HomeMy WebLinkAbout08-1234RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL, Husband
and Wife,
Plaintiffs
V.
TOM FALEY, RON REEDER,
RICK REIGHARD, BRYAN GEMBUSIA
and JIM BAKER, SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP, and
JOHN MCADOO and
CATHY MCADOO, Husband and Wife,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: MANDAMUS - EQUITY
. NO.
AVISO
FLOWER ?
LINDSAY
AAA ? AN'
26 West High Street
Carlisle, PA
proximos veinte (20) dias despues de la notificacion de esta
Demanda y Aviso radicando personalmente o por medio de un
abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objecciones a, las demandas
presentadas aqui en contra suya. Se le advierte de que si
usted falla de tomar accion Como se describe anteriormente, el
caso puede proceder sin usted y un fallo por cualquier suma de
dinero reclamada en la demanda o cualquier otra reclamacion o
remedio solicitado por el demandante puede ser dictado en
contra suya por la Corte sin mas aviso adicional. Usted puede
perder dinero o propiedad u otros derechos importantes para
usted.
USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea
defenderse de las quejas demandas que se presentan mas adelante
en las siguientes paginas, debe tomar accion dentro de los
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO
INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A
LA SIGUIENTE OFICINA ESTA OFICINA PUEDE PROVEERLE INFORMACION A
CERCA DE COMA CONSEGUIR UN ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADA,
ES POSIBLE QUE ESTA OFICINA LE PUEDO PROVEER INFORMACION SOBRE
AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO
A PERSONAS QUE CALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
(717) 249-3166
2
RAYMOND E. DIEHL and IN THE COURT OF COMMON PLEAS
GENEVIEVE A. DIEHL, Husband : CUMBERLAND COUNTY, PENNSYLVANIA
and Wife,
Plaintiffs
V. MANDAMUS - EQUITY
'
TOM FALEY, RON REEDER,
RICK REIGHARD, BRYAN GEMBUSIA
and JIM BAKER, SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP, and
JOHN MCADOO and : NO.
CATHY MCADOO, Husband and Wife,
Defendants
COMPLAINT
AND NOW COME the Plaintiffs through their attorneys,
Saidis, Flower & Lindsay and represent as follows:
BACKGROUND
1. The Plaintiffs are Raymond E. Diehl and Genevieve A.
Diehl, husband and wife, adult individuals who reside at 401
Myers Road, Boiling Springs, South Middleton Township,
Pennsylvania 17007 (hereinafter "Diehls").
2. Defendants Tom Faley, Ron Reeder, Rick Reighard,
Bryan Gembusia and Jim Baker are the Supervisors of South
Middleton Township, a township of the Second Class with its
principal place of business at 520 Park Drive, Boiling Springs,
SAIDIS, k
FLOWER &
11NI)SM South Middleton Township, Pennsylvania 17007 (hereinafter
26 West High Street
Carlisle, PA "South Middleton Township").
3. Defendants John McAdoo and Cathy McAdoo, husband and
wife, are adult individuals who reside at 1538 Holly Pike,
?? 3
Carlisle, South Middleton Township, Pennsylvania 17015
(hereinafter "McAdoos").
4. Daniel W. Johnson and Joyce H. Johnson, husband and
wife, (hereinafter "Johnson") purchased a parcel of land
consisting of approximately 152 acres by Deed dated July 16,
1988 and recorded is Deed Book M-33, Page 512 from William E.
Hoerner, et al. (hereinafter "Hornor").
5. The Diehls and the Johnsons subdivided the property
conveyed from Hornor by reason of the Final Minor Subdivision
for Johnson/Diehl as recorded in Plan Book 70, Page 8.
6. Johnson retained Lot No. 1 of Plan Book 70, Page 8,
consisting of approximately 66.733 acres.
7. On or about May 18, 1995, the Diehls purchased from
Johnson Lot No. 2 of Plan Book 70, Page 8, consisting of
approximately 85.5 acres for $325,000.00, which Deed is
recorded in Deed Book 122, Page 296.
8. Diehls' purchase from Johnson was under and subject
SAMIS,
FLOWER &
LINDSAY
26 West High Street
Carlisle, PA
to a Ground Lease/Option to Purchase dated April 24, 1995 (the
"Option"), a copy of which is attached hereto and marked
Exhibit "A".
9. The Option involved approximately 13 acres of Lot 1.
10. A memorandum of the option was recorded on May 26,
1995 in Misc. Book 496, Page 1125.
11. The McAdoos purchased Lot No. 1 of Plan Book 70, Page
4
8 from Johnson on January 30, 2001, which Deed is recorded in
Deed Book 238, Page 1012.
12. The McAdoos' purchase of Lot No. 1 from Johnson was
under and subject to the Option in favor of the Diehls.
13. The McAdoos were aware of the Option prior to their
purchase from Johnson.
COUNT ONE
IN MANDAMUS
Diehl v. South Middleton Township
14. Paragraph 1 through 13, inclusive, are hereby
incorporated by reference.
15. The Diehls filed a Final Minor Subdivision Plan for
Raymond E. and Genevieve A. Diehl with South Middleton Township
as No. 07-15 (the "Subdivision").
16. The Subdivision created Lot No. 1A, which was
SAMIS,
FLOWER &
L nkms Y
26 West High Street
Carlisle, PA
subdivided from Lot No. 1, owned by the McAdoos, to be conveyed
as a lot addition to Lot No. 2, owned by the Diehls. A copy of
the sketch attached to the Subdivision is attached hereto as
Exhibit "B"
17. On February 14, 2008, South Middleton Township
considered the Diehl's request for approval of the Subdivision.
18. South Middleton Township voted 4-0, with one
Supervisor absent, in favor of the approval of the Subdivision
5
by South Middleton Township, conditioned upon the signature of
both the Diehls and McAdoos.
19. Despite repeated requests, the McAdoos have refused
to sign the Subdivision.
20. The Pennsylvania Municipalities Planning Code (the
"MPC") 53 Pa.C.S.A. §10101 et seq. governs the subject of
subdivisions by municipalities.
21. Section 107 (53 Pa.C.S.A.§ 10107) of the MPC provides
the following definitions:
`Applicant', a landowner or developer, as hereinafter defined, who has filed an
application for development including his heirs, successors and assigns.
`Landowner', the legal or beneficial owner or owners of land including the holder of
an option or contract to purchase (whether or not such option or contract is subject to any
condition), a lessee if he is authorized under the lease to exercise the rights of the landowner,
or other person having a proprietary interest in land.
`Land development', any of the following activities:.. .
(2) A subdivision of land.
22. The South Middleton Township Subdivision and Land
Development Ordinance requires a notarized Certificate of
ownership for recording of a subdivision plan.
23. The Diehls are "Landowners" and, therefore,
?
FLOWER
LINDSAY
26 West High Street
Carlisle, PA
Applicants for the subdivision of land within the requirements
of the MPC and the Subdivision and Land Development Ordinance
of South Middleton Township.
24. There is no requirement for any additional signature,
other than the Diehls.
6
25. Plaintiff requests Your Honorable Court enter an
Order directing South Middleton Township to accept Subdivision
Plan No.07-15 for recording with the signature of the Diehls
only.
COUNT TWO
IN EQUITY
Diehl v. McAdoo
26. The averments in Paragraph 1 through 25, being all
the preceding paragraphs, are hereby incorporated by reference.
27. Paragraph 12 of Exhibit "A" provides:
28. Lessee's Option to Purchase: During the term of this Lease, provided Lessee
is not in default, and provided that the Premises may legally be conveyed to Lessee, Lessee is
granted an option to require conveyance of the Premises to Lessee for no consideration
except that Lessee shall be exclusively liable for and shall bear the cost of any subdivision or
other municipal approvals necessary to permit such conveyance to occur. Title to the
Premises shall be good and marketable and shall be free of all liens and encumbrances, with
conveyance thereof to be by special warranty deed. All expenses incident to such conveyance
except for deed preparation costs, shall be borne exclusively by Lessee, including, but not
limited to, transfer tax and recording costs. (emphasis added)
29. The Diehls have paid all costs of subdivision.
30. Lot No. lA of the Subdivision may legally be conveyed
to the Diehls by the McAdoos.
31. Prior to seeking a subdivision, the Diehls requested
FLOWER &
LINDSAY
26 West High Street
Carlisle, PA
a variance from the South Middleton Township Zoning Hearing
Board.
32. The McAdoos opposed the requested variance by the
Diehls, which would have authorized conveyance pursuant to the
Option.
7
33. The Diehls' requested variance was denied as the
Zoning Hearing Board concluded it had no authority to grant a
variance over the McAdoos' objections.
34. The McAdoos also opposed the Diehls' requested
subdivision before South Middleton Township.
35. The Option requires the McAdoos, as successor to
Johnson, to act in good faith and deal fairly with the Diehls.
36. The McAdoos have breached their duties to the Diehls.
37. The specific performance by the McAdoos of the duties
set forth in the Option are the only available remedies to the
Diehls.
38. By reason of the McAdoos' breach of their duties,
including, but not limited to opposing the variance and the
subdivision, the Diehls have incurred attorney's fees, which
are substantial and continuing.
39. The McAdoos' actions in this matter have been
FLOWER &
LINDSAY
26 West High Street
Carlisle, PA
obdurate, vexatious and in bad faith.
WHEREFORE, Diehl request Your Honorable Court to order the
following relief:
1. Order the McAdoos to sign the Final Minor Subdivision
Plan for Raymond E. and Genevieve A. Diehl within ten (10) days
of the entry of your Final Order in this matter.
2. Order the McAdoos to execute a Deed of Special
Warranty for Lot lA of the Final Minor Subdivision Plan for
8
Raymond E. and Genevieve Diehl, free all liens and
encumbrances, within ten (10) days of the submission of the
Deed to the McAdoos for execution.
3. Order the McAdoos to pay reasonable attorney's fees
for the Diehls.
4. Enter a Declaratory Judgment in favor of the Diehls
and against the McAdoos as to the McAdoos, obligations under
the Option.
5. Such other relief as Your Honorable Court shall deem
appropriate or necessary.
Respec ly submitted,
February 25, 2008 Robett C. Saidis, Esquire
Attorney for Plaintiffs
Supreme Court ID 421458
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
717-243-6222
SAIDIS,
FLOWER &
LINDSAY
26 West High Street
Carlisle, PA
9
VERIFICATION
I verify that the statements made herein are true and
correct. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
DATED: 51 008
Ra and E. Diehl
10
• -7- F.VILESMATAFILEMIEHL.DDCU377,0•hE,AyadUw%f
A C¢nlcd: 03/2319511:1601 AM
Reviled: 04/13195 12:4602 PM
. q
GROITND LEASE/OPTION TO PURCHASE
LEASE made this Zq 74/ day APe l t , 1995, by and between DANIEL W.
JOHNSON and JOYCE H. JOHNSON, of South Middleton Township, Cumberland County,
Pennsylvania, hereinafter called "Lessor", and RAYMOND E. DIEHL and GENEVIEVE A.
DIEHL, of Monroe Township, Cumberland County, Pennsylvania, hereinafter called `.`Lessee".
1. Premises- Lessor leases to Lessee and Lessee leases from Lessor, all that certain tract
of land consisting of approximately 250 feet in width and extending along the southern boundary
of Lot 2 of the Johnson/Diehl Subdivision dated March 22, 1995 as prepared by Melham Associates,
-""- - a npy of which is attached hereto and marked as Exhibit "A."
As .used herein, the term "Premises" shall mean the real property above described.
2. Term. The term of this Lease shall be for twenty-nine (29) years, commencing on
and ending on
3. Rent: Rent for the entire term ' shall be $1.00 the receipt of which is hereby
acknowledged.
-' 4. Additional R ent• All charges, costs and expenses that Lessee assumes or agrees to
pay hereunder, together with all interest and penalties that may accrue thereon in the event of the
failure of Lessee to pay those items, and all other damages, costs, expenses, and sums that Lessor
may incur or that may become due by reason of any default of Lessee or failure by Lessee to comply
with the terms and conditions of this Lease shall be deemed to be additional rent, and, in the event
of nonpayment when due, Lessor shall have all the rights and remedies and Lessee all the obligations
as herein provided for failure to pay rent.
S. Taxes and Assessments- Lessee shall pay all taxes assessed and levied against the
Premises by any taxing authority. The same shall be equitably pro-rated on the basis of acreage of
the land comprising the Premises as compared with the total acreage of the tract owned by Lessor
which the Premises are a part. Further, Lessee shall pay allmunicipal assessments, if any, levied
on the basisof the frontage of the Premises on Rockledge Drive.
6. Insurance- Lessee shall carryliability insurance, at their own expense, in the sum
of Three Hundred Thousand ($300,000.00) Dollars in case of injury or damage to one person and
Exhibit "A"
e ,
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Five Hundred Thousand ($500,000,00) Dollars in case of injury or damage to more than one person
in the same accident or occurrence.
7. Inds Lessee shall indemnify Lessor against all expenses, liabilities, and claims
of every kind, including reasonable counsel fees, made by or on behalf of any person or entity
arising out of any injury or damage happening on or about the Premises: except such expenses,
liabilities and claims arising out of Lessors use of the Premises as set forth in paragraph 10 hereof.
8. Default or Breach: Lessee's failure to observe any condition hereunder and Lessee's
failure to cure such default within twenty (20) days of written notice given by Lessor thereof shall
constitute a default hereunder.
9. Effect of Default: In the event of such default, Lessor shall have the right to cancel
and terminate this Lease. In such event, the prothonotary or any attorney of any court of record is
hereby authorized to appear for and to confess judgment in an amicable action of ejectment against
Lessees, their heirs, assigns, executors, administrators for the premiss herein described and to direct
he immediate issuing of a Writ of Possession ith Writ of Execution for costs, including reasonable
attorneys fees, without asking-waive4.1v
I0, Exclusive Possession/Access: Lessee.'s use and possessionof the Premises during
the term hereof shall be exclusive.
11. Notice' All notices to be given with respect to this Lease shall be in writing. Each
notice shall be sent by registered or certified mail, postage prepaid and return receipt requested, to
Lessor and Lessee at the addresses set forth herein. Ever y notice shall be deemed to have been given
at the time it shall be deposited in the United States mails in the manner prescribed herein. Nothing
-contained-herein--shall-be --constr-ued--to--preclude--per-sonal_-service-of- an-y-notice-in the-manner
prescribed for personal service of a summons or other legal process.
12. Lessee's Option' To Purchase: During the term of this Lease, provided Lessee is
not in default, and provided that the Premises may legall y be conveyed to .Lessee, Lessee is granted
an option to require conveyance of the Premises to Lessee for no consideration except that Lessee
shall be exclusively liable for and shall bear the cost of any subdivision or other municipal approvals
necessary to permit such conveyance to occur. Title to the Premises shall be good and marketable.
and shall be free of all liens and encumbrances, with conveyance thereof to be by special warranty
F-
I
deed. All expenses incident to such conveyance except for deed preparation costs, shall be borne
exclusively by Lessee, including, but not limited to, transfer tax and recording costs.
13. Total Agreement; A=Iicable to Successors: This Lease contains the entire
agreement between the parties and cannot be changed or terminated except by a written instrument
subsequently executed by the parties hereto. This Lease and the terms and conditions hereof apply
to and are.binding on the heirs, legal representatives, 1succe. ssors, and assigns:pf.both parties.
14. Memorandum ofLmse: A Memorandum .of.Lease.providing notice of the
existence hereof shall be executed by the parties and recorded in the public records of Cumberland
County.
15. Annlicable Law: This agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
16• Time oftbe Essence: Time is. of the essence in all provisions of this Lease.
INWITNESS WHEREOF, the parties set their respective hands and seals hereto, intending
to be legally bound hereby.
WITNESS:
LESSOR:
Daniel W. Johnson
,Joyde H. Johigon
LESSEE:
J
`lea nd E. Diehl
Genevieve A. Diehl
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RAYMOND E. DIEHL and : IN THE COURT OF COMMON PLEAS
GENEVIEVE A. DIEHL, Husband : CUMBERLAND COUNTY, PENNSYLVANIA
and Wife,
Plaintiffs
V. MANDAMUS - EQUITY
TOM FALEY, RON REEDER,
RICK REIGHARD, BRYAN GEMBUSIA
and JIM BAKER, SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP, and
NO
69- l
-73
JOHN MCADOO and .
:
o
CATHY MCADOO, Husband and Wife,
Defendants
ACCEPTANCE OF SERVICE
I, Richard P. Mislitsky, Esq., hereby accept service in the
above-captioned Complaint on behalf of Tom Faley, Ron Reeder,
Rick Reighard, Bryan Gembusia and Jim Baker this <?2_ day of
February, 2008.
By:
Richard P. i itsky, E
SAIDIS,
FWNWR &
LINDSAY
nruw
26 West High Street
Carlisle, PA
CAD
f\3
RAYMOND E. DIEHL and IN THE COURT OF COMMON PLEAS
GENEVIEVE A. DIEHL, Husband : CUMBERLAND COUNTY, PENNSYLVANIA
and Wife,
Plaintiffs
V. MANDAMUS - EQUITY
TOM FALEY, RON REEDER,
RICK REIGHARD, BRYAN GEMBUSIA
and JIM BAKER, SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP, and
JOHN MCADOO and NO. Q - Id2 7
CATHY MCADOO, Husband and Wife,
Defendants
ACCEPTANCE OF SERVICE
I, Nathan C. Wolf, Esq., hereby accept service in the above-
captioned Complaint on behalf of John McAdoo and Cathy McAdoo
this 3-k day of February, 2008.
B?
SAIDIS,
FLOWER &
LEVDSM
AZT
26 West High Street
Carlisle, PA
-,?,
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C'`- 7 y
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i
RAYMOND E. DIEHL and : IN THE COURT OF COMMON PLEAS
GENEVIEVE A. DIEHL, Husband : CUMBERLAND COUNTY, PENNSYLVANIA
and Wife,
Plaintiffs
V. ; MANDAMUS - EQUITY
TOM FALEY, RON REEDER,
RICK REIGHARD, BRYAN GEMBUSIA:
and JIM BAKER, SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP, : NO. 08-1234
and JOHN MCADOO and CATHY
MCADOO, Husband and Wife
Defendants
ANSWER TO PLAINTIFF'S COMPLAINT
BY SOUTH MIDDLETON TOWNSHIP BOARD OF SUPERVISORS
AND NOW COME the Defendants, Tom Faley, Rick Reighard, Bryan Gembusia and
Jim Baker, Supervisors of South Middleton Township (hereinafter "Township"), by and through
their Solicitor Richard P. Mislitsky, and respond to Plaintiff's Complaint as follows:
BACKGROUND
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted, upon information and belief.
5. Admitted, upon information and belief.
6. Admitted, upon information and belief.
7. Admitted, upon information and belief.
8. Admitted, upon information and belief.
9. Admitted, upon information and belief.
10. Admitted, upon information and belief.
11. Admitted, upon information and belief.
12. Answering Defendants are without sufficient information to attest to the accuracy
of the averments contained in paragraph 12. Therefore, after reasonable investigation, the
averments contained therein are denied.
13. Answering Defendants are without sufficient information to attest to the accuracy
of the averments contained in paragraph 12. Therefore, after reasonable investigation, the
averments contained therein are denied.
COUNT ONE
IN MANDAMUS
Diehl v. South Middleton Township
14. Paragraphs 1 through 13, inclusive, are hereby incorporated by reference.
15. Admitted.
16. Admitted. By way of further answer, the Township admits the averments in
paragraph 16 based solely on the definition of "Subdivision" as stated in paragraph 15 of
Plaintiff's Complaint. Until Subdivision is approved and recorded, the document before the
Township is considered a "Plan".
17. Admitted. By way of further answer, the same issue had been presented to the
Board of Supervisors at a prior meeting. The Applicant requested that the Board of Supervisors
take a vote on approving the Plan. A motion to that effect was made and the vote was 2-2. The
motion did not carry. Thereafter the Applicant again appeared before the Township making the
same request on February 14, 2008.
-2-
18. Admitted in part. Denied in part. It is admitted that the Township Supervisors
voted 4-0 in favor approving the Subdivision Plan as submitted by the Applicant. It is denied
that the only condition attached by the Supervisors was that the signature of both the Diehls and
the McAdoos would be required before filing the Plan. To the contrary, there were other
conditions attached to the approval.
19. After reasonable investigation, the Township is unable to attest to the truth or
accuracy of the averments contained in paragraph 19.
20. Admitted.
21. The definitions contained in Section 107 of the Municipalities Planning Code
(hereinafter "MPC") speak for themselves. By way of further answer, the definitions of
"Applicant" and "Landowner" do not control this matter. To the contrary, the issue presented in
the instant matter is whether or not a subdivision plan can be filed of record when the recorded
owner of the property refuses to consent to the subdivision and questions the Applicant's
standing to request subdivision approval by questioning the underlying agreement upon which
the Applicant relies. The underlying agreement is attached to Plaintiffs' Complaint and marked
Exhibit A.
22. Admitted.
23. Denied. It is denied that the definitions set forth in paragraph 21 of Plaintiffs'
Complaint control the matter before this Honorable Court. To the contrary, the issue presented is
whether a subdivision plan can be filed of record when the recorded owner of the property
objects to the subdivision approval and to recording the Plan, and challenges the Applicant's
basis for requesting subdivision approval.
-3-
24. Denied. It is specifically denied that the recorded owner of the Plan need not
indicate his approval of the subdivision request by signing the Plan. To the contrary, Township
has consistently required the Owner's approval prior to recording the Plan. The issue presented
to the Township, and now to the Court, is a matter of first impression in South Middleton
Township and perhaps the entire Commonwealth of Pennsylvania. In addition, neither the
Township nor the parties hereto have been able to provide the Township with any legal authority
indicating that the Township's practice is improper. The Township therefore relied on its prior
practice as well as challenges to the validity of the agreement(s) relied on by Plaintiffs.
25. The averments contained in paragraph 25 require no responsive pleading pursuant
to the Pennsylvania Rules of Civil Procedure.
COUNT TWO
IN EQUITY
Diehl v. McAdoo
26 -39 The averments contained in paragraphs 26 through 39 inclusive are directed on
a defendant other than the answering defendant. The Township has been advised and therefore
avers that no responsive pleading is required pursuant to the Pennsylvania Rules of Civil
Procedure.
Res fu sub i
Richard P. Mislits , Esquire
Date: Attorney for Defendants
Supreme Court ID #28123
1 West High Street, Suite 208
PO Box 1290
Carlisle, PA 17013
717-241-6363
-4-
VERIFICATION
I verify that the statements made herein are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn
falsification to authorities.
SOUTH MIDDLETON TOWNSHIP
By (l.
BARBARA A. WILSON, Manager
VERIFICATION
I verify that the statements made herein are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn
falsification to authorities.
SOUTH MIDDLETON TOWNSHIP
RICK
-6-
CERTIFICATION OF SERVICE
I hereby certify that a copy of the Answer to Complaint by South Middleton Township
Board of Supervisors was served this date via United States Mail, postage prepaid, addressed as
follows:
Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
Richard P. Mislitsky, Esquire
?//'O/mar B
t? ram
O
? ?
, ,
RAYMOND E. DIEHL and GENEVIEVE : IN THE COURT OF COMMON PLEAS OF
A. DIEHL, Husband and Wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
V.
TOM FALEY, RON REEDER, RICK
REIGHARD, BRYAN GEMBUSIA, and
JIM BAKER, SUPERVISORS OF SOUTH
MIDDLETON TOWNSHIP, and JOHN
MCADOO and CATHY MCADOO, Husband
and Wife,
Defendants
No: 2008-1234 Civil Term
: CIVIL ACTION -
: IN MANDAMUS AND EQUITY
NOTICE TO PLEAD
To: Raymond E. & Genevieve Diehl
c/o Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
You are hereby notified to file a written response to the enclosed new matter and
counterclaim within twenty (20) days from service hereof or a judgment may be entered against you.
WOLF & WOLF
Dated: March Z , 2008
Na n C. squire
1 est eet
Carlisle, 17013
Supreme Court I.D. No. 87380
(717) 241-4436
Attorneys for Defendants McAdoo
RAYMOND E. DIEHL and GENEVIEVE : IN THE COURT OF COMMON PLEAS OF
A. DIEHL, Husband and Wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
V. : No: 2008-1234 Civil Term
TOM FALEY, RON REEDER, RICK
REIGHARD, BRYAN GEMBUSIA, and : CIVIL ACTION -
JIM BAKER, SUPERVISORS OF SOUTH : IN MANDAMUS AND EQUITY
MIDDLETON TOWNSHIP, and JOHN
MCADOO and CATHY MCADOO, Husband
and Wife,
Defendants
ANSWER, NEW MATTER AND COUNTERCLAIM OF
DEFENDANTS MCADOO TO COMPLAINT
AND NOW COME the defendants, John McAdoo and Cathy McAdoo, by and through
their counsel, Wolf & Wolf, Attorneys at Law, and present this answer, new matter and
counterclaim to the complaint filed by plaintiffs, and in support thereof state the following:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted. Byway of further response, the McAdoos acknowledgement as to the
existence of the document is not intended to be construed to be an agreement as to the validity of all
the terms and conditions contained therein, as set forth in the new matter and counterclaim which
follow.
9. Admitted.
10. Admitted.
11. Admitted.
12. Denied as a conclusion of law to which no response is required. To the extent a
response is deemed to be required, the McAdoos submit that the their purchase of Lot 1 from
Johnson was subject to the ground lease portion of the agreement, but the McAdoos maintain that
the Option to purchase is invalid for the reasons set forth in the new matter and counterclaim
below.
13. Admitted. Byway of further response, the McAdoos' admission is an
acknowledgement as to the existence of the document at the time of settlement, though they make
no admission as to its validity, as set forth in the new matter and counterclaim below.
COUNT ONE
IN MANDAMUS
DIEHL v SOUTH MIDDLETON TOWNSHIP
14. Defendants incorporate by reference their responses to paragraphs one through
thirteen herein.
15. Admitted.
16. Denied as stated. The proposed subdivision plan submitted by the Diehls, if
approved and recorded would create Lot 1A, but the Diehls have not satisfied the conditions of
approval and have not recorded the same, therefore said subdivision has not been created.
17. Admitted. Byway of further answer, such approval was subject to conditions, which
have not yet been satisfied.
18. Admitted, with clarification. Upon information and belief, South Middleton
Township imposed other conditions of approval upon the Diehls, and not merely the requirement
of obtaining the signatures of the McAdoos.
19. Admitted, with clarification. The McAdoos have refused to sign the subdivision
2
plan, in part due to their challenge as to the validity of the Option to purchase portion of the
agreement.
20. Admitted, with clarification. The Municipalities Planning Code (hereinafter referred
to as "W(7) is not the only authority governing subdivisions, as South Middleton is a duly
constituted township of the second class having a enacted a Zoning Ordinance and a Subdivision
Land Development Ordinance.
21. Admitted. Byway of further answer, the provisions of the MPC speak for
themselves and are not the sole source of authority in this matter.
22. Admitted.
23. Denied as a conclusion of law to which no response is required. To the extent a
response may be required, it is specifically denied that the Diehls are the landowners of the parcel as
the McAdoos are still the landowners for the purpose of the WC and the South Middleton
Ordinances. Byway of further response, the McAdoos have challenged the validity of the Option to
purchase portion of the agreement in the new matter and counterclaim below, upon which
agreement the Diehls rely in order to have any claim to be a landowner of the property.
24. Denied as a conclusion of law to which no response is required. To the extent a
response may be required, it is specifically denied that South Middleton Township does not require
the signature of the landowner in addition to requiring the signature of the applicant seeking
subdivision approval. By way of further response, it is submitted that no authority exists wherein
the applicant can obtain subdivision approval over the objection of the landowner, particularly when
the validity of the option to purchase is challenged as in the instant matter.
25. Denied. The averments of paragraph 25 of the complaint constitute a prayer for
relief to which no response is required. However, to the extent a response is required, it is
respectfully submitted that the Diehls are not entitled to the relief requested and, for the reasons
3
stated in this pleading, the Diehls' application for subdivision was not properly before the Township
in that the Diehls were without authority under the Option agreement to seek subdivision of a
portion of the property in question.
COUNT TWO
IN EQUITY
Diehl v. McAdoo
26. Defendants incorporate by reference their responses to paragraphs one through
twenty-five.
27. Admitted.
28. Paragraph 28 appears to have been mis-numbered and therefore no response is
offered thereto, as the complaint contains a recitation of paragraph 12 of Exhibit A, which is
identified in paragraph 27.
29. Admitted in part and denied in part. It is admitted that all costs associated the
requested subdivision have been paid, however it is denied that the subdivision is complete, as all
conditions of approval have not been met and because the McAdoos challenge the validity of the
Option to purchase portion of the agreement in the new matter and counterclaim below.
30. Denied. It is denied that Lot 1A exists legally, because the sought-after subdivision
of said lot is not complete, as the conditions of approval have not yet been met. Byway of further
response, it is specifically denied that Lot 1A can exist legally because the Diehls were without the
authority to seek subdivision approval of a portion of the Premises, as set forth fully in the new
matter and counterclaim below. Moreover, it is undisputed that the entire Premises cannot be
legally conveyed.
31. Admitted.
32. Denied as stated. It is specifically denied that the variance alone would have
authorized the conveyance of the Premises because the McAdoos challenge the validity of the
4
Option to purchase upon which the Diehls rely, as set forth fully in the new matter and
counterclaim below.
33. Denied as stated. It is specifically denied that the Zoning Hearing Board denied
approval solely based upon the objection of the McAdoos, but rather the Zoning Hearing Board
concluded that the variance requested was self-created, as the Diehls had participated in the creation
of the lot which they purchased, along with the creation of the Ground Lease/Option to Purchase,
assuming the risk that the Township would not change the Ordinances to eliminate the road
frontage requirement, thus pennitting the subdivision. Moreover, the Zoning Hearing Board also
found that the variance requested would not afford the minimum relief necessary.
34. Admitted.
35. Denied as stated. The Option, assuming arguendo that the agreement is valid, requires
only that the McAdoos convey the Premises, as defined therein, to the Diehls, provided such a
conveyance could be effectuated legally. The Option contains no provisions requiring the McAdoos
to cooperate in the Diehls securing any subdivision approvals, nor does the Option contain any
provision related to the dealings between the parties.
36. Denied as a conclusion of law to which no response is required. To the extent a
response may be required, McAdoo specifically denies that they have breached their obligations
under the agreement. On the contrary, McAdoo avers that their opposition to the approvals sought
by the Diehls is not governed by the agreement, particularly when the Diehls sought the
unauthorized subdivision of the Premises.
37. Denied. It is denied that specific performance is the only available remedy to the
Diehls as the Diehls are not entitled to the relief requested in the instant action. In fact, the granting
of specific performance would result in the Diehls' being unjustly enriched.
38. Denied. It is denied that the Diehls have incurred legal expenses as a result of any
5
breach by the McAdoos, but rather the Diehls have sought approvals from South Middleton
Township without legal authority to do so, and in an attempt to circumvent the clear provisions of
the Option. By way of further response, it is respectfully submitted that for the reasons set forth
herein, the Diehls have breached the agreement by seeking to obtain subdivision approval for only a
portion of the Premises, which they are clearly not entitled to do, therefore causing the McAdoos to
incur counsel fees which are substantial and continuing as a direct result of their breach.
39. Denied as a conclusion of law to which no response is required. To the extent a
response maybe required, McAdoo specifically denies that their actions have been in bad faith, were
vexatious or obdurate. On the contrary, McAdoo has refused to permit Diehl to circumvent the
clear provisions of the agreement and have opposed the repeated instances where Diehl has sought
township approvals without the authority to do so.
WHEREFORE, Defendants respectfully pray that this Honorable Court issue an order in favor of
Defendants and against Plaintiff, denying the relief requested by the Plaintiff including: denying their
request to order performance of the agreements, denying their request to direct the signing of a deed
of special warranty, denying their request for attorneys fees, denying their request for declaratory
relief, and to dismiss the complaint of the Plaintiff, and awarding the costs of this suit to the
Defendants, along with any additional relief that the Court may deem appropriate and just.
40. The responses contained in paragraphs one through thiny:nine are incorporated
herein as if set forth at length.
41. The Option agreement does not contain language requiring Johnson or McAdoo, as
the successor thereto, to cooperate with the Diehls' attempts to secure approval for subdivision of
the Premises.
42. The agreement referenced herein is attached to the Complaint as exhibit "A" and the
6
contents thereof are incorporated by reference as if attached to this pleading.
43. Defendants, at all times, acted in good faith, and in accordance with the terms of the
agreements between the parties.
44. The Diehls failed to act in good faith and now seeks to be rewarded for such failures.
45. Paragraph 1 of the agreement defines the Premises "all that certain tract of land
consisting of approximately 250 feet in width and extending along the southern boundary of Lot 2
of the Johnson/Diehl Subdivision dated March 22,1995...."
46. The provision continues to provide "[A]s used herein, the term "Premises" shall
mean the real property above described."
47.. Paragraph 12 of the agreement provides, "During the tern of this Lease, provided
Lessee is not in default, and provided that the Premises may be legally conveyed to Lessee, Lessee is
granted an option to require conveyance of the Premises to Lessee for no consideration except that
Lessee shall be exclusively liable for and shall bear the cost of any subdivision or other municipal
approvals necessary to permit such conveyance to occur."
48. The agreement does not authorize Lessee to require the Lessor to convey only a
portion of the Premises.
49. The agreement does not have any reference to the subdivision of a portion of the
Premises whatsoever.
50. The plain meaning of the terms used in the agreement authorizes Lessee to require a
conveyance of the entire Premises, only if such conveyance can occur legally.
51. The South Middleton Township Zoning Ordinance requires each parcel to have one
hundred and fifty (150) feet of road frontage as measured at the building setback line.
52. The Premises represents the only frontage upon a public road which the McAdoos'
lot (Lot 1) contains.
7
53. It is undisputed that the entire premises cannot be conveyed to Lessee legally
because of the aforementioned zoning ordinance requirement.
54. Because the entire Premises cannot be conveyed legally, Diehl has sought to
subdivide the Premises and force McAdoo to convey a portion of the Premises to Diehl.
55. Diehls' application to the Township was improperly accepted because Diehl lacked
the authority to subdivide the Premises, except to subdivide the entire Premises from McAdoo's
property (Lot 1).
56. If the conveyance as proposed is forced to occur, the Diehls have been clear that
they intend to continue enforcing the Lease provisions of exclusive possession as they relate to the
non conveyed portion of the Premises.
57. This result would unjust enrich the Diehls in that they would receive the benefit of
an unauthorized conveyance of the portion of the Premises as well as the benefit of retaining the
lease on the remaining portion of the Premises.
58. The agreement does not provide for the award of counsel fees to the Diehls for any
purported breach by the McAdoos.
59. The agreement does provide for the recovery of attorneys fees by McAdoo upon
breach by the Diehls.
60. The agreement states that it contains the entire agreement between the parties, and
therefore does not provide for an award of attorneys fees to the Diehls.
61. The agreement at issue between Diehl and McAdoo contains the lease provisions
and it contains a provision regarding the option to purchase.
62. The lease provision establishes consideration as follows:
a. Rent as provided byparagraph 3 for the entire term of one dollar ($1.00);
8
b. Taxes and Assessments as provided by paragraph 5 of the agreement, requiring
Lessee to pay all taxes assessed and levied against the premises by any taxing
authority; and,
c. Lessee's obligation under paragraph 6 of the agreement to carry liability
insurance, at their own expense, in the sum of Three Hundred Thousand
($300,000.00) Dollars in case of injury or damage to one person and Five
Hundred Thousand ($500,000.00) Dollars in case of injury or damage to more
than one person in the same accident or occurrence.
63. The lease provisions of the agreement include a specific term of twent -nine years
and identify the specific property subject to the lease.
64. The lease portion of the agreement also sets forth specific provisions related to
breach of the agreement and remedies for breach.
65. By contrast, the option to purchase paragraph specifically provides: "Lessee is
granted an option to require conveyance of the Premises to Lessee for no consideration...."
(emphasis added).
66. As averred by the Diehls, the Premises contains approximately 13 acres of land
owned by the McAdoos.
67. The Option to purchase is void because it lacks consideration for the conveyance of
the Premises.
68. The McAdoos submit that a contract without consideration is invalid under
Pennsylvania law.
69. The agreement does not contain any language which would protect the validity of
other provisions, in the event one provision is deemed to be invalid.
9
70. Upon information and belief, the Diehls have never paid a pro- rata share of property
taxes levied against the Premises to the McAdoos or the Johnson.
71. On or about October 1, 2007, the McAdoos, through counsel, provided written
notice of request for payment to counsel for the Diehls.
72. In said correspondence, counsel indicated that the same represented notice under
paragraph 8 of the agreement concerning default, and advised that if payment was not received
within twenty (20) days, that the McAdOOS would consider the Diehls in default.
73. On or about October 3, 2007, counsel for the Diehls responded to said
correspondence demanding a calculation for the payment of property taxes due for the Premises.
74. Moreover, counsel for the Diehls indicated that without such calculation, the
purported notice under paragraph 8 was insufficient.
75. The McAdoos submit that the Diehls had possession of the detailed engineering
drawings to permit the calculation of the pro-rated portion of the total taxes levied, which
information is available through the Cumberland County Tax Assessment office.
76. Furthermore, the McAdoos aver that because the Diehls were parties to the
agreement when executed, that the Diehls would have had more information available to enable
them to calculate the taxes due.
77. The agreement does not require the McAdoos to calculate the amount of taxes due
for verification by the Diehls, only that the Diehls pay a pro- rata share of the total amount levied.
78. The Zoning Hearing Board found as fact that as of September 11, 2006, the Diehls
had not paid property taxes as required under the agreement.
79. To date, the McAdoos have not received any payment of evidence of escrowed
payment from the Diehls.
10
80. The Diehls are not entitled to equitable relief when they have not complied with the
provisions of the agreement they seek to enforce.
81. Moreover, the Diehls are entitled to judgment at law as a result of their default.
COUNTERCLAIM
McAdoo v. Diehl
Action for Declarato1y JudMent
82. The responses and averments of paragraphs one through eighty-one are
incorporated by reference as if set forth fully herein.
83. The agreement upon which the Diehls rely grants them exclusive possession of the
Premises during the term of the lease.
84. The McAdoos have complied with said provision and all other applicable provisions
of the agreement.
85. The McAdoos aver that they are not required to grant an option for a portion of the
Premises to the Diehls.
86. The clear language of the agreement establishes that the Lessee is granted an option
to require the conveyance of the Premises to Lessee... " (emphasis added.
87. The Diehls are not entitled to require the McAdoos to convey only a portion of the
Premises.
88. The Diehls are not entitled to seek subdivision approval to subdivide the Premises
from South Middleton Township.
89. The McAdoos aver that they are not required to cooperate in the securing of
approvals for a portion of the premises.
it
90. The McAdoos have requested payment from the Diehls for the required portion of
taxes assessed against the property since the inception of the agreement and have not received any
payment or evidence of payment to escrow.
91. Through counsel, on or about October 1, 2007, the McAdoos provided the required
notice under paragraph 8 of the agreement concerning "Default or Breach."
92. As the Diehls have failed to observe the condition of paragraph 5 of the agreement
even after being provided written notice of the same, McAdoos submit that the Diehls are in default
of the agreement.
93. The action initiated by the Diehls seeks relief in the form of requiring the McAdoos
to consent to the proposed subdivision plan, based on the provisions of the Ground Lease/Option
to Purchase.
94. The McAdoos submit that a determination of the parties' respective rights under this
Counterclaim would enable the Court to make a complete determination of all of the issues raised in
the complaint.
95. The claim raised by the Diehls for declaratory relief and specific performance have
put the McAdoos in the position where a determination of the validity of the option to purchase
provision is necessary to obtain a resolution of the parties' respective rights.
96. The McAdoos are unable to obtain relief in any other claim at law.
WHEREFORE, Defendants respectfully pray that this Honorable Court issue an order in favor of
Defendants and against Plaintiff, awarding Defendants the costs of this suit, reasonable attorneys
fees, and issuing declaratory judgment holding that the Option to Purchase provision of the
agreement pertaining is void for lack of consideration, or, alternatively, that the entire agreement is
terminated due to the default by the Plaintiffs in their failure to pay the assessed taxes, and the lack
12
of consideration of the Option to Purchase, the along with any additional relief that the Court may
deem appropriate and just.
Respectfully submitted,
WOLF & WOLF
Date: March 2008 B
Nath off, Esquire
S r e Court ID No. 87380
10 est High Street
Carlisle, PA 17013
Attorney for Defendants McAdoo
13
VERIFICATION
I, the undersigned, hereby verify that I am a defendant in this action and that the facts stated
in the above Answer, New Matter and Counterclaim are true and correct to the best of my
knowledge, information and belief. I understand that false statements herein are made subject to the
penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities.
9
2008 4" ZI, C
(? GZ
2:,/
7 "
ohn McAdoo
RAYMOND E. DIEHL and GENEVIEVE : IN THE COURT OF COMMON PLEAS OF
A. DIEHL, Husband and Wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
V.
TOM FALEY, RON REEDER, RICK
REIGHAR.D, BRYAN GEMBUSIA, and
JIM BAKER, SUPERVISORS OF SOUTH
MIDDLETON TOWNSHIP, and JOHN
MCADOO and CATHY MCADOO, Husband
and Wife,
Defendants
: No: 2008-1234 Civil Term
: CIVIL ACTION -
: IN MANDAMUS AND EQUITY
CERTIFICATE OF SERVICE
I, Nathan C. Wolf, Esquire, certify that a copy of the foregoing Answer, New Matter and
Counterclaim to Complaint has been served on this date by hand delivery upon the following
individuals:
Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West IEgh Street
Carlisle, PA 17013
Attorney for Plaintiff
Richarri P. Mislitsky, Esquire
1 West High Street
Carlisle, PA 17013
Solicitor for Defendant Township
Respectfiilly submitted,
WOLF & WOLF
Dated: March 0, 2008
NathPh C. Wolf,
10 West High Sty
Carlisle, PA 1701
Supreme Court I.D. No. 87380
(717) 241-4436
Attorneys for Defendants McAdoo
ZEa a
RAYMOND E. DIEHL and : IN THE COURT OF COMMON PLEAS
GENEVIEVE A. DIEHL, Husband : CUMBERLAND COUNTY, PENNSYLVANIA
and Wife,
Plaintiffs
V. : CIVIL ACTION
: IN MANDAMUS -EQUITY
TOM FALEY, RON REEDER,
RICK REIGHARD, BRYAN GEMBUSIA
and JIM BAKER, SUPERVISORS OF
SOUTH MIDDLETON TOWNSHIP, and
JOHN MCADOO and NO. 08-1234 Civil Term
CATHY MCADOO, Husband and Wife,
Defendants
REPLY, ANSWER TO NEW MATTER AND ANSWER TO COUNTERCLAIM
AND NOW COME the Plaintiffs, Raymond E. Diehl and
Genevieve A. Diehl (the "Diehls"), by and through their
attorneys, Saidis, Flower & Lindsay and file the following
Reply, Answer to New Matter and Answer to Counterclaim.
NEW MATTER
40. The Diehls incorporate, by reference, their averments
in paragraph 1 through 39, inclusive, of their Complaint.
41. Denied. By way of further answer, the McAdoos,
SAMIS,
FLOWER &
LINDSAY
ATTOHNEtS•AT•LAW
26 West High Street
Carlisle, PA
contrary to their duties have breached the Lease/Option,
Exhibit "A" to the Complaint by reason of the following:
a) The McAdoos have failed to act in good faith and deal
fairly with regard to the Lease/Option;
b) The McAdoos have breached their obligation as imposed by
the Restatement (Second) of Contracts adopted by the
? Y
SAIDIS,
FLOWER &
LINDSAY
ATMINEes.a -
26 West High Street
Carlisle, PA
Commonwealth of Pennsylvania; and
c) The "doctrine of necessary implication" applies to prevent
an injustice to the Diehls.
42. Admitted.
43. Denied. The averments of paragraph 43 state a
conclusion of law to which no response is required.
44. Denied. The averments of paragraph 44 state a
conclusion of law, to which no response is required.
45. No answer is required as Exhibit "A" to the Complaint
speaks for itself.
46. No answer is required as Exhibit "A" to the Complaint
speaks for itself.
47. No answer is required as Exhibit "A" to the Complaint
speaks for itself.
48. Denied as a conclusion of law. By way of further
answer, Exhibit "A" is silent as to the conveyance of a portion
of the Premises.
49. Admitted in part and denied in part. It is admitted
that there is no specific reference to the subdivision of a
portion of the Premises. It is denied there is a requirement
that the Premises be conveyed in a single transaction. Exhibit
"A" does provide for a time of conveyance which is when it is
legal to convey.
Whether the conveyance requires 1, 2, 3 or more
2
conveyances is immaterial. The expenses of subdivision and
municipal approvals are placed on the Diehls. In further
answer, the McAdoos objected to the Variance sought by the
Diehls which would have authorized conveyance of the entire
Premises. The Zoning Hearing Board found, as a conclusion of
law that the Board could find no authority to grant a Variance
over the McAdoos' objection to the grant of the Variance
(conclusion of Law #5). A copy of the Variance Decision is
attached hereto and marked Exhibit "B".
50. Denied. The averments of paragraph 50 state a
conclusion of law. By way of further answer, the term "entire
Premises" is not used in the Option. If that was the intent of
the parties, the words "entire Premises" could easily have been
inserted in Exhibit "A".
51. Admitted. The averments of paragraph 51 are the
SAIDIS,
LINDSAY
26 West High Street
Carlisle, PA
requirement of the current Zoning Ordinance. This is a
significant change from the Zoning Ordinance which was in
effect when the Final Minor Subdivision of Johnson/Diehl was
approved and recorded in Plan Book 70, Page 8.
52. Admitted in part and denied in part. The McAdoos
have never used access to their residence from Rockledge Drive.
Access to their residence has never been over the proposed lot
created by the Subdivision, but rather access has been
continuous by reason of Teitrick Lane, a private lane to Route
3
r ?
11I
34, which also serves several other residences. No road
currently exists or is proposed for the entire Premises or Lot
lA of the Subdivision.
53. Denied as a conclusion of law. By way of further
SAMIS,
FLOWER &
LINDSAY
erro??sxi:uw
26 West High Street
Carlisle, PA
answer, the McAdoos, contrary to their duties have breached
Exhibit "A" by reason of the following:
a) The McAdoos have failed to act in good faith and deal
fairly with regard to the Lease/Option;
b) The McAdoos have breached their obligation as imposed by
the Restatement (Second) of Contracts, adopted by the
Commonwealth of Pennsylvania; and
c) The "doctrine of necessary implication" applies to prevent
an injustice to the Diehls.
54. Admitted in part and denied in part. It is admitted,
the Diehls have sought to subdivide, but it is specifically
denied the Diehls are "forcing" the McAdoos to convey, but
rather the Diehls are seeking to enforce their legal rights,
which are binding on the McAdoos as successors to the Johnsons'
interest.
55. The averments of paragraph 55 state a conclusion of
law, to which no response is required.
56. No answer is required as Exhibit "A" speaks for
itself .
57. The averments of paragraph 57 state a conclusion of
4
law, to which no response is required. By way of further
answer, at the time the Diehls purchased Lot No. 2, Final Minor
Subdivision of Johnson/Diehl, recorded in Plan Book 70, Page 8,
the Diehls paid Johnson $325,000, which consideration was paid
for the Premises referred to in Exhibit "A" and Lot No. 2 of
the Final Minor Subdivision of Johnson/Diehl. Accordingly, no
consideration, except cost, as provided in Exhibit "A" was to
be paid upon conveyance to the Diehls. The Diehls would not be
"unjustly enriched", but rather would receive the benefit of
consideration already paid.
58. The averments of paragraph 58 state a conclusion of
law, to which no response is required. By way of further
answer, the McAdoos' conduct has been obdurate, vexatious and
in bad faith, which authorizes Your Honorable Court to award
attorney fees by statute, together with the significant and
ongoing engineering fees for which the Diehls seek
reimbursement.
59. No answer is required as Exhibit "A" speaks for
SAMIS,
I NDSM
errowvE?s.?ruw
26 West High Street
Carlisle, PA
itself.
60. No answer is required as Exhibit "A" speaks for
itself and the averments of this paragraph state a conclusion
of law. By way of further answer, the principles of contract
interpretation adopted by the Commonwealth of Pennsylvania,
apply to every contract dispute.
5
i i
61. No answer is required as Exhibit "A" speaks for
itself.
62. No answer is required as Exhibit "A" speaks for
itself.
63. No answer is required as Exhibit "A" speaks for
itself.
64. No answer is required as Exhibit "A" speaks for
itself.
65. No answer is required as Exhibit "A" speaks for
itself. By way of further answer, Exhibit "A" provides:
"for no consideration except that Lessee shall be
exclusively liable for and shall bear the cost of
any subdivision or other municipal approvals
necessary to permit such conveyance to occur."
The Diehls have incurred significant engineering and municipal
fees to obtain the subdivision, which constitute consideration
for the promise to convey. Exhibit "A", also, provides that
the parties "intending to,be legally bound hereby" executed the
same. 3 P.S. §6 provides if the intention to be legally bound
is stated, no consideration is necessary.
SAMIS,
FLOWER & The Premises contain 12.86 acres.
Denied
66
LINDSAY .
.
X170RNM-AT uw
26 West High Street 67. Denied. The averments of paragraph 67 state a
Carlisle, PA
conclusion of law, to which no response is required.
68. Denied. The averments of paragraph 68 state a
conclusion of law, to which no response is required.
6
69. Denied. The averments of paragraph 69 state a
conclusion of law, to which no response is required.
70. The Diehls have requested from the McAdoos and their
counsel, at various times, a calculation of the prorata share
of the property taxes. The taxes are sent to the legal
titleholder and there has been no demand by the McAdoos for the
payment of a specific amount. The Diehls stand ready and
willing to pay the taxes allocated to the Premises after
reasonable opportunity to review the same during the period of
the McAdoos' ownership.
71. Admitted. Attached hereto and incorporated hereby as
Exhibit "C"
72. Neither admitted nor denied. The correspondence of
counsel speaks for itself.
73. Admitted. A copy of the letter from the Diehls'
counsel is attached hereto, incorporated hereby and marked
Exhibit "D".
74. No answer is required as Exhibit "A" speaks for
SAMIS,
FLOWER &
LINDSAY
ATMIM -AT IAW
26 West High Street
Carlisle, PA
itself.
75. Denied. The McAdoos, were in possession of the tax
bills and could easily demand payment from the Diehls. The
McAdoos chose not to do the same and there was no written
demand until October 1, 2007.
76. Denied. The Diehls are without sufficient
7
information as to the accuracy of the averments contained in
paragraph 76. Therefore, after reasonable investigation, the
averments are denied.
77. Denied. The averments state a conclusion of law to
which no response is required. By way of further answer, the
tax bills have been sent to the McAdoos since March 2001. Nc
oral demand for payment was made until August 7, 2006, despite
paying the tax bills for more than five years.
78. Denied. Exhibit "C" speaks for itself. By way of
further answer, up to and including August 7, 2006, there had
never been an oral demand for taxes by the McAdoos or a written
demand until October 1, 2007. Upon both demands on August 7,
2006, and October 7, 2007, the Diehls offered to pay the taxes
upon receipt of a bill and an opportunity to verify the
calculation.
79. Admitted. There is no requirement for the payment of
any amount into escrow.
80. Denied. The averments of paragraph 80 state a
SAMIS,
I ENDS Y
ATTURNEYS-AT uw
26 West High Street
Carlisle, PA
conclusion of law, to which no response is required.
81. Admitted. To the extent that a. judgment at law
supplements the equitable relief of the Diehls.
WHEREFORE, the Diehls request judgment in their favor and
against the McAdoos for such relief as Your Honorable Court
shall order, including equitable relief, counsel fees,
8
¦
engineering fees and damages.
ANSWER TO
COUNTERCLAIM
McAdoo v. Diehl
Action for Declaratory Judgment
82. The averments and reply of the Diehls to paragraphs 1
SAIDIS,
FLOWER &
LINDSAY
ertoRrEts..vuw
26 West High Street
Carlisle, PA
through 81, inclusive, are hereby incorporated by reference.
83. No answer is required as Exhibit "A" to the Complaint
speaks for itself.
84. Denied. The averments of paragraph 84 state a
conclusion of law, to which no response is required.
85. Denied. The averments of paragraph 85 state a
conclusion of law, to which no response is required.
86. No answer is required as Exhibit "A" to the Complaint
speaks for itself.
87. Denied. The averments of paragraph 87 state a
conclusion of law, to which no response is required.
88. Denied. The averments of paragraph 88 state a
conclusion of law, to which no response is required.
89. Denied as a conclusion of law. By way of further
answer, the McAdoos, contrary to their duties have breached
Exhibit "A" by reason of the following:
a) The McAdoos have failed to act in good faith and deal
fairly with regard to the Lease/Option;
b) The McAdoos have breached their obligation as imposed by
9
the Restatement (Second) of Contracts, adopted by the
Commonwealth of Pennsylvania; and
c) The "doctrine of necessary implication" applies to prevent
an injustice to the Diehls.
90. Denied. The Diehls responded promptly on August 7,
2006 to the oral request and on October 3, 2007 to the written
request. A copy of the Diehls written response is attached
hereto as Exhibit "D". To the date of this Answer, no
additional demand for payment has been received from the
McAdoos. At no time have the McAdoos demanded a specific
amount.
91. The October 1, 2007 letter of the McAdoos' counsel,
SAMIS,
FLOWER &
LINDSAY
ATTURNEYS•AT•IAW
26 West High Street
Carlisle, PA
attached as Exhibit "C", speaks for itself. No answer is
required.
92. Denied. The averments of paragraph 92 state a
conclusion of law, to which no response is required.
93. No answer is required. The Complaint of the Diehls
speaks for itself.
94. No response is required to averments of paragraph 94.
95. Denied. The averments of paragraph 95 state a
conclusion of law, to which no response is required.
96. Denied. The averments of paragraph 96 state a
conclusion of law, to which no response is required.
WHEREFORE, the Diehls request Your Honorable Court to
10
SAIDIS,
LINDSAY
AnORNEYS-AT-L&W
26 West High Street
Carlisle, PA
order the following relief:
1) The Relief requested in the Complaint;
2) An Order for engineering fees;
3) An Order for damages;
4) An Order for the award of counsel fees; and
5) Such other Relief as Your Honorable Court shall deem
appropriate or necessary.
Dated:
7
*vbert, C. Saidis Es ui
q re
Attorney for Plaintiffs
Supreme Court ID #21458
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
717-243-6222
Respectful ubmitted,
11
VERIFICATION
I verify that the statements made herein are true and
correct. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
DATED: 9los
Ra nd E. Diehl
11
Ci
n
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Reply, Answer to New Matter and Answer to
Counterclaim was served this date via United States Mail, postage prepaid, addressed as
totlows:
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Richard P. Mislitsky, Esq.
I West High Street, Suite 208
P. O. BOX 1290
Carlisle, PA 17013
SAIDIS,
FLOWER &
LINDSAY
ATIOIQVk15-M-
26 West High Street
Carlisle, PA
Dated: /(v
SAIDIS, FLOWER & LINDSAY
Prlis McCoy '-
...d-?"?'° f:lF1LE6lDATJ,FILEIDIEHL.DDCt53T7;e??>F_A\jndUas?t?_~_ ' -? ??
5 hcvised: 04113195 )2:44:02 PM ? --11
EP (QTT! D LEA.S /OPTinT T Tn PURCHA SB
LEASE made this Z-' TN day Ape-)L_ 1995, by and between D12,=L W.
JOM,,TSOlq and JDYCE H. JOINSON, of South 2vfiddleton Township, Cumberland County,
Pennsylvania, hereinafter called "Lessor", and Fk -IMOND E. D= and GENEV=VE A.
DIET, of AZnnroe Township, Cumberland CountSc Fennsyh/ania, hertinaftcr called `.`Lessee".
1. Pr_.emi_5_'.s: Lessor leases to Lessee and Lessee leases from Lessor, all that certain tract
of land consisting of appro;;imately 250 feet in width and e5-tending along the southern boundary
ofLot 2 of the Johnson/Diehl Subdivision dated March 22, 1995 as prepared by Iv Ebwn kssoclatts'
-?- - a copy of which is attached "hereto and marked as-E-shibit "A."
As .used herein, the term "Premises" shall mean the real property above- described.
2. 'Term; The term of this Lease shall be for twenty-nine (29) years, comet°n-ing on
and ending on
3. Tent: Rent for the entire term sha11 be '"IM the receint of which is hereby
acl.nawledged.
4. Additional Rent: All charges, costs and e,°penses thatLessm assumes ar aCI TB-' to
pay hereunder, together with all interest and penalties that may ac3iue thereon in the evout of the
failure of Lessee to pay those items, and all other damages, costs, e;penses, and sums that Lessor
may incur or that may become due by reason of any default of Lessee or failure by Lessee to comply _
with the terms and conditions of this Lease shall be deemed to be additional rent, and in the event
of nonpayment when due, Lessor shall have all tl,c rights and remedies and Lessee all the obligations
as herein pm-Oded for failure to pay rent.
5. Ta PS and Assessments' Lessee shay pay all taxos assessed and IEvied against the
Premises by any ta;;ing authority. The same shall be equitably pro-rated on the basis of acreage of
the land comprising the Premises as compared with the total acreage of the tract ovmed by Lessor
which the Premises are a part. Further, Lessee shall pay aU.municipal assessments, Y.an3; le?"ied
on the basis-of the frontage .of the Premises .on P?ocl ledge Dnve.
6. Insurance: Lessee shall camel liability insurance; at their oven e3 pense, in the sum
of Tliree Hundred Thousand ($3 00, DOD. DO) D ollars in case of injury or dama.ge to one person and
Exhibit "A" to the Complaint
r
Five Hundred Thousand ($500,000.00) Dollars in case of injury or damage to more than one person
in the same accident or occurrence.
7. In ' . Lessee shall indemnify Lessor against all expenses, liabilities, and claims
of every kind, including reasonable counsel fees, made by or on behalf of any person or entity
arising out of any injury or damage happening on or about the Premises: except such expenses,
liabilities and claims arising out of Lessors use of the Premises as set forth in paragraph 10 hereof
S. Default DT-Breach. Lessee's failure to observe any condition hereunder and Lessee's
failure to cure such default within twenty (220) days of vrritten notice given by Lessor thereof shall
constitute a default hereunder.
9. Effect oMcfay)t: In the event of such default, Lessor shall have the right to cancel
and terminate this Lease. In such event, the prothonotary or any attorney of any court of record is
hereby authorized to appear for and to confess judgment in an amicable action of ejectment against
Lessees, their heirs, ass Bans, executors, administrators for the premiss herein described and to direct
-% he immediate issuing of a Writ of Possession With Writ of Execution for costs, including reasonable
7 ,i n r•-
i ti-C ILL .Y L"J ? C1 / ?? ? I
atbrneys' fees, without asking-rafoe of Cciurt?i 7
10. ExclusiiTe Possession/.Access Lessee.'s use. and possession of she Premises during`
the term hereof shall be exclusive:
11. N is ABU notices to be given with respect to this Lease shall be in writing. Each
notice shall be sent by registered or certified mail, postage prepaid and return receipt requested, to
Lessor and Lessee at the addresses set forth herein. Every notice shall be deemed to have been given
at the time it shall be deposited in the United States mails in the manner prescribed herein. Nothing
-contained-herein--shall--be -construed--to -preclude-per-sonal-service-of--an-y-notice-Mi - the-manner --
prescribed for personal service ofa summons or other legal process.
12. Lessee's Optibn' Ta Purchase: During the term of this Lease, provJ Lessee is
not in default; and provided that the Premises may legally be conveyed to .Lessee, .Lessee is granted
an option to requi; e conveyance of the Premises to Lessee for no considerati.on except that Lessee
shall be exclusively liable for and shall bear the cost of any subdivision or other municipal approvals
necessary to permit such conveyance to occur. Title to the Premises shall be good and marketable.
and shall be free of all liens and encumbrances, with conveyance thereof to be by special warranty
deed. All expenses incident to such conveyance except for deed preparation costs, shall be borne
ecclusively by Lessee, including, but not limited to, transfer tax and recording costs.
13. Total Agr m n s Annlicable to St?ccesGOrs This Lease contains the entire
agreement between the parties and cannot be changed or terminated except .by a written instrument
subsequently executed by the parties hereto. This Lease and the terms and conditions hereof apply
to and are:binding;on the heirs, legal representatives, 'succe,ssors, and assign:s:of.bo.th parties.
14. Memorandum nfLea e? A Memorandum of Lease.providing notice of the
existence hereof shall be executed by the parties and recorded in the public records of Cumberland
County.
l5, Annlicanle LawLaw: This agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
lo, Time ofthe Essence: Time is of the essence in all provisions of this Lease.
LET WITNESS ',?=EREOF, the parties set their respective hands and seals hereto, intending
to be legally bound hereby.
WITNESS:
LESSOR:
Y;
%. F/_a
Y?
Daniel W. Johnson
/Toyde H. Tohn4on
LESSEE:
h?aymbnd E. Diehl
r
Genevieve A. Diel11
WITNESS:
?- I
7- 7
I I's
l
•` it ,3
BEFORE THE ZONING HEARING BOARD OF SOUTH MIDDLETON TOWNSHIP
CUMBERLAND COUNTY, PENNSYLVANIA
In re: Raymond & Genevieve Diehl : Docket No. 06-15Z
401 Myers Road
Boiling Springs, PA 17007 : Variance from Section
: 601(7)(d)(ii) - Minimum
: Lot Frontage
PRESIDING: MARY ANN TAYLOR, CHAIRMAN; SECRETARY; PAUL HEISH.MAN,
MEMBER; GENE HEYMAN, MEMBER
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FINDINGS OF FACT
1. The applicants are Raymond and Genevieve Diehl, 401 Myers Road, Boiling Springs,
PA 17007, owners of property at 1538 Holly Pike, Carlisle, PA 17013 in the Agricultural-
Conservation (A-C) District. The applicants seek a variance from the ordinance requirement that
all new subdivided lots front on a public road in order to allow them to subdivide a lot which fronts
on a private road or right-of-way. Robert Saidis, Esq., Suzanne C. Hixenbaugh, Esq., along with
Pamela Fisher, of Dawood Engineering, Steven Hoffman and the applicant, Raymond Diehl,
appeared at the hearings on behalf of the applicants. John McAdoo appeared at the hearings on his
own behalf and in objection to the application.
2. A hearing was held on Monday, August 7, 2006 at 5:00 P.M., and continued to
September 11, 2006 at the South Middleton Township Municipal Building, 520 Park Drive, Boiling
Springs, PA 17007, with all notices provided as required by law.
3. In 1995, Daniel and Joyce Johnson subdivided their farm into two lots. The
subdivision was subject to the 1989 Township Zoning Ordinance, which required a 250 ft. road
frontage on a collector street, which had public road frontage along Rockledge Drive (T-478), but
which had historically been accessed over a right-of-way from the State Road 34, a/k/a the Holly
Pike, known as Teitrick Lane. Lot No. 1 contains about 50 acres and maintains road frontage along
-1-
Exhibit "B"
. ,
Rockledge Drive. In order that Lot No. 2, which had the the farmstead and outbuildings along
Tietrick Land, maintain public road frontage, Lot No. 2 also contained a 250 ft. wide and 2500 ft.
long strip of land running along the southern boundary of Lot No. 1 to front on the public road
Rockledge Drive. The 250 ft. by 2500 ft. strip of land is referred to as proposed Lot No. 3, and is
being subdivided from Lot No. 2. This was done because even though the farmstead and outbuildings
were accessed by Teitrick Lane, the lot nonetheless was required to front on a public road. The
applicants purchased Lot No. 1 with a lease and option to purchase proposed Lot No. 3 (Applicants'
Exhibit No. 2) which allows them to require the conveyance of the as yet unsubdivided 250 ft. wide
strip of land for no consideration at any time during the lease period of 29 years.
4. The applicants assert that the intent of the parties at the time of the subdivision in
1995 and conveyance of Lot No. 1(including the lease of proposed Lot No. 3 at that time) was that
the applicants were to acquire proposed Lot No. 3, but did not do so immediately so as to permit Lot
No. 2, which is currently the McAdoo property to have required public road frontage under the 1989
zoning ordinance. Applicants paid for the strip of land, Lot No. 3, and continued to use it as part of
their own farming operations up to the last couple of years.
5. The applicants now wish to exercise their option to purchase and to have this strip
of land, now identified as Lot No. 3, conveyed to them. In order for this occur, the strip of land has
to be severed from the balance of the parcel, identified as Lot No 2, which would leave Lot No. 2,
landlocked unless Lot No. 2 is legally allowed to front on Teitrick Lane. Because Lot No. 2 with
the removal of Lot No. 3 is technically a new lot, the applicants are requesting a variance from the
ordinance requirement that all new subdivided lots front on a public road in order to allow Lot No.
2 to be separated from the strip of land so that the strip of land can then be attached to Lot No. 1,
all as contemplated by the prior subdivision and lease and option to purchase. The result would
have the original Diehl property Lot No. 1 with the strip of land, Lot No. 3 fronting on Rockledge
Drive and the farmstead and outbuildings on Lot No. 2 accessed only by Teitrick Lane.
-2-
I .
6. Teitrick Lane is now a continuous U-shaped road which has two accesses to the Holly
Pike or State Route 34. The northern access was opened before 1949 and completed with the
southern access in the last several decades. Lot No. 2, the McAdoo property, was formerly owned
by Johnson when the subdivision in 1995 occurred. Mr. Johnson sold it to Mr. McAdoo. The
property has over 200 feet of frontage on Teitrick Lane and has been historically accessed by
Teitrick Lane. Furthermore, Teitrick Lane provides access for 5 or 6 other private residences.
7. Applicants argue that because the private Teitrick Lane has other residences that use
it for access, the public policy purpose in requiring new residences to front on a public road, to
ensure access by fire, police and other public services and to provide reliable access to and from the
property, renders the need for public road access unnecessary.
8. The owner of Lot No. 2 and his predecessors in title have always used the private
Teitrick Lane to access the farmstead. They have never used the 250 ft. wide strip of land to access
their property. Evidence indicates that the 250 ft. wide strip of land would have to be improved to
provide a vehicular access from the Rockledge Drive to the farmstead on Lot No. 2. Applicants
argue that it would be impractical to improve the 250 ft. wide strip of land for a distance of 2500
feet to provide access to the McAdoo residence when Teitrick Lane is readily available for use.
Teitrick Lane has been in open and continuous use as an access road long enough to consider it a
private right-of-way but not a public road.
9. In 1999, the Township Zoning Ordinance was amended to reduce the required lot
frontage for new lots to 100 ft. and to provide that frontage for new lots could occur not only on a
public road but also on a Rural Residential Lane as defined in Section 720 of the Subdivision and
Land Development Ordinance. 601(7)(d)(ii)&(x).
10. Though the applicants have a lease and option to purchase the 250 ft. wide strip of
land, legal title to the property remains in the owner of Lot No. 2, John McAdoo, 1538 Holly Pike.
John McAdoo, owner of Lot No. 2, and the legal title holder to proposed Lot No. 3, the 250 ft. wide
strip of land, appeared at the hearing and testified in opposition to the grant of the variance.
-3-
11. Mr. McAdoo testified that when he bought the property he was aware of the issues
concerning the existing lease with option to purchase. Mr. McAdoo would refer inquiries to Mr.
Diehl about using the strip of land to access other developments. Mr.. McAdoo testified that the
Lease with Option to purchase grants the Diehls exclusive use and that he, Mr. McAdoo, never went
on the strip of land. Mr. McAdoo testified that the county assessment office taxes him on the entire
parcel and that he paid the taxes on the entire parcel. He further testified that utility companies ask
for his permission to use the frontage on Rockledge Lane. Mr. McAdoo's deed describes the entire
parcel in one description. Mr. McAdoo's position is that his road frontage is on Rockledge Lane
and that the Township had made continuous representations to that effect.
12. Randy Diehl, the applicant's son, appeared at the hearing and testified that the Lease
with Option to purchase requires the Diehls to pay the taxes, but that Mr. McAdoo never made claim
for the payment of taxes that he said he made on Lot No. 3.
CONCLUSIONS OF LAW
1. Section 601(d)(1)(7) requires that all new lots have a width of 100 feet and front on
a public road.
2. The Board finds that Teitrick Lane has never been approved by the Township as a
Rural Residential Road as defined by the Zoning Ordinance under Section 720. Teitrick Lane could
not qualify as a Rural Residential Lane without modifications from Section 720. Teitrick Lane is
a private right-of-way and not a public road adopted or maintained by the Township.
3. The lease with option to purchase did not create a subdivision, but "divided-in-fact"
the land in question. The equitable title of the purchasers, the Diehls, relates back to the date of the
option and lease. The exercise of the option does not, as a matter of law, create a subdivision, under
the MPC, and compliance with the Township ordinances, at the time of the exercise of the option,
is necessary to compel the Township to subdivide the property as determined by the option. Guido
-4-
v. Sandy Township, 880 A.2d 1220 (Pa. 2005). Accordingly, a variance is required to create a new
lot, Lot No. 2, which does not directly access a public road.
4. The subdivision of the properties as determined by the option, creates a selling lot
that no longer fronts on a public road as required by Ordinance Section 601(d)(1)(7). Because they
have a legal right to exercise the option to purchase, the Diehls have standing to argue that the
residual lot No. 2, owned by the McAdoos, is entitled to a variance to front on the private road,
Teitrick Lane, so as to allow Diehls to exercise the option and purchase Lot No. 1.
5. The Board can find no authority that it has the power to grant a variance to the
McAdoo property, where the McAdoos are not applicants and object to the grant of the variance.
6. Pursuant to Section 2307 of the Zoning Ordinance, the Board finds that a variance has
not been proved.
The Board finds that:
a. There are unique physical circumstances or conditions in connection with the lot;
in particular, the McAdoo property was developed and accessed by a private right-of-way when it
was subdivided.
b. The applicants cannot develop the property in strict conformity with the
provisions of the existing Zoning Ordinance, such that an authorization of a variance is necessary
to enable the reasonable use of the property; that is, the variance is necessary to carry out all of the
terms of the Lease with Option to purchase;
C. The applicants unnecessary hardship is self-created. Applicant participated
in the legal arrangement to have part of the land he purchased placed under the Lease and Option,
taking the risk that Township Ordinances would not allow the subdivision at a later date.
Furthermore, because the Ordinance reduces the required lot frontage on a public road to 100 ft.,
applicants can require the McAdoos to convey at least a 150 feet wide strip of land without need for
a variance, since the remainder would be in accordance with Township ordinance requirements.
-5-
d. The variance will not alter the essential character of the neighborhood or
district in which the property is located.
e. The variance does represent the minimum necessary to afford relief to the
applicant.
DECISION
On a motion by the Board (Mrs. Taylor moving and Mr. Heishman seconding) to deny the
grant of a variance as requested, the motion to deny passed with 3 votes in favor and no votes
against.
SOUTH MIDDLETON TOWNSHIP
ZONING HEARING BOARD
Y
Date Michael Landis, Secretary
ANY PERSON AGGRIEVED BY THE DECISION OF THE SOUTH MIDDLETON
TOWNSHIP ZONING HEARING BOARD MAY APPEAL TO THE COURT OF COMMON
PLEAS OF CUMBERLAND COUNTY. THE APPEAL MUST BE FILED WITHIN 30 DAYS
FROM THE DATE OF THE SIGNING OF THESE FINDINGS OF FACT AND
CONCLUSIONS OF LAW.
-6-
OCT 0 1 2007
NATHAN C. WOLF
PHONE
717-241-4436
WOLF SQL WOLF
ATTORNEYS AT LAW
10 WEST HIGH STREET STAGY B. WOLF
CARLISLE, PENNSYLVANIA 17013
wolfandwolf0- embargmail.com FACSIMILE
717-241-4437
October 1, 2007
Robert C. Saidis, Esquire
Saidis Flower & Lindsay, P.C.
26 West High Street
Carlisle, PA 17013
Re: McAdoo v. Diehl
Dear Mr. Saidis:
I have been retained by the McAdoo household concerning the property dispute with your
clients, the Diehls.
I am preliminarily reviewing the information provided to me by my client and have been
asked to correspond with you concerning the status of the subdivision plan which you are
submitting to South Middleton Township, which land is the subject of an option agreement from
1995.
From what my client has indicated to me thus far, his purchase of the property was subject
to this option agreement which came into existence after the Diehls had purchased a portion of the
original farm from his predecessor in title, the Johnson. After the purchase, I suppose that the
subdivision could not be completed as originally planned because of a frontage requirement under
the then current zoning ordinance which applied to the Johnson' retained parcel that otherwise
lacks any road frontage on a public street.
I understand that the Diehls now wish to exercise their option to purchase the property, and
there has been a dispute as to what would be adequate consideration. I am at a loss for where the
consideration is stated in the agreement, but will not belabor that point right now.
I know that you have communicated with South Middleton township with a revised
subdivision plan that attempts to establish the required lot frontage measured at the setback line for
the AC Zone (i.e. 100' measured at 50'). It is difficult to tell how wide my client's access would
remain if your proposed subdivision occurs, but it does not appear to be much.
I have reviewed this matter with my client and am authorized to present you with a proposal
designed to satisfy your clients' needs, while also ensuring my client has sufficient access to his
property from Rockledge Drive, and ensuring that adequate compensation is provided for his
cooperation in this process.
My client submits the following proposal for the Diehl's consideration:
(1) the McAdoo's will receive the sum of $15,000,
Exhibit "C"
Wolf & Wolf
Saidis
October 1, 2007
Page two
(2) the McAdoo's will retain a 50' access from rear of the provide frontage measured at the
setback line to the eastern border of the Diehl's property, which they will be entitled to
use without restriction, provided such use does not interfere with the Diehl's use of their
property,
(3) the McAdoo's will agree to abandon the ten foot (10) right-of-way across the northern
boundary of Existing Lot 2; and,
(4) the McAdoo's will cooperate in securing all required municipal approvals, but any
associated costs shall continue to be borne by the Diehls.
I understand that you previously reached a deadlock with my client, and assure you that Mr.
McAdoo is neither an unreasonable person, nor is he inclined to engage in a protracted resolution of
this matter. Nevertheless, there is certainly no requirement in the option agreement for my client to
cooperate in obtaining subdivision approval, and he will maintain his opposition, if necessary.
That being said, this letter shall also serve to fulfill the notice requirement set forth in
paragraph 8 of the agreement dated May 18, 1995, concerning default. Since my clients' purchase of
the property, and for any period since the execution of the agreement, neither they nor the
Johnson's have received the sums due under paragraph 5, concerning prorated taxes levied against
the property. Moreover, my clients have no evidence to suggest that the Diehl's have ever carried
the liability coverage as required in paragraph 6.
I believe that the Diehl's have had adequate notice of their failure to comply with at least
paragraph 5, because the failure to pay rent was raised during the Zoning Hearing Board hearing in
South Middleton Township on August 7, 2006, and this fact is memorialized in paragraph 12 (page
4) of the findings of fact of the Board.
If this default is not cured within the time proscribed by the agreement, we shall invoke the
right to cancel and terminate the Lease, and take any other action provided for therein.
In the meanwhile, please be aware that I have notified South Middleton Township of my
representation of the McAdoo's, explained that I am engaging you in the process of reaching a
resolution of the dispute between our clients and requested that they defer accepting the subdivision
plan until an agreement can be reached.
Ultimately, we would prefer to see this matter resolved by amicable agreement, but we are
prepared to take any action deemed necessary to enforce their rights.
I look forward to hearing from you.
Very ours,
wolf
cc: Mr. & Mrs. John McAdoo
JOHN E. SLIDE
ROBERT C. SAIDIS
JAMES D. FLOWER, JR.
CAROL J. LINDSAY
JOHN B. LAMPI
MICHAEL L. SOLOMON
GEORGE F. DOUGLAS, III
DEAN E. REYNOSA
THOMAS E. FLOWER
MARYLOU MATAS
SUZANNE C. HIXENBAUGH
LAW OFFICES
SAIDIS, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
EMAIL: attorney Civsfl-lawxorn
www. sfl-law.com
October 3, 2007
Nathan C. Wolf, Esq.
Wolf & Wolf
10 West High Street
Carlisle, PA 17013
Dear Nate:
Re: McAdoo/Diehl
CAMP HILL OFFICE
2109 MARKET STREET
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
REPLY TO CARLISLE
By reason of the "Ground Lease/Option to Purchase", the Diehls
are not in default until such time as they receive 20 days
written notice to cure.
The Diehls expressed to Mr. McAdoo, through me, at the Zoning
Hearing Board that if he would calculate the amount of taxes
which he claims are due and payable, the Diehls would promptly
address that issue. Until your letter of October 1, 2007,
there has never been a demand for payment. As the recipient of
the tax bills, Mr. McAdoo must calculate the amount due on the
taxes.
I look forward to the calculation of the amounts your client
contends the Diehls owe so we can promptly verify and pay that
amount. Until there is an actual demand for a stated sum, the
notice you have provided is insufficient. Please prepare the
necessary calculation and submit the same at your earliest
convenience.
With regard to the insurance, the insurance is currently in
effect and a copy of the declaration page is attached. The
location is 47 on the Policy.
Although I have not had an opportunity to discuss your
proposal, in detail, with the Diehls, I have, over the course
of months, discussed this matter with Mr. McAdoo in an attempt
Exhibit "D"
? f
Nathan C. Wolf, Esq.
October 3, 2007
Page 2
to reach an amicable settlement.
The one, main problem, which I see, is the Diehls have expended
the funds to prepare and submit a subdivision plan. You are
proposing a 50' access for Mr. McAdoo. The subdivision plan
proposes 251. If you have visited the tract, you will see that
access along the southern boundary from Rockledge Drive to the
McAdoo property is virtually impossible due to the terrain.
In the mean time, if you would like to sit down to discuss this
matter, please advise. We are not prepared to ask the Township
to defer action on the Plan. Mr. McAdoo and I have discussed
settlement since January of 2007. If you and your client want
to get this resolved, we should meet promptly.
Very truly yours,
S, SLOWER & LINDSAY
AI,DI?`
t 1/?
?
U U
Robert C. Saidis
RCS/pm
Enclosure
CC: Mr. and Mrs. Raymond Diehl
I
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WESTFIELD
RENEWAL
I N S U RA N C E FARM LIABILITY DECLARATIONS
A member of Westfield Group
Company providing coverage Westfield Insurance Company
Policy Number: FAB 3 289 805 WIC Account Number: 3770051997 A
Q ;
pp Named Insured and Mailing Address Agency 37-04184 Prod, 000
O? 1
RAYMOND DIEHL CARLISLE INSURANCE SERVICES
oD : GENEVIEVE DIEHL 1 VALLEY ST STE 101
401 MYERS RD
` CARLISLE PA 17013
.
BOILING SPRINGS PA 17007
Telephone 717-241-5995
Policy Period: 08/10/07 TO 08/10/08 at 12:01 A.M. Standard Time at your
mailing address shown above.
Description of Premises: See Schedule FD 70 Ol
LL
Farm Liability Coverages Limit of Insurance: Premium:
General Aggregate Limit(Coverages N, I & J) $ 11000,000 $ 494
Fire Damage Limit(Any One Fire) $ 500,000
Personal & Advertising Injury Limit
(Per Person or Organization) $ 5001000
.
i Medical Payments(Any One Person Limit) $ 51000
Each Occurrence Limit(Coverages N & J) $ 500,000
Pollution Liability-Limited Coverage
Aggregate Limit $ 5001000
Li
Optional Liability Coverages
FFL 912 All-Terrain Vehicle Coverage $ 26
Forms and Endorsements applicable to this coverage part:
FFL902 1006*, FL1070 1102 FFL900 1006*, FFL912 1006*
FFL921 0504 , FFL922 1006*, FL1022 ,
0903 FL1001 0994 ,
FLO116 0994 IL0021 0702 , FFL933 1006*, FF1934 0106*,
YFL935 0106*.
P AGE 01 OF 01 FD 70 10 [01-04) 07/02/07 nr,FNT MPV
%
POLICY
PACKAGE
E S T F I E L D FARM
YY
MENDED
A
I N S U RA N C E COMMON POLICY DECLARATIONS
-*-., rk
A member of Westfield Groups"
Company providing coverage Westfield Insurance Company
Policy Number: FAH 3 289 805 WIC Account Number: 3770051997 A
Named Insured and Mailing Address Agency 37-04184 Prod. 000
RAYMOND DIEHL CARLISLE INSURANCE SERVICES
GENEVIEVE DIEHL 1 VALLEY ST STE 101
401 MYERS RD CARLISLE PA 17013-3193
BOILING SPRINGS PA 17007
Telephone 717-241-5995
Policy Period: 08/10/07 TO 08/10/08 at 12:01 A.M. Standard Time at your
mailing address shown above.
KK Effective 0E/10/07 this Common Policy declarations amends all prior KK
xx Common Policy declarations and endorses this policy as shown below. MR
In return for the payment of the premium, and subject to all terms of this
policy, we agree with you to provide the insurance as stated in this policy.
Insurance at the described premises applies only for coverage for which a
limit of insurance is shown. Optional coverages are applicable only when
entries are made in the schedules.
THE COVERAGE PARTS BELOW HAVE SEEN ENDORSED AS FOLLOWS:
PREMIUM
COMMERCIAL FARM COVERAGE PART ENDORSEMENT Additional $ 0.00
NET ADDITIONAL PREMIUM $ 0.00
LOCATION CHANGES
1. LOCATION 3 CHANGED
-- ACREAGE FROM 120 TO 85
2. LOCATION 5 CHANGED
-- TOWNSHIP FROM BLANK TO MIDDLETON
-- DESCRIPTION CHANGED FROM
624 E SPRINGVILLE RD S MIDDLWTON TWP
CUMBERLAND CO PA
TO
ZIMMERMAN FARM - 624 E SPRINGVILLE CUMBERLAND
CO PA
3. LOCATION 8 CHANGED
-- ACREAGE FROM 100 TO 85
4. LOCATION 9 CHANGED
-- ACREAGE FROM 15 TO 6
AGE 01 OF 02 Fn n nn (nl-n41 ne.?i.n? ..nT.......
-, --.- -, wnawanN?
ED POLICY
E S T F I E L D FARM
'?'..•
YY
AMEND
COMMON POLICY DECLARATIONS
INSURANCE (Continued)
A member of Westfield Groups"
Company providing coverage Westfield Insurance Company
Policy Number: FAB 3 289 805 WIC Account Number: 3770051997 A
Named Insured and Nailing Address Apene 37-04184 Prod. 000
RAYMOND DIEHL CARLISLE INSURANCE SERVICES
YERS RDEHL
401E RL
SLE
170
3
M I
1
-3193
CA
PA
BOILING SPRINGS PA 17007
Telephone 717-241-5995
Policy Period: 08/10/07 TO 08/10/08 at 12:01 A.M. Standard Time at your
mailing address shown above.
KK Effective 08/10/07 this Common Policy declarations amends all prior xx
xx Common Policy declarations and endorses this policy as shown below. xx
-- TOWNSHIP FROM BLANK TO MIDDLETON
-- DESCRIPTION CHANGED FROM
P
NS LINDSEY RD S MIDDLETON TWP CUMBERLAND CO
A
TO
LINDSEY ACRES - S/S LINDSEY RD S CUMBERLAND
CO PA
5. LOCATION 10 CHANGED
-- ACREAGE FROM 70 TO 72
6. LOCATION 15 ADDED
-- ACREAGE IS 3
-- NUMBER OF DWELLINGS IS 0
-- ZIP CODE IS 17007
-- CITY IS BOILING SPRINGS
-- COUNTY IS CUMBERLAND
-- STATE IS PENNSYLVANIA
-- TOWNSHIP IS MONROE
PROTECTION CLASS IS 09
E
P
S
1/2 ACRE EACH OFF OF NOSS FARM
LOTS @
6
BLDG
7. LOCATION 16 ADDED
-- ACREAGE IS 15
-- NUMBER OF DWELLINGS IS 0
-- ZIP CODE IS 17007
-- CITY IS BOILING SPRINGS
-- COUNTY IS CUMBERLAND
-- STATE IS PENNSYLVANIA
-- TOWNSHIP IS MIDDLETON
-- PROTECTION CLASS IS 09
-- DESCRIPTION IS
MCADOO FARM - ROCKLEDGE DR - ADJ TO JOHNSON
FARM
LIABILITY COVERAGE PART ENDORSEMENT
1. CHANGED FARM LIABILITY COVERAGE PART
-- ACREAGE FROM 792 TO 753
** This endorsement changes your policy. Please
attach it to your original policy. **
Forms and Endorseaents applicable to all coverage parts:
FD7000 0104*, FD 001 0104 FD7002 0104 , FD7004 0104 FD7006 0104
,
FD7007 0104 FD7010 0104 IL0172 0702 IL0246 0702 IL0910 0702
,
IL0017 1198 , FFP170 0104 FFL970 0104 .
COUNTERSIGNED: BY
Date Authorized Representative
AGE 02 OF 02 Fn n nn rni-M nom Lzn7 nCTL`TLIA1
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i.
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-- .
RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL, Husband
and Wife,
Plaintiffs
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION
: IN MANDAMUS -EQUITY
TOM FALEY, RON REEDER,
RICK REIGHARD, BRYAN GEMBUSIA
and JIM BAKER, Supervisors of
South Middleton Township, and
JOHN MCADOO and NO. 08-1234 Civil Term
CATHY MCADOO, Husband and Wife,
Defendants
PRAECIPE
FOR LIS PENDENS
TO THE PROTHONOTARY:
Please index this Praecipe as a lis pendens with regard to the real estate known and
numbered as 1538 Holly Pike, South Middleton Township, Cumberland County, Pennsylvania
owned by Defendants, John and Cathy McAdoo, husband and wife, and more fully described in
the deed recorded in the office of the Recorder of Deeds of Cumberland County in Deed Book
238, Page 1012.
The address of the parties in this matter are as follows:
Plaintiffs: Raymond E. and Genevieve A. Diehl
401 Myers Road
Boiling Springs, PA 17007
Defendants: John and Cathy McAdoo
1538 Holly Pike
Carlisle, PA 17015
Tom Faley, Ron Reeder, Rick Reighard, Bryan Gembusia, Jim Baker
South Middleton Township Supervisors
520 Park Drive
Boiling Springs, PA 17007
SAMIS,
FLOWER &
LINDSAY
26 West High Street
Carlisle, PA
Dated:
Res y mitted,
.f
Robgrt C. Saidis, Esquire
Attorney for Plaintiffs
Supreme Court ID #21458
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
717-243-6222
a*- -.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Praecipe for Lis Pendens was served this date via
United States Mail, postage prepaid, addressed as follows:
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Richard P. Mislitsky, Esq.
I West High Street, Suite 208
P. O. Box 1290
Carlisle, PA 17013
SAMIS,
FLOWER &
LINDSAY
26 West High Street
Carlisle, PA
Dated: 5' ? f
SAIDIS, FLOWER & LINDSAY
zll? I ?'
Phylli McCoy
2
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RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL, Husband
and Wife,
Plaintiffs
V.
TOM FALEY, RON REEDER,
RICK REIGHARD, BRYAN GEMBUSIA
and JIM BAKER, Supervisors of
South Middleton Township, and
JOHN MCADOO and
CATHY MCADOO, Husband and Wife,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION
: IN MANDAMUS -EQUITY
NO. 08-1234 Civil Term
STIPULATION
The undersigned, attorneys for the respective parties in the above captioned matter hereby stipulate
as follows:
1. The individual Supervisors of South Middleton Township, Tom Faley, Ron Reeder, Rick
Reighard, Bryan Gembusia and Jim Baker are removed as Defendants.
2. Pursuant to Pa.R.C.P.§2102, the action of the Plaintiffs shall proceed against South
Middleton Township.
3. The caption for all future pleadings in this matter shall be:
SA MILS,
FW)WR &
LINDSAY
26 West High Street
Carlisle, PA
RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL, Husband
and Wife,
Plaintiffs
V.
SOUTH MIDDLETON TOWNSHIP, and
JOHN MCADOO and
CATHY MCADOO, Husband and Wife,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
IN MANDAMUS -EQUITY
NO. 08-1234 Civil Term
IN WITNESS WHEREOF, the counsel has executed this S ation his 11"day of June 2008.
11 ` R ert C. Saidis, Esquire
Atto for Plaintiff-
Richard P. Mislitsky, Esquire
Attorney for South Middleton Twp.
atha squire
Attorn r McAdoo
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
RAYMOND E. DIEHL and GENEVIEVE A. DIEHL, Husband and Wife,
Plaintiffs
vs.
SOUTH MIDDLETON TOWNSHIP, and
JOHN MCAD00 and CATHY MCAD00, Husband and Wife,
Defendants
No. 08-1234 Civil Term
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
Motion for Judgment on the Pleadings
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Robert C. Saidis, Esquire 26 West High Street, Carlisle, PA 17013
(Name and Address)
(b) for defendants:
Nathan C. Wolf, Esquire 10 W. High St., Carlisle, PA 17013, for McAdoo$
(Name and Address)
Richard P. Mislitsky, Esquire One w. High St., Suite 208, Carlisle, PA 17013,
for South Middleton Township
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
eptember 3, 2008
Sign
Nathan C. Wolf
Print your name
Defendant McAdoos
Attorney for
Date: U7?
INSTRUC ON
1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case Is relisted.
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ril 7?
RAYMOND E. DIEHL and GENEVIEVE : IN THE COURT OF COMMON PLEAS OF
A. DIEHL, Husband and Wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
V. : No: 2008-1234 Civil Term
SOUTH MIDDLETON TOWNSHIP, and : CIVIL ACTION -
: IN MANDAMUS AND EQUITY
JOHN MCADOO and CATHY MCADOO,
Husband and Wife,
Defendants
MOTION FOR TUDGMENT ON THE PLEADINGS AS TO
PLAINTIFFS' COMPLAINT IN EQUITY
AGAINST DEFENDANTS MCADOO AND
THE COUNTERCLAIM OF DEFENDANTS' MCADOO
AGAINST PLAINTIFF
AND NOW COME the defendants, John McAdoo and Cathy McAdoo, by and thmugh
their counsel, Wolf & Wolf, Attorneys at Law, and present this Motion for judgment on the
Pleadings as to the Plaintiffs' Complaint in Equity Against Defendants McAdoo and as to the
Counterclaim of Defendants' McAdoo against Plaintiffs, and in support thereof state the following:
1. This action was commenced by the filing of a complaint on or about February 25,
2008, containing one count in mandamus against South Middleton Township and one count in
equity against Defendants McAdoo.
2. This motion applies to only Count II of the Complaint, the action in equity against
Defendants McAdoo as well as the counter-claim filed thereto by Defendants McAdoo.
3. The action in equity involves the interpretation of a contract for the lease and an
option to purchase real property executed by Plaintiffs and the McAdoos' predecessor in title.
4. The contract at issue was attached to the Complaint as Exhibit A and is therefore
part of the record.
5. Defendants' McAdoo filed an Answer, New Matter and Counterclaim on or about
March 24, 2008, raising several defenses to the claims of the Plaintiffs. However, said defenses did
not create genuine issues of material fact, but rather require the Court's interpretation of the plain
language of the contract.
6. The Plaintiffs filed a Reply, Answer to New Matter and Answer to Counterclaim on
or about April 16, 2008. However, said Reply and Answer did not create genuine issues of material
fact, but continue to require the Court's interpretation of the plain language of the contract.
7. The pleadings are closed and Defendants' McAdoo submit that based thereon, even
considering all well plead facts in favor of the Plaintiffs, that the Defendants' McAdoo are still
entitled to judgment as a matter of law.
8. The Plaintiffs' are not entitled to any relief against Defendants' McAdoo based upon
the contents of the pleadings.
9. Granting the relief in the foregoing motion for judgment on the pleadings would
serve the interests of justice and judicial economy, as the Plaintiffs cannot prevail at trial based upon
the state of the record.
10. This motion is based on the records, papers, and pleadings in this action and is made
pursuant to Pa.R.C.P. 1034.
11. No prior rulings have occurred in this matter and no prior judge has been assigned
hereto.
WHEREFORE, Defendants McAdoo respectfully pray that this Honorable Court issue an order in
favor of Defendants McAdoo as to the instant motion for judgment on the pleadings as to Count II
of the Plaintiff's Complaint and the Counterclaim filed thereto by Defendants McAdoo and enter
judgment against Plaintiff, awarding Defendants McAdoo the costs of this suit, reasonable attorneys
fees, and issuing declaratory judgment holding that the Option to Purchase provision of the
agreement is void for lack of consideration, or, alternatively, that the entire agreement is terminated
due to the default by the Plaintiffs in their failure to pay the assessed taxes, and the lack of
2
consideration of the Option to Purchase, along with any additional relief that the Court may deem
appropriate and just.
Respectfully submitted,
WOLF & WOLF
r
Date: August 14, 2008 By:
athan C. Wo squire
Supreme C ID No. 87380
10 West High Street
Carlisle, PA 17013
Attorney for Defendants McAdoo
3
RAYMOND E. DIEHL and GENEVIEVE : IN THE COURT OF COMMON PLEAS OF
A. DIEHL, Husband and Wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
V.
: No: 2008-1234 Civil Term
SOUTH MIDDLETON TOWNSHIP, and : CIVIL ACTION -
: IN MANDAMUS AND EQUITY
JOHN MCADOO and CATHY MCADOO,
Husband and Wife,
Defendants
CERTIFICATE OF SERVICE
I, Nathan C. Wolf, Esquire, certify that a copy of the foregoing Motion forJudgment on the
Pleadings has been served on this date by hand delivery upon the following individuals:
Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiff
Richard P. Mislitsky, Esquire
1 West High Street
Carlisle, PA 17013
Solicitor for Defendant Township
Respectfully submitted,
WOLF & WOLF
Dated: August, 2008
BY: -°'
a an C. ?-
10 West igSreet
Carlisle, Esquire
PA 17013
Supreme Court I.D. No. 87380
(717) 241-4436
Attorneys for Defendants McAdoo
4
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RAYMOND E. DIEHL and GENEVIEVE IN THE COURT OF COMMON PLEAS OF
DIEHL, Husband and Wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. NO. 2008-1234 Civil Term
SOUTH MIDDLETON TOWNSHIP and CIVIL ACTION -
JOHN MCADOO and CATHY MCADOO, IN MANDAMUS AND EQUITY
Husband and Wife, .
Defendants
MOTION FOR SANCTIONS
AND NOW COMES Raymond E. Diehl and Genevieve Diehl through
their attorneys, Saidis, Flower & Lindsay and move Your
Honorable Court as follows:
1. The Plaintiffs in the above captioned action are
Raymond E. Diehl and Genevieve A. Diehl, husband and wife,
adult individuals who reside at 401 Myers Road, Boiling
Springs, South Middleton Township, Pennsylvania 17007
(hereinafter "Diehls").
2. One of the Defendants in the above captioned matter
SAMIS,
FLOWER &
LINDSAY
26 West High Street
Carlisle, PA
is South Middleton Township, a township of the Second Class
with its principal place of business at 520 Park Drive, Boiling
Springs, South Middleton Township, Pennsylvania 17007
(hereinafter "South Middleton Township").
3. Richard P. Mislitsky is a licensed attorney at law in
the Commonwealth of Pennsylvania and all times relevant hereto,
the Solicitor for South Middleton Township.
4. On August 19, 2008, Diehls mailed a Notice of Taking
Deposition on Oral Examination Under Pa.R.C.P.N0.4007.1 to
Richard P. Mislitsky, Esq. A copy of which is attached hereto,
made a part hereof and marked Exhibit "A"
5. On September 5, 2008, the attorney for the Diehls
received a letter from Richard P. Mislitsky that he refused to
appear for the deposition.
6. The above captioned matter arises by reason of a
Final Minor Subdivision Plan submitted by Diehls to South
Middleton Township, which was considered by South Middleton
Township on February 14, 2008. A copy of the minutes, in their
entirety is attached hereto, made a part hereof and marked
Exhibit "B".
7. After the Diehls left the meeting of the South
S UDIS,
LINDSAY
26 West High Street
Carlisle, PA
Middleton Township Board of Supervisors on February 14, 2008,
the Supervisors returned to the Subdivision Plan for additional
consideration.
8. The motion that occurred outside the presence of the
interested parties is as follows:
"Bryan said, I'll make a motion to approve plan
#07-23 subject to post-approval items. Brian
said, no - #07-15. Bryan said, sorry #07-15
subject to post-approval items, staff comments,
bantering, 2 signatures & anything else the
Solicitor deems important to our case. Mr.
Mislitsky said, wow, I feel important. Rick
asked, do I have a second to that? Ron seconded.
Rick said, all those in favor please indicate by
saying aye. Ayes. Rick asked, opposed? None.
4-0." (Exhibit B, page 9, emphasis added)
9. The purpose of the Deposition is to elicit the facts
and circumstances surrounding the action of South Middleton
Township on February 14, 2008, the motion which was passed
outside the presence of the parties, the meaning of the above-
quoted motion, together with any and all other pertinent
matters.
10. Neither South Middleton Township nor Richard P.
Mislitsky has requested a Protective Order.
11. Upon the advise of the Solicitor, South Middleton
Township elected to cancel the depositions unilaterally without
seeking court approval.
12. Pa.R.C.P.4019. Sanctions provides, in part, as
follows:
(a)(1) The court may, on motion, make an
appropriate order if:
(v) a party or deponent, or an officer or
managing agent of a party or deponent, induces
a witness not to appear;
(viii) a party or person otherwise fails to
make discovery or to obey an order of court
respecting discovery.
SAIDIS,
FLOWER &
LNDSAY
A1'[OFXEYSK[ IAW
26 West High Street
Carlisle, PA
(2) A failure to act described in
subdivision (a)(1) may not be excused on the ground
that the discovery sought is objectionable unless
the party failing to act has filed an appropriate
objection or has applied for a protective order.
13. Pursuant to Pa.R.C.P.4019, the Diehls request the
following relief:
(1) An Order directing the oral deposition of Richard P.
Mislitsky at a time and place convenient to the Diehls.
(2) An Order directing South Middleton Township and
Richard P. Mislitsky, Esq. to pay counsel fees incurred
for this Motion for Sanctions;
(3) An Order entered pursuant to the Professional Rules
of Professional Conduct 3.7, directing that the Township
Solicitor, Richard P. Mislitsky, is prohibited from acting
as an advocate at trial in the above captioned matter.
(4) An Order holding South Middleton Township and Richard
P. Mislitsky in contempt.
(5) Such other relief as Your Honorable Court determines
to be just and equitable.
September 10, 2008
SAIDIS,
FWNWR&
LINDSAY
ATIORN615-AT•uw
26 West High Street
Carlisle, PA
Respectfully submitted,
Robert C. Saidis, Esquire
Attorney for Plaintiffs
Supreme Court ID #21458
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
717-243-6222
VERIFICATION
I verify that the statements made herein are true and
correct. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
DATED: 4- a. C,08 ?-
aymond Diehl
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Motion for Sanctions
was served this date via United States Mail, postage prepaid,
addressed as follows:
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Richard P. Mislitsky, Esq.
1 West High Street, Suite 208
P. O. Box 1290
Carlisle, PA 17013
Personally and as counsel for South Middleton Township
SAIDIS, FLOWER & LINDSAY
Dated: ID
P yllis MCCo
SAIDIS,
FLOWER &
LINDSAY
ATIORNMAT UP
26 West High Street
Carlisle, PA
ROBERT C. SAIDIS, ESQUIRE
Attorney-at-Law
26 West High Street
Carlisle, PA 17013
717-243-6222
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
CIVIL ACTION - LAW
RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL, Husband
and Wife,
Plaintiffs
V.
SOUTH MIDDLETON TOWNSHIP, and
JOHN MCADOO and
CATHY MCADOO, Husband and Wife,
Defendants
: NO. 08-1234 Civil Term
JURY TRIAL DEMANDED
NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION
UNDER Pa.R.C.P. NO. 4007.1
NOTICE IS HEREBY GIVEN that pursuant to Pennsylvania Rule of Civil Procedure
No. 4007. 1, the deposition of Richard P. Mislitsky will be taken on oral examination at 26 West
High Street; Carlisle, Pennsylvania on September 16, 2008, beginning at 10:00 am., and at any
and all adjournments thereof.
Date: August 19, 2008
"Robert C. Sails Esquire
Attorney LD. No. 21458
Attorney for Plaintiffs
MINUTES
SOUTH MIDDLETON TOWNSHIP BOARD OF SUPERVISORS
520 PARK DRIVE
BOILING SPRINGS, PA. 17007
FEBRUARY 14, 2008
PRESENT: RICK REIGHARD, BRYAN GEMBUSIA, TOM FALEY, RON REEDER, JIM
BAKER (Absent) - Supervisors, Barb Wilson - Manager, Jarrett Sweeney - Assistant Manager,
Richard Mislitksy - Solicitor, Brian O'Neill - Engineer, Tim Duerr - Zoning Officer, Sandy
Quickel - Secretary, Aaron Navarro, Ron Hamilton, Attorney Robert Saidis, Carol Sheffer,
Leonard Kuhn, Doug & Helen Gale, Attorney Jim Hughes, Bob Geist, John McAdoo, Lou
Capozzi, Charlie Mallios, Randy Diehl, Raymond Diehl, Andrew Mele, Gary Eichelberger,
Mark Juliana, Attorney Stacy Wolf, Linda Franz - "The Patriot News".
Chairman Reighard called the meeting to order at 6:00 p.m.
PLEDGE OF ALLEGIANCE:
Chairman Reighard led the audience in the pledge of allegiance.
MOMENT OF SILENCE:
A moment of silence was observed.
OPENING ANNOUNCEMENTS:
Chairman Reighard noted that the meeting is recorded & to turn off cell phones.
MINUTES: 01/24/08 Regular meeting
Tom made a motion to approve the minutes. Ron seconded, & the vote in favor was 3 to 0
(Bryan abstained due to being absent at this meeting).
#07-15 RAYMOND E. & GENEVIEVE A. DIEHL - Final Minor Subdivision:
The applicant proposes to subdivide an existing Lot 1 into Lot 1 & IA & join Lot IA with Lot 2.
The property is along Rockledge Drive. Attorney Robert Saidis, Attorney Stacy Wolt John
McAdoo, Raymond Diehl & Randy Diehl were present. Mr. Saidis said, as you recall, 2 weeks
ago, motion fiiled to approve it. It was 2-2, there was a deadlock. I sent out a letter suggesting
that, I think legally, & I'll refer to Rich, that it was done in 2 separate motions. One to approve
the plan withholding how many signatures, & the second one - how many signatures. That way
if either party would appeal your decision, I think it would minimize the Township's
involvement because that becomes a legal issue. But what we have here is a lot addition in the
A-C zone with no development planned. There is only 1 issue is how many signatures. Mr.
Baker voted against us last time because customent to Township is 2 signatures. I guess the only
acknowledge I can think of - my custom is to drive 65 mph when it is 55 mph, but that doesn't
make it legal. I think vie have given you adequate authority that the MPC allows 1 signature to
get this plan recorded, & we ask you to approve it that way based on 2 motions. Thank you.
Rick said, well Rich, I don't know -oh I'm sorry.
Ms. Wolf said, Members of the Board, I am here on behalf of Mr. McAdoo, if I may. Rick said,
yes you may. Members of the Boar ' here on behalf of Mr. McAdoo
Page 2 - Supervisors Minutes - 02/14/08
tonight. I am here in place of Nathan Wolf who was not able to be here tonight because he had
another commitment in Carlisle Borough. Members of the Board, I believe there are a few issues
that you need to consider. Number 1 - we believe the agreement entered into is void because it
lacks consideration. But, number 2, - even if the agreement were valid, the agreement provides
for an option on conveying the whole property, & if you take a look at the agreement, it is
actually in number 12 (Lessee's Option to Purchase) where it states that during the term of the
lease, provided the lessee is not in default, & provided that the premises may legally be conveyed
to lessee, lessee is granted an option to require conveyance of the premises to lessee for no
consideration. And, it specifically states there are requirements & conveyance of the premises.
And, if you flip to the first page of the agreement, number 1, where it defines premises. It says
that the premises are defined by all that certain tract of land consisting of approximately 250 feet
in width & extending along the southern boundary of Lot 2, etc. So, what we extend to you is
that the conveyance must be of the whole premises as contained within the agreement, not just a
part, & what the Diehls are suggesting is that only a part be conveyed so that subdivision may be
approved on just a part. This is directly contrary to what the provisions within the agreement
provides - that it must be a whole, not just a part. Also, I believe the Zoning Officer has already
determined that the entire premises can not be legally conveyed. According to the agreement,
not just a part can be conveyed, & according to the Zoning Officer's determination, the entire
parcel cannot be conveyed because of the setback requirement due to the frontage requirement.
Tom to Ms. Wolf, may I ask you a question? I just have to clear up in my own mind. The
Diehls had an agreement with the original owner, I believe, to lease that strip, & then it
progressed. But when Mr. McAdoo bought it from that individual - is that right? Ms. Wolf said
that is correct. Tom said, I thought that if I bought my home & there were like prior agreements,
I thought I was bound by them - like people said to check for liens on your property & go check
for commitments the property owner made before. I thought you were bound if you took over
the property - you were bound by those prior agreement - that's not true? Ms. Wolf said, well,
our argument is number 1 is that the agreement is actually void. That this agreement because the
original property owners & the Diehls was void because it does not have any consideration.
There is no consideration whatsoever for this agreement that was entered into. So, regardless of
how our client, Mr. McAdoo, takes it, it was void from its inception. That was what we were
saying as the first... Tom said, consideration of some form of a payment, like a $1.00 or
something - is that what you meant? Ms. Wolf said, some sort of consideration - a payment or
some sort of benefit that both parties could contract, there must be consideration of some sort,
yes. Rick to Mr. Mislitsky, let me ask a question. Are we, we are not here, I believe, to pass
judgment on this agreement. Mr. Mislitsky said no, well ...Rick said, in the content of this
agreement. Mr. Mislitsky said, Robert's argument is that his client is equitable owner, that's all
that is required. I think what Stacy is saying is that he is not equitable owner unless his client
buys the whole property. Bottom line, the issue is whether or not you are going to require
Robert's client & Stacy's client to sign the plans to be filed, or are you just going to let Robert's
clients sign the plans. I don't know how else to address it. Rick said, one of those two. Mr.
Mislitsky said, did I state that right? Ms. Wolf said yes, that is correct.
Ms. Wolf said, the other argument that I want to make relates to who has to be required to sign
this. If I can direct your attention to 501 of the SALDO (Subdivision and Land Development
Ordinance). This will specifically be Section 501 b (4) & b (7). Tom said, and the reason you are
before us rather than in court, both parties, is the signatures. Because we have jurisdiction on the
Page 3 - Supervisors Minutes - 02/14/08
plan, you deem us, rather than a court, the appropriate form for this matter to be resolved? Ms.
Wolf said, well, actually our argument is... Tom said, I'm asking. Ms. Wolf said, yeah, right.
Well, actually our argument is that the application for subdivision should not be before the
Board. It's not proper at this time to be before the Board. Mr. Mislitsky to Ms. Wolf, I'm sorry,
which section are you talking about? Ms. Wolf said, this is 501 b(4) & b(7) - okay. And what I
would like to say about those. Four & seven within the SALDO differentiate between the owners
of the property & the applicant. Number 4- with the names & addresses of the record owners, &
number 7 - the signatures of the owners certifying approval of the plan. So this differentiates
between the applicant & the owner, & Mr. McAdoo has not signed the application because he
does not approve of a partial conveyance of this property & without his signature, it cannot be
conveyed. Mr. Saidis said, in the memo I gave you, your ordinance cannot over-rule the MPC.
The MPC provides the landowner (inaudible). Every time we come back we have a new issue.
Two weeks ago, they had to have access to Rockledge Drive. Now, its there is no consideration.
And then its what's the premises. I agree with Rich. I don't think any of those are your decision
- we can fight with them in court about those things. That's why I'm suggesting 2 motions. If
you do the one and approve the plan, then whoever is going to fight isn't going to drag you in on
these other issues. The second one is who has to sign the plan. Whoever has to sign the plan, I
believe from a legal interpretation is a question of law, & it's going to minimize anything the
Township gets involved with. But what I gave you says what is required. It's specifically in
there from the MPC. I don't think there is any question that this qualifies. The lessee, if he is
authorized, under the lease to exercise the right to the landowner. And the landowner is the
applicant. They have been for 29 years for one dollar rent (inaudible). I don't think the
Township should get involved - there's m need to get involved. Rick said, I recall from the last
meeting that you (to Mr. Saidis) said that if we did require 2 signatures, that you would be
providing a lawsuit to the Township based on that. Are you suggesting that this 2 part motion
would eliminate that? Mr. Saidis said, it wouldn't eliminate it, but defines the issue. The only
issue the Township is involved with is the legal required of 2 signatures. Ron said to Tim Duerr,
can you tell me on Mr. McAdoo's property if we were to take the lease literally as Ms. Wolf has
indicated - that is says to transfer the entire 15 acres or the entire parcel. The access Mr.
McAdoo currently has off of Rt. 34, is that a deeded/recorded right-of-way into that property?
Tim said, I don't know if it is deeded or not. It's just a right-of-way, either by law or right-of-
way they have access to. Brian O'Neill said it's a private drive. Ron said, my question, well I
know, but if that access gets cut off to Mr. McAdoo & if we agree that this piece says the whole
thing has to go. I guess my problem is, in a sense, that Mr. McAdoo will be landlocked. Tim
said, that is not something we would know about. We don't have access to people's individual
right-of-ways - it's a private right-of-way, not a Township right-of-way. Ron said yeah, I guess
I'm looking at it is we don't see it as being a deeded or recorded right-of-way, we would
essentially be - Mr. McAdoo would be either in his house or he is ott on 34. Brian said the
Zoning Ordinance requires frontage on a public road. Right now they have frontage on a public
road. If that entire portion was conveyed, they would no longer have frontage on a public road &
will be in violation of the Zoning Ordinance. They have already applied for & one was denied
for a variance to do just that. The Diehls did prior to submitting this plan. Ron said prior to this
plan. Mr. Saidis said the variance failed because the Diehls were part of the subdivision & this
was self-created. But your question Ror; is something the courts will have to decide & that's
why I keep dropping back. Brian said the only thing you need to decide is the one issue. The
plan has been recommended to you, it complies with your ordinances. If you approve the plan,
reserve that issue. The Diehls indicated they would remove the stumps - that was a concern the
Page 4 - Supervisors Minutes - 02/14/08
Planning Department had, & we can work it out between ourselves somehow. The only issue for
the Township is for someone to move forward is someone has to sign the plan I talked to Upper
Allen & they let 1 equitable owner. I called Hampden Township, they said it has never come up.
I didn't get a chance to call other townships. Rick to Mr. Saidis, you implied that Mr. Baker said
it was tradition or something. Mr. Saidis said custom. Rick said that 2 signatures were required.
It's probably custom & precedent - is that a correct statement Tim? Tim said, it's in the
ordinance that the owners have to sign. We just put this as a post approval item on every plan.
This has never come up before. If there is 2 owners, 2 owners sign. Rick said there's that issue
& to me is the issue of common sense - you've got 2 parties involved with a change in a
document who sign it that to acknowledge it that they understand that it is changing. That seems
to make common sense & may not apply to the law. Mr. Saidis said, we lawyers like to think
that common sense is the law, but... Ms. Wolf said, if I may. I don't believe we need to reach
the issue of whether both signatures are required because first we have to reach the issue of
whether this can be a lawful transfer, & if they are suggesting only a partial transfer be done, &
the agreement provides in plain language that the entire parcel must be transferred. Then I don't
think we reached whether or not we need 2 signatures because its not lawful according to this
agreement & because of the zoning. Mr. Saidis said, we are nowhere near a conveyance. We
need our subdivision plan & we have another issue to get Mr. McAdoo to sign the deed - that's a
totally separate issue. Ms. Wolf said, but the subdivision can not be a subdivision of only a
partial part of that parcel, it must be the entire, according to this agreement, so we don't even
have to reach the issue yet of who's signature is required if it isn't lawful under the plain
language of the agreement. Bryan to Ms. Wolf, why does your client not want to sign this? Ms.
Wolf said, well number 1, he doesn't feel the agreement is valid - he feels the agreement is void
because there was no consideration. That's number 1 - that he doesn't feel this is a valid
agreement. Bryan to the Diehls, is there anything you guys can give up to make Mr. McAdoo
fill whole? Randy Diehl said about a letter wanting $150,000 - its all about money, he couldn't
care less what the agreement..... Ms. Wolf said, actually that is irrelevant - there were prior
counsel that weren't involved in this case that were involved in the prior letters. Also, it was in
the content of settlement negotiations that it is not the proper thing to be before the Board
tonight.
Rick, Mr. McAdoo? Mr. McAdoo said, well I have a feeling that the Township placed that 250
foot strip there for a reason. I didn't make that up - the Township required that at one time. I
would like to have a viable right-of-way from Rockledge to my farm. I've offered to the Diehls
& Mr. Saidis that I would be happy to have a street stub come to my farm. They are going to
develop that somehow & if they had a cul-de-sac in the middle of it, divide that into lots, I want
not a 25 foot or 10 foot strip coming down through there, but a street coming back to my farm.
Other townships require a 100 foot gravel lane coming in so if you are going to drag other
townships into this, my brother-in-law is a surveyor & he can't believe this is happening. He
would be laughed out of the township if he tried to get a 25 foot strip coming in on a subdivision.
Tom asked, is this $150,000 credible? Mr. McAdoo said it was credible. I'll tell you about the
credibility on that. They came to me 5 years ago when the Church of God was buying & said
they were interested in the property & they were just trying to sprinkle me & wanted to know
what I would be happy with or whatever. So I talked to a lawyer. They didn't offer to buy this -
they just wanted to know, so I just tossed out a number & said $150,000. Now that was 5-6
years ago. Recently there have been lots around there that sold for $150,000 for 6 acres. So this
makes this 15 acres worth around $450,000, so it is the value of the piece of land. It's also that it
Page 5 - Supervisors Minutes - 02/14/08
can be accessed to the Weibly Farm. So there is 97 acres there & I have 50-65 acres - the Diehls
just wanted to add onto the side of their property. It is a viable access coming into a bunch of
landlocked properties & I think it will be a shame to see it dropped back down to 25 feet. I'll
settle for a street right-of-way coming in off of Rockledge to my property. There is a 10 foot
right-of-way I've got to Rockledge on the northern edge of that thing, & the Diehls were
interested in that. I would be happy to bring everything together - the 10 foot right-of-way, the
250 foot right-of-way. Mr. Saidis said, we spent a year & a half negotiating with this man.
That's why we're here tonight. The letter I just gave to Mr. Faley says you wanted $150,000 &
doesn't need access to Rockledge - it says it right in there. Ms. Wolf noted her objection & said
it is not relevant to be considered tonight. Mr. Saidis said, it's at the Board of Supervisors. Ms.
Wolf said it's still not relevant - it's just misleading. Rick to Mr. Mislitsky, I would like to hear
from you. Mr. Mislitsky, said what you are being presented with are complex legal issues
whether or not there is consideration on a contract, definitions from the MPC, interpretation of
the Ground Lease you were quoting fom - they're complex legal issues. A judge is going to
have an evidentiary hearing to minimize your authority, but you are not equipped to handle these
issues. Frankly, both sides have good arguments. You need to flip a coin or go with your gut
because we can go on back & forth - this letter, that letter, I want to do this, I want to do that,
which really relevant is if that agreement is valid & let the court determine who needs to sign.
Mr. Saidis to Mr. Mislitsky, would you agree with me Rich, that with 2 motions it will minimize
the Township's involvement? Otherwise, you are in the whole mix. We were here 2 weeks ago
& Brian said there was only 1 issue, everything else is resolved. It was going to be approved
subject to the Planning Commission's memo. If you can do that, withhold the signatures....
(inaudiable). Rick said, let him answer your question. Mr. Mislitsky said, you have another
alternative. You can approve the plan conditioned that you have both signatures. You can do it
Robert's way. Rick to Mr. Mislitsky, from the standpoint of the Township, which way do you
think is better for us? Mr. Mislitsky said, you're asking me to decide. Tom said, really that's
important. Mr. Mislitsky said, you're asking me to become a judge. Tom said, asking you for a
legal venue, otherwise on the route to go.
Rick asked, is there a third option - deny the plan? Tom said, see that's what I want. Mr.
Mislitsky asked, is there a basis to deny the plan? Tim replied, signatures. Mr. Mislitsky said,
you can deny the plan for lack of owner's signature. Mr. Saidis said, but we've met everything
else. Mr. Mislitsky said, you're either going to approve it or not approve it. I mean if they are
saying the plan doesn't satisfy our ordinance because there is a signature missing, then they are
not approving the entire plan. Mr. Saidis said, right- you are defining the legal issues...
(inaudiable). Mr. Mislitsky said, if I'm not mistaken, all the technicalities, other details,
specifications have been satisfied, I'll let Tim & Brian answer that. The issue is who needs to
sign that plan & whether or not that agreement is valid. Mr. Saidis said, who needs to sign the
plan is the only issue in front of this Board. Mr. Mislitsky said, oh I know that, but Stacy is
right. Ms. Wolf said, I don't believe so because the plain language which everyone here can read
says that it must be the whole parcel, not just a part of the parcel. Mr. Mislitsky said, you need
to interpret the agreement - you can't do that. Ron asked Mr. McAdoo, if the Diehls were
willing to agree to build you a... to give you a 50 foot right-of-way along with the construction
of a base driveway to go in there, would you be willing? Mr. McAdoo said, it sounds pretty
good. I like the idea of a street. I don't know what the 50 foot - does that meet the requirements
of a street? Ron said, well that's normally our 50 foot right-of-way. But to give you a good
driveway that would be able to be added to become a legitimate street. Very honestly, I wouldn't
Page 6 - Supervisors Minutes - 02/14/08
want to see a 28 foot blacktop driveway just going back & stopping at the edge of your
driveway. Would you be willing to accept their agreement to give you a 50 foot right-of-way
with a 20 foot wide cartway with a legitimate stone base that would pass our normal specs for a
base on a road. Would you be willing to get this thing settled? (Too many people were speaking
to hear). Mr. Saidis said this has been part of what has been dragging this down, in addition to
these other issues, was the access. You've got this in the A -C zone, the Diehls aren't looking to
develop, they want to farm - they're farming it. Well they can't commit to themselves that if 50
years from now someone wants to develop it. If you look at the terrain you can't go on that - its
not a right-of-way. When Terry Rickert was here, there was that background plan to connect
these with a 250 foot wide right-of-way. The Township saw the foolishness of that & that's
when the ordinance was (inaudiable). We have been dealing with this for 3 years. Mr. McAdoo
said, as far as he knows, the Diehls are interested in selling this whole property. If they weren't,
they are already allowed to farm it or else they wouldn't need it to farm as he's indicated. They
want to sell it. Mr. Diehl engaged into conversation with Mr. McAdoo but it was not clear on the
tape. Rick said, I would personally agree with Rich. I'm not here as a judge & not in a position
to pass judgment on this. But as far as the legal validity, I'm not interested in trying to define
that. Mr. Mislitsky to Rick, I have a suggestion -just off the top of my head & I get into trouble
when I do this. Why don't you take no action & make 1 or both of them file an action
mandamus. Mr. Saidis said, this will get you sucked in on all these issues, unless the motion is
to deny only for the lack of a signature. Bryan to Mr. Saidis, said he could not believe you do
not want to bill more fees for something like this. Rick to Mr. Saidis, you already indicated we
were going to get sucked into this. Mr. Saidis said, if you do it Rich's way, you're in for the
whole dollar. My way you are only in for a nickel. Mr. Mislitsky said, we may get named, I go
into that courtroom & say to the judge that this is an argument between these 2 parties. If the
judge isn't going to like that, I'm going to get hell for it, not you. Mr. Saidis said, but the
problem with that is that they are going to come back & say I'll have to drag your staff in to say
that this plan would have been approved except for the signatures. Mr. Mislitsky said, we can
probably stipulate to that if these guys are willing. Mr. Saidis & Mr. McAdoo both spoke, but it
was not heard clearly. Rick said that the precedent we have established in the past for this multi
party agreement, we have required signatures of all parties. Tim said, we have never had this
situation before - no one has ever brought fiis issue before us ever. Brian said, we have
recorded plans that the landowner (person that actually owns the land) did not sign, but the
equitable owner did. I'm trying to think of one - Rite Aid, Carlisle Crossing. Tim said, almost
all of the commercial plans. Brian said, Carlisle Crossings, Washco AFC signed the plan & we
recorded it. The Blacksmiths owned the land at the time we recorded it. The Blacksmiths still
owned the land at that time & it wasn't until after we recorded the plan that they settled on the
land. So we have done that as equitable owners. In this case, the owner of the land of record is
fighting the fact that they are equitable owners. So, what do you do in that case? Our choices
are approve it & you can say it only needs the Diehls signature & they sign it & record it & its
encumbent on Mr. McAdoo to fight it in the court. Rick to Mr. MaAdoo, that's what you said
you wanted. Mr. McAdoo said, he would like to see it settled, & he would like to someone,
besides these people tell me what is to be done. Ms. Wolf said, I don't think Mr. McAdoo is
saying he wants you to approve this just so he can take it to court. I don't believe that is what he
is saying. I think he's saying if he has to go to court, but I don't think he wants to unless it is
absolutely necessary. And the other issues I wanted to raise is that maybe in these other cases
the owner did not object to only having the equitable owner's signature, & in fact, in the
Jenkintown case which I believe was brought up at the last meeting, the landowners did not
Page 7 - Supervisors Minutes - 02/14/08
object. And so, once again, we have a difference here where we have the landowner objecting &
asking that both signatures be required in accordance with the ordinance - what is necessary.
Mr. Mislitsky said, I told you there are no clear cut answers here. Tom said, no, but I heard what
you recommended & I weigh it significantly. Mr. Mislitsky said, what did I recommend? Tom
said, you recommended that it go to court, period. Mr. Mislitsky said, yeah, but which one of
those people would have to initiate the action. Tom said he thought we would leave that up to
them. Brian said, but your decision is going to determine - if you say they both have to sign,
then the Diehls & the Saidis' are going to sue the Township saying you need to record it with
just the Diehls. If we approve it & say that McAdoos have to sign it, or no, the other way
around, just the Diehls, then the Diehls sign it & we record it, then it will be encumbent upon
Mr. McAdoo to challenge that subdivision. Tom to Mr. Mislitsky, say again what you
recommended a few minutes ago. Mr. Mislitsky said, I just tossed out another alternative is that
you make no decision on the plan. Let someone file an action mandamus to force the Township
to act, but I understand.... Several people spoke at once & was not understandable on the tape.
Mr. Mislitsky said, yeah, he's right. You're right, you're right, you're right, you're right, you're
right. He's right. If a mandamus action, the court would send it back. Tom said, telling us the
same thing, telling us 1 signature or 2 signatures, the court wouldn't say which position to take.
Mr. Saidis, the mandamus will send it back. Mr. Mislitsky, gentlemen if you... Ron said, we
don't want it back. Mr. Saidis said, we're ok (inaudiable). Ms. Wolf said, well actually, the
other alternative is the application for subdivision is not or should not be before the Board. You
could decide this is an improper place to bring this action & not make a decision due to that. Mr.
Mislitsky said, can I ask counsel to just sit down. We can go back & forth with this for another
hour. Rick said, I'm going to call for a motion in regards to approving this plan & the signatures
required to do so. Ron asked, 2 motions or 1? Rick replied, 1 motion.
Bryan said, I'll make a motion to approve the plan with the requirement that it receives both
signatures. Rick said, do I hear a second? Ron seconded. Rick said, its been first & seconded,
all those in favor indicate by saying aye. Ayes. Rick said, those opposed? None. Mr. Mislitsky
said, I'm sorry, but I need to refine your wording. If you are saying that both signatures are
required, then you need to say that we are denying the plan on that basis because the owner
needs to sign. It's the same thing, its just... Bryan said, so we are going to do a denial? Tim
said, or you can approve it subject to the conditions. Mr. Mislitsky said, yeah. Ron said, that's
what he just did. Bryan said, no I was sitting here, I know what I did. Mr. Saidis, (inaudiable)
approve it subject to. Bryan said, which is the 2 signature requirements. If you want me to say
we are approving it subject to. Mr. Mislitsky said, you're right - that's good. Bryan said,
subject to the post approval items. Rick said, so you need to withdraw your first motion. Bryan
said, I'll withdraw my motion. Ron said, I'll withdraw my second. Bryan said, my motion will
be approve it subject to post-approval items which requires 2 signatures. Rick asked, do I have a
second? Ron seconded. Rick said, all those in favor, please indicate by saying aye. Ayes. Rick
asked, those opposed? None. 4-0. Motion carries. Ms. Wolf said thank you.
#07-23 SPARKS TRACTS LOTS 2 & 3 - Preliminary Land Development:
Attorney Jim Hughes represented this plan. The applicant proposes to construct a 39,700 s.f.
office, employee parking area, entrance drives, & a stormwater management pond in SMT.
These facilities are in support of a 1,286,800 s.f. warehouse located in Dickinson Twp. The
entrance into the site is on Ames Drive (in SMT). Mr. Hughes stated that the Planning
Commission approved the plan, & that the comments have been met.
Page 8 - Supervisors Minutes - 02/14/08
Modifications: Sidewalks, Curbs & Gutters, Upgrade existing roadway, & Stormwater
retention facilities. Bryan made a motion to approve the modifications. Tom seconded, & the
vote in favor was 4 to 0.
Ron made a motion to approve #07-23, subject to the applicant's acceptance of staff comments.
Bryan seconded, & the vote in favor was 4 to 0.
Turning to the Engineer's report:
The applicant for the Trammel Crow Preliminary Plan is proposing to provide sewer & water to
this property. An inter-municipal agreement is needed for public sewer in order to approve this
plan. The applicant is proposing to bring SMTMA sewer service into Dickinson Twp. An inter-
municipal agreement for public water currently exists; however, another agreement is required to
allow a different point of connection than what was proposed before. Tom made a motion to
approve an inter-municipal water & sewer agreement subject to a satisfactory review by the
Solicitor. Bryan seconded, & the vote in favor was 3 to 1 (Ron abstained).
#07-25 MEMBERS 1sT FEDERAL CREDIT UNION - Final Minor Land
Development:
The applicant proposes to contract a drive-through bank on Lot #8 of the Carlisle Crossing
shopping center. Conditional use approval has been granted. Mr. Aaron Navarro presented the
plan. The Planning Commission had concern with traffic exiting the shopping center & blocking
traffic at the signal. It was suggested placing a "Do Not Block Driveway" sign on Westminster
Drive & to restripe the area for a left turn lane. Mr. Navarro said he will escrow $4,000 for
striping if needed.
Modifications: Preliminary Plan, Wetland Certification, Planning Module, Stormwater
Management Plan, Documentation for conformity to EIA & TIS, No parking closer than 10 feet
to building, Islands every 10 parking spaces, 20 ft. wide planting strip, Traffic Impact Study, EIA
report. Tom made a motion to approve the modifications. Ron seconded, & the vote in favor
was 4 to 0.
Ron made a motion to approve #07-25, subject to the applicant's acceptance of staff comments
& placing $4,000 in escrow fir restriping an area for a left turn on the lot. Bryan seconded, &
the vote in favor was 4 to 0.
RETURNING TO #07-15:
Rick said, it has been brought to my attention that as part of the #07-15 Raymond & Genevieve
Diehl Final Minor Subdivision plan, there were some modifications of requirements as part of
that also. And we should to back & approve those modification requests. They were sections
501, 501 b (15), 502 g (5), 601 b (1), 602 c, 602 d, 602 f, 602 g, 711 b(2) (g) & 716 c (5) (c). Can
I have a nation to approve those modifications? Bryan said, Ill make that motion. Rick said,
second? Rick said, I'll second. All those in favor, please indicate by saying aye. Ayes. Rick
asked, opposed? None. Motion carries 4.0. Rick to Mr. Mislitsky, do we need, as a point of
precedent, do we need to go back & reapprove the subdivision to the modifications or are we
alright? Mr. Mislitsky replied, I don't think you have to, but could I make a suggestion? You
need to incorporate that bantering & discussion as part of your motion. I mean you approved it
subject to 2 signatures. All I would like to do is frame the issues for the court & they are coming
Page 9 - Supervisors Minutes - 02/14/08
from the attorneys. Like we move to approve the plan... Rick said, subject to bantering - how
do we do that? Brian said, after exhaustive... Mr. Mislistky said, we move to approve the plan
subject to both parties signing based on the arguments that were presented. Bryan asked, didn't
we do that? Mr. Mislitsky said, I don't think you put in arguments presented, but that's fine,
Sandy will. Rick said, so you are saying that your recommendation is we still go back & ... Mr.
Mislitsky said yes. Rick said, another motion & approve it & that is basically because we have
now done the modifications that we should have done before. Mr. Mislitsky said, exactly. Rick
said alright.
Bryan said, I'll make a motion to approve plan #07-23 subject to post-approval items. Brian
said, no - #07-15. Bryan said, sorry #07-15 subject to post-approval items, staff comments,
bantering, 2 signatures & anything else the Solicitor deems important to our case. Mr. Mislitsky
said, wow, I feel important. Rick asked, do I have a second to that? Ron seconded. Rick said,
all those in favor please indicate by saying aye. Ayes. Rick asked, opposed? None. 4-0. Mr.
Mislitsky asked, can I ask for 1 other thing? Make a motion that the Township does not take a
lead in any appeal that is filed & the matter should be addressed by both parties. Bryan said, so
moved. Ron seconded. Rick said, all those in favor please indicate by saying aye. Ayes. Rick
asked, opposed? None. 4-0.
SOLICITOR REPORT:
No report was given.
ENGINEER REPORT:
Bryan made a motion to approve a security reduction for Westgate, Phases 5, 6, & 7 (#06-24).
Ron seconded, & the vote in favor was 4 to 0.
Bryan made a motion to approve a 90 day time extension for the United Telephone Company
(#07-11). Tom seconded, & the vote in favor was 4 to 0.
The developer for Misty Meadows, Phase 2 is requesting that a swale that was to be built
between his development & the Wheatstone development be eliminated. There is a tree line
along the back of those properties that would have to be removed. No impact to drainage will
occur since there are no homes along the Wheatstone property. Bryan made a motion to approve
a waiver request for Misty Meadows, Phase 2 (#03-04). Ron seconded, & the vote in favor was
4 to 0.
Regarding dedication & a maintenance agreement for the A.C. Kuhn, Lot 3 (Dennison Tract)
#07-05, an access road from the cul-de-sac at the end of Commerce Drive in SMT to the
warehouse in Dickinson Twp is required. Dickinson has requested that the developer dedicate
this roadway, & the easement agreement for this right-of-way calls for a public road. The
developer is requesting SMT accept for dedication the portion that is in SMT. There would be
no benefit to the Township to accept this portion. Attorney Jim Hughes said that only 200 ft. is
in SMT. Tom made a motion to accept dedication subject to submission of an agreement
approved by the Solicitor that covers maintenance & indemnifies the Township. Bryan
seconded, & the vote in favor was 3 to 1 (Ron abstained).
Page 10 - Supervisors Minutes - 02/14/08
PLANNING/ZONING/CODES ENFORCEMENT REPORT:
No report was given.
MANAGER REPORT:
Tom made a motion to appoint Jeff Straub as a member to the UCC Apeals Board, & to appoint
Mike Scherer as Solicitor at $110/hr. Ron seconded. It was noted that Mr. Scherer is an alternate
Zoning Hearing Board member & this could present a conflict of interest. Tom amended his
motion to include asking Mr. Scherer to resign as ZHB alternate member. Ron seconded, & the
vote in favor was 4 to 0.
The Township is a member of the Capital Region COG & has agreed to participate in the
negotiation of a cable franchise agreement with Verizon. Tom made a motion to participate in
the franchise agreement negotiation. Bryan seconded, & the vote in favor was 4 to 0.
Consensus was given to advertise an ordinance for the special fire police agreement.
A joint meeting will be held on March 5 at 7:30 a.m. at North Middleton Township. Tom, Rick
& Ron said they will attend.
A letter was received from Bruce Pinto regarding a benefit bike tour on May 31. A good portion
of the tour is in the Township. Indemnification of the Township & traffic/police control is
needed. Tom made a motion to contact Mr. Pinto to supply indemnification & necessary
controls for safety for the participants & residents/motorists. Bryan seconded, & the vote in
favor was 4 to 0.
Tom noted that Waste Management was unable to pickup the trash on Tuesday & Wednesday
due to the inclement weather. He said they will pick up double next week. Tom noted that there
is a clause in the contract that allows for this provision, & suggesting reviewing this clause when
the contract is up for bid. Ron disagreed, & stated how terrible the road conditions were. He
said that with losing 2 days of pickup, they would never be able to catch up within the same
week. He felt Waste Management acted responsibly by staying off the roads when they were bad
while offering to pick up extra trash later.
PUBLIC INPUT:
Carol Shetter asked where the new Members 1' Credit Union will be located. It will be at the
Carlisle Crossing shopping center.
Lou Capozzi, 1565 Holly Pike, requested a hearing to discuss a possible rezoning issue of the
Mallios property. Bryan made a motion to schedule a hearing. Ron seconded, & the vote in
favor was 4 to 0. The hearing will be held on March 27.
SUPERVISORS' DISCUSSION:
Rick would like the Board to hold a workshop meeting. It was suggested a meeting be held on
March 1 at 7:00 a.m. He also asked about changing the time of public input (non-agenda items)
on the agenda. Two people in the audience would like to see it moved up on the agenda. It will
be placed after the minutes & prior to Supervisors' Discussion.
Page II - Supervisors Minutes - 02/14/08
BILLS FOR PAYMENT:
Tom made a motion to pay the bills. Bryan seconded, & the vote in favor was 4 to 0.
ADJOURNMENT:
Ron made a motion to adjourn the meeting at 7:29 p.m. Tom seconded, & the vote in favor was 4
to 0.
ATTEST:
SOUTH MIDDLETON TOWNSHIP
BOARD OF SUPERVISORS:
Sandra A. Quickel, Secretary Walter G. Reighard, Chairman
Bryan A. Gembusia, Vice Chairman
Ronald L. Reeder, Member
James N. Baker, Member
Thomas E. Faley, Member
r.1
7
??
i
?,,?.
RAYMOND E. DIEHL AND
GENEVIEVE A. DIEHL,
Husband and Wife,
PLAINTIFFS
V.
SOUTH MIDDLETON
TOWNSHIP, and
JOHN MCADOO AND
CATHY MCADOO,
Husband and Wife,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 08-1234 CIVIL
IN RE: DEFENDANTS' MCADOO MOTION FOR JUDGMENT ON THE
PLEADINGS
BEFORE HESS, J., OLER, J., AND EBERT, J.
ORDER OF COURT
AND NOW, this 10t' day of September, 2008, upon consideration of
Defendants' McAdoo Motion for Judgment on the Pleadings, the briefs of the
Parties and after argument,
IT IS HEREBY ORDERED AND DIRECTED that the Motion for Judgment
on the Pleadings is DENIED.
By the Court,
/Robert Saidis, Esquire
A orney for Plaintiffs
Richard Mislitsky, Esquire
For South Middleton Township
?Nathan Wolf, Esquire
For Defendants McAdoo
bas
COpreS
- I*k -?? =
M. L. Ebert, Jr., J.
VNVAIAMa
'
,kwon nt.
90 -.1 wa Q 1 83S z
1+ JUCHil
RAYMOND E. DIEHL
and GENEVIEVE A.
DIEHL, husband and
wife,
Plaintiffs
V.
SOUTH MIDDLETON
TOWNSHIP and JOHN
McADOO and CATHY
MCADOO, Husband and
Wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-1234 CIVIL TERM
ORDER OF COURT
AND NOW, this 16'' day of September, 2008, upon consideration of Plaintiffs'
Motion for Sanctions, a Rule is hereby issued upon Defendants to show cause why the
relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
?Robert C. Saidis, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
Z/Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
John and Cathy McAdoo
'VINVA lhGNNAd
A1.Nrcr, r , ,w "gWno
N :Zl Wd 91 83S BOOZ
V /Richard P. Mislitsky, Esq.
1 West High Street
Suite 208
P.O. Box 1290
Carlisle, PA 17013
Counsel for Defendant
South Middleton Township
:rc
Oopces mks
RAYMOND E. DIEHL and GENEVIEVE IN THE COURT OF COMMON PLEAS OF
DIEHL, Husband and Wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. NO. 2008-1234 Civil Term
SOUTH MIDDLETON TOWNSHIP and CIVIL ACTION -
JOHN MCADOO and CATHY MCADOO, IN MANDAMUS AND EQUITY
Husband and Wife,
Defendants
ANSWER TO MOTION FOR SANCTIONS
AND NOW COMES Richard P. Mislitsky, Solicitor for South Middleton Township, and
responds to Plaintiffs' Motion for Sanctions as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted. By way of further response, Rule 4007.1(a) states "A party noticed to
be deposed shall be required to without subpoena' (emphasis added) By implication, such
implication being consistent with well-established practice, a subpoena is required to be served
upon a non-party deponent. The deponent (Mislitsky) is neither a party nor a non-party
designated to testify under rule 4407.1(e). No subpoena was served upon Mislitsky.
5. Admitted. By way of further response, no subpoena having been served upon
Mislitsky, there was no obligation to appear for deposition and the correspondence referred to by
Plaintiffs was a "courtesy" afforded counsel in this matter.
6. Admitted. By way of further response, subsequent to the meeting of the Board of
Supervisors on February 14, 2008, Plaintiffs and counsel for the Plaintiffs requested the
opportunity to and did listen to the audio tapes of said meeting. By way of additional response,
after hearing the audio tapes, Plaintiffs' counsel requested that the relevant portions of the
meeting be transcribed verbatim from the audio tapes and that such verbatim transcription be
incorporated into the official minutes of said meeting. Exhibit "B" of Plaintiffs' Motion
(meeting minutes) contains the verbatim transcription of the relevant discussion occurring during
the aforesaid meeting.
7. Admitted. By way of further response:
(i.) Counsel for Co-defendant, McAdoo, also left the meeting;
(ii.) The Board of Supervisors (BOS) approved the subdivision plan ("Plan") as
requested by Plaintiffs. However, the BOS rejected the request to record the subdivision plan
without the owner's signature. After doing so the BOS was compelled to return to the
Subdivision Plan at issue in that said Plan failed to comply with the Subdivision and Land
Development Ordinance of South Middleton Township and the BOS failed to act on the
Plaintiffs' request to waive ten (10) requirements of the SDLDO.
(iii.) Counsel for the Diehls' knew that he had failed to have the governing body
act on the ten (10) waiver requests, and that failure to do so negated the BOS approval of the
Plan.
(iv.) Plaintiffs and Plaintiffs' Counsel voluntarily departed the meeting knowing
that the ten (10) sections of the SDLDO had not been waived and that failure to act on the ten
(10) waivers rendered approval of the Plan null and void.
8. The minutes of the Board of Supervisors meeting of February 14, 2008 speak for
itself. By way of further response, said minutes, at the request of Plaintiffs' counsel, is a
verbatim transcription of the relevant discussion taken from the audio tapes of said meeting, said
audio tapes having been previously produced for and heard by Plaintiffs.
9. Denied. The reasons set forth for taking the deposition of Mislitsky are
specifically denied. To the contrary, it is believed and therefore averred that the true reason for
Plaintiffs' attempt to depose counsel for South Middleton Township is as set forth in paragraph
13 (3) of Plaintiffs' Motion, that is, to disqualify Mislitsky from acting as counsel for South
Middleton Township in this matter. SMT affirmatively avers that Plaintiffs' intention to depose
Mislitsky and Plaintiffs' Motion for Sanctions constitute bad faith.
By way of further response and quoting the language of paragraph 9 of Plaintiffs' Motion for
Sanctions which sets forth the alleged reasons for the deposition at issue, SMT further avers as
follows:
(i.) "... the facts and circumstances surrounding the actions of South Middleton
Township on February 14, 2008 ..." The entire discussion of the Plan is set forth in the verbatim
transcription of the meeting. If the minutes do not adequately set forth the "facts and
circumstances" surrounding the decision of the BOS, the audio tapes of the meeting, and if
necessary, the South Middleton Township file are available to the Plaintiffs without the
deposition at issue.
(ii.) "... the facts and circumstances surrounding ... the motion which was passed
outside the presence of the parties..." Again, everything that was said during the Board's
discussion of the Plan is set forth in the "verbatim minutes" and/or the audio tapes produced for
Plaintiffs and Plaintiffs' counsel.
(iii.) "... the meaning of the above quoted motion (see paragraph 8 of Plaintiffs' Motion)
" The "meaning" of the Boards' motion can only be explained by the Board of Supervisors,
more specifically the Supervisor who made the motion. Other than what is stated in the
"verbatim minutes", only the person making the motion can explain the "...meaning of the
motion."
(iv.) As set forth in the motion quoted in paragraph 8 of Plaintiffs' Motion, "... anything
else the Solicitor deems important to our case ..." has been set forth in correspondence to
Plaintiffs' counsel dated February 20, 2008 and May 21, 2008. Both letters are attached hereto
and marked Exhibit A.
10. Admitted. By way of further response, Plaintiffs' counsel ignored the Pa. Rules
of Civil Procedure and failed to serve a subpoena on Mislitsky. Appearance at deposition was
not required in the first instance and a Protective Order was unnecessary.
11. South Middleton Township incorporates its responses previously set forth herein
and further responds that cancellation of the deposition did not require the approval of this
Honorable Court.
12. No response is required. Rule 4019 speaks for itself.
13. It is denied that Plaintiffs are entitled to any relief under the law. South
Middleton Township incorporates herein paragraphs 4 through 12 hereof and further specifically
responds as follows to the specific relief requested:
13.(1) The appropriate relief under the alleged facts is a Motion to Compel the
appearance of Mislitsky at deposition and only after Plaintiffs properly serve a subpoena on
Mislitsky.
13.(2) Even assuming arguendo that Plaintiffs' Motion for Sanctions is factually
and legally appropriate, the commentary to Rule 4019 establishes that the payment of counsel
fees is appropriate only after a successful Motion to Compel Compliance.
13.(3) Under the present facts, there is no basis for preventing Mislitsky from
continuing as Solicitor for South Middleton Township.
13.(4) -13.(5) There is no factual or legal basis for the impositions of a_y
sanctions, including contempt of Court or any other relief. The appropriate relief under the facts
as alleged is a Motion to Compel the appearance of Mislitsky at deposition and only after
Plaintiffs comply with the requirements set forth in the Pa. Rules of Civil Procedure.
WHEREFORE, South Middleton Township prays this Honorable court to dismiss
Plaintiffs' Motion for Sanctions.
Dated:q ?Z I -0?
Respectfully submitted,
1?44 ?- Y, "
Richard P. Mislitsky, Esquire
Attorney for Defendant, South Middleton Township
Supreme Court ID #28123
1 West High Street, Suite 208
P.O. Box 1290
Carlisle, PA 17013
VERIFICATION
I verify that the statements made herein are true and correct to the best of my knowledge.
I understand that false statements made herein are made subject to the penalties of 18 Pa.C.S. §
4909 relating to unsworn falsification to authorities.
1
Dated: 7 , ?A
RICHARD P. MISLITSKY
Law Office of
Richard P. Mislitsky
One West High Street
P.O. Box 1290
Carlisle, Pennsylvania 17013
Richard P. Mislitsky Telephone (717) 241-6363
Daniel J. Menniti, Esquire
Fax (717) 249-7073
May 21, 2008
Karl M. Ledebohm, Esquire'
Mark W. Allshouse, Esquire3
Via U.S. Mail & Fax to 717-243-6486
Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
Via U.S. Mail & Fax to 717-241-4437
Nathan C. Wolf, Esquire
Wolf & Wolf
10 West High Street
Carlisle, PA 17013
RE: McAdoo/Diehl
Gentlemen:
I am responding to Robert's correspondence dated May 15.
In my opinion, it is impossible for me to stipulate that what the supervisors did was not
done. If I understand your request correctly, you are asking me to disregard the action the
supervisors have taken. Gentlemen, I cannot do that. Only the Board of Supervisors could
rescind a prior action. -I- -
However, I have a solution.
Robert's letter states, "Obviously, only Rich can testify as to what the Solicitor deems
important to the township case." I am ready, willing, and able to stipulate that what I thought
was important to the case is outline of my letter of February The things in Ma-Tltm are what
in fact I deemed important.
If my recollection is correct, the reference to "bantering" is all of the discussion that went
back and forth between the attorneys that evening.
I have not had the opportunity to have this offer approved by the Board of Supervisors. I
am absolutely confident that this will not be a problem. They should have no difficulty in
stipulating to the facts.
Z 'Of Counsel -^'$ I J. Menniti, Esquire
I Of Counsel - EXHW Ledebohm, Esquire
Of Counsel - Pra
Lawyers Solutions, LLC
fl?? I
mail.
I am directing my staff to fax this letter to both of you. A hard copy will follow in the
RPM/jcm
cc: Board of Supervisors (with enclosure of 5/15/08 letter to NCW)
Barbara Wilson (with enclosure of 5/15/08 letter to NCW)
1Z C rCJ 1'. N,1>>?1ttikV
One West I Iii*h Street
11.0. Box 1290
Carlisle, Pennsylvania 17013
Telcpil?tne (7 i 7) 2-+1-663
Richard P. Nlislitsky
Daniel J. Nlenniti, Esquire'
Fax ( 17) 2-4'i-70 3
Februarv 20, 2008
Karl kl. Le(lcbollm, F quire'
Mark 1NK Allshouse, IL squire'
Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
RE: R.E. and G.A. Diehl
final Minor Subdivision Plan
#07-15
Dear Robert:
Please consider this letter together with his. Wilson's letter and the Board of Supervisors
Plan Review Form dated February 15, 2005. Please also consider this letter together with the
C01111nunication from NIs. Wilson (including attachments) as notice pursutalt to the IvIPC.
Your clients' plan was, as you know, approved subject to acceptance of certain
conditions. The Planning Department memo sets forth several conditions. I aln addressing the
"condition" that the fee owner, John ff. and Cathy S. McAdoo (McAdoo), sign the plan prior to
recording the plan.
The Township acknowledges that McAdoo has and continues to refuse to sign the plan.
The Township suggests that your clients and Mr. McAdoo resolve your differences.
Whether the owner's signature is required prior to recording the plan is a platter of first
impression in South Middleton Township, and perhaps the Commorlwealtll. The Board of
Supervisor's decision to require both signatures is consistent with prior South Middleton
Township practices and the recommendation of the South Middleton Township Planning
Department. There were other considerations. I will address them. Please also refer to the
minutes of the Board of Supervisors meeting.
First let rile reiterate that the Coll-in, oi1weaith Court decision in B*orougll of Jenkintown v.
Board oi' Commissioners. Abington Township 585A.2d. 136 (2004) is [lot oil point with this
matter. In Borou!-Yh of Jenkintown v. Board of Conlnlissioilers Abin?taton Townshi LI tile owner
agreed to recording, or at least did not object during the years the matter was in the judicial
Of Counsel - Practices independently as Daniel J. Nlenniti, Esquire
'OI'Counscl - Practices independently as Karl M. 1_edebohm, Esquire
Ot'Counsel - Practices independently as Christian Lawyers Solutions, LI_C
i' t.'i)1'liill'i' 20
?ci?C' ? (lj 7
system. A fair reading of that ease shows that there arc other distinl-Mishing features. III our
matter, the owners* refusal to si`„n the plan certainly presents us with sulticiently clitlerent t;icts
so as to conclude that it is not precedent in the instant dispute.
You know- that McAdoo's legal counsel has raised several issues relating to the validity
of the agreements upon which you rely (lack of consi(leration and interpretation of certain
sections of the agreement). If any of NlcAdoo's issues have merit, your clients have no standing
to even request subdivision approval. The Board of Supervisors believes that the validity of the
agreement is a conditional precedent to consideration of the plan. I acknowledge that tile Board
approved the plan. However, the Board approved the plan (with conditions) pursuant to
your specific request.
In sum, in addition to the issues raised in the Planning Department's memo, the action of
the Board included:
• The aforementioned decision is not precedent in this matter;
• The Township acted consistent with prior practice; and
• Until challenges to the underlying agreement(s) are resolved, your clients' right to
request subdivision approval is in doubt.
1 am available for any questions you or your clients mIay have
Sincerely, j
Richyd P. Nlislitskv
RPM!dls
cc: John 1-I. and Cathy S. McAdoo
Barbara Wilson, Manager
Wolf and Wolf
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Response to Motion for Sanctions was served this date
via United States Mail, postage prepaid, addressed as follows:
Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
Nathan C. Wolf, Esquire
10 West High Street
Carlisle, PA 17013
Richard P. Mislitsky
Dated:
By'??BRR L _ t
r:m Tl
rn
RAYMOND E. DIEHL
and GENEVIEVE A.
DIEHL, husband and
wife,
Plaintiffs
V.
SOUTH MIDDLETON
TOWNSHIP and JOHN
McADOO and CATHY
MCADOO, Husband and
Wife,
Defendants
ORDER OF COURT
AND NOW, this 15th day of October, 2008, upon consideration of the attached
letter, a conference is scheduled in chambers of the undersigned judge for Tuesday,
November 4, 2008, at 3:15 p.m.
A HEARING ON THE Motion for Sanctions is scheduled for Tuesday, December
23, 2008, at 1:30 p.m., in Courtroom No. 2, Cumberland County Courthouse, Carlisle,
Pennsylvania.
Vl(obert C. Saidis, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-1234 CIVIL TERM
IN RE: MOTION FOR SANCTIONS
'1
BY THE COURT,
D 1 :9 WV 91 100 OUR
Xathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
John and Cathy McAdoo
Achard P. Mislitsky, Esq.
1 West High Street
Suite 208
P.O. Box 1290
Carlisle, PA 17013
Counsel for Defendant
South Middleton Township
:rc
RAYMOND E. DIEHL and GENEVIEVE IN THE COURT OF COMMON PLEAS OF
DIEHL, Husband and Wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. NO. 2008-1234 Civil Term
SOUTH MIDDLETON TOWNSHIP and CIVIL ACTION -
JOHN MCADOO and CATHY MCADOO, IN MANDAMUS AND EQUITY
Husband and Wife,
Defendants
REPLY TO RESPONDENT'S ANSWER
TO MOTION FOR SANCTIONS
AND NOW COME Raymond E. Diehl and Genevieve Diehl through their
attorneys, Saidis, Flower & Lindsay and reply to the Answer
filed by Richard P. Mislitsky, individually or on behalf of
South Middleton Township.
1. Admitted.
2. Admitted.
3. Admitted.
SAMIS,
FLOWER Sz
LINDSAY
ArMRNEVS.ATIAW
26 West High Street
Carlisle, PA
4. Denied. No response is necessary as paragraph 4 of
the Answer states a conclusion of law.
5. Denied. To the contrary, even without a subpoena
there was an obligation to appear for the deposition as an
officer of the Court and pursuant to the instructions of his
client, South Middleton Township. Attached hereto as Exhibit
"C" is a copy of the minutes of the South Middleton Township
Supervisors' meeting dated August 28, 2008 authorizing "a
motion to grant a protective order". No other action was
authorized. Also attached hereto as Exhibit "D" is a copy of
the correspondence dated September 8, 2008, directing Attorney
Mislitsky's attention to the fact that the Board of Supervisors
authorized a protective order and not a refusal to appear.
6. Denied. Plaintiffs' son, Randy Diehl, listened to
SAIDIS,
LWD5AY
ATFC R qM-AT•IAW
26 West High Street
Carlisle, PA
the tapes. Plaintiff never requested a transcription. To the
contrary, attached hereto and made a part hereof as Exhibit "E"
is a portion of the South Middleton Township Supervisors
minutes of February 28, 2008 directing the staff to record the
discussion of the Diehl/McAdoo Plan verbatim. In further
answer, attached hereto and made a part hereof as Exhibit "F"
is a copy of correspondence dated March 5, 2008 to South
Middleton Township suggesting that a motion to approve the Plan
should reflect what happened in the presence of counsel and
agreeing to the motion for modifications.
7. Denied. No response is necessary as paragraph 7 of
the Answer states a conclusion of law. To the extent there are
factual averments, Plaintiffs are without sufficient knowledge
and information to form a belief as to the truth of the
averments and proof thereof is required.
8. Denied. The Plaintiffs never requested a verbatim
transcript of the minutes. To the contrary, the verbatim
transcript was on the motion of South Middleton Township,
represented by Attorney Mislitsky.
9. Denied. To the contrary, the Plaintiffs have on
numerous occasions, in written correspondence, attempted to
have counsel stipulate as to the facts of this case so it may
proceed. In support of this averment, Plaintiffs attach hereto
as Exhibit "G" correspondence of March 21, 2008, March 24, 2008
and April 7, 2008. In addition, the Plaintiffs postponed
scheduling the deposition of Attorney Mislitsky and, at the
request of South Middleton Township, attended the township
meeting on August 28, 2008. A copy of the minutes of 2008
whereby South Middleton Township refused to reconsider the Plan
are attached hereto as Exhibit "C".
10. Denied. No response is necessary as paragraph 10 of
the Answer states a conclusion of law.
SAIDIS,
FLOWER &
LINDSAY
n?mwv?YS. LAW
26 West High Street
Carlisle, PA
11. Denied.
the Answer states
12. Denied.
the Answer states
13. Denied.
the Answer states
No response
a conclusion
No response
a conclusion
No response
a conclusion
Date: is
of
is
of
is
of
necessary as paragraph 11 of
law.
necessary as paragraph 12 of
law.
necessary as paragraph 13 of
law.
Respectfu
submitted,
Robert/ C. Saidis, Esquire
Attorney for Plaintiffs
Supreme Court ID #21458
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
717-243-6222
VERIFICATION
I verify that the statements made herein are true and
correct. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
DATED :
ymond Diehl LT
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Reply to Respondent's
Answer to Motion for Sanctions was served this date via United
States Mail, postage prepaid, addressed as follows:
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Richard P. Mislitsky, Esq.
1 West High Street, Suite 208
P. O. Box 1290
Carlisle, PA 17013
Personally and as counsel for South Middleton Township
SAIDIS, FLOWER & LINDSAY
Dated: /Li 1.2 ? Og
hyllis McCoy
SAIDIS,
FLOWER &
LINDSAY
ZTUR Exs nr AW
26 West High Street
Carlisle, PA
Page 4 - Supervisors Minutes - 08/28/08
#08-10C CELLCO PARTNERSHIP - Conditional Use Public Hearing:
Attorney Ledebohm opened the hearing. The applicant granted a time extension until September
25, 2008 to hold a public hearing. Bryan made a motion to accept the time extension. Tom
seconded, & the vote in favor was unanimous. The hearing was closed.
#07-15 RAYMOND E. & GENEVIEVE A. DIEHL - DISCUSSION:
Rick stated the issue. The developer would like the original motion for plan approval rescinded.
This issue is in court, & should not be discussed further. No input will be taken from either party.
Mr. Ledebohm requested authorization from the Board to file a protective order for Solicitor
Mislitsky. Rick stated that if Mr. Mislitsky is deposed, he would not be permitted to represent
the Township. Ron made a motion to grant a protection order for Solicitor Mislitsky. Bryan
seconded, & the vote in favor was unanimous.
EMERGENCY SERVICES REPORT:
The report was accepted, as submitted.
RECREATION REPORT:
No report was given.
ROADMASTER REPORT:
The report was accepted, as submitted.
SOLICITOR REPORT:
No report was given.
ENGINEER REPORT:
The following security releases were submitted:
F.R. Acquisitions (True Temper Lot A)
A.C. Kuhn Subdivision
F.R. Acquisitions (A.C. Kuhn Lot B)
PFS Capital Investments, LLC
Jim made a motion to approve the security releases.
#00-10
#00-14
#01-09
#05-19
Bryan seconded, & the vote in favor was
unanimous.
Donna Stine has requested a waiver of the required replacement area for her septic system on an
undeveloped lot. Under the Ordinance #00-02, all new septic systems are required to have two
approved areas (one that is built & the other is a replacement area). The lot was subdivided in
1969. The lot has never been built upon. The Township SEO has determined that the lot is too
small for a replacement area. Jim made a motion to approve the waiver request. Bryan
seconded. Rick asked if it was determined what type of system can be installed. Brian said that
it depends on soil testing, depth, slope, etc. Bryan asked if notification could be placed on the
deed when the lot is sold. Barb said that a note could be placed on the septic permit about
having one location for a septic system. Jim amended his motion to approve the waiver request
& to include notification of only one septic location on the septic permit. Bryan seconded, & the
vote in favor was unanimous.
LAW OFFICES
SAIDIS, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
JOHN E. SLIKE CARLISLE, PENNSYLVANIA 17013
ROBERT C. SAIDIS TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
JAMES D. FLOWER, JR. EMAIL: attorney@sfl-law.com
CAROL J. LINDSAY www.sfl-law.com
JOHN B. LAMPI
MICHAEL L. SOLOMON
GEORGE F. DOUGLAS, III
DEAN E. REYNOSA
THOMAS E. FLOWER
MARYLOU MATAS
September 8, 2008
Richard P. Mislitsky, Esq.
One West High Street, Suite 208
P. 0. Box 1290
Carlisle, PA 17013
Re: Diehl v. South Middleton Township
Supervisors and McAdoos
No. 08-1234 Civil Term
Dear Rich:
CAMP HILL OFFICE
2109 MARKET STREET
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
REPLY TO CARLISLE
As I suggested on numerous occasions, the Diehls intention has
been to establish the facts pertinent to the township and file
a Motion for Summary Judgment.
In this regard, if you desire to draft the Stipulation for my
review prior to your deposition, I would be happy to review the
same.
If you have any questions, please do noic hesitate to contact,
me.
Ver,,y-true y yours,
FLOWER & LINDSAY
Robert C. Saidis
RCS/pm -/ - 7;' S ? O S
C9?
CC : Mr. and Mrs. Raymond Diehl W /?/VC /Z ?`
Nathan Wolf,
GC ,/u a CYO. IA. y 6U
,?-trt o FD C p?l?-C. ,<
Page 2 - Supervisors Minutes - 02/28/08
Because Attorney Saidis previously put the Board on notice that a lawsuit would be filed
regarding the Board's conditional approval of this plan (2 signatures required on the plan),
Attorney Mislitsky advised the Board that this point should be discussed.
Mr. Diehl asked the Board if they knew what they were approving when the motion was made.
There was a short discussion about the approval motion, at which time, Supervisor Gembusia
stated that he did understand that the second motion included the point of the legality of the
agreement. Otherwise, the Board wouldn't have made the approval motion conditioned on two
signatures being necessary for recording. Supervisor Reeder asked Mr. Diehl if he had a
problem with the minutes as recorded. He stated he did not, but did take issue with Attorney
Mislitsky's follow up letter of February 22, 2008. Mr. Diehl reiterated that Attorney Saidis'
input was not included in the minutes, and it should have been.
At this point, Supervisor Reeder made a motion to not adopt the minutes of the last meeting.
These will be addressed at the next meeting. Supervisor Faley seconded, & the vote in favor was
unanimous.
The Board directed staff to record the discussion of the Diehl/McAdoo plan verbatim to be
included in the minutes for approval at the next Board of Supervisors meeting.
PUBLIC INPUT
There was no public input at this time.
#07-12C MORGAN'S CROSSING - Conditional Use Public Hearing:
Attorney Mislitsky opened the hearing and stated that the last hearing was opened and closed on
January 24, 2008. At this time, the applicant was requested to complete a traffic study, and that
information has not yet been submitted. The applicant was not present, & there will be no
presentation. Brian O'Neill stated he expects the applicant's traffic study to be presented by
March 7, 2008, but does not know if that will provide sufficient time for review. The Board
previously approved an independent review by a traffic engineer, but because the study has not
yet been submitted, that has not occurred. There was a short discussion about the time
constraints for this plan which will be clarified by the next meeting.
At this point, Michael and Carla Arnold requested to be granted party status by the Board.
Supervisor Faley made a motion to approve this request. Supervisor Baker seconded, and the
vote in favor was unanimous.
Supervisor Gembusia stated for the record that he and Supervisor Reeder were requested to meet
with the residents of this area, but because of the formal proceedings of this project, are now
legally not able to meet that commitment. Solicitor Mislitsky explained that if the Board
members met with the residents to hear their concerns, their vote could be challenged.
Supervisor Reighard added that if the concerns are of a general nature, they should be addressed
in a forum such as the comprehensive plan and zoning ordinance meetings that were recently
concluded after a period of about two years.
Supervisor Reeder made a motion to close the hearing and continue it on March 27, 2008.
Supervisor Gembusia seconded, and the v Q-
. The hearing was closed.
JOHN E. SLIKE
ROBERT C. SAIDIS
JAMES D. FLOWER, JR.
CAROL J. LINDSAY
JOHN B. LAMPI
MICHAEL L. SOLOMON
GEORGE F. DOUGLAS, III
DEAN E. REYNOSA
THOMAS E. FLOWER
MARYLOU MATAS
SUZANNE C. HIXENBAUGH
Barbara Wilson
South Middleton Township
520 Park Drive
Boiling Springs, PA 17007-9536
March 5, 2008
Re: Plan # 07-15
Raymond E. and Genevieve A. Diehl
Final Minor Subdivision
Dear Barb:
CAMP HILL OFFICE
2109 MARKET STREET
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
REPLY TO CARLISLE
Thank you for your recent correspondence and cooperation with regard to the
minutes.
Randy Diehl listened to the tapes and we would suggest that the motion to
approve Plan #07-15 should reflect what happened in the presence of counsel for
the parties. That motion was made "subject to staff comments and requiring two
signatures on the Plan". There was no reference to "arguments presented by
counsel, bantering or matters deemed important to your case by your Solicitor".
The subsequent motion to approve the modifications, although taken out of order,
is acceptable to my client. I would suggest that the order of the motions is
not a fatal defect, but merely a housekeeping matter. This, also, holds true
for the motion made by the Board of Supervisors concerning their involvement in
any litigation.
We would request that the motion to approve the Plan reflect what happened in
the presence of counsel without additional comment. The motions on
modifications and litigation, which were in the draft minutes, are acceptable.
Thank you for your continuing cooperation in this matter.
Very trA-? yaurs,
RCS/pm
CC: Mr. and Mrs. Raymond Diehl
Richard P. Mislitsky, Esq.
LAW OFFICES
SAIDIS, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
EMAIL: attorney@sfl-law.com
www.sfl-law.com
SAIDIS, ER & LINDSAY
,f
L Robert C. Saidis
JOHN E. SLIKE
ROBERT C. SAIDIS
JAMES D. FLOWER, JR.
CAROL J. LINDSAY
JOHN B. LAMPI
MICHAEL L. SOLOMON
GEORGE F. DOUGLAS, III
DEAN E. REYNOSA
THOMAS E. FLOWER
MARYLOU MATAS
SUZANNE C. HIXENBAUGH
LAW OFFICES
SAIDIS, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
EMAIL: attorney@sfl-law.com
www.sfl-law.com
March 21, 2008
Via email manas'etasmiddleton.com
Barbara Wilson
South Middleton Township
520 Park Drive
Boiling Springs, PA 17007-9536
CAMP HILL OFFICE
2109 MARKET STREET
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
REPLY TO CARLISLE
Re: Supervisors Minutes - February 14, 2008
Dear Barb:
After practicing law for more than 30 years, being the
Cumberland County Solicitor and Solicitor for various
municipalities, this total confusion with the minutes of
February 14, 2008, is beyond my comprehension.
The tape that Randy Diehl listened to indicated that there was a
motion on the Modifications. I believe everyone agrees that
needed to be done and no one is objecting. I do not see that in
the minutes. I have expressed, on several occasions, that I
have no objection to its inclusion. (See my letter of 3-5-08
attached)
Secondly, there was a motion made, seconded and unanimously
passed that South Middleton Township not take any active role in
the Appeal. This, also, is not in the minutes. In fact,
subsequently, Rich filed an Answer to our Appeal of your action.
I have not had an opportunity to review the verbatim minutes
because I wanted to get this letter to you as soon as possible.
South Middleton Township has taken what should have been a
simple matter of the following three motions and created
tremendous legal questions and confusion:
Barbara Wilson
March 21, 2008
Page 2
1. The motion that was made in the presence of counsel as to
approving the plan, subject to post approval items and two
signatures;
2. Approving the modifications; and
3. A motion that the township not take an active role in the
Appeal.
As you know, the minutes must accurately reflect what happened
at the meeting and what is being proposed has no connection with
the actual motions that were passed.
What should have been a simple matter of housekeeping has turned
into a monster. I am happy to have a meeting with you, Attorney
Mislitsky, myself and Attorney Wolf and straighten this out once
and for all and either call it an "amendment" or "correction" to
the minutes and avoid litigation involving the minutes.
I appreciate your continuing cooperation. South Middleton
Township staff has always addressed these matters promptly and
efficiency and I do not understand the current problem.
Very truly yours,
SAIIIIS, LOWER & LINDSAY
L Aobert C. Saidis
RCS/pm
CC: Richard P. Mislitsky, Esq.
Raymond Diehl
LAW OFFICES
SAIDIS, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
JOHN E. SLIKE CARLISLE, PENNSYLVANIA 17013
ROBERT C. SAIDIS TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
JAMES. D. FLOWER, JR. EMAIL: attorney@sfl-law.com
CAROL J. LINDSAY www.sfl-law.com
JOHN B. LAMPI
MICHAEL L. SOLOMON
GEORGE F. DOUGLAS, III
DEAN E. REYNOSA
THOMAS E. FLOWER
MARYLOU MATAS
SUZANNE C. HIXENBAUGH
March 24, 2008
Via email manatee asmiddleton.com
Barbara Wilson
South Middleton Township
520 Park Drive
Boiling Springs, PA 17007-9536
CAMP HILL OFFICE
2109 MARKET STREET
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
REPLY TO CARLISLE
Re: Supervisors Minutes - February 14, 2008
Dear Barb:
Over the weekend I had an opportunity to review the verbatim
part of the minutes. I did locate the subsequent motions.
Our review of the minutes indicated that the actual motion was
that South Middleton Township "not take an active role in any
appeal" rather than "lead role". As this is something that
clearly can be cured by the township, we certainly will not
object.
I still think that we should reconcile the two motions on the
approval so that there is no conflict.
Very t ly yours,
SADD1 FLOWER & LINDSAY
Rode Saidis
RCS/pm
CC: Richard P. Mislitsky, Esq.
Raymond Diehl
JOHN E. SLIKE
ROBERT C. SAIDIS
JAMES D. FLOWER, JR.
CAROL J. LINDSAY
JOHN B. LAMPI
MICHAEL L. SOLOMON
GEORGE F. DOUGLAS, III
DEAN E. REYNOSA
THOMAS E. FLOWER
MARYLOU MATAS
SUZANNE C. HIXENBAUGH
LAW OFFICES
SAIDIS, FLOWER & LINDSA f
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
EMAIL: attorney@sfl-law.com
www.sfl-law.com
April 7, 2008
Barbara Wilson
South Middleton Township
520 Park Drive
Boiling Springs, PA 17007-9536
Re: Supervisors Minutes - February 14, 2008
Dear Barb:
Thank you for your correspondence of March 31, 2008.
CAMP HILL OFFICE
2109 MARKET STREET
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
REPLY TO CARLISLE
My letter written out of frustration on March 21, 2008, still states
my position. The motions need to be straightened out or the
litigation is also going to concern the motions that were passed by
the Board. The verbatim minutes are of little assistance.
Again, I think the easiest solution is for Rich, Nate and I to sit
down and see if we can come up with a stipulation as to the motions,
which then will clarify the issue to be presented to the Court.
Otherwise, the actual actions of the Supervisors are going to be
called into question with the accompanying expense, time and
inconvenience. The Diehls do not want that for themselves nor for the
township.
Unfortunately, only the township can take the initiative to get this
matter straightened out, which to this point has not been forthcoming.
Very truly yours,
SAIDIS, FLOWER & LINDSAY
Robert C. Saidis
RCS/pm
CC: Richard P. Mislitsky, Esq.
Raymond Diehl
RAYMOND E. DIEHL
and GENEVIEVE A.
DIEHL, husband and
wife,
Plaintiffs
V.
SOUTH MIDDLETON
TOWNSHIP and JOHN
MCADOO and CATHY
MCADOO, Husband and
Wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-1234 CIVIL TERM
IN RE: MOTION FOR SANCTIONS
AMENDED ORDER OF COURT
AND NOW, this 4t` day of November, 2008, the prior order of court filed
in the above matter, dated October 15, 2008, is hereby amended to reflect that the hearing
scheduled for December 23, 2008, at 1:30 p.m., shall be held in Courtroom No. 1. In all
other respects, the prior order of court shall remain in full force and effect.
BY THE COURT,
J.
Robert C. Saidis, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
/`_ o 5-- 6 Pr
7tr" :3I WJ S- AON 9402
lti? fa_i i J
;....:;_ -FITH
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
John and Cathy McAdoo
Richard P. Mislitsky, Esq.
1 West High Street
Suite 208
P.O. Box 1290
Carlisle, PA 17013
Counsel for Defendant
South Middleton Township
:rc
RAYMOND E. DIEHL and GENEVIEVE
DIEHL, Husband and Wife,
Plaintiffs
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2008-1234 Civil Term
SOUTH MIDDLETON TOWNSHIP and CIVIL ACTION -
JOHN MCADOO and CATHY MCADOO IN MANDAMUS AND EQUITY
Husband and Wife,
Defendants
MOTION TO COMPEL DEPOSITION
AND NOW, come Raymond E. Diehl and Genevieve Diehl, by and
through their counsel, Saidis, Flower & Lindsay, and petitions your
Honorable Court as follows:
SAMIS,
I I114D5AY
ATIOWN WS•AT uw
26 West High Street
Carlisle, PA
1. The plaintiffs are Raymond E. Diehl and Genevieve Diehl,
husband and wife, adult individuals who reside at 401
Myers Road, Boiling Springs, South Middleton Township,
Pennsylvania 17007.
2. Defendant, South Middleton Township, is a township of the
Second Class with its principal place of business at 520
Park Drive, Boiling Springs, South Middleton Township,
Pennsylvania, 17007
3. Defendants, John McAdoo and Cathy McAdoo, husband and
wife, are adult individuals who reside at 1538 Holly Pike,
Carlisle, South Middleton Township, Pennsylvania 17015.
4. Plaintiffs filed a Complaint in Mandamus and Equity on
February 25, 2008.
5. On August 19, 2008, Plaintiffs served upon Richard P.
Mislitsky, Solicitor for South Middleton Township, a
Notice of Taking Deposition on Oral Examination under
Pa.R.C.P. No. 4007.1 on September 16, 2008. A copy of
this Notice is attached as Exhibit "A".
6. On September 2, 2008, Richard P. Mislitsky informed
Plaintiffs that he would not appear for a deposition. A
copy of this letter is attached as Exhibit "B".
7. On September 10, 2008, Plaintiffs filed a Motion for
Sanctions on which your Court entered an order scheduling
a hearing on December 23, 2008 in Courtroom 2.
8. For judicial economy, Plaintiffs request the court
schedule a hearing on the Motion to Compel the Deposition
of Richard Mislitsky, Esquire, with the scheduled hearing
for the Motion for Sanctions on December 23, 2008 in
Courtroom 2.
WHEREFORE, Plaintiffs pray this Honorable Court to enter an
SAIDIS,
FLOWER &
LINDSAY
A770BW6'15.AT uw
26 West High Street
Carlisle, PA
Order requiring Richard P. Mislitsky, Esq. to submit to an oral
deposition, schedule the hearing on this request for December 23,
2008, together with such other further relief as the Court deems just
and proper.
SAIDIS,„E & LINDSAY
Dated: ` Z vU LR0ber C. Saidis, Esquire
Attorney for Plaintiffs
Supreme Court ID #21458
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
717-243-6222
CERTIFICATE OF SERVICE
I, Phyllis McCoy, hereby certify that a copy of the Motion
to Compel Deposition was served this date via United States
Mail, postage prepaid, addressed as follows:
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Richard P. Mislitsky, Esq.
1 West High Street, Suite 208
P. O. Box 1290
Carlisle, PA 17013
Personally and as counsel for South Middleton Township
SAIDIS, FLOWER & LINDSAY
Dated:
hyllis AcCoy
SAIDIS,
FLOWER &
LINDSAY
AnORNEYS-ATtaw
26 West High Street
Carlisle, PA
VERIFICATION
I verify that the statements made herein are true and
correct. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
DATED: ?Z Q-e
SAMIS,
FLOWER &
LINDSAY
ATIORNEETS-AT•uw
26 West High Street
Carlisle, PA
•_ Robert C. Saidis
ROBERT C. SAIDIS, ESQUIRE
Attorney-at-Law
26 West High Street
Carlisle, PA 17013
717-243-6222
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
CIVIL ACTION - LAW
RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL, Husband
and Wife,
Plaintiffs
V.
SOUTH MIDDLETON TOWNSHIP, and
JOHN MCADOO and
CATHY MCADOO, Husband and Wife,
Defendants
NO. 08-1234 Civil Term
JURY TRIAL DEMANDED
NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION
UNDER Pa.R.C.P. NO. 4007.1
NOTICE IS HEREBY GIVEN that pursuant to Pennsylvania Rule of Civil Procedure
No. 4007. 1, the deposition of Richard P. Mislitsky will be taken on oral examination at 26 West
High Street, Carlisle, Pennsylvania on September 16, 2008, beginning at 10:00 am., and at any
and all adjournments thereof.
Date: August 19, 2008
Robert C. Saidis, Esquire
Attorney T.D. No. 21458
Attorney for Plaintiffs
I z.ichard P. Mislitsky
)aniel J. Menniti, Esquire'
Law Office of
Richard P. Mislitsky
One West High Street
P.O. Box 1290
Carlisle, Pennsylvania 17013
Telephone (717) 241-6363 Fax (717) 249-7073
September 2, 2008
Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
RE: Diehl v. SMT
Dear Robert:
- " V VVVW
Karl M. Ledebohm, Esquire2
Mark W. Allshouse, Esquire3
In light of the action taken by the Board of Supervisors at its regularly scheduled meeting
on August 28, please be advised that I will not appear for a deposition without a. Motion to
Compel. Accordingly, I will not appear for deposition.
If you have any questions, feel free to contact me.
Sincerely,
P. Mislitsky
RPM/jcm
cc: Barbara Wilson
Nathan C. Wolf, Esquire
Rick Reighard
1 Of Counsel - Practice: inaepenaently as Daniel J. Menniti, Esquire
2 Of Counsel - Practices independently as Karl M. Ledebohm, Esquire
3 Of Counsel - Practices independently as Christian Lawyers Solutions, LLC
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RAYMOND E. DIEHL and GENEVIEVE IN THE COURT OF COMMON PLEAS OF
DIEHL, Husband and Wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
i
v. NO. 2008-1234 Civil Term
SOUTH MIDDLETON TOWNSHIP and CIVIL ACTION -
JOHN McADOO and CATHY McADOO IN MANDAMUS AND EQUITY
Husband and Wife,
Defendants
ORDER OF COURT
AND NOW, this day of e 2008, upon
consideration of the within Motion, a Rule is issued upon defendants
to show cause, if any, why the within Motion should not be granted.
The hearing on the Motion to Compel the Deposition of Richard P.
Mislitsky, Esquire, shall be consolidated with the hearing on the
Motion for Sanctions scheduled for the 23rd day of December, 2008 in
Courtroom 2 of the Courthouse in Carlisle, Pennsylvania.
SAMIS,
LINDSAY
915E EMA uw
26 West High Street
Carlisle, PA
BY THE COURT,
h-ys?,ewsa?d ? _$olb?ri
'Vil
I I • i Nd 6- 330 gooZ
A8VIC1,4C',j id 3i- . (}
RAYMOND E. DIEHL and GENEVIEVE IN THE COURT OF COMMON PLEAS OF
DIEHL, Husband and Wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. : NO. 2008-1234 Civil Term
SOUTH MIDDLETON TOWNSHIP and CIVIL ACTION -
JOHN McADOO and CATHY MCADOO, IN MANDAMUS AND EQUITY
Husband and Wife,
Defendants
MOTION FOR PROTECTIVE ORDER
OF THE DEFENDANT, SOUTH MIDDLETON TOWNSHIP
AND NOW COMES Richard P. Mislitsky, the duly appointed Solicitor for South
Middleton Township (SMT), and at the direction of the governing body SMT and on behalf of
his client files this Motion for Protective Order and in support thereof avers as follows:
1. This matter has been assigned to the Honorable J. Wesley Oler, Jr. A hearing is
scheduled for December 23, 2008 at 1:30 p.m.
2. There is a request to consolidate this Motion with the Plaintiffs' Motion being
addressed at 1:30 p.m.
3. The underlying action was commenced by the Plaintiffs with the filing of a
Complaint in Mandamus and in Equity on February 25, 2008.
4. At all times material hereto, Richard P. Mislitksy, Esquire ("Mislitsky" pr
"solicitor"), the intended deponent, is the duly appointed Solicitor for South Middleton
Township charged with the obligation of defending the Township and its officials pursuant to 53
P.S. 66101-66103.
5. On February 14, 2008, the governing body of South Middleton Township voted
unanimously to require the consent of the landowner prior to recording the subdivision plan filed
by the Plaintiffs herein.
6. Plaintiffs' Action in Mandamus demands that SMT record a subdivision plan over
the objections of the landowner.
7. On or about August 18, 2008, Plaintiff mailed a Notice of Deposition scheduling
the deposition of the Township solicitor.
No subpoena has ever been served upon the township solicitor.
9. The Notice of Deposition did not set forth any reason, or the necessity, for taking
the testimony of opposing counsel in the instant action.
10. The governing body of South Middleton Township, by unanimous vote during its
regularly scheduled meeting on August 28, 2008, directed Mislitsky to file a Motion for
Protective Order opposing the giving of his sworn testimony.
11. On August 28, 2008 and thereafter, there was no basis for filing a Motion for
Protective Order in that Plaintiffs had not served a subpoena on the intended non-party deponent,
as required by the Pennsylvania Rules of Civil Procedure.
12. As a courtesy to counsel, Mislitsky advised Plaintiffs' counsel that, in light of the
aforesaid direction of the governing body, Mislitsky would not appear for deposition.
13. On September 8, 2008, Plaintiff filed a Motion for Sanctions.
14. On September 30, 2008, SMT filed an Answer to said Motion.
15. On or about December 4, 2008, Plaintiffs filed a Motion to Compel Deposition
(Discovery).
16. On or about December 9, 2008, the Honorable J. Wesley Oler, Jr. issued a Rule
on SMT and consolidated Plaintiffs' Motion with Plaintiffs' prior Motion for Sanctions which
was scheduled for hearing on December 23, 2008.
17. Our federal courts have addressed the issue before this Honorable Court and has
established three criteria that a moving party must prove before opposing counsel must provide a
deposition, or other discovery. See Shelton v. AM Corp. 805 F.2d 1323 (1986).
18. In Shelton, a case adopted by all federal courts including the 3`d Circuit, the
elements established by the Court are: (1) no other means exist to obtain the information that to
depose opposing counsel, (citation omitted); (2) the information sought is relevant and
nonpriviledged; and (3) the information is crucial to the preparation of the case.
19. Pennsylvania Rules of Civil Procedure set forth certain parameters within which
discovery can be conducted.
20. Pa. R.C.P. 4003.1(a) prohibits discovery of privileged information.
21. As solicitor for South Middleton Township and its officials, a solicitor is privy to
and prohibited from disclosing privileged information.
22. Pa. R.C.P. 4003.3 protects from discovery various information from a party's
attorney.
23. Pa. R.C.P. 4011 prohibits discovery which is sought in bad faith.
24. SMT affirmatively avers that, in addition to the reasons set forth in the preceding
paragraphs, a deposition of opposing counsel is prohibited if the information sought can be
obtained through other means.
25. SMT believes and therefore avers that for the reasons set forth in paragraphs 14
through 18, the deposition herein at issue is sought in bad faith and/or for the purpose of eliciting
information insulated from discovery and is therefore prohibited by Rule 4001 (a) (b) and (c).
26. Plaintiffs' Motion for Sanctions filed on September 10, 2008 demands, among
other relief, that the duly appointed township solicitor be disqualified and prevented from
representing SMT in this matter. Paragraph 13.(3) reads as follows:
(3) An Order entered pursuant to the Professional Rules of Professional Conduct
3.7, directing that the Township Solicitor, Richard P. Mislitsky, is prohibited from
acting as an advocate at trial in the above captioned matter.
27. It is affirmatively averred that Plaintiffs' attempt to obtain deposition testimony
from Mislitsky is an attempt to disqualify Mislitsky. No other conclusion can be reached in that
the alleged reasons raised by Plaintiffs are totally without merit.
28. The Plaintiffs' alleged necessity for taking the deposition testimony of the
Township Solicitor is set forth in paragraph 9 of Plaintiffs' Motion for Sanctions.
29. Paragraph 9 of the aforesaid Motion states in pertinent part that the need for the
Solicitor's deposition is to determine "... the facts and circumstances surrounding the action of
South Middleton Township on February 14, 2008 ..."
30. It is respectfully submitted that said information can be determined in a more
reliable and less intrusive manner. The entire discussion occurring at the meeting on February
14, 2008 is set forth in the verbatim transcription of the meeting. In addition, the audio tapes of
the meeting have been preserved and are available to the Plaintiffs and in fact, have already been
made available to the Plaintiffs.
31. Paragraph 9 of Plaintiffs' Motion for Sanctions further states that the Solicitor's
testimony is necessary to determine "...the facts and circumstances surrounding ... the motion
which was passed outside the presence of the parties ..."
32. As aforesaid, everything that was said during the Board's discussion of the
subdivision plan, including discussions outside the presence of the parties, is included in the
verbatim transcription of the minutes of the meeting, as well as, on the audio tapes which were
already made available to the Plaintiffs and have been preserved by SMT.
33. It is respectfully submitted that IF Plaintiffs' real intention is to determine the
"facts and circumstances" of ANYTHING occurring at the aforesaid meeting, the verbatim
transcription of the minutes and the audio tapes of the meeting are far more reliable, and far less
intrusive, than the oral testimony of the Township Solicitor.
34. Plaintiffs' Motion for Sanctions in paragraph 9 also alleges that the deposition of
the Solicitor is necessary to establish "... the meaning of the above-quoted motion ..." (Please
refer to paragraph 8 of Plaintiffs' Motion for Sanctions for reference to the motion brought into
question.) The "meaning" of the Boards' motion can ONLY be explained by the Board of
Supervisors who voted upon the motion, and more particularly, the Supervisor who made the
motion brought to issue by the Plaintiffs. Other than what may be stated in the verbatim
transcription of the minutes, only the person making the motion can explain the "...meaning of
the motion."
35. It is respectfully submitted that taking testimony from the only person who can set
forth the meaning of the motion is far less speculative and far less burdensome to SMT than the
oral testimony of its solicitor.
36. Plaintiffs also allege in the aforementioned paragraph 9, that the solicitor's
testimony is necessary to clarify that part of the Board's motion which states "... anything else
the Solicitor deems important to our [SMT] case." In response to the same inquiry made by the
Plaintiffs, the Township Solicitor provided the Plaintiffs with correspondence dated February 20,
2008 and May 21, 2008 stating, as an officer of the Court, what the solicitor deemed important to
the Township's case. Both letters are attached hereto and collectively marked Exhibit A.
37. It is obvious that the alleged need for the deposition of Mislitsky can be satisfied
in a far less intrusive/burdensome manner to South Middleton Township, and in a far more
reliable matter by:
• review of the verbatim minutes of the Board meeting;
• listening to the audio tapes of the said meeting; and
• taking the testimony of the only person who can adequately explain the motion
called into question by the Plaintiffs.
• referring to the correspondence
38. Since Plaintiffs can obtain the allegedly necessary information by means which
are clearly more reliable and less burdensome to South Middleton Township, the only reasonable
conclusion that can be drawn is that the Plaintiffs' attempt to depose opposing counsel is
motivated by reasons other than those sworn to by the Plaintiffs.
39. It is believed and therefore averred that Plaintiffs' discovery is intended to
disqualify the Township's solicitor in the instant litigation as Plaintiffs set forth in paragraph
13.(3), or in the alternative, intended to inquire into matters protected from discovery by
privilege, or into matters otherwise beyond the scope of permissible discovery.
WHEREFORE, South Middleton Township requests a Motion for Protective Order
preventing its Solicitor from providing deposition testimony in the instant matter.
Respectfully submitted,
Dated:
?Richard P. Mislitsky, Esquire
Attorney for Defendant, South Middleton Township
Supreme Court ID #28123
1 West High Street, Suite 208
P.O. Box 1290
Carlisle, PA 17013
VERIFICATION
I verify that the statements made herein are true and correct to the best of my knowledge.
I understand that false statements made herein are made subject to the penalties of 18 Pa.C.S. §
4909 relating to unsworn falsification to authorities.
Dated: Z Z-GY 4, ; P. lk
RICHARD P. MISLITSK
i?li,trri 11. Nli itsky
Cane west 11i'.!11 Street
P.O. Box 1290
Carlisle, Penusylvarlia [7013
I ent?olll ( 1 7) -14 I -(? - I)" r,t.C ?7 17)
- -r`, / , i _i
Richard P. Mislitskv
Daniel J. Nlcnniti, EsLtuire!
February 20, 2005
Rohert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West I-li-h Street
Carlisle, PA 17013
RE: R.C. and C.A. Diehl
Final Minor Subdivision Plan
#07-15
Dear Robert:
Karl M. Ledebohnl, la(lrlire'
:lark W. A116house, Inquire'
Please consider this letter together with Ms. Wilson's letter and the Board of Supervisors
Plan Review Form dated February 15, 2005. Please also consider this letter together with the
conlrlulllication from MS. Wilson (irlcluding attachments) as notice pursuant to the N111C.
Your clients' plan was, as you ]:flow, approved subject to acceptance of certain
conditions. The Planning Department memo sets forth several conditions. I am addressing the
"condition" that the fee owner, John }-l. and Cathy S. McAdoo (McAdoo), sign the plan prior to
recording the plan.
The Township acknowledges that McAdoo has and continues to refuse to sign the plan.
The Township suggests that your clients and Nor. McAdoo resolve your diflererlccs.
Whether the owner's signature is required prior- to recording the plan is a matter of first
impression in South Middleton Township, and perhaps the Commonwealth. The Board of'
Supervisor's decision to require both signatures is consistent with prior South Middleton
Township practices and the rcconmiendation of the South Middleton Township Planning
Department. There were other considerations. I will address them. Please also refer to the
minutes ofthe Board Of Supervisors meeting*
First let me reiterate that the Co111111onwcalth Court decision in Boro h ofJcnkintow_n1 v.
Hoard of Commissioners. Abington Tokunshilr) 585A. )(1. 136 (2001) ..is not on point with this
matter. In Borou-h of Jenkintown v. BL)ard of Commissioners Abinf7toll Townsllin the owner
agreed to recording, or at least did not object during the years the matter was in the judicial
1 OI'Couusel a DEFENDANT'S nie11. Nlennili, Esquire
Of Counsel EXHIBIT M. Ledebohm, Esquire
`Of C ounsel - I'll ? A III LitGCyers solutions, LLC
P, w -'o(2
systcin. A fair reading, of that case shows that there are other distin;,uiShirlg leatures. In our
Matter. the owpers' refusal to sign the plan certainly preselltS LIS with Suftlctently C1l11ereut facts
so as to conclude that it is not precedent in the instant dispute.
You know that McAdoo's le?,al counsel has raised several issues relating, to the validity
of tile a-11-eelnents upon which you I-cly (luck of consideration and interpretation of certain
sections of the agreement). If any of McAdoo's issues have merit, your clients have no standing
to even request subdivision approval. The Board of Supervisors believes that the validity of the
agreement is a conditional precedent to consideration of the plan. I acknowledge that the Board
approved the plan. However, the Board approved the plan (with conditions) pursuant to
your specific request.
In sum, in addition to the issues raised in the Plannin?( Department's memo, the action of
the Board included:
• The aforementioned decision is not precedent in this matter;
• The Township acted consistent with prior practice; and
• Until challenges to the underlying agreement(s) are resolved, your clients' right to
request subdivision approval is in doubt.
I am available for any questions you or your clients niay have
Sincerely,
i
Rich,n i d P. Mislitsky
RPM/dls
cc: John H. and Cathy S. McAdoo
Barbara Wilson, Manager
Wolf and Wolf
Law Office of
Richard P. Mislitsky
One West High Street
P.O. Box 1290
Carlisle, Pennsylvania 17013
Telephone (717) 241-6363
Richard P. Mislitsky
Daniel J. Menniti, Esquire'
Fax (717) 249-7073
May 21, 2008
Karl M. Ledebohm, Esquire'
Mark W. Allshouse, Esquire3
Via U.S. Mail & Fax to 717-243-6486
Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
Via U.S. Mail & Fax to 717-241-4437
Nathan C. Wolf, Esquire
Wolf & Wolf
10 West High Street
Carlisle, PA 17013
RE: McAdoo/Diehl
Gentlemen:
I am responding to Robert's correspondence dated May 15.
In my opinion, it is impossible for me to stipulate that what the supervisors did was not
done. If I understand your request correctly, you are asking me to disregard the action the
supervisors have taken. Gentlemen, I cannot do that. Only the Board of Supervisors could
rescind a prior action.
However, I have a solution.
Robert's letter states, "Obviously, only Rich can testify as to what the Solicitor deems
important to the township case." I am ready, willing, and able to stipulate that what I thought
was important to the case is outline of my letter of February . The things in t a are what
in fact I deemed important.
If my recollection is correct, the reference to "bantering" is all of the discussion that went
back and forth between the attorneys that evening.
I have not had the opportunity to have this offer approved by the Board of Supervisors. I
am absolutely confident that this will not be a problem. They should have no difficulty in
stipulating to the facts.
Of Counsel - Practices incep.ndeatly as Dani-a J. Menniti, Esquire
3 z Of Counsel - Practices as ?.C.trl M. Ledebohm, Esquire
Of Counsel - Practices ir:.aepcn, vfjAy :rjz C hT isdan Lawyers Solutions, LLC
mail.
I am directing my staff to fax this letter to both of you. A hard copy will follow in the
RPM/jcm
cc: Board of Supervisors (with enclosure of 5/15/08 letter to NCW)
Barbara Wilson (with enclosure of 5/15/08 letter to NCW)
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Motion for Protective Order was served this date by
hand delivery to the following offices:
Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
Nathan C. Wolf, Esquire
10 West High Street
Carlisle, PA 17013
Richard P. Mislitsky
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Dated: /Wad/Q y ?4?Q?k?
By:
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RAYMOND E. DIEHL
and GENEVIEVE A.
DIEHL, husband and
wife,
Plaintiffs
V.
SOUTH MIDDLETON
TOWNSHIP and JOHN
McADOO and CATHY
MCADOO, Husband and
Wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-1234 CIVIL TERM
IN RE: MOTION FOR SANCTIONS
ORDER OF COURT
AND NOW, this 23rd day of December, 2008, upon consideration of
Plaintiffs' Motion for Sanctions and Plaintiffs' Motion to Compel Deposition, and
following a hearing held on December 23, 2008, and counsel having advised the court's
tipstaff that they do not wish to remain to conclude their argument at the conclusion of
the hearing and will submit briefs in lieu thereof, the record is deemed closed and counsel
are afforded a period of 7 days within which to submit any additional briefs.
BY THE COURT,
/Robert C. Saidis, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
4esley Oler,., J.?
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06-than C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
John and Cathy McAdoo
ichard P. Mislitsky, Esq.
1 West High Street
Suite 208
P.O. Box 1290
Carlisle, PA 17013
Counsel for Defendant
South Middleton Township
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RAYMOND E. DIEHL
and GENEVIEVE A.
DIEHL, husband and
wife,
Plaintiffs
V.
SOUTH MIDDLETON
TOWNSHIP and JOHN
McADOO and CATHY
MCADOO, Husband and
Wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-1234 CIVIL TERM
IN RE: PLAINTIFFS' MOTION FOR SANCTIONS,
PLAINTIFFS' MOTION TO COMPEL DEPOSITION,
and DEFENDANT SOUTH MIDDLETON TOWNSHIP'S
MOTION FOR PROTECTIVE ORDER
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 8"' day of January, upon consideration of Plaintiffs' Motion for
Sanctions, Plaintiffs' Motion To Compel Deposition, and Defendant South Middleton
Township's Motion for Protective Order, and following a hearing on Plaintiffs' motions
on December 23, 2008, Plaintiffs' motions are denied and Defendant South Middleton
Township's Motion for Protective Order is deemed moot.
BY THE COURT,
'' Robert C. Saidis, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
J esley Oler J.
VINVAIAWBd
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30V (MW
"Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
John and Cathy McAdoo
Richard P. Mislitsky, Esq.
1 West High Street
Suite 208
P.O. Box 1290
Carlisle, PA 17013
Counsel for Defendant
South Middleton Township
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341
RAYMOND E. DIEHL and GENEVIEVE
DIEHL, Husband and Wife,
Plaintiffs
V.
SOUTH MIDDLETON TOWNSHIP and
JOHN MCADOO and CATHY MCADOO,
Husband and Wife,
Defendants
TO THE PROTHONOTARY:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2008-1234 Civil Term
CIVIL ACTION -
IN MANDAMUS AND EQUITY
PRAECIPE
Please mark the Plaintiffs' Action in Mandamus against South Middleton Township
discontinued without prejudice.
Date r
SAIDIS,
NLAWEIt &
LINDSAY
26 West High Street
Carlisle, PA
Respectfully submitted,
Z-R-o`ber-t. Saidis, Esquire
Attorney for Plaintiffs
Supreme Court ID #21458
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
717-243-6222
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
D for JURY trial at the next term of civil court.
® for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in fuU) (check one)
XD Civil Action -Law
El Appeal from arbitration
RAYMOND E. DIEHL and GENEVIEVE A. DIEHL,
Husband and Wife, (other)
(Plaintiff)
Vs. The trial list will be called on _
and
JOHN MCADOO and CATHY MCADOO,
Husband and Wife,
Vs.
(Defendant)
Trials commence on
Pretrials will be held on _
(Briefs are due S days before pretrials
No. 2008-1234 Civil Tetra
Indicate the attorney who will try case for the party who files this praecipe:
Nathan C. Wolf 10 West High Street, Carlisle, PA 17013
Indicate trial counsel for other parties if known:
Robert C. Saidis 26 West High Street. Carlisle. PA 17013
This case is ready for trial. Signe
Print Name: athan C. Wolf, Esquire
Date:_ 2 z5 J Attorney for: Defendant
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RAYMOND E. DIEHL and IN THE COURT OF COMMON PLEAS OF
GENEVIEVE A. DIEHL, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
JOHN MCADOO and CATHY
MCADOO,
Defendants NO. 08-1234 CIVIL TERM
ORDER OF COURT
AND NOW, this 3`d day of March, 2009, a pretrial conference in the above matter
is scheduled for Monday, May 11, 2009, at 1:30 p.m., in chambers of the undersigned
judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall
be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the
pretrial conference.
A NONJURY TRIAL in the above matter is scheduled for Wednesday June 17,
2009, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle,
Pennsylvania.
?Robert C. Saidis, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
?Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
12CF1& M"'&LL
Court Administrator
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BY THE COURT,
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RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL,
Plaintiffs
V.
JOHN MCADOO and CATHY
MCADOO,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-1234 CIVIL TERM
ORDER OF COURT
AND NOW, this 5 h day of March, 2009, upon agreement of counsel, the nonjury
trial previously scheduled in this matter for June 17, 2009, is rescheduled to Wednesday,
July 8, 2009, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle,
Pennsylvania. The pretrial conference scheduled for Monday, May 11, 2009, at 1:30
p.m., in chambers of the undersigned judge, shall remain as previously scheduled.
Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at
least five days prior to the pretrial conference.
BY THE COURT,
PC/
J. /Wesley Oler, r., J.
? Robert C. Saidis, Esq.
26 West High Street
Carlisle, PA 17013
Z Atto ey for Plaintiffs
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
Court Administrator
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RAYMOND E. DIEHL and IN THE COURT OF COMMON PLEAS OF
GENEVIEVE A. DIEHL, Husband CUMBERLAND COUNTY, PENNSYLVANIA
and Wife,
Plaintiffs
v.
CIVIL ACTION - LAW
SOUTH MIDDLETON TOWNSHIP and
JOHN MCADOO and CATHY MCADOO,
Husband and Wife,
Defendants NO. 08-1234 CIVIL TERM
PRETRIAL CONFERENCE
A pretrial conference was held in the chambers of
Judge Oler in the above-captioned case on May 11, 2009. Present on
behalf of the Plaintiff was Robert C. Saidis, Esquire; with him was
Jason E. Kelso, Esquire. Present on behalf of the Defendants was
Nathan C. Wolf, Esquire.
This is an action for specific performance filed by
Plaintiffs who have an option to purchase certain land from
Defendants, and Defendants have filed a counterclaim in the nature
of a declaratory judgment action seeking relief on the basis that
the amount of land which can be legally conveyed to the Plaintiffs
is less than that provided for in the option.
This will be a nonjury trial of an estimated duration
of one day. By separate order of courts, the nonjury trial has
been scheduled for July 8, 2009.
One issue which may arise by way of a motion in limine
filed by Plaintiffs is as to whether a prior denial of Defendants'
motion for judgment on the pleadings in Defendants' declaratory
judgment counterclaim disposes of the issue as to that claim.
A second issue in the case which may arise is whether
the Plaintiffs will be permitted to present parol evidence as to
the intent of the original parties to the lease in terms of the
scope of the option.
• 4
With respect to settlement negotiations, it does not
appear that this case will be settled without trial.
By the Court,
Robert C. Saidis, Esquire
Jason E. Kelso, Esquire
26 West High Street
Carlisle, PA 17013
For the Plaintiffs
J.,Xesley Ole Jr.,
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Nathan C. Wolf, Esquire
10 West High Street
Carlisle, PA 17013
For the Defendants
John and Cathy McAdoo
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2009 t `1' s 4 Ah I I
RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL,
Plaintiffs
v
JOHN MCADOO and CATHY
MCADOO,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
08-1234 CIVIL TERM
IN RE: NONJURY TRIAL
ORDER OF COURT
AND NOW, this 8th day of July, 2009, upon
consideration of Plaintiff's Complaint, Defendant's Answer with
New Matter and Counterclaim, and Plaintiff's Reply to Answer to
New Matter and Answer to Counterclaim, and following a nonjury
trial, the record is declared closed, and the matter is taken
under advisement.
By the Court,
? Robert C. Saidis, Esquire
Jason E. Kelso, Esquire
26 West High Street
Carlisle, PA 17013
For Plaintiffs
Nathan C. Wolf, Esquire
10 West High Street
Carlisle, PA 17013
For Defendants
:mae
(20 r rn.'a t
OF THE P ??- h.v7ARY
2009 I?aL -9 AN I I : 12'
RAYMOND E. DIEHL IN THE COURT OF COMMON PLEAS OF
and GENEVIEVE A. CUMBERLAND COUNTY, PENNSYLVANIA
DIEHL,
Plaintiffs
V. CIVIL ACTION - LAW
JOHN MCADOO and
CATHY MCADOO,
Defendants NO. 08-1234 CIVIL TERM
IN RE: BRIEFS
ORDER OF COURT
AND NOW, this 16`h day of July, 2009, it appearing that counsel for Plaintiffs has
submitted a brief on behalf of Plaintiffs, counsel for Defendants may also submit a brief,
on behalf of his clients within seven days of the date of this order.
BY THE COURT,
Z Robert C. Saidis E
sq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
20 3 J . E 6°? !. 2 2
Cam;
RAYMOND E. DIEHL : IN THE COURT OF COMMON PLEAS OF
and GENEVIEVE A. : CUMBERLAND COUNTY, PENNSYLVANIA
DIEHL,
Plaintiffs
CIVIL ACTION
V.
JOHN McADOO and
CATHY MCADOO,
Defendants : NO. 08-1234 CIVIL TERM
ADJUDICATION
BEFORE OLER, J.
DECREE
AND NOW, this 13'h day of August, 2009, upon consideration of Plaintiffs'
complaint and Defendants' counterclaim, and following a bench trial on July 8,
2009, and the submission of briefs on behalf of the parties, and for the reasons
stated in the accompanying opinion, it is ordered, adjudged and decreed as
follows:
1. On Plaintiffs' complaint, the court finds in favor of
Plaintiffs Raymond E. Diehl and Genevieve A. Diehl and
against Defendants John McAdoo and Cathy McAdoo, and
Defendants are enjoined to:
a. Execute within 20 days of service by
Plaintiffs any and all documents required by any
governmental authority to secure final approval
and recordation of the South Middleton
Township Subdivision Plan 07-5 of Raymond E.
and Genieve A. Diehl;
b. Prepare and execute within 20 days of the
recording of the said subdivision plan a special
warranty deed conveying Lot IA on the
subdivision plan to Plaintiffs, and serve the same
upon Plaintiffs for recording; and
c. Calculate within 15 days of the date of this
order an accurate amount of taxes owed by
Plaintiffs pursuant to the ground lease/option to
purchase sub judice, and serve the same upon
Plaintiffs, who shall pay to Defendants the
amount so calculated within 20 days of service.
2. On Defendants' counterclaim, the court finds in favor of
Plaintiffs Raymond E. Diehl and Genevieve A. Diehl and
against Defendants John McAdoo and Cathy McAdoo, and the
counterclaim is dismissed.
3. No other relief is afforded to either party.
BY THE COURT,
esley Oley- , J.
?kf
Aobert C. Saidis, Esq.
Sadis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
Xathan C. Wolf, Esq.
Wolf & Wolf
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
-/Richard S. Mislitsky, Esq.
Suite 208
1 West High Street
Carlisle, PA 17013
Courtesy Copy
J
n
/111, A
6
V
RAYMOND E. DIEHL : IN THE COURT OF COMMON PLEAS OF
and GENEVIEVE A. : CUMBERLAND COUNTY, PENNSYLVANIA
DIEHL,
Plaintiffs
CIVIL ACTION
V.
JOHN MCADOO and
CATHY MCADOO,
Defendants : NO. 08-1234 CIVIL TERM
ADJUDICATION
BEFORE OLER, J.
OPINION and DECREE OF COURT
OLER, J., August 13, 2009.
This equity case presents the issue of whether a landowner can be
compelled to cooperate in the transfer of land subject to an option to the optionee,
where the entire tract subject to the option can not be conveyed due to constraints
imposed by a municipality, but the vast majority of the land can be conveyed with
the municipality's approval. For the reasons stated in this opinion, the issue will be
resolved in the affirmative.
PROCEDURAL HISTORY
Plaintiffs Raymond E. Diehl and Genevieve A. Diehl filed the complaint
sub judice on February 25, 2008, alleging, inter alia, (a) that certain land which
they leased in Cumberland County, Pennsylvania, was subject to an option to
purchase in their favor and (b) that the owners of the land, John McAdoo and
Cathy McAdoo, had failed to cooperate in securing subdivision approval with
respect to conveyance of the optioned land.' Relief requested by Plaintiffs
1 Plaintiffs' Complaint, Count Two. Plaintiffs discontinued the action against the municipality in
which the land was located, on February 2, 2009.
included a direction that Defendants cooperate in the subdivision request2 and pay
attorney's fees to Plaintiffs for obdurate, vexatious and bad faith conduct.3
Defendants filed a counterclaim alleging, inter alia, that Plaintiffs had
breached an obligation to pay property taxes on the optioned land,4 that the option
lacked consideration,5 and that the entire optioned premises could not in any event
be legally conveyed.6 Defendants requested, inter alia, that the option be
terminated' and that Plaintiffs pay attorneys' fees to Defendants.g
A bench trial was conducted before the undersigned judge on July 8, 2009.
FINDINGS OF FACT
1. Plaintiffs are Raymond E. Diehl and Genevieve A. Diehl, adult
individuals residing in Boiling Springs, South Middleton Township, Cumberland
County, Pennsylvania.9
2. Defendants are John McAdoo and Cathy McAdoo, adult individuals
residing in Carlisle, South Middleton Township, Cumberland County,
Pennsylvania.10
3. Defendants are the owners of a 13-acre strip of land in South Middleton
Township, Cumberland County, Pennsylvania," which is about 250 feet in width
and 2500 feet in length. 12
2 Plaintiffs' Complaint, 139.
3 Plaintiffs' Complaint, 139.
4 Answer, New Matter and Counterclaim of Defendants McAdoo to Complaint, ¶90.
5 Answer, New Matter and Counterclaim of Defendants McAdoo to Complaint, ¶67, 82.
6 Answer, New Matter and Counterclaim of Defendants McAdoo to Complaint, ¶185-86.
Answer, New Matter and Counterclaim of Defendants McAdoo to Complaint, ¶96.
s Answer, New Matter and Counterclaim of Defendants McAdoo to Complaint, ¶96.
9 Plaintiffs' Complaint, ¶l; Answer, New Matter and Counterclaim of Defendants McAdoo to
Complaint, ¶l.
io Plaintiffs' Complaint, ¶2; Answer, New Matter and Counterclaim of Defendants McAdoo to
Complaint, ¶2.
11 Plaintiffs' Complaint, ¶9, Answer, New Matter and Counterclaim of Defendants McAdoo to
Complaint, ¶9.
2
4. This strip of land is subject to an option in Plaintiffs' favor. 13
5. The background of this option may be summarized as follows. The
optioned strip was originally part of a 152-acre tract owned by Daniel W. Johnson
and Joyce H. Johnson. 14 In 1995, the Johnsons sold an 85.5-acre portion of the
152-acre tract to Plaintiffs for $325,000.00 (Lot 2 on a certain subdivision plan)
and retained the balance of the 152-acre tract (Lot 1 on the subdivision plan). 15
Part of the land retained by the Johnsons consisted of the strip referred to above,
which they subjected to a ground lease/option to purchase in favor of Plaintiffs. 16
Plaintiffs' rights under the ground lease/option to purchase, a memorandum of
which was recorded, 17 ran with the land. 18
6. The said strip subject to an option to purchase (a) ran east to west, (b)
bordered the land sold outright to Plaintiffs on the south, and (c) connected the rest
of the land retained by the Johnsons on the west to a public road on the east. The
configuration of the land retained by the Johnsons was thus that of a dipper, with
the handle being subject to an option, and with Plaintiffs' land being situated
between the handle and the side of the vessel. 19
7. Under the April 24, 1995, ground lease/option to purchase, the term of
the instrument was 29 years. 20
1z Joint Exhibit 8, Trial, July 8, 2009.
13 Joint Exhibit 1, Trial, July 8, 2009.
14 Plaintiffs' Complaint, ¶4; Answer, New Matter and Counterclaim of Defendants McAdoo to
Complaint, ¶4.
15 Plaintiffs' Complaint, ¶5-7; Answer, New Matter and Counterclaim of Defendants McAdoo to
Complaint, ¶5-7.
16 Plaintiffs' Complaint, ¶8; Answer, New Matter and Counterclaim of Defendants McAdoo to
Complaint, ¶8.
17 Plaintiffs' Complaint, ¶10; Answer, New Matter and Counterclaim of Defendants McAdoo to
Complaint, ¶10.
"N.T. 71-71, Trial, July 8, 2009.
19 Joint Exhibit 8, Trial, July 8, 2009.
20 Joint Exhibit 1, 12, Trial, July 8, 2009.
3
8. Under the ground lease/option to purchase, exclusive possession of the
optioned premises was provided to the lessee/optionee during the instrument's
term.2
9. The ground lease/option to purchase also contained these pertinent
provisions:
3. Rent: Rent for the entire term shall be $1.00 the receipt of which is
hereby acknowledged.
4. Additional Rent: All charges, costs and expenses that Lessee
assumes or agrees to pay hereunder, together with all interest and penalties
that may accrue thereon in the event of the failure of Lessee to pay those
items, and all other damages, costs, expenses, and sums that Lessor may
incur or that may become due by reason of any default of Lessee or failure
by Lessee to comply with the terms and conditions of this Lease shall be
deemed to be additional rent, and, in the event of nonpayment when due,
Lessor shall have all the rights and remedies and Lessee all the obligations
as herein provided for failure to pay rent.
5. Taxes and Assessments: Lessee shall pay all taxes assessed and
levied against the Premises by any taxing authority. The same shall be
equitably pro-rated on the basis of acreage of the land comprising the
Premises as compared with the total acreage of the tract owned by Lessor
[of] which the Premises are a part. Further, Lessee shall pay all municipal
assessments, if any, levied on the basis of the frontage of the Premises on
Rockledge Drive.
6. Insurance: Lessee shall carry liability insurance, at their own
expense, in the sum of Three Hundred Thousand ($300,000.00) Dollars in
case of injury or damage to one person and Five Hundred Thousand
($500,000.00) Dollars in case of injury or damage to more than one person
in the same accident or occurrence.
7. Indemnity: Lessee shall indemnify Lessor against all expenses,
liabilities, and claims of every kind, including reasonable counsel fees,
made by or on behalf of any person or entity arising out of any injury or
damage happening on or about the Premises: except such expenses,
liabilities and claims arising out of Lessors use of the Premises as set forth
in Paragraph 10 hereof [relating to Lessee's exclusive possession of the
Premises].
8. Default or Breach: Lessee's failure to observe any condition
hereunder and Lessee's failure to cure such default within twenty (20)
days of written notice given by Lessor thereof shall constitute a default
hereunder.
9. Effect of Default: In the event of such default, Lessor shall have the
right to cancel and terminate this Lease. In such event, the prothonotary of
21 Joint Exhibit 1, ¶10, Trial, July 8, 2009.
4
any attorney of any court of record is hereby authorized to appear for and
to confess judgment in an amicable action of ejectment against Lessees,
their heirs, assigns, executors, administrators for the premises herein
described and to direct [t]he immediate issuing of a Writ of Possession
with Writ of Execution for costs, including reasonable attorneys' fees,
without asking leave of Court. 22
10. The option to purchase provision of the instrument provided as follows:
12. Lessee's Option To Purchase: During the term of this Lease,
provided Lessee is not in default, and provided that the Premises may
legally be conveyed to Lessee, Lessee is granted an option to require
conveyance of the Premises to Lessee for no consideration except that
Lessee shall be exclusively liable for and shall bear the cost of any
subdivision or other municipal approvals necessary to permit such
conveyance to occur. Title to the Premises shall be good and marketable[,]
and shall be free of all liens and encumbrances, with conveyance thereof to
be by special warranty deed. All expenses incident to such conveyance
except for deed preparation costs, shall be borne exclusively by Lessee,
including, but not limited to, transfer tax and recording costs.2
11. The ground lease/option to purchase contained an integration clause,24
provided that the instrument was binding upon the heirs and assigns of the
parties,25 and directed the recording of a memorandum of lease in accordance with
it.26
12. With actual knowledge of the ground lease/option to purchase,27 as well
as constructive notice of it as provided by the recorded memorandum of lease,28 on
January 30, 2001, Defendant John McAdoo purchased the 66.5-acre tract that had
been retained by the Johnsons, including the strip subject to the lease and option in
favor of Plaintiffs, from the Johnsons, along with his spouse, Defendant Cathy
McAdoo. 29
22 Joint Exhibit 1, ¶T3-9, Trial, July 8, 2009.
23 Joint Exhibit 1, ¶12, Trial, July 8, 2009.
21 Joint Exhibit 1, ¶13, Trial, July 8, 2009.
25 Joint Exhibit 1, ¶13, Trial, July 8, 2009.
26 Joint Exhibit 1, ¶14, Trial, July 8, 2009.
27 N.T. 76-82, Trial, July 8, 2009.
28 Joint Exhibit 2, Trial, July 8, 2009.
" Joint Exhibit 5, Trial, July 8, 2009.
5
13. Defendants have frustrated Plaintiffs' attempt to reimburse Defendants
for Plaintiffs' share of property taxes attributable to the strip, by declining to
advise Plaintiffs as to the amount due. 30 In all other respects, Plaintiffs have met
their obligations under the ground lease/option to purchase.31
14. A subdivision plan prepared on behalf of Plaintiffs with respect to the
strip subject to the option contemplated a conveyance by Defendants of all of the
strip to Plaintiffs, with the exception of a small area of road frontage on the eastern
end and a narrow band running from that area west to Defendants' land.32
15. Under a subdivision ordinance revised following the Johnsons' initial
conveyance and ground lease/option in favor of Plaintiffs,33 this subdivision plan
has been approved by the municipality in question, subject to Defendants' joinder
in the process. Specifically, the parties have stipulated as follows:
The Diehls can comply with all requirements of the February 14, 2008
South Middleton Township Board of Supervisors' approval of the Final
Subdivision of Raymond E. and Genevieve Diehl, Plan No. 01-15, except
for the requirement of the signature of the McAdoos and any and all other
documents and requirements that require the McAdoos cooperation.34
16. Defendants have declined to provide such cooperation.35
DISCUSSION
Statement of law. Several principles of law are particularly relevant to a
disposition of the present case. First, a basic tenet of equity is that "equity regards
and treats that as done which in good conscience ought to be done and equity
imputes an intention to fulfill an obligation." Sweeny v. Mechanics Trust Co., 55
Pa. D.&C. 80, 85 (Dauphin Co. 1945), citing City of Philadelphia v. Myers, 102
Pa. Super. 424, 432, 157 A. 13, 16 (1931). Thus, Pennsylvania courts have granted
30 N.T. 98-101, Trial, July 8, 2009.
3' N.T. 100-101, Trial, July 8, 2009.
32 Plaintiffs' Exhibit 8, Trial, July 8, 2009
33 N.T. 36, Trial, July 8, 2009.
34 Court Exhibit 1, Trial, July 8, 2009.
3s N.T. 37, Trial, July 8, 2009; Court Exhibit 1, Trial, July 8, 2009.
6
specific performance in situations where a vendee has elected to accept partial
performance of a contract by a vendor, particularly where the vendee is not
seeking abatement in the purchase price. See, e.g., Sidle v. Kaufman, 345 Pa. 549,
29 A.2d 77 (1942).
Second, it is often said that "equity abhors a forfeiture." Prol v. Prol, 2007
PA Super 313, ¶18, 935 A.2d 547, 554. Nor does equity favor the bestowal of a
windfall. See Rusiski v. Pribonic, 511 Pa. 383, 395, 515 A.2d 507, 513 (1986).
Third, under the doctrine of necessary implication, where it is clear that an
obligation was within the contemplation of the parties at the time of contracting, or
is necessary to carry out their intentions, the court will imply it. Gallagher v.
Upper Darby Township, 114 Pa. Commw. 463, 473, 539 A. 2d 463, 467 (1988).
Finally, with respect to awards of attorneys' fees to litigants, an exception
to the general rule against such awards exists where a litigant's conduct has been
"dilatory, obdurate or vexatious ... during the pendency of [the] matter." Act of
July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §2503(6).
Application of law to facts. In the present case, where, inter alia, (a) a 66.5-
acre tract of land was conveyed to Defendants, (b) a 13-acre strip of the tract was
subject to a ground lease/option to purchase in favor of Plaintiffs as adjacent
landowners, (c) the ground lease/option to purchase was supported by mutual
consideration and was noticed of record, (d) the option to purchase expressly
contemplated the necessity of a subdivision in the event of its exercise, (e)
Defendants frustrated Plaintiffs' efforts comply with their obligation to reimburse
Defendants for property taxes attributable to the strip, and (f) Defendants have
refused to cooperate in a subdivision process that would result in approval of a
transfer of almost all of the optioned strip to Plaintiffs, the court is of the view,
based upon the principles of law recited above, that:
1. Defendants are in material breach of an implied
obligation under the ground lease/option to purchase to
cooperate in the subdivision process;
7
2. Plaintiffs are not in breach of their obligations under the
ground lease/option to purchase; and
3. Defendants' legal position in this litigation, while not
prevailing, has not been so lacking in merit as to warrant a
finding of dilatory, obdurate or vexatious conduct.
Accordingly, the following Decree will be entered:
DECREE
AND NOW, this 13th day of August, 2009, upon consideration of Plaintiffs'
complaint and Defendants' counterclaim, and following a bench trial on July 8,
2009, and the submission of briefs on behalf of the parties, and for the reasons
stated in the accompanying opinion, it is ordered, adjudged and decreed as
follows:
1. On Plaintiffs' complaint, the court finds in favor of
Plaintiffs Raymond E. Diehl and Genevieve A. Diehl and
against Defendants John McAdoo and Cathy McAdoo, and
Defendants are enjoined to:
a. Execute within 20 days of service by
Plaintiffs any and all documents required by any
governmental authority to secure final approval
and recordation of the South Middleton
Township Subdivision Plan 07-5 of Raymond E.
and Genieve A. Diehl;
b. Prepare and execute within 20 days of the
recording of the said subdivision plan a special
warranty deed conveying Lot IA on the
subdivision plan to Plaintiffs, and serve the same
upon Plaintiffs for recording; and
c. Calculate within 15 days of the date of this
order an accurate amount of taxes owed by
8
Plaintiffs pursuant to the ground lease/option to
purchase sub judice, and serve the same upon
Plaintiffs, who shall pay to Defendants the
amount so calculated within 20 days of service.
2. On Defendants' counterclaim, the court finds in favor of
Plaintiffs Raymond E. Diehl and Genevieve A. Diehl and
against Defendants John McAdoo and Cathy McAdoo, and the
counterclaim is dismissed.
3. No other relief is afforded to either party.
BY THE COURT,
s/ J. Wesley Oler Jr.
J. Wesley Oler, Jr., J.
Robert C. Saidis, Esq.
Sadis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
Nathan C. Wolf, Esq.
Wolf & Wolf
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
Richard S. Mislitsky, Esq.
Suite 208
1 West High Street
Carlisle, PA 17013
Courtesy Copy
9
OF Tff
2009 AUG 13 Alf 11= 52
O R •D COLM
PENNSY"tA
RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL, Husband
and Wife,
Plaintiffs,
V.
JOHN MCADOO and CATHY
MCADOO, Husband and Wife,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: No: 2008-1234 Civil Term
: CIVIL ACTION -
: IN EQUITY
DEFENDANTS' PETITION FOR ENFORCEMENT OF DECREE
AND NOW COME the defendants, John McAdoo and Cathy McAdoo, by and through
their counsel, Wolf & Wolf, Attorneys at Law, and present this Petition for Enforcement of Decree
issued by the Court on August 13, 2009, and in support thereof state the following:
The parties appeared before the Court on or about July 8, 2009 for trial on the
Plaintiffs' Complaint in Equity, and the Defendants' Counterclaim thereto seeking declaratory relief.
2. The Court issued its Verdict and Decree on August 13, 2009, granting relief to the
Plaintiffs in their request for the Court to require the Defendants to execute all necessary documents
to complete the subdivision process which was the subject of the litigation. (A true and correct copy
is attached hereto as Exhibit A)
3. Furthermore, in Paragraph 1(c) the Court directed Defendants to accurately calculate
the amounts due under the "Ground Lease/Option to Purchase" and to submit said calculation to
the Plaintiffs within fifteen days of the Verdict and Decree, "who shall pay to Defendants the
amounts so calculated within 20 days of services" emphasis added.
4. Defendants, through their counsel calculated the amounts due under the Ground
Lease/Option to Purchase and submitted the same, along with the methodology employed in
calculating the taxes by letter on August 28, 2009. (A true and correct copy of said correspondence
is attached hereto as Exhibit B.)
5. In response, Plaintiffs submitted a check, through their counsel on September 9,
2009 for the amounts calculated for 2001 through 2009 only, totaling $522.72, rather than the
$1069.43. In this letter counsel for Plaintiffs suggests that any taxes accruing prior to 2001 would be
due to the Johnsons, if anyone, rather than the McAdoos. (A true and correct copy of the
September 9, 2009 letter is attached hereto as Exhibit C)
6. Plaintiffs offered testimony at trial that they never paid prorated taxes to the
Johnsons or the McAdoos since the agreement was entered in 1995.
7. There was not contradictory testimony on that issue offered by any witness at trial.
8. Defendants submitted a second request before the Court-imposed 20 day deadline,
demanding the payment of the balance of the taxes due, $546.71 under the ground lease by letter
dated September 10, 2009, requesting said payment to occur on or before September 17, 2009, or in
the alternative suggesting that counsel request a brief conference with the Court to request
clarification on this provision of the Verdict and Decree to avoid the necessity of filing the instant
petition. (A true and correct copy is attached as Exhibit D)
9. Plaintiffs responded by informing Defendants by letter dated September 18, 2009, (a
true and correct copy of which is attached hereto as Exhibit E), stating that the prorated taxes had
been paid to the Johnsons and that "no further funds are due to the McAdoos".
10. On or about October 9, 2009, in a final effort to resolve with matter without Court
intervention, Defendants, through counsel, submitted a final request to Plaintiffs seeking payment of
the taxes due, indicating that the Court's language did not reference the proration of taxes to the
Johnsons and reminding the Plaintiffs and their counsel that the Johnsons transferred any right and
title to the real estate to the McAdoos when they sold the property in 2001. Defendants provided
the Plaintiffs with notice that the failure to pay the amount due would result in the filing of the
instant petition and the request for not only the amounts due, but for any counsel fees and costs
associated with the enforcement of the Court's Decree of August 13, 2009. (A true and correct copy
is attached hereto as Exhibit F).
11. On or about October 13, 2009, Plaintiffs' counsel authored correspondence
challenging not the accuracy of the calculation, but the accuracy of the claim made by the McAdoos
versus the Johnsons, and again indicating that the taxes were paid to the Johnsons and that nothing
further would be paid to the McAdoos. (A true and correct copy of the October 13, 2009 letter is
attached hereto as Exhibit G)
12. Plaintiffs' correspondence of October 13, 2009 suggests that a request for
documentation was made to establish the entitlement to the tax payment, however, Plaintiffs'
counsel has been in possession of the deed signed by the Johnsons on January 30, 2001, conveying
the property to the McAdoos, since a time prior to trial, as this document was entered into the
record as joint Exhibit #5. (A true and correct copy of the deed is attached hereto as Exhibit H.)
13. Said deed states that the Johnsons transferred inter alia "reversions and remainders,
rents, issues and profits thereof' to Grantees, namely the McAdoos.
14. Defendants' counsel repeatedly advised Plaintiffs' counsel that the Johnsons had
transferred all right and title to the property when they conveyed the property, including the right to
receive rents. (See, Exhibits D and F attached hereto)
15. It is respectfully submitted that it is not the responsibility of the Defendants to prove
that the Johnsons were not entitled to the payment, but rather it is the responsibility of the Plaintiffs
to prove that the Defendants are not entitled to the payment so ordered by the Court.
16. Defendants' actions have, at each stage herein, been designed to minimize costs for
each party and to effectuate a resolution of the matter without Court intervention.
17. Plaintiffs have taken matters upon themselves to interpret the Court's Order to
minimize the amounts paid to the Defendants and, by doing so, instead chose to make payment to
the Johnsons.
18. Now Plaintiffs have disingenuously suggested that the Defendants were under the
obligation to satisfy additional requests for information but chose to make payment to the Johnson
before any such requests could have been fulfilled, assuming arguendo that the Plaintiffs' counsel did
not already possess the documentation he requested.
19. Defendants have, in the foregoing correspondence, provided information including a
proposed legal description to the Plaintiffs to attempt to satisfy the Court's directive that the
Defendants prepare a deed to accomplish the transfer of the property to the Plaintiffs.
20. Defendants have incurred counsel fees associated with the instant issue which would
not have been incurred but for the arbitrary, obdurate and vexatious conduct of the Plaintiffs in
refusing to comply with the Court's Decree of August 13, 2009.
21. Defendants' counsel fees incurred related to the issue of the tax payment up to and
including the preparation of the instant petition total $495.00 and are set forth in the attached
statement attached hereto as Exhibit I.
22. Defendants respectfully submit that an award of counsel fees as a sanction against
the Plaintiffs is appropriate and authorized pursuant to 42 Pa.C.S. §25030.
23. Defendants submit that they took every reasonable step to avoid Court intervention
and the need to incur any additional counsel fees.
24. The award of counsel fees is appropriate where the actions of a party are in direct
contradiction to the express wording of the Court's order and where the party seeking enforcement
is in compliance with the order of which enforcement is sought.
25. Moreover, the award of counsel fees is appropriate to ensure that the party so
sanctioned continues to comply in the future with the Court's directives.
26. Finally, it is respectfully submitted that an award of counsel fees is appropriate in this
matter because the interests of justice are served by sanctioning parties who refuse to cooperate in
the informal resolution of disputes without the need for further litigation and further formal
involvement of the Court.
27. Concurrence in the instant petition was not sought, in light of the position taken by
Plaintiffs' counsel in the informal attempts to resolve the instant matter.
WHEREFORE, Defendants McAdoo respectfully pray that this Honorable Court issue an Order
in favor of Defendants McAdoo as to the instant petition for enforcement of the Court's Decree of
August 13, 2009, finding that the Court directed the Plaintiffs to make the full payments of the
amounts owed under the "Ground Lease/Option to Purchase" as calculated by the Defendants, by
finding that the refusal to make such payment constituted obdurate, arbitrary and vexatious conduct,
by ordering the Plaintiffs to make payment to the Defendants of the sum of $546.71 within ten days
of the Order issued by the Court, by imposing a sanction against Plaintiffs for their conduct in this
matter and ordering Plaintiffs to pay Defendants' counsel fees in the amount of $495.00, plus the
amount of any additional counsel fees incurred between the time of filing and the adjudication of
the matter within ten days of the Court's adjudication, along with any additional relief that the Court
may deem appropriate and just.
Kespectfiill?y submitted,
WOLF LF
Date: October 23, 2009
an ,C. Wolf, Esquire
upre Court ID No. 87380
st High Street
Carlisle, PA 17013
Attorney for Defendants McAdoo
VERIFICATION
I, the undersigned counsel for defendants, verify that the statements in the above petition
are true and correct to the best of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn
falsification to authorities.
October , 2009
RAYMOND E. DIEHL : IN THE COURT OF COMMON PLEAS OF
and GENEVIEVE A. : CUMBERLAND COUNTY, PENNSYLVANIA
DIEHL, ;
Plaintiffs :
CIVIL ACTION
V.
JOHN MCADOO and
CATHY MCADOO,
Defendants : NO. 08-1234 CIVIL TERM
ADJUDICATION
BEFORE OLER, J.
DECREE
AND NOW, this 13'h day of August, 2009, upon consideration of Plaintiffs'
complaint and Defendants' counterclaim, and following a bench trial on July 8,
2009, and the submission of briefs on behalf of the parties, and for the reasons
stated in the accompanying opinion, it is ordered, adjudged and decreed as
follows:
1. On Plaintiffs' complaint, the court finds in favor of
Plaintiffs Raymond E. Diehl and Genevieve A. Diehl and
against Defendants John McAdoo and Cathy McAdoo, and
Defendants are enjoined to:
a. Execute within 20 days of service by
Plaintiffs any and all documents required by any
governmental authority to secure final approval
and recordation of the South Middleton
Township Subdivision Plan 07-5 of Raymond E.
and Genieve A. Diehl;
b. Prepare and execute within 20 days of the
recording of the said subdivision plan a special
warranty deed conveying Lot IA on the
E-?,ht b1+ kv
subdivision plan to Plaintiffs, and serve the same
upon Plaintiffs for recording; and
c. Calculate within 15 days of the date of this
order an accurate amount of taxes owed by
Plaintiffs pursuant to the ground lease/option to
purchase sub judice, and serve the same upon
Plaintiffs, who shall pay to Defendants the
amount so calculated within 20 days of service.
2. On Defendants' counterclaim, the court finds in favor of
Plaintiffs Raymond E. Diehl and Genevieve A. Diehl and
against Defendants John McAdoo and Cathy McAdoo, and the
counterclaim is dismissed.
3. No other relief is afforded to either party.
BY THE COURT,
Robert C. Saidis, Esq.
Sadis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
N ha&n C. Wolf, Esq.
o11 Wolf
0 West High Street
Carlisle, PA 17013
Attorney for Defendants
Richard S. Mislitsky, Esq.
Suite 208
1 West High Street
Carlisle, PA 17013
Courtesy Copy
NATHAN C. WOLF
PHONE
717-241-4436
VIA HAND DELIVERY
Robert C. Saidis, Esquire
Saidis Flower & Lindsay, P.C.
26 West High Street
Carlisle, PA. 17013
WOLF 8L WOLF
ATTORNEYS AT LAw
10 WEST HIGH STREET
CARLISLE, PENNSYLVANIA 17013
wolfandwolfnembargmail.com
August 28, 2009
Re: Diehl v. McAdoo
Docket No. 2008-1234 Civil Term
In Equity
Dear Bob:
STACY B. WOLF
FACSIMILE
717-241-4437
Enclosed, please find the calculation I reached concerning the property taxes due per judge
Oler's order of August 13, 2009. I multiplied the total tax amount due by percentage of the land
subject to the lease/option versus the whole parcel, which represents 22.04%. I obtained these
figures by having the leased parcel plotted by Hamilton Davis, and then taking the square footage of
the leased parcel divided by the square footage of the total McAdoo property. I ran the same
calculation for the remaining land still subject to the lease and came up with figure of 2.39% for the
future years, and 2009-2010, as the tax bill has just come out for that period. We will expect
payment of the $1,069.43 within the timeframe provided by the Order. My client has requested the
Diehls issue a check to Wolf & Wolf, for John & Cathy McAdoo and have those funds delivered to
my office.
Because your clients have received the benefit of the property being enrolled in Clean and
Green in terms of their proportionate share of the taxes due, please be aware that if the property is
developed such that it would trigger roll-back liability for the McAdoos, we believe that the Diehls
would be responsible for any taxes due as a result of their development.
I have also enclosed a rough legal description for the deed from McAdoo to Diehl which I
would like you to review before I draft the deed, as per judge Oler's Order.
Hopefully, you will have the payment referenced above available when the subdivision plans
are delivered to my office for my clients' signatures. Once they have been signed, I will then return
them to your office so that they can be submitted for recording.
Wolf & Wolf
Saidis
August 28, 2009
Page two
Thereafter, I will prepare the deed for the acreage to be subdivided and will submit it to you
for review. Please let me know if this will be considered a lot addition and if so, whether there is any
special language I must include in the deed.
Thank you for your cooperation and assistance in this matter.
Enclosures
cc: John & Cathy McAdoo
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Description for Lot IA:
Beginning at a point in Rockledge Drive (T-478), thence with said road, North 32 degrees 07
minutes 03 seconds East 150.00 feet to a point; thence South 57 degrees 31 minutes 47 seconds
East 450.16 feet to a point thence South 42 degrees 59 minutes 45 seconds East 711.59 feet to a
point; thence South 33 degrees 45 minutes 51 seconds East 1060.50 feet to a point; thence North
80 degrees 42 minutes 33 seconds East 158.69 feet to a point; thence South 62 degrees 58
minutes 53 seconds East 140.14 feet to a point at Lot No. 1; thence South 40 degrees 07 minutes
07 seconds West 218.25 feet to an Iron Pin Set; thence South 80 degrees 42 minutes 33 seconds
West 250.68 feet to an Iron Pin Set; thence North 33 degrees 45 minutes 51 seconds West
1187.13 feet: to an Iron Pin Set; thence North 42 degrees 59 minutes 45 seconds West 664.74 feet
to an Iron Pin Set; thence North 57 degrees 31 minutes 47 seconds West 340.08 feet to an Iron
Pin Set; thence North 32 degrees 07 minutes 03 seconds East 75.00 feet to an Iron Pin Set;
thence North 57 degrees 31 minutes 47 seconds West 80.00 feet, the place of beginning.
RECEIVED SEP 10 2009
LAW OFFICES
SAIDIS, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
JOHN E. SLIKE CARLISLE, PENNSYLVANIA 17013 CAMP HILL OFFICE
ROBERT C. SAIDIS TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486 2109 MARKET STREET
JAMES D. FLOWER, JR. EMAIL: attorney@sfl-law.com TELEPHONE: (717)737-3405
CAROL J. LINDSAY www.sfl-law.com FACSIMILE: (717)737-3407
JOHN B. LAMPI
DANIEL L. SULLIVAN
ALBERT H. MASLAND
DEAN E. REYNOSA
THOMAS E. FLOWER
MARYLOU MATAS
JASON E. KELSO REPLY TO CARLISLE
September 9, 2009
Nathan C. Wolf, Esq.
Wolf & Wolf
10 West High Street
Carlisle, PA 17013
Re: Diehl v. McAdoo
Dear Nate:
Thank you for your letter of August 28, 2009, and the calculations.
As you are aware, your client purchased the property in 2001. Any
rent proration prior to the date of the purchase would be to the
Johnsons and not to the McAdoos.
In an effort to move this matter forward, we are forwarding my
client's check accepting your figures from 2001 through 2009. The
check is made payable to your law firm in the amount of $522.72.
If you have any questions, please do not hesitate to contact me.
Very truly)yours,
q, FLOWER & LINDSAY
1 ,
Robert C. Saidis
RCS/pm
Enclosure
CC: Mr. and Mrs. Raymond Diehl
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WOLF & WOLF
ATTORNEYS AT LAw
NATHAN C. WOLF 10 WEST HIGH STREET STAGY B. WOLF
CARLISLE, PENNSYLVANIA 17013
PHONE woltandwolf(Rembarclmall.com FACSIMILE
717-241-4436 717-241-4437
September 10, 2009
VIA HAND DELIVERY
Robert C. Saidis, Esquire
Saidis Flower & Lindsay, P.C.
26 West High Street
Carlisle, PA. 17013
Re: Diehl v. McAdoo
Dear Bob:
Thank you for your letter of September 9, 2009 and the check you included. However, this
should have been a check for the entire amount due because at the time the Johnson's transferred
the property to the McAdoo's they likewise transferred any right to receive rents due. Thus, there is
to be no proration of the total rent due of $1069.43.
Moreover, in paragraph 1(c) of its August 13, 2009 Order the Court was very clear that the
McAdoos were responsible for calculating the amount due pursuant to the ground lease/option to
purchase and. that the Diehls were obligated to pay that amount. Inasmuch as the Court directed
payment within 20 days of service of notice of the amount due, I expect that we will receive the
balance of $546.71 by September 17, 2009 or I will be forced to seek additional relief from the
Court, including counsel fees and costs associated with obtaining enforcement of the Order. Please
note that I will be cashing the check for $522.72 which I received today, but that this is not to be
understood as an acceptance of the full amount due.
Please ensure that I receive these funds by September 17, 2009 to avoid any additional costs
to your clients. If you disagree with my position, I suggest we schedule a brief conference with
judge Oler before September 17, 2009 so that we can avoid unnecessary costs to our clients.
Please advise as to your position and note that I have not yet received service of the
subdivision plan for the McAdoos signatures, nor have I received confirmation from you as to the
legal description for the deed provided with my last letter.
I look: forward to hearing from you in the immediate future.
cc: Mr. & Mrs. John McAdoo (w/enc)
Ve trul o
/Nathan C. if
E-- xh%-b A- 0
LAW OFFICES
SAIDIS, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
JOHN E. SLIKE CARLISLE, PENNSYLVANIA 17013
ROBERT C. SAIDIS TELEPHONE: (717) 243-6222 - FACSE%dnE: (717) 243-6486
JAMES D. FLOWER, JR. EMAIL: attorney@sf14aw.com
CAROL J. LINDSAY www.sfl-law.com
JOHN B. LAMPI
DANIEL L. SULLIVAN
ALBERT H. MASLAND
DEAN E.REYNOSA
THOMAS E. FLOWER
MARYLOU MATAS
JASON E. KELSO
September 18, 2009
Via email nathancwolfCaZembargmall com
Nathan C. Wolf, Esq.
Wolf & Wolf
10 West High Street
Carlisle, PA 17013
Re: Diehl v. McAdoo
Dear Nate:
CAMP HILL OFFICE
2109 MARKET STREET
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
REPLY TO CARLISLE
I have confirmed that the Diehls paid the Johnsons the amount
that was owed on the tax proration up to and including the
date that your client purchased the property. Accordingly, no
further funds are due to the McAdoos.
I also contacted South Middleton Township to determine what
additional information was needed to finalize the subdivision.
We are working on securing the necessary information and will
keep you advised as matters proceed.
You should, however, be advised that the township is requiring
deeds of consolidation with a new property description for
each property. I would suggest that it would be best if the
engineer prepared these legal descriptions. There would need
to be three deeds:
1. McAdoo to Diehl for the parcel to be conveyed;
2. McAdoo to McAdoo to consolidate; and
3. Diehl to Diehl to consolidate.
The McAdoos, in my opinion, should be responsible for the deed
to the Diehls and also their own deed to consolidate.
I contacted Brian O'Neill at the township. We need to comply
with the comments of the February 12, 2008 Planning Department
Nathan C. Wolf, Esq.
September 18, 2009
Page 2
Memorandum. Once my client complies with the same, we will be
in touch for the deeds and necessary signatures.
Kindly advise if you are in agreement that the engineer should
draft the various legal descriptions.
Very truly yours,
SAID OWER & LINDSAY
Robert C. Saidis
RCS/pm
CC: Mr. and Mrs. Raymond Diehl
WOLF & WOLF
NATHAN C. WOLF
PHONE.
717-241-4436
ATTORNEYS AT LAW
10 WEST HIGH STREET
C A ISLE, PENNSYLVANIA 17013
wolfandwolf ct,embargmail.com
STAGY B. WOLF
FACSIMILE
717-241-4437
October 9, 2009
VIA HAND DELIVERY
Robert C. Saidis, Esquire
Saidis Flower & Lindsay, P.C.
26 West High Street
Carlisle, PA 17013
Re: Diehl v. McAdoo
Dear Bob:
I have spoken with my clients concerning your letter of September 18, 2009. I am
disappointed that this matter cannot be resolved without further disputes between the parties. I
have enclosed a copy of the Court's Order for your convenience which indicates that my client was
responsible for calculating within fifteen days of the date of the "order an accurate amount of taxes
owed by Plaintiffs pursuant to the ground lease/option to purchase sub judice, and serve the same
upon Plaintiffs, who shall pay to Defendants the amount so calculated within 20 days of
service." (Emphasis added).
You have offered no objection to the calculation of the taxes due. The judge did not direct
your client to make payment to the Johnsons, and I reiterate that the Johnsons relinquished all right
and title to the property, including the right to receive rents when they sold the property to my
clients. There is simply no authority for the Diehls or you to have paid anything to the Johnsons in
an attempt to satisfy the Court's directives. Therefore, I expect that the balance of $546.71 will be
paid by October 15, 2009. If this amount is not paid I will be forced to seek enforcement of the
Order by petition to the Court and I will seek an award of counsel fees for my efforts to obtain
payment for my clients. I intend to attach all correspondence exchanged since trial to the petition so
that the Court will be fully aware of the requests we have made and your responses to those
requests. I would like very much to avoid this step and save each of our clients any additional
litigation expense, but your position is obstructive of the express terms of judge Oler's Order.
As to the issue of the deeds, my client has already incurred expenses to plot the property
boundary and develop the legal description. They have no interest in hiring an engineer to do so
and I am unaware of any requirement to have an engineer draft the legal description imposed by the
Township. Furthermore, while your clients may very well need to have a deed of consolidation, my
clients are not required to record a new deed as they do not have to consolidate any parcels. Rather
their land is the residual following the transfer to the Diehls. I have confirmed with the Township
that providing you with one deed for the parcel to be conveyed will be sufficient for the McAdoos
role in the completion of the subdivision. I believe that the Township may require a deed of
Wolf & Wolf
Saidis
October 9, 2009
Page two
consolidation for your clients' parcels, but as you have already pointed out, that will be the sole
responsibility of the Diehls.
If you have any concern about the legal description which I have already provided to you,
please advise immediately. I will make any corrections necessary, otherwise I will prepare the deed
using that description.
I again reiterate that my clients are prepared to sign the subdivision plans as soon as you
have them available. Please advise when they will be available for signature and I will be preparing
the deed to be signed as well.
Finally, as soon as the deed is delivered and the plans are signed, I expect that you will file a
praecipe to remove the lispendens from my clients' property.
I look forward to hearing from you in the immediate future so that we may avoid any
additional litigation expense.
Ve trul o
Nathan C. If
cc: Mr. & Mrs. John McAdoo (w/o enc)
LAW OFFICES
SAIDIS, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
JOHN E. SLIKE CARLISLE, PENNSYLVANIA 17013
ROBERT C. SAIDIS TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
JAMES D. FLOWER, JR. EMAIL: attorney@sfl-law.com
CAROL J. LINDSAY www.sfl-law.com
JOHN B. LAMPI
DANIEL L. SULLIVAN
ALBERT H. MASLAND
DEAN E. REYNOSA
THOMAS E. FLOWER
MARYLOU MATAS
JASON E. KELSO
October 13, 2009
Via email nathancwolMembargmail.com
Nathan C. Wolf, Esq.
Wolf & Wolf
10 West High Street
Carlisle, PA 17013
Re: Diehl v. McAdoo
Dear Nate:
Thank you for your letter of October 9, 2009.
CAMP HILL OFFICE
2109 MARKET STREET
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
REPLY TO CARLISLE
The key word, which you have not highlighted in the Order, is
"accurate, .
I requested documents, which would have indicated that your client
was entitled to payment of the rent priorto their ownership. I
have not received them. The Diehls made the payments to the
Johnsons for the payments they would have been entitled during
their period of ownership. I am at a loss to see how your client
is entitled to more funds.
With regard to the legal description, please do not draft any legal
descriptions until the subdivision is finalized. Our requests are
in accordance with paragraphs a. and b. of Judge Oler's Order of
August 13, 2009.
If you have any questions or concerns regarding the Diehlsl
position, please do not hesitate to contact me.
-s,
RCS/pm
Cc: Mr. and Mrs. Raymond Diehl
& LINDSAY
J
SPECIAL, WARRANTY DE?llr' G t D
q /a? Y`-
ii i PA
THIS 11IDENT 1,1:,DE THE Y day of
BETWEEN
DANIEL 1 JC'li`;;c?N and JOYCE H. JOHNSON, husband and wife, by their
Age,it, Kerdock, Esquire, by Power of Attorney being
reco,-deo s.j itiu_,'. "_aneously with this Deed ("Grantors")
AND
Gra:it.: ? ? =;
WITNESSETH
The 1-1rantors for and in consideration of the sum of THREE HUNDRED
SIXTY THOUSAND AND NO1100 ($360,000.00) DOLLARS-------------------------------
paid t.) Grant,--s by Grantees, the receipt of which is herebv
acknowiE-.dged, h::,e granted, bargained and sold, released and
confirrr-z,d, by these presents do errant, bargain and sell,
release anc.. _(.,rnrjrm unto Grantees their heirs and assigns.
See Exhi'.--J-ir - attached
TOGET!iER and singular the improvements, ways, streets,
alleys, dr: ra,s, passages, waters, water-courses, rights;
liberties. -ileges, hereditaments and appurtenances, whatsoever
unto trE_ r any granted premises belonging,
or in any wise
app,ejtaLi, grid the reversions and remainders, rents, issues,
and pro[-_t- `ereof; and all the estate, right, title, interest,
prop,erry, ?m and demand whatsoever of Grantors, as well at law
as ir, e( ijA (;f, in, and to the same.
TO HAVE
with t
e CJ HOLD the lot or piece c.l_ ground described above
r
_
. ,
premise
-- r
;.,uage or tenement thereon -1--c-Led her_editarnents
I and
_
the
, r eLy granted, or mentioned an % intend,-?d so to be with
ap_)
._
for ,
-, 2nances, unto Grantees their hei-rs and assigns, to
(:nl
r and
assi y p
oper use and behoof of r_;rantees their heirs an(;
rn. never.
AND ?r_an
cov
t- tors, the-?i,- heirs, U1:(J, .
-err: 1
, c)_min.isl=?.+t,?rs
d
e
,ant,
assirr:s,
I=,romise and agree tc: aria ,-',_,
Li=1-r %;rante-es heirs
by these
r o
and
singular p
esents, that Grantor- anal t1-jeir heirs, all
the hereditame
t and
mention-d n
s and premises hereby granted
and ?r,tended so to be
with or
Grantee3 ,
the appurtenances,
--heir .,eirs and assigns
against '-
h to
,
.
em,, Grantors _,nd t heir
E-?,hl_bl+ 4A
heirs, a.nr.1 against all and every person and persons whomsoever
lawfully i-;t?_ming or to claim the same or any
from or irnc_r rim, her, them or an y part thereof, by,
of them, shall and will
WARRANT a;-i_-Forever DEFEND.
IN WITNESS ?1Hr':EOF, the Grantors have hereunto set the--'_r hands and
seals. D_iLed i. :e day and year first above written.
SEALED ANT' F)LIIVERED
IN THE OF US:)
J /
D IEL W. JOHNSON, by his Agent,
J hn SS. Kerdock_, Esquire
CE H. JOHNSON, by h r Agent,
J hn S. Kerdock, Esquire
State of Pennsylvania )
County cf 43Ldt''4'-S'
ss:
On this; the a?f! day of Jq'vu4X1j00/
Notary Publ.c for the State of Penns before m a
Pennsylvania, the undersig gned
Officer, Pr,1 ,; ..E,.ily appeared John S. Kerdock_, Esquire, as Agent
for DA.NIET' U. JOHNSON and JOYCE H. JOHNSON, husband and wife
known to me (satisfactorily proven) to be the person whose name i,
s
subscribed i_-) the_ within instrument, and acknowledged that he
executed the s,.mF> for the purposes therein contained.
IN WITNES WHEREOF, I hereunto set my hand and official seal.
Notes Y Public
The addre3s?, f the within named Grantee is
1538 HOLLY -PIKE
CARLISLE, PA--17013
------ --------
??!^NOTARIAL SEAL
JOHN L. CARR, Notary Public
Qu» 6:crtown Boro, Bucks Coin^,f
KjV Commission Fu ,ires Oc; 27, 2001
T) 0 T-TT'.RFR`I CET IT 1E
79r
rr?cT
COPY ,.
By- _
'"idavil - Power orAttorney
CRIS# l 1693117
Acknowledgement by Agent
1, J 0/-?/V -G /C Z7.64 ,61 , have read the attached power of attorney and am the person identified as the agent
for the principal. I hereby acknowledge that in the absence of a specific provision to the contrary in the Power of Attorney or in 20
Pa. C.S.., when I act as agent:
I shall exercise the pcwcrs for the benefit of the principal.
1 shall keep the assets of the principal separate from my assets.
I shall exercise reasonable caution and prudence.
I shall keep a full and acs; irate record ()fall actions, receipts and disbursements on
behalf of the principal.
PLC ??, -7 (A,.ent /•
- ) 13010? ------(Date)
COMMONWEALTH OF P"?tiT,SVTXANIA
COUNTY OF
ss
On this -SO Aday of I
-- ----- 2000, before me, the undersigned officer, personally appeared
known to me or satisfactorily identified before me, and he signed the foregoing
document in my presence fjl tl,e purposes stated therein.
IN WITNESS WEEREOF, I hereto set my hand and official seal.
Notary't-i11 is ----
My commission expires:
NOTAFIIAL SEAL
JOHN LARK Notary Put?lic
Wakertovm Eicro, E3i:cks Coe^nr
M Commission Expir?r; 0
. t. ?7 2001
ALL that certai- `r-3c of land with the improvements thereon erected situate in South Middleton
Township, Curnber!and County, Pennsylvania, bounded and described as follows:
BEGINNING at poi it in cartway of Rockledge Drive, T-478; thence along and through
cartway of Rockl,- dge Drive, T-478 North 32 degrees 07 minutes 03 seconds East 250.00 feet
to a point; the,'ice, :along Lot No. 2, lands now or formerly of Raymond Diehl South 57 degrees
31 minutes ,'-/ >?;;conds East 450.16 feet to a point; thence continuing along same South 42
degrees 59 minutes 45 seconds East 711.59 feet to a point; thence continuing along the same
South 33 decrees 45 minutes 51 seconds East 1060.50 feet to a point; thence continuing along
same North 80 degrees 42 minutes 33 seconds East 158.69 feet to a point; thence continuing
along same South 62 degrees 58 minutes 53 seconds East 140.14 feet to a point; thence along
same North 40 degrees 07 minutes 07 seconds East 1744.23 feet to a point located at the
common property line of lands now or formerly of Daniel W. Johnson, Raymond Diehl and Mark
A Naugle; thence along land now or formerly of Mark Naugle South 57 degrees 27 minutes 01
second East 1088.36 feet to a point; thence still along lands now or formerly of Mark A. Naugle
South 33 degrees 02 minutes 16 seconds West 512.06 feet to a point; thence continuing along
same South 19 degrees 58 minutes 52 seconds East 252.98 feet to a point located on line of
lands now o, former'y of Mark A. Naugle; thence along lands to be conveyed to Paul R.
Teitrick, known as parcel A on plan dated January 17, 2001 South 59 degrees 52 minutes 21
seconds West 321.32 reet to a point; thence along Parcel A and Parcel B South 13 degrees 27
minutes 03 seco,ids cars 183.69 feet to a point; thence along lands now or formerly of Paul R.
Teitrick South 61 dr g? ?,-es 36 minutes 15 seconds West 495.14 feet to a point; thence along
lands now or forn,e;-l? ^f Wayne Weibley South 85 degrees 30 minutes 48 seconds West
216.87 feet to a pr:irlt; ih,?nce along lands now or formerly of Clyde Weibley North 46 degrees
04 minutes 29 seconds; West 313.50 feet to a point; thence along same South 66 degrees 56
minutes 19 seconds West 420.75 feet to a point; thence continuing along lands now or formerly
of Clyde Weibiev North 62 degrees 58 minutes 53 seconds West 577.11 feet to a point; thence
along same South 80 degrees 42 minutes 33 seconds West 237.60 feet to a point; thence along
same North ::,3 degrees 45 minutes 51 seconds West 1201.20 feet to a point; thence along
lands now or for;n rl?, c,f Clyde Weibley and lands now or formerly of F. Albright Swarner North
42 degrees `9 mirrutes 45 seconds West 659.53 feet to a point; thence still along lands of F
Albert Swarner 57 degrees 31 minutes 47 seconds West 416.74 feet to a point the place
of BEGINNING.
Containing 6.`;.5=; s8 acres and being the remainder of Lot No. 1 as shown on plan of Daniel W.
Johnson/Ravrnond E. Diehl as set forth in the Office of the Recorder of Deeds for Cumberland
County ii-, P!--in Book 70, page 8.
EXHIBIT A
Wolf & Wolf, Attorneys At Law
10 West High Street
Carlisle, PA 17013
Date: 10/22/2009
John H. McAdoo
1538 Holly Pike
Carlisle, PA 17015
Regarding: McAdoo v. Diehl
Invoice No: 02714
Services Rendered
Date Staff Description Hours Rate Charges
9/10/2009 NCW Review correspondence from Attorney Saidis, 0.30 $150.00 $45
00
and draft correspondence in response re: rent .
prorations
9/21/2009 NCW Review correspondence from Atty Saidis 0.10 $150.00 $15.00
9/29/2009 NCW Call with clients concerning tax proration issue 0.20 $150.00 $30.00
10/08/2009 NCW Draft correspondence to Attorney Saidis 0.40 $150.00 $60.00
regarding outstanding matters
10/13/2009 NCW Review correspondence from Atty Saidis, letter to 0.40 $150.00 $60.00
clients concerning petition for enforcement of Order
10/21/2009 NCW Draft motion for enforcement of order 0.80 $150.00 $120.00
10/22/2009 NCW Draft and finalize motion for enforcement of order 1.10 $150.00 $165.00
and prepare for filing
Total Fees
Total New Charges
$495.00
Ef7(hibi+ Z
RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL, Husband
and Wife,
Plaintiffs,
V.
JOHN MCADOO and CATHY
MCADOO, Husband and Wife,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
No: 2008-1234 Civil Term
CIVIL ACTION -
IN EQUITY
CERTIFICATE OF SERVICE
I, Nathan C. Wolf, Esquire, certify that a copy of the foregoing Petition has been served on
this date by hand delivery upon the following individuals:
Robert C. Saidis, Esquire
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
Respectfully submitted,
WOLF & WOLF
Dated: October ,:?,'T, 2009
N off, Esquire
10 t High Street
Carlisle, PA 17013
Supreme Court I.D. No. 87380
(717) 241-4436
Attorneys for Defendants McAdoo
K4 -F THE ovv
20 OCT 23 ON W 54
MOM"
RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL, Husband
and Wife,
Plaintiffs,
V.
JOHN MCADOO and CATHY
MCADOO, Husband and Wife,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
No: 2008-1234 Civil Term
CIVIL ACTION -
IN EQUITY
RULE TO SHOW CAUSE
AND NOW this day of z , 2009, upon consideration of the
Petition for Enforcement of this Court's Decree dated August 13, 2009, a Rule is hereby issued
upon Plaintiffs to show cause, if any, why the relief requested in the instant Petition should not be
granted.
Rule returnable = t- days from the date of issuance.
BY THE COURT:
w /-Distribution:
Robert C. Saidis, Esquire
for the Plaintiffs
than C. Wolf, Esquire
for the Defendants
Con c -es rye 6L-CL
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'ICE
OF TtOirrwr
209 OCT 27 PM 3: 12
CUM B, 'c,UNTY
PENNSYLVANIA
RAYMOND E. DIEHL and
GENEVIEVE A. DIEHL, Husband
and Wife,
Plaintiffs
V.
JOHN MCADOO and
CATHY MCADOO, Husband and Wife,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - IN EQUITY
NO. 08-1234 Civil Term
ANSWER TO PETITION FOR ENFORCEMENT OF DECREE
AND NOW COME the Plaintiffs, Raymond E. Diehl and
Genevieve A. Diehl, by and through their attorneys, Saidis,
Flower & Lindsay, and answer as follows:
1. Admitted.
2. Admitted.
3. Admitted. By way of further answer, Finding of Fact
13 provides in part as follows:
Defendants have frustrated Plaintiffs' attempt to reimburse
Defendants for Plaintiffs' share of property taxes
attributable to the strip, by declining to advise Plaintiffs as
to the amount due.
4. Denied. Defendants failed to calculate in accordance
with standard real estate procedures the amount that would be
due and owing the Defendants from the date of their purchase,
January 31, 2001, through June 30, 2009.
It is believed and therefore averred that the Defendants
entered into a Standard Agreement of Sale of Real Estate
customarily used by Pennsylvania Realtors with Daniel W.
Johnson and Joyce H. Johnson as both parties were represented
by Realtors. The standard contract provided as follows:
At the time of settlement, the following will be prorated on
a daily basis between Buyer and Seller, reimbursing
where applicable current taxes; rent, interest on loan
assumption; water and/or sewer fees, if any, refuse fees ...
The charges are to be prorated for the periods covered.
Seller will pay up to and including the date of settlement;
Buyer will pay for all days following settlement unless
otherwise stated.
5. Admitted.
6. Admitted. It is further averred that a copy of the
settlement sheet between the McAdoos and the Johnsons (via
the relocation service, Cendant Mobility Services Corp) is
attached hereto and marked Exhibit "A" and that the McAdoos
did not pay the Johnsons for the tax portion of the rent,
which was due and payable prior to the date of settlement,
January 31, 2001. Any recovery by the Defendants would
therefore unjustly enrich the Defendants.
7. Admitted.
8. Exhibit "D" speaks for itself and no further
answer is required.
9. The Plaintiffs have paid the approximate taxes
due and payable up and to the date of settlement, January
31, 2001, to the Johnsons. Tax prorations have been made
in accordance with the standard procedure and in accordance
with Agreement of Sale then used for real estate
transactions conducted in Cumberland County.
10. Exhibit "F" speaks for itself and no further
answer is required.
11. Exhibit "G" speaks for itself. By way of further
answer, Plaintiffs sought from the Defendants a copy of an
Assignment of Rents from the Johnsons to the Defendants.
No such Assignment has been produced by the Defendants,
which would indicate that the Defendants are entitled to
the rent in arrears.
12. Exhibit "H" speaks for itself and no further
answer is required.
13. Exhibit "H" speaks for itself. The appurtenance
clause of a deed is of historical significance only and may
be deleted. The deed conveys rents and profits
prospectively only.
14. The averments of paragraph 14 state a conclusion
of law and no further answer is required.
15. The averments of paragraph 15 state a conclusion
of law and no further answer is required.
16. The averments of paragraph 16 state a conclusion
of law and no further answer is required.
17. Denied. The Plaintiffs, actions have been in
accordance with customary real estate practice in the
County of Cumberland and throughout the Commonwealth of
Pennsylvania, contrary to the unreasonable expectations and
demands of the Defendants.
18. The averments of paragraph 18 state arguments
and/or conclusions of law and no further answer is
required.
19. Defendants' actions with regard to the South
Middleton Township Subdivision Plan occurred prior to
resolution of the matters with the township. The final
legal description must be approved by the township.
Defendants' efforts have been of no benefit to any party
and counsel for the Defendants was so advised.
20. Denied. To the contrary, counsel fees are
incurred by the Plaintiffs because of the arbitrary,
obdurate and vexatious conduct of the Defendants. If
counsel fees are to be awarded, they should be awarded to
the Plaintiffs pursuant to 42 Pa.C.S.§2503(7).
21. Denied. Proof thereof is required at the time of
trial. By way of further answer, Plaintiffs have incurred
counsel fees of $1,125.00 in their good faith efforts to
resolve this matter.
22. Denied. To the contrary, counsel fees should be
awarded by statute 42 Pa.C.S.§2503(7) to the Plaintiffs.
Plaintiffs further ask Your Honorable Court to reconsider
the Plaintiffs' request for counsel fees from the time of
trial, as a result of this Petition and in light of the
unreasonable position of the Defendants which has permeated
this entire litigation.
23. Denied. No further answer is required as the
averments in paragraph 23 state a conclusion of law.
24. Denied. No further answer is required as the
averments in paragraph 24 state a conclusion of law.
25. Denied. No answer is required as the averments
of paragraph 25 state a conclusion of law. By way of
further answer, the Plaintiffs' action at the time of
trial, by filing this Petition and throughout the entire
proceeding, have demonstrated a complete lack of respect
for a contract which they knowingly were bound by and which
was sustained by Your Honorable Court's Order. The
Defendants know, or should have known, that they have no
right to any proration of rent prior to the date they
acquired the property, January 31, 2001, without the
production of an Assignment of Past Due Rent. In further
answer, the HUD1 from the time of settlement demonstrates
that the Defendants did not reimburse the Johnsons for the
rent, but would be unjustly enriched if the rents were paid
to the Defendants.
26. Denied. No further answer is required as the
averments in paragraph 26 state a conclusion of law.
27. No answer is required.
WHEREFORE, Plaintiffs request Your Honorable Court to
enter an Order confirming the payments made by the
Plaintiffs to the Defendants as the accurate amount of
taxes owed by the Plaintiffs in accordance with your order
and awarding counsel fees to the Plaintiffs in the amount
of $ 1,1025.00.
Dated: Respec submitted,
?9
Rober C. Saidis, Esquire
Attorney for Plaintiffs
Supreme Court ID #21458
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
717-243-6222
VJWFICATION
I verify that the statements made herein are true and
correct. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. 9 4904, relating to
unworn falsification to authorities.
DATED : 11- &-n!] ??? ? ?
Ra nd E. Diehl
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Answer to Petition for
Enforcement of Decree was served this date via United States
Mail, postage prepaid, addressed as follows:
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
SAIDIS, FLOWER & LINDSAY
Dated: % D 9
Phyllis M Coy
HE
.' ;r.
RAYMOND E. DIEHL
and GENEVIEVE A.
DIEHL, husband and
wife,
Plaintiffs
V.
SOUTH MIDDLETON
TOWNSHIP and JOHN
MCADOO and CATHY
MCADOO, Husband and
Wife,
Defendants
ORDER OF COURT
AND NOW, this 16th day of November, 2009, upon consideration of Defendants'
Petition for Enforcement of Decree and Plaintiff s Answer thereto, a hearing is scheduled
for Tuesday, January 12, 2010, at 1:30 p.m., in Courtroom No. 1, Cumberland County
Courthouse, Carlisle, Pennsylvania.
Robert C. Saidis, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
athan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
:rc
I t ?-: S rnz t tscc
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 08-1234 CIVIL TERM
J
BY THE COURT,
ICE
Ttt-ROOOTAW
'v i e PM 3:28
PENPvS'UANIA
RAYMOND E. DIEHL
and GENEVIEVE A.
DIEHL, husband and
wife,
Plaintiffs
V.
SOUTH MIDDLETON
TOWNSHIP and JOHN
McADOO and CATHY
MCADOO, Husband and
Wife,
Defendants
: IN THE COURT OF CON
CUMBERLAND COUNT
CIVIL ACTION - LAW
NO. 08-1234 CIVIL TER
IN RE: DEFENDANTS' PETITION FOR ENFORCEMENT
OF DECREE
ORDER OF COURT
AND NOW, this 12th day of January, 2010, upon agreement of counsel, the
hearing previously scheduled for January 12, 2010, is CONTINUED GENERALLY.
Counsel are directed to notify the Court by motion if a hearing in this matter is required
or when a settlement has been reached.
Robert C. Saidis, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiffs
Lathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Attorney for Defendants
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C:J
BY THE COURT,
k L. rte' ?.
r?
J Wesley OBI r, Jr.,
f
RAYMOND E. DIEHL and GENEVIEVE
DIEHL, Husband and Wife,
Plaintiffs
V.
JOHN McADOO and CATHY MCADOO,
Husband and Wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2008-1234 Civil Term
CIVIL ACTION -
IN MANDAMUS AND EQUITY
PRAECIPE TO WITHDRAW
LIS PENDENS
TO THE PROTHONOTARY:
Please mark the Lis Pendens filed against real estate known and numbered as 1538
Holly Pike, South Middleton Township, Cumberland County, Pennsylvania owned by the
Defendants, John and Cathy McAdoo, husband and wife, and more fully described in the deed
recorded in the office of the Recorder of Deeds of Cumberland County in Deed Book 238, Page
1012 withdrawn.
The addresses of the parties in this matter are as follows:
SAMIS,
FLOWER &
LINDSAY
AT[ORNM-AT-
26 West High Street
Carlisle, PA
Plaintiffs: Raymond E. and Genevieve A. Diehl
401 Myers Road
Boiling Springs, PA 17007
Defendants: John and Cathy McAdoo
1538 Holly Pike t
Carlisle, Pa 17015 n i77
Respectfully submitted,
ti
Date 3 b
r?
Kbert C. Saidis, Esquire
Attorney for Plaintiffs
Supreme Court ID #21458
Saidis, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
717-243-6222
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RAYMOND E. DIEHL and GENEVIEVE
DIEHL, Husband and Wife,
Plaintiffs
V.
JOHN McADOO and CATHY MCADOO,
Husband and Wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2008-1234 Civil Term
CIVIL ACTION -
IN MANDAMUS AND EQUITY
C
PRAECIPE FOR WITHDRAWAL OF APPEARANCE
TO THE PROTHONOTARY:
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Please withdraw my appearance on behalf of Raymond E. Diehl and Genevieve Diehl in the
above captioned matter.
Date:
obert C,. aidis, sq.
Supreme Court ID #21458
26 West High Street
Carlisle, PA 17013
717-243-6222
Please enter my appearance on behalf of Raymond E. Diehl and Genevieve Diehl in the
above captioned matter.
Date: Y,113 ,Q S . /2.
Christopher E. Rice, Es .
Supreme Court ID
# Q
10 East High street
Carlisle, PA 17013
717- 243-3341