HomeMy WebLinkAbout08-11-10In re: In the Court of Common Pleas
Beverly Park, Borough of Cumberland County, Pennsylvania
Camp Hill, Cumberland Orphans' Court Division
County, Pennsylvania No. ~ 1 - IC j - ~j ~, ~ ~
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PETITION OF THE BOROUGH OF CAMP HILL ~,~ ~ ~.~~ ~ f ~,?
AND CATHY L. SOWERS `. ~ =L ~ ~''
TO QUITCLAIM DONATED OR DEDICATED PROPER? -- ' - ' ' ''
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TO THE HONORABLE JUDGES OF THE ORPHANS' COURT: -r,==~ ~' ~ "~`
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AND NOW, come Petitioners, the Borough of Camp Hill, by and through its attorneys,
Nauman, Smith, Shissler & Hall, LLP, and Cathy L. Sowers, by and through her attorneys,
Saidis Sullivan Law, P.C., and pursuant to the Pennsylvania Donated or Dedicated Property
Act, 53 P.S. X3381 et seq, (the "Act")jointly set forth the following Petition to Quitclaim a
Portion of Beverly Park to Cathy L. Sowers, as follows:
1. Petitioners are the Borough of Camp Hill, a political subdivision of the Commonwealth
of Pennsylvania, with its principal place of business at 2145 Walnut Street, Camp Hill,
Pennsylvania 17011 (hereinafter "Borough") and Cathy L. Sowers, who is an adult individual
residing at 3116 Beverly Road, Camp Hill, Pennsylvania 17011 (hereinafter "Sowers") and
(hereinafter collectively "Petitioners).
2. On or about July 24, 1939, the Borough of Camp Hill approved the Plan of Beverly
Park, formerly known as Spring Lake Park (hereinafter "Beverly Park").
3. The Borough has not heretofore by Ordinance or any other document formally accepted
Beverly Park as a public park.
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4. Sowers' residential real estate known and numbered as 3116 Beverly Road, Camp Hill,
Pennsylvania 17011 (hereinafter the "Real Estate") is adjacent to Beverly Park and shares a
common boundary with Beverly Park.
5. On or about October 3, 2003, Sowers was issued a building permit, Permit No. 272-
2003, by the Borough, to construct a garage on the Real Estate.
6. Pursuant to the building permit, in 2003, Sowers built the garage on the Real Estate
and on a portion of Beverly Park ("Encroachment Area") which Sowers believed to be part of
the Real Estate owned by Sowers.
7. Notwithstanding the lack of enactment of an Ordinance formally accepting Beverly
Park as a public park of the Borough, the area of Beverly Park, excluding the Encroachment
Area, has been maintained by the Borough and used by the general public as a municipal park
for many years.
8. The Borough and Sowers were not aware of the encroachment until Sowers attempted
to list the Real Estate for sale in 2008 and a property survey was performed. Sowers had
believed, based on the Permit and the natural boundaries, that her real estate boundary with
Beverly Park, extended to the hedgerow to the west of her residence, consistent with the
sidewalk on her property.
9. A copy of the survey titled, "Plan of Property of Cathy L. Sowers" is attached hereto,
made a part hereof and marked Exhibit "A."
10. Exhibit "A" displays the 2,424 square foot lot addition, which the Petitioners are
proposing.
11. In addition to the garage, Sowers' shed and driveway encroach onto Beverly Park.
12. Both the Borough and Sowers believe that it would be inequitable under the
circumstances to request the Sowers to remove the garage, driveway, and shed in light of the
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fact that the Encroachment Area by virtue of the property contours has not been used by the
general public or maintained by the Borough and is not practicable for such use.
13. Section 3384 of the Pennsylvania Donated or Dedicated Property Act, 53 P.S. ~ 3384,
Orphans' Court Relief, reads in pertinent part:
"When, in the opinion of the political subdivision which is the trustee, the
continuation of the original use of the particular property held in trust as a public
facility is no longer practicable or possible and has ceased to serve the public
interest, or where the political subdivision, ..., is in doubt as to the effectiveness
or the validity of an apparent dedication because of the lack of a record of the
acceptance of the dedicated land or buildings, the trustee may apply to the
orphans' court of the county in which it is located for appropriate relief. The
court may permit the trustee to -
(4) Relinquish, waive or otherwise quitclaim all right and title to such land and
buildings as have been apparently dedicated but for which no formal acceptance
appears of record: Provided, only, that the court is satisfied upon the evidence
that there is no acceptance by implication arising out of public use or otherwise,
the court shall also determine the consideration, if any, to be paid to the political
subdivision."
14. In accordance with S3 P.S. ~ 3384(4), the Borough seeks permission to quitclaim a
small strip of land consisting of 2,424 square feet as set forth on Exhibit "A" (hereinafter
"Proposed Lot Addition"), which represents property between the Sowers' Real Estate and
the existing line of hedges and embankment.
15. Sowers believed that the line of hedges (which would be the new boundary) was the
natural and actual boundary line of Beverly Park with the Real Estate.
16. The Borough believes that the Proposed Lot Addition was never used by the general
public or maintained by the Borough as a portion of Beverly Park and, therefore, it is no
longer practical or possible to use the "Proposed Lot Addition" to serve the public interest.
17. To the best of your Petitioners' knowledge, the general public has never made use of
the "Proposed Lot Addition".
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18. The Borough never maintained or used the "Proposed Lot Addition".
19. The Borough has never taken any other action to indicate that the "Proposed
Lot Addition" was accepted by the Borough by implication.
20. Sowers, since she purchased the residence on August 19, 2003, have always
maintained and cared for the "Proposed Lot Addition" as she believed it was her Real
Estate.
21. It would be inequitable to require the Sowers to remove the shed, driveway, and
garage built on the "Proposed Lot Addition" in light of the fact of the Borough's lack
of formal acceptance or maintenance of the property comprising the "Proposed Lot
Addition" as part of the Borough Park known as Beverly Park.
22. The Proposed Lot Addition will be appraised and a value submitted to Your
Honorable Court to determine the consideration, if any, to be paid by Sowers to the
Borough.
23. Notice of the filing of this Petition has been given to the Attorney General of
Pennsylvania in accordance with Section 3385 of the Act. 53 P.S. § 3385. A true and
correct copy of the notice is attached hereto as Exhibit "B". The Attorney General has
advised counsel for the Borough that they will not object to this Petition.
WHEREFORE, Petitioners, the Borough of Camp Hill and Cathy L. Sowers,
respectfully requests this Honorable Court to schedule a hearing on this Motion and thereafter
enter an Order granting the Borough of Camp Hill permission to relinquish, waive, and
quitclaim all of its right, title and interest to the area of the Proposed Lot Addition to Sowers
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to determine a consideration, if any, to be paid by Sowers to the Borough; and such
other relief as Your Honorable Court shall deem appropriate and necessary.
Respectfully Submitted,
. Stephen Feinour, Esquire
Supreme Court ID #24580
Joshua D. Bonn, Esquire
Supreme Court ID #93967
Nauman Smith Shissler & Hall, LLP
200 North 3`d Street, 18~' Floor
P. O. Box 840
Harrisburg, PA 17101
(717) 236-3010
Solicit fo orough of Camp Hill
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Robe C. i s, Esquire
Supreme Court ID #21458
Saidis Sullivan Law, P.C.
26 West High Street
Carlisle, PA 17013
(717) 243-6222
Attorney for Cathy Sowers
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VERIFICATION
I verify that the statements made in the foregoing Petition are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §
4904, relating to unsworn falsification to authorities.
Date ~~ ~~
Cathy L. So ers
VERIFICATION
I verify that the statements made in the foregoing Petition are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
Date ~~
Boro Camp Hill
By:
Borough Manager
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EXH IT
Nauman Smith
Please Reply to:
P. O. Box 840
Harrisburg, PA 17108-0840
Attorneys A t L a w
July 23, 2010
J. Stephen Feinour
E-mail: sfeinour(cr~nssh com
VIA HAND DELIVERY
Office of the Attorney General
Attention: Mark A. Pacella
Chief Deputy Attorney General
Charitable Trusts & Organizations Section
Commonwealth of Pennsylvania
14`h Floor Strawberry Square
Harrisburg, PA 17120
RE: Petition of the Borough of Camp Hill and Cathy L. Sowers to Quitclaim
Donated or Dedicated Property
Dear Mr. Pacella:
You will please find enclosed a true and correct copy of the Joint Petition of the Borough of
Camp Hill and Cathy L. Sowers to Quitclaim Donated or Dedicated Property which is to be filed
with the Cumberland County Court of Common Pleas, Orphans' Court Division on or about August
3, 2010. This notice is being given to your office in accordance with the provisions of Section 3385
of the Pennsylvania Donated or Dedicated Property Act, 53 P.S. § 3385. The subject of the Petition
is a small strip of property which heretofore was believed to be owned by a private property owner
but a recent survey has disclosed to encroach into property known as Beverly Park.
I would be pleased to answer any questions you may have regarding this Petition.
Very truly yours,
'S ~
J. Stephen Feinour
Solicitor for the
Borough of Camp Hill
JSF/jc
Enclosure
cc: Robert C. Saidis, Esquire
Gary Kline, Borough Manager
Superior a n a l y s i s
EXHIBIT
Effective solutions . Since 1 f3 7 1
Nauman Smith Shissler & [-Tall, LLP • 200 North 3rd Street • Harrisburg, PA 17101 • 717.236.3010 • Fax: 717.234.1925 • www.nssh.com