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HomeMy WebLinkAbout99-05396 V a 2 41 ?, NANCY L. WHEATON, : IN THE COURT OF COMMON PLEAS OF Plaintiff ; CUMBERLAND COUNTY, PENNSYLVANIA V. :NO. 99- 539k- CIVIL TERM SCOTT A. BOLGER, : CIVIL ACTION - EQUITY Defendant 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 NANCY L. WHEATON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99- 5794G ?ERM SCOTT A. BOLGER, : CIVIL ACTION - EQUITY Defendant COMPLAINT 1. Nancy L. Wheaton is an adult individual currently residing at 4301 Woodcrest Lane, Hampden Township, Camp Hill, Cumberland County, Pennsylvania. 2. Scott A. Bolger, is an adult individual with a last known address of 135 South 18t' Street, Suite 402A, Philadelphia, Pennsylvania 19103. 3. On or about September 28, 1998 the Defendant, Bolger, obtained a property located at 16 Stone Spring Lane, Hampden Township, Cumberland County, Pennsylvania. 4. This parcel is situated directly across from Plaintiffs property referenced above and is separated by a forty (40) foot strip of land. 5. On or about April 9, 1999, the Plaintiff, through his attorney, Keirsten W. Davidson, did file a complaint to quiet title and docketed at No. 99-2109 Civil Term in the Court of Common Pleas of Cumberland County, Pennsylvania. This action was brought in reference to the forty (40) foot strip mentioned above. 6. Pursuant to Plaintiffs Complaint to Quiet Title the purported owner of this strip of land was one Benjamin F. Zimmerman, his heirs and assigns with a current unknown address. 7. Plaintiff, in paragraph 4 of his Complaint, alleged adverse possession of the property for a period in excess of 21 years including time purportedly running by his predecessors in interest. 8. The Defendant further, in paragraph 6 of his Complaint, indicated that he had been "in exclusive and continuous possession of the property". 9. The property at issue is a forty (40) foot strip of property some 117.07 feet in length which lies directly between the property of Bolger referenced above and the property of the Plaintiff referenced above. 10. The Plaintiff acquired her property on November 13, 1979 from George W. Rogers and Catherine A. Rogers along with her then living husband Robert W. Wheaton. 11. The Plaintiff has taken title to her property by operation of law upon the death of her husband. 12. Plaintiffs property is referenced in Deed Book T, Volume 28, Page 249 in the Office of the Recorder of Deeds in and for Cumberland County. 13. The Plaintiffs property was created by a subdivision approved by the Hampden Township Board of Commissioners on or about December 3, 1965 and was known as "St. John's Place". 14. This plan is recorded in Plan Book 17, Page 41 and Plaintiffs property is indicated as Lot No. 5 on the said Plan. 15. On the said Plan Plaintiffs property is abutted by "Hillcrest Road forty (40) feet (not open)". 16. Hillcrest Road, as it abutted Plaintiffs property in the parcel at issue, was a street offered for public use and dedication but never opened. 17. The Hampden Township Board of Commissioners have never accepted Hillcrest Road as it abuts Plaintiffs property for public use or dedication. 18. Plaintiff is in actual possession of the said strip of land at issue and has been in actual possession of this piece of property for a period in excess of 21 years and has, by herself and her predecessors and interests, had the actual, exclusive, continuous, visible, notorious and adverse possession of the property described above continuously for a period in excess of 21 years prior to the filing of this Complaint, claiming to own the same in fee against the whole world. 19. The Plaintiff, and the Rogers who were the preceding owners in interest, maintained the said forty (40) foot wide strip by cutting the grass, utilizing the property as their own, maintaining the property free from weeds and undergrowth, and otherwise have held the property as their own continuously for a period in excess of 21 years against all the world including any ownership interest of Defendant Bolger. 20. Defendant Bolger did, by fraud and by misrepresentation did obtain a Court Order from the Cumberland County Court of Common Pleas pursuant to the above claimed quiet title action. 21. The Defendant, did not, at any time, notify the Plaintiff Nancy Wheaton of his intention to obtain interest in this property by adverse possession or otherwise and did not, at any time, have Plaintiff served with a copy of the pleadings or post the said forty (40) foot strip in anyway so as to put Plaintiff on notice of his intention to attempt an adverse possession interest in said property. 22. Defendant Bolger has now applied for a subdivision from the Hampden Township Board of Commissioners requesting permission to open said forty (40) foot strip and dedicate the same to public use and access. 23. The Plaintiff, Nancy Wheaton, will not provide her permission to open said forty (40) foot strip to public use and dedication pursuant to the authority in the Pennsylvania Highway Code, 36 P.S. § 1961 "Unopened ways or streets on town plats". 24. Pursuant to said section as this property did not, at any time, become utilized as a public way or thoroughfare and was not accepted for dedication by Hampden Township, it can not thereafter be opened for public use without the consent of the abutting land owners, namely Plaintiff Nancy L. Wheaton. 25. Plaintiff obtained, by operation of law, an automatic ownership in said forty (40) foot strip when the strip was not opened in excess of 21 years, at a minimum, she obtained to center of the strip or 20 (20) foot wide. See Rahn v. Hess, 106 A.2d 461 (1954). 26. Defendant Bolger's attempt to invest ownership in this forty (40) foot strip, through a fraudulent quiet title action, has deprived the Plaintiff of her rightful ownership interest in the said property. 27. Plaintiff has a superior interest in the property in that she has obtained interest to the entire strip by adverse possession having been continuously and notoriously in possession of the same adversely to the world for a period in excess of 21 years through her use and that of her predecessor in title. COUNTI EJECTMENT 28. Paragraphs 1 through 27 are incorporated herein by reference. 29. Despite Plaintiffs repeated requests Defendant has refused to withdraw his filed subdivision plan which plan interferes with Plaintiffs lawful use of her property in fee simple. WHEREFORE, Plaintiff requests this Court to enter a judgment in her favor and against Defendant Bolger for possession of the real property described above and enter an order directing Defendant to remove himself and his plan from said property. COUNT 11 TRESPASS 30. Paragraphs 1 through 29 are incorporated herein by reference. 31. As a result of the maintaining of the quiet title action and subdivision plan referenced above, Defendant has deprived Plaintiff of her use and enjoyment of the property and a damage in an amount to be determined. 32. As a result of the unlawful and fraudulent actions of the Defendant, Plaintiff has been required to expend legal fees and other costs to her detriment. WHEREFORE, Plaintiff requests this Court to enter judgment in her favor and against Defendant Bolger for money damages in an amount in excess of $25,000.00 as well as payment for legal fees, costs and any other damages justly compensatable to Plaintiff. COUNT III QUIET TITLE 33. Paragraphs 1 through 32 are incorporated herein by reference. 34. As alleged above and incorporated herein, Plaintiff has been, by herself and her predecessors in interest, in the actual, exclusive, continuous, visible, notorious in adverse possession of the property above described continuously for an excess of 21 years prior to the filing of this Complaint, claiming to own the same in fee against the whole world and has utilized the property continuously for said period. 35. Defendant's assertion of a quiet title claim in his case referenced above was a fraudulent attempt to obtain the property without due process, without notice and his interest, if any, is inferior to that of Plaintiff. WHEREFORE, Plaintiff requests this Court to order Defendant, his heirs and assigns to be forever barred from asserting any right, claim, lien, title or interest to said parcel inconsistent with the interest of Plaintiff and to award Plaintiff costs, fees, attorney's fees and any other damages felt appropriate by the Court. COUNT IV FRAUD AND MISREPRESENTATION 36. Paragraphs 1 through 35 are incorporated herein by reference. 37. Defendant Bolger, by prosecuting a quiet title action and not properly notifying Plaintiff of his intentions, did purportedly obtain the property by fraud and misrepresentation which fraud and misrepresentation should now allow the property to be reverted to Plaintiff. WHEREFORE, for all the above reasons, Plaintiff, Nancy L. Wheaton, requests this Court to find in her favor and against Defendant, order the transfer of the strip of property referenced above to Plaintiff in fee by Defendant and further to bar Defendant from asserting any right, title, claim or interest in said property and to pay Plaintiff her legal fees and other costs and damages as to be determined by the Court. ?A?0/ Date Respectfully Submitted TURD LAW OFFICES AP, Ron Turo, Esquire 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff I, Ron Turo, Esquire, attorney for the Plaintiff herein, verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, based upon information received from the Plaintiff. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. 9z Date Ron Turo, Esquire ri NANCY L. WHEATON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-5396 CIVIL TERM SCOTT A. BOLGER, ; CIVIL ACTION - EQUITY Defendant ACCEPTANCE OF SERVICE I, Scott Bolger, Defendant in the above-captioned action, hereby accept service of the Complaint filed on September 2, 1999, in the Court of Common Pleas of Cumberland County, Pennsylvania. c Date Sco ' olger = rte ?` r_ i ;! L: tJ v ,:l ._ ?. 1 -? J i; NANCY L. WHEATON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-5396 CIVIL TERM SCOTT A. BOLGER, : CIVIL ACTION - EQUITY Defendant PRAECIPE TO THE PROTHONOTARY OF SAID COURT: Please settle, discontinue and mark satisfied the above-captioned matter on behalf of the Plaintiff. Submitted OFFICES /okh?_ Date Ron Turo, Esquire' 32 South Bedford Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff O G:- ' Cf . ?- .. t'. ( ." (. •-. ` ?<. C.- i: Cis _ i '<.T,"i