HomeMy WebLinkAbout01-6131IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
RICHARD L. MOYER and
JEAN C. MOYER, his wife,
Plaintiffs
VS
FREDERICK L. MADEIRA and
CAROLYN G. MADEIRA, his wife
Defendants
: CIVIL ACTION- LAW
: ACTION TO QUIET TITLE
TO: FREDERICK L. MADEIRA and CAROLYN G. MADEIRA, his wife
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 Petition or for any other
claim or relief requested by Petitioner. 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.
COURT ADMINISTRATOR
Third Floor
Cumberland County Court House
Carlisle, PA 17013
Telephone: 717 240-6200
IN TIKE COUI{T OF COMMON PLEAS OF
CUNIBEPJ~ND COI/NTY, PENNSIrLVANIA
RICHARD L. MOYER and
JEAN C. MOYER, his wife,
Plaintiffs
VS
FREDERICK L. MADEIRA and
CAROLYN G. MADEIRA, his wife
Defendants
: CIVIL ACTION - LAW
·.
: NO. OI-
: ACTION TO QUIET TITLE
:
COMPLAINT
Plaintiffs l~ichard L. Moyer and Jean C. Moyer, his wife are
adult individuals residing at 411 West Main Street,
Shiremanstow-n Borough, Cumberland County, PA 17011.
Defendants Frederick L. Madeira and Carolyn G. Madeira, his
wife are adult individuals resi~ing at 305 Chestnut l~idge
Drive, Mechanicsburg, PA 17055.
Plaintiffs are the ov~ners of premises known as 411 West Main
Street, Shiremanstown, Pennsylvania, having acquired title to
the said premises on June 15, 1999, by deed from the Estate
of Mabel Hess which deed is recorded in Cumberland County
Deed Book 202, Page 4 and a Corrective Deed dated October
22, 2001 and recorded in Cumberland County Deed Book 248,
Page 4482; which premises a~e bounded and described as follows:
TP~ACT NO. 1
ALL THAT CERTAIN tract of land situate in the Borough of
Shiremanstown, County of Cumberland, Commonwealth of
Pennsylvania, more particularly bounded and described as follows,
to wit:
BEGINNING at a point in the center of Main Street, formerly
Simpson Road, at the southwest corner of lands of Hans C.
Peterson and Mabel Orr Peterson, his wife, said corner being seven
hundred fifty (750) feet west of a pin in the center of Main Street,
the corner of lands now or late of Minnie A. Rupp;
thence along the center line of Ma&u Street, formerly Simpson
Road, a distance of one hundred ninety-two (192) feet to a point;
thence North eleven (ll) degrees zero (0) minutes West, a
distance of one hundred forty-six and eight tenths (146.8) feet to a
point at line of lands now or late of Lebanon Vs.11ey College;
thence by said last mentioned lands, North fifty-eight (58) degrees
fifty (50) minutes East, a distance of two hundred seven and
thirty-two hundredths (207.32) feet, more or less, to a point at the
line of lands now or late of Hans C. Peterson and Mabel Orr
Peterson, his wife;
thence by said last mentioned lands, South fourteen (14) degrees
zero (0) minutes East, a distance of two hundred eleven and three
tenths (211.3) feet to a point, the Place of BEGINNING.
SUBJECT, HOWEVER, to the restrictions set forth in Cumberland
County Deed Book F-15, Page 596.
LESS, HOWEVER, _AT,L THAT CERTAIN piece or parcel of land
situate in the Borough of Shiremanstown, C~raberland County,
Pennsylvania, bounded and described as follows, to wit:
BEGINNING at a point on the north side of NI,.tr~ Street, formerly
Simpson Road, at the southeast corner of land of David Smith and
Carolyn Smith, husband and wife, said corner being seventy-nine
and fifty-fou~ one-hundredths (79.54') feet in an eastwardly
8t~'ection from the east side of West Avenue;
thence along said ;and of David Smith and Carolyn Smith, husband
and wife, North 13 degrees 41 minutes 14 seconds West, one
hundred six and thirty-six one hundredths (106.36') feet to an
iron pin;
thence along land formerly of Lebanon V~.lley College, now of
Shirema~stov~n Baptist Chtmch, North 55 degrees 50 minutes 00
seconds East, eighty-four and eight one-hundredths (84.08') feet
to an iron pin;
thence along other land of Lester M. Hess and Mabel E. Hess,
husband and wife, South fourteen degrees 00 minutes 00 seconds
East, one hundred thirty-three and eight-tenths (133.8') feet to a
point on the north side of West l~iaLu Street, aforesaid;
thence along the north side of West Main Street, South 76 degrees
00 minutes 00 seconds West, eighty and zero one-hundredths
(80.00') feet to a point at the corner of land of David Smith and
Carolyn Smith, husband and wife, the place of BEGINNING.
TRACT NO. 2
~TJ. THAT CERTAIN tract of land situate in the Borough of
Shiremanstown, County of Cumberland, Commonwealth of
Pennsylvania, more particularly bounded and described as follows,
to ~-it:
BEGINNING at an iron pin set on the north right-of-way line of
West Ms.In Street at the deed line of premises of l~ichard L. Moyer
and Jean C. Moyer, his wife;
thence along same North fourteen degrees West, the distance of
171.30 feet to a point at line of lands of Bible Baptist Church;
thence along same, North flity-seven degrees twenty-nine minutes
eighteen seconds East, the distance of 10.55 feet to a point;
thence along lands of Frederick L. Maderia and Carolyn G.
Maderla, his wife, South fourteen degrees East, the distance of
174.65 feet to a point on the north right-of-way line of West Main
Street;
thence along same, South 76 degrees West, the distance of 10.00
feet to the point and place of BEGINNING.
CONTAINING 1730 square feet of land.
P]~.lutiffs aver that the Defendants own the property adjoining
the lands of Plaintiffs on the east with the deed for the lands
of Defendants having been recorded on April 9, 2001, in
C~raberland County l%ecord Book 242, Page 459.
The la~ds of P]~.tutiffs are improved with a one story dwelllug
house with attached garage and also a detached three car
garage.
In May of 2001, P]~.iutiffs observed survey work being done by
a surveyor for the Defendants, which indicated that the west
property line of the lands of Defendants was further west than
had been reputed to the P]~.tutiffs at the time they purchased
their property and which line was close to or upon the
driveway of the P]~.~utiffs as constructed and n0~.tuts.tued by
their predecessor in title for more than 21 years.
Defendants never produced a su~ey Plan to the P1s.~utiffs
showing any encroachment.
Defendants subsequently proceeded to commence construction
of a dwelling upon the property at 409 West M~.~n Street.
Pl~.~utiffs then commissioned and obtatued a survey of their
property which survey and plan was completed on or about
NIay 16, 2001, which survey is attached hereto as Exhibit A,
and which is hereby made a part hereof.
10. P]~.~utiffs aver that the survey discloses that a substantial
portion of their drivewa~v ~nd east end of their brick garage
have been erected across the east property boundary Hne of
the premises described in the deed of the P]~tutiffs, as is
depicted upon the survey plan marked Exhibit A.
ll.
Platutiffs have investigated the facts and circ~rastances
regar~tug the property which they oven and occupy and have
learned that their predecessors in title constructed both the
driveway and detached garage more than 21 years prior to
1999, when the property was conveyed unto P]atutiffs.
12.
13.
Neither the Defendants nor their predecessors in title nor any
other individuals ever questioned the ownership or possession
of Lester M. Hess and Mabel E. Hess, his wife, who owned the
land prior to the PIs.thrifts of the lands now owned and
n~s.tr~ts.tr~ed by P]s.tutiffs from February 20, 1953, until June
15, 1999.
Plaintiffs aver that they and their predecessors in title
n0s.tuts.tued not only the area where the garage was erected
and where the driveway was paved, but also maints.tned an
area running from Ms.~u Street north to the lands of Bible
Baptist Church east of the garage and driveway, by mowing
the grass, storing b~lding materials and nss.~uta~uing said
area as part of the premises known as 411 West Ms.lu Street,
Shiremanstown, Pennsylvania, which premises are described
as follows:
AT,T, TI:I_&T CEI~TAIN tra~t of land situate in the Borough of Shlremsmzstown,
County of Cumberland, Commonwealth of Pennsyl~, more psmtlc,~l~.w]y
bounded and described ms follows, to wit:
BEGINNING at an Yon pin set on the north rlght-of-wsjV line of West Main
Street at the deed line of premises of Rlchard L. Moyer and Jean C. Moyer, his
wife;
thence along same North fourteen degrees West, the distance of 171.30 feet to a
point at line of la~ds of Bible Baptist Church;
thence along same, North ~kf~y-seven degrees twenty-nlue mluutes eighteen
seconds East, the distance of 10.§5 feet to a point;
thence along lands of Frederick L. Maderl~ and Carolyn G. Ma~lerla, his wife,
South fourteen degrees East, the distance of 174.6§ feet to a point on the north
right-of-way line of West Main Street;
thence along s~.me, South 76 degrees West, the distance of 10.00 feet to the
point and place of BEGINNING.
CONTAINING 1,730 sq~.~e feet of land.
14.
E~.tutiffs aver that by reason of the long-stan~ttug
unchallenged possession and occupation of the lands here
identified, Plaintiffs have acquired ownership by adverse
possession of the said strip of land ten feet in width adjoining
the lands described in Paragraph 3 herein on the east and
running north of that width from M~.tu Street to the lands
now owned by Bible Baptist Church and which are described
in Paragraph 13 herein.
WHEREFORE, Pl~.tutiffs respectfl~lly request that the Court
enter an Order declaring that they are the owners in fee simple of
the lands described in Paragraph 13 herein, free and clear of any
and all right, title, interest, clal~u or demand of the said defendants
Frederick L. Madeira and Carolyn G. Madeira, and further
er~oining the said Frederick L. NIadeira and Carolyn G. Madeira, his
wife from denying, impeaching or in any way attacking the
premises.Pl~'~utiffs' ownership of the said ~/be~~G ~
. l~ad~bach, Esq~!re
107 Locust Street
Harrisburg, PA 1710111
717-234-6655
Attorney for Pl~.i~tiffs
ID# 19255
We verify that the statements made in this Complaint a~e true a~ud
correct. We understa~ud that false statements herein a~e made subject
C.S.A. §4904 relating to unsworn
to the penalties of 18 Pa.
falsification to authorities.
Dated: October 25, 2001
l~ICI~O L. i~'OY~R,
~ c. MOYE~ 0
SHERIFF'S RETURN -
CASE NO: 2001-06131 p
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MOYER RICHARD L ET AL
VS
MADEIRA FREDERICK L ET AL
REGULAR
HAROLD WEARY , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT -QUIET TITLE was served upon
MADEIRA FREDERICK L
the
DEFENDANT , at ~913:00 HOURS,
at 305 CHESTNUT RIDGE DRIVE
on the 31st day of pctober , 2001
MECHANICSBURG, PA 17055
CAROLYN G MADEIRA, WIFE
by handing to
a true and attested copy of COMPLAINT -QUIET TITLE together with
and at the same time directing Her attention to the contents thereof.
Sheriff,s Costs:
Docketing 18.00
Service 5.85
Affidavit .00
Surcharge 10.00
.00
33.85
Sworn and Subscribed to before
me this 9 -~ day of
~, ~/ A.D.
~Prothonot ary '
So Answers:
R. Thomas Kline
11/01/2001
ROBERT F RADEBACH
By:
~ y -~herif f~
SHERIFF'S RETURN - REGULAR
CASE NO: 2001-06131 p
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MOYER RICHARD L ET AL
VS
MADEIRA FREDERICK L ET AL
HAROLD WEARY
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT -QUIET TITLE was served upon
MADEIRA CAROLYN G
the
DEFENDANT
, at 0913:00 HOURS,
at 305 CHESTNUT RIDGE DRIVE
~ECH~NICSBURG, PA 17055
CAROLYN G MADEIHA
on the 31st day of October 2001
by handing to
a true and attested copy of COMPLAINT -QUIET TITLE together with
and at the same time directing Her attention to the contents thereof.
Sheriff.s Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this _9'-~L~ day of
~*t-e'~','~4~ . ,:;~ t' A.D.
~ /Pr0thonota~y ~'
So Answers:
R. Thomas Kline
li/Oi/200i
ROBERT G RADEBACH
By:
Deputy 'Sheri ff~
MARLIN R. M¢CALEB
RICHARD L. MOYER and
JEAN C. MOYER, his wife,
Plaintiffs
VS.
FREDERICK L. MADEIRA and
CAROLYN G. MADEIRA, his wife,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 01-6131 Civil Term
: ACTION TO QUIET TITLE
DEFENDANTS' PRELIMINARY OBJECTIONS
AND NOW come the Defendants, Frederick L. Madeira and
Carolyn G. Madeira, his wife, by and through their attorney,
Marlin R. McCaleb, Esquire, and preliminarily object to
Plaintiffs' Complaint as follows:
LEGAL INSUFFICIENCY OF PLEADING (DEMURRER)
1.
To acquire land by adverse possession, a claimant must
prove actual, distinct, exclusive, visible, notorious,
continuous and hostile possession of the land for a period of
twenty-one (21) years.
2.
According to Paragraph 3 of the Complaint, Plaintiffs
acquired title to their land by deed dated June 15, 1999,
recorded in Cumberland County Deed Book 202, Page 4, so that
their use and possession of the disputed land, if any, has been
for less than three (3) years.
3.
The deed by which Plaintiffs acquired title to their
property, incorporated by reference into Paragraph 3 of the
Complaint, does not include the disputed land within its
description, so that said deed did not convey to Plaintiffs any
LAW OFFICES
MARLIN R. MCCALEB
title or inchoate interest of their predecessors in and to the
disputed land.
4.
The corrective deed dated October 22, 2001, also
incorporated by reference into Paragraph 3 of the Complaint, is
a nullity because the §rantor in said corrective deed did not
then own any title to or interest in the lands therein
described and therefore had nothing to convey and because it
was executed and recorded after Defendants acquired their
property and therefore cannot affect Defendants' title to
their property.
5.
For the foregoing reasons, Plaintiffs are not in privity
with their predecessors in title as to the disputed land and
cannot tack their predecessors' use and possession of the same,
if any, for purposes of adverse possession.
6.
For the foregoing reasons, Plaintiffs fail to state a
cause of action for adverse possession of land.
WHEREFORE, Defendants respectfully request your Honorable
Court to dismiss the Complaint./ ~ ,~/ ~/,7
Date: November /~, 2001
Marlin R. McCaleb, Esquire
Attorney I.D. No. 06353
219 East Main Street
Mechanicsburg, PA 17055
(717) 691-7770
FAX: (717) 691-7772
Attorney for Defendants
LAW OFFICES
MARLIN R McCALEB
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the
within Defendants'
Plaintiffs herein,
by depositing same
at Mechanicsburg, Pennsylvania, postage prepaid,
addressed as follows:
Robert G. Radebach, Esquire
107 Locust Street
Harrisburg, PA 17101
Preliminary Objections was served upon the
or their attorney, on November /~, 2001,
in the mail at the United States Post Office
properly
Marlin R. McCaleb
-3-
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and sutmitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please ]~st the wit_h_in matter for the next Ar~3ument Court.
CAPTION OF CASE
(entire caption must be stated in
RICHARD L. MOYER and
JEAN C. MOYER, his wife,
FREDERICK L. MADEIRA and
CAROLYN G. MADEIRA, his wife,
(Plaintiff)
(Defendant)
No. 01-6131 Civil Term 19
State matter to be ar~3ued (i.e., plaintiff's motion for new,trial, defendant,s
d~m~&=r to c~,%,lalnt, etc.):
Defendants' Preliminary Objections to Plaintiffs' Complaint
2. Identify counsel who w~ I 1 arc3ue case:
(a) for pi aintLff:
;u~vess:
Robert G. Radebach, Esquire
107 Locust Street
Harrisburg, PA 17101
(b) for defendant:
Address:
Marlin R. McCaleb, Esquire
219 East Main Street
Mechanicsburg, PA 17055
3. I wJll notify~l] parties in writingwithin t~odays that this case has
been ]~ted for arc3anent.
4. A-~t C~ Date:
December 12, 2001
D~ted: November /~ , 2001
Attorney for Defendants
RICHARD L. MOYER and
JEAN C. MOYER, his wife,
PLAINTIFFS
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
FREDERICK L. MADEIRA and
CAROLYN G. MADEIRA, his wife,
DEFENDANTS : 01-6131 CIVIL TERM
IN RE: DEFENDANTS' DEMURRER TO PLAINTIFFS' COMPLAINT
BEFORE BAYLEY. J. AND HESS. J.
AND NOW, this _.~__ day of January, 2002, the preliminary objection of
defendants in the form of a demurrer to plaintiffs' complaint, IS GRANTED. Plaintiffs'
complaint IS DISMISSED.
Robert G. Radebach, Esquire
For Plaintiffs
Marlin McCaleb, Esquire
For Defendants
:saa