HomeMy WebLinkAbout08-3439V
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
Leroy r. ?,niiat, 111 and Linda K. 5hildt,
husband and wife,
Plaintiffs
V.
James H. Slyder and Mary C. Slyder,
husband and wife,
and
Emmanuel Papamarkakis and
Jessica Papamarkakis, husband and wife,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. y 3 CIVIL TERM
JURY TRIAL DEMANDED
CIVIL ACTION - LAW
NOTICE TO PLEAD
TO: James H. Slyder and Mary C. Slyder, Defendants
429 Chestnut Street
Mount Holly Springs, PA 17065
and
Emmanuel Papamarkakis and Jessica Papamarkakis, Defendants
l0A East Orange Street
Mount Holly Springs, PA 17065
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
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 Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
Date: 1?/,J/d y '?,
ark W. Allsh
ouse squire
ttorney y ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt,
husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
James H. Slyder and Mary C. Slyder,
husband and wife,
and
Emmanuel Papamarkakis and
Jessica Papamarkakis, husband and wife,
Defendants
NO. lS?-3y367
CIVIL TERM
JURY TRIAL DEMANDED
CIVIL ACTION -LAW
COMPLAINT
AND NOW, come Plaintiffs, Leroy F. Shildt, III and Linda K. Shildt, by and through
their attorney, Mark W. Allshouse, Esquire, and respectfully file the following Complaint and in
support thereof, allege as follows:
1. Plaintiffs, Leroy F. Shildt, III and Linda K. Shildt (hereinafter "Shildt") are adult
individuals having a current address of 2 East Orange Street, Mount Holly Springs, Cumberland
County, Pennsylvania 17065.
2. Defendants, James H. Slyder and Mary C. Slyder (hereinafter "Slyder") are adult
individuals having a current address of 429 Chestnut Street, Mount Holly Springs, Cumberland
County, Pennsylvania 17065.
3. Defendants, Emmanuel Papamarkakis and Jessica Papamarkakis (hereinafter
"Papamarkakis") are adult individuals having a current address of l0A East Orange Street,
Mount Holly Springs, Cumberland County, Pennsylvania 17065.
4. Plaintiffs are owners of certain real property located at the afore-mentioned
address and known as tax parcel identification number 23-32-2336-091 as recorded in Deed
Book 27 Page 0133, containing approximately 1.14 more or less. A true and correct copy of
Plaintiffs' Deed is attached hereto and made a part hereof marked as Exhibit "A".
5. Defendants Slyder are the owners of certain real properties to the east and
adjacent to the Shildt property, having a common boundary with Shildt and identified as original
tax parcel identification number 23-32-2336-092 as subdivided and recorded in Plan Book 92,
Page 23 and known as Lots 1-6 on said Plan. A true and correct copy of the pertinent portion of
Defendants' Subdivision Plan is attached hereto and made a part hereof marked as Exhibit "B"
for reference.
6. Defendants Papamarkakis are the owners of certain real property located at the
afore-mentioned address which adjoins the Shildt property at the southeast corner and the Slyder
property at the southwest corner and along its southern border and is known as tax parcel
identification number 23-32-2336-093 and known as Lot 7 on Exhibit "B".
7. Since about 1911, a sixteen (16) foot wide unopened alley has existed along the
southern border of the Slyder property and northern border of the Papamarkakis property
extending from Orange Street to the southeastern corner and along the southern boundary of the
Shildt property. It is depicted on Exhibit "B" between Lots 6 and 7.
8. The Borough of Mount Holly Springs abandoned any claim to the alley and
executed Quit Claim Deeds memorializing the respective ownership in fee of one-half of the 16
foot wide unopened alley each, to Slyder and Papamarkakis, the adjoining property owners on
each side of the alley.
2
9. Shildt has continuously and regularly used the unopened alley extending from
Orange Street to the southeast corner and along the southern border of his property since his
purchase of the property in 1977 and for a period in excess of twenty-one (21) years.
10. Since receiving fee ownership of the alley, Slyder and Papamarkakis both have
refused and failed to permit Shildt from continued use of the alley by both verbal statement and
physical obstruction.
1. Shildt v. Slvder
11. Paragraphs 1 through 10 are hereby incorporated by reference as though full set
forth herein.
12. Shildt has maintained adverse, open, continuous and uninterrupted use of the 16
foot unopened alley extending from Orange Street to the southeast corner and along the southern
border of his property for a period in excess of 21 years.
13. Shildt's use of the alley has been without license or permission.
14. Shildt has used the alley to access the rear of his property which is at a different
elevation than the front northern border of his property.
15. Among other things, Shildt has used the property for delivery of construction
materials for building of patios, additions to the home and accessory storage buildings and
enclosure for oil tank, landscaping materials, access for mowing equipment, brush removal, etc.
16. Shildt has maintained and improved the cartway along the easement by removing
limbs or other debris falling onto the easement and placing stone and gravel in and along the
cartway.
17. Shildt's use of the easement is not inconsistent with any other property owners'
rights.
18. The easement existed at the time of purchase of the property of Slyder, with signs
of tire indentations in the grass which were readily visible to any purchaser.
19. It is believed, and therefore, averred that Slyder was aware of the easement at the
time of purchase of the property.
20. The easement does not constitute unenclosed woodlands.
21. Shildt used all 16 feet of the easement at various times due to the width of
construction and delivery vehicles entering and exiting through the easement.
22. As a result, Shildt has obtained a legal prescriptive easement and right to
continued use of the 16 foot unopened paper alley, eight (8) feet of which crosses over the Slyder
property.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Slyder and enter an Order confirming Shildt's right to
continued use of 8 feet of the easement located on the Slyder property.
U. Shildt v. Panamarkakis
23. Paragraphs 1 through 22 are hereby incorporated by reference as though full set
forth herein.
24. Shildt has maintained adverse, open, continuous and uninterrupted use of the 16
foot unopened alley extending from Orange Street to the southeast corner and along the southern
border of his property for a period in excess of 21 years.
25. Shildt's use of the alley has been without license or permission.
26. Shildt has used the alley to access the rear of his property which is at a different
elevation than the front northern border of his property.
4
27. Among other things, Shildt has used the property for delivery of construction
materials for building of patios, additions to the home and accessory storage buildings and
enclosure for oil tank, landscaping materials, access for mowing equipment, brush removal, etc.
28. Shildt has maintained and improved the cartway along the easement by removing
limbs or other debris falling onto the easement and placing stone and gravel in and along the
cartway.
29. Shildt's use of the easement is not inconsistent with any other property owners'
rights.
30. The easement existed at the time of purchase of the property of Papamarkakis,
with signs of tire indentations in the grass which were readily visible to any purchaser.
31. It is believed, and therefore, averred that Papamarkakis was aware of the
easement at the time of purchase of the property.
32. The easement does not constitute unenclosed woodlands.
33. Shildt used all 16 feet of the easement at various times due to the width of
construction and delivery vehicles entering and exiting through the easement.
34. As a result, Shildt has obtained a legal prescriptive easement and right to
continued use of the 16 foot unopened paper alley, eight (8) feet of which crosses over the
Papamarkakis property.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Papamarkakis and enter an Order confirming Shildt's
right to continued use of 8 feet of the easement located on the Papamarkakis property.
III. Shildt v. Slyder
Declaratory Relief/Reauest for Iniunction
35. Paragraphs 1 through 34 are hereby incorporated by reference as though full set
forth herein.
36. Despite notice by Shildt to Slyder of his right of use, Slyder has undertaken
intentional steps to block Shildt's access and use of the easement.
37. Specifically, Slyder has done the following:
a. Placed large equipment within the easement on numerous occasions
b. Dug trenches across the easement left open for approximately six (6) days
c. Placed large piles of stone in the center of the easement for a period in
excess of twenty (20) days
38. Slyder's actions have been undertaken vexatiously and in bad faith in a deliberate
attempt to prevent Plaintiffs' legal use of the easement and even occurred during attempted
negotiations to resolve this dispute.
39. Slyder's actions have occurred despite prior acknowledgment on public record
during his land development and subdivision approval that he had no intention of blocking or
interfering with said easement.
40. Plaintiff is requesting a declaratory judgment and Order enjoining Slyder from
further blocking or obstructing Plaintiffs' use of the easement.
41. Plaintiff is further seeking punitive damages as a result of Slyder's vexatious and
bad faith conduct in an amount to be determined, but which shall include costs and attorney's
fees expended in bringing this action to enforce Shildt's legal rights.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Slyder enjoining further action to block or prevent
Plaintiffs' continued use of the easement together with punitive damages in an amount not less
than actual costs and attorney's fees.
6
IV. Shildt v. Papamarkakis
Declaratory Relief/Request for Iniunction
42. Paragraphs 1 through 41 are hereby incorporated by reference as though full set
forth herein.
43. Despite notice by Shildt to Papamarkakis of his right of use, Papamarkakis has
undertaken intentional steps to block Shildt's access and use of the easement.
44. Specifically, Papamarkakis has done the following:
a. Placed vehicles in the easement on more than one occasion
b. Threatened by verbal abuse Plaintiff when legally using the easement
45. Papamarkakis' actions have been undertaken vexatiously and in bad faith in a
deliberate attempt to prevent Plaintiffs' legal use of the easement.
46. Plaintiff is requesting a declaratory judgment and Order enjoining Papamarkakis
from further blocking or interfering with Plaintiffs' use of the easement.
47. Plaintiff is further seeking punitive damages as a result of Papamarkakis'
vexatious and bad faith conduct in an amount to be determined.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Papamarkakis enjoining further action to block or
prevent Plaintiffs' continued use of the easement together with punitive damages in an amount
not less than actual costs and attorney's fees.
V. Shildt v. Slyder
Trespass and Conversion
48. Paragraphs 1 through 47 are hereby incorporated by reference as though full set
forth herein.
49. On or about November 24, 2007, Slyder did enter and trespass upon Shildt
property and did cut down and remove a large sycamore tree having a height of over forty (40)
feet and a diameter of over forty-five (45) inches at the stump.
50. Slyder undertook this action despite being notified immediately prior thereto that
the tree was not located on any portion of the Slyder property.
51. Thereafter, despite warning of possible legal action for damages, Slyder cut the
tree and removed all wood.
52. As a result of the actions, Slyder has illegally cut a large tree from the Shildt
property and converted the value thereof for Defendants' personal benefit.
53. The large tree served as screening between the Shildt property and the newly-
constructed townhouses on both the Slyder and Papamarkakis property.
54. As a result of the tree cutting, a large, open, unscreened gap exists in the
previously screened boundary line between the properties.
55. Shildt has suffered damages by both loss of the aesthetic beauty and value of the
tree.
56. As a result of his actions, Slyder is liable to Shildt for conversion and trespass.
57. Slyder's actions were taken in bad faith, having been told minutes before cutting
the tree that it was not on his property.
58. In order to determine the boundary, Shildt has had a survey performed which
specifically depicts the location of the tree being completely on the Shildt property. A true and
correct copy of the survey is attached hereto and made a part hereof marked as Exhibit "C".
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Slyder in an amount equal to the value of the tree and
replacement screening, not in excess of Fifteen Thousand and 00/100 Dollars ($15,000) with
interest and other such relief as the court deems fair and just.
VI. Shildt v. Slyder
uiet Title
59. Paragraphs 1 through 58 are hereby incorporated by reference as though full set
forth herein.
60. During performance of the survey to determine the specific location of the tree cut
by Slyder, it was determined by the surveyor that a small sliver of property exists along the
Slyder and Shildt boundary line which is not contained in the Deeds of either individual.
61. Shildt is in possession of the property and has continually used and maintained
the property as his own, which consists of a tree line running from the Shildt access drive to the
southeast corner of the Shildt property and the southwest corner of the Slyder property.
62. The survey attached hereto as Exhibit "C" depicts this unclaimed sliver of land
with crosshatched marks and indicates it contains approximately five hundred ninety-six (596)
square feet. A true and correct copy of the description is attached hereto and made a part hereof
marked as Exhibit "D".
63. Neither Slyder nor his predecessors have made any claim to this property.
64. Slyder has previously depicted the specific property to which he claims ownership
on various subdivision and land development maps submitted to the Borough of Mount Holly
Springs and recorded in the Cumberland County Recorder of Deeds Office as part of his
subdivision and land development plans for the townhouse currently under construction on
Orange Street, Mt. Holly Springs, Pennsylvania.
9
65. A review of each of these surveys, plans and diagrams indicates that Slyder has
made no claim to the property in question.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter an Order in
favor of Plaintiffs and against Defendant Slyder thereby Quieting Title in the name of Shildt.
VII. Shildt v. Slyder
Adverse Possession
66. Paragraphs 1 through 65 are hereby incorporated by reference as though full set
forth herein.
67. Shildt has adversely, openly, notoriously and continuously utilized the property
for a period on excess of 21 years and, at the very least, maintains prescriptive easement for
continued use of the unclaimed property as described in Count VI to maintain the buffer zone
and tree line.
68. Shildt's use has been without license or permission.
69. Shildt's use has not been inconsistent with any other property owner's rights.
70. The property does not constitute unenclosed woodlands.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter an Order in
favor of Plaintiffs and against Defendant Slyder confirming adverse possession to Shildt.
Respectfully submitted,
Date:
I:-Att Allshouse, Esquir
ID # # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
10
Exhibit "A"
03/25/2008 17:45 7172490026
AA ABSTRACT
PAGE 03/24
Ne, 636 IsEr-SMI'LE DEED-T"Soirriter
\Sr day of ?¢c-¢z Aatz. to the year of our Lard Gato
rhoasand Nine flandmd and \?^\?
RBtWerll Paul L. Sheaffer and Lois S. Sheaffer. his wife, of Mount Holly
Springs, Cumberland County, Pennsylvania, Grantors, parties of the first part,
A
N
D ,
Leroy r. Shildt, III, and Linda K, Shildt, his +tifer of Mount Holly Springs,
Cumberland County, Pennsylvania, Grantees, parties
of the seeond part, ltllPBal'ZIt TAat the aatdpor! ies of Ike first part, far and its coasiderolion
of the seem of Thirty-six Thousand ($36,000.]0)
Ualhirm, tairfol mtonry of the Us fled Stales of Aintrita, well and truly paid by she said parties of the
.(,nand part to tha maid part ies of Ike first part, at and before the totaling and delircry of these
prrsrntnr the raee;pt wherraf in hereby aeknowitdgrd,
granted, bargained, sold, atieurd, enfeaffed, released, coureyed and confirmed and by these premento du
grant, bergain, nett, stirs, rnfrnff, release. roacay, and cnafirre unto the sai,! parties of
the arcond part their Writ and ammigoem,
All that certain lot of land lying south of Mill Street on the eastern side of
Mountain Creek in the Borough of M:. Holly Springs, Cumberland County, Pennsylvania,
bounded and described as fallowat
BEGIDMING at a point in the center of said Mountain Crook, said point being one
hundred eighteen and three-tentha (118.3) feet from the southeast abutment of the
bridge carrying Mill street over said Creek; thence by land of the Borough of
tiount [folly S¢ringa or a gall .1,sacciation, south eighty-four (94) degrees forty-
five (45) minutes east, one h,mdred fifty-seven and two-tenths (157.2) feet to a
stake; thenoe by lands now or formerly of Charles Pef£er, south thirty-aeven (37)
degrees fifteen (15) minutetr east, two hundred one and oigbt-tenths (201.8) feet
to a post; thence by lands now or formerly of Millicent Gitaniller, south fifty-
five (55) degrees West, tw3 hundred fifty-five (255) feet-to a point in the center
of mountain Creek; thence by the center of Mountain Creek, north twelve (12) degmos
fifteen (15) minutes west, three hundred twenty-five (325) feet to a point, the
rLACE Oc BEGIK41NG.
CONTAINING one and fourteen hundredths (1.14) acXes, more or less.
DODKO 27 PACE 133
03!25/2008 17:45 7172490026 AA ABSTRACT PAGE 04/24
BE= the same premises which were conveyed unto the gxttntors herein by. deed of
David S. McrAxland dated May 24, 1961 and recorded in the Office of the eecorder
of Deed.; in and for Cumberland County in Decd Book Volume , Page
AND BEING the same promises which were conveyed by Theodore A. Tiehy and Annis Lee
Tichy, his wife, by Quit Claim Deed on the 25th of ,say, 1961 and recorded in the
Office of the Recorder of Deeds in Clmtberland County in Deed Book 9, Volume 20,
Page 1081, resolving a conflict between the said nchy's and Sheaffer's.
COMh'.ONWEA(Tli CF PENNISYIVANIA
ti DEPARTMENT OF REVENUE n
n 71NSFia DtC-7.71 r1.1(3eir 3 6 ?. Q 0 -'
TAX
o P.B.111h2
i OgPthrr with ail and singular, the tenements, heredildments and appurtenances to the same
belonging or in anywiso appertaining, and the rreersian and rrrrrRion., remahrder and renrdindrrs,
rents, issues, and profits thereof; e%tib silo all the estate, right, title, interest, property, claim
and demand Whatsoctxr, both in laic and equity, of Or will Parries of the first part, of, in, to
or not of the said premises, and crrry part and parr( thr-reof
U Platte ad Xis 1ID1D the said premi.,rs, with all and singdlar ilia appurtenancet, unto,
Ike said putt ies of the Recond part, their krirt and asxigns, to and far the only proper
anc and behof f of the said part ies of the second part, their hcira and assigns
forccer,
Ad TUV SAID Grantors, their
hcira, cereutors anti administrators, do -by shove presents, corenant, yrant anti agrcr, to and
with the said parties of the second part, their heirs and
assigns, that 11164aid Grantors, their '
hcira all and singular the hereditameals and premiscl, herrinaboce dcscrihrd andgrantcd or mentioned,
and intended so to Of, With appurtenances, unto Me said part ies of the second part, their
heirs and assigns, against the Fairs part ies of the first lsrrt and their k,P-n rtnd ngaiust all
and every other person or persons whomsoever, lmofully eldinr6rg or to claim the same or any part
thereof, shall and will, by those presents, S?'A1.12AN7' AXI) 6'V1L
EYLR DEFEND
? tt a.YtttaJs Bljrreaf the said part ies of tho first part halve
hereunto set their hands and snot s the day and year first above written.
J O
?l . ................... (SEAL,
Pau1?L. Sheaf£er
........... .......... .................................. (SEAL)
BigneJ, 8c1da1 Rod Deliverers ?'•lrsA. .... (SEAL)
in the ace of w4 S. Sheaffer
.................. ................... :................. ................. IRf Alrl
................_..............,............ (SEAL)
k?'?«r .............................
........................................................................ (SEAL)
tf/
CAJ?4ao (HEAL)
Cumb. Co.. Pa. Sahaol Dist. Cumb. Co., a .................._..... ............................................... (SEAL.)
.........................
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c..ml. Ca bill. Cat. Alt. 9J °'^s:'Ce: '6 h. ?cet.. ,;r5 eaax4 27 FACE .34
03/25/2008 17:45 7172490026 AA ABSTRACT PAGE 05/24
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CO[1NTY OF
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t I hereby artily that the Precise Residence of the [h-antee,in the within Leed, it•u.....u::°..;.....
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for the County f Deed Book .......... Q...... Vol.
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itior Iy Hand and Seal of Office, this ................................. ?..?.... d of
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600 027 PAGE 135
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Exhibit "B"
02/19/2008 19:03 FAX 7174860165 F 001
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. i MN'IDS
R 543.
?Q}4 r..- _ • • 24-SS
- is- B OC K i OTAL ARE,
??N !? }+, • dFF STREET PARKINS SHALE
IOOYEAR FLPDD 546 4P PAMPSM 5AMTM SEWER
MS-TING SANITARY SEWER L
77yy, a f / ?'i +`?' • ;. . EXISTING PUBLIC WATER SU
Sly, G\ S? r
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i c)npERTY AN-l' S IT DATA 1. ZONE,-A-11 FLOOD PLAIN(Overlay)
2- TOTAL AREAP 0• SISS Acre: 45,B52.45 ?-M--- ??
3. PUBLIC SEWER
4• PUBLIC WATER
ZONING DATA
I•_ ZONE: ?+FLOW PLAIN(Overlay) -71
PRO S? 01ONMUMON- 100 YEAR FLOOD
q.THfIEE =HOUSES (ForrSingle
B.PER TDWNHDUSE ? `fs
1;!JZA) S•IM FirAtdE WNSTRUCTioN
D•EACH UNIT, A 'MINIMUM 16'FRQNT, 32• DEPTH
r-TW PARKING SPACES PER UNIT
ZONING RMIREMENT(PER TOWNHOU30 Pa0Pa5FQ
^. = L.QT AREA Mtt,IMUm 2(6 o s F Lrafi 2. 19I7•27 '6f: tat 5. 2 D3Q 12?; got 8= 2, 100 sf
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4. ,, NT ?Rp 2S 25
7- LU.MQFET
ERAGE: 9U? _ __?4, 2 -PAR 0 5.3 A? 9?25F? 4
Exhibit "C"
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Exhibit "D"
LEGAL DESCRIPTION
TRACT ADVERSELY POSSESSED
BY LEROY F. SHILDT, III and LINDA K. SHILDT
ALL that certain tract or parcel of land situate in the Borough of Mt. Holly
springs, County of Cumberland, Commonwealth of Pennsylvania, bounded and
described as follows:
BEGINNING at a steel rebar pin found along the south side of Mill Street
as it existed prior to its relocation, said pin being 96 feet more or less west of the
westerly line of Orange Street; THENCE along lands now or formerly of James
H. and Mary C. Slyder, South 44 degrees, 56 minutes, 47 seconds East crossing
an unopened 16 foot wide alley, a distance of 200.74 feet to a steel rebar pin;
thence along lands of Leroy F. III and Linda K. Shildt, North 46 degrees, 37
minutes, 55 seconds West, a distance of 202.03 feet to a point in the southerly
line of the former Mill Street; thence along the southerly line of the former Mill
Street, North 56 degrees, 25 minutes, 37 seconds East, a distance of 6.06 feet to
a steel rebar pin, the point of Beginning
BEING a triangular shaped tract of land lying between the title lines of lands of
Slyder and Shildt.
VERIFICATION
We, Leroy F. Shildt, III and Linda K. Shildt, verify that the statements in the foregoing
document are true and correct to the best of our knowledge, information and belief under
penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities.
Date: &/'?/o r< ?f A ?L W
Leroy F. Sh' t, III
Date: d r „ r
Linda K. Shildt
Q ?
W
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V
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt,
husband and wife,
Plaintiffs
V.
James H. Slyder and Mary C. Slyder,
husband and wife,
and
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. ?O 3?3 CIVIL TERM
Emmanuel Papamarkakis and JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, CIVIL ACTION -LAW
Defendants
PRAECIPE FOR LIS PENDENS
TO THE PROTHONOTARY:
Please index the above-captioned action as a lis pendens against the following real
property:
Tax parcel number 23-32-2336-092
Plan Book 92, Page 23
Lots 1-6
Mount Holly Springs, PA 17065
I hereby certify that this action affects title to or other interest to a portion of the above-
described property.
Respectfully submitted,
Date: l0%10?
Vark W. Allshouse, squire
Attorney ID # 7801
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
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C?w
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 5824006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt,
husband and wife,
Plaintiffs
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
James H. Slyder and Mary C. Slyder, NO. CIVIL TERM
husband and wife,
and
Emmanuel Papamarkakis and JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, CIVIL ACTION -LAW
Defendants
ACCEPTANCE OF SERVICE
I, William S. Daniels, Esquire, accept service of the Complaint on behalf of Defendants,
James H. Slyder and Mary C. Slyder regarding the above-captioned action.
Date:
William S. Dance s, Esquire
HUMER & DANIELS
205 Farmers Trust Building
One West High Street
Carlisle, PA 17013
Attorney for Defendants Slyder
C7 ? D
C o°o -n
Ei.
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c?3
SHERIFF'S RETURN - REGULAR
CASE NO: 2008-03439 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SHILDT LEROY F III ET AL
VS
SLYDER JAMES H ET AL
DENNIS FRY , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
-T mTRM T,Tr'A VT L" 1-?MMT T TATV T. the
DEFENDANT , at 1256:00 HOURS, on the
at 10A EAST ORANGE STREET
MT HOLLY SPRINGS, PA 17065
So Answers:
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 7.00
Postage •59
Surcharge 10.00
.00
4/13/0S 3 5 .S9
Sworn and Subscibed to
before me this day
of
by handing to
R. Thomas Kline
06/09/2008
CHRISTIAN LAWYER SOLUTIONS
By:
Dep ty Sheriff
A. D.
7th day of June , 2008
d-4 . i I
CASE NO: 2008-03439 P
SHERIFF'S RETURN - REGULAR
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SHILDT LEROY F III ET AL
VS
SLYDER JAMES H ET AL
DENNIS FRY
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
the
DEFENDANT , at 1256:00 HOURS, on the 7th day of June 2008
at 10A EAST ORANGE STREET
MT HOLLY SPRINGS, PA 17065 by handing to
EMMANUEL PAPAMARKAKIS
ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing
Service 6.00
.00 _
Affidavit
Surcharge
00
10.00
R. Thomas ,
Kline
&Ij3I?g 00
16.00
06/09/2008
CHRISTIAN LAWYER SOLUTIONS
Sworn and Subscibed to By:
before me this day D puty She f
of A.D.
r
LEROY F. SHILDT, III and LINDA K. SHILDT, IN THE COURT OF COMMON
husband and wife, PLEAS
Plaintiffs CUMBERLAND COUNTY,
PENNSYLVANIA
V.
JAMES H. SLYDER and MARY C. SLYDER, NO. 08-3439 CIVIL TERM
husband and wife,
and
EMMANUEL PAPAMARKAKIS and JURY TRIAL DEMANDED
JESSICA PAPAMARKAKIS, husband and wife, CIVIL ACTION - LAW
Defendants
NOTICE TO PLEAD
TO: Leroy F. Shildt, III and Linda K. Shildt, Plaintiffs
2 East Orange Street
Mount Holly Springs, PA 17065
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
Defendants' Answer and New Matter to Plaintiffs' Complaint 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 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 AFFORT ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
Date: p P
William S. Daniels, Esquire
Supreme Court No. 27735
1 West High St., Ste. 205
Carlisle, PA 17013
Tel. 717-243-3831
Attorney for Defendants
-11
LEROY F. SHILDT, III and LINDA K. SHILDT,
husband and wife,
Plaintiffs
V.
JAMES H. SLYDER and MARY C. SLYDER,
husband and wife,
and
EMMANUEL PAPAMARKAKIS and
JESSICA PAPAMARKAKIS, husband and wife,
Defendants
IN THE COURT OF COMMON
PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 08-3439 CIVIL TERM
JURY TRIAL DEMANDED
CIVIL ACTION -LAW
DEFENDANTS' ANSWER WITH NEW MATTER
AND NOW, come Defendants, James H. Slyder and Mary C. Slyder, and
Emmanuel Papamarkakis and Jessica Papamarkakis, by and through their attorney,
William S. Daniels, Esquire, and respectfully file the following Answer with New Matter
and in support thereof, allege as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted, as corrected to read Deed Book 27 "O" 133, containing
approximately 1.14 acres, more or less.
5. Admitted in part. In fact, the pertinent portion of Defendant's Subdivision
Plan attached hereto and made a part hereof by reference is marked Defendants' Exhibit
"A," vice Plaintiffs' Exhibit "B."
6. Admitted in part. In fact, Defendant Papamarkakis' property adjoins the
Shildt property at Shildt's southeasterly corner, and the Slyder property along Slyder's
southerly boundary, and is known as "Lot 7 and Parcel B, PB 92 Pg 623."
7. Denied. On the contrary, a stub of an alley was laid out on an unrecorded
Plan of Town Lots for Mount Holly Springs in the 19th century. Its description was
carried forward as a boundary marker on subsequent deeds of conveyance, depicted as
being sixteen (16) feet in width, and a segment of approximately 100 feet in length
running between adjacent property to the west (not a part of the Plan of Town Lots) and
Orange Street to the east. Having never been accepted by the Borough of Mount Holly
Springs, this "paper alley" technically reverted to ownership in fee between its adjoiners
(to the north and to the south) after 21 years. Its original configuration is shown on
Defendants' Exhibit "A."
8. Denied. On the contrary, Defendants' Slyder and Papamarkakis formalized
their respective acquisitions in fee of the said 16 feet wide "paper alley" by exchanging
and recording quit claim deeds in 2007.
9. Denied, as after reasonable investigation Defendants' are without knowledge
or information sufficient to form a belief as to the truth of this averment.
10. Denied. Defendants' Slyder and Papamarkakis have acted independently
toward their respective portions of the former "paper alley." Defendant Slyder has
caused the subject land to be obstructed temporarily from time to time by the exigencies
of construction work, but has never orally refused Plaintiffs' crossing; Defendant
Papamarkarkis has deemed that Plaintiff has yet no legal interest in his land, and
considers Plaintiff a trespasser pending valid authority.
Count I. Shildt v Sl der
11. Paragraphs 1 through 10 are hereby incorporated by reference as though fully
set forth herein.
12. Denied, as after reasonable investigation, Defendants are without knowledge
or information sufficient to form a belief as to the truth of this averment.
13. Admitted in part, denied in part. It is admitted only that Plaintiffs' use of
Defendants' land has been without license or permission. All of the remaining aspects of
this averment are denied in that the "paper alley" ceased to exist well before Plaintiff
purchased his residential real estate.
14. Admitted in part, denied in part. It is admitted only that Plaintiffs' access to
the rear of his property across Defendants' land is a convenience to Plaintiff. All of the
remaining aspects and implications of this averment are denied in the Plaintiffs' frontage
includes reasonably level access to his rear yard via his driveway and along the west side
of his residence; there is a berm of about 30 inches in height across the easterly side of
his frontage.
15. Denied, as after reasonable investigation Defendants are without knowledge
or information sufficient to form a belief as to the truth of this averment.
16. Admitted in part, denied in part. It is admitted only that Plaintiff spread a
token amount of stone and gravel along the trace of the former "paper alley." All of the
remaining aspects of this averment are denied in that there is no established easement or
cartway, and as after reasonable investigation Defendants are without knowledge or
information sufficient to form a belief as to the truth of this averment.
17. Denied. To the contrary, the expressed purpose of usage by Plaintiffs across
Defendants' land is intrusive to the owners' rights to quiet use and enjoyment of the side
yards of their residential dwellings.
18. Denied. To the contrary, no established easement existed at the time of
Defendant Slyder's purchase of the property, and no signs or indications of travel or
traffic across the then vacant land were apparent to Seller or Purchaser.
19. Denied. To the contrary, Defendant Slyder was aware of the underground
sewer line and that no utility easement existed across the "paper alley."
20. Admitted in part, denied in part. It is admitted only that the land in question
does not constitute unenclosed woodlands. All other aspects of this averment are denied.
21. Denied, as after reasonable investigation Defendants are without knowledge
or information sufficient to form a belief as to the truth of this averment. In fact, at time
of Defendant Slyder's purchase, the subject segment of land was overgrown with brunt
and small trees through which only a small vehicle might pass. Defendants are aware of
no motor vehicles in urban use which are 16 feet in width.
22. Denied. Plaintiff is a prescriptive claimant only. No prescriptive easement
has yet been established, created, obtained or acquired as a result of Plaintiffs' averments
presented within. In fact, neither municipal nor federal aerial photograph available reveal
any indications of usage beyond the evidence of the installation of the sewer line. Canvas
of surrounding neighbors, postman, and previous owner disclose no awareness of
Plaintiffs alleged activities before Defendant Slyders' acquisition of this land. Subject
real estate was in the family of the immediate previous owner for over 60 years. The
Seller to Defendant Slyder tended to the management of his rooming house at 8 Orange
Street daily, and was responsible for weed abatement over the two tracts sold to
Defendant Slyder as well as the "paper alley." He was never aware of an adjacent
owner's use of this essentially vacant land.
WHEREFORE, answering Defendants request the Court to enter judgment in
their favor and against Plaintiffs, dismissing Plaintiffs' Complaint with prejudice, and
awarding costs and counsel fees.
Count II. Shildt v Papamarkakis
23. Paragraphs I through 22 are hereby incorporated by reference as though fully
set forth herein.
24. Denied, as after reasonable investigation, Defendants are without knowledge
or information sufficient to form a belief as to the truth of this averment.
25. Admitted in part, denied in part. It is admitted only that Plaintiffs' use of
Defendants' land has been without license or permission. All of the remaining aspects of
this averment are denied in that the "paper alley" ceased to exist well before Plaintiff
purchased his residential real estate.
26. Admitted in part, denied in part. It is admitted only that Plaintiffs' access to
the rear of his property across Defendants' land is a convenience to Plaintiff. All of the
remaining aspects and implications of this averment are denied in the Plaintiffs' frontage
includes reasonably level access to his rear yard via his driveway and along the west side
of his residence; there is a berm of about 30 inches in height across the easterly side of
his frontage.
27. Denied, as after reasonable investigation Defendants are without knowledge
or information sufficient to form a belief as to the truth of this averment.
28. Admitted in part, denied in part. It is admitted only that Plaintiff spread a
token amount of stone and gravel along the trace of the former "paper alley." All of the
remaining aspects of this averment are denied in that there is no established easement or
cartway, and as after reasonable investigation Defendants are without knowledge or
information sufficient to form a belief as to the truth of this averment.
29. Denied. To the contrary, the expressed purpose of usage by Plaintiffs across
Defendants' land is intrusive to the owners' rights to quiet use and enjoyment of the side
yards of their residential dwellings.
30. Denied. To the contrary, no established easement existed at the time of
Defendant Slyder's purchase of the property, and no signs or indications of travel or
traffic across the then vacant land were apparent to Seller or Purchaser.
31. Denied. To the contrary, Defendant Slyder was aware of the underground
sewer line and that no utility easement existed across the "paper alley."
32. Admitted in part, denied in part. It is admitted only that the land in question
does not constitute unenclosed woodlands. All other aspects of this averment are denied.
33. Denied, as after reasonable investigation Defendants are without knowledge
or information sufficient to form a belief as to the truth of this averment. In fact, at time
of Defendant Slyder's purchase, the subject segment of land was overgrown with brust
and small trees through which only a small vehicle might pass. Defendants are aware of
no motor vehicles in urban use which are 16 feet in width.
34. Denied. Plaintiff is a prescriptive claimant only. No prescriptive easement
has yet been established, created, obtained or acquired as a result of Plaintiffs' averments
presented within. In fact, neither municipal nor federal aerial photograph available reveal
any indications of usage beyond the evidence of the installation of the sewer line. Canvas
of surrounding neighbors, postman, and previous owner disclose no awareness of
Plaintiffs alleged activities before Defendant Slyders' acquisition of this land. Subject
real estate was in the family of the immediate previous owner for over 60 years. The
Seller to Defendant Slyder tended to the management of his rooming house at 8 Orange
Street daily, and was responsible for weed abatement over the two tracts sold to
Defendant Slyder as well as the "paper alley." He was never aware of an adjacent
owner's use of this essentially vacant land.
WHEREFORE, answering Defendants request the Honorable Court to enter
judgment in their favor and against Plaintiffs, dismissing Plaintiffs' Complaint with
prejudice, and awarding costs and counsel fees.
Count III. Shildt v. Slyder
Declaratory Relief/Request for Injunction
35. Paragraphs 1 through 34 are hereby incorporated by reference as though
fully set forth herein.
36. Denied. On the contrary, Plaintiff has no right to cross Defendant Slyder's
land. There has been no established easement in favor of Plaintiff. Any obstacles due to
Defendant Slyder's activities have been the result of the exigencies of staging for
ongoing construction work vice interference with Plaintiff's intrusions.
37. Admitted in part, denied in part as related to Paragraph 36 above. It is
admitted only that large equipment has been used on site for construction purposes;
trenches have been dug for emplacing underground utility lines, and trenches left open
temporarily for required inspection purposes; and piles of materials have been positioned
on site for convenience in construction work. All remaining aspects of this averment are
denied for the reasons explained within.
38. Denied. On the contrary, Defendant Slyder's activities have been on the line
of business to achieve a higher and better use of his real estate. Plaintiff has not attained
any legal use of any easement over Defendant Slyder's land, and Plaintiff rejected
Defendant Slyder's offer to furnish reasonable accommodation at no expense to Plaintiff
in the alternative to claimant's position.
39. Admitted in part, denied in part. It is admitted only that in the initial
processing for subdivision approval, Defendant Slyder acknowledged in public forum
that he had no present intention of blocking the "paper alley." Underlying this intention
at that time and his subsequent performance in the establishment of a formal utility
easement by Agreement with the municipality forever ensured clear thoroughfare over
the underground sewer line to enable remedy of contingencies. Subsequent revisions of
the subdivision plan which have been duly approved included some use of the "paper
alley" for side yard setback allowances. All remaining aspects of this averment are
denied for the reasons previously set forth.
40. Denied that Plaintiff has yet obtained any prescriptive interest in Defendant
Slyder's land as a claimant.
41. Denied. The allegations contained in this paragraph are presumptive
conclusions which are unfounded in fact and to which no response is required under
Pennsylvania Rules of Civil Procedure, and the same are therefore denied.
WHEREFORE Defendant requests this Honorable Court to enter judgment in
favor of Defendant Slyder and against Plaintiff.
11
Count IV. Shildt v. Papamarkakis
Declaratory Relief/Request for Injunction
42. Paragraphs 1 through 41 are hereby incorporated by reference as though fully
set forth herein.
43. Admitted in part, denied in part. It is admitted only that Plaintiff has asserted
his right to use Defendant Papamarkakis' land, and that Defendant Papamarkakis has
indeed exercised his ownership rights to quiet use and enjoyment in preference to
acceding to Plaintiff. All other aspects of this averment as to Plaintiff's right of use are
denied.
44. Admitted in part, denied in part. It is admitted only that defendant
Papamarkakis has parked his car in his yard. All other aspects of this averment are
denied. On the contrary, Defendant Papamarkakis has been exposed to loud and
prolonged profane and obscene language directed toward him by Plaintiff and his family
members.
45. Denied. Plaintiff has not yet attained any legal right to use of any easement
across Defendant Papamarkakis' land. Defendant Papamarkakis' exercise of his superior
rights as owner in fee have not been vexatious or in bad faith in treating Plaintiff as a
prescriptive claimant.
46. Denied that Plaintiff has yet obtained any prescriptive interest in Defendant
Papamarkakis' land as a claimant.
47. Denied. The allegations contained in this paragraph are presumptive
conclusions which are unfounded in fact and to which no response is required under
Pennsylvania Rules of Civil Procedure, and the same are therefore denied.
WHEREFORE, Defendant requests this Honorable Court to enter judgment in
favor of Defendant Papamarkakis and against Plaintiff.
V. Shildt v. Slyder
Trespass and Conversion
48. Paragraphs 1 through 47 are hereby incorporated by reference as though
fully set forth herein.
49. Denied. On the contrary, Defendant Slyder was on his own property and
exercised his right to avoid said large tree's interference with dwellings being erected in
Defendant Slyder's pursuit of achieving higher and better use of his land as properly
approved for subdivision according to survey of public record.
50. Admitted in part, denied in part. It is admitted only that Plaintiff asserted
Plaintiff's ownership of said trees contrary to the boundary markings then properly in
place in accordance with the approved Subdivision Plan of public record, and that
Defendant Slyder proceeded to cut down and remove the tree which he deemed to be
hazardous to his project of development. It is denied that said tree was on Plaintiff's
property for the reasons explained.
51. Admitted that Plaintiff threatened legal claims against Defendant Slyder
based upon Plaintiff's assumptions, and that as was his purview, Defendant Slyder did
cut and remove said tree from premises.
52. Denied in that this assertion is an invalid assertion in its entirety. The tree
f
O
was not on Plaintiff's property; did not belong to Plaintiff; and was thus not taken down
illegally. The tree has no value as lumber, and no personal benefit other that that for
which the tree was removed has been derived by Defendant.
53. Denied. On the contrary, the height of this tree raised its canopy too high
to screen effectively the respective improvements on each adjoining property from each
other.
54. Denied. On the contrary, the only gap created by Defendant Slyder's
prudent action is the width of the trunk of the said tree, whose size prohibited competitive
growth beneath its canopy which might have served to screen the respective premises
from one another.
55. Admitted in part, denied in part. It is admitted only that Plaintiff no longer
can appreciate the beauty of this tree. It is denied that Plaintiff is entitled to any value
from the felling of a tree on Defendant's property, or that Plaintiff has sustained damages
in any way.
56. Denied. This allegation is a conclusion of law to which no responsive
pleading is required under Pennsylvania Rules of Civil Procedure, and the same are
therefore denied.
57. Denied. Defendant's actions were not in bad faith but taken for good and
sufficient cause as previously explained. Because Plaintiff asserted that the tree was on
his property does not mean that that is the case, or that Defendant's good faith belief that
it's not on Plaintiff's property give rise to bad faith for such contrary holding.
58. Admitted in part, denied in part. It is admitted only that Plaintiff engaged a
surveyor to justify Plaintiff's position after the fact. All other aspects of this averment
are denied in that Plaintiff's survey is flawed for reasons which shall be set forth
subsequently by Defendant which challenge the accuracy of said survey for the purposes
applied.
WHEREFORE, Defendant requests the Honorable Court to enter judgment in
favor of Defendant Slyder and against Plaintiff.
VI. Shildt v. Slyder
Quiet Title
59. Paragraphs I through 58 are hereby incorporated by reference as though
fully set forth herein.
60. Denied. On the contrary, the small triangular sliver depicted on Plaintiff's
Exhibit "C" is entirely within the proper legal description of corresponding land
adjoining the Plaintiff's common boundary. Said sliver depicted on Exhibit "C" resulted
from the draftsman's projecting northward a baseline along the western boundary of
Orange Street real estate determined for a previous survey from an invalid point pertinent
to Plaintiff's property. The draftsman then ran the easterly course and distance of
Plaintiff's legal description northerly from the same invalid point. Said invalid point
resulted from a compromise with the southerly adjoiners over a conflict in common
boundary line with other property of Slyder. This compromise point was a few feet
easterly of the legal description of the Defendant's approved Subdivision Plan, which
encroachment was deemed insignificant. However, as incorrectly assumed for a starting
point for Plaintiff's purposes, it is sufficient to place the felled tree within Plaintiff's
r
i
perimeter, and to create a further encroachment on defendant's land resulting in the
triangular sliver which was never possessed by Plaintiff.
61. Denied for the reasons set forth in Paragraph 60 above. In fact the tree line is
correctly partly on Plaintiff's side and partly on Defendant's side of their proper common
boundary.
62. Admitted as to the Plaintiff s survey drawing, attached as Plaintiff's Exhibit
"C," portraying what it was designed to illustrate for Plaintiff's purposes.
63. Denied. This sliver as portrayed is a part of the legal description of
Defendant's deed and its recital, and is thus legally claimed and has been possessed by
Defendant and his predecessor.
64. Admitted.
65. Denied. On the contrary, a comparison of pertinent legal descriptions, plans,
sketches, and surveys discloses that Plaintiff has no legitimate claim to the property in
question.
WHEREFORE, Defendant request the Honorable Court to enter a judgment in
favor of Defendant and against Plaintiff.
VII. Shildt v. Slyder
Adverse Possession
66. Paragraphs 1 through 65 are hereby incorporated by reference as though fully set
forth herein.
67. Denied. On the contrary said sliver of land has never been occupied by Plaintiff.
68. Admitted.
it
69. Denied. Plaintiff's use of said sliver would be a trespass on Defendants' land
defined by a most accurate and correct survey.
70. Admitted
WHEREFORE, Defendant requests the Honorable Court to enter judgment in
favor of Defendant and against Plaintiff.
NEW MATTER
71. Paragraphs 1 through 70 of Defendants' Answer are incorporated herein by
reference as if fully set forth.
72. Plaintiff's survey dated , Plaintiff's Exhibit "C," is
apparently derivative of the same surveyor's work of 2003, entitled
for
White and Blair are current owners of real estate adjacent to the west of Defendant
Slyder's initial phase of development which has been completed and sold (townhouses
known and numbered as I OA, I OB, and I OC Orange Street).
73. Subsequent to Defendant Slyder's acquisition of subject Orange Street
properties, said adjoiners initiated challenge against the Subdivision survey, vis-a-vis the
common boundary between their respective properties. In that the disparity represented
an apparently insignificant triangular sliver of land encroaching on the Slyder land by a
few feet at the base of this triangular sliver, Defendant Slyder compromised and accepted
the challenger's boundary line. The game was not worth the candle to engage in
controversy.
r
74. This compromise resulted in a short dogleg along the southerly edge of the
"paper alley" where the adjoiner's northerly boundary ended. Said indentation
eastwardly by feet is the point where Plaintiff s survey starts its projection
northerly on the course of a baseline established by alignment of random pins, not corner
pins, from south to north along the westerly edge of Orange Street Properties.
75. It is submitted that the proper, and thus superior monument relative to the
Plaintiff-Defendant Slyder common boundary is the foundation of the 1900 building
known as and numbered 8 Orange Street belonging to Defendant Slyder. Using the
center wall of this building which is along the middle of the center lot of the three lots of
the Plan of Town Lots (unrecorded), and applying the legal descriptions of the
Defendant's properties, the most accurate location of boundaries may be established on
the ground.
WHEREFORE, the Defendant requests the Honorable Court to add the foregoing
information to the factual basis for discounting Plaintiff s erroneous justification for
taking Defendant's land, and claiming Defendant's property, and for dismissal of
Plaintiff s filing of his Pendens constraint on defendant's improved land.
Respectfully submitted,
William S. Daniels
Supreme Court No. 27735
1 West High St., Ste. 205
Carlisle, PA 17013
Tel. 717-243-3831
Attorney for Defendants
VERIFICATION
We, James H. Slyder and Mary C. Slyder, verify that the statements in the
foregoing document are true and correct to the best of our knowledge, information and
belief under penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to
authorities.
Date:
Date: ? "// '0"e
J es /. Slyder,
it
1
VERIFICATION
We, Emmanuel Papamazkakis
and Jessica Papamarkakis, verify that the
statements in the foregoing document are true and co
info rrect to the best of our knowledge,
rmation and belief under penalties of 18 Pa.C.S.A. Sec
falsification to authorities. Section 4904, relating to unsworn
Date:
Emmanuel Papamaxkakis
Date:
essica Papaxnarkakis
No11y
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LEROY F. SHILDT, III and LINDA K. SHILDT, IN THE COURT OF COMMON
husband and wife, PLEAS
Plaintiffs CUMBERLAND COUNTY,
PENNSYLVANIA
V.
JAMES H. SLYDER and MARY C. SLYDER,
husband and wife,
and
EMMANUEL PAPAMARKAKIS and
JESSICA PAPAMARKAKIS, husband and wife,
Defendants
NO. 08-3439 CIVIL TERM
JURY TRIAL DEMANDED
CIVIL ACTION -LAW
ACCEPTANCE OF SERVICE
I, Mark W. Allshouse, Esquire, accept service of the Defendants' Answer and
New Matter to Plaintiffs' Complaint on behalf of Plaintiffs Leroy F. Shildt, III and Linda
K. Shildt regarding the above-captioned action.
Date:I? (??U0 MIR,
Mar W. Allshouse, Esquir
4833 Spring Road
Shermans Dale, PA 17090
Supreme Court No. 78014
Attorney for Plaintiffs
C' } ?."'a
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Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt,
husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
James H. Slyder and Mary C. Slyder,
husband and wife,
and
Emmanuel Papamarkakis and
Jessica Papamarkakis, husband and wife,
Defendants
: NO. 08-3439 CIVIL TERM
JURY TRIAL DEMANDED
CIVIL ACTION -LAW
PLAINTIFFS' REPLY TO DEFENDANTS' NEW MATTER
AND NOW, come Plaintiffs, Leroy F. Shildt, III and Linda K. Shildt, by and through
their attorney, Mark W. Allshouse, Esquire, and respectfully file this Reply to New Matter as
follows:
71. Paragraph 71 of Defendants' New Matter is a paragraph of incorporation to which
no response is necessary. In the event a response is necessary, paragraph 71 and the incorporated
paragraphs are denied.
72. Admitted in part and denied in part. It is denied that Plaintiffs' survey attached as
Plaintiffs' Exhibit "C" is a derivative of the work performed in 2003. By way of further
response, while Plaintiffs' survey was performed by the same surveyor, the survey was not
derived from a prior survey, but was an independent survey taken with independent verification
of existing markers. It is admitted that White and Blair are the owners of real estate adjacent to
the west of Defendant Slyders' initial phase of development.
73. Denied. After reasonable investigation, Plaintiffs are without specific knowledge
or belief as to the truth of the averments contained in paragraph 73 of Defendants' New Matter.
Strict proof is demanded if deemed relevant at the time of trial.
74. Denied. After reasonable investigation, Plaintiffs are without specific knowledge
or belief as to the truth of the averments contained in paragraph 74 of Defendants' New Matter.
By way of further response, the number of feet of projection has not been provided in the New
Matter and, therefore, there is no response available to this averment.
75. Denied. Paragraph 75 is a conclusion of law to which no response is necessary.
By way of further response, Plaintiffs are without knowledge or belief as to the truth of the
averment contained in paragraph 75 of Defendants' New Matter. Strict proof is demanded if
deemed relevant at the time of trial.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendants Slyder and Papamarkakis.
Respectfully submitted,
Date: ?= -
Mark W. Allshousesquii
orney I.D. # 780f4
4 33 Spring Road
S ermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
VERIFICATION
We, Leroy F. Shildt, III and Linda K. Shildt, verify that the statements in the foregoing
document are true and correct to the best of our knowledge, information and belief under
penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities.
Date: `71 !
Leroy F. dt, III
Date: ZZ,
/ inda K. Shildt
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 5824006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt, IN THE COURT OF COMMON PLEAS
husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
James H. Slyder and Mary C. Slyder, NO. 08-3439 CIVIL TERM
husband and wife,
and
Emmanuel Papamarkakis and JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, CIVIL ACTION - LAW
Defendants
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been duly served upon the
following, by depositing a copy of the same in the United States Mail, first-class, postage
prepaid, as follows:
William S. Daniels, Esquire
HUMER & DANIELS
205 Farmers Trust Building
One West High Street
Carlisle, PA 17013
Date: 7 o??'O
ark . Allshouse, squire
ttomey I.D. # 780 4
833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
c_ . T -s^,
Uri ? c
.13
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt, : IN THE COURT OF COMMON PLEAS
husband and wife,
Plaintiffs :CUMBERLAND COUNTY, PENNSYLVANIA
V.
James H. Slyder and Mary C. Slvder,
husband and wife,
and
Emmanuel Papamarkakis and
Jessica Papamarkakis, husband and wife,
Defendants
NO. 08-3439 CIVIL TERM
JURY TRIAL DEMANDED
CIVIL ACTION -LAW
PRAEQ TO REMOVE LIS PENDENS
TO THE PROTHONOTARY:
Kindly remove the Lis Pendens on the following real property:
Tax parcel number 23-32-2336-092
Plan Book 92, Page 23
Lots 1-6
Mount Holly Springs, PA 17065
Respectfully submitted,
Date:
rark W. Allshouse, squire
ey ID # 7 801
Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
!4
R
c. .i
-Rm
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt,
husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
James H. Slyder and Mary C. Slyder,
husband and wife,
and
: NO. 08-3439 CIVIL TERM
Emmanuel Papamarkakis and JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, CIVIL ACTION -LAW
Defendants
PRAECIPE FOR LIS PENDENS
TO THE PROTHONOTARY:
Please index the above-captioned action as a lis pendens against the following real
property:
Tax parcel number 23-32-2336-405
Plan Book 92, Page 23
Known as: 6C Orange Street
Mount Holly Springs, PA 17065
I hereby certify that this action affects title to or other interest to a portion of the above-
described property.
Respectfully submitted,
Date: 111171b g jk':??llshouse, W. AE quire
rney ID .4 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
P-
oc,
rn ;,
Mm
5
J
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°'c2
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
LU1 11 JUN 14 AM 5.72
IUMBERLAND COUNT
PENNSYLVAN1. A
r,croy r. ?iniiat, III and Linda K. Shildt,
husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
James H. Slyder and Mary C. Slyder,
husband and wife,
and
: NO. 08-3439 CIVIL TERM
Emmanuel Papamarkakis and JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, CIVIL ACTION -LAW
Defendants
MOTION FOR PRE-TRIAL CONFERENCE
AND NOW, come Plaintiffs, Leroy F. Shildt, III and Linda K. Shildt, by and through
their attorney, Mark W. Allshouse, Esquire and respectfully file the following Motion for Pre-
trial Conference:
Plaintiffs in the above-captioned matter filed a cause of action asserting the right
to prescriptive easement for a sixteen (16) foot easement running along the common boundary
line of Defendants extending eight (8) feet onto each Defendants' property.
2. Plaintiffs had previously listed the matter for trial.
3. In the interim, Defendant Papamarkakis has obtained new counsel who wishes to
conduct additional discovery on behalf of his clients.
4. Attorney Hubert Gilroy, who had previously represented both Defendants, also
indicated that he may want to perform additional discovery.
5. Plaintiffs have withdrawn their Praecipe Listing for Trial in order to allow for said
discovery.
6. This case was originally filed on the 5t" day of June, 2008.
7. Plaintiffs request this case to be assigned to a judge and a status conference held
for the purposes of setting a scheduling Order for the completion of discovery in this matter so
that, thereafter, the matter can be listed for trial without further delay.
8. Counsel for Defendants, James H. Slyder and Mary C. Slyder is Hubert Gilroy,
Esquire, who has no objection to this Motion.
9. Counsel for Defendants, Emmanuel Papamarkakis and Jessica Papamarkakis is
Douglas Lovelace, Esquire, who has no objection to this Motion.
10. The undersigned has attached a proposed Order to be completed by the Court
scheduling the status conference for discovery scheduling purposes.
11. No judge has previously been assigned to this matter nor made a rule on any issue
regarding this matter.
Respectfully submitted,
Date: PD//,3/ZvCf
earkAttomey W. Allshouse, squire
ID # 7801
1
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
(717) 582-7476 fax
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been duly served upon the
following, by depositing a copy of the same in the United States Mail, first-class, postage
prepaid, as follows:
Hubert X. Gilroy, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Douglas C. Lovelace, Jr., Esquire
36 Donegal Drive
Carlisle, PA 17013
Date
ark W. Allshouse, squire
Attorney I.D. # 78 4
4833 Spring Roa
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
f' iLED-UrFiC"' n _
Yn
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
7011 JUN 14 AM 6: 5, 1
CUMBERLAND COO T)"
PENNSYLVANIA
Leroy F. Shildt, III and Linda K. Shildt,
husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
James H. Slyder and Mary C. Slyder,
husband and wife,
and
Emmanuel Papamarkakis and
Jessica Papamarkakis, husband and wife,
Defendants
NO. 08-3439 CIVIL TERM
JURY TRIAL DEMANDED
CIVIL ACTION -LAW
PRAECIPE TO WITHDRAW LISTING FOR TRIAL
To the Prothonotary:
Please withdraw the Praecipe to List the above-captioned action for trial at the next term
of civil court which was previously filed on April 18, 2011 and kindly remove the case from the
civil trial list.
Respectfully submitted,
Date: & 191e_q0l1
Mark W. Allshouse, E uire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
(717) 582-7476 fax
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt,
husband and wife,
Plaintiffs
V.
James H. Slyder and Mary C. Slyder,
husband and wife,
and
Emmanuel Papamarkakis and
Jessica Papamarkakis, husband and wife,
Defendants
ORDER OF COURT
AND NOW, this a I day of 2011, upon
consideration of Plaintiffs' Motion for Pre-trial Conference, it is hereby Ordered and Decreed
that a Pre-trial Conference is scheduled for the day of , 2011 in
the Chambers of the Honorable Judge at the Cumberland County Courthouse,
for the purposes of setting a scheduling Order for completion of discovery. Gc+ 9, b -0 1\ &\-
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
L
08-3439CIVIL TER
NO M" ,
. ,
JURY TRIAL DEMANDED k
CIVIL ACTION - LAW ' '
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cc: Mark W. Allshouse, Esquire, 4833 Spring Road, Shermans Dale, PA 17090
Hubert X. Gilroy, Esquire, 10 East High Street, Carlisle, PA 17013
Douglas C. Lovelace, Jr., Esquire, 36 Donegal Drive, Carlisle, PA 17013
oopies WWJ
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Mark W.Allsbouse,Esquire 40, TA R
Attorney ID#78014
4833 Spring Road AP110: 39
Shermans Dale,PA 17090 CU'"P ERLANO
(717)582-4006 COUNTY
Attorney for Plaintiffs S YLVAH/A
Leroy F. Shildt, III and Linda K. Shildt, IN THE COURT OF COMMON PLEAS
husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
James H. Slyder and Mary C. Slyder, NO. 08-3439 CIVIL TERM
husband and wife,
and
Emmanuel Paparnarkakis and JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, CIVIL ACTION - LAW
Defendants
MOTION TO AMEND COMPLAINT
PURSUANT TO PA. R.C.P 1033
AND NOW, come Plaintiffs, Leroy F. Shildt, III and Linda K. Shildt, by and through
their attorney, Mark W. Allshouse, and file this Motion to Amend Complaint and aver as
follows:
1. On or about June 5, 2008 Plaintiffs filed a Complaint in the above-referenced
matter against the above-named Defendants pleading causes of action for adverse possession of
an unopened sixteen (16) foot alley, together with additional counts for declaratory relief,
injunction and quiet title.
2. A portion of the Complaint dealt with additional lands of Defendant Slyder which
have since been resolved.
3. The remaining issue is Plaintiffs' right of possession/utilization of a 16-foot alley
as set forth in the Complaint.
4. Pennsylvania Rules of Civil Procedure allow parties to amend a pleading to
conform to evidence offered and admitted.
S. Plaintiffs, in their original Complaint in paragraph 7, averred that, "Since about
1911, a sixteen(16) foot wide unopened alley has existed along the southern border of the Slyder
property and northern border of the Papamarkakis property extending from Orange Street to the
southeastern comer and along the southern boundary of the Shildt property."
6. Defendants, in their Answer with New Matter, denied that allegation averring that
the property was only laid out on a private plan and had never been accepted by the Borough of
Mount Holly Springs.
7. Thereafter,the parties undertook discovery in this matter including, but not
limited to numerous depositions, obtaining written statements of potential witnesses, extensive
review of public record, which included deeds, agreements, easements, aerial photographs and
taxing information, interviews of witnesses and exchange of numerous sets of Interrogatories and
Requests for Production of Documents.
8. In addition, the parties also, on at least two occasions, attempted to negotiate
settlement in this matter.
9. Currently, according to correspondence received from counsel for Defendant
Papamarkakis, there is still extensive discovery to be done, including interviews of at least
seventeen(17) different witnesses, only one (1) of which has been deposed.
10. The procedural posture of this matter is continuing and on-going discovery.
11. Throughout and during the aforementioned discovery, Plaintiffs have,through the
information provided by deposition witnesses and responses to Interrogatories,received leads
which resulted in Plaintiffs obtaining approximately seventeen (17)pieces of additional evidence
indicating that the 16-foot alley may, indeed, have been either formally or informally accepted
by the Borough of Mount Holly Springs,thereby creating a public access easement.
2
12. Specifically, Plaintiffs have been able to uncover several maps of the Borough of
Mount Holly Springs Planning Commission, Water and Sewer Authority and street maps dating
back as far as 1963 showing the location and utilization of the alleyway by the Borough of
Mount Holly Springs.
13. The new information uncovered during the discovery process has given rise to an
additional cause of action on behalf of Plaintiffs for their right to use of the public access
easement,whether currently opened or abandoned,pursuant to the Pennsylvania Supreme
Court's ruling in Ferko v. Spisak, 373 Pa. Super. 303, 541 A.2d 327 (1988),which holds that
once a public easement has been abandoned,the adjoining property owners retain rights to use of
that abandoned public access easement.
14. Plaintiffs are seeking the Court's permission for the purpose of amending their
Complaint to add this additional cause of action and remove the causes of action which have
been previously been settled between Shildt and Slyder.
15. The addition of this count creates no prejudice toward any Defendant as discovery
is on-going and all parties have the ability to continue to pursue discovery with regard to this
matter.
16. Plaintiffs have proposed an Amended Complaint which is attached hereto as
Exhibit"A".
17. Plaintiffs have already provided to counsel for all Defendants the recently
discovered information which forms the basis of the new cause of action and this Motion to
Amend Complaint.
3
18. The information which is the basis of this cause of action was not known by any
party hereto at the initiation of the proceedings and, as a result, could not have been brought as
Part of the original.action in the original Complaint.
19. Counsel for Defendants has provided the undersigned their written objection to
the filing of this Motion to Amend Plaintiffs' Complaint.
20. Plaintiffs are seeking leave of Court to amend their Complaint. A copy of the
proposed pleading is attached hereto and marked as Exhibit "A".
21. No judge has ruled upon any other issue in the same or related matter to the best
of the undersigned's knowledge.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter an Order
granting leave of Court pursuant to Pennsylvania Rule of Civil Procedure 1033 to file an
amended pleading attached hereto.
Respectfully submitted,
Date:
{
?4833 rk W. Allshous , Esquire
orney ID# 78 4
Spring Roa
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
4
Mark W.Allshouse,Esquire
Attorney ID#78014
4833 Spring Road
Shermans Dale,PA 17090
(717)582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt, IN THE COURT OF COMMON PLEAS
husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
James H. Slyder and Mary C. Slyder, : NO. 08-3439 CIVIL TERM
husband and wife,
and
Emmanuel Papamarkakis and JURY TRIAL DEMANDER
Jessica Papamarkakis,husband and wife, CIVIL ACTION- LAW
Defendants
AMENDED COMPLAINT
AND NOW, come Plaintiffs, Leroy F. Shildt, III and Linda K. Shildt,by and through
their attorney,Mark W. Allshouse, Esquire, and respectfully file the following Complaint and in
support thereof, allege as follows:
1. Plaintiffs; Leroy I'. Shildt, III and Linda K. Shildt(hereinafter"Shildt") are adult
individuals having a current address of 2 East Orange Street, Mount Holly Springs, Cumberland
County, Pennsylvania 17065.,
2. Defendants, James H. Slyder and Mary C. Slyder(hereinafter"Slyder")are adult
individuals.having a current address of 429 Chestnut Street, Mount Holly Springs, Cumberland
County, Pennsylvania 17065.
3. Defendants, Emmanuel Papamarkakis and Jessica Papamarkakis(hereinafter
"Papamarkakis")are adult individuals having a current address of 10A East Orange Street,
Mount Holly Springs, Cumberland County, Pennsylvania 17065.
1
4. Plaintiffs are owners of certain real property located at the afore-mentioned
address and known as tax parcel identification number 23-32-2336-091 as recorded in Deed
Book 27 Page 0133, containing approximately 1.14 more or less. A true and correct copy of
Plaintiffs' Deed is attached hereto and made a part hereof marked as Exhibit"A".
5. Defendants Slyder are the owners of certain real properties to the east and
adjacent to the Shildt property,having a common boundary with Shildt and identified as original
tax parcel identification number 23-32-2336-092 as subdivided and recorded in Plan Book 92,
Page 23 and known as Lots 1-6 on said Plan. A true and correct copy of the pertinent portion of
Defendants' Subdivision Plan is attached hereto and made a part hereof marked as Exhibit"B"
for reference.
6. Defendants Papamarkakis are the owner's of certain real property located at the
afore-mentioned address which adjoins the Shildt propert Y'at the southeast corner and the Slyder
property at the southwest comer and;a I ong its southern border and is known as tax parcel
identification number 23-32-2336-09.3 and"known as Lot 7 on Exhibit"B".
7. Since about 1914 a sixteen (1 6)foot wide unopened alley has existed along the
southern border of the Slyder.property and northern border of the Papamarkakis property
extending from Orange Street to the southeastern comer and along the southern boundary of the
Shildt property. It is depicted on Exhibit"B" between Lots 6 and 7.
9. ,/ The sixteen(16)feet unopened alley is also depicted on various other municipal
maps adopted,utilized and made public by the Borough of Mount Holly Springs, including but
not limited to, the following:
a. Mount Holly Springs Sewer Easement Map of 1963
b. Mount Holly Springs Planning Map of 1969
C. Mount Holly Springs Land Use Map of 1969
2
d. Mount Holly Springs Street Map
9. Until recently,the Borough of Mount Holly Springs had repeatedly utilized and
maintained the 16 foot unopened alley for not only planning purposes but, likewise, for the
installation and maintenance of water and sewer lines and access thereto.
10. The Borough of Mount Holly Springs took no formal action to adopt,the
municipal streets as laid out on its formal Plans referenced above within twenty,One (21) years
and ownership in fee of one-half of the 16 foot wide unopened alley reverted to the adjoining
property owners on each side of the alley, being Slyder, Papamarkakis, Shildt, Stephen Blair and
Suzanne White.
11. Shildt has taken no action to abandon their rights to use of the unopened public
right-of-way.
12. Shildt has continuously and regularly,used the unopened alley extending from
Orange Street to the southeast comer and along the southern border of his property since his
purchase of the property in 1977 and for a-period in excess of twenty-one (2 1)years.
13. Since receiving fee ownership of the alley, Slyder and Papamarkakis both have
refused and failed to permit Shildt from continued use of the alley by both verbal statement and
physical obstruction
I. Shildt v. Sly der
14. Paragraphs I through 13 are hereby incorporated by reference as though full set
forth herein.
15. Shildt has maintained adverse, open, continuous and uninterrupted use of the 16
foot unopened alley extending from Orange Street to the southeast comer and along the southern
border of his property for a period in excess of 21 years.
3
16. Shildt's use of the alley has been without license or permission.
17. Shildt has used the alley to access the rear of his property which is at a different
elevation than the front northern border of his property.
18. Among other things, Shildt has used the property for delivery of construction
materials for building of patios, additions to the home and accessory storage buildings and
g
enclosure for oil tank, landscaping materials, access for mowing equipment, brush',removal, etc. ,
19. Shildt has maintained and improved the cartway along the I
easement by removing
limbs or other debris falling onto the easement and placing stone and gravel.. and.along the
cartway.
20. Shildt's use of the easement is not inconsistent with any other property owners'
rights.
21. The easement existed at the time cif purchase,6f the property of Slyder,with signs
of tire indentations in the grass which were``reacily visible to any purchaser.
22. It is believed, and therefore;,4verred that Slyder was aware of the easement at the
time of purchase of the,property..
23. The easement does no.t"constitute unenclosed woodlands.
24. Shildt used all 16 feet of the easement at various times due to the width of
construction and delivery vehicles entering and exiting through the easement.
25,/ As a result, Shildt has obtained a legal prescriptive easement and right to
continued use of the 16 foot unopened paper alley,eight (8) feet of which crosses over the Slyder
property.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Slyder and enter an Order confirming Shildt's right to
continued use of 8 feet of the easement located on the Slyder property.
4
II. Shildt v.Papamarkakis
26. Paragraphs I through 22 are hereby incorporated by reference as though full set
forth herein.
27. Shildt has maintained adverse, open, continuous and uninterrupted use of the 16
foot unopened alley extending from Orange Street to the southeast comer and along the southern
border of his property for a period in excess of 21 years.
28. Shildt's use of the alley has been without license or permission.
29. Shildt has used the alley to access the rear of his property which is at a different
elevation than the front northern border of his property.
30. Among other things, Shildt has used the property for delivery of construction
materials for building of patios, additions to the home and accessory storage buildings and
enclosure for oil tank, landscaping materials, access for mow in equipment, brush removal, etc.
9
31. Shildt has maintained and improved the cartway along the easement by removing
limbs or other debris falling onto the easement and placing stone and gravel in and along the
cartway.
32. Shildt's use of the easement is not inconsistent with any other property owners'
rights.
33. The easement existed at the time of purchase of the property of Papamarkakis,
with signs of tire indentations in the grass which were readily visible to any purchaser.
34. It is believed, and therefore, averred that Papamarkakis was aware of the
easement at the time of purchase of the property.
35. The easement does not constitute unenclosed woodlands.
36. Shildt used all 16 feet of the easement at various times due to the width of
construction and delivery vehicles entering and exiting through the easement.
5
37. As a result, Shildt has obtained a legal prescriptive easement and right to
continued use of the 16 foot unopened paper alley, eight(8)feet of which crosses over the
Papamarkakis property.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Papamarkakis and enter an Order confirming Shildt's
right to continued use of 8 feet of the easement located on the Papamarkakis property.
111. Shildt v. Slyder
Declaratory Relief/Request for Injunction
38. Paragraphs I through 37 are hereby incorporated by reference as though full set
forth herein.
39. Despite notice by Shildt to Slyder of his right of use, Slyder has undertaken
intentional steps to block Shildt's access and use of the easement.
40. Specifically, Slyder has done the f6llowing:
a. Placed largeequiprnent within the easement on numerous occasions
b. Dug trenches across the easement left open for approximately six (6) days
C. Placed large,piles,of stone in the center of the easement for a period in
excess of twenty (20)days
41. Slyder's actions have been undertaken vexatiously and in bad faith in a deliberate
attempt to prevent Plaintiffs' legal use of the easement and even occurred during attempted
negotiations to resolve this dispute.
42. Slyder's actions have occurred despite prior acknowledgment on public record
during his land development and subdivision approval that he had no intention of blocking or
interfering with said easement.
43. Shildt has done nothing to waive their rights and, as an abutting landowner to the
abandoned Borough alleyway, continues to have the legal right to travel the alleyway as
6
confirmed by Pennsylvania Superior Court's holding in the matter of Ferko v. Spisak, 541 A.2d
327 (1988).
44. Plaintiff is requesting a declaratory judgment and Order enjoining Slyder from
further blocking or obstructing Plaintiffs' use of the easement.
45. Plaintiff is further seeking punitive damages as a result of Slyder's,vexatious and
bad faith conduct in an amount to be determined, but which shall include costs and attorney's
fees expended in bringing this action to enforce Sbildt's legal rights.
WHEREFORE, Plaintiffs respectfully request this Honorable Cotift to enter Judgment in
favor of Plaintiffs and against Defendant Slyder enjoining further action to"'block or prevent
Plaintiffs' continued use of the easement together with punitive damages in an amount not less
than actual costs and attorney's fees.
IV.- Shi,ldtV.Papamarkakis
Declaratory Rifief/Wquest for Iniunction
46. Paragraphs I through 45,are hereby incorporated by reference as though full set
forth herein.
47. Despitenotice by.Shildt to Papamarkakis of his right of use, Papamarkakis has
undertaken,intentional steps t6 block Shildt's access and use of the easement.
48. Specifically,Papamarkakis has done the following:
a,,, Placed vehicles in the easement on more than one occasion
b. Threatened by verbal abuse Plaintiff when legally using the easement.
49. Shildt has done nothing to waive their rights and, as an abutting landowner to the
abandoned Borough alleyway, continues to have the legal right to travel the alleyway as
confirmed by Pennsylvania Superior Court's holding in the matter of Ferko v. Spisak, 541 A.2d
327 (1988).
7
50. Papamarkakis' actions have been undertaken vexatiously and in bad faith in a
deliberate attempt to prevent Plaintiffs' legal use of the easement.
51. Plaintiff is requesting a declaratory judgment and Order enjoining Papamarkakis
from further blocking or interfering with Plaintiffs' use of the easement.
52. Plaintiff is further seeking punitive damages as a result of Papamarkakis'
vexatious and bad faith conduct in an amount to be determined.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Papamarkakis enjoining furtherr acti66—to,block or
prevent Plaintiffs' continued use of the easement together with punitive damages in an amount
not less than actual costs and attorney's fees.
V. Shildt v.Slyder
Tres ass and Conversion
53. Paragraphs 1 through 52.are hereby incorporated by reference as though full set
forth herein.
54. On or about November 24, 2007, Slyder did enter and trespass upon Shildt
property and did cut down and iremo"ve a large sycamore tree having a height of over forty(40)
feet and a diameter of over forty-five(45)inches at the stump.
55. Slyder undertook this action despite being notified immediately prior thereto that
the tree was not located on any portion of the Slyder property.
56. Thereafter, despite warning of possible legal action for damages, Slyder cut the
tree and removed all wood.
57. As a result of the actions, Slyder has illegally cut a large tree from the Shildt
property and converted the value thereof for Defendants' personal benefit.
8
58. The large tree served as screening between the Shildt property and the newly-
constructed townhouses on both the Slyder and Papamarkakis property.
59. As a result of the tree cutting, a large, open, unscreened gap exists in the
previously screened boundary line between the properties.
60. Shildt has suffered damages by both loss of the aesthetic beauty and'value of the
tree.
61. As a result of his actions, Slyder is liable to Shildt for conversion and trespass.
62. Slyder's actions were taken in bad faith, having been toldpini"ites before cutting
the tree that it was not on his property.
63. In order to determine the boundary, Shildt has had a survey performed which
specifically depicts the location of the tree being completely on the Shildt property. A true and
correct copy of the survey is attached hereto and/imide a p4rilereof marked as Exhibit"C".
WHEREFORE, Plaintiffs re ect
fqrly request this Honorable Court to enter judgment in
favor of Plaintiffs and against 156'fendani'Slyder in!' an amount equal to the value of the tree and
replacement screening,.,not in.excess\o 6ifteen Thousand and 00/100 Dollars ($15,000) with
- \ / \\I\
interest and other such relielf:as the cot(rt deems fair and just.
Respectfully submitted,
D te.
Mark W. Allshouse, Esquire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
9
Mark W.Allshouse,Esquire
Attorney ID#78014
4833 Spring Road
Shermans Dale,PA 17090
(717)582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt, IN THE COURT OF COMMON PLEAS
husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. �\
James H. Slyder and Mary C. Slyder, NO. 08-3439 CIVIL TERM
husband and wife, t
and
Emmanuel Papamarkakis and JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, CIVIL ACTIO'N'-'LAW
Defendants
CERTIFICATE OF-SERVICE
I hereby certify that a copy of the foregoirig,documerit has been duly served upon the
following, by depositing a copy of theIsame in the',Unted States Mail first-class postage
prepaid, as follows:
,\ 1)6uglas1C. Lovelace, Jr., Esquire
36 Donegal Drive
o Carlisle, PA 17013
-^--' Hubert X. Gilroy, Esquire
k , 1 Martson Law Offices
10 East High Street
Carlisle, PA 17013
Date:
Mark W. Allshouse,Esquire
Attorney I.D. # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
10
Mark W.Allshouse,Esquire
Attorney ID#78014
4833 Spring Road
Shermans Dale,PA 17090
(717)582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt, IN THE COURT OF COMMON PLEAS
husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
James H. Slyder and Mary C. Slyder, NO. 08-3439 CIVIL TERM
husband and wife,
and
Emmanuel Papamarkakis and JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, CIVIL ACTION - LAW
Defendants
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been duly served upon the
following, by depositing a copy of the same in the United States Mail, first-class, postage
prepaid, as follows:
Douglas C. Lovelace, Jr., Esquire
36 Donegal Drive
Carlisle, PA 17013
Hubert X. Gilroy, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Date:S � �Z /
squire
A'ark6;W,Allshouse,
toI.D. # 78 4
833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
5
r+1
LEROY F. SHILDT, III AND IN THE COURT OF COMMON PLEAS OF
LINDA K. SHILDT, CUMBERLAND COUNTY, PENNSYLVANIA
HUSBAND AND WIFE,
PLAINTIFFS
V. :
• ms's A� ��,
JAMES H. SLYDER AND
MARY C. SLYDER, M
HUSBAND AND WIFE, ¢
AND - .e--
EMMANUEL PAPAMARKAKIS AND
JESSICA PAPAMARKAKIS,
HUSBAND AND WIFE ''
DEFENDANTS NO. 08-3439 CIVIL -'
ORDER OF COURT
AND NOW, this 14th day of May, 2013, upon consideration of Plaintiffs' Motion to
Amend Complaint pursuant to Pa.R.C.P. 1033;
IT IS HEREBY ORDERED AND DIRECTED that:
1. A Rule shall issue upon the Defendants to show cause why the Motion to
Amend Complaint should not be granted;
2. Defendants shall file an Answer to the Motion to Amend Complaint on or
before June 7, 2013;
3. Hearing/argument on the matter will be held on Wednesday, June 19, 2013,
at 2:00 p.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle,
Pennsylvania.
By the Court,
�4A-
M. L. Ebert, Jr., J.
✓Mark W. Allshouse, Esquire
,'-Hubert X. Gilroy, Esquire
-"Douglas C. Lovelace, Jr., Esquire
bas
Coj. ► �-
s�r�c�i3
J..
R,L
LEROY F. SHILDT, III and LINDA K. IN THE COURT OF COMMON PLEAS
SHILDT, husband and wife CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
V.
CIVIL ACTION—IN LAW
JAMES H. SLYDER and MARY C. SLYDER,
husband and wife
and CIVIL TERM
EMMANUEL PAPAMARKAKIS and NO. 2008-3439
JESSICA PAPAMARKAKIS, husband and
wife
Defendants
ANSWER OF EMMANUEL AND JESSICA PAPAMARKAKIS TO MOTION TO
AMEND COMPLAINT PURSUANT TO PA. R.C.P. 1033
AND NOW come Defendants Emmanuel Papamarkakis and Jessica Papamarkakis, by
and through their attorney, Douglas C. Lovelace, Jr., Esquire, and file this Answer to Plaintiffs'
Motion to Amend Complaint, setting forth as follows:
1. Admitted. By way of further answer, Plaintiffs'adverse possession claim, was in the
form of a prescriptive easement.
2. Denied, as stated. By way of further answer, Plaintiffs continue to seek a prescriptive
easement over the sixteen feet wide parcel of land, the southerly half of which is owned by
Defendants. By way of further answer, in addition to claiming a prescriptive easement over the
aforementioned land of Defendants, Plaintiffs also continue to seek declaratory relief, an
injunction, and punitive damages.
3. Admitted.
4. Admitted.
5. Denied. Defendants in their Answer and New matter averred that "a stub of an alley
was laid out on an unrecorded Plan of Town Lots for Mount Holly Springs, in the 19th Century.
Its description was carried forward as a boundary marker on subsequent deeds of conveyance,
depicted as being sixteen (16)feet in width and a segment of approximately 100 feet in length
running between adjacent property to the west (not part of The Plan of Town Lots) and Orange
Street to the east. Having never been accepted by the Borough of Mount Holly Springs, this
'paper alley'technically reverted to ownership in fee between its adjoiners (to the north and to the
south) after 21 years."
6. Admitted.
7. Admitted. By way of further answer, Plaintiffs contacted Defendants on two
occasions essentially asking Defendants to capitulate to Plaintiffs'demands.
8. Denied. As supplemental discovery, Defendants'counsel informed Plaintiffs'counsel,
by letter, that Defendants intended to call ten additional witnesses to testify at trial of the case.
Defendants have interviewed six of the additional witnesses and deposed one, who is in poor
health, in order to preserve his testimony.
9. Admitted.
10. Denied. The additional pieces of evidence to which Plaintiffs refer do not in any
way indicate that the alleyway was either formally or informally accepted by the Borough of
Mount Holly Springs nor do they create a public access easement. At best, the additional
documents indicate the Borough of Mount Holly Springs maintained a sewer maintenance
2
y
easement over the land at issue, for the purpose of repairing a portion of the underground sewer
line, should the need arise. When Defendants acquired ownership of half of the alleyway,
Defendants conveyed a similar sewer maintenance easement to the Borough of Mount Holly
Springs and such easement remains in effect today. Neither the original nor the replacement
easement has ever been a public access easement.
11. Denied. The additional pieces of evidence to which Plaintiffs refer do not show use
of an alleyway by the Borough of Mount Holly Springs. At best, the additional documents
indicate the Borough of Mount Holly Springs maintained a sewer maintenance easement over the
land at issue, for the purpose of repairing a portion of the underground sewer line, should the
need arise. Such easement never created a public access easement over the land at issue.
12. Denied. Pennsylvania law provides that any street, lane or alley, laid out in a village
or town plot or plan of lots that is not opened within 21 years for public use by the municipality
shall have no force and effect and shall not be opened, without the consent of the owners of the
land on which the street, lane or alley had been laid out. 36 P.S. § 1961 (2013) (Unopened ways
or streets on towns plots). The Borough of Mount Holly Springs did not open the sixteen-foot
alleyway, within 21 years of it being laid out; therefore, any public right of way that might have
been created was extinguished. Pennsylvania case law provides that even where a street or
alleyway had not been opened for over 21 years, the original owners of lots within the plan of
lots that abut the street or alleyway, and their grantees, accrue a permanent right to use the
unopened street or alleyway. The key point is the original owners and their grantees must have
owned lots in the plan of lots; in this case, "The Plan of Town Lots." Rahn v. Hess, 378 Pa. 264,
106 A.2d. 461 (1954); Ferko v. Spizak , 373 Pa. Super. 303, 541 A.2d. 327 (1988); Riek and
Mindyas v. Binnie, 352 Pa. Super. 246, 507 A.2d. 856 (1986). Plaintiffs'reliance on Ferko
3
r
appears misplaced, since the lands of Plaintiffs or Plaintiffs'grantors were never part of The Plan
of Town Lots. Therefore, Plaintiffs cannot avail themselves of the rule established by Rahn and
followed by Ferko and Riek. Consequently, Plaintiffs have no right of easement or any other use
of the unopened alleyway. Pennsylvania law provides that for an amended pleading to be
allowed, the amendment must have a reasonable chance of success. Glenn v. Point Park College,
441 Pa. 474, 272 A.2d. 895 (1971); Stempler v. Frankford Trust Co., 365 Pa. Super. 305; 529
A.2d. 521 (1987). Plaintiffs'proposed Amended Complaint does not plead that Plaintiffs'lands
were ever part of "The Plan of Town Lots,'nor any other plan of lots, nor should it. Therefore,
Plaintiffs'proposed Amended Complaint has no reasonable possibility of success, and should not
be allowed.
13. Admitted.
14. Denied. Pennsylvania law provides that for an amendment to a pleading to be
denied on the grounds of undue prejudice to the opposing party, the prejudice must stem from
the fact that the new allegations are offered late rather than in the original pleading, and not from
the fact that the opposing party may lose its case on the merits if the pleading is allowed.
Horowitz v. Universal Underwriters Ins. Co., 397 Pa. Super. 473; 580 A.2d. 395 (1990). Undue
delay alone is not a sufficient ground for disallowing an amendment to a pleading. However,
eleventh hour surprise or loss of witnesses could constitute the prejudice required to disallow an
amendment. Zummo v. City of Scranton, 2011 Pa. Dist. & Cnty.; 21 Pa. D. & C.5th 565 (2011).
Plaintiffs'over four-year and nine-month delay in requesting amendment to their Complaint to
assert an entirely new cause of action and legal theory unduly prejudices Defendants. Since
Plaintiffs'filing of their Complaint, two of Defendants'key witnesses, Mr. William K. Peffer and
Mr. Edward Blemler, have passed away. Although Defendants timely deposed these witnesses,
4
4
such depositions were structured around Plaintiffs'prescriptive easement cause of action and
legal theory. Consequently, Defendants depositions of the two now deceased witnesses did not
include inquiries structured around the new cause of action and legal theory that form the basis
of Plaintiffs'proposed Amended Complaint. Since it is no longer possible for Defendants to
depose those two key witnesses, in light of Plaintiffs'new cause of action and legal theory,
Defendants would be unduly prejudiced, if Plaintiffs were allowed to amend their Complaint.
By way of further answer, Plaintiffs elected to pursue amendment of their Complaint only after
Defendants'deposition of a disinterested witness who testified convincingly that Plaintiffs'
prescriptive easement claim is based on false allegations made by Plaintiffs. Granting of
Plaintiffs'motion to amend its Complaint would further extend this almost five-year-long
litigation and cause Defendants additional severe financial hardship.
15. Admitted.
16. Denied. The information Plaintiffs'claim they recently discovered and provided to
Defendants, at best, show the longstanding existence of a Mount Holly Springs Borough sewer
maintenance easement over Defendants'and their grantors'land--an easement that Defendants
affirmed to Mount Holly Springs Borough, was formally accepted by Mount Holly Springs
Borough, and was duly recorded. The information Plaintiffs provided Defendants in no way
provides a basis for the new cause of action Plaintiffs seek to assert.
17. Denied. The information upon which Plaintiffs base their new cause of action are
mostly aged documents known to, or easily discoverable, by the parties at the initiation of this
litigation by Plaintiffs.
18. Admitted.
19. Admitted.
5
20. Admitted.
WHEREFORE, Defendants respectfully request this Honorable Court enter an Order
denying leave of Court to file the Amended Complaint attached to Plaintiffs'motion.
Respectfully submitted
Date: June 6, 2013 E fo)glas C. Lovelace, Jr., Esquire
36 Donegal Drive
Carlisle, PA 17013
ID No. 83889
(717) 385-1866
Attorney for Defendants Papamarkakis
6
VERIFICATION
I verify that the statements made in the foregoing Answer of Emmanuel and Jessica
Papamarkakis to Motion to Amend Complaint Pursuant to Pa. R.C.P. 1033 are true and correct.
I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904.
Date: June_, 2013
U I Lrl-
Emmanuel Papamarkakis
• r
Jessica Papamarkakis
LEROY F. SHILDT, III and LINDA K. IN THE COURT OF COMMON PLEAS
SHILDT, husband and wife CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
V.
JAMES H. SLYDER and MARY C. SLYDER, : CIVIL ACTION—IN LAW
husband and wife
and CIVIL TERM
EMMANUEL PAPAMARKAKIS and : NO. 2008-3439
JESSICA PAPAMARKAKIS, husband and
wife
Defendants
CERTIFICATE OF SERVICE
I, Douglas C. Lovelace, Jr., Esquire, certify that I served a true and correct copy of the
foregoing Answer of Emmanuel and Jessica Papamarkakis to Motion to Amend Complaint
Pursuant to Pa. R.C.P. 1033, by placing the same in the United States mail,postage prepaid, at
Carlisle, PA, on the date below indicated, on the following individuals:
TO: Leroy F. Shildt and Linda K. Shildt
C/o Mark W. Allshouse, Esquire
4833 Spring Road
Shermans Dale, PA PA 17090
Date: June�, 2013 -
Dougla velace, Jr., Esquire
36 Donegal Drive
Carlisle, PA 17013
ID No. 83889
(717) 385-1866
Attorney for Defendants Papamarkakis
Hubert X. Gilroy, Esquire
MARTSON DEARDORFF WILLIAMS & OTTO
I.D. 29943
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Defendants
LEROY F. SCHILDT, III, and : IN THE COURT OF COMMON PLEAS OF
LINDA K. SCHILDT, husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v. : NO. 2008-3439
: CIVIL ACTION - LAW
JAMES H. SLYDER and
MARY C. SLYDER, husband and wife •
•
•
andrn
•
EMMANUEL PAPAMARKAKIS and
PAPAMARKAKIS, •
husband and wife :
Defendants • V. -
ANSWER OF JAMES H. SLYDER AND MAY C. SLYDER TO MOTION TO AMEND
COMPLAINT
Defendants, James H. Slyder and Mary C. Slyder, by their attorneys, Martson Law Offices,
sets forth the following in response to Plaintiffs' Motion to Amend Complaint:
1. Defendants James H. Slyder and Mary C. Slyder join in and incorporate by reference
thereto the allegations set forth in the Answer filed by Defendants Emanuel
Papamarkakis and Jessica Papamarkakis to the Plaintiffs' Motion to Amend
Complaint.
Wherefore,Defendants respectfully request that Plaintiffs' Motion to Amend Complaint be
denied.
MARTSON LAW OFFICES
By
Hubert X. 1 roy, Esquire
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Defendants
Dated: June ( , 2013
LEROY F. SCHILDT, III, AND : IN THE COURT OF COMMON PLEAS OF
LINDA K. SCHILDT : CUMBERLAND COUNTY, PENNSYLVANIA
HUSBAND AND WIFE
PLAINTIFFS •
V. •
•
rnco �- f
JAMES H. SLYDER AND : '; a
MARY C. SLYDER, •
HUSBAND AND WIFE, •
AND ..7
r.
-cam -v �-�,
3> ;r
EMMANUEL PAPAMARKAKIS AND
JESSICA PAPAMARKAKIS, - ;
HUSBAND AND WIFE •
DEFENDANTS : No. 08-3439 CIVIL
ORDER OF COURT
AND NOW, this 27th day of June, 2013, upon consideration of Plaintiff's Motion to
Amend Complaint pursuant to Pa.R.C.P. 1033, Defendant's Answer, the briefs filed by
the parties, and after argument held on June 20, 2013;
IT IS HEREBY ORDERED AND DIRECTED that Plaintiff's Motion to Amend
Complaint is GRANTED. Plaintiff shall file the Amended Complaint on or before July 5,
2013.
By the Court,
INCL., 1
M. L. Ebert, Jr., , J.
`Mark W. Allshouse, Esquire
-- I-lubert X. Gilroy, Esquire
Douglas C. Lovelace, Jr., Esquire
bas &cc
aVi3
Mark W. Alishouse, Esquire ? lily ;V
Attorney ID#78014 k
4833 Spring Road '
Shermans Dale, PA 17090 —Z
(717)582-4006 n{ 11,1A0 C�u
Attorney for Plaintiffs cu(� f ,t�5 01'NiAk
Leroy F. Shildt, III and Linda K. Shildt, : IN THE COURT OF COMMON PLEAS
husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
James H. Slyder and Mary C. Slyder, : NO. 08-3439 CIVIL TERM
husband and wife,
and
Emmanuel Papamarkakis and : JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, : CIVIL ACTION - LAW
Defendants
NOTICE TO PLEAD
TO: Emmanuel and Jessica Papamarkakis, James and Mary Slyder, Defendants
Defendants c/o Hubert X. Gilroy, Esquire
c/o Douglas C. Lovelace, Jr., Esquire Martson Law Offices
36 Donegal Drive 10 East High Street
Carlisle, PA 17013 Carlisle, PA 17013
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 Amended 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 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 Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717)249-3166
Date:7220/3 / , 11/,
Allshouse, Esqu. e
ttorney ID# 78014
4833 Spring Road
Shermans Dale, PA 17090
(717)582-4006
Attorney for Plaintiffs
Mark W. Allshouse, Esquire
Attorney ID#78014
4833 Spring Road
Shermans Dale, PA 17090
(717)582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt, : IN THE COURT OF COMMON PLEAS
husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
•
•
v.
James H. Slyder and Mary C. Slyder, : NO. 08-3439 CIVIL TERM
husband and wife,
•
and
Emmanuel Papamarkakis and : JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, : CIVIL ACTION - LAW
Defendants
AMENDED COMPLAINT
AND NOW, come Plaintiffs, Leroy F. Shildt, III and Linda K. Shildt, by and through
their attorney, Mark W. Allshouse, Esquire, and respectfully file the following Complaint and in
support thereof, allege as follows:
1. Plaintiffs, Leroy F. Shildt, III and Linda K. Shildt (hereinafter "Shildt") are adult
individuals having a current address of 2 East Orange Street, Mount Holly Springs, Cumberland
County, Pennsylvania 17065.
2. Defendants, James H. Slyder and Mary C. Slyder (hereinafter"Slyder") are adult
individuals having a current address of 429 Chestnut Street, Mount Holly Springs, Cumberland
County, Pennsylvania 17065.
3. Defendants, Emmanuel Papamarkakis and Jessica Papamarkakis (hereinafter
"Papamarkakis") are adult individuals having a current address of 10A East Orange Street,
Mount Holly Springs, Cumberland County, Pennsylvania 17065.
1
4. Plaintiffs are owners of certain real property located at the afore-mentioned
address and known as tax parcel identification number 23-32-2336-091 as recorded in Deed
Book 27 Page 0133, containing approximately 1.14 more or less. A true and correct copy of
Plaintiffs' Deed is attached hereto and made a part hereof marked as Exhibit "A".
5. Defendants Slyder are the owners of certain real properties to the east and
adjacent to the Shildt property, having a common boundary with Shildt and identified as original
tax parcel identification number 23-32-2336-092 as subdivided and recorded in Plan Book 92,
Page 23 and known as Lots 1-6 on said Plan. A true and correct copy of the pertinent portion of
Defendants' Subdivision Plan is attached hereto and made a part hereof marked as Exhibit `B"
for reference.
6. Defendants Papamarkakis are the owners of certain real property located at the
afore-mentioned address which adjoins the Shildt property at the southeast corner and the Slyder
property at the southwest corner and along its southern border and is known as tax parcel
identification number 23-32-2336-093 and known as Lot 7 on Exhibit"B".
7. The property owned by Defendant Papamarkakis was part of the subdivision done
by Slyder and Defendant Papamarkakis' rights with regard to the property were derived from
Slyer as successors in interest.
8. Since about 1911, a sixteen (16) foot wide alley has existed along the southern
border of the Slyder property and northern border of the Papamarkakis property extending from
Orange Street to the southeastern corner and along the southern boundary of the Shildt property.
It is depicted on Exhibit"B"between Lots 6 and 7.
9. The sixteen (16) feet alley is also depicted on various other municipal maps
adopted, utilized and made public by the Borough of Mount Holly Springs, including but not
limited to, the following:
2
a. Mount Holly Springs Sewer Easement Map of 1963
b. Mount Holly Springs Planning Map of 1969
c. Mount Holly Springs Land Use Map of 1969
d. Mount Holly Springs Street Map
10. Until recently, the Borough of Mount Holly Springs had repeatedly utilized and
maintained the 16 foot unopened alley for not only municipal planning purposes but, likewise, to
provide for the installation and maintenance of water and sewer lines and access thereto by
Mount Holly Springs Sewer Authority.
11. The Borough of Mount Holly Springs took no formal action to adopt the
municipal streets as laid out on its adopted, land use,planning and street maps referenced above
within twenty-one (21)years and ownership in fee of one-half of the 16 foot wide unopened
alley reverted to the adjoining property owners on each side of the alley, being Slyder,
Papamarkakis, Shildt, Stephen Blair and Suzanne White.
12. Shildt has taken no action to abandon their rights to use of the unopened public
right-of-way.
13. Shildt has continuously and regularly used the unopened alley extending from
Orange Street to the southeast corner and along the southern border of his property since his
purchase of the property in 1977 and for a period in excess of twenty-one (21) years.
14. Since receiving fee ownership of the alley, Slyder and Papamarkakis both have
refused and failed to permit Shildt from continued use of the alley by both verbal statement and
physical obstruction.
I. Shildt v. Slyder
15. Paragraphs 1 through 14 are hereby incorporated by reference as though full set
forth herein.
3
16. Shildt has maintained adverse, open, continuous and uninterrupted use of the 16
foot unopened alley extending from Orange Street to the southeast corner and along the southern
border of his property for a period in excess of 21 years.
17. Shildt's use of the alley has been without license or permission.
18. Shildt has used the alley to access the rear of his property which is at a different
elevation than the front northern border of his property.
19. Among other things, Shildt has used the property for delivery of construction
materials for building of patios, additions to the home and accessory storage buildings and
enclosure for oil tank, landscaping materials, access for mowing equipment, brush removal, etc.
20. Shildt has maintained and improved the cartway along the easement by removing
limbs or other debris falling onto the easement and placing stone and gravel in and along the
cartway.
21. Shildt's use of the easement is not inconsistent with any other property owners'
rights.
22. The easement existed at the time of purchase of the property of Slyder, with signs
of tire indentations in the grass which were readily visible to any purchaser.
23. It is believed, and therefore, averred that Slyder was aware of the easement at the
time of purchase of the property.
24. The easement does not constitute unenclosed woodlands.
25. Shildt used all 16 feet of the easement at various times due to the width of
construction and delivery vehicles entering and exiting through the easement.
26. As a result, Shildt has obtained a legal prescriptive easement and right to
continued use of the 16 foot unopened paper alley, eight (8) feet of which crosses over the Slyder
property.
4
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Slyder and enter an Order confirming Shildt's right to
continued use of 8 feet of the easement located on the Slyder property.
II. Shildt v. Papamarkakis
27. Paragraphs 1 through 26 are hereby incorporated by reference as though full set
forth herein.
28. Shildt has maintained adverse, open, continuous and uninterrupted use of the 16
foot unopened alley extending from Orange Street to the southeast corner and along the southern
border of his property for a period in excess of 21 years.
29. Shildt's use of the alley has been without license or permission.
30. Shildt has used the alley to access the rear of his property which is at a different
elevation than the front northern border of his property.
31. Among other things, Shildt has used the property for delivery of construction
materials for building of patios, additions to the home and accessory storage buildings and
enclosure for oil tank, landscaping materials, access for mowing equipment, brush removal, etc.
32. Shildt has maintained and improved the cartway along the easement by removing
limbs or other debris falling onto the easement and placing stone and gravel in and along the
cartway.
33. Shildt's use of the easement is not inconsistent with any other property owners'
rights.
34. The easement existed at the time of purchase of the property of Papamarkakis,
with signs of tire indentations in the grass which were readily visible to any purchaser.
35. It is believed, and therefore, averred that Papamarkakis was aware of the
easement at the time of purchase of the property.
5
36. The easement does not constitute unenclosed woodlands.
37. Shildt used all 16 feet of the easement at various times due to the width of
construction and delivery vehicles entering and exiting through the easement.
38. As a result, Shildt has obtained a legal prescriptive easement and right to
continued use of the 16 foot unopened paper alley, eight (8) feet of which crosses over the
Papamarkakis property.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Papamarkakis and enter an Order confirming Shildt's
right to continued use of 8 feet of the easement located on the Papamarkakis property.
III. Shildt v. Slyder
Declaratory Relief/Request for Injunction
39. Paragraphs 1 through 38 are hereby incorporated by reference as though full set
forth herein.
40. Despite notice by Shildt to Slyder of his right of use, Slyder has undertaken
intentional steps to block Shildt's access and use of the easement.
41. Specifically, Slyder has done the following:
a. Placed large equipment within the easement on numerous occasions
b. Dug trenches across the easement left open for approximately six (6) days
c. Placed large piles of stone in the center of the easement for a period in
excess of twenty (20) days
42. Slyder's actions have been undertaken vexatiously and in bad faith in a deliberate
attempt to prevent Plaintiffs' legal use of the easement and even occurred during attempted
negotiations to resolve this dispute.
43. Slyder's actions have occurred despite prior acknowledgment on public record
during his land development and subdivision approval that he had no intention of blocking or
interfering with said easement.
6
44. Shildt has done nothing to waive their rights and, as an abutting landowner to the
abandoned Borough alleyway, continues to have the legal right to travel the alleyway as
confirmed by Pennsylvania Superior Court's holding in the matter of Ferko v. Spisak, 541 A.2d
327 (1988).
45. Plaintiff is requesting a declaratory judgment and Order enjoining Slyder from
further blocking or obstructing Plaintiffs' use of the easement.
46. Plaintiff is further seeking punitive damages as a result of Slyder's vexatious and
bad faith conduct in an amount to be determined, but which shall include costs and attorney's
fees expended in bringing this action to enforce Shildt's legal rights.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Slyder enjoining further action to block or prevent
Plaintiffs' continued use of the easement together with punitive damages in an amount not less
than actual costs and attorney's fees.
IV. Shildt v. Papamarkakis
Declaratory Relief/Request for Injunction
47. Paragraphs 1 through 46 are hereby incorporated by reference as though full set
forth herein.
48. Despite notice by Shildt to Papamarkakis of his right of use, Papamarkakis has
undertaken intentional steps to block Shildt's access and use of the easement.
49. Specifically, Papamarkakis has done the following:
a. Placed vehicles in the easement on more than one occasion
b. Threatened by verbal abuse Plaintiff when legally using the easement.
50. Shildt has done nothing to waive their rights and, as an abutting landowner to the
abandoned Borough alleyway, continues to have the legal right to travel the alleyway as
7
confirmed by Pennsylvania Superior Court's holding in the matter of Ferko v. Spisak, 541 A.2d
327 (1988).
51. Papamarkakis' actions have been undertaken vexatiously and in bad faith in a
deliberate attempt to prevent Plaintiffs' legal use of the easement.
52. Plaintiff is requesting a declaratory judgment and Order enjoining Papamarkakis
from further blocking or interfering with Plaintiffs' use of the easement.
53. Plaintiff is further seeking punitive damages as a result of Papamarkakis'
vexatious and bad faith conduct in an amount to be determined.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Papamarkakis enjoining further action to block or
prevent Plaintiffs' continued use of the easement together with punitive damages in an amount
not less than actual costs and attorney's fees.
V. Shildt v. Slyder
Trespass and Conversion
54. Paragraphs 1 through 53 are hereby incorporated by reference as though full set
forth herein.
55. On or about November 24, 2007, Slyder did enter and trespass upon Shildt
property and did cut down and remove a large sycamore tree having a height of over forty (40)
feet and a diameter of over forty-five (45) inches at the stump.
56. Slyder undertook this action despite being notified immediately prior thereto that
the tree was not located on any portion of the Slyder property.
57. Thereafter, despite warning of possible legal action for damages, Slyder cut the
tree and removed all wood.
58. As a result of the actions, Slyder has illegally cut a large tree from the Shildt
property and converted the value thereof for Defendants' personal benefit.
8
59. The large tree served as screening between the Shildt property and the newly-
constructed townhouses on both the Slyder and Papamarkakis property.
60. As a result of the tree cutting, a large, open, unscreened gap exists in the
previously screened boundary line between the properties.
61. Shildt has suffered damages by both loss of the aesthetic beauty and value of the
tree.
62. As a result of his actions, Slyder is liable to Shildt for conversion and trespass.
63. Slyder's actions were taken in bad faith,having been told minutes before cutting
the tree that it was not on his property.
64. In order to determine the boundary, Shildt has had a survey performed which
specifically depicts the location of the tree being completely on the Shildt property. A true and
correct copy of the survey is attached hereto and made a part hereof marked as Exhibit"C".
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendant Slyder in an amount equal to the value of the tree and
replacement screening, not in excess of Fifteen Thousand and 00/100 Dollars ($15,000) with
interest and other such relief as the court deems fair and just.
Respectfully submitted,
Date: 112/2
1
ark W. Allshouse, Es. ire
Attorney ID # 78014
4833 Spring Road
Shermans Dale, PA 17090
(717) 582-4006
Attorney for Plaintiffs
9
Exhibit "A"
03/25/2008 17:45 7172490026 AA ABSTRACT PAGE 03/24
•
•
i
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(
! N...sac FEE-SAMPLE DEED—Typewriter
I
1
ntJrntun Ult5 Ittbrittitrr, for o Jp .
�. \4r day ofc¢ �•
is the year of our Lord Cue
J'Aouacnrt Nine Hundred and \C\-\1'
4
f NPt111PrII Paul L. Shea£fer and Lois S. Sheaffer. his wife, of Mount holly
•
Springs, Cumberland County, Pennsylvania, Grantors, parties of the first part,
g
• M
• 0
I '1
Leroy P. Shildt, III, and Linda K, Shildt, his wife, of Mount Holly Springs,
Cumberland County, Pennsylvania, Grantees, parties
of tie second port, luxttltk'S9rXil That the aaidpart lea of the first port,for and IK consideration
of the sum of Thirty-Sic Thousand ($36,000.30)
1 Dollars,lawful stoney of the United state,of Aweri,e,well and truly paid by the said parties of the
I •rcon.t port to the said part ies of the first Dart,at and before the reeling and delieery of Mesa•
1 .rraents,the receipt,rherrof is hereby acknowledged,
granted,bargained,sold,aliened,mica/fed,relcared,conveyed and confirmed and by these present,'do
•
grant, bargain,sell,alien,rn fro)f.relciae.rourey,end confirm unto the said parties of
the emceed part their heirs and assigns, •
AUthat certain lot of land lying south of Mill Street on the eastern side of
Mountain Creek in the Borough of M.. Holly Springs, Cumberland County, Pe>ttnsylvania,
{1 bounded and described as followst
.] BEGI?5tING at a point in the center of said Mountain creek, said point being one
JS hundred eighteen and three-tenths (118.3) feet from the southeast abutment. of the
bridge carrying Mill Street over said Creek; thence by land of the Borough of
? Mount folly Springs or a Ball .i.ssociation, South eighty-four (84) degrees forty-
1 five (45) minutes east, one h•mdred fifty-seven and tteo-tenths (157,2) feet to a
• stoke; thence by lands now or formerly of Charles Peffer, south thirty-seven (37)
S degrees fifteen (15) trinuter east, two hundred one and oight-tenths (201.8) feet
• to a post; thence by lands sow or formerly of Millicent Sitaniller, south fifty-
five (55) degrees west, tw, hundred fifty-five (255) feet to a point in the center
of Mountain Creek; thence by the center of Mountain Creek, north twelve (12) degrees
fifteen (15) minutes west, three hundred twenty-five (325) feet to a point, the
r PLAN Oc IIEGIN.LING. .
i • .
CONPBIMING one and fourteen hundredths (1.14) acres, more or less.
( . BanICO27 PACE 133
•
03/25/2008 7.7:45 7172490026 AA ABSTRACT PAGE 04/24
aEitiG the same premises which were conveyed unto the grantors herein by.deed of
David S. McRazland dated stay 24, 1961 and recorded in the Office of the Recorder
of Deeds in and for Cumberland county in Decd Book , Volume , Page •
AND SLING the same premises which were conveyed by Theodore A. Tichy and Annie Lee •
Tichy, his wife, by Quit Claim Deed on the 25th of ray. 1961 and recorded in the
Office of the Recorder of Deeds in Cumberland County in Deed gook Z, Volume 20,
, Page 1081, resolving a conflict between the said chy's and Sheaffer's.
t "' COMMONWEALTH Or PENNSYLVANl/•.=
( - DEPARTMENT OF REVENUE, .
7 )?
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r' T"S r.2,:144 3 6 0 a O i-
•9l,naifiA IIt4-T17 +.+:x3dr
7AX
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Oucrtetirrr with all and singular,the tenements, hereditamenta and appurtenance* to the same
belonging tor in anywise appertaining,and the reversion and rrrre/dons, remainder and remainders,
rents,issues,and profits thereof; )nth sips all the estate,right,title,interest,property,claim •
I and demand whatsoever,both in law and equity,of the said parries of the first part,of,in,to
or out of the said premises,and every port and petrel Ili/leaf f
i
1
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d QJ,l Iitu>r nub to Halal the said premi.,rs,tritlt alt and singatar the appurtenances,unto
the said part ies of the second port, their heirs and ataignx,to and fee the only proper
use and behalf of alto said parties. of the second part, their heirs and assigns
(arcccr, ,
t _
1 At 7515 SAID Grantors, their
i
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• heirs,etetuiors and administrators,do -by abase presents,Corenant,grant grad agree to clod
with tae said parties of the second part, their hairs and
assigns,that tha said Grantors, their •
•
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heirs all and aingutar the hercditamcnts and premiux berrinahoec described and granted or mentioned,
t and intended so to he,via appurtenances,ammo the said part ies of the:remind part, their
�' heirs and ausignt,against the oniut part ieci of the first port end their hero anti against ail
g and every other person or persons whomsoever,lawfully claiming or to claim the same or any port
thereof, shall and wilt,by these presents,t;'dft/Ltih'T A,VD'cm-
S
EVER DEFEND
i ' an 3.1It ngss 311 rrRtt the said part ie4 of the first part hate
hereunto set their hands and scat a the day and year first above written. •
f? 74 (SEAL; •
• Paul L. Sheaffer
I (SEAL)
ISigned, Sealed and Delivered jSF(SEAL;in the ease of loie S. Sheaf fer
d
f .. .. . .r _...._ _ (SEAf,1 .
71t,(.:.�""'� nbrp : �`10 ».-.,-- ... .,...__. (SEAL) •
6oroagh of �•
Comb. Co Pe. Schaal Dist. C um 6, Co., pc, __....__...._. .. .....__............. ...... .... (SEAL,)
.....(is Real Fd.i.Transfer Teo Eatm.Ts.n,fer T. ...-,....._...................._........_.....-_.....-....._..... (SeILT,/
hi� _ a . /, :
o.,. t i,mi . A . ,,. .......°I;nT..t.'d' ..-. .,-_...-._......._._...._...__.._ ....... (SELL)tif
(,ice/ k ( t� _... (sE4L)
k Carob.Co.Mat.CaL AO,' rr.CeL AVLAS 60oxO;2'7 PACE 134
•
03/25/2008 17:45 7172490026 AA ABSTRACT PAGE 05/24
. , .
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litCOfft•ft-irqtE or THE
RECOROER'-'r Csre33 ,
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‘ Coli-IIONWEALTII OF PILYYSYLVANIA
28: .
1 COUNTY OF .....Cuattahtlaald. } .
. •
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On this,the................__day of .324.5.4".011V-17.-,... ... ...... . 1122, before ,w
• A No Notary Public....4/1...fla.4.„..tra...44144.-STATZ-aud...C.02,11TX--.---,the understped
officer,personally appeared Paul L. shcAffpx..,aniti_iaia..s,....shAaffor,_ –...—
.4 .
known to ne(or antisfoNority promo to?Pr the person 1?.--....-.- Whode name
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the within inetrttteetil.and arknoieledtted that t?ItY reented the na4 •102ktheiikifp:o,ie
; i *. .? •=,''; ..-e•:-...,-. .
therein con Wino?. • -,.••;;■ .,:.....,,e-,4 _r ..::;!. ',•
IN irtnrEss WIIESSOF.I herr:tato dal my mind and of'c7).1.L. ..,, --e,4.-.44,, ypx„,•ri..24.Ty::ei
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• .115 commtssion czp Ors: .. ...a:1$14441.;P.;i:.;t•ti::etgYr.41:....
. . I hereby certify that the Precise Residence a/the Grantee,in the within Deed,ilf•to....a••.. •-...
3. E ,.-4-.:, %)ei,4,..A,..c- '''a•ccz..p.-4-v ,., —_ -... - .
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-0071.1 WEALTO OF PENNSYLVANIA •
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Nrcarbrh In the for Recording of Deeds, Mortgages, et.e., in sad
.
for the County f......r.4.,r-keeize-4,1,0"1 Deed Book 0 Vol. ,::..fr . ,
; 1 Page,Z3J.. .
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-,' • !Vitra. , ly Hand and Seal of Office, this 7-7,74. day of
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.. ....6e,e--ii-t.--(A-e,t? Anno Domini 19 77
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Exhibit "B"
02/19/2008 19:03 FAX 7174860165 P a 00
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100 YEAR FLOOD 546 •• $ry' '� ! / i} EXISTING SANITARY SEWER l Air
--- #�`��''+•►,,/� f ,<,�;-, • •• ,*" ..,�- EXtSfiNG PUBLIC WATER Sf.F
.0:1'1'. f /./..'\\ 't /. 440,..itt 4 ,,,,..„milk, _
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TROPERTY PLAN i- 20 �too, N\ / p,"P 41:1, . , .,\,..:40.4,,..‘.:*:. :. •
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2- TOTAL AREA, 0.9185 Acre:25,652 \ .c�k. `a Syr•Z.
PUBLIC SEWER .1,r s ••
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ZONING DATA \'1, . w� ,r'•
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-PR(} SI? CONSTRUCTION: tca YFAR Fz o0o say`` ��;, — ,/ ��
•THREE TOWNHOUSES(For Singla-Fovmily I,I•se) tf -.. .4,
8.1111REE UNITS PER TOWNHOUSE • Qo_ a�t•
G:•,(z*) STUAT FRAM CONSTRUCTION r4 ,, ,,�
O.EACU UNIT,A MINIMUM 16•F PONT,32 DEPTH fir. fi d
E.T4YQ PARKING SPACES PER UNIT \ //�,.
i,ZONft4G REUIREMENT(PER TDWNrioUsE) PAopogFn ' —-�-"
a. 1.0T AREA MtW 1VM 2,600 S Liiii_V„.1917.27 �f:I.ot 5.2430.le:Lot 8=2000sof \\ /''.5- .LOT YIPTH ,dk...--
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Exhibit "C"
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Mark W. Allshouse, Esquire
Attorney ID#78014
4833 Spring Road
Shermans Dale, PA 17090
(717)582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt, : IN THE COURT OF COMMON PLEAS
husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs .
•
v. .
•
James H. Slyder and Mary C. Slyder, : NO. 08-3439 CIVIL TERM
husband and wife, .
and .
Emmanuel Papamarkakis and : JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, : CIVIL ACTION - LAW
Defendants .
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been duly served upon the
following, by depositing a copy of the same in the United States Mail, first-class, postage
prepaid, as follows:
Douglas C. Lovelace, Jr., Esquire
36 Donegal Drive
Carlisle, PA 17013
Hubert X. Gilroy, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Date: � 2L� 3 � iG,
i .r
. ' llshouse,Esqu' e
Attorney I.D. # 78014
4833 Spring Road
Shermans Dale,PA 17090
7 (717) 582-4006
Attorney for Plaintiffs
10
'Ell i' GL 110,14041P5R
CUl,917RLAND COUNTY
LEROY F. SHILDT, III and LINDA K. IN THE COURT OF COMMON PLEAS
SHILDT, husband and wife CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
V.
CIVIL ACTION—IN LAW
JAMES H. SLYDER and MARY C. SLYDER,
husband and wife
and CIVIL TERM
EMMANUEL PAPAMARKAKIS and NO. 2008-3439
JESSICA PAPAMARKAKIS, husband and
wife
NOTICE TO PLEAD
To: Leroy F. Shildt and Linda K. Shildt
C/o
Mark W. Allshouse, Esquire
4833 Spring Road
Shermans Dale, PA 17090
You are hereby notified to plead to the within New Matter, within twenty days from
service hereof, or a default judgment may be entered against you.
Very respectfully,
Date: July 22, 2013 DOUGLAS C. LOVELACE, JR., Esquire
Attorney Identification Number: 83889
36 Donegal Drive
Carlisle, PA 17013
(717) 38S-1866
Attorney for Defendants Papamarkakis
_ L 11
i•r ioi_ i'`El Ud'`d j f•S1 !j
13 AL 22 PN 12; �
PENINSYL VlaNG%
LEROY F. SHILDT, III and LINDA K. IN THE COURT OF COMMON PLEAS
SHILDT, husband and wife CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
V.
CIVIL ACTION—IN LAW
JAMES H. SLYDER and MARY C. SLYDER,
husband and wife
and CIVIL TERM
EMMANUEL PAPAMARKAKIS and NO. 2008-3439
JESSICA PAPAMARKAKIS, husband and
wife
Defendants
DEFENDANTS EMMANUEL PAPAMARKAKIS AND JESSICA PAPAMARKAKIS
ANSWER WITH NEW MATTER TO AMENDED COMPLAINT
AND NOW come Defendants Emmanuel Papamarkakis and Jessica Papamarkakis, by
and through their attorney, Douglas C. Lovelace, Jr., Esquire, and file this Answer with New
Matter to Plaintiffs'Amended Complaint, setting forth as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted, as corrected to read Deed Book 27 "O" 133, containing approximately 1.14
acres, more or less.
5. Admitted in part and denied in part. Defendants Papamarkakis admit that Defendants
i'
Slyders are owners of certain real property abutting Shildts'property on the east. Defendants
Papamarkakis deny Slyders are the owners of Lots 1-6. As way of further answer, Defendant
Slyder is the owner of one half of the parcel of land referred to as a former "paper alley," which
is the subject of this litigation and which forms the southeastern border of the Slyder property.
As way of further answer, Defendants Papamarkakis deny that the partial copy of Slyders'
Subdivision Plan attached as Exhibit "B" to Plaintiffs'Amended Complaint is pertinent to this
action, since it fails to depict Slyders'and Papamarkakis'ownership of the former "paper alley,"
which is the subject of this litigation .
6. Admitted in part and denied in part. Defendants Papamarkakis admit that their
property meets Shildts'property only at Shildts'southeasterly corner. However, Defendants
Papamarkakis disagree with Shildts, as to the location of the point at which the properties meet.
Defendants Papamarkakis admit that their property abuts the Slyder property at its southern
boundary. Defendants Papamarkakis deny that their property is accurately described as "Lot 7"
of the Slyder Subdivision Plan. By way of further answer, Defendants Papamarkakis'property
can be accurately described as former "Lot 7" of the Slyder Subdivision Plan,plus that land
described in Quit Claim Deed executed October 29, 2007 and identified by tax parcel number
23-32-2336-093.
7. Admitted in part and denied in part. Defendants Papamarkakis admit that their
property includes the former "Lot 7" of the Slyders'Subdivision Plan. However the
Papamarkakis property also includes that land described in Quit Claim Deed executed October
29, 2007 and identified by tax parcel number 23-32-2336-093. The remainder of Plaintiffs'
averment is a conclusion of law to which no response is required under the Pennsylvania Rules
of Civil Procedure. In the event, and to the extent the remainder of Plaintiffs'averment is not
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considered a conclusion of law, Defendants Papamarkakis deny their rights pertinent to this
litigation were derived from their being a successor in interest to Defendants Slyder.
8. Denied. The former "paper alley" which is the focus of this litigation, is a stub of an
alley laid out on an unrecorded Plan of Town Lots for Mount Holly Springs, in the 19th Century.
The "paper alley's" description was carried forward as a boundary marker on subsequent deeds of
conveyance, depicted as being sixteen (16)feet in width and a segment of approximately 100
feet in length running between adjacent property to the west and Orange Street to the east. The
aforementioned adjacent property to the west, now the lands of Plaintiffs,was not part of the
Plan of Town Lots and, therefore, the "paper alley" did not enter or affect Plaintiffs'land.
By way of further answer, Defendants Papamarkakis and Slyders memorialized their respective
ownership in fee of the said 16 feet wide "paper alley," by exchanging and recording the
aforementioned quit claim deeds.
9. Denied. The former 16 feet wide "paper alley" was never opened nor made a public
way by the Borough of Mount Holly Springs. By way of further answer, the Borough of Mount
Holly Springs maintains only a maintenance easement for the underground sanitary sewer
easement that runs beneath the former "paper alley," such easement being memorialized and
widened to a twenty-foot sewer easement at the request of Mount Holly Springs Borough, as a
condition to the Borough concurring with the aforementioned quite claim deeds exchanged by
Defendants Papamarkakis and Slyders. By way of further answer, the Borough of Mount Holly
Springs has not made and does not make any claim that the former "paper alley" has been made a
public way or thoroughfare. In fact the Borough of Mount Holly Springs has affirmatively stated
it has no interest in the former "paper alley" beyond the maintenance easement for the
underground sanitary sewer that runs beneath the former "paper alley." By way of further
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answer, the maps listed by Plaintiffs show the location of the sanitary sewer line and specifically
not the location of a public way or thoroughfare through the former "paper alley."
10. Denied. On the contrary, the Borough of mount Holly Springs only very
infrequently exercised the sanitary sewer line easement it retains for the sewer line that runs
beneath the former "paper alley." By way of further answer, the Borough of mount Holly
Springs use of the said easement has been so infrequent that Plaintiffs installed a locked gate
astride the ground above the sewer line on the southeast boundary of Plaintiffs'property
approximately where it meets Defendants Papamarkakis'property.
11. Admitted in part and denied in part. Defendants Papamarkakis admit that the
borough of Mount Holly Springs has taken no formal action,within the required twenty-one year
period of time, to adopt and accept dedication of the former "paper alley," which is the subject of
this litigation. Plaintiffs deny that Plaintiffs Shildts or Blair and White obtained any interest in
the former "paper alley" as adjoining landowners. Defendants Papamarkakis deny that Plaintiffs
or Blair and White, or their grantors, have ever been adjoining property owners landowners with
respect to the former "paper alley." On the contrary, Defendants Papamarkakis and Slyders are
the adjoining landowners and formalized their respective acquisitions in fee of the said 16 feet
wide "paper alley," by exchanging and recording quit claim deeds in 2007,with the concurrence
of the Borough of Mount Holly Springs.
12. Denied as stated. The never opened former "paper alley" is not a public right-of-
way. By way of further answer, Plaintiffs have and never have had any rights with respect to the
former "paper alley." Therefore it is sophistry for Plaintiffs to aver they have not abandoned
rights they never had.
13. Denied. Plaintiffs have not continuously and regularly used the former "paper alley"
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for a period in excess of twenty-one years.
14. Denied. Defendants Papamarkakis and Slyders have acted independently toward
their respective portions of the former "paper alley." On information and belief, Defendants
Papamarkakis aver that Slyders temporarily blocked their portion of the former "paper alley" as
necessary to construct town-homes adjacent to the former "paper alley." Defendants
Papamarkakis, as owners in fee, have appropriately denied and objected to Shildts'trespass on
their land. By way of further answer, Defendants Papamarkakis have never obstructed or in any
way inhibited the Borough of Mount Holly Springs'exercise of the sewer maintenance easement
Defendants Papamarkakis granted the Borough.
I. Shildt v. Slyder
15. Defendants Papamarkakis incorporate by reference their responses in paragraphs 1
through 14, as though set forth at length herein.
16. Denied. Shildt has not maintained adverse, open, continuous, and uninterrupted use
of the former "paper alley," which is the subject of this litigation. By way of further answer,
Defendants Papamarkakis deny that the former "paper alley" runs along the southern border of
the Plaintiffs'property. By way of further answer, Defendants Papamarkakis aver that the
former "paper alley" ceased to exist before Plaintiffs acquired their property.
17. Denied as stated. To the extent that Plaintiffs characterize "use" as that use averred
in paragraph 16 of their Amended Complaint, Defendants Papamarkakis deny such use.
Defendants Papamarkakis admit that they have objected to Plaintiffs'trespasses on Defendants
Papamarkakis'property.
18. Denied as stated. To the extent that Plaintiffs characterize "use" as that use averred
in paragraph 16 of their Amended Complaint, Defendants Papamarkakis deny such use. By way
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of further answer, the elevation of the front and rear of Plaintiffs'property is essentially the
same, characterized generally by a slight, gentle slope from front to rear. Defendants
Papamarkakis deny any implication by Plaintiffs that they are unable to access the rear of their
property due to differing elevation. By way of further answer, Plaintiffs presently accesses the
rear of their property conveniently on the northeasterly side and such access is much more
convenient than accessing the rear of their property by crossing Defendants Papamarkakis'land.
By way of further answer,Plaintiffs'garage has a vehicle-size garage door in the front and in the
rear of the garage. The rear garage door was installed specifically to afford Plaintiffs the most
direct and convenient access possible to the rear of their property.
19. Denied. To the extent that Plaintiffs'use of the word "property" refers to the former
unopened "paper alley," a portion of which now is Defendants Papamarkakis'land, Defendants
Papamarkakis deny the uses Plaintiffs aver and demand proof at trial.
20. Admitted in part and denied in part. Defendants Papamarkakis admit that Plaintiffs,
in an act of trespass, spread a token amount of stone or gravel along a portion of the trace of the
former "paper alley," in an illegal attempt to assert ownership of the former "paper alley."
Defendants Slyder subsequently removed as much of such stone and gravel, as he was able.
Defendants Papamarkakis deny all remaining aspects of this averment, in that no cartway or
other public thoroughfare over the former "paper alley" has ever been created, and because any
use of the former "paper alley" by Plaintiffs was infrequent and sporadic, if at all.
21. Denied. To the contrary, Plaintiffs'expressed purpose for using Defendants
Papamarkakis'land, makes Plaintiffs'use intrusive to Defendants Papamarkakis, as the owners of
the land and would deny Defendants Papamarkakis the quiet use and enjoyment of the immediate
side-yard of their residential dwelling.
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22. Denied. To the contrary, no public use easement existed at the time Slyders
purchased the property, and no signs or indications of travel or traffic across the then vacant land
were apparent to Seller or Purchaser.
23. Denied. Slyders were aware of the existence of the underground sewer line that ran
beneath the former "paper alley;" however, Slyders could not have been aware of any public use
easement over the former "paper alley" because none existed.
24. Admitted in part and denied in part. Defendants Papamarkakis admit the former
"paper alley" was not situated on enclosed woodland. Defendants Papamarkakis deny the
existence of any public use easement over the former "paper alley."
25. Denied. With no public right of way in existence and, therefore, none marked,
Defendants Papamarkakis deny Plaintiffs used the entire sixteen feet of the former "paper alley,"
which was located in a large, vacant field. By way of further answer, since the former "paper
alley" was not marked, Defendants Papamarkakis believe and therefore aver that Plaintiffs could
not have known whether they traversed the entire former "paper alley" or some other portion of
the open field.
26. Denied. Plaintiffs aver an incorrect conclusion of law to which no response is
required under the Pennsylvania Rules of Civil Procedure. However, in the event and to the
extent Plaintiffs' averment is not determined to be a conclusion of law, Defendants Papamarkakis
aver that Plaintiffs are prescriptive easement claimants only. No prescriptive easement has been
established, created, obtained, or acquired as a result of Plaintiffs'averments herein. In fact,
neither municipal nor federal aerial photographs nor any other evidence reveal any indications of
usage of the former "paper alley" beyond evidence of Mount Holly Springs'installation and one
or two repairs of the underground sanitary sewer line running beneath the former "paper alley."
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Depositions of three separate, disinterested witnesses who continually viewed the field in which
the former "paper alley" was proposed to be located confirmed that Plaintiffs did not use the
former "paper alley" before Slyder purchased the field. Deponents included the previous owner
of the field he sold to Slyders. He and his family owned the field for over 60 years,before
selling it to Slyders. He managed the rooming house adjacent to the field, mowed the field, and
was never aware of an adjacent owner's use of the vacant land. His testimony has been
reinforced by information derived from the canvassing of other neighbors and the postman.
WHEREFORE, Defendants Papamarkakis respectfully request that this Honorable Court
dismiss Plaintiffs'Amended Complaint, enter judgment in favor of Defendants and against
Plaintiffs and grant Defendants other relief, as the Court deems just and proper.
I. Shildt v. Papamarkakis
27. Defendants Papamarkakis incorporate by reference their responses in paragraphs 1
through 26, as though set forth at length herein.
28. Denied. Shildt has not maintained adverse, open, continuous, and uninterrupted us
of the former "paper alley" which is the subject of this litigation. By way of further answer,
Defendants Papamarkakis deny that the former "paper alley" runs along the southern border of
the Plaintiffs'property. By way of further answer, Defendants Papamarkakis aver that the
former "paper alley" ceased to exist before Plaintiffs acquired their property.
29. Denied as stated. To the extent that Plaintiffs characterize "use" as that use averred
in paragraphs 16 and 28 of their Amended Complaint, Defendants Papamarkakis deny such use.
Defendants Papamarkakis admit that they have objected to Plaintiffs'trespasses on Defendants
Papamarkakis'property.
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30. Denied as stated. To the extent that Plaintiffs characterize "use" as that use averred
in paragraphs 16 and 28 of their Amended Complaint, Defendants Papamarkakis deny such use.
By way of further answer, the elevation of the front and rear of Plaintiffs'property is essentially
the same, characterized generally by a slight, gentle slope from front to rear. Defendants
Papamarkakis deny any implication by Plaintiffs that they are unable to access the rear of their
property due to differing elevation. By way of further answer, Plaintiffs presently access the rear
of their property conveniently on the northeasterly side and such access is much more convenient
than accessing the rear of their property by crossing Defendants Papamarkakis'land. By way of
further answer, Plaintiffs'garage has a vehicle-size garage doors in the front and the rear of
Plaintiffs'garage installed specifically to afford Plaintiffs the most direct and convenient access
possible to the rear of their property.
31. Denied. To the extent that Plaintiffs'use of the word "property" refers to the former
unopened "paper alley," which now is Defendants Papamarkakis'land, Defendants Papamarkakis
deny the uses Plaintiffs aver and demand proof at trial.
32. Admitted in part and denied in part. Defendants Papamarkakis admit that Plaintiffs,
in an act of trespass, spread a token amount of stone or gravel along a portion of the trace of the
former "paper alley," in an illegal attempt to assert ownership of the former "paper alley."
Defendants Slyder subsequently removed as much of such stone and gravel, as he was able.
Defendants Papamarkakis deny all remaining aspects of this averment, in that no cartway or
other public thoroughfare over the former "paper alley" has ever been created, and because any
use of the former "paper alley" by Plaintiffs was infrequent and sporadic, if at all.
33. Denied. To the contrary,by Plaintiffs'expressed purpose for using Defendants
Papamarkakis'land, Plaintiffs'use would be intrusive to Defendants Papamarkakis as the owners
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of the land and would deny Defendants Papamarkakis the quiet use and enjoyment of the
immediate side-yard of their residential dwelling.
34. Denied. To the contrary, no public use easement existed at the time Defendants
Papamarkakis purchased their property, and no signs or indications of travel or traffic across the
then vacant land were apparent to Seller or Purchaser.
35. Denied. Defendants Papamarkakis were made aware at some point of the existence
of the underground sewer line that ran beneath the former "paper alley;" however, Defendants
Papamarkakis could not have been aware of any public use easement over the former "paper
alley" because none existed.
36. Admitted in part and denied in part. Defendants Papamarkakis admit the former
"paper alley" was not situated on enclosed woodland. Defendants Papamarkakis deny the
existence of any public use easement over the former "paper alley."
37. Denied. With no public right of way in existence and, therefore, none marked,
Defendants Papamarkakis deny Plaintiffs used the entire sixteen feet of the former "paper alley,"
which was located in a large,vacant field. By way of further answer, since the former "paper
alley" was not marked, Defendants Papamarkakis believe and therefore aver that Plaintiffs could
not have known whether they traversed the entire former "paper alley" or some other portion of
the open field.
38. Denied. Plaintiffs aver an incorrect conclusion of law to which no response is
required under the Pennsylvania Rules of Civil Procedure. However, in the event and to the
extent Plaintiffs'averment is not determined to be a conclusion of law, Defendants Papamarkakis
aver that Plaintiffs are prescriptive easement claimants only. No prescriptive easement has been
established, created, obtained, or acquired as a result of Plaintiffs'averments herein. In fact,
10
neither municipal nor federal aerial photographs nor any other evidence reveal any indications of
usage of the former "paper alley" beyond evidence of the Borough of Mount Holly Springs'
installation and one or two--time repair of the underground sanitary sewer line running beneath
the former "paper alley." Depositions of three separate, disinterested witnesses,who continually
viewed the field in which the former "paper alley" was proposed to be located, confirmed that
Plaintiffs did not use the former "paper alley" before Slyder purchased the field. Deponents
included the previous owner of the field he sold to Slyders. He and his family owned the field
for over 60 years before selling it to Slyders. He managed the rooming house adjacent to the
field, mowed the field, and was never aware of an adjacent owner's use of the vacant land. His
testimony has been reinforced by information derived from the canvassing of other neighbors
and the postman.
WHEREFORE, Defendants Papamarkakis respectfully request that this Honorable Court
dismiss Plaintiffs'Amended Complaint, enter judgment in favor of Defendants and against
Plaintiffs and grant Defendants other relief, as the Court deems just and proper.
III Shildt v. Slyder
Declaratory Relief/Request for Iniunction
39. Defendants Papamarkakis incorporate by reference their responses in paragraphs 1
through 38, as though set forth at length herein.
40. Denied. To the contrary, Plaintiffs have no right to cross Slyders'land. No easement
in favor of Plaintiffs has been established across Slyders'land. Any obstacles due to Defendants
Slyders'activities have been the result of the exigencies of staging for ongoing construction
work, vice interference with Plaintiffs intrusions.
41. Admitted in part, denied in part, as related to Paragraph 40 above. Defendants
Papamarkakis admit only that large equipment has been used on site for construction purposes;
11
trenches have been dug for emplacing underground utility lines, and trenches left open
temporarily for required inspection purposes; and piles of materials have been positioned on site
for convenience in construction work. All remaining aspects of this averment are denied.
42. Denied. To the contrary, Slyder's activities have been in the line of business to
achieve a higher and better use of his real estate, as approved by the Borough of Mount Holly
Springs. Plaintiffs have not attained any legal use of any easement over Slyder's land, and
Plaintiffs rejected Slyders'offer to furnish reasonable accommodation at no expense to Plaintiffs,
as a reasonable alternative to litigating this matter.
43. Admitted in part, denied in part. It is admitted only that in the initial
processing for subdivision approval; Defendant Slyder acknowledged in a public forum
that he had no present intention of blocking the "paper alley." Underlying his intention
at that time and his subsequent performance in the establishment of a formal utility
easement by agreement with the municipality,was his intent to forever ensure clear Mount
Holly Springs Borough access to the underground sewer line to enable remedy of contingencies.
Subsequent revisions of the subdivision plan,which have been duly approved, included some
use of the "paper alley" for side yard setback allowances. By way of further answer, Plaintiffs
installed a locked gate astride the ground beneath which the underground sewer line runs at the
portion of Plaintiff's land through which Plaintiffs claim the "paper Alley" runs, all the while
claiming that Defendants Slyders blocked the former "paper alley" that Plaintiffs now
inconsistently claim extends along Plaintiffs'southern boundary. Defendants Papamarkakis
deny all remaining aspects of this averment, for the reasons previously set forth.
44. Denied. Plaintiffs have not obtained any prescriptive interest in Slyder's land as a
claimant. By way of further answer, Plaintiffs have no right of use of the former "paper alley"
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that Plaintiffs admit was never opened and actually abandoned by the Borough of Mount Holly
Springs. By way of further answer, neither Plaintiffs nor their grantors were ever abutting
landowners of the "paper alley," which was laid-out in the Plan of Town Lots and, therefore,
never accrued any rights of use of the former "paper alley." Defendants Papamarkakis further
aver that Plaintiffs misapply Ferko v. Spisak,541 A.2d. 327 (1988), since Ferko clearly
provides that only lot owners in the original subdivision plan that laid-out the proposed street,
who bought and owned lots that abutted the proposed street, and their grantees, accrued a right
to use the street, even if it was never accepted and opened by the municipality. The right of
such abutting lot owners to use the street derives from contractual rights and obligations
between Buyer and Seller, and not by prescription or action of the municipality. Since
Plaintiffs'land was never part of the Plan of Town Lots, Plaintiffs cannot claim any right of
use under Ferko,nor under its authoritative predecessors, Rahn v. Hess,378 Pa. 264, 106 A.2d.
461 (1954) and Riek and Mindyas v. Binnie,352 Pa. Super. 246,507 A.2d. 856 (1986). By
way of further answer,it is sophistry for Plaintiffs to aver they have done nothing to waive
rights they never had.
45. Admitted in part and denied in part. Defendants Papamarkakis admit Plaintiffs
seek a declaratory judgment. Defendants Papamarkakis deny Plaintiffs have any right to cross
Slyder's land and deny that any public use easement across Slyder's land exists. Defendants
Papamarkakis aver that the only easement that exists across Slyder's land is the sanitary sewer
access easement he granted the Borough of Mount Holly Springs in 2007.
46. Denied. Defendants Papamarkakis deny any vexatious and bad faith conduct by
either Slyder or Defendants Papaamakkakis. To the contrary, Plaintiffs initiation and
maintenance of this baseless litigation has been patently vexatious and conducted in bad faith,
13
as a means for Plaintiffs retaliating against Slyder for developing his land, notwithstanding
Plaintiffs'overt opposition.
WHEREFORE, Defendants Papamarkakis respectfully request that this Honorable Court
dismiss Plaintiffs'Amended Complaint, enter judgment in favor of Defendants and against
Plaintiffs and grant Defendants other relief, as the Court deems just and proper.
III Shildt v. Papamarkakis
Declaratory Relief/Request for Iniunction
47. Defendants Papamarkakis incorporate by reference their responses in paragraphs 1
through 46, as though set forth at length herein.
48. Admitted in part, denied in part. It is admitted only that Plaintiff has asserted a right
to use Defendants Papamarkakis'land, and that Defendant Papamarkakis has indeed exercised
his ownership rights to quiet use and enjoyment in preference to acceding to Plaintiffs'illegal
demands. All other aspects of this averment as to Plaintiffs right of use are denied.
49. Admitted in part, denied in part. It is admitted only that Defendant Papamarkakis has
very infrequently parked his car in his yard. All other aspects of this averment are denied. On
the contrary, Defendant Papamarkakis has been exposed to loud,prolonged, profane and obscene
language directed toward him by Plaintiff and his family members.
50. Denied. Plaintiffs have not obtained any prescriptive interest in Defendants
Papamarkakis'land as a claimant. By way of further answer, Plaintiffs have no right of use of
the former "paper alley" that Plaintiffs admit was never opened but actually abandoned by the
Borough of Mount Holly Springs. By way of further answer, neither Plaintiffs nor their grantors
were ever abutting landowners of the "paper alley," which was laid-out in the Plan of Town Lots
and, therefore, never accrued any rights of use of the former "paper alley." Defendants
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Papamarkakis further aver that Plaintiffs misapply Ferko v. SRisak, 541 A.2d. 327 (1988), since
Ferko clearly provides that only lot owners in the original subdivision plan that laid-out the
proposed street,who bought and owned lots that abutted the proposed street, and their grantees
accrued a right to use the street, even if it was never accepted and opened by the municipality.
The right of such abutting lot owners to use the street derives from contractual rights and
obligations between Buyer and Seller, and not by prescription or action of the municipality.
Since Plaintiffs'land was never part of the Plan of Town Lots, Plaintiffs cannot claim any right
of use under Ferko, nor under its authoritative predecessors, Rahn v. Hess, 378 Pa. 264, 106
A.2d. 461 (1954) and Riek and Mindyas v. Binnie, 352 Pa. Super. 246, 507 A.2d. 856 (1986).
Therefore, it s sophistry for Plaintiffs to aver that have done nothing to waive rights they never
had.
51. Denied. Defendants Papamarkakis deny any vexatious and bad faith conduct by
either Slyder or Defendants Papamarkakis. To the contrary, Plaintiffs initiation and maintenance
of this baseless litigation has been patently vexatious and conducted in bad faith, as a means for
Plaintiffs to retaliate against Slyder for developing his land, notwithstanding Plaintiffs'overt
opposition.
52. Admitted in part and denied in part. Defendants Papamarkakis admit Plaintiffs seek
a declaratory judgment. Defendants Papamarkakis deny Plaintiffs have any right to cross
Defendants Papamarkakis'land and deny that any public use easement across Defendants
Papamarkakis'land exists. Defendants Papamarkakis aver that the only easement that exists
across Defendants Papamarkakis'land is the sanitary sewer access easement they granted to the
Borough of Mount Holly Springs in 2007.
53. Denied. Defendants Papamarkakis deny any vexatious or bad faith conduct. To the
15
contrary, Plaintiffs initiation and maintenance of this baseless litigation has been patently
vexatious and conducted in bad faith, as a means for Plaintiffs to retaliate against Slyder for
developing his land, notwithstanding Plaintiffs'overt opposition. By way of further answer,
Defendant Papamarkakis has been exposed to loud,prolonged,profane and obscene language
directed toward him by Plaintiff Shildt and his family members.
WHEREFORE, Defendants Papamarkakis respectfully request that this Honorable Court
dismiss Plaintiffs'Amended Complaint, enter judgment in favor of Defendants and against
Plaintiffs and grant Defendants other relief, as the Court deems just and proper.
V. Shildt v. Slyder
Trespass and Conversion
54. Defendants Papamarkakis incorporate by reference their responses in paragraphs 1
through 53, as though set forth at length herein.
55. Denied. After reasonable investigation,Defendants Papamarkakis are without
knowledge or belief sufficient to form a belief as to the truth of this averment and, therefore, the
same is denied.
56. Denied. After reasonable investigation, Defendants Papamarkakis are without
knowledge or belief sufficient to form a belief as to the truth of this averment and, therefore, the
same is denied.
57. Denied. After reasonable investigation, Defendants Papamarkakis are without
knowledge or belief sufficient to form a belief as to the truth of this averment and, therefore, the
same is denied.
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58. Denied. After reasonable investigation, Defendants Papamarkakis are without
knowledge or belief sufficient to form a belief as to the truth of this averment and, therefore, the
same is denied.
59. Denied. After reasonable investigation, Defendants Papamarkakis are without
knowledge or belief sufficient to form a belief as to the truth of this averment and, therefore, the
same is denied.
60. Denied. After reasonable investigation, Defendants Papamarkakis are without
knowledge or belief sufficient to form a belief as to the truth of this averment and, therefore, the
same is denied.
61. Denied. After reasonable investigation, Defendants Papamarkakis are without
knowledge or belief sufficient to form a belief as to the truth of this averment and, therefore, the
same is denied.
62. Denied. After reasonable investigation, Defendants Papamarkakis are without
knowledge or belief sufficient to form a belief as to the truth of this averment and, therefore, the
same is denied.
63. Denied. After reasonable investigation, Defendants Papamarkakis are without
knowledge or belief sufficient to form a belief as to the truth of this averment and, therefore, the
same is denied.
64. Denied. After reasonable investigation, Defendants Papamarkakis are without
knowledge or belief sufficient to form a belief as to the truth of this averment and, therefore, the
same is denied.
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WHEREFORE, Defendants Papamarkakis respectfully request that this Honorable Court
dismiss Plaintiffs'Amended Complaint, enter judgment in favor of Defendants and against
Plaintiffs and grant Defendants other relief, as the Court deems just and proper.
NEW MATTER
65. Defendants Papamarkakis incorporate by reference their responses in paragraphs 1
through 64 as though set forth at length herein.
66. The former "paper alley" which is the focus of this litigation is a stub of an alley laid
out on an unrecorded Plan of Town Lots for Mount Holly Springs, in the 19th Century. The
"paper alley's" description was carried forward as a boundary marker on subsequent deeds of
conveyance, depicted as being sixteen(16)feet in width and a segment of approximately 100
feet in length running between adjacent property to the west and Orange Street to the east.
67. The aforementioned adjacent property to the west, now the lands of Plaintiffs, was
not part of the Plan of Town Lots.
68. Since the aforementioned adjacent property to the west, now the lands of Plaintiffs,
was not part of the Plan of Town Lots, the "paper alley" did not enter or abut Plaintiffs'land.
69. Having never been accepted nor opened by the Borough of Mount Holly Springs,
this "paper alley," by operation of law, reverted to ownership in fee between its adjoiners, to the
north and to the south, after 21 years.
70. Defendants Papamarkakis is the aforementioned adjoiner to the south and
Defendants Slyders is the adjoiner to the north.
71. On or about October 29, 2007, the aforementioned adjoiners executed and exchanged
quit claim deeds each memorializing ownership of half of the former "paper alley."
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72. In agreeing to the execution and exchange of the quit claim deeds, the Borough of
Mount Holly Springs requested the aforementioned adjoiners to grant by deed a sanitary sewer
easement in favor of the Borough of Mount Holly Springs, which the adjoiners did.
73. During a Mount Holly Springs Borough Council meeting conducted on or about
December 12, 2005, in response to a question posed by Plaintiff Leroy Shildt, the Council
informed all present, including Plaintiff Shildt, that the "paper alley" is not owned by the
Borough, is private property, and is not a public street of the Borough. Plaintiff Shildt did not
object to the Borough's determinations regarding the "paper alley."
74. By letter dated April 14, 2008, Plaintiffs'counsel informed Defendants that the
Borough of Mount Holly Springs had abandoned the former "paper alley" and that ownership of
the former "paper alley" was vested in Defendants Papamarkakis and Defendants Slyders.
Nonetheless, Plaintiffs'counsel asserted that Plaintiffs had earned a prescriptive easement over
the former "paper alley" through adverse, open, continuous notorious, and uninterrupted use for a
period in excess of 21 years.
75. Pennsylvania law provides that any street, lane or alley, laid out in a village or town
plot or plan of lots that is not opened within 21 years for public use by the municipality shall
have no force and effect and shall not be opened, without the consent of the owners of the land
on which the street, lane or alley had been laid out. 36 P.S. § 1961 (2013) (Unopened ways or
streets on towns plots).
76. The Borough of Mount Holly Springs did not open the aforementioned "paper alley,"
within 21 years of it being laid out.
77. Since the Borough of Mount Holly Springs did not open the aforementioned "paper
alley," within 21 years of it being laid out, any public right of way that might have been created
19
was extinguished,by operation of Pennsylvania law.
78. Pennsylvania case law, Rahn v. Hess, 378 Pa. 264, 106 A.2d. 461 (1954); Ferko v.
Snizak , 373 Pa. Super. 303, 541 A.2d. 327 (1988); and Riek and Mindyas v. Binnie, 352 Pa.
Super. 246, 507 A.2d. 856 (1986), provides that even where a street or alleyway had not been
opened for over 21 years, the original owners of lots within the plan of lots that abut the street or
alleyway, and their grantees, accrue a permanent right to use the unopened street or alleyway.
The key point is the original owners and their grantees must have owned lots in the plan of lots;
in this case, "The Plan of Town Lots."
79. The Pennsylvania Supreme Court has held in In re City of Altoona, 479 Pa. 252, 258;
388 A.2d. 313, 315-16, (quoting Horsham Township v. Weiner, 435 Pa. 35, 41, 255 A.2d 126,
129 (1969)) that dedication of land occurs when an owner of property offers it for public use and
it is accepted by or on behalf of the public. Superior Court has held, in Vendetti Appeal, 181 Pa.
Super. 214, 124 A.2d. 448 (1956), for there to be a complete dedication, there must be an offer of
dedication and acceptance.
80. Acceptance on behalf of the public must occur with 21 years of the offer of
dedication, or the street may not be opened for use by the public without the consent of 51% of
the abutting landowners,based on a front foot basis, in accordance with 53 P.S. § 46724 (2013).
81. Following the dedication of a street, there must be an acceptance by the municipality
or use by the public within twenty one years; otherwise, the land reverts to the abutting
landowners, as held by Pawlowski v. Borough of Barnesboro, 118 Pa. Cornrow. 375; 545 A.2d.
965 (1987).
82. Acceptance by the municipality may be express such as by resolution or implied such
as actual opening of the street by actually grading and constructing the street, as provided in 53
20
P.S. § 46701 and held in Tobin v Radnor Township Board of Comm'rs, 142 Pa. Commw. 567,
581; 597 A.2d. 1258, 1265 (1991).
83. Even an express dedication of a street and a formal expression of acceptance such as
a resolution do not cause the street to become a public thoroughfare, unless they are
accompanied by physical opening or unequivocal authoritative actions by the municipality
demonstrating its intention to accept the street, as the Court held in Tobin v. Radnor Township
Board of Commissioners.
84. In Lillo v. Kay, 704 A.2d. 149 (1997), Pa. Super. LEXIS 3853, Superior Court stated
that mere formal acceptance of the dedication of a street (or other area for that matter) that exists
only on paper does not render the accepted area (street, sidewalk, etcetera)public. Rather, under
such circumstances, offer and acceptance of the dedication is akin to a municipality plotting or
laying out the street.
85. In . Lillo v. Kay, Superior court held that in order for a dedicated paper street to
become a public thoroughfare, it is necessary to demonstrate that the street is actually opened by
the municipality or used by the general public. A paper street can become a public way where
there has been evidence of substantial use by the general public,but mere occasional use or
inconsequential acts, is not sufficient to convert a dedication into a public way.
86. The laying out of a street,without opening same, shall create no right to public use of
such street, in accordance with 53 P.S. § 46723.
87. Mere installation of a sewer line on a dedicated street does not constitute the opening
of the street required to consummate dedication, as the Court held in Tobin v. Radnor Township
Board of Commissioners.
88. Clearing trees and shrubbery and occasional mowing of grass does not constitute the
21
opening of the street required to consummate dedication, as the Court held in Borough of
Lehijzhton v. Katz, 75 Pa. Commw. 388, 462 A. 2d. 889 (1983).
89. In Shamokin v. Helt, 250 Pa. 80; 95 A. 2d. 385 (1915), the Pennsylvania Supreme
Court held that a street offered for dedication becomes a public street only to the extent to which
it is actually used or opened.
90. The burden of proving the existence of a public highway is on one claiming its
existence to prove acceptance by the municipality by clear and convincing evidence. Where the
facts are undisputed, the question of acceptance is one of law, as held in Elliott v. H. B.
Alexander&Son, Inc., 41 Pa. Commw. 184; 399 A.2d. 1130.
WHEREFORE, Defendants Papamarkakis respectfully request that this Honorable Court
add the foregoing information to the factual and legal bases for discounting Plaintiffs erroneous
justifications for taking Defendants'land, dismiss Plaintiffs'Amended Complaint, enter
judgment in favor of Defendants and against Plaintiffs and grant Defendants other relief, as the
Court deems just and proper.
Respectfully submitted
I� e t-�Wr
Date: July 22, 2013 Lovelace,Jr.,Esquire
36 Donegal Drive
Carlisle, PA 17013
ID No. 83889
(717)385-1866
Attorney for Defendants Papamarkakis
22
LEROY F. SHILDT, III and LINDA K. IN THE COURT OF COMMON PLEAS
SHILDT, husband and wife CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
V.
CIVIL ACTION—IN LAW
JAMES H. SLYDER and MARY C. SLYDER,
husband and wife
and CIVIL TERM
EMMANUEL PAPAMARKAKIS and NO. 2008-3439
JESSICA PAPAMARKAKIS,husband and
wife
Defendants
VERIFICATION
The undersigned do hereby verify, subject to the penalties of 18 Pa. C.S.A. § 4904,
relating to unsworn falsification to authorities,that the facts and circumstances set forth in the
foregoing Defendants'Papamarkakis'Answer to Plaintiffs'Complaint with New Matter are true
and correct to the best of their knowledge, information, and belief.
Date:
Emmanuel Papamarkakis
Defendant
Jssica Paparnarkakis'
ssi P
efendant
LEROY F. SHILDT,III and LINDA K. IN THE COURT OF COMMON PLEAS
SHILDT, husband and wife CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
V.
CIVIL ACTION—IN LAW
JAMES H. SLYDER and MARY C. SLYDER,
husband and wife
and CIVIL TERM
EMMANUEL PAPAMARKAKIS and NO. 2008-3439
JESSICA PAPAMARKAKIS, husband and
wife
Defendants
CERTIFICATE OF SERVICE
1, Douglas C. Lovelace, Jr., attorney for Defendants Emanuel Papamarkakis and Jessica
Papamarkakis hereby certify that on July 22, 2013 1 served a true and correct copy of the
foregoing Defendants'Papamarkakis'Answer to Plaintiff's Complaint with New Matter upon the
below named individual by depositing the same in the United States mail, first class,postage
prepaid, at Carlisle, Cumberland County, Pennsylvania.
SERVED UPON:
Mark W. Allshouse, Esquire
4833 Spring Road
Sherman Dale, PA 17090
Attorney for Plaintiff
C A-
Douglas 65��7
C. Lovelace, Jr., Esquire
Attorney Identification Number: 83889
36 Donegal Drive
Carlisle, PA 17013
(717)385-1866
Attorney for Defendants Papamarkakis
4 . F:\FILES\Clients\9965 Slyder\9965.2\99652.Preliminary Objections2.wpd
Hubert X. Gilroy, Esquire
MARTSON DEARDORFF WILLIAMS & OTTO
I.D. 29943
10 East High Street
Carlisle, PA 17013 7013 JUL 26 PM 2: 0
(717) 243-3341
CUMBERLAND COUNTY
Attorneys for Defendants PENNSYLVANIA
i
LEROY F. SCHILDT, III, and : IN THE COURT OF COMMON PLEAS OF
LINDA K. SCHILDT, husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v. : NO. 2008-3439
: CIVIL ACTION - LAW
JAMES H. SLYDER and
MARY C. SLYDER, husband and wife
•
•
and
•
EMMANUEL PAPAMARKAKIS and
•
JESSICA PAPAMARKAKIS,
•
husband and wife,
•
Defendants
PRELIMINARY OBJECTIONS
Defendants, James H. Slyder and Mary C. Slyder, by their attorneys, Martson Law Offices,
sets forth the following:
1. The above action involves the ownership of and rights to a sixteen foot wide
unopened alley.
2. Count I of the Complaint involves a claim against Defendants James H. Slyder and
Mary C. Slyder (Defendants Slyder) requesting the Court to enter an Order
confirming Plaintiffs' right to the unopened alley.
3. Count III of the Complaint is titled"Declaratory Relief/Request for Injunction"and
seeks an Injunction to prevent Defendants Slyder from blocking or preventing
Plaintiffs' use of the unopened alley"together with punitive damages."
4. Punitive damages are not an appropriate remedy in a Declaratory Judgment Action
involving title to and use of property.
5. The allegations set forth in Plaintiffs' Complaint do not form the basis for awarding
punitive damages.
WHEREFORE,Defendants Slyder request Your Honorable Court to issue an Order striking
the claim for punitive damages in this case.
MARTSON LAW OFFICES
Bye• iiA
Hubert X. Gilroy, Esqui
10 East High Street ,
Carlisle, PA 17013
(717) 243-3341
Attorneys for Defendants
Dated: July , 2013
Mark W.Allshouse Esquire `
Attorney ID#7so1a
4833 Spring Road
Shermans Dale,PA 17090 '` ;-jjG _2 AM t C G
(717)582-4006 r�lr'i B ERL/,�N0 C0Ut4 T Y
Attorney for Plaintiffs €'EN°'SYLVAt"'A
Leroy F. Shildt, III and Linda K. Shildt, IN THE COURT OF COMMON PLEAS
husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
James H. Slyder and Mary C. Slyder, NO. 08-3439 CIVIL TERM
husband and wife,
and
Emmanuel Papamarkakis and JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, CIVIL ACTION - LAW
Defendants
PLAINTIFFS' REPLY TO DEFENDANTS PAPAMARKAKIS' NEW MATTER
TO PLAINTIFFS' AMENDED COMPLAINT
AND NOW, come Plaintiffs, Leroy F. Shildt, III and Linda K. Shildt, by and through
their attorney, Mark W. Allshouse, Esquire, and respectfully file this Reply to New Matter to
Amended Complaint as follows:
65. Denied. Paragraph 65 of Defendants' New Matter is a paragraph of incorporation
to which no response is necessary. In the event a response is necessary,paragraph 65 and the
incorporated paragraphs are denied.
66. Denied as stated. While it can be agreed that the alley is shown on the Plan of
Town Lots for Mount Holly Springs and its description carried forward as boundary markers for
deeds,thereafter, the Borough of Mount Holly informally adopted said alley for use by the
Mount Holly Springs Borough and/or Mount Holly Springs Water Authority, which alley is
clearly depicted on the adopted Mount Holly Springs Planning Map, Land Use Map and Street
Map, as well as the Mount Holly Springs Sewer Easement Map.
67. Denied. The paper alley or stub of alley clearly extends onto Plaintiffs' land and
Defendants have presented no evidence that that parcel or tract was not part of the Plan of Town
Lots. Strict proof thereof is demanded at the time of trial if deemed necessary. The fact that
Plaintiffs' property was not part of the Plan of Town Lots is irrelevant.
68. Denied. The paper alley or stub of alley clearly extends onto Plaintiffs' land and
Defendants have presented no evidence that that parcel or tract was not part of the Plan of Town
Lots. Strict proof thereof is demanded at the time of trial if deemed necessary. The fact that
Plaintiffs' property was not part of the Plan of Town Lots is irrelevant.
69. Denied. Paragraph 69 is a conclusion of law to which no response is required.
By way of further response, while Mount Holly Springs may not have taken official action to
open the alleyway and as a result, fee ownership would have reverted to the adjoining tracts after
twenty-one (21) years; it is denied that the alleyway was not accepted and controlled by the
Borough of Mount Holly Springs as is evidenced by the numerous official plans and maps
adopted by the Borough and Mount Holly Springs Sewer Authority as set forth in paragraph 9 of
Plaintiffs' Complaint.
70. Admitted. By way of further response, as the alley extended beyond the
properties of Defendants Papamarkakis and Defendants Slyder as the alley as adopted and
utilized by the Borough extended beyond the properties of Defendants Papamarkakis and
Defendants Slyder, Plaintiffs Shildt were an additional adjoinders to the north and Blair/White
were additional adjoinders to the south.
71. Denied as stated. On October 29, 2007 Defendants Papamarkakis and Defendants
Slyder attempted to execute documents and exchange Quit Claim Deeds in an attempt to clarify
ownership of the paper alley. By way of further response, it is denied that these actions in any
way effected the rights of Plaintiffs as Plaintiffs were not a party to those Deeds.
72. Denied. After reasonable investigation, Plaintiffs are without knowledge or
belief as to the truth of the averment contained in paragraph 72. Strict proof thereof is demanded
at the time of trial if deemed relevant.
73. Admitted in part and denied in part. It is admitted that at the time of hearing the
paper alley was not owned in fee by the Borough of Mount Holly Springs and that if the Borough
never having taken formal action to open the paper alley, it reverted to private property. It is
denied that any assertion by the Mount Holly Springs Borough Council in any way effected the
rights of Plaintiffs Shildt to travel across the private property, Shildt having had their rights
established by previous Borough actions.
74. Admitted. By way of further response, abandonment of Mount Holly Springs of
the former paper alley investing a fee ownership by Defendants Papamarkakis and Defendants
Slyder does not divest Plaintiffs of their rights of prescriptive easement, nor of their rights of law
to continued use of the previous public access easement.
75. Denied. Paragraph 75 is a conclusion of law to which no response is required.
By way of further response, the statute cited applies to use by the public at large and serves in no
way to extinguish the rights of the adjoining landowners of continuous use of a previously
adopted public access easement.
76. Admitted. By way of further response, without formally opening, the Borough of
Mount Holly Springs, did, in fact, informally adopt and utilize the aforementioned alley as a
public access easement and, as such, established Plaintiffs' rights as an adjoining landowner for
continued use thereof despite later abandoning said easement or executing documents with
Defendants with regard to an access easement.
77. Denied. Paragraph 77 is a conclusion of law to which no response is necessary.
By way of further response, the Borough of Mount Holly Springs informally adopted the access
easement and utilized it. By way of further response, although the general public's right-of-way
to use such access easement may have been extinguished by subsequent actions of Mount Holly
Springs or Mount Holly Sewer Authority, those actions did not extinguish the separate rights of
adjoining landowners to that previously adopted public access easement as established by
Pennsylvania case law.
78. Admitted. By way of further response,the informal adoption and continued use
by Mount Holly Springs Borough or Mount Holly Springs Sewer Authority is the basis for
Plaintiffs' rights, and as a result, the case law cited herein is likely not relevant to determining
Plaintiffs' rights which are derived from a wholly different legal concept.
79. Denied. Paragraph 79 is a conclusion of law to which no response is necessary.
Strict proof is demanded if deemed relevant at the time of trial.
80. Denied. Paragraph 80 is a conclusion of law to which no response is necessary.
Strict proof is demanded if deemed relevant at the time of trial.
81. Denied. Paragraph 81 is a conclusion of law to which no response is necessary.
Strict proof is demanded if deemed relevant at the time of trial.
82. Admitted.
83. Admitted.
84. Admitted.
85. Admitted.
t
86. Admitted.
87. Admitted. By way of further response, however, additional actions, such as
maintenance and continued utilization and control of said street would meet the definition as set
forth by the Court in the referenced case.
88. Admitted. By way of further response, these actions alone may not demonstrate
adoption of the street as a public right-of-way; however, as numerous Courts have clearly laid
out, there are several factors in reviewing that determination.
89. Admitted.
90. Admitted.
WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in
favor of Plaintiffs and against Defendants together with relief requested in Plaintiffs' Amended
Complaint.
Respectfully submitted,
Date: a�U�
ark W. Allshouse,Es uire
Attorney I.D. # 78014
4833 Spring Road
Shermans Dale,PA 17090
(717) 582-4006
Attorney for Plaintiffs
VERIFICATION
We, Leroy F. Shildt, III and Linda K. Shildt, verify that the statements in the foregoing
document are true and correct to the best of our knowledge, information and belief under
penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities.
Date:
Leroy F. S47ildt, III
Date: I
Linda K. Shildt
Mark W.Allshouse,Esquire
Attorney ID#78014
4833 Spring Road
Shermans Dale, PA 17090
(717)582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt, IN THE COURT OF COMMON PLEAS
husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
James H. Slyder and Mary C. Slyder, NO. 08-3439 CIVIL TERM
husband and wife,
and
Emmanuel Papamarkakis and JURY TRIAL DEMANDED
Jessica Pa p amarkakis, husband and wife; CIVIL ACTION - LAW
Defendants
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been duly served upon the
following, by depositing a copy of the same in the United States Mail, first-class, postage
prepaid, as follows:
Douglas C. Lovelace, Jr., Esquire
36 Donegal Drive
Carlisle, PA 17013
Hubert X. Gilroy, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Date: 1 208�'
ark W. Allshouse,Es re
Attorney I.D. #78014
4833 Spring Road
Shermans Dale,PA 17090
(717) 582-4006
Attorney for Plaintiffs
Mark W. Allshouse,Esquire
Attorney ID#78014
4833 Spring Roads — �
Shermans Dale,PA 17090
(717)582-4006 �ti11°�3 "" agla
r tt�.1=NR`s
Attorney for Plaintiffs1�R'� �L
Leroy F. Shildt, III and Linda K. Shildt, : IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
husband and wife,
Plaintiffs
V.
James H. Slyder and Mary C. Slyder,
NO. 08-3439 CIVIL TERM.
husband and wife,
and
Emmanuel Papam JURY TRIAL DEMANDED
arkakis and : CIVIL ACTION - LAW
Jessica Papamarkakis,husband and wife,
Defendants
PRAECIPE
TO THE PROTHONOTARY:
In response to the Preliminary Objections filed by Defendants Slyder, kindly amend
Plaintiffs' Amended Complaint as follows:
III. Shildt v. Slyder
Declaratory Relief/Request for Iniunction
a. Paragraph 46 shall be omitted.
b. The WHEREFORE clause shall omit any request for punitive damages.
IV. Shildt v. Papamarkakis
Declaratory Relief/Reguest for Iniunction
a. Paragraph 53 shall be omitted.
b. The WHEREFORE clause shall omit any request for punitive damages.
Respectfully submitted,
Date: 7- W. Allshous ,Esquire
Attorney I.D.#7 014
4833 Spring Road
Shernians Dale,PA 17090
(717) 582-4006
Attorney for Plaintiffs
Mark W.Allshouse, Esquire
Attorney ID#78014
48331 Spring Road
Shermans Date,PA 17090
(717)582-4006
Attorney for Plaintiffs
Leroy F. Shildt, III and Linda K. Shildt, IN THE COURT OF COMMON PLEAS
husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
James H. Slyder and Mary C. Slyder, NO. 08-3439 CIVIL TERM
husband and wife,
and
Emmanuel Papamarkakis and JURY TRIAL DEMANDED
Jessica Papamarkakis, husband and wife, CIVIL ACTION - LAW
Defendants
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been duly served upon the
following,by depositing a copy of the same in the United States Mail,first-class,postage
prepaid, as follows:
Douglas C. Lovelace, Jr., Esquire
36 Donegal Drive
Carlisle, PA 17013
Hubert X. Gilroy, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Date: 31-20 6 -"fn�
rk
W.Allshouse,E quire
rney I.D. #7801
4833 Spring Road
Shermans Dale,PA 17090
(717) 582-4006
Attorney for Plaintiffs
THE PRO 1H0 +C 'p
Hubert X. Gilroy, Esquire
2013 OCT `3
MARTSON DEARDORFF WILLIAMS & OTTO P~i 3: 3 5
I.D. 29943 CUMBERLAND COUNTY
10 East High Street PENNSYLVANIA
Carlisle, PA 17013
(717) 243-3341
Attorneys for Defendants
LEROY F. SCHILDT, III, and : IN THE COURT OF COMMON PLEAS OF
LINDA K. SCHILDT, husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v. : NO. 2008-3439
: CIVIL ACTION - LAW
JAMES H. SLYDER and
MARY C. SLYDER, husband and wife :
•
and
EMMANUEL PAPAMARKAKIS and :
JESSICA PAPAMARKAKIS,
husband and wife,
•
Defendants
ANSWER OF DEFENDANTS JAMES H. SLYDER AND MARY C. SLYDERTO AMENDED
COMPLAINT
Defendants, James H. Slyder and Mary C. Slyder, by their attorneys,Martson Law Offices,
sets forth the following in response to the Amended Complaint filed in the above matter:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted in part and denied in part. Admitted that Plaintiffs are owners of a certain
parcel of land at the mentioned address. The exact scope and acreage of Plaintiffs'
land is denied.After reasonable investigation,Defendants are without knowledge of
information sufficient to form a belief as to truth or falsity of said allegation. Proof
thereof is demanded.
5. Admitted. By way of further answer, Defendants Slyder make claim to one half of
a parcel of land referred to as a former "paper alley" which is the subject of this
litigation.
6. Admitted that Defendants Papamarkakis own property at the mentioned address.
Denied that the allegations set forth in the Complaint relative to the exact size of
Defendants Papamarkakis' property are correct.
7. Admitted that Defendants Papamarkakis'property was part of a subdivision done by
Defendant Slyder. Denied that Plaintiff's allegations include all of Defendants
Papamarkakis' land as the allegations do not include land described in a Quit Claim
Deed executed on October 29,2007,and identified as tax parcel number 23-32-2336-
093.
8. Denied. A 16 foot wide alley has never existed. On the contrary, what has existed
is a 16 foot wide unimproved tract of ground that was rarely or sporadically used by
Plaintiffs and was basically a "paper alley" that has reverted in ownership to both
Defendants.
9. Denied. The former"paper alley"was never opened nor made a public way by the
Borough of Mt. Holly Springs.
10. Denied.
11. Admitted that the Borough of Mt. Holly Springs took no formal action to adopt any
municipal streets as laid out on the land in question. Denied that such failure to act
resulted in the Whites or the Shildts obtaining any interest in the property.
12. Denied that Shildt has any interest in the unopened public right-of-way.
13. Denied.
14. Admitted that Defendant Slyder has denied Plaintiffs use of Defendant Slyders' land
I. Shildt v. Slyder
15. No responsive pleading is required.
16. Denied. After reasonable investigation,Defendant Slyder is unable to determine the
truth or falsity of said allegation. Proof thereof is demanded.
17. Denied. After reasonable investigation,Defendant Slyder is unable to determine the
truth or falsity of said allegation. Proof thereof is demanded.
18. Denied. After reasonable investigation,Defendant Slyder is unable to determine the
truth or falsity of said allegation. Proof thereof is demanded.
19. Denied. After reasonable investigation,Defendant Slyder is unable to determine the
truth or falsity of said allegation. Proof thereof is demanded.
20. Denied. After reasonable investigation,Defendant Slyder is unable to determine the
truth or falsity of said allegation. Proof thereof is demanded.
21. Denied. On the contrary, if Shidlt used the land in question it constituted a trespass
on defendant Slyders' land.
22. Denied. After reasonable investigation,Defendant Slyder is unable to determine the
truth or falsity of said allegation. Proof thereof is demanded.
23. Denied that Slyder was aware of any such easement at the time Slyder purchased
their property. In fact, said easement does not exist.
24. Denied. Said allegation constitutes a conclusion of law and no responsive pleading
is necessary.
25. Denied. After reasonable investigation,Defendant Slyder is unable to determine the
truth or falsity of said allegation. Proof thereof is demanded.
26. Denied. Said allegation constitutes a conclusion of law and no responsive pleading
is necessary. By way of further answer,Defendant is without the ability to determine
the truth or falsity of said allegation. Proof thereof is demanded.
WHEREFORE, Defendant Slyders request Your Honorable Court to dismiss Plaintiffs'
Complaint.
II. Shildt v. Papamarkakis
27. Through 38. Defendant Slyders are under no obligation to respond to allegations
relating to a Count solely against Defendants Papamarkakis.
WHEREFORE, Defendant Slyder requests Your Honorable Court to dismiss Plaintiffs'
Complaint.
III. Shidlt v. Slyder
39. No responsive pleading is required.
40. Denied that Plaintiffs have any right to use the alleged easement area. Admitted that
Defendant Slyder would not agree to Plaintiffs propose trespass.
41. Admitted that Defendant Slyder has placed equipment within the unopened alley.
Denied it was done to keep the Plaintiffs from using the alley. Rather, said
equipment was placed there in conjunction with construction on other lands owned
by Defendant Slyder.
42. Denied,Defendant Slyders' actions have been taken in conjunction with their use of
property that they own.
43. Denied. Any statement Defendants Slyder made with respect to interfering with the
easement related to the easement for the sewer easement and nothing in conjunction
with proposed rights of Plaintiff Slyder.
44. Denied that Plaintiff has any rights to waive in connection with the alleged alley way.
45. Admitted that Plaintiff was requesting a declaratory judgment. Denied that such
request is meritorious.
46. Admitted that Plaintiff is seeking punitive damages. Denied that said damages are
appropriate as Plaintiffs have no meritorious claim.
WHEREFORE, Defendant Slyder requests Your Honorable Court to dismiss Plaintiffs'
Complaint.
IV. Shildt v. Papamarkakis
47. Through 53. Defendant Slyders are under no obligation to respond to allegations
relating to a Count solely against Defendants Papamarkakis.
V. Shildt v. Slyder
54. No responsive pleading is required.
55. Admitted that a Sycamore tree was cut down by Defendant Slyder. Denied that said
action was done by entering land owned by Shildt. On the contrary,where the tree was located was
owned by Defendant Slyder, Further denied with respect to the height of the alleged tree and
diameter of the alleged tree. After reasonable investigation, Defendant is without sufficient
knowledge to determine the truth or falsity of said allegation. Proof thereof is demanded.
56. Denied. Defendant Slyder always understood that the tree in question was located
on his land.
57. Denied. Based upon Slyder's position that the tree was on his land,Defendant Slyder
was not concerned with any possible legal action.
58. Denied,the tree in question was located on Defendant Slyder's land. Denied further
that there was any value in the tree or that Defendant Slyder obtained any personal benefit.
59. Denied that the tree in question provided any effective screening of the Shildt
property. By way of further answer, the existing foliage that has grown up since the tree has been
removed provides more of screening barrier than the tree did in the past.
60. Denied, the allegations set forth in paragraph 59 above are incorporated herein by
reference thereto.
61. Denied,Plaintiff Shildt has not suffered any damage in that the tree had no value and
there has been no diminution in value of the real estate owned by Plaintiff as a result of removal of
the tree.
62. Denied. Said allegation is a conclusion of law and no responsive pleading is
required.
63. Denied. Defendant Slyder's action was always taken in good faith based on belief
that the tree in question was located on Defendant Slyder's land.
WHEREFORE, Defendant Slyder requests Your Honorable Court to dismiss Plaintiffs'
Complaint.
MARTSON LAW OFFICES
By
ubert . Gilroy, Esquire
10 East High Street
Carlisle, PA 17013
(717) 243-3341
#3 Attorneys for Defendants
Dated: October , 2013
VERIFICATION
The foregoing Answer is based upon information which has been gathered by my counsel
in the preparation of the lawsuit. The language of the document is that of counsel and not my own.
I have read the Answer and to the extent that the document is based upon information which I have
given to my counsel, it is true and correct to the best of my knowledge, information and belief To
the extent that the content of the document is that of counsel, I have relied upon counsel in making
this verification.
This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities, which provides that if I make knowingly false
averments, I may be subject to criminal penalties.
Ja •- . der