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HomeMy WebLinkAbout10-5430 4153 MANAGEMENT, INC., : IN THE COURT OF COMMON PLEAS OF trading as U D PROPERTIES, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. n . NO. 10 -_q4W Civil l rr NORMAN K A HOFFER and MATTHEW D. HOFFER, trading o as 114 ASSOCIATES, : CIVIL ACTION - LAW/EQUITY ?? -'__ Defendants : JURY TRIAL DEMANDED NOTICE TO DEFEND W YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 (717) 249-3166 e?" 837 Q,# ay7ot8 ? t 4153 MANAGEMENT, INC., trading as U D PROPERTIES, Plaintiff V. NORMAN K A HOFFER and MATTHEW D. HOFFER, trading as 114 ASSOCIATES, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. : CIVIL ACTION - LAW/EQUITY : JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, 4153 Management, Inc., trading as U D Properties, by and through its attorneys, Wix, Wenger and Weidner, and files this Complaint, stating as follows: Factual Averments 1. The Plaintiff is 4153 Management, Inc., a Pennsylvania corporation, the sole general partner of U D Properties, a Pennsylvania limited partnership, with a 2. 3. business address of 750 East Park Drive, Harrisburg, PA 17111. Defendants are Norman K. A. Hoffer and Matthew D. Hoffer, adult individuals, who are believed, and therefore averred, to be the general partners of, and trading and doing business as 114 Associates, a Pennsylvania general partnership, and who maintain a business address of 4479 Chambers Hill Road, Harrisburg, PA 17111. Venue is proper in this County because the properties at issue are located in Cumberland County. 1 4. This action is not subject to compulsory arbitration because Plaintiff seeks equitable relief and the amount in controversy exceeds $50,000.00. 5. The Plaintiff is the fee simple title owner of a certain piece of real estate located in Silver Spring Township, Cumberland County, Pennsylvania, being tax parcels 38-07-0459-054 and 38-19-1612-039, as more particularly described in a Deed dated May 6, 2004, and recorded May 7, 2004, in the Cumberland County, Pennsylvania Recorder of Deeds Office in Record Book 262, pages 4523 to 4527 (the "U D Tract"). 6. Plaintiff obtained title of the U D Tract from PHICO Realty Corporation. 7. The Defendants are the fee simple title owners of certain pieces of real estate located in Silver Spring Township, Cumberland County, Pennsylvania, being tax parcels 38-19-1612-019 and 38-07-0459-034 and more particularly described in the following Deeds, (collectively the 114 Associates Tract"): a. Deed dated December 23, 2004, and recorded in the Cumberland County, Pennsylvania Recorder of Deeds Office in Record Book 266, pages 4600 to 4605, from M. Diane Koken, Insurance Commissioner of the Commonwealth of Pennsylvania, in Her Official Capacity as Statutory Liquidator of PHICO Insurance Company. b. Deed dated January 24, 2008, and recorded February 8, 2008, in the Cumberland County, Pennsylvania Recorder of Deeds Office to Instrument No. 200803968, from ADGI, a limited partnership. 8. M. Diane Koken, Insurance Commissioner of the Commonwealth of Pennsylvania, in Her Official Capacity as Statutory Liquidator of PHICO 2 Insurance Company is the successor in interest to the PHICO Insurance Company, which was the owner of the 114 Associates Tract in July, 2001. 9. Prior to 2001 the previous owner of the 114 Associates Tract, PHICO Insurance Company, constructed a large office building (approximately 22,000 square feet) upon the 114 Associates Tract commonly known as the "PHICO Building". 10. The U D Tract is adjacent to the 114 Associates Tract and essentially surrounds the tract, as is more fully shown on the plan attached hereto as Exhibit "1" and incorporated herein by reference as if set forth in full. 11. Pursuant to a document entitled "Access Easement and Right of Way" dated July 19, 2001, a copy of which is attached hereto as Exhibit "2" and incorporated herein by reference (the "Easement Agreement"), PHICO Realty Corporation purportedly granted unto PHICO Insurance Company a nonexclusive, unconditional and perpetual easement and right of way over a specifically delineated area of Plaintiff's predecessor's land, as shown on the diagram attached to the Easement Agreement, consisting of essentially a forty foot wide easement (the "Easement Area") for ingress, egress, and regress to the PHICO building, over the portion of the U D Tract as more specifically identified in the Easement Agreement, in exchange for the commitment of PHICO Insurance Company to construct a road, the purpose of which was limited to providing ingress and egress to the PHICO Building. 12. Paragraph 8 of the Easement Agreement required the Easement Agreement to be recorded in the Office for the Recorder of Deeds for Cumberland County; but the Easement Agreement was never recorded. 3 13. The Easement Area purportedly granted to the grantee in the Easement Agreement was generally limited in width to forty feet for most of its length and clearly depicted and delineated on a plan identified as "Access Easement Lands of PHICO Realty Corp." dated 9-13-99 and apparently revised 7/19/01 (the "Easement Plan") and attached to the Easement Agreement as Exhibit C thereto. 14. In March or April of 2010, without notice to or approval of Plaintiff, Defendants, experienced, sophisticated and knowledgeable real estate developers commenced construction of a roadway both within the Easement Area boundaries and outside the boundaries of the Easement Area. 15. In connection with the construction of the said roadway, Defendants knowingly, willfully, recklessly, and intentionally: a. Built concrete walls, placed and graded fill, and created a rock apron on the U D Tract outside of the Easement Area without notice to or consent by Plaintiff; b. Caused trucks, graders, and other construction equipment to enter the U D Tract outside of the Easement Area, without notice to or consent by Plaintiff; C. For a substantial portion of its length over the U D Tract, constructed the roadway within (and outside of) the Easement Area at an elevation substantially above the elevation of the U D Tract, to the material detriment of the value of Plaintiff's property essentially depriving Plaintiff of its rights as servient tenement to access and use the Easement Area and the roadway to enhance the value of the U D Tract. 4 16. Construction of the roadway in the manner set forth in paragraph 15 above deprives Plaintiff of its use of the Easement Area in direct breach of the non- exclusive provision of the Easement Agreement. 17. Construction of the roadway outside of the Easement Area, at a height above that of the adjoining U D Tract, impairs Plaintiff's access to the Easement Area and otherwise diminishes the value of the remaining U D Tract. 18. The Defendants construction of the roadway, by crossing over and into the property of Plaintiff was a trespass, and the portions of the roadway exceed the forty-foot limitation of the Easement Area and are, therefore, a permanent and continuing trespass. Attached hereto as Exhibit "3" is an "as built survey" of the roadway built by Defendants on the U D Tract, which shows the boundaries of the Easement and the elements of the roadway that exceed those boundaries. 19. The construction of the roadway at an elevation significantly higher than the surrounding property was not performed within reasonable standards of design and was constructed in such a way, intentionally and in bad faith, so as to diminish permanently the value of Plaintiff's property and its capacity for development, by rendering access much more difficult and expensive, requiring Plaintiff to raise the elevation of the U D Tract to meet the elevation of the roadway, and obtain access thereto. 20. Despite the actual knowledge of the Defendants of the need and duty to keep the roadway and the construction thereof strictly within the Easement Area, the Defendants intentionally, defiantly and in disregard of the property rights of the 5 Plaintiff, entered upon other lands of Plaintiff and constructed the roadway outside the parameters of the Easement Area. 21. Pursuant to a Final Limited Subdivision Plan for PHICO Group, Inc. recorded June 22, 1994, in the Cumberland County Recorder of Deeds Office in Plan Book 68, Page 61 (the "PHICO Subdivision Plan"), the predecessor in title of the U D Tract and the 114 Associates Tract, subdivided said properties and created a stormwater drainage easement and detention basin (the "Stormwater Easement") over and across a portion of the 114 Associates Tract, which Stormwater Easement was intended to benefit both the U D Tract and the 114 Associates Tract. A reduced copy of the relevant portion of the PHICO Subdivision Plan is attached hereto as Exhibit "4" and made a part hereof. 22. The Deed to the U D Tract specifically refers to the PHICO Subdivision Plan, thereby vesting in the Plaintiff all rights in and to the drainage easements and other similar amenities shown on the PHICO Subdivision Plan. 23. The Defendants are developing the 114 Associates Tract and propose to relocate the drainage easements in order to construct several large additional commercial buildings, parking and other facilities, including, but not limited to, stormwater control facilities, as more fully shown on the Preliminary Land Development Plan dated January 15, 2009, last revised March 3, 2010, a reduced copy of which is attached hereto as Exhibit "5" and made a part hereof. 24. On or about August 26, 2009, upon application from 114 Associates, the Silver Spring Township Board of Supervisors approved the Preliminary Land Development Plan for the 114 Associates Tract. 6 25. The Preliminary Land Development Plan of the Defendants unilaterally and without the consent or knowledge of the Plaintiff reconfigures, reduces the size of and/or removes the Stormwater Easement and other amenities as set forth in the PHICO Subdivision Plan. 26. Construction of the reconfigured drainage areas is currently underway, contrary to Plaintiffs rights. 27. The Easement Agreement required the grantor to obtain all necessary permits to construct any improvements in the Easement Area. 28. Upon information and belief, the Plaintiff avers that the Defendants had not obtained all the necessary permits required to construct the roadway. 29. Any permits obtained by Defendants were based on unauthorized encroachments on and use of the U D Tract, and are, therefore, void and of no effect. 30. Alternatively, upon information and belief, the Plaintiff avers that the Defendants provided false, misleading or fraudulent information to Silver Spring Township and other governmental agencies, to obtain the necessary permits to construct the roadway. 31. The roadway constructed exceeds the scope of the Easement Agreement in that 114 Associates has created a relocated connecting roadway between State Route 114 (also known as Hogestown Road) and the Carlisle Pike, and does not simply provide access to the PHICO Building and other property of the Defendants, as originally provided in the Easement Agreement. 7 32. The roadway construction has created artificial water drainage patterns on Plaintiffs property beyond the Easement Area and that violate Plaintiff's property rights. 33. Defendants have a documented history of having been, in the exercise of their property rights, reckless and indifferent to the rights of other property owners in connection with the development of other real estate for a commercial purpose. 34. The Defendants intentionally, knowingly, willfully, wantonly, recklessly and outrageously trespassed, as more fully set forth above, upon the property of the Plaintiff, and without the consent of Plaintiff, and the Defendant's stated denial of Plaintiff's rights to utilize the Easement Area, have caused serious and irreparable harm to the Plaintiff and the Plaintiff's property. Count I - Trespass 35. Paragraphs 1 through 34 are incorporated herein by reference as if set forth in full. 36. Defendants directed and instructed their employees or agents to enter the U D Tract in order to construct the roadway. 37. Defendants have no right or privilege to enter Plaintiff's property or to construct a roadway that exceeded the limitations in the Easement Agreement. 38. Defendants interfered with Plaintiff's right to peaceably enjoy full and exclusive use of Plaintiff's property. 39. Defendants' actions constitute an intentional or negligent nuisance on the Plaintiff's property. 8 40. As a result of Defendants' trespass, Plaintiff's has incurred costs, and continues to incur costs to verify the extent of Defendants' trespass. 41. Defendants' trespass upon Plaintiffs' property was in reckless disregard of Plaintiff's property rights. 42. Defendants acted intentionally, willfully and wantonly in invading Plaintiff's property, thus entitling Plaintiff to punitive damages. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment against Defendants in an amount in excess of $50,000.00, plus punitive damages for Defendants' wrongful trespass, plus costs of suit, attorneys' fees and interest, and compelling the Defendants to remove those elements of the roadway that exceed the limits of the Easement Agreement, to include removal of the roadway in its entirety if removal of only those excess elements cannot be reasonably accomplished with the standards of roadway construction or township approval. Count 11 Declaratory Judgment 43. Paragraphs 1 through 42 are incorporated herein by reference as if set forth in full. 44. The Easement Agreement is void for the following reasons: a. The Easement Agreement was never recorded in violation of a provision herein requiring recordation. b. The Defendants have unduly and unreasonably delayed in the construction of the roadway on the Easement Area. 9 C. The unreasonable delay in constructing the roadway is failure of consideration for the grant of the easement. 45. Even if the Easement Agreement is valid on its face, the Defendants were required to obtain all necessary and required permits as a condition precedent to use of the Easement Area, and failed properly and lawfully to do so, in that: a. The Defendants have not obtained all such necessary permits or obtained such permits with information that was not proper and truthful. b. The Defendants were required by the Township to obtain a construction easement to build the roadway, which the Defendants did not obtain. C. The roadway was constructed beyond the Easement Area and created a permanent obstruction to the further use of the Plaintiff's property. 46. The roadway, as constructed, creates a thoroughfare connection between Route 11 and Route 114, which constitutes such an unreasonable and excessive use of the rights granted under the Easement Agreement as to constitute repudiation thereof. 47. The actions of the Defendants have created an excessive burden on the Plaintiffs property and unreasonably interfered with the property rights of the Plaintiff. 48. The actions and statements of the Defendant, Norman K. A. Hoffer, made for himself and on behalf of 114 Associates, constitute a repudiation of the Easement as to void the Easement Agreement and any rights of the Defendants therein. 10 WHEREFORE, Plaintiff requests this Honorable Court to declare the Easement Agreement void and unenforceable in its entirety and to order the Defendants to remove the roadway and continuing trespass upon the Plaintiff's property and to restore Plaintiff's property to the condition it was before construction. In the alternative, Plaintiff requests this Court to order the Defendants to eliminate the curbs and elevated structure of the roadway so as to allow the Plaintiff its right to use of the Easement Area or, in the further alternative, to declare that the sole allowable use of the roadway for the Defendants is for access from Route 11 to the Defendants' land and that it cannot be used as a thoroughfare from Route 11 to Route 114, and that Plaintiff can utilize the roadway. Count III - Ejectment 49. Paragraphs 1 through 48 are incorporated herein by reference as if set forth in full. 50. Defendants has taken possession of the property as set forth above by exceeding the limits of the Easement Area and refusing to permit Plaintiff access to the constructed roadway. 51. Plaintiffs have the right to immediate and exclusive possession of that portion of the real property possessed by Defendants due to elements of the roadway, as constructed, exceeding the limits of the Easement Area. 52. Plaintiffs have the right to connect to the roadway, as a non-exclusive use of the Easement Area. WHEREFORE, Plaintiff requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, as follows: 11 a. Awarding exclusive possession of the Easement Area, as more specifically described above, to Plaintiff. b. Ordering that the Defendants remove those elements of the roadway that exceed the limits of Easement Area, to include removal of the roadway in its entirety if removal of only those excess elements cannot be reasonably accomplished. C. In the alternative, permitting Plaintiff to make reasonable connections to and modifications to the height of the roadway at the sole cost and expense of the Defendants in order to allow Plaintiff to enjoy reasonable access to the non-exclusive Easement Area. d. Awarding any other relief that this Court deems just and appropriate. Count IV - Preliminary and Permanent Iniunction 53. Paragraphs 1 through 52 are incorporated herein by reference as if set forth in full. 54. Defendants are about to, and will, unless restrained by this Court, extensively re- grade the Easement Area denoted on the Easement Plan as a drainage easement area, which will reduce the effectiveness of, and will deprive Plaintiff of its property rights derived from the PHICO Subdivision Plan and set forth therein authorizing and entitling Plaintiff to utilize the Stormwater Easement for the present and future development plans of the U D Tract. Accordingly, the requested relief is necessary to prevent immediate injury. 55. Defendants are about to and will, unless restrained by this Court, utilize the roadway that it has constructed, which exceeds the limits of the clear intent of the 12 Easement Agreement, and trespasses upon Plaintiff's land, for its construction purposes and access to the public. Use of the roadway by Defendants is a trespass upon Plaintiff's property, and the requested relief is therefore necessary to prevent further injury. 56. Plaintiff has a clear right to the relief requested. 57. Plaintiff has no adequate remedy of law. 58. Unless the Defendants are restrained by this Court, the Plaintiff will suffer continual and irreparable injury in that Defendants will reconfigure and re-grade the Stormwater Easement area that benefits Plaintiff's land, and Defendants will continue to reap the benefit of its trespass upon Plaintiff's land by use of the roadway. 59. The actions of the Defendants, trespassing upon Plaintiffs property without legal right, reconfiguring and re-grading the Stormwater Easement area, to the detriment of Plaintiff's rights, are manifestly wrong. 60. Greater injury would result from this Court's refusal of an injunction than from granting it in that the Stormwater Easement area will be permanently altered and Defendants will reap the benefits of a trespass upon Plaintiffs property, whereas granting the injunction will either enforce the Plaintiffs rights or result in a delay of the Defendant's plans. 61. General equity jurisdiction is warranted. 62. The activity sought to be restrained is actionable. 63. An injunction is reasonably suited to abate the activity. 64. An injunction will maintain the status quo. 13 WHEREFORE, Plaintiff respectfully requests that this Honorable Court: a. Issue an order against the Defendants, requiring them to appear and make answer to this complaint. b. Enter an injunction, preliminary until hearing, and perpetual thereafter, restraining the Defendants, their contractors and agents, from accessing or utilizing in any manner the roadway constructed by Defendants and which trespasses upon Plaintiff's property. C. Enter an injunction, preliminary until hearing, and perpetual thereafter, restraining the Defendants, their contractors and agents, from engaging in re-grading of the Stormwater Easement area as shown on the PHICO Subdivision Plan. d. Grant such other and further relief as this Court shall deem appropriate. Count V - Breach of Easement Agreement 65. Paragraphs 1 through 64 are incorporated herein by reference as if set forth in full. 66. Plaintiff has sustained damages as a result of the Defendants' breach of the Easement Agreement, as set forth at length above. 67. Plaintiff is entitled to full use of the roadway, and is entitled to make reasonable connections to the roadway from its property in order to enjoy said full use. 68. Defendants should be required to compensate Plaintiff for the increased cost of connecting to the roadway due to the manner in which Defendants constructed the roadway. 14 69. In the alternative, Plaintiff is entitled to damages for the diminution of the value of its land, which was caused by Defendants having constructed the roadway in such a way that Plaintiff cannot make reasonable connections and have ready available access to the U D Tract, thus cutting off one section of Plaintiff's property from the other. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an order against Defendants in an amount in excess of $50,000.00, plus costs of suit, attorneys' fees and interest. Dated: 9/\-1/1o Respectfully submitted, WIX, WENGER & WEIDNER By: Step V J. Vzuranin, Esquire Attor ID No. 52653 Jeffrey C. Clark, Esquire Attorney ID No. 89277 508 North Second Street Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff F:Wd\8616 U.D. ProperUes\PHICO Property\Documents\DRAFT COMPLAINT (8-16-10 final).doc 15 VERIFICATION I, Paul Mahoney, VICE President of 4153 Management, Inc., General Partner of U D Properties, Plaintiff in the foregoing Complaint, have read the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. 4153 MANAGEMENT, INC., GENERAL PARTNER OF U D PROPERTIES: Date: ?- (a By: Paul Mahoney, VICE President EXHIBIT 1 A, IsIg lit i a 'o r r' oI, :Q nail r R ? lt w ?N w g1,?C92' 584 Q h a OI ? ? :?^ o?ryq 9l? Q1 ? ? ? ? t .4,? p? o? o o 'b 4? ocj j QWN ac ; 10 lb .. V X41., ? ? O a a o ?. z O 1?9 y0 w i f?.. M W M C U O -J Q< N y 8 0 M EXHIBIT 2 ACCESS EASEMENT AND RIGHT OF WAY THIS ACCESS EASR& NT AND RIGHT OF WAY ("Agreement") is made this 19a' day of July, 2001, by and between PHICO Realty Corporation, a Pennsylvania corporation having as office at One PHICO Drive, P.O. Box 85, Mechanicsburg, PA 17055-0085 (together with its successors and assigns, herein called "Grantor") and PHICO Insurance Company, a Pennsylvania corporation having an office at One PIiICO Drive, P.O. Box 85, Mechanicsburg, PA 17055-0085 (together with its successors and assigns, herein called "Grantee"). BACKGROUND Whereas, Grantor purchased from PHICO Group, Inc., on -August 25, 1994, seventy-four (74) acres, more or less, of land, with improvements thereon, located in Silver Spring Township, Pe..nnsylvania, as more particularly described on Exhibit A attached hereto and incorporated herein (the "Grantor Property"); and Whereas, Grantee is the current owner of that certain parcel of land with improvements and personal property thereon, adjacent to the Grantor Property and located in Silver Spring Township, Pennsylvania, as more particularly described on Exhibit B attached hereto and incorporated herein (the "Grantee's Property"); and Whereas, Grantor has agreed to grant to Grantee an irrevocable, non-exclusive, unconditional and perpetual easement and right of way, over, under and across that portion of the Grantor's Property as set forth in Exhibit C (the "Access Easement") to use for ingress, egress and regress to and from the Grantee's Property; and Whereas, Grantor and Grantee wish to memorialize their understanding by executing and recording this Agreement. NOW, TMEFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows: - 1. Grantor hereby creates, grants and conveys unto Grantee, its agents, contractors, employees, successors, assigns, invitees and licensees, a free, irrevocable, non- exclusive, unconditional and perpetual privilege, authority, easement and right of way, in, over, under and across the roadway which is designated in the Access Easement, to use for ingress, egress and regress to and from the Grantee's Property . 2. Grantee shall construct the road shown in the Access Easement at Grantee's cost and the road shall be constructed in accordance with all applicable state and municipal regulations and codes governing the same and Grantee shall obtain all necessary approvals and permits as required. 207471-1 1 3. All decisions and expenses with respect to the upgrade, maintenaner,, widening, repair, replacement and operation of the Access Easement necessary to maintain the same in good operating condition, reasonable wear and tear excepted, shall be made by Grantee in Grantee's reasonable discretion. Grantee shall be responsible for the costs to maintain, upgrade, repair, replace, widen and operate the Access Easement in good order and repair. 4. Grantee shall defend, indemnify and hold Grantor harmless from and against all claims, actions, liabilities, losses, damages and expenses whether for injury to person or damage to property, incurred by or asserted against Grantor by reason of any work done by Grantee, its agents, contractors or employees, invitees and licensees in connection with its maintenance or use of the Access Easement, unless the same is caused by the acts, omissions or negligence of Grantor or its agents, contractors or employees. 5. All notices under this Agreement shall be in writing, and shall be (i) personally delivered (including delivery by Federal Express or other private overnight courier service); or (ii) sent by certified mail, postage prepaid, return receipt requested to the following address (or such other address as the parties hereto may from time to time specify) which shall be deemed delivered on the date shown on the receipt unless delivery is refused or delayed by the addressee in which event it shall be deemed delivered on the date sent: If to Grantor: Gregory C. Boal, Vice President, Finance & Controller PIRCO Realty Corporation One PFECO Drive P.O. Box 85 Mechanicsburg, PA 17055-0085 With a copy to: Victoria A. Reider, Senior Vice President and General Counsel PHICO Realty Corporation One PHICO Drive P.O. Box 85 Mechanicsburg, PA 17055-0085 If to Grantee: Sheryl M. Simmons, Senior Vice President, Finance & Treasurer PHICO Insurance Company One PIRCO Drive P.O. Box 85 Mechanicsburg, PA 17055-0085 107471-1 2 With a copy to: Victoria A. Reider, Senior Vice President and General Counsel PHTCO lasurance Company One PHICO Drive P.O. Box 85 Mechanicsburg, PA 17055-0085 . Grantee and there are n ?o other terms, ? the entire understanding between Grantor and cban e a this obligations, covenants or conditions of any kind. Any 8 Agreement must be made in writing and executed by the parties hereto. 7. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. 8. This Agreement is intended to be recorded in the Office for the Recorder of Deeds for Cumberland County, and the Access Easement created hereby shall benefit the Grantee's Property and shall be an irrevocable and perpetual covenant running with the land, and shall bind all subsequent purchasers, transferees, successors and assigns of the parties hereto. IN WIZNESS WHEREOF, the parties have executed this Access Easement the day and Year first above written. Witness: Witness: I.,alcoworation. GRANTEE: P C nsurance Company, a P auia corporation. BY Sheryl M. Simmons, Senior Vice President, Finance & Treasurer GRANTOR: Corpora 'on, a Pennsyl BY Gregory C. Boat, Vice President, Finance & Controller L 31 io7a7z-x 3 41 COMMONWEALTH OF PENNSYLVANIA: Ss COUNTY OF CUMBERLAND On this 19' day of July, 2001, before, me, the undersigned officer, personally appeared Gregory C. Boal, who acknowledged himself to be the Vice President, Finance & Controller of PffiCO Realty Corporation, and that he, as such officer, executed the foregoing document for the purposes therein contained. IN VVITNESS WHEREOF, I have hereunto set my hand and official seal Notary Public My Commission Expires: NotwWa" M=duly 1p? MGM* P?.+?SOC?atiar•, of Notartes 107471-1 4 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUhMERLAND SS On this 191h day of July, 2001, before, me, the undersigned officer, personally appeared Sheryl M. Simmons, who acknowledged herself to be the Senior Vice President, Finance & Treasurer of PHICO Insurance Company, and that she, as such officer, executed the foregoing document for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. (1??X Notary Public My Commission Expires: No*w spRPef Seas Mya C Ady to, ?0 hd"ra'.uoA d Ndnags 107{71-1 5 . • . 61 Exhibit A Description of Grantor's Property 107471-1 KYC AEI .11 «r,y lu: 4r. IeAl 717 766 3240 PHICO SR. MGbPP. X1010 D E E D Made the ? day of _A?; a s y' 1994. BETWEEN PHICO CR=, INC . , a Pannsylvar a. corporation, with principal. offices ac One Phiea Drive, Maclumlesburg, Pemtsglvania 17055, hereinafter referred to as "Grantor" AND PHICO REALTY CORPORATION, a Fenasylvania corporation, with principal offices ac One Phico Drive, Mechanicsburg, PennsylvwdA 17055, hereinafter referred ro as "Grantee". WITNESSET4. Thar in consideration of ONE DOH ($1.00) and other good and valuable consideration, in hand paid, the receipt whereof is hereby acknowledged, the said Grantor does hereby grant and convey to the said Grantee, its successors and assigns: ALL THAT CERTAIN tract or parcel of land situate in Silver Spring Township, Cumberland County, Pennsylvania, more particularly bounded and describeed as follows, to wit: BEGINNIITG at a point on the eastern right-of-way line of State Routs 114 (HogesCown Road) at the corner of lands now or formerly of Jessie and Emma L. Myers, thence along the eastern right-of-way line of Route 114, North 24 degrees 24 minutes 30 seconds Ust a distance of 100.00 feet to a point at lands now or formerly of Willi+aa and Lauresn Bierly; thence along same South 63 degrees 52 minutes 17 seconds East, a-idistance of 217.80 fear. to an iron pin; thence, continuing along`tlarrAs now or formerly of Bierly and others, North 24 degrees 24 minutes 30 seconds East, a distance of 646.92 feet to an iron pin at the line of lot No. I on the hereinafter described subdivision plan; thence continuing along lot No. 1 the following eight courses and distances:' (1) North 72 degrees 54 minutes 30 seconds East, a. distance of 328.00 feet to a concrete monument; (2) South 65 degrees 05 minutes 30 secoxide East, a. distance of 295.00 feet to a concrete monument; (3) South 23 degrees 32 mutes 15 seconds East, a distance of 100,00 feet to a concrete morwmen,t; (4) forth 66 degrees 27 minutes 45 seconds Last, a distance of 1,089.90 feet to a concrete monument; (5) North 15 degrees 34 mi=te* 52 seconds West, a distance of 1,159.64 feet to a conarste monument; (6) Borth 2 degrees 25 minutes 20 seconds East, a distance of 409.09 feet to it concrete monument; (7) North 87 degrees 34 minutes 40 seconds West, a distance of 248.78 feet to a concrete monument; and (8) Sarth 02 degrees 40 ainutes 09 seconds East, a distance of 327.89 feet to a point on the southern right-of-way line of State Route 11 (Carlisle Pike); thence continuing along said right-of-gray eoex J14 pgdo3$ G8/11/89 WED 10:43 PAX 717 766 3240 PHICO SR. MOM - On line the following twu courses and distanoss: (1) North 02 degrees 40 Minutes 05 seconds East a distance of 30.00 feet; and (2) South 87 degrees 19 minutes 55 secoxuy East, a disrAn'ca of 618.77 feet to a point at lands view or fozmarlp of Marvin Micheal, thence continuing along same; the following three courses and dismmces: (1) South 02 degrees 40 minutes 05 seconds hest a, distance of 355.24 feet to an iron pin; (2) South 85 degrees 57 minutes 00 seconds East, a distance of 81.85 feet to a point, and (3) South 84 degrees 48 mutates 45 seconds East, a distance of 208.97 foot to an iron pipe on the western line of a thirty foot right-of-way; thence continuing along said 30 foot right-of-wary south 08 degrees= 36 minutes 00 seconds Vest, a distance of 220.14 feet to a six inch backberry tree on the southern line of a fifty foot right-of'-way; thence continuing along said right-of-map, South 84 degrees 55 minutes 00 seconds East, a distance of 823.92 feet to an iron pin at lands now or formerly of Bartholomew; thence continuing along lands o£ Baztholomlev and others, South 05 degrees 30 minutes 00 seconds Vast, a distance of 182.88 feet to an iron pin; thence North 84 degrees 15 }minutes 00 seconds West, a distance of 150.05 feet to an irqu pin; thence South 05 degrees 45 mi=tos 00 seconds West, a distance of 93.00 meet to an iron pin; thence South 17 degrees 23 minutes 40 seconds East, a dlstanoe of 100.81 feet to an iron pipe on tits nort hemline of Poplar Stra nt (vaoyonod) ; thence concirnting along saate by &Icurve to the left baving s radius of 331.46 fear, an arc length of 24.45 feet to an Iron pin; these continui0g along asme South 67 degrees 34 minutes 00 seconds West, a distance, of 217.38 feat to a spike; thence South 22 degrees 38 aainates 00 seconds East, mat distance of 183.00 fear to stn iron pin; thenco North 67 degrees 53 minutes 00 seconds Past, a distance of 167.81 feet to an iron pin; t1kenea South 22 degrec* 31 minutes 00 seconds Bast, a distance of 152483 feet to vita iron pin; theme North 67 degrees 35 minutes 00 seconds East, a distance of 13.20 feet to as iron pin; thence South 15 degrees 59 minutes 00 seconds East, a distance of 181.16 feat to an iron pin at lends now or formerly of lodger E. and Leah J. Hoke.; thence continuing along same south 67 degrees 39 mi=tres 30 seconds Vast, a distance of 1,D83-09 feet to a stone; thence coutir=ing along game Sough 67 degrees 25 minutes 45 saccnds 'Went, a distance of 438.49 feet to a stone; thence. continuing along same and lands now or formerly of Eugene H. Pottaiger, South 00 degrees 30 minutes 00 seconds West, a distance of 790.04 feet to a pipe; thence continuing along 1.sndx nov or formerly of Pottaiger aid lands now or formerly of was and, Terry Bryan, South 80 degrees 39 minutes 30 seconds West, a distance of 621.35 fact to an iron pin; thence continuing along lands now or formerly of Bryan, South 04 degrees 30 minutes 00 seconds last, a distance of 381.32 feet to an iron pin at lands now or formerly of Jessie and Ems. L. payers; thence continuing along same the fell.o+ring two courses and distances: (1) North 63 degrees 43 minutes 00 seconds West, a distance of 1,184.60 feet to an iron pin; and (2) North 63 degrees -2- Fia fin PAc?.Q39 018/:1/99 WO 10:43 PAZ 717 766 3240 PHICO SR. MM. 52 minutes 17 seconds West, a distance of 217.80 feat to a point an the eastarzn right-of-way litre of State Route 114, the point and place of SEGIuam, CONTAINING 74.336 acres. BEING shown as lot No. 2 on the Final United Suba-visian Plan Ittc__dated.Apri1_ 21,. _19.41 .and_ xxcorded. in the. .._ OffLce of the Recorder of Deeds of Cumber7snd County an July 22, 1994 at Plan Book 68 Page 61, BEING a portion of the premises which PHICO Insurance Compaxty, by its Deed dated August 6, 1993 and %%cordad in the Mica of the Recorder of Deeds of Cumberland County at Deed Book L, Volume 36, Page 526, granted and conveyed unto PHIGO Group, Inc., the Grantor herein.. AND the said Grantor Will Warrant Specially the property hereby conveyed. IN WITNESS WHEREOF, PHICO CRMP, INC., the said Grantor, has caused this Deed to be execu.ad by its duly authorized officers and its corporate seal to be affixed the day,laund year first above written. ATTEST: GRANTOR: F,AeaiT} Sec (SFAL) • gal y'71 t BC4 Jj.1U RAW FMCO GRMF, INC. By A?. Scfbi a Preai t _5 ? EE m ? -3- +- 3 CD Cl .-n c e C co M. X +t%rG:Z7 t;I7 rn C;U.? oCti .01 b CM 012 D8/11/88 SPED 10:43 FAX 717 788 3240 PHICO SR. HG3lT. ?I013 1 COMMWALTH OF PENNSYLVANIA ) SS: COMM OP M M ERLAND ) On this, the , -day of J44C.as.'t' 1994, before as, the subscriber, a Notary Public in and for said ommoawealth and County, personally appeared 11:d r g :r who acknowledged himself to be th*5tvic4 President of P=0 GROUP, INC., a Founsylvania corporation, and that he as such SIVicO Presidsiat, being authorized to do no, executed the foregoing instrument for-the purposes -therein- contaiuesd by signin&-- the name -of the -•corporati.ow-by - himself asS?Vice)" Presideeut. q, . WITNESS my hand and notarial seal the day and year aforasaid. ltri_l tiler''"n"' ••,:?? ?. Noiary Public • r,.•IY`t.??,•r•.,'?, r`! * ' My Commission Expires: (SEAL) ~ C?a,e? a M Z*45 I HEREBY.'CERTIFY that the precise address of the Grantee herein is: PH.tCO Realty Corporation .One MMCO Drive I'f hanicsburg, PA 170& i Attorney or Agent for Grantee COMOMMA= OF PEbTNSYL'nsu COMM OF CMIBERI.AND •a Recorded on this ____? day Of lAcorder's Office of the said County in Deed Book Volume ' 'rT Given under my hsod and the sesal of the said Office, the vritteu. f Recorder 4 FOR U0 MdOd _L _.? .fir#?. ii F I Exhibit B ~ Description of Grantee's Property 111 107471-1 Prepared By: ,. G?*.J2 TURNER AND O'COI?3?TEa, 258 North Street U Harrisburg, PA 17141 .OO (717) 232-4551 L? U THIS DEED Made this 14t1i day of August; 21)00; betwcen- - "- ' ` _ -- - - PMCO GROUP, INC., a Pennsylvania corporation having its principal office located at One Phico Drive, Mechanicsburg, Pennsylvania, parry of the first part, GRAN'T'OR, A N D PHICO INSURANCE COMPANY, a Pennsylvania business insurance corporation leaving its principal office located at One Phico Drive, Mechanicsburg, Pennsylvania, party of the second part, GRANTEE, WITNESSETH: that the Grantor, for and in consideration of the sum of ONE. AND N01100 ($1.00) DOLLAR, in hand paid, the receipt of which is hereby acknowledged, the said Grantor does grant and convey to the Grantee, its successors and assigns all that certain piece or parcel of land situate in Silver Spring Township, Cumberland County, Pennsylvania, more particularly bounded and described on Exhibit "A" attached hereto. AND the said Grantor will SPECIALLY WARRANT AND FOREVER DEFEND the property hereby conveyed. IN WITNESS WHEREOF, the Grantor has caused this Deed to be executed as of the day and year first written above. Attest- P CO Group, Inc. seal). Secretary rest 22 9!111.`• i?e -? t i n.:? i State of Pennsylvania County of _]&-V'h i n 13 On this the 14th day ivfffs 2000, bef a me, the undersigned officer, personally appeared f C fos t of PHICO Group, Inc., and that _he, as ch being authorized to do so, executed the oregoing Deed by signing the name of the corporation by self as In witness whereof I hereunto set my hand and notarial seal. My Commission Expires: No biic ..? , - ----------------- WNW S" DRUPhIn CA XX* ExpWm.XP. 2, I hereby certify that the precise address of the within Grantee is One Phico Drive P.O. Box 85 Mechanicsburg, PA 17055 Attomey for Grantee Z Fd ? U-4 C• o% ~t C?7 •~ 4 ig 5 n2 ?•+ r?r ? A T 8 ? D3 t ? I?'1• t1 Q O to ?• G O o '•A v io aoox to c27:?r x.33 ALL. THAT CERTAIN lot or piece of ground situate in Silver Spring Township, Cumberland County, Pennsylvania, bounded and described as follows, to wit: BEGINNWG at a point at the southeast comer of the intersection of Hogestown Road (SR 0114) and Carlisle Pike (SR 0011); thence along the southern right of way line of Carlisle Pike South 87 degrees 19 minutes 55 seconds East 254.90 feet to a point; thence by lot 2 of the below referenced plan of lots the following courses and distances: (1) South 02 degrees 40 minutes 05 seconds West 327.89 feet to a concrete monument; (2) South 87 degrees 34 minutes 40 seconds East 248.78 feet to a concrete monument; (3) South 02 degrees 25 minutes 20 seconds West 409.09 feet to a concrete monument; (4) South 15 degrees 34 minutes 52 seconds East 1159.64 feet to a concrete monument; (5) South 66 degree 02 minutes 45 seconds West 1089.90 feet to a concrete monument; (6) North 23 degrees 32 minutes 15 seconds West 100.00 feet to a c.m.; (7) North 65 degrees 05 minutes 30 seconds West 295.00 feet to a c.m.; (8) South 72 degrees 54 minutes 30 seconds West 328.00 feet to an iron pin at corner of lands now or formerly of Harry and Peter Miller; thence along said lands of Miller North 63 degrees 30 minutes 02 seconds West 114.00 feet to a point; thence continuing along said lands of Miller, North 67 degrees 15 minutes 03 seconds West 63.10 feet to an iron pin on the eastern right of way line ofHogestown Road (SR 00114); thence along said eastern right of way line of Hogestown Road the following courses and distances: (1) North 24 degrees 45 minutes 20 seconds East 82.01 feet to an iron pin; (2) North 24 degrees 45 minutes 20 seconds East 1893.63 feet to a point; (3) South 87 degrees 34 minutes 40 seconds East 20.97 feet to a point; (4) North 24 degrees 55 minutes 35 seconds East 356.10 feet to a point, the point and place of BEGINNING. BEING Lot No. I on a Final Limited Subdivision Plan for PHICO Group, Inc., dated June 14, 1994, and recorded in Plan Book 68, page 62. BEING part of the same premises which PHICO Insurance Company, by deed dated August 6, 1993, and recorded in the Cumberland County Recorder of Deed Office in Deed Boots L<36, page 526, granted and conveyed unto PHICO Group, Inc. TRACT NO.2 ALL THAT CERTAIN lot or parcel of land situate in Silver Spring Township, Cumberland County, Pennsylvania, bounded and described in accordance with a survey by Ernest J. Walker, Professional Engineer, dated February 28, 1975, as follows: BEGINNING at a point along the eastern side of Hogestown Road (PA Route 114) at the southwest corner of premises No. 718 Hogestown Road, said point also being 0.5 feet of a mile south of U.S. Route 11; thence along said premises No. 718 Hogestown Road, South 66 degrees 10 minutes 33 seconds East 62.49 feet to a point; thence continuing 14 max 227 ?„?f iy along the same, South 62 degrees 25 minutes 32 seconds East 114 feet to land now or formerly ofB lair Homes, Inc.; thence along said Ian& South 25 degrees 29 minutes West 122 feet to line of premises No. 714 Hogestown Road; thence along said premises North 62 degrees 26 minutes West 177.12 feet to a point at the east side of the aforesaid Hogestown Road (PA Route No. 114); thence along the same North 25 degrees 48 minutes East 1 I8 feet to a point, the place of BEGINNING. HAVING thereon erected a one story frame dwelling known as No. 716 Hogestown Road. BEdNG the same premises which Anna. C. Wier, widow, by deed dated August 30, 1993, and recorded in the Cumberland County Recorder of Deeds Office is Deed Book N-36, page 211, granted and conveyed unto PHICO Group, Inc. e a ?_• -Y 114- Will State of Pennsylvanial County cf Cumberlandl . Rom-read in tha office for the recording of Deads i snd fzj C?U,Mberlind County, P %.;mans my hand and sr;el of office Curtis:.-, PA this )LL _ day of 1+04 . eoolt 227 ?''?t 135 16 Exhibit C Description of Access Easement 107471-1 Va?? _ __ ___? -- _ O? ' ?i - ----- ? ? ?,, 0011 f y`-- - _ .? 9? P R O O /" « / / °? g ? , to fif 2 / ? f. rC ? ? ?/ ? ? ! 17 EXHIBIT 3 I • s ?? BYE a9 ?¢? N ? K s ? X14 fit wit eL- 4 ? B1 ^a?ti? ka ` s 3 t? DW bp¢?g 44 a a ?b 6 f? i ?i A oil EXHIBIT 4 A ? - -------------- '''''??ll?l?l?l}T}TT??}}}''{}{{}{{{ r S??y1? ? + r t t? ?._ OS {"I, \ •.1 Qy m C5 ?'?. C7Q Cd AS t! Ow °`G ?• ?.. ¢ Q ¢ T V 2 Z: 3 Z r ?. F U Z O h ?- T.7 ;, Y' ?? y •` ?,?° Z ?c, ;> b z ?. ¢ w ¢ ?' 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UY ow 11Q1.'JII13hpOOR .t!?,1( tIM "MOD p Owit j7t J 1 4I • EXHIBIT 5 v 4t M z W w C Q o r-11 °to 0 z CO Q 5 W rr f gf? ILI fl ° !t! I• if do fir! 9 'fa MR11 Milt 1`1 1 f ff Ills 1,111 11 dfi 8 8 t SAN [ milli nj ?j RIO?RA ?r Ig I I5 IN I R t Z +? t M 0 r d o? A? [? ! ? " i ? r ! ? ? ? e r r t i?" 3 e" t ?? r ? r sR R ? e • ? e ' ? "??i t ? R ? ? f Re !? tt C ? IR ¦¦ i r UUBR ???t f ? RI r Rt R -R ? [r E r ? ? ? ? g r yi t$f? r? i I•RI rare r t I i r 9 a Nil w tr l R I E t K all- s?tb'I?o881? tiu a n II WIN y I v,P,?rr?oa.n.Mw? i 6t ? t a f ' f? ?? t a bra ?? ? ? „ 1 x+1 OI 17J1 I I i I,oPi?J?? I?1 1111! I J III ?? SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff i, `sfFlE - c F.iFF BLED- Ft ICE . r 'fh'' -TAPY ' rr?l t 'Q SEP -9 AM $? 43 Jody S Smith Chief Deputy Richard W Stewart Solicitor 4153 Management, Inc. V& Norman K.A. Hoffer (et al.) PEN? Case Number 2010-5430 SHERIFF'S RETURN OF SERVICE 08/25/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Norman K.A. Hoffer, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 08/25/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Matthew D. Hoffer, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 08/31/2010 05:27 PM - Dauphin County Return: And now August 31, 2010 at 1727 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Matthew D. Hoffer by making known unto Norman K.A. Hoffer, Brother of defendant at 4479 Chambers Hill Road, Harrisburg, PA 17111 its contents and at the same time handing to him personally the said true and correct copy of the same. 08/31/2010 05:27 PM - Dauphin County Return: And now August 31, 2010 at 1727 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Norman K.A. Hoffer by making known unto himself personally, at 4479 Chambers Hill Road, Harrisburg, PA 17111 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $53.00 September 07, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF i.ci GoontySuite She?fl. Te,aoso`t, Inc:. cmfitt of the'*4criff Mary Jane Snyder Real Estate Depu William T. Tully Solicitor Ak Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin 4153 MANAGEMENT INC. VS MATTHEW D HOFFER Sheriff s Return No. 2010-T-2890 And now: AUGUST 31, 2010 at 5:28:00 PM served the within COMPLAINT upon NORMAN K.A. HOFFER by personally handing to NORMAN K.A. HOFFER 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at 4479 CHAMBERS HILL ROAD HARRISBURG PA 17111 )6-P Deputy: G MILLER Plaintiff. 4153 MANAGEMENT INC. Sheriffs Costs: $66.5 8/31/2010 Out Of County Cost: So Answers, Sheriff of Dauphin County, Pa. Swom to and before me this ?)Q?k JANUARY, 20 Zt?...?. (ptlict of the ?Wjvrfff Mary Jane Snyder Real Estate Deputy William. T. Tully SOkitOr r Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin 4153 MANAGEMENT INC. VS MATTHEW D HOFFER Sheriff s Return No. 2010-T-2890 And now: AUGUST 31, 2010 at 5:28:00 PM served the within COMPLAINT upon MATTHEW D HOFFER by personally handing to NORMAN HOFFER 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at 4479 CHAMBERS HIL ROAD HARRISBURG PA 17111 OTHER COUNTY CASE # 20105430 BROTHER OF MATTHEW So Answers, Deputy: G MILLER Plaintiff. 4153 MANAGEMENT INC. Sheriffs Costs: $66.5 8/31/2010 Out Of County Cost: /C- Sheriff of Dauphin County, Pa. Sworn to and subscribed before me this day'o M r D PR ONOTARY DAUPHIN UNTY C MISSION EXPIRES IST MONDAY JANUARY, 20_ Li IN THE COURT OF COMMON PLEAS O>~' ~~~ PP®' ~~~~~ ~~~~ CUMBERLAND COUNTY, PENNSYLVANI~~~ ~~ ~ _ ~ P~ h: ~ 4153 MANAGEMENT, INC., trading as U D PROPERTIES, Plaintiffs, v. NORMAN K A HOFFER and MATTHEW D. HOFFER, trading as 114 ASSOCIATES, Defendants ~;l1~S~ER1_h~t~ CQi!!dT'~ No. 2010-5430 CIVIL ACTION - LAW/EQUITY JURY TRIAL DEMANDED NOTICE TO PLEAD TO: 4153 MANAGEMENT, INC. trading as U D PROPERTIES: You are hereby notified to file a written response to the within New Matter within twenty (20) days of service upon you or a judgment may be entered against you. Respectfully submitted, i Victor P. ile, Esq. Attorney Id. No. 37449 Dilworth Paxson LLP 112 Market Street, 8~' Floor Harrisburg, PA 17101 Dated: October 1, 2010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 4153 MANAGEMENT, INC., trading as U D PROPERTIES, Plaintiffs, No. 2010-5430 v. . NORMAN K A HOFFER and MATTHEW D. HOFFER, CIVIL ACTION - LAW/EQUITY trading as 114 ASSOCIATES, . JURY TRIAL DEMANDED Defendants DEFENDANTS' ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT And Now, comes the Defendants Norman K.A. Hoffer and Matthew D. Hoffer, trading as 114 Associates (the "Defendants" or "Associates") and files the following Answer and New Matter to the Plaintiff s Complaint in the above matter as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Denied as a legal conclusion requiring no response. 4. Denied as a legal conclusion requiring no response. 5. Admitted. 6. Admitted. 7. Admitted and denied. Admitted Associates is the fee simple title owner of the two pieces of real estate identified in this paragraph under deeds dated December 23, 2004 and January 24, 2008, which documents speak for themselves. Denied as to the other identifying information. 8. Admitted upon information and belief. 9. Admitted that prior to 2001 PHICO Insurance Company occupied a large office building known then as the PHICO Building on the 114 Associates tract of approximately 220,000 sq. ft. All remaining averments are denied in that Defendants are without sufficient information or knowledge to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 10. Admitted the UD Tract is adjacent to the 114 Associates Tract. Defendants are unable to admit or deny the accuracy of the sketch attached as Exhibit 1 to the Complaint, as the draftsman is not identified and Defendants have no way of authenticating the attached document. Defendants admit in a general sense that the exhibit illustrates the orientation of the tracts. All remaining averments are denied. 11. Admitted and denied. Admitted that on July 19 2001 PHICO Realty Corporation granted unto PHICO Insurance Company a free, irrevocable non-exclusive, unconditional and perpetual privilege, authority, easement and right of way, in over, under and across the roadway designated in the Access Easement as that is defined in the Access Easement and Right of Way agreement executed between those parties as of July 19, 2001, which in part was for the purpose of constructing a road to provide ingress, egress and regress to the Grantee's property. All remaining averments are denied in that the "Easement Agreement" is a document that speaks for itself. 12. Denied. Paragraph 8 of the Easement Agreement did not require the Easement Agreement to be recorded, but rather only indicated that the "Agreement is intended to be recorded in the Office for the Recorder of Deeds for Cumberland County". It further is specifically denied that the Easement Agreement was never recorded. To the contrary, the original executed copy of the easement Agreement was recorded in the Office for the Recorder of Deeds for Cumberland County on September 1, 2010. All remaining averments are denied in that the Easement Agreement is a document that speaks for itself. 13. Denied in that the Easement Agreement and the plan attached thereto are documents which speak for themselves. To the extent any further response is required, these averments as characterized and stated by Plaintiff are denied. 14. Admitted and denied. Admitted that Associates is a real estate developer and that on or about April 29, 2010 Associates secured the necessary permit from Silver Spring Township to commence construction of the road. It is specifically denied that construction of the road was not in accord with the uses permitted under the Easement Agreement. It also is denied that Plaintiff was not provided notice of Associates intention to construct the road. All remaining averments re also denied as stated by Plaintiff. 15. Admitted and denied. (a) Admitted end and head walls were constructed for the storm water facility constructed at the direction of and approval of Silver Spring Township. Denied any construction was outside those areas granted expressly or by necessary implication under the Easement Agreement; (b) admitted that all necessary construction vehicles entered the property as permitted expressly or by necessary implication to construct the road. Denied that this was done without notice to Plaintiff; (c) Denied. To the contrary, the road was constructed as expressly permitted or as permitted by necessary implication in accord with the Easement Agreement and in accord with prudent and necessary engineering judgment as required by and approved by all applicable state, local and municipal regulations and codes all without any cost to Plaintiff and in such a manner so as to improve and increase the value of Plaintiff s tract. It further is expressly denied that Associates acted in any manner that could be considered reckless or in intentional or willful disregard of any of Plaintiff's rights. To the contrary, it is Plaintiff that has acted at times to intentionally interfere or otherwise attempt to obstruct Associates lawful exercise of t he easement rights granted it under the Easement Agreement. 16. Denied and denied as legal conclusions requiring no response. 17. Denied the roadway was constructed outside of the Easement Area, or that it impairs Plaintiffs access to the Easement Area or diminishes in any way the value of the UD Tract in any manner inconsistent with the Easement Agreement. 18. Denied that Associates committed any trespass upon the Plaintiff s property. To the contrary, Associates operated at all times to construct the roadway as permitted expressly or by necessary implication under the Easement Agreement. Associates further is unable to admit or deny the illegible sketch attached as Exhibit 3 as Associates is without sufficient information to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 19. Denied. The roadway was constructed in accord with prudent and necessary engineering judgment as required by and approved by all applicable state, local and municipal regulations and codes and in such a manner so as to improve and increase the value and use of Plaintiff's tract. Plaintiff s averments that the roadway was constructed at an elevation intentionally and significantly higher than surrounding property so as to be in bad faith demonstrates bad faith in these proceedings by Plaintiff. Plaintiff's averments would assume that Associates constructed its roadway in a manner also detrimental to itself so as to harm the Plaintiff, a suggestion ridiculous on its face. Further, it is averred the roadway was in fact constructed at elevations most conservative to the property conditions that would meet approval of all prudent and necessary engineering judgment and all applicable state, local and municipal regulations and codes. 20. Denied. Associates entry upon and construction of the roadway was as expressly contemplated under or as permitted by necessary implication under the Easement Agreement. All remaining averments are denied. 21. Admitted that the referred "PHICO Subdivision Plan" is a document that speaks for itself. All remaining averments are denied as legal conclusions requiring no response. 22. Denied as legal conclusions requiring no response. 23. Admitted that Associates has submitted and has had approved a Preliminary Land Development Plan dated January 15, 2009, which document speaks for itself. 24. Admitted. 25. Denied. Byway of answer, Associates incorporates the approved plan by reference which plan is a document that speaks for itself. 26. Admitted that Associates continues to perform certain land development activity upon its tract as permitted, inter alia, by law, its deeds and granted easements all of which is not in derogation of any of Plaintiff s property rights. 27. Denied as legal conclusions requiring no response. 28. Denied. Associates secured all necessary permits for the construction. 29. Denied that Associates made use of any "unauthorized encroachments". All remaining averments are denied as legal conclusions requiring no response. 30. Denied. To the contrary, Plaintiff alternatively pleading the provision of false information evidences the baseless merit of its suit. 31. Denied and denied as legal conclusions requiring no response. 32. Denied that the construction creates any drainage conditions not expressly permitted or permitted by necessazy implication under the Easement Agreement. All remaining averments are denied as legal conclusions requiring no response. 33. Denied. 34. Denied, and as to any claimed injury, Associates is without sufficient information to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. COUNT I -TRESPASS 35. By way of response Associates incorporates its responses to paragraphs 1 through 34 as though the same were fully set forth herein at length. 36. Denied as stated. Associates authorized its representatives or contractors to enter the property to construct the roadway as expressly permitted by or as permitted by necessary implication under the Easement Agreement. 37. Denied Associates exceeded any limitations under the Easement Agreement and denied as legal conclusions requiring no response. 38. Denied as legal conclusions requiring no response. Denied further in that the Easement Agreement grants unto Associates anon-exclusive and unconditional right of way as more fully provided for under that agreement.. 39. Denied and denied as legal conclusions requiring no response. 40. Denied in that after reasonable investigation, Associates is without sufficient information to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 41. Denied. 42. Denied and denied as legal conclusians requiring no response. WHEREFORE, Associates demands that judgment be entered in its favor and against Plaintiff, together with all allowable costs and such other and further relief as deemed appropriate by this Court. COUNT II -DECLARATORY JUDGMENT 43. By way of response Associates incorporates its responses to paragraphs 1 through 42 as thought the same were fully set forth herein at length. 44. Denied as legal conclusions requiring no response. By way of further answer Associates responds as follows: (a) Denied. The Easement Agreement has been recorded; (b) Denied and denied as legal conclusions requiring no response; (c) Denied and denied as legal conclusions requiring no response. 45. Denied. Associates secured all necessary permits for the construction. By way of further response, Associates responds as follows: (a) Denied and denied in that all necessary permits were obtained; (b} Denied and denied as legal conclusions requiring no response; (c) Denied in that the roadway was constructed in accord with the Easement Agreement and denied further as legal conclusions requiring no response. 46. Denied. The constructed roadway is precisely what is permitted under the Easement Agreement; that being for ingress, egress and regress onto Associates property. All remaining averments are denied as legal conclusions requiring no response. 47. Denied as legal conclusions requiring no response. 48. Denied and denied in that any such "statements and actions" are not defined under this paragraph. Therefore, Associates is without sufficient information to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. WHEREFORE, Associates demands that judgment be entered in its favor and against Plaintiff, together with all allowable costs and such other and further relief as deemed appropriate by this Court. COUNT III -EJECTMENT 49. By way of response Associates incorporates its responses to paragraphs 1 through 48 as though the same were fully set forth herein at length. 50. Denied Associates has refused Plaintiff access to the roadway. All remaining averments are denied as legal conclusions requiring no response. 51. Denied as legal conclusions requiring no response. 52. Denied as legal conclusions requiring no response. WHEREFORE, Associates demands that judgment be entered in its favor and against Plaintiff, together with all allowable costs and such other and further relief as deemed appropriate by this Court. COUNT IV -PRELIMINARY AND PERMANENT INJUNCTION 53. By way of response Associates incorporates its responses to paragraphs 1 through 48 as thought the same were fully set forth herein at length. 54. Denied that Associates is planning to extensively re-grade the Easement Area, in that construction of the roadway in the Easement Area is complete. Also denied Plaintiff will be denied use of any drainage easements provided for, if any, under the PHICO Subdivision Plan. All remaining averments are denied as legal conclusions requiring no response. 55. Denied. The constructed roadway is located in the area contemplated in and as authorized under the Easement Agreement expressly or by necessary implication and for all uses permitted under the Easement Agreement. All remaining averments are denied as legal conclusions requiring no response. 56. Denied as legal conclusions requiring no response. 57. Denied as legal conclusions requiring no response. 58. Denied Plaintiff will be denied any drainage easement rights to which it may be entitled. To the contrary, the roadway and storm water facilities constructed in connection with the roadway as required by state and municipal regulations and codes continue to provide for drainage on the property. All remaining averments are denied as legal conclusions requiring no response. 59. Denied as legal conclusions requiring no response. 60. Denied. The greater injury would be to further delay and deny Associates the legal right to use the easement granted, deny it the use of the easement granted to access its property and cause other and further interference with its property rights. To the contrary, Plaintiff is an absent owner with no current plans or construction on its unimproved parcel. All remaining averments are denied as legal conclusions requiring no response. 61. Denied as legal conclusions requiring no response. 62. Denied as legal conclusions requiring no response. 63. Denied as legal conclusions requiring no response. 64. Denied in that the status quo is the current use of the constructed roadway, Any injunction granted would preclude Associates from the use of its property and preclude it from all rights granted it under the Easement Agreement. All remaining averments are denied as legal conclusians requiring no response. WHEREFORE, Associates demands that judgment be entered in its favor and against Plaintiff, together with all allowable costs and such other and further relief as deemed appropriate by this Court. COUNT V -BREACH OF EASEMENT AGREEMENT 65. By way of response Associates incorporates its responses to paragraphs 1 through 64 as thought the same were fully set forth herein at length. 66. Denied in that after reasonable investigation, Associates is without sufficient information to form a belief as to the truth of these averments and strict proof thereof is demanded at time of trial. 67. Denied as legal conclusions requiring no response. b8. Denied as legal conclusions requiring no response. 69. Denied as legal conclusions requiring no response. By way of further response, Associates has constructed the roadway as provided by and permitted under the Easement Agreement.. WHEREFORE, Associates demands that judgment be entered in its favor and against Plaintiff, together with all allowable costs and such other and further relief as deemed appropriate by this Court. NEW MATTER 70. By way of response Associates incorporates its responses to paragraphs 1 through 69 as thought the same were fully set forth herein at length. 71. Plaintiff fails to state any claims for which they may be entitled to any legal or equitable relief. 72. Attached hereto as Exhibit A is a copy of the deed for the UD Tract referred to in Plaintiff s complaint at paragraph 5 which Plaintiff did not attach to its complaint. 73. Exhibit A expressly provides that the UD Tract is "Subject to the Access Easement and Right of Way dated July 19, 2001 between PHICO Realty Corporation, the Grantor herein, and PHICO Insurance Company, which is not recorded". 74. Plaintiff had written actual and constructive knowledge of the Easement Agreement at the time it purchased the UD Tract. 75. The original Easement Agreement was recorded with Recorder of Deeds for Cumberland County on September 1, 2010. 76. Attached hereto as Exhibit B is a copy of the recorded Easement Agreement filed with the Recorder of Deeds for Cumberland County on September 1, 2010. 7?. The Easement Agreement continues in full force and effect. 78. The Easement Agreement conveys unto the Grantee at paragraph 1 and its ... "contractors ... a free, irrevocable, non-exclusive, unconditional and perpetual privilege, authority, easement and right of way, in, over, under and across the roadway which is designated in the Access Easement..." 79. The Easement Agreement provides at paragraph 2 the Grantee "shall construct the road shown in the Access Easement ... in accordance with applicable state and municipal regulations and codes governing the same..." 80. The Easement Agreement provides at paragraph 8 that it "shall be an irrevocable and perpetual covenant running with the land, and shall bind all subsequent purchasers, transferees, successors and assigns of the parties hereto." 81. The Easement Agreement conveys unto the Grantee, and hence Associates, all rights necessary for the reasonable and proper enjoyment of the thing granted. 82. The roadway constructed by Associates was done so in accord with the Easement Agreement. 83. Any of Plaintiff s property that was used during construction of the roadway was done under the authority granted under the Easement Agreement in order for Associates to enjoy all rights necessary for the reasonable and proper enjoyment of the thing granted. 84. The PHICO Subdivision Plan granted the referenced drainage easement in favor of Associates property NOT the Plaintiff's property. 85. Any reconstruction or diversion of storm water from the Plaintiff's property through the storm water facilities constructed by Associates was done as necessary for the easement granted and in accord with state and municipal regulations and codes in the manner most considerate of the property rights of all parties. 86. Associates construction of storm water facilities in connection with the roadway does not deprive Plaintiff's property of any drainage rights. 87. Plaintiff can state no action at law as it has not suffered any damages as a result of Associates actions. 88. Plaintiff can state no action at equity as it does not possess clean hands. 89. Plaintiff had written and actual notice of Associates proposed construction of the roadway before it was built. 90. Plaintiff is guilty of latches. 91. Plaintiff is estopped form asserting any of its claims. 92. Associates had the right to rely on all permits issued by municipal and state authorities in connection with its land development plan and construction of the roadway. 93. Associates can not be found to have committed any trespass, as it at all times acted consistent with the Easement Agreement. 94. Plaintiff is not entitled to any preliminary or permanent injunctive relief. 95. Plaintiff can demonstrate no clear right to relief in equity. 96. Plaintiff cannot establish any immediate or irreparable harm as a result of any of the actions complained of in its complaint. 97. Greater injury would occur to Associates than to Plaintiff if any of the preliminary or permanent injunctive relief were to be granted by the Court. 98. Plaintiff is in breach of the Easement Agreement by attempting through this action and otherwise to preclude Associates from utilizing and enjoying the easement and right of way granted it under the Easement Agreement. 99. To the extent any of the actions complained of by Plaintiff are not expressly granted unto Associates by the Easement Agreement, Associates possesses such rights by implication. 100. To the extent Plaintiff claims the easement granted is extinguished, which claim is expressly denied, Plaintiff fails to state any claim in this regard, in particular because the written easement expressly and irrevocably grants Associates the easement and right of way in perpetuity. WHEREFORE, Associates demands that judgment be entered in its favor and against Plaintiff, together with all allowable costs and such other and further relief as deemed appropriate by this Court. 112 Market Street, 8th Floor Harrisburg, PA 17101 Dated: October 1, 2010 Attorney Id. No. 37449 Dilworth Paxson LLP I do hereby affirm that the averments is the foregoing are true and correct to the best of my knowledge, information and belief and further state that false statements herein are made subject to the penalties oft 8 Pa. C.S. §4904 relating to unsworn falsification to authorities. Norman K.A. Hoffer ,~ nGP~RT r"-. ~li:Gl.~R `tf~GuR?':i', Jr REEDS ~`~ ~';~~ 7 ~'(`1 1 y0 Tax Parcel No:. 3&0?-44S4-0S4 38-i9~1612-Q39 1VIADE as of the ~ay ot~~-~_, zoos BETWEEN ~,~C ~~ PHIC4 Realty Corporatloy a Pe-uwsylvania corporation (hareiaeBar inferred to as "Grantor"}, i~~7 UD Properties, a Pennsylvania limited partnership (hereinafter referred to as "Gcantee'~. NOW THIS INDTi,NTUBE'WITNESSETH, that Qraator for and in consideration of the sum of Four Nfilliozt Five Hundred Thonsaad Dollars (S4,S00,000.00), hwful money of the United States, to it in head paid by ©rantee at or before the scaling and delivery horeoi; the receipt whereof is hereby acl~aawlodged, has granted, bargained, sold, slimed, released sad confurned, and by these presents does giant, bargain, sell, alien, release and confirm utrZo the said Grantee, its successors and assigns: AT.L those certain tracts m pareels of land situate in Silver Spring Township, • Cumberland County. Pennsylvania, mote psrticularly descn'bed on Bxhibit A . aitachod heinto and made a past hereof TRACT' 1 BEING the same Property which PHICO Group, lnc. conveyed to Gzantor hereaa by Deed dated August 25,1994 and recorded in the Office of the Recorder of Deeds of Cumberland County, Peruasylvaaia, at Deed Book Volume 110, Page 1038. -;i:< TRACT 2 BEING the same Property which William NL Bierly sad I,aurear Bierly, husband end wife, conveyed to Grantor herein by Deed dated April 10, 2000 a~ recorded in the Office of the Recorder of Deeds of GStmberlaad County, Pennsylvania, at Deed Book Volume 219, Page 178. TOGETHER with all and singular buildings, improvements, ways, waters, water . - courses, rights, h'beriies, privileges, heroditameats and sppu whatsoever thereunto belonging, or in any ways appertaining, and the reversions and reiuaiaders, Testa, issues and proSts thereof; and also all the estate, right, title interest, use, trust, property, possession. claim and demand whatsoever of the Grantor, its successors and assigns, in law, equity, or oWerwise, howsoever, if, in, to or out of the aannc, and evcry+part thereof. SUBJECT to all zoning regulations, ordinances, reservations, historic preaervatiott restrictions, privileges or rights of public service companies, easements and restrictions of record or visible by inspcctioa. soon 2~2 ~~rE~523 SUBJECT to tho Across Easement and Riga of ~iVay dated July 19, 2001 between PHICO Realty Corporation, the Grantor herein, mad PHIt'X? ~naurance Company, which is not recot+ded. TO HAVE AND TO BOLD the acid described hereditaments and the pranises heroby granted and released, or mentioned and intaadsd so to be, with the sppac~teuances, u~o Grantee, its sucxe:sors and assigns, FOREVER. MID Qrantar does covenant, promise sad agree, to and with Grantees its snccecaora and assigns, by those preaGnts, that Grantor. will WARRANT SPECIALLY the property herrby conveyed. -~' ~_ -~~~~ a~3~~~~ ~ ~ ~ ~ ~ ~~ d ~z ''t3 -e is -~ ~" o., ~. ~ ~ ~ .-.~ ~~ep- ' 7 ~ J t71 r% ? r;~ ~ a MM c~ r+1j~pi ,~{a,,/{ rv c+~ .C .0. ppO ~~~11 4d Ntt ~ V pO ~pp .~pp ~ W ~ 0~ 6 p~ p~~ 4 Q g 4 Q 900!( i~Gi~ ~AGE~$;Z~ IIN W1TNE33 WHEREOF, said Gzantor has executed these presents on the day and year first above writta~n. }`~'vl ~/~ ~. Witness COUNTY OF ~u-~I~.r,_ h COMMONWEALTH OF PENNSYLVANIA PSICO REALTY CORPORATION Hy; ~ ~ ~l.tti Name: 4l Title: SS: On this day ~ of 2004, before me, the jmdeiaigned officer, personally appeared F who aclmowlodged himselt7heraelf to be ('i~a; Y ma n of PHICO Realty Corporation, sad as such J~a ~ r a r} being authorized to do so, exearted tlu famegoing instrument for the purpascs there in oo~ined by sigain~g the~ama ofthecorporation by himself/lteraelf as such Cha i rm ~ vi FSS WHEREOF, T ha~auato set my head sad of6aial seat. Notary Public (SEAT.) Expires: ! D ~ 2q j ~ ~' d~ x rtonry s~ ~.. ~ cougr CFRTIFlCAT~ OF a T, ~~~' L address of the Ciraatee here °Jo ~tu! L, /hw~~e~ S C ~= ~~ gooK 262 P~c~4525 ~n~-i- YXRISIT A PmPB1tTY DBSCRYPTION fLL Tfi1? 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BEIDifi TAX PABCEL NIiiBERt 36-07-0459-034 .,., .r. ~.r1' '1 . 1-LL TJfRT Ce~~le t O: p~1"Nl O! 1 aad ps+salNi, i3tuats l iitd baiaq is~ ~+.. o! a3z`vpc opxi~~•tbo oar ~t ct~a0asr~+ua~ ~+o~oaarialtb of Pint~Yirapia, tttes~a paekienslaxly bataadid atkt driaeibad U ae ~ ~ at a point iA tl~u oattar liar of Cbi . Nica3nnR-eladoseaat ~id at oarwr o! lead bor ~ losrrlY of eloi and ~arae ono. his rritar t~N alor~ tbs eantrr liw of a~ii~R~Nd Yorth s5 _ !s ~toi 100 lsit to polat~ oorMpe o~ i aar toAMt}}Y of ~~ttii11p ~~ ind Laait lral~. has ~to~• CeNSae ~=d sro~r yr f4N~iy Ol ~A113p ers! aid Liisb~Yr! ~. hii Mili ~h q 6 ~ zs ~iriplaar o !ch°i~r~lys i ~i. ;lsad~ia ~! wriittsirNaio boa= ~st to .a ~scn •!~~oai~ i aoM as. • i ~11iR! 2 Z, i !i~`rt .two aspo ia~~tbi~e~wta ~ri~~o~ `f 1. dpraas ~ -Ro~iito~ni eead, teM p~aa. ~, qa . BEING TAX pA1GCEL liUi~ERt 38-19-1612-0~9 I Certify this to be recorded Tn Cumberland County pA . • .; . ~~ -; i, , ,,,~ Boor 2fi2 PArE~52'7 '~ 3`6 y 9-0 _ ~P -.~1' r ACCESS EASEMENT AND RIGHT OF wAY ~~OHYO THIS ACCESS EASEMENT AND RIGHT OF WAY ("Agreement") is made this 19~' day of July, 2001, by and between PHICO Realty Corporation, a Pennsylvania corporation having an office at One PHICO Drive, P.O. Box 85, Mechanicsburg, PA 17055-0085 (together with its successors and assigns, herein called "Grantor") and PHICO Insurance Company, a Pennsylvania corporation having an office at One PHICO Drive, P.O. Box 85, Mechanicsburg, PA 17055-0085 (together with its successors and assigns, herein called "Grantee"). BACKGROUND Whereas, Grantor purchased. from PHICO Group, Inc., on August 25, 1994, seventy-four (74) acres, more or less, of Land, with improvements thereon, located in Silver Spring Township, Pennsylvania, as more particularly described on Exhibit A attached hereto and incorporated herein (the "Grantor Property"); and Whereas, Grantee is the current owner of that certain parcel of land with improvements and personal property thereon, adjacent to the Grantor Property and located in Silver Spring Township, Pennsylvania, as more particularly described on Exhibit B attached hereto and incorporated herein (the "Grantee's Property"); and Whereas, Grantor has agreed to grant to Grantee an irrevocable, non-exclusive, unconditional and perpetual easement and right of way, over, under and across that portion of the Grantor's Property as set forth in Exhibit C (the "Access Easement") to use for ingress, egress and regress to and from the Grantee's Properly; and Whereas, Grantor and Grantee wish to memorialize their understanding by executing and recording this Agreement. NOW, TNF.RF.FORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby aclaiowledged, and intending to be legally bound hereby, the parties hereto agree as follows: 1. Grantor hereby creates, grants and conveys unto Grantee, its agents, contractors, employees, successors, assigns, invitees and licensees, a free, irrevocable, non- exclusive, unconditional and perpetual privilege, authority, easement and right of way, in, over, under and across the roadway which is designated in the Access Easement, to use for ingress, egress and regress to and from the Grantee's Property. 2. Grantee shall construct the road shown in the Access Easement at Grantee's cost and the road shall be constructed in accordance with aIl applicable state and municipal regulations and codes governing the same and Grantee shall obtain all necessary approvals and permits as required. 3. All decisions and expenses with respect to the upgrade, maintenance, widening, repair, replacement and operation of the Access Easement necessary to maintain the same in good operating condition, reasonable wear and tear excepted, shall be made by Grantee in Grantee's reasonable discretion. Grantee shall be responsible for the costs to maintain, upgrade, repair, replace, widen and operate the Access Easement in good order and repair. 4. Grantee shall defend, indemnify and hold Grantor harmless from and against aIl claims, actions, liabilities, losses, damages and expenses whether for injury to person or damage to property, incurred by or asserted against Grantor by reason of any work done by Crrantee, its agents, contractors or employees, invitees and licensees in co~mection with its maintenance ar use of the Access Easement, unless the same is caused by the acts, omissions or negligence of Gratator or its agents, contractors or employees. 5. All notices under this Agreement shall be in writing, and shall be (i) personally delivered (including delivery by Federal Express or other private overnight courier service); or {ii) sent by certified mail, postage prepaid, return receipt requested to the following address (or such other address as the parties hereto xnay from time to time specify) which shall be deemed delivered on the date shown on the receipt unless delivery is refused or delayed by the addressee in which event it shall be deemed delivered on the date sent: If to Grantor: Gregory C. Boal, Vice President, Finance & Controller PHICO Realty Corporation One PHICO Drive P.O. Box 85 Mechanicsburg, PA 17055-0085 With a copy to: Victoria A. Reider, Senior Vice President and General Counsel PHICO Realty Corporation One PHICO Drive P.O. Box 85 Mechanicsburg, PA 17055-0085 If to Grantee: Sheryl M. Simmons, Senior Vice President, Finance & Treasurer PHICO Insurance Company One PHICO Drive P.O. Box 85 Mechanicsburg, PA 17055-0085 io~a~i-s 2 With a copy to: Victoria A. Reider, Senior Vice President and General Counsel PHICO Insurance Company One PHICO Drive P.O. Box $5 Mechanicsburg, PA 17055-0085 6. This Agreement contains the entire understanding between Grantor and Grantee and there are no other terms, obligations, covenants or conditions of any kind. Any changes to this Agreement must be made in writing and executed by the parties hereto. 7. This Agreement shall be interpreted, construed and enforced in accordance with the Iaws of the Commonwealth of Pennsylvania. 8. This Agreement is intended to be recorded in the Office for the Recorder of Deeds for Cumberland County, and the Access Easement created hereby shall benefit the Grantee's Property and shall be an irrevocable and perpetual covenant running with the land, and shall bind alI subsequent purchasers, transferees, successors and assigns of the parties hereto. IN WITNESS WHEREOF, the parties have executed this Access Easement the day and year first above written. Witness: Witness: ..,,LANTEE: PHIC nsurance Company, a Penns ania corporation. By Sheryl M. Simmons, Senior Vice President, Finance & Treasurer GRANTOR: ealty Corpor 'on, a Pennsyl 'a corporation. By Gregory C. Boal, Vice President, Finance & Controller COMMONWEALTH OF PENNSYLVANIA: COUNTY OF C[JMBERLAND SS On this l9~ day of July, 2001, before, me, the undersigned officer, personally appeazed Gregory C. Boal, who aclmowledged himself to be the Vice President, Finance & Controller of PHICO Realty Corporation, and that he, as such officer, executed the foregoing document for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public My Con~ission Expires: Ch~istlne I~VOtary Punic Silver 3pdng Twp., Cumbarlsnd only My Cammiseior- Explrgi July 70200:3 Mamber, Per~r~sylvanla Aesoaat(on of Not8d8e 107471-1 4 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SS On this 19~ day of July, 2001, before, me, the undersigned officer, personally appeared Sheryl M. Simmons, who aclmowledged herself to be the Senior Vice President, Finance & Treasurer of PffiCO Insurance Company, and that she, as such officer, executed the foregoing document for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. '~ Notary Public My Commission Expires: M re~r~~,~lCessefs~c ~~,as,~y ~o, ~O "~°R'~' P°'~.assoaeaop a Notaries io~a~i-i 5 08./21/99 WED 10:42 FA% T17 766 3P40 PHICO SR. MGRT. ~ ~ 010 h. n. • 'r ~~~~~ ~~~~~ DLED Hale the o~~ ~ day of Ag7g„~ s ~ 1994. BETStEEN PSICO GRflIIF, INC.. a Pennsylvania catpo=anon. with ptincipal offices at One Phico Drive, Mechanicsburg, Pennsylvania 17055, hereix~sftar referred to as "Grantor" PHICO BF.ALTX CQRpORA~ON, a Pennsylvania catporation, with principal offices at One Phico Drive, Mechanicsburg, Pennsylvania 17055, hereinafter referred zo as "Qrantae". WiTNESSETB, That in Corisidexation, oi' ONE DO~sR ($1.00) a~ad ether ggad and valuably consideration, in hand paid, the receipt oPFi~taaf is hereby acknowledged, thR said Grantor does hereby grant and convey to the said Grantee, irs successors and, assigns: ALL THAT CERTAIN tract or parcel of land situate is Silver Spring Township, Cu~pberlarcid County, Pemusylvania, more particularly bounded and described as follows, to wit: BEGINNING .fit a point on the eastern Might-of-way line of State Routs ll4 (HogesGos~n 3toad) at rho corner of lands aav~ or formerly of Jessie and Emma L. Idyets, thence along the eastet'a right-of-gray lice of Route 114, North 24 degrees 24 miztutes 30 aecarsds East x distance aE 100.00 feat to a point at lands now or fozawrly oP 4i£Iliam and Canteen Bietlp; themes along, same Sout,.h 63 dQgraes 52 ainutes 17 seconds Bast, a~dista,ace of 217.60 feet to as iron pin; thence, continuing aloag~Iaads now or formerly of Bierly and others, Dtorth 24 degrees 24 minutes 30 sacands East, a distance of 646.92 feat to en iron pin at the line of toe No. I opt flea hsraimafter described subdivision plea; thence continuing along lot No. I the fo~.lowing eight courses and distances: (1) North 7Z degrees 54 minute: 30 seconds East, a distance of 328.00 feat to a contrary noaesment; (2) South b5 degrees 05 minutes 30 seaot~ds East, a distance of 295.00 feet to a concxetR awnument; (3) South 23 degrees 32 rairnttes 15 avaonds East, a distance of 100,00 feet to a concrete monument; (4) North b6 degrees 27 minutes 45 s'sconds Bast, a distance of 1,089.90 feat to a concrete monument; jS) North IS degrees 34 m7.ntxLei+ 52 seconds Wass, a distance of 1,155.64 feet zo a concrete moaiuneint; (6) North 2 degrees 25 minutes 20 secanda East, a distance of 409.04 fe4t to a aoaarats monument; j7) North $7 degrees 34 mi:altes 40 seconds WesC, a distance of 248.78 feet to a coz~,crete monument; sad (8) North 02 degrees 4D minutes 05 seconds East, a d3.staaaQ of 327.89 feet to a point oa the southern z'ight-of-way iitu- of State Route 11 (Carlisle Pike); thence continuing along said right-af-way - 1 - 8O~x ~3Q PAC~~Q~~.$ 08/il/98 WED 10:43 FAX 717 786 3240 PgICO SR. YGltT. lino the following cmo aoursas sad disteacar: (1) North 02 degrees 60 minutes 05 sacvnds East a distance of 30.00 feet; and (Z) south 87 degrees I9 raiautss 55 secot~d.s Bast, a distaaca of 618.77 £aet to a point at Lauds uo,a or formaxlp of Marvin l~tichsal; thence continuing along same; the following three courses and distances: {1) South 02 degrees 40 mixiute+s 05 seconds West a distance of 355.24 feet to an iron pin; (2) South $5' degrees 57 miautas 00 seconds East, a distance o£ 81.85 feet to a point; sad (3} South 84 degrees lab minutes 45 seconds Bast, a diatancs of 208.97 feet to an iron pipe on the 4leateXA line of a thirty foot right-of-gray; thence continuing slang said 30 foot right-of-way Sotcth OB degrees 36 minutes 00 seconds Vest, a distance of 220.14 fast to a six inch hackbarry true oa the southern 7.ine of a fifty fbat right-o£-way; thence continuing along said right-of-any, South 84 degrees 55 minutes 00 seconds East, a dista~a of 823.92 feet to an iron pin at lands now or fozmexly of Saxtholonew; theaee eo~ntiauing along lands o£ 9axtholomsw and others, South 05 deg~taas 30 minutes 00 seconds blast, a distance of 152.88 Feet to an iraa pin; thence 3lorth 84 degrs+es 15 minutes 00 seconds Wert, a distance of 1.50.05 feet tv an iron pia: thence South 05 degrees 45 minutes DO seconds West, a distance of 93.00 feat to an iron pia; thence South 17 degrees Z3 minutac 40 seconds Bast, a distanoe of 100.81 feat tv an iron pipe an the aorthestt4lins of Poplar St7Caat (uaopanad); thence continuing along same by s,eutvQ to the left having a radius of 331.k6 feet, an src length of 2`4.45 feRt to at3 iron pin; theaee Gontirnsing 31eng Lama South 67 degxeat 34 winutas 00 seconds blast, z distance of 217.39 feat to a spike; thence South 22 degrees 38 miAUtes 00 aeeoada East, a distances of 183.00 feet to an Trott pin; thence ~ivrth 67 degrees 53 minutes 00 seconds East, a distance o£ 167.81 feat to an iron pin; thence South 22 degreaa 31 mitattes 00 seconds East. a distance of 15283 feat to an iron pin; thence ~lorth 67 degrees 35 miautas 00 seconds East, a distance of 13.20 feet to as iron pits; thence South 15 degrees 54 n~iauta: 00 seconds East, a distance of 181.16 feet to an irvn pfn at lands nos ox formerly of Rodger E. and Leah J. Yioks; theslCee aositinuing along same South 57 degrees 39 minutes 30 seconds West, a d3,stanc• of 1, 0$3.09 feet to a atone; thence continuing along same South 67 degrees ZS niautas 45 secoada Vest, a diatancs of 438.49 feat to a stone; thezbea continuing along same and lands now or foraeriy of Eugene H. Pottaiger, South 00 degrees 30 minutes 00 eacands West, a distance of 790.04 feat to a pipe; thence continttitsg along l~ad~a tw~v ar fotmet:ly of Pottaiger a<ad lands nov ox :2ormerly of Thomas sad Terry Bryan, South 80 degrees 34 minutes 30 sacatsds West, a distance of 621.35 fast to as iron pin; thence continuing along lands now or fariaerly of Bryan, South 04 degrees 30 minutes 00 secoada East, a distance o£ 381.32 feat to as iron gin at Iaads nvv or formerly of Jesrie and Emma L, lhysrs; theaca cvntinufug along same she following tra coursea~ and distanaaa: (1) Aorth 63 degrees 43 minutes 00 seconds bleat, a distance of 1,184. b0 feet to an iron pin; and (2) North 63 degrees -2- ~aax #~.~ eAcflfl~9 doll 08/X1/99 99ED 10:49 FA% 717 788 9240 PHI CO SR. HG~(T. ~. ,ti' 52 minutes 17 sQCOads West, a distance of 217.80 fvvt to a point on the aastax7a sight-of-vay lizLe ot~ State Rouse 114, Che pafut sad place of BF.GINNiNG. CQI4TAINIPiG 74.336 acres . BEI1~G shone as lot Na, 2 oa the Final Limited Subdivision Plan for PHICO Graup, Inc. dated April 21, 1944 acid rtcordad in the Offfev of th® Recorder of Deeds of Cumberland County en July' 22, 1994 at Plaza Book b8 Page 6i. BRING a portion of the prauises ~rhich PFIICO Inauranae Coe-pat~y, by its Dead dated August 6, 1993 sad z'ecardad in tho Office of tba Recorder of Deeds of Guabarlas~d County at Dead Sook L, volvims 36 , Page 526, gt'aatad and cotxveyed u~.tc PHICO GYOUp, Inc., the srantor txerein. co~syed. AKD the said Grantor Will Warrant Specially the properly hereby IN WITNRSS WHI-.REO~', 1~HxG0 GROUP, INC. , tIza said Grantor, has caused this Deed to bQ executed by its duly aurhvrized a£ficera and 3.ts corporate seal to be affixed the dayiaad p+~ar fit'st above arritteu. :s ATTEST: } Svc ~ SE,~) a~ * ~~~` . ~~`.;.~r~; c.. G " zct~ ~t~~t ^~ ~p~~ r = to ~ ,'?~ i o' ~ 'z t 1 ~~' - ~.lpy ++•.~. •iN$ 1 .:ti. ~ ,~~ rylhlr-...~.'"~ t ece~ ~.~ ~~cEi.09~ ~~ ~~~~ ~~~~~ I ~ ~~ -, s ~~~~ t~ -3- M M M _~~ ~ ~ ~.a~a.a id~~,w~ ~ &~~~ N ~~~~ f ~~ui~~ GRArTTO&: FHICO GROUP, INC. $Y= S c{Vie Preaf t s rte.. ~, a ~_ ~~ ~, ~ 012 LG ~ ~ ~ ~ ~, ~ ~ .i7 ~ Cx t*+ a s 4~ 2f ~ f,-1 A~.~•i ~~•~ 3 ~ v ~ .N ? rn [?'I ~ ~ Cl7 -p N ?> 08/11/99 WED 10:43 FA% T17 788 9240 PHIGO SR. MGllT. X013 '4 • k. COl4~W&~iL111 of PEI~Q~3CLv[~TIA ) SS: COIJNT7f OF CiA~38gLAND ) Qa Ibis, the, day of ~`~'~ a.S.'r , 199k, baFore me, the subscriber, a xatury Public in and for sa3,d v~onmealt:6 and Cotaa~ty, personally appQa~Cad ,,~' ltal~ v~bo acknoa~ladged ~iimself to be the~~vice} Preaidaat of Pf3Y~0 GBOQP, xNC., a P®~uxsylvaaia corporation, and that he as such d~Vice~ President, being authorized to do so, executed the foregairxg ixtstrumant for the oses therein caritained by signing the Hama of the carporat:ion by hi~usalg Vxce~ Pxasideat. - ..'Kt. T~INESS my head and notarial seal the day and year aforesaid. ,...•~., r ~'•. G' 0 F ~~}~'~ •~ ~ " :` Notary Public 'r ~' :' ~ a'Yl ~' = ~ ; '~~ Mq Commission Bzgirea: ~ ~~3. r;~~ a nor.: I HE~ESY-rCffiIPY tt>:t ttte precise address of the Grantee hereir- is ,.~ PffiCO 8ealty Corpotatioa .One PHICO Drive l~ahat~icsburg, PA 170'~tr Attorney or Agent fox Oranred y ,~ ,- 7 CO~ONi~BALTH OF PENNSYL~i'A~'tA ).-. .. :~: ~ ss: COUNTX OF cOK88S7AND ....<.) _ _ _.. ~tecoxdad on this ~~ day o$ A.D. I 8ocorder's Office of the s+i~d Coiuaty in Dead Book ,~_, Volume ~ .~ Civea wader mY hand and the seal of t!w maid Oifice, the ~-rittea. ~ ~ ~ ~ RaCOlder ~OQX ~i,O PAG~,O~, . ~: .. ~~ (~, ~'~ ,~,.,z,: ., t _ Y_ .:?4.~.L fir- ' ~ r'~^~~ TURNER AND O CONNELL ^_ Ji .. „, ~ ~ , ~, .. 0 ;tLN 258 North Street ,U ;:, u ~ R~1 11 ~~ Harrisburg, PA 17101 , QO flUG 1y (717) 232-4551 TffiS DEED Made this 14th day of August, 2000, between PHICO GROUP, INC., a Pennsylvania corporation having its principal office located at One Phico Drive, Mechanicsburg, Pennsylvania, party of the first part, GRANTOR, A N D PHICO INSURANCE COMPANY, a Pennsylvania business insurance corporation having its principal office located at One Phico Drive, Mechanicsburg, Pennsylvania, party of the second part, GR.ANrEE, WITNESSETH: that the Grantor, for and in consideration of the sum of ONE AND NO/100 {$1.00) DOLLAR, in hand paid, the receipt of which is hereby acknowledged, the said Grantor does grant and convey to the Grantee, its successors and assigns all that certain piece or parcel of land situate in Silver Spring Township, Cumberland County, Pennsylvania, more particulazly bounded and described on Exhibit "A" attached hereto. AND the said Grantor will SPECIALLY WARRANT AND FOREVER DEFEND the property hereby conveyed. IN WITNESS WHEREOF, the Grantor has caused this Deed to be executed as of the day and yeaz first written above. Attest ~. Secretary P CO Group, Inc. seal) esid ~:~~~ ~ ~ ~ x~2 State of Pennsylvatia County of ~' l~~l t lrl On this the I4th day o August, 2000, bef a me, the undersigned officer, personally appeared t; f ~ ~s k~ ~2s`t t of PHICO Group, inc., and that he, as ch [p ~t [l p,~- ,being authorized to do so, executed the oregoing Deed by signing the name of the corporation by~~self as In witness whereof I hereunto set my hand and notarial seal. My Commission Expires: No blic _ - :- f- " " ';w ~" r:' y,. rt • ,?.~ -' I hereby certify that the precise address of the within Grantee i5 ~~ One Phico Drive P.O. Box 85 Mechanicsburg, PA 17055 Attorney for Grantee ~~~~~S~r~Boo ~-5~-~' ~aa=ta~-.~ r T t I ro ~~~~~~~~~~ ~a~c~i~~ ~~a'' ~ O x ~ ~ m 0 °~ ~~~~ ~- G~l ~ LJI ~ Ca O tJ1 ~ .~ a C(f~1 [.~1 O 4 b Ga G O 0 0 0 0 0 0 o ut n a O ~ O .~ a ,u'-t- ys N as 7D ~ G.~ ~~ O JC r Oti ri aoox v 4 4~a 4A f"r C 'T7 'T ~~ 'mot C rg ., ~- ~+~G ! ~ .cC ~ '3 c,J ALL THAT CERTAIN lot or piece of ground situate in Silver Spring Township, Cumberland County, Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point at the southeast corner of the intersection of Hogestown Road (SR 0114) and Carlisle Pike (SR 0011); thence along the southern right of way line of Carlisle Pike South 87 degrees 19 minutes 55 seconds East 254.90 feet to a point; thence by lot 2 of the below referenced plan of lots the following courses and distances: (1) South OZ degrees 40 minutes OS seconds West 327.$9 feet to a concrete monument; (2) South 87 degrees 34 minutes 40 seconds East 248.78 feet to a concrete monument; (3) South 02 degrees 25 minutes 20 seconds West 409.09 feet to a concrete monument; (4) South 15 degrees 34 minutes 52 seconds East 1159.64 feet to a concrete monument; (5) South 66 degree 02 minutes 45 seconds West 1089.90 feet to a concrete monument; (6) North 23 degrees 32 minutes 15 seconds West 100.00 feet to a c.m.; (7) North 65 degrees OS minutes 30 seconds West 295.00 feet to a c.m.; (8) South 72 degrees 54 minutes 30 seconds West 328.00 feet to an iron pin at corner of lands now or formerly of Harry and Peter Miller; thence along said lands of Miller North 63 degrees 30 minutes 02 seconds West 114.00 feet to a pout; thence continuing along said lands of Miller, North 67 degrees 15 minutes 03 seconds West 63.10 feet to an iron pin on the eastern right of way line of Hogestown Road (SR 00114); thence along said eastern right of way line of Hogestown Road the following courses and distances: (1) North 24 degrees 45 minutes 20 seconds East 82.01 feet to an iron pin; (2) North 24 degrees 45 minutes 20 seconds East 1893.63 feet to a point; (3) South 87 degrees 34 minutes 40 seconds East 20.97 feet to a point; (4} North 24 degrees 55 minutes 35 seconds East 356.10 feet to a point, the point and place of BEGINNING. BEING Lot No. 1 on a Final Limited Subdivision Plan for PHICO Group, Inc., dated June 14, 1994, and recorded in Plan Book 68, page 62. BEING part of the same premises which PHICO Insurance Company, by deed dated August 6, 1993, and recorded in the Cumberland County Recorder of Deed Office in IJeed Book L-36, page 526, granted and conveyed unto PHICO Group, Inc. TRACT NO. 2 ALL THAT CERTA.l1Y lot or parcel of land situate in Silver Spring Township, Cumberland County, Pennsylvania, bounded and described in acaordancc with a survey by Ernest J. Walker, Professional Engineer, dated February 28, 1975, as follows: BEGINIING at a point along the eastern side of Hogestown Road (PA Route 114) at the southwest corner of premises. No. 718 Hogestown Road, said point also being 0.5 feet. of a mile south of U. S. Route ~11; thence along said premises No. 718 Hogestown Road, South 66 degrees 10 minutes 33 seconds East 62.49 feet to a paint; thence continuing eooF 227 ~A.;~t Y~~ along the same, South 62 degrees 25 minutes 32 seconds East 114 feet to Land now or formerly of Belau Fiornes, Inc.; thence along said land South 25 degrees 29 minutes West 122 feet to line of premises No. 714 Hogestown Road; thence along said premises North 62 degrees 26 minutes West i 77.12 feet to a point at the east side of the. aforesaid Hogestown Road {PA Route No. 114); theace along the same North'25 degrees 48 minutes East 118 feet to a point, the place of BEGIl~II~FING. HAVIl~TG thereon erected a one story frame dwelling known as No. 7l6 Hogestown Road. BEING the same premises which Anna C. Miller, widow, by deed dated August 30, 15-93, and recorded in the Cumberland County Recorder of Deeds Office in Deed Book N 36, page 211, granted and conveyed unto PHICO Group, Inc. .,, -. , .~~~IF .~ f.rv ~Yr y. ~'. iii ~J I~ I~y1~T~•v jn .1.~'~u~~ j ~~~J.. ~I{~y .yy_.r+ /~ .~'~ !k ~r~ ,~j Stat~a of Pennsy4vania 11 Count/ cf Cumberlandl Rcccrc~d in. tl~a office for the recording of Deads ~,n[. end f r`umc1riord County, P +~ Bo_ Vol'-- °age ~;:t~s~s my hand and,~~*! of aff;ceQf C::riiss~, PA this _.__~~.___ day of i ~9 ~ ..~~jF, R soox 227 ^'.~t X35 LEGAL DESCRIPTION LANDS OF P~ICO REALTY CORP. ACCESS EASEMENT All that certain area being situated along the access drive £or PHICO Insurance Company in Silver Spring Township, Cumberland County, Pe~msylvania, said area. being shown as a access ease~mertt on a Final Land Development Plan for PHICO Route 11 Access, as recorded is Plan l3ook , Pg. said. easement being more pa:tieularly bounded and described as follows: BF~GINNING AT A POIIVT, said point being the northeastern corner of Lands of PHICO Realty Corp. and the northv~arn corner of Lands of SukbiffEnterprises, Inc, on the above referenced land development plan; thence along the right-of-way line of Cazlisle Pace North 87°21'04" west, a distance of 15.15' to a point being the 'TRUE POINT OF BEGINPTING, thence abng the eastern side of the subject easement the following seven (7) courses and distances: 1) south 04°28' i 8" west, a distance of 50.03' 2) North 87°21'04" west, a distance of 15.01' - 3) South 04°28' 18" west, a distance of 296.82' . 4) North 85°31'42" West, a dista~e of 10.00' 5) a curve to the right with a radius of 320.00' and an arc length of 220.23' 6) South 43°54'15" West, a distance of 151.50' 7) a curve to the left with a radius of 680.00' and an arc length of 200.41' to a point on the property line between PHICO Realty Corporation. and PHICO Insurance Company; thence along said property line North 15°35'01" west, 57.25'; thence slang the western side of the subject easement the following six (5) courses and distances: 1) a curve to the right with a radius of 720.00' and an arc length of 170.04' 2) North 43°54' 16" East, a duce of 151.60' 3) a curve to the left with a xadius of 2$0.00' and an arc length of 192.70' - 4) North 04°28'18" East, a distance of 295.23' ~ North 87°21'04" West, a distancx of 25.01' 6) North 04°28' 1$" East, a distance of 50.03' to a point on the right-of wgy lone of Carlisle Pike; thence along sayd right-of-wag North 87°21'04" East, a distance of 90.OS' to a point being the TRUE POINT OF BEGINNIl~TG Containing an area of 41,427.41 square feet (0.95 acres). ,~C V~ ~i " ..~, ~' .! 1 1 S~,d4. ~ Y, ~~ I ~ v' /' • '~ / ~~~~~ •L../ '•• v \e \ / '~ r.9a. s, r m h ~ { ~ ~ ~ ~ ' / J A ~ -C1 ,~ T ~";. ~~O a ~.n 2h 4' P 1 \\~\\\ `~ ~,~~ ~_ . o \ O> Al • "R ~s~V' \• ~ ~f ~~ ~~~~ g ~ •~` ~ ~ ~\,,,~ 1 n ~ ~\ ~ V ~ ~i z ~ \\```+ u 8 ., a "C~RE.~~ C~P~ s~ay-ie~ °„oP" __._.=- ~., a o y ~ i J 5~ ~~~-~~~ ~~~~" ~~~ ~~$~ K~~ ~ `. ~`'`,` \ d I ,,`•~,`,~ ~• ~ ~ •~ w ~--. ~ ~ P k 17110 ~~ runt Stroet. HO~~7~~3-2192 ;.;sec 1403 ~°r0;~,-~1233-1028 fAX ~ _-,,.....-- ROBERT P: ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNT 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 201024449 Recorded On 9i1R010 At 4:08:22 PM * Instrumeut Type - RIGAT OF wAY Invoice Number -'11975 User ID - KW * Grantor - PHICO REALTY CORD * Grantee - PHICO INSURANCE CO * Customer -VICTOR STABILE * FEES STATE aTRIT TAX $0.50 STATE JCS/ACCESS TO $23.50 JUSTICE RECORDING FEES - $39.50 RECORDER OF DEEDS PARCEL CERTIFICATION $20.00 FEES COUNTX ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 CUhIDERLAND VALLEY SCHOOL $0.00 DISTRICT SILVER SPRING TOtP1dSHIP $0.00 TOTAL PAID $88.50 * Total Pages -19 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA RECORDER O * - £n£ormation denoted by an asterisk map change during the veritFcation process and may not be reflected on this page. tlIII~INVa19Vl19 CERTIFICATE OF SERVICE I hereby certify that I have on this 1St day of October 2010 served the foregoing upon the below named individual by first class mail postage pre-paid as follows: Stephen J. Dzuranin, Esquire Jefftey C. Clark, Esquire WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 Attorney for Plaintiff .~ Victor P. St ile, sq. 29140_1 ,~~ Fi~.FO-C~F~'fC~ ~.a~~ Ti'p' ~~~~7E-~f`~E:~ ,~ ~~.~ 1 -..l ~ i "...~ t !"~ j C~~O ~~'~ ~~ ~~ 4153 MANAGEMENT, INC., tradin ~s IN H 'I~F~T OF COMMON PLEAS, U D PROPERTIES, ~~°~~' IMr~~111i'~~I~IaD COUNTY, PENNSYLVANIA V. NO. 2010-5430 NORMAN K A HOPPER and MATTHEW D. HOPPER, trading as 114 : ASSOCIATES :CIVIL ACTION -LAW/EQUITY PLAINTIFF'S REPLY TO NEW MATTER AND NOW, comes Plaintiff, 4153 Management, Inc., trading as U D Properties, by and through its attorneys, Wix, Wenger & Weidner, and files this Reply to New Matter, stating as #ollows: 70. No answer is required. 71. Defendants' paragraph 71 is a legal conclusion, to which no answer is required. 72. It is admitted only that Exhibit A is a copy of the deed for the U D Tract. 73. Exhibit A is a writing. Defendants' Paragraph 73 is denied to the extent that it does not fully comport with the writing. 74. Admitted. 75. Admitted upon information and belief. However, the Easement Agreement was recorded after the filing of the Complaint. 76. It is admitted only that the document attached as Exhibit B is the Easement Agreement. 77. Defendants' paragraph 77 is a legal conclusion, to which no answer is required. 78. The Easement Agreement is a writing. Defendants' Paragraph 78 is denied to the extent that it does not fully comport with the writing. 1 79. The Easement Agreement is a writing. Defendants' Paragraph 79 is denied to the extent that it does not fully comport with the writing. 80. The Easement Agreement is a writing. Defendants' Paragraph 80 is denied to the extent that it does not fully comport with the writing. 81. Defendants' paragraph 81 is a legal conclusion, to which no answer is required. 82. Denied. It is specifically denied that the roadway was constructed in accord with the Easement Agreement, and strict proof is demanded. 83. Denied. It is specifically denied that the Easement Agreement authorized the use of Plaintiff's property during construction of the roadway, and strict proof is demanded. 84. Denied. It is specifically denied that the drainage easement was granted only in favor of Defendants, and strict proof is demanded, 85. Denied. It is specifically denied that any reconstruction or diversion of storm water was done as necessary for the easement granted and in the manner most considerate of all property rights of the parties, and strict proof is demanded. 86. Denied. It is specifically denied that the construction of storm water facilities does not deprive Plaintiff of its drainage rights for the reasons more fully set forth in the Complaint. 87. Defendants' paragraph 87 is a conclusion of law to which no answer is required. 88. Defendants' paragraph 88 is a conclusion of law to which no answer is required. 89. Denied. It is specifically denied that Plaintiff had meaningful written and actual notice of construction of the roadway. Defendants provided notice of an intent to 2 construct the roadway more than four years before actually beginning construction. No notice of the actual date of construction of the easement was given. Moreover, Defendants never informed Plaintiff that it intended to trespass upon Plaintiff s property in constructing the easement or that it intended to construct certain elements of the easement so that they exceeded the boundaries of the easement. Defendants never requested that Plaintiff execute a construction easement, a typical and customary agreement when another's property must be utilized for construction. Lastly, Plaintiff was never informed as to the design of the roadway so as to address the fact that the roadway was constructed at an unreasonable elevation. 90. Defendants' paragraph 90 is a conclusion of law to which no answer is required. 91. Defendants' paragraph 91 is a conclusion of law to which no answer is required. 92. Defendants' paragraph 92 is a conclusion of law to which no answer is required. 93. Defendants' paragraph 93 is a conclusion of law to which no answer is required. To the extent an answer is required, it is specifically denied that Defendants have acted consistently with the Easement Agreement. 94. Defendants' paragraph 94 is a conclusion of law to which no answer is required. 95. Defendants' paragraph 95 is a conclusion of law to which no answer is required. To the extent an answer is required, Plaintiff refers to its Complaint, in which a right to relief in equity is set forth. 3 96. Defendants' paragraph 96 is a conclusion of law to which no answer is required. To the extent an answer is required, Plaintiff refers to its Complaint, in which the immediate or irreparable harm to Plaintiff is set forth. 97. Defendants' paragraph 97 is a conclusion of law to which no answer is required. To the extent an answer is required, it is denied that greater injury would occur to Defendants than to Plaintiff. 98. Defendants' paragraph 98 is a conclusion of law to which no answer is required. To the extent an answer is required, it is denied that Plaintiff is in breach of the Easement Agreement. 99. Defendants' paragraph 99 is a conclusion of law to which no answer is required. To the extent an answer is required, is specifically denied that any of the Defendants' action complained of were permitted by the doctrine of necessary implication. 100. Defendants' paragraph 100 is a conclusion of law to which no answer is required. To the extent an answer is required, Defendants' paragraph 100 is based on a writing, and the allegation is denied to the extent that it does not fully comport with the writing. 4 WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant the relief as requested in the Complaint. Respectfully submitted, WIX, WENGE~2 &~1I,~IDNER Dated: w/ ~ t /\U By: Stephe l DzV~anin, Esquire Attorne No.52653 Jeffrey C. Clark, Esquire Attorney ID No. 89277 508 North Second Street Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff F:\sjd18616 U.D. Properties\PHICO PropertylDocumentslReply to New Matter.doc 5 VERIFICATION I, Robert C. Spitzer, Esquire, attorney for 4153 Management, Inc., t/a UD Properties, Plaintiff in the foregoing Reply to New Matter, have read the foregoing Reply to New Matter and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. The Officer of Plaintiff is outside the jurisdiction of the Court, and his verification cannot be obtained within the time allowed for filing the pleading. I verify that all of the statements to which 1 have personal knowledge, information and belief are true and correct and that false statements made therein may subject me to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. The information as to matters not stated upon my own personal knowledge, information and belief has been provided to me by the agents of Plaintiff. Date: ~~~~ ~ ~ ~ By ~. 7 4153 MANAGEMENT, INC., trading as U D PROPERTIES, Plaintiff v. NORMAN K A HOPPER and MATTHEW D. HOPPER, trading as 114 ASSOCIATES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010 -5430 CIVIL ACTION - LAWlEQUITY JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Reply to New Matter was sent via first class mail to the following: Victor P. Stabile, Esquire Dilworth Paxson LLP 112 Market Street, 8~" Floor Harrisburg, PA 17101 Attorneys for Defendants Date: ~ ~ `u ` ~ ~? 6 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OFD+ CUMBERLAND COUNTY, PENNSYLVANIA c � JAN 24 AM fEJ. 50 4153 MANAGEMENT, INC., �'E"S YL A hil Trading as U D PROPERTIES, Plaintiffs No. 2010-5430 V. NORMAN K.A. HOFFER and MATTHEW D. HOFFER, CIVIL ACTION—LAW/EQUITY Trading as 114 ASSOCIATES, Defendants WITHDRAWAL AND ENTRY OF APPEARANCE Please withdraw the entry of Victor P. Stabile, Esquire, on behalf of Norman K.A. Hoffer and Matthew D. Hoffer, trading as 114 Associates ("Defendants"), effective December 31, 2013, and enter the appearance of John B. Consevage, Esquire as counsel of record for Defendants. Please direct all further communications and pleadings to his attention. Resp ctfully submitted, Respectfully submitted, i Victor P. Sta ' e, sq. John B. Consevage, Es Atty. I.D. No. 37449 Atty. I.D. No. 36593 Dilworth Paxson LLP Dilworth Paxson LLP 112 Market Street, 8th Floor 112 Market Street, 8th Floor Harrisburg,PA 17101 Harrisburg, PA 17101 Telephone: (717) 236-4812 Telephone: (717) 236-4812 Facsimile: (717) 236-7811 Facsimile: (717) 236-7811 Email: vstabile@dilworthlaw.com Email:jconsevagegdilworthlaw.com DATED: December 31, 2013 CERTIFICATE OF SERVICE I hereby certify that I have, this 23rd day of January, 2014, caused the foregoing to be served upon the below-named individual via first-class, postage-prepaid mail addressed as follows: Wix, Wenger& Weidner, P.C. Richard H. Wix, Esq., 4705 Duke Street Harrisburg, PA 17109-3041 Attorneys for Plaintiff t�lC Ellen L. I asmsk',Paralegal 11489583_1