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DAVID A. THOMPSON,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
MARTIN L. WELLER and DIANA M.
WELLER, his wife, SCOTT A.
CALAMAN and MELANIE CALAMAN,
his wife,
DEFENDANTS
V.
TIMOTHY SPONSELLER,
ADDITIONAL DEFENDANT
: 98-4410 EQUITY TERM
DECREE NISI
AND NOW, this
It'
day of July, 2000, following an adjudication in equity,
the following decree is entered:
(1) The attac;:hed CORRECTIVE DEED OF EASEMENT shall be forthwith
executed and recorded.
(2) Plaintiffs claim for attorney fees, 15 DENIED. ~_ "
~ou ';
L ~!)o:JJ /
1-17-00
~~~
CORRECTIVE DEED OF EASEMENT
This Corrective Deed of Easement, made this day of , of
the year two thousand (2000), BY AND BETWEEN: MARTIN L. WELLER and DIANA
M. WELLER, his wife, of 58 Feaster Road, Chambersburg, Frankin County,
Pennsylvania, hereinafter known as the "GRANTORS", and DAVID A. THOMPSON, of
R.D. #2, Box 159A, Newville, Cumberland County, Pennsylvania, hereinafter known as
the "GRANTEE."
WIT N E SSE T H:
That in consideration of the sum of One Dollars ($1.00), in hand paid by the
GRANTEE, the receipt of which is hereby acknowledged, the GRANTORS do hereby
grant, bargain and convey unto the GRANTEES, their heirs, executors, successors and
assigns, the free and uninterrupted use of, liberty and privilege over and passage in,
along, under and over a certain parcel of real estate owned by the GRANTORS situate
in Upper Mifflin Township, Cumberland County, Pennsylvania, for the purpose of
installing, maintaining and operating a water drainage facility, together with the
necessary apparatus and equipment which may be used in connection therewith, as is
more fully described in the Right of Way and Easement filed with the Recorder of
Deeds in and for Cumberland County, Pennsylvania, and recorded in Miscellaneous
Book 229, Page 969 on August 2,1977 (hereinafter referred to as the "1977
Easement").
That on December 17, 1990, a Land Subdivision Plan for Martin Weller was filed
in Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, and
recorded in Plan Book 62, Page 4 (hereinafter referred to as the "1990 Subdivision
Plan"). This 1990 Subdivision Plan did not reflect the existence, location or
extinguishment of the 1977 Easement.
That subsequent to the recording of the 1977 Easement and the filing of the
1990 Subdivision Plan, a unilateral Deed of Easement was erroneously filed with the
Recorder of Deeds in and for Cumberland County, Pennsylvania, and recorded in
Miscellaneous Book 406, Page 666 on October 29, 1991 (hereinafter referred to as the
"1991 Easement"). This 1991 Easement incorrectly identified the location, size and
dimensions of the easement as it existed in accordance with the 1977 Easement which
had not been extinguished.
That on February 3, 1992, a Land Subdivision Plan for Martin Weller was filed in
Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, and
recorded in Plan Book 63, Page 146 (hereinafter referred to as the "1992 Subdivision
Plan"). This 1992 Subdivision did not reflect the existence, location or extinguishment of
the 1977 Easement and further incorrectly identified the 1991 Easement as being valid.
That subsequent to the filing of the 1992 Subdivision Plan, additional subdivision
plans were filed in the Office of the Recorder of Deeds in and for Cumberland County,
Pennsylvania, and recorded in Plan Book 67, Page 18 and Plan Book 74, Page 150,
respectively (hereinafter referred to as the "Subsequent Subdivision Plans"). These
Subsequent Subdivision Plans did not reflect the existence, location or extinguishment
of the 1977 Easement and further incorrectly identified the 1991 Easement as being
valid.
That as a result of the apparent cloud on title as pertaining to the location, size
and dimensions of the easement, an action in equity was commenced in the Court of
Common Pleas for Cumberland County as docketed to 98-4410. On February 3, 1999,
the Honorable Edgar B. Bayley, Judge, issued an Order and Opinion which delineated
the location of the 1977 Easement. A true and COfrect copy of Judge Bayley's Order
and Opinion are attached hereto and made a part hereof as Exhibit "A".
That on June 22, 2000, a trial in this matter was commenced before the
Honorable Judge Bayley to resolve the issues surrounding the location of the 1977
Easement, the validity of the 1991 Easement and the ultimate resolution of the dispute
between the GRANTORS and GRANTEE as to their respective property rights. At the
conclusion of the matter, Judge Bayley directed the preparation of a Corrective Deed of
Easement which would (1) acknowledge the validity of the 1977 Easement as
remaining in full force and effect; (2) strike the 1991 Easement; (3) reference and attach
a copy of Judge Bayley's Order and Opinion of February 3, 1999 which set forth the
location of the Easement; and (4) reference and attach a copy of Judge Bayley's Order
of which is incorporated herein to resolve the dispute
between GRANTORS and GRANTEE with respect to their property rights.
THEREFORE, in accordance with the directive of Judge Bayley as set forth on
June 22, 2000, this Corrective Deed of Easement shall serve to satisfy the following
purposes:
(1) The 1977 Easement as recorded in Miscellaneous Book
229, Page 969, shall ramain in full force and effect as the
valid and controlling easement between the GRANTORS
and GRANTEE;
(2) The 1991 Easement as recorded in Miscellaneous Book
406, Page 667, is hereby stricken and removed from the
record and shall be construed as if never filed:
(3) The Subdivision Plans filed of record in Cumberland County
at Plan Book 63, Pages 146-1460, Plan Book 67, Pages 18-
18A and Plan Book 74, Pages 150-150C, inaccurately depict
the size and location of the Right of Way and Easement as
granted to David A. Thompson and filed in Cumberland
County at miscellaneous Book 229, page 969.
(4) The Opinion and Order of Judge Bayley dated February 3,
1999 shall be incorporated into this Corrective Deed of
Easement as both establishing the validity of the 1977
Easement and establishing the location of such easement;
and
(5) The Order of Judge Bayley dated____m____...,
resolves the dispute between GRANTORS and GRANTEE
with respect to their property rights at issue in the equity
action docketed to 98-4410.
It is intended that the permanent right-of-way and easement shall be of the
width, dimension and location as shown on the 1977 Easement, and that subsequent
subdivision plans that include this area correctly identify and reference the existence of
the easement.
TOGETHER with the right, from time to time, to remove the said line and
equipment, with the right of free ingress, egress and regress for the GRANTEES, their
servants, agents and employees, and such other persons as they may authorize and
direct in and along the same at all times hereafter, in common with the GRANTORS,
their heirs, executors, successors, assigns and administrators, and tenants and
occupiers of the said ground, for the purpose of repairing, maintaining, renewing and
cleaning the said line, with the right to dig and construct such ditches, trenches and
openings with the said right-of-way as may be necessary for the said purpose, and
together with the right of entry upon the GRANTORS' land for the purposes aforesaid.
RESERVING, NEVERTHELESS, unto the GRANTORS, their heirs, executors,
successors and assigns, the right to use the said real estate for so long and insofar and
to such extent as the use thereof will not enlarge or diminish GRANTORS' rights with
respect to their use of the servient estate as set forth in the 1977 Easement or will in
any manner interfere with, damage or affect the operation or use of the water drainage
facility of the GRANTEES, and the GRANTORS do hereby covenant and agree that
they will not endanger or interfere with the operation of the said water drainage facility
of the GRANTEES.
TO HAVE AND TO HOLD, all and singular, the premises, rights and privileges
hereby granted or mentioned or intended to so be, with the appurtenances, unto the
GRANTEES, their heirs, executors, successors and assigns, to the only proper use and
behalf of the GRANTEES, their heirs, executors, successors and assigns, forever.
(Remainder of page intentionally left blank)
98.4410 EQUITY TERM
View Lane where it passes over his drainage easement.2 A hearing was conducted
on January 13, 1999.
A four inch plastic pipe runs underground from the home of plaintiff to his
southern property line, then under Middle Road, and then under the Wellers' property.
The pipe directs water that collects on Thompson's property and discharges it into his
drainage easement on the Wellers' property. The system keeps the basement of
Thompson's home from flooding in wet weather. As shown on a survey prepared by
Samuel Runyon, a surveyor who testified for defendants, the drainage pipe going
under Middle Road from plaintiff's property does not enter the Wellers' property within
the 350 feet of the northern boundary of the drainage easement that he depicts as
starting 700 feet east at a railroad spike at the northeast corner of the graveyard. The
survey shows that the part of Mountain View Lane that the Wellers constructed over
the pipe on their land is not within plaintiff's drainage easement.
Steven Fisher, a surveyor who testified for plaintiff, could not locate a railroad
spike shown on Runyon's survey at the northeast corner of the eastern line of the
graveyard as a point 700 feet east of the starting point of the drainage easement.
Weller did a survey that shows an area within the graveyard property where there is a
fence surrounding graves. The remainder of the graveyard is vacant land. Fisher
measured from the eastern fence line of the graves rather than the eastern title line of
the graveyard to the center line of Mountain View Lane. That distance is 717 feet
2. Pa. Rule of Civil Procedure 1531.
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98-4410 EQUITY TERM
which puts the center line of Mountain View Lane 17 feet east of the western line of
plaintiff's drainage easement, and which means that the Wellers have built Mountain
View Lane over the drainpipe at a point within the drainage easement. Accordingly,
whether Mountain View Lane is located over the drainage pipe at a point within or
without plaintiff's drainage easement on the Wellers' property depends on the starting
point of the Right-af-Way And Easement which was measured in the 1977 document
"[a]t a point 700 feet southeast of the graveyard. . . as is more fully set forth on the
sketch attached to this Right of Way and Easement and incorporated herein."
We took the testimony of Harold E. Ickes over the objection of defendants that
it violated the parol evidence rule. Ickes testified that he negotiated the drainage
easement with Frank Butler so that he could drain water from his land into a pipe to
keep his basement from flooding. He put in the pipe himself even before he, his wife
and Butler signed the Right-af-Way And Easement agreement. Ickes testified that he
measured the starting point of the easement 700 feet east of the fence line in the
graveyard, not the title line. Thus, when he constructed his pipe under Butler's
property, it was within the drainage easement. After the pipe was in, Ickes' attorney
drafted the Right-af-Way And Easement to which the sketch was attached and which
Butler and the Ickeses signed and recorded.
A written agreement may not be contradicted by parol unless it is proved by
clear, precise and indubitable evidence that a portion of the writing was either omitted
or misstated as a result of either fraud, accident or mistake. Gianni v. R. Russell &
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98-4410 EQUITY TERM
Co., Inc., 281 Pa. 320 (1924). In Wyslnski v. Mazzotta, 325 Pa. Super. 128 (1984),
the Superior Court of Pennsylvania stated:
In the absence of fraud, accident or mistake, the nature and
quantity of the real estate interest conveyed must be ascertained from
the deed itself and cannot be shown by parol. Covert Appeal, 409 Pa.
290,295,186 A.2d 20, 23 (1962); Highland v. Commonwealth, 400 Pa.
261, 283, 161 A.2d 390, 402 (1960), cert. denied, 364 U.S. 630, 81 S.Ct.
357,5 L.Ed.2d 363 (1961); Johns v. Castellucci, 264 Pa.Super. 591,
596, 401 A.2d 753, 755 (1979). When the language of the deed is clear
and free from ambiguity, the intent of the parties must be determined
from the language of the deed. Teacher v. KiJurna, 365 Pa. 480, 486,
76 A.2d 197,200 (1950); Detwiler v. Coldren, 311 Pa. 44, 49,166 A.
374, 375 (1933); South Connellsville Borough, Inc., 47 Pa.Super. 350,
365 (1911). With respect to unambiguous deeds, a court must ascertain
what is the meaning of the words used, not what may have been
intended by the parties as shown by parol. Covert Appeal, supra, 409
Pa. at 295, 186 A.2d at 23; Highland v. Commonwealth, supra, 400 Pa.
at 283, 161 A.2d at 402; Kimmel v. Svonavec, 369 Pa. 292, 295, 85
A.2d 146, 148 (1952); Johns v. Castellucci, supra 264 Pa. Super. at
596, 401 A.2d at 755. To permit a variation of a deed description which
is complete and unambiguous on its face, there must be evidence of a
mutual mistake which is clear, precise and convincing. Central
Transportation, Inc. v. Board of Assessment Appeals, 490 Pa. 486,
494,417 A.2d 144, 147-148 (1980); In re Estate of Kostelnik, 471 Pa.
94, 99, 369 A.2d 1211, 1213 (1977). If there is mistake which is
unilateral and not caused by fault of the other party, but due to the
negligence of the one who acted under mistake, there is no basis for
relief. McFadden v. American Oil Co., 215 Pa.Super. 44, 53-54, 257
A.2d 283, 288 (1969).
In Baker v. Zingelman, 259 Pa. Super. 441 (1978), the Zinglemans sold a part
of their property to Baker. Both parties believed that a barn on the property that was
being conveyed to Baker cleared the land being retained by the Zingelmans. Four
years later, it was discovered that part of the barn remained on the Zinglemans'
property. The Zinglemans demanded that Baker remove that part of the barn or
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98.4410 EQUITY TERM
purchase from them a strip of property that would clear up the location problem of
the building. Baker instituted a suit in equity to enjoin the Zinglemans from using the
portion of the barn which was shown to be on Baker's deed, and from destroying any
part of the barn. The trial court issued the injunction and directed the Zingelmans to
convey to Baker the land which would place the entire building on Baker's property in
order to effectuate the original intent of the parties in their conveyance. On appeal,
the Zinglemans argued that the trial court erred in permitting the use of parol
evidence to determine the intent of the parties where the language in the deed was
clear on its face. The Superior Court stated:
'It is a general proposition of equity that when a person grants a thing,
he intends to grant also that without which the thing cannot be enjoyed.
We must assume the parties intended a reasonable result.' The
description in the deed book before us was not prepared by a
professional engineer, but by appellant. . .. There very easily could
have been a mistake or ambiguity in the deed concerning the
description, regardless of the omission of the word 'building.' Where
such an ambiguity exists, the surrounding circumstances may be
considered to determine the intent of the parties, and the subsequent
acts of the parties are important to manifest their intentions. The actions
of the parties subsequent to the deed were that the Bakers moved into
the farmhouse and operated the antique shop in the barn. They
obviously relied on the deed as having conveyed to them their interest in
the property and in the buildings. . .. (Citations omitted.)
The Superior Court affirmed the order of the trial court which stated "[t] hat the
appellant intended to convey sufficient footage to cover the house, barn, and related
buildings to her sister and her husband at the time of the original deed in 1971." In a
concurring opinion, Judge Speath stated:
I submit that the majority treats 'ambiguity' and 'mistake' as
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9B-4410 EQUITY TERM
feet from the fence line of the graves in the graveyard rather than from the title line of
the cemetery to determine the starting point of the drainage easement along Mt.
Hope Road, and (4) using that measurement resulted in the drainpipe coming onto
Butler's property within the area that the parties had negotiated the drainage
easement, it is apparent that the recorded Right-Of-Way And Easement does not
accurately depict the actual western line of the drainage easement. Based on this
evidence, plaintiff has proven by clear, precise and convincing parol evidence that
Mountain View Lane crosses over his drainage pipe at a point within his drainage
easement and that the location of the easement is misstated in the recorded Right-Of-
Way And Easement.
In T.W. Phillips Gas and Oil Co. v. Peoples Natural Gas Co., B9 Pa,
Commw. 377 (19B5), the Commonwealth Court set forth the well-established
standards necessary for the issuance of a preliminary injunction:
A court may grant a preliminary injunction only where the moving
party establishes the following familiar elements: (1) the relief is
necessary to prevent immediate and irreparable harm which cannot be
compensated by damages; (2) greater injury will occur from refusing the
injunction than from granting it; (3) the injunction will restore the parties
to the status quo as it existed immediately before the alleged wrongful
conduct; (4) the alleged wrong is manifest, and the injunction is
reasonably suited to abate it; and (5) the plaintiff's right to relief is clear.
(Citation omitted.)
A servient owner may make any reasonable use of land encompassed in an
easement which does not interfere with the dominant owner's easement. Graham v.
Safe Harbor Water Power Corp., 315 Pa. 572 (1934). Plaintiff herein testified that he
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98-4410 EQUITY TERM
is concerned that the vehicular use of Mountain View Lane will crush his drainage
pipe and cause water to back into his basement. He testified that a tenant on the
Wellers' property other then the Calamans has been driving heavy trucks over
Mountain View Lane. Martin Weller is a contractor, and he testified that the drainage
pipe is approximately four feet under the ground that is covered with approximately
eight inches of shale and two inches of 2A modified. The lane was completed on
July 11, 1998. Some of defendants' fields are used for crops, and before Mountain
View Lane was constructed farm machinery was driven on the ground that is above
the drainage pipe to get to those fields. Mountain View Lane has not impeded water
from being discharged through the drainage pipe onto the land in plaintiff's drainage
easement.
Due to the limited amount of evidence as to the risk of crushing the drainage
pipe from the use of Mountain View Lane, we are not satisfied that plaintiff has shown
at this point that he is suffering immediate and irreparable harm which cannot be
compensated in damages without an injunction being issued prohibiting defendants
from using the lane where it passes over the drainage easement. Accordingly, we will
deny plaintiff's motion for the issuance of a preliminary injunction. Evidence can be
presented during the adjudication as to whether the use of Mountain View Lane in its
current condition (1) is reasonable, (2) does not and will not interfere with plaintiff's
easement, and (3) if it will interfere with the easement what remedies should be
.9.
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DA VID A. THOMPSON.
Pluintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY.I'ENNSYLV ANIA
CIVIL ACI'ION - EQUITY
v.
MARTIN L. WELLER und DIANA M.
WELLER, his wife, SCOTT A. CALAMAN :
und MELANrE CALAMAN, his wife, (I
Defendunts NO. 'j'i - <{ '-II 0 c~ 7t...~
COMPLAINT
AND NOW, comes the Pluintiff, Duvid A. Thompson, by und through his uttorneys, Murtson.
Deurdorff, WilliulU~ & Otto, and hereby uvers us follows:
PARTIES
I. Pluintiff is David A. Thompson, un udult individuul, residing ut 631 North Middle
Road, Upper Mifflin Township, Cumberlund County, Pennsylvania.
2. Defendants Murtin L. Weller and Dianu M. Weller, husbund and wife, are adult
individuals residing at 58 Feaster Roud, Chambersburg, Franklin County, Pennsylvania.
3. Defendants Scott A. Calamun and Melunie Caluman, his wife, are adult individuals
residing at 6 Mountain View Lune, Upper Mifflin Township, Cumberland County, Pennsylvaniu.
4. Plaintiff is the owner of severul tracts of real property located in Upper Mifflin
Township, Cumberland County, Pennsylvania, more fully described in a deed dated October 21, 1981
and recorded at Cumberland County Deed Book 38 "R", Page 1034. A copy of said deed is attached
hereto as "Exhibit A."
5. Defendants Murtin L. Weller and Diana M. Weller (the "Wellers"), husband and wife,
are the owners of tracts of real property located in Upper Mifflin Township, Cumberland County,
Pennsylvania, more fully described in a deed dated December 28, 1990 and recorded at Cum!Jerland
County Deed Book 34 "Y", Page 45. A copy of said deed is attached hereto as "Exhibit B."
6. Defendants Scott A. Calaman and Melanie Calaman, husband and wife, occupy a
parcel of property owned by Defendants Martin L. Weller and Diuna M. Weller in Upper Mifflin
"
Township. Cumberland County. Pennsylvania. known as Lot Number 14 of a sulxlivision of Martin
L. Weller.
JlACKf;ROlIND
7, [n an agreement dated July 30. 1977. Frank R. Butler (prede(;essor in title to
Defendants Martin L. Weller and Diana M. Weller, his wife) granted to Harold L. kkes and Barbara
A. Ickes, his wife (predecessors in title to Plaintiff David A. Thompson), and their heirs and assigns,
a "right of way and casement" over a portion of the Butler Tract for the purposes of constructing,
maintaining, and replacing "a drainage system" thus benefitting the Ickes lra(;t (the "[ 977
Agreement").
X. Said right of way and easement agreement was recorded at Cumberland County
Miscellaneous Book 229, Page 969. A copy of said agreement is attached as "Exhibit C."
9. Said right of way and easement agreement described the boundaries of the drainage
easement as follows:
Said drainage area commences at a point 700 feet southeast of the
graveyard and extending along the northern boundary of the said tra(;t
of land some 350 feet and extending into the said tract of land
approximately 700 feet as is more fully set forth on the sketch
attached to this Right of Way and Easement [Agreement] and
incorporated herein.
10. In reliance upon the 1977 Agreement, Harold L. Ickes and Barbara A, Ickes, his wife,
constructed a drainage pipe from his property across Middle Road and into the easement area for
purposes of draining run-off water.
11. On September 14. 1977, Harold 1. Ickes and Barbara A. Ickes, his wife, conveyed
their tract of land to David A. Thompson and Sandra 1. Thompson, his wife, title now being vested
in David A. Thompson, Plaintiff herein, by deed recorded at Cumberland County Deed Book 38 "R",
Page 1034,
12. In acquiring the tract of land from Harold L. Ickes and Barbara A. [ekes, David A.
Thompson also acquired the rights in the drainage easement area benefitting that tract of land as
described in the 1977 Agreement.
~
13. Pluintiff Duvid A. Thompson hus continu;i1ly used the drainuge euscmcnt meu sincc
the installation of the drainuge pipe and reservcs thc right to utilize the druinage arcu in the future for
purposes consistent with the casement.
14. On Deccmber 2X, 1'!90, Frank R, Butlcr conveyed his truct of lund to Defendunts
Martin L. Wcller and Diana M. Weller, his wife. by deed recorded ut Cumberland County Deed Book
34 "V", Page 45.
IS. Upon acquiring the Butler Tract, the Wellers begun obtaining the approvals necessury
to subdivide the truct with the intention of conveying the subdivided purcels to third parties for the
construction and/or installation of single family homes or mobile homes.
16. In the course of obtaining subdivision upprovul. the Wellers recorded severul
subdivision plans for the Butler Tract. Subdivision pluns have been recorded at the following:
Cumberlund County Plan Book 62, Page 4; Cumberlund County Plan Book 63, Page 146;
Cumberland County Plun Book 67, Page I X; and Cumberlund County Plan Book 74, Page ISO.
17, On the first subdivision plan dated Muy 1990 und recorded at Cumberland County
Plan Book 62, Page 4, the Wellers failed to acknowledge the existence of the drainuge easement area
benefitting the tracts owned by Plaintiff David A. Thompson as described in the 1977 Agreement.
A copy of the subdivision plan is attached us "Exhibit D."
18. On October 29, 1991, the Wellers recorded a Deed of Easement dated October 25,
1991, at Cumberland County Miscellaneous Book 406, Page 666 (the "1991 Agreement"). A copy
of the Deed of Easement is attached as "Exhibit E."
19. The 1991 Agreement was not executed by David A, Thompson nor was David A.
Thompson notified of its drufting or recordation.
20. The 1991 Agreement expressly attempts to unilaterally supersede the 1977 right of
way and easement agreement between Frunk R. Butler and Harold L, Ickes and Barbara A. Ickes, his
wife, and replace the large drainuge area as described in the 1977 Agreement with a narrow fifty foot
wide easement surrounding David A. Thompson's existing drainage pipe.
.
21. Ilecause David A. Thompson never agreed to the terms of the IYY I Agreement. this
Agreement is invalid and the rights of David A. Thompson in the drainage area as described in the
)Y77 Agreement remain unaltered and have not been superseded.
22. On February 3. IYlJ2. November 5. IYY3. and June 30. IYY7, the Wellers recorded
additional subdivision plans for the Butler Tract at Cumberland County Plan Book (,3, Page 14(,;
Cumberland County Plan Book (,7. Page IX; and Cumberland County Plan Book 74. Page 150,
locating the new fifty foot wide drainage easement per the IYY I Agreement on the plan and failing
to identify the large drainage area described in the IY77 Agreement. Copies of these subdivision
plans are attached as "Exhibit F."
23. The subdivision plans falsely and fraudulently state that the fifty foot wide drainage
easement was created through an agreement between David A. Thompson and Martin L. Weller when
David A. Thompson never entered into such an agreement.
24. Plaintiff David A. Thompson believes. and therefore avers. that the Wellers
intentionally, fraudulently. and maliciously drafted, executed. and recorded the IYY 1 Agreement in
an attempt to deprive him of his rights in the drainage easement area and to unilaterally replace the
drainage easement area with a narrow drainage path.
25. Plaintiff David A. Thompson believes, and therefore avers, that the Wellers attempted
to deprive him of his rights in the drainage easement area in order to ease the subdivision approval
process and to improve the marketability of the lots to be created by the subdivision of their tract.
26. Plaintiff David A. Thompson believes, and therefore avers. that the Wellers
intentionally, fraudulently. and maliciously recorded the subdivision plans falsely stating that Plaintiff
David A. Thompson had agreed to the 1991 Agreement and failing to show the existing drainage
easement area as described in the 1977 Agreement in an attempt to deprive him of his rights in the
drainage easement area and to unilaterally replace the drainage easement area with a narrow drainage
path.
27. Plaintiff David A, Thompson has been specially damaged by the false and misleading
statements in the recorded 1991 Agreement and the subdivision plans by being deprived of his
recorded property rights in the drainage easement area and by being subjected to a cloud on his title.
.
2X. In June 199X, the Wellers began constructing a road for ingress and egress to Lots 12.
13. and 14 of the Weller subdivision from Middle Road across and through the existing drainage
easement area as described in the 1977 Agreement. This road is known as "Mountain View Lane."
29. Mountain View Lane passes through the drainage easement area and over the existing
drainage pipe installed by David A. Thompson pursuant to the 1977 Agreement.
30. The existence of Mountain View Lane or any other road or structure is inconsistent
with the purposes of the drainage easement and substantially impairs the present and future use of the
drainage easement area by Plaintiff David A. Thompson by depriving him or the ability to install,
maintain. or repair the existing drainage system or to install another drainage system.
31. On or about July II. 199X. the Wellers completed construction of Mountain View
Lane across the drainage easement area and pipe for use by residents of Lots 12, 13, and 14 of the
Weller subdivision.
32. The WeUers intentionally and maliciously constructed Mountain View Lane over the
drainage easement area knowing that they were intentionally interfering with Plaintiff David A.
Thompson's reasonable use of the drainage easement area and drainage pipe.
33. The occupiers of Lot Number 14, the Calamans. have been intentionally using
Mountain View Lane to gain access to Middle Road knowing that they are interfering with Plaintiff
David A. Thompson's reasonable use of the drainage easement area and drainage pipe.
34. The use of Mountain View Lane substantially interferes with the use and enjoyment
of the drainage easement area by Plaintiff David A. Thompson and could potentially damage the
existing drainage pipe.
35. The substantial and unreasonable interference with the use and enjoyment of the
drainage easement area constitutes irreparable harm for which no adequate remedy at law exists,
.
COUNT I
ACTION TO DETERMINE V ALIIJITY OF 1991 DImD OF EASEMENT
AND SUBDIVISION PLANS AND TO COMPEL CANCELLATION
OF RECORDED DOCUMENTS
(Against Martin L. Weller and lJiana M. Weller, his wife)
36. The allegations contained in parugruphs I through 35 are incorporuted herein as if fully
set forth.
37. The Deed of Easement dated October 25,1991 and recorded at Cumberland County
Miscellaneous Book 406, Page 666 (attached hereto as "Exhibit E"), is invalid as a unilateral
agreement that attempts to fraudulently deprive Plaintiff David A. Thompson of his rights in the
drainage easement granted to his predecessors in title in an agreement dated July 30, 1977 ,md
recorded at Cumberland County Miscellaneous Book 229, Page 969.
38. Plaintiff David A. Thompson continues to enjoy the right to use a portion of the land
of Defendants Martin L. Weller and Diana M. Weller as a drainage area under the agreement dated
July 3D, 1977 and recorded at Cumberland County Miscellaneous Book 229, Page 969.
39. The subdivision plans recorded at Cumberland County Plan Book 62, Page 4;
Cumberland County Plan Book 63, Page 146; Cumberland County Plan Book 67, Page 18; and
Cumberland County Plan Book 74, Page 150 (attached hereto as "Exhibits D and P'), are invalid as
incorrectly removing the drainage easement as described in the agreement dated July 30, 1977 and
recorded at Cumberland County Miscellaneous Book 229, Page 969, and replacing it with a fifty foot
wide right-of-way referencing to the invalid unilateral Deed of Easement dated October 25, 1991 and
recorded at Cumberland County Miscellaneous Book 406, Page 666.
40. The said subdivision plans are invalid because they falsely and fraudulenlly fail to show
the location of the existing drainage easement, show the location of an invalid drainage easement to
which the parties never properly agreed, and state that David A. Thompson agreed to the creation
of a fifty foot wide right-of-way when in fact he never agreed to the creation of this right-of-way or
to the elimination of the perpetual drainage easement created by the agreement dated July 3D, 1977
and recorded at Cumberland County Miscellaneous Book 229, Page 969,
.
41. These invalid do~uments, all re~orded in the Ofti~e of Re~order of Deeds in and for
Cumberland County, have pla~ed a cloud on Plaintiffs title for whkh there is no adequute remedy
at law.
WHEREFORE, Plaintiff David A. Thompson requests that this Court:
a. Declare the Deed of Easement dated O~tober 25, 1991 und re~orded at Cumberlund
County Mis~ellaneous Book 406. Page 666, invulid;
b. Declare the subdivision plans re~orded at Cumberland County Plan Book 62, Page 4;
Cumberland County Plan Book 63, Page 146; Cumberland County Plan Book 67,
Page IX; and Cumberland County Plan Book 74, Page ISO invalid;
c. Order Defendants to file appropriate do~uments ~an~eling and/or correcting said
invalid do~uments;
d. Award Plaintiff punitive damages. attorneys fees. and ~osts associated with bringing
this action, plus any other relief this Court deems appropriate.
COUNT II
ACTION TO ENJOIN INTERFERENCE WITH EASEMENT
(Against All Parties)
42. The allegations contained in paragraphs I through 41 are incorporated herein as if fully
set forth.
43. Plaintiff David A. Thompson, by virtue of his ownership of several tracts of land
described in a deed recorded at Cumberland County Deed Book 38 "R", Page 1034, holds an
easement and right-of-way over a portion of the land described in Cumberland County Deed Book
34 "Y", Page 45, now owned by Martin L. Weller and Diana M. Weller, his wife, to "construct.
maintain, and replace a drainage system."
44. Plaintiff David A, Thompson has gained his rights in the said right of way and drainage
easement through an agreement recorded at Cumberland County Miscellaneous Book 229, Page 969.
.
45. Because the easement area has been dedicated for use as a drainage are.l, the
construction of any road or structure in the drainage easement area would constitute a substantial and
unreasonable interference with Plaintiffs use of the easement area.
41i. The existence and use by Defendants of the road now constructed over and through
the drainage easement area, known as Mountain View Road. constitutes a substantial and
unreasonable interference with Plaintiffs current and future use of the easement area.
47. The existence and use of any road or structure in the drainage easement area would
substantially and unreasonably prevent the repair, maintenance, and future construction of drainage
system(s) as may be deemed necessary by Plaintiff or his successors in title.
48. The exL~tence and use of Mountain View Road as it passes over the existing drainage
pipe constitutes a substantial and unreasonable interference with Plaintiff's repair, maintenance, and
use of the pipe for drainage purposes.
49. The Wellers intentionally and maliciously constructed Mountain View Lane over the
drainage easement area knowing that they were intentionally interfering with Plaintiff David A.
Thompson's reasonable use of the drainage easement area and drainage pipe.
50. The occupiers of Lot Number 14, the Calamans, have been intentionally using
Mountain View Lane to gain access to Middle Road knowing that they are interfering with Plaintiff
David A. Thompson's reasonable use of the drainage easement area and drainage pipe,
51. The existence and use of Mountain View Road has caused and continues to cause
irreparable harm to Plaintiff David A. Thompson and his property rights.
52. The occupiers of Lot Number 14 (the Calamans) and the Wellers can gain access to
their tracts on another road within the Weller subdivision without crossing over the existing drainage
pipe or through the drainage easement area.
53. Given that the property rights of David A. Thompson are being effected by the
existence and use of a structure in the drainage easement area, there is no adequate remedy at law.
WHEREFORE, Plaintiff David A, Thompson requests that this Court:
'.
a. Permanently enjoin Defendants from using Mountain View Road as it passes through
the drainage easement area as described in the agreement recorded at Cumberland
County Miscellaneous Book 22<), Page lJ6<);
b. Permanently enjoin Defendants Martin L. Weller and Diana M. Weller. his wife, from
constructing any structure or road inlhe drainage easement area as described in the
agreement recorded at Cumberland County Miscellaneous Book 229. Page 969;
c. Order Defendants Martin L. Weller and Diana M. Weller, his wife, to remove all fill
and construction materials supporting Mountain View Road from the drainage
easement area and return the drainage easement area to its natural state;
d. Award Plaintiff punitive damages. attorneys fees, and costs associated with bringing
this action, plus any other relief this Court deems appropriate.
COUNT III
ACTION IN DISPARAGEMENT OF TITLE
(Against Martin L. Weller and Iliana M. Weller, his wife)
54. The allegations contained in paragraphs I through 53 are incorporated herein as if fully
set forth.
55. On October 29,1991, Defendants Martin L. Weller and Diana M. Weller, his wife,
intentionally, fraudulently, and maliciously drafted, executed, and recorded the 1991 Deed of
Easement at Cumberland County Miscellaneous Book 406, Page 666, in an attempt to deprive David
A. Thompson of his rights in the drainage easement area and to unilaterally replace the drainage
easement area with a narrow drainage path.
56. Defendants Martin L. Weller and Diana M. Weller, his wife, intentionally, fraudulently,
and maliciously recorded the subdivision plans falsely showing that the drainage easement as'
described by the 1997 Agreement had been replaced by a narrow drainage path and falsely stating that
Plaintiff David A. Thompson had agreed to 1991 Deed of Easement in an attempt to deprive him of
his rights in the drainage easement area and to unilaterally replace the drainage easement area with
a narrow drainage path.
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MADB THB ~/'Sr, Ml/ol (fJrkw In u.. ~e.r
01 our Lord """ U'O....nd Ill... hundred tI&M~-- rmL- (jifg-, )
BETWBEN DAVID A. THOMPSON and SANDRA L. TII0l1PSON of Newville,
Cumberland County, Pennsylvania, hereinafter called the
~,:_' ~':."~'~I ./ j l,:' ,,'!I:.~ ,:-:";' ;.>''1'' i.. \r:~~j'"
Granlor s,
.nd
DAVID A. THOMPSON, of R. D. 2, Box l59A, Newville, PA,
GroIlUO :
WITNESSETH, that jn OO1I8Idtralloll .,
----ONE and DO/lOa ($l.OO)-------------______________________________DoUarr,
In /land paid, U10 rocaipl where.' II Ml"ebv ackMwkdgad, u.. aaId /Ira""" s M h..ebl/ /1f1UIt
.nd OOllVOJI eo Ilia ,aid /IranI., ,
ALL THOSE CERTAIN tracts of land situated in Upper MIfflin Township,
Cumberland County, Pennsylvania, more particularly bounded and des-
cribed as follows:
TRACT NO. 1 - BEGINNING at a point in Township Road 402, which point
Is 270 feet northwest from a common corner with londs of Robert
G. Zimmerman, et ux, 'and the SChoor"oistr[ct,. of Big Spring; thence
by Tract No.2 herein; being 'the western half of Lot No.2 on the
Plan of Lots of Robert G. Zimmerman, et ux, North 25 degrees 29
minutes 'east, 200 feet to an iron pinj thence by other lands of
Robert G. Zimmerman, et ux, North 67 degrees 30 minutes west, 100
feet to an iron pin at corner of Lot No. 4 of said Plan, now of
the Grantor f thence by Lot No.4, South 25 degrees 29 minutes west,
200 feet to a point in the center of the aforesaid Township Road;
thence by the center of said Road, South 67 degrees 30 minutes east,
100 feet to the place of BEGINNING.
BEING Lot No.3 on the Plan of Lots of Rober.t G. Zimmerman, et ux,
as recorded in the Office of the Recorder of Deeds of Cumberland
County in Plan Book 13, page 32. .
UNDER AND SUBJECT to restrictions'as set forth in the Deed of Robert
G. Zimmerman, et UK, to Harold'L.;.Ickes, et UK, recorded in Deed
'B'ook URn, Vol,'. 20, page.833. I:).\~~I',-'.:.
TRACT ND. 2,- BEGINNING ,at a;point,in"the center of Township Road
402, which point' is 220'feet'"northwest,froma common corner with
lands of Robert"G':""Zimmerman.,_et'ux','cand'land of the Big Spring
School Dis'trict i t.hence by lands of Robert G. Zi.mmerman, et ux,
North 25 degrees 29 minutes East, 200 feet to other ,lands of Robert
G. Zimmerman, et UK; thence by the same North 67 degrees 30 minutes
west, 50 feet. tathe corner of Lot, No.3 ,of the hereinafter-ment5.oned
Plan of LotSj thence along Lot No..3, South 25 degrees 29 minutes
west, 200 feet to a point. in the center of the aforesaid 'Township
Road; thence along the center line'of said Township Road 402, South
67 degrees 30 minutes east, 50 feet to the place of BEGINNING.
. .. .
BEING the western fifty, (50) feet Of Lot No. 2 of the Plan of Lots
of Robert G;'Zimmerman, et ux, recorded in the Cumberland County
Recorder of Deed's Office in Plan Book ,13, Page 32.
UNDER AND SUBJECT to the restrictions as set forth in Deed Book
IIC", Vol. 24, page 277.
BEING the same premises which Harold L. Ickes and BarbaraA. Ickes,
his wife, by deed dated September 14, 1977 and recorded in the Office
.
"
/
.
COTHY S. SPONSELLER
anOANlY AT LAW
:HAlnCItIllUIlCl TRUst ILOCl.
rANUlllaUACI, P^ 17201
71711.Nn'
DEED OF EASEMENT
THIS DEED OF EASEMENT, made this r:;;(~ day of (Qlobt!:~
nineteen hundred ninety-one (1991), BY AND BETWEEN I HARTIN L. WELLER and
DIANA H. WELLER, his wife, of 58 Feaeter Road, Chambereburg,'Franklin county,
Pennsylvania, hereinafter known as the GRANTORS, ~ DAVID A. THOMPSON and
DOROTHY J. THOMPSON, his wife, of R. D. .2, Box lS9A, Newville, Cumberland
county, Penneylvania, hereinafter known ae the GRANTEES.
WIT N E SSE T HI
That in consideration of the sum of One ($1.00) Dollar, in hand paid by
the GRANTEES, the receipt whereof ie hereby acknowledged, the GRANTORS do
hereby grant, bargain and convey unto the GRANTEES, their heirs, executors,
euccessors and assigns, the free and uninterrupted use of, liberty and
privilege over and passage in, along, under and over a certain parcel of real
estate owned by the GRANTORS situate in Upper Mifflin Township, Cumberland
County, Pennsylvania, for the purpose of installing, maintaining and operating
a water drainage facility, together with the necessary apparatue and equipment
which may be used in connection therewith, as is more fully described on the
plat hereto attached and made a part hereof, marked "Exhibit "A".
It is intended that the permanent right-of-way shall be of the width
shown on the plat, and that during the construction of the said line, a
temporary construction right-of-way shall be such additional width as shall be
shown on said plat, if any.
TOGETHER with the right, from time to time, to remove the said line and
equipment, with the right of free ingress, egress and regrese for the
GRANTEES, their servants, agents and employees, and such other pereons as they
may authorize and direct in and along the same at all times hereafter, in
common with the GRANTORS, their heirs, executors, successors, assigns and
administrators, and tenants and occupiers of the eaid ground, for the purpose
of repairing, maintaining, renewing and cleaning the said line, with the right
to dig and construct euch ditches, trenches and openings with ths said
right-of-way ae may be neceesary for the said purpose, and together with the
right of entry upon the GRANTORS' land for the purposes aforesaid.
RESERVING, NEVERTHELESS, unto the GRANTORS, their heirs, executors,
successors and assigns, the right to use the surface of the said real estate
for so long and insofar and to such extent as the use thereof will not in any
wise interfere with, damage or affect the operation or use of the water
drainage facility of the GRANTEES, and the GRANTORS do hereby covenant and
agree that they will not erect or permit the erection of any building or plant
any trees or shrubs on the right-of-way after the execution and delivery of
this Agreement which will endanger or interfere with the operation of the said
water drainage facility of the GRANTEES. '
BOOK 40() f'AGE GGf;
/"
//
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF FRANKLIN Il
on this c:<s{..~ day of Mlobc:;c.) , 1991, before me, a Notary
public in and for said state and county, personally appeared Martin L. Weller
and Diana H. Weller, his wife, known to me (or satisfactorily proven) to be
the persons whose namss are subscribed to the within instrument, and
acknowledged that they executed the same for the purposes thsrein contained.
WITNESS my hand and
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t.1<.:m~r. pcn:;!;yl'tilnia A')SOCla'.ion 01 N:'~~~lCS
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Slate of Pennsylvania }
County of Cumberland S5
Rer.~rded in the 'Jffice for the recording of Deeds
:jr..lrd/nd for/~t;:rn~erland County Pa.
'r.'2S Book E- Vol. =- Page ~b "
Wltt1F!SS my hilnd ~nd s"", 01 'Jffice of
Carli.le. FA t,tF~v 01 t@+...
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THY S. SPONSELLER
.lTTOAHlY AT LAW
Ulllr;AIIIUACi Tllun DlD=.
IIEIlUURG. PI<. 17201
7U IU.lIst
oct. ~q
S~ t: e.a..c,+e.r- Rd. I
1991. Hail tOI Ma.... t"n/ L. v.J1l./I ~ r
Ch/l.""bel'~h""ra I (Ja., IIJ~ol
'11
~OOK 40G PAGE Gf:l8
,/
,/
'N
QUADRANT .
LINE . BE~ING DIST.
1. S 6I003'SS. E -150,40'
2. S 21044'32' ,- SS,40'
3. S O2o(l6'~B' II - 42.M'
4. S 09050'04. E - 28.42'
5. S 65059'42' ,\.. 150.00'
6. N 09050'04" - 39,87'
7. N 02006'50' E - ~.7a'
e. "21044'92''e -'1'O.~'
'.
jlOCATION .MAP
SCALE: I" ,; 1 m~o
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50' PERMANENT
,DRAINAGE EASEMENT
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,Total Area = 29,194..sq. ft.
LEGEND
E.' .P. '" ExIsting Iron Pin
I.P. - Iron PIn Isetl
'E.R.~.S. "'Existing Railroad SpIke
';R.R.S. "'RaIlroad Spike Isetl.
'E.~.K. = Existing Parker Kalan Nail
P.K. = Parker Kalan NaIl Iset)
R/W .. Right-of-Way
It" Centerline,
~'" Property Line
nlf '" Now or Formerly
Pt, '" Point
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.OCTOBER 18, 1991
BYERS & RUNYON' SURVEYING
200
- -- ,.,.'.-
- - -.. -
Scali I". lOO'
479 Lincoln Way Easl, ChambersbUio. PA. 17201 Ph: 711.264-3384
.~
RIGm' OP Wl\Y l\ND El\SEr~ENT
"
-/
PRl\NK R. DUTLER, a widower of Upper Mifflin Township,
Cumberland County, Pennoylvuniu,
to
IIl\ROLD'L. ICKES and Dl\IWl\R1\ l\. ICKES, his wife, of the
same place,
, FOR AND IN CONSIDERATION OF the sum of One Dollar', ($1. 00)
in hand paid, receipt of which is hereby acknowledged" ,: ',:.;
Prank R. Butler, the Grantor hereby 9rants to lIarold L;Ickes
and Barbara A. Ickes, his wife, the grantees, their heirs'
". '"
",
..'
> ~ .
and assigns, a right of way and easement to construct, maintain;
and replace a drainage system, and grants to the grantees,'
an easement of ingress and egress for the construction,main~ '
tenance and repair of the said drainage system, on that portion
.of thei tract. of land conveyed by Harold S.Irwin and Dorothy B.
Irwin, his wife, to Frank R. Butler and Ellen R.'Butler, his
wife, on May 17, 1945 in Deed Book Z
Vol.12
page 285
, .
I "
The said Ellen R. Butler died ! ,/1-), ,~-, I 'hi'
: ',Said' drainage area commences at a point, 700
" '
'. '-.
feet south,east:' ,.'
of the graveyard and extending along the northern boundary of the
said tract of land some 350 feet and extending into the said,tract
'of'land approximately '700 feet as is more fully set forth on
the sketch attached to this Right of Way and Easement and
incorporated herein.
IN WITNESS WHEREOF, the parties have hereunto' ,set their,
..
hands and seals this the .:,k (I, day of July, ,1977.
, Witness:
I
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FZ~'L~~!i~!ti~eC).l( Jlt. ".'.
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lIarold L. Ickes
\--2 'J
.Ji;n i' (.,1. 1 ~-' t1 ' \../k4 ", "">
~~~bara A. Ickes
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SHERIFF'S OFFICE
'" 157 LINCOLN WAY EAST, CHAMBERSBURG, PENNSYLVANIA 17201 (717) 261.3877
- ._-~.,-'---
SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT OF RETURN
--~---~-~ --
I, PLAINTIFFI SI
.
3. DEFENDANTI SI
INSTRUCTIONS FOR SERVICE OF PROCESS, Please type or print
legibly. De nol dotach Dny cepios.
t' COURT NUMBER
98-4410
. --.---- .-.... ---- m_ 4'TYPE OF WRIT OR COMPLAINT:
MARTIN WELLER, ET AL . NOTICE & JOINDER COMPLAINT IN EQUI
{ 5. NAME OF INDIV'DUAL, COMPANY. CORPORATION. ETC.. TO SERVICE OR OESCR'PTlON OF PROPERTY TO BE LEVIEO, ATTACHED OR SOLD.
TIMOTHY SPONSELLER
6. ADDRESS (SlreDt or RFD, Aparlment No" Cily, Bore, Twp.. Slale and ZIP Code)
AT 6801 FINDLEY ROAD, MERCERSBURG, PA 17236
7, INDICATE UNUSUAL SERVICE: 0 COMMON OF PA. 0 DEPUTIZE 0 OTHER
Now, 19. ,I, SHERIFF OF FRANKLIN COUNTY, PA.. do hereby deputize the Sheriff of
County to execute this Writ and make return thereof according
to law. This deputatioR being made at the request and risk of the plaintiff,
B. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
DAVID A THOMPSON
SERVE
.
5f1Efmr OF rnANKtltl COUNTY
NOTE ONLY APPLICABLE ON WRIT OF EXECUTION, N.B. WAIVER OF WATCHMAN - Any deputy sherill levying upon or allaching any property under
within writ may leave same without a watchman, in custody 01 whomever is found in possession. after notifying person 01 levy or attachment, without liability on
the Dart of such deputy or the sheriff to any plaintiff herein for any loss destruction or removal of any such prop~ before sheriff's sale thereof.
9. SIGNATURE of AlTORNEY or olher ORIGINATOR 10. TELEPHONE NUMBER J 11. DATE
CUMBERLAND COUNTY SHERIFF
12. SEND NOTICE OF SERVICE COPY TO NAME AND ADORESS BELOW: (This area must be completed If notice is 10 be mailed)
R THOMAS KLINE, ONE COURTHOUSE SQUARE, CARLISLE, PA 17013
SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE ' ., ' ,", '\
13. I acknowledge receipt of the writ} SI A TUR: ~~IY or Clerk and Title 14, Date Received 15. Expiraticn/Hearing dale
or complaint as indicated above. ' 8-30-99 9-24-99
16. I hereby CERTIFY and RETURN t t I v personally served, 0 have I gal evidence of service as shown in "Remarks", 0 have executed as shown.m
"Remarks., the writ or complaint desct' on the individual. company, corporation, etc., at the address shown above or on the individual, company,
corporation, etc., at the address inserted below by handling a TRUE and ATTESTED COPY thereof.
17.01 hereby certify and return a Nor FOUND because I am unable to locate the individual. company, corporation, etc., named above, (See remarks below)
1 B. Name and title of individual served (if not shown above) 19. A parson 01 suitable age and discrelion lhen
TIMOTHY SPONSELLER ~~~~.g 6" tho defendant's usual place 01
20. Address of where served (complete only if different than shown above) (Street or RFD, Apartment No., 21. Date of Service 22. Time
City, Boro, Twp. Slate and Zip Code)
SHERIFF'S OFFICE
23, AlTEMPTS Miles Dep.lnt.
9-1-99
9:00AM
AM
PM
EST
EOST
Dep.tnt.
24. Advance Costs
18.00
22.00
53.00 REFUND
30. REMARKS:
SO ANSWER.
19 9.9
32'SjgnalUrOOI~
Oep, Sherif!
35.Sign1l1uroot 11-;;-- - - - ~-
R ERT .1\ WOL.L'i.U.~G__
SHERIFF OF FRANKLIN COU
33.01110
36.0alo
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ICIA A S.IBlli, E..N o~ .e~'
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9-1-
SIGNATURE}
l39.0aloRecoivcd
FCSO.11196
MQW&:6
, DEO 2 91QQA ~\
, ".y
, .
TEN EAST HIGH STREET
. CARLISLE. PENNSYLVANIA 17013
DAVID A. THOMPSON,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
CIVIL ACTION - EQUITY
v.
MARTIN L. WELLER and DIANA M.
WELLER, his wife, SCOrf A. CALAMAN :
and MELANIE CALAMAN. his wife.
Defendants NO.9l!-4410
1)'>0
AND NOW, thisJ I ~ day of
ORDER
I (i.(o( ,j,t.<-
. 199&.., upon consideration
of the attached Motion for Preliminary Injunction. a hearing in the above-captioned matter is hereby
set for 0, t!1<<.lOA<1 13 ,199..2.. at J: 30 o'clock. in Courtroom #.-2...
7 d
Cumberland County, Pennsylvania.
/ f
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~y/ THE ~I),T
Ljt;/~~/
J.
/
(l~]U!"\\(J^T^HLL\{jBNlXX.'91NJ.$7I,MOT,1
('f'u'rd:01I'~)1I12:S2:5')PM
Itrviw.l: 12/lIf'iHlJ3:-W:2HP,M
DAVID A. THOMPSON,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
v.
MARTIN L. WELLER and DIANA M.
WELLER, his wife, SCOTT A. CALAMAN :
and MELANIE CALAMAN, his wife,
Defendants NO.9R-4410
TO: MARTIN L. WELLER AND DIANA M. WELLER AND THEIR COUNSEL, STEVEN A.
STINE, ESQUIRE, AND SCOTT A. CALAMAN AND MELANIE CALAMAN: YOU ARE
HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED MOTION WITHIN 20 DAYS FROM
SERVICE HEREOF OF A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU.
PLAINTWF'S MOTION FOR
PRELIMINARY INJUNCTION
AND NOW, comes the Plaintiff, David A. Thompson, by and through his attorneys, Martson
Deardorff Williams & Otto, and hereby moves thisCcurt for a preliminary injunction under Pa.R.C.P.
1531 enjoining and restraining Defendants pending final hearing and determination of this action from
further interfering with Plaintiffs easement existing over that portion of land owned by Defendants,
Martin L. Weller and Diana M. Weller, and in support avers as follows:
I, Unless Defendants are effectively restrained and enjoined from their improper conduct,
as described with particularity in the Verified Complaint in Equity filed in this caseund in this Motion
for Preliminary Injunction, Plaintiff will continue to suffer immediate, substantial, and irreparable
harm by being deprived of his property rights in the drainage easement existing on lands of Martin
L. Weller and Diana M. Weller as granted to Plaintiffs predecessor in title by Defendants'
predecessors in title in an Agreement dated July 30, 1977 (said Agreement being attached to Plaintiffs
Complaint as "Exhibit C").
2. Plaintiff fLIed his Verified Complaint in Equity on July 31, 1998.
3. Since the filing of this Complaint, Defendants have caused the private road that has
been improperly constructed by Defendant Martin Weller through Plaintiffs drainage easement area,
known as "Mountain View Lane". to be used by various vehicles, including large trucks.
4. These vehicles, by using the offending road. pass directly over and through the
drainage area rightfully used by Plaintiff and over the drainage pipe servicing Plaintiffs property and
the drainage area.
5. This vehicular traffic, espcclally the large trucks, poses a direct threat to the stability
of the drainage pipe and constitutes an intcntional, unreasonable, and substantial violation of Plaintiff's
property rights in the drainage area.
6. The issuance of a preliminary injunction closing Mountain View Lane to all vehicular
traffic as it passes over and through the drainage area and drainage pipe is reasonably suited to abate
the Defendants' continuing wrongful acts,
7. The issuance of a preliminary injunction will not cause undue inconvenience or loss
to the Defendants, but will prevent irreparable injury to the Plaintiff.
8, Plaintiff has no adequate remedy at law to redress the continuing harm and injury
caused by the Defendants' wrongful and unauthorized interference with his property rights.
9. Plaintiff is likely to succced in proving at trial that the Defendants' activities are
actionable and enjoinable.
10. In support of this Motion for Preliminary Injunction, Plaintiff incorporates herein the
Verified Complaint in Equity filed in this action as if the same were fully restated at length.
WHEREFORE, Plaintiffs respectfully request that this Court enter an Order enjoining and
restraining Defendants and their employees, agents, assigns, and successors in interest from further
interfering with Plaintiff's property rights in the drainage area by prohibiting the use of Mountain
View Lane as it passes over and through Plaintiff's drainage easement and pipe by all vehicular traffic,
and retain jurisdiction of this matter to ascertain that the Court's order and decree is obeyed,
Date: December 23, 1998
~yA~;~~:[ WILLIAMS & OTTO
Carl C. Risch, Esquire
PA Attorney I.D. No, 75901
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Attol'lleysfor Plaintiff'
DA VID A. THOMPSON.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
v.
MARTIN L. WELLER and DIANA M.
WELLER, his wife, scon A. CALAMAN :
and MELANIE CALAMAN, his wife.
Defendants NO.9H-4410
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served this date by
depositing the same in the Post Office at Carlisle, Pennsylvania, first class mail, postage prepaid.
addressed as follows:
Steven A. Stine, Esquire
134 Sipe Avenue
Hummelstown, PA 17036
Martin L. Weller and Diana M. Weller
58 Feaster Road
Chambers burg, P A 1720 I
Scott A. Calaman and Melanie Calaman
6 Mountain View Lane
Newville, P A 17241
~yARQ: ~QQLLIAMS & om
Carl C. Risch, Esquire
PA Attorney I.D. No. 75901
Ten East High Street
Carlisle, P A 17013
(717) 243-3341
Attorneysfor Plaintiff
Date: December 23, 1998
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ll. Dcnicd. Thc avcnllcnls in paragraph eight (ll) arc conclusions of law to which no
rcsponsive plcading is dccl1lcd ncccssary and slrict proofthercofis demanded at
trial.
9. Dcnicd. Thc avcrl1lcnts in paragraph ninc (9) arc conclusions of law to which no
rcsponsivc pleading is dccmcd ncccssary and strict proof thereof is demanded at
trilll. Inllll'lhcr rcsponsc. said Right of Way and Easemcnt Agrccmcnt and
IIccolllpanying skClch spcak for thcmselves.
10. Dcnicd, Aftcr rcasonablc invcstigation, Defcndants Weller arc without
knowlcdgc or inllll"lnation sufficient to form a bcliefas to the truth ofthc
IIvcnncnls of paragraph tcn (10) and strict proofofthc same is demanded at trial.
II. Dcnicd. Thc avcrmcnts in paragraph cleven (II) arc conclusions of law to which
no rcsponsive plcading is dccmcd necessary and strict proof thereof is demanded
al trial.
12. Dcnicd. Thc avcrmcnts in paragraph twelve (12) are conclusions of law to which
no rcsponsivc plcading is deemed necessary and strict proof thereof is demanded
at lrial.
13. Dcnicd. A ftCI' rcasonablc investigation, Defendants Weller are without
knowlcdgc or inlonnation sufficient to form a belief as to the truth of the
avcrmcnts of paragraph thirtecn (13) and strict proof of the same is demanded at
lrilll.
14. Dcnicd. Thc avcrmcnts in paragraph fourteen (14) are conclusions oflaw to
which norcsponsive plcading is dcemed necessary and strict proof thereof is
dcmandcd lit trial.
15. Admitted,
16. Admitted.
17. Denied. The averments in paragraph sevcntccn (17) arc conclusions oflaw to
which no responsive pleading is deemcd ncccssary and strict proof thereof is
demanded at trial.
18. Admitted,
19, Admitted in part, denied in part. It is admittcd that Plaintiff did not execute said
Agreement. It is further admitted that Plaintiff was unaware of its recordation, It
is denied that Plaintiff was unaware of the Agreement being drafted.
20, Denied. The averments in paragraph twenty (20) are conclusions of law to which
no responsive pleading is deemed neccssary and strict proof thereof is demanded
at trial.
21. Denicd. The averments in paragraph twenty-one (21) are conclusions oflaw to
which no responsive pleading is deemed necessary and strict proof thereof is
demanded at trial.
22, Denied, The averments in paragraph twenty-two (22) are conclusions of law to
which no responsive pleading is deemed necessary and strict proof thereof is
demanded at trial.
23. Denied, The averments in paragraph twenty-three (23) are conclusions oflaw to
which no responsive pleading is deemed necessary and strict proof thereof is
demanded at trial.
24. Dcnicd. Tlw avcrmcnts in paragraph twcnty-four (24) are conclusions of law to
which 110 rcsponsive plcading is dccmcd ncccssary and strict proofthercofis
dCIIHlnlkd at lrilll.
25. Dcnicd. Thc avcrmcnts in paragraph twcnty-livc (25) arc conclusions oflaw to
which no rcsponsivc plcading is dccmcd ncccssary and strict proof thereof is
dcmandcd at trial.
2Cl. Dcnicd. Thc avcrmcnts in paragraph twcnty-six (26) arc conclusions of law 10
which no rcsponsive plcading is dccmcd nccessary and strict proof thereof is
dcmanded at trial.
27. Dcnicd. After reasonable invcstigation, Dcfimdants Weller are without
knowlcdgc or information sufficicnlto (orm a belicfas to the truth of the
avcrments of paragraph twcnty-scven (27) and strict proof of the same is
dcmanded at trial.
28. Denied. Aller reasonablc investigation, Defendants Weller are without
knowledge or information suflicientto lorm a belief as 10 the truth of the
averments of paragraph twenty-eight (28) and strict proof of the same is
demanded at trial.
29. Denied. After reasonable investigation, Defendants Weller are without
knowledge or information suf'licientto form a belicfas to the truth of the
averments of paragraph twenty-nine (29) and strict proof of the same is demanded
at trial.
3D. Denied. After reasonable invcsligation, Defendants Weller are without
knowledge or information sumcient to form a belief as to the truth of the
43. Dcnicd. Thc avermcnts in paragraph fllrty-thrcc (43) arc conclusions of law to
which no rcsponsivc plcading is dccmcd ncccssary and slrict proof thereof is
dcmandcd at lrial.
44. Dcnicd. The avcrmcnts in paragraph Illrty-Illllr (44) arc conclusions oflaw to
which no rcsponsive pleading is dccmed ncccssary and strict proof thereof is
demand cd at trial.
45. Denicd. After reasonable invcsligation, Defendants Wcller are without
knowledge or information sufficicnt to form a belief as to the truth ofthe
averments of paragraph forty-five (45) and strict proof of the same is demanded at
trial.
46, Denied. After reasonable investigation, Defendants Weller are without
knowledge or information sufficient to form a belief as to the truth of the
averments of paragraph forty-six (46) and strict proof of the same is demanded at
trial. It is further denied that the roadway is known as Mountain View Road, To
the contrary, said roadway is known as Mountain View Lane.
47. Denied. After reasonable investigation, Defendants Weller are without
knowledge or information sufficient to form a belief as to the truth of the
averments of paragraph forty-seven (47) and strict proof of the same is demanded
at trial.
48, Denied. After reasonable investigation, Defendants Weller are without
knowledge or information Slifficientto form a belief as to the truth of the
averments of paragraph forty-eight (48) and strict proof of the same is demanded
at trial. It is further dcnicd thatthc roadway is known as Mountain Vicw Road.
To thc contrary, snid roadway is known .IS Mountain View Lanc.
49. Denicd. Aftcr rensonable invcstigation, [)clcndants Wcller arc without
knowledge or information sufficient to limn a beliefas to thc truth of the
averments of paragraph forty-nine (49) and strict proof of the same is demanded
at trial.
50. Denied. The avermcnts in paragraph liliy (50) arc directcd to parties other than
Defendants Weller.
51. Denied. After reasonable investigation. Defcndants Weller arc without
knowledge or information suffieicntto form a belief as to the truth of the
averments of paragraph lifty-one (51) and strict proof of the same is demanded at
trial. It is further denied that the roadway is known as Mountain View Road. To
the contrary, said roadway is known as Mountain View Lanc.
52. Denied. After reasonable investigation. Defendants Weller are without
knowledge or information suflicientto lorm a belief as to the truth of the
averments of paragraph lilly-two (52) and strict proof of the same is demanded at
trial.
53, Denied, The averments in paragraph fifty-three (53) are conclusions of law to
which no responsive pieading is deemed necessary and strict proof thereof is
demanded at trial.
59. Denied. The avcrments in paragraph fifty-nine (59) arc conclusions orlaw to
which no responsive pleading is dcemcd nccessary and strict proof thercof is
demanded at trial.
WHEREFORE, Defendants Martin L. Weller and Diana M, Weller, his wifc, rcspectfully
request that this Honorable Court enter judgment in their t~\Vor and against the Plaintiff, together
with costs.
NEW MATTER
60. The answers in paragraphs one (1) through fifty-nine (59) arc incorporated herein
by reference,
61. Any damages Plaintiff may have sustained were not proximately caused by
Defendams Weller, but were caused in whole or in part by the negligence of parties
other than Defendants Weller, whose conduct Delendants Weller had no control
over or reason to foresee.
62. The present cause of action is barred by the applicable Statute of Limitations.
63. Plaintifrs Complaint fails to state a claim against Defendants Weller upon which
relief can be granted.
WHEREFORE, Delendants Martin L. Weller and Diana M, Weller, his wife, respectfully
request that this Honorable Court enter judgment in their ftlvor and against the Plaintiff, together
with costs.
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SHERIFF'S OFFICE
157 LINCOLN WAY EAST. CHAMBERSBURG. PENNSYLVANIA 17;>01 (717) 261.3877
-'--'-'--------SHERIFF SERVICE 1.1~~;flUCT,oNs-Fon SER~;~~;;-~_;;_~~ESS. Plooso Iypo or print
PRO~ES~~~~~I~T._~~_d~~!.IDA VIT ~~__~~T_~~~___I~~~y:..~o_,,~1 dOlnch~n~ copioS:...~____ .
1. PLAINTIFFI 51 2 COUnT NUMI3ER
DAVID A. THOMPSON 98-4410 CIVIL
3, DEFENDANTI 51 MARTIN-e,-WELi;EiCAND :I'TYf'E" 6FWniT"6'r~-c-6t;'-PL-i\jNT:-----'--
DIANA M. WELLER ________________lliO'l'I~Il AND COMPLAINT IN EQUI'fY
{ 5. NAME OF INDIVlDUA-c.- CO.MPANY, conponATION, ETC.". TO SERVICE OR. DESCRIPTION OF pnOPERTY TO. OE LEVIED. ATTACHED OR SOLD.
MARTIN L. WELLER AND DIANA M. WELLER
6, ADDRESS (Slreet or R-f:D~/\;;ailmeiit No.. Cily, 130ro, Twp.. State ar'-d ZIP-Coelil)--------
AT 58 FEASTER ROAD! CHAMBERSBURG, PA 17201
7, INDICATE UNUSUAL SERVICE: 0 COMMON OF PA. 0 DEPUTIZE 0 OTHER
Now, __,lL_._ , I. SHERIFF OF FRANKLIN COUNTY. PA.. do hero by deputize the Sheriff of
_. __ County to execute this Writ and make return thereof according
to law. This deputation being made at the request and risk of the plaintiff.
. B. SPECIAL INSTRUCTIONS DR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
SERVE
..
~;t!Hm r <l!' H1,,!11<1I11 coumv
NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF W'ATCHMAN - Any depuly sheri II levying upon or allaching any property under
within writ may leave same without a watchman, in custody of whomever is found in possession, alter notifying person of levy or attachment, without liability on
the Dart of such deQutv or the sheriff to anvJ?laintiff herein for any loss, destruction or removal ~f a~ sucl, P!QQQili before sheriff's sale thereof.
9. SIGNATURE of ATTORNEY or olher ORIG]NATOR 10. TELEPHONE NUMBER r 1. DATE
E>>MKKKKXNE HARTSON, DEARDORFF, WILLIAMS & OTTO
12, SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed)
CUMBERLAND COUNTY SHERIFF, R. THOMAS KLINE
ONE COURTHOUSE SQUARE. CARLISLE, PA 17013
SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE
13. I acknowledge receipt of the writ} ~Sl NATUR~~o.rizeC!..!cso Deputy or Clerk and Title 14. Date Received 15. Expiralion/Hearing dale
orcomplainl as indicaled above, _ ___:::::;:Z ~~.c... 8-5-98 8-31-98
16. I hereby CERTIFY and RETURN Iha I 0 ~rSOnalIY served, 0 have legal evidence of service as shown in "Remarks". 0 have executed as shown in
"Remarks\ the writ or complaint described on the individual, company, corporation. etc., at the address shown above or on the individual, company,
corporation, etc., at the address inserted below by handling a TRUE and ATTESTED COPY thereof.
17.0 I hereby certify and return a NOT FOUND because I am unable 10 locate the individual. company, corpo'ration, etc., named above, (See remarks below)
18. Name and title of individual served (if not shown above) 19.A purson 0' sUltablo ago and discretion then
HARTIN L WELLER F ICsidlng in 1110 delendant's usual place 01
. - OR BOTH "mdo. 0
20. Address of where served (complete only jf dilferenlthan shown above) (Streel or RFD, Apartment No., 21. Dale of Sorvice 22. Time
City, Boro, Twp, Stale and Zip Code)
AM
PM
EST
eDST
SAME AS NUMBER 6.
23. ATTEMPTS
Miles
20
18.00
30, REMARKS:
o and subscribed 10 before me this
7TH
~-'{,]!<i-r~
~ ~ ~y,;\~ ~ -I
32. Signilturo of (J1r . . 33. Data
Oop $holl" RONALD J. ON
35. Sigoaturo ot S~lOritf' . . 36. Dnlo
SHER]FF OF FRANKLIN COUNTY
8-7-98
~g98
101110 ,II O,'pulyINotmyPulll.e
E RECEiP1~T1iJil!~~_i!W~s !lE.1;~RNISIGNATUR--E \
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. ~.
SHERIFF'S OFFICE
i~><;""~'~
, 157 LINCOLN WAY EAST, CHAMBERSBURG, PENNSYLVANIA 17201 (717) 261.3877
SHERIFF SERVICE INSTRUCTIONS FOR SERVICE OF PROCESS. Pl..so Iypoor prinl':
PROCESS RECEIPT, and AFFIDAVIT OF RETURN legibly. Do nol delach any capias. . r . .
1. PLAINTIFFI SI 2. COURT NUMBER
DAVID A. THOMi'SON 98-4410 Clvn.
e 3. DEFENDANTI SI MAR'rIN L. WELLER AND 4. TYPE OF WRIT OR COMPLAINT:
DIANA M. WELLER NOTICE AND COMPLAINT IN E UITY
.{ S. NAME OF INDIVIDUAL. COMPANY. CORPORATION, ETC.. TO SERVICE OR DESCRIPTION OF PROPERTY TO DE lEVIED. ATTACHED OR SOlD.
, MARTIN L. WELLER AND DIANA M, WELLER
. 6. ADDRESS (Slreel or RFD, Apartmanl No., Cily. BolO. Twp" Slale and ZIP Code)
AT 58 FEASTER ROAD, ClWlBERSBURC, PA 17201
.,.: 7. INDICATE UNUSUAL SERVICE: 0 COMMON OF PA,D DEPUTIZE 0 OTHER
.'"Now,'; '. 19 , I, SHERIFF OF FRANKLIN COUNTY, PA., do hereby deputize the Sheriff of
"', .. , .. jr;:?unty to execute this Writ and make return thereof according
".':.Jolaw. This deputation being made at the request a~'f ~s~ ol,the pl!lintiff. .. J '''ERlFf OFfMN'L1N COUNTY
',,',;, 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WilL ASSIST IN EXPEDITING SERVICE:
st.:,~;\t:-~.- ( .:t:-; ~i ;\ t' ".1.., :11 t~.\/. ;.:) /.j \ ~. \ \ . .'J
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'T\': NOTE ONLY APPLICABLE ON WRIT OF EXECUTIOll: N.B.. WAIVER OF WATCHMAN - Any depuly sheriff levying upon or altachlng any property under.
;':'iwithln wrll may leave same without a watchman. In cuslody of whoflleveri's found in possession. after notifying person of levy or allachmenl. wilhout lIabllityon ".:,
i,,:::~,'the art of such de U orthe sheriff to an laintiflherelnforan loss deslruction or rembval of an such ro e beforesheriff'ssalethereof," '-', '-"',,-,,";
~:;;(',9.SIGNA.. .TURE o. .f AlTORNEY or other ORIGINATOR 10, TELEPHONE NUMBER 11, DATE
g,,~,;:.!/.:. .'. HARTSON. DEARDORn', WILLIAMS & OTTO
i;"-~";'; ~ -),' . EFOOI:K.R.KXKB. '.
~\~~:'12..SEND NOTICE OF l?ERVICE COPY TO, NAME AND ADDRESS BELOW: (This area must be completed If nolloe IIno be l1)alled)
$;\%\~~UHJlERLANDCOUNTYSHERIFF, . Rt THOMAS KLINE '" \:'
~'~Y':'''ONECOURTHOUSE SOUARE. CARLISLE; PA17013 " , . "'. '. .'"
~:;'ff'';,~1ii;\i)jct';';,!:Ni';i!ii!;i'(:;;SPACE'.BECOW.FOR USE.OF'SHERIFF ONLY."" DO NOT WRITE BELOW. THIS .L1NE".,;,:;.;:'.::<:":c:;,,I,\';-ij:'}
~"" ' .~.
....~..'/.'.13.1 acknowledge re. c.eiPt. of the writ.'} .' . . SIGNATURE u orized FCSO Depuly or Clerk and TIUe 14, D. ale Received '. 15, EXPirallOnlHe.Wingdale.',.?
!~Yi,.;:,9r90niplalntaslndicatedabove. /",' 8-5-98 . 8-31-98 .., '/ii,
:)':M'l~.,1 herebyCERT\FY and !'lETURN th 110 personally served, 0 have legal evidence of service as shown in 'Remar~s'!, 0 have execuled as:~hown in.. ".'
.;:~i'~~::';:::")~";:~Fl~,rr!~~~\~he~rit o~"comp'lai~td~scribea ~~ theindiyid,ual, company, corporation, etc., at the addres~s~own aboy. or on the_in.divI~li~S')!..Qmpany.:
;,;:';iV 'corporallon. elc,; at the address Inserted below by handling a TRUE and AlTESTED COPY Ihereof. I., . >, ,_,'"
.;~;f;17.' DTti"reby certify and relurn a NOT FOUND because I am unable to locate Ihe individual, company. cOrPp,ation. elc.. narn tl abov". (See iemarks,below)<;'
:};.::~J8;'Name an~title otil'ldividualserved (if ,not shown.~bove) , : .19.A person 01 suitabla ago and discretion then': .
~(':l,;.,;~\;:_ ";":,.:r:"-nT"IN'o.J..'::' ,'. 'w" "E LL" '. E' R" FOj, 'B' OT" . Jj I. ';' ~ rosldlng In ltho dolendarb usual placa' of'
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" , 2Q, Address of where served (complele only if differenllhan shown above) (Street or RFD. Apartment No,. 21. Dale of Service. 22. Time,,' AM. ..':"::;;
:;;,9111',,8010, Twp:Slale and Zip Code) ...."J..... '.". ...:........'.'.'..,:~..,,~SMT...'.. :'.'......"......:.'::
,'", ,', "",' . _-. ...,......;,...EDST~:,,,;...~::
,; ,.... SAME AS NUMBER 6. 8': ~98~ .i40Pfl~'.";:';\
.t...".,.~. -.' , ". -..' ~". . .'-.... .- ".'/........, ".'.. ,:.'.- ";,;"";:
':t'i',,23:.,AlTEMPTS', Dale Miles Dep.lnt. Dale..Mlles': '..Dep.lnt.,XPX
1::n,:;;:V:,>' 8':':6 20V4 ..... .... ..., 'A!
)r~::~'.;:::24..;Advance'Costs' . . , 25. Service Costs 29. COST DUE OR REFUNDL,:;';.~>~
is,::!":' '18.00 47.40 REF\JND':N4
"~.'\30. REMARKS: "", )';S:(J;it
f~.<~~~'-;\' " , ~~"~,~ .; --j ;.: h' ;_.~;>;,{<~~
t:E:i: L ,.";,> '/:.H; . ( <f'\:J.tvd:",..L: ........... . : ',.. .
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2/(-;1:ft~I~~(6and ~ubs~r1~1'106;l?r~jlf;t! )i~Jf:;~'/U;!);
V:'~~.d~YOf/ ,.....' 1998 ,
.,
SO ANSWER,
32.Slgnaturoof
Dop, Sheriff RONALD
35~ Slgnaturool Sherill
33. Date
,,"": :')'
. 8-6-98
J. AMON
'36. Dalo
SHERIFF OF FRANKLIN COUNTY
""~''.I.'-:;
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TEN g/sr Hltill SrrtH.T
CAJu.m.r.. I'!:NNWI.VANIA 170) 3
DA VID A. THOMPSON,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
v.
MARTIN L. WELLER and DIANA M.
WELLER, his wife, SCOIT A. CALAMAN :
and MELANIE CALAMAN, his wife,
Defendants NO. YX-4410
PLAINTIFF'S REPLY TO NEW MATTER
AND NOW, comes the Plaintiff, David A. Thompson, by and through his attorneys, Martson
Deardorff William~ & Otto, and hereby replies as follows:
60. The allegations contained in paragraphs 1 through 59 are incorporated herdn as if fully
set forth.
61. Denied. The averments in paragraph 61 constitute conclusions of law to which no
response is required and, therefore, those allegations are denied. To the extent that the allegations
are not conclusions of law, Plaintiff lacks sufficient knowledge after reasonable investigation to either
admit or deny such allegations.
62. Denied. The averments in paragraph 02 constitute conclusions of law to which no
response is required and, therefore, those allegations are denied.
63. Denied. The averments in paragraph 63 constitute conclusions of law to which no
response is required and, therefore, those allegations are denied.
WHEREFORE, Plaintiff requests that judgment be entered in his favor and against Defendants
as requested in the Complaint.
Date: January 4, 1999
MARTSON DEARDORFF WILLIAMS & OITO
By 0~~.Q
Carl C. Risch, Esquire
PA Attorney 1.0. No. 75901
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneysfor Plaintiff
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:~:=-.;::: ."~::. :::':,~ vou ARE ~ltREBY NOTIFIED TO PLEAO TO
,1:',",'1'" THE. ENCLOSE!;, WlnllN
, ' TWENTY 1201 DAYS OF SERVICE HEREOF OR
\<'" A DEFAULT JUOGMENT MAY BE ENTERED
AOAINST YOU.
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"""ORNEV
LAW OFFICI:
JAMES, SMITH, DURKIN & CONNELLY, LLP
P. 0. BOX 650
IIERSflEY. PENNSYLVANIA 17()JJ,(I650
WE HEREBY CERTIFY THAT THE WITHIN 16
A TRUE AND CORRECT COPY OF THE
ORIGINAL FILED IN Tt!19 ACTION,
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ATTORNE'"
DA VID A. THOMPSON,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
-
v.
NO. 98-4410 EQUITY
MARTIN L. WELLER and DIANA M.
WELLER, his wife, SCOTT A. CALAMAN:
and MELANIE CALAMAN, his wife,
CIVIL ACTION - EQUITY
ANSWER OF I>EFENDANTS WELLER TO
PLAINTIFF'S MOTION FOR PRELIMINARY IN.JUNCTION
AND NOW, eDme Defendants Martin L. Weller and Diana M. Weller, by and through
their attorneys, James, Smith, Durkin & Connelly, LLP, to answer Plaintiffs MotiDn fDr
Preliminary InjunctiDn as follows.
I. Denied. The averments in Paragraph I are conclusiDns of law to. which no.
responsive pleading is deemed necessary and strict proof thereof is demanded at
trial.
2. Admitted,
3. Admitted in part. It is admitted that Mountain View Lane is used as ingress and
egress for certain lots, It is denied that the Defendant Weller improperly
eDnstrueted Mountain View Lane thrDugh Plaintiffs drainage easement. It is
further denied that Mountain View Lane is being used large trucks other than
vehicles delivering fuel oil.
4. Admitted in part. It is admitted that Mountain View Lane passes Dver the drainage
pipe, It is denied that Mountain View Lane passes over and through the drainage
casement. To the contrary, thc portion of the drainage pipe over which Mountain
View Lane passes is not within the drainage casement.
5. Dcnied. After reasonable investigation, Defendants Weller are without knowledge
or information sufficient to form a belief as to the truth of the averments of
Paragraph 5 and strict proofofthe same is demanded at trial.
6. Dcnicd. Thc avcrments in Paragraph 6 are conclusions of law to which no
responsive pleading is deemed necessary and strict proof thereof is demandcd at
trial.
7. Denied. The averments in Paragraph 7 arc conclusions oflaw to which no
responsive pleading is decmed nccessary and strict proof thereof is demandcd at
trial.
8. Denied. The avcrments in Paragraph 8 arc conclusions of law to which no
responsive pleading is deemed necessary and strict proof thereof is demanded at
trial.
9. Denied, To the contrary, Mountain View Lane does not pass over or through the
drainage easement.
10. No responsive pleading is required.
CERTIFICATE OF SERVICE
I, STEVEN A. STINE, ESQUIRE, do hereby certify that I served a true and correct copy of
the foregoing Answer to Motion lor Preliminary Injunction upon the following below-named
individual(s) by depositing same in the U. S. Mail, poslage prc-paid at Hershey, Dauphin County,
Pennsylvania this ~day of January, 1999.
SERVED UPON:
Carl C. Risch, Esquire
Martson, Deardorff, Williams & Otto
Ten East High Street
Carlisle, P A 17013
Lisa M, Greason, Esquire
Turo Law Offices
32 South Bedford Street
Carlisle, PAl 70 13
----'
N & CONNELLY, LLi'
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as a parly to this aclion.
6. PlainlilT was inllll'll1ed of thc intcntion of Dcfcndants Wellcr to join Timothy
Sponsellcr, Esquire, and Plaintiff had no objection.
7. Likewisc, Defcndants Scott A. Calaman and Melanic Calaman wcre inltll'll1Cd of
the intention of Defendants Weller to join Timothy Sponscller, Esquire, and
Defendants Cabman had no objection.
ll. On or about March 23, 1999. this Honorable Court issued a Rule to Show Cause
why the relief requested in the Pctition of Defendants Weller for Late Joinder
should not be granted. which Rule was returnable twenty (20) days from service.
9. Defendants Weller servcd a copy of said Rule upon the Plaintiff and Defendants
Calaman by Ictters dated March 24, 1999,
10, To date, there has been no response to the Rule to Show Cause by ei thcr the
Plaintiff or Defendants Calaman.
WHEREFORE, Defendants Martin L. Weller and Diana M. Weller respectfully request that
this Honorable Court make the Rule absolute and grant their Petition so that they may file a Joinder
Complaint against Timothy Sponseller. in accordance with the Pennsylvania Rules of Civil
Procedure.
/. .
. .
.' .
DEED OF EASEMENT
THIS DEED OF EASEMENT, made this O?.s& day of M.1of,~A' ) ,
nineteen hundred ninety-one (1991), BY AND BETWEEN I MARTIN L. WELLER and
DIANA H. WELLER, his wife, of 58 Fesster Road, Chambersburg,'Franklin county,
Pennsylvania, hereinafter known as the GRANTORS, AND DAVID A. THOMPSON and
DOROTHY J. THOMPSON, hie wife, of R. D. '2, Box 159A, Newville, Cumberland
county, Pennsylvania, hereinafter known as the GRANTEES.
WIT N E SSE T HI
That in consideration of the sum of Ons ($1.00) Dollar, in hand paid by
the GRANTEES, the receipt whereof is hereby aCknowledged, tho GRANTORS do
hereby grant, bargain and convey unto the GRANTEES, their heirs, executors,
successors and assigns, the free and uninterrupted use of, liberty and
privilege over and passage in, along, under and over a certain parcel of real
estate owned by the GRANTORS situate in Upper Mifflin TownShip, Cumberland
County, pennsylvania, for the purpose of installing, maintaining and operating
a water drainage facility, together with the necessary apparatus and equipment
which may be used in connection therewith, as is more fully described on the
plat hereto attached and made a part hereof, marked "Exhibit "A",
It is intended that the permanent right-of-way shall be of the width
shown on the plat, and that during the construction of the said line, a
temporary construction right-of-way shall be such additional width as shall be
shown on said plat, if any.
TOGETHER with the right, from time to time, to remove the said line and
eqUipment, with the right of free ingress, egress and regress for the
GRANTEES, their servants, agents and employees, and such other persons as they
may authorize and direct in and along the same at all times hereafter, in
common with the GRANTORS, their heirs, executors, successors, assigns and
administrators, and tenants and occupiers of the said ground, for tho purpose
of repairing, maintaining, renewing and cleaning the said line, with the right
to dig and construct such ditches, trenches and openings with the said
right-of-way as may be necessary for the said purpose, and together with the
right of entry upon the GRANTORS' land for the purposes aforesaid.
AnOIlNU AT LAW
IlA14DUIIUJlII TIlUIT ."DG.
UIIIJlIiDUIlG, PA n201
717 UI..,..
RESERVING, NEVERTHELESS, unto the GRANTORS, their heirs, executors,
successors and assigns, the right to use the surface of the said real estate
for so long and insofar and to such extont as the use thereof wrll not in any
wise interfere with, damage or affect the operation or use of. the water
drainage facility of the GRANTEES, and the GRANTORS do hereby covenant and
agree that they will not erect or permit the erection of any building or plant
any trees or shrubs on the right-of-way after the execution and delivery of
this Agreement which will endanger or interfere with the operation of the said
water drainage facility of the GRANTEES.
BOOK 40fj PACE GGfj
~X6BITpQ.CS 'e i
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.
TEN EAn HIla' STIU~I:T
CAA.L1SI.E,I'i:NNWIVANIA 17013
DA VID A. THOMPSON.
Plaintiff
IN TIlE COURT OF COMMON PLEAS OF
CIIMBERLAND COUNTY. PENNSYLVANIA
v
CIVIL ACl'ION - EQUITY
MARTIN L. WELLER, and DIANA
WELLER, his wife. SCOTT A.
CALAMAN and MELANIE CALAMAN.
his wife,
NO. lJX-44 10 EQUITY
Defendants
v
TIMOTHY SPONSELLER,
Additional Defendant
JURY TRIAL DEMANDED
PLAINTIFF'S RESPONSE TO ADDITIONAL DEFENDANT'S
REQUEST FOR ADMISSIONS AND ACCOMPANYING INTERROGATORIES
AND NOW, comes the Plaintiff, David A. Thompson, by and through his attorneys,
MARTSON DEARDORFF WILLIAMS & OTTO, and responds as follows:
I-X. Admitted.
l). Admitted that as of the date of these responses, Plaintiff is unaware of any damage
having been caused to Plaintiffs property as a result of the construction of the road. Plaintiffreserves
the right to amend this response in the future in the event he discovers actual damage has, in fact,
occurred as a result of the construction of the road.
10. Admitted.
MARTSON DEARDORFF WILLIAMS & OTTO
. (J.~ ~M---
Date: February 17.2000
By
Benjamin . Warner, Esquire
I.D.No.nIOO
Ten East High Street
Carlisle, PA 17013-30lJ3
(717) 243-3341
Attorneys for Plaintiff
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,""\
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January 13, 1999, 1:35 p.m.
Carlisle, Pennsylvania
(Whereupon, the following proceedings
were held:)
THE COURT: Let me have a statement off the
record by the moving party on what we are doing here and
why.
(Whereupon, a brief discussion was
held off the record.)
THE COURT: First witness.
MR. RISCH: We'll call the owner, plaintiff,
Mr. Thompson, Your Honor.
Whereupon,
DAVID THOMPSON,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. RISCH:
Q Please state your name for the record.
A David Thompson.
Q And what is your address?
A 631 North Middle Road, Newville,
Pennsylvania.
Q And what is your occupation?
A I'm a truck driver.
Q
Do you own real estate in Upper Mifflin
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Township, Cumberland County?
A Yes, I do.
Q When did you apply for this real estate?
A In 1977.
Q From whom did you acquire it?
A Mr. Harold Ickes.
Q Are you aware or understand you have any
rights that are pertinent to or came with the real property
that you purchased in Upper Mifflin Township?
A Yes, there was a drainage easement which
accompanied the property when I purchased it.
Q And to your understanding was this agreement
in writing?
A Yes, it is.
MR. RISCH: Your Honor, I would like -- the
parties have stipulated that this is the property
right-of-way agreement that is of record in the Recorder of
Deeds, and I would like permission to approach the witness.
THE COURT: You may, sure.
(Whereupon, Plaintiff's Exhibit A was
marked for identification.)
BY MR. RISCH:
Q Is that the agreement you were referring to
just now?
A Yes, it is.
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melts and so forth, this pipe collects the water and keeps
it from going through the basement walls and drains it down
into the field.
Q Did anything occur in 1998 that concerned
this drainage area, this drainage pipe, that whole area
down there you are discussing?
A Yes, in 1998, Mr. Weller started putting a
road down over the hill.
Q Who is Mr. Weller?
A The gentleman sitting on the right over
there. He started putting a pipe down across the hill
and --
THE COURT: You told me a road the first
time.
THE WITNESS: I mean a road, I'm sorry. He
started to put a road down across, and this road I could
see at that point and time was going to come through my
drainage easement and across my pipe and stuff which is
down there.
And at that point and time my son went up
and said to Mr. Weller, because one time I was out of town,
that, you know, you couldn't take a road down through
there, he didn't think they were supposed to take a road
down through there.
And at that point and time Mr. Weller said,
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yes, that he could take a road down through there. And I
think we asked for his attorney's name at that point and
time, and he gave us a gentleman up in Shippensburg.
THE COURT: It does not make any difference.
THE WITNESS: He had an attorney at that
point and time, and we contacted him. And he in turn sent
us a copy of a drainage easement that was not this at all,
that somewhere along the road here someone had went into
the courthouse and had my easement changed unto my
knowledge, unknown to my knowledge.
BY MR. RISCH:
Q Did you agree to any changes in the drainage
area?
A Definitely not, never.
Q Was there any discussion among the parties
regarding this drainage easement, anything about regarding
the building of the road, any of these matters?
A You mean between Mr. Weller and I?
Q Yes.
A Was there any discussion?
Q Yes.
A I can't think when it was, but back when Mr.
Weller first purchased the property he had approached me at
one time and asked -- said to me about he wanted to bring a
road down across there.
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,.... ,
Q Were there any meetings in 1998?
A Oh, in 1998? Oh, yes. In 1998, Mr.
Weller's attorney, which was Mr. Sponseller I believe it
was at that point and time, myself, Mr. Harold Ickes, who I
purchased the property off of, and you met up there.
And my understanding at that point and time
was that there was an agreement there that the road --
there would not be anything else done to the road until,
you know, there was some kind of an agreement came to here.
And approximately a week and a half, two
weeks later on a Saturday morning before sunrise, Mr.
Weller was in there and was proceeding with this road. At
which time my wife and I went over and approached Mr.
Weller and told him we thought there was an agreement
nothing else would be done here until, you know, we had
come to some kind of conclusion here.
And Mr. Weller said, well, he was putting
the road in that day. And I said, well, it seems, you
know, I can't get a hold of my attorney or anything else,
and it seems like you've done this on a Saturday here so
that I can't do anything about it. And he says, that's
correct.
Q What is your concern about the location of
this road?
A The road goes over my drainage pipe which
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goes down through. The road goes right over the top of it,
and I'm afraid that the road -- my pipe's going to be
crushed because this --
Q Do you have any other specific concerns
besides that?
A Well, I won't be able to maintain the pipe
without a whole lot of added expense.
Q Such as?
A Well, you know, I'm going to have to tear a
road up. I'm going to have to do it immediately if someone
down the road here paves this road, you know. If someone
in the future paves this road, I'm going to have to pay to
repave it. I'm going to have a lot of extra expense that I
would not have with it being down through the field as it
previously was.
Q Have you observed the use of this road,
Mountain View Lane?
A The road is being used by an awful lot of
traffic at this point and time. There is a garage up the
road from me who does work on heavy trucks and stuff. They
come down there and they turn around. They back into that
driveway and back right over the top where my pipe is and
stuff to turn around. It's being used as a public
turnaround by them.
And there's just an awful lot of -- Mr.
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Weller runs his bulldozer -- his truck with his bulldozer
in and out there and stuff. I'm just afraid my pipe is
going to be crushed, and I'm going to end up with a
basement full of water, you know, and the basement's
partially finished. We have a washer and dryer, a furnace.
Everything is down there, you know. I'm going to be
destroyed if this floods.
MR. RISCH: Thank you. Your witness.
MR. STINE: Thank you.
CROSS EXAMINATION
BY MR. STINE:
Q Mr. Thompson, the drainage easement you
have, the pipe that goes through there, that currently is
discharging to a stream on Mr. Weller's property, is that
right?
A There's not actually a stream down there,
but it's a lowland that it eventually drains into, yes.
Q There is a channel it goes into?
A Eventually, yes.
Q It just doesn't run over the field
somewhere, there's actually a defined channel it discharges
into, is that right?
A I would say that there is a stream of water
when it rains on it. It's what they call a dry stream.
Q Okay. You said there was an agreement at
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some point and time to not finish the road. Was that
agreement in writing or is that just some oral
representation that was discussed?
A It was not in writing, buL everyone
pertinent to it was there. Mr. Weller's attorney at that
time, Mr. Sponseller, for some reason who's no longer
involved in this, myself, my attorney, and Mr. Ickes were
there. And it was like I felt that there was a mutual
well, there was no doubt in my mind there was a mutual
agreement that they were going to continue negotiating here
until something was settled.
Q And about what time of the year was that?
Was that July, June? When was that?
A I believe -- it seems to me it was in June.
Q But you didn't seek to file for a
preliminary injunction until the end of December of this
year, is that right?
A That is correct because -- well, we had
filed papers, and there was supposed -- you know,
supposedly there was an agreement being worked upon at that
point and time that we didn't need to file this injunction,
and, you know, we haven't had any wet weather yet either.
Q So you basically waited six months on
something that you consider now an emergency?
A Yes, sir. We were fixing to get snow. When
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we get snow, we get a lot of drainage into the ground, and
that's when we've had a lot of trouble when we have a lot
of rain or, you know, a lot of snow when it melts and stuff
that's when and there's always been a problem.
Q With regard to the pipe and your fear of
crushing it, how deep is the pipe under what's called
Mountain View Lane? Do you have any idea?
A I have absolutely no idea how deep it is.
Q The same pipe passes under Middle Road, the
public road out there, is that right?
A That is correct.
Q Does that Middle Road get a fair amount of
traffic?
A It gets quite a bit of traffic, and the pipe
is protected there. I feel sure there were competent
people that put that in there, but it was never meant to be
drove over or anything down in the field so I'm sure the
same precautions were not taken down there, workers running
through an open field when there was no road there and
never any intentions of a road being there.
Q Before Mr. Weller bought the property and
even some years thereafter, what was that field used for?
Was it used for farming and so forth, agricultural
activities?
A Occasionally they would put a little bit of
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Q Not paved, not a paved road?
A No, it is not.
MR. STINE: Thank you. That's all I have.
CROSS EXAMINATION
BY MS. GREASON:
Q Sir, do you have any --
THE COURT: Wait. Who is representing whom
here? I did not realize there was another party. You are
representing?
MS. GREASON: The tenants, who are the
Calamans.
THE COURT: The Calamans are the tenants?
MS. GREASON: Yes, Your Honor.
THE COURT: Okay. Go ahead
BY MS. GREASON:
Q Sir, have you had any water in your basement
since you've owned that property?
A Since I've owned that property have I had
any water?
Q Yes, sir.
A I have had a little bit of seepage and
stuff, and I went down into the field, you know, when we
would have wet weather and stuff and see the water draining
out this drainpipe, yes, the discharge.
Q Have you had any water seepage in your home
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since the road has been installed?
A We've had nothing but dry weather since then
so I can't -- I would have to say you Know, we've not
had any hard rains, any big snows with any significant
melts at this point and time, so 1 cannot answer that I had
any trouble, no.
Q Sir, if your pipe w~s crushed by heavy
traffic coming over the road, how would that be corrected?
Could a new pipe be laid down?
A The road would have -- how could it be
corrected?
Q Yes.
MR. RISCH: I'ro going to object to the
question, Your Honor.
THE COURT: Sustained. He owns a house.
Next question.
THE WITNESS: You mean if I started __
THE COURT: I sustained. You do not have to
answer. Next question.
THE WITNESS: I"m ~'orry.
MS. GREASON: I have nothing further, Your
Honor.
THE COURT: Any redirect?
MR. RISCH: No, Your Honor.
THE COURT: Sir, you may step down.
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MR. RISCH: Your Honor, I would like to call
my next witness. I would like to call the Defendant Martin
Weller.
Whereupon,
MARTIN L. WELLER,
having been duly affirmed, testified as follows:
DIRECT EXAMINATION
BY MR. RISCH:
Q State your name.
A Martin L. Weller, and I reside at 58 Feaster
Road, Chambersburg, Pennsylvania.
Q What is your occupation?
A I'm a self-employed contractor.
Q Do you own any real estate in Upper Mifflin
Township, Cumberland County?
A Yes, I do.
Q Is it along Middle Road?
A It borders Middle Road and 997.
Q When did you acquire this real estate and
from whom?
A I acquired it from a Frank Butler, and I
acquired it towards the end of December of 1990.
Q Now, Mr. Thompson testified earlier
regarding a drainage easement on your property. Are you
familiar with this drainage easement area?
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A Are you referring to the 1977 one or the
'91?
Q I am '97 -- or '77.
A The '77?
Q Yes.
A Yes, I know about the drainage easement.
Q Are you familiar with the document that is
marked as Plaintiff's Exhibit A?
A Yeah, I got a copy of it here.
Q Okay. Are you generally familiar with the
terms of that agreement?
A I have some knowledge of it.
Q Do you admit or deny that that agreement
applies to your land in Upper Mifflin Township?
A Yes, that does apply to the farm, what we
call the Butler farm.
Q Are you familiar with the road known as
Mountain View Lane?
A Yes, I am familiar with that road or lane.
Q Is Mountain View Lane a private road that
runs across your property in Upper Mifflin Township?
A Yes, it's those three residential lots.
Q Do you admit or deny that Mountain View Lane
passes through that drainage easement described in the 1977
agreement?
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A No, it does not -- r believe it does not
pass through this drainage easement.
0 Are you familiar with the drainage pipe that
Mr. Thompson described in his testimony?
A Yes, r am aware of it.
0 Do you admit or deny that Mountain View Lane
passes over that pipe?
A Yes, it does pass over that drainage pipe.
o Did you participate in the construction of
Mountain View Lane, any part of it?
A Yes, I'm the one that constructed that
pipe
or, I'm sorry, the road, the lane.
o Did you encapsulate or otherwise protect the
pipe during the process of building that road?
A Okay. When I built the road, I took my time
and watched that I did not -- when I went acrossed it to
fill in with the shale and all, that there was no
settlement or anything like that. And I also before I even
went acrossed it asked Mr. Thompson if he wanted me to
replace it with something heavier like schedule 40 plastic
pipe.
o Were you present at a meeting on June 26,
1998, at Mountain View Lane?
A In that approximate time, yes, I was.
o At that meeting were you represented by
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counsel?
A Yes.
Q Who was that?
A Timothy Sponseller.
Q And at that time was Mountain View Lane
complete as complete as it is today?
A No, there was approximately about 150 feet
that wasn't completed.
Q At that meeting on June 26th, did Mr.
Sponseller agree on your behalf to cease construction of
Mountain View Lane?
A No, it was not.
Q What was your understanding?
A The understanding that I referred back to my
counsel is that we get a surveyor out and to locate this
drainage easement.
Q But there was no representation made by
Sponseller that the road would not be constructed any
further; is that your testimony?
A There was nothing from what I believe that I
got from my counsel that, you know, I was to stop
construction.
Q Your counsel being Sponseller?
A Pardon me?
Q Your counsel being Sponseller?
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A Yes.
Q That's who you referred to as your former
counsel.
A Yes.
Q On July 11th, 1998, did you finish
construction of Mountain View Lane?
A July 11th, yes, I did.
Q Did you have any communications with Mr.
Thompson or Mrs. Thompson that day?
A Yes, I did.
Q Did you represent to them that the reason
why you were completing it that day was because it was a
Saturday and the courts were closed and there was nothing
they could do about you completing it?
A
Yep.
MR. STINE:
THE COURT:
I object to that, Your Honor.
Overruled. You may answer. Did
you answer yes, sir?
THE WITNESS: Yes.
BY MR. RISCH:
Q Who was with you on July 11th when the road
was constructed?
A That was Mr. William Lowe.
Q I'm sorry, William?
A William Lowe.
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that was made up the 25th day of October, 1991.
THE COURT: Next question.
BY MR. RISCH:
Q Is that your signature on the second page,
Mr. Weller?
A Yes, it is.
Q Did Mr. Thompson sign this agreement?
A No, he did not sign.
Q On the second page in the second
paragraph or the third paragraph, excuse me, the
agreement purports that the 1977 agreement -- that is
plaintiff's exhibit --
THE COURT: Wait a minute. The agreement,
who signed the agreement? Tell me who signed it. You tell
me who signed it, sir.
THE WITNESS: I signed it and my wife, Diana
M. Weller, signed it.
THE COURT: Nobody else signed it?
THE WITNESS: Just Betty Ile that notarized
it.
THE COURT: Okay. Go ahead.
BY MR. RISCH:
Q In the third paragraph on the second page of
that agreement, the agreement purports that the 1977
agreement that is Plaintiff's Exhibit A has been replaced
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by this agreement or superseded, is that correct? Is that
your understanding of that paragraph as well?
A Yeah, that's my understanding of that
paragraph.
Q Is it your intention today that this 1992
agreement is to replace the 197) agreement, and that the
right-of-way agreement and survey attached to this in
effect replaces the 1977 drainage easement description?
A Back in 1991, I believe, you know, this was
a legal document. Now as of today, I believe it's no good.
Q So it's currently not your intention today
that this agreement replace the 1977 agreement?
A That is correct.
Q If that's the case, why are you still
communicating to the world through this document which is
of record that the 1977 agreement has been superseded? Why
is this still of record if you don't believe this is a
valid legal agreement anymore?
A Well, back when I signed this thing and up
to the date or the time when Mr. Thompson approached me
about this, and then I referred to Mr. Sponseller at that
time that I told him, you know, I had a problem with this
and -- or Mr. Thompson had a problem with this, and then of
course then beings he didn't -- the Thompsons didn't sign
it, then that's when I took note that this agreement was
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not valid then, and that would have been in 1998.
Q Do you feel some obligation to correct the
record if the document you signed you believe is no longer
legally valid?
A Yes, this deed of easement should be
rescinded.
Q Why hasn't it been?
A Pardon me?
Q Why hasn't it been?
A Well, we just haven't got that far yet as
far as, you know, we've been trying to work this out to get
this rescinded.
THE COURT: Is this thing recorded?
THE WITNESS: Yes, it has.
THE COURT: Next question.
BY MR. RISCH:
Q Is there a reason why this easement
agreement was recorded in order for you to save money
somewhere along the way?
A No, it wasn't.
Q Was it to make it easier for the engineer?
A No, it wasn't.
MR. RISCH: No more questions.
MR. STINE: Thank you.
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CROSS EXAMINATION
BY MR. STINE:
Q Mr. Weller, getting back to the construction
of the roadway at Mountain View Lane, what did you do when
you constructed that roadway?
A I removed the topsoil.
Q Which was about how deep?
A It was probably approximately on the average
about 8 to 10 inches deep. And I put the road in according
to -- or as close as I could to the plans, and they called
for a minimum of 6 inches of shale and 2 inches of 2A
modified.
Q Now, in the course of that construction, did
you disturb the area of the drainage pipe at all?
A No, I did not hit the drainage pipe.
Q So during construction that was still
covered by estimate how many feet of dirt?
A Okay. I did dig probably about, I would
say, three to five test pits back in 1991, and I did dig a
couple along this private road right-of-way. And I would
estimate it's probably down there about 4 feet or deeper
where it goes under the road.
Q Below the surface of the road?
A Urn-hum.
THE COURT: Your answer is how far -- what
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is the depth of the surface of the road you put in?
THE WITNESS: The depth of the road I would
say Is probably right around 8 inches of shale and 2 inches
of 2A modified.
THE COURT: So about 11 inches?
THE WITNESS: Yeah, about 8 to II, you know.
THE COURT: I am going to ask you again and
we will see what you say. Tell me what the depth of the
road is at the point that it goes over the pipe.
THE WITNESS: You're talking about the
bottom of the shale?
THE COURT: What you put in.
THE WITNESS: Okay. It's approximately
about 8 inches of shale, and then I put two inches of 2A
modified on top of that.
THE COURT: And then what is the depth
between that and where you believe the pipe is?
THE WITNESS: I would say probably at least
3 feet or deeper.
THE COURT: Next question.
BY MR. STINE:
Q So, again, Mr. Weller, when you constructep
the road, you did not disturb the pipe whatsoever?
A No, I did not.
Q Mr. Weller, getting onto the easement that
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has been marked as Plaintiff's Exhibit 8, a deed of
easement, could you enlighten us as to how that document
came about 7
A Okay. You're talking about the 19917
Q Yes.
A I went and talked with the Thompsons about
getting the bigger drainage easement, you know, reduced.
And I informed them at that time that part of their
drainage pipe was not on their drainage easement.
And so then Mr. Thompson was -- I want to
restate that. I asked Mr. Thompson, I said, the only way
we could get that located on this 50 foot drainage easement
is I would have to dig test pits to try to locate where the
pipe is because he could not tell me where the pipe was
when it ran down through my field.
So, like I said, I dug probably three to
five test pits to locate this, and then I had Mr. Runyon
come out and locate where I dug it up at. So then I
thought we had an understanding that we had an agreement
that, you know, I could get a new get the larger
drainage easement reduced to this 50 foot right-of-way
drainage easement.
So then I contacted my attorney at that
time, Mr. Sponseller, and I gave him a copy of the old
drainage easement because he's got that on here and to draw
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up a new drainage easement, and we included this survey.
So therefore at that time when we went in to
sign this thing the 25th oE October of 1991, I did have a
question to Mr. Sponseller, and I asked him, I said, why
doesn't the Thompsons have to sign? And he said that they
are not conveying or transferring any of the real estate.
So I just assumed, you know, that he knew what he was
doing. So we signed it, and then I took it and had it
recorded.
Q Did Mr. Sponseller suggest that you record
the document after it was signed?
A Yeah, so it would replace the old one.
Q So at no time did you have any intent to
file what would be considered an illegal or fraudulent
document, is that correct?
A At that time I thought it was all -- it was
legitimate.
MR. STINE: Thank you. That's all I have.
CROSS EXAMINATION
BY MS. GREASON:
Q Sir, now the property located along this
Mountain View Lane, you said that there are three
residential lots that use that right-of-way?
A Yes, there is, lots 12, 13, and 14.
Q And are you presently the owner of all three
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of those lots?
A Yes, I am.
Q And can you tell the Court which lots the
Calamans reside on?
A That would be lot 14.
Q And do you have a lease agreement for that
lot with the Ca1amans?
A Yes, they did sign a lease with me. I do
not have it along with me.
Q That's okay. Are there any other tenants
along that roadway?
A Yes, the Wards, Christopher and Sherry Ward.
Q What lot do they occupy?
A They would be on lot 13.
MS. GREASON: I have nothing further, Your
Honor.
THE COURT: What one is vacant?
THE WITNESS: Lot 12 because part of the old
drainage easement goes out over on lot 12.
THE COURT: It is vacant?
THE WITNESS: Yes, it is vacant.
THE COURT: Any redirect?
MR. RISCH: No, Your Honor.
THE COURT: Sir, you may step down.
MR. RISCH: I call my next witness, Mr.
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Steve Fisher.
Whereupon,
STEVEN FI SHER,
having been duly sworn/ testified as follows:
DIRECT EXAMINATION
BY MR. RISCH:
Q Would you please state your name.
A Steven Fisher.
Q And your address?
A 1565 Long's Gap Road, Carlisle,
Pennsylvania.
Q What is your occupation?
A Professional land surveyor.
Q How long have you had that profession?
A I've been licensed since 1974, been
surveying since before '66.
Q So in your profession, you are familiar with
subdivision plans and surveys?
A Yes, sir.
Q In your profession, you conduct surveys?
A That's correct.
Q In your profession, are you familiar with
land development plans including construction and design of
roads and storm water drainage systems?
A Yes, sir.
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Q In the course of your profession, are you
familiar with land owned by plaintiff and defendants
Wellers in Upper Mifflin Township, Cumberland County?
A Yes, I am.
Q Are you familiar with the location oE a
certain road in Upper Mifflin Township known as Mountain
View Lane?
A Yes.
Q Are you familiar with Plainti [[' fl Exil.l.bi.t A?
It was put into evidence a few minutes ago.
A Yes, I am.
Q Could you please describe generally wilat
that document describes?
A This is a right-of-way and easement. It's
entitled that is between Frank R. Butler and Harold
Ickes and Barbara Ickes, and it was prepared in 1977. It
gives Mr. Butler the right of a drainage area which lies
south of Middle Road, and I generally am going to say that
Middle Road runs in an east/west direction generally. The
Wellers property would be on the south of the road.
This easement is to start at a point 700
feet southeast of the graveyard, and it extends along the
road in roughly an easterly direction for 350 feet, and
then extends back in what was the Ickes' proporty for a
distance of 700 feet -- excuse me, tilo Butler property that
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was, I'm sorry.
Q I have here Plaintiff's Exhibit C which has
been stipulated to by the parties which is a blowup copy of
a subdivision plan that is at Book 63, Page 146-C, but it
has been blown up for the convenience of being able to see
where the subject property is located.
(Whereupon, Plaintiff's Exhibit C
was marked for identification.)
BY MR. RISCH:
Q Mr. Fisher, are you familiar with that?
A Yes, I am.
Q Now, were you asked to locate the drainage
easement as described in that 1977 agreement vis-a-vis
Mountain View Lane that was described earlier and the
drainage pipe that was described earlier?
A Yes, I was.
Q And did you do this?
A Yes.
Q And how did you do it and what was your
conclusion and how did you reach that conclusion?
A Well, it was my understanding that there was
some uncertainty as to the beginning point of the easement
as described in the 1977 document. That uncertainty was
whether or not the point that it was tied to, the 700 feet
east of the easement, was a point on the fence line which
32
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1 encompasses the graveyard and can bo :1I1Cn on thl:! Exhibit
2 C.
3 THE COURT: Just hold thllt liP, that C, so r
4 know what I am looking at. Okay. Go aIH!ild.
5 THE WITNESS: As r :Iald, thcro 1:1 a fence
6 line that's shown on this exhibit that: Ollcompas:ws a
7 graveyard, and the confusion comes in as to whether or not
8 that 700 feet is measured from that [ellCo line or in [act
9 from the title line of the Weller property as shown on this
10 plan.
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16 THE WITNESS: It's a portion of a
17 subdivision plan that's recorded, I believe, in Book 63,
18 Page 146, and it is a subdivision of Mr. Weller's property
19 which he just previously described lots 12, 13, and 14
20 being part of that.
21 THE COURT: Okay. Now I understand what
22 that is. Now, go ahead.
23 THE WITNESS: As I said, there was some
24 uncertainty as to where one would begin this easement, and
25 after reviewing the easement and lookin0 at this Exhibit C,
THE COURT: I'll tell you, I am confused.
What is Exhibit C? Tell me what Exhibit C is.
THE WITNESS: It is a portion of a -- may I
explain it?
THE COURT: Yes.
33
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(-,
1 one can see that there is a dash line on there that shows
2 and is labeled a 4-inch ADS pipe, and that's also the pipe
3 that Mr. Weller referred to and Mr. Thompson referred to as
4 being the drainage pipe leading from the Thompson property.
5 If one notices on the plan, that pipe lays
6 west of the eastern boundary line of lot number 11. Now, I
7 say that because it was my interpretation that if that pipe
8 was to be installed in the easement that the easement would
9 have to start, you would think, at some point west of that
10 pipe location.
11 So I, in fact, then measured from the
12 eastern fence line that surrounds the graveyard and
13 measured to the center line of what is known as Mountain
14 View Lane, and come up with the dimension of approximately
15 717 feet, which would mean that the center line of Mountain
16. View Lane would lay, in fact, 17 feet east of the western
17 line of the easement described in the 1977 document.
18 MR. RISCH: Your witness. No more
19 questions.
20 CROSS EXAMINATION
21 BY MR. STINE:
22 Q Mr. Fisher, getting back to the right-of-way
23 and easement which is labeled as Plaintiff's Exhibit A, you
24 referred to the description being 700 feet southeast of the
25 graveyard, is that correct?
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A That's correct, sir.
Q Do you also note in that description that it
generally describes easement and then it says as is more
fully set forth on the attached sketch?
A That's correct.
Q Did you review that sketch?
A Yes, I did.
Q And did you review the courses and distances
on that sketch?
A Yes, I did.
Q And based upon that sketch, do you have any
idea where that sketch would indicate the easement is?
A As I said, yes, I do. It says 700 feet from
the -- it would indicate that it's 700 feet from the title
line or the legal boundary line of Mr. Weller's property at
the graveyard.
Q Right.
A That's correct.
Q But you didn't take it from that point
though, you took it from some other arbitrary point, is
that correct?
A From another point, yes. I don't know
whether it was arbitrary. It was explained to me that
there was some uncertainty as to which point one should
measure from.
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could not find?
A That's correct.
Q Did you measure from that point where you
believe the railroad spike should have been?
A That's correct.
Q And so you are telling me your measurements
are different than the measurements on this plan?
A No. I'm telling you that the measurements
shown on this plan are, in fact, correct. It's just that I
could not physically find the corners to associate, say,
the road or any other thing with this plan other than those
nails.
Q Okay. From the railroad spike at the
northeastern corner of the graveyard to the railroad spike
at the beginning of Mountain View Road on this plan --
A Yes.
Q -- on Exhibit C, can you tell me how many
feet that is according to this plan?
A Yes, it's 656.95 feet.
Q From that point --
A Excuse me, 646.95.
Q Okay. From that point
A Excuse me. I tried to do it in my head.
THE COURT: Take your time and be sure you
have the right figure.
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THE WITNESS: I'm adding 323.10 and 326.85.
I got 649.95 feet.
BY MS. GREASON:
Q From that number to the 717 feet, 717 feet,
where do you get the difference, this 75 feet?
A Okay. That's to the fence at the graveyard.
Q In Plaintiff's Exhibit A, is there any fence
listed or referenced?
A No, but it was my understanding that there
was some uncertainty between the parties as to where, in
fact, one would begin to describe that, and all I merely
did was to try to illustrate the differences that I found.
Q So it is possible that this agreement met
from the northeastern corner of the graveyard the Mountain
View Lane would not be within the easement, is that
correct?
A It would depend where one would define the
northeast corner of the graveyard, yes. That's the whole
crux of the thing, where does the graveyard lay.
Q On Plaintiff's Exhibit A, can you read that
first line that starts out said drainage area?
A Said drainage area commences at a point 700
feet southeast of the graveyard and extending along the
northern boundary of the said tract of land some 350
feet -- is that enough -- and extending --
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Q Tha t' s enough. Thank you. So it's common
for the drainage easement commencing 700 feet from the
southeast of the graveyard?
A No, it's saying -- you start at the -- it's
my understanding that lay people wrote this agreement first
of all.
Q Okay.
A I think if a professional wrote it maybe it
might have been a little bit more exact. That's just
from -- what this is trying to tell you to do is start at
the graveyard and measure 700 feet along the road in a
southeasterly direction.
Q So in your professional opinion, if you
started that measurement of 700 feet from the northeastern
corner of the graveyard, then the road would not be within
the easement, is that correct?
A It depends on where you define the
graveyard, that's correct.
Q I'm asking if you start from the
northeastern corner of the graveyard.
A Well, to the layperson the graveyard was
confined, maybe, within the limits of the fence. That's
the whole issue, and it's my understanding -- in my 30 some
years of experience, I've reviewed a lot of documents, and
a lot of times the intent has not been put on the record.
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Q On the third page of Plaintiff's Exhibit A,
what appears to be a hand drawn sketch of the area --
A Yes.
Q -- and written across the area we're
discussing says 700 feet, is that correct?
A That's correct.
Q Does that appear to go from the northeastern
corner of the graveyard to the beginning of the easement?
A Yes, from the title line of the graveyard,
correct.
Q So if you use those same measurements on
Plaintiff's Exhibit C, would that not be from the
northeastern corner?
A From the title line, yes.
MS. GREASON: I have nothing further, Your
Honor.
THE COURT:
MR. RISCH:
Anything else?
Just to clarify for the record,
Your Honor.
REDIRECT EXAMINATION
BY MR. RISCH:
Q If one starts to measure from the fence at
the cemetery, the graveyard, 700 feet, if you start at the
starting point being the fence, then the road Mountain View
Lane would be within the drainage easement area?
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A That's correct.
MR. RISCH: Thank you. No other questions.
THE COURT: Anything else?
MR. STINE: No.
THE COURT: Sir, you are excused.
THE WITNESS: Thank you.
MR. RISCH: Your Honor, I would like to call
my final witness, Mr. Harold Ickes.
Whereupon,
HAROLD ICKES,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. RISCH:
Q Please state your name for the record.
A Harold Ickes, 324 Mountain Road. I'm a
laborer.
Q Have you ever owned property on Middle Road
in Upper Mifflin Township, Cumberland County?
A Yes, I did.
Q Do you own this property now?
A No, I sold it to Mr. Thompson.
Q When did you do that?
A 1977.
Q While owning that land, did you enter into
any agreements with any neighbors?
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A Yes.
Q What kind of agreements?
A Easement right.
Q What kind of easement right?
A The water drainage.
Q With whom did you so enter?
A Mr. 8utler.
Q Before you somewhere is Plaintiff's Exhibit
A. I have another copy here. Do you recognize that
document?
A
Q
A
you know.
Q
A
Q
A
Q
A
Q
Yes.
What is it?
It's a right to take the pipe down through,
It's the agreement you entered into?
Yes, the easement right.
Did you sign that agreement?
Yes, I did.
Are you generally familiar with its terms?
Yes.
Did you participate in the drafting of the
agreement in anyway?
A Yes.
Q Mr. Thompson testified regarding a drainage
pipe. Are you familiar with that pipe?
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A Yes, I am.
Q Why are you familiar with that pipe?
A 8ecause I put it in.
Q Why did you put that in?
A To keep my basement from flooding.
Q Did you put that pipe in before or after you
signed that agreement, Plaintiff's Exhibit A?
A
This here?
Q
Yes.
A
8efore I put it in or after?
Q
Did you sign that agreement before or after
12 you ins taIled the pipe?
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A
After.
Q
Which did you do after, sign the agreement?
A
I signed the agreement after I put the pipe
16 in.
17
Q
In the second paragraph of that agreement, a
18 term was used graveyard. What did you mean by that term
19 graveyard?
20
MR. STINE: Objection, Your Honor. This
21 calls for testimony -- oral testimony to contradict or
22 modify the terms of a written document violating the Parole
23 Evidence Rule. I would object to this testimony being
24 entered.
25
THE COURT: What is your response to that?
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MR. STINE:
THE COURT:
r-
Objection, Your Honor.
Overruled. It is not a
violation of Parole Evidence. Go ahead.
THE WITNESS: A marking point to start my __
to measure from.
8Y MR. RISCH:
Q Well, did you consider the graveyard to be
bigger than the area where the graves and the fence are?
Would you consider that to be the graveyard or was the
graveyard the bigger area?
A I expected that to be the graveyard, just
where the post was and the fence.
Q Well, in the second paragraph again the
agreement states, commencing at a point 700 feet southeast
of the graveyard. Where on the graveyard did you intend
that measurement to begin?
A At the fence post __
MR. STINE:
THE WITNESS:
THE COURT:
Objection, Your Honor.
at the corner
Hold on. That one I sustain.
That is stricken. The answer is stricken, not made a part
of the record. Next question.
BY MR. RISCH:
Q Have you ever seen Plaintiff's Exhibit C
which is the blown up subdivision map?
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A Never seen that one.
Q When looking at it, can you identify where
Snoke's graveyard is on that exhibit?
A I suppose that's it right there.
Q What exactly are you pointing at?
A There. It would be around here.
Q Is that the graveyard?
A No, this is the graveyard right here.
Q What is that? Would you point that out to
the Judge, please.
A (Witness indicated.'
MR. RISCH: Let the record reflect that the
witness is pointing to --
MR. STINE: Well, Your Honor, this is just
another back door attempt to get in the same evidence
that --
THE COURT: No, he showed me where the
graveyard is. That is all he is doing on Exhibit C. I see
it. That is not Parole Evidence.
8Y MR. RISCH:
Q Why did you enter into that easement
agreement, the 1977 agreement with Mr. 8utler? Why did you
enter into that agreement?
A So I could put the pipe down through his
field.
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Q Was the pipe already there?
A The pipe was already there. We put the pipe
in and then done the measuring and everything from the
graveyard fence down and made up this easement thing. He
signed it and I signed it and my wife signed it.
Q Are you testifying then that you built the
pipe and then had the agreement drafted and executed,
signed, after the pipe was installed?
A Yeah, after the pipe was installed.
MR. RISCH: Thank you. I have no more
questions.
THE COURT: Cross.
CROSS EXAMINATION
BY MR. STINE:
Q Mr. Ickes, getting back to Plaintiff's
Exhibit A, this drawing on the third page, that is the
drawing that was attached to that easement, is that right?
You and Mr. 8utler attached the drawing on page 3 to that
easement agreement, is that correct?
A Which one do you got?
Q I'm talking about the 1977 easement from
Frank 8utler to you.
A Yep.
Q You attached a drawing to the back of that,
is that right?
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A Mr. Douglas did that.
Q Mr. Douglas. He was the attorney involved?
A As far as I -- I don't know. I guess he's
the one that drawed it up because his name is on the paper.
Q But the drawing was attached to the back of
that, is that right?
A Yes, sir. I didn't touch it.
MR. STINE: That's all I have.
CROSS EXAMINATION
BY MS. GREASON:
Q Sir, would you happen to know which Mr.
Douglas it was? There is a couple of Douglas attorneys in
town. Would you have a first name by any chance?
A I don't know which one it was.
Q Okay.
THE COURT:
than one in those days.
probably.
There weren't anymore Douglases
The kids weren't even born
MS. GREASON: Sir, that's before my time.
BY MS. GREASON:
Q Sir, do you have a copy of Plaintiff's
Exhibit A in front of you? It's the 1977 agreement.
A Yeah.
Q Can you turn to page 3 for me which is the
drawing.
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A Yeah.
Q Anywhere on that drawing does it show a
fence around the graveyard?
A Yeah, right here.
Q You are saying that square that's outlined
around the graveyard is the fence?
A Yep. Yeah.
MS. GREASON: Your Honor, may I approach the
witness?
THE COURT: Yes.
BY MS. GREASON:
Q Plaintiff's Exhibit No. C, is this the
fenced-in area?
A Yep.
Q So would you agree that this -- the dark
bolded outline around the graveyard is different than the
thin line with the hash marks through it?
A Yeah.
Q So you are saying the thin line with the
hash marks is the fence area?
A Yep.
Q Can you tell me on Plaintiff's Exhibit A
where the fence is versus where the main outline of the
whole graveyard area is? Do you see that on Plaintiff's
Exhibit A?
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A I don't understand what you're saying.
We're looking at the same thing in those papers.
Q Sir, I guess what I'm asking is on
Plaintiff's Exhibit C you see two squares on the graveyard
area?
A Yeah.
Q On Plaintiff's Exhibit A, do you see two
different squares?
A No, just one.
Q Can you tell me on Plaintiff's Exhibit A if
that is the fence or the outline of the entire graveyard
area or are you unsure?
A Well, I don't know at this point. Somebody
said it was changed so I don't know.
Q Okay, sir.
A Probably this is it.
Q Sir, you said you took the measurements from
the fence post in the graveyard out 700 feet before you
laid your pipe?
A When we laid the pipe. That was done after
the pipe was laid.
Q The agreement was done after the pipe was
laid. Okay. Did you measure? You personally went out
there and measured or it was an engineer or someone else
went out and measured?
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A Some other guy measured it.
Q So you were not the one that measured. Were
you there when it was being measured?
A Yeah, I was there.
Q Did they measure from the fence post to --
A They measured from the fence post from
the lower fence post from the graveyard. That's where it
was measured from, down 700 feet to the top of the pipe.
Q And it did not concern you that the
agreement did not say from the northeast fence post of the
graveyard, just the graveyard?
A No, it didn't bother me because, I mean,
that was I expected that was to be the right thing to
do.
Q But it is your recollection that Attorney
Douglas was on this matter, drew the paperwork up?
A What's that?
Q Attorney Douglas drew this paperwork up as
far as you know?
A Yeah.
MS. GREASON: Thank you. I have nothing
further, Your Honor.
THE COURT: Any redirect?
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REDIRECT EXAMINATION
BY MR. RISCH:
Q Mr. Ickes, can you tell us whether or not it
was your intention in entering into that agreement that the
pipe would be in the drainage easement area?
A Yes.
MR. RISCH: No more questions, Your Honor.
THE COURT: Anything else?
MR. STINE: I have nothing further.
MS. GREASON: Nothing further, Your Honor.
THE COURT: Sir, you are excused.
MR. RISCH: Your Honor, the plaintiffs rest.
THE COURT: Respondent.
MR. STINE: YoU!: Honor, I have one witness
to call. Sam Runyon.
Whereupon,
SAM RUNYON,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. STINE:
Q Would you please state your name and
occupation.
A Sam Runyon, professional land surveyor.
Q Where is your land surveying practice?
A 479 Lincoln Way East, Chambersburg,
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Pennsylvania.
Q And how many years have you been a land
surveyor?
A Twenty-five plus.
Q And during those 25 years, what types of
work have you been doing?
A Construction stakeouts, subdivisions, land
development plans.
Q General survey work?
A General surveying, yes.
Q Are you familiar with the property in
question today along Middle Road?
A Yes.
Q And have you prepared a survey of at least a
portion of that property that involves the drainage
easement and Mountain View Lane?
A Yes.
MR. STINE: Your Honor, may I approach the
witness?
THE COURT: Yes.
BY MR. STINE:
Q Mr. Runyon, I show you a document that's
going to be marked Defendants' Exhibit A.
(Whereupon, Defendants' Exhibit A
was marked for identification.)
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BY MR. STINE:
Q Would you please identify that document for
the Court.
A This is a drainage easement location that we
did show the 1977 drainage easement with the Butler.
Q And what also does the drawing show?
A It also shows the subdivision plan that we
had done for Mr. Weller and is recorded in Plan Book 63,
Page 146, the property lines.
Q Does it also show the current location of
Mountain View Lane?
A Yes.
Q Mr. Runyon, could you tell the Court how you
went about conducting this survey, what you used in order
to come up with this survey plan?
A From the 1977 drainage easement, there was
two distances shown on the plat that was given. One was
the 700 foot reference from the northeastern corner of
Snoke's graveyard.
Also there was another distance on the plan
which shows a distance to another corner of the boundary of
the farm, which is a 545.05 on the plan. We show that tie
distance as being 543.17 tie. So that's how we came about
with the location of the drainage easement.
Q So what you are telling us then is that you
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prepared this survey in accordance with the plan that was
attached to the 1977 easement agreement matching up the
courses and distances on that drawing, is that right?
A Yes.
Q Now, what does this survey show with regard
to the drainage easement and Mountain View Lane?
THE COURT: I tell you what, I am going to
take a break. Gerry, get some kind of an easel so I can
look at this as he is telling me.
MR. STINE: Would you like your own copy,
Your Honor?
THE COURT: Yes. But I will still take a
break. That helps. Reconvene at five of. You may step
down, sir.
(Whereupon, a brief recess was taken.'
BY MR. STINE:
Q Mr. Runyon, could you please describe for
the Court what this survey shows with regard to the
drainage easement in relationship to the location of
Mountain View Lane.
A Okay. The 1977 drainage easement lies
mostly to the east of the Mountain View Lane. There is a
small portion of 2 to 3 feet that may lie within that
drainage easement.
Q Now, that's the right-of-way?
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A The right-of-way, that's correct.
Q But the actual paved cartway of Mountain
View Lane, is that within the drainage easement?
A No.
Q No, it is not. How is that paved cartway
indicated on the drawing?
A It's shown near the western most line of
Mountain View Lane right-of-way.
Q You had explained previously that the
distance from the corner of Snoke's graveyard to the corner
of the easement, 700 feet, checked and also what was the
verification you did with that to make sure it was in the
right -- the drainage easement was in the right position?
A The other tie distance is to the east of the
drainage easement and is shown on the pIan -- our plan of
distance of 543.17 tie to an existing property corner of
the farm. On the right-of-way agreement is shown as 545.05
to that same corner.
Q So what you are saying is basically it
checks out on both ends?
A
Yes, the location checks on both ends.
Q Now, you were here for the testimony of Mr.
Fisher, is that correct?
A Yes.
Q And you heard what his findings were with
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about, Defendant's Exhibit A, I believe, is the cemetery or
graveyard fence shown on the plan?
A No.
Q Why is it not shown on the plan?
A Well, the only representation this plan
shows is the drainage easement with respect to the property
line as I have previously stated.
Q Are you familiar visually with this
graveyard?
A Yes.
Q Are you familiar with the Plaintiff's
Exhibit C which is a blowup of the subdivision plan?
A Yes.
Q And has your scale on it?
A Yes.
Q On that plan, a fence appears?
A Yes.
Q Looking at the agreement or looking at the
blowup of the subdivision plan Plaintiff's Exhibit C, to
the right of that fenced area that is indicated on the
subdivision plan, are there any graves?
A No.
Q What is there at those locations?
A Now it's just a field.
Q Just a field?
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A Um-hum.
Q Are there any trees in that field area?
A Now or when we did the survey?
Q Now.
A Now, no.
Q Where are the, if anyplace, on the 1977
agreement, which is Plaintiff's Exhibit A, is the
graveyard the term graveyard defined?
A On the agreement?
Q On the agreement, the 1977 agreement
Plaintiff's Exhibit A.
A Where is it defined?
Q Where is graveyard defined? How do we know
what graveyard means?
A Well, it shows you courses and distances
around the graveyard. It's matched with what we show on
the pIan.
Q Was that the graveyard or the property that
is considered to be owned by the graveyard?
A Yeah, according to this, that's marked
graveyard.
Q Is there a difference between a graveyard
being a fenced in small area and a large piece of ground
that simply might be owned by the graveyard?
A No, not if they have title to it there isn't
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any difference to it.
Q Well, hypothetically if the agreement
measured 700 feet from the lighthouse and the lighthouse is
more than just a lighthouse but an acre of property around
it, would you measure from the lighthouse or from the
property boundary?
A Depending how it was written, I would
measure from the property boundary, not the lighthouse.
Q Even though it says from the lighthouse?
A Yeah. I've seen plenty of cemeteries that
still don't have burial grounds on them, they are vacant,
if that's what you are asking.
Q On page 3 of Defendant's Exhibit
Plaintiff's Exhibit A, the 1977 agreement --
A Um-hum.
Q On page 3, which is that drawn map, where
exactly is the 700 feet tied to any specific mark? There's
courses and distances on there, yes, but how do you know
it's either particular mark?
A At the northeastern corner of the cemetery
and you could also scale that distance, and it also shows
it to scale on the plan because the scale on this plan on
Page 3 was 1 inch equals 400 feet, and it scales 700 feet
from that corner.
Q Now, you testified that the drainage
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easement or the drainage pipe that was described earlier is
actually not within the drainage easement ar.ea as you
characterized the 1977 agreement, is that correct?
A A portion of the pipe isn't, yes.
Q Is not. Which portion is that?
A The portion that crosses the township road,
Middle Road, isn't. It doesn't start within the drainage
easement.
Q
Mr. Ickes
A
Q
agreement?
A
Q
Were you here for the testimony provided by
Yes.
-- one of the original parties to the
Um-hum.
For one familiar with this land and asked to
do a survey, do you find it odd that the one that had a
part in drafting the agreement admittedly designed around
an existing pipe would write an agreement that resulted in
the pipe not being within the drainage area?
A Do I find it odd?
Q Do you find that odd, professionally
disturbing?
A I've seen single family homes built over the
lot, so anything can happen.
Q Did you make any effort to ascertain what
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the term graveyard meant in this agreement? Did you speak
to Mr. Ickes who was an original party to the agreement?
A No.
Q Did you create and record the subdivision
plans that are of record and attached to plaintiff's
complaint that are applicable to Mr. Weller's property in
Upper Mifflin Township?
A Yes.
Q Does your surveying seal appear on those
recorded plans?
A Yes.
Q On those plans, did you indicate the
location or the proposed location of Mountain View Lane?
A Yes.
Q On those plans, did you indicate the
location of the easement as described in the 1992 deeded
easement, Plaintiff's Exhibit B?
A Yes.
Q On those plans, did you indicate the
location of the easement as described in the 1977 easement
agreement, Plaintiff's Exhibit A?
A No.
Q Mr. Weller testified earlier today that he
no longer considers the 1992 deed of easement to be legally
valid. Does that affect the correctness of your plans now
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of record in Cumberland County?
A Yes, it would.
Q Given that that is Defendant Weller's
current position, do you have any professional obligation
as the one who recorded and sealed these plans to see that
the plans that are now of record are corrected in someway?
A Yes, I believe the attorney that wrote the
agreement should make sure it happens --
Q What about --
A -- and that they are corrected.
Q What about the subdivision plans that you
recorded?
A I guess that would be between attorneys of
how they want to handle that.
Q Who would pay for the services to do this if
these plans are deemed --
THE COURT: What do I care? Next question.
MR. RISCH: I have nothing further, Your
Honor.
CROSS EXAMINATION
BY MS. GREASON:
Q Sir, now, on Defendant's Exhibit A, you
outlined the easement in accordance with the 1977
agreement, is that correct?
A Yes.
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Q Now, you found that easement area by using
two points, is that correct?
A Yes.
Q The 700 feet to the west and the 545 feet to
the east?
A Yes.
Q In your professional opinion, is that a
better call than someone who just uses one reference point?
A Yes.
MS. GREASON: I have nothing further, Your
Honor.
THE COURT:
MR. STINE:
Any redirect?
I have one question.
REDIRECT EXAMINATION
BY MR. STINE:
Q Mr. Runyon, I direct your attention to the
drawing attached to Plaintiff's Exhibit A, right-of-way
easement. This is in reference to the question regarding
how did you determine what the graveyard was.
If you look at the drawing where the courses
and distances go around the Snoke's graveyard, what is the
word that's written in there on the property? Can you read
that on your copy?
A Graveyard.
Q It says graveyard, doesn't it?
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A Um-hum.
Q Would that indicate to you that that little
box there is the graveyard?
A Yes.
MR. STINE: Thank you. Nothing further,
Your Honor.
THE COURT: Any recross, plaintiff?
MR. RISCH: No, Your Honor.
THE COURT: Any further recross?
MS. GREASON: Your Honor, I have one
clarification point of that matter.
RECROSS EXAMINATION
BY MS. GREASON:
Q Sir, on the meets and bounds that are given
on Plaintiff's Exhibit A, which is the older drawing, did
those numbers around the graveyard correspond with
Plaintiff's Exhibit No. C, the dark lines?
A Yes.
Q And it's from that dark line that the 700
feet is measured?
A That's correct.
MS. GREASON: Thank you, sir. I have
nothing further, Your Honor.
THE COURT: Now, I think I understand it,
but I have got one question. You heard the testimony of
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1 Mr. Fisher?
2 THE WITNESS: Um-hum.
3 THE COURT: He says this pipe comes under
4 the road at a point that is in the drainage easement,
5 right?
6 THE WITNESS: Yes.
7 THE COURT: And you say it does not?
8 THE WITNESS: It doesn't.
9 THE COURT: And essentially the reason you
10 disagree with him in a nutshell is?
11 THE WITNESS: The agreement, '77 agreement.
12 THE COURT: Well, you are measuring from
13 different points, right?
14 THE WITNESS: Yes.
15 THE COURT: You are measuring from what
16 point?
17 THE WITNESS: I'm measuring from the point
18 that's called out on the agreement.
19 THE COURT: Which is?
20 THE WITNESS: Which is the northeasterly
21 corner of the graveyard.
22 THE COURT: The corner of graveyard. 700
23 feet?
24 THE WITNESS: Yes.
25 THE COURT: And he is measuring from?
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1 THE WITNESS: He's measuring from the fenced
2 area.
3 THE COURT: Of the graveyard?
4 THE WITNESS: Of the graveyard.
5 THE COURT: I thought I understood that to
6 be correct, but I wanted to be sure. Which is within the
7 graveyard?
8 THE WITNESS: Yeah, it's within the graved
9 sites within the buried plots.
10 THE COURT: It does not come out to what you
11 say is the boundary -- the real boundary of the graveyard.
12 Is that how I am understanding it?
13 THE WITNESS: That's correct.
14 THE COURT: You may step down. You are
15 excused. Let's talk more about the Parole Evidence Rule
16 and exceptions to it. Are you saying that Mr. Ickes should
17 be allowed to testify as to where the 700 feet started?
18 MR. RISCH: Yes, Your Honor. That would
19 define graveyard, what he meant by graveyard.
20 THE COURT: And you are saying that he
21 should be allowed to define the graveyard why?
22 MR. RISCH: Because the agreement is very'
23 ambiguous.
24 THE COURT: It's ambiguous, you can't tell?
25 MR. RISCH: We don't know what it means. It
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1 says graveyard. There's courses and distances on the third
2 page, but there is no points. It's written 700 feet.
3 THE COURT: All right. It is ambiguous?
4 MR. RISCH: It is very ambiguous, Your
5 Honor.
6 THE COURT: Isn't ambigui ty a reason to
7 allow Parole Evidence in?
8 MR. STINE: It would be if it were
9 ambiguous, but the legal description provided in this
10 particular right-of-way agreement sets forth some general
11 courses or some general distances, and then it says as is
12 more fully set forth on the sketch attached.
13 The sketch attached gives courses and
14 distances from a property corner, the corner of then Mr.
15 8utler's property around the graveyard area which is
16 labeled graveyard and so on around the rest of the
17 property.
18 THE COURT: Now, hold on. I want to see
19 that. Said drainage area commences at a point 700 feet
20 southeast of the graveyard and extending along the northern
21 boundary of said tract of land some 350 feet. What tract
22 of land is that referring to? The northern boundary of
23 said tract of land. What is that, the graveyard?
24 MR. RISCH: No.
25 THE COURT: I am asking you.
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MR. STINE: The said tract of land would be
Mr. Weller's tract currently --
THE COURT: Weller's tract. 350 feet and
extending into the said tract of land approximately 750
feet as more fully described in the sketch. So you are
saying the starting point on that as shown by the sketch
is --
MR. STINE:
THE COURT:
MR. STINE:
Yes.
what point?
It would be -- I believe it's
the northeast corner of the Weller property.
THE COURT: Which on this sketch is where?
MR. STINE: That would be this corner, Your
Honor, up in the upper --
THE COURT:
MR. STINE:
Up here?
Upper left-hand corner of the
drawing is where that beginning is.
THE COURT: I want to be sure I understand
what you are saying which point it is. So you are saying
that your surveyor -- so you are saying that is the
starting point that makes the description of what the
graveyard is nonambiguous?
MR. STINE:
THE COURT:
MR. RISCH:
That's correct.
What is your response to that?
The response to that is this is
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1 the general drawing of probably -- well, we don't know, but
2 it appears to be a tax map sketch. The courses and
3 distances were copied off of the tax map based on the
4 8utler survey from, I think, 1945 which is the deed and is
5 of record, and then that was simply done for convenience.
6 But that 700 feet it could be I believe a
7 valid interpretation but not necessarily the only
8 interpretation is that that 700 feet ties to that property
9 corner, but that the parties -- and we have the rare luxury
10 of having a party to the original agreement -- is that that
11 is not the case, that no one knew where that cemetery
12 boundary was.
13 It's a big chunk of land, but the cemetery
14 which has been there for well over a hundred years is a
15 small fenced-in area with trees, and then that is what
16 people provincially believe is the cemetery and the
17 graveyard, and that that map on the back -- it's no more
18 scientifically accurate than the entire agreement. It's
19 one big ambiguity, not that everything is fair game, but
20 the definition of a graveyard definitely is ambiguous, and'
21 I believe it should be allowed.
22 THE COURT: I am going to overrule my
23 earlier ruling. I think it is ambiguous. I am going to
24 allow testimony. It doesn't say I am going to decide the
25 case, but I am going to allow the testimony by Ickes over
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the objection that it is Parole Evidence by respondent.
You can retake the stand, sir. You are already sworn in.
HAROLD ICKES, recalled.
DIRECT EXAMINATION
8Y MR. RISCH:
Q Mr. Ickes, we'll resume where we left off.
In Plaintiff's Exhibit A, which is in front of you, on the
first page of that agreement it states, commencing at a
point 700 feet southeast of the graveyard. At what point
on the graveyard did you intend that that measurement
begin?
A At the lower side.
Q I'm sorry?
A The lower side of the graveyard.
Q Which consists of?
A 700 feet from the post down to the easement.
Q What post is that?
A The graveyard post.
Q Which is where? Which is part of what?
A On the lower side of the graveyard.
Q Is it part of a fence?
A Yeah.
Q Is the
MR. RISCH: Well, thank you. I don't have
anymore questions.
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THE COURT: And you put the pipe in before
the agreement was written?
THE WITNESS: Yeah.
THE COURT: Okay. Cross.
CROSS EXAMINATION
BY MR. STINE:
Q
place?
A
Q
A
Q
A
Q
Possibly you put the pipe in the wrong
I don't think so.
It's Possible though?
No.
You don't think it's possible?
I know where I put it.
Do you know where you put the end of the
pipe, where the outflow is?
A Yes, indeed.
Q Do you think that's within the easement?
A Yes, it is.
Q If we told you that it wasn't, would that
surprise you?
A No.
MR. STINE: Nothing further.
MS. GREASON: I have nothing, Your Honor.
THE COURT: Anything else?
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REDIRECT EXAMINATION
BY MR. RISCH:
Q So to clarify, it was your intention when
you entered into that agreement and you testified you
entered into the agreement after the pipe was put in that
you wanted that easement agreement to describe where that
pipe was?
A That's right.
Q And it was your intention, as you testified
earlier, that the measurement was to begin at the cemetery
post?
A That's right, up at the post at the
graveyard, where the corner graveyard to the fence.
MR. RISCH: Thank you. No further
questions.
THE COURT: Anything else?
MR. STINE: No, Your Honor.
MS. GREASON: Nothing, Your Honor.
THE COURT: Sir, you may step down. Any
further witnesses?
MR. STINE: No, Your Honor.
THE COURT: Any witnesses?
MS. GREASON: No, Your Honor.
THE COURT: Any rebuttal?
MR. RISCH: No, Your Honor.
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THE COURT: As far as all exhibits, any
objection of any party to any of the parties' exhibits?
MS. GREASON: No, Your Honor.
MR. STINE: No.
MR. RISCH: No.
THE COURT: They are all admitted. The
record is closed. Argument, moving party, off the record.
(Whereupon, argument was held off
the record.)
THE COURT: Back on the record. I am going
to open up the record to have the testimony of the Calamans
as to ingress and egress to their property.
MS. GREASON: Your Honor, if one of the
other attorneys would like to call them. I can put them on
but --
THE COURT: Yes, put them on. Tell me about
where they live and how they get there, sure.
Whereupon,
MELANIE CALAMAN,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
8Y MS. GREASON:
Q Ma'am, would you state your name and address
for the record.
A Melanie Calaman. We live at 6 Mountain View
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Lane.
Q Do you own that land?
A No, we rent it.
Q And who's your landlord?
A Martin Weller.
MS. GREASON: Your Honor, if you would bear
with me, I need to find a map.
THE COURT: Sure.
MS. GREASON: Your Honor, I don't have extra
copies. I will mark this Additional Defendants' Exhibit A.
(Whereupon, Additional Defendants' Exhibit
A was marked for identification.)
BY MS. GREASON:
Q Miss Calaman, could you identify that record
for me or that document.
A It's our lane and then our --
THE COURT: Ma'am, would you speak right
into the microphone.
THE WITNESS: It's our -- it's showing our
ground with the lane and where the easement comes through.
8Y MS. GREASON:
Q And on that, can you tell me which lot you
live on?
A Number 14.
Q And there shows an access going from Middle
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Road down to lot 14. Is that your only access to that lot?
Yes, it is.
And the Load was put in this summer, is that
A
Q
correct?
A
Q
A
last year.
Q
A
Yes.
When did you move onto lot number 14?
I believe it was the beginning of November
Of 1997?
Would that be --
THE COURT: Wait. Let's go back. When was
the road put in?
THE WITNESS: It was put in June. I think
it was in June that it was finished.
8Y MS. GREASON:
Q Of what year?
A 1998.
Q And you moved onto lot number 14 when?
A It would be November '97, yeah, November
'97.
Q And so how did you access your lot before
the road was put in?
A We came down a different lane that is used
for another trailer, and then we drove through a field to
get to our lane -- I mean, to our lot.
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Q You are saying it was too soft so you could
only get your oil delivered when it was cold enough that
the ground froze?
A Yeah.
Q Were you notified by any emergency personnel
that you cannot do that?
A Yeah. I was notified by the State Police a
couple of times asking me if I had a right-of-way yet.
They were concerned about emergency vehicles because I have
a five-year-old daughter.
Q Did you ever get stuck in the field?
A Us personally, no, not that I can recall.
Q Do you know if anybody else got stuck in
that field trying to get back to that area?
A If I'm not mistaken, I think the oil truck
either got stuck -- yeah, the oil truck I'm pretty sure did
get stuck once, and Mark Weller got stuck once. Theyare
the only two that I recall.
Q And you have a child, is that correct?
A Yes, I do.
Q And do you know is she in school yet?
A No. She will go this year.
Q And do you know how you would get her across
that field to get to school?
A No, I didn't think of that.
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MS. GREASON: I have nothing further, Your
Honor.
CROSS EXAMINATION
BY MR. RISCH:
Q Mrs. Calaman, you testified that you used to
gain access to this property in a way other than Mountain
View Lane, is tha t correct?
A Yes.
Q Is it now impossible to use that other means
to gain access to your property?
A Well, there's now a trailer sitting on that
lot for one, and for the last year it was hard getting to
and from our property.
Q
When was that trailer that's now sitting
there appear there?
A When did they move it in?
Q When did that trailer get placed there?
A I can't recall a date. It's only been a
couple months if that. It hasn't been long.
Q Do you know if it was after or before you
were served with the complaint that was filed last summer?
A It was right after.
Q Right after?
A Right after.
Q How soon after, do you recall?
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A Maybe a couple weeks.
Q Were you told that you could no longer gain
access to that road or to the public right-of-way through
the prior way?
A I'm sorry?
Q Were you ever told that you couldn't use the
old way?
A Well, by Mark Weller because it does __
yeah, it interferes with the other lots.
Q So he told you to stop using it?
A Yeah, he told us to use our roadway.
Q Your right-of-way being Mountain View Lane?
A Yeah, yeah. I'm sorry.
Q Did he tell you when Mountain View Lane was
built that there was a dispute as to whether or not it
should be there?
A Yeah, we were aware of that.
Q Were you aware that you could be sued for
that?
A Yeah. But I rent so we more or less do what
Martin Weller tells us to.
MR. RISCH: I don't have anymore questions,
Your Honor.
MR. STINE: I have no particular questions.
THE COURT: Where you rent is there a house
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1 or a trailer? What is on your property, ma'am?
2 THE WITNESS: We have a mobile home.
3 THE COURT: You have a mobile home that you
4 put on a vacant piece of land?
5 THE WITNESS: Yeah.
6 THE COURT: And under what terms do you
7 rent, month to month or do you have a lease?
8 THE WITNESS: I have, I guess, it's a year
9 lease, but I rent month for month. I pay every month, but
10 I think the lease is only good for a year at a time. I'm
11 not sure.
12 THE COURT: Okay. Good enough. You may
13 step down. I got what I needed to know. You move for the
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19 THE COURT: The two Additional Defendant
20 Exhibits are admitted. Now, do you have a motion?
21 MS. GREASON: Yes, Your Honor. I would like
22 to make a motion that this case be dismissed against my
23 clients. They are tenants. They don't own the land. They
24 are using the access that's provided to them by the
25 landlord. If the landlord loses that access, it's the
admission of your exhibits?
MS. GREASON: Yes, Your Honor.
THE COURT: Any objection?
MR. RISCH: No, Your Honor.
MR. STINE: No.
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6.
In the course of delending said Complaint. it was discovered that in 1991
Delendants Weller. by and through their counsel. Timothy Sponscller. Esquire.
recorded a unilateral Deed of Easement purporting to eliminate and replace the
original drainage easement with a smaller easement.
7. Said recording was prepared exclusively by Attorney Sponseller and recorded by
Defendants Wellcr under thc direction of Attorney Sponseller.
8. Said recording was relied upon in drafting and rccording the original and
amended subdivision plans,
9. Defendants Weller constructed a road through what Plaintiff considered to be the
location of his original drainage easement.
10. Defendants Weller believe that Timothy Sponseller, Esquire was negligent in the
drafting and preparation of the unilateral Deed of Easement and in allowing the
same to be recorded,
II. Defendants Weller seek to join Timothy Sponseller, Esquire as a party to this
action.
12. Plaintiff has been informed of the intention of Defendants Weller to join Timothy
Sponseller, Esquire, and Plaintiff has no objection.
13. Likewise, Defendants Scott A. Calaman and Melanic Calaman have been
informed of the intention of Defendants Weller to join Timothy Sponseller,
Esquire, and Defendants Calaman have no objection.
14., Efforts to settle this litigation among the parties, including Timothy Sponseller,
Esquire, were pursued vigorously butunfortllnately have failed,
15. Although more than sixty (60) days have lapsed since the Complaint was served,
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DA VID A. THOMPSON,
PI;lintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - EQUITY
MARTIN L. WELLER and DIANA M.
WELLER, his wife. SCOTT A. CALAMAN:
and MELANIE CALAMAN, his wife,
Defendants NO.
.cOMPLAINT
AND NOW, comes the Plaintiff, David A. Thompson, by and through his attorneys, Martson,
Deardorff, Williams & Otto, and hereby avers as follows:
PARTIES
1. Plaintiff is David A. Thompson, an adult individual, residing at 631 North Middle
Road, Upper Mifflin Township, Cumberland County, Pennsylvania.
2. Defendants Martin L. Weller and Diana M. Weller, husband and wife, are adult
individuals residing at 58 Feaster Road, Chambersburg, Franklin County, Pennsylvania.
3. Defendants Scott A. Calaman and Melanie Calaman, his wife, are adult individuals
residing at 6 Mountain View Lane, Upper Mifflin Township, Cumberland County, Pennsylvania.
4. Plaintiff is the owner of several tracts of real property located in Upper Mifflin
Township, Cumberland County, Pennsylvania, more fully described in a deed dated October 21, 1981
and recorded at Cumberland County Deed BOok 38 "R", Page 1034. A copy of said deed is attached
hereto as "Exhibit A."
5. Defendants Martin L. Weller and Diana M. Weller (the "Wellers"), husband and wife,
are the owners of tracts of real property located in Upper Mifflin Township, Cumberland County,
Permsylvania, more fully described in a deed dated December 28, 1990 and recorded at Cumberland
County Deed Book 34 "Y", Page 45. A copy of said deed is attached hereto as "Exhibit B."
6. Defendants Scott A. Ca1aman and Melanie Calaman, husband and wife, occupy a
parcel of property owned by Defendants Martin L. Weller and Diana M. Weller in Upper Mifflin
..
Township. Cumberland County, Pennsylvania. known as Lot Number 14 of a subdivision of Martin
L. Weller.
BACKGROUND
7. In an agreement dated July 30, 1977, Frank R. Butler (predecessor in title to
Defendants Martin L. Weller and Diana M. Weller, his wife) granted to Harold L. Ickes and Barbara
A. Ickes, his wife (predecessors in title to Plaintiff David A. Thompson), and their heirs and assigns,
a "right of way and easement" over a portion of the Butler Tract for the purposes of constructing,
maintaining, and replacing "a drainage system" thus benefitting the Ickes tract (the "1977
Agreement").
8. Said right of way and easement agreement was recorded at Cumberland County
Miscellaneous Book 229, Page 969. A copy of said agreement is attached as "Exhibit c."
9. Said right of way and easement agreement described the boundaries of the drainage
easement as follows:
Said drainage area commences at a point 700 feet southeast of the
graveyard and extending along the northern boundary of the said tract
of land some 350 feet and extending into the said tract of land /
approximately 700 feet as is more fully set forth on the sketch
attached to this Right of Way and Easement [Agreement] and
incorporated herein.
10. In reliance upon the 1977 Agreement, Harold L. Ickes and Barbara A. Ickes, his wife,
constructed a drainage pipe from his property across Middle Road and into the easement area for
purposes of draining run-off water.
11. On September 14, 1977, Harold L. Ickes and Barbara A. Ickes, his wife, conveyed
their tract of land to David A. Thompson and Sandra L. Thompson, his wife, title now being vested
in David A. Thompson, Plaintiff herein, by deed recorded at Cumberland County Deed Book 38 "R",
Page 1034.
12.
~'.
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In acquiring the tract of land from Harold L. Ickes and Barbara A. Ickes, David A.
Thompson also acquired the rights in the drainage easement area benefitting that tract of land as
described in the 1977 Agreement.
~
.
13. Plaintiff David A. Thompson has continually used the drainage easement area since
the installation of the drainage pipe and reserves the right to utilize the drainage area in the future for
purposes consistent with the easement.
14. On December 28, 1990, Frank R. Butler conveyed his tract of land to Defendants
, .
, ..>'::!t?fU Martin L. Weller and Diana M. Weller, hL~ wife, by deed recorded at Cumberland County Deed Book
I}." 'ii~
Ji' (, 34 "Y", Page 45.
, l5. Upon acquiring the Butler Tract, the Wellers began obtaining the approvals necessary
to subdivide the tract with the intention of conveying the subdivided parcels to th~d parties for the
construction and/or installation of single family homes or mobile homes.
16. In the course of obtaining subdivision approval, the Wellers recorded several
subdivision plans for the Butler Tract. Subdivision plans have been recorded at the following:
Cumberland County Plan Book 62, Page 4; Cumberland County Plan Book 63, Page 146;
Cumberland County Plan Book 67, Page 18; and Cumberland County Plan Book 74, Page ISO.
17. On the first subdivision plan dated May 1990 and recorded at Cumberland County
Plan Book 62, Page 4, the Wellers failed to acknowledge the existence of the drainage easement area
benefitting the tracts owned by Plaintiff David A. Thompson as described in the 1977 Agreement.
A copy of the subdivision plan is attached as "Exhibit D."
18. On October 29,1991, the Wellers recorded a Deed of Easement dated October 25,
1991, at Cumberland County Miscellaneous Book 406, Page 666 (the "1991 Agreement"). A copy
of the Deed of Easement is attached as "Exhibit E."
"
. I) '-. (- 19. . The 1991 Agreement was not executed by David A. Thompson nor was David A.
Thompson notified of its drafting or recordation.
/ .
20. The 1991 Agreement expressly attempts to unilaterally supersede the 1977 right of
way and easement agreement between Frank R. Butler and Harold L. Ickes and Barbara A. Ickes, his
wife, and replace the large drainage area as described in the 1977 Agreement with a narrow fifty foot
wide easement surrounding David A. Thompson's existing drainage pipe.
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21. Because David A. Thompson never agreed to the terms of the 1991 Agreement. this
Agreement is invalid and the rights of David A. Thompson in the drainage area as described in the
1977 Agreement remain unaltered and have not been superseded.
22. On February 3. 1992. November 5. 1993, and June 30. 1997. the WeUers recorded
additional subdivision plans for the Butler Tract at Cumberland County Plan Book 63, Page 146;
Cumberland County Plan Book 67. Page 18; and Cumberland County Plan Book 74, Page ISO,
locating the new fifty foot wide drainage easement per the 1991 Agreement on the plan and failing
to identify the large drainage area described in the 1977 Agreement. Copies of these subdivision
plans are attached as "Exhibit E"
23. The subdivision plans falsely and fraudulently state that the fifty foot wide drainage
easement was created through an agreement between David A. Thompson and Martin L. WeUer when
David A. Thompson never entered into such an agreement.
24. Plaintiff David A. Thompson believes, and therefore avers, that the Wellers
intentionaUy. fraudulently, and maliciously drafted, executed, and recorded the 1991 Agreement in
an attempt to deprive him of his rights in the drainage easement area and to unilaterally replace the
drainage easement area with a narrow drainage path.
25. Plaintiff David A. Thompson believes, and therefore avers, that the WeUers attempted
to deprive him of his rights in the drainage easement area in order to ease the subdivision approval
process and to improve the marketability of the lots to be created by the subdivision of their tract.
26. Plaintiff David A. Thompson believes, and therefore avers. that the Wellers
intentionally, fraudulently, and maliciously recorded the subdivision plans falsely stating that Plaintiff
David A. Thompson had agreed to the 1991 Agreement and failing to show the existing drainage
easement area as described in the 1977 Agreement in an attempt to deprive him of his rights in the
drainage easement area and to unilaterally replace the drainage easement area with a narrow drainage
path.
27. Plaintiff David A. Thompson has been speciaUy damaged by the false and misleading
statements in the recorded 1991 Agreement and the subdivision plans by being deprived of his.recorded property rights in the drainage easement area and by being subjected to a cloud on his title.
-'
28. In June 1998. tht: Wellcrs began constructing a road for ingress and cgrt:ss to Lots 12,
13. and 14 of the Weller subdivision frol11 Middle Road across and through the existing drainage
easement area as described in the 1977 Agreement. This road is known as "Mountain View Lane."
,.,
, ,/", . I "29. Mountain View Lane passes through the drainage easement area and over the existing
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drainage pipe installed by David A. Thompson pursuant to the 1977 Agreement.
30. The existence of Mountain View Lane or any other road or structure is inconsistent
with the purposes of the drainage easement and substantially impairs the present and future use of the
drainage easement area by Plaintiff David A. Thompson by depriving him or the ability to install.
maintain, or repair the existing drainage system or to install another drainage system.
31. On or about July II, 1998. the Wellers completed construction of Mountain .view
Lane across the drainage easement area and pipe for use by residents of Lots 12, 13, and 14 of the
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Weller subdivision. . .
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32. The Wellers intentionally and maliciously constructed Mountain View Lane over the
drainage easement area knowing that they were intentionally interfering with Plaintiff David A.
Thompson's reasonable use of the drainage easement area and drainage pipe.
33. The occupiers of Lot Number 14, the Calamans, have been intentionally using
Mountain View Lane to gain access to Middle Road knowing that they are interfering with Plaintiff
David A. Thompson's reasonable use of the drainage easement area and drainage pipe.
34. The use of Mountain View Lane substantially interferes with the use and enjoyment
of the drainage easement area by Plaintiff David A. Thompson and could potentially damage the
existing drainage pipe.
35. The substantial and unreasonable interference with the use and enjoyment of the
drainage easement area constitutes irreparable harm for which no adequate remedy at law exists.
COUNT I
ACTION TO DETERMINE V ALIniTY OF 1991 DEED OF EASEMENT
AND SUBDIVISION PLANS AND TO COMPEL CANCELLATION
OF RECORDED DOCUMENTS
(Against Martin L. Weller and Diana M. Weller, his wife)
36. The allegations contained in paragraphs I through 35 are incorporated herein as if fully
set forth.
37. The Deed of Easement dated October 25. 1991 and recorded at Cumberland County
Miscellaneous Book 406, Page 666 (attached hereto as. "Exhibit En), is invalid as a unilateral
agreement that attempts to fraudulently deprive Plaintiff David A. Thompson of his rights in the
drainage easement granted to his predecessors in title in an agreement dated July 30, 1977 and
recorded at Cumberland County Miscellaneous Book 229, Page 969.
38. Plaintiff David A. Thompson continues to enjoy the right to use a portion of the land
of Defendants Martin L. Weller and Diana M. Weller as a drainage area under the agreement dated
July 30, 1977 and recorded at Cumberland County Miscellaneous Book 229, Page 969.
39. The subdivision plans recorded at Cumberland County Plan Book 62, Page 4;
Cumberland County Plan Book 63, Page 146; Cumberland County Plan Book 67, Page 18; and
Cumberland County Plan Book 74, Page 150 (attached hereto as "Exhibits D and F'), are invalid as
incorrectly removing the drainage easement as described in the agreement dated July 30, 1977 and
recorded at Cumberland County Miscellaneous Book 229, Page 969, and replacing it with a fifty foot
wide right-of-way referencing to the invalid unilateral Deed of Easement dated Octo ber 25, 1991 and
recorded at Cumberland County Miscellaneous Book 406, Page 666.
40. The said subdivision plans are invalid because they falsely and fraudulently fail to show
the location of the existing drainage easement, show the location of an invalid drainage easement to
which the parties never properly agreed, and state that David A. Thompson agreed to the creation
of a fifty foot wide right-of-way when in fact he never agreed to the creation of this right-of-way or
to the elimination of the perpetual drainage easement created by the agreement dated July 30, 1977
and recorded at Cumberland County Miscellaneous Book 229, Page 969.
~
41. 'nlese invalid documents, all recorded in the Oftice of Recorder of Deeds in and for
Cumberland County, have placed a cloud on Plaintiffs title for which therc is no adequate remedy
at law.
WHEREFORE, Plaintiff David A. Thompson requests that this Court:
a. Declare the Deed of Easemcnt dated October 25, 1991 and recorded at Cumberland
County Miscellaneous Book 406, Page 666, invalid;
b. Declare the subdivision plans recorded at Cumberland County Plan Book 62. Page 4;
Cumberland County Plan Book 63, Page 146; Cumberland County Plan Book 67,
Page 18; and Cumberland County Plan Book 74, Page 150 invalid;
c. Order Defendants to file appropriate documents canceling and/or correcting said
invalid documents;
d. Award Plaintiff punitive damages, attorneys fees, and costs associated with bringing
this action, plus any other relief this Court deems appropriate.
COUNT II
ACTION TO ENJOIN INTERFERENCE WITH EASEMENT
(Against All Parties)
42. The allegations contained in paragraphs I through 41 are incorporated herein as iffully
set forth.
43. Plaintiff David A. Thompson, by virtue of his ownership of several tracts of land
described in a deed recorded at Cumberland County Deed Book 38 "R", Page 1034, holds an
easement and right-of-way over a portion of the land described in Cumberland County Deed Book
34 "Y", Page 45, now owned by Martin L. Weller and Diana M. Weller, his wife, to "construct,
maintain, and replace a drainage system."
44. Plaintiff David A. Thompson has gained his rights in the said right of way and drainage
easement through an agreement recorded at Cumberland County Miscellaneous Book 229, Page 969.
-,\'
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45. Because the easelm:nt area has been dedicated for use as a drainage area, the
construction of any road or structure in the drainage easement area would constitute a substantial and
unreasonable interference with Plaintiffs use of the easement area.
46. The existence and use by Defendants of the road now constructed over and through
'-~._--,' -
the drainage easement area, known as Mountain View" ~oad!_ constitutes a substantial and
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unreasonable interference with Plaintiffs current and future use of the easement area,
47. The existence and use of any road or structure in the drainage easement area would
substantially and unreasonably prevent the repair, maintenance, and future construction of drainage
system(s) as may be deemed necessary by Plaintiff or his successors in title.
48. The existence and use of Mountain View Road as it passes over the existing drainage
pipe constitutes a substantial and unreasonable interference with Plaintiffs repair, maintenance. and
use of the pipe for drainage purposes,
49. The Wellers intentionally and maliciously constructed Mountain View Lane over the
drainage easement area knowing that they were intentionally interfering with Plaintiff David A.
Thompson's reasonable use of the drainage easement area and drainage pipe.
50. The occupiers of Lot Number 14, the Calamans, have been intentionally using
Mountain View Lane to gain access to Middle Road knowing that they are interfering with Plaintiff ~
David A. Thompson's reasonable use of the drainage easement area and drainage pipe,
5!. The existence and use of Mountain View Road has caused and continues to cause
irreparable harm to Plaintiff David A. Thompson and his property rights.
52. The occupiers of Lot Number 14 (the Calamans) and the Wellers can gain access to
their tracts on another road within the Weller subdivision without crossing over the existing drainage
pipe or through the drainage easement are'a.
53. Given that the property rights of David A. Thompson are being effected by the
existence and use of a structure in the drainage easement area, there is no adequate remedy at law.
WHEREFORE, Plaintiff David A. Thompson requests that this Court:
a. Perm:mentlyenjoin Defendants from using Mountain View E.Q!!f!. as it passes through
the drainage easement area as described in the agreement recorded at Cumberland
County Miscellaneous Book 229, Page 969;
b. Pennanently enjoin Defendants Martin L. Weller and Diana M. Weller, his wife, from
constructing any structure or road in the drainage easement area as described in the
agreement recorded at Cumberland County Miscellaneous Book 229, Page 969;
c. Order Defendants Martin L. Weller and Diana M. Weller, his wife, to remove all fill
and construction materials supporting Mountain View Road from the drainage
easement area and return the drainage easement area to its natural state;
d. A ward Plaintiff punitive damages, attorneys fees, and costs associated with bringing
this action, plus any other relief this Court deel11S appropriate.
COUNT ill
ACTION IN DISPARAGEMENT OF TITLE
(Against Martin L. Weller and Diana M. Weller, his wife)
54. The allegations contained in paragraphs 1 through 53 are incorporated herein as if fully
set forth.
55. On October 29, 1991, Defendants Martin L. Weller and Diana M. Weller, his wife,
intentionally, fraudulently, and maliciously drafted, executed, and recorded the 1991 Deed of
Easement at Cumberland County Miscellaneous Book 406, Page 666, in an attempt to deprive David
A. Thompson of his rights in the drainage easement area and to unilaterally replace the drainage
easement area with a narrow drainage path.
56. Defendants Martin L. Weller and Diana M. Weller, his wife, intentionally, fraudulently,
and maliciously recorded the subdivision plans falsely showing that the drainage easement as
described by the@Agreement had been replaced by a narrow drainage path and falsely stating that
Plaintiff David A. Thompson had agreed to 1991 Deed of Easement in an attempt to deprive him of
his rights in the drainage easement area and to unilaterally replace the drainage easement area with
a narrow drainage path.
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MADE THE ~ Is r. d.o.V 01 (J)r.HW In u.. v.a,
01 our Lord on. Ihou.land triM hundred tt&Mt - vr.t.... (jif fl )
BETWEEN DAVID A. THOMPSON and SANDRA L. TIIOl1PSON of Newville.
Cumberland County, Pennsylvania, hereinafter called the
''''-:: ~,:'''';t"'li \li'lo.:~l: ~;-t 'i,..t.';.;~~,~";f\P.'I"'" .
Grantor 9,
and
DAVID A. THOMPSON, of R. D. 2. Box l59A, Newville. PA,
Grant.. :
WITNESSETH, lIIot I.. oonsIderallon 01
----ONE and 00/100 ($l.OO)___________________________________________~UOr~
in IIond paid. Ih. receipt wh.reo/ls her.bJ/ OtlkMwltdg.d. u.. .ald gra~ s do h."bJ/ gnmt
and _'811 to IIle .old g......I.. ,
ALL THOSE CERTAIN tracts of land situated in Upper M:lfflin Township,
Cumberland County. Pennsylvania, more particularly bounded and des-
cribed as follows:
'....
TRACT NO. 1 _ BEGINNING at a point in Township Road 402, which point
is 270 feet northwest from, _6 common corneI:-. w.i th lnnds of Robert
G. Zimmerman,: et ux, 'and the;Scho"ol'~Dl$t:rict...of Big Spring; thence
by Tract No. 2 herein;: being" the western' half of Lot No. 2 on the
Plan of Lots of Robert G. Zimmerman, et ux, North 25 degrees 29
minutes 'east, 200 feet to an iron pin; thence by other lands of
Robert G. Zimmerman, et ux, North 67 degrees 30 minutes west, 100
feet to an iron pin at corner of Lot No.4 of said Plan. now of
the Grantor; thence by Lot No.4, South 25 degrees 29 minutes wesl;,
200 feet to a point in the center of the aforesaid Township Road;
thence by the center of said Road, South 67 degrees 30 minutes east,
100 feet t~ the ~lace of BEGINNING.
BEING Lot No.3 on the Plan of Lots of Rober.t G. Zimmerman, et ux,
as recorded in 1:he aftice of the Recorder of Deeds of Cumberland
Cour.ty in plan Book 13. page 32.' '.' '
UNDER IIND SUBJECT to restrictions' as set forth in the Deed of Robert
G. Zimmerman, et ux., to Harold: L'~,i.'.Ickes,"e~ ux, recorded in Deed
Book "RlI, Vol.,,~O ;,; page..83 3 '.": :'~~-'.~<,<:,i.'n.)/::'..
TRACT NO.2'''' BEGINNING'.at".~.,'point )irt'the center of Township Road
402, which point' is '220,:.'feet';-,nor.thwest~f.rom.'a common corner with
.lands of Robert':'(f;i'Zimrrieirmat),;jt:'u"i':ahd'hand~'of the Big Spring
School District; t.hence by lands of Robert G. Zimmerman, et UK,
North 25 degrees 29 minutes East, 200 feet to other lands of Robert
G. Zi.mmerman, et UXj thence by the same North 67 degrees '30 minutes
west, 50 feet to the corner of Lot. No.3 of the hereinafter-mentioned
Plan of LotSj thence along Lot No. ,3, South 25 degrees 29 minutes
west, 200 feet to a point, in the center of the aforesaid Township
Road j thence along the center'l,ine':of said Township Road 402, South
67 degrees 30 minutes eas~. SO ~~~~ to_the place of BEGINN~NG.
BEING the western fifty. (SO) 'feet ',Of Lot No.' 2 df" the Plan of Lots
of Robert G. Zimmermanl et ux, recorded in the Cumberland County
Recorder of Deed's Office in pl,a,n, Book 13 . Page 32.
UNDER AND SUBJECT to the restrictions as set forth in Deed Book
lieU, Vol. 24, page 277.
BEING the same premises which Harold L. Ickes and BarbaraA. Ickes,
his wife, by deed dated september 14, 1977 and recorded in the Office
.~'
of t.he Recorder of Deeds' 1n, ,for Cumuerlilnd County, pcnnsyl' ta
in Deed Book ."K", Volume 27, Page I,ZG grnnted and conveyed to'L. .Id
A. Thompson nnd Sandra L. Thompson. Grnntors he,rein.
TIlACT NO.3 _ B8GINlHNG nt n spike in the center of Townohip Road
402 at corner of other lands of Grantors; thence along soLd lands,
North 31 degrees 09 mInutes eost, ZOO feet to 11 stoke; thence over
lands of Robert G. Zimmcrmnn, at. ux, South C1t oC9recD 50 minut.es
cast, 200.32 feet: to a stake; t.hence over lands of Ilober!: a,
Zimmerman, et ux. South 31 'degrees 15 mlnutn!J west, 11.3 Ceet to
a stoke: t"hcnce over lands of Robert G. Zimmerman, 50u\:h 70 dcgrcCD
57 minute5 1.0 seconds west 77.82 feet: to II spi.ke in the cooter of
Township noad 1.02 j thence olong t.he center line of T~~n.ohiP' Rom~
1.02, North 61 degrees 50 minutes 150 feet to 0 spikc,..'thc pluce.. '.
of n8GINfIING." , ,', . .,,'-:, . ",
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DEIUG the eastern one-hlllf of Lot No.2, iltl of Lot :No'". l,~~'ns']alcJ.
oul; by Robert G. Zimmerman, ct: \.IX, on t.heir rliln of Lata recorded'
in the Or fice of the Recorder of Deeds in plan Dook 13;' Pag,c, .32., .
and a portion of other lands of Robert G. Zimmermlln.,et tlXT'lying
East at Lot No.1; the entire tract DS shown on survey of 'Thomas
A. Neff, R.S., doted r,larch 18. 1974.
CONSISTING OF .88& acres. more or 1eoo.
SUBJECT, however, to the restrictions that Tract No.3 herein may
not be oubdivided by the Grantees or their heiro or aosigns.
BEING the "same premises which Harold L. Ickes and Barbara A. Ickes,
his wIfe, by deed dated September 14. 1977 and recorded in the Office
of the Recorder of Deeds in and for Cumoerland County, pennsylvania
in Deed Book ilK", Volume 27, page 426 granted and conveyed l:o David
A. Thompson, nnd. Sa~dra L. Thompson, Grantors herein.
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VERIFICATION
I, David A. Thompson, certify that the facts alleged in the foregoing Complaint are true and
correct to the best of my knowledge, information, and belief. This statement is made subject to the
penalties of 18 Pa.C.S. ~ 4904 relating to unsworn falsification to authorities,
Date: 7 ~';;7 - 9 i
(IJ~() iJ. '1/~
David A. Thompson
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DAVID A. THOMPSON,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUM8ERLAND COUNTY / PENNSYLVANIA
NO.: 98-4410 EQUITY
JURY TRIAL DEMANDED
v.
MARTIN L. WELLER, and DIANA
WELLER, his wife, SCOTT A.
CALAMAN and MELANIE CALAMAN
his wife,
CIVIL ACTION - EQUITY
Defendants,
v.
TIMOTHY SPONSELLER,
Additional Defendant:
ADDITIONAL DEFENDANT. TIMOTHY SPONSELLER'S
ANSWER AND NEW MATTER TO JOINDER COMPLAINT OF DEFENDANTS
MARTIN L. WELLER AND DIANA M. WELLER
AND NOW, comes Additional Defendant, Timothy Sponseller, by
and through his attorneys, McKisso~k & Hoffman, P.C., and
respectfully provides and avers as follows:
1.
Denied.
After reasonable investigation, Additional
Defendant is without sufficient knowledge and/or information to
form a belief as . to the truth of the averments contained in
paragraph 1 of Defendants Joinder Complaint.
In light of
Additional Defendant's lack of information to provide an
intelligible response to the averment contained in paragraph 1 of
Defendants' Joinder Complaint, strict proof of the averment as
c~~ned therein, if relevant, is demanded at the time of trial in
this matter.
2. Denied. After reasonable investigation, Additional
Defendant is without sufficient knowledge and/or information to
form a belief as to the truth of the averments contained in
paragraph 2 of Defendants' Joinder Complaint. In light of
Additional Defendant's lack of information to provide an
intelligible response to the averment contained in paragraph 1 of
Defendants' Joinder Complaint, strict proof of the averment as
contained therein, if relevant, is demanded at the time of trial in
this matter.
3. Denied. After reasonable investigation, Additional
Defendant is without sufficient knowledge and/or information to
form a belief as to the truth of the averments contained in
paragraph 3 of Defendants' Joinder Complaint. In light of
Additional Defendant's lack of information to provide an
intelligible response to the averment contained in paragraph 1 of
Defendants' Joinder Complaint, strict proof of the averment as
contained therein, if relevant is demanded at the time of trial in
this matter.
4. Denied. After reasonable investigation, Additional
Defendant is without sufficient knowledge and/or information to
form a belief as to the truth of the averments contained in
paragraph.4 of Defendants' Joinder Complaint. In light of
Additional Defendant's lack of information to provide an
intelligible response to the averment contained in paragraph 1 of
2
Defendants' Joinder Complaint, strict proof of the averment as
contained therein, if relevant is demanded at the time of trial in
this matter. By way of further response, the document attached as
Exhibit "A" to Defendants / Joinder Complaint indicates Plaintiff is
the owner of the identified tracts of land to which Additional
Defendant does not have any instant basis to challenge or question
Plaintiff's ownership of such land.
5. Denied. After reasonable investigation, Additional
Defendant is without sufficient knowledge and/or information to
form a belief as to the truth of the averments contained in
paragraph 5 of Defendants' Joinder Complaint. In light of
Additional Defendant's lack of information to provide an
intelligible response to the averment contained in paragraph 5 of
Defendants' Joinder Complaint, strict proof of the averment as
contained therein, if relevant, is demanded at the time of trial in
this matter. By way of further response, the document attached as
Exhibit "B" to Defendants Joinder Complaint indicates Defendants
Martin L. Weller and Diane M. Weller are the owners of the
identified tracks to which Additional Defendant does not have any
basis to challenge.
6. Denied. After reasonable investigation, Additional
Defendant is without sufficient knowledge and/or information to
form a belief as to the truth of the averments contained in
paragraph 6 of Defendants' Joinder Complaint. In light of
3
Additional Defendant's lack of information to provide an
intelligible response to the averment contained in paragraph 6 of
Defendants' Joinder Complaint, strict proof of the averment as
contained therein, if relevant is demanded at the time of trial in
this matter.
7. Admitted.
8. Denied. Addi tional Defendant is not a party to the
lawsuit referenced in paragraph 8 of Defendants' Joinder Complaint
and as such has no basis to admit or deny the averments in
paragraph 8 of Defendants' Joinder Complaint. By way of further
responses, the document attached to Defendants' Joinder Complaint
as Exhibit "C", purports to be the Complaint referenced in
paragraph 8 to which Additional Defendant has no personal
knowledge. The document speaks for itself.
9. Denied. Additional Defendant is not a party to the
lawsuit referenced in paragraph 9 of Defendants' Joinder Complaint
and as such has no basis to admit or deny the averments in
paragraph 9 of Defendants' Joinder Complaint. 8y way of further
responses, the document attached to Defendants' Joinder Complaint
as Exhibit "C", purports to be the Complaint referenced in
paragraph 9 to which Additional Defendant has no personal
knowledge. The document speaks for itself.
4
10. Denied. Additional Defendant is not a party to the
lawsuit referenced in paragraph 10 of Defendants' Joinder Complaint
and as such has no basis to admit or deny the averments in
paragraph 10 of Defendants' Joinder Complaint. 8y way of further
responses/ the document attached to Defendants' Joinder Complaint
as Exhibit "C", purports to be the Complaint referenced in
paragraph 10 to which Additional Defendant has no personal
knowledge. The document speaks for itself.
COUNT I
11. Admitted. By way of further response Additional
Defendant Timothy Sponseller, Esquire, did at all times relevant
hereto, properly advise Defendants Weller, regarding the dispute
over the easement and any and all actions of Defendants Weller
which are subject to instant litigation, are the direct result of
Defendants Wellers' own independent actions.
12. Admitted.
13. Denied. While it is admitted that Additional Defendant
Timothy Sponseller, Esquire / was aware that Defendant Weller
intended to record said easement, it is specifically denied that it
was known or should have been known to Additional Defendant that
the recording of such easement was to be in conjunction with
subdivision plans as set forth in Plaintiffs' Complaint.
5
Additional Defendant's lack of information to provide an
intelligible response to the averment contained in paragraph 20 of
Defendants' Joinder Complaint, strict proof of the averment as
contained therein, if relevant, is demanded at the time of trial in
this matter.
21. Admitted. By way of further response, Defendants
Wellers' actions in constructing the road through the original
easement location was done subsequent to Defendants Wellers'
receiving notification as to a discrepancy regarding the placement
of the easement. Defendants Weller was advised to discontinue any
construction activities until such time as the correct placement of
the easement could be determined. Despite being advised as to the
dispute, Defendants Weller continued in their activities in
constructing the road and disregarded legal advice and instruction
from Additional Defendant Timothy Sponseller, Esquire.
22. The averment contained in paragraph 22 of Defendants'
Joinder Complaint represents a conclusion of law to which no
response is required. If it is later judicially determined that a
response is so required, the averment contained in paragraph 22 of
Defendants' Joinder Complaint is specifically denied and strict
proof thereof is demanded at the time of trial.
7
23. The averment contained in paragraph 23 of Defendants'
Joinder Complaint represents a conclusion of law to which no
response is required. If it is later judicially determined that a
response is so required, the averment contained in paragraph 22 of
Defendants' Joinder Complaint is specifically denied and strict
proof thereof is demanded at the time of trial. By way of further
response on or about June 26, 1998, prior to the completion of the
road by Defendants Weller over the easement, Defendants Weller were
advised as to the dispute regarding the location of the easement
and instructed to discontinue any construction activities regarding
the road until such time as the dispute could be resolved.
Furthermore, Defendants WeIler were present at the construction
site on June 26, 1998, wherein it was agreed by all parties that no
further construction activities would commence until such time as
the dispute regarding the location of the easement was resolved.
However, despite this agreement by all parties involved as to
discontinuance of further construction activities in this matter,
. Defendants Weller disregarded this express agreement and the advice
from Additional Defendant and continued to construct the road.
24. The averment contained in paragraph 24 of Defendants'
Joinder Complaint represents a conclusion of law to which no
response is required. If it is later judicially determined that a
response is so required, the averment contained in paragraph 24 of
Defendants' Joinder Complaint is specifically denied and strict
proof thereof is demanded at the time of trial.
8
25. The averment contained in paragraph 25 of Defendants'
Joinder Complaint represents a conclusion of law to which no
response is required. If it is later judicially determined that a
response is so required, the averment contained in paragraph 25 of
Defendants' Joinder Complaint is specifically denied and strict
proof thereof is demanded at the time of trial.
26. The averment contained in paragraph 26 of Defendants'
Joinder Complaint represents a conclusion of law to which no
response is required. If it is later judicially determined that a
response is so required the averment contained in paragraph 26 of
Defendants' Joinder Complaint is specifically denied and strict
proof thereof is demanded at the time of trial. By way of further
response, on or about June 26, 1998, prior to the completion of the
construction of the road by Defendants Weller over the easement,
Defendants Weller were advised as to the dispute regarding the
location of easement and were instructed to discontinue any
construction activities regarding the construction of the road
until such time as the dispute could be resolved. Furthermore,
Defendants Weller were present at the construction site on June 26,
1998, wherein it was agreed by all parties that no further
construction activities would commence until such time as the
dispute regarding the location of the easement was resolved.
However, despite this agreement by all parties involved as to
9
discontinuance of further construction activities in this matter,
Defendants Weller disregarded this express agreement and the advice
from Additional Defendant and continued to construct the road.
WHEREFORE, Additional Defendant Timothy Sponseller, Esquire,
respectfully requests that this Honorable Court enter a judgment in
his favor and dismiss Defendants' Joinder Complaint and further
award Additional Defendant Timothy Sponseller, Esquire, all costs
and other relief as this Court may deem.
NEW MATTER
27. The averments and responses as set forth in the above
paragraphs 1-26, inclusive, are incorporated herein and made a part
hereof by reference.
28. Defendants Wellers' losses and/or liability to the
Plaintiff, if any remain valid and recoverable, were caused in
whole or in part by person or events outside the control of
Additional Defendant, Timothy Sponseller, to the extent that facts
developed during the course of discovery implicate same.
29. Defendants Wellers' losses and/or liability to the
Plaintiff, if any remain valid and recoverable, were caused in
whole or in part, by persons not a party to the within action, as
to the extent that facts developed during the course of discovery
implicate same.
10
30. Defendants Wellers' losses and/or liability to the
Plaintiff, if any remain valid and recoverable, were sustained as
a result of Defendants Wellers' negligence, as to the extent that
facts developed during the course of discovery implicate
same.
31. Defendants Wellers' losses and/or liability to the
Plaintiff, if any remain valid and recoverable, are barred under
the doctrine of estoppel, as to the extent that facts developed
during the course of discovery implicate same.
32. Defendants Wellers' losses and/or liability to the
Plaintiff, if any remain valid and recoverable, are barred by the
doctrine of impossibility of performance, as to the extent that
facts developed during the course of discovery implicate same.
33. Defendants Wellers' claims for relief and/or contribution
and indemnification as set forth in Defendants' Joinder Complaint,
are barred by the doctrine of justification, as to the extent that
facts developed during the course of discovery implicate same.
34. Defendants Wellers' claims for relief and/or contribution
and indemnification as set forth in Defendants' Joinder Complaint
are barred by the doctrine of waiver, as to the extent that facts
developed during the course of discovery implicate same.
11
DAVID A. THOMPSON,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNA
v.
: NO.: 98-4410 EQUITY
: JURY TRIAL DEMANDED
MARTIN L. WELLER, and DIANA
WELLER, his wife, SCOTT A.
CALAMAN and MELANIE CALAMAN : CIVIL ACTION - EQUITY
his wife,
Defendants,
v.
TIMOTHY SPONSELLER,
Additional Defendant
JOINT AND COLLECTIVE OBJECTION OF DEFENDANTS,
MARTIN AND DIANA WELLER, AND ADDITIONAL DEFENDANT,
TIMOTHY SPONSELLER TO PLAINTIFF'S PRAECIPE FOR
LISTlliG_CASKEOR.IRIAL
AND NOW, comes Defendants, Martin L. Weller and Diana Weller, by and through their
attorney, Karen Durkin, Esquire, and Additional Defendant, Timothy Sponseller, by and through
his attorney, Edwin A.D. Schwartz, Esquire, and respectfully files their joint and collective
Objection to the Plaintiffs Praecipe for Listing Case for Trial, and as such, provides as follows:
1. The underlying civil action, as captioned Da1Lid.A.Jhompsoll.Y~.MartinL....welIer
andJ)janaM._Weller,Jus_\1Life,_and..8cottA._Calaman.andMclanic_Calaman and docketed to the
above number, was commenced with the filing ofa Complaint in the Court of Common Pleas of
Cumberland County (hereinafter the "Complaint") on July 31,1998.
',: "I.,.'..:~.,.,.,.,'.'.."..,~:: .,.....,';:.,. .~~~'". ': :":":~_~' ,.::,,:~~',,"j""''',','-,,:' ,'f
MAnnoN DtMlOOIlFF WILLIAMS & OTTO
MJ?W&O
. '.
TEN I~ST HI(;1l Snu:n
CARL/RE. I'ENNsYl.VANIA 17013
DAVID A. THOMPSON,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
CIVIL ACTION - EQUITY
MARTIN L. WELLER, and DIANA
WELLER, his wife, SCOlT A.
CALAMAN and MELANIE CALAMAN,
his wife,
NO. lJX-44 10 EQUITY
Defendants
v
TIMOTHY SPONSELLER,
Additional Defendant
JURY TRIAL DEMANDED
PLAINTIFF'S RESPONSE TO DEFENDANTS' OBJECTIONS
TO PRAECIPE FOR PRE-TRIAL CONFERENCE
AND NOW, comes Plaintiff, David A. Thompson, by and through his attorneys, MARTSON
DEARDORFF WILLIAMS & OTTO, and respectfully files this response to Defendants' Collective
Objection to Plaintiffs Praecipe for Listing Case for Trial as follows:
1-8. Admitted.
9. Admitted that Plaintiff filed a Praecipe for Pre-Trial Conference pursuant to C.C.R.P.
1502-1, on May 10, 2000.
10. Admitted in part. It is admitted that the Praecipe indicates "This case is ready for
trial." By way of explanation, Plaintiff filed a Praecipe for Pre-Trial Conference in accordance with
C.C.R.P. 1502-1, which provides, in relevant part, "[a]t any time an equity case is at issue, any party
may file a praecipe with the Prothonotary for a pretrial conference."
Plaintiff's counsel proceeded with the intention of presenting this equity dispute before the
Court such that a reasonable trial date could be scheduled. This Court, by Order of May 16, 2000,
addressed the parties' concerns by designating June 22, 2000, as trial date.
11. Admitted in part. Plaintiff was informed byWellers' counsel on May9, 20nO, that she
desired to depose Mr. and Mrs. Weller, Plaintiff and his wife, Dorothy Thompson, and Additional
Defcndants Scott and Melanic Calaman, and was rcqucstcd to rcscrvc August 14,2000, as thc carlicst
opportunity for said depositions to occur, As of thc datc of this Iiling, thcrc arc no outstanding
discovcry rcquests and no Noticcs to Attend Deposition have been served, By way of furthcr
response, Defendants have had slightly Icss than two ycars to conduct any and all discovery deemed
necessary for trial.
12. Admitted, By way of further rcsponse, this lawsuit was commenced on July 31, 1998.
13. Plaintiff is unablc to detcrmine whether the assertions in this paragraph are true or
false. By way of response, this lawsuit was commenced on July 31, 199X,
14. Denied. By way of further response, Plaintiff and his wife will be available for
deposition at any time, upon reasonable notice, between the date of filing and June 21,2000. Plaintiff
filed a Praecipe for Pre-Trial Conference pursuant to C.C.R.P. 1502-1, with the intention of
expeditiously resolving the parties' dispute and establishing a reasonable time-period within which
to complete this matter. Moreover, the Praecipe for Pre-Trial Conference was filed at a time when
no discovery was outstanding.
WHEREFORE, Plaintiff, by and through his attorneys, MARTSON DEARDORFF
WILLIAMS & OTTO, respectfully requests this Court to deny Defendants' collective objections to
the Praecipe for Pre-Trial Conference and compel all parties to appear on June 22,2000, for an
adjudication in equity, as so Order by the Court on May 16,2000.
Respectfully submitted,
MARTSON DEARDORFF WILLIAMS & OlTO
By
Benjamin T. arneI', Esquire
!.D. No. 78100
Ten East High Street
Carlisle, PA 17013-3093
(717) 243-3341
Attorneys for Plaintiff
Date: May 19, 2000
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DA VID A, TIIOMPSON.
Plaintiff
IN TIlE COl JRT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
v,
MARTIN L. WELLER and DIANA M,
WELLER. his wife, SCOTT A, CALAMAN:
and MELANIE CALAMAN. his wilc,
Dclcndants : CIVIL ACTION .- EQUITY
NO,lJX..j.jIO EQUITY
1
v,
TIMOTHY SPONSELLER.
Additional Defcndant
: JURY TRIAL DEtvlANDED
NOTICIA
Le han dcmandado a lIslcd cnla corte, Si lIstcd qllierc dclcnderse dc cstas
dcmandas cxpucstas cnlas paginas sigllientes. ustcd tiene vientc (20) dias dc plazo al
partir dc la fecha de la demanda y la notilicllcion. Usted dcbc prescnlHr lIna aparicncia
cscrita 0 en pcrsona 0 pOI' abogado y archivar en la corte cn f'onna cscrita SlIS dcfcnsas 0
SllS objecioncs a IllS dcmandas cn contra de su pcrsona, Sca avisaclo que si lIstcd no sc
dcficndc, la corte tomara mcdidas y puedc entrar una ordcn contra usted sin prcvio aviso
o notilicacion y pOI' cualquicr queja 0 alivio quc cs pcdido enla pcticion dc demanda,
Ustcd pllcdc pcrder dincro 0 SllS propicdadcs 0 otros dcrcchos importantcs para ustcd,
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE, SI NO
TlENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAOAR TAL
SERVICIO, V A Y A EN PERSONA 0 LLAME POR TELEf'ONO A LA Of'ICINA
CUY A D1RECCION SE ENCUENTRA ESCRIT A ABA.lO PARA A VERIGUAR
DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL.
Court Administrator
4th f'loor, Cumbcrland County Courthousc
Carlisle, PA 17013
(717)240-G200
~
..
DA VfI) A, Tf 10rvIPSON.
Plaintiff
IN TilE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYLVANIA
v,
NO,lJX--I-IIO EQUITY
MARTIN I.. WELLER anu DIANA M,
WELLER. his wilc. SCOTT A, CALAMAN:
and MELANIE ('ALAMAN. his wilc.
Delcndunts CIVIL ACTION - EQUITY
v,
TIMOTIlY SPONSELLER.
Additional Defcndant
JURY TRIAL DEMANDED
,'OINDEI~ COMPLAINT OF DEFENDANTS
MARTIN L. WELLER AND DIANA M. WELLEI~
AND NOW. come the Defcndants. Marlin L. Wcllcr and Diana M, Wcller, his wifc, by and
through their attorneys. Jamcs. Smith. Durkin & Connelly. LLP. and submit as follows:
I, Plainti/1' is David A, Thompson. an adult individual, rcsiding at 631 North Middle
Road Upper Mifflin Township, Cumbcrland County. Pcnnsylvania,
2, Defendants Martin L. Wcller and Diana M, Wellcr, husband and wife, are adult
individuals residing at 58 Feaster Road, Chambcrsburg. Franklin County,
Pcnnsylvania,
3, Dcfendants Scott A. Calaman and Melanie Calaman, husband and wife, are adult
individuals rcsiding at 6 Mountain View lanc, Upper Mifflin Township, Cumberland
County, Pennsylvania,
4, I'lainlilTis the owner ofseverallracts of real propcrty located in Upper Mifflin
Township, Cumberland County, Pennsylvania, more fully described in a deed datcd
.
4'
.
.0(.
October 21, 1981 and recordcd at CumbcrlHnd County Dccd Book 38 "Ie, Page
1034, A copy of said decd is attached hcrcto as Exhioit "i\",
5, Dclcndants Murtin L. Wcllcr and Diuna ivl. Wcller (thc "Wcllcrs''J. husband and
wilc. arc thc owners of tracts of real properly lucalcd in Uppcr Mimin Township.
Cumoerlund County. Pennsylvania. more fully descriocd in a dccd datcd Dcccmbcr
28, 1990 und recordcd at Cumbcrland County Dccd Book 34 "Y", Pagc 45, A copy
of said decd is attached hercto as Exhibit "Il",
6, Defendunts Scolt A. Calaman and Mclanie Calaman. husband and wilc, occupy a
parcel ofpropcrty owned by Defcndants Marlin L, Wellcr and Diana M, Wcllcr in
Upper Mimin Township, Cumberland County, Pcnnsylvania. known as Lot Numbcr
14 ofasubdivision of Martin L. Wcllcr,
7, Upon information and belicf: Additionul Dclcndant Timothy Sponscller, Esquirc is
an adult individual residing at 6801 Findley Road. Merccrsburg. Pcnnsylvania,
8, The Defendants havc bcen sucd on thc causcs of action sct forth in Plaintiffs'
Complaint. a copy of which is altachcd as Exhibit "C" and incorporated herein,
9, Defendants have liIecl an Answer with Ncw maltcr. a copy of which is attached as
Exhibit"D" and incorporated herein,
1 0, Plaintiffs filcd a responsc to Defendants New Malter, a copy of which is altached as
Exhibit "E" and incorporatcd hcrein
COUNT I
II, In 1991 Timothy Sponscller, Esquirc was thc altomcy for Dcfcndants Weller and as
such had a duty to advise thcm properly.
0(
4.
.
12, Inlatc Scptcmber orcarly October. 1(9) Attorncy Sponseller prcparcd a Unilateral
Dccd or I~asement (hcreinaticr "cascmcnt") to e1iminatc mill rcplacc the original
drainage casemcnt with a smallcr easemcnt. a copy or which is ultachcd hereto as
Exhibit "F",
13, Additiomll Dclcndant Sponsellcr knew. or should havc known. that the Defcndants
intcndcd to record said eascmcnt in conjunction with subdivision plans scl forth in
Plaintilrs Complaint.
14, The cuscmcnt was preparcd solely by Attorney Sponscllcr,
15, Delcndants providcd a copy orthc eascment to Plaintiffbcfore it was exccutcd
sometimc betwccn Octobcr 18, 1991 and Octobcr 24. 1991.
16, Dclcndunts cxecutcd thc casement and had it notarizcdin Attorncy Sponscllcr's
oflicc on Octobcr 24, 1991.
17, Attorney Sponscller charged thc Dclcndants a rcc 01'$63,00 to preparc and notarizc
the eascmcnt. A copy of said invoicc is attachcd hercto as Exhibit "G",
18, Atier somc discussion, the cascmcnt was exccutcd, and Attorney Sponscllcr allowcd
thc Defcndants to rccord thc eascmcnt.
19, Thc casement was rccordcd at Book 406, pagc 666 on Octobcr 29,1991.
20, Said rccordcd eascmcnt was rclicd upon in drafting and recording the original
subdivision plans describcd in Plaintitrs Complaint.
21, Dclcndants Weller constructed a road through what PlaintilTs considcred to bc thc
location or thc original drainagc casement.
22, Defcndants Wellcr bclievc that Attorncy Sponscller was negligent in the drafting
and preparation of the easement and in allowing thc samc to be recorded,
<
...
23,
Any damages or losses suflcrcd by the I'laintifl;; arc due to the negligcncc of
Additional I lclcndant Timothy Sponsdlcr. Esquire in Iililing to cxcrcisc due care in
advising thc Dclcndants rcgarding thc cflcct and validity of the eascment and the
draliing ofthc cascmcnt. and altcrnativdy, in allowing said cascmcnl to bc rccordcd,
24, The allcgations ofnegligcncc inl'lainlifl"s Complaint are incorporatcd by rclcrence
without admitting any liability on thc part of Oelcndant Wdlcr,
25, Delcndants Wcller join Additional Delcndant Sponseller to prcscrvc their right of
indcmni lication and contribution,
26, (fliability is found on the part of Delcndanls Wellcr. such liability bcing spccilically
denied. thcn Additional Dclcndant Sponscller is soldy orjointly liable or liable ovcr
to Defcndants Wellcr 1(11' contribution. indemnilication. or both,
WHEREFORE. Delcndants Martin L. Wcllcr and Diana M, Wcllcr respectfully rcquest that
this Honorable Court enter judgmcnt in their favor, plus costs, In the alternative, it is respectfully
rcquested that Additional Defcndant Timothy Sponscller be found jointly or severally liablc or
liable over to Defendants Weller for contribution, indemnilication, 01' both, plus costs, and that
Dcfendants be awardcd thc costs of prcparing and recording a ncw easement, attorneys fees, plus
any other relief this Court deems appropriate,
if I 'J;!.'J,
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MA.DETIIE ;;{/51-, d.D.1I0' (]Jr.Hw
0' ou' Lord 0tt4 IAo...IId...... I"",<i,.d .et1fM~.- ~ (jif~1 )
BETWEEN DAVID A. THOMPSON and SANDRA L, TIlO~lPSON of Newville,
Cumberland County, Pennsylvania, hereinafter called the
in. tIu Uta,.
;~~ .'~': .
~C"f"lt!'# ~~';'J~"lt-:.~,..:i#~...tl-\.o:v,"""
Grantor B,
and
DAVID A, TIIOMPSON, of R. D, 2, Box 159A, Newville, PA,
Grante. :
WITNESSETH, lhat In IlDMiIUralion 0'
----ONE and DO/IDO ($1.00)------____________________________________ Dolla,.,
In Iu1nd paid, Ih. .....pl who,.o' /a hor.bv acknowltdgod, tho oaid orantor S do h....bv orant
and convoy to I"" .aid ONnlOll ,
ALL THOSE CERTAIN tracts of land situated in Upper ~1ifflin Township,
Cumberland County, Pennsylvania, more particularly bounded and des-
cribed as follows:
TRACT NO. 1 - BEGINNING at a point in Township Road 402, which point
Is 270 feet northwest from a common corner with lands of Robert
G. Zimmerman" et. ux, and-the::s~~o'ortDi~~r.fct.:.:'Of Big Spring: thence
by Tract No.2 herein,'being'the western' half of Lot No.2 on the
Plan of Locs of Robert G. Zimmerman, et ux, North 25 degrees 29
minutes "east, 200 feet to an iron pin; thence by other lands of
Robert G. Zimmerman, et UX, North 67 degrees 30 minutes west, 100
feet to an iron pin at corner of Lot No. 4 of said Plan, now of
the Grantor; thence by Lot NO.4, South 25 degrees 29 minutes west,
200 feet to a point in the center of the aforesaid Township Road:
thence by the center of said Road, South. 67 degrees 30 minutes east,
100 feet to the place of BEGINNING.
BEING Lot NO.3 on the Plan of 'Lots of- Robert G. Zimmerman, et: ux,
as recorded in the Office of the Recorder of Deeds of Cumberland
County in Plan Book 13, page 32. ..., '
UNDER AND SUBJECT to restrictions '.a,,' set forth in the Deed of Robert
G. Zimmerman, et ux, to Harold.\t..'~:!,:I.cke?,J "et UX, recorded in Deed
Book "RIl f Vol. '20 j :~.page 833 ...if:u::ri:;-.~~:.~.':r:;~'/:" : ..
, '''., '." ~".( .._ " t;. ' " "'<"'j~'{!: .':' .
TRACT. NO. 2. ~ 'BEGINNING."at a;point;;;in ...the center of Township Road
402, Whichpoiri~!}s :'220:'~f.eet,~noz:l,#_bwe,s,t,~,fr.o!T\iJa: common . corner with
.lands of Robert".(j!'''Zimniermao...._et'u'O:I~''ahd''land'Of the Big Spring
School Dis.t.rictj t.hence by lands of Robert G. Zimmerman, et ux,
North 25 degrees 29 minutes Eilst, 200 feet to other lands of Robert
G. Zlmmerman. et UXj thence by the same North 67 degrees 30 minutes
west. 50 feet to the corner of Lot No. 3 of the hereinafter-mentioned
Plan of Lots; thence along Lot Nq.', 3, South 25 degrees 29 minutes
west, 200 feet to a point,~ in' 't:he center of the aforesaid TownShip
Road; thence along the center 'line'"f. said Township Road 402, South
67 degrees 30 ~inutes east, ?9.fe~t. to the place of BEGINNING.
" . ," .1<"...-'.,.....,
BEING the western fi'fty (50). fe~t"ofL~t N~. 2 Of"'th~ Plan 'of Lots
of Robert G,'Zimmerman, et ux, recorded in the Cumberland County
Recorder of Deed's Office in Plan.,Book:13, Page 32.
, . ""',"" .
UNDER AND SUBJECT to the restrictions asset forth in Deed Book
"e". Vol. 24, ,page 277. .... :"
BEING the same premises which Harold L. Ickes and Barbara A. ICkes,
his wife, by deed dated September 14, 1977 and recorded in the Office
.
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minute. 4S second. Weat 100.33 feet to an exi.ting railroad
spike; thence South 26 degrees 39 minute! 9 second. Welt
280.87 feet to an oxisting railroad spika; thence South 26
degrees 25 minutes 46 seconds West 1046.90 feet to a post;
thence North 54 degrees 53 minutes 29 seconds \Jest 610.05
feet to a pas t stub; thence North 22 degrees 42 minutes 53
se,onds East 330.63 feet to a post; thence North 50 degrees
55 minutes 2S seconds West 2122.28 feet to a set iron pin;
thence North 25 degrees 4 minutes 20 seconds East 1175.25
feet to a set railroad spike, the placo of bcginning, con~
taining 89.75588 Bcres, more or less, accordin~ to a I.ond
Subdivision Indcx ,Map prepared by Byers and Runyon Surveying
for Martin L. Weller on or about August 7, 1990.
BEING part of the same real estate which Harold S. Irwin and
Doroth,y 8. Irwin, his wife, by their deed dated Hay 17, 1945
and recorded in Cumberland County Deed Book Z, Volume 12, Page.
285 conveyed to Frank R. Butler and Ellen R. Butler, his wife.
The said Ellen R. Butler died intestate on July IS, 1968 nnd
full title to this real estate then becnme vested in Frank R.
Butler, Grantor herein.
And the said Grantor does hereby covenant and agree that he
will warrant specially the herein above desc.ribed premises.
IN WITNESS WHEREOF, said Grantor has hereunto set his hand
n~eal the ~~ and year first above writtr~. 11 '
(, G../J /f: -, 1J2. rl3. iD<oo'<:V'un;:L'."f-
~,Sfty ~u..J p.., 'fA,1~/?/3Jt", (SEAL)
. l.tness orlsE. Butler as Attorney~
in~Fact for Frank R. Butler
STATE OF PENNSYLVANIA
ss
COUNTY OF CUMBERLAND
On this. the .;<8'/;!1 day of DE:"U,-"'/?€{(' ,1990. before me
8 Notary Public inaii"Crfor said Stete end"'tounty, the under.. !
signed officer, personally appeared Doris E. Butler as Attorney.. I
in..Fact for Frank R. Butler, known to me (or satisfactorily i
proven) to be the person ""hose name is subscribed to the ""ithin I
instrument, and acknowledged that he executed the same for the
purposes therein contained. r-.. \.' .
<1~~:~~_N.~SS WHEREOF, 1 hereunto set '\l')han~~ ffficiaL seaL. !
. '!'.....:.....:,,;'.'.,>, (---, ", L t1 I I
i1....:,..:'. "',",C,\ otary Pu ,-
~r~!~,;i~lij .. f< .. ~:~~@i!'~:,j
DAVID A. THOMPSON,
Plaintiff
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION. EQUITY
MARTIN L, WELLER and DIANA M.
WELLER, his wife, SCOIT A. CALAMAN :
and MELANIE CALAMAN, his wife,
Defendants NO,
COMPLAlNT
AND NOW, comes the Plaintiff, David A. Thompson, by and through his attorneys, Martson,
Deardorff, Williams & Otto, and hereby avers as follows:
PARTIES
I. Plaintiff is David A. Thompson, an adult individual, residing at 631 North Middle
Road, Upper Mifflin Township, Cumberland County, Pennsylvania.
2, Defendants Martin L. Weller and Diana M, WeJ1er, husband and wife, are adult
individuals residing at 58 Feaster Road, Chambersburg, Franklin County, Pennsylvania,
3, Defendants Scott A. Calarnan and Melanie CaJaman, his wife, are adult individuals
residing at 6 Mountain View Lane, Upper Mifflin Township, Cumberland County, Pennsylvania,
4, Plaintiff is the owner of several tracts of real property located in Upper Mifflin
Township, Cumberland County, Pennsylvania, more fuJ1y described in a deed dated October 2 I, 1981
and recorded at Cumberland County Deed Book 38 "R", Page I 034. A copy of said deed is attached
hereto as "Exhibit A. "
5. Defendants Martin L. WeJ1er and Diana M, Weller (the "Wellers"), husband and wife,
are the Owners of tracts of real property lOcated in Upper Mifflin Township, Cumberland County,
Pennsylvania, more fully described in a deed dated December 28, 1990 and recorded at Cumberland
County Deed Book 34 "Y", Page 45, A copy of said deed is attached hereto as "Exhibit B."
6, Defendants Scott A, Calaman and Melanie Calaman, husband and wife, occupy a
parcel of property Owned by Defendants Martin L. WeJ1er and Diana M, Weller in Upper Mifflin
Township. Cumberland County. Pennsylvania. known as Lot Number 14 of a subdivision of Martin
L. Weller.
IlACKGROUND
7. In an agreement dated July 30. 1977, Frank R. Butler (predecessor in title to
Defendants Martin L. WeUer and Diana M, Wellcr, his wife) granted to Harold L. It:kcs and Barbara
A. Ickes, his wife (predecessors in title to Plaintiff David A. Thompson), and their heirs and assigns,
a "right of way and easement" over a portion of the Butler Tract for the purposes of constructing,
maintaining, and replacing "a drainage system". thus benefitting the Ickes tract (the "1977
Agreement"),
8, Said right of way and easement agreement was recorded at Cumberland County
Miscellaneous Book 229, Page 969, A copy of said agreement is attachcd as "Exhibit c."
9, Said right of way and easement agreement described the boundaries of the drainage
easement as follows:
Said drainage area commences at a point 700 feet southeast of the
graveyard and extending along the northern boundary of the said tract
of land some 350 feet and extending into the said tract of land ./
approximately 700 feet as is more fully set forth on the sketch
attached to this Right of Way and Easement [Agreement] and
incorporated herein.
10. In reliance upon the 1977 Agreement, Harold L. Ickes and Barbara A. Ickes, his wife,
constructed a drainage pipe from his property across Middle Road and into the easement area for
purposes of draining run-off water.
11. On September 14, 1977, Harold L. Ickes and Barbara A. Ickes, his wife, conveyed
their tract of land to David A, Thompson and Sandra L. Thompson, his wife, title now being vested
in David A. 1l1Ompson, Plaintiff herein, by deed recorded at Cumberland County Deed Book 38 "R",
Page 1034,
12. In acquiring the tract of land from Harold L. Ickes and Barbara A. Ickes, David A.
Thompson also acquired the rights in the drainage easement area benefitting that tract of land as
described in the 1977 Agreement.
/.....
,
I.
13, Plaintiff David A. Thompson has continually used the drainage easement area since
the installation of the drainage pipc and rcserves the right to utilize the drainage area in the future for
purposes consistent with the easement.
14, On December 28, 1990, Frank R. Butler conveyed his tract of land to Defendants
O.~"~.'ti!" L/ Martin L. Weller and Diana lvi, Weller, his wife, by deed recorded at Cumberland County Deed Book
,)" C 34 "Y", Page 45,
15, Upon acquiring the Butler Tract, the Wellers began obtaining the approvals necessary
. to subdivide the tract with the intention of conveying the subdivided parcels to third parties for the
construction and/or installation of single family homes or mobile homcs,
16, In the course of obtaining subdivision approval, the Wellers recorded several
subdivision plans for the Butler Tract. Subdivision plans have been recorded at the following:
Cumberland County Plan Book 62, Page 4; Cumberland County Plan Book 63, Page 146;
Cumberland County Plan Book 67, Page 18; and Cumberland County Plan Book 74, Page 150,
17. On the fIrst subdivision plan dated May 1990 and recorded at Cumberland County
Plan Book 62, Page 4, the Wellers failed to acknowledge the existence of the drainage easement area
benefitting the tracts owned by Plaintiff David A. Thompson as described in the 1977 Agreement.
A copy of the subdivision plan is attached as "Exhibit D."
18, On October 29, 1991, the Wellers recorded a Deed of Easement dated October 25,
1991, at Cumberland County Miscellaneous Book 406, Page 666 (the "1991 Agreement"), A copy
of the Deed of Easement is attached as "Exhibit E,"
(-- 19. The 1991 Agreement was not executed by David A, Thompson nor was David A,
. Thompson notified of its drafting or recordation,
--
20, The 1991 Agreement expressly attempts to unilaterally supersede the 1977 right of
way and easement agreement between Frank R. Butler and Harold L. Ickes and Barbara A. Ickes, his
wife, and replace the large drainage area as described in the 1977 Agreement with a narrow fifty foot
wide easement surrounding David A, Thompson's existing drainage pipe,
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21. Because David A. Thompson nevcr agrced to the terms of the 1991 Agreement, this
Agreement is invalid and the rights of David A, Thompson in the drainage area as described in the
1977 Agreement remain unaltered and have not been superseded,
22, On February 3, J 992, November 5, 1993, and June 30, 1997, the Wellers recorded
additional subdivision plans for the Butler Tract at Cumberland County Plan Book 63, Page 146;
Cumberland County Plan Book 67, Page 18; and Cumberland County Plan Book 74, Page 150,
locating the new fifty foot wide drainage easement per thc 1991 Agreement on the plan and failing
.
to identify the large drainage area described in the 1977 Agrecment. Copies of these subdivision
plans are attached as "Exhibit F."
23, The subdivision plans falsely and fraudulently state that the fIfty foot wide drainage
easement was created through an agreement between David A. Thompson and Martin L. Weller whcn
David A, Thompson never entered into such an agreement.
24. Plaintiff David A. Thompson believes, and therefore avers, that the Wellers
intentionally, fraudulently, and maliciously drafted, executed, and recorded the 1991 Agreement in
an attempt to deprive him of his rights in the drainage easement area and to unilaterally replace the
drainage easement area with a narrow drainage path,
25. Plaintiff David A. Thompson believes, and therefore avers, that the Wellers attempted
to deprive him of his rights in the drainage easement area in order to ease the subdivision approval
process and to improve the marketability of the lots to be created by the subdivision of their tract.
26, Plaintiff David A. Thompson believes, and therefore avers, that the Wellers
intentionally, fraudulently, and maliciously recorded the subdivision plans falsely stating that Plaintiff
David A, Thompson had agreed to the 1991 Agreement and failing to show the existing drainage
easement area as described in the 1977 Agreement in an attempt to deprive him of his rights in the
drainage easement area and to unilaterally replace the drainage easement area with a narrow drainage
path,
27. Plaintiff David A. Thompson has been specially damaged by the false and misleading
statements in the recorded 1991 Agreement and the subdivision plans by being deprived of his
recorded property rights in the drainage easement area and by being subjected to a cloud on his title,
t ~
<-f C
2X. In June I 99li, the Wellcrs began constructing a road for ingress and egress to Lots 12,
13, and 14 of the Wellcr subdivision from Middle Road across and through the existing drainage
casement area as described in the 1977 Agreement. This road is known as "Mountain View Lane."
29. Mountain View Lane passes through the drainage easement area and over the existing
drainage pipe installed by David A, Thompson pursuant to the 1977 Agreement.
30. The existence of Mountain View Lane or any other road or structure is inconsistent
with the purposes of the drainage easement and substantially impairs the present and future use of the
drainage easement area"by Plaintiff David A, Thompson by depriving him or the ability to install,
maintain, or repair the existing drainage system or to install another drainage system.
31. On or about July II, J 998, the Wellers completed construction of Mountain View
Lane across the drainage easement area and pipe for use by residents of Lots 12, q, and 14 of the
Weller subdivision,
32, The WeUers intentionally and maliciously constructed Mountain View Lane over the
drainage easement area knowing that they were intentionaUy interfering with Plaintiff David A.
Thompson's reasonable use of the drainage easement area and drainage pipe,
33. The occupiers of Lot Number 14, the CaIamans, have been intentionaUy using
Mountain View Lane to gain access to Middle Road knowing that they are interfering with Plaintiff
David A. Thompson's reasonable use of the drainage easement area and drainage pipe.
34, The use of Mountain View Lane substantially interferes with the use and enjoyment
of the drainage easement area by Plaintiff David A, Thompson and could potentially damage the
existing drainage pipe,
35, The substantial and unreasonable interference with the use and enjoyment of the
drainage easement area constitutes irreparable harm for which no adequate remedy at law exists,
COUNT I
ACTION TO DETERMINE VALIDITY OF 1991 DEED OF EASEMENT
AND SUBDIVISION PLANS AND TO COMPEL CANCELLATION
OF RECORDED DOCUMENTS
(Against Martin L. Weller and Diana M. Weller, his wife)
36. The allegations contained in paragraphs I through 35 are incorporated herein as if fully
set forth,
37. The Deed of Easement dated October 25,1991 and rccorded at Cumberland County
Miscellaneous Book 406, Page 666 (attached hereto as "Exhibit En), is invalid as a unilateral
agreement that attempts to fraudulently deprive Plaintiff David A, Thompson of his rights in the
drainage easement granted to his predecessors in title in an agreement dated July 30. 1977 and
recorded at Cumberland County Miscellaneous Book 229, Page 969,
38, Plaintiff David A. Thompson continues to enjoy the right to use a portion of the land
of Defendants Martin L. Weller and Diana M. Weller as a drainage area under the agreement dated
July 30, 1977 and recorded at Cumberland County Miscellaneous Book 229, Page 969,
39, The subdivision plans recorded at Cumberland County Plan Book 62, Page 4;
Cumberland County Plan Book 63, Page 146; Cumberland County Plan Book 67, Page 18; and
Cumberland County Plan Book 74, Page 150 (attached hereto as "Exhibits D and F"), are invalid as
incorrectly removing the drainage easement as described in the agreement dated July 30, 1977 and
recorded at Cumberland County Miscellaneous Book 229, Page 969, and replacing it with a fifty foot
wide right-of-way referencing to the invalid unilateral Deed of Easement dated October 25, ] 991 and
recorded at Cumberland County Miscellaneous Book 406, Page 666,
40, The said subdivision plans are invalid because they falsely and fraudulently fail to show
the location of the existing drainage easement, show the location of an invalid drainage easement io
which the parties never properly agreed, and state that David A. Thompson agreed to the creation
of a fifty foot wide right-of-way when in fact he never agreed to the creation of this right-of-way or
to the elimination of the pcrpetual drainage easement created by the agreement dated July 30, 1977
and recorded at Cumberland County Miscellaneous Book 229, Page 969,
41, 'I11ese invalid documents, all rccorded in the Oflice of Recordcr of Decds in and for
Cumberland County, have placed a cloud on Plaintiffs title for which therc is no adcquatc remedy
at law.
WHEREFORE, Plaintiff David A. Thompson requests that this Court:
a, Declare the Deed of Easemcnt dated Octobcr 25, 1991 and rccorded at Cumberland
County Misccllaneous Book 406, Page 666, invalid;
b, Dcclarc thc sulxlivision plans rccorded at Cumberland County Plan Book 62, Page 4;
.
Cumberland County Plan Book 63, Page 146; Cumberland County Plan Book 67,
Page 18; and Cumberland County Plan Book 74, Page 150 invalid;
c. Order Defendants to file appropriate documents canceling and/or correcting said
invalid documents;
d, Award Plaintiff punitive damages, attorneys fees, and costs associated with bringing
this action, plus any other relief this Court deems appropriate.
COUNT II
ACTION TO ENJOIN INTERFERENCE WITH EASEMENT
(Against All Parties)
42, The allegations contained in paragraphs 1 through 41 are incorporated herein as if fully
set forth,
43, Plaintiff David A. Thompson, by virtue of his ownership of several tracts of land
described in a deed recorded at Cumberland County Deed Book 38 "R", Page 1034, holds an
easement and right-of-way over a portion of the land described in Cumberland County Deed Book
34 "Y", Page 45, now owned by Martin L. Weller and Diana M, Weller, his wife, to "construct,
maintain, and replace a drainage system"
44, Plaintiff David A..Thompson has gained his rights in the said light of way and drainage
easement through an agreement recorded at Cumberland County Miscellaneous Book 229, Page 969,
1
45. Because the eascmcnt arca has been dedicatcd for use as a drainage area, the
construction of any road or structure in the drainage easemcnt arca would constitute a substantial and
unreasonable interference with Plaintiffs use of the easement arca.
46, The existence and usc by Dcfendants of thc road now constructed ovcr and through
, -_.~'+
the drainage easement area, known as Mountain View ~o-a~,. ~onstitutes a substantial and
.~-,~.
unreasonable interference with Plaintiffs current and future use of the easement area,
47, The existence and use of any road or structure in the drainage easement area would
.
substantiaJly and unreasonably prevent the repair, maintenance, and future construction of drainage
system(s) as may be deemed necessary by Plaintiff or his successors in title,
48, The existence and use of Mountain View Road as it passes over the existing drainage
pipe constitutes a substantial and unreasonable interference with Plaintiffs repair, maintenancc, and
use of the pipe for drainage purposes.
49, The Wellers intentionally and maliciously constructed Mountain View Lane over the
drainage easement area knowing that they were intentionally interfering with Plaintiff David A.
Thompson's reasonable use of the drainage easement area and drainage pipe,
50. The occupiers of Lot Number 14, the Calamans, have been intentionally using
Mountain View Lane to gain access to Middle Road knowing that they are interfering with Plaintiff ,"
David A. Thompson's reasonable use of the drainage easement area and drainage pipe,
51. The existence and use of Mountain View Road has caused and continues to cause
irreparable harm to Plaintiff David A, Thompson and his property rights,
52. The occupiers of Lot Number 14 (the Calamans) alld the Wellers call gain access to
their tracts on another road within the Weller subdivision without crossing over the existing drainage
pipe or through the drainage easement area,
53, Given that the property rights of David A. Thompson are being effected by the
existence alld use of a structure in the drainage easement area, there is no adequate remedy at law,
WHEREFORE, Plaintiff David A. Thompson requests that this Court:
a, Pennanently enjoin Defendants from using Mountain View Road. as it passes through
the drainage easement area as described in the agreement recorded at Cumberland
County Miscellaneous Book 229, Page 969;
b, Permanently enjoin Defendants Martin L. Weller and Diana M, Weller, his wife, from
constructing any structure or road in the drainage easement area as described in the
agreement recorded at Cumberland County Miscellaneous Book 229, Page 969;
c, Order Defendants Martin L. Weller and Diana M. Weller, his wife, to remove all fill
.
and construction materials supporting Mountain View Road from the drainage
easement area and return the drainage easement area to its natural state;
d, Award Plaintiff punitive damages, attorneys fees, and costs associated with bringing
this action, plus any other relief this Court deern~ appropriate,
COUNT ill
ACTION IN DISPARAGEMENT OF TITLE
(Against Martin L. Wellcr and Diana M. Weller, his wife)
54, The allegations contained in paragraphs 1 i through 53 are incorporated herein as if fully
set forth,
55, On October 29, 1991, Defendants Martin L. Weller and Diana M, Weller, his wife,
intentionally, fraudulently, and maliciously drafted, executed, and recorded the 1991 Deed of
Easement at Cumberland County Miscellaneous Book 406, Page 666, in an attempt to deprive David
A. Thompson of his rights in the drainage easement area and to unilaterally replace the drainage
easement area with a narrow drainage path,
56, Defendants Martin L. Weller and Diana M, Weller, his wife, intentionally, fraudulently,
and maliciously recorded the subdivision plans falsely showing that the drainage easement as
described by the @Agreement had been replaced by a narrow drainage path and falsely stating that ../
Plaintiff David A. Thompson had agreed to 1991 Deed of Easement in an attempt to deprive him of
his rights in the drainage easement area and to unilaterally replace the drainage easement area with
a narrow drainage path.
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IfADE THE .;;;? Is r. dav of (fJ( .h1U/ In the v,ar
of our Lard OM thousand 111M hund..d t'tJMtr- IInl- (jiff/ )
DAVID A THOMPSON and SANDRA L, TlI0l1PSON of tlewville,
~~~~~:~nd county; Pennsylvania, hereinafter called the
.~ '~: ";~'/J /;:'~:'l;},~" ,~':,~'.. ,~;t';:'\__7~ :~,
Granlor s,
and
DAVID A. TIIOHPSON, of R. D. 2, BOK l59A, Newville, PA,
WITNESSETH, that In oon.s/d.ration of
----ONE and 00/100 ($1. 00) ---------------------------------__________ DoUarB,
In hand paid, the ....Ipt whereof Ie her.bJ/ acknowledg.d, the ,aid grant<>r s do her'bJ/ grant
and con.8II1o the ,aid grant.. '.
ALL THOSE CERTAIN tracts of land situated in Upper ~tlff1in TownShip,
Cumberland County, Pennsylvania, more particularly bounded and des-
cribed as follows:
Grante, :
TRACT NO.1 - BEGINNING at a point in Township Road '02, Which point
Is 270 feet: northwest from, a ,common corner. with lands of Robert
G. Zimmerman, et ux I .'.and the' School'~Distrfct.~ of Big Spring; 'thence
by Tract No.2 herein;:' being .the western' half of Lot No.2 on I;he
Plan of Lots of Robert G. Zimmerman, et ux, North 25 degrees 29
minutes east, 200 feet to an iron pin; thence by other lands of
Robert G. Zimmerman, et ux, North 67 degrees 30 minutes west, 100
feel; to an iron pin at corner of Lot No. 4 of said Plan, now of
the Grantor; thence by Lot No.4, South 25 degrees 29 minutes wesl:,
200 feet to a point in the center of the aforesaid Township Road;
thence by the center of said Road, South 67 degrees 30 minutes east,
100 feel; 1:0 the place of BEGINNING..
BEING Lot No.3 on the Plan of 'Lots of Robert G. Zimmerman, et ux,
as recorded in 1:he Office of the Recorder of Deeds of Cumberland
County in Plan Book 13, page 32. '
UNDER AND SUBJECT to resl;rictions "as' set forl;h in I;he Deed of Roberl;
G. Zimmerman, et ux, to Harold.'I/~;','Ickes, et ux. recorded in Deed
Book "Ril, Vol.." 2.0;"pag~_,833,.",,: . " ',.,.
TRACT NO.2' - BEGINNING"at a. point ,in the center of Township Road
402, ,which point.. is' 220.':feet'...northwe,st:Pfr:om -'a common corner ...Ii th
lands of Robert'.G:""ZimmermaI).~ ...et.'ux,' and. "land 'of the Big Spring
School Dist.rict; t.hence by lands of Robert G. Zimmerman, et ux,
North 25 degrees 29 minutes East, 200 feet to other lands of Robert
G. Z:l.mmerman, et ux; thence by the same North 67 degrees 30 minutes
west, 50 feet to the corne~ of Lot No.3 of the hereinafter-mentioned
Plan of Lotsj thence along, Lot No..3, South 25 deg~ees 29 minutes
west, 200 feet to a point,in the center of the aforesaid Township
Road; thence along the center l.ine"of said Township Road 402, South
67 degrees 3D minul;es east, 50 feet to the place of BEGINNING.
, , , , .
BEING ,the western fifty. (50) feet 'Of Lol; No.. 2 of I;he Plan of Lots
of Robert G. Zimmerman, et ux,recorded in the Cumberland County
Recorder of Deed's Office in Plan'Book13, Page 32.
UNDER AND SUBJECT to the resl;rictions as set forl;h In Deed Book
"ClI, Vol. 24, page 277.
BEING the same premises which Harold L. Ickes and BarbaraA. Ickes,
his wife, by deed dal:ed Sepl;ember 14, 1977 and recorded in I;he Office
"-nV 0 ,,~ "\"'1 0" ~
m:.",I\.\,) ,...: .Ul
of the Recorder of Deeds in. ,for Cumberland County, pennsyl' Iii
in Deed' Book """ t Volume 27, Page 1.26 granted I)nd cOl','lVeycd to. t~. . lel
A. Thompson nnd Sandra L. Thompson, Grantors herein.
Tfl^CT NO.3 _ BgGlNNINa at a spike in the center of Township Hood
1.02 at corner of other lands of Gruntors; thence along snld lands,
North 31 degrees 09 minutes cast I 200 feet to il stake: thence over"
lands of Robert G. Zimmerman, at ux, South Gl dCHrees 50 minutcn
cnst, 200.32 feet to a stake: thence over lands of Ilobert a.
Zimmermon, et ux, Sout.h 31 'degrees 15 minut.es west, 1/.3 feet to
a stake: thence over IDons of Robert G. Zimmerman, South 70 dC[Jrccn
57 minutes 1.0 seconds wesl: 77.82 feet to n spike -to the ,conter of
Township noad 1.02: thence olong t.he centor line of To~nsh.lp noml
1.02, North 61 degrees 50 minutes 150 feet to a spike,',.'thc place.',
of J3EliINUINO. '::, . ;" ,'.,'.. ....' \
ornUG the castern onc-hill f of Lot No.2, all of Lot 'No'. 1,~ "'n!; .Jaid,
out by Robert G. Zimmerman, at UX, on their Plan of Lots recorded
in the office of the Recorder of Deeds in Plan Book .13,"PClfl,C' .32, .
and a portion of other lands of Robert G. Zimmerman,.ct ~x,'lyjni
East: of Lot No. 1 i the entire tract: as shown on survey of 'Thomas
^. Neff, R.S.. dated 14arch 18, 1974,
CONSISTING OF .886 acres, more or less.
SUBJECT, however, to the restrictions that Tract No.3 herein may
not be subdivided by the Grantees or their heirs or assigns.
BEING the same premises which Harold L. Ickes and Barbara A. tckes,
his wife, by deed dated September 14, 1977 and recorded in the Office
of the Recorder of Deeds in and for CUll10erland County, ?ennsyl vanla
1.n Deed Book "K", Volume 27, Page 426 granted and conveyed to David
A. Thompson. and,-S~ndra L. Thompson, Grantors herein.
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minutes 4S seconds West 100.33 teet to an exiltlng railroad
spike; thence South 26 degrees 39 minutes 9 seconds West
280.81 (ect to an existing railroad spike; thence South 26
degrees 2S minutes 46 seconds West 1046.90 feet to a post;
thence North 54 degrees 53 minutes 29 seconds West 610.05
feet to a post stubj thence North 22 degrees 42 minutes 53
seconds East 330.63 feet to 8 postj thence North 50 degrees
55 minutes 25 seconds West 2122.28 feet to a set iron pin;
thence North 25 degrees 4 minutes 20 seconds East 1175.25
feet to a set railroad spike, the place of beginning, Con-
taining 89.75588 acres, more or less, accord!n.'; to a Land
Subdivision Index .Map prepared by Byers and Runyon Surveying
for Martin L. Weller on or about August 7, 1990.
BEING part of the Slime real estate which Harold S. Yrwin and
Dorothy B. IrWin, his wifc, by their deed dated May 17, 1945
and recorded in Cumberland County Deed Book Z, Volume 12, Page.
285 conveyed to Frank R. Butler and Ellen R. Dutler, his wife.
The said Ellen R. Butler died intestate on July 15, 1968 and
full title to this real estate then became vested in Frank R.
Butler, Grantor herein.
And the said Grantor does hereby covenant and agree that he
will warr:ant specially the herein abovc described premises.
IN WITNESS WHEREOF, said Grantor has hereunto set his hand
a~eal the ~"1 and year first above written. /j_ '
(6../# ~{f' JJd..f' 13. ..!t~ '" "U" '<"r-
J ,q.i4 '.C?.fh~ ~, 'k''::I:1I? /Lttv (SEAL)
. l.tness orlS E. Butler as Attorney_
in-Fact for Frank R. Butler
STATE OF PENNSYLVANIA
COUNTY OF CUMBERLAND
. t!1 ""
On~this, the;<8' day of J.)~<'E.I"1'2fK'" ,1990, before me
a Notary PUblicinliiicrfor aaid State and County, the under- ,
signed Officer. personally appeared Doris E. Butler as Attorney_!
in-Fact for F'C'snk R. Butler, known to me (or satiSfactorily i
proven) to be the person whose name is subscribed to the wi thin I
instrument, and acknowledged that he executed the same for the
purposes therein contained. r-.. \:.,
,..,IN.~LT...NESS WHEREOF, I hereunto set f\lYI hBnd,an Jofficial seal.
'..:. J. ",., "'. \ ,-,,, tr /
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IUGH'!' OF \-lAY' AND' EASE1'lENT
FHANK R. DU'!'r.EI~, u wido~lCr of Upper Hifflin 'rownship,
Cumberland County, pennoylllunia,
to
HAROLD'L. ICKES and BARBARl\ A. ICKES, his wife, of the
same place,
, FOR AND IN CONSIDERl\TION OF. th~ sum of One Dollar', ($1.00)
, .
in hand paid, receipt of which is hereby acknowledged,
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Frank R. Butler, the Grantor hereby c;rrants to Harold L.lckes
and Barbara A. Ickes, his wife, the grantees, their heirs
and assigns, a right of way and easement to cons truct ,'maintain,'
,
!
and replace a drainage system, and grants to the grantees,'
an easement of ingress and egress for the construction, main-
tenanc'e and repair of the said drainage system, on that portion
,of the tract,of land conveyed by Harold S.Irwin and Dorothy D.
, '
Irwin, his wife, to Frank R. Butler and Ellen R. Butl~r, his
wife, on May 17, 1945 in Deed Book Z
Vol.12
page 285
,
The said Ellen R. Butler died ! ,II-) ,.\', I 'i r;f'
,Said'drainage area commences at a point 700 feet south,east. 'C
of the graveyard and extending along the northern boundary of the.
said tract of land some 350 feet and extending into the said tract
'ofland approximately '700 feet as is more fully set forth on
the sketch attached to this Right of Way and Easement and'
,
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;
incorporated herein.
It~ WITNESS WHEREOF, the parties .have hereunto .set their.
hands and seals this the :.k (I, day of July, .1977.
.,~
Witness:
,
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Fran R. Butler . '
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Harol'd L. Icke.s
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rHY 5, SPONSELLER
lrrOAHrY AT LAW
MDCillU:UAQ TRun nOG,
IIRSOUltG, PA 17201
717 ..s.,Ut
DEED OF EASEMENT
THIS DEED OF EASEMENT, made this ds& day of (Q106c~ ,
nineteen hundred ninety-one (1991), BY AND BETWEEN. MARTIN L. WELLER and
DIANA M. WELLER, his wife, of 59 Feaster Road, chambersburg,'Franklin County,
pennsylvania, hereinafter known 4S the GRANTORS, ~ DAVID A. THOMPSON and
DOROTHY J. THOMPSON, his wife, of R. D. #2, Box 159A, Newville, cumberland
county, pennsylvania, hereinafter known as the GRANTEES.
WIT N E SSE T H.
That in consideration of the sum of One ($1.00) Dollar, in hand paid by
the GRANTEES, the receipt whereof is hereby acknowledged, the GRANTORS do
hereby grant, bargain and convey unto the GRANTEES, their heirs, executors,
successors and assigns, the free and uninterrupted use of, liberty and
privilege over and passage in, along, under and over a certain parcel of real
estate owned by the GRANTORS situate in Upper Mifflin Township, Cumberland
county, pennsylvania, for the purpose of installing, maintaining and operating
a water drainage facility, together with the necessary apparatus and equipment
which may be used in connection therewith, as is more fully described on the
plat hereto attached and made a part hereof, marked "Exhibit "A".
It is intended that the permanent right-of-way shall be of the width
shown on the plat, and that during the construction of the said line, a
temporary construction right-of-way shall be such additional width as shall be
shown on said plat, if any.
TOGETHER with the right, from time to tiUle, to remove the said line and
equipment, with the right of free ingress, egress and regress for the
GRANTEES, their eervants, agents and employees, and such other persons as they
may authorize and direct in and along the same at all times here~fter, in
common with the GRANTORS, their heirs, executors, successors, assigns and
administrators, and tenants and occupiers of the said ground, for the purpose
of repairing, maintaining, renewing and cleaning ths said line, with the right
to dig and construct such ditches, trenches and openings with the said
right-of-way as may be necessary for the said purpose, and together with the
right of entry upon the GRANTORS' land for the purposes aforesaid.
RESERVING, NEVERTHELESS, unto the GRANTORS, their heirs, executors,
successors and assigns, the right to use the surface of the said real estate
for so long and insofar and to such extent as the use thereof will not in any
wise interfere with, damage or affect the operation or use of the water
drainage facility of the GRANTEES, and the GRANTORS do hereby covenant and
agree that they will not erect or permit the erection of any building or plant
any trees or shrubs on the right-of-way after the execution and delivery of
this Agreement whiCh will endanger or interfere with the operation of the said
water drainage facility of the GRANTEES.
BOOK 40G PAGE GGfi
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF FRANKLIN Il
On this ,;lS{.,1 day of Mlobc,-cJ ,1991, before me, a Notary
public in and for said State and County, psrsonally appsared Martin L. wellsr
and Diana M. Weller, his wife, known to me (or satisfactorily proven) to be
the persons whoss namss are subscribed to the within instrument, and
acknowledged that they executed the same for the purposes thersin contained.
WITNESS my hand and
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OAH,U AT LAW
!ASlURQ: TRun IlDG.
nIUAG. PA 17201
17 IU..."
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NOTt\RI;,L !.:!::.t\L
6f!IT'f H.IL::, N'')l;.JW r-U~L!C
'::HA.\m~Fl58tJRG ~cr;.), rnN:;~U:'J C.CL1NTY
l,tYCCI,~MIS.s:OH E~:Flnt:S ;;(;Pi~2n
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1:12m~f, ,r.jj~Y ',.Hilil \JS6...J:.i1J I ......,u...
Slale of Pennsylvania }
County of Cumberland SS
Re<:or,Jed in the ,)ffice for the recording of Deeds
?J.r,.lr'cllnd fOfJC~mberland Couniy Pa. .
'y.!.!S l3ookE-Vol. =-Page(1;;" '"
wltr1f!SS my hJnd "nd """I 01 'J/fice of
Carlis/e. FA ~~J-~Y of 1@..\..-
11E.,;order
1991. Mail to: Ma..... t/nJ L. !A/Q../I ~ r
Cha.....b eT'S blAre I (Ja.,/ /'7dl.a I
v/
BOOK 40G PAGE GfJ8
DA VID A. THOMPSON,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
v,
: NO, 98-4410 EQUITY
MARTIN L. WELLER and DIANA M, : CIVIL ACTION - EQUITY
WELLER, his wife, SCOTT A. CALAMAN:
and MELANIE CALAMAN, his wife, : JURY TRIAL DEMANDED "
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NOTICE TO PLEAD
To: David A. Thompson and his attorney,
Carl C, Risch, Esquire
YOU ARE HEREBY NOTIFlED to file a written response to the enclosed Answer with
New Matter within twenty (20) days from service hereof or a judgment may be cntercd against
you,
Respectfully submitted,
JAMES, SMITH, DURKIN & CONNELLY, LLP
/J '
Date,9f1.1N:-::}) /ffl
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..Bt::.~_-:><:::r2--. V, ...{ (J L-J
- AAR:EN DURJill.!, ESQUIRE
,
,./ Attorney I.D, #29563
P,O, Box 650
Hershey, P A 17033-0650
(717) 533-3280
Attorney for Defendants Weller
8, Denicd, The avcrments in paragraph eight (8) are conclusions orlaw to which no
rcsponsive plcading is deemed ncccssary and strict proorthcreofis demanded at
trial.
9. Denied, The avcrments in paragraph ninc (9) arc conclusions or law to which no
responsive pleading is dcemed nccessary and strict proofthcrcofis dcmandcd at
trial. In further response, said Right of Way and Eascment Agreement and
accompanying sketch speak for thcmselvcs,
10, Denied, After reasonable invcstigation, Dcfendants Weller are without
knowledge or information sufficicnt to form a belicf as to the truth of the
averments of paragraph ten (10) and strict proof of the same is demanded at trial.
II. Denicd, Thc averments in paragraph cleven (11) are conclusions of law to which
no responsive pleading is deemed necessary and strict proof thereof is demanded
at trial.
12, Denied, The averments in paragraph twelve (12) are conclusions ofIaw to which
no responsive pleading is deemed necessary and strict proof thereof is demanded
at trial.
.
Denied, After reasonable investigation, Defendants Weller are without
knowledge or information sufficient to form a belief as to the truth of the
averments of paragraph thirteen (13) and strict proof of the same is demanded at
trial.
14, Denied, The averments in paragraph fourteen (14) are conclusions oflaw to
13,
which no responsive pleading is deemed necessary and strict proof thereof is
demanded at trial.
24, Dcnicd, The avcnnents in paragraph twcnty-four (24) arc conclusions of law to
which no responsivc plcading is dccmcd neccssary and strict proof thercof is
dcmanded at trial.
25. Dcnied, The avenncnts in paragraph twenty-five (25) arc conclusions of law to
which no responsivc plcading is deemed neccssary and strict proof thereof is
demanded at trial.
26, Denied, The averments in paragraph twenty-six (26) are conclusions of law.to
which no responsive pleading is deemed necessary and strict proof thereof is
demanded at trial.
27, Denied, After reasonable investigation, Defendants Weller are without
knowledge or information sufticient to form a belief as to the truth of the
averments of paragraph twenty-seven (27) and strict proof of the same is
demanded at trial.
28, Denied. After reasonable investigation, Defendants Weller are without
knowledge or information sufficient to form a belief as to the truth of the
averments of paragraph twenty-eight (28) and strict proof of the same is
demanded at trial.
29, Denied, After reasonable investigation, Defendants Weller are without
knowledge or information sufficient to form a belief as to the truth of the
avennents of paragraph twenty-nine (29) and strict proof of the same is demanded
at trial.
30, Denied, After reasonable investigation, Defendants Weller are without
knowledge or information sufficient to form a belief as to the truth of the
.
43. Denicd, The avcrments in paragraph till,ty-thrce (.13) arc conclusions of law to
which no rcsponsive pleuding is dccmcd neccssary and strict proof thcreof'is
dcmanded at triul.
44. Denied, Thc uvcrments in paragraph lill'ly./iHlr (44) are conclusions orIaw to
which no responsive pleading is decmcd ncccssary and strict proof thcrcof is
dcmanded at trial.
45, Dcnied, After reasonable invcsligation, Dclcndants Wellcr arc without
knowlcdge or inJ(JI'Ination suflidcnllo form a belief as to the truth of the
avcrmcnts of paragrapb 1()l'ty-livc (45) and stricl proof of tbc samc is demanded at
trial.
46, Dcnied, Aftcr reasonablc invcstigation, Delcndants Wellcr are without
knowlcdgc or information suflidcnt to form a bclicf as to the truth of the
avermcnts of paragraph larty-six (46) and slrict proof of the same is demanded at
trial. It is furthcr denicd that lhc roadway is known as Mountain View Road, To
the contrary, said roadway is known as Mountain View Lane,
47, Denied, After reasonablc investigation, Defendants Weller are without
knowledgc or information surficicnt to form a belief as to the truth of the
avcrments of paragraph forty-sevcn (47) and strict proofofthe same is demanded
at trial.
48, Denied, Alier reasonable investigation, Defendants Weller are without
knowledge or information surficient to form a belief as to the truth of the
avermcnts of paragraph forty-eight (48) and strict proof of the same is demanded
at trial. It is further dcnied that thc roadway is kno\'m as Mountain View Road.
To the contrary, said roadway is known as Mountain Vicw Lane,
49. Dcnied, After reasonablc investigation, Defendants Wellcr are without
knowledge or information sufficicnt to form a bcliefas to thc tmth ofthc
averments of paragraph forty-nine (49) and strict proof of thc same is demanded
at trial.
50. Denied, The averments in paragraph fifty (50) are dirccted to parties other than
Defendants Weller,
51. Dcnied, After reasonable investigation, Defendants Weller are without
knowledge or information sufficient to form a belief as to the tmth of the
averments of paragraph fifty-one (51) and strict proof of the same is demanded at
trial. It is further denied that the roadway is known as Mountain View Road, To
the contrary, said roadway is known as Mountain View Lane,
52, Dcnied, Aftcr reasonable investigation, Defendants Weller are without
knowledge or information sufficient to form a belief as to the tmth of the
averments of paragraph fifty-two (52) and strict proof ofthc samc is demanded at
trial.
.
53, Denicd, The averments in paragraph fifty-three (53) are conclusions ofIaw to
which no responsive pleading is deemed necessary and strict proof thereof is
demanded at trial.
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VERIFICATION
Thc undersigned, KAREN DURKIN, ESQUl RE. of thc law linn of James, Smith, Durkin
& Connelly LLP, Hershey, Pennsylvania, hereby ccrtifies that the forcgoing Answer with Ncw
Mattcr has been prepared by me by knowledge and information acquired during thc course of my
representation of Defendants Martin L. Weller and Diana lVI, Weller; that I execute this vcrification
as the signatures of said Defendants cannot be obtaincd in the time permitted for thc filing ofthcse
Responses; and that false statements herein are made subject to thc pcnalties of 18 Pa,C,S.A. 94904
relating to UIlswom falsilication to authorities,
~I
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DATE
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- ;Y~REN DURKIN
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TIMOTHY S. SPONSELLER
ATT01UiEY 4T L\I'I
" CHAMnERSElJ~G TRUST BLDG,
CHAM8ERSlIURG, PA 17Z01
117 :U.1~U
,
DEED OF EASEMENT
THIS DEED OF EASEMENT, made this 0(9 day of (Qlobc~
nineteen hundred ninety-one (1991), BY AND BETWEEN: MARTIN L. WELLER and
DIANA M. WELLER, his wife, of 58 Feaster Road, Chambersburg,'Franklin county,
pennsylvania, hereinafter known as the GRANTORS, AND DAVID A. THOMPSON and
DOROTHY J. THOMPSON, his wife, of R. D. #2, BOX 159A, Newville, cumberland
county, pennsylvania, hereinafter known as the GRANTEES.
WIT N E SSE T H:
That in consideration of the sum of One ($1.00) Dollar, in hand paid by
the GRANTEES, the receipt whereof is hereby acknowledged, the GRANTORS do
hereby grant, bargain and convey unto the GRANTEES, their heirs, executors,
successors and assigns, the free and uninterrupted use of, liberty and
privilege over and passage in, along, under and over a certain parcel of real
estate owned by the GRANTORS situate in Upper Mifflin Township, cumberland
County, pennsylvania, for the purpose of installing, maintaining and operating
a water drainage facility, together with the necessary apparatus and equipment
which may be used in connection therewith, as is more fully described on the
plat hereto attached and made a part hereof, marked "Exhibit "A".
It is intended that the permanent right-of-way shall be of the width
shown on the plat, and that during the construction of the said line, a
temporary construction right-of-way shall be such additional width as shall be
shown on said plat, if any.
TOGETHER with the right, from time to time, to remove the said line and
equipment, with the right of free ingress, egress and regress for the
GRANTEES, their servants, agents and employees, and such other persons as they
may authorize and direct in and along the same at all times hereafter, in
common with the GRANTORS, their heirs, executors, successors, assigns and
administrators, and tenants and occupiers of the said ground, for the purpose
of repairing, maintaining, renewing and cleaning the said line, with the right
to dig and construct such ditches, trenches and openings with the said
right-of-way as may be necessary for the said purpose, and together with the
right of entry upon the GRANTORS' land for the purposes aforesaid.
RESERVING, NEVERTHELESS, unto the GRANTORS, their heirs, executors,
SUccessors and assigns, the right to use the surface of the said real estate
for so long and insofar and to such extent as the use thereof will not in any
wise interfere with, damage or affect the operation or use of the water
drainage facility of the GRANTEES, and the GRANTORS do hereby covenant and
agree that they will not erect or permit the erection of any building or plant
any trees or shrubs on the right-of-way after the execution and delivery of
this Agreement which will endanger or interfere with the operation of the said
water drainage facility of the GRANTEES.
~or)'
BSJK -:!: T' fAGE
r'(~C'
u...O
TIMOTHY S, SPONSE1.LER
ATTORNCY loT LAW
15 CHANIlERSnURa TRUST OLDC;:,
CHAIoIOERSlIUM, PA 17201
717 zn.J;,1g
-..-.-------....
TO HAVE AND TO HOLD, all and singular, the premises, rights and
privileges hereby granted or mentioned or intended to so be, with the
appurtenances, unto the GRANTEES, their heirs, executors, succeSDoro and
aooigno, to the only proper uoe and behoof of the GRANTEES, their heirs,
executors, succeosoro and assigno, forever, the GRANTORS hereby warranting the
title to the premises contained in the aforementioned right-of-way.
SUBJECT,
GRANTEES to
substantially
rights granted
NEVERTHELESS, to the express covenant
restore the surface of the area of
the same condition as it was prior to the
by this Deed of Easement.
and agreement by
the right-of-way
exercise of any of
the
to
the
THIS DEED OF ZASEMENT supersedes and replacos any previous written
easement or agreement between the parties and their predecessors in title,
regarding any type of water line or drainage easement, including, but not
limited to a certain Right of way and Easement betweem Frank R. Butler and
Harold L. Ickes and Barbara A. Ickes, his wife, dated July 30, 1977, and
recorded in cumberland county Miscellaneous Book 229, Page 969.
IN WITNESS WHEREOF, the GRANTORS have executed this Deed of Easement the
day and year first above written.
Sealed and deliverend in
~ pre~f
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Diana M. Weller
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