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HomeMy WebLinkAbout08-6647 Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 french keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 08- &6q7 PETER R. WILSON, JR and SHARON J. WILSON Defendants ACTION IN TRESPASS COMPLAINT FOR TRESPASS TO LAND NOW COME Plaintiffs, CORNELIUS J. KEIM III and LINDA L. HEIM, by their attorneys, Keefer Wood Allen & Rahal, LLP, and make this Complaint, averring as follows: 1. Plaintiffs are CORNELIUS J. KEIM III and LINDA L. KEIM, husband and wife, adult individuals residing at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 2. Defendants are PETER R. WILSON, JR. and SHARON J. WILSON, husband and wife, adult individuals residing at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 3. Certain improvements to real estate owned by Defendants are located in part on the property owned by Defendants at 3811 Bellows Drive and in part on the property owned by Plaintiffs at 3813 Bellows Drive. 4. The encroaching improvements consist of a retaining wall, pool deck and fencing, a rock garden and possibly a lawn irrigation system. Defendants were notified of the encroachments in January 28, 2008, but have refused and continue to refuse to remove the encroachments, claiming that they do not know where the boundary line is located between their property and Plaintiffs' property and have no responsibility to determine the location of the boundary line. 6. Defendants' blatant and adverse trespass onto Plaintiffs' property, including their refusal to verify the extent of their own property, has caused damage to Plaintiffs in the form of diminished enjoyment of their property, as well as physical damage to the areas where the encroachments are located. 7. Additionally, Defendants' on-going trespass, while at the same time refusing to verify the extent of their property, constitutes a willful, wanton and reckless disregard for the rights of Plaintiffs with respect to their property. 8. Plaintiffs are entitled to compensatory damages for loss of full enjoyment of their property and for physical damage to the property resulting from Defendants' encroachments. 9. Plaintiffs are also entitled to punitive damages for Defendants' on-going willful, wanton and reckless trespass onto Plaintiffs' property. -2- WHEREFORE, Plaintiffs demand that judgment be entered in their favor and against Defendants in an unspecified amount that exceeds the compulsory arbitration limit of Cumberland County. Dated: November _6_, 2008 KEEFER WOOD ALLEN & RAHAL, LLP B 4 - Gary . French, Esquire Attorney I.D. 25810 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim -3- VERIFICATION We, Cornelius I Keim and Linda L. Keim, hereby certify that the facts in the foregoing Complaint are true and correct to the best of our knowledge, information and belief, and further state that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsvvorn falsification to authorities. Cornelius J. Ke' Lind L. Keim Dated: November, 2008 s 7`•? 01* v W 0 b r? t± Q r c 0 :;-I 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-6647 Civil Term ACTION IN TRESPASS NOTICE TO PLEAD To: Cornelius J. Keim III and Linda L. Keim c/o Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17108-1963 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, Date: -PQ c ,?v C51 1,00E C. REAL & ADLER, P. us E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter R. Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants No. 08-6647 Civil Term ACTION IN TRESPASS DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, come Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, collectively referred to hereinafter as "Defendants", by their attorneys, Reager & Adler, P.C., and make Preliminary Objections to the Complaint in Trespass filed by Plaintiffs, Cornelius J. Keim III and Linda L. Keim, collectively referred to hereinafter as the "Plaintiffs", and in support thereof aver as follows: PRELIMINARY OBJECTION - I FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT (Pa. R. Civ. P. 1028(a)(2)) 1. Plaintiffs, in their Complaint in Trespass at ¶ 8, aver that they are "entitled to compensatory damages for loss of full enjoyment of their property ... resulting from Defendants' encroachments." 2. On April 29, 2008, Plaintiffs commenced an Action in Ejectment in this Court, Keim v. Wilson, No. 08-Civ-2776, in which Plaintiffs demanded judgment for ejectment in their favor and against these same Defendants for removal of the same alleged encroachments listed in their Complaint in Trespass (at ¶ 4). See Second Amended Complaint in Ejectment (attached hereto as Exhibit A). 3. Under Pennsylvania law, a property owner electing the remedy of ejectment may not also recover compensatory damages for loss of full enjoyment of their property resulting from the alleged encroachments. See Baugh v. Berdoll, 227 Pa. 420, 76 A. 207 (1910). 4. As Plaintiffs previously elected to pursue the remedy of ejectment by filing and prosecuting the above-referenced Action in Ejectment, Plaintiffs are barred from simultaneously pursuing this Action in Trespass, in which Plaintiffs seek to recover compensatory damages for the loss of the full enjoyment of their property arising out of the same alleged encroachments that are the subject of the Action in Ejectment. 5. As Plaintiffs' in their Complaint in Trespass, at ¶ 8, seek compensatory damages for the loss of the full enjoyment of their property arising out of the same alleged encroachments that are the subject of the above-referenced Action in Ejectment, the portion of ¶ 8 demanding judgment against Defendants for compensatory damages should be stricken, as it fails to conform to a rule of law. WHEREFORE, Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, respectfully request that their Preliminary Objections be sustained, and that the portion of ¶ 8 of Plaintiffs' Complaint in Trespass demanding judgment for compensatory damages be stricken. PRELIMINARY OBJECTION - II FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT (Pa. R. Civ. P. 1028(a)(2)) 6. Paragraphs 1-5 of Defendants' Preliminary Objections are incorporated by reference as if set forth fully herein. 7. Plaintiffs, in their Complaint in Trespass at ¶ 8, aver that they are entitled to special damages for "physical damage to the property resulting from Defendants' encroachments." 8. Plaintiffs' claim for special damages is not pled with the degree of specificity required by Pa. R. Civ. P. 1019(f). 9. Among other pleading insufficiencies, Plaintiffs' do not state anywhere in their Complaint in Trespass the nature of the physical damage to their property that is alleged to have occurred. 10. As Plaintiffs' in their Complaint in Trespass, at ¶ 8, have averred generally and without the degree of specificity required by Pa.R.C.P. 1019(f) that they are entitled to special damages for physical damage to their property resulting from the alleged encroachments, the portion of ¶ 8 demanding judgment against Defendants for such special damages should be stricken, as it fails to conform to a rule of court. WHEREFORE, Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, respectfully request that their Preliminary Objections be sustained, and that the portion of ¶ 8 of Plaintiffs' Complaint in Trespass demanding judgment for special damages be stricken. PRELIMINARY OBJECTION - III FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT (Pa. R. Civ. P. 1028(a)(2)) It. Paragraphs 1-10 of Defendants' Preliminary Objections are incorporated by reference as if set forth fully herein. 12. Plaintiffs, in their Complaint in Trespass at ¶ 8, 19, and in their prayer for relief, aver that they are entitled to damages - including compensatory, special, and punitive damages - arising from the alleged encroachments referenced elsewhere in their Complaint in Trespass. 13. As noted above, Plaintiffs previously filed and are prosecuting an Action in Ejectment against these same Defendants relating to the same alleged encroachments that are the subject of their Complaint in Trespass. See Exhibit A. 14. In the operative pleading filed in the above-referenced Action in Ejectment, Plaintiffs did not include a cause of action for damages arising from the alleged encroachments, as expressly permitted by Pa. R. Civ. P. 1055, but instead attempted to "reserve the right to pursue a separate claim for damages" at some future date. See Exhibit A at ¶ 14. 15. On August 6, 2008, Defendants filed an Answer With New Matter in the above-referenced Action in Ejectment, in which Defendants advised Plaintiffs of their position that "Any claim for damages arising from the alleged encroachment that Plaintiffs believe to be cognizable under Pa. R. Civ. P. 1055 should be joined by Plaintiffs at this time or be forever barred." See Answer With New Matter at ¶ 14 (attached hereto as Exhibit B). 16. Plaintiffs did not thereafter amend or seek to amend the operative pleading in the above-referenced Action in Ejectment to add a cause of action for damages arising from the alleged encroachments. 17. As Plaintiffs' in their Complaint in Trespass, at 18, ¶ 9, and in their prayer for relief, aver that they are entitled to damage that arises from the same transactions and occurrences that gave rise to Plaintiffs' previously filed Action in Ejectment -namely, the alleged encroachments upon Plaintiffs' property Plaintiffs' failure to join a cause of action for damages in the Action in Ejectment constituted a waiver of that cause of action, which precludes Plaintiffs from pursuing their claims for compensatory, special, and punitive damages in this Action in Trespass. See Pa. R. Civ. P. 1020(d). See also Pa. R. Civ. P. 1055 (1979 Explanatory Comment). WHEREFORE, Defendants, Peter R. Wilson, Jr. and Sharon J. Wilson, respectfully request that their Preliminary Objections be sustained, and that Plaintiffs' claims for compensatory, special, and punitive damages, in ¶ 8, ¶ 9, and in their prayer for relief, be stricken. Respectfully submitted, REA ADLER, P.C. Dated: December-/ 2008 t?dus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants EXHIBIT "A" PLAINTIFFS' SECOND AMENDED COMPLAINT IN EJECTMENT rim ' M Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 t,frenchC&keeferwood. corn CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM Defendants . ACTION IN EJECTMENT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 NOTICIA LE HAN DEMANDADO A LISTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 gfrench(c?keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-2776 CIVIL TERM ACTION IN EJECTMENT SECOND AMENDED COMPLAINT IN EJECTMENT NOW COME Plaintiffs, CORNELIUS J. KEIM III and LINDA L. KEIM, by their attorneys, Keefer Wood Allen & Rahal, LLP, and make this Amended Complaint, averring as follows: 1. Plaintiffs are CORNELIUS J. KEIM III and LINDA L. KEIM, husband and wife, adult individuals residing at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 2. Plaintiffs are title owners of the parcel of land, together with improvements, located at 3813 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Plaintiffs' Tract"), being more particularly bounded and described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. Defendants are PETER R. WILSON, JR. and SHARON J. WILSON, husband and wife, adult individuals residing at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania. 4. Defendants are title owners of the parcel of land, together with improvements, located at 3811 Bellows Drive, Hampden Township, Cumberland County, Pennsylvania ("Defendants' Tract"), being more particularly bounded and described as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. An abstract of title to Plaintiffs' Tract is attached hereto as Exhibit "C" and incorporated herein by this reference. 6. Plaintiffs have the immediate and unqualified right of possession over the entirety of Plaintiffs' Tract, having granted neither a. leasehold interest nor any other possessory right to any party, including Defendants. 7. Defendants have unlawfully encroached upon Plaintiffs' Tract by allowing a portion of their pool decking and fencing to be located on Plaintiffs' Tract. A foliage buffer located near the encroachments is owned by Plaintiffs. 8. Additionally, Defendants have unlawfully encroached upon a portion of Plaintiffs' Tract by allowing a portion of their rock garden to be located on Plaintiffs' Tract. 9. On information and belief, it is alleged that a portion of Defendants' irrigation piping may unlawfully encroach upon Plaintiffs' Tract. 10. None of the encroachments would be costly to remove in comparison to the loss of title to a portion of Plaintiffs' Tract. -2- 11. Plaintiffs notified Defendants of the unlawful encroachments in writing and requested that the encroachments be removed. 12. Defendants have refused to remove the encroachments. 13. Defendants and their encroachments should be ejected from Plaintiffs' Tract. 14. In accordance with Pa. R. Civ. P. 1055, Plaintiffs specifically reserve the right to pursue a separate claim for damages for continuing trespass, damage to land, punitive damages and any other direct and consequential damages and fees permitted by law. WHEREFORE, Plaintiffs demand judgment for ejectment in their favor and against Defendants for removal of Defendants' unlawful encroachments, together with taxable costs. Dated: June 30, 2008 KEEFER WOOD ALLEN & RAHAL, LLP By Gary E. rench, Esquire Attorney I.D. 25810 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim -3- PLAINTIFFS' TRACT ALL THAT CERTAIN lot or piece of land, with the buildings and improvements thereon erected, situate in Hampden Township, Cumberland County, more particularly bounded and described as follows, to wit: BEGINNING at a point at the northeast conger of Orr's Bridge Road and Bellows Drive, on the hereinafter mentioned Plan of Lots; thence by the eastern side of Orr's Bridge Road, North 31 degrees 17 minutes West, 180 feet to a point at lands now or late of Grandview Heights, Inc.; thence by said lands North 82 degrees 25 minutes East, 16098 feet to a point at the dividing line between Lot Nos. 1 and 2, Block "P", of the Plan; thence by said dividing line South 14 degrees 03 minutes 08 seconds East, 12894 feet to a point on the northern side of Bellows Drive; thence by the northern side of Bellows Drive by an are curving to the left having a radius of 175 feet an are distance of 5263 feet (erroneously referred to in deed as 56.23 feet); thence continuing along the northern side of Bellows Drive, South 58 degrees 43 minutes West, 57.37 feet to a point on the northeast corner of Orr's Bridge Road and Bellows Drive, the place of BEGINNING. BEING ALL OF LOT NO. 1, Block "P", Plan No. 14, Pinebrook, which Plan is recorded in the Cumberland County Recorder's Office in Plan Book 23, Page 148. EXHIBIT "A" DEFENDANTS' TRACT ALL THAT CERTAIN lot or piece of ground situate in Hampden Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the northern side of Bellows Drive, which point is 110.00 feet in an eastern direction from the northeast corner of Orr's Bridge Road and Bellows Drive at the dividing line between Lots Nos. 1 and 2, Block "P", of the hereinafter mentioned Plan; thence by said dividing line, North 14 degrees 03 minutes 08 seconds West, 128.94 feet to a point at lands now or formerly of Grand Vue Heights, Inc.; thence by said lands, North 82 degrees 25 minutes East, 104.48 feet to a point at the dividing line between Lots Nos. 2 and 3, Block "P" of the Plan; thence by said dividing line, South 07 degrees 35 minutes East, 127.00 feet to a point on the northern side of Bellows Drive; thence by the northern side of Bellows Drive, South 82 degrees 25 minutes West, 70.24 feet to a point; thence continuing along the northern side of Bellows Drive by an are curving to the left, having a radius of 175.00 feet, an arc distance of 19.76 feet to a point at the dividing line between Lots Nos. 1 and 2, Block "P" of the Plan, the place of BEGINNING. BEING all of Lot No. 2, Block "P", Plan 14, Pinebrook, which Plan is recorded in the Cumberland County Recorder's Office, in Plan Book 23, Page 148. EXHIBIT "B" ABSTRACT OF TITLE - PLAINTIFFS' TRACT Owners 1975-1976 - Glen R. Chamberlin, Robert L. Chamberlin, and Eddie G. Chamberlin, t/d/b/a Chamberlin & Sons, by Deed dated November 20, 1975, and recorded in Deed Book I-26, Page 647. Owners 1976-Present - Cornelius J. Kelm III, and Linda L. Kelm, husband and wife, by Deed dated June 24, 1976, and recorded in Deed Book "Q," Volume 26, Page 679. EXHIBIT "C" / P/N (SET) GOLF COURSE ARMI -AG 5,0 6 .98, D. B. O? 'oC 0 O o v SEAL 'O O m ? O REGISTERED VrG`ESSIO"dAE tp4.. .Lllla \. SUU257?t2E ???e? ?! N/L CORNELIUS J. & LINDA L. KEIM "Q"; VOL. 26, PG LOT #1 P. B. 23, PG. 748 TAX PARCEL # 70-18-1312-048 / P/N (SET) 4. w m s V WALL fEiVCE a q? s Qs 679 ccx B? 3 i i NIL BRUCE J. & SHANNON GRAHAM R. B. 269-2726 LOT #2 P. 8. 23, PG. 748 TAX PARCEL # 70-18- 7312- 049 ,N tp ? #3811 / P/N ' \/ (SET) / -CHO BRG-S 6779 53" W CHD. D/ST. 52.4.3' R175. W' A---52.,6.Y' CX; T-26.51' 40 4-1773'51.53' 1 0 20 40 2y ? ' GRAPHIC SCALE 1 inch = 40 !L ., HARTMAN AND ASSOCIATES, INC. ENQMVEER3 6 SURVEYORS 2101 ORCHARD ROAD CAMP HLL, PENNSYLVANIA T= TELEPHONE r?M 737-340.5 FAX CM 737 - 2003 EMAL - Mel • WALL j,yo R NCE 0ACHMENT OVER LINE Lor ?r W CK EENCROA CHMEN T ENLARGEMEN T 1 "-20' 3813 BELLOWS DRIVE PINEBROOK HAMPDEN TOWNSHIP. FILE 07011 PLAT SCALE : 1" - 40' DATE 03/13/2007 PROJECT : 07011 REVISED SURVEY BOOK :1216-1 . y -" I11 66-27-08'- 12:18PM FROM-Keefer Wood Allen A Rahal 7172558050 T-170 P-014/015 F-648 VEP.MCATION We, Cornelius J. Keim and Linda L. Keim, hereby certify that the facts in the foregoing Second Amended Complaint are true and correct to the best of our knowledge, information and belief, and further state that false statements herein are made subject to the penalties of 18 pa.C.S. § 4904 relating to unworn falsification to authorities. Dated: June _ - 2008 Cornelius J. Keim III ?J Keim -4- CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Second Amended Complaint upon Defendants this date by depositing a true and correct copy of the same in the United States mail via certified mail-return receipt requested, first-class postage prepaid, addressed as follows: Linus E. Fenicle, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP Dated: June 30, 2008 EXHIBIT "B" DEFENDANTS' ANSWER WITH NEW MATTER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT L< 'y c, NOTICE TO PLEAD To: Cornelius J. Keim III and Linda L. Keim c/o Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17108-1963 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED DEFENDANTS' ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Date: v5,ts?' 5 ZP0$ Respectfully submitted, RE LER, P.C. Lin ifs E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants T >j ra?E REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter R. Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-2776 Civil Term ACTION IN EJECTMENT DEFENDANTS' ANSWER WITH NEW MATTER 1. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted. 4. Admitted. 5. Admitted upon information and belief. 6. Denied. The averments of Paragraph 6 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 6. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 7. Denied in part and admitted in part. Defendants admit that the foliage buffer is owned by Plaintiffs. The remaining averments of Paragraph 7 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every remaining factual averment. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 8. Denied. The averments of Paragraph 8 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 8. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 9. Denied. The averments of Paragraph 9 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the LI truth of the averments of Paragraph 9. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 10. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 10. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 11. Admitted in part and denied in part. Defendants admit that they were notified of the alleged encroachments in writing, and that Plaintiffs, by this action, are requesting that said alleged encroachments be removed. However Defendants deny the averments of Paragraph 11 to the extent that they constitute conclusions of law to which no responsive pleading is required. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 12. Admitted in part and denied in part. Defendants admit that they have denied Plaintiffs' request to remove the alleged encroachments. However, Defendants deny the averments of Paragraph 12 to the extent that they constitute conclusions of law to which no responsive pleading is required. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 13. Denied. The averments of Paragraph 13 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 14. Denied. The averments of Paragraph 14 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. By way of further answer, it is denied that Plaintiffs have the right to pursue a separate claim for damages, whether in this action or in some future action. Any claim for damages arising from the alleged encroachment that Plaintiffs believe to be cognizable under Pa. R. Civ. P. 1055 should be joined by Plaintiffs at this time or be forever barred. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. NEW MATTER 15. Defendants incorporate herein by reference the averments of Paragraphs 1 through 14 above as if set forth fully herein. 16. Plaintiffs' Second Amended Complaint fails to state a cause of action upon which relief may be granted. 17. Plaintiffs' claims are barred due to the doctrine of estoppel. 18. Plaintiffs' claims are barred due the doctrine of laches. 19. Plaintiffs' claims are barred due to the doctrine of waiver. 20. Plaintiffs' claims are barred due to the doctrine of acquiescence. 21. Plaintiffs' claims are barred due to the doctrine of inadvertence. 22. Plaintiffs' claims are barred due to the doctrine of unclean hands. 23. Plaintiffs' claims are barred due to the doctrine of mistake. 24. Plaintiffs' claims are barred due to the doctrine of de minimis. 25. Plaintiffs' claims are barred due to the Plaintiffs' failure to mitigate their alleged damages. WHEREFORE, Defendants Peter R. Wilson, Jr. and Sharon J. Wilson respectfully request this Honorable Court to enter judgment in their favor and against Plaintiffs Cornelius J. Keim, III and Linda L. Keim, and to dismiss Plaintiffs' Second Amended Complaint with prejudice, costs, and attorneys' fees. Respectfully submitted, REAGER & ADLER, P.C. Dated: August, 2008 Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants VERIFICATION We, Peter R. Wilson, Jr. and Sharon J. Wilson, hereby verify that the averments of the foregoing document are true and correct to our personal knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S: §4904, relating to unsworn falsification to authorities. Date: F R , ??g C Peter R. Wilson, Jr. f3 ?5 /2- dog Date. Sharon J. Wilson 17 CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid, as follows: Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Respectfully submitted, REAGERA ADLER, PC Date: vo- 6 'ga? By: eter R. Wilson, Esquire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, . Defendants. No. 08-6647 Civil Term ACTION IN TRESPASS CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid as follows: Gary E. French, Esquire 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Dated: )'?Ce,A-6kl 15? ? "'Peter R. Wilson, Esquire '?? ? . ? ,.r7 r-.t °-. j ,i..i # _., ? h.i^t , , f,.a.. r ,.. _,, ''s ::? s .,, '? Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 french _keeferwood.com CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs V. PETER R. WILSON, JR. and SHARON J. WILSON Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-6647 ACTION IN TRESPASS PLAINTIFFS' RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS NOW COME, Plaintiffs Cornelius J. Keim III and Linda L. Keim, hereinafter referred to as "Plaintiffs," by their attorneys Keefer Wood Allen & Rahal, LLP, and respond to the Preliminary Objections filed by Peter R. Wilson, Jr. and Sharon J. Wilson, hereinafter referred to as "Defendants," averring as follows: PRELIMINARY OBJECTION - I 1. Admitted. By way of further response, Plaintiffs' Complaint in Trespass speaks for itself. Any interpretation of said Complaint by Defendants is not a factual averment and, therefore, is denied. 2. Admitted. By way of further response, Plaintiffs' Complaint in Ejectment speaks for itself. Any interpretation of said Complaint by Defendants is not a factual averment and, therefore, is denied. 3. Denied. The averment contained in Paragraph 3 of Defendants' Preliminary Objection is a conclusion of law to which no response is required. By way of further response, the case of Baugh v. Berdoll, 227 Pa. 420, 76 A.2d 207 (1910), is inapposite to the damage issue raised by Defendants. The Baugh case holds that a landowner harmed by a boundary encroachment has a choice of remedies with regard to the encroachment itself. (i) have the encroachment removed, or (2) leave it in place and seek recovery for the value of the permanently land lost. Plaintiffs in their Ejectment have asked that Defendants' encroaching improvements be removed. However, in addition to removal, Plaintiffs in the instant action seek recovery for repair costs that will be incurred once the encroachments are removed (re-landscaping expenses, etc.), loss of enjoyment while the encroachment remains in place, and punitive damages for refusal to remove the encroachments or even verify location of the boundary line. The damage remedies sought by Plaintiffs in the instant case are, therefore, different from a recovery for value of the land as described in Baugh. Plaintiffs' claimed damages are permitted by Slappo v. J's Development Associates, Inc., 791 A.2d 409 (Pa. Super. 2002) and Pa. R. Civ. P. 1055. 4. Denied. The averment contained in Paragraph 4 of Defendants' Preliminary Objection is a conclusion of law to which no response is required. By way of further response, during the period of the on-going encroachment, Plaintiffs are denied the full enjoyment of their land for which they should be compensated. The election of remedies required by Baugh v. -2- Berdoll, 227 Pa. 420, 76 A.2d 207 (1910), is an election between removal of the encroachment (ejectment remedy) or damages for permanent loss of land (permanent loss damages). Plaintiffs' Complaint does not seek permanent loss damages as described in Baugh but does seek repair damages, temporary loss damages/lost rents, and punitive damages as allowed by 5lappo cited above. 5. Denied. The averment contained in Paragraph 5 of Defendants' Preliminary Objections is a conclusion of law to which no response is required. By way of further response, see response Paragraphs 3 and 4 above. WHEREFORE, Plaintiffs respectfully request that Defendants' Preliminary Objections be dismissed. PRELIMINARY OBJECTION - II 6. Paragraphs 1 through 5 of Plaintiffs' Response to Preliminary Objections are incorporated herein as though fully set forth. 7. Admitted. 8. Denied. Plaintiffs' land has been damaged and is being damaged by Defendants' on-going encroachments, which encroachments consist of a masonry retaining wall, fence, rock garden, etc. The full measure of damages will not be known and, therefore, cannot be described with greater specificity, until the encroachments are removed and discovery is undertaken in this action. Additionally, Plaintiffs are suffering loss of use damages while the encroachment remains in place, and punitive damages are appropriate under the facts of this case. -3- 9. Denied. Plaintiffs' lawn area has been disturbed and must be re-landscaped upon removal of the encroachment. The extent of repair work is unknown at this time and cannot be specifically pled. 10. Denied. See Response to Preliminary Objection No. S. WHEREFORE, Plaintiffs respectfully request that Defendants' Preliminary Objections be dismissed. PRELIMINARY OBJECTION -III 11. Paragraphs 1 through 10 of Plaintiffs' Response to Preliminary Objections are incorporated herein as though fully set forth. 12. Admitted. 13. Admitted. 14. Admitted in part; denied in part. In initial versions of the Complaint in Ejectment filed with the Court, Plaintiffs did in fact join proper demands for damages (except the claim for attorneys' fees) pursuant to Pa. R. Civ. P. 1055. However, Defendants improperly, vexatiously and with an intent to delay the proceeding, filed preliminary objections to two versions of the Complaint in Ejectment asserting that Plaintiffs could not seek damages while also pursuing a remedy in ejectment. Rather than engaging Defendants in tactics to delay the proceeding and harass Plaintiffs, Plaintiffs amended their Complaint to request strictly the ejectment remedy. Pa. R. Civ. P. 1055 states that damage remedies and the ejectment remedy may be joined in the same complaint, but joinder is not mandatory. -4- 15. Admitted. By way of further response, Defendants' legal position on joinder of claims as expressed in their Answer with New Matter has no validity and is unsupported by any argument under existing law. 16. Admitted. No such amendment is required by rule or law. 17. Denied. Pa. R. Civ. P. 1020(d) involves mandatory joinder of related causes of action heretofore asserted in assumpsit and trespass. There is no mandatory joinder of a cause of action in ejectment, which is equitable in nature, and a cause of action for trespass. See Note Pa. R. Civ. P. 1020. See also, Comment to Pa. R. Civ. P. 1055, which states, "Ejectment Rule 1055 permits the joinder in an action of ejectment with a cause of action for...damages or injury to the land." It is clear that such joinder is permissive not mandatory. WHEREFORE, Plaintiffs respectfully request that Defendants' Preliminary Objections be dismissed. Respectfully submitted, Dated: January 6, 2009 KEEFER WOOD ALLEN & RAHAL, LLP Gary renc , Esquire Attorney I.D. 25810 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim -5- VERIFICATION We, Cornelius J. Keim and Linda. L. Keim, hereby certify that the facts in the foregoing Response to Defendants' Preliminary Objections are true and correct to the best of our knowledge, information and belief, and further state that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Cornelius J. Keim' III LiiL. Keim Dated: .?,,• . G , 2001 CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Amended Complaint upon Defendants this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Linus E. Fenicle, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 Peter R. Wilson, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP By: ary E. French Dated: -7 , 2001 Q F - n PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs VS. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants No. 08-6647 , Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): ^e'eaaan•s' eliim;., Plaintiffs' Complain! 2. Identify all counsel who will argue cases: (a) for plaintiffs: Peter R Wilson Esquire (Name and Address) 2331 Market Street, Camp Hill, PA 17011 or defendants: Gary E. French, Esquire 210 Walnut Street, P.O. Box 11963, Harrisburg PA 17108-1963 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: Februarv 4.-2968020 Pw Print your name Plaintiffs Attorney for Date: January 12, 2009 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ? w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants. No. 08-6647 Civil Term ACTION IN TRESPASS CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid as follows: Gary E. French, Esquire 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Dated: 7'ez.7 Peter R. Wilson, Esquire na C ? ? f'T . r ? ? ? ?? ?.^-. .? L. P ?- ?? .r. ? 1 a z ?? ' ? a ? ? ? "rt7 '' ? ?t:?t _ ? ?' 7'? ' '? i` ??... •? ? ? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) -- -------------- - ------ - - - -- - --- --- -------- - - -- - ----------------------------------- ---------------------- CAPTION OF CASE (entire caption must be stated in full) CORNELIUS J. KEIM III and LINDA L. KEIM, Plaintiffs VS. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants No. 08-6647 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Gary E. French, Esq. Keefer Wood Allen & Rahal, LLP, 210 Walnut Street, Harrisburg, PA 17101 (Name and Address) (b) fordefendants: Peter R. Wilson, Esq. & Linus E. Fenic e, Esq. Reager & Adler, P.C., 2331 Market Street, Camp Hill, PA 17011 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Sign Print your name Gary E. French, Esq. Plaintiff A Attorney for Date: January 12, 2009 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. C_. o ? C? 'v7 t" t,.. w ni{- i _J IJU C;rj -< CORNELIUS J. KEIM, III AND LINDA L. KEIM, PLAINTIFFS V. PETER R. WILSON, JR. AND SHARON J. WILSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 08-6647 CIVIL TERM BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this 10tk day of February, 2009, the preliminary objections of defendants to plaintiffs' complaint, ARE DISMISSED. ary E. French, Esquire For Plaintiffs anus E. Fenicle, Esquire Peter R. Wilson, Esquire For Defendants J :sal Edgar B. Bayley, J. Lu rt ~ 1 66 ' k j ? ? yl N Yy y• REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter R Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ;PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, No. 08-6647 Civil Term V. ACTION IN TRESPASS PETER R. WILSON, JR. and SHARON J. WILSON, Defendants, V. BRUCE J. GRAHAM and SHANNON GRAHAM, Additional Defendants. PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANTS TO THE PROTHONOTARY OF SAID COURT: Please issue a writ of to join additional defendants in the above-captioned action. X Writ to Join Additional Defendants shall be issued and forwarded to ( ) Attorney ( X ) Sheriff. r' ti Peter R. Wilson, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Signature of Attorney Attorney I.D. No. 87655 Date: Z 2y 2? WRIT TO JOIN ADDITIONAL DEFENDANTS TO BRUCE J. GRAHAM AND SHANNON GRAHAM, WITH A LAST KNOWN ADDRESS OF 13 MAPLELEAF ROAD, SHAVERTOWN, PENNSYLVANIA 18708: YOU ARE NOTIFIED THAT THE ABOVE-NAMED DEFENDANTS, PETER R. WILSON, JR. AND SHARON J. WILSON, HAVE JOINED YOU AS ADDITIONAL DEFENDANTS IN THIS ACTION, WHICH YOU ARE REQUIRED TO DEFEND. Date: f ;LS aGUy d'f_? o? (Deputy) Protho otarL ? /?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, . Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants, BRUCE J. GRAHAM and SHANNON GRAHAM, Additional Defendants. No. 08-6647 Civil Term ACTION IN TRESPASS CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid as follows: Gary E. French, Esquire 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs Cornelius J. Keim, III and Linda L. Keim Dated: ;? z,'?-, -0607 Peter R. Wilson, Esquire Attorney for Defendants r-a V ? _1r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. . PETER R. WILSON, JR. and SHARON J. WILSON, Defendants, V. BRUCE J. GRAHAM and SHANNON GRAHAM, Additional Defendants. NOTICE TO PLEAD To: Cornelius J. Keim III and Linda L. Keim c/o Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17108-1963 No. 08-6647 Civil Term ACTION IN TRESPASS YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED DEFENDANTS' ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, 260 ? Date:? 2-7i RE AGE ADLER, P.C. us E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants REAGER & ADLER, P.C. BY: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: Lfenicle@ReagerAdlerPC.com BY: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: Pwilson@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Defendants Peter R. Wilson, Jr. and Sharon J. Wilson IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and . LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and . SHARON J. WILSON, Defendants, V. BRUCE J. GRAHAM and SHANNON GRAHAM, Additional Defendants. No. 08-6647 Civil Term ACTION IN TRESPASS DEFENDANTS' ANSWER WITH NEW MATTER 1. Admitted upon information and belief. 2. Admitted. 3. Admitted that there are minimal encroachments. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 4. Admitted that there are minimal encroachments. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. Admitted in part and denied in part. Defendants admit that they were notified of potential encroachments, which to date have not been removed, and that Plaintiffs, in their related Action in Ejectment, requested removal of the potential encroachments. Discovery in that Action in Ejectment is ongoing. Recently, Defendants commissioned a survey of the shared boundary line for the purpose of confirming or refuting Plaintiffs' survey. To the extent that an answer is judicially deemed required, Defendants deny each and every remaining factual averment. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 6. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments in Paragraph 6 that the minimal encroachments have caused damage to Plaintiffs as well as physical damage to the areas where the minimal encroachments are located. By way of further answer, Defendants deny the averment that Defendants have refused to verify the extent of their own property, and Defendants incorporate herein by reference their response to Paragraph 5 above, which describes the survey commissioned by Defendants. The remaining averments of Paragraph 6 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 6. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 7. Denied. Defendants deny the averment that Defendants have refused to verify the extent of their own property, and Defendants incorporate herein by reference their responses to Paragraphs 5 and 6, as well as the averments contained in their New Matter, which describe the survey commissioned by Defendants. The remaining averments of Paragraph 7 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 7. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 8. Denied. The averments of Paragraph 8 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 8. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. 9. Denied. The averments of Paragraph 9 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, Defendants deny each and every factual averment. Moreover, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 9. Strict proof thereof is demanded at trial. By way of further answer, Defendants incorporate herein by reference the averments contained in their New Matter, which follows. NEW MATTER 10. Defendants incorporate herein by reference the averments of Paragraphs 1 through 9 above as if set forth fully herein. 11. The Defendants' survey has now been completed, and said survey confirms that minimal encroachments of the retaining wall, pool deck, and fencing exist. A true and correct copy of the Defendants' survey is attached hereto as Exhibit "A", and is incorporated herein by reference as if fully set forth. 12. Plaintiffs' Complaint For Trespass to Land fails to state a cause of action upon which relief may be granted. 13. Plaintiffs' claims are barred due to the doctrine of estoppel. 14. Plaintiffs' claims are barred due the doctrine of laches. 15. Plaintiffs' claims are barred due to the doctrine of waiver. 16. Plaintiffs' claims are barred due to the doctrine of acquiescence. 17. Plaintiffs' claims are barred due to the doctrine of inadvertence. 18. Plaintiffs' claims are barred due to the doctrine of unclean hands. 19. Plaintiffs' claims are barred due to the doctrine of mistake. 20. Plaintiffs' claims are barred due to the doctrine of de minimis, as the minimal encroachments of the Defendants' retaining wall, pool deck and fencing, situated behind Plaintiffs' screening hedgerow of arborvitae, amount to approximately 0.29 percent of the total square footage of Plaintiffs' property (or 58.7 square feet out of Plaintiffs' 19,847 square foot lot)(see, Defendants' Exhibit "A", attached hereto). The minimal encroachment of Defendants' rock garden and the potential minimal encroachment of a portion of Defendants' lawn irrigation system (amounting, if anything, to a single underground sprinkler head) are of such a de minimis nature that they are not specifically addressed in either Plaintiffs' survey or Defendants' survey. 21. Plaintiffs' claims are barred due to the Plaintiffs' failure to mitigate their alleged damages. 22. Plaintiffs' claims are barred by 42 Pa. C.S.A. § 5524. WHEREFORE, Defendants Peter R. Wilson, Jr. and Sharon J. Wilson respectfully request this Honorable Court to enter judgment in their favor and against Plaintiffs Cornelius J. Keim, III and Linda L. Keim, and to dismiss Plaintiffs' Complaint For Trespass to Land with prejudice, costs, and attorneys' fees. Respectfully submitted, REAGER & ADLER, P.C. Dated: February 27, 2009 inus E. Fenicle, Esquire Attorney I.D. No. 20944 Peter R. Wilson, Esquire Attorney I.D. No. 87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Defendants " Ex fl 8 IT "Ac„ • N8225.;00E? ?- 160.98, IRON PIN (FoIJNo) N82'25'00"E NO IR01'IpIN ?F?? ?- TAX PARCELIIO-18-1312-049 D.B. 278 PG. 2684 3611 BELLOWS DRIVE TAX PARCEL110-18-1312-048 O.B. 0 26 PG. 679 3813 BELLOWS DRIVE J ?i 4 14 O t? 3 ?O ENCROACHMENT EASEMENT (SEE DETAIL) R- 173.00' L-52.63' CHW-S6719'53"W CHO0-32.43' 1 LINE TABLE LINE LENGTH BEARING Ll 0.65 S81'02'15'W L2 6.59 N12'59'23'W L3 1.50 N46'15'27'W L4 1.78 N25'52'10'W LS 22.53 N14'44'46'W L6 2.35 N08'27'12'W L7 2.73 N27.00'22'E I hereby certify that this plan is correct and accurate to the best of my knowledge. Professional Land Surveyor - Submitted on this 7-4"- day of 2009. SCOTT AKENS, P.E. P.L.S. AKENS ENGINEERING ASSOC., INC. 219 EAST MAIN STREET ??---- SHIREMANSTOWN, PA. 17011 1 (717) 975-9933 GRAPHIC SCALE 40 0 20 40 y ( IN FEET ) 1 inch = 40 ft. ENCROACHMENT AREA - 58.70 sq.ft. EASEMENT AREA . 58.70 sq.ft. Nw TAX PARCEL#10-18-1312-049 D.B. 278 PG. 2684 3811 BELLOWS DRIVE Ex. Wo// L R-175.00' L-19.76' CHM-S7$10'58"W CHD0-19. y5' NigS,E ? n 1 70-24' C DETAIL OF ENCROACHMENT EASEMENT r3cA E+ r - 20' DATE: 0 r RE0151t7tM 0 CiJipi PROFESSIONAL 1111 SCOTT WILLIAM AKENS LAND SURVEYOR k\Q\ SU075172 e FOR PE7 Ef AND SHAF V BELLOWS DFd A&AVIM TONM9Ht1P r-w AKENS COHrOUFO ASSO MONO 2p 02/20/09 =NT EASEMENT Ft WLLSON JR. M J. WXLSON E CAMP -MLL. PA Ti BtEBET NO. ATEa INC. sr MAN ST. 1 Of 1 o7S-Deiv49 1 . vF.RIFlC.N 1 K) ;L tit ,, ., f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CORNELIUS J. KEIM, III and LINDA L. KEIM, Plaintiffs, V. PETER R. WILSON, JR. and SHARON J. WILSON, Defendants, BRUCE J. GRAHAM and SHANNON GRAHAM, Additional Defendants. No. 08-6647 Civil Term ACTION IN TRESPASS CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individual via United States First Class Mail, postage prepaid as follows: Gary E. French, Esquire 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiffs, Cornelius J. Keim, III and Linda L. Keim Dated: February 27, 2009 Peter R. Wilson, Esquire Attorney for Defendants na ii 73 '1. r.? ry? ".rte SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-06647 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KEIM CORNELIUS J III ET AL VS WILSON PETER R JR ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: GRAHAM BRUCE J but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LUZERNE County, Pennsylvania, to serve the within WRIT TO ADD'L DEFEN. On March 25th , 2009 , this office was in receipt of the attached return from LUZERNE Sheriff's Costs: So answers-: Docketing 18.00 ?- Out of County 9.00 Surcharge 10.00 . Thomas Kline Luzerne County 43.00 Sheriff of Cumberland County 03/25/2009 REAGER & ADLER Sworn and subscribe to before me this day of A. D. -vx L C-,. t Q0 Lt3 t 1 G? N t> SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-06647 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KEIM CORNELIUS J III ET AL VS WILSON PETER R JR ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: GRAHAM SHANNON but was unable to locate Her deputized the sheriff of LUZERNE in his bailiwick. He therefore serve the within WRIT TO ADD'L DF.PRN_ County, Pennsylvania, to On March 25th , 2009 , this office was in receipt of the attached return from LUZERNE Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 So answe?rs?? _ R. Thomas Kline Sheriff of Cumberland County 03/25/2009 REAGER & ADLER Sworn and subscribe to before me this day of A. D. U-1 t .._. C_ ? r #s_ `3 LUZERNE uN SHERIFF'S DEPARTMENT Fax (570) 825-1849 co?rvlY . , 200 NORTH RIVER STREET • WILKES-BARRE, PENNSYLVANIA 18711 (570) 825-1651 ,.. _..011RIFF SERVICE MTRUCTX)M FOR SERVICE OF PROCESS: You must Me one. instruction sheet PROCESS RECEIPT, and AFFIDAVIY OF RETURN ` for'iACH DEFENCAW Please hype or print h4bty. Do Not detach any copies, TIFF(S) 4 n `,"? 1 ? 'A , n /I 2. COURT NUMBER. 3. .44 .0 A's .low V D? 6. S( r R , A rtm t Boro., T to and Z Code). AT 7. INDICATE UNUSUAL SERVICE: ? CERT M ? DEPUTIZE ? ? OTHER Now, 20 ,1, SHERIFF COUNTY, PA., do hereby deputize the Sheriff of County to exec uturn thereof according to law. This deputation being made at the request and risk of the plaintiff. SHERFPOF cOLW v S. SPE CIAL INSTRUCTIONS OR OTNER INFORMATION THAT WILL AS= IN EXPEDITING SERVICE. AMOUNT PAID C7 C) rya rn , xr 3 M __q s 2w 9. PRW/TM NAME AND ADDRM OF ATTORNEY/OMOINATOR Alowor cry trr- N va rTt , 5 ct NORE ONLY APPUCAM ON ww OF UIECUTION: NA L tlIIUM Of WATCMMIN-Any deputy show Iwyinp Won or afloching any property under within wrff may leave same wBhout a watchman, M custody of whomever Is found in possession, after nWOyktp person of levy or attachment, wBfout liability on the part of such atelwty or the shoo to any plakdNt heroin for CM1y saes, destruction or rernoval of any such properly bellm sho fs sob Rrereot • 10. 1 ocknowledpa receipt of Ole wrR of kdhodzed UM Deputy 11. Date led 12. Ei pirotion/Heoring Date or complaint as Indicated above T7/,/Z11 BE COMPLETED BY SHERIFF 13. Served and madeknown to ?G4C )1 Ni Defendant(s) on the _ /0 day of Ma rc- I 20 j4_. at U dck)ck,4-0--K at 13 ?QA r ?Or ? V e r- O ct l or County of Luzema Comma Ith of Pennsylvania, in the manner described below: efendant(s) personally served. ? Adult family member with whom said Defendant(s) reside(s). Relationship is ? Adult In charge of Defendant's residence. ? Manager/Clerk of place of lodging In which Defendant(s) reside(s). ? Agent or person in charge of Defendant's office or usual place of business. ? Other On the day of -.20-, at o'clock, M Defendant not found because: ? Moved • ? Unknown ? No Answer ? Vacant ? Other REMARKS: 0 () RETURNED: '40 $O ANSWERt, 14. AFFIRMED and subscribed to before me this 15. Sig ty g 16. to 17. day of r COMMONWEALTH OF PENNSYLVANIA 2MO OSEAL 1 re of 19. DaI6 20 . _ the ' e M A/A. J urFlfitirg'at1 Mh, hulerne County .. _ MY COMMISSION EX I 211111111111117 OF uIIgRIE COWRY 21. 1 ACKNOWLEDGE 22. Date Received OF AUTHORIZED ISSUING AUTHORITY AND TITLE. WHITE: Prothonotary PINK: Luzerne County Sheriff YELLOW: Attorney ? ? ?. ... \ F Y .. ?..: a.? t _ * r? a; r.: --? ? t ,?? f f. C 1 ? .?r' G? C.r I i C. z, ... - LUZERNE 570) 825-184 COUNTY SHERIFF'S DEPARTMENT Fax (570) 825-1651 200 NORTH RIVER STREET a WILKES-BARRE, PENNSYLVANIA 18711 RIFF SERVICE INSTRUCTIONS FOR SERVICE OF PROCESS: You rr tie one kutruction sheet PROCESS RECEIPT, and AFFIDAVIT OF RETURN ' for EACH DEFENDANT Please type or print lei ,Do Not Iletach any copies. t. ft TiFFCs) - 2. COURT NUMBER /4/1 41 i 3. DEFEN ) 4. E OF OMPL IW 177 A1 SERVE °' 6. AT 7. INDICATE UNUS Now, This deputation being made at the request and risk of the e. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPWITiNO SERVICE. 9. 1110RINT/TY111110E NAME AND ADDRESS OF ATTORNEY/ORIAINATnR AMOUNT PAID 0 SIGNATURE I TELEPHONE NUMBER NOTE ONLY APMOARLE ON WRIT OF EI(ECIITION: N.R. WAIVER OF 11 M CNWIN -Any deputy dwi f levying upon or attaching any prape ty under wBhin writ may leave same wiMout a watchman. In curtody of whomever is found in paawMon. after fldEying person of levy or attachment, wmxKd EablEty on the part of such deputy or the sheriff to any pldMiff herein for any im destruction or removal of any rich property before 0wrEPs sole therea SPAC?? ElELOVII FOR USE OF SHERIFF ONP-Y --- 00 'WRITE SEkO*` 10. l adorowledge rsrcelTft at the wM of AuMrorlxed LCSD Deputy i 1. Filed 12. Expiration/Hearing Date or complaint as krdfcated above C! OMPtETED BY SHERIFF / 13. Served and made known to Q N Yl O 6r Defenddont(s) th f f A&-C 2009 on e day o _. o 1 . dclock.L M. at County of Luzema Com of Pennsylvania, In the manner described below: fendant(s) personally served. ? Adult family member with whom said Defendant(s) reside(s). Relationship is ? Adult In charge of Defendant's residence. ? Manager/Clerk of place of lodging in which Defendant(s) reside(s). ? Agent or person in charge of Defendant's office or usual place of business. ? OMrer On the day of -.20- at o'clock, M. Defendant not found because: ? Moved • ? Unknown ? No Answer ? Vacant ? Other REMARKS: RETURNED: 1 T SO ANSWERS, 14. AFFIRMED and subscribed to before me this 15. SI of riff 16. to COMMONWEALTH OF PENNSYLVANI 3 17. day of her - Cat in . G ernie re ? Wl Sh 1 Dat 20. g , u:erne aunt y MY COMMISSION EX Commlgitstl I f tMBllff OF LIRERNE COUMY 21. I ACKNOWLEDGE 22. Date Received OF AUTHORIZED ISSUING AUTHORITY AND TITLE. and C cl , NIP ` HEiA=16 - 20 , I, SHERIFF C County to ninfiff PA., do hereby deputize the Sheriff of I ma7- WHITE: return thereof according to law. Prothonotary PINK: Luzeme County Sheriff YELLOW: Attorney ?? ro In The Court of Common Pleas of Cumberland County, Pennsylvania Cornelius J. Keim III Linda L. Keim Bruce J. Graham 13 Mapleleaf Road Shavertown, PA 18708 vs. Civil No. 2008-6647 Now, February 27, 2009, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Luzerne County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, /?'lGprL ? L? , 20 , at / 9 o'clock F--M, served the within /-o An upon 23r, n C 6142-yer ii at by handing to a and made known to me this day of ,20 `?? Sworn and subscribed before So answers, the contents thereof. Sheriff of COSTS SERVICE_ MILEAGE_ AFFIDAVIT County, PA IfY" copy of the original J? ?" In The Court of Common Pleas of Cumberland County, Pennsylvania Cornelius J. Keim III Linda L. Keim VS. Shannon Graham 13 Mapleleaf Road Shavertown, PA 18708 Civil No. 2008-6647 Now, February 27, 2009, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Luzerne County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. sue.. ?? of Cumberland County, PA Affidavit of Service Now, 16-c ? /d , 20_09 , at Co'clock _M, served the k, within upon ?n©h ra at by handing to ,A a copy of the original "/- and made known to A e r/ the contents thereof. So answer Sworn and subscribed before me this day of 120_ Sheriff of COSTS SERVICE_ MILEAGE_ AFFIDAVIT County, PA R. THOMAS KLINE Sheriff EDWARD L.SCHORPP Solicitor o0ty of ?untbPr?? CI OFFICE OF THE SHERIFF One Courthouse Square Carlisle, Pennsylvania 17013 February 27, 2009 TO: Hon. Michael Savokinas Luzerne County Sheriff 200 N. River Street Wilkes Barre, PA 18711 Dear Sir: RONNY R. ANDERSON Chief Deputy JODY S. SMITH Real Estate Sergeant RE: Cornelius J. Keim III et al VS Bruce J. Graham et al Writ No. 2008-6647 Civil Writ to Join Additional Defendants Enclosed please find Writ to Join Additional Defendants to be served upon Bruce J. Graham and Shannon Graham, 13 Maaleleaf Road, Shavertown, PA 18708. Please serve on or before 03-27-09. Thank-you Kindly make service thereof and send us your return of service. Enclosed is the advance payment which you requested. Very truly yours, R. Thomas Kline, Sheri ' Cumberland County, Pennsylvania Enclosures: LUZERNE COUNPY SHERIFF'S OFFICE 200 N RIVER STREET WILKES-BARRE, PA 18701 ' TR# 7 REG# 03 OP# 5 03-/06/0-05 ` 03/06/2009 14:37:47 Othr County Civ Proc ACCOUNT#: 100.4L97.36206 FINANCE Receip:#: 196896 TR LINE#: 1 2008-6647 AMT: 19.00 Other Cnty Srv Form ACCOUNT#: 100.4197.36207 FINANCE Receipt#: 196896 TR LINE#: 2 2008-6647 AMT: 2.00 Civil Proc Addtl Def ACCOUNT#: 100.4L97.36214 FINANCE Receip:#: 196896 TR LINE#: 3 2008-6647 AMT: 6.00 Mileage - Deputy #5 ACCOUNT#: 100.0).235024 FINANCE Receip:#: 196896 TR LINE#: 4 2008-6647 AMT: 16.00 Tendered CHECK: 17-06833 43.00 10.0 0 /N,)TARY CHANGE: .00 TOTAL: 43.00 -- TH.3NK YOU -- ************************************** 8c :01 V rl ? b" Ai LIN1 A. Gary E. French, Esquire Keefer Wood Allen & Rahal, LLP Attorneys for Plaintiffs 210 Walnut Street Harrisburg, PA 17101 Ph: (717) 255-8015 Fx: (717) 255-8050 gfrenchL&keeferwood.com CORNELIUS J. KEIM III and IN THE COURT OF COMMON PLEAS OF LINDA L. KEIM, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 08-6647 Civil Term PETER R. WILSON, JR. and SHARON J. WILSON Defendants ACTION IN TRESPASS V. BRUCE J. GRAHAM and SHANNON GRAHAM, Additional Defendants PLAINTIFFS' REPLY TO NEW MATTER NOW COME, Plaintiffs CORNELIUS J. KEIM III and LINDA L. KEIM, by their attorneys Keefer Wood Allen & Rahal, LLP, and file the following reply to Defendants' New Matter: 10. Plaintiffs' corresponding averments are incorporated herein by this reference. 11. Admitted in part; Denied in part. It is admitted that Defendants have now completed their own survey confirming that permanent real estate improvements that they own encroach upon Plaintiffs' land. Defendants' characterization of the encroachments as "minimal" is denied. As set forth in Plaintiffs' Complaint, the encroachments are not only substantial and on-going, but they are also illegal under municipal zoning ordinances as encroaching into the side yard setback allowance. Moreover, the encroachments are unsightly and are causing erosion and other damage to Plaintiffs' property. 12. Denied. Paragraph 12 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent that a response is deemed required, said averment is denied. 13. Denied. Paragraph 13 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent that a response is deemed required, said averment is denied. 14. Denied. Paragraph 14 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent that a response is deemed required, said averment is denied. 15. Denied. Paragraph 15 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent that a response is deemed required, said averment is denied. 16. Denied. Paragraph 16 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent that a response is deemed required, said averment is denied. 17. Denied. Paragraph 17 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent that a response is deemed required, said averment is denied. -2- 18. Denied. Paragraph 18 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent that a response is deemed required, said averment is denied. 19. Denied. Paragraph 19 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent that a response is deemed required, said averment is denied. 20. Denied. Defendants' encroachments are only partially screened by foliage. Depending upon the vantage point of the viewer, a large portion of the encroachments is readily visible and is unsightly. The law does not protect trespassing encroachments simply because the trespasser plants screening in an effort to conceal their existence. 21. Denied. Paragraph 21 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent that a response is deemed required, said averment is denied. 22. Denied. Paragraph 22 of Defendants' New Matter states a conclusion of law to which no response is required. To the extent that a response is deemed required, said averment is denied. -3- Respectfully submitted, Dated: April ,o-2- , 2009 KEEFER WOOD ALLEN & RAHAL, LLP By??f/JL Gar-?'E. French, Esquire Attorney I.D. 25810 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Ph: (717) 255-8015 Fx: (717) 255-8050 Attorneys for Plaintiffs, Cornelius J. Keim III and Linda L. Keim -4- Apr 02 09 10:47a Skip Keim 717-737-4700 p.2 VERIFICATION We, Cornelius J. Keim and Linda L. Keim, hereby certify that the facts in the foregoing Reply to New Matter are true and correct to the best of our knowledge, information and belief, and further state that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Cornelius J. Keim III Lifida L. Keim Dated: April , 2009 CERTIFICATE OF SERVICE I, Gary E. French, Esquire, attorney for Plaintiffs, hereby certify that I have served the foregoing Amended Complaint upon Defendants this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Linus E. Fenicle, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 Peter R. Wilson, Esquire Reager & Adler, P. C. 2331 Market Street Camp Hill, PA 17011 KEEFER WOOD ALLEN & RAHAL, LLP B f G Gary E. French Dated: April 4 , 2009