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HomeMy WebLinkAbout09-5838ORIGINAL Tucker Arensberg, P.C. BY: Lee C. Swartz I.D. NO: 07258 111 N. Front Street, P.O. Box 889 Harrisburg, PA 17108 (717) 234-4121 ATTORNEY FOR PLAINTIFF WILLIAM M. BREEN and SUSAN E. BREEN, his wife, v. Plaintiffs CARROL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. b83'8 Zvi ( Tem CIVIL ACTION COMPLAINT "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 (2o) 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 buy 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 of 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. LAWYER REFERENCE SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 "AVISO" "Le han demandado en corte. Si usted desea defender contra las demandas dispuestas en las piginas siguientes, usted debe tomar la acci6n en el plazo de veinte (20) dies despu6s de esta queja y se sirve el aviso, incorporando un aspecto escrito personalmente o y archivando en escribir con la corte sus defensas u objeciones a las demandas dispuestas contra usted el abogedo le advierte que que si usted no puede hacer asi que el caso puede proceder sin usted y un juicio se puede incorporar contra usted compra la torte sin aviso adicional para cualquier dinero demandado en la queja o pata cualquier otra demanda o relevaci6n pedida por el demandante. Usted puede perder el dinero o la caracteristica de otra endereza importante a usted. USTED DEBE LLEVAR ESTE PAPEL SU ABOGADO INNMDIATAMENTE. SI USTED NO HACE QUE UN ABOGADO VAYA A O LLAME POR TELEFONO La OFICINA DISPUESTA ABAJO. ESTA OFICINA PUEDE PRROVEER DE LISTED LA INFORMAcON SOME EMPLEAR A UN ABOGADO. ST USTED NO PUEDE PERMITIRSE AL HIRE A UN ABOGADO, ESTA OFICINA PUEDE PODER PROVEER DE USTED LA INFORMACIbN SOME LAS AGENCIAS QUE LOS SERVICIOS JURIDICOS DE LA OFERTA DE MAYO A LAS PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO O NINGUN HONORARIO SERVICIO DE REFERENCIA LEGAL Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 ROLF E. KROLL, ESQUIRE Pa. Supreme Court I.D. No. 47243 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: [717] 975-8114 Direct Dial: (717) 760-7502 Attorneys for Defendant: Fax: [717] 975-8124 CARROL TRACEY E-Mail: rkroll@margolisedelstein.com WILLIAM M. BREEN and : IN THE COURT OF COMMON PLEAS SUSAN E. BREEN, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 09-5838 CIVIL TERM CARROL TRACEY, ELIZABETH MYERS and BARRY SHOFF, Defendants. : JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Kindly enter my appearance on behalf of Defendant, Carrol Tracey, in the above-captioned matter. Respectfully submitted, MAR S EDELSTEIN i' 1i 7 - "- By: ROLF E. LL, ESQUIRE PA Attor ey I.D. #47243 Attorneys for Defendant, CARROL TRACEY 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 I CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRAECIPE TO ENTER APPEARANCE ON BEHALF OF DEFENDANT, CARROL TRACEY, on all counsel of record by placing the same in the United States mail at mp Hill, Pennsylvania, first-class postage prepaid, on the day of , 2009, and addressed as follows: Lee C. Swartz, Esquire Tucker Arensberg 111 N. Front Street P.O. Box 889 Harrisburg, PA 17108 MARGOLIS ?'/ 6r, / ? E. Nelson, Secretary OF ? ^? ?ILE?=ate. _-? z q VIE P r' C,'OTA tT 2009 SEP 23 Pl 2: 4 5 WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs V. CARROL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. _69- 593Y Lf 1 COMPLAINT 1. William M. Breen and Susan E. Breen are adult individuals, husband and wife, residing at 107 Glendale Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Carrol Tracey (hereinafter "Defendant Tracey") and Barry Shoff (hereinafter "Defendant Shoff') are adult individuals residing at 104 Glendale Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Elizabeth Myers (hereinafter "Defendant Myers") is an adult individual residing at 117 Glendale Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. Factual Background 4. Plaintiffs and Defendants reside in Silver Spring Township at the addresses noted above. 5. The Breens' property adjoins the property owned by the Defendant Tracey as well as another property owned by Defendant Myers. 6. 7. 8. 9. Defendant Shoff resides with Defendant Tracey. Defendant Tracey is the daughter of Defendant Myers. Defendant Shoff is the paramour of Defendant Tracey. A road exists between the boundary of the Plaintiffs' property and the property of Defendant Tracey and continues past that common boundary through the property of Defendant Myers, providing access to the Defendant Tracey and Defendant Myers properties. 10. As a result of actions of the Defendant Tracey, the road has encroached upon the Plaintiffs' property which has been paved by Defendant Tracey, as well as both Defendants Tracey and Myers having erected a fence on the Plaintiffs' property without the Plaintiffs' permission. 11. Defendant Tracey operates an illegal dog kennel on her property and is assisted in this operation by Defendant Shoff. Permission for a variance to operate the kennel was denied by the Silver Spring Township Zoning Hearing Board on November 13, 2006. 12. For a period of in excess of five (5) years, Defendant Tracey has coveted a portion of the Plaintiffs' property adjoining her own, knowing that the Plaintiffs convey at least four (4) feet of their property to her. 13. The Plaintiffs cannot convey their property to Defendant Tracey without substantial financial loss since it would then preclude them from the use of a 50-foot right-of- way purchased by the Plaintiffs in order that they might eventually subdivide and develop the 40 acres of property which they own. 14. In 1978 and approximately 18 years ago, the Plaintiffs and Defendant Myers retained a surveyor to survey their respective properties, including the common boundary referred to above. 15. Both the Plaintiffs and Defendant Myers indicated their satisfaction with both surveys. 16. In September 2006, the Township Zoning Board told Defendant Tracey that she could not have more than four (4) dogs on her property, and that she could not run a kennel. Defendant Myers added Defendant Tracey's name on her property deed so that she could put a kennel on her (Myers') land. This was presented to the Township Zoning Board in April or May of 2007, and the Zoning Board told her that while a kennel could be acceptable, Defendant 2 Tracey's driveway had to be three feet away from Plaintiffs' property line. Defendant Tracey has refused to comply with this directive because she would have to cut down a tree. Defendant Myers has stated to Plaintiff William Breen more than five times that he should not be worrying about his little piece of property, and that Defendant Tracey needed it more than the Plaintiffs. Plaintiff William Breen stated to Defendant Myers that this is his property and Defendant Tracey cannot use it, and that it is not for sale for Defendant's Tracey's commercial use. 17. When the Plaintiffs refused to sell their property, Defendant Tracey had a new survey compiled at which time she advised the surveyor to use an improper monument (steel pin) in an attempt to unlawfully obtain approximately four (4) feet of the Plaintiffs' property which she had already unlawfully paved over, and persisted in a claim of title to Plaintiffs' land, inconsistent with the lawful interest of the Plaintiffs. 18. As the result of an unlawful criminal trespass action brought against William M. Breen at the instigation of Defendant Tracey, the new surveyor was asked to compare his survey with that made by the surveyor approximately 18 years ago and in 1978. 19. As a result of the comparison of the two surveys, the new surveyor agreed that his survey was incorrect and fully ratified the old survey as being proper and established Plaintiffs' boundaries and Plaintiffs' right of ownership to the disputed area. 20. After Defendant Tracey obtained the improper survey, she, her children and Defendant Shoff commenced a conspiracy and plan of harassment of the Plaintiffs as hereinafter set forth. The Harassment of the Plaintiffs 21. On May 27, 2008, at about 5:48 p.m., William Breen walked along his side of the common boundary between the Plaintiffs' and Defendant Tracey's properties, trying to locate his surveyor's new boundary input stake that was reset again in June, 2007, because the last stake and the two others before that had been removed on prior occasions. Mr. Breen could not find the new boundary stake at that particular time. 3 22. At the aforesaid time and place, one of the children of Defendant Tracey observed Mr. Breen looking for his surveyor's pin and called his mother on her cell phone. 23. As a result of this observation, Defendant Tracey called the Silver Spring Township police and asked them to arrest Mr. Breen for trespassing and child harassment. 24. A case of criminal trespass was filed before a Magisterial District Justice and a hearing was held, at which time Defendant Tracey testified under oath that she would never recognize the original surveys. 25. As a result of the expert testimony of Plaintiffs' surveyor that his survey was correct and that Defendant Tracey's surveyor admitted the same to him, the District Justice dismissed the case against Mr. Breen. 26. Following the hearing on the criminal trespass charge, Defendant Tracey has encouraged her two minor sons and Defendant Shoff to operate loud, noisy and unmuffled all- terrain vehicles along the Plaintiffs' property line throughout the day and evening hours well over 100 times during the past year, in an effort to annoy the Plaintiffs. 27. The noise from the ATVs and dirt bikes was so loud that the Plaintiffs could not peacefully enjoy having company inside or outside their home. 28. The property upon which the ATV's are operated is owned by Defendant Myers who refuses to revoke permission for Defendant Tracey, her children and Defendant Shoff to operate the vehicles. 29. Defendant Myers is aware of the noise caused by the vehicles and its effect upon the Plaintiffs. 30. During the year 2008, Defendant Tracey engaged her paramour, Defendant Shoff to erect an outside wood stove on her property, to burn trash, wood, etc. which emits foul smells, brown and black smoke onto the property, which can be smelled outside and inside the home of the Plaintiffs. Also, Defendant Meyers installed the same type of outside stove that 4 discharges the same smell and smoke and they also can be smelled on their property and inside their home. 31. Defendant Tracey, notwithstanding her failure to obtain a permit to operate a dog kennel, continues to house and sell puppies and full-grown dogs on her property adjoining the property of the Plaintiffs and fails to maintain adequate sanitary conditions with respect to her dogs, causing foul odors to be carried onto the property of the Plaintiffs. 32. On various occasions the dogs owned by Defendant Tracey have been allowed to run onto the Plaintiffs' property, at one time biting the Susan Breen on the right thigh while riding her bicycle and William Breen on the right ankle while jogging in April 2005, causing injuries to both Plaintiffs, and at other times jumping on both of the Plaintiffs. FIRST CAUSE OF ACTION William M. Breen v. Carrol Defendant Tracey Conspiracy. False Arrest and Malicious Use and Abuse of Process 33. Paragraphs 1 through 32 are incorporated herein by reference. 34. As indicated heretofore, Defendant Tracey unlawfully caused the arrest of William Breen for trespass. 35. At the time of the aforestated arrest, William Breen was and still is an employee of the Naval Support Activity (formerly Naval Inventory Control Point) at Mechanicsburg, Pennsylvania, with a high classified security clearance. 36. This security clearance required Mr. Breen to report his arrest to his employer, causing him much embarrassment and humiliation, and fear of the loss of his employment and which constitutes intentional or negligent infliction of emotional distress. 37. In order to properly defend the case of trespass brought against him, Mr. Breen had to undergo the expense of having his surveyor, John Clark, come out and re-survey his property to make sure that everything was correct. 5 38. As a result of the surveyor's survey and meetings, including being called as an expert witness, Mr. Clark's bills exceed $2,000 to the damage of Mr. Breen. 39. In defending himself, Mr. Breen was required to hire an attorney to investigate, prepare a defense and appear at the hearing, which caused him to incur attorney's fees in excess of $2,000. SECOND CAUSE OF ACTION William M. Breen and Susan E Breen v Carroll Tracey CRIMINAL AND CIVIL TRESPASS 40. Paragraphs 1 through 39 are incorporated herein by reference. 41. In addition to paving the Plaintiffs' property as heretofore stated, Defendants Tracey, Myers and Shoff vehicles, and Shoff 's heavy equipment from work, and friends have continued to drive upon the Plaintiffs' property and Defendant Tracey, her children and Defendant Shoff have used a gas weed trimmer or push mower to cut grass and weeds on the Plaintiffs' driveway, flat area and bank, thus violating the criminal trespass statute 18 P.S. § 3503, as well as the common law of civil trespass. Defendant Tracey continues to assert a claim which is inconsistent with and adverse to Plaintiffs' right, title and interest in their land. THIRD CAUSE OF ACTION William M. Breen and Susan E Breen v Carrol Tracey Elizabeth Myers and Barry Shoff Public and Private Nuisance 42. Paragraphs 1 through 41 are incorporated herein by reference. 43. The noise from the ATVs and the odors from the stove and dogs constitute a public nuisance under 18 Pa.C.S.A. § 6504 and under the common law. FOURTH OF ACTION William M. Breen and Susan E Breen v Carroll Tracey Action to Quiet Title 44. Paragraphs 1 through 43 are incorporated herein by reference. 45. In addition to the encroachment of Defendant Tracey upon the Plaintiffs' property as aforestated, as referred to in paragraph 40 of this Complaint, Defendant Tracey filed an 6 illegal, improper and defective plan entitled "Defendant Tracey's Kennel" on March 28, 2008, in the Cumberland County Courthouse, which plan uses the improper boundaries of the survey as referred to above. 46. Plaintiffs, possessors of their property, bring this action to quiet title in the interest of establishing their legal boundaries which have been disputed by Defendant Tracey through trespass and the filing of an improper plan, to compel the said Defendant Tracey to cancel, surrender or satisfy of record the invalid plan which she has recorded, and discharge and cancel Defendant Tracey's claims to their land. 47. The conduct of all Defendants has been and continues to be intentional, reckless and outrageous. WHEREFORE, Plaintiffs pray the Honorable Court to enter the following order and damages: 1. Damages against Defendants Carrol Tracey, Elizabeth Myers and Barry Shoff for public nuisance under 18 Pa.C.S.A. § 6504, for common law nuisance and to enter a decree enjoining all Defendants from the following: a. operating the ATVs and dirt bikes; b. operating the outside wood stoves; C. operating the dog kennel; and d. creating sanitary conditions to preclude the foul odors coming from the dogs onto the Breen property. 2. Damages for trespassing upon the Breen property. 3. Requiring the removal of any pavement or fence illegally placed upon the Breen property. 4. Monetary damages, including punitive damages for intentional infliction of emotional distress and humiliation, resulting from the unlawful arrest of William Breen and the continuing harassment of the Plaintiffs. 7 5. Awarding the approximately $4,000 in expert fees and attorney's fees which Plaintiffs had to pay to defend the unlawful actions of Defendant Tracey and additional fees and expenses to prosecute the causes of action brought by this Complaint. 6. Enter an order determining that the title to the property of the Breens shall be in accordance with the survey prepared on January 30, 1978. 7. Compelling Carrol Tracey to cancel, surrender or satisfy of record the plan filed in the Cumberland County Courthouse on March 28, 2008, and to admit the invalidity of said plan with respect to the common boundary between the Breen and Tracey properties. 8. Bar the Defendant Tracey from asserting any right, title or interest in the Plaintiffs' land inconsistent with interest or claim of the Plaintiffs' as set forth in their survey. TUCKER ARENSBERG, P.C. By: Lee C. Swartz Pa. Bar I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR PLAINTIFFS 108158.1 8 VERIFICATION I, WILLIAM M. BREEN, hereby certify that I am a Plaintiff in this action, and that the facts contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements made to this verification are subject to the penalties of 18 Pa. C.S.A. §4904, relating to unswom falsification to authorities. `?L??Z6eL?4??+ r William M. Breen Dated: A 14 G Tom, 2009 0 FILED-OFF-CE Of THE PRO T HONO?APY 2OLr9 AUG 25 AM 11: 3 4 YI,.. CL' i y ot}N'TY d+l th -ifi$.6o PD ATr/ oZo'l4'101.3 Sheriffs Office of Cumberland County R Thomas Kline Sheri OFFiCE?',cT-` S-ERIFF FILDr_, IvLE OF TF,' Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor 2009 AUG 31 F 3* 34 S F r' William M. Breen vs. Carrol Tracey Case Number 2009-5838 SHERIFF'S RETURN OF SERVICE 08/27/2009 04:40 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on August 27, 2009 at 1640 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Carrol Tracey, by making known unto Barry Shopp, adult in charge at 104 Glendale 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. 08/27/2009 04:40 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on August 27, 2009 at 1640 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Barry Shoff, by making known unto himself personally, at 104 Glendale 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. 08/27/2009 04:55 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on August 27, 2009 at 1655 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Elisabeth Myers, by making known unto herself personally, at 117 Glendale Drive Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $78.44 August 28, 2009 SO ANSWERS, ?0-004' WVMW - - Ir. . R THOMAS KLINE, SHERIFF Deputy Sheriff WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs V. CARROLL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants TO: Lee C. Swartz, Esquire TUCKER ARENSBERG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 09-5838 - CIVIL TERM NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully Submitted, Rominger & Associates Date: October 5, 2009 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID #81924 Attorney for Defendants WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs V. CARROLL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 09-5838 - CIVIL TERM PRELIMINARY OBJECTIONS AND NOW comes, Carroll Tracey, Elizabeth Myers and Barry Shoff, by and through their privately retained counsel and raises the following preliminary objections to Plaintiffs complaint pursuant to the Rules of Pennsylvania Civil Procedure: MORE SPECIFIC PLEADING(S) REQUIRED. 1. Plaintiff(s) complain about a dog or dog(s) in paragraph 32 of their complaint. 2. The alleged actions of the dog(s), if a basis in tort or personally injury are regulated by a two year statute of limitations. 3. The only date given for the actions is 2005, which is outside the statute of limitations. 4. Defendants demand more specificity as to the alleged actions of the dog(s). 5. Defendants demand to know what injury if any occurred, and when it happened, so they may appropriately determine and plead any applicable affirmative defenses, including any applicable statute of limitations defense. WHEREFORE defendants demand a more specific pleading, including the actions of any dogs complained of, the dates of the incidents, and the injuries alleged. DEMURRER TO CRIMINAL TRESPASS CLAIMS. 6. Plaintiff has brought an action in Trespass styled as "criminal trespass", and as such it is not an appropriate cause of action. 7. The appropriate remedy is a criminal prosecution by and under the rules of criminal procedure. WHEREFORE defendants demur and ask this court dismiss any such claim of criminal trespass. Respectfully Submitted, Rominger & Associates Date: October 5, 2009 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID #81924 Attorney for Defendants WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs V. CARROLL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 09-5838 - CIVIL TERM CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Defendants, Carroll Tracey, Elizabeth Myers and Barry Shoff, do hereby certify that I this day served a copy of the Preliminary Objections upon the following by depositing same in the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Lee C. Swartz, Esquire TUCKER ARENSBERG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108 Respectfully Submitted, Rominger & Associates Date: October 5, 2009 KaF& Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID #81924 Attorney for Defendants Rh5D rRCE OF THE P""CINCiARY 2009 OCT -5 PM 3: 49 4 Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 09-5838 CIVIL TERM STIPULATION TO AMEND COMPLAINT The parties hereby agree to the attached Amendments to the Complaint of the Plaintiffs. WILLIAM M. BREEN and SUSAN E. BREEN, his wife, v. Plaintiffs CARROL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, TUCKER ARENSBERG, P.C. By: Lee . Swartz ' Pa. Bar I.D. No. 072538 111 N. Front Street, P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) (234-4121) Facsimile: (717) 232-8802 ATTORNEYS FOR PLAINTIFFS Dated: 1 b9 ROMINGER A ASSOCIATES By: Karl E. Rominger Pa. Bar I.D. No. 81924 155 South Hanover, PA 17013 Carlisle, PA 17013 Telephone: (717) 241-8070 Facsimile: (717) 241-6878 ATTORNEYS FOR DEFENDANTS Dated: 410095.1 WILLIAM M. BREEN and IN THE COURT OF COMMON PLEAS SUSAN E. BREEN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 09-5838 CIVIL TERM CARROL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants AMENDED COMPLAINT 1. Paragraph 32 shall be stricken. 2. The second cause of action shall be amended to state only "trespass." OF THE 2009 NOV 24 P I : 07 CUM U?4 4` kA * FUD-C) 7CEn AR/ `? ?.? ?? 111 1• ?? PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. X? for trial without a jury. ------------------.---------------------------- CAPTION OF CASE (entire caption must be stated in full) William M. Breen and Susan E. Breen, his wife, PENNSYLV" (check one) X? Civil Action - Law ? Appeal from arbitration (other) (Plaintiff) VS. Carrol Tracey, Elizabeth Myers, and Barry Shoff The trial list will be called on and Trials commence on (Defendant) Pretrials will be held on vs. (Briefs are due S days before pretrials No 09-5838 Civil Term Indicate the attorney who will try case for the party who files this praecipe: Lee C. Swartz Indicate trial counsel for other parties if known: Karl E. Rominger This case is ready for trial. Date: A "_!s,., ? a- o ?. a-;. ? J Signed: Print Name: Lee C. Swartz Attorney for: Plaintiffs a5 0o PQ ATT'? " ay e7 9g9 WILLIAM M. BREEN AND SUSAN E. BREEN, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CARROL TRACEY, ELIZABETH MYERS AND BARRY SHOFF, DEFENDANTS 09-5838 CIVIL TERM ORDER OF COURT -, , `L "; AND NOW, this _ ?G1 day of August, 2010, a civil non-jury trial shall commence at 9:30 a.m., Wednesday, November 3, 2010, in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, -,- Lee C. Swartz Esquire For Plaintiffs Karl E. Rominger, Esquire For Defendants Albert H. Maslan , J. Court Administrator :saa !'E S .Halt g 3 l lU n _1 "' WILLIAM M. BREEN AND SUSAN E. BREEN, PLAINTIFFS V. CARROL TRACEY, ELIZABETH MYERS AND BARRY SHOFF, DEFENDANTS AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-5838 CIVIL TERM ORDER OF COURT 4? day of September, 2010, a pretrial conference shall commence at 3:00 p.m., Friday, October 1, 2010, in chambers. By the Court, ee C. Swartz, Esquire For Plaintiffs ,,-Ka'rI E. Rominger, Esquire For Defendants Albert 14. Masland, J. 7 Court Administrator , cI :saa c' rTJ ?. J Tl c WILLIAM M. BREEN AND SUSAN E. BREEN, PLAINTIFFS V. CARROL TRACEY, ELIZABETH MYERS AND BARRY SHOFF, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-5838 CIVIL TERM ORDER OF COURT AND NOW, this S day of September, 2010, the pretrial conference currently scheduled for October 1, 2010, is cancelled and shall now commence at 3:30 p.m., Wednesday, October 6, 2010, in chambers. By the Court,. ,,?Lee C. Swartz, Esquire For Plaintiffs ,,,-K-a-rl E. Rominger, Esquire For Defendants Court Administrator -. saa ?r tES't?4cl. l J Albert H. Maslan , J. I y? J WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs v. CARROLL TRACEY, ELIZABETH MYERS, and BARRY 5HOFF, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL~NIA CIVIL ACTION -LAW ~ ~' =G'ri _'~ ~ © j-'~l { NO.: 09-5838 -CIVIL TERM :~y-y~ ~w~.y~ _~. - • h ~.. ' MOTION FOR SCHEDULING ORDER & CASE MANAGEMENT PLAN AND NOW, comes, Carroll Tracey, Elizabeth Myers, and Barry Shoff, by and through their counsel, Karl E. Rominger, Esquire, and in support of their request, state as follows: 1. This matter is not ready for trial. 2. Even on this day, a Surveyor appeared on the subject property(s) and took measurements. 3. No deposition has been completed, and Defendants wish to depose the Surveyors, and Plaintiff(s). 4. Summary Judgment is likely to remove some or all of Plaintiff's claims. 5. Counsel is mindful that completing this matter is in both parties best interest. 6. Counsel has thus suggested a firm case management schedule similar to those employed in the Federal Courts here in the Middle District, by way of the attached proposed Order. WHEREFORE, Defendants request that this Honorable Court enter a scheduling Order as proposed, allow Defendant's to complete discovery, and file dispositive motions. Respectfully Submitted, Rominger & Associates Date: r Kazl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs v. CARROLL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Answer to Complaint upon the following by depositing the sam~ a in the LJ~n' /~ 'l, first class, postage ~---' l/' prepaid, addressed as follows: ~~~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.: 09-5838 -CIVIL TERM Lee C. Swartz, Esquire TUCKER ARENSBURG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108 Respectfully Submitted, Rominger & Associates /~ / iU j/, Date: v ~ ~ v/' ~( l/ _ Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants i WILLIAM M. BREEN AND SUSAN E. BREEN, PLAINTIFFS V. CARROL TRACEY, ELIZABETH MYERS AND BARRY SHOFF, DEFENDANTS AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-5838 CIVIL TER ORDER OF COURT ~~ day of October, 2010, management conference, IT IS ORDERED: c~ ~ ~ ~:~ r.+ ~ -~ ~ ` ' ~ ~ --~ ~ c ; r s ~ 8 ~ ~= ~ y~ V . v , ~ ~, ~ followingcas~: ~ ' -~-~ ~~ ,~, M ~- 1. All written discovery shall be propounded within ten (10) days of the date of this order, and answered or objected to within thirty (30) days of this order. 2. All depositions of the parties shall be completed within forty-five (45) days of the date of this order. 3. Plaintiffs shall produce any and all expert reports within forty-five (45} days of the date of this order. 4. Defendants shall produce any and all expert reports within twenty (20) days of receipt of plaintiffs' expert reports. 5. Summary judgment or other dispositive motions shall be filed within thirty (30) days of the production of plaintiffs' expert reports. 6. Counsel shall be available for a telephone status conference at 8:45 a.m., Wednesday, December 8, 2010. 7. Anon jury trial shall commence at 9:00 a.m., Monday, February 28, 2010. Counsel and the parties shall be available for this matter through Wednesday, March 2, 2010, in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, ~/ Albert H. Masland, J. Lee C. Swartz, Esquire For Plaintiffs •. °_~ Karl E. Rominger, Esquire For Defendants / Court Administrator :saa WILLIAM M. BREEN AND SUSAN E. BREEN, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CARROL TRACEY, ELIZABETH MYERS AND BARRY SHOFF, DEFENDANTS 09-5838 CIVIL TERM ORDER OF COURT AND NOW, this Z day of December, 2010, following a status conference with counsel, and it appearing that the pre-trial discovery is progressing as planned, a pre-trial conference is scheduled for Wednesday, February 16, 2011, at 8:00 a.m., in Courtroom Number 5. Pre-trial memorandums are due in chambers by Friday, February 11, 2011. The non-jury trial is currently scheduled to commence at 9:00 a.m., Monday, February 28, 2011 and continue through Wednesday, March 2, 2011, in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Albert H. Masland, J. /Lee C. Swartz, Esquire For Plaintiffs arl E. Rominger, Esquire For Defendants :saa ,?-6f rnatLL v / /11 _.., _.. -1 O r -T1 •~? 7. =:= n _ Q ? WILLIAM M. BREEN and IN THE COURT OF COMMON PLEAS OF SUSAN E. BREEN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW - ; V. NO.: 09-5838 - CIVIL TERM- ; -r, CARROLL TRACEY, ELIZABETH r ? ? MYERS, and BARRY SHOFF, Defendants ?F l -TJ . MOTION TO DISMISS LAND USE ISSUES / BORDER DISPUTE FOR L k OJ6 , , SUBJECT MATTER JURISDICTION r. 3 .s AND NOW, comes Carroll Tracey, Elizabeth Myers, and Barry Shoff, by and through their counsel, Karl E. Rominger, Esquire, and in support of their Motion, avers as follows: 1. It appears there is a discrepancy between the several surveys mentioned in Plaintiff's experts report and the descriptions on the various deeds that were conveyed in this case. 2. It is possible that some of the land upon which plaintiff seeks a judicial order may be the unconveyed lands of the original grantors of the deeds from the subdivision, and or may have been conveyed to others. 4. To the extent that the Court is going to adjudicate a trespass and/or be asked to clarify property lines, the rights of the aforementioned person(s) not made party to this suit will be effected. 5. It is clear from Pennsylvania law that civil actions must include all essential parties whose rights may be at stake or interest. 6. Plaintiff has failed to plead or include these essential parties. 7. This affects the Court's subject matter jurisdiction and this opposition can be raised at any time. WHEREFORE defendant respectfully requests that this Honorable Court dismiss this action for lack of subject matter jurisdiction as to trespass or the setting of any boundary or property lines. Date: Ll L G ?? Respectfully Submitted, Rominger & Associates Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs V. CARROLL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 09-5838 - CIVIL TERM CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Motion to Dismiss for Lack of Subject Matter Jurisdiction upon the following via facsimile and by depositing the same in the United States Mail, first class, postage prepaid, addressed as follows: Lee C. Swartz, Esquire TUCKER ARENSBURG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108 Facsimile (717) 232-6802 Date: C cU Z Zd ?? Respectfully Submitted, Rominger & Associates 07- Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants WILLIA M. BREEN AND SUSAN E. BREEN, PLAINTIFFS CARR L TRACEY, ELIZABETH MYER AND BARRY SHOFF, EFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA rn Ir"n - r Q i 0 09-5838 CIVIL TERM xo -0 - ck-n 3y s 5 M 5 z IN RE: ADJUDICATION trial, IT INTERIM _ORDER OF COURT ,'7 T1.11 D NOW, this , 5'n day of June, 2011, following a two-day bench IS ORDERED AND DIRECTED as follows: 1. Plaintiffs' claims for conspiracy, false arrest and malicious use and abuse of process are DENIED and a verdict is entered in favor of Defendants. 2. Plaintiffs' nuisance claims are DENIED and a verdict is entered in favor of Defendants. 3. Plaintiffs' claim for trespass is GRANTED and, in the absence of a boundary agreement between the parties, Defendants are directed to remove those sections of their fence that encroach upon Plaintiffs' property within 60 days of the final order of court, which shall set forth the boundaries of the property. Defendants are not directed to remove those portions of macadam on their access road which encroach upon the Plaintiffs' property at this time. However, when improvements or repairs are made to the access road, Defendants shall ensure that any macadam CIVIL TERM encroaching on Plaintiffs' property, as determined by the legal description hereafter set forth, is removed. 4. Plaintiffs' action to quiet title is GRANTED. A legal description shall be prepared by Hartman & Associates, Inc. in accordance with their survey of 1986 and the calculations set forth in Plaintiffs' Exhibit A-2. It appearing that the submitted version of this description contains at least one typographical error, Plaintiffs shall verify the correctness of the description and resubmit it to the court within 10 days of this interim order. After entry of a final order of court, Defendants shall be forever barred from asserting any right, lien, title or interest in the land inconsistent with this legal description. Furthermore, any plan or survey prepared for the Defendants that is inconsistent with Plaintiffs' legal description is declared to be invalid. 5. No further relief is granted to either party. By the Court, Albert H. Masland, J. Lee C. For Pla rtz, Esquire Karl E. gminger, Esquire For Def ndants :saa eop. es htia . Joel l? ?3o/ir -2- WILLIA M. BREEN AND SUSAN E. BREEN, PLAINTIFFS CAR IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-5838 CIVIL TERM IN RE: ADJUDICATION OPINION AND INTERIM ORDER OF COURT M L TRACEY, ELIZABETH AND BARRY SHOFF, I, J., June 30, 2011:-- ough Abraham Lincoln was a wartime president, his speeches and writingsl constantly appealed to "our better angels." Perhaps, for the lawyer and litigant, Lectu re is no better example of this principle than his Notes For A Law dated July 1, 1850, in which he stated: Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.' as opinion ne 'Ab http court is not suggesting that the lawyers or litigants in this matter failed kers or neighbors. Rather, we suggest that no one will find this order to be salutary. Rarely are there winners in litigation between , and this case is no exception. Lincoln's Notes for a Law Lecture, from Abraham Lincoln Online, case.netins.net/web/creative/lincoln/speeche&4awlect htm. 09-583$ CIVIL TERM pon assignment of this matter, and in allotting time for the trial, our note to staff Otated "this will take at least one-half day and perhaps one-half year ... it will suroly take one-half year off my life." That note was not intended to be a comicalI self-fulfilling prophecy, but rather a recognition of the difficulty inherent in neighborhood disputes. Nor, do we offer that assessment to garner sympathy -- our paid is short-lived and shallow compared to that of the litigants. As deep as their deop'air appeared in court, the findings sought by each side would cut far deeper than necessary. Therefore, we have endeavored to limit our findings and concluslohs to those that clean the wound. Whether it heals in the ensuing years is beyond our charge. Findings of Fact 1. The Parties 1. P William M. Breen and Susan E. Breen are adult individuals and husband and wife residing at 107 Glendale Drive, Mechanicsburg, nia 17050. 2. Defendants Carrol Tracey and Barry Shoff are adult individuals residing at 104 1pI'endale Drive, Mechanicsburg, Pennsylvania 17050. 3. Defendant Elizabeth Myers, the mother of Ms. Tracey, is an adult individual residing at 117 Glendale Drive, Mechanicsburg, Pennsylvania 17050. 4. The Parties reside in Silver Spring Township in adjoining properties. -2- CIVIL TERM II. Procedural History 5. On august 25, 2009, Plaintiffs initiated a lawsuit against Defendants which incl ded the following counts: . Conspiracy, false arrest and malicious use and abuse of process; Trespass; Public and private nuisance; Action to quiet title. 6. On toe conspiracy count, Plaintiffs seek, inter alia, monetary damages incl ing punitive damages for intentional infliction of emotional distress and hum liation. 7. On toe trespass count, Plaintiffs seek the removal of any pavement or fence plac d upon their property by the Defendants and for any improper use of Plaintiffs' property. 8. On toe nuisance count, Plaintiffs seek to enjoin the Defendants from ope ting ATVs and dirt bikes, operating their outside woodstoves, operating a do kennel and creating unsanitary conditions that cause foul odors from the cogs to come onto the Plaintiffs' property. 9. On toe quiet title count, Plaintiffs seek a determination that the title to the prop rty is in accordance with the survey prepared for the parties on January 30, 978 and consistent therewith they seek a bar on Ms. Tracey from any right, title or interest inconsistent with that survey. -3- 09-5838 CIVIL TERM 10.Afte? several months of preliminary wrangling, Defendants filed their answer on ay 7, 2010. 11. Plaintiffs filed a praecipe listing the case for trial on August 20, 2010. 12. The court issued orders scheduling a non jury trial for November 3, 2010 with a pr trial conference on October 1, 2010. 13. The retrial conference was rescheduled to October 6, 2010, at which time the ourt set forth the timeline for completing discovery and filing expert repo s and/or motions and rescheduled the trial for Monday, February 28, 201 14. A orday bench trial, including an observational visit to the properties with cou sel, was held on February 28, 2011 and March 1, 2011. 15. At the conclusion of the trial, the court directed the parties to submit proposed findings of fact and conclusions of law, which were received from the laintiffs and Defendants on March 21, 2011 and April 11, 2011 ly. III. The Properties and Surveys 16. In 1978 the Breens acquired a 40 acre tract of property located in Silver Spri g Township at the aforesaid address on Glendale Drive. 17. At t e time of the purchase of the property, in order to gain access from Glen ale Drive, the Breens also purchased an L-shaped strip of property -4- 09-5838 CIVIL TERM ately 50 feet in width extending 318.68 feet northwesterly from dale Drive and then proceeding westwardly another 728.27 feet.2 18. They Breens constructed a house on the property and moved in on r of 1978. Also located on the property is a chicken shed, horse a garage and implement sheds. 19. They northern boundary of the Breen property is shared with Carl and Elizabeth Myers who purchased their property in 1946. 20. In 1996, the Myers conveyed to Ms. Tracey a home situated on ately one acre, which constitutes the eastern boundary of the Breen rty. 21. They first relevant survey of the properties was performed for Donald C. cr by Whitock & Hartman because of a dispute between the Myers and a W Houck, who owned the cabin which eventually became the property of Ms. Tracey. 22. A s cond survey was done by Whitock & Hartman in 1978 at the insistence of th bank at the time of the Breens purchase of the property. 23. In 1 86, a survey was conducted by Whitock & Hartman, at the time when Carrot and Elizabeth Myers purchased the property currently owned by Ms. Traclev. 2 Althou h referred to throughout the proceedings and herein as a right-of-way, it is not a easement but is owned by the Breens. -5- CIVIL TERM 24. In 2 07, Light-Heigel & Associates, Inc., (Light-Heigel) conducted a survey for t e Myers and Ms. Tracey. IV. Conspiracy, False Arrest and Malicious Use and Abuse of Process 25. On ay 27, 2008, Mr. Breen went to the Silver Spring Township Office and was informed that Ms. Tracey had filed a plan at the Courthouse regarding her Oroposed kennel operation. 26. In the evening of May 27, Mr. Breen walked down through his wife's garden look ng for the iron rebar which purportedly signified the northwest point on the -shaped strip of property at which the Breen, Myers and Tracey properties met. 27. While Mr. Breen searched for the rebar on all fours Ms. Tracey's dogs began to b4rk causing her 15-year-old son, Nevin, to come out of the house and Mr. Breen. 28. Nevin called his mother in a "panic" on his cell phone and she arrived at the hou4e' shortly thereafter. 29. In r s'ponse to Ms. Tracey's call to the Silver Spring Township Police, Officers Lindsay and Jenkins arrived at the property. 30. Ms. Tracey requested that the officers take action and may have suggested that they "arrest" Mr. Breen for trespassing on her property. 31. They officers questioned Mr. Breen as to whether he was aware he was ing on the property and harassing Nevin Tracey and the dogs. -6- 09-5838 CIVIL TERM 32. After a brief and apparently heated discussion, in which "the officer insisted I was guilty," Mr. Breen asked the officers to leave his property. Before Bre( 33. On whi( pror 34. A cl 2001 with 27, 35. Foil and Ass( purs , Officer Lindsay told Mr. Breen "I'm going to cite you," to which Mr. responded "cite me!" 30, 2008, attorneys for the Defendants sent a letter to Mr. Breen advised him, among other things, not to enter upon the Defendants' or he would be considered as a defiant trespasser. on was filed by the Silver Spring Township Police on or about June 5, , 3 with Magisterial District Judge Thomas Placey charging Mr. Breen summary offense of defiant trespass regarding the incident on May g a hearing on the citation that was held on September 15, 2008, which John Clark, a professional land surveyor with Hartman & testified for Mr. Breen, Judge Placey issued a Protective Order to Title 18 Section 4954 which directed the parties as follows: (1) Mr. Breen and Mr./Ms. Tracey may have contact via counsel or through neighborhood dispute settlement or like services. (2) Otherwise, above persons are not to have direct/indirect contact (3) The above persons are not to contact, move or adjust the currently set survey pins, nor shall they direct or permit others to do so, 3 Pl.'s & No. 62. -7- CIVIL TERM (4) Upon completion of NDS service protective order vacated, without regard to outcome of the service. (5) This order effective for 90 days unless terminated earlier by completion of #4. (6) Violations of this Order are to be reported to Silver Spring Township Police, (717) 697-0607.4 36. On pecember 16, 2008, after the expiration of the protective , Judge Placey dismissed the citation.5 37. Mr. Breen was concerned about the ramifications of this citation to his employment at the Navy Ships Parts Control Center (SPCC). 38. Mr. Preen had been employed at SPCC since July 20, 1982 and was engoged in classified work that required a security clearance. 39. Mr. Preen informed several friends and colleagues of his concern because of the Oharge that he had "harassed a child." 40. A co-worker at SPCC, Larry Joe Hall, described Mr. Breen as being "obsessed over the incident" and that "it got worse as it went on." 41. Mr. Hall recalled Mr. Breen stating "the police officer was nasty to me." 42. None of the witnesses for Plaintiffs recalled the details of the charges; r, all related that Mr. Breen was upset. 43. There were no adverse employment consequences incurred as a result of the Oummary charge and Mr. Breen retired from SPCC in July, 2010. ' Pl.'s ESC. No. 77. 5 Pl.'s ESC. No. 62. -8- 09-583 CIVIL TERM V. Public and Private Nuisance i A. Noise (ATVs and Dirt Bikes) 44. Mr. Breen kept a diary in which he cataloged 123 incidents between June 200 and May 2010 during which one or more ATVs or dirt bikes were operated on Defendants' property. 45. The operation of these vehicles was extremely bothersome to the Breens. 46. The vehicles were usually operated by the teenage sons of Ms. Tracey, Nevi and Nathan, and occasionally by Mr. Shoff. 47. The Breens felt that "no matter where we went, as soon as we got back alon comes the four-wheeler ripping down along the fence." 48. The vehicles were operated in all types of weather and conditions, including rain, snow and mud. 49. The vehicles were almost always operated during daylight hours. 50. On une 21, 2008, the Breens had a picnic, which was attended by several friends including, Heather Brinker, Debra McNemar and Dorothy McNickels, all o whom testified that two ATVs were operated in a manner that created "a lot o racket" and dust and made it difficult for the guests for enjoy the picnic. 51. Ronald Crandy of 134 Willow Lake Drive, Carlisle, whose property borders the western edge of the Breen property, testified that when he was outside his hous he "could hear [the four-wheelers] all the time from Tracey's house." 52. Mr. randy had an earlier conflict with the Defendants regarding an alleg tion of hunting in a safety zone. -9- CIVIL TERM 53. Ralph Thrush, III, a financial planner for the Breens heard the four-wheelers, i0h he characterized as loud and bothersome, on three out of six occasions in 2010 when he visited the Breen property. 54. Tin4 K. Snell of Spring Grove, Pennsylvania testified that when she spoke with the Breens on the phone on one occasion, she could hear the noise of ATVO in the background. 55. Ms. Tracey was never notified that the ATVs were bothersome by the Breens or b? their attorney in 2008 or 2009. 56. Ms. Tracey testified that if she had been told on June 21, 2008, that the Breens and their guests were annoyed by the ATVs she could have told the kids knot to ride that day. 57. Ridi g ATVs is a major interest for Ms. Tracey's teenage sons, especially for Nath n, the youngest. B. Odor (Dogs and Woodstove) 58. Sine 1992, Ms.Tracey raised Newfoundlands and Mastiffs on the property, which she began selling in 1993. 59. Afte losing her job in 2001, Ms. Tracey "ramped up" the breeding business, whic at that time involved primarily German Shepherds. 60. As f the hearing, Ms. Tracey had sixteen dogs on her property. 61. The refuse from the dogs is recycled along with the excrement from the six hors s, one donkey and three emus owned by Ms. Tracey. -10- 09-5838 CIVIL TERM 62. The Breens have one horse and have had chickens, emus and a pot-bellied pig. 63. In a dition to producing excrement, the dogs also produce noise and, according to Ms. Tracey, "bark when you go up the lane," something obs rued by the court during its view of the property. 64. Ms. racey's desires to move the dogs up towards the Myers' house, if and she receives approval for the kennel (which has been built) from the town nip. 65. Afte a hearing on October 4, 2006, at which the Breens opposed Ms. racey's request for a variance, the Silver Spring Township Zoning Hea ng Board (the Board) denied the request. 66. On r about December 14, 2006, Ms. Tracey appealed the decision to the Cou of Common Pleas in an action docketed to 06-7128 Civil Term.fi r the Township nor Ms. Tracey have attempted to move the litigation forward. 67. The Breens have "no problem" with a kennel near Mrs. Myers' home as long as tho Breens do not hear or smell the dogs and as long as the Defendants comply with the driveway requirements. 68. Although the decision of the Board appears to have been based primarily on the I t size and proximity with the owners, the parties testified to the need for Pl.'s Ex[ No. 64. -11- CIVIL TERM Ms. Tracey to have a wider driveway, which would require her to cut down tree on her property or acquire land from the Breens. 69. In July or August of 2008, Ms. Tracey and Mr. Shoff installed an outdoor stove on their property at a cost of $8,000 to $9,000 because their ?r woodstove was inadequate. 70. The 113reens also own a woodstove. 71. Although both the Tracey home and Myers' home have outdoor woodstoves, the reens chief complaint concerns the Tracey stove, because it is used thro ghout the year to provide hot water. 72. Although not definitively set forth in the testimony, based on the surveys and our View, the Breen house lies between 250 and 300 yards due west of the Tradev woodstove. 73. Ms. Tracey and Mr. Shoff insist that they burn the same wood outdoors that they used to burn indoors; however, the Breens insist that the smell emanating from the stove comes from plastic or trash. 74. On April 2, 2011, Officer Sabadish of the Silver Spring Township Police received a 911 call about a "smoke" complaint to respond to the Breen property. 75. Up n his arrival, Officer Sabadish noted the smell of something other than wood, but acknowledges it could have been trash burning in a backyard, which is presumably permitted in Silver Spring Township. -12- 09-58381 CIVIL TERM 76. Not surprisingly, the parties cannot agree on the direction of the wind, with the reens insisting that it comes from the north, northeast east and whereas the Defendants insist the winds are the so-called ing westerlies." 77. The Tracey's stove is filled twice a day on cold days and, according to Ms. , produces a fair amount of smoke when it is first filled but hardly ing after it reaches the ambient temperature. 78. The Defendants may occasionally burn green wood, which produces more VI. Trespass and Quiet Title 79. Ja s R. Skonezney has been employed by Whitock & Hartman (now Hartman & Associates and hereafter referred to as "Hartman") since of 1982. 80. Mr. pkonezney "worked up through the ranks" and has been the chief of the surveying crew for 20 years. 81. Mr. konezney is not a licensed professional surveyor, having taken the exam but failed to pass. 82. Ove? the thirty years of his experience, Mr. Skonezney has been involved with Jhe subject properties a few times. 83. Usin the survey introduced as Plaintiffs Exhibit A-2, (the Worksheet) Mr. Skon zney determined that the fence depicted in the photographs marked as -13- CIVIL TERM Plaintiffs' Exhibits 5-23 "clearly encroached [at] various distances" along the I north side of the Breen's 50 foot L-shaped right-of-way. 84. The wooden stakes with red flags depicted in Plaintiff's Exhibits 5-23 are at loc4ons where Mr. Skonezney placed iron pins approximately 30 years ago. 85. Mr. Preen testified that the aforesaid fence was erected for Ms. Tracey by T.E.. Installations, the same company that erected a fence contemporaneously on the Breen property. 86. Ms. Tracey informed T.E.L. Installations to follow the pins which ran between the reen and Myers properties, north of the Breen's driveway. 87. Whon' the fence was erected, Mr. Breen did not know or care that it was parti Illy on his property because "we were friends - I took their word." 88. Mr. Breen did not learn that the fence was on his property until August of 200 89. Mr. reen testified to a possible encroachment on the eastern side of the prop rty where the Defendants placed macadam on the driveway/access road in 2004-2005. 90. Mr. reen said the encroachment of the macadam varied from a couple of inch$s to four to five feet. 91. Mr. reen "knew there was a problem [with the macadam] but didn't want to start la war." 92. Davo W. Downey has been employed since 1972 with Hartman. -14- CIVIL TERM 93. Mr. Downey was licensed in 1991 by the Commonwealth of Pennsylvania, of Professional Occupational Affairs as a professional land surveyor and maintains his license to this day. 94. Mr. (Downey has reviewed all the relevant surveys and "a large amount of regarding the Breen, Tracey and Myers properties. 95. Mr. Downey has also surveyed lands to north, east and west of the subject rties, including the Mechanicsburg Men's Club property which is on the southern side of the Breen's right-of-way. 96. In r#sponse to defense counsel's suggestion that there was a gap in the properties which also affected the Mechanicsburg Men's Club, Mr. Downey ly asserted that all the tracts were contiguous. 97. They Worksheet is the work product of Mr. Downey. 98. Mr. powney has been involved with all of the Hartman surveys of the properties, including the 1986 survey, which was prepared for the Myers and the Breens. 99. The only complaint Mr. Downey received from Mrs. Myers regarding the 198q survey had to do with the "Garrick" property, which was located north of the racey property. Mrs. Myers did not have any complaints regarding the poin along the Breen property. 100. he northern most line along the Breens' L-shaped property according to the I as 7, lartman surveys is 728 feet. Whereas the Light-Heigel survey depicts it 19.64 feet. -15- 09-5838 CIVIL TERM 101. r. Downey opined that the Light-Heigel survey improperly used iron reba s whereas Hartman used original monuments, such as stone piles. 102. he accepted "survey boundary hierarchy" recognized by professional land surveyors ranks original monuments, such as stone piles, highest and rank distances lowest in terms of preferred means of setting a boundary.' 103. r. Downey opined that the Light-Heigel surveyors relied on pins "that wer n't there when we did [our survey]." 104. Mr. Downey asserted that the Light-Heigel survey "was based on what they ? oiund, but it doesn't make what they found good." 105. ?r` Downey met with the Light-Heigel surveyors and had the understanding that they were going to change their survey. 106. No, one testified from Light-Heigel. 107. efendant's expert, Mark Romeo, a professional land surveyor for 16 year , met with representative of Hartman and Light-Heigel. 108. r. Romeo noted that both Hartman and Light-Heigel used "sound prac ces" and could not say that either survey was incorrect. 109. r. Romeo noted that Hartman used original monuments in setting the between the easterly line of the Breen property and the westerly line Of Myers.8 ' PI.'s Ex[ No. 74. ' Def.'s llx. No. 4. -16- 09-583 CIVIL TERM 110. r. Romeo noted that some evidence that Hartman relied upon was no longer intact when Light-Heigel did their survey. 111. Mr. Romeo noted that only the Light-Heigel survey "showed inco sistences." 112. Mr. Romeo noted that only the Light-Heigel survey created a gap between the Breen and Tracey properties. 113. The Decree Nisi entered by the Honorable George E. Hoffer on April 21, 19813, is not dispositive of the boundary issues in this dispute.9 VII. Relationship of the Parties 114. When the Traceys moved to the property, they had a very close relat onship with the Breens. 115. Mrs. Breen testified that she loved Nevin and Nathan Tracey "very much and still do." 116. The Breens close relationship with the boys was also depicted in Plaintiffs Exhi it 75, which included numerous photos of the Breens and the boys interacting. 117. The relationship began to change in the early 2000s when some heavy equi rrient that was used on the Tracey property backed up onto the Breen property causing ruts. 9 Def.'s lix. No. 3. -17- CIVIL TERM 118. l he decision in 2006 of Ms. Tracey to move the kennel near Mrs. Myers' hom? and the resulting proceedings with the Zoning Hearing Board ultimately the party's relationship, and gave rise to the instant litigation. 119. Ws. Breen noted, regretfully, that she is "very sorry it came to this," and Mr. Breen as having "a big wound that is festering." 120. Tie parties did not use the services of Neighborhood Dispute Settlement as suggested by Judge Placey. VIII. Discussion is no coincidence that we ended our findings by referring to the relationship of the parties. We cannot help but think that had they spent more time focusing on the pictures in Plaintiffs Exhibit 75 and less time on the plethora of other exhibits, this matter would not be before us. Unfortunately, the time for mediation has passed and we must fashion a judgment with the tools we are given. 10 doing so we turn first to the incident that not only gave rise to the cause of action for conspiracy, false arrest and malicious use and abuse of process, but also wO the decisive blow to the parties' relationship. mere act of calling the police and saying "arrest him" after receiving a frantic 411 from one's teenage son, who sees a neighbor crawling in the bushes with a chorus of dogs in the background, does not constitute malicious use and abuse o? process. The actions of Ms. Tracey did not cause a criminal proceeding to be initiated against Mr. Breen. More likely than not, the anger Mr. Breen disp I in his interaction with the Silver Spring Police officers ensured that he -18- CIVIL TERM would be cited for the alleged trespass. Generally, when one tells an officer to "cite mo," one receives a citation. , do we find anything malicious in the fact that Defendants' attorney sent a boilerplate defiant trespass letter to Mr. Breen between the date of the and the date that the police filed the citation. The purpose of the letter was to Deep Mr. Breen off the Defendants' property and was not designed to cause him emotional stress, financial loss or harm to his reputation. Furthermore, the act of sending copies of the trespass letter to the police is a common manner of notifying the authorities that a warning has been communicated pursuant to 18 Pa.C.S. § 3503(b)(1). The letter was certainly not in furtherance of any conspiracy and did not cause the citation to be issued. ntiff made much of the dismissal by Judge Placey as a vindication of Mr. Bre n and a condemnation of Ms. Tracey. We disagree. Looking at the timeline between the hearing (9/15/08) and the decision (12/16/08) we surmise that Jud a Placey was providing a cooling off period for both sides. Once the 90 days expired without further incident, he was content to dismiss the action, as we would h ve done. found there was no conspiracy or unlawful arrest, we need not address infliction Plaintiffs claim for punitive damages for the intentional or negligent of emotional distress. We do not discount the genuineness of the Breens' motions; however, the genesis for their distress, cannot be placed solely a doorstep of their neighbors. -19- CIVIL TERM urning to the nuisance count, we note initially that the complaint focused solely o1h noise from the ATVs and dirt bikes and on the odor of the woodstoves and dons. With respect to both noise and odor, the claim of a public nuisance must fall. The testimony of one neighbor and several guests regarding ATV noise, does not transform the complained of nuisances into ones that affect the "community at large." Karpiak v. Russo, 676 A.2d 270, 274-75 (Pa. Super. 1996). Therefore, we turn to the Restatement (Second) of Torts Section 822 which provides the following regarding private nuisances: One is subject to liability for private nuisance, if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligence or reckless conduct, or for abnormally dangerous conditions or activities. excuse there is no claim that the Defendants acted negligently, we must determine' if their conduct was intentional and unreasonable. Moreover, we must determine if the invasion created "significant harm" pursuant to Restatement (Second) of Torts Section 821(F). Finally, we must also consider the community in which the alleged conduct occurred to determine "[i]f normal persons living in the community would regard the invasion in question as definitely offensive, annoying or intolerable ...." Russo, 676 A.2d at 273. With that , we will address the alleged conduct of the Defendants. r. Breen began cataloging the riding behavior of Nevin and Nathan in earnest Ofter he was cited for defiant trespass. Prior to that time, the Breens may -20- CIVIL TERM have boen annoyed by the noise from the ATVs; however, at that time it was generated by beloved neighbor boys. Once the citation was issued, the noise was no onger tolerable largely because it was created by the enemy. Our review f the 123 incidences of ATV riding10 indicate that relatively few were for an extended period of more than a few minutes (other than June 21, 2008, the day of t e picnic) and fewer still occurred in the twilight or evening hours. In 2009, the one full year of cataloging, the Breens were apparently bothered on 38 s. It appears the Tracey boys are more attracted to mud and snow than by a de4ire to harass and annoy. Their behavior is what one would expect from teenagers and does not strike us as outrageous." In fact, under the circumstances, we would expect teenage boys to ride their ATVs 365 days a year. Just as important as the timing of Mr. Breens diary is the fact that there was no t?estimony of the Defendants being asked to cease and desist, either directly ythe Breens or by their counsel. Perhaps, that would have been futile, but in the absence of a request and a refusal to comply, the court is reticent to deem teenage boys tearing up their own property a nuisance. Nevertheless, we 10 Pl.'s Ex. No. 63. " Mark Twain is credited with saying that when a boy reaches age 13 he should be place in a barrel with a hole in the top for food and water. And, when the boy reaches 6, you should plug up the hole. We will not plug the hole for the Tracey boys who are now approximately 18 and 16 respectively. Having progressed from soccer to ATVs, perhaps they are ready to progress from ATVs to more dangerous, though less noisy, hobbies like girls and cars. -21- CIVIL TERM admoni0h Ms. Tracey to more closely monitor the riding behaviors of her sons to ensure that neither the timing nor frequency of their rides are designed to or of causing annoyance to the Breens or any of their neighbors. h Plaintiffs did not include noise from the dogs in their nuisance claim, spbstantial testimony was received at trial. Had it been raised in the complaint; the evidence did not rise to the level of a serious annoyance which must be enjoined. Ms. Tracey has housed numerous dogs on her property since 2001, a0d, no doubt, they barked before the citation was issued on June 5, 2008. That moy'have amplified the noise to the Breens, but in the absence of more compelling testimony, it does not constitute a nuisance. To the extent that the Breens ?alve endured sleepless nights (which was not claimed with respect to the noise), a suggest it has more to do with the pain from broken friendships than noise from barking dogs. respect to the odor from the dogs, we note, as with the ATVs, the parties live in an agricultural area where "odors happen." Both parties have their share of? animals, though Ms. Tracey's dogs are above the norm. As such, to be by the odor while mowing and working outside or when it rains, strikes the cou as the price one pays for living in the country. Moreover, but for township zoning constraints, the plan of Ms. Tracey is to move the dogs to a location hat, conceivably, would be less annoying to the Breens. That does not strike th court as the behavior of someone who is vexatious. Just as the citation heightened the Breens' sense of hearing, it also heightened -22- i 9-583 CIVIL TERM their a calcu of smell. In fact, any movement by the Defendants was perceived as attack. The Defendants have not been good neighbors, but they are not that (designing. final complaint raised by the Breens under the nuisance count concern the smoke from the Defendants' outdoor woodstoves, with the primary culprit b ing the Tracey stove that is used throughout the year. We have no doubt that when the smoke travels west towards the Breen household, it is annoyino. Nevertheless, the use of woodstoves in rural areas is not unusual, which is borne out by the fact that ordinances regulating their use are becoming common place. It is sadly ironic that by calling Officer Sabadish to the stand to bolster t eir argument that Defendants are burning something other than wood in their sto es, Plaintiffs raised the court's awareness of how frayed the nerves of the Bre ns have become. Perhaps the saying, "you had to be there" applies, but it strikes us as excessive to call 911 to summon a police officer to your property to smell smoke. T e Defendants purchased the stoves in order to save money in heating their ho se, not to annoy the Breens. To the extent there is any smoke from the stoves, 4nd Plaintiffs Exhibits 28A-35 depicted no massive plumes, the Defenda ts' bear the brunt of it and, hence have a greater interest in having a "clean" urn. Although, this nuisance claim falls short, we urge the Defendants to comply v ith the township regulations regarding woodstoves in general and, in -23- i 09-5836 CIVIL TERM particulor, to refrain from burning therein any substance that might produce noxious) smoke. axing addressed the counts for which Plaintiffs did not meet their burden, we turn to those on which they did, namely, trespass and the action to quiet title. The determination of these issues is relatively straight forward; however, the circumstances of this case make their resolution anything but easy. respect to the boundary dispute, Plaintiffs presented unrebutted expert t?stimony on the location of their boundaries. Defendants' expert, Mark Romeo, was permitted to testify over the objection of Plaintiffs because they were no prejudiced, having had sufficient notice prior to trial of the existence of an expe? for Defendants, and, more importantly, the court viewed his testimony as nece sary in finding all relevant and probative evidence. Ultimately, Mr. Romeo served to confirm more than question the testimony of Mr. Downey and Mr. Sko eznev. we find that the surveyors from Hartman & Associates are the true exp?rts with respect to the subject properties, having surveyed the area for well ove( 50 years and credit their survey as correct. We conclude that the fence erected ?n behalf of the Defendants does in fact encroach on the Breen property, albeit in 0 relatively insignificant fashion. Furthermore, we find that the calculati ns set forth on the Worksheet (Plaintiff's Exhibit A-2) constitute the true and accurate boundaries for the respective properties. -24- 09-583$ CIVIL TERM , had the parties used the services of Neighborhood Dispute in 2008, as suggested by Judge Placey, a boundary agreement would have al eady been reached. In the absence of that, we are constrained to direct that Ha man & Associates, Inc., prepare a legal description for the Breen propert in accordance with the surveys entered into evidence at trial. 12 The Defendants shall recognize this legal description as providing the official, final and def nitive border for the properties and they shall be barred from asserting any right, lien, title or interest in the land inconsistent with that description. ants shall remove those sections of their fence that encroach upon the Breon's property. The Defendants shall not be required to remove the from the access road; however, if and when Defendant Tracey makes improvements to the access road in order to comply with any township related to her kennel or if Defendants otherwise improve or replace the acc ss road, such improvements shall be made to ensure that they occur solely o Defendants' land in accordance with the aforesaid legal description. ly, we enter the following order. INTERIM ORDER OF COURT NOW, this _ ate' day of June, 2011, following a two-day bench trial, IT IBS ORDERED AND DIRECTED as follows: 'Z Plaintiffs submitted a proposed order containing a legal description however we direct that it be reviewed and resubmitted. -25- CIVIL TERM 1. Plaintiffs' claims for conspiracy, false arrest and malicious use and abuse of process are DENIED and a verdict is entered in favor of Defendants. 2. Plaintiffs' nuisance claims are DENIED and a verdict is entered in favor of Defendants. 3. Plaintiffs' claim for trespass is GRANTED and, in the absence of a boundary agreement between the parties, Defendants are directed to remove those sections of their fence that encroach upon Plaintiffs' property within 60 days of the final order of court, which shall set forth the boundaries of the property. Defendants are not directed to remove those portions of macadam on their access road which encroach upon the Plaintiffs' property at this time. However, when improvements or repairs are made to the access road, Defendants shall ensure that any macadam encroaching on Plaintiffs' property, as determined by the legal description hereafter set forth, is removed. 4. Plaintiffs' action to quiet title is GRANTED. A legal description shall be prepared by Hartman & Associates, Inc. in accordance with their survey of 1986 and the calculations set forth in Plaintiffs' Exhibit A-2. It appearing that the submitted version of this description contains at least one typographical error, Plaintiffs shall verify the correctness of the description and resubmit it to the court within 10 days of this interim order. After entry of a final order of court, Defendants shall be forever barred from asserting any right, lien, title or interest in the land inconsistent with this legal -26- 09-5838 CIVIL TERM description. Furthermore, any plan or survey prepared for the Defendants that is inconsistent with Plaintiffs' legal description is declared to be invalid. 5. No further relief is granted to either party. By the Court, Albert H. Masland, J. Lee C. wartz, Esquire For Plai tiffs Karl E. ominger, Esquire For Def ndants :saa -27- WILLIAM M. BREEN and IN THE COURT OF COMMON PLEAS OF SUSAN E. BREEN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO.: 09-5838 - CIVIL TERM C a CARROLL TRACEY, ELIZABETH -0Z MYERS, and BARRY SHOFF, r co ?-C= rn Defendants car'- ?? ,=z -- Q {? DEFENDANT'S POST TRIAL MOTION -ate Q qc7 C' W 3> AND NOW, comes Carroll Tracey, Elizabeth Myers and Barry Shoff, by d T?Joum their counsel, Karl E. Rominger, Esquire, and in support of their Motion, avers as follows: 1. The trial court lacked subject matter jurisdiction to act because of the failure of plaintiffs to add an essential party. By way of further answer defendant Elizabeth Myers is a married individual and the parcels in question include her husband on the deed. To the extent that the court's order affects the property rights of Mr. Myers, the court was without subject matter jurisdiction to act. Therefore, the portion of the court order which declares the boundaries, and then subsequently declares the fence as a trespass, and which limits the use of the macadam roadway is avoid ab initio. Thus this court should withdraw or reconsider the order and state that it lacks subject matter jurisdiction to grant plaintiffs said relief. In the alternative the court should void such portions of the order in their entirety. 2. If the court did have subject matter jurisdiction to act (see above section) then the court erred in finding that the use of the macadam roadway requires all future improvements and repairs to be made on the lands now found by the court to be of Myers and Tracey, as the current right-of-way and macadam is part of a longstanding easement by estoppel and as such defendants retain the right to use the current roadway in perpetuity. 3. The court erred in only giving 30 days for defendants to remove the fence (assuming court has subject matter jurisdiction to act) insomuch as it was placed in good faith, no one had an issue with the trespass for many, many years, and it would be equitable under the circumstances to order that fence not be repaired or replaced, but as repairs become necessary or replacement becomes necessary that it be moved back on to the land of defendants. WHEREFORE, Defendant's respectfully request that this Honorable Court grant their post-trial motions. Date: 1 Respectfully Submitted, Rominger & Associates Karl ominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Defendant's WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs V. CARROLL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 09-5838 - CIVIL TERM CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Post Trial Motion upon the following by depositing the same in the United States Mail, postage pre-paid, via first class mail, addressed as follows: Lee C. Swartz, Esquire TUCKER ARENSBURG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108 Respectfully Submitted, Rominger & Associates Date: Karl ominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Defendant's r WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs V. CARROLL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 09-5838 - CIVIL TERM ORDER OF COURT e?l Il- n/ AND NOW, this day of 2011, upon consideration of the within Post Trial Motion a hearing is schedule for the JyV4 day of , 2011, at ?'00 o'clock A_.M., in Courtroom Number 5 , of the Cumberland County Courthouse, Carlisle, Pennsylvania. CLt.Q A )dy? Distribution: ,Cluj L J. Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 Lee C. Swartz, Esquire TUCKER ARENSBURG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108 ies m0:1 lei 7???oYB Mm z m z70 r- N Cm C- W cam. C, Tj a ?C) .TI WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs V. CARROL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants AS4 IN THE COURT OF COMMON PLE CUMBERLAND COUNTY, PENNSNIA r-?;^TYr CIVIL ACTION - LAW <a ?? x? NO. 09-5838 CIVIL TERM 5- C= E5 ter;"- PLAINTIFFS' ANSWER TO DEFENDANTS' POST TRIAL MOTION Denied. On the contrary, it is averred that there was no essential party to be added. The record and the expert's testimony accepted by the Court clearly show that the parties' boundary is contiguous and there is no evidence that any other party has any claim to the land of either the Plaintiffs or the Defendant. 2. Denied. On the contrary, it is averred that the Defendants neither pled nor proved any easement by estoppel or was any testimony produced at trial supporting such concept. 3. Denied. On the contrary, it is averred that the Court Order establishes the parties' boundaries and, as a matter of law, a finding that defense encroaches upon the Plaintiffs' boundary and there is no legal support for equitable encroachment. Furthermore, 30 days is adequate for replacement. WHEREFORE, Plaintiffs request that the Motion of the Defendants be dismissed without a hearing. Respectfully submitted, TUCKER ARENSBERG, P.C. B Y• (Lee C. Swartz Pa. Bar I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE AND NOW, this ? 9 4'14' day of July, 2011, I, Lee C. Swartz, Esquire, attorney for the within Plaintiffs, hereby certify that I have this dated served a copy of the within document by depositing a copy of the same in the United States Mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 Lee C. S(Wartz WILLIAM M. BREEN AND SUSAN E. BREEN, PLAINTIFFS V. CARROL TRACEY, ELIZABETH MYERS AND BARRY SHOFF, DEFENDANTS IN THE COURT OF COMMON PWAAOF-- CUMBERLAND COUNTY, PENP YLWA NPA MED C_ ?- r" -0rn `"rk 09-5838 CIVIL TERM = N) ORDER OF COURT AND NOW, this day of July, 2011, Plaintiffs' post-trial motion shall be considered by the court pursuant to the schedule set forth in our order of July 13, 2011, with respect to the Defendants' post-trial motion. By the Court, ,r Albert H. Masland, J. Lee C. Swartz, Esquire For Plaintiffs r Karl E. Rominger, Esquire For Defendants 1/0/11 :saa 5 WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs V. CARROL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 09-5838 CIVIL TERM pf. off- P doll Sub 2a P-?Y15c?tUa-n? a PLAINTIFFS' POST TRIAL MOTIONS 1. Motion for Judgment Notwithstanding the Verdict A. Plaintiffs move for the entry of judgment in their favor with respect to the false arrest and malicious use and abuse of process claims for the following reasons: 1. The verdict was against the weight of the evidence in that the charge of trespass was dismissed against the Plaintiff, William M. Breen. 2. The testimony fully supported a finding that William M. Breen did nothing to cause his arrest. 3. The Defendant Carrol Tracey admitted that she called the police officer to arrest the Plaintiff without sufficient knowledge to establish a trespass claim. 4. The evidence is sufficient to establish Plaintiffs emotional distress. B. Plaintiffs move for the entry of judgment in their favor with respect to the nuisance claims for the following reasons: 1. The denial of the claim is against the weight of the evidence. 2. The testimony with respect to the noise created by the vehicles is overwhelming and establishes a deliberate plan to annoy the Plaintiffs by waiting for them to be present. 3. The photographic evidence of the vehicle use and smoke is so graphic as to require a verdict in Plaintiffs' favor. 4. The Court erred in finding no effort by the Plaintiffs to ask the Defendant Tracey to have the boys desist when in fact the lawsuit was sufficient evidence requesting they desist and the conduct occurred more than 100 times after the suit was filed. 5. The Court erred in finding that the Plaintiffs called 911 and failing to apply sufficient weight to the testimony of the witnesses, including the police officer and erred in finding that there were not plumes of smoke. WHEREFORE, Plaintiffs request the Honorable Court to enter an order enjoining the use of motor vehicles at a time when they cause annoyance to the Plaintiffs, order the Defendants to cease burning any substance that might produce noxious smoke and to award damages for trespass to the Plaintiff, William M. Breen. TUCKER ARENSBERG, P.C. By: ?.<&-,tv Lee C. Sw rtz- Pa. Bar I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE AND NOW, this [q +k day of July, 2011, I, Lee C. Swartz, Esquire, attorney for the within Plaintiffs, hereby certify that I have this dated served a copy of the within document by depositing a copy of the same in the United States Mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 T 4 4?'r? Lee C. S rtz HBGDB:120836-1 020903-129350 WILLIAM M. BREEN AND SUSAN E. BREEN, his wife, PLAINTIFFS V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CARROLL TRACEY, ELIZABETH MYERS AND BARRY SHOFF, : DEFENDANTS 09-5838 CIVIL TERM ORDER OF COURT C rn? z rn 2 ? ?r r- a zy zo --i ..r AND NOW, this 14th day of November, 2011, Defendants shall file and serve a copy in the chambers of this judge a concise statement of errors complained of on appeal within twenty-one (21) days of this date. By the Court, Albert H. Maslan , J. Lee C. Swartz, Esquire For Plaintiffs Karl E. Rominger, Esquire For Defendants CP'ies II115(l? N C z q C 'Wi -v N Q W CD 1-1 rnr- "a M ;0= (n , =o C) -n :saa WILLIAM M. BREEN and SUSAN E. BREEN, his wife, V. Plaintiffs CARROL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 09-5838 CIVIL TERM M C. NOTICE OF CROSS APPEAL N N rV ?j _ F _? rr C)' 2-,? 17 Notice is hereby given that William M. Breen and Susan E. Breen file this cross appeal to the Superior Court of Pennsylvania from the Orders entered on the 30th day of June 2011 and the 12th day of October 2011, as appealed from by Defendants Carroll Tracey, Elizabeth Myers and Barry Shoff. These Orders have been entered in the docket as evidenced by the attached copy of the docket entry. Respectfully submitted, TUCKER ARENSBERG, P.C. By: t,! Le C. Swartz Pa. Bar I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: (717) 234-4121 Facsimile: (717) 232-6802 ATTORNEYS FOR PLAINTIFFS g y ?. 03 P't -'4 1 a'y S-9-3s " x.67&71 cly " led qo Setp jcv ??' WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Plaintiffs V. CARROL TRACEY, ELIZABETH MYERS, and BARRY SHOFF, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-5838 CIVIL TERM CERTIFICATE OF SERVICE I, Lee C. Swartz, Esquire, attorney for Plaintiffs, do hereby certify that a true and correct copy of the within Notice of Cross Appeal was served upon the following individuals on the below date, by placing same in the United States Mail, first-class postage prepaid, addressed as follows: The Honorable Albert H. Masland Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 November "),k, 2011 Cumberland County Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Official Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Lee .Swartz H BGDB:123384-1 020903-129350 WILLIAM M. BREEN AND SUSAN E. BREEN, his wife, PLAINTIFFS V. CARROLL TRACEY, ELIZABETH MYERS AND BARRY SHOFF, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 09-5838 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of November, 2011, Plaintiffs shall file and serve a copy in the chambers of this judge a concise statement of errors complained of on appeal within twenty-one (21) days of this date. By the Court, Albert H. Masla d, ?J?? Lee C. Swartz, Esquire For Plaintiffs C i ? D re Karl E. Rominger, Esqu For Defendants °- :saa -?M Ca N ? ?? ? mot,- h:? w Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Middle District November 28, 2011 RE: William M. Breen and Susan E. Breen, his wife Appellants V. Carool Tracey, Elizabeth Myers, and Barry Shoff 2043 MDA 2011 Trial Court Docket No: 09-5838 Civil Term Dear David D. Buell: Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior.court. state. pa. us zm o ? -- -A 2- , ., Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /alv Enclosure 4:31 P.M. Appeal Docket Sheet Docket Number: 2043 MDA 2011 Page 1 of 2 November 28, 2011 Superior Court of Pennsylvania Secure William M. Breen and Susan E. Breen, his wife Appellants v. Carool Tracey, Elizabeth Myers, and Barry Shoff Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: November 28, 2011 Awaiting Original Record Journal Number: Case Category: Civil Case Type(s): Civil Action Law ?REWFA Docket No / Reason Type 1969 MDA 2011 Related Same Record Below ?$Y! M ?LL Next Event Type: Receive Docketing Statement Next Event Due Date: December 12, 2011 Next Event Type: Original Record Received Next Event Due Date: January 23, 2012 Pit ?. Appellant Breen, William and Susan Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Swartz, Lee C. Bar No: 007258 Law Firm: Tucker Arensberg, P.C. Address: 111 N Front St Phone No: Receive Mail: Receive EMail PO Box 889 Harrisburg, PA 17108--0889 (717) 234-4121 Yes Fax No: (717) 232-6802 Yes EMail Address: Iswartz@tuckerlaw.com 4:31 P.M. Appeal Docket Sheet Docket Number: 2043 MDA 2011 Page 2 of 2 Superior Court of Pennsylvania Secure November 28, 2011 NS +N Appellee Carroll Tracey, Elizabeth Myers and Barry Shoff Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Rominger, Karl Ernst Bar No: 081924 Law Firm: Rominger & Associates Address: 155 S Hanover St Carlisle, PA 17013 Phone No: (717) 241-6070 Fax No: (717) 241-6878 Receive Mail: Yes Receive EMail: Yes EMail Address: karl@rominger.com 1# 1, Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 11/22/2011 Notice of Appeal 73.50 0.00 7 Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: October 12, 2011 Judicial District: 09 Documents Received: November 28, 2011 Notice of Appeal Filed: November 22, 2011 Order Type: Order Entered OTN(s): Lower Ct Docket No(s) :09-5838 Civil Term Lower Ct Judge(s): Masland, Albert H. Judge Original Record Item Filed Date Content Description Date of Remand of Record: None None d?14fiRY Filed Date Docket Entry / Representing Participant Type Filed By November 28, 2011 Notice of Appeal Docketed Appellant Breen, William and Susan November 28, 2011 Docketing Statement Exited (Civil) Middle District Filing Office William M. Breen, et al. V. Carroll Tracey, et al. IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 09-5838) No. 1969 MDA 2011 No. 2043 MDA 2011 Filed: November 30, 2011 ORDER The appeal filed at No. 1969 MDA 2011 and the cross-appeal filed at No. 2043 MDA 2011 are hereby CONSOLIDATED sua sponte and the parties shall proceed in accordance with Pa.R.A.P. 2136. Per Curiam superior Court of VenuOptbania Karen Reid Bramblett, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary November 30, 2011 RE: Breen, W. & S. v. Tracey, C. et al No. 1969 MDA 2011 Associated Case(s): 2043 MDA 2011 Consolidated Trial Court Docket No: 09-5838 Dear Attorney Rominger Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior, court. state. pa. us Enclosed please find a copy of an order dated November 30, 2011 entered in the above-captioned matter. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /ks Enclosure cc: Buell, David D., Prothonotary Masland, Albert H., Judge Lee C. Swartz, Esq. Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 AOPC 1013 Rev.11/30/2011 WILLIAM M. BREEN AND IN THE COURT OF COMMON PLEAS OF SUSAN E. BREEN, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V.,i x m'. CARROL TRACEY, ELIZABETH ?n€?_" rya MYERS AND BARRY SHOFF, DEFENDANTS 09-5838 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE CAF -3; APPELLATE PROCEDURE 1925 Masland, J., January 26, 2012:-- Before the court are the cross appeals filed by Plaintiffs, William M. Breen and Susan E. Breen, and Defendants, Carrol Tracey, Elizabeth Myers, and Barry Shoff. These appeals arise from a nonjury trial before the undersigned resulting in an opinion and interim order filed on June 30, 2011 and a final order filed on October 12, 2011. Subsequent to the court's verdict, both parties filed post-trial motions which were denied in part and granted in part. The instant appeals followed. Plaintiffs complain of the following matters on appeal: 1. The Court erred in dismissing Plaintiff William M. Breen's claims of Conspiracy, False Arrest and Malicious Use and Abuse of Process caused by the false information provided to the police by Defendant Tracey, resulting in the Plaintiff's arrest for trespass. 2. The Court erred in dismissing the Plaintiffs' claims of public and private nuisance both as to the Defendants' use of recreational vehicles creating loud and oppressive noise and the Defendants' burning of stoves which created foul and offensive odors and erred in failing to enjoin the conduct. 3. The Court erred in failing to order the Defendants to promptly remove their fencing and pavement which the Court found to be on the Plaintiffs' 09-5838 CIVIL TERM property and, rather, ordered the removal at the Defendants' convenience when replacement becomes necessary, which order is contrary to the Court's finding in favor of the Plaintiffs on their action to quiet title. 4. The Court erred in failing to award Plaintiffs' damages for encroachment onto Plaintiffs' property which caused erosion requiring Plaintiffs to make repairs at great expense and effort. 5. The Court erred in failing to award the Plaintiffs survey costs as a result of the Defendants' trespass upon and claim to Plaintiffs' property. 6. The Court erred in failing to award the Plaintiffs attorneys' fees required as a result of the Defendants' obdurate and vexatious conduct. PI. Concise Statement, filed December 8, 2011. Upon review, the court finds that all these issues were adequately addressed in the previously filed opinion announcing the judgment of the court, filed June 30, 2011 and are now incorporated herein. On the basis of that opinion, the Superior Court should affirm this court's verdict.' Defendants complain of two matters on appeal: 1. The trial court erred in finding that subject matter jurisdiction existed to issue orders as to the land boundaries, rights-of-ways, surveys, and plans, where a deed holder to the property in question, the husband of Elizabeth Myers; Carl Myers was not added as a party to the action. See Cumberland County Deed Book M-36 Page 613 (attached). The failure to attach an essential party deprived the court of subject matter jurisdiction to determine those issues, as Carl Myers was never made a party hereto. 2. The court erred in entering an order which effected the substantial rights of Carl Myers the husband of named defendant Elizabeth Myers, who is a deed holder to the land in question. Failure to attach essential party to private court of jurisdiction to act as to the land in this matter. A spouse is not joined by the filing of suit against the other. The Court also notes the Superior Court's order dismissing Plaintiffs' appeal for failure to comply with Pa. R.A.P. 3517, dated January 19, 2012. -2- 09-5838 CIVIL TERM Def. Concise Statement, filed Dec. 5, 2011. Defendants first raised these issues at the time of post-trial motions. As such, the court's previously filed opinion did not address the questions presented here. The court will address them now. At the outset, we note that the failure to join an indispensable party is a non-waivable defense and need not by pleaded. Pa. R.C.P. No. 1032(a). Generally, "in actions intended to affect the title to property which is either held or claimed by tenants by the entireties, both spouses are indispensable parties and must be joined." Miller v. Benjamin Coal Co., 625 A.2d 66, 68 (Pa. Super. 1993). However, the Court went on to state, Where a marriage continues to exist ... we perceive no reason for holding that one spouse cannot act as agent for the entireties estate in bringing an action to recover damages for injury to the entireties property as long as the action benefits both spouses and there is no evidence rebutting the presumption of authority to act. Id. We view the instant matter to be analogous. Defendants have been active participants throughout this protracted litigation. At all times they have been represented by counsel and never raised this issue regarding Mr. Myers until after the conclusion of a lengthy nonjury trial. In fact, when defense counsel did raise the question of an indispensable party, in a pretrial motion argued at the inception of the trial, it was done with respect to an adjoining landowner, the Mechanicsburg Men's Club, and not with respect to Mr. Myers. Furthermore, there has never been any indication that the -3- 09-5838 CIVIL TERM Defendant, Elizabeth Myers, did not have authority to act for the interests of both herself and her husband. As the Superior Court said in Miller, "[t]o set aside judgment at this late date, in the absence of evidence that Miller lacked authority to maintain an action on behalf of both spouses, would be an unconscionable exaltation of form over substance." Id. Although we recognize this court may distinguish between the authority to bring an action and the authority to defend an action, we submit that the same conclusion is appropriate here. For all these reasons, the Superior Court should affirm this court in all respects. By the Court, C r Albert H. Masla d, J. L . Lee C. Swartz, Esquire For Plaintiffs 41 Karl E. Rominger, Esquire For Defendants :saa -4- CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: WILLIAM M. BREEN AND SUSAN E. BREEN Vs. CARROLL TRACEY, ELIZABETH MYERS AND BARRY SHOFF 2009-5838 CIVIL TERM 1969MDA2011 2043MDA2011 The documents comprising the record have been numbered from No. 1 to 606, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 02/02/2012. Z41d WBuet, ono tary Alma Kostjer ac, Deputy An additional copy of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title RECORD F'LFO'N SUPERIOR COURT F.-?-n,? MIDDLE