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HomeMy WebLinkAbout03-6578Godfrey & Courtney, P.C. BY: Steven C. Courtney, Esquire Attorney I.D. No. 74669 P.O. Box 6280 Harrisburg, PA 17112 (717) 540-3900 LARRY E. FERRELL, VS. Plaintiff GREGORY W. LEHMAN and MICHELLE A. LEHMAN, Defendants Attorney for Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW NOTICE TO DEFEND Pursuant to PA RCP No. 1018.1 You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after the Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you. You are warned that if you fail to do so the case may proceed without you and ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CAN NOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LF~QAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association ::. 2 Liberty Avenue co Carlisle, PA 17013 (717) 249 -3166 (800) 990- 9108 ~, ~ ':' EN LA CORTE DE ALEGATOS COM I~N DEL CONDADO DE CUMBERLAND, PENNSYLVANIA DIVISION CIVIL AVI S O PARA DEFENDER Conforme a PA Nfim. 1018.1 USTED HA SIDO DEMANDO/A EN LA CORTE. Si usted desea defender conta la demanda puestas en las siguientes p~iginas, usted tienen que tomar acci6n dentro veinte (20) dias despu6s que esta Demanda y Aviso es servido, con entrando por escrito una aparencia personalmente o por un abogado y archivando por escrito con la Corte sus defenses o objeciones a las demandas puestas en contra usted. Usted es advertido que si falla de hacerlo el caso puede proceder sin usted y un jazgamiento puede ser entrado contra usted por la Corte sin m~ts aviso por cualquier dincro reclamado en la Demanda o por cualquier otro reclamo o alivio solicitado por Demandante. Ustedpuede perder dinero o propiedad o otros derechos importante para usted. USTED DEBE LLEVAR 12STE PAPEL A SU ABOGADO ENSEGUIDA. SI USTED NO TIENE UN ABOGADO, VAYA O LLAME POR TELI2FONO LA OFICINA FIJADA AQU~ ABA JO. ESTA OFICINA PUEDE PROVEER]2 CON INFORMACION DE C(SMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGARLE A UN ABOGADO, I~STA OFICINA PUEDE PROVEER]2 INFORMACI(SN ACERCA AGENCIAS QUE PUEDAN OFRECER SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO O GRATIS. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 LARRY E. FERRELL, VS. Plaintiff GREGORY W. LEHMAN and MICHELLE A. LEHMAN, Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW COMPLAINT AND NOW, comes Plaintiff, Larry E. Ferrell, by and through his attorneys, Steven C. Courtney, Esquire and Godfrey & Courtney, P.C., and states the following cause of action and in support thereof, avers as follows: 1. Plaintiff, Larry E. Ferrell, is an adult individual residing at PO Box 13, Orrstown, Franklin County, Pennsylvania. 2. Defendants, Gregory W. Lehman and Michelle A. Lehman are adult individuals with a last known address of 2332 Old Sam Mill Drive, Newburg, Cumberland County, Pennsylvania. 3. Plaintiff is the lawful owner of land located in Hopewell Township, Cumberland County, as a result ora deed dated March 5, 1999, said deed recorded on March 5, 1999, in the office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Book 195, at page 806. A true and correct copy of said Deed is attached hereto, incorporated herein and marked as Exhibit "A". 4. Plaintiff's land is more fully described as follows: ALL the following described real estate lying and being situate in the Hopewell Township, Cumberland County, Pennsylvania, bounded and limited as follows: BEGINNING at the Southeast comer of lands now or formerly of Vernon H. Bricker and Caroline M. Bricker, his wife, thence along the said lands in a Northerly direction a distance of two hundred seven (207) feet, more or less, to a point of lands now or formerly of Wilbur A. Fogelsonger, a distance of one hundred twenty (120) feet, more or less, to a point, the line of land now or formerly of Mitchell Heirs; thence along lands now or formerly of Michell Heirs in a southerly direction a distance of three hundred sixty-five (365) feet, more or less, to a point; thence in a westerly direction along lands now or formerly of Flyer, a distance of two htmdred (200) feet, more or less, to a point at the place of BEGINNING. BEING the same real estate that Richard E. Wilson and Elizabeth A. Wilson, husband and wife, by deed dated May 6, 1990, and recorded in Cumberland County Deed Book Volume 034, page 90 conveyed to Raymond M. Smith and Laura E. Smith, husband and wife, Grantors herein. woodland. 6. 7. Said Plaintiff's land described in Paragraph 4 hereinabove is not open or unenclosed Defendants are the present owners of land surrounding the land of the Plaintiff. Defendants acquired title to Defendants' land by deed transferring ownership in the real property from Thomas D. and Karen L. Daihl and said deed was recorded in the Recorder of Deeds in Cumberland County, Pennsylvania. 8. Defendants' land was formerly owned by Thomas D. and Karen L. Daihl, husband and wife, of Cumberland County, Pennsylvania. Plaintiff's land is routinely used by the Plaintiff and intended to be used as a residence. 10. Plaintiff has enjoyed free access and uninterrupted use and right of way over Defendants' land on a dirt road approximately ten (I 0) feet in width. 11. Plaintiff has enjoyed free access and uninterrupted use and right of way over Defendants' land on a dirt road until September 1999. 12. Plaintiff's land was formerly owned by Raymond M. and Laura E. Smith. The Smiths enjoyed free access and uninterrupted use of right of way over Defendants' land on the aforesaid dirt road for a period well over nine (9) years. 13. Plaintiffs' land was formerly owned by Richard E. and Elizabeth Wilson, Vernon H. and Caroline 13ticker and Wilber A. Fogelsonger, all of whom are believed to have enjoyed free ! access and interrupted use and right of way over Defendants' land on the aforesaid dirt road for a period well over one hundred (100) years. The aforesaid dirt road has been in hostile, open visible and notorious and continuous use by Plaintiff and his predecessors in title for a period in excess of twenty-one (21) years. 14. On December 9, 1983, a Consent and Acknowledgment was filed in the Office of the Recorder of Deeds in Cumberland County, Pennsylvania, in Deed Book 291, at page 453, relative to the aforesaid described property. A true and correct copy of said Consent and Acknowledgement is attached hereto, incorporated herein and marked as Exhibit "B". 15. Said Consent and Acknowledgment described in Paragraph 14, provides, inter ~ for the use and enjoyment of the private unimproved mountain roads as identified on the survey attached hereto by owners of land underlying, abutting and adjacent to the said road. See Exhibit 16. The aforesaid dirt road has been hostile, open, visible and notorious and continuous use by Plaintiff and his predecessors in title for a period in excess of twenty-one (21) years. 17. Said road was in open and visible use of the Plaintiff or his predecessors at the time Defendants purchased the property. 18. On or about September 1999, the previous owners who arc the Defendants relatives blocked the foresaid road with landfill thereby preventing Plaintiff from obtaining access to the land by use of the said road. 19. Defendants have refused to remove said obstructions and have continued to assert their right to obstruct and close the road and have threatened to obstruct and close the road on various occasions to date and are presently obstructing the road. 20. Plaintiff must use the dirt road to gain access to his land by use of motor vehicle over the land belonging to Defendants who have blocked the Plaintiff from using the dirt road by obstructing said road with various items. 2 I. Defendants have threatened Plaintiff with physical harm if the dirt road is used by Plaintiff or if Plaintiff crosses Defendants' land to gain access to Plaintiff's land. 22. If Defendants carry out their threat to obstruct and close the road again, Plaintiff will suffer irreparable damage, injury and harm in that he will be denied ingress and egress to his property and will be deprived of the right to occupy and enjoy his property to his great damage and loss. 23. Defendants obstructed and closed the dirt road in violation of the Consent and Acknowledgment attached hereto as Exhibit "B". 24. Plaintiff alleges that the dirt road is a connecting road between Old Saw Mill Road and the enclosed parcels of land and is the sole method of ingress and egress to and from Plaintiff's property, and the use of the dirt road is necessary for the beneficial use and enjoyment of Plaintiff's property. 25. Plaintiff alleges that said right of way has been used on a regular basis by previous owners of Plaintiff's land, present and previous owners of lands appurtenant thereto, and by members of the general public, for a period in excess of 100 years. 26. Plaintifffurther alleges that the hostile, open, visible, notorious and continuous use of the dirt road established an easement by prescription in favor of the Plaintiff. COUNT I- EASMENT IMPLIED BY NECESSITY 27. Plaintiff incorporates paragraph 1 through 26 of this Complaint by reference as if set forth in their entirety. 28. ?laintiffalleges that Defendants, upon their purchase of the lands through which the dirt road runs, were a~vare of the existence of the use of the road and its permanent nature. 29. The dirt road is an open and visible roadbed, which has been used continuously by Plaintiffsince his purchase and prior to that by the former owners. 30. There exists no public road or other means of ingress or egress to the land locked property belonging to Plaintiff or other owners except across the dirt road, thereby making use of the dirt road right of way an actual necessity. 31. Plaintiff's land is completely land locked with no public road frontage or access road for ingress of egress, other that the aforementioned dirt road. Plaintiff alleges that an easement by necessity has arisen, thereby affording Plaintiff an easement across Defendants' land for ingress, egress and regress for the beneficial use and enjoyment of Plaintiff's property. COUNT II- PUBLIC ROAD RIGHT OF WAY 32. Plaintiff incorporates paragraphs 1 through 31 of this Complaint by reference as if set forth in their entirety. 33. Plaintiff and his predecessors in title have not used the dirt road with any permission or willing consent of the Defendants. 34. Plaintiff and his predecessors in title used the dirt road right of way openly and with kmowledge of such use communicated to Defendants and their predecessors in title, 35. The dirt road right of way has been continuously and openly used by other members of the general public without let or hindrance for a period in excess of 100 years. 36. The private dirt road is in actuality a public dirt road. COUNT III- EXPRESS EASEMENT 37. Plaintiff incorporates paragraphs 1 throug)~ 36 of this Complaint byreference as if set forth in their entirety. 38. Defendants accepted their land subject to Plaintiff's easement set forth in the Consent and Acknowledgement marked as Exhibit "B". 39. Defendants' refusal to open the dirt road is so egregious that attorney's fees expended or expected to be expended by Plaintiff in the amount of $4,000.00 should be awarded to Plaintiff. WItEREFORE, Plaintiff, Larry E. Ferrell, respectfully requests this Honorable Court to enter judgment in favor of the Plaintiffand against Defendants and enter an Order of Court on Count I of this Complaint awarding Plaintiffan easement by prescription across Defendants' property; or in the alternative, enter an Order of Court in accord with Count II of this Complaint, awarding Plaintiff as easement by implication and necessity for ingress and egress to and from Plaintiffs property across Defendants' property; or in the alternative, enter an Order of Court in conformance with Count III of this Complaint, declaring the aforesaid dirt road to be a public road right of way to and for authorities; and Plaintiff FURTHER prays this Court issue a preliminary injunction enjoining the Defendants from obstructing, blocking, or otherwise interfering with Plaintiffs right of access through Defendants' land; and, upon the hearing, enjoin the Defendants form obstructing, blocking or interfering with Plaintiffs use of the dirt road a~nd Plaintiffs right of access over said dirt road through Defendants' land, and FURTHER that this Court order the Defendants to remove any gates, posts, fences, barriers, barricades or other obstructions, which they may have places across the dirt road, easement or right of way of Plaintiff, and restore said road and right of way to its existing condition at the time immediately prior to Defendants' acts of obstruction; award monetary damages to Plaintiff for deprivation of use and enjoyment of Plaintiffs property and interference with the same by Defendants; award Plaintiff court costs and reasonable attorney's fees expended in enforcement of Plaintiff's right of access through Defendants' land; and retain jurisdiction of this matter to ascertain that the Order of Court is obeyed by the Defendants and award such other relief as this Court may deem just and proper. Respectfully submitted, GODFREY & COURTNEY, P.C. Steven C. Courtney, Esquire 2215 Forest Hills Drive Suite 36/Box 6280 Harrisburg, PA 17112 (717) 540-3900 I.D. # 74669 Attorney for Plaintiff VERIFICATION I, Larry E. Ferrell, hereby certify that the following is correct: The facts set forth in the foregoing Complaint are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Complaint is that of counsel and not my own. I have mad the Complaint, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Compliant is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Date: Exhibit A THIS DEED MADE the ~ day of V]/~,td~ , 199~, BETWEEN Raymond M. Smith and Laura E. Smith, his wife, of Carlisle, Cumberland County, Pennsylvania, hereinafter called GRANTOR(S) AND Larry E. Ferrell, of Orrstown, Franklin County, Pennsylvania, hereinafter called GRANTEE, WITNESSETH, That in consideration of the sum of Twelve Thousand ($12,000.00) Dollars in hand paid the receipt  is hereby acknowledged, the said grantors do hereby nd convey in fee simple to said grantee, ALL the following described real estate lying and being situate in the Hopewell Township, Cumberland County, Pennsylvania, bounded and limited as follows: BEGINNING at the Southeast corner of lands now or formerly of Vernon H. Bricker and Caroline M. Bricker, his wife, thence along the said lands in a Northerly direction a distance of two hundred seven (207) feet, more cr less, to a point of lands now or formerly of Wilbur A. Fogelsonger; thence in an easterly direction also lands now or formerly of Wilbur A. Fogelsonger, a distance of one hundred twenty (120) feet, more or less, to a point, the line of land now or formerly of Mitchell Heirs; thence along lands now or formerly of Mitchell Heirs in a southerly direction a distance of three hundred sixty-five (365) feet, more or less, to a point; thence in a westerly direction along lands now or formerly of Flyer, a distance of two hundred (200) feet, more or less, to a point the place of BEGINNING. BEING the same real estate that Richard E. Wilson and Elizabeth A. Wilson, husband and wife, by deed dated May 6, 1990, and recorded in Curaberland County Deed Book Volume 034, page 90 conveyed to Raymond M. Smith and Laura E. Smith, husband and wife, Grantors herein. AND the said Grantors will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, said Grantors have hereunto set their hands and seals the day and year first above written. WITNESS: STATE OF PENNSYLVANIA : COUNTY OF FRANKLIN - ~ AL ) Rayf~ond M. Smith Laura E. : SS : On this $f2~. day of ~.0P~ , 199~, before me, the undersigned officer, personally appeared Raymond M. Smith and Laura E. Smith, husband and wife, known to me (or satisfactorily proven) to be the persons whose name are subscribed to the within instrument, and acknowledged the foregoing deed to be their act and deed, and desire:d.._t~..same tO be recorded as such. '~-'~-..~.~: .:c~:.~., .. %~i~ness my hand and official seal, the day 'a'~.i~.~fJT.~.~ aforesaid.~ ~~/~ ~'~,~"'~.~,~'-~,~..~' :' I hereby certify that Grantee(s) precise residence and post office address is: ~ % .' in ~h :' :~ :i :e for the recormn~':~'~ Exhibit B being an owner of one or more tracts of mountain land in HopeweH Tow~Mp, (Signature O~ L~ndo~ner) On ~is, the ~ day of~,' / , 1983, person~y f,// CONSENT A~D ACKNOWLEDGMENT private road leadl~ from L.R. 210~3~ thence w~erly parallel to ~e Pen~ylvanla ~f~ture o~ ~downar) COMMONWEALTH OF PENNSYLVANIA COUNTY OP CUMBERLAND ' on this, the .~ ~. day of ~ . ~ ~, ~ ~aA~] ~, ~ , known to me t~e~o p~n wh~e name ~ lu~eribed to the wl~ ~trument, ~d ac~owledE~ ~t~h~ ~eeut~ the ~me for ~ p~ there~ oonta~ned, ~ wltn~ wher~ I have h~e~to set my h~nd and offfei~ ~.,,.... ~.~, ,. ~ Notary public 29'I, ~AG~ 4.19 CONSENT A~D ACKNOWLEDGMENT being, a~ owner of one or more tracts of mountain lend in HopeweU Township, · . ~'~-'~mherland Cotmty~ Book "1~", Volume 25, Page 413. (Signature of ~downer) ~ COMMONWEALTH OF PENNSYLVANIA ) .' SS. "/' CO'U~T¥ O~ CUMBERLAND ) .,? On this, the ,~77~ dayof ~/~ ~ , 19,3, per~o~yapp~ person whose name ~s su~erlbed to the within lmtrument, ~nd acknowledged t~at he 291 ~,~u~ dSO CONSENT A~D ACKNO~LEDOMENT being.an owner of one or more tracts o! mountain land in HopeweU Townshlpt ~M:/e~s(es) b~[ng ~e~tifi~ as Mountain Land Tract ~o, (Signature of Landowner) COMMONWEALTH OF PENNSYLVANIA ) ~ 88. · . COUNTY OF CUMBERLAND ) Oa th/st the ~ ,dayof ~e. person whose name/s aubserlbed to the within instrument, ~nd acknowledged that ~ ~ :=,. ,/ in witness whereof, I have hereunto set ~ hand and offlcI~ se~, ~ CONSENT AND ACKNOWLEDGMENT ~oo~ ~31. r~i 453 ~ --. SHERIFF'S RETURN - REGULAR CASE NO: 2003-06578 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FERRELL LARRY E VS LEHMAN GREGORY W ET AL CPL. TIMOTHY REITZ , Cumberland County,Pennsylvania, Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the 8th day of January by handing to together with says, the within COMPLAINT & NOTICE LEHMAiq GREGORY W PLAINTIFF , at 2041:00 HOURS, on the at 232 OLD SAWMILL DRIVE NEWBURG, PA 17240 MICHELLE A LEHMAN a true and attested copy of COMPLAINT & NOTICE 2004 and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 13.80 Affidavit .00 Surcharge 10.00 .00 41.80 Sworn and Subscribed to before me this /3~ day of / ;Prothonotary So Answers: R. Thomas Kline 01/09/2004 GODFREY & COURTNEY ~J D~G~y Sheri/ REGULAR SHERIFF'S RETURN CASE NO: 2003-06578 P COHHONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PERRELL LARRY E VS LEHMAN GREGORY W ET AL CPL TIMOTHY REITZ Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE LEHMAN MICHELLE A DEFENDANT at 2041:00 HOURS, at 232 OLD SAWMILL DRIVE NEWBURG, PA 17240 MICHELLE A LEHMAN a true and attested copy of COMPLAINT Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the on the 8th day of January 2004 by handing to & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /3 ~ day of /P~othonotary So Answers: R. Thomas Kline 01/09/2004 LARRY E. FERRELL, Plaintiff GREGORY W. LEHMAN and MICHELLE A. LEHMAN, Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-6578 Civil CIVIL ACTION - LAW NOTICE TO PLEAD TO THE PLAINTIFF: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a judgmem may be entered against you. WEIGLE & ASSOCIATES, P.C. Date: ~'~/,~,~ ~ )o,~t~ By: Richard L. Webber, Jr., EsqUire Attorney for Defendants Attorney ID g49634 126 East King Street Shippensburg, PA 17257 (717)532-7388 Page 1 of 8 Pages LARRY E. FERRELL, Plaintiff GREGORY W. LEHMAN and MICHELLE A. LEHMAN, Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-6578 Civil CIVIL ACTION - LAW ANSWER TO COMPLAINT AND NOW come the Defendants, Gregory W. Lehman and Michelle A. Lehman, by and through their attorneys, Richard L. Webber, Jr., Esquire, and Weigle & Associates, P.C., and answer PlaintiW s Complaim as follows: 1. Admitted. 2. Admitted, except that Defendants' street address is "Saw" Mill Drive, not "Sam" Mill Drive. 3. Admitted. 4. After reasonable investigation, Defendants are without sufficient information to form a belief as to the precise description for Plaintiff's land. The allegation is therefore denied. 5. Denied. Plaintiff's land, as well as all the land surrounding Plaintiff's land, is unenclosed woodland. 6. Denied. Defendants own land which lies approximately south of Plaintiff's land; however, Defendants' land does not surround Plaimiff's land. 7. Admitted. 8. Admitted. Page 2 of 8 Pages WEIGLE ~ ASSOCIATES, RE. -- ATTORNEY$ At LAW 126 EAST KINg STREET SHIPPENSBURG, pA 172S7 1397 10. 11. 12. 13. 14. It is denied that Plaintiff's land is routinely used or that it ever was routinely used. Defendants lack sufficient information to form a belief as to PlaintiWs intentions concerning the property. That averment is therefore denied. Denied. Plaintiff has not enjoyed free access and uninterrupted use and a right of way over Defendants' land. It is denied that there is a dirt road. Denied. Plaintiff has not enjoyed free access and uninterrupted use and a right of way over Defendants' land. It is denied that there is or was a dirt road on Defendants' land. It is admitted that PlaintiWs land was formerly owned by Raymond M. and Laura E. Smith. It is denied that the Smiths enjoyed free access and uninterrupted use of fight of way over Defendants' land. It is denied that there is or was a dirt road on Defendants' land. It is denied that the persons listed enjoyed free access and use and fight of way over Defendants' land for over 100 years or any other length of time. It is denied that any use of Defendants' land has been hostile, open, visible, notorious or continuous for a period in excess of twenty-one (21) years. Defendants lack sufficient information to form a belief as to the names of the former owners of Plaintiff's land. That averment is therefore denied. It is denied that there is or was a dirt road. It is admitted that a Consent and Acknowledgment as set forth in Plaintiff's Exhibit "B" was filed on the date in question and recorded as stated. It is denied that the Consent and Acknowledgment affects Defendants' land. Defendants do not possess sufficient information to form a belief as to whether the Consent and Acknowledgment relates to PlaintiWs land. That allegation is therefore denied. Page 3 of 8 Pages 15. It is denied that Plaintiff's recitation of Exhibit B accurately reflects the actual text of Exhibit B. The language in the Exhibit speaks for itself. 16. Denied. There was never a dirt road located on Defendants' land that was used by Plaintiff or his predecessors in title. 17. Denied. There was no open and visible use of a road by Plaintiff or his predecessors when Defendants purchased the property, nor did a road exist at that time. 18. Admitted. 19. It is admitted that Defendants have not removed the obstruction. It is admitted that Defendants continue to assert their right to prevent Plaintiffs from using Defendants' property. Any averment or implication that Plaintiffs made any requests to Defendants is denied. 20. Denied. Plaintiff has access to his land by other means. There is no dirt road. 21. Denied. At no time have Defendants made any threats to Plaintiff. 22. Denied. Plaintiff has access to his land via another route. Defendants have not threatened Plaintiff in any manner. Plaintiff was aware that there was no legal access through Defendant's land. In addition, Defendants' predecessors in title informed Plaintiff, prior to Plaintiff's purchase of the land, that there was no legal access through Defendants' land. There is no dirt road. 23. Denied. The Consent and Acknowledgment does not relate to Defendants' land or Plaintiff's land. There was no dirt road. 24. Denied. Plaintiff has access to his land via another route. There is and was no dirt road. Page 4 of 8 Pages 25. Denied. There is no "right of way." Defendants' land has not been used on a regular basis by previous owners of Plaintiff's lands or by members of the general public for a period of 100 years or for any other length of time. 26. Denied. The averments in Paragraph 26 contain a conclusion of law to which no response is required. COUNT I - EASEMENT IMPLIED BY NECESSITY 27. No response is required. 28. Denied. There is no dirt road on Defendants' land prior to Plaintiff's purchase of the land. Defendants' predecessors informed Plaintiff that there was no right of way. 29. Denied. There is no dirt road. There is no open and visible roadbed. Plaintiff and the former owners have not used Defendants' land continuously. Plaintiff has access via another route. 30. Denied. Plaintiffhas other means of ingress and egress. There is no dirt road. 31. Denied. Plaintiff has other means of ingress and egress. Plaintiff's averment that an easement by necessity has arisen is a legal conclusion for which no response is required. There is no dirt road. COUNT II - PUBLIC ROAD RIGHT-OF-WAY 32. No response is required. 33. Denied. There is no dirt road. 34. Denied. There is no dirt road. Plaintiff and his predecessors have not used Defendants' land openly. Page 5 of 8 Pages 35. Denied. Plaintiff's predecessors in title, Raymond Smith and Laura Smith, attempted to create a road from a small footpath. There was no continuous or open use of a dirt road. 36. Denied. The averment in Paragraph 36 of Plaintiff's Complaint is a conclusion of law for which no response is required. COUNT III - EXPRESS EASEMENT 37. No response is required. 38. Denied. Exhibit B does not relate to the Defendants' land or Plaintiff's land. In thc alternative, Exhibit B creates a license, not an easement. 39. It is denied that Defendants have committed any "egregious" acts. It is denied that Plaintiff is entitled to recover attorney fees. WHEREFORE, Defendants respectfully request that Plaintiff's claim be dismissed and judgment be entered in their favor and against Plaintiff. NEW MATTER 40. Defendants' land is unenclosed woodland. 41. The claim of Plaintiffis barred by 68 P.S. 411. 42. Defendants believe and therefore allege that there was never a common ownership of Defendants' land and Plaintiff's land. 43. The portion of land claimed by Plaintiff has not been continuously and openly used by other members of the general public. 44. Plaintiff was advised, prior to his purchase of his land, that Plaintiff and Plaintiff's predecessors in title did not have rights to use Defendants' land. 45. Plaintiff has access to his land via an established right-of-way to the west of his property. Page 6 of 8 Pages 46. The Consent and Acknowledgment form shown in Plaintiff's Exhibit B does not relate to Defendants' land or Plaintiff's land. 47. In the alternative to Paragraph 46 above, if the Court determines that Exhibit B did affect Defendants' land at the time it was executed, it created a license rather than an easement. 48. In the alternative to Paragraph 46 above, if the Court determines that Exhibit B affected Defendants' land when it was executed, it has since terminated by operation of law. WHEREFORE, Defendants respectfully request that Plaintiff's action be dismissed and that judgment be entered in favor of Defendants and against Plaintiff. Respectfully submitted: WEIGLE & ASSOCIATES, P.C. Date: ~' '-,~) ~-'~ )c~c~ By: Richard L. Webber, Jr., E~'4-uir~/ Attorney for Defendants Attorney ID #49634 126 East King Street Shippensburg, PA 17257 (717)532-7388 Page 7 of 8 Pages VERIFICATION / I verify that the statements made in the foregoing Answer to Complaintfa~tl~ue and correct. I understand that false statements herein are made subject to the penalties ~? 18 Pa. C.S. 4904, relating to unswom falsification to authorities. Dated: Gregory W. Lehman Michelle A. Lehman Godfrey & Courtney, P.C. BY: Steven C. Courtncy, Esquire Attorney I.D. No. 74669 P.O. Box 6280 Harrisburg, PA 17112: (717) 540-3900 LARRY E. FERRELL, VS. Plaintiff GREGORY W. LEHMAN and MICHELLE A. LEHMAN, Defendants Attorney for Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003 06578 CIVIL ACTION -LAW PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER AND NOW, comes Plaintiff, Larry E. Ferrell, by and through his attorneys, Steven C. Courtney, Esquire, and states the following Reply to Defendants' New Matter and in support thereof, avers as follows: Paragraph one (1) through thirty-nine (39) Plaintiff's Complaint is incorporated herein by reference as if set forth in its entirety. 40. Denied. Plaintiff denied that his land is unenclosed. 41. Denied. Paragraph 41 calls for a legal conclusion and the same are denied and proof thereto is demanded at the time of trial. 42. Denied. Paragraph 42 calls for a legal conclusion and the same are denied and proof thereto is demanded at the time of trial. 43. Denied. Paragraph 43 calls for a legal conclusion and the same are denied and proot'thereto is demanded at the time of trial. 44. Denied. Plaintiffwas told that thc road in question was his only way of gaining access to his property and that the previous owners used the same road. 45. Denied. Plaintiff denies that he has access to his land via an established right of way to the west of'his property. Denied. The attached Consent and Acknowledgement does relate to the land in 46. question. 47. Denied. Paragraph 47 calls for a legal conclusion and the same are denied and proof thereto is demanded at the time of trial. 48. Denied. Paragraph 48 calls for a legal conclusion and the same are denied and proof thereto is demanded at the time of trial. WHEREFORE, Plaintiff, Larry E. Ferrell, respectfully requests this Honorable Court to enterjudgment in favor of the Plaintiff and against Defendants and enter an Order of Court on Count I of this Complaint awarding Plaintiff an easement by prescription across Defendants' property; or in the alternative, enter an Order of Court in accord with Count I1 of this Complaint, awarding Plaintiff as easement by implication and necessity for ingress and egress to and from Plaintiff's property across Defendants' property; or in the alternative, enter an Order of Court in conformance with Count III of this Complaint, declaring the aforesaid dirt road to be a public road right of way to and for authorities; and Plaintiff FURTHER prays this Court issue a preliminary injunction enjoining the Defendants from obstructing, blocking, or otherwise interfering with Plaintiff's right of access through Defendants' land; and, upon the hearing, enjoin the Del'endants ~'orm obstructing, blocking or interfering with Plaintifffs use of the dirt road and Plaintiff's right of access over said dirt road through Defendants' land, and FURTHER that this Court order the Defendants to remove any gates, posts, fences, barriers, barricades or other obstructions, which they may halve places across the dirt road, easement or right of way o~' Plaintiff, and restore said road and right of way to its existing condition at the time immediately prior to Defendants' acts of obstruction; award monetary damages to Plaintiff for deprivation of use and enjoyment of Plaintiff's property and interference with the same by Defendants; award Plaintiff court costs and reasonable attorney's fees expended in enforcement of Plaintiff' s right of access through Defendants' land; and retain jurisdiction of this matter to ascertain that the Order of Court is obeyed by the Defendants and award such other relief as this Court may deem just and proper. Respectfully submitte¢ ~GODFREY & C~EY, P.C. By: Steven .~Courtney, Es~ire P.O. o~k6~4~ Harrisburg, PA 17112 (717) 540-3900 I.D. # 74669 Attorney for Plaintiff CERTIFICATE OF SERVICE AND N OW, this ~__ day o f/~.~ , 2004, I, Steven C. Courtney, Esq., of Godfrey & Courmey, P.C., attorneys[for Plaintiff, hereby certify that I served the foregoing Reply to New Matter this day by depositing the same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Richard L Webber, Esquire 126 East King Street Shippensburg, PA 17257 ~quire Godfrey & Courtney, P.C. BY: Stcven C. Courtney, Esquire Attorney I.D. No. 74669 P.O. Box 6280 Harrisburg, PA 17112 (717) ~40-3900 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS, LARRY E. FERRELL, Plaintiff VS. GREGORY W. LEHMAN and MICHELLE A. LEHMAN, Defendants CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003 06578 CIVIL ACTION -LAW PRAECIPE TO MARK ACTION AS SETTLED AND DISCONTINUED, TO THE PROTHONOTARY: PLEASE MARK THE ABOVE CAPTIONED ACTION AS SETTLED AND DISCONTINUED.. Respectfully submitted, GODFREY & COURTNEY, P.C. Y in er. E'~scl"~ Ste ey, Atto~ I.D. No. 74669 (717) 540-3900 Au~.27. 2004 II:47AM Wei~le & Associates No.4790 P, 7 P z, sE For good and valuable consideration, and intending to be legally bound hereby, Larry E. l~errell, with a mailing address of PO Box 13, Orrstown, Franklin County, Pennsylvania 17244 (hereinafter referred to as "FERR~LL,'), has released and discharged, and by these presents do for hims'elf, hi~ heirs, executors, adrniais~rator~, and assigns, release, acquit, and forever discharge Gregory W, L~hmgn and Miehelle A. Lehman, Of 232 Old Sawmill Road, Newburg, Cumberland Couuty, Pennsylv.ania 17240 (hereina.f~r referred to as "LEI-IMANS"), their succe,vors and assign, of and from any and all past, present and future actions, causes of actiun, claims, demands, damages, injuiics, compensation, third pim'y actions, remedies, stuts at law or in equity, including but not limited to, claims, remedies, or suits for contribution and/or indemnity, of whatever nature, and all consequential damages on account of, or in any way growing out of any and all known and unknown injuries, damages or clalm.~ resulting or arising from the injuries and losse~ sustained by FI~RRELL, relating to claims raised in a civil action flied by FERRELL to Cumberland County Docket No. 03-6578 Civil Term. upon receipt of payment as described herein, FERRELL will mark thc action docketed agaln~ LEHMAN$ in the Court of Common Pleas of C'umberland County to No. 03-6578 Civil Tetra, and the action docketed to No. 00-7936 Civil Term against Thomas D. Daihl and Karen L. Daihl, as settled, satisfied and discontinued, and provide a Certificate of Settlement to LEHMAN& The parties acknowledge that this settlement is the compromise of disputed claims, and that the compromise of this ' · LEHMAN$. action zs not to be construed as an admission of liability on the part of IN WITNESS WI-I~REOie, I have hereunto set rny hand and seal the day and year hereinafter written, intending to be legally bound and to legally bind my heirs, executors, administrators, and assigns. WrtNESS: Au~,27. 2004 1]:47AM No.4790 P, 8 COMI~O~TH OF PE2~rNSYLVANIA : coum-, or SS On t[i, /~;) day of ~_.~97~ ,21004, before me, the undeni~n~ offi~r, lrm-~onally aplpco~d LARRY E. I~RRELL,. known to me (or mtisf~ctoty proven) to be the l~rson whos~ n~me is subscribed to the within Release and acknowledgcd that he executed the same for the purpose therein contained. IN wI'rNESS WHEREOF, I hereunto set my hand and official seal. Notat3, Public L~:NVlMCN~dWEALTH OF PENNSYLVANIA r NOTARIAL SEAL J DEBORAH WARREN, Notary Public /$hippe~sburg Twp., Cum~rland County [My Commission Expires Nov 8,