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and continnollsly since 1969 up to nl'OlInd 11)CJ7 whell this dispute crystnlized, exclusively
maintnined the trinngle in question ns shown liS Iho area A-B-O on Exhibit 8-2, Randy LlIndnll
testified tlmt his mother and stepthther, the nil neys, as well as hinlsult; mowed the grass on this
triangle nnd trimmed the hedgt\ boginnin!! when they pllrchnsed the Sicchitano property in 1969,
He stated Ihnt he mowed Ii'om point 0 as shown on Exhibit S.2 tll the phone pole shownns point
A on Exhibil S-2 and liS also shown on Exhibit S..3, the survey, as 1'1'&1. 22758, (NT 105) In
1969 or 1970, the Birnt'Ys planted bushes on the A-G line. (N.T. pIOS) They lived in the
property from J 969 to 1978, and Randy helped to maintain the lawn during thnt time, (NT p
107-108) Mr Landau was clear on the point that he mowed Hum point 0 to the telephone pole
and trimmed around the telephone pole (point A on Exhibit S-2) (N, T. 109-110) He nnd his
stepHllher nlso trimmed both sides of the hedge between the properties for the time they owned
the property, (N T 110) The renter who occupied what is currently the Hotfman property, Mr.
Uhl, mowed up to the A-G line, (N.T 112)
The Garcias purchased the Sicchitano house in 1978, They lived there two years and then
rented the property to another. (N T 20) Mrs, Garcia confirmed that the hedge installed by the
prior owners, the Birneys, wns there when the Garcias moved into the property, (NT 22) She
remembers a split rail fence from the back of the hedge to the rear of the property line (point G on
Exhibit S-2) (NT 22) There wns a break in the split l'lIil fence from the fi'ont of the hedge to the
street (NT 22,23) In 1979, the Garcias put the dogwood in at the front of the property and
put an "L" shaped split rail fence nround two sides of it (NT. 24) The Garcins cut the grass
along 1:10 same line thnt the Birneys had maintained. They also sprayed this nrea nnd trimmed the
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Tho S\cchitano chain of tltlo gOlllg bllck to the \ 969 rccordc(\ dcod from tho Aliens to tho
Bimcys roflocts tho following boginnllll\ pOlllt.
BEGINNING at a point 011 tho Northerly line of
Sycllmore Circle, said point being located 9068 feot
In a Westerly directioll along said linc 1'1'01\\ the
Westerly lin~ ofConodogulnct Drive
(Defend\\nt's Exhibit 2)
The deed 1'1'01\\ the Birneys to the GlIrcillS, the (Iced from the GlIrcias to Moyerman, and
the deed from Moyern1l\n to Sicchitano all reflect this same beginning point Looking at
Defendant's Exhibit J, the beginning point, 90,68 feet from the westerly line ofConodoguinet
Drive, places that point at the easterly point of the triangle in dispute This is agllin clearly shown
on Defendant's Exhibit 4, this point being point" A" on that survey plan of Lot I 5, the HotTman
\0< Th' ",,,,\, ,h" h.. h'" ",,'o,,'ood hy p\""" ff "d he< p"d"""''' ,,, ,'U, " ,\mwn hy Ut<
coordinates A-B-G (Defendant's Exhibit 4)
John and Doris Allen obtained title to both lots 15 and 16 in November of 1967,
(Defendants' Exhibits I and 2) The deed to the Birneys from the Mens for lot 16, (the
""hi'"" Ion wh\,,,o,,,,d,d ,h, ",.",,'oB '0'" "re' 'orth "'''',. w.. ,,,,,",,,, "" ""." ".
I 969 The deed from the Aliens to Kclly Dri-Wall Corporation for lot 15, the Hoffman lot. was
recorded April 27, 1972 (Defendants' Exhibits land 2)
I. DID THE MAINTENANCE OF THE TRIANGLE IN QUESTION BY PLAINTIFF AND
HER PREDECESSORS IN TITLE ENTITLE PLAIl~TIFF TO LEGAL OWNERSHIP OF
ISSUES
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THAT TRIANGLE BY ADVERSE POSSESSION?
Answer: Suggested in the atlinlllltive,
Discussion:
It hils been described on the record how GlIyle Sicchitano and her predecessors in title
maintained the lawn and shrubbery in the triclllgle in question since 1969, The line marking where
the owners of lot 16 stopped mowing, all the way back to 1969 was clear from the testimony.
Randy Landau testified that he and his stepfather religiously mowed from the telephone pole back
to the rear corner of the property, and installed the bushes on what they thought was the property
line, Their successors, the Garcias, put in the dogwood with the split rail fence next to the phone
pole and mowed again, to the rear corner of lot 16, also maintaining the bed around the dogwood
and the hedge between the properties Karen Gopear testified that this same maintenance was
continued until the HofTmans put a truck in the yard and a rope along the bOllndary as called for in
the subdivision plan, The lawn maintenance of the triangle in question was continuous, exclusive,
and open tI'om 1969 until 1997 when the dispute flowered.
Plaintiff is entitled to claim the triangle in question as part of her property because she has
met the requirements for claiming title by adverse possession of this land. Those requirements are
as follows:
I, Adverse possessors must have actual possession of the disputed
land for more than 21 years;
2. Possession of the disputed land mllst be visible and notorious;
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3. Possesslonlllust be orthe tYPl' tllll'! would chllracterize an
owners use so llS to constitute distinct and exclusive possession;
4, Possession was hostile, in that record ownenl had not given
adverse possessors permission to use disputed land.
5. Possession must be continuous nnd uninterrupted for the full
stntutory period, 21 yeMs, (Brennan v, Manche~ter Crossings. Inc.
708 A 2d 815 (Pn Super 1998) at pages 815,816,818,
The facts in the Brennnn case permitting Appellants in that case to clnim title to land by
ndverse possession were that Appellants, shortly after purchasing the residence, began to mow the
grass over the disputed area of real estate adjoining their real estate. The B/yants, the appellees,
were familiar with appeilant mowing the grass and perhaps trimming of some bushes and trees and
hedges, raking leaves in the autumn and perhaps parking cars on the disputed property. Appellees
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did not object to appellant mowing the grass and his actions during the period would have given
the impression to appellants that he consented to their mowing the grass and other minor
activities, Appellants never fenced in nor secured in any way the perimeter of the claimed tract of
land, nor changed the existing use of the prope/1y by planting trees or flowers or building any
structures, except for some minor berm improvements. Appellants did this for over 21 years,
Given these facts, the Superior Court was convinced that appellants proved that they had actual,
continuous, exclusive, visible, notorious, distinct and hostile possession of the land for 21 years
Brenna/1 at 820, 821.
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The facts in this case are nearly identical. Gayle Sicchitano and her predecessors in title all
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mowed the lawn and trimmed the hedges of the area in question for lit lellst 21 years. Tho
neighbors know Ilbout it, Ilcknowledgcd it, Ilnd did not give explicit permission to do it beclluse 1111
pllrlies assumed the trianglc belonged to lot 16, the Sicchitllno tract. All the tests of Brennlln have
been met to entitle plaintiff to legal ownership of the triangle by adverse possession.
II CAN GA YLE SICCI-IIT ANO TACK THE POSSESSION OF HER PREDECESSORS IN
TITLE TO HER OWN IN ORDER TO ESTABLISH OWNERSHIP BY ADVERSE
POSSESSION?
Answer suggested in the affinnlltive.
Discussion:
The facts demonstrate that plaintiff and her predecessors in title back to the Bil'lley.~ in
1969 held actual, continuous, exclusive, visible, notorious, distinct and hostile. possession of the
land in question for over 21 years Plaintiff owned lot 16 since 1995 and had maintained the
triangle in question as her own since that time, The periods of possession of prior owners may be
added on to the period of possession of the present owner in certain circumstances through
"tacking," Baylor v, Soska 540 Pac 435,658 A2d 743 (1995) The Baylor case cites
Castronuovo V. Sordoni 357 Pa,Super 187, 515 A2d 927 (1986) for the proposition that the
possession of successive occupants may be tacked, but only where there is privity between them,
Privity refers to a succession of relationship to the same thing, whether created by deed 01' other
acts or by operation of law. fuuior at 745, The Court goes on to state that each predecessor
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lot 16 that i~ 011 lot I 5, Th~ 1IJl.\1Q[ case at page 745 states that the law mandates that a person
asserting II c1l1im of IIdvorse possession make this IIssertion openly IInd notoriously to all the
world, There must be no secret thllt the adverse possessor is asserting a clllim to the land in
question Tjo~n Coal Co. v, Supennllrkets Gen, Corp" 519 Pac 66, 75, 546 A. 2d 1,3 (1988) It
goes on to stllte that
If the adverse possessor's claim is to be pllsscd on to a succcssor in
litle, therefore, there must be some objective indicill of record by
which it can be discerned with some degree of certainty that a claim
of title by adverse possession is being made and that the duration of
this claim bas been passed on to a successor it title,
Baylor flirt her states that
Superior Court, in SUlll, has held that whenever a grantor seeks to
convey an inchoate claim of adverse possession, whllt is required is
a reference to the disputed tract or to the grantor's inchoate right.
The indicin of record is clear in this case, that is, the starting point of all the deeds in the
Sicchitano chain begin at the eastern end of the Garcia dogwood flower bed, point "A" as shown
on Defendant's Exhibit 4, This was no secret, either on the ground, or in the record at the Gillee
of the Recorder of Deeds of Cumberland County. This reference to the beginning point being at
point" A" certainly satisfies the tacking requirements of }laylor
The Pennsylvania Supreme Court in the Baylor case in citing Stark v Lardirl 133
Pa.Super 96, I A2d 784 (1938) on page 745 of the Baylor decision, recognizes that neither the
deed in itself, nor the bare taking of possession of the land creates privity, The Superior Court
has held that even if a deed description is defective, privity can result where possession has been
actually transferred with intent to pass the title. Stark v, Lardin 133 Pa,Super, 96, I A.2d 784
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(1938) In the Stark case, the courses and distances conflicted with thtllisted adJoiners, In that
cas!" the Court found that the land used as a mill and the land in question as to an adverse
possession claim were used by the plaintlll' and its predecessors in title as a unit. Testimony was
on record tlmt It was to be conveyed as a unit. The coul11bund an actuul transler of possession
with intent to pass title Ii'om the totality of the circumstances, (Stark at 787) The Court found
that the necessary privity existed to vest title in plaint ill's (Stark. at 787, 788)
[n the Bavlor case, there was not even a minimal description of the land being claimed by
adverse possession in the deeds of prior owners, so the court found there was no privity, Baylor
at 746. In Stark, the court found intent to convey the land being claimed by adverse possession
from a totality of the circumstances where a deed with an erroneous description was involved,
Although the BlIylor court found no privity because of a complete lack of any intent on the record
to convey the land being claimed by adverse possession, the language of the case holds the door
open for a holding in Stark where there is ambiguity in the record but clear intent. Both Stark and
IJaylor permit plaintill'in this case to tat:k the interests of predecessors in title to that of the
current owner.
There is no question from the record in the case before this court that the Birneys, Garcias
and Sue Moyerman all intended to convey the triangle in question to their successors in interest.
The Birneys maintained it as their own and treated it as their own property, So did the Garcias
and Sue Moyerman, The defendant Holfmans ...ntil 1997, always thought that this triangle was a
part of the Sicchitano parcel as was admitted to by Mr. Hoffman, The triangle and lot 16 were
treated as a unit. The court may look to the intent of the parties in determining whether the legal
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lAW 011"1(:(:',
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Westerly line of Lot No, 15 on said Plan,..." (H. Ex. 2),
4. The Schimmel deed located tho Place of Beginning as:
BEGINNING at a point on the Northerly
line of Sycamore Circle, said point
being located ninety and sixty-eight
one-hundredths (90,68) feet measured in
a Westerly direction along said line
from the Westerly line of Conodoguinet
Drive;
(H, Ex, 2), This point is not at any corner of Lot No, 16 and
is actually on the southerly line of Lot No, 15, east of Lot
No. 16, at Point A (Sicchitano Exhibit 2; H. Ex, 3 and 4), The
courses and distances in the deed that follow this Place of
Beginning do not correspond with the subdivision plan,
5. If the location of the Place of Beginning in the
Schimmel deed is modified by adding an additional call:
BEGINNING at a point on the Northerly
line of Sycamore Circle, said point
being located ninety and sixty-eight
one-hundredths (90,68) feet measured in
a Westerly direction along said line
from the Westerly line of Conodoguinet
Drive, and nineteen and nine~~o one-
hundr~dths (19,92) feet alonq a curv~~
the rj,qht havinq a radius of forty- six
and t.wenty"four one-hundre~ths (46,24)
f.!atl ;
which locates the Place of Beginning at Point B IS. Ex, 2; H.
Ex, 3 and 4), then the courses and distances in the deed that
follow this modified Place of Beginning correspond exactly with
the courses and distances for Lot No, 16 as shown on the
subdivision plan (H, Ex, 2, 3 and 4),
€, By deed dated November 16, 1967, and recorded in Deeq
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Book "P", Volume 22, Page 11, Elmer T, Schimmel and Marguerite
H. Schimmel, his wife, conveyed Lot No, 16 to John H, Allen and
Doris Jean Allen, his wife (H. Ex, 2). 'l'his deed contained t)le
same description of the propet'ty as the Schimmel deed described
above (H, Ex, 2),
7, By deed dated August 12, 1969, and recorded in Deed
Book "I", Volume 23, Page 610, John H. Allen and Doris Jean
Allen, his wife, conveyed Lot No, 16 to William R, Birney and
Charlotte "1, Birney, his wife (H. Ex. 2), This deed contained
the same description of the property as the Schimmel deed
described above (H. Ex, 2),
8. In 1969 or 1970, William R, Birney planted six
evergreen bushes ("the hedge") along the line marked by Point G
and Point A (S, Ex, 2i H, Ex, 3 and 4), along the middle third
of that line (N,T, 105-106). Mr. Birney believed that Line G-A
marked the diViding Une between Lot No, 15 and Lot No, 16 on
the subdivision plani he did not believe that he was taking
land owned by som~one else (N.T, 120-121),
9, In 1978, by deed dated April 24, 1978, and recorded in
Deed Book "U", Volume 27, Page 857, Mr, and Mrs, Birney
conveyed Lot No, 16 to Charles A. Garcia and Barbara C, Garcia,
his wife (H, Ex. 2). This deed contained the same description
of the property as the Sch,i.mmel deed described above (H. Ex,
2) .
10, Mr, and Mrs, Garcia lived in the property for about
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two years, after which they moved to Europe and they rented the
property to Sue Moyerman (N.T. 20, 32),
11. When they moved into the property, there was a split-
rail fence along part of Line G-A, extending from the back of
the hedge to Point G, where it joined with other sections of
split-rail fence (N.T. 22-23, 26-27).
12. While they lived in the property, Mr. and Mrs. Garcia
added a flower bed out front, bet.ween Point A and Point B, in
which they planted a dogwood tree and around two sides of which
they added a section of split-rail fence to protect the tree
from the snowplow (N,T, 24-25). They believed that this area
was part of Lot No. 16, the property they had bought from Mr.
and Mrs, Birney, and they did not intend to take land that
belonged to someone else (N,T, 46-47),
13. In 1990, by deed dated May 18, 1990, and recorded in
Deed Book "P", Volume 34, Page 856, Mr, and Mrs. Garcia
conveyed Lot No, 16 to Sue Moyerman (H. Ex. 2), This deed
contained the same description of the property as the Schimmel
deed described above (H, Ex, 2). Mr, and Mrs. Garcia intended
to sell to Sue Moyerman the same property they had bought from
Mr. and Mrs, Birney and they did not intend to sell something
they did not own (N.T. 47-48),
14, Gayle Sicchitano moved into the house with Sue
Moyerman in 1990 (N.T. 58).
15. Sue Moyerman died on June 9, 1995 (II, Ex. 2),
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MARLIN n. McCALEH
16, By deed dated August 10, 1995, and recorded in Deed
Book Volume 127, Page 496, Sue Moyerman's Executors conveyed
Lot No, 16 to Gayle Sicchitano (H, Ex, 2), This deed contained
the same description of the property as the Schimmel deed
described above (H, Ex. 2),
17. By deed dated April 27, 1972, and recorded in Deed
Book "P", Volume 24, Page 124, John H, Allen and Doris Jean
Allen, his wife, conveyed Lot No, 15 on said Plan, being the
property known and numbered as 820 Conodoguinet Drive, Camp
Hill, to Kelly Dri-Wall Corporation, Hoffmans' predecessor in
title (H. Ex, 1), This deed, as well as all subsequent deeds
in the chain of title (H, Ex, 1), recited that it conveyed Lot
No, 15 on the subdivision plan and the courses and distances
set forth in this deed, as well as the courses and distances
set forth in all SUbsequent deeds in this chain of title,
correspond exactly with the courses and distances for Lot No.
15 on the subdivision plan (H, Ex. 1 and 3) ,
18, George M, Hoffman and Claire M, Hoffman, his wife,
acquired Lot No, 15 on the subdivision plan by deed of William
Fearen, et aI" dated June 29, 1992, and recorded in Deed Book
"T", Volume 35, Page 409 (H, Ex, 1).
19, Mr. and Mrs, Hoffman would not have purchased the
property if they had been aware of any claim by Sue Moyerman to
ownership of any part of Lot No. 15 (N,T, 175-177),
20. After purchasing Lot No, 15, Hoffmans trimmed the
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hedge on both sides and the top (N.T. 177-178), In 1993/ they
assisted Sue Moyerman in repairing the split-rail fence in the
front; she purchased the replacement rails and they supplied
the labor to install them (N, T. 178). In 1994/ they assisted
Sue Moyerman in resolving a drainage problem at the rear of
both lots; she paid for equipment rental and they purchased
materials and provided the labor to install a drain to carry
the surface water away from their respective properties (N,T,
179-181) ,
21. After she became the owner of Lot No, 16/ Sicchitano
installed an underground "invisible" fence on the Hoffman side
of the hedge, along Line G-A, to contain her dog (N,T, 66, 159-
160) ,
22, Hoffmans employed a surveyor to survey their lot and
on July 31/ 1997 he did so and he determined that the dividing
line between Lot No, 16 and Lot No, 15 was not Line G-A, but
Line G-B (N,T. 184; H, Ex, 4), The surveyor installed steel
pins at Points A, Band G, and he marked Line G-B by placing
four wooden stakes along the line four inches on the Hoffman
side (N,T, 164-185),
23. After July 31, 1997, Hoffmans trimmed the hedge on
both sides, they mowed the lawn up to Line G-B, and they tended
the flower bed out front (N,T. 185-186, 208), George Hoffman
parked his truck in the disputed triangle from August through
October 17, 1997 (N,T, 186-188), Sicchitano did not trim the
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hedge 01' tend the flowel' bl!ld, but she did mow the lawn in the
disputed triangle (and around the truck) occasionally after the
Hoffmans had mowed, so that her mowing served no functional
purpose (N,T, 153-154/ 186-189/ 209),
24, Claire Hoffman wrote to Sicchitano/s attorney on
August ll, 1997, which letter was shared by the attorney with
Sicchitano, and requested the removal from their property of
the invisible fence (N,T, 160-163), Sicchitano moved the
invisible fence from Line G-A to Line G-B at the end of August,
1997 (N,T, 163).
25, On October 17, 1997, Hoffmans attached a yellow rope
t.o the stakes marking Lint;! G-B to form a kind of fence, they
removed the sections of split-rail fence at the front of the
property, around Point A, and along the rear of Line G-A, from
Point G to the back of the hedge, and they rototilled areas
along Line G-B in front of and in back of the hedge in
preparation for planting (N,T, 186-188). Since then,
Sicchitano has not mowed on the Hoffman side of loine G-B, Sihe
has not trimmed the hedge and she has not tended the flower bed
in the front (N,T, 189),
AIWUMENT
ADVERSE PO~SESSIO~
This case is an excellent example of the problems inherent
in the application of an ancient legal doctrine to modern life,
The concept of adVerse possession originated hundreds of
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MI\f-Jl.IN ft. 1i.1"CI\I.f:f1
Years ago in an agrari~n
q sOCiety Wh l
C"tl,.tloo Of 0 'r. 'oa w.. "'a for tho
rops and the raisi
'.'a to og of 11".took, Fl"a. "e~e
grow orop. 'oa fOr . .
animals to g1'aze and
by f.oo.., Whloh ..." 'oolo,"a
marked boUndary 'i
' ~ ,nes and k pt
'od/or "tho" If . ,oi..,. "th'o
' someone intruded
of the l d uPon and tOok Possession
an of another th
' e property oWner was
forf.it", of tlt! , P'''''20a . by
e - !f he failed to
"'Ot the t".P. t'k, 1'9" '0'100 to
SSer Within the StatUte Of "i '
h'r'ho... of thl .,. ,.t,oo., Th.
s sanction is ameliorated by t~ f
f.no.. .".t ,,' 'Ot thot
' crops grow and animals
hO'r. · a. gr,,, oont1ooO,.,y, 2A
y, seven dayS a Week, ~
lOUdly proclaimin
pO.....,on of pr g "'. '"
operty and the lOcation Of P
that a property roperty lines, So
oWner who failed t ,
Us 0 recogn!ze
e and Possession and to t k
derelict d a e action aga!nst
an not deserving of sYmpathy,
In the instant case Of d
mo ern SUburbia, P
Of h."..o" 0 roPorty oOO".t.
1" So lots instead Of
,ooro. lin thl. ""'t1..or. f."., f.no," 're
case, Only a SiX-bush
gr"'ng .nl..,. · h'd9.) 'na the orop, 'n,
re replaced by lawns and shrubb
l1n.. 'r. nOt 01"r1 'ry, ProP.rty
y marked becaUse
oorn.r. t'na t , Oooa.o .t'k.. '.rklng th,
o m!grate or disappear,
aOo. not 000" 2.. 7 Th. '''nt'n"o. of ,,,.,,
' Instead, the actiVit i
b"" 1.., y . lnt'''''''nt
· 'r. 'o"a w"k1y, h .t
P'rh.p. "'.rt'rl · r'bb.ry ,. tr,..., ,... Oft.n,
y, and both actiVit,
Of ho,,, t 'eo "'O'nt Only to . oouP'e
a mOst, hardly ~
a COntinuous
USe, When adjoining
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SUch Continuous
it was trUly
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MMIUN H, MCCl\l.tu
Two neighbors on gOOd terms may qUite
POSSibly USe each other's property to a
li.'t.d ..t'nt Olthout '.pr... oon'.nt,
yet Without a Usurpatory intent,
n"ghbor. .00 th.ir la..., lt 1. "ot un"Ool for the firat oho
moo. to 'tray eoro" the property lln., or to td. the both
Slds. of shrUbb.,y n.ar the prop.rty lln., and for the oth.,
nSlghbo, to reoip'OOOt. l't.r - "thsr b"a"s. n.ith.r kno.,
pr'oJ",y oher. the lln. i" or b".u" it i. .ore oonv.ni.n,
fOr the fl'.t on. to moo or trl. to do .,, the oork. And
r'al'y, oho oar.. if nn. n'ighbor oV.r,.p. the oth., by an
in,ub.tantial amount, oh.t do.s it .att'r' Thu., the SUP,rlor
COurt has sagely noted:
LYO""-,, AnQr..., 22, P'.Sup.r. 351, 358, 333 A.2d 313, 31,
(1973) ,
In the o.s. .t bar, R'ndy Landau t..tifl'd that oh'n hl,
etsPfatbsr, """.. Birney, P'ant'd the h'dg., h. thought that
Lln. a-A .ark'd hi. prop"ty Iin.', h. dld not lnt.nd to t.k,
th, property Of "Othet IN.T. 120-12I). At the .... tim., the
t'nant next dOor 'PP".ntly h.d hl. OWn id.. .. to oher. the
prop"ty 'in. w.. Ioo"'d, h",,, the rennlng gag betw"n th"
oh're ,"oh ref'rr'd to the h'dg. .. "my b"h"" IN.T. Xl".
Thi. 'mpll" the PO'Slblllty Of . P""'siv. us. hy Mr. Bir",y
'unfortun""y, Mr. Birn.y, who 'PPO"n"y 0.. aV''''bl. to
t..tify by Vid'ooonf.r.no. ".T. 12'-127), .. d'd Mr. L'nd.u 'nd
Mr.. G.rol., Wa. not oall.d by Sl""itano and '0 o. oill n"er
know Why he made this mistake,
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and that hardly sounds like usurpatory intent,
Moreover / dUring the time that t.he Birneys and the Garoias
owned t.he pr.operty (Lot No. 16) / the property now owned by
Hoffmans (Lot. No. 15) was rented to tenants, Those tenants,
who obviously had the responsibility for maintaining the lawn,
had no reason to oomplain if someone else mowed the lawn and
t.rimmed the shrubbery on their propertYi it was just that muoh
less that. the tenant had to do, By the same token, the
landlord, who did not reside on the premises at l,ot No, 15, had
no reason to know who aotually mowed the lawn or trimmed the
hedge or maintained the flower bed along the common property
line, or that the neighbor cr.ossed the property line to mow the
lawn, trim the hedge or maintain the flower bed, and his tenant
had no incentive to tell him, Such intermittent uses are
hardly enough to put the landlord on notice of an adverse
claim, Thus, it seems rather draconian to apply a statute of
limitations against an absentee landlord, and hence his
SUooessor in interest, when he had no reasonable way of knowing
of any adverse claim to his property interest,
'rHE DES.QRIPTION OF LOT NO._16
In our Trial Brief, this writer disoussed the error in the
legal desoription of Lot No, 16/ as well as the law of
Pennsylvania to the effect that the reference to a plan
oontrols over inconsistent courses and distances and that
discussion is incorporated here by referenoe. Hoffmans' Trial
-10-
l.AW 01'/"1('1:',
Brief, Pp. 3-5.
In ~ Y. Coleman, 94 Pa,super. 62 (1928), the deed
described the property Conveyed by courses and distances, one
of which was said to be 99,60 feet when it should have been
about ten feet shorter; the deed also referred to the property
as Lot No, 109 on a certain Plan and further described it as
being adjoined on one side by Lot No, 108 and on the other side
by Lot No, 110, The Superior Court held that the reference to
the Plan incorporated that Plan into the deed on the same
footing as monuments and that the Plan corrected the erroneous
distance, Id. at 67.
In the instant case, the description for Lot No, 16
recites that the property is Lot No, 16 on the Conodoguinet
Pl.an of Country Club Hills, and further, that it is bounded on
the west by Lot No. 17 and on the east by Lots Nos, 14 and 15
(S, Ex, 1; H, Ex, 2), As in Har~er v. Coleman, supr~, these
references to the Plan and the adjoiners incorporate the Plan
into the deed and correct the erroneous location of the point
of beginning,
This rule is a bedrock principal of title examination that
title searchers and real estate conveyancers have relied upon
for years, Obviously, the conveyancers involved in the six
conveyances of Lot No, 16 over the last 40 years relied upon
it, for there has been no Change to or correction of the
description over that period of time. If any conveyancer
-11,
LAW OI'1'H."I:';
MAHl.lN f1 McCAl.EB
t.hought t.hat the description included part of L,ot No, 15, the
reference to the Plan would certainly have been revised to
include "", and part of Lot No, 15",."
The evidence clearly indicates that the erroneous location
of the point of beginning results from scrivener error instead
of the developer's intent to take part of Lot No. 15 and add it
to Lot. No, 16, As wri t ten, the description purports to begin
at Point A instead of Point B, where the Plan says that it
should begin, There is no course or distance that moves from
Point A to Point 8, as one would expect if the developer was
including a portion of Lot No, 15/ this is the misSing call
that causes all the problems, The courses and distances
following the point of beginning do not correspond with the
Plan, The final call ends at Point. 8, not Point A, resulting
in a description that does not close, If the developer had
intended to include a port.ion of l,ot No, 15 wit.h the conveyance
of Lot. No, 16, t.hat would have amount.ed t.o a resubdivision of
l,ot No, 15, for which anot.her Plan would :1ave been required,
The description of Lot No, 16 would have been revised to
include the addition of part. of Lot 15 and the description of
Lot No. 15 would have been revised to delete the same part,
Since no revision took place it is most unlikely that any of
this was intended,
On the other hand, if the missing call (supplied by the
Plan) is added t.o the location of the point of beginning, so
-12-
that the description begins at Point B, then all of the oourses
and distanoes and referenoes to adjoiners and lots oorrespond
with Lot No. 16 on the subdivision plan Rnd no revision of that
plan would have been required. Thus, it is much more likely
that the problem arose when a careless scrivener inadvertently
omitted the second call in locating the point of beginning. At
any rate, that is what conveyancers have accepted for 40 years.
In summary, the deeds in the Siochitano ohain of title (H.
Ex. 2) COnveyed only Lot no. 16 and no part of Lot No. 15.
PRIVITY
In our Trial Brief, this writer disoussed at length the
issues of privity and tacking of Possession and that discussion
is incorporated herein by reference. Hoffmans' Trial Brief,
Pp. 5 - 9 .
The lending case is !;lavlor v. Soska, 540 Pa. 435, 658 A.2d
743 (1995), where the adverse possessor claimed title to land
that was not included in his deed but was within the legal
title of his adjOining neighbor. Because he had only owned his
land for 15 years, he sought to tack the use and possession of
the grantor from whom he had acquired title. The Supreme Court
reviewed that law of privity and noted that where a grantor
seeks to convey an inohoate claim of adverse possession, his
deed must include the disputed tract or the grantor's inchoate
right:
LAW OfTlCf:';
There is good reason for this
requirement. Interested parties have a
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IAWWTI('l';
MARUN 11 MctALr-:11
....
mentioned as an adjoiner. Thus, the Sicchitano chain of title
does not by "means minimally acceptable for conveyanoi.ng of
realty" convey any interest in the disputed portion of Lot No.
15.
Hoffmans purchased Lot No. 15 in 1992. At that time, Lot
No. 16 was owned by Sue Moyerman, who claimed title to the line
formed by the fence and hEldge. Hoffmans did not then know that
Moyerman claimed title to part of Lot No. 15, but if they had
known of such claim and if they had attempted to investigate
her olaim, they would have learned nothing from the Sioohitano_
Moyerman chain of title because all of the deeds in that chain
conveyed only Lot No. 16 and claimed no part of Lot No. 15.
The grantors in those deeds failed to state for the reoord any
olaims they had to any part of the Hoffman property and so they
failed to keep the flag of adverse possession flying.
Hoffmans had no way of then knowing about any claims of adverse
possession by prior owners Garcia and Birney. Hoffmans may
well have ooncluded that if Moyerman had any claim to l,ot No.
15, it originated with her (she bought the property in 1990)
and they would have been falsely lulled into believing that
they had many years before a claim of adverse possession
matured. 1'his is precisely the evil that the Supreme Court
sought to prevent in Bavlor,
A case very similar to the case at bar is Wittiq v.
Carlacci, 370 Pa.Super. 584, 537 A.2d 29 (198A). There, the
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lAW (II fll.f~;
M^,ILlN Ii McCAl.EB
Grantor acquired a tract of land in 1951. In 1952, the
property was surveyed and subdivided into two lots. The
Grantor's house was located on one lot (the "residence lot")
and the other lot was held as an adjoining lot (the "adjoining
lot"). In 1956 or 1957, the Gt'antor erected a fence between
the two lots, but the fence was actually located a foot inside
the subdivision line, on the adjoining lot side of the line.
In 1959, the Grantor sold the adjoining lot to Carlacci's
predecessors in title, by a deed that described the property
according to the 1952 survey and subdivis.i.on, not the fence
line. In 1964, the Grantor sold the residence lot to Wittig by
a deed that also described the property according to the 1952
survey and subdivision, not the fence line. In 1982, Carlaoci
removed the fence and Wittig sued, claiming title up to the
fence by adverse possession.
The residence lot had used the property up to the fence
line since the fence was erected in 1956 or 1957. However,
because Wittig had only owned the property for 18 years at the
time of suit, he had to tack on the possession of his
predeoessor, the Grantor, in order to establish the requisIte
period adverse possession. The Superior Court held that he
could not do so because the deed from the Grantor to Wittig did
not include in the description the extra one foot between the
survey and subdivision line and the fence:
Thus, a grantee cannot tack his
grantor's possession of land when the
grantor does not convey such land to
him.
- 16 -
~, 370 Pa.Super. at 590, 537 A.2d at 32.
It doesn't matter that the parties mistakenly thought that
the property line was other than where the deed plaoed it. In
~~, the Grantor testified that she believed that the fence
marked the subdivision line between the residential lot and the
adjoining lot. Nevertheless, the Court held:
It matters not that she mistakenly
believed that the deed description
inoluded all land adjacent to the fence.
Mrs. Kile [the Grantor) testified that
both the Carlacci and Wittig deeds
aocurately described the land which she
and her husband intended to convey.
Therefore, this was not a case in which
there was an intent to convey more than
the Kiles owned; the period of the
Kiles' occupancy could not be tacked on
to the eighteen years in which the
Wittigs held possession of the land up
to the fence.
lJL
In the case at bar, Sicchitano's predecessors in
title believed, erroneously, that Line G-A was the property
line. However, neither the Birneys nor the Garoias intended to
oonvey more property than they owned (i.e., than what they had
purchased from their predecessors), and in fact their deeds
conveyed only Lot No. 16 and no part of Lot No. 15. The deeds
conveyed exactly what the grantors intended: the same property
they had purchased from their predecessors, nothing more,
nothing less. Therefore, as in W~ttiq, their mistaken belief
as to the location of the property line did not matter beoause
IAWO!TIf 1:'.
MAIU,IN" M,CAI.I:Il they did not intend to oonvey more than what they owned or more
-17-
than what their deeds described.
THE QUIT CLAIM DEED~
At trial, Sicohitano offered into evidence the quit claim
deed of Barbara Gard.a, widow, dated April 21, 2000 (S. Ex. 6),
and the quit claim deed of Sue Moyerman's Executors, also dated
April 21, 2000 (S. Ex. 7), both of which purport to convey to
Sicchitano their. inchoate rights of possession in and to the
disputed parcel, in obvious response to Bavlor v. Soska. suora.,
Sicchitano therefore admits that the deeds in her chain of
title do not. include such inchoate rights of possession.
However, these quit claim deeds are to no avail.
First of all, there are no inchoate rights to convey to
Sicchitano. In this case, because the disputed triangle was
allegedly used as part of the lawn of Lot No. 16, the inchoate
rights of possession thereto, if any, are incidental to the
legal title to Lot No. 16. When the previous owners conveyed
title to Lot No. 16, if they failed to include that inchoate
interest in the conveyance, either the use of the property was
permissive (so that adverse pOssession does not apply) or the
grantor abandoned any intent of adverse hOlding. castronuovQ
v. SordQUi... 357 Pa.super. 187,194,515 A.2d 927,931 (1986),
citing Masters v. Local Union #47~ 146 Pa.Super. 143, 146, 22
A.2d 70, 72. If the use of the disputed triangle was
permissive, there is nothing to convey. If the inohoate
l.AW OfTKT.'i
MARLIN 11. McCAl.EB
interest was not conveyed with the title to which it was
-18-
I.AW OUIl'I';
MARLIN n Md:^LU1
ancillary, then it was abandoned (hence, lapsed) and there is
nothing left for those grantors to now convey.
Seoondly, Barbara Garcia did not acquire any title to Lot
No. 16 until April 24, 1978, so that any possessory rights she
may have had in and to the disputed tract could not have
originated before that date. Hoffmans commenced their Aot.ion
to Quiet Title herein on April 3, 1998, thereby tolling the
statute of limitations before the 20th anniversary. Thus, the
possessory rights of Garoia, if any, even when combined with
those of Moyerman and Sicohitano, do not add up to 21 years, so
that Sicchitano fails in her burden of proving adverse
possession for the continuous period of 21 years.
STATEMENT OF ADVERSE POSS~SSION
Under the provisions of the Act of May 31, 1901, P. L. 352
(68 P.S. 81 et seq.), Sicchitano recorded a Statement of
Adverse Possession with the Recorder of Deeds of Cumberland
County, Pennsylvania, on February 25, 1998, in Deed Book Volume
172, Page 580. This Statement purports to set forth her olaim
to the disputed portion of Lot No. 15 and so it constitutes a
cloud upon the Hoffmans' t.itle.
According to the statute, such Statement must be filed by
the claimant within six months after going out of possession of
the proper"ty. lQ.,., (68 P,S, 81). Here, Sicohitano lost
exclusive possession of the disputed property when the survey
was completed on July 31, 1997, and the oor.reot property line
-19-
l.\Wr'r-!!cL';
MM~LlN fl. MtCAU':1l
(Line G-B) was staked by the surveyor. Thereafter, Hoffmans
mowed the lawn up to Line G-B, they trimmed the hedge and they
tended the flower bed, Sicchitano did not cross that line to
trIm the hedge or to tend the flower bed and the few times that
she attempted to mow the disputed area were right after
Hoffmans had mowed, Her displ.acement was completed in August
when Hoffmans began parking their truck in the disputed area,
preventing any further use thereof by Sicchitano, and they
demanded the removal of her invisible fence from Line G-A and
she obeyed, The recording of her Statement occurred more than
six months after she relinquished possession of the property
and it is therefore untimely.
In addition, for the reasons stated elsewhere in this
Brief, she never acquired title by adverse possession to the
disputed area and so her Statement is invalid and without merit
and should be stricken from the record.
CONCLUSION
Sicchitano has failed to prove that she acquired title to
the disputed triangle by adverse possession. As the result,
there is no merit to her recorded Statement of Adverse
Possession and it should be stricken from the record because it
constitutes a cloud upon Hoffmans' title.
Hoffmans request your Honorable Court to enter judgment in
favor of Hoffmans and against Sicchitano in Hoffmans' Action to
Quiet Title filed to No. 98-1848; to further order that
-20 -
. <. .
Sicchitano's Statement of Adverse Possession is invalid and
cancelled and that a true and correct copy of that Order be
recorded with the Recorder of Deeds of Cumberland County,
Pennsylvania, indexed against Gayle Sicchitano as Grantor and
against George M, Hoffman and Claire M. Hoffman, his wife, as
Grantees, in order to accomplish such striking or cancellation;
or, in the alternative, that the Recorder of Deeds be ordered
to strike the Statement of Adverse Possession.
Hoffmans further request your Honorable Court to enter
jUdgment in favor of Hoffmans and against Sicchitano in
Sicchitano's Action to Quiet Title filed to No. 98-1940.
Date: October 6, 2000
~
Marlin R. McCaleb, Esquire
Attorney I.D. No. 06353
219 East Main Street
P.O. Box 230
Mechanicsburg, PA 1'7055
('11 7) 691-7770
FAX: (717) 691-7772
Attorney for Hoffmans
-21-
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I .N D E X TOW I T N E SSE S
FOR SICCHITANO DIRECT CROSS REDIREQ#: RECROSS
Gayle Sicchitano 14,56 81,146 157,164 159
Barbara Garda 19 31. 48,50 49,51,54
Randall Landau 102 11.3 125 126
Karen Gopear 12fl 139 145
FOR HOFFMANS
George Hof fman
Claire Hoffman
DIRECT
171
199
CROSS
198
REDIRECT
RECROSS
2
1
2
3
.1
MR. lIIJ!.,lm: And we have that in the
schedule.
THE COURT I All right.
MR, McCALEB I You're taking us to lunch, is
5 that correct., ,rudg(.]?
6 nm COURT: That's not exactly correct,
7 MR, ADI.,ERi l've labeled the Plaintiff's
B Exhibits 8-1 through 8-B.
9 THE COURT: Well, did the stenographer mark
10 them?
11 MR. ADLER: They are marked. If she'd like
12 to give them a different label --
13 THE COUR'f: We need to have her ini t.ials on
14 them. They should probably be marked Plaintiff's Exhibits
15 1 through B.
16 I just realized why you marked it as S-l
17 through B, because of two Plaintiffs. We'll change those
lB back to S for 8icchitano.
19 MR, McCALEB: Well, except, Your Honor, the
20 order of consolidation of the case specified that the
21 caption would be read, Ms. Sicchitano as Plaintiff and
22 Hoffmans as Defendant, as I have on my trial brief. So, I
23 mean, we can st.ill go by Plaintiff and Defendant. It
24 doesn I t matter to me. I still t.hink it would __
25
THE COURT: I think probably Mr. Adler had
5
1 the bet ter idea wi th the two capl::i Olin, So let's let Ms,
2 Yinger change that again.
3 (Whereupon, Exhibits 8-1 t.hrough S-8 were
4 marked for identification,)
5 MR, McCALIW: Your Honor, I have two
6 exhibits that I think we will mention for the record at
7 this point, They are larger versions of exhibits that were
8 in Mr, Adler's first eight, I have a copy, which I have
9 marked as Defendant's Exhibit 3. I don't care how the
10 stenographer does it, It's a copy of the subdivision plan
Il from which both lot.s were purchased.
12 And what I've marked as Defendant's Exhibit
13 4 is a copy of a survey that. was obtained by Mr. and Mrs,
14 Hoffman in April of 1998. Smaller versions or partial
15 versions of these are in his list of exhibits. But I have
16 agreed that he may LIse these during his-.- t.he presentation
17 of his case for purposes of clarity and especially when
18 he's talking to the witnesses on the teleconference.
19 I think these two will probably be easier to
20 work with. I just want to make it clear, I'm not offering
21 these exhibit.s at this time, but I have no objection to him
22 using either of t.hese exhibits during the presentation of
23 his case.
24 THE COURT: All right. Why don't we have
25 them marked as Hoffmans' E)(hibits 1 and 4?
6
0"-
1
MR, McCALEB: While I'm here, Your Honor,
2 for your convenience, I have a copy of each for you. And
3 it might assist you in following testimony if you have your
4 own version directly in front of you.
5 THE COURT: Mr, Adler, do you have any
6 objection to my looking at those two items?
7 MR. ADLER: No.
B THE COURT: Okay. Why don't we take a
9 moment and have the stenographer remark those items as
10 Hoffmans' Exhibits 1 and 4.
11 MR. McCALEB: Three and four,
12 THE COURT: Three and four. I'Tn sorry.
13 (Whereupon, Hoffmans' Exhibi ts 3 and 4 were
14 marked for identification.)
15 MR. McCALEB: Further, Your Honor, I had
16 planned to introduce two exhibits in our portion of the
17 case. What I have marked as Defendants' Exhibit 1, which I
18 guess will become Hoffman Exhibit 1, is an abstract of the
19 Hoffman chain of title back to the developer. And the very
20 last page or last three pages of that abstract is a copy of
21 the most recent deed, the deed by which Mr. and Mrs.
22 Hoffman acquired the property.
23 The abstract was part of the pleadings, and
24 everybody acknowledged it anyway. The other document,
25 which is marked Defendants' Exhibit 2, which will become
7
1 Hoffmall }':xhili.it /., if! all abrlt:J:ac:t of' Mi.l , Hic:ch.itano'E1 chain
2 of U,tle back to the Elan\(~ develope!:'. Alld attached to that
3 is also a copy of each of the deeds, which is part of the
4 abstract.
5 And then I will say to you, the reason for
6 including each of her deeds in this is that there is an
7 error in the description of her deed. It's an error that
8 occurred in the first deed out of the developer and has
9 been carried forward in each of the succeeding deeds, I
10 don't know if it's material to the case, but I attached a
11 copy of each deed just to establish that the same error has
12 occurTed and been brought down through each transaction.
13 Again, I'm marking these exhibits for Mr.
14 Adler's benefit to use during the presentation of his case.
15 I'm not offering them yet as exhibits in my case.
16 THE COURT: Okay. We'll take a moment and
1'7 have the stenographer mark those as Hoffman exhibi ts,
18 (~lhereupon, Hoffmans I Exhibits 1 and 2 were
19 marked for identification.)
20 MR, McCALEB: With the other exhibits, Your
21 Honor, I have a copy of each for your use during the trial.
22 THE COURT: Mr, Adler, do you have any
23 objection to my looking at those two items?
24
25
MR, ADLER: No, sir.
THE COURT: All right. With that, are
8
/.#""
1 counsel ready to proceed?
:I. ~1R, ADI..ER: There were jUfJt a few other
3 stipulations.
4 THE COURT: All right:.
5 MR. ADLER: And that was in our-- as we
6 discussed at the pretrial conference in our references to
7 lot 16, when talking about the triangle in dispute, it
8 should actually have been 15. And the same with t.he
9 statement of claim of adverse possession reference as to
10 lot 16, where the triangle is located, should be 15. And
11 counsel stipulated that is the case.
12 MR. McCALEB: Correct, Your Honor.
13 THE COURT: All right.
14 MR, ADLER: Also in our statement of claim
15 concerning the adverse possession of the triangle, the
16 description of that triangle was not quite right, and we've
17 offered Exhibits 8-7 and S-8 which have the correct
18 description of that triangle in them,
19
THE COURT: I assume, t.here will be some
20 evidence to that effect or am I to take the stipulation as
21 the evidence?
22 MR. McCALEB: I think the point he's talking
23 about is probably disclosed by the survey, Your Honor.
24 MR. ADLER: Yes, it's disclosed in the
25 subdivision plan and survey, and I think we can stipulate
9
,.."
1 that t1w quick claim and description is, j,n tact, ot the
2 description of the triangle.
3 TH8 COURT: So the stipulation is exactly
4 what?
5 MR. ADL8R: The legal descript ions in
6 Exhibits 8-7 and 8-8 should be reflected in the statement
7 of claim of adverse possession as well.
8
TE8 COURT: Okay. So you're asking to amend
9 the complaint and the statement?
10 MR, ADLER: That's correct, to reflect the
11 proper description of the triangle.
12 TE8 COURT: All right. Mr, McCaleb.
13 MR. McCALEB: I don't have any obj ect ion to
14 that. I would just point out that the statement of adverse
15 possession has been recorded down in the recorder's office,
16 so the amendment is effeotive only for purposes of this
17 proceeding. That would require a separate document, I
18 think, to correct things down there.
19 THE COURT: Mr. Adler.
20 MR, ADLER: That's correct.
21 THE COURT: All right. We'll enter this
22 order.
23 (Whereupon, the following Order of Court was
24 entered. )
25 ORDER OF COURT
10
"...-
1 are hero in trial in the cases of Hoffman v. Sicchitill1Q
2 and &cctLi..liuJ9. v, HoU'man at Nos. 98-1843 CIVIL. TERM and
3 98-1940 CIVIL TERM, Ms. sicchitano's counsel is Mr. Adler,
4 and the Hoffmans' counsel is Mr, McCaleb, Mr. Adler,
5
MR. ADLER: Thank you. Having never done
6 this before, are they ready to call or have Mrs. Garcia
7 appear on the moni to'c?
8
THE COURT: The question is, is Ms. Garcia
9 ready to testify?
10
MR, GLENDROW: I am sorry. I don I t know if
11 Ms. Garcia is here. Can you all hear me?
12
THE COURT: We can hear you. Just for the
13 record, what is your name?
14
~IR. GJ.ENDRO~l: My name? I'm Miguel
15 Glendrow, I'm the co-worker here at Kinko's.
16
THE COURT: Okay. Fine. I just needed that
17 for the stenographer. And as soon as Ms. Garcia is
18 available, just let us know, and we'll take her testimony,
19
MR. GLENDROW: Yes, sir.
20
THE COURT: All right.
21
MR. ADLER: That is El Paso, right?
22
MR. LONG: Yes.
23
MR. ADLER: Thank you. Then I'd 1 i ke to
i
I
24 briefly call Ms. Sicchitano to go through the exhibits.
25
THE COURT: Okay.
13
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Whereupon,
GAYLE: 8ICCHITANO
having been duly sworn, testified as followsl
DIRECT EXAMINATION
BY MR. ADLER:
Q Ms. Sicchitano, would you please state your
full name and address for the record?
A My name is Gayle Sicchitano. I live at 818
Sycamore Circle, Camp Hill, Pennsylvania.
Q And what's your occupation?
A I'm a financial advisor.
Q And how long have you owned 818 Sycamore
Circle?
A
Q
A
1990.
Q
run through the
I've owned it since AuguBt 1995.
How long have you lived there?
Since about August -- well, in the summer of
Just for preliminary matters, we're going to
exhibits so that they're authenticated for
purposes of the next witness, then we will bring you back
to testify further. I'd just like to show you what's been
labeled as Exhibit 8-1. What is that?
A This is a deed from the executors of Sue's
estate transferring the property to me.
Q And that's recorded here in the courthouse?
14
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A To my knowledge, it is, yes,
Q Exhibit S-2, what is that?
A It appears to be a subdivision plan, plot
plan of the area.
Q Of the area in question?
A Yes, of the neighborhood.
Q Okay, And your lot is which lot number?
A Number 16.
Q And the Hoffman lot is which lot number?
A Number 15.
Q And can you tell the Court by the
coordinates on this plan where the area in dispute is?
A The area in dispute is the triangle defined
by the letters A, B, and G.
THE COURT: I'm sorry?
THE WITNESS: A, B, and G.
THE COURT: A, B, and G?
THE WITNESS: Uh-huh.
THE COURT: Okay.
BY MR. ADLER:
Q That was Exhibit S-2. This is Exhibi t S-3.
What is that?
A This is a description on paper of the
Hoffmans' lot 15.
Q Okay, So as far as you know, that was a,
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survey that they performed for their property?
A Yes, that's what they 8aid.
Q Does that 8how the approximate location of
the bushes in question and the area in question?
A Yes.
MR, GLENDROW: Ms. GClrcia is here.
THE COURT: Okay. Thank you. She can have
a seat there so she can watch what's going on.
BY MR. ADl,ER:
Q I'm going to show you Exhibit S-4. These
are copies of pictures there. Actually, I have the
originals here. Did you take these pictures?
A Yes, I did.
Q And around when did you take them?
A I took them soon after the survey was done
and the discrepency was filed.
Q Around when was that?
A In the summer of 1997.
Q And just very briefly, we have labeled these
with numbers 2, 4, 5, 6, 7, 9, 10, and 12. Could you just
very briefly describe what each picture shows?
A Picture 2 shows the truck parked on the
disputed area, and it also shows where I mowed around it.
Picture 4 is a picture of the fence at the
back of the hedges, as it was repaired after the flood in
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1 '96.
2 Picture 5 is a picture shot from that fence
3 out to the street.
4 Picture 6 is a picturo of my home and part
5 of the Hoffmans' lot, That shows the split rail fence out
6 front and where the telephono pole is located.
7 Picture 7 is a picture shot from the street
8 through the Hoffmans' property, and you can see the fence
9 at the back as it was repaired.
10 Picture 9 is a closer picture of the split
11 rail fence near the telephone pole and that are~l.
12 picture 10 is a picture taken from the
13 street back to the bushes.
14 And picture 12 is just a little different
15 view of picture 4.
16
17
Q
A
Okay. Thank you. Exhibit S,.5 is what?
It's a smaller version of the one we saw
18 before, and that includes more lots in the neighborhood.
19 THE COURT: A smaller version of a plan'?
20 THE WITNESS: A plan.
~1 THE COURT: Okay.
22 BY MR. ADLER:
23 Q And S - 6 ?
24 A This is a deed from Barb Garcia to me, and
25 it concerns the triangle.
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Q And 77
A Is a deed from the Moyerman estate to me,
It concerns the same triangle.
Q
A
And S-87
S-8
THE COURT: I'm sorry. I lost track there.
7 Seven was what again?
8 MR. ADLER: Seven was the quick claim deed
9 from the estate of Sue Moyerman to Gayle Siochitano.
10 THE COURT: Okay.
11 THE WITNESS: And the last is a statement of
12 adverse possession.
13 MR, ADLER: Okay. Thank you very much. At
14 this time I think we're ready for the testimony of Mrs.
15 Garcia.
16 THE COURT: Okay. Ms, Garcia, can you hear
17 me all right? Thank you very much for coming in today. My
18 name is Wesley Oler, and we're here in Cumberland County,
19 where you used to live, I guess. And we appreciate your
20 being available for testimony in the cases of Hoffman v.
21 Sicchitano and Sicchitano v. Hoffman, We need first to
22 swear you in, so I will ask you to raise your right hand,
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please,
Whereupon,
BARBARA C, GARCIA
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having been duly sworn, testified as follows via video
transmission:
7
THE COURT: All right. Thank you. And the
attorneys here are Mr. Adler who represents Ms. Sicchitano
and Mr, McCaleb who represent.s t.he Hoffmans. If you have
any trouble hearing, just let us know, and we'll ask
counsel to speak up. And if you have any trouble seeing
anything, just let us know, and we'll correct that problem
also, Mr, Adler is calling you as his witness, Mr. Adler.
MR. ADl,ER: 1'hank you very much.
DIRECT EXAMINATION
BY MR. ADLER:
Q Mrs. Garcia, can you hear me?
A Yes, very well. Thank you.
Q Thank you for being here today. We finally
get to meet, not quit.e in person, but as close as we can
get right now. Do you have the exhibits with you?
THE COURT: We need Ms, Garc ia - - I'm sorry.
We need your full name and your address.
THE WITNESS: Do you want my name?
BY MR. ADLER:
Q Yes, would you please give us your full name
and address?
24 A Barbar'a C, Garcia, 3217 Mesa Verde Lane, El
25 Paso, Texas, 79904.
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THB COURT: Thank you,
2 BY MR. ADl.ER:
3 Q Now do you have the exhibits with you that I
4 had Hen\.: to you?
5
Yes.
A
Q Okay.
preliminary matters.
Circle in Camp Hi 11?
A Yes.
Good. Let's just start out with some
You're familiar with 818 Sycamore
Q
And when did you live there? When did YOll
move there?
A We bought the house in 1978, and ll.ved there
just two years before we were overseas again.
Q And how long did you own the property?
A Oh, about 10 more years.
Q Now do you have Exhibit S-2 there with you?
A My home is marked S-4, but 2 on the first
page is a truck.
Q S-2 is the subdivision plan showing the lot
layout.
A Oh. Yes, sir, I have it.
Q Okay. Good. Now looki.ng at that plan, you
see lots 16 and 15?
A I do.
Q All right.
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A Yeah.
Q Your lot was which lot?
A Number 16.
Q And the triangle in question ie located
approximately where?
A Well, it's obviously near the property line,
as far as I can determine, between lot 16 and lot 15.
Q All right. Do you see the coordinates A, B,
and G on 8-2?
A Yes, I do.
Q Is that the approximate location of the area
in quest ion?
A As far as I'm aware from what you've told
me, yes.
Q If you're looking at this plan-- aotually,
it might be easier if we turn to 8-3. Do you have S-3
there?
A Hold on a minute. Yes, I do. Yes.
Q Now this shows the Hoffman lot. That's tnat
lot 15, next door'?
A Un-huh. Yes.
Q You see the drawing of the hedge around the
middle along the-.. I think it's the western boundary of the
lot. It says, high hedge, flower bed? You see in the
middle of the plan, it says, brick ranch house, number 820?
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A Yes, I do, That's it.
Q You look to your left, and you 1Jee the
drawing of the hedge?
A Yes, Yes, it says, flower bed, yes, yes,
Q That's what I'm refel'ring to.
A Yeah, I see it, yes.
Q Okay. Was that hedge there when you moved
into the property?
A It was,
Q And can you generally describe that hedge?
A It's somB sort of privity. I'm not quite
sure, but it was very dense and very thick. I t had been
there quite a while, And quite high. You know, it might
be between five and six feet.
Q Okay. And as far as you can tell on the
layout of the lot, does that approximate where the hedge
was located when you owned the propflrty?
A Yes, I believe so.
Q Now can you generally describe what fencing
was on the property, on that side of your property back in
1978 to 1980?
A Yes. The back-- looking from the street, on
the back of the hedge to the property line, there was a
split wooden fence. Then there was a break where it meshed
with the bushes, And beyond that towards the street, it
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was just blank. There was a lawn t.here, BO on. When we
bought the property, that's the way it was.
Q Oki.lY. So from the back of the hedge going
to the back of t.he property, tl~re was a split rail fence?
A That's correct. And then also along the
back behind it, behind my house, t.here was also a split
fence, so that the whole property was enclosed with a split
wooden fence all around.
Q Okay, Then looking at this plan again, 8-3,
was there any split rail fence between that hedge and
Sycamore Circle, the street?
A No, no, c.here was nothing. I t was open.
Q Going to the front of the property along
Sycamore Circle, it shows, do you see where it says, flower
bed?
A Yes.
Q Now --
A Uh-huh.
Q Was that there with that tree when you moved
in or did you put that in?
A We put that in.
Q And what did you put in there?
A We put in a dogwood tree Clnd maybe bulbs. I
can't remember, But we definitely put in a tree.
Q And that was around when, do you know?
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A Correct.
Q Now as far as maintenance of the area
following the line from the street where that split rail
fence was back to the hedge and back to the back of your
corner af the property, lot 16, how did you maintain that
area?
A Well, we kept it cut. But we had a person
come in every month and spray and so on to keep the weeds
and encourage the lawn to grow. It was quite a large area.
But -.. and they did a good job, But we actually cut the
grass ourselves.
Q
Okay. And you cut the grass up to what
point on that boundary line?
A Well, from the- - we followed the hedge from
the back of the property all the way up past the bush and
out to the road in a straight line until-- obviously, we
didn't mow that little bit where it says, bed, there, which
is flower bed or whatever. But we just followed it out.
And it looked very nice. It was just a natural division
there.
Q How did you take care of that five to six
foot hedge?
A We cut it. The people next door were
rentel's, and they weren't very enthusiastic about
gardening, so I cut it and planted bulbs and things around
25
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1 t.he bottom of it for the springtime then. So I did it, We
2 were quite happy to do it actually,
3 Q 80 you did it for the whole time that you
4 were there?
5 A Yes.
6 Q Did you trim?
7 A And I believe afterwards, the lady who
8 rented from us did it also, took care of it, because she
9 asked me about it. And I told them that's what we wanted
10 her to do, make sure the lawn was kept up and, you know,
11 the little bed and so on.
12 Q Did you just trim on your side of the five
13 foot hedge or did you trim the whole way around the hedge?
14 A Well, we tended to it all the way around
15 because, otherwise, it looked kind of strange. So we just
16 did it, And the renters didn't mind at all. The people
17 next door didn't mind.
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Q
How about j,f we turn your attention to t.he
pictures, 8-4?
A 8-4. Let's see. Yes, which one do you
want?
Q Let's look at number 4,
A Yes.
Q Can you tell me, one, was that fence there
when you moved in or did you put that in?
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No, that. was there. That was there when we
arrived. WE' didn I t put any fence in there at all.
Q Okay. And that'H looking from where to
where that --
A That-- at the edge of our house looking
towards Sycal1lote Circle, just about there. There is quite
a lot. of ~lpace between thero and the house. But just
J.ooking there. The bush looks bigger than it was. I
suppose, it's grown. But that's where it was, yes.
Q And you maintained everything to the right
of that fence in that picture number 4?
A We did, Yeah, we did,
Q And that's the bush that you trimmed?
A Yes, indeed,
Q On a regular basis?
A I think it's grown a bit, but otherwise,
yes.
Q Let's look at picture number 6.
A Yes.
Q What does that show?
A It shows 818 Sycamore Circle plus the
dogwood, which looks quite large now, It's donE! quite
well.
Q Is that the fence that you put in, that
L-shaped
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To the best of my knowledge, it Is, yes. I
A
2 bel ieve so. They may have-.. somebody may have replaced it,
3 legs or something, but, yes, that's the fence.
4
So that was the tree that you planted in the
Q
5
bed that you created?
A Yes.
Q Let's look at picture number 9.
A Yes, I have it.
Q And what is that?
A Well, that's a similar picture, just a
different angle. But I recognize all of it.
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It's the front entrance to the house?
A
Uh-huh.
Q
And that's again the fence that you put in?
A
Yes, uh-huh, yes.
Q
And then you see the bush in the background?
A
Indeed, yes.
Q
Looking from that angle, can you generally
19 describe the area that you maintai.ned on that side of your
20 property?
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A
Yes, there's a light pole there, so
22 everything, you know, behind that fence when we trimmed,
23 everything all along the edge and so on, that was part of
24 our property, so we just maintained the whole thing. And
25 the gardeners came and fertilized it every year with all
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the other bushes and thinSjs about the houBe.
Q So you had taken care of the bedB, the bush,
and the grass on your Bide of that fence?
Everythi.ng, yes,
For the time --
The snow removal and everything else.
For the entire time that you were there?
Yes,
Just looking at picture 10?
Uh-huh.
Can you tell what that is?
Well, I believe it's part of the dogwood
corner of this little L-shaped fence. It looks
like a light pole there. I believe there was one there,
It seems to me, we had a pole there then, yes.
Q Is that the same area that we've been
talking about all along?
A Yes, indeed, uh-huh.
Q Now did you always have the service maintain
this or did you do part of this yourself?
A No, we- - Chern Lawn came and fercilized every
A
Q
A
Q
A
Q
A
Q
A
tree in the
month because it was quite large, the garden. But we
actually cut the grasB ourselves. We trimmed and di.d that
sort of thing and planted. We actually had a nursery come
and put the little tree in. I remember that. But mostly,
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1 we did it ourselves, except for the fertilizing, It was
2 quite a large area.
3
And did you ever have to maintain the fence,
Q
4 replace any parts of the split rail fence on that side?
5
A
Yes, actually, over the property, some of
6 them were pretty worn. And 80 we had people come in and
7 replace them, uh-huh.
8
Q
Just recently, I had sent you a quick claim
9 deed to sign concerning
A Yes.
Q --this triangle?
A Ye8.
Q And you signed that and sent that back to
me, is that correct?
A
Yes.
Q
Okay.
A
That's correct, yes.
Q
So was it your intent, when you sold the
19 property back in 1990, to convey the entire property,
20 including this triangle?
21
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A
Of course. Yes, indeed, uh-huh.
Q
Did you think at that time that this was all
23 part of your property?
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Absolutely, yes.
MR. ADLER: I have no further questions at
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show where a corner was, is that correct?
A No, that's correct, I believe the whole
circle did not have any pins or stakes or anything.
Q And as I understand from your testimony, the
last time that you lived in the property was back in 1980?
A Correct.
Q And after that, you and your husband were
posted overseas, is that correct?
A Yes.
Q And specifically, you were in Germany,
correct?
A Indeed, yes.
Q And as I understand it, you sold the
property in 1990, is that correct?
A That's correct.
Q And you sold it to who?
A Sue Moyertnan, who had rented from me for
many years.
Q She had been a tenant before she bought the
property, is that correct?
A Yes.
Q Now during the period of time from 1980
until 1990 when you sold the property, as I recall wha,t you
told us before, you visi ted only every two or three years,
visited that property, is that correct?
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A 1~at'n correct,
Q And the last time YOll were there to actually
see the property in person was in 1990, when your son
graduated from law school?
A That's correct.
Q In fact, you were not there at the
settlement when you sold the land to Sue Moyerman, were
you?
A No, that was done through an agent.
Q You were living in Texas at that time, and
everything was done through an agent through the mail and
so forth, correct?
A Correct.
Q So you haven't seen the property in 10
years, is that correct?
A Well, I occasionally go up to visit friends
in Harrisburg, and we sometimes just drive around for old
times sake, but we haven't been in the property or anything
like that.
Q Now you've been testifying about some
photographs today. Do you have the actual original
photographs in front of you or just copies of those
photographs?
A Just copies.
Q
Those are black and white copies, is that
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correct '?
A Yes, that is correct.
Q When you put in the flower bed out front,
did you have the property surveyed to see where the
property line was?
A No,
Q When you put in that flower bed, did you
think that YOLl were on your own property?
A Absolutely,
Q When Mr. Garcia mowed the property, he mowed
up to the fence and to the hedge, do we understand that
correctly'?
A Indeed, that's correct.
Q Now from the hedge out to the street, how
did he mow?
A With a lawn mower, I presume, I guess.
Q I understood you to say earlier that he
mowed a straight line from the hedge out to the street, is
that correct?
A Yes. He mowed so that he came up to the
fence. He trimmed around a little, the weeds around where
the fence post went in and so on. He did all that.
Q When you say, the fence post, YOLl mean the
fence out front?
A Yes.
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Q And are you tell ing
A And also out back. And also out back,
Q I understand. But the fence post you were
just talking about was the fence post out front, correct?
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A
Yes,
6
Q
And did he mow in a straight line from the
7 end of the hedge to that fence post?
8
A
I I m not: sure it was to the end of the hedge
9 or from the middle of the short edge of the bush, but he
10 made it so it was neat and met the end of the post in a
11 straight line.
12
Q
Do you remember, we talked about this in our
13 telephone conversation, you said that he mowed out for a
14 lit bit, and then took a jog, and went out to the street.
15 Do you remember tell illg us that?
16
A
Yeah, he did-- 1 think he did the best he
17 could to make it Ileat from the edge of the bush all the way
18 out to the str0et, as best as I can remember. Our
19 neighbors did not-- go ahead.
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Q
Well, you saw him mow the lawn, did you not?
A
Oh, yes, yes.
Q
And you saw the lawn after he had mowed it,
23 correct?
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Yes, yes. It looked very nice.
Q
So you could see the line that he mowed on,
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is that cor.rect?
A Yes. Yes.
Q Now you told UEl before that when he was
mowing from the hedge to the str.eet, he took a jog, is that
correct?
A He did. Well, I believe, as best dS I can
remember, he mowed up to the hedge we're talking about, the
bushy hedge, and then he went past the end of it, he went
over and came out so that it was very neat and orderly.
Q So he did not mow in a straight line from
the end of the hedge to the street?
A He mowed until he hit-- from the hedge until
he hi t the, as far as I can remember, the wooden fence.
Q
But if he took a jog, he was not going in a
15 straight line, was he?
16 A Well, it's radius. I suppose it's a
17 straight line. I don't know how you would actually define
18 that.
19 Q But you used the term jog when we spoke on
20 the telephone?
21 A Yes, he went around the- - he went around the
22 hedge. He jogged around that. He had to do that because
23 he couldn't-- honestly, it impeded him, so he went around
24 it, and then came out until he hi t the fence. In other
25 words, it was fairly geometrically sort of square.
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no, that was.... no, they did that. We didn't do that,
Q Okay. Now a few minutes ago, you were
talking about the hedge, You described the hedge as being
rather thick?
A Yes,
Q When we talked the other week on the
telephone, you said that the shrubs were tall and skinny,
skinny, not thick?
A Well, it was pretty substantial, but-- and
it was-- it made it more dense now, but, yes, it didn't
flower any. It was just plain dark green. I don't know
what it was, some sort of privet, I don't know what it
was.
Q Did these bushes form a sol id wall or was
there space between the bushes?
A No, they formed a solid wall. You could see
the root area underneath, You could see where the
different bushes were, but when they actually.... they formed
a square or an oblong actually,
Q And the hedge did not go out the whole way
to the street, did it?
A No, no, no, no.
Q How far was it from the front end of the
hedge to the street?
A Oh, gosh, I'm going to have to guess here.
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1 But I would think, 1.0 feet, maybe something like that. I
2 don't know. I guess I could look here and see, but I can't
3 remember. But it was-- it wasn't near the ntreet at all.
4 Obviously, we put in the fence, so you could see as much of
5 it some feet back.
Q And if I recall from the photographs you
were talking about, the photographs show that there is a
gap between the end of the front fence and the hedge, is
that correct?
.'1. That's correct, yes.
Q And that's the way it was when you were
there, is that right?
A That's correct, yes,
Q Okay. Now I believe you testified earlier
that you trimmed the hedge while you lived there?
A Well, I actually didn't do it. My husband
did it.
Q Mr. Garcia did it?
A Yes.
Q When he trimmed, did he trim the side of the
hedge that faced your house?
A Oh, yes.
Q Did he trim the top of the hedge?
A Yes.
Q Did he trim the side of the hedge that faced
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A
No. We just made it neat.
Q
Who took care of tr.imming the far side of
5
the hedge, the side facing the othel" house?
A The tenants there.
Q The people living there? '
A But only rarely.
Q The people living on that side, is that
6
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8
9 correct?
A
Yes, yes.
Q
Now do you l'emember, we talked about
12 trimming the hedge in our telephone conversation the other
13 week. I asked you if you had trimmed the hedge, Do you
L4 remember me asking you that?
15
16
A
Well, my husband did it. I didn't trim it.
Q
Well, I asked if you or Mr. Garcia trimmed
17 the hedge?
18
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A
Yes.
Q
Do you remember telling us at that time
20 that, no, you did not trim the hedge, because you only
21 li ved there a few years, and it was a slow gr'owing hedge.
22 Do you remember telling us that?
23
A
Well, we trimmed-- well, we didn't out it
24 back substantially, but we kept it smooth and even.
25
Q
Let me read to you your testimony from that
40
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r,
A Perhaps, yes,
Q Okay, Was the previoLls test.imony then
incorrect when you said that you didn't trim the bush?
A Well, trimming- - perhaps I misled you. r
1
2
3
4
5 didn't mean to do that. We took care of whatever needed to
6 be done to the hedge. We did it. There was not.. - there
7 was very little work involved.
8 Q When you were given the copies of the
9 photographs that you described for us, were you told when
10 those pictur.es were taken?
11 A No, I have no idea when they were taken. I
12 gather, they were taken fairly recently because the tree
13 has obviously grown. But I don't know when they were
14 taken.
15
Q
And the last time you were actually there, I
16 think we said before, was in 1990, correct?
17 A Yes. Occasionally, we would go down there
18 when I visited friends and just drive around.
19 Q Well, let's take a look for a moment at S-4,
20 the picture marked S-4.
21
22
23
24
25
A 8-4?
Q I'm sorry. The exhibit marked 8-4. I want
to talk about the picture marked 4?
A Okay. I found that.
Q You found that?
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A Yes.
Q In the foreground, that shows a couple of
sections of a wooden fence, is that correct?
A Correct, yes.
Q 1~at's not a straight fence at that point,
is it?
A No, it's not, It looks like it's curving a
little bit, uh-huh.
Q Was that the condition of the fence at the
time you lived there?
A I believe so. I can't remember it weaving
very much, a little bit. I just remember in my mind that
it was fairly straight, because we planted roses all along
there at one time,
Q As you sit here today, can you say with
certainty that the fence shown in that picture is exactly
the same fence that was there while you lived on the
property?
A I'm not sure it's the exact fence, but I'm
pretty sure that it is, unless for some reason the position
of the fence would probably be similar. The post holes and
things are there. I'm sure it would be just very similar
to that there now, I would think.
Q Well, you're surmising?
A Yes, I' Tn surmising. That's right. I can't
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tell you what happened.
Q You haven't lived there for 20 years, so it
is possible that the fence could have been replaced so that
once ..-
A Well, if anything had happened to the fence
when we owned it, we would have repaired it. And, in fact,
we did those things if they needed to be done to the house.
So after Sue bought it, I'm not sure what she did. Before
that, I would have-- normally, she would tell me when
something needed to be done, and then it would be done.
Q But since you sold the property in 1990,
somebody could have repaired that fence, right?
A Oh, yes, of course.
Q They could have replaced parts or all of the
fence, right?
A They could have. They could have done all
sorts of things.
Q When they did that, they may have put the
posts in a different spot than they had been when you were
there, is that also true?
A I have no way of knowing that. I just don't
know what happened there.
Q Right. So you can't say, that's exactly the
same fence and in the same location as it was in 1980?
A All I can say is, it's very si.milar. I
44
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1 remember It looking like this, So as far as I would
2 presume that, in fact, it is j n a very s:lmi lar posi tion
3 when we sold the property,
4 Q And if you look in the background of that
5 picture, it shows the end of a hedge, is that correct?
6 A 1~at's the big hedge, uh-huh.
7 Q Right. And if I understand your testimony,
8 that resembles the hedge that was there whenever you lived
9 there, is that correct?
10 A Well, it may be a little thicker now, but,
11 yes, that was the condition of the hedge.
12 Q But can you say with certainty that that is
13 ex~ctly the same hedge that was there when you lived there
14 in 1978 and 1980?
15 A Well, I would say with certainty until 1990
16 when we sold the property, because if Sue had it removed,
17 she would certainly have told us, and we would have paid
18 for all that sort of thing, but she didn't tell us.
19 Q But after 1990, when you no longer owned the
20 property, somebody could have removed all or part of that
21 hedge, could they not?
22 A I think it's most unlikely. The hedge is
23 quite substantial, It must have been there a long, long
24 time because it's very thick and dense now, And I would--
25 it. seems to me that H. would probably be the same hedge,
45
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1 but I'm not a horticulturist, so I don't really know.
2 Q It is possible that part of the lwdge may
3 have died and somebody replaced it?
4 A I think it's very unlikely. It was a very
5 sturdy hedge. And in Pennsylvania, you get enough rain to
6 sustain these things. I think just - - they did very' well.
7 I would think the hedge was right next door. I don I t think
8 there would be any difficulty there, There was no disease
9 cr anything like that when we were there.
10 Q But-- and you haven't owned the property
11 since 1990, isn't that true?
12
A
Yes.
13 Q Okay. Now just so I understand, you thought
14 that the line marked by the fence and the hedge was your
15 property line, is that correct?
16 A (Witness nodded head affirmatively.)
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25
Q
Would you verbalize your answer, please?
Yes or no?
A 01'1, I'm sorry. Yes. Yes, I did.
Q And when you put the flower bed out front,
you thought you were putting that on your property, is that
correct?
A Absolutely. Absolutely.
Q And when Mr. Garcia was mowing the lawn, and
he mowed the area that you talked about, you thought he was
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mowing your property, is that right?
A Yes,
Q You and Mr. Garcia didn't intend to take
part of somebody else's property, did you?
A No. The way that the yard was landscaped,
it looked like a natural property line. We just presumed
that it was, in fact, part of it. We took care of it. No
one ever said anything about it. We maintained it f-:>r snow
and all that sort of thing. We did everything for it. We
just presumed it was ours. I still believe it's ours
actually, was ours. I certainly wouldn't have encroached
on anybody else's property.
Q You thought it was the property that you had
bought from Mr. and Mrs. Birney, isn't that correct?
A Absolutely, yes.
Q Your deed says you bought lot number 167
A Well, I don't have my deed anymore, but I'm
sure that's what it says.
Q And that's what you sold to Sue Moyerman,
what you bought from Mr. Birney, correct?
A Yes, yes.
Q When you were selling property to Sue
Moyerman, were you intending to sell property that you did
not own?
A Absolutely not. No, I wouldn't dream of it.
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pole, and it WafJ'. ~ where, if it was exactly tlJere, but I
remember the ut:l1ity linefJ were above ground, so I presume
it's the same one. I don't know, of course, now, but there
were utility poles, yes.
Q And just t.o restate one more time. You
always thought this triangle was a part of your property,
is that correct?
A Absolutely, yes. Absolutely.
Q And?
A There was never any question about it. We
just thought, there it was.
Q So when you conveyed the property, you
thought you were conveying this triangle as well?
A Absolutely, yes.
MR. ADLER: I have no further questions,
RECROSS EXAMINATION
BY MR. McCAl,EB:
Q f\olrs. Garcia, take a look for a moment at
photograph number 9?
A Yes.
Q In S-4?
A Yes. I have it.
Q In the foreground, that shows the flower bed
and the fence out at the front, is that correct?
A Yes.
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21 grass.
1'",,'0'1
Q And:lt showEI the dogwood tree, doesn't it?
A YefJ.
Q Now beh.ind tho dogwood tree, it shows some
lawn area, is that correct?
A Yes.
Q And then there's a driveway that leads up to
the house that's shown there, is that correct?
A Yes, that's right.
Q Now I Wint to direct your attent.ion to the
lawn area in between the dogwood tree and the driveway?
A Yes.
Q When you were living there, were there any
shrubs planted .in that sect.ion of the lawn?
A No.
Q The lawn then looks as it does in this
Photograph?
A
yes.
To the best of my recollection, it does,
Q
A
Thank you.
We didn't plant anything there. It was just
22
23
24
25 BY MR, ADLER:
MR. MCCALEB: Thank you. That's alII have.
THE COURT: Mr. Adler.
REDIRECT EXAf'.lINATION
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Q Do YOll have any direct knowled<Je an t.o how
t.his tdiln<)le welEl llIa.inUllned bOt.wE!On 1.980 and 1990','
A It: wan maint.ained by Sue Moyel'lTlan, I don't
know if she had a service that. came .in and cut. grass or.. _ I
believe we paid for the ferti.1izer. I Can I t remember
actually, but. I'm sure it was maintained by her, She
wouldn't neglect it or anything like that. she Was quite
particular.
Q So when you went back to see the property
periodically, I mean, this area was maintained like the
rest of the lawn?
A Yes. Oh, yes. Yes, indeed.
MR, ADLER: Thank you. I have nothing
further.
RECROSS EXAMINATION
BY MR. McCALEB:
Q But you didn't actually see people mowing
that lawn between 1.980 and 1990, did yoU?
A No, but when I went to visit her from time
to time, the lawn was very neat and well kept. It was
obviously not neglected. So she either had it mowed or
mowed it herself,
Q Well, somebody mowed the lawn. We know
somebody mowed the lawn, but. we don't know who mowed the
lawn, do we?
51.
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5
A
YefJ.
Q
Okay.
THE COURT: Any other questions by
counsel?
RECROSS EXAMINATION
6 BY MR. McCALEB:
7 Q Just for clarific~tion, I'm speaking now
8 about. the fence out front where the dogwood tree is. That
A Yes,
Q There was u - -
A It was an L-shaped.
Q It was an L-shaped. There was a side that
went parallel to the street?
A
Q
A
Q
the street?
A
Q
A
Q
54
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f"-<<
1 very mllch [or YOllr test1.mony today. We really apprec1.ate
2 you tak1.ng the t1.me. And you are excu~1ed. '!'hank you.
3
4
5
6
7 (Whereupon, the testimony of BARBARA C.
8 GARCIA via video transmission concluded.)
9 THE COURT: The next teleconference call 1.s,
10 I think, to another locat1.on, if I'm not mistaken. So I
11 think we can eliminate this connection now. Thank you very
12 much. I should let the record indicate that Joyce Miller
13 from the prothonotary's office has also been helping with
14 the teleconferencing equipment. Mr. Adler, do you want a
15 brief recess or did you want to go straight ahead?
16 MR, ADLER: I think we can go right back to
17 Ms. Sicchitano.
18 THE COURT: Ms, Sicchitano, you are still
19 under oath. Mr. Adler.
20 (Whereupon, GAYLE SICCHITANO resumed the
21 stand and testimony continued,)
22 DIRECT EXAMINATION (CONTINUED)
23 BY MR. ADLER:
24 Q I'm just going to hand you our eight
25 exhibits so we can refer to them. Let's just look at
THE WITNESS: '!'hank you v(~ ry much,
MR. AOl.,ER: Thank YOll very much, Ms. Garcia.
MR, McCALEB: Thank you,
THE WITNESS: Yes, right-o, yes,
56
I~"
1 gxhibit S..l fot' a whi.le, This :I.s the deed froll\ the estate
2 of Sue Moyerov:m to yoursel f'7
3
Uh-huh.
A
4
For 818 Sycamore Circle?
Q
5
A
Correct.
6
And are you aware of a problem with the
Q
7 beginning point on that deed?
8
Well, I wasn't until '97. The deed states
A
9 that the property line begins at 90,68 feet from a point on
10 the Conodoguinet Drive, whi.ch more or less approximates
11 just around where the telephone-- or the electric pole is.
12 It's about in that area.
13
14
15
Q
80 looking at Exhibit 8-~ --
A
Uh-huh.
Q
--what letter point would that be, as
16 closely as you can tell?
17
18
19
20
21
22
23
24
25
A
Point A, as far as I can tell,
Q
,
But looking-- again, looking at 8-2, that is
a point 011 lot 15?
A Yes.
Q But in your deed, that's the begi.nning
point?
A My deed is the beginning of my property,
right.
Q
Now let's look at 8-27
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Okay,
THE: COURT: The deed we were j Llst looking
2
3 at --
4 MR, ADl,ER: That was S'"l. That was the deed
5 from the estate of Sue Moyerman to Gayle Sicchitano.
6 THE COURT: I see. Okay.
7 BY MR. ADLER:
Q Just to go through 8-2 in more detail, whidl
lot is your lot?
A Sixteen.
Q And the Hoffman lot?
A Fifteen.
Q And the area in question is shown by what
coordinates?
A A, B, and G.
Q Now you moved into the property when?
A I began living there in 1990, more or less.
I was there most of the time.
Q Most of the time being what?
A About 90 percent of the time,
Q All right. So you were aware of the general
maintenance and care of the entire property?
A Yes.
Q Let's look at the area in question. That's
area A, B, G, I think we'll look at the survey, Exhibit
58
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9
10 A Uh-huh.
11 Q --why is that a. tilled planting area?
12 A That tilled planting area is a piece of
13 ground that had been under the fence befol'e it was removed.
14 And in order to make it easier to maintain the grass along
15 there, I put some grass killer on the grass and had the
16 area mulched so that it was not a problem to trim around it
17 when the grass was cut. And when the fence was removed,
18 the area still looks somewhat bare. It's overgrown in
l-~'
r"',
1 8-3. Looking ut 8,,3, you flee what's labelfJd as high hedgo.
2
Yes.
Is that the approximate location of the
A
Q
hedge as it is today?
A Yes.
Q As closely
A As close as I can tell, right.
Q Now the till planting area going back to the
rear of the property - -
19 spots, but it's mainly sort of bare.
20 Q So it wasn't really a tilled planting area,
21 it was just the area under the old fence?
22 A It was the area under the old fence, and you
23 can see it in the pictures.
24 Q Going back to that flower bed, how long has
25 that flower bed been there, do you know?
59
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1 MR. McCAL.EB: WhlCh flower bed are you
2 referring to?
3
4
5
6
7
MR. ADLER: At the rear of the property.
THE: WITNESS: That's been there a while.
THE: COURT: I guess I'm a little confused.
The fence that was removed, when did that happen?
THE: WITNESS: In October of '98.
8 THE: COURT: October of '98,
9 THE WITNESS: October 17th, 1998.
10 THE COURT: And this is a fence different
11 from the one shown in the pictures?
12 THE WITNESS: The fence shown in the
13 pictures is the fence that was removed. The fence in the
14 pictures is the fence that was repaired by me after the
15 flood in '96.
16 THE COURT: Now is that the fence that was
17 around the dogwood tree?
18
THE WITNESS: No, the fence around t.he
19 dogwood tree is out. front. 'I'his is the fence running from
20 the hedge to this-- there's a tree on the other side of
21 this,
22 THE COURT: Oh, I see. There's two areas
23 referred to as tilled planting area?
24 THE WITNESS: No. I thought we were looking
25 at the back.
60
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3 THE COURT I okilY. So you're talking about
4 the one in the back of the property?
5 THE WITNESS: Yes, there' 8 a stretch rJght
6 here where the fence used to be.
7 THE COURT': Okay.
8 BY MR. ADLER:
9 Q So whose flower bed- - now we're right next
10 tb lot 14?
11 A Right.
12
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2
MR. ADLER: I'm sorry. I didn't realize
that.
Q Whose flower bed is that flower bed?
A I assume, it's Claire's-- I mean, Mrs,
Hoffman 's. That area has trees and bushes, ilnd it's kind
of-~ there's clutter back there of things. On the other
side of the fence is an area that is covered over with
ground ivy and some forsythias and some other bushes that
go along the fence back there.
Q Okay. Now let's
THE COURT: Was the removal of the fence, is
that what started the whole problem?
THE WITNESS: No,
23 THE COURT: No , Okay.
24 BY MR. ADLER:
25 Q Let's go to the f~ont of the property along
61
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8yo",,0'0 Cho 10 who '0 tho,." 'noth" fl Ower bod 7
A Uh-huh.
Q Was thClt the flOwer bed there wh~1n you
started to OCCUpy the property in 1990?
A It w" thero, "nd 1 'dded to it a little
Pieoe botwoen tho [en" 'nd the tolephone POle be"o", it
W'e Ve,y di[[ioo1t to ,"OW it 'gain. So 1 joet extendod the
moloh o"'r to the Pole. And the [enoe ~. a l'ttle
distance from the Pole there.
Q Okay. And then the,.,. a1.0 a h,ndw"tte"
labeled trUck on there, What Was that?
A We". Me. and 're. "Oftman POCked thoh
t'ook the'e beg'nning 'n Aogo.t o[ ." [0, a while.
Q After the diSpute came to light?
A Right.
Q All right. We're going to look at the
original Pictures __
THE COURT: This is the item that's been
marked as an eXhibit?
THE WITNESS: This is S-4.
THE COURT: That's the original exhibit?
MR. ADLER: Yes.
THE COURT: Okay.
25
BY MR. ADLER:
Q
Let's just go through these Pictures and
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explain each one starting with picture 2,
A Picture 2 is-- picture 2 is a picture of the
truck sitting on the property. The survey stakes are
visible. T~e fence is still there. And the bed, you can
see a little bit behind the back wheel of the truck. And
you can see where I've just mowed, and that's the little
jog where you come up, And then you jog around the bush,
and then you go straight out, and you can see I mowed right
up to the fence post.
Q So let's go back to when the dispute really
came to light, That was around what time?
A That was July 27th, 1997.
Q Ninety-seven. And what happened to
precipitate
THE COURT: Wait. July 25, 1995 or 19977
THE WITNESS: Ninety-seven.
THE COURT: 1997.
BY MR. ADLER:
Q What happened to precipitate that?
A Well, part of the problem was when Sue was
alive, Claire had asked .if she could plant some flowers in
the bed where one of these bushes that had originally been
in this line of bushes was removed due to snow damage.
Q When you say, the bed, you're referring to
the fivB foot hedge that Mrs. Garcia, that's the __
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A Right.
Q That's the long hedge in the middle?
A There were other bushes there. These
pictures don I t show the three that were removed. But one
of them really had been heavily damaged by snow. And, you
know, Mrs. Hof fman suggested to Mrs, Moyerman that they
take it out, and that they would-- they would take it out,
because they had a truck, and they could pull the roots and
do all that, and Sue said, fine, if you want to take it
out, that's okay.
Q So Mrs, Hoffman asked Mrs. Moyerman for
permission to do all this?
A Yes, and also then she wanted to use that
area as a flower bed for her flowers. And Sue said, fine,
because Sue really was not a gardener. So it was okay with
her.
Q When was this?
A This was-- well, it must have beell around
'93, '94ish, because Sue was still alive. And I forget
which winter was really so bad, but the - - that end bush
really took a beating from the snow. And it looked pretty
sad. So out it came. And at that point, you know,
everything was fine. Well, Sue died.
Q When was that?
A June of 1995. And at that point, I had put
64
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1 BY MR. ADLER:
2 Q When was this?
3 A It must have been in July of '97. And I
4 asked him to carefully remove the bushes and to put them in
5 plastic bags with water and just set them in her yard,
6 which he did,
7 Q Now when he was trimming that bush, was he
8 trimming all along that five foot hedge on both sides?
9
10
11
12
13
14 seemed to produce a reaction that was-- and the question
15 was really, did I know where the line was? And I thought I
16 knew where the line was, because I had a fence and a hedge
17 row and then a piece of fence out at the end of the
18 property. So I assumed that if you sighted along the
19 fence, from fence to fence, that that would be the property
20 line, and that it was pretty obvious, if you looked down
21 that line, where it was.
22 But Mrs. Hoffman didn't agree with me, so
23 she had a survey done. And the survey was quite a surprise
24 to everybody, I carne home from work, and this stake is in
25 my yard, and Mrs. Hoffman --
A He trimmed both sides.
Q He trimmed both sides, your son?
A Yes, right.
Q Okay.
A And that seemed to be a trigger. Tha t
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Q When you say, this stake, just please refer
to the pictur'e?
A I n picture number 9, between the fence and
the dog, there is a survey stake, that is now a little
weathered by the way, but i. t was there. And my first
reaction was, you know, fine. But my deed says that my
property starts close to the pole, So, obviously, I have a
problem,
Q When you say, close to the pole, can you
refer to what picture?
A Okay. Number 9 again. 1 assumed that this
fence was on my property. So when this came in and said,
no, this is where the property line is, I said, no, I don't
think so, because my deed, which I had received from the
estate, idAntif ied the beginning of my property. You can
see in picture number 9 a little blue flag and piece of
wire just to the right. Can you see it there?
T!1E COURT: I can, but why do you say that
your deed refers to the telephone pole?
THE WITNESS: If you look at my deed, it
says, the property begins at a point located 90.60 feet in
a westerly direction along said line from the westerly line
of Conodoguinet Drive. That's where it says it starts.
THE COURT: But that doesn't --
THE WITNESS: And that is that point.
68
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1 THE COURT: How- - why do you say that.?
2 THE WITNESS: Because the surveyors put that
3 marker th0re. So in that area is where I believed the
4 property started, if you read my deed. So I was surprised,
5 but I thought., well, hey, if that's where it is, t.hat's
6 where it is. So that began the dispute, because I
7 consulted a lawyer about, what I do about my deed, which
8 obviously, because according to the Hoffmans' deed, mine
9 was incorrect.
10 So when I talked to the lawyer, he said,
11 well, how long has it been there? I said, probably a long,
12 long time. And that's when we discussed the possibility
13 of-- that it had been wrong for a very long time, and
14 perhaps as a result, it might be right. But that's how the
15 whole thing came about.
16 BY MR. ADLER:
17 Q Let's me just turn your attention to S..2 for
18 a second, That's the copy of the survey?
19 A Right.
20 Q If we're looking at lot 15, where do you see
21 that 90.68 feet?
22 A It's point A. It's right. there, point A,
23 because you can see the 19.92 arc from point A to B is
24 marked. So 90.68 is point A.
25
THE COURT: Well, we need a surveyor to tell
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us that, wouldn't we?
MR. ADLER:
THE COURT:
,......."
Well, this is
It's hard for me to look at this
and say, that's right or wrong.
MR. ADLER: As to whether that's exactly
right there, that's correct.
THE WITNESS: Yeah, it's-- this little thing
here, I assume, was put in by the surveyors.
See, we don't know that.
Right,
You're assuming that flag is the
THE COURT:
THE WITNESS:
THE COURT:
right point for starting - .
THE WITNESS:
THE COURT:
testimony on that.
MR. McCALEB:
It's close.
Well, I think I need expert
Your Honor, I wonder if I
might look at the original photograph for a second. I
can't see the flag they're talking about on my copy.
THE WITNESS: If you look right by the post,
Mr. McCaleb, you can see the little blue - -
MR. McCALEB: Thank you.
THE WITNESS: - - the little blue flag.
MR. ADLER: Okay. Let's go through it.
THE WITNESS: You can see it in picture 10,
too.
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THE WITNESS: The dogwood was-- this fence
;)
waf) removed.
THE COURT: But that's the fence we're
talking about, the dogwood tree fence, right?
THE WITNESS:
THE COURT:
They also removed this.
Well-- oh. See, I'm confused
about these fences. Is there a fence around the dogwood
tree and a fence on what was thought to be the property
line?
THE WITNESS: Right. There is this split
rail fence off the front of the property. This is the
dogwood tree. And this is what Mrs. Garcia installed when
she planted the tree.
THE COURT: All right. You're referring to
picture 1 on S-4?
THE WITNESS: Picture 9.
THE COURT: picture 9 on S-4?
THE WITNESS: Uh-huh. The fence at the back
of the property is in picture 4 and picture 12 and picture
10.
THE COURT: That's the fence that was
removed?
THE WITNESS: This fence has also been
removed,
THE COURT: Well, which fence were you just
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1 talking about t:hat was removed by t.he Hoffmans on Oct.ober
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17, 1998?
THE WIlINESS: All of it.
4 THE: COURT: The dogwood tree fence and the
5 fence in the back?
THE: WI'rNESS: Right.
THE COURT: Okay. Got it.
BY MR. ADLER:
Q So you continued to mow and maintain up to
that fence line uncil they removed the dogwood fence and
the fence going back to the rear of the property'?
A Right, right. Well, it was not consistently
mowing because it depended who got there first. If they
got there first, then they mowed it, If I got there first,
I mowed it. You know, that sort of thing,
Q Let's look at picture 4 of S.4?
A Uh-huh.
Q Now this fence is from the rear of your
property, and if you are looking at
A That's from point G, I believe.
Q Point G on Exhibit S-2?
A Uh-huh, looking out toward A.
Q Okay. Going up to the hedge in question?
A Uh-huh.
Q
That was there when you moved into the
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1 property in 19907
2
Yes, it was.
A
3
Q
And that's pretty much-- that was the
4 location of that fence back then?
5
A
Well, it seems to have traveled some. It
6 got hit pretty hard in the flood of '96. And I had it
"/ repaired. And it was replaced into the same post holes,
8 but ground moves. And I think it's been there long
9 enough- - just kind of like the bushes. The bushes have
10 sort of formed themselves into a little curb, I think the
11 ground moves there a little bit. But that's where it came
12 out, so that's where it went back in.
13
Q
The fence posts went back into the same post
14 holes?
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A
The same holes, right.
Q
So when you were there in-- I mean, you
17 maintained that section of the fence in picture 4?
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A
Yes. As a matter of fact, those were the
new rails that I had bought after the flood.
I
~
)
I
Q Okay.
A You can see them.
Q
So you replaced those in '96?
i
,
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I
,
A
Yes.
Q
Now that area in picture 4 on 8-4 to the
right of the fence
I,
,'f:\
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planting area on the survey that is, in fact, the area that
used to be under the fence.
BY MR. ADLER:
Q Now after the flood of '96 --
A Right,
Q --that area didn't change. You still saw
the grass on the other side?
A Yes. Everything was as it was.
Q Let's go to picture 9?
A Vh-huh.
Q Now that's the dogwood bed?
A Right.
Q Did you have to replace that fence in '96?
A In '96, I think we just had to put it back
together. But the plow had broken one or two of these
rails at some point prior to that when Sue was still alive.
And I know, at that point George went, Mr. Hoffman went and
purchased a couple of rails and helped her replace those.
But I believe she paid for the rails.
Q So between 1990 and up to the time when the
Hoffmans tried to take it back, what were your maintenance
patterns for this area around the dogwood?
A I maintained the area and had it fertilized
and weeded when I got around to it. I also planted some
plants in this bed. These two azaleas and these three
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(~"i
1 hostas,
2 Q You're pointing to picture 97
3 A Picture 9. I planted those. And there are
4 also tul.ip bulbs, and there's a rose bush hel-e that was
5 there for as long as anybody can remember. And there are
6 some daffodils that come up.
7 Q When you say you extended the bed slightly,
8 was that toward the telephone pole in picture 97
9 A Right, extended the mulch from the fence to
10 the telephone pole, because that's really a tough spot to
11 get with Ii mower. 80 I just solved the problem, I just
12 put the mulch in,
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Q So you mowed it on a pedodic-,- not the bed,
but you mowed that area of grass regularly in the summer?
A Right. And if I didn't, I hired someone to
do it.
Q Okay. Let's go to picture 12, That's the
hedge?
A That's the hedge.
Q Now how did you maintain that hedge from
1990 to date?
A From 1990 to 1995. Actually, in 1990, there
were three more pieces to that hedge. There were three
other bushes that are no longer there. The first one was
damaged by snow, and the other two that are now replaced
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with arborvitaes that I planted were damaged in the flood
of '96.
So at that point I hired someone to come in
and remove the bushes and to plant the arborvitae in there
instead. So this hedge is not exactly as it was in 1990,
but it's in the same place, and it pretty much looks--
well, it goes up and down. Mrs. Moyerman wanted it to grow
high, so when she trimmed it or had someone else trim it,
she would say, don't take too much off the top, just do the
sides. And often, both sides of the hedge were trimmed.
Q By?
A By whoever was trimming the hedge, from us
or our employ,
Q Okay,
A And I recall Mrs. Hoffman asking if they
could trim their side. At one point, always willing to let
somebody else do the work, I guess, I said, fine. And then
she had mentioned they were going to trim it again, and I
had requested that she trim it so that the bottom of the
hedge was wider than the top so the light could get to it
and it could fill in. And then at that point, other things
happened and they've been trimming it.
Q Okay, So from 1990 to the time this dispute
blew up, you maintained the hedge?
A And the beds.
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Q And thB beds?
A Had the beds mulched. As a matter of fact,
even after they extended the bed on their side, I often
asked the fella that was doing the mulching just to mulch
the whole bed, not to just stop on the line, but to do the
whole thing.
Q And so as far as mowing patterns, we'll look
at picture 10 of 8..4. Can you describe the mowing line?
A Pretty much from the farthest fence post out
to the straight line that would go right baok along a line
sighted to tllE: back, the back part of the fence, which
would go on this side.
Q And then look at picture 12, going from the
other side of the fence to the back of the property, your
mowing pattern was on the right side of the fence?
A Yes, where there's grass.
Q So you stopped maintaining the-- this
triangle in dispute, was it October '98, is that what you
said?
A Right, October 17th.
Q And then you filed this statement of adverse
possession labeled Exhibit 8-8?
A In February.
Q When?
A Of '98.
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Q
So thi~ was tiled --
2
A
This was filed before.
3
Q
Before you Eltopped maintaining it?
4
Right, d ght .
A
5
THE COURT: Well, the t.estimony was, she
6 stopped maintaining it October 1997.
"I
THE WI'rNESS: Ninety-eight.
8
THE COURT: Oh, '98.
9
THE WITNESS: And the form was filed in
10 February of '98.
11
THE COURT: Okay.
12
THE WITNESS: But the fence was there until
13 October '98.
14 BY MR. ADLER:
15
Let's just go back to S-2 for a minute. I
Q
16 just want to help locate the things we're talking about.
17 If you were to locate the five-foot hedge on S-2, where
18 would you put that approximately?
19
I would put it on a 1 ine between A and G to
A
20 the lot 16 side, right sort of where the numbers 131.82 are
21 located.
22
And the dogwood fence that we've been
Q
23 referring to would be where?
24
It's out at point A, a little bit toward
A
25 point G,
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i Q And the fenct' going from the rear of the
2 hedge to the back of the property would be approximately
.3 whero'?
4 A It would be along lIne A, G, and it would
5 start where the hedge stopped and continued back to po.i.nt
6 G, 80 it's pretty well described on 8..3.
7 MR. ADLER: I have no further questions for
8 Mrs. Sicchitano at this time.
THE COURT: Why don't we take a five minute
recess, and then we'll resume until 12:00.
(Whereupon, a recess was taken at 11:18 a.m.
and proceedings reconvened at 11:28 a.m.)
THE COURT: Let's see. Ms. Sicchitano, you
are still testifying, Mr, Adler,
MR. ADLER: Yeah, I rested.
THE COURT: Okay. You didn't rest, bu t you
turned over the witness.
MR. ADLER: Right. Okay.
MR. McCALEB: I was going to say, I didn't
think I heard that correctly,
THE COURT: Too good to be true.
MR. ADl,ER: I'm rest ing.
CROSS EXAMINATION
BY MR. McCAl,EB:
Q Ms. 8icchi tano, let me just put in '::rol1t of
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you, if' I can, what has been marked as Hoffman Exhibit 4.
It's a larger version of t:h~, survey, I think .i. t's easier
for all of us to refer to it, And just so I understand,
we've all agreed ~hat the survey shows the actual property
line between lot 15 and lot 1.6 as being the line marked by
point G and point 8, is that correct?
A That's the survey line.
Q That's the survey property line. That's
what the Hoffman deed says the property line should be, is
that correct?
A That's my understanding.
Q Now you're not disputing the accuracy of
this survey, are you?
A Huh-uh.
Q Did you have a survey of the property done
after you saw this survey?
A No.
Q Did you have a survey done when you
purchased the property in 1. 9- - or when you got the deed for
the property in 1995?
A I didn't see any need to do a survey at that
point.
Q Have you ever had a survey of the property
done?
A
No.
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Have you ever seen a survey of the property
Q
5
other than what is in front of you this morning?
A No.
Q Your deed refers to the subdivision plan.
believe it refers to the plan of the Conodoguinet plan of
Country Club Hills, correct?
A I suspect that's correct.
Q Well, you have S-1 in front of you there,
I
correct?
A Yes.
Q Okay.
A Yes, that's there.
Q Did you see a copy of that subdivision plan
in 1995 when you got the deed from Sue Moyerman's estate?
A No, I did not.
o You have seen that subdivision plan before
today, have you not?
A Only after the survey was done by the
Hoffmans.
Q After the survey was done?
A Correct.
o You didn't see the survey before the
surveyor was there?
A
Q
No.
And I think we all agree that the survey was
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1 done in July of 1997, is that correct?
2
That's correct.
A
3
Do you remember?
Q
4
THE COURT: I'm Barry, Whllt flIll'Vl!lY was t~one
5 in July of 1997?
6
MR. McCALEB: '['I\t\t' fI tho [I\1l'V('Y tllilt I fJ
7 marked 8-3 and Hoffman Exhibit 4.
8
THE COURT, It glvolI iI d"l.n of' fIr)J'il 'I,
9 1998.
MR. ~lcCAI.,ml, WIlli, jUrll to f.lxplllln that for
11 the record, I'll cover it III OUI.' tll!)I!moIlY, tho llurveyor
12 was out at the property, did tho IIIn<HIUI'OI1l01lI,EI, ntaked th~
13 corners on one time.
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1'HE COURT: I oeo.
MR. McCALEB: 'I'hot'l did the drawing lClter.
THE COURT, I see,
MR. McCALEB: 80 it's all t.he same survey,
although the drawing shows conditiollfl as of AprH '98.
THE COURT: I see.
MR. McCALEB, Othol' thilll mco,H1urtJmonts.
21 Measurements were done. Again, jUflt: rol.' pUl'pOBOB of
22 clarification, Judge, that mElY holp l,xplllJll, you E1aw in the
23 photographs the fence waB l'lloI'o who 11 tho olll'Vey was done.
24 In the drawing of the fIlll'VPY, you dnn 'I, II~'(' tho fence,
25 because in betWOlJI1
11'1
""
"
1 THE COURT: I see.
2 MR. McCALEB: - - it moved.
3 BY MR. McCALEB:
4 Q Which brings me to another point, Ms.
5 Sicchitano. As I recall from your testimony, the fence was
6 taken down?
7
A
No, the f eflce was never taken down. Oh,
8 which one? I'm sorry. I interrupted you.
9 Q Okay. Let me clarify Lhat. The split rail
10 fence, both the section out front at the flower bed in
11 front and the section at the back behind the hedge, both of
12 those sections were removed. They're not there anymore,
13 are they?
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A Correct.
Q That was done by Mr. and Mrs. Hoffman?
A Yes.
Q Or somebody employed by them, correct?
A I only saw them,
Q Okay. You actually saw them do it?
A Yes, I did.
Q Take the things down. Now I think you have
testified that that was done October 17, 1998?
A
Uh-huh.
Q
How do you know the precise date that was
25 done?
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^ I L IH'lOI1l0d llko a lonej l:i 1110.
Q Did YOll Illiu'k thal down 011 YOUI:' calendar when
they stopped parkln',1 tho tl:'lwk thtH',]'?
A When thoy Btopp€!d parking the truck? No,
only when they put it thm:e.
o Were they still parking the truck there when
they put. the yellow l"Ope up'?
A I think that-- I think they probably put the
yellow rope up after they took the truck down. I meant
t.hey moved the truck back to the street.
o Are you telling us that, after they put the
rope up/ they didn't park the truck there anymore?
A I think that's probably correct, yes.
o Did they put the rope up before or after
they took down the two sections of the split rail fencer
A Before.
o Put the rope up --
A Long before.
o Put the rope up before they took down the
fence?
A They didn't take the fence down until they
rototilled.
Q And did they rototill the same day that they
took the fence down?
A
Y8S.
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13 A Where it says, tilled planting area. This
14 tilled planting area back here, I did not see them
15 rototill. And it doesn't look rototilled.
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Q And you're telling us that was?
A They rototilled firat, and then they took
the fence down.
Q They rototilled with the fence in place?
A Yes, because t.he fence wasn I t where they
were rototilling, so-- and they didn't rototill back where
the other fence was because that was--
Q They only rototilled out front, is that what
you're aaying?
A Yes, the only place that's rototilled is
from point B to right here.
Q And you're referring to?
Q Just for ths benefit of the record noW/
we're referring to Hoffman Exhibit No.4. And you pointed
out an area marked on that plan that says/ tilled planting
area, which extends from approximately a third to halfway
back of the hedge out to sycamore Circlet is that correct?
A Uh-huh.
Q
And that'S the area that was rototilled when
23 they removed the split rail fence?
24
25
A
Q
correct.
Now there's a second area that says, tilled
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planting area, and that's from the back of the hedge?
A That's my fence,
Q Up approximately to point G?
A Uh-huh.
Q And you're saying, you did not see them
rototill that?
A
No, that area is where the fence was.
Q Is that the same area you showed us in the
photographs that was marked with mulch?
A Right, correct,
Q Now you were living in the property on
Sycamore Circle when Mr. and Mrs. Hoffman bought their
property in 1992/ is that correct?
A
That's correct.
Q And it was-- you were living t.here with Sue
Moyerman at the timet is that correct?
A That's correct.
Q And she owned the property then?
A She bought it in 1990.
Q She bought-- you were not the owner of the
property in '92?
A That's correct.
Q
You became the owner in '95/ after. Sue
Moyerman died, is that correct?
A That is correct.
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C\.
Q
And in her will, she devised the house to
you?
A
Q.
Correct.
And then her executors executed a deed to
you/ and that's what we have as --
A August.
Q As S-l?
A Uh-huh.
Q Do you have S-1 in front of you?
A I do.
Q I want to talk a little bit about that deed,
if we could. Let's go down to the description in the deed.
It starts out, beginning at a point on the northerly line
of Sycamore Circle, said point being located 90.68 feet in
a westerly direction along said line from the westerly line
of Conodoguinet Drive. Do you see where I'm reading from?
A Yes.
Q Now before this survey was done, did you go
out to that particular area around the telephone pole and
measure the distance from Conodoguinet Drive, measure out
90.68 feet?
A
Q
that blue flag
A
No, I never measured it.
And there was no marker there at that timet
was not there?
No, what was there was the fence and the
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1 bed.
2 Q Okay, 1~o blue riag that you pointed out in
3 the photographs was put there by the surveyors?
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A Correct,
Q And that was again, .July of ' 977
A Correct.
Q And that blue flag is to represent what's
shown on the survey as point A?
A I assumed that's what it was.
Q Okay.
A I don't know for sure.
Q Now let's go to the second course of that
deed. It says, thence westwardly-- excuse me a second.
For purposes of this discussion. let me refer you to what'a
been marked as Hoffman Exhibit 3, which is the subdivision
plan. Do we agree on that?
A That's what it looks like.
Q Well, it's the same-- virtually the same
thing that you've been showing?
A Right.
Q In facto if you want to refer to 8-2/ that's
fine with me,
A That will be good.
Q Again, starting with the second call, it
says/ thence westwardly along said li.ne of Sycamore Circle,
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1 by a curve to tho d9ht huvi 119 u radiLw of: 4 G, 24 feet, an
2 arc distance of 1.3,98 feet to a po.! nt. I I' YOll look at the
3 survey, is that the call that goes from point 1\ to poInt B?
4 A No, point A to point B is missing in the
5 deed.
6
Q
Well, on the survey, it says
7 A The arc that they're talking about, which is
8 13.98/ goes from B to C.
9 Q B to C/ okay. Then the next call --
10 THE COURT: I'm sorry. I'm confused. I
11 don't know where Cis.
12 MR. McCALEB: I'm sorry, You, Honor. Now
13 we're back on the subdivision plan which has-- if you refer
14 to" -
15 THE COURT: What exhibit are you referring
16
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to?
MR. McCALEB:
This one, the subdivision
plan.
THE COURT:
MR. McCALEB:
THE COURT:
That's exhibit what?
Hoffman 3.
Hoffman 3. Has that been
22 identified? I don't think it has.
23 MR. McCALEB: Yes, I gave you a copy of it.
24 Well, we can use this one.
25 THE COURT: Well, I want to use the exhibits
94
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1 we're actually using here,
2 MR. McCALEB, That's your copy, Judge.
3 That's your copy.
4 THE COURT: I didn't: write any Hoffman
5 exhibits down as having been identified yet other than, I
6 think -
7 MR. McCALEB: We identif ied four exhibi ts at
8 the very beginning.
9 THE COURT: I'm trying to make a record, and
10 I need to have a voice for the stenographer to say exactly
11 what we're referring to.
12 MR, McCALEB: We are now referring to the
13 subdivision plant which has been marked as Hoffman Exhibit
14 3.
15 THE COURT: Okay. And that's the
16 subdivision plan of?
17 MR. McCALEB: Conodoguinet Plan of Country
18 Club Hills. It's the subdivision plan that's referred to
19 in the deeds.
20 THE COURT: Okay. This is fine. I can see
21 fine from here.
22 BY MR, McCALEB:
23 Q Okay. Referring to your 8-2 now, which is
24 another copy of the subdivision plan --
25
A
Yes,
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Q Let' 8 go to the third call. Well / let me
just see if we can expedite this. The third call calls for
an arced distance of ~5.44 feetr
A C to D,
Q That's C to D?
A Correct.
Q The next one is a straight. line that calls
for a distance of 119.55 feet, and that's D to E?
A Correct,
Q And then following that is a distance of
142.53 feet, and that's E to F?
A Yes.
Q And then we go from that to a distance of
87.22 feet, and that would be F to G/ is that correct?
A That's correct.
Q And then return to the exact language of the
deed. It says, thence by the westerly line of lot number
15 on said plant south 14 degrees 42 minutes west, 131.82
feet to th~ place of beginning. And that's G?
A That is incorrect,
Q
A
And that's G and B, is that correct?
It's correct, and it's incorrect. It
24 Q But I'm asking you what the deed says. The
25 deed says that, correct?
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A The deed says that, right.
Q The deed fJays that, And if you go to the
next paragraph in that deed, it says, being lot 16 on the
Conodoguinet plan of Country Club Hills - -
A Right.
Q It doesn't say in there, and also part of
lot 15, does it?
A No, but it's-- there's this word beginning
here that sort of-- not what it is when it starts the
paragraph.
Q I believe I asked you before, you were
living in the property on Sycamore Circle when Mr. and Mrs.
Hoffman bought their property in 1992/ is that correct?
A That's correct.
Q And after they bought the property, they
undertook-' I meant they would mow their own lawn, would
they not?
A Yes,
Q And when we get to the area that we're
talking about as the area in dispute, where-- how far--
where would they mO~1 to?
A The Defendants would mow the lawn.
Q
A
Q
You mean, Mr, Hoffman or Mrs. Hoffman?
Or Lyle.
I'm sorry?
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Q
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Or I..yle,
Lyle would be their son(
Lyle lived thel'e/ and he mowed frequently.
When Lyle mowed, did he always mow the same
A
Q
Yes, he did.
And as far as the area between the end of
the hedge and Sycamore Circle, where did he mow?
A He mowed to the Hoffmans' side of the bed in
which the hedge was located out to the fence.
Q Out to the split rail fence in the front?
A Correct,
Q If George Hoffman mowed, where did he mow
to?
A Approximately the same place. Only
occasionally, he would cut into the bed a little further.
If Claire Hoffman mowed, where did she mow
Q
to?
A
Q
A
she mowed.
Q
I didn't see her mow very frequently.
But when you saw her mow?
I don't watch her mow, so I don't know where
So basically / George and Lyle mowed
essentially the same line?
A Yes.
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Q And did they mow on their side of' the hedge
from the hedge back to the back corner?
A They mowed from t.heir side of the bed that
was the hedge bed / yeah. They didn't mow the - - right
outside the hedge, because that was all full of flowers and
mulch.
Q But where there was grass, they mowed?
A Yes.
Q They mowed the lawn on their side of the
hedge, is that correct?
A On their side of the hedge, where there was
grass, they mowed.
Q After they bought the property, did they
trim the hedge at all?
A Truthfully, trimming the hedge was not a
popular item at our house. So I know it was trimmed
occasionally. I did it myself a couple times. Sue's
nephew did it. I tended not to pay too much attention to
it unless I was asked to trim it.
Q As I recall, you told us before at the
deposition that the hedge was lucky if it got trimmed once
a year, is that accurate?
A I don't think I said those exact words, no.
You may have said that, and I may have agl'eed with you.
Q Well, if you agreed with met then that's--
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you adopted that statement?
A It was not trimmed very often,
Q Okay. When the Hoffmans trimmed, did they
trim any more than just their side of the hedge?
A Not that I remember,
Q When you trimmed, I'm talking about you
personally now, when you trimmed, did you trim anything
more than your side of the hedge?
A I trimmed the whole thing, both sides.
Q How about the top? Did you trim the top as
well ?
A Yes.
THE COURT: We're just about at the noon
hour. If I don't ask this question, I'll forget it. Which
deed-- which lot was sold first by the developer? Was that
going to be in the record somewhere?
MR, McCALEB: It is in the record, It will
be in the chain of title. And my recollection is that, her
deed was-- her chain of title was.
THE COURT: And it's always carried this
anomaly as to where it's-- where it ends, where your ending
point is?
MR. M~CALEB: Well / the beginning point.
THE COURT: Well, I think the beginning
point seems to be clear, does it not, but the ending --
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MR. McCI\Llii!3: The beginning point if-) the
2 .rror. ."" b,ginning polni " ih' 0""" hOd ii" al,.y'
1
) boen ihe aa~' Th' d""lplloO h" b.eo "" ".' ihe whol'
<1 way.
THE COURT: When you say, it' s in error, hoW
6 do we knoW that, that it'S in error?
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'l'HE WITNESS: It'S in confl let,
MR. McCALEB: It'S in conflict with the
subdivision plan.
THE COURT: 1 Sf;:e.
MR. McCAIJE,B : The deed describes it as being
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12 101 16 on Ih' plan, bul 101 16 do.,n'c b.gln ac chaC poinc.
11
THE COURT: 1 see. It'S a very interesting
" ca'" W.'ll cak' a ,.c'" for lunch, ,nd 1 gu'" wh.n w.
13
15 co~ back chon, w,'r. going co h.a' ch' "icne" by
16 teleconference.
MR. McCALEB: That'S my understanding. Then
18 after that/ we'll resume with Ms. sicchitano.
17
THE COURT: okay, Court is in recess.
19
(Whereupon, a lunch recesS was taken at
20
11:52 a.m. and proceedings reconvened at
21
1 :00 p.m.)
22
THE COURT: Mr. Adler.
, ~
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MR. ADt,ER: Thank you. 1 think we're
25 walclng co geC ou'-- if we could gei ou' wicn'" on lln'
24
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f.F~J.;
Tl-JE: WITNESS: I'm here,
THE COURT: We see your hand.
MR. LONG: We're ready to go in CarUsle / if
you're ready in California,
THE WITNESS: Yeah, I sure am, I'll slide
into view. Hi there,
~HE COURT: Great. Mr. Adler, are you
calling a witness?
MR. ADLER: Yes. Are you rais~ng your right
hand?
THE WITNESS:
MR. ADLER:
THE COURT:
Yes, I am.
Okay. It's nice to meet you.
I need to swear you in. You're
calling a wi tness by the name of Randy--
MR. ADLER: Landau.
THE COURT: Landau. Mr. Landau, would you
raise your right hand, please?
Whereupon"
RANDALL EUGENE LANDAU
having been duly sworn, testified as follows via video
transmi ssJ.on:
DIRECT EXAMINATION
BY MR. ADLER:
Q State your full name and address, please.
A Randall Eugene Landau, 6446 Harwood Avenue,
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1 Oakland, California.
:2 Q What I s your occupation?
3 A Musician/linaudible) student.
4 Q I'm going to turn your att8ntion to 1969 at
5 818 8ycamore Circle, Do you have the exhibits there with
6 you?
A
Q
A
Yeah, I sure do.
Okay.
Is there a number I ~hould look for?
Q Yes/ S-2.
A 8-2.
Q Yes, the copy of the subdivision plan.
A Yes, got it.
Q All right. Looking at S-2, your parents
used to live at 818 Sycamore Circle, is that correct?
A That's right.
Q And do you know which lot on 8-2 that
address is?
A That looks like it would have been lot
number 16.
Q And the area in question is labeled with the
coordinates A, B, and G. Do you see that?
A Yes, I do.
Q All right, Now I'm going to turn your
attention to that area. Back-- first of all, when did your
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Q
A
Q
A
that point.
Q
A
Was that boundary --
IncludIng trimming around the telephone
pole. That's a task I remember very well.
Q All right. When you moved in 1969/ was
anything demarcating that boundary point from G to A such
as --
A Not that I know of.
Q All right. So what did you or your
stepfather or both put into that area that would have
marked that boundary between G and A, such as plantings or
fence?
A Oh, well, in May of 196~, I'm pretty sure
though in the spring of 1970/ my stepfather had a nursery
plant a row oft I believe there were six of them, big
evergreen bushes along that boundary line.
Q Okay. Just for the record, what's your
stepfather's name?
A William R. Birney.
Q And you were there with your stepmother also
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whose name WrW what-- or your mother's name?
A Charlotte J, Birney.
Q And these six bushes, again, on Exhibit B-2,
can you locate those approximately on those-- that exhibit?
A Yeah, I would say that if you dissected that
line into thirds, it would be the center third along the
line that runs from G to A,
Q Why did you think that was the boundary line
between lot 16 and 15?
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Q
A
Why did I think that?
Or why?
Because my st.epfather told me it Was. I
didn't really have a say much beyond that.
Q Not at age 15?
A No.
Q Did you mark that boundary with anything
else besides the six plants in the hedge?
A No, no.
Q Okay. No other-- was there any other
fencing along that boundary?
A There was fencing that-- as far as I can
remember, and I'm not real clear on that, okay, but as far
as I can remember, there was a split rail fence that came
to point G. Now I've seen in pictures, the ones that you
sent met that the fence extends a little bit beyond that.
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24 1978, did you, whenever you were there, did you help your
25 stepfather with lawn maintenance?
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I can 't remembet' if we did that or maybe if someone did
that afterwards or therE! were actually two :installations of
a split rail fence, pre-flood '72 and post-flood '72. It's
possible that the fence was extended after 19"/2, I just
don't have a real clear memory of it.
Q Okay. So you and your family were in the
property from when to when?
A 1969. Then they moved out :in 1978.
Q And how long were you there?
A Well, technically, I lived there the entire
time. I was there full-time as a high school student at
Camp Hill High School until 1972 when I graduated,
continued to live there up until, I'd say, '74 or '75, when
I started doing quite a bit of traveling because of my
work. But when I wasn't on the road, I would come back and
usually stay wi th my folks or that was technically my
address,
Q So when you went on the road between, say/
'7'1 and '78/ how long a period of time were you on the road
and how long were you at home generall y?
A I may be gone three months, maybe back for
two months. It varied.
Q So during that entire time between 1969 and
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8 on the property?
9 A Well, as I said, that's the section of the
10 fence that I don't have a real clear memory of. But it
11 certainly is the same type of fence that was sort of
12 trademark in every hOllse my mother and stepfather lived in,
13 split rail fence.
14 Q Okay. So you're not sure if it was there or
15 not when you were there?
A
Q
Oh, yeah, Oh, yeah,
I'm going to turn your attention to the
pictures that I sent you/ Exhibit 8-4.
A Okay, I got them.
Q Okay. Let's look at picture 4 of S-4.
A Okay.
Q Do you recognize that fence and where it is
16 A Not a hundred percent. I don I t seem to
17 remember it extending that far when I was there.
18 Q But it extended partway between, if you look
19 at 8-2 again, between point G
20 A It extended to about point G/ which was the
21 junction of our yard, the Callen's yard. The Callens lived
22 at number 14, and the Uhls at the tim8 who lived at number
23
24
15,
Q
Now as you're looking at picture 4 again, is
25 that the approximate location of the hedge that your
108
1 stepfmther planted?
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A Yeah.
Q Back in 19'70?
A Yeah, I'd say so.
Q Let's look at. picture 9 of 8-4?
A All right.
Q When you say that you thought., - or your
family thought the boundary was from the telephone pole
back to point. G --
A Yeah.
Q -..is that the telephone pole that you're
talking about in nine?
A Yeah, if it isn't, it's one that's in the
same place, yeah.
Q So when you maintained mowing the lawn with
your stepfather --
A
Uh-huh.
Q --you pret.ty much shot a straight line from
that pole back to G?
A Yep.
Q Now could you tell the activities that you
engaged in to maintain that area?
A Yeah, mainly--
Q That area being, as you're looking at
picture 9/ the point to the left of t.he line from the
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telephone pole back to point G?
A Yeah, pretty much a straight line back to G.
Just mowing the lawn, becaust~ there wasn't anything except
the hedge at that time. 1 don't recall this nplit rail
fence in the corner of the front yard, So we maintained--
cut. the grass around the pole, trimmed the grass on both
sides of the hedges, maintained the hedges, and back to
point G.
2
Q The hedges-- so you trimmed on both sides of
the hedges as well as the top?
A Yeah,
Q Was there any mulch around the hedges?
A Yeah, I believe there was tanbark around the
hedges on both sides.
Q Were you ever responsible
A Which would be tough.
Q Did you and your stepfather ever weed that
or replace the tanbark?
A Oh, sure, yeah. We maintained t.he hedges.
Q So was that pretty much done on a regular
basis from the time it was put in in the spring of '70
until your family left in 1978?
A Yeah. Yeah, it was.
Q In the summer, approximately how much would
you mow this area?
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A Once a week.
Q Was that like a ritual with your stepfather,
to do it that regularly?
A Yeah, Saturdays.
Q And that continued through 1978 whenever you
were home?
A Yes, whenever I was home.
Q And --
A Occasionally / he would say / would you do the
lawn this week, meaning, sometime during the week, would
you do it, because he's going to be away, just to be clear
about t.hat,
Q And how often do you say that he or you
would trim the bushes / the hedge that we're talking about?
A Boy, it's kind of hard to tell, Probably,
knowing my stepfather, probably more than necessary.
So a few times? Two, three, four times a
Q
summer?
A
Q
in 1978?
A
Q
you and YOUr
Maybe more.
All right. Now then, the property was sold
Yeah.
Well, as far as you know, from '69 to '78/
family always considered this triangle in
question part of your property, is that correct?
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A Well, we maintained it as it wast yeah.
Would YOll like me Lo toll y(lU the story'?
Q Sure.
A Okay. Shortly after the bushes wer'e put in,
the former tenant next door
Q What was his name?
A Jack Uhl,
Q He was the tenant not the owner?
A He was not the owner. He was not the owner,
no. And somehow or another, he was able to decipher what
he considered the property line to be. And so there was
just a running gag between he and my stepfather as far as,
you know, by the way, my bushes are looking a little ratty;
by the way/ my bushes need a little more tanbark. And it
was just a joke.
And so, you know, I'm not sure if-- there
was never anything beyond that as far as where the property
line went. But as far as saying, you know, yes, it was our
property, and that's how we believed, it didn't matter, you
know, The bushes were there. The Uhls didn't care. We
didn't care.
5
They would set their lawn mowers so it was
the same height as our grass/ if they mowed before us. We
would set the lawn mowers as the same height as their
graBs, if we mowed before them. That's probably more
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'nowo, th.n yo" ',"OdOd. b", tJ",., Ion. it wO,""
o No., 10" " f,j n" 80 'h,y "'''md op.. J Oot op
'0 thoc ""'" H." m"kod by 'Ion "'oPhone Pole b'ok '0
Paint G?
113
A Yes, they did.
o And thon YOo moW'd op '0 Yo" "do of '10"
lino f,om tho 'e1,pho,,, Pole to Pol" 0'
A Yeah, they did. And yes, We did.
o 80 YOo 'lWoy, "O'tod '10" "i,nglo " ,
MR. ADLER, r hovo no forth" gOOo"ono for
Mr. I,andau at this time.
THE COURT: Mr. MCCaleb.
CROSS EXAMINATION
-
Part of YOUr property?
A Yeah, We dido Yeah, And the hedges.
Q Okay.
A And trimming around the fence post.
Q All right.
A And the phone Pole.
By MR. MCCALEB:
o 'r, L,Od". '''lin 'OC"Ob, "0 'Poko on '100
telephonl3 on TueSday, if you remember?
A I remember.
o Vory good, r Jo" .'n'od '0 go, ,omO'h1ng
01"" 1 od, "10" yoo Wore t'l king obo" 'r, "101 'nd yo"
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A Who mowed their lawn first. Maybe they
would mow their lawn at 9,00 in the morning on one
Saturday, and we would mow our lawn at 9:00 in the morning
on t.he next. Saturday. You know what I mean.
Q But either way. do I understand that Mr. Uhl
and Mr.. Birney observed the same line there?
A Yeah, the phone pole,
Q Did I understand you to say that, whenever
you mowed, you mowed on both sides of the hedge?
A Yes.
Q The side facing Mr; Uhl as well as the side
facing the Birney house?
AYe;:>.
Q When Mr. Uhl mowed, would he mow on both
sides of the hedge?
A No,
Q Was there a flower bed around the hedg~ at
that time?
P. No.
Q I'm sorry. No?
A No.
Q Was your answer no?
A No. That's a no,
Q Did I understand you to say that you also
participated in trimming the hedge?
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A At times, under supervision.
Q Do you remember when we talked on Tuesday /
you indicated that Mr. Birney was the one that did the
hedge not yOU?
A
Q
Yeah, uh-huh.
Does that meant Mr. Birney did it most of
the time?
A
percent flip.
Q 99 percent he did it, 1 percent you did it,
I would say, it wag 11 99 Percent to 1
is that your
A You bet, The 1 percent I dido it was more
or less-- I meant he had a way that he wanted to do things,
and it seemed to work fine, You know, he was my
stepfather, How much am I going to argue with that?
Q When you trimmed the hedge, did you trim the
top of the hedge as well as the Side?
1l. No, if there was trimming to be done, which
I don't have a real clear memory oft okay, but that would
have been him.
Q You just would have trimmed the side then?
A I probably would have just stood there and
helped him, and then he probably would have sent me off to
do something else.
Q So basically, he trimmed the hedge then?
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A I'd say so, yeah. To keep it nice and
simple, yeah.
Q Do you remember when we talked on the
telephone on Tuesday about your mowing the lawn, do you
remember that I asked you then, did YOll mow on bot.h sides
of t.he hedge?
A I didn't catch the full question. Something
about both sides of the hedge?
Q Do you remember me asking you H you mowed
on both sides of the hedge?
A Yes,
Q And you recall telling us then that you
mowed only on your side of the hedge?
A You know, honestly, I don't. And if I dido
I was mistaken, because we figured it was our-- we put the
hedge there. We maintained it, including trimming on hath
sides.
Q So your recollection today is that, you
mowed both sides?
A Pretty much, sure, yeah, yeah, because I
remember being very concerned about mowing in between the
hedges. I don't know if you still experience this problem,
but there was a wood t.ick infestation in those types of
trees, in evergreens, and we had dogs that always had wood
ticks. And I didn't want to have wood ticks.
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Q Just FJO
A And the hedges were quite-- go ahead.
Q Just so I understand, you lived there on a
daily basis until after you graduated from high school in
1972/ correct'?
A That's right.
Q And after that, as a musician, you spent
time on the road and time at home?
A That's right.
Q And gradually, the time on the road became
longer, as much "IS three months or more?
A At times, I would be gone for three months.
Q Then you would come home for a couple months
and then go back out on the road?
A Yeah.
Q The last time that you lived there was in
1978/ correct?
A Yes.
Q Now after Mr, and Mrs. Birney saId the
property, did you go back to visit the property after that?
A I went by it once or twice. I didn't
actually visit the property except one time before the new
tenants moved in, and before the house was even sold, It
was stIll my parents' houFJe, and no one was living there.
This was in probably the spring of 1978.
I went back to
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just sort of wander around and take onB last look at it.
But other than that, I have only gone by it once or twice,
maybe in the early '80's.
Q The early 1980's would have been the last
time that you saw the property in person/ is that correct?
A Yeah, to the best of my recollection,
Q Now you've been referring to some
photographs that appanmtly you have in front of you?
A That's right.
Q Are those original pictures or are you
looking at Xerox copies of photographs?
A They appeal to be Xerox copies.
Q
Are yours black an~ white or are they in
A They're black and white.
Q Do you knoW when those pictures were taken?
A No.
Q If we go to photograph number 4 in 8-4?
A Yeah.
Q As you sit here today, you cannot recollect
that section of the fence being there when you lived there,
is that correct?
A Not that section, no.
Q And as you sit there today, can you say with
any degree of certainty that's the same hedge that was
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there when you were living t.here in the 1970's?
A
Well, it looks like it.
It.' s in the s.:.rne
place. Whether or not. t.hey're the exact same bushes, I'm
really not sure what the life expectancy of that type 6f
plant. is, So it is sort of hard to say whether or not
t.hey're the exact same bushes, but they certainly are in
the same place.
Q Well, you haven't-- you weren't on the land
at the time the picture was taken to do any measurements as
to the location of that hedge, were you?
A No, I certainly wasn't.
Q Now
A It appears to be -.. go ahead.
Q No, go ahead. Finish your statement.
A I t appears to be in the same pl ace. And it
appears to be the same bushes.
Q Based on what you remember since 1980?
A Yeah, based on what I remember since
actually 1970 when the bushes were put in.
Q But you haven't seen the bushes since 1980?
A No, I haven't. Early 1980.
Q As I understand it, when you were living
there on the property, you thought the property line was
along the, where the hedge was projected out to the
telephone pole in the front, correct?
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1~at's right, yeah.
2 Q And as far as you knew, that was the line
3 that was established in the deed by which Mr. and Mrs.
4 Birney acquired the property, is that cort'ect?
A
Q
As far as I kllow.
At that time you didn't think that you were
on somebody else's property, that YOll were taking someone
else's property, did yOU?
A No,
Q You weren I t intending .to take any part of
the pt'opert y next door and make it part of yours, were yOU?
A No.
THE COURT: I can't remenilier. Is this the
witness who had only half an hour? What is YOllr schedule,
Mr. Landau?
THE WITNESS: Oh, I'm okay for about another
20 minutes.
THE COURT: Okay. Very good. Thank you,
MR.llolcCALEB: We'll be finished by then.
20 Can you read back my last question? I'm
21 asking the stenographer to read back my last question.
22 THE WITNESS: I understand.
23 (Whereupon, the cOllrt reporter read back the
24 last question,)
25 BY MR. McCALEB:
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Q You mentioned a Mr. uhl as being the
occupant of the property next door?
A That's right.
Q As we understand it, Mr. and Mrs. Birney and
Mr. and Mrs. Uhl were social acquaintances?
A Yeah, they were. They were good neighbors.
Q They visited in each other's homes, is that
correct?
A Yeah, they dido yeah,
Q And I think you told us when we spoke the
other day on the telephone that, when Mr. Birney was F.lbout
to put in these bushes, he talked to Mr. Uhl about the
matter, about putting the bushes in?
A That, I don't remember. As a matter of
facto it was after the bushes were put in that I remember a
conversation between Mr. uhl and my stepfather. And that
was the conversation that I eluded to during the prior
questioning.
Q Do you remember telling us on the telephone
the other day that Mr. Birney spoke to Mr. uhl before the
bushes were delivered to the site?
A Did I tell you that on the telephone the
other day?
Q Do you remember saying that?
A No, I really don't.
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were planted?
A I don't remember h.i.m being there that day.
Q Were you there?
A Part of it / yeah. I remember sel;ling the
truck, and I think I described that to you on the phone,
Was Mr. uhl
Did I --
Was Mr. Uhl there the day that the bushes
the process of planting.
Q And Mr. Birney was there?
A I don't remember. I don't think so. I
think it was done on a weekday, and he was probably at
work. There were two instances when they had to do the
planting because one of the bushes died shortly after
planting and had to be replaced. And I'm not sure if I'm
remembering him being there for the planting of the
original hedge row or for the planting of the bush that had
to be replaced.
Q Well, on the day that the bushes were
brought in and planted, who po.i.nted out to the nursery
where the bushes were to go?
~ I'm not sure if the day they were planted
was the same day that the determinat.i.on was made as far as
the placement of the bushes themselves. I think that was
done before the nursery actually showed up. And I have no
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recollection of that whatsoever.
Q You think the location, the decision on
where to locate came before the actual planting?
A Yes, I do.
Q And do you remember how that location was
marked on the land?
A No, I don't.
Q Do you know if Mr. --
A I imagine--
Q Do you know if Mr. Birney spoke to Mr. Uhl
about making that determination as to where the bushes
would g07
A No, I don't.
Q I take it, you don't remember Mr. Uhl
digging any holes for the bushes?
A No. As a matter of facto the holes were not
dug by- - the holes were dug by a rather large machine.
These were big bushes. They had a dirt ball on them
probably (indicating).
Q Now you just gestured with your hands, and I
am, for purposes of the record, you held your hands what /
about three feet?
A About three feet, yeah.
Q And high, about?
A And maybe about two, maybe about two feet
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Q
Just turning your attention to picture 9 of
S. 4 '?
A You're speaking to me?
Q Yes.
A You got it.
Q You see that L.shaped ~plit rail fence next
to the telephone pole?
A Yep.
Q Was that there when you lived in the
property?
A No.
Q And that was the tree, the dogwood tree and
the bed there when you lived in the property?
A I don I t remember the tree. I don I t remember
the bed. No, in facto I can guarantee that bed and the
fence was not there. The tree / maybe, But the bed and the
fence definitely was not there.
Q So you were mowing all around that area?
A Oh, yeah.
MR. ADLER: I have no further questions.
THE COURT: Mr, McCaleb.
RECROSS EXAMINATION
BY MR. McCALEB,
Q Are Mr. and Mrs. Birney still alive?
A Yes, they are.
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point i8, call Kclren Gopear, FJO she doefJl1' t have to st.ay
here all aftenloon, and t.herl we can go back to Ms.
Sicchitano. Is that all right with you',
MR. McCALEB: I have no objection.
Whereupon /
KAREN l,OUISE GOPEAR
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. J\DLER:
Q Would you state your name and address?
A Karen Louise Gopear, 747 Collina Drive,
Lewisberry.
THE COURT:
THE WITNESS:
THE COURT:
Your last name is spelled how?
G-o-p-e-a-r.
Thank you.
BY MR. ADLER:
Q How are you familiar with 818 Sycamore
Circle?
A I've been cleaning that house since 1983.
Q And what is your current occupation?
A I'm a sales associate at the Bon Ton, and I
clean homes.
Q So going back to 1983/ for whom were you
working at that time?
A
Sue Moyerman.
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Q How do you know it. was 1983 '.'
A Because my son was in kindergarten, and I
had to be home by 12 to pick him up at the bottom of the
street. He was in kindergarten in '83.
Q How often did you work at the house?
A Every week.
Q On what d~y?
A Wednesday.
Q For how long?
A One week, it was five hours. Well, when I
first started, it was four, because I had to pick my son up
at the bottom of streett but then it got to five hours and
two hours.
Q So you've been doing this every week at thi.s
house since 1983?
A Yes, sir.
Q And you still do it?
A Yes, I do.
Q Was there a time when you were there more
frequently than once a week on Wednesdays?
A Yes, I took care of her when she got very
ill/Sue Moyerman. She got cancer / and she was very ill.
Q Around when was that?
A '95/' 94, '95, somewhere around there.
Q And so for how long a period of time were
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1 you there on a more frequent basIs'?
2 A About three months.
3 Q And when I say, more frequent / . was that
4 every day, every other day?
5 A Yes/ every day, from 3 until at least 10:00
6 at night.
7 Q I'm going to show you what's been labeled
8 Exhibit S-2. And this is the subdivision91an of the lots
9 in question. You're basically familiar with this?
10 A Yes, I am.
11 Q And so you know which lot is Gayle
12 Sicchitano's lot?
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Yes, I do.
And that is what lot?
Number 16.
And which lot is the Hoffmans' lot?
Fifteen.
Q Now you heard Mr. Landau testify, so you
know the area that we're talking about that's in question?
A Yes, sir.
Q The triangle?
A Yes.
Q On that Exhibit 8-2/ can you approximately
locate that triangle that we're talking about?
A A, B,- right here, the A and the B. Is that
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what it is, G?
THE COURT: Wai t.
stenographer to take this down.
into the microphone,
It's too hard for the
You'll have to speak I'ight
5 THE WITNESS: A and B.
6 BY MR. ADLER:
7 Q So it was within that area?
8 A Yes, it was.
9 Q And going back to the rear of the property?
A Yes.
Q I'm going to show you what we've already
labeled as Exhibit S-4. These are some pictures. Turn
your attention to number 4. Now going back to 1983/ do you
remember if that fence was there in '837
A Yes, it was.
Q And that fence was there from when to when?
A It's been there ever since I know until the
present.
Q Do you know around when ic was taken down?
A l'd say, in the last couple of years.
Q And 1 meant that's ""_
A Part of it is still there. This is just one
section from the bush back a little ways was taken out, but
there is some towards the back.
Q Okay. And then at the end of that fence in
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been there?
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A
Yes, sir.
Q And is that the split rail fence, the
L-shaped split rail fence to which you were referring?
A Yes, sir.
Q So since 1983, what has been there?
A That split rail fence. It has never
changed.
Q Up until the time it was taken down?
A Until the present, yes/ absolutely.
Q And was that bed in approximately that
location since 1983?
A Yes, sir.
Q The tree has been .there, the dogwood tree
has been there since 1983?
A Yes.
Q
Do you remember if the bushes had been there
17 since '83?
18 A I don't remember that. I just know it was
19 really pretty out there. She had flowers and stuff out
20 there. It was very pretty.
21 THE COURT: I'm sorry. 1 didn't hear you.
22 THE WITNESS: She had beautiful flowers out
23 there. It was very pretty.
24 THE COURT: Oh, okay.
25 BY MR. ADLER:
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Q Now when you were there on Wednesdays, and
then for the perIod of time when you were there more
frequently taking care of Ms, Moyerman, did you ever
observe the maintenance of that side of the property?
A Yes.
Q Between the Hoffman property?
A Yes.
Q And the Sicchitano property?
A Yea.
Q Just again turning your attention to picture
4/ how was the area between the Sicchitano house and that
split rail fence and the hedge maintained and by whom?
A She had landscapers come in and take care of
all of that.
Q
A
And did you ever see them take care of that?
Yes.
17 Q And
18 THE COURT: When you say / she, whom are you
19 referring to?
20 THE WITNESS: Sue Moyerman.
21 THE COURT: Okay.
22 BY MR. ADLER:
23 Q And so you saw them mow?
24 A Yes, I did.
25 Q And did you ever see them trim the hedge'?
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4 A Pretty often, When it needed it. You know,
5 they came on Wednesdays when I was there.
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Yes, I did.
Do you remember approximately how often they
Q
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A
Oh, did they?
Yes, thel' did,
Now did they mow up to the fence?
Yes.
And you saw them mow up to the fence?
Yes.
Q Did you ever actually see them trim the
hedge that we've been talking about in picture 4?
A No, I didn't really see them there trimming
it, but it was very neatly trimmed, and I'm sure that they
did that.
Q Okay.
A You know, they put the tanbark down and
trimmed the other bushes, and it was all tri.mmed.
Q So you saw them trim the other bushes on the
property?
A No, nOt I didn't see them trim them, no.
But she had landscapers come in and do the property, and
when I went there, everything was beautiful, the bushes and
everything all at the same time.
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Q
So whon tile wholo thinej ~laB dono, It l()oked
Uke the border.. - It lookcld liko everythIng within the
boundaries of the split rail fence, and the hedge was part
of that landscaping order, iEI that correct?
A Yes / yes.
Q Turning your att(~ntion again to picture 9/
the area from the telephone pole back to the hedge?
A Uh-huh.
Q
Now did YOLl observe them mowing that area as
well ?
A Well, I didn't see them exactly mowing it.
I saw the grass level, you know, when they cut it. It was
lower than the other property, so I could tell that's where
they cut.
Q Okay. So--
A t would come out and look at it / and i. twas
pretty. I could see the line where they cut it with the
mower.
Q
A
Q
And that was on a regular basis?
Yes, absolutely,
And was that / in fact / the line that they
cut: up to?
A
Q
large hedge?
Yes.
The front of the telephone pole back to the
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Yes, because the people that lived next door
didn't take lea 11 y good earn.
'fHE COURT: 1'111 sorry. Did not .--
THE WITNE:SS: The people that 1 i ved next
door to them didn't take really good care of their yard, so
I could see the level of gr'ass when they cut.
THE COURT: WhQ were they next door?
THE WITNESS: I don't know.
'I'HE COURT: Was that somebody renting?
THE WITNESS: I think so.
THE COURT: I'm get.ti.ng a little concerned
about our time. We have only about two and a half hours
left for the whole case, and Mr. McCaleb hasn't had a
chance to present his case.
BY MR. ADLER:
Q So when Gayle Sicchitano became the owner of
the property
A
Yes.
Q - -who took care of this area we've been
talking about?
A Gayle did.
Q Gayl8 took care of it herself?
A Yes.
Q You'd see her taking care of that?
A Absolutely.
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Q Would flhe take car'e of that up to the flame
boundar.y line that we1vo been talking nbout?
A Yes/ yefl.
Q So she'd be out therlo! mowing?
A Yes.
Q Did you ever see her trimming that hedge,
that five foot hedge, or don't you remember?
A
I don't remember,
Q She would also take care of this bed out
front?
A Yes, put tanbark in there, yes.
Q And that continued up until around when that
maintenance of that area that we're talking about,
continued up to around when?
A I don't understand.
Q I guess it's been testified to that at some
point in timet the Hoffmans tried to take over this
property again?
A Yes.
Q So do you know when she stopped or was
forced to stop maintaining this area of the property?
A Maybe a couple years.
Q
A
Okay.
A year and a half or so.
THE COURT: I'm sorry. I just can't hear
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you,
THE WITNESSI A year and a half,
3 THE COURT: Actually, Mr. Adler, if you
4 would ask the questions from back in your chair, then the
5 witnesS would not. tend t.o speak to you over there,
6 MR, ADLER: I have no further questions for
7 the witness at this time,
8 THE COURT: Okay. Mr. McCaleb.
9 CROSS EXAMINATION
10 BY MR. McCALEB:
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Q You mentioned earlier that the people next
door didn't take very good care of their yard?
A That was when I first started in '83.
Q Back in 1983?
A Yes, I noticed how terrible it was taken
care of.
Q Do you know Mr. and Mrs. Hoffman?
A Yes, I do.
Q And we understand, they've lived there since
1992/ is that right?
A I'm not sure, you know,
Q Well, do they take better care of their yard
than the people you were t.alking about did?
A
Q
Yes.
They mow the lawn?
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1 ilnd then sometimes I would wor<k five. So the five hour job
2 is whell they would usuiilly come because, you know, the time
3 difference.
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Q
Wednesdays?
A
Do you know, did they COme other days than
That, I do not know.
Q And do you know, was it the same lawn
service that mowed the lawn that also trimmed the
shrubbery?
A That, I don't know.
Q So you don't know if the ~hrubbery was
trimmed the same time or on the same day that the lawn was
mowed?
A Right.
Q
In facto you don't remember seeing who it
was that trimmed the shrubbery?
A No, I do not.
Q The photographs that you were looking at, do
you know when they were taken?
A No, I do not.
Q Were you present when the photographs were
taken?
A
Well, it looks the same now as it did in
'83.
Q
But my question wast were you present the
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No, sir,
:2 MR. McCAl,EB: No further questions.
3 THE COURT: OkilY. Mr, Adler.
4 REDIRECT EXAMINATION
5 BY MR. ADLER:
6 Q You said, at times you observed that the
7 whole Sicchitano yard was done, milnicured, tanbarkedl
8 trimmed?
A
Q
Yes.
When that was done, was that five foot hedge
also done?
A Yes.
MR. ADLER:
MR.. McCALEB:
THE COURT:
I have nothing further.
Nothing,
Okay. You maY step down.
'rhank
you.
MR. ADLER: Thank you very much.
THE COURT: May Ms. Gopear be excused if she
chooses? May she be excused?
MR. McCALEB: Fine by me.
MR. ADLER: Yes. But you're welcome to stay
if you'd like to.
THE COURT: You may stay or leave as you
choose. Thank you. Mr. Adler.
MR. ADLER: I think we're on cross
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,/'.....
examination of Gayle sicchitano.
CRuSS EXAMINATION
BY MR. McCALEB:
Q Ms, Sicchitano, you mentioned in your direct
testimony about an incident where there was damage to the
split rail fence or around the flower bed out front. And I
think you indicated that Mr. Hoffman repaired that fence,
is that correct?
A He repaired it with the permission and
funding from Sue Moyerman.
Q At that point did you consider that fence to
belong to Sue Moyerman?
A Sue Moyerman always considered it to be her
fence.
Q 1'm asking you, did you consider it?
A Absolutely.
Q You didn't consider it to be the property of
Mr. and Mrs. Hoffman at that point, did you?
A Never.
Q And as I re<;:all, I think you indioated that
the damage resulted from a snowplow banging into it during
the winter months, is that right?
A The plow didn't bang into it. The plow
pushed the snow.
() And the snow damaged it?
U6
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1 A And the snow damaged the fence. So there
2 were, I believe, two rails that were broken. And the
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Hoffmans were always very willing to help Sue. George had
a L~uck, and it'a easier to carry II-foot rails.
Q So he went and got the rai.ls and replaced
them, is that right?
A I don't know if he replaced them. Probably,
if Sue was out there.
Q He went and got the rails and brought them
back / correct?
A Correct.
Q Do you know if Sue Moyerman reimbursed him
for the cost of those rails?
A I'm sure she did.
Q They were on a fairly close relationship,
weren't they / the Hoffmans and. Sue Moyerman?
A I don't know what you mean by close.
Q Well, they were friendly neighQors, were
they not?
A
They were very civil. You know, they would
talk. They would.
Q Well, her fence was broken / and he repaired
it as a good neighbor, right?
A That's right.
Q And that was in 1993/ correct?
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A Somewhere in there. After that snow storm,
I'm sure it was in there somewhere.
Q And wasn't there a time later when there was
a drainage problem out back along the common property line
between the two properties?
A No, the drainage problem was on the
Hoffmans' property. There was water collecting in an area.
And at that point either Mr, or Mrs. Hoffman approached Sue
about putting a drainage ditch through her property to the
woods out back that would drain that piece of little water
collection place out that way. And it's my understanding
that George did the labor / and Sue bought the parts. And
he laid the pipe out through the yard.
Q Through whose yard?
A Through Sue's yard, And the water problem
then was abated on the Hoffman property, but it tended to
come over more on Sue's property then.
Q But the original idea was to carry the water
from the Hoffman property and the Moyerman property back to
the rear?
A That's a low area between the houses, and
the water gathered there. And there was a tree there at
one point on the Hoffman property, but it's gone now,
Q So again, they worked together on that
project. He did some work, and she paid the costs and the
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13 was nothing to replace that-- I mean, they didn't put a
14 piece of hedge back to replace that, did they?
15 A Well, Sue had talked about maybe putting
I'""~;
1 the grass/ yard, and between the end of the hedge, is that
2 correct?
A
Q
That's correct.
And is that the location where the piece of
hedge that was killed by the snow was taken out.?
A It was damaged by the snow.
Q Damaged by the snow?
A And it was taken out, yes.
Q Mr. and Mrs. Hoffman did that, is that
right?
A They volunteered to.
0 They volunteered to do that. And then there
another piece back, but - -
Q But a piece was not put i.n?
A No.
Q That became part of the flower bed?
A Correct.
Q And it is in that location whel'e the two
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22 butterfly bushes went?
23 A No.
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Q
A
Where were the butterfly bushes?
The butterfly bushes were back here, this
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1 section presently,
2 Q Right now, you're pointing to both ends of
3 the hedge?
4 A Right. This one has been removed. This is
5 not a solid hedge. There's a bush here. There's an
6 arborvi tae. There's a bush, There'S an Clrborvi t ae,
7 'fhere' s a bush. The two arborvi taes are new, relatively.
8 Q Those are the other two pieces of the hedge
9 that you testified to were replaced?
20
A
Q
A
Q
correGt?
A
Q
she died?
A
Q
there gaps?
A
Q
the hedge?
A
Q
Now I asked you before where the butterfly
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There are gaps.
Are there gaps between the arborvitae and
Uh-huh.
25
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since the rope went up?
since the rope went up?
Occasionall y.
Why do you mow over on their side of the
A
Q
A
Q
5
rope?
A Well, truthfully, because I still think it's
my yard. And the Hoffmans, you know, attempted to make it
obvious that they thought it was their yard, so I thought
there was a difference of opinion. After the rope went up/
I occasionally mowed on the other side. I t was easy. You
could just slide right under it.
Q When was the last time that you mowed on
their side of the yellow rope?
A The last mowing before October 17th, 1998/
when they tilled it and planted the new butterfly bushes
and did all that stuff, and then I just-- it's yours.
Q You haven't mowed on their side since then?
A Correct. I didn't want to damage the
butterfly bushes.
Q And as I understand from your earlier
testimony, you had no knowledge of the fact that the
surveyor's property line was different from where you
thought it was until the surveyor actually went out and
staked it out, is that correct?
A That's correct.
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Q Now after that, you told us that you had a
consultation with your attorney?
A Uh.,huh.
Q And was it in that consultation that he
explained to you about the law of adverse possession?
A I knew something about adverse possession in
general,
Q
A
Prior to that, you mean?
Yeah. The only thing I didn't know was the
10 amount of time necessary,
11 Q At that timet when you were talking to your
12 attorney, did you know who it was that first started using
13 that triangular area?
14 A I did not know, but I had made some
15 assumptions based on observation.
16 Q Observation being that the fence and the
17 hedge line appeared to be the normal property line / is that
18 right?
19 A Correct. / and the fact that t\le hedges were
20 obviously mat.ured and had been there for quite a while.
21 Q But at that time, you didn't know who was
22 taking care of the hedges prior to when you moved into the
23 property, did you?
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A
Q
Yes, I did.
And how did you know that?
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1 Q But your deed also said it was lot 16/ and
2 you knew that lot 16 didn't include the triangle?
3 A Not until later, I didn't know.
4 Q Well, the point of it is, you haven't been
5 paying taxes on tbat triangle, have you?
6 A I have no clue what I pay taxes on half the
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time.
MR. McCALEB: No further questions.
THE COURT: Mr, Adler.
REDIRECT EXAMINATION
BY MR. ADLER:
Q I'm going to show you what's been, I think,
labeled as Defendant's Exhibit 4. This is a copy of a
survey.
THE COURT: Let's see. That would be
Hoffman Exhibit. 4?
THE WITNESS: Yes.
THE COURT: All right.
BY MR, ADLER:
Q Just, you see the points marked A, Band G
on there?
A Yes, I do.
Q If you draw a line from A to G/ does the
tri.angle, A, G, B, encompass the area in question that
we're talking about here today?
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A
Yes, it does.
MR, ADLBRl Thank you. I have nothing
.further.
TUB COURT:
MR. McCALBB:
Mr. .McCaleb,
Would you leave that up there,
please?
MR. ADl,ER 1 Yes.
RECROSS EX~~INATION
BY MR. McCALEB 1
Q Ms. Sicchitano, would you look at the little
box in the lower right corner of this survey, Hoffman 47
Do you see where it says, date, April 7, 1998?
A Yes,
Q Now if you look at the time at the line, if
you look at the three points, A, B, and G/ and then look at.
the general area represented by that triangle, does this
survey show the split rail fence sections as being in
position at that time?
A It dDesn't show them at either place,
Q So that in April of 1998/ the fences weren't
there?
A Yes, they were.
Q So in that respect then, you're saying that
the survey is incorrect?
A
I don't know when this survey was done. I
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know the date on it.
Q You jWJt read the date.
A I know, Sure, I read da~e checks.
I don't
4 know when it was done. I really don't. It was done after
the original survey.
Q When you say / original survey I you mean /
when the surveyors were cut on the land?
A Right, when the stakes were put in the yard,
Q Right, On that date, the fence rails Were
still in place?
A The fence rails were there for much longer
than I expected them to be.
Q I think you told us before about the fence,
the invisible fence, I think you said, that you installed
for your dog'?
A Uh-huh.
Q Now when that was put in, the section that
was between your house and the Hoffman house, that was
pretty much along the line of point A and point G?
A Correct.
Q And they call it invisible fence because
what you do is, you put this line under the ground, right?
A, Correct.
Q That emits some sort of a signal?
A Signal.
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A Yes.
Q Do YOll remember: when we did YOl'r deposition
back on November 25, 1998?
A Ninety-eight?
Q Remember, we did a deposition in Mr.
Butler's office? In fact, we did three depositions that
day. We did Mr. and Mrs. Hoffman and you. Do you remember'
that?
A
'I'hat was '98?
Q Well, do you remember doing the deposition,
regardless of what the date was?
A I remember the deposition, yeah.
Q And that day, when we did the deposition,
you were there, Mr. Butler and Ms. Butler, his daughter,
were there, Mr. and Mrs. Hoffman and I were there?
A Right.
Q We did Mrs. Hoffman's deposition first.
Well, we did her deposition. You remenilier LIS doing that?
A Yes.
Q Okay. Let me show you a copy of Claire
Hoffman's deposition from that day, And there's some
exhibits attached to that deposition. These exhibits are
handwritten letters which she sent to Mr. Butler. Do you
remember us talking about those?
A I don't remember talking about them. I
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1 remember the letters.
Q
A
Q
You did see these letters, did you not?
YeS,
Let me refer you to her letter dated August
11, 1997. . Look at the last paragraph of that letter.
A This letter was not written to me.
Q No, it was written to Mr, Butler?
A Right.
Q But you told us that Mr. Butler gave you
copies of that letter?
A That's correct,
Q So you fi:'W that letter?
A Yes.
Q And in that letter, didn't, she say that she
wanted Ml', Butler to tell you to remove that invisible
fence?
A Mr. Butler didn't tell me.
Q But he showed you the letter?
A I saw the letter.
Q So you knew that she asked to have the
fence, the invisible fence removed?
A
Q
A
Q
That's a decision I made,
But you knew that she had asked to have --
No/ I really-- it really doesn't matter.
My question is, did you know that she asked
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1 to have that fence removed?
2 A I don't remember her asking to have the
3 fenct;\ removed.
Q
A
You remember reading the letter?
I read the letter.
Q Do you remember reading that paragraph where
she says/ tell your client to move the fence?
A I suspect I read the whole letter.
Q As you sit here today, do you specifically
remember sl,'1eing that paragraph?
A No, I don't specifically recall that
paragraph.
Q Okay, In point of facto you did move that
section of the invisible fence, did you not?
A I did.
Q It's now along the line marked as B, G/
correct?
A Approxi~ately, yes.
Q Which is the-- where the survey says the
property line is. And you did that at the end of August?
A
Q
A
Correct.
Of '97/ correct?
Correct.
MR. McCALEB: No further questions.
THE COURT: Okay. Mr. Adler.
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REDIRECT EXAMINATION
BY MR, ADI,ER:
Q Just referring you back to Exhibit S-3, the
survey, along Sycamore Circle has flower bed delineated
around the dogwood tree?
A Yes.
Q And that almost exactly approximates the
location of that I,-shaped fence, does it not?
A Yes, the corner does, yeah,
MR. ADLER: I have nothing further.
MR. McCALEB: Nothing.
THE COURT: You may step down. Thank you.
Before we recess, I just want to be sure we are going to
have in the record the dates of the deeds for these two
lots when they were first deeded by the developer.
MR. McCALEB: Correct, Your Honor. They're
in both the abstract of title, and in the Sicchitano chain,
there's a copy of the actual deed. I bel ieve that the one
deed came out in 1960, and the other deed came out in 1966,
THE COURT: From the developer?
MR. McCALEB: From the developer. That's my
recollection. The deed in her chain of title. did come out
first.
THE COURT: And it's always carried that
25 same description?
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1 MR. McCALEB: Your Honor, at this time I'd
2 like to move for a compulsory nonsuit, I'm prepared to
3 argue my motion at this point, if you want to take that.
4 argument,
5 THE COURT: Okay, Why don't we take just
6 two minutes / and then I'll hear from Mr. Adler for two
7 minutes.
8 MR. McCALEB: I'm not sure I can do it in
9 two minutest but I'll try.
10 THE COURT: All right.
11 MR. McCALEB: We've talked this morning
12 about some discussion about the error in the deed, Your
13 Honor. I pointed out that the deed to the Sicchit.ano deed,
14 you know about the error in there.
15 THE COURT: Well, it's confusing.
16 MR. McCAl,EB: It is confusing, I will grant
17 you. But the reference to the subdivision plan was-- the
18 reference in the deed to the subdivision plan incorporates
19 the plan into the deed, puts t.he plan on the same status as
20 monuments.
21 THE COURT: What's your case that says that?
22 MR. McCAI.,EB: Well, there are several of
23 them that are cited in my trial brief, Your lIonor. They
24 are old Superior Court cases because this has become a
25 matter of black letter law. I haven't found any recent
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1 cases that really have dealt. wit.h that. Richi::\'rdcwn v. ClU
2 of McKeesport, .18 Pa. Super. 199. lliu:per v., Coleman, 9.1
3 Pa. Super. 62. And Goldsmith v. Fillman, 33 Pa. Super.
4 48,44,
5 TIm COURT: Do you have the Atlantic cites,
6 by any chance?
7 MR. McCALEB: They didn't have Atlantic
B cites, and Lexis didn't have Atlantic cites for them
9 either.
10 THE COURT: That probably was before the
11 West Law system was picking up those cases.
12 MR. McCALEB: As nearly as I can tell, yes.
13 The gist of it all is that, if there's a discrepency
14 between the courses in distance and the subdivision plant
15 the subdivision plan supersedeo and cures the problem.
16 This is something we deal with all the time in conveyances.
17 It's not unusual to find an error in a description, but
18 it's cured by the reference to the subdivision plan.
19 Having said that --
20 THE COURT: Let me just ask. Mr. Adler, are
21 you in agreement, that's what those cases say?
22 MR. ADLER: I just got this memo four hours
23 ago, so I don't know what the cases say.
24 THE COURT: Okay. Mr, McCaleb.
25 MR. McCALEB: My point in that ill that, that
167
1 typographical error apparently, but !]ol1lothinq 1lI0rn flfJt.lolW
2 than that in the description?
3 MR. McCALEB: I Udnk :In all tho ca!](.w, they
4 dealt wi.th errors in number and feet, Whol:hnr tho[J(, were
5 typographical errors or not, I don'l: knuw. I t h ink tlm
6 error in this situation WaFJ c10arOl y iI !l'PCKjl'ilphloll] (lITOl:
7 because they omitted one P111:t.lcU] ill' ('III] In ordnlo to got to
8 the correct point of beg:lnning, I Iwvo not. found ci
9 specific case dealing wil:ll iHl en.'On'I(HIII polnlo. of boglnning.
10 The cases 1'm talking about havo itll doni 1. wi I:h I1Ol1ln r~n:or
11 in the COUI"Se of di stance, Ji:1 thot' !hoy fli'. I d nurth when
12 they should h,:lve said sout.h or they fI<'lld "I hundt'od feet
13 when it should have been fifty fNlt, And that wow all
14 corrected by the incorporation of the pian.
15 THE COURT: If ther.'o WOrfJ no subdivision
16 plan.
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MR. McCAI,EB: That would be a dHferent
story.
THE COURT: Do you agree that / the rule
would be that the property would be l1Iade to close at thll
place of beginning?
MR. MCCAI,lWl If thet'l.J wot'l'l no fJubdivisi.on
plan, that's anent.iroJl'dlffot'ont fLltllClLlon/ and I would
not be making this arqunlont nuw,
TIlJi: C'OlIIi'J'1
Ulldlll"1I1 ,'1IId that / but would
-
I (-1 ~I
,f""\
1 that be the r~le?
2 MR. McCALEB: 1 think the rule is that, it
3 becomes clearly a matter of what was intended and what the
4 facts would show was intended not that you would
5 necessarily bend everything to meet the original point of
6 beginning, If you could show that there wast in facto an
7 error in the point of beginning, that nobody intended, I
8 think you could correct it that way. But I don't think
9 that's the rule,
10 THE COURT: 1'11 tell you what. This is
11 sufficiently comp1icated that I don't think I'm going to be
12 able to resolve it in the next four minutes.
13 MR. McCALEB: I don't think I can finish my
14 argument in the next four minutes,
1.5 'rHE COURT: Why don't we just go ahead, and
16 it will be without prejudice, Mr. McCaleb, to your right at
17 the conclusion of the trial to make that type of argument.
18 MR. McCALEB: If I understand what you're
19 saying is, you're taking it under advisement to address it
20 later?
21 THE COURT: Well, I don't think I'll grant a
22 motion for compulsory nonsuit.
23 MR, McCALEB: Yeah, I understand.
24 THE COURT: But I am certainly not rejecting
25 your arguments. I just don't have time at this point to
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1 purchased the property at 820 Conodoguinet Drive in 1992?
10
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5 in '92.
6
7
B
9 it?
A
Yes.
Q
Now when did you move into the property?
A
It was the 4th of July wE,ekend, I believe,
Q
In 1992?
A
Yes.
Q
Had you seen the property before you bought
A
Yes, several times.
Q
Okay. Now before you-- oh, in your deed,
12 there was a reference to the subdivision plan, the
13 Conodoguinet Plan of Country Club Hills. Are you familiar
14 with that reference and that plan?
15
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22
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24
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A
Q
A
Q
A
Q
in 1992/ who
Circle?
A
Q
correct?
Now, I am, yes,
At the time, you weren't, is that ri.ght?
Yes, sir.
And who di.d you purchase the property from'?
Mr. Thompson.
At that time, at the time that you purchased
was living in the property at 818 SycamQre
Well, Sue Moyerman.
She is now deceased, we understand, is that
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A Yos/ that is true.
Q At that time what, if anything, was on the
land between your home and hers?
A The before-mentioned shrubbery was there,
the split rail f-3nce, and the ftmce at the end at Sycamore
Circle.
Q Let me refer you now to the survey that's
been marked as Hoffman Exhibit 4. Do you have that in
front of you?
A Yes.
Q The survey, I believe we said that's dated
April of '98/ is that correct?
A Yes, it is.
Q Does that survey show the hedge that you
were-- the shrubbery you were talking about in 19927
A Yes. Yes, it does.
Q Is that the thing marked five foot high
hedge, six foot high hedge?
A Six foot high hedge.
Q Does that survey show a split rail fence
between the hedge and point G?
A No, it does not.
Q Do you know why it does not?
A Because I removed it.
Q You removed the split rail fence?
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1\ Yes.
Q Nhen did yoU do that.?
A '1'0 be specific, 1-- a specific date? It was
sometime in '97.
Q Was it after the surveyor was out there to
survey the land?
A '1'he first time, yeS. It was after the first
surveying in July of '97.
Q And does that survey also show the split
rail fence at the front of the property?
The one around the flower bed, the other
A
flower bed.
Q
A
Q
A
Q
The one at the front out by Sycamore Circle?
No, it does not.
Why doesn't it show that?
Because I had removed that also.
Did you remove that at the same time as you
did the other one?
A Yes.
Q Now did you have the property surveyed
whenever you bought it in '92?
A No.
Q Did you see the subdivision plan in '92 at
the time you bought the property?
A No.
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1
Q
Were you aware of any question about the
2 location of the property line, the property line between
3 lot 15 and lot 16 when you bought the property in 19927
4
A
No,
5
If you had known then about this dispute,
Q
6 would you have purchased the property?
'7
A
No.
8
Where did you think the property line waSt
Q
9 the line separating lot 15 and 16 when you bought the
10 property?
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13
14
15
16
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A
I presumed that it ran through the hedge,
just the way the property was landscaped.
Q That's the way it looked, is that right?
A That's the way it looked, yeah.
Q After you bought the property, who took care
of the yard work at your house?
A
Well, I dido my wife dido and my son, Lyle.
Q
Okay. Tell us / please, when you dido when
19 you mowed the lawn, where did you mow to?
20
A
Well / in the disputed area / I mowed from the
21 front of what is now the flower bed. At that time it was a
22 shrub there. But basically, it was the same size, about
23 the same size, And I just mowed at an angle over to the
24 fence.
25
Q
To the split rail fence in front?
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A
Q
Yes.
As far as h'om the hedge back, where did you
mow to?
4 A From the hedge back, we mowed up to the
5 fence. We mowed a) ong the hedge and up to the split rail
6 fence.
7 Q The split rail in the back?
8 A Right.
9 THE COURT: Could I ask a question just out
10 of curiosity? You said you wouldn't have bought the
11 property had you known about the disputed area. But if I
12 understand your testimony correctly, you didn't think you
13 owned that area when you bought it, is that right?
14 THE WITNESS: Well, I did not know where the
15 line was, I did not think I owned that, no.
16 THE COURT: So actually, you may have more
17 propert.y than you thought you had when you bought it?
18 THE WITNESS: This is true, yes.
19 THE COURT: But you're still Baying that you
?O might not have bought it had you known there would be a
21 dispute?
22 THE WITNESS: No, I would not have bought
23 it.
24 THE COURT: You would not?
25 THE WITNESS: Without a clear title, I would
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1 not have bought the property.
2 THE COURT: I see. Okay. Mr. McCaleb.
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BY MR. McCALEB:
Q Yes, at the present timet are you able to
sell a clear title to that property?
A I doubt it. Right now/ there is a lien
against our property because of the adverse possession.
Q Because of the statement that Ms. Sicchitano
has filed, is that correct?
A Yeah.
Q Now since you bought the property, who has
trimmed the hedge?
A Since we have bought the property?
Q Since you bought the property, right?
A We initially started out trimming our side
because we assumed-- we had spoken to Suet and she assumed
it was her hedge, so we took care of our side of the hedge
initially. And then as things went along, Sue appreciated
me trimming the hedge, so I trimmed the hedge usually, It
was usually once or twice a year.
Q When you trimmed, what part did you trim?
A The whole hedge. Top. Both sides.
Q Both sides?
A Both sides.
Q Now you heard Ms. sicchitano testify earlier
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today, did you not, did you hear her testify that she
trimmed both sides'?
A I never saw her trim both sidee.
Q Did you hear her testify to that?
A Yes.
Q Is that testimony accurate?
A To my knowledge, it was not accurate.
Q Did you have anything to do with repairing
the split rail fence?
A Yes.
Q Tell us about that?
A
During the storm-- winter of '93/ we got
13 heavy snow, and the front-end loader broke down a couple of
14 rails around the Sycamore Circle fence, And Sue had
15 complained about that, So I had a truck, I thought, well,
16 I'll pick them up and put them in for her. It's no big
17 deal. And I did. And she paid for them.
18 Q She paid for it, and you did the work, is
19 that what you're telling me?
20 A She paid for the rails. I went and got the
21 rails and she reimbursed me.
22 Q Do you remember when that was?
23 A It was in the-- it would have been in the
24 spring of '93.
25
Q
At that particular timet how would you
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1 describe your relationBhip with SUB Moyerman?
2 A Very friendly,
3 Q Did you make any other repairs or
4 improvements along that property line?
5 A Well / Sue had complained about the water
6 gathering at the end of the shrubbery here where the back
7 split rail fence was,
8
Q
Now for the record, let's see if we can be a
9 little more specific with the area that you're talking
10 about. We're now referring to Hoffman Exhibit 4?
11 A It would have been this area right here
12 along because it's a sloped area here. It slopes down from
13 Sue's hOl,lse. And it also slopes from our house. So it's
14 an actual gully.
15 Q Are you referring to the area north of the
16 end of the hedge?
17 A Yes, right at the very end of the hedge and
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back.
Q
A
How far back did it go?
Well, in a heavy rain, it would be quite a
pool.
Q
A
And would that cross over the property line?
Yes, it was right-- it was actually on both
sides.
Q
The pool was on both sides?
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Q
Yes.
Did it caver the area that's shown on this
3 survey as the northern most tilled planting area?
4 A Yes, that just about runs through what would
5 be --
6 Q Now exactly, what did you do?
7 A What I did waSt took and put a large
8 seepage, what do you call, like a cesspool, filled it with
9 rocks, and put a seepage pipe in it. We ran a trench the
10 whole way down to the end of Sue's property,
11 Q Let me direct your attention to the north
12 arrow. Do you see which direction is north?
13
A
Right.
14 Q As far as that trench that you were
15 referring too in which direction is that traveling?
16 A It starts here, right here, and travels in
17 this direction.
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A
Is that northwest?
That would be a little northwest.
Q You're saying, northwest from the area of
the pool, across lot number 16?
A Right.
Q 1'0 the rear of lot number 16?
A And it ran within maybe 10 feet of the fence
that ran this direction.
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direction.
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was?
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possibly.
Q
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('"'",
The split rail fence that ran north of point
It sort of followed that. It ran down that
A
Yes, we did that.
Q
Would you tell us about that, please?
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A Well, the front large hedge was damaged
during the heavy SIlOW in 1993.
Q Let's go back to Hoffman Exhibit 4. Are you
referring to the end of the hedge closest to Sycamore
Circle?
A The last hedges, the last large bush. It
was broken down because of the heavy snow.
Q You're referring to the end of the hedge
closest to Sycamore Circle?
A Yes,
Q The southern-most end of the hedge?
A Yes.
Q And what did you do with that?
A Well, we removed a hedge, got rid of that.
And then we put in peat moss and sand and everything and
made a flower bed out of it.
THE COURT: I'm sorry. I'm having trouble
18 hearing you, You removed what?
19 THE WITNESS: We removed the hedge and
20 disposed of that, and then we used peat moss and sand and a
21 mixature to fill in the hole. And then we made a flower
22 bed.
23 BY MR. McCALEB:
24 Q And do you remember when that was done?
25 A Datewise, no, I really don't. It was about
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1 the time Sue was getting ill, in that neck of the woods.
2 Q It was while she was still alive?
3
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Yes, it was while she was still alive.
We understood,- understand from the
A
Q
5 testimony, she died in June of '95. Does that help you
G determine
A It had to be-- we did it during the summer,
so it would have to have been in '94, I believe. I know
she became ill shortly after, very ill shortly Rfter.
Q Now after she died, were you able to
maintain the same degree of relationship with Ms.
Sicchitano?
A No.
Q Describe how that relationship changed. Can
you lean forward and talk into the microphone, please?
A Well, our relationship was not anything like
with Sue. Sue, we had a friendly relation with. And Mrs.
Sicohi tano was very aggressive. I don't know how to
explain it. She ordered my wife not to touch the
shrubbery; they were hers. This was while Sue was very
ill.
Q After she said that, did you folks trim the
hedge anymore?
A No.
Q After Sue Moyerman died, did you change
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where you..., the line up to whi.ch you mowed?
A Basical.ly, I mowed the sarne line, because I
was still mowing from the front. of the hedge to the pole.
Q After Sue Moyermil:n died, did you make
anymore repairs to the spli t rail fence,'
A No.
Q Now we heard testimony earlier about the
survey. Do you remember when it was that the surveyor.
first came out to the land?
5
A
Q
I>,.
Yes, it was July 31st.
Of what year?
Ninety-seven.
13 Q Now at that time did he prepare the drawing
14 that's in front of you?
15 A He did not give rne that drawing at that
16 timet no, he just took all of his dimensions and
17 everything. The original survey. He did not give me the
18 drawing, We did not get the draWing until later,
19 Q Did he make any markings on the land to show
20 what he had found?
21 A Yes, he had put. in corner pins, and he had
22 also added the extra surveyor stakes inside our property
23 line along the line between lot 16 and lot 15.
24 Q Now again, let's refer t.o Hoffman Exhibit 4.
25 Did he put anything at point B to mar.k that corner?
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Yes.
Q
Has anyone other than you or Mrs. Hoffman
trimmed that hedge since then'?
A No, no, they haven't.
Q And when you trim the hedge since the
survey/ what part did you trim?
A
Q
you mow to'?
A
Q
A
Q
Both sides,
Since the survey stakes Went in, where did
To the survey stake line.
Up to your side of the survey stake line?
Yes.
Has anyone else mowed grass on your side of
those stakes since the survey stakes went in?
A For a period of timet yes.
Q Who did that?
A Sicchitano.
Q Ms. Sicchi tano / Gayle?
A Uh-huh.
Q Over what period of time did she mow that
area?
A
Until-- we couldn't keep her of.f of it, sol
23 parked a truck there. That didn' t do any good. So then we
24 put a-- we took the fence down, rototilled a section, and
25 put the yellow rope / strung it from point G to po!.nt B,
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Q Let's take a look at what has been marked
earlier as Sicchitano Exhibit 4, which is a collection of
photographs. Let's refer specifically to number 2, What
does number 2 show?
A Well, it shows my truck.
Q And can you tell us on Hoffman Exhibit 4
exactly where that truck is?
A It would have been parked right in this
area, right here,
Q I'm going to give you a blue pen, I want
you to draw a rectangle representing the truck. And inside
that rectangle, write truck.
THE COURT: That's on what exhibit?
MR. McCALEB: Hoffman 4.
(Witness complied.)
MR. McCALEB: Thank you.
BY MR. McCALEB:
Q And do you see any of the surveyor's stakes
in that photograph?
A Yes,
Q How many do you see?
A At this point, I see actually two of them.
Q Okay. On whose slde of the survey stakes is
the truck parked?
A On my side, on our property side.
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THE COURT, The same thing is happening
again what happened wi th Ms. Sicchi tano. It's hard for the
stenographer- -
MR. McCALEB, He's talking to me and not
the --
THE COURT: Right.
BY MR. McCALEB:
o Do you remember when you first started
parking the truck there?
A It would have been sometime in August of
'97,
o Do you remember how long you parked the
truck there?
A Well, it was a month or so.
o Was there any particular thing that happened
that you stopped parking the tr.uck there?
A We rototilled, took out the fence,
rototilled the area, put in our rope, and planted a few
bushes along the rototilled area.
o When was that done?
A That was done on October, I think it was,
October of-- the middle of October of '97.
o In 19977
A Yes.
o Did you hear Ms. Sicchitano testify earlier
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that it was October 17, 1998?
A She's in error.
Q It was '977
A It was '07,
Q Now you mentioned about putting up the rope.
She described about a piece of yellow rope being strung
along some stakes. Is that what you're talking about?
A Yes.
Q Was all of this done the same day?
A Yes, it was.
Q Now since the yellow rope went up, has she
mowed on your side of those stakes?
A She has backed over the ropes, but she has
never driven her mower on our side.
Q Since the yellow rope went up, has she
trimmed the hedge at all?
A No.
Q Since the yellow rope went up, has she done
anything with the flower bed in front?
A No.
Q Is the yellow rope still there today?
A Well, she tore it down, so it's laying on
the ground, but it's not really connected.
Q It's not up on the stakes?
A No.
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MR. McCALEB: Your Honor, I have a series of
photographs I want to go over with the witness. They're my
Exhibits 5 through 11. Mark them Hoffman 5 through 11.
And I have a copy for you to look at while we're doing
this, Your Honor.
(Whereupon, Hoffman Exhibits 5, 6, 7, 8, 9,
10, and 11 were marked for identification.)
BY MR, McCALEB:
Q Mr. Hoffman, I'm going to show you a series
of photographs. First of the all, are you the photographer
in the family?
A Yes.
Q Did you take these pictures I'm about to
show?
A Yes, I did.
Q I'm going to show you what's been marked as
Hoffman Exhibit 5. Tell me what that shows?
A That shows the area where we have
rototilled. and also shows the yellow rope.
Q The yellow rope that you put up to mark your
property line, is that correct?
A Right.
MR. ADLER: I'd like to enter an objection.
I'd just like to know when these were taken.
THE COURT: Do you recall when you took
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1 those pictures?
2 THE WI'rNESS: Yes, there's a date on the
camera.
BY MR. McCALEB,
Q There's a date on the photograph, What's
the date on that photograph?
A 6/22
Q June 22, 1998?
A Yes.
Q Does that picture accurately portray the
conditions of that land as they existed during that Lime?
A Yes, it does.
Q Now the line that's marked by the yellow
rope, does that portrav line B, G on Hoffman Exhibit 4?
A Yes, that portrays four inches inside our
lot. That is put on the stakes that were marked four
inches inside our property line.
Q And on Hoffman Exhibit 4, there's an area
extending basically from the street back to about the front
of the hedge which says, tilled planting area?
A Yes.
Q Do you see that?
A Yes.
Q Does this photograph show that tilled
planting area?
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Q
Yes, it does.
And the plants that are in there, who put
them in1
A We put those in, my wife and Y.
o Who takes care of those plants?
A My wife and I.
Q l,et 's move over to photograph- '" Hoffman
Exhibit 6. Is that roughly the same view from a somewhat
different angle?
A Yes, it is.
Q l>Cles that show in the background the hedge
that we've been talking about?
A Yes, it does.
Q And does that show any part of your house?
A Yes, it does.
Q And specifically, what part of your house is
showing there?
A That is actually our patio, plus it picks up
part of the kitchen and the dining room.
Q And the hedge opposite your patio?
A Yes.
Q It serves as a buffer between your hou~e and
the house next door?
A Yes, it does.
Q And is there a date on that photograph?
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A Yes, there is. It's 98/5/15.
Q Is that the date when you took this picture?
A Yes.
Q And does this picture accurately portray the
condition of the land as it existed at that time?
A Yes, it does.
Q I,et me go back to Hoffman Exhibi t 5. Strike
that. Let's go to Hoffman Exhibit No.7. What's the date
on that picture?
A 98/5/15.
Q And is that the date you took that picture?
A Yes, it is.
Q Does that picture accurately portray the
condition of the land on that date?
A Yes, it does.
Q Is that another view of basically the same
scene?
A Yes, it is.
19 Q Hoffman Exhibit No.8, is there a date on
20 that picture?
21 A Yes, it's 98/6/23.
22 0 And did you- - are you the photographer for
23 that picture?
24 A Yes, I am.
25 Q Is that the jate you took that picture?
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Yea, it is.
Q Does that portray accuratoly the condition
of the land as it existed at that timo?
A Yes, it does,
Q And tell us what tha~ picture shows Us?
5
A
That shows the actual corner marker for the
congruents of the three properties. That would be our
point G,
Q And does that show a yellow rope?
A Yes, it does.
Q What's the yellow rope attached to?
A To the wooden marker that the surveyor put.
Q Now does that photograph also show a portion
of a split rail fence?
A Yes, it does.
Q And can you tell us with reference to
Hoffman Exhibit 4 where that split rail fence is located?
A Right here at the point G,
Q At point G. Now there was testimony before
about a split rail fence between point G and the front of
the hedge, is that correct?
A Yes.
Q Does thIs photograph show any portion of
that split rail fence?
A No.
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Why not?
Because I removed it.
3 Q So that portion of the split rail fence was
4 ~ot there on June 23 of 1998, is that correct?
A
o
photograph?
A
It was not.
Hoffman Exhibi t 9, is there a date on that
98/7/7, I think it is.
Q Did you take that picture?
A Yes, I did.
o On that date?
A Yes, I did.
Q Does that picture accurately portray the
condition of the property as it existed at that time?
A Yes, it does.
Q Tell us, please, what that picture shows?
A That was a photograph you requested to show
the position of the boundary line in the present to the
fence.
Q Which marks the boundary line in that
photograph?
A The actual boundary line is that yellow
rope, four inches beyond that yellow rope towards lot 16.
Q All right. To the left of that rope is a
section of land that does not have any grass, is that
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1 correct?
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Q
This is true.
What is that?
A That was where the spli t rail fence was.
Q I see sticking out of the ground in at least
two locations, it looks like a piece of wood protruding
above the ground. What does that represent?
A The post-- it was actually three of them
there. There's one down at the end, too, but you can't
see.
Q So the split rail fence was actually on your.
side of the yellow rope?
A Yes, it was.
Q And what's the reason that we don't see the
split rail fence in that photograph?
A I removed it,
MR. McCALEB, For the record, I didn't
anticipate using this photograph, so I didn't make copies
of this. If we could make copies of it after the close of
testimony for my file and Mr. Adler's file. We'll lea.ve
the original here.
(Whereupon, Hoffman Exhibit 12 was marked
for identification.)
BY MR. McCALEB:
Q I'll show you what's been marked as Movant's
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1 Exhibit 12, ("irflt of all, is there a date on that
2 photograph'?
3 A Yes.
4 Q What's that date?
5 A 10/17/97.
6 Q Is that the date you took that photograph?
7 A Yes, it is.
8 Q Does that accurately portray the condition
9 of the property as it existed at that time?
10 A Yes, it does.
11 0 What does that photograph show?
12 A It shows that there is no fence around the
13 dogwood tree.
14 Q I wonder if you could stand up, please, and
15 hold that up because, unfortunately, that's the only thing
16 we have to look at, okay. Now if you'll describe in words
17 what you're talking about.
18 A What I'm talking about is, here is the
19 dogwood tree, The dogwood tree is right here. The fence
20 running along Sycamore Circle and then angled off here,
21 that was removed. And it was rototilled from here to the--
22 beyond the end of the shrubbery, and we put in the yellow
23 rope, which you can flee there, and planted several bushes.
24 Q What was the purpose in taking that
25 photograph?
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A
To demonstn"te the way we moved the fence,
and we had actually put the boundary in.
0 When was the fence removed?
A We removed the fence on that day.
Q On the day of that picture?
A Yes.
Q And when did you rototill?
A The same day.
Q When did you put up the yellow rope?
A Same day.
MR. McCALEB, That's all the questions I
have, Your Honor.
THE COURT: Okay. Mr. Adler.
CROSS EXAMINATION
BY MR. ADLER:
Q When you spoke about the drainage problem,
that drainage problem was on your land, lot 15 on the
triangle and on Sue Moyerman's land, right?
A True.
Q So you worked it out like a joitit project
because it affected that whole area?
A This is true.
Q And when you took that one bush out on the
end of the five foot hedge, or however high it was at that
time, that was with Sue Moyerman's consent?
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Yes.
MR. McCALEB: Those are all the questions I
have.
THE COURT:
MR. McCALEB:
THE COURT:
MR. M.cCALEB:
Mr. McCaleb.
No other questions.
You may step down. Thank you.
We call Claire Hoffman.
Whereupon,
9 CLAIRE M. HOFFI~
10 having been duly sworn, testified as follows:
11 DIRECT EXAMINATION
12 BY MR. McCALEB:
13 Q Name and address, please.
14 A Claire M. Hoffman, 820 Conodoguinet Drive,
15 Camp Hill, Pennsylvania.
16 0 I assume you are married to the gentleman
17 who just testified?
18 A Absolutely.
19 Q Mrs. Hoffman, I dDn' t want to plow the same
20 field a second time. You I va just hea!.d your husband
21 testify, did you not?
22 A Yes, I did.
23 0 Is there anything about his testimony with
24 which you disagree?
25
A
Well, he was a little unsure of when we
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pulled out that front bush.
Q When was that?
A That was done in May of 1995 when SUe was,
in fact, dying of cancer, And she-- we did discuss that
with her, and she did not like the way it looked, and, yes,
we could r.emove it, and, yes, we could put in a flower bed.
And we originally put the two butterfly bushes that Gayle
had her Bon remove in front of the shrubbery. And after
the dog fence, the invisible fence was put in, I moved the
bushes over to my side of the yard so that I could see them
instead of being seen from the street.
o So where Ms. Sicchitano placed the butterfly
bushes is not where they were originally put, is that
correct?
A No, that is not where they were originally
put, no.
o Now would you explain to the Court how it
came about that you folks had the property surveyed?
A Well, we came home from work one Friday in
July. The date, I believe, is the 7th, but I am not
exactly sure. The 11th, maybe. I think it might be the
11th. It was a Friday in July.
THE COURT: Of what year?
THE WITNESS: 1997. To find my bushes dug
out under the tree.
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BY MR. McCAl,rm I
Q 1'111 going to show YOLl what haa been marked
as Hoffman Exhibit No. 1.0, Can you-- fIrst of all, is
there a date on that photograph?
A 7/11/97.
Q
A
Q
A
Did you take the photograph yourself?
No, George did.
Were you present when it was taken?
Yes, I was.
Q Was the photograph taken on the date that's
shown there?
A Yes, it was, because that was taken in the
evening.
Q Does that photograph accurately portray the
conditions shown in the photograph at the time it was
taken?
A Yes.
Q Now what does that photograph show?
A It shows that my butterfly bushes are in.
large plastic bags. It shows a tool leaning up against the
split rail fence. It shows-- do you want me to tell you
everything that it shows?
Q No. We hi t the main parts of it. Is that
the way you found the bushes when you came home?
A Yes.
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1 Q You didn I t move the bushes before this
2 photograph --
3 A No.
4 Q --was taken?
5 A No.
6 Q And did Gayle Sicchltano say anything to you
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before those bushes were taken out?
A No, she did not.
Q Did she-. - she didn't tell you that she was
going to take them out?
A No, she did not.
Q And what did you do when you found these
bushes this way?
A I called my brother.
Q Okay. And what else did you do'? Let me put
it this way. Did you talk to Gayle?
A No, I did not.
Q Have you ever talked to her about those
bushes, why it was done?
A No, I did not.
Q Okay. What happened after that?
A I talked to my brother. He wanted me to
call the cops.
Q Let's not get into the who said something or
somebody else saying something to you. Just tell me what
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happened,
A Well, I had George replant the bushes almost
at the exact same spot where they Were, a little closer to
the arass, so that if that turned out to be her property,
then they would be on my property and not on her property.
Q Did you have any other episodes of plants or
flowers being removed from the flower bed?
A Yes, the next day, I was sitting at the
kitchen table having breakfast. I was at home alone. And
Gayle comes around on my side of the property to inspect
where we had replanted the bushes. We had some
conversation, not very pleasant, and she went over and tore
another one of my bushes out by her bare hands, tore out a
bunch of my flowers, and threw them down in the grass, my
bee bomb,
Q Let me show you what has been marked as
Hoffman Exhibit 11. Did you take that photograph?
A George took that photograph.
Q Were you present when it was taken?
A Yes, I was. That was Sunday. We waited
unt il Sunday for some reason or other to take the pictures.
Q What's the date on the picture?
A 9-- 7/13/97.
Q So it was the 12th that the flowers wel'e
ripped out, is that right?
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A Yes,
Q And does that photograph accurately portray
the conditions shown in the photograph as they were at that
time?
A
Yes, it does.
Q And what exactly does that show?
A It shows where we replanted the bushes, and
it shows the flowers that she tore out and thrown on the
ground.
Q Now after that episode, what did you and Mr.
Hoffman do about the property line?
A We contracted to have a survey taken so that
we would know exactly where the property line was.
Q And who did that survey?
A Hartman and Associates.
Q Are they the same people that prepared the
drawing that's in front of you marked as Hoffman Exhibit 47
A Yes.
Q When did they do that?
A The second surveyor the first survey?
Q The first survey, excuse me?
A Jul.y 31st, 1997.
Q Were you home when they were there?
A Well, I was there when they got there, went
out to play tennis, and I came home, and they were already
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finished,
Q What did they-. did they prepare that
drawing at that time?
A No, they did not,
Q What did they do?
A They put in the corner markers, and at
George's request, they had put the four stakes along the
property line between us and Gayle to show exactly how the
property line went, four in2hes inside our property line,
so they were our stakes on our property.
Q To mark the property line according to the
deed, is that correct?
A Right.
Q Now did you talk to Gayle Sicchitano that
day after the surveyor had done his work?
A After the surveyor had done his work, we
were sittIng on our patio, and Gayle come home and went
into the house and came back out and told us that she
didn't really need any more grass-- any less grass to mow,
or something to that effect about the mowing, but that
there was a problem because that was her property, and she
had a copy of her deed and a copy of the plot plan.
Q You said, a plot plan, Do you see that plot
plan in any of the documents in front of you?
A I see a copy of the plot plan, yes.
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Q Was there any writinSJ alongside?
A Not that I can recall.
Q Now just to be sure, was this the same day
that the surveyor was there?
A Yes, it was.
Q Prior to the survey, did you have any
conversations with Gayle Sicchitano about property line or
any question about the property line?
A One time, we were out ii': the front split
rail fence, and 1-- I don't know what we were talking
about, you know, that conversation, whole conversation, I
can't recall, but I do know that I said to her, do you
think maybe this fence could be on my property? She told
me, it didn't matter, that if it was there long enough, it
was hers.
Q Had you ever heard that before?
A No.
Q Did you and she talk about the property line
anymore in that conversation?
A No, we did not.
Q You didn't ask her what she meant by that?
A No, I was completely confused about that,
because I've never heard of adverse possession or anything.
I went in the house and spoke to my husband about it, and
he saId --
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Q Well, let's not get into what he said at
this point, okay. What I would like to do is, try to find
out when thJ.s conversation took place. Was it before the
survey?
A Yes, it was before the survey.
Q Can you recall any length of time, days,
weeks, months before the survey?
A No, I can't.
Q Did you remember anything about the weather
conditions when YOll were standing outside?
A Well, if I was standing outside, it was
probably a warm sunny day.
Q Would this have been before or after Sue
Moyerman died?
A I really don't remember.
Q Mrs. Hoffman, since the survey in July of
1997, who has taken care of the flower bed out front?
A We have. Mostly, me.
Q When you say, we, who?
A Mostly me. I am the person who likes to
plant flowers and do weeding.
Q Who would the other person be?
A Well, George, if I asked him to do it, but
he doesn't really like to do that sort of thing.
Q Has Gayle sicchitano done anything with that
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18 were identified at the beginning. And the rest of them are
19 photographs that we have talked about this afternoon.
20 THE COURT: What was Hoffman Exhibit 2?
21 MR. McC.ALEB: I'm sorry.
22
1""\
Q How do you know that?
A We have that picture that we took, and it's
dated October 17th, 1997.
Q Look in front of you. Is there a photograph
marked Exhibit 12?
A Yes.
Q
A
Is that the photograph you'r.e talking about?
Yes. And you can see his red truck on here
also.
MR. McCALEB: No further questions.
THE COURT: Mr. Adler,
MR. ADLER: I have no questions.
THE COURT: Okay. You may step down. Thank
you.
MR. McCALEB: Your Honor, I would at this
point like to move for the admission of my exhibits, being
Hoffman Exhibits 1 through 12. I believe 1, 2, 3, and 4
THE COURT: What was number 2?
23 MR. McCALEB: Number 2 is the Sicchitano
24 chain of title. Number 1 is the Hoffman abstract title.
25 MR. ADLER: What were three and four?
210
Ijfffq-"
1 MR. McCALEB: Three is the subdivision plan.
2 Four Is t.he survey. And then the photographs are five
3 through twelve.
4 THE COURT: Mr. Adler.
5
6
7
MR. ADl,ER: I have no objections to the
admission.
THE COURT: Okay. Hoffman Exhibi ts 1, 2, 3,
8 4, 5, 6, 7, 8, 9, 10, 11, and 12 are admitted.
9 (Whereupon, Hoffman Exhibits 1 through 12
10 were admitted into evidence.)
11 MR. McCALEB: With that, we rest, Your
12 Honor.
13 THE COURT: Okay. Mr. Adler, any rebuttal
14 testimony?
15 MR. ADLER: No, Your Honor.
16 THE COURT: Okay. Very nice. We'll enter
17 this-- well, first, do counsel wish to submit briefs? I
18 know, Mr. McCaleb, you did submlt a trial brief, but in
19 light of the evidence, did counsel wish to submit any
20 further briefs?
21 MR, ADLER: Yes, I do, and I would like an
22 opportuni ty to respond to the trial brief that's been
23 filed.
24
THE COURT: Did you want a transcript of the
25 proceeding?
211
,-'
1 MR. ADLER: Yes, please.
2 THE COURT: Okay. How much time after the
3 transcript is filed would you like for the filing of
4 briefs?
5 MR. ADLER, How long? Would 45 days after
6 the transcript be reasonable7
7 THE COURT: Is that satisfactory?
8 MR. McCALEB: I would want the opportuni ty
9 to respond to his brief, but other than that, I don't know
10 I'm going to be doing anything else because I've already
11 got the trial brief. I can certainly, if I can have, say,
12 10 days after he submits his to submit mine, that would be
13 plenty of time.
14 THE COURTl Mr. Adler, is that satisfactory?
15 MR. ADLER: That's satisfactory.
16 THE COURT: All right. We'll enter this
17 order.
18 ORDER OF COURT
19 AND NOW, this 27th day of April, 2000, upon
20 consideration of the motion to strike the statement of
21 adverse possession filed at 98-1848 CIVIL TERM and of the
22 complaint filed at No. 98-1940 CIVIL TERM, and following a
23 nonjury trial on this date, the record is declared closed,
24 and the matter is taken under advisement.
25 Pursuant to an agreement of counsel, and
212
~
1""'1
1 counsel for Gayle Sicchitano having requested the
2 preparation of the notes of testimony of tOday's
3 proceeding, Gayle Sicchitano shall be afforded 45 days from
4 the date of the filing of the transcript to submit a brief
5 to the Court on the issues which she perceives to exist in
6 the cases, and counsel for George M, Hoffman and Claire M,
7 Hoffman shall be afforded 10 days fOllowing the submission
8 of Ms. Sicchitano's brief to file a brief on behalf of the
9 Hoffmans.
10 By the Court,
11 jsl J. Weslev Oler. Jr.
J.
12
13
THE COURT: Is there anything else that
14 counsel think I should do at this stage?
15
MR. McCALE:B: Does the Court desire any oral
16 argument on this?
17
THE COURT: No, I don't think so. I think
18 it's-- I mean, I certainly wouldn't object to it, but I
19 think with the transcript and with the briefs, I can try to
20 sort out the legal issues. It's actually a rather
21 interesting case. Okay. With that, court is adjourned.
22
(Whereupon, the proceedings concluded at
23
3:50p.m,)
24
25
213
action with the following aase oaptIon and nUmber,
We therefot'e request that these aationa be consolidllted in " single
Case Caption, Oayle Sicohitano v, Oeorge M. Hoffman and Claire M. lloUman,
Case NUmber, 99-1940
Respeotfully Submitted,
) , ,'1
c{{(t.,/,( tt({d:tL
-Lt~fJ;kr--
Ronald D. Butler, Eequire
Attorney for Oayle Sioohitano
I.O. #09926
Mar1in R. MOCaleb, Esquire
Attorney fot' Oeorge M. Hoffman
and Claire M. Hoffman
I.O. #06353
Frankeberger Plaoe
219 East Main Street
P.O. Box 230
MeohanioSburg, PA 17055
300 North Seoond Street
P.O. Box 430
HarriSburg, PA 17109
.
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MMU.!N fl McCALEfl
The Hoffmans and Sicchitano share a common property line:
the western line of the Hoffman property is also the eastern
line of the sicchitano property (see the line marked by the
Points Band C on the attached survey).
The Hoffmans purchased their property on June 29, 1992.
sicchitano acquired her property on August 10, 1995. Sometime
before the parties acquired their respective homes, a split
I'ail fence and a row of shrubbery were installed between the
two houses. The fence began at the back corner of the
properties (Point C) and curved away from the property line
into the Hoffman tract. The row of shrubbery extended from the
end of the fence along the same line, but did not reach the
street. However, if the line formed by the fence and the
shrubbery were extended to the street (i.e., Points C and A),
it would form one side of a trJ,angle with the common property
line (Points A, B and C), having a height of approximately 131
feet and a base along the street of approximately 20 feet.
This triangle is the area in dispute in this action.
In July, 1997, Hoffmans commissioned a survey of their
property which located the common property line west of the
fence-shrubbery line (i.e., closer to the Sicchitano house).
The line was marked with stakes and rope and Hoffmans resumed
possession and use of the area between the property line and
the fence-shrubbery.
On February 25, 1998, sicchitano recorded a Statement of
-2-
Adverse Possession, claiming ownership of the disputed triangle
by reason of adverse possession, even though she had been out
of pos6\ession of that area for more than six months. Hoffmans
responded by filing a Complaint in an Action to Quiet Title,
seeking to strike the statement of Adverse Possession and
claiming possession and ownership of the disputed area for
themselves. Sicchitano responded by also filing a Complaint in
an Action to Quiet Title. Those actions have been consolidated
for purposes of this litigation.
II - PRINCIPAL ISapES AS TO LIABILIXX
A. WAS GAYLE SICCHI'rANO IN POSSESSION OF THE DISPUTED
AREA WITHIN SIX MON'I'HS PRIOR TO RECOIWING HER STATEMENT OF
ADVERSE POSSESSION?
Answered in the negative by Hoffmans.
B. IF NO'I', DID GAYLE SICCHITANO COMPLY WITH THE
REQUIREMENTS OF THE ACT OF MAY 31, 1901, P.L. 352 (68 P.S. 81)'7
Answered in the negative by Hoffmans.
C. IF NOT, SHOULD HER S'rATE/1ENT OF ADVERSE POSSESSION BE
STRICKEN FROM THE PUBLIC RECORD?
Answered in the affirmative by Hoffmans.
D. DID GAYLE SICCHITANO HAVE ADVERSE POSSESSION AND USE
OF THE DISPUTED AREA FOR A CONTINUOUS PERIOD OF 21 YEARS?
Answered in the negative by Hoffmans.
III - SUMMA~Y OF~GAL ISSUES
1_^W ("Tlfl.i
MAHI.IN II Me C^I.EH
A. DOES THE REFERENCE IN GAYLE SICCHITANO'S DEED TO 'I'HE
RECORDED SUBDIVISION PIAN INCORPORATE THAT PLAN INTO THE
DESCRIPTION IN THE DEED BY REFERENCE AND CORRECT ANY ERRORS IN
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involve a certain triangle of land located between adjacent
properties.
This will bea nonjury trial, with an
estimated duration of one day. By separate Order of Court,
these consolidated cases have been scheduled for Thursday,
April 27, 2000, commencing at 9:30 a,m.
One issue which has been presented at the
pretrial conference is whether the testimony of two
witnesses (non-parties) of Ms. Sicchitano will be permitted
to be received by deposition or live teleconference over
the objection of the Hoffmans. The Court has indicated
that it would permit the testimony to be received by live
teleconference over the objection of the Hoffmans.
A second issue of a legal nature is whether
Ms. Sicchitano may rely upon the doctrine of tacking when
her deed does not by description include the disputed area.
It :l.S the Hoffmans' position that tacking is not
permissible under the circumstances. In this regard, the
Hoffmans have cited Bavlor v. Soska, 540 Pa. 435, 658 A.2d
743 (1995).
Issues of a fact~al nature include whether
the quality of possession relied upon by Ms. Sicchitano (a
fence and lawn and garden maintenance) is sufficient for
purposes of adverse possession.
Counsel have agreed that the statement of
"'-~ ..........-
GEORGE M. HOFFMAN
and CLAIRE M.
HOFFMAN,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, !'ENNSYLV ANIA
v.
CIVIL ACTION- LAW
GAYLE SICCHITANO,
Defendant
NO. 98-1848 CIVIL TERM
OA YLE SICCHlTANO,
Plaintiff
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION -. LA W
GEORGE M. HOFFMAN
and CLAIRE M.
HOFFMAN,
Defendants
NO. 98-1940 CIVIL TERM /
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ORDER OF COURT
AND NOW, this 8th day of November, 1999, a pretrial conference in the abovc
matter is SCHEDULED for Thursday, January 6, 2000, at 1:30 p.m" in Chambers of the
undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial
memoranda shall br. submitted by counsel in accordance with C.C.R,!', 212-4, at least five
days prior to the pretrial conference,
A NONJURY TRIAL in the above matter is SCHEDULED for Wednesday, February
16, 2000, nt 9:30 a,m.. in Courtroom No. I, Cumberland County Courthouse. Carlisle,
!'cnnsylvllnill.
............
00t6//VftL
GEORGE M. HOF!rMAN and
CLAIRE M, HOF'FMAN, his
wife,
Plaintifffl
IN 'I'HE COURT OF COMMON PLEAS OF
CUMRERLA\~D COUNTY, PENNSYLVANIA
CIVIL. ACTION - LAW
v.
!
)
GAYLE SICCHITANO,
Defendant
No. 98-1848 CIVIL TERM
,
)
J
M_______________W________
GAYLE SICCHITANO,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
GEORGE M. HOFFMAN and
CLAIRE M. HOFFMAN,
Defendants
. /
;~0.98-1940 CIVIL TERM
l!L-RE : PRETRIAL CONFERENCE
A pretrial conference was held in the
chambers of Judge Oler in the above-captioned case on
Monday, April 10, 2000. Present on behalf of George M.
Hoffman and Claire M. Hoffman, husband and wife, was Marlin
R. McCaleb, Esquire. Present on behalf of Gayle Sicchitano
was William L. Adler, Esquire.
These actions are actions to quiet title
with respect to certain property on Sycamore Circle, Ca.mp
Hill Borough, cumberland County, Pennsylvania. The act ion
at No. 98 -184 8 CIVIL TERM is an action against Ms.
Sicchitano to strike a statement, based upon adverse
possession, which Ms. sicchitano filed. The action at
98-1940 CIVIL TERM is an action for adverse possession
filed by Ms. Sicchitano against the Hoffmans, Both actions
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involve a certain triangle of land located between adjacent
properties.
This will be a nonjury trial, with an
estimated duration of one day. By separate Order of Court,
these consolidated cases have been scheduled for Thursday,
April 27, :2000, commencing at 9:30 a.m.
One issue which has been presented at the
pretrial conference is whether the testimony of two
witnesses (non-parties) of Ms. Sicchitano will be permitted
to be received by deposition or live teleconference over
the objection of the Hoffmans. The Court has indicated
that it would permit the testimony to be received by live
teleconference over the objection of the Hoffmans.
A second issue of a legal nature is whether
Ms. Sicchitano may rely upon the doctrine of tacking when
her deed does not by description include the disputed area.
It is the Hoffmans' position that tacking is not
permissible under the circumstances. In this regard, the
Hoffmans have cited ~aylor v. Soska, 540 Pa. 435, 658 A.2d
743 (1995).
Issues of a factual nature include whether
the quality of possession relied upon by Ms. Sicchitano (a
fence and lawn and garden maintenance) is sufficient for
purposes of adverse possession,
Counsel have agreed that the statement of
The statement of'udverse possession filed hy Guyle Slechitllnoullhe Ofllce
of'the RecOl'dcr of'Deods In und lor Cumherland County III Book 172, puge SilO, is
stricken,
BY TIlE COURT,
;iLfJp:{
Wesley oic;'k .I.
Ronald D. Butler, Esquire
300 North Second Street
1'.0, Box 430
Harrisburg, P A 17108
Attorney for Gayle Siechitano
Marlin R. McCaleb, Esquire
Frankeberger Place
219 East Main Slreet
1'.0, Box 230
Mechanlc!lburg, I' A 17055
Attorney for George M. Hoftlnan and Claire M. Hoffman
. 00
C~ O.\IJ.~'
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between ncighbors, For thc rcasons stilted in this opinion, the court will find in
favor oflhe Hof'fi11lms and against Ms, Sleehltano,
STATEM1':NlOF FACTS
The mattcr at issue involves a triangular piece of land situated on the
eastcrn border of Lot No, 16 (Sleehitano Lot) and the western border of Lot No,
15 (HotTman Lot) on a subdivision plan for property located in Camp Hill
Borough, Cumberland County, Pennsylvania, Triangle ABG as shown on
Appcndix A to this opinion delineates the disputed arell,
A street known as Syellmore Circle constitutes the southcrn boundary of
both lots. The disputcd arc a may bc deseribcd liS being encompassed by a Iinc
beginning at a point 90,68 feet west of the southeast corner of Lot No. 15
(Hoffman Lot) and proceeding along its southcrn line, The line extends westerly
by a curve to thc right with an arc Icngth of 19,92 fect and a radius of 46,24 feet to
a point. The line then extcnds North 14 degrees 42 minutes East. 131.82 feet, to a
point. It thcrcafter completes a triangle by reconnecting with the point of
beginning, I
Gaylc Sicchltano purchas/;d Lot No, 16 on August 10, 1995,2 George M.
Hoftman and Claire M, Hoffman purchased Lot No, 15 on June 29, 1992.3 On
February 25, 1998, Ms. Siechltano recorded a statcment of adverse possession for
the triangle of land aforementioned and descrlbcd,4 On April 3, 1998, the
Hoffmans filed an action to quiet title, In this action, they sought to stl'ike thc
I Siechltano Exhibit 8, The des('ription of the disputed land recorded in the statement of
adverse possession was inaccurute, It was corrected by an order of court during the trial,
pursuant to an agreement of counsd, N,T, 9-12, Nonjury Trial, April 27, 2000
(hereinafter N.T. _' Nonjury Trial),
2 Sicchitano Exhibit I,
3 Hoffman Exhibit 1,
4 Siechitano Exhibit 8.
2
stlltcmcnt of IIdvcl'sC posscssion IInd to cstllblish owncl'ship of the IlInd IiiI'
themselves,'\ On April 8, 1998, Ms. Sicdlitllno li\ed hcl' ownllction to quiet title.f'
The two cases were consolidllted on .Junc 8, 1998, lit No, 98-1940,7 A non.lul'Y
tl'ial WaS hllld on April 27, 2000,
According to t.he subdivision plan, recorded In April of 1958, Lot No, 15
(Hoffman Lot) includcs thl~ pl'Operty in dispute; the IlotTmun deed description
likewise encompasses the disputed triangle.K The description in the deed to Lot
16 (Sicehitano Lot) is, on the other hand, confusing, due to un el'l'Ol' with rcspect to
the plllce of beginning, The description in Ms. Sicchitano's deed begim; liS
follows:
BEGINNING ut a point on the Northerly line of Sycamore Circle,
said point being located ninety amI sixty-eight one-hundredths
(90,68) feet measured in a Westerly direction along said line from
the Westerly line ofCondoguinet Drive;'!
The confusion al'ises because thc deed omits a second measurement that the
reeorded subdivision plan clearly shows. When describing the point of beginning
of Lot 16 (Sicchltano Lot), the drafter of the original deed apparently mistook the
90.68 feet measurement as extending to the cornel' of Lot No. 15 (Hoffman lot),
Consequently, a 19.92 foot UI'C that succeeds the 90,68 measurement was omitted
from the description. The subdivision plan clearly indicates that the westernmost
point of this lIrc, rather than the 90.68 foot measurement, forms the comer of Lot
No. 15 (Hoffman Lot) and mUl'ks the intended point of beginning 1'01' Lot No, 16
\ Hoffman Complaint. filed April 3. 1998,
6 Sicchitano Complaint, filed April 8, 1998,
7 Stipulation for Consolidation, para, 1, filed June 8, 1998.
K Slcchitano Exhibit 2; Hoffman Exhibit I.
9 Hoffman Exhibit 2.
3
(Slcchltano Lot). III This omis!;ioll occurrcd in thc original dC\ld of 1960 in the
. Sicehltano chain; the crl'llneous description has carried Ibrward unaltered
. Ihroughoutthe chain of title, Thus, the description in the deed of Ms, Sicchltano
reads exactly LIS the description in the deed of the original owners in 1960, II
However, Ihllowing the description of the property, the Siechitano deed
refers back to the subdivision plan by cOllcluding:
BEING Lot No, 16 on thc Conodoguinet PllIn of Country Club Hills,
said Plan being recorded in the Cumberland Country Recorder's
Office in Plan Book 9, Page 33,12
In addition, the castel'll line of Lot No. 16 (Sicchitano Lot) as described in
Ms. Sicehitano's deed references the western line of Lot No, 15 (Hofl1na/1 Lot) as
being the common boundary:
[T]henec by the Westerly line of Lot No, 15 on the suid Plan, South
14 degrees 42 minutes We!:t, one hundred thirty-one and eighty-two
hundredths (131.82) feet to the place ofBEG1NNING, 13
The description of property in the chain of title to Lot No, 15 (Hoffman
Lot) is in accordance with the subdivision plan-in other words, the description in
the deed includes thc disputcd area, The description of propcrty in the Hoftinan
deed reads exactly as the description in the deed of the original lot owners in
1967,14
A history of the physical use of the disputed property lTluy be summarized
as follows, In the spring of 1970, the owners of Lot No. 16 (Sicchitano Lot)
10 Sicchitano Exhibit 2; Hoffman Exhibit 2,
II Hoffman Exhibit 2.
121d.
13 Itl.
14 Hoffman Exhibit I.
4
planted approximately six evergreen hedges along the ellstern line of'the disputed
triltngle.l~ The owners of' Lot No. 16 (Sieehitano Lot) lInd the tenants of' I,ot No.
15 (Hoffman Lot) were social acquaintances and would visit each other in their
respective homes.16 They jointly agreed liS to whtlre the hedges would be
planted. 17
If the ellstern line of the disputed triangle were divided into thirds, the
hedges would be loellted in the center third, 1M A split !'ail fence extended from the
back of the hedges to the back of the property where Lot No, 16 and Lot No. 15
met at a point. There WllS 1I gap between the hedge and the fence, From the front
of the hedges to the front ofthc property there was only open IlIwn,19 A telephone
pole stood near the btlginning point (southeast corner) of the triangle in dispute.2o
From 1970 until they sold the property in 1978, the owners of Lot No, 16
(Sicchitano Lot) mowed 1I10ng an imaginary line that connected the back fence,
the hedge and the telephone pole, They also trimmed both sides of the hedge,21
The tenant~; of Lot No. 15 (Hofflnan Lot) would mow their lawn up to the same
imaginary line. There was a running joke between the neighhol's disputing the
ownership of the property on which the hedges stood.22
I; N,T, 105, Nonjury Trial.
16 N.T. 122, 125. Nonjury Trial.
17 N.T, 125, Nonjury Trial.
1M N,T, 106, Nonjury Trial.
19 N.T. 109-10, Nonjury Trial.
20 N,T. 109, Nonjllry Trial. The beginning point is noted in the description of the triangle
in the first paragraph,
21 N.T, 110-13, NonJury Trial.
22 N,T. 112. Nonjllry Trilll.
5
[n 1978, new owners purchased Lot No. 16 (Sieehilano Lot).2,1 In the
spring of 1979, the ne..." owners planted a dogwood tree in the (1enter portion oflh(~
disputed triangle's base, They ulso t1reeted un L-shuped, split raill\Jlle-c that run
upproximately six feet in u western direction and six teet in a southern direction,
The fence was erected to prevent snowplows Irom destroying the tree in the
winter.24 The owners of Lot No, 16 (Siechitano Lot) mowed along an imaginary
line connecting the back fence, the hedge and the front fence,25 The fence did not
enclose the entire property, and the Iront of the hedges did not connect with the
, tront, L-shaped fence/6
These owners resided on the property lrom 1978 until 1980,27 During this
time, the hedges did not form a solid wall. There were gaps between the hedges.
The hedges were slow-growing and required little trimming. On occasion, the
owners of Lot No. 16 (Sicehilano Lot) would trim their side of the hedge. The
tenants of Lot No. 15 (Hoffman Lot) maintained their side of the hedge,28
From 1980 until they sold the property in 1990, the owners of Lot No. 16
(Sicehitano Lot) rented their property to a tenant. During this time, according to
the testimony of the housecleuner at Lot No. 16 (Sicchitano Lot), the tenant had a
landscaper mow her lawn and maintain the hedges and various tlowel'beds in the
disputed triangle. The tenants of Lot No. 15 (Hoffman Lot) did not object to the
2J Hoffman Exhibit 2.
24 N.T, 24, Nonjury Trial.
2S N,T. 27-30, Nonjury Trial.
26 N.T. 52-55, Nonjury Trial.
27 N,T. 32, Nonjury Trial.
28 N.T. 40-42, Nonjury Trial.
6
actions of the landscapers, liS (hey did not lIppear to devote much time to the
. I' 'I' I 2')
mallltenancc 0 ,leiI' own lIwn,
In 1990, the tcnunt of Lot No, 16 (Sicchitllno Lot) purchased the property
and became owner.JIJ In 1992, the Homnans purchased Lot No. 15. Initially, they
mowed their luwn up to the imuglnury line connccting thc back (encll, the hedges
und the front lence us well as maintuining thcir sidc of the hedges. In time, the
Hoffmans tl'immed thc entire hcdge once or twice a year. The owner of Lot No.
16 (Slcchitano Lot) prefcrrcd this urrangcment,JI
From the time thc Hommlns purchuscd the properly, lli"Y enjoyed a
friendly relationship with the owner of Lot No. 16 (Sicchitano Lot).n In the winter
of 1993, ralls in thc L-shuped, front fence broke. The Iloffmans replaced the rails,
and the owner of Lot No. 16 (Sicchitano Lot) reimburscd them for the Cl)St of the
rails. In the summer of 1994, the owner of Lot No. 16 (Sicchitllno Lot) lInd the
Hoffmans shared another project concerning the area in dispute. At the back of
the properly, there WllS II drainage problem, and the result was a pool ofwlIter that
gathered on this lIrca. The Hoftomns tixed this problem by installing a scepage
pipe and trench in the area. The Hoffmans completed this project by themselves,
but costs for the project were shared with the owner of Lot No. 16 (Sicchitano
Lot).33 In May of 1995, with the approval of the owner of Lot No. 16 (Sicchitano
1.01), the Hoffmans removed a piece of the hedge that was damaged by the
previous winter's snow and planted a flowcrbed in its place. J4
29 N.T. 134-37, Nonjllry Trial.
30 Hoffman Exhibit 2.
31 N.T. 99, 177-78, Nonjllry Trial.
32 N.T. 178, 183, Nonjllry Trial.
3J N.T. 179-81, Nonjllry Trial.
J4 N.T. 64,149.50,182.83,200, Nonjllry Trial.
7
In 1995, the owner of Lot No, 16 (Sicchitano Lot) died, and Ms. Sicchitano
purchased the lot in August of the same ycar.ll The Ilofflnans continued to mow
only up to the line marked by the hedges and fhlllt Icnce, but also planted two
butterfly bushes along this Iinc.)I, In curly July of 1997, Ms, Sicchitano removed
the two butterfly bushes, put them in plustic bugs und pluced thcm on thc Hofllnan
property, The Hoffmans then rcplanted thc bushcs, Thc next day, Ms. Sicchitano
exchanged words with Ms, Hofflmm and removed /lowers from the Hofflmm
tlowerbed, J7
After these events, on July 31, 1997, the Hoffmans commissioned a survey
of their property.)8 The survey found the disputed area to bc includcd in the
Hoffman Lot. In accordane(~ with these findings, the surveyors marked the comers
of the HotTman property, which includcd the disputed triangle, with four stakes, 19
After the survey, the Hoffmuns continued to trim thc entire hedge and also mowed
up to the new line as demarcated by the survey.40 In August of 1997, the
Hoffmans began parking a truck on the disputed triangle to prevent Ms. Sieehilano
from mowing this areu.4\ Becuuse the truck failed to keep Ms. Sicchitano off the
disputed property, in October of 1997, the Hoffmans took down the fence and
marked their property-which included the disputed triangle-with a yellow rope
35 N.T. 183, Nonjury Trial; Hoffman Exhibit 2.
36 N.T. 183-84,200, Nonjury Trial.
37 N.T. 201-05, Nonjury Trial.
38 N.T. 204, Nonjury Trial.
39 N ,'I'. 184-85, Nonjury Trial.
40 N.T. 186, Nonjury Trial.
4\ N.T. 186-88, Nonjury Trial.
8
lonee.42 Ms. Sicehltano no longer ventured on the disputed triungle to maintain
the laWn, hedges or flowers, <1.1 In February of 1998, Ms. Sieehitano tiled her
statement of adverse pmlsession in the Ol11ce of the Recorder of Deeds in and for
Cumberland County ut Book 172, page 580.44
illS.CUSSION
Sllillalll:llLof Law
Burden of Proof as to Adverse Possession. In Pennsylvania, a purty
claiming the benent of adversc possession bears the buraclI of proof on the issue.
Eslojak v. Mazsa, 522 Pa. 353,357,562 A.2d 271, 273 (1989). "It is well settled
that he who asserts title by adverse possession must prove it affirmatively." Klos v
Molenda, 355 Pa. Super. 399,401,513 A.2d 490. 492 (1986) (quoting Robin V.
Brown, 308 Pa. 123, 129, 162 A. 161, 162 (1932)); see also Conneaut Lake Park
v. Klingensmith, 362 Pa. 562,594-95,66 A.2d 828, 829 (1949).
General Principles Applicable to Acquisition of Title through Adverse
Possession. In Pennsylvania, provision is made by statute for one who claims title
by adverse possession to land and who has been dispossessed of the land to protect
his or her interest by filing a statement of adverse possession. Pa. Stat. Ann. tit.
68, * 81 (West 1901); cf Reed Road Associates v. Campbell, 400 PU. Super. 119,
125,582 A,2d 1373,1375-76 (1990).
In order to uequire land by adverse possession, the claimant must prove thut
possession of the land has been actual, distinct, exclusive, visible, notorious,
continuous and hostile for a period of twenty-onc years. The absence of anyone
element will cause the claim to fail. Niles V. Fall Creek Hunling Club, Inc.. 376
Pa. Super. 260,265, 545 A2d 926, 929 (1988).
42 N.T, 189,209, NOlljury Trial; Hoffman Exhibit 12,
43 N.T. 189,209. Nonjury Trial.
.14 Sicchitano Exhibit 8.
9
Adverse possession is made manifcst by acts "of such charactcr liS Ito]
compell ] the real owncr to takc noticc of thc possession of the disseisor",,"
lIoover v. Jackson, 362 I'll. Super. 532, 537, 524 A.2d 1367, 1369 (1987) (quoting
Parks v, PemMJ'lvanla Railroad Co., 301 I'a. 475, 481-82, 152 A. 682, 684
(1930)). It has been held that actual possession can bc cstablished by a wide
variety of circumstances. Thus, the fhcts of each individual case and the nature of
the circumstallccs detcrmine whether posscssion was actual. Glenn v. Shuey, 407
I'll. Super, 213,221,595 A.2d 606, 611 (1991).
The cxclusive clement docs not require absolute exclusivity, "The exclusive
character of appellees' possession was not destroyed becausc othcr persons
occasionally passcd unobserved over the lot. It was enough that appellees'
possession was to the general exclusion of others and that they relllonstl'llted with
persons who attempted, without permission, to use the land." Reed v. Wo(vniee.
323 Pa. Super. 550, 556,471 A,2d 80, 84 (1983).
To satisfy the notorious clement of adverse possession. acts must be of such
nature that permanent occupation of the land is clearly established. Brouse v,
lIauck, 34 Pa. D & C.3d 563, 565 (Northumberland County 1(82).
The hostile clement docs not imply "ill will" or "hostility" in the usual
sensc. Rather, it implies a clear assertion of ownership rights adverse \0 all others.
In addition, if all other clements of adverse possession are present, hostility may
be implied. SUI/on v. Miller, 405 Pa. Super. 213, 226-28, 592 A.2d 83, 90-91
(1991).
A physical enclosure of a tract can serve to support a claim of advcrse
possession, However, it has been said that
Iw]here an enclosure is relied on to establish adverse possession, it
must be of a substantial character, so as to be a protection against
outside interfcrence in adapting the premises to some suitable use.
An enclosure of the land by." the erection of a brush Icnee, or an
enclosure by stakes, 01' the maintenance of a fence which is
"crooked, rickety and dilapidated" ... is not sufficient.
10
Hoover v. ,Jackson, 362 Pa. Super. 532, 540, 524 A.2d 1367, 1371 (.1987) (quoting
Robin v. Brown, 308 I'll. 123, 127, 162 A, 161, 161-62 (1932)).
Adverse possession lTIay be established by tllcking the claims of successive
oCcupllnts, but only where thcre is privity. Privity rc/ers to the succession of right
to the slime thing. Castronl/ovo v. SO/'doni, 357 I'a, Super. 187, 193,515 A,2d
927, 930 (1986). Additionally, inchoate pl'Operty rights, such liS an interest based
upon continuing adverse possession, lire transferred only if specifically conveyed
in the deed, "The only method by which an adverse possessor may convey the
title asserted by adverse possession is to descl'ibe in the instrument of conveyance
by means minimally acceptable for conveyancing of realty that which is intended
to be conveyed." Baylor v. Soska, 540 Pa. 435, 441, 658 A,2d 743, 746 (1995).
The rationale for this requisite has been explained by the Supreme Court of
Pennsylvania as follows:
If tacking were to be permitted because of vague, undefined
"circumstances," there could and most likely would be no way for
one not a party to the conveyance to know this. But the law
mandates that a person asserting a claim of adverse possession make
this assertion openly and notol'iously to all the world. There must be
no secret that the adverse possessor is asserting a claim to the land in
question.
Id. at 440, 658 A.2d at 745-46,
Lots may be described utilizing means such as courses and distances,
monuments and ~ioinders. Of these three devices, monuments carry the most
authority and ajoinders prevail over courses and distances, I Ladner on
Conveyancing in Pennsylvania ~ 9:04(e) (Clark et a!. cds" 41h cd. rev. 1979). A
plan is functionally equivalent in authority to a monument. Harpel' v. Coleman,
94 Pa. Super. 62, 67 (1928). Thus, a plan is a material and essential part of the
deed when referenced. The plan identifying the lot prevails over erroneous
courses and lines. Goldsmith v. Means, 104 Pa. Super 571,577-78, J58 A. 596,
599, appeal denied, 104 Pa. Super. xxv (1932).
II
Application of Law to Facts
It may be doubtcd whethcr the quality of possession by Ms. Sicchitllno and
her predecessors of the disputed urca rises to the Icvel necessary for lIdwrse
possession. Posscssion ofthe land must be proven to be actual, distinct, exclusive,
visible., notorious, continuous lInd hostile. In the present case, II rather persuasive
argument can be madc that thcsc elemcnts wcrc not definitivcly proven. At times,
the predecessors of Ms, Sicehitano may have exerted a greater effort in the
maintenance of the disputed area than the predecessors of the Hoffmans; however,
the effort exerted by the predecessors of Ms. Sicchitano and the fences crected
appear to have arisen out of Illutual agrecment with the residcnts of Lot No. 15
(Hoffman Lot) and for reasons othcr than an attempt to asscrt dominion over thc
disputed area.
However, a more significant difficulty exists with respect to the validity of
Ms. Sicchitano's claim for adverse possession. Ms. Sicchitano necessarily asserts
that her deed and those of her predecessors purported to encompass the triangle in
question. However, based 011 the facts and law as discussed above, the court is
unable to concur with the proposition that thc property was includcd in the deed of
Ms. Sicchitano.
Thc rules of construction referred to above militate in favor of a contrary
conclusion, notwithstanding the fact that thc description in the deed is somewhat
defective, In none of the deeds in the Sicchitano chain of title did the description
lend itself to a fair reading which encompassed more than the lot as shown on the
subdivision plan, Based upon the principles regarding tacking and privity related
above, Ms. Sicchitano's adverse possession claim cannot be sustained. The
following verdict will therefore be entered:
~ QRDER OF C.OllRI
AND NOW, this \2. day of October, 2000, upon consideration of the action
to quiet title filed by Gayle Sicchitano at No. 98-1940 civil term, and of the action
to quiet title filed by George M. Hoffman and Claire M. Homnan at No. 98-1848
12