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Home My WebLink About99-03964a,. :F L v 2' Q + f i 7 f' a U GERTRUDE H. PARKS, a/k/a Erie Shore Enterprises, Plaintiff V. ROTHMAN, SCHUBERT & REED, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-3964 ACTION FOR DECLARATORY JUDGMENT REPLY TO DEFENDANT'S PRELIMINARY OBJECTIONS Plaintiff Gertrude H. Parks, a/k/a Erie Shore Enterprises, in response to the Notice to Plead endorsed upon the Defendant's Preliminary Objections, responds as follows: Reply to Defendant's First Preliminary Objection 1. Admitted. 2. Admitted although Plaintiff does not admit that the filing of Preliminary Objections is appropriate, proper or permitted in a proceeding involving a petition for the opening of a private road. 3. Admitted. 4. Admitted in part and denied in part. It is admitted that the parties are identical. It is denied, however, that the relief sought in the actions is identical. To the contrary, in the petition seeking the opening of a private road, the Plaintiff seeks a judicial order requiring the opening of a private right-of-way across property of the Defendant where none was believed to have existed. In the instant action, the Plaintiff seeks to enforce rights expressly granted to her by the common grantor of the parties to this case and, if such rights are enforced, the opening of a private road may not be required. 5. Admitted although the Plaintiff does not admit the relevancy of such allegation. WHEREFORE, Plaintiff respectfully requests that the First Preliminary Objection of the Defendant be dismissed. Reply to Defendant's Second Preliminary Objection 6. The allegation of Paragraph 6 of Defendant's Preliminary objections states a conclusion of law to which no responsive pleading is required. By way of further denial, Plaintiff submits that the Plaintiff's Complaint does state a cause of action against the Defendant. 7. Admitted. Additionally, the Complaint alleges that the driveway easement was, in fact, visible on the ground at the time that the Defendant acquired title to its property from the parties' common grantor and accepted a deed which specifically made such transfer subject to any easements visible on the property. 8. Because Plaintiff's Complaint raises no claim of adverse possession or easement by prescription, the allegations of Paragraph 8 of Defendant's Preliminary Objections, stating conclusions of law to which no response is otherwise required, are also irrelevant to the instant action. 9. The allegations of Paragraph 9 state conclusions of law to which no responsive pleading is required. To the extent a response is required, however, Plaintiff respectfully submits that 2 there is no requirement in Pennsylvania law that a document be recorded in order for its legal implications to be given full force and effect, particularly where, as here, Defendant took title to its property with the full knowledge of the possible existence of easements and driveways visible on the property, as disclosed and mentioned in the deed accepted by Defendant, and took no steps to ascertain legal rights of the Plaintiff or anyone else to such visible rights-of-way, driveways, accessways and the like which existed and were in open use across Defendant's property at the time Defendant acquired title t such property. The remaining allegations of Paragraph 9 of Defendant's Preliminary objections are mischaracterizations and misstatements of law or mischaracterizations of a document which speaks for itself and no response is otherwise required. WHEREFORE, Plaintiff respectfully requests that Defendant's Second Preliminary Objection in the nature of a demurrer be dismissed. Respectfully submitted, Date ?G Lam( V Y MARTSOLF & T O BY?C Bruce F. Bratton, Esquire Pa. Attorney I.D. No. 23949 2515 North Front Street P. 0. Box 12106 Harrisburg, PA 17108-2106 (717) 236-4241 Attorneys for Plaintiff 3 VERIFICATION I verify that the statements made in the attached pleading are true and correct, partially upon personal knowledge and partially upon my belief; to the extent language in the attached pleading is that of my attorneys, I have relied upon my attorneys in making this verification. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Gertrude H. Parka Date ?i???yy CERTIFICATE OF SERVICE I hereby certify that I today served a true and correct copy of the foregoing Reply to Defendant's Preliminary objections by placing the same in the U.S. mail, postage prepaid, addressed to: John W. Frommer, Esquire SMIGEL, ANDERSON & SACKS 2917 North Front Street Harrisburg, PA 17110 Date Ci q / Bruce F. Bratton, Esquire s, >- O ? L, .? ?._ i.. i i C: . ?'? I l.l ; Cli f?l" r? :i ? L,. l%? L) .a • J DEC ' 6 GERTRUDE H. PARKS, a/k/a Erie Shore Enterprises, Plaintiff V. ROTHMAN, SCHUBERT & REED, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-3964 ACTION FOR DECLARATORY JUDGMENT ORDER AND NOW, this d day of kA4kA , 1999, upon review of the within Stipulation, it is hereby ORDERED AND DECREED as follows: 1. The name of Pennsylvania State Bank, a Pennsylvania banking corporation, with principal offices at 2148 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011, shall be substituted as the Plaintiff in this matter. 2. All pleadings heretofore filed or discovery requests made by the former Plaintiff Gertrude H. Parks t/d/b/a Erie Shore Enterprises shall be deemed to be amended to specify and contain the name of Pennsylvania State Bank as the true party Plaintiff. 3. The Prothonotary is directed to amend or change its dockets and records to indicate that the Plaintiff shall now be designated as Pennsylvania State Bank. Distribution: John W. Frommer, Esquire Bruce F. Bratton, Es uire C-? nY e? /,;t/ 87111 f . A. P. BY THE COURT, j J. i ;_ ? ,-_. -, ?t,Rv ?`'i, ,,? .5? Y. i GERTRUDE H. PARKS, a/k/a Erie IN THE COURT OF COMMON PLEAS Shore Enterprises, ' CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO. 99-3964 ROTHMAN, SCHUBERT & REED, Defendant ACTION FOR DECLARATORY JUDGMENT STIPULATION The parties in interest, by and through their respective legal counsel, hereby stipulate and agree as follows: 1. The name of Pennsylvania State Bank, a Pennsylvania banking corporation, with principal offices at 2148 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011, shall be substituted as the Plaintiff in this matter. 2. All pleadings heretofore filed or discovery requests made by the former Plaintiff Gertrude H. Parks t/d/b/a Erie Shore Enterprises shall be deemed to be amended to specify and contain the name of Pennsylvania State Bank as the true party Plaintiff. 3. The Prothonotary is directed to amend or change its dockets and records to indicate that the Plaintiff shall now be designated as Pennsylvania State Bank. 4. This Stipulation shall'be effective upon approval by the I1, Court. Date 2141, ?, Date a 1 POP, e2 SMIGEL, ANDERSON & By Joh o m quire 2911 N h Front Street arrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant MARTSOLF & B TON By ? ??l/? Bruce F. Brat on, Esquire Pa. Attorney I.D. No. 23949 2515 North Front Street P. 0. Box 12106 Harrisburg, PA 17108-2106 (717) 236-4241 Attorneys for Plaintiff 2 II P 1 L 1: _ F_ V 11 . ?T C??"- ??j l,? LJ C') LI:• i iL'- _ C? Ci (.I :7 U? CJ GERTRUDE H. PARKS, a/k/a Erie Shore Enterprises, Plaintiff V. ROTHMAN, SCHUBERT & REED, Defendant TO THE PROTHONOTARY: Please mark the discontinued. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-3964 ACTION FOR DECLARATORY JUDGMENT PRAECIPE above-captioned matter settled and Respectfully submitted, MARTSOLF RATT N Date_ ('40 By V Bruce F. Bratton, Esquire Pa. Attorney I.D. No. 23949 2515 North Front Street P. 0. Box 12106 Harrisburg, PA 17108-2106 (717) 236-4241 Attorneys for Plaintiff ?J ?- ?-.. " :I i._ -. J GERTRUDE H. PARKS, a/k/a Erie Shore Enterprises Plaintiff V. ROTHMAN, SCHUBERT & REED, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-3964 ACTION FOR DECLARATORY JUDGMENT PRAECIPE FOR LIS PENDENS TO THE PROTHONOTARY: Please index the above-captioned matter as a lis pendens against the real property of the Defendant situate along Wertzville Road, in East Pennsboro Township, Cumberland County, and more particularly described on the attached Exhibit "A". Date 36 Judi T? MARTSOLF & IJRATTON ?/? By Bruce F. Bratton, Esquire Pa. Attorney I.D. No. 23949 2515 North Front Street P. 0. Box 12106 Harrisburg, PA 17108-2106 (717) 236-4241 Attorneys for Plaintiff ALL THAT CERTAIN tract of land located in East Pennaboro Township, Cumberlad County, Pennsylvania, more particularly bounded and n described as follows, to wit: BEGINNING at a point along the northern right of way line of Pennsylvania Route 944, also known as Wertzville Road and on the line of adjoinder between Lot, Nos. 1 and 3 on the hereinafter mentioned Plan- of Lots; thence along said line of ! adjoinder by a curve to the left with a radius of 10.00 feet and an arc length of 15.71 feet to a point; thence continuing along said line of,adjoinder North 17 degrees 32 minutes 33 seconds West, 185..58 feet to a point; thence continuing along said line of adjoinder South 72' degrees 27 minutes 27 seconds West, 241.55 feet to a point on the centerline of an.existing 20 feet sanitary sdwer easement- thence along said line North 27 degrees 20 minutes West, 138.95 feet to ,a point; thence continuing along said centerline North 17 degrees 15 minutes. 30 aeconde West, 263.28 feet to a point; thence continuing along said centerline North 4 degrees 30 minutes East, 130.24 feet to a point; thence continuing along said I centerline North 4 degrees 20 minutes 30 seconds East, 123.12 feet to a point; thence continuing along said centerline North 13 degrees 30 seconds West, 259.57 feet to a point; thence continuing along said centerline North 00 degree; 5.1 minutes East, 348.14 feat to a point on the line of adjoinder between Lot No. 3 and lands now or lace of Jacob R. Renninger; thence along said line of adjoinder North 80 degrees 59 minutes 42 seconds East, 102.70 feet to a point on the line of adjoinder between Lot No. 3 and lands now or late of Robert Bretz; thence along said line of adjoinder and along lands now or late of Margaret and Jacob Ulrich i South 22 degrees 24 minutes 47 seconds East, 200.31 feet. to an -iron pin; thence along the lina of adjoinder between Lot No. 3 and other lands now or late of Theodore and Winifred Sgrignoli South 22 degree, 31 minutes 32 seconds East, 165.19 feet to an iron pin; thence continuing along said line of adjoinder North 81 degrees 05 minutes 07 seconds East, 299.90 feet to an iron pin on the western end of Arabs Street; thence along said western end South 22. degrees 51 minutes East, 51.63 feet to an iron pin on the line of adjoinder between Lot No. 3 and lands now or late of Cecil Palm; thenee•along said line of adjoinder South 81 degrees 24 minutes West, 125.44 feet to an iron pin; thence continuing along said line of adjoinder South 22 degrees 51 minutes 08 seconds East, .349.95 feet. to an iron pin; thence continuing along said line of adjoinder North 81 degrees 24 minutes East, 125.44 feet to an iron pin on the western end of Linden Street; thence along said western end South 16 degrees 15 minutes.43 seconds East, 48.34 feet to an iron pin on the line of adjoinder between Lot No. 3 and lands now or late of Helen B. Halsey; thence along said line of adjoinder South 22 degrees 53 minutes 35 seconds East, 152.38 feet to an iron pin on the.line of adjoinder between Lot No. 3 and lands now or late of Donald E. Shutt; thence along said line of adjoinder and along lands now or late of Robert Bretz South 73 degrees 44 minutes 35 seconds West, 179.42 feet to an iron pin; thence along said line of Bretz South 17 degrees 35 minutes 35 seconds East, 182.03 feet to a point on the northern line of Lot No. 2; thence South 72 degrees 27 minutes 27 seconds West by the northern line of Lot No. 2, 199.80 feet to a point;. thence by the northern line of Lot No. 2 South 17 degrees 32 minutes 33 seconds East, 208.00 feet to a point; thence by a curve,to the left having a radius of 30 feet for a distance of 15.71 feet to a point on the northern line of Pennsylvania Route 944, known as Wertzville Road; thence South 72 degrees 27 minutes 27 seconds West, 80 feet to a point and place of BEGINNING. BEING Lot No. 3 on the Plan for Land Developement for Villa Granada said Plan being recorded in the Cumberland County Recorder of Deeds Office in Plan Book 38 Page 129 . L X /-1 ? Q/ T ?7 cz GERTRUDE H. PARKS, a/k/a Erie IN THE COURT OF COMMON PLEAS Shore Enterprises CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO.z2d ROTHMAN, SCHUBERT & REED, ACTION FOR DECLARATORY JUDGMENT Defendant NOTICE You have been sued in Court. If you wish to defend yourself against the claims set forth in the following papers, 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 defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD --AKE 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 OUR WHERE YOU CAN GET HELP. Court Administrator Cumberland County Courthouse, 4th Floor Carlisle, PA 17013 Telephone: (717) 240-6200 NOTICIA Len han demando a usted en la Corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona o por obogado y archivar en la torte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la Corte tomara medidas y puede entrara una orden contra usted sin previo aviso o notificacion y por cualquiere queja o alivio que es pedido en la peticion de demands. Usted puede perder dinero o sus propiedades o ostros derechos i.mportantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse, 4th Floor Carlisle, PA 17013 Telephone: Date 'O wit '?a (717) 240-6200 Respectfully submitted, MARTSOLF & BRATTON By Bruce F. Bratton, Esquire Pa. Attorney I.D. No. 23949 2515 North Front Street P. 0. Box 12106 Harrisburg, PA 17108-2106 (717) 236-4241 Attorneys for Plaintiff GERTRUDE H. PARKS, a/k/a Erie Shore Enterprises Plaintiff V. ROTHMAN, SCHUBERT & REED, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. V 9. 394 `/ a Ze / t ACTION FOR DECLARATORY JUDGMENT COMPLAINT AND NOW comes Plaintiff, by and through her counsel, Martsolf & Bratton, and represents as follows: 1. Plaintiff is Gertrude H. Parks, an adult individual residing at 3408 Old Historic Route 441, Turnerville, Georgia 30580. 2. Defendant Rothman, Schubert & Reed is believed to be a Pennsylvania partnership with principal place of business at 355 North 21st Street, Camp Hill, Pennsylvania 17011. 3. Plaintiff Gertrude H. Parks, t/d/b/a Erie Shore Enterprises, is the owner of a certain tract or parcel of ground situate in East Pennsboro Township, Cumberland County known and numbered as 715 Wertzville Road, having acquired title to such property by virtue of a deed dated November 7, 1980 and executed by Theodore E. Sgrignoli and Winifred E. Sgrignoli recorded in the office of the Recorder of Deeds of Cumberland County at Record Book E, Volume 29, Page 931 et seq., a true and correct copy of which said deed is attached hereto and marked Exhibit "A". 4. Defendant Rothman, Schubert & Reed is believed to be the owner of a certain parcel of ground abutting Plaintiff's land which it also acquired from the same grantor by virtue of a deed dated May 1, 1987, which said deed appears of record at the office of the Recorder of Deeds in and for Cumberland County at Record Book Q, Volume 32, Page 522, a true and correct copy of which said deed is attached hereto and marked Exhibit "B". 5. Both Plaintiff's and Defendant's tracts of ground were created as separate lots by the common grantor and appear upon a certain subdivision plan known as the Plan of Villa Grenada processed for approval by the Plaintiff's and Defendant's common grantor, Theodore E. Sgrignoli, which said plan appears of record at the office of the Recorder of Deeds in and for Cumberland County at Plan Book 38, Page 129, having been recorded on October 22, 1980. Said plan is not readily reproducible but does appear of record and such plan is incorporated herein by reference. Plaintiff's property appears on such plan as Lot No. 1 and Defendant's property appears on such plan as Lot No. 3. 6. At or about the time of Plaintiff's purchase of her property, Plaintiff was also granted an easement, right-of-way and use of a portion of the property which appears on the Plan of Villa Grenada for purposes of ingress and egress to Plaintiff's property. A true and correct copy of the document granting such right as executed by the said Theodore E. Sgrignoli is attached hereto as Exhibit "C". 7. From approximately November or December of 1980 until late 1998 or early 1999, access to the Plaintiff's property was gained solely by means of use of a driveway constructed across the "tail" of Defendant's tract of ground pursuant to the agreement of 2 Theodore E. Sgrignoli granting a right of easement, right-ef-way and use. 8. Plaintiff's use of Plaintiff's property, or the use by Plaintiff's lessors, agents or assigns, had been approved by, variances were granted by and building permits and other permits were issued by the Township of East Pennsboro and/or by others, all in reliance upon the existence of the legal easement, right-of-way and use which had been granted to Plaintiff for such -ccess purposes. 9. Changes to Wertzville Road, including acquisition of a portion of Plaintiff's property by deed in lieu of condemnation, were undertaken and approved by the Township of East Pennsboro and/or others in 1998-99, at the request of Defendant all in reliance upon the continued right of ingress and egress to and from Plaintiff's property by means of the common driveway across Defendant's property. 10. In or about late 1998 and early 1999, Defendant, or others acting at the express direction and on behalf of Defendant, erected curbs and other barriers to block off or eliminate access to the Plaintiff's property across the driveway which had been used by the Plaintiff or Plaintiff's lessors, agents or assigns since 1980. 11. Title to Defendant's property as conveyed by the deed attached hereto as Exhibit "B" was expressly under and subject to "easements visible or of record to the extent that any person or entities have acquired legal rights thereto". 3 12. Plaintiff's driveway easement was visible and in constant, open use from about November or December of 1980 and continued to be visible until Defendant blocked such access by curbing and other construction on Defendant's property in late 1998 or early 1999. 13. Defendant knew or should have known of Plaintiff's right to use such driveway for ingress and egress at or before Defendant acquired title to its property in 1987. 14. From the time of Defendant's acquiring title to its property in 1987 until late 1998 or early 1999, Defendant had raised no objection to the use of the driveway by Plaintiff or Plaintiff's lessees, agents or others. 15. Defendant's intentional blocking of access is wrongful and contrary to the legal rights of Plaintiff as to Plaintiff's right of easement, right-of-way and use of the portion of Defendant's property necessary for access to Plaintiff's property. 14. Defendant has wilfully denied Plaintiff's legal right to use any portion of Defendant's property for means of ingress and egress, refused to remove the curbing or obstruction of Plaintiff's driveway entrance, and has, thereby, caused the Plaintiff's land to become essentially valueless and without adequate means of ingress and egress. WHEREFORE, Plaintiff respectfully requests judgment in her favor and against Defendant in the nature of a declaration by this Honorable Court that Defendant's property, particularly that portion of the 60-foot-wide strip or "tail" of Defendant's property known as Lot 3 on the Plan of Villa Grenada (Plan Book 38, 4 Page 129), is subject to a valid and perpetual right of the Plaintiff in the nature of an easement, right-of-way and of use for purposes of ingress and egress to Plaintiff's property until such time as such area is dedicated as a public street; and, further, that the Plaintiff be awarded her costs of suit and, if available under applicable Pennsylvania law, an award of attorneys, fees and expenses. Respectfully submitted, +/p a n MARTSO TTO Date o(O /Rot 1 By Bruce F. Bratton, Esquire Pa. Attorney I.D. No. 23949 2515 North Front Street P. 0. Box 12106 Harrisburg, PA 17108-2106 (717) 236-4241 Attorneys for Plaintiff 5 SS No. 536 FEE•8I3IPLE DEED-Type-rrites 7th 'day of November to the year of our Lord One ' i rhousand Mae 1,1-ndred and tighty (1900) { ?rflurrit . l THEODORE E. SGRIGN.OLI and WINIFRED E. SGRIGNOLI, Ilia Wife, t•f the Borough of Enola, Cumberland County, t Perin aylvania, Grantors, Parties of the first part I AND ! IE UfEORE ENTERPRISES, INC., an Ohio proprietor- R? 1 nh4 ;,V 1th ito Pennsylvania offices located at 6' Carol Str64k Enola, Cumberland County, Pennoylvania, Grantees, rate:lco I •• of the second pars, '' ?. X'.ta rirfl1 That the snidpurties of the first part, for and In consideration ! oftheswnofTwenty-nine Thousand.and no/100 ($29,00r).00)------------- Dollars, lawful mo:ry of fife Untied Sin let of Aim erica, welt and truly pald by the said part iebvf the , second part to the sold part ies of the first part, at and before the sealing and delirrry of these ! prearnti, the receipt whreeof to hereby acknowledged, . i grnntrd, bargained, salt, aliened, enfeoffed, released, eotreyed and eonfiruwd and by these presentt do ! grant, bnow4n. sell. allrn, enlenll, release, eonrey, and'mnflrm into the said part ies of ' the +Kond part their Aries and a,stgn,. I 11 that certain piece, parcel or tract situate in East Pennsboro Township, Cumberland County, Pennsylvania, more or particularly bounded and described as follows, to wit: BEGINNING at a point on the north side of Pa. Route 944 at line of lands of lot number three (3) in the plan of lots as recorded in flan Book 38 Pzge 129 Cumberland County Records; thence along the north right of way line of Pa. Route 944 South seventy-two degrees twenty- seven minutes, twenty-seven seconds west one hundred and five and twenty-thrri hundredths feet (S 720 27' 27." W. 105.23,ft) to a point on the nort:haide of Pa. Rou;e•944; thence along the same South :,eve.,cy-four degracs, forty-two minutes forty-Four seconds west seventy- nine and fifty-one hundredths feet (S 740'42' 44" W. 79.51 ft) to a I:oint on the north side of Pa. Route 944; at line of lands now or I :'ormerly of Buchart Here, Inc; thence along the same; North fifty- e:ight degrees five minutes thirty seconds west- twenty-six and thirty- ".:we hundredths feet (N. 500.05' 30" W. 26.32 ft); to a part at other lands of.' Buchurt Horn, Inc.; thence, along the same North twenty- :•evett degrees twenty minutes west one hundred and seventy-five feet itl. 270 20' 00" W. 175.00 ft) to a point at line of lands of the Grantor herein; thence along the same North seventy-two degrees twenty- ,.cven minutes twenty- seven seconds cast two hundred And forty-one I i i C XF/r/}/i i % and fifty-five hundredths feet (N. 720 27' 27" E. 241.55 ft) to a point at ocher line of lands of the Grantors herein South seventeen degrees thirty-two minutes thirty-three seconds cast one hundred and eighty. five and fifty-eight hundredths feet (N. 170 32'•33" 185.58 fc) to a point at other lands of the Grantor; thence on d radius of ten (10.00) feet length of fifteen and seventy-one hundredths feet (15.71ft) to a point on the north aide of right-of-way of Pa. Route 944, the point and place of BEGINNING. BEING Lot Number one (1) of the Plan of Lots done the 25th day of August, 1980 by Irwin Engineering Asaociatca,Inc, and recorded in Plan Book 38, Page 129, Cumberland County RecorAs , containing one acre. In, under and subject to the rights of way, easamerits, conditions and restrictions as set forth on said'plart of'1ots. BEING part of the same premises which Buchart-][orn, Inc. by its deed dated the 27th day of February, 1978 and recorded in Record Book Q, Volume 27, Page 961, Cumberland County records granted and conveyed into,the Grantors herein. f 1.. COMMONWEALTH OF PENNSYLVANIA = DEPARTMENT OF REVENUE PfAUY RE:O.49".0"NE OT TIIE IRANSf[R 3? ` A000 ..4 of ""S • m TAX SOYI!•10 Z 9 O. O O = CUNOEALhND CULT" . • o c0.llli!' _ PENNSYLYAAIA .12 34 FH og % - .. ... .. .: ,' . Vii. , . .. 600f? 2A7PdGE37?2 .. . , z i I .1 I I i i / ... t q / ? ? a h 76' /nos Ser - /des ..o ' L 7S . t School D41. Cumb. Co., Pal, Camkr. Co.. Pa. tS list U.I. Uu.Ar 7u ' I A lul td.t. TI-mN, 1.. tLv . l ), ?f 1 •" ? l ........ Nn D.1. , • M.L L f/. (/0?.'a 19 t • a a C..b. G. Dirt. W. Att. A-% 3 Din. U. AtL/1 , , i t?ugrilirr with all and singular, 1).e tenements„ heredliaments and appurtertan"s to the sams . real belonging or in anywise appertaining, and the reuersiun and •reaerv ons fremainder and rat Iodate. rents, issues, and profits thereofi %Ilh elDn all the estate, r4ghi. fir interest, Prof ttr cl and demand whaboeoer, both In lew and equity, of the said purl ies of the first part, of, In. t. ar out of the raid pramises, and et•ery Part and parcel thereof Vp Ijuut Illl1b to linlb the said promises, w(1A all and singular the appurtenances, unto the sold part ies of the second part, their . heirs and asst its and for the and assigns and behoff of the sold part ies ., of the sopped part, forever, rNE SAID Grantorc bete, uctwton and odminlrtrotore, da by,the r Presmis? eo•aw el. grant and agree to and its heirs and part. ealih the said part ies the oCeope., ntorn uRgns, that ' holes all and singular the hered(taments and premises hereinaboue duoeiGend Part, 1tlSUneJ, arid td or and intended to to be, u•Ith appurtenances, unto the told pare ies pcd ) the s againof the told part Len of the first part and their heirs and'ognitvt all bete and nulgns, • and curry other person or Persons whomsoeapy lawfully claiming or to claim the tome or wpy, part , , shall and will, by these prncnts, VAIMANT'AW) FO71. thereof, 1 • SUER DEFEND •s ? • '• ?• -311 Niinrss 1011rrrnf the aid part ies of the first .p°'`• A .O* rVf kinds and seat S the day and year first abort W' tt.m.: •• ?ereanfn .re their • • '• ' ' ?ld i?, .,?>cz1 --: ?.... 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Yf/ tt l .,/ oJfbeOranfre,lKJ..a't?YytnDedl... . I. ... 01 • Aftnmer fnr (Imutee. ' ' I b N :L t t ? t 1 i .. t t .. ) ti b N H P ; O t i ? j l?• i ? 9 i ( M OO ?L N? I 1j 1. r Ol ! N V o 2 Z. in W H'N .-? i 0 U w N r4 o I I .ol ! t ?1- k r ` 0 H H '4 P. n. r'j r4 r4 w O1 cnU I.#U IaU NI 14! '•? t I. : l I 3. I?.a r ' to ra N w k P Z oQ Ux?,Ell t l. y t 4 d O 0 mv1 F, p a, c rn u ml t ' r K i O H a1 G • ', :i I =NU N YI t ! i i G - n w _ t 1. s ;•.... i. 8 d O]h( . TVZEAl ru OF*/ F, 'A'S LV"IA .................. SS: dlernrdr2l In the f1 •? for ecordig of Deeds, tAlortga 7, in ?I for the County o _ss?.r f a . ........ Deed Book- . ........... Vol. .... ..... Pa mi (teas My I-land and Seal of Office, this ........... .......... ............?o%...._... da of :: y _...).. ? ?_ Anno Domini 19 F,) boaK,?19PdA34 - •?- C N•nn enm-wannp, ors-snag ram-.MR 1 M11. 1m, Ind-, . ra CIDS-OeiRM slot `. . , 1`-' .? ,. I I wr?a 19b J t? ??? lcC3R^uE0-GFFIGE QF';IIE HE.O' , vtE05 MADE THE tat '87 MAY 7 a a 444 of our Lord one thousand nine hundred eighty-seven (1987) BETWEEN THEODORE E. SCRICNOLI and WINIFRED E. SGRICNOLI, his wife f.? Grantor s and WILLIAM F. ROTHMAN, CHARLES F. SCHUBERT 6 SAMUEL L. REED, co-partners, t/d/b/a ROTHMAN, SCHUBERT B REED, a partnership WITNESSETH, that in consideration of One Hundred Nine Thousand Eight Hundred Grantee Ninety and No/100 -----------------------($109,890.00 ) ------------- Dollars, in hand paid, the receipt whereof is hereby acknowledged, the said grantor do hereby grant and convey to the said grantee , ALL THAT CERTAIN tract of land located in East Pennaboro Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point along the northern right of way line of Pennsylvania Route 944, also known as Wertzville Road and on the line of adjoinder between Lots Noe. 1 and 3 on the hereinafter mentioned Plan- of Lots; thence along said line of adjoinder by a curve to the left with a radius of 10.00 feet and an arc length of 15.71 feet to a point; thence continuing along said line ofadjoinder North 17 degrees 32 minutes 33 seconds West, 185.58 feet to a point; -thence continuing along said line of adjoinder South 72 degrees 27 minutes 27 seconds West, 241.55 feet to a point on the centerline of an existing 20 feet sanitary sewer easement-, thence along said line North 27 degrees 20 minutes West, 138.95 feet to a point; thence continuing along said centerline North 17 degrees 15 minutes 30 seconds West, 263.28 feet to a point; thence continuing along said centerline North 4 degrees 10 minutes East, 130.24 feet to a point; thence continuing along said centerline North 4 degrees 20 minutes 30 seconds East, 123.12 feet to a point; thence continuing along said centerline North 13 degrees 30 seconds West, 259.57 feet to a point; thence continuing along said centerline North 00 degrees 51 minutes East, 348.14 feet to a point on the line of adjoinder between Lot No. 3 and lands now or late of Jacob R. Henninger; thence along said line of adjoinder North 80 degrees 59 minutes 42 seconds East, 102.70 feet to a point on the line of adjoinder between Lot No. 3 and lands now or late of Robert Bretz; thence along said line of adjoinder and along lands now or late of Margaret and Jacob Ulrich South 22 degrees 24 minutes 47 seconds East, 200.31 feet to an iron pin; thence along the line of adjoinder between Lot No. 3 and other lands now or late of Theodore and Winifred Sgrignoli South 22 degrees 31 minutes 32 seconds East, 165.19 feet to an iron pin; thence continuing along said line of adjoinder North 81 degrees 05 minutes 07 seconds East, 299.90 feet to an iron pin on the western end of Areba Street; thence along said western end South 22 degrees 51 minutes East, 51.63 feet to an iron pin on the line of adjoinder between Lot No. 3 and lands now or late of Cecil Palm; thence along said line of adjoinder South 81 degrees 24 minutes West, 125.44 feet to an iron pin; thence continuing along said line of adjoinder South 22 degrees 51 minutes 08 seconds East, 349.95 feet. to an iron pin; thence continuing along said line of adjoinder North 81 degrees 24 minutes East, 125.44 feet to an iron pin on the western end of Linden Street; thence along said western end South 16 degrees 15 minutes.43 seconds East, 48.34 feet to an iron pin on the line of adjoinder between Lot No. 3 and lands now or late of Helen B. Heisey; thence along said line of adjoinder South 22 degrees 53 minutes 35 seconds East, 152.38 feet to an iron pin on the line of adjoinder 800XQ32 PAGE 522 Art EX14116IT ''Bv between Lot No. 3 and lands now or late of Donald E. Shutt; thence along said line of adjoinder and along lands now or late of Robert Bretz South 73 degrees 44 minutes 35 seconds West, 179.42 feet to an iron pin; thence along said line of Bretz South 17 degrees 35 minutes 35 seconds East, 182.03 feet to a point on the northern line of Lot No. 2; thence South 72 degrees 27 minutes 27 seconds West by the northern line of Lot No. 2, 199.80 feet to a point; thence by the northern line of Lot No. 2 South 17 degrees 32 minutes 33 seconds East, 208.00 feet to a point; thence by a curve.to the left having a radius of 10 feet for a distance of 15.71 feet to a point on the northern line of Pennsylvania Route 944, known as Wertzville Road; thence South 72 degrees 27 minutes 27 seconds West, 80 feet to a point and place of BEGINNING. BEING Lot No. 3 on the Plan for Land Developement for Villa Grenada said Plan being recorded in the Cumberland County Recorder of Deeds Office in Plan Book 38 Page 129 . 'UNDER AND SUBJECT to all Acts of Assembly, County and Township Ordinances, rights of Public Utility and Public Service Companies, existing restrictions, and easements visible or of record to the extent that any persons or entities have acquired legal rights thereto. BEING part of the same premises which BuchartHorn, Inc., a Pennsylvauia corporation, by its deed dated February 27, 1978 and recorded in the Cumberland County Recorder of Deeds Office in Dead Book 27Q, Page 961, granted and conveyed unto the Grantors herein. E6c...t AaoJ6.r. iASO Dist. Cumb. G, Pa. A4 WI M.F. T.u.ly Lt o..S..?:s:?. A.LsY. 'K? rA..r\ 0% G.F. GI. Ask Ob !f-Q•/ f P.ImJ 60ru ...wp a Cumb. Co, Pa. R..I UNTO TWO" _ 'Crwob. p pss. O.l AIL -10 r COMMONWEALTH OF PENNSYLVANIA " N COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF REVENUE DEPARTMENT OF REVENUE N REALTY n a u REALTY r •? TRANSFER HUT-1'11 "" 9 9 8.90 EA%NSfER a1T•F'17 xl° 10 o 0 ?. 0 TAX P. B.111E: o P.B.1116: 800.1'Q?2 Pnu $2a And the said grantor Shereby covenant and agree that win warrant subject as aforesaid they the Property hereby conveyed IN WITNESS WHEREOF, am grantors a hereunto sat the day and year first above written, their hands and seat 8ig"k Stafrb anb Aleftbtrtb oAL 1 tlrtgtnrt o .cT/qh?e/[o?duore Sggno? / ?+?n? •ed E, Sgri no .. assn _ ... _ ...................... ...... ..... . AM NOYW State of PENNSYLVANIA County of CUMBERLAND rte' ly on this, the 1st day Of A Notary Public , 1087 , before me, the undersigned our, his wife Personally appeared Theodore E. Sgrignoli and Winifred E. Sgrignoli, known to me (or satisfactorily proven) to be the person a whose name a are subsoribed to the within Ows %r}snt, and acknowledged that they executed same for the Purposes therein State County of Oh this, the tEOF, 1 hereunto aet?gdofficrad y IoYJ By Cea415:10 s, day of Nov. 8, 1987 ... U:.r.?,S'&ht:aN9?fiMra: eer:;r xut cone, r.::;... :.rt B EX' Mi (I'M t, 1777 e YogGr, rwnrylnNO enodrvon of Nouns c:: , before me, . to the undersigned oljcer, Personally appeared , 10 known to me (or satisfactorily proven) to be the person whose name in within instrument, and acknowledged that executed same for the subscribed e contained purposes there n IN WITNESS WHEREOF, I hereunto set my hand and offidal.se4 sou, Tats of 05cer. Of do hereby cer/ti?/y that the Precise residenu and complete post ogke address / the within named grantee is n^ A56v- /8OO 10 Camp 11(!11 /?j . /9o ? _._?bStrnnT Lry?-rl Ikc????I? BOOXQ32 PACE 524 t i r, t November 26, 1980 To Whom It May Concern: I, Theodore E. Sgrignoli, am the owner *of certain lands and premises located in the Township of. East Pennsboro, County of Cumberland, Commonwealth of Pennsylvania, title of which was vested in me by a deed dated February 27, 1978 and recorded in the Office of Recorder of Deeds of Cumberland County on February 28, 1978 in Deed Book. 'IQ". Volume 27, Page 961. This parcel of land was subdivided into certain lots, said subdivision performed on the 25th day of August, 1980 by Irwin Engineering Associates Inc, and recorded in Plan Book 39, Page 129 Cumberland County Records on October 22, 1980. On November 7, 1980 I conveyed Parcel No. 1 of said plot of lands.to Erie Shore Enterprises, an Ohio proprietorship whose Pennsylvania proprietor, is Lee Armstrong. As a condition of said sale, I agreed that a new. street would be constructed from Wertzville Road and located between Parcel No. 1 and Parcel No. 2 on said plot of lands. In the interim period of time. before said street is. constructed, I agree, grant and convey to Erie Shore Enterprises an easement, right-of-way, of use of that portion of land for ingress and egress to the Erie Shore Enterprises property. r ar",a eodor Sgri "r,, VERIFICATION I verify that the statements made in the attached pleading are true and correct, partially upon personal knowledge and partially upon my belief; to the extent language in the attached pleading is that of my attorneys, i have relied upon my attorneys in making this Verification. I understand that false statements herein are made subject to the penalties of IS Pa. C.S. Section. 4904 relating to unsworn falsification to authorities. Gertrude H. Parke Date "02 Stld aZ:li 311 66/ZZ/90 ¦ SHERIFF'S RETURN - REGULAR CASE NO: 1999-03964 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PARKS GERTRUDE H ET AL VS. ROTHMAN SCHUBERT & REED CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE & COMPLAINT, ACTION FOR was served upon ROTHMAN SCHUBERT & REED the defendant, at 14:15 HOURS, on the 30th day of June 1999 at 355 NORTH 21ST ST CAMP HILL, PA 17011 CUMBERLAND County, Pennsylvania, by handing to BAMBI NEVILLE (BOOKKEEPER) a true and attested copy of the NOTICE & COMPLAINT, ACTION FOR together with DECLARATORY JUDGEMENT, PLTFF'S REQUEST FOR PRODUCTION OF DOCUMENTS and at the same time directing Her attention to the contents thereof. Sheriff's Cgsts: So ans Docketin C 18.00 Service 9.30 Affidavit 00 Surcharge 8.00 omas ine, eri $3b 30-MARTSOLF & BRATTON 07/01/1999 by P 1 Sworn and subscribed/ o before me this a,r day of 19qq A.D. )14 o o a yo a y GERTRUDE H. PARKS, a/k/a Erie IN THE COURT OF COMMON PLEAS Shore Enterprises, CUMBERLAND COUNTY, PA Plaintiff V CIVIL ACTION - LAW NO. 99-3964 CIVIL ROTHMAN, SCHUBERT & REED, ACTION FOR Defendant DECLARATORY JUDGMENT NOTICE TO PLEAD TO: GERTRUDE H. PARKS, a/k/a Erie Shore Enterprises And BRUCE F. BRATTON, ESQUIRE You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Smigel, Anderson & Sacks Date: -?) ,A -Z'3 BY:bD40rt 2 . romr er, Esquire 6 ront Street Harrisburg, PA 17110-1260 (717) 234-2401 Attorneys for Defendant 5471-1.7/Preliminary ObjectionsdWF/psm July 20, 1999 12:33 PM GERTRUDE H. PARKS, a/k/a Eric IN THE COURT OF COMMON PLEAS Shore Enterprises, CUMBERLAND COUNTY, PA Plaintiff V. CIVIL ACTION - LAW NO. 99-3964 CIVIL ROTHMAN, SCHUBERT & REED, Defendant ACTION FOR DECLARATORY JUDGMENT DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW comes Defendant, Rothman, Schubert & Reed, by and through their attorneys, Smigel, Anderson & Sacks, and objects to the Plaintiffs Complaint for the following reasons: FIRST PRELIMINARY OBJECTION: PENDENCY OF A PRIOR ACTION On May 10, 1999, the above-named Plaintiff instituted an action by Petition for Opening of a Private Road against the above-named Defendant in the Court of Common Pleas, Cumberland County. The docket number of said action is 99-163 Miscellaneous Road Docket filed in the Office of the Clerk of Courts, Cumberland County, Pennsylvania. 2. On June 7, 1999, the Defendant filed Preliminary Objections in the nature of a demurrer to the Plaintiffs Petition. The matter remains pending before this Court. 3. Thereafter, Plaintiff instituted the instant Complaint against your objecting party. The Plaintiffs instant Complaint for Declaratory Judgment was filed on June 28, 1999. 4. The actions are identical in the following respects: a. The parties are identical. b. The relief sought is identical. Specifically, the Plaintiff/Petitioner in the Miscellaneous Road Docket action seeks the appointment of a Board of View in order to permit the Plaintiff/Petitioner's private use of a driveway on the Defendant's property. This is the exact same private use the Plaintiff seeks this Court grant by way of the instant action for Declaratory Judgment. 5. The Plaintiff/Petitioner's first and pending action has not been dismissed or discontinued. WHEREFORE, Defendant respectfully requests that Plaintiffs instant Complaint in the nature of an action for Declaratory Judgment be dismissed in light of a pending prior action. SECOND PRELIMINARY OBJECTION - DEMURRER 6. The Plaintiffs Complaint fails to state facts constituting a cause of action against the Defendant. Specifically, the Plaintiffs Complaint alleges at paragraph 12 that "Plaintiffs driveway easement was visible and in constant, open use from about November or December 1980 and cc,;,inued to be visible until Defendant blocked such access by curbing and other construction on Defendant's property in late 1998 or 1999." 8. The allegation of open use on its face is for a period of less than twenty-one years (21) and accordingly legally insufficient to support a claim for adverse possession. 9. In addition, or in the alternative, the Plaintiff relies upon an unrecorded, handwritten document attached to the Plaintiffs Complaint. The unrecorded, handwritten document on its face is legally insufficient to identify the conveyance of any interest in land that would support the Plaintiffs request for a Declaratory Judgment. Accordingly, assuming arguendo the allegations in the Plaintiffs Complaint to be true for the purposes of this demurrer, the Plaintiffs Complaint has failed to state a cause of action upon which the relief of Declaratorv Judgment may be granted. WHEREFORE, Defendant respectfully requests that the Plaintiffs Complaint be dismissed for its failure to stale a cause of action upon which relief may be granted. Smigel, Anderson & Sacks Date: -J? J t?? BY: _ Jo n W. romm rare I. #4 2917 North Front Street Harrisburg, PA 17110-1260 (717) 234-2401 Attorneys for Defendant GERTRUDE H. PARKS, a/k/a Erie Shore Enterprises, Plaintiff V. ROTHMAN, SCHUBERT & REED, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 99-3964 CIVIL ACTION FOR DECLARATORY JUDGMENT CERTIFICATE OF SERVICE I, JOHN W. FROMMER, ESQUIRE, do hereby certify that a true and correct copy of Defendant's Preliminary Objections was served on the following person by depositing the same in the United States First Class Mail, postage prepaid, addressed as follows, on July 20, 1999: BRUCE F. BRATTON, ESQUIRE MARTSOLF & BRATTON 2515 North Front Street P.O. Box 12106 Harrisburg, PA 17108-2106 Smigel, Anderson & Sacks BY ohn From r, Esquire #yk 6 2917 North Front Street Harrisburg, PA 17110-1260 (717) 234-2401 Attorneys for Defendant r ? fr wtl Kua-..M I . . . . cu..... t<6Y ONGtlO! ol.u,B FWta S.",