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Home My WebLink About99-03702 (2) i t) f e JOHN E. ANDERSON, JR., and CHERYL ANDERSON, Plaintiffs V. FROELICH AND COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-3702 EQUITY TERM IN RE: ADJUDICATION BEFORE OLER J. DECREE NISI AND NOW, this Zrj day of March, 2000, upon consideration of Plaintiffs' complaint, and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as follows: 1. Defendant is enjoined, within four months from the date of this decree, from continuing to use its property in a manner which results in the frequent intrusion of golf balls upon Plaintiffs' property from the sixth tee; 2. Plaintiffs are awarded $9,300.00 in damages from Defendant for repair of their home, plus costs of suit. 3. All other relief requested by Plaintiffs is denied. THIS DECREE NISI shall automatically become a Final Decree unless a party files a post-trial motion within the ten-day time period provided for in J Pennsylvania Rule of Civil Procedure 227. I. Ron Turo, Esq. 32 South Bedford Street Carlisle, PA 17013 Attorney for Plaintiffs Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant BY TH A C-7 E COURT, r? C/ Wesley Ole , ., J. A5 :rc JOHN E. ANDERSON, JR., and CHERYL ANDERSON, Plaintiffs V. FROELICH AND COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-3702 EQUITY TERM IN RE: ADJUDICATION BEFORE OLER. J. OPINION and DECREE NISI OLER, J., March 27, 2000. This equity case arises out of an alleged private nuisance in the form of the intrusion of golf balls from Defendant's property upon Plaintiffs' property. Relief requested is an injunction, compensation for physical damage to Plaintiffs' property, and attorney's fees. A nonjury trial was held on Wednesday, March 22, 2000. For the reasons stated in this opinion, injunctive and other relief will be granted to Plaintiff. FINDINGS OF FACT 1. The present action was commenced by the filing of a complaint on June 18, 1999. 2. Plaintiffs are John E. Anderson, Jr., and Cheryl Anderson, adult individuals residing at 13 Cardinal Drive, South Middleton Township, Cumberland County, Pennsylvania. 3. Defendant is Froelich and Company, Inc., a corporation having offices at I Mayapple Drive, South Middleton Township, Cumberland County, Pennsylvania. 4. Plaintiffs purchased the home in which they reside on January 30, 1988. 5. Defendant owns premises adjacent to Plaintiffs' property, upon which a golf course was built in 1990. 6. The said golf course is essentially a public course, operating year-round and presently serving over 40,000 golfers per year. 7. Plaintiffs' property lies along the western boundary of Defendant's property. The "tee boxes" for the sixth hole of Defendant's golf course lie 150 yards south of Plaintiffs' residence. A straightaway fairway extends northward past Plaintiff's property to the green. The distance from the tee to the green is 550 yards. 8. Many hundreds of errant golf balls, driven from the sixth tee, have landed on Plaintiffs' property, denting the aluminum siding on Plaintiffs' home and depriving Plaintiffs of the comfortable use of their yard. 9. The construction of Plaintiffs' home is such that all siding above a given area of damage must be removed to access the damaged area, and then replaced with new siding. 10. Restoration of Plaintiffs' home to its previous condition will cost $9,300.00. 2 11. Plaintiffs' attempts to have Defendant remedy the situation have been unsuccessful, although Defendant has undertaken in good faith some measures which have failed to protect Plaintiffs' property. 12. Defendant's owner is of the view that a properly installed fence in the area of the tee boxes for the sixth hole will rectify the problem. 13. Such a fence would require issuance of a special exception by the municipality, which the owner believes probably could be obtained. 14. The present use by Defendant of its property constitutes a private nuisance with respect to Plaintiffs' property. 15. Defendant's conduct in the present litigation has not been shown to have been obdurate, dilatory, arbitrary, vexatious or in bad faith. DISCUSSION Statement of Law Private nuisance. A private nuisance is described in the Restatement (Second) of Torts in the following terms: One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless 3 conduct, or for abnormally dangerous conditions or activities. i There is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.' In this regard, "[t]he law does not concern itself with trifles ...." Karpiak v. Russo, 450 Pa. Super. 471, 476, 676 A.2d 270, 272 (1996). "The standard for the determining of significant character is the standard of normal persons or property in the particular locality. If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable, then the invasion is significant." Id. at 476-477, 676 A.2d at 273. Remedies for private nuisance. Injunctive relief is an available remedy in appropriate circumstances where a private nuisance is shown to exist. See, e.g., Altman v. Ryan, 435 Pa. 401, 257 A.2d 583 (1969). Damages may also be awarded for past harm. Cf. Lafferty v. Montgomery, 48 Delaware Co. 65 (1960). Attorney's fees. Under Section 2503 of the Judicial Code, attorney's fees may be awarded to a litigant where the conduct of the other party has been 1 Restatement (Second) of Torts §822 (1979) 2 Restatement (Second) of Torts §821F (1979). 4 "dilatory, obdurate or vexatious" during the pendency of the matter3 or "arbitrary, vexatious or in bath faith" in commencing the matter or otherwise.4 Statute of limitations. A two-year statute of limitations applies to nuisance actions at law. Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §5524 (1999 Supp.). In the present case, the court is of the view that Defendant's use of its property in a manner which results in the frequent intrusion of golf balls, driven from a tee, upon Plaintiffs' property, significantly damaging their home and preventing their comfortable use of their yard, qualifies as a private nuisance as defined in the Second Restatement of Torts. This degree of intrusion, in the court's opinion, would be seriously annoying to a normal person in the community. CONCLUSIONS OF LAW 1. The court has jurisdiction over the parties and subject matter of this litigation. 2. Defendant's use of its property represents a private nuisance for which equitable and other relief is appropriate. 3 Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §2503(7). 4 Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §2503(9). 5 3. The private nuisance is a repetitive one and the cost of restoration of Plaintiffs' home due to the cumulative effects of the nuisance can not be assigned, in terms of causation, to a period beyond the applicable statute of limitations. DECREE NISI AND NOW, this 27's day of March, 2000, upon consideration of Plaintiffs' complaint, and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as follows: 1. Defendant is enjoined, within four months from the date of this decree, from continuing to use its property in a manner which results in the frequent intrusion of golf balls upon Plaintiffs' property from the sixth tee; 2. Plaintiffs are awarded $9,300.00 in damages from Defendant for repair of their home, and costs of suit. 3. All other relief requested by Plaintiffs is denied. THIS DECREE NISI shall automatically become a Final Decree unless a party files a post-trial motion within the ten-day time period provided for in Pennsylvania Rule of Civil Procedure 227.1. BY THE COURT, J. Wesley Oler. J. J. Wesley Oler, Jr., J. 6 Ron Turo, Esq. 32 South Bedford Street Carlisle, PA 17013 Attorney for Plaintiffs Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant :rc 7 ? ? ? JOHN E. ANDERSON, JR., and CHERYL ANDERSON, Plaintiffs V. FROELICH AND COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-3702 EQUITY TERM ORDER OF COURT AND NOW, this I I" day of June, 2001, upon consideration of the attached letter from Ron Turn, Esq., attorney for Plaintiffs, the hearing previously scheduled for June 13, 2001, is continued to Friday, August 31, 2001, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Ron Turo, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiffs Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant d. esley Oler, Jr., J. 0>> C `'}- C)\ IS' :rc ?1? Turo Law Offices RON TURD, Esquire ROBERT J. MULDERIG, Esquire GALEN R. WALTZ, Esquire JAMES M. ROBINSON, Esquire GERARD J. FOULKE, Esquire www.TuroLaw.com 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800) 562-9778 Fax (717) 245-2165 June 8, 2001 The Honorable J. Wesley Oler Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: Anderson v. Froelich No. 99-3702 Equity Term Dear Judge Oler: At the request of the golf course owner in the above captioned matter, I hereby request that you re-schedule the upcoming contempt hearing from June 13, 2001 until a date in less August or early September. The Defendant is prepared to install a high fence pursuant to the request I had previously made. For judicial economy I would prefer to wait until the fence is installed to see if it ultimately solves the intrusion problem at the heart of the lawsuit. I sincerely thank you in advance for your anticipated cooperation and I look forward to receiving a new hearing date consistent with your schedule. RT/rms cc: Marcus A. McKnight, III John & Cheryl Anderson OR \Uull! bLl\40..4 RRICF 7 DAYS OLD . .,. _ 7 YEARS 0 .w ?I 20 3d F a ''Al ? ? o y P 3 r 5 -2- ?'IOV d 7"?<rC r,(/?cs ?11 /-una? I C t ¢ ?a 7- Y vreCZ Tee net j a •c? '? cve f STS ' 1 6o7- •,I /341/S cnt h ci t/ t i c?- ozc? fc czar VoO JL- 3 taof L t Fmc- ? i S i Y Turo Law Offices RON TURD, Esquire ROBERT J. MULDERIG, Esquire LISA M GREASON, Esquire DAVID A GREENE, Esquire GALEN R. WALTZ, Esquire October 19, 2000 Marcus A. McKnight, III, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 RE: Anderson v. Froelich & Co., Inc. Dear Marcus: www.TuroLaw,com 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800)562.9778 Fax(717)245-2165 Pursuant to your request I enclose a list of the golf balls which have entered my client's yard since September 5, 2000 through October 16, 2000. My calculations are that since that date over sixty (60) golf balls have either hit my client's home or landed on their property. They also have advised me that your client attempted to screen only one set of tee boxes on the sixth hole. Apparently golfers are using either the farthest tee box, which has no netting, or the closer tee box which has no netting consequently the attempted solution is not working. Please immediately screen all tee boxes or, the alternative, move the only tee box on the hole to a point at or beyond my client's property. I look forward to hearing that the golf balls have stopped pursuant to Judge Oler's Order or to seeing you in court in November. sincerely Yours, RON TURD, ESQUIRE F2onTuro@TuroLaw.com RT/rms cc: John & Cheryl Anderson u-9-oo Sts rw. Vlbl.. Vkb11 I\ O?t. / 7 O Dc;l i CSJ{ „ i a- 7 O .? .° aa. D-3 /?Q0\) `/ T CC: 0 C C, AD ti - Turo Law Offices RON TURD, Esquire ROBERT J. MULDERIG, Esquire LISA M. GREASON, Esquire DAVID A. GREENE, Esquire GALEN R WALTZ, Esquire October 30, 2000 Marcus A. McKnight, III, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 RE: Anderson v. Froelich & Co., Inc. Dear Marcus: www.TuroLaw.com 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245.9688 (800) 562-9778 Fax (717) 245.2165 Please accept this letter as a follow up to my most recent letter updating you on the golf ball situation. Apparently your clients still have not put up netting at either of the other two tee boxes on the holes and my clients have noticed that all golfers are using the tee box where there is no netting. Consequently they have received thirteen golf balls during the week of October 20th through October 27th. As it appears they are not serious about solving this problem, I suspect we will have to have Judge Oler seek a more permanent solution. Sincerely Yours, RON TURD, ESQUIRE RonTuro@TuroLaw.com RT/rms cc: John & Cheryl Anderson PLAIINTIFF'S EXHIBIT S12s It. 9 -rx> nu xmu: ttw,N o. C?e? / 7 o 0 ct • a o /9 O r a(1 „ 7 3 a f a... a- a3 v PLAINTIFFS EXHIBIT /o II_9-au sou GOLF BALLS CLAIMED BY ANDERSONS ON THEIR PROPERTY FROM MAYAPPLE (Given pursuant to a telephone call from Ron Turn, Esq., on Wednesday, November 8, 2000) Number of Golf Balls Tuesday, October 17, 2000 .................................. .0- Wednesday, October 18, 2000 ............................. .0- Thursday, October 19, 2000 ................................. . 0- Friday, October 20, 2000 ..................................... ..1- Saturday, October 21, 2000 .................................. .2- Sunday, October 22, 2000 ................... .2- ................. Monday, October 23, 2000 .................................. . 0- Tuesday, October 24, 2000 .................................. .0- Wednesday, October 25, 2000 ............................. -1- Thursday, October 26, 2000 ................................. .4- Friday, October 27 2000 ...... . 3- , ............................... Total ...............13 EXHIBIT / I S/s DEFENDANT'S EXHIBIT ,I JOHN E. ANDERSON, JR. and CHERYL ANDERSON, Plaintiffs V. FROELICH AND COMPANY, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-3702 EQUITY TERM ORDER OF COURT f' AND NOW, this 26th day or. ,?epremicL , -?- C: consideration of Plaintiffs' Petition for Contempt, and pursuant to an agreement reached in open court between the Plaintiffs, John E. 'Andet5bn, Jr. and Cheryl Anderson, and Defendant, Froelich and C, ,C,ompanyj Inc., through their respective counsel, Ron Turo, Esquire and Marcus A. McKnight, III, Esquire, it is ordered and directed as follows: 1. Within two weeks of today's date Defendant will erect a 10-foot fence in the area of the tee in question in this case, with a view toward preventing the intrusion of golf balls upon Plaintiffs' property from the tee. 2. Plaintiffs will contact Defendant on each occasion that they notice a golf ball intruding upon their property from the golf course. 3• The hearing on Plaintiffs' Petition for Contempt is continued until Thursday, November 9, 2000, at 1:30 p.m., at which time all of the issues raised in Plaintiffs' Petition for Contempt will be considered. By the Court, L--1- J. lesley 0 , Jr., J ?I Ron Turo, Esquire For the Plaintiffs Marcus A. McKnight, III, Esquire For the Defendant it - ? ?-r?7?I JYiV LYA VLLiVOJ -^• Time 2:50 pm Transaction Listing Page 1 Selection Criteria Date range :All Client :ANDERSON, CHERY Custom Fields :All Transactions :Both Billed and Unbilled Types :All (tax not included, *=transaction has been billed) Client Date Description Amount Controller - TURO ANDERSON, CHERY 10/6/98 Payment - thank you 30. 00* 11/6/98 Payment - thank you 45. 00* 12/4/98 Payment - thank you 60. 00* 4/8/99 Payment - thank you 15. 00* 5/10/99 Payment - thank you 15. 00* 6/18/99 Payment - thank you 455. 00* 7/8/99 Payment - thank you 115. 00* 7/12/99 Refund from Sheriff 70. 90* 8/6/99 Payment - thank you 94. 10* 9/9/99 Payment - thank you 90. 00* 10/6/99 Payment - thank you 75. 00* 11/8/99 Payment - thank you 75. 00 TOTAL FOR TURO PAYMENTS 1140.00 GRAND TOTAL PAYMENTS 1140.00 12/13/99 Payment 01/05/00 Payment 02/04/00 Payment 75.00 60.00 60.00 1,335.00 r- -I PLAINTIFF'S EXHIBIT 'x/60 3 6"/ F-- - -1 PLAINTIFFS EXHIBIT :7udy RESTORATION, INC. 12 Stover Drive Carlisle, PA 17013 (717) 249-7052 Fax (717) 249-8370 January 18, 2000 Ms. Cheryl Anderson 13 Cardinal Drive Carlisle, PA 17013 SUBJECT: Siding Dear Ms. Anderson: We are pleased to provide you with a proposal on renovating your home as outlined below. The price structure and job scope is as per our interpretation of the request of the owner as outlined verbally and in document form. Nothing beyond what is specifically mentioned should be assumed inclusive in this bid. JOB SCOPE. ?Er1? Exterior: (rDRmr9Getj 0 1. Remove all aluminum siding, aluminum corners and aluminum J channel from South gable, rear left side of house, rear gable, and carport are "„? ?? ?;,,,M 2. Install ne??tyyyl?Nlble 4" siding, 94comers and V09J channel. 3. Caulk arach windows and doors with silicone caulking. 4. Remove and replace 8" fascia on South gable. 5. Install two (2) new 18"x 24" aluminum gable vents. 8. Remove all debris from site. Total Price: $ 5,500.00 Option #1: 1. Remove all aluminum siding, aluminum comers and aluminum J channel from porch area, rear right side of house, and North side of house. ,,gqi ? A - N„ n) AI „1K ; Na m 2. Install nrp dgyble 4" siding, 4inyl corners and uinyl J channel. 3. Caulk addu Ih ows, doors and both sides of chimney with silicon caulking. 4. Remove and rehang electrical wires as needed to install new siding. 5. Remove all debris from site. Total Option #1: $ 3,800.00 If asbestos, lead, or any environmentally hazardous material is found, the project will be stopped immediately until the material is tested and/or removed. Tuckey Restoration, Inc. assumes no responsibility, either physically or financially, for the testing or removal of any such hazardous material. In the event that said asbestos, lead, or other hazardous material is not removed within 30 days, Tuckey shall have no further obligation to perform its duties set forth in the Agreement and the Customer shall pay Tuckey for all services performed prior to such discovery. Tuckey Restoration, Inc. is not held liable for any items not brought to our attention and/or items not on Inventory form. Please take note to the special terms ACCEPTED BY: Customer's Name: Signature: Signature: Date: TUCKF,Y RESTORATION, INC. By: - i VU p?lyabi ,? - Jim Finkenbinder, Estimator - Tuckey Restoration, Inc. Is an Equal Opportunity Employer - EXHIBIT 1661 1 Restoration, Inc. Contract Tema and Condlikins The above job scope Is a reflection of the project within the following standards outlined but not limited to: 1. To the fullest extent permitted by law, the Customer shall Indemnify and hold harmless Tucksy Restoration, Inc.., and all of their agents and employees from and against all claims, damages, losses, and expenses, Including but not limped to attorney's bee arising out of or resulting from the performance of Tuckey s services under this contract provided that any such claim, damage, loss, or expense Is attributable to bodily Injury, sickness, disease, or death, or safety violations or violations of environmental rules or regulations, or to Injury to or destruction of tangible property (other than the work ftseip Including the loss of use resulting therefrom, to the extent caused In whole or In part by any negligent act, omisslon or error of Turkey, or any of Its agents or employees, or anyone for whose acts It may be liable, regardless of whether it Is in whole or In pan by any negligent act, omission or error of Turkey, or any of Its agents or employees, or anyone for whose ads it may be liable, regardless of whether it Is In whole or In pan by a party Indemnified hereunder. 2. Safety Is of the utmost priority, and It Is the polity of the company that each individual employed by It, subcontracted by It, or outside owner representation arriving at the project, follow all company standards and come under the control of our safety office. To that extent, the company policy Is to: a. Provide safe work environments. to, Conduct all operations Ina manner that reduces risk to all Individuals present at the jobske. C. Maintain all conditions in a way that eliminates all risk to visitors and to the public. d. Eliminate risk of damage to property In and adjacent to the site. 3. All labor is to be performed in a workmanlike manner during normal working hours, unless otherwise spedHed. Quality of such Is reflective of past projects completed by this company, and the customer may request to see such prior to the contract signing. 4. Una Rom costing Is based on job overhead allocations. Deletion or addition of quantities or the entire line Item does not necessarily equal the stated (or implied) unit costing. Any and all alterations to this proposal and contract after signing must be approved by an officer of this company. 5. All materials are of average construction grade. No assumption should be made on any other quality standards unless specifically noted. 8. Change orders authorize the owner to altar the work If the change In question falls within the general scope of the original agreement. The change order incorporates the following dements: a. Adjustments to the contract may only be affected by a change order. b. The change order must be in writing and signed by all parties. C. The change order must specify adjustment to both the contract price and the net effect on the project time. d. The change order will be for work that is within the scope of the original contract. e. No changed work will be performed without a properly executed change order except In the case where the contractor must ad in an emergency to prevent Injury or property damage. 7. All requests for payment will occur In no more than 30 day Intervals and may be as frequent as every 2 weeks. Payment must be made, In full, within 10 days. Failure to make said payment could result In stop work action by the company. If payment request Is In dispute, a letter must be submitted to the company within 5 days of receipt of Invoice, stating the concerns and recommended resolution to the concern. No ratalrwge shall be hold without prior contract documentation and at no time should that retalnage be over 5% of the Invoice amount. If the contract Is cancelled, the contractor will charge a 3% cancellation fee. S. The company warrants and / or guarantees the project to the following limitations: a. Materials: 30 days or to the extend end conditions ot the manufacturer of the material. b. Labor. 1 year after completion of project as represented by the date of the final contract invoice or the data of customer receipt of warranty notice, whichever comes first. C. Warranty shall not apply If final payment Is not received in accordance with the terms of the contract. 9. It Is the Intent of the contractor to complete the project In a timely manner, to achieve the goals the customer has for the project and to ensure a good experience for the customer and the company. To ensure these objectives, the following Project Management Procedure must be followed: a. A sales representative will complete the contract for the project Including financial commitments of the customer. (deposits, payment plan, etc.) b. When the proposal is signed and contract documents are completed, a meeting will be scheduled with a project manager or supervlsor, the company sales representative and the customer. The contract will be reviewed and discussed In its completeness. c. After Item V is completed to the satisfaction of the project manager, the project manager will then take control of the project until its completion or otherwise notified to the customer in writing. 10. Any other concern not mentioned above should be handled In conference with the President of the company. Ail payments for large commercial and industrial work shall be made as outlined below: a. Progress payments on a monthly basis. b. Final payment due 30 days after completion. All payments for residential and small commercial and Industrial work shall be made as outlined below: a. 113 of the total contract amount to be paid with the signing of the contract. b. 1/3 of the total contract amount when the project Is started. c. Final 1/3 due 10 days after the date the project is completed. All billings beyond terms will be accessed at a 1.5% monthly finance charge and any arrears Invoicing could cause work stoppage. Fee: 6aTR,MA3TERCmtr*dTam"Cax$U",0423.doc JOHN E. ANDERSON, JR. and CHERYL ANDERSON, Plaintiffs V. MAYAPPLE GOLF LINKS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 CIVIL TERM CIVIL ACTION - IN EQUITY PLAINTIFFS' PRE-TRIAL MEMORANDUM FACTS AS TO LIABILITY: Plaintiffs John and Cheryl Anderson purchased a residence at 13 Cardinal Drive, South Middleton Township, Cumberland County, Pennsylvania in approximately 1988. At that time their house was bordered by the Otto Farm which was an ongoing agricultural operation. Several years after the Andersons moved to the property, the Otto Farm was developed into a golf course now known as Mayapple Golf Links, the Defendant herein. Soon after the golf course opened the Plaintiffs began to experience ongoing, regular and escalating situations of golf balls being hit into their property. In the last several years, the volume of such balls has increased to the point of rendering the Andersons fearful of being outside in their backyard during golf season because of the regular striking of golf balls onto their property. The Plaintiffs have requested, on numerous occasions, that the owners of the golf course either redesign the tee box which has caused the golf balls to come on to their property or, in the alternative, to screen the property so that any golf balls coming towards the property will be caught by screening and diverted away. Even though these requests have been made in good faith, no action has been taken that has kept the golf balls from coming on to the property. The Andersons estimate several thousand golf balls have landed on their property during the last couple of years. II. BASIC FACTS AS TO DAMAGES: The property has been damaged by the striking of the golf balls on the siding of the house, the roof of the property, a vehicle had a windshield broken and the Plaintiffs are unable to enjoy the outside of their home for fear of being struck by flying golf balls. In addition, even after requests, the Defendants have failed to remedy the situation and the Plaintiffs have absorbed legal fees which are approaching $1,000 prior to trial. III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES: The Plaintiffs have plead one count of nuisance requesting an injunction, a count of negligence and trespass requesting monetary damages and a count requesting legal fees based on the unreasonable conduct of the Defendants. IV. EXPECTED LEGAL ISSUES: No complicated legal issues are expected or anticipated. V. WITNESSES: The Plaintiffs will individually testify and reserve the right to call any witnesses identified in Defendant's Pre-Trial Memorandum. VI. LIST OF EXHIBITS: The Plaintiffs will introduce estimates regarding the damage to their property as well as introduce a collection of golf balls which they have gathered on their property during the past season. VII. SETTLEMENT NEGOTIATIONS: The Defendant's manager/owner did meet at the Plaintiffs' property to investigate the possibility of screening. As of the date of this memorandum, no screening has been erected which would solve this problem. Respectfully Submitted TURO LAW OFFICES I 4 7/ 1/ Date Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Plaintiffs' Pre-Trial Memorandum upon Marcus A. McKnight, III, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the ? ? day of October, 1999, from Carlisle, Pennsylvania, addressed as follows: Marcus A. McKnight, III, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 TURO LAW OFFICES Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs JOHN E. ANDERSON, 311. and CHERYL ANDERSON, PLAINTIFFS VS. MAYAPPLE GOLF LINKS, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-3702 EQUITY TERM CIVIL ACTION - EQUITY PRE-TRIAL MEMORANDUM OF DEFENDANT, MAYAPPLE GOLF LINKS I. STATEMENT OF THE CASE: The plaintiffs, John and Cheryl Anderson, seek equitable relief against the defendant, Mayapple Golf Links. It must be noted that the entity named as defendant is a bankrupt corporation. Mayapple Golf Links is owned by Froelich and Company which purchased the golf course through the bankruptcy. The defendant as filed this action in equity but seems to be seeking monetary damages. If that is the case, there is an issue regarding whether the plaintiffs have an adequate remedy at law making this equitable action inappropriate. The golf course is situate in South Middleton Township, Cumberland County, and was approved by South Middleton Township. The owner of the course has taken measures to reduce the possibility that golf balls would land on the property of the plaintiffs. The owner of Mayapple Golf Links believes that the number of golf balls hit onto the property of the plaintiffs has been significantly reduced. Any remedial work must he incurred by the plaintiffs at their expense since the owner of Mayapple Golf Links is not responsible for the negligent actions of golfers who use its property. II. ISSUES: Question (1): Whether the plaintiffs are entitled to equitable relief since they also seek monetary damages. Suggested Answer: No. Question (2): Whether the defendant has any duty to redress the complaint of plaintiffs regarding golf balls hit onto their property. Suggested Answer: No. III. WITNESSES OF DEFENDANT: 1. James Froelich, President of Froelich and Company 2. Code Officer, South Middleton Township 3. Christopher Pecora, Surveyor 4. Herman L. Stine, Henkels & McCoy 5. Neighbors of the plaintiffs 6. The plaintiffs as on cross-examination IV. EXHIBITS: I . Copy of the original plan 2. Copy of the boundary survey of the plaintiffs' property and the property of the Mayapple Golf Course. 3. Estimates for screens 4. Photographs of the property 5. Answers to Interrogatories 2 V. SUGGESTED RESOLUTIONS: The defendant has taken reasonable efforts to minimize golf balls hit onto the property of the plaintiffs. Any additional measures would be most effective if placed on the plaintiffs' property at the expense of the plaintiffs. By: Date: October 25, 1999 Respectfully submitted, IRWIN, McKNIGHT & HUGHES MARCUS A. MCKNIGHT, II Attorney for defenda t, Mayapple GolfldnW 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 3 JOHN E. ANDERSON, JR. and CHERYL ANDERSON, PLAINTIFFS VS. MAYAPPLE GOLF LINKS, INC., DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-3702 EQUITY TERM CIVIL ACTION - EQUITY CERTIFICATE. OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Pre-Trial Memorandum of Defendant, Mayapple Golf Links, Inc. was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Ron Turo, Esquire Turn Law Offices 32 South Bedford Street Carlisle, PA 17013 IRWIN, /M/ccKK/NIGHT & HUGHES L • / By: 160West us A. {night, , Esquire Pomfret Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: October 251999 f? eb S y t x .P +x+51:, Fhb 'R,yy!k F? ? Jar 1 Y) j` _Jf;• J lr' P ' f ?1.? V.E !f r{ w 4 r7a )x F j ti ,rh?t? 'itr ^X. e f 1,? 4 ? t h?Mp ` '. w ?mmj P rok?v ;1. r7s Sf 'T° • ? Y., r t y iw N y 1 a 6 ;iL ; a ,,; $ , a• N 1 l?. 4L A? YJ1 1. ?. , n. N fJ vry ..?rxyyry' y ? ?q a p. i M 4AV? ,„ ?! 1 aJd? ,? !, of Yr t S ?rSY's xl?'C J ! ,.1 ? ?rA jrv?. F mn $$jjf,• ! 4? ELY ? ? rr/?r?(u?l'W4 1) P Y L?[ JOHN E. ANDERSON, JR. and CHERYLANDERSON, PLAINTIFFS VS. MAYAPPLE GOLF LINKS, INC., DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-3702 EQUITY TERM CIVIL ACTION - EQUITY PRE-TRIAL MEMORANDUM OF DEFENDANT MAYAPPLE GOLF LINKS 1. STATEMENT OF THE CASE: The plaintiffs, John and Cheryl Anderson, seek equitable relief against the defendant, Mayapple Golf Links. It must be noted that the entity named as defendant is a bankrupt corporation. Mayapple Golf Links is owned by Froelich and Company which purchased the golf course through the bankruptcy. The defendant as filed this action in equity but seems to be seeking monetary damages. If that is the case, there is an issue regarding whether the plaintiffs have an adequate remedy at law making this equitable action inappropriate. The golf course is situate in South Middleton Township, Cumberland County, and was approved by South Middleton Township. The owner of the course has taken measures to reduce the possibility that golf balls would land on the property of the plaintiffs. The owner of Mayapple Golf Links believes that the number of golf balls hit onto the property of the plaintiffs has been significantly reduced. Any remedial work must be incurred by the plaintiffs at their expense since the owner of Mayapple Golf Links is not responsible for the negligent actions of golfers who use its property. [I. ISSUES: Question (1): Whether the plaintiffs are entitled to equitable relief since they also seek monetary damages. Suggested Answer: No. Question (2): Whether the defendant has any duty to redress the complaint of plaintiffs regarding golf balls hit onto their property. Suggested Answer: No. III. WITNESSES OF DEFENDANT: 1. James Froelich, President of Froelich and Company 2. Code Officer, South Middleton Township 3. Christopher Pecora, Surveyor 4. Herman L. Stine, Henkels & McCoy 5. Neighbors of the plaintiffs 6. The plaintiffs as on cross-examination IV. EXHIBITS: 1. Copy of the original plan 2. Copy of the boundary survey of the plaintiffs' property and the property of the Mayapple Golf Course. 3. Estimates for screens 4. Photographs of the property 5. Answers to Interrogatories 2 V. SUGGESTED RESOLUTIONS: The defendant has taken reasonable efforts to minimize golf balls hit onto the property of the plaintiffs. Any additional measures would be most effective if placed on the plaintiffs' property at the expense of the plaintiffs. Respectfully submitted, IRWIN, By: MAROUS A. McKI G Attorney for defend Mayapple Golf Links 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: October 25, 1999 3 JOHN E. ANDERSON, JR. and CHERYL ANDERSON, PLAINTIFFS VS. MAYAPPLE GOLF LINKS, INC., DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-3702 EQUITY TERM CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE 1, Marcus A. McKnight, 111, Esquire, hereby certify that a copy of attached Pre-Trial Memorandum of Defendant, Mayapple Golf Links, Inc. was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Ron Turo, Esquire Turo Law Offices 32 South Bedford Street Carlisle, PA 17013 IRWIN, McKNIGHT & HUGHES By: Marcus A. McI fight, I , Esquire 60 West Pomfret Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: October 25 1999 w V J, uF P II ? t :2 tl ?c. ilt r 1 ?+ w y?^ r - situ{ R'Y i d? 2?k r- ' n r wyxv.. Y y't? M1 avy i N ', yg `y.? PPPddd rv r rr r 3 '?? ? ?A'v aS D pP?q ?,Py JAY a a a ^?y? ?y nk r r/ r / L { R y t .?'M1p? n YlY 01 f r ?Wti ISi?lp I !_?aGr? i t ?. ilfF9 ;. hr. f f 1 t fit` 35 f ? V P ? fix) i? N. Jn JOHN E. ANDERSON, JR. and : IN THE COURT OF COMMON PLEAS OF CHERYL ANDERSON, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 3 7oz ?,? V. MAYAPPLE GOLF LINKS, INC., : CIVIL ACTION - IN EQUITY Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 JOHN E. ANDERSON, JR. and : IN THE COURT OF COMMON PLEAS OF CHERYL ANDERSON, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs :NO. 99. 37oz N V. U MAYAPPLE GOLF LINKS, INC., : CIVIL ACTION - IN EQUITY Defendant COMPLAINT 1. Plaintiffs John and Cheryl Anderson are adult individuals residing at 13 Cardinal Drive, Carlisle, Cumberland County, Pennsylvania. 2. Defendant, Mayapple Golf Links, Inc., is a Pennsylvania Corporation with its principle place of business at 1 Mayapple Drive, Carlisle, Cumberland County, Pennsylvania. 3. Mayapple Gold Links is a recreational golf course located in Carlisle, Cumberland County, Pennsylvania. 4. Plaintiffs' residence is located immediately adjacent to Defendant's recreational golf facility. 5. Plaintiffs moved to the residence in 1988, approximately 2 years before Defendant began its operations at Mayapple Golf Links. 6. The use of Defendant's golf course over the last seven (7) years has caused an inordinate number of golf balls to be hit onto Plaintiffs' property. 7. Plaintiffs have recovered literally thousands of golf balls from their property during the period of the operation of Defendant's business. 8. The constant barrage of golf balls on Plaintiffs' property has caused significant damage to the siding attached to Plaintiffs' dwelling. 9. As a direct result of the damage from golf balls by operation of Defendant's business, the siding on Plaintiffs residence is in need of replacement. 10. A vehicle owned by Plaintiffs on Plaintiffs' property received windshield damage as a result of the operation of Defendant's business. 11. Plaintiffs can no longer enjoy the outside portion of their property for fear of being struck by golf balls from the operation of Defendant's business. NTI 12. Paragraphs 1 through 11 are incorporated by reference as if set forth herein in full. 13. For all of the above reasons stated in this complaint, the activity organized, promoted, and operated by Defendant Mayapple Golf Links, Inc. constitutes a private nuisance without adequate remedy at law requiring the granting of an injunction to prevent further damage to the Plaintiffs. WHEREFORE, the Plaintiffs respectfully request that this Honorable Court issue a preliminary and permanent injunction against Defendant Mayapple Golf Links, Inc. and any successors in ownership of the Mayapple Golf Links and perpetually enjoining the further use of this property in a manner which unreasonably interferes with the use and enjoyment of Plaintiffs' property. COUNT II 14. Paragraphs 1 through 13 are incorporated by reference as if set forth herein in full. 15. As a direct and proximate result of Defendant's unreasonable use of its property, Plaintiffs have been damaged by the barrage of golf balls on their property, vehicles, and person which have resulted in damages in excess of twenty five thousand ($25,000.00) dollars. WHEREFORE, Plaintiffs demand judgment against Defendant Mayapple Golf Links, Inc. in an amount in excess of twenty five thousand ($25,000.00) dollars plus interest and costs as this Court may allow. COUNT III 16. Paragraphs 1 through 15 are incorporated by reference as if set forth herein in full. 17. As a direct and proximate result of Defendant's unreasonable use of its property and the damages sustained by the Plaintiffs as alleged above, Plaintiffs have also been required to expend sums of money for attorney's fees and costs, which attorney's fees and costs are a direct and proximate result of the Defendant's unreasonable conduct in refusing to rectify the problem which has previously been brought to Defendant's attention. WHEREFORE, Plaintiffs demand judgment against Defendant and request this Court to award attorney's fees and costs in an amount to be determined by the Court. Respectfully Submitted TURO LJaW OFFICES Date Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs VERIFICATION We verify that the statements made in the foregoing Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. /' /'/ A ?5P Date Date -aa E(2? ?2 - h,46hn E. Anderson, Jr. Cheryl Ahderson ry ? 4 P S ? a T 6) b ?r. r- ? ? I ? L\ iJ JOHN E. ANDERSON, JR., and : IN THE COURT OF COMMON PLEAS OF CHERYL ANDERSON, PLAINTIFFS : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 99-3702 CIVIL TERM MAYAPPLE GOLF LINKS, INC., EQUITY TERM DEFENDANT NOTICE TO PLEAD TO: John E. Anderson, Jr. and Cheryl Anderson and thier attorney, Ron Turo, Esquire YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER TO COMPLAINT WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. IRWIN, McKNIGHT & HUGHES By: Marcuf A. McKnigh III, uir6 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Supreme Court ID. No. 25476 Attorney for Defendant Date: August l7, 1999 JOHN E. ANDERSON, JR., and CHERYL ANDERSON, PLAINTIFFS V. MAYAPPLE GOLF LINKS, INC., DEFENDANT : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 CIVIL TERM EQUITY TERM ANSWER WITH NEW MATTER AND NOW, this 17th day of August 1999 comes the defendant by its attorneys, Irwin, McKnight & Hughes, and makes the following Answer with New Matter: The averments of fact contained in paragraph one (1) of the Complaint are admitted. 2. The averments of fact contained in paragraph two (2) of the Complaint are specifically denied. On the contrary, the property is owned by Frolich & Company, Inc. 3. The averments of fact contained in paragraph three (3) of the Complaint are admitted. 4. The averments of fact contained in paragraph four (4) of the Complaint are admitted. 5. The averments of fact contained in paragraph five (5) of the Complaint are within the knowledge and control of the plaintiffs. They are therefore denied and proof thereof is demanded. 6. The averments of fact contained in paragraph six (6) of the Complaint are within the knowledge and control of the plaintiffs. They are therefore denied and proof thereof is demanded. 7. The averments of fact contained in paragraph seven (7) of the Complaint are within the knowledge and control of the plaintiffs. They are therefore denied and proof thereof is demanded. 8. The averments of fact contained in paragraph eight (8) of the Complaint are within the knowledge and control of the plaintiffs. They are therefore denied and proof thereof is demanded. 9. The averments of fact contained in paragraph nine (9) of the Complaint are within the knowledge and control of the plaintiffs. They are therefore denied and proof thereof is demanded. 10. The averments of fact contained in paragraph ten (10) of the Complaint are within the knowledge and control of the plaintiffs. They are therefore denied and proof thereof is demanded. The averments of fact contained in paragraph eleven (11) of the Complaint are within the knowledge and control of the plaintiffs. They are therefore denied and proof thereof is demanded. COUNTI 12. The averments of fact contained in paragraphs one (1) through twelve (12) of the Answer to Complaint are hereby incorporated by reference in response to paragraph twelve (12) of the Complaint. 13. The averments of fact contained in paragraph thirteen (13) of the Equity Complaint are specifically denied. On the contrary, the defendant is engaged in the legitimate business of operating a public golf course which has been properly approved by the officials of South Middleton Township. The playing of golf does not constitute a private nuisance to the plaintiffs. WHEREFORE, the defendant requests the Court dismiss the Complaint of the plaintiffs, John E. Anderson, Jr. and Cheryl Anderson, with costs and reasonable legal fees awarded to the defendant. COUNT II 14. The averments of fact contained in paragraph one (1) through thirteen (13) of the Answer to Complaint are hereby incorporated by reference in response to paragraph fourteen (14) of the Equity Complaint. 15. The averments of fact contained in paragraph fifteen (15) of the Complaint are alleged damages for which the plaintiffs have exclusive knowledge and control. They are therefore denied and proof thereof is demanded. WHEREFORE, the defendants requests that the Court dismiss the Complaint of the plaintiffs with costs and reasonable legal fees awarded to the defendant. COUNT III 16. The averments of fact contained in paragraph one ( I ) through fifteen (15) of the Answer to Complaint are hereby incorporated by reference in response to paragraph sixteen (16) of the Equity Complaint. 4 17. The averments of fact contained in paragraph seventeen (17) of the Complaint are specifically denied. On the contrary, the use of the property of the defendant as a golf course is reasonable and has been properly approved by the proper authorities. The plaintiffs have no legitimate basis for being awarded legal fees and costs. It is the defendant which should be awarded its legal fees spent in the defense of this litigation. WHEREFORE, the defendant requests that the Court award it costs and legal fees and dismiss the Complaint of the plaintiffs. NEW MATTER AND NOW, this 17th day of August 1999 comes the defendant by its attorneys, Irwin, McKnight & Hughes, and makes the following New Matter to the Complaint of the plaintiffs. is. The claims of the plaintiff for monetary damages are barred by the statute of limitations. 19. The claim for equitable relief is not appropriate since the plaintiffs seek monetary damages and have an adequate remedy at law. 20. The defendant has designed the course in such a manner as to reduce the number of golf balls which are hit in error to their property. 21. The defendant has a large stand of mature trees which serves as a screen for the plaintiffs from the golf course. 22. The existence of the golf course has increased the property value of the plaintiffs' property which adjoins the property of the defendant. 23. If any golf balls are hit onto the property of the plaintiffs, they are due to the actions of the golfers who may be liable for any damages claimed by the plaintiffs. The defendant is not liable for their actions to which the plaintiffs now object. 24. The plaintiffs have failed to take any action on their own property to reduce any problem created by a golf ball hit onto their property in error by a golfer. 6 WHEREFORE, the defendant respectfully requests that the Equity Complaint of the plaintiffs be dismissed with the judgment in favor of the defendant with costs of action and reasonable legal fees awarded to the defendant. Respectfully submitted. IRWIN, MCKNIGHT & HUGHES By: Marcus/4. McKnig`IrlIII, Esquire 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717)249-2353 Supreme Court I.D. No. 25476 Attorney for defendant Date: August 17, 1999 7 VERIFICATION The foregoing document is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unswom falsification to authorities. ?/^ MES S. FROELICH For the defendant Date: August 17, 1999 JOHN E. ANDERSON, JR., and CHERYL ANDERSON, PLAINTIFFS V. MAYAPPLE GOLF LINKS, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 CIVIL TERM EQUITI' TERM CERTIFICATE OF SERVICE 1, Marcus A. McKnight, 111, Esquire, hereby certify that a copy of attached Answer with New Matter and was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Ron Turn, Esquire TURO LAW OFFICES 32 South Bedford Street Carlisle, PA 17013 IRWIN, McKNIGHT & HUGHES LC7'ij- By: Marcus A. NIcWhight, lll; F`s 60 West Pomfret S eet Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: August 17, 1999 a t - J a? r ? G X41, ? ' ` z m ? Z c ? ? yw ? ?l w O z Q ? LL LL y Wry. t0 Q ? W N^ SG d °o W S IN M SHERIFF'S RETURN - REGULAR CASE NO: 1999-03702 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ANDERSON JOHN E JR ET AL VS. MAYAPPLE GOLF LINKS INC DAVID MCKINNEY , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT IN was served upon MAYAPPLE GOLF LINKS INC the defendant, at 14:36 HOURS, on the 24th day of June 1999 at 1 MAYAPPLE DRIVE CARLISLE, PA CUMBERLAND County, Pennsylvania, by handing to ARTHURE FERGUSON (PERSON IN CHARGE) a true and attested copy of the NOTICE AND COMPLAINT IN together with EQUITY and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service 18.00 3 10 So answers: Affidavit . 00 . -- l Surcharge 8.00 .1110111&5 omas R ine, 3 eri 06/25%1999 by 4M er Sworn and subscribe to before me this 25 a, day of L 19 99 A.D. rocnonoc.ar .r 7 0 W I wN n NO MT w 00 '? F U a v u O ? i rF.. 5 a c ? ? ~ a ? < ya 3 0 J LL pp . O pa r7 3 u M V JOHN E. ANDERSON, JR. and CHERYL ANDERSON, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 99-3702 EQUITY ACTION MAYAPPLE GOLF LINKS, INC., DEFENDANT PRAECIPE TO ENTER APPEARANCE To: Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the defendant in this case, MAYAPPLE GOLF LINKS, INC. Respectfully submitted, IRWIN McKNIGHT & HUGHES Api'1 y. By: 60 West Pomfret Street Carlisle, PA 17013 (717)249-2353 Supreme Court I.D. No. 25476 Attorney for defendant, Mayapple Golf Links, Inc. II Marcus cKn ght, E- uirc Date: July 12, 1999 JOHN E. ANDERSON, JR. and CHERYL ANDERSON, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 99-3702 EQUITY ACTION MAYAPPLE GOLF LINKS, INC., DEFENDANT CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of the Praccipe to Enter Appearance was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania 17013, on the date referenced below and addressed as follows: RON TURD, ESQUIRE Ron Turo Associates 32 South Bedford Street Carlisle, PA 17013 IRWIN, McKNIGHT & HUGHES By: Mareu?A. Mc ht, Ill's 60 blest Pomf t Street Carlisle, Pcnn Ivania 17013 (717)249-2353 Supreme Court I.D. No. 25476 Date: July 12, 1999 JOHN E. ANDERSON, JR., IN THE COURT OF COMMON PLEAS OF and CHERYL ANDERSON, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - EQUITY FROELICH AND COMPANY, INC., Defendant 99-3702 CIVIL TERM IN RE: CAPTION AMENDED ORDER OF COURT AND NOW, this 28th day of October, 1999, pursuant to an agreement of counsel in the person of Ron Turo, Esquire, on behalf of the Plaintiffs, and Marcus A. McKnight, III, Esquire, on behalf of the Defendant, the entity of Froelich and Company, Inc. is substituted for Defendant Mayapple Golf Links, Inc. in this case. By the Court, Ron Turo, Esquire For the Plaintiff Marcus A. McKnight, III For the Defendant J. es ey 0 Jr. , J,. Esquire it/s/FY :mae c w ' ?. :? ; .- U ?. C. n-S ?;i . _ O . U. .. '_ ? ? C,- ' . . ?i_ L. C+ "' ? ??' ?? Turo Law O RON TURD, Esquire ROBERT J. MULDERIG, Esquire LISA M. GREASON, Esquire DAVID A. GREENE, Esauire February 2, 2000 Honorable J. Wesley Oler, Jr. Courthouse Carlisle, PA 17013 RE: Anderson v. Froelick & Co., Inc. 99-3702 Civil Term Dear J. Oler: 32 South Bedford Street Carlisle, Pennsylvania 17013 (717)245.9688 800 562-9778 Fax (717) 245-2165 Enclosed please find Plaintiffs Pretrial Memo as required in your recent Order scheduling the above case for Pretrial Conference on Wednesday February 16, 2000. 1 thank you in advance for your attention. TURO,ESQU Law@aol.com RT/rms cc: Marcus McKnight, Esquire FE6 - A JOHN E. ANDERSON, JR. and CHERYL ANDERSON, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 CIVIL TERM V. FROELICK AND COMPANY, INC., Defendant CIVIL ACTION - IN EQUITY PLAINTIFFS' PRE-TRIAL MEMORANDUM FACTS AS TO LIABILITY: Plaintiffs John and Cheryl Anderson purchased a residence at 13 Cardinal Drive, South Middleton Township, Cumberland County, Pennsylvania in approximately 1988. At that time their house was bordered by the Otto Farm which was an ongoing agricultural operation. Several years after the Andersons moved to the property, the Otto Farm was developed into a golf course now known as Mayapple Golf Links, the Defendant herein. Soon after the golf course opened the Plaintiffs began to experience ongoing, regular and escalating situations of golf balls being hit into their property. In the last several years, the volume of such balls has increased to the point of rendering the Andersons fearful of being outside in their backyard during golf season because of the regular striking of golf balls onto their property. The Plaintiffs have requested, on numerous occasions, that the owners of the golf course either redesign the tee box which has caused the golf balls to come on to their property or, in the alternative, to screen the property so that any golf balls coming towards the property will be caught by screening and diverted away. Even though these requests have been made in good faith, no action has been taken that has kept the golf balls from coming on to the property. The Andersons estimate several thousand golf balls have landed on their property during the last couple of years. II. BASIC FACTS AS TO DAMAGES: The property has been damaged by the striking of the golf balls on the siding of the house, the roof of the property, a vehicle had a windshield broken and the Plaintiffs are unable to enjoy the outside of their home for fear of being struck by flying golf balls. In addition, even after requests, the Defendants have failed to remedy the situation and the Plaintiffs have absorbed legal fees which are in excess of $1,000. III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES: The Plaintiffs have pled one count of nuisance requesting an injunction, a count of negligence and trespass requesting monetary damages and a count requesting legal fees based on the unreasonable conduct of the Defendants. IV. EXPECTED LEGAL ISSUES: No complicated legal issues are expected or anticipated. V. WITNESSES: The Plaintiffs will individually testify and reserve the right to call any witnesses identified in Defendant's Pre-Trial Memorandum, Plaintiffs will also call a representative for Tuckey Restoration to estimate the home damages. VI. LIST OF EXHIBITS: The Plaintiffs will introduce estimates regarding the damage to their property as well as introduce a collection of golf balls which they have gathered on their property during the past season, and will introduce the legal fees incurred through trial. VII. SETTLEMENT NEGOTIATIONS: The Defendant's manager/owner did meet at the Plaintiffs' property to investigate the possibility of screening. As of the date of this memorandum, no screening has been erected which would solve this problem. Respectfully Submitted TURO LAW OFFICES ,?) 14 lec Date %z? l0 Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Plaintiffs' Pre-Trial Memorandum upon Marcus A. McKnight, III, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the a day of February, 2000, from Carlisle, Pennsylvania, addressed as follows: Marcus A. McKnight, III, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 TURO LAW OFFICES Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs LAW OFFICES IRWIN MCKNIGHT & HUGHES WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET ROGERR.IRWIN CARLISLE, PENNSYLVANIA 17013.3222 MARCUS A. MCKNIGHT. 111 JAMES D. HUGHES (717) 249-2353 REBECCA R. HUGHES FAX (717) 249- 6354 MIRKO SCHWARTL E-MAIL: IMHLAWOSUPERNETCOM DOUGLASG. MILLER February 11, 2000 The Honorable J. Wesley Oler, Jr. Court of Common Pleas of Cumberland County Cumberland County Courthouse Carlisle, PA 17013 Re: John E. Anderson, Jr. and Cheryl Anderson v. Froelich & Company, Inc. Dear Judge Oler: HAROLD S. IRWIN (1911.1977) HAROLDS. IRWIN. JR. (1954-1986) IRWIN. IRWIN & IRWIN (19561986) IRWIN. IRWIN & M<KNIGHT (1986.1994) IRWIN, MCKNIGHT & HUGHES (1994- ) I have enclosed the Pre-Trial Memorandum of defendant, Froelich & Company, Inc. The Pre-Trial is scheduled for next Wednesday, February 16, 2000 and 1:30 p.m, in your chambers. Very truly yours, IRWIN, Mc IG & UGHES Marcus . c ight, III, sq. MAWmin Encl. cc: Ron Turo, Esquire James Froelich, President Froelich & Company, Inc. FFe ? 1 2000 JOHN E. ANDERSON, JR. and CHERYL ANDERSON, PLAINTIFFS VS. FROELICH & COMPANY, INC., DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-3702 EQUITY TERM CIVIL ACTION - EQUITY PRE-TRIAL MEMORANDUM OF DEFENDANT. FROELICH & COMPANY, INC. I. STATEMENT OF THE CASE: The plaintiffs, John and Cheryl Anderson, seek equitable relief against the defendant, Froelich & Company, Inc. It must be noted that the entity named as defendant is a bankrupt corporation. Mayapple Golf Links is owned by Froelich and Company, Inc. which purchased the golfcourse through the bankruptcy. The defendant as filed this action in equity but seems to be seeking monetary damages. If that is the case, there is an issue regarding whether the plaintiffs have an adequate remedy at law making this equitable action inappropriate. The golf course is situate in South Middleton Township, Cumberland County, and was approved by South Middleton Township. The owner of the course has taken measures to reduce the possibility that golf balls would land on the property of the plaintiffs. The owner of Mayapple Golf Links believes that the number of golf balls hit onto the property of the plaintiffs has been significantly reduced. Any remedial work must be incurred by the plaintiffs at their expense since the owner of Mayapple Golf Links is not responsible for the negligent actions of golfers who use its property. ?Eg ? 1 1000 U. ISSUES: Question (1): Whether the plaintiffs are entitled to equitable relief since they also seek monetary damages. Suggested Answer: No. Question (2): Whether the defendant has any duty to redress the complaint of plaintiffs regarding golf balls hit onto their property. Suggested Answer: No. III. WITNESSES OF DEFENDANT: 1. James Froelich, President of Froelich and Company, Inc. 2. Code Officer, South Middleton Township 3. Christopher Pecora, Surveyor 4. Herman L. Stine, Henkels & McCoy 5. Neighbors of the plaintiffs 6. The plaintiffs as on cross-examination IV. EXHIBITS: 1. Copy of the original plan 2. Copy of the boundary survey of the plaintiffs, property and the property of the Mayapple Golf Course. 3. Estimates for screens 4. Photographs of the property 5. Answers to Interrogatories The defendant objects to any new estimates of the plaintiffs which have not been delivered to the defendant by this date. 2 V. SUGGESTED RESOLUTION - SETTLEMENT NEGOTIATIONS: The defendant has taken reasonable efforts to minimize golf balls hit onto the property of the plaintiffs. Any additional measures would be most effective if placed on the plaintiffs' property at the expense of the plaintiffs. The defendant and plaintiffs had agreed that the plaintiffs would incur their own expenses if the defendant took remedial relief in the form of fencing or protection located at the site of the nearest tee. At the last minute, the plaintiffs also requested financial compensation to which the defendant agreed. Now the defendant has no idea of the position taken by the plaintiffs. The defendant cannot settle this case until the plaintiffs honor their own proposals to settle this case. Respectfully submitted, IRWIN, McKNIGHT & By: MARCUS A. Mc GHT, II , ESQUIRE Attorney for defen Froelich and Company, Inc. 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: February 7, 2000 3 ? R fi ? r r t+;t? xx tom' ?x if >ttrnc ?;"{N M 7A 4GnTl'x 6 Y i ,? ? ryA. '?f ?Cy t j ? N '!iJ Y!Y• Si }'} ? ?..; YM 114 M •?43v ,fit f, V ? vF?YJx4? `? ynf}v r 1 MR Y _? N a1}{.i -' v • ' ci ,tl . S ?? 4? 1Jr /l rye '( ?A ? h q ?Cl: A A •, ?yy?f d a y+ e n,y.?. ??x?f f A .t VSx 4 gu, '1J t xri. x^r1a ?< 2 T?{Fa??i !+s 4t i { 4 ? . a t K. 1 f H" ? a V. ?'f [ r 7 az .. r??hk 4 JOHN E. ANDERSON, IN THE COURT OF COMMON PLEAS OF JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - EQUITY FROELICK AND COMPANY, INC., Defendant NO. 99-3702 CIVIL TERM ORDER OF COURT AND NOW, this ?p day of January, 2000, upon consideration of the attached letter from Ron Turo, Esq., attorney for Plaintiff, a pretrial conference in the above matter is SCHEDULED for Wednesday, February 16, 2000, at 1:30 p.m., in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is SCHEDULED for Wednesday, March 22, 2000, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. J. Ron Turo, Esq. 32 S. Bedford Street Carlisle, PA 17013 Attorney for Plaintiff 8119 C07 t 1? C2ar % C?j ?J2 , t ® wC' C? Z' n? BY THE COURT, _ d:,)TARY 00 JAN I I PRA 2:9,8 CUW'SEh AjjD COUNTY PE%SYIUANiA Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant :rc Turo Law Offices RON TURD, Esquire ROBERT J. MULDERIG, Esquire LISA M. GREASON, Esquire DAVID A. GREENE, Esquire January 5, 2000 The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse Carlisle, PA 17013 RE: Anderson v. Froelich & Co., Inc. No. 99-3702 Civil Term Dear Judge Oler: 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 245-9688 800 562-9778 Fax (717) 245-2165 You continued a non-jury trial in the above-captioned matter on December 1, 1999 upon our understanding that the parties would be attempting to reach an amicable conclusion in the matter. Unfortunately I have been advised by my clients that the matter has not been amicably resolved and consequently I would ask that you reschedule a non-jury trial forthwith. I would appreciate an opportunity for another pre- trial conference in order to bring the Court up to date on the evidence we plan to adduce at trial including updated damage estimates which will be provided to counsel. I thank you I advance for your anticipated rescheduling of this matter. yn,iyv, v,y vuRON TURD, ESQU Z4 IRE Turo Law@aol.com RT/kad cc: John & Cheryl Anderson Marcus McKnight, III, Esquire JAY - 7 Nuw JOHN E. ANDERSON, JR., IN THE COURT OF COMMON PLEAS OF and CHERYL ANDERSON, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - EQUITY FROELICH AND COMPANY, INC., Defendant 99-3702 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference in the above-captioned action was held in the chambers of Judge Oler on Thursday, October 28, 1999. Present on behalf of the Plaintiffs was Ron Turo, Esquire. Present on behalf of the Defendant was Marcus A. McKnight, III, Esquire. This is a private nuisance/trespass action for legal and equitable relief arising out of alleged intrusions on Plaintiffs' property by golf balls emanating from Defendant's property. Defenses include the contention that Defendant is not responsible for errant shots by golfers upon its premises. This will be a nonjury trial of an estimated duration of 1 day. Trial has been scheduled for Thursday, December 2, 1999, at 9:30 a.m. With respect to settlement negotiations, Plaintiffs' primary demand appears to be for screening of their property from golf balls emanating from Defendant's property. Defendant as of this date has not agreed to this demand. It is noted that the proper defendant in this case appears to be a successor to Defendant Mayapple Golf Links, Inc., known as Froelich and Company, Inc. By separate Order of Court of even date herewith, pursuant to an agreement of counsel, Froelich and Company, Inc., will be substituted as the Defendant in this case. Pursuant to an agreement of counsel, all witnesses to be called in this matter, and all exhibits to be introduced, shall be identified for the opposing party not later than November 10, 1999. By the Court, L 9J J Wesley O er, Jr., J. Ron Turo, Esquire For the Plaintiff Marcus A. McKnight, III, Esquire For the Defendant :mae r C\ , a, ii JOHN E. ANDERSON, JR. and CHERYL ANDERSON, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 CIVIL TERM V. MAYAPPLE GOLF LINKS, INC., Defendant CIVIL ACTION - IN EQUITY PLAINTIFF'S ANSWER TO DEFENDANT MAYAPPLE GOLF LINKS. INC.'S NEW MATTER 18. Denied. This paragraph is denied as a legal conclusion to which no responsive pleading is required. 19. Denied. This paragraph is denied as a legal conclusion to which no responsive pleading is required. 20. Denied. Any design or redesign of Defendant's golf course has not significantly reduced or ceased the amount of golf balls being hit unto Plaintiffs property. 21. Denied. The large stand of mature trees on Defendant's property is and always has been ineffective to stop the constant barrage of golf balls onto Plaintiffs' property. 22. Denied. The nuisance of the constant bombardment of golf balls unto Plaintiff's property counter-acts any increase in property value the presence of Defendant's golf course might have provided. 23. Denied. This paragraph is denied as a legal conclusion to which no responsive pleading is required. 24. Denied. Plaintiffs have re-located vehicles on their property, refrained from hanging clothes outside during active golfing periods, and have repeatedly notified Defendant of the continuing nuisance on their property. WHEREFORE, Plaintiffs, John E. Anderson, Jr. and Cheryl Anderson respectfully request this Honorable Court dismiss Defendant Mayapple Golf Links, Inc.'s New Matter and enter judgment in favor of Plaintiff with costs assessed to Defendant. Respectfully Submitted TURD LAW OFFICES Dat wd- 114- Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Plaintiffs Answer to Defendant Mayapple Golf Links, Inc.'s New Matter upon Marcus A. McKnight, III, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the -_a_3 day of August, 1999, from Carlisle, Pennsylvania, addressed as follows: Marcus A. McKnight, III, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 LAW OFFICES 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff r a. N , I - L% ll :10. U. c:J U Ln U PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROT]IONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. (X ) for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) John E. Anderson, Jr. and Cheryl Anderson, (Plaintiff) VS. Mayapple Golf Links, Inc., ( ) Civil Action - Law ( ) Appeal from Arbitration (X ) Civil Action - Equity (other) The trial list will be called on and (Defendant) VS. Trials commence on Pretrials will be held on (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. Civil 99-3702 19 Indicate the attorney who will try case for the party who files this praecipe: Ron Turo, Esquire Indicate trial counsel for other parties if known: Marcus McKnight, Esquire This case is ready for trial. Signed: `/- fVL Ron Turo, Print Name: Date: September 1, 1999 Attorney for: Plaintiffs a. u cr, ?: c.. 41 tJ;? V1 C'l ' 'Ali 1Y OFFICE OF THE COURT ADMINISTRATOR CUMBERLAND COUNTY COURT OF COMMON PLEAS 1 Courthouse Square • Carlisle, PA 17013 Richard J. Pierce Phone Court Administrator (717) 240.6200 (717)697.0371 (717) 532.7286 (717) 240.6462 FAX Taryn N. Dixon Assistant Court Administrator MEMORANDUM TO: The Honorable Judge J. Wesley Oler, Jr. FROM: Taryn N. Dixon, Assistant Court Administrator DATE: September 1, 1999 IN RE: 3702 Equity 1999 JOHN E. ANDERSON, JR. VS. MAYAPPLE GOLF LINKS, INC. The above case is assigned to you for a non jury trial. Please provide me with copies of your scheduling orders and final disposition date so I can monitor the case for statistical purposes. PRAECIPE FOR LISTING CASE FOR TRIAL SEP - 1 1999 (Must be typewritten and submitt d ' e in duplicate) r> ,n (_ lU '•)f. ' TO THE PROTHONOTARY OF CUMBERLAND COUNTY=" u Please list the following case: (Check one) ( ) for JURY trial at the next term of civil c'byrt. (X ) for trial without a jury. ?o --------------------------- -------------- CAPTION OF CASE (entire caption must be stated in full) (check one) John E. Anderson, Jr. and Cheryl Anderson, (Plaintiff) VS. Mayapple Golf Links, Inc., (Defendant) VS. ( ) Civil Action - Law :f> ( ) Appeal from Arbitration (X ) Civil Action - Equity (other) The trial list will be called on and Trials connence on Pretrials will be held on (Briefs are due 5 days before pretrials.) (The party listing this case for trial she,11 provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. Civil 99-3702 19 Indicate the attorney who will try case for the party who files this praecipe: Ron Turo, Esquire Indicate trial counsel for other parties if known: Marcus McKnight, Esquire This case is ready for trial. / Signed: Print Name: Ron Toro, Date: September 1, 1999 Attorney for: Plaintiffs JOHN E. ANDERSON, JR. and CHERYL ANDERSON, Plaintiffs V. MAYAPPLE GOLF LINKS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-3702 EQUITY TERM ORDER OF COURT AND NOW, this day of September, 1999, a pretrial conference in the above matter is SCHEDULED for Thursday, October 28, 1999, at 1:30 p.m., in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is SCHEDULED for Thursday, December 2, 1999, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Ron Turo, Esq. 32 S. Bedford Street Carlisle, PA 17013 Attomey for Plaintiffs BY THE COURT, J. esley Oler, Jr., . ? - Vii) c,-^ _ ; F; ?• n ? ::??, - ,`r,",' , Marcus A. McKnight, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant Court Administrator -%Ta. (:?•_ :rc Ca-?? ?? til 8/Q ti JOHN E. ANDERSON, JR. and CHERYLANDERSON, Plaintiffs V. MAYAPPLE GOLF LINKS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 CIVIL TERM CIVIL ACTION - IN EQUITY PLAINTIFFS' PRE-TRIAL MEMORANDUM FACTS AS TO LIABILITY: Plaintiffs John and Cheryl Anderson purchased a residence at 13 Cardinal Drive, South Middleton Township, Cumberland County, Pennsylvania in approximately 1988. At that time their house was bordered by the Otto Farm which was an ongoing agricultural operation. Several years after the Andersons moved to the property, the Otto Farm was developed into a golf course now known as Mayapple Golf Links, the Defendant herein. Soon after the golf course opened the Plaintiffs began to experience ongoing, regular and escalating situations of golf balls being hit into their property. In the last several years, the volume of such balls has increased to the point of rendering the Andersons fearful of being outside in their backyard during golf season because of the regular striking of golf balls onto their property. The Plaintiffs have requested, on numerous occasions, that the owners of the golf course either redesign the tee box which has caused the golf balls to come on to their property or, in the alternative, to screen the property so that any golf balls coming towards the property will be caught by screening and diverted away. Even though these requests have been made in good faith, no action has been taken that has kept the golf balls from coming on to the property. The Andersons estimate several thousand golf balls have landed on their property during the last couple of years. II. BASIC FACTS AS TO DAMAGES: The property has been damaged by the striking of the golf balls on the siding of the house, the roof of the property, a vehicle had a windshield broken and the Plaintiffs are unable to enjoy the outside of their home for fear of being struck by flying golf balls. In addition, even after requests, the Defendants have failed to remedy the situation and the Plaintiffs have absorbed legal fees which are approaching $1,000 prior to trial. III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES: The Plaintiffs have plead one count of nuisance requesting an injunction, a count of negligence and trespass requesting monetary damages and a count requesting legal fees based on the unreasonable conduct of the Defendants. IV. EXPECTED LEGAL ISSUES: No complicated legal issues are expected or anticipated. V. WITNESSES: The Plaintiffs will individually testify and reserve the right to call any witnesses identified in Defendant's Pre-Trial Memorandum. VI. LIST OF EXHIBITS: The Plaintiffs will introduce estimates regarding the damage to their property as well as introduce a collection of golf balls which they have gathered on their property during the past season. VII. SETTLEMENT NEGOTIATIONS: The Defendant's manager/owner did meet at the Plaintiffs' property to investigate the possibility of screening. As of the date of this memorandum, no screening has been erected which would solve this problem. Respectfully Submitted TURD LAW OFFICES /0 Date l v( Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Plaintiffs' Pre-Trial Memorandum upon Marcus A. McKnight, III, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the day of October, 1999, from Carlisle, Pennsylvania, addressed as follows: Marcus A. McKnight, III, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 TURO LAW OFFICES Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs 2 3 4 5 6 7 8 9 10 11 12 yy 13 14 15 16 17 18 19 20 21 22 23 24 . J 25 E. ANDERSON, JR., IN THE COURT OF COMMON PLEAS CHERYL ANDERSON, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, VS. NO. 99-3702 EQUITY TERM LICH and COMPANY, CIVIL ACTION - EQUITY Defendant. Deposition of: CHERYL ANDERSON Taken by: Defendant Before: Jill L. Roth Court Reporter-Notary Public Date: March 3, 2000, 1:45 p.m. Place: Law Office of Ron Turo 32 South Bedford Street Carlisle, Pennsylvania LAW OFFICE OF RON TURO RON TURD, ESQUIRE FOR - PLAINTIFFS IRWIN, McKNIOHT & HUGHES MARCUS A. McKNIGHT, ESQUIRE FOR - DEFENDANT PRESENT: David Greene James Froelich c? `~ L? 1 z< Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or fastfngers@aol.com 2 3 4 5 6 7 8 9 10 11 12 } 13 14 15 16 17 18 19 20 21 22 23 24 25 INDEX TO TESTIMONY T EXAMINATION PAGE Anderson By Mr. McKnight 3 central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or fastfngers@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between the espective parties that signing, sealing, certification nd filing are waived; and that all objections except s to the form of the question are reserved until the ime of trial. CHERYL ANDERSON, called as a witness, being y sworn, was examined and testified as follows: MR. McKNIGHT: Q. State your address. A. Cheryl Lynn Anderson, 13 Cardinal Drive, lisle. Q. And you are married to John E. Anderson, ior. Is that correct? A. Yes. Q. And when were you married to him? A. 1973. Q. And have you graduated from high school? A. Yes, I did. Q. And what high school did you graduate from? A. Boiling Springs. Q. So you've lived in the area all your life? A. Yes. Q. And how would you characterize the condition central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or fastfngers@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Of the house when you moved into it? A. Excellent. Q. Do you have any idea how old the siding was? A. No, I don't. Q. After you moved into it, then they built the golf course. Is that right? A. That's right. Q. Do you remember the year? A. I would say a good three years. I'm not sure of the exact year, no, I'm not. Q. And after those three years -- when the golf course was being built, did you go to the township? A. No. Not when it was being built, no. Q. Did you follow the approval process at all? Did you follow that in the newspaper? A. No, not really. Q. After the golf course was built and the 6th hole was built along your property line, did you begin to experience golf balls in the yard and that sort of A. Yes, we did. Q. Did you have any damage to your house from f balls? A. Yes, we have. Q. Can you specifically tell me today what part Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or fastfngers@aol.com I1- . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of your house was damaged back in the first year the golf course opened? A. I'm not sure which part, but all of it's been, so I would say that one side mostly was being zit, but I couldn't tell you exactly what was hit at what time, no. Q. So approximately how many years have you een having golf balls in your yard? A. Since the golf course has opened. Q. And do you know how long it's been? A. I would say three years maybe after we moved here. Q. So that would make a total number years of ow many? A. I'm not sure. I would have to check with he township. I believe it was 190 or 191 they might ive opened, so that would be I would say a good ten Q. Have you kept records of how many balls have come into your yard? A. No. I did for a short while, but I just get too many so I just don't do it. Q. Do you remember what year that was that you kept records? A. I would say about a year ago. -1-al rennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or fastfngers@aol.com I Q. But you don't have those records any more, 2 You threw those out? 3 A. No, I don't. 4 Q. How many golf balls total over the ten years 5 have come into your yard? 6 A. Thousands I would say. 7 Q. Thousands? 8 A. At least thousands, yes. 9 Q. Thousands? 10 A. Thousands. 11 Q. Do you know how many? 12 A. I've got about 5 or 6 now. Mr. Froelich had `.1 13 ought 3 a t that time. So I would say I had four crate 14 fulls, probably 3,000. 15 Q. Now, you say 3,000 over the course of ten 16 ears? 17 A. Um-hum. 18 Q. Do you know how many you've had on your 19 property over the last four years? 20 A. I can't tell. I wouldn't know. I just get 21 daily. 22 Q. And can you tell what damage was done to 23 our house over the last four years? 24 A. Well, each day it's more and more. 25 Q. And how about the last two years, can you Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or fastfngers@aol.com 7. ^ r 1 1 tell the last two years? y 2 A. Yeah, I would say it's daily it's being hit 3 ith the roof being hit also. 4 Q. Now, you went out and got an estimate from 5 uckey Restoration. Is that correct? 6 A. Yes, I did. 7 4• What did you tell Tuckey you wanted them to 8 do? 9 A. I told them I only wanted an estimate on the 10 damages. And he had told me they cannot just take one it little piece off, it's aluminum. So he had gave me the 12 estimate only on the damages on the damaged area, the 13 rest is our responsibility for the -- it's not damaged , 14 ut you can't replace some and not -- I only wanted the 15 damaged area replaced. 16 Q. Now, I'm not quite understanding what you're 17 talking about here. You've got a job price exterior 18 estimate of $5,500. What is that supposed to be? 19 A. This is the damaged area, all our siding 20 that has to be replaced. 21 Q. What is option 1? 22 A. That is the other side of the house that has 23 n ot been hit. 24 Q. So option 1 really doesn't have anything to J 25 d o with this case? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or fastfngers@aol.com .J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Right. Q. So the amount that you claim is damaged ased on this would be -- A. Right. Q. -- what's called the exterior. And the total price is $5,500. Is that correct? A. That's correct. Q. Did you ever make any complaints to the township? A. Yes, I did. Q. And when was that? A. It's probably been a couple years. Now I call back. Q. How many is a couple, two, three? A. Maybe about -- maybe three years, two years. I'm not sure. Q. Two or three years ago? A. Right. Q. Do you know who you spoke to? A. No, the lady that answered, and I told her what was going on. Q. And did you call once or more than once? A. I called twice. Q. Were they calls right after another or did +ou wait a month? central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or fastfngers@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 w.?1 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No, it was a while later that I called back en it was continued to be hit before we came to Mr. ro. MR. McKNIGHT: Those are all the questions I ve. MR. TURD: Okay. (Whereupon, the deposition was concluded at 1.53 p.m.) Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or fastfngers@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EALTH OF PENNSYLVANIA ) SS. OF CUMBERLAND ) I, JILL L. ROTH, a Court Reporter-Notary ublic authorized to administer oaths and take epositions in the trial of causes, and having an ffice in Carlisle, Pennsylvania, do hereby certify hat the foregoing is the testimony of CHERYL ANDERSON. I further certify that before the taking of aid deposition the witness was duly sworn; that the uestions and answers were taken down stenotype by the aid Reporter-Notary, approved and agreed to, and fterwards reduced to computer printout under the irection of said Reporter. I further certify that the proceedings and vidence are contained fully and accurately in the otes taken by me on the within deposition, and that his copy is a correct transcript of the same. In testimony whereof, I have hereunto ascribed my hand this 21st day of March, 2000. NOW'AI SE' 6tar fit , Public Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or fastfngers@aol.com ri 1 22 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 E. ANDERSON, JR., IN THE COURT OF COMMON PLEAS CHERYL ANDERSON, CUMBERLAND COUNTY,PENNSYLVANIA Plaintiffs, VS. NO. 99-3702 EQUITY TERM LICH and COMPANY, CIVIL ACTION - EQUITY Defendant. ORIGINAL Deposition of: JOHN E. ANDERSON, JR. Taken by: Defendant Before: Jill L. Roth Court Reporter-Notary Public Date: March 3, 2000, 1:32 p.m. Place: Law Office of Ron Turo 32 South Bedford Street Carlisle, Pennsylvania PEARANCES C7 LAW OFFICE OF RON TURO -T) RON TURD, ESQUIRE FOR - PLAINTIFFS IRWIN, MCKNIGHT & HUGHES i MARCUS A. MCKNIGHT, ESQUIRE FOR - DEFENDANT PRESENT: David Greene James Froelich rerinsyivania court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INDEX TO TESTIMONY ENT EXAMINATION PAGE Anderson, Jr. By Mr. McKnight 3 central Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. JOHN E. ANDERSON, JR., called as a witness, being duly sworn, was examined and testified as follows: BY MR. McKNIGHT: Q. We're here for the deposition of John E. Anderson, Junior and Cheryl Anderson. I'll first make a couple of comments to both of you. The intent here today is to make sure we understand the issues and your perspective on them. If I ask you questions that you're not sure of, you're not sure what I'm talking about, or for some reason I garble my transmission, just ask me to repeat the question. If at any time you need to stop for one reason or another, you can do that. You can do that. You can consult with your lawyer or you can ask us to leave, and we'll go somewhere or whatever. The point is, you can discuss issues with your lawyer if you wish Central Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com / 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 o. We'll start with Mr. Anderson. State your 11 name, please. A. John Edward Anderson, Junior. Q. And your address. A. 13 Cardinal Drive, Carlisle, PA. Q. And how old are you, sir? A. 47. Q. And how far have you gone in school? A. Graduated. Q. From what high school? A. South Middleton. Q. So you've been in the area all your life ;ically. Is that correct? A. Pretty much, yeah. Q. Have you been in the military at all? A. No. Q. What do you do for a living, sir? A. Drive truck. Q. Who do you drive for? A. Sygma Network. Q. Are they located in the area or where's it headquarters? A. Well, their headquarters is Columbus, Ohio, the center I work out of is Harrisburg, tencral Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngersgaol.com 4 -J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ennsylvania. Q. How long have you lived on your property at ardinal Drive? A. Since January of 188. Q. And you looked to your wife Cheryl. CHERYL ANDERSON: It was January 30th. Y MR. McKNIGHT: Q. If you don't know the answer, just say you on't know or you're not sure, because I've got to take ou one at a time. So January of 188. Is that correct? A. That's correct. Q. So you've been there 12 years? A. Yes. Q. Just across the 12-year anniversary. When )u bought the property, was there a golf course next the property in 1988? A. No. Q. And were you aware then of the announced ans to build a golf course? A. No. Q. You didn't follow the plans at all as the ans went through the township and got township proval? A. No, I didn't. Central Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And to the best of your knowledge, your wife didn't either, she didn't discuss that issue with you? A. I believe she did follow that some, yeah. Q. She did follow it some. Did you go to any township meetings or take part in any of those? A. No, I didn't. Q. Do you know if your wife did? A. No, she didn't. Q. So you were there while the golf course was constructed. Is that correct? A. That's correct. Q. And when was the golf course completed as best as you can remember? A. I'm really not sure, to be honest with you. Q. In 1988 when you purchased the house, what kind of condition was it in? A. I would say it was in excellent condition. Q. Do you know how old it was? A. I believe it was built in 172. Q. So it would have been about six years old at that point. MR. TURD: 16. BY MR. McKNIGHT: Q. 16 years. So at that point, do you know if that was the original siding still on the house? Central Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com 7 1 A. I don't know. 2 Q. No indication that siding had been replaced 3 shortly before you bought it? 4 A. No. I believe they had replaced like the 5 eve covering with aluminum. 6 Q. So what kind of siding was the house when 7 you bought it? 8 A. Aluminum. 9 Q. And is the same siding still on the house? 10 A. Yes. 11 Q. During the years that you've owned the 12 house, have you done anything to replace or maintain 13 the siding? 14 A. No. 15 Q. Now, after the golf course was built, 16 whenever that was, did you have any problems with golf 17 alls in your yard? 18 A. It wasn't too long after it was completed, 19 es, we did start to have problems with golf balls in 20 the yard. 21 Q. And what sort of problems were they? 22 A. What sort of problems? 23 Q. Um-hum. 24 A. Golf balls coming in the backyard and 25 hitting the house; had a broken car windshield from Central Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com .,,1) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ne; and golfers coming in after the golf balls. Q. Now, was this immediately after the golf ourse opened that these things began to happen or did t get -- what happened? A. Yeah, I believe it was pretty much nmediately after they started playing back there. Q. So when this began happening, did you call he township or did you go to the golf course? What id you do? A. My wife called the township, but I didn't. Q. Do you know when that was? A. No, I don't. Q. Do you know how many times she contacted the A. I think it was a couple times, and they told ar that there was nothing they could do about it. I !lieve they said it was a civil suit -- civil. Q. Do you remember the last time when -- you !ver contacted the township yourself. Is that rrect? A. Myself, no. Q. Never went to any meetings about this issue th the township? A. No. Q. Now, have you kept any sort of records of Central Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ie number of golf balls that have come into your yard? A. No written records. Q. No written records? A. No. But I can tell you that we had at least thousand golf balls we've picked up. Q. Over what period of time? A. I guess since they started playing back Q. And you don't know when that was? A. No, I'm not sure when. Q. Were you aware that last year the owner of the golf course changed the tees around to try to minimize the golf balls coming onto your property? Were you aware that that was done? A. Yes. Q. Are you aware of exactly what was accomplished or what was done by that plan? A. No, I'm not aware exactly what was done, other than I believe they moved the tees ahead. Q. I'll show you a diagram that we'll mark later that has been done by a recent survey of Pecora Engineering. And I'll point to your property: John, Junior and Cheryl L. Anderson. And you see three squares back here, one's a square and two are rectangles. Do you see those? Central Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. Q. Those are representatives of the tees for the hole which is next to your property which is the 6 tee. Okay? A. Um-hum. Q. Now the plan is to move those tees, especially the one that's the rear tee over to the ,ight so that the golfers would be a little bit further way from the property line. Is that what you've seen hem doing back there? A. Yes. Q. Now, since they did that towards the end of ast season, have you noticed any lessening in the amber of balls coming on to your property? A. Yes, I believe they have been a few less. Q. Now, since you started this litigation with ?e court and filed this action, have you kept accurate cord of how many balls have come onto your yard? A. My wife has. Q. And are you aware of what those numbers are? you talk to her about that? A. Yeah. Q. Do you have any personal knowledge today of it those numbers are? A. No, I don't right now. ,-?i n,....__.., Cent GY--- emu wurc reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com 1 I Q. But they're not written down anywhere by you 2 or by her. Is that correct? 3 A. Yeah, I believe my wife has written them 4 down. 5 Q. So she has a record of the number of balls 6 coming into the yard? 7 A. Yeah. 8 MR. MCKNIGHT: Off the record. 9 (Discussion held off the record.) 10 BY MR. McKNIGHT: 11 Q. Now, when was it that there was damage to an 12 automobile, do you remember the year? 13 A. No, I don't remember the year. It was 14 shortly after -- a year or so after the course opened I 15 b elieve. 16 Q. So it's more than four years ago. Is that 17 correct? 18 A. Yes. 19 Q. And the damage to your -- when did you first 20 notice there was some damage to your siding? 21 A. Shortly after the golf course opened up. 22 Q. Can you tell us today specifically what part 23 o f the damage was done in a particular year? 24 A. No, I can't tell you, other than golf balls 25 h ave been bouncing off the side of the house and Central Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com .-1 1.,/ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 )utting dents in it. Q. But again you haven't kept track of when the famage was done? A. No, I haven't kept exact records, no. Q. Now, my understanding is you've gone to uckey Restoration and had an estimate done. Is that orrect? A. Yes. Q. Now, they're apparently are two prices. Is Iat correct? A. That's correct. Q. Would you explain what it is that you told ickey's you wanted them to do? A. Well, actually my wife had handled that. I is at work whenever they... Q. So you don't have any personal knowledge )out this estimate or how they came up with it? A. Not other than what I read here. I didn't !t a chance to talk to the gentleman when he come out give his estimate. MR. McKNIGHT: Those are all the questions have of this witness. MR. TURD: I have nothing for Mr. Anderson. (Whereupon, the deposition was concluded at 1:45 p.m.) Central Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EALTH OF PENNSYLVANIA ) SS. OF CUMBERLAND ) I, JILL L. ROTH, a Court Reporter-Notary ublic authorized to administer oaths and take epositions in the trial of causes, and having an ffice in Carlisle, Pennsylvania, do hereby certify hat the foregoing is the testimony of JOHN ANDERSON, I further certify that before the taking of ;aid deposition the witness was duly sworn; that the )uestions and answers were taken down stenotype by the said Reporter-Notary, approved and agreed to, and .fterwards reduced to computer printout under the .irection of said Reporter. I further certify that the proceedings and vidence are contained fully and accurately in the otes taken by me on the within deposition, and that his copy is a correct transcript of the same. In testimony whereof, I have hereunto nscribed my hand this 21st day of March, 2000. Central Pennsylvania Court Reporting Services (717) 258-3657 or (800) 863-3657 or fastfngers@aol.com JOHN E. ANDERSON, IN THE COURT OF COMMON PLEAS OF JR., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - EQUITY FROELICH AND COMPANY, INC., Defendant NO. 99-3702 CIVIL TERM ORDER OF COURT AND NOW, this V' day of December, 1999, upon consideration of the attached letter from Marcus A. McKnight, III, Esq., attorney for Defendant, indicating that the parties are hying to reach an amicable conclusion of this matter, the nonjury trial previously scheduled for December 2, 1999, is continued generally. COUNSEL ARE requested to contact the court if they desire a rescheduled trial in this matter. Ron Turo, Esq. 32 S. Bedford Street Carlisle, PA 17013 Attorney for Plaintiff Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant BY THE COURT, •Wesley Oler? t; : w ?; . c, .? ??a- ??-C•?C 1 ?lo??f?t . ?S. ti' :rc LAW OFFICES IRWIN McKNIGHT & HUGHES ROGER B. IRIVIN MARCUS A. AkKNIGIIT 1// JAMES D. HUGHES REBECCA R. RUGIIES MARK D. SCIIWART7 DOUGL.4SG..MI1.LF.R WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET CARLISLE, PENNSYLVANIA 17013-3222 (717) 249-2353 FAX (717) 249.6354 E-MAIL: IMHLAWO SUPERNET COM IIAROLDS. IRWIN (1925-1977) IMROLDS IRWIN JR. (1954-1986) IRIVIN IRWIN&IRIVIN (1956.1986) IRIVIN IRWIN&AkKN1GHT (19861991) IRWIN, AIrKNICNT & IIUGHES (1991. 1 December I, 1999 The Honorable J. Wesley Oler Court of Common Pleas of Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: John E. Anderson, Jr. and Cheryl Anderson v. Froelich & Company, Inc. 99-3702 Dear Judge Oler: By agreement of the parties, the Equity Trial of this case scheduled for Thursday, December 2, 1999, at 9:30 a.m. should be continued generally. The purpose of this continuance is to give the parties an opportunity to work out the details of a remedy. Very truly yours, WIN, Mc Aigh arcus . Mc sq. MAM/min cc: Ron Turo, Esq. Jim Froelich, President Froelich & Company, Inc. OFD \ 1 .. JOHN E. ANDERSON, JR., IN THE COURT OF COMMON PLEAS OF and CHERYL ANDERSON, Plaintiffs V. CIVIL ACTION - EQUITY FROELICH AND COMPANY, INC., Defendant No. 99-3702 EQUITY TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the chambers of Judge Oler on Wednesday, February 16, 2000. Present on behalf of the Plaintiffs was Ron Turo, Esquire. Present on behalf of the Defendant was Marcus A. McKnight, III, Esquire. This is a private nuisance/trespass action for legal and equitable relief arising out of alleged intrusions on Plaintiffs' property by golf balls emanating from Defendant's property. Defenses include the contention that Defendant is not responsible for errant shots by golfers upon its premises. It is anticipated that a deposition of Plaintiffs will be conducted prior to the trial. This will be a nonjury trial with an estimated duration of one day. Trial has been scheduled for Wednesday, March 22, 2000, at 9:30 a.m. With respect to settlement negotiations, the parties had apparently almost reached a resolution of the matter, but evidently negotiations have at least temporarily not produced a final resolution. Ron Turo, Esquire For the Plaintiffs Marcus A. McKnight, III, Esquire For the Defendants I?e.?.?L_ ? dJ? o d wcy By the Court, . JOHN E. ANDERSON, JR., and CHERYL ANDERSON, Plaintiffs V. FROELICH AND COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY No. 99-3702 EQUITY TERM ORDER OF COURT AND NOW, this 22nd day of March, 2000, upon consideration of Plaintiffs, complaint, and following a nonjury equity trial, the record is declared closed, and the matter is taken under advisement. Ron Turo, Esquire For the Plaintiffs Marcus A. McKnight, III, Esquire For the Defendants wcy _n n Z By the Court, JOHN E. ANDERSON, JR., and CHERYL ANDERSON, Plaintiffs V. FROELICH AND COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-3702 CIVIL TERM ORDER OF COURT AND NOW, this q "day of April, 2000, upon consideration of Defendant's Motion for Post-Trial Relief and Exceptions to Decree Nisi, oral argument is scheduled for Monday, April 17, 2000, at 2:45 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Briefs are due from counsel three days prior to the argument. BY THE COURT, Ron Turo, Esq. 32 S. Bedford Street Carlisle, PA 17013 Attorney for Plaintiff Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant J. esley Oler, Jr, J. . ? L .y \ CJ :rc JOHN E. ANDERSON, JR. and CHERYL ANDERSON, PLAINTIFFS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-3702 EQUITY TERM VS. CIVIL ACTION - EQUITY FROELICH AND COMPANY, INC., DEFENDANT MOTION FOR POST-TRIAL RELIEF AND EXCEPTIONS TO DECREE NISI AND NOW, this 5th day of April 2000, comes the defendant, FROELICH and COMPANY, INC., by its attomeys, Irwin, McKnight and Hughes, and makes the following Motion for Post Trial Relief and takes Exception to the Decree Nisi of the Court: The defendant takes exception to the Findings of Fact numbered nine (9) and ten (10). The plaintiffs submitted an estimate by Tuckey Restoration, Inc. in the amount of Five Thousand Five Hundred and no/100 ($5,500.00) Dollars to repair and replace the damaged siding. The plaintiffs also sought replacement of the siding of the undamaged portion of their home. There is no basis for the defendant to pay the sum of Three Thousand Eight Hundred and no/100 ($3,500.00) Dollars to replace siding not damaged by golf balls. The plaintiffs had stated at trial that they would be responsible for the costs of replacement of the undamaged siding. 2. The defendant takes exception to Findings of Fact numbered fourteen (14) and Conclusions of Law numbered one (1) which finds that the use of defendant's property constitutes a private nuisance with respect to the plaintiffs' property. Such finding and conclusion of law is contrary to law and must be set aside or modified. 3. The defendant seeks a new trial or modification of the Decree Nisi numbered one (1) which prohibits the frequent intrusion of golf balls upon plaintiffs' property from the sixth (6) tee. The defendant believes that the number of golf balls can be reduced but may never be completely eliminated. The language involving frequent intrusion should be modified to provide that the defendant will install measures at the sixth (6) tee designed to reduce the ability of golfers to hit balls from the sixth (6) tee onto the property of the plaintiff. 4. The defendant seeks a new trial or modification of the Decree Nisi numbered two (2) which granted the award of damages to the plaintiffs. The plaintiffs failed to document any times or dates of damage done to their property. Much of the damage is precluded by the statute of limitation which is two (2) years. The defendant is not the legal cause of the invasion of the plaintiffs' land. Respectfully submitted, IRWIN, McKNIGHT & BY: ARC'US A. Mc"NIGH ESQUIRE Atto for defendant, Fro and Company, Inc. 60 West Pomfret Str Carlisle, Pennsylvania 1701 (717) 249-2353 Supreme Court I.D. No. 25476 Date: April 5, 2000 2 JOHN E. ANDERSON, JR. and CHERYL ANDERSON, PLAINTIFFS Vs. FROELICH AND COMPANY, INC., DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-3702 EQUITY TERM CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE 1, Marcus A. McKnight, 111, Esquire, hereby certify that a copy of attached Motion for Post Trial Relief and Exceptions to Decree Nisi was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Ron Turo, Esquire TURO LAW OFFICES 32 South Bedford Street Carlisle, PA 17013 IRWIN, MCKNIGHT & HUGHES By: Ma us A. Melknight, 60 Pomfret Street Carlisle, 013 (717) 249-2353 Supreme Court I.D. No. Date: April 5, 2000 3 r ?> >- ?•: - r•; {: I "l f (_ '?fJ n .r ? ? (_: (J ?LIr. ?L Y .Y y' VY Y ??? e'St! a r rt i r? t ?' s•6 df if ' Y 4 ii ?i? aT 1 4Y ?t ; ?b'Y T ?y lfr a\ Jt fit' -'A 't r t ,y? i Sr x?. lJ? 1 \ ?v`A Y F 1 \ rS,i€i u Ni s?AyK. A?d?? x 1?xr9??{a b? 1.ia 4 , a p r, vt 4A tt+ J F rc dt+? r -vr Iwo Cl py ??!7? tt? ! N r, w F4Wppca .. ' !i (r , Ax VRi rWi kc C?i;,y v er ?f r?r tyy ?i r J r•l?y Tb ^tC.r v. ? a t•d?v V d A ru r r JOHN E. ANDERSON, JR., and : IN THE COURT OF COMMON PLEAS OF CHERYL ANDERSON, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS CIVIL ACTION - EQUITY V. FROELICH & COMPANY, INC., DEFENDANT NO. 99-3702 EQUITY TERM DEFENDANT'S BRIEF IN SUPPORT OF THE MOTIONS MADE BY DEFENDANT I e?S e FOR POST-TRIAL RELIEF AND t EXCEPTIONS TO DECREE NISI F I. STATEMENT OF CASE: This case was tried before the Honorable J. Wesley Oler, Jr. on March 22, 2000. On March 27, 2000, Judge Oler entered general findings and awarded damages in the amount of Nine Thousand Three Hundred and no/100 ($9,300.00) Dollars to the Plaintiff. Defendant filed a Motion for Post-Trial Relief and Exceptions to Decree Nisi. The Defendant seeks a new trial or a reduction of the damages awarded to the plaintiffs on the basis that the Defendant is not the legal cause of the invasion on the Plaintiffs land. In the alternative, a portion of the damages awarded the Plaintiffs was to replace undamaged siding on portions of their home which did not face the Defendant's property. At trial, the Plaintiffs presented an estimate from Tuckey Restoration which has two components. The sun of Five Thousand Five Hundred and no/100 ($5,500.00) Dollars was to replace aluminum siding damaged by golf balls with new vinyl siding. The second portion was to replace siding on portions of their home which were undamaged and faced away from the golf course. At trial, Mrs. Anderson indicated that if the damaged portion were repaired, the plaintiffs would pay to replace the undamaged portion. The home of the plaintiffs is in excess of twenty (20) years old. The plaintiffs testified that they had not performed any outside maintenance on their home. The damage award should be reduced to the siding actually damaged if any damages are awarded. The more appropriate amount is $5,500.00 if damages are to be awarded to the plaintiffs. IL ARGUMENT: A. General Law Reeardina Post Trial Relief: Post trial relief is subject to Pa. Rules of Civil Procedure, Rule 227.1 which provides that the Court may: (a)(1) Order a new trial as to all or any of the issues; or (4) affirm, modify or change the decision or decree nisi; or (5) enter any other appropriate order. In cases involving a jury trial, the Pennsylvania Appellate Courts have been reluctant to permit modifications of a jury verdict. The primary remedy is anew trial if a significant change in the verdict is required. In the case of Fiorenza v. Kohn. 577 A.2d 1384 Pa.Super. (1990), the Superior Court reviewed a verdict in a non-jury trial. The court initially awarded approximately Sixteen Thousand and no/100 ($16,000.00) Dollars, and later as a result of post trial motions increased the verdict to Forty Nine Thousand Three Hundred Fifteen and 05/100 ($49,315.05) Dollars. In Fiorenza v. Kohn, Judge Hoffman held that the trial court was within its discretion to alter its initial verdict. He stated at p. 1386 In such an instance, when there is no dispute regarding the facts, and the court is fact-finder, clearly articulates its reasons for its initial erroneous assessment of damages, it would be pointless to require a new trial. In this case, the Court has acted as the finder of fact and the standard of review is whether the fact-finder committed "a clear abuse of discretion or an error of law which controlled the outcome of the case." See Fiorenza v. Kohn 1386. The Defendant contends that the Court's verdict was not adequately supported by the extensive record in this case, and that a new trial is required. However, as noted in Fiorenza, if the Court does not find that a new trial is required, it may still modify the verdict. B. Iniunction regarding the finding that Defendant was a private nuisance The Defendant agrees to be enjoined by the Court to take measures to reduce the amount of golf balls that enter the Plaintiffs' property. However, the Defendant requests this Court to modify the injunction placed upon Defendant. The Defendant believes that it can reduce the number of golf balls that enter the Plaintiffs' property, but may never completely eliminate any balls from entering. Therefore, the Defendant requests that the Court modify the language involving frequent intrusion to provide that the Defendant will install measures at the sixth (6) tee designed to reduce the ability of golfers to hit balls from the sixth (6) tee onto the Plaintiffs property. Under the language of the Decree Nisi, the meaning of frequent intrusion is vague. Defendant requests this Court to provide reasonable relief which the Defendant can meet. C. Damaees regarding the finding that Defendant was a private nuisance. In this case, the Defendant presented evidence that it is not the Defendant itself that is the cause of the golf balls hitting the Plaintiffs house. To the contrary, private individuals who hit errant shots are the cause of golf balls hitting the Plaintiffs house. Under the Restatement (Second) of Torts, "One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land" (emphasis added). Restatement (Second) of Torts § 822 (1979). In the case at bar, the Defendant's conduct did not cause the invasion of the Plaintiffs interest. The individual golfers caused the invasion of the Plaintiffs interest through hitting errant shots. Therefore, the individual golfers should be held responsible and not the Defendant. Monetary damages are not proper when imposed against a party that did not cause the harm. In this Court's Opinion and Decree Nisi, the Court noted that damages may be awarded for past hams, citing Lafferty v. Montgomery, 48 Delaware Co. 65 (1960). The holding in Lafferty is not dispositive of the case at bar because the reasoning does not apply. In Lafferty, the Court awarded damages to the Plaintiff landowner because Defendant had dumped refuse on Plaintiffs land. Id. at 66. The Plaintiff had used his land for forty-three years to dump refuse and claimed that the Defendant's dumping had deprived him of the space that Defendant's trash had consumed. Id. at 67. As a result of the Defendant's trash being on Plaintiffs property, the Plaintiff was forced to dump his refuse elsewhere at a cost of $2,317.50. Id. The Court awarded damages in the amount that Plaintiff was forced to spend in dumping his trash elsewhere. Id. In Lafferty, the damages were measured by the loss of use and enjoyment of the land. In this case, the damages are not measured by a loss of use or enjoyment of the land. The amount of $9,300.00 is not representative of the loss of use or enjoyment. This Court should award only the amount of loss of use and enjoyment by the Plaintiffs in this case. Because the Plaintiffs have not adequately proven the financial amount of their loss and enjoyment, the Court should not award any damages. A private nuisance should be enforced only when the invasion is both intentional and unreasonable. Weishner v. Washineton County Golf and Country Club, 11 D. & C.3d 458 (Washington City. 1979). In Weishner, the Plaintiff brought an action against the Defendant because golf balls from errant shots of players on the Defendant's course had inflicted damage on the Plaintiffs property. Id. at 459. The Court defined the issue as whether the Defendant should be enjoined from using the hole on the golf course that was adjacent to the Plaintiffs property. Id. The Court held that the Defendant should not be enjoined. Id. First, the Court noted that the Defendant had not used its property in an unreasonable way because the evidence showed "nothing more than the normal use of premises constructed and designed as a golf course." Id. Further, the Court noted that the Plaintiff knew of the errant shots before building his house next to the golf course. Id. at 461. Lastly, the Court pointed out that the Defendant was making a positive effort to reduce the hazard to the Plaintiffs use and enjoyment of his land. Id. The Court concluded that no injunction was necessary because the Defendant was making efforts to reduce damage, and further recommended that the Plaintiff should take steps of his own to reduce damage to his use and enjoyment. Id. This case is factually similar to Weishner. Here, the Defendant has operated for a significant time without any complaints. More importantly, the Defendant has taken steps to fix any problems that exist for the Plaintiffs. Although the Plaintiff was residing at the premises before the golf course was constructed, this fact alone should not be determinative of the outcome. Further, as in Weishner, the evidence shows "nothing more than the normal use of premises constructed and designed as a golf course" (quoting Weishner, 11 D. & C. 3d at 459), meaning that Defendant has not acted unreasonably. Like the Defendant in Weishner, the Defendant here has taken steps to minimize errant shots by golfers. Under the analysis of Weishner, Defendant should be given further opportunity to correct any problem. The two elements for a private nuisance that are applicable here are: the act be intentional and the act be unreasonable. See Restatement (Second) of Torts § 822 (1979). Like in Weishner, the operation of the golf course is not unreasonable. Therefore, the elements for private nuisance have not been satisfied. Accordingly, the Court should not award damages in its finding of a private nuisance. In the alternative to denying all damages, the Court should award damages limited to Five Thousand Five Hundred and no/100 ($5,500.00) Dollars. This figure represents the amount that the Plaintiffs presented that was necessary to replace the damaged siding. The difference between this amount and the $9,300 is the amount that would cost to replace siding on portions of the home which were undamaged by golf balls and face away from the golf course. As the Court in Lafferty stated: "Equity will endeavor to make the plaintiff whole, but not to enrich him." Lafferty, 48 Delaware Co. at 67. In this case, requiring the Defendant to pay $9,300 would enrich the Plaintiff. Further, it would not be proper to require Defendant to pay damages for the replacement of siding it did not even allegedly damage. The Plaintiffs have not performed any outside maintenance on their house. Therefore, returning the house to its condition before any golf balls damaged the house would not be possible even with the award of $9,300. Because it is not possible to return the Plaintiffs' house to its condition before any golf balls damaged the house the Defendant should only be forced to pay $5,500, if any. M. CONCLUSION: The verdict of the Court in the amount of Nine Thousand Three Hundred and no/100 ($9,300.00) Dollars should be modified by the Court, or in the alternative, a new trial granted. The Court should clarify the injunction to be placed on Defendant, and should not award damages to the Plaintiff, or in the alternative, should modify the amount of damages. IRWIN, McKNIGHT & HUGHES 60 West omfret Street Carlisl , Pennsylvania 013 (717)2 - 353 Attorney for Defendant, Froelich & Company, Inc. Date: April 14, 2000 DOCSIB R IEFS/MAYA PPL E JOHN E. ANDERSON, JR., and : IN THE COURT OF COMMON PLEAS OF CHERYL ANDERSON, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. FROELICH & COMPANY, INC. DEFENDANT CIVIL ACTION - EQUITY NO. 99-3702 EQUITY TERM CERTIFICATE OF SERVICE 1, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Defendant's Brief in Support of the Motions Made by Defendant for Post-Trial Relief and Exceptions to Decree Nisi was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Ron Turo, Esquire TURD LAW OFFICES 32 South Bedford Street Carlisle, PA 17013 IRWIN, McKNIGHT & HUGHES 1< By: Mar . McKnight, III, 6 est Pomfret Street Cqrlisle, PA 17013 (71 353 Supreme Court I.D. No. 25476 Date: April 14, 2000 f ? r' y* f ? 1 Y. t S^/S f ?.J I YfYfJJA.II Y 1 r YY! y ' 9 i ?• jt t r t Y rde Giix u r. a rr r r}yy}+?+?? 1al i1.}r ii t l 0 'M13Rr.{ '7 ? 1 ryC'(yy1 J .Yi' 4?1 rr 4nrMts t '(4 ir3b '4, h??{ I?W ? y (: f i Yyr?WT?6yasy{Y ? ?4?G ?'r%i4 7•? r Y c ?. 1hW' yua ?.?4Yc?•i n ?-?,a ~s ? ^{ ri ?rAY3l•? *Y%?:i star °A?s.;? Y?l t+'f? .:r I ? -•.1 ? 5 r a k?Y 4` yeea '?i yk . u ?'s e W ( y r (; { ? P ? LY .711' 1q, ?.{ f y i tA` 'J'tY?:h'r yr'?r ? t N e r ? J$'g ?t*?'W J?fl ? ?i y., a ? ? I v ? 1 Ap ?t?'('9 a .,r53 i ? ? Ca ? fY ?'3ri4xJf qF . 'y K? T Y ' ?.{ I S? m p f'?4 •??o`MLa Ri s? < e ? ? ? , rA rnF? ' ? oo y I t ? } q R?? R ? X ? ' ? ? y W ? fi ? ?Y g [pp? 5 I 1 ? ??'r i? 3 .4t r >:fy' r fpp?{ I i ? Ll F a' ° i? ?' 1 1 r?s z `a' P4? Gi ? / r . q e y e, Y} }iti• M i Jh y ry P s + ? P X' ? ? I T„rd dv t r VIA f4 J 11 y Y K fiq ??£ t ? ?, >•x 1r _ F ?i+>? j:;r r>i? r aayi iiy'RS rk? ? 'T ?'"?° F ?Y2 iY h y sy { t ( r t 4 V g T ? e? FEE fl P??? ?h ? ti tc° Y ! ,.r i ya .y ! ?,o jxyY jl r ° ? i 4r 1'?'{rf t`3t ?{td ? ? e•£°c r?ry? ! f 1 1 r .,f; ? YSt Y r..+r yi '3 J Mf Y ? 5 Law OFFICES awriz, ? c. ?n xC C? r?ler ?i?D. APR.' ? n,! y rM1 i Ad'i.Md.Y.?u? f ? y t,y JOHN E. ANDERSON, IN THE COURT OF COMMON PLEAS OF JR., and CHERYL CUMBERLAND COUNTY, PENNSYLVANIA ANDERSON, Plaintiffs V. CIVIL ACTION - EQUITY FROELICH AND COMPANY, INC., Defendant NO. 99-3702 EQUITY TERM ORDER OF COURT AND NOW, this rb day of April, 2000, upon consideration of Defendant's Motion for Post-Trial Relief and Exceptions to Decree Nisi, and following oral argument held on April 17, 2000, Defendant's motion for post-trial relief is denied and, for the reasons stated in the Adjudication dated March 27, 2000, the Decree Nisi dated March 27, 2000, is entered as a Final Decree. lion Turo,tsq. David Greene, Esq. 28 S. Pitt Street Carlisle, PA 17013 Attorneys for Plaintiff Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant J. L V-i5,-oo RKS :rc BY THE COURT, JOHN E. ANDERSON, JR., and CHERYL ANDERSON, Plaintiffs V. MAYAPPLE GOLF LINKS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-3702 EQUITY TERM AND NOW, this 12u' day of September, 2000, upon consideration of Plaintiffs' Petition for Contempt, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE at a hearing scheduled for Tuesday, September 26, 2000, at 8:45 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Ron Turo, Esq. 28 S. Pitt Street Carlisle, PA 17013 Attorney for Plaintiffs Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant Ca.e,i 13, et) :rc BY THE COURT, JOHN E. ANDERSON, JR, and CHERYLANDERSON, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 CIVIL TERM V. MAYAPPLE GOLF LINKS, INC., Defendant CIVIL ACTION - IN EQUITY ORDER OF COURT AND NOW, this day of , 2000, upon receipt and review of the Petition for hearing, a hearing is scheduled on the day of 2000 at .m. in Courtroom No. of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, J. Wesley Oler, Jr., J. JOHN E. ANDERSON, JR. and CHERYLANDERSON, Plaintiffs V. MAYAPPLE GOLF LINKS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 EQUITY TERM CIVIL ACTION - IN EQUITY PETITION FOR CONTEMPT 1. The Plaintiffs are property owners in South Middleton Township, Cumberland County, Pennsylvania, who live immediately adjacent to the Mayapple Golf Course also located in South Middleton Township, Cumberland County, Pennsylvania. 2. The Defendants are the owners of said golf course. 3. On March 27, 2000 the Honorable J. Wesley Oler, Jr. did issue a Decree Nisi enjoining the Defendants "within four (4) months from the date of this decree from continuing to use this property in a manner which results in a frequent intrusion of golf balls upon Plaintiffs property from the 6t' tee". 4. Since the date of this Court's Order of March 27, 2000 and continuing until the date of this Petition, golf balls have continued to intrude upon Plaintiffs property in violation of this Court's Order. 5. The Plaintiffs specifically allege that over forty (40) golf balls hit their home or land in their property during the month of August 2000 and seventeen (17) balls came to the property in four days from August 20 through August 25, 2000. 6. On September 5, 2000 Plaintiff John E. Anderson, Jr. was working outside of his home on his driveway when he was almost struck by a golf ball at that time and place. 7. The Plaintiffs have been unable to ascertain any efforts by the Defendants to comply with this Court's Order that would stop the frequent intrusion of golf balls upon their property. 8. The Plaintiffs planned to have their siding replaced on or about September 18, 2000 but now are unsure as whether they should based on the Defendant's failure to stop the golf balls from intruding upon their property. 9. This Court has equitable power to enjoin the Defendants from any further intrusion of golf balls upon their property and should now do so. WHEREFORE, for all the above reasons, Plaintiffs request this Court to find Defendants in Contempt and, after so finding, order the following: 1. That the Defendants immediately stop the use of the 6t' tee and hole until no further golf balls intrude upon Plaintiffs property. 2. That the Defendants pay reasonable attorney fees to the Plaintiffs for the preparation, filing and litigation of this Petition for Contempt. 3. That the Court order any and all other relief that it is just and appropriate. Respectfully Submitted TURO LAW OFFICES 917100 Date Ron Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that t served a true and correct copy of the Petition for Contempt upon Marcus A. McKnight, III, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the day of 2000, from Carlisle, Pennsylvania, addressed as follows: Marcus A. McKnight, III, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 TURO LAW OFFICES on Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs ?- • iJ JOHN E. ANDERSON, JR. and CHERYL ANDERSON, Plaintiffs V. FROELICH AND COMPANY, INC Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-3702 EQUITY TERM ORDER OF COURT AND NOW, this 26th day of September, 2000, upon consideration of Plaintiffs' Petition to an agreement reached in open court E. Anderson, Jr. and Cheryl Anderson, Company, Inc., through their respecti and Marcus A. McKnight, III, Esquire, as follows: for Contempt, and pursuant between the Plaintiffs, John and Defendant, Froelich and ve counsel, Ron Turo, Esquire it is ordered and directed 1. Within two weeks of today's date Defendant will erect a 10-foot fence in the area of the tee in question in this case, with a view toward preventing the intrusion of golf balls upon Plaintiffs' property from the tee. 2. Plaintiffs will contact Defendant on each occasion that they notice a golf ball intruding upon their property from the golf course. 3. The hearing on Plaintiffs' Petition for Contempt is continued until Thursday, November 9, 2000, at 1:30 p.m., at which time all of the issues raised in Plaintiffs' Petition for Contempt will be considered. By the Court, J. esley 0 Jr., J Opp 16-9-00 RKg .. ,.'li . fl V ,,. dui';,: ._ r-'ter ??.??_.? .. Ron Turo, Esquire For the Plaintiffs Marcus A. McKnight, III, Esquire For the Defendant it JOHN E. ANDERSON, JR. and CHERYL ANDERSON, Plaintiffs V. FROELICH & COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 CIVIL TERM CIVIL ACTION - IN EQUITY ANSWER TO NEW MATTER 1. No answer required. 2. Denied as stated and proof of the same is demanded. 3. Denied as stated and proof of the same is demanded. 4. Denied as stated and proof of the same is demanded. 5. The allegations in this paragraph are legal conclusions to which no response of pleading is required. WHEREFORE, Plaintiffs, John E. Anderson, Jr. and Cheryl Anderson respectfully request this Honorable Court to grant the relief sought in their Petition for Contempt. Respectfully TURO LAW ll'G 16)117 Date P South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Plaintiffs Answer to Defendant Froelich & Company, Inc., New Matter upon Marcus A. McKnight, III, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the / -? day of October, 2000, from Carlisle, Pennsylvania, addressed as follows: Marcus A. McKnight, III, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 TURO LAW OFFICES V?4 Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff -; , _:, ' ? - _ ?_, 'S JOHN E. ANDERSON, JR., and CHERYL ANDERSON, Plaintiffs V. FROELICH AND COMPANY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-3702 EQUITY TERM CIVIL ACTION - IN EQUITY IN RE: CONTEMPT ORDER OF COURT AND NOW, this 9th day of November, 2000, upon consideration of Plaintiffs' Petition for Contempt, and following a hearing held on November 9, 2000, and the Court finding that Plaintiffs have presented sufficient evidence to support issuance of a citation for contempt upon Defendant, a citation for contempt is issued upon Defendant. THE COURT employing the five-step contempt procedure, a final hearing is scheduled for Thursday, December 28, 2000, at 3:00 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Ron Turo, Esquire Attorney for Plaintiffs Marcus A. McKnight, III, Esquire Attorney for Defendant Sheriff O Jr(.?J J. -r - C 1I -/3 -0 ali R ?13 srs i. i 1; ?.?ir.' ? .,iA I i? i'c?Jr;l t!U:?: h JOHN E. ANDERSON, JR. and CHERYL ANDERSON, PLAINTIFFS V. FROELICH AND COMPANY, INC., DEFENDANT : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 CIVIL TERM CIVIL ACTION - EQUITY NOTICE TO PLEAD TO: John E. Anderson, Jr. and Cheryl Anderson, and their attorney, Ron Turn, Esquire, 28 South Pitt Street, Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER TO PETITION WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. IRWIN, McKNIGHT & HUGHES BY: Marcus A. Mc ghy III, Esquire 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Supreme Court ID. No. 25476 Attorney for Defendant Froelich and Company, Inc. Date: September 22, 2000 JOHN E. ANDERSON, JR., and CHERYL ANDERSON, PLAINTIFFS V. FROELICH AND COMPANY, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3702 CIVIL TERM CIVIL ACTION - EQUITY ANSWER TO PETITION FOR CONTEMPT WITH NEW MATTER AND NOW, this 22nd day of September 2000, comes the defendant by its attorneys, Irwin, McKnight & Hughes, and makes the following Answer to Petition for Contempt with New Matter: I. The averments of fact contained in paragraph one (1) of the Petition are admitted. 2. The averments of fact contained in paragraph two (2) of the Petition are specifically denied. On the contrary, the defendant is not Mayapple Golf Links, Inc., but is Froelich and Company, Inc., which is the owner of the golf course which is the subject of this litigation. 3. The averments of fact contained in paragraph three (3) of the Petition are admitted. 2 4. The averments of fact contained in paragraph four (4) of the Petition are specifically denied. On the contrary, the defendant has taken measures which have significantly reduced the number of golf balls hit onto the property of the plaintiffs. The plaintiffs never notified the defendant of any continuing problem. Proof thereof is demanded from the plaintiffs. 5. The averments of fact contained in paragraph five (5) of the Petition are specifically denied. On the contrary, at no time since March 27, 2000, have the plaintiffs ever notified the defendant of any golf balls hit onto their property from the golf course until the defendant received the Petition for Contempt. Proof thereof is demanded from the plaintiffs. 6. The averments of fact contained in paragraph six (6) of the Petition are specifically denied. On the contrary, the defendant was not notified on September 5, 2000, of any incident with a golf ball by the Andersons nor was any notice given thereafter until the filing of the Petition for Contempt. 7. The averments of fact contained in paragraph seven (7) of the Petition are specifically denied. On the contrary, the defendant has installed a line of trees adjacent to the sixth (6th) tee area. Those trees have significantly reduced the ability of a golfer to hit a poor shot onto the property of the plaintiffs. 8. The averments of fact contained in paragraph eight (8) of the Petition are beyond the knowledge of the defendant. They are therefore denied and proof thereof is demanded. 9. The averments of fact contained in paragraph nine (9) of the Petition are specifically denied. On the contrary, the plaintiffs have given no notice of a continuing problem until this Petition was filed. The equitable relief requested is not appropriate in this case. WHEREFORE, the defendant requests that the relief sought in the Petition for Contempt be denied and the Petition be dismissed. NEW MATTER AND NOW, this 22nd day of September 2000, comes the defendant by its attorneys, Irwin, McKnight & Hughes, and makes the following New Matter to the Petition for Contempt filed by the plaintiffs. l0. The averments of fact contained in the Answers to the Petition for Contempt in paragraphs one (1) through (9) are hereby incorporated by reference and are made a part of this New Matter. Following the entry of the Court's Decree Nisi on March 27, 2000, the defendant installed a row of large trees along the western edge of the sixth (6th) tee of the golf course. 12. The newly installed line of trees have significantly reduced the opportunity for golfers using the golf course to hit poor shorts onto the property of the plaintiffs. 4 13. At no time since March 27, 2000, have the plaintiffs directly or through counsel notified the defendant of any continuing problem. 14. The plaintiffs are now estopped from seeking contempt when the defendant had no opportunity to investigate or seek other measures in response to notice from the plaintiffs. WHEREFORE, the defendant requests that the relief sought in the Petition for Contempt be denied and the Petition be dismissed. Respectfully submitted, IRWIN, MCKNIGHT & HUGHES By: Marcus A. McKnighLk ,squire 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for defendant Date: September 22, 2000 VERIFICATION The foregoing Answer to Petition with New Matter is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unswom falsification to authorities. "Zvs J MES ROELICH Date: Sept. 22 , 2000 JOHN E. ANDERSON, JR. and : IN THE COURT OF COMMON PLEAS OF CHERYL ANDERSON, PLAINTIFFS : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 99-3702 CIVIL TERM FROELICH AND COMPANY, INC., CIVIL ACTION - EQUITY DEFENDANT CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Answer to Petition for Contempt with New Matter was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Ron Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 IRWIN, McKNIGHT & HUGHES By: Marcus A. Mc ht, III, Esquire 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: September 22, 2000 CL Q) ?>- ?:., L. ?_ _J f ?? _ 1_?s -' ? ' ??. , ]'J X11 C: [A ? .. C_ '?a ? ? ?.! :., ?J h i{ / ?• .; a t1-t• s ? r iR 1.4 t r.%yf ti a ?, nY` ?,L yi iM.`G ,r CSI aid u4? ? a AI?.y. t0 i I',;f4 f'?h ?4f?IA ?M}?jr R ?y "kw tl :Ft e r w ? f. i I?fh.. } y1?1y??'???S 0471 ar ??,. 7E 00 NA `a!}, x&4?i f?A.?''ity °,<'t I: pt FFd v ?l a ?[r? FO f i@ ti f ? 01 ? ? F ?f a r ? w =fit F 1r?y Y4/J_. 1 a fY? x ? ? f . 's ? rt r/t ??'Vy 4? 1 Y `ni 1 R 1 z 1 1, 4 17v ti?r? ns t r ?G\? r xs ?? ? Fly,lyi psi ?? 1 y - ? • Y? R?ryy J I ^hrae 2 ? SEP 2 S 2000. ' v 1 { JOHN E. ANDERSON, JR., and CHERYL. ANDERSON, Plaintiff's V. MAYAPPLE GOLF LINKS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-3702 EQUITY TERM ORDER OF COURT AND NOW, this 28°i day of December, 2000, upon consideration of the attached letter from Ron Turo, Esq., attorney for Plaintiffs, the hearing on the Petition for Contempt is continued generally. Counsel are directed to contact the court if they desire a hearing in this matter. BY THE COURT, Ron Turo, Esq. 28 S. Pitt Street Carlisle, PA 17013 Attorney for Plaintiffs Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant i J. Wesley Oler,,J J. ((f?J cc? m u? Pc.cC /1 •J b. cv :rc i. .?? i.. ; J Turo Law Offices RON TURD, Esquire ROBERT J. MULDERIG, Esquire DAVID A. GREENE, Esquire GALEN R. WALTZ, Esquire December 27. 2000 Honorable J. Wesley Oler, Jr. Cumberland County Courthouse Carlisle, PA 17013 Re: Anderson v. Froelich & Co., Inc. No. 99-3702 Equity Term Dear Judge Oler: www.TuroLaw.com 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800) 562-9778 Fax(717)245-2165 I'm writing to respectfully request that the final Contempt hearing in the above captioned matter which has been scheduled for Thursday. December 28, 2000, be continued generally as we have reached an agreement in the matter. The Defendants have agreed to immediately pay to my office on behalf of my clients the sum of $750.00 representing legal fees incurred by them to prosecute the contempt matters through the end of December 2000. In addition the Defendants have indicated that they are willing to move the T-Box at issue to a point at or near my clients property line in order to guarantee that no future golf balls will enter their property. My clients are willing to allow them to do this however there will be no point in a hearing until the future shows whether or not this movement resolved the problem with finality. Consequently, based on these agreements, I respectfully request that the hearing be continued generally. If the movement of the T-Box does, in fact, resolve the problem, there will be no need for future hearings and the matter will be closed. If, on the other hand, the Defendants do not follow through with the legal fee payment, do not move the T-Box as agreed or otherwise fail to live up to the terms of your initial Order or our subsequent agreements, I will be in touch and request a final contempt hearing. Your understanding and acquiescence to this request is greatly and sincerely appreciated. Sincerely Yours, koq Fib? D 11 r' td k'rrL 4 RON TURD, ESQUIRE RonTuro@TuroLaw.com RT/rms cc: Marcus A. McKnight, III, Esquire John & Cheryl Anderson 2 1,111. .W6l 1. MXNS10% JOHN E. ANDERSON, IN THE COURT OF COMMON PLEAS OF JR., and CHERYL CUMBERLAND COUNTY, PENNSYLVANIA ANDERSON, Plaintiffs V. CIVIL ACTION - EQUITY FROELICH AND COMPANY, INC., Defendant NO. 99-3702 EQUITY TERM ORDER OF COURT AND NOW, this 17`h day of April, 2001, upon consideration of the attached letter from Ron Turo, Esq., attorney for Plaintiffs, a hearing is scheduled for Wednesday, June 13, 2001, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Ron Turo, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiffs Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant BY THE COURT, J. esley Oler, rr., ?Q\ :rc 7uro Law Offices RON TURD, Esquire ROBERT J. MULDERIG, Esquire DAVID A. GREENE, Esquire GALEN R. WALTZ, Esquire April 12, 2001 Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: Anderson v. Froelich No. 99-3702 Equity Term Dear Judge Oler: www.TurcLow.com 28 south Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9888 (800) 582-9778 Fax(717)245-2165 I write as a follow up to my December 27, 2001 letter to you requesting that the Final Contempt Hearing which had been previously scheduled be continued generally. Pursuant to your Court Order of December 28, 2000 you continued the Petition for Contempt Hearing generally however directed us to contact you if a final hearing is necessary. I'm writing to request that a final hearing be scheduled. I thank you in advance for your prompt attention. TURD, ESQUIRE uro(cbTuroLaw.com RT/rms cc: Marcus McKnight, Esquire Apq 16 bu2ln,d4lt,?'j1t.L. - D(rn- ?aoo? i a? w0- ?A?- _ 9m I`Nzmil, •? CIT \ HOC) V QU ?'C' ? u n 'rl2l? b"? 4- Tc M + (n 57A?lAtroti' 1 L A(?oCL IZao ? 1835o DEFENDANT'S EXHIBIT JOHN E. ANDERSON, IN THE C JR., and CHERYL CUMBERLP. ANDERSON, - Plaintiffs 7^ V. CIVIL AC FROELICH AND COMPANY, INC., Defendant NO. 99-4 MON PLEAS OF PENNSYLVANIA N 02 CIVIL TERM ORDER OF COURT AND NOW, this 31st day of August, 2001, upon consideration of the Petition for Contempt in the above-captioned matter, and following the second hearing in the five-step contempt process, and pursuant to an agreement reached between the parties and their respective counsel in open court, a general continuance of this matter is granted upon the understanding, as dictated by counsel, that: 1. Immediately, the Defendant will move the blue tees, or the pro tees, forward to the area that currently houses the remaining tees on hole number six to provide protection for the Andersons from both fencing, the property fence and the tee fence, that are along that tee. 2. Furthermore, the Defendant agrees to meet with the Andersons at 1:00 p.m. next Friday, and that would be September 7, 2001, at 1:00 p.m. at that number six hole and work with the Plaintiffs on arriving at a plan for additional fencing to provide protection for the Andersons, they include additional fencing along the tee area and higher fencing, it may also include the additional property line fencing along the Andersons' line property as they would agree or is sufficient to further reduce or eliminate all golf balls from going on to their property. 3. Finally, the Defendant agrees to pay reasonable counsel fees in the amount of $500.00 to the Plaintiffs' counsel in this case within 10 days. Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 For the Plaintiff Marcus A. McKnight, III, Esquire 60 West Pomfret Street Carlisle, PA 17013 For the Defendant pcb n c ?? c_ - -C f J By the Court, JUL 2 7 2006 : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYVLANIA NO. 99-3702 CIVIL TERM CIVIL ACTION - EQUITY ORDER OF COURT AND NOW, this " day of , 2006, upon receipt and review of the Petition for Contempt, a hearing is scheduled on the .-)/A;t day of 2006 at _.3.' 00 __,O.m. in Courtroom No. 1 of the Cumberland County C ud' rthouse, Carlisle, Pennsylvania. BY THE COURT, JOHN E. ANDERSON, JR. &, CHERYL ANDERSON, Plaintiffs V. FROELICH & COMPANY, INC. Defendant w r , N ? CT ng U '7 Z (may ? zz ?} a N v V JOHN E. ANDERSON, JR. IN THE COURT OF COMMON PLEAS CHERYL ANDERSON, : CUMBERLAND COUNTY, PENNSYVLANIA Plaintiffs V. :NO. 99-3702 CIVIL TERM FROELICH & COMPANY, INC. : CIVIL ACTION - EQUITY Defendant PETITION FOR CONTEMPT 1. On March 27, 2000, after trial, the Honorable J. Wesley Oler, Jr. did find in favor of Plaintiffs and against Defendant in that the Defendant created a private nuisance in the form of the intrusion of golf balls from Defendant's property, Mayapple Golf Course, upon Plaintiff's property, adjacent thereto. 2. The Court ordered injunctive relief, compensation for physical damage and costs to the Plaintiffs. 3. Thereafter, despite this Order and decision, the Defendant again caused golf balls to intrude onto the Plaintiff's property and a Petition for Contempt was filed and hearings held culminating in an agreement whereby the Defendant would move the tees on Hole No. 6, the offending hole, to provide protection for the Andersons and would further provide fencing around that tee area. 4. The Defendant also agreed to pay legal fees. 5. The Defendant did, in fact, make adjustments to Hole No. 6 and the Tee Box area and also did provide fencing which stopped the intrusion of golf balls onto the Plaintiff s property until approximately June 2006. 6. Starting on approximately June 2, 2006, the Defendant did relocate the Tee Box on Hole No. 6 approximately 75 yards back towards it original offending position and golf balls began again to intrude on the Plaintiffs property and have been intruding since that date. 7. The dates and times of the intrusions of golf balls on the Plaintiffs property areas follows: a. June 2 - 3 balls b. June 3 - 2 balls c. June 5 - 2 balls d. June 9 - 2 balls e. June 10 - 1 ball f. June 1 l -1 ball g. June 13 - 1 ball h. June 14-1 ball i. June 15 -1 ball j. June 16 - 2 balls k. June 18-3 balls 1. June 20 - 1 ball m. June 21- 2 balls n. June 23 - 2 balls o. June 28 - I ball p. July 1 -1 ball q. July 2 - 2 balls r. July 7 - 2 balls s. July 9 - 2 balls t. July 12 - 2 balls u. July 16 -1 ball v. July 20 - 1 ball w. July 21-1 ball 8. The intrusions of these golf balls are in direct violation of the Order of this Court dated March 27, 2000 and should now cause this Court to hold a hearing and, after hearing, find the Defendant in Contempt and to further enjoin the Defendant from the utilization of the 61h Tee at the Mayapple Golf Course unless and until it is properly screened and no golf balls will intrude upon Plaintiffs property and, further, to provide additional compensation to Plaintiffs for Defendant's failure to follow this Court's Order to prevent the intrusion of golf balls onto their property and, further to provide the payment of legal fees to Plaintiffs as well as fines and costs to be determined by the Court and any other appropriate relief as the interest of justice would require. WHEREFORE, for all the above reasons, the Plaintiffs, John and Cheryl Anderson, respectfully request this Court to hold a hearing and, after hearing, find that Defendant has willfully failed to comply with this Court's Order of March 27, 2000 and, further, find that this willful failure has caused irreparable harm to the Plaintiffs and to award such damages as the Court finds appropriate, injunctive relief as necessary to cause the Defendant to cease and desist from any further intrusion of golf balls onto Plaintiffs property, to provide reasonable attorney fees to the Plaintiffs and to provide any other fines, costs or relief as the interest of justice would require. ,(v&2 Date ATRKe tf ully submitted on uro, Esquire Turo Law Office 28 S. Pitt Street Carlisle, PA 17013 717-245-9688 Attorney for Plaintiffs CERTIFICATE OF SERVICE I, Ron Turo, Esquire hereby certify that I served a true and correct copy of the PEITION FOR CONTEMPT, by depositing same in the United States Mail, first class, postage pre-paid on the -? §_ day of k l 2005, from Carlisle, Pennsylvania, addressed as follows: Marcus McKnight 60 W. Pomfret Street Carlisle, PA 17013 LAW 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688; FAX 717.245.2165 I JOHN E. ANDERSON, JR., and : IN THE COURT OF COMMON PLEAS OF CHERYL ANDERSON, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS CIVIL ACTION - EQUITY V. FROELICH & COMPANY, INC., DEFENDANT NO. 99-3702 EQUITY TERM DEFENDANT'S ANSWER TO AND NOW, this 215' day of August, 2006, comes the Defendant, Froelich & Company, Inc., by its attorneys Irwin & McKnight, and makes the following Answer to the Petition for Contempt: 1. The averments of fact contained in paragraph one (1) of the Petition are admitted. 2. The averments of fact contained in paragraph two (2) of the Petition are admitted. 3. The averments of fact contained in paragraph three (3) of the Petition are denied On the contrary, an agreement, was reached on August 31, 2001, which resolved this matter. 4. The averments of fact contained in paragraph four (4) are admitted 5. The averments of fact contained in paragraph five (5) are admitted in part and denied in part. It is admitted that adjustments were made to Hole No. 6. It is denied that golf balls were intruding onto the Plaintiffs' property. 6. The averments of fact contained in paragraph six (6) of the Petition are specifically denied. On the contrary, the Defendant has installed fencing and the tree line together with the protections installed by the Defendant adequately protect the Plaintiffs' property. 7. The averments of fact contained in paragraph seven (7) of the Petition are specially denied. The Defendant does not believe that golf balls are landing on the Plaintiffs' property. Proof thereof is demanded. 8. The averments of fact contained in paragraph eight (8) of the Petition are specifically denied. On the contrary, the Plaintiffs are bared from seeking compensation in an equity action and no damage has been alleged. WHEREFORE, the Defendant requests that your Honorable Court dismiss the Plaintiffs' Petition for Contempt with prejudice. IRWIN& BY: 60 West Pomfret 8imoV Carlisle, Pennsylvania 17013 (717)249-2353 Attorney for Defendant, Froelich & Company, Inc. Date: August 21, 2006 VERIFICATION The foregoing document is based upon information which has been gathered by counsel for the Defendant in the preparation of this document. To the extent that the document is based upon information which has been gathered by counsel, it is true and correct to the best of the counsel's knowledge, information and belief. The undersigned is verifying on behalf of the Defendant according to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: August 21, 2006 JOHN E. ANDERSON, JR., and : IN THE COURT OF COMMON PLEAS OF CHERYL ANDERSON, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS CIVIL ACTION - EQUITY V. FROELICH & COMPANY, INC. DEFENDANT NO. 99-3702 EQUITY TERM CERTIFICATE OF SERVICE I, Marcus A. McKnight, 111, Esquire, hereby certify that a copy of attached Defendant's Brief in Support of the Motions Made by Defendant for Post-Trial Relief and Exceptions to Decree Nisi was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Ron Turo, Esquire TURO LAW OFFICES 32 South Bedford Street Carlisle, PA 17013 IRWIN & McKNIGHT By: Marc is A. Mc i II ,Esquire 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Date: August 21, 2006 4 L Y r` lLl `U O J ? j ? a .. JOHN E. ANDERSON, JR., IN THE COURT OF COMMON PLEAS OF and CHERYL ANDERSON, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v CIVIL ACTION - EQUITY FROELICH & COMPANY, INC.,: Defendant 99-3702 EQUITY TERM IN RE: CONTEMPT HEARING ORDER OF COURT AND NOW, this 21st day of August, 2006, upon consideration of Plaintiffs' Petition for Contempt, and following a hearing held on this date at which evidence was received from both Plaintiffs and Defendant, and counsel for Defendant having indicated his desire to call two additional witnesses, one of whom is said to be an expert in the design of golf courses, a further period of hearing in this case is scheduled for Thursday, October 26, 2006, at 3:00 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Pending this further period of hearing and further Order of Court, the tee for Hole No. 6 on Defendant's golf course shall not be moved farther from the hole than the tee presently being utilized for the hole, as indicated in testimony received on today's date. Nothing herein is to be construed as sanctioning intrusions by golf balls upon properties of owners other than Plaintiffs and the exercise of property rights by the owners shall not be Fief-?;.?• :,,., OF 7H,_ f':::?; i7ARY 22 rN 2: 22 Cl" a affected by this order. Ron Turo, Esquire Turo Law Offices 32 South Bedford Street Carlisle, PA 17013 For Plaintiff By the Court, -)a - OG Marcus A. McKnight, III, Esquire 60 West Pomfret Street Carlisle, PA 17013 For Defendant mae ?? ?? i,