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No. 313 January Term, I9 ~~ METROPOLITAN EDISON COMPANY 1 Decree Appeal from the ~t . Court of Camman Pleas RUSSELL L. SHILLI'IO arad RUSSELL F. GRIEST, ESQ. , for the County of Cumberland No. 1, MaxM;'~ Term, 19 66, Ira Equity PRELIMINARY INJUNCTION) April 1$, 1966 - Appes.l filed. September 16~ 1966 - :~'etik:ian of Appellee tic Dismiss the Appeal, filed. O R D E R 9~28/~". - Pe~.it~.c~n granted. Per Curiam. True Copy From Record ~IIY ~P~t[tTCOTCp ~~JC~EO~, Y have hereunto set my hand and the seal of said Court, at Philadelphia, this 5th ___ October I9 66 - ,e~ day of ,:~..~ ", Prothonotary. ,_~, e d H !°°I H jy x trJ ti ~~ . ~ ~ U] H t~ ~r yr 4 • ~~ ~ H . ~ v 0 b ~ N ¢ ~ ~ ~ ~ ~ rii t~ H `~ b 0 r H d 1-i Cn O c~ ~ ~~ o O • ~ v ~ ~ ~n ~, rt d ~' ~ ~ ~ -~ ,y ~N C 7 ~ ` ~,~ O ~ ~ A ~ I ~ ~ ! 'f- ' ~ j y e c~ ~ j ~ ~ ~ i : o~ N• ~ e+ ,v i~~ ~~ (,,~~ ~; 'tea ~ • - •~~• Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Cumberland in the Commonwealth of Pennsylvania to No. 1 March Term, 19 66 is contained the followirug: COPY of DOCKET ENTRY Myers, Metropolitan Edison Company April 5, 1966, Complaint in Equity filed, Myers & returnable within twenty (?0) days from date of Flower, 1 vs. service hereof. Ryan & April 5, 1966, Injunction affidavits filed. Russell Russel L. Shillito and April 5, 1966, Order of Court filed. x.6.50 Russell F. Griest, Esq. And now, March 31, 1966,. at 10:00 o'clock Entd. Apri_2 5, 1966 A. M., E. S. T., James D. Flower, Esquire, and T. & E. 6.50 Samuel B. Russell, Esq~:ire, Attorneys for Co. .50 Metropolitan Edison Company, having presented " 2.00 Complaint in Equity a.nd having served copy " 2.00 thereon on defendants, Russell I,. Shillito and " 2.00 Russell F. Griest, Esquire, and having requested " 2.00 hearing, " Pd. 5/1/66 5.00 It is ordered and d irected that hearir~~ o.n request for Preliminary Injunction in this matte be held at 10:00 o'clock .A. M,, E. S. T., April 6, 1966, in Court Room No. 2, Court House, Carlisle, Cumb. Co. Pa., the parties and/or counsel having been notified of this date of said hearing and in the presence of counsel for Plaintif and Russell F. Griest, Esquire a.nd John M, Eakin, Esquire, Attorneys for Defend t. By the Court, Clinton R. T~nreidner, J. April 8, 1966, Order of Court filed. And now, April 6, 1966, a.t 11:00 o'clock, A. M., E. S. T., hearing fixed fo Friday, April 8, 19b6, at 10:00 o~clock, A. M., E. S. T., is continued to Saturday April 9, 1966, at 9:00 o'clock, A. M., E. S. T. By the Court, Clinton R. Weidner, J. April 11, 1966, Reply to New Matter and Answer to Counterclaim filed. April 11, 1966, Order of Court, filed. And now, April 9, 1966, at 11:55 o'clock, A. M., E. S. T., upon request of counsel for plaintiff and defendant, the submission of ~•~ritten briefs is waived and the matter is immediately argued orally only. By the Court, Clinton R. Weidner, J. April 11, 1966, Order of Court filed. And new, to w it, April 11, 1966, at 11:00 A. M, upon cis ideration of the Complaint in Equity filed in the above matter and the injunction affidavit filed therewith, the Court being of the opinion that, on the facts alleged in the Complaint and affidavits, irreparable loss and damage has resulted and will continue to result to the plainti ~' ±herein and that bodily harm to agents and employees of plaintiff and its contractors and damage to prop erty of ~ plaintiff and itu contractors may take place unless injunctive relief is grante a preliminary injunction is hereby granted enjoining and restraining the defer d is from engaging, or encouraging or aiding and abetting: (A) threats or attempts t-o kill, shoot or physically harm agents, servant and employees of plaintiff and its contractors, (B) threats or attempts to damage property of plain tiff and its contractor (C ) other forms of molestin g, obstructing or interfering with plai rti ff, its contractors, agent=, servants and employees, in entering upon and exercisin plaintiff's rights within the right of way easements ~rhich Here tre subjects of the proceedings docketed to Nos. 776 and 777 February Term, 1 966. Bond with sufficient sureties to be filed ir. the amount of $2500.00, or contd. on page No. 167 No. 1 March Term 1966 Contd. in lieu thereof, legal tender of the United States in like amounttA be deposite with the Prot honotary to be held by him upon the conditions provided for in Pa. R.C.P. 1531 (>3). This injunction shall continue to and including May 28, 1 966 and a Motion for its continuance thereafter sh all be heard by the Court on May 25, 1966, at 10:00 A. M. in the Court House in Carlisle, Pennsylvania. By the Court, Clinton R. Weidner, J. April 11, 1966, Answer of Russell_ F. Griest filed. April 11, 1966, Answer of Russell. L. Shillito filed. April 11, 1966, Petition to A mend answer and Order of Court filed. And now, the 6th day of April , 1966, at l0:1a5 o'clock, A. M., E. S. T., leaf e is granted to the defendants to -`file an amended answer to the plaintiff's complai t. Said answer to be filed imr~.ediately upon the signing o_f this order. I By the Court: Clinton R. Weidner, J. April 11, 1966, Affidavit of Service filed. i State of Perr.sylvania ) SS: County of Cumberland ) James D. Flower, being duly sworn according to law, deposes and says that o March 31, 1966 at 10:30 o'clock A. M., he duly served upon Russell F. Griest, Esp., and at 11:00 o'clock A. M. upon Russell L. Shillito, the above defendants, each a copy of the ComplGint. in Equity endorsed with notice to plead within twenty (20) days, by handing the same t o the said Russell F. Griest, Esq., and Russell L. Sh lito. (Affidavit attached) James D. Flower ' April 1.1, 1966, Amended Answer to Defendants Shillito and Griest filed. I April 12, 1966, Injunction Bond and Order filed. Bond approved, April 12, 1966. By the Court: Clinton R. Weidner, J. April 13, 1966, Amended Order of Court filed. And now, April 13, 1966, at 11:00 o'clock, A. M., E. S. T., upon consi_derat' n of the evidence presented at hearings on plaintiff's request for a preliminary injunction ir. the above mat',er, the Court being of the opinion that irreparable oss and damage will result to plaintiff unless injunctive relief is granted, a prelimunary injunction is hereby granted enjoining and restraining the defers dant from enga~ ng in, or encouraging or aiding and abetting: (A) threats or attempts to kill, shoot or physically harm agents, servants and employees of plaintiff and its contractors, (B) threats or attempts to damage property of plaintiff and its contractor , (C) other forms of molesting, obstructing or interfering ~*ith plaintiff, i s contractors, agents, servants and employees, in their entering upon, using and occupying the right of way easements which were the subjects ofthe proceedings docketed to Nos. 7?6 and 777 February Term, 1966. Bond with sufficient sureties to be filed by plaintiff in the amount of $250C.00, upon the conditions provided in Pa. R. C. P. 1531 (B). This injunction shall continue to and including June 20, 1966, and a motion for its continuance thereafter shall be heard by the Court on June 13, 1966, at 10:00 o'clock, A. M,, in the Court House in Carlisl e, Pennsylvania. Further, defendants counterclaim is dismissed. By the Court, Clinton R. Weidner, J. April 27, 1966, Certiorari filed. The Supreme Court of Pennsylvania, ) SS. Eastern District ) City and County of Philadelphia The Commonwealth of Pennsylvania. To the Judges of the Court of Comrr:on Pleas, for the County of Cumberland Contd. on Page No. 168 Preliminary No. 1 March Term 1966 Contd. Injunction Greeting: We being willing for certain causes, to be certified of the matter of the appeal of Russell L. Shillito and Russell F. Griest, Esq. from the Decree of your said Court at No. 1 of March Term, A. D. 1966 in Equity, wherein Metropolit n Edison Company is plaintiff and Russell L. Shillito and Russell F. Griest, Esq. a e defendants before ,you, or some of you, depending, do comr:-:and you, that the recor and proceedings aforesaid, with all things touching the same, before the Justice of our Supreme Court of Pennsylvania, at a Supreme Court to be holden at Philadelphia, in and for the Eastern District, the fifth Monday of May next 1966 so full and entire as in your Court before you they remain, you certify and send, together with this writ, that we may further cause to be done there upon that whi h of right and according t o the laws of the said Commonwealth ought. ~ • • . ~- Witness the Honorable John C. Bell , Jr. , Chief Justice of our said Supreme Court, at Philadelphia, the eighteenth day of April in the year of our Lord one thousand nine hundred and sixty-six Seal Patrick N. Bollinger, Prothonotary biay 2, 1966, Notice of appeal and acceptance of service by Judge of the Court below filed. May 2, 1966, service of the foregoing notice is hereby accepted. Clinton R. Weidner May 3, 1966, Notice of appeal and acceptance of service by appellee or his counsel filed. May ?., 1966, service of the foregoing notice i_s hereby accepted. Samue7_ B. Russell, Harold J. Ryan, James D. Flower, Myers, Ayers & dower Aay 19, 1966, Notes of Testimony filed. June 13, 1966, Stipulation of Counsel filed. It is hereby sti:.ulated and agreed that the preliminary injunction issued in the above case shall continue until such time as the appea 1s filed in this case and from the order of the P. U. C. granting a certificate of public convenience are determined by the appellate courts, after which, on motion of either party, the Court shai.l set a date for further proceedings in accordance with an order of Court to be made. John M. Eakin, Att~~. for Russell L. Shi1_?_ito Ayers, Myers & Flower & Johnson, Attys. for i~`etropolitan Edison Cor-pany, by James D. Flower * • ~ • ~ • • Commonwealth of Pennsylvania County of Cumberland ss I, Glenn R Farner Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Metropolitan Edison Company, is Plaintiff, and RuS s 1 ; L Shill ito et al ar e Defendants as the same remains of record before the said Court at No. ~ of March Term, A.D. 19 66 In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Gourt this J L day of ^e tember A D., 19 66 Prothonotary I, Hon Dal e F Shughart President Judge of the ninth Judicial District, composed of the ~~di~It4XXXX__ ounty of Cumberland __ do certify that Gl~h ;~. Farner , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cu~herland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are i due form o 1 w and made by the proper officer. ~- Pnesident Judge Commonwealth of Pennsylvania County of Cumberland ~ I, Glenn R. Farner ,Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Dale F Shu~hart by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified ; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Coux•t this f ~ day of September ~D, 1g 66 Prothonotary w m 0 0 o d ~ o ~, ~ z 0 o ~ ~ ~ r ,,y ~, -~ v o ~ ~ ~ ~i METROPOLITAi•~ EDISOTV COi'~1PAT3Y, . Plaintiff vs. RUSSELL L. SHILLITO and RUSSELL F. DRIEST, ESQ., Defendants Iid THE COURT OF COT~'~i0i1 PLEAS OF CUP~IBERLAI~ID COUTITY, PETvidSYLVAi~dIA SITTIT~tG IN EQUITY Tdo. ~ f"Y''~=~rv~/• Term, 1966 C 0 I~1 P L A I N T TO THE I30NOIZArsLE, THE JUDGES OF SAID COURT: Metropolitan Edison Comva.ny, the Plaintiff above named, respectfully represents that: 1. Plaintiff is a public utility company organized and existing under the laws of the Commonwealth of Pennsylvania, having its principal office in iluhlenberg Township, i3erks County, Fennsyylvania. ~ 2. Defendant Russell L. Shillito resides at York Spring, R. D. 1, Pennsylvania, and is the owner or reputed owner of two certain tracts of land in Monroe ToGmship, Cumberland County*, Pennsylvania, said land being more fully described in the glans which are part of Exhibit A Tr~hich is attached hereto and made a part hereof. ~ 3. Defendant Russell F. Driest, Esq., resides in ~-lellsville, Penns~~lvania, is an attorney at law having his office at 128 East King Street, York, Pennsylvania, and is attorney for Defendant Russell L. Shillito. 4. Plaintiff has the charter right to construct, operate and maintain electric facilities in Monroe Toc•~nship, Cumberland County, Pennsylvania. 5. Plaintiff, by virtue of the Act of May 8, 1889, P.L. 136, as amended and supplemented, 15 P.S. 1181 et seq., is vested with the power of eminent domain to acquire, inter alia, facilities for the transmission of electric power. 6. Plaintiff, desiring easements across, over and • - 2 - • ~ through the aforesaid tracts of land for the purpose of constructing, operating and maintaining an electric transmission line and being unable to agree with Defendant Russell F. Shillito as to the price to be paid therefor, took action pursuant to the aforesaid Act of 'i~iay 8, 1889, P.L. 136, as amended and supplemented, to initiate the condemnation and appropriation of the necessary easements and to secure from the Pennsylvania Public Utility Commission a certi- ficate of public convenience evidencing said Commission's approval of the exercise of the power of eminent domain by Plaintiff in condemning and appropriating the subject easements. 7. Attached hereto, marked Exhibit A and made a part hereof is the condemnation resolution duly adopted by Plaintiff's Board of Directors on September 25, 1964, with respect to the subject easements. 8. A certificate of public convenience and order was issued by the Pennsylvania Public Utility Commission at Applica- tion Docket Ne. 91664 under date of January 17, 1966, evidencing its approval of the exercise by Plaintiff of the power of eminent domain in acquiring the subject easements, a copy thereof being attached as Exhibit 2 to each of the Petitions for Approval of Bond in Eminent Domain Proceeding which were docketed in the above Court to Pdos. 776 and 777 February Term, 1966, said Exhibits 2 being incorporated herein by reference and made a part hereof . 9. Defendant Russell F. Shillito has taken an appeal to the Superior Court of Pennsylvania from the aforesaid order of the Pennsylvania Public Utility Commission and his accompanying!, petition for a supersedeas was dismissed and the supersedeas refused by per curiam order of the Superior Court dated February 14, 1966. 10. On January 26, 1966, Plaintiff, pursuant to the ~ • r • - 3 - • • provisions of Section 41 of the P.ct of April 29, 1874, P.L. 73, as amended, 15 P.S. 482, and Section 1 of the Act of June 25, 1885, P.L. 181, as amended, 40 P.S. 831, endeavored to tender to Defendant Russell F. Shillito its condemnation bonds relating to the aforesaid easements, and Defendant would not accept the said bonds. 11. Or. February 1, 1966, after notice to Defendant Russell F. Shillito, Orders were entered by your ~lonorable Court in the aforesaid proceedings docketed to I1os. 776 and 777 February Term, 1966, approving the aforesaid condemnation bonds relating to the subject easements. 12. Upon the aforesaid approval of said condemnation bonds by your Honorable Court, title to the subject easements passed to Plaintiff, and Plaintiff's right to enter upon the subject rights of way for the purposes set forth in the aforesaid condemnation resolution thereupon commenced. 13. Subsequent to the ar~proval of the aforesaid condemna- tion bonds, Plaintiff acting by and t'nrough its contractors, agents, servants and employees endeavored to go upon, use and occupy the subject right of way easements acquired by it across the aforesaid. land of Defendant P.ussell L. Shillito. 14. Upon learning that Plaintiff acting through its contractors, agents, servants and employees was about to enter upon one of the aforesaid rights of way, Defendant Russell F. Griest, Esq., stated by telephone to Plaintiff's employee while Defendant Russell L. Shillito was on another telephone listening to the said conversation which took place on I~Zarch 28, 1966 at approximately 2:00 p.m.: "I am ordering Mr. Shillito to shoot to kill if you go on his land. Do you understand that?" • ~ - 4 - 15. The following morning, March 29, 1966, at approxi- mately 11:30 a.m., Defendant Russell L. Shillito stated to Plaintiff's employee at Shillito's hereinabove described 273.14 acre farm located in Monroe Township, Cumberland County, Pennsyl- vania: "I will give you fifteen minutes to move your equipment off my land or I will shoot it full of holes. You know what my lawyer told you yesterday. I carry guns in my car." 16. Shortly thereafter on Parch 29, 1966, at approxi- mately 11:45 a.m., Defendant Russell L. Shillito said to an employee of Plaintiff and to several employees of Plaintiff's contractors (at Shillito's aforesaid 273.14 acre farm): "Don't let me catch you in here again. I hope you gat everything you want because next time there won't be any warning." 17. Plaintiff has not permitted either its, or its contractors', agents or employees to enter upon Plaintiff's afore- said rights of way across Defendant Russell L. Shillito's afore- said property since ''larch 29, 1966 in order to avoid any possible physical harm to such personnel or damage to property of Plaintiff or its contractors. 18. Plaintiff has heretofore made arrangements with its contractors and construction personnel to enter upon said rights of way for the purpose of constructing thereon the necessary structures and lines for the said electric transmission line, and; the refusal of Defendants to permit Plaintiff's contractors, agents and employees to enter upon said rights of c~.ay fcr said purpo.~~s and the threats b~:~ Defendants to kill, shoot or inflict physical injury upon persons entering upon said rights of Taa;~, and Defendants' threats to cause damage to property of Plaintiff and its contractors have caused Plaintiff unnecessary delay and expenditures of substantial sums of money in paying for the transportation of men and materials to and from saidri~hts of way ~~ahen they are prepared to work and are prevented from doing so by Defendants. .. r +r~ ;•~~A~, .• :-_ ~o,.pe;•, as ar,der the neccsrssit•~ of ~ic,;,ui: in# r .-,ht~ oC ..:,.~ ~rrpec , ,„.,~Hr r,r:d tt:rou;h cox tain tracts :>r• , ,,s°f~e1 ~ a ,~ iand i<,..:u :,,,.a i.r- ;o~~:•va ~uur si~i , , CuP~.t~erland cou,~ty t'en~nb•~ tvani~ ., for the i,ur;.~,re of locating;., ac~nstructing, operating ~r~~, maint~aiF:ini; the reran a 500riV electric trCCrle:ns.ssion line and? ues,~ite llili~.ent efforts on its dart, ,`gas not been able to acquire such r'i};hta of sxey fry ~-x~;ree~ent with the owners or reputed owners c,~f said i~rop•erty: NO~rt, THi.R1;FORE, tsE IT 1?LSCLv>rD that this Company, under it;~ cc,rporatc: dowers, subject to securing the necessary certificates cf r}uGiic convenience from the Pcsnnsylvania F'uDlf c 1)tility Cos- ~~~ gin, eater ut~on, take and ap~~ro~riate a ri~;;,t of way for tiro ;,ur•pose r,f construction, arerrrtion and maintenance of a 500 KV l3:'~(::tr~iC trransrnission lir-b witt•: the necessary towers, insulators, Y ix:ur~es, wirss, ~?rour-d wi res, overhead and underground liF~.htr.in~, i~~te~tivt: wires anti otttir spi,aratuS a,nc, equipment for the Sidic; transr,.iJr~ion ]ine, across, tinder and throuE,h the hereinafter _ecifie,. tracts of land otilneu, anu sitursted in the Crrrntnonwealtll tit E't~nnsaylvar,i.a, as folloWS t .iry,ti,t,1.J uli i:Lf'UT~:f~ UwPd1r~S A w ~! nu,~:~~i L. Snillito PRt)PERTY PFOPERTY PLA;d ftU. FcCkEAC;E -~~. ~ • a ,~ ~ ,~ :i-1944-1' 1G1.51 i~-1945-R 273.14 .~:.>~-• ._.'~.~;::t ut' way in tiie c~::se of e~~c}i of ttte aforesaid properties t--<;i n; ~,r the wir~th of ?00 feet, i .e. , l0a feet nn eithRr side of !~~.: ~:~fitNr lire (or thr~ prc~jec.tion there-c~f) crotasin~, sucft prop- ,ar•r~, ~~,:~; cwnter line beinp~, lacatr.d as set forth on the aforesaid r,u+.;,.e;~L ~,xar. of ,cuCh prod>erty ors wt.ich also aprears the t~ourlci- :+ri.#,s tllereaf, a coc,y of ea;:h Aueh 1•~lan with respect to e:~ch such -I~'~ert.v havir~~, G®en ~,reeentect to this rr.ec~tin~ ant: c:irectec: to be t i lac: w ttl the recc3rc1s of this Co~s~~-any Ar.cl G?~lnc~ incur^orated lcere~x.rr by reference; I'ilt~~Tti1.R with the rir,ht tc trian, cut anct remove by such t.:'t1~C~c]r., tls this Coraparrv may det«srr~ine such trReg and uncier;rowth c. itjrij- tiro limits of the rikht or way acrogg enc)•c of the of©res~aid f~rcglarti.es AB may be :~ecess~ary to construct, oper~3t•W ran: ~~intaiA t:re ~aiu line, to keeg, the safe: line free from interference and to ~:rot,set the same from falling tmbmr, provi~.~er:, however, that nottl.in~ tareirr contained shall tie construed as interfering; with the :rir;:.t of t:"te r»~;~r:-ctive. aro~.r~rty nc~ners and t!~Air s:.-cces~.~rs •~r~ t:1.T.rt tL cultivate t:,e i,r°our+d wltttin the lirnit3 cif t:~e right Of M~~iy cr tc~ uge the same for piny other r:urnn~e, except the construo- tiU„ of a buil~ain,; or bui t;]in~s thereon, i~rr~vided that ouch u:~e clues not interferes with thy: eonRtructi.un ~~nci maintAr.~~.nce of the 8rilu lli1~. ~ ~. ~ • Ii1JUi1CTI0ht AFFIDAVIT COh4i~lOiv~~rEALTH OF PENivSYLVAi1IA ) SS. COUV T'Y OF' BERKS ) taILLIAM R. SCHARADIIV, of the City of York, York County, Pennsylvania., being duly sTJTorn according to law, deposes and says that he is employed by Metropolitan Edison Company in the capacity! of Junior Engineer; that he is a graduate of Lafayette College with a degree of ~. S. in Electrical Engineering; that in con- nection with his work for the aforesaid Compar_y he has acted as coordinator between that Company and Stone and 6~7ebster Engineering Corporation (which is under contract with Metropolitan .Edison Company to design and supervise the construction of a 500 KV electric transmission line extending through r~7onroe Township, Cumberland County, Pennsylvania) and i-3oosier Engineering Company (which is under contract with P~letropolitan Edison Company to j construct the said 500 KV electric transmission line); that in connection ~~~ith nis said work he had occasion on Monday, March 28, 1966 at approximately 1:20 p.m. to call upon Russell L. Shillito at ~Ir. Shillito's business office located on South Baltimore Street, Dillsburg, Pennsylvania, to arrange for access by Metro- politan Edison Company and its contractors to its right of way across the hereinafter mentioned property of i'Ir. Shillito; that at that time he requested Mr. Shillito to let him have a key to a gate in the fence on property of Russell L. Shillito consisting of 273.14 acres, more or less, situate in Monroe Township, Cumber-. Land County, Pennsylvania, said gate in said fence being located along the easterly side of L.P.. 21012, a short distance south of the Yellow Breeches Creek, said gate being within the limits of the right of way heretofore condemned under date of February 1, 1966 by Metropolitan Edison Company across said property of Russell L. Shillito; that in response to his request for a key to ~ ~. • a - 2 - the above mentioned gate, Mr. Shillito said "I am not smart enough to know whether I should give you the key to the gate or not. I want to check it with Mr. Driest--maybe he caants you to go on."; Mr. Shillito then placed a telephone call to his lawyer, Russell F. Driest, Esquire, of York, Pennsylvania; Mr. Shillito stated into the telephone "Leave a message for Mr. Driest to call me as soon as he gets back. It is important."; deponent then waited in Mr. Shillito's office for approximately one-half hour; during the course of the half-hour wait, deponent conversed with Mr. Shillito and Mr. Shillito made the statement "I keep guns in my car. Some- times I am half afraid of what I might do. You guys make me so mad."; i~Ir. Shillito at approximately 2:00 p.m. on that date went into a back room at his aforesaid office; shortly thereafter Mr. Shillito's secretary beckoned to deponent to pick un the extension phone at her desk in the outside office where deponent was waiting; deponent spoke into the telephone "Is this l°Ir. Driest?"; the warty on the other end of the telephone line answered "Yes, who is this?"; Mr. Driest then asked "-ghat do you want?"; deponent, then stated "GJe would like the key to the gate on our right of way leading to Mr. Shillito's property."; Mr. Driest then stated, "Oh, you eaould, well I am ordering I~'Ir. Shillito to shoot to kill i.f you go on his land. Do ycu understand that?"; deponent repliedj, "Yes. What you are saying is that you are threatening us with an act of violence if we go on Shillito's property."; Mr. Driest replied, "Yes, and I t.ail.l slap an injunction against you and charge ycu with the costs."; deponent then hung up the telephone in the outer room of intr. Shillito's office; during deponent's aforesaid telephone conversation with Mr. Driest there was audible back- ground noise similar to that c~~hen a third warty is on the tele- phone; Intr. Shillito then emerged from the rear room and said "I guess that's it."; deponent thanked Mr. Shillito for his time and left the Shillito office; on March 29, 1966 at approximately 11:20 a.m. deponent observed personnel of Stone and Webster -t ~ • 1 w - 3 - i Engineering Corporation lift the above mentioned gate off the gate hinges and, together with that company's test boring sub- contractor, Borings, Soil and Testing Company, of Harrisburg, Pennsylvania, enter the aforesaid Shillito property within the limits of Metropolitan Edison Company's right of way; that at approximately 11:23 a.m. the truck-mounted test boring rig which had entered upon the Shillito property through the gate had started to drill at a location for a proposed electric transmission tower within Metropolitan Edison Company's aforesaid right of way at a point approximately 150 feet southeast of the gate; at approximately 11:30 a.m. Mr. Shillito arrived on the scene driving a white Cadillac sedan, parked behind the vehicle in which deponent was sitting, got out of his car,w alked over to deponent and stated "I will hive you fifteen minutes to move your equipment off my land or I will shoot it full of holes. You know what my lawyer told you yesterday. I carry guns in my car."; Mr. Shillito then left and drove south on L.R. 21012; deponent related this conversation to John A. Childrey, Division Superintendent of Stone and ti~Jebster Engineering Corporation, who then walked over to the aforesaid test boring rig and talked to the crew operating:. it; that crew then began to dismantle the rig; at approximately 11:45 a.rn. on the same date, March 29, 1966, Mr. Shillito returned with another man in his vehicle and drove through the above gate and around the test boring rig which a?as being dismantled; he stopped his car and said in the presence of the deponent aria John A. Childrey, Charles English, foreman, and John Usuka, employee, of Borings, Soil and Testing Company, "Don't let me catch you in here again. I hope you got everything you want because next time there won't be any warning."; at approximately 11:53 a.m. on that date, 1larch 29, 1966, the drilling rig left the Shillito property, the above mentioned gate was closed and Mr. Shillito again drove away in a southerly direction along II ~ ~ } • • - 4 - L.I:. 21012; the drilling rig then left the Shillito property. 6ailliam R. Scharadln Sworn to and subscribed before me .this 30th day of March, 1966. . , 7r'l Sti, ir~~~ ~~;~~ ~t ~'tl r`~` I I 1 i I i I .r • INJUNCTION AFFIDAVIT COMMOiVWEALTH OF PENNSYLVANIA ) SS. COU~JTY OF BERKS ) • a JOHN A. CHILDREY, of the Township of Upper Allen, Cumber- land County, Pennsylvania, being duly sworn according to law, deposes and says that he is employed by Stone and ~~debster Engineert ing Corporation in the capacity of Division Superintendent; that 'in connection with his work for the aforesaid Company he is super-' 'wising the construction by that Company for Metropolitan Edison :Company of a 500 KV electric transmission line extending through Monroe Township, CLUnberland County, Pennsylvania; that in connection -,with his said work he had occasion on Tuesday, March 29, 1966, at ;approximately 11:20 a.m. to supervise the removal of a gate in the' '!fence on property of Russell L. Shillito consisting of 273.14 i .acres, more or less, situate in Monroe Township, Cumberland County Pennsylvania, said gate in said fence being located along the easterly side of L.R. 21012, a short distance south of the Yellow Breeches Creek, said gate being within the limits of the right of way of Metropolitan Edison Company across said property of Russell L. Shillito; that immediately subsequent to the removal of the said gate, he escorted a truck_mounted test drilling rig owned by Borings, Soil and Testing Company of Harrisburg, Pennsylvania, a subcontractor for Stone and 6debster Engineering Corporation, over and upon the aforesaid Shillito property to a location for a pro- posed electric transmission tower at a point approximately 150 feed southeast of the aforesaid gate; that at approximately 11:30 a.m. on that day he observed a man driving a white Cadillac sedan stop along L.R. 21012 at a point near the aforesaid gate and saw that man get out of the vehicle and walk over to Williarri R. Scharadin, of ;~Zetropol..tan Edison Company, who was sitting in a i°letropolitan Edison Company vehicle parked along the easterly side of L.R. 21012 at a point near the aforesaid gate; that he saw the man who had ,, ~ 1 ~. - 2 - driven the white Cadillac converse with Psr. Scharadin a few minutes and then get back in his car and drive away in a southerly, direction along L.K. 21012; that deponent then left the drilling rig site and walked over to "'Ir. Scharadin, whereupon '~fr. Scharadin'. related to deponent the conversation he had had with Russell L. Shillito, who had been driving; the white Cadillac; that deponent then related that conversation to Charles English, foreman in charge of the borings, Soil and Testing Company drilling rig; that r~ir. English and his helper, John Usuka, thereupon began to dismantle the drilling rig; that the test drilling required to be made at the aforesaid transmission tower site had not been completed at that time; that at approximately 11:45 a.m. on that date, °Ir. Shillito returned in his white Cadillac, drove through the above ;nentior_ed gate and drove around the drilling rig which was being dismantled; that r~ir. Shillito on this latter occasion had i anoth.er man with him in the white Cadillac; that Mr. Shillito stopped his vehicle approximately 75 feet from the drilling rig and said through the window of the driver's side of the car, in the presence of deponent, the above mentioned Gilliam R. Scnaradi , Charles English and John Usuka, "Don't let me catch you in here again. I hope you got everything you want because next time there won't be any earning."; that sir. Shillito thereupon left i the premises driving south on L. P.. 21012; that at approximately ', 11:55 a.m. on that date, the drilling rig left the Shillito premises and the above mentioned gate was closed and left in the position in ~f~hich it was found. ~ ~ ~~~ '~ John Childre ~~ Sworn to and subscribed before m~ this 30th day of March, 1966. \ ' v Slit-cst- iti1iRiFeiJE L. i'f{i{:~ ~8.~ '~ot~rv Pui;lc, k-,e:ad;~;~. Ecri~s Coi.~+itYr i~l~ Gozrin;issiran Expires 4Va~~etnt,er ~(7, 1969 ~ II ~ . • i +~ • INJUi1CTIO2J AFFIDAVIT COI°1MOi~WEALTH OF PENNSYLVANIA ) SS. COUi1TY OF BERKS ) BOYD W. ARNOLD, of the Township of Monroe, Cumberland ;'County, Pennsylvania, being duly sworn according to law, deposes !;and says that he is employed by I.letropolitan Edison Company in the capacity of District rlanager, Dillsburg District; that in con- nection with his work for the aforesaid Company he had occasion on March 29, 1966 at approximately 2:00 p.m. to make a telephone !call to Russell L. Shillito at Mr. Shillito's business office on .:;South Baltimore Street, in Dillsburg, Pennsylvania; that in the ';course of that telephone conversation with Mr. Shillito he said 'to I~Ir. Shillito "I have been advised by our attorneys that we have a legal right to go on with this drilling rig and we shall. ~~~hat do you propose to do? I don't want anybody hurt."; that 'I~1r. Shillito answered "Just a minute - Hey, Russ - Arnold is on i the line and said they have a legal right to go on."; Mr. Shillito then said to deponent "Do you have a restraining order?"; deponent; replied "I don't know; I only know what our attorneys said."; ',Shillito then said to den__onent "Then, by God, you have no legal i right there, and I may be crazy but I have fought this thing so i far, I can't give up now. I don't want to hurt anyone but, by i God, you have no legal right there so someone might get hurt."• ~ deponent replied "O.K. Russ." and then hung up the phone. ~~r ~ f~ Boyd W. Arnold Sworn to and subscribed before me this 30th day of March, 1966. ~fnfarr Puhic, ;;~~;•;,;n,r, g{:~;s Cu*tu. h3. xi7}' Commission Expues N~Yer:;ber 7G, 19fi9 n METROPOLITAN EDISON COMPANY, Plaintiff . VS. RUSSELL L. SHILLITO and . RUSSELL F. GRIEST, ESQ., . Defendants . •' • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 1 MARCH TERM, 1966 SITTING IN EQUITY ORDER OF COURT AND NOW, March 31, 166, at 10:00 o'clock, A.M., E.S.T., James D. Flower, Esquire, and Samuel B. Russell, Esquire, attorneys for Metropolitan Edison Company, having presented Complaint in Equity and having served copy thereon on defendants, Russell L. Shillito and Rug=sell F. Griest, Esquire, and having requested hearing, It is ordered and directed that hearing on request for Preliminary Injunction in this matter be held at 10:00 o'clock, A.M., E.S.T., April 6, 1966, in Court Room No. 2, Court House, Carlisle, Cumberland County, Pennsylvania, the parties and/or counsel having been notified of this date of said hearing and in the presence of counsel for Plaintiff and Russell F. Griest, Esquire and John M. Eakin, Esquire, attorneys for Defendant. By the Court, ~- _ >, _ J. James D. Flower, Esquire Attorney for Plaintiff John M. Eakin, Esquire Attorney for Defendants ~ ~~ C'. ;,,,~ /~ ~ ~:~. A t . r, _~ err , a .r ~~ ~1 L~ r: Y c~ ..; ~ _ ~ -{ . ~ ~ . ~ K METROPOLITAN EDISON COMPANY, IN THE COURT OF COMMON PLEAS OF Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA VS. N0. 1 MARCH TERM, 1966 RUSSELL L. SHILLITO and RUSSELL F. GRIEST, ESQ., SITTING IN EQUITY Defendants ORDER OF COURT AND NOW, April 6, 1966, at 11:00 o'clock, A.M., E.S.T., hearing fixed for Friday, April F, 1966, at 10:00 o'clock, A.M., E.S.T., is continued to Saturday, April 9, 1966, at 9:00 O'clock, A.M., E.S.T. By the Court, -, /' / / J. James D. Flower, Esquire Attorney for Plaintiff John M. Eakin, Esquire Attorney for Defendants ~ n . ~~-; -~ i .~ p ° :~ .~• d`7'L+1. s. T «~ . - „~{ ~~ ~' 7 u~. ~ ~ • f + • + ~ ~ i'i>T'~OPOLiT 1~US ~ ~ LL I. . '~N lDISON CO~'~iPE~NY, Pla_n'ciS~f ~'S . )efendantS • • CCv T}-1r CC)LTI:T !~P CO^,iC~Ft')N PLEAS p;~ CIJI'~iF',FL.2LAND COC?N1'Y, PrN1 dS YL,Vrtll I t1 ~Cl, 1- ~ii1RCTi TE'?~'i, ic)c,i, ~iT'i iNC; iiw' E~.)[JTTY ?-~PI_,Y Tp Nr~,!\1 :<'~'iTE:R .!1AT) ~NS('1I:~ l{) CUIJNTI?'< CI.,l1Ii~I ??FPLY 'l'C) N fr1 ;r'lA'I'TET' l.. Yaragra~:lh <C1 ad. mitte4j. ~.. ?'aracara:,l~ ?1. is denied. C)n the contrary :it i.5 denied t ~t t.~;e re=,olui: i or, ; s cle ec~ i.~.jc i ra + n~3 ~_ i t cioc>s not ader;rtatel y c:ic:f .i nc t'ne 'i E'Y\,'1 ~. ucic> ':~1. ~1 r'C`d CJ{~I ~-he defE?P,daal ~ _`~~ laa-ld. t)n 1: i?P C('11`!t'~. 1r"i%, t.~?Cc~-'. re=~:o7 ut.i.on doe's ~.idec;uatei~~ dc~- ine thcz servitude r,laced <m the defencian s' land. It i.s further dE~a"?ic>d that the resr~lu~:ion :is defecti_vr~ ire ~izat thF- Y:i.,aat-(?I"_Gq;\V i5 6`Jll:ii;n t. 1'e St:1~.tli:r)r't> >LirSii.i; 0~- ~'C)`) feE:t ~r~ii'1 t.,~e %'i!?'t1.1eQ6' 7,~;~C)t,.11'T.F2nant 't (1 '.he dc'fEnc:ic"3nt5~ dWei_i-?n~} 1S i?,,~r '~ :"FC? In ~C)aral;r3')h ~~-. ~)n i:he contrary i:he ricrn~-ot`-1va;r does no? inc lude a d\\~c.ilinr~ house cr ttzc, a-t~a r:.'n.\.T~,1e cur? ilecae, not tc ire ?ess than 3t)t~) -feet, a;~purienant t'r,eretc,. Ti ic, acl':i~~.:1 4.~d t~:~t: ` 6:c sc same o}-> sections ~r:-vcz been r,lade by '?usscl l I-,. ~~h;" 1it:;, n %hE~ -~rc~ceedinc~:> -,E'nclir.cl tlefrlre t}?<> Cork;;or. 1'7eas ~.~1>ur-C of Culuti~anu Cou!"ty .-1 'F~,, 77~:~ ..~ncl ?"'7 `~ef>ruar,j Tc'?",, } ii. <t?'.f-)r1~.ai~ tl.c>y ' t > r :1,-1= -((-t)t ~: 1"1 l .l ~~~-raClT:~'l1? _ _- iT"4,' ~ldr~?-.[ 1-~.CC~ ~>i1 t: -i"CE']..\.%atl? "'J ; Titi,~;c' ~7;'i~C~ e[~ irlQS. 'x ~.~ilE' F1v4_,f ',!~'i1i- .~C>~ ~1",-~rL:!t i_'1 T~~Za`a`1ra~Cl}]. '?-, 'l. t-' Ci2rl?Cd. (fin the -.. rc ,<>lul,iorl ,, ~~..;rkd 1>y ; hf' -~l_a i ~~ti 1 i c•r,n~ rar;' tz~ :,larzs, to~!~i kzer i'•JZ ~n t.i~<~ adec}raatc~ly drscr?~e ~~}z c, ~~C??:vitudc~~ ;>l:rced ran the dECfendants~ i.aazd. '~>. i'arar,rTz.,>h 2~- adl~~z<t:t~>d. i . ~~'~~ 1~~I"T~,~i2 nr "l5 cie I~~~d. pJ? tF1E' ~~~i~)ni-Laa"Tr, GIl"1.tlE? i:}lB '>~ ~t?'7t:ll~f ~+~.".=i. G'LP t.:h~].~t: `~~aS q~~~. i- 4.'. ~? L'Si 1 (3r, 1'Cn :~C'!?`~: F>d ,`T. :3}? 1}. I1. i"~ 1.?-J ~;, }a C.. n'"7C;'E'.ed:l-ri C:j ~; ~)ef~01"<' ';he Pent"ISti~v~!"??-;r F!]i,~1.C TJtl7.J.i,\r CC1t~;:.ilS,:i.On, tllc' ~>TC1CC'C'C~11"iC~S i);l t l?~ k)'>l~t~i .!J<l~~ d C1C"•Y <lrlrl ~E" ,', r,=t'..:~..? (~ ;.57 1(lc' t?rpC(?nd 7. C1C~ dnd i hE? ~-.;#.lL ~ tiAS Sf3'- - ~ - ~ , t d ~ r ' ~ , ~Ll-ri~iil~ ~ iiC, T'E?:iClll"C:S ~ h<?i: ~.17E' t'c~':~lti)'31~.1_^i7 '~5?7Z1i_ j hC?~:t r)11ie > '~~~ ?~ ~ tE. .- ,. r ..._ cl - t ,;r1t, ~pI] ~lr)"r 1.CE2 %)f 1:1~)C i .I,lf' '1;~1e?Z i.:if? ;~^l E' vV 1. _>' "? 't ',C-,~i.. > _ C 7. 1;~~~r reasonal)1_~ ir7~ ?s~;;ic;at ~.0*1 ',;~tc> :)laii]t:i*';` is ttn<~?ir> +,,, dc>;:;>]- `a .ltlc' ti}t?? t.r[;.`;HA ,~'~ ~t:.i7F? r~d'i:t{??- ~,.>... fort;] lrt Pa.ar~rar)h ^' _ _ .;, - . and r>root t'_]EZrE~r~i' 1S (.~C't, £#ncied, <]?"lf~ `C}? J".?4_ x ,P='t. ' S OF j~2i'.1(7r 1;)}] •-' ~-U L1;"~' J Y7"f?~_~ ~ 3".' i it ._ tit' c~a~'. Z -, :. t~ i:o.?- rE? as ? ?"1!~' Cz ? n~ ~>s i_ ]_c]at L on i ?]e y)la t rti: ~ ('{ :. s ,_u.,-tt:,7.c> - ~ to de?_er- ...; ,)c> h> tr?t`. It <~` the r~~tt ~: t,,~ ~c_>>? for'rh ; n Paragra~~;] ."'".' anca nr;)c)f . ? tc -,> <_ ~~.) r :i. :; ~('1:i:1.ndE'C~.! anC?. ±'7e 7.].'t-?ri!1E'2"l Y:.`~, t')- ~~?"a l~"<1'?}~l ~7 v't-'~~ ? 1 a: ~.' c ~.~;~ T7 (: 1I] ai"Ij7 C'~1Se. ~. n417~i1C~fY~i_%il .~i. 71: i5 :1(j.itll~,)=vt~ tit~a?". rOUC)Sel (~,:)?" t1]C>. Cj.>f""~>nCta?t1; d7.d T77i_ i'('r'E'1.Vf? a i'()'")t7 ~)~ tii(? i`F?'tltl.i?!"? fC?r ;Ar)D7';>`11~ C)i f tiC? k7or7d• . 1 '~ L S <jf?r7't~Cli ~:;7d1; 'tht?C~ tgdf+ ncJ )")M 7r"ttlriitV t0 ~1~~'>r- *ti)ril;arv Z~ ~.4~F>(;r ~ t \) r 3 1 i> r?~)~'£'CT, L~)i"i ;,. ~)n 1"ilt? r;r"?nIT"~rSr ~ I1.1P defE?rtc3Ant ~~:'711]_A"I-:? i"7'1Ci ~u:~f1C:t ~'2"i~~ `t: ] ? ' ^ . .. C . C r)'r)t a-;_ n ~cl1:n :C ;_ ;:. r7 aT~r~Pa?" " FO Y" il: rr 1-,La ('n'.-'~ t?.]F, ~: .) ! y- an(~ ?J_ "1~ r t r) 1 ' _ . , C)T)~)±~SE? ~'].e iiL"._ltl'( lr]C1 O:~t!]C ~>C'i. ~?: iOT7 . F;)r lga)' C)i lUtitl"1C2]" ~3tlCSL'dF,~- t11C: r>~.~11+'1C f f at a?. 1. ri;nes `cr llowe<1 ihc~ re.!t_,_ rc>:iien?:s oi^ file :,tatute :=c>t fo,.°t 17 i~t 1-~ nurdc~n'S ~~,.; . ~,:_ , ]_0. Pa.-actra~_)h ''~) i s denied. On the cots `:rare is i']e dei^enc!ant ti,7 ~c>-;t :x)1; t.>n7 v i:a? d the defendant Shi 11itr) to s}7no'. i ~] !:i I 1 )ut :-; '-} i ~ an~~~r~>;- ] Pa.r~lc~ra_)1~ 1-t ol` the n}-irfi_~~al answer i:c) the !~c)rn;)lani the defendant t~;r~iesf adrni.i:tc~ci. sazch conversation. a 7. < The aver.rrents ~~f r)ara_~rar)h 30 ar.e denied. Qn the contrary test i)<>L"'LI~C1 ~ il._lt.r(? 1)C?E2i] li]rilile? Of' ~-}'ic> >1?f: l ~"'^ i ] :'}c? p : C'P_'">:: 1 C)t" i ~"]f" i ?;~C1 7U^c 7"I 1.6 S vii Shil_i.t:o. Foundations have i)ear) cor:]r)leted o~:er ~5"~~ or the Line ~zn~3 1viE.hit7. 4 r~ti 1es c7f Shi11 itr]'s land. Tres ha~.~e i~ee.z] tri.~]r;Fd from the 1"3.<~L2t-O~-LV<1V OVe]" i:he ent.lrt G")t17`S(~ O:F ti}(? ] 1_C]f.' w:itl-2 the E ~Cl?t>t-;-i)p r)f 1,~. P~lr.,t;ra,]iz 31 aclt:,it ~u<>d. 1"~. }'a,r~lara)h "32 adr?i_t iced. 1'.-. F'a_~~.<;Ya)!1 3?, It: i.5 denif~d t:h~.~t t.]c> y)1a?ntif]= ]:\SZ not yrT.~t detc>rrni.nc?d ;hc> desi-~Lt ~:)f ti,,f, to?vers. On file c'nlli:C<lrv ~.itE? dr'~.i~}n r?( 1 - - _ ,: i l e • ~ d -~ i.0#"~L>I'`> h#s ?-7F.'E'n <~.C?t.~7"TZ7..;~C'd; :L t; :IS 1:('_;11?C?. w','1I1i }..-.hf? 1._ ?C.ld~,l_~)t2 ;~ ±}~lE;' if))nrt,l-c ~"1;3.s t7C)i~: ?)E?f?rl t_'St:a~?~. .SLIF'd F3XC'E?-Ot- Orl t i'1° `i1"]111- L't:.<) T>T'f)r~C?T'1: v ?!ri1F'1"i3 I. t. -' S #d '','_1:t,_'d i:t"lat the 1.0('1}: 1.OC1 OE" t}lE' LC71VE:,1-c, ?Z ~it;~ )lr7j trC.j ~,E>.>ri PS4:.'#})~ 1 ~hE'Cl Zrt{} ` he V C'c#n '"10 :: }JE: C?S?: -#i)' 1 ~; t1E=C1 ?.1C7 v 1. 1. a ~t E? T" t (>~; is }")Or 111{`S it ~#1'E' ;)PE?n ::1 Zde ; it is fu?:ther ad~.ttied the#': tire' dis±~rl~~e )e,,#'.~F.rl ~n 1: he :~hi1 i~t;~ -1r:~T_:C>~i ter i]~~4.`' `')O'•,. i•)et?l7 F'.`:+t.al>1. ;.,~'nC'd and LV11 ~ n..)t, he E?St:aU l.s}]ed Ur1:;1.1_ 1,;E?St; t,)ol~inc;ts h.-#L~e }7een r7ade; i_t i.s adraitf-ed tha.~ thc~ ~~~c~ of t}gin 1_irl<> and tale distan~_,e frol!1 the 1-i nr~ tc) thle carount] or] the ~Y] ~ Llito pxoF)erty has not been C ~t.3f)1- 7_Sr1C'd ai^.:} C'd3.[] llOt IJC> f>c t l}>1.1 SIICC~ 11!7`1: 1.1. t-E-'_Si: ~)<;3" 111C7S t]\/P_ )E>^h ~~i:3dF? :#l1'j ";: }1e I.OC`at 101? ni t:=t',E?T~ f Lxed n~r.C,ep1: I:ilat all 1.1P.f-'c; rUnriLnC1 ~)<_'! ?irE>E?p 1:o*.+-c~) s w_17. be :# Inini,~LYZI E'ri stance of "33 ft-'F?t a?7ove ;^~~nunt3. It is ful_ther at~'i]?i:CC'-d t}lat SOi,le O?'her dE`{:.17..1.5 '.?f C~)I]slrUC't 1,O T] });1`.'(' nOf: V(? hC?E>.n i~eteT:,71_zlc?d hf,?C",=1USC`_ :'~:F'S rO;)C)~ it all ~t17 S:1T1 ~Ort)"1?1V }1~`_^ T7C)1: t)C~f'n 1}l1f? l:0 ("li) YITi ti1C? Sh11.1.1t0 ~7;'OJt:'rt~T V/1thOLlt ddllflE?r ~t0 ~lfe arTd 1 t"~l}) L17 OrdF'r f0 t?_]:F? t eSi l)~it" 1.T]it , tlC=.reC>jT ) . _ and _ ~o cyst.:#ol_.i`sh the -)c)s T t1_on of tol~rers , 1C•. ParaElrap}l ~4. AftE?r rea5~)na}')le i.~vestigati_on the c~'.ai.rl; i f{- i.s Un:#})1 C' }; <) (3etF'.T?i11 T1 t? i.YlE' t. i`iit}1 Or L}-its? a\rt_>1'IuE.n 4 SPi: `Qrt i7 ] ?7 TnaCdQl d`;")~! ?n aru' r)l:o;)f t}ler~~o]` i-s !:ic~r.)ande?d. 7:. Pa.rac?r,1-)h 3r :#d*oitted. 17. Parar)l:aoll 3~ denied. On the contrary Che ;)? a i rlt iff h;#s azlt)ther ~7astu)"e, in r)resenl= use o!l the sa>:~e Earn], to the existence o` which ;x#stnl-E, the de?]=F>nr~arTt Shi l lino, ir) i.}li3 })re~;cnce o:;• his 11ti.orT]ey, Gr~_2st., to?stifiet~ u!lder o:s-~h nn .err?-1 31, 1~~~5. ~~;<~e dE)os;.tion_-: filed ~o ~`os. 77! r1 /2d 777 i'f'})rU,3.?"#! ~?'E?rt?t, 1 ^(~~, Cni_1Ti O~ ~Ori;7l)il I~1E?3S Of ~.Ullherl-and >~oun~,r, Penns/1~.~aYl.ia, panes 1 3-14). 1t3. Parac~ra.ph 37. F#fter rc~asc)nabl•" investit~a'~i.:)n t}ler_)la.ntiff is ;,+Jtt}";0~~:` 11'1:f~7Y:71a1, LOn SU~f11'].eC')i i. C) C?C?tC'T"`~]1IIC' Z;?1C i rUt) O "l:h~ aVE'7:;leClt set forth in P~#racir:t:)i'1 37 and )rc)of t heT°eof is dF-~r7azlded. 1`?. }'.a'.-aC';:t::"lph ~1~'~. ,`j0 i7"~11C}2 rl~ 1, }l (? aVF?I't?leni~ Cl{ e~,'#rlClrl#~_)h Ali; 1S avers that the ::`ence wa s res~Lrai.ninc7 cattle at the t~-_r,t~ Y)~" ells-rv by the ~~la~lnt 1 i f' > agent . s deny ed. On t Le Curl"t Y~zz-t~ 'cher<' ?~reTe I'io Cat 1.1 e ;,res;~nt a1_ ghat 1_ocacior at the 1"i~;e o:~ entry i~~, the Alai?~taffrs agetlt, all other aver-nE~rlt~ oi" Paranra;lh ~ti are aclr-~it'i.ed. _~IJShIER '1`O CCIJPZ';'EiZ CLAI1~1 ?Cl, I~aracrranh 3ra. 71: is :1<~niec: tha~`: tyre construc~;:ir_>n ox tine ' ine. wit"]. Create a hazard to file sat'c:~ty of the i~uild:ino ,_rncl ocCGr)iers of the. curt ilc>ctE> outside 1lle rir)}~,1 -of-way. Can the Corl~rar~~ tl;e con~tr.uct:ion ~)f the' 11ne w.?1i. crea',:e rlr> haztzr_d ~i:o ~ttle ~5.jfe~.:y of the F _- nzild~ n~?s ar1.I oc~CU* ,;~T-s cif eitrer t:he dtslel.7.ina house or the r~~e of any o~ tl")e ;_)~aildings in chc, rt;~-'ci.lenC~ c>>ztside o- t:he right-of`-vaav, ol• to any i~uilci!?as or ,~~.c•u~~iers of i>uil_dl;?-~ nn t: Ile Shillto :)r.);)er-i.v. "1 !':~il ~^1..11.x1; Z l~ i ~~Ft.C'r redE;oC"?at>~ e ln~;'C'S C. 1 Flt: 7 C>?1 S F?'. ~ }~OL;`t. 5<T1oVJ' 2d(lE' ")~: 1. "l.?O?-^)a'.1.+',r) SII:F~LI`7.E?n"[ 1-C) ('(~r•.-; ~ ~)C?_I.l.E'f ~z5 ttl ~.'j"i{? ~ir11i:1 Oi ~::':"1C' aV(2r':iiPnt~ set t;)r"i:h ire Parar:rz)hs -'?n tr:r_o??gIl 4.5, inclusive, ~znd r~roof lherc-~o~ is decianded. 1;?IIt3REFC~2E, the Plalt:if#- requests your I-Iono~~a'tlle Court t« den~~ tree 'ref Endr~r? * s' r•ic~t inn 1`':? ;- i n ~i unct i.~,e Tei "ief= . RYAN °• RUSSELL, '~lYERS , n1YERS ~- FLOWER , Attorneys for °l.aintifi`, f -? . r- Ja?t1C~c I). Flower i n ~ -• • ~/- . Ss as l Or i'iii`~'vSYT,zTAr'dI/~ 1 .~'i . C~(.)L?°lY ~F C[T11~3 ?2[..t1i'JI) } ',' ` I"IGER , ~>e ~ nci dul_~ s ~.v~~r,a accor .ii nc t) 1 atv, c c,..c~s an;? says. tCl%)L. C1 C' 1~. ~,S'~:1~;'aTi~ ~af'rr('t~iYV O'C ~'[E't.TO~)O11 . <11"1 ~C[i_Sf;>tl Cc>7i11)an~/ atlC3 .].S autF)ori zef[ ~o ~~<`<c~ t his a!=fi;-1~~;iL, aticl i:n.-~s thc~ facts scat fo~,~~~ in t;,e {!~1"(`f7,1'.. nC~ i:C.?:')I~,~ [-C) ~v` C'LU ~'i~tY.E':C and fltZSi'dE'?" tC.) COI~~I;:c~;-',?" C~-r~7i". 1rf,-', +:7-U('. dl'1C~. cor-r~ct t~ ~.lE. ~~~s1 ~ ' F ?CI1C)iall 0_~ h"ls .ec3~e, -infr~r~ a?:l.nn ~:~nd bc~J_:lef. ~ ~~ ,• - ~: (-- Stvor tI and su Ens; r' i t>ed ~~efort rre this ~'t~, day, ~; :~E:)ril., f1.IJ, 19F~€~. e,;.. L-Cr., •"..c~ ~ 1 -'~ .'i~+.~ ~T. t_ Yt, > x.L...f "~ l c=C k t. ''ir~~./~SC.~' Ei. l.i~~.lYlY6,iY1f~~B lit r~ ~',~ '~ t „ r - (-i e5a i~1: _. `, ~ IfU. ~.iy~di a '~ ' ' ' 4 • ~ ~ ~ _ METROPOLITAN EDISON COMPANY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. N0. 1 MARCH TERM, 1966 RUSSELL L. SHILLITO, and RUSSELL F. GRIEST, ESQ., SITTING IN EQUITY Defendants ORDER OF COURT AND NOW, April 9, 1966, at 11:55 o'clock, A.M., E.S.T., upon request of counsel for Plaintiff and Defendant, the submission of written Bri efs is waived and the mat ter is immediately argued orally only. BY THE COURT, James D. Flower, Esquire Attorney for Plaintiff John M. Eakin, Esquire Attorney for Defendants .. ' j J. .~ ~ ~~ -r ~ `' ~~ -~,-: ~~ J~ ".t --i v7 .+~ -'C ~ d') tSJ METROPOLITAN EDISON COMPAi~IY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. SITTING IN EQUITY RUSSELL F. S%iILLITO and RUSSELL F. DRIEST, ESQ., Defendants : No. ',' ' . .-~ Term, 1966 O R D E R <<~ ~ //'r c' f,~ /6t AND No4a, to wit, ~;~ k_~ it , 1966 ,,;upon consideration of the Complaint in Equity filed in the above matter and the injunction affidavits filed therewith, the Court being of the opinion that, on the facts alleged in the Complaint and affidavits, irreparable loss and damage has resulted and will continue to result to the Plaintiff therein and that bodily :Harm to agents and employees of Plaintiff and its contractors and damage to property of Plaintiff and its contractors may take glace unless injunctive relief is granted, a preliminary injunction is hereby granted enjoining and restraining the Defendants from engaging, or encouragin~* or aiding and abetting: (a) threats or attempts to kill, shoot or physically harm agents, servants and employees of Plaintiff and its contractors, (b) threats or attempts to damage property of Plaintiff and its contractors, (c) other forms of molesting, obstructing or interfering with Plaintiff, its contractors, agents, servants and. em- uloyees, in entering upon and exercising Plaintiff's rights within the right o.f way easements which were the subjects of the proceedings docketed to i~ios. 776 and 777 February Term, 1966. Bond with sufficient sureties to be filed in the amount of $ ,.,2 !,'l~ C' `- , or' in lieu thereof , le~?al tender of the United States in like amount to be deposited with the Prothonotary to be held ~y him upon the conditions provided for in Pa.R.C.P.1531(b). ii r • 4 ~ * • ~ y " • i 2 This injunction shall continue to and including 7t~~~~c~_ -=mi'l' , 1966 and a motion for its continuance thereafter shall'. be heard by the Court on ~lr« -~' `~ ~ , 1966, at /l'-~~`~~ /--~ M~ in the Court House in Carlisle, Pennsylvania. I 1sY THE COURT: ~~~~ ~--- J. METROPOLITAN EDISON COMPANY, : Plaintiff vs. , RUSSELL L. SHILLITO and , RUSSELL F. GRIEST, ESQ., ; Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SITTING IN EQUITY No. ANSWER OF RUSSELL F. GRIEST TO THE HONORABLE, THE JUDGES OF SAID COURT: Term, 1966 The Defendat, Russell F. Griest, respectfully files his Answer as follows: 1, Defendant, Russell F. Griest incorporates by reference the answers contained in the Answer filed by Russell L. Shillito~ Defendant, numbers 1 through 19 inclusive by reference thereto. 2. The plaintiff had no lawful decree authorizing entry upan defendant Shillito`s premises since the Pennsylvania Public Utili Commission expressly set forth in their answer that plaintiff had not been authorized to enter, and defendant Griest was undertaking the striking of plaintiff`s condemnation bond by petition, rule and testimony scheduled for and taken March 31, 1966. 3. At the time the ~atement contained in plaintiff's paragraph iRIEST 8c ~VILEY ATTORNEYS AT LAW 128 EAST ICING STREET YORx, PA. 77403 of the Complaint was made, defendant Griest was advising suf- ficient force to induce plaintiff or its employees not to enter on his client`s premises, but to proceed at that time by preliminary injunction rather than by force. That the directior. to plaintiff`s employee was made to induce plaintiff`s employee not to enter and was at no time directed as advice to defendant`s client Shillito, - 1 - a • '~ ~ ~ r r ~~ 4. Samuel Russell, counsel for Metropolitan Edison Company, advised defendant Griest at a conference in York, Pennsylvania, two weeks prior to the complained-of-occurence that he was prepared to undertake the risks of entry without judicial determination of the case. At the same time he was advised by defendant Griest not to enter. 5. Defendant Griest, as well as his client, Shillito, will obey any order entered by the Court after the matter comes on for argument and decision April 19, 1966 and any other order handed down by this Court, and if Mr. Russell elects to use self-help without an order of this Court sufficient force will be used to resist him in the future. 6. At the same time of the occurence defendant Griest called Attorney Russell in Reading to notify him not to make the unlawful entry at which time Mr. Russell told defendant Griest that he was stupid and hung up. 7. Defendant Griest maintains that the entry of plaintiff 1RIEST SC WILEY ATTORNEYS AT LAW 128 EAST KING STREET YORK, PA. 17403 is premature prior to determination of the matters pending in No. 776 and 777 February Term, 1966. WHEREFORE, defendant Griest requests a dismissal of the above captioned equity case at the cost of_..ntiff. .~~ ~/ (R s 1 F, riest) - ~ - ~ • x V ~ ~ • ~ STATE OF PENNSYLVANIA ss: COUNTY OF YORK Before me, a Notary Public in and for said State and .~ . County, personally appeared Russell F. Driest, who being duly sworn according to law, deposes and says that the facts con- tained in the foregoing Answer are true and correct to the best of his knowledge, information and belief. ^ ~7 (Russell`F`' wriest) Sworn and subscribed to before me this ~ day cif ~',~ 1966. otary Public My Commission expires: January 20, 1969 DRIEST ~C WILEY ATTORNEYS AT LAW ~ 3 128 EAST KING STREET YORK, PA. 17403 ~ ~ f Ilr • { • ` • METROPOLITAN EDISON COMPANY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. : SITTING IN EQUITY RUSSELL L. SHILLITO and RUSSELL F. GR.IEST, ESQ. , Defendants No. Term, 1966 ANSWER OF RUSSELL L. SHILLITO TO THE HONORABLE, THE JUDGES OF SAID COURT: The Defendant, Russell L. Shillito, respectfully files his Answer as follows: 1. Admitted. 2. Admitted. 3. Admitted. GRIEST Sc WILEY ATTORNEYS AT LAW 12H EAST KING STREET YORK, PA. 17403 4. Admitted, but it is denied that plaintiff has the authority to operate, maintain or construct the electric facilities over the property of the defendant Shillito because of a pending appeal before the Superior Court in Pennsylvania directed to No. 4 March Term, 1967 wherein the right of the plaintiff public utility to exercise its power of eminent domain is directly challenged because: (a) The utility proposes to construct its power line within 280 feet of the dwelling or reasonable curtilage appurtenant thereto. (b) It unreasonably disregarded the rights of defendant land owner Shillito and violated the due process clause of the Constitution. - 1 - • ~` ~ I (c) The plaintiff chose an indirect route 4000 feet longer than the primary route it selected to invade the defendant's premises. 5. Admitted. 6. It is admitted that plaintiff Metropolitan Edison Company filed its application with the Pennsylvania Public Utility Commission in re Application Docket No. 91664, that Notes of Testimony were taken before the Commission January 4, 1965 and January 25, 1965, that written Briefs were filed and oral argumen held March 23, 1965 and that the Pennsylvania Public Utility Commission filed its opinion and order January 17, 1966 issuing a certificate of public convenience and necessity from which the defendant Shillito took an appeal to the Superior Court of Pennsylvania to No. 4 March Term, 1967. 7. It is admitted that the plaintiff passed the condemnation resolution attached as Exhibit A to the Complaint, but it is denied that said resolution is sufficient in that the resolution does not define the location of the towers, the height of the towers, the width of the towers, the distance between the towers, the circumferance of the cable or the sag of the cable between the towers to indicate in what manner the plaintiff intends to construct its apparatus upon defendant's land, 8. It is admitted that the Pennsylvania Public Utility Com- RIEST ~C ~'VILEY ATTORNEYS AT LAW ~B EAST KING STREET YORx, PA. 17403 mission handed down its Order January 17, 1966 and it is further averred that a timely appeal was filed by the defendant, Russell - 2 - • ~ ~ • r ,~ • L. Shillito, to No. 4 March Term, 1967 with the Superior Court of Pennsylvania which has not been argued or disposed of. 9. Admitted. It is averred that the Superior Court of Penn- sylvania by its Per Curiam Opinion dismissed defendant's petition. for supersedeas by its Order dated February 14, 1966, but did not hold a hearing on the issue of supersedeas as required by the Act of May 28, 1937, P. L. 1053, Article 11, Section 1103; 66 P,S. 1433. 10. Admitted. 11. The notice given by plaintiff to defendant Shillito was defective and the petition filed by the plaintiff to No. 776 and 777 February Term, 1966 failed to set forth material averments of fact concerning the location of their installation upon defendant's land, to wit, the height of the towers, the width of the towers, the distance between towers and the sag of the line between the towers and the proximity of the line to the dwelling house and curtilage of defendant's land. The notice given to defendant Shillito was inadequate for a proper prepara- tion of a defense by February 1, 1966 and defendant could not appeal and present his objections in Court on that date through his counsel. 12. It is denied that title passed to the plaintiff upon ap- NEST 8c tiVILEY \TTORNEYS AT LAW 3 EAST KING STREET YORK, YA. I7403 proval of the bond and it is averred that plaintiff had no right to enter defendant's premises because an appeal was pending to - 3 - ~ • .t ~ ; • M s the Superior Court challenging plaintiff's right to a certificatE of public convenience and necessity which is undisposed of and for argument during the March Term of 1967. 13. It is admitted that plaintiff attempted to enter defendant's land. However, defendant, Russell L. Shillito, had filed his petition with the Court of Common Pleas of Cumberland County, Pennsylvania to No. 776 and 777 February Term, 1966 challenging the legality of the bond filed by the plaintiff and had a Rule issued by the Court upon the plaintiff to show cause why the bond should not be striken pending determination of the matter before the Superior Court of Pennsylvania, to which plaintiff filed Answers. After the plaintiff filed an Answer to the Petition and Rule to strike the bond defendant scheduled dep- ositions by agreement with plaintiff's counsel for Thursday, March 31, 1966 at 10:00 A.M. in Court Room No. 3 of the Cumber- land County Court House and said depositions were held as scheduled. Said petition, rule and the testimony taken pur- suant thereto are pending for disposition before the Court of Common Pleas of Cumberland County, Pennsylv ania, April ~9, 1966 for the Court to determine the validity of the bond filed and whether or not it should be striken. 14. Admitted. It is averred, however, that two weeks prior to iRIEST ~C WILEY ATTORNEYS AT LAW 128 EAST KING STREET YORK, PA. 17403 the conversation with plaintiff's employee, defendant, Russell L. Shillito, defendant, Russell F. Griest, Mr. Green, vice- president of plaintiff corporation, and Samuel Russell, Esquire, met at the conference room of Metropolitan Edison Company in York, Pennsylvania, where Samuel Russell, Esquire, advised - 4 - t • ~ ~ • ' r defendants that he had explained the risks of entry upon defen- dant's land pending the determination of the appeal before the Superior Court of Pennsylvania and that with knowledge of said risk he was instructing his client to enter into possession of Shillito's land at which time defendant Griest informed him that said entry would be resisted without a Court Order. It is further averred that defendant Griest's statement was made as a threat to prevent entry and when plaintiff's employee got off the telephone, defendant Griest instructed defendant Shillito to resist the entry with any reasonable force toward the equipment plaintiff was using but without harm or sho6ting plaintiffs' employees, At no time did defendant Griest instruct defendant Shillito to shoot anyone. At the same time defendant Griest called plaintiff's counsel, Samuel Russell in Reading, and told Mr, Russell that entry upon defendant's land would be resisted and Mr, Russell said, "Mr, Griest, yore stupid,'r and hung up, Immediately defendant Griest on behalf of defendant Shillito called John Eakin, Esquire for the purpose of securing the amount from the Court of Common Pleas of Cumberland County, Pennsylvania of a bond to be filed with a preliminary injunction complaint and affidavit on behalf of defendant Shillito, Before the complaint could be drafted and filed the above captioned pro- ceeding was initiated by the plaintiff. 15. Admitted, It is further averred that defendant Shillito was not going to use any force greater than was reasonably necessary to protect the invasion of his property and specificall rRIEST SC WILEY ATTORNEYS AT LAW 128 EAST KING STREET YORK, hA. 17403 ~ • was not going to shoot the employees of plaintiff. - 5 - w ~ ~ ~ • ,r r A • r • v 16. Admitted. As a result of defendant's statements the plaintiff removed from defendant Shillito's premises. Defendant Shillito avers that plaintiff had no right to enter since no order of Court had theretofore been issued permitting said entry. 17. Admitted. 18 . The averments contained in paragraph 18 of plaintiff's complaint are within the exclusive knowledge, possession and control of the plaintiff and defendant after reasonable inves- tigation has no means of ascertaining the truth or veracity thereof and demands proof at the trial of this issue. 19. It is denied that plaintiff will sustain irreparable harm by not entering defendant's premises and it is averred that plaintiff has no right to enter until a lawful Court Order permits them so to do. COUNTER CLAIM 20. Defendant, Russell L. Shillito, is a resident of York Springs, R. D. ~~1, Pennsylvania. 21. is The plaintiff, Metropolitan Edison Company,/a Pennsylvania Public Utility having its principal office in Muhlenberg Town- ship, Berks County, Pennsylvania. 22. GRIEST SC jVILE' ATTORNEYS AT LAW 12B EAST KING STREET PORK, PA. 17403 The defendant, Russell L. Shillito, incorporates by reference the allegations contained in paragraphs 3 through 19 of plaintif Complaint inclusive. - 6 - .~ ~ ~ } ~ . _ ~ 23. On March 29, 1966, plaintiff by its employeer or agents unlawfully took a fence gate which was located on defendant Shillitors property off of its hinges and entered upon the land of defendant Shillito without permission and which was not within the 200 feet right of way for which the plaintiff is seeking a right to enter. 24. On March 29, 1966, defendant Shillito in pursuit of his agricultural use of the land had more than 100 steers grazing at the location where plaintiff unlawfully removed defendantrs locked gate. 25. By reason of plaintiffs unlawful entry on defendant's premises he was damaged in the amount of $500.00. 26. The defendant Shillito has challenged plaintiff`s right to a certificate of public convenience and necessity before the Pennsylvania Public Utility Commission and his case is presently pending before the Superior Court of Pennsylv ania to No. 4 March Term, 1967 and he has further challenged the sufficiency and validity of the bond to No. 776 and 777 February Term, 1966, Cumberland County, Pennsylvania. 27. On defendantrs appeal to the Superior Court the Pennsyl- ~a.nia Public Utility Commission filed upon defendant Shillito its Answer together with its Certificate February 9, 1966, which is attached hereto, marked Exhibit A and incorporated herei 2IEST ~C WILEY ATTORNEYS AT LAW '8 EAST KING $TgEET - 7 - YORK, PA. 17403 • ~ • by reference thereto, a pertinent proviso of which is: rrg, rThe entry of the applicant', here complained of, is a matter directly in issue in the condemnation proceeding proper in another forum, The order here aUPealed does not authorize such entry. The Commission has found the proposed service•to be necessary, But this finding nowhere authorizes entry upon the condemnee's land, Such entry is the concern of another forum and it is in the latter forum that entry ma be opposed Litigation over such entry should be confined_to the forum Navin 'arisdiction to confirm or deny the right of entry not to the Commission's finding of necessity for the service '~ (underlining ours) 28. Pursuant to the instructions of the Pennsylvania Public Utility Commission as set forth in their .Answer marked Exhibit A herein, the defendant Shillito has made it the concern of the proper forum to challenge the plaintiff`s right of entry by filing his petition and rule to the above captioned term and number. 29. That at no time prior to the proceedings before the Penn- sylvania Public Utility Commission and at no time during two ~.ys of testimony before the Pennsylvania Public Utility Com- mission at which defendant Shillito hired specifically an en- gineer to review the testimony regarding the electrical hazard, which subject when presented did the plaintiff ever submit to the defendant, any information, although requested, on the heights of the towers, the location of the towers, the width of the towers, the distance between the towers, and proximity to the buildings, the circumferance of the cable and sag in the cable of the 500,000 volt line, 30, IEST SC WILEY TTORNEVS AT LAW EAST ICING STREET YORK, PA. 17403 Plaintiff's proposed right of way is within 280 feet of defendant's dwelling or cartilage appurtenant thereto. - 8- # • S • r • E 31. Y Plaintiff's right of way is 4000 feet longer than the route initially chosen by plaintiff North of the Williams Grove Park and Speedway and is the less desirable route. 32. The entry of plaintiff upon defendant Shillito's premises with the drilling of holes, the pouring of concrete foundations and the construction of towers and lines will cause immediate and irreparable damage to the property of the defendant for which he has no adequate remedy at law and for which money c~.mage would not be a just compensation. 33. Defendant requests your Honorable Court to issue a pre- liminary injunction and thereafter a permanent injunction as follows: (a) To prohibit the entry of plaintiff upon defendant Shillito's land. (b) To award defendant compensation for the previous unlawful entry. (c) Such other equitable relief as the Court may deem necessary and proper under the circumstances of the case. ~- (Russel ~L. Sh illito) ~ --- iRIEST SC WILEY ATTORNEYS AT LAW - (~ - 126 EAST KING STREET y YORK, PA. 17403 COMMONWEALTH OF PENNSYLVANIA ss: CUUNTY OF ~ ~n i~'.y~ Before me, a Notary Public in and for said State and County, personally appeared Russell L. Shillito, who being duly sworn according to law, deposes and says that the facts contained in the foregoing Answer are true and correct to the best of his knowledge, information and belief. ~% .,~ ~: - ~ ~~. (Russell I/. 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"~.., ;~.-..~c '9, 3`~.~~~~.Aw,.4rr'Sx.,~a. t ~~` y yq {;'`~G~ ~ a{{ ~}~q ~ $;,, F.~.~'~trh ~~i 5" AJ~ o ,. r.L. .. .., i ;_-. 5~. . -!:., z~ i k!E ~~~ F '~... aia'~,~'FMS ~~.~ !~py w~ yx~ t~.r ;.~`'4:d,m, ~;~j A~4c~dx. s .tea a~~~ c~ '~':7E,~-".$~`~Y y~p~~'y~~ .:... ~. ~.n _.. °u+.4~as~~. ~ ~-,gym ,."d, ~,.ry a {-"e^, x .,.~ i.. ~.. -~ a*- a <' ,.._~ ; +"1 Y~~ J~ r ,, n w k .; 8 k 1. ~ \.. ~. d -. n ~ .. ~ re ?`~~„ ~ .. d ad`s M~sy~ ~ ~`~# ~.,~ €, ~`~ a w 4 ! ~- i{ ~ RIEST SC ~VILEY ATTORNEYS AT LAW ?B EAST KING STREET PORK, PA. 17403 EXHIBIT A • ~ r f + ~ • Y ' ~ • METROPOLITAN EDISON IN THE COURT OF COMMON PLEAS COMPAN Y, Plaintiff OF • CUMBERLAND COUNTY, PENNSYLVANIA US ' • - No. f / . ~~'Z,lu.~.c~ TERM, 1966 RUSSELL L. SHILLITO and RUSSELL F. GRIEST, ESQ. • Defendants SITTING IN E T Q TITY PE TITION TO AMEND ANSWER TO THE HONORABLE THE JUDGES OF SAID COURT: The Petition of Russell L. Shillito and Russell F. Griest respectfully represent that: 1• Each filed an Answer to Plaintiff's Complaint in the above captioned matter. 2. Certain errors were made in said Complaint , specifi- cally, (a) the Answer to paragraph 11~ of the Complaint failed to deny a portion of said allegation to wit, that Defendant Gri knew Defendant Shillito was listening on another tele hone est conversation set forth in said p to the paragraph; (2) paragraph 22 of the Answer of Russell L. Shillito is incorrect as stated in that Defendant Shillito intended to incorporate by reference the gations contained in alle- paragraphs 3 through 19 of Plaintiff's Com- plaint and the answers thereto contained in Defendants Answ er. 3. The Defendants aver that the because of the limited time available aforesaid errors were made to th~m to file said Answer. 4. Defendants aver that the error pertaining to para ra h ~2 of the Complaint was one g p of transcription and that they believed -1- '~ • ~ r + • s ~ r • the Answer as filed contained the allegation which incorporated both the contents of paragraphs 3 through 19 of the Complaint and in addition, contained the incorporation of paragraphs 3 through 19 of the Answer. 5. A proposed Amended Answer is submitted herewith which accurately sets forth the answer to the Complaint. 6. The Counterclaim in the Amended Answer will bring the issue of a preliminary injunction in favor of Defendant Shillito and against Plaintiff before the Court in proper form so that the Court in this action may clearly understand the facts of the case and make appropriate rules not only on the preliminary injunction but also on a permanent injunction which is necessary between the parties. WHEREFORE, Defendants pray your Honorable Court to permit them to file an Amended Answer to said Complaint. A orney for Defendants -2- • • ~ + ,• • STATE OF PENNSYLVANIA ) yo Fri j SS: COUNTY OF ! ~ y • ~ Personally appeared before me, the undersigned officer, Russell L. Shillito and Russell F. Griest, who being duly sworn according to law, deposes and says that the facts set forth in the foregoing Petition are are true. ~~ f r ~ ~ 1 / /~ ~_.-._ /J \~~ .~ Sworn and subscribed to before me this •~'jf day o:f tipril, 1966. _~ ~ ~ > Notary Public My Ccminission Expires _~. ~'i~' ~~~ Y~ : ~ c~: ~~~~ -3- ~ . ~ '~ 1 • ORDER OF COURT } r ~ . _.._ AND NOW, the ~ ~ day of April, 1966, at %'~~ i% o1clock, ~ ~ M., Eastern Standard Time, leave is granted to the Defendants to file an Amended Answer to the Plaintiff's Complaint. Said Answer to be filed immediately upon the signing of this Order. By The Court: ~, ~ y ~'' -~ i ~1 J. -1~- ~ ~ ~ : ~ ~ -TLiTI?OPOL.IT.~i~~ F_p ISC)r..T C{ I~IPANY t,- - IN TI IE COU.. r OF COPII'•10P; PLEAS OF P7.a i rt1: ~.ff .. CUItiISEI?I~AI`IJ COUNTY, F'ENNSYL11r~I~~IA VS. .. NO. 1 °-lARCII 'TFu~7, 1~~~~~ RIJSSFLL L. SHIi,LITO an~1 .. SITTING TI`T E~ilITY >?IISSFILL F. DRIEST, ESc7. , . . Defenclanl: s STATI3 OF PLiNNSYI..VANI:'~ SS . COIJ"•1'CY OLD <'Ui,41',I'2LAi~~D .?A~"r.`--~ D, FLOGVE:-2, beincl dii7_» ,worn acc~rdina to lava', del~c~ses and s?t~:, th<e± ,-, r1 >'~areh ~1 ].~F~,e> at T , 7 0: 3C) o c-1+JC,'_< .~,^:t„ , tin dull sc?Y?.rc?d Ut)On !?~is5e1.7. F. Gr i.est , Es>•~ . , and at l i.:n0 0' c~7.ock A.;'i. upon ~'Zussel l L. Sh.i l J. i.to, she abo?'^ defendants, each a copy of the Com-~l-~int in Equity endorsed ~»i_~h notice to ;,lead ~a~ithin twenty (20) days, by handi_nca the S~lt'le to t?~e said Russc~77 F. Driest, Esc., and I2izssc>71. I.,. SI~il7.itc7. St~ac~rn rind 5ui~scrz}~c:d Lxrf~~~-{~ aye t~71~ >t'il da}' of ._ ~.~~IUp~, ~.t:; e F r5 r :~ } -=~ _~. -~ ~c^ c.~':, ~l--~ • • ~ . + • • 4 j • ~ METROPOLITAN EDISON IN THE COURT OF COMMON PLEAS OF COMPANY, Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA VS N0. TERM, 1966 ~l? ." RUSSELL L. SHILLITO and . RUSSELL F. DRIEST, ESQ. SITTING IN EQUITY Defendants AMENDED ANSWER OF DEFENDANTS SHILLITO AND DRIEST 1. Admitted. 2. Admitted. 3. Admitted. 4-. Admitted . 5. Admitted. 6. Admitted. 7. Admitted. ~. Admitted. 9 . Admitted . 10. Admitted. 11. Admitted. 12. Denied. It is averred Plaintiff's right of entry is not perfected because (a) of the pending of the Superior Court appeal docketed to ~ March Term, 1967, which attacks the validity of the certificate of public convenience. (b) the right of entry is a matter for determination in proceedings in the Court of Common Pleas of Cumberland County entered to Nos. 776 and 777 February Term 1966, which litigation is pending. -1- • ~ ~ + • '~ ~. ~ ~ ~ 13. Denied. It is admitted that entry was attempted as set forth in allegation 13; it is denied that Plaintiff at the time of attempted entry had acquired any right of way easements across said land . 1~.. Denied. It is admitted that telephone conversation took place; it is denied that Defendant Driest knew Defendant Shillito was listening on another telephone. 15. Admitted. 16. Admitted. 1`~. Admitted . l~. The averments contained in paragraph l~ of Plaintiff's complaint are within the exclusive knowledge, possession and control of the plaintiff and defendant after reasonable investigation has no means of ascertaining the truth or veracity thereof and demands proff at the trial of this issue. 19. Each and every allegation of Paragraph 19 is categorically denied and specifically it is denied that Plaintiff will suffer any immediate and irreparable injury should the preliminary injunction be denied. NEW MATTER 20. Plaintiff's charter right to exercise its power of eminent domain is conditioned upon its procurement from the Pennsylvania Public Utility Commission of a certificate of public convenience. Plaintiff has an appeal pending before the Superior Court challenging the validity of said certificate. 21. Plaintiff's condemnation resolution of September 25, 196,., -2- ~ i ~ .~ is defective in that (a) it does not adequately define the servitude placed upon Defendant's land and (b) the right-of-way is within the statutory limit of 300 feet from the curilege appurtenant to Defendant's dwelling. These matters attacking said resolution are pending before the Court of Common Pleas of Cumberland County in Nos. 776 and 777 February Term 1966. 22. The Pennsylvania Public Utility Commission in its Answer • filed on Defendant's petition for supercedeas averred the right of entry was not in issue in the Superior Court appeal, that the Penn- sylvania Public Utility Commission proceedings did not grant a right of entry; said Answer is attached hereto as Exhibit "A". 23. The Plaintiff's surveys, B29Li,5R and B29~.~.R are not accurate to describe the right-of-way requested for Plaintiff's entry on Defendant's land . 24-. Notice that the condemnation bond (15 P. S. 1~$2) presented to the Court of Common Pleas of Cumberland County on February 1, 1966, was given to Defendant Shillito by an employee of Plaintiff at his place of business at $:15 P. M.,January 27, 1966. 25. Said notice was not given to Russell F. Driest, attorney for Shillito although Plaintiff knew of said representation since November 5, 196., in this matter; see Exhibit "B" attached hereto. 26. The said notice was not delivered by Shillito to Driest until Friday evening, January 2$, 1966. 27. Insufficient time was available to Russell F. Driest to prepare his objections to the filing of said bond; that Russell F. Driest contacted John M. Eakin, to represent him as local counsel on Tuesday morning, February lst, 1966; that said local counsel immediately traveled to Carlisle, checked the records and discovered the bonds had been approved. -3- - ! ~ ~ ~ ~ w i 2~. At no time did counsel for Defendant receive copies of the petition for approval of said bond and there was no opportunity to appear February 1st, 1966 with an Answer denying any allegations contained, therein or to file objections thereto. 29. At no time did Defendant Griest instruct Defendant Shillito to shoot, inflict bodily harm or exert any force and violence against any of Plaintiff's employees or any other persons. 3~. Plaintiff has not commenced construction of its line in the vicinity of Defendant's land. 31. At no time has Plaintiff informed Defendants, nor has its petitions filed to Nos. 776 and 7'77 February Term 1966, nor its Complaint in these proceedings set forth a date for completion of the line. 32. In the year 196., Defendant Shillito authorized Plaintiff to enter said land for purposes of surveying the proposed right-of- way; Plaintiff's survey prints are dated August 19, 196t~. 33. Defendant has been informed, believes and therefore avers that Plaintiff, at the present time, has not determined the design of the towers, the location of the towers, the distance between towers, the sag of the line, the distance from the line to the ground and other details of construction. 34. Defendant Shillito confines about 150 head of Aberdeen Angus beef cattle in the field Plaintiff proposes to enter. 35. Plaintiff proposes to operate a drilling rig within 60 feet of the feeding station of the cattle. 36. Defendant has no other field in which to restrain said cattle. 37. Iri the event machinery or strangers are present in the -~-- M ~ ~ ~ ti field with said cattle they will take fright and stampede; the fence enclosing said field will not contain the cattle if they panic. and run into it. 3$. On March 29, 1966, immediately prior to shillito's conversation with Plaintiff's agents (paragraph 16), Plaintiff's agents had removed a padlocked gate from the fence restraining said cattle and let it off until they were ordered from the pre- miles; said gate was not on the alleged right-of-way. COUNTERCLAIM Defendant Shillito sets forth the following facts to establish his right to the equitable relief hereinafter requested. 39. Construction of the line will create a hazard to the safety of the buildings and occupiers of the curtilege within 300 feet of the said line. 1~0. Construction of the line will endanger the 150 head of cattle pastured in the field in which the line is to be erected. 41. Construction of the line when cattle are in the vicinity of men and machinery will cause the cattle to panic and they will not be restrained by the fence now enclosing the field. 42. In the event the cattle escape, they will threaten vehicles on the highways, the lands, buildings and occupants of nearby lands and will themselves be injured. 4.3. Construction of the line will prevent Defendant from farming his land in the customary manner this Spring. 4.4. Construction of the line will endanger the equipment of -5- r ,~ ~ • r Defendant used in farming said land, especially cornpickers and the workmen operating equipment. Workmen on hay wagons will b~e subjected to extreme danger. 45. Defendant will be unable to sell or develop his hand if Plaintiff is permitted to commence construction of the line before presently pending litigation challenging its right to condemn is concluded. WHEREFORE, Defendant needs equitable relief and prays your Honorable Court to decree as follows:' 1. Grant an injunction restraining and enjoining Metropolitan Edison Company from entering land of Defendant until termination of litigation now pending in the Superior Court challenging the grant of the certificate of public convenience by the Pennsylvania Public Utility Commission and in Cumberland County challenging the right of entry. 2. Such other relief as the Court may determine. n .-~ < ~~~7~ ~~~ ~ ~-L~r1.,, At~orney for Defendants -6- ~ ~ ~ • K * • STATE OF PENNSYLVANIA ) COUNTY OF ~r~! ~ SS : Personally appeared before me, the undersigned officer, Russell L. Shillito and Russell F. Griest, who being duly sworn according to law deposes and says that the facts set forth in the foregoing instrument are true. --, ~ ~-z~~. _ ...~ ,. yr ~~, ~~ t Sworn and subscribed to h~efore me this '•'f~~~" day of April, 1966. '~; ,j- Li! . ~iotary Public My Commission Expires: -7- ..~ r .~. ~~ zx rxs suP~zaA coua~r of ra~xLVexzA $~~~ia~ .,~ ~l.rriabvrt RUSSELL L. gHILLITQ, Appellant s Rio. ~ DRarch Terra, 1967 W x (s~ H ~ F~ n A H ^ y+ `}` ~~ 0 a E-+ vv w~ ('~: U C H Q ~~~ ~+ ~ W~~ ~~ H O 6 ~ is H 7~ ;Q ,~~ ~~ o ,=~ ~ H ~~ ~: v L, H v. (From AppellN's prder PEN~i3YLVANIA PUBLIC UTILITY of Jarnury 1?, 19661 Cppr~ggIpN, entered at A. 91b61fS Appellee AN3w8R 0~' APPSLLBB 1'0 APPS .Darr+g afl T P'p~? StiPRDB~ Tfl rHE HOI~QRABbZ THY PxE9IDENT JUDG$ A~iD JUDt}ES OI' THfr svPr~IOR couRT o~ P~xsYLVANZA C(~S NOW, Pennsylvania Publie Utility Commission (Commission 3 , appQllse herein, seed. tiles this ~ 4F APPELLEE TQ APPELLANT' 3 &EQUB~? Ft?~t SUpEDEAS 1. Admitted. 2. Denied as stated. ?b• appliaatitui filed is captioned: ~- .. _ "pPPlication of ~etrapolitan Edison Ceuapsut'-, r the Act of General Asaesebly of the Cosm~s~realth of PennBplvaxiia, approved Asay 21, 192]., P • L. ~?~?, for Commission finding asr--d determinatiosa that t3~e serv- ice to be fursaidhed by Appliaaat through its prr gvaed exercise of the poKer of eminent cloa~tin to. acquire right ©f Kay t'or the acastruation, operation, and maintenance of a traissi®n lice as+~ s:*elated facilities over and across land et Buseel3, L. Shillito, Monroe Toarnship, Cumberland County, is neoe or proper for the service, accon>modation, coneesaies~ee yr safety of the public." ~ . The Comraissia-n's Cea^tifieats did issue, but it b issued only in coast©rc~ae xith the Ca~.sslo~a.'s c-r#mr of January 17, 166 (beers *ppaa3.s+~1 ~ , ~ie2~ eosecluded as tol, t ,): 4 0 .>,.' -.. ~ ~ ~ ~ " ~ ?hs Cart~.~'ica~te of tlr,. ~. d,~,t,e, iaaaed lw~~st t+~ the order, cartcladss ~riLh the ,~ta-~ t~aa~: "• a thla certi2'i~tt• is #.reued eTideaeis~ itr appr+eval of sacid ~pli~rati~e ~s s~ t in d report ead crdesr~ +~ • 8~tit3oa~r's axaerab,3.~ et t,~,e } i~lYed ass act denied, but the aa.I.a~.d °~igb-e~rt +~ad b~rt o~~ ~ ,~~ 3a isisue bore. ~. Ttie~ deters to ~htcit ~t3t ~r ~ ~. be~nefitsd b~ the g~pooe~t pe~rsr 3f.a~r ~toast~rot,ieart ire a~et f~a ibeue h~ex~. 6 ® 2h~xt th$ -x'~oaed r3,~it eat' ~' ~ F~Per, ~rhic3~ ie f"or wither fcrwr-. fee el~ro * 9 bs~,o~x. ~~._~ . , ~ . M ~ ~ QttOi-ed in Fu'~-&'='~~2- 3 ~-bo~re, i'lnd~s the propee-!d ~tesTle• tri bit nea•ssary. (?f itself, it neither dlrettts ner autherises entry ugen an3' Land. In some instances, •.g., where the Gomaisslonrs t of motor carrier rights i• appealed, appoll.ants cpp~ th® ,~razated rights might, because of their particular situation and circumstances, suffer irrep+~rable in,~ury pending tlispsasiti~at tat the appeal walosa a supersedeas is granted, aa~d sash supear- sede~as is properly sought of the Commission or ®t the apgellat• Court. Indeed, an automatic aupersedeas is provided in appro- priate circumstance under Rule ~3 of yt-e~r Hon~arable Gown. but in this proceeding, xhich is basicall~r pursuant to the above- cited Act of ~7 ~~ 1921, and only thereby brought ~eollat- erally under the Public Utility Lars, th,rr scope and validitx sat the ccandemnati®n camplaiued ®f are xsatters dix'ecY.3.y in i.ssne in the condemnation prtceeding itself, and th• ad+equate and exclusive forum for the resolution of such aratteris is the ces- damnation forum. .~ y. I.o~r ~erion tvx~.~+.in, ,4,~,g pa, egg, Th® Commiacsion has found the prupased service tc+ be necessary. ~3ut this findix~ nv~rhere auth®rises entry upon the I condemaee's land. Such entry is the c®ncern at ttnethar t'aruat, and it is in the latter forum that ant ' ry ~y be oppased. Liti- gatian over such entry should be confined to the f®rum~having ~uriadictian to confir~a yr deny tho right of entry, not Lo the Ca:~cissior.'n finding of necessity for thsa sarriae. 9inilar x'eslueats for aupesrsedaras xers made to ~rour honorable Court at bas. 63, 6~, ~. 67: ?~, $1, $~, $g, and ~ Farah term, 196b, r~iah mere denim by ardor of y+owr ~~+1~1 C dated 3~eee~er 2g, 1965. .. 3 ,. r 1 ~, v 1 ~' ~ :i~ i i' ~ E 1 r 1 + („? : 1, 1 .''.I,:.A ,Ji..i'.:..~..,~ .. .a __J..11 ,~i Z'''...~• _ . . . _~.. : .a. ~. ._ •. 1. i j ~ ~4 .. .~ . . ~ • .. ._ ... , ..J ........ .. .. .. ..C' ....,r .~ 1 - .__. _....._~... _. . ._..._. .. a .J a f._~....-1 !.- ... a'1.... ~_ J.~ ._..--- `. ;.:. ..... f ~ i;:i C ~... ... 1, ; .. .. ~..~ _ ._.at ~_.._.~..'...._.~.~.~'.. ~~. - ,: .. ,.r. .. L ;' :. . '. ., 3 2'ti~ ..' '. ~.'~.f>., ,~ „. ..., ,. _ ~, . ~ .. ... ....... ... .-,.. iL~ .`s, i ~.4, ` 4~ ~ ~..k ,.. .... ~ ~ .-.• ..6 ~ ... .... ... +p ~1...~i..-` (~ ~ i ''~~:.vTiy~ i~T"12°!~~ 7SS:tStr`AT1*,; v..lT1SE'.~ ,. .,... ~.s ... .. ~ ... ..11.... .4. e.. t... .t .. ~ .. ..a. S .... . ..lw, .~+ J .. .~. TR i^ '. r r.. .. W.w . r ... ~ <. CiRIEST ~C ~~ILEY ATTORNEYS AT LAW 129 EAST KING STREET PORK, PA. 17403 a EXHIBIT A r 4 11 ' • ,. _. ,. . l.~rolc~ a . ::}Ta~°?., ~:sc~~t zre J1f+ C.tJ~.G?i:t~.s~_ °':Yt.,'~•L :~:111'v~I1: x'irt:: ~~nE; Pei,r~ ~"Lreets L-gar ~ r.. ~.~-a acc~~r~te -~' ~,o a 1 c• : `t=%'-4 '%' ~~ • ~ - =" z' - r.~' is wy :. t ~ , s ~: rv i ~• ~ ~ ~t t1 e ,, , ~~t-t-~f-way ¢~~ ~. -~ ,- ,~,. _. ,_, }~y ;~t~~ ~._a a_~1_it:~•-, ^disvn torp_a;~y over t. .. '.ar?~l ;;~ ~ ~~G:~, a .~~ . ; "' 1.~~_4 L..~I.i: , ~ zr _'~e tota7_ ~~,~°reage . _ - .. ._._pK :~, ¢ 4.?. C: '. .?' ti.: i. .l.~I`. :',.i.i~ iriflC~ . '?'i.lC=u :1i t!~'~' ~'~.. ..Yi j r tii ll;. ~. .' , ,_ _..._. i-.. .~ ~..;~ .. _..';"~ f~' L' ._ i... ~'._ c , `.> ,.'.{' ~ _.... ,,1. r J`\- , C) S .% . Z... .~ ,..4. _..~._~ 1...};.~.Y l' ...,a3 ~rcj l._.'01 4. :. _._ ..x~~ .Y~~'l'. ~., ~. ... C~:tJif..i t t} ~a .. '' ~'L1LF ~ ... ~ =.t. ':`.... L°ii~..i:' '~cl ~%1~f t •?;_. r_.. , 4ti:!° (: i•:j'i_I: . ,, ' .~. ' ~~ C'+ .c. c.. ::°U~s, ) ~_ ~ a:'t?~lliit>~ .:i). .~G ._:I ~ids.2C<' L:::1 t:t? ~''t~I.I.LC ~.sti~~ tip., i:an,::~~_ssit~~. ..s.._ci i.raf,c~. L.~~.t. ;~c,,_ wa.li _;~r. „£, ~c} ~'_..s ca'2- t~'nu..~n~~. ~...:~fl!{ "~+:a f+'~~' •!7~.7C r-~JfJ~:'.'.3te1QL°:. I':TT~:::x'T ~. ~ ~t~'.IGS1 ~ ~ ~ * ,i • ~ ~ ~ ~ _~ RIEST SC WILEY ATTORNEYS AT LAW 28 EAST KING STREET YORK, PA. 17403 EXHIBIT B ~ ~ • ~ ~ * • « I"I~TROPOLITAv EDISOIV COI`4PAI~1Y, Plaintiff vs. ;RUSSELL L. Si-iILLITO and RUSSELL F. GP.IEST, ESQ., Defendants • IN TtiE COURT OF COP~1MOi~d PLEAS OF CUMBERLAI'1D COUi1TY, PEId~dSYLVANIA SITTING Iii EQUITY No. 1 I~larch Term, 1966 KI~106~1 ALL i`iEN BY T~iESE PRESEPdTS, THAT WE, T4etropolitan Edison Company, plaintiff in the above captioned action, and Amerman 'Casualty Company of Reading, Pennsylvania , surety, are held and firmly bound unto the Commonwealth of Pennsylvania in the sum of $<~ ~~~~~•~~~? , to be paid to the Commonwealth of Pennsylvania; tc which payment, :cell and truly to be made, we bind ourselves, our and each of our successors and assigns, firmly by these presents. Sealed with our seals. ! Dated the ~~¢... day of 1966. ~,~ .~ April ~ ~~1HEREAS, the plaintiff filed a Complaint in Equity in the Court of Common Pleas for the County of Cumberland, to i 'iv o. 1 March Term, 1966, against the above named defendants, i praying, inter alia, for an injunction to restrain the said '.defendants as therein particularly set forth, which said injunction 'was duly granted bj,~ the said Court on the entering of the security l' in the above mentioned sum: ~10i~I, THE CONDITION OF THIS OBLIGATION IS SUCH, THAT if the injunction is dissolved because improperly granted, or for failure to hold a hearing, the plaintiff shall nay to any person ~ ~- ~ ~. • • ~ + * . ; - 2 - injured all damages sustained by reason of granting the injunction' and all legally taxable costs and fees, then this obligation to be void, otherwise it is to remain in full force and virtue. Attest: ~~ i~ , !+ f, ,. ,i ~~~ sip ~4.,~:L- Se etary ,; METROPOLITAN EDISON COI~IPAiJY /, ~ '~ / ~ ~' Y / President AMERICA:^d CASUALTY COI°1PANY OF READING, PEPd~dSYLVANIA Attorne -in-fact 0 ~..~ Bond a roved ~~~~ ~~ ~ 1966. BY THE COURT: _ ~ / / / ~ ~~ /. J. .1~~~~Crc».~.:~r ~'I~~~!iTs~~ C O M P A N Y O f CERTIFIED COPY p0, 11756 G E 1 p N P E N N S r I V A N l POWER OF ATTORNEY KNOW ALL MEN BY THE5E PRESENTS: That the AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, a Pennsyl- vania Corporation, having its principal office in the City of Reading, County oI Berks, Commonwealth of Pennsylvania, pursuant to the following By-Law, adopted by the stockholders of the said Company on November 21st, 1950, to wit: "Article VI-Section 2. Powers of Attorney-The President, or any Vice President shall have power and authority to appoint Attorneys-in-Fact, and to authorize them to execute on the behalf of the Company and attach the seal of the Company thereto, bonds and undertakings, recognizances, contracls of indemnity and other writings obligatory in the nature thereof, and they may, at any time, revoke the authority of any such Attorneys-in-Fact." does hereby constitute and appoint $Djrj[)~ HARVEY, Of Reading, Pennaylnania its true and lawful attorney(s)-in-fact, to execute, sea] and deliver for and on its behalf as surety, any and all bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof, which are or mcy be allo•,ved, required on permitted by law, statute, rule, regulation, contract or otherwise,tk and the execution of such instr,~ment(s) in pursuance of these presentst shall be as binding upon the said AMERICAII CASUALTY COMPANY OF READING, PENNSYLVANIA, as fully and amply, to a]] intents and purposes, as iE the same had been duly executed and acknowledged by its regularly elected officers a! its principal office. ALL AUTHORITY HEREBY CONFERRED SHALL EXPIRE AND TERMINATE WITHOUT NOTICE AT MIDNIGHT OF IIIdHf finite ................................. IN WITNESS WHEREOF, the AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA has caused these presents to be sign Pd and its corporate seal to be affixed by i±; authorized officer this 18C day of _ April 19 6~+ (CGRP!~RATE SEAL) H. G. Rile ................... ................................................ ................... COMMONV',+LALTri OF PENN;~Yi `./AtvIA 3 Vice-President COUNTY OF lisEni:S, ~., th; 1st Aril ..............day of p__- 19 64 before me came the individual, to me personally known, who ex- ecut .1 t',e }~rrceding instrument, and being 1 ~~ .:,e duly sworn, said that he is the therein described and authorized officer of the AMr r,iCAid CASUALTY COMPANY OF RFAhIIIG, PF.NIiSYLVANIA; that the seal affixed to said instrument is the corporate seat of said Company, and the said corporate sea] and his signature were duly affixed by the authority and direction of the said Corporation, ar,d that Article '/I, Section 2, of the By-La'als, of s~ id Company, referred to in the preceding instrument, is r.ow in force. Iii /IITtri;fiS '.VHEREOF, I have F~ere~ir aer -:y j~ snd and affixed my official seal at the City of Reading, the day and year first above written- My commission expires March 23rd ]g 6~ RObert C. _Pahl COM1v10NWEALTH OF PENNSYLVANIA, ~ Notary Public. COUNTY OF BEAKS, S° (NOTARIAL SEAL AFFIXED) __ I James J. NAble _.., Assistant Secretary of the AMERICAN CASUALTY COMPANY OF READING. PEIQNSYL'JAN1A, do hereby certify that thr f.;regrnng is a true and correct copy of Power of Attorney issued by said American Casu- alty Company of Reading, Pennsylvania, and chat I have compared same with the ORIGINAL on file in the Home Office of said Com- pany, and that it is a correct transcript thereof :sr.d of the whole of the said original, and that the said Power of Attorney has not been revoked ar,d is now in full force and effort IN `/JITIIESS WHEREOF, I have hereur,tc rut;scribed my name as Assistant Secretary, and affixed the corporate seal of the Com- ~., p pony at the City of Reading, Per,nsylvar.ia, this _.. L L_. ......... day of ~- r~~!i t ~ __ 19~" _........ _.. t, _ . ~,~.` a -- Assistant Sec ry. a : 1NC6RPOR,fTfp ~:~ IUIM 31, `i .~~ f8A2 .~~ d,~~;r. ,* .~~l,. Form I-X6-F9-XO METROPOLITAN EDISON COMPANY, Plaintiff . VS. RUSSELL L. SHILLITO and RUSSELL F. GRIEST, ESQ., Defendants . i ~~ • ~. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 1 MARCH TERM, 1966 SITTING IN EQUITY AMENDED ORDER OF COURT AND NOW, April 13, 1966, at 11:00 o'clock, A.M., E.S.T., upon consideration of the evidence presented at hearings on Plaintiff's request for a preliminary injunction in the above matter, the.~Court being of the opinion that irreparable loss and damage will result to Plaintiff unless injunctive relief is granted, a preliminary injunction is hereby granted enjoining and restraining the Defendants from engaging in, or encouraging or aiding and abetting: (a) threats or attempts to kill, shoot or physically harm agents, servants and employees of Plaintiff and its contractors, (b) threats or attempts to damage property of Plaintiff and its contractors, (c) other forms of molesting, obstructing or interfering with Plaintiff, its contractors, agents, servants and employees, in their entering upon, using and occupying the right of way easements which were the subjects of the proceedings docketed to Nos. 776 and 777 February Term, 1966. Bond with sufficient sureties to be filed by Plaintiff in the amount of $2500.00, upon the conditions provided in Pa. R.C.P. 1531(b). ~ ~ • ~~ This injunction shall continue to and including June 20, 1966 and a motion for its continuance thereafter shall be heard by the Court on June 13, 1966, at 10:00 o'clock, A.M., in the Court House in Carlisle, Pennsylvania. Further, Defendants counterclaim is dismissed. By the Court, J. ^ R ~ * . + r • ILCLN: 83. Immediately upo ei ",g n- a?,~eai a~pl ~ 1: ^ s r ; s ~ ~ io r~F t,3:ert~o! on the opposite party or his counsel; on the stenographer ~u~h-~ t ~ ~}, the ta~~ti no!~y, i iE o=s, ~a! ar,srrirt t.hereaf has not been filed; also on the judge who made any ruling o~ e*~te~c°d an;. crriea•, iudgareut or +i.~cr~t ~~f which appetia~,t complains and the rea- sons for which do not already ap ~>a~ of r-e~~~rr: and shall ~~°c n~~tl ~ PIF n v. c:.nrt below proof of the service of such noticea.^ A failure to comply wr ~ t;ita °~t;Er f:nd promptly so >e~vr u~~ttc=_ ots the court t>eloa~ with a concise statement of the matters complained of an-. re~.ara;n~; w hick i? is aller;e 3 the ,.<,e_s;nss therefor do not appear of record, may be considered as a waiver of all oh >c:,or ; ter t•;e r°iLng. order. udgreot. ~: °~ decree Pn rlue:ation. On receipt of the notice here required, the official tita~a-oz~ral-hc~ slaali torth~.o~ltE- prt,~,eed t+~ hta~-t his notes transcribed, approved and Sled, and the court brlow shill forthwifle 11ie +it r~~curu- at aea~~t a grief' sr,ats~~ment, i-~ the form o[ an opinion, of the reasons for the ruling, order, jud#~ment ~~r decrc~r Therein r~ierred to, or r;hail specify in writing the place iu the reeore] where snch reason., may' be found. and tEiis opinion or -vrtGrxg shalt ~~e ati$ched to the record and printed as part thereof. •Chartiers Val. ]3. & L. Ass'r ~:. Ende, 281 Ya. 396, 3;1".. METROPOLITAN EDISON COMPANY COURT OF COMMON PLEAS COUNTY OF OUMBERLAND v' In Equity RUSSELL L. SHILLITO and RUSSELL No• 1, March Term, 1966/ . F. GRIEST, ESQ. (Number in Court below) (PRELIMINARY INJUNCTION) To Honorable Clinton R. Weidner Pursuant to Rule 63, printed above, you are hereby notified that on April 18, 1966 an appeal was taken to the Supreme Court of Pennsylvania in the above entitled case at No~13 January Term, 19 66 by RUSSELL L. SHILLITO and ,RUSSELL F. GRIEST, ESQ. / which will be listed for argument at the session commencing in torney for Appellant. May 2, 1966 Service of the foregoing notice is hereby accepted. Beatrice L. Laughman Stenographer: Pursuant to Rule 63, printed above, you are hereby notified that on April 18, 1966 an appeal was taken to the Supreme Court of Pennsylvania in the above entitled case at No.313 January Term, 19 66 and RUSSELL F. GRIEST, ESQ. b$USSELL L. SHILLITO/ ~ which will be listed for argument at the session commencing September 26, 1966 in Pittsburgh. May 2, 1966 appniianL. Service of the foregoing notice is hereby accepted. / ;~ Qom.-C~.tt,.v ~ ~mur-z-~. 1966 ~ ~ • to p, Q " ~ b O ~ M ` J yr 0 ~ n V ~ ~ ~ ~ ~ ~ b C y ~ m N c + < ~ ~+ ~• p N a m 1-' m ~ ;z'J w+ O ~ G] • ~. 7d 0 ro 0 r ~~~.yy ~z.11 V H C] 0 x 0 /~ V ~r ~ m ~ ti~.~+ M~+ 0 y c+ ~ H Fes-' h O ~ v .... r cp Q~ E.i. v ~~ z~zC HN ~~ !,~y~y L~J FL U. ~ ' C ~ ,- ~„~ r ~ ~~ .. 7-F. _ '~5. c:- ~j ~ tiOT~-Rule 63 requires appellant, im~aediately u~x~n enterixig his appeal, ko sere e r~.t: thereof on the opposite parts or his counsel and to file promptly in the Court below prouf of the service of such r7oti.e. METROPOLITAN EDISON COMPANY v. RUSSELL L. SHILLITO and RUSSELL F. GRIEST, ESQ. To Appellee or his Counsels A / You are hereby notified that on aril 18, 1966 an appeal was taken to the Supreme Court of Pennsylvania in the above entitled case at No. 3~3 January Term, is 66: ~ by RUSSELL L. SHILLITO and RUSSELL F. GRIEST, ESQ. and that this appeal gill be on the Argument list for the Session beginning September 26, 1966 at Pittsburgh. COURT OF COMMON PLEAS COUNTY OF CUMBERLAND No. 1, March Term, is 66,. In (Number in court below) Equity (PRELIMINARY INJUNCTION ~` Attorneys fo i ~ ~ ~„ r Del t. May 2 19 66, Servi a of the fo egoing notice is hereby accepted. uel B. Russell Harold J. Ryan Ryan 6 Russell 304 Colonial Trust Building Reading, Pennsylvania James D. Flower Myers, Myers 6 Flower Farmers Trust Building Carlisle, Pennsylvania ~~~ ~ . b co F+ ~"'! O H r OD A 0 m N ~~ . ~ ~~ ~ H ~ ~ ~ r~ b c+ H ti (D ~ ~ ~ ~ `d ~ N ~ ~ H O y C ~ ~' fy ~ ~' ~, a cv a ~ ~ ~ ~ ~ r ~~ 42 r 'ad 0 ro O t'i y~~y ~1 d H O • (~ z c~ c 0 Oc ~< t ~ ~ ~c F f o K '~J c ~• n ~ zzf ~ Ca ~ ,~ t o g ~• ~`° rn ~rn ,Q v {-~• c'F' ~v ~ c:~ n ' =C -i -.., : ^ ~ ~ ~ C_. _ C~ ~ C3'3 s ` ~ ~ • ~ METROPOLITAN EDISON COMPANY, Plaintiff VS. RUSSELL L. SHILLITO and RUSSELL F. GRIEST, ESQ., Defendants . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 1 MARCH TERM, 1966 . SITTING IN EQUITY Before Honorable CLINTON R, WEIDNER, Judge, Carlisle, Pennsylvania, in Court Room No. 2, on Wednesday, April 6, 1966, and Saturday, April 9, 19x6 NOTES OF TESTIMONY ~ • . K- WITNESSES: Mr. Hollinger Mr. Green Mr. Shillito • I N D E X ~ 4 Order of Court Setting Hearing Appearances: April 6, 1966 Court Adjourned to Friday morning, April 8, 1966 at 10:00 Order of Court Continuing Hearing to Saturday morning, April 9, 1966 at 9:00 Appearances: April 9, 1966 Hearing Closed - Testimony Closed - Court Adjourned Certifications to Record i • ~ PAGE 20 24 46 1 2 17 18 19 52 53 • ~ METROPOLITAN EDISON COMPANY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. . N0. 1 MARCH TERM, 1966 RUSSELL L. SHILLITO and RUSSELL F. GRIEST, ESQ., SITTING IN EQUITY Defendants Before Honorable CLINTON R. WEIDNER, Judge, Carlisle, Pennsylvania, in Court Room No. 2, on Wednesday, April 6, 196b ORDER OF COURT AND NOW, March 31, 1966, at 10:00 o'clock, A.M., E.S.T., James D. Flower, Esquire, and Samuel B. Russell, Esquire, attorneys for Metropolitan Edison Company, having presented Complaint in Equity and having served copy thereon on defendants, Russell L. Shillito and Russell F. Griest, Esquire, and having requested hearing, It is ordered and directed that hearing on request for Preliminary Injunction in -this matter be held at 10:00 o'clock, A.M., E.S.T., April 6, 1966, in Court Room No. 2, Court House, Carlisle, Cumberland County, Pennsylvania, the parties and/or counsel having been notified of this date of said hearing and in the presence of counsel for Plaintiff and Russell F. Griest, Esquire and John M. Eakin, Esquire, attorneys for Defendant. By the Court, /s/ Clinton R. Weidner J. -1- A P PEA RAN C E S: JAMES D. FLOWER, Esq. SAMUEL B. RUSSELL, Esq. HAROLD J. RYAN, Esq. JOHN M. EAKIN, Esq. RUSSELL F. DRIEST, Esq. Attorney for Plaintiff Attorney for Plaintiff Attorney for Plaintiff Attorney for Defendants Attorney for Defendants _2_ • ~ i ~ • a ~ _ ~ • Mr. FLOWER; Judge Weidner, I would like to introduce Harold J. Ryan, as a partner with Samuel B. Russell. THE COURT: He is admitted. Mr. RYAN: Good morning, Your Honor. THE COURT: Good morning. Mr. EAKIN: If it please the Court I would like to introduce Russell F. Griest of the York County Bar and move for his admission in this matter on behalf of the Defendant Shillito and ask that my appearance be entered as attorney for Defendant Griest. THE COURT: Mr. Griest is admitted. Mr: RUSSELL: If it please the Court, I would like initially to read into the record certain admissions on the basis of pleadings. THE COURT: Alright. Mr. 'RUSSELL: I would read in Paragraph 1 of Plaintiff's Complaint as follows: "Plaintiff is a public utility company organized and existing under the laws of the Commonwealth of Pennsylvania, having its principal office in Mulzlenberg Township, Berks County, Pennsylvania." The answer of Mr. Shillito admitted and the answer of Mr. Griest incorporated that admission into h.is answer. Paragraph 2 of the Complaint: "Defendant Russell L. Shillito resides at York Springs, R. D. 1, Pennsylvania, and is the owner or reputed owner of two certain tracts of land in Monroe Township, Cumberland County, Pennsylvania, said land being more fully described in the plans which are a part of Exhibit A which is attached hereto and made a part hereof." Answer of Shillito admitted and the same admission incorporated in the Answer of Griest. Paragraph 3 of the Complaint: "Defendant Russell F. Griest, Esq., resides in Wellsville, Pennsylvania, is an attorney at law having his office at 12S East King Street, York, Pennsylva;~i.a, and is attorney -3- • ~~ ~~ i ~ ~ ~~ ~~~ ~ for Defendant Russell L. Shillito." Answer of Shillito admitted and the same with respect to the. Answer of Griest. Paragraph 4: I will read initially the complaintants averments and then state our position with respect to the answer of defendants: "Plaintiff has the charter right to construct, operate and maintain electric facilities in Monroe Township, Cumberland County, Pennsylvania." If the Court please, we would read into the record, subject to the ruling of the Court, a portion of Paragraph 4 of the Answer of Shillito which reads: "Admitted.'° The basis for this position of the Plaintiff is that it is perfectly proper that any portions of any answer which qualify and limit the admission are properly includeable in the answer to be read into the record, but if the Court would examine the portions of the answer following the word admitted, they in no way qualify or limit the admission of the averment of the pleading. Mr. GRIEST: May it Please the Court with respect to averment No. 4 I would suggest a better practice of the Court is that the entire Answer be read into the record and not just a portion thereof taken out of context . THE COURT: Alright, so the record shows we are having it read into the record. Mr. GRIEST: Pardon me. THE COURT: We will have it read into the record, the exception, then the record will show it completely. Mr.'RUSSELL'w If you will pardon me, I am not quite sure, is it clear that the balance of the Answer following the word admitted is in the record as part of the Plaintiffs case without any exception or objection? THE COURT: I think we have to put it in because it is a reservation under this admission, we have to put it in so the record willtruly represent his answer and we have to show it also because that cuts out t the main issue of the proceedings_4_We can go ahead without incorporating _ ~ y • it and say admitted as qualified and the qualification. Mr. RUSSELL: If the Court please, the Plaintiff then withdraws the offer of Paragraph No. ~¢ of the Complaint in the Answer that Defendant will prove the matter with its testimony. THE COURT: Alright. Mr. RUSSELL: Paragraph 5:of the Complaint: "Plaintiff, by virtue of the Act of May 8, 1889, P.L. 136, as amended and supplemented, 15 Purdon Statutes 1181 et seq., is vested with the power of eminent domain to acquire, inter alia, facilities for the transmission of electric power." The Answer of Defendant Shillito admitted, the same in respect for Griest. THE COURT: Now, Paragraph No. 9. Mr._RUSSELL: Pardon me. THE COURT: Well, you go ahead. Mr. RUSSELL: I am just trying to decide what would be the appropriate situation under the circumstances If the Court please, I would read into the record Paragraph 6: "Plaintiff, desiring easements across, over and through the aforesaid tracts of land for the purpose of constructing, operating and maintaining an electric transmission line and being unable to agree with Defendant Russell F. Shillito as to the price to be paid therefor, took action pursuant to the aforesaid Act of May 8, 1889, P.L. 136, as amended and supplemented, to initiate the condemnation and appropriation of the necessary easements and to secure from the Pennsylvania Public Utility Commission a certificate of public convenience evidencing said Commission's approval of the exercise of the power of eminent domain by Plaintiff in condemning and appropriating the subject easements." Paragraph 6 of the Answer of Shillito states it is admitted that plaintiff Metropolitan Edison Company filed its application with the Pennsylvania Public Utility Commission in re -5- :. i . ~ .~ . • Application Docket No. 91664, that Notes of Testimony were taken before the Commission January 4, 1965 and January 25, 1965, that written Briefs were filed and oral argument held March 23, 1965 and that the Pennsylvania Public Utility Commission filed its opinion and order dated January 17, 1966 issuing a certificate of public convenience and necessity from which the defendant Shillito took an appeal to the Superior Court of Pennsylvania to No. 4 March Term, 1967. Can the parties stipulate that the appeal so taken to No. 4 March Term, 1967 before the Superior Court of Pennsylvania is presently scheduled for argument in March of 1967 subject to an Order by that Court with reference to Plaintiffs petition to advance argument. Mr. GRIEST: If the Court please, it is correct that the argument is scheduled for March of '67, however they have petitioned to accellerate that argument before the Superior Court. No Order has been made by that Court and I don't see the materiality of the hearing. THE COURT: Then it's harmless. Mr. GRIEST: Pardon. THE COURT: Then it's harmless. Then what he said is true, is it not? Mr. GRIEST: Yes sir. THE COURT: Alright, let the record show that stipulation. Now as to the disposition of Paragraph 6, do you have any objection to its admission? Mr. GRIEST: Not as long as the Answer is read into the record. THE COURT: Well, I'm not going to read the Answer in on that one because you don't deny anything. Mr. GRIEST: Yes sir. THE COURT: Do you have any objection to its admission? Mr. GRIEST: No your Honor. THE COURT: Alright then, Paragraphs 1, 2, 3, 5 and 6 are admitted. Go ahead. -6- ,~ Mr. RUSSELL: "~ ' ~ ~ ~ .~ I will read Paragraph 8 of the Complaint: . ~~ "A certificate of public convenience and order was issued by the Pennsylvania Public Utility Commission at Application Docket No. 91664 under date of January 17, 1966, evidencing its approval of the exercise by Plaintiff of the power of eminent domain in acquiring the subject easements, a copy thereof being attached as Exhibit 2 to each of the Petitions for Approval of Bond in Eminent Domain Proceeding which were docketed in the above Court (and I know parenthetically that is the Court of Common Pleas of Cumberland County, Pennsylvania) to Nos. 776 and 777 February Term, 1966, said Exhibits 2 being incorporated herein by reference and made a part hereof." THE COURT: Any objection, Mr. Griest? Mr. GRIEST: Well - Mr. RUSSELL: The Answer would be as far as Shillito is concerned, it is admitted that the Pennsylvania Utility Commission handed down its Order January 17, 1966 and it is further averred .that a timely appeal was filed by the defendant, Russell L, Shillito, to No. 4 March Term, 1967 with the Superior Court of Pennsylvania which has not been argued or disposed of. THE COURT: I do not see the purpose of getting the Answer in because the defendants do not contradict or deny anything in the averment of the Complaint. Mr: RUSSELL: Our proposition is, if the Court please, the answers arecontaining many items which are not relevent to the allegations of the Complaint, it would be our purpose to read in a given paragraph of the Complaint and to state quite frankly in the absence of a denial that the paragraph of the Complaint is, in fact, admitted. THE COURT: That's the legal procedure, what I am getting to. Why if it is not do you. want to get the Answer into the records denying anything in the Complaint? _7_ • ~ Mr. GRIEST: If the Court please, it is already stipulated that that Certificate is subject to direct appeal and the validity of it is challenged and I don't see the purpose in arguing about this paragraph. THE COURT: Well, I don't see the purpose in that either, you either deny or you don't deny it. Alright, Paragraph 8 is admitted with Exhibit 2. Mr. RUSSELL: Paragraph 9 of theComplaint: "Defendant Russell F. Shillito has taken an appeal to the Superior Court of Pennsylvania from the aforesaid order of the Pennsylvania Public Utility Commission and his accompanying petition for a supersedeas was dismissed and the supersedeas refused by per curiam order of the Superior Court dated February 14, 1966." Again, if the Court please, there is nothing in the Answer of either defendant which is inconsistent with the admission. THE COURT: Do you object to its admission? Mr. GRIEST: No your Honor, I see no objection to this, the only reason I put the Answer in is to show that we followed the act as to whether or not - THE COURT: You may get your case in when its your turn. Mr. GRIEST; I know it is not for this Court to decide whether the proceedings were held or not. THE COURT: Paragraph 9 is admitted. Mr.' RUSSELL.: Paragraph 10 of the Complaint: "On January 26, 1966, Plaintiff, pursuant to the provisions of Section 41 of the Act of April 29, 1874, P.L. 73, as amended, 15 P.S, 481, and Section 1 of the Act of June 25, 1885, P.L. 181, as amended, 40 P.S. 831, endeavored to tender to Defendant Russell F. Shillito its condemnation bonds relating to the aforesaid easements, and Defendant would not accept the said bonds." (At this point Mr Russel~,,,as called back to the Conference Table and spoke to Mr. Ryan).. ; -8- .a • v Mr. RUSSELL: I'm sorry, I stand corrected before the Court, in the first s~atutory citation, I said 15 P.S. 481 and it should be 482. THE COURT : Any objection? Mr. GRIEST: No your Honor. THE COURT: Admitted. Mr :'`RUSSELL:: Paragraph 11 of the Complaint: "On February 1, 1966, after notice to Defendant Russell F. Shillito, Orders were. entered by your Honorable Court in the aforesaid proceedings docketed to Nos. 776 and 777 February Term, 1966, approving the aforesaid condemnation bonds relating to the subject easements." Again, if the Court please there is nothing in the Answer of either defendants which constitutes a denial of that paragraph. Mr. GRIEST: May it please the Court, we have now struck the material issue of this proceeding, I think, and that is that this petitioner, Metropolitan Edison Company had knowledge throughout this case since November, 1964, that Mr. Shillito was represented by counsel, that through two hearings before the Public Utility Commission the third day of oral argument before that body they knew that I represented this landowner. There is authority which Mr. Eakin has in his briefcase to support the position that notice of the filing of the bond must be given to counsel in time otherwise this notice is defective and we ask the Gourt that Paragraph No. 11 be read into the record and made a part of it. THE COURT: They are not saying that valid and legal notice was given, that is going to be determined in the other proceeding, they only say here that they gave notice to Mr. Shillito February 1, 1966, that's all they say. Do you deny this? Mr. GRIEST: We are going to - THE COURT: Do you deny that notice was given him? Mr. GRIEST: Yes, a proper notice. -9- ,~ • • ' • f • '~ r ~ • ~ THE COURT: You object. I am going to over-rule your objection and Paragraph No. 11 is admitted as stated. Mr. RUSSELL: Paragraph 13 of the Complaint: "Subsequent to the approval of the aforesaid condemnation bonds, Plaintiff acting by and through its contractors, agents, servants and employees endeavored to go upon, use and occupy the subject right of way easements acquired by it across the aforesaid land of Defendant Russell L. Shillito." And again we state to the Court that there is nothing in Paragraph 13 of the Answer of either defendant to that allegation in the Complaint which constitutes a denial of the averments in the Complaint. THE COURT: Any objection. Mr. EAKIN: Your Honor, I would object this time in that the words acquired by it referring to the easement in question and submit that it is denied by the Answer. We deny that they ever acquired the easement so that is an issue that is not admitted. Mr. GRIEST: May it please the Court further in the proceeding before the Superior Court before March Term, 1967, the Pennsylvania Public Utility Commission filed an answer wherein they said in Paragraph S that the Order to fear appeal does not authorize such entry. Mr.: RUSSELL: If the Court pleases - THE COURT: G7ait a minute. Do you aver that anywhere. Mr. GRIEST: Yes your Honor, we have incorporated that as an Exhibit. THE COURT: Show me where in Paragraph 13 you state anything like that. Mr. GRIEST: I have averred our challenge to the validity of the bond in 77b and 777 February Term. THE COURT: We are not trying that here today. Mr. GRIEST: Pardon. THE COURT: We are not trying that here today. Mr. GRIEST: But the right to enter, your Honor, is conditioned upon the approval of by this Court of_~~~.t bond, that's why I wanted this + • ~ i t X ~ 1 ~ ~ ~, Answer in Paragraph 13 as part of the record. THE COURT: I am going to over-rule the objection and rule that it is admitted in Paragraph 13 that they attempted to enter the defendants land. Mr. RUSSELL: If the Court please, Paragraph 14 of the Complaint: '°U on P learning that Plaintiff acting through its contractors, agents, servants and employees was about to enter upon one of the aforesaid rights of wa y~ Defendant Russell F. Griest, Esq., stated by telephone to Plaintiff's employee while Defendant Russell L. Shillito was on another telephone listening to the said conversation which took place on March 28, 1966 at approximately 2:pp p,m,; ""I am ordering Mr. Shillito to shoot to kill if you go on his land. Do you understand that?"" If the Court please, the Paragraph 14 in the answers of each Defendant admits this statement and there is nothing in the add' verbage of the Answer which constitutes a denial of itional that paragraph in the Complaint, THE COURT: What is your position on Paragraph 14. Mr: EAKIN: Your Honor, I think if you take the Answer to Para 14, it is denied that this statement was made to Mr. Sh• graph illito as an instruction to him. THE COURT: Where do you see that in the Answer? Mr. EAKIN: About half way down on the page - at no time did Defendant Griest instruct defendant Shillito to shoot an one. y Furthermore, your Honor, I would like to say at this time that I was understood the admissions that are read into the record that in a proceeding are admissions that are clearly admitted on the face and if there thing in the Answer of the Defendant that puts it at issu is any should be presented on it, e, then evidence THE COURT: Well, you are talking both ways here. You are sta -11- rung t . ~. ~ + • ~ y • ~, out admitted and then you go around that and talk about a lot of other things. You don't specifically deny the averment. I will over-rule the objection and admit Paragraph 14. Mr. RUSSELL: Paragraph 15 of the Complaint: "The following morning, March 29, 1966, at approximately 11:30 a.m., Defendant Russell L. Shillito stated to Plaintiff's employee at Shillito's hereinabove described 273.14 acre farm located in Monroe Township, Cumberland County, Pennsylvania: ""I will give you fifteen minutes to move your egl.ziprne~zt off my land or I will shoot it full of holes. You know what my lawyer told you yesterday. I carry guns in my car."" Again, if the Court please, the same status as in paragraph 14, they entered this averment as admitted. THE COURT: What is your position on this? Mr. GRIEST and Mr. EAKIN: We have no objection. THE COURT: Paragraph 15 is admitted. Mr._ RUSSELL,: Paragraph 16 of the Complaint: 11Shortly thereafter on March 29, 1966, at approximately 11:45 a.m., Defendant Russell L. Shillito said to an employee of Plaintiff and to several employees of Plaintiff's contractors (at Shillito's aforesaid ?_73.14 acre farm): ""Don't let me catch you in here again. I hope you got everything you want because next time there won't be any warning.71" THE COURT: Your position, Mr. Griest? Mr. GRIEST: I have no objection. THE COURT: Paragraph 16 admitted. Mr. RUSSELL: Paragraph 17: "Plaintiff has not permitted either its, or its contractors', agents or employees to enter upon Plaintiff's aforesaid rights of way across Defendant Russell L. Shillito's aforesaid property since March 29, 1966 in order to avoid any possible physical harm to such personnel or damage to property of Plaintiff or its contractors." -12- t ~ ~ k ~ That Paragraph 17 is admitted in each Answer. THE COURT: Paragraph 17 admitted. Mr..RUSSELL:; If the Court please, I have one further matter which is quite a bit out of the ordinary, but it is important in support of the admissions that have been read into the record. I would like to read into the record Paragraph 22 of the Answer of Russell L. Shillito which reads as follows: "The defendant, Russell L. Shillito, incorporates by reference the allegations contained in paragraphs 3 through 19 of plaintiff's Complaint inclusive." and we read that in as an admission of the various matters that are already in the record as having been admitted. Mr. GRIEST: May it please the Court, since this matter began on Thursday, I believe, of last week, I have been in Court every day since then on active trial work, including -3 straight hours of testimony yesterday and I ask the discretion of the Court we he permitted to amend that particular portion of this Answer to show that the plaintiff's allegations of defendants answer are incorporated by reference. I want it to be complete without restating everything necessary in the counterclaim. THE COURT: Let's take first things first. Do you have any objection to this offer of Paragraph 22 into the record. Paragraph 22 of the Answer of Mr. Shillito. Mr. GRIEST: I do, yes. I ask this Court's permission to amend it - THE COURT: Well, then you do object. Right now you have a motion before the Court so let's dispose of it. Do you object to that admission? Mr. GRIEST: Yes, your Honor. THE COURT: What is the basis for your objection? Mr. GRIEST: It should have said that the allegations 3 through 19 inclusive should have included the answers 3 through 19 inclusive. -13- + ,~, • 1 THE COURT: Then it is incorrect as stated, is that it? Mr. GRIEST: We can't admit, that they'll have irreparable damage or harm without - THE COURT: You have admitted it, haven't you? In Paragraph 22 you have admitted it. Mr. GRIEST: No, Paragraph 19 says -that it is denied that plaintiff will sustain irreparable harm by not entering defendant's premises and it is averred that - THE COURT: Alright, you are off the track again. What is your objection to the admission of Paragraph 22 of your Answer wherein Para ra hs g P 3 through 19 are incorporated into the Complaint, into the Answer, what is your objection to it? Do you wish you hadn't done it? Mr. GRIEST: That's right. THE COURT: That isn't legal grounds for it, is it. Mr. GRIEST: It is a discretionary matter with the Court whether it will permit the amendment. THE COURT: No, it is not. There is no denial. These are sworn statements of your clients aren't they? Mr. GRIEST: That is ordinarily true, your Honor, but I suggest that the Court - THE COURT: We will over-rule the objection. We will take up the matter of amendmea~t when we get to you and you can amend then. Mr, RUSSELL: In keeping with the record, if the Court please, may I beg the indulgence of the Court to go back one moment to Paragraph 4 of the Complaint. THE COURT: Alright. Mr. RUSSELL: The averment that is made there is that plaintiff has the charter right to construct, operate and maintain electric facilities in Monroe Township, Cumberland County, Pennsylvania. Now where we know that is admitted in the answer, there is nothing in that which constitutes -14- r • ~ + ~ ~ } •~ • a denial of the general charter rights of this plaintiff to operate in Monroe Township and we think that consistent with the rules of some of the others that the answer constitutes an admission and no denial of that averment. THE COURT: Well, actually the answer I think counsel should consider this, the Answer does admit the averments of Paragraph 4 and then goes on and avers a legal conclusion. Mr. RUSSELLi Which is not a denial of facts. THE COURT: Right. Do you agree with that, Mr. Griest? Mr. GRIEST: I agree, your Honor, that they have the right to exercise the power but deny that they have properly exercised it with regard to this landowner. THE COURT: You are saying it is defective in this case, this exercise of the power is defective, is that your answer? Mr. GRIEST: Yes. THE COURT: Isn't that a legal conclusion? Mr. GRIEST: Well, it is a question of fact in this case, your Honor. THE COURT: No, it is a question of law, I think, isn't it? Mr. GRIEST: Well, it depends - THE COURT: If it is a question of fact you shouldn't be before the Superior Court on it, should you? Mr. GRIEST: Yes. THE COURT: Well, in my opinion, it is a conclusion of law that to exercise the power here is defective and certainly any decision I make as to whether it's legal or not won't be binding in the Superior Court. It would be foolish for me to say in this case the exercise was not properly taken. I am going to admit the averment of Paragraph 4 with the qualification that there is pending in the Appellate Courts a question as to whether the exercise of the Power of Eminent Domain on the Shillito property is legal. -15- ,1 ~ + • '~ w w Mr. RUSSELL: If the Court please, I don't mean to impose on the Court but would it be perhaps a closer statement to say with respect to this Certificate of Public Convenience issued by the Public Utility Commission in connection with the proposed condemnation of these easements that an appeal is pending before the Superior Court. Mr. GRIEST: If I understand this allegation, your Honor - THE COURT: Well, what I said just follows that. With that qualification we will admit Paragraph 4 of the Complaint. Mr. GRIEST to Mr.Kussell:Are you finished? Mr. RUSSELL: I am not finished with my case, no. Mr. GRIEST: I mean with the reading of your admissions. Mr. RUSSELL: Yes. Mr. GRIEST: May it please the Court I now read into the record allegations Nos. 20 through 33 inclusive of the Answer to which no reply was filed and ask that they be admitted into the record as filed. Mr. FLOWER: There was no Notice to Plead on the Answer. Mr. Griest: Well - THE COURT: Are you introducing this as part of the Plaintiff's case? Mr. GRIEST: I thought we were reading the admissions in the record and I am very sorry if I am - THE COURT: Well, we are, at least allow him to finish with his evidence and then you will have your turn, don't you agree? Mr. <rRIEST: May I take up this matter of allegation 22 with you, your ._._..... ~._ :' T:~:E COUR'~:: ~`>.s to the amendment? Why don't we take it in the order they were uu~n~i:ted, let him finish his case. I noted that you propose to present an amendment and at the proper time you can do that. Mr. GRIEST: The next thing I would like to put on the record, if the Court please, is the notation on the record, if the Court please, that the jurisdiction of the Court is not ~*~-ached in this proceeding -16- ~ . t t • ~ ,«. . ; ~ ~' since no service of the Complaint has bee.7 made on the Defendant. THE COURT: Well, I took care of that in my Order of Court setting this hearing, I think. Mr. GRIEST: Correct, you set a hearing to which we agreed but we have never been served with the Complaint. THE COURT: You were served in Chambers with a copy of this Complaint. Mr. Griest: I wasn't asked to accept service of it. THE COURT: You certainly didn't make any protest when you took a copy of the Complaint. Mr. GRIEST: That is correct and as far as Mr. Shillito is concerned he never accepted service of it. THE COURT: Alright, we will adjourn this case until Friday morning at 10:00 o'clock so service may be made on all of them. Mr. GRIEST: I did not ask that Court be adjourned. THE COURT: Well, if you want served, we will see that you are served. Mr.'RUSSELL: I offer for the record the Proof of Service of James D. Flower, Esquire, of having served copies of this Complaint on Russell F. Griest, Esquire and on Russell L. Shillito on March 31, 1966, Mr. Griest at 10:30 a.m, and Mr. Shillito at 11:00 o'clock a.m. I would further say to the Court that the defendants have filed answers in this Court to this Complaint and even if they allegedly were not served, this Proof of Service has established that they were. THE COURT: I was a witness to the service. If he wants to contest it we are going to give him an opportunity to contest it because he will file an appeal to a higher Court saying that he was not served. Mr. GRIEST: Your Honor, we withdraw the - THE COURT: Court is adjourned until 10:00 o'clock Friday morning. -17- # ~ ~ ~~ ~~ ~ METROPOLITAN EDISON COMPANY, Plaintiff VS. RUSSELL L. SHILLITO and . RUSSELL F. GRIEST, ESQ., . Defendants i ~- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 1 MARCH TERM, 1966 SITTING IN EQUITY ORDER OF COURT AND NOW, April n, 1966, at 11:00 o'clock, A.M., E.S.T., hearing fixed for Friday, April 8, 1966, at 10:00 o'clock, A.M., E.S.T., is continued to Saturday, April 9, 1966, at 9:00 o'clock, A.M., E.S.T. By the Court, -18- /s/ Clinton R. Weidner J. ~~ A P PEA RAN C E S JAMES D. FLOWER, ESQ. SAMUEL B. RUSSELL, ESQ. JOHN M. EAKIN, ESQ. RUSSELL F. GRIEST, ESQ. W. D. HOLLINGER J. NELSON GREEN RUSSELL F. SHILLITO i -19- Attorney for Plaintiff Attorney for Plaintiff Attorney for Defendant Attorney for Defendant Witness for Plaintiff Witness for Plaintiff Defendant i" ' j. ~ ~ ~ . ~ ~ MR. GRIEST: May it please the Court, in the event the Court feels I was discourteous the other day, I want to assure the Court it was unintentional and the notation on the record was solely for the purpose of getting the right to file an amended answer to correct the defect on behalf of my client and I certainly want to apologize to you. THE COURT: Mr. Griest, what you were doing was denying that the Court had jurisdiction because you weren't served, and you were served in the presence of the Court which, in my opinion, would put you in contempt, and that was the reason that I wanted to give you an opportunity to file any papers you wanted to file objecting to that jurisdiction, and you have had that opportunity now. Mr. GRIEST: Thank you, Your Honor. THE COURT: Alright, you may proceed. Let the record show that no further objection to jurisdiction was entered in the interim. Mr. EA.KIN: May it please the Court, I have served on the plaintiff a petition to amend the answer and I enclose an amended answer, and I would just like to hand these up at this time to be acted on by the Court at the appropriate time. THE COURT: Alright, we will act on it later. W. D. HOLLINGER, a witness, called by and on behalf of the plaintiff, being duly sworn, was examined and testified as follows: BY MR. RUSSELL: Q. What is your name and address, please? A. My name is W. D. Hollinger. My address is 300 Stephens Avenue, Reading, Pennsylvania. Q. By whom are you employed? A. I am employed by Metropolitan Edison Company. Q. In what capacity? A. In the capacity as Assistant Secretary and Assistant Treasurer. Q. In the capacity as Assistant Secretary, do you have in your custody the corporate minutes of the Board of directors of that Company? A. I do. -20- • . ~' • ~ ~. { • ~- • Q. Do you have with you the original minutes of that corporation's Board of Directors meeting which was held on September 25, 1964? A. I do. Q. And in those minutes is there contained any resolution relating to the condemnation of certain proposed easements over the property of Russell F. Shillito in Monroe Township, Cumberland County? A. Yes sir. There is. Q. Do you have with you copies of that resolution? A. I have. Mr. RUSSELL: I ask to have this identified as Plaintiff's Exhibit 1. (Resolution received and marked Plaintiff's Exhibit 1 and given to the Court for approval). Mr. RUSSELL: I ask that this be marked Plaintiff's Exhibit 2. Mr. GRIEST: Will you please identify Exhibit 2. Mr. RUSSELL: Exhibit 2 would be 44R, - B-2944R and Exhibit 3 would be B-2945R. THE COURT: Are these the same as attached to your complaint? Mr. RUSSELL: Incorporated by reference, yes. THE COURT: But these are the same? Mr. RUSSELL: Yes. Q. Now, Mr. Hollinger, I show you a resolution, a preamble and resolutiox~ which has been marked for identification as plaintiff's Exhibit No. 1, is that a true and correct copy of the resolution which you have mentioned as having been contained in your Board of Directors meeting on September 24, 1964? A. Yes sir. Q. And in that resolution is reference made to any plans? A. Yes sir, there is. Q. What are those plans numbered? A. The plans, property plan Nos. are B-2944R and B-2945R. Q. Were those plans before your company's board of directors at the previously mentioned meeting? A. Yes sir, they were. I have copies of these plot plans which have been initialed by the secretary and dated at the board meeting. Q. Were they the plans that were in fact before the board meeting? A. Yes sir. Q. I show you plan which has been marked for identification as plaintiff's Exhibits 2 and 3. Will you state whether or not those were the same plans which were before your company' s previously mentioned board of d irectors meeting? A. Yes sir. They are identicially the same. CROSS-EXAMINE -21- BY MR. GRIEST: Q. Mr. Hollinger, what was the date of that resolution of the meeting? A. The date of the resolution of the meeting was September 25, 1964. Q. In addition to the exhibits identified as plaintiff's Exhibits 1, 2 and 3, which you have testified about, was there anything else attached to the resolution? A. Meaning what, if I may ask. Q. Was there any other documents attached to this resolution? A. No sir. Q. In other words, there were no other plans, specifications or exhibits attached? A. No sir. Q. And the only plans attached were these identified as plaintiff's exhibits 2 and 3? A. Yes sir. Q. There is nothing in here to indicate the servitude to be placed on Mr. Shillito's land, is there? A. No sir. Mr. RUSSELL: If the Court please, this is asking for a legal conclusion. THE COURT: I will sustain the objection, it does call for a legal conclusion. Mr.. GRIEST Q. There was not anything in the resolution to indicate the number of towers to be placed upon Mr. Shillito's land? A. No sir. Q. Or the location of them? A. No sir. Q. Or the distance between them? A. No sir. Q. Nor was there anything in the resolution or plans to indicate the distance from his building? A. No sir. Mr. EAKIN: If it please the Court, I know it is out of order for two attorneys to cross-examine the witness, but on behalf of defendant Griest, I submit it would not be proper in this case that I also ask questions and since this will probably recur with every witness, I would just bring it before the Court at this time. THE COURT: Mr. Flower, what is your position on it. We have a Rule of Court on it. _22_ f • ~ ~ ~ ; ~ y Mr. FLOWER: It is very unusual, but so long as Mr. Griest is handling it, I feel he should back out of the proceedings. THE COURT: That is usually true, but because of the technical nature of this proceeding, it is better that Mr. Griest be in it. Yet, I don't want to give them two chances to question a witness, that doesn't seem fair either. Mr. Eakin, couldn't you have Mr. Griest ask the questions? Mr. EAKIN: We will handle it however the Court wishes the matter to be handled. THE COURT: I think we better handle it that way. I don't like to take Mr. Griest out of the cross-examination because of the technical nature of the proceeding. We will allow him to question the witnesses. Mr. EAKIN: That is how we will handle it, Your Honor. CROSS-EXAMINATION CONTINUED BY MR. GRIEST: Q. Did your company prepare the survey identified as plaintiff's exhibits 2 and 3? A. Yes sir. Q. Did you not employ Air Surveys, Inc, to do that? Mr. RUSSELL: Mr. Hollinger, just testify to the extent of your knowledge. A. I do not know that. I cannot answer that question for you. I am sorry. Q. You mean you do not know whether your compan~° prepared it or not? A. No. I know that they prepared these exhibits, if these are the ones that you are referring to. These were made by our Engineering Department. That I know. Q. Plaintiff's exhibits 2 and 3? A. Yes sir. Q. Were they made from work done by Air Surveys, Inc. or your own? A. That I really could not answer. I do not know. Q. For the purpose of preparation, regardless by whom it was done, your company is an independent company, and Mr. Shillito permitted them to perform survey work? A. I did not understand, Mr. Griest. I am sorry. Q. Mr. Shillito permitted entry of his land for survey work so that these exhibits could be prepar~~l? 1- A. That I cannot answer. I do not know. Mr. FLOWER: If the Court please, I believe the cross-examination as to knowing who performed the survey work and who prepared the surveys - THE COURT: It isn't being very fruitful. Confine your cross- examination to the evidence which has been presented. Mr. GRIEST: That's all, Your Honor. THE COURT: Mr. Hollinger, you may step down. Mr. RUSSELL: One more question. Q. The preamble and resolutions which are set forth as exhibit A with attachments 2 and 3 have never been repealed, revoked or amended in any way since it was originally adopted at the Board of Directors meeting? A. No sir, they have not. Mr. RUSSELL: That's all. J. NELSON GREEN, a witness called by and on behalf of the Plaintiff, being duly sworn, was examined and testified as follow- By MR. RUSSELL: Q. What is your name and address? A• J. Nelson Green. Q. By whom are you employed? A. Metropolitan Edison Company. Q. In what capacity? A. Chief Electrical Engineer. Q. How long have you been in the employ of the Company? A. Since 1929. Q. Would you speak a little louder? A. Since 1929. Q. Are you a graduate engineer? A. Yes. Q. From what Institution? A. Lafayette College, Easton, Pennsylvania. Q. Are you a registered professional engineer of Pennsylvania? A. Yes. Q. Are you familiar with the 500,000 volt transmission. system, the part of which is involved in this proceeding regarding the property of Russell Shillito? A. Yes sir. -24- ~ ~, Q• A. M J 1 • s . i •~ . Or properties of Russell Shillito? Yes. Q. Are you familiar with the 273 acre tract owned by Mr. Shillito in Monroe Township, Cumberland County? A. Yes. Q. Are you also familiar with a 101 acre tract owned by Mr. Shillito in the same Township? A. Yes. Q. Mr. Green, I show you plan which has been marked as plaintiff's exhibit 2. Was that prepared under your supervision? A. Yes. Q. And which of the Shillito farms in Monroe Township does this portra ? A. This plan portrays the 101 acre tract, y Q. I also show you a plan marked as plaintiff's exhibit 3. Which property does this portray? A. This plan portrays the 273 acre tract. Q. Have you actually been on the site of these several properties to observe them? A. I have. Q. Are you then familiar with the location, dimension and physical features of those two farms? A• Yes. Q. And pn each of these two plans would you describe how the location of the right-of-way easement is identified? A. It is identified by a red line. Q. And that represents what? A. It represents the center of the proposed right-of-way. Q. Is it correct that the total area of the rig`r~ts-of-way extends for a distance of 100 feet on either side of that center line? A. Yes. Q. And that is in respect to each plan? A. Yes. Q. Can you state whether or not your company's right-of-way crossin each of these properties, involves a taking of any streams, rivegs or waters of the Commonwealth of Pennsylvania? A• It does not. Q• Or the taking of any public property or the property of another ubl' service company? p is A• It does not. Q public worshgp~f any property. used as a burial ground or place of A. It does not. -25- ,. . i Q. Or the taking of a dwelling house or reasonable cartilage not to be less than 300 feet appurtenant thereto? A. It does not. Q. Would you describe volt line whi h i briefly the nature and character of the 500 000 A. c s involved in The 500,000 volt line is kn this pr , oceeding? own conductors suspended therefrom. as the steel tower line with aluminum Q. A What is the nature The and purpose of this line? . purpose of the of the public. line is to transmit electrical energy for the use Q. Can you describe briefly the length of this line which in part crosses these two Shillito properties? A. The length of the Metropolitan Edison portion of this transmission line is approximately 44 miles. Q. And that extends from where to where? A. It extends from the Carlisle-Mechanicsburg highway to a point south of York at the junction of the Philadelphia Electric territory and Metropolitan Edison territory. Q. And where approximately on the Carlisle-Mechanicsburg road is the first terminus that you mentioned? A• Approximately four miles west of Mechanicsburg. Q. And is that Route 641? A. Yes. Q• Approximately how far from the 273 acre Shillito property is that terminus that you first mentioned? A. Approximately four miles. Q. Now did your company, or is your company constructing this steel tower line with its own forces? A. No sir. Q. How is it going about effecting the construction? A• Would you repeat the question. (Question repeated by reporter: How is it going about effecting the construction?) A. Well, the magnitude of the job is too much for our forces and we have hired contractors to do the work. Q. Will you tell us who those contractors are? A. Well, the construction managers is a firm known as Stone and Webster Engineering Corporation. Mr. GRIEST: I'm sorry, I didn't hear that. Mr. Green: Stone and Webster Engineering Corporation. The construction contractor is the Hoosier Construction Company. Q. Will you state when this line is scheduled to be energized? A. January 1, 1967. -26- ~ ~ * • '~ .~ ~, Q. And can you state briefly the nature and extent of the work in construction of this line which has already taken place? A. The foundations for this 44 mile section are completed to approximately 67~. Q. What is the total investment which your company will have upon the completion of the construction of this 44 mile section of the line? A• Approximately six million dollars. Q. Will you describe briefly the remainder of the work required to be done in constructing this stretch of line of 44 miles? A. The remainder of the work consists of course in completing the foundation, the erection of the steel towers and the stringing of the conductors, Q. Will you state whether or not any further core boring work is required in connection with this line? A. There is core boring work required on two of the tower locations on the Shillito 273 acre tract. Q. Is that the only core boring yet to be done? A. That is the only core boring remaining to be done on the entire line. Q. What is the purpose of such core boring? A. The purpose of the core boring is to determine the nature of the soil. From the nature of the soil the engineers determine what foundations are required for the proper support of the steel tower. Q. And what takes place then? A• When that is determined the drawings are given to the construction people who then prepare to go ahead with the construction of the foundation. Q. Has your company scheduled a date for the construction of the towers on this line? A• Yes. Tower erection is to start in the middle or the latter part of May, 1966. Q. And that is to extend for approximately how long? A. That will extend approximately from May until October, 1966. Q. Have you scheduled the stringing of the conductors on this tower line? A• Yes. The stringing of conductors is scheduled to start in the earl part of August, 1966. y Q. And has the construction schedule been heretofore set up involvin any particular sequence or progression of construction? g A• The erection of the towers and the stringing of the conductors ha been set up to proceed from a northerly to a southerly direction,ve I am using the terms north and south as a construction north and south. It may be northwest, southeast at various points along the line but let us assume that Mechanicsburg is north of Peach Bottom Pennsylvania and therefore it is generally a north and south direction.. ' -2 7- • , ~ ~ 1 Q• Is it correct then that you have scheduled construction to commence at the terminus of this line which is at the Carlisle-Mechanicsburg road? A• That is correct. Q• What purpose, if any, is there for scheduling of construction in any such progressional sequence as you had mentioned? A• In any large construction an orderl in order to economically deplore yourpforces~ion must be delineated Q• Well, will you just describe briefly how such a construction pro ram proceeds with material, labor and otherwise? g A. Well, it is a tremendous co-ordinating job between the purchase the manufacturer and the delivery of these materials. ' a vast amount of materials required, it must be coordinatedefor the best over-all economic construction costs. Q• How is the delivery of tower steel, for example, effected? A. The tower steel has been ordered in the manner in which the towers will be delivered to the site from the northern end first and then proceed from there to the South. We have already received 27 towers for this, call it the upper end of the line. Q. And where is that material? A• Some of that material is already deposited on the various pro ertie P s. Q• Starting from the north end of this line? A• Starting from the northerly end. Q• Now, in the event that your company were not to occupy and use the right-of-way over the two Shillito properties in connection with this progression and construction from north to south as you have described it, what affect, if any, would that have on your construction progression for this line? A• If we were not granted injunctive relief to permit us to continue the construction of this line there would be additional cost and further delay because of the unscheduling of the program and if the delay should be of a serious long nature from the absolute date of placing this line in service, if that were to be delayed, then the cost would be substantial. Q. Well, Mr. Green, take the latter of contingencies, namely that thi 44 mile stretch of lin e could not be placed beginning of 1967 because of the in service the s gap on the could you. be more specific as to th Shillito properties A e nature your company would sustain? of the damages which • I could give you one specific answer. arithmetic. The i t w b p n erest on that investment $1000.00 a day, alone would be u to p Q• A• Now, you say that investment alone, meaning I mean the Metropolita what? n Edison investment of line, their 44 mile portion of the line, this portion of t he Q• Which is what? A• Which is six million dollars. Q• Suppose the matter, getting back to construction, the method of construction of this line, when tower steel and other material is delivered, where and when do these deliveries take place in a program such as this? _2g_ 1 Q. Is the steel, for example, delivered ever to your York headquarters? A. No, It is delivered to various points along the line which has been established as receiving points and from there it is trucked to the individual tower location. Q. In effect, the deliveries are scheduled along the line the towers are to be erected? A. Yes. Q. And in terms of time, when do the deliveries of the respective portions of the tower for this line take place? Is it only once? A. No. No, the first delivery was about two weeks ago and the last delivery was about Monday of last week, that is the way it is scheduled. Q. As a matter of information, Mr. Green, can the delivery of the material and the handling of your construction forces be shifted from place to place along this 44 mile stretch of line with ease or is it with difficulty? A. The delivery of material, it is obvious to state it is common today, and is a serious thing, you do not just upset the delivery of material. It is ordered and scheduled. If you don't take them you may not get them and as far as the deployment of the construction forces, that represents a considerable amount of money to continually juggle your schedule. Q. Can you establish with any degree of certainty what economic damages your company would sustain if it would have to by-pass these Shillito properties? A. No sir. Q. Can you state whether or not you would have damages if you did have to by-pass them with this construction? A. Yes sir. Q. And by yes, you mean what? fem. We would have considerable damages. CROSS-EXAMINE BY MR. GRIEST: Q. How long have you been with Metropolitan Edison Company? A. Since 1929. Q. And as Chief Electrical Engineer for them, have you in your experience since 1929 ever constructed a 500,000 volt line? A. No sir. Q. Have you personally, for anyone else, ever designed for construction a 500,000 volt line? A. No sir. Q. This is the first one of its kind in this area? A. The first 500,000 volt line in this area. Q. You indicated in your testimony there would be substantial damages if you h.ad to by-pass the Shillito properties, is that correct? A. Yes sir. Q. Your initial route selection was 4000 feet shorter than this one? A. Yes sir. -29- Q• A. a w Mr. RUSSELL: If the Court please, I would like to interpose at this point an objection to this line of questioning. The issue of •. the selection of this route and the reasonable selection of this route is an issue which wasproperly before the Pennsylvania Public Utility Cony .fission.. That adrni?~.istrative agency functioned on that issue, determined it and issued a Certificate of Public Convenience which is in the record as ~_n;i_~_d:.ated by the p n eadings showing that in its determination this propov~~ exercise of the power of eminent domain. across this property for the purpose of constructing this line was necessary and we respectfully submit that that issue as to selection of route is not properly an issue for the Court. ~ ' + ~, ~ +, In a more direct route? Yes sir. Mr. GRIEST: May it please the C;:rt, on direct examination, the witness Baas asked and permitted t:; testify on the substantial damages in the event they had to by-pass Mr. Shillito's property and I would like to question this witness in regard to the creditabilit~~~ on that damage issue and to show that these substantial damages would be limited. is the most: expeditious route. You are using this only to effect creditability? THE COURT: You will agree that this Court can't decide whether this Mr. GRIEST: Yes sir. THE COURT: Alright, we will overrule the objection and I will assure you that the matter of the propriety or effect of that certificate will not be involved here, but he has the right to question the creditabilit~.~. Mr. RUSSELL: If the Court please, if I had used the language by-pass and I think the record will clearly show it is not from the point of view of a shorter route around the Shillito property, but by-pass -30- ~ ~ * . a *~ in the sense of construction up to the Shillito property, then a gap, and picking up beyond the Shillito property. Proceed with your questions. THE COURT: Do you understand that? We will overrule the objection. Mr. GRIEST: Would you repeat the question? (Question repeated by stenographer: You indicated in your testimony that there would be substantial damages if you had to by-pass the Shillito property, is that correct?) THE COURT: No, it was a question about an alternate route having been proposed initially. Mr. RUSSELL: I had allowed him to answer that question. THE COURT: Well, to be sure, was there another alternate route before this one? A. Yes. THE COURT: Alright, Mr. Griest, proceed. Q. Now, the prime area of the route selected was north of the Williams Grove Park and Speedway, was it not? A. Yes. Q, And that is the one that was 4000 feet shorter than this present Shillito route? A. Yes. Q, And the third alternate route was 8000 feet longer, is that correct? A. Approximately so, yes. Q, So that bg= by-passing the Shillito property you would save 4000 lineal feet of construction, would you not? A. Assuming that we could have secured all the necessary easements, the line would have been that much shorter is the answer. Yes. Q. You had the same right of condemnation over the northern route, the shorter route, did you not? THE COURT: This calls for a legal conclusion, does it not? I think so. ~ Mr . GRTE S T Q. Now, Mr. Green, did your company do the survey work on the Shillito property? A, We did not do the initial survey work. Once again because of the magnitude of the job we needed assistance so we hired a contractor. -31- Q. And to get that assistance, you hired Air Surveys, Inc.? A. Yes. Q. And they did A. Mr. RUSSELL: somewhat leading. Mr. GRIEST: THE COURT: A. Yes. this work? Is that correct? May it please the Court, I think this question is When you say this work, you mean what? The survey work. did they do any work for you? By Mr. GRIEST: Q. Did they do the survey work? A. They did some survey work, yes. Q. Did they do the field work required to prepare plaintiff's exhibits 2 and 3? A. No. Q. Wl~o did that? A. Metropolitan Edison Company. Q. When did they do that? A . When . Mr. GRIEST: Yes. A. The summer of 1964, I think. Q. Are you then saying, Mr. Green, that these, plaintiff's Exhibits 2 and 3 are based on the work of Metropolitan Edison Company during the summer of 1964? A. They are. Q. And these Exhibits are the result of actual field work by your company? A. They are not. Q. These exhibits, then Mr. Green, are merely estimates based upon aerial photographs? A. Aerial photographs and deed descriptions. Q. But not based upon field survey work? A. They are not. Q. And they are accurate up to 5%? A. I cannot give you a percentage. They are substantially accurate. That is the best I can say. Q. Did you give me an estimate before the Public. Utility Commission under oath? A. I do not remember. Q. Do you remember testifying before the Public Utility Commission? A. Yes sir. -32- r- ~ ~ ~ ~ w « ~ ~ Q• Were you asked about the accuracy of these exhibits which ou a now testifying about? y re A• I do not remember that exact testimony. Q• Well, these are the same two exhibits though? A• Yes sir. Q• They have not been changed? A• No sir. Q• I ask you that the Public Utility Commission hearing held Monda January 4, 1965, on page 62, line 19 as follows: y' survey which you had made and to which was made canlsouerial us any statement as to the degree of accurac of~it~ y give answered the degree of accurac is within 5 feet. Your answer? You answered Mr. RyanY Was that your THE COURT: Wait, let him answer your question before you ask anothe r one. Mr. GRIEST: I wanted to indicate to Mr. Green that the question was asked by Mr. Ryan. Q• Would it help you if I showed ou the transcript of the testimon ~ A• Yes. It would, y y• ~• NIr. Green, on page 62 I call your attention to the top of the Page, line 2 which says Mr. Ryan is doing the questioning, is that correct? A• Yes. Q• Then line 19, the question asked by Mr. and the answer? A• This aerial survey which you bade made made out, can you give us any statement of it? Answer: The degree of accuracy Q• Was that your answer? A• Yes. Ryan, would you read that and to which, and which was as to the degree of accuracy is within five feet. Q• You don't now disagree with that, Mr. Green? A• No. Q• So that when choosing any courses or distances on these exhibits there is a variance in that length up to five feet? A• Yes. Mr. GRIEST: I'm sorry, I didn't hear you. Mr. GREEN: Yes• Q• Now, the method of preparation of the exhibits, Mr. Green was deed records and aerial photographs, is that correct, sir? the A• Yes. ' Q• The method then of placing the red line upon the respective ex was to draw it without reference to monuments habits A• Yes. is that correct? -33- w, ~ ` Q. In other words, you took ~:he composite photographs of the 44 miles in length and put them together, did you not? A. In respect to the Shillito property, we took the adjacent deeds. We took Mr. Shillito's deed and pieced it together. Q. And after you had it pieced together,you put the red line on the exhibits? A. Yes. Q. Now, this was not done by you personally, putting the red line on the exhibits? A. Well, not personally, no. Under my direction. Q. And did you personally check it for accuracy? A. In a general way, yes. Q. And how accurate is the location of the red line on the exhibits? A. It is reasonably accurate. Q. Would that right-of-way be within 5 feet or would it be a greater variance? A. Depending on the accuracy of the deed, it could vary somewhat. Q. What I am getting at, could it vary more than 5 feet in location? A. I would say it possibly could in length because of the, it won't vary much in direction or the angle point, but it may vary somewhat in total length, yes. Q. I believe when you testified before, you were able to scale distances and to demonstrate a variance or lack of variance, could we take one specific example here. From Exhibit, I believe Plaintiff's Exhibit 3, I don't find where it is marked, it is Exhibit B-2945R, and again for the purpose of identification on this particular Exhibit, the red line delineates the right-of-way, is that correct? A. The center of the right-of-way. Q. Now, located on Mr. Shillito's tract, this 273 acre tract, is the Reading Railroad Company line, right? A. Yes. Q. And intersecting with that Railroad Company line is Legislative Route 21012, is that correct? A . Yes . Q. Could you tell me, sir, the distance from the intersection of that Railroad and public highway to the right-of-way? A. To the nearest edge of the right-of-way. Q. Well, what does this red line mean? A. The center line of the right-of-way. Q. Alright, lets take it from that line? A. In the neighborhood of 800 feet. Q. Now, Mr. Green, I don't want to confuse you, but I think you measured on the draft a line which I did not ask for. A. You said, I thought I understood you to say - Mr. RUSSELL: Let him explain what he measured. -34- ~ ~ ~. + • i ~ ~ ~ ~~ ~ By MR. GRIEST: Q. Did you measure this line beginning at the Reading Railroad Company intersection and the Shillito line to the southern most terminus of the red line on the draft, didn't y ou? Isn't that the measurement you gave me? A. If you repeat yo ur question, I will try it again. Q. Now, I asked you to note the intersection of the Reading Railroad Company line with Legislative Route 21012 and tell me from the nearest point on the intersection the distance to the red line along the road? A. Along the public highway. Q. Yes. A. OK. Q. Now, you gave me A. Approximately 1600 feet. Q. Now, it is approximately 1600 feet, is that correct? A. Yes. Q. Now, is that subject to a variance greater than 5 feet? A. It could be. Q. It could be as much as 25 feet in 1600? A. It could be. Q. Now, since Mr. Shillito wants to contain cattle here, he has to erect a fence at the edge of that right-of-way, doesn't he? Mr. RUSSELL: To which edge of the right-of-way? Mr. GRIEST: The southern edge. Q. We are talking about the southern edge of the right-of-way, is that correct? A. Yes, this right of way is 100 feet on either side of the THE COURT: Only one person should talk at one time. All three of you are talking and you can't expect the secretary to get a true copy for the record with all three talking at one time. Mr. GRIEST: I am very sorry, your Honor. THE COURT: What was the question? Mr. GRIEST: I will withdraw the question and re-ask it. Q. The red line delineates what you say is the center line of the right- of-way? A. Yes. Q. The width of this right of way is 100 feet on either side of the red line, is that correct? A. Yes. Q. So that the limit, and this would be the southern limit on this side of the red line, wouldn't it? A. Yes. -35- ~ ~ ~ a' + i ~~ i Q. Now, indicating a point toward the Reading Railroad Company tract, right, along the highway, the limit of your right-of-way then is 100 feet toward the Reading Railroad, right? A. Yes. Q. Now, if we use the Reading Railroad and the distance that you measured, that can vary 25 feet? A. Yes. Q. So Mr. Shillito could not know within 25 feet the location at this, of the limit of your right of way, is that correct? Based upon this draft? A. To me it is obvious that the center line of the right-of-way crosses over the bridge at the Yellow Breeches Creek. It wouldn't be hard to determine how much fence he would need, if that is your question. Q. Well, I am away from the fence. I left the fence go. I said if we used 100 feet south toward the Railroad along the highway, that would be the south edge of your right-of-way, wouldn't it? A. Yes. Q. Now, Mr. Shillito takes his engineer out on the line such as a comparable man to you arnd measures from this intersection of the Railroad tracks along the public road to that point 100 feet south of the red line, he could not tell within 25 feet the exact location of the edge of that right-of-way? A. If he used that method, the answer is yes. He could not tell. If he uses the method I would use he could tell pretty closely. Q. Alright, now I want to go to the one you measured before, will you indicate on this draft the compass direction north and south so that I can refer to it? A. North is generally to the top of the page. Q. And if I say to measure from the Reading Railroad tract on the east side of Mr. Shillito's 273 acre farm where your line accesses or say enters as the case may be, what is that distance from the red line to the Railroad tracks? A. Approximately 800 feet. Q. Now, I want to remind you - A. Or another way it is 1730 feet from his northeasterly corner. Q. I want you to recheck your scale we had mentioned on this print, we had trouble with that on previous testimony, but we are alright now. Then this distance is 800 feet, you say? A. Approximately. Q. This other distance is 1730 feet? A. 1730 feet is a more direct distance there because that starts at a property corner. Q. And could this vary, if we measured it, as much as 25 feet? A. The 1730 foot dimension would not vary more than 25 feet, I assure you. Q. But it could vary 25 feet? A. The railroad distance could possibly vary. Qe Now, if we wanted to construct a fence or this edge of your right- of-way north or south, we are subject then to a 25 foot error? -36: ! ~ ~~ Mr. RUSSELL: • ~ ~ -~ ~ • If the Court please, I don't think this question is very clear, he is talking about constructing a fence along t~~.~~ southern edge of the right-of-way. Mr. GRIEST; Did I say south or North in this question? THE COURT: Well, I think he said there might be an error of 25 feet and that is what he said numerous times, there might be. We will sustain the objection. It i_s repetitious. Mr. GRIEST: Q. Now, when the survey crews were on the land, I suppose they had this exhibit? A. No sir. Q. You mean they just regard this line, this red line on the exhibit, as the right-of-way? A. I don't quite understand your question. They did not have this print. Q. When your survey crews did the field work, they didn't have this exhibit? A. By survey crews do you mean ours, Metropolitan Edison Survey crews. Mr. GRIEST: Yes. A. No, they did some work in preparation of this drawing. They did not have the finished drawing when they first went on the field. Q. How did they get the point of time straightened out, I am now referring to the time subsequent to the preparation of this exhibit. Was there survey work done on the Shillito farm? A. There has been some survey work done since the preparation of this exhibit. Yes. Q. And there has been some stakes put out there on the right-of-way since the preparation of this exhibit? A. Yes sir, Q. Did the survey crew, when placing the stakes and doing the additional work, use this exhibit? A. They would have had this along, Yes. Q. Well, this is the one you had in the corporate resolution? A. Yes. Q. Do you know whether they had it along? A. I assume they did. Q. But you don't know? A. There were other maps involved, which of course, agree with this. Whether they had this particular map along, I don't know. -37- Q. So that when the stakes were placed on the Shillito tract, you cannot then state whether they wereplaced with reference to this particular exhibit? A. They may not have been placed in reference to this particular exhibit as a piece of paper, but they were placed in reference to these dimensions. Yes. Q. Now, it is a fact that they did place stakes and posts upon the tract? A. Yes. Q. These have some signifience, do they not? A. Yes. • •. Q. They outline the limits of your right-of-way? A. I do not believe we have put stakes on the extreme limits of the right-of-wad;, but we have put stakes to identify the center line of the right-of-way. Q. Now, what I am going to try to do, Mr. Green, is to follow your draft of the land as we go on. Sometimes when you hit such as the Yellow Breeches Creek, you would not put a stake in the center line of that would you? You wouldn't go out in the middle of the creek and drive a stake in? A. Not normally. Q. The same is true of a public highway? A. Yes. Q. It would not then be in the center line of the right-of-way but someplace else? A. It could be. Q. And do you sometimes stake the north or south limits of your right-of-way? A. We do when there is tree cutting involved. We may stake that so the tree trimmers may have a dividing line. Q. Now, can you state whether there is a turn or bend in the line? A. Yes. Q. There is a turn or bend in this line on the Shillito tract? A. Yes. Q. What color of stake was used to identify that turn? A. Idid not see the stake. Usually we use oak stakes. Wood stakes. Q. Then it would have a legand on the top? A. It may have a number which the surveyor could refer to. Q. Do you know whether the stake placed at the bend of the Shillito and I better point this out so we get the thing going for clarification, this is the only bend in the tract, is it not? A. Yes. Q. Would you like to put a circle around that so we can identify it? A. Yes. (Circle drawn on draft by Mr. Green to identify stake at bend). Q. We are now talking about a stake within a circle which you marked on the draft, right? -38- A. Yes. 4' ~ 1 ~ M t Q. You don't know whether that stake, as placed, was on the north side of the right-of-way, the south side of the right-of-way, or the center line, do you? A. I assume it was on the center line. Q. You are assuming that because you don't know? A. I did not see the stake. THE COURT: What is the purpose of this line of questioning, Mr. Griest? Mr. GRIEST: Mr. Russell asked if the location of this line violated the requirement of_ being 300 feet within the curtiledge and I am now getting to that question, the dwelling house. THE COURT: This man does not know if a stake was put there unless he would go out and see it and he wouldn't know if that was the same stake because he didn't put it in. This is all a waste of time. I am giving you an opportunity to cross-examine the man but you certainly could not impeach him by asking him something he could not possibly know. Mr. GRIEST: Your Honor, this witness had previously testified that the line, based on his assumption, is within 280 feet of the corn barn and has, on other occasions, said it is 280 feet of the buildings. THE COURT: Well, what do I care if it is 100 feet or 1000 feet from the house. That isn't at issue before me. That is before the Appellate Court. I am not going to decide this case on whether this line is within 100 feet from the house. That is not important to me. Mr. GRIEST: I think the Court must identify the exact location of the line in order to permit entry because they couldn't possibly have any right to enter other land than this particular 200 feet. THE COURT: Alright, this is true if they entered land which they shouldn't have entered. But I couldn't attempt to describe the land they may enter. That is already a matter of record. If you have some purpose in questioning him about it, go ahead, but I can't see any possible point in asking him about it. -39- ,~ Q• . ~. ~ .. s i~ Is that stake which we have reference to in the circle on the map within 280 feet of Mr. Shillito's buildings? Mr. RUSSELL: I object to this because this witness has already stated he hasn't seen the stake. THE COURT: Are you asking about the exact location of the stake or about the location of the stake on the drawing? Mr. GRIEST: On the drawing, Your Honor. Since he has not seen the stake. Mr. GREEN: I can answer that question. It is not within 280 feet of Mr. Shillito's building. Mr. GRIEST: Pardon. Mr. Green: It is not within 280 feet of Mr. Shillito's buildings. Q. Is it close to the dwelling? A. It is not within 280 feet of Mr. Shillito's dwelling. Q. Well, is it close to the buildings? A. It is somewhat less, well, I can scale the drawing if you wish. Q. Pardon? A. I don't remember the figure. I can scale the drawing assuming the corn crib is what you are interested in. Q. You used that figure before the Public Utility Commission under oath, didn't you? A. Yes sir. I would say the corn crib is approximately 380 feet from the center line of the proposed right-of-way. Q. And that makes it 280 feet from the South edge? A. That makes the corn crib approximately 280 feet from the south edge of the right-of-way. Q. Have you ever supplied Mr. Shillito with the location of the towers on his land? A. The answer is no, other than to establish where the angle tower is. Q. And this draft does not indicate their location? A. No sir. Q. Have you ever supplied him with the width of the towers to be constructed across his property? Mr. RUSSELL: I would have to object to this line of questioning, the nature of the precise towers, the location, the size, etc. is not an issue before this Court, that is before the PUC. -40- x THE COURT: That's true. I will have to overrule you again because this is cross examination and he claims he is trying to impeach him by this testimony. I will have to overrule the objection for the record. A. The answer is no. Q. Have you ever discussed with Mr. Shillito the length of the towers on this right of way? A. I do not think the question was ever asked by Mr. Shillito. The answer is no. t r ~ ~ ~ ~~ Q. You were not asked that before the PUC? Mr. FLOWER: If the Court please, I - Mr. GRIEST: If it please the Court - THE COURT: I have already overruled the objection, -41- THE COURT: Well, he is asking him whether he was asked that question before the PUC. Can you answer that, Mr. Green. A. I don't remember whether that question was asked before the PUC hearing or not. Mr. GRIEST: Q. In any event, you are satisfied you did not answer it in previous testimony? A. I would have to refresh my memory by reading the testimony. I do not remember whether that question was asked. There were numerous questions that day. Q. Did you ever tell Mr. Shillito the number of wires to be suspended from these towers? A. I personally did not talk to Mr. Shillito about the construction or the design aspects of this line. If he had asked me, I would have been very willing to give him whatever I knew. I was never requested to do so, Q. How many towers are you going to construct on Mr. Shillito's property? A. There will be three towers on the Shillito 273 acre tract. Q. How high? A. The end tower will be 126 feet high. Mr. RUSSELL: If the Court please, I would interpose an objection. I cannot see what possible impeachment this testimony would achieve. THE COURT: I agree with you very thoroughly, but on cross-examination he is going to try to impeach the witness and I am going to allow him to do so and to keep trying. ~' * t ~ i A. One tower will be 126 feet high. All of these dimensions are approximate. I do not have the exact plans with me. The angle tower will be approximately 95 feet high. The tower near the creek will be approximately 106 feet high. • i Q. Will these towers be erected in the center of the right-of-way as indicated on exhibit 3? A. Generally, they will be erected in the approximate center of the right-of-way but that is not necessary to the construction of the line. Q. Has your company constructed any towers on this 44 mile right-of-way which you have planned? A. To date there have been no towers erected. Q. How long does it take your company to do core boring? A. That will take approximately 2 days depending on what the soil conditions are. It could possibly be done in one day but lets say on the outside, 2 days. Q. But at the most the core boring would take you two days? A. I think that is a reasor_able estimate. Q. And how many days does it take you to get the core boring results after you have, in fact, done the core boring on the property? A. That might take one or two weeks. Q. So that the work which you must immediately accomplish on the Shillito land can be done within a period of one or two weeks when you have started? A. The engineering work could be done within 2 weeks. We have already been held up considerable as you know. Q. And what is the closest work to the Shillito land that you have done? A. The tree trimming is completed up and through the Williams Grove property. The tree trimming is completed from the Mechanicsburg road down toward the Shillito property. Q. And how about the foundations? A. The foundation work is within, I would say, three or four miles of the Shillito property. Q. You mean three or four miles from the northern terminus or three or four miles from Shillito? A. From Shillito. Q. Toward the north? A. Toward the South. Q. By that, then you mean, nothing has been done from the north terminus? A. You asked me whether they ire complete. There has been considerable work done in the distance between the last completed foundation and Sh.illito's property. Q. But not completed? Let me get this straight. Your testimony then is that the towers are completed from south to north up to four miles from the Shillito tract? A. May I correct the record. We are talking foundations. There are no towers completed. Q. Let me say again, it is the foundations, but they are completed from south to north within four mile-of :':;c Shillito property? r~ ~ * ~ ~ • ~ A . Yes . Q. That means the whole or southern portion? A. Yes. Q. What is the southern limit of your services on this line? A. To a point at Windsor Township line. Q. And from that line up to within four miles of Shillito your foundations are complete? A. They are complete. Q. Then from that point to your northern terminus they are not complete? A. They are in progress. There may be one or two isolated towers in that 44 mile section which for some reason has not been completed Q. but they are substantially completed to within four miles of Mr. Shillito's tract. Q. Now, I thought under direct testimony that this construction was from north to south? A. The tower erection and the stringing program is. Q. Then when you said you were constructing from north to south you were talking about towers and not foundations? A. That is correct. Q. So that your foundations are being constructed from south to north? A. Yes. Q. And why did you change it? A, We are not changing it. We changed the construction of the foundations largely because of the current problem. We would have much preferred to start at the Mechanicsburg-Carlisle road and proceed south. Q. But you didn't? A. We have already had to change that plan. But we cannot change the other construction because of material delivery. Concrete is a local problem that we could change our mind on and not cause too much destruction. Q. About how many tons of this material have you had delivered so far? A. I do not have the tonnage figures. Q. And has it been delivered to the south portion of the right-of-way? A. There has been no tower steel delivered for the southern section to date. Q. I understand that this tower steel was delivered. In fact you had one load of it? A. There is, but you said the southern section. The delivery is proceeding from the north. The towers required for the northerly section are coming in first. Q. And how long will it take you to place three foundations on the Shillito property? A. That is alI a part of the overall program. I cannot give you the exact time it takes to erect three particular foundations and towers. -43- ~ • r ' ~ + ~ ,w That's all, Your Honor. THE COURT: Do you have anything further? .~ Mr. FLOWER: May we just say for the record, Your Honor, we are not going back over any of these questions or answers because they were directed solely for the purpose of creditability, weren't they for that purpose? THE COURT: Well, I assure you that is the only purpose they were admitted for. Mr. EAKIN: Your Honor, I object because they are doing exactly it to us what we were not permitted to do and they opposed. THE COURT: No, he was addressing the Court, he was not questioning the witness. Mr. EAKIN: He was making an objection. THE COURT: No, he was addressing the Court. Mr. Green, you may step down. We will have a ten minute recess. (Court in recess at 10:20). COURT IN SESSION AT 10:30. Mr. RUSSELL: Your Honor, at this time I would move for the admission of Exhibits 1 through 3 into evidence. THE COURT: Mr. Griest, do you have any objection? Mr. GRIEST: Yes, Your Honor, with respect to Plaintiff's Exhibit 1, I call the Court's attention to Philadelphia Electric Company vs. Janney, 31 Delaware County Reports 412, which I suggest to the Court might indicate that the resolution is not adequate for failing to have the location of the towers and the cables and wires to be suspended therefrom incorporated into the resolution. As to Plaintiff's Exhibits 2 and 3, I challenge the accuracy of those since they were made up from aerial photographs and deed descriptions and cannot be considered as accurate up to 5 feet, or there could be a variance as much as 25 feet and they actually do not locate the right-of-way on the land. -44- ~~ ~ ~ ~ w i THE COURT: In respect to the admission of these three exhibits, I will expect briefs to be submitted to the Court on Monday morning. Mr. RUSSELL: If the Court please, we did not hear what was said regarding briefs. THE COURT: I will reserve my ruling until co.tnsel submits briefs on the admissability of these exhibits. Mr. RUSSELL: If the Court please, the plaintiff has in Court several witnesses with reference to the threats o~ "_-"'_;.f.s and damage to property, but in view of the proceedings, the plaintiff does not wish to submit that separate testimony at this time. Mr. EAKIN: At this time, Your Honor, I would move for the admission of our amend~:d complaint. THE, COURT: Mr. Russell, what is your position on this amendment? Mr. FLOWER: Well, we just received it, it was served just this morning before the hearing. THE COURT: Have you had an opportunity to go over it? Mr. FLOWER: Not thoroughly, THE COURT: Well, take some time now to go over it. You will probably want to amend, yq~. will want to file an answer to their new matter, I ass-~-~.~. I th~_nk to correct the record at this time you should file an answer to the new matter. Mr. RUSSELL: There is no notice to plead. THE COURT: Well, you are interested in a good record. Mr. RUSSELL: Then is it the Courts desire that we file an answer to the new matter by Monday. THE COURT: I will give you all the time you need. If you get an answer in to me by Wednesday of next week, that will be alright, I would suggest that you try to get it in as soon as possible, -45- ~ ~ ~. ~ ~ ~ ~ ~ • • ~ PLAINTIFF'S REST RUSSELL L. SHILLITO, Defendant, being duly sworn, was examined and testified as follows: By Mr. GRIEST: Q. State your name? A. Russe7.1 L. Shillito. Q. Your address? A. York Springs, Pennsylvania, R. D. 1. Q. Are you the owner of land in Monro~r Township, Cumberland County, Pennsylvania? A. Yes. Q. How many acres in each tract? Mr. RUSSELL: If the Court please, I believe this is already on the record. THE COURT: Mr. Griest, can you eliminate these things which are already a part of the record. Q. To what use are you putting your land? A. Farming and raising cattle. Q. What kind of cattle? A. Beef cattle. Q. How many head are, there now? Mr. RUSSELL: If the Court please, I must enter an objection as to this not being relevent to this proceeding. THE COURT: Well, he must have some purpose to question this witness regarding these beef cattle. We will have to allow it to go on on that basis. I will overrule the objection. Q. How many head are there? A. Over 200. Q. With reference to the 273 Acre tract, where are they pastured? A. Along the Yellow Breeches Creek, in two fields. Q. How do you contain them? A• With a barbed-wire fence. Q. In connection with your farming ventures, do you use any equipment? A . I didn' t understand the ques t__%.i)`-a . Q . In connection with your farmir3.`; ,,,`..;. ;j;.1_~e , do you use anyequipment in doing your farming? A. Yes. -46- i' ~ ~ • Q. What kind of equipment? A. Four farm tractors. All the necessary equipment it takes to farm around 1200 to 1500 acres. Q. Do you use this equipment at or near the proposed location of this right-of-way? A. Yes. Q. Are your cattle presently pastured at or near this proposed right- of-way? A. Yes. Q. Up until this point, have you ever been advised of the limits of this right-of-way? A. No. Q. Have you requested information on it? A. We never talked about the limits of it. Q . ~-~ave you asked for it? A. I asked the general direction of the line. Q. Is there a gate on your fence? A. Yes, on the 273 acre tract, there are two gates near the, at the end of the pasture. Q. And at or near the Yellow Breeches Creek, is there one there? A. There are two gates near the Yellow Breeches, yes. Q. How do you fasten those gates? A. With a chain around the gate with a lock on it. Q. Where do you feed these angus cattle on your land? A. About 20 feet from where I saw a stake with a yellow flag on it. Q. Did this flag or any equipment have any effect on these cattle? Mr. RUSSELL: May I ask this question is not clear. When you say equipment, such as what? Mr. GRIEST: Such as a drilling rig. Q. Does a core drilling rig have any effect on these cattle? A. Well, I am not sure whether it would or not. I do not know how the cattle would be kept in or anything. If they would be scared and would break through the wire fence I do not know what would become of them. I have my life's savings in them and if they were scared I have no idea how I would get them back. Q. Do you know the date of entry of Metropolitan Edison Company? A. No, I do not. Q. Was it the last of March of 1966, the last week in March? A. Yes. Q. Do you recall the location of that entry? Where they entered your land? A. They entered the land at the gate that leads off the macadam road. Q. Is that the gate near the Yellow Breeches Creek? A. It is at the Yellow Breeches. -47- * ~ s ~ * ~ ` . •- Q. And how was that gate secured? A. With a chain and a lock. Q. How did they get through the gate? A. They lifted the gate off and bent the lock. Q. And at that time the cattle were in the field? A. Yes. Q. Was that gate then open or closed after their entry on theland? A. After I told them to get off, they then closed the gate when they left. Q. When they were on the land was the gate closed? A. No, it was left open. Q. Were there cattle present at that time? A. Yes. Q. What has been your experience with angus steers when they are frightened? A. When I buy these cattle as young cattle they are put in the field at that time they. are hard to keep under control and at any time they could be scared by machinery or any other way, with noises and all the cattle I have, if they are scared, will run through that metal. Q. Do people who are not working with the cattle have any affect on them? A. Yes, cattle can tell strangers. Q. Have you been able to locate the right-of-way on your land based on the information you have been given? A. No, the only way I have any idea is by the few stakes with the flags on them. Q. If Metropolitan is permitted to enter your land pursuant to this injunction proceeding, where can you put this herd of cattle? A. I buy the cattle as young cattle, the entire farming procedure I have is with the cattle. Our entire livelihood is based on the cattle and I have no place to take the cattle. I was never told when I would have to do away with the cattle, what I would have to do. I have no idea. Q. Do you have any other place to contain these cattle if the utility is permitted to enter your land? Mr. RUSSELL: If the Court please, I am going to object. This entire line of testimony is directed to damages which may be occasioned by a conclusion and which are recorded in a generally established P procedure before in an eminent domain proceeding. THE COURT: I agree, but I am going to give them every opportunity to present their case. I am going to overrule your objection and allow him to go ahead. This is a matter subject to damages, you know that Mr. Griest, but you go ahead. -48- ~ a ;,- ~ ~ ~ Q. Did you permit Metropolitan Edison to enter your land for the purpose of survey work? A. Yes, for the purpose of survey work and I signed a paper. Q. And will you state to the Court the cost for this survey work? A. Yes. $500.00. Q. Have you taken this case to the proper courts to contest their right of entry? A. Yes, as far as I know. Q. You went through two days of hearings before the PUC and appealed this case to the Superior Court? Mr. RUSSELL: This is objected to. It is already on the record and it calls for a legal conclusion. THE COURT: I am going to overrule the objection and allow you to go ahead. CROSS-EyAMINE By Mr. RUSSELL: Q. Mr. Shillito, isn't it a fact that on several different occasions in the fall of 1964 you have personally received copies of the prints which are exhibits 2 and 3 in this proceeding? A. I do remember receiving some prints, whether they were the same or not, I do not know. When I got them I gave them to my lawyer. I never knew it would end up in a case like this. I gave them to my lawyer. Mr. RUSSELL: I move that the witness has not responded to the question. Mr. GRIEST: Your Honor, he hasn't identified any gapers. If you show them to him, it will support any answers he may give. Q. I show you Exhibit 2, have you ever seen that before? A. I do not know if that is the same one or not. All the papers I got I gave to my lawyer. Q. To the best of your recollection, did you receive a print exactly like those or substantially the same as this in connection with these proceedings between Metropolitan Edison Company and yourself before the PUC? A. I may have, I don't remember. I don't honestly remember. Q. And I show you Plaintiff's exhibit No. 3 do you recall ever having received a copy of that? A. I saw a picture like this, and if it was the same I gave it to my lawyer. I don't remember. Q. You don't remember? A. As far as I know I saw a picture like this. -49- ' ~' • ~ • * ~ Q. Now, March 29, 1966, when the Metropolitan Edison company crews went on your land, were there any cattle injured or damaged at that time? A. Injured or damaged, no Q. Did any of your cattle escape from any of your pasture lands? A. No. Q. Now, I think you testified that a gate was broken where the gate was secured? A. I had to put a new latch on it. Where the gate latched it was bent and I had to put a new one on it. Q. Then it was just the latch, not the gate? A. I don't think they broke the gate, no. Q. Was the gate put back on the hinges when they left? A. When they left, they put the gate back. That's all. Mr. GRIEST: Q. Mr. Shillito, with respect to the drafts, did you hire an engineer? A. Yes. Q. And did you bring him to the PUC hearings with you? A. Yes. Mr. RUSSELL: This is getting into hearsay. I object to any line of questioning of this nature. THE COURT: I will have to overrule your objection. Mr. Griest, go ahead. Q. Now, Mr. Shillito, did you ask him to try to determine where the right of way was on your property? A . Yes . Q. And do you now know where the right of way is? A. No, I still do not know where it is. Q. You testifiedthat cattle could be frightened by equipment and on cross-examination that the equipment was on your property on March 29, 1966? Did that equipment at any time harm your cattle. A. When I was to talk to the men, the equipment was not in operation. Whether it was before that I don't know. That is all. Mr. EAKIN: May it please the Court I raise a question as to whether we should rule on these questions as to the amended answers when they have already been admitted, but it is now to be proved on whether the -50- i+ whole matter has been admitted. THE COURT: It was admitted by you on the admissions at the last proceeding. All these matters were admitted. Mr. EAKIN: But now by permitting us to file an amended answer we have lost the whole pleading, everything. THE COURT: We could go on forever and ever if we allow you to do that. So far as any court, it will not have any effect. We rest, Your Honor. THE COURT: Any rebuttal? N,Ir. FLOWER: I see no point in rebuttal, Your Honor, as we take the attitude that the amended answer has not been proved. We have - THE COURT: You have no further evidence at this time? Mr. FLOWER: No. THE COURT: In regard to these two exhibits, in reviewing the testimony, these two documents were admitted at the last hearing. Mr. GRIEST: May I ask the Court one question, and correct me if I am wrong, they were admitted by reference only, weren't they? THE COURT: In :Paragraph 8, by reference, and Paragraph 8 was admitted into eviden~~e and these exhibits with it. Mr. GRIEST: Mary I also bring to the attention of the Court in the amended answer, Para~~raph 7 is admitted. THE COURT: Paregraph 7 and 8 were admitted so you have those exhibits in the pleadings as being admitted. Mr. RUSSELL: WEB so move, Your Honor. THE COURT: Mr. Driest, Paragraphs 7 and 8 then, do you have any objection to their admission? Mr. GRIEST: We=L1, Your Honor, I do not challenge the fact that they passed the resolution, I only - THE COURT: Then you object to its admission? Mr. GRIEST: Well, not exactly. THE COURT: Then you are withdrawing your objection? -51- S„ .~ ~ ~ ~ ~ ~ F • • ,~ Well, Exhibits 1, 2 and 3 are admitted under the pleadings and in answer to his objection to have them admitted as Exhibits, I will sustain his objection because they are already in evidence. You don't need to write a brief on it. Mr. FLOWER: You are sustaining - THE COURT: He is objecting to their being admitted as Exhibits but they are already in evidence under the pleadings by his admissions. Now, are we clear? We will close the testimony on the case. I would like to confer with counsel in Chambers. HEARING CLOSED COURT ADJOURNED TESTIMONY CLOSED -52- ~ ~ , i METROPOLITAN EDISON COMPANY, Plaintiff . VS. RUSSELL L. SHILLITO and RUSSELL F. GRIEST, ESQ., Defendants . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0. 1 MARCH TERM, 1966 IN EQUITY Before Honorable CLINTON R. WEIDNER, JUDGE, Carlisle, Pennsylvania, in Court Room No. 2, on Wednesday, April 6, 1966 and Saturday, April 9, 1966 I hereby certify that the proceedings and orders of the Court in the above matter are contained fully and accurately in the notes taken by me on the said matter and that this copy is a correct transcript thereof. May ~° `~ 1966 ,,~~ ~~.. ~y' ,~= ~. ~..lJ_' ~ ~ e-.c...~E-' : ?' a~ f ~ , ;,~ ~.•~~r./~ Official Repot er The foregoing record of the proceedings in the case above is hereby approved and directed to be filed. May ~~~ 19 ~ 6 ~ j ,- ,___ `Ju ge -53- ~ • ~ + . ~ •~ . • ~- _ . `' , _~ _. ._, ., ~-- . ~ ` ' ~ WHEREAS, this Company is under the necessity of acquiring rights of way across, under and through certain tracts or parcels of land located in tionroe Township, Cumberland County, Pennsylvania, for the purpose of locating, constructing, operating and maintaining thereon a 500 KV electric transmission line and, despite diligent efforts on its part, has not been able to acquire such rights of way by agreement with the owners or reputed owners of said property: NOW, THEREFORE, BE IT RESOLVED that this Company, under its corporate powers, subject to securing the necessary certificat of public convenience from the Pennsylvania Public Utility Commis- sion, enter upon, take and appropriate a right of way .f or the purpose of construction, operation and maintenance of a 500 KV electric transmission line with the necessary towers, insulators, fixtures, wires, ground wires, overhead and underground lightning protective wires and other apparatus and equipment for the said transmission line, across, under and through the hereinafter specified tracts of land owned, and situated in the Commonwealth of Pennsylvania, as follows: IMATE OWNERS OR REPUTED OWNERS APPROX PROPERTY PROPERTY PLAN N0. ACREAGE Russell L. Shillito B-2944-R 101.51 Russell L. Shillito B-2945-R 273.14 said right of way in the case of each of the aforesaid properties being of the width of 200 feet, i.e., 100 feet on either side of the center line (or the projection thereof) crossing such prop- erty, said center line being located as set forth on the aforesaid numbered plan of such property on which also appears the bound- aries thereof, a copy of each such plan with respect to each such property having been presented to this meeting and directed to be filed with the records of this Company and being incorporated herein by reference; TOGETHER with the right to trim, cut and remove by such methods as this Company may determine such trees and undergrowth within the limits of the right of way across each of the aforesaid properties as may be necessary to construct, operate and maintain the said line, to keep the said line free from interference and to protect the same from falling timber; provided, however, that nothing herein contained shall be construed as interfering with the right of the respective property owners and their successors in title to cultivate the ground within the limits of the right of way or to use the same for any other purpose, except the construc- tion of a building or buildings thereon, provided that such use does not interfere with the construction and maintenance of the said line. FURTHER RESOLVED, that the proper officers of this Company be and they hereby are authorized and directed to make applications to the Pennsylvania Public Utility Commission for the necessary certificates of public convenience referred to in the preceding resolution; to execute and deliver in the name and under the corporate seal of this Company such bond or bonds as may be necessary to secure the owners for damages or compensation for the rights of way taken and appropriated; to make payment for said rights of way; and to do any and all other things necessary or proper to carry out the intent and purpose of the foregoing resolution. r ~ ~,~ ~ ® N ~' f ~- ,- ~ ~ ~. WHEREAS, this Company is under the necessity of acquiring rights of way across, under and through certain tracts or parcels of land located in I7onroe Township, Cumberland County, Pennsylvania, for the purpose of locating, constructing, operating and maintaining thereon a S00 KV electric transmission line and, despite diligent efforts on its part, has not been able to acquire such rights of way by agreement with the owners or reputed owners of said property: NOW, THEP.EFORE, BE IT RESOLVED that this Company, under its corporate powers, subject to securing the necessary certificat of public convenience from the Pennsylvania Public Utility Commis- sion, enter upon, take and appropriate a right of way .f or the purpose of construction, operation and maintenance of a 500 KV electric transmission line with the necessary towers, insulators, fixtures, wires, ground wires, overhead and underground lightning protective wires and other apparatus and equipment for the said transmission line, across, under and through the hereinafter specified tracts of land owned, and situated in the Commonwealth of Pennsylvania, as follows: APPROXIMATE OWNERS OR REPUTED OWNERS Russell L. Shillito Russell L. Shillito PROPERTY PROPERTY PLAN N0. ACREAGE _- B-2944-R 101.51 B-2945-R 273.14 said right of way in the case of each of the aforesaid properties being of the width of 200 feet, i.e., 100 feet on either side of the center line (or the projection thereof) crossing such prop- erty, said center line being located as set forth on the aforesaid numbered plan of such property on which also appears the bound- aries thereof, a copy of each such plan with respect to each such property having been presented to this meeting and directed to be filed with the records of this Company and being incorporated herein by reference; TOGETHER with the right to trim, cut and remove by such methods as this Comnany may determine such trees and undergrowth within the limits of the right of way across each of the aforesaid properties as may be necessary to construct, operate and maintain the said line, to keep the said line free from interference and to protect the same from falling timber; provided, however, that nothing herein contained shall be construed as interfering with the right of the respective property owners and their successors in title to cultivate the ground within the limits of the right of way or to use the same for any other purpose, except the construc- tion of a building or buildings thereon, provided that such use does not interfere with the construction and maintenance of the said line. FURTHER RESOLVED, that the proper officers of this Company be and they hereby are authorized and directed to make applications to the Pennsylvania Public Utility Commission for the necessary certificates of public convenience referred to in the preceding resolution; to execute and deliver in the name and under the corporate seal of this Company such bond or bonds as may be necessary to secure the owners for damages or compensation for the rights of way taken and appropriated; to make payment for said rights of way; and to do any and all other things necessary or proper to carry out the intent and purpose of the foregoing resolution. ~ PLAINTI!!'S ^XHfeIT a a , ~ rw. • ~ - , ~•. METROPOLITAN EDISON COMPANY, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. , • SITTING IN EQUITY RUSSELL L. SHILLITO and , RUSSELL F. GRIEST, ESQ., • Defendants No, ~ Term, 1966 Sl,~/LL/TD s DEFENDANT'S BRIEF H I S T O R Y Plaintiff, Metropolitan Edison Company, filed its applicat with the Pennsylvania Public Utility Commission to No, 91664 seeking a certificate of public convenience and necessity to construct a 500,000 volt electrical power transmission line over lands of Russell L. Shillito, Defendant, in Monroe, Town- ship, Cumberland County, Pennsylvania. The matter was tried before the Pennsylvania Public Utility Commission Monday, January 4, 1965 and January 25, 1965, by taking testimony before a hearing examiner, Defendant Shillito requested oral argument and filed his brief and attended oral argument before the Com- mission March 3, 1965. On January 17, 1966, the Pennsylvania Public Utility Commission handed down its order awarding the plaintiff its certificate for which defendant Shillito appealed to the Superior Court of Pennsylvania to No. 4 March Term,l967. The Pennsylvania Public Utility Commission on February 9, 1966 filed its answer wherein it stated among other things, "The order here appealed does not authorize such entry.", with respect to defendant Shillito`s land. On February 1, 1966, plaintiff filed its condemnation bond uRIEST ~C WILEY ATTORNEYS AT LAW 12B EAST KING STREET YORK, YA. 17403 with the Court of Common Pleas of Cumberland County to which defendant Shillito filed his petition and rule to strike the bond. Testimony was taken after the Answer filed by the plaintif - 1 - t > • w x • to the petition on March 31, 1966, and the matter is scheduled for argument before the Court of Common Pleas setting en banc in Cumberland County, Pennsylvania, April 19, 1966. I S S U E S 1. Does plaintiff have a right of entry prior to deter- urination of the appeal before the Superior Court to No. 4 March Term, 1967?' 2. Does the plaintiff have a right of entry prior to the determination of the Court of Common Pleas of Cumberland County, Pennsylvania, of the actions pending to No. 776 and No. 777 February Term, 1966?' 3. Has the plaintiff violated the due process clause of the constitution and unreasonably disregarded the rights of the defendant ShillitoT 4. Has the plaintiff by its proof established immediate irreparable injury to permit entry by plaintiff prior to April 19, 1966' 5. Defendant`s right to an injunction prohibiting plaintiff entry? 6. The amount of defendant`s damage? A R G U M E N T From the past investigation made in the brief time allowed ~iRIEST c~C tiVILEY ATTORNEYS AT LAW 12H EAST ICING STREET YORI{, PA. 17403 prior to hearing this matter there is no Pennsylvania case directly in issue containing the factors as presented to the Court in this case where an appeal challenging the certificate of Public Convenience and Necessity has been taken to the Superior Court and during its pendency the utility has attempted - n - • GRIEST ~C ~VILEY ATTORNEYS AT LAW 128 EAST KING STREET YORK, PA. 17403 } a a • entry of the land. It is submitted that the Pennsylvania Public Utility Commission by its answer filed in the Superior Court has indicated that the right of entry is a question for deter- urination by the local forum of the I and. This right of entry is directly attacked to No. 776 and No. 777 February Term, 1966 regarding the validity of the condemnor`s bond. Those actions are before the Court on petitions, answers filed and testimony taken, for argument April 19, 1966. It is submitted that since this Court is the one to determine the right of entry any decree in the injunction case by a Judge of the court might usurp the function of the court en Banc in the argument on the bond proceedings. In Philadelphia Electric Co, vs. Janney, 31 Delaware County Reports, Page 412, property owner filed answers objecting to the approval of the bond filed by the utility. The appropriation by the utility in this case was a right of way within the limits of a~ublic highway to lay an underground conduit for a 66,000 volt electric transmission line. The Court held: "Moreover, the citation from Lewis on Eminent Domain, to the effect that where a telegraph line is being located in a street the condemning company must show the location, height and size of the poles, etc. is clearly the law of this case and Kerry v West Penn Power Co., above referred to, does not hold to the contrary. There the property owner had objected to the fact that the plan attached to the resolution of condemnation did not disclose the number of poles, cross-pieces, wires, etc., which were to be placed along the right-of-way, and the court expressly held that such details were not to be required, but that case was not an underground case and is therefore not an analogy. There can be no doubt in the instant case that the directors of the company should be under the compulsion of setting forth in their resolution those precise engineering details of whose absence the re- spondents complain. Railroads do and we see no reason - 3 - M ~ ~ Y • y why it should not be done here - to set forth all the dimensions, quantity of land and depth, and width of the excavation in the highway, and its location. The public interest requires this. See Darlington v U. S., 82 Pa. 382, Lewis on Eminent Domain (3rd Ed.) Sec. 552, page 985." In West Penn Power Com any vs Pennsylvania Public Utility Commission, 199 Pa. Super 25; 184 Atlantic 2d 143, the West Penn Power Company applied to the Commission for approval of the exercise of the right of eminent domain over a Simmons property. Testimony was taken, oral argument heard and the Commission denies the application, from which the company appealed. This case only involved a permanent right of way 100 feet in width over an ex- tensively irrigated farm in Peters Township, Washington County, Pennsylvania. The testimony indicated that the adjacent land for the right of way had not been cultivated. The Commission concluded that the right of way involved a hazard to the public and the location of it constituted an unreasonable disregard of the property owner`s rights under the law. The Act of Ma.y 21, 1921, P.L. 1057; 15 P.S. 1182, in part provides as follows: rr,.,or a dwelling-house or the reasonable cartilage, not to be less than three hundred fee, appurtenant thereto, shall not be appropriated by virtue of the power conferred by this subsection:..." In William Hale Church, Appellant vs Pennsylvania Public Utility Commission, 183 Pa. Super 371; 132 A2d, 894, the Com- mission entered an order approving the exercise of the right of eminent domain and the appeal was taken. The question of "or the reasonable cartilage, not to be less than three hundred feet, appurtenant thereto", was raised by the appellant. The Commission determined from the evidence that the nearest GRIEST SC WILEY ATTORNEYS AT LAW 128 EAST KING STREET YORK, PA. 17403 edge of the proposed right of way was 263 feet from the nearest - 4 - ~ Y of several dwellings on the Charch tract. However, between the dwelling and the proposed right of way, there was a public road 33 feet wide, and a right of way of the Wilmington and Northern Railroad, 60 feet wide. The right of way was to be located 150 feet wide between the railroad and a creek known as Brandywine Creek. Both the public road the railroad run generally parallel to each other and to the proposed right of way. The Superior Court said: "It does not appear in the present record that the land beyond the public road and the railroad is in any way necessary to the dwelling. On the contrary, the evidence indicates that all of the outbuildings necessary to the dwelling are located on the same side of the public road as the dwelling. No buildings are located on the tract to be acquired for the right of way. The land to be appropriated for the right of way is meadow land, and it is severed from the dwelling or curtilage appurtenant thereto by the public road and the railroad. It is obviously a separate parcel of land, physicall dis- connected from the dwelling and in fact unnecessary for the use and en~o ent thereof; it is not legally or .factually appurtenant to the dwelling.rE The Court went on to say: `rIn all cases, whether the curtilage is the minimum of three hundred feet of greater, it must be ap- purtenant to the dwelling, either as a contiguaus~tract or as a separate additional tract which is shown by the facts to be necessary for the use and enjoyment of the dwelling. By thus giving effect to all the words of the statutory provision, we think its scope and meaning become clear." In Bland v. Tipton Water Co, et al, 71 A, 101, the court held: "At the time this bill was filed - February 14, 1906 - a bond had not been approved by the court to secure to the appellant the payment of his damages, and the court found as a fact that no effort had been made to agree upon the amount of compensation to be allowed him for the taking and appropriation of the waters of the run. In view of this, he contends that the preliminary in- junction should have been made perpetual. Though no bond had been approved at the time these proceedings ~zziEST & ~VILEY were instituted, one had been tendered to the appellant ATTORNEYS AT LAW 12b EAST KING STREET YORK, pA. 17403 - 5 - • # • ~ A • ti in December, 1904, and, upon his refusal to accept it, notice was given to him that it would be presented to the court of common pleas of the county for approval on the 24th of that month, In pursuance of this notice, a bond was filed on that day, but was m t approved be- cause excepted to by the appellant, Subsequently, on May 16, 1906, another bond in a larger amount, was substituted and approved by the court. As no bond had been approved at the time the appellant applied for the injunction, the restraining writ was properly issued and ought to have been continued until the water compan secured to him the pa ent of his damages in the mode prescribed in Section 41 of the act of April 29, 1874. This is did when its bond was approved by the court in May, 1906, and the injunction which, up to that time, had properly restrained all interference with the ap- pellant`s rights, ought then to have been dissolved. In the decree dissolving it and dismissing the bill the proper penalty for the attempt of the water company to take the waters of the run before legally authorized to do so was imposed upon it be directing it to pay the costs in the proceedings below,`° (underlining ours) By analogy, the Eminent Domain Act of Special Sessions held June 22, 1964, P, L, -~~6, Article 4, Section 406; 26 P. S. 1-406 Domain by Shillito in the above captioned case. Under the Eminent/Code a Court can determine the Preliminary Objections filed after the taking of depositions or testimony and revest title in the condemnee as equity and justice shall require, The owner of property should have no lesser rights under the Act of April 29, 1874, P, L. 73, Section 41, amended May 5, 1911, P. L, 1112, Section 1; 15 P,S. 482, for challenging the validity of an electrical company`s bond and right to enter, provides a remedy for the condemnee similar to the action taken In P,L,E.I8~ ~ 103, at page 383: DRIEST ~C `YILEY ATTORNEYS AT LAW 12B EAST KING STREET PORK, PA. 17403 rrA preliminary injunction is never granted except where the plaintiff`s right is clear and an injury is threat- ened, and where the plaintiff has used reasonable dil- igence in invoking the aid of the court, The Supreme Court has recently stated: `Since a preliminary in- junction is somewhat like a judgment and execution before trial, it will only issue where there is an urgent neces- sity to avoid injury which cannot be compensated for by damages, and should never be awarded except when the rights - 6 - • J II r ~ j . ~ w * • of the plaintiff are clear.` Also, it should in no event ever be issued unless greater injury will be done by refusing it than in granting it." In Huckenstines Appeal, 70 Pa. 102 (1871) the court says: crA court exercises the power of a chancellor, whose arm may fall with crushing force upon the eaery-day business of men, destroying lawful means of support, and direrting property from legitimate uses, cannot approach such cases as this (a brick-makin with too much caution, its aid is not of rightlabut of grace, and it must be sure that the exercise of tizis kingly power is just and proper, before it takes from a citizen his means of livelihood and destroys the value of his property for legitimate uses,rc The testimony in this case does not indicate any immediate or irreparable damage to the plaintiff if they are denied entry pending determination of the bond case before this court since they have not shown construction of this line at or near de- fendant`s property or on either side thereof. The right of a property owner should be jealously safe- guarded by the court since the action of this court will be the i pole star for land owners throughout the Commonwealth prescribing land owners` rights against a utility during pending litigation especially when this utility proposes to erect a power line of such immense proportion that its likes have not been seen. All of which is respectfully submitted, GRIE ~ & .- LEY 77 ,. f, ~ f BY ` Russell r est) (John M. Eakin) Attor~.eys for Defendant, Russell L. Shillito tIEST SC ~VILEY ATTORNEYS AT LAW B EAST KING STREET YORK, PA. 17403 - 7 - ~ + ~ ~ ~ ,~ • ` _ a ~ l ~ ' ~ ~ - ,..;~I_y,.~r _, -. ~ r- ~ _. ~ 'y ... _~ 1, .:~e _~t;~eric. .:e~;r,-~ t.~, .~. _~::^i<~r c,~ ;~,_ ..-e~ 'e:.r~.~ar~ ;v `~ , i..t - , .'ef 1: . ±C ~,ra,t <. S erne ~?~5 .^: ~;:..> F?. :..ere` ~r~~, :~::,. :' F ~,.~ , ~ ~~~~=_.~.,r ~ , .. .. -. ~ .. .. _ ~ 4i ~.- * .. .~ P • ~ '' ' ;i ..,. .~'~ ,gip ..'' ,~. ;.-'-- ~ .. . ~r-~ _~ . _ ~~r. ~ .-E .~,~ rs~~, ,«-. ~,~; _ ,, .-~ ~ ~ - , _ _ . ~ f .... .._ . _ .,. . , . _ ... ~ . .. '."'. '1 y . ~.. ~_. ~ r .-. .- P _, r~ .~. . . -• ., <" , ~ I, _ .. _.,r a ,.: .. :'Yer: ~ ~ ± ~ ,. , . ,• _ , - . r ~_ . ..._ ~~. _. _ -~e;, ic y. i:._` ~~, _ , _ .. - , . :ld~, __~e:_i.`i. _a:_ .,os~• r:_,`er t ~ - ~ -- - _ ~~ '4 . _~*Pc. .. .. r .,,~_: :.. t,, ._.~, .L: i ~ .. * ... ,... .. .enec. ~~c~ur .:c c~~.:~;F~ -- .~ - ,. . •. 'S , '~ti L 'n •- r ' ti ' 1 V .~~. ~ 3 ' - - ~ - - _ it . .. .. ~, . . _, -._._.~-_~.,......__. l .. . V . - ~ ~ ~ . . .. ~ ,a. C. .'. ~ ~ .. ~ - ~ '. ~. t'dt L :' _ .F' S . r • ; 3,. . ,. . , - .. ~ - .- ... ~ rl :~=r inter, . ~, .*e• _ .. _ .. ~ .~ ~, . rye ~ t n - N ~_~•,• ~ ' ~ ~ ~ .'~~ fires ~ .er,* z.. ~- . ~ x::e~t~c,ris r~..F, _r~ t`3F~ st<,tate . ~ . ,_ ., . ' ~_. e .. i : F~ .. . 'n;, ,,erc,~;Ar - P<<. - an=r, . , ~3en ~_ass:e~> _~ t~=~ ~ i . ~ - , @~- r r f 3. ,. .l j .,~~, f ~ ~.. .: r3 ~n~}~.~~> ~.]. F~ ~! '^~n .i ~ ' ~ ' / ~ . ~~p _ , • ii v c, ~ ; ~ ~ ~; ~ ; y • - •~ _ amount anc: *lre suretie a_•e s,,,~ `ic • i , of the court to ap rove ' en' . ~'s t,''te iu -1• filed f P t~`~e Mond a-~~~ 3,,,~ or the benefit ~f ~ ' t t ~ :>Er t }'l C•S 1 n t %-' rP <i f P _ ~ ' .. ., is n Therefore, it is perfectiv anp~irenr t!:<3t ,: f , aet:itions to strike off the sub~ec* conde!nnatinn .t•. :, r. ~; c ~~av relate to the issues before ;~ t' e curt ~='~cr, :,_ . . :'~: cr' ci.s- 3;-prrval of condemnation i-on:is. Therefore, !'lain tiff • 's i;~me~_'iate r,~-},t .. E,...F>r •1:;cn tha S:7 Li.~F-'C' rl~F?tS Of '.Ic7V re"la1nS i1rI1.T,~a1"E'.. I 'J r3n',,- - ~ r~:~~,,~ ;_ _ ~ ._n' ;resent ly er,,:in~; ;A n p r fc, e your Hor,ora:~le '. '-err, .~ ~.. ,~ee.l for ;n~:lnc`ive .~..-eE Plainti f f' ~; nee f cr i n ~ unc±; .,~ ' .. ..^eii.eP .~ .~._ ~whe n;ir.~ . Plaintiff has a present 1 va i c' le~;,~ l ri t•', _ :,~v t;~e -'it';is of way it has con~jemned~ ` lie Pendants Nave interfere :, i tai tt;ai ,; E-;, ~ , ,,,.~,~ ~.:s~... i'iairitiff pecuniary Loss an c: :lave r• -•~> ,.E, " . ±',r.~<;tf,,,, , ~(" 1 .c y~.t :edttil Or phyjlCal 1!3]Ur"! u;),)r~ f `> ~ ' .,E_.. Ii.ai:; 1_i f anc: its coat ~a c: ~.cr an, ~ . ~~.nti: i anc; its contractors. -- _ ''r : ~s 4 he nee% f-~r ir.~ > e:~cu~,h i f th _ in;urv an.. + - ,.~ .. r3iiil aJ4'ts t: _ .. , _ , :at <~' ., . ~~ _ ten? .1 Ed ,, ~ti,;, ReE'.,1 ~ , . Cyr 1: 'ln,_ * ` ~.•.~ "; r.- rF. ,_ Ct~;@1R `;,,.n d~ In Ur r ~ F".t~ s ~t _~:'. ~ ,.. ~ , ' `~ '' '~' - - , -t'e.: un .Err '.;e ~, ,;,~~~ '' 3: t~ .-~ ~ - .. . ,, :.. ~ . • l .. e~ 1 p ., ~~ ~ ., • ~ ~ • 1. M METROPOLITAN EDISON IN THE COURT OF COMMON PLEAS OF COMPANY, Plaintiff . . CUMBERLAND COUNTY, PENNSYLVANIA VS : N0. TERM, 1966 RUSSELL L. SHILLITO and SITTING IN EQUITY RUSSELL F. GRIEST, ESQ. . Defendants BRIEF ON BEHALF OF DEFENDANT GRIEST FACTS OF THE CASE The facts of the case are set forth in the Brief filed on behalf of Defendant Shillito. Additional facts set forth chronologically appear in the argument hereinafter set forth. ISSUES 1. Is an attorney justified in advising his client to resist entry upon client's land by a condemnor when the right to condemn is pending before the Court? 2. Is this a proper case for preliminary injunction? I. A man's house is still castle until he elects to part condemned. Metropolitan Edison castle by way of condemnation. From the outset the battle want the power line on his farm his with ele was and -1- castle and it remains his it, or dies or has it ~ted to invade Mr. Shillito's joined. Shillito didnrt resorted to his attorney • • 4 ~ # . A ~ • for assistance. The first battleground was the Public Utility Commission wherein Shillito alleged the proposed condemnation was defective because (a) the right of way is 2~0 feet from a building included in the curtilege appurtenant to a dwelling on the farm (15 P. S. 112), (b) the line was a hazard to him, his tenants, his livestock and the public as it was located and should be barred, and (c) the condemnor does not know what the power line will consist of and cannot now advise the land- owner of the servitude to be imposed on the land. All these defenses are supported by cases set forth in the brief of Shillito. On January 1'7, 1966, the Public Utility Commission awarded the condemnor the requisite certificate of public convenience. Round two of the battle commenced with the appeal by Shillito to the Superior Court of the Public Utility Commission ruling. It was made more intense when a petition for supercedeas was filed by Shillito and answered by the Public Utility Com- mission which contested the grant of a supercedeas on the theory that all the Public Utility Commission proceedings decided was whether the condemnor was authorized to proceed with a condem- nation. Right of entry was not decided in the proceedings appealed from and therefore the supercedeas could not temporarily° halt what the prior proceedings had never granted. Church vs P . U . C . , 1~3 Pa Super 3'71. In Reed vs P . U . C . , 1'7L~. Pa Super 132, the Court said, '...the grant of such certificate by the Commission does not determine the right of an applicant to condemn the lands it desires to appropriate or the validity of the subsequent proceedings by eminent domain." The third phase of the battle commenced with Metropolitan -2- • ~ ~ • ~ ! • tendering to Shillito the bond to guarantee payment of damages on January 26, 1966. On advise of counsel, the bond was re- fused as acceptance of the bond would constitute permission to enter. Late in the evening of January 27th a notice was delivered to Shillito but no notice was given to Driest. By the time Shillito went to York the next day or the day following, located Driest and delivered the notice, insufficient time re- mained to arrange for local counsel and appear to contest the action. When local counsel was contacted and directed to appear to contest the matter, the bond was already filed. At the next Miscellaneous Court a petition for a Rule to Show Cause was presented by Shillito raising the objections to the bond which would have been presented at the time of Metropolitan's petition had Driest received adequate notice of the proceedings. Depositions have been taken and the case is scheduled for argument April 19th. Recitation of these facts are necessary for an understanding of the atmosphere in which subsequent events took place. For over a year there was growing antagonism between the parties. Shillito resented loss of his land and the presence of an un- known c~antity being forced upon him. Metropolitan resented a landowner who stood up for his rights and insisted on taking advantage of every safeguard which the statutes gave him. Able and vocal counsel on both sides became emotionally involved in their clients problems and the stage was set for the next skirmish. At a meeting between the parties and their counsel held March 16, 1966 to explore settlement, Metropolitan advised -3- • ~ ' • } ~ • Shillito that the land would be entered. Driest advised that entry would be forcibly resisted. No specific threats are alleged to have been made at that time by Driest. In spite of (a) express notice that entry would be forcibly resisted, (b) knowledge that Shillito and Driest meant what they said, and (c) knowledge that Driest and Shillito were incensed by the high handed manner in which Metropolitan handled the petition to submit the condemnation bond without adequate notice, Metropolitan decided to force the issue instead of re- sorting to the Court for relief. It came to a head March 2~th, almost two weeks later, when a Metropolitan employee came to Shillito's Dillsburg Office to advise that forcible entry would be attempted the next day. Shillito called Driest in York and asked him to talk to the Metropolitan man. It was during this conversation the alleged threat to kill occurred. At no time did Driest advise his client to exert physical force against the person of anyone. In spite of all the warnings, Metropolitan again decided to bulldoze the landowner who stood in their way. They removed a gate which Shillito believes was not even on the right of way and which restrained over 150 beef cattle in the field, entered the land and then expressed great surprise and indignation that Shillito threatened to shoot the equipment. It is against this background that we are in Court on a hearing for preliminary injunction. The prayer for relief is an omnibus request which seeks to merge into one hearing the substantive matter contained in the pending appeal to the Superior Court, the validity of the condemnation bond now -~- k • R • t ~ • pending before the Cumberland County Court and the emotional clash between personalities on both sides. In the first place, Driest and Shillito agree that threats to kill or inflict bodily harm have no place in this case. They aver no instructions to do so were ever given by Driest to Shillito. They do not attempt to justify physical violence against any person and now that the matter is before the Court, they assure all parties and your Honorable Court that none will occur. A preliminary injunction is unnecessary to restrain Driest and Shillito from doing an act they have no intention of doing regardless of the provocation. If the Court feels such an injunction will add anything to the situation there is no objection to an injunction limited to preventing physical violence against any person. It is admitted that Shillito would have removed the equip- ment of Metropolitan by force such as pulling it off with a tractor. It is submitted that a landowner has the right to do so as against a trespasser. Until Metropolitan has the sanction of a Court of competent jurisdiction authorizing entry of the land, it is no better than a trespasser. The real issue at bar at this hearing is whether Metro- politan has proved the requisite immediate irreparable damage that justifies a preliminary injunction. It is submitted that the right to condemn is not yet final. Substantial questions remain for determination by the Superior Court. The statutory prohibition against condemnation within 300 feet of the dwelling or the reasonable curtelege appurtenant thereto may be decided by the appeal. Church vs P. U. C., supra. The unique features of this line are important. Before -5- • ~ ~ ~ • } f • the P. U. C., Metropolitan engineers testified there is no line in this area transmitting 500,000 volts. The danger to the buildings, animals and persons working about the buildings is immeasurably greater than the usual situation where a telephone line or a low voltage line crosses the land. It is quite possible the Superior Court will apply the minimum distance requirement strictly in this case. In that event there will be nothing to authorize exercise of the right of eminent domain and we will be dealing with trespassers. Metropolitan would have this matter determined by this preliminary injunction proceedings. It is no answer to say Shillito may sue in damages for a trespass. The equities will shift in favor of Metropolitan should it be permitted to build the line pending determination of the litigation. At argument the enormous expenditures which have been made will be used to influence the Court to permit the line to stand. The great monetary loss which Metropolitan will suffer may well deter the Court from reversing the P. U. C. Once the line is built we will never prevail in the appeal. It is therefore submitted that granting the preliminary injunction as requested will be distinctly prejucicial to our rights in other matters before other Courts. A preliminary injunction will not be granted except in clear cases where immediate and irreprable damage is threatened and not then when more harm than good will result from it. In Bigler vs Penna. Canal Co., 1'7'7 Pa. 2~, a condemnor argued the relocation of a canal was a matter for its Board of Directors and not for the Court. In rejecting this proposition, the Court said, (Page 36) -6- * ~ • ` y • "it is a settled rule that courts of equity hesitate to and generally will not interfere with acts involving in their performance scientific and professional judgment; it is just as well settled, however, that they will interfere if a discretionary act involving scientific skill is arbitrary or unnecessarily exercised to the injury of the property of another." The landowner in the Bigler case was denied an injunction to prohibit building the canal because he permitted con- struction during litigation. The Court said (Page 36) 11When a case is doubtful on its facts, or the injured party has, in some particulars, con- doned the wrong, or has not been very vigilant in asserting his right... the balance of injury principle may be invoked to stay the hand of the chancellor.rr in the case at bar we respectfully submit the preliminary injunction permitting entry at this time will, in the future, react to our detriment in the other litigation. We don't want the power line on the land, we have a legal right to have it placed at a location over 300 feet from the curtilege and we want no million dollar line in place when the Superior Court ultimately decides the issue now before it on appeal. It is submitted Metropolitan has not proved construction of the line on adjacent tracts and thus there is lacking the element of immediate urgency. We are not a single landowner -7- f ~ , • ~ ~ with wires running to our borders just waiting to be connected. To the best of our knowledge,the towers have not been designed, the location has not been established, the number of towers is not even known. All these items would be known if Shillito was presenting an urgent problem. Another reason for denying the injunction is the fact that Metropolitan's cond~t precipitated any emergency in which it finds itself. The matter of the bond should have been presented to the Court after due motice to Shillito and to his attorney. Oak Grove W. Co. vs Thompson, 235 Pa ~.$6. In this case the Court set forth the procedure to be followed when a landowner refuses to accept a condemnor's bond. At page 1,.91, in enumerating these requirements, the Court said, T1(5).., that written notice was given to him of the time when the same would be presented for filing in the Court for approval." Notice given to the client and no notice to his attorney who the condemnor knew would resist the petition is unjustified and a situation which the Court should not condone. Two weeks elapsed from the time Metropolitan knew the entry would be resisted until it forced the issue. This time delay shows a lack of immediate impending injury. Metropolitan has never had viewers appointed; it delayed from February lli., 1966 (the date the supercedeas was denied) to ask for an in- junction but elected instead to use means which created an explosive, emotional situation which baited Shillito and Griest. Metropolitan now throws up its corporate hands in horror and points an accusing finger at Grit as the villain. It is sub- mitted that any attorney worthy of the name would resist the corporate bulldozer and the only difference would be in the --~- 4 ~ ~ ~ x type of resistance offered. We have met the enemy in Court in every action it has instituted. We believe our case rests on firm legal principle and that we will ultimately prevail. We are not to b-a criticized for meeting the enemyrs extra- legal tactics by self help, subject only to the reasonableness of the self-help. He who asks for equitable relief must not be a contributor to the situation in which he finds himself. The threatened immediate injury does not exist because Metropolitan says it exists. Relevant proof would be the status of the construction of the line from one end to the other, the location, size, etc. of the towers on ShillitoTs land,(so the injury inflicted upon Shillito is before the Court)and the characteristics of the line and its dangerous propensities. It must also appear that the harm is irreparable, or in other words that money will not compensate Metropolitan. l~ P. L. E., 103. There are well recognized grounds for denying the in- junction. These are summarized and the cases cited in support thereof in l~ P. L. E. lOti.. In all these cases, the theme is an inherent reluctance by the Court to deprive a man of his property in all but the clearest cases and only then when a delay will caused~nages other than monetary damage. It is submitted that (1) the right to a certificate of pubic con- venience which is essential to the condemnor's right to take Shillito's land is in doubt because of the Superior Court Appeal, (2) the semi-clandestine manner of having the bond approved in Cumberland County, and the pending litigation thereon raises substantial doubts as to the validity of the right to condemn, (3) there is an unresolved question as to -9- • µ x details of the construction which makes the burden on Shillito uncertain, and (4) there are more reasons why an entry should be enjoined than reasons why it should be granted. Any one of these reasons should be enough to deny the preliminary in- junction. Schwab vs Pottstown, L~.07 Pa. 531. In conclusion, it is respectfully submitted that equity has continuing jurisdiction which will not preclude further application for relief if the situation merits it but for the present the defendant's position is as follows: 1• No physical violence will be inflicted on any workmen of the condemnor. 2. No advise will be given by Griest to his client to take any action not in pursuance with the orders of your Honorable Court. 3. Metropolitan has not established an immediate, irrep- arable injury to justify the grant of a preliminary injunction. 4-. Shillito will be distincly prejudiced in pending litigation if the line may be built before the litiaation is terminated. 5. Metropolitan is endeavoring to do by preliminary in- junction what it has not yet done in litigation designed to determine its right to condemn and its right to enter Shillito's land . 6. Justice will only be accomplished by the orderly determination of the issues in the proper forums and not by further resort to emotional, sometimes irrational, and always suspect actions of both parties and both counsel; as the record appears in these proceedings, there is nothing to be gained -10- • x • by short-cuts, snap decisions, or other extreme measures which are not urgent and will do more harm than good in the long run. Respectfully submitted, ~!/ torney for Defendant Driest -711-