HomeMy WebLinkAbout04-1500IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ROGER D. BREAM and MARY L.
BREAM, C?
Plaintiffs No. 2004- /$'0 L
V. Civil Action - Equity
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the court
your defenses or objections to the claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgment maybe entered against you bythe court without
further notice for any money claimed in the complaint or for any other claim or relief requested by
the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
Lawyer Referral Service
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado
y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su
persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una order
contra usted sin previo aviso o notificacion ypor cualguier queja o alivio que es pedido en la peticion
de demanda. Usted puede perder dinero o sus propiendades o otros derechos importantes para usted.
LLEVE ESTA DEMANDAA UN ABOGADO IMMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SOFICIENTE DE PAGAR TAL SERVICO,
VAYA EN PERSONAL O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION
SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
Cumberland County Bar Association
Lawyer Referral Service
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
& KNIGHT, P.C.
Michael J. Hanft, Esquire
Attorney I.D. No. 57976
James I. Nelson, Esquire
Attorney I.D. No. 91144
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attorney for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ROGER D. BREAM and MARY L.
BREAM, /-T06 ? i.A-1-1 ?Eitr„l
Plaintiffs No.2004-
v. Civil Action - Equity
FRANK MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
COMPLAINT
AND NOW, this 8' day of April, 2004, come the Plaintiffs, Roger D. Bream and Mary L.
Bream, by and through their attorneys, Hanft & Knight, P.C., and file the following Complaint, and
in support thereof aver as follows:
1. Plaintiffs Roger D. Bream and Mary L. Bream are husband and wife and reside at 77
Old Barn Lane, Newville, Upper Frankford Township, Cumberland County, Pennsylvania
(hereinafter called "Bream Lot').
2. Defendants Franklin Magni and Dixie Magni are husband and wife and reside at 99
Old Barn Lane, Newville, Upper Frankford Township, Cumberland County, Pennsylvania
(hereinafter called "Magri Lot 1").
3. Defendants Franklin Magni, Jr., and Lydia A. Magni are husband and wife and reside
at 84 Old Barn Lane, Newville, Upper Frankford Township, Cumberland County, Pennsylvania
(hereinafter called "Magni Lot 2").
4. Pursuant to the Preliminary/Final Subdivision Plan (hereinafter "Subdivision Plan")
recorded in Plan Book 42 at page 87, Plaintiffs' property, Lot Number 1 on the Subdivision Plan,
is the situs of a right-of-way benefitting Defendants' properties, Lot Number 2 and Lot Number 5
on the Subdivision Plan. A copy of the Subdivision Plan is attached hereto as Exhibit "A" and by
reference incorporated herein and made a part hereof as if fully set forth herein.
5. Said right-of-way is a twenty (20) feet-wide gravel lane that begins at Bloserville
Road and runs from Bloserville Road west through several parcels of land before crossing the Bream
Lot and branching off to Magni Lot 1 and Magni Lot 2.
6. On or about February 26, 2002, Defendants informed Plaintiffs of their intent, via
letter from their attorney (a copy of the letter is attached hereto as Exhibit B, and by reference
incorporated herein and made a part hereof as if fully set forth herein), to "make the right of way
more accessible to traffic, to allow better access for emergency vehicles, and to make it a safer
overall and a more usable method of ingress and egress."
7. In the letter attached hereto as Exhibit B and referenced in Paragraph 6, Defendants
expressed their intent to "widen the right of way to its full twenty foot width, dig out a bed, and fill
the same with crushed stone, slate or other appropriate materials," and stated that "this would be
done from where the right of way begins on lot 1 to where the right of way splits, and then
continuing up both halves of the split."
8. In the letter attached hereto as Exhibit B and referenced in Paragraph 6, Defendants
made mention of the porch of Plaintiffs' residence as being too close to the right of way and that, if
Plaintiffs failed to provide "cooperation in increasing and improving the size of the lane,"
Defendants would, "of course, be seeking removal of the porch."
9, Plaintiffs responded to Defendants' letter, referenced in Paragraph 6, via a letter from
their counsel (a copy of said letter is attached hereto as Exhibit C and by reference incorporated
herein and made a part hereof as if fully set forth herein) wherein it was pointed out, inter alia, that
Plaintiffs' porch did not violate any building or use restrictions and that, in fact, Plaintiffs had
obtained a building permit for the porch.
10. Previous actions by Defendants, spanning approximately fifteen (15) years, to include
knowingly mowing and driving over Plaintiffs' property adjacent to the southern boundary of the
right of way, indicate that Defendants seek to expand and alter the contours of the right of way in
a manner that is contrary to the right-of-way as defined in the Subdivision Plan and detrimental to
the property rights of Plaintiffs.
11. The scope and location of the twenty (20) feet-wide right-of-way, as defined in the
Subdivision Plan, should be ascertained by beginning at the southern edge of the right of way, as
it currently exists, and then measuring twenty (20) feet to the north.
12. The right-of-way as described in Paragraph 11 is what has been the right of way and
how the right of way should reasonably be construed in the future.
13. The previously understood parameters of the right of way, whereby the current
southern edge of the twenty (20) feet-wide right-o- way constitutes the intended southern boundary
of the right-of-way, with the right-of-way proceeding twenty (20) feet in width to the north of that
southern boundary, provides Magni Lot 1 and Magni Lot 2 adequate ingress and egress via the use
of motor vehicles.
14. Plaintiffs acknowledge that the maintenance and repairs of said right-of-way are the
responsibility of those who rely upon its existence for ingress and egress to and from their property;
however, Plaintiffs do not consent to the presence on their property of Defendants, or any of their
agents or engineers, to the ends of altering the right-of-way in manner that is contrary to the
provisions of the Subdivision Plan and Plaintiffs' property rights.
15. Plaintiffs have made it known to Defendants, orally as well as in writing (see Exhibit
C, which letter is incorporated herein by reference), that Plaintiffs are not opposed to reasonable
improvements to the right-of-way, provided such improvements do not encroach upon the current
southern boundary of the right of way.
16. The ongoing and unilateral actions undertaken by Defendants and their agents are
contrary to the location and boundary lines of the right-of-way, as specified in the Subdivision Plan,
and beyond the scope of the original intentions of the parties to the grant.
17. The changes proposed byDefendants, and their actions undertaken in pursuit thereof,
amount to an unreasonably increased burden imposed upon Plaintiffs' property.
18. In light of the foregoing, the Plaintiffs are faced with the prospect of irreparable harm
to their property, and the use and enjoyment thereof, that cannot adequately be remedied with
damages.
WHEREFORE, Plaintiffs seek declarative and injunctive relief in the form of an Order by
this Honorable Court:
Declaring that the current southern boundary of the twenty (20) feet right of way
constitutes the southern boundary of the right of way and that the right of way
proceeds twenty (20) feet in width to the north of the southern boundary of the
current lane;
2. Barring Defendants from taking any further actions that encroach upon Plaintiffs'
property along the southern perimeter of the right of way; and
3. Requiring Defendants to reimburse Plaintiffs for costs and expenses of this action,
including reasonable attorney's fees.
Respectfully submitted,
HANPT & KNIGHT, P.C.
Mieh-a8l J. Hanft, Esquire
Attorney I.D. No. 57976
James I. Nelson, Esquire
Attorney I.D. No. 91144
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attorneys for Plaintiffs
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VERIFICATION
ROGER D. BREAM and MARY L. BREAM, VERIFY that the statements set forth in the
attached Complaint are true and correct to the best of their knowledge, information and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. Section 4904
relating to unsworn falsification to authorities.
Date: April 1, 2004 UP
Roger . Bream
LjBr am
Exhibit A
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KARL E. ROMINGER, ESQ.
MARK F. BAYLEY, ESQ.
COPY
February 26, 2002
Roger and Mary Beam
77 Old Barn Lane
Newville, Pa 17241
Certified Mail/Return Receipt
Dear Mr. and Mrs. Beam:
155 SOUTH HANOVER STREET
CARLISLE, PENNSYLVANIA 17013
TEL: 717.241.6070
FAX: 717.241.6878
This letter is to inform you that I represent Frank and Dixie Magni in regards to a right of
way which you share with them. I have taken the liberty of enclosing copies of the plan which
sets out the right of way.
As you can see from the plans and should know from the deed, it is the right of the parties
who use the right of way to maintain the same. In order to make the right of way more accessible
to traffic, to allow better access for emergency vehicles, and to make it a safer overall and a more
usable method of ingress and egress, my client is going to improve the same.
We intend to widen the right of way to its full twenty foot width, dig out a bed, and fill the
same with crushed stone, slate or other appropriate materials. This would be done from where
the right of way begins on lot I (your lot) to where the right of way splits, and then continuing up
both halves of the split.
We do intend to have a surveyor stake out the right of way as it exists on the plan and; on
the deed. Once that right of way is marked off, we intend to begin the modifications outlined:
above. My client notes that you have a bank barn which is close to the right of way. If the plan
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brings the right of way too close to your bank barn, we'd be more than happy to work with you
insomuchas to shifting the right of way to accommodate your barn.
My client has also noted that your porch is in violation of the plan and deed restrictions it
is too close to the right of way. If you are willing to give your cooperation in increasing and
improving the size of the lane to the full extent of right of way, my client will not take issue with
the porch. However, if we are forced to file any legal action to clarify or enforce the right of way,
we will of course be seeking removal of the porch so that the proper set backs are maintained.
2
Finally, my client notes that you have some items stored along the lane and or stacked/
piled near the lane. Obviously, in the next thirty days (30) you will need to remove same, as the
improvements to the right of way will require those items be removed entirely from the right of
way and areas immediately adjacent there to. Failure to move these items may cause additional
expense in improving the right ofway, and/or may require us to seek a court order or
intervention. Again, we wish to handle this matter amicably and therefore do not wish to get the
courts involved.
I ask the you contact my law office through counsel, or that you send a letter confirming
that you have no objection to what we stated in this letter. If I do not hear back from you within
thirty days (30),1 will assume then that you are agreeable to all that is proposed. However, if you
make timely objections or raise issues, we will attempt to address those if possible. We will be
expanding, modifying, and improving the lane. We are entitled to do so, but don't want to do so
in such a way as to cause you any unnecessary inconvenience. That is the purpose of this letter.
I look forward to hearing back from you confirming that you are agreeable. Again, if we
do not hear back from you in thirty days (30) we will assume that you are not agreeable and take
any and all necessary actions including an equity action in the Court of Common Pleas.
-- - Sincerely,
Karl E. Rominger, Esquire
KERjal
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Exhibit C
COPY
HANFT & KNIGHT, PC.
Ar-IORNI Y> & COUNSFLLORS Ai LAW
March 25, 2002
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MICI IAI I. 1. 1'1ANF I
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VIA FACSIMILE (717/241-6878)
& U.S. MAIL
Karl E. Rominger, Esquire
ROMNGER & BAYLEY LAW OFFICES
155 South Hanover Street
Carlisle, PA 17013
RE: Your Client: MAGNI, Frank & Dixie
Our Client: BREAM, Roger & Mary
Our File No. 2648.1
Dear Mr. Rominger:
I placed a call to you on Wednesday, March 13, 2002 to discuss the above-referenced matter.
As of the date of this letter, I have not heard back from you.
t,
Please accept this letter as a follow up to your letter to my clients dated February 26, 2002,
and our telephone conversation last week. Please be advised that I am in a position to respond to
your letter of February 26, 2002 because I have now met with Mr. and Mrs. Bream. Please update
your file as I believe you have them listed as Mr. and Mrs. Beam.
First, please be advised that your clients are not to go onto my clients' property unless they
are on the twenty (20) foot right of way. Please be advised that should your clients enter my clients'
property, other than on the twenty (20) foot right of way, they will be considered defiant trespassers
and my clients will pursue all remedies available to them. Please be advised that my clients will not
consent to your clients or any of their agents or engineers or surveyors to go onto my clients' land.
Having stated the above, please be advised that my clients do not consent to the proposals
referenced in your February 26, 2002 letter. However, my clients are in no way interested in
diminishing your clients' rights in the twenty (20) feet right of way. Thus, my clients propose that
the current southern boundary of the twenty (20) feet right of way as it currently exists be the
southern boundary for the right of way and that the right of way proceed twenty (20) feet in width
to the north of the southern boundary of the current roadway. This description is what has been the
right of way and it is expected that it will continue to be the right of way.
19 BROOKWOOL) AVENUE SUITE 106 CARLISLE. PA 17013-9142
717.249.537) FAR 717.249.0457 VVWW.HANFTLAIVFIRM.C0N1
Karl E. Rominger, Esquire
March 25, 2002
Page Two
Moreover, it is my understand ingthat pursuant to the Subdivision Plan recorded in Plan Book
42 at Page 87, maintenance and repairs of said right of way are to be the responsibility of those who
rely on its existence for ingress and egress. As I understand it, my clients own Lot Number 1 and
your clients own Lot Number 4 and Lot Number 2 on said Subdivision Plan. It is my understanding
that your clients' son owns Lot Number 5 on the Subdivision Plan. Those three (3) owners are the
only property owners that use the right of way for ingress and egress. It is my understanding that the
owner of Lot Number 3 does not use the right of way and thus, would not be responsible for
maintenance and repair. Do you represent your clients' son?
As I understand the right of way, it begins at Bloserville Road and runs from Bloserville
Road Nest through several parcels of land before getting to my clients' land. Is it your clients'
intention to have the right of way made "more accessible to traffic, to allow better access for
emergency vehicles, and to make it a safer overall and a more usable method of ingress and egress"
from Bloserville Road to your clients' driveway? If not, it would seem tome that only widening the
right of way as it pertains to my clients' property does not achieve the stated goal.
Please note that the Subdivision Plan recorded in Plan Book 42 at Page 87 was recorded on
October 20, 1982. At the time the Subdivision Plan was recorded, the pillars that currently exist on
my clients' property were already in existence, as was my clients' house, my clients' bam, and my
clients' fence by the barn. t,
Please be advised that your comment that my clients' porch "is in violation of the plan and
deed restrictions it is too close to the right of way" is not accurate. According to the Upper
Frankford Township Supervisors, my clients' proposed porch does not violate any building or use
restrictions and in fact, my clients have obtained a building permit for same. Please be advised that
the porch will not be constructed to in any way reach the right of way.
On page 2 of your letter, you note that there are some items stored along the lane or stacked
or piled near the lane. Please be advised that my clients have no intention of removing same as those
items (i.e., a com picker) are not within the twenty (20) foot right of way and have been in that same
location since before your clients purchased their property.
Please be advised that I am authorized to accept service on any documents you would file
with the Court of Common Pleas attempting to in any way "expand, modify, or improve" the right
of way. Furthermore, as stated above, my clients consider the right of way to be the southern
boundary of the currently existing gravel road and the twenty (20) feet to the north of same.
Should your clients be interested in improving that right of way, my clients are more than
willing to work with your clients regarding same. However, the owner of Lot Number 5 will also
share in that cost. Having said that, it would appear as though there are three (3) property owners
Karl E. Rominger, Esquire
March 25, 2002
Page Three
that would equally split the cost. Thus, the cost would be divided one-third (1/3) each. Again,
please confirm whether or not you represent the owner of Lot Number 5 for purposes of this right
of way "dispute."
Additionally, should your clients decide to improve the right of way as I have described, it
will need to be done at a mutually convenient time and based on a mutually agreeable understanding
and cost. To that end, I would ask that you specifically advise me of your clients' intentions with
regard to "expanding, modifying, and improving the lane."
Please do not misconstrue the tone of this letter as anything other than my clients frustration
that your clients have continued to pursue this matter over the last fifteen (15) years. Michael
Rundle previously represented my clients against similar claims raised by your clients. My clients
have no intention of denying your clients the use of a twenty (20) foot right of way provided your
clients use the current existing gravel lane as the basis for said right of way. Again, my clients would
consider the southern boundary of the current gravel roadway to be the southern boundary of the lane
and would proceed twenty (20) feet to the north.
I trust this letter is self-explanatory. However, should you have any questions or wish to
discuss this matter further, please do not hesitate to contact me.
It is my sincere hope that this matter can be resolved once and for all so that my clients will
not have to deal with your clients on this matter in the future.
Very truly yours,
HANFT & KNIGHT, P.C.
Michael J. Hanft
MJH/dln
cc: Mr. and Mrs. Roger Bream
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ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
PETITION FOR SURVEY
AND NOW, comes Plaintiffs, by and through their privately retained counsel, Karl E.
Rominger, Esquire and in support of their Petition for Survey aver as follows:
1. A complaint was filed on April 8, 2004 by Plaintiffs.
2. Defendants simultaneous to the filing of their answer have presented this petition.
3. The dispute involves a right-of-way which is recorded in the Cumberland County
Courthouse.
4. Irrespective to the positions of the parties, and irrespective of the underlying issues
there is a recorded right-of-way.
5. The Court sitting in Equity must consider the recorded instrument, and while not
strictly bound the paper right-of-way, a survey laying out the right-of-way would be
beneficial to all parties.
6. Plaintiffs claims in Plaintiffs complaint that the current southern boundary is the
actual southern boundary, and a survey will test this assertion.
7. Defendants assert and believe in their answer, that Plaintiffs are encroaching upon the
right-of-way and otherwise obstructing it.
8. The results of the survey would allow the Court to determine:
(a) where the actual right-of-way lies in the subdivision plan;
(b) how the right-of-way currently used compares to that right-of-way and;
(c) which property owner is being encroached upon or losing property rights to
his or her detriment.
9. Petitioners/Defendants are willing to bare the costs of the survey.
WHEREFORE, Petitioner respectfully request that this :Honorable Court order and
require Plaintiffs to submit to a survey and enjoin them from interfering with the surveyor, and
give the surveyor free access to all of the land and parcels in question without prejudice for
Respondents to hire a surveyor of their own choosing at their own expense.
Date: 1 - - 4 6
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Defendants, do hereby certify that I this day
served a copy of the Petition for Survey upon the following by depositing same in the United
States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows:
Michael J. Hanft, Esquire
19 Brookwood Avenue, Suite 106
Carlisle, PA. 17013
Dated: - --Pi
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Karl E. Rommger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
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ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
NOTICE TO PLEAD
TO: Roger D. Bream and Mary L. Bream
c/o Michael J. Hanft, Esquire
You are hereby notified to file a written response to the enclosed Answer and
Counterclaim within twenty (20) days from service hereof or a. judgment may be entered against
you.
Date:_? /?- G
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
ROGER D. BREAM and MARY L. IN THE COURT OF COMMON PLEAS OF
BREAM, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
NO: 2004-1500 CIVIL ACTION - EQUITY
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
PLAINTIFFS ANSWER TO COMPLAINT
AND NOW, comes Plaintiffs, Luke and Carrie Englebert by and through their counsel,
Karl E. Rominger, Esquire and answers Defendant's New Matter as follows:
1. Admitted.
2. Admitted.
3. Admitted. By way of further answer, 84 Old Barn Lane is owned solely by
answering Defendants, Franklin Magni and Dixie Magni.
4. Admitted insomuchas the subdivision plan recorded, Book 42, Page 87 is the
subdivision plan effecting the lots and estate in question. By way of further answer,
the document speaks for itself.
5. Admitted. By way of further answer, the physical lane is not twenty (20) feet wide at
all portions, nor is it covered with gravel at all portions, but it is agreed that the right-
of-way is twenty (20) feet wide.
6. Admitted.
7. Admitted.
8. Admitted in part and denied in part. It is admitted that answering Defendant sought
cooperation of Plaintiffs, and it is admitted that answering Defendants pointed out to
Plaintiffs that the proposed porch would encroach or could encroach on the right-of-
way, and Plaintiffs should not now complain if in fact the right-of-way is close to the
porch in question, as they had notice of the intent of answering Defendants to widen
said right-of-way.
9. Admitted in part and denied in part. It is admitted that a letter was sent. It is denied
that the material contained in that letter is in fact true, and specific proof of the same
is demanded at trial. By way of further answer, if further answer is required,
township zoning codes, building permits, or other township issues are irrelevant when
dealing with the law of easement and/or deed restrictions.
10. Denied and strict proof of the same is demanded at trial. By way of further answer, if
further answer is deemed required, Defendants seek only to utilize the right-of-way as
defined in the subdivision plan and is duly recorded in the Cumberland County
Courthouse and any attempt to move the right-of-way by Plaintiffs in a way not
consistent with the subdivision plan would be detrimental property rights of
Defendants.
11. Denied and strict proof of the same is demanded at trial. By way of further answer, if
further answer is deemed required, the best way to determine the scope and location
of the twenty (20) foot right-of-way as defined in the subdivision plan would be
ascertained by a professional surveyor.
12. Is a conclusion of law and requires no answer. By way of further answer, if further
answer is deemed required, the right-of-way should be construed as recorded in the
subdivision plan.
13. Denied and strict proof of the same is demanded at trial. By way of further answer if
further answer is deemed required, the previously understood parameters of the right-
of-way were the recorded subdivision plan and Defendants specifically aver and
Plaintiffs admit in paragraph 10, that Defendant has previously utilized all portions of
the right-of-way as recorded, except where Plaintiffs have intentionally placed
obstacles to block ingress and egress over the right-of-way.
14. Conclusion of law and requires no answer. By way of further answer, Defendants do
not seek to utilize property of Plaintiffs except as allowed and as duly recorded in the
subdivision plan.
15. Admitted. By way of further answer, it is denied that there is a current southern
boundary of the right-of-way, and Plaintiffs seek to move the right-of-way to the
detriment of Defendants property.
16. Denied. By way of further answer, it is a conclusion. of law and requires no answer.
17. Denied and strict proof of the same is demanded at trial. By way of further answer,
the actions of Plaintiffs and Plaintiffs position is creating unreasonable burden on
Defendants property rights.
18. Denied and strict proof of the same is demanded at trial. By way of further answer, it
is a conclusion of law and requires no answer and further, there will be no irreparable
harm to either party if the recorded right-of-way is surveyed, staked and utilized as
recorded in the subdivision plan. Any other scenario would impinge upon the
property rights of Plaintiffs or Defendants to their respective detriments should the
right-of-way move from what was originally granted and bargained for.
WHEREFORE, Defendants seek judgment in their favor and against Plaintiffs.
COUNTERCLAIM[
19. Previous paragraphs are incorporated by reference.
20. The actions of Plaintiffs in obstructing of the right-of-way with various and sundry
objects, has been to the detriment of Defendants.
21. Further, Defendants have sought and not been able to obtain a reasonable resolution
to determining the exact location of the right-of-way, insomuchas Plaintiffs have
refused to allow a survey.
22. This Court should order a survey to determine the actual location of the right-of-way,
as recorded in the subdivision plan.
23. It is believed and therefore averred that Plaintiffs have attempted to push the right-of-
way onto the property of Defendants, and therefore gain additional land for Plaintiffs
and remove land from Defendants.
24. The aforementioned activities of Plaintiffs are to the detriment of Defendants
property rights and Defendants thus seek relief.
25. Defendants do not have an adequate remedy at law.
WHEREFORE Defendants seek declarative and injunctive relief in the form of an Order
by this Honorable Court:
1. Declaring the exact location of the right-of-way, its center point, and its boundaries;
after taking into consideration an appropriate survey based upon the recorded
subdivision plan.
2. Barring Plaintiffs from taking any further actions that encroach upon Defendants
property and/or encroach upon the right-of-way itself. or which block the ability of
Defendants to traverse said right-of-way.
3. Require Plaintiffs to reimburse Defendants for costs and expenses of this action,
including reasonable attorney's fees.
4. Whatever other just relief this Court deems appropriate after hearing this matter.
Respectfully submitted,
Date: ROMINGER, BAYLEY & WHARE
r
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Plaintiffs, do hereby certify that I this day
served a copy of the Answer to Complaint upon the following by depositing same in the United
States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows:
Michael J. Hanft, Esquire
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
Dated:
Respectfully submitted,
ROMINGIER, BAYLEY & WHARE
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
APR 2 0 2004
\4-
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
ORDER OF COURT
AND NOW, this day of , 2004, upon
consideration of the within Petition for Survey a hearing is scheduled for the day of
11-44 2004 at&0 o'clock _ m. in Courtroom # at the
Cumberland County Courthouse in Carlisle, Pennsylvania.
By the
Distribution:
Karl E. Rominger, Esquire
Michael J. Hanft, Esquire
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs No. 2004- 1500
V.
Civil Action - Equity
FRANK MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
NOTICE TO PLEAD
TO: FRANK MAGNI, DIXIE MAGNI, FRANKLIN MAGNI, JR., LYDIA A. MAGNI,
and their attorney, KARL E. ROMINGER, ESQUIRE
You are hereby notified to plead to the attached Preliminary Objections within twenty (20)
days from service hereof or a Default Judgment may be entered against you.
Date: May 4, 2004
HANFT & KNIGHT, P.C.
,Nlfhae . Hanft, Esquire
>. No. 57976
James 1. Nelson
Attorney I.D. No. 91144
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Attorneys for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs No. 2004 1500
V.
Civil Action - Equity
FRANK MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
PLAINTIFFS' PRELIMINARY OBJECTIONS
TO DEFENDANTS' ANSWER & COUNTERCLAIM
AND NOW, this 4' day of May, 2004, come the Plaintiffs, Roger D. Bream and Mary L.
Bream (hereinafter referred to as the "Plaintiffs"), by and through their counsel, Hanft & Knight,
P.C., and file the following Preliminary Objections to Defendant's Answer and Counterclaim, and
in support hereof, aver as follows:
PRELIMINARY OBJECTION FOR FAILURE OF A PLEADING
TO CONFORM TO RULE OF COURT
On or about April 19, 2002, the Defendants, Frank Magni, Dixie Magni, Franklin
Magni, Jr., and Lydia A. Magni (hereinafter referred to as the Defendants), filed an Answer and
Counterclaim in the above-captioned matter. A copy of the Defendants' Answer and Counterclaim
is attached hereto as Exhibit "A."
2. The Answer and Counterclaim, referenced in Paragraph 1, wrongly identified that
pleading as "Plaintiffs [sic] Answer to Complaint."
3. Pursuant to Pennsylvania Rule of Civil Procedure 1018, "[e]very pleading shall
contain a caption setting forth the name of the court, the number of the action and the name of the
pleading." (Emphasis added).
4. The Defendants incorrectly named their pleading.
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court grant their
Preliminary Objections and dismiss the Defendants' Answer and Counterclaim for failure to comply
with Pennsylvania Rule of Civil Procedure 1018.
PRELIMINARY OBJECTION FOR FAILURE OF A PLEADING
TO CONFORM TO RULE OF COURT
5. Paragraphs 1 through 4 above are incorporated herein by reference as if fully set
forth herein.
6. Pursuant to Pennsylvania Rule of Civil Procedure 1024, "[e]very pleading
containing an averment of fact not appearing of record in the action or containing a denial of fact
shall state that the averment or denial is true upon the signer's personal knowledge or
information and belief and shall be verified" (Emphasis Added).
Defendants failed to file a Verification with their Answer and Counterclaim.
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court grant their
Preliminary Objections and dismiss the Defendants' Answer and Counterclaim for failure to
comply with Pennsylvania Rule of Civil Procedure 1024.
PRELIMINARY OBJECTION FOR LEGAL INSUFFICIENCY
(DEMURRER)
8. Paragraphs 1 through 7 above are incorporated herein by reference as if fully set
forth herein.
9. The Answer and Counterclaim, referenced in Paragraph 1, incorrectly identifies
said pleading as "Plaintiffs [sic] Answer to Complaint."
10. The Answer and Counterclaim, referenced in Paragraph 1, in its opening
paragraph, incorrectly identifies the parties on whose behalf the pleading is filed as "Plaintiffs,
Luke and Carne Englebert."
11. Attached to the Answer and Counterclaim referenced in Paragraph 1, above, was a
Petition for Survey in the above-captioned matter (hereinafter "Petition"). A copy of the
Defendants' Petition for Survey is attached hereto as Exhibit "B."
12. The opening paragraph of the Petition referenced in Paragraph 8, above, states that
"And Now, comes [sic] Plaintiffs, by and through their privately retained counsel, Karl E.
Rominger, Esquire, and in support of their Petition for Survey aver as follows."
13. The Plaintiffs in the above-captioned matter, Roger D. Bream and Mary L.
Bream, have not filed a Petition for Survey.
14. In light of the errors in the Defendants' Answer & Counterclaim, referenced in
Paragraph 1, above, and the Petition attached thereto, referenced in Paragraph 7, above, the
pleading and petition are legally insufficient.
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court grant their
Preliminary Objections and dismiss the Defendants' Answer and Counterclaim for legal
insufficiency.
Respectfully Submitted,
HANFT &; 4 GHT, P.C.
ichae . Hanft, Esquire
orney I.D. No. 57976
James I. Nelson
Attorney I.D. No. 91144
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
AND NOW, this 4' day of May, 2004, I, James I. Nelson, Esquire, hereby certify that I
have this day served the following person with a copy of the foregoing document, by first class,
United States Mail, postage pre-paid, addressed as follows:
Karl E. Rominger, Esquire
ROMINGER, BAYLEY & WHARE
155 South Hanover Street
Carlisle, PA 17013
HANFT & WGHT, P.C.
,[a6les Nelson, Esquire
Atterrn? .]D. No. 91144
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
F \U.' Foldc Fim Do11\Grnd.20W2649-Ip,dim.obj
EXHIBIT A
I I.
ROGER D. BREAM and MARY L. : IN THE COURT OF COMMON PLEAS OF
BREAM, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
NO: 2004-1500 CIVIL ACTION - EQUITY
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI, h,
Defendants -' _
NOTICE TO PLEAD
TO: Roger D. Bream and Mary L. Bream
c/o Michael J. Hanft, Esquire
You are hereby notified to file a written response to the enclosed Answer and
Counterclaim within twenty (20) days from service hereof or a judgment may be entered against
you.
Date: v
i
Respectfully submitted,
ROMINGE:R, BAYLEY & WHARE
Karl E. Ronringer, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
PLAINTIFFS ANSWER TO COMPLAINT
AND NOW, comes Plaintiffs, Luke and Carrie Englebert by and through their counsel,
Karl E. Rominger, Esquire and answers Defendant's New Matter as follows:
1. Admitted.
2. Admitted.
3. Admitted. Byway of further answer, 84 Old Barn Lane is owned solely by
answering Defendants, Franklin Magni and Dixie Magni.
4. Admitted insomuchas the subdivision plan recorded„ Book 42, Page 87 is the
subdivision plan effecting the lots and estate in question. By way of further answer,
the document speaks for itself.
5. Admitted. By way of further answer, the physical lane is not twenty (20) feet wide at
all portions, nor is it covered with gravel at all portions, but it is agreed that the right-
of -way is twenty (20) feet wide.
6. Admitted.
7. Admitted.
8. Admitted in part and denied in part. It is admitted that answering Defendant sought
cooperation of Plaintiffs, and it is admitted that answering Defendants pointed out to
Plaintiffs that the proposed porch would encroach or could encroach on the right-of-
way, and Plaintiffs should not now complain if in fact the right-of-way is close to the
porch in question, as they had notice of the intent of answering Defendants to widen
said right-of-way.
9. Admitted in part and denied in part. It is admitted that a letter was sent. It is denied
that the material contained in that letter is in fact true, and specific proof of the same
is demanded at trial. By way of further answer, if further answer is required,
township zoning codes, building permits, or other township issues are irrelevant when
dealing with the law of easement and/or deed restrictions.
10. Denied and strict proof of the same is demanded at trial. By way of further answer, if
further answer is deemed required, Defendants seek only to utilize the right-of-way as
defined in the subdivision plan and is duly recorded in the Cumberland County
Courthouse and any attempt to move the right-of-way by Plaintiffs in a way not
consistent with the subdivision plan would be detrimental property rights of
Defendants.
11. Denied and strict proof of the same is demanded at trial. By way of further answer, if
further answer is deemed required, the best way to determine the scope and location
of the twenty (20) foot right-of-way as defined in the subdivision plan would be
ascertained by a professional surveyor.
12. Is a conclusion of law and requires no answer. By way of further answer, if further
answer is deemed required, the right-of-way should be construed as recorded in the
subdivision plan.
13. Denied and strict proof of the same is demanded at trial. By way of further answer if
further answer is deemed required, the previously understood parameters of the right-
of-way were the recorded subdivision plan and Defendants specifically aver and
Plaintiffs admit in paragraph 10, that Defendant has previously utilized all portions of
the right-of-way as recorded, except where Plaintiffs have intentionally placed
obstacles to block ingress and egress over the right-of-way.
14. Conclusion of law and requires no answer. By way of further answer, Defendants do
not seek to utilize property of Plaintiffs except as allowed and as duly recorded in the
subdivision plan.
15. Admitted. By way of further answer, it is denied that there is a current southern
boundary of the right-of-way, and Plaintiffs seek to move the right-of-way to the
detriment of Defendants property.
16. Denied. By way of further answer, it is a conclusion of law and requires no answer.
17. Denied and strict proof of the same is demanded at trial. By way of further answer,
the actions of Plaintiffs and Plaintiffs position is creaking unreasonable burden on
Defendants property rights.
18. Denied and strict proof of the same is demanded at trial. By way of further answer, it
is a conclusion of law and requires no answer and further, there will be no irreparable
harm to either party if the recorded right-of-way is surveyed, staked and utilized as
recorded in the subdivision plan. Any other scenario would impinge upon the
property rights of Plaintiffs or Defendants to their respective detriments should the
right-of-way move from what was originally granted and bargained for.
WHEREFORE, Defendants seek judgment in their favor and against Plaintiffs.
COUNTERCLAIM
19. Previous paragraphs are incorporated by reference.
20. The actions of Plaintiffs in obstructing of the right-of--way with various and sundry
objects, has been to the detriment of Defendants.
21. Further, Defendants have sought and not been able to obtain a reasonable resolution
to determining the exact location of the right-of-way, insomuchas Plaintiffs have
refused to allow a survey.
22. This Court should order a survey to determine the actual location of the right-of-way,
as recorded in the subdivision plan.
23. It is believed and therefore averred that Plaintiffs have attempted to push the right-of-
way onto the property of Defendants, and therefore ;gain additional land for Plaintiffs
and remove land from Defendants.
24. The aforementioned activities of Plaintiffs are to the detriment of Defendants
property rights and Defendants thus seek relief.
25. Defendants do not have an adequate remedy at law.
WHEREFORE Defendants seek declarative and injunctive relief in the form of an Order
by this Honorable Court:
1. Declaring the exact location of the right-of-way, its center point, and its boundaries;
after taking into consideration an appropriate survey based upon the recorded
subdivision plan.
2. Barring Plaintiffs from taking any further actions that encroach upon Defendants
property and/or encroach upon the right-of-way itself, or which block the ability of
Defendants to traverse said right-of-way.
3. Require Plaintiffs to reimburse Defendants for costs and expenses of this action,
including reasonable attorney's fees.
4. Whatever other just relief this Court deems appropriate after hearing this matter.
Respectfully submitted,
ROMINGER, BAYLEY & WHARF
Date:
Karl E. Rorninger, Esquire
155 South Hanover Street
Carlisle, PAL 17013
(717)241-6070
Supreme Court ID # 81924
Attorney for Defendants
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Plaintiffs, do hereby certify that I this day
served a copy of the Answer to Complaint upon the following by depositing same in the United
States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows:
Michael J. Hanft, Esquire
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
Dated:
-- ------------ -
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for :Defendants
EXHIBIT B
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
ORDER OF COURT
AND NOW, this day of
2004,upon
consideration of the within Petition for Survey a hearing is scheduled for the _ day of
2004 at -o'clock m. in Courtroom # at the
Cumberland County Courthouse in Carlisle, Pennsylvania.
By the
Distribution:
Karl E. Rominger, Esquire
Michael J. Hanft, Esquire
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
PETITION FOR SURVEY AND NOW, comes Plaintiffs, by and through their privately retained counsel, Karl E.
Rominger, Esquire and in support of their Petition for Survey aver as follows:
1. A complaint was filed on April 8, 2004 by Plaintiffs.
2. Defendants simultaneous to the filing of their answer have presented this petition.
3. The dispute involves a right-of-way which is recorded in the Cumberland County
Courthouse.
4. Irrespective to the positions of the parties, and irrespective of the underlying issues
there is a recorded right-of-way.
5. The Court sitting in Equity must consider the recorded instrument, and while not
strictly bound the paper right-of-way, a survey laying; out the right-of-way would be
beneficial to all parties.
6. Plaintiffs claims in Plaintiffs complaint that the current southern boundary is the
actual southern boundary, and a survey will test this assertion.
7. Defendants assert and believe in their answer, that Plaintiffs are encroaching upon the
right-of-way and otherwise obstructing it.
8. The results of the survey would allow the Court to determine:
y
(a) where the actual right-of-way lies in the subdivision plan;
(b) how the right-of-way currently used compares to that right-of-way and;
(c) which property owner is being encroached upon or losing property rights to
his or her detriment.
9. Petitioners/Defendants are willing to bare the costs of the survey.
WHEREFORE, Petitioner respectfully request that this Honorable Court Order and
require Plaintiffs to submit to a survey and enjoin them from interfering with the surveyor, and
give the surveyor free access to all of the land and parcels in question without prejudice for
Respondents to hire a surveyor of their own choosing at their own expense.
Date:
-T Respectfully submitted,
ROMINGER, BAYLEY & WHARF
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
ROGER D. BREAM and MARY L. : IN THE COURT OF COMMON PLEAS OF
BREAM, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
NO: 2004-1500 CIVIL ACTION - EQUITY
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Defendants, do hereby certify that I this day
served a copy of the Petition for Survey upon the following by depositing same in the United
States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows:
Michael J. Hanft, Esquire
19 Brookwood Avenue, Suite 106
Carlisle, PA. 17013
Dated: / -F
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Corot ID # 81924
Attorney for Defendants
rn
-o v -
`F i
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
NOTICE TO PLEAD
TO: Roger D. Bream and Mary L. Bream
c/o Michael J. Hanft, Esquire
You are hereby notified to file a written response to the enclosed Defendants Amended
Answer and Counterclaim within twenty (20) days from service hereof or a judgment may be
entered against you.
May 7, 2004 Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
DEFENDANTS AMENDED ANSWER TO
COMPLAINT AND COUNTERCLAIM
AND NOW, come Defendants, Franklin and Dixie Magni, by and through their counsel,
Karl E. Rominger, Esquire and answers Plaintiffs New Matter as follows:
1. Admitted.
2. Admitted.
3. Admitted. Byway of further answer, 84 Old Barn Lane is owned solely by
answering Defendants, Franklin Magni and Dixie Magni.
4. Admitted insomuchas the subdivision plan recorded, Book 42, Page 87 is the
subdivision plan effecting the lots and estate in question. By way of further answer,
the document speaks for itself.
5. Admitted. By way of further answer, the physical lane is not twenty (20) feet wide at
all portions, nor is it covered with gravel at all portions, but it is agreed that the right-
of -way is twenty (20) feet wide.
6. Admitted.
7. Admitted.
8. Admitted in part and denied in part. It is admitted that answering Defendant sought
cooperation of Plaintiffs, and it is admitted that answering Defendants pointed out to
Plaintiffs that the proposed porch would encroach or could encroach on the right-of-
way, and Plaintiffs should not now complain if in fact the right-of-way is close to the
porch in question, as they had notice of the intent of answering Defendants to widen
said right-of-way.
9. Admitted in part and denied in part. It is admitted that a letter was sent. It is denied
that the material contained in that letter is in fact true, and specific proof of the same
is demanded at trial. By way of further answer, if further answer is required,
township zoning codes, building permits, or other township issues are irrelevant when
dealing with the law of easement and/or deed restrictions.
10. Denied and strict proof of the same is demanded at trial. By way of further answer, if
further answer is deemed required, Defendants seek only to utilize the right-of-way as
defined in the subdivision plan and is duly recorded in the Cumberland County
Courthouse and any attempt to move the right-of-way by Plaintiffs in a way not
consistent with the subdivision plan would be detrimental property rights of
Defendants.
11. Denied and strict proof of the same is demanded at trial. By way of further answer, if
further answer is deemed required, the best way to determine the scope and location
of the twenty (20) foot right-of-way as defined in the subdivision plan would be
ascertained by a professional surveyor.
12. Is a conclusion of law and requires no answer. By way of further answer, if further
answer is deemed required, the right-of-way should be construed as recorded in the
subdivision plan.
13. Denied and strict proof of the same is demanded at trial. By way of further answer if
further answer is deemed required, the previously understood parameters of the right-
of-way were the recorded subdivision plan and Defendants specifically aver and
Plaintiffs admit in paragraph 10, that Defendant has previously utilized all portions of
the right-of-way as recorded, except where Plaintiffs have intentionally placed
obstacles to block ingress and egress over the right-of-way.
14. Conclusion of law and requires no answer. By way of further answer, Defendants do
not seek to utilize property of Plaintiffs except as allowed and as duly recorded in the
subdivision plan.
15. Admitted. By way of further answer, it is denied that there is a current southern
boundary of the right-of-way, and Plaintiffs seek to move the right-of-way to the
detriment of Defendants property.
16. Denied. By way of further answer, it is a conclusion. of law and requires no answer.
17. Denied and strict proof of the same is demanded at trial. By way of further answer,
the actions of Plaintiffs and Plaintiffs position is creating unreasonable burden on
Defendants property rights.
18. Denied and strict proof of the same is demanded at trial. By way of further answer, it
is a conclusion of law and requires no answer and further, there will be no irreparable
harm to either party if the recorded right-of-way is surveyed, staked and utilized as
recorded in the subdivision plan. Any other scenario would impinge upon the
property rights of Plaintiffs or Defendants to their respective detriments should the
right-of-way move from what was originally granted and bargained for.
WHEREFORE, Defendants seek judgment in their favor and against Plaintiffs.
COUNTERCLAIM
19. Previous paragraphs are incorporated by reference.
20. The actions of Plaintiffs in obstructing of the right-of-way with various and sundry
objects, has been to the detriment of Defendants.
21. Further, Defendants have sought and not been able to obtain a reasonable resolution
to determining the exact location of the right-of-way, insomuchas Plaintiffs have
refused to allow a survey.
22. This Court should order a survey to determine the actual location of the right-of-way,
as recorded in the subdivision plan.
23. It is believed and therefore averred that Plaintiffs have attempted to push the right-of-
way onto the property of Defendants, and therefore gain additional land for Plaintiffs
and remove land from Defendants.
24. The aforementioned activities of Plaintiffs are to the detriment of Defendants
property rights and Defendants thus seek relief.
25. Defendants do not have an adequate remedy at law.
WHEREFORE Defendants seek declarative and injunctive relief in the form of an Order
by this Honorable Court:
1. Declaring the exact location of the right-of-way, its center point, and its boundaries;
after taking into consideration an appropriate survey based upon the recorded
subdivision plan.
2. Barring Plaintiffs from taking any further actions that encroach upon Defendants
property and/or encroach upon the right-of-way itself, or which block the ability of
Defendants to traverse said right-of-way.
3. Require Plaintiffs to reimburse Defendants for costs and expenses of this action,
including reasonable attorney's fees.
4. Whatever other just relief this Court deems appropriate after hearing this matter.
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Date: May 7, 2004
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
VERIFICATION
KARL E. ROMINGER, ESQUIRE, states that he is the attorney for, Defendants in this
action; that he makes this affidavit as attorney because he has sufficient knowledge or
information and belief, based upon his investigation of the matters averred or denied in the
foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S.
Pa.C.S. §4904, relating to unsworn falsification to authorities.
Date: May 7, 2004
Karl E. Rominger, Esquire
Attorney for Defendants
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
CERTIFICATE OF SERVICE
1, Karl E. Rominger, Esquire, attorney for Plaintiffs, do hereby certify that I this day
served a copy of the Defendants Amended Answer to Complaint upon the following by
depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania,
addressed as follows:
Michael J. Hanft, Esquire
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
Dated: l4? 2 1o6Y
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 24 1 -6070
Supreme Court ID # 81924
Attorney for Defendants
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ROGER D. BREAM and MARY L. IN THE COURT OF COMMON PLEAS OF
BREAM, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
NO: 2004-1500 CIVIL ACTION-EQUITY
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
AMENDED PETITION FOR SURVEY
AND NOW, come Defendants, by and through their privately retained counsel, Karl E.
Rominger, Esquire and in support of their Petition for Survey aver as follows:
1. A complaint was filed on April 8, 2004 by Plaintiffs.
2. Defendants simultaneous to the filing of their answer have presented this petition.
3. The dispute involves a right-of-way which is recorded in the Cumberland County
Courthouse.
4. Irrespective to the positions of the parties, and irrespective of the underlying issues
there is a recorded right-of-way.
5. The Court sitting in Equity must consider the recorded instrument, and while not
strictly bound the paper right-of-way, a survey laying out the right-of-way would be
beneficial to all parties.
6. Plaintiffs claims in Plaintiffs complaint that the cun-ent southern boundary is the
actual southern boundary, and a survey will test this assertion.
7. Defendants assert and believe in their answer, that Plaintiffs are encroaching upon the
right-of-way and otherwise obstructing it.
8. The results of the survey would allow the Court to determine:
(a) where the actual right-of-way lies in the subdivision plan;
(b) how the right-of-way currently used compares to that right-of-way and;
(c) which property owner is being encroached upon or losing property rights to
his or her detriment.
9. Petitioners/Defendants are willing to bare the costs of the survey.
WHEREFORE, Petitioner respectfully request that this Honorable Court Order and
require Plaintiffs to submit to a survey and enjoin them from interfering with the surveyor, and
give the surveyor free access to all of the land and parcels in question without prejudice for
Respondents to hire a surveyor of their own choosing at their own expense.
Date: t 7c cY Respectfullly submitted,
ROMINGER, BAYLEY & WHARE
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, P.A 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
ROGER D. BREAM and MARY L. IN THE COURT OF COMMON PLEAS OF
BREAM, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
NO: 2004-1500 CIVIL ACTION - EQUITY
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
VERIFICATION
KARL E. ROMINGER, ESQUIRE, states that he is the attorney for, Defendants in this
action; that he makes this affidavit as attorney because he has sufficient knowledge or
information and belief, based upon his investigation of the matters averred or denied in the
foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S.
Pa.C.S. §4904, relating to unsworn falsification to authorities.
Date: May 7, 2004 _
Karl E. Rominger, Esquire
Attorney for Defendants
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Defendants, do hereby certify that I this day
served a copy of the Petition for Survey upon the following by depositing same in the United
States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows:
Michael J. Hanft, Esquire
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013
Dated: l 4 ZO
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
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ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
MOTION TO CONTINUE HEARING
AND NOW, comes Franklin and Dixie Magni, Defendants, by and through their
privately retained counsel, Karl E. Rominger, Esquire and in support of their Motion to Continue
Hearing avers as follows:
1. There is a hearing scheduled for May 14, 2004, at 11:00 a.m. in the above captioned
case.
2. Defense counsel is scheduled for trial in Franklin County for the same date.
3. Opposing counsel, James Nelson, Esquire has been contacted and he has no
opposition to the continuance.
WHEREFORE, Defendants respectfully request that the hearing scheduled for May 14,
2004, be rescheduled to another date and time.
Date: May 12, 2004
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Karl'E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION - EQUITY
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Plaintiffs, do hereby certify that I this day
served a copy of the Motion to Continue upon the following by depositing same in the United
States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows:
James Nelson, Esquire
19 Brookwood Avenu
Suite 106
Carlisle, PA 17013
Dated: May 12, 2004
Respectfully submitted,
ROMINGER, BAYLEY & WHARE
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendants
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MAY 13 2004
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs
V.
FRANKLIN MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2004-1500 CIVIL ACTION-EQUITY
ORDER OF COURT
AND NOW, this /'day of !!j!jj d,44 2004, upon consideration of the
within Motion to Continue Hearing, it is hereby ordered and directed that the hearing be
rescheduled to the day of 2004, in Courtroom at
Oq o'clock m. at the Cumberland County Courthouse in Carlisle, Pennsylvania.
By the Court:
Distribution:
/Karl E. Rominger, Esquire
/James Nelson, Esquire
7
40
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs No. 2004- 1500
V.
Civil Action - Equity
FRANK MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
AND NOW, this 16' day of June, 2004, come the Plaintiffs, Roger D. Bream and Mary
L. Bream (hereinafter referred to as the "Plaintiffs"), by and through their counsel, Hanft &
Knight, P.C., and file the following Reply to Defendant's Amended Petition for Survey, and in
support thereof, aver as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied as stated. Where an easement is indefinitely located on definitely described
land and the parties disagree as to its location, as is the case in this instance, a court may determine its
location. Werry v. Sheldon, 24 A.2d 631 (Pa.Super. 1942) [the case is attached hereto as Exhibit "A"
and by reference incorporated herein as if fully set forth herein.) By way of further response, prior to
the Court's determination of the actual location of the right-of-way, a survey will serve no purpose due
to the fact that the right of way is not described in any deed or plan in metes and bounds.
6. Admitted in part, denied in part. It is admitted that the Plaintiffs assert that the
current southern boundary of the right-of-way is the correct and actual boundary of the right-of-way.
It is denied that a survey can determine the correct parameters of the right-of-way due to the fact that
the right of way is not described in any deed or plan in metes and bounds.
7. Denied. The Plaintiffs are without knowledge or information as to the truth of the
averments set forth in Paragraph 7, and said averments are, therefor, denied. The Plaintiffs demand
strict proof of the averments in Paragraph 7.
Denied. It is denied that the results of a survey would:
(a) Determine where the actual location of the right of way lies, since a survey cannot
define a right-of-way that is not described in metes and bounds; the subdivision plan
simply depicts right-of-way with no reference to precise its location.
(b) Determine how the right-of-way as currently used compares to the granted right-of-
way, since a survey that is not based on metes and bounds cannot provide a reference
point as to how current use of the right-of-way compares to the right-of-way depicted
on the plan.
(c) Determine which property owner is being encroached upon or losing property rights
to his or her detriment, due to the fact that a survey that is not based on metes and
bounds cannot resolve these issues. A purpose of the Plaintiffs' Complaint in Equity
is to determine that very question; as stated in Paragraph 5, above, the determination
of the location of the right-of-way is for the Court, not a survey.
9. No response required.
WHEREFORE, the Plaintiffs respectfully request that this Honorable Court deny the
Defendants' Amended Petition for a Survey.
Respectfully Submitted,
HANFT & NIGHT, P.C.
Michael >Hanft, Esquire
mey I.D. No. 57976
James I. Nelson
Attorney I.D. No. 91144
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Attorneys for Plaintiffs
F:Tser FoId Tim Does\Oendocs2004 648-I mply sev wpd
VERIFICATION
ROGER D. BREAM and MARY L. BREAM, VERIFY that the statements set forth in the
attached Reply to Defendant's Amended Petition for Survey are true and correct to the best of their
knowledge, information and belief. I understand that false statements herein are made subject to the
penalties of 18 Pa. Section 4904 relating to unworn falsification to authorities.
Date: ?,Ilrvlbq ? 'Jr/
oge . Bream
L. ream /
CERTIFICATE OF SERVICE
AND NOW, this 16' day of July, 2004, I, James I. Nellson, Esquire, hereby certify that I
have this day served the following person with a copy of the foregoing document, via both hand
delivery and first class, United States Mail, postage pre-paid, addressed as follows:
Karl E. Rominger, Esquire
ROMINGER, BAYLEY & WHARF
155 South Hanover Street
Carlisle, PA 17013
HANFT &: KNIGHT, P.C.
ernes L elson, Esquire
-AftOMEY-T.D. No. 91144
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Exhibit "A"
Page 2 of
24 A.2d 631
(Cite as: 148 Pa.Super. 13, 24 A.2d 631)
H
Superior Court of Pennsylvania.
WERRY ET UX.
V.
SHELDON ET AL.
Feb. 28, 1942.
Appeal No. 8, February term, 1942, from decree of
Court of Common Pleas, Monroe County, at No. 3,
December term, 1939; Samuel E. Shull, President
Judge.
Action by Karl Werry and Emma Werry, his wife,
against Harry A. Sheldon, owner, and Annie S.
Jarvie, predecessor in title, for a declaratory
judgment concerning a grant in a certain deed under
which the plaintiffs claimed the right to use a
private road across the land of Harry A. Sheldon,
free from any interference. From a decree that
plaintiffs were not entitled to a roadway, they
appeal.
Decree reversed, and record remitted for further
proceedings.
West Headnotes
Ill Easements 0=47
141k47 Most Cited Cases
Where an easement is indefinitely located on
definitely described land, if the parties fail to locate
the easement or disagree as to its location, a court
of equity may determine its location.
[2] Declaratory Judgment 0395
118Ak395 Most Cited Cases
Where trial court in declaratory judgment action by
grantees who by express grant in deed were given
right to use a private road across grantor's land,
recognized that there should be a road, but held that
the grant itself was so general that the location of
Page 1
the road could not be fixed, and that extensive proof
failed to show its location, but there was sufficient
evidence in record to locate road for a distance of
approximately 1,000 feet, the Superior Court
referred the case back to the trial court to fix
location of the road.
(3( Easements x30(2)
141k30(2) Most Cited Cases
Grantees' right under deed from grantor to a road
across grantor's realty was not extinguished by
nonuser, in absence of showing that the road was
extinguished by some positive, adverse, and hostile
interference by one claiming that the road had been
extinguished, or that there was a loss of title in
some other way recognized by law.
f4f Easements 0=30(1)
14100(1) Most Cited Cases
An owner of an easement appurtenant to land is not
required to make use of the easement in order to
maintain ownership.
(51 Judgment C'650
228k650 Most Cited Cases
Rights of plaintiffs seeking a declaratory judgment
as to right to use a road across defendants' land by
virtue of a grant in a deed were not "res judicata"
because of a decree in a prior suit in equity by
plaintiffs to restrain interference with plaintiffs' use
of the road on ground of alleged prescriptive right
of way, where decree was to become final unless
exceptions were filed within 10 days, but plaintiffs
filed exceptions within that time, and plaintiffs filed
a petition therein praying leave to amend so as to
claim right of way by grant, and court denied right
to amend without prejudice to any action, since no
"final decree" was entered.
Judgment 0564(1)
228k564(1) Most Cited Cases
Doctrine of its judicata does not apply in absence
of a final judgment or decree.
**631 *14 George T. Robinson and Gearhart &
Copr. C West 2004 No Claire to Orig. U.S. Govt. Works
http://print.westlaw.com/delivery.httnl?dest=atp&dataid=B0055800000010430004636585BB5F5C71622A... 611512002
Page 3 of
24 A.2d 631
(Cite as: 148 Pa.Super.13, 24 A.2d 631)
Robinson, all of Stroudsburg, for appellants.
Russell L. Mervin, of Stroudsburg, for appellees.
Before KELLER, P. J., and CUNNINGHAM,
BALDRIGE, STADTFELD, RHODES, and HIRT,
JJ.
BALDRIGE, Judge.
Karl Werry and Emma Werry, his wife, appellants
herein, seeking a construction of a grant in a certain
deed under which they claim the right to use a
private road across the land of Harry A. Sheldon
free from any interference, filed a petition in the
court below for a declaratory judgment.
After an answer was filed thereto the parties agreed
that the issues involved should be determined on the
basis of the testimony taken at a hearing of a bill in
equity previously filed by the Werrys seeking to
restrain Albert L. Jarvie and Annie S. Jarvie, his
wife, the predecessors in title of Sheldon, the
present owner, from interfering with the Werrys' use
of an alleged prescriptive right of way across the
land then owned by the *15 Jarvies. The learned
court below, after a trial was had, entered a decree
on December 26, 1933, denying the injunction
prayed for and dismissed the bill, which decree was
to become final unless exceptions were filed within
ten days. Within that period the plaintiffs filed
exceptions, but before they were disposed **632 of
the plaintiffs on December 6, 1937, filed a petition
praying leave to amend their bill in equity by
claiming a right of way by grant instead of by
prescription. Defendants filed an answer thereto and
the court below, after argument, on May 20, 1938,
denied plaintiffs the right to amend the bill "without
prejudice to any action at law or equity which
plaintiffs may have had at the time of presenting
their petition to amend."
The next step taken was the filing of the present
petition. The deed, containing a grant upon which
the petitioners base their right to a private road, is
from Frank Van Gordon, respondents' predecessor
in title, to plaintiffs' predecessor in title, Mary T.
Leas, bearing date January 31, 1899, and duly
recorded. It gives and grants to the grantee, her
heirs and assigns "the free and uninterrupted use" of
Page 2
a private road on the grantor's land, situate in
Middle Smithfield Township, and previously owned
by Bamey Decker. The "said private road leading
from the Milford Road to the property of Fred
Overfield and conveyed to him by William
Gunsaules., Administrator ***," The grantee was "to
have the :privilege of dispensing or removing the
gates at each end of said private way or road,
provided she, the said Mary T. Leas, or her heirs or
assigns, erect a good substantial fence along the
side of said road which is now unfenced, and to
keep the same in good repair; the said fence so
constructed) to have placed in it a pair of bars, for
each field as designated by the said Frank Van
Gordon. In. case no fence is constructed the gates
are to remain as they are now."
The respondents' answer to the petition averred that
the grant in the deed upon which petitioners rely is
ineffective *16 because it is too indefinite as to the
location of the road. They averred by way of new
matter that the issues involved were determined in
the equity proceeding and are now res adjudicata,
and further that the plaintiffs had lost by nonuser
any rights they might otherwise have had.
The petitioners filed a reply to the new matter. The
case was argued before Shull, P. J., who denied
petitioners' prayer on the ground that although there
was evidence of a roadway across respondents' land
for upwards of 70 years it has been ambulatory. The
court recognized that it was clearly the intention of
the parties that there should be a roadway, but held
that the grant itself was so general that the location
of the roadway could not be fixed, and that the
extrinsic proof offered failed to show its location.
The court accordingly decreed that the petitioners
were not entitled to a roadway. From that decree
this appeal was taken.
That there was a grant of a right of way and that a
private road was used for many years across the
respondents' land are not questioned. The dispute
before us is not, therefore, over the granting of a
right of way, that has been decided, but over the
location thereof. Decisions relating to the creation
of ways by prescription are not, therefore, helpful in
the issue before us.
There does not seem to be any serious controversy
over the location of either extremity of the road in
question. A map offered in evidence definitely
shows the courses and the distances of the southerly
Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works
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Page 4 of
24 A.2d 631
(Cite as: 148 P2.Super.13, 24 A.2d 631)
portion of the road extending from the state road in
a general northerly direction to the barn of the
defendant, and it gives similar information
respecting the northerly end of the road extending
from the Delaware Valley Railroad tracks to the
house of the plaintiffs. The difficulty arises over the
fixing of its location between those two points. The
petitioners contend that they definitely located this
road by extrinsic evidence.
A number of witnesses were called who testified to
*17 the existence of a road in past years,
approximately where it was located, and the use
made of it. Some of them testified that the marks
now on the ground indicate where it was in earlier
days. It is unnecessary , however, at this time to
review the testimony. The plaintiffs, in view of the
express grant in the deed, are entitled to a road.
Fixing the location may be attended with some
difficulty but there is sufficient evidence on this
record to locate it for the distance of approximately
1,000 feet, as shown by the blueprint offered in
evidence, between the railroad tracks and
defendants' bam.
"The rule has been established in many
jurisdictions that if an easement is granted in
general terms which do not fix its location, the
owner of the servient estate has the right, in the first
instance, to designate the location of such easement.
This right, however, must be exercised in a
reasonable manner with due regard to the rights of
the owner of the easement. In this situation, **633
if the owner of the servient estate does not designate
the location, the person entitled to an easement may
select a suitable route, taking into consideration the
interest and convenience of the owner of the land
over which the easement passes. If a location is not
selected by either the servient or the dominant
owner and they cannot agree upon a location, a
court of equity has the power affirmatively and
specifically to determine the location of the
servitude. *** There is a well-established rule that
where, at the time of a grant of right of way across
land, made without designating the location, there is
in use upon such premises a way plainly visible and
known to the parties, such way actually in existence
will be deemed that which is contemplated by the
grant." 17 Am.Jur., Easements, section 86.
Page 3
equity may determine its location. *18Ingelson v.
Olson, 199 Minn. 422, 272 N.W. 270, 110 A.L. R.
167. See„ also, Pennsylvania Water & Power
Company v. Reigart, 127 Pa. Super. 600, 193 A. 311
[2] We are all of the opinion that the case must be
referred back to the learned judge below for him to
fix the location of the road from the present record
or from any additional evidence that may be
produced.
[3] We pllace no weight to appellees' contention
that the evidence established a nonuser of this road
by the plaintiffs or their predecessors in title and
that it constituted an abandonment thereof. This
easement, created by a grant, cannot be
extinguished or affected by nonuser unless it is
shown by some positive, adverse, and hostile
interference: by one who claims that the easement
has been extinguished, or the loss of title in some
other way recognized by law. No such situation is
present.
[41 It is not necessary that an owner of an easement
appurtenant to land should make use of it to
maintain ownership. Weaver v. Getz, 16 Pa.Super.
418.
[5][6] We do not regard the rights of the petitioners
now in question as being adjudicated in the bill in
equity when: the easement was alleged to have been
acquired by prescription. Here they are relying on a
grant in a deed, which was not considered or
decided in the former proceeding. As above noted
the court below in refusing an amendment did so
without prejudice to bringing an action at law or in
equity. Furthermore, no final decree was entered in
the equity proceedings. A defense of res adjudicata
cannot prevail in the absence of a final judgment.
Dougherty v. Lehigh Coal & Navigation Company,
202 Pa. 635, 638, 52 A. 18, 90 Am.St.Rep. 660;
Grear V. Buholz, 66 Pa.Super. 380, 382. The equity
action was not a bar to this proceeding.
The decree of the court below is reversed and the
record is remitted for further proceedings in
accordance with this opinion.
[I] Where an easement is indefinitely located on KENWORTTIEY, J., absent.
definitely described land, if the parties fail to locate
the roadway or disagree as to its location, a court of 24 A.2d 631, 148 Pa.Super. 13
Colin ® West 2004 No Claim to Orig. U.S. Govt. Works
http://print.westlaw.com/delivery.html?dest=atp&dataid=B0055800000010430004636585BB5F5C71622A... 6/15/2004
Page 5 of
24 A.2d 631
(Cite as: 148 Pa.Super.13, 24 A.2d 631)
END OF DOCUMENT
Copr. ® West 2004 No Claim to Orig. U.S. Govt. Works
Page 4
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs No. 2004- 1500
V.
Civil Action - Equity
FRANK MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
PLAINTIFFS' REPLY TO DEFENDANTS' AMENDED ANSWER AND
COUNTERCLAIM
AND NOW, this 16' day of June, 2004, come the Plaintiffs, Roger D. Bream and Mary
L. Bream (hereinafter referred to as the "Plaintiffs'), by and through their counsel, Hanft &
Knight, P.C., and file the following Reply to Defendant's Answer and Counterclaim, and in
support thereof, aver as follows:
19. Paragraphs 1 through 18 of the Plaintiffs' Complaint are incorporated herein by
reference as if fully set forth herein.
20. Denied. It is specifically denied that the Plaintiffs obstructed the right-of-way. Strict
proof of the averments contained in Paragraph 20 is demanded at trial.
21. Denied as stated. The Plaintiffs have not consented to a survey due to the fact that the
right of way is not described in any deed or plan in metes and bounds; hence the results of a survey
cannot be relied upon to determine the exact location of the right of way. Strict proof of the
averments contained in Paragraph 21 is demanded at trial.
22. Denied. The averments ofParagraph 22 area conclusion of law to which no responsive
pleading is required. If a more specific answer is deemed appropriate, the Court is urged not to order
a survey for the reasons cited in Paragraph 21, above. Strict proof of the averments contained in
Paragraph 22 is demanded at trial.
23. Denied. It is specifically denied that the Plaintiffs have attempted to "push" the right-
of-way onto the property of the Defendants in an effort to increase the size of the Plaintiffs' property
and decrease the size of the Defendants' property. Strict proof of the averments contained in
Paragraph 23 is demanded at trial.
24. Denied. Paragraphs 19 through 23 are incorporated herein byreference as if fully set
forth herein. By way of further answer, the averments of Paragraph 24 are a conclusion of law to
which no responsive pleading is required. Strict proof of the averments contained in Paragraph 24 is
demanded at trial.
25. The averments ofParagraph 24 are a conclusion oflaw to which no responsive pleading
is required. Strict proof of the averments contained in Paragraph 24 is demanded at trial.
WHEREFORE, the Plaintiffs respectfully request judgment in their favor and against
Defendants.
Respectfully Submitted,
HANFT & K; IGHT, P.C.
'Mrchae . Hanft, Esquire
ttomey I.D. No. 57976
James I. Nelson
Attorney I.D. No. 91144
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Attorneys for Plaintiffs
F.\User Folds iim Dote\Crndo 2004@648- Imply Wmtolvm.wpd
VERIFICATION
ROGER D. BREAM and MARY L. BREAM, VERIFY that the statements set forth in the
attached Reply to Defendant's Answer and Counterclaim are true and correct to the best of their
knowledge, information and belief. I understand that false statements herein are made subject to the
penalties of 18 Pa. Section 4904 relating to unsworn falsification to authorities.
Date: 44
Ro er ream
ary L. B e
CERTIFICATE OF SERVICE
AND NOW, this 16' day of July, 2004, I, James I. Nelson, Esquire, hereby certify that I
have this day served the following person with a copy of the foregoing document, by first class,
United States Mail, postage pre-paid, addressed as follows:
Karl E. Rominger, Esquire
ROMINGER, BAYLEY & WHARE
155 South Hanover Street
Carlisle, PA 17013
HANFT & IgNIGHT, P.C.
,alines lelson, Esquire
!D. No. 91144
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249.5373
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ROGER D. BREAM and MARY L.: IN THE COURT OF COMMON PLEAS OF
BREAM, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
vs.
FRANK MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA
A. MAGNI,
Defendants
04-1500 EQUITY
CIVIL ACTION - EQUITY
IN RE: PETITION FOR SURVEY
ORDER
AND NOW, this 1V day of June, 2004, following argument on the petition of the
defendants for a survey, the court being in agreement with the plaintiffs that, based on the
information provided at oral argument, there is no description of the right-of-way in metes and
bounds nor is there a demonstrated starting point for a survey and, therefore, it does not appear
that a survey is reasonably calculated to lead to the discovery of admissible evidence, the petition
of the defendants for survey is DENIED.
This order is entered without prejudice to the defendants to file a motion to relist this
matter for the purpose of adducing testimony from a surveyor as to how a survey would prove
beneficial.
BY THE COURT,
Kevi A. Hess, J.
James Nelson, Esquire
For the Plaintiffs
Karl Rominger, Esquire
For the Defendants % -
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19 BROnKWOOn AVENUE Sun-e 106 CIP11S1.e. PA -17013-9142
719.299.5373 rnx 717.249.04°7 WWW.1fAIN1TW\WFIRM,cum
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ROGER D. BREAM and MARY L.
BREAM,
Plaintiffs No. 2004- 1500
V.
Civil Action - Equity
FRANK MAGNI, DIXIE MAGNI,
FRANKLIN MAGNI, JR., LYDIA A.
MAGNI,
Defendants
CERTIFICATE OF SERVICE
[This certification serves to correct a previous certification which stated that service had
been made on July 16th, rather than June 160i.]
AND NOW, this 16' day of July, 2004, 1, James I. Nelson, Esquire, hereby certify that I
have this day served the following person with a copy of the Reply to Amended Petition for
Survey, via both hand delivery and first class, United States Mail, postage pre-paid, addressed as
follows:
Karl E. Rominger, Esquire
ROMINGER, BAYLEY & WHARE
155 South Hanover Street
Carlisle, PA 17013
HANFT & K GHT, P.C.
nes I. son, Esquire
AtCorney I.D. No. 91144
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
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Curtis R. Long
Prothonotary
Office of the Vrotbonotarp
Cuntberfanb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
ny - /S'Qn CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2.
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573