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HomeMy WebLinkAbout09-7975MICHAEL L. BANGS, ESQUIRE I.D. #41263 429 SOUTH 18TH STREET CAMP HILL, PA 17011 (717) 730-7310 ATTORNEY FOR PLAINTIFF HEMPT BROS., INC. Plaintiff vs. CHARLES W. WINDOMAKER and PATRICIA A. WINDOMAKER, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 69-'lq'75 0,1\111-Tarro CIVIL ACTION - IN EQUITY NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 MICHAEL L. BANGS, ESQUIRE ATTORNEY FOR PLAINTIFF I.D. #41263 429 SOUTH 18TH STREET CAMP HILL, PA 17011 (717) 730-7310 HEMPT BROS., INC. ) IN THE COURT OF COMMON PLEAS Plaintiff ) OF CUMBERLAND COUNTY, PENNSYLVANIA VS. ) NO. 09- '7975 &?4 7-z,.- CHARLES W. WINDOMAKER and ) PATRICIA A. WINDOMAKER, his wife, ) CIVIL ACTION - IN EQUITY Defendants ) COMPLAINT AND NOW comes the Plaintiff, HEMPT BROS., INC., by and through its attorney, Michael L. Bangs, Esquire, and files the following Complaint in equity: 1. Plaintiff, HEMPT BROS., INC., is a Pennsylvania corporation with its principal place of business at 205 Creek Road, Camp Hill, Cumberland County, Pennsylvania, 17011 (hereinafter referred to as "Hempt") 2. Defendants, CHARLES W. WINDOMAKER and PATRICIA A. WINDOMAKER, are adult individuals who reside at 253 Pine Grove Road, Gardners, Cumberland County, Pennsylvania, 17324 (hereinafter referred to collectively as "Windomaker"). 3. Hempt is the owner of approximately eleven hundred eighty-two (1,182) acres located in Dickinson and South Middleton Townships (otherwise known as the "Toland Quarry") which runs adjacent to the Windomaker's property. 4. On or about June 2, 1995, Hempt entered into a License Agreement with Windomaker which allowed Windomaker to use a portion of Hempt's property upon which the Toland Quarry 1 is located which was adjacent to Windomaker's premises. The License is revocable at any time. Attached hereto and marked as Exhibit A is a true and correct copy of the License. 5. Widomaker, without consulting Hempt or getting its approval, constructed an addition onto their house that is on Hempt's property; have constructed various sheds and out buildings located on Hempt's property; have housed livestock on Hempt's property; have left debris and other material on Hempt's property; and have grown their own garden located on Hempt's property. 6. Hempt has made numerous attempts to get Windomaker to remove those items from Hempt's property. 7. Hempt has determined that it is in its best interest to revoke the License and has sent a revocation notice to Windomaker. Attached hereto and marked as Exhibit B is a true and correct copy of the revocation. 8. Windomakers are illegally trespassing on Hempt's property by their failure or refusal to remove those items located on Hempt's property and for constructing part of their premises on Hempt's property. 9. Windomaker has no lawful authority to continue to trespass on Hempt's property. 10. Hempt does not want to resort to self-help and remove those items of Windowmaker that are trespassing on Hempt's property without an appropriate Court Order and the accompaniment of the law enforcement to ensure the safety of Hempt's employees. WHEREFORE, Hempt requests this Honorable Court enter the following Order: A. Direct Windomaker to remove all property currently on Hempt's prpoerty; 2 B. Permit Hempt to remove all of Windomaker's items located on Hempt's property should Windomaker refuse to remove those items themselves; C. Require Windomaker to pay all of Hempt's costs including counsel fees incurred to pursue this Order; and D. Such other relief as the Court deems appropriate. submitted, Z MICHAEL L. BANGS Attorney for Plaintiff 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 3 VERIFICATION MAX J. HEMPT, being duly sworn according to law, deposes and says that he is the President of Hempt Bros., Inc., a Pennsylvania corporation, and that as such officer, he is authorized to make this Verification on its behalf and that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief, and further understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. HEMPT BROS., INC. BY: MAX J. HEMPT President 4 I EXHIBIT A .74«f. iij j • ?.?? CU1d9fN, cR OF C•Cf05 Al., COONir•PA '95 RIB, y 9 1;?= R14 s»43 agRgmmtrmCC wont somas:>,r' , THi8 110RBBS8NT wade as of the JWL day of Alpha 1995, by and between HIMPT BROS., INC., a Pennsylvania corpora on, having its principal office at 208 Creek Road, Camp Hill, Pennsylvania, 17011 (heroin "Licensor") and CHARIM W. HIHDOMAKM and PATmiCIA X. WIMDOMiM, his wits, 253 Pins Grove Road, Gardners, Pennsylvania 17324 (herein "Licensees"). WTIM2888THt WMME 18, Licenser owns, oooupies, and uses a certain piece or parcel of land situate in Dickinson Township and South Middleton Township, Cumberland County, Pennsylvania, sometimes known as "Toland Quarry", acquired by Dead dated July 19, 1973, recorded July 19, 1973, in Cumberland County Dead Hook H-25-310 (herein "Property")= and 1hMUS, Licansor is willing to permit Liosawass to enter upon and use a portion of the Property adjacent to the property of Licensees on the terms and Q4ndit4ons hereinafter set forth. Bow, TezRz x, the parties hereto, intending to be legally bound hereby, mutually agree as followet 1. Licensor shall permit Licensees and their family and invitees to enter upon and use a part of the Property adjacent to the property of Licensees for a distance not to exceed one hundred twenty-six (ia6) feet. a. Privileges of Licensees shall be exercised with due regard for the rights of the Licensor of the Property and shall be in such manner as shall not interfere with any use or occupation of Lioansor of the Property. The exercise of any privilege hereunder by any person shall be at the entire risk of such person, and Licensor. shall have no responsibility for the condition of the property, nor shall it have any liability to any person availing himself or desiring to avail himself of any suoh privileges, nor shall Licensor have any obligation to keep any part of the Property open or unobstructed. 3. Licensees shall indemnify and hold harmless Licensor, its officers, employees, agents, servants, successors and assigns, regardless of any negligence on its part, from and against any and all loss, damage, claims, demands, actions or causes of notion, suits at low or in equity, judgments, liability or exppenses, including attorneys' fees for damages for personal ih}4ry, including death, to any person whatsoever, and for damage to property of any parson whatsoever, including loan or destruction thereof, arising out of any accident or occurraioe, however caused, W 50 1 fter 1 E 11 in or as a result of the exercise by Licensees of the License granted herein. 4. Licensees shall obtain and include the land Within the scope of this License Agreement within the coverage of their homeownerts insurance or any public liability insurance, Bach and every such policy as aforesaid shall expressly provide therein that coverage includes the contractual liability assumed by Licenseas pursuant to this License. Agreement. lartheruera, seek and every such poll,cy shall be endorsed to show itosnsor as an a"Ltional named insured std shall contain a waiver of subrogation rights and shall provide for no Use than ten days notice of any cancellation or adverse change to such policy. 6. A certificate of Insurance and applicable endorsements evidencing such insurance shall be furnished to Licensor no more than ten (10) days after each annual renewal of required insurance. failure to obtain insurance coverage as provided in Bection 4 hereof or failure to furnish a certificate of Insurance as provided is this section a shall render this License Agreement null and void provided, however, that no act or omission of Licensor in relation to the provisions of the said Bectione 4 or s shall in any way licit, modify or affect the obligations of Licensees under any provision of this License Agreement. a. if in the opinion ot: Licensor, its successors or assigns, the exercise of any privilege hereunder shall have caused damage to the Property or any part thereof, Licensees shall promyyttl?y repair and restore any such damagar and upon failure to do so tacensor may proceed to have the work dons and collect the cost thereof from Licensees. Licensee shall keep the lead within the scope of this License in safe condition, rowed, neat, and free of weeds, garbage, trash, ashes, rubbish and refuse. upon failure of Licensees to comply therewith, Licanser ray proceed with compliance and collect the costs thereat from Licensees, 7. Licensees for themselves, their heirs and assigns, covenant and agree that neither the continued exorcise of any privilege or license hereunder, nor any other use of or intrusion upon any part of the property by Licamess or by any other parson holding or claiming under Licansees, or otherwise, atoll aver be deemed to be adverse to the title or possession of Licensor, its suooss-or@ or assigns, but shall be desmad to be by and only by the revocable permission of Licensor, its successors or assigns; and no such person shall ever have a right to claim rights in, over or upon the said Property adverse to Licensor, its successors and assigns, by virtu of any such use, intrusion or anaroachuent, no matter how long continued. Licensees do hereby release and discharge Licensor, its successors and assigns, of and froa any and -s- ou 501 ra VO all banner of actions and causes of actions, suits, claims and demands ftatsoever, in law or equity, whether known or unknown, foreseen or unforeseen, accrued or not accrued, arising out of or in any way comeoted with their use of any part of the land of Licensor, including but not limited to adverse possession. 8. Licensor may, in its sole discretion, and with or without notice, without cause, revoke, sothfy, or limit in whole or in part at any time this License Agreement for Real Estate. 9. The privileges, covenants and obligations of. Licensees beraunAer shall extend to and be binding upon their heirs and assigns who are owners or occupiers of the said property now owned by them, and all rights and remedies reserved by or otherwise belonging to Licensor herein shall accrue to and tray be exercised by its successors and assigns who are the owners of the Property. lo. If any section of this Agreement or any part of any section heroin shall be hold unlawful, invalid or unenforceable, that part shall be deemed deleted and without prejudice to the lawfulness, validity and enforceability of the remaining sections and parts thereof. 11. This Agraement shall be governed by and construed in accordance with the laws of the Cowsonwaslth of Pennsylvania. IN NTTP=S IHIREQf, Licensor has caused this License Agreement for Real Rotate to be signed by its duly authorized officers and is corporate seal to be affixed, and L.ieensees have hereunto set t..hands and seals the day and year first above written. Licensor: r,go Seal) HIM , IN Sy l >? ? nt score cry - -IMS rd I-Aft /505 J (,yffiil?G?s {SRpy) / r lea on er [/ r r (SUL) a c a n era ear -3- 80% 501 MCC V1. 003010NNERLTH Or P NNHYLVANIA : sa coMMY or s?C : On thia, the fay of 111. , 1995, before me, a Rotary Public nand for the O and County above named, the undersigned officer, per. ly appeared NAY C. Rye, who acknowledged himself to be the Cha roan of the Hoard of bros. Inc., a corporation, and that h* as such Chairms Hoard, , being authorised to do so, executed the forwgoind i :•., for the purposes therein contained by signing the n corporation by himself as Chairman of the Board. k IN NITNE88 NH>stEOP, I hereunto set my hand apd Notary c 11M my Commission eYp MarlMAL Roo.re? 0001MONNEALTH Of PENNSYLVANIA I 60-A,49. IM couwTY or On this, the ?Q?ay of ??, 1996, before Toe, a Notary Public?3n and for tTtawoommonvealth and county above named, the undersigned officer, personally appeared CHAR za w. NINDONUM and PAMCIA A. NINDOXM=, his wife, known to ma or satisfactorily proven) to be the persons whose owes are s a to the within instrument, and acknowledged that they exacu same for the Purposes therein contained. '0. ':.•. IN NITNE'88 NHHREOP, I hereunto sat my hand and no ! AO !.!.: the day and year first above written. '/ / :i.-?`':;; : ^..',• my commission Expi 91 HAIL TO. Haupt Bros., Ina. cos Creak Road, P.O eo X79 Camp Hill, PA 17;li rn y o censor N tats yypesipN?Sa? iKtiMe Book 501 ma 172 EXHIBIT B BANGS LAW OMCE 429 SOUTH 18TH STREET CAMP HILT, PA 17011 E-nu : mflebangdkEcd n net MICHAEL L. BANGS, Attorney-at-Law WENDY K. STRAUB, Paralegal October 8, 2009 Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 RE: Charles W. Windomaker My client: Hempt Bros., Inc. Dear Karl: PHONE: 717-730-7310 FAX: 717-730-7374 WILLIAM E. MILLER, JR. Of Counsel This letter is to provide you with notice, as the Windomaker's attorney, that the License Agreement dated June 2, 1995 between Hempt Bros., Inc. and the Windomakers is now revoked. If you do not continue to represent the Windomakers, please let me know and I will forward this notice to them directly even though under the terms of the License no notice is required. I have been instructed to commence and will shortly be filing a complaint in the Court of Common Pleas of Cumberland County seeking their removal as trespassers. If you continue to represent them, please let me know if you will simply accept service. Thank you. Very truly yours, Michael L. Bangs wks cc: Hempt Bros., Inc. 0 i 6mv 4'78.50 PA ATry eu'+ 89'] I P TIt a35 to3o SHERIFF'S OFFICE OF CUMBERLAND COUNTY R Thomas Kline Sheriff Ronny R Anderson Chief Deputy ?yytilr y{ curb's, FILED-OFFICE OF THE PROTHONOTARY 2009 NOV 19 PM 12: 59 Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor Hempt Bros. Inc. vs. Charles W. Windomaker OFF:-'E «_ (. '? -eHIFF PENNSYLVANLA Case Number 2009-7975 SHERIFF'S RETURN OF SERVICE 11/17/2009 05:17 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on Novembei 17, 2009 at 1717 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Charles W. Windomaker, by making known unto Patricia Windomaker, wife of defendant at 253 Pine Grove Road Gardners, Cumberland County, Pennsylvania 17342 its contents and at the same time handing to her personally the said true and correct copy of the same. 11/17/2009 05:17 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on November 17, 2009 at 1717 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Patricia A. Windomaker, by making known unto herself personally, at 253 Pine Grove Road Gardners, Cumberland County, Pennsylvania 17342 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $57.94 November 18, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF By Deputy Sherif c Ceunt,Sui:e;y'C'1n 1. I,'.C. FlLF_D--~~~rlCc ~x THE P.,,^; f-,,~,,~;NARY 200 J~l~ -8 P~~ 2~ 3 ~ HEMPT BROS., INC., E, " .~i THE COURT OF COMMON PLEAS OF Plaintiff ~~' W ~ ~ ~ ' , '`, `~u(`"' CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 09-7975 CIVIL TERM CHARLES W. WINDOMAKER and PATRICIA A. WINDOMAKER, his wife, CIVIL ACTION - IN EQUITY Defendants ANSWER TO COMPLAINT AND NEW MATTER AND NOW, comes Charles W. Windomaker and Patricia A. Windomaker, by and through their counsel Karl E. Rominger, Esquire, and in support of their answer, avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. By way of further answer said license was in lieu of litigating any easement, estoppels, or adverse possession issues at the time, or by way of further answer did not extinguish any of those claims. 5. Admitted. By way of further answer many of the claimed of items pre-date the issuance of any license. Further, to the extent that some of the items are not allowed by license they are open and adverse. 6. Admitted. 7. Admitted. 8. Denied. Strict proof of the same is demanded at trial. By way of further answer see the answer to paragraphs above. 9. Conclusion of law and requires no answer. To the extent it does require an answer it is denied. By way of further answer Plaintiff is barred by estoppel, the doctrine of easement, and/or the adverse nature of the possession taken by the Defendants. 10. Commendable. WHEREFORE, Defendants request this Honorable Court grant judgment in their favor. NEW MATTER 11. Previous paragraphs are incorporated by reference. 12. Many of the complained upon items have been in place far decades. 13. The garden, the livestock, and the like have been in use during those periods. 14. Notwithstanding the fact that a license was granted, Defendants sought substantial interest in maintaining the status quo and the granting of the license in no way extinguished any of the claims and defenses Defendant had at the time the license was created. WHEREFORE, Defendants respectfully request that the Court rule in their favor. Respectfully Submitted, Rominger & Associates Date: K .Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Defendants HEMPT BROS., INC., Plaintiff v. CHARLES W. WINDOMAKER and PATRICIA A. WINDOMAKER, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-7975 CIVIL TERM CIVIL ACTION -INEQUITY CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Answer to Complaint and 1Vew Matter upon the following by depositing the same in the United States Mail, postage pre-paid, first class mail, addressed as follows: Michael L. Bangs, Esquire 429 South 18~' Street Camp Hill, Pennsylvania 17011 Date: Respectfully Submitted, Rominger & Associates E. Rominger, Esquire 15 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-5070 Supreme Court ID# 81924 Attorney for Defendants ~~ ,;~,. F'iLEO-QF~IC~ ,~ PRAECIPE FOR LISTING CA5E Ft'~ ~~ ~ ~ rl ~ ~~ ~ ~~ ~ ; (Mast be typewritten and snbraitted in ~~~~~) ~ 5 ~~ ! ` TO THE PROTHONOTARY OF CUMBERLAND COUNTY ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~~ {~ ~ ~ Please list the following case: ^ for JURY trig! at the next term of civil court. ~ for trial without a jury. CAPTION OF CASE (endre caption must be stated in full (check one} ^ Civil Action -Law ^ A~ from arbitration 1~~~ I~RO~•, .~.-NC. (other) (Plaintiff) vs. 1~Nfl PPcTR.~ct ~ R . i~cNl~tuRt~, t~S amt) vs. The trial list will be called on and Trials commence on Pretrtals will be held on (Briefs art due S~d/a(y~s before pretrials No._~q ^ " (~T ~J~ CIUI ~.. Term Indicate the attorney who will try case for the party who files this praecipe: (~11C~~E~ L. B,hI~S, ~Sc~t.~tP..:E indii trial ~couasei"for other panics rF irnuwr: _ k~ f~ ~- ~ ~ ~o l~-{ c t~C ~ ~ SQU.~ This case is ready for trial. Signed: ~~ Date:_ 1~~13~(0 Print Name: ~ 1 C~E~ l_ ~• ~ (V~ Attorney for: P ~-~ ~ N l l ?~ ~ as`~ 41 q~{g~ ' HEMPT BROTHERS, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF :CUMBERLAND COUNTY, PENNSYLVANIA V. CHARLES W. WINDOWMAKER AND PATRICIA A. WINDOWMAKER, HIS WIFE, DEFENDANTS 09-7975 CIVIL ORDER OF COURT c ~ m~ _ ° ° z -~ AND NOW, this 19~h day of October, 2010, the non-jury trial in the above ~~ c ~ "' rte-- 2 t° referenced case has been assigned to this Court. Prior to setting an actual trial ,~ ~~ 0 ~ IT IS HEREBY ORDERED AND DIRECTED that the parties in this case w pre-trial memorandum with the Court on or before November 22, 2010, in the following rv ~ format: I. A concise statement of factual issues to be decided at trial. II. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. III. A list of all exhibits each party anticipates presenting at trial. IV. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. V. An estimate of the anticipated time needed for the party to present its case. Upon receipt and review of these memorandums, the Court will set a trial date for this case. By the Court, ~~ M. L. Ebert, Jr., J. 0 s m~ -v'~ ~ "~ o° -~ ' i° o '' o~ b -~- . .. ichael Bangs, Esquire Attorney for Plaintiff ~arl Rominger, Esquire Attorney for Defendants bas t stS /)-t~. ~ ~oI~4~~v ~~ HEMPT BROTHERS, INC., PLAINTIFF V. CHARLES W. WINDOMAKER AND PATRICIA A. WINDOMAKER, HIS WIFE, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 09-7975 CIVIL ORDER OF COURT AND NOW, this 22nd day of November, 2010, the Non-Jury Trial in the above referenced case has been assigned to this Court, IT IS HEREBY ORDERED AND DIRECTED that the Non-Jury Trial will be held on Friday, May 13, 2011, at 9:00 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. Michael Bangs, Esquire Attorney for Plaintiff Karl Rominger, Esquire Attorney for Defendants bas gyp; e5 m4 jed ) I laallo M CD a .z- M r? r -O r-- ? D N rn C:) r-- : -i co < ° z -° o-; o yc rv „°) i 4)v? By the Court, MICHAEL L. BANGS, ESQUIRE I.D. No. 41263 429 South 18t' Street Camp Hill, PA 17011 (717) 730-7310 ATTORNEY FOR PLAINTIFF HEMPT BROS., INC. ) IN THE COURT OF COMMON PLEAS Plaintiff ) OF CUMBERLAND COUNTY, C1 C PENNSYLVANIA C-- --? vs. ) 09 -N75 rn rn NO-09-69-76 CIVIL TERM CHARLES W. WINDOMAKER and PATRICIA A. WINDOMAKER, his wife ) CIVIL ACTION - IN EQUITY co Defendants ) ORDER ?h AND NOW this day of U rl C , 2011, having conducted a non jury trial in the matter on May 13, 2011, and being advised that the parties have entered into the attached Stipulation as a result of that trial, the following Order is entered: 1. Hempt has full right, title and interest to the approximately 1,198 acres of land in Dickinson and South Middleton Townships which it acquired by Deed dated October 27, 1981 and recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book Q, Volume 29, Page 382 (referred to hereinafter as the "Toland Property"), and Windomakers' claims for ownership or interest in the Toland Property from adverse possession, equitable estoppel, easement or otherwise are dismissed and forever extinquished. 2. Hempt's request for an Order of Ejectment is granted and the Windomakers are required to remove all of their property and livestock from the Toland Propety in accordance with the following: A. Windomakers shall remove all livestock or animals of any type from Hempt's property within fourteen (14) days and shall refrain from placing any livestock or animals on Hempt's property in the future. B. Windomakers shall remove all sheds, buildings or structures located on the north side of the back street of the Toland Property within forty-five (45) days. C. Windomakers shall not enlarge, alter or change in any way any portion of the structure that is presently located on the south side of the back street of the Toland Property and further shall refrain from adding any additional structures or making any additions or otherwise altering the existing structures or any new structures which would encroach upon or be placed anywhere on the Toland Property. D. Windomakers shall cease their gardening activities which they currently conduct on the north side of the back street of the Toland Property upon removal of the existing crops, the first frost, or November 1, 2011, whichever first occurs. Further, Windomakers shall not place any additional garden on any of Hempt's property or enlarge or otherwise change the existing garden. In the event that Windomakers fail to remove the livestock in accordance with subparagraph A or the sheds or buildings pursuant to subparagraph B within the time frames indicated, their use of the Toland Property for gardening activities under this subparagraph shall cease immediately. 3. The License Agreement entered into between the Hempt and Windomakers dated June 2, 1995 ("License"), is terminated for all of the Toland Property beginning on the north side of the back street. Hempt will continue the License with Windomaker, subject to its terms and conditions, so that Windomakers may continue to use the back street for ingress and egress only to their property and so that Windomakers may continue to use the existing structures which currently encroach on the south side of the back street of the Toland Property. Windomakers may not add to, alter, increase or otherwise change the existing structures except that they may perform routine maintenance on the existing structures. BY THE COURT, Ma;1ed UxI ornin er, 00PIP i&L?a ?ob MICHAEL L. BANGS, ESQUIRE I.D. No. 41263 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 ATTORNEY FOR PLAINTIFF HEMPT BROS., INC. Plaintiff vs. CHARLES W. WINDOMAKER and PATRICIA A. WINDOMAKER, his wife Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-6975 CIVIL TERM CIVIL ACTION - IN EQUITY STIPULATION The parties, by and through their counsel, after conducting a non jury trial on all issues raised in the above-captioned matter, enter into the following Stipulation and request that the Stipulation be made an Order of Court, as follows: 1. Hempt has full right, title and interest to the approximately 1,198 acres of land in Dickinson and South Middleton Townships which it acquired by Deed dated October 27, 1981 and recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book Q, Volume 29, Page 382 (referred to hereinafter as the "Toland Property"), and Windomakers' claims for ownership or interest in the Toland Property from adverse possession, equitable estoppel, easement or otherwise are dismissed and forever extinguished. 2. Hempt's request for an Order of Ejectment is granted and the Windomakers are required to remove all of their property and livestock from the Toland Propety in accordance with the following: A. Windomakers shall remove all livestock or animals of any type from Hempt's property within fourteen (14) days and shall refrain from placing any livestock or animals on Hempt's property in the future. B. Windomakers shall remove all sheds, buildings or structures located on the north side of the back street of the Toland Property within forty-five (45) days. C. Windomakers shall not enlarge, alter or change in any way any portion of the structure that is presently located on the south side of the back street of the Toland Property and further shall refrain from adding any additional structures or making any additions or otherwise altering the existing structures or any new structures which would encroach upon or be placed anywhere on the Toland Property. D. Windomakers shall cease their gardening activities which they currently conduct on the north side of the back street of the Toland Property upon removal of the existing crops, the first frost, or November 1, 2011, whichever first occurs. Further, Windomakers shall not place any additional garden on any of Hempt's property or enlarge or otherwise change the existing garden. In the event that Windomakers fail to remove the livestock in accordance with subparagraph A or the sheds or buildings pursuant to subparagraph B within the time frames indicated, their use of the Toland Property for gardening activities under this subparagraph shall cease immediately. The License Agreement entered into between the Hempt and Windomakers dated June 2, 1995 ("License"), is terminated for all of the Toland Property beginning on the north side of the back street. Hempt will continue the License with Windomaker, subject to its terms and conditions, so that Windomakers may continue to use the back street for ingress and egress only to their property and so that Windomakers may continue to use the existing structures which currently encroach on the south side of the back street of the Toland Property. Windomakers may not add to, alter, increase or otherwise change the existing structures except that they may perform routine maintenance on the existing structures. 4. The parties agree that this Stipulation should be made an Order of Court. 5. This Stipulation is entered into this day of JUAY.- , 2011. HEMPT BROS., INC. MICHAEL L. BA GS Attorney for Plaintiff KA ROMINGER Attorney for Defendants BY: MAX J. HEMPT, President CHARLES W. WINDOMAKER r PATRICIA A. WINDOMAKER