
24 because of actions undertaken by Mr. Turri. And the first
25 salvo out of the box came on Christmas Eve of 1996 when
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1 Mr. Duffie's firm sent a letter to the povi1aitises and said
2 they had to take down their fence. They were to take it down
3 because of a right-of-way granted by the developer which
4 appears in subdivision plans.
5 There was an incorrect statement of the law there,
6 and I am only mentioning that because we believe that this
7 action has become vexatious, and because of that and some of
8 the action undertaken by Mr. Turri specifically entitles
9 Mr. povi1aitis to collect costs they have absorbed, including
10 removing one of Mr. Turri's trees that fell, and also close to
11 $3,000.00 in legal fees. That is what I will be asking at the
12 end of this trial.
13 THE COURT: That claim was made in your new
14 matter.
15 MR. TURO: Yes. Yes, it was. Thank you.
16 MR. DUFFIE: Your Honor, if I may address that
17 briefly. When we first undertook this case, the origin of
18 that particular alleyway was unclear. There was a question of
19 whether or not there was a common grantor that existed between
20 these two particular subdivision plans, and whether or not
21 there was any reservations of rights included therein.
22 We performed a title search, which took many, many
23 months to complete, and went into records that probably not
24 many people have ventured into in the county, and eventually
25 did determine, to the best of our knowledge, that there was
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Q
A
Q
Mr. Turri
A
30 Rife Drive, Mechanicsburg, PA.
And where are you currently employed?
Kirby's Paneling Center, Mechanicsburg.
And how are you -- how do you know my clients,
We were neighbors. I lived on Runson Road. I
lived right next to him from 1957 to 1976.
Q When you say right next to him, what was the
address of that particular residence?
A 203.
Q So your property lies to the north and abuts
Mr. Turri's property?
A Correct.
Q And what time frame? For what time frame were you
living there?
A 1957 to 1976.
Q When the time that you first moved in there,
were you the first owners in that residence?
A Yes.
Q Are you familiar with the alleyway that we are
here discussing today?
A Yes, I am.
Q Did you ever have the opportunity during the time
that you lived there, especially initially from '57 to '60
when you were younger, have the opportunity to utilize the
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alleyway in any way?
A Yes. Basically all when we were younger, all
of the kids in the development, we used it to play in. My dad
would take his car down there to wax it, clean it, to work on
the car.
Q When you say he took it down to there to wax it,
was that in the portion of the alleyway of the povilaitis'
property and Mr. Turri's property?
A Correct. He would -- from Logan Street, which is
an adjacent street, you would go around to Logan Street, pull
your car up the alley and back in back of the house to, you
know, do work on it.
Like I said, kids played in the alley. People
stored stuff there. After a certain amount of time, people
would, you know, might have a boat there over the winter or
whatever. But basically we used it all of the time as an
alley.
Q Specifically with the cars, how often did your
father utilize the alley for the car's treatment?
A Every couple of months, when it was warm, every
six or eight weeks working on the car, waxing it, cleaning it
up.
Q That was recently or when did that occur? '57?
A That would have been late 50's into the 60's, you
know, into the 60's, through '64, '65, possibly.
9
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1 Q what was on the properties that presently
2 constitute Mr. povilaitis' property and the rest of the
3 Belvoir subdivision? What was back there at that time?
4 A At that time, nothing at all. No sheds, you know,
5 nothing. I mean, you could definitely tell it was an
6 alleyway. There was ruts from, you know, from people driving
7 their cars.
8 Q Were there any homes in the other subdivision, in
9 the Belvoir subdivision?
10 A Directly behind Joe's -- at that time, no. The
11 other their house was built, I think, in 1971. There was
12 a house behind my parents' house. I am not sure the year that
13 was built, but, urn, even when those people lived there, the
14 alley was used all of the time.
15 Q All right. Specifically, do you remember in what
16 fashion or in what manner Mr. Turri used the alley?
17 A Joe would, for instance, cut wood down there. We
18 actually built a shed down there, and you know, rolled it up
19 to be closer to the house.
20 You know, there again, storing boats, but
21 basically something you didn't want to do in your yard you did
22 in the alley.
23 Q You used to tell me about strike that. Tell me
24 about some of the activities you used to do with the kids back
25 there with Joe's boys.
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A We had minibikes. We rode minibikes up and down
the alley. Riding our bikes, basically that is all I can
remember as far as, you know, just general play down there.
Q The alleys in general in Camp Hill, can you tell
us in general how they were used back then?
A I think mainly, there again, people basically in
the type of alley we were at, basically just worked on cars or
did work they didn't want to do in the yard.
Our alley, when you start at Logan Street and go
up, it dead ends. So it wasn't like it was a thoroughfare,
but it was used as an alley, though, everybody did use it.
Q Does your mother still live in the house that you
grew up in?
A Yes.
Q What has happened with the alleyway between your
mother's house and the abutting owner in Belvoir?
A Now people basically have moved out, of course, of
houses and new people have moved in, and they have basically
taken over the alley.
The person behind my mother built a shed, not
right on the property line but very close. They basically use
the alley as their yard. My dad's gone, my mother, you know,
has no use for the alley anymore.
Q Did they have a problem with the way that it was
being used, your parents?
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Well, at first, before my dad passed away, he
A
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didn't like the idea of them building a shed right there. He
3
had a small fence put up there, but he never said anything,
4
you know, never did anything about it.
5
Q What is your impression of the alley from -- well,
6
let's say the alleyways in general in Camp Hill about the
7 ownership interest in those things. What was your impression
8 at that time?
9
I understood that each owner was responsible for
A
10 half of the alleyway, as far as if there was any maintenance.
11 I understand, like I said, you basically took care of half of
12 the alley, and the other person took care of the other half.
13 As far as legal matters about ownership, I don't know.
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14 Q Can you state, again, what years you lived at that )
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15 203 Runson? '
16 A 1957 to 1976. I
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In that particular time frame, can you describe
Q
18 the frequency in which Mr. Turri utilized the alley between
19 his residence and where povilaitises now reside?
20
As far as daily -- I wouldn't call it daily use.
A
21 But like I said, cutting wood in the fall for fireplaces,
22 always storing -- he had a boat, always storing his boat in
23 the alley. Like I said, general work, maybe building
24 something or whatever. Just general use, I guess.
25 MR. DUFFIE: I have nothing further at this time.
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CROSS-EXAMINATION
BY MR, TORO.
Q Mr. Sockman, you said that it is as your
recollection as a child I gather. What year were you born?
A Fifty-five.
Q So we are talking you wouldn't have much
recollection until maybe the early 60's late 60's?
A Yeah. Right.
Q You said his dad would take his car down into that
area to wash and wax it?
A Yes.
Q That was your father?
A Yes.
Q Now, when the people behind your mom's house built
their home, they ended up moving their property through and
took over the alley. Right?
Not right away, no.
Eventually they did.
Eventually, and I can't give you a year or date on
A
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that, but
Q
A
Q
A
Q
Do you recall when the Bradigans built their home?
'71, I believe it was.
And they did the same thing, didn't they?
Yes.
They took --
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A There, again. not right away because they knew
Joe, you know, Joe worked down there. Joe stored stuff down
there, you know. He would pull his boat in there, whatever,
not -- they didn't take it over right away that I know of.
Q They did take it over, though, didn't they?
A Eventually.
Q And stopped all use of anybody traveling back and
forth in that area?
A Correct.
Q And made it very clear that that was now part of
their yard.
A Apparently.
Q And you said that Joe would -- he built a shed,
but I gather the shed ended up in his yard area ultimately?
A No, the shed was as far as I know, the Millers
that lived behind my parents on their property, not on --
Q Okay. I thought you referred to a shed that he
built at some point or moved onto his property at some point?
A Joe built we built a play house for us kids and
we basically built it in the alley.
Q And moved it onto his property.
A Right.
Q Now, did Joe ever identify in any way the edge of
his property line?
A To me, no.
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4 right out to 33rd Street, including the empty lots. When they '~f
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Q
Did he ever start filling in his backyard to sort
2 of increase the height of it with fill or anything?
3
A
Actually builders did that to our land to slope
5 built those houses, they made Joe's property, our property
6 along there, more or less a slight bank down. Not a slight
7 grade. It was a definite bank there.
8 Q And all the neighbors on 33rd Street had pretty
9 much moved to sort of the end of where the bank comes down, to
10 the flat area?
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Correct.
Q
And I'm assuming that you don't really know where
13 the alley is in relationship to where the edge of the bank is?
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No.
Q
Okay. That is all I have. Thank you.
MR. DUFFIE: Just a couple quick follow-ups,
17 Your Honor.
18 REDiRECT EXAMiNATiON
19 BY MR, DUFFiE:
20
'71 to '76 that is when you lived there, at the
Q
21 same time as the Bradigans; is that correct?
22
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A
Uh-huh.
Q
During that time period, was Joe still
24 continuously and frequently using the alleyway?
25
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Yes. Yes.
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Q Was -- have you been back regularly to the
property since '76 to visit your parents?
A Two to three times a week I am there. I take care
of my parents' -- my mom's house.
Q So you have always taken notice of what has gone
on back there?
A Sure. Sure.
Q Would you say then, even since '76, until the
fence was erected sometime in 1996 that Joe had used this
continuously and frequently?
A Yes. Yes.
MR. DUFFIE: That is all I have, Your Honor.
MR. TURO: I have nothing else.
THE COURT: Thank you.
MR. DUFFIE: Your Honor, we would call Ralph
Griffiths to the stand, please.
(Whereupon,
Joint Exhibit No.1
was marked for identification.)
Whereupon,
RALPH M, GRIFFITHS,
having been duly sworn, testified as followsl
DIRECT EXAMINATION
BY MR. DUFFIE I
Q Mr. Griffiths, could you state and spell your name
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for the record?
A My name is Ralph M. Griffiths, G-R-I-F-F-I-T-H-S.
Q Where do you reside Mr. Griffiths.
A I live at 4 Scott Cove in East Berlin,
Pennsylvania, 17316 is the zip.
Q How are you employed?
A I am Chief of Police with Eastern Adams Regional
Police Department located in Adams County, Pennsylvania.
Q And how are you familiar with my client,
Mr. Turri?
A I lived at 242 North 32nd Street from
approximately 1960 to 1969, and I pretty much ran around with
Joe's kids and Bill Sockman when we were growing up.
Q How old were you during that time frame?
A I believe I moved to Camp Hill when I was five
years old, and moved away in 1969.
Q Okay. So--
A Approximately 14 years. I was 15, 16 years old, I
believe.
Q Have you been back frequently since?
A Not frequently. When we moved to Mechanicsburg, I
still ran around with Joe Turri's kids until 1972, and then
pretty much I haven't seen them much since 1972. From 1960 to
1972 I ran around with them pretty much.
Q So after that, you are not familiar with what the
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use of that particular property has been?
A No, not at all.
Q All right. Let's deal with sort of the same thing
that we were talking to Mr. Sockman about, and that is the use
of the alleyway in general as kids. Can you describe how you
used it? I am talking about specifically the alley behind
Mr. Turri's residence from '60 to '69.
A Yeah, at that time there wasn't really -- I lived
at 32nd Street, that would have been northeast of where
Mr. Turri lived, and every time I came down to the Turri's
house I would come out the back of my house where there was a
big field and pretty much walk across 33rd Street, keep going
across the field, and where the alley extended up to Hampden
Township, I just came down the alley.
Back then it was -- you could tell it was an
alley. There were ruts in it where people would drive up and
down, and you would see cars there and people going up and
down there all of the time.
Q Di.d you used to ride bikes and motorcycles?
A Yes, we had minibikes that we made out of old bike
frames that we used to race up and down there all of the time,
and you know, ride our bikes up and down all of the time.
Q Was there a system of alleyways that you did this
in?
A Pardon?
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1 Q Was there a system of alleyways that you did this
2 in Camp Hill?
3 A Yes, actually there was an alleyway behind my
4 house on 32nd Street, and you could tell over the years as
5 people moved in, what they would do is they would start fixing
6 their yard up really nice and eventually would result in the
7 alleyways would disappear. And new people would move in and
8 not know it was an alley.
9 The power trucks used to come up behind my house
10 to service the power lines. In fact, I think when I was about
11 seven years old I saw an accident, it was one of those things,
12 you know, that was unbelievable to see.
13 Q Specifically, when we are dealing with the
14 alleyway behind Mr. Turri's house, can you tell us about some
15 of the activities that you did as kids in that alleyway if you
16 can remember?
17 A We had forts out back there. I think we did some
18 camping back there. Joe Turri always had his wood pile back
19 there. I know that they had a '65 or '66 white Mustang. I
20 think Joe, Jr. was out ramming around and knocked the
21 transmission out, and it was parked in the alleyway.
22 It was one of our play spots. It was the home
23 that everybody hung around at. If you weren't at the
24 Griffiths' house, you were at the Turri's house, and that is
25 the way it would be, you know.
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He built a small little play shed for us, you
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know, that we hung around in a field right directly behind his
3
house. We had a fort there, and usually every time that they
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built another house there, when they would the foundation, we
5
would built a fort. Just kid stuff. It's the best part of
6 life when you were growing up.
7
Do you remember any other specifics about that
Q
8 particular area?
..
9
I know he used to store his boat back there, you
,
A
10 know, the wood pile. It was used, you know. Everybody that
11 lived there just sort of knew the alleys were always there.
12 You could drive up and down then.
13 And just like I said, eventually as people moved
14 away and came in, you know, they basically changed the grass,
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15 got the grass real nice, and sort of took it over as their
16 yard. And as people moved in, they didn't know it was an
j
17 alley, and didn't really use it much anymore.
18
At that time, even though you were 15 years old,
Q
19 who had the ownership interest?
20
As a 15-year old, I really didn't care who owned
A
21 it. Everybody sort of used it. Nobody put a fence up and
,~
22 said you can't go across. That was the last thing to say to a
23 14- or 15-year-old kid. Don't ride your bike up and down
h"
24 here. Everybody got along. We all played together, and, you
25 know, life was great.
20
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1 MR. DUFFIE: I have nothing further
2 CROSS-EXAMINATION
3 BY MR. TUROI
4 Q The time period that you are talking about I
5 gather predates the building of a house behind Mr. Turri.
6
That is correct, sir.
A
7
And so you have no information to offer as to the
Q
8 use of that alley after the house was built?
9
I have no information to offer after about 1972,
A
10 sir.
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MR. TURO: That's all I have. Thank you, Chief.
MR. DUFFIE: I have nothing else.
THE COURT: Thank you, Chief.
THE WITNESS: Thank you.
MR. DUFFIE: Next we will call Eugene Keith to the
16 stand, please.
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Whereupon,
EUGENE G. KEITH,
having been duly sworn, testified as followsl
DIRECT EXAMINATION
BY MR, DUFFIE:
Q Mr. Keith, can you state your full name and spell
23 it for the record, please.
24
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A
Eugene G. Keith, K-E-I-T-H.
Q
Where do you reside, Mr. Keith?
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A 1250 Brant Road, Mechanicsburg.
Q And how do you know my client, Mr. Turri?
A We lived catty-corner behind the Turri's. We
lived on Logan and 33rd Street, which is the corner.
Q Okay. So is it true then that you abutted the
same alley, but south of Logan Street?
A That is correct.
Q Okay. And your property lies directly south of
povilaitis' property across Logan Street?
A Uh-huh.
Q How long did you reside there?
A From '72 to, I think, '91.
Q And tell me a little -- since you abutted this
alley in the southeastern end, tell me how you used the alley
during that time.
A Basically, I parked a camping trailer in there for
many years.
Q Did you use it in any other way?
A I really don't recollect, you know, we just
you are in. You are out. You know, I had a brush pile in
there, if that helps.
MR. TURO: Can I just clarify something? Are we
talking about the alley behind your house?
THE WITNESS: Yes.
MR. DUFFIE: We are not talking about the one
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behind the Bradigan's house.
THE WITNESS: That is the alley --
MR. TURO: Your alley.
THE WITNESS: Yes.
MR. TURO: Thank you.
BY MR, DUFFIE:
Q Now, let's switch gears and go to the alleyway
north of Logan Street. During the time that you were there,
in what ways did you notice that Mr. Turri was using that
particular alleyway?
A They had a wood pile. The two parties apparently
would go hunting and bring wood back and cut wood for
fireplaces.
Q The two parties or Povilaitises or?
A No, the Bradigans and Turris.
Q And the Bradigans used to live at the povilaitis'
resi.dence?
A Yes.
Q Now, continue. You were saying something about
wood.
A They would cut wood for their fireplaces. Joe had
a boat back in there. I don't know what other uses. I
remember the boys would, with the minibikes, which always
frustrated me.
Q But talk to us a little bit about the frequency of
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use. Did Joe always have a wood pile back there? Did he do
that yearly?
A I think that maybe the wood pile was there, but
yearly adding and subtracting, I can't answer. In the early
years it was quite frequent, yes.
Q Okay. But even up through '91 he did still. in
fact, store wood in the alleyway?
A I can't answer that.
Q Did he on occasion -- did you ever notice that he
would store automobiles there at any time to work on the
automobiles or to remove them from the streets?
A In the early years, yes. I think there was also a
boat on a trailer in there. I didn't know that I would have
to remember all of that.
Q Is there anything else that you can recollect that
was back there. as far as what Mr. Turri was storing on that
particular alleyway?
A No.
MR. DUFFIE: Okay. That is all I have for now.
CROSS-EXAMINATION
BY MR, TURO:
Q Mr. Keith, you say that you used the portion
behind your house to put your trailer in.
A That's correct.
Q Did anyone else besides yourself do that?
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A No.
o So the area behind your house was not used by
other people, I gather.
A Occasionally somebody would want down the alley,
and oftentimes I would have to move the trailer, move it out,
to let them down through. I always considered that as an
alley, and it stayed that way.
o I understand. You say in the early years you saw
wood back there, a boat, a car, whatever. When you say the
early years, are you talking about the early '70's? Is that
what you are talking about? The early years?
A I would say between '70 and '80.
o And when you would see, for example, a boat there
for a period of time or some wood, it wasn't year-round, I
gather?
A No.
o And could you absolutely tell us today that it
was, in fact, in the, quote, alleyway or was it Mr. Turri's
property or don't you know where the line is?
20 A You know where the line is because of the curb
21 indent of where the alley should be.
22 0 You believe that would be the line, is that what
23 you are saying?
24 A The line of what?
25 0 The property line.
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A I assumed that that would be the property where
the curb indent --
Q Right.
A -- comes through there.
Q That is what I am saying.
A Because there was one on each side of the street.
Q Right. You will assume that?
A I didn't survey it.
Q Right. That is what I am asking is, was there
a time that wood or the car or the vehicle was off of that
indent ared and onto Mr. Turri's property?
A I would say that it -- there were times that that
happened, yes.
Q Okay. And you could not tell us today, the
frequency that you saw wood in what you assumed-to-be
alleyway, as opposed to Mr. Turri's property --
A That's correct.
Q __ or the boat or a car or anything else?
A That's a lot of years ago.
Q I understand that completely, sir, and I am
assuming that you can't even give us numbers of how many years
you might have seen wood there or a car there or a boat there?
A That's correct.
Q You have a recollection that over that period of
time, occasionally you would see wood, a car or a boat there?
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A Uh-huh.
Q And even with that recollection, I gather, you
cannot tell us for sure that the boat was in the, quote,
alleyway or on Mr. Turri's property?
A That is true.
Q Okay. Thank you.
THE COURT: Anything else?
MR. DUFFIE: A few follow-ups, Your Honor, if I
may.
REDrRECT EXAMrNATrON
BY MR. DUFFrEI
Q If you can remember the alleyway to the north
where we are talking about, at this time, do you remember how
it was graded?
In other words, was Mr. Turri's property higher?
Was there an embankment of any sort that led down to the
alley? Is it similar as to down at your end?
A The properties were higher, and there was a row of
trees on both sides.
Q Do you remember, if the properties were higher
then, obviously there was a bank that went down?
A Kind of a slight bank, yes.
Q Okay. To the best of your recollection, can you
remember how far the base of the bank was from where that curb
cut was? Do you remember how much room was in there?
27
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4 that.
5 Q
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A
(NO AUDIBLE RESPONSE)
Q
Do you understand my question?
A
I understand your question. No, I can't answer
You indicated that the alleyway, to your
6 recollection or to your knowledge, is indicated by the curb
7 cuts. Okay?
8
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A
Uh-huh.
Q
If that is true, how much room do you think lies
10 from the alleyway, Joe's side of the alleyway, to that bank?
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I can't answer that.
Q
Okay.
A
I don't know.
MR. DUFFIE: I have nothing further.
MR. TURO: That's all I have.
THE COURT: Thank you.
18 Weltmer to the stand.
MR. DUFFIE: Your Honor, I would call Harry
19 Whereupon,
20 HARRY WELTMER,
21 having been duly sworn, testified as follows:
22 orRECT EXAMrNATION
23 BY MR. DUFFrE:
24
Q
25
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Mr. Weltmer, can you state your name.
Can you talk a little louder, please?
28
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please.
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Runson?
A
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they realized, you know, the importance of this alleyway or
leeway or whatever you want to call it, so they worked pretty
good, and they agreed that they could both use this for
whatever was needed.
So Joe would bring his wood up there to burn in
his fireplace, and I used to go over and help him unload in
this alleyway. And, well, they had easy access to this
particular spot, and it was more or less agreed that they
could use this. And I think they got along pretty good until
recently we have this problem.
Q So the wood that was stored, was it actually
stored within the alley, within the curb cuts?
A No, we used this for backing up his truck so we
could unload it in his backyard.
Q Did he ever store any of the wood down on the
alleyway?
A No, he didn't ever store any wood that I can
remember. It was always in his backyard.
Q So it was up against the bank type of thing?
A That's right. That's right.
Q Did he ever utilize the alleyway in any other way?
A (NO AUDIBLE RESPONSE)
Q Did he ever pile it?
A Well, at one time he parked his boat there, and
his truck and whenever Mr. Bannerman would like to use that
30
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1 for his stretch and haul things there, why, Joe and
2 Mr. Bannerman would agree that they could do this.
3
It's sad I want to make this remark. It's sad
4 when people get along so well with the thing at hand, that
5 somebody has to come along and stop it and cause this
6 particular situation. It's really sad that people just can't
7 get along on something that they had been using for years and
8 years.
9
Q
So it was your understanding more or less that the
10 Bradigans and Joe were sharing this alleyway?
11
A
That's right, they were. And so would the people
12 next to Bradigans. They had an indoor pool and every now, and
13 then they would bring equipment up there and prepare the pool
14 and install this pool.
15
Did you have an alleyway behind your house?
Q
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I have what they call a leeway, that in my deed it
A
17 has this specified, that easeway they call it. I have an
18 easeway back there
19
And --
Q
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-- if they so need it.
A
21
Q How do you use that with your neighbors?
22
A Well, we use that by taking care of it and cutting
23
the grass and so forth, and we more or less feel that it's
24
there, and it's for the benefit of both parties or parties
25 that are living where the back yards meet at the alleyway.
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Q From the time that you lived there, would you say
that Joe used it -- used the alleyway continuously?
A Say it again.
Q From the time that you lived in the neighborhood,
would you say that Mr. Turri used the alleyway continuously?
A Not continuously, but whenever it was needed for
him was to use it. Mr. Bradigan and Joe would get together,
and they agreed this they could use it.
Q But they both would use it for the entire time
that they were there?
A That's right. That's right. Any time that they
wanted to use it. It was used -_
Q Okay.
A -- by both Joe and Mr. Bradigan.
Q Okay.
MR. DUFFIE: I have nothing further.
CROSS-EXAMINATrON
BY MR. TURO:
Q Mr. Weltmer, the wood that was brought in, was it
stored on Mr. Turri's property?
A Mr. Turri's property; that's right.
Q Never stored it in the alleyway?
A No, no.
Q He didn't store anything in the alleyway, did he?
A No, he didn't.
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Q And occasionally Mr. Bradigan would let him
come
A That's right.
Q Let me finish the question. But you are right.
You anticipated my question. Mr. Bradigan would let him come
across the back of his yard to go into Mr. Turri's yard?
A It is that alleyway there, see. The curb cuts
the curb was made the width of an alleyway.
Q I understand.
A And that is where they used to drive back in there
and unload the wood and whatever he wanted to use it.
Q But at no time did Mr. Turri store stuff in that
alleyway?
A Well, other than -- like I say, there was a
possibility that every now and then he might have used the
boat.
Q Now, you said that the people next to him built a
18 pool?
19 A Yes.
20 Q And --
21 A Next to Mr. Bradigan.
22 Q And you thought some of that equipment might have
23 come up through the alley for that pool?
24 A That's right.
25 Q Let me show you a picture I have here. Tell me if
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have been.
back there?
A
Q
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A To tell you the truth, when you asked me that, I
can't remember a fence back there. In that picture there is a
fence there, but they used that driveway or alleyway quite
often.
Q I see. Okay.
MR. TURO: That is all I have of Mr. We1tmer.
MR. DUFFIE: I have nothing further, Your Honor.
THE COURT: Thank you.
MR. DUFFIE: Your Honor, Mr. We1tmer's wife Adele
is here today. I am not going to have her testify. I believe
her testimony would be cumulative
THE COURT: All right.
MR. DUFFIE: and pretty much affirm what we
have just heard.
Thank you, Mr. Weltmer, for coming.
THE WITNESS:
MR. DUFFIE:
Okay.
I would call Joe Turri to the stand,
Your Honor.
Whereupon,
JOSEPH A. TURRI,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. DUFFIE:
Q Mr. Turri, could you state your full name and
spell it for the record, please.
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say?
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address?
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that time?
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Joseph A. Turri, T-U-R-R-I.
Mr. Turri, where do you reside?
201 Runson Road, Camp Hill.
And where are you employed?
Urn --
How do you -- how do you earn a living, I should
Investments.
How long have you resided at that particular
since 1957, 44 years.
And who did you reside at that address with at
I was married for several years. I lived there
with my wife and three children, three boys.
Q And what are their names?
A Joe, Jr., Jeffrey and Mark.
Q And when were they born?
A Joey was born in 1955, Jeff in '57, and Mark in
'58.
Q Okay. Um, you lived there until -- strike that.
You are currently living there today?
A Yes.
Q When you first moved into the property, can you
describe what was behind your property? Can you describe this
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1 alleyway and the property behind it, if you could?
2
A
Yeah, it was sort of an idyllic setting, having
3 come from Harrisburg where we had a 35-foot lot, I guess with
4 a bit of lawn. Fortunately we had a side yard as well that
5 was about 12 feet wide.
6 So here was a lot from which I had to take the
7 irrigation pipes and throw them in a heap, it was a farm, a
8 celery farm, and we selected this lot because of the
9 particular 10cation. It was at the end of the farm.
10 There was a hedge row, a row of Locust trees
11 forming the one side of the 10t, and beyond this hedge row was
12 a creek, a flowing stream.
13
And that is where the alleyway is right now?
Q
14
That is where the alleyway is right now, yeah.
A
IS That originally was nature's way of draining that area. It
16 had formed a gully.
17 One of the first things I did when I moved in was
18 go down to the lumber yard and buy up a bunch of two-by-tens
19 to build a bridge across to enter into the big forest behind
20 us.
21 It was an empty lot that was overgrown with some
22 pretty sizable Locust trees -- a foot in diameter at least
23 and the rest of it was grubby looking. It kind of gave a
24 jungle-like atmosphere for the kids.
25
We went up to the army/navy store and put up a pup
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1 tent for them, and built a rock fireplace. So after dinner we
2 would journey across the street with our marshmallows and
3 proceed to burn them nicely.
4
Q
When the kids were young, how else did they use
5 the alleyway? In what other ways did they use it?
6
A You mean when the stream became an alleyway?
Q Yeah.
A That evolution?
Q Sure.
A If I am going on too much, tell me. Otherwise, I
will give you a complete history.
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Q
Well, let's move on to when the kids were younger.
13 Did the stream become an alleyway?
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Yeah, the stream becomes an alleyway by virtue of
15 the Borough in an effort to try to control the overflow, which
16 as the celery farm became planted with, not celery but
17 macadam, an overflow of rainstorm water became a problem, and
18 I think the area down below was getting flooded pretty
19 seriously, you know, south of us.
20 So they put in, you know, the traditional 10- or
21 12-inch-diamete~ drain pipe, and over filled it. It became an
22 alleyway from a rugged, babbling brook. And the kids were
23 going through an evolution at the time, too, and I remember
24 one of the first projects that we did back there was remodel a
25 woodshed that I bought from a friend of mine who was being
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1 transferred to Japan.
2 And I did a deal with him for 20 bucks, I bought
3 this shed, and it was kind of clap trap. It had a roof
4 pitched in one direction and only pitched back, and the walls
5 were made of some sort of humus construction material.
6 So down the lumberyard again, and bought a couple
7 hundred squares of wooden, cedar shingles, and I built a roof
8 for the thing, a gable roof out of two-by-fours and covered it
9 wi th plywood.
10 Then the fun and games begin. I built scaffolding
11 for the kids to work off, and I had the Sockman kids --
12 Billy's gone I had Billy Sockman, the two Griffiths and my
13 kids -- at least Joey and Jeff. I guess -- I think Mark was
14 too young at the time.
15 But I had them all up on the scaffold, which was
16 all of about three feet, four feet off of the ground, and
17 hammering away putting on these shingles on the roof. Guy
18 Griffins was the eldest, and I think he could muster it, and
19 even Janice, Billy's sister, helped by feeding the shingles
20 from a pile up onto the scaffold.
21 Q So that shed was --
22 A So we took -- oh, you know, the attention span of
23 kids -- so it must have taken weeks for us to rebuild that
24 shed the way it should be. And then Billy mentioned that we
25 eventually moved it up onto the lot.
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1 As a matter of fact, we moved it because Jimmy
2 Williams, who lived up the street from us three houses, wanted
3 to better level his property. One of the witnesses -- Billy,
4 I think -- mentioned that the builder did a lot of work in
5 tapering the properties properly so that the ground didn't
6 have a severe incline into the alley. They brought fill in
7 and created an embankment.
8 Well, Williams still didn't like the curvature of
9 his property. So he wanted to bring in more fill. And he got
10 ahold of some clay fill that was available to him from a
11 construction site, and came down and asked if I could move
12 it so that he could have his trucker come in with fill. So we
13 did. A bunch of guys from the neighborhood just pushed it up
14 over the bank to where it is now.
15 Q How else do you remember using the alleyway with
16 the kids when they were younger?
17 A I didn't participate much. I threw horseshoes
18 with them back there. They were getting older then. They
19 were getting into their own psyche. They were getting more
20 buddy-oriented. And I was being pushed out of the picture
21 more and more as they grew older.
22 But one of the real big activities back there was
23 this biking. And I look at Placey back there, and I am
24 reminded of my eldest son saying, Dad, we were riding and
25 Placey came after us with a baseball bat.
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1 So I proceed to go up and talk to Placey, ready to
2 punch him out. And Placey says, hey, you know I wouldn't hit
3 the kids with a baseball bat. Yeah, I admit.
4 I chased them but I was trying to put the fear in
5 them. I don't like them running around here with their bikes.
6 I said, Hey, face it. It is an open alley. They are going to
7 run around. He said, Well, I will still run after them.
8 Q So how else did
9 A But the culture then, the kids growing up, they
10 became bikers, and it was quite an activity, they even
11 developed, immediately behind our house, some sort of jumps
12 that they used. Evel Knievel was in at that point in time.
13 Q So the times that they used the alley with the
14 bikes was sometime basically from when you moved in in '57
15 until when did they stop riding bikes up and down there?
16 A When they became of legal age to drive on the
17 street.
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Q When they became of legal age, then they had some
A Yes.
Q Did they ever work on their cars in the alley?
A Yeah.
Q Tell us about that.
A Yeah, as the other witnesses indicated.
Q Tell us a little bit about that.
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A Well, I think Ralph even named the car Joey had.
What was it? It was a Ford model of some sort. And then the
famous Spankey -- the guy who turned into Pennsylvania's
biggest used car dealer. Spankey was one of them with these
junkers.
Span key had an old English car of some sort, and
he worked on it back there with them. It was a convenient
spot for them to work, and not get harassed by the cops. The
cops were pretty adamant about the streets being used for
intermittent parking and not projects like rebuilding your
cars.
Q Tell us a little bit about the wood storage aspect
of the alleyway.
A The wood storage aspect, I think you could see
evolution there too, that it was being heavily used for wood
storage, as well as cutting, etcetera.
And then Barb contracted some sort of problem with
sinus. She seemed to be she seemed to be bothered by the dust
in the air from the fire place, even though it was hardly
perceivable, yet it seemed to bother her.
So I quit burning the wood, and then I quit
storing the wood out there as much. And then that seemed to
pass and I started again. I burned probably a cord of wood a
year.
Q In your house?
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and the other cost for cutting it up and hauling it away. So
they were glad to see me coming.
Q So you would bring it then back into the alleyway?
A Yes.
Q And tell us what you would do with it back there.
Would you split it back there and stack it?
A It depends on how it was initially, but if it had
to be, I would cut it into fireplace links and then split it.
Q But you did this in the alley?
A Yeah. Yeah.
Q And from the time -- again, from '57 to '94, did
you do this regularly, on a yearly basis, except for that
time
A With the exception of that incident where there
was the health problem for Barbara. Plus in the period
in '88, '89 and '90 I had a real surge in a business that I
had established in 1976, and it was just puttering along. I
retired in '87, I think, and really started devoting time to
it.
The thing was growing by leaps and bounds, and I
had less time to do my firewood. I had to pay attention to
the store. So there was that lapse for a very brief occasion.
And I think even then the business was founded in
New Cumberland.
up on the other corner one of the properties was
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sold, and the guy proceeded immediately to cut down three huge
oak trees. They were beautiful trees. They must have been
about two and a half feet in diameter at the trunk, three feet
in diameter, and he fell these trees.
I just walked up one day and asked if I could have
the wood. He said, Yeah, I would be glad to have you take it
away. And at that point in time, Bradigan and I were doing a
lot of hunting together. We had quit using his trailer. I
had bought a house at Raystown.
Q When did you buy the house at Raystown?
A '86.
Q Tell me about the wood and how it was stored and
transported to Raystown?
A Well, this was a lot of wood, now, from three huge
oak trees. And I asked Bradigan if he would help me chop it
up, and that we would use it -- I would dedicate that wood to
keeping our big A's warm in Raystown instead of my house.
And it was a deal. He agreed to it very
willingly. He even enlisted his son Wally who hunted with us
to donate his truck to the occasion, when Wally wasn't
socializing. And Wally did a lot of socializing, so that
became a problem for us.
And Bradigan asked Gene Keith, who also has left,
if we could borrow a little trailer that Gene had made that
was just the right size for hauling some nice 10ads of wood.
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We borrowed the trailer, and Bradigan pulled it
with his station wagon, his Ford station wagon, which was one
of the good old Fords with a pretty good motor in it, and many
a trip.
Q So on more than one occasion?
A On more than one occasion. Remember now, these
are three huge oak trees
Q You were hauling
A -- that stood about 50 feet tall.
Q You were hauling the wood from the alleyway to
Raystown?
A Well, yes. Initially we had to make the first
haul from New Cumberland to the alley, where we split it down
further. Some of those sections were so large we had to split
them right in New Cumberland. We couldn't lift them to get
them onto the truck or the trailer, whichever was available to
us.
Then we would haul them up and dump them in the
alley. It created quite a pile, and then on the next trip to
Rays town , whether it was for fishing or whatever, we would
haul up a load.
Q And how often did Mr. Bradigan and his son,
either/or, have the opportunity to utilize the cabin, either
with you or by themselves?
A Um, well, we hunted together every winter from the
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1 time that I bought it in '86. Prior to that we used to use
2 Brad's trailer to go hunting. He had a mobile trailer, and we
3 called it, I think we joshingly called it the '67, because
4 hunting for us was more of an adventure. We would go into a
5
different county each year hunting.
6
Q So from the time that you moved in until
7 approximately '94, when Mr. Bradigan moved out, would you say
8 that you either utilized the alley for stockpiling, cutting,
9 splitting or transporting wood continuously and frequently?
10
A
Yes.
11
Q
On a yearly basis?
12
A
Yeah. Yeah.
13
Q
Was the wood
14
A
I think Harry talked about a boat. He couldn't
15 locate a time frame of when the boat was back there. I
16 brought a ringer built in '82, and it was prior to my having
17 the house up there at Raystown. So I had to bring it home
18
each winter. And I would store it in the alley. So from '82
19
on continuity of use.
20
Q So from '82 to '86 you stored it in the winter
21
time?
22
A Yeah. And this was -- I think Harry mentioned
that he kind of recalled a trailer. Or was it Gene Keith? I
don't know, but it's an -- it was an 18-foot boat with a
trailer.
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Prior to that -- or I guess it was after that, I
think Bradigan then put his house trailer permanently on a
location up at Rays town , the family campground, and I came
upon a little trailer which became available down in
Middletown through some people that I knew, and bought it.
And Bradigan and I hauled it out of Middletown to
Logan Street just opposite the entrance to my basement, where
I had all of my tools, and I had to redo the wiring on the
thing to make it street legal. So I parked it there because
it was directly opposite the tool storage.
And the cops came and cited me for having
permanently located on the street instead of temporarily
parked. So he helped again by towing the thing into the alley
where I proceeded to work on it for quite awhile until I got
the wiring all straightened out.
Q How long would you estimate that that was in the
alleyway?
A I was working so I didn't have much time to work
on it. I would say it was several weeks, maybe a month.
Q What about car storage? Did you ever have any
occasion where you had to store cars or park cars in that
alley?
A Yeah. It usually occurred -- well, me personally,
now. Not the kids. The kids are gone.
Q Uh-huh. Sure.
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A I had a truck that I normally kept on Logan
Street, but if snows would come or the street sweeper was
scheduled and Brad would hear it, he would come and park it in
the alley for me so that there was clear and clean removal of
the snow, and I wouldn't have to worry about shuffling the
truck out. That had been plowed in before. He still has a
key for it. He never turned it in to me.
Q Was that also something that was done on a regular
basis, on a yearly basis?
A Yeah, yeah. So long as it snowed and so long as
the streets needed sweeping. And I had -- there is another
boat that I had.
Q The rowboat?
A A rowboat, yeah.
Q Did you store the rowboat in the alleyway?
A I still have it. I am one of these guys that
hates to give up anything. So I still have the rowboat, and I
got that rowboat from a guy
THE COURT: Well, well, we are starting to go a
little farther than we need to. We are talking about the use
of the alley.
THE WITNESS: The use of the alley is the rowboat.
THE COURT: Well, where you got the rowboat from
is not really important at the moment. Okay?
MR. DUFFIE: We want to focus on --
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THE COURT: I am keeping an eye on the clock. I
need to allocate time for each side.
BY MR. DUFFIE:
Q Just the use of the alleyway.
A The use of the alleyway. I got this boat and I
normally kept it during the fishing season on the river at the
New Cumberland fish and boat dock. There is an association
down there where you can rent space to keep your boat. And
the river gets pretty well iced up. So if you are smart, you
get your boat out. I would get the boat out there and park it
in the alley.
Q And how often? Did you do that frequently?
A Every winter. Every winter.
Q Okay.
A And I covered it with fiberglass back in the
alley. Joe Shuey, who was very good at that, helped me do it.
Q Let me
A I was introduced to Shuey by Bradigan.
Q All of these things that you indicated thus far as
your use of the alleyway, they were all done on a continuous
basis in '57 until the time the fence was erected more or
less?
A Yes. More or less, yeah. And still. And still I
remind you.
Q Okay.
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A I still have wood.
Q As far as the alley is concerned, it is
approximately 12 foot by about 100 feet or so; is that
correct?
A You mean directly behind my property?
Q Correct.
A Otherwise it runs continuously.
Q Just the alley behind the property.
A Yes.
Q Would you say that you utilized the southern end
of that alley more than the northern end of that alley over
the years?
A Yeah, because of its proximity. The easiest
thing
like you drive in with a car, you just drive it in
20, 30 feet.
Q The boat I always kept at the other end.
MR. DUFFIE: That's all I have right now. That is
all I have for now. I will be able to redirect after that
time.
THE COURT: Mr. Turo.
THE WITNESS: Shall I step down?
MR. TURO: Let me ask questions.
THE COURT: Be rapid.
MR. TURO: I will.
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CROSS-EXAMINATION
BY MR. TURO:
Q Mr. Turri, when the Bradigans moved in and built a
house, it was in the early 70's.
A Is that a question?
Q Yes.
A Was it? I think I heard that they moved in in '71
by someone here.
Q Okay.
A That's hearsay.
Q Now, once the house was built, you remember their
house being built?
A Yes.
Q And would you agree with me that after the house
was built, the Bradigans began to create a yard in the area of
their lot with grass and things?
A No.
Q They didn't create a yard?
A Create a yard?
Q Yes, a yard.
A There was a continuity there. There wasn't any
definite line of demarkation. There wasn't anything to be
created. It was there.
Q Okay. Did Mr. Bradigan cut the grass in his yard?
A Mr. Bradigan was a state trooper who worked
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strange shifts. Okay?
Q A yes or no would have been fine, Mr. Turri. Did
he cut the grass in his yard?
A His daughter Kathy cut it most often until he
retired.
Q During the time that the people in the Bradigan
household were cutting the grass, they cut the grass that had
grown up in the alleyway as well, did they not?
A Yes, and I cut it as well.
Q And the Bradigans put a shed back in what you
refer to as the alleyway?
A On a portion of the alleyway. They didn't go all
of the way with it. Brad consulted with me before he put the
shed there, as a matter of fact. He wondered whether it would
be the smart thing to do.
I said, Hey, it's Borough property. They have
pipe underneath there. Something goes wrong, you are going to
have to move it to let them through.
He said, What do you think about it? I said,
Well, I would put it there and then move it, but permit me
room to get by it. So he located it on his half of the alley.
Q Now, your description of your relationship with
Mr. Bradigan, is it that for the most part it was pretty
positive?
A No, I think we are very good friends. Not for the
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most part. We were very good friends.
Q Okay. And he would allow you to come in and put
cut wood there and move it onto your property and even help
you.
A Yeah. I object to the word allowed.
Q You don't believe he allowed you to do that?
A No. We jointly used the alley.
Q You never used that alley believing that you had
rights that he did not have to it. Would that be fair?
A No, I always treated it as if it were communal
property. And as I mentioned to you when Jimmy Williams
wanted to use it to bring truck loads of fill through, I
promptly moved the shed.
Q All right. So you never thought you had any
rights that were adverse or opposite of Mr. Bradigan's rights
to that area?
A I don't think I understand the question.
Q Okay. That's fine. Did you burn wood this
winter?
A Yes.
Q A lot of it?
A My usual cord, I would say. I am still burning
it. I burnt it last night. And if it gets cold, I will burn
it again.
Q You knew that we were down at that property in
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1 October, and we did what we call a view. You knew that?
2
A
I heard that.
3
Q
And it was shortly after that view that you had a
4 bunch of wood dumped right by the fence in this case. Is that
5
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true?
6
A
Well, I don't remember the time frame, but yeah, I
7 have a bunch of wood dumped there because I came across
8 another tree cutting in Mechanicsburg, and said, May I have
9 some? And they said, Yes.
10
Q
How much of this wood that you had dumped there
11 did you burn this winter?
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first set A.
A
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A
Q
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Because I needed to cut it. I have to split it.
23 were
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Well, I cut it periodically. I have removed some
25 of that.
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Q Why didn't you stack it on your property?
A I did. I had no option other than to stack it on
my property. I had to take a wheel barrel and cart it from
there up and around to the other end of the lot.
Q Why didn't you take it all?
A Because I didn't have time to do it all. I will
do it.
Q Since October?
A Since October. It's too damn cold out. Hey, wood
cutting isn't an occupation with me, you know. It's something
that I do for exercise. And I do it at my leisure. When the
weather suits me I will do it. As soon as the weather warms
up, I will be out there again at 6 a.m. Come see me. My
regular routine is 6 to 7.
Q Mr. Turri, I gather that you can, in fact, cut the
wood on your property, and I gather that you can and do so,
cut wood.
A On my property?
Q Is that correct?
A I split wood on my property, and I cut wood on my
property, yeah, with a chain saw, yeah.
Q Now, and I want to make sure that I am clear that
I understand your position here. Is it your position that
Mr. Bradigan never told you to keep your stuff out of his
yard? Is that what you are basically telling us?
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A Absolutely. He never told me to -- he wouldn't.
I don't think he would ever think of doing that.
Q Is it also your position that you never had a
conversation with Mr. Placey when he told you that you had no
right to be in that area; is that correct? You never had that
conversation with him?
A Never.
Q Okay.
A Absolutely never.
Q Okay. That's fine. Do you recall having
conversations with the povilaitises about their desire to have
a fence?
A Yeah. My recollection is a banging on the front
door and an introduction to the Povilaitises when she pushed
her way in after I opened the door.
Q She being this young lady?
A That lady.
Q She pushed her way into your house?
A Pushed her way in.
Q And after she stormed in what happened?
A After she stormed in, she said, I want you to get
that Pontiac off of my property. And I said, What are you
talking about? That Pontiac is parked in the communal alley
back there. She said, That is on my property. I want you to
get that out of there.
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I said, Hey, I will move that Pontiac at my
goodwill. Okay? And the conversation kind of went back and
forth. And she said, If you don't move that Pontiac from my
property, I will see you in court. And I guess she has had
her way.
Q Urn, did you bring this lawsuit?
A Yes.
Q Okay.
A I brought it. I think she planted the seeds for
it, though.
Q Did the povilaitises ask you to move your rowboat
out of the sight of their property because it was dilapidated?
Did they ask you to do that?
A No.
Q They didn't?
A The rowboat was never in
Q Is it, in fact, dilapidated?
A It is not.
Q It is not?
A No.
Q In other words, there is no holes in the hull
anywhere?
A Well, remember, I told you it was fiberglassed and
I think Shuey and I did a hell of a good job fiberglassing,
but in running it up, beaching it in New Cumberland, part of
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the back end of the keel has the fiberglass worn through.
Otherwise, it is still very much in tact.
Q Very much sailworthy as we sit here?
A
Q
backyard?
A
on my bank.
Yes.
How long has it been sitting on blocks in your
povilaitis picked it up and put it on the blocks
I asked him when he did that.
Q You had a tree that fell onto their property from
your property. Do you remember that?
A No, that was not my tree.
Q Wasn't it?
A That is not on my property. That was on the
property the communal property
Q Okay. So the tree --
A -- part of the alley.
Q The tree that fell, your testimony is came out of
this alleyway here?
A Yeah.
Q And that definitely was not yours?
A Absolutely.
Q Can you get to the back of your property now with
that fence there?
A With difficulty. I can walk through, yeah.
Q You can get to it, though, can you not?
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A I don't have complete -- I can't push a wheel
barrel through there.
Q And Logan Street is to the south side of your
house?
A Yes.
Q And Runson Road is to the west side of your house?
A Yes.
Q So you have public streets on two of the four
sides of your property, do you not?
A Yes.
Q Did you ever put a driveway or a parking pad on
your property?
A Did I?
Q Yeah.
A No.
Q But you could, couldn't you?
A Why not.
Q You could, could you not?
A Yeah.
Q Okay. You chose not to do that?
A I chose not to. I preferred green to concrete.
Q Thank you, Mr. Turri.
THE COURT:
MR. DUFFIE:
Anything else?
Just a quick followup.
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REDInECT EXAMINATION
BY MR. DUFFIE:
Q As far as the maintenance of this alley, cutting
the grass, is there grass back there now or was there grass
prior to the fence going in the alleyway?
A Yes. I must admit that my bank encroaches the
alley considerably. And I have got I've planted on it.
Q Okay. So you shared all of the maintenance of
this alleyway with the Bradigans?
A Did I?
Q Did you?
A Yes, definitely. Again, I say that when Bradigan
retired, I felt he had plenty of time on his hands, he could
do it. And he joshingly would say, Hey, you know, I had to
maintain your section of the alley again. When are you going
to start paying up?
And, my retort would be, Well, have another beer.
That's how you payoff Gary, who is one of the local guys who
did a lot of work for Bradigan, and Bradigan would feed him a
beer or two to keep him coming.
Q Bradigan, did he store a trailer back there in the
alleyway?
A Brad had a trailer -- his trailer was stored
primarily up against his garage, which was out on 33rd Street.
So he stored it in the area between him and Miller.
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Q How often?
A He would put the trailer back there when we would
be getting it ready to go on a trip.
A He would pull it from the spot up near the house
and back it in there, and we would load the thing up very
conveniently ba~k in that area.
But he always had a fear of the trees. It was
almost a phobia with him that the branches would fall and bash
his trailer. So he tended to keep his trailer out from under
anything.
Q If you could, to summarize, just characterize what
you felt or how you felt about the title or ownership to this
particular property during the time that Mr. Bradigan was
there as your neighbor, and what did -- how did you __
A Title or ownership to the alley?
Q Correct.
A Why, it was -- everyone regarded it, including me
and Brad, as community property, as an alley. I think even
Placey -- despite the fact that he probably didn't want to
be -- considered it as such. He even went to the extent to
macadam it to create a parking lot out of it. I'm sure he
didn't macadam it for the community.
Q Okay.
MR. DUFFIE: I have nothing further.
MR. TURO: Just one final follow-up, Your Honor.
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RECROSS-EXAMINATION
2
BY MR. TURO:
3
Q Mr. Turri, I asked you through counsel three years
4
ago to have your line surveyed so we knew exactly where your
5
line was and where this used-to-be-alleyway was. You never
6
did that. Why not?
7
A I had a survey done years ago, and the pins are in
8 there. Why should I do it again? I think Mark did ask me to
9
have a survey done, and I said, It has been surveyed. I know
10
where the lines are.
11
Q You never bothered to provide that information to
12
us, did you?
13
A Mark?
14
Q No, I am asking you.
15
A Well, I don't talk to you. I talk to my attorney.
16
And I told him, you know, I think it was up to him to speak to
17
you.
You didn't ask me, did you?
18
Q Anyway, you didn't have the survey done or you --
19
A I did have a survey done. I am telling you that.
20
Q Do you have a copy of it?
21
A Yes.
22
Q Where is it?
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A
Is it on my deed?
24
Q
Did you give it to Mark?
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A
There's a guy --
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1 Q Let me just --
2 A I have the survey, yeah.
3 Q When you told Mr. Duffy three years ago you had
4 the survey done, did you give him a copy so that he could give
5 it to me?
6 A Well, my survey was done in 1957 by a surveying
7 firm that the name ended with B-E-R-G. And if Mark asked me
8 for records of the deed and of the survey, I gave it to him.
9 I certainly wouldn't withhold it.
10 Q So your testimony is that you gave him the survey.
11 He has the survey. I am just trying to find out --
12 A I really don't know if he asked me for the survey,
13 but I will tell you that the survey is available.
14 Q But you didn't bring it into Court here today.
15 A I didn't bring anything into Court with me today.
16 Q And the reason I asked that question, Mr. Turri,
17 is we don't really know exactly where your property line ends
18 in relationship to that fence today, as we sit here, do we?
19 MR. DUFFIE: Your Honor, if I may interject. We
20 have entered a stipulation of fact. One of the exhibits to
21 that stipulation of fact is a subdivision plan or -- I'm
22 sorry -- not a subdivision plan but a plan of the Bradigan
23 property which shows the rear property line. We have always
24 proceeded under the assumption of a 12-foot off curb cut. It
25 is--
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THE COURT: Wait. Wait. This is legal argument.
You made an objection. What is it to the evidentiary basis of
Mr. Turo's question.
MR. DUFFIE: The evidentiary basis is we have
already stipulated to this fact.
THE COURT: You stipulated to where his backyard
ends?
MR. DUFFIE: Well, we have stipulated that their
backyard --
THE COURT: It is a different question. That is
different.
MR. DUFFIE:
THE COURT:
THE WITNESS:
No, we have not --
Then your objection is overruled.
I think, if I may answer your
question. I think the boundary line is established by the
curb lines in the alleyway.
BY MR. TURO:
Q In other words, Mr. Turri, you are assuming that
the curb cut is a definitive line, are you not?
A Yeah, I am assuming that.
Q Okay.
A Because I haven't looked at where the pins are
with relationship to that curb line.
Q My point is you brought a lawsuit here asking for
use of this portion of the alleyway and never provided us with
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1 anything to show us exactly where this alleyway is or
2 reference to your property line by a survey, even though it
3 was asked for three years ago. Now, isn't that true?
4 A I don't know that to be true. I don't know that
5 you asked for it. I think Mark is going do have to help me
6 there.
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17 (Whereupon, a recess was taken at 11:01 a.m.)
18 MR. TURO: Judge, I would normally take the
19 appropriate course, but because we do have a couple witnesses
20 who have come from far and wide, I will call them briefly.
21 THE COURT: Very well.
22 MR. TURO: Mr. Placey.
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MR. TURO: Okay. That is all I have.
THE COURT: Thank you.
THE WITNESS: The survey I will give it to you if
you want it.
THE COURT: Thank you. We wi 11 take a brief
recess. And do you have any other testimony?
MR. DUFFIE: No, I don't, Your Honor.
THE COURT: Fine.
MR. DUFFIE: Thank you, Mr. Turri.
THE WITNESS: No problem.
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Whereupon,
RICHARD PLACEY,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. 'l'URO:
Q Would you state your full name and spell your last
name for the record?
A Richard Placey, P-L-A-C-E-Y.
Q Your profession, sir?
A I am an attorney in private practice.
Q Do you enjoy testifying?
A Excuse me?
Q Are you enjoying testifying?
A I have done it on occasion.
Q You you are a neighbor that lived on North
33rd Street?
A That is correct.
Q How long have you lived at that location?
A We've lived there since 1965. We built the house
that we occupy.
Q Now, getting right to the heart of why you are
here. It's my understanding that you at some point had
contact with Mr. Turri about his use or non-use of the
alleyway. Could you tell the judge your recollection of those
incidents or incident?
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1 A When we built the house, the area that has been
2 described in this proceeding as the alleyway, we grassed that
3 in in part, planted some shrubberies on it and created a
4 driveway and a basketball court there.
5 Probably two or three years after we moved in, one
6 afternoon I was home, two of Mr. Turri's boys came up through
7 that area riding motorized bicycles, and they were chewing up
8 the grass. So I went over to them. I said, Fellows, I don't
9 want you riding here anymore.
10 And they said, Yes, sir. And left. And it wasn't
11 too long after that that they were back up again. And I
12 called the police and Camp Hill Police spoke to them. From
13 that time until the present they have never again ridden
14 anything up that alleyway.
15 That evening I had a call from Mr. Turri, and he
16 said, Why are you stopping my boys from riding up through that
17 alleyway? I said, come on up to the house, have a drink, and
18 we will go over this.
19 He came up and we sat down in my living room and I
20 said, Joe -- well, first of all, he said it is a public alley,
21 and my boys have the right to ride up there. And I said, Joe,
22 it is not a public alley. And if it were a public alley, then
23 your boys would need to have a driver's license to ri.de a
24 motorized bike up there.
25 It is not a public alley. It is a private area.
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But you folks who live on the west side, I guess it is, of the
west side of the alley, don't have any rights in it because
the way that this area was developed, only the folks who live
on the 33rd Street side of it have rights in it.
Joe said, Well, I disagree with you. He said, If
you do get an attorney, perhaps the Court can resolve this.
Well, from that day to the present, I never heard any further
from Mr. Turri, nor did we have any further discussion about
the matter.
Q So you had a conversation and put him on notice
that in your opinion, as an attorney and as a homeowner, he
had no right to use that alleyway behind his house?
A Well, I was referring to the alleyway as a whole.
Q Right.
A Not specifically about his house.
Q No, but I mean the alleyway that begins behind his
house that would have come up behind your house.
A It comes up behind my house and goes right up
North 33rd Street, if you look at it from the plan.
Q So, when Mr. Turri testified that there was never
any discussion with you about those legal issues, that is just
not correct.
A That is correct.
Q Did you yourself ever witness any of the various
uses that Mr. Turri has described behind the Bradigan home?
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A I can't say that I did.
Q Did you tell other neighbors about their rights to
use that area privately?
A Yes. Yes, I believe we discussed it with some of
our neighbors.
Q Could you give me an approximate time period that
this conversation with Mr. Turri may have occurred?
A I would say late 60's, 1970. I know his boys were
then under the age of 16. He testified to their ages, and I
don't recall what he said their birthdays were.
Q And from what you testified also, then, I gather
he never took you up on your suggestion that he have his own
attorney look into this until this lawsuit started?
A I never heard anything further from Mr. Turri or
from anybody regarding Mr. Turri's rights to use the area.
Q But again, his kids never showed back up again in
your area?
A No.
MR. TURO: That is all I have. Thank you,
Mr. Placey.
CROSS-EXAMINATION
BY MR. DUFFIE:
Q Mr. Placey, you indicated that you didn't notice
what Joe was storing back there or how he was using it behind
his house specifically.
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A Yeah, I can't specifically talk about any of that.
Q But when you said that, do you mean in general you
don't have any recollection of either the Bradigans or
Mr. Turri storing anything back there?
A I really don't have any recollection of what
you know, who was doing what back there. I really can't see
it from my property. And there are hedges and there is fences
in between so I can't see it from my property. So I really
can't tell you what -- who was doing what back there
Q Okay.
A -- with regard to the Turri and the Bradigan
property.
MR. DUFFIE:
MR. TURO:
THE COURT:
I have nothing further.
That is all I have, Your Honor.
I just want to make sure, Mr. Placey,
that I recall the view. Your driveway comes off of 33rd
Street, your macadam driveway actually lies over what was the
alleyway.
THE WITNESS: I believe that is correct, Your
Honor.
MR. TURO: And, Your Honor -- if I might add,
Your Honor.
The backyard and along the side of your backyard
would have also been part of the original alleyway.
THE WITNESS: That's correct. Part of my backyard
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and side yard is part of the original alley.
MR. TURO: Which is now yours.
THE WITNESS: That is my position.
MR. TURO: I didn't mean to interrupt, Your Honor.
THE COURT: I am recalling it. I just want to
make sure that I am recalling it correctly.
MR. TURO: Thank you, Mr. Placey.
I call Mrs. Bradigan to the stand.
Whereupon,
ELIZABETH K. BRAnIGAN,
having been duly sworn, testified as follows:
DIRECT EXAMINATrON
BY MR. TUROI
Q Would you state your name and spell your last name
for the record.
A Yes, my name is Elizabeth K. Bradigan,
B-R-A-D-I-G-A-N.
Q And Mrs. Bradigan, did you own the property where
the povilaitises now live?
A Yes, we did.
Q When did you buy the property?
A We bought the in 1970, in the spring. We started
to build in May of 1970, but we didn't move into the property
until February of '71.
Q Now, when you bought the property, was it sort of
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an open field or --
A Absolutely.
Q Okay. And you were the first house built on that
property?
A
That's correct.
Q
Once you built the property, did you create a
yard?
A Yes, we did.
Q Did you cut the grass in the yard?
A I didn't but my husband did.
Q No, if it wasn't your husband, it was your
daughter.
A Well, I know. She may have done it a couple times
when he couldn't do it but he did it.
Q Did you plant grass the whole way back to the
beginning of the bank?
A Yes, we did.
Q Did you treat that area that everyone has referred
to as an alleyway as your yard?
A Yes.
Q Did you build a shed in that area?
A Yes.
Q Did you store a camper in that area?
A Yes, we did.
Q Did your kids play in that area?
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A Yes.
Q Did Mr. Turri, without your permission, ever go
into that area?
A No.
Q So you never had to kick him out because he wasn't
there; is that
2
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That's correct.
A
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Now, you heard a lot about storing wood and
Q
9 cutting wood, what is your recollection about that?
10
Well, Mr. Turri never stored any of his wood in
A
11 our backyard. His wood was up in his backyard. We had our
12 own area off of our porch 'cause we had bought a stackable
13 thing that that's where we stacked our wood. So there was
14 never he never had any wood out there.
15 Q Did you and your husband occasionally allow him to
16 dump wood in the back of your yard so that he could then put
17 it onto his yard?
18
I don't ever remember him dumping it in my
A
19 backyard.
20
Did you ever allow him to access his backyard from
Q
21 your backyard?
22
He has come in already, yes.
A
23
Were there times that you allowed him to park a
Q
24 truck back there?
25
He never parked a truck back there. We had the
A
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1 key, as he said we did. And if the -- when we would hear the
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2 snowplow coming, my husband would go out and many times drive
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3 around the block to that. Then when the snowplow finished he
4 would park it back out on the street. There was occasion,
5 though, when it was back in our yard that I remember, one time
6 he did have it back there. It was there.
Q
But I gather your understanding and relationship
7
8 with Mr. Turri was that it was friendly, it was neighborly,
9 and you gave him an occasional permission to be in your
10 backyard to access his backyard?
A
Yes.
Q
He never did it without your permission?
A
No.
Q
Let me show you some photographs, if I could.
15 Again, this would be out of A -- I'm sorry
B. Let's start
16 with number 1. What does that depict?
A
That is our trailer, our Dutchcraft. Our '72
Q
Is that sitting at the back end of your property?
A
Yes, it is, in the alleyway.
Q
1975 or so?
A
Probably.
Q
Okay. And how frequently did you keep your camper
24 back in that area?
A
During the early part it was back there all of the
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time. There was a period of time for about three years we had
it permanently at Rays town , but then it was brought back down
and put there.
Now, during the winter, because of the trees and
the storms and all, my husband did store it alongside of our
garage.
here.
But come spring, in the nice weather, it was back
This is where we wanted it.
Q And I gather that there wasn't anything
obstructing it, because it was only your stuff at the back of
the yard?
A Correct.
Q Here is a picture, number 2, is this the same
camper?
A Yes, it is.
Q It is just showing that it is stored back in what
everybody referred to as the alleyway?
A Correct.
Q You never believed this was an alleyway?
A No.
Q You treated it as your backyard?
A Absolutely.
Q Mr. Turri believed it was your backyard?
A Yes.
Q Number 3, this is the picture of the pool, your
neighbor's pool?
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A Yes, it is.
Q And I gather
A That was my son's camper that slid onto his truck,
and it was my shed beside it there. And I think there is some
other stuff that belongs to my son.
Q And just to clear up something Mr. Weltmer may
have been confused about. When your neighbors built that
pool, nobody accessed it?
A No. Miller's had to replace the concrete there.
Q Number 4, this picture indicates the back of your
yard in 1992/'93?
A Yes.
Q And what does that show at the back of your yard?
A Well, it has the shed. There is the top to a
truck there, and I am not sure what we have covered up there.
There may be some logs. I won't testify. I am not sure
'cause it looks like wood. I won't deny that. And of course
it is the Miller's fence that comes along there?
Q Okay. And is this all basically your belongings
along here?
A Yes, it is.
Q Would there have been a time when you looked out
from your house and you would have seen belongings of
Mr. Turri back in that area?
A Never.
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there?
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And we are talking from 19
When we moved in in '71
In?
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Until we moved in 1994.
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Okay. So for 23 years he wasn't basically back
No, he was not.
And this one, this final picture, number 5, is
9 this also your trailer
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Yes.
Q
parked back in what everybody referred to as
Yes. We must have had an early snow because I see
14 there is snow there.
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So the back of your yard would occasionally, with
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your permission, be used for access to the back of his yard?
A Could be, yes.
Q But it was not a storage area?
A No.
Q And I gather, once you moved in and built your
house and built your yard, it wasn't an area for kids riding
through with bikes either?
A
No. They did when we first moved in 'cause we
!J
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24 didn't get our trailer until '72. Okay? So the year of '71
25 they did. But I didn't like if because it was a dust bowl and
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I told my husband I didn't want to be responsible if those
children got hurt.
And then when we brought our trailer in, and we
told them we didn't like it. So for awhile they cooled off,
but they did start again in '72 after we purchased our
trailer, and that is when my husband went over and talked to
his wife.
Q And told him to keep the kids out of there?
A Absolutely. Because we weren't going to be
responsible for them, and we didn't want any damage done to
our trailer.
Q And did they stay out after that?
A Yes, they did.
MR. TURO: That is all I have at the moment,
Judge. Thank you.
CROSS-EXAMINATION
BY MR. DUFFIE:
Q Mrs. Bradigan, good morning.
A Good morning.
Q You indicated that you planted grass to the bank
back in the alleyway.
A That's correct.
Q Is it your testimony that Mr. Turri never either
maintained the bank or mowed the grass back there?
A No, my husband did that.
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Okay. Mr. Turri never did?
Q
2
A I never saw him -- in fact, I can remember taking
3
things and showing them in his backyard because he was mad
4
that he hasn't policed the area.
5
And you indicated also that there was never any
Q
6 wood stored within the actual alleyway we are talking about.
7
That's right.
A
8
Q
Was there ever any dumping of wood, chopping of
9 wood, splitting of wood or anything like that that went on in
10 the alleyway?
11
A
I don't remember that it was. I don't -- I won't
12 say that they didn't chop it, but I know that it was never
13 stored there, because his was kept up on his backyard because
14 I remember it up on his bank, and ours was put out on our side
15 porch.
16
Q
You said it wasn't stored on the actual alley but
17 up on his bank.
18
A
Well, it is flat land. You go up his bank and he
19 has flat land. It was stored up there on pallets.
20
Q
How far from the actual alley to the best of your
21 estimation do you think that was stored?
22
A
About 15 feet.
23
Q
How did he bring that in? Do you recall? It
24 wasn't through the alleyway? Did he bring it through his
25 yard?
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A It was dumped off in the alleyway.
Q And they transported it from the alleyway to the
skids?
A Yes.
Q When Mr. Turo was asking you about whether or not
Mr. Turri had to ask you permission, did he ever actually ever
ask you explicitly, expressly, May I in fact use this for this
particular purpose?
A He didn't ask me personally, no.
Q Okay. Did he ever ask you expressly or -- strike
that. Did you ever expressly or explicitly indicate to him
that he is not to be permitted in there for a certain purpose?
A I had no reason to tell them because he never
asked me. lt was understood it was my property.
Q Okay. So it was an understanding there was never
any conversation about, Okay, Joe, you are allowed to use it
even though it is our property. Or Joe, you are not allowed
to use it because it is our property? There was never an
expressed conversation?
A No, there was never an expression there.
Q Did you ever do anything at any time during your
residency on North 33rd Street to impede anyone's access to
the alleyway? In other words, to fence it off, rope it off,
put stakes out there?
A No, we didn't. But with everything that was
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parked there, between my son's truck and his boats, and our
trailer, and what have you, I don't know what else ever could
have been put there. I mean, they would have had to come
across my main grass to cut around it. There would be no way
that they could do it.
Q The pictures that Mr. Turo has showed you earlier.
I believe they are marked as Exhibit B and numerically marked.
Do you recall these pictures?
A Yes, I do.
Q Most of the pictures, if you recall, show the
northern end of the alley or the right-hand side of the alley
from your perspective; is that correct?
A Yes.
Q Did you ever on -- well, did you ever store
anything on or utilize frequently the left-hand side of the
southern end of the alley?
A Yes, because that is where my son's boat was. It
is not on that picture. My son had two boats and they were
parked there. And then behind that, his truck many times he
parked in off of the 'cause we didn't like the looks of it
and it was better if it was parked in our backyard. It was an
old gentleman.
Q That's all I have for now.
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REDIRECT EXAMINA~
BY MR. TURO:
Q Just to verify that so I am clear, Mrs. Bradigan,
what you are basically telling us is that you utilized the
back of your yard to store stuff?
A Correct.
Q And Mr. Turri could not even if he wanted to
because there wasn't any room to store stuff?
A That's right.
Q Okay. That is all I have.
THE WITNESS: Okay. Thank you.
MR. TURO: Thank you, Mrs. Bradigan.
THE WITNESS: You are welcome.
MR. TURO: Mr. povilaitis, Your Honor.
Whereupon,
JOHN F. POVILAITIS,
having been duly sworn, testified as follows:
DIRECT EXAMINATiON
BY MR. TURO:
Q State your name and spell your last name, please.
A My name is John F. Povilaitis,
P-O-V-I-L-A-I-T-I-S.
Q You are the neighbor to the rear of Mr. Turri.
A That's right.
Q And the Defendant in this lawsuit?
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A That's correct.
Q Your profession is what, Mr. povilaitis?
A I am an attorney.
Q When did you move into the property?
A We purchased the property at 200 North 33rd in
July of 1994, and I occupied the residence immediately
thereafter.
Q The day you bought the property, as you looked out
your backyard, did you see a backyard that was a grassy
area
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A Yes, that's correct.
Q -- back to the bank of your neighbor?
A That's correct.
Q Was there anything in that backyard area when you
purchased the property?
A No, there wasn't. There were a few areas of
ground that indicated where a shed and some other property the
Bradigans had, had been located, but there were no structures
there.
Q There was no wood there?
A No.
Q There was not a boat there?
A No.
Q There weren't any cars or trucks?
A No, there weren't.
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Q Now, when was the first time that something showed
up in that alley -- or, I'm sorry, in your backyard that
should not have been there?
A There was nothing other than what I have described
in our backyard from July of '94 until April of 1995. And in
April of '95 my wife and I observed an old Pontiac had
appeared in what I guess would be the south side of our yard.
Q What did you do?
A Well, since the -- it looked like the kind of
vehicle that hadn't been maintained. We thought perhaps
someone had broken down.
There had been a rainstorm that previous day, and
that in combination with the appearance of the vehicle it
suggested to me that perhaps someone had had some trouble, and
being concerned about leaving it on the street, they pulled it
off into the yard.
So we contacted the Borough police to see if they
had been informed of that because no one had contacted us, and
they had no information on that.
Q Did you discover that it was Mr. Turri's car?
A Yes. I went over to Mr. Turri's home to ask as to
whether or not that was his vehicle or did he know whose
vehicle it was, and he indicated that it was his vehicle. And
I requested at that time that he remove it.
At that point he explained to me his belief that
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1 the car was located in what he considered to be public
2 property, a public alleyway, which was certainly
3 disconcerting.
4 It would have been one thing to hear that he
5 believed it was his property or he had some right to that
6 property, but he contended that it was public, and that anyone
7 could use that property.
8 Q Did he move the car?
9 A Yes, he did. Which was a source of concern
10 because of the rain storm, it was sinking into the grass, and
11 disturbing the lawn. So he did remove is it shortly
12 thereafter.
13 Q And did Mr. Turri thereafter attempt to utilize
14 your backyard again?
15 A Yes, and actually in the same month, April of
16 1995, on another day we looked outside and saw an old rowboat
17 -- I am not a sailer. I don't know if it is technically
1B correct, it appeared to be a rowboat -- stacked up on cinder
19 blocks in what would be the north end of our yard. I
20 suspected, as in the case of the vehicle, this was also
21 Mr. Turri's. So I discussed the situation with him.
22 Q And how did that discussion go?
23 A Again, Mr. Turri reiterated his belief that the
24 area in question was a public alleyway, that anyone could use
25 to store property or what have you or use in any way. Which
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1 was again disconcerting because, you know, we were concerned
2 about if that were the case that certainly it would be a
3 source of loitering and other mischief.
4 That was disconcerting, but I explained to
5 Mr. Turri that we considered the boat and the cinder blocks to
6 be an eye sore that really wasn't objectionable.
7 He stated that it was probably not visible from my
8 house. Which it certainly was. Visitors at our home asked me
9 about my boat. It was natural to assume it was my boat given
10 its appearance and location.
11 So in an effort to comprise the situation, my wife
12 and I discussed with Mr. Turri the fact that we were going to
13 purchase a shed to replace the shed that the Bradigans had
14 previously had in that area, and if he would keep the rowboat
15 or whatever it was behind the shed, and if he would in the
16 future confine anything he wished to store in that sloped area
17 behind the shed that, you know, maybe that would be a
18 resolution of this matter.
19 We thought Mr. Turri agreed with that. The shed
20 was purchased, I believe in May of '95 and installed in June
21 of '95, and with the assistance of a friend we relocated the
22 boat behind the shed.
23 It wasn't a far distance to go, but we had to move
24 it a few feet to make sure it was positioned behind the shed
25 and on the slope. I think that was June of '95.
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Q Did you around this same period of time discuss
with Mr. Turri the possibility of putting a fence up?
A Yes, with the second encroachment and what we
thought was our yard area, what we treat as our yard area, and
confirmed with the Bradigans they had treated as their yard
area.
I raised the possibility of a fence perhaps being
necessary to more or less definitively resolve this situation,
and we had a very brief general discussion about where such a
fence might be located. It was my thought that it was
appropriate to put it at the foot of the embankment.
That seemed reasonable to me because there were
these curb cuts on Logan Street, if they are accurately
situated they might indicate the start of the alley. It
wasn't clear exactly at which angle the alley ran.
However, from talking to my neighbors, it appeared
as though the practice on our block was for the sloped area,
which takes you from the higher elevation of Mr. Turri's
property to the lower elevation of our property, that sloped
area seemed to be the dividing line.
I suggested to Mr. Turri if we come out the next
day, we could pin down where such a fence would go. The next
day he didn't return to the area. We were ready to discuss it
but nothing happened.
Q You actually set up an appointment and a time?
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1 A We were expecting around the same time the next
2 day we would have a discussion but it didn't occur.
3 Q So you had the shed delivered May/June time frame?
4 A That's correct.
5 Q But you didn't put up a fence at that point?
6 A No, no, we didn't. As I said, we were hoping,
7 with the understanding that any additional property Mr. Turri
8 was interested in locating there behind the shed, that we
9 could both be satisfied.
10 Q When did Mr. Turri again enter your backyard?
11 A Well, at the end of that same year, December of
12 1995, all of a sudden a number of pallets of logs appeared
13 again in this area, actually on the flat portion of our yard.
14 Before you hit the slope there were -- I can't
15 recall the exact number anywhere from 3 to 5 pallets of cut
16 wood that obviously Mr. Turri had obtained from felling a few
17 trees at the back of his property.
18 And he actually, I believe, cut a couple steps
19 into the slope. So it appeared to be a mini-stairway as well
20 as these pallets of logs that had appeared. And that was very
21 disconcerting also because we thought we had an understanding
22 as to how we could jointly use that area, and that was
23 certainly in disregard to that understanding.
24 Q Well, again, the understanding was that if he
25 wanted to store things that it would be behind the shed out of
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sight?
A That's correct.
Q Did you have a confrontation with him about this
wood into your back yard?
A Yes. My wife, in my presence, called Mr. Turri's
home, and I believe it was his wife that answered. She spoke
to a person by the name of Barb. I don't know her last name.
I assume it is Turri.
But in any event, she raised the issue of, What's
going on, basically? We thought we had an understanding as to
how the area was going to be used. Now all of a sudden there
are these series of pallets of wood in what we considered to
be the yard.
And Barb indicated that Mr. Turri was not home but
that he would -- she would discuss it with him, and they would
get back to us. We received a return call, which my wife
received in which Mr. Turri simply stated the boat goes, but
the logs stay and he hung up.
Q Is this the incident where your wife then stormed
into his house?
A She went over, yeah, to discuss this at additional
length with him. I was delayed and came over shortly
thereafter, but that was the occasion when, I believe, both my
wife and I were in Mr. Turri's home.
Q Did you storm in also?
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A I wouldn't describe it as storming in.
Q What was the discussion during this meeting?
A Yes, we, you know, brought up this issue. You
know, basically, What is going on? We thought we had an
understanding how this area was going to be used. You are
forcing us to construct a fence with these encroachments.
And Mr. Turri reiterated that it was public
property in his view. He had no interest in a situation that
would result in him having to pay taxes on that area. He even
basically said, No, you know, that's how it is basically. He
said, Take it or leave it.
We indicated at that time again, Well, you are
forcing us to do a fence. And at that time he actually made
the comment, Well, get me estimates, and maybe I will pay for
part of it.
But frankly at that point we had had so many
broken deals, if you will, we really didn't think it was
feasible to work this out. What type of fence? Exactly where
it would be located? Who would have responsibility for what
share of the cost?
So we simply moved the hedge on our own
initiative, and in the May/June time frame of 1996, arranged
for the fence to be constructed.
Q And you situated the fence exactly how and why?
A We instructed Tyson fence, who was the company
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that erected the fence for us, to basically establish the
fence at a right angle to our neighbor's existing fence. This
is our neighbor to the north, Mr. and Mrs. Miller.
They had a somewhat similar fence already erected
as a fence between our two properties along our side yard. I
instructed Tyson to basically start our fence wherever
Mr. Miller's fence stopped, and simply go in as straight a
line as they could manage, south to Logan Street area.
I asked them to stay at least a foot away from the
slope that was between Mr. Turri's backyard and our backyard
because I think it is a general good rule of thumb to at least
create -- not take every last inch of what you think you are
entitled to, but create a little area back from the slope.
That would also allow me to, when it was necessary
to maintain the fence, to be able to go on the other side of
the fence and clean it or do anything that was required.
Q Did you obtain a permit from the Borough of Camp
Hill to put this fence up?
A Yes, we did.
Q And they did issue it?
A That's correct.
Q At some point before or after this, did a tree
from Mr. Turri's area, property, whatever, fall into your
yard?
A Yes, it was, I believe in the first quarter of
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1997, a tree came from -- well, it's all hard to describe.
2
These are trees that are basically at the top of what we've
3
been referring to as the slope of the sloped area.
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4
I always assumed that those were Mr. Turri's
5 trees, however, from speaking to the Bradigans and other
6 neighbors and hearing the testimony today, I think it is
7 pretty clear he considers these trees to be somehow in the
8 alleyway.
9
So I guess consistent with his view he made no
~
10 effort to, you know, remove the tree or repair the damage that
11 it had done to our fence when it fell through the fence into
12 our yard.
13
What were the costs that you expended in order to
Q
14 fix the damage from this tree?
15
We have an invoice from Tyson to repair the fence.
A
16 In addition there was some expense associated with retaining a !
17 nursery company to remove the tree.
18
$195.00 to fix the fence?
Q
19
A
That's correct.
20
And $325.00 to have the tree taken out?
Q
21
A
That's correct.
22
And that came from a tree that you believed or
Q
23 believe was on Mr. Turri's property?
24
Yes. And in fact, if -- obviously Mr. Turri
A
25 thinks otherwise, he believes it to be in the alley, which
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1 just reinforces my complaint, which is to the rear where our
2 fence is, relative to what portion of the alley because if
3 those trees are in the alley, they are up the slope.
4
You can't assume that the alley is the 12-foot
5 area at the base of the slope, which is part of our yard. So
6 that alley goes at some angle, because Mr. Turri himself
7 apparently believes those trees are in the alley. Which is
12
A
Yes.
8 why, I guess, he doesn't maintain any of the trees along the
9 back of the property.
10
Q
As a result of this law suit, have you incurred
11 legal fees?
13
Q
Are those legal fees as of today $3,000.00?
14
A
Approximately, yes, not including today.
15
Q
Did you ever believe other than the back of
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16 that -- back of your yard was, in fact, your yard?
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A
No. I mean, for the first, roughly year we were
18 in the property, we never saw Mr. Turri in the backyard. He
19 did start some lawn mowing in the summer of 1995.
20 Over a year after we were there, I would notice on
21 occasion that he would make a couple passes at the base of the
~
22 slope back and forth with his mower. That was the first time
23 I had seen Mr. Turri do anything in the way of something that
24 could be considered maintenance in that area.
25
Q
What was your reaction after Judge Hess and
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1 Mr. Duffie and I came to do a view, and you saw these logs
2 that had been dumped by your fence?
3 A Well, I was certainly dismayed by this. From the
4 time that we received the letter indicating on Christmas Eve
5 of '96 that Mr. Turri intended to bring suit, and we were to
6 remove the fence immediately, I have been careful not to, you
7 know, make any changes in the area. You know, like, let's
8 leave it as status quo until we get this resolved.
9 In fact, after the fence was erected in 1996,
10 Mr. Turri started leaning pallets up against the side of the
11 fence, which certainly prevented me from doing any maintenance
12 on the fence on that side. That is not the kind of thing I
13 like. I like to keep things looking good, but in deference to
14 the fact that this was a controversy, I refrained from doing
15 anything about it.
16 So seeing those logs, which certainly blocked our
17 ability to move anything into the yard from that side of the
18 fence was upsetting, and I thought completely unnecessary.
19 But it was consistent with Mr. Turri doing these things
20 without contacting us or saying anything to us.
21 Q Without describing each of these pictures that are
22 going to be in exhibit A, I believe, 1 through 21. I will
23 just highlight the first one. It is the tree that you
24 described falling from Mr. Turri's area?
25 A That's correct.
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Q And then the damage done by that tree, and I
believe the rest of the pictures show your backyard before the
fence was erected?
A That's correct. And you can see in some of those
photographs the bare spots that represented where the
Bradigans had a storage property.
Q And some of these pictures you can see where the
rowboat craft had shown up.
A That's correct. That is where Mr. Turri placed
the boat.
Q And then the final pictures again chronologically
show the shed being delivered and replaced and ultimately the
shed where it is placed today?
A You can see where the wood is behind the shed.
Q I want to make one last point. I think that we
should reiterate that wood blocking a fence area keeps you
from getting into your backyard.
A Yes, that's correct. Those two sections of fence
are removable. It doesn't happen often but on occasion it is
necessary for the maintenance of our house to move a vehicle
through there.
We purchased a playset for my son and daughter
last year, and to get the equipment in to level the area and
put the mulch down and so on we had to take those two sections
of fence down, which were designed to be removable and allow
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the equipment to come in. And of course that is not possible
now.
Q And he knew that you needed to have access to that
area in May of this year?
A That's correct. We, urn, we are hoping to install
a concrete patio. And the person who is going to do that for
us indicated that they would have to move a small digging
machine of some sort into the yard to do that, and that is
basically the only area that we can do it in.
Q Has Mr. Turri made any attempt to assemble those
logs in such a way that you could access it into your yard?
A No, they are kind of arrayed, helter-skelter
pretty much.
Q Has he done anything since they've been dumped, as
far as you can see?
A Well, he was actually working out there one day
and appeared to be carting off one or two pieces, but the bulk
of them stayed there.
Q That's all I have. Thank you.
MR. DUFFIE: I have a couple of follow-up questions,
Your Honor.
CROSS-EXAMINATION
BY MR. DUFFIE:
Q Mr. povilaitis, you indicated that you obtained a
permit from the Borough.
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A That's correct.
Q Did you in conjunction with filing the application
submit a sketch plan?
A I recall there was a form at the Borough Hall that
we had to complete that required you to actually draw the
location of the item that you were going to construct and I
did that. I believe the person's name was Risser who I did
this with.
Q Did you identify on that sketch plan the setbacks
from your property lines and so on and so forth to comply with
Borough ordinances?
A I believe there were setbacks. I frankly don't
recall the details. I haven't seen that form. I did it in
the mid '90's, but I don't recall exactly what I did.
I recall drawing a map of some sort indicating
where the fence was to be located, and it was on a form that
somehow gave me the general bounds of a lot, but that is all I
really recall.
Q When you did that, did you indicate that the
alleyway that we are referring to today was part of your yard?
Would you identify that as your yard when you filled out the
application?
A I considered that my yard.
Q Okay.
A I described my request as to place a fence in
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there.
Q When you purchased this property from the
Bradigans, did you do any research on your own as far as the
origin of this alleyway and title to this alleyway?
A No independent research. We had counsel for the
settlement and they handled it.
Q And how did they indicate that that title was
currently invested in that particular alley?
A I don't recall the alley being a particular topic
of discussion.
Q Okay. So at that time did you through your
discussions with the Bradigans either expressly or implicitly,
were you under the impression that your yard went to the base
of the hill?
A That's correct. That's how the Bradigans
described it. They said that was their yard.
Q At any time at all, at the time all of this
transpired, Mr. Turri putting the car there, the wood, did you
do any further investigation on your own independently as an
attorney to figure out who owned this thing?
A I have to confess that my area of practice is
public utility law and not property. So no, I don't recall
doing any personal research.
Q
Okay.
MR. DUFFIE:
I have nothing further.
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MR. TURO: That's all I have, Judge.
2
THE COURT: Thank you.
3
MR. DUFFIE: I have one follow-up question I
4 forgot, Your Honor.
5
THE COURT: Go ahead.
6 BY MR. DUFFIE:
7
Q
The tree that fell over into the fence, you
8 indicated that you believe it is on Mr. Turri's property or
9 thereabouts. Do you have any way of showing us it is on his
10 property?
11
A
Here is my assumption, if he was contending that
12 my fence was on his property or something he had rights to,
13 then obviously a tree much closer to his house had to be.
I
14 couldn't square those two things.
15
Well, actually what we are contending is that the
16 alleyway is not, in fact, per se his property in fee. At this
17 point we are trying to establi.sh rights to portions that I am
1B
talking about, the 12-foot alley.
19
Q Do you have any -- can you in any way show us that
20
the tree was either in Mr. Turri's yard or in the alleyway as
21
it is laid out 12 foot from your back property line?
22
A No, I can't specify exactly where the bounds of
23
that alleyway are any better than anyone else without a survey
24
being done.
25
I think we have the curb cuts as a starting point
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1 where that alley goes, given the embankment has been added,
2 and it doesn't run a straight line. I think it is very
3 unclear. I was just trying to explain that it was my
4 assumption that if my fence was encroaching on an area he had
5 rights to, then certainly a tree --
6 Q I understand.
7 A -- implicitly had to be his responsibility as
8 well .
9 MR. DUFFIE: I understand. That is all we have.
10 THE COURT: Thank you.
11 THE WITNESS: Thank you.
12
13
14
15
16
17 opportunity to file a memo of law in response to the one
18 Mr. Duffie filed today.
19 MR. DUFFIE: I do not believe that is necessary,
20 and if you would allow us maybe just a few minutes, I think we
21 could get this wrapped up once and for all.
22 THE COURT: Okay.
23 MR. TURO: I guess I will go first. I just want
24 to point out a couple of things, Judge. Mr. Duffie, much to
25 his credit, has listed the requirement to establish an
MR. TURO: That is all we have.
THE COURT: Any rebuttal testimony?
r>1R. DUFFIE: We have nothing, Your Honor.
THE COURT: All right.
MR. TURO: Judge, I was going to ask for an
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1 easement by prescription. Pennsylvania Supreme Court maue
2 that very clear it requires an open, notorious, continuous,
3 uninterrupted, adverse and hostile use for 21 years.
4 I suggest that there is absolutely no testimony
5 that those elements have been established here by Mr. Turri.
6 I am struggling to understand not only what he believes his
7 right is, to a portion or this whole alley area that has been
8 described, but what type of relief, in fact, he legitimately
9 would hope to get under these circumstances.
10 I think that a couple of things become obvious
11 when you hear the testimony in this case, especially when you
12 look at it from the standpoint of Povilaitises, and why we
13 believe it is vexatious, and why you should consider affording
14 legal fees.
15 This matter started obviously without much
16 significant research as to the rights. And while I agree with
17 you that the mere changing of a legal course or theory is not
18 vexatious, it is interesting that this whole matter began by
19 nasty grams to the Povilaitises.
20 Instead of by having had neighborly discussions
21 about resolving this in a friendly manner, Mr. Turri continued
22 to basically push the envelope. I think the crown and glory
23 was this last spiteful dumping. We had just been out for a
24 walk-through, a lawsuit was pending, and it was an
25 in-your-face, I am putting the wood there no matter what you
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1 tell me.
2 I think it is unfortunate these people have been
3 required to put up a fence, which they did not plan to do
4 until these activities by Mr. Turri had begun. And now they
5 spent 3,000 bucks on a case. That is vexatious. I ask you to
6 find in favor of the Defendants on Plaintiff's complaint, and
7 find on our favor on new matter, and award at least $3,000.00
8 to povilaitises. Thank you.
9
THE COURT: You are welcome.
10
MR. DUFFIE: Your Honor, since I provided you with
11 a legal memorandum of our position, I will keep our position
12 brief.
13 Our position has changed over time but,
14 Your Honor, I think we should have to take notice that the
15 difficulty in the research that was involved in this
16 particular case. Trying to find out who owned this thing
17 originally, and where it came from was very difficult.
18 The Borough would not provide us with any
19 information other than sitting us in a room with a myriad of
20 volumes of old ordinances to find out if this was accepted,
21 which took us two and a half weeks to find out.
22 It was a long process, and my memorandum of law
23 and stipulations, I think, provide us with the answers that
24 finally have surfaced in this case factually regarding the
25 history of this matter.
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1 Now, our case is based on Mr. Turri's prescriptive
2 rights, and Mr. Turo has outlined those rights. But I think I
3 have outlined those in further detail in the memorandum of law
4 that might enlighten you as to our position.
5 You will see for example the continuity element of
6 that doesn't have to be as continuous literally, but has to
7 show design and intent of the user of that particular
8 property, and so on and so forth. And I think the facts as we
9 presented today, in fact, do support those elements for
10 prescriptive easement.
11 And we would ask the Court to find in our favor,
12 and allow Mr. Turri to continue using it in the same fashion
13 he was using it before the fence was erected.
14 It is a case that is unfortunate, and
15 unfortunately this has been going on for a long time. And
16 it's -- you know, I think there's been a lot of ill will on
17 both parties' part in this case.
18 I think that Mr. Turri is upset, you know,
19 obviously by the manner in which the fence was put up. He
20 wasn't aware of where it was going to be placed. He was
21 blocked from using the alley in the way that he had been using
22 it in the past.
23 I would just ask that you consider our legal
24 position in the memorandum of law and packets as set forth
25 today.
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1 THE COURT: I will carefully consider it.
2 From what I have heard, I don't think I will have
3 difficulty resolving this.
4 MR. TURO: Do you need the pictures? We didn't
5 move them into evidence.
6 THE COURT: Why don't you do that. I would like
7 to take a look at them.
8 MR. TURO: I would only ask that we would get them
9 back, especially the Bradigans' old photos. The Bradigans
10 will need them for any tax purposes.
11 It will be very important for any argument of
12 prescriptive easement. Nobody seems to be in a better
13 position than they are to know how their backyard was used.
14 THE COURT: Okay.
15 (Whereupon, court adjourned at 12:07 p.m.)
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v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVA~IA
: NO. 98-480
JOSEPH A. TURRI,
Plaintiff
JOHN F. POVILAITIS and
SUSAN T. POVILAITIS,
Defendants
: CIVIL ACTION - EJECTMENT
DEFENDANTS PRETRIAL MEMORANDUM
I. Basic Facts as to liability
When Defendants purchased their home in 1994 they were assured by the prior
owner that their use of their lot extended to a line in parallel with their neighbors across
an undedicated, never opened grassy area originally laid out as an alley. They decided
to place a fence in line with their neighbors, approach the Borough of Camp Hill, was
assured there was no problem and were given a building permit. There after the
neighbor to the rear, Joseph Turri, complained and this lawsuit began.
II. Basic Facts as to Damages
Defendants have suffered damages including legal fees and costs in defending
this action, which is without merit.
III. Principle Issues of Liability and Damages
Defendants contend Plaintiff has no standing to bring this matter, has no legal
right to the property in question and has not suffered damages as a result.
IV. Legal Issues
Plaintiff does not have standing to bring this action as the subdivision from which
his property came is a different subdivision from that of the Defendants and therefore he
can not claim right, title or interest in the un-opened alleyway. Furthermore Defendant's
have acquired title by adverse possession based on their usage of the property and that
of their predecessors in title, the Bradigans.
V. Witness
Defendants reserve the right to call witnesses identified in Plaintiffs Pretrial
Memo as well as Richard Placey, Esquire, a neighbor who has repeatedly provided
direction and advice to both Mr. Turri and the Defendant's concerning the Defendant's
right, title and interest in this alleyway.
VI. Exhibits
Defendants reserve the right to utilize any exhibits listed In Plaintiffs Pretrial
Memo plus aerial photographs of the area and other documents Identified throughout
the pleadings and in discovery.
VII. Status of Settlement Negotiations
Non-existent.
VII. Other
Defendants request the Court to view the premises.
0)&/0/
Date
Respectfully Submitted
TURO LAW OFFICES
~;ro k -
28 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Defendants
II. BASIC FACTS AS TO DAMAGES
The Plaintiff Is seeking equitable relief directing Defendants to remove the fence from the alleyway or
In the alternative, compensate the Plalnliff for the loss of use of the alleyway.
III. PRINCIPLE ISSUES OF LIABILITY AND DAMAGES
The principle issue will be whether, as Defendants contend, the Plaintiff has standing to maintain
said action.
IV. LEGAL ISSUES
The legal Issues In this matter will be whether Plaintiff has standing to maintain an action In
ejectment If the alleyway was laid out prior to ellher the Plaintiffs of Defendants' subdivision plan was
recorded. Defendant will also set forth a claim for adverse possession tacking the Defendants' usage of the
property onto the prior owners, the Bradlgans, use of the property.
V. WITNESSES
A. Plaintiff, Joseph A. Turri, Sr.:
B. Joseph Turri, Jr.
C. Thelma Sockman
gE8TIFICAIE OF SERVICE
':I"
AND NOW, thls...1Z. day of June, 2000, the undersigned does hereby certify that he did this date
serve a copy of the foregoing Pretrial Memorandum upon the other parties of record by causing same to be
deposited In the United States Mall, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as
follows:
Ron Turo, Esquire
28 South Pitt Street
Carlisle, PA 17013
,
EIDNER
By:
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I, .Johnson, I)uffie, Stewllrt & Weidner
By: Mark C. Dunie
J.D. No. 751)06
301 Markel Slreet
P. O. Box 1(1)
LCl11oyne. Pennsylvaniu 17043-0 I (1)
(717) 761-4540
^llorneys Ii.lr Plainti rr
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-480 CIVIL TERM
CIVIL ACTION - EJECTMENT
JOSEPH A TURRI,
v.
JOHN F. POVILAITIS and
SUSAN T. POVILAITIS,
husband and wife,
Defendant(s)
MEMORANDUM OF LAW
"Whenever any street shall have been laid out and shall not have been opened to or used by
the public for a period of twenty-one (21) years, such street shall not thereafter be opened without the
consent of at least fifty-one (51%) percent of the number of owners of the abutting real estate and without
the consent of the owners of at least fifty-one (51%) percent of the property abutting such street, based on a
front foot basis." 53 P.S. ~ 46724. "The act of recording a plan operates as an offer to dedicate without
regard to sale. . ." Reed v. Reese, 374 A.2d 665, 669 (1976). Landowners enjoy a private right to use the
alley (egress and ingress) as a result of the recorded subdivision plan despite the fact that the Borough
never accepted the dedicated alley as a public way. BieJs v. Vinnie, 507 A.2d 865, 352 Pa. Super. 246
(1986).
An alleyway on a recorded subdivision plan that may not in fact be open or that there has been no
acceptano9 by the Borough as a public road does not effect continuing private contractual rights of
subdivision landowners to use this alley. Drusedum v. Guernaccini, 380 A.2d 894, 251 Pa. Super. 504
(1977).
Where a street has been dedicated upon a subdivision plan, and has not been opened to public or
private use or accepted by the Borough within twenty-one (21) years, the public has lost all interest in the
street. The other owners of the lots on the plan adjoining the unopened street have an easement rlght-of-
1
way purposes over the entire proposed street thereby continuing In perpetuity those property owners rights
to utilize the easement. McLaughlin v. Cybulski, 159 A.2d 14, 192 Pa. Super. 7 (1960).
It Is controlling law In Pennsylvania that where the side of a street Is called for as a boundary in a
deed, the Grantee takes titie In fee to the center of It provided the Grantor had tltie to that extent and did not
expressly or by clear Implication reserve the same. Rahn v. Hess, 106 A.2d 461, 378 Pa. 264 (1954).
EASEMENT BY PRESCRIPTION
A prescriptive easement may be established provided the claimant show evidence of open.
notorious, continuous, uninterrupted, adverse and hostile use for twenty-one (21) years. Keiffer v. Jones,
467 Pa. 544, 359 A.2d 735 (1976). An easement by prescription can be established without the burden of
showing that there was exclusive possession, and whereas a claim for adverse possession might fall, the
facts may still create a prescriptive right, even in the absence of exclusive use or possession. Dunlap v.
Larken, 342 Super. Ct. 594, 493 A2d 750 (1985); Brouse v. Hauck, 330 Super. Ct. 58, 478 A2d 1348
(1984). Several parties can use and acquire rights of easement to the same land by prescription. Perey A.
Brown & Co. v. Raub. 357 Pa. 271, 54 A.2d 35 (1947). The use may also be participated In by the servient
owner. kI.
The element of use continuity Is one essential for the finding of prescriptive right. A party need not
show constant use rather a seWed course of conduct Indicating an attitude of mind on the part of the user
that the use Is the exercise of a property right. Keefer, 359 A.2d at 737 citing the Restatement of Property.
Chapter 38, ~ 459(b). In addition to requirement of continuity of use, the claimant must show by clear and
convincing evidence that the use was uninterrupted. kI. at 738. "To be Interrupted, an obstruction must
interrupt the actual use and the obstruction must be accompanied by an Intent to cause an interruption In
use." kI. Margoline v. Holefelder, 420 Pa. 544, 218 A.2d 227 (1966). The Restatement goes on to say that
an adverse use is uninterrupted when the servient owner does not pursue legal proceedings or cause
cessation of the use without bringing legal action. Restatement of Property. Chaoter 38. ~ 459(b). In order
to interrupt the use, the servient owner must intend to cause and actually cause cassation of use when It Is
the success of this Intended cessation that determines whether or not the use has been interrupted. kI.
When analyzing the continuity of use, consideration must be taken of the nature of easement asserted and
the location of the land involved. Keefer. 359 A.2d at 737. Therefore in order to satisfy the continuity
requirement in a rural area, less use would be required than in an urban area. kI.
2
.......
Another requirement In maintaining a claim for prescriptive easement Is that the use be open and
notorious. k:I. 736. This particular requirement protects the owner of the servient estate and is satisfied If
the servient owner had actual knowledge of the use or had a reasonable opportunity to learn of the
existence and nature of the use. Restatement of Property. Chapter 38. ~ 458(dl comment (hl. A reasonable
opportunity as defined by the Restatement as a use that Is apparent upon ordinary Inspection or common
knowledge among the community so that the servient owner could learn of use by availing himself to such
knowledge. k:I. Use Is not open and notorious If knowledge and character of the use Is Intentionally withheld
or concealed from the servient owner. k:I. at Comment (k).
In order to obtain rights through an easement by prescription, the use must be adverse as the rights
acquired through adverse use must be Inconsistent with pre-existing rights on the land being used.
Restatement of Law. Property, 9 458, Comment (a). It Is not necessary that the use be hostile to be
adverse. "It Is not necessary that it be made either In the belief or under a claim that It Is legally justified. It
Is, however, necessary that the one making It shall not recognize in those as against whom It Is claimed to
be adverse, an authority either to prevent or to permit Its continuance. It Is the non-recognition of such
authority at the time the use Is made which determines whether it Is adverse. It must be made In non-
recognition of such authority existing in the person against whom the use Is claimed to be adverse." !he
Restatement of Law. Property, 9458, Comment (c).
In a case hinging on the continuity of use, the Superior Court found in Burkett v. Smyder that for
sixteen years use of a roadway across the Defendant's land for approximately 400' traveled only several
times each year to access the rear of Plaintiffs property and an additional five years of use at a frequency of
twice a year for hiking purposes was sufficient to establish continuity of use due to the fact that the evidence
illustrated a settled course of conduct indicating attitude of mind on the part of the Plaintiffs that the use Is
the existence of a property right. Burkett v. Smyder, 369 Pa. Super. 519, 535 A.2d 671 (1988).
A prescriptive easement must be narrowly limited to the extent of use during the period of
prescription. Hash v. Sofinowski, 337 Pa. Super. 451, 487 A.2d 32 (1985). It stands to reason that the
scope of a prescriptive easement Is a function of the continued, adverse use by which it was generated and
Is thus limited to that of the prescriptive period. I:iasb, 487 A.2d at 34. 5 Restatement of Property 2992,
9477 (1944). Another factor In ascertaining the extent and scope of an easement created by prescription Is
determining whether a particular use is permissible In an easement created by prescription. A comparison
3
must be made between that use and the use by which the easement was created with respect to (a) their
physical character; (b) their purpose; (c) the relative burden caused by them upon the servient tenement. .5
Restatement of Property 2994, ~ 478.
Respectfully submitted,
JOHNSON, DUFFIE, STEWART
By:
DATED:
1/23
,
M k C. Duffie
A torney 1.0. No.7
301 Market Street
P. O. Box 109
Lemoyne, PA 17 3-0109
(717) 761-4540
Attorneys for Plaintiffs
,2001
:144596
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Johnson, Duffie, Stewart & Weidner
By: Mark C. Duflie
J.D. No. 75906
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
Altorneys for Plainti ff
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-480 CIVIL TERM
CIVIL ACTION - EJECTMENT
JOSEPH A. TURRI,
v.
JOHN F. POVILAITIS and
SUSAN T. POVILAITIS,
husband and wife,
Defendants
STIPULATION OF FACT
AND NOW, comes the Plaintiff, JOSEPH A. TURRI, by and through his attorneys, Johnson, Duffie,
Stewart & Weidner, and the Defendants, JOHN F. POVILAITIS and SUSAN T. POVILAITIS, by and through
their attorney. Ron Turo, Esquire, to stipulate to certain facts in the aforemenlloned matter as follows:
1. The Plaintiff is an adult individual residing at 201 Runson Road, Camp Hill, Cumberland
County, Pennsylvania 17011. Plaintiff and Corethia M. Turri, his ex-wife, acquired this residence by
Deed dated June 14, 1957 and recorded in the Office of the Recorder of Deeds in and for
Cumberland County on June 18, 1957, in Deed Book W, Volume 17, Page 264. Corethia M. Turri
conveyed her interest in the property to Plaintiff by Deed dated August 6, 1973, and recorded on
August 9, 1973, in the Office of the Recorder of Deeds in and for Cumberland County in Deed Book
H, Volume 25, Page 65. which Is particularly bounded and described in a true and correct copy of
said Deed which is attached hereto and incorporated herein as Exhibit "A".
2. The Defendants are adult individuals residing at 200 N. 33rd Street, Camp Hill, Cumberland
County, Pennsylvania, 17011. The Defendants acquired title to said property by Deed dated July 6,
1994, and recorded in the Recorder of Deeds Office in and for Cumberland County in Deed Book
108, Page 326, which is more particularly bound and described in a true and correct copy of the
Deed which is attached hereto and incorporated herein as Exhibit "B".
. EXHIBIT
03'23-0,1 LILT
3. Paul A. Bradlgan and Elizabeth K. Bradlgan, husband and wife, were the predecessors in
interest to 200 N. 33'd Street. They conveyed said property to the Defendants on July 6, 1994, as
described In Paragraph 2. Paul A. Bradigan and Elizabeth K. Bradlgan, acquired title to 200 N. 33m
Street, from Walter E. Knippel and Corinne N. Knippel, by Deed dated April 5, 1971, and recorded in
the Office of the Recorder of Deeds in and for Cumberland County In Deed Book 24, Volume A,
Page 436. A true and correct copy of the said Deed Is attached hereto and incorporated herein as
Exhibit "C".
4. The Defendant's property was originally subdivided by Plan of Lots of Belvoir, recorded in
Plan Book 1, Page 16, and dated .~\AH":;l.1,,, 19.0.~. A true and correct copy of said Plan is
attached hereto and Incorporated herein as Exhibit "D".
5. On the Plan of Lots of Belvoir, the Defendants' property is identified as Lots 134, 135, 136,
137, 138 and the southern 5 feet of Lot #139.
6. The Defendants' property was resubdivided on a Plan of Resubdivislon of Lots Numbers 134
through 150 and 15 feet of Lot #151, dated '~/,:,.~"" 19.'t... and recorded in Plan Book 12, Page
28, in the Office of the Recorder of Deeds in and for Cumberland County. The Defendants' lot is
identified as #136A on said Plan of Resubdivision. A true and correct copy of said Plan is attached
hereto and incorporated herein as Exhibit "E".
7. The Defendants' property is also the subject of a Plan of Property for Paul A. and Elizabeth K.
Bradigan dated April 21, 1971. Said Plan is unrecorded and is a result of a survey performed by
Ronald S. Raffensperger, P.E. A true and correct copy of said Plan of Property of Paul A. and
Elizabeth K. Bradigan is attached hereto and incorporated herein as Exhibit "F ".
8. Plaintiffs property was originally subdivided as Lot #53 on a general Plan of Hollywood
Development. Said Plan was recorded in the Office of the Recorder of Deeds in and for Cumberland
County, Commonwealth of Pennsylvania, on May 13. 1955, in Plan Book 7, Page 21. A true and
correct copy of said Plan is attached hereto and incorporated herein as Exhibit "G".
9. Both the Plaintiffs and Defendants' properties abut what is Identified as a 12 foot alley at the
rear of each of their respective properties. Logan Street borders each of the properties to the south.
Runson Circle abuts the Plalnllffs property to the west and North 33'd Street abuts Defendant's
property to the east.
10. Tille searches have revealed that the lands Identified on the Plan of Belvolr and the lands
Identified on the Plan of Hollywood Development do not have a common grantor, or if In fact there
was a common grantor, It predates the records of Cumberland County.
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11. The 12 foot alley laid out in the Plan of Belvolr and Identified as an exlsllng 12 foot alley on
the Plan of Hollywood Developmenllles enllrely within the plan of Belvolr.
12. The Borough of Camp Hill has Identified the alley at Issue on Its borough street map dated
1978. A true and correct copy of said street map Is allached hereto and Incorporated herein as
Exhibit "H".
,
13. The Borough of Camp Hill has Identified the alley on its street and zoning map which serves
as its most recent zoning map dated October 2, 1956. A true and correct copy of said street and
zoning map is attached hereto and Incorporated herein as Exhibit "J".
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: 139289
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Made ,the ~~ . 'day 01 ~~~ ,-In'thayear
Nineteen hundred and seventy-thr~~
~~~tti'l CORETHIA M. TURRI,lof Camp Hill, Cumberland County,
Pennsylvania, and formerly of Harrisburg, Dauphin County,
Pemsylvania, .
(hereblalter called the Ora7.tor ), 01 tI.e one part, imd
'JOSEPH A. TURRI, .her husband, of the same place,
(herelnalter called the Gra7.tee ),01 the other part:
, ~UutSStt~ ' That the sold Grantor
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has IIranted, barllalned, sold, aliened,
e7lle~rred, released, oonveyed and oonftrmed, and by t7.ese presents. does IIrant,
barl!aln, sell, allen, en/coD', release, oonvey and oonflrm unto the sald Grantee,
his heirs and .!tsslllns,
ALL TIW CERTAIN parcel of land situate in the Borough of Camp Rill;
Co\mty of Cumberland and State of Pennsylvania, more particularly
bounded and described as follows, to wit:
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BEGINNING at a point at the northeasterly corner of the intersectlon
of Runson Road and Logan Street; thence along the easterly side of
Runs on' Road, north twelve (12) degrees twenty-eight (28) minutes west
seventy-five (75) feet to a point at the dividing line between Lots' .
Nos. 53 and 54, on the hereinafter mentioned Plan of Lots; thence along ;
the last said dividing line, north seventy-seven (77) degreljls thirty-two i
(32) minutes east one hundred three and twenty-four one-hundredths (103.2{1)
feet to a point; thence south twelve (12) degrees twenty;eight (28)' I
Ct minutes east one hundred one and siXteen one-hundredths (101.16) feet:
to.a point at the northerly side of Logan Street; and thence along the
northerly side of said Logan Street, north eighty-eight (88) degrees
twenty-five (25) minutes west one hundred six and forty-nine one- '
hundredths (106.49) feet to a point, the PLACE OF BEGINNING. (All..,
be~ings are measured from the true meridian.)
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BEING Lar No. 53 on a Revised Plan of Part :ofHollywood Development;~':'.-::::..":~~;:~,,,,7'::;-:':":'::':" -..::::.;,.,
which plan is recorded in the CUmberland Co~ty R~.c::order ~f., D.~e~.9!!.~c_ll: "'.::.:::- ,,':,L:..:'..:.,,-': "" ~,~-~
in Plan Book 8, Page 14. , . '.,. .."" - .-...,----.-:..:.-.:.- ..:----' ' ,,,, "...".-----
BEIN~ the same premises which Hollywood Deve~~p~~n:~o.' I~C~~ ~a;:p~:~~~~~:~" ~ '.:~HI.~}::~:~~j <~:.
vania corporation, by. its Deed dated the 14t;h day of June;' '1957" 'and .-~"--- ',: ;',",'". ~;::::'::t(1:!:~' ,,:
rec~rded on J~e 18, 1957, in Deed Book WI' Vol~e .17, ,at Page 264,-.in ",' , . - ' . /~,n ,\:'::~:<i~~\i .' .::;:
the' office of the Recorder of Deeds of Cumberland County, Pennsylvania, ": ' , ,i.:, '.',' .,n'" -. :1;'+"J
granted and conveyed unto the said Grantor and the' said Grantee, .ha.v~g ;:i':~,: ''':'',C;. ~..;:::'~:',': ,,-, '"
thereon erected a dwelling house kn ' as 201 Runson Road,' Camp Hill, '"':'',:;''' .:.'., ',,'. ,
f '''_~~.''_'_' ..",", .~."-' ,,_'.M_~'.~.''''''''
f,
t~~.Gr4ntee does hereby expressly assume the existing mortgage, if any.
IIAVING TIIEREON ERECTED a dwelling house known all and numbered 201
Runaon Road, Camp lIi11, Pennay1vania, 17011.
i.i"" .~.9kA:
. Cumbo Co., Po. '
t." .ull.h'. T""I'" T.. ,-
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0.1. ;Q...t.'..r. AMt....fJ./...
. 4:.lj,.J.P .J:t...,.;t . :
c""'~. Ce. Ohl. c:.1. Atl. A" . <I .
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9.W
Sc~umb. Co.. Pa.
t" l..IIII." T"~I"':..'~ .
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! ~".9tt~" wlth ~Z and alntuZar tllO Improvem.nt., u:all',
I' Itre.ts, 011.11', pa..a:!.., toot.r., wat.r-cour..., rZ:!ht., ZlbertZ6I, privllet.., '..r.ulta-
I .
'I" m.Bts and appurterw.noe. whatsoever ther.unto belontlnt, or III allU wu. ..'._ .,..,......_...._,_,"'" .,. ::':'i
'I.... :::.:;::~::::a:.:;:e:~::::::::;;::::::' :Z:;:':'::U;:,::~:~::~:.::;;;:~:=.~~: ,~.."."..,~:~~:.=:.=:;:;. .~,~~~~:::::-~~:::~..
! ..'. th;~aid Gr~nto~' ":',-i;" 'C/~~~~ji~it~; or ~th~~. h~~~o~ver,~/. In. and ;~ th~ e~.~~ ~:;~.: ::7':;:'~:::" :::~':-~:;:~:;3?-:~:.::~:'::'.<:': : :':~::.
I ani.~~:,y p~;t tl;ere~/..:':~~:" ':. . .. '.: . .' .... ", ,,-...,:.' .'~~:;_"~~:,_.._ .J.. .:..:_.. ""-"--='.'
il '.. ,," :.:.'....:. :...:.':. . BOO1~" 25fACE 646 . ,:_::,;,:.'..:, ...,", J... ..:,,:..... _. i:." .
11./.::. ,~',:~:'.;:.:..J.,. : :~:..,~~.:::.:.>,:::::':c:... ' , : ',.. ,..~':::~;~:;;;?~i;}j:~~Ii;~~~:j~i~}!:~::;',~;,~~:i1f
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dwallins housa
ond pr.ml.., h.r.by Ira~t.d, or m.n!/01\ed and Int.nel.d
appurtlllOne.., unto th.' ,old Grant.., his hairs
and lor the only prop.r III. alld bellool 01 ti.. ..Id Granto. ,
her.dllam.nt.
,a to be, toltl. tho
alld .A..ltn" to
his heirs
and .A"IIn, lor.ver, .
:Anb the eald Grantor , lor herself, har Heir;, &e."tor. and
.Admlnlltrator, do es by th..e prCltlltl..avena.nt, trant alld atree, to and will.
the .ald Grante. '. ~is heirs and .1"ltna, tllat she the ..Id
Grantor her "Helr., 011 and .Intular the I.eredltament. and pre".I...
herein d.,.rlbed and tranted, or mentlon.d and Intended '0 10 be, tolt1. tl.. app"r-
tenanoe.,
her,
unto the ,old Grant.. ,
the ,old Grantor , and
his heirs
and .1"IIn" ataln,t
. her heir" and ataln,t all and every
other Per,on and Per,on, whomloever lawlully clalmlnl ar to claim the ,ame,
or any part thereol,
Shall and Will
W.1RR.4HT and lorever DEFEND,
~U ~lli~Ul!.!5!!i ~Hlll!rl!ot, .ald Granlor has hereunto .et her Iland
and Ital the' day and year /lr,t above written,
$isn.b, ~."I.b "nb ~.li\1n.b
:,fn t~. '.....n.. or
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ClIommonlU.,,1t~ or '.nn.\llll"ui" } !!is. I
ClIount\! or Dauphin . . . i
Onllill,lhe ell .'ro/ f1u.t,,,,r, lli3,i,e/;reme, a Notary' PUblic, I
. with an office in the af~aid Commonwealth and County,.. . I
,he uMml/PIe. .flie.r, perlona//r.ppe.re. CORETHIA M. TURRI; ~_,,?<.,.... '
... .....,... :I /'
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known 10 me (or ,olll/.ctor/lr prove.) 10 6e,he pmo. "ho,. name is ,ub,erI61~'Th"r-.: ';.M,lItl.':!; ~
. ~ 1").", ~\'q'hr7"".V' -; :
Imlrumenl, and .cknOlOle.ge. lhol she ""..uled II~ IOmefor ,h. purpose ,'her;IA iMIaln~~.. '~"~":
IN WITNESS WHEREOF;I have herdo 1<1 mr hand and official ~:l~~~>:l.q,;\a.L..~
, . tf.d 0'001"'" :\tJ'~::::::'tr
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. . . .. 0 8.ry U a. t, l;tti!;I';~.I:a'\''''o\''l' ....
: ..:.,>..MYc::~i.s!'.ionExpires:"'~1.11lyiWdiJc'.: .:.::~ .
.......,.h...~_._._.'...._......., . . ,. f1171ioo01a_....,....."amto..f1J-.
<:if '.iJO' ~_ ill' .' . ' ,. . .... Htnhl.... Po. '. iii""" ce..~ .'
rfJ c:-,tre-pu "'fl!rtuU that the pro.lle addre.. 01 the traritcc . herein" I,' .' . . . . '.."
201 Runson. Road, Camp Hi;t.1, Pennsylvania 17011 ... . :..,' " ,_."
.. .011 25!ii 647.. ~;'4~#f:
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\'~ 'lI'I'ti\1.\oP.i;..,j'.rI'I,..I.!II~~'1 r.,,", Art .,.",. 1I1",I,lIhHI,
/lmmM~ A'i:inn'u~'
GUI,IBEnLAlID COUIIT~fJ '
9:S7 1 tt
'9'1 JUl. 12 RI'1 9 f,,}
MADE TIlE .f} 6 Ait d.y 0' Il H j.AA -
0' our lord on. thoutand nln. hundred " J nety- tou~~.~<::1'"
-rax Ptlrt!t'/ Jl:; ""1'''} C>II
lleeb/"d '~m:/- lP
'n 1111 year
BETWEEN
PAUL A. BRADIGAN and ELIZABETIl K. BRADIGAN, hlo wHe, or
Camp Hill, Cumberland County, Pennoylvanla,
.nd
JOHN F. POVILAITI9 or Cumberland County, Pennoylvenla and
TOHALIS or Cumberland County, Penneylvanla, Joint tenante
rights ot survivorship and not tenants 1n common,
WITNESSETH, thaI In conlld.,ollon of
One Hundred Eighty-eight Thousand and 00/100
In hand po,d, Ih. recelp' wherlof II hereby adnowledg.d, 'h. .ald oronlor 8 do
convlY 10 Ih, lold oronlee 8 ,
Oranlor B,
SUSAN M.
wi th
Gron'ee B.
OollOrl,
h.,.by grant and
ALL that aertaln traot or lot or land eltuate In the
Boroush ot Camp Hill, Cumberland County, Pennsylvania, morQ
partioularly bounded and described 48 tallows, to,wit:
BEGINNING at a point at the Intereeotlon or the
northern elde or Logan Street with the western side or North
33rd Streetl thenae along the northern side or Logan Street,
South 77 degroee 32 minutes West, a"dietanae of 125 teet to
a point on the eaRtern side ot a 12 teet wide alley; thenoe
elong the eastern elde or said aliey North 12 degreee ZB
minutes Weet, a dletanoe or 105 (eet to a point at the
dividing ilne between Lote Noe, 136-A and 137-A on the plan
at lots reterred to hereinatter; then~e'alon8 8aid last
mentioned dividing line North 77 degred, 3Z minutes Eest, a
distanoe ot 125 teet to d point on the western Bide ot North
33rd Streetl and thenae along the western elde or North 33rd
Street South lZ degreee ZB minutes Eeet, a dlstanoe or 105
reet to a point, the plaae of BEGINNING.
BEING Lot NO. l36-A on a plan or re-subdlvlolon or Lats-
Noe. 134 through 150 and 15 roet or Lot No. 151, reaorded:in
Plan Bark 12, page 28, Cumberland County Reoords. .' ~.'
BEING at the same time Lots No.. 134, 135, 136, 137:',
138 and the 80uthern 5 teet ot Lot No. 139 on a plan ot loto
at Belvoir, reoorded in Plan Book 1, page 16, Cumberland
County Reoords. ...
BEING the Dame premlees'whloh Walter E, Knippel and
Corinne N. Knippel, hie wite, by their Deed, dated April 5,
1971 and reoorded in the Cumberland County Recorder ot Deeds
Oerioe in Deed Book 2A-A, page A36, granted and conveyed
unto Paul A. Bradigan and Elizabeth K. Bradigan, his wife,
Grantors herein.
BEING known and numbered as 200 North 33rd Street, Camp
Hili, Pennsylvania 17011.
"
AND lhe laId granlardlereby COvenan' and aoree Ihallhey and each of lhem will worron'
specially ,h. properly liellby convoyed.
BOOK 10B PACE 326
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EXHIBIT
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MADE THE "
of out lord on. thou. and nln, hundred
/,,~,
day of {...l. '"
am s8venty-o (1971),
In thl y.ar
BETWEEN
WALTEIl E. K1fIPl'I::L and CORNn: N. KNIPPEL, his wita, ~r ClIJl\p H111,
Cumberlsnd County, PolUUl)'lvan1a,
Orant""D I
.nd
PAUL A. B1lADIDAN om ELIZABETH K. B1lADIOAN, his wHo, or Camp Hill,
Cumberland County, Pennsyl~anie, .-..-.-------....-..--
O,anl.. a .
WITNESSETH, th.t In conllder.llo. 01
-O/ll(i
In hand paid, th. rec.ipt wher.of I, her.by achowl.dg.d, Ihe laId g,onlor S do
convey to Ihe laid oranl.. 8, their heirs nm ssolens.
(/' /. CZc,) 00110",
hereby gron' and
ALL that cortain trsct or lot ot land situate in the Borough or Comp Hill,
CUl:b<rland County, PeMsylvonia, more particularl,y bounded and described es
tallows, to witl '
Bl:XlINNDD et a point at tho intersection or the northern side ot Locon Street
with the western sida ot North ))rd Street; thenco olong tha northern side ot Logon
Stroet, South 77 degrees )2 minutes ~est, a diataoce ot 125 toot to a point on the
oastern side ot a 12 toot wide alloy; thence along the eaatern side ot soid alley
North 12 degrees 28 minutes Weat, 0 distance ot 105 teot to 0 point at the dividing
line between Lote Nos. l)6-A and 1)7-A on tho plan ot lots reterred to heroinotterl
thence along said lust mentioned dividinc lina North 77 degreos )2 minulos Kast,
o distance ot 125, feat to a point on tho weslern side ot North ))rd Street; and thence
alone the western side ot llorth )),'': Street South 12 degrees 26 minutes K.sl, 0
distance ot 105 teet to 0 point, the plece at m:oDlJlL'lJ.
SKIllG Lot No. l)6-A on a plan or re-subdivision or Lot. Nos. l)b through 150 and
15 teet of Lot No. 151, recorded in Plon Book 12, page 26,Cw.berland County Records.
8&11:0 at the some tillle Lot. Nos. l)b, US, 1)6, 1)7, 1)6 and the southern
5 teet ot Lot No. 1)9 on a plan ot lots ot Belvoir, recorded in Plan Book 1, page
16, Cl:1Iberland County records. '
SKIll) the oome premises which Jiul\es E. Grandon ond Virginia Grandon, his wit.,
lU their Deed dated April 22, 1970 and' recorded in the Cumberlond Caunty Racordar
ot Deeds ortico in Deed Book 2).P, pag. bb6, granted and conveyed unto Woller E.
Knippel, and Corinne N. Knippel, his wUe, Grantoro herein.
This conveyance is frOll\ parents to doughter om .on-in-llll/, end
io theretore exempt from all roalty transter taxes.
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AND Ihe said oranlorsh.fltby covlnant and aore. lhat Ihey and <<,aeh of them will warrant
Oenernlly the prope'ly hereby convey.d. U
BOOKA 24PACE 436
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IN WITNESS WHEREOf. loid uronla, 0 ha Yu
lh, day and y.or tiUI cabo.... WIlli'".
h.,.un'o "I
hand 0 and 11:01 D
Lhuir
)V~((, ( 1/ , ~
0I1"'~' '"h~ ".. U,Ul'III. j'.......'lIiil'1.O:r..E';..liiii11,/Jt..:......-;-.............;...... ..~\"
~~ I"~"") , ({:.;..\.!.!.~."!~.+.....>.l.:.2.r;~.t.~vt.t:S~.t....... ~
, C'h) ~. COriMo N. Knippol ~
. 1j91V(- , . .... ..........f - 1),___..-.--.-..-....-..-.......-....... ~
................-....-...........-.-.--..-.-.-.- ----_._._._._._.........._._....~
51010 01 fl::NNSYL'/ANIA
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197/ ' bo'o,o mo, .
Cou.ly 0' , Cw.aI:J<<.AIID _ TI~
On this. the ..!;J
doy 01
the undeuionlld oRice" peflonally appeared
WalLer 1:;, Knippel ond Corinna N. Knippol, hi. \lSte, ...l..,..:::..:.~'.:'...,
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.nown to me (or ,alhfaclorily proven I 10 b. tho penon 8 whose nom. 8 arc t;:'....I~~~.~d,'!..~,t~~,~i1h., 'I,
in inllrumenl, and odnowledged rhat they euc:uted sam. (or 'h. purpo.t"<9'!J!!.n.conlol.1:'.~<. .~ ::
IN WITNES:::::OBF, I'ehea':: '01 my ho.d '5/0~~'1 ...~ ~ ~~''':u,::~;:/:.>,:\~~,):;.\
~. . no, _...c:;.'_,~."M~I.,_,..~~':l il~'''''''' U:AlI .
NOT A. Y P U HI r ' ',"'/ ", ._~.; ", ''1 "
3901 M rt. 5 IH ' I "... "
CAMOp ~Il~: p:',"./i~r/~' ---'-'--_...,-"".-'..'Ti;i~:~{'o.~~;;.i\'~._,.
'My Com"I"'__ r ,,' .ll...,;;IG. I~,': '
I do q;~;~by urlifr that tho precila ,elide",. and complelf' p~1 oflica addleu of
Iho wilhln n.med gran'.. II '2. 0 0 N "J :!. cJ S To, '-'-0.'''''1 ~,<"d '. Uc. " 7 tJ "
~ ~ 1971 -,1f~,~M~'f:X.".....,",..,--
AlIornoy lor ~(;i..'1;:iI.i.-j;;;:;;rJ,,1
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ReGISTERED BY THE
~GH OF CAMP HILL'
(' l-11.LZ./1 7/
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COMMONWEALTH OF PENNSVlVANIA }
COU.,y~~_,U-.J....,L."'..6...t,,;..,,~,:e..L.,~ ...
RECOR~ED on Ihll _ _"..,,,___.2:.L4,, doy of -~_L,._"
A; D. 19'H~_'r In the RICord,,', office of Ih. told CO\lnly, In Deed Book,//
Vol, -l6-f--pog. 1/ ..:J6.
Giyon ~ndor my hond ..d Ihe . 0' rho said Olli~") dolo .boyo wrll!on.,
-,~. "'_'_-~-{.';:;"'."'1. ~ ...... RICard.r.
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6oCK/l2'liA~E 437
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ILLE IBLE.
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