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HomeMy WebLinkAbout04-2496CHARLES E. PETRIE, ESQUIRE ID# 29029 3528 Brisban Street Harrisburg, Pennsylvania 17111 (717) 561-1939 RUTH BENDER and ALICE BEERS, Plaintiffs Vs. DONALD WOOD, SR., Defendant Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NUMBER: e9-11-- -J VI&I CIVIL ACTION - EJECTMENT - 3020 NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the foregoing 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 RIGHT IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 CHARLES E. PETRIE, ESQUIRE ID# 29029 3528 Brisban Street Harrisburg, Pennsylvania 17111 (717) 561-1939 RUTH BENDER and ALICE BEERS, Plaintiffs VS. DONALD WOOD, SR., Defendant Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NUMBER: O q- 0z HR (- COMPLAINT FOR EJECTMENT COUNT I - POSSESSION 1. Plaintiffs are RUTH BENDER, who currently resides at 698 Front Street, Enola, Pennsylvania, 17025; and ALICE BEERS, who currently resides at 199 Fairmont Avenue, West Fairview, Pennsylvania, 17025. 2. Defendant is DONALD WOOD, SR., or occupant, who currently resides at 700 High Street, West Fairview, Pennsylvania, 17025. 3. Plaintiffs are the equitable owners of premises described as Parcel 3 on the attached Adjudication and Decree Awarding Real Estate. A legal description is set forth in said document. 4. Plaintiffs became equitable owners of said premises pursuant to the attached Adjudication and Decree Awarding Real Estate dated October 14, 1994. 5. Plaintiffs, by virtue of the above, are the equitable owners of said premises, and are entitled to possession thereof. The defendant is occupying the said premises without right, and so far as the Plaintiffs are informed, without claim of title. WHEREFORE, Plaintiffs seek to recover possession of said premises. COUNT H - DAMAGES 6. Plaintiffs hereby incorporate paragraphs 1 through 5 of this Complaint as if fully set forth herein. 7. Defendant presently has the following items of personal property on Plaintiffs premises: tires, batteries, gasoline tanks, junked motor vehicles, aluminum parts, tractor trailers, tow trucks, rollbacks, barrels of oil and gasoline, storage containers, school buses, glass, gasoline and oil tanker trucks, trash and dogs. 8. Plaintiffs require that all of the personal listed above, plus all other items of personal property belonging to the Defendant that are located on the property, be removed. 9. Plaintiffs respectfully request that Your Honorable Court enter judgment in favor of Plaintiffs and against Defendant for any costs incurred by Plaintiffs to remove Defendant's personal property from the premises upon Defendant's vacating the premises. Respectfully submitted, CHARLES E. PETRIE 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 Attorney for Plaintiffs COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN We verify that the statements set forth in the foregoing Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 3294, relating to unsworn falsification to authorities. DATE RUTH BENDER ALICE BEERS j A TRUE COPY FROkI PC-(',ORD - 1-4" 1 \JTCt,I4 In Testimony wit&-3W, 1 hereunto at my hand huv l 0 9-/5 - 1293 -6/a and the sea f s^ i.1 Corset n; ."tA-- 1ieio, PA Q 9-lam -f? 93 - 6 This_ dr 7? O9-/5 f1-93-aa,:S- ff9 cs-?zgs-ae (?.twwo rt.??.Q.(?11e 7 Court 93 -aa DL. gF tg jr aunty IN RE: PS`.CA`?Fr AYLOYi WOOD a/k/a A.'% THE BOROUGH OF?IdT iiVIEW, COUNTY OF CUM3I BLAND Aim! STATE OF PENNSYLVANIA, DECEASED. ADJUDICATION AND DECRE G A IN THE COURT OF COM,1011 PLEAS OF C'MB-ISLAND COUNTY, PENNSYLVANIA. ORPHANS? COURT DIVISION. NO. 21-93-573. WARDING REAL ESTATE AND NOW, this. day of October, 1994, no objections having been filed to the First and Final A-count and Statement of Proposed Distribution of RUTH BENDER and ALICE BEERS, Executrices of the Last Will and Testament of ADELBERT MAYLON WOOD a/k/a A. M. WOOD, late of the Borough of West Fairview, County of Cumberland and State of Penn- sylvania, deceased, within the time fixed by the Rules of Court, said Account was confirmed absolutely by this Court on October 11, 1994, and at the same time, the Schedule of Proposed Distribution was approved and Distribution was awarded in accordance with said Schedule. IT IS FU`RTHf1 ADJUDGED AND DECREED, that in accordance with the said Final Account and Statement of Proposed Distribution as confirmed by the Court, that the Distribution of the following described real estate of the decedent is hereby awarded to RUTH BENDER/and ALICE BEERS, their heirs and assigns, as equal Tenants in Common, to wit:- PARCEL 1,10. 1. ALL THOSE CERTAIN four. c4) tracts or Lots of Ground situate in East Pennsboro Township, Cumberland County, Pennsylvania, bounded and described as follows: No. 1. BEGINNING at a point 50.0 feet from the Northwest corner of a private road and a public road known as River Road; thence Northwardly along said River Road 50.0 feet to land now or late of Caleb S. Bri.nton; thence Westwardly at right angles along said last mentioned land 150.0 feet to a point in a private alley; thence Southwardly at right angles along said private alley 50.0 feet to a point; and thence at right angles Eastwardly along lands now or late of Caleb S. Brinton 150,0 feet to the point and place of BEGINNING. BOOK M PACEiI50 -1- No. 2. All that certain tract of land immediately East of tract No. 1 above, having a frontage of 50.0 feet on the River Road and extending at an even width along lands now or late of Caleb S. Brinton 200.0 feet, more or less, to low crater mark of the Susquehanna River. No. 3. BEGINNING at the Northwest corner of a private road, locally known as Fairmont Road, and a public road known as the River Road; thence Northward along said River Road 50.0 feet to lands now or late of Charles P. Prince and Mary G. Prince, his wife; thence Westward at right angles along lands of the same 150.0 feet to a point in a private alley; thence Southward at right angles along said private alley 59.2 feet, more or less, to the aforesaid private road locally known as Fairmont Road; thence Eastward along said private road, locally known as Fairmont Road, a distance of 150.0 feet, more or less, to a point in the River Road, the place of BEGINNING. No. 4. ALI, that certain tract of land immediately East of tract No. 1 herein, having a frontage of 50.0 feet on the River Road and extending an even width along lands now or late of Charles P. Prince and Mary G. Prince, his wife, 200.0 feet, more or less, to low water mark of the Susquehanna River. BEING the same premises which Charles P. Prince and Mary G. Prince, his wife, by their Deed dated June 5, 1952 and recorded in the Cumberland County Recorder's Office in Deed Book "Z", volume 111, Page 429,-granted and conveyed unto Adelbert 11. Wood and Catberi.ne E. Wood, his wife. The said Catherine E. Wood died on June 12, 1961, whereupon sole title in said premises vested in her husband, Adelbert Maylon Wood, by operation of law. PARCEL NO. 2. ALL THOSE CERTAIN two (2) lots of land situate in the Township of East Pennsboro, County of Cumberland and State of Pennsylvania bounded and described as follows: No. 1. BEGINNING at a point on the West side of the public road known as Front Street extended, at the Northerly line of other lands of Adelbert M. Wood and Catherine E. Wood, his wife, said point being located 100.0 feet North of the Northerly line of Fairmont Street (40 feet wide); thence Westwardly at right angle: and along the Northerly line of said lands of Adelbert 11. Wood and Catherine E. Wood, his wife, 150.0 feet to a point; thence Northwardly parallel with Front Street 50.0 feet to a point; thence Eastwardly along lands now or late of S. M. Benion 150.0 feet to Front Street extended; thence Southwardly by the latter line 50.0 feet to the place of BEGINNING. BOOK 113 F"' li5i -2- No. 2 BEGINNING at a point on the East side of the public road known as Front Street extended, at the Southerly line of lands of Adelbert 11. Wood and Catherine E. Wood, his wife; thence Eastwardly along the latter, 125.0 feet, more or less, to the Susquehanna River Bank; thence Southwardly along the latter 50.0 feet, more or less, to a stake; thence South 71 degrees West, 127.0 feet, more or less, to Front Street extended; thence North 21 degrees 51 minutes West along the latter line 25.0 feet, more or less, to the place of BEGINNING. BEING the same premises which Lemoyne Trust Company and Charles Ebner, Executors of the Estate of Maude H. Brinton, deceased, by their Deed dated September 4, 1963 and recorded in the Cumberland County Recorder's Office in Deed Book "H", Volume 21, Page 302, granted and conveyed unto Adelbert H. Wood and Catherine E. Wood, his wife. The said Catherine E. Wood died on June 12, 1961, whereupon sole title in said premises vested in her husband, Adelbert Ilaylon Wood, by operation of law. PARCEL NO. 3. ALL THAT CERTAIN tract of land situate in East Pennsboro Township Cumberland County, Pennsylvania, bounded and described as follows to wit:- BEGITII•TING at low water mark of the Susquehanna River, at the Southerly line of property of the Pennsylvania Railroad Company; thence South 72 degrees West, 131.0 feet to a point on the line of lands now or late of Manor Real Estate ?- Trust Company; thence along the same, South 15 degrees 39 minutes East, 236.0 feet, more or less, to a point; thence by the same, South 72 degrees West, 700.2 feet to a stone on line of lands of the Northern Central Railway Company; thence by the latter South 21 degrees 31 minutes East, 917.1 feet to a point; thence along the center of Fairmont Street, North 63 degrees 15 minutes East, 525.0 feet, more or less, to land of A. M. Wood; thence along said lands and lands now or late of Benion Zeigler Sersch, et al, North 21 degrees 51 minutes West, 659.0 feet to a point; thence by lands now or late of John Anderson in an Easterly direction 150.0 feet to a point on the West side of a public road; thence by said public road Northward17 133.0 feet, more or less, to a point; thence Eastwardly crossing said road and along lands now or late of Jean Sersch, 230.0 feet, more or less to the Susquehanna Rivex and thence by the latter Northwardly 249.0 feet, more or less, t< the point and place of BEGINNING. EXCEPTING AND EXCLUDING from the above described parcel of land, a certain Lot of Ground 100 feet by 150 feet conveyed by Adelbert 11. Wood, widower, by his Deed dated June 1, 1981 and recorded in the Cumberland County Recorder's Office in Deed Book %", Volume Page 11E0, to his son, Donald 11. Wood, as more particularly shown on a Subdivision Plan recorded in the Cumberland County Recorder) Office in Plan Book No. 37, at Page 92. BOOK iii PACEW2 -3- BEING the same premises which Russell N. Eberly and Margaret Eberly, his wife, by their Deed dated September 28, 1961}. and recorded in the Cumberland County Recorder's Office in Deed Book "IS", Volume 21, Page 126, granted and conveyed unt Adelbert H. Wood, widower, the within decedent. By the Court, /?, 6/ ? cc JLa ?tj I HEREBY CERTIFY that the precise grantees is: c/o Alice Beers 516 Enola Road West Fairview, residence of the PA 17025 ^nnsylyania SS CD •,i Cumberland i ;n the o,Mce for the recording of Deeds ° aa tear rnberland County. Pa gQ` a!t Vol.' Page ??]Q i mV hand and seal of office of ((??LI R o r soot[ A3 pnciiM C? w P. J. r- r' - o z, -4- k. N \ O U p ? ?rl tI CHARLES E. PETRIE, ESQUIRE ID#29029 3528 Brisban Street Harrisburg, Pennsylvania 17111 (717) 561-1939 Attorney for Plaintiffs RUTH BENDER and ALICE BEERS, Plaintiffs VS. DONALD WOOD, SR., Defendant TO: DONALD WOOD, SR. DATE OF NOTICE: JULY 22, 2004 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NUMBER: 04-2496 (CIVIL) IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE ]DATE OF THIS NOTICE YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 (800) 990-9108 c-, ?_ ? , e ?- "i; ?->. r n f. . .1 _ _ ? .? r? ?r j ? i ?..J - ? tD .. '?; , ? d. TOMASKO & KORANDA, P.C. By: Michael A. Koranda, Esquire PA ID #58808 219 State Street Harrisburg, PA 17101 Phone: (717) 23 8-1100 mkoranda@t-klaw.com RUTH BENDER and ALICE BEERS, Plaintiffs, vs. Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-2496 (CIVIL) DONALD WOOD, SR. Defendant. CIVIL ACTION - EQUITY NOTICE TO PLEAD TO: Plaintiffs YOU ARE HEREBY REQUIRED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. ANSWER WITH NEW MATTER AND COUNTERCLAIM NOW COMES, Donald Wood, Sr., by and through his attorneys, TOMASKO & KORANDA, P.C., and avers as follows: -I- Count I - Possession Admitted. 2. Admitted. 3. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. To the extent that a responsive pleading is required, after reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the matters asserted and accordingly, the same are denied and strict proof thereof is demanded at trial. 4. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. To the extent that a responsive pleading is required, after reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the matters asserted and accordingly, the same are denied and strict proof thereof is demanded at trial. 5. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. To the extent that a responsive pleading is required, after reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the matters asserted and accordingly, the same are denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant, Donald Wood, Sr., demands judgement in his favor and -2- against Plaintiffs, Ruth Bender and Alice Beers, with costs of suit and any other relief which may be necessary and proper. Count 11- Damages 6. Paragraph Nos. 1 through 5 above are incorporated herein by reference as if set forth at length below. 7. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded at trial. To the extent that a responsive pleading is required, answering Defendant avers that Plaintiffs never objected to the placement of the enumerated items on "Plaintiffs [sic) premises." 8. No response required. 9. No response required. WHEREFORE, Defendant, Donald Wood, Sr., demands judgement in his favor and against Plaintiffs, Ruth Bender and Alice Beers, with costs of suit and any other relief which may be necessary and proper. NEWS 10. Paragraph Nos. 1 through 8 above are incorporated herein by reference as if set forth at length below. 11. Plaintiffs' claims are barred by the doctrine of latches. 12. Plaintiffs' Complaint fails to state a cause of action upon which relief may be granted. 13. Answering Defendant made substantial and costly improvements to the parcel of -3- land at issue in this litigation, including the erection of a large building, the creation of a 80' macadam driveway, and the installation of 100' electrical connection. Plaintiffs had actual knowledge of these improvements and never voiced any objecting to same. To the extent that these improvements were made on or to realty belonging to Plaintiffs, Plaintiffs would be unjustly enriched by keeping or retaining same. WHEREFORE, Defendant, Donald Wood, Sr., demands judgement in his favor and against Plaintiffs, Ruth Bender and Alice Beers, with costs of suit and any other relief which may be necessary and proper. COUNTERCLAIM NOW COMES Counterclaim Plaintiff, Donald Wood, Sr., by and through his attorneys, TOMASKO & KORANDA, P.C., and avers as follows: Count I - Unjust Enrichment Donald Wood Sr. v. Ruth Bender and Alice Beers 14. Paragraph 1 through 13 above are incorporated herein by reference as if set forth at length below. 15. Counterclaim Plaintiff believes, and therefore avers, that the replacement cost and/or value of the improvements identified in Paragraph 13 amounts to approximately $40,000.00. 16. To the extent that these improvements were made on or to realty belonging to Plaintiffs, Plaintiffs would be unjustly enriched by keeping or retaining same. WHEREFORE, Counterclaim Plaintiff, Donald Wood, Sr., demands judgement in his favor and against Counterclaim Defendants, Ruth Bender and Alice Beers, for the replacement -4- costs and/or value of the improvements made to the property, with costs of suit and any other relief which may be necessary and proper. Respectfully submitted, TOMASKO & KORANDA, P.C. 219 State Street Harrisburg, PA 17101 Telephone: (717) 238-1100 By: MICHAEL A. KORANDA PA ID #58808 -5- VERIFICATION I verify that the statements made in the attached ANSWER WITH NEW MATTER AND COUNTERCLAIM are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to penalties of 18 pa. C.S. §4904 relating to unswom falsification to authorities. DATED: 30-t7 D, DONALD WO , SR. CERTIFICATE OF SERVICE AND NOW, this nalday of 2004, I, Michael A. Koranda, Esquire, attorney for the Defendant/Counterclaim Plaintiff, Donald Wood, Sr., hereby certify that I served the within ANSWER WITH NEW MATTER AND COUNTERCLAIM this day by: U.S. Mail, first class, postage prepaid, addressed to: Charles E. Petrie, Esquire 3528 Brisban Street Harrisburg, PA 17111 By: MIC AEL A. KORANDA G. r n ' r CA) .. 71: ? = 7 . C .: -•1 ra Q, i 'j 1 CHARLES E. PETRIE, ESQUIRE ID# 29029 3528 Brisban Street Harrisburg, Pennsylvania 17111 (717) 561-1939 RUTH BENDER and ALICE BEERS, Plaintiffs Vs. DONALD WOOD, SR., Defendant Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NUMBER: 04-2496 CIVIL REPLY TO NEW MATTER AND COUNTERCLAIM NOW COME the Plaintiffs, RUTH BENDER and ALICE BEERS, by and through their attorney, Charles E. Petrie, and respectfully answer Defendant's New Matter and Counterclaim as follows: 10. No responsive pleading required. 11. Denied. Plaintiffs' claims are not barred by the doctrine of laches. 12. Denied. Plaintiffs' Complaint states a cause of action upon which relief may be granted. 13. Admitted in part and denied in part. It is admitted that Defendant performed labor for improvements on the property; it is denied that Defendant made "substantial and costly" improvements. Plaintiffs owned the material for the building prior to Defendant's construction. Plaintiffs did not have actual knowledge of the improvements prior to the work being completed. Plaintiffs would not be unjustly enriched by keeping and retaining the improvements. 14. No responsive pleading required. 15. Denied. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the matter asserted and accordingly, the same is denied and strict proof thereof is demanded at trial. 16. Denied. Plaintiffs would not be unjustly enriched by keeping or retaining the improvements because the material belonged to the Plaintiffs prior to construction. WHEREFORE, Plaintiffs respectfully request that Your Honorable Court dismiss Defendant's Counterclaim. Respectfully submitted, CHARLES E. PETRIE 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 Attorney for Defendants COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN I verify that the statements in the foregoing Reply to New Matter and Counterclaim are true and correct. I understand thiat false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DATE ALICE BEERS c:.? c. y.. -Il -1 _ PA ) -?,[ 1 ? l ?v <J. _?? } l? ?_r1 -? tn? __ `? -? PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. (XX ) for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) (XX) Civil Action - Law ( ) Appeal from Arbitration RUTH BENDER and ALICE BEERS, Vs. (Must be typewritten and submitted in duplicate) (Plaintiff) (other) The trial list will be called on and DONALD WOOD, SR., VS. (Defendant) Trials commence on Pretrials will be held on (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. Civil 2496 Jq12004 Indicate the attorney who will try case for the party who files this praecipe: Charles E. Petrie, Esquire Indicate trial counsel for other parties if known: Ronald T. TomASKO, Esqui re This case is ready for trial. Signed: /,?t_? ?- Print Name: Charles E. Petrie Date: 4/5/2007 Attorney for: Plaintiffs r-? ? fl C? c? -ri Iz, RUTH BENDER and IN THE COURT OF COMMON PLEAS OF ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW DONALD WOOD, SR., Defendant NO. 04-2496 CIVIL TERM IN RE: NONJURY TRIAL ORDER OF COURT AND NOW, this 10th day of April, 2007, upon the Praecipe for Listing Case for Trial filed in the above matter on April 6, 2007, a nonjury trial is scheduled for Monday, August 6, 2007, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, G J. esley Oler, r., J. /harles E. Petrie, Esq. 3528 Brisban Street Harrisburg, PA 17111 Attorney for Plaintiffs ionald T. Tomasko, Esq. 219 State Street Harrisburg, PA 17101 Attorney for Defendant Court Administrator --`"ele6el"ll Y :rc J ;1-3 i CC ,G III Z i VdV ZODZ RUTH BENDER and ALICE BEERS, Plaintiffs . v DONALD WOOD, SR., Defendant . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY 04-2496 CIVIL TERM IN RE: PLAINTIFFS' COMPLAINT FOR EJECTMENT & DEFENDANT'S COUNTERCLAIM FOR UNJUST ENRICHMENT ORDER OF COURT AND NOW, this 6th day of August, 2007, upon consideration of Plaintiffs' Complaint for Ejectment in the above-captioned matter and of Defendant's Counterclaim for unjust enrichment, and following a nonjury trial, the record is declared closed, and the matter is taken under advisement. vCharles E. Petrie, Esquire 3528 Brisban Street Harrisburg, PA 17111 For Plaintiffs /onald T. Tomasko, Esquire 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 For Defendant :mae J By the Court, C 1 :01 WV L- SnV LOOZ ?b'1C?NOMI.LUUd 3HI JO M-4ry?-a-MIJ RUTH BENDER and IN THE COURT OF COMMON PLEAS OF ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW DONALD WOOD, SR., Defendant NO. 04-2496 CIVIL TERM VERDICT AND NOW, this 7th day of August, 2007, upon consideration of Plaintiffs' Complaint for Ejectment, and of Defendant's Counterclaim for unjust enrichment, and following a nonjury trial held on August 6, 2007, it is ordered and directed as follows: 1. On Plaintiffs' Complaint for Ejectment, the Court finds in favor of Plaintiffs and against Defendant, and Defendant is directed to vacate the property described in Plaintiffs' Exhibit 1 (attached hereto), and to remove all personalty in his possession therefrom, within 60 days of the date of this order; and 2. On Defendant's Counterclaim for unjust enrichment, the Court finds in favor of Plaintiffs and against Defendant. BY THE COUR' Wesley ./harles E. Petrie, Esq. 3528 Brisban Street Harrisburg, PA 17111 Attorney for Plaintiff Xonald T. Tomasko, Esq. 219 State Street Harrisburg, PA 17101 Attorney for Defendant Jr., 4 It?!`rl! `v;?,,I b 1 :Z Wd L- 9nV LDOZ 1?t 1U `v% fl. t 3A 09-/-6-i2. 93 -616 !n Testimony ,v I- ;ccJ`, f hF,r;lrio ;.,t pry hand and the seal of sa; dl Oor:ct : •? ,^,::,fi?ft? -A q-I_S =JZ 9? - a ?1 6'9-45 jZ93 - aa? z 93 _ Q 7 7oert 93 _ as ?. • ?vounty IN RE: S`.?A`_,_ .:?YLON IN TILE, COURT OF COMI,IOIT PLEAS OF WOOD a/Tc/a A.'f,'?=..? ?,$ E OF CMM-.?RLATM COUNTY, PENNSYLVANIA. THE BOROUGI3 OF ?VA!IZ TIEW OR MAINS t COURT DIVISION. COUNTY OF CMIM ERLAND A Fi STATE OF : . PENNSYLVANIA, DECEASED. .: NO. 21-93-573• ADJUDICATION AND DECREE AWARDING REAL ESTATE AND NOW, this /17k? day of October, 1994, no objections having been filed to the First and Final A^count and Statement of Proposed Distribution of RUTH BENDER and ALICE BARS, El,ecutrices of the Last Will and Testament of ADELBERT MAYLON WOOD a/k/a A. M. WOOD, late of the Borough of West Fairview, County of Cumberland and State of Penn- Sylvania, deceased, within the time fixed by the Rules of Court, said Account was confirmed absolutely by this Court on October 11, 1994, and at the same time, the Schedule of Proposed Distribution was approved and Distribution was awarded in accordance with said Schedule. IT IS FLTRT=- ADJUDGED AND DECREED, that in accordance with the said Final Account and Statement of Proposed Distribution as confirmed by the Court, that the Distribution of the following described real estate of the decedent is hereby awarded to RUTH BENDER/and ALICE BEERS, their heirs and assigns, as equal Tenants in Common, to wit:- PARCEL 1d0. 1. ALL THOSE CERTAIN four (4; tracts or Lots of Ground situate in East Pennsboro Township, Cumberland County, Pennsylvania, bounded and described as follows: G No. 1. BEGINNING at a point 50.0 feet from the Northwest s @borner of a private road and a public road known as River $2 noad; thence Northwardly along said River Road 50,0 feet to c04 'g-land now or late of Caleb S. Brinton; thence westwardly at right angles along said last mentioned land 150.0 feet to a °epoint in a private alley; thence Southwardly at right angles -, C. LU along said private alley 50.0 feet to a point; and thence at E 16 Bright angles Eastwardly along lands now or late of Caleb S. $o 2.6 oa>o :EBrinton 150.0 feet to the point and place of BEGINNING. r EE PLAINTIFF'S o ¢ o o r _ EXHIBIT _ U o00K M ?AcEii,50 No. 2. All that certain tract of land immediately East of tract No. 1 above, having a frontage of 50.0 feet on the River Road and extending at an even width along lands now or late of Caleb S. Brinton 200.0 feet, more or less, to low water mark of the Susquehanna River. No. 3. BEGINNTI.TG at the Northwest corner of a private road, locally known as Fairmont Road, and a public road known as the River Road; thence Northward along said River Road 50.0 feet to lands now or late of Charles P. Prince and Mary G. Prince, his wife; thence Westward at right angles along lands of the same 150.0 feet to a point in a private alley; thence Southward at right angles along; said private alley 59.2 feet, more or less, to the aforesaid private road locally known as Fairmont Road; thence Eastward along said private road, locally known as Fairmont Road, a distance of 150.0 feet, more or less, to a point in the River Road, the place of BEGINNING. No. L?. ALL that certain tract of land immediately East of tract No. 1 herein, having a frontage of 50.0 feet on the River Road and extending an even width along lands now or late of Charles P. Prince and l,lary G. Prince, his wife, 200,0 feet, more or 'Less, to low water mark of the Susquehanna River. BEING the same premises which Charles P. Prince and Mary G. Prince, his wife, by their Deed dated June 5, 1952 and recorded in the Cumberland County Recorder's Office in Deed Book "Z", volume 14, Page 429,--granted and conveyed unto Adelbert 14. Wood and Catherine E. Wood, his wife. The said Catherine E. Wood died on June 12, 1961, whereupon sole title in said premises vested in her husband, Adelbert Maylon Wood, by operation of law. PARCEL NO. 2. ALL THOSE CERTAIN two (2) lots of land situate in the Township of East Pennsboro, County of Cumberland and State of Pennsylvania, bounded and described as follows: No. 1. BEGINNING at a point on the West side of the public road known as Front Street extended, at the Northerly line of other lands of Adelbert H. Wood and Catherine E. Wood, his wife, said point being located 100.0 feet North of the Northerly line of Fairmont Street (40 feet wide); thence Westwardly at right angles and along the Northerly line of said lands of Adelbert M. Wood and Catherine E. Wood, his wife, 150.0 feet to a point; thence Northwardly parallel with Front Street 50.0 feet to a point; thence Eastwardly along lands now or late of S. 11. Benion 150.0 feet to Front Street extended; thence Southwardly by the latter line 50.0 feet to the place of BEGINNING. BOOK 10 F',?? i5i -2- No. 2 BEGINNING at a point on the East side of the public road known as Front Street extended, at the Southerly line of lands of Adelbert I4. Wood and Catherine E. Wood, his wife; thence Eastwardly along the latter, 125.0 feet, more or less, to the Susquehanna River Bank; thence Southwardly along the latter 50.0 feet, more or less, to a stake; thence South 71 degrees West, 127.0 feet, more or less, to Front Street: extended; thence North 21 degrees 51 minutes West along the latter line 25.0 feet, more or less, to the place of BEGINNING. BEING the same premises which Lemoyne Trust Company and Charles Ebner, Executors of the Estate of Maude H. Brinton, deceased, by their Deed dated September 1i., 1963 and recorded in the Cumberland County Recorderts Office in Deed Book "H", Volume 21, Page 302, granted and conveyed unto Adelbert M. Wood and Catherine E. Wood, his wife. The said Catherine E. Wood died on June 12, 1961, whereupon sole title in said premises vested in her husband, Adelbert I-Iaylon Wood, by operation of law. PARCEL NO. 3. ALL TKkT CERTAIN tract of land situate in East Pennsboro Township, Cumberland County, Pennsylvania., bounded and described as follows, to wit: - BEGINNING at low water mark of the Susquehanna River, at the Southerly line of property of the Pennsylvania Railroad Company; thence South 72 degrees West, 131.0 feet to a point on the line of lands now or late of Manor Real Estate & Trust Company; thence along the same, South 15 degrees 39 minutes East, 236.0 feet, more or less, to a point; thence by the same, South 72 degrees West, 700.2 feet to a stone on line of lands of the Northern Central Railway Company; thence by the latter South 21 degrees 31 minutes East, 917.1 feet to a point; thence along the center of Fairmont Street, North 63 degrees 15 minutes East, 525.0 feet, more or less, to land of A. M. Wood; thence along said lands and lands now or late of Benion Zeigler Sersch, et al, North 21 degrees 51 minutes West, 659.0 feet to a point; thence by lands now or late of John Anderson in an Easterly direction 150.0 feet to a point on the West side of a public road; thence by said public road Northti•rardly 133.0 feet, more or less, to a point; thence Eastwardly crossing said road and along lands now or late of Jean Sersch, 230.0 feet, more or less to the Susquehanna River; and thence by the latter Northwardly 249.0 feet, more or less, to the point and place of BEGINNING. EXCEPTING AND EXCLUDING from the above described parcel of land, a certain Lot of Ground 100 feet by 150 feet conveyed by Adelbert 11. Wood, widower, by his Deed dated June 1, 1981 and recorded in the Cumberland County Recorderts Office in Deed Book "L", Volume 2c Page 110, to his son, Donald M. Wood, as more particularly shown on a Subdivision Plan recorded in the Cumberland County Recorder's Office in Flan Book No. 37, at Page 92. coax VL3 Pwii52 -3- BEING the same premises wtaich Russell N. Eberly and Margaret Eberly, his wife, by their Deed dated September 28, 1961}. and recorded in the Cumberland County Recorderts Office in Deed Book "K", Volume 21, Page 126, granted and conveyed unt Adelbert ICI. [good, widower, the within decedent. By the Court, P. J. i HEREBY CERTIFY that the precise grantees is: c/o Alice Beers 516 Enola Road West Fairview, residence of the PA 17025 1--n nsyWania SS > "Urn ierland -" - i r she olffice for the recording of Deeds ° c; < :; -t'or mberland Count , Pa ' Pace Vol. r?y hand and seal of office of R o r co Gal Tt aoox 113 PAGAi53 -4- Ronald T. Tomasko, Esquire Sup. Ct. I.D. No. 61190 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rttomasko@mette.com RUTH BENDER and ALICE BEERS, Plaintiffs V. DONALD WOOD, SR., Defendant. COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA CIVIL DIVISION : NO. 04-2496-CIVIL DEFENDANT'S MOTION FOR POST-TRIAL RELIEF AND NOW comes the Defendant, Donald Wood, Sr., by and through his attorney, Ronald T. Tomasko, Esquire, of Mette, Evans & Woodside, P.C., and files the following Motion for Post-Trial Relief and, in support thereof, avers as follows: 1. A bench trial was held on this matter on August 6, 2007. 2. On August 13, 2007, Defendant's counsel was served with a copy of the Court's August 7, 2007 verdict finding in favor of the Plaintiffs. 3. The Court's verdict made no mention of the substantial improvements that the Defendant made to the parcel in question, including the building (and purchase) of a pole building, a macadam driveway and an extension of the electric service. 4. The Court's verdict makes no mention of the Eight Thousand Dollar ($8,000.00) plus in cash payments that the Defendant made to the Plaintiffs. 5. The above issues were preserved by counsel for the Defendant at the pre-trial conference with the Court, and during the parties' closing arguments at the time of trial. 6. Pursuant to Pa. R.C.P. 227.3, the Defendant requests that the August 6, 2007 bench trial be transcribed in order to enable the Court to dispose of the Motion. WHEREFORE, the Defendant, pursuant to Pa. R.C.P. 227. 1, respectfully requests that the Court affirm, modify or change its order to reflect that the Defendant should be compensated for the improvements to the parcel and/or cash payments made to the Plaintiffs. Respectfully su METTE, EVAnS 4/NOODSIDE By: Ronald T. Tomasko, Esquire Attorney I.D. No. 61190 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rttomasko@mette.com Attorney for Defendant 2 I Ronald T. Tomasko, Esquire Sup. Ct. I.D. No. 61190 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rttomasko@mette.com RUTH BENDER and ALICE BEERS, V. DONALD WOOD, SR., Plaintiff, Defendant. COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA CIVIL DIVISION NO. 04-2496-CIVIL CERTIFICATE OF SERVICE AND NOW, this 16th day of August, 2007, I, RONALD T. TOMASKO, ESQUIRE, herby certify that I served the within DEFENDANT'S MOTION FOR POST-TRIAL RELIEF on this day by depositing same into the United States mail, postage paid, in the post office located in Harrisburg, Pennsylvania addressed to: Curt Long, Prothonotary Court of Common Pleas of Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle, Pennsylvania 17013 J. Wesley Oler, Judge Court of Common Pleas 1 Courthouse Square Carlisle, Pennsylvania 17013 477133vl Charles E. Petrie, Esquire 3528 Brisban Street Harrisburg, Pennsylvania 17111 & WOOD91DE OA4 T. Tomasko, Esquire ?Z r_'.."..1 ?-' C7 L _? J -f"{ ? '? ?) J 4.? ? 3?-.t ?,,, _ _ > x? ..».. `,?t"1i ? ?.._ a A C7 CHARLES E. PETRIE, ESQUIRE ID# 29029 3528 Brisban Street Harrisburg, Pennsylvania 17111 (717) 561-1939 Attorney for Plaintiff RUTH BENDER and ALICE BEERS, Vs. Plaintiffs DONALD WOOD, SR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NUMBER: 04-2496 CIVIL ANSWER TO DEFENDANT'S MOTION FOR POST-TRIAL RELIEF NOW COME the Plaintiffs, RUTH BENDER and ALICE BEERS, by and through their attorney, Charles E. Petrie, and respectfully answer Defendant's Motion for Post-Trial Relief as follows: 1. Admitted. 2. Admitted. 3. Denied. The matters set forth in this paragraph were addressed in paragraph 2 of the Court's verdict, finding for Plaintiff and against Defendant on Defendant's Counterclaim for unjust enrichment. 4. Denied. The matters set forth in this paragraph were addressed in paragraph 2 of the Court's verdict, finding for Plaintiff and against Defendant on Defendant's Counterclaim for unjust enrichment. 5. Admitted. 6. No responsive pleading required. WHEREFORE, Plaintiffs respectfully request that Your Honorable Court dismiss Defendant's Motion for Post-Trial Relief. Respectfully submitted, CHARLES E. PETRIE 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 Attorney for Defendants s t CHARLES E. PETRIE, ESQUIRE ID# 29029 Attorney for Plaintiff 3528 Brisban Street Harrisburg, Pennsylvania 17111 (717) 561-1939 RUTH BENDER and : IN THE COURT OF COMMON PLEAS OF ALICE BEERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CIVIL DIVISION Vs. NUMBER: 04-2496 CIVIL DONALD WOOD, SR., Defendant CERTIFICATE OF SERVICE I certify that on August 22, 2007, I served a copy of the foregoing Answer to Defendant's Motion for Post-Trial Relief upon counsel for the Defendant, Ronald T. Tomasko, Esquire, at his law offices at 3401 North Front Street, P.O. Box 5950, Harrisburg, PA 17110-0950, by U.S. Postal Service First Class Mail, postage prepaid. Respectfully submitted, CHARLES E. PETRIE 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 Sup Ct. ID No. 29029 c - C? ?., xt 4. -°--' ..mot ?- 'R + f? 1 ?--1"T 1 ' } ? r ?y;. y ? .. s -- "?,3 ?? RUTH BENDER and IN THE COURT OF COMMON PLEAS OF ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW DONALD WOOD, SR., : Defendant NO. 04-2496 CIVIL TERM ORDER OF COURT AND NOW, this 27th day of August, 2007, upon consideration of Defendant's Motion for Post-Trial Relief, and of Plaintiffs' Answer to Defendant's Motion for Post- Trial Relief, oral argument is scheduled for Thursday, October 11, 2007, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Briefs are due 5 days prior to that date. -Charles E. Petrie, Esq. 3528 Brisban Street Harrisburg, PA 17111 Attorney for Plaintiffs Ronald T. Tomasko, Esq. 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant A BY THE COURT, . Wesley Oler, Jr., J. Sri v tt i ` ? IN',d 01:Z Wd LZ 00V LOOI ?' ri- Iq IL 0 t Ronald T. Tomasko, Esquire Sup. Ct. I.D. No. 61190 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rttomasko@mette.com RUTH BENDER and ALICE BEERS, COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA Plaintiff, V. CIVIL DIVISION DONALD WOOD, SR., NO. 04-2496-CIVIL Defendant. AND NOW, this 24th day of August, 2007, I, RONALD T. TOMASKO, ESQUIRE, herby certify that I served the within ORDER on this day by depositing same into the United States mail, postage paid, in the post office located in Harrisburg, Pennsylvania addressed to: CERTIFICATE OF SERVICE Curt Long, Prothonotary Court of Common Pleas of Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle, Pennsylvania 17013 J. Wesley Oler, Judge Court of Common Pleas 1 Courthouse Square Carlisle, Pennsylvania 17013 Charles E. Petrie, Esqi 3528 Brisban Street Harrisburg, Pennsylva 477475v1 rV RUTH BENDER and IN THE COURT OF COMMON PLEAS OF ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW DONALD WOOD, SR., Defendant NO. 04-2496 CIVIL TERM ORDER OF COURT AND NOW, this 12`h day of October, 2007, upon consideration of Defendant's Motion for Post-Trial Relief, and following oral argument held on October 11, 2007, Defendant's Motion for Post-Trial Relief is denied. Y arles E. Petrie, Esq. 3528 Brisban Street Harrisburg, PA 17111 Attorney for Plaintiff onald T. Tomasko, Esq. 219 State Street Harrisburg, PA 17101 Attorney for Defendant :rc A BY THE COURT, J esley Ober Jr., J. C? :I Pd Z 1 130 loot 6 in 30H-111 0--ri-31#i : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION NUMBER: 04-2496 CIVIL PRAECIPE FOR WRIT OF POSSESSION NOW COME the Plaintiffs, Ruth Bender and Alice Beers, by and CHARLES E. PETRIE, ESQUIRE ID# 29029 3528 Brisban Street Harrisburg, Pennsylvania 17111 (717) 561-1939 Attorney for Plaintiff RUTH BENDER and ALICE BEERS, Vs. Plaintiffs DONALD WOOD, SR., Defendant through their attorney, Charles E. Petrie, and respectfully represent as follows: 1. That on August 7, 2007, a Verdict was handed down by the Honorable J. Wesley Oler, Jr., a copy of which is attached hereto, directing the above Defendant, DONALD WOOD, SR., "to vacate the premises described in Plaintiffs' Exhibit 1 (attached hereto) and to remove all personalty in his possession therefrom, within 60 days of the date of this order." 2. Sixty days have passed since the entry of the Order. 3. Defendant has not vacated the property, nor has he removed his personalty from the premises. WHEREFORE, Plaintiffs respectfully request that an Order of Possession be entered against the Defendant, DONALD WOOD, SR., for possession by the Plaintiffs of the premises described in the Exhibit attached hereto. Respectfully submitted, CHARLES E. PETRIE 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 Attorney for Defendants % RUTH BENDER and IN THE COURT OF COMMON PLEAS OF ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW DONALD WOOD, SR., : Defendant NO. 04-2496 CIVIL TERM VERDICT AND NOW, this 7`n day of August, 2007, upon consideration of Plaintiffs' Complaint for Ejectment, and of Defendant's Counterclaim for unjust enrichment, and following a nonjury trial held on August 6, 2007, it is ordered and directed as follows: 1. On Plaintiffs' Complaint for Ejectment, the Court finds in favor of Plaintiffs and against Defendant, and Defendant is directed to vacate the property described in Plaintiffs' Exhibit 1 (attached hereto), and to remove all personalty in his possession therefrom, within 60 days of the date of this order; and 2. On Defendant's Counterclaim for unjust enrichment, the Court finds in favor of Plaintiffs and against Defendant. BY THE COUR Wesley e Jr., C rles E. Petrie, Esq. 528 Brisban Street Harrisburg, PA 17111 Attorney for Plaintiff Ronald T. Tomasko, Esq. 219 State Street Harrisburg, PA 17101 Attorney for Defendant 1 of 2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Ruth Bender 698 Front Street, Enola, Pa. 17025 and Alice Beers 199 Fairmont Avenue, W. Fairview, Pa. 17025 VS. No. 04-2496 Civil Term Donald Wood, Sr. 700 High Street West Fairview, Pa. 17025 Costs Attorney's $ 159.35 Plaintiff's $ Prothonotary $ 2.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) Ruth Bender 698 Front Street, Enola, Pa. 17025 and Alice Beers 199 Fairmont Avenue, W. Fairview, Pa. 17025 being: (Premises as follows): See Attachment (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. u s R. Long, Prothonotary /-?' Common Pleas Court of Cumberland County, PA Date October 29, 2007 (Seal) 2of2 No Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Ruth Bender and Alice Beers Donald Wood Sr VS. WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 159.35 Plff (s) $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: Chrles e. Petrie, kEsq. 3528 Brisban Street Harrisburg, Pa. 17111 Attorney for Plaintiff (s) Where papers may be served By virtue of this writ, on the day of . I caused the within named , to have possession of the premises described with the appurtenances, and Sworn and subscribed to before me this Day of , Prothonotary So Answers, Sheriff By Deputy In Testimony yrftc Hof, I hF.? _?:!ntt? at my hand and the seal of 3a c r r?.?a '; iis;??, PA .? ? Th i s___1_? 0 9•-I? - / z93 -'s /a IT 9 - 1-57-J2 7-3 611 dj ZY3 - L 0-ourt 93 cam/ + r ?• k County IN RE: L:S'.lA°,. ,v A?_'"LOPI IN TILE COURT OF COM110I1 PLEAS OF WOOD a/k/a •A.'?'?? OF CURB T;T,LAI COUPITY, PENNSYLVANIA. THE BOROUGH OF 7 ?.Iii I W.? ORPIL4NS 1 COURT DIVISION. COUNTY OF CMU37MLAND AID' STATE OF PENNSYLVANIA, DECEASED. NO. 21-93-573- ADJUDICATION AND DECREE AWARDING REAL ESTATE AND NOW, this j?„ day of October, 1994, no objections having been filed to the First and Final A-count and Statement of Proposed Distribution of RUTH BENDER and ALICE B EIRS, E,cecutrices of the Last Will and Testament of ADELBERT MAYLON WOOD a/k/a A. M. WOOD, late of the Borough of West Fairview, County of Cumberland and State of Penn- sylvania, deceased, within the time fixed by the Rules of Court, said Account was confirmed absolutely by this Court on October 11, 1994, and at the same time, the Schedule of Proposed Distribution was approved and Distribution was awarded in accordance with said Schedule. IT IS FLTRTHMI ADJUDGED AND DECREED, that in accordance with the said Final Account and Statement of Proposed Distribution as confirmed by the Court, that the Distribution of the following described real estate of the decedent is hereby awarded to RUTH BENDER/and ALICE BEERS, their heirs and assigns, as equal Tenants in Common, to wit:-- PARCEL NO. 1. ALL THOSE CERTAIN four. (4) tracts or Lots of Ground situate in East Pennsboro Township, Cumberland County, Pennsylvania, bounded and described as follows: r a No. 1. BEGINNING at a point 50.0 feet from the Northwest t "borner of a private road and a public road known as River $ 2 SO n oad; thence Northwardly along said River Road 50.0 feet to Q o caa island now or late of Caleb S. Brinton; thence Westwardly at A a 'right angles along said last mentioned hand 150.0 feet to a •a 7F °.epoint in a private alley; thence Southwardly at right angles e ga >% along said private alley 50.0 feet to a point; and thence at f$oaa16 Bright angles Eastwardly along lands now or late of Caleb S. oa a a>54 EBrinton 150.0 feet to the point and place of BEGINNING. r a - v PLAINTIFF'S o Cr m o j, EXHIBIT _ BooK fiu PAGEii5Q v?^-? -1- U -C-1 i No. 2. All that certain tract of land immediately East of tract No. 1 above, having a frontage of 50.0 feet on the River Road and extending at an even width along lands now or late of Caleb S. Brinton 200.0 feet, more or less, to low water mark of the Susquehanna River. No. 3. BEGINNING at the Northwest corner of a private road, locally known as Fairmont Road, and a public road known as the River Road; thence Northward along said River Road 50.0 feet to lands now or late of Charles P. Prince and Mary G. Prince, his wife; thence Westward at right angles along lands of the same 150.0 feet to a point in a private alley; tiaence Southward at right angles along; said private alley 59.2 feet, more or less, to the aforesaid private road locally known as Fairmont Road; thence Eastward along said private road, locally known as Fairmont Road, a distance of 150.0 feet, more or-less, to a point in the River Road, the place of BEGINNING. No. L?. ALL that certain tract of land immediately East of tract No. 1 herein, having a frontage of 50.0 feet on the River Road and extending an even width along lands now or late of Charles P. Prince and Mary G. Prince, his wife, 200.0 feet, more or less, to low water mark of the Susquehanna River. BEING the same premises which Charles P. Prince and Mary G. Prince, his wife, by their Deed dated June 5, 1952 and recorded in the Cumberland County Recorderts Office in Deed Book "Z", Volume 11?, Page 429, -- granted and conveyed unto Adelbert 11. Wood and Catberi.ne E. Wood., his wife. The said Catherine E. Wood died on June 12, 1961, whereupon sole title in said premises vested in her husband, Adelbert Maylon Wood, by operation of law. PARCEL NO. 2. ALL THOSE CERTAIN two (2) lots of land situate in the Township of East Pennsboro, County of Cumberland and State of Pennsylvania, bounded and described as follows: No. 1. BEGINNING at a point on the West side of the public road known as Front Street extended, at the Northerly line of other lands of Adelbert M. Wo6d and Catherine E. Wood, his wife, said point being located 100.0 feet North of the Northerly line of Fairmont Street (40 feet wide) ; thence Westwardly at right angles and along the Northerly line of said lands of Adelbert 14. Wood and Catherine E. Wood, his wife, 150.0 feet to a point; thence Northwardly parallel with Front Street 50.0 feet to a point; thence Eastwardly along lands now or late of S. M. Benion 150.0 feet to Front Street extended; thence Southwardly by the latter line 50.0 feet to the place of BEGINNING. soox iii F,Urii- A -2- . ' No. 2 BEGINNING at a point on the East side of the public road known as Front Street extended, at the Southerly line of lands of Adelbert M. Wood and Catherine E. Wood, his wife; thence Eastwardly along the latter, 125.0 feet, more or less, to the Susquehanna River Bank; thence Southwardly along the latter 50.0 feet, more or less, to a stake; thence South 71 degrees West, 127.0 feet, more or less, to Front Street: extended; thence North 21 degrees 51 minutes West along the latter line 25.0 feet, more or less, to the place of BEGINNING. BEING the same premises which Lemoyne Trust Company and Charles Ebner, Executors of the estate of Maude H. Brinton, deceased, by their Deed dated September 4, 1963 and recorded in the Cumberland County Recorder's Office in Deed Book "H", Volume 21, Page 302, granted and conveyed unto Adelbert M. Wood and Catherine E. Wood, his wife. The said Catherine E. Wood died on June 12, 19615 whereupon sole title in said premises vested in her husband, Adelbert Maylon Wood, by operation of law. PARCEL iJO. 3. ALL TKAT CERTAIN tract of land situate in East Pennsboro Township, Cumberland County, Pennsylvania., bounded and described as follows, to .wit: - BEGINNING at low water mark of the Susquehanna River, at the Southerly line of property of the Pennsylvania Railroad Company; thence South 72 degrees West, 131.0 feet to a point on the line of lands now or late of Manor Real Estate (!; Trust Company; thence along the same, South 15 degrees 39 minutes East, 236.0 feet, more or less, to a point; thence by the same, South 72 degrees west, 700.2 feet to a stone on line of lands of the Northern Central Railway Company; thence by the latter South 21 degrees 31 minutes East, 917.1 feet to a point; thence along the center of Fairmont Street, North 63 degrees 15 minutes East, 525.0 feet, more or less, to land of A. M. Wood; thence along said lands and lands now or late of Benion Zeigler Sersch, et al, North 21 degrees 51 minutes West, 659.0 feet to a point; thence by lands now or late of John Anderson in an Easterly direction 150.0 feet to a point on the West side of a public road; thence by said public road Northwardly 133.0 feet, more or less, to a point; thence Eastwardly crossing said road and along lands now or late of Jean Sersch, 230.0 feet, more or less to the Susquehanna River; and thence by the latter Northwardly 249.0 feet, more or less, to the point and place of BEGINNING. EXCEPTING AND EXCLUDING from the above described parcel of land, a certain Lot of Ground 100 feet by 150 feet conveyed by Adelbert 11. Wood, widower, by his Deed dated June 1, 1981 and recorded in the Cumberland County Recorder's Office in Deed Book "L", Volume 21, Page 140, to his son, Donald M. Wood, as more particularly shown on a Subdivision Plan recorded in the Cumberland County Recorder's Office in Plan Book No. 37, at Page 92. Coox A3 PACEii 2 BE!NG the same premises which Russell N. Eberly and Margaret Eberly, his wife, by their Deed dated September 26, 1964 and recorded in the Cumberland County Recorder's Office in Deed Book "K", Volume 21, Page 126, granted and conveyed unt Ad.elbert I.1. Wood, widower, the within decedent. By the Court, /,t 6" (F- 'L'I P. J. i HEREBI' CERTIFY that the precise grantees is: c/o Alice Beers 516 Enola Road West Fairview, residence of the PA 17 025 --onns luania SS ca_ (-' cz: -; a erland ..j r, he off ice for the recording of Deeds (I YO niber;and Count, Pa ?p cn1S Vol.,- Page tom. r- --, my hand and seal of office of - - ' ' . . : ? c• R o c: coo 1 (/7 -TI aoox 113 Pt, di 53 -4- 0 RUTH BENDER and IN THE COURT OF COMMON PLEAS OF ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW vi. NO.: 04-2496 CIVIL TERM DONALD WOOD, SR. Defendant ORDER AND NOW, this a Ii &? day of October, 2007, upon consideration of the within Praecipe, judgment is hereby entered in favor of Plaintiffs and against Defendant, DONALD WOOD, SR., for possession of real estate described in Plaintiffs' Exhibit 1 (attached hereto). /s/ Lal?4? W. 44-f, PROTHONOTARY ,,. DEPUTY RUTH BENDER and IN THE COURT OF COMMON PLEAS OF ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO.: 04-2496 CIVIL TERM DONALD WOOD, SR. Defendant PRAECIPE Kindly enter judgment upon the verdict issued by the Honorable J. Wesley Oler on August 7, 2007, a copy of which is attached hereto. Respectfully submitted, el---,*? f.., ?-e-? CHARLES E. PETRIE 3528 BRISBAN STREET HARRISBURG, PA 17111 (717) 561-1939 ATTORNEY FOR PLAINTIFFS RUTH BENDER and IN THE COURT OF COMMON PLEAS OF ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : V. CIVIL ACTION - LAW DONALD WOOD, SR., Defendant NO. 04-2496 CIVIL TERM VERDICT AND NOW, this 7th day of August, 2007, upon consideration of Plaintiffs' Complaint for Ejectment, and of Defendant's Counterclaim for unjust enrichment, and following a nonjury trial held on August 6, 2007, it is ordered and directed as follows: 1. On Plaintiffs' Complaint for Ejectment, the Court finds in favor of Plaintiffs and against Defendant, and Defendant is directed to vacate the property described in Plaintiffs' Exhibit 1 (attached hereto), and to remove all personalty in his possession therefrom, within 60 days of the date of this order; and 2. On Defendant's Counterclaim for unjust enrichment, the Court finds in favor of Plaintiffs and against Defendant. BY THE COUR esley qeJ Jr-.J, " C rles E. Petrie, Esq. 528 Brisban Street Harrisburg, PA 17111 Attorney for Plaintiff Ronald T. Tomasko, Esq. 219 State Street Harrisburg, PA 17101 Attorney for Defendant in Testimony ,?rf; Hof I hF,r:;:!nt,? ; at my hand D 51-/z 93 ?61a 9- /S =JZ % - i l . rPA d • and the seaiC-of 7. d This '' - _•_-???'.Q 4/ d9-1.5• iz93 - ao? • ' court °9-/?- ?? 9 3 60 2 • -? ±.;ounty IN RE: ES`.l~A`.?_:;?•1AYLON IN TILE COURT OF COM1,10I1 PLEAS OF WOOD a/k/a A.`?, F OF CMB MLAND COUNTY, PENNSYLVANIA. THE BOROUGH OF 'gir'?7" TiiVIEW :: ORPMANS1 COURT DIVISION. COUNTY OF CUI'IMERLAND A_l:? 1' STATE OF : . PENNSYLVANIA, DECEASED. .: NO. 21-93-573• ADJUDICATION AND DECREE AWARDING REAL ESTATE AM NOW, this day of October, 1994, no objections having been filed to the First and Final Account and Statement of Proposed Distribution of RUTH BENDER and ALICE BEERS, EXecutrices of the Last Will and Testament of ADELBERT MA.YLON WOOD a/k/a A. M. WOOD, late of the Borough of West Fairview, County of Cumberland and State of Penn- Sylvania, deceased, within the time fixed by the Rules of Court, said Account was confirmed absolutely by this Court on October 11, 1994, and at the same time, the Schedule of Proposed Distribution was approved and Distribution was awarded in accordance with said Schedule. IT IS FURTHM, ADJUDGED AND DECREED, that in accordance with the said Final Account and Statement of Proposed Distribution as confirmed by the Court, that the Distribution of the following described real estate of the decedent is hereby awarded to RUTH BENDER/and ALICE BEERS, their heirs and assigns, as equal Tenants in Common, to wit:- PARCEL NO. 1. ALL THOSE CERTAIN four. (4) tracts or Lots of Ground situate in East Pennsboro Township, Cumberland County, Pennsylvania, bounded and described as follows: a No. 1. BEGINNING at a point 50.0 feet from the Northwest 'corner of a private road and a public road known as River oad; thence Northwardly along said River Road 50,0 feet to gland now or late of Caleb S. Bri.nton; thence Westwardly at (-.right angles along said last mentioned land 150.0 feet to a epoint in a private alley; thence Southwardly at right angles 'along said private alley 50.0 feet to a point; and thence at ur Bright angles Eastwardly along lands now or late of Caleb S. „Brinton 150.0 feet to the point and place of BEGINNING. E C: 0 PLAINTIFF'S EXHIBIT ooK Jig PACE:LJ50 0 'U No. 2. All that certain tract of land immediately East of tract No. 1 above, having a frontage of 50.0 feet on the River Road and extending at an even width along lands now or late of Caleb S. Brinton 200.0 feet, more or less, to low water mark of the Susquehanna River. No. 3. BEGINNING at the Northwest corner of a private road, locally known as Fairmont Road, and a public road known as the River Road; thence Northward along said River Road 50.0 feet to lands now or late of Charles P. Prince and Mary G. Prince, his wife; thence Westward at right angles along lands of the same 150.0 feet to a point in a private alley; thence Southward at right angles along; said private alley 59.2 feet, more or less, to the aforesaid private road locally known as Fairmont Road; thence Eastward along said private road, locally known as Fairmont Road, a distance of 150.0 feet, more or-less, to a point in the River Road, the place of BEGINNING. No. L?. ALL that certain tract of land immediately East of tract No. 1 herein, having a frontage of 50.0 feet on the River Road and extending an even width along lands now or'late of Charles P. Prince and Teary G. Prince, his wife, 200.0 feet, more or less, to low water mark of the Susquehanna River. BEING the same premises which Charles P. Prince and Mary G. Prince, his wife, by their Deed dated June 5, 1952 and recorded in the Cumberland County Recorder's Office in Deed Book "Zrr, Volume 11?, Page 429,--granted and conveyed unto Adelbert M. Wood and Catherine E. Wood, his wife. The said Catherine E. Mood died on June 12, 1961, whereupon sole title in said premises vested in her husband, Adelbert Maylon Wood, by operation of law. PARCEL NO. 2. ALL THOSE CERTAIN two (2) lots of land situate in the Township of East Pennsboro, County of Cumberland and State of Pennsylvania, bounded and described as follows: No. 1. BEGINNING at a point on the West side of the public road known as Front Street extended, at the Northerly line of other lands of Adelbert M. Wood and Catherine E. Wood, his wife, said point being; located 100.0 feet North of the Northerly line of Fairmont Street (40 feet wide); thence Westwardly at right angles and along the Northerly line of said lands of Adelbert M. Wood and Catherine E. Wood, his wife, 150.0 feet to a point; thence Northwardly parallel with Front Street 50.0 feet to a point; thence Eastwardly along lands now or late of S. M. Benion 150.0 feet to Front Street extended; thence Southwardly by the latter line 50.0 feet to the place of BEGINNING. aoox 113 F„crL115i -2- No. 2 BEGINNING at a point on the East side of the public road known as Front Street extended, at the Southerly line of lands of Adelbert M. Wood and Catherine E. Wood, his wife; thence Eastwardly along the latter, 125.0 feet, more or less, to the Susquehanna River Bank; thence Southwardly along the latter 50.0 feet, more or less, to a stake; thence South 71 degrees West, 127.0 feet, more or less, to Front Street: extended; thence North 21 degrees 51 minutes West along the latter line 25.0 feet, more or less, to the place of BEGINNING. BEING the same premises which Lemoyne Trust Company and Charles Ebner, Executors of the Estate of Maude H. Brinton. deceased, by their Deed dated September 4, 1963 and recorded in the Cumberland County Recorder' s Office in Deed Book "H" , Volume 21, Page 302, granted and conveyed unto Adelbert M. Wood and Catherine E. Wood, his wife. The said Catherine E. Wood died on June 12, 1961, whereupon sole title in said premises vested in her husband, Adelbert Maylon Wood, by operation of law. PARCEL ALL TILkT CERTAIN tract of land situate in East Pennsboro Township, Cumberland County, Pennsylvania., bounded and described as follows, to -wit: - BEGINNING at low water mark of the Susquehanna River, at the Southerly line of property of the Pennsylvania Railroad Company; thence South 72 degrees West, 131.0 feet to a point on the line of lands now or late of Manor Real Estate E, Trust Company; thence along the same, South 15 degrees 39 minutes East, 236.0 feet, more or less, to a point; thence by the same, South 72 degrees West, 700.2 feet to a stone on line of lands of the Northern Central Railway Company; thence by the latter South 21 degrees 31 minutes East, 917.1 feet to a point; thence along the center of Fairmont Street, North 63 degrees 15 minutes East, 525.0 feet, more or less, to land of A. M. Wood; thence along said lands and lands now or late of Benion Zeigler Sersch, et al, North 21 degrees 51 minutes West, 659.0 feet to a point; thence by lands now or late of John Anderson in an Easterly direction 150.0 feet to a point on the West side of a public road; thence by said public road Northtirardly 133.0 feet, more or less, to a point; thence Eastwardly crossing said road and along lands now or late of Jean Sersch, 230.0 feet, more or less to the Susquehanna River; and thence by the latter Nouthwardly 249.0 feet, more or less, to the point and place of BEGINNING. EXCEPTING AND EXCLUDING from the above described parcel of land, a certain Lot of Ground 100 feet by 150 feet conveyed by Adelbert Ii. Wood, caidower, by his Deed dated June 1, 1981 and recorded in the Cumberland County Recorder's Office in Deed Book "L", Volume 21; Page 110, to his son, Donald M. Wood, as more particularly shown on a Subdivision Plan recorded in the Cumberland County Recorder's Office in flan Book No. 37, at Page 92. BOOK 113 PAGE1152 Y BEING the same premises which Russell AT. Eberly and Margaret Eberly, his wife, by their Deed dated September 281 1964 and recorded in the Cumberland County Recorder's Office in Deed Book "Ii", Volume 21, Page 126, granted and conveyed unt Adelbert INT. Wood, widower, the within decedent. By the Court, / J? 6"(F- ,1 P. J. 1 HEREBY CERTIFY that the precise grantees is: c/o Alice Beers 516 Enola Road West- Fairview, residence of the PA 17025 -?,,nnsylvania C7, C_ y Imberiand S office for the recording of Deeds `or.C lbeiland Count Pa F IL V ..) . ; nny iland and seat of office of Ll = J ? C C'. -- r i r Cic7 Zt `rte aoox 113 PnAi S3 -4- V hJ 0 C7 C=) -Tj 1 CO ? C CHARLES E. PETRIE, ESQUIRE ID# 29029 3528 Brisban Street Harrisburg, Pennsylvania 17111 (717) 561-1939 Attorney for Plaintiff RUTH BENDER and ALICE BEERS, Plaintiffs Vs. DONALD WOOD, SR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NUMBER: 04-2496 CIVIL PRAECIPE FOR WRIT OF POSSESSION NOW COME the Plaintiffs, Ruth Bender and Alice Beers, by and through their attorney, Charles E. Petrie, and respectfully represent as follows: 1. That on August 7, 2007, a Verdict was handed down by the Honorable J. Wesley Oler, Jr., a copy of which is attached hereto, directing the above Defendant, DONALD WOOD, SR., "to vacate the premises described in Plaintiffs' Exhibit 1 (attached hereto) and to remove all personalty in his possession therefrom, within 60 days of the date of this order." 2. Sixty days have passed since the entry of the Order. 3. Defendant has not vacated the property, nor has he removed his personalty from the premises. WHEREFORE, Plaintiffs respectfully request that an Order of Possession be entered against the Defendant, DONALD WOOD, SR., for possession by the Plaintiffs of the premises described in the Exhibit attached hereto. Respectfully submitted, zf,4,4 /..L? CHARLES E. PETRIE 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 Attorney for Defendants C? Gt W k a ? R 'rA?ri? 00 DZ ' i 1 Zo RUTH BENDER and ALICE BEERS, Plaintiffs V. DONALD WOOD, SR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-2496 CIVIL TERM VERDICT AND NOW, this 71h day of August, 2007, upon consideration of Plaintiffs' Complaint for Ejectment, and of Defendant's Counterclaim for unjust enrichment, and following a nonjury trial held on August 6, 2007, it is ordered and directed as follows: 1. On Plaintiffs' Complaint for Ejectment, the Court finds in favor of Plaintiffs and against Defendant, and Defendant is directed to vacate the property described in Plaintiffs' Exhibit 1 (attached hereto), and to remove all personalty in his possession therefrom, within 60 days of the date of this order; and 2. On Defendant's Counterclaim for unjust enrichment, the Court finds in favor of Plaintiffs and against Defendant. C les E. Petrie, Esq. 528 Brisban Street Harrisburg, PA 17111 Attorney for Plaintiff Ronald T. Tomasko, Esq. 219 State Street Harrisburg, PA 17101 Attorney for Defendant BY THE COUR In Testimony my hand sea) a ?'d ,..7.;. .-A and the seal , iz93 d `J 1-5--J 7 j.3 6 J 1 <J9-45' Jz93 - oa f -vv • K "•?: '<?:? C" aur t 93 aCIPT TZE: L;S'.rA? .?11'AYL0F IN TILF: COURT OF COMAOH PLEAS OF WOOD a/k/a •A.'f,?? .?4`$?OF CURB ;t;LAT1D COUNTY, PENNSYLVANIA. THE BOROUGH OF ''(?:?:_T 'M I ,W ORPI-LANST COURT DIVISION. COUNTY OF CUt'IM RLAND ATM, STATE OF :. PENNSYLVANIA, DECEASED. NO. 21-93-573- ADJUDICATION AND DECREE AWARDING REAL ESTATE AND NOW, this _/z/- day of October, 1994, no objections having been filed to the First and Final Account and Statement of Proposed Distribution of RUTH BENDER and ALICE BEERU, Enecutrices of the Last Will and Testament of ADELBERT PLAYLON [MOOD a/k/a A. M. WOOD, late of the Borough of West Fairview, County of Cumberland and State of Penn- Sylvania, deceased, within the time fixed by the Rules of Court, said Account was confirmed absolutely by this Court on October 11, 1994, and at the same time, the Schedule of Proposed Distribution was approved and Distribution was awarded in accordance with said Schedule. IT IS FURTHM, ADJUDGED AND DECREED, that in accordance with the said Final Account and Statement of Proposed Distribution as confirmed by the Court, that the Distribution of the following described real estate of the decedent is hereby awarded to RUTH BENDER/and ALICE BEERS, their heirs and assigns, as equal Tenants in Conunon, to wit:- PARCEL NO. 1. 9 s $2 :co o? 15 CE Q 0 Maoa oaf r _ for o¢mo J _ U v ALL THOSE CERTAIN four - (4) tracts or Lots of Ground situate in East Pennsboro Township, Cumberland County, Pennsylvania, bounded and described as follows: No. 1. BEGINNING at a point 50.0 feet from the Northwest 'Corner of a private road and a public road known as River 'oad; thence Northwardly along said River Road 50.0 feet to ;-land now or late of Caleb S. Brinton; thence Westwardly at I right angles along said last mentioned land 150.0 feet to a 'epoint in a private alley; thence Southwardly at right angles ,along said private alley 50.0 feet to a point; and thence at Bright angles Eestwardly along lands now or late of Caleb S. :„printon 150.0 feet to the point and place of BEGINNING. EC PLAINTIFF'S EXHIBIT z, Rbx 113 PAcEii50 v?^--' -1- 'U v -1 No. 2. All that certain tract of land immediately East of tract No. 1 above, having a frontage of 50.0 feet on the River Road and extending at an even width along lands now or late of Caleb S. Brinton 200.0 feet, more or less, to low water mark of the Susquehanna River. No. 3. BEGINNING at the Northwest corner of a private road, locally known as Fairmont Road, and a public road known as the River Road; thence Northward along said River Road 50.0 feet to lands now or late of Charles P. Prince and Plary G. Prince, his wife; thence Westward at right angles along lands of the same 150.0 feet to a point in a private alley; thence Southward at right angles along; said private alley 59.2 feet, more or less, to the aforesaid private road locally known as Fairmont Road; thence Eastward along said private road, locally known as Fairmont Road, a distance of 150.0 feet, more or-less, to a point in the River Road, the place of BEGINNING. No, L?. ALL that certain tract of land immediately East of tract No. 1 herein, having a frontage of 50.0 feet on the River Road and extending an even width along lands now or'late of Charles P. Prince and Mary G. Prince, his wife, 200.0 feet, more or less, to low water mark of the Susquehanna River. BEING the same premises which Charles P. Prince and Mary G. Prince, his wife, by their Deed dated June 5, 1952 and recorded in the Cumberland County Recorderts Office in Deed Book "Z", Volume 11?, Page 429,--granted and conveyed unto Adelbert 14. Wood and Catherine E. blood, his wife. The said Catherine E. Wood died on June 12, 1961, whereupon sole title in said premises vested in her husband, Adelbert Maylon Wood, by operation of law. PARCEL NO. 2. ALL THOSE CERTAIN two (2) lots of land situate in the Township of East Pennsboro, County of Cumberland and State of Pennsylvania, bounded and described as follows: No. 1. BEGINNING at a point on the West side of the public road known as Front Street extended, at the Northerly line of other lands of Adelbert M. Wood and Catherine E. Wood, his wife, said point being located 100.0 feet North of the Northerly line of Fairmont Street (40 feet wide) ; thence Westwardly at right angles and along the Northerly line of said lands of Adelbert M. Wood and Catherine E. Wood, his wife, 150.0 feet to a point; thence Northwardly parallel with Front Street 50.0 feet to a point; thence Eastwardly along lands now or late of S. 1-I. Benion 150.0 feet to Front Street extended; thence Southwardly by the latter line 50.0 feet to the place of BEGINNING. Boox A3 F' "i- .5i -2- No. 2 BEGINNING at a point on the East side of the public road known as Front Street extended, at the Southerly line of lands of Adelbert M. Wood and Catherine E. Wood, his wife; thence Eastwardly along the latter, 125.0 feet, more or less, to the Susquehanna River Bank; thence Southwardly along the latter 50.0 feet, more or less, to a stake; thence South 71 degrees West, 127.0 feet, more or less, to Front Street: extended; thence North 21 degrees 51 minutes West along the latter line 25.0 feet, more or less, to the place of BEGINNING. BEING the same premises which Lemoyne Trust Company and Charles Ebner, E?:ecutors of the Estate of Maude H. Brinton, deceased, by their Deed dated September 4, 1963 and recorded in the Cumberland County Recordert s Office in Deed Book "Htt, Volume 21, Page 302, granted and conveyed unto Adelbert M. Mood and Catherine E. Wood, his wife. The said Catherine E. Wood died on June 12, 1961s whereupon sole title in said premises vested in her husband, Adelbert Maylon blood, by operation of law. PAR EE N0. 3. ALL TKkT CERTAIN tract of land situate in East Pennsboro Township, Cumberland County, Pennsylvania., bounded and described as follows, to wit:- BEGITRTING at low water mark of the Susquehanna River, at the Southerly line of property of the Pennsylvania Railroad Company; thence South 72 degrees West, 131.0 feet to a point on the line of lands now or late of Manor Real Estate &. Trust Company; thence along the same, South 15 degrees 39 minutes East, 236.0 feet, more or less, to a point; thence by the same, South 72 degrees West, 700.2 feet to a stone on line of lands of the Northern Central Railway Company; thence by the latter South 21 degrees 31 minutes East, 917.1 feet to a point; thence along the center of Fairmont Street, North 63 degrees 15 minutes East, 525.0 feet, more or less, to land of A. M. Wood; thence along said lands and lands now or late of Benion Zeigler Sersch, et al, North 21 degrees 51 minutes West, 659.0 feet to a point; thence by lands now or late of John Anderson in an Easterly direction 150.0 feet to a point on the West side of a public road; thence by said public road Northwardly 133.0 feet, more or less, to a point; thence Eastwardly crossing said road and along lands now or late of Jean Sersch, 230.0 feet, more or less to the Susquehanna River; and thence by the latter Northwardly 249.0 feet, more or less, to the point and place of BEGINNING. EXCEPTING AND EXCLUDING from the above described parcel of land, a certain Lot of Ground 100 feet by 150 feet conveyed by Adelbert I.4. Wood, widower, by his Deed dated June 1, 1981 and recorded in the Cumberland County Recorder's Office in Deed Book %", Volume 21, Page 11V0, to his son, Donald M. Wood, as more particularly shown on a Subdivision Plan recorded in the Cumberland County Recorder's Office in flan Book No. 37, at Page 92. BOOK 113 pwii52 BE!NG the same premises which Russell Y. Eberly and Margaret Eberly, his wife, by their Deed dated September 26, 196L? and recorded in the Cumberland County Recorder's Office in Deed Book 11K11.1 th86Wlthlngranted II. ?OOdlley`J121, dower, page d•ecedent. conveyed unt Adel By the Court, P. J. 1 HEREBY CERTIFY that the precise grantees is: c/o Alice Beers 516 Enola Road West Fairview, residence of the PA 17025 _ .: nnsylvania ? SS cry `_ :-; "Litz berland O m _ i ;.;office for the recording of Deeds C7 _ „.j -t,if berland Count , Pa Page Vol 4 -? E . .,n ? 1 my nand and sea! of office of S? ? C.) 1 - R o r cry =' r ...: c: ca 'tl soox 113 Pty Ai 53 -4- Ronald T. Tomasko, Esquire Sup. Ct. I.D. No. 61190 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rttomasko@mette.com RUTH BENDER and ALICE BEERS, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. DONALD WOOD, SR., : CIVIL DIVISION : NO. 04-2496-CIVIL Defendant MOTION FOR STAY PENDING APPEAL Donald Wood, Sr., by his attorneys, Mette, Evans & Woodside, moves for a stay from this Court's August 6, 2007 Order, and in support thereof represents as follows: 1. This proceeding was commenced by Plaintiffs Ruth Bender and Alice Beers on June 2, 2004 by the filing of a Complaint for Ejectment against the Defendant for property occupied by the Defendant. 2. On August 3, 2004, Defendant Donald Wood, Sr. filed an Answer with New Matter and Counterclaim which alleged under the heading "New Matter" that Defendant had made substantial and costly improvements to the real property, and that Plaintiff would be unjustly enriched by ejecting the Defendant without compensating him for the improvements made by the Defendant. 3. On August 12, 2004, Plaintiffs filed a Reply to New Matter and Counterclaim denying Defendant's allegations and asserting that Plaintiffs owned the material used to make the Defendant's improvements. 4. On August 6, 2007, this Court considered the Plaintiffs' Complaint for Ejectment and the Defendant's counterclaim for unjust enrichment at a non jury trial and issued an Order in favor of Plaintiffs' Complaint for Ejectment. 5. On August 16, 2007, Defendant filed a Motion for Post Trial Relief on the grounds that the Court's verdict failed to mentioned the substantial improvements made by the Defendant to the parcel in question, including the building and purchase of a pole building, a macadam driveway and an extension of electrical service, and for failure of the Court's August 6, 2007 Order to mention the $8,000.00 plus cash payments the Defendant had made to the Plaintiffs. As such, the Defendant was seeking a modification or change to the Court's August 6, 2007 Order to compensate the Defendant for the improvements to the parcel and/or cash payments made to the Plaintiffs. 6. On August 22, 2007 Plaintiffs filed an Answer to Defendant's Motion for Post Trial Relief that generally denied the averments contained in Defendant's Motion for Post-Trial Relief and Plaintiffs sought dismissal of the Defendant's Motion for Post Trial Relief. 7. The parties filed Briefs with the Court five days before oral argument on Defendant's Motion for Post-Trial Relief that was scheduled for October 11, 2007 before this Court. 8. This Court heard oral argument on the Defendant's Motion for Post Trial Relief was heard before this Court on October 11, 2007. 9. On October 12, 2007 this Court issued a one sentence Order denying Defendant's Motion for Post Trial Relief. 10. Defendant has operated his business on the parcel in question for over two decades, both before and after the Plaintiffs came into equitable ownership. Testimony at trial is 2 uncontraverted that during Defendant's time on the parcel Defendant purchased and constructed a large pole building, a macadam driveway and electrical service. Further testimony at trial established that, at some point after this action was filed, the Defendant tendered, and Plaintiffs agreed to accept, a monthly "rental payment" for the Defendant's continued use of the parcel in question. Plaintiffs filed the action 11 years after coming into equitable ownership, and only refused Defendant's payment of rent in July 2007, three years after initiating this action and just before trial in this matter. 11. Under Pennsylvania law the doctrine of unjust enrichment is essentially an equitable one. Schenck v. KE. David, Ltd., 666 A.2d 327,328 (Pa. Super. 1995). The Pennsylvania Supreme Court has held that equitable principals are appropriate and necessary to resolve a legal action involving ejectment. Wingert v. T. W. Phillips Gas and Oil Company, 157 A.2d 92 (Pa. 1959). The doctrine of unjust enrichment, according to Pennsylvania precedent, indicates that the Defendant is entitled to compensation for the improvements made to the Plaintiffs' land and/or reimbursement for the rent monies paid. See Chesney v. Stevens, 644 A.2d 1240 (Pa.Super.1994); Drysdale v. Woerth, 153 F.Supp.2d 678 (E. D.Pa. 2001); Wingert, supra; Harbor Marine Company v. Nolan, 366 A.2d 936 (Pa.Super.1976); Keesler v. Pustay, 29 Pa. D.&C.3?d 223 (Monroe Cty, 1983). Accordingly, the Defendant avers that he has a substantial likelihood of prevailing on the merits of his appeal. 12. Unless a stay is granted, Donald Wood, Sr. will lose the use of the parcel in question and suffer irreparable harm to his business, reputation, and financial interests. On the other hand, the burden on the Plaintiffs will be nonexistent since the parcel in question is unimproved (i.e., no water or sewer), and granting a stay will maintain the status quo as has been 3 the case since the Plaintiffs came into equitable ownership of the property some fourteen (14)plus years ago. 13. The stay requested by the Defendant will not adversely affect the public interest as the land in question is privately held by the Plaintiffs, and solely occupied by the Defendant, and does not in any way affect the public. WHEREFORE, the Defendant respectfully requests this Court to enter a stay of all proceedings in this action pending resolution of the appeal to the Superior Court. Respectfully METTE, EV By: Ronald T. Tomasko, Esquire Attorney I.D. No. 61190 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rttomasko@mette.com Attorney for Defendant 4 na F ) C n „ a Ronald T. Tomasko, Esquire Sup. Ct. I.D. No. 61190 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rttomasko@mette.com RUTH BENDER and ALICE BEERS, DONALD WOOD, SR., Plaintiffs V. Defendant COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA CIVIL DIVISION NO. 04-2496-CIVIL NOTICE OF APPEAL Notice is hereby given that Donald Wood, Sr., the Defendant above named, hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on October 12, 2007. This order has been reduced to judgment and entered in the docket as evidenced by the attached copy of the docket entry. Respectfully METTE, EV. By: Date: November 13, 2007 Ronald T. Tomasko, Esquire Attorney I.D. No. 61190 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rttomasko@mette.com Attorney for Defendant 481930v1 14442'411062007 Cumberland County Prothonotary's Office Page 1 PYS510 Civil Case Print 2004-02496 BENDER RUTH ET AL (vs) WOOD DONALD SR Reference No... Filed......... 6/02/2004 Case Type.....: COMPLAINT - EJECTMENT Time.........: 3:20 Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info BENDER RUTH PLAINTIFF PETRIE CHARLES E 698 FRONT STREET ENOLA PA 17025 BEERS ALICE PLAINTIFF PETRIE CHARLES E 199 FAIRMONT AVENUE WEST FAIRVIEW PA 17025 WOOD DONALD SR DEFENDANT 700 HIGH STREET WEST FAIRVIEW PA 17025 Judgment Index Amount Date Desc WOOD DONALD SR 10/29/2007 JUDGMENT ON VERDICT WOOD DONALD SR 10/29/2007 WRIT OF POSSESSION ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 6/02/2004 COMPLAINT - EJECTMENT ------------------------------------------------------------------- 6/28/2004 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT - EJECTMENT Ret Type.: Regular Litigant.: WOOD DONALD SR Address..: 700 HIGH STREET Cty/St/Z • WEST FAIRVIEW, PA 17025 Hnd To: BARB WOOD, WIFE Shf/D ty.: SHAWN HARRISON Date/ Time: 06/24/2004 1824:00 Costs....: $38.35 Pd By: CHARLES PETRIE 06/28/2004 ------------------------------------------------------------------- 7/23/2004 IMPORTANT NOTICE FILED (DEFAULT JUDGMENT) ------------------------------------------------------------------- 8/03/2004 ANSWER WITH NEW MATTER AND COUNTERCLAIM - BY MICHAEL A KORANDA ESQ ------------------------------------------------------------------- 8/12/2004 REPLY TO NEW MATTER AND COUNTERCLAIM BY CHARLES E PETRIE ESQ ------------------------------------------------------------------- 4/05/2007 PRAECIPE FOR LISTING CASE FOR TRIAL - BY CHARLES E PETRIE ATTY FOR PLFFS ------------------------------------------------------------------- 4/12/2007 ORDER OF COURT - 04-10-07 - IN RE: NONJURY TRIAL - SCHEDULED 08-06-07 AT 9:30 AM IN CR 1 CUMB CO COURTHOUSE - BY J WESLEY OLER JR J - COPIES MAILED 04-12-07 ------------------------------------------------------------------- 8/07/2007 ORDER OF COURT - DATED 08-06-07 - IN RE: PLFFS COMPLAINT FOR EJECTMENT AND DEFTS COUNTERCLAIM FOR UNJUST ENRICHMENT - FOLLOWING A NONJURY TRIAL THE RECORD IS DECLARED CLOSES AND THE MATTER IS TAKEN UNDER ADVISEMENT - BY J WESLEY OLER JR J - COPIES MAILED 08-08-07 ------------------------------------------------------------------- 8/07/2007 VERDICT - DATED 08-07-07 - IN RE: PLFFS COMPLAINT IN EJECTMENT AND DEFTS COUNTERCLAIM FOR UNJUST ENRICHMENT - FOLLOWING A NONJURY TRIAL HELD ON 08-06-07 - 1- ON PLFFS COMPLAINT FOR EJECTMENT THE COURT FINDS IN FAVOR OF PLFFS AND AGAINST DEFT AND DEFT IS DIRECTED TO VACATE THE PROPERTY DESCRIBED IN PLFFS EXHIBIT 1 (ATTACHED HERETO) AND TO REMOVE ALL PERSONALITY IN HIS POSSESSION THEREFROM WITHIN 60 DAYS OF THE DATE OF THIS ORDER AND 2- ON DEFTS COUNTERCLAIM FOR UNJUST ENRICHMENT THE COURT FINDS IN FAVOR OF PLFFS AND AGAINST DEFT - BY J WESLEY JR J - COPIES MAILED 14442411062007 Cumberland County Prothonotary's Orfi.ce Page 2 PYS510 Civil Case Print 2004-02496 BENDER RUTH ET AL (vs) WOOD DONALD SR Reference No... Filed......... 6/02/2004 Case Type.....: COMPLAINT - EJECTMENT Time.........: 3:20 Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: 08-08-07 ---------------------------------- 8/20/2007 DEFENDANT'S MOTION FOR POST-TRIAL RELIEF - BY RONALD T TOMASKO ATTY FOR DEFT ----------------------------------------------------------- 8/22/2007 ANSWER TO DEFENDANTS MOTION FOR POST-TRIAL RELIEF - BY CHARLES E PETRIE ATTY FOR PLFFS -------------------------------------------------------------- 8/27/2007 ORDER OF COURT - DATED 08-27-07 - IN RE: DEFTS MOTION FOR POST-TRIAL RELIEF AND PLFFS ANSWER TO DEFTS MOTION FOR POST-TRIAL RELIEF - ORAL ARGUMENT IS SCHEDULED FOR 10-11-07 AT 1;30 PM IN COURTROOM NO 1 CUMBERLAND COUNTY COURTHPUSE CARLISLE PA - BRIEFS ARE DUS 5 DAYS PRIOR TO THAT DATE - BY J WESLEY OLER JR J - COPIES MAILED 08-27-07 ------------------------------------------------------------------- 8/27/2007 CERTIFICATE OF SERVICE - ORDER DATED 08-27-07 - BY RONALD T TOMASKO ATTY FOR DEFT -------------------------------------------------------------------- 10/12/2007 ORDER OF COURT - DATED 10/12/07 - UPON CONSIDERATION OF DEFENDANT'S MOTION FOR POST-TRIAL RELIEF AND FOLLOWING ORAL 10 ARSGUMENT ENIEDHELBYOJ WES /LEY00LERFJRDJNT'COPOIESNMAILED010/12/007 RELIEF -------------------------------------------------------------------- 10/29/2007 PRAECIPE - KINDLY ENTER JUDGMENT UPON THE VERDICT ISSUED BY THE HONORABLE J WESLEY OLER ON AUGUST 7, 2007 BY CHARLES E PETRIE ESQ ------------------------------------------------------------------- 10/29/2007 NOTICE MAILED TO DEFENDANT ------------------------------------------------------------------- 10/29/2007 PRAECIPE FOR WRIT OF POSSESSION AND WRIT OF POSSESSION ISSUED $2.00 DUE CO BY CHARLES E PETRIE ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Bw*Bal***Py**mts/Ad? End Bal *********************************** ****** ******************************* COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 JDMT 14.00 14.00 .00 WRIT OF POSSESS 24.00 24.00 --- --- - .00 --------- -------------- 118.50 ---- -- 118.50 .00 * End of Case Information ******************************************************************************** 1 }-estimony whereof, t here unto set ? ha+??q the saw of said Court at Carlisle. Pa, Thm -? g n., i - - Ornth" noon Ronald T. Tomasko, Esquire Sup. Ct. I.D. No. 61190 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rttomasko@mette.com RUTH BENDER and ALICE BEERS, DONALD WOOD, SR., Plaintiffs V. Defendant COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA : CIVIL DIVISION NO. 04-2496-CIVIL ORDER FOR TRANSCRIPT To: Michele Eline Office of the Court Reporter 1 Courthouse Square Carlisle, PA 17013 A Notice of Appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and file the transcript in the matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Respectfully Date: November 13, 2007 METTE, By: ?eyy Tomasko, Esquire AttornI.D. No. 61190 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rttomasko@mette.com Attorney for Defendant 481931v1 Ronald T. Tomasko, Esquire Sup. Ct. I.D. No. 61190 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rttomasko@mette.com RUTH BENDER and ALICE BEERS, DONALD WOOD, SR., Plaintiffs V. Defendant COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA CIVIL DIVISION NO. 04-2496-CIVIL PROOF OF SERVICE I hereby certify that a true and correct copy of Defendant's Notice of Appeal, Order for Transcript and Motion for Stay of Proceedings pending Appeal was served upon the parties listed below pursuant to Rule 906 of the Pennsylvania Rules of Appellate Procedure this 13th day of November, 2007, by United States Mail, First Class, Postage Pre-paid except where noted otherwise, which service satisfies the requirements of Pa. R.A.P. 121: The Honorable J. Wesley Oler, Jr. 1 Courthouse Square Carlisle, PA 17103 Court Administrator's Office 1 Courthouse Square, 3R Carlisle, PA 17013 Charles E. Petrie, Esquire 3528 Brisban St. Harrisburg, PA 17111 Attorney for Plaintiffs Michele Eline Office of Court Reporter 1 Courthouse Square Carlisle, PA 17013 Respectfully METTE, EV By: RoAald T: Tomasko, Esq Attorney I.D. No. 61190 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rttomasko@mette.com Attorney for Defendant Date: November 13, 2007 481937v1 D d O ? d ? C3 i C. c d ? -n _ -a W N ,Ln -G N COMMONWEALTH OF PENNSYLVANIA Superior Court of Pennsylvania Karen Reid Bramblett, Esq. Middle District Prothonotary James D. McCullough, Esq. November 15, 2007 Deputy Prothonotary Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 1907 MDA 2007 Ruth Bender and Alice Beers V. Donald Wood, Sr., Appellant Dear Mr. Long: 100 Pine Street. Suite 400 Harrisbure. PA 17101 717-772-1294 www.superior.court,state.pa.us 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. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary VSL 3:40 P.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 1907 MDA 2007 Page 1 of 3 Z%#4 November 15, 2007 Ruth Bender and Alice Beers V. Donald Wood, Sr., Appellant Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: November 14, 2007 Awaiting Original Record Journal Number: Case Category: Civil CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: November 29, 2007 Next Event Type: Original Record Received Next Event Due Date: January 14, 2008 11/15/2007 3023 3:40 PA Appeal Docket Sheet Docket Number: 1907 MDA 2007 Superior Court of Pennsylvania Page 2 of 3 AAL November 15, 2007 COUNSEL INFORMATION Appellant Wood Sr., Donald Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Tomasko, Ronald Thomas Bar No.: 61190 Law Firm: Mette, Evans & Woodside Address: 3401 N Front Street Fl 2 PO Box 5950 Harrisburg, PA 17110-0950 Phone No.: (717)232-5000 Fax No.: (717)236-1816 Receive Mail: Yes E-Mail Address: rttomasko@mette.com Receive E-Mail: No Appellee Ruth Bender and Alice Beers Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Petrie, Charles E. Bar No.: 29029 Law Firm: Address: 3528 Brisban Street Harrisburg, PA 17111 Phone No.: (717)561-1939 Fax No.: (717)561-4121 Receive Mail: Yes E-Mail Address: Receive E-Mail: No FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 11/14/07 Notice of Appeal 60.00 60.00 2007SPRMD001073 TRIAL COURTIAGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: October 12, 2007 Judicial District: 9 Date Documents Received: November 14, 2007 Date Notice of Appeal Filed: November 13, 2007 Order Type: Order Entered OTN: Judge: Oler, Jr., J. Wesley Lower Court Docket No.: 2004-02496 Judge ORIGINAL RECORD CONTENTS 1111512007 3023 3:40 P.M. Appeal Docket Sheet Docket Number: 1907 MDA 2007 Page 3 of 3 November 15, 2007 Superior Court of Pennsylvania ZVIL Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By November 14, 2007 Notice of Appeal Filed Appellant Wood Sr., Donald November 15, 2007 Docketing Statement Exited (Civil) Middle District Filing Office 11 /15/2007 3023 C-) ra s=' b rt=€z, CD RUTH BENDER and IN THE COURT OF COMMON PLEAS OF ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW DONALD WOOD, SR., Defendant NO. 04-2496 CIVIL TERM ORDER OF COURT AND NOW, this 16th day of November, 2007, upon consideration of the Notice of Appeal filed in the above-captioned matter, Appellant is DIRECTED, pursuant to Pa. R.A.P. 1925(b), to file of record in this Court and to serve upon the undersigned judge a concise Statement of Matters Complained of on Appeal no later than 14 days after entry of this Order. Charles E. Petrie, Esq. 3528 Brisban Street Harrisburg, PA 17110 Attorney for Plaintiffs Ronald T. Tomasko, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant BY THE COURT, I / ?" i",?; J. esley Ole , Jr., :rc VINVAIASNIN]d AiNincn 91 %Z Wd b 1 A€lN LOOZ AdVIONOrkkoid aU 3O Ronald T. Tomasko, Esquire Sup. Ct. I.D. No. 61190 METTE, EVANS & WOODSIDE 3401 North Front Street Harrisburg, PA 17110-0950 (717) 232-5000 rttomasko@mette.com RUTH BENDER and ALICE BEERS, DONALD WOOD, SR., Plaintiffs V. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO. 04-2496-CIVIL AMENDMENT TO DEFENDANT'S MOTION FOR STAY PENDING APPEAL Donald Wood, Sr., by his attorneys, Mette, Evans & Woodside, moves to amend his MOTION FOR STAY PENDING APPEAL filed with the PROTHONOTARY of Cumberland County on November 13, 2007, by adding as follows: 14. Except for the rulings by Judge Oler discussed in the Defendant's Motion for Stay Pending Appeal, no other judge has ruled upon any other issue in the same or related matter. 15. The concurrence of Mr. Charles E. Petrie, opposing counsel of record, was sought in a telephone conversation between Attorney Sean M Concannon, of Attorney Ronald Tomasko's office, and Attorney Petrie, on November 27, 2007 at 3:00 pm. Attorney Petrie did not concur in the filing of the Defendant's Motion for Stay Pending Appeal. Resl ME'. By: L I L L%-I1 11 V,' 1. L. l\ V. V i l/ V 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rttomasko@mette.com Attorney for Defendant 6 1 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Charles E. Petrie, Esquire 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 Attorney for Plaintiffs Respectfully submitted, METTE, EV By: November 27, 2007 ---1 __- Attorney I.D. No. 61190 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rttomasko@mette.com Attorney for Defendant 7 ci r co 4 ja % CHARLES E. PETRIE, ESQUIRE ID# 29029 3528 Brisban Street Harrisburg, Pennsylvania 17111 (717) 561-1939 Attorney for Plaintiffs RUTH BENDER and ALICE BEERS, Plaintiffs Vs. DONALD WOOD, SR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NUMBER: 04-2496 CIVIL ANSWER TO DEFENDANT'S MOTION FOR STAY PENDING APPEAL NOW COME the Plaintiffs, RUTH BENDER and ALICE BEERS, by and through their attorney, Charles E. Petrie, and respectfully answer Defendant's Motion for Stay Pending Appeal as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. r 10. Denied. Defendant has operated this business only for about 13 years after the Plaintiffs came into legal (not equitable) ownership. It is further denied that uncontraverted testimony was presented at trial that Defendant purchased and constructed a large pole building on the premises. In fact, the building material was inherited from the parties' father's estate by Plaintiff Alice Beers. 11. Admitted in part and denied in part. It is admitted under Pennsylvania law the doctrine of unjust enrichment is essentially an equitable one. It is denied that in every case an occupant of land is entitled to compensation for improvements made to the land. It is denied that Defendant has a substantial likelihood of prevailing on the merits of his appeal. 12. Denied. Defendant will not suffer irreparable harm to his business, reputation and financial interests. The facts set forth in the second sentence are irrelevant. Plaintiffs may maintain and utilize the premises any way they see fit. 13. Admitted. 14. Admitted. 15. Admitted. NEW MATTER 16. Plaintiffs incorporate by reference their Answers to paragraphs 1 through 13 hereinabove by reference as if fully set forth herein. 17. Plaintiffs filed their Complaint for Ejectment on June 2, 2004. 18. Defendant has had more than three years' notice of the Plaintiffs' intention to eject him from the property. 19. Defendant has had more than three years to make other arrangements for his business and to cease to make improvements to the premises to minimize his financial losses. WHEREFORE, Plaintiffs respectfully request that Your Honorable Court dismiss Defendant's Motion for Stay Pending Appeal. Respectfully submitted, CHARLES E. PETRIE 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 Attorney for Plaintiffs CHARLES E. PETRIE, ESQUIRE ID# 29029 3528 Brisban Street Harrisburg, Pennsylvania 17111 (717) 561-1939 Attorney for Plaintiffs RUTH BENDER and ALICE BEERS, Plaintiffs Vs. DONALD WOOD, SR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NUMBER: 04-2496 CIVIL CERTIFICATE OF SERVICE I certify that on November 29, 2007, I served a copy of the foregoing Answer to Defendant's Motion for Post-Trial Relief upon counsel for the Defendant, Ronald T. Tomasko, Esquire, at his law offices at 3401 North Front Street, P.O. Box 5950, Harrisburg, PA 17110-0950, by personal service. Respectfully submitted, CHARLES E. PETRIE 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 Sup Ct. ID No. 29029 ? ? r? ?`, ?„? _ LV. ? ? ._?_... r _, _? ` ? ? ,?: V iJ?rs =;? i ? _ . ? . , , Ronald T. Tomasko, Esquire Sup. Ct. I.D. No. 61190 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rttomasko@mette.com RUTH BENDER and IN THE COURT OF COMMON PLEAS ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL DIVISION DONALD WOOD, SR., NO. 04-2496-CIVIL Defendant STATEMENT OF MATTERS COMPLAINED OF ON APPEAL Defendant Donald Wood, Sr., by his attorneys, Mette, Evans & Woodside, files the following concise statement of matters complained of on the appeal in the above matter, pursuant to the direction issued to Defendant by the Honorable Judge J. Wesley Oler, Jr. pursuant to Pa. R.A.P. 1925(b): 1. Whether the Court's determination to grant Plaintiff's Complaint for Ejectment and deny Defendant's Counterclaim for unjust enrichment was supported by the evidence and the applicable law due to a failure to apply the equitable principles of unjust enrichment and by ejecting the Defendant without compensating Defendant for the value of the improvements paid for and installed by Defendant to the real property at issue in the Plaintiff's Complaint. 2. Whether the Court's determination to grant Plaintiff's Complaint for Ejectment and deny Defendant's Counterclaim for unjust enrichment was supported by the evidence and the applicable law due to a failure to apply the equitable principles of unjust enrichment and by ejecting Defendant without compensating Defendant for the value of the money given by the Defendant to the Plaintiffs for use of the property from 2003 to mid-2007. 3. Whether the Court, in the course of the hearings below, committed prejudicial error by ignoring certain evidence offered by Defendant, including but not limited to the Defendant's uncontroverted testimony that Defendant paid for the materials and installation of all of the existing improvements on the real property that is the subject matter of Plaintiff's Complaint. 4. Whether the Court's two orders, dated August 6, 2007 and October 12, 2007 respectively, represent legal error and/or an abuse of discretion by failing to articulate, in any manner whatsoever, why the Defendant's claims were denied/dismissed. Respectfully subi d, METTE, EVAN;&, QDGIDE By: Rbnald T. Tomasko,Esquire Attorney I.D. No. 61190 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rttomasko@mette.com Attorney for Defendant Date: November 29, 2007 483409v1 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Charles E. Petrie, Esquire 3528 Brisban Street Harrisburg, PA 17111 (717) 561-1939 Attorney for Plaintiffs Respectfully METTE, EVAN,Sr QWOODSIDE By: November 29, 2007 Ronald T. Tomaskd, Esquire Attorney I.D. No. 61190 3401 North Front Street P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rttomasko@mette.com Attorney for Defendant e--? s 7 C -?-? f, "? ' . .t ? i ? 1 r t^"? ,: } -?- - RUTH BENDER and IN THE COURT OF COMMON PLEAS OF ALICE BEERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW DONALD WOOD, SR., Defendant NO. 04-2496 CIVIL TERM ORDER OF COURT AND NOW, this 10`h day of December, 2007, upon consideration of Defendant's Motion for Stay Pending Appeal, and of Plaintiffs' Answer to Defendant's Motion for Stay Pending Appeal, the motion is denied. Xharles E. Petrie, Esq. 3528 Brisban Street Harrisburg, PA 17111 Attorney for Plaintiff ?1`onald T. Tomasko, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant J :rc BY THE COURT, I V :0114 V 1 1 31 -] 0 1.0076 '1± i t ! I By virtue of this writ, on the 12 day of D e c e n b e r 2 0 0 7. I caused, the named Ruth Bender & Alice B e ptu Have possession of the premises described w W>*MK XX h 8 Front t, Enola,. PA 17025 Sworn and subscribed to before me this Day of , Sheriff's Return: Docketing 18.00 Poundage 2.02 Prothy 2.00 Milage 30.72 Possession 30.00 Surcharge 20.00 So Answers Sheriff By ]L raj Advance Costs: 150.00 Sheriff's Costs: 102.74 47.26 Refunded to Atty on 12/13/07 1-02.74 ? /rl /.3 r/a 7 9,., 0 CN r-, ,,% Y ? loft No Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Ruth Bender and Alice Beers VS. Donald Wood Sr WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 159.35 Plff (s) $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: Chrles e. Petrie, kEsq. 3528 Brisban Street Harrisburg, Pa. 17111 Attorney for Plaintiff (s) By virtue of this writ, on the named appurtenances, and Sworn and subscribed to before me this Day of , Prothonotary Where papers may be served day of . I caused the within _, to have possession of the premises described with the So Answers, Sheriff By Deputy * W2 2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Ruth Bender 698 Front Street, Enola, Pa. 17025 and Alice Beers 199 Fairmont Avenue, W. Fairview, Pa. 17025 VS. No. 04-2496 Civil Term_ Donald Wood, Sr. 700 High Street West Fairview, Pa. 17025 Costs Attorney's $ 159.35 Plaintiff's $ Prothonotary $ 2.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) Ruth Bender 698 Front Street, Enola, Pa. 17025 and Alice Beers 199 Fairmont Avenue, W. Fairview, Pa. 17025 being: (Premises as follows): See Attachment (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. JS J? Curtis R. Long, Prothonotary, /^^ Common Pleas Court of Cumberland County, PA Date October 29, 2007 (Seal) RUTH BENDER and ALICE BEERS, Plaintiffs V. DONALD WOOD, SR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW No. 04-2496 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., January 3, 2008. In this civil action, two devisees of land from their father filed a complaint in ejectment against a sibling who refused to vacate the property.' The sibling filed a counterclaim for unjust enrichment.2 Following a bench trial, the court entered a verdict in favor of Plaintiffs and against Defendant in Plaintiffs' ejectment action, and against Defendant and in favor of Plaintiffs on Defendant's claim for unjust enrichment.3 Defendant's motion for post-trial relief was subsequently denied,4 and judgment was entered on the verdict.5 From the denial of the motion for post-trial relief, Defendant has filed an appeal to the Pennsylvania Superior Court.6 The issues raised on appeal have been expressed in a statement of matters complained of on appeal as follows: 1 Plaintiffs' Complaint for Ejectment, filed June 2, 2004. 2 Defendant's Answer with New Matter and Counterclaim, filed August 3, 2004. 3 Verdict, August 7, 2007. 4 Order of Court, October 12, 2007. 5 Writ of Possession, October 29, 2007. 6 Defendant's Notice of Appeal, filed November 13, 2007; A denial of a motion for post-trial relief is not an appealable order. Fletcher-Harlee Corp. v. Szymanski, 2007 WL 2984153 *2 n.5 (Pa. Super. 2007). However, judgment was entered on the verdict prior to the filing of the notice of appeal. "While Appellant purported in its notice of appeal that it was appealing from the trial Court's order denying its motion for post-trial relief, such orders are not appealable until they are reduced to judgment. However, because judgment subsequently was entered, this appeal is properly before [the appellate] Court." Id. VINVAIAS)NNOd 1 Z :$ wv ? - Nvr oooz d l ?at.;r,','.? d M JO 1. Whether the Court's determination to grant Plaintiff's Complaint for Ejectment and deny Defendant's Counterclaim for unjust enrichment was supported by the evidence and the applicable law due to a failure to apply the equitable principles of unjust enrichment and by ejecting the Defendant without compensating Defendant for the value of the improvements paid for and installed by Defendant to the real property at issue in the Plaintiff's Complaint. 2. Whether the Court's determination to grant Plaintiff's Complaint for Ejectment and deny Defendant's Counterclaim for unjust enrichment was supported by the evidence and the applicable law due to a failure to apply the equitable principles of unjust enrichment and by ejecting Defendant without compensating Defendant for the value of the money given by the Defendant to the Plaintiffs for use of the property from 2003 to mid-2007. 3. Whether the Court, in the course of the hearings below, committed prejudicial error by ignoring certain evidence offered by Defendant, including but not limited to the Defendant's uncontroverted testimony that Defendant paid for the materials and installation of all of the existing improvements on the real property that is the subject matter of Plaintiff's Complaint. 4. Whether the Court's two orders, dated August 6, 2007, and October 12, 2007 respectively, represent legal error and/or an abuse of discretion by failing to articulate, in any manner whatsoever, why the Defendant's claims were denied/dismissed.' This opinion in support of the judgment is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On a challenge to the sufficiency of the evidence, "we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences." Hoy v. Angelone, 456 Pa. Super. 596, 604, 691 A.2d 476, 480 (1997). "[T]he trial court acts as the factfinder in a bench trial and may believe all, part or none of the evidence presented." Ruthrauff, Inc. v. Ravin, Inc., 2006 PA Super 352, ¶31, 914 A.2d 880, 888. Viewed in this light, the evidence at trial may be summarized as follows. Plaintiffs are Ruth Bender, an adult individual residing at 698 Front Street, Enola, Pennsylvania ,8 and Alice Beers, an adult individual residing at 199 Fairmont ' Defendant's Statement of Matters Complained of on Appeal, filed November 29, 2007. a N.T. 16, Trial, August 6, 2007 (hereinafter N.T. -). 2 Avenue, Enola, Pennsylvania.9 Defendant is Donald Wood, Sr., an adult individual residing at 700 High Street, Enola, Pennsylvania.10 The parties are children of Adelbert Haylon Wood,11 who died on June 29, 1993,12 possessed of certain land in East Pennsboro Township, Cumberland County, Pennsylvania. 13 Under decedent's will, the land was devised to Plaintiffs. 14 It was the subject of a decree awarding real estate to Plaintiffs dated October 14, 1994.15 The land had been acquired by decedent several decades before his death, 16 and was used as a salvage yard by decedent and Defendant, his son. 17 At the time of decedent's death, materials for a "pole building" on the property had been purchased with proceeds of the business,'8 and the building had been partially erected.19 Without Plaintiffs' knowledge or consent, Defendant proceeded to complete construction of the building; 20 he also thereafter blacktopped a driveway on the property without their consent. 21 In spite of Plaintiffs demands that he leave, Defendant continued to operate the business on Plaintiffs' property.22 Defendant's conduct was described by one Plaintiff as follows: 9 N.T. 4. 10 N.T. 18-19. " N.T. 5, 8, 10, 17, 20; Plaintiffs' Ex. 1, trial, August 6, 2007 (hereinafter Plaintiffs'/Defendant's Ex. _). 12 N.T. 5. 13 Plaintiffs' Ex. 1. 14 N.T. 11; Plaintiffs' Ex. 1. 15 Plaintiffs' Ex. 1. 16 Plaintiffs' Ex. 1. 17 N.T. 19. 18 N.T. 12, 31-32. 19 N.T. 20-21. 2° N.T. 7-9, 12, 33. 2' N.T. 22. 22 N.T. 9. 3 Q And over the years what efforts have you made to have your brother stop operating his business? A We have argued with him. We have fussed with him to have his stuff taken off, not to let those other people on there. In fact, if we went up there, a lot of times we went up, and he would get angry with us because we said, this is our property, and we don't want these people up here. People would meet me in the woods and say, this is private property, you have to leave. Q Now by people, what do you mean? A Well, people that are working for him. Q And what are they doing? A Junking. Q Okay. A Crushing cars, hauling things out, stuff like that. And people would come to us. We would stop them from going up there with truck loads of stuff, and they would say the owner said we could do this.23 Defendant refused to allow access to the building,24 maintained dogs on the premises "that neither [Plaintiff] c[ould] go near, ,25 refused to sign a lease, 26 and told them that he was "going to just keep right on doing what I'm doing."27 For over ten years he utilized the property for his business without paying Plaintiffs anything.28 In June of 2004, Plaintiffs filed the instant action in ejectment.29 In December of 2004, Defendant began sending monthly checks to Plaintiffs in the amount of $250.00 or $275.00,30 with a view to covering taxes on " N.T. 9-10. 24 N.T. 12. Zs N.T. 12. 26 N.T. 9. 27 N.T. 9. "N.T. 30. 29 Plaintiffs' Complaint for Ejectment, filed June 2, 2004. 30 N.T. 29-30. 4 the property he was using. 31 Ultimately, Plaintiffs refused to accept further checks, 32 but Defendant still failed to vacate the premises. 33 At the trial, Defendant testified that the pole building which he completed construction of in the 1990s34 was worth about $40,000.00,35 but that he could not estimate the cost of putting the building up. 36 He stated that he had spent between $6,000.00 and $8,000.00 on macadam for the driveway which he paved,37 and had paid for an electrical connection for the building. 38 He had been, according to his testimony, surprised that his father had not devised the property to him.39 He testified that his efforts to buy the property from Plaintiffs had proven unsuccessful.40 Defendant's position, which was an understandably defensive one given the circumstances, was expressed in his testimony as follows: Q All right. So what are you asking the Court to do? A I'm only asking for more time. I would like to purchase the property, if I could, just the building, to use when I move out, to keep my toys in, my boat and my motor home, over the winter months. Q And how much time are you asking for? A As much as I can get. I have a new building in Pittsburgh that is 60 by 140 that will house my new business. It's going to take some time to put it up. Q Well, how much time? Give me a guess. 31 N.T. 29. 32 In July of 2007, Plaintiffs notified Defendant that they would no longer accept these checks. From December, 2004, to July, 2006, according to Defendant, he paid a total of $8,200.00. N.T. 24-25. 33 See Defendant's Motion for Stay Pending Appeal, filed November 13, 2007. 34 N.T. 21. 3s N.T. 23. 36 N.T. 32. 37 N.T. 23. 38 N.T. 22. 39 N.T. 33. ao N.T. 26. 5 A It would be nice if I had a year, but I don't look for that to happen ai Q [A]s far as the rental payment, for lack of a better phrase, are you ready, willing, and able to continue to make those payments to your sisters? A Absolutely. Q Would you even agree to a higher amount per month? A Yes, I would. Q So possibly purchasing the parcel is one option, continuing the current arrangement, I'll put that in quotes, is another option. You're saying you're also looking to relocate the business, but that hasn't happened yet? A Right. That's correct.42 At the conclusion of the trial, following arguments by counsel, the court took the matter under advisement.43 Subsequently, the following verdict was entered: AND NOW, this 7th day of August, 2007, upon consideration of Plaintiffs' Complaint for Ejectment, and of Defendant's Counterclaim for unjust enrichment, and following a nonjury trial held on August 6, 2007, it is ordered and directed as follows: 1. On Plaintiffs' Complaint for Ejectment, the Court finds in favor of Plaintiffs and against Defendant, and Defendant is directed to vacate the property described in Plaintiffs' Exhibit 1 (attached hereto), and to remove all personalty in his possession therefrom, within 60 days of the date of this order; and 2. On Defendant's Counterclaim for unjust enrichment, the Court finds in favor of Plaintiffs and against Defendant.aa Defendant filed a motion for post-trial relief on August 20, 2007.45 This motion asserted the following: 1. A bench trial was held on this matter on August 6, 2007. ai N.T. 33. "N.T. 34. as N.T. 38-39. as Verdict, August 7, 2007. as Defendant's Motion for Post-Trial Relief, filed August 20, 2007. 6 2. On August 13, 2007, Defendant's counsel was served with a copy of the Court's August 7, 2007 verdict finding in favor of the Plaintiffs. 3. The Court's verdict made no mention of the substantial improvements that the Defendant made to the parcel in question, including the building (and purchase) of a pole building, a macadam driveway and an extension of the electric service. 4. The Court's verdict makes no mention of the Eight Thousand Doller ($8,000.00) plus in cash payments that the Defendant made to the Plaintiffs. 5. The above issues were preserved by counsel for the Defendant at the pre-trial conference with the Court, and during the parties' closing arguments at the time of trial.ab Relief requested by Defendant in the motion for post-trial relief was "that the Court affirm, modify or change its order to reflect that the Defendant should be compensated for the improvements to the parcel and/or cash payments made to the Plaintiffs ."47 This motion was denied by the court, following argument, on October 12, 2007.48 From the denial of the motion for post-trial relief, Defendant filed a notice of appeal to the Pennsylvania Superior Court on November 13, 2007.49 Somewhat inexplicably in view of the limited nature of Defendant's motion for post-trial relief, Defendant simultaneously filed a motion for a stay pending appeal to permit Defendant to continue to occupy the property.50 This motion was denied.51 DISCUSSION On an appeal in a civil case, appellant's issues are limited to those raised in his or her post-trial motion. See Hysong v. Lewicki, 931 A.2d 63, 65 (Pa. Commw. Ct. 2007). In the present case, Defendant's motion for post-trial relief did not challenge the aspect of the court's verdict ejecting him from Plaintiff's premises; 46 Defendant's Motion for Post-Trial Relief, paras. 1-5. 47 Defendant's Motion for Post-Trial Relief, ad damnum clause. 48 Order of Court, October 12, 2007. 49 Defendant's Notice of Appeal, filed November 13, 2007. Judgment had been entered on the verdict on October 29, 2007. so Defendant's Motion for Stay Pending Appeal, filed November 13, 2007. 51 Order of Court, December 10, 2007. 7 the motion, instead, sought judgment notwithstanding the verdict on Defendant's counterclaim for unjust enrichment. To the extent that Defendant's statement of matters complained of on appeal purports to pursue the issue of the propriety of ejectment on appeal it is subject to the doctrine of waiver. "To sustain a claim of unjust enrichment, it must be shown ... that a person wrongly secured or passively received a benefit that it would be unconscionable to retain." Martin v. Little, Brown and Co., 304 Pa. Super. 424, 431, 450 A.2d 984, 988 (1981) (emphasis added). In this context, "[a]s a general rule, volunteers have no right to restitution." Id. In the present case, where (a) Defendant made improvements to land at a time when he was a volunteer and, in essence, a trespasser, without the knowledge or consent of the legal owners of the property, (b) the improvements were for his own benefit and not that of the owners, (c) Defendant utilized the property to his own economic advantage for many years in disregard of the owners' legal rights, and (d) following the initiation of litigation paid the owners money to cover taxes on the property which he continued to occupy and profit from, the equities requisite to an unjust enrichment claim on his behalf were not present. Finally, under Pennsylvania Rule of Civil Procedure 1038(a), a bench trial is to be conducted "as nearly as may be as a trial by jury." Under Rule 1038(b), "[t]he decision of the trial judge may consist only of general findings as to all parties but shall dispose of all claims for relief. The trial judge may include as part of the decision specific findings of fact and conclusions of law with appropriate discussion."52 In the present case, the court was no more obligated to make special findings of fact in rendering its verdict than a jury would have been. BY THE COURT, Z " Pa. R.C.P. 1038(b) (emphasis added). 8 Charles E. Petrie, Esq. 3528 Brisban Street Harrisburg, PA 17111 Attorney for Plaintiffs Ronald T. Tomasko, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant Cpa t'E.s 9 IIN168 RECORDS UNDER CERTIFICATE AND TRANSMITTAL PROCEDURE 1931 RNNSYLVANIA RULE OF APPELLATE 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: Ruth Bender and Alice Beers VS. Donald Wood, Sr. 2004-2496 Civil 1907 MDA 2007 The documents comprising the record have been numbered from No.1 to 101, 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 01/07/2008 . Cu s R. Long, P ono Regina Leb An additional copy of this certificate is enclosed Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Ctnnberland in the Commonwealth of Pennsylvania to No. 2004-2496 Civil Term, 19 is contained the following: COPY OF A- DOCKET ENTRY Ruth Bender and Alice Beers vs. Donald Wood Sr. **SEE CERTIFIED COPY OF THE DOCKET ENTRIES ** Commonwealth of Pennsylvania County of Cumberland In TESTIMONY WHEREOF, I have hereunto this 7th I Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Ruth Bender and Alice Beers Plaintiff, and Donald Wood Sr Defendant , as the same remains of record before the said Court at No. Q4-2496 -- of r;vi 1 Term, A.D. 19 . set my hand and affixed the seal of said Court day of.,u -A. D•. X2008 Prothonotary I, Edgar R- B9y1Q,Y President Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that G?tri , R nng , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of nunberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicat s else here, and that the said record, certificate and .'attestation are-in due form of law and made ywthe prop t Paesideut Idge Commonwealth of Pennsylvania ss: County of Cumberland 1 =is R Ling , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable FAgar B 1?ay1ey by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and'qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courtso jtid'icature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this ? A t A. D. I of Prothonotary ss: ON 8 F= U O? N 0 N Q; U ? 8 dS ? ? O W H W N > rA 0, L% W e W ? z O A o o o f?. L1 ... U C W t, a 0 s 0 a 4 PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2004-02496 BENDER RUTH ET AL (vs) WOOD DONALD SR Reference No..: Filed......... 6/02/2004 Case Tie .....: COMPLAINT - EJECTMENT Time.........: 3:20 Judgme... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1907 MDA2007 Higher Crt 2.: ******************************************************************************** General Index Attorney Info BENDER RUTH PLAINTIFF PETRIE CHARLES E 698 FRONT STREET ENOLA PA 17025 BEERS ALICE PLAINTIFF PETRIE CHARLES E .199 FAIRMONT AVENUE WEST FAIRVIEW PA 17025 WOOD DONALD SR DEFENDANT 700 HIGH STREET WEST FAIRVIEW PA 17025 ******************************************************************************** Judgment Index Amount Date Desc WOOD DONALD SR 10292007 ON VE WOOD DONALD SR 10Y29/2007 RIITMOFTPOSSESSSIIONT ******************************************************************************** * Date Entries ******************************************************************************** 6/02/2004 COMPLAINT - EJECTMENT FIRST ENTRY - - - - - - - - - - - - - - --------------------=---------------------------------------------- 6/28/2004 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT - EJECTMENT Ret Type.: Regular Litigant.: WOOD DONALD SR Add ess..: 700 HIGH STREET CW St/Zp WEST FAIRVIEW, PA 17025 Hn To: B Shf/D ty.: S,PWN AARRISON Date /Time: 06/24[2004 1824:00 Costs....: $38.35 Pd By: CHARLES PETRIE 06/28/2004 ------------------------------------------------------------------- L? 7/23/2004 IMPORTANT NOTICE FILED (DEFAULT JUDGMENT) ------------------------------------------------------------------- /--/ 8/03/2004 ANSWER WITH NEW MATTER AND COUNTERCLAIM - BY MICHAEL A KORANDA ESQ ---------- ------------------ --------------------------------------- 8/12/2004 REPLY TO NEW MATTER AND COUNTERCLAIM BY CHARLES E PETRIE ESQ ------------------------------------------------------------------- 4f 4/05/2007 PRAECIPE FOR LISTING CASE FOR TRIAL - BY CHARLES E PETRIE ATTY FOR PLFFS ------------------------------------------------------------------- 4/12/2007 ORDER OF COURT - 04-10-07 - IN RE: NONJURY TRIAL - SCHEDULED 08-06-07 AT 9:30 AM IN CR 1 CUMB CO COURTHOUSE - BY J WESLEY OLER JR J - COPIES MAILED 04-12-07 --------------------------"----------------------------------------- -28/07/2007 ORDER OF COURT - DATED 08-06-07 - IN RE: PLFFS COMPLAINT FOR EJECTMENT AND DEFTS COUNTERCLAIM FOR UNJUST ENRICHMENT - FOLLOWING A NONJURY TRIAL THE RECORD IS DECLARED CLOSES AND THE MATTER IS TAKEN UNDER ADVISEMENT - BY J WESLEY OLER JR J - COPIES MAILED 08-08-07 ------------------------------------------------------------------- 8/07/2007 VERDICT COUNTERCLAIIM O COMPLAINT AND FOR UNJUST ENRICHMENT- FOLLOWING A NONJURY DEFTTS TRIAL HELD ON 08-06-07 - 1- ON PLFFS COMPLAINT FOR EJECTMENT THE COURT FINDS IN FAVOR OF PLFFS AND AGAINST DEFT AND DEFT IS DIRECTED TO VACATE THE PROPERTY DESCRIBED IN PLFFS EXHIBIT 1 (ATTACHED HERETO) AND TO REMOVE ALL PERSONALITY IN HIS POSSESSION THEREFROM WITHIN 60 DAYS OF THE DATE OF THIS ORDER AND 2- ON DEFTS COUNTERCLAIM FOR UNJUST ENRICHMENT THE COURT FINDS IN FAVOR OF PLFFS AND AGAINST DEFT - BY J WESLEY JR J - COPIES MAILED PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2004-02496 BENDER RUTH ET AL (vs) WOOD DONALD SR Reference No..: Filed........: 6/02/2004 Case Type ..... : COMPLAINT - EJECTMENT Time.........: 3:20 Judgment ...... • 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1907 MDA2007 Higher Crt 2.: 08-08-07 ------------------------------------------------------------------- 8/20/2007 DEFENDANT'S MOTION FOR POST-TRIAL RELIEF - BY RONALD T TOMASKO ATTY FOR DEFT ------------------------------------------------------------------- 8/22/2007 PETRIE TOO DEFENDANTS MOTION FOR POST-TRIAL RELIEF - BY CHARLES E ------------------------------------------------------------------- 8/27/2007 ORDER OF COURT - DATED 08-27-07 - IN RE: DEFTS MOTION FOR POST-TRIAL RELIEF AND PLFFS ANSWER TO DEFTS MOTION FOR POST-TRIAL RELIEF - ORAL ARGUMENT IS SCHEDULED FOR 10-11-07 AT 1.30 PM IN COURTROOM NO 1 CUMBERLAND COUNTY COURTHPUSE CARLISLE ?A - BRIEFS ARE DUS 5 DAYS-PRIOR TO THAT DATE - BY J WESLEY OLER JR J - COPIES MAILED 08-27-07 ------------------------------------------------------------------- -37 8/27/2007 CERTIFICATE OF SERVICE - ORDER DATED 08-27-07 - BY RONALD T TOMASKO ATTY FOR DEFT ------------------------------------------------------------------- 3< 10/12/2007 ORDER OF COURT - DATED 10/12/07 - UPON CONSIDERATION OF DEFENDANT'S MOTION FOR POST-TRIAL RELIEF AND FOLLOWING ORAL ARGUMENT HELD ON 10/11/07 DEFENDANT'S MOTIN FOR POST-TR?AL RELIEF IS DENIED - BY J WESLEY OLER JR J - COPIES MAILED 10/12/07 ------------------------------------------------------------------- 39-'IS 10/29/2007 PRAECIPE - KINDLY ENTER JUDGMENT UPON THE VERDICT ISSUED BY THE HONORABLE J WESLEY OLER ON AUGUST 7, 2007 BY CHARLES E PETRIE ESQ 10/29/2007 NOTICE MAILED TO DEFENDANT ------------------------------------------------------------------- a/ 10/29/2007 PRAECIPE FOR WRIT OF POSSESSION AND WRIT OF POSSESSION ISSUED R2 .00 COUNTY CHARLES E PETRIE ESQ ---------------------------------------------------- 11/13/2007 MOTION FOR STAY PENDING APPEAL - BY RONALD T TOMASKO ESQ FOR DEFT ------------------------------------------------------------------- 11/13/2007 RNOTICE ONALD OFTOMAEAL ESQSUPERIOR COURT FROM ORDER OF 10/12/07 - BY T SKO FOR DEFT ------------------------------------------------------------------- 7 -7 11/19/2007 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1907 MDA 2007 ------------------------------------------------------------------- 76 11/19/2007 ORDER OF COURT - DATED 11-16-07 - IN RE: NOTICE OF APPEAL FILED - APPELLANT IS DIRECTED PURSUANT TO PA RAP 1925(B) TO FILE OF RECORD IN THIS COURT AND TO SERVE UPON THE UNDERSIGNED JUDGE A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL NO LATER THAN 14 DAYS AFTER ENTRY OF THIS ORDER - BY J WESLEY OLER JR J - COPIES MAILED .11-19-07 --------------- 7---------------------------- ----------------------- 77`_7? 11/28/2007 AMENDMENT TO DEFORDEFT MOTION FOR STAY PENDING APPEAL - BY RONALD ------ ------ ------ --------- -------- ------- ------------- - gt-,511 11/29/2007 PETRIE -AO-TTYE -FORMPLFON FOR STAY PENDING APPEAL - BY CHARLES-E - - - - - - - ------------------------------------------------------------------- qS_-g 7 11/29/2007 STTTEMENTDOFTMATTERS COMPLAINED OF ON APPEAL - BY RONALD T TOMASKO A FOR ------ --------------------------------------------------------- ?- / 12/11/2007 -O ORDER-OF-COURT---12/10/07-IN-RE:-DEFT-MOTION-FOR-STAY -FF -ANSWER/TO MOTIIO7 - MOTION IS DENIED A- BY WESLEY APPEAL OLER JR J - COPIES MAILED 12 11//07 ----------------- 12/31/2007 SHERIFF'S RETURN- WRIT OF POSSESSION 12/12/07 I CAUSED RUTH ------- BENDER & ALICE BEERS TO HAVE POSSESSION OF 698 FRONT STREET, ENOLA PA 17025 SO ANSWERS R THOMAS KLINE SHERIFF SHERIFF PAID $ 2.00 COUNTY SHERIFF'S COSTS $102.74 PD ATTY ------------------------------------------------------------------- 1/04/2008 OPINION PURSUANT 0 PA R A P 1925 - BY J WESLEY OLER JR J - COPIES MAILED 1/4/T08 ------------------------------------------------------------------- 1/07/2008 NOTICE OF DOCKET ENTRIES MAILED TO CHARLES E PETRIE ESQ AND RONALD PYS511 Cumberland County Prothonotary's Office Page 3 Civil Case Print 2004-02496 BENDER RUTH ET AL (vs) WOOD DONALD SR Reference No... Filed......... 6/02/2004 Case Type.....: COMPLAINT - EJECTMENT Time...... . 3:20 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1907 MDA2007 Higher Crt 2.: T TOMASKO ESQ - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Bal Beq Pmts/Ad? End Bal ****************** * ************** ******* * ****** **** *************************** COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 JDMT 14.00 14.00 .00 WRIT OF POSSESS 24.00 24.00 .00 APPEAL HIGH CT 48.00 48.00 .00 2007 SHERF FEE 2.00 2.00 .00 --------------- 168.50 --------- --- 168.50 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof, V here unto set my hand and the seal of said Court at Carlisle, Pa. This ...... 7. x`.. day of.. ??r t......... ..............?.?(it.?1?.... ?.s2.?,r:.....??1....._ V Prothonotary- CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) AMENDED 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: Ruth Bender and Alice Beers VS. Donald Wood, Sr. 2004-2496 Civil 1907 MDA 2007 The documents comprising the record have been numbered from No.102 to 141, 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 01/15/2007. Curti . Long, P notary Regina Lebo An additional cony of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Cumberland in the Commonwealth of Pennsylvania 1907 MDA 2007 to No. 2004-2496 Civil Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Ruth Bender and Alice Beers VS. Donald Wood, Sr. **Amended - SEE CERTIFIED COPY OF THE DOCKET ENTRIES** Commonwealth of Pennsylvania ss: County of Cumberland In TESTIMONY WHEREOF, I have hereunto this 15th 1, Curtis R. Long-, Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Ruth BPndPr And Al i r•P RaarR Plaintiff, and Donald wocxd, Sr. Defendant , as the same remains of record before the said Court at No. 0 4 - 2 4 9 6 of Civil Term, A. D. 19 . set my hand and affixed the seal of said Court day of , tary4_A. D.,X1200 Prothonotary 1, Edgar B Bay ]? ey President Judge of the Ni n+h Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicatur se ere, and that the said record, certificate and attestation are in due form of law and made the propermf tcer v Pre ident . ge Commonwealth of Pennsylvania County of Cumberland ss: 1, Curtis R Long Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable F-rl Qa r B RaV l Pjr by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 15t.N of Januar p. X2008 Prothonotary a S O O as K (9 a a "'r1 a G n y y v ? ? CD a O n G m N a a n O C M X 3 b v r? 0 z O 0 0 a N a O O a cn c H z z ? o 0 r. rt. N 0 fD ? N a ? rn ? n rn O W a c fD ?D ?D (D N Y10 511 I-Ulnuez--Lcillu I-UUIILy YLUy11U11Ul.dLy' ?3 VLLIUC YdyC Civil Case Print 2004-02496 BENDER RUTH ET AL (vs) WOOD DONALD SR Reference No..: Filed........: 6/02/2004 Case Type ..... : COMPLAINT - EJECTMENT Time.........: 3:20 Judgment..... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1907 MDA2007 Higher Crt 2.: ******************************************************************************** General Index Attorney Info BENDER RUTH PLAINTIFF PETRIE CHARLES E 698 FRONT STREET ENOLA PA 17025 BEERS ALICE PLAINTIFF PETRIE CHARLES E 199 FAIRMONT AVENUE WEST FAIRVIEW PA 17025 WOOD DONALD SR DEFENDANT 700 HIGH STREET WEST FAIRVIEW PA 17025 ******************************************************************************** Judgment Index Amount Date Desc WOOD DONALD SR 10292007 ON VE WOOD DONALD SR 10/29/2007 WRDITMOFTPOSSESSSIIONT ******************************************************************************** * Date Entries - - --- - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 6/02/2004 COMPLAINT - EJECTMENT ------------------------------------------------------------------- r?`' 6/28/2004 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT - EJECTMENT Ret Type.: Regular Litigant.: WOOD DONALD SR Address..: 700 HIGH STREET Ctyy/St/Z • WEST FAIRVIEW, PA 17025 Hnd To: BARB WOOD WIFE Shf/D ty.: SH?WN IhARRISON Date/ Time: 06 24/2004 1824:00 Costs....: $38.35 Pd By: CHARLES PETRIE 06/28/2004 ------------------------------------------------------------------- 7/23/2004 IMPORTANT NOTICE FILED (DEFAULT JUDGMENT) ------------------------------------------------------------------- /O-0 8/03/2004 ANSWER WITH NEW MATTER AND COUNTERCLAIM - BY MICHAEL A KORANDA ESQ --------------------------------------------- 8/12/2004 REPLY TO NEW MATTER AND COUNTERCLAIM BY CHARLES E PETRIE ESQ ------------------------------------------------------------------- 4/05/2007 PRAECIPE FOR LISTING CASE FOR TRIAL - BY CHARLES E PETRIE ATTY FOR PLFFS ------------------------------------------------------------------- 4/12/2007 ORDER OF COURT - 04-10-07 - IN RE: NONJURY TRIAL - SCHEDULED 08-06-07 AT 9:30 AM IN CR 1 CUMB CO COURTHOUSE - BY J WESLEY OLER JR J - COPIES MAILED 04-12-07 ------------------------------------------------------------------- c_3 8/07/2007 ORDER OF COURT - DATED 08-06-07 - IN RE: PLFFS COMPLAINT FOR EJECTMENT AND DEFTS COUNTERCLAIM FOR UNJUST ENRICHMENT - FOLLOWING A NONJURY TRIAL THE RECORD IS DECLARED CLOSES AND THE MATTER IS TAKEN UNDER ADVISEMENT - BY J WESLEY OLER JR J - COPIES MAILED 08-08-07 ------------------------------------------------------------------- 8/07/2007 VERDICT COUNTERCLAIM O COMPLAINT EJECTMENT AND FOR UNJUST ENRICHMENT- FOLLOWING ANONJURY DEFTTS TRIAL HELD ON 08-06-07 1- ON PLFFS COMPLAINT FOR EJECTMENT THE COURT FINDS IN FAVOR OF PLFFS AND AGAINST DEFT AND DEFT IS DIRECTED TO VACATE THE PROPERTY DESCRIBED IN PLFFS EXHIBIT 1 (ATTACHED HERETO) AND TO REMOVE ALL PERSONALITY IN HIS POSSESSION THEREFROM WITHIN 60 DAYS OF THE DATE OF THIS ORDER AND 2- ON DEFTS COUNTERCLAIM FOR UNJUST ENRICHMENT THE COURT FINDS IN FAVOR OF PLFFS AND AGAINST DEFT - BY J WESLEY JR J - COPIES MAILED rivi.itvttv?aty vil.i?.c rayc Civil Case Print 2004-02496 BENDER RUTH ET AL (vs) WOOD DONALD SR Reference No..: Filed......... 6/02/2004 Case Tye...... COMPLAINT - EJECTMENT Time. .... . 3.20 Judgmen .... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 19077 MDA2007 Higher Crt 2.: 08-08-07 ------------------------------------------------------------------- _',? 3 8/20/2007 DEFENDANT'S MOTION FOR POST-TRIAL RELIEF - BY RONALD T TOMASKO ATTY FOR DEFT ------------------------------------------------------------------- ?/ 8/22/2007 ANSWER TOTDEFONDANTS MOTION FOR POST-TRIAL RELIEF - BY CHARLES E ------------------------------------------------------------------- 8/27/2007 ORDER OF COURT - DATED 08-27-07 _ IN RE: DEFTS MOTION FOR POST-TRIAL RELIEF AND PLFFS ANSWER TO DEFTS MOTION FOR POST-TRIAL RELIEF - ORAL ARGUMENT IS SCHEDULED FOR 10-11-07 AT 1.30 PM IN COURTROOM NO 1 CUMBERLAND COUNTY COURTHPUSE CARLISLE ?A - BRIEFS ARE DUS 5 DAYS PRIOR TO THAT DATE - BY J WESLEY OLER JR J - COPIES MAILED 08-27-07 ------------------------------------------------------------------- 3'7 8/27/2007 CERTIFICATE OF SERVICE - ORDER DATED 08-27-07 - BY RONALD T TOMASKO ATTY FOR DEFT ------------------------------------------------------------------- 3 1? 10/12/2007 ORDER OF COURT - DATED 10/12/07 - UPON CONSIDERATION OF DEFENDANT'S MOTION FOR POST-TRIAL RELIEF AND FOLLOWING ORAL ARGUMENT HELD ON 10/11/07 DEFENDANT'S MOTIN FOR POST-TR AL RELIEF IS DENIED - BY J WESLEY OLER JR J - COPIES MAILED 10/12//07 ------------------------------------------------------------------- 10/29/2007 PRAECIPE - KINDLY ENTER JUDGMENT UPON THE VERDICT ISSUED BY THE HONORABLE J WESLEY OLER ON AUGUST 7, 2007 BY CHARLES E PETRIE ESQ ------------------------------------------------------------------- 10/29/2007 NOTICE MAILED TO DEFENDANT ------------------------------------------------------------------- 10/29/2007 PRAECIPE FOR WRIT OF POSSESSION AND WRIT OF POSSESSION ISSUED 2.00 COUNTY 8Y CHARLES E PETRIE ESQ ------ ------- ------- ------- ------------ ---------- --------------- 11/13/2007 MOTION-FOR-STAY-PENDING APPEAL - BY RONALD T TOMASKO ESQ FOR DEFT ------------------------------------------------------------------- ls°?` APPEAL 11/13/2007 RONOTICE NALD OFTOMASKO ESQSUPERIOR COURT FROM ORDER OF 10/12/07 - BY FOR DEFT ------------------------------------------------------------------- 7a?- 7 11/19/2007 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1907 MDA 2007 ------------------------------------------------------------------- 11/19/2007 ORDER OF COURT - DATED 11-16-07 - IN RE: NOTICE OF APPEAL FILED - APPELLANT IS DIRECTED PURSUANT TO PA RAP 1925(B) TO FILE OF RECORD IN THIS COURT AND TO SERVE UPON THE UNDERSIGNED JUDGE A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL NO LATER THAN 14 DAYS AFTER ENTRY OF THIS ORDER - BY J WESLEY OLER JR J - COPIES MAILED 11-19-07 ------------------------------------------------------------------- ?? 7fj" 11/28/2007 AMENDMENT TO DEFENDANTS MOTION FOR STAY PENDING APPEAL - BY RONALD T TOMASKO ESQ FOR DEFT ------------ --------------------------------------------------- y?r 11/29/2007 ANSWER TO DEFT MOTION FOR STAY PENDING APPEAL - BY CHARLES E PETRIE ATTY FOR PLFF ------------------------------------ s7 11/29/2007 STATEMENT OF MATTERS COMPLAINED OF ON APPEAL - BY RONALD T TOMASKO ATTY FOR DEFT ----- --------- ----------- ------------ ------- --------- -------------- 12/11/2007 ORDER OF COURT - 12/10/07 IN RE: DEFT MOTION FOR STAY PENDING APPEAL AND PLFF ANSWER TO MOTIO - MOTION IS DENIED - BY J WESLEY OLER JR J - COPIES MAILED 12/1107 HERIFF'S RETURN - WRIT OF POSSESSION 12/12/07 I CAUSED RUTH --------- ------ - ---- -- ---------- -------- - ------ ---- 12/31/2007 S PAN170025 ALICE BEERS R HOMASSKLINENSHOF 698 FRONT ERIFF SHERIFFTPAID, $E2? 0 COUNTY SHERIFF'S COSTS $102.74 PD ATTY ------------------------------------------------------------------- _/ 1/04/2008 OPINIONMAIRSUANT TO PA R A P 1925 - BY J WESLEY OLER JR J - COPIES ------------------------------------------------------------------- 1/07/2008 NOTICE OF DOCKET ENTRIES MAILED TO CHARLES E PETRIE ESQ AND RONALD Civil Case Print 2004-02496 BENDER RUTH ET AL (vs) WOOD DONALD SR Reference No..: Filed........: : Time 6/02/2004 3:20 Case Ty e.....: COMPLAINT - EJECTMENT 00 ......... Execution Date 0/00/0000 Jud men......: Judge Assigned: OLER J WESLEY JR : Disposed Desc Jury Trial.... Disposed Date. 0/00/0000 . ------------ Case Comments -- ---------- - Higher Crt 1.: 19077 MDA2007 Higher Crt 2.: T TOMASKO ESQ ----------- --------------- ------------ ---------------------------- led 1/10/2008 TRANSCRIPT OF PROCEEDINGS - --------------- - BY J WESLEY ------------ OLER JR J --------------- ------------ ------------- 1/15/2008 NOTICE OF DOCKET ENTRIES MAILED TO CHARLES E PETRIE AND ROANLD T TOMASKO - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Beg Bal ymts/Ad? P End Bal *************************** ****************************** ** ******* * * ****** *** * COMPLAINT 35.00 35.00 .00 TAX ON CMPLT SETTLEMENT .50 5.00 .50 5.00 .00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 00 JDMT 14.00 14.00 . WRIT OF POSSESS 24.00 24.00 .00 APPEAL HIGH CT 48.00 48.00 .00 2007 SHERF FEE 2.00 ------ 2.00 --------- -- .00 ---------- ----- ---- 168.50 168.50 .00 ******************************************************************************** * End of Case Information l ? Copy ANA ???f??"RD ` Rik,,i a. hand In Testimony whereof, I here unto set may and the seal of said Court at Carlisle, Pa. .:... day .........., This ..... ...... . ?. -4.. """ Prothonotary Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 c --------------------------------------------- 1013-10/99 10/1/99 Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary w Superior Court of Pennsylvania Middle District January 18, 2008 RE: Bender, R. et al v. Wood, D. No. 1907 MDA 2007 Trial Court Docket Number: 2004-02496 Dear: 101) Pine Street. Suite 400 Harrisbure. PA 17101 717-772-1294 wane. superior. court. state. pa. us Enclosed please find a certified copy of an order dated January 18, 2008 entered in the above-captioned matter. Very truly yours, VSL ees D. McCullough; sq. Deputy Prothonotary cc: Charles E. Petrie, Esq. The Honorable J. Wesley Oler, Jr. Judge Mr. Curtis R. Long Prothonotary No.: 1907 MDA 2007 Carbon Copy Recipient List Addressed To: Ronald Thomas Tomasko, Esq. Mette, Evans & Woodside 3401 N Front Street Fl 2 PO Box 5950 Harrisburg, PA 17110-0950 Carbon Copied: Charles E. Petrie, Esq. 3528 Brisban Street Harrisburg, PA 17111 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 The Honorable J. Wesley Oler, Jr. Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 1013 -10/99 10/1/99 Ruth Bender and Alice Beers V. Donald Wood, Sr. ORDER IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 2004-02496) No. 1907 MDA 2007 Filed: January /$ , 2008 Upon consideration of the application of appellant for stay and injunction pending appeal, the application is hereby DENIED. Per Curiam - T-Rte-E-CflFy-MM _RECO Attest: JAN 18 2008 'I ( z4 I - Depu thonotary superior court of PA - Middle District ^ > . _a { _. -?° :-?' ?- c~? .. m ???f ` .? _ -? t: L 401 Superior Court of Pennsylvania Karen Reid Bramblett, Esq. Middle District Prothonotary James D. McCullough, Esq. September 19, 2008 Deputy Prothonotary Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: Bender, R. et al v. Wood, D. No. 1907 MDA 2007 Trial Court/Agency Dkt. Number: 2004-02496 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: Annexed hereto pursuant to Pennsylvania Rules of Appellate is the entire record for the above matter. Contents of Original Record: Original Record Item Part Supplemental part Date of Remand of Record: Filed Date C January 8, 2008 1 January 15, 2008 1 OCT 2 7 W ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by sig returning the enclosed copy of this certificate to our office. Copy recipients (1 not acknowledge receipt. 41-- "*? c &4&, , Ja s D. McCullough, Esq. Deputy Prothonotary Signature Date 100 Pine Street. Suite 400 Harrisburg, PA 17101 717-772-1294 www.superioncourt.state.pa.us 2571 and 2572 , dating, and i below) need Printed Name [? ' _: c-? ? ? `"+ ? ?? ?- ?_ . ? ED . ? ? ,: 'V ?.? ` aJ .? +?+ 1. A24001/08 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT ?.O.P. 65.37 RUTH BENDER AND ALICE BEERS, Appellees VS. . DONALD WOOD, SR., . Appellant . IN THE SUPERIPR COURT OF PENNSYLVANIA No. 1907 MDA 2007 Appeal from the Judgment entered October 29, 2( In the Court of Common Pleas of Cumberland Cou Civil, No. 2004-02496 BEFORE: GANTMAN, SHOGAN, AND KELLY, JJ. MEMORANDUM: FILED: September 19, 2008 Appellant, Donald Wood, Sr., appeals from the judg the Cumberland County Court of Common Pleas, in favor of Bender and Alice Beers, in their ejectment action. We affirm. it entered in llees, Ruth In its opinion, the trial court fully and correctly sets forth Ithe relevant facts and procedural history of this case. Therefore, we have Oo reason to restate them. I Appellant raises the following issues for our review: WHETHER THE TRIAL COURT ERRED, ABUSED S L DISCRETION OR OTHERWISE HAD NO SUBSTANJND EVIDENCE TO SUPPORT EJECTING [APPELLANT] DENYING HIS COUNTERCLAIM FOR UNJUST ENRICHM T SINCE THE EVIDENCE AND THE APPLICABLE W SUPPORT THE APPLICATION OF THE EQUITE J. A24001/08 DOCTRINE OF UNJUST ENRICHMENT FOR THE VALI E OF IMPROVEMENTS PAID FOR AND INSTALLED BY [APPELLANT] TO THE REALTY AT ISSUE? WHETHER THE TRIAL COURT ERRED, ABUSED ITS DISCRETION OR OTHERWISE HAD NO SUBSTANTIAL EVIDENCE TO SUPPORT EJECTING [APPELLANTS AND DENYING HIS COUNTERCLAIM FOR UNJUST ENRICH ENT SINCE THE EVIDENCE AND THE APPLICABLE LAW SUPPORT THE APPLICATION OF THE EQUIT BLE DOCTRINE OF UNJUST ENRICHMENT FOR THE VALU OF THE MONEY GIVEN BY [APPELLANT] TO APPELLEES, FOR USE OF THE PROPERTY FROM 2003 TO MID-20077 (Appellant's Brief at 4). Initially, we observe: Our appellate role in cases arising from non-jury trii verdicts is to determine whether the findings of th trial court are supported by competent evidence an whether the trial court committed error in an application of the law. The findings of fact of th trial judge must be given the same weight and effec on appeal as the verdict of a jury. We consider th evidence in a light most favorable to the verdi( winner. We will reverse the trial court only if ii findings of fact are not supported by competer evidence in the record or if its findings are premise on an error of law. However, as the issue ...concerr a question of law, our scope of review is plenary. The trial court's conclusions of law on appeal origins ing from a non-jury trial are not binding on an appellate court because it is the appellate court's duty to determine if he trial court correctly applied the law to the facts of the ca e. When reviewing the sufficiency of the evidence... this Court must determine whether the evidence and all reasona le inferences therefrom, viewed in the light most favorable to the verdict winner, was sufficient to enable the fact-fin er to find against the losing party. A challenge to he sufficiency of the evidence in a civil case is reviewed on -2- • J. A24001/08 appeal as a claim that the trial court erred in denying a motion for judgment notwithstanding the verdict ("JN V"). A ]NOV can be entered upon two bases: (1) whOr the movant is entitled to judgment as a matter c law; and/or, (2) the evidence was such that no t reasonable minds could disagree that the verd c should have been rendered for the movant. Wh reviewing a trial court's denial of a motion for ]NO we must consider all of the evidence admitted decide if there was sufficient competent evidence sustain the verdict. In so doing, we must also vie this evidence in the light most favorable to t verdict winner, giving the victorious party the bene of every reasonable inference arising from t evidence and rejecting all unfavorable testimony a inference. Concerning any questions of law, o? scope of review is plenary. Concerning questions c credibility and weight accorded the evidence at tria we will not substitute our judgment for that of th finder of fact. If any basis exists upon which th [court] could have properly made its award, then w must affirm the trial court's denial of the motion fc ]NOV. A ]NOV should be entered only in a ciez case. Atlantic LB, Inc. v. Vrbicek, 905 A.2d 552, (internal citations and quotation marks omitted). 557-58 (Pa.Soper. 2006) After a thorough review of the record, the briefs of the `parties, the applicable law, and the well-reasoned opinion of the HonorablO J. Wesley Oler, Jr., we conclude Appellant's issues merit no relief. Thq trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed January 4, 2008, at 7-8) (finding: (1) as preliminary matter, Appellant waived all issues related directly to propriety of ejectment, for failure to preserve them in post-verd# motions; -3- r + J. A24001/08 (2) Appellant made improvements to property as volunteer and trespasser without Appellees' knowledge or consent; these improvements benefited Appellant only, and Appellant's use of property was for his Own economic interests; (3) Appellant's recent, self-settled monthly payments to Appellees for several years barely covered taxes, while Appellant continued to occupy and utilize property solely for his own economic purposes, Ito Appellees' exclusion). Accordingly, we affirm on the basis of the trial court's opinion. Judgment affirmed. Judgment Entered: a ruty?Prothonotary September 19, 2008 Date: N CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) 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: Ruth Bender and Alice Beers vs. Donald Wood, Sr. 2004-2496 Civil 1907 MDA 2007 • The documents comprising the record have been numbered from No.l to 101, 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 01/07/2008 . 0~ C rtis R. Lon o hon ry Regina Le An additional copy of this certificate is enclosed. ~I~Q~ ~I~l~rA~ ~$~~ cony, thereby acknowledging receipt of this record. SAN o a zoos Date Signature & Ti,~DLE C • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) AMENDED 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: Ruth Bender and Alice Beers vs. Donald Wood, Sr. 2004-2496 Civil 1907 MDA 2007 r The documents comprising the record have been numbered from No.102 to 141, 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 01/15/2007 . /~ Cu is R. Lon o onota Regina Lebo An additional copy of this certificate is enclosed Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title in ~uperlor Court JAN 1 5 20~~8 MIDp~E A CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER i PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) AMENDED 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: Ruth Bender and Alice Beers vs. Donald Wood, Sr. 2004-2496 Civil 1907 MDA 2007 • The documents comprising the record have been numbered from No.102 to 141, 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 01/15/2007 . ~t Cu s R. Long, not Regina Lebo An additional copy of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Sig ~' x=~'~~~' r~-~„~., ,~F.,,.._.~ . Y :; . j,~° ~f~!~' 1