HomeMy WebLinkAbout10-0408RODGER E. NICKLE and IN THE COURT OF COMMON PLEAS OF
ROBIN L. NICKLE, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
JERRY L. McKEE, NO. 2010 - L???? ?? ?Grm
Defendant
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C-
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166,
1-800-990-9108 °G
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AMERICANS WITH DISABILITIES
Act of 1990
The Court of Common Pleas of Cumberland County is required by law to comply with
the Americans with Disabilities Act of 1990. For information about accessible facilities and
reasonable accommodations available to disabled individuals having business before the court,
please contact our office. All arrangements must be made at least 72 hours prior to any hearing
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2
RODGER E. NICKLE and
ROBIN L. NICKLE,
Plaintiffs
V.
JERRY L. McKEE, ,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2010 - 7vd Ctv t
COMPLAINT
BREACH OF CONTRACT
AND NOW comes the Plaintiffs, RODGER E. NICKLE, JR. and ROBIN L.
NICKLE, by and through their attorneys, Irwin & McKnight, P.C., and makes the following
Complaint against the Defendant, JERRY L. McKEE, as follows:
1.
The Plaintiffs are Rodger E. Nickle and Robin L. Nickle, adult individuals residing at 18
Southside Drive, Newville, Cumberland County, Pennsylvania 17241.
2.
The Defendant is Jerry L. McKee, an adult individual who resides at 12 Southside Drive,
Newville, Cumberland County, Pennsylvania 17241.
3.
Pursuant to a subdivision approved by Penn Township, Cumberland County,
Pennsylvania, recorded at Plan Book 56, Page 74, a common water well as installed on the real
estate at 12 Southside Drive, to supply the needs of both properties including the Plaintiffs'
property located at 18 Southside Drive, Newville, Cumberland County, Pennsylvania 17241.
A copy of the Subdivision Plan is attached hereto and marked as Exhibit "A".
3
4.
The Defendant purchased the property from the estate of Mary J. Walker on August 22,
2002. From the date of the purchase of the property, the Defendant knew that his well supplied
both his property and the property of the Plaintiffs. A copy of the deed is attached hereto and
marked as Exhibit "B".
5.
On or about August 10, 2007, the Defendant without warning and in violation of the
subdivision plan and the agreement he assumed when he purchased the property, shut off the
water supply to the Plaintiffs.
6.
The Defendant was confronted about the water supply and replied that he had a dispute
with Jeffrey Nickle regarding a fence and he was shutting off the Plaintiffs' water in retaliation.
7.
The Plaintiffs needed a reliable potable water supply and were forced to drill a new well
on or about August 28, 2007, at a cost of Six Thousand Two Hundred Eighty and no/100
($6,280.00) Dollars. A copy of the invoice is attached hereto and marked as Exhibit "C".
8.
Despite repeated attempts to resolve this matter, the Defendant has refused to compensate
the Plaintiffs for the costs of a new well and for the disruption the intentionally caused by
violating the agreement to share the water supply located on his real estate.
4
9.
The Plaintiffs seek the following:
Cost of the new well .................................. $6,280.00
Damages caused by breach of contract:
Work loss ...................................................... $500.00
Reasonable legal fees ...................................... 900.00
Total .......................................................... $7,680.00
WHEREFORE, the Plaintiffs seek the sum of $6,280.00, from the Defendants for the
cost of a new well as well as reasonable legal fees of $900.00 and work loss of $500.00 and
interest as permitted by law.
Respectfully submitted,
Date: January 19, 2010
IRWIN &
By: ,
VI IGHT, P.C.
Marcus McKnight, III, Esquire
Supreme 'Court I.D. #: 25476
60 West Pomfret Street
Carlisle, PA 17013
(717) 249-2353
Attorney for the Plaintiffs
5
EXHIBIT "A"
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EXHIBIT "B"
T P. ZIEGLER
OF DEEDS
1. ;;ERLAND COUNTY
.02 AUG 26 A(? 22 PARCEL NO. 31 - 33 -- 1710 - 019
DEED
MADE THE ?Z PAday of August in the year Two Thousand Two (2002),
BETWEEN MARGARET R. RICHWINE and CAROLYN L. WALKER, executrices
of the Estate of MARY J. WALKER, deceased, of Mt. Holly Springs, Cumberland
County, Pennsylvanial7065, hereinafter called Grantors,
AND JERRY L. McKEE, single man, of Newville, Cumberland County,
Pennsylvania, hereinafter called Grantee:
WHEREAS, Mary J. Walker died on August 5, 2002, having first made her last
will and testament wherein she provided, inter alia, that her executrices had the power
to sell any real estate owned by her at her death and nominated and appointed
Margaret R. Richwine and Carolyn L. Walker as her executrices; and
WHEREAS, the said Margaret R. Richwine and Carolyn L. Walker were duly
appointed executrices of the Estate of Mary J. Walker and continue to act as such;
WITNESSETH, that in consideration of the sum of Thirty-seven Thousand Five
Hundred and no/100 ($37,500.00) Dollars, in hand paid, the receipt whereof is hereby
acknowledged, the grantors do hereby grant and convey unto the grantee, his heirs and
assigns:
ALL that certain tract of land situate in the Village of Brushtown, Penn Township,
Cumberland County, Pennsylvania, bounded and described as follows:
BEGINNING at a spike in the center of Township Road No. 349 at the comer of
land now or formerly of John Kuhn; thence in said road and along land now or formerly
eoOK 253 ?; ... 1532-
of Jay Shannon, North 81 degrees 28 minutes West, a distance of 238.21 feet to an iron
pin; thence along land now or formerly of Richard Stone, North 00 degrees 27 minutes
West, a distance of 378.72 feet point to an iron pipe; thence along land now or formerly
of Clarence Rhoades, North 83 degrees 46 minutes 20 seconds East, a distance of
242.91 feet to an iron pipe; thence along land now or formerly of John Kuhn, South 00
degrees 19 minutes West, a distance of 440.25 feet to a spike, the Place of
BEGINNING.
Said description is less the following deeds: Deed from John E. Walker to Jeff
Nickle, dated in 1989, and Deed from John E. Walker to Rodger and Robin Nickle,
dated in 1989.
CONTAINING 2.240 acres, more or less.
CQNE)?TAND COUNTY TAX I.D.: 31-33-1710-011.
BEING the same premises which JOHN E. WALKER granted and conveyed to
JOHN E. WALKER and MARY J. WALKER, his wife, by deed dated January 31, 1995
and recorded in the Office of the Recorder of Deeds for Cumberland County,
Pennsylvania in Deed Book 118275, Page 267.
The said John E. Walker died on November 3, 1996, thereby vesting full title in
Mary E. Walker. Mary E. Walker died on August 5, 2002, having first made her last will
and testament wherein she provided as aforesaid.
TOGETHER with all and singular ways, waters, water-courses, rights, liberties,
privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in
anywise appertaining, and the reversions and remainders, rents, issues and profits
thereof; and also, all the estate, right, title, interest, use, trust, property, possession,
claim and demand whatsoever, in law, equity or otherwise howsoever, of, in, to or out of
the same:
Door ?5s QAtE 533
TO HAVE AND TO HOLD, the said hereditaments and premises hereby granted
and released, or mentioned and intended so to be, with the appurtenances, unto the
said grantee, his heirs and assigns, to and for the only proper use and behoof of the
said grantee, his heirs or assigns forever. And the said grantor covenants, promises
and agrees to and with the said grantees, his heirs and assigns, by these presents that
the said grantor has not done, committed or knowingly or willingly suffered to be done or
committed, any act, matter or thing whatsoever whereby the premises hereby granted,
or any part thereof is, are, shall or may be impeached, charged or encumbered, in title,
charge, estate or otherwise howsoever.
WITNESS the due execution hereof the day, month and year first above written.
WITNESS:
ESTATE OF MARY J. WALKER
COMMONWEALTH OF PENNSYLVANIA:
:ss:
COUNTY OF CUMBERLAND
"P
On this, the day of August, 2002, before me the undersigned officer,
personally appeared MARGARET R. RICHWINE and CAROLYN L. WALKER,
executrices of the Estate of Mary J. Walker, known to me (or satisfactorily proven) to be
the persons whose names are subscribed to the within instrument, and acknowledged
that they executed same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto p6tjft hand and seal.
Notarial Seal
Harold S. Irwin III, Notary Public
carNsl0 Boro. E ?grland County 2002 Notary ublic
My Coear+isabn >?
Member, permSylvania Association of Notaries
Book 253 eni- 1534
(? 1 in kAh [ 1 ?a 0 D (SEAL)
CXR- CE V MW L ER, xecu x
I do hereby certify that the precise residence and complete post office address of
the within named grantee is:
12 South Side Drive
Newville, Pa. 17241
August 22 , 2002
Attorney for grantee
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COMMONWEALTH OF PENNSYLVANIA:
:ss:
COUNTY OF CUMBERLAND
RECORDED on this day of August, 2002, in the Recorder's office of the
said County, in Deed Book , Page Given under my hand and seal of the
said office, the date above written.
Recorder
1 Certify this to be recorded
In Cumberland County PA
Recorder of Deeds
HAROLD S. IR
ATTORNEY-A
35 EAST HIGFMn
CARLISLE PA i
717-243-6090 ¦
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BOOK X53 PAriS?5
EXHIBIT "C"
30 Myers Road,
Nemille, PA 17241
www.funksdrilling.com
Phone 717-776-3181
Phone 717-423-6688
Fax 717-423-5201
CUSTOMER NO.: 06267 INVOICE NO.: 000191930000 DATE: 08/28/07
SOLD TO:
RODGER NICKLE
18 SOUTHSIDE DRIVE
NEWVILLE, PA 17241
SALES- ORDER
SHIP DATE SHIPPED VIA F.O.B. TERMS PERSON DATE P.O. NUMBER
---------- ----------- -
NET 15
---------- ---------------- UNIT
QUANTITY DESCRIPTION PRICE AMOUNT
8/24/07, INSTALL PUMP IN NEW WELL
1 PUMP, AERMOTOR T8-50-23OPC 585.60 585.60
MOTOR CODE F1407X110499
1 TANK TEE, 1" COMPLETE W/ CONTROLS 115.00 115.00
1 PITLESS ADAPTER BC10X W CHK VALVE 85.20 85.20
1 CHECK, # 80E BRASS LINE CHECK 24.02 24.02
185 PIPE - 1"COIL, 160LB, PER FT. 0.62 114.70
35 PIPE, 3" FLEX 0.60 21.00
155 WIRE, 10/2 W GRND PUMP CABLE, / FT 1.06 164.30
40 WIRE, OF 12/2 W GRND, PER FT. 0.88 35.20
3 WIRE GUARDS, SLIP ON, EA. 1.50 4.50
1 SPLICE KIT (CLEAR 2), EA. 2.80 2.80
1 TORQUE ARRESTOR (T48) 12.00 12.00
8 CLAMPS, 1" STAINLESS STEEL 0.99 7.92
3 ELECTRICAL TAPE 3M, PER ROLL 1.20 3.60
1 BRASS BUSHING 1 1/4 X 1" 5.12 5.12
4 BRASS ADAPTER 1" INSERTxML 8.58 34.32
2 BRASS, 1"X 5" NIPPLE, EA. 6.42 12.84
1 BRASS, 1" 90 ELBOW, EA. 5.54 5.54
1 BRASS BALL VALVE 1", EA. 12.34 12.34
1 BRASS, 1" COUPLING, EA. 5.54 5.54
1 BRASS, 1" X 3/4" BUSHING, EA. 4.28 4.28
1 CPVC, 3/4" MALE ADPT, EA. 1.74 1.74
3 CPVC, 3/4" 90 ELBOW, EA. 0.90 2.70
MASTER CARD OR VISA ACCEPTED.
THANK YOU FOR YOUR BUSINESS.
ACCTS OVER 30 DAYS WILL BE BILLED @ 1.5% INT.
*CONTINUED*
Wells • Pumps 9 Water Treatment
30 Myers Road,
Newville, PA 17241
www.funksdriIling.com
Phone 717-776-3181
Phone 717-423-6688
Fax 717-423-5201
CUSTOMER NO.: 06267 INVOICE NO.: 000191930000 DATE: 08/28/07
SOLD TO:
RODGER NICKLE
18 SOUTHSIDE DRIVE
NEWVILLE, PA 17241
SALES- ORDER
SHIP DATE SHIPPED VIA F.O.B. TERMS PERSON DATE P.O. NUMBER
NET 15
QUANTITY DESCRIPTION
4 CPVC, 3/4" PIPE, PER FT.
1 LABOR AND INSTALLATION COMPLETE
PUMP IS SET AT 150'
MASTER CARD OR VISA ACCEPTED.
THANK YOU FOR YOUR BUSINESS.
ACCTS OVER 30 DAYS WILL BE BILLED @ 1.5% INT.
UNIT
PRICE AMOUNT
-----------------------
1.68 6.72
285.00 285.00
SUB-TOTAL 1,551.98 SHIPPING CHARGES 0.00
* T H A N K Y 0 U *
SALES TAX 0.00 TOTAL 1,551.98
Wells 9 Pumps • Water Treatment
30 Myers Road,
Nemille, PA 17241
www.funksdrilling.com
CUSTOMER NO.: 06267
SOLD TO:
RODGER NICKLE
18 SOUTHSIDE DRIVE
NEWVILLE, PA 17241
Phone 717-776-3181
Phone 717-423-6688
Fax 717-423-5201
INVOICE NO.: 000191880000 DATE: 08/28/07
SALES- ORDER
SHIP DATE SHIPPED VIA F.O.B. TERMS PERSON DATE P.O. NUMBER
NET 15
UNIT
QUANTITY
-----------
----------- DESCRIPTION
------------------------------------
------------------------------------
---------
--------- PRICE
--------
-------- AMOUNT
--------------
--------------
8/20/07, NEW WELL DRILLED
240 DRILLING - 6" SANDSTONE, PER FT. 8.00 1,920.00
100 CASING, 8 5/8" STEEL, PER FT. 19.00 1,900.00
225 CASING, STEEL 6 5/8"OD , PER FT. 10.50 2,362.50
1 DRIVE SHOE, 6-1/4 WELD ON 60.00 60.00
1 WELL CAP, STANDARD FUNK'S 6 5/8" 37.50 37.50
WELL PRODUCES 30 GALLONS PER MIN.
MASTER CARD OR VISA ACCEPTED.
THANK YOU FOR YOUR BUSINESS.
ACCTS OVER 30 DAYS WILL BE BILLED @ 1.5% INT.
------------------------------------------------------------------------------
------------------------------------------------------------------------------
SUB-TOTAL 6,280.00 SHIPPING CHARGES 0.00
* T H A N K Y 0 U *
SALES TAX 0.00 TOTAL 6,280.00
Wells • Pumps • Water Treatment
VERIFICATION
The foregoing document is based upon information which has been gathered by counsel
and ourselves in the preparation of this action. We have read the statements made in this
document and they are true and correct to the best of my knowledge, information and belief. We
understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section
4904, relating to unsworn falsification to authorities.
-O I
&A4'M td?o
R DGER ICKLE
OBIN NICKLE
Date: JANUARY 19, 2010
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Edward L Schorpp
Solicitor
Rodger E. Nickle
vs.
Jerry Lee McKee
???t?tin Iyt 41IrnGrr/;??10
OFFICE;! Th --;RIFF
FILED-ovACE
t?F THE PROTH"'IN CTAFY
1010 FEB -8 AM 11: 59
CUhr -.;!;N Y
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Case Number
2010-408
SHERIFF'S RETURN OF SERVICE
02/01/2010 05:23 PM - Robert Bitner, Deputy Sheriff, who being duly sworn according to law, states that on February
1, 2010 at 1723 hours, he served a true copy of the within Complaint and Notice, upon the within named
defendant, to wit: Jerry Lee McKee, by making known unto himself personally, at 12 South Side Drive,
Newville, Cumberland County, Pennsylvania 17241 its contents and at the same time handing to him
personally the said true and correct copy of the same.
SHERIFF COST: $50.04
February 03, 2010
SO AN ERS
O rYYRRDERSON, SHERIFF
Deputy She iff
c) GouwySu le Shenff, Teleosoft Inc
Rodger E. Nickle and Robin L. Nickle
vs Case No. 2010-408
Jerry L. McKee
Statement of Intention to Proceed
To the Court:
T♦-^
The Plaintiffs intends to proceed ith the ab• e captioned stter:--
rrZRi <-7
/.2='-7 - s
Print Name Marcus A. McKnight, III Sign Name ' _ (r:T N
�_` °za
Date: October 21, 2013 Attorney for Plaintiffs -=
Explanatory Comment -..)
The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of
inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit
comment.
I.Rule of civil Procedure
New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the
scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously
governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is
tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting
local rules.
This rule was promulgated in response to the decision of the Supreme Court in Shop v.Eagle,551 Pa.360,710 A.2d
1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required
before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901."
Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The
general policy of the prompt disposition of matters set forth in subdivision(a)of that rule continues to be applicable.
II Inactive Cases
The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the
court. After giving notice of intent to terminate an action for inactivity,the course of the procedure is with the parties.
If the parties do not wish to pursue the case, they will take no action and"the Prothonotary shall enter an order as of
course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter,he or she
will file a notice of intention to proceed and the action shall continue.
a. Where the action has been terminated
If the action is terminated when a party believes that it should not have been terminated, that party may proceed
under Ru1e230(d)for relief from the order of termination. An example of such an occurrence might be the termination
of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file
the notice of intention to proceed.
The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of
the entry of the order of termination on the docket,subdivision(d)(2)provides that the court must grant the petition and
reinstate the action. If the petition is filed later than the thirty-day period, subdivision(d)(3)requires that the plaintiff
must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or
legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of
termination on the docket and for the failure to file the petition within the thirty-day period under subdivision(d)(2).
B. Where the action has not been terminated
An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may
have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a
common law non pros which exits independently of termination under Rule 230.2.