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Home My WebLink About08-2776Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 frg ench6Dkeeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. f38- a?7(o C?vi ler? Defendants . ACTION IN EJECTMENT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL D1NERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 frg ench(a-)keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. b F. a 171, et T ACTION IN EJECTMENT COMPLAINT IN EJECTMENT NOW COME Plaintiffs, CORNELIUS J. KEIM III and LINDA L. KEIM, by their attorneys, Keefer Wood Allen & Rahal, LLP, and make this Complaint, averring as follows: 1. Plaintiffs are CORNELIUS J. KEIM III and LINDA L. KEIM, husband and wife, adult individuals residing at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 2. Plaintiffs are title owners of the parcel of land, together with improvements, located at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Plaintiffs' Tract"), being more particularly bounded and described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. 3. Defendants are PETER R. WILSON, JR. and SHARON J. WILSON, husband and wife, adult individuals residing at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 4. Defendants are title owners of the parcel of land, together with improvements, located at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Defendants' Tract"), being more particularly bounded and described as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. 5. An abstract of title to Plaintiffs' Tract is attached hereto as Exhibit "C" and incorporated herein by this reference. 6. Plaintiffs have the immediate and unqualified right of possession over the entirety of Plaintiffs' Tract, having granted neither a leasehold interest nor any other possessory right to any party, including Defendants. 7. Defendants have unlawfully encroached upon Plaintiffs' Tract by allowing a portion of their pool decking and fencing to be located on Plaintiffs' Tract. A foliage buffer located near the encroachments is owned by Plaintiffs. 8. Attached hereto as Exhibit "D" is a copy of a survey performed by Hartman and Associates, Inc. depicting the location of Defendants' pool-related encroachments. 9. Additionally, Defendants have unlawfully encroached upon a portion of Plaintiffs' Tract by allowing a portion of their rock garden to be located on Plaintiffs' Tract. 10. On information and belief, it is alleged that a portion of Defendants' irrigation piping may unlawfully encroach upon Plaintiffs' Tract. -2- 11. Plaintiffs notified Defendants of the unlawful encroachments in writing and requested that the encroachments be resolved under a permissive license arrangement, terminable at will, or that they be removed. 12. Defendants have refused to enter into a permissive license arrangement for the encroachments or to remove them and have instead demanded that the encroachments be allowed to remain under a permanent easement, which Plaintiffs are unwilling to grant. 13. Defendants and their encroachments should be ejected from Plaintiffs' Tract. 14. Plaintiffs incurred survey costs of $1,365 to discover Defendants' encroachments, which costs would not have been incurred but for Defendants' unlawful use of Plaintiffs' Tract. 15. Despite repeated demands, Defendants have failed to reimburse Plaintiffs for their damages in the form of survey costs. WHEREFORE, Plaintiffs demand judgment for ejectment in their favor and against Defendants for removal of Defendants' unlawful encroachments, together with damages in the amount of $1,365 and attorneys' fees. Dated: April 1L, 2008 KEEFER WOOD ALLEN & RAHAL, LLP B G . Fr nch, Esquire Attorney I.D. 25810 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim -3- VERIFICATION We, Cornelius J. Keim and Linda L. Keim, hereby certify that the facts in the foregoing Complaint are true and correct to the best of our knowledge, information and belief, and further state that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Cornelius J. Keim III Lida . Keim Dated: April /? , 2008 -4- PLAINTIFFS' TRACT ALL THAT CERTAIN lot or piece of land, with the buildings and improvements thereon erected, situate in Hampden Township, Cumberland County, more particularly bounded and described as follows, to wit: BEGINNING at a point at the northeast corner of Orr's Bridge Road and Bellows Drive, on the hereinafter mentioned Plan of Lots; thence by the eastern side of Orr's Bridge Road, North 31 degrees 17 minutes West, 180 feet to a point at lands now or late of Grandview Heights, Inc.; thence by said lands North 82 degrees 25 minutes East, 16098 feet to a point at the dividing line between Lot Nos. 1 and 2, Block "P", of the Plan; thence by said dividing line South 14 degrees 03 minutes 08 seconds East, 12894 feet to a point on the northern side of Bellows Drive; thence by the northern side of Bellows Drive by an arc curving to the left having a radius of 175 feet an arc distance of 5263 feet (erroneously referred to in deed as 56.23 feet); thence continuing along the northern side of Bellows Drive, South 58 degrees 43 minutes West, 57.37 feet to a point on the northeast corner of Orr's Bridge Road and Bellows Drive, the place of BEGINNING. BEING ALL OF LOT NO. 1, Block "P", Plan No. 14, Pinebrook, which Plan is recorded in the Cumberland County Recorder's Office in Plan Book 23, Page 148. EXHIBIT "A" DEFENDANTS'TRACT ALL THAT CERTAIN lot or piece of ground situate in Hampden Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the northern side of Bellows Drive, which point is 110.00 feet in an eastern direction from the northeast corner of Orr's Bridge Road and Bellows Drive at the dividing line between Lots Nos. 1 and 2, Block "P", of the hereinafter mentioned Plan; thence by said dividing line, North 14 degrees 03 minutes 08 seconds West, 128.94 feet to a point at lands now or formerly of Grand Vue Heights, Inc.; thence by said lands, North 82 degrees 25 minutes East, 104.48 feet to a point at the dividing line between Lots Nos. 2 and 3, Block "P" of the Plan; thence by said dividing line, South 07 degrees 35 minutes East, 127.00 feet to a point on the northern side of Bellows Drive; thence by the northern side of Bellows Drive, South 82 degrees 25 minutes West, 70.24 feet to a point; thence continuing along the northern side of Bellows Drive by an arc curving to the left, having a radius of 175.00 feet, an arc distance of 19.76 feet to a point at the dividing line between Lots Nos. 1 and 2, Block "P" of the Plan, the place of BEGINNING. BEING all of Lot No. 2, Block "P", Plan 14, Pinebrook, which Plan is recorded in the Cumberland County Recorder's Office, in Plan Book 23, Page 148. EXHIBIT "B" ABSTRACT OF TITLE - PLAINTIFFS' TRACT Owners 1975-1976 - Glen R. Chamberlin, Robert L. Chamberlin, and Eddie G. Chamberlin, t/d/b/a Chamberlin & Sons, by Deed dated November 20, 1975, and recorded in Deed Book I-26, Page 647. Owners 1976-Present - Cornelius J. Keim III, and Linda L. Keim, husband and wife, by Deed dated June 24, 1976, and recorded in Deed Book "Q," Volume 26, Page 679. EXHIBIT "C" / P/N (SET) 3 D.B. ok r COURSE ARMS NA8 GOLF' CO ?O yO O (? T O REGISTERED PP07SSI0(VAL r; IU:lr777 / P/N (SET) _ - ---' ?o m a WAa s 'lin G. 679 m g ECK NIL BRUCE J. & SHANNON GRAHAM R. B. 269-2726 LOT #2 P. B. 23, PG. 148 TAX PARCEL # 10-18-1312- 049 1 Rj\6 0 .oll b #3811 (SET) / \-CHD. 9RG-S 6779'53' W CHD. D/ST =52.43' 2g R=1 52.63' T=26.51' 40 0 20 40 d 1773'51.53" 1 1 1 GRAPHIC SCALE 1 iach - 40 !t f HARTMAN AND ASSOCIATES, INC. ENGINEERS a YoRs 2101 CRCHA ROAD Cm.'r "L." rw*mv -vm" T7011 CM 7=-34W FAX CM 737 - 20M EMIAL - Ind o hw*nwvuvdkosocxmm N/L CORNELIUS J & LINDA L. KEIM "0 VOL. 26, P LOT #1 P. B. 23, G. 148 TAX PARCEL # 10-18-1312- 048 1 +? WALL + OROVr A FENCE ftoyalawkwr ley , Q W 1 v z LOT ,T ENCROA CHMEN T ENLARGEMEN T 1 AO 20' 3813 BELLOWS DRIVE PINEBROOK HAMPDEN TOWNSHIP. FILE 07011PLAT SCALE : 1" - 40' DATE 03/13/2007 PROJECT : 07011 REVISED SURVEY BOOK :1216-1 EXHIBIT "D" t ate' ? ?-ra (A ,.a U 0 r,: a _ 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT NOTICE TO PLEAD To: Cornelius J. Keim III and Linda L. Keim c/o Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17108-1963 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Date: Kay 21, 2008 Respectfully submitted, REAGER & ADLER, P.C. Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter R. Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, No. 08-2776 Civil Term V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. ACTION IN EJECTMENT DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, come Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, collectively referred to hereinafter as "Defendants", by their attorneys, Reager & Adler, P.C., and make Preliminary Objections to the Complaint in Ejectment filed by Plaintiffs, Cornelius J. Keim III and Linda L. Keim, collectively referred to hereinafter as the "Plaintiffs", and in support thereof aver as follows: ANN, . PRELIMINARY OBJECTION - I FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT - Pa.R.C.P. 1028(a)(2) Plaintiffs, in their Complaint in Ejectment at 112, aver that the Defendants have refused to enter into a permissive license arrangement for the alleged encroachments, and further aver that Defendants have demanded that the Plaintiffs grant to the Defendants a permanent easement for the alleged encroachments. 2. Under Pennsylvania Rule of Evidence 408, evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to validity, is not admissible to prove liability for the claim. 3. As Plaintiffs' Complaint in Ejectment, at ¶ 12, avers facts evidencing settlement negotiations between the parties, said ¶ 12 should be stricken in its entirety as said paragraph fails to conform to a Pennsylvania rule of court. WHEREFORE, Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, respectfully request that their Preliminary Objections be sustained, and that ¶ 12 of Plaintiffs' Complaint be stricken in its entirety. PRELIMINARY OBJECTION - II FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT - Pa.R.C.P. 1028(a)(2) 4. Paragraphs 1- 3 of Defendants' Preliminary Objections are incorporated by reference as if set forth fully herein. 2 5. Plaintiffs, in their Complaint in Ejectment at ¶ 14, aver that they have incurred survey costs of $1,365 in connection with this matter, and, in their prayer for relief, Plaintiffs' demand reimbursement from the Defendants for those costs. 6. Under Pennsylvania law, in an ejectment action, a property owner electing the remedy of ejectment may not also recover damages from the opposing party. See Baugh v. Berdoll, 227 Pa. 420, 76 A. 207 (1910). 7. As Plaintiffs' Complaint in Ejectment, at ¶ 14, and in the prayer for relief, avers facts evidencing Plaintiffs' incurring survey costs of $1,365 in connection with this matter, and demands judgment against Defendants for said costs, said ¶ 14 should be stricken in its entirety, and the portion of the prayer for relief demanding judgment against Defendants for said survey costs should be stricken as well, as both fail to conform to a rule of law. WHEREFORE, Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, respectfully request that their Preliminary Objections be sustained, and that all of ¶ 14, and the portion of the prayer for relief demanding judgment for Plaintiffs' survey costs, of Plaintiffs' Complaint be stricken in their entirety. PRELIMINARY OBJECTION - III FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT - Pa.RC.P. 1028(a)(2) Paragraphs 1- 7 of Defendants' Preliminary Objections are incorporated by reference as if set forth fully herein. 9. Plaintiffs, in their Complaint in Ejectment at the prayer for relief, demand that the Defendants be ordered to pay the Plaintiffs' attorneys' fees. 10. Under Pennsylvania law, it is generally accepted that the parties are responsible for their own attorneys' fees, unless statute, or contract between the parties, provides otherwise. See Putt v. Yates American Mach. Co., 722 A.2d 217 (Pa. Super. 1998). 11. As Plaintiffs' Complaint in Ejectment, at the prayer for relief, includes a demand for judgment against Defendants for attorneys' fees without basis in statute or contract, said demand should be stricken in its entirety as it fails to conform to Pennsylvania law. WHEREFORE, Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, respectfully request that their Preliminary Objections be sustained, and that the demand for attorneys' fees in Plaintiffs' Complaint be stricken in its entirety. Respectfully submitted, REAGER & ADLER, P.C. Dated: May ZI, 2008 Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, No. 08-2776 Civil Term V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. ACTION IN EJECTMENT CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid as follows: Gary E. French, Esquire 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Dated: May -'2 qt 2a0 9 7--- - Peter R. Wilson, Esquire ";?,5 ".;t S ` r ; . .. :;? :.r e .. ?? ? f -'y... 3 ?? x } f'. 1 : ..? Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 french keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, V. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2;;; IVIL TERM PETER R. WILSON, JR and SHARON J. WILSON NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 Defendants . ACTION IN EJECTMENT NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 gfrench(ikeeferwood. com CORNELIUS J. KEIM III and LINDA L. KEIM, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 08-2776 CIVIL TERM PETER R. WILSON, JR. and SHARON J. WILSON Defendants ACTION IN EJECTMENT AMENDED COMPLAINT IN EJECTMENT NOW COME Plaintiffs, CORNELIUS J. HEIM III and LINDA L. KEIM, by their attorneys, Keefer Wood Allen & Rahal, LLP, and make this Amended Complaint, averring as follows: 1. Plaintiffs are CORNELIUS J. KEIM III and LINDA L. KEIM, husband and wife, adult individuals residing at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 2. Plaintiffs are title owners of the parcel of land, together with improvements, located at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Plaintiffs' Tract"), being more particularly bounded and described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. 3. Defendants are PETER R. WILSON, JR. and SHARON J. WILSON, husband and wife, adult individuals residing at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 4. Defendants are title owners of the parcel of land, together with improvements, located at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Defendants' Tract"), being more particularly bounded and described as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. 5. An abstract of title to Plaintiffs' Tract is attached hereto as Exhibit "C" and incorporated herein by this reference. 6. Plaintiffs have the immediate and unqualified right of possession over the entirety of Plaintiffs' Tract, having granted neither a leasehold interest nor any other possessory right to any party, including Defendants. 7. Defendants have unlawfully encroached upon Plaintiffs' Tract by allowing a portion of their pool decking and fencing to be located on Plaintiffs' Tract. A foliage buffer located near the encroachments is owned by Plaintiffs. Attached hereto as Exhibit "D" is a copy of a survey performed by Hartman and Associates, Inc. depicting the location of Defendants' pool-related encroachments. 9. Additionally, Defendants have unlawfully encroached upon a portion of Plaintiffs' Tract by allowing a portion of their rock garden to be located on Plaintiffs' Tract. 10. On information and belief, it is alleged that a portion of Defendants' irrigation piping may unlawfully encroach upon Plaintiffs' Tract. -2- 11. Plaintiffs notified Defendants of the unlawful encroachments in writing and requested that the encroachments be removed. 12. Defendants have refused to remove the encroachments. 13. Defendants and their encroachments should be ejected from Plaintiffs' Tract. 14. Plaintiffs were required to incur survey costs of $1,365 to verify that Defendants' improvements that encroach upon Plaintiffs' Tract, which costs constitute consequential damages and would not have been incurred but for Defendants' unlawful use of Plaintiffs' Tract. 15. Despite repeated demands, Defendants have failed to reimburse Plaintiffs for their damages in the form of survey costs. COUNTI EJECTMENT 16. The averments set forth in Paragraphs 1 through 15 of this Complaint are incorporated herein as though fully set forth. WHEREFORE, Plaintiffs demand judgment for ejectment in their favor and against Defendants for removal of Defendants' unlawful encroachments. COUNT II CLAIM FOR DAMAGES UNDER PA.RC.P. 1055 17. The averments set forth in Paragraphs 1 through 15 of this Complaint are incorporated herein as though fully set forth. 18. Pa.R.C.P. 1055 provides that plaintiffs in an action in ejectment may state a cause of action for "any other damages which arise from defendant's possession of land." -3- 19. Plaintiffs' survey costs arose from Defendants' possession of a portion of Plaintiffs' Tract. WHEREFORE, Plaintiffs demand judgment in their favor and against Defendants in the amount of $1,365. Dated: June oC , 2008 KEEFER WOOD ALLEN & RAHAL, LLP B Gary .French, Esquire Attorney I.D. 25810 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim -4- VERIFICATION We, Cornelius J. Keim and Linda L. Keim, hereby certify that the facts in the foregoing Amended Complaint are true and correct to the best of our knowledge, information and belief, and further state that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. O Yg4 Cornelius J. Keim II r 4in.eim Dated: June / , 2008 -5- PLAINTIFFS' TRACT ALL THAT CERTAIN lot or piece of land, with the buildings and improvements thereon erected, situate in Hampden Township, Cumberland County, more particularly bounded and described as follows, to wit: BEGINNING at a point at the northeast corner of Orr's Bridge Road and Bellows Drive, on the hereinafter mentioned Plan of Lots; thence by the eastern side of Orr's Bridge Road, North 31 degrees 17 minutes West, 180 feet to a point at lands now or late of Grandview Heights, Inc.; thence by said lands North 82 degrees 25 minutes East, 16098 feet to a point at the dividing line between Lot Nos. 1 and 2, Block "P", of the Plan; thence by said dividing line South 14 degrees 03 minutes 08 seconds East, 12894 feet to a point on the northern side of Bellows Drive; thence by the northern side of Bellows Drive by an arc curving to the left having a radius of 175 feet an arc distance of 5263 feet (erroneously referred to in deed as 56.23 feet); thence continuing along the northern side of Bellows Drive, South 58 degrees 43 minutes West, 57.37 feet to a point on the northeast corner of Orr's Bridge Road and Bellows Drive, the place of BEGINNING. BEING ALL OF LOT NO. 1, Block "P", Plan No. 14, Pinebrook, which Plan is recorded in the Cumberland County Recorder's Office in Plan Book 23, Page 148. EXHIBIT "A" DEFENDANTS' TRACT ALL THAT CERTAIN lot or piece of ground situate in Hampden Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the northern side of Bellows Drive, which point is 110.00 feet in an eastern direction from the northeast corner of Orr's Bridge Road and Bellows Drive at the dividing line between Lots Nos. 1 and 2, Block "P", of the hereinafter mentioned Plan; thence by said dividing line, North 14 degrees 03 minutes 08 seconds West, 128.94 feet to a point at lands now or formerly of Grand Vue Heights, Inc.; thence by said lands, North 82 degrees 25 minutes East, 104.48 feet to a point at the dividing line between Lots Nos. 2 and 3, Block "P" of the Plan; thence by said dividing line, South 07 degrees 35 minutes East, 127.00 feet to a point on the northern side of Bellows Drive; thence by the northern side of Bellows Drive, South 82 degrees 25 minutes West, 70.24 feet to a point; thence continuing along the northern side of Bellows Drive by an arc curving to the left, having a radius of 175.00 feet, an arc distance of 19.76 feet to a point at the dividing line between Lots Nos. 1 and 2, Block "P" of the Plan, the place of BEGINNING. BEING all of Lot No. 2, Block "P", Plan 14, Pinebrook, which Plan is recorded in the Cumberland County Recorder's Office, in Plan Book 23, Page 148. EXHIBIT "B" ABSTRACT OF TITLE - PLAINTIFFS' TRACT Owners 1975-1976 - Glen R. Chamberlin, Robert L. Chamberlin, and Eddie G. Chamberlin, t/d/b/a Chamberlin & Sons, by Deed dated November 20, 1975, and recorded in Deed Book I-26, Page 647. Owners 1976-Present - Cornelius J. Keim III, and Linda L. Keim, husband and wife, by Deed dated June 24, 1976, and recorded in Deed Book "Q," Volume 26, Page 679. EXHIBIT "C" / P/N (S£T) GE GO`F COURSE ARMS NA?160 s_„_ r D. B. c? ,d_ O o \ m r -? Z O N/L CORNELIUS J. & LINDA L. KEIM "Q", VOL. 26, PG. LOT #1 P. B. 23, PG. 148 TAX PARCEL # 70- 78-1312- 048 / PIN (S£T) _ - -? w ti WALL FENCE K s 679 < CK -11-4) N/L BRUCE J. & SHANNON GRAHAM R,3. 269-2726 LOT #2 P.B. 23, Pr; 748 TAX PARCEL # 10- 78-1372- 049 hl , ?D ? #3811 f PIN (SET) '\-CHD. BRG-S 677953" W CHD. D/Sr 52.43' R? 1-7 A 52.63' T=26.51' 40 D 20 40 A-177351.53" \25r i y / GRAPHIC SCALE V 1 'inch S 4D !L " WALL ENCI?DACLGIENT FENC'F 1.B9 OVER L/NE ENC/?OACHA/£NT ?,Y.45 OVER 419V£ 1 SEAL LL, 1 i LOT Z LOT 1 cn O x o?- # 1 #7 0 Z cn cz . Q C?14 AIEq I?ECrsrE11El DECK Pi;D?GSS0 1rAL` ENC/j0AC"Af£NT 0.72 OVER LINE ENCROA CHMEN T ENLARGEMENT ')su02:7142E 7A?=207 r? - v r HARTMAN AND NASSOCIATES, INC. EWN4EERS & SURVEYORS 2101 QRCHARD (ROAD CAW HILL- MB*4WLVAl" 11011 m (r 737 ? EXHIBIT D EMAIL - nrwl O 3813 BELLOWS DRIVE PINEBROOK HAMPDEN TOWNSHIP. FILE 07011PLAT SCALE : 1" - 40' DATE 03/13/2007 PROJECT : 07011 ocvrccn cicvcv cnn? ? n+c +.+? CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Amended Complaint upon Defendants this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Linus E. Fenicle, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 REEFER WOOD ALLEN & RARAL, LLP G French Dated: June 3, 2008 `?` ?i ,? ?cs c.':? , ., , ? ?, ? t =' '?" C . Ej ?'?, r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT NOTICE TO PLEAD To: Cornelius J. Keim III and Linda L. Keim c/o Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17108-1963 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Date: J uVY, Z31( 9009 Respectfully submitted, RE & ADLER, P.C. inus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants REAGER & ADLER, P.C. BY: Linus E. Feniele, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter R. Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT AND NOW, come Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, collectively referred to hereinafter as "Defendants", by their attorneys, Reager & Adler, P.C., and make Preliminary Objections to the Amended Complaint in Ejectment filed by Plaintiffs, Cornelius J. Keim III and Linda L. Keim, collectively referred to hereinafter as the "Plaintiffs", and in support thereof aver as follows: PRELIMINARY OBJECTION - I FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT - Pa.R.C.P. 1028(a)(2) Plaintiffs, in their Amended Complaint in Ejectment at T 14, T 18, and T 19 aver that they have incurred survey costs of $1,365 in connection with this matter, and, in their prayer for relief at Count II, Plaintiffs' demand reimbursement from the Defendants for those costs. 2. Under Pennsylvania law, in an ejectment action, a property owner electing the remedy of ejectment may not also recover damages from the opposing party. See Baugh v. Bergdoll, 227 Pa. 420, 76 A. 207 (1910). 3. As Plaintiffs' Amended Complaint in Ejectment, at 114, 118, T 19 and in the prayer for relief at Count II, avers facts evidencing Plaintiffs' incurring survey costs of $1,365 in connection with this matter, and demands judgment against Defendants for said costs, said 114, T 18, and T 19 should be stricken in their entirety, and the prayer for relief at Count II demanding judgment against Defendants for said survey costs should be stricken as well, as all fail to conform to a rule of law or court. WHEREFORE, Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, respectfully request that their Preliminary Objections be sustained, and that all of T 14, T 18, T 19, and the portion of the prayer for relief at Count II demanding judgment for Plaintiffs' survey costs, of Plaintiffs' Amended Complaint be stricken in their entirety. PRELIMINARY OBJECTION - II FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT - Pa.R.C.P. 1028(a)(2) 4. Paragraphs 1- 3 of Defendants' Preliminary Objections are incorporated by reference as if set forth fully herein. 5. Plaintiffs, in their Amended Complaint in Ejectment at 114, T 18, T 19 aver that they have incurred survey costs of $1,365 in connection with this matter, and, in their prayer for relief at Count II, Plaintiffs' demand reimbursement from the Defendants for those costs pursuant to Pa.R.C.P. 1055. 2 6. Pursuant to Pa.R.C.P. 1055, a property owner electing the remedy of ejectment may recover limited damages from the opposing party for "...rents, profits or any other damages which arise from the defendant's possession of the land...". The survey costs incurred by Plaintiffs in the ordinary course of their discovery in this matter, like attorneys' fees, are not "damages which arise from defendants' possession of the land" as contemplated by Pa.R.C.P. 1055. See, Pa.R.C.P. 1055 and Explanatory Comment - 1979. 7. As Plaintiffs' Amended Complaint in Ejectment, at ¶ 14, ¶ 18, ¶ 19, and in the prayer for relief at Count II, avers facts evidencing Plaintiffs' incurring survey costs of $1,365 in connection with this matter, and demands judgment against Defendants for said costs, said 114, ¶ 18, and 119 should be stricken in their entirety, and the portion of the prayer for relief at Count H demanding judgment against Defendants for said survey costs should be stricken as well, as all fail to conform to a rule of law or court. WHEREFORE, Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, respectfully request that their Preliminary Objections be sustained, and that all of ¶ 14, ¶ 18, ¶ 19, and the portion of the prayer for relief at Count II demanding judgment for Plaintiffs' survey costs, of Plaintiffs' Amended Complaint be stricken in their entirety. PRELIMINARY OBJECTION - III FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT - Pa.R.C.P. 1028(a)(2) Paragraphs 1- 7 of Defendants' Preliminary Objections are incorporated by reference as if set forth fully herein. 9. Plaintiffs, in their Amended Complaint in Ejectment at ¶ 14, ¶ 18, and ¶ 19 aver that they have incurred survey costs of $1,365 in connection with this matter, and, in their prayer for relief at Count II, Plaintiffs' demand reimbursement from the Defendants for those costs. 10. As a general rule no costs are allowed in any proceeding at common law, and the right to costs, if available, is dependent upon statute or rules of court. See Guido v. Greensburg Salem School Dist., 7 Pa. D. & C.3d 73 (Pa.Com.Pl. 1978), citing Tunison v. Com., 31 A.2d 521 (1943). 11. As Plaintiffs' Amended Complaint in Ejectment, at ¶ 14, ¶ 18, ¶ 19 and in the prayer for relief at Count II, avers facts evidencing Plaintiffs' incurring survey costs of $1,365 in connection with this matter, and demands judgment against Defendants for said costs, said ¶ 14, ¶ 18, and ¶ 19 should be stricken in their entirety, and the prayer for relief at Count II demanding judgment against Defendants for said survey costs should be stricken as well, as all fail to conform to a rule of law or court. WHEREFORE, Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, respectfully request that their Preliminary Objections be sustained, and that all of ¶ 14, ¶ 18, ¶ 19, and the portion of the prayer for relief at Count II demanding judgment for Plaintiffs' survey costs, of Plaintiffs' Amended Complaint be stricken in their entirety. Respectfully submitted, REAGER & ADLER, P.C. Dated: June 2, 2008 (_,I,Mus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid as follows: Gary E. French, Esquire 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Dated: Tl-le- 23(28 -- -Z? Peter R. Wilson, Esquire 3-1 1 Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 gfrench(a)keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM ACTION IN EJECTMENT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 french keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 08-2776 CIVIL TERM PETER R. WILSON, JR and SHARON J. WILSON Defendants . ACTION IN EJECTMENT SECOND AMENDED COMPLAINT IN EJECTMENT NOW COME Plaintiffs, CORNELIUS J. KEIM III and LINDA L. KEIM, by their attorneys, Keefer Wood Allen & Rahal, LLP, and make this Amended Complaint, averring as follows: 1. Plaintiffs are CORNELIUS J. KEIM III and LINDA L. KEIM, husband and wife, adult individuals residing at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 2. Plaintiffs are title owners of the parcel of land, together with improvements, located at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Plaintiffs' Tract"), being more particularly bounded and described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. 3. Defendants are PETER R. WILSON, JR. and SHARON J. WILSON, husband and wife, adult individuals residing at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 4. Defendants are title owners of the parcel of land, together with improvements, located at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Defendants' Tract"), being more particularly bounded and described as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. 5. An abstract of title to Plaintiffs' Tract is attached hereto as Exhibit "C" and incorporated herein by this reference. 6. Plaintiffs have the immediate and unqualified right of possession over the entirety of Plaintiffs' Tract, having granted neither a leasehold interest nor any other possessory right to any party, including Defendants. 7. Defendants have unlawfully encroached upon Plaintiffs' Tract by allowing a portion of their pool decking and fencing to be located on Plaintiffs' Tract. A foliage buffer located near the encroachments is owned by Plaintiffs. Additionally, Defendants have unlawfully encroached upon a portion of Plaintiffs' Tract by allowing a portion of their rock garden to be located on Plaintiffs' Tract. 9. On information and belief, it is alleged that a portion of Defendants' irrigation piping may unlawfully encroach upon Plaintiffs' Tract. 10. None of the encroachments would be costly to remove in comparison to the loss of title to a portion of Plaintiffs' Tract. -2- 11. Plaintiffs notified Defendants of the unlawful encroachments in writing and requested that the encroachments be removed. 12. Defendants have refused to remove the encroachments. 13. Defendants and their encroachments should be ejected from Plaintiffs' Tract. 14. In accordance with Pa. R. Civ. P. 1055, Plaintiffs specifically reserve the right to pursue a separate claim for damages for continuing trespass, damage to land, punitive damages and any other direct and consequential damages and fees permitted by law. WHEREFORE, Plaintiffs demand judgment for ejectment in their favor and against Defendants for removal of Defendants' unlawful encroachments, together with taxable costs. Dated: June 30, 2008 KEEFER WOOD ALLEN & RAHAL, LLP By Gary rench, Esquire Attorney I.D. 25810 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim -3- 06-27-08 12:18PM FROM-Keefer Wood Allen A Rahal 7172558050 T-170 P-014/015 F-640 VERIFICATION We, Cornelius J. Keim and Linda, L. Keim, hereby ceRify that the facts in the foregoing Second Amended Complaint are true and correct to the best of our knowledge, information and belief, and further state that false statements herein are made subject w the penalties of 18 Pa.C.S. § 4904 relating to tmsworn falsification to authorities. Cornelius J. Kelm III 7 -L Keirn Dated: June 2008 -4- CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Second Amended Complaint upon Defendants this date by depositing a true and correct copy of the same in the United States mail via certified mail-return receipt requested, first-class postage prepaid, addressed as follows: Linus E. Fenicle, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP BL: ary . rench Dated: June 30, 2008 t"? ? -r1 _ c._.. "a ? , ci ? -.., ,-?, ? ._. . <. ?-, ? ._ , , , _,?.. _ __ :. --,-z -' ; Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 gfrench ,keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM ACTION IN EJECTMENT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 gfrench(keeferwood. com CORNELIUS J. KEIM III and LINDA L. KEIM, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 08-2776 CIVIL TERM PETER R. WILSON, JR. and SHARON J. WILSON Defendants ACTION IN EJECTMENT SECOND AMENDED COMPLAINT IN EJECTMENT NOW COME Plaintiffs, CORNELIUS J. KEIM III and LINDA L. KEIM, by their attorneys, Keefer Wood Allen & Rahal, LLP, and make this Amended Complaint, averring as follows: 1. Plaintiffs are CORNELIUS J. REIM III and LINDA L. KEIM, husband and wife, adult individuals residing at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 2. Plaintiffs are title owners of the parcel of land, together with improvements, located at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Plaintiffs' Tract"), being more particularly bounded and described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. 3. Defendants are PETER R. WILSON, JR and SHARON J. WILSON, husband and wife, adult individuals residing at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 4. Defendants are title owners of the parcel of land, together with improvements, located at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Defendants' Tract"), being more particularly bounded and described as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. 5. An abstract of title to Plaintiffs' Tract is attached hereto as Exhibit "C" and incorporated herein by this reference. 6. Plaintiffs have the immediate and unqualified right of possession over the entirety of Plaintiffs' Tract, having granted neither a leasehold interest nor any other possessory right to any party, including Defendants. 7. Defendants have unlawfully encroached upon Plaintiffs' Tract by allowing a portion of their pool decking and fencing to be located on Plaintiffs' Tract. A foliage buffer located near the encroachments is owned by Plaintiffs. 8. Additionally, Defendants have unlawfully encroached upon a portion of Plaintiffs' Tract by allowing a portion of their rock garden to be located on Plaintiffs' Tract. 9. On information and belief, it is alleged that a portion of Defendants' irrigation piping may unlawfully encroach upon Plaintiffs' Tract. 10. None of the encroachments would be costly to remove in comparison to the loss of title to a portion of Plaintiffs' Tract. -2- 11. Plaintiffs notified Defendants of the unlawful encroachments in writing and requested that the encroachments be removed. 12. Defendants have refused to remove the encroachments. 13. Defendants and their encroachments should be ejected from Plaintiffs' Tract. 14. In accordance with Pa. R. Civ. P. 1055, Plaintiffs specifically reserve the right to pursue a separate claim for damages for continuing trespass, damage to land, punitive damages and any other direct and consequential damages and fees permitted by law. WHEREFORE, Plaintiffs demand judgment for ejectment in their favor and against Defendants for removal of Defendants' unlawful encroachments, together with taxable costs. Dated: June 30, 2008 KEEFER WOOD ALLEN & RAHAL, LLP CY--6Jary!B-.'Vr&ffi,, Esquire Attorney I.D. 25810 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim -3- 06-27-08 12:18Pt1 FRO*-Keefer Wood Allen A Rahal 7172558050 T-170 P.014/015 F-849 i VER MCATTON We, Cornelius J. Keim and Linda L. Y-eim, hereby certify that the facts in the foregoing Second Amended Complaint are true and correct to the best of our knowledge, infonnation and belief, and further state that false statements berein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. zzemu./ ,1 P i? Cornelius J. Keirnx III -L'k'a - - , 4:C ' u ------ --LfiiP7 j.. Keim, Dated: June 2008 -4- PLAINTIFFS' TRACT ALL THAT CERTAIN lot or piece of land, with the buildings and improvements thereon erected, situate in Hampden Township, Cumberland County, more particularly bounded and described as follows, to wit: BEGINNING at a point at the northeast corner of Orr's Bridge Road and Bellows Drive, on the hereinafter mentioned Plan of Lots; thence by the eastern side of Orr's Bridge Road, North 31 degrees 17 minutes West, 180 feet to a point at lands now or late of Grandview Heights, Inc.; thence by said lands North 82 degrees 25 minutes East, 16098 feet to a point at the dividing line between Lot Nos. 1 and 2, Block "P", of the Plan; thence by said dividing line South 14 degrees 03 minutes 08 seconds East, 12894 feet to a point on the northern side of Bellows Drive; thence by the northern side of Bellows Drive by an arc curving to the left having a radius of 175 feet an arc distance of 5263 feet (erroneously referred to in deed as 56.23 feet); thence continuing along the northern side of Bellows Drive, South 58 degrees 43 minutes West, 57.37 feet to a point on the northeast corner of Orr's Bridge Road and Bellows Drive, the place of BEGINNING. BEING ALL OF LOT NO. 1, Block "P", Plan No. 14, Pinebrook, which Plan is recorded in the Cumberland County Recorder's Office in Plan Book 23, Page 148. EXHIBIT "A" DEFENDANTS' TRACT ALL THAT CERTAIN lot or piece of ground situate in Hampden Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the northern side of Bellows Drive, which point is 110.00 feet in an eastern direction from the northeast corner of Orr's Bridge Road and Bellows Drive at the dividing line between Lots Nos. 1 and 2, Block "P", of the hereinafter mentioned Plan; thence by said dividing line, North 14 degrees 03 minutes 08 seconds West, 128.94 feet to a point at lands now or formerly of Grand Vue Heights, Inc.; thence by said lands, North 82 degrees 25 minutes East, 104.48 feet to a point at the dividing line between Lots Nos. 2 and 3, Block "P" of the Plan; thence by said dividing line, South 07 degrees 35 minutes East, 127.00 feet to a point on the northern side of Bellows Drive; thence by the northern side of Bellows Drive, South 82 degrees 25 minutes West, 70.24 feet to a point; thence continuing along the northern side of Bellows Drive by an are curving to the left, having a radius of 175.00 feet, an arc distance of 19.76 feet to a point at the dividing line between Lots Nos. 1 and 2, Block "P" of the Plan, the place of BEGINNING. BEING all of Lot No. 2, Block "P", Plan 14, Pinebrook, which Plan is recorded in the Cumberland County Recorder's Office, in Plan Book 23, Page 148. EXHIBIT "B" ABSTRACT OF TITLE - PLAINTIFFS' TRACT Owners 1975-1976 - Glen R. Chamberlin, Robert L. Chamberlin, and Eddie G. Chamberlin, t/d/b/a Chamberlin & Sons, by Deed dated November 20, 1975, and recorded in Deed Book 1-26, Page 647. Owners 1976-Present - Cornelius J. Keim III, and Linda L. Keim, husband and wife, by Deed dated June 24, 1976, and recorded in Deed Book "Q," Volume 26, Page 679. EXHIBIT "C" CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Second Amended Complaint upon Defendants this date by depositing a true and correct copy of the same in the United States mail via certified mail-return receipt requested, first-class postage prepaid, addressed as follows: Peter R. Wilson, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP 4: x iw'-_ French Dated: July 7, 2008 r. c. i. ? ,.? ? -,;? t , ?.' ?• ? _, _'} ?1. ?. ".? ??? ? ?? ...'. r?.. v ^y? .. ?-+ f.J ?, ?? ?? ? REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter R. Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. No. 08-2776 Civil Term ACTION IN EJECTMENT PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. DEFENDANTS' RESPONSE TO PLAINTIFFS' REQUEST FOR ADMISSIONS Pursuant to Pennsylvania Rule of Court 4014, Defendants answer and object to Plaintiffs' Requests for Admissions as follows: 1. GENERAL OBJECTIONS The answers of Defendants are subject to, qualified by, and limited by the following general objections, which apply to each specific request for admission ("RFA") as if incorporated therein and set forth in full in each answer: Defendants object to each RFA to the extent that it or any portion thereof is vague, ambiguous, overly broad, compound, argumentative, unintelligible or premature. 2. Defendants object to each RFA to the extent that it or any portion thereof seeks legal conclusions. Defendants object to each RFA to the extent that it or any portion thereof is oppressive, unduly burdensome, unreasonably expensive, or would require an unreasonable investigation on the part of Defendants. 4. Defendants object to each RFA to the extent that it or any portion thereof is unreasonably cumulative or duplicative. 5. Defendants object to each RFA to the extent that it or any portion thereof seeks discovery of information that is either not relevant to the subject matter of this action, not admissible at trial or not reasonably calculated to lead to the discovery or relevant or admissible evidence. 6. Defendants object to each RFA to the extent that it or any portion thereof seeks discovery of information protected from disclosure by the attorney-client privilege, the attorney work-product doctrine or any other applicable privilege, protection or restriction. 7. Defendants object to each RFA to the extent that it or any portion thereof seeks disclosure of confidential and/or proprietary business information, trade secrets or any other private information. 8. Defendants object to each RFA to the extent that it or any portion thereof seeks disclosure of information that constitutes settlement negotiations. 9. Defendants' efforts to obtain information responsive to the RFA's are ongoing and discovery is continuing. Therefore, Defendants reserve the right to amend, modify, or supplement their objections and answers in light of information of which they may become aware of subsequent to the date of these answers. II. CONDITIONS 1. The following responses are made without waiving or intending to waive, but on the contrary, intending to preserve and preserving: (a) all objections as to confidentiality, relevancy, materiality, privilege and admissibility as evidence for any purpose in subsequent proceedings or the trial of this or any other actions; (b) the right to object to the use of any information which may be provided, or the subject matter thereof, in any subsequent proceedings or the trial of this or any other action on any other grounds; (c) the right to object on any ground at any time to further discovery proceedings involving or relating to the subject matter of the requests for admissions; (d) the right at any time to revise, correct, supplement, clarify or amend this response in accordance with the Pennsylvania Rules of Court. 2. All responses to requests for admissions are based on Defendants' best understanding of the discovery requests and/or the terms used therein. Such responses cannot be properly used as evidence except in the context in which Defendants understood the requests and/or the terms used therein. ANSWERS TO REQUEST FOR ADMISSIONS Admitted. Defendants reserve the right to update their response to this request and other pleadings as discovery continues if during discovery Defendants elect to commission an independent survey of the common boundary and the results of that survey are inconsistent with the survey performed by Plaintiffs' surveyor. 2. Admitted. 3. Admitted that, based on the survey pins and wooden stakes placed by Plaintiffs' surveyor, it would appear that a portion of Defendants' pool decking is across the straight line between those survey pins and wooden stakes. 4. Admitted that, based on the survey pins and wooden stakes placed by Plaintiffs' surveyor, it would appear that a portion of Defendants' rock garden is across the straight line between those survey pins and wooden stakes. 5. Admitted that, based on the survey pins and wooden stakes placed by Plaintiffs' surveyor, it would appear that a portion of Defendants' irrigation system is across the straight line between those survey pins and wooden stakes. 6. Admitted to the extent that a portion of the pool decking consists of mortared landscaping blocks and wooden railings, and denied to the extent that the pool decking also consists of fill, stone, wood beams and posts, and concrete in which said certain wood posts are installed. 7. Defendants cannot admit or deny this requested item at this time, as Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 7. Defendants reserve the right to update their response to this request and other pleadings as discovery continues. Respectfully submitted, REAGE ADLER, P.C. Dated: August Jr , 2008 inus E. Fenicle, Esquire Attorney T.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants VERIFICATION We, Peter R. Wilson, Jr. and Sharon I Wilson, hereby verify that the averments of the foregoing document are true and correct to our personal knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: Date: L-5 L2- 8 CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid, as follows: Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Respectfully submitted, REAGER & ADLER, PC fAW By: _ Date: 6 Pe r R. Wilson, Esquire r?.a _ ? . ` ? ? . " ? ? ? , ? ,} A? "ti -!l sa j ' i-} ?? ,?>a . r ? :;. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, No. 08-2776 Civil Term V. ACTION IN EJECTMENT PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. NOTICE TO PLEAD To: Cornelius J. Keim III and Linda L. Keim c/o Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17108-1963 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED DEFENDANTS' ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, Date: Al 1,0 37 LOO'S RE LER, P.C. Lin ifs E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter R. Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT DEFENDANTS' ANSWER WITH NEW MATTER 1. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted. 4. Admitted. 5. Admitted upon information and belief. 6. Denied. The averments of Paragraph 6 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 6. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 7. Denied in part and admitted in part. Defendants admit that the foliage buffer is owned by Plaintiffs. The remaining averments of Paragraph 7 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every remaining factual averment. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 8. Denied. The averments of Paragraph 8 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph S. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 9. Denied. The averments of Paragraph 9 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 9. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 10. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 10. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 11. Admitted in part and denied in part. Defendants admit that they were notified of the alleged encroachments in writing, and that Plaintiffs, by this action, are requesting that said alleged encroachments be removed. However Defendants deny the averments of Paragraph 11 to the extent that they constitute conclusions of law to which no responsive pleading is required. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 12. Admitted in part and denied in part. Defendants admit that they have denied Plaintiffs' request to remove the alleged encroachments. However, Defendants deny the averments of Paragraph 12 to the extent that they constitute conclusions of law to which no responsive pleading is required. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 13. Denied. The averments of Paragraph 13 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 14. Denied. The averments of Paragraph 14 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. By way of further answer, it is denied that Plaintiffs have the right to pursue a separate claim for damages, whether in this action or in some future action. Any claim for damages arising from the alleged encroachment that Plaintiffs believe to be cognizable under Pa. R. Civ. P. 1055 should be joined by Plaintiffs at this time or be forever barred. Byway of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. NEW MATTER 15. Defendants incorporate herein by reference the averments of Paragraphs 1 through 14 above as if set forth fully herein. 16. Plaintiffs' Second Amended Complaint fails to state a cause of action upon which relief may be granted. 17. Plaintiffs' claims are barred due to the doctrine of estoppel. 18. Plaintiffs' claims are barred due the doctrine of laches. 19. Plaintiffs' claims are barred due to the doctrine of waiver. 20. Plaintiffs' claims are barred due to the doctrine of acquiescence. 21. Plaintiffs' claims are barred due to the doctrine of inadvertence. 22. Plaintiffs' claims are barred due to the doctrine of unclean hands. 23. Plaintiffs' claims are barred due to the doctrine of mistake. 24. Plaintiffs' claims are barred due to the doctrine of de minimis. 25. Plaintiffs' claims are barred due to the Plaintiffs' failure to mitigate their alleged damages. WHEREFORE, Defendants Peter R. Wilson, Jr. and Sharon J. Wilson respectfully request this Honorable Court to enter judgment in their favor and against Plaintiffs Cornelius J. Keim, III and Linda L. Keim, and to dismiss Plaintiffs' Second Amended Complaint with prejudice, costs, and attorneys' fees. Respectfully submitted, REAGER & ADLER, P.C. Dated: August- , 2008 ) Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants VERIFICATION We, Peter R. Wilson, Jr. and Sharon J. Wilson, hereby verify that the averments of the foregoing document are true and correct to our personal knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: 9/?Y by", Peter R. ilson, Jr. Date: L2- 0 0 g Sharon J. Wilson CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid, as follows: Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Respectfully submitted, REAGERA ADLER, PC Date: 11 vo' 6 12OR By: eter R. Wilson, Esquire .--? {..,, -a? - _ ; ???. _.,?: y ?? { 1 REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter X Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. No. 08-2776 Civil Term PETER R. WILSON, JR. and ACTION IN EJECTMENT SHARON J. WILSON, Defendants, V. BRUCE J. GRAHAM and SHANNON GRAHAM, Additional Defendants. PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANTS TO THE PROTHONOTARY OF SAID COURT: Please issue a writ of to join additional defendants in the above-captioned action. X Writ to Join Additional Defendants shall be issued and forwarded to ( ) Attorney ( X ) Sheriff. Peter R. Wilson, Esquire Reager & Adler, P.C. 2331 Market Street 4ignature of Attorney Camp Hill, PA 17011 Attorney .D No. 87655 (717) 763-1383 Date: 3 p WRIT TO JOIN ADDITIONAL DEFENDANTS TO BRUCE J. GRAHAM AND SHANNON GRAHAM, WITH A LAST KNOWN ADDRESS OF 25 ORCHARD STREET, EXETER, PENNSYLVANIA: YOU ARE NOTIFIED THAT THE ABOVE-NAMED DEFENDANTS, PETER R. WILSON, JR. AND SHARON J. WILSON, HAVE JOINED YOU AS ADDITIONAL DEFENDANTS IN THIS ACTION, WHICH YOU ARE REQUIRED TO DEFEND. Date: (Deputy) Prothono ary p?? PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, ' Defendants, BRUCE J. GRAHAM and SHANNON GRAHAM, Additional Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid as follows: Gary E. French, Esquire 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Dated: 3 1,00Z Z Peter R. Wilson, Esquire ?-a } t.e7 W SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-02776 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KEIM CORNELIUS J II ET AL VS WILSON PETER R JR ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named ADD'L DEFENDANT , to wit: GRAHAM BRUCE J but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LUZERNE County, Pennsylvania, to serve the within WRIT TO ADD'L DEFEN. On September 18th , 2008 , this office was in receipt of the attached return from LUZERNE Sheriff's Costs: So answers* Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Luzerne County 42.00 Sheriff of Cumberland County Postage .93 79.93 i/ 4/-7 4/0 8 ?? 09/18/2008 REAGER & ADLER Sworn and subscribe to before me this day of A. D. i SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-02776 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KEIM CORNELIUS J II ET AL VS WILSON PETER R JR ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named ADD'L DEFENDANT , to wit: 11 TTTT AN ('. T TT AThT/NTT but was unable to locate Her deputized the sheriff of LUZERNE in his bailiwick. He therefore serve the within WRIT TO ADD'L DEFEN. On September 18th , 2008 , this office was in receipt of the attached return from LUZERNE Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 A r) County, Pennsylvania, to 16.00 09/18/2008 REAGER & ADLER So answer - R. Thomas Kline Sheriff of Cumberland County a)a I ) of Ir- Sworn and subscribe to before me this day of A. D. J In The Court of Common Pleas of Cumberland County, Pennsylvania Cornelius J. Keim et al - VS - Peter R. Wilson Jr et al VS. Bruce J. Graham et al SERVE: Bruce J. Graham No. 08-2776 civil Now, September 5, 2008. , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Luzern County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, /lte?da?.r 5? Jn , 20 OPT, at :QSo'clock p M. served the within 1.1J? i nA o- upon at by handing to /I la r; a '7?Tl e 2. copy of the original Wr7 76 11? 1W, ' 4 a.--u S and made known to ?j the contents thereof. So C +54--er Sworn and subscribed before PER" me this KS1 dago =0Y*2 Sheriff of COSTS SERVICE _ MILEAGE _ AFFIDAVIT Z ,0,4-'ounty, PA , In The Court of Common Pleas of Cumberland County, Pennsylvania Cornelius J. Keim et al VS. Bruce J. Graham et al SERVE: Shannon Graham County to execute this Writ, this Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, September 5, 2008 hereby deputize the Sheriff of - VS - Peter R. Wilson Jr et al No. 08-2776 civil I, SHERIFF OF CUMBERLAND COUNTY, PA, do Luz erne deputation being made at the request and risk of the Plaintiff. Now, ber C/ 20 ?V , at o'clock P M. served the . IN _ r 1 within . V__.; upon ? Lt,nvt on (; ^ at 4 by handing to Q,-;,LA aL e copy of the original WCr ?- ?a ih , b?t4 e " -S and made known to the contents thereof. So answers Sheriff of Z prn e County, PA Sworn and subscribed before me this day of , 20C? COMMON FAITH OF PENNSYLVANIA NOTAWAL SEAL t lic, Duryea 6arouflh, u:erne ounty My CommlWlOn Explr?e PelOruary 14, 2012 COSTS SERVICE - MILEAGE _ AFFIDAVIT $ Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 frenchQkeeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM ACTION IN EJECTMENT OBJECTIONS TO REQUEST FOR ENTRY UPON PROPERTY OF A PARTY NOW COME Plaintiffs, CORNELIUS J. KEIM III and LINDA L. KEIM, by their attorneys, Keefer Wood Allen & Rahal, LLP, and object to Defendants' Request for Entry upon Land of a Party, as follows: 1. Plaintiffs instituted this action by filing a Complaint in Ejectment seeking to cause Defendants to remove certain encroachments that extend from Defendants' property onto Plaintiffs' property. A true and correct copy of Plaintiffs' Second Amended Complaint is attached hereto as Exhibit "A." 2. The alleged encroachments consist of a fence and retaining wall surrounding a swimming pool located along the side yards of the parties' properties and a rock garden located near the front of the properties. Additionally, Plaintiffs believe that part of Defendants' underground lawn irrigation system may be on Plaintiffs' property. 3. Defendants have not unconditionally admitted that any of their improvements encroach upon Plaintiffs' property and have not confirmed the accuracy of Plaintiffs' survey of the common boundary. Defendants have only admitted that their improvements cross the line of Plaintiffs' survey, which may or may not be accurate. Based upon their factual averments, Defendants' defense to the ejectment action is that all of their improvements are located on their side of the boundary line so far as they know. Attached hereto as Exhibit "B" is Defendants' Answer to the Second Amended Complaint. Attached hereto as Exhibit "C" is Defendants' Answer to Request for Admissions. 4. Defendants have submitted a discovery request under Pa. R. Civ. P. 4009.32 asking for permission to go onto Plaintiffs' property for the purpose of taking photographs of the encroachments. Attached hereto as Exhibit "D" is Defendants' Request for Entry Upon Property of a Party. Plaintiffs object to Defendants coming onto their property for the purpose stated and file these objections pursuant to Pa. R. Civ. P. 4009.32(b). 6. Because Defendants deny that there are any encroachments and have failed to admit the location of the boundary line, despite repeated requests to do so, there is no relevant evidence that would be obtained by going onto Plaintiffs' property, except for evidence derived from a resurvey of the boundary line, to which Plaintiffs would consent. 7. Moreover, the aesthetic qualities of the alleged encroachments and the degree of encroachments are not relevant in this case. Under evidence currently on the record through 2 discovery, there is no evidence that would suggest any equitable grounds to allow the numerous encroachments to remain in place. See, Ochroch v. Kia Nourv, 345 Pa. Super. 161, 497 A.2d 1354 (1985). On the contrary, all the evidence deduced to date indicates that there are multiple, extensive encroachments, that Plaintiffs were unaware of the encroachments until two to three months before the Complaint was filed, and that at least some of the encroachments constitute illegal structures located within the side yard setback under Hampden Township Codified Ordinance 84-7, Section 1715, a true and correct copy of which is attached hereto as Exhibit "E." 8. Defendants have not alleged any other defenses that would involve the aesthetic appearance of the encroachments or their size and configuration. Dated: January 6, 2009 KEEFER WOOD ALLEN & RAHAL, LLP "Y- French, Esquire Attorney I.D. 25810 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Objections to Request for Entry upon Property of a Party upon Defendants this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Linus E. Fenicle, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 Peter R. Wilson, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP Gary r French Dated: January 6, 2009 4 Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 french i keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants C) ?„ 0 r? z? C - .y r' LO 't) s IN THE COURT OF COMMON PLEA-*OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM ACTION IN EJECTMENT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la Corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la Corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 *fi ench(cJ)keeferwood.corn CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM ACTION IN EJECTMENT SECOND AMENDED COMPLAINT IN EJECTMENT NOW COME Plaintiffs, CORNELIUS J. KEIM III and LINDA L. KEIM, by their attorneys, Keefer Wood Allen & Rahal, LLP, and make this Amended Complaint, averring as follows: 1. Plaintiffs are CORNELIUS J. KEIM III and LINDA L. KEIM, husband and wife, adult individuals residing at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 2. Plaintiffs are title owners of the parcel of land, together with improvements, located at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Plaintiffs' Tract"), being more particularly bounded and described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. 3. Defendants are PETER R. WILSON, JR. and SHARON J. WILSON, husband and wife, adult individuals residing at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 4. Defendants are title owners of the parcel of land, together with improvements, located at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Defendants' Tract"), being more particularly bounded and described as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. An abstract of title to Plaintiffs' Tract is attached hereto as Exhibit "C" and incorporated herein by this reference. 6. Plaintiffs have the immediate and unqualified right of possession over the entirety of Plaintiffs' Tract, having granted neither a leasehold interest nor any other possessory right to any party, including Defendants. 7. Defendants have unlawfully encroached upon Plaintiffs' Tract by allowing a portion of their pool decking and fencing to be located on Plaintiffs' Tract. A foliage buffer located near the encroachments is owned by Plaintiffs. Additionally, Defendants have unlawfully encroached upon a portion of Plaintiffs' Tract by allowing a portion of their rock garden to be located on Plaintiffs' Tract. 9. On information and belief, it is alleged that a portion of Defendants' irrigation piping may unlawfully encroach upon Plaintiffs' Tract. 10. None of the encroachments would be costly to remove in comparison to the loss of title to a portion of Plaintiffs' Tract. -2- 11. Plaintiffs notified Defendants of the unlawful encroachments in writing and requested that the encroachments be removed. 12. Defendants have refused to remove the encroachments. 13. Defendants and their encroachments should be ejected from Plaintiffs' Tract. 14. In accordance with Pa. R. Civ. P. 1055, Plaintiffs specifically reserve the right to pursue a separate claim for damages for continuing trespass, damage to land, punitive damages and any other direct and consequential damages and fees permitted by law. WHEREFORE, Plaintiffs demand judgment for ejectment in their favor and against Defendants for removal of Defendants' unlawful encroachments, together with taxable costs. Dated: June 30, 2008 KEEFER WOOD ALLEN & RAHAL, LLP 6By ary r , Esquire Attorney I.D. 25810 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim -3- 06-17-08 12:18PM FROM-Keefer Wood Allen A Rahal 7172558050 T-170 P-014/015 F-649 VERIFICATION We, Cornelius J. Keim and Linda L. K.eim, hereby certify that the facts in the foregoing Second Amended Complaint are true and correct to the best of our Iwowledge, information and belief, and further state that false statements herein are made subject to the penalties of. 18 pa.C.S. § 4904 relating to unworn falsification to authorities. zziid !! Cornelius J. Keim HI Keim Dated: June .2 , 2008 -4- PLAINTIFFS' TRACT ALL THAT CERTAIN lot or piece of land, with the buildings and improvements thereon erected, situate in Hampden Township, Cumberland County, more particularly bounded and described as follows, to wit: BEGINNING at a point at the northeast coiner of Orr's Bridge Road and Bellows Drive, on the hereinafter mentioned Plan of Lots; thence by the eastern side of Orr's Bridge Road, North 31 degrees 17 minutes West, 180 feet to a point at lands now or late of Grandview Heights, Inc.; thence by said lands North 82 degrees 25 minutes East, 160.98 feet to a point at the dividing line between Lot Nos. 1 and 2, Block "P", of the Plan; thence by said dividing line South 14 degrees 03 minutes 08 seconds East, 12894 feet to a point on the northern side of Bellows Drive; thence by the northern side of Bellows Drive by an arc curving to the left having a radius of 175 feet an arc distance of 5263 feet (erroneously referred to in deed as 56.23 feet); thence continuing along the norther side of Bellows Drive, South 58 degrees 43 minutes West, 57.37 feet to a point on the northeast corner of Orr's Bridge Road and Bellows Drive, the place of BEGINNING. BEING ALL OF LOT NO. 1, Block "P", Plan No. 14, Pinebrook, which Plan is recorded in the Cumberland County Recorder's Office in Plan Book 23, Page 148. EXHIBIT "A" DEFENDANTS' TRACT ALL THAT CERTAIN lot or piece of ground situate in Hampden Township, Cumberland County, Pennsylvania, mo7•e particularly bounded and described as follows, to wit: BEGINNING at a point on the norther side of Bellows Drive, which point is 1 10.00 feet in an eastern direction from the northeast corner of Orr's Bridge Road and Bellows Drive at the dividing line between Lots Nos. 1 and 2, Block "P", of the hereinafter mentioned Plan; thence by said dividing line, North 14 degrees 03 minutes 08 seconds West, 128.94 feet to a point at lands now or formerly of Grand Vue Heights, Inc.; thence by said lands, North 82 degrees 25 minutes East, 104.48 feet to a point at the dividing line between Lots Nos. 2 and 3, Block "P" of the Plan; thence by said dividing line, South 07 degrees 35 minutes East, 127.00 feet to a point on the norther side of Bellows Drive; thence by the northern side of Bellows Drive, South 82 degrees 25 minutes West, 70.24 feet to a point; thence continuing along the northern side of Bellows Drive by an arc curving to the left, having a radius of 175.00 feet, an are distance of 19.76 feet to a point at the dividing line between Lots Nos. 1 and 2, Block "P" of the Plan, the place of BEGINNING. BEING all of Lot No. 2, Block "P", Plan 14, Pinebrook, which Plan is recorded in the Cumberland County Recorder's Office, in Plan Book 23, Page 148. EXHIBIT "B" ABSTRACT OF TITLE - PLAINTIFFS' TRACT Owners 1975-1976 - Glen R. Chamberlin, Robert L. Chamberlin, and Eddie G. Chamberlin, t/d/b/a Chamberlin & Sons, by Deed dated November 20, 1975, and recorded in Deed Book I-26, Page 647. Owners 1976-Present - Conich Lis J. Kelm III, and Linda L. Keim, husband and wife, by Deed dated June 24, 1976, and recorded in Deed Book "Q," Volume 26, Page 679. EXHIBIT "C" CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Second Amended Complaint upon Defendants this date by depositing a true and correct copy of the same in the United States mail via certified mail-return receipt requested, first-class postage prepaid, addressed as follows: Peter R. Wilson, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP a . French Dated: July 7, 2008 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, No. 08-2776 Civil Term V. ACTION IN EJECTMENT PETER R. WILSON, JR. and C, SHARON J. WILSON `--- ` Defendants. r- - i NOTICE TO PLEAD in - CC, • • =i i r7 -0 To: Cornelius J. Keim III and -- Linda L. Keim c/o Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17108-1963 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED DEFENDANTS' ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, Date: Zp0$ RE LER, P.C. Lin & E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter R. Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, . Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT DEFENDANTS' ANSWER WITH NEW MATTER 1. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted. 4. Admitted. 5. Admitted upon information and belief. 6. Denied. The averments of Paragraph 6 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 6. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 7. Denied in part and admitted in part. Defendants admit that the foliage buffer is owned by Plaintiffs. The remaining averments of Paragraph 7 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every remaining factual averment. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 8. Denied. The averments of Paragraph 8 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 8. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 9. Denied. The averments of Paragraph 9 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the C] truth of the averments of Paragraph 9. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 10. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 10. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 11. Admitted in part and denied in part. Defendants admit that they were notified of the alleged encroachments in writing, and that Plaintiffs, by this action, are requesting that said alleged encroachments be removed. However Defendants deny the averments of Paragraph 11 to the extent that they constitute conclusions of law to which no responsive pleading is required. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 12. Admitted in part and denied in part. Defendants admit that they have denied Plaintiffs' request to remove the alleged encroachments. However, Defendants deny the averments of Paragraph 12 to the extent that they constitute conclusions of law to which no responsive pleading is required. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 13. Denied. The averments of Paragraph 13 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 14. Denied. The averments of Paragraph 14 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. By way of further answer, it is denied that Plaintiffs have the right to pursue a separate claim for damages, whether in this action or in some future action. Any claim for damages arising from the alleged encroachment that Plaintiffs believe to be cognizable under Pa. R. Civ. P. 1055 should be joined by Plaintiffs at this time or be forever barred. Byway of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. NEW MATTER 15. Defendants incorporate herein by reference the averments of Paragraphs 1 through 14 above as if set forth fully herein. 16. Plaintiffs' Second Amended Complaint fails to state a cause of action upon which relief may be granted. 17. Plaintiffs' claims are barred due to the doctrine of estoppel. 18. Plaintiffs' claims are barred due the doctrine of laches. 19. Plaintiffs' claims are barred due to the doctrine of waiver. 20. Plaintiffs' claims are barred due to the doctrine of acquiescence. 21. Plaintiffs' claims are barred due to the doctrine of inadvertence. 22. Plaintiffs' claims are barred due to the doctrine of unclean hands. 23. Plaintiffs' claims are barred due to the doctrine of mistake. 24. Plaintiffs' claims are barred due to the doctrine of de minimis. 25. Plaintiffs' claims are barred due to the Plaintiffs' failure to mitigate their alleged damages. WHEREFORE, Defendants Peter R. Wilson, Jr. and Sharon J. Wilson respectfully request this Honorable Court to enter judgment in their favor and against Plaintiffs Cornelius J. Keim, III and Linda L. Keim, and to dismiss Plaintiffs' Second Amended Complaint with prejudice, costs, and attorneys' fees. Respectfully submitted, REAGER & ADLER, P.C. Dated: August-5 , 2008 Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants -10 VERIFICATION We, Peter R. Wilson, Jr. and Sharon J. Wilson, hereby verify that the averments of the foregoing document are true and correct to our personal knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: ly? Peter R. ilson, Jr. Date: g?`5?2dv8 Sharon J. Wilson CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid, as follows: Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Respectfully submitted, REAGER A ADLER, PC Date: 4- 6 /'go? By: /,/Peter R. Wilson, Esquire I REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com ?I cz? -T7 2331 Market Street Camp Hill PA 17011 L Telephone (717) 763-1383 c;, Facsimile: (717) 730-7366 Attorneys for Defendants Peter R. Wilson, Jr. ' and Sharon J. Wilson ] r+? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, No. 08-2776 Civil Term ACTION IN EJECTMENT Defendants. DEFENDANTS' RESPONSE TO PLAINTIFFS' REQUEST FOR ADMISSIONS Pursuant to Pennsylvania Rule of Court 4014, Defendants answer and object to Plaintiffs' Requests for Admissions as follows: 1. GENERAL OBJECTIONS The answers of Defendants are subject to, qualified by, and limited by the following general objections, which apply to each specific request for admission ("RFA") as if incorporated therein and set forth in full in each answer: Defendants object to each RFA to the extent that it or any portion thereof is vague, ambiguous, overly broad, compound, argumentative, unintelligible or premature. 2. Defendants object to each RFA to the extent that it or any portion thereof seeks legal conclusions. Defendants object to each RFA to the extent that it or any portion thereof is oppressive, unduly burdensome, unreasonably expensive, or would require an unreasonable investigation on the part of Defendants. 4. Defendants object to each RFA to the extent that it or any portion thereof is unreasonably cumulative or duplicative. 5. Defendants object to each RFA to the extent that it or any portion thereof seeks discovery of information that is either not relevant to the subject matter of this action, not admissible at trial or not reasonably calculated to lead to the discovery or relevant or admissible evidence. 6. Defendants object to each RFA to the extent that it or any portion thereof seeks discovery of information protected from disclosure by the attorney-client privilege, the attorney work-product doctrine or any other applicable privilege, protection or restriction. 7. Defendants object to each RFA to the extent that it or any portion thereof seeks disclosure of confidential and/or proprietary business information, trade secrets or any other private information. Defendants object to each RFA to the extent that it or any portion thereof seeks disclosure of information that constitutes settlement negotiations. 9. Defendants' efforts to obtain information responsive to the RFA's are ongoing and discovery is continuing. Therefore, Defendants reserve the right to amend, modify, or supplement their objections and answers in light of information of which they may become aware of subsequent to the date of these answers. II. CONDITIONS 1. The following responses are made without waiving or intending to waive, but on the contrary, intending to preserve and preserving: (a) all objections as to confidentiality, relevancy, materiality, privilege and admissibility as evidence for any purpose in subsequent proceedings or the trial of this or any other actions; (b) the right to object to the use of any information which may be provided, or the subject matter thereof, in any subsequent proceedings or the trial of this or any other action on any other grounds; (c) the right to object on any ground at any time to further discovery proceedings involving or relating to the subject matter of the requests for admissions; (d) the right at any time to revise, correct, supplement, clarify or amend this response in accordance with the Pennsylvania Rules of Court. 2. All responses to requests for admissions are based on Defendants' best understanding of the discovery requests and/or the terms used therein. Such responses cannot be properly used as evidence except in the context in which Defendants understood the requests and/or the terms used therein. ANSWERS TO REQUEST FOR ADMISSIONS Admitted. Defendants reserve the right to update their response to this request and other pleadings as discovery continues if during discovery Defendants elect to commission an independent survey of the common boundary and the results of that survey are inconsistent with the survey performed by Plaintiffs' surveyor. 2. Admitted. 3. Admitted that, based on the survey pins and wooden stakes placed by Plaintiffs' surveyor, it would appear that a portion of Defendants' pool decking is across the straight line between those survey pins and wooden stakes. 4. Admitted that, based on the survey pins and wooden stakes placed by Plaintiffs' surveyor, it would appear that a portion of Defendants' rock garden is across the straight line between those survey pins and wooden stakes. 5. Admitted that, based on the survey pins and wooden stakes placed by Plaintiffs' surveyor, it would appear that a portion of Defendants' irrigation system is across the straight line between those survey pins and wooden stakes. 6. Admitted to the extent that a portion of the pool decking consists of mortared landscaping blocks and wooden railings, and denied to the extent that the pool decking also consists of fill, stone, wood beams and posts, and concrete in which said certain wood posts are installed. 7. Defendants cannot admit or deny this requested item at this time, as Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 7. Defendants reserve the right to update their response to this request and other pleadings as discovery continues. Respectfully submitted, REAGE ADLER, P.C. Dated: August Jr' , 2008 inus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants VERIFICATION We, Peter R. Wilson, Jr. and Sharon J. Wilson, hereby verify that the averments of the foregoing document are true and correct to our personal knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: 'V/ q'n Date: 5 /2'D 6 ' l CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid, as follows: Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Respectfully submitted, REAGER & ADLER, PC Date: 6 By: )De r R. Wilson, Esquire I. - I REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfericle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter R. Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants, BRUCE J. GRAHAM and SHANNON GRAHAM, Additional Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT DEFENDANTS' REQUEST FOR ENTRY OF PROPERTY OF A PARTY DIRECTED TO PLAINTIFFS TO: Cornelius J. Keim, III and Linda L. Kelm, Plaintiffs -and- Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorney for Plaintiffs 210 Walnut Street PO Box 11963 Harrisburg, PA 17108-1963 Pursuant to Pa. R. Civ. P. 4009.32, Defendants hereby request permission to enter the property of Plaintiffs, at a date and time to be determined by the parties, but in no event more than thirty (30) days from the service of this Request for Entry of Property of a Party, for the purposes described below: Defendants desire to take photographs of the alleged encroachments, as well as the surrounding property, including, but not limited to, the foliage buffer. 2. Defendants desire to take photographs from various locations on Plaintiffs' property for the purpose of showing the aesthetic effect of the alleged encroachments from various locations on Plaintiffs' property. Defendants desire to conduct and record measurements of the alleged encroachments, as well as the surrounding property, including, but not limited to, the foliage buffer. Respectfully submitted, REAGE ADLER, P.C. Dated: December ? S , 2008 anus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid as follows: Gary E. French, Esquire 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Dated: 7eG, ?yg xz? Peter R. Wilson, Esquire chapter_27_part17 [Hampden Township Codified Ordinances] Page 6 of 24 an occupant of a residential premises may be parked only on a driveway or pad constructed of impervious material the dimension of which at least encompasses the entire length and width of the recreational vehicle stored thereon: A. In the side or rear yards of the residential premises provided that it is no closer than 7 feet from any other property line. B. In the front yard of the residential premises provided it is at least 10 feet from the house side of a street curb or the edge of paving of the street where no curb exists and no closer than 7 feet from any other property line. Notwithstanding the foregoing provisions, such vehicles may be parked on a residential premises for a period of time not exceeding 72 hours for the purposes of loading, unloading or performing routine maintenance. 4. For the purposes of determining length of recreational vehicles, measurement shall be taken between the most distant parts of the front and rear of the vehicle (e.g. "bumper to bumper"; "bumper to end of tongue"). The foregoing regulations shall not apply to the storage of a recreational vehicle at the same pad or location where storage commenced more than 3 months prior to the effective date hereof. 5. All yards shall be maintained and kept free of all debris and rubbish. (Ord. 84-2, 3/29/1984, §1612; as amended by Ord. 95-10, 11/02/1995, §1; Ord. 99-05, 07/01/1999, §1; and by Ord. 00-04, 03/02/2000, §1); §1714. SPECIAL PROVISIONS FOR STREET AND HIGHWAY WIDENING. Whenever there shall be official plans in existence and/or published for the widening of any street or highway within the Township, the Planning Commission may require additional front yard setbacks for any new construction or for any structures altered or remodeled in order to preserve and protect rights-of- way for such proposed street or highway widening. (Ord. 84-2, 3/29/1984, §1613) §1715. SWIMMING POOLS, PRIVATE. Private swimming pools shall be a permitted accessory use in any district and shall comply with the following conditions and requirements: A. The pool is to be used solely for the enjoyment of the occupants of the principal use of the property on which it is located. B. The pool, related structures and equipment shall not be located within any required yard area with the exception of a rear yard in which case it shall be located not less than 10 feet from the rear lot line. [Ord. 84-7] C. Barriers. (1) Every outdoor swimming pool of permanent construction, whether above or below ground, shall be completely surrounded by a barrier not less than 4 feet in height which shall be so constructed as not to have openings, holes or gaps larger than 4 inches in any dimension and, if a picket fence is erected or maintained, the horizontal or vertical dimension of space between pickets shall not exceed 4 inches. The maximum vertical clearance between grade and the bottom of the barrier shall be 2 inches (51 mm) measured on the side of the barrier which faces away from the __a .? t ,...a3 4 -.? Gary E. French, Esquire Attorney I.D. No. 25810 Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 gfrench(o_)keeferwood. com CORNELIUS J. KEIM III and LINDA L. KEIM, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 08-2776 CIVIL TERM PETER R. WILSON, JR. and SHARON J. WILSON Defendants ACTION IN EJECTMENT BRUCE J. GRAHAM and SHANNON GRAHAM, Additional Defendants PRAECIPE TO LIST CASE FOR NON-JURY TRIAL TO: Cumberland County Prothonotary Pursuant to Cumberland County Civil Rule 215-1, kindly list the above-referred matter for non jury trial. Dated: March 31, 2009 KEEFER WOOD ALLE AL, LLP Y Gary . French, Esquire Attorney I.D. 25810 210 Walnut Street, P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Praecipe upon Defendants this date by depositing a true and correct copy of the same in the United States mail via first-class postage prepaid, addressed as follows: Linus E. Fenicle, Esquire Peter R. Wilson, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP By: ary E.'_ French Dated: March 31, 2009 CA F=iLECi--4;t?r ?` AARY ?QL??Si f -7 PIS -*a5. oco po A,rr/ 6t*S'79 7 er* aa338q CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS V. BRUCE J. GRAHAM AND SHANNON GRAHAM, ADDITIONAL DEFENDANTS ORDER OF COURT AND NOW, this day of April, 2009, this case having been assigned to this judge for a non jury trial, and counsel having requested a pre-trial conference, IT IS ORDERED that a pre-trial conference shall be conducted at 11:00 a.m., April 27, 2009, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. 08-2776 CIVIL TERM By t Court, . Bayley, J. ?a E. French, Esquire For Plaintiffs Xinus E. Fenicle, Esquire Peter R. Wilson, Esquire For Defendants vgruce J. Graham and ZgAhannon Graham 25 Orchard Street Exeter, PA 18643 Lug, t ? 7 Q _ 1 N 11 . 16 CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS V. BRUCE J. GRAHAM AND SHANNON GRAHAM, ADDITIONAL DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-2776 CIVIL TERM PRE-TRIAL CONFERENCE MEMORANDUM A pre-trial conference was held on the within case on Monday, April 27, 2009. Plaintiffs and defendants have obtained surveys for which the perimeters of the alleged encroachment are the same. They will stipulate as to the square footage of that encroachment which will alleviate the necessity of calling a surveyor at trial. Upon the stipulation of the parties, additional defendants Bruce J. Graham and Sharon Graham are removed from this ejectment action. The parties will forthwith arrange to take the deposition of Bruce J. Graham and Sharon Graham and they may be called as witnesses at trial. The trial will be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania, at 8:45 a.m., WednesdayAJune 17, 2009. By thft-Court, Edgar B. Bayley; J. 1. 1 'r ^1( ? y W i..._ 27 '..? , vI? ry E. French, Esquire or Plaintiffs Linus E. Fenicle, Esquire i eter R. Wilson, Esquire V For Defendants omas J. MacNeely, Esquire For 0 Additional Defendants Court Administrator `t :sal CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 08-2776 CIVIL TERM IN RE: EJECTMENT INTERIM ORDER OF COURT AND NOW, this day of July, 2009, IT IS ORDERED: (1) The complaint of plaintiffs seeking an injunction requiring the removal of an encroachment of varying width along 38.34 feet of their side line with defendants' property, IS DENIED. (2) Unless stipulated to, counsel shall request another hearing to set any amount of damages to which plaintiffs may be entitled because of the encroachment. Thereafter a final order will be entered. (3) Defendants shall remove that part of the area of flowers and bushes framed in part by some stones at the edge of a sidewalk to the extent that it c ?Ga E. French, Esquire For Plaintiffs ? Peter R. Wilson, Esquire For Defendants :sal eo i Edgar B. Bayley, plaintiffs' side line. ALED-t-lr!- ICl- OF THE rV 'r .,! 0 A.RY 2009 JUL --2 AP 9: 4 6 CORNELIUS J. KEIM, III IN THE COURT OF COMMON PLEAS OF AND LINDA L. KEIM, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS 08-2776 CIVIL TERM IN RE: EJECTMENT OPINION AND INTERIM ORDER OF COURT Bayley, J., July 2, 2009:-- On April 29, 2008, plaintiffs, Cornelius J. Keim, III and Linda L. Keim, filed a complaint in ejectment against defendants, Peter R. Wilson, Jr. and Sharon J. Wilson. Plaintiffs seek an injunction ordering defendants to remove an encroachment that is on their property. Plaintiffs filed an amended complaint on June 4, 2008. A bench trial was conducted on June 17, 2009. In June, 1976, the Keims bought a residence in the Pine Brook Development at 3813 Bellows Drive, Hampden Township, Cumberland County. On January 19, 2007, the Wilsons bought the residence next door at 3811 Bellows Drive. The sellers were Bruce Graham and Shannon Graham who had bought the property from Leslie and Carol Petrie in 2005. The Petries had constructed a swimming pool and deck in their rear yard. In 1998 or 1999, the Petries told the Keims that they were extending their pool deck toward their property and asked if their workers could enter their property to make it easier to build the new deck with a retaining wall. They offered to plant arborvitae trees next to the retaining wall that would shield the wall, deck and swimming pool from view, to which the Keims agreed. The extended deck, on which there is an 08-2776 CIVIL TERM approximate six foot fence, anchored by the retaining wall, was constructed and the arborvitae were planted. In late June, 2006, the Grahams who then owned 3811 Bellows Drive, asked the Keims if they could trim the arborvitae which were extending over the fence on their pool deck. The Keims granted permission to trim the top of the trees. The Grahams not only trimmed the top but also the sides of the arborvitae. When the Keims saw that the sides were trimmed they were concerned as they thought the arborvitae had been planted on their property by the Petries. On January 19, 2007, shortly after the Wilsons settled on their purchase of 3811 Bellows Drive, Peter Wilson met Linda Keim. She told him how the Grahams had cut the arborvitae and that she and her husband were going to have a survey of their property. That same day the Keims hired Hartman and Associates, Inc., to do a survey. The fieldwork was completed on January 24, 2007, and the Keims were told by the surveyor that the arborvitae were on their property but the pool deck and retaining wall encroached onto their property. The printed survey outlining the encroachment was completed on March 13, 2007. The Keims informed the Wilsons of the encroachment in early 2008. The Wilsons then had their property surveyed by Akens Engineering Associate, Inc. The parties stipulated that this survey, which contains a separate depiction of the metes and bounds of the encroachment, is accurate. The line separating the side yards of plaintiffs and defendants runs 128.94 feet. The encroachment starts along that line at a point 56.43 feet from Bellows Drive. It runs 38.34 feet to where the retaining wall and the pool deck with the fence on top meets the Keims side line at a point 34.16 feet from -2- 08-2776 CIVIL TERM the rear of the two properties which abut a golf course. At its widest point, near the north end, the encroachment is 24.35 inches. It tapers toward the south where at the end it is 6.5 inches wide. The encroachment is along thirty percent of plaintiffs' side line and is 58.70 square feet. The Keims entire property is 19,864.91 square feet. The encroachment is hidden from their view by the arborvitae trees that are at the top of an embankment of the Keims' property near their side line. Plaintiffs, citing Pile v. Pedrick, 167 Pa. 296 (1895), maintain that they are entitled to an injunction requiring the Wilsons to remove the encroachment. Defendants maintain that an injunction should be denied because plaintiffs are guilty of laches. In Bonds v. Bonds, 689 A.2d 275 (Pa. Super 1997), the Superior Court of Pennsylvania stated: Laches arises when a party's rights have been so prejudiced by the delay of another in pursuing a claim that it would be an injustice to permit the assertion of the claim against the party so prejudiced. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). "The application of the equitable doctrine of laches does not depend upon the fact that a certain definite period of time has elapsed, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to act at another's prejudice." In re Jones, 442 Pa.Super. 463, 660 A.2d 76, 82 (1995) (citation omitted). Laches cannot be based on a change of position taking place before the complainant could have and reasonably should have brought suit. Leedom v. Thomas, 473 Pa. 193 (1977). In Barndollar v. Groszkiewicz, 178 Pa. Super 110 (1955), the plaintiffs brought a complaint in equity seeking a mandatory injunction for the removal of a wall built by the defendant which encroached slightly more than two feet onto their property. A -3- 08-2776 CIVIL TERM judge refused to issue the injunction but awarded compensatory damages. On appeal the Superior Court of Pennsylvania affirmed. The Court set forth the facts: In 1946 the plaintiffs purchased a lot on Barkerstown Road, Tarentum, on which a garage was situated, across the street from their residence. Defendant owns a house and lot immediately adjacent to this garage property situated at a higher elevation than plaintiffs' lot. The chancellor found that plaintiffs, who have lived at their present address since 1939, were familiar with the condition of the premises in question when they purchased them. A faulty drainage condition which, according to the plaintiffs' predecessor in title, Anna Bayer, had existed since the garage was built, due to the topography of the land, brought a seepage of water into the garage. The plaintiffs, in an attempt to correct it, removed a then-existing wall between the parties' properties and in digging discovered a pipe coming from the direction of defendant's home. Plaintiffs notified defendant to remove the pipe and she complied. Plaintiffs constructed a new wall along the rear of the garage but the flooding continued. They then complained to defendant. In August 1952 defendant's son and brother erected the wall which is the subject of this proceeding. Admittedly the new wall, built entirely at defendant's expense, has remedied the drainage difficulty but the wife-plaintiff testified, "... I don't want that wall on my property. I want that wall off there." According to one witness for the plaintiffs, the wall was constructed in approximately eight or nine hours of one day. However, the husband- plaintiff testified that it took "probably three or four days" and that he not only knew about the erection of the wall but watched the progress of the work. The following excerpt from his testimony is also pertinent: "Q. Did you ever at any time go over and tell them to stop putting it up? A. They knew it didn't belong to them-Q. Answer my question, please (Question read.) A. No, I didn't." The wall was completed in August or September 1952. This action was started on September 30, 1953. The wall was completed in August or September 1952. The action against defendant was started on September 30, 1953. The Superior Court concluded: [w]e agree with the learned chancellor that under the foregoing circumstances plaintiffs are now barred by laches from asserting successfully that which, had prompt objection been made, would have been their right to a mandatory injunction, and that their sole remedy is damages. Cf. Soifer v. Stein, 101 Pa. Superior Ct. 135. -4- 08-2776 CIVIL TERM In the case sub judice, plaintiffs ordered a survey of their property because the Grahams trimmed the sides of the arborvitae trees without their permission. That made plaintiffs think that the arborvitae might not be on their property. At that point plaintiffs had no reason to believe that the retaining wall and pool deck, which were hidden from view by the arborvitae, might encroach onto their property. They first learned of that encroachment when told by their surveyor on January 24, 2007. The printed survey completed on March 13, 2007 set forth the minor extent of the encroachment. Plaintiffs did not institute this suit until April 29, 2008.' The facts in Barndollar are not on point because in that case the plaintiffs knew of the encroachment as soon as it was constructed yet substantially delayed seeking an injunction to require its removal. In the present case, plaintiffs had no reason to believe that the pool deck and retaining wall encroached on their property until after the Wilsons purchased 3811 Bellows Drive. Although plaintiffs waited a little over a year after learning of the encroachment, to institute this suit, laches does not apply because there was no want of due diligence on their part in failing to act to the Wilsons' prejudice. Defendants further maintain that an injunction to require the removal of the encroachment should be denied because the encroachment is de minimis. In Moyerman v. Glanzberg, 391 Pa. 387 (1958), the appellee applied to a building inspector for a permit to erect a dwelling on his lot and in his application incorrectly ' Plaintiffs maintain that they did not file suit earlier because for a period of time they were preoccupied with making repairs as a result of water damage on their property. (This damage was not caused by the encroachment). This is of no legal import on the issue of whether laches applies. -5- 08-2776 CIVIL TERM stated the length of the lot frontage. The permit was granted and the dwelling was constructed. Had the lot dimensions actually been as represented on appellee's application, the dwelling as located could not have been the subject of objection. However, the lot had less frontage than set forth on the application. As a result the completed dwelling that was located in accordance with the incorrect dimensions was built so close to the boundary line with appellants' property that it encroached on their driveway to a depth of from 14 to 16 inches. Appellants had granted to the appellees an easement over the 25 foot driveway but title to the driveway was retained by appellants. The appellee became aware of the situation only after the dwelling had been substantially completed. Appellants filed a complaint in equity seeking an injunction against the appellee's continued encroachment on the driveway. The chancellor found: (1) that the appellee's encroachment upon the easement, although indisputably a continuing trespass, was neither wilful nor intentional but was, rather, the result of a mistake on the appellee's part regarding the quantum of land he had purchased; (2) that the appellee's mistake was attributable to his innocent belief that he was the owner of the driveway and that he had granted the appellants the easement thereover whereas exactly the converse was true; (3) that the appellants were not guilty of laches in failing to initiate their action before the construction had been substantially completed because the encroachment was too slight to be readily discernible and because building materials and other debris in the area tended to obscure it; (4) that the appellants did, however, know that the appellee was violating the zoning ordinance but took no action until the dwelling had been practically completed; (5) that the encroachment did not materially interfere with the use of the easement. The chancellor concluded that "the granting of an injunction in this case would be inequitable, doing more harm than the wrong sought to be redressed." An injunction -6- 08-2776 CIVIL TERM was denied and a hearing ordered to assess damages resulting from the permanent trespass on appellants' land. The order was affirmed by the Supreme Court of Pennsylvania which noted that "An injunction is not of right and the chancellor is not bound to make a decree which will do far more mischief and work greater injury than the loss he has asked to redress." The Court stated that it was in agreement with the lower court "that the granting of the injunction in this case which would compel appellee to tear down a portion of a completely constructed dwelling would be creative of more harm to the appellee than the benefit to appellants." The Court further noted that despite this doctrine the lower court would have had no choice but to grant the injunction if it had found that the appellee had deliberately and willfully built upon the appellants' property or if it believed that he had intentionally taken a chance, thus acting in bad faith. The Court concluded that the chancellor's finding that the encroachment was a result of an unintentional mistake rather than a willful and intentional trespass was supported by the evidence. In the case sub judice, the limited extent of the encroachment over plaintiffs side line, as we have described in detail, shows that the setting of the retaining wall, with the building of the deck and fence on top, for which the Petries asked for and obtained from plaintiffs' access to their property for ease of construction, was a mistake by the Petries' workers as they shored up the pool deck. The trespass was neither willful nor intentional and no one knew about it for at least ten years. The encroachment is trivial in effect and de minimis. It is too slight to be readily discernible. It is hidden by the arborvitae trees that were planted on plaintiffs' land by the Petries and which now have grown tall and thick and benefit plaintiffs by shielding from -7- 08-2776 CIVIL TERM view the retaining wall, deck, fence and swimming pool. Prior to the expansion the deck and swimming pool were visible from plaintiffs' property. The encroachment does not harm plaintiffs aesthetically or otherwise and does not materially interfere with their use and enjoyment of their property. To remove the encroachment the Wilsons will have to take down the fence, tear apart a significant part of the pool deck, remove the retaining wall, and then rebuild the deck with adequate surface support. That would create a significant hardship on the Wilsons. Granting an injunction to require the removal of the encroachment would be inequitable because it would create more harm than the wrong sought to be redressed. Moyerman provides support for denying an injunction to require the removal of the encroachment! The permanent trespass can best be remedied by monetary damages. See Moyerman. There is a pretty area at the edge of the sidewalk in the front of defendants' property containing some flowers and bushes framed in part by some stones. The boundary marker that was placed during the surveys shows that this area is slightly over plaintiffs' side line. Plaintiffs want the part that is over their side line removed. There is no evidence in the record Plaintiffs maintain that their request for an injunction is enhanced because the pool deck violates the ten foot side line set back required by the Hampden Township Zoning Ordinance. Defendants argue that there is no side line set back under the Hampden Township Zoning Ordinance that applies to the location of the pool deck. We do not have to decide who is correct. The Supreme Court in Moyerman disregarded evidence that the encroaching dwelling in that case failed to comply with a side yard set back requirement established by a township zoning ordinance. The court declined to place a thumb on the scale in plaintiffs' favor relating to the set back violation because plaintiffs had failed to timely object to the location of the dwelling, observing that "the juxtaposition of the location of the dwelling to the lot boundary would have rendered obvious a violation of the side yard requirement of the zoning ordinance." -8- 08-2776 CIVIL TERM as to which previous owners of 3811 Bellows Drive put in this area or when it was put in. Removing any part of this area that is over plaintiffs' side line will be easy for the Wilsons to accomplish with no significant cost. The equities in this situation warrant an order granting plaintiffs' relief. INTERIM ORDER OF COURT AND NOW, this day of July, 2009, IT IS ORDERED: (1) The complaint of plaintiffs seeking an injunction requiring the removal of an encroachment of varying width along 38.34 feet of their side line with defendants' property, IS DENIED. (2) Unless stipulated to, counsel shall request another hearing to set any amount of damages to which plaintiffs may be entitled because of the encroachment. Thereafter a final order will be entered. (3) Defendants shall remove that part of the area of flowers and bushes framed in part by some stones at the edge of a sidewalk to the extent that it extends over plaintiffs' side line. By the ort, ) Edgar B. Bayley, J. Gary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants sal -9- CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-2776 CIVIL TERM ORDER OF COURT And now, this 13th day of July, 2009, the interim order entered on July 2, 2009, and the opinion in support of that interim order are both vacated and replaced with the order and opinion in support of the order filed this date. Gary E. French, Esquire /For Plaintiffs Peter R. Wilson, Esquire For Defendants :sal tz/l Edgar B. Bayley, Ui 13 F L r,, rd l CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-2776 CIVIL TERM IN RE: EJECTMENT ORDER OF COURT AND NOW, this day of July, 2009, IT IS ORDERED: (1) The complaint of plaintiffs seeking an injunction requiring the removal of an encroachment of varying width along 38.34 feet of their side line with defendants' property, IS DENIED. (2) Defendants shall remove that part of the area of flowers and bushes framed in part by some stones at the edge of a sidewalk to the extent that it extends?ovqpolaintiffs' side line. By ZGary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants sal (2o g ;2-S 7/13 fog J rrt?;[ 1, LCCL Edgar B. Bayley, Q. CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-2776 CIVIL TERM IN RE: EJECTMENT OPINION AND ORDER OF COURT Bayley, J., July 13, 2009:-- On April 29, 2008, plaintiffs, Cornelius J. Keim, III and Linda L. Keim, filed a complaint in ejectment against defendants, Peter R. Wilson, Jr. and Sharon J. Wilson. Plaintiffs seek an injunction ordering defendants to remove an encroachment that is on their property. Plaintiffs filed an amended complaint on June 4, 2008. A bench trial was conducted on June 17, 2009. In June, 1976, the Keims bought a residence in the Pine Brook Development at 3813 Bellows Drive, Hampden Township, Cumberland County. On January 19, 2007, the Wilsons bought the residence next door at 3811 Bellows Drive. The sellers were Bruce Graham and Shannon Graham who had bought the property from Leslie and Carol Petrie in 2005. The Petries had constructed a swimming pool and deck in their rear yard. In 1998 or 1999, the Petries told the Keims that they were extending their pool deck toward their property and asked if their workers could enter their property to make it easier to build the new deck with a retaining wall. They offered to plant arborvitae trees next to the retaining wall that would shield the wall, deck and swimming pool from view, to which the Keims agreed. The extended deck, on which there is an 08-2776 CIVIL TERM approximate six foot fence, anchored by the retaining wall, was constructed and the arborvitae were planted. In late June, 2006, the Grahams who then owned 3811 Bellows Drive, asked the Keims if they could trim the arborvitae which were extending over the fence on their pool deck. The Keims granted permission to trim the top of the trees. The Grahams not only trimmed the top but also the sides of the arborvitae. When the Keims saw that the sides were trimmed they were concerned as they thought the arborvitae had been planted on their property by the Petries. On January 19, 2007, shortly after the Wilsons settled on their purchase of 3811 Bellows Drive, Peter Wilson met Linda Keim. She told him how the Grahams had cut the arborvitae and that she and her husband were going to have a survey of their property. That same day the Keims hired Hartman and Associates, Inc., to do a survey. The fieldwork was completed on January 24, 2007, and the Keims were told by the surveyor that the arborvitae were on their property but the pool deck and retaining wall encroached onto their property. The printed survey outlining the encroachment was completed on March 13, 2007. The Keims informed the Wilsons of the encroachment in early 2008. The Wilsons then had their property surveyed by Akens Engineering Associate, Inc. The parties stipulated that this survey, which contains a separate depiction of the metes and bounds of the encroachment, is accurate. The line separating the side yards of plaintiffs and defendants runs 128.94 feet. The encroachment starts along that line at a point 56.43 feet from Bellows Drive. It runs 38.34 feet to where the retaining wall and the pool deck with the fence on top meets the Keims side line at a point 34.16 feet from -2- 08-2776 CIVIL TERM the rear of the two properties which abut a golf course. At its widest point, near the north end, the encroachment is 24.35 inches. It tapers toward the south where at the end it is 6.5 inches wide. The encroachment is along thirty percent of plaintiffs' side line and is 58.70 square feet. The Keims entire property is 19,864.91 square feet. The encroachment is hidden from their view by the arborvitae trees that are at the top of an embankment of the Keims' property near their side line. Plaintiffs, citing Pile v. Pedrick, 167 Pa. 296 (1895), maintain that they are entitled to an injunction requiring the Wilsons to remove the encroachment. Defendants maintain that an injunction should be denied because plaintiffs are guilty of laches. In Bonds v. Bonds, 689 A.2d 275 (Pa. Super 1997), the Superior Court of Pennsylvania stated: Laches arises when a party's rights have been so prejudiced by the delay of another in pursuing a claim that it would be an injustice to permit the assertion of the claim against the party so prejudiced. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). "The application of the equitable doctrine of laches does not depend upon the fact that a certain definite period of time has elapsed, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to act at another's prejudice." In re Jones, 442 Pa.Super. 463, 660 A.2d 76, 82 (1995) (citation omitted). Laches cannot be based on a change of position taking place before the complainant could have and reasonably should have brought suit. Leedom v. Thomas, 473 Pa. 193 (1977). In Barndollar v. Groszkiewicz, 178 Pa. Super 110 (1955), the plaintiffs brought a complaint in equity seeking a mandatory injunction for the removal of a wall built by the defendant which encroached slightly more than two feet onto their property. A -3- 08-2776 CIVIL TERM judge refused to issue the injunction but awarded compensatory damages. On appeal the Superior Court of Pennsylvania affirmed. The Court set forth the facts: In 1946 the plaintiffs purchased a lot on Barkerstown Road, Tarentum, on which a garage was situated, across the street from their residence. Defendant owns a house and lot immediately adjacent to this garage property situated at a higher elevation than plaintiffs' lot. The chancellor found that plaintiffs, who have lived at their present address since 1939, were familiar with the condition of the premises in question when they purchased them. A faulty drainage condition which, according to the plaintiffs' predecessor in title, Anna Bayer, had existed since the garage was built, due to the topography of the land, brought a seepage of water into the garage. The plaintiffs, in an attempt to correct it, removed a then-existing wall between the parties' properties and in digging discovered a pipe coming from the direction of defendant's home. Plaintiffs notified defendant to remove the pipe and she complied. Plaintiffs constructed a new wall along the rear of the garage but the flooding continued. They then complained to defendant. In August 1952 defendant's son and brother erected the wall which is the subject of this proceeding. Admittedly the new wall, built entirely at defendant's expense, has remedied the drainage difficulty but the wife-plaintiff testified, "... I don't want that wall on my property. I want that wall off there." According to one witness for the plaintiffs, the wall was constructed in approximately eight or nine hours of one day. However, the husband- plaintiff testified that it took "probably three or four days" and that he not only knew about the erection of the wall but watched the progress of the work. The following excerpt from his testimony is also pertinent: "Q. Did you ever at any time go over and tell them to stop putting it up? A. They knew it didn't belong to them-Q. Answer my question, please (Question read.) A. No, I didn't." The wall was completed in August or September 1952. This action was started on September 30, 1953. The wall was completed in August or September 1952. The action against defendant was started on September 30, 1953. The Superior Court concluded: [w]e agree with the learned chancellor that under the foregoing circumstances plaintiffs are now barred by laches from asserting successfully that which, had prompt objection been made, would have been their right to a mandatory injunction, and that their sole remedy is damages. Cf. Soifer v. Stein, 101 Pa. Superior Ct. 135. -4- 08-2776 CIVIL TERM In the case sub judice, plaintiffs ordered a survey of their property because the Grahams trimmed the sides of the arborvitae trees without their permission. That made plaintiffs think that the arborvitae might not be on their property. At that point plaintiffs had no reason to believe that the retaining wall and pool deck, which were hidden from view by the arborvitae, might encroach onto their property. They first learned of that encroachment when told by their surveyor on January 24, 2007. The printed survey completed on March 13, 2007 set forth the minor extent of the encroachment. Plaintiffs did not institute this suit until April 29, 2008.' The facts in Barndollar are not on point because in that case the plaintiffs knew of the encroachment as soon as it was constructed yet substantially delayed seeking an injunction to require its removal. In the present case, plaintiffs had no reason to believe that the pool deck and retaining wall encroached on their property until after the Wilsons purchased 3811 Bellows Drive. Although plaintiffs waited a little over a year after learning of the encroachment, to institute this suit, laches does not apply because there was no want of due diligence on their part in failing to act to the Wilsons' prejudice. Defendants further maintain that an injunction to require the removal of the encroachment should be denied because the encroachment is de minimis. In Moyerman v. Glanzberg, 391 Pa. 387 (1958), the appellee applied to a building inspector for a permit to erect a dwelling on his lot and in his application incorrectly ' Plaintiffs maintain that they did not file suit earlier because for a period of time they were preoccupied with making repairs as a result of water damage on their property. (This damage was not caused by the encroachment). This is of no legal import on the issue of whether laches applies. -5- 08-2776 CIVIL TERM stated the length of the lot frontage. The permit was granted and the dwelling was constructed. Had the lot dimensions actually been as represented on appellee's application, the dwelling as located could not have been the subject of objection. However, the lot had less frontage than set forth on the application. As a result the completed dwelling that was located in accordance with the incorrect dimensions was built so close to the boundary line with appellants' property that it encroached on their driveway to a depth of from 14 to 16 inches. Appellants had granted to the appellees an easement over the 25 foot driveway but title to the driveway was retained by appellants. The appellee became aware of the situation only after the dwelling had been substantially completed. Appellants filed a complaint in equity seeking an injunction against the appellee's continued encroachment on the driveway. The chancellor found: (1) that the appellee's encroachment upon the easement, although indisputably a continuing trespass, was neither wilful nor intentional but was, rather, the result of a mistake on the appellee's part regarding the quantum of land he had purchased; (2) that the appellee's mistake was attributable to his innocent belief that he was the owner of the driveway and that he had granted the appellants the easement thereover whereas exactly the converse was true; (3) that the appellants were not guilty of laches in failing to initiate their action before the construction had been substantially completed because the encroachment was too slight to be readily discernible and because building materials and other debris in the area tended to obscure it; (4) that the appellants did, however, know that the appellee was violating the zoning ordinance but took no action until the dwelling had been practically completed; (5) that the encroachment did not materially interfere with the use of the easement. The chancellor concluded that "the granting of an injunction in this case would be inequitable, doing more harm than the wrong sought to be redressed." An injunction -6- 08-2776 CIVIL TERM was denied and a hearing ordered to assess damages resulting from the permanent trespass on appellants' land. The order was affirmed by the Supreme Court of Pennsylvania which noted that "An injunction is not of right and the chancellor is not bound to make a decree which will do far more mischief and work greater injury than the loss he has asked to redress." The Court stated that it was in agreement with the lower court "that the granting of the injunction in this case which would compel appellee to tear down a portion of a completely constructed dwelling would be creative of more harm to the appellee than the benefit to appellants." The Court further noted that despite this doctrine the lower court would have had no choice but to grant the injunction if it had found that the appellee had deliberately and willfully built upon the appellants' property or if it believed that he had intentionally taken a chance, thus acting in bad faith. The Court concluded that the chancellor's finding that the encroachment was a result of an unintentional mistake rather than a willful and intentional trespass was supported by the evidence. In the case sub judice, the limited extent of the encroachment over plaintiffs side line, as we have described in detail, shows that the setting of the retaining wall, with the building of the deck and fence on top, for which the Petries asked for and obtained from plaintiffs' access to their property for ease of construction, was a mistake by the Petries' workers as they shored up the pool deck. The trespass was neither willful nor intentional and no one knew about it for at least ten years. The encroachment is trivial in effect and de minimis. It is too slight to be readily discernible. It is hidden by the arborvitae trees that were planted on plaintiffs' land by the Petries and which now have grown tall and thick and benefit plaintiffs by shielding from -7- 08-2776 CIVIL TERM view the retaining wall, deck, fence and swimming pool. Prior to the expansion the deck and swimming pool were visible from plaintiffs' property. The encroachment does not harm plaintiffs aesthetically or otherwise and does not materially interfere with their use and enjoyment of their property. To remove the encroachment the Wilsons will have to take down the fence, tear apart a significant part of the pool deck, remove the retaining wall, and then rebuild the deck with adequate surface support. That would create a significant hardship on the Wilsons. Granting an injunction to require the removal of the encroachment would be inequitable because it would create more harm than the wrong sought to be redressed. Moyerman provides support for denying an injunction to require the removal of the encroachment.2 The permanent trespass can best be remedied by monetary damages. See Moyerman.3 There is a pretty area at the edge of the sidewalk in the front of defendants' property containing some flowers and bushes framed in part by some stones. The boundary marker Plaintiffs maintain that their request for an injunction is enhanced because the pool deck violates the ten foot side line set back required by the Hampden Township Zoning Ordinance. Defendants argue that there is no side line set back under the Hampden Township Zoning Ordinance that applies to the location of the pool deck. We do not have to decide who is correct. The Supreme Court in Moyerman disregarded evidence that the encroaching dwelling in that case failed to comply with a side yard set back requirement established by a township zoning ordinance. The court declined to place a thumb on the scale in plaintiffs' favor relating to the set back violation because plaintiffs had failed to timely object to the location of the dwelling, observing that "the juxtaposition of the location of the dwelling to the lot boundary would have rendered obvious a violation of the side yard requirement of the zoning ordinance." 3 The Keims instituted a separate suit against the Wilsons for damages caused by the encroachment. The Grahams have been joined as additional defendants. No. 08-6647 Civil. -8- 08-2776 CIVIL TERM that was placed during the surveys shows that this area is slightly over plaintiffs' side line. Plaintiffs want the part that is over their side line removed. There is no evidence in the record as to which previous owners of 3811 Bellows Drive put in this area or when it was put in. Removing any part of this area that is over plaintiffs' side line will be easy for the Wilsons to accomplish with no significant cost. The equities in this situation warrant an order granting plaintiffs' relief. ORDER OF COURT AND NOW, this Ir day of July, 2009, IT IS ORDERED: (1) The complaint of plaintiffs seeking an injunction requiring the removal of an encroachment of varying width along 38.34 feet of their side line with defendants' property, IS DENIED. (2) Defendants shall remove that part of the area of flowers and bushes framed in part by some stones at the edge of a sidewalk to the extent that it extends over plaintiffs' side line. BJtheou Edgar B. Bayley, J. Gary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants sal -9- . r _ FLP-D of 7"ir -.1 !!?'?n! Gary E. French, Esquire Attorney I.D. No. 25810 Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 frg each@keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM ACTION IN EJECTMENT PLAINTIFFS' MOTION FOR POST-TRIAL RELIEF UNDER PA. R. C. P. 227.1(c)(2) AND REOUEST FOR EN BANC REVIEW NOW COME Plaintiffs, CORNELIUS J. KEIM III and LINDA L. KEIM, his wife, by their attorneys, Keefer Wood Allen & Rahal, LLP, and file the following Motion for Post-Trial Relief under Pa. R. Civ. P. 227.1: 1. On July 13, 2009, this Honorable Court filed an Opinion and Order in this matter. A true and correct copy of said Opinion and Order are attached hereto and incorporated herein by this reference. 2. The Court's Opinion and Order are based upon findings of fact that are not supported by evidence in the record. 3. On page 7 of the Opinion and Order, the Court stated... "the limited extent of the encroachment over plaintiffs side line ...shows that the setting of the retaining wall ...was a mistake by the Petries' workers as they shored up the pool deck. The trespass was neither wilful nor intentional and no one knew about it for ten years." 4. It is not a logical inference to conclude that an admitted encroachment was innocently constructed from mere evidence of its appearance. 5. Defendants did not call the Petries to testify as to their intent when the improvements were constructed, and Plaintiffs had no opportunity to cross-examine the Petries as to their intent. 6. Moreover, the Petries' workers, as referred to by the Court, are from a local contracting company that is currently in business. Presumably, they could testify as to what measures they employed to determine the boundary line, but no one was called to testify on that subj ect. 7. In Defendants' Post-Hearing Memorandum dated June 27, 2009, Defendants asserted for the first time: "[T]he encroaching improvements were installed at the direction of a former owner of Defendants' lot years before Defendants acquired the property, in a location that the former owner and his contractor mistakenly and innocently believed to be on the owners' side of the property line." Defendants' Post-Trial Memorandum, pp. 4-5. This assertion of fact is not supported by any evidence in the record. The assertion was used to fit the facts of our case with the facts of Moyerman v. Glanzberg, 391 Pa. 387, 138 A.2d 681 (1958), which case was ultimately relied upon by the Court in reaching its decision. 8. The assertion of Petries' innocence in the installation of the improvements was an obvious afterthought by the Defendants, raised only when all of their other arguments were -2- found to be without merit based on evidence adduced at trial. Actual evidence at trial indicated that the Petries had not obtained a building permit to extend their pool deck and fence, which leads to the inference that they at a minimum took a chance that their measurements were inaccurate. 9. Loss of land comprising 58.7 square feet of ground surface and 6 to 8 feet of air space from a half-acre lot is not de minimis spatially or in legal effect. Under Pennsylvania law, unrecorded clouds on title must be disclosed to buyers. A cloud on title will impact the marketability of Plaintiffs' property. 10. Lack of compliance with the Hampden Township Ordinances on setback and fence requirements is a relevant factor in weighing the equities between the parties. 11. The Court improperly refused to consider evidence that the encroachments violated Hampden Township Ordinances regarding setback and fence requirements. 12. The Court misinterpreted the hardship standard applicable to Defendants' equitable claim. The proper analysis is what hardship, if any, the Defendants will suffer in having a pool deck that is two feet shorter than its present configuration. Evidence showed that the retaining wall is merely layers of manufactured stone that are not mortared together and are easily removable. The deck itself is supported on posts bolted to foundation stone, which again could be readily moved. 13. Plaintiffs request en banc review of this Motion for Post-Trial Relief pursuant to Pa. R. Civ. P. 227.2. -3- WHEREFORE, Plaintiffs respectfully request this Honorable Court to reconsider the Opinion and Order dated July 13, 2009, and to find in their favor and against Defendants in the pending action in ejectment. Respectfully submitted, WOOD AL & RAHAL, LLP Dated: July 21, 2009 LB Gary E. re , Esquire Attorney I.D. 25810 210 Walnut Street, P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim -4- CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Motion for Post-Trial Relief under Pa. R. Civ. P. 227.1 upon Defendants this date by depositing a true and correct copy of the same in the United States mail via first-class postage prepaid, addressed as follows: Peter R. Wilson, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP By. 46ary rench Dated: July 21, 2009 CORNELIUS J. KEIM, III IN THE COURT OF COMMON PLEAS OF AND LINDA L. KEIM, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS 08-2776 CIVIL TERM ORDER OF COURT And now, this 13th day of July, 2009, the interim order entered on July 2, 2009, and the opinion in support of that interim order are both vacated and replaced with the order and opinion in support of the order filed this date. /J B)vthe Court,/ i Edgar B. Bayley, Gary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants sal a: ati ar& .. ti},e Inc -ay ? ?'4r?6.f ICY?1?LYG CORNELIUS J. KEIM, III IN THE COURT OF COMMON PLEAS OF AND LINDA L. KEIM, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS 08-2776 CIVIL TERM IN RE: EJECTMENT ORDER OF COURT AND NOW, this ----y- day of July, 2009, IT IS ORDERED: (1) The complaint of plaintiffs seeking an injunction requiring the removal of an encroachment of varying width along 38.34 feet of their side line with defendants' property, IS DENIED. (2) Defendants shall remove that part of the area of flowers and bushes framed in part by some stones at the edge of a sidewalk to the extent that it extends By Edgar B. Bayley, Gary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants sal laintiffs' side line. s CORNELIUS J. KEIM, III IN THE COURT OF COMMON PLEAS OF AND LINDA L. KEIM, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS 08-2776 CIVIL TERM IN RE: EJECTMENT OPINION AND ORDER OF COURT Bayley, J., July 13, 2009:-- On April 29, 2008, plaintiffs, Cornelius J. Keim, III and Linda L. Keim, filed a complaint in ejectment against defendants, Peter R. Wilson, Jr. and Sharon J. Wilson. Plaintiffs seek an injunction ordering defendants to remove an encroachment that is on their property. Plaintiffs filed an amended complaint on June 4, 2008. A bench trial was conducted on June 17, 2009. In June, 1976, the Keims bought a residence in the Pine Brook Development at 3813 Bellows Drive, Hampden Township, Cumberland County. On January 19, 2007, the Wilsons bought the residence next door at 3811 Bellows Drive. The sellers were Bruce Graham and Shannon Graham who had bought the property from Leslie and Carol Petrie in 2005. The Petries had constructed a swimming pool and deck in their rear yard. In 1998 or 1999, the Petries told the Keims that they were extending their pool deck toward their property and asked if their workers could enter their property to make it easier to build the new deck with a retaining wall. They offered to plant arborvitae trees next to the retaining wall that would shield the wall, deck and swimming pool from view, to which the Keims agreed. The extended deck, on which there is an 08-2776 CIVIL TERM approximate six foot fence, anchored by the retaining wall, was constructed and the arborvitae were planted. In late June, 2006, the Grahams who then owned 3811 Bellows Drive, asked the Keims if they could trim the arborvitae which were extending over the fence on their pool deck. The Keims granted permission to trim the top of the trees. The Grahams not only trimmed the top but also the sides of the arborvitae. When the Keims saw that the sides were trimmed they were concerned as they thought the arborvitae had been planted on their property by the Petries. On January 19, 2007, shortly after the Wilsons settled on their purchase of 3811 Bellows Drive, Peter Wilson met Linda Keim. She told him how the Grahams had cut the arborvitae and that she and her husband were going to have a survey of their property. That same day the Keims hired Hartman and Associates, Inc., to do a survey. The fieldwork was completed on January 24, 2007, and the Keims were told by the surveyor that the arborvitae were on their property but the pool deck and retaining wall encroached onto their property. The printed survey outlining the encroachment was completed on March 13, 2007. The Keims informed the Wilsons of the encroachment in early 2008. The Wilsons then had their property surveyed by Akens Engineering Associate, Inc. The parties stipulated that this survey, which contains a separate depiction of the metes and bounds of the encroachment, is accurate. The line separating the side yards of plaintiffs and defendants runs '128.94 feet. The encroachment starts along that line at a point 56.43 feet from Bellows Drive. It runs 38.34 feet to where the retaining wall and the pool deck with the fence on top meets the Keims side line at a point 34.16 feet from -2- 08-2776 CIVIL TERM the rear of the two properties which abut a golf course. At its widest point, near the north end, the encroachment is 24.35 inches. It tapers toward the south where at the end it is 6.5 inches wide. The encroachment is along thirty percent of plaintiffs' side line and is 58.70 square feet. The Keims entire property is 19,864.91 square feet. The encroachment is hidden from their view by the arborvitae trees that are at the top of an embankment of the Keims' property near their side line. Plaintiffs, citing Pile v. Pedrick, 167 Pa. 296 (1895), maintain that they are entitled to an injunction requiring the Wilsons to remove the encroachment. Defendants maintain that an injunction should be denied because plaintiffs are guilty of laches. In Bonds v. Bonds, 689 A.2d 275 (Pa. Super 1997), the Superior Court of Pennsylvania stated: Laches arises when a party's rights have been so prejudiced by the delay of another in pursuing a claim that it would be an injustice to permit the assertion of the claim against the party so prejudiced. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). "The application of the equitable doctrine of laches does not depend upon the fact that a certain definite period of time has elapsed, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to act at another's prejudice." In re Jones, 442 Pa.Super. 463, 660 A.2d 76, 82 (1995) (citation omitted). Laches cannot: be based on a change of position taking place before the complainant could have and reasonably should have brought suit. Leedom v. Thomas, 473 Pa. 193 (1977). In Barndollar v. Groszkiewicz, 178 Pa. Super 110 (1955), the plaintiffs brought a complaint in equity seeking a mandatory injunction for the removal of a wall built by the defendant which encroached slightly more than two feet onto their property. A -3- 08-2776 CIVIL TERM judge refused to issue the injunction but awarded compensatory damages. On appeal the Superior Court of Pennsylvania affirmed. The Court set forth the facts: In 1946 the plaintiffs purchased a lot on Barkerstown Road, Tarentum, on which a garage was situated, across the street from their residence. Defendant owns a house and lot immediately adjacent to this garage property situated at a higher elevation than plaintiffs' lot. The chancellor found that plaintiffs, who have lived at their present address since 1939, were familiar with the condition of the premises in question when they purchased them. A faulty drainage condition which, according to the plaintiffs' predecessor in title, Anna Bayer, had existed since the garage was built, due to the topography of the land, brought a seepage of water into the garage. The plaintiffs, in an attempt to correct it, removed a then-existing wall between the parties' properties and in digging discovered a pipe coming from the direction of defendant's home. Plaintiffs notified defendant to remove the pipe and she complied. Plaintiffs constructed a new wall along the rear of the garage but the flooding continued. They then complained to defendant. In August 1952 defendant's son and brother erected the wall which is the subject of this proceeding. Admittedly the new wall, built entirely at defendant's expense, has remedied the drainage difficulty but the wife-plaintiff testified, "... I don't want that wall on my property. I want that wall off there." According to one witness for the plaintiffs, the wall was constructed in approximately eight or nine hours of one day. However, the husband- plaintiff testified that it took "probably three or four days" and that he not only knew about the erection of the wall but watched the progress of the work. The following excerpt from his testimony is also pertinent: "Q. Did you ever at any time go over and tell them to stop putting it up? A. They knew it didn't belong to them-Q. Answer my question, please (Question read.) A. No, I didn't." The wall was completed in August or September 1952. This action was started on September 30, 1953. The wall was completed in August or September 1952. The action against defendant was started on September 30, 1953. The Superior Court concluded: [w]e agree with the learned chancellor that under the foregoing circumstances plaintiffs are now barred by laches from asserting successfully that which, had prompt objection been made, would have been their right to a mandatory injunction, and that their sole remedy is damages. Cf. Soifer v. Stein, 101 Pa. Superior Ct. 135. -4- 08-2776 CIVIL TERM In the case sub judice, plaintiffs ordered a survey of their property because the Grahams trimmed the sides of the arborvitae trees without their permission. That made plaintiffs think that the arborvitae might not be on their property. At that point plaintiffs had no reason to believe that the retaining wall and pool deck, which were hidden from view by the arborvitae, might encroach onto their property. They first learned of that encroachment when told by their surveyor on January 24, 2007. The printed survey completed on March 13, 2007 set forth the minor extent of the encroachment. Plaintiffs did not institute this suit until April 29, 2008.' The facts in Barndollar are not on point because in that case the plaintiffs knew of the encroachment as soon as it was constructed yet substantially delayed seeking an injunction to require its removal. In the present case, plaintiffs had no reason to believe that the pool deck and retaining wall encroached on their property until after the Wilsons purchased 3811 Bellows Drive. Although plaintiffs waited a little over a year after learning of the encroachment, to institute this suit, laches does not apply because there was no want of due diligence on their part in failing to act to the Wilsons' prejudice. Defendants further maintain that an injunction to require the removal of the encroachment should be denied because the encroachment is de minimis. In Moyerman v. Glanzberg, 391 Pa. 387 (1958), the appellee applied to a building inspector for a permit to erect a dwelling on his lot and in his application incorrectly ' Plaintiffs maintain that they did not file suit earlier because for a period of time they were preoccupied with making repairs as a result of water damage on their property. (This damage was not caused by the encroachment). This is of no legal import on the issue of whether laches applies. -5- 08-2776 CIVIL TERM stated the length of the lot frontage. The permit was granted and the dwelling was constructed. Had the lot dimensions actually been as represented on appellee's application, the dwelling as located could not have been the subject of objection. However, the lot had less frontage than set forth on the application. As a result the completed dwelling that was located in accordance with the incorrect dimensions was built so close to the boundary line with appellants' property that it encroached on their driveway to a depth of from 14 to 16 inches. Appellants had granted to the appellees an easement over the 25 foot driveway but title to the driveway was retained by appellants. The appellee became aware of the situation only after the dwelling had been substantially completed. Appellants filed a complaint in equity seeking an injunction against the appellee's continued encroachment on the driveway. The chancellor found: (1) that the appellee's encroachment upon the easement, although indisputably a continuing trespass, was neither wilful nor intentional but was, rather, the result of a mistake on the appellee's part regarding the quantum of land he had purchased; (2) that the appellee's mistake was attributable to his innocent belief that he was the owner of the driveway and that he had granted the appellants the easement thereover whereas exactly the converse was true; (3) that the appellants were not guilty of laches in failing to initiate their action before the construction had been substantially completed because the encroachment was too slight to be readily discernible and because building materials and other debris in the area tended to obscure it; (4) that the appellants did, however, know that the appellee was violating the zoning ordinance but took no action until the dwelling had been practically completed; (5) that the encroachment did not materially interfere with the use of the easement. The chancellor concluded that "the granting of an injunction in this case would be inequitable, doing more harm than the wrong sought to be redressed." An injunction -6- 08-2776 CIVIL TERM was denied and a hearing ordered to assess damages resulting from the permanent trespass on appellants' land. The order was affirmed by the Supreme Court of Pennsylvania which noted that "An injunction is not of right and the chancellor is not bound to make a decree which will do far more mischief and work greater injury than the loss he has asked to redress." The Court stated that it was in agreement with the lower court "that the granting of the injunction in this case which would compel appellee to tear down a portion of a completely constructed dwelling would be creative of more harm to the appellee than the benefit to appellants." The Court further noted that despite this doctrine the lower court would have had no choice but to grant the injunction if it had found that the appellee had deliberately and willfully built upon the appellants' property or if it believed that he had intentionally taken a chance, thus acting in bad faith. The Court concluded that the chancellor's finding that the encroachment was a result of an unintentional mistake rather than a willful and intentional trespass was supported by the evidence. In the case sub judice, the limited extent of the encroachment over plaintiffs side line, as we have described in detail, shows that the setting of the retaining wall, with the building of the deck and fence on top, for which the Petries asked for and obtained from plaintiffs' access to their property for ease of construction, was a mistake by the Petries' workers as they shored up the pool deck. The trespass was neither willful nor intentional and no one knew about it for at least ten years. The encroachment is trivial in effect and de minimis. It is too slight to be readily discernible. It is hidden by the arborvitae trees that were planted on plaintiffs' land by the Petries and which now have grown tall and thick and benefit plaintiffs by shielding from -7- 08-2776 CIVIL TERM view the retaining wall, deck, fence and swimming pool. Prior to the expansion the deck and swimming pool were visible from plaintiffs' property. The encroachment does not harm plaintiffs aesthetically or otherwise and does not materially interfere with their use and enjoyment of their property. To remove the encroachment the Wilsons will have to take down the fence, tear apart a significant part of the pool deck, remove the retaining wall, and then rebuild the deck with adequate surface support. That would create a significant hardship on the Wilsons. Granting an injunction to require the removal of the encroachment would be inequitable because it would create more harm than the wrong sought to be redressed. Moyerman provides support for denying an injunction to require the removal of the encroachment.2 The permanent trespass can best be remedied by monetary damages. See Moyerman.' There is a pretty area at the edge of the sidewalk in the front of defendants' property containing some flowers and bushes framed in part by some stones. The boundary marker Z Plaintiffs maintain that their request for an injunction is enhanced because the pool deck violates the ten foot side line set back required by the Hampden Township Zoning Ordinance. Defendants argue that there is no side line set back under the Hampden Township Zoning Ordinance that applies to the location of the pool deck. We do not have to decide who is correct. The Supreme Court in Moyerman disregarded evidence that the encroaching dwelling in that case failed to comply with a side yard set back requirement established by a township zoning ordinance. The court declined to place a thumb on the scale in plaintiffs' favor relating to the set back violation because plaintiffs had failed to timely object to the location of the dwelling, observing that "the juxtaposition of the location of the dwelling to the lot boundary would have rendered obvious a violation of the side yard requirement of the zoning ordinance." ' The Keims instituted a separate suit against the Wilsons for damages caused by the encroachment. The Grahams have been joined as additional defendants. No. 08-6647 Civil. -8- 08-2776 CIVIL TERM that was placed during the surveys shows that this area is slightly over plaintiffs' side line. Plaintiffs want the part that is over their side line removed. There is no evidence in the record as to which previous owners of 3811 Bellows Drive put in this area or when it was put in. Removing any part of this area that is over plaintiffs' side line will be easy for the Wilsons to accomplish with no significant cost. The equities in this situation warrant an order granting plaintiffs' relief. ORDER OF COURT AND NOW, this I r day of July, 2009, IT IS ORDERED: (1) The complaint of plaintiffs seeking an injunction requiring the removal of an encroachment of varying width along 38.34 feet of their side line with defendants' property, IS DENIED. (2) Defendants shall remove that part of the area of flowers and bushes framed in part by some stones at the edge of a sidewalk to the extent that it extends over plaintiffs' side line. Gary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants sal D -9- Edgar B. Bayley, J. n inn F,'L 42 FYI 1 ?v/ JV CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 08-2776 CIVIL TERM ORDER OF COURT And now, this Z7 day of July, 2009, IT IS ORDERED: (1) Plaintiffs shall order and pay for the transcript from the stenographer. (2) Plaintiffs shall file an original brief in chambers not later than fifteen (15) days after the transcript is filed. (3) Defendants shall file an original brief in chambers not later than thirty (30) days after the transcript is filed. (4) After the transcript is filed, an order will be entered setting a date and time for oral argument. ary E. French, Esquire For Plaintiffs /eter R. Wilson, Esquire For Defendants Stenographer sal 4 FILED-OFFICE OF THE P R'ET:-p OTA?Y 2009 JUL 23 Pil 2'. 12 ;zy Hkli 1114! S\;, 601"NA CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 08-2776 CIVIL TERM ORDER OF COURT And now, this (? day of September, 2009, oral argument shall commence at 1:30 p.m., Thursday, September 24, 2009, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Gary E. French, Esquire For Plaintiffs ," Peter R. Wilson, Esquire For Defendants sal Edgar B. Bailey, J. RED- OF T1 4E r?".Ff ;; A Y 2089 SEP 15 M 8::3 j CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 08-2776 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR POST-TRIAL RELIEF ORDER OF COURT AND NOW, this S? day of October, 2009, the motion of plaintiffs for post-trial relief, IS DENIED. ,nary E. French, Esquire For Plaintiffs eter R. Wilson, Esquire For Defendants V ' :s al o o`? V- ?o By Edgar B. Bayley, J. OF n+Ei rear 2009 OCT -I RM 4: 15 CUM ! «_rl%?'+D C"ID MY PENNG VANIIA CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS 08-2776 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR POST-TRIAL RELIEF OPINION AND ORDER OF COURT Bayley, J., October 1, 2009:-- On July 13, 2009, following a bench trial, an order was entered denying relief to plaintiffs, Cornelius J. Keim, III and Linda L. Keim, who sought an injunction against defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, to remove an encroachment of a varying width along 38.34 feet of their 128.94 feet sideline with defendants' property. Plaintiffs filed a motion for post-trial relief which was briefed and argued on September 24, 2009. An opinion filed in support of the order of July 13, 2009, is incorporated in this opinion. 1. Plaintiffs maintain that "the court erred in finding that the pool-related encroachments were innocently installed when there is no evidence to support the finding." To the contrary, the reasonable inference drawn from the evidence was that the encroachment was innocently installed. As set forth in the prior opinion: The Petries had constructed a swimming pool and deck in their rear yard. In 1998 or 1999, the Petries told the Keims that they were extending their pool deck toward their property and asked if their workers could enter their property to make it easier to build the new deck with a retaining wall. They offered to plant arborvitae trees next to the retaining wall that would shield the wall, deck and swimming pool from view, to which the Keims agreed. The extended deck, on which there is an approximate six foot fence, anchored by the retaining wall, was 08-2776 CIVIL TERM constructed and the arborvitae were planted. These facts do not support a reasonable inference that the Petries, after telling the Keims what they were going to do and obtained their permission for the temporary right to enter their land to construct an extended deck and retaining wall, acted in bad faith by intentionally taking a chance of encroaching on the Keims' property. II. Plaintiffs maintain that "the court erred in finding that the loss of 58.78 square feet of a half-acre lot is de minimis." As set froth in the prior opinion: The line separating the side yards of plaintiffs and defendants runs 128.94 feet. The encroachment starts along that line at a point 56.43 feet from Bellows Drive. It runs 38.34 feet to where the retaining wall and the pool deck with the fence on top meets the Keims side line at a point 34.16 feet from the rear of the two properties which abut a golf course. At its widest point, near the north end, the encroachment is 24.35 inches. It tapers toward the south where at the end it is 6.5 inches wide. The encroachment is along thirty percent of plaintiffs' side line and is 58.70 square feet. The Keims entire property is 19,864.91 square feet. Plaintiffs state in their brief that, "No case can be located allowing such a large encroachment in place on such a small lot as the Keims' lot." In Moyerman v. Glanzberg, 391 Pa. 387 (1958), which provided support for denying an injunction in the present case, Glanzberg owned a lot with frontage of 80.38 feet, a depth of 175 feet, and a rear width of 58.89 feet. That is 12,163.15 square feet. The encroachment on a sideline that the Supreme Court concluded was de minimis ran approximately ten feet at a depth from 14 to 16 inches. Thus, the de minimis encroachment was slightly smaller than the encroachment in the present case, but the lot was significantly smaller than the Keims' lot. There is no specific size that makes an encroachment de minimis. Whether it is de minimis involves its relationship to the affected land. As we previously -2- 08-2776 CIVIL TERM stated, no one even knew about the encroachment onto the Keims' land for at least ten years after it was constructed. It is too slight to be readily discernable. It is hidden by the arborvitae trees that were planted on plaintiffs' land by the Petries and which have now grown tall and thick and benefit plaintiffs by shielding from view the retaining wall, deck, fence and swimming pool on defendants' property. The small area of the encroachment does not harm plaintiffs aesthetically or otherwise does not materially interfere with their use and enjoyment of the property. It is trivial and de minimis. III. Plaintiffs maintain that "the court erred in failing to take into account violations of the Hampden Township Ordinances." As set forth in the prior opinion, we relied on Moyerman in not making a determination of whether the retaining wall and pool deck, as claimed by plaintiffs and denied by defendants, violated a ten foot sideline set back in the Hampden Township Zoning Ordinance. In Moyerman, the Supreme Court disregarded evidence that an encroaching dwelling, which was determined to be de minimis, failed to comply with a side yard set back requirement in a township zoning ordinance. Plaintiffs try to distinguish the facts in the present case from those in Moyerman because here the encroachment is a retaining wall and pool deck while in Moyerman the encroachment was a dwelling. That is a distinction without a difference because both encroachments are physical structures. IV. Plaintiffs maintain that "the court erred in its interpretation of the hardship standard for removal of boundary encroachments." They argue that the court failed to address any of the substantial and material hardship raised by them at trial, while at the same time overstating the Wilsons' alleged hardship beyond anything suggested at trial. -3- 08-2776 CIVIL TERM They set forth in their brief: "First and foremost allowing the permanent encroachment to remain creates a cloud on title to 58.70 square feet of the Keims' land. Title to the encroachment is in limbo." That is legally incorrect. The Keims' title to their property is not affected by what is now a continuing trespass any more than their title would be affected if a part of their property was subject to either an express or prescriptive easement. They have not lost title to the 58.70 square feet encroaching on their property. They are entitled to recover any damages suffered as a result of what is now a continuing trespass on their property. Plaintiffs take issue with the following finding: "To remove the encroachment the Wilsons will have to take down the fence, tear out a significant part of the pool deck, remove the retaining wall, and then rebuild the deck with adequate surface support." The evidence supports this finding and the conclusion that to do so would create a significant hardship on the Wilsons, and to require them to remove the encroachment would be inequitable because it would create more harm than the wrong sought to be redressed. Plaintiffs argue that the court ignored their testimony regarding erosion and loss of use of their land. We did not mention it because the little erosion on the bank leading up to the retaining wall, which area is heavily shaded, is insignificant. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this 44- day of October, 2009, the motion of plaintiffs for post-trial relief, IS DENIED. -4- 08-2776 CIVIL TERM Gary E. French, Esquire For Plaintiffs Peter R. Wilson, Esquire For Defendants sal -5- Gary E. French, Esquire Attorney I.D. No. 25810 Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 frg ench(a-)keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM ACTION IN EJECTMENT NOTICE OF APPEAL Notice is hereby given that Cornelius J. Keim and Linda L. Keim, Plaintiffs above named, hereby appeal to the Superior Court of Pennsylvania from the Order entered in this matter on July 13, 2009, and from the Order on Plaintiffs' Motion for Post-Trial Relief entered on October 1, 2009. The Orders have been entered on the docket as evidenced by the attached copy of the docket entry. Dated: October d,3, 2009 KEEFER WOOD ALLFN & RAHAL, LLP GapfE. French, Esquire Attorney I.D. 25810 210 Walnut Street, P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim Gary E. French, Esquire Attorney I.D. No. 25810 Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 gfrench(a)keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM Defendants : ACTION IN EJECTMENT COUNSEL'S STATEMENT REGARDING TRANSCRIPT Pursuant to Pa. R. A. P. 904(c), counsel for Appellants hereby certifies that (i) the complete transcript of proceedings in the lower court has previously been lodged of record, and (ii) request for transcript is unnecessary in connection with the accompanying Notice of Appeal. Dated: October, 2009 KEEFER AL, LLP B Attorney I.D. 2 5810 210 Walnut Street, P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2008-02776 KEIM CORNELIUS J II ET AL (vs) WILSON PETER R JR ET AL Reference No... Filed......... 4/29/2008 Case Ty e.....: COMPLAINT - Judgment..... EJECTMENT 00 Time...... . Execution Date 2:27 0/00/0000 Judge Assigned: BAYLEY EDGAR B Disposed Desc.: Jury Trial.... Disposed Date. t 1 i h C 0/00/0000 ------------ Case Comments - ------------ .: r g er H Higher Crt 2.: ******************************************************************************** General Index Attorney Info KEIM CORNELIUS J III PLAINTIFF FRENCH GARY E 3813 BELLOWS DRIVE CAMP HILL PA 17011 KEIM LINDA L PLAINTIFF FRENCH GARY E 3813 BELLOWS DRIVE CAMP HILL PA 17011 WILSON PETER R JR DEFENDANT 3811 BELLOWS DRIVE CAMP HILL PA 17011 WILSON SHARON J DEFENDANT 3811 BELLOWS DRIVE CAMP HILL PA 17011 GRAHAM BRUCE J DEFENDANT GRAHAM SHANNON DEFENDANT ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 4/29/2008 COMPLAINT - EJECTMENT FILED BY GARY E FRENCH ESQ FOR PLFFS ------------------------------------------------------------------- 5/29/2008 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLFFS' COMPLAINT - BY PETER R WILSON ATTY FOR DEFTS ------------------------------------------------------------------- 6/04/2008 AMENDED COMPLAINT IN EJECTMENT - BY GARY E FRENCH ATY FOR PLFFS ------------------------------------------------------------------- 6/23/2008 DEFENDANTS' PRELIMINARY OBJECTIONS TO PLFFS' AMENDED COMPLAINT - BY PETER R WILSON ATTY FOR DEFTS ------------------------------------------------------------------- 7/01/2008 SECOND AMENDED COMPLAINT IN EJECTMENT - BY GARY E FRENCH ATTY FOR PLFFS ------------------------------------------------------------------- 7/09/2008 SECOND AMENDED COMPLAINT IN EJECTMENT - BY GARY E FRENCH ATTY FOR PLFFS ------------------------------------------------------------------- 8/06/2008 DEFENDANT'S RESPONSE TO PLFFS'REQUEST FOR ADMISSION - BY PETER R WILSON ATTY FOR DEFTS ------------------------------------------------------------------- 8/06/2008 DEFENDANT'S ANSWER WITH NEW MATTER - BY PETER R WILSON ATTY FOR DEFTS ------------------------------------------------------------------- 9/03/2008 PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANT - BY PETER R WILSON ATTY FOR DEFTS PETER R WILSON JR AND SHARON J WILSON ------------------------------------------------------------------- 9/03/2008 WRIT TO JOIN ADDITIONAL DEFENDANT - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- 9/18/2008 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT TO ADD'L DEFEN. Ret Type.: Out of County Litigant.: GRAHAM BRUCE J Address..: 25 ORCHARD STREET SERVED 9/09/08 Cty/St/Z : EXETER PA 18643 RetnDate.: 09/18/2008 10:00 AM Costs....: $79.93 Pd By: REAGER & ADLER 09/18/2008 ------------------------------------------------------------------- 9/18/2008 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT TO ADD'L DEFEN. Ret Type.: Out of County PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2008-02776 KEIM CORNELIUS J II ET AL (vs) WILSON PETER R JR ET AL Reference No..: Filed........: 4/29/2008 Case Type.....: COMPLAINT - EJECTMENT Time.......... 2:27 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Litigant.: GRAHAM SHANNON Higher Crt 2.: Address..: 25 ORCHARD STREET SERVED 9/09/08 Cty/St/Pm : EXETER, PA 18643 County : LUZERNE Ret Date.: 09/18/2008 10:00 AM Costs....: $16.00 Pd By: REAGER & ADLER 09/18/2008 ------------------------------------------------------------------- 1/07/2009 OBJECTIONS TO REQUES FOR ENTRY UPON PROPERTY OF A PARTY - BY GARY E FRENCH ATTY FOR PLFFS ------------------------------------------------------------------- 4/07/2009 PRAECIPE FOR LISTING CASE FOR NONJURY TRIAL BY GARY E FRENCH ESQ FOR PLFFS -------------------------------------------------------------------ON JURY TRI TRIAL 4/17/2009 CORDER OF ONFERENCEOSC //HEDULED7//FOR 4//2R//09NAT 11:00 AMAIN CR2ECUMBERLAND COUNTY COURTHOUSE - BY EDGAR B BAYLEY J - COPIES MAILED 4/17/09 ------------------------------------------------------------------- 4/28/2009 PRE-TRIAL CONFERENCE MEMORANDUM - BY EDGAR B BAYLEY J - COPIES MAILED 4/28/09 ------------------------------------------------------------------- 7/02/2009 OPINIONJAND INTESIMAIRDER7/2/09/09 IN RE: EJECTMENT - BY EDGAR B ------------------//---//---------------------------------------------- 7/13/2009 ORDER SUPPORT0OF THAT INTERIM ORDER ENTERED 7/2/09 VACATED ANAND D REPLACED WITH THE ORDER AND OPINION IN SUPPORT OF THE ORDER FILED THIS DATE - BY EDGAR B BAYLEY J - COPIES MAILED 7/13/09 ------------------------------------------------------------------- 7/13/2009 OPINION AND ORDER OF COURT - 7/13/09 IN RE: EJECTMENT - BY EDGAR B BAYLEY J - COPIES MAILED 7/13/09 ------------------------------------------------------------------- 7/22/2009 PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF UNDER PA R.C.P. 227.1(C)(2) AND REQUEST FOR EN BANC REVIEW FILED BY GARY E FRENCH ESQ FOR PLFFS ------------------------------------------------------------------- 7/23/2009 ORDER OF COURT - 7/23/09 IN RE: PLFFS MOTION FOR POST TRIAL RELIEF UNDER PA RCP 227.1C2 AND REQUEST FOR EN BANC REVIEW - BY EDGAR B BAYLEY J - COPIES MAILED 7/23/09 ------------------------------------------------------------------- 8/12/2009 TRANSCRIPT FILED - IN RE: NONJURY TRIAL - BEFORE EDGAR B BAYLEY J ------------------------------------------------------------------- 9/15/2009 ORDER OF COURT - 9/14/09 - ORAL ARGUMENT SHALL COMMENCE ON 9/24/09 AT 1:30 PM IN CR2 CUMBERLAND COUNTY COURTHOUSE - BY EDGAR B BAY LEY J - COPIES MAILED 9/15/09 ------------------------------------------------------------------- 10/01/2009 OPINION AND ORDER OF COURT - 10 1 09 IN RE: MOTION OF PLFFS FOR POST TRIAL RELIEF - MOTION IS D N ED - BY EDGAR B BAYLEY J - COPIES MAILED 10/1/09 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq*Bal P}Vmts/Adj End Bal ******************************** ******* ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 ------------------------ ------------ 103.50 103.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Notice of Appeal and Counsel's Statement Regarding Transcript upon the parties listed below this date by depositing a true and correct copy of the same in the United States mail via first-class postage prepaid, addressed as follows: The Honorable Edgar B. Bayley, President Judge Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Peter R. Wilson, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 Pamela Sheaffer, Court Reporter 1 Courthouse Square Carlisle, PA 17013 Cumberland County Court Administrator's Office Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 KEEFER WOOD ALLEN & RAHAL, LLP By. Gary . French Dated: October, 2009 RL ED-uF'r"a OF THE PPO HMIARI 2009OCT 26 PM 2* 2 I t' f ",I ! 1? ??N IA $+8. co Pa gn- f ?rt 8G?(o RTC a3a ss? -}o Superior &rt r%7/oy Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 AOPC 3014 Rev.10/29/2009 aft Karen Reid Bramblett, Esq. 6upertor Court of Venuoptbanta Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary October 29, 2009 RE: Cornelius J. Keim, III and Linda L. Keim Appellant V. Peter R. Wilson, Jr. and Sharon J. Wilson 1827 MDA 2009 Trial Court Docket No: 2008-02776 Dear Attorney French Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. pa. us Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully yours, Milan K. Mrkobrad, Esq. Deputy Prothonotary /vsl Enclosure cc: The Honorable Edgar B. Bayley, President Judge Court Reporter Mr. Curtis R. Long, Prothonotary Peter Reid Wilson, III, Esq. 10:14 A.M. Appeal Docket Sheet Docket Number: 1827 MDA 2009 Page 1 of 2 October 29, 2009 CAPTION Cornelius J. Keim, III and Linda L. Keim Appellant V. Peter R. Wilson, Jr. and Sharon J. Wilson Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: October 26, 2009 Journal Number: Case Category: Civil CONSOLIDATED CASES Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received Appellant Kei Pro Se: No IFP Status: No Attorney: Bar No: Address: CASE INFORMATION Awaiting Original Record Case Type(s): Ejectment RELATED CASES SCHEDULED EVENT Next Event Due Date: November 12, 2009 Next Event Due Date: December 28, 2009 COUNSEL INFORMATION m, Cornelius J. & Linda L., III Appoint Counsel Status: Represented French, Gary E. 025810 210 Walnut St PO Box 11963 Harrisburg, PA 17108-1963 Phone No: (717) 255-8015 Fax No: (717) 255-8050 Receive Mail: Yes Receive EMail: No EMail Address: gfrench@keeferwood.com Appellee Wilson, Peter R. & Sharon J., Jr. Pro Se: No Appoint Counsel Status: Represented IFP Status: Attorney: Wilson, Peter Reid, III Bar No: 087655 Address: Reager & Alder PC 2331 Market St Camp Hill, PA 17011-4642 Phone No: (717) 763-1383 Fax No: Receive Mail: Yes Receive EMail: No EMail Address: pwilson@reageradlerpc.com 10:14 A.M. Appeal Docket Sheet Docket Number: 1827 MDA 2009 Page 2 of 2 October 29, 2009 Date Name 10/26/2009 Notice of Appeal Superior Court of Pennsylvania Secure FEE INFORMATION Receipt Number 2009-SPR-M-000916 $ AGENCY/TRIAL COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Order Appealed From: October 1, 2009 Judicial District: Documents Received: October 28, 2009 Notice of Appeal Filed: Order Type: Order Entered Judge, Title: Bayley, Edgar B., President Judge Lower Court Docket No 2008-02776 Original Record Item ORIGINAL' RECORD CONTENT Filed Date Date of Remand of Record: BRIEFING SCHEDULE None DOCKETENTRY Filed Date Docket Entry Participant Type October 26, 2009 Notice of Appeal Docketed Appellant October 29, 2009 Docketing Statement Exited (Civil) Fee Amt Paid Amt 60.00 $ 60.00 Cumberland County Civil Division 09 October 26, 2009 OTN Content Description None Filed By Keim, Cornelius J. & Linda L., III Middle District Filing Office CF THE F` 2009 CC T 3 0 F l 1: 4 2 Ctiir'' 1 ;' 'Ni T CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Cornelius J. Keim, III and Lindal L. Keim VS. Peter R. Wilson, Jr. and Sharon J. Wilson 08-2776 Civil 1827 MDA 2009 The documents comprising the record have been numbered from No.1 to 266 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 11/18/2009 ?K LC,wlis R. Long, Prothon tart' Regina Lebo An additional cony of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, I have hereunt this 18th I Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Cornelius J. Keim III and Linda L. Keim Plaintiff, and Peter R. Wilson, Jr. Sharon J. Wilson Defendant , as the same remains of record before the said Court at No. 08-2776 of civil Term, A. D. 19 . t set my hand and affixed the seal of said Court d of No ber A. D., 13x2009 S Prothonotary 1, Edgar B. Bayley President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to-all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere-,-a td-that the said record, certificate and attestation are in due form of law and made by the proper officef. President .fudge Commonwealth of Pennsylvania County of Cumberland ss: 1, Curtis R. Long Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Edgar B Bayley by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 18th day A. D. X32009 . I Prothonotan Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Cumberland in the Commonwealth of Pennsylvania 1827 MDA 2009 to No. 08-2776 Civil Term Term, 19 is contained the following: COPY OF Amearance DOCKET ENTRY Cornelius J. Keim, III and Linda L. Keim VS. Peter R. Wilson, Jr. and Sharon J. Wilson **SEE CERTIFIED COPY OF THE DOCKET ENTRIES** a S O CD H ° o a .. E09 v l) b :E: eb y o y 0 o z 0 v '[V 0 0 I z 0 PYS511 Cumberland County Prothonctary's Office Page 1 Civil Case Print 2008-02776 KEIM CORNELIUS J II ET AL (vs) WILSON PETER R JR ET AL Reference No..: Filed........: 4/29/2008 Case Type.....: COMPLAINT - EJECTMENT Time.........: - 2:27 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1827 MDA2009 Higher Crt 2.: ******************************************************************************** General Index Attorney Info KEIM CORNELIUS J III PLAINTIFF FRENCH GARY E 3813 BELLOWS DRIVE CAMP HILL PA 17011 KEIM LINDA L PLAINTIFF FRENCH GARY E 3813 BELLOWS DRIVE CAMP HILL PA 17011 WILSON PETER R JR DEFENDANT 3811 BELLOWS DRIVE CAMP HILL PA 17011 WILSON SHARON J DEFENDANT 3811 BELLOWS DRIVE CAMP HILL PA 17011 GRAHAM BRUCE J DEFENDANT GRAHAM SHANNON DEFENDANT ******************************************************************************** * Date Entries FIRST ENTRY - - - - - - 4/29/2008 COMPLAINT - EJECTMENT FILED BY GARY E FRENCH ESQ FOR PLFFS ---------- --- 5/29/2008 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLFFS' COMPLAINT - BY PETER R WILSON ATTY FOR DEFTS ------------------------------------------------------------------- f9- 3D 6/04/2008 AMENDED COMPLAINT IN EJECTMENT - BY GARY E FRENCH ATY FOR PLFFS ------------------------------------------------------------------- 3? J 6/23/2008 DEFENDANTS'WIRELIMINARYFOBJECTIONS TO PLFFS' AMENDED COMPLAINT - ------------------------------------------------------------------- .?ln- .? 7/01/2008 SECOND AMENDED COMPLAINT IN EJECTMENT - BY GARY E FRENCH ATTY FOR PLFFS ------------------------------------------------------------------- y?- 7/09/2008 SECOND AMENDED COMPLAINT IN EJECTMENT - BY GARY E FRENCH ATTY FOR PLFFS --------- ----------- ----------------- -------------- ---------------- 8/06/2008 DEFENDANT'S RESPONSE TO PLFFS'REQUEST FOR ADMISSION - BY PETER R WILSON ATTY FOR DEFTS ------------------------------------------------------------------- G??' 8/06/2008 DEFENDANT'S ANSWER WITH NEW MATTER - BY PETER R WILSON ATTY FOR DEFTS ------------------------------------------------------------------- 7d 9/03/2008 PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANT - BY PETER R WILSON ATTY FOR DEFTS PETER R WILSON JR AND SHARON J WILSON ------------------------------------------------------------------- 7/- 7a 9/03/2008 WRIT TO JOIN ADDITIONAL DEFENDANT - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- 73 9/18/2008 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT TO ADD'L DEFEN. Ret Type.: Out of County Litigant.: GRAHAM BRUCE J Address..: 25 ORCHARD STREET SERVED 9/09/08 : EXETER County/Nm: LUZERNk PA 18643 Ret Date.: 09/18/2008 10:00 AM Costs....: $79.93 Pd By: REAGER & ADLER 09/18/2008 ------------------------------------------------------------------- 7y_ 7(` 9/18/2008 Case Type: FILE RETURNED FILED. Type.: Out of County PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2008-02776 KEIM CORNELIUS J II ET AL (vs) WILSON PETER R JR ET AL Reference No..: Filed........: 4/29/2008 Case Type.....: COMPLAINT - EJECTMENT Time........ 2:27 Judgment..... 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 182`77 MDA2009 Higher Crt 2.: Address..: 255 OR HARD SHANNON SERVED 9/09/08 Cty/St/Z : EXETER PA 18643 County Nm: LU7ER ' Ret Date.: 09/18/2008 10:00 AM Costs....: $16_00-Pd-By: REAGER & ADLER 09/18/2008 ----------- ------------------------------------ 7-?J3 1/07/2009 O E FRENCH BJECTIONS ATTO FORUPLFFSR ENTRY UPON PROPERTY OF A PARTY - BY GARY ---------------------------------------------------------------- 4/07/2009 PRAECIPE FOR LISTING CASE FOR NONJURY TRIAL BY GARY E FRENCH ESQ FOR PLFFS ------------------------------------------------ 4/17/2009 CORDER OF ONFERENCEO /SCHEDULED7 /FOR 4/27/09 AT 11:00 AMAIN CR2ECUMTRIAL BERLAND COUNTY COURTHOUSE - BY EDGAR B BAYLEY J - COPIES MAILED 4/17/09 ---------------------------------------------------------- 4/28/2009 P RE-TRIAL CONFERENCE MEMORANDUM - BY EDGAR B BAYLEY J - COPIES MAILED 4/28/09 -------------------------------------------------------------- 7/02/2009 OPINION AND INTERIM ORDER - 7/2/09 IN RE: EJECTMENT - BY EDGAR B BAYLEY J - COPIES MAILED 7/2/09 7/13/2009 ORDER OF COURT - 7 13 09 - THE INTERIM ORDER ENTERED ON 7/2/09 AND ------------------------------------------------------------------- THE OPINION IN SUPPORT OF THAT INTERIM ORDER ARE BOTH VACATED AND REPLACED WITH THE ORDER AND OPINION IN SUPPORT OF THE ORDER FILED THIS DATE - BY EDGAR B BAYLEY J - COPIES MAILED 7/13/09 ------------------------------------------------------- 130 7/13/2009 OPINIOONANER OF COURT BAYLEY JDCORDIES MAILED 7/13/093/09 IN RE: EJECTMENT - BY EDGAR B -------------------------------------------------------- ??- fS`7 7/22/2009 PLAINTIFF'S MOTION POST-TRIAL AND REQUEST FOR EN BANC RELIEF E REVIEW FILED A BY GARY E FRENCH ESQ FOR PLFFS -------------------------------------------------------------- 7/23/2009 ORDER OF COURT - 7/23/09 IN RE: PLFFS MOTION FOR POST TRIAL RELIEF UNDER PA RCP 227.1C2 AND REQUEST FOR EN BANC REVIEW - BY EDGAR B BAYLEY J - COPIES MAILED 7/23/09 ------------------------------------------------------------------- ??? ?y+8/12/2009 TRANSCRIPT FILED - IN RE: NONJURY TRIAL - BEFORE EDGAR B BAYLEY J ------------------------------------------------------------------- 9/24/09 9/15/2009 ATD1:30FPM0 NTCR29CUM /09 - SHALL COMM EEDGARNCE J - COPIES MAILED 9/15/09 ------------------------------------------------------------------- ?5.1.5410/01/2009 OPINION AND ORDER OF COURT - 10/1/09 IN RE: MOTION OF PLFFS FOR POST TRIAL RELIEF - MOTION IS DENIED - BY EDGAR B BAYLEY J - COPIES MAILED 10/1/09 ------------------------------------------------------------------- s 7 -26/ 10/27/2009 N OTICE OF APPEAL TO SUPERIOR COURT - BY GARY E FRENCH ATTY FOR PLFF ------------------------------------------------------------------- 10/30/2009 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1827 MDA 2009 ------------------------------------------------------------------- 11/18/2009 NOTICE OF DOCKET ENTRIES MAILED TO GARY E FRENCH ESQ AND PETER R WILSON ESQ LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Beg Bal Pmts/Adj End Bal ******************************** ******** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 50 .00 SETTLEMENT 8.00 8..00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 PYS511 Cumberland County Prothonotary 's Office Page 3 Civil Case Print 2008-02776 KEIM CORNELIUS J II ET AL (vs) WILSON PETER R JR ET AL Reference No..: Case T e.....: COMPLAINT - EJECTMENT Filed........: Time........ 4/29/2008 2:27 Jud men 00 Judge Assigned: BAYLEY EDGAR B Execution Date 0/00/0000 Disposed Desc.: ------------ Case Comments ------------- Jury Trial.... Disposed Date. Hi 0/00/0000 ' ghher Crt 1.: 182 77 MDA2009 PRAECIPE TRIAL 25.00 25.00 Highe 00rt 2.: APPEAL HIGH CT 48.00 48.00 ---------------- . .00 -------- -- 151.50 151.50 ---------- .00 **************************************************** **************************** * End of Case Information **************************************************** **************************** In ? hand and the s a i This ....X .... G of ylr?t....,CZ? f .................' ,:..,. Prothonotary Gary E. French, Esquire Attorney I.D. No. 25810 Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 frg ench(a-)keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM ACTION IN EJECTMENT PRAECIPE FOR ENTRY OF JUDGMENT PURSUANT TO PA. R. C. P. 227.4(2) TO: Curt Long, Prothonotary Kindly enter judgment in favor of Defendants and against Plaintiffs in the above- captioned matter, which judgment confirms the Court's Order dated October 1, 2009, denying Plaintiffs' Motion for Post-Trial Relief. Dated: December 9, 2009 KEEFER WOOD ALLE AL, LLP Gary . Fren , Esquire Attorney I.D. 25810 210 Walnut Street, P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Praecipe for Entry of Judgment pursuant to Pa. R. Civ. P. 227.4(2) upon Defendants this date by depositing a true and correct copy of the same in the United States mail via first-class postage prepaid, addressed as follows: Peter R. Wilson, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP 461ay E. rench Dated: December 9, 2009 fiLE?:;?r?{4 ,)F = it P?W"" ? 1 P ZQ9 GC,' 10 ti ? (0 0 41 +. 00 P A A r?/ ?# X80(0 r CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: REWD FII.Fn IN gtwwnR nM1Rl NOV 2 0 2000 HARHISBUft- attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. Cornelius J. Keim, III and Lindal L. Keim VS. Peter R. Wilson, Jr. and Sharon J. Wilson 08-2776 Civil 1827 MDA 2009 The documents comprising the record have been numbered from No .1 to 266 and The date on which the record has been transmitted to the Appellate Court is 11/ 18/2009 . S urtis R. Long, Protho tart' Regina Lebo An additional copy of this certificate is enclosed Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title