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08-6880
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVAIS No. D - ?oIgo Uiyi FRANK E. LENTZ, III and CHERYL F. LENTZ 1890 Lamb's Gap Road Mechanicsburg, PA 17050 Civil ction - ? M dical Professional Liability Action INSITE DEVELOP ENT, LLC 1943 Monterey Driv Mechanicsburg, PA 7050 and NEISWONGER CO STRUCTION, INC. 17592 Route 322 vs Strattanville, PA 16 58 Plaintiff(s) & Address(es) Defe PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. f Writ of Summons shall be issued and forwarded to ? Attorney ®S er Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 s) & Address(es) Supreme gourt ID No. 19255 Date: Name/Address/Telephone No. of Attorney WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S) Insite Development, LLC and YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HASH, AGAINST YOU. _ ,vonger Construction, Inc. COMMENCED AN ACTION Date: / IpR by ? Check here if reverse is issued for additional information. Deputy '6 - c o 0 SHERIFF'S RETURN - REGULAR + CASE NO: 2008-06880 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LENTZ FRANK E III ET AL VS INSITE DEVELOPMENT LLC ET AL TIMOTHY BLACK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon TNSTTE DEVELOPMENT LLC the DEFENDANT , at 1721:00 HOURS, on the 3rd day of December-, 2008 at 1943 MONTEREY DRIVE MECHANICSBURG, PA 17050 by handing to PATRICIA ERWIN, VICE PRESIDENT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.70 Affidavit .00 Surcharge 10.00 1I/rg10 F ('- 00 39.70 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 12/16/2008 ROBERT RADEBACH By eputy Sheriff A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-06880 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LENTZ FRANK E III ET AL VS INSITE DEVELOPMENT LLC 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: NEISWONGER CONSTRUCTION INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of CLARION County, Pennsylvania, to serve the within WRIT OF SUMMONS On December 16th , 2008 , this office was in receipt of the attached return from CLARION Sheriff's Costs: So answers: Docketing 6.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Clarion Cc 45.00 Sheriff of Cumberland County Postage 1.18 71.18 V J,2/ j Gib 12/16/2008 ROBERT RADEBACH Sworn and subscribe to before me this day of , A. D. In The Court of Common Pleas of Cumberland County, Pennsylvania Frank E. Lentz III et al vs. Insite Development LLC et al SERVE: Neiswonger Construction Inc Now, November 24, 2008 No. 08-6880 civil I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Clarion County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, December 4 20 08 , at 3:31 o'clock P M. served the within Writ of Summons upon Neiswonger Construction Inc. at 17592 Rt. 322, Strattanville, PA 16248 by handing to William Klingensmith, Office Manager and adult in charge a certified and made known to William Klingensmith copy of the original Writ of Summons the contents thereof So answers, Sworn and subscribed before me this &'/ ,day of j,,,,,/, 04 f"' COSTS SERVICE _ MILEAGE _ AFFIDAVIT NOTARIAL SEAL DOLORES M. SCHMADE Notary P $ Knox nox To ownship, Clarion County ublic My Commission Expires November 10, 2011 ?)(, ?1 hagamg,,?= Dep ySheriff of Cl ion County, PA Katie Kaczmarczyk Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs : CIVIL ACTION - LAW V. DONALD H. ERWIN and : NO. 2008-06880 PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and : JURY TRIAL DEMANDED NEISWONGER CONSTRUCTION, INC., 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 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-3166 Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs CIVIL ACTION - LAW NO. 2008-06880 V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs, Frank E. Lentz, III and Cheryl F. Lentz, his wife are adult individuals residing at 1890 Lambs Gap Road, Mechanicsburg, PA 17050. 2. Defendants, Donald H. Erwin and Patricia A. Provenzano, his wife are adult individuals 1943 Monterey Drive, Mechanicsburg, PA 17050. 3. Defendant, Insite Development, LLC., is a Pennsylvania limited liability company with offices located at 1943 Monterey Drive, Mechanicsburg, PA 17050. 4. Defendant, Neiswonger Construction, Inc., is a Pennsylvania corporation with offices located at 17592 Route 322, Strattanville, PA 16258. 5. Plaintiffs are the owners of land located in Hampden Township, Cumberland County, Pennsylvania which they acquired in 1973, by deeds dated May 10, 1973 and recorded in Cumberland County Deed Book D-25, Page 522 and Deed Book D-25, Page 524, which premises are bounded and described as follows: Tract No. 1: ALL that certain tract of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point in the center of a public road known as the Lamb's Gap Road, corner of land now or formerly of Richard H. Anthony; thence along the center line of said public road, North 36 degrees 2 minutes East, 349.8 feet to a nail in the center of said road; thence continuing along said road, North 1 degree 28 minutes East, 60 feet to a spike in the road; thence along the line of lands now or late of Claire E. Twitchell, South 83 degrees East, 94 feet to a stake; thence along the line of lands of the same and crossing a stream, South 3 degrees 45 minutes East, 308.5 feet to a stake in the line of lands now or formerly of Richard H. Anthony, aforesaid; thence along said line of lands now or formerly of Richard H. Anthony, South 86 degrees 15 minutes West, 326.7 feet to a point in the center of the Lamb's Gap Road, aforementioned, at the place of BEGINNING. The above description is prepared from survey made October 13, 1956 by William G. Rechel, a registered surveyor. BEING the same premises which Max L. McCombs and Esther McCombs, his wife, by their deed dated April 4, 1969 recorded in Deed Book "P", Volume 24, Page 492, granted and convoyed unto Richard H. Anthony and Nancy T. Anthony, his wife, the Grantors herein. TRACT NO. 2: ALL that certain piece or tract of land situate in Hampden Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a stake at the southeastern corner of land now or formerly of Donald L. Waltz, thence along land now or formerly of Donald L. Waltz, North 03 degrees 45 minutes West, 308.5 feet to a stake; thence along land now or formerly of Donald L. Waltz North 83 degrees West, 94 feet to a spike in the center of the Lambs Gap Road; North 01 degrees 28 minutes East, 22 feet to a point; thence along a proposed 40 foot street, North 88 degrees East, 802 feet to a point; thence along lands now or formerly of Harry Stone Estate, South 04 degrees 15 minutes East, 309 feet to a white oak; thence along lands of Richard H. Anthony, South 86 degrees 15 minutes West, 717.5 feet to a stake, the Place of BEGINNING. The area of the enclosed land being 5.4 acres, more or less. BEING the same premises which Clair T. Grant, formerly known as Claire E. Twitchell and Harvey M. Grant, her husband, by deed dated February 16, 1968, recorded in Deed Book R, Volume 22, Page 138, Cumberland County records, granted and conveyed unto Richard H. Anthony and Nancy T. Anthony, the Grantors herein. 6. Defendants Erwin and Provenzano are the owners of land located in Hampden Township, Cumberland County, Pennsylvania which they acquired in 2003, by a deed dated September 4, 2003 and recorded in Cumberland County Deed Book 259, Page 582, which premises are bounded and described as follows: ALL THAT certain tract or piece of land situate in the Township of Hampden, County of Cumberland, State of Pennsylvania, bounded and described as follows to wit: BEGINNING along the intersection of the center line of Wertzville Road and Lambs Gap Road, the following courses and distances: (1) South 26 07 17" East, a distance of 82.05 feet; (2) along a curve to the right with a radius of 1714.00 feet and an arc length of 194.37 feet; (3) South 19° 37'26" East, 257.49 feet; (4) along a curve to the fight with a radius of 5309.07 feet and an arc length of 57.40 feet; (5) along a curve to the right with a radius of 5309.07 and an arc length of 92.79 feet; (6) South 21 ° 11' 22" East, 105.87 feet and (7) along a curve to the right with a radius of 2834.00 feet and an arc length of 45.12 feet to a point, the Point of Beginning: thence along Lambs Gap Road, along a curve to the right South 18° 33'30" East, with a radius 2834.00 feet and arc length of 85.02; thence South 18° 33' 30" East, 207.52 feet to a point; thence along a curve to the right with a radius of 1572.42, length of 221.00 feet to a point along the same; thence along a curve to the right with a radius of 243.53 feet, arc length of 72.07 to a point at lands now or formerly of James Miller and Jack D. Herd; thence continuing North 89° 18'00" West, a distance of 152.94 feet to a point; thence along the same, South 54° 52'00" West, 177.78 feet; thence along the same North 70° 16'00" West, 149.95 feet; thence along the same South 41 ° 11' 54" West, 194.84 feet to a point at lands now or formerly of Insite Development, LLC and Jack D. Herd; thence continuing North 19° 55' 15" West, a distance of 617.94 feet to point along Lot 2 and Lot 3 of said Plan, North 69° 43'59" East, 219.88 feet to a point; thence along Lot 2, South 65° 05'38" East, a distance of 70.50 feet to a point; thence along the same, North 69°43' 59" East, 379.35 feet to the Point of BEGINNING. BEING known as Lot #3 of Plan of Dr. Jack D. Herd recorded in Plan Book 77 page 131 on November 6, 1998. UNDER AND SUBECT to all Acts of Assembly, county and township ordinances, rights of public utility and public service companies, existing restrictions and easement, visible or of record, to the extent that any persons or entities have acquired legal right thereto. 7. Defendants Erwin and Provenzano have developed the premises described in Paragraph 6, together with adjoining tracts owned by Insite Development, LLC, as a residential subdivision called "Hawk Landing" as more fully described in a plan filed in Cumberland County Records on January 23, 2007 in Plan Book 93, Page 107, which is incorporated by reference thereto and which is hereby made a part hereof. 8. Plaintiffs are informed and believe and therefore aver that on February 19, 2008, the Defendants, Erwin, Provenzano and Insite Development, LLC, by and through their agent, Neiswonger Construction, Inc., entered upon the lands of Plaintiffs, within the area covered by the deed descriptions set forth in Paragraph 5, above, which are wetlands traversed by a tributary of Sears Run, without consent or legal right and commenced to remove trees, shrubs and vegetation in preparation for excavation and installation of a sanitary sewer line connecting the Hawk Landing development to the public sewer system of Hampden Township Sewer Authority. 9. Plaintiffs aver that the defendants never contacted Plaintiffs regarding any such clearing, grubbing or excavating, and that Plaintiffs never granted any permission to Defendants to enter upon the lands of Plaintiffs, so that such entry constituted a trespass. 10. By the time Plaintiffs learned of the activities perpetrated by the Defendants and their agents upon the lands of Plaintiffs, substantial damages had been made to the lands of the Plaintiffs, as well as to the wetlands thereon located. 11. Plaintiffs were required to have their lands surveyed to confirm that the Defendants had trespassed upon the Plaintiffs' lands. A copy of the survey, dated July 17, 2008 and deed resultant therefrom was recorded in Cumberland County Records on September 12, 2008 as Instrument 200830915 - a copy of which is attached hereto marked Exhibit A, which is hereby made a part hereof. 12. The aforementioned survey depicts the lands upon and over which the Defendants had acquired an easement from the property owner on the north, see Cumberland County Instrument No. 200827373 - a copy of which is attached hereto marked Exhibit B. 13. Plaintiffs aver that the expense to value the damages to the lands of Plaintiffs was $450.00. 14. Plaintiffs aver that the costs to survey lands of Plaintiffs was $3,585.50. 15. Plaintiffs aver that the damages incurred to the lands of Plaintiffs amounted to $48,650.00, as more fully detailed in an Arborists report from About Trees, a copy of which is attached hereto, and which is hereby made a part hereof, as Exhibit C. 16. Plaintiffs aver that the trespass upon their lands was deliberate and intentional, and that under section 8311 of the Judicial Code of Pennsylvania, 42 Pa. C.S.A. §8311(a) (2)(1), Plaintiffs are entitled to treble damages amounting to $145,950.00. WHEREFORE, Plaintiffs demand judgment against the Defendants for the timber appraisal, the survey and treble damages, as aforesaid, for a total amount of $149,985.50. Rdbert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 I.D. 19255 Attorney for Plaintiffs We verify that the statements made in this Complaint are true and correct. We understand that false statements herein are made subject to the penalaes of 18 Pa. C.S.A. §4904 relating to unsworn falsification to author" ' Dated: "A if INOWe LE Z. I I I 30 9!s TAX PARCEL#10-14-0842-006. FEE SIMPLE DEED THIS INDENTURE, made the day of September in the year of our Lord Two Thousand Eight (2008). BETWEEN Frank E. Lentz, III and Cheryl F. Lentz, husband and wife, of Hampden Township, Cumberland County, Pennsylvania, Grantors, Parties of the First Part, AND Frank E. Lentz, III and Cheryl F. Lentz, husband and wife, of Hampden Township, Cumberland County, Pennsylvania, Grantees, Parties of the Second Part, WITNESSETH that the said Parties of the First Part, for and in consideration of the sum of One and No/100 Dollars ($1.00), lawful money of the United States of America, well and truly paid by the said Parties of the Second Part to the said Parties of the First Part, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed and by these presents do grant, bargain, sell, alien, O enfeoff, release, convey, and confirm unto the said Parties of the Second Part, their p heirs, executors and administrators. ALL that certain piece, parcel or tract of land, together with the improvements erected, situate in Hampden Township, Cumberland County, Pennsylvania, described in accordance with a survey and plan thereof, prepared by Act 1 Consultants, Inc, dated July 17, 2008, a copy of which is attached hereto as Exhibit A. which is hereby made a l part hereof, which premises are bounded and described as follows, to wit: BEGINNING at a pk nail in the bed of Lamb's Gap Road at the corner of lands now or formerly of Robert Gross; thence along same, North thirty-three degrees (33°) thirty-four minutes (34') twenty-six seconds (26") East, the distance of three-hundred forty-nine and eighty hundredths feet (349.80') to a P. K. nail in the bed of Lamb's Gap Road; thence North one degree (01 °) thirty-six minutes (36') twenty-eight seconds (28") East, the distance of one hundred and thirty-nine hundredths feet (100.39') to a P. K. nail in the bed of Lamb's Gap Road; thence North fifteen degrees (15°) seven minutes (07') zero seconds (00") East, the distance of twenty and sixty-seven hundredths feet (20.67') to a P. K. nail in the bed of Lamb's Gap Road at line of lands now or formerly of James Yaple, Jr.; thence along same, North eighty-five degrees (85°) twenty-three minutes (23') thirty-six seconds (36") East, the distance of three hundred sixty-four and thirty hundredths feet (364.30') to a pipe found at the line of lands now or formerly of James S. Yaple, Jr.; thence along same, South twenty-three degrees (23°) twenty minutes (20') four seconds (04") East, the distance of thirty-five and forty-nine hundredths feet (35.49') to an iron pin found; , thence continuing along same, North eighty-seven degrees (87°) twenty-six minutes (26') twenty seconds (20") East, the distance of four hundred sixty-three and seventy- four hundredths feet (463.74') to an Iron pin set at line of Lot No. 8, of a plan recorded in Cumberland County Plan Book 72, Page 25; thence along same and continuing along line of Lot No. 9 on said Plan, South six degrees (06°) seventeen minutes (17') thirty-three seconds (33") East, the distance of three-hundred seventeen and forty hundredths feet (317.40') to a pin found at line of lands now or formerly of the Builder Preferred Development Group, LLC; thence South eighty-four degrees (84°) fifty-two minutes (52') twenty-six seconds (26") West, the distance of four-hundred twenty-eight and eleven hundredths feet (428.11') to a pin found at the comer of the lands now or formerly of Robert Gross; thence along lands now or formerly of Robert Gross, South eighty-three degrees (830) sixteen minutes (16') thirty-seven seconds (37") West, the distance of six-hundred forty- four and fourteen hundredths feet (644.14') to the pk nail found at the point and place of BEGINNING; CONTAINING 7.502 Acres of land. HAVING thereon erected a two-story frame dwelling, known and numbered as 1890 Lambs Gap Road, Hampden Township, Cumberland County, Pennsylvania. BEING Identified as Cumberland County Tax Mapping Parcel: BEING a combined legal description of three tracts of land, the first, BEING the same premises which Richard H. Anthony and Nancy T. Anthony, husband and wife, by deed dated May 10, 1973, and recorded in Cumberland County Deed Book 25-D, Page 522, granted and conveyed unto Frank E. Lentz, III and Cheryl F. Lentz, Grantors herein, and the second BEING the same premises which Richard H. Anthony and Nancy T. Anthony, husband and wife, by deed dated May 10, 1973, and recorded in Cumberland County Deed Book 25-D, Page 524, granted and conveyed unto Frank E. Lentz, III and Cheryl. F. Lentz, Grantors herein, and the third BEING a portion of the bed of an unop ned street sh on a subdivision plan recorded in Cumberland County Plan Book, Page , which has been possessed and maintained by the Grantors since May 10, 1973. 7R ?NSthe Together and singular thbuildings FA - ways, X?? 9 Proveme ys, streets alleys passages waters, watercourses, rights, liberties, privileges, hereditaiments and appurtenances, whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the reversion and remainders, rents, issues and profits thereof; and all the estate, right, title, Interest, property, claim and demand whatsoever of them, the said Grantors, as well at law as in equity, of, In and to the same. TO HAVE AND TO HOLD the said lot or piece of ground above described, with the messuage or tenement thereon erected, hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances unto the said Grantees, their heirs and assigns, to and for the only proper use and behoof of the said Grantees, their heirs and assigns, forever. UNDER AND SUBJECT, nevertheless, to certain conditions and restrictions of record as aforesaid. AND the said Grantors, for themselves, their heirs, executors and administrators, do covenant, promise and agree, to and with the said Grantees, their heirs and assigns, by these presents, that they, the said Grantors and their heirs, all and singular the hereditaments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the said Grantees, their heirs and assigns, against them, the said Grantors and their heirs, and against all and every person and persons whomsoever lawfully claiming or to claim the same or any part thereof, by, from or under him, her, them or any of them, shall and will, Subject as aforesaid, WARRANT AND FOREVER DEFEND. IN WITNESS WHEREOF, the said Parties of the First Part, have hereunto set their hancand seals the day and year first above written. Witness: f, (SEA ?4)1 G COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF DAUPHIN On this, the day of , 2008, before me, a Notary Public, the undersigned officer, persona appeared Frank E. Lentz, III and Cheryl F. Lentz, husband and wife, known to me (or satisfactorily pro ) to be the persons whose names are subscribed to the within instrument, a owledg ey executed the same for the purpose therein contained, ' IN WITNESS WHEREOF, I hereunto set my han al e COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL ROBERT G. RADEBACH, Notary Public Notary Public Halifax Township, Dauphin County I heret IS - PRI $aiKf ess of the Grantees in the within Deed is: 1890 Lambs R ad Mechanicsburg, PA 7050 for 4R- .Off W 1: ?o ? E w 14 I ' M1 T • tt M • , ?i P w not y ?R 't\?e i y e N ,. MOO 7 tN F w ? r 19 r? ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200830915 Recorded On 9/12/2008 At 8:33:44 AM * Instrument Type - DEED Invoice Number - 28805 User ID - JM * Grantor - LENTZ, FRANK E & CHERYL F III * Grantee - LENTZ, FRANK E III * Customer - R RADEBACH * FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $10.00 JUSTICE RECORDING FEES - $21.50 RECORDER OF DEEDS AFFORDABLE HOUSING $11.50 COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 CUMBERLAND VALLEY SCHOOL $0.00 DISTRICT HAMMEN TOWNSHIP $0.00 TOTAL PAID $48.50 * Total Pages - 4 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA RECORDER OF D2DS * - Information denoted by an asterisk may change daring the verification process and may not be reflected on this page. 1111NE11111 2 73 DEED OF EASEMENT THIS INDENTURE made this 9k day of Z0 t. , 2008, by and between JAMES S. YAPLE, Jr., and JUNE I. YAPLE, adult individuals, of Hampden Township, Cumberland County, Pennsylvania, hereinafter collectively referred to as "Grantors" AND HAMPDEN TOWNSHIP SEWER AUTHORITY, with its principal offices at 230 South Sporting Hill Road, Hampden Township, Cumberland County, Pennsylvania, hereinafter called "Grantee" WHEREAS, Donald Erwin and Provenzano are the owners of a tract of land situate in the Township of Hampden, County of Cumberland, Commonwealth of Pennsylvania, more particularly described in Deed recorded on September 5, 2003, in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book 295, Page 582; and WHEREAS, Insite Development is the owner of a tract of land situate in the Township of Hampden, County of'Cumberland, Commonwealth of'Pennsylvania, more particularly described in a Deed recorded on July 31, 2002, in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book 252, Page 4746; and WHEREAS, Grantors James S. Yaple, Jr., and June I. Yaple, are the owners of two tracts of land along Lambs Gap Road, Hampden Township, Cumberland County, Pennsylvania, which are more particularly described in Deeds recorded in the Cumberland County Recorder of Deeds Office in Deed Book 256, Page 4230, and Deed Book 256, Page 4236; and WHEREAS, Insite Development intends to construct, as part of a project known as Hawk's Landing, in part on its lands , in part on lands of Grantors Erwin and Provanzano, and in part on the 1,?F x ?/ 4 2 j-.- 6 lands of the Yaples described above, a sanitary sewer line and all facilities related thereto which line and facilities will be dedicated to the Grantee, and Grantors are desirous of granting unto Grantee an easement in the lands of Grantors, being a portion of the properties described in the Deeds referred to above; and NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree and covenant as follows: 1. Grantors hereby grant and convey to Grantee, its successors and assigns, forever, an easement and a free, uninterrupted, and unobstructed right-of-way for the purpose of installing, constructing, erecting, laying, using, operating, maintaining, inspecting, removing, repairing, relaying, enlarging and adding to from time to time a sewer line including conduits, pipes, manholes, drains, and accessories and appurtenances, upon, over and under the lands of Grantors hereinafter described, together with all rights in ingress, egress, and regress into, over, upon, through, along and from said land which are necessary or convenient for full and complete use by the Grantee, its successors or assigns, of the said rights-of-way and easements, and for the exercise of said rights and privileges herein granted, to place surface markers beyond said strip, to clear and keep cleared all trees, roots, brush and other obstructions from the surface and sub-surface of said rights-of-way, and to install gates and styles in any fence crossing said rights-of-way. 2. Grantors have agreed to execute this Deed based on assurances from Insite Development, LLC that certain conditions shall apply to any sewer construction on the Grantors' property, which conditions are set forth below: (a). Sewer construction activities shall only take place between the hours of 7:00am and 6:00pm, Monday through Friday. (b). Due to the fact that the Grantors' land being made subject to this easement is pasture land used by their horses, the area shall be secured during construction so as to protect the horses from injury. (c). The existing fencing in the area of the easement shall be restored to the same exact condition that now exists.. It is agreed that Pro-Fence will be used to remove and replace the fencing on the Yaple property. Gates shall be installed in the fence at appropriate areas to allow access to the easement area by the Grantee. (d). No burning shall take place on the Grantors' property. (e). No dynamite shall be set off on the Grantors' property. (f). Any ground that is disturbed shall be restored and replaced as pasture grass. (g). Any soil that is disturbed shall be rolled and tamped every three feet. (h). The entire easement area on the Yaple properly shall be staked out prior to the commencement of construction. (i).. Laterals for water and natural gas, will be extended by Insite Development fi-om the Pennsylvania American and tJGI mains, respectively, being installed in the Lambs Gap Road right- of-way, to the house at 1920 Lambs Gap Road at locations agreed upon by the Yaples and the public utilities.. The approximate location of the laterals is as shown on Exhibit "A" hereto. (j). It is agreed by the Grantors' that the Grantee Authority shall no have responsibility for compliance or to ensure compliance with the conditions set forth above during the initial construction of sewer facilities by Insite. Development, LLC, in the easement area. Grantee shall pay to Grantors for this conveyance, along with all the other rights and privileges granted to it herein, the sum of One ($1.00) Dollar and other valuable considerations, the receipt of which is hereby acknowledged. 4. The dimensions and location of the right-of-ways and easements herein granted are as set forth in Exhibit "B" which is attached hereto and made a part of this instrument. 5. Grantee shall, in connection with the exercise of any rights under the aforesaid rights- of-way and easements, restore the surface ofthe said easement to as nearly as practicable, its contour and condition as existed prior to the exercise of any of said rights. Grantee shall have no responsibility for the replacement of trees, bushes, shrubbery, plants, sod or other plantings within the limits of said easement and right-of-way. Additionally, Grantee shall have no responsibility for the restoration and/or replacement of curbing, sidewalks, concrete work, paved areas, and/or any impervious material located within the easement area, such replacement being the sole responsibility of the Grantors and their successors and assigns. 6. Grantors shall have full use and enjoyment of said right-of-way surface except for the purposes herein granted to Grantee; and provided, however, that the said Grantors shall not construct or permit to be constructed or maintained any house, structures, or obstructions on or• over said easement nor do any other acts that will interfere with the construction, maintenance or operation of any sewer line or appurtenances constructed in connection therewith and, further, that said Grantors will not change the grade over said sewer line. 7. The word Grantors herein means and includes all those persons named as such at the beginning of this document, and the words Grantors and Grantee shall include the parties hereto and 4 their respective heirs, executors, administrators, successors and assigns as the case may be. It is agreed by both parties that this Deed of Easement shall be recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania. IN WITNESS WHEREOF, Grantors have caused this Deed of Easement to be executed • the day and year first above written. WIT:;? )2j IVIES S. YAPLE, 1?-, r JUVE I. YAPLE The Hampden Township Sewer Authority, by the signing of this document by its officers as set forth below evidences acceptance of the provisions of this Deed of Easement to the extent applicable to it. A S : HAMPDEN T WNSHIP SEWER AUTHORITY yr ) L- BY: Insite Development, LLC hereby agrees to b nd to a Grantors by the provisions of Paragraph 2 hereof and agrees to indemnify, defend and hold harmless Grantors from and against any damage, liability, lawsuit ordeficiency, including reasonable attorney's fees, and other costs and expenses incident to any claim, suit, action or proceeding arising out of or in connection with any failure by Insite Development, LLC to comply with the conditions set forth in Paragraph 2 hereof. ATTEST: INSITE DEVELOPMENT, LLC BY: / prey, l Dn', W f nw);-1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF Ci %p 1r On this, the da of , 2008, before me, the undersigned officer, personally appeared ho acknowledged himself to be the of Insite Development, LLC, a Pennsylvania limited liability company, and that 'King authorized to.. do so as such officer executed the foregoing instrument for the purposes therein contained on b>QIj'a'?'f'4** of Insite Development, LLC. ''?"`Y• ; 'c""`• WITNESS my hand and seal the day and year aforesaid. 4 No Er Public ; (SEAL) CQMMpNWEN? NNSYLVANIA y Mygp,?t SON --'w21%2010 COMMONWEALTH OF PENNSYLVANIA Memi w, Pe""tyi"B"iaAt°ociY of No"s COUNTY OF 1%Ay h4[hi On this, the q* day of ZV LI , 2008, before me a Notary Public, the undersigned officer, personally appeared James S. Yaple, Jr., and June I. Yaple, known to me(or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, who acknowledged that they executed the foregoing Deed of'Easement for the purposes set forth therein. WITNESS my hand and seal the day and year aforesaid. Notary Public (SL-AL) ALTM 2 PENNSYLVANIA NOTARI SEAL CHBYL L. FUgON, Noffrtry hlNc MMmit?? i, 2012 COMMONWEALTH OF PENNSYLVANIA COUNTY OF l_VW4,fIr,vlc1 On this, the A )?% day of L? 2008, before me, the undersigned officer, personally appeared JOHN GASPICH, who acknowledged himself to be the CHAIRMAN of the HAMPDEN TOWNSHIP SEWER AUTHORITY and that being authorized to do so as such officer executed the foregoing instrument for the purposes therein contained on behalf of the Authority. WITNESS my hand and seal the day and year aforesaid. N Pub I (SEAL) MMONWtq? ; H C?F fFNNSVLV*N1A NCB! 7Kin E4 JUDY K RORcn .,r,, ? Public Hampden Tirp : Cumoerl County sign expires March 2?, CERTIFICATE OF RESIDENCE I HEREBY CERTIFY that the precise residence and complete post office address of the within named Grantee is: 230 SOUTH SPORTING HILL ROAD MECHANICSBURG, PA 17050 luvol R(?'n;!? r??orrr ?. AR OL r t I f i 1 / Its 1 If! t t , is, r......... .t? ??t .?f .1 r- I i ? yr ?r ? ? ' ? ? s I .410 r.Ir ' \' •' .J ,,•r,,,rr...r?.•f r .,wr,f'r_ r•r\ ` f j`.t ? 1 • • r • .r + .• ? t r Art t ? '? • • s3. • J} ? r r f It f ?•?+? ,'3• :??'.?±?? 1 .• , ; ! f •7 ."rQ a ?• • ?xHlBR C oa Z3 ?o n vi m +, / I ?OD o.. 00 a (pu-4) ON N bon U? i t0 f" S Sl I o? M )a ? ! C ! ! 1 1 1 ocl? 1o O r?0 I CANN X0 4. N O i c SSW ? , Od ?? }s bu!}six3 OAI< o+ 0`ILOW pull od di45uµ }4518 X a?AD*-) au!l N 1 I I 2 S r( A (( v w CO 0 LA 0 4 1 1 r N co I N 0 Ir I ? Z ? O I co 1-s g 1? Irt oono I ?k1. AC I a 1" c j ?OO?f? O I I rn N I i > 1 A N v I m N 1 Z / I D 1 D I 1 3 L N rrl N m I w rr, / / ?a / 5?IL? 'o . o, n tO• ' . S? ti o? J• /Je?a 0? I 00 JOS t yI/ 0 lap NOWK IN/d i A. KWO an.C• , q do ZM Hardq. PM W md T Cwiryb.?a.%PA+ro1o Twi d Td (777) 5384M Fm(717)83CM C.maWNW A. Ti wWWIA ka.m Ai. CMaWSMEnpYruYq•Lan&rwM•arowaMdYrrA Az / I I SANITMtY IRE?ER EASOASNT JAMES S. YAPLE. JR. NAP= W SOW - CUMBORMq COUNTY. PA EXHIBIT IRA LRHii''\ Lake Roeder Hillard & Associates 1%[ay 14, 2008 LEGAL DESCRIPTION 30-:i+00T WIDE SANITARY SEWER EASEMENT JAMES S. YAPLE, JR., (GRANTOR) 313 W. Liberty St.. Suite I Lancaster, PA 17603 (717) 397-9037 Fax (717) 397-9098 www.LRHA.com ALL THAT CERTAIN 30-foot wide strip of land to be reserved as a sanitary sewer easement along the southerly line of lands of the Grantor herein, on the easterly side of Lambs Gap Road (SR 1011), in the Township of I-lampden, County of Cumberland, and Commonwealth of .Pennsylvania, as the same appears on an Exhibit Plan James S. Yaple, Jr., Sanitary Sewer Easement, bearing plan date of May 14, 2008, prepared by LAKE RO.EDER HILLA.RD & ASSOCIATES, Civil Engineers, Land Surveyors, and Landscape Architects, Campbelltown, PA, Project No. 07C021D, and all the same being more fully bounded and described as follows: BEGINNING at the southwesterly corner of the herein-described easement, a point on the easterly dedicated Tovniship right-of-way line for Lambs Gap Road (SR 1011), said point being on the northerly line of lands now or late of Frank E., III and Cheryl F. Lentz and said point of beginning also being 25.47 feet easterly of a railroad spike found in Lambs Gap Road near the middle thereof; thence from the point of beginning along the aforesaid dedicated Township right-of-way line, along the are of an 587.85-foot radius curve to the left, 30.12 feet to a point, a chord distance of 30.12 feet and said curve subtended by a bearing of North 09 degrees 49 minutes 03 seconds West; thence in and through lands of the Grantor herein the following two courses and distances: (1) North 85 degrees 19 minutes 48 seconds East a distance of 321.89 feet to a point on the westerly line of an existing 30-foot wide sanitary sewer easement; thence (2) along the westerly line of said easement, South 30 degrees 35 minutes 50 seconds East a distance of 33.36 feet to a point in line of lands now or late of Frank E., III and Cheryl F. Lentz and said point being 5.19 feet westerly of a'14-inch rebar fotand; thence along said lands of Lentz, South 85 degrees 19 minutes 48 seconds West a distance of 333.77 feet to the point of beginning. CONTAINING: 9,832 square feet DEED REFERENCE: 256-4236 E',07Cxx\67CU211)U cgalskyople sanitary Sewer Esmt Legal.doc Office Locations: Lancaster Oxford Thorndale Campbelltown New Holland Coatesville Reading Wwirg- ..nusi;?;tpeAi Earth S, iercr- Tr,-die c^-1gsn^erw ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200827373 Recorded On 8111/2008 At 3:26:52 PM * Instrument Type - RIGHT OF WAY Invoice Number - 26877 User ID - KW * Grantor - YAPLE, JAMES S JR * Grantee - HAMPDEN TWP SEWER AUTHORITY * Customer - COOPER * FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $10.00 JUSTICE RECORDING FEES - $23.50 RECORDER OF DEEDS COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 CUMBERLAND VALLEY SCHOOL $0.00 DISTRICT HAMPDEN TOWNSHIP $0.00 TOTAL PAID $39.00 * Total Pages - 11 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA RECORDER OF 6DS nso * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. iiuau0o0yniAidA May 1, 2008 Mr. Mike Leininger Erie Insurance Co. PO Box 2013 ?J Mechanicsburg, PA 17055 'Cj A Re: Claim # 010170970320 Dear Mr. Leininger, The following report contains an appraisal for the value of compensatory damage of 25 trees destroyed by construction equipment on the property of Mr. & Mrs. Frank Lentz, 1890 Lambs Gap Road, Mechanicsburg, PA 17050. Definition of assignment. You have requested an appraisal for the value of compensatory damages of the destroyed trees and the cost of debris removal at the location indicated above. Purpose of this report. The purpose of this report is to provide a written estimate of the value of compensatory damages of the trees that were destroyed as a result of trespass by construction equipment on the property. Assumptions and limitations. The date the damage occurred was approximately the middle of February 2008. Date of consultation. I was originally contacted by Mr. Mike Leininger on April 21, 2008. A site visit was conducted on Monday, April 28, 2008 from approximately 9:26 AM until 11:17 AM. Limit of scope. This report provides a valuation of the compensatory damages of the trees which were destroyed by the trespass of construction equipment onto the Lentz property. It also provides an estimate of costs for the removal of the downed trees and debris. It does not include any additional costs associated with restoring the property to its pre-casualty condition. Fam 25 Sheeley Lane, Boiling Springs, PA 17007 • Tel: 717 241 -2814 • Cel: 71 7-576-4398 • ,v,v%v_?boutW-,,t,s.net (SOU Tree identification and location. The Lentz property is located along Lambs Gap Rd. just north of Mechanicsburg, PA. The disturbed site consists of an area approximately 20' wide by 450' long, (9000 f) or 1l5 acre, at the lower end of the Lentz property adjacent to Lambs Gap Rd. and along a small stream that runs through the property. Trees that were destroyed consist of the following species: Black Walnut, Juglans nigra, Common Honeylocust, Gleditsia triacanthos, White Ash, Fraxinus americana, and Hawthorn, Crataegus spp.. General tree condition and observations. The area in question consists of bottom land adjacent to a small stream. The area is wooded with a stand consisting primarily of native and naturally occurring tree species including those listed above. Additional plant material exists in the form of understory vegetation and ground cover material that was not identified for purposes of this report. Damage. At least 25 trees were destroyed as a result of trespass by construction equipment on the property. It is likely that several additional trees were destroyed, but only 25 individual stumps could be identified. Trees ranged in size from 4" dbh (diameter breast height) to 21" dbh with an average size of 13.4" dbh. Additional damage occurred in the form of destruction of understory plants and ground cover material. This additional damage is not covered by this report. Appraisal. Method. It was determined by the consulting arborist that the "Cost of Cure" method (as described in the Guide for Plant Appraisal, 9m Edition) would be the most appropriate method to use to provide a valuation for these trees. The "Cost of Cure" method is commonly used to determine valuations for trees when complete destruction of a site is responsible for the loss of multiple plants. Additional justification for the "Cost of Cure" method is provided by the functions of the stand of trees. The primary function was to shade a small stream and absorb surface water (runoff) from the neighboring hillside prior to it entering the stream. Additionally, the stand of trees provided significant wildlife habitat. The Cost of Cure in this case consists of 1. the cost of debris removal, plus 2. the cost of replacement plants (number adjusted to compensate for total trunk diameter lost), plus 3. the cost of tree installation. Trees for installation were specified to be 2" to 3" caliper (diameter) as available. The average diameter of the trees removed was 13.4" DBH (diameter breast height). A total of 336" DBH of tree caliper was removed and should be replaced. An equivalent amount of diameter inches of replacement trees would equate to approximately 134 trees in the 2" to 3" range. This figure exceeds the capacity of the area in question, based on new tree spacing. A maximum number of replacement trees based on 100 i per new tree, yields a total of 90 trees required to reclaim the 9000 ft canopy area. Debris removal as quoted from RRD Land Clearing will be approximately $1200. Appraised Value. 1. Debris removal ................................................................. 2. New trees, purchased and installed .................................. Total .................................................................................... Compensatory value per tree removed ............................... .......$1200.00 .....$47250.00 .....$48450.00 ...........$1938.00 each. Supporting information. Appraiser's credentials. The consulting arborist and appraiser for this report was Mr. Eric Vorodi. Mr. Vorodi is an ISA (International Society of Arboriculture) Certified Arborist, (Certified Arborist PD-347) and a member of ASCA (the American Society of Consulting Arborists). He holds degrees in Biology and Horticulture from The Pennsylvania State University. He has worked in the fields of horticulture and arboriculture since 1989 and has worked as a consulting arborist since 2002. Should you have any questions, feel free to contact me by phone or email at any time. Respectfully, Eric Vorodi Certified Arborist, PD-347 Printvtation Sf+4 R` ? . M: i r +7 ? ' S i 970320 002.jpg AA Printed on 6/20/2008 1 / rintStation s i a c ti fi Y „af w 970320 004.jpg AA Printed on 6/20/2008 2/5 1 rinttation AA Printed on 6/20/2008 3/ Olft rintStation a yy Xj ?tl fr 2 + .dal ???\ r..?+ 4; 7743 ^- '?W+ ate- :#i .. . ' '?1?* .: w _ ?i? 008. jpg AA Printed on 6/20/2008 4/5 PrintStation 1i yi ; K L 4 t ??` 631 r}??' t ?.. ?''.;gy,l e't ti- AA Printed on 6/20/2008 5 / F OF THE, Z ? t,F R 27 n Sheriffs Office of Cumberland County R Thomas Kline ,tits at cuahr"' Edward L Schorpp Sheri r'?d Solicitor Ronny R Anderson Jody S Smith Chief Deputy OFTCE = r s"-RIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 04/27/2009 08:03 PM - Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on April 27, 2009 at 2003 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Donald Erwin, by making known unto Donald Erwin, husband of defendant, at 1943 Monterey Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17050 its contents and at the same time handing to him personally the said true and correct copy of the same. 04/27/2009 08:03 PM - Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on April 27, 2009 at 2003 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Patricia A. Porvenzano, by making known unto Donald Erwin, husband of defendant, at 1943 Monterey Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17050 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $55.22 April 28, 2009 SO ANSWEES, g , SHERIFF iff Docket No. 2009-06880 Frank Lentz v Donald Erwin W -? t _ c:r' 7 , Johnson, Duffie, Stewart & Weidner By: Jeffrey B. Rettig I.D. No. 332312 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com FRANK E. LENTZ, III and CHERYL F LENTZ, Plaintiffs V. NO. 2008-06880 CIVIL ACTION - LAW DONALD H. ERWIN and PATRICIA A. JURY TRIAL DEMANDED PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary of Cumberland County: Kindly enter my appearance on behalf of Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development LLC in the above-captioned action. Respectfully submitted, Johnson, Duff e, tewart & oid er By. J r Vnl R,e ig, Esquire r a o. 19616 301 et Street Lemoyne, Pennsylvania 17043 717-761-4540 ibrCa?idsw.com Attorney for Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development LLC Attorneys for Defendants Donald H. Erwin and Patricia A. Provenzano and Insite Development, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. 365286 CERTIFICATE OF SERVICE AND NOW, this _ 1 day of May, 2009, the undersigned does hereby certify that he did this date serve a copy of the foregoing Praecipe for Entry of Appearance upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 JOHNSON, DUFFIE, STEWART & WEIDNER Bye Je y B. Re ?ig 2009 MAY -0' F ii 2: !; 8 Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs CIVIL ACTION - LAW V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants : NO. 2008-06880 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, May 26, 2009, I, Robert G. Radebach, Esquire, Attorney for Plaintiffs, hereby certify that I served a copy of the Notice Pursuant to Pa.R.C.P. No. 237.1(a)(1) in the above-captioned matter upon Donald H. Erwin, Patricia A. Provenzano, Insite Development, LLC and Neiswonger Construction, Inc., Defendants, Jeffrey Rettig, Esquire on behalf of Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, and John Marshall, Esquire on behalf of Neiswonger Construction, Inc. on May 22, 2009, by depositing the same in the United States Mail, postage prepaid and via Certificates of Mailing (see Certificates of Mailing attached hereto and hereby made a part hereof), in the post office at Harrisburg, Pennsylvania, addressed as follows: Insite Development, LLC 1943 Monterey Drive Mechanicsburg, PA 17050 Neiswonger Construction, Inc. 17592 Route 322 Strattanville, PA 16258 Donald H. Erwin 1943 Monterey Drive Mechanicsburg, PA 17050 Patricia A. Provenzano 1943 Monterey Drive Mechanicsburg, PA 17050 John Marshall, Esquire Marshall Law Offices 9888 Route 322 P.O. Box 29 Shippenville, PA 16254 Jeffrey B. Rettig, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemovne P A 17043-0 Robdrt G. 912 North River Road Halifax, PA 17032 (717) 896-2666 I . D.# 19255 Attorney for Plaintiffs Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs : CIVIL ACTION - LAW V. DONALD H. ERWIN and : NO. 2008-06880 PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and : JURY TRIAL DEMANDED NEISWONGER CONSTRUCTION, INC., Defendants To: Donald H. Erwin, Patricia A. Provenzano, Insite Development, LLC and Neiswonger Construction, Inc., Defendants, Jeffrey Rettig, Esquire on behalf of Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, and John Marshall, Esquire on behalf of Neiswonger Construction, Inc., Date of Notice: May 22, 2009 IMPORTANT NOTICE Pursuant to Pa.R.C.P. No. 237.1(a)(1) YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-3166 N r 0 3 m "r v 0 0 v Z Np Op O u T ? M Sr t t9 D =raG)?m D C 6^) ? r 0 Ya r V tJ 0 N Q ? a o CD 'O 0 N 3 m 1 A M IQ O v N T M j -d v 0 0 N 2 w 0 N iD T tT 7a V3 0 Q Cfl CD S? z 0 -0 CD G 0) -d (D 0 -1 :Ir c) ?o - N 0 M CD b 0 N 3 d Z ro io o N T O 3 $I 4 4 CD I = tQ 0 CD Sr N Q. to C CD v 0 3 w Z A m Vr ssvlyis'?ia vsn N -n w ?a M =N? .M m? x 3 a ? % m ?%A ^ l 7 N A p 9 . G ° CD 4 -e w n s' ? O w .w .ooa "? ssJu??isaia "? ssvv 1?`i vsn 04 N T 8 -a S i W O N °o rn v M. V• o f -4 Q Rai ;Vzo N Z G) a s o ?0 C e- 03 CD C) n wom ? N O- Q C ° CD 0 m m S A A -o N T O co -i N ? K S N ? ??. m1 ?,?a awn -A?co7R v<? =M N Q 9 ?? ? s CD ` ro 0 a 3 d Z A m TF ssd13 iii vsn =E i n n t r Johnson, Duffle, Stewart & Weidner By: Jeffrey B. Rettig I.D. No. 332312 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com Attorneys for Defendants Donald H. Erwin and Patricia A. Provenzano and Insite Development, LLC FRANK E. LENTZ, III and CHERYL F. IN THE COURT OF COMMON PLEAS OF LENTZ, CUMBERLAND COUNTY, PENNA. Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants NO. 2008-06880 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD To: Plaintiffs c/o Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032 Co-Defendant Neiswonger Construction, Inc c/o John Marshall, Esquire 9888 Route 322, P. O. Box 29 Shippenville, PA 16254 You are hereby notified to file a written response to the enclosed Defendant's Answer with New Matter to Plaintiffs' Complaint with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Johns , D e, S idner By: e r y . Rettig, Ese A orne I. D. No, 19616 301 Market Street, P. O. Box 109 Lemoyne, PA 17043-0109 717-761-4540 Attorney for Defendant Johnson, Duffle, Stewart & Weidner By: Jeffrey B. Rettig I.D. No. 332312 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com Attorneys for Defendants Donald H. Erwin and Patricia A. Provenzano and Insite Development, LLC FRANK E. LENTZ, III and CHERYL F. IN THE COURT OF COMMON PLEAS OF LENTZ, CUMBERLAND COUNTY, PENNA. Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC.. Defendants NO. 2008-06880 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND To Defendant Neiswonger Construction, Inc.: 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 defense 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 Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 Johnson, Duffle, Stewart & Weidner By: Jeffrey B. Rettig I.D. No. 332312 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jbr@jdsw.com Attorneys for Defendants Donald H. Erwin and Patricia A. Provenzano and Insite Development, LLC FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. NO. 2008-06880 CIVIL ACTION - LAW JURY TRIAL DEMANDED AND NOW come the Defendants, Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, by their attorneys, Johnson, Duffie, Stewart & Weidner, and answer Plaintiffs' Complaint as follows: 1. It is admitted that the Plaintiffs are who they say they are. As to the balance of the allegations of this paragraph, after a reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment and proof thereof is demanded. 2. Admitted. 3. Admitted with clarification. This Defendant's current address is 2055 Technology Parkway, Mechanicsburg, Pennsylvania. 4. Denied. After a reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment and proof thereof is demanded. 5. Denied. After a reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment and proof thereof is demanded. 6. It is admitted that Defendants Erwin and Provenzano own land located in Hampden Township, Cumberland County, Pennsylvania which they acquired in 2003. As to the balance of the allegations of this paragraph, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment and proof thereof is demanded. 7. Denied as stated. It is admitted that Insite Development, LLC has developed a residential subdivision called "Hawk Landing" which includes lands owned by it as well as Defendants Erwin and Provenzano. As to the asserted incorporation by reference thereto of a Plan Book page, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of that claim and proof thereof is demanded. No copy of the subdivision plan was attached to the Complaint. 8. Denied. It is denied that Defendant Neiswonger Construction, Inc. was an "agent" of Erwin, Provenzano or Insite Development, LLC. To the contrary, it was an independent contractor of Insite Development, LLC. It is admitted, based on information and belief, that Neiswonger Construction, Inc. entered upon lands for the purpose of removing trees, shrubs and vegetation. As to the ownership, if any, of those lands and to the legal right to do so, those allegations are denied as conclusions of law. 9. Denied as stated. It is admitted that Answering Defendants never contacted Plaintiffs regarding clearing land. It is denied, as a conclusion of law, that the land which was cleared was land owned by Plaintiffs. It is denied, based on information and belief, that the entry by Neiswonger constituted a trespass. 10. Denied as stated. It is denied that Answering Defendants "perpetrated" any activities on land of the Plaintiffs. As to the alleged damages, after a reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment and proof thereof is demanded. 11. Denied. Answering Defendants are without knowledge or information as to whether Plaintiffs were required to have their lands surveyed. It is denied that Answering Defendants trespassed upon Plaintiffs' lands. It is further denied that a copy of the survey is attached as Exhibit A. It is admitted that a Deed from the Plaintiffs to the Plaintiffs is attached as Exhibit A which Deed evidently includes lands which were not previously deeded to Plaintiffs. 12. Denied as stated. There is no survey attached and thus Answering Defendants cannot respond to that allegation. It is admitted that a Deed of Easement is attached to Plaintiffs' Complaint as Exhibit B. 13-14. Denied. After a reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment and proof thereof is demanded. 15. Denied as stated. It is admitted that a report is attached to Plaintiffs' Complaint marked as Exhibit C. As to the balance of the allegations of this paragraph, after a reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of said averment and proof thereof is demanded. 16. Denied. It is denied that Answering Defendants trespassed upon Plaintiffs' lands or, if Plaintiffs' lands were trespassed upon, that it was deliberate and intentional. As to the balance of the allegations of this paragraph, they are denied as conclusions of law. WHEREFORE, Answering Defendants demand that Plaintiffs' Complaint be dismissed without cost to them. NEW MATTER ADDRESSED TO PLAIN77FF 17. On or about November 21, 2008, Plaintiff had a Writ of Summons issued naming two Defendants, Insite Development, LLC and Neiswonger Construction Company, Inc. 18. Approximately 5 months later, on or about April 27, 2009, Plaintiffs filed a Complaint naming the parties identified in the Writ of Summons as Defendants as well as adding two new Defendants, Donald Erwin and Patricia Provenzano. 19. Plaintiff never received consent from the parties or permission from the Court to amend the caption and add additional parties as Defendants. 20. Plaintiffs' Deed did not include the area which was cleared at the time that area was cleared. 21. It is was only after the clearing of the area by Neiswonger Construction that Plaintiffs created a Deed in which they conveyed to themselves property which had been cleared by Neiswonger. 22. At no time did Answering Defendants set foot on property owned by Plaintiffs. 23. At no time did Answering Defendants clear any trees or foliage from property owned by Plaintiffs. 24. On information and belief, it is averred that the land which was cleared by Neiswonger Construction was not owned by Plaintiffs at the time the clearing took place. WHEREFORE, Answering Defendants request that Plaintiffs' Complaint be dismissed without cost to them. CROSS CLAIM PURSUANT TO RULE 1031.1 Insite Development, LLC and Donald H. Erwin v Neiswonger Construction, Inc. 25. On or about September 13, 2007, Insite Development, LLC and Donald H. Erwin entered into an Agreement with Neiswonger Construction, Inc. under which Neiswonger Construction, Inc. agreed to perform certain work at the Hawk's Landing site. A copy of this contract is attached hereto marked Exhibit A. 26. Among the activities that Neiswonger Construction, Inc. was to perform was the clearing of trees and shrubbery in a sewer right-of-way located on an easement obtained by the Hampden Township Sewer Authority. 27. On or about February 18, 2008, employees of Neiswonger Construction, Inc. initiated the clearing of land which was supposed to be within the easement but which, based on information and belief, may not have been within the easement. 28. Employees of Neiswonger Construction, Inc. proceeded to clear the land without waiting for the surveyors to accurately mark the boundaries of the easement. COUNTI 29. The allegations of paragraphs 25-28 above are incorporated herein by reference thereto. 30. Defendant Neiswonger Construction, Inc. breached its contract with Insite Development, LLC and Donald H. Erwin by failing to perform its work in a good and workmanlike manner in accordance with the understanding of the parties. 31. As a result of the breach of the contract by Neiswonger Construction, Inc., Insite Develoment, LLC and Donald H. Erwin have incurred costs in excess of $55,000, including damages for the delay of the project and legal and engineering expenses. 32. In addition to the above-referenced expenses, Cross-Claim Plaintiffs had to obtain a new easement and a new Highway Occupancy Permit, all of which were additional costs and expenses to Insite Development, LLC and Donald H. Erwin. WHEREFORE, Counter Claim Plaintiffs, Insite Development, LLC and Donald H. Erwin, request judgment against Defendant Neiswonger Construction, Inc. in an amount in excess of $50,000. COUNT II - NEGLIGENCE 33. The allegations of paragraphs 1 through 32 above are incorporated herein by reference thereto. 34. Neiswonger Construction, Inc. proceeded to clear trees, shrubbery and other flora before the surveying company had completely marked the easement. 35. Rather than wait for the marking of the easement, Neiswonger Construction, Inc. determined where it felt the easement ran and cleared some trees and shrubs in that area. 36. It has been alleged by Plaintiffs that Neiswonger Construction, Inc. cleared trees and shrubs on their property which was property assertedly outside the easement. 37. Neiswonger Construction, Inc. was negligent in the following respects: a) proceeding to clear trees and shrubs before knowing the precise parameters of the easement; b) failing to assure that they knew the precise parameters of the easement before commencing the clearing operation; C) failing to await the full marking of the easement by the land surveyor; and d) proceeding to clear the area before confirming the location of the easement. 38. As a result of the negligence of Neiswonger Construction, Inc., Cross-Claim Plaintiffs have incurred damages including the following: a) delay in the project; b) invoices for additional expenses incurred as a result of the allegedly improper clearing; C) legal and engineering expenses; d) expenses associated with securing a new easement; e) additional expenses associated with securing a new Highway Occupancy Permit; and f) additional interest on the project as a result of the delay. WHEREFORE, Cross-Claim Plaintiffs request judgment against Defendant Neiswonger Construction, Inc. in an amount in excess of $50,000 plus interest. COUNT 111 39. The allegations of paragraphs 1 through 38 above are incorporated herein by reference thereto. 40. At no point in time did Defendant Donald H. Erwin direct Neiswonger Construction, Inc. to commence clearing of property in the vicinity of the sewer easement. 41. At no point in time did Patricia Provenzano direct Neiswonger Construction, Inc. to commence clearing of property in the vicinity of the sewer easement. 42. At no point in time did Insite Development, LLC direct Neiswonger Construction, Inc. to commence clearing of property in the vicinity of the sewer easement. 43. In the event that any of the Answering Defendants are held liable to Plaintiffs, which liability is specifically denied, then it is averred that Defendant Neiswonger Construction, Inc. is solely liable to the Plaintiff, liable over to Answering Defendants on Plaintiffs' claims or, if in the alternative, liable to Answering Defendants for contribution and/or indemnification. WHEREFORE, in the event Answering Defendants are held liable to Plaintiff, which liability is expressly denied, then it is respectfully requested that Defendant Neiswonger Construction, Inc. be held solely liable to Plaintiff, liable over to Answering Defendants on Plaintiffs' claims or liable to Answering Defendants for contribution and/or indemnification. Respectfully submitted, JOHNSO , DUFF =,ST8jWEIDNER By: Je e . R g I. D. No. 19616 301 Market Street P. O. Box 109 Lemoyne, PA 17043 (717) 761-4540 ibr idsw.com Counsel for Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC 367279 VERIFICATION The undersigned, the attorney of record for the pleading party herein, states that the facts set forth in the foregoing Answer with New matter and Cross Claims of Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC to Plaintift' Complaint are true and correct to the best of his knowledge, information, and belief, upon information supplied to him. This verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unswom falsifications to authorities. Date: 9 Neiswonger Construction, Inc 17592 Rte 322 Strattanville, Pa 16258 (814) 764-3455 (814) 764-5772 Neicon@alltel.net ............................................................... September 13, 2007 Insite Development Mechanicsburg Pa. Hawks Landing RE: Site Work Quote Move in & out. $4,000.00 Office & insurance $25,500.00 E&S controls, Silt Fence, Construction Entrance, 3 Ponds, Outlet structures. Mulch blanket temporary Seeding, $69,600.00 Clear & Grub, Remove & stock topsoil. Temp. Seeding $13,070.00 Storm water complete. Phase 1 $177,700.00 Sanitary Sewer complete. No tap fees. Phase 1 $201,735.00 Dirt from Comfort Inn placed & compacted. $174,200.00 Dig / backfill/ bed utility trench, conduit furnished $89,200.00 Dig/ backfill/ curbing trench. $18,000.00 Dig/bed/backfill gas line, line by others. $26,000.00 No replacement wetland included, no plan. No bonds included. Water not included, no plan. Total Cost as stated. $79%0 06S 0 Lots included all utlities within 5' of street curbline. Lots 46, 45, 44, 43, 42, 47, 48, 40, 41, 30, 29, 28, 53, 27, 26, 14, Bid and material quotes good through 10/11/07 David Neiswonger Insite Development LLC, Don Erwin 1" CERTIFICATE OF SERVICE AND NOW, this day of June, 2009; the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 Counsel for Plaintiff John Marshall, Esquire 9888 Route 322 P. O. Box 29 Shippenville, PA 16254 Counsel for Co-Defendant Neiswonger Construction, Inc. JOHPSAN, DUFFIE, STEWART & WEIDNER By:`. - - !c IT Th- < ±A Y OUP t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK LENTZ, III and No. 2008-06880 CHERYL F. LENTZ Plaintiffs, Type of Case: CIVIL ACTION - LAW VS. Type DONALD H ERWIN and ANSWER, Pleading: NEW MATTER, AND PATRICIA A. PROVENZANO, and CROSS-CLAIM INSTTE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Filed on Behalf of: DEFENDANT, Neiswonger Construction, Inc. Defendants. JOHN F. MARSHALL, ESQUIRE Attorney at Law Supreme Court No. 58833 P.O. Box 29 Shippenville, PA 16254 (814) 226-7410 THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK LENTZ, III and CHERYL F. LENTZ No. 2008-06880 Plaintiffs, vs. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and : NEISWONGER CONSTRUCTION, INC., Defendants, NOTICE TO PLEAD TO: FRANK E. LENTZ, III and CHERYL F. LENTZ C/o Robert G. Radebach Insite Development 1943 Monterey Drive Mechanicsburg, PA 17050 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK LENTZ, III and CHERYL F. LENTZ No. 2008-06880 Plaintiffs, VS. DONALD R ERWIN and PATRICIA A. PROVENZANO, and INSTTE DEVELOPMENT, LLC and : NEISWONGER CONSTRUCTION, INC., Defendants, : NOTICE TO PLEAD TO: DONALD H. ERWIN, PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC c/o Jeffery B. Retting, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 You are hereby notified to file a written response to the enclosed Cross-Claim within twenty (20) days from service hereof or a judgment may be entered against you. JOHN FALL, ESQUIRE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK LENTZ, III and CHERYL F. LENTZ No. 2008-06880 Plaintiffs, CIVIL ACTION - LAW vs. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSTTE DEVELOPMENT, LLC and : NEISWONGER CONSTRUCTION, INC., Defendants ANSWER. NEW MATTER. AND CROSS-CLAIM AND NOW, comes the Defendant, Neiswonger Construction, Inc., (hereinafter "Defendant Neiswonger") by and through its attorney, JOHN F. MARSHALL, ESQUIRE, and files the within Answer, New Matter, and Cross-Claim based upon the following: ANSWER 1. Paragraph 1 of Plaintiff's Complaint is admitted. 2. Paragraph 2 of Plaintiff's Complaint is admitted 3. Paragraph 3 of Plaintiff's Complaint is admitted 4. Paragraph 4 of Plaintiffs' Complaint is admitted 5. Paragraph 5 of Plaintiffs' Complaint is admitted in part. It is admitted the Plaintifrs are owners of land located in Hampton Township, Cumberland County, Pennsylvania adjacent to the proposed sewer right of way. Defendant Neiswonger is without sufficient knowledge or information to form a belief that Plaintiffs owned the land where the cutting of trees and grubbing occurred. By way of further answer, Plaintiffs claim ownership of an unopened street in a subdivision and it is not clear that Plaintiffs are the actual owners of the area in question or the extent of Plaintiffs' ownership. 6. Paragraph 6 of Plaintiffs' Complaint is admitted. 7. Paragraph 7 of Plaintiffs' Complaint is admitted in part and denied in part. It is admitted that the Defendants Erwin and Provenzano developed a residential subdivision on the lands they owned It is denied that Defendant Insite Development, LLC (hereinafter "Defendant Insite") developed a residential subdivision. On the contrary, Defendant Insite developed a hotel on the property it owns. 8. Defendant Neiswonger incorporates his answer in Paragraph 5 herein in response to Paragraph 8 of Plaintiffs' Complaint. 9. Paragraph 9 of Plaintiffs' Complaint is admitted in part and denied in part. It is admitted that Defendant Neiswonger did not contact Plaintiffs regarding clearing, grubbing, or excavating. Since Defendant Neiswonger was not a party to all conversations between Defendants Erwin, Provenzano, and Insite and Plaintiffs, Defendant Neiswonger is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 9 of Plaintiff's Complaint. By way of further answer, Defendant Neiswonger incorporates his answer in Paragraph 5 above. 10. Defendant Neiswonger is without sufficient information to form a belief as to the truth to the averments in Paragraph 10 of Plaintiff s Complaint. 11. Paragraph I 1 of Plaintiffs Complaint is admitted in part and denied in part. It is admitted that Plaintiffs had their land surveyed. Defendant Neiswonger is without sufficient knowledge or information to form a belief as to the truth as to whether a trespass occurred. By way of further answer, Defendant Neiswonger incorporates his answer in Paragraph 5 above. 12. Paragraph 12 of Plaintiff's Complaint is denied. On the contrary, Hampton Township Sewer Authority obtained the easement. By way of further answer, it is admitted that Defendants Erwin, Provenzano, and Insite were to use this right of way for their construction projects. 13. Defendant Neiswonger is without sufficient knowledge or information to form a belief as to the truth to the averments of Paragraph 13 of Plaintiff's Complaint. 14. Defendant Neiswonger is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 14 of Plaintiffs Complaint. 15. Defendant Neiswonger is without sufficient knowledge or information to form a belief as to the truth of the averments in Paragraph 15 of Plaintiff's Complaint. By the way of further answer, it is admitted that the report attached to the Complaint alleges what the damages are. Defendant Neiswonger disputes the accuracy of said report. 16. Paragraph 16 of Plaintiff's Complaint is a conclusion of law to which no responsive of pleading is required. In so far is a response of pleading is required, Paragraph 16 of Plaintiff's Complaint is denied Defendant Neiswonger is without sufficient information to form a belief as to whether or not a trespass occurred and incorporate his answer in Paragraph 5 above. If the trespass occurred, it is denied that it was deliberate and intentional. On the contrary, Defendant Neiswonger was directed to and shown the appropriate location to clear away and grub by Defendants Insite, Erwin, and Provenzano, or their agents and employees. By way of further Answer, Defendant Neiswonger denies being liable to the Plaintiffs. WHEREFORE, Defendant Neiswonger denies being indebted to the Plaintiffs in any sum whatsoever and requests judgment in its favor and costs of suit. NEW MATTER 1. Defendant Neiswonger believes and avers that Plaintiffs have resolved a portion of their claim with the surveyor, or his insurance company, employed by Defendants Insite, Erwin, and/or Provenzano which either bars any suit against Defendant Neiswonger, requires a reduction in any liability found against Defendant Neiswonger and/or reduces any damages alleged by the Plaintiffs. CROSS-CLAIM Defendant Neiswonger pursuant to a written contract, which is in the sole possession of Defendants Insite, Erwin and Provenzano, was to be provided with accurate surveys and drawings to complete the work on the sewer construction. 2. Defendants, Insite, Erwin and Provenzano solely and exclusively hired the surveyor who performed the work on the sewer line in question. 3. Defendants Insite, Erwin and Provenzano are solely liable to Plaintiffs or are liable to or with Defendant Neiswonger on Plaintiffs' claim. WHEREFORE, Defendant Neiswonger, requests judgment against the Defendants, Insite, Erwin and Provenzano as they are solely liable and/or liable to or with Defendant Neiswonger to the Plaintiffs. VERIFICATION I, WILLIAM KLINGENSMITH, PRESIDENT of NEISWONGER CONSTRUCTION, Inc., verify that the statements made in the Answer, New Matter, and Cross-Claim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. A. Section 4904, relating to unsworn falsification to authorities. DATED: ?;W'Zze' kJL cz??D NEISWONGER CONS CTION, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK. LENTZ, III and CHERYL F. LENTZ Plaintiffs, vs. No. 2008-06880 CIVIL ACTION - LAW DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSTTE DEVELOPMENT, LLC and : NEISWONGER CONSTRUCTION, INC., Defendants PROOF OF SERVICE I, the undersigned, hereby certify that a certified true and correct copy of the foregoing Answer, New Matter, and Cross-Claim was sent this oC u?_ day of -11A pt f , 2009, by regular United States mail, postage prepaid, to the following: Robert G. Radebach 912 North River Road Halifax, PA 17032 Jeffery B. Retting, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 J F. )AARSHALL, ESQUIRE 293 JUN -3 G' ; a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK LENTZ, III and No. 2008-06880 CHERYL F. LENTZ Plaintiffs, Type of Case: CIVIL ACTION- LAW vs. : Type of Pleading: DONALD H. ERWIN and PRAECIPE FOR ENTRY OF PATRICIA A. PROVENZANO, and APPEARANCE INSTTE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Filed on Behalf of DEFENDANT NEISWONGER CONSTRUCTION, INC. Defendants. Counsel of Record for This Party: JOHN F. MARSHALL, ESQUIRE Attorney at Law Supreme Court No. 38833 P.O. Box 29 Shippenville, PA 16254 (814) 226-7410 i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK LENTZ, III and No. 2008-06880 CHERYL F. LENTZ Plaintiffs, vs. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of NEISWONGER CONSTRUCTION, INC., Defendant, in the above matter. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK LENTZ, III and No. 2008-06880 CHERYL F. LENTZ Plaintiffs, vs. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSTTE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants PROOF OF SERVICE I, the undersigned, hereby certify that a certified true and correct copy of the foregoing Praecipe for Envy of Appearance was sent this -? AjD day of jr-u 0 , 2009, by regular United States mail, postage prepaid, to the following: Robert G. Radebach, Esq. Jeffrey B. Rettig, Esq. 912 North River Road 301 Market Street Halifax, PA 17032 P.O. Box 109 Lemoyne, PA 17043-0109 _ ^ FILED M9 JIM -?3 4 t!?i1 I'? I ?? Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., : CIVIL ACTION - LAW NO. 2008-06880 JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE AND NOW, June J , 2009, I, Robert G. Radebach, Esquire, Attorney for Plaintiffs, hereby certify that I served a copy of Plaintiffs' Reply to Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC's New Matter in the above- captioned matter upon Jeffrey B. Retting, Esquire, Attorney for Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, and John Marshall, Esquire, Attorney for Defendant Neiswonger Construction, Inc., on June 29, 2009, by depositing the same in the United States Mail, postage prepaid in the post office at Harrisburg, Pennsylvania, addressed as follows: Jeffrey B. Rettig, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 John F. Marshall, Esquire 9888 RoytE) 322 in 1 rianne P. 0. B x /;A Ship a iIIe/(6? 54 Robert G. Radebach, 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., CIVIL ACTION - LAW NO. 2008-06880 : JURY TRIAL DEMANDED Defendants : PLAINTIFFS' REPLY TO DEFENDANT NEISWONGER CONSTRUCTION. INC.'S NEW MATTER 1. Denied. There has been no settlement or resolution of the claims in this matter with any of the named Defendants. Strict proof of the averment is hereby demanded. WHEREFORE, Plaintiffs respectfully request that Defendant Neiswonger Construction Inc.'s New Matter be dismissed, and relief ght by Plaintiffs in the original Complaint be granted. Rbbert G. Radebach, 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs VERIFICATION We verify that the statements made in this Plaintiffs' Reply to Defendant Neiswonger Construction Inc.'s New Matter, are true and correct. 'We understand that false statements herein are made subject to the penalties of 18 Fla. C.S.A. §4904 relating to unsworn falsification to authorities. Dated: ???k O` Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants CIVIL ACTION - LAW NO. 2008-06880 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE U AND NOW, June 2J, 2009, I, Robert G. Radebach, Esquire, Attorney for Plaintiffs, hereby certify that I served a copy of Plaintiffs' Reply to Defendant Neiswonger Construction Inc.'s New Matter in the above-captioned matter upon Jeffrey B. Retting, Esquire, Attorney for Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, and John Marshall, Esquire, Attorney for Defendant Neiswonger Construction, Inc., on June 29, 2009, by depositing the same in the United States Mail, postage prepaid in the post office at Harrisburg, Pennsylvania, addressed as follows: Jeffrey B. Rettig, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 John F. Marshall, Esquire 9888"e 322 in Anne P.O. 80 29/7 /Ia? Robert G ° Radebach, 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs Al F-D-- ,+=i=f OF THE F Y-; l7 '-!,N( 7ARY 2003 MI 30 AM 9: 30 Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants CIVIL ACTION - LAW NO. 2008-06880 : JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANT NEISWONGER CONSTRUCTION, INC.'S NEW MATTER 1. Denied. There has been no settlement or resolution of the claims in this matter with any of the named Defendants. Strict proof of the averment is hereby demanded. WHEREFORE, Plaintiffs respectfully request that Defendant Neiswonger Construction Inc.'s New Matter be dismissed, and relietA3ayght by Plaintiffs in the original Complaint be granted. Rbbert G. Radebach, 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs VERIFICATION We verify that the statements made in this Plaintiffs' Reply to Defendant Neiswonger Construction Inc.'s New Matter are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Dated: fou,aq 4 Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants CIVIL ACTION - LAW NO. 2008-06880 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE U AND NOW, June 2T 2009, I, Robert G. Radebach, Esquire, Attorney for Plaintiffs, hereby certify that I served a copy of Plaintiffs' Reply to Defendant Neiswonger Construction Inc.'s New Matter in the above-captioned matter upon Jeffrey B. Retting, Esquire, Attorney for Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, and John Marshall, Esquire, Attorney for Defendant Neiswonger Construction, Inc., on June 29, 2009, by depositing the same in the United States Mail, postage prepaid in the post office at Harrisburg, Pennsylvania, addressed as follows: Jeffrey B. Rettig, Esquire John F. Marshall, Esquire 301 Market Street 9888 a 322 in nne P.O. Box 109 P.O. 0 29 Lemoyne, PA 17043 Shi nvillA 6 4'1 Robert G ° Radebach, 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs FILE=D-OFFI OF THc P?- : t.;'NOTAR`l 20Qg JU)l 30 AM 9: 30 1t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs CIVIL ACTION -LAW V. No. 2008-06880 DONALD H. ERWIN and JURY TRIAL DEMANDED PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Kindly enter my appearance on behalf of Defendants, Donald H. Erwin and Insite Development, LLC, in the above-referenced matter. Respectfully submitted, WIX, WENUA 4 WEIDNER Date: 9 /,Z5-/`j By: Je Clark, Esquire Att ey .D. # 89277 P. Box 845 508 North Second Street Harrisburg, PA 17101-0845 (717) 234-4182 Attorneys for Defendants, Donald H. Erwin and Insite Development, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. : CIVIL ACTION - LAW No. 2008-06880 DONALD H. ERWIN and JURY TRIAL DEMANDED PATRICIA A. PROVENZANO, and : INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants CERTIFICATE OF SERVICE I hereby certify that I true and correct copy of the foregoing Praecipe to Enter Appearance was sent by regular United States mail, postage prepaid to the following: Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 Jeffrey B. Rettig, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 John F. Marshall, Esquire P.O. Box 29 Shippenville, PA 16254 Date: ` ?? 50 WIX, WENGER & WEIDNER q ?M LIM19 Ald,1111,0M Harva Owings Saughrbbn, Paralegal P.O. Box 845 508 North Second Street Harrisburg, PA 17101-0845 (717) 234-4182 T FILE U ' C Y MY 'HE ?r 0 .._ Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants CIVIL ACTION - LAW NO. 2008-06880 JURY TRIAL DEMANDED PLAINTIFFS' ANSWERS TO DEFENDANT INSITE DEVELOPMENT LLC DONALD H. ERWIN AND PATRICIA A. PROVENZANO'S REQUEST FOR PRODUCTION OF DOCUMENTS 1. All statements, signed statements, transcripts or recorded statements or interviews of any person or witness relating to, referring to or describing any of the events described in the Complaint. A: Plaintiffs have previously provided requested documents to the Defendants. 2. All expert opinions, reports, summaries or other writings in your custody or control or in the custody or control of your attorney or insurers, which relate to the subject matter of this litigation. A: Plaintiffs have previously provided requested documents to the Defendants. 'S z 3. All documents, correspondence or other drawings, sketches, diagrams, or writings in your custody or control or in the custody or control of your attorney or insurers, which relate to the subject matter of this litigation. A: Plaintiffs have previously provided requested documents to the Defendants. 4. All documents prepared by you, or by any insurer, representative, agent, or anyone acting on your behalf, except your attorney(s), during the investigation of the incident in question or any of the events or allegations described in the Complaint. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions, or the opinions respecting the value or merit of the claim or defense or respecting strategy or tactics. A: Plaintiffs have previously provided requested documents to the Defendants. 5. All photographs of any item or thing involved in this litigation. A: Plaintiffs have previously provided requested documents to the Defendants. 6. All statements as defined within Pa. R C P. No. 4003.4. A: Plaintiffs have previously provided requested documents to the Defendants. 7. All statements and/or transcripts of interviews of fact witnesses obtained in this matter. A: Plaintiffs have previously provided requested documents to the Defendants. 8. All documents identified in your Answers to any set of Interrogatories propounded by any party in this litigation. A: Plaintiffs have previously provided requested documents to the Defendants. 9. All documents which you intend to rely upon or introduce at trial of this litigation. A: Plaintiffs have previously provided requested documents to the Defendants. 10. Any and all correspondence, emails, memoranda, records, drawings, contracts, minutes, and other documents or records which pertain to the project described in Plaintiffs' Complaint, including but not limited to any drafts or any modifications made. A: Plaintiffs have previously provided requested documents to the Defendants. 11. Any and all memoranda, notes, summaries, items of correspondence, emails, records, documents, or other form of data retention, not included in the foregoing requests made by you or obtained by you or your representative or any witness, contained in your files or other collection of records which pertain to the events and damages alleged in Plaintiffs' Complaint A: Plaintiffs have previously provided requested documents to the Defendants. 12. All documents to support Plaintiffs' claim for damages. A: Plaintiffs have previously provided requested Date: ( Defendants. Radebach, Esquire Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs 912 North River Road ti I Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs : CIVIL ACTION - LAW V. DONALD H. ERWIN and : NO. 2008-06880 PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and : JURY TRIAL DEMANDED NEISWONGER CONSTRUCTION, INC., Defendants CERTIFICATE OF SERVICE AND NOW, October 6, 2009, I, Robert G. Radebach, Esquire, Attorney for Plaintiffs, hereby certify that I served a copy of Plaintiffs' Answers to Insite Development, LLC, Donald H. Erwin, and Patricia A. Provenzano's Request for Production of Documents in the above-captioned matter upon Jeffrey B. Retting, Esquire, Attorney for Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, John Marshall, Esquire, Attorney for Defendant Neiswonger Construction, Inc., and Jeffrey Clark, Esquire, Attorney for Defendants Donald H. Erwin and Insite Development, LLC, on October 2, 2009, by depositing the same in the United States Mail, postage prepaid in the post office at Harrisburg, Pennsyly dressed as follows: Jeffrey B. Rettig, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 John F. Marshall, Esqu 9888 Route 322 in M P.O. Box 29 Shippenville, PA 1 254 e Jeffrey Clark, Esquire P.O. Box 845 508 North Second Street Harrisburg, PA 17101 R6bbrt G. Radebach, 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs FILED- OFFICE OF THE FF`?r ,-?wCTAPYY 2099OCT _O PI-I 2: 4 O t ? , Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants : CIVIL ACTION - LAW : NO. 2008-06880 JURY TRIAL DEMANDED PLAINTIFFS' ANSWERS TO DEFENDANT INSITE DEVELOPMENT LLC DONALD H. ERWIN AND PATRICIA A. PROVENZANO'S INTERROGATORIES 1. State: a. Your full name; b. Each other name, if any, which you have used or by which you have been known; c. The name of your spouse at the time of the accident and the date and place of your marriage to such spouse; d. The address of your present residence and the address of each other residence which you have had during the past five years; e. Your present occupation and the name and address of your employer; f. Date of your birth; g. Your Social Security number, h. Your military service and positions held, if any; and i. The schools you have attended and the degrees or certificates awarded, if any. ANSWER: a. Frank E. Lentz, III and Cheryl F. Lentz b. N/A c. Both are parties to this action. d. 1890 Lambs Gap Road, Mechanicsburg, PA 17050. e. Retired. f. Frank E. Lentz, III (February 8, 1946) and Cheryl F. Lentz (September 26, 1946) g. Objection. Not relevant to the course of this litigation. h. N/A i. Objection. Not relevant to the course of this litigation. 2. If you are covered by any type of insurance, including any excess or umbrella insurance, that might be applicable to the incident in this matter, state the following with respect to each such policy: a. The name of the insurance carrier which issued the policy; b. The named insured under each policy and the policy number of each policy; c. The type(s) and effective date(s) of each policy; d. The amount of coverage provided for injury to each person, for each occurrence, and in the aggregate for each policy; and e. Each exclusion, if any, in the policy which is applicable to any claim thereunder and any reasons, if any, why you or the carrier claim the exclusion is applicable. ANSWER: Erie Insurance Company. See attached documentation. 3. List and describe all expenses and losses that you have incurred because of the incident. ANSWER: The damages consist of the cost of appraisal ($450.00), the survey expense ($3,585.50), and damages for intentional trespass ($45,650.00) which are treble damages to the land in the amount which total $145,950.00. 4. State with particularity the factual basis for each claim or defense you are asserting in this case. Do not simply refer to the Complaint. ANSWER: Plaintiffs are informed and believe and therefore aver that on February 19, 2008, the Defendants, Erwin, Provenzano and Insite Development, LLC, by and through their agent, Neiswonger Construction, Inc., entered upon the lands of Plaintiffs, within the area covered by the deed descriptions referenced below which are wetlands traversed by a tributary of Sears Run, without consent or legal right and commenced to remove trees, shrubs and vegetation in preparation for excavation and installation of a sanitary sewer line connecting the Hawk Landing development to the public sewer system of Hampden Township Sewer Authority. Plaintiffs further aver that the Defendants never contacted Plaintiffs regarding any such clearing, grubbing or excavating, and that Plaintiffs never granted any permission to Defendants to enter upon the lands of Plaintiffs, so that such entry constituted a trespass. By the time Plaintiffs learned of the activities perpetrated by the Defendants and their agents upon the lands of Plaintiffs, substantial damages had been made to the lands of the Plaintiffs, as well as to the wetlands thereon located. 5. Witnesses: a. Identify each person who i. Was a witness to the incident through sight or hearing; and/or ii. Has knowledge of facts concerning the happening of the incident or conditions or circumstances at the scene of the incident prior to, at the time of, or after the incident. b. With respect to each person so identified, state that person's exact location and activity at the time of the incident ANSWER: Plaintiffs do not have personal knowledge regarding the witnesses to the incident on the day the damages/trespass was performed. Plaintiffs expect to locate eye witnesses to the trespass who were agents and employees of the Defendants, Insite Development, LLC and Neiswonger and Neiswonger Construction, Inc. and will provide that information upon Defendants upon identification. 6. If you know of anyone that has given any statement (as defined by the Rules of Civil Procedure) concerning this action or as subject matter, state: a. The identity of such person; b. When, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded; and c. The identity of any person who has custody of any such statement that was reduced to writing or otherwise recorded. ANSWER: Eric Lorodi, Certified Arborist of About Trees, Boiling Springs, Pennsylvania Charles Cook, Surveyor of Act One Consultants, Inc., Harrisburg, Pennsylvania 7. Identify documents (except reports of experts subject to Pa R C.P No 4003 5) which describe the incident or the cause thereof. ANSWER: Not aware of any additional documents at this time. 8. If you know of the existence of any photographs, motion pictures, video recordings, maps, diagrams or models relevant to the incident, state: a. The nature or type of such item; b. The date when such item was made; c. The identity of the person that prepared or made each item; and d. The subject that each item represents or portrays. ANSWER: Requested items were already provided to the Defendants through the Complaint. 9. If you, or someone not an expert subject to Pa. R.C.P. No. 4003.5 conducted any investigations of the incident, identify: a. Each person, and the employer of each person, who conducted any investigation(s); and b. All notes, reports or other documents prepared during or as a result of the investigation (s) and the persons who have custody thereof. ANSWER: Frank E. Lentz, III and Cheryl F. Lentz. No reports were prepared. 10. Identify each person you intend to call as a non-expert witness at the trial of this case, and for each person identified state your relationship with the witness and the substance of the facts to which the witness is expected to testify. ANSWER: Frank E. Lentz, III and Cheryl F. Lentz. These are all the witnesses identified at this time. 11. Identify each expert you intend to call as a witness at the trial of this matter, and for each expert state: a. The subject matter about which the expert is expected to testify; and b. The substance of the facts and opinions to which the expert is expected the testify and a summary of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert.) ANSWER: Eric Lorodi, Certified Arborist of About Trees, Boiling Springs, Pennsylvania Charles Cook, Surveyor of Act One Consultants, Inc., Harrisburg, Pennsylvania See the attached report from Mr. Lorodi and the survey from Mr. Cook in Plaintiffs' Complaint. 12. Identify all exhibits that you intend to use at the trial of this matter and state whether they will be used during the liability or damages portions of the trial. ANSWER: The survey and photographs previously referenced will be used during the liability portion of the trial and the tree report will be used for damages. The deeds into the Plaintiffs' for the properties they own will be used. Said deeds are referenced as Cumberland County Record Book D-25, Page 522, Cumberland County Record Book D-25, Page 524, and Cumberland County Instrument No. 200830915. The subdivision plan will also be will be used and is referenced as Plan Book 7, Page 19. 13. If you intend to use any book, magazine, or other such writing at trial, state: a. The name of the writing; b. The author of the writing; c. The publisher of the writing; d. The date of publication of the writing; and e. The identity of the custodian of the writing. ANSWER: If any items are identified through the course of preparation for trial, such documents will be disclosed at that time. 14. If you intend to use any admission(s) of a party at trial, Identify such admission(s). ANSWER: Plaintiffs are not aware of any such admissions by Defendants at this time. In the event that Defendants make any admissions after the filing of this response, Plaintiffs intend to use them, and will notify the Defendants of their intent to use them at that time. 15. Identify all damages that you allege you suffered as result of the incident. ANSWER: The damages consist of the cost of appraisal ($450.00), the survey expense ($3,585.50), and damages for intentional trespass ($45,650.00) which are treble damages to the land in the amount which total $145,950.00. 16. State in detail the manner in which you assert that the incident occurred. ANSWER: Plaintiffs assert that the Defendants, without justification or permission, entered upon the lands of the Plaintiffs and commenced to clear existing vegetation in preparation for the installation of a sewer line. 17. Describe all pre-incident communication which you gave or received with Defendants regarding the incident which is the subject of this Complaint. ANSWER: Defendants at no time contacted the Plaintiffs regarding the intended trespass and never received any permission to access the lands of the Plaintiffs. Date: 0, Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs E rie '`' Z, 40 ZZI Insurance' Branch Office 4901 Louise Drive • Rossmoyne Business Center • P.O. Box 2013 • Mechanicsburg, PA 17055-0710 717.795.8200 Toll Free 1.800.382 1304 • Fax 717.795.2315 • www.erieinsurance.com 3/25/2009 ROBERT RADEBACH, ESQ 912 N River Road Halifax, PA 17032 RE: Erie Claim No: 010170970320 Erie Insured: Frank Lentz Loss Date: 2/19/08 Your Client: Frank Lentz Dear Attorney Radebach, Kerry J. Ritchey, CPCU, AIC Assistant Vice President & Claims Manager Kindly accept this letter in regards to the above referenced matter. Enclosed, please find a complete copy of all subrogation supports for our insured's claim. Per our discussion yesterday, I am providing this documentation to you for the purpose of providing a complete demand upon the defendant via their insurance carrier, Ede. As a courtesy to you, I am sending a duplicate copy of all the materials herein, to the commercial liability adjuster for the defendant. You will need to identify and substantiate your client (our insured)'s additional expenses and losses claimed, above and beyond the supports for the claim payments. There is also a copy of a CD of pictures, provided by the defendant's adjuster. Hopefully this free flow exchange of documentation will facilitate a speedy resolution to this matter. If you have any questions of me, please feel free to contact me at the listed phone number and address. Thank you for your consideration and cooperation in this matter. Very truly yours; FSa cis Guillemette Subrogation Specialist II 1-800-382-1304 x207 Encl/ Subrogation Supports cc: File cc: Susan Philson, Erie, clm# 010171012245 The ERIE is Above All in SERVICE' 06/20/2008 14:26 Claims Management System CSPP032B Check Print Page: 1 Req: SMYERS ,C ---------------------------- ------------------- CHECK NO 26813804 CMS NO Z813804 DATE 05/19/2008 Pay FOUR HUNDRED FIFTY AND 00/100 ABOUT TREES 25 SHEELEY LANE To The BOILING SPRINGS, PA 17007 Order of For EXPENSE (MISC) DWELLING COVERAGE INVOICE # 259 INSURED: LENTZ Operator 2P5WICKARD Claim 017-010170970320 $$$$$$$$450.00 Loss Date 02/19/2008 Tax Id No 1785635780 Cashed C 05/29/2008 ---------------- ------------ ------------------- CHECK NO 26814602 CMS NO 2814602 DATE 05/21/2008 Pay THIRTEEN THOUSAND ONE HUNDRED TWENTY-FIVE AND 00/100 $$$$$13,125.00 FRANK E LENTZ & CHERYL F LENTZ Operator Loss Date To The 1890 LAMPS GAP RD 2P5WICKARD 02/19/2008 Order MECHANICSBURG PA 17050-1615 of Claim Tax Id No 017-010170970320 For PARTIAL PAYMENT TREE DAMAGE AND DEBRIS REMOVAL WITH Cashed LIMITATION APPLIED C 05/29/2008 May 19, 2008 Mr. & Mrs. Lentz 1890 Lambs Gap Rd. Mechanicsburg, PA 17050-1615 Our File: 010170970320 Insured: Frank E. Lentz & Cheryl F. Lentz Date of Loss: 02119/08 Dear Mr. & Mrs. Lentz: As you are aware I am the claim representative assigned to investigate and evaluate the above captioned matter. I have received and reviewed the About Trees report which lists a value for the trees at $47,250.00 (copy enclosed). Coverage for this loss is provided by the Ultracover HomeProtector form 2005, edition date 2/01, wherein it states the following: S AND !. ANARN 9 We will pay up to an additional 5% of the amount of insurance under Dwelling Coverage for loss to trees, shrubs, plants and lawns at the residence premises. Coverage applies only to loss caused by the following perils covered under Perils We Insure Against: fire or lightning, explosion, sonic boom, riot or civil commotion, aircraft, vehicles, smoke, vandalism or malicious mischief and theft. We will not pay for: 1. more than $500 on any one tree, shrub or plant; 2. damage to lawns by vehicles owned or operated by a resident of the residence premises; 3. trees, shrubs, plants or lawns grown for business purposes As per the About Trees report, the total value for the trees is $47,250.00. Applying your $500.00 deductible renders a sub total amount of $46,750.00. Applying the policy limitation of $500.00 per tree renders a total allowance of $12,500.00 for all 25 trees. About Trees reports that the debris removal would be $1,200.00. Under the Ultracover HomeProtector policy, form 2005, edition date 2/01, it states the following: We will pay the expense for removal of: 1. debris of covered property following loss under Perils We Insure Against, 2. ash, dust or particles from volcanic eruption that has caused direct loss to a building or property within a building; or 3. fallen trees which cause damage to covered property, provided coverage is not afforded elsewhere by this policy If the amount of insurance applying to the loss is exhausted, we will pay up to an additional 5% of the amount of insurance applying to the damaged property for removal of debris. As previously determined, the total allowance for all 25 trees is $12,500.00. The About Trees report the total value of the debris removal is $1,200.00. Applying the 5% limitation for DEBRIS REMOVAL AFTER LOSS to the covered loss of $12,500.00 renders a total debris removal of $625.00. Therefore, our total payment is as follows; $12,500.00 - 25 trees $625.00 - debris removal Total $13,125.00 Enclosed please find our check payable to Frank and Cheryl Lentz in the amount of $13,125.00. I will now forward this file over to our subrogation department. If you have any questions feel free to contact me at the number listed below. Sincerely, Mike Leininger Claims Representative Phone Number: 717-766-1691 Fax Number: 717-766-9859 W/Encl About Trees Report Settlement check VERIFICATION We verify that the statements made in this Plaintiffs' Answers to Defendant Insite Development, LLC, Donald H. Erwin, and Patricia A. Provenzano's Interrogatories are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Dated: l7 b I 0? ra E. L / X51- Cheryl F. Le L? Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs : CIVIL ACTION - LAW V. DONALD H. ERWIN and : NO. 2008-06880 PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and : JURY TRIAL DEMANDED NEISWONGER CONSTRUCTION, INC., Defendants : CERTIFICATE OF SERVICE AND NOW, October 6, 2009, I, Robert G. Radebach, Esquire, Attorney for Plaintiffs, hereby certify that I served a copy of Plaintiffs' Answers to Insite Development, LLC, Donald H. Erwin, and Patricia A. Provenzano's Interrogatories in the above-captioned matter upon Jeffrey B. Retting, Esquire, Attorney for Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, John Marshall, Esquire, Attorney for Defendant Neiswonger Construction, Inc., and Jeffrey Clark, Esquire, Attorney for Defendants Donald H. Erwin and Insite Development, LLC, on October 2, 2009, by depositing the same in the United States Mail, postage prepaid in the post office at Harrisburg, Pennsylvania, addressed as follows: Jeffrey B. Rettig, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Jeffrey Clark, Esquire P.O. Box 845 508 North Second Street Harrisburg, PA 17101 John F. Marshall, Esquire 9888 Route 322 in Maria P.O. Box 29 Shippenville, PA 16 4 Kdbert G. Kadebach, 912 North River Road Halifax, PA 17032 (717) 896-2666 I . D.# 19255 Attorney for Plaintiffs P' Erie MR` 27 ? Z\ Insurance Branch Office 4901 Louise Drive • Rossmoyne Business Center • P.O. Box 2013 • Mechanicsburg, PA 17055-0710 717.795.8200 Toll Free 1 800.382.1304 • Fax 717.795.2315 • www.erieinsurance.com 3/25/2009 ROBERT RADEBACH, ESQ 912 N River Road Halifax, PA 17032 RE: Erie Claim No: 010170970320 Erie Insured: Frank Lentz Loss Date: 2/19/08 Your Client: Frank Lentz Dear Attorney Radebach, Kerry J. Ritchey, CPCU, AIC Assistant Vice President 8 Claims Manager Kindly accept this letter in regards to the above referenced matter. Enclosed, please find a complete copy of all subrogation supports for our insured's claim. Per our discussion yesterday, I am providing this documentation to you for the purpose of providing a complete demand upon the defendant via their insurance carrier, Erie. As a courtesy to you, I am sending a duplicate copy of all the materials herein, to the commercial liability adjuster for the defendant. You will need to identify and substantiate your client (our insured)'s additional expenses and losses claimed, above and beyond the supports for the claim payments. There is also a copy of a CD of pictures, provided by the defendant's adjuster. Hopefully this free flow exchange of documentation will facilitate a speedy resolution to this matter. If you have any questions of me, please feel free to contact me at the listed phone number and address. Thank you for your consideration and cooperation in this matter. Very truly yqur-s; Flancis Guillemette Subrogation Specialist II 1-800-382-1304 x207 Encl/ Subrogation Supports cc: File cc: Susan Philson, Erie, clm# 010171012245 The ERIE is Above All in SERVICE* 06/20/2008 14:26 Claims Management System CSPP032B Check Print Page: 1 Req: SMYERS ,C -------------------------------------------------------------- - CHECK NO 26813804 CMS NO Z813804 DATE 05/19/2008 Pay FOUR HUNDRED FIFTY AND 00/100 ABOUT TREES 25 SHEELEY LANE To The BOILING SPRINGS, PA 17007 Order of For EXPENSE (MISC) DWELLING COVERAGE INVOICE # 259 INSURED: LENTZ Operator 2P5WICKARD Claim 017-010170970320 $$$$$$$$450.00 Loss Date 02/19/2008 Tax Id No 1785635780 Cashed C 05/29/2008 ------------------------------------------------------------------------------- CHECK NO 26814602 CMS NO Z814602 DATE 05/21/2008 Pay THIRTEEN THOUSAND ONE HUNDRED TWENTY-FIVE AND 00/100 $$$$$13,125.00 FRANK E LENTZ & CHERYL F LENTZ Operator Loss Date To The 1890 LAMPS GAP RD 2P5WICKARD 02/19/2008 Order MECHANICSBURG PA 17050-1615 of Claim Tax Id No 017-010170970320 For PARTIAL PAYMENT TREE DAMAGE AND DEBRIS REMOVAL WITH Cashed LIMITATION APPLIED C 05/29/2008 May 19, 2008 Mr. & Mrs. Lentz 1890 Lambs Gap Rd. Mechanicsburg, PA 17050-1615 Our File: 010170970320 Insured: Frank E. Lentz & Cheryl F. Lentz Date of Loss: 02/19108 Dear Mr. & Mrs. Lentz: As you are aware I am the claim representative assigned to investigate and evaluate the above captioned matter. I have received and reviewed the About Trees report which lists a value for the trees at $47,250.00 (copy enclosed). Coverage for this loss is provided by the Ultracover HomeProtector form 2005, edition date 2/01, wherein it states the following: A At ?%? 5 We will pay up to an additional 5% of the amount of insurance under Dwelling Coverage for loss to trees, shrubs, plants and lawns at the residence premises. Coverage applies only to loss caused by the following perils covered under Perils We Insure Against. fire or lightning, explosion, sonic boom, riot or civil commotion, aircraft, vehicles, smoke, vandalism or malicious mischief and theft. We will not pay for: 1. more than $500 on any one tree, shrub or plant; 2. damage to lawns by vehicles owned or operated by a resident of the residence premises; 3. trees, shrubs, plants or lawns grown for business purposes As per the About Trees report, the total value for the trees is $47,250.00. Applying your $500.00 deductible renders a sub total amount of $46,750.00. Applying the policy limitation of $500.00 per tree renders a total allowance of $12,500.00 for all 25 trees. About Trees reports that the debris removal would be $1,200.00. Under the Ultracover HomeProtector policy, form 2005, edition date 2/01, it states the following: We will pay the expense for removal of: 1. debris of covered property following loss under Perils We Insure Against, 2. ash, dust or particles from volcanic eruption that has caused direct loss to a building or property within a building; or 3. fallen trees which cause damage to covered property, provided coverage is not afforded elsewhere by this policy If the amount of insurance applying to the loss is exhausted, we will pay up to an additional 5% of the amount of insurance applying to the damaged property for removal of debris. As previously determined, the total allowance for all 25 trees is $12,500.00. The About Trees report the total value of the debris removal is $1,200.00. Applying the 5% limitation for DEBRIS REMOVAL AFTER LOSS to the covered loss of $12,500.00 renders a total debris removal of $625.00. Therefore, our total payment is as follows; $12,500.00 - 25 trees $625.00 - debris removal Total $13,125.00 Enclosed please find our check payable to Frank and Cheryl Lentz in the amount of $13,125.00. I will now forward this file over to our subrogation department. If you have any questions feel free to contact me at the number listed below. Sincerely, Mike Leininger Claims Representative Phone Number: 717-766-1691 Fax Number: 717-766-9859 W/Encl About Trees Report Settlement check OF THE: 1-.-70-i'-?t-,NOTAPY 200900,T --8 Pry ?: 40 CUB, G'TR' THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Attorney I.D. No. 72668 kmcnamara@tthlaw.com (717) 237-7132 Jeffrey M. McCormick, Esquire Attorney I.D. No. 95049 j m cco rm i ck @tth l a w. co m P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Defendant Neiswonger Construction FRANK E. LENTZ, III and CHERYL F LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-06880 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO PLEAD TO: All Parties and Counsel: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By, ?Z- C y? Kevin C. McNamara, Esquire I.D.#72668 Attorneys for Defendant DATE: Neiswonger Construction, Inc. ?•?'?9?D THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Attorney I.D. No. 72668 kmcnamara@tthlaw.com (717) 237-7132 Jeffrey M. McCormick, Esquire Attorney I.D. No. 95049 jmccormick@fthlaw.com P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Defendant Neiswonger Construction FRANK E. LENTZ, III and CHERYL F LENTZ, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., NO. 2008-06880 CIVIL TERM JURY TRIAL DEMANDED Defendants DEFENDANT NEISWONGER CONSTRUCTION, INC.'S ANSWER TO CROSSCLAIM' OF 1NSITE DEVELOPMENT, LLC AND DONALD H. ERWIN 25. Admitted in part and denied in part. It is admitted that Insite and Neiswonger entered into a contract for the work set forth on Exhibit A to the Crossclaim. However, it is denied that the figures on the contract ultimately proved to be correct as the Crossclaim Plaintiff failed to provide Neiswonger Construction with accurate plans at the time the project was bid. 26. Admitted with qualification. It is admitted that among the activities that Neiswonger undertook pursuant to its agreement with Insite was to clear trees and brush within a sanitary sewer easement. As to who was to obtain the easement, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and proof thereof is demanded. 27. Admitted in part and denied in part. It is admitted that employees of Neiswonger began clearing land that was supposed to be within an easement or right- of-way. Said work was undertaken at the direction of Donald Erwin who was anxious to have the sewer connection completed so that he could commence the sale of lots. Neiswonger relied upon Mr. Erwin or his representatives to provide proper and adequate directions with respect to the clearing of the right-of-way. Whether the land actually cleared by Neiswonger was fully within a proper right-of-way, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and proof thereof is demanded. 28. Denied. Neiswonger cleared some trees and brush in the area designated by Mr. Erwin. The area that Neiswonger cleared was marked before construction commenced. COUNT I 29. Answering Defendant hereby incorporates its answers to Paragraphs 25 through 28 as if fully set forth herein. 30. Denied. These allegations represent conclusions of law to which no response is required. By way of further answer, it is denied that Neiswonger breached its contract with Insite Development and/or Donald Erwin. 757729-1 2 31. Denied. It is denied that Neiswonger breached its contract with Insite Development or Donald Erwin, or that either of those entities incurred costs as a result of anything Neiswonger did or did not do. 32. Admitted in part and denied in part. While it is admitted that the Plaintiffs ultimately had to obtain a separate easement and/or related papers and permits, costs related to such things were not in any way attributable to things that Neiswonger Construction did or did not do on this project. WHEREFORE, Neiswonger Construction respectfully requests that Count I of Insite Development and Donald Erwin's Crossclaim be dismissed without cost to it. COUNT II - NEGLIGENCE Insite Development, LLC and Donald H. Erwin v. Neiswonger Construction, Inc. 33. Answering Defendant hereby incorporates its answers to Paragraphs 25 through 32 above and its Answer with New Matter to Plaintiffs' Complaint as if fully set forth herein. 34. Admitted in part and denied in part. It is admitted that Neiswonger cleared trees and brush in the area designated by Mr. Erwin or his representatives. The area was marked by flags prior to the commencement of this work. 35. Denied as stated. While Neiswonger did remove trees and brush from the area that it was directed to by Mr. Erwin or his representatives, the area was marked before Neiswonger commenced this work. 36. Denied as stated. Although it is admitted that Neiswonger Construction cleared trees and brush and that the Plaintiffs allege that trees and brush outside of the 757729-1 3 easement were cleared, it is denied that Neiswonger is responsible for clearing anything other than what it was directed to do by Mr. Erwin and/or his representatives. 37(a)-(d). Denied. It is denied that Neiswonger was negligent in any of the respects alleged. Although Neiswonger did clear trees and brush in the area directed by Mr. Erwin and/or his representatives, this work was performed under the reasonable belief that the directions Neiswonger had received were accurate and that an easement actually existed where designated. 38. Denied. It is denied that Neiswonger was negligent or that anything Neiswonger did or did not do brought about any damages to the Crossclaim Plaintiff. WHEREFORE, Neiswonger Construction respectfully requests that Count II of the Crossclaim be dismissed without cost to it. COUNT III 39. Answering Defendant hereby incorporates its answers to Paragraphs 25 through 38 and its Answer with New Matter to Plaintiffs' Complaint as if fully set forth herein. 40. Denied. Neiswonger was directed to clear the property by Mr. Erwin because he was anxious to have the sewer connection completed so that he could commence selling lots. 41. Admitted. 42. Denied. Mr. Erwin is believed to have been acting as an owner or agent of Insite Development with respect to the directions given to Neiswonger for clearing the easement. 757729-1 4 43. Denied. These allegations represent conclusions of law to which no response is required. By way of further answer, it is denied that Neiswonger is responsible to any party in this case on any theory of liability. WHEREFORE, Neiswonger Construction respectfully requests that Count III of the Crossclaim be dismissed without cost to it. NEW MATTER 44. Counts II and III of the Crossclaim are barred by the Economic Loss Doctrine. 45. At all times pertinent hereto, Neiswonger Construction was acting on the directions of Donald Erwin and/or Insite Development with respect to the clearing of ground to complete the sewer connection to the Hawks Landing Development. 46. On information and belief, Donald Erwin, Patricia Provenzano and Insite Development, LLC did not or may not have had a proper sanitary sewer easement at the time Neiswonger was directed by Erwin to clear land which the Lentzes now claim was their land. The fact that Insite, Erwin and/or Provenzano subsequently had to obtain a new easement at some cost in time and money is proof that they did not have a proper easement to begin with. 47. Neiswonger's actions in this matter were at the direction of Donald Erwin and/or Insite Development, LLC. 48. After the clearing of the ground that is the subject to this litigation, representatives of Neiswonger and Mr. Erwin discussed the resolution of any issues involving the sanitary sewer line extension, including any issues or costs regarding any rights-of-way for sanitary sewer line installation and reached an agreement to resolve 757729-1 5 any and all issues between the Crossclaim Plaintiffs and Neiswonger Construction for a credit in the amount of $25,000. This credit was given against cost overruns on the Hawks Landing project for which the Crossclaim Plaintiffs were responsible. A copy of the written agreement signed by Mr. Erwin is attached hereto and marked Exhibit A. 49. All of the crossclaims raised by the Crossclaim Plaintiffs are barred by the principle of release and/or accord and satisfaction. 50. In view of the March 31, 2008 agreement, the crossclaims asserting losses related to the sanitary sewer line extension, including any issues or costs regarding any rights-of-way for sanitary installation that are raised in this litigation are frivolous. WHEREFORE, Neiswonger Construction respectfully requests that the Crossclaims be dismissed without cost to it and that fees and costs be assessed against the Crossclaim Plaintiffs for asserting frivolous claims. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: / cl-'Y? - Kevin C. McNamara, Esquire I . D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 DATE: l ),1 Y109 Attorneys for Defendant Neiswonger Construction, Inc. 757729-1 6 Nov.10. 2009 4:57PM ORVY JOHN MARSHALL Neiswonger Construction, Inc 17592 Rte 322 Strattanville, Pa 1625$ ($14) 764.3455 ($14) 764-5772 NeiconQa alltel.net .,......_ ............. ........................ . March 31, 2002 inshe Development Hawks Landing Mechanicsburg Fa. RE: ovemat note and Demand Note Agreenent No. 6469 P. 2 Don Erwin, Insitc Development, agrees to furnish a DernuW Note Agrement, within 7 days, for cost overrun on the Hawks Landing project in the amount of 7.00 due to Flan chOnges. Find ll eaolutkm to =Y issues involving SWWrY Sewer line extension from Swgtsry ms"e #2 to existing Sanitary ntsuhole connection including any issues or costs regarding any Fight-Of-Ways for Sanitary installatiM Neiswonga ConstruCd0n agroes to s credo of S25,0W, #-? Dan Etwm, posits Developmem, agtees to find within 14 days following final installation of Phase 1536,655. Fittest Amount of Demand Note Agreement is $57,312 and is W! le within 30 days of final =mVietion of Hawks Landing but exceed 90 days £mm the ct=tion of this Dou nd Note Agreement. Don Erwin, Inane Davelopmemt, agtbos that Erwin has paid Neiswonger 382,495 *cm NeiswonVes contt a dated 9/13/07 for excavation from Rewin,s Comfort Suite project st Wentzville Road and Technology Parkway located in Hampden Township. Erwin eat= then the balance of $91,705 will be paid to Neiswonger in payment drew mquests as excavation commences firm ilco Comfort Sams project" Final Demand NOW Agreement and Resolution MOM within 48 hotus of the above date if not exmuted. Nov, 10, 2009 47RM ORNEY JOHN MARSHALL No. 6469 ?'. David Neiswoager Insite Developmag LLC, Don Erwin el? VERIFICATION w< IZ1 A c6osx,.` I, 4411A- that I am an authorized representative of NEISWONGER CONSTRUCTION, INC., that I make this Verification on behalf of NEISWONGER CONSTRUCTION, INC., and that I am familiar with the facts set forth in the foregoing document. I have read the foregoing document and hereby affirm that it is true and correct to the best of my personal knowledge, information and belief. This Verification is made pursuant to 18 Pa.C.S. § 4904 relating to unworn falsification to authorities. NEISWONGER CONSTRUCTION, INC. B y: /'4 --:iv DATE: /a-y- 6? 1571-1 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following by placing same in the United States mail, postage prepaid, on the $ day of &L`wti "V , 2009: Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 Jeffrey C. Clark, Esquire Wix, Wenger & Weidner P.O. Box 845 508 North Second Street Harrisburg, PA 17101-0845 Jeffrey B. Rettig, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 THOMAS, THOMAS & HAFER, LLP ? C., By: Kevin C. McNamara, Esquire 757729-1 7 OF THE PF rNr) 40TARY 2009 DEC -9 P11 2: 26 CUW?u Jul", FRANK E. LENTZ, III and CHERYL F LENTZ, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. DONALD H. ERWIN and PATRICIA A. PROVENZANO, INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., NO. 2008-06880 CIVIL TERM JURY TRIAL DEMANDED Defendants PRAECM FOR WITHDRAWAL OF APPEARANCE To THE PROTHONOTARY: Please withdraw the appearance of the John F. Marshall, Esquire, as attorney for Defendant Neiswonger Construction, Inc. in the above matter. DATE: 111;6Cpq By: ARSHALL, ESQUIRE THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Attorney I.D. No. 72668 kmcnamara@tditw.com (717) 237-7132 Jeffrey M. McCormick, Esquire Attorney I.D. No. 95049 jmccormicklaw.com P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Defendant Neiswonger Construction FRANK E. LENTZ, III and CHERYL F LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-06880 CIVIL TERM JURY TRIAL DEMANDED PRAECN+E FOR ENTRY OF APPEARANCE I TO THE PROTHONOTARY: Please enter the appearance of the undersigned as attorneys for Defendant Neiswonger Construction, Inc. in the above matter. DATE: / -) /9-1 D 7g THO AS, THOMAS & HAFER, LLP By: r C KEVIN C. McNAMARA, ESQUIRE Attorney I. D. No. 72668 Attorneys for Defendant Neiswonger Construction, Inc. 757729-1 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following by placing same in the United States mail, postage prepaid, on the `3 y op!:. rw?arim , 2009: Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 Jeffrey C. Clark, Esquire Wix, Wenger & Weidner P.O. Box 845 508 North Second Stmt Harrisburg, PA 17101-0845 Jeffrey B. Rettig, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 John F. Marshall, Esquire P.O. Box 29 Shippenville, PA 16254 THOMAS, THOMAS & HAFER, LLP By: Kevin C. McNamara, Esquire 757729-1 FILED-- FFICE OF THE MOTE NOT Y 2009 DEC -9 PH 2: 26 GUM c :> ,. tWNTY PENNSYLVANL a "?tP rHE PFOMlW`i`AW 2010 JAN -5 AM 11= 53 IN THE COURT OF COMMON PLEAS AW'BEFL4 ' CUMBERLAND COUNTY, PENNSYLVA eNNSYl.V" FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants CIVIL ACTION -LAW : No. 2008-06880 JURY TRIAL DEMANDED RESPONSE TO NEW MATTER OF DEFENDANT NEISWONGER CONSTRUCTION INC. TO CROSSCLAIM OF INSITE DEVELOPMENT. LLC AND DONALD H. ERWIN AND NOW, come Defendants, Insite Development, LLC, and Donald H. Erwin, by and through their attorneys, Wix, Wenger and Weidner, and file this Response to New Matter of Defendant Neiswonger Construction, Inc., to Crossclaim of Insite Development, LLC, and Donald H. Erwin, stating as follows: 44. Paragraph 44 is a conclusion of law to which no answer is required. 45. Denied. It is specifically denied that Neiswonger was acting on the directions of Erwin or Insite Development in clearing the ground, and strict proof is demanded. 46. Denied. It is specifically denied that Erwin, Provenzano, or Insite Development did not have a proper sanitary sewer easement or that Neiswonger was directed to clear the land, which Plaintiffs claim to own, and strict proof thereof is demanded. 1 47. Denied. It is specifically denied that the actions taken by Neiswonger were at the direction of Erwin or Insite Development, and strict proof is demanded. 48. Denied. It is specifically denied that Erwin and Neiswonger reached an agreement to resolve any or all issues between the parties for a credit against cost overruns, and strict proof is demanded. The document attached to Neiswonger's Answer is a writing that speaks for itself. To the extent an answer is required, it is specifically denied that the document was intended, or does, resolve all issues between Erwin, Insite Development, and Neiswonger Construction. 49. Paragraph 49 is a legal conclusion to which no answer is required. 50. Paragraph 50 is a legal conclusion to which no answer is required. To the extent an answer is required, it is specifically denied that there is an agreement to resolve any or all issues relating to the right-of-way raised in this litigation. WHEREFORE, Crossclaim Plaintiffs respectfully request that this Honorable Court enter judgment in their favor and against Defendant, Neiswonger Construction, Inc., as more fully set forth in the Cross-claim. Date: //,(Y// Q Respectfully submitted, WIX, W04 &WEIDNER By: Jeffr . lark, Esquire Att y I.D. # 89277 P. ox 845 508 North Second Street Harrisburg, PA 17101-0845 (717) 234-4182 Attorneys for Defendants, Donald H. Erwin and Insite Development, LLC 2 VERIFICATION I, Donald H. Erwin, President of Insite Development, LLC, Defendant in the foregoing Response to New Matter of Defendant Neiswonger Construction, Inc., to Crossclaim of Insite Development, LLC, and Donald H. Erwin, have read the foregoing Response and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing Response are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. INSITE DEVELOPMENT, LLC Date: onald H. n, Pr ident IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. : CIVIL ACTION - LAW : No. 2008-06880 DONALD H. ERWIN and JURY TRIAL DEMANDED PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants CERTIFICATE OF SERVICE I hereby certify that I true and correct copy of the foregoing Response to New Matter of Defendant Neiswonger Construction, Inc., to Crossclaim of Insite Development, LLC, and Donald H. Erwin was sent by regular United States mail, postage prepaid to the following: Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 Jeffrey B. Rettig, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Date: / /D Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 WIX, ENG & WEIDNER Byc ' /yt'?r1 arva Owings ughma , Paralegal P.O. Box 845 508 North Second Street Harrisburg, PA 17101-0845 (717) 234-4182 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. : CIVIL ACTION -LAW : No. 2008-06880 DONALD H. ERWIN and JURY TRIAL DEMANDED PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants PRAECIPE To the Prothonotary: G=7 J - -n _ 'T7 - r G cr Please withdraw the appearance of Wix, Wenger & Weidner, P.C., and Jeffrey C. Clark, Esquire, as attorneys for the Defendants Donald H. Erwin and Insite Development, LLC, in the above case. Date: Respectfully submitted, WIX, W NER, P.C. By: ' 'k I rk, I.D. 89277 Jeff9P.B 50 r h econd Street P. o x 845 Harrisburg, PA 17108-0845 (717) 234-4182 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. CIVIL ACTION -LAW No. 2008-06880 DONALD H. ERWIN and JURY TRIAL DEMANDED PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants CERTIFICATE OF SERVICE I hereby certify that the foregoing Praecipe was served by first class mail this day to the following: Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 Jeffrey B. Rettig, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Donald H. Erwin and Insite Development, LLC 1943 Monterrey Drive Mechanicsburg, PA 17050 , WENGER & WEIDNER Date: JWI D • A 19 1 11 I [IV N-Ok i % V 1 Dula/Cribben, R'aralegal 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Attorney I.D. No. 72668 kmcnamara@tthlaw.com (717) 237-7132 P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Defendant Neiswonger Construction, Inc. FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants NO. 2008-06880 CIVIL TERM JURY TRIAL DEMANDED DEFENDANT NEISWONGER CONSTRUCTION, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND NOW, comes Defendant Neiswonger Construction, Inc., by and through its attorneys, Thomas, Thomas & Hafer, LLP, and moves for partial summary judgment on the issue of damages as follows: 1. This is a civil suit which arises from the alleged removal of trees from the Plaintiffs' residential property during the course of real estate development activities undertaken by the Defendants. 2. In their Complaint, the Plaintiffs allege that certain trees were removed from their property and that as a result of the tree removal, the Plaintiffs are entitled to recover the replacement cost of the trees. 3. The Plaintiffs further allege that they are entitled to collect treble damages e01 01 r FP 20 PIN f : 17 CLI''ICERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA pursuant to 42 Pa.C.S. § 8311(a)(2). 4. Finally, the Plaintiffs assert that they are entitled to recover litigation costs associated with valuing their damages and surveying their lands, also under 42 Pa.C.S. § 8311(a)(2). 5. 42 Pa.C.S. § 8311(a)(2) does not apply to this case because the trees removed from the Plaintiffs' property do not constitute "timber' as defined under this statute, nor does the statute apply to the removal of trees from residential property. 6. Since § 8311(a)(2) does not apply, the Plaintiffs are not entitled to recover costs associated with valuing their damages, costs associated with a survey of their property or treble damages. 7. The cost of replacing the trees in this case is not the correct measure of damages and, instead, the reduction in value of the property after the removal of trees is the proper measure of damages. 8. The Defendant is entitled to summary judgment on the issues of damages as stated above and the Plaintiffs' remedy in this case in the event they are able to prove liability is limited to the reduction in value of the real estate. WHEREFORE, Defendant Neiswonger Construction, Inc. respectfully requests that partial summary judgment on the issue of damages be entered in its favor and the Plaintiffs' damages limited to the reduction in value of the property. DATE: 4/19/11 Respectfully submitted, THOMA , THOMAS & HAFER, LLP By: IM Kevin C. McNamara, Esquire Attorneys for Defendant Neiswonger Construction, Inc. 933483.1 2 . -- 16 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following by placing same in the United States mail, postage prepaid, on the 19th day of April 2011: Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 Jeffrey B. Rettig, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 THOMAS, THOMAS & HAFER, LLP By:? n C. McNamara, Esquire 933483.1 3 CAi ? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for;?the bixt A Argument Court.) May 27 2011 - k ------------------- ------------------------------------------------------------ ---a - CAPTION OF CASE > (entire caption must be stated in full) J, FRANK E. LENTZ, III and CHERYL F. LENTZ © ., c? -- vs. .-3 ,,.° c DONALD H. ERWIN and PATRICIA A. PROVENZANO, INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC. No. Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Motion for Partial Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Robert Radebach, Esquire, 912 North River Road, Halifax, PA 17032 (Name and Address) (b) for defendants: Kevin C. McNamara, Esquire, 305 N. Front St., Harrisburg, PA 17101 (Name and Address) Jeffrey B. Rettig, Esquire, 301 Market Street, Lemoyne, PA 17043 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 27, 2011 Signature Kevin C. McNamara, Esquire Print your name Defendant Neiswonger Construction, Inc. 4/19/11 Attorney for Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with tthe 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. 06880 20x8 h Johnson, Duffle, Stewart & Weidner By: Jeffrey B. Rettig I.D. No. 332312 Andrew P. Dollman I.D. No. 209466 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 ibrCa?idsw.com apd(&-idsw. com FRANK E. LENTZ, III and CHERYL F LENTZ, Attorneys for Defendants Donald H. Erwin and Patricia A. Provenzano and Insite Development, LLC mw <> r- -? C--) : 21 IN THE COURT OF COMMON PUM S OF °r, CUMBERLAND COUNTY, PENNS -; AEtA Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., NO. 2008-06880 CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants MOTION FOR PARTIAL SUMMAMUDGMENT OF DEFENDANTS DONALD H. ERWIN, PATRICIA A. PROVENZANO AND INSITE DEVELOPMENT, LLC AND NOW, come the Defendants, Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, by and through their attorneys, Johnson, Duffle, Stewart & Weidner, and file the within Motion for Partial Summary Judgment and state the following: 1. On November 21, 2008, Plaintiffs commenced this action by filing a Writ of Summons. A Complaint was filed on April 27, 2009, alleging, in part, that the Moving Defendants removed trees from the Plaintiffs' residential property in the course of real estate development. 2. In their Complaint, Plaintiffs allege that trees were improperly removed from their property and as a result of the removal, Plaintiffs are entitled to recover "damages incurred to the land," i.e., the replacement cost of the trees. 3. In their Complaint, Plaintiffs allege that they are entitled to the following damages: a. The cost of a survey to the Plaintiffs' land in the amount of $3,585.50; b. The expense to value the damages to the land in the amount of $450.00; C. The cost to replace the trees in the amount of $48,650.00; and, d. Treble damages pursuant to 42 Pa. C.S.A. § 8311(a)(2)(i). 4. Plaintiffs are demanding a total of $149,985.50. 5. 42 Pa. C.S.A. § 8311 is inapplicable to this case because the trees removed from the Plaintiffs' property are not timber as defined within the statute itself. 6. Furthermore, 42 Pa. C.S.A. § 8311 is inapplicable to the removal of trees from residential property. 7. Rather, the correct measure of damages in a case where a plaintiff alleges the unlawful removal of trees from a residential property is the reduction in the value of the real estate after the trees had been removed as compared to the value of the real estate prior to the trees' removal. See Christian v. Yanoviak, 945 A.2d 220, 2008 PA Super 40 ( Pa. Super. Ct. 2008). 8. The Moving Defendants are entitled to summary judgment as this is a pure issue of law and the Plaintiffs' remedy, should they be able to prove liability, is limited to the reduction in value of the real estate. WHEREFORE, Moving Defendants, Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, respectfully request the Court grant their Motion for Partial Summary Judgment on the issue of damages and that Plaintiffs' damages be limited to the reduction in the value of the real estate. Respectfully submitted, JOHNSON, DU F E STEWART & WEIDNER By: Jeffrey B. Rettig, Esquire Attorney I.D. No. 19616 Andrew P. Dollman, Esquire Attorney I.D. No. 209466 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants Donald H. Erwin and Patricia A. Provenzano and Insite Development, LLC 439037 CERTIFICATE OF SERVICE AND NOW, this day of April, 2011, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 Counsel for Plaintiff Kevin C. McNamara, Esquire Jeffrey M. McCormick, Esquire Thomas Thomas & Hafer P. O. Box 999 Harrisburg, PA 17108-0999 Counsel for Co-Defendant Neiswonger Construction, Inc. JOHNSON, DUFFIE, STEWART & WEIDNER By: 6?K Andrew P. Dollman 0#-l n PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) May 27, 2011 -- --------------------------------------------------- ------------------------------------------------------------- CAPTION OF CASE - (entire caption must be stated in full) FRANK E. LENTZ, III and CHERYL F. LENTZ h h "" - =M Y1 t ?_ vs. = .. ?: DONALD H. ERWIN and PATRICIA A W CD . PROVENZANO, WSITE DEVELOPMENT, LLC and :moo NEISWONGER CONSTRUCTION, INC. 06880 2008 ? C-) -A' c . No. CD 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Motion for Partial Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Robert Radebach, Esquire, 912 North River Road, Halifax, PA 17032 (Name and Address) (b) for defendants: Kevin C. McNamara, Esquire, 305 North Front Street, Harrisburg, PA 17101 (Name and Address) Andrew P. Dollman, Esquire, 301 Market Street, Lemoyne, PA 17043 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 27, 2011 Signature Andrew P. Dollman, Esquire Print your name beWwwk 6-rom Pro, vtnsctn o Date: ' Attorney for ancj In s i k INSTRUCTIONS: 1. Original and 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. Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs "FILED-OFFICE OF THE PROTHONOTAP' 2011 MAY 24 AM 8: 05 CU PENNSYLOVANIANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants : CIVIL ACTION - LAW : NO. 2008-06880 JURY TRIAL DEMANDED ANSWER TO MOTION FOR PARTIAL SUMMARY JUDGMENT FILED BY NEISWONGER CONSTRUCTION. INC. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. Plaintiffs have averred that their property was damaged by cutting and removal of trees, which had value for use as wood products as defined under the statute. Plaintiffs do not agree with the assertion that 42 Pa. C.S. §8211(a)(2) does not apply. 6. Plaintiffs do not agree with the assertion that 42 Pa. C.S. §8211(a)(2) does not apply. Since the wood would have been usable for wood pulp at the very least. 7. Denied. On the contrary Plaintiffs aver that the damages pleaded in the Complaint were within the purview of the statute, or in the alternative the costs of repair would be a proper measure of damages, as pleaded in the Complaint. 8. Denied. On the contrary Plaintiffs aver that the measure of damages is properly left for trial in this action. WHEREFORE, Plaintiffs request that the Court dismiss the Motion for Partial Summary Judgment. Date: o Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants : CIVIL ACTION - LAW : NO. 2008-06880 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, May 24, 2011, I, Robert G. Radebach, Esquire, Attorney for Plaintiffs, hereby certify that I served a copy of Plaintiffs' Answer to Motion for Partial Summary Judgment Filed by Neiswonger Construction, Inc. in the above-captioned matter upon Jeffrey Retting, Esquire, Attorney for Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, and upon Kevin McNamara, Esquire, Attorney for Defendant Neiswonger Construction, Inc., on May 24, 2011, by depositing the same in the United States Mail, postage prepaid in the post office at Harrisburg, Pennsylvania, addressed as follows: Jeffrey B. Rettig, Esquire 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Kevin C. McNamara, P.O. Box 999 Harrisburg, PA 17108 Robert G. Radebach, 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs Robert Radebach, Esquire OF THEEPROT4ONpTARY 912 North River Road 2011 MAY 24 AM 8: 05 Halifax, PA 17032 H 717-8-2666 al fax, PA 1 CUMBERLAND COUNTY robradebachatty@aol.com PENNSYLVANIA Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants : CIVIL ACTION - LAW NO. 2008-06880 JURY TRIAL DEMANDED ANSWER TO MOTION FOR PARTIAL SUMMARY JUDGMENT FILED BY DEFENDANTS DONALD H. ERWIN PATRICIA A. PROVENZANO AND INSITE DEVELOPMENT. LLC 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. Plaintiffs have averred that their property was damaged by cutting and removal of trees, which had value for use as wood products as defined under the statute. Plaintiffs do not agree with the assertion that 42 Pa. C.S. §8211(a)(2) does not apply. 6. Plaintiffs do not agree with the assertion that 42 Pa. C.S. §8211(a)(2) does not apply. Since the wood would have been usable for wood pulp at the very least. 7. Denied. On the contrary Plaintiffs aver that the damages pleaded in the Complaint were within the purview of the statute, or in the alternative the costs of repair would be a proper measure of damages, as pleaded in the Complaint. 8. Denied. On the contrary Plaintiffs aver that the measure of damages is properly left for trial in this action. WHEREFORE, Plaintiffs request that the Court dismiss the Motion for Partial Summary Judgment. Date: 6 i 6 6 - -- - Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs CIVIL ACTION - LAW V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC., Defendants NO. 2008-06880 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, May 24, 2011, I, Robert G. Radebach, Esquire, Attorney for Plaintiffs, hereby certify that I served a copy of Plaintiffs' Answer to Motion for Partial Summary Judgment Filed by Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, in the above-captioned matter upon Jeffrey Retting, Esquire, Attorney for Defendants Donald H. Erwin, Patricia A. Provenzano and Insite Development, LLC, and upon Kevin McNamara, Esquire, Attorney for Defendant Neiswonger Construction, Inc., on May 24, 2011, by depositing the same in the United States Mail, postage prepaid in the post office at Harrisburg, Pennsylvania, addressed as follows: Jeffrey B. Rettig, Esquire Kevin C. McN 301 Market Street P.O. Box 999 P.O. Box 109 Harrisburg, P. Lemoyne, PA 17043 KOOert u. Kaaeoacn, 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs FRANK E. LENTZ, III and CHERYL F LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZ,ANO, INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PEN?SY, XAVJA Z? te'- ». r Qr .. C)c? NO. 2008-6880 CIVIL :E-i D cs ? ?-- JURY TRIAL DEMANDED '.`.' O IN RE: DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT BEFORE OLER, J., EBERT, J. AND MASLAND, J ORDER OF COURT AND NOW this 8th day of July, 2011, upon consideration of Defendants' Motions for Partial Summary Judgment, the briefs filed by the parties and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that Defendants' Motions for Partial Summary Judgment are DENIED. By the Court, %\-t I M. L. Ebert, Jr., ? Robert Radebach, Esquire Attorney for Plaintiffs 91.2 North River Road Halifax, PA 17032 J. ? Jeffrey B. Rettig, Esquire Andrew P. Dollman, Esquire Attorneys for Defendants Donald H. Erwin and Patricia A. Provenzano and Insite Development, LLC 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Kevin C. McNamara, Esquire Jeffrey M. McCormick, Esquire Attorneys for Defendant Neiswonger Construction, Inc. P.O. Box 999 Harrisburg, PA 17108-0999 Ma'ld 1/11/11 0rA 2 FRANK E. LENTZ, III and CHERYL F LENTZ, Plaintiffs V. DONALD H. ERWIN and PATRICIA A. PROVENZANO, INSITE DEVELOPMENT, LLC and NEISWONGER CONSTRUCTION, INC Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION NO. 2008-06880 JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT BEFORE OLER, J., EBERT, J. AND MASLAND, J ORDER OF COURT EBERT, J., July 7, 2011 - PROCEDURAL HISTORY Plaintiffs Frank E. Lentz, III and Cheryl F. Lentz commenced this civil action by filing a Writ of Summons on November 21, 2008. On April 27, 2009, Plaintiffs filed a Complaint alleging that Defendants Donald H. Erwin, Patricia A. Provenzano, Insite Development, LLC and Neiswonger Construction, Inc. separately or jointly came on to the lands of Plaintiffs, without prior notice, and removed trees, shrubs, and vegetation in preparation for excavation and installation of a sanitary sewer line. Plaintiffs are seeking damages under Section 8311 of the Judicial Code of Pennsylvania, 42 Pa.C.S.A. § 8311. On April 20, 2011, Defendant Neiswonger filed a Motion for Partial Summary Judgment, claiming that 42 Pa.C.S.A. § 8311 does not apply to this case because the trees removed from the Plaintiffs' property do not constitute "timber" as defined under the statute. On April 28, 2011, Defendants Erwin, Provenzano, and Insite filed a Motion for Partial Summary Judgment asserting the same claim. Having found that additional fact finding is required to determine the proper measure of damages in this case, Defendants' Motions for Partial Summary Judgment are denied. STATEMENT OF FACTS Defendants Donald H. Erwin and Patricia A. Provenzano own land located in Hampden Township, Cumberland County, Pennsylvania.' Defendant Insite Development, LLC was involved in developing a residential subdivision called "Hawk Landing" which includes lands owned by Defendant Insite as well as Defendants Erwin and Provenzano.Z According to Defendants Erwin, Provenzano, and Insite, Defendant Neiswonger Construction, Inc. was an independent contractor of Defendant Insite.3 Plaintiffs Frank E. Lentz, III and Cheryl F. Lentz allege that, on February 19, 2008, Defendants separately or jointly entered upon the lands of Plaintiffs which are wetlands traversed by a tributary of Sears Run, without prior consent.4 Plaintiffs further allege that Defendants commenced to remove trees, shrubs, and vegetation in preparation for excavation and installation of a sanitary sewer line connecting "Hawk Landing" to the public sewer system of Hampden Township Sewer Authority.5 Plaintiffs subsequently had their lands surveyed, allegedly to confirm that the Defendants had trespassed.6 Plaintiffs also consulted an Arborist to assess the value of the trees that were removed. Plaintiffs allege that Defendants deliberately and intentionally trespassed upon their Plaintiffs' Complaint, filed Apr. 27, 2008, ¶ 6 Z Defendants Erwin, Provenzano, and Insite's Answer with New Matter and Cross Claims, filed Jun. 2, 2009, ¶ 7 3 Defendants Erwin, Provenzano, and Insite's Answer with New Matter and Cross Claims, ¶ 8 4 Plaintiffs' Memorandum Opposing Motions for Summary Judgment, filed May 24, 2011, p. I S Plaintiffs' Complaint at ¶ 8 6 Plaintiffs' Complaint at ¶ 11 Plaintiffs' Complaint at ¶ 15 2 lands and are seeking damages under 42 Pa.C.S.A. § 8311 for the timber appraisal, the survey, and treble damages.8 Defendants deny trespassing upon Plaintiffs' lands.9 Furthermore, if Plaintiffs' lands were trespassed upon, Defendants deny that it was deliberate and intentional.' 0 Although Defendants have not admitted any liability in this action, they have all filed Motions for Partial Summary Judgment seeking to limit Plaintiffs' damages. Defendants assert that 42 Pa.C.S.A. § 8311 does not apply to this case because the trees removed from the property do not constitute "timber" as defined under the statute. t i If Plaintiffs prove liability, Defendants assert that the proper measure of damages in this case is the reduction in value of the real estate. 12 DISCUSSION Under Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, after relevant pleadings are closed, "any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report ..." Pa. R.C.P. 1035.2(1). A Motion for Summary Judgment involves an evidentiary record which entitles the moving party to a judgment as a matter of law. Toy v. Metropolitan Life Insurance Co., 928 A.2d 186, 195 (Pa. 2007). When examining a Motion for Summary Judgment, the court must view the record in the light most favorable to the non-moving party, and any doubt about the existence of a genuine issue of material fact must be resolved against the moving party. Jones v. SEPTA, 772 A.2d 435, 438 (Pa. 2001). The purpose of summary judgment is to prevent 8 Plaintiffs' Complaint at ¶ 13, 14, 15, and 16 9 Defendants Erwin, Provenzano, and Insite's Answer with New Matter and Cross Claims at ¶ 9 and 22; Defendant Neiswonger's Answer, New Matter, and Cross-Claim, filed Jun. 3, 2009, ¶ 5 10 Defendants Erwin, Provenzano, and Insite's Answer with New Matter and Cross Claims at ¶ 16 " Defendant Neiswonger's Motion for Partial Summary Judgment, filed Apr. 20, 2011, ¶ 5 '' Defendant Neiswonger's Motion for Partial Summary Judgment at ¶ 7 3 wasted time and resources on the part of both the litigants and the court in cases where a trial would be a useless formality. Liles v. Balmer, 567 A.2d 691, 692 (Pa. Super. 1989). Section 8311 of the Judicial Code of Pennsylvania provides, in relevant part, as follows: (a) GENERAL RULE.--In lieu of all other damages or civil remedies provided by law, a person who cuts or removes the timber of another person without the consent of that person shall be liable to that person in a civil action for an amount of damages equal to: (1) the usual and customary costs of establishing the value of the timber cut or removed and of complying with the erosion and sedimentation control regulations contained in 25 Pa. Code Ch. 102 (relating to erosion control); (1.1) the cost of any surveys obtained in connection with the civil action; and (2) one of the following: (i) three times the market value of the timber cut or removed if the act is determined to have been deliberate, (ii) two times the market value of the timber cut or removed if the act is determined to have been negligent; or (iii) the market value of the timber cut or removed if the defendant is determined to have had a reasonable basis for believing that the land on which the act was committed was his or that of the person in whose service or by whose direction the act was done. 42 Pa.C.S.A. § 8311. (Emphasis added) The statute defines "Timber" as "Standing trees, logs or parts of trees that are commonly merchandised as wood products." "Market value" is defined as "The value of the standing timber as local market prices for the species and quality of timber cut or removed at the time it was cut or removed." 42 Pa.C.S.A. § 8311(c). Defendants cite the case of Christian v. Yanoviak, 945 A.2d 220 (Pa. Super. 2008) to argue that the trees removed in the present case do not constitute "timber" as it is defined under 4 42 Pa.C.S.A § 831 1.13 In the Christian case, the Defendant cut down 13 mature trees from the plaintiffs' residential property and sold these trees for timber for $2,200.00. Id. at 223, 224. In applying Christian to the case at bar, it is important to understand the specific requests each party was making to the Court. Unlike this case, it was the Defendant Yanoviak, the person who had cut down the thirteen trees, who was asking the Court to declare, pursuant to his Motion in Limine, that the trees removed from the Plaintiffs' property were "timber" and that the damages were limited and restricted to the parameters set forth in 42 Pa.C.S.A. §8311. Again, upon close analysis of the facts reported in Christian, the removal of the trees was done after the Defendant had performed a survey of the land. In short, the trees were mistakenly identified as being on the Defendant's property. Id. at 223. Given the agreement of the parties that the value of the 13 trees cut down and sold by the Defendant was $2,200.00, it was only common sense that the Defendant wanted the provisions of 42 Pa.C.S.A. §831 l(a)(2)(111) to control. In such a case, under §8311(a)(2)(iii), the timber would be valued at its market price because the Defendant had a reasonable base for believing that the land was his. Hence the Defendant would minimize the damages he would owe the Plaintiff. In Christian it was the Plaintiff landowners who were the ones who were requesting that damages be determined by deciding whether the land was reparable or irreparable under the holding of Slappo v. J's Development Associates Inc., 791 A.2d 409 (Pa.Super. 2002). In their complaint, the Plaintiffs made no reference to "timber" but stated that the trees that had been removed were "mature trees which shielded their home from the site, noise and pollution of the turnpike." In short, the requests of the parties in Christian were directly opposite of the requests of the parties in this case. 13 Defendant Neiswonger's Brief in Support of Motion for Partial Summary Judgment, p. 2-3; Defendants Erwin, Provenzano, and Insite's Brief in Support of Motion for Partial Summary Judgment, p. 2 After an evidentiary hearing regarding the issue, the court in Christian determined that the trees were not "timber" because the plaintiffs did not intend to harvest them for commercial use. Id. at 226. The Court stated that "although the trees removed from the appellee's property were merchandised as wood products" and therefore would meet the definition of the term "timber" in §8311, the Plaintiffs were not intending to harvest the trees for sale as wood products. Rather the Christian Court reasoned that the value of the trees was in the natural sound and visible barrier they provided between their home and the Pennsylvania Turnpike. Id. at 226. Having determined that 42 Pa.C.S.A § 8311 did not apply, the Christian court relied on the standard set forth in Slappo v. J's Development Associates Inc., 791 A.2d 409 (Pa. Super. 2002). Christian 945 A.2d at 226. The standard in Slappo provides as follows: Assuming the land is reparable, the measure of damage is the lesser of: (1) the cost to repair, or (2) the market value of the damaged property (before it suffered the damage, of course). If the land is not reparable, the measure of damage is the decline in market value as a result of the harm. Slappo, 791 A.2d at 415. The court in Christian determined that the plaintiffs' land was not reparable because some of the trees that had been removed were at least 70 feet tall and more than 100 years old. Christian, 945 A.2d at 226. The Christian court cited testimony in its reasoning that indicated newly planted trees would have taken several decades to become full grown. Id. at 226. Therefore, the Christian court concluded that the proper measure of damages was the decline in market value as a result of the harm to the plaintiffs' property. Id. at 226. This is exactly what the Plaintiffs had requested. 6 Here it is the Defendants who assert that the proper measure of damages in the present case is the decline in market value of Plaintiffs' property because the trees removed do not constitute "timber" under 42 Pa.C.S.A. § 8311 and Plaintiffs' land is not reparable. 14 However, Plaintiffs maintain that, although they reside upon the property involved, there is nothing to indicate that the trees removed were not marketable timber. 15 Unlike the evidence in the Christian case, the evidence in this case has not been heard. Currently, it is unclear what Plaintiffs' intentions are with regard to the trees removed. The trees in the Christian case were serving the very specific purpose of providing a barrier between the plaintiffs' home and the Turnpike and that having such a barrier enhanced the value of Plaintiffs' home and property. The purpose of the trees in the present case has not yet been determined. In examining the Plaintiffs' complaint, it appears that the Plaintiffs' property is over seven acres (see Exhibit A of Complaint). Such a large area could support selective timbering. The Arborist's report, at Exhibit C of the complaint, indicates that 25 trees were removed from the property some of which were black walnut and white ash. The Court recognizes that these are valuable hard woods. Again, this is a substantial piece of property, and without hearing it cannot be said that a "timber" harvest could not be completed on the property. However, the Arborist by using the "cost of cure method" seems to be indicating that the property is reparable by having debris removed and new trees planted. The total value of this "cure" work is estimated at $48,450.00. The Plaintiffs' complaint then multiplies this number by 3 claiming that removal of the trees was a deliberate and intentional act by the Defendants requiring the payment of treble damages in the amount of $145,950.00. Again, without the benefit of any factual hearing, it would appear that the Plaintiffs cannot legally request repair of 14 Defendant Neiswonger's Brief in Support of Motion for Partial Summary Judgment, p. 5; Defendants Erwin, Provenzano and Insite's Brief in Support of Motion for Partial Summary Judgment, p. 3 15 Plaintiffs' Memorandum Opposing Motions for Summary Judgment Filed by All Defendants their property while at the same time claiming the benefit of the treble damages provision of §831l(a)(2)(1) which applies to deliberate conversion of timber. The damage system utilized in §8311(2) is based on the (market value of the timber) which is specifically defined as the value of this standing timber at local market prices. Consequently, under the language of the statute the Defendant cannot substitute cost of repair and use that figure to then utilize the treble damages provision found in §8311(2)(1) rather than the "market value of the timber cut or removed." Even if the Court found that the trees removed in this case were not marketable timber, applying the standard set forth in the Slappo case would still require additional evidence. For example, the question of whether the land is reparable under Slappo cannot be answered until the court evaluates the available means of repairing the land. Additionally, Defendants also seem to be raising questions regarding the correctness of the Plaintiffs deed and the affect that the Hampden Township Sewer Easement had on the reasonableness of the Defendants' actions in removing the trees. Specifically under §8311(a)(2)(iii), there is a possibility that the Defendants may prove that they were reasonable in their belief that they were not trespassing on the Plaintiffs land. In short, numerous genuine issues of material fact exist as to whether the trees removed in this case constitute "timber" as it is defined under 42 Pa.C.S.A. §8311 and what is the proper method of assessing damages. While it is possible that the Court may eventually conclude that the trees removed in this case do not constitute "timber", it would be premature to make that decision before all of the evidence has been heard. At this stage, there are simply multiple theories for damages in this case and Partial Summary Judgment as to damages is not appropriate based on this record. 8 Accordingly, the following Order shall be entered: AND NOW, this 8th day of July, 2011, upon consideration of Defendants' Motions for Partial Summary Judgment, after argument, and consideration of the briefs submitted by the parties, IT IS HEREBY ORDERED AND DIRECTED that Defendants' Motions for Partial Summary Judgment are DENIED. By the Court, 11%? M. L. Ebert, Jr., J. Robert Radebach, Esquire Attorney for Plaintiffs 912 North River Road Halifax, PA 17032 Jeffrey B. Rettig, Esquire Andrew P. Dollman, Esquire Attorneys for Defendants Donald H. Erwin and Patricia A. Provenzano and Insite Development, LLC 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Kevin C. McNamara, Esquire Jeffrey M. McCormick, Esquire Attorneys for Defendant Neiswonger Construction, Inc. Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 9 Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Plaintiffs 1L,EL., O FiCL THE PRO i HOMO TAR T OI4SEP -3 PMI?:5 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FRANK E. LENTZ, III and CHERYL F. LENTZ, Plaintiffs : CIVIL ACTION - LAW v. DONALD H. ERWIN and : NO. 2008-06880 PATRICIA A. PROVENZANO, and INSITE DEVELOPMENT, LLC and : JURY TRIAL DEMANDED NEISWONGER CONSTRUCTION, INC., Defendants : PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the action above captioned as discontinued. Date: Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Plaintiffs