HomeMy WebLinkAbout09-4647BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney I.D. #19524
By: Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
V.
No. O 9- S/ G q 7
JASON W. and REBECCA L. BERGEY
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 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND
OUT WHERE YOU CAN GET LEGAL HELP.
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
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
BLAKINGER, BYLER & THOMAS, P.C.
BY: G >?.?17f'1yf,(L.
U Tames H. Thomas, Esquire
Attorney I.D. #19524
Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
Of Counsel:
Ronald J. Reybitz, Senior Counsel
Attorney I.D. #78863
PPL Utilities Corporation
2 North 9 h Street (GENTW3)
Allentown, PA 18101
2
BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney I.D. #19524
By: Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
V.
No. 0 '1 - ?fL ?7 Cum.!
JASON W. AND REBECCA L. BERGEY
Defendants
COMPLAINT
Plaintiff, PPL Electric Utilities Corporation, by and through its attorneys, Blakinger, Byler
& Thomas, P.C., hereby files this Complaint, and in support thereof, avers as follows:
1. Plaintiff is PPL Electric Utilities Corporation ("PPL"), a registered Pennsylvania
business corporation with offices located at 2 N. 9th Street, Allentown, Pennsylvania 18101.
2. PPL is the successor in interest to Pennsylvania Power & Light Company.
3. Defendants are Jason W. and Rebecca L. Bergey, husband and wife, 79 Green Ridge
Road, Mechanicsburg, Pennsylvania 17055.
4. On November 28, 1966, PPL entered into an agreement for a utility easement with
Elva M. Mumma, which is recorded at the Cumberland County Office of Recorder of Deeds in Book
178, Page 396. A true and correct copy of the Easement Agreement is attached hereto and
incorporated herein as Exhibit "A."
5. The Easement Agreement provides, in pertinent part:
That I, Elva M. Mumma... irrevocably grant and convey unto the said
PENNSYLVANIA POWER & LIGHT COMPANY, its successors and assigns, the
right to construct, operate and maintain, and from time to time to reconstruct its
electric lines, including such poles, towers, cables and wires above and under the
surface of the ground, fixtures and apparatus as may be from time to time necessary
for the convenient transaction of the business of the said Company, its successors and
assigns, upon, across, over under and along a strip of land 70 feet in width, said strip
bring a part of the property which I own, or in which I have any interest in the
Township of Silver Spring, County of Cumberland, Commonwealth of Pennsylvania,
and upon, across, over, under and along the roads, streets and highways adjoining the
said property, as shown on the plan hereto attached and made a part hereof, including
the right of ingress and egress to and from the said lines at all times for any of the
purposes aforesaid...
6. The Easement Agreement further provides:
I do hereby covenant and agree for myself and my heirs, executors, administrators
and assigns, to and with the said PENNSYLVANIA POWER & LIGHT
COMPANY, its successors and assigns, that no house, barn or other structure, or
inflammable or explosive materials of any kind, shall be built or stored on said strip
of land, that the said Company, its successors and assigns, shall not be limited in its
or their enjoyment of the rights hereby granted to such electric lines, poles, towers,
wires, cables, fixtures and apparatus as may be first constructed on said strip of land,
but that the said Company, its successors and assigns, shall have, at all times in the
future, the right to construct, operate and maintain, and from time to time to
reconstruct additional electric lines, poles, towers, wires, cables, fixtures and
apparatus upon, across, over, under or along the said strip of land.
7. Defendants are the current owners of the property burdened by the utility easement
granted to PPL.
8. The utility easement has not been terminated.
2
9. Reconstruction of the transmission lines located within the strip of land identified in
the utility easement is currently required to maintain reliable service to electric service customers
in this area due to the line reaching its capacity limit.
10. PPL has begun reconstruction of the transmission line located within the Utility
Easement which project is referred to by PPL as its Cumberland-Wertzville 69KV Rebuild.
11. PPL anticipates that construction will be complete by November of 2009.
12. Defendants are obstructing PPL's ingress and egress to the transmission lines by
parking numerous vehicles in the access route to the transmission line.
13. Defendants' actions have or will result in the deprivation of PPL's enjoyment of the
rights granted to it by the utility easement.
14. Unless Defendants are enjoined and restrained from obstructing PPL's access to the
transmission lines, PPL will suffer immediate, substantial and irreparable harm in following respects:
A. PPL will incur significant costs in locating and clearing an alternate access
route to the transmission line, including but not limited to costs associated with construction crews
and equipment having to sit idle; and
B. PPL will suffer significant delay in locating and clearing an alternate access
route to the transmission line.
15. Creation of an alternate access route will also cause significant damage to the land,
specifically in the removal of numerous trees.
16. The issuance of an injunction is reasonably suited to abate Defendants' wrongful acts.
17. The issuance of an injunction will not cause undue inconvenience or loss to
Defendant but will prevent irreparable injury to PPL.
18. PPL has no adequate remedy at law to redress the harm and injury that will be caused
by Defendants' unlawful and unauthorized actions.
WHEREFORE, Plaintiff PPL Corporation respectfully requests this Honorable Court issue
an Order enjoining Defendants from obstructing Plaintiffs access to the transmission line and
awarding such other relief as the Court deems just and proper.
BLAKINGER, BYLER & THOMAS, P.C.
Date: 7-/3 -DI By: 4 art
J s H. Thomas, Esquire
orney I.D. #19524
Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
Attorneys for Plaintiff/Petitioner
Of Counsel:
Ronald J. Reybitz, Senior Counsel
Attorney I.D. #78863
PPL Utilities Corporation
2 North 9t' Street (GENTW3)
Allentown, PA 18101
4
VERIFICATION
I, Michael S. Wukitsch, Project Leader for PPL ELECTRIC UTILITIES
CORPORATION, do hereby swear that I am authorized to make this Verification on
behalf of PPL ELECTRIC UTILITIES CORPORATION, and I verify the foregoing
document is true and correct to the best of my information, knowledge and belief. I
understand that false statements herein are made subject to the Rules of 18 Pa. C.S.
§4904 relating to unsworn falsification to authorities.
Date Michael S. Wukitsch
Project Leader
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing Complaint upon the persons and in
the manner indicated below which service satisfies the requirements of the Pennsylvania Rules of
Civil Procedure:
Service by ELECTRONIC MAIL AND FIRST CLASS MAIL addressed as follows:
Michael E. Furey, Esquire
Furey & Baldassari, P.C.
1043 S. Park Avenue
Norristown, PA 19403
mike.fandb@comcast.net
BLAKINGER, BYLER & THOMAS, P.C.
Date: 7-/3 W By: r-m4w
&omey omas, Esquire
#19524
Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
Attorneys for Plaintiff/Petitioner
(Page 1 of 13)
??s?..FOnw sora.w e e i -sal ?
WEST SHORE-CARISSIE TN LTNS'
Anoku ate lien by tbege Vroento, Ttiat__I, Alva nl__Mt,t ? a_via -?
-_oF 314 S?_Njk3,A Street.Meehanieshu peartsRlvaaia_ _----
in consideration of the sum of One Dollar ($1.00) to paid,att the.date -hereof by PENNSYLVANIA n
POWER & LIGHT COMPANY, the receipt whereof is hereby acknowledged,,. and in consideration of the Further i?
s.. of __Xk4!Y=1LX_JiqRdzed Dollars
to be paid to when the rights hereby granted are exercised by the said Company, do hereby, for
heirs, executors, administrators and assigns, irrevocably grant and convey unto the said
PENNSYLVANIA POWER & LIGHT COMPANY, its successors and assigns, the right to construct, operate and r?rr?Z
maintain, and fromItime to time to reconstruct its electric lines, including such poke, towers, cables and wires above
and under the surface of the ground, fixtures and apparatus as may be from time to time necessary for the convenient J
transaction of the, business of the said Company, its successors and assigns, upon, across, over, under and along a strip
of land -.-_ ??--. feet in width, said strip being a part of the property which ------ .:.:._.___._. own, or in which
----_-.-__.L?.--- have any interest in the -------___T_QS4U3h},LL__.-------------.------- of v
------.---------- Silver_Spriag_-------_-_- County of --._. Cumberland ----------+
Commonwealth of Pennsylvania, and upon, across, over, under and along the roads, streets and highways adjoining the
said property, as shown on the plan hereto. attached and made a part hereof, including the right of ingress and egress
q, to and from the said lines at all tunes for any of the purposes aforesaid, together with the right to. set and maintain the
pb? necessary guy and brace poles or towers and anchors, and to attach thereto the necessary guy wires; also the right to
cut down, trim, remove, and to keep cut down and trimmed by mechanical means or otherwise, any and all trees,
brush or other undergrowth on said strip of land or adjoining the same which in the judgment of the said Company,
its successors and assigns, may at any time interfere with the construction, reconstruction, maintenance or operation
of the said electric lines, poles, towers, wires, cables or other fixtures and apparatus, or menace the same, and in con-
nection therewith, the right to remove, if necessary, the root systems of said trees, brush or other undergrowth, and to
spray said brush and undergrowth with chemicals for their removal and control; and I. consideration of the said pay.
ments do hereby release and quitclaim the said PENNSYLVANIA POWER & LIGHT COMPANY, its successors
and assigns, of and from any and all damages, loss or injury that may be at any time caused by or result from the con-
struction, reconstruction, operation and maintenance of the said electric lines, or the cutting down, trimming or removal
of any and all trees, brush or other undergrowth on said premises.
And, further, in consideration of said payments, do hereby covenant and agree for miseIf--
and heirs, executers, administrators and assigns, to and with the said PENNSYLVANIA
POWER & LIGHT COMPANY, in successors. and assigns, that no house, barn or other structure, or inflammable or
explosive materials of any kind, shall be built or stored on said strip of land, and that the said Company, its successors
and assigns, shall not be limited in its or their enjoyment of the rights hereby granted to such electric lines, poles, towers,
wires, cables, fixtures and apj'iaratus as may be first constructed on said strip of land, but that the said Company, its suc-
cessors and assigns, shall have, at all times in the future, the right to construct, operate and maintain, and from time to
3 time to reconstruct additional electric lines, poles, towers, wires, cables, fixtures and apparatus upon, across, over, under
or along the said strip of land. The line constructed shall be a single pole line. Any and all
43alAgga?gltaed?Q-grog§?_g£a}t?-fences Q; OheLw?.Se 4kr1,11g ?o-q$-}?gCt3,47L.ind..miinY.Cnaace of
SDJtLli0?5_?h1?tS_?ai<d for. by-aaatid Ccompa, at a fgk?_mgk4t vA]YG_An0.?tatthSS.?he ground
ShalLbLrtStDLCd to its -oxiginal condition aa nearly-yy-pogg lei-_?.L3S_F-+her -derstood
ti aFIQ fBEgeQ.ilt?t_t11C3.381it4-llgr?llg3??tea3tF5_iLl LQg-3Rd_4fl SY_AtRt3Lan brae as the
e_veaL..th2t said-facilities are -McMnved_from rapEZ1y,...Shea_.after:.2 period..af__oae_41). year
the sights herein anted shall ease and tg=min.&t Ad..Allsighta_in_.th"a em t_.atea will
rexezt_to..She__gzeaYar,--.his_s>LCCasser'saand, as83gus_-.-rn.the_xveat?.the_abattcsefesced_to sum
is-.nat.-paid_.or_.. tendered-hy ar nlen '
-?yyyi?na?W?rrar.?She..date-hereaf,.lha.tasement and
ri heraia.graaSed-shallrstithnnt fnr{her.acL.hy?he partie?herntn,.cease$nddetermine
,
an Jyther part sh 1 ave an ftl;ther obl'gation to h her pa ty by reas n e eof.
¢Bltttltfi6_.-_?t__-end and seal ttss --? o-? day olt QY..
Si ed sealed and delivered in the presence of:
bfGcR?LL. -----.(SEAL)
-- -- - --- (SEAL)
School pi:},?ym??. Pam -- (SEAL)
--
??l? - -- - :
_. %
-----._CSEAL)
- - - - - - -- ---- --- - - ---(SEAL)
q / EFR , Oa. Olat. W. AI1,
teibe 1 j9J6 L., SYLVA IA POWER & LIGHT COMPANY the sum of
_ - Dollars,
in full payment of the further consideration above mentioned. ^
BOOK 178 PAGE 31.6 /Y -/i.A :r i ruvLt.Yn
COMMONWEALTH Or PRNNSYLVANIA- '
wealth aforesaid, commissioned for and reading in the r?Wti3.y'....._..:...... of _.'!:
COIINONWE day and year off
1 .
_ ALTi! Or PENNSYLVANIA
1•
IM
On thin g............ day of ./.;vd.. ??.. 4"r2....' •...... 19 beforeyi6,.a Notary Public for the Common-
cam;..!q._....
Conut ofOVT¢prylv.i3
y . the above sawed.L(!p M. afllRlX1a a
?A5. .. _ _,
..??,
the foregoing Instrument to be act and deed, and desired t/hme to Se recos vhch'? .+??,
Ittlt6lii my hand and notarial seal the
ye d€af ? r" 1 ? °
My commission
t=
................................................ _.._...... ...... .............. ._........_.. .
Notary Public
My commission expires
COMMONWEALTH OF PENNSYLVANIA
COUNTY or .........._ .............. _........ ...... _...... ...__ ??A. .
0n this . _ _........ __ day of 111111 19 .__.., before me, 'a Notary Public for 9-ke Commun-
wealth aforesaid, commissioned for and residing in the ._........_.._......
Conuty of , came the above named _.... _....._......
.._....,._._......._ .`::.
...........
_.. ,
..... ...._..... and gcknoWledg?d
the foregoing instrument to be ... act and deed, and desired the same to be regocded ai-puch.
Wittttgg my hand and notarial seal the day and year aforesaid.
Cr.
...................... ..._...... .................... .......................... _..... ..... .........
..
Notary Public
)fy commission expires
itteorbtb in the Office for Recording of goof Deeds in and for UDC -
I C14
in Book J79 Page j 94 ?,etetc.
WITNESS my hand and seal of Office this day of - g7
N ?
.. `•? ' V it r .
_ si a J 1
Recorder
eooK .':2t 8 PAGE
,Y
a
V4. M. VOGeLSONG
ROBERT R . MUMMF.
ELVA M . NNUMMA
IL W CST 6?Aolkz.- CA/t?\ S\.E it NE
?wE'3?' SF{ORC-N?\?..LERSBIJR?o `tNE
-N 4Zo SOS
m 5 5* S3' S3'¢ -Sea"
?RX. 11
If -I
O
C
d
3
• .C
C7
? a ?I
.. o
W p
Q r0
m Lo
J I
c ? Oz
= a m
U W > 1
\
p 7?
a G
a
N
U
E R 148371
o. s . F?ORM?AN
WE}T y~p0.E
13•L
GVE'ST SNORE-CKRL/5LE 1?3 ZIAIE
PLAN . SHOWINGEELE TR CE LI NEL RIGHT OF WAY OVER PROPERTY OF
ROBERT R. MUMMA AND ELVA M. MUMMA
SILVER SPRING TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA
Scale _ 400 TT Date 4/21/67
APPROVED PENNSYLVANIA POWER 8 LIGHT TRCOMPANY ?ER
ALLENTOWN, PENNSYLVANIA
-33.2- LA-75652-0
J,NF--c Cf?Eli
COND??G• -? ... -`
FILF .,.
GF 7hE l'i
2009 AIL 13 F4-1 i -'
t 7FSO
ck
yet'.
AMH 523102.1 ( 27522.002 ) 7/13/09
BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney I.D. #19524
By: Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
V.
No. a9- 44y-7
JASON W. BERGEY and REBECCA L.
BERGEY
Defendants
PETITION FOR PRELINUNARY INJUNCTION
TO THE HONORABLE, THE JUDGES OF THE SAID COURT. PPL Electric Utilities
Corporation, the Plaintiff herein, by its attorneys, Blakinger, Byler & Thomas, P.C., requests the Court
to issue a Preliminary Injunction pursuant to PA.R.C.P.1531 and in support thereof alleges as follows:
1. Plaintiff is PPL Electric Utilities Corporation ("PPL"), a registered Pennsylvania
business corporation with offices located at 2 N. 9th Street, Allentown, Pennsylvania 18101.
2. PPL is the successor in interest to Pennsylvania Power & Light Company.
3. Defendants are Jason W. and Rebecca L. Bergey, husband and wife, 79 Green Ridge
Road, Mechanicsburg, Pennsylvania 17055 ("Defendants").
4. PPL has brought its Complaint and seeks this Preliminary Injunction Relief to enjoin
the obstruction of a Utility Easement which grants PPL certain rights with respect to Defendants'
property.
AMH 523102.1 ( 27522.002 ) 7/13/09
5. As is more fully set forth in the verified Complaint attached hereto as Exhibit "A," this
claim arises out of a Utility Easement between PPL and Defendants' predecessor in interest, which
PPL believes and hereby avers is being violated by Defendants.
6. PPL has begun reconstruction of the transmission line located within the Utility
Easement which project is referred to by PPL as its Cumberland-Wertzville 69KV Rebuild.
7. PPL anticipates that construction will be complete by November of 2009.
8. Defendants are obstructing PPL's ingress and egress to the transmission lines by
parking vehicles in or otherwise blocking the access route to the transmission line.
9. Defendants' actions have or will result in the deprivation of PPL's rights granted to it
by the Utility Easement.
10. Unless Defendants are effectively enjoined and restrained from obstructing PPL's
access to the transmission lines, PPL will suffer immediate, substantial and irreparable harm in
following respects:
A. PPL will incur significant costs in locating and clearing an alternate access route
to the transmission line including but not limited to costs associated with construction crews and
equipment having to sit idle; and
B. PPL will suffer significant delay in locating and clearing an alternate access
route to the transmission line.
11. Creation of an alternate access route will also cause significant damage to the land,
including excavation and the removal of trees.
12. The issuance of an injunction is reasonably suited to abate Defendants' wrongful acts.
13. The issuance of an injunction will not cause undue inconvenience or loss to Defendant
but will prevent irreparable injury to PPL.
2
AMH 523102.1 ( 27522.002) 7113109
14. PPL has no adequate remedy at law to redress the harm and injury that will be caused
by Defendants' unlawful and unauthorized actions.
15. PPL believes and that it is likely to succeed on the merits of its claim and that its rights
are enforceable in equity and it will be entitled, upon a final hearing, to a permanent injunction against
Defendants and the other relief requested in the Complaint.
WHEREFORE, PPL Electric Utilities Corporation requests this Honorable Court to:
A. issue an Injunction against Jason W. and Rebecca L. Bergey,
enjoining their continuing obstruction of the Utility Easement; and
B. after a hearing, issue a Preliminary injunction enjoining Jason W. and
Rebecca L. Bergey from obstructing the Utility Easement during the rebuilding of the
Cumberland-Wertzville 69KV line and thereafter.
Respectfully submitted,
BLAKINGER, BYLER & THOMAS, P. C.
Date: 7-/3'd By: '
J es H. T
70mey homas, Esquire
I.D. #19524
Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
Attorneys for Plaintiff/Petitioner
Of Counsel:
Ronald J. Reybitz, Senior Counsel
Attorney I.D. #78863
PPL Utilities Corporation
2 North 9t' Street (GENTW3)
Allentown, PA 18101
3
VERIFICATION
I, Michael S. Wukitsch, Project Leader for PPL ELECTRIC UTILITIES
CORPORATION, do hereby swear that I am authorized to make this Verification on
behalf of PPL ELECTRIC UTILITIES CORPORATION, and I verify the foregoing
document is true and correct to the best of my information, knowledge and belief. I
understand that false statements herein are made subject to the Rules of 18 Pa. C.S.
§4904 relating to unworn falsification to authorities.
71i3/o 9 Z
Date Michael S. Wukitsch
Project Leader
AMH 523102.1 ( 27522.002) 7/13/09
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing Petition for Preliminary Injunction
upon the persons and in the manner indicated below which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure:
Service by ELECTRONIC MAIL AND FIRST CLASS MAIL addressed as follows:
Michael E. Furey, Esquire
Furey & Baldassari, P.C.
1043 S. Park Avenue
Norristown, PA 19403
mike.fandb@comcast.net
BLAKINGER, BYLER & THOMAS, P.C.
Date: 1 13 ?d ?f By: /J??7 i.4tf-Uaw
s H. Thomas, Esquire
Altorney I.D. #19524
Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
Attorneys for Plaintiff/Petitioner
4
xtsr IN-
2 `l
Cua ."I'l 13
?i
BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney I.D. #19524
By: Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
V.
No.
JASON W. AND REBECCA L. BERGEY
Defendants
COMPLAINT
Plaintiff, PPL Electric Utilities Corporation, by and through its attorneys, Blakinger, Byler
& Thomas, P.C., hereby files this Complaint, and in support thereof, avers as follows:
1. Plaintiff is PPL Electric Utilities Corporation ("PPL"), a registered Pennsylvania
business corporation with offices located at 2 N. 9th Street, Allentown, Pennsylvania 18101.
2. PPL is the successor in interest to Pennsylvania Power & Light Company.
3. Defendants are Jason W. and Rebecca L. Bergey, husband and wife, 79 Green Ridge
Road, Mechanicsburg, Pennsylvania 17055.
4. On November 28, 1966, PPL entered into an agreement for a utility easement with
Elva M. Mumma, which is recorded at the Cumberland County Office of Recorder of Deeds in Book
178, Page 396. A true and correct copy of the Easement Agreement is attached hereto and
incorporated herein as Exhibit "A."
5. The Easement Agreement provides, in pertinent part:
That I, Elva M. Mumma... irrevocably grant and convey unto the said
PENNSYLVANIA POWER & LIGHT COMPANY, its successors and assigns, the
right to construct, operate and maintain, and from time to time to reconstruct its
electric lines, including such poles, towers, cables and wires above and under the
surface of the ground, fixtures and apparatus as may be from time to time necessary
for the convenient transaction of the business- of the said Company, its successors and
assigns, upon, across, over under and along a strip of land 70 feet in width, said strip
bring a part of the property which I own, or in which I have any interest in the
Township of Silver Spring, County of Cumberland, Commonwealth of Pennsylvania,
and upon, across, over, under and along the roads, streets and highways adjoining the
said property, as shown on the plan hereto attached and made a part hereof, including
the right of ingress and egress to and from the said lines at all times for any of the
purposes aforesaid...
6. The Easement Agreement further provides:
I do hereby covenant and agree for myself and my heirs, executors, administrators
and assigns, to and with the said PENNSYLVANIA POWER & LIGHT
COMPANY, its successors and assigns, that no house, barn or other structure, or
inflammable or explosive materials of any kind, shall be built or stored on said strip
of land, that the said Company, its successors and assigns, shall not be limited in its
or their enjoyment of the rights hereby granted to such electric lines, poles, towers,
wires, cables, fixtures and apparatus as may be first constructed on said strip of land,
but that the said Company, its successors and assigns, shall have, at all times in the
future, the right to construct, operate and maintain, and from time to time to
reconstruct additional electric lines, poles, towers, wires, cables, fixtures and
apparatus upon, across, over, under or along the said strip of land.
7. Defendants are the current owners of the property burdened by the utility easement
granted to PPL.
8. The utility easement has not been terminated.
2
9. Reconstruction of the transmission lines located within the strip of land identified in
the utility easement is currently required to maintain reliable service to electric service customers
in this area due to the line reaching its capacity limit.
10. PPL has begun reconstruction of the transmission line located within the Utility
Easement which project is referred to by PPL as its Cumberland-Wertzville 69KV Rebuild.
11. PPL anticipates that construction will be complete by November of 2009.
12. Defendants are obstructing PPL's ingress and egress to the transmission lines by
parking numerous vehicles in the access route to the transmission line.
13. Defendants' actions have or will result in the deprivation of PPL's enjoyment of the
rights granted to it by the utility easement.
14. Unless Defendants are enjoined and restrained from obstructing PPL's access to the
transmission lines, PPL will suffer immediate, substantial and irreparable harm in following respects:
A. PPL will incur significant costs in locating and clearing an alternate access
route to the transmission line, including but not limited to costs associated with construction crews
and equipment having to sit idle; and
B. PPL will suffer significant delay in locating and clearing an alternate access
route to the transmission line.
15. Creation of an alternate access route will also cause significant damage to the land,
specifically in the removal of numerous trees.
16. The issuance of an injunction is reasonably suited to abate Defendants' wrongful acts.
17. The issuance of an injunction will not cause undue inconvenience or loss to
Defendant but will prevent irreparable injury to PPL.
18. PPL has no adequate remedy at law to redress the harm and injury that will be caused
by Defendants' unlawful and unauthorized actions.
WHEREFORE, Plaintiff PPL Corporation respectfully requests this Honorable Court issue
an Order enjoining Defendants from obstructing Plaintiffs access to the transmission line and
awarding such other relief as the Court deems just and proper.
BLAKINGER, BYLER & THOMAS, P.C.
Date: 7-/3 -09 By: C?rrka XL- "?
s'H. Thomas, Esquire
'AKorney I.D. #19524
Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
Attorneys for Plaintiff/Petitioner
Of Counsel:
Ronald J. Reybitz, Senior Counsel
Attorney I.D. #78863
PPL Utilities Corporation
2 North 9t' Street (GENTW3)
Allentown, PA 18101
4
VERIFICATION
I, Michael S. Wukitsch, Project Leader for PPL ELECTRIC UTILITIES
CORPORATION, do hereby swear that I am authorized to make this Verification on
behalf of PPL ELECTRIC UTILITIES CORPORATION, and I verify the foregoing
document is true and correct to the best of my information, knowledge and belief. I
understand that false statements herein are made subject to the Rules of 18 Pa. C.S.
§4904 relating to unswom falsification to authorities.
Date Michael S. Wukitsch
Project Leader
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing Complaint upon the persons and in
the manner indicated below which service satisfies the requirements of the Pennsylvania Rules of
Civil Procedure:
Service by ELECTRONIC MAIL AND FIRST CLASS MAIL addressed as follows:
Michael E. Furey, Esquire
Furey & Baldassari, P.C.
1043 S. Park Avenue
Norristown, PA 19403
mike.fandb@comcast.net
BLAKINGER, BYLER & THOMAS, P.C.
Date: By: r?xAW .41 .4 4 PomeyI.D(#19524
. Thmas, Esquire
. Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
Attorneys for Plaintiff/Petitioner
EXHIBIT A
(Page 1 of 13)
Ki4,I0aM la>N Mp C I7yiI . .C •?^
`•r _ w= slimm-CARLIFiffi Tttt>it v- ia;r'
C•
_ •
S
knairl arf ten by tbeg;e Vre. emtc- That I, filva M. Mumma, a ttidow
b
?T
3
- of 314 B. M-jA, Stfeet. Kerh n ah .ra Ponnisylya=1s - p
?k
in consideration of the sum of One Dollar ($1.00) to paid aq the.date -hereof by -PENNSYLVANIA
POWER & LIGHT COMPANY, the receipt whereof is hereby acknowledged,, and in consideration.of the Further i?
sum of Tlairt unAred M.600-001 ?-- __ ^^llans ?1
to be paid to -az-_ when the rights hereby granted ate exercised by the said Company, do hereby, for
wself. my heirs, executors, administrators and assigns, irrevocably grant and convey unto the said M
PENNSYLVANFA.P.OWER & LIGHT COMPANY, its successors and assigns, the right to construct, operate and m Z
maintain, and Fr6m time to time to reconstruct its electric lines, including such poles, towers, cables and wires above
and under the surface of the ground, fixtures and apparatus as may be from time to time necessary for the convenient
transaction of the business of the said Company, its successors and assigns, upon, across, over, under and along a strip
of land -.__70 - feet in width, said strip being a part of the property which _.__.. .a.--_. own, or in which
_-•---.-I;,-- have any interest in the ___T Unship of
County of _ Cumberland
Commonwealth of Pennsylvania, and upon, across, over, under and along the roads, streets and highways adjoining the
said property, as shown on the plan herein. attached and made a part hereof, including the right of ingress and egress
to and from the said lines at all times for any of the purposes aforesaid, together wilt the right to. set and maintain the
necessary guy and brace poles or towers and anchors, and to attach thereto the necessary guy when; also the right to
cut down, trim, remove, and to keep cut down and trimmed by mechanical means or otberwhe, any and all trees,
brush or other undergrowth on said strip of land or adjoining the same which in the judgment of the said Company,
its successors and assigns, may at any time interfere with the construction, reconstruction, maintenance or operation
of the said electric -lines, poles, towers, wires, cables or other fixtures and apparatus, or menace the same, and in con-
nection therewith, the right to remove, if necessary, the toot systems of said trees, brush or other undergrowth, and to
spray said brush and undergrowth with chemicals for their removal and control; and in consideration of the said pay-
ments do hereby release and quitclaim the said PENNSYLVANIA POWER & LICHT COMPANY, its successors
and assigns, of and from any and all damages, loss or injury that may best any time caused by or result from the con-
struction, reconstruction, operation and maintenance of the-said electric lines, or the cutting down, trimming or removal
of arty and all trees, brush or other undergrowth on said premiers.
And, further, in consideration of said payments, 7 do hereby covenant and agree for myself
and heirs, executors, adminismators and assigns, to and with the said PENNSYLVANIA
POWER & LIGHT COMPANY, its successors, and assigns, that no house, barn or other structure, or inflammable or
explosive materials of any kind, shall be built or stored on said strip of land, and that the said Company, its successors
and assigns, shall not be limited in its or their enjoyment of the rights hereby granted to such electric lines, poles, towers,
wires, cables, fixtures and a4itatus as may be first constructed on said strip of land, but that the said Company, its suc-
cessors and assigns, shall have, at all tithes in the future, the right to construct, operate and maintain, and from time to
time to reeonumet additional electric lines, poles, tower, wires, cables, fixtures and apparatus upon, across, over, under
or along the said strip of land. The line constructed shall be a single pole line. Any and all
4.a7 gu c;gSl3l'-d r312$?. I.I??.Cl?ea-4LR L4' ti'.?S1rj,L18Srffi$.taLtiS'itij.t)?38bLmaintensnt:e of
said-li Si shall he oaidAor by-;aJSoq=y-at a fa3. marLtutt?lue-and furthez-Ahr ground
ahall_h rre{pCd to its original eonditinn as nearu aATnsal}fip_-It is f-th- mderstood
aM argggQ-that_ttll...L.Jgh ?hlTSin granted are in_i o ?a{tQ eff t until sac t± tiw as the
e:MnL=hat mid fg iL1i-??e srp rpmnvpd__f_,rr cam nLpp .AXt;T,,_shtn_aftpr' a pert nd o nniyear
the-rights: h r n mated shall cease and ty,=ptiA:R?tR Ot1d al JghJa_Jn the ea-p_ment-Area will
LeVArt .tn_tho -grr"tor _- his aueceasors and. eagigne_ rn hr P rd-to sum
. aot..paid ac tendered _by Grantor vithin_onp (11 Ito- of the dot, h.-f rhe-Ass,ament and
*h her pa ty by rase a eof.
an they part s 1 awe any fyjrther obl'gation to
*1959 _. ?Zt_- hand and seal this . day of r_--_-
Si ed sealed std delivered in the presence of:
of
in full
the further consideration above mentioned.
BOOK 178 PACE M-16
--(SEAL)
.?_ (SEAL)
Sehoof Dist. Cutabr C, r -__-_- -_(SEAL)
__...___.--(SEAL)
as, 71 _(--y, --._CSEAL)
-(SEAL)
EYwt , Oa, OW. C.I. Ask
POWER & LIGHT COMPANY the sum of
_-_ ?? Dollars,
r - f
COMMONWEALTH Or P6NNBYLVAN IA.
BF ieRa//?
COUNTY OF ...(L.?G?._._.._..___-.__..._.: _. J
On this $_....__... day of ?IiVA !..Dk"t2....•.-_:.. 19 ?, before k, a Notary Public for the Oommoo-
n•ealth aforesaid, commiasibned fur and residing in the ti£1i1?!!°...._..:._ . of
/7.1t NT ie
County _.._...... ......:... cam. the.above named
_.._.__._._.._...._......... ........ ..._....... _ ..__.......... :_ ao
the foregoing, instrument to be .!1?' _... act uud deed, and desired the ' we to be'
ecd s,•'L
L '
1ilfihttlitl my hand and notarial seal the day and year of d. L
G V
-My commission expi
_.._..._.._..._....... ..._..................... .._... _...._..
Notary Public
My commission expires
COMIIONWZALTM or PENNITLYANIA
va:
COCVTY'OT
On this ._.._._._....._... day of ........................... ___ 19 ..._.., before mega Notary Public for c Commun-
r:ealth aforesaid, commissioned for and residing in the _...... _ ................... ....... ..___...._......_ of ...... ....... .._...
tr .._........... ...
'; 12
County of ._.__._.._................ _._......._._.._..._.........._...._..., came the above named _.___.._ ..................:..._...__..._._.._...._:.;.__.:..;..
r:.aa ?
_.._..._.r........__.___..._.._._.._.._....._........_..__..__...._......_.._..._....._._..._............__.._.........___._........._??. d.,jwwledgcd
the foregoing instrument to be act and deed, and desired the same to be regoMed an=iuch.
Witnesis my hand and notarial seal the day and year aforesaid. _• r^
Notary Public
My commission expires
3&ttorbtb in the Office for Recording of Deeds Ili and for
I. X. Book J7 g Page 39b emote. I/J =
WITNESS my hand and seal of Office this day of
Recorder
a'ooK ..'3:8 PACE ..??/
C aiiNah WaALTit or PXkKSYLVANIA _
,..
I ?
i
J•
>r
a
D`
W.H. VO6EL.SON6
4
v
c
v
a.
a
U
? a ?I
v
W
a I
?
m ?
I
o I v
?
J
S p ? 1
U uJ >
O
a
a,
e a
0
q
U
E R 148371
? RiJ?RT R . MI.3M?.hP.
'E?.VA M , MUN?MA
S. wGST %"ORE-CAIR,16? V m ?1NE
?. wE3T S410RC - N?\??.iLSPSURro ?.INE
N 42° SOO' SS"F.-
5' Sao-
P.Z, 11
f-TQ/w ?K
?/? J?N?T GREEK
coNO??' ... ...........
33.7.
0.5. DOORMAN
w?.,T gNpprc.
111E ST SHO2E- 0/9RL/5LE :3 ZlAtE
WEST SHORE-MILLERS,eURG UNG:
PLAN SHOWING ELECTRIC LINE RIGHT OF WAY OVER PROPERTY OF
ROBERT R. MUMMA AND ELVA M. MUMMA
I
SILVER SPRING TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA
Scale I"= 400 ?/ ? /J Tgp?ygDate 4/21??7
APPROVED /' Gt/ ilo?? DISTR%1 Wffl9 ft1pER
PENNSYLVANIA POWER a LIGHT COMPANY
ALLENTOWN, PENNSYLVANIA '
-33.2- L A-75652-0 i
• i
??
??
?r ?a
?,
c. u .. ,' *.. .. ,..
4.,??..
AMH 523318.1 (27522.002) 7/13/09
JUL 13 2009
BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney I.D. #19524
By: Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
V.
JASON W. BERGEY and REBECCA L.
BERGEY
Defendants
No. 09- 46 y7
ORDER
A hearing on the within Petition for Preliminary Injunction is hereby scheduled to be held
on the ?,o day of Qom;,, , 2009, at
f 00F
9'36 m /p.m. in Courtroom No. Y , of the Cumberland County Courthouse, One
Courthouse Square, Carlisle, Pennsylvania 17013.
BY THE COURT:
Tea ''lr'trY
?t
AMH 523318.1 ( 27522.002 ) 7113108
BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney I.D. #19524
By: Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
V. No. 1 ! t0
JASON W. BERGEY and REBECCA L.
BERGEY
Defendants
ORDER
A hearing on the within Petition for Preliminary Injunction i hereby scheduled to be held
on IN P% 1,000 , the day of 2009, at
?'S Z.,S?..1?WL-L.?;.:.k?.. ???r, w*.r ••tiwu...w„r*`
FUREY & BALDASSARI; P.C. y L { F [ 7 Y -,?? .. .: ^
1043 S. PARK AVENUE
AUDUBON, PA 19403t??} « ,._ +1 :+(+::?
Prothonotary
Cumberland County
1 Courthouse Square, 100
Carlisle, PA 17013
LIf11#11fill 111f11111101111itf1#IfJILfill flififI11LIMIII
FUREY & BALDASSARI, P.C.
ATTORNEYS AT LAW
1043 S. PARK AVENUE
AUDUBON, PA 19403
MICHAEL E. FUREY
JOSEPH J. BALDASSARI*
*also member NJ bar
July 21, 2009
Prothonotary
Cumberland County
1 Courthouse Square, Suite 100
Carlisle, PA 17013
RE: PPL Electric Utilities Corporation v.
Jason W. Bergey and Rebecca L. Bergey, No. 09-4647
Dear Sir/Madam:
(610) 666-7500
fax (610) 666-7200
I am in receipt of the enclosed Notice regarding PPL Electric Utilities Corporation v.
Jason W. Bergey and Rebecca L. Bergey, 09-4647. Please be advised that this firm has not been
retained to enter appearance for the Defendants in this regard and we have not entered
appearance.
Thank you.
Sincerely,
MICHAEL E. F Y
MEF/sr
cc: James H. Thomas, Esquire (w/enclosure)
Jason and Rebecca Bergey (w/enclosure)
Ronald Reybitz, Esquire (w/enclosure)
John McGuire, Esquire (w/enclosure)
Sheriffs Office of Cumberland County
R Thomas Kline
Sheriff FILE 0, HOE
?ww," of ?CuaNbr"44 ^yA?
JF THC C r;^?O)T ?Y
Ronny R Anderson
Chief Deputy 2009 JU 27 AIM 9- 26
Jody S Smith
Civil Process Sergeant orr!cE -,+s S+'-ERIFF
CUM J'
Edward L Schorpp .
PENNI` YL1!°' IIA
Solicitor
PPL Electric Utilites Corporation
vs. Case Number
Rebecca L. Bergey 2009-4647
SHERIFF'S RETURN OF SERVICE
07/23/2009 06:25 PM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on July 23,
2009 at 1825 hours, he served a true copy of the within Complaint and Notice, upon the within named
defendant, to wit: Jason W. Bergey, by making known unto himself personally, defendant at 79 Green
Ridge Road Mechancisburg, Cumberland County, Pennsylvania 17055 its contents and at the same time
handing to him personally the said true and correct copy of the same.
07/23/2009 06:25 PM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on July 23,
2009 at 1825 hours, he served a true copy of the within Complaint and Notice, upon the within named
defendant, to wit: Rebecca L. Bergey, by making known unto Jason Bergey, husband of defendant at 79
Green Ridge Road Mechancisburg, Cumberland County, Pennsylvania 17055 its contents and at the
same time handing to him personally the said true and correct copy of the same.
SHERIFF COST: $53.00
July 24, 2009
SO ANSWERS,
R THOMAS KLINE,
SMr
PPL ELECTRIC UTILITIES
CORPORATION,
Plaintiff
V
JASON W. BERGEY and
REBECCA L. BERGEY,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 09-4647 CIVIL TERM
IN RE: CONTINUED HEARING SCHEDULED
ORDER OF COURT
AND NOW, this 30th day of July, 2009, continued
hearing in this matter is set for Thursday, August 6, 2009,
at 10:00 a.m. The purpose of the continuance is to give the
defendant respondents the opportunity to confer with counsel
and to give them legal advice in the matter.
By the Court,
Kevi . Hess, J.
Zjames H. Thomas, Esquire
For Plaintiff
?/Rebecca L. Bergey, Pro se
79 Green Ridge Road
Mechanicsburg, PA 17055
bg
cop I '" M?; (' LL
7/a0/o9
LE/11
OF THE P,--,CiTP'? '0TARY
2009 JUL 30 Pi 0: 24
PPL ELECTRIC UTILITIES
CORPORATION,
Plaintiff
V.
JASON W. BERGEY and
REBECCA L. BERGEY,
Defendants.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2009 - 4647 CIVIL TERM
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: PPL Electric Utilities Corporation
c/o James H. Thomas, Esquire
Blakinger, Byler & Thomas, P.C.
28 Penn Square
Lancaster, PA 17603
You are hereby notified to file a written response to the enclosed Preliminary Objections
within twenty (20) days from service hereof or a judgment may be entered against you.
IRWIN & McKNIGHT, P.C.
V
Douglas Miller, Esquire
Supreme Court I.D. No. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendants
Date: August 5, 2009
PPL ELECTRIC UTILITIES
CORPORATION,
Plaintiff
V.
JASON W. BERGEY and
REBECCA L. BERGEY,
Defendants.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2009 - 4647 CIVIL TERM
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF DEFENDANTS
JASON W. BERGEY and REBECCA L. BERGEY
TO PLAINTIFF'S COMPLAINT
AND NOW this 5`h day of August, 2009, come the Defendants, JASON W. BERGEY
and REBECCA L. BERGEY, by and through their attorneys, Irwin & McKnight, P.C., and make
the following Preliminary Objections to Plaintiffs' Complaint, and in support thereof avers the
following:
I. Preliminary Objection for failure to Join a Necessary Party Pursuant to Pa.R.Civ.P.
1028(a)(5)
1. Plaintiff, PPL Electric Utilities Corporation, filed a civil Complaint and Petition
for Preliminary Injunction on or about July 13, 2009, against Defendants Jason W. Bergey and
Rebecca L. Bergey, asserting obstruction to a utility easement across the rear of Defendants'
property.
2. Plaintiff attached as Exhibit "A" to its Complaint a purported copy of an
Easement Agreement dated November 28, 1966 between Elva M. Mumma and Pennsylvania
Power & Light Complany.
3. Plaintiffs exhibit includes a partial map laying out the location of the seventy
(70) foot wide easement across the property then owned by Robert R. Mumma and Elva M.
Mumma.
4. Plaintiff's exhibit does not present, detail, or set forth any access road or path to
the seventy (70) foot wide utility easement.
5. Plaintiff further asserts in its Complaint that Elva M. Mumma is the predecessor
in interest to the Defendants, and that the easement agreement provides it with certain rights with
respect to the Defendants' property.
6. However, subsequent to November 28, 1966, the date indicated on the agreement
attached to the Plaintiff's Complaint, the son of Elva M. Mumma subdivided the burdened
property into two (2) lots.
7. By deed dated August 27, 1972, and recorded in Cumberland County Recorder of
Deeds Book "U," Volume 24, Page 359, Elva M. Mumma, widow, conveyed one-half of her
interest in the burdened real estate to her son, Robert R. Mumma.
8. The said son, Robert R. Mumma, caused the burdened land to be subdivided into
separate lots.
9. The first subdivision plan recorded in the Cumberland County Recorder of Deeds
Office in Plan Book 55, Page 79, created a new parcel of ground known as Lot No. A-1, and
numbered as 71 Green Ridge Road, Mechanicsburg.
10. A second subdivision plan of Robert R. Mumma recorded in the Cumberland
County Recorder of Deeds Office on or about January 23, 1989, in Plan Book 57, Page 92, added
additional land to the parcel of real estate known and numbered as 71 Green Ridge Road,
2
Mechanicsburg, PA. A true and correct copy of the recorded subdivision plan is attached hereto
and incorporated herein as Defendants' Exhibit "A."
11. Both of the recorded subdivision plans are public records and note the existence
of the prior seventy (70) foot wide utility easement running across the rear of all of the lots.
12. None of the recorded subdivision plans note, detail, or set forth any access road or
path to the seventy (70) foot wide utility easement crossing the land now owned by Defendants.
13. As neither the easement agreement, nor the subsequent public documents set forth
the presence or existence of any access road across the land now owned by Defendants, any
determination as to the extent of the easement attached to Plaintiffs Complaint requires that all
successors in interest to property owned by Elva M. Mumma and burdened by the utility
easement are necessary parties to the instant litigation.
14. Defendants therefore preliminarily object to the Complaint on the basis of
nonjoinder of necessary parties.
WHEREFORE, Defendants respectfully request that this Honorable Court dismiss the
Plaintiffs Complaint, or in the alternative direct the proper joinder of all necessary parties as
successors in interest to Elva M. Mumma.
II. Preliminary Objection in the Nature of a Demurrer Pursuant to Pa. R.Civ. P.
1028(a)(4)
15. The easement agreement and accompanying map attached to Plaintiffs
Complaint fail to note, detail, or set forth any access road or path to the seventy (70) foot wide
utility easement crossing the land now owned by Defendants.
3
16. In fact no such access road exists across the Defendants' land, nor, upon
information and belief, has such an access road been used by Plaintiff or its predecessors in
interest.
17. There is no assertion that Defendants have placed vehicles or otherwise
obstructed the utility easement itself.
18. Plaintiff in actuality seeks the declaration of a new access road, not the restraint of
obstruction of an existing access road.
WHEREFORE, Defendants respectfully request that this Honorable Court dismiss the
Plaintiff s Complaint.
Respectfully Submitted,
IRWIN & McKNIGHT, P.C.
By: - /k?L-
Douglas Miller, Esquire
Supreme Court ID # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Dated: August 5, 2009 Attorneys for Defendants
4
VERIFICATION
The foregoing document on behalf of the Defendants is based upon information which
has been gathered by counsel for the Defendants in the preparation of this document. The
statements made in this document are true and correct to the best of the counsel's knowledge,
information and belief. The Defendants' verification cannot be obtained within the time allowed
for filing the pleading. The undersigned is therefore verifying on behalf of the Defendants
according to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements
herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn
falsification to authorities.
X` AIL
ougl G. Miller, Esquire
Date: August 5, 2009
o .? s .. d ? ? , ?' yid, ?•, ??Yµ?+. ? ?\a^,a .
if,, > .' <4,y0 `a °° r3' _ /o Off/' ° a ^ & 3?C i a
?•
0 .0
P \i ?? O
°? sF Ry / 6r
a? J: B e w RT 7 CJ. L1 ~Oa a a?P
o r i. .a ? ?' a s 9 44r ? BP as
S s ? ? ? y N, is c-, i CBS F9 . 4. e
4 S M n :r h.f °
a E g A : 5? r N ?_ A
? n o m ,-
° z v G n m.•?n?.a D .yqR I ...
z m.1
00
e G ci 0 m a
g 00 p
, w w N r 6e
pp ? i ?M?1 ! o ?+
4. Jma A n C D Z d
CD _ s D i z r- /
war m 3 D Z ??_ ?,
P D O Z J A
e
e '* ? s
a? n ti a •? 3 8 ?- Z ? ? ., F 'fj s °u a°° o u
3"Mae N I :;I °• fb
? a t? vm°. m I e??
l $ ?? `I o
2
C m m ? o ?a? a / Cj m j/ /? ? ??? C~ a oya \
f+l , o ti( fn,? So Fr .Yn. I
r c, ?
4
m?r
oz
o'N
0
0
z
I
f
+ L
W+^
y
s _
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below both by facsimile and by first class
United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
James H. Thomas, Esquire
Blakinger, Byler & Thomas, P.C.
28 Penn Square
Lancaster, PA 17603
Attorney for Plaintiff
Date: August 5, 2009 IRWIN & McKNIGHT, P.C.
Douglas . Miller, Es uire
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendants
L'? 1 jay u
4
JHT:LFG 526112.1 ( 23318.011) 8/11/09
BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney I.D. #19524
By: Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
V.
No. 09-4647
JASON W. and REBECCA L. BERGEY
Defendants
PLAINTIFF PPL ELECTRIC UTILITIES CORPORATION'S ANSWER
TO DEFENDANTS' PRELIMINARY OBJECTIONS
PPL Electric Utilities Corporation, by and through its counsel, Blakinger, Byler & Thomas,
P.C. and James H. Thomas, Esquire, files this Answer to Defendants' Preliminary Objections.
I. JOINDER
1. Admitted.
2. Admitted.
3. Denied. Plaintiffs' exhibit includes a map laying-out the location of the 70-foot wide
easement across all of the property then owned by Robert R. Mumma and Elva M. Mumma.
4. Admitted that Plaintiff s exhibit does not present any access road or path to the 70-
foot wide utility easement. Denied that a depiction of an access road is necessary.
t f
JHT:LFG 526112.1 ( 23318.011 ) 8/11/09
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted that the recorded subdivision plans do not show any access road or path to
the easement. Denied that such depiction is necessary.
13. Denied. This allegation is a conclusion of law which is deemed denied.
14. No answer required.
WHEREFORE, Plaintiff respectfully requests that Defendants' Preliminary Objections be
dismissed.
II. DEMURRER
15. Admitted that the Easement Agreement and accompanying map attached to Plaintiff's
Complaint did not detail the access road to the 70-foot wide utility easement. Denied that such
depiction is necessary.
16. Denied as stated. Admitted that no access road has been opened on Defendants' land,
however, the Easement Agreement expressly grants Plaintiff "... the right of ingress and egress to
and from (the 70-foot wide utility easement) at all times" for any of the purposes set forth in the
Easement Agreement, including the right to reconstruct the electric lines.
17. Denied. To the contrary, Plaintiff has alleged in paragraph 12 of its Complaint that
2
JHT:IFG 526112.1 (23318.011 ) 8/11/09
Defendants are obstructing PPL's ingress and egress to the transmission lines by parking numerous
vehicles in the access route to the transmission line.
18. Denied. This allegation is a conclusion of law which is deemed denied. To the extent
that it is determined to be factual, the allegation is denied, and to the contrary, Plaintiff simply seeks
to assert its right as owner of an easement.
WHEREFORE, Plaintiffs respectfully request that Defendants' Preliminary Objections be
dismissed.
BLA"NGER, BYLER & THOMAS, P. C.
Date: ,F- !!-Oq By:
lrLr?Kct ,rrn
s H. Thomas, Esquire
Attorney I.D. #19524
Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
Attorneys for Plaintiff/Petitioner
Of Counsel:
Ronald J. Reybitz, Senior Counsel
Attorney I.D. #78863
PPL Utilities Corporation
2 North 9'' Street (GENTW3)
Allentown, PA 18101
3
. ti
JHT:LFG 526112.1 (23318.011 ) 8/11/09
VERIFICATION
I, ?riyn?3 L ??4 gs , verify that I am the Rt Vul eA-of PPL Electric
Utilities Corporation, and as such, I am authorized to make this Verification on its behalf, and I
verify that the foregoing is true and correct to the best of my knowledge, information and belief.
This Verification is subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification
to authorities.
PPL ELECTRIC UTILITIES CORPORATION
Dated: j By:
L
JHT:LFG 526112.1 ( 23318.011 ) 8/11/09
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing Plaintiff PPL Electric Utilities
Corporation's Answer to Defendants' Preliminary Objections upon the persons and in the manner
indicated below which service satisfies the requirements of the Pennsylvania Rules of Civil
Procedure:
Service by HAND DELIVERY as follows:
Douglas G. Miller, Esquire
Irwin & McKnight, P.C.
60 West Pomfret Street
Carlisle, PA 17013
BLAKINGER, BYLER & THOMAS, P.C.
Date: ?- fit- V q By: 0"U4- u-* aa-
tttoo esH. Thomas, Esquire
rney y I.D. #19524
28 Penn Square
Lancaster, PA 17603
Telephone: (717) 299-1100
Attorneys for Plaintiff
r4 J°/
^nll " i^ 9 `, I 44 r,
(a;U tI -J -J Y f i t, V f
r. ; ; Ty
-1 1
PPL ELECTRIC UTILITIES
CORPORATION,
Plaintiff
Vs.
JASON W. and REBECCA L.
BERGEY,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PEN]vSYLVANIA
CIVIL ACTION - LAW
NO. 09-4647 CIVIL
IN RE: PRELIMINARY INJUNCTION
BEFORE HESS, J.
ORDER
AND NOW, this IT day of August, 2009, the motion of the Plaintiff for preliminary
injunction is DENIED without prejudice to request further hearing following the Plaintiff's study
of alternatives to their proposed access to their 70-foot wide easement.
BY THE COURT,
James H. Thomas, Esquire
For the Plaintiff
,,/Douglas G. Miller, Esquire
For the Defendants
rlm
or Pic Ppn7t -l,) N,3rARY
2009 AUG 17 PH 12: G4;
PPL ELECTRIC UTILITIES
CORPORATION,
Plaintiff
vs.
JASON W. and REBECCA L.
BERGEY,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 09-4647 CIVIL
IN RE: PRELIMINARY INJUNCTION
BEFORE HESS, J.
OPINION AND ORDER
PPL ("Plaintiff') is in the middle of a major rebuilding project of the Cumberland-
Wertzville transmission line, necessitated by increased electrical demand by the approximately
7,000 homes this line serves. Part of the transmission line passes over a 70-foot wide easement
on the property of Jason and Rebecca Bergey ("Defendants" ).1 Similar easements exist on the
neighboring parcels of land, as they were subdivided from the same tract. To accommodate the
increased demand, Plaintiff is installing a heavier electrical cable, as well as additional poles to
support the extra weight. The construction project is estimated to end by November 2009.
Without the heavier cable, the 7,000 homes served by this transmission line will suffer rolling
blackouts.
James Blass, a right-of-way agent for Plaintiff, provided extensive testimony to the
company's procedures vis-a-vis property damage caused in the process of accessing its utility
1 The 1966 easement at issue here reads, in relevant part: "That I, Elva M. Mumma... irrevocably grant and convey
unto the said Pennsylvania Power & Light Company, its successors and assigns, the right to construct, operate and
maintain, and from time to time to reconstruct its electric lines, including such poles, towers, cables and wires above
and under the surface of the ground, fixtures and apparatus as may be from time to time necessary for the convenient
transaction of the business of the said Company... including the right of ingress and egress to and from the said lines
at all times for any of the purposes aforesaid."
NO. 09-4647 CIVIL
easements. Before any of Plaintiff's heavy equipment crosses over the land of another, it is
preceded by a small pickup truck with a camera mounted on board. The purpose of the camera is
to record video documenting the condition of the land prior to entry by Plaintiffs employees and
equipment. At the conclusion of construction, the video will enable Plaintiff to provide land
owners with adequate compensation to restore their land to pre-construction condition.
Defendants do not challenge the existence or validity of Plaintiffs '70 foot wide easement
passing along the edge their property. They do challenge Plaintiff s planned route of access over
their property, citing a number of concerns. These include the safety of Defendants' children,
crop damage, separating Defendants' horse riding ring from their barn, and soil impaction caused
by Plaintiffs heavy equipment passing over their land. As a result, Defendants argue that other
viable means of accessing the transmission line exist, and they refuse to give Plaintiff access to
its easement. Defendants allege that at two viable alternatives exist, one of which Mr. Blass
admitted that Plaintiff has yet to examine.
As a consequence of Defendants' refusal to allow Plaintiff to access the easement,
Plaintiffs reconstruction project is at a complete standstill. Plaintiff, through its employees'
testimony, has indicated that the alternative means of access suggested by Defendants are either
too costly to use and restore, or they are physically unsuitable. The Plaintiffs testimony in this
regard is flawed for reasons we will review later.
In order to obtain a preliminary injunction, the moving party must demonstrate the
existence of the following factors:
1) that the injunction is necessary to prevent immediate and
irreparable harm that cannot be adequately compensated by
damages;
2
NO. 09-4647 CIVIL
2) that greater injury would result from refusing an injunction
than from granting it, and, concomitantly, that issuance of an
injunction will not substantially harm other interested parties in
the proceedings;
3) that a preliminary injunction will properly restore the parties to
their status as it existed immediately prior to the alleged
wrongful conduct;
4) that the activity it seeks to restrain is actionable, that its right to
relief is clear, and that the wrong is manifest, or, in other
words, must show that it is likely to prevail on the merits;
5) that the injunction it seeks is reasonably suited to abate the
offending activity; and
6) that a preliminary injunction will not adversely affect the,
public interest.
Warehime v. Warehime, 580 Pa. 201, 209-10, 860 A.2d 41, 46-47 (2004). These factors are each
discussed below.
With respect to the necessity of granting the injunction and on the question of the relative
injury to the parties, it is clear that Plaintiff's interests are paramount. First, the transmission line
being rebuilt by Plaintiff serves 7,000 customers. Plaintiff's employees have provided
uncontradicted testimony that these 7,000 customers will experience rolling blackouts in the
event that the reconstruction project cannot proceed. On the other hand, Defendants have
legitimate concerns about crop damage, soil compaction, and the safety of their children. While
their concerns are reasonable, the predicted service interruptions to 7,000 of Plaintiff's customers
far outweigh the three-month inconvenience to Defendants.
The touchstone for interpretation of arguably ambiguous grant terms - such as the "right
to ingress and egress" at issue here - is reasonableness. Taylor v. Heffner, 359 Pa. 157, 162-63,
58 A.2d 450, 453 (1948). "A grant is to be construed in favor of the grantee, and includes
whatever is reasonably necessary to an enjoyment of the thing granted." Hammond v.
Hammond, 258 Pa. 51, 56, 101 A. 855, 856 (1917). Additionally, owners of the servient
3
NO. 09-4647 CIVIL
tenement are not permitted to prevent reasonable use of an easement by the holders of an
easement. Kushner v. Butler County Airport Authority, 764 A.2d 600, 603 (Pa.Super. 2000).
Speaking more directly to the issue presented here, the North Dakota Supreme Court noted:
One of the cardinal principles of the law of easements is that the
dominant owner has the right of access to make repairs and. that he
may enter upon the servient estate for this purpose at all reasonable
times. He may not, however, inflict unnecessary injury. The right
to maintain and repair an easement is based upon the principle that
a grant of the use of a thing carries with it everything by which the
grantee may reasonably enjoy the use thereof.
Otter Tail Power Co. v. Malme, 92 N.W.2d 514, 523 (N.D. 1958) (citing 17A Am.Jur. §§ 129-
130), see also Am.Jur. Easements § 83.
The principles set forth by the court in Malme also appear in Restatement (Third) of
Property: Servitudes, section 4. 10, which reads:
Except as limited by the terms of the servitude determined under
4. 1, the holder of an easement or profit as defined in § 1.2 is
entitled to use the servient estate in a manner that is reasonably
necessary for the convenient enjoyment of the servitude. The
manner, frequency, and intensity of the use may change over time
to take advantage of developments in technology and to
accommodate normal development of the dominant estate or
enterprise benefited by the servitude. Unless authorized by the
terms of the servitude, the holder is not entitled to cause
unreasonable damage to the servient estate or interfere
unreasonably with its enjoyment.
Restatement (Third) of Property: Servitudes § 4.10 (2000). The Pennsylvania Superior Court has
also cited this authority favorably in PARC Holdings, Inc. v. Killian, 785 A.2d 106 (Pa.Super.
2001) (finding that installation of utilities is within the scope of an easement for ingress and
egress). Comment g, which underscores the central role reasonableness has with regard to
easement access, is especially illustrative:
4
NO. 09-4647 CIVIL
Unless the parties have agreed otherwise, the holder of an
easement is not entitled to cause unreasonable damage to the
servient estate. Because the holder of an easement is generally
entitled to enter the servient estate to make improvements and
construct improvements, a certain amount of damage or
inconvenience to the servient estate may be within the
contemplation of the parties. However, under the rule stated in this
section, the servitude owner is not entitled to cause any greater
damage than that contemplated by the parties, or reasonably
necessary to accomplish the purposes of the servitude.
Restatement (Third) of Property: Servitudes § 4.10 cmt. g (2000).
We are satisfied that the grant at issue gives the Plaintiff a 70-foot wide easement across
Defendants' land as well as the right of ingress and egress to the easement itself. It can be safely
assumed that the original parties to the easement agreement at issue contemplated the entry of
some kind of construction equipment onto the farm now owned by the Defendants. As noted
above, however, the Plaintiff is not at liberty to cause unreasonable damage to the Defendants'
property. A corollary of this principle is that, when faced with two alternatives in gaining access
to its easement, the easement holder is bound to select the more reasonable of the two. Here, the
Defendants have presented evidence that the Plaintiff is already within feet of the southwestern
boundary of Defendants' property and that it is more reasonable for the Plaintiff to simply
continue across the existing easement. Surprisingly, the Plaintiff has offered no testimony on the
question of whether or not entry can be gained in the manner proposed by the Defendants. Mr.
Blass presented a topographical map indicating that there is a seasonal stream in the area. He
also purportedly received information from a local farmer that the stream is difficult to cross.
Mr. Blass, however, candidly admits that he has not performed his own inspection and cannot
provide a meaningful response to the Defendants' contention that access through the southwest
corner is more reasonable. For this reason, we cannot be satisfied that the Plaintiff is likely to
5
NO. 09-4647 CIVIL
ultimately prevail on the merits of this case and therefore a preliminary injunction is not
warranted at this stage.
However, we will deny the preliminary injunction without prejudice. The urgency of this
project is such that we believe it only proper to permit PPL to supplement the record with
suitable proof that the access they seek to their easement is the most reasonable course. Neither
party is estopped from requesting a view as part of a subsequent proceeding in this case though
they should be forewarned that the undersigned has never driven a large truck let alone over a
small stream.
ORDER
AND NOW, this 17 , day of August, 2009, the motion of the Plaintiff for preliminary
injunction is DENIED without prejudice to request further hearing following the Plaintiff's study
of alternatives to their proposed access to their 70-foot wide easement.
BY THE COURT,
1
Kevin, A. Hess, J.
James H. Thomas, Esquire
For the Plaintiff
Douglas G. Miller, Esquire
For the Defendants
rlm
6
PPL ELECTRIC UTILITIES
CORPORATION,
Plaintiff
V.
JASON W. BERGEY and
REBECCA L. BERGEY,
Defendants.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2009 - 4647 CIVIL TERM
MOTION FOR CONTINUANCE
AND NOW, this 24th day of August 2009, comes the Defendants, Jason W. Bergey and
Rebecca L. Bergey, by and through their attorneys, Irwin & McKnight, P.C., and makes the
following Motion for Continuance, averring as follows:
1. The Plaintiff is PPL Electric Utilities Corporation, a registered Pennsylvania
corporation with its principal place of business at 2 North 9th Street, Allentown, Pennsylvania
18101,
2. The Defendants are Jason W. Bergey and Rebecca L. Bergey, adult individuals of
79 Green Ridge Road, Mechanicsburg, Pennsylvania 17055.
3. On or about August 6, 2009 a hearing was held before Judge Hess.
4. On or about August 17, 2009, an Order was issued denying the Plaintiff's
Motion for Preliminary Injunction but allowing Plaintiff to present additional testimony with
regard to alternative access to the easement.
5. Upon information and belief, Plaintiff sent a request to the Court for an additional
hearing by overnight delivery, but sent a copy to Defendant's legal counsel only by regular mail
delivery.
6. Defendant's legal counsel did not receive the written letter to the Court from
Plaintiff until Friday, August 21St
7. A hearing has been scheduled for Wednesday, August 26, 2009 at 2:00 p.m.
8. The undersigned legal counsel has a previously scheduled meeting in
Chambersburg, Franklin County, on August 26, 2009 at 3:00 p.m., and therefore is not able to be
present in Cumberland County for a hearing at 2:00 p.m.
9. Furthermore, Defendants are currently engaging the services of an expert witness
who can view the property, prepare a report, and testify before the Court.
10. Defendants will not be able to secure the necessary view of the property and
expert witness report prior to the scheduled hearing.
11. Counsel for Plaintiff, James H. Thomas, Esquire, has been contacted regarding
this request for continuance and does not concur with the filing of this Motion.
12. The Honorable Kevin A. Hess has heard the prior testimony and issued the Order
in the above-captioned matter.
WHEREFORE, the Defendants, Jason W. Bergey and Rebecca L. Bergey, respectfully
request that this Honorable Court enter an Order continuing the hearing scheduled for August 26,
2009 at 2:00 p.m.
Respectfully submitted,
IRWIN & McKNIGHT, P.C.
By: A sl?
Do glas . Miller, Esquire
Supreme ourt I.D. No: 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
717-249-2353
Date: August 24, 2009 Attorney for Defendants
2
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below both by facsimile and by first class
United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
James H. Thomas, Esquire
Blakinger, Byler & Thomas, P.C.
28 Penn Square
Lancaster, PA 17603
Attorney for Plaintiff
Date: August 24, 2009 IRWIN & McKNIGHT, P.C.
.??4'Ax
Do glas .Miller, Esquire
Supreme Court ID No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendants
FiLEEf..
OF THE F', ,,,' ' ,?!,AaY
'2009 AUG 2 r 2? S+
PPL ELECTRIC UTILITIES IN THE COURT OF COMMON PLEAS OF
CORPORATION, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
vs. NO. 09-4647 CIVIL
JASON W. and REBECCA L.
BERGEY,
Defendants
ORDER
AND NOW, this 20' day of August, 2009, further hearing in the above-captioned
matter is set for Wednesday, August 26, 2009, at 2:00 p.m. in Courtroom Number 4, Cumberland
County Courthouse, Carlisle, PA.
BY THE COURT,
Zmes H. Thomas, Esquire
For the Plaintiff
,.?1'o"uglas G. Miller, Esquire
For the Defendant
:rlm
v?,o
0
AU I17 ?I
iGJ T
PPL ELECTRIC UTILITIES : IN THE COURT OF COMMON PLEAS OF
CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. NO. 2009 - 4647 CIVIL TERM
JASON W. BERGEY and
REBECCA L. BERGEY,
Defendants.
ORDER OF COURT
AND NOW, this day of , 2009, upon consideration of the
61
attached Defendant's Motion for Continuance, the hearing scheduled for Wednesday, August 26,
2009 at 2:00 p.m. is continued until the 4 day of AjtDn/AZj , 2009 at l?50YOM. -Z/'n
BY THE COURT,
THE
- 1?11,9v?l
KEVIN A. HESS
OF THE R i(?,T` -'ONCTARY
2009 AUG 25 FM 3' 49
PPL ELECTRIC UTILITIES IN THE COURT OF COMMON PLEAS OF
CORPORATION, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
VS. NO. 09-4647 CIVIL
JASON W. and REBECCA L.
BERGEY,
Defendants
IN RE: INJUNCTION
BEFORE HESS, J.
ORDER
AND NOW, this 1( day of September, 2009, following multiple hearings in this
case, the court being prepared to find in favor of the plaintiff, counsel for PPL Electric Utilities
Corporation is authorized to submit to the court a proposed order enjoining any opposition to and
otherwise facilitating their entry over the land of the defendants for the purpose of the
completion of the Cumberland-Wertzville 69KV Rebuild.
BY THE COURT,
Kevin ess, J.
? James H. Thomas, Esquire
For the Plaintiff
? Douglas G. Miller, Esquire
For the Defendants
: rlm
coftle.-S rru'v
q ?rc? coq
1%
PPL ELECTRIC UTILITIES IN THE COURT OF COMMON PLEAS OF
CORPORATION, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
VS. NO. 09-4647 CIVIL
JASON W. and REBECCA L.
BERGEY,
Defendants
IN RE: INJUNCTION
BEFORE HESS, J.
OPINION AND ORDER
On August 17, 2009, we entered an order denying the issuance of a preliminary
injunction in this case but permitted the plaintiff to produce additional testimony. Plaintiff seeks
to enter onto the land of the defendants in the exercise of an easement as part of a major
rebuilding project of the Cumberland-Wertzville electric transmission line.
In our earlier opinion, we cited authority for the proposition that the plaintiff could
exercise its easement but was prevented from inflicting unnecessary injury with regard to the
Bergeys' property. PPL proposes to enter the Bergeys' driveway and cross their land to reach its
easement which runs parallel to Interstate 81. PPL's heavier vehicles would cross the property
twice - once going in and once coming out. PPL proposes to repair any and all damage and to
restore the property to its previous condition at its expense. This will include the removal of any
stones or other materials put down to facilitate the movement of vehicles. Any inconvenience to
the Bergeys is estimated to be of two weeks' duration.
Notwithstanding this proposal for a relatively harmless entry onto the Bergey property,
we required a second hearing so that PPL could explain why it could not enter onto the Bergey
property elsewhere and, specifically, from either the east or west end of its existing right-of-way.
NO. 09-4647 CIVIL
We are now satisfied that these alternative points of entry are no more convenient or less
harmful than the method of entry originally proposed by PPL. Both alternatives require that the
utility corporation enter over designated wetlands. In the case of at least one of the streams, we
are satisfied that extensive damage will be done to the environment. In any event, PPL does not
have specific permits to effect entry at either of these locations. The permitting process would
take several months and we are not prepared to rule, as a legal matter, that PPL is required to
obtain such permits where their proposed method of access will not cause "unreasonable damage
to the servient estate." SeeRestatement Third of Property: Servitudes, Section 4.10 (2000). We
will, therefore, permit PPL to submit to the court a proposed order with leave to counsel for the
defendants to comment thereon with the understanding that the final order in this case is not
entered with the consent of the defendants.
ORDER
AND NOW, this /? day of September, 2009, following multiple hearings in this
case, the court being prepared to find in favor of the plaintiff, counsel for PPL Electric Utilities
Corporation is authorized to submit to the court a proposed order enjoining any opposition to and
otherwise facilitating their entry over the land of the defendants for the purpose of the
completion of the Cumberland-Wertzville 69KV Rebuild.
James H. Thomas, Esquire
For the Plaintiff
Douglas G. Miller, Esquire
For the Defendants
2
BY THE COURT,
OF TI-{r._
2009 SEE 16 PH 3'. 4 3
N; A
t
V
PPL ELECTRIC UTILITIES IN THE COURT OF COMMON PLEAS OF
CORPORATION, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
VS. NO. 09-4647 CIVIL
JASON W. and REBECCA L.
BERGEY,
Defendants
ORDER
AND NOW, this z r' day of September, 2009, upon consideration of Plaintiff's
Petition for Preliminary Injunction, and following hearings held on July 30, August 6, and
August 26, 2009, it is hereby ordered that Defendants, Jason W. Bergey and Rebecca L. Bergey,
are enjoined from obstructing or otherwise blocking PPL Electric Utilities Corporation's entry to
and access over their land at 79 Green Ridge Road, Mechanicsburg, Pennsylvania 17055,
including ingress and egress to and from PPL's transmission lines for PPL's rebuild of its
Cumberland- Wertzville 69KV line.
PPL shall provide the Defendants seventy-two (72) hours' notice prior to the initial entry
upon the Bergy property so that the Defendant(s) may be present when the access road is laid out
and/or marked. In accordance with its normal practice, PPL shall make a video recording of the
road, site prior to access by other vehicles and, upon completion of the current project, PPL shall
restore the access road area, as nearly as possible, to its prior condition, and shall reimburse the
Bergeys for any and all damages caused to crops, grains, fences or driveways and pay damages
for soil compaction in accordance with its right-of-way agreement and current PPL policies.
Plaintiff is directed to post a bond in the amount of $1,000.00 for such costs and
damages, if any, as may be incurred or suffered by any party found to have been wrongfully
enjoined or restrained.
vJames H. Thomas Esquire
For the Plaintiff
? Douglas G. Miller, Esquire
For the Defendants
Am
LL
? t QS r qa l 9'?a.5?oq
BY THE COURT,
Kevin . Hess, J.
a _r
FILE i
?#;r ? Jr?n 1?4Py r??
Or-
/' u . .
, t THE
20095EP 2? FiI 1u
1
V JHTIFG 525137.1 ( 23318.011 ) 1011109
BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney I.D. #19524
By: Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
V.
No. 09-4647
JASON W. and REBECCA L. BERGEY
Defendants
BOND
KNOW ALL MEN BY THESE PRESENTS, THAT PPL Electric Utilities Corporation is
held and firmly bound unto the Commonwealth of Pennsylvania in the sum of $-/4000, , to
be paid to the Commonwealth of Pennsylvania; to which payment, well and truly to be made, we
bind ourselves, our and each of our heirs, executors, and administrators, firmly by these presents.
Sealed with our seals.
Dated the / day of VC k1 , 2009.
WHEREAS, PPL Electric Utilities Corporation filed a complaint in equity in the Court of
Common Pleas for the County of Cumberland, No. 09-4647, against Jason W. Bergey and Rebecca
L. Bergey, defendants, requesting, inter alia, an injunction to restrain the defendant as therein
. JHT:LFG 525137.1 (23318.011 ) 10/1/09
particularly set forth, which said injunction was duly granted by the said Court on the entering of the
security in the above-mentioned sum.
NOW, THE CONDITION OF THIS OBLIGATION IS SUCH, THAT if the injunction is
dissolved because improperly granted, or for failure to hold a hearing; the plaintiff shall pay to any
person injured all damages sustained by reason of granting the injunction and all legally taxable costs
and fees, this obligation then to be void; otherwise it is to remain in full force and effect.
e" X ld96
41/00P I I
PPL ELECTRIC UTILITIES CORPORATInN
fvc4vaw
MOCT -I W 03
/ cam ed. b oz- ez4e -,,
4.0 /,
11141* ;?3ia ST
JHT:LFG 567627.1 { 23318.011) 8/21110
ORIGINAL
BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney LD. #19524
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
i.J l it i~d~r'~~l~~i~l1 1r~~~1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
v.
No. 09-4647
JASON W. and REBECCA L. BERGEY
Defendants
PLAINTIFF'S MOTION TO RELEASE BOND
PPL Electric Utilities Corporation, by and through its counsel, Blakinger, Byler & Thomas,
P.C. and James H. Thomas, Esquire, files this Motion to release the $1,000.00 bond filed as security
for costs and damages in this action now that the matter has been fully resolved, and in support
thereof alleges as follows:
1. Movant PPL Electric Utilities Corporation ("PPL") filed the above-captioned
Complaint and sought preliminary injunction relief to enjoin the obstruction of its utility easement.
2. After hearings held July 30, August 6 and August 26, 2009, this Honorable Court
issued an Order granting the injunction and directed PPL to post a bond in the amount of $1,000.00
for such costs and damages, if any, as maybe incurred or suffered by any party found to have been
wrongfully enjoined or restrained. A copy of the Order of the Honorable Kevin A. Hess is attached
hereto as Exhibit "A".
JHT:LFG 567627.1 (23318.011) 9121/10
3. On October 1, 2009, PPL filed a cash bond of $1,000.00 with the Prothonotary of
Cumberland County in satisfaction of its obligations under the aforesaid Order. A copy of the Bond
is attached hereto as Exhibit "B".
4. PPL subsequently gained access through the utility easement and performed the work
for which the injunction was sought.
5. In accordance with the aforesaid Order, PPL calculated and reimbursed Defendants
Jason W. and Rebecca L. Bergey for damages caused by virtue of the access. The Bergeys executed
a Release in exchange for payment of $9,893.47. The Release is attached hereto as Exhibit "C".
Thus, this matter has been resolved.
6. Pursuant to C.C.R.P. 208.2(b), Douglas G. Miller, Esquire, counsel to Defendants
Jason W. and Rebecca L. Bergey, concurs with the relief sought in this Motion.
7. If this Motion is granted, and the bond released, PPL will file a Praecipe satisfying
and ending the litigation.
WHEREFORE, PPL respectfully requests this Honorable Court to grant this Motion and
order the release of the cash bond in accordance with the attached Order.
Respectfully submitted,
BLAKINGER, BYLER & THOMAS, P. C.
Date: ~ 6_ ZOIo By:
s H. Thomas, Esquire
orney I.D. # 19524
28 Penn Square
Lancaster, PA 17503
Attorneys for Plaintiff
2
JHT:l.FO 567827.1 (23316.011) 9f21/10
V)/RTFICATION
I, Michael S. Wukitsch, Project Leader for PPL ELECTRIC UTILITIES CORPORATION,
do hereby swear that I am authorized to make this Verification on behalf of PPL ELECTRIC
UTILITIES CORPORATION, and I verify the foregoing document is true and correct to the best of
my information, Iaiowledge and 6eiief. I understand that false statements herein are made subject
to the Rules of 18 Pa.C.S,A. § 4904, relating to unsworn falsification to authorities.
PPL ELECTRIC UTILITIES CORPORATION
Dated: ~g ~~ sy;
~ Michael S. Wukitsch
Project Leader
JHT:LFG 567627.1 (23318.011) 9!21/10
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing Plaintiff's Motion to Release Bond
upon the persons and in the manner indicated below which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure:
Service bX First Class Mail as follows:
Douglas G. Miller, Esquire
Irwin & McKnight, P.C.
60 West Pomfret Street
Carlisle, PA 17013
BLAKINGER, BYLER & THOMAS, P.C.
Date: r By: GiY+u•. ~t/• ~rm.~v
es H. Thomas, Esquire
ttorney I.D. #19524
28 Penn Square
Lancaster, PA 17603
Telephone: (7I 7) 299-1100
Attorneys for Plaintiff
~~R
~~
PPL ELECTRIC UTILITIES IN THE COURT OF COMMON PLEAS OF
CORPORATION, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION -LAW
vs. NO. 09-4647 CIVIL
JASON W. and REBECCA L.
BERGEY,
Defendants
ORDER
AND NOW, this Z ~''~ day of September, 2009, upon consideration of Plaintiff's
Petition for Preliminary Injunction, and following hearings held on July 30, August 6, and
August 26, 2009, it is hereby ordered that Defendants, Jason W. Bergey and Rebecca L. Bergey,
are enjoined from obstructing or otherwise blocking PPL Electric Utilities Corporation's entry to
and access over their Iand at 79 Green Ridge Road, Mechanicsburg, Pennsylvania 17055,
including ingress and egress to and from PPL's transmission lines for PPL's rebuild of its
Cumberland-Wertzville 69KV line.
PPL shall provide the Defendants seventy-two (72) hours' notice prior to the initial entry
upon the Bergy property so that the Defendant(s) may be present when the access road is laid out
and/or marked. In accordance with its normal practice, PPL shall make a video recording of the
road, site prior to access by other vehicles and, upon completion of the current project, PPL shall
restore the access road area, as nearly as possible, to its prior condition, and shall reimburse the
Bergeys for any and all damages caused to crops, grains, fences or driveways and pay damages
for soil compaction in accordance with its right-of--way agreement and current PPL policies.
Plaintiff is directed to post a bond in the amount of $1,000.00 for such costs and
damages, if any, as may be incurred or suffered by any party found to have been wrongfully
enjoined or restrained.
BY THE COURT,
James H. Thomas, Esquire
For the Plaintiff
Douglas G. Miller, Esquire
For the Defendants
:rlm
~~ i~,;t';;ra,Y ?~ig2ii7f//t11~~i 31N7i8 ~,~t+~.u n.~~:t ~~as i1a"?~4
Chi Wi ~{~ ~ :~~`" {~ ~1 x,!,[ ~+?~~i~~, 4"~
~ ~ ,
a
~~
~~
JHT:LFG 525137.1 (23318.011) 1011/09
BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney I.D. #19524
By: Angela M. Holt, Esquire
Attorney I.D. #209333
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
~" r I'i~ rTiV~~~~Nil
Z~9 OCT - t ~M f0~ Q3
~~~l~tV1Y
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
v.
No. 09-4647
JASON W. and REBECCA L. BERGEY
Defendants
BOND
KNOW ALL MEN BY THESE PRESENTS, THAT PPL Electric Utilities Corporation is
held and firmly bound unto the Commonwealth of Pennsylvania in the sum of $ JpOQ ~ '~ , to
be paid to the Commonwealth of Pennsylvania; to which payment, well and truly to be made, we
bind ourselves, our and each of our heirs, executors, and administrators, firmly by these presents.
Sealed with our seals.
Dated the f ~T day of ~G~f(-1i2~ , 2009.
WHEREAS, PPL Electric Utilities Corporation filed a complaint in equity in the Court of
Common Pleas for the County of Cumberland, No. 09-4647, against Jason W. Bergey and Rebecca
L. Bergey, defendants, requesting, inter alia, an injunction to restrain the defendant as therein
JHT:IFG 525137.1 (23318.011) 1011109
particularly set forth, which said injunction was duly granted by the said Court on the entering of the
security in the above-mentioned sum.
NOW, THE CONDITION OF THIS OBLIGATION IS SUCH, THAT if the injunction is
dissolved because improperly granted, or for failure to hold a hearing; the plaintiff shall pay to any
person injured all damages sustained by reason of granting the injunction and all legally taxable costs
and fees, this obligation then to be void; otherwise it is to remain in full force and effect.
PPL ELECTRIC UTILITIES CORPORATION
~ ID~f G
.~/ooD . ,
By:
~,a
~~
Form 100-93 (212000}
:;:
°~ ~_:
pP ~::
KNOW ALL MEN BY THESE PRESENTS, that '' U
for and in consideration of the sum of '"~ '~ ~ ~' /_
Dollars ) in hand paid by PPL Electric Utilities Corporation, the receipt hereof //~
Is hereby acknowledged, do hereby remise, release, quitclaim and forever discharge the said PPL
Electric Utilities Corporation, its respective officers, agents, employees, successors, assigns and
aIf persons or entities, whether or not named herein, who may be jointly or severally liable, of and
from all suits, claims, demands, actions, damages and claims for damages or contribution
whatsoever arising out of or resulting from any injury, loss or damage that may have been caused
to `crops, grain and property in the ~,~~~~ of ~j~f,.~ t j
~~
County of U~~~~,7' ,Commonwealth of Pennsylvania, by reason of the
construction, reconstruction and/or maintenance by the said PPL Electric Utilities Corporation of
its overhead and/or underground electric line facilities, upon, over, under and across said property
to the day of the date of these presents.
Signed, sealed and delivered this p~~day of ~~:~~~~~%~ , ZO/G.}
EAL)
EAL)
/ f J f
~~'~.~ ~~~%/mix 1-~?~~G ,~~~"
~ ~~ ~x $r33~9 5~~/
. ~~' c,~ a
c g~~ ~5~
Line ~ ~"
ER/CCN LJ 0 ~ ~ ~
Doc-Grid '"~ Q
Map
~~~ ~9~9,~.y
JAL! A~-1~ ~ a . b~l~c~2'~S
3c~e~~~ ~~,aa~3-97
q~5,$~~a~.$?
JHT:LFG 570285.1 (23318.011) 10/14/10
~a
BLAKINGER, BYLER & THOMAS, P.C.
By: James H. Thomas, Esquire
Attorney I.D. #19524
28 Penn Square
Lancaster, PA 17603
(717) 299-1100
Attorneys for Plaintiff
~~ ~~
2t11D OCR 15 ARC 11 ~ ~~
~.lt~B~RR~~ ~~F~~~~T1'
` ~~E~tS
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -EQUITY
PPL ELECTRIC UTILITIES
CORPORATION
Plaintiff
No. 09-4647
v.
JASON W. and REBECCA L. BERGEY
Defendants
PRAECIPE TO SETTLE, SATISFY & DISCONTINUE
TO THE PROTHONOTARY:
Kindly mark the docket in the above matter settled, ended, discontinued and costs paid.
BLAKINGER, BYLER & THOMAS, P.C.
Date: / S LOlD By: ~~,
amen H. Thomas, Esquire
DISCONTINUANCE CERTIFICATE
AND NOW, this day of
above directed.
2010, this suit has been marked as
PROTHONOTARY
,~ JHT:LFG 570285.1 (23318.011) 10/14/10
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing Praecipe to Settle, Satisfy and
Discontinue upon the persons and in the manner indicated below which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure:
Service by First Class Mail as follows:
Douglas G. Miller, Esquire
Irwin & McKnight, P.C.
60 West Pomfret Street
Carlisle, PA 17013
Date:
BLAKINGER, BYLER & THOMAS, P.C.
By: ..,~trrn
es H. Thomas, Esquire
Attorney I.D. #19524
28 Penn Square
Lancaster, PA 17603
Telephone: (717) 299-1100
Attorneys for Plaintiff
2