HomeMy WebLinkAbout01-2813KUSIC CAPITAL GROUP, L.L.C., : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
V.
.
HARRY F. CHRISTIE, : IN EQUITY
Defendant
NOTICE_
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
AT ONCE. IF YOU DO
YOU SHOULD TAKE THIS pAPER TO YOUR LAWYER TELEPHONE THE
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA
717-249-3166
AVlS_9_O
usted en la corte. Si usted quiere defenderse de estas demandas
Le hah demandado a . . ' ne viente (20) dias de plazo al partir de la fecha de
..... ~,tag en las vaginas sigmentes, usted tie ......... ariencia escrita o en persona o pot
~'~v ..... -,- · '--2~.~oo;,m Usted debe presentar
sos defensas o sus objeciones a las flemandas en
la demanoa Y la nou~.~,,oo.~..-- ·
abogado Y archivar en la corte en forma escrita
contra de su persona. Sea avisado que si asted no se defiende, la torte tomara medidas Y puede
entrar uno orclen contra usted sin previo aviso notificacion Y pot cualquier queja o alivio que es
pedido en la peticion de demanda. Usted puede perder dinew o sus propiedades o otros derechos
importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO iMMEDIATAMENTE. S1 NO TIENE
ABOGADO O SI NO TIENE EL DINERO SOFICIENTE DE PAGAR TAL SERVICIO,
I
VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle. PA
717-249-3166
McNEES, WALLACE & NURICK
Helen L. Gemmill, Esq.
I.D. No. 60661
Kimberly M. Colonna
I.D. No. 80362
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff
2
KUSIC CAPITAL GROUP, L.L.C., : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, pENNSYLVANIA
Plaintiff :
V.
HARRY F. CHKISTIE, : IN EQUITY
Defendant :
COMPLAINT_
Plaintiff Kusic Capital Group, L.L.C., for its complaint against Defendant Hazry F.
Christie, states as follows:
1. Plaintiff Kusic Capital Group, L.L.C., (hereinafter "KCG") is a Pennsylvania
Limited Liability Company with its principal place of business at 4201 Crams Mill Road,
Harrisburg, Pennsylvania 17112.
2. Defendant Harry F. Christie ("Christie") is an adult individual who resides at 86
Oxbow Circle, Chalfont, PA 18914.
3. From approximately May 12, 1978 until May 3, 2000, three contiguous lots of
land located in Hampden Township, known as Lot Nos. 1, 2, and 3 were owned by the
Cumberland County Industrial Development Authority (the "Authority") and Gene Pitnick
Development Company, L.P., or its predecessor companies ("Pitnick"). The Authority was the
fee owner of the three lots. Pitnick was the equitable owner of the three lots. The Authority and
Pimick are collectively referred to herein as the "Owners." Attached as Exhibit A hereto, and
incorporated by reference, is a plan showing the three lots that were owned by the Authority and
Pitnick.
4. On May 3, 2000, the Owners severed one lot (shown on Exhibit A hereto as "Lot
No. 1") from the three lots under common ownership by transferring Lot No. I to Plaintiff KCG.
5. Lot No. I has a street address of 3 Cmssgate Drive and contains a commercial
office building.
6. Lot No. I is bounded and described as follows:
ALL THAT CERTAIN tract or parcel of land situate in Hampden
Township, Cumberland County, Pennsylvania, being shown as Lot
I on that certain Final Subdivision Plan for E.L. Gaughen, Harry S.
Claypool, Ernest D. Latham, George F. Patterson and Robert L.
Rice, a partnership, prepared by D. P. Raffensperger Associates,
dated October 6, 1977, last revised on January 12, 1978 (the
"Plan"), recorded with the Cumberland County Recorder of Deeds
Office in Plan Book 32, page 80. Said Lot No. I being more
particularly bounded and described, according to the Plan, as
follows:
BEGINNING at a point at a concrete monument at the southeast
corner of said Lot 1 and Lot 2 as shown on the Plan; thence along
said dividing line between said Lot I and Lot 2 NoCth 71 degrees
08 minutes 00 seconds West a distance of 188.07 feet to a point;
thence continuing along same North 62 degrees 03 minutes 00
seconds West said dividing line between said Lot 1 and Lot 2 a
distance of 186.56 feet to a point at lands now or formerly of
William H. Nelson and Richard W. and Edward W. Weibley as
shown on the Plan, North 73 degrees 08 minutes 00 seconds East a
distance of 886.08 feet to a concrete monument; thence along lands
now or formerly of Joseph D. Brenner, et al. the following two (2)
courses and distances: (1) South 54 degrees 39 minutes 00 seconds
East a distance of 100.00 feet; and (2) North 79 degrees 23 minutes
00 seconds East a distance of 341.68 feet to a concrete monument
on Crossgate Drive as shown on the Plan; thence along said
Crossgate Drive North 18 degrees 52 minutes 00 seconds East a
distance of 529.22 feet to the point and place of BEGINNING.
BEING shown as Lot I on the Plan and CONTAINING 3.583
acres.
7. The transfer of Lot No. 1 to KCG is reflected in a deed recorded in the Office of
the Recorder of Deeds for Cumberland County in Deed Book 220, Page 680.
8. On or about May 4, 2000, the Owners transferred to Defendant Christie the other
two contiguous lots, shown on Exhibit A hereto as Lot No. 2 and Lot No. 3.
9. Lot No. 2 has a street address of ! Cmssgate Drive. Lot No. 2 is partly paved
and contains lined parking spaces.
10. Lot No. 2 is fully described as follows:
ALL THAT CERTAIN tract or parcel of land situate in Hampden
Township, Cumberland County, Pennsylvania, being shown as Lot
2 on that certain Final Subdivision Plan for E.L. Gaughen, Harry S.
Claypool, Ernest D. Latham, George F. Patterson and Robert L.
Rice, a partnership, prepared by D. P. Raffensperger Associates,
dated October 6, 1977, last revised on January 12, 1978 (the
"Plan"), recorded with the Cumberland County Recorder of Deeds
Office in Plan Book 32, page 80. Said Lot No. 2 being more
particularly bounded and described, according to the Plan, as
follows:
BEGINNING at a point at a concrete monument at the northwest
comer of Lot 3 and the hereinafter described Lot 2; thence along
lands shown on Plan of Wm. H. Nelson and Richard W. and
Edward M. Weibley North 23 degrees 08 minutes 00 seconds East
a distance of 150.53 feet to a point at the southwest comer of Lot 1
on the Plan; thence along same South 62 degrees 03 minutes 00
seconds East a distance of 186.56 feet; thence along same South 71
degrees 08 minutes 00 seconds East a distance of 188.07 feet to a
point in Crossgate Drive; thence by a curve to the right having a
radius of 306.87 feet, a distance of 49.10 feet and a chord bearing
of South 23 degrees 26 minutes 46 seconds West to a point; thence
continuing along Cmssgate Drive South 28 degrees 02 minutes 00
seconds West a distance of 100.80 feet to the intersection of Lot 4;
thence along same North 70 degrees 47 minutes 40 seconds West a
distance of 197.34 feet; thence continuing along Lot 3 on the Plan
North 62 degrees 03 minutes 00 seconds West a distance of 168.29
feet to the point and place of BEGINNING.
BEING shown as Lot 2 on the Plan and CONTAINING 1.271
acres.
11. Lot No. 3 has a street address of 5515 Carlisle Pike and contains a one story brick
building with two retail stores.
12. Lot No. 3 is fully described as follows:
ALL THAT certain tract or parcel of land situate in Han~pden
Township, Cumberland County, pennsylvania being shown as Lot
3 on that certain Final Subdivision Plan for E.L. Gaughen, Harry S.
Claypool, Ernest D. Lathan~, George F. Patterson and Robert L.
Rice, a partnership, prepared by D. P. Raffensperger Associates,
dated October 6, 1977, last revised on January 12, 1978 (the
"Plan"), recorded with the Cumberland County Recorder of Deeds
Office in Plan Book 32, page 80. Said Lot No. 3 being more
particularly bounded and described, according to the Plan, as
follows:
BEGINNING at a point on the center line of Carlisle Pike (U.S.
Route 1 I-L.R. #34) at the intersection of Lot 3 and Lot 4 as shown
on the Plan; thence North 62 degrees 03 minutes 00 seconds West
a distance of 139.22 feet to a point at the intersection of lands now
or formerly of Franchise Capital Incorporated; thence along said
land North 23 degrees 08 minutes 00 seconds East a distance of
346.23 feet to a point on Lot No. 2 on the Plan; thence along said
Lot No.2 South 62 degrees 03 minutes 00 seconds East 168.29 feet
to a point on Lot No. 4 on the Plan; thence along Lot No. 4 South
27 degrees 57 minutes 00 seconds West 345.00 feet to the point
and place of BEGINNING.
BEING shown as Lot 3 and CONTAINING 1.218 acres, more or
less, according to the Plan.
13. The transfers of Lot No. 2 and Lot No. 3 to Christie are reflected in a deed
recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book 220, Page
1023.
14. During the time that the Owners owned Lot No. 1, Lot No. 2 and Lot No. 3, the
Owners permitted ingress to Lot bio. I from State Route 11 and egress from Lot No. I to State
Route 11 across a right ofway located on Lot No. 2 and Lot No. 3.
15. The portion of the right of way across Lot No. 2 is shown on Exhibit A as the area
of macadam on which there are no lined parking spaces.
16. The portion of the right of way across Lot No. 3 is shown on Exhibit A as the
macadam area to the north of the building and the strip of macadam running along the entire
eastern boundary of Lot No. 3 on which there are no parking spaces.
17. The right of way across Lot No. 2 and Lot No. 3 was used for ingress to and
egress from Lot No. 1 prior to the time of the sale of the lots to KCG and Christie, and it has
continued to be used in the same way to the present.
18. The tenants of the commercial office building located on Lot No. 1, their
employees, suppliers, and customers used, and continue to use, the right of way across Lot No. 2
and Lot No. 3 in such a way that the existence of the right of way was and is open, visible,
permanent, and continuous.
19. Christie had actual or constructive notice of the right of way before he purchased
Lot No. 2 and Lot No. 3.
20. The Deed transferring Lot No. 2 and Lot No. 3 to Christie specifically states that
the property is subject "to all easements, restrictions, encumbrances and other matters of record
or that a physical inspection or survey of the premises would reveal."
21. The prior use of the right of way, the terms of the sales of the properties, and
other res gestae indicate an intent that the right of way across Lot No. 2 and Lot No. 3 would
'7
continue to serve Lot No. I after severance of Lot No. I from the common ownership of the
Owners.
22. The right of way is convenient and beneficial to Lot No. I because it allows
egress to State Route 11, and specifically to the west bound lanes of travel for State Route 11,
while the alternative exit from Lot No. 1 via the private Crossgate Drive allows access only to
east bound lanes of travel on State Route 11.
COUNT h DECLARATORY JUDGMENT
23. Paragraphs one (1) through twenty-two (22) above are incorporated herein by
reference.
24. Title 42 Pa.C.S.A. § 7533 provides that:
Any person interested under a deed, will, written contract or other writing
constituting a contract, or whose rights, status, or other legal relations are affected
by a statute, municipal ordinance, contract, or franchise, may have determined
any question of construction or validity arising under the instrument, statute,
ordinance, contract, or franchise, and obtain a declaration of rights, status, or
other legal relations thereunder.
25. The use of the right of way across Lot No. 2 and Lot N°- 3 f°r the benefit °f L°t
No. I and the severance of the common ownership of Lot Nos. 1, 2 and 3 creates an easement by
implication over Lot Nos. 2 and 3.
26. The easement by implication permits the owner of Lot No. I to continue to use
the right of way in the manner that it had been used prior to the severance of Lot Nos. 1, 2, and 3
from common ownership.
WHEREFORE, KCG requests the entry of a declaratory judgment, declaring that the
owner of Lot No. 1 has an easement by implication across Lot No. 2 and Lot No. 3 to the extent
of the right of way described more fully above and that the owner and tenants and invitees of the
owner of Lot No. I are entitled to continue to use the easement for ingress and egress to State
Route 11.
COUNT II: PERMANENT INJUNCTION
27. Paragraphs one (1) through twenty-four (26) above are incorporated herein by
reference.
28. In February 2001, Christie applied for a township building permit to allow him to
erect a fence along the northern boundary of Lot No. 2.
29. The erection of the proposed fence would completely obstruct the use of the right
of way across Lot Nos. 2 and 3, which constitutes an easement by implication for Lot No. 1.
30. The township's zoning officer initially denied Christie's request for a building
permit.
29. On April 9, 2001, Christie appealed the denial of the building permit, and a
township heating on the appeal is scheduled for June 6, 2001.
WHEREFORE, KCG requests that Christie, and his transferees, tenants, licensees, heirs,
successors, agents, employees, assigns, and legal representatives be permanently enjoined and
restrained from interfering with or obstructing the use of the easement and right of way from Lot
No. I across Lot Nos. 2 and 3.
McNEES, WALLACE & NURICK
Helen L. Gemmill, Esq.
I.D. No. 60661
Kimberly M. Colonna
I.D. No. 80362
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717 ) 232-8000
Attorneys for Plaintiff
s
Exhibit A
MCNEE~, WALLACE
VERIFICATION
make I~s d=cl~allon on behalf o1' Kuslc C~iInl G~uup L L.C. thai [ huvc read mid am familiar
Co~lmnt is tcue and con'cci ~ the best of my personal knowledge, mfounalion ~d bclicf, ~ds
Verification i~ made snbjeet tn the pe~altlcs of [8 Pa. C $. ~ 4904 ~i~ting tu u]]swon~
l~[$~fication lo authorities.
,,.,,,,,,,.,..,, ,.....n,,n.n..u.,q.qqm,m[qUl~qm[ [1[[ ['l Il: Ill IIllllllllll Illlllllll Illlllll I Il Illlllllllll[ [ Ill!ti{
KUSIC CAPITAL : IN THE COURT OF COMMON PLEAS OF
GROUP, L.L.C., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION - EQUITY
:
HARRY F. CHRISTIE, :
Defendant : NO. 01-2813 EQUITY TERM
ORDER OF COURT
AND NOW, this 9th day of May, 2001, upon consideration of Plaintiff's Motion
for Preliminary Injunction, a hearing is scheduled for Tuesday, May 29, 2001, at 2:30
p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
sley Oler, ~)
Helen L. Gemmill, Esq.
Kimberly M. Colonna, Esq.
P.O. Box 1166
Harrisburg, PA 17108 c~ _c-'
Attorneys for Plaintiff ,~i!'_ .. ...:-'.'
~.;' ,
Harry F. Christie -- {'~,--?¥ r~ t Lc ~ / , -:, :.
86 Oxbox Circle -:~.... .....
Chalfont, PA 18914 v~t, :..,,.;...
Defendant, Pro Se
:r~
SF~RIFF'S RETURN - OUT OF CO~~ "Y
CASE NO: 2001-02813 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KUSIC CAPITAL GROUP LLC
VS
CHRISTIE HARRY F
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
CHRISTIE HARRY F
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of BUCKS County, Pennsylvania, to
serve the within COMPLAINT - EQUITY
On May 25th , 2001 , this office was in receipt of the
attached return from BUCKS
Sheriff's Costs:
Docketing 18.00
Out of County 9.00 --
Surcharge 10.00
Dep. Bucks Co 48.00 ~h~iff of Cumberland County
.00 /
85.00 ·
05/25/2001 ~"
MCNEES, WALLACE & NURICK
Sworn and subscribed to before me
this 2~ ~ day of'_~
~/ A.D.
~ I Prothonot~r~
B~CKS COUI~ ;H~-R.IFF*S DEPAR~
5/~R~VF
Doylestown, PA 18901
WN.J~AM DALTON (215) 348-6124
c:rrr~ D~EPF. rJ*Y (21~) 348-6]38
50/./C77~R
TO: POSTMASTER
DATE:
ADDRESS INFORMATION RF,~UF. STED
Please furnish u~is a~ncy wiu~ ~he new address, if available, for ~i~ following ~iividual or verify whed~ u~ address
given below is one a~ which marl for this individual is curremly bein~ delivered. If dm following address is n post off'u~
box, please ~nJsh ~he su~e~ address ss recorded on u~e boxholder's appliclion form.
LAST KNOWN ADDRESS:
I ~rfi~ ~ th~ ~ldr~ information for thi~ individu~l i~ t'~qua'~l~~ t~'f~r~~'Y'~_/.~.~ official dut.~.
FOR POST OI~-I~-ICE USE ONLY
[ ] MAIL IS D~-W'ERED TO ADDRP_,SS GIVEN NEW ADDRESS
[ ] NOT KNOWN AT ADDP. ESSGIVEN ~10 ~J.).~ ~/-
[ ]MOVED, I.,~,q-NOFORWARDINOADDRESS ~)OA)~ ?fZ
[ ] NO SUCH ADDRESS
[ ] OTHER (SPECn:'Y): BOXHOLDER'S s~-t,u~ ADDRESS
AOE2qCY R~A-t.JRN ADDRESS POSTMARI~DATE STAMP
. ~-. ~o 'mort Pteas of Cumb~
BUCKS
SHERIFF'S RETURN
~'O~, 5/!0/01 S~cial In,ructions ,~.':. '"
~ ~, 20 O O, L g~F$ O~.
~~ ~ Plaintiff KUS~C Cap~ta[ C~m? ~.T.~
depmafion being made
at ~e requem =d risk of the Pla~ti~ D~endant HARRY F
~dress ~ed if Different
Cawed under Pe.R.C.P. #402
|A) (i) Defendant personally sorved
Affidavit of Servie~ ~^j {2) (i) Family Member
-~OW, ~ (A) (2) (i) Adult in Charge of Residence
20 (A) (2) (ii) Manager/Clerk at Doffs. Lodging
Wi~hiD -' ~' &~ (A) (2) (ii/) Person in Charge of Business
~ By Handing to
uporl ' -
~ ~ ~J~B~s Ran Out Defendant Not Home
c~ ~ Defen~lant Moved Address Vacant
~ ..-~-~.ef. Unknown Dap. Needs Better Add.
~ ~ ..~y~ Checked Post Office = No Fo/~varding__
~ copy of the m
and I/lade ]Glown tO Witness
The above document was serv_ed~ on the
defendar4 as par information listed, a~ (n tha County
~O ailS'weTs, of auck~.~ll[nn2~nweelth
Lawrence R. Michaels. Sheriff of Bucks County
Affirmed and, subscribed before me on this day
Prothonotary
~*'o~ and subscribed be~m-e COSTS Affirmed and subscribed before me on this day
~_ aay of 20
AFFiD& V}Zr notary Public
KUSIC CAPITAL : IN THE COURT OF COMMON PLEAS OF
GROUP, L.L.C., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION - EQUITY
:
HARRY F. CHRISTIE, :
Defendant : NO. 01-2813 EQUITY TERM
ORDER OF COURT
AND NOW, this 25th day of May, 2001, upon agreement of counsel, the hearing
regarding Plaintiff's Motion for Preliminary Injunction previously scheduled for May 29,
2001, is rescheduled to Monday, June 4, 2001, at 8:30 a.m., and Tuesday, June 5, 2001, at
8:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
J?esley Ole~[5~,
Kimberly M. Colonna, Esq.
100 Pine Street
P.O. Box 1166 r-"
Harrisburg, PA 17108 ~.:
Attorneys for Plaintiff ,-. ..... ':.
Craig Adler Esq ' '
125 Locust Street '
Harrisburg, PA 17101
Attorney for Defendant
:rc
IN THE COURT OF COMMON PLEAS
KUSIC CAPITAL GROUP, L.L.C., CUMBERLAND COUNTY,
Plaintiff PENNSYLVANIA
v. CIVIL ACTION - EQUITY
HARRY F. CHRISTIE, NO: 01-2813
Defendant
NOTICE TO PLEAD
You are hereby notified to plead to the enclosed New Matter within
Twenty (20) days from service hereof or a default judgment may be entered against you.
Respectfully submitted,
ADLER & ADLER
~ifllliam L. Adler, Esquire
ADLER & ADLER
P.O. Box 11933
125 Locust St.
Harrisburg, PA 17108
717-234-3289
Supreme Court ID Number 39844
Attorney for Defendant
Dated: May 30, 2001
IN THE COURT OF COMMON PLEAS
KUSIC CAPITAL GROUP, L.L.C., CUMBERLAND COUNTY,
Plaintiff PENNSYLVANIA
v. CIVIL ACTION - EQUITY
HARRY F. CHRISTIE, NO: 01-2813
Defendant
_ANSWER and NEW MATTER.
AND NOW COMES the defendant, Har~y F. Christie, through his attorneys, Adler & Adler,
and respectfully represents the following:
1. Admitted.
2. Denied. The address of de~endant is 3310 Calle Del Montana, Sedona, AZ 86336.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted.
13. Admitted.
14. Denied. It is denied that during the time that the owners owned lots 1, 2 and 3, the
owners permitted ingress to lot 1 from state Route 11 and egress from lot 1 to State Route 11 across
a fight of way located on lot 2 and lot 3. It is denied that owners permitted such ingress and egress
over lots 2 and 3. Business invitees and visitors to the building on lot I may have driven to and from
lot 1 over lots 2 and 3, but it is specifically denied that this was with the permission of the owner of
lot 2 and 3.
15. Denied. It is denied that the portion of the right-of-way across lot 2 is shown on Exhibit
"A" as the area of macedam on which there are no lined parking spaces. There is no right of way
across lot 2. There is no right of way shown on Exhibit "A."
16. Denied. It is denied that the portion of the right of way across lot 3 is shown on Exhibit
A as the macadam area to the north of the building and this strip of macedam running along the entire
eastern boundary of lot three on which there are no parking spaces. There is no right of way across
lot 3. This is all part of the parking lot of lot three.
-2-
,13
17. Denied. It is denied that the right of way across lot 2 and lot 3 was used for ingress to
and egress from lot 1 prior to the time of this sale of the lots to KCG and Christie and it has
continued to be used in the same way to the present. There is no right of way. After reasonable
investigation the defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment that any part of lot 2 and 3 was used for ingress to and egress from lot I prior
to the time of this sale or that it has continued to be used in the same way to the present.
18. Denied. After reasonable investigation the defendant is without knowledge or
information sufficient to form a belief as to the truth of the averment.
19. Denied. It is denied that defendant had actual or constructive notice of the right of way
before he purchased lots 2 and 3. There was no fight of way. The area in question is merely a part
of defendants parking lot.
20. Admitted.
21. Denied. It is denied that the prior use of the right-of-way, the terms of the sales of the
properties, and other res gastae indicate an intent that the right of way across lot 2 and lot 3 would
continue to serve lot I after severance of lot 1 from the common ownership of the owners. After
reasonable investigation the defendant is without knowledge or information sufficient to form a belief
as to the truth of the averment as to the prior use oftha property. Plaintiffhas cited no specific terms
of the sales of the properties to indicate any intent concerning the right of way as alleged by plaintiff.
Other res gestae has not been defined in this paragraph by plaintiff so that defendant is unable to
respond to this allegation.
-3-
22. Denied. It is denied that the right of way is convenient and beneficial to lot 1 because
it allows egress to state Route 11 and specifically to the westbound lanes of travel for state Route 11,
while the alternative exit from lot I over the private Crosssate Drive allows access only to east bound
lanes of travel on state Route 11. There is no right of way as has been stated. After reasonable
investigation the defendant is without knowledge or information sufficient to form a belief as to the
truth ofthe averment that this alleged right-of-way is convenient and beneficial to lot 1.
COUNT I: DECLARATORY ~UDGMENT
23. The answers to parasraphs one through 22 above are incorporated herein by reference.
24. Denied. This is a legal conclusion to which no responsive pleading is required.
25. Denied. This is a legal conclusion to which no responsive pleading is required.
26. Denied. This is a legal conclusion to which no responsive pleading is required.
Wherefore, defendant requests the entry of a declaratory judgment, declaring that the owner of lot
No. 1, has no easement by implication or any other easement across lot numbers 2 and 3 except as
set forth of record in the office of the recorder of deeds of Cumberland County, Pennsylvania.
COUNT II: PERMANENT INJUNCTION
27. The answers to paragraphs one through 26 above are incorporated herein by reference.
-4-
2S. Admitted.
29. Admitted in part and denied in part. It is admitted that the erection ora proposed fence
would obstruct access from lot I across lots 2 and 3. It is denied that there is a right of way across
lots 2 and 3, which constitutes an easement by implication for lot 1.
30. Admitted. By way of f~rther answer thereto, the denial was issued after objection to the
issuance of a building permit was made by plaintiff.
31. (I~rroneously referred to as paragraph 29 in plaintiffTM complaint) Admitted.
I'~'I~W IvlATTI~R
32. The answers to paragraphs one through 31 are incorporated herein by reference.
33. The Owners never expressed an intent to grant or perpetuate a right of way in favor of
lot I across lots 2 and 3.
34. Lot I has a~ess to the Carlisle Pike from a 34 foot paved road known as Crossgate
Drive which is adiac, ent to lot I.
35. The right of way as alleged by plalntiffis merely a part of the parking lot of lots 2 and 3.
36. There is no specific demarcation of any right of way across lots 2 and 3 l~or the behest
of lot 1.
-5-
37. Defendant purchased lots 2 and 3 on May 4, 2000.
38. Seller, The Owner, was present at settlement.
39. The issue as to whether a right of way existed across lots 2 and 3 for the benefit of lot
I was raised at settlement.
40. Counsel for seller, Steve Weingarten, stated that there was no prescriptive easement
across lots 2 and 3 for the benefit of lot 1.
41. Seller, thewidow °f Gene Pitnick' had n° familiarity with the pr°perties whats°ever'
42. Seller, as the Owner, knew nothing of any right of way and expressed no intent to grant
any right of way to lot I over lots 2 and 3.
43. Counsel for seller, Steven Weingarten, similarly failed to express any intent on the part
of seller to grant any right of way to lot 1 over lots 2 and 3.
44. A cross easement agreement is recorded in Record Book 630, page 360 in the office of
the Recorder of Deeds in Cumberland County, Pennsylvania.
45. In that cross easement agreement dated November 12, 1999, the common grantor,
Pitnick, granted an easement to the owners of Lot 4 as shown on the plan attached to Plaintiff's
complaint, giving the owners of Lot 4 and their business invitees part of the same access tha~ plaintiffs
are requesting.
°6°
46. lust five months after the recording of the above mentioned cross easement agreement,
lots 1, 2 and 3 were transferred to plaintiff and defendant.
47. No cross easement agreement was recorded or entered into for these lots.
48. The recording of the cross easement agreement between the owners of lots 3 and 4 shows
an intent to grant such an easement.
49. The absence of such an agreement for cross easement between lots 1 and lots 2 and 3
shows a lack of intent to convey such an easement to the owner of lot 1.
WHEREFORE, defendan~ respectfully requests that plaintiff' s complaint be dismissed, that
the complaint for preliminary injunction be dismissed, that this Court enter a declaratory judgment
in favor of defendant declaring that there is no right of way over lots 2 and 3 for the benefit of lot 1,
and that defendant be awarded costs of suit and attorney's fees.
William L Adler, Esquire
ADLEK & ADLER
P.O. Box 11933
125 Locust St.
Harrisburg, PA 17108
717-234-3289
Supreme Court ID Number 39844
Date: May 30, 2001
-7-
i.-!4'01(THU{ 11:47 ADLER~ GLARAVAL TEl 17 15416?0
I, r~u ,m,,'ll-tAT THE ST ATEMBNT$ MADE IN THF-.FOEEGOINOPLF"AD]I~IO
"'~'"'"" ..... ___.._AND THAT FAL!{E $TATEMENT$ HE]rEIN ARE'
ARE TItUE A_ND CORIkECT. I UNDU. t~ , - - -O
MADE SUBJECT TO THE ~ENALT]~S OF 18 Pa.C.S.A. Section 4904 I~,Fr..,LATINO {.
UNSWOItN FALSIFICATION TO AUTHORITI]F,S.
cERTIFICATE OF sErVICE
for Defendant, hereby
william L. Adler, Esquire, Attorney __, 2001, I
certify on the New Matter upon the
serued a copy o~ u~ ithin addressed as
following perSOn by first class mail, postage prepaid,
follOWS:
H~en L. Oemmill, Esquire
McNEES, WALLACE, & NURICK
100 Pine St ~'~'~ ~
Har6~urg, PA 17101
~ Adler, Esquire
william L.
IN THE COURT OF coMMON pLEAS
KUSIC CAPITAL GROUP, L.L.C., cUMBERLAND COUNTY,
Plaintiff pENNSYLVANIA
v. CIVIL ACTION ' EQUITY
HARRY F. CHIllSTIE, NO: 01-2813
Defendant
OR pRELIMINAR~ iNJUNCTION
1. Admitted.
2. Denied. Defendant, Harr~j F. Christie, resides at 3310 Caile Del Montana, Sedona, AZ
86336.
3. Admitted. ,' ::
4. Admitted. " .,
ittd '
5. Adm e '
6. Admitted. Lot 2 is a parking lot with lined spaceg ~ a ~ss ..
7. Admitted in part and denied in part.
area. 8. Denied. After reasonable investigation the defendant is without knowledge or
information sufficient to form a belief as to the truth of the averment.
9. Denied- No right of way in favor of lot lexists.
10. Denied. There is no right of way. knowledge or
11. Denied. After reasonable investigation the defendant is without
information sufficient to form a belief as to the truth of the averment.
12. Denied. After reasonable investigation the defendant is without knowledge or
information sufficient to form a belief as to the truth of the averment. By way of further answer
thereto, this is a legal conclusion.
13. Denied. There is no right of way in favor of lot 1. By way of further answer, at
Christie's closing in May, 2000, Christie asked loan Pimick, the representative of Gene ?imick
Development Co., L.P. and her counsel, Steven Weingarten, whether an easement in favor oflot
I existed and neither indicated that a grant of an easement in favor of lot ! at the time of
conveyance of lot ! was intended, of the properties and other res gastae indicate a lack
14. Denied. The terms of the sales
of intent that the alleged right of way would serve lot 1.
15. Denied. After reasonable investigation the defendant is without knowledge or
information sufficient to form a belief as to the truth of the averment.
16. Denied. This is a legal conclUSia~ns~er thereto, a physical inspection of the property
17. Admitted. By way offurther
would not reveal a right of way. There is no defined right of way. plaintiffs allege merely a use.
15. Denied. This is a legal conclusion to which no responsive pleading is required.
19. Admitted. property of defendant.
20. Denied. The plalntiffhas no easement across the
21. Admitted. By way of further answer thereto, this was only after an objection was
made b~ plaintiff.
22. Admitted.
23. Denied.
24. Denied. See answer and new matter to complaint.
25. Denied. KCG still has access over a 34 foot paved road.
26. Denied.
27. Denied.
WHEREFORE, defendam respectfully requests that this cour~ not gram the preliminary
injunction requested by plaintiff, or, in the alternative, in the event that the injunction is granted,
require the plaintiff to post a bond in accordance with PaRCP153 l(b).
Respectfully submitted,
William L. Adler, Esquire
ADLER & ADLER
P.O. Box 11933
Harrisburg, PA 17108
Supreme Court ID #39844
717-234-3289
Ma¥30,2001
CERTIFICATE OF SERVICE
I, William L. Adler, Esquire, Attorney for Defendant, hereby
certify on the 30 day of MaY , 2001,
I served a copy of the within ;Ynswer and New Matter upon the
following person by first class mail, postage prepaid, addressed as
fol lows:
Helen L. Gemmill, Esquire
McNEES, WALLACE, & NURICK
100 Pine St. ~
Harrisburg, PA 17101
William L. Adler, Esquire
HE COURT OF COMMON PLEAS
KUSIC CAPITAL GROUP, L.L.C., : IN T - _ ,~,-,, ,,~,rv p NNSYLVANIA
OF CUMBERLAND I,,~ota~'~ ~ ,, _E
Plaintiff :
: CIVIL ACTION NO. o t- ,~ i'll"
V.
: IN EQUITY
HARRY F. CHRISTIE,
:
Defendant :
PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER~
Plaintiff, Kusic Capital Group, L.L.C., for its reply to Defendant's new matter, states as
follows:
32. KCG incorporates by reference paragraphs one (1) through thirty-one (31) of its
complaint.
33. Denied. KCG denies that the Owners of the Lots never expressed an intent to
grant or perpetuate a fight of way in favor of Lot I across Lots 2 and 3. By way of further
answer, the prior use of the right of way, the terms of the sales of the properties and other res
gestae demonstrate an intent to allow access to Lot I by the right of way over Lots 2 and 3.
34. Admitted in part and denied in part. KCG admits that Lot 1 presently has access
to the west bound travel lanes of State Route 11 from a paved private road -known as Crossgate
Drive which is adjacent to Lot 1. KCG denies that it has access to the east bound travel lanes of
State Route 11 from Crossgate Drive. KCG denies the remaining averments of Paragraph 34.
35. Denied. The right of way is over the portion of the macadam of Lots 2 and 3 on
which there are no lined parking spaces.
3'1
36. Denied as stated· KCG denies the aven~ents of Paragraph 36 because it is unable
· " ere is no specific demarcation of
to determine the meaning of Defendant, s allegauon that [t]h
any right of way across lots 2 and 3 for the benefit of lot l." By way of further answer, the right
of way is visibly defined as the areas of the macadam between the lined rows of parking spaces.
37. Admitted·
38. Admitted in part and denied in part. KCG admits that Joan M. Pimick, a
representative of the Gene Pitnick Development CompanY (,Pimick") was present at settlement,
but denies that Pitnick was the sole owner of Lots 2 and 3. By way of further reply, Pimick was
the equitable owner of the Lots 2 and 3 and the Cun~berland County Industrial Development
Authority ("Auth°ritY") was the fee owner of Lots 2 and 3.
39. Denied as stated. KCG admits that at the settlement Defendant's counsel asked
whether there were any easements over the property and that Pimick's counsel stated that there
were no express easements or prescriptive easements. By way of further answer, the deed
executed at the settlement provides that it is subject "to all easements, restrictions, encumbrances
and other matters of record or that a physical inspection or survey of the premises would reveal."
40. Admitted in part and denied in part. KCG admits that at the settlement, Steve
Weingarten (,,Weiugarten") stated that there were no prescriptive easements. KCG denies that
Weingarten was "counsel for seller·" By way of further answer, Weingarten was counsel for
Pimick, the equitable owner of Lots 2 and 3.
41. Denied. KCG denies that Joan Pitnick, the widow of Gene Pitnick had no
familiarity with the properties whatsoever. By way of further answer, Joan Pimick, as the
representative of the Gene Pimick Development CompanY, actively managed Lots l, 2, and 3,
from the time of her husband's death in July 1997 until the properties were sold in May 2000,
and for a portion of that time, worked out of the Pitnick offices located in the building located on
Lot 1.
42. Denied. KCG denies that the Gene Pitnick Development Company knew nothing
of any right of way and expressed no intent to grant any right of way to Lot 1 over Lots 2 and 3.
By way of further answer, Pitnick had offices in the building located on Lot 1 and Pitnick was
aware that its employees and the other tenants of the building used the fight of way across Lots 2
and 3 for ingress to and egress from Lot 1. This use of the right of way, the terms of the sales of
the properties and other res gestae demonstrate the Owners' intent to allow access to Lot I by the
right of way over Lots 2 and 3.
43. Denied as stated. KCG denies that Weingarten, as counsel for Pitnick, had any
duty to express any intent on the part of the Owners to grant any right of way to Lot 1 over Lots
2 and 3. By way of further answer, the prior use of the right of way, the terms of the sales of the
properties and other res gestae demonstrate the Owners' intent to allow access to Lot I by the
right of way over Lots 2 and 3, and the deed executed by Defendant provides that it is subject "to
all easements, restrictions, encumbrances and other matters of record or that a physical
inspection or survey of the premises would revea ·
44. Admitted upon infom~ation and belief.
45. Admitted upon information and belief with qualification. Further answering,
plaintiff states that an express easement granted to the owners of Lot 4, does not negate the
existing easement by implication in favor of Lot 1.
46. Admitted.
47. Admitted with qualification. An easement by implication already existed over
Lots 2 and 3 in favor of Lot 1.
48. Denied. The recording of the cross easement agreement shows an intent to
memorialize the cross easement agreement, but does not negate the prior existing easement by
implication in favor of Lot 1.
· which no response is required·
49. Denied. Paragraph 49 avers conclusions of law to
To the extent that a response is deemed necessary, the averments of Paragraph 49 are denied.
Further answering, the prior use of the right of way showed the Owners' intent that the right of
way across Lots 2 and 3 would serve Lot 1.
WHEREFORE, KCG requests that Christie, and his tenants, licensees, heirs, successors,
agents, employees, assigns, and legal representatives be permanently enjoined and restrained
from interfering with or obstructing the use of the right of way across Lot Nos. 2 and 3.
McNEES WALLACE & NURICK LLC
Helen L. Gemmill
I.D. No. 60661
Kimberly M. Colonna
I.D. No. 80362
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff
Kusic Capital Group, L.L.C.
Dated: June4,2001
VERIFICATION
Subject to the penalties of 1 $ Pa. C.S.A. § 4904, relating to unswom falsification to
authorities, I hereby certify that I am a member of Kusic Capital Group, L.L.C., that I am
authorized to make this verification on its behalf, that I have reviewed the foregoing and that the
facts set forth therein are truc and correct to the best of my lmowledge, information and belief.
KUSIC CAPITAL GROUP, L.L.~
By ~ /
~teven C. Kusic, Member
Dated: May 31, 2001
MCN£ES, WALLACE & NURICK
Willi.'lm L. Adler, Esquire
ADLER & AI)I.ER
P.O. Box I Ig33
125 Locust Street
Harrisburg. PA 171~}8
I-Iclcn L. Gcmmill
Dalcd: .lullc 4, ZOI}I
IIIIIII II ,~1 II Ill ill IIII I II
KUSIC CAPITAL : IN THE COURT OF coMMON PLEAS OF
GROUP, L.L.C., : CUMBERLAND coUNTY, PENNSYLVANIA
Plaintiff :
: CIVIL ACTION - EQUITY
¥.
HARRY F. CHRISTIE, :
Defendant : NO. 01-2813 EQUITY TERM
ORDER OF COURT
° n
AND NOW, this 4th day of June, 2001, upon conslderatto of Plaintiff's Motion
for Preliminary Injunction, and following a hearing held on June 4, 2001, the motion is
denied·
BY THE COURT,
Kirnberly M. Colonna, Esq.
100 Pine Street
p.o. Box 1166 _~ ,_., ~?,.~7
Harrisburg, PA 17108 ":. ' ':;c.J
Attorneys for Plaintiff
Craig Adler, Esq.
125 Locust Street
Harrisburg, PA 17101
Attorney for Defendant
:re
KusIC CAPITAL GROUP : IN THE coURT OF COMMON pLEAS OF
' : cuMBERLAND COUNTY, pENNSYLVANIA
L.L.C., :
plaintiff : EQUITY
: cIVIL ACTION -
HARRY F. CHRISTIE, :
: No. 01-2813 EQUITY TERM
Defendant
AND NOW, this 4th day of June, 2001, upon
consideratiOn of plaintiff's petition for a preliminary
injunction, and following a hearing, the record is declared
closed, and the matter is taken under advisement. By the Court,
Helen L. Gemmill, Esquire
100 pine street
p.O. Box 1166
Harrisburg, PA 17108
For the Plaintiff
william Adler, Esquire
Craig Adler, Esquire
125 LocuSt street
Harrisburg, PA 17101 ~
For the Defendant
PH~% .~E FOR LISTING CA~E FOH T~_...L
(Must be typewritten and su~tted in duplicate)
~o T~ p~n~NOTARY OF C~Z~LA~D CouNTY
Please last the follOWing case:
(Check one) ( ) for JURY trial at the next term of civil court.
( X ) for trial without a jury.
.......
CAPTION OF cASE
(entire captiOn must be stated in full) ( ) civil Action - Law
( ) Appeal from ArbitratiOn
CIVIL ACTION -- EQUITY
KuSIC CAPITAL GROUP, L-m"C'' (X)
( Plaintiff )
The trial list will he called on --
__.______-----
HARRY F. CHRISTIE, and
Trials commence on
pretrials will be b~ld on _~_~
(Defendant) (Briefs are due 5 days before pre~r~=.,
shall
(The party listing this case for trial
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
X~ 2001 _
No. 281 3 Civil __~-- --
indicate the attorney who will try case for the party who files this praeC~pe:
17101
WILLIAM L. ADLER, ESQUIRE, 125 LOCUST STREET, HARRISBURGf PA
indicate trial counsel for other parties if known: _~_
HELEN L. GEMMILL, ESQUIRE, McNEES, WALLACE & NuRICK
100 PINE sTREET, P- O. BOX 1166, HARRISBURG, PA 17108 _________-
This case is ready for trial, signed~
Print Name:
Date~ ~ Attorney for:
KUSIC CAPITAL GROUP, : IN THE COURT OF COMMON PLEAS OF
L.L.C., : CUMBERLAND COUNTY, pENNSYLVANIA
Plaintiff :
:
: CIVIL ACTION - LAW
V.
HARRY F. CHRISTIE, :
Defendant : NO. 01-2813 CIVIL TERM
ORDER OF COURT
AND NOW, this 20th day of June, 2002, a pretrial conference in the above matter
is scheduled for Thursday, September 26, 2002, at 11:00 a.m., in chambers of the
undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial
memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least
five days prior to the pretrial conference.
A NONJURY TRIAL in the above matter is scheduled for Monday, October 7,
2002, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle,
Pennsylvania.
BY THE COURT,
: es~ey dl~[~,7'- J'~
Helen L. Gemmill, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Attorney for Plaintiff
William L. Adler, Esq.
125 Locust Street
Harrisburg, PA 17101
Attorney for Defendant
Court Administrator ,
KUSIC CAPITAL GROUP, L.L.C., IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY,
PENNSYLVANIA
V.
CIVIL ACTION - EQUITY
HAR~Y F. CI-II~STIE,
Defendant NO: 01-2813
OBJECTION TO TELEPHONIC DEPOSITION AND
TESTIbiONY OF WITNESS JOAN PITNICK
1. On Friday, September 20, 2002, attorney for defendant was served with plaintiWs pretrial
memorandum. In that memorandum on page four, defendant was informed for the first
time that a witness of plaintiff's, Joan Pitnick, would not be appearing for trial.
2. Plaintiffsuggested that a telephone deposition be taken so that the testimony of Joan
Pitnick could be used at trial.
3. Plaintiff's counsel had informed defendant's counsel that Joan Pitnick would be present at
the trial.
4. Defendant's counsel had requested in its pretrial memorandum that he be given the
opportunity to speak with Joan Pitnick before trial.
5. Defendant avers that critical elements of this case include the intent of the seller (Joan
Pitnick) in the creation of the easement and notice to defendant of the existence of the
alleged easement.
-1-
6. Part of defendant's cross examination will involve locating the alleged easement on the
subdivision plan as well as presenting Joan Pitnick with other documents.
7. Regarding questions of subjective intent and whether or not Joan Pitnick did or did not
put defendant on notice of the existence ofthe easement in question, or whether she
intentionally concealed the existence of the easement by omission, requires counsel and
the Court to be able to evaluate the veracity of the witness.
8. The essential element of being able to see the witness while testifying is missing in a phone
deposition.
WHEREFORE, defendant respectfully requests that the Court either order the appearance
of Joan Pitnick at trial, or that her testimony be barred.
Respectfully submitted,
William L. Adler, Esquire
ADLER & ADLER
P.O. Box 11933
Harrisburg, PA 1'/108
Supreme Court ID #39844
71'/-234-3289
September 20, 2002
-2-
CERTIFICATE OF SERVICE
I, William L. Adler, Esquire, Attorney for defendant, hereby certify on the -~O day of_
~ k-~,,,,~ .2002, I served a copy of the within brief upon the following person by
perso~utl service to the following address:
Helen L. Gemmil[, Esquire
McNEES, WALLACE, & NURICK
100 Pine St.
Harrisburg, PA 17101
William L. Adler, Esquire
-3-
~o ..<
KUSIC CAPITAL GROUP, : IN THE COURT OF COMMON PLEAS OF
L.L.C., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION - EQUITY
: IN EQUITY
HARRY F. CHRISTIE, :
Defendant : No. 01-2813 EQUITY TERM
QRDER OF COURT
AND NOW, this 26th day of September, 2002,
upon consideration of Defendant's Objection to Telephonic
Deposition and Testimony of Witness Joan Pitnick, and
pursuant to an agreement of counsel reached at the pretrial
conference in this case, it is ordered and directed that
the testimony of Joan Pitnick be taken by deposition for
trial through the device of videoconferencing, with the
costs of such deposition to be borne by Plaintiff.
By the Court,
J~esley O~, Jr. ,~J.
Helen L. Gemmill, Esquire
Kimberly M. Colonna, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
For the Plaintiff
William L. Adler, Esquire
P.O. Box 11933
Harrisburg, PA 17108
For the Defendant
wcy
KUSIC CAPITAL GROUP, : IN THE COURT OF COMMON PLEAS OF
L.L.C., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION - EQUITY
IH EQUITY
HARRY F. CHRISTIE, :
Defendant : No. 01-2813 EQUITY TERM
IN RE: PRELIMINARY INJUNCTION
Proceedings held before the Honorable
J. WESLEY OLER, JR., Judge,
Cumberland County Courthouse, Carlisle, Pennsylvania,
on June 4, 2001, commencing at 8:28 a.m.
in Courtroom No. 1.
APPEARANCES:
Helen L. Gemmill, Esquire
Kimberly M. Colonna, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
For the Plaintiff
William L. Adler, Esquire
P.O. Box 11933
Harrisburg, PA 17108
For the Defendant
INDEX TO WITNESSES
FOR THE PLAINTIFF DIRECT CROSS
Mary Elizabeth Kennedy 9 15
Arthur T, Nielsen 17 --
Steven C. Kusic 25 29
FOR THE DEFENDANT
None
2
INDEX TO EXHIBIT
FOR THE PLAINTIFF MARKED ADMITTED
NO. 1 - map 11 30
FOR THE DEFENDANT
None
3
1
~une 4, 2001
2
Courtroom No.
3
8:28 a.m.
4 THE COURT: This is the time and place for a
5 hearing on a petition for a preliminary injunction. I will
6 ask counsel to identify themselves for the stenographer.
7 Unfortunately, we have only about 40 minutes for each
8 side's presentation, and we'll take the first 40 minutes
9 this morning and the second 40 minutes this afternoon.
10 MR. ADLER: Thank you, Your Honor.
11 MS. GEMMILL: Helen Gemmill on behalf of
12 Kusic Capital Group.
13 MR. ADLER: William Adler representing the
14 Defendant, Harry Christie.
15 MR. CRAIG ADLER: And Craig Adler.
16 THE COURT: Ms. Gemmill.
17 MS. GEMMILL: I'll make just a brief opening
18 statement, and then we'll call our first witness. I
19 realize we have limited time. I think originally I
20 understood, the Court was going to have the second session
21 tomorrow morning. Do I now understand, it will be done
22 this afternoon?
23 THE COURT: No, no, I thought I said,
24 tomorrow morning. Did I say, this afternoon? I meant
25 tomorrow morning.
4
I MS. GEMMILL: Thank you, Your Honor.
2 THE COURT: Sorry.
3 MS. GEMMILL: And maybe with any luck, we
4 could even finish it up this morning. As the Court knows,
5 we're here this morning for a hearing on a motion for
6 preliminary injunction to enjoin the Defendant from
7 blocking access from easement from Plaintiff.s property
8 across Defendant.s property to the Carlisle Pike. And
9 we're going to present only one exhibit this morning.
10 got it up on the easel right now. It's attached to the
11 complaint.
12 And it will show the way these lots are
13 configured, so the Court has an understanding of how these
14 lots are set up and why the easement is beneficial and
15 necessary across the lots owned by Defendant. For many
16 years, prior to May of last year, all of the lots were
17 under common ownership.
18 They were owned by the Gene Pitnick
19 Development Company and the Cumberland County Industrial
20 Development Authority. One was the fee owner. One was the
21 equitable owner. In 1997, Gene Pitnick, who was the owner
22 of the Gene Pitnick Development Company, he died. His
23 widow, Joan Pitnick, then took over the company. There are
24 actually six lots that were under common ownership. Two of
25 the lots, lots three and four, are adjacent side by side.
1 They border the Carlisle Pike.
2 Then there is to the north of that lot, lot
3 number two, which is a parking area, some grassy area. To
4 the north of that is lot number one, which is now owned by
5 the Plaintiff. It has more parking and an office building,
6 a two-story office building, and then there were two other
7 small lots with parking on them. There's also a private
8 drive that runs along the east side of the property.
9 But the private drive only allows access to
10 go eastbound on the Carlisle Pike. And I need to point out
11 right now that, perhaps because I'm a woman, I'll blame it
12 on my gender, we do have a mistake in the complaint where
13 we have our east and our westbound switched around. That's
14 in paragraph 22. That's incorrect. I think we repeat that
15 error in our brief.
16 But going out the private Crossgate Drive,
17 you can only turn right and head west toward Carlisle. If
18 you would come across lots two and three, you can actually
19 turn left on Carlisle Pike, head east back to Harrisburg.
20 During the time that these lots were under common
21 ownership, that's how everyone went in and out of the
22 office building.
23 They could either come in off Crossgate
24 Drive, but if they wanted to go out and turn left to go
25 towards Harrisburg east, they would go across lots two and
6
1 three, and then head eastbound. In May of 2000, Joan
2 Pitnick sells off the lots. May 3rd, she sells lot number
3 one, with the office building, to Plaintiffs. The next
4 day, she sells lots two and three to the Defendant in this
5 case.
6 The Defendant now wants to put up a fence
7 which would block access across lots numbers two and three
8 to the place where you can turn left onto Carlisle Pike,
9 and we are here to enjoin the construction of that fence
10 which would block the easement. We're going to put on
11 three witnesses this morning. Two long-time tenants of the
12 office building will testify as to the traffic patterns
13 going in and out of the building and the need, why it's
14 beneficial and convenient to go out across lots two and
15 three to turn left on Carlisle Pike. We'll also have Mr.
16 Kusic testify as well.
17 THE COURT: Okay. Mr. Adler, do you want to
18 make an opening statement?
19 MR. ADLER: I don't think that's necessary
20 at this time, Your Honor.
21 THE COURT: Just out of curiosity, why did
22 the Township turn down the permit? Is that something
23 that's going to be of record?
24 MS. GEMMILL: No, it's not going to be a
25 matter of record.
1 THE COURT: Well, then I guess I can't hear
2 it, but I was just curious as to why that was.
3 MS. GEMMILL: The Township has no authority
4 to decide whether there is an easement or not. That's why
5 we're here before this Court.
6 THE COURT: So that has nothing to do-- the
7 turning down of the permit has nothing to do with this
8 case?
9 MS. GEMMILL: No, it does not, Your Honor.
10 THE COURT: Okay. Do all of the lots have
11 access to a public road without regard to easements?
12 MS. GEMMILL: Lot number one does not have
13 access to a public road. It has access to a private drive
14 that's owned by someone who's not a party to this case.
15 THE COURT: But it has an easement over that
16 road?
17 MS. GEMMILL: It has never been litigated.
18 The owner of that private drive has never objected, to my
19 knowledge, to the tenants of lot one going out, in or out
20 that private drive.
21 THE COURT: But a subdivision was permitted
22 without having public access to a lot?
23 MS. GEMMILL: At the time that the
24 subdivision was done, all of the lots were under common
25 ownership. So you could go across all the lots, and there
1 was one owner to have access to the public street, the
2 Carlisle Pike. It's only once we've got this splitting off
3 of the lots, that now suddenly lot number one no longer has
4 access to Carlisle Pike.
5 THE COURT: Mr. Adler, did you want to
6 respond?
7 MR. ADLER: Just to add one thing. It is a
8 matter of public record that lot one has access to
9 Crossgate Drive and the 34-foot right-of-way to gain access
10 to the Carlisle Pike, so there is no matter to litigate
11 there. They absolutely have access to the Pike over
12 Crossgate Drive.
13 THE COURT: Okay. Ms. Gemmill.
14 MS. GEMMILL: I'd like to call Mary
15 Elizabeth Kennedy to the stand.
16 Whereupon,
17 MARY ELIZABETH KENNEDY
18 having been duly sworn, testified as follows:
19 DIRECT EXAMINATION
20 BY MS. GEMMILL:
21 Q Would you please state your name?
22 A Mary Elizabeth Kennedy.
23 Q Where are you currently employed?
24 A Commerce Bank.
25 Q What is your office location?
9
1 A 3 Crossgate Drive.
2 Q And 3 Crossgate Drive, are you familiar with
3 that being the office building located on lot one that's in
4 issue in this case?
5 A Yes.
6 Q How long has your office been located at 3
7 Crossgate Drive?
8 A March of '94.
9 Q What's your position with Commerce Bank?
10 A Vice president in the operations area.
11 Q What does Commerce Bank do at that location?
12 A It's obviously the operations area. We do
13 everything for the bank, all the back room activity, check
14 processing, everything really.
15 Q Who is your current landlord?
16 A Kusic Capital.
17 Q And prior to Kusic Capital becoming your
18 landlord, who was your landlord?
19 A Gene Pitnick Development.
20 Q How many employees does Commerce Bank have
21 at this location?
22 A I think we're close to a hundred employees
23 there now.
24 Q And do you have deliveries and pickups that
25 are made to that facility?
10
1 A Daily.
2 Q Can you describe what those deliveries and
3 pickups are?
4 A A lot of-- well, our vans. We have four
5 vans that courier our work, pick up work from all the
6 branches, and bring it back for processing and delivery to
7 Fed. And we also get deliveries daily for computer paper,
8 envelopes, and whatnot for statements.
9 Q And how long have you had these deliveries?
10 A Since 1994.
11 Q Let's see if we can do this logistically so
12 it's not too difficult.
13 MS. GEMMILL: If I may approach the witness,
14 Your Honor?
15 THE COURT: All right.
16 BY MS. GEMMILL:
17 Q I'm going to bring up this chart. I've just
18 handed you a smaller version. I'm also going to hand you
19 the same document marked as Plaintiff,s Exhibit 1.
20 THE COURT: Has the stenographer marked
21 that? We need to have the stenographer have her initials
22 on all the exhibits.
23 (Whereupon, Plaintiff,s Exhibit 1
24
was marked for identification.)
25 MS. GEMMILL: If I could hand a copy to the
11
1 Court as well?
2 THE COURT: Mr. Adler, do you have any
3 objection to the Court's viewing this?
4 MR. ADLER: No objection.
5 THE COURT: All right.
6 BY MS. GEMMILL:
7 Q I understand you only have one contact in
8 this morning, so I've got the smaller one and the larger
9 one for you. We'll see whichever one works best for you.
10 And let me ask you to do this on the smaller copy of the
11 exhibit. If you could mark with this pink pen with an x
12 where the office building is where your office is located?
13 A (Witness complied.)
14 Q And she has marked that on lot number one.
15 And can you also show me when your trucks leave your
16 facility-- well, first of all, if you can mark with a one
17 the place where your trucks park when they come to the
18 office building?
19 a You mean, our vans?
20 Q Yes, your vans, I'm sorry. I called them
21 trucks.
22 A (Witness complied.)
23 Q So that's on the north side of the office
24 building?
25 A (Witness nodded head affirmatively.)
12
1 Q If you could draw a line when your trucks
2 leave, which way do they go?
3 A (Witness complied.)
4 Q So you've shown them coming out over lot
5 number two and lot number three, and then turning left onto
6 Carlisle Pike?
7 A Correct.
8 Q Why do your trucks-- vans need to head left
9 on Carlisle Pike?
10 A To get to the highway, to get to the 581 and
11 also going straight.
12 THE COURT: I'm sorry. I can't hear you.
13 MS. GEMMILL: If you could speak into the
14 microphone?
15 THE COURT: You'll have to speak right into
16 the microphone.
17 THE WITNESS: They actually need to get out
18 of our area and turn left to get to the highway to get to
19 our branches to pick up the work and also to go straight
20 that way to get to Camp Hill and so on.
21 BY MS. GEMMILL:
22 Q Now did the prior landlord, Pitnick, ever
23 prohibit your trucks from going out over lot two and lot
24 three to make that left-hand turn?
25 A Never.
13
1 Q Do you personally travel across lot number
2 two and number three to get to the Carlisle Pike?
3 A Daily.
4 Q How long have you been doing that?
5 A Since December of '95.
6 Q Have you seen other vehicles go from lot
7 number two-- I'm sorry, lot number one over lots two and
8 three to the Carlisle Pike to make that left turn?
9 A Yes.
10 Q How long have you seen that?
11 A Since-- actually, probably since '94.
12 Q Why is it beneficial-- is it beneficial to
13 have access to the eastbound lanes of the Carlisle Pike for
14 your operations?
15 A Just convenience, timing, as far as getting
16 the work to and from the branches, back for check
17 processing. Also our deliveries, the tractor trailers need
18 to get access to the highway.
19 Q And what effect would the blocking of that
20 access have on your operations?
21 A It would make things extremely difficult.
22 It would also make things very difficult, because when the
23 tractor trailers come in, they pull in. They usually come
24 in Crossgate, park in front, which is the back of the
25 building, but they park there, and then after whatever is
14
1 unloaded, they go back through the buildings to exit. They
2 wouldn't be able to turn around in the lot back there to
3 exit.
4 THE COURT: Is there any reason that they
5 can't go on Crossgate Drive?
6 THE WITNESS: Well, once they get in there,
7 they're not able to turn around or maneuver because of the
8 parking lot and all the cars.
9 BY MS. GEMMILL:
10 Q If your trucks could turn around and get
11 back to Crossgate Drive, could they then turn left onto
12 Crossgate Drive onto the Carlisle Pike?
13 A No, it's prohibited.
14 Q Is there a PennDOT sign that shows it's
15 prohibited?
16 A Yes.
17 MS. GEMMILL: That's all the questions I
18 have.
19 THE COURT: Okay. Mr. Adler.
20 CROSS EXAMINATION
21 BY MR. ADLER:
22 Q Just the alleged easement that you marked in
23 pink, there's nothing marked on the parking lot to outline
24 that, is there?
25 A No.
15
1 Q It's just part of the parking lot, correct?
2 A Yes.
3 Q And you have to weave around the building
4 and in between parking spaces to get out to the Carlisle
5 Pike?
6 A Slightly.
7 Q And again, there's nothing preventing you
8 from using Crossgate Drive to get out to the Carlisle Pike?
9 A Nothing preventing really our vans, but for
10 the tractor trailers, they would not be able to make
11 deliveries.
12 Q Just because of the parking-- your parking
13 lot is not configured well enough to turn the trucks
14 around?
15 A Correct.
16 Q And you're only aware of the use of this
17 since 19947
18 A When Commerce Bank took occupancy.
19 MR. ADLER: I have no further questions.
20 Thank you.
21 THE COURT: Ms. Gemmill.
22 MS. GEMMILL: No redirect. Thank you.
23 THE COURT: You ~y step down. Thank you.
24 May this witness be excused?
25 MS. GEMMILL: Yes, she may, Your Honor.
16
1 MR. ADLER: Yes.
2 THE COURT: You can stay or leave as you
3 choose. Thank you.
4 MS. GEMMILL: Now call Arthur T. Nielsen.
5 Whereupon,
6 ARTHUR T. NIELSEN
7 having been duly sworn, testified as follows:
8 DIRECT EXAMINATION
9 BY MS. GEMMILL:
10 Q Would you please state your name?
11 A Arthur T. Nielsen, P.E.
12 Q What does the P.E. stand for?
13 A Professional engineer.
14 Q Where are you employed?
15 A Erdman and Anthony.
16 Q What is the nature of the business Erdman
17 Anthony does?
18 A We are consulting engineers.
19 Q Where is your office located?
20 A 3 Crossgate Drive, Mechanicsburg.
21 Q And how long has your office been located
22 there?
23 A It will be 23 years in November.
24 Q Have you worked at that site for the entire
25 time that your office has been located there?
17
1 A I came with the firm in July of 1990.
2 Q July of 1990, you said?
3 A Pardon? 1990.
4 Q And what is your position with Erdman
5 Anthony?
6 A Executive vice president.
7 Q Who is your current landlord?
8 A Kusic Capital.
9 Q And prior to Kusic Capital, who was the
10 landlord at that site?
11 A Pitnick Development.
12 Q How many employees does Erdman Anthony have
13 at that site?
14 A A hundred sixty, has changed overtime, but
15 more or less employees. It has continually increased. We
16 presently lease about 45 percent of the space at that
17 location.
18 Q In 1990, when you first worked out at that
19 site, approximately how many employees did Erdman Anthony
20 have there then?
21 A About 40 or 50.
22 THE COURT: Are you on lot number one also?
23 THE WITNESS: Yes, sir.
24 THE COURT: Okay.
25 BY MS. GEMMILL:
18
1 Q That's the two-story office building on lot
2 number one?
3 A Correct.
4 Q Does Erdman Anthony have visitors,
5 deliveries that come on a daily basis?
6 A Yes, we do. We also have a fleet of about
7 20 company owned vehicles.
8 Q Where do those 20 company owned vehicles
9 park?
10 A Adjacent to the building, to the north and
11 west.
12 MS. GEMMILL: If I could approach the
13 witness again?
14 THE COURT: All right.
15 BY MS. GEMMILL:
16 Q In front of you is a blow-up copy and a
17 smaller copy marked Exhibit 1. I'm going to hand you a
18 blue pen, take the pink one away. First, with the number
19 two, can you mark where your visitors, employees, and
20 company vehicles park?
21 A Company vehicles park in this area here.
22 (Witness complied.)
23 Q You're drawing a blue line around the corner
24 of the building?
25 A Correct. And employees and visitors park at
19
1 any vacant spot on the site in this, in this general area
2 of lot one.
3 Q How do your employees, visitors get access
4 to the building?
5 A Two directions. On Crossgate Drive, and
6 then driving through this area here as shown in the pink as
7 well.
8 Q I want you to show how your visitors,
9 employees, if they want to head east on Carlisle Pike, how
10 they leave lot number one, if you can mark that with a blue
11 line?
12 A (Witness complied.) That is the only
13 direction they can
14 Q Why is that the only direction they can
15 A Because there is no left turn on Crossgate
16 Drive.
17 Q Do you know why there's no left turn on
18 Crossgate Drive?
19 A Yes, because of the cuing at the light,
20 there's only about a 50-foot distance between the
21 intersection and the light, and that's also the main
22 intersection and main truck entrance to the Navy Inventory
23 Center.
24 THE COURT: Are you saying, there is a light
25 at Crossgate Drive?
20
1 THE WITNESS: No, about 50 feet to the east,
2 there is a light on Carlisle Pike.
3 THE COURT: At the intersection of Crossgate
4 Drive and Carlisle Pike, about 50 feet east, there is a
5 light?
6 THE WITNESS: Correct. And there is
7 insufficient cuing at that point to allow a left turn.
8 BY MS. GEMMILL:
9 Q What do you mean by insufficient cuing?
10 A Insufficient space.
11 Q For the cars to be coming out and getting
12 back in--
13 A Correct.
14 THE COURT: Wait. You have to let Ms.
15 Gemmill finish her question.
16 BY MS. GEMMILL:
17 Q For the cars coming out and getting in line
18 to head east on the Carlisle Pike?
19 A Correct. That's what I mean by cuing.
20 Q Now let me ask you, you've drawn the blue
21 line that goes across lot one and across lot two and lot
22 number three. On lot number two, are there line parking
23 spaces?
24 A In some instances, yes. In some instances,
25 no.
21
1 Q When you come across lot two, where do you
2 drive? Do you drive on the parking spaces or around them?
3 A Around them. There's-- you drive up the
4 island then to the east of the building on lot three.
5 Q Is there any distinction in the pavement
6 between lot number one and lot number two?
7 A No.
8 Q Did the prior landlord, Gene Pitnick
9 Development Company, allow you, your employees and visitors
10 to exit lot number one by going across lots two and three?
11 A Yes.
12 Q Did they also allow you to come in that way?
13 A Yes.
14 Q Do you ever see Joan or Gene Pitn±ck go from
15 lot number one, driving across lot numbers two and three,
16 making a left-hand turn onto Carlisle Pike?
17 A Yes.
18 Q And what is your understanding as to how
19 long the owners of the property were allowing tenants to--
20 MR. CRAIG ADLER: Objection.
21 THE COURT: Let her finish the question, and
22 then we'll deal with the objection.
23 BY MS. GEMMILL:
24 Q --to go from lot number one across lot
25 numbers two and three?
22
1 THE COURT: Okay. There's been an
2 objection.
3 MR. ADLER: Hearsay. This isn't based on
4 his personal knowledge.
5 THE COURT: Ms. Gemmill.
6 MS. GEMMILL: It's based on his knowledge as
7 an employer of Erdman ~_nthony that's been in that building
8 23 years.
9 THE COURT: The objection is sustained.
10 BY MS. GEMMILL:
11 Q Since you have personally been in the
12 building since 1990, has the owner of the building ever
13 prevented you from going across lots numbers two and three
14 to access Carlisle Pike?
15 A As long as Pitnick had it, there was no
16 problem. We had access on a continuing basis, and nothing
17 was ever said to us to the contrary.
18 Q Could you explain why it's beneficial to
19 have access across lots numbers two and three to the
20 Carlisle Pike?
21 A Okay. Approximately, half of my people live
22 east on the Carlisle Pike, and if they couldn't-- could
23 make only a right turn, they would probably go down onto a
24 residential street to make a turn to be able to come back
25 on the Pike and go east. You have to remember, we are
23
1 completely blocked on the south by the Naval Inventory
2 Control Center, which has several hundred acres back there.
3 Q And what effect would the blocking of the
4 access, if there was a fence erected across the property
5 line of lot two, what effect would that have on your
6 operations?
7 A What it would mean would be that, the people
8 would have to go out Crossgate Drive and make a right.
9 They could not have access, immediate access to 581 which
10 is within about 200 yards.
11 Q Are you aware of any health and safety
12 issues that might arise if a fence were erected there?
13 A It could.
14 Q Could you explain?
15 A It could limit access of emergency vehicles
16 into the building.
17 Q And have you had any experience as a traffic
18 engineer?
19 A Yes.
20 Q Could you explain that experience?
21 A We do quite a bit of work for PennDOT.
22 MS. GEMMILL: Thank you. That's all I have.
23 THE COURT: Mr. Adler.
24 MR. ADLER: I have no questions.
25 THE COURT: Okay. You may step down. Thank
1 you. May this witness be excused?
2 MR. ADLER: Yes.
3 MS. GEMMILL: Yes, Your Honor.
4 THE COURT: All right. You're excused. You
5 may stay or leave as you choose. Thank you.
6 MS. GEMMILL: I'd like to call Steven Kusic.
7 Whereupon,
8 STEVEN C. KUSIC
9 having been duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MS. GEMMILL:
12 Q Would you state your name, please?
13 A My name is Steven C. Kusic.
14 Q And are you affiliated with Kusic Capital
15 Group, L.L.C?
16 A I am indeed.
17 Q Could you explain that affiliation?
18 A I am a 50 percent owner in the corporation.
19 Q Did you purckase a lot from Gene Pitnick
20 Development Company and Curaberland Industrial Authority?
21 A I did.
22 Q Which lot did you purchase?
23 A I purchased lot number one.
24 Q That's shown on Exhibit 1 in front of you?
25 A Correct.
25
1 Q When did you purchase that lot?
2 A We purchased that, I believe, May 3rd.
3 Q Of what year?
4 A Of 19-- 2000. Sorry.
5 Q Prior to the time that you purchased lot
6 number one, did you ever visit the property?
7 A I visited it many times for about six months
8 prior to doing our due diligence.
9 Q When you were doing that due diligence, did
10 you ever see vehicles leave lot number one, crossing lot
11 numbers two and three, and going out, turning left onto the
12 Carlisle Pike?
13 A It appeared to be the main artery for
14 ingress and egress out of the building.
15 Q Did you ever meet with Joan Pitnick at the
16 office building?
17 A I met with her every time I was at that
18 building so I could gain access.
19 Q I'm going to hand you a yellow highlighter.
20 Did you ever see Joan Pitnick leave lot number one and exit
21 the building?
22 A Yes, I have.
23 Q I'd like you to draw the yellow line, the
24 route that you saw Joan Pitnick take when she was leaving
25 lot number one and heading away from the building?
26
1 A Most of the times, it was from the north
2 side of the building, but since I was there so many times,
3 she also left the south side of the building as well.
4 (Witness complied.)
5 Q You've drawn a yellow line that goes out to
6 the Carlisle Pike?
7 A I did indeed.
8 Q Across lots number two and three?
9 A Correct.
10 Q Approximately how many times did you see
11 Joan Pitnick go out that way?
12 A It must have been at least a dozen times.
13 Q Did you also leave lot number one by going
14 out across lots number two and three?
15 A Yes, I followed Joan.
16 Q Is the right-of-way across lots number two
17 and three beneficial and convenient to your office
18 building?
19 A I would say, it's more than beneficial and
20 convenient. It's necessary. Without being able to make a
21 left-hand turn, being able to have my tenants have the
22 right-of-way that they would need to get in and out of the
23 building would be a detriment to us.
24 Q And in what way would that be a detriment?
25 A Well, we represent, with Commerce Bank in
27
1 particular, as well as Erdman Anthony, they have a number
2 of company vehicles that are coming and going through that
3 facility, as well as Commerce Bank. Most of their branches
4 are on the east shore.
5 Therefore, they need to be able to be able
6 to go east and being able to-- first really, if you make a
7 west-- turn right and go west, you would need to go about a
8 mile down before you could really make a U-turn in any safe
9 location, and it's just more of a fact of it's completely
10 inconvenient as well as dangerous, I believe.
11 Q Can you exit lot number one and go out
12 Crossgate Drive and turn left and head east?
13 A No, you can't. There is a pork chop, as
14 they call it, out there that prevents you from making a
15 left-hand turn.
16 Q What is a pork chop?
17 THE COURT: I think I can figure out what a
18 pork chop is. Apparently, this wasn't in your deed. Why
19 didn't you get it in your deed if you felt it was so
20 important?
21 THE WITNESS: The whole property was owned
22 by Cumberland County Industrial Development Authority, all
23 the lots, in the year 2000. And I couldn't answer that
24 really, why that wasn't done.
25 THE COURT: Okay. Ms. Gemmill.
28
1 MS. GEMMILL: No further questions.
2 THE COURT: Okay. Mr. Adler.
3 MR. ADLER: Yes.
4 CROSS EXAMINATION
5 BY MR. ADLER:
6 Q When Joan Pitnick was crossing lots two and
7 three, she owned lots two and three, correct?
8 A That would be correct, although she did sell
9 the Denny's restaurant prior to my purchasing of lot number
10 one.
11 Q Right. But that's lot four?
12 A Correct.
13 Q we're not talking about crossing lot four?
14 A Okay.
15 Q And--
16 MR. ADLER: No, I have no further questions.
17 THE COURT: Okay. Ms. Gemmill.
18 MS. GEMMILL: I just want to make sure we
19 offer Exhibit 1 into evidence.
20 THE COURT: Ail right. Mr. Adler, any
21 objection to the admission of Plaintiff's Exhibit 17
22 MR. ADLER: No, Your Honor.
23 THE COURT: All right. Plaintiff's Exhibit
24 1 is admitted.
25 (Whereupon, Plaintiff's Exhibit 1 was
29
1 admitted into evidence.)
2 THE COURT: Thank you.
3 MS. GEMMILL: That's all the testimony I
4 have, Your Honor.
5 THE COURT: Okay. Mr. Adler.
6 MR. ADLER: We have no witnesses, just
7 argument.
8 THE COURT: Okay.
9 MR. ADLER: We would move to dismiss the
10 motion for preliminary injunction based on the fact that an
11 easement by implication exists. All the Plaintiffs have
12 proven is a use that possibly has been allowed for 21 years
13 could be a prescriptive easement, but they have not met the
14 legal requirements for easement by implication. Certainly,
15 there's no necessity.
16 They've all admitted on the record that you
17 can gain access to the Pike over Crossgate Drive. It might
18 be inconvenient to only be able to turn right, but, again,
19 it's not necessary that they go through our parking lot to
20 do that. The alleged easement is not clearly marked on the
21 parking lot as the case law requires. I mean, all the
22 Supreme Court cases that I've cited in my brief all had
23 clearly marked road that existed for at least 20 years.
24 I think that's one of the requirements to
25 find an easement by implication. I think the most
30
1 important requirement to find an easement by implication is
2 that there has to be-- the intent of the oriHinal common
3 owner has shown to have wanted to Hranted that easement,
4 and the Bucciarelli case from the Supreme Court, that
5 intent was absolutely clear, and these other factors point
6 to that intent, but the Court has to find that that intent
7 exists.
8 The Plaintiffs have not shown any intent on
9 the part of the common owners to even Hrant this easement.
10 And finally, I mean, it easily could have been made a
11 matter of record if the common owners had intended to grant
12 this easement, and it just isn't there. Thank you.
13 THE COURT: Thank you. Ms. Gemmill.
14 MS. GEMMILL: Your Honor, there are three
15 requirements for an easement by implication, which is what
16 we believe the testimony has established. We are not HoinH
17 for a prescriptive easement. In fact, we couldn't, because
18 for the past 21 years, the lots were owned by one person.
19 But the case law clearly sets forth three requirements for
20 an easement by implication. The severance of a unity of
21 ownership by a separation of title. Title had been held by
22 the Pitniks.
23 THE COURT: There's no question that occurs.
24 But the real issue is the intent.
25 MS. GEMMILL: Let me jump down to that third
31
1 element. The Supreme Court in Pennsylvania says that you
2 have-- the reason why this is an easement by implication
3 is, because the intent of the prior owner is implied. What
4 we have shown here, the evidence we've shown here today is
5 that, based on what the tenants had been doing over this
6 property, while it was under common ownership, the owner
7 must have intended that those tenants be able to go in and
8 out across lots number two and three.
9 The Court has to imply the intent of the
10 owner. If the Court wasn't going to imply the intent of
11 the owner, you would have an express easement. But the
12 Supreme Court and the law of Pennsylvania has an easement
13 by implication separate from an express easement. So the
14 evidence that we have put on today shows the intent of the
15 common owner, Joan Pitnick, to allow the tenant in lot one
16 and their visitors and their users to get to the Carlisle
17 Pike by crossing over the other two lots that were owned by
18 Joan Pitnick at that time.
19 The testimony even shows that Joan Pitnick
20 herself went out over lots two and three to make that left
21 turn onto Carlisle Pike. We have fully established the
22 intent of the prior owner when it was under unity of title
23 to allow the tenant of lot number one to go out in lots
24 number two and three. So we have met that element of the
25 test. We don't have to meet it for 21 years.
32
1 It just has to continue for so lon9 so that
2 it's obvious and continuous. Mr. Nielsen has been on the
3 site since 1990. It's 11 years. That's certainly lon9
4 enough. Ms. Kennedy had been there since 1994. Seven
5 years. That also is lon9 enough. An easement is also
6 clearly marked. On Exhibit 1, the witnesses have marked
7 where the easement is.
8 It's the area between the parkin9 lines.
9 No, you cannot go out there and find a line drawn that
10 says, implied easement here, but it's the area across the
11 macadam between the parking lines. I think everyone can
12 figure out, that's the spot where you drive through. An
13 easement by implication does not have to be necessary to
14 get access to the street.
15 It has to be beneficial and convenient.
16 That's what the case law says. And the witnesses here
17 testified as to how that is beneficial and convenient.
18 Without that access over lots two and three, the visitors,
19 tenants, they can't turn left on the Carlisle Pike in order
20 to get access to 581.
21 Instead, they have to turn right, go down
22 perhaps as far as a mile to make a safe turn, come back
23 around again, or as Mr. Nielsen said, perhaps drive into a
24 residential area in order to get back onto the Carlisle
25 Pike heading in an eastbound direction.
1 THE COURT: I need to take a brief recess.
2 We'll reconvene.
3 (Whereupon, a recess was taken at 9:05 a.m.
4 and proceedings reconvened at 9:12 a.m.)
5 THE COURT: Sorry for the delay. Ms.
6 Gemmill.
7 MS. GEMMILL: Your Honor, I think that's
8 basically it. I think you stepped out at an appropriate
9 time.
10 THE COURT: I didn't mean to cut you short.
11 MS. GEMMILL: To establish easement by
12 implication, we met all the elements. We believe in the
13 event the injunction has been entered, Plaintiffs post a
14 bond to enjoin the Defendant from erecting a fence across
15 that line on lot number two which would prevent access to
16 the easement on the Carlisle Pike.
17 THE COURT: Okay. Thank you. Mr. Adler,
18 did you want to respond to that?
19 MR. ADLER: Only about the bond requirement
20 in the event the injunction--
21 THE COURT: In the event there is one?
22 Okay. I appreciate your being able to present this in such
23 a short period of time. And we'll enter this order.
24 (Whereupon, the following Order of Court was
25 entered:)
1 ORDER OF COURT
2 AND NOW, this 4th day of June, 2001, upon
3 consideration of Plaintiff's petition for a preliminary
4 injunction, and following a hearing, the record is declared
5 closed, and the matter is taken under advisement.
6 By the Court,
7 /s/ J. Wesley Oler. Jr.
J.
8
9 THE COURT: And I will enter an order within
10 a day or two. I understand your Township meeting is the
11 6th?
12 MS. GEMMILL: It is Wednesday evening, yes,
13 Your Honor.
14 THE COURT: I'll definitely have an order
15 done before that.
16 MR. CRAIG ADLER: Your Honor, during the
17 pendency of this matter, I'm willing to add that the
18 Township table might appeal in any event.
19 THE COURT: Oh, I see. So during the
20 pendency? Well, in either case, I'll get the order out
21 promptly. Thank you very much. Thank you all for coming
22 in, and court is adjourned.
23 (Whereupon, the proceeding concluded at
24 9:14 a.m.)
25
Common Cut: Dr4v~.ng'
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CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause and that this is a correct transcript of
same.
Wendy C. Yinger
Official Court Reporter
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and
directed to be filed.
Date Jf~&sley OleG.,. ~fr., ~.-
KUSIC CAPITAL GROUP, : IN THE COURT OF COMMON PLEAS OF
L.L.C., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
¥. : CIVIL ACTION - EQUITY
IN EQUITY
HARRY F. CHRISTIE, :
Defendant : No. 01-2813 EQUITY TERM
ORDER OF COURT
AND NOW, this 7th day of October, 2002, upon
consideration of the Plaintiff's complaint in equity in the
above-captioned matter, and following a trial held on this date,
the record is declared closed and the matter is taken under
advisement.
Pursuant to a request of both counsel, the
stenographer is requested to transcribe and file the notes of
testimony from today's proceeding, and counsel are afforded a
period of 14 days following the filing of the transcript within
which to submit any additional briefs which they care to on the
issues which they perceive to exist in the case.
By the Court, ,
J/).Wesley 0~, Jr., J.
Helen L.M-COlona'EsquGemmill'nESquireire
Kimberly
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
For the Plaintiff
william L. Adler, Esquire '~
Craig
I. Adler, Esquire ~
P.O. Box 11933
Harrisburg, PA 17108
For the Defendant
pcb
KUSIC CAPITAL GROUP, : IN THE COURT OF COMMON PLEAS OF
L.L.C., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
v. : CIVIL ACTION - EQUITY
: IN EQUITY
HARRY F. CHRISTIE, :
Defendant : No. 01-2813 EQUITY TERM
ORDER OF COURT
AND NOW, this 7th day of October, 2002, pursuant to
an agreement of counsel, the record from the hearing on
Plaintiff's request for a preliminary injunction in the
above-captioned matter is incorporated into the record of trial
herein.
By t~e Court,
Helen L. Gemmill, Esquire //
Kimberly M. Colonna, Esquire~
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
For the Plaintiff
Craig I. Adler, Esquire
P.O. Box 11933
Harrisburg, PA 17108
For the Defendant
pcb
(USIC CAPITAL GROUP, : IN THE COURT OF COMMON PLEAS OF
L.L.C., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION - EQUITY
IN EQUITY
lARRY F. CHRISTIE, :
Defendant : NO. 01-2813 EQUITY TERM
TRANSCRIPT OF PROCEEDINGS
NONJURY TRIAL
Proceedings held before the Honorable
J. WESLEY OLER, JR., JUDGE,
Cumberland County Courthouse, Carlisle, Pennsylvania,
on October 7, 2002, commencing at 9:30 a.m.
in Courtroom No. 1.
APPEARANCES:
Helen L. Gemmill, Esquire
Kimberly M. Colonna, Esquire
For the Plaintiff
William L. Adler, Esquire
Craig I. Adler, Esquire
For the Defendant
1 INDEX TO WITNESSES
2 FOR PLAINTIFF DIRECT CROSS REDIRECT RECROSS
3 Steven Kusic
By Ms. Gemmill 33 -- 45 --
4 48
By Mr. W. Adler -- 41 ....
5
Joan Pitnick (telephonic)
6 By Ms. Gemmill 50 -- 59 --
7 By Mr. W. Adler -- 56 ....
8
Thomas W. Gaughen
9 By Ms. Gemmill 60 ......
10 By Mr. W. Adler -- 74 ....
83
11
FOR THE DEFENDANT DIRECT CROSS REDIRECT RECROSS
12
Steven J. Weingarten
13 By Mr. W. Adler 13 -- 31 --
14 By Ms. Colonna -- 26 ....
15 Harry Christie
By Mr. W. Adler 86 -- 101 --
16
By Ms. Gemmill -- 93 -- 102
17
Craig I. Adler, Esq.
18 By Ms. Colonna 103 -- 115 --
19 By Mr. W Adler -- 108 ....
REBUTTAL
20
Steven J. Weingarten
21 By Ms. Colonna 117 ......
120
22 By Mr. Adler -- 120 ....
23
24
25
2
1 INDEX TO EXHIBITS
2
FOR THE PLAINTIFF MARKED ADMITTED
3
3 - 4/6/00 deed 33 86
4
4 - 4/6/00 deed 34 86
5
6 10/17/79 letter 65 86
6
7 - Minutes of Hampden
7 Twp Zoning Hearing Board 69 86
8 8 - Site plan 69 86
9
FOR THE DEFENDANT MARKED ADMITTED
10
2 - Agreement of Sale 21 116
11
5 Subdivision Plan 42 116
12
9 Declaration of Easement 90 116
13
10 - Cross-Easement Agreement 91 116
14
15
16
17
18
19
20
21
22
23
24
25
3
1 October 7, 2002
Carlisle, Pennsylvania
2 (The following proceedings were held at 9:30 a.m.)
3 THE COURT: This is the time and place for a trial
4 in the case of Kusic Capital Group, L.L.C., Plaintiff, versus
5 Harry F. Christie, Defendant, at No. 01-2813 Equity Term. We
6 will let the record indicate that the Plaintiff is represented
7 by Helen L. Gemmill, Esquire, and Kimberly M. Colonna,
8 Esquire; and the Defendant is represented by William L. Adler,
9 Esquire, and Craig I. Adler, Esquire. The Court understands
10 that counsel have agreed to incorporate into the record of
11 this trial the notes of testimony and exhibit from a hearing
12 on the Plaintiff's request for Preliminary Injunction, which
13 was held on June 4, 2001. Is that correct?
14 MS. GEMMILL: That is, Your Honor.
15 MR. W. ADLER: Yes, Your Honor.
16 THE COURT: All right, why don't I commemorate
17 that by an order. And now, this 7th day of October, 2002,
18 pursuant to an agreement of counsel, the record from the
19 hearing on Plaintiff's request for a preliminary injunction in
20 the above-captioned matter is incorporated into the record of
21 trial herein.
22 Did counsel wish to make opening statements before
23 beginning the evidentar¥ phase of the trial?
24 MS. GEMMILL: I would like to, yes, Your Honor.
25 THE COURT: All right, Ms. Gemmill.
4
1 MS. GEMMILL: We are here to establish that an
2 implied easement exists across the property owned by the
3 Defendant, Christie, in favor of the property owned by the
4 Plaintiff, Kusic, in this matter. We have actually prepared a
5 trial memoir for the Court, if I could hand that up to the
6 Court right now, I ask my colleague to do that.
7 THE COURT: Thank you.
8 MS. GEMMILL: It explains the law of implied
9 easements. An implied easement is a rather strange animal,
10 that is what I will call it, it does not come up very often in
11 the law; but the evidence that the Court will hear today,
12 along with the evidence from the preliminary injunction that
13 was held last year, establishes that is one of those rare
14 cases when an implied easement is created as a matter of law.
15 To briefly highlight the requirements so the Court
16 has a feel for this as it is hearing testimony, first, you
17 need a property that is under common ownership. I know the
18 Court has before it Plaintiff's Exhibit No. 1, which we had
19 used in the prior hearing, that showed a number of lots that
20 were adjacent -- we also have it up here on the easel to my
21 right -- all owned basically by Joan Pitnick, her family, the
22 interest partnership that was developed, but that was the
23 con, non ownership.
24 The lots were severed. On May 3, 2000, Kusic
25 Capital Group purchased Lot 1, which is the lot to the north,
5
1 ~way from the Carlisle Pike. A day later the Defendant,
2 :hristie, purchased Lots 2 and 3, which were between Lot No. 1
3 ~nd the Carlisle Pike.
4 Now, what is significant is that during the time
5 hat Lots 1, 2 and 3 were under common ownership, the way that
6 the tenants and visitors from Lot No. 1 got to the eastbound
7 lane to the Carlisle Pike was to cross over Lots No. 2 and No.
8 3. There is Crossgate Drive on the east side of the lots, but
9 from Crossgate Drive you cannot turn left on the Carlisle
10 Pike. The reason you want to turn left is because Harrisburg
11 is to the left, it is east, and a lot of the employees at the
12 office building live towards Harrisburg.
13 The evidence will show that the crossing over of
14 Lot 2 and 3 by cars from Lot No. 1 was continuous, open,
15 visible, continued for quite some time. Anyone could go out
16 to the property and see that the over 200 cars that parked
17 around Office Building No. 1, many of them were traveling out
18 over Lots 2 and 3 to the Carlisle Pike. In fact, the
19 testimony we had in the prior hearing was just that, that it
20 is the practice, the common practice for traffic to go over
21 that route.
22 It wasn't an absolute necessity that traffic go
23 over there, but it was beneficial and convenient, which is
24 what the standard is for an implied easement; it doesn't have
25 to be essentially. You can certainly get off this property
1 without going out that way, but beneficial and convenience is
2 the standard that Pennsylvania law requires.
3 This is an implied easement, it is not an
4 expressed easement, if it were, we would not be standing here
5 before the Court today. It arises based upon an inference as
6 to the intention of the parties based on what is happening out
7 there, the continued use.
8 We are going to put on evidence not only of what
9 could have been seen out there at the property, but we are
10 also going to put on evidence of the intent of Joan Pitnick
ll when she severed the property, the intent of the Kusics when
12 they purchased the property, and the actual knowledge of Harry
13 Christie, that this use was continuing and had continued over
14 the property that he purchased and he had that knowledge prior
15 to the time that he purchased the property.
16 It think it is important to know that this is not
17 a prescriptive easement, it is not an easement that arises
18 because it has been used for more than 21 years. That would
19 basically require the owner of a property to have an adverse
20 easement against him or herself, and, of course, you can't be
21 adverse to yourself. So this is not adverse possession
22 easement, this is an implied easement which arises as a matter
23 of law at the moment that the severance occurs.
24 We have the testimony from before and we
25 appreciate Mr. Adler's willingness to allow us to put that
7
1 before the Court without having to go through that exercise
2 again. We are also going to have Joan Pitnick testify by
3 telephone. Just to let the Court know, she is in California,
4 we had thought she would be in New York today, going for
5 treatments at Sloan-Kettering Cancer Institute; but there was
6 a problem with her flight and she is still in California, so
7 we are going to call her there. It is a little early in the
8 morning for her, but she is expecting our call any time after
9 9:30 our time.
10 We are also going to put on the testimony of Tom
11 Gaughen, who was actually the owner prior to Pitnick. His
12 testimony will go to show just the long period of time, the
13 continuousness, the openness, and obviousness of the use of
14 this access way across Lots 2 and 3.
15 I will also put on Steve Kusic to show his intent
16 when the Kusic Capital Group bought the property.
17 THE COURT: I should indicate that I am acquainted
18 with Mr. Gaughen and consider him a friend. Does that cause
19 either counsel any difficulty? I saw him for the first time
20 this morning when I came into the courtroom and realized he
21 was involved in this case.
22 MR. W. ADLER: No, Your Honor.
23 MS. GEMMILL: No, Your Honor.
24 THE COURT: All right.
25 MS. GEMMILL: Based on that testimony we will ask
8
1 the Court to declare that an implied easement exists as a
2 matter of law in favor of the Kusics such that their tenants
3 ~nd visitors can travel across Lots No. 2 and 3, the areas
4 etween the parking spaces, to get to the Carlisle Pike.
5 We will also ask the Court to enter a permanent
6 injunction enjoining Mr. Christie from blocking access to that
7 easement. Thank you.
8 THE COURT: Thank you. Mr. Adler.
9 MR. W. ADLER: Thank you, Your Honor.
10 Strict, clear standards have to govern the
11 creation of easements, because they affect value and they
12 affect use of land. The different doctrines of easement that
13 have been mentioned have been expressed where there is no
14 question as to the agreement between the parties that one
15 subjects his land to an easement in favor of another.
16 A prescriptive easement has various certain
17 requirements in that there has to be 21 years of adverse open
18 and notorious use. Necessity has its own policy
19 considerations in that there can't be any question that this
_
20 is the only way to get to a property, and the Court is going
21 to find the least burdensome way to get to that property over
22 other lands.
23 Implied easements can't be held to lesser
24 standards, and I believe that is what the Plaintiff is going
25 to try to convince this Court of, that they should be held to
9
lO7
1 lesser standards.
2 The Bucciarelli case is clear on its face that
3 they have to prove that the seller intended that an easement
4 be created and that this intention has to be absolutely clear
5 to a buyer so there is intent, and notice, both of these
6 factors have to be present; and there are many factors that
7 Supreme Court case considers.
8 THE COURT: Can you give the full name of that
9 case and the cite?
10 MR. W. ADLER: Bucciarelli, B-U-C-C-I-A-R-E-L-L-I
11 versus Delisa, D-E-L-I-S-A, 547 Pa. 431 691 A.2d 446 (1997).
12 I would submit that the only thing the Plaintiffs
13 are going to be able to prove in this case is that there was a
14 use, that cars and trucks from Lot 1 cross Lots 2 and 3 to get
15 to the Carlisle Pike, and they will not be able to satisfy any
16 of the other requirements that the Supreme Court has stated
17 must be satisfied to find an implied easement. Thank you.
18 THE COURT: So it is your position that an implied
19 easement must be necessary for the use of the property and
20 must, in fact, be intended by the parties?
21 MR. W. ADLER: Necessity is not one of the
22 absolute criteria under Bucciarelli, intent is; and a clear
23 expression of that intent especially is to put the buyer on
24 notice of such an easement.
25 THE COURT: So you would agree with Ms. Ge~m~ill
1 that convenience may be sufficient to support an implied
2 easement?
3 MR. W. ADLER: I don't think it is a criteria to
4 be considered in determining an implied easement.
5 THE COURT: What is the criterion as to whether it
6 is necessity or convenience?
7 MR. W. ADLER: The older cases under implied
8 easements implied necessity was a factor, Bucciarelli does
9 not, so that even if it was convenient, you could find that
10 there was an implied easement; but they haven't met the
11 requirement, they won't be able to meet the other requirements
12 that the tests set forth in this case.
13 THE COURT: Which has to do with intent?
14 MR. W. ADLER: Primarily with intent and a clear
15 expression of that intent. If you look at the line of cases,
16 one common thread through those cases is that that intent is
17 shown on a recorded subdivision plan with some reference to a
18 right of way or easement. What the Courts have interpreted in
19 those cases is the ambiguity of the notation on the plan; but
20 again, in this case there is no record of any such
21 right-of-way or easement anywhere.
22 THE COURT: All right. When the word implied is
23 used in connection with an implied easement, in your view, is
24 it implied in law or in fact or do the cases not draw a
25 distinction?
11
1 MR. W. ADLER: I am not aware that the cases draw
2 that distinction.
3 THE COURT: Ms. Gemmill, are you aware of any
4 distinction in that regard?
5 MS. GEMMILL: I think the Bucciarelli case
6 suggests that is implied as a matter of law, because the
7 easement is then created at the moment of the severance.
8 THE COURT: All right. Ms. Gemmill, do you want
9 to call your first witness.
10 MS. GEMMILL: Actually, Your Honor, because this
11 is a bench trial, we have agreed to take the witnesses
12 slightly out of order, and we are going to allow Mr. Adler to
13 )ut on part of his case at the beginning of the trial.
14 THE COURT: All right, Mr. Adler.
15 MR. W. ADLER: Thank you.
16 One other thing that we have agreed to stipulate
17 ~o, so that we don't have to review all these facts here, we
18 have agreed to stipulate to items 1 through 13 of Plaintiff's
19 complaint, which involved the lots in question and that deeds
20 were there recorded.
21 THE COURT: All right. Then I will consider the
22 facts averred in paragraphs 1 through 13 of Plaintiff's
23 complaint as true.
24 MS. GEMMILL: Yes, thank you, Your Honor.
25 THE COURT: All right. Mr. Adler.
12
1 MR. W. ADLER: I would like to call Steven
2 Weingarten.
3 STEVEN J. WEINGARTEN,
4 having been duly sworn, testified as follows:
5 DIRECT EXAMINATION
6
7 BY MR. W. ADLER:
8 Q Please state your full name for the Court?
9 A Steven J. Weingarten, W-E-I-N-G-A-R-T-E-N.
10 THE COURT: Would you spell Steven for the
11 stenographer, please.
12 A S-T-E-V-E-N.
13 BY MR. W. ADLER:
14 Q By whom are you currently employed?
15 A The law firm of McNees, Wallace and Nurick in
16 Harrisburg.
17 Q How long have you been there?
18 A Since 1989.
19 Q What is the current focus of your law practice
20 ~here?
21 A Real estate law.
22 Q How long have you been doing real estate law with
23 2hem?
24 A Since the early 1990s.
25 Q So you are familiar with easements?
13
1 A Yes, I am.
2 Q This exhibit has been entered at a prior hearing,
3 just so we have a point of reference.
4 THE COURT: Let me give you the original to show
5 the witness, it is Plaintiff's Exhibit 1.
6 MR. W, ADLER: Yes.
7 BY MR. W. ADLER:
8 Q I believe you are familiar with the issue in
9 question here, and that is the easement alleged by the
10 Plaintiffs for the benefit of Lot 1 shown on this Plaintiff's
ll ]xhibit 1, across lots 2 and 3, belonging to Harry Christie?
12 A Somewhat familiar, yes.
13 Q At one time before May 3, 2000, these three lots
14 ~ere owned commonly by I believe it is Gene Pitnick
15 Development Company, L.P.?
16 A I don't recall precisely the entity, but it was a
17 Pitnick entity that owned the property.
18 Q You represented that entity at that time?
19 A Yes, I did.
20 Q Joan Pitnick was the principal of that entity at
21 that time?
22 A She was.
23 Q In that Gene Pitnick had died in 19977
24 A I think it was later than that, but Gene ?itnick
25 had passed away previously.
14
1 THE COURT: What was the entity again?
2 A It was I believe Gene Pitnick Development Company.
3 THE COURT: That was a corporation or a
4 partnership?
5 MR. W. ADLER: Limited partnership, I believe, I
6 mean there is LP after the name.
7 THE COURT: Is that correct?
8 A I don't recall.
9 THE COURT: Okay.
10 BY MR. W. ADLER:
11 Q This Gene Pitnick Development Company, L.P. owned
12 all three lots that are shown on that subdivision plan, Lots
13 1, 2 and 3, on or around May 3, 2000?
14 A I believe that is correct. It was owned by an IDA
15 at one point, so who actually had legal title I am not a
16 hundred percent sure, but he either had legal or equitable
17 title.
18 Q There were two settlements, the first settlement
19 on May 3, 2000, at which time we will call it the Development
20 Company sold Lot 1, as shown on Plaintiff's Exhibit 1, to the
21 Kusics, the Plaintiffs in this case?
22 A I don't recall the date but, yes, there was a
23 closing where the office property was sold to the Kusics.
24 THE COURT: Technically, the Plaintiff here is
25 Kusic Capital Group, L.L.C., is that what you are referring
15
1 to, Mr. Adler?
2 MR. W. ADLER: Yes.
3 BY MR. W. ADLER:
4 Q That would have been the grantee to the best of
5 your recollection, the Plaintiff in this case?
6 A To the best of my recollection, yes.
7 Q Do you have any recollection of that settlement on
8 May 3, 2000, when the Development Company sold it to the Kusic
9 Capital Group?
10 A A vague recollection.
11 Q Could you generally describe what happened at that
12 settlement for us?
13 A It was either at the Kusics' or their attorney's
14 office, I represented Ms. Pitnick. It was a relatively
15 uneventful closing. Again, it was a standard real estate
16 closing, various title issues were addressed by the purchaser;
17 we represented the seller, and it was an uneventful closing.
18 Q Do you remember if any issue was raised concerning
19 this alleged easement at that closing?
20 A I don't recall any discussion of the easement.
21 Q So the Kusic Group bought the lot, and as far as
22 you knew, their access to the Carlisle Pike was across
23 Crossgate Drive?
24 A Well, that is -- actually, that would be correct;
25 and they understood that there was an easement in order to get
16
llq
1 left on the Carlisle Pike, that there was an access way to the
2 Carlisle Pike. So I knew there was an easement, I knew there
3 was access on the Crossgate Drive; but I didn't believe that
4 that was their own access.
5 Q Again, that issue wasn't raised in settlement, the
6 issue of the easement wasn't raised in settlement?
7 A Not to my recollection.
$ THE COURT: Which easement are we talking about,
9 the Crossgate --
10 MR. W. ADLER: The easement over Lots 2 and 3,
11 belonging to Harry Christie.
12 THE COURT: Is that correct, that was not
13 discussed?
14 A I don't recall any discussion of the easement at
15 the Kusic closing.
16 THE COURT: Okay.
17 BY MR. W. ADLER:
18 Q There was certainly, as far as you recall, nothing
19 recorded or in writing memorializing an easement over Lots 2
20 ~nd 3 for the benefit of Lot 17
21 A I don't believe there is anything of record.
22 Q The next day as there --
23 THE COURT: Let me interrupt before I forget. Was
24 2here any discussion of access to the Carlisle Pike by
25 Crossgate Drive?
17
1 A Any discussion of being able to access Carlisle
2 Pike by Crossgate Drive?
3 THE COURT: Yes.
4 A No, actually, I don't think I discussed with
5 either the Kusics or their counsel the issue of access. They
6 had a number of months of due diligence, they would have
7 looked at that; so there was no discussion with me about the
8 ~ssue of access.
9 THE COURT: All right, Mr. Adler.
10 BY MR. W. ADLER:
11 Q The following day the Development Company sold
12 Lots 2 and 3 to Harry Christie, is that correct?
13 A I don't remember the exact timing, but I will take
14 your word for it; but it was within a short distance, in terms
15 of time, of the Kusic closing.
16 Q You at that time still represented Gene Pitnick
17 Development Company, L.P.?
18 A That is correct.
19 Q At the Christie closing?
20 A That is correct.
21 Q Who was present at that closing?
22 A I was present at that closing. I believe my
23 )aralegal, Ann Marchand, was at that closing, Craig Adler was
24 ~t that closing, Harry Christie was at that closing and Joan
25 Pitnick was at that closing.
18
1 Q Would you describe for us generally what occurred
2 at that closing?
3 A It was, again, a relatively uneventful closing.
4 My main recollection at that closing was that it took much
5 longer than it needed to because we were waiting for I believe
6 it was a wire transfer to occur. So, again, there was not too
7 terribly much to be done, there had been months of due
8 diligence before the closing. We went to closing expecting it
9 to be relatively brief, and the actual real estate closing of
10 it was, in fact, relatively brief; and then we waited for I
11 believe it was the wire transfer to hit to finely come to
12 closing.
13 Q At some point in that closing did Harry Christie
14 raise the question as to whether there was an easement across
15 Lots 2 and 3 for the benefit of Lot l?
16 A I only have a vague recollection of that.
17 Actually, as we discussed last week, apparently, there was
18 some discussion with Mr. Christie and Craig about whether or
19 not I guess Mr. Christie had a concern about the cars going
20 across the area between Lots 2 and 3. I was not aware of
21 that. But then at some point during the closing, again, my
22 recollection is that it would have been during the period that
23 we were waiting for the wire to hit, that there was a
24 discussion of prescriptive easement, a discussion of whether
25 or not be it essentially a period user there was a
117
1 prescriptive easement, so I remember that there was a
2 discussion about that.
3 Q Is that the only context of the conversation that
4 ~ou remember, the fact that there was a discussion of
5 )rescriptive easements?
6 A Yes, it was absolutely limited only to
7 ,rescriptive easements.
8 Q Did you describe whether you thought there was a
9 9rescriptive easement or not to Harry Christie?
10 A I did. I believe that what I said was that since
11 ~here was only recently a closing with the Kusics, that
12 ~itnick had owned all three properties, so therefore, a
13 )rescriptive easement would not apply because there was no
14 ~dverse possession of the property.
15 Q So you didn't make any other representations as to
16 whether an easement existed or not, other than your discussion
17 of the prescriptive easement in response to Mr. Christie's
18 question?
19 A That is correct. Essentially, there was a
20 discussion that was happening between counsel, namely Craig
21 and Mr. Christie, apparently a question was asked at one point
22 about prescriptive easement or whether I offered it
23 voluntarily, I don't remember. It was sort of we were
24 )ost-closing and in the post-closing you are just waiting for
25 the wire to hit discussion. And I mentioned, again whether it
1 was voluntarily or whether it was in response to a question, I
2 thought that prescriptive easement did not apply because the
3 property had been -- all the property had been owned by
4 Pitnick basically- up until a couple of days before that.
5 Q Did you and Craig then look at the title file to
6 see if there were any recorded agreements memorializing this
7 alleged easement?
8 A I do not recall me and Craig discussing -- I mean
9 looking at the title file, that was his job, that is what he
10 was supposed to be doing, so.
11 Q Do you remember whether Joan Pitnick responsed to
12 Harry Christie's question since she was sitting at the
13 settlement table with you as far as whether or not an easement
14 existed?
15 A I don't have any recollection of whether Joan said
16 anything.
17 Q I have what we are going to label as Exhibit 2.
18 THE COURT: This would be a Defendant's exhibit?
19 MR. W. ADLER: We were just going to number them
20 as we go along, because of the out-of-order nature of our
21 testimony, if that is satisfactory.
22 THE COURT: I don't care how you number them, but
23 is it Defendant's Exhibit 2?
24 MR. W. ADLER: Yes.
25 (Defendant's Exhibit No. 2 marked for
21
1 identification.)
2 BY MR. W. ADLER:
3 Q What I have just shown you is an agreement of sale
4 between Gene Pitnick Development Company, L.P. and Harry F.
5 Christie, have you looked at this agreement of sale?
6 A I assume that at some point, I either prepared or
7 reviewed the preparation of this agreement.
8 Q So this agreement of sale came from your office?
9 A Yes, it did.
10 Q It is for Lots 2 and 3, the lots that we have been
11 talking about?
12 A Lots 2 and 3, yes, it is.
13 Q I would like to direct your attention to paragraph
14 2 of that agreement of sale.
15 A Yes.
16 Q Would you mind reading the first part of that
17 paragraph on page 1 of the agreement?
18 A Paragraph 2, title, the property shall be conveyed
19 to purchaser by seller's special warranty deed conveying good
20 and marketable title.
21 THE COURT: Slow down and start again.
22 A Paragraph 2, title. The property shall be
23 conveyed to purchaser by seller's special warranty deed
24 conveying good and marketable title insurable at regular rates
25 by any title insurance company selected by purchaser,
22
1 authorized to do business in Pennsylvania, free and clear of
2 all leans and subject only to easements and restrictions of
3 record which shall not interfere with purchaser's intended use
4 of the property for commercial purposes and other related and
5 compatible uses.
6 BY MR. W. ADLER:
7 Q Joan Pitnick signed this agreement of sale, is
8 that correct?
9 A I assume so. Let me get to the last page. Yes,
10 she signed it.
11 Q As well as Harry Christie?
12 A Harry signed it as well.
13 Q In that paragraph 2 it warrants what kind of title
14 the seller is going to give to the buyer, is that correct?
15 A That is right. That is the titled paragraph, this
16 is actually the standard -- I know this comes from our firm,
17 because that is our standard paragraph, yes.
18 Q It states that it is subject only to easements and
19 restrictions of record?
20 A It says that which will not interfere with the
21 laser's intended use, yes.
22 Q Doesn't that mean to you that only easements and
23 ~estrictions of record would encumber this property?
24 A This language, again, is our standard agreement.
25 It provides that also our standard deed, which I think was
23
1 also tendered, talks about it being subject to easements that
2 are visible upon a physical inspection of the property. I
3 believe that is the deed that was tendered as well.
4 Q This agreement as it is written restricts the
5 incumbrance to easements of record?
6 A Absolutely it does.
7 MR. W. ADLER: I have no further questions for Mr.
8 ~eingarten.
9 THE COURT: Do you mind if I ask a couple of
10 questions?
11 MS. GEMMILL: No, Your Honor.
12 THE COURT: Was there a subdivision plan filed
13 with respect to either the transaction on May 3, 2000, or the
14 transaction on May 4, 2000?
15 A No, they were separately previously subdivided
16 properties, the subdivision was one of long-standing, it had
17 been subdivided years before.
18 THE COURT: Is that subdivision going to be of
19 record in the case?
20 MR. W. ADLER: Well, we have the as-billed as
21 Exhibit 1.
22 THE COURT: Plaintiff's Exhibit I or Defendant's
23 Exhibit 17
24 MR. W. ADLER: Well, we had to label the as-billed
25 as Plaintiff Exhibit 1, that was from the preliminary
24
1 injunction hearing.
2 THE COURT: Is that the prior subdivision plan?
3 MR. W. ADLER: That is not the subdivision plan.
4 We have the subdivision plan and we would be happy to enter
5 ~hat on the record.
6 THE COURT: It might be helpful.
7 MS. GEMMILL: Your Honor, I hate to jump in on the
8 ~ourt's examination here, but I don't believe we actually have
9 the recorded subdivision plan; but we do have a subdivision
10 plan that was used at the time these properties were
11 subdivided and we will be using that with Mr. Gaughen.
12 THE COURT: The reason I ask is I am assuming that
13 the municipality had seen to it in whatever subdivision was
14 granted that access was provided to each property.
15 MS. GEMMILL: Your Honor, I don't know what the
16 municipality did; and at the time all these lots were under
17 common ownership, so there would have been access because the
18 owner could have granted access to himself or herself.
19 THE COURT: I understand that; but by subdividing
20 it and showing lot lines, it seems to me the municipality
21 would have been expected to assure access to each property,
22 that would be common practice I would assume. Without the
23 subdivision plan, I don't know whether that is the case or
24 not.
25 MS. GEMMILL: Your Honor, we don't know what the
25
1 municipality did or did not do. They may have just accepted
2 the fact that there would be access to Lot No. 1 because the
3 rest of the property was owned by the same owner.
4 THE COURT: They may have. It would help me, at
5 least, to have that of record in this case. I don't think I
6 can take judicial notice of it.
7 Ms. Colonna.
8 CROSS-EXAMINATION
9
10 BY MS. COLONNA:
11 Q Mr. Weingarten, you have testified about two
12 separate closings already this morning, correct?
13 A That is correct.
14 Q Did you represent the Kusics at the Kusics'
15 closing?
16 A I did not.
17 Q Did you represent Mr. Christie at Mr. Christie's
18 closing?
19 A I did not.
20 Q Is it correct then that you represented only the
21 seller, Gene Pitnick Development Company?
22 A That is correct.
23 Q Were you retained by Mr. Christie to give legal
24 advice to him in connection with his purchase of the property?
25 A I was not.
26
1 MS. COLONNA: Your Honor, may I approach?
2 THE COURT: Certainly.
3 BY MS. COLONNA:
4 Q I just handed you a document which we have marked
5 Plaintiff's Exhibit 3, do you recognize that document?
6 A Yes, I do.
7 Q Could you identify it, please?
8 A This is the deed from, and as I mentioned earlier,
9 it was from the Cumberland County Industrial Development
10 Authority that actually had legal title to the property to
11 Harry Christie.
12 Q Earlier in your testimony you referenced the fact
13 that in addition to the agreement of sale there also would
14 have been a deed tendered at the closing, is that correct?
15 A That is correct.
16 Q Is this the deed that you were referencing?
17 A Yes, it is.
18 Q If you could turn to page 3 of the deed and look
19 at the fourth paragraph from the top. Could you read that?
20 A It says: This is following the grant, and then it
21 says that the grant is: Under and subject, nevertheless, to
22 all easements, restrictions, encumbrances and other matters of
23 record or that a physical inspection or survey of the premises
24 would reveal.
25 Q What is the significance of that paragraph?
27
1 A Again, this is the deed, which is -- it is in
2 April of 2000, the agreement of sale was in February of 2000;
3 so it is a couple of months later. By reason of the merger
4 doctrine the deed takes precedence over the agreement of sale,
5 this is the final document, this is what was delivered at
6 closing.
7 Q You also testified earlier that at the closing
8 there was some discussion between Mr. Christie and his
9 attorney, Craig I. Adler, about cars going across the
10 )roperty, is that correct?
11 A Yes, it is correct.
12 Q When you were actually at the closing, did you
13 hear any of that discussion?
14 A There must have been an earlier part of the
15 discussion, again, it was not a discussion that I was much
16 involved in. It was basically at some point during the
17 discussion between Mr. Adler, Craig Adler, and Mr. Christie,
18 about this easement, the issue of a prescriptive easement came
19 up. And, again, I either offered voluntarily or was asked the
20 question about whether or not I thought a prescriptive
21 easement applied and I said that it did not.
22 Q Did you hear Mr. Christie or his attorney mention
23 anything about cars driving across the lot that Mr. Christie
24 was purchasing?
25 A Actually, my main recollection of that is the
28
1 conversation last week where Craig indicated that he -- that
2 Mr. Christie came in and he was concerned about the cars going
3 ~cross this drive, and, therefore, they had a discussion about
4 his. Again, it was a discussion between counsel and his
5 client, and it was a small conference room so it was hard not
6 to listen; but, again, I tried my best not to listen and
7 probably was engaging in conversation with Joan Pitnick.
8 Q At the closing you mentioned a couple of times
9 that there was a discussion about whether a prescriptive
10 easement could exist on this property, correct?
11 A Yes.
12 Q Do you recall any discussion about whether any
13 implied easements could exist on this property?
14 A No, there was no discussion about implied
15 easements.
16 Q So it is correct that to your recollection the
17 discussion was solely about prescriptive easements?
18 A Again, my discussion was solely about prescriptive
19 easements and it probably lasted for about 30 seconds. There
20 was a very short interlude in a conversation between counsel
21 and his client.
22 Q When during the closing did that short interlude
23 happen?
24 A In my best recollection of this was that we were
25 waiting for the wire transfer to hit; in other words, we had
29
1 completed what needed to be done in closing and we were
2 sitting there waiting for the funds to arrive.
3 Q Did either Mr. Christie or Mr. Christie's attorney
4 indicate that Mr. Christie wouldn't purchase the property
5 unless the easement issues were resolved?
6 A Not at all to my recollection. Again, it was not
7 -- in my view looking back on that settlement, this was
8 conversation to fill time while we were waiting for the wire
9 to hit. There was never any discussion about this easement as
10 in if this exists we won't purchase the property, no
11 discussion whatsoever.
12 Q To the best of your recollection were you asked
13 whether Joan Pitnick or Gene Pitnick Development Company
14 intended for cars to drive across Lots 2 and 3 to access Lot
15 17
16 A Was I ever asked that question?
17 Q At the closing, yes.
18 A I was never asked at the closing, before the
19 closing. No, there was never any discussion of that question
20 ever at any time.
21 Q To your knowledge, was that question ever asked of
22 Joan Pitnick?
23 A Not to my knowledge.
24 MS. COLONNA: I have no further questions.
25 THE COURT: Mr. Adler.
30
1 REDIRECT EXAMINATION
2
3 BY MR. W. ADLER:
4 Q We are talking about a use here of cars and trucks
5 :rossing over Lots 2 and 3 for the benefit of Lot 1, correct?
6 A We are talking about a use of cars going across 2
7 ind 3?
8 Q Let me ask it another way.
9 A survey would not reveal whether cars and trucks
10 ~ross Lots 2 and 3 for the benefit of Lot 1, would it?
11 A A survey would not have but a physical inspection
12 certainly would have.
13 Q That physical inspection might reveal that traffic
14 depending on what time of day you were inspecting the
15 property?
16 A That is true. If it was 2:00 o'clock in the
17 morning, there might not be any traffic; but, again, this was
18 not something that was done clandestinely, it was done for a
19 long period of time in the open and actually fairly close to
20 other property that Mr. Christie owned.
21 MR. W. ADLER: I have no further questions.
22 THE COURT: Ms. Colonna.
23 MS. COLONNA: No, I don't.
24 THE COURT: At the May 3, 2000, settlement, what
25 lots were sold to whom?
31
1 A Was that the Kusic? The May 3, which was what,
2 hat went to the Christies? Which closing?
3 THE COURT: The first closing that you were at.
4 A As far as I understand, the first closing was
5 involving the Kusics purchasing the back property, Lot No. 1,
6 which was the office building.
7 THE COURT: Okay and the second closing involved
8 the sale of Lots 2 and 3 to whom?
9 A Lots 2 and 3 to the Christies -- actually, to
10 Harry Christie.
11 THE COURT: Okay. Any other questions?
12 MR. W. ADLER: No, Your Honor.
13 MS. COLONNA: No, Your Honor.
14 THE COURT: You may step down, thank you. May
15 this witness be excused?
16 MR. W. ADLER: Yes.
17 MS. COLONNA: Yes.
18 THE COURT: You are excused, you may stay or leave
19 as you choose. Thank you.
20 MS. GEMMILL: Your Honor, at this time we would
21 like to initiate the telephone call to Joan Pitnick for her
22 testimony.
23 THE COURT: All right.
24 MS. GEMMILL: I believe I can do this from this
25 phone.
32
1 THE COURT: The stenographer will help you make
2 the call.
3 MS. GEMMILL: Your Honor, I will proceed with
4 other testimony and ask my colleague, Ms. Colonna, to get in
5 touch with Ms. Pitnick.
6 THE COURT: All right. That would be just as
7 well, Ms. Colonna, if you would like to try to reach her.
8 THE COURT: Ms. Gemmill.
9 MS. GEMMILL: I would like to call Steven Kusic.
10 (Plaintiff's Exhibit No. 3 marked for
11 identification.)
12 STEVEN C. KUSIC,
13 having been duly sworn, testified as follows:
14 DIRECT EXAMINATION
15
16 BY MS. GEMMILL:
17 Q Would you please state your name?
18 A Steven C. Kusic.
19 THE COURT: Could you please spell Steven for the
20 stenographer.
21 A S-T-E-V-E-N.
22 THE COURT: Thank you.
23
24 BY MS. GEMMILL:
25 Q Mr. Kusic, do you have a position with Kusic
33
1 Capital Group, L.L.C.?
2 A Yes.
3 Q What is that position?
4 A I am an owner.
5 Q You testified at the preliminary injunction
6 hearing in this case back on June 4, 2001, and I am not going
7 to go over that testimony again because that is part of the
8 record, I just have a few additional questions for you; did
9 ~ou purchase a property, however, from the Pitnick entities?
10 A Yes.
11 Q Is that property the property that we are talking
12 ~bout in this litigation that has been identified as Lot No. 1
13 on Plaintiff's Exhibit 17
14 A Yes.
15 THE COURT: When you say you purchased it, you
16 mean that Kusic Capital Group, L.L.C., purchased it?
17 A Correct.
18 MS. GEMMILL: I would like to ask the Court
19 reporter to mark this next document identified as Plaintiff's
20 Exhibit 4.
21 (Plaintiff's Exhibit No. 4 marked for
22 identification.)
23 BY MS. GEMMILL:
24 Q Mr. Kusic, can you identify what Plaintiff's
25 Exhibit 4 is?
34
1 A This is the deed we received at settlement.
2 Q When was the settlement?
3 A I believe the settlement was in May. The reason
4 that it got delayed like a week was because I had a daughter
5 on April 17, so I think that screwed it up.
6 Q Prior to the time that you purchased Lot 1, did
7 ~ou visit the property?
8 A Yes.
9 Q What did you see in terms of traffic to and from
10 2he office building and Lot No. 1 at the time that you were
11 out at the property prior to when you got your deed from the
12 Cumberland County Development Authority?
13 A Almost all the traffic that I saw was using the
14 egress through Lot 2 and 3 to get to the Carlisle Pike.
15 Q How often did you go visit the property before you
16 actually closed on the purchase of the property?
17 A I visited the property maybe half dozen times, no
18 more than that.
19 Q How much time did you spend out there, what was
20 the longest amount of time that you spent out there on a
21 visit?
22 A I was negotiating leases at the time preparing for
23 settlement, so I was actually meeting with a couple tenants,
24 but I was inside the building for a long period of time
25 meeting with Erdman Anthony and Enterprise Rent-a-Car where we
35
1 were doing lease renewals and expansions.
2 THE COURT: I got confused, did you say a deed
3 from a redevelopment authority?
4 MS. GEMMILL: Yes.
5 THE COURT: I thought the deed --
6 MS. GEMMILL: Your Honor, this is part of our
7 stipulated facts, which is paragraphs 1 through 13 of our
8 complaint. To clarify that for the Court now, the property,
9 all four of the lots, were jointly held by the Pitnick entity
10 and by the Cumberland County Redevelopment Authority. The
11 Redevelopment Authority had legal title, the Pitnick entity
12 had equitable title. I can't really explain the entire
13 transaction, why that happened, but that was in connection
14 with the original development of the property. So the deed
15 itself had to come from the Redevelopment Authority, because
16 that was the entity that had legal title.
17 THE COURT: So what is being referred to as the
18 deed from Pitnick to Christie is actually a deed from a
19 redevelopment authority to Christie?
20 MS. GEMMILL: Yes.
21 MR. W. ADLER: Just so the record is clear, it is
22 Industrial Development Authority.
23 MS. GEMMILL: Thank you.
24 MR. W. ADLER: And that it was a financing
25 mechanism to take care of the transaction.
1 THE COURT: Ail right. But somehow Ms. Pitnick
2 signed the deed or she signed the agreement of sale I guess.
3 MS. GEMMILL: Signed the agreement of sale, and
4 her equitable interest as set forth in our complaint was
5 transferred at the same time that the deed was -- the legal
6 title was transferred.
7 THE COURT: By her signature?
8 MS. GEMMILL: Yes.
9 THE COURT: So there is another document besides
10 the deed?
11 MS. GEMMILL: Yes, there is, Your Honor, and that
12 is part of our stipulated facts.
13 THE COURT: Okay.
14 BY MS. GEMMILL:
15 Q Mr. Kusic, can you tell me the times that you
16 visited the property before the closing, how much time did you
17 spend outside the office building that is Lot 17
18 A I spent a good amount of time actually walking the
19 property.
20 Q Can you give us a sense of minutes, hours?
21 A Not minutes or hours, but I did spend some time
22 and actually walked it with Joan Pitnick. We did actually
23 meet at the southwest corner of the building where we were
24 watching the traffic pass.
25 At the time we purchased the building there was
37
1 also a common area for the dumpsters for both buildings which
2 no longer exists at the present time. There was also on the
3 south side of the building a parking lot which no longer
4 exists.
5 Joan specifically stated to me that the parking
6 lot that was in front of the building was on lot I believe 2,
7 and that lot would belong to Harry Christie upon the sale, but
8 I did have use of the lot as far as crossing over it.
9 Q The time that you were out there with Joan
10 Pitnick, did you see traffic going from Lot No. 1 across lots
11 No. 2 and 3 to make the left-hand-turn on to the Carlisle
12 Pike?
13 A I would say probably 98 percent of the cars use
14 the Lots 2 and 3 to get access to Carlisle Pike when they are
15 leaving the building.
16 Q Did you see that while were you out there at the
17 property?
18 A Yes, it was very transparent.
19 Q How was it transparent, how many cars did you see?
20 A One, Erdman Anthony, as well as Commerce Bank,
21 both have a lot of corporate vehicles, as well as Enterprise
22 Rent-A-Car, so you could see who was going back and forth on a
23 regular basis.
24 Q Did you see that on the times that you were out at
25 the property?
38
1 A Yes.
2 Q About how many parking spaces are associated with
3 Lot No. l, the office building?
4 A I believe approximately 220 parking spaces are
5 associated on Lot No. 1, then there is about an additional 20
6 Iparking spaces that was part of the parking agreement on Lot
7 [No. 2.
8 Q When you were out at the property prior to the
9 purchase of the property, were there cars parked in those 200
10 spaces?
11 A The parking lot is always full.
12 Q About how many employees are physically present in
13 the office building during a typical business day?
14 A I would say with 200 cars, there has to be at
15 least 200 employees.
16 THE COURT: When was this that you were looking at
17 the property?
18 A This would have been the beginning of 2000 maybe.
19 THE COURT: All right.
20 BY MS. GEMMILL:
21 Q This was prior to the time that you actually
22 purchased the property?
23 A Yes.
24 Q What was your intent with respect to travel across
25 Lots No. 2 and 3 for after you purchased the property?
39
1 A Access was necessary over across Lots 2 and 3,
2 because that was the only way you could make -- go eastbound
3 on Carlisle Pike. I live over to Harrisburg in Dauphin County
4 and, therefore, that was the only way that I would be able to
5 leave the property myself.
6 Q Did you expect that you would be able to cross
7 Lots 2 and 3 and make that left-hand turn on to Carlisle Pike?
8 A Yes.
9 Q That was your understanding and expectation at the
10 ~ime that you purchased the property?
11 A Yes.
12 Q In your deed is there an expressed easement as to
13 ~rossgate Drive?
14 A Well, I am not a lawyer, so expressed, implied and
15 everything else...
16 Q You understood that Joan Pitnick did not own
17 Crossgate Drive, is that correct?
18 A Correct, and I believe there is an easement right
19 there.
20 Q Plaintiff's Exhibit 4 is the deed that you
21 received to your property?
22 A Correct.
23 Q The day that you purchased your property, did you
24 understand that Joan Pitnick had not yet sold Lots No. 2 and 3
25 to Harry Christie?
1 A That is correct.
2 MS. GEMMILL: Thank you, that is all I have.
3 THE COURT: Mr. Adler.
4 CROSS-EXAMINATION
5
6 BY MR. W. ADLER:
7 Q You have been in the commercial real estate
8 business with your father for how long?
9 A The first building that I got involved with, with
10 my father was in 19 I think '97.
11 Q About how many such buildings did you own with
12 tour father either through this Capital Group or otherwise
13 :ight around the time of this May 2000 transaction?
14 A I think this would have been the third building
15 that we might have purchased or fourth.
16 Q So when you entered in this transaction and you
17 knew traffic was going across Lots 2 and 3, you made no
18 efforts to memorialize that arrangement in some form of
19 agreement?
20 A No, I didn't make any because it has been there,
21 the buildings have been there for such a long period of time
22 that I assumed it was there.
23 Q But you are familiar with expressed written
24 easement agreements?
25 A I am getting very knowledgeable at this time.
41
1 Q I mean before that with your commercial
2 experience?
3 A Really, my commercial experience was when my
4 father's partners asked him to build an office building, my
5 father included me in the partnership. That was the limits, I
6 was really riding his coattail, nothing more.
7 Q But your father is a lawyer?
8 A My father is a lawyer.
9 Q I am going to show you what we will label as
10 Defendant Exhibit No. 5.
11 (Defendant's Exhibit No. 5 marked for
12 identification.)
13 BY MR. W. ADLER:
14 Q This is a copy of the recorded subdivision plan,
15 are you familiar with this plan?
16 A I have seen this plan before.
17 Q Your Lot 1 is the northern end of this strip of
18 lots, is that correct --
19 A Correct.
20 Q -- as you are looking at Lots 2 and 3. Is there
21 any notation on this plan whatsoever concerning any type of
22 easement going over Lots 2 and 3 for the benefit of Lot 17
23 A Not at this time.
24 Q Not on this plan?
25 A Not on this plan.
1 Q I think it was Plaintiff's Exhibit 4 that was the
2 deed in the Kusic Capital Group, and I just want to turn your
3 attention to page 2 of Plaintiff's Exhibit 4. That
4 specifically states that it is together with the right to use
5 Crossgate Drive as shown on the plan?
6 A That is what it says.
7 Q So that would indicate to you that you had the
8 right, ingress and egress, over Crossgate Drive as given to
9 ,ou in your deed?
10 A Yes.
11 Q As you are looking at the property itself, forget
12 ~he cars and trucks that go across Lots 2 and 3, are there any
13 physical markings on the property that would indicate an
14 easement?
15 A I would say the way the parking lot was laid out
16 for cars coming back and forth, you could say that it was
17 visible.
18 Q I am going to show you Plaintiff's Exhibit 1 that
19 has already been discussed. There are parking spaces and
20 buildings all over the property?
21 A That is correct.
22 Q There is certainly no straight shot from Lot 1
23 over Lots 2 and 3 out to the Carlisle Pike?
24 A That is correct.
25 Q You have to weave around parking spaces and the
43
1 building on Lot 3 in order to get out to the Carlisle Pike?
2 A That is correct.
3 Q And at some points this alleged path widens and at
4 some points it narrows as you cross Lots 2 and 3?
5 A Okay.
6 Q There is nothing on the physical land itself of
7 Lots 2 and 3, other than these parking spaces and buildings as
8 shown on this plan is there, and maybe some concrete
9 structures?
10 A The only thing that is missing on the plans would
11 be -- the plan has changed a little bit. The dumpster area is
12 no longer there. There is a section of parking removed but
13 the lines are pretty clear with a little detour and I would
14 say an architectural road because there is always curves and
15 things.
16 Q There are no signs on Lots 2 and 3 indicating any
17 means of ingress and egress for the benefit of Lot l, are
18 there?
19 A There are no signs at all.
20 Q And nothing painted on the pavement indicating any
21 such use?
22 A There is no painting, but the way -- the parking
23 lots for the buildings flow almost back and forth.
24 Q The parking is as depicted on Plaintiff's Exhibit
25 17
44
1 A Correct.
2 Q Finally, nothing as far as you know impedes your
3 access to the Carlisle Pike over Crossgate Drive, except that
4 you are only allowed to turn right from Crossgate Drive as you
5 exit the property?
6 A Yes, we do have access through Crossgate Drive,
7 but without being able to go eastbound, that significantly
8 impedes your traffic.
9 MR. W. ADLER: I have nothing further.
10 THE COURT: Ms. Gemmill, redirect.
11 REDIRECT EXAMINATION
12
13 BY MS. GEMMILL:
14 Q Do you have Plaintiff's Exhibit 1 there in front
15 of you?
16 A I believe this is Plaintiff's Exhibit 1.
17 Q That is the as-built site plan for Lots 1, 2 and
18 3?
19 A Correct.
20 Q Are there any parking spaces that are split
21 between Lots 1 and 2 as shown with the lines on the plan?
22 A Yes, there is.
23 Q Do you happen to know whether those parking spaces
24 are considered to be part of Lot 1 or Lot No. 2?
25 A They are almost like they are shared.
1 Q Is there anything on the property that indicates
2 to someone who might park in one of those shared spaces that
3 they can't go out over Lots 2 and 3 to get to the Carlisle
4 Pike?
5 A There is nothing.
6 Q Are there any physical barriers between Lots 1, 2
7 and 3 that would indicate to someone that they could not cross
8 that way to get to the Carlisle Pike?
9 A No, there is not.
10 Q Mr. Adler asked you about weaving around parking
11 spaces. How much weaving is done?
12 A I would say it is almost a straight shot. We are
13 talking a few feet.
14 Q The pavement that is out there, is the pavement
15 all the same?
16 A It does look like it was all paved at one time,
17 together.
18 Q In terms of where the cars travel, do the parking
19 spaces define where the travel lanes are?
20 A Yes.
21 Q And the parking spaces are painted on to the
22 surface?
23 A Yes.
24 Q Were the parking spaces painted on the surface at
25 the time that you were doing your due diligence and inspecting
46
1 ~he property prior to purchase?
2 A Yes.
3 MS. GEMMILL: Thank you, that is all I have.
4 MR. W. ADLER: I have no further questions.
5 THE COURT: All right. I have a couple questions.
6 BY THE COURT:
7 Q Who owns it looks like Lot 4 on the subdivision
8 )lan, which is Defendant's Exhibit 5?
9 A I believe it is a Denny's Restaurant that is
10 there, and it is owned by a gentleman from Shippensburg named
11 Morris Rill, but I am not a hundred percent correct about that
12 information.
13 Q Does that have parking spaces on it also?
14 A Yes, it does.
15 Q Does traffic go across that lot.
16 A Traffic comes in through Crossgate and also leaves
17 between what would be Lot 3 and Lot 4.
18 Q Does traffic from Lot 1 cross Lot 4 to get to the
19 Carlisle Pike?
20 A Somebody may use that. I know -- because it is
21 the closest restaurant, you don't have to travel, a lot of
22 people eat there during lunch; but individual habits and how
23 people leave the office building, I can't speak for them.
24 Q Is Crossgate Drive paved?
25 A Yes, it is.
1 Q Who maintains that?
2 A That is like a quagmire. It has never been
3 accepted by Hampden Township, so therefore, no trucks take
4 care of it, so I do take care of it, the whole thing in the
5 winter months. But I don't think the township has ever
6 accepted that road.
7 Q Has it ever been offered for dedication?
8 A I believe it was back in '79 when it was turned
9 over, when the land development was done.
10 Q But you don't know why it wasn't accepted?
11 A No.
12 THE COURT: Anything further?
13 MS. GEMMILL: Yes, based on the questions that
14 Your Honor just asked.
15 REDIRECT EXAMINATION CONTINUED
16
17 BY MS. GEMMILL:
18 Q Looking again at the plan, is it possible to go
19 from Lot No. 1, across Lots 2 and 3 to get to where the exit
20 is where the curb cut is on the Carlisle Pike without touching
21 Lot 4?
22 A No.
23 Q But as you go across, are you on Lot 2 and Lot 3?
24 A Yes.
25 Q Let me ask you to take a look at the plan, looking
48
1 across the courtroom here, do you see where the arrows are on
2 the far left-hand side of the document that show where the
3 curb cut is from Lot No. 3?
4 A Yes, I do.
5 Q Are those arrows solely on Lot No. 3 showing that
6 ~ou come out actually on Lot No. 3?
7 A Yes.
8 Q How wide is the space there between the building,
9 2he curb that is indicated on the building that is on Lot No.
10 3 and the curb that is indicated to the Denny's Restaurant, do
11 you have a sense of that distance?
12 A That is approximately 25 feet.
13 Q So if someone drove closer to Lot No. 3, you could
14 ~et out without actually being on Lot No. 4?
15 A Yes.
16 MS. GEMMILL: Thank you.
17 THE COURT: Mr. Adler.
18 MR. W. ADLER: Nothing further.
19 THE COURT: You may step down, thank you.
20 MS. GEMMILL: Your Honor, I understand that Ms.
21 ?itnick is now available, so I am going to try this call
22 again.
23 THE COURT: All right.
24 (Witness sworn.)
25
49
1 JOAN PITNICK,
2 having been duly sworn, telephonically testified as follows:
3 DIRECT EXAMINATION
4
5 BY MS. GEMMILL:
6 Q Would you please state your name?
7 A It is Joan Pitnick.
8 Q Where do you currently reside?
9 A 32901 East Carmel Valley Road, Carmel Valley,
10 California.
11 Q Is that where you are presently located?
12 A Yes.
13 Q Is your telephone number 831-659-04787
14 A That is correct.
15 Q Mrs. Pitnick, did you receive a copy of a document
16 from me that is marked Plaintiff's Exhibit 17
17 A Yes, I did.
18 Q Do you have that in front of you?
19 A Yes, I do.
20 Q Can you tell us what that document is?
21 A It seems to be an outline of a Hampden Township
22 deed on the property on the Carlisle Pike at 3 Crossgate
23 Drive.
24 Q You can see there are four lots indicated marked
25 as Lot No. 1, Lot No. 2, Lot No. 3, and Lot No. 4?
1 A That is correct.
2 Q Mrs. Pitnick, after your husband's death, did you
3 2ontrol the entity that owned the lots that are shown on that
4 !xhibit?
5 A I did.
6 Q Then did you later sell those lots?
7 A I did.
8 Q Do you currently own any of the lots that are
9 3hown on the exhibit?
10 A No.
11 Q Mrs. Pitnick, when did your husband pass away?
12 A July 7, 1997.
13 Q Did you have involvement in his business real
14 estate operations before he passed away?
15 A Only in an apartment development and office
_
16 building' and parking garage where I worked in the office, but
17 I wasn't involved in any of other real estate.
18 Q When you said you worked in the office, where was
19 the office located?
20 A Ridley Park Apartments on Erford Road in Camp
21 Hill.
22 Q Prior to your husband's death, had you ever been
23 to the property that is shown as Lot No. 1 on the exhibit?
24 A No.
25 Q After your husband's death, did you have occasion
51
1 to go to that property?
2 A Yes, I took over the business and the offices on
3 Lot No. 1 in the office building.
4 Q Did you move your own office to the building on
5 Lot No. 17
6 A Yes, I did.
7 Q How often did you go to your office on Lot No. 17
8 A Every day, almost every day of the week.
9 Q How did you get access to the building, where did
10 you drive to get to --
11 A I drove in between Denny's, Lot No. 4, and Lot No.
12 3.
13 Q Then where would you park?
14 A In front of the building at Lot No. 1 on Lot No.
15 2.
16 Q When you left, which way did you go to leave?
17 A I left going through Lot No. 3 and Lot No. 4.
18 Q Then which way did you turn when you got to
19 Carlisle Pike?
20 A I turned right, because I lived in Carlisle,
21 Pennsylvania.
22 Q Did you ever see people come and go from Lot No. 1
23 and turn left on to Carlisle Pike?
24 A Yes. Actually, I did also if I, you know, did
25 other buildings in Harrisburg, Pennsylvania, that Gene, my
1 husband, owned.
2 THE COURT: Ms. Pitnick, where was your office
3 again, which lot?
4 A It was in Lot No. l, it was in the office
5 building.
6 THE COURT: All right, thank you.
7 BY MS. GEMMILL:
8 Q Mrs. Pitnick, in the times prior to selling the
9 )roperty --
10 A I have static.
11 Q I could hear that static.
12 Mrs. Pitnick, before you sold the lots that are
13 3hown in the exhibit, did you have occasion to see other cars
14 coming and going from Lot No. 1 across Lots No. 2 and 3?
15 A Of course, all day long.
16 Q When you say all day long, what time --
17 A Well, it was an active office building. You had
18 big companies in there, and that was just the traffic pattern
19 that everyone did. It was assumed that that was the way to
20 get in and out of the building.
21 Q Mrs. Pitnick, did you intend that cars could use
22 Lots 2 and 3 to get out from Lot No. 17
23 A Yes, I did.
24 Q Why was that important to you?
25 A Well, no one ever thought about it, it was
53
1 something that was always done and there didn't seem to be a
2 question that we could not do it. It was all, you know, it
3 was just never anything that entered anybody's mind that that
4 was not the way to go in and out of the building or the
5 property.
6 Q If you exited Lot No. 1 using Crossgate Drive,
7 which is shown at the bottom of the exhibit, could you turn
8 left on to Carlisle Pike?
9 A You mean going past Lot No. 4?
10 Q Yes.
11 A You had to make a right turn, you could not make a
12 left turn.
13 Q All right.
14 A We never used that and I don't know who used it,
15 to be honest with you because everyone went through between
16 Lot No. 4 and Lot No. 3.
17 Q Mrs. Pitnick, do you remember selling the Lot No.
18 1 to Kusic Capital Group?
19 A Yes, I do.
20 Q At the time that you sold that building and that
21 Lot No. 1 to Kusic, did you intend that the Kusics could still
22 go out over Lots No. 2 and 3?
23 A Of course, yes, I did.
24 Q At the time that you sold the property to the
25 Kusics, you still owned Lots No. 2 and 3, didn't you?
54
1 A I owned Lot No. 2 and Lot No. 3, yes, I did.
2 Q It was the next day that you sold those properties
3 to Mr. Christie?
4 A That's correct.
5 Q Did you intend that in the future the Kusics would
6 be able to go out over Lots 2 and 3 to get to the Carlisle
7 Pike?
8 A Yes, I did.
9 Q Did you ever do anything to block tenant or
10 visitors from crossing Lots No. 2 and 3 to get to the Carlisle
11 ~ike?
12 A Never.
13 Q The time that you were involved with the building
14 ~fter your husband's death, were there parking spaces painted
15 on the lot out there?
16 A Yes, there was.
17 Q Were the parking spaces as you saw them similar to
18 what is shown on the exhibit in front of you?
19 A Yes, it was.
20 Q Mrs. Pitnick, you are not a lawyer, are you?
21 A No.
22 Q Prior to your husband's death, you had not had a
23 lot to do with his real estate business?
24 A No, I did not, I was actually a dental hygienist.
25 Q You had legal counsel in connection with the sale
55
1 of these properties?
2 A I did, and township approval.
3 Q All right.
4 You never provided any legal advice to any of the
5 )urchasers of your properties, did you?
6 A Absolutely not.
7 Q Did Mr. Christie ever ask you about traffic going
8 ver Lots No. 2 and 3?
9 A Never to my memory.
10 MS. GEMMILL: Thank you, Mrs. Pitnick. I believe
ll Mr. William Adler will now be asking you some questions.
12 A Thank you.
13 CROSS-EX;LMINATION
14
15 BY MR. W. ADLER:
16 Q Good morning, Mrs. Pitnick, this is Bill Adler.
17 A Good morning, Mr. Adler.
18 Q Just a few questions concerning the testimony you
19 just gave.
20 A Yes, certainly.
21 Q You were present at the May 3, 2000, when Lot 1
22 was sold to the Kusic Capital Group?
23 A Yes, I was.
24 Q Do you recall any discussions of an easement
25 across Lots 2 and 3 for the benefit of Lot 1 at that
56
1 settlement?
2 A No, I really did not, Mr. Adler.
3 Q Then the next day, the May 4, 2000, settlement
4 from yourself to Harry F. Christie, do you recall any
5 discussion concerning an easement over Lots 2 and 3 for the
1 up. As far as I knew, the township had approved everything
2 and it was just a normal sale. I don't think that easement
3 ever came into any question at any time during the sale of the
4 property.
5 Q But you were at that settlement on May 4?
6 A I was, Mr. Adler.
7 MR. W. ADLER: I have no further questions for
8 Mrs. Pitnick.
9 THE COURT: Ms. Gemmill.
10 MS. GEMMILL: I have no more questions for
11 Mrs. Pitnick.
12 BY THE COURT:
13 Q Mrs. ?itnick, I have a question if I might, this
14 is Judge Oler. Were there parking spaces marked on all of
15 these lots?
16 A Yes, there was.
17 Q On Lots 1, 2 and 3?
18 A Yes.
19 Q Were there lines for lanes drawn across Lots 2 and
20 3 to get to the pike?
21 A Yes, there were lines for parking but I don't
22 remember that there was -- if that is the question, I can't
23 remember. Whether there were specific lines actually on the
24 roads to go out, is that what you mean?
25 Q Yes.
58
1 A No, not that I remember, just for parking.
2 THE COURT: Ms. Gemmill or Mr. Adler, do you have
3 any further questions?
4 MS. GEMMILL: If I could.
5 REDIRECT EXAMINATION
6
7 BY MS. GEMMILL:
8 Q Mrs. Pitnick, were you able to determine where to
9 drive between the parking space lines to get out over Lots No.
10 2 and 3?
11 A Well, yes, you could, because the lines for
12 ~arking were marked, and the roads go out quite clear.
13 MS. GEMMILL: Thank you, Mrs. Pitnick.
14 THE COURT: Mr. Adler.
15 MR. W. ADLER: I have nothing further.
16 THE COURT: Ms. Pitnick, thank you very much.
17 ~hat time is it out there?
18 A 8:00 o'clock.
19 THE COURT: Thank you for getting up early and for
20 being with us today. You are excused, thank you. We will
21 take a brief recess and then we will reconvene.
22 (Recess.)
23 THE COURT: Ms. Gemmill.
24 MS. GEMMILL: At this time we would like to call
25 Thomas Gaughen.
59
1 THOMAS W. GAUGHEN,
2 having been duly sworn, testified as follows:
3 DIRECT EXAMINATION
4
5 BY MS. GEMMILL:
6 Q Would you please state your name and address?
7 A Thomas W. Gaughen, business address is P.O. Box
8 686, Camp Hill, Pennsylvania.
9 Q What is your business?
10 A I develop real estate, I own and operate real
11 estate.
12 Q How long have you done that?
13 A Well, let's see, starting in 1972.
14 Q Are you familiar with a parcel of property located
15 at the corner of Carlisle Pike and Crossgate Drive?
16 A Absolutely, that is Lot 4, that is Denny's.
17 Q Are you familiar with the other parcels that are
18 adjacent there, Lot No. 1, 2 and 3 that we have been
19 discussing in court this morning?
20 A I am very familiar, I developed all that.
21 Q Explain what your role was developing the
22 properties that are known on Crossgate Drive as the office
23 building and the Denny's and where there is a Capitol Tuxedo
24 now, what was your role in all that?
25 A A very quick thumbnail description. My father,
60
1 3ack Gaughen, Ernie Latham of Latham Stevens, an insurance
2 company in Harrisburg, George Patterson, EUR Data , these are
3 the men who were the limited partners in a partnership called
4 Pike Development.
5 Pike Development was comprised of those men.
6 was the manager. I had a contract with them to develop the
7 property. I negotiated all the leases, I negotiated the
8 financing, I did all of the work with the township and
9 reported back to these men what I did.
10 Q Mr. Gaughen, when was this development done?
11 A I didn't look at that, but I am going to say we
12 completed that sometime in 1979. You start by acquiring the
13 land and going through the approval processes for the
14 township.
15 Q were you involved in subdividing the land so that
16 there would be Lot No. 1, Lot No. 2, Lot No. 3 and Lot No. 4?
17 A Yes. I was involved with that; and also the
18 acquisition, there was two additional lots on Robert Road.
19 The project had a greater dimension than just the lots that
20 you have been talking about here this morning.
21 Q Why was it that the entire property was subdivided
22 into the Lots 1, 2, 3 and 4, and then the other lots as well?
23 A It was done for financing purposes. At the time
24 when we first started the project we weren't sure of the type
25 of financing we would ultimately be putting in place, so we
1 arbitrarily picked lines to subdivide. That was done solely
2 for the purpose of financing, we weren't sure whether we would
3 be financing the entire 80 acres or whether we would be
4 financing just the individual lots.
5 Denny's Restaurant preferred a stand-alone out
6 parcel for the purposes of their lease, Rea & Derick indicated
7 that as well. Rea & Derick was the first tenant that we put
8 in, which is now the Capitol rental. Then subsequently Rite
9 Aid bought them out, I think it was Peoples, and then it went
10 to Rite Aid.
11 But we were accommodating our tenant, so the
12 subdivision was nothing more than a financing leasing tool to
13 develop the property fully.
14 Q Mr. Gaughen, were you involved in laying out where
15 the buildings would be on the property and the ingress and
16 egress?
17 A Absolutely.
18 Q What was your involvement there?
19 A Well, it started with McCreary when we bought the
20 40 Winks Motel; and when we laid this out, we sketched it out
21 and our first stumbling block was eastbound traffic on the
22 Carlisle Pike, how do you turn left.
23 Q How did you address that stumblin~ block?
24 A Well, we had to get further west of the traffic
25 light. Crossgate Drive as it turned out was too close to the
1 traffic light there at the entrance to the Navy Depot, so we
2 had to get further west. We, through negotiations with the
3 township, selected the area between the Rea & Derick building
4 and Denny's Restaurant, what you are calling here Lot No. 3
5 and Lot No. 4, and that was the area that was selected.
6 In the process of getting the approval of this
7 site plan, there is a dogleg constructed on the right-of-way,
8 and that dogleg allows right-hand turn westbound and it also
9 allows left-hand turn, and it is marked.
10 Now, those markings over the years, they fade
11 away, you have to repaint them and so forth; but it was the
12 intent, our intent to use that for all the properties there,
13 all the users.
14 We couldn't grant ourselves an easement, Your
15 Honor, because, of course, we owned it, so we weren't granting
16 ourselves any easement, it was just the use that we put it to.
17 What we ended up doing is entering into an agreement with the
18 township. The township and the Pike Development had a
19 Cross-Parking Agreement which referred to Lot 1, it referred
20 to Lot 2, it referred to Lot 4, and the two small lots on
21 Robert Road.
22 Q Mr. Gaughen, if I could pause you there for a
23 moment.
24 A Sure.
25 Q What was the reason that you had to have a
63
1 Cross-Parking Agreement between these lots?
2 A Well, it is clear on its face. Our parking spaces
3 ended up on the property line, and the municipality was not
4 going to accept any subdivision plan or constructibn
5 improvement plan that showed parking spaces that were jointly
6 shared by other, you know -- two separate lots, and it had to
7 be clarified. They weren't prepared to approve the plan
8 without clarification. We had to show that we had adequate
9 )arking that could be shared by the property owners or the
10 )roperties, the lots that we created, and that we had adequate
11 .ngress and egress.
12 Q Mr. Gaughen, did the office building itself have
13 enough parking alone without parking on Lot No. 2?
14 A Yes, it had adequate parking, but Lot No. 2 was
15 the culprit here. We had to show that we could satisfy the
16 ~ requirements for Lot No. 2. To do that we had to
17 ~nter into this Cross-Parking Agreement which memorialized the
18 lses of all of the access.
19 We did that two ways: One, in the Cross-Parking
20 Agreement itself; and two, on the improvement construction
21 )lan, which I would like to add is part and parcel to the
22 )roperty, the only document that the township accords as a
23 ~ubdivision plan. But along with the subdivision plan is the
24 improvement construction plan and there is a very important
25 detail to that plan which is on record with the township, and
1 I would never purchase a piece of real estate without first
2 visiting the township and asking them to see what it is that I
3 am obligated to do on that property and it is a matter of
4 record with the township.
5 So anybody who is buying real estate, if they have
6 an interest, would go to the local township and ask to see
7 what restrictions might be on that property.
8 Q I understand what you are saying and I apprectiate
9 that testimony. Do you still have a copy of the Cross-Parking
10 Agreement for Lots No. 2 and 3?
11 A No. I surrendered all original documents, I gave
12 every single original document to Gene Pitnick.
13 Q I want to hand you what we will ask the court
14 reporter to identify as Plaintiff's Exhibit No. 6.
15 A Okay.
16 (Plaintiff's Exhibit No. 6 marked for
17 identification.)
18 MS. GEMMILL: Would the Court like a copy as well?
19 THE COURT: It is up to you.
20 MS. GEMMILL: If I can hand it up.
21 THE COURT: Thank you.
22 BY MS. GEMMILL:
23 Q Mr. Gaughen, could you identify what Plaintiff's
24 Exhibit 6 is?
25 A This is a letter on our letterhead.
65
1 Q Is that your signature at the bottom of the page?
2 A Yes, I wrote that letter to Charley Kemberling,
3 who chaired the Plans Review Committee of Hampden Township,
4 and KengDerling was also the manager of the township, and he
5 was also the codes enforcement officer.
6 Q Does this letter reference the Cross-Parking
7 Agreement that you discussed earlier?
8 A Yes, it does.
9 Q In order for the Cross-Parking Agreement to be in
10 effect, traffic had to be able to travel between the two lots,
11 is that a fair statement?
12 A Absolutely. That was the purpose of the
13 Cross-Parking Agreement was to memorialize this.
14 Q Mr. Gaughen, did you attend a township meeting in
15 1978 where the township specifically requested that
16 Cross-Parking Agreement?
17 A Yes, I did.
18 Q Are you familiar, have you seen the minutes of the
19 township of that meeting?
20 A I refreshed my memory. It was 30, 25 years ago,
21 whatever.
22 MR. W. ADLER: I am going to object to this
23 exhibit. In discovery proceedings, I asked for everything
24 before the trial. Up until now we have gotten everything
25 before the trial through interrogatories, I have never seen
1 ~his.
2 MS. GEMMILL: Your Honor, it was brought to court
3 2his morning, it was the first time I have ever seen it as
4 well.
5 THE COURT: Mr. Adler, do you want a continuance
6 to have some time to review it?
7 MR. W. ADLER: Probably 10 minutes at this time
8 would be enough.
9 THE COURT: Certainly, why don't we do that.
10 MR. W. ADLER: Thank you.
11 THE COURT: You might want to speak to Mr. Gaughen
12 since you didn't have a chance at discovery at it.
13 All right, take a brief recess.
14 (Recess.)
15 THE COURT: Mr. Adler.
16 MS. GEMMILL: I think there was an objection
17 pending.
18 .MR. W. ADLER: We have reviewed the document and
19 we are willing to let Mr. Gaughen continue with his testimony
20 in view of the document.
21 THE COURT: All right, thank you.
22 BY MS. GEMMILL:
23 Q Mr. Gaughen, I want you to first stay on Exhibit
24 6, which is your letter, and I also want to hand you what has
25 been previously identified as Defendant's Exhibit No. 5. In
1 your letter you reference two lines. Can you identify where
2 those lines are by Exhibit No. 5?
3 A Yes.
4 Q Between which lots?
5 A Between lot -- between Lot 1 and 2 and between Lot
6 2 and 3.
7 Q How are those lines identified on the subdivision
8 )lan that is Defendant's Exhibit 5?
9 A Meets and bounds, typical description.
10 Q Are those the same meets and bounds that are in
11 'our letter which is Defendant Exhibit 6?
12 A That is exactly what I am referring to, those
13 lines. Those are the lines that you would cross over from Lot
14 No. 1 to pass over to Lot No. 2 to pass over to Lot No. 3.
15 Q Mr. Gaughen, did you attend a township meeting in
16 March of 1978 in which the Cross-Parking Agreement was
17 liscussed?
18 A I would have attended a number of meetings, both
19 ~lanning Commission meetings, what they call a Planning Review
20 meeting and Board of Commissioners' meetings and zoning
21 meetings, I attended many, many meetings.
22 Q Did you recently review your files and find the
23 minutes of what meeting in particular --
24 A Yes, the zoning meeting.
25 Q Let me hand you what I am going to ask the court
1 reporter to identify as Plaintiff's Exhibit 7.
2 (Plaintiff's Exhibit No. 7 marked for
3 identification.)
4 BY MS. GEMMILL:
5 Q Mr. Gaughen, is Plaintiff's Exhibit 7 the minutes
6 of the Hampden Township Zoning Hearing Board meeting that you
7 attended March 1, 19787 I will ask you to look at the bottom
8 of the second page of the minutes.
9 A Right. Yes, these are the minutes from that
10 meeting, yes.
11 Q This also was in your files?
12 A Yes.
13 Q At that meeting you discussed the Cross-Parking
14 Agreement arrangement?
15 A Yes.
16 Q Mr. Gaughen, did you operate these lots in one
17 economic unit?
18 A Yes, we did.
19 Q I want to ask you now to look at a document that I
20 will have identified as Plaintiff's Exhibit 8.
21 (Plaintiff's 8 marked for identification.)
22 MS. GEMMILL: I have one for the Court as well.
23 BY MS. GEMMILL:
24 Q Mr. Gaughen, can you identify what the two pages
25 are of Plaintiff's Exhibit 8?
69
1 A Yes. I will start by identifying the second page,
2 which is what is called an Improvement Construction Plan.
3 This shows the entire site with buildings on it and parking
4 and access ways. The first page of that two-page exhibit is
5 the blowup of one of those lots, it was what we called the Rea
6 & Derick building, Lot 4, and I think that is the subject here
7 today. That is the Capitol rental.
8 Q You said Rea & Derick Lot 4, is that Lot 4 or Lot
9 No. 3?
10 A Sorry, Lot 3, yes; Denny's is 4. This is the one
11 that showed the utilities going in, how we would get the
12 utilities to those properties.
13 Q Is there an indication on the first page of the
14 exhibit as to a common driveway between Lot 4 and Lot 3?
15 A Yes, there is, it says right there common drive.
16 Q If you turn to the second page of the exhibit,
17 that shows all of the lots together. Does that also --
18 A Yes, it does. These plans, counselor, if I might
19 add, are works in progress. When you develop a property, for
20 example, if you notice the change in the way the parking was
21 arranged, this changes as time goes through, you get comments
22 from the Planning Commission, you get comments from the staff,
23 taking about the township staff.
24 As you go through this, changes are made and those
25 -- but what is consistent on every plan you look at, whether
1 it is an earlier plan from August of '78, whether it is a
2 later plan, we always indicate the common driveway between the
3 Denny's Restaurant and the Rea & Derick.
4 Q So the record is clear, on the second page of
5 Exhibit 8 there is an actual specific reference where it says
6 common driveway?
7 A Yes, there is a reference, it is on both -- on
8 Exhibit 8, Plaintiff's Exhibit 8, it shows on both sheets.
9 Q You understood that common driveway was for use of
10 all the lots indicated on Exhibit 8?
11 A Absolutely. The genesis of it is very clearly
12 understood for anyone who is interested in either asking about
13 it or listening to it.
14 Q Mr. Gaughen, at any time were any barriers placed
15 upon the lots that would prevent traffic from Lot No. 1 from
16 going across Lots 2 and 3 to make that left-hand turn on to
17 Carlisle Pike?
18 A Absolutely not.
19 Q What was your intent as part of the original
20 development of this project with respect to how traffic would
21 flow to and from the office building on Lot 17
22 A It became necessary to develop the
23 ingress/egress, the subject of today's hearing, Your Honor.
24 We had to develop it at that point because the township didn't
25 let us use Crossgate Drive to make a left turn on the Carlisle
1 further west and away from the traffic light. We did that,
2 ~nd nobody ended up ever using Crossgate Drive and everybody
3 uses that access between the two buildings of Lot 2 and 3 and
4 Lot 4.
5 Q Mr. Gaughen, when was the last time that you were
6 ~hysically present at this site?
7 A Saturday afternoon.
8 Q Did you remain familiar with this site after the
9 )roperty was sold to the Pitnick entity?
10 A Well, yes, because I owned the land to the rear.
11 Q Were you out at the property, the land to the
12 Fear, say early 2000 prior to the time that Mrs. Pitnick sold
13 off these lots?
14 A Yes, I have been on that site on a regular basis
15 for the last 25, almost 30 years.
16 Q Can you describe for the Court in the past several
17 years what you have seen with respect to traffic going to and
18 from the office building and Lot No. 17
19 A The same thing I have seen from day one, all the
20 traffic leaves the site between Lots 3 and 4. It leaves Lot
21 1, the office building in the back, Your Honor, that is the
22 only way to get out on the Carlisle Pike, you turn left.
23 Q About how many cars have you seen go across there
24 on a daily basis?
25 A Well, you see the traffic that leaves the office
1 in the rear, it drives across Lot No. 2, makes that small
2 left-hand turn and immediately makes the right turn out to the
3 control monitors there on the Carlisle Pike. Any time you are
4 out there you will observe that. Anybody who spends more than
5 five minutes out on that site, Your Honor, is going to see
6 that everyone uses that access. That is the way we laid it
7 out, that is the way the township required it and anything to
8 the contrary just flies in the face of common sense and what
9 is visible out there.
10 Quite frankly, I am puzzled why we would be
ll wasting your valuable time up here today, Your Honor, there
12 has got to be other cases more pressing than this one.
13 MS. GEMMILL: Thank you. I have no further
14 questions for Mr. Gaughen.
15 THE COURT: Mr. Adler.
16 CROSS-EXAMINATION
17
18 BY MR. W. ADLER:
19 Q Plaintiff's Exhibit 7, the minutes that you
20 referred to, it refers to a Cross-Parking Agreement, not an
21 easement agreement, is that correct?
22 A Yes. We find it very difficult, and I am not
23 being factitious, but we find it extremely difficult to park a
24 vehicle without being able to get to that parking space, so we
25 included in that parking agreement the access to the parking.
1 It is just the title of the agreement.
2 Q You don't have this agreement?
3 A No, I wouldn't have it any more because I
4 surrendered all those documents to, again, Gene Pitnick, our
5 copies, our file copies, Pike Development. When my dad and
6 his partners had the interest in selling the property to Gene
7 Pitnick, when that occurred, I surrendered all original
8 documents. I went up to Erford Road where he had his office,
9 I delivered all the original documents, give him all my files.
10 I kept a small number of copies, not much more of some of the
11 work I had done early on for the development of the project;
12 but I gave him all those pertinent file jackets.
13 Q As far as you know, this parking agreement was
14 never recorded --
15 A Well, I don't know what the township -- there are
16 a lot of documents that are of public record at the township
17 that are not recorded. You don't want to walk into something
18 without going to a township and asking what they know about a
19 )roperty. There are a lot of properties around in all the
20 ~urrounding county areas, you better walk in the township and
21 ask them what is going on. Just don't go on the basis of any
22 single recorded subdivision plan, because that isn't the whole
23 picture.
24 Q Of course, the plans that you presented us with
25 were changed on the final subdivision plan that is recorded?
1 A No, that is not correct.
2 Q Exhibit 8 was changed on the final recorded
3 ~ubdivision plan?
4 A Exhibit 8 was changed on the final recorded --
5 let's not confuse the picture here.
6 Q Let me ask some simple questions.
7 A Yes.
8 Q The western boundary on the first page of Lot 8,
9 that would be the western boundary of Lot 3, and it is also
10 shown on the second page of Exhibit 8, it is different than
11 the recorded subdivision plan, is it not? I just want an
12 ~nswer to that question.
13 A It is different in that the line was adjusted,
14 res, that is correct.
15 Q There is also another line that was adjusted if
16 ~ou look at the second page of Exhibit 8, and that is the line
17 to the north of Denny's Restaurant, that is different than
18 what is shown on the final subdivision plan as well, that is
19 recorded?
20 A Right. Right, right, okay. If you are going to
21 ask me these questions, do you want me to then explain why
22 those lines are moved?
23 Q If counsel wants to explore that, that is fine;
24 but your exhibit is different than what is actually recorded
25 at the courthouse?
1 A My exhibit?
2 Q Your Exhibit 8 is different than the recorded
3 subdivision plan?
4 A Well, the recorded subdivision plan --
5 Q Just yes or no?
6 A It is different because it doesn't show the
7 improvement construction on the site, which is part of a land
8 development plan.
9 Q The lot lines are different on your Exhibit 8
10 versus the recorded subdivision plan --
ll A No, not altogether. The question has to be -- you
12 have to separate your question there, counselor.
13 Q I will ask the questions, I would like the answers
14 from you. Just answer this question. Are the lot lines on
15 your Exhibit 8 different than the final recorded subdivision
16 plan, yes or no?
17 . A I can't answer that question, because there are
18 more than one recorded subdivision plan. You are showing me
19 different plans here, you are mixing and matching here,
20 counselor.
21 Q I am referring to the recorded subdivision plan
22 that has been --
23 A Are you talking about Defendant's Exhibit No. 5?
24 Q -- that was recorded April 17, 1978.
25 A Is that the one that is book 32, page 80?
1 Q Yes.
2 A That is what has got the little blue sticker here,
3 Exhibit 5. That plan has property lines on it that are
4 different from Exhibit No. 8. There are some lines that are
5 different, yes. They are different locations, that is
6 correct.
7 Q That plan makes no reference to a common driveway,
8 the recorded plan that I just referred to, the April 17 plan,
9 is that correct?
10 A It makes no reference to a common driveway between
11 Lot 3 and 4, that is correct.
12 Q Do you know or do you not know whether that
13 alleged parking agreement has been recorded or not that is
14 referred to in the March 1, 1978, minutes?
15 A I wouldn't know that. Although it is not alleged.
16 I am testifying that the agreement exists.
17 Q You never had any contact with Mr. Christie
18 concerning the purchase of Lots 2 and 3 before today, have
19 you?
20 A No, he never availed himself of my knowledge and
21 experience of the site. If he called me, I would have been
22 happy to refer him to the township and the Cross-Parking
23 Agreement that existed and that the easement existed.
24 MR. W. ADLER: May I have 30 seconds, Your Honor.
25 THE COURT: You certainly may.
78
1 (Discussion held off the record.)
2 MR. W. ADLER: No further questions, Your Honor.
3 THE COURT: Ms. Gemmill.
4 MS. GEMMILL: Nothing further.
5 BY THE COURT:
6 Q I assume the township ordinance requires that each
7 lot that is approved for subdivision have access to a public
8 street?
9 A Yes, Your Honor.
10 Q On Defendant's Exhibit 5, in your view, what is
11 the public street that was intended to be the access for the
12 lots, particularly for Lot 17
13 A Your Honor, this subdivision plan served several
14 purposes, and having seen this subdivision plan after many
15 years -- I have not seen this plan for many years -- my memory
16 is refreshed as to one of the more important reasons we did
17 the subdivision.
18 Earlier I testified we did it for financing
19 purposes, which is correct; but my memory is refreshed as to
20 the importance of the subdivision plan and why we really put
21 this on record. There was a huge issue about those dash
22 lines, you see that cul-de-sac on Lot No. 1, and you see the
23 numbers 6, 7, 14, 12, 11, 10, 9, that was a preexisting
24 recorded subdivision. We had to go through what is called
25 re-subdivision.
79
1 If you will notice the plan says, refers to, it
2 says there in the center, final re-subdivision plan. The
3 reason that was necessary is because we had to extinguish the
4 rights of any of those land owners to the west of their right
5 to drive over and have access to this property. Those were
6 paper lots, if you want to say, but we had to extinguish that.
7 That was a very important reason that we subdivided that to
8 get rid of their rights that they might exercise.
9 Crossgate Drive, it was our intention to have that
10 as an access, both eastbound and westbound when we first
11 subdivided this property, when we first developed it. But,
12 Your Honor, the problem came when the township would not
13 permit us to turn left. We had to then create another access,
14 and that was the one that was ultimately developed between
15 Lots 3 and 4, what is known to us, what we always refer to as
16 between Denny's Restaurant and Rea & Derick, because we
17 couldn't turn left.
18 Commercial Union was our first anchor tenant in
19 that building, they occupied the entire second floor of that
20 55,000 square foot building and we had to give them westbound
21 access off the site and that is what was created. That
22 reflects on the Improvement Construction Plan.
23 The genesis of it is that every Improvement
24 Construction Plan that we submitted to the township with
25 changes, amendments, every one of them showed that common
80
1 driveway. The subdivision plan doesn't show it. That is very
2 easily explained, because you don't show buildings and parking
3 lots on subdivision plans, those are and construction
4 improvements that are shown on a different plan. That plan is
5 not customarily recorded, you go to the township to see that.
6 Q That was not deemed a land development, the
7 building that you were building?
8 A The construction improvement plan would have been
9 deemed a land development plan, and it was not the custom of
10 Hampden Township. That has changed in recent years, as a
11 matter of fact, just a couple years I was up here in front of
12 another court on that very issue, the deemed approved plan, in
13 front of Judge Guido.
14 Q In any event, at that time, back in those days,
15 your building of the Rea & Derick building was not a land
16 development, or at least it didn't need to be recorded and
17 improved --
18 A Right. The land development plans were not
19 recorded -- at that time they referred to it as construction
20 improvement plan or an improvement construction plan, and you
21 would go in and you had to do these things. Very little
22 information was put on the subdivision plans when it actually
23 referred to the improvement.
24 Crossgate Drive, for example, there are profiles
25 on that road. Earlier there was a question about why this
81
1 Crossgate Drive was never taken over by the township, I can
2 answer that.
3 THE COURT: Does either counsel want that
4 answered?
5 MR. W. ADLER: No.
6 MS. GEMMILL: No, thank you, Your Honor.
7 THE COURT: I shouldn't inject myself in to ask
8 for that answer.
9 A That is fine.
10 BY THE COURT:
ll Q This lane between two buildings would not qualify
12 by width, I gather, as access for purposes of subdivision to
13 lots?
14 A Your Honor, I can testify to you right now that at
15 that time it would. The zoning -- it is a function of the
16 underlying zoning district. And in that zoning district at
17 that time you could have an access, a road, if you will,
18 between commercial properties.
19 Crossgate Drive was built as the primary access
20 to answer other obligations we had to the land owner in the
21 rear. At that time there was 226 acres to the rear. This is
22 before 581, this is before I bought the property from Joe
23 Brenner in the rear, he wanted access to the Carlisle Pike and
24 he wanted an improved road, that is what we gave him. What we
25 couldn't give him was westbound left-hand turn. We then had
82
1 to give him the right to cross over Lot 1, over Lot 2, over
2 Lot 3 and 4 to get to the Carlisle Pike to make a left-hand
3 turn. The person to the rear has that access as well.
4 Q Joe Brenner owned what?
5 A Joe Brenner owned the piece that you see Crossgate
6 Drive on, he owned that, it was a little over two acres. It
7 went the whole way from the Carlisle Pike back to the very
8 end.
9 Q He didn't own Lots 1, 2, 3 or 4?
10 A No.
11 THE COURT: Does either counsel have any
12 questions?
13 MS. GEMMILL: No, Your Honor, I do not.
14 MR. W. ADLER: Yes, Your Honor.
15 THE COURT: Okay.
16 CROSS-EXAMINATION CONTINUED
17
18 BY MR. W. ADLER:
19 Q You had stated that improvements such as the
20 parking spaces and buildings are not shown on the recorded
21 subdivision plans, correct?
22 A Correct.
23 Q But easements are shown on the recorded
24 subdivision plans?
25 A Easements that you create, yes. If you create an
83
1 easement, you would show it. Those are easements for passage,
2 for water, sewer, what have you, vehicular passage if they are
3 among or between different land owners. You don't create an
4 easement for yourself.
5 Q Was Crossgate Drive owned by a separate land owner
6 from Lots 1, 2, 3 and 4?
7 A We owned it all, we owned everything.
8 Q So Crossgate Drive on here it is reflected 20 foot
9 driveway easement.
10 A Now, that note had to do with John Wolf, the
11 adjoining property owner. That was an easement that went to
12 him. If you had looked a little further, you would have found
13 the Moogig easement that came out of Crossgate Development out
14 of Pittsburgh, who owns now the motel, that had been a Ramada,
15 and then it changed to the Holiday Inn. That is an easement
16 for him, that is not an easement for anyone on this property.
17 That gives him the right to come out on to Crossgate Drive.
18 Q Also there is a sanitary sewer easement shown on
19 this plan, on the recorded subdivision plan of April 177
20 A Yes, there is. You see, that would be done on a
21 subdivision plan because of it being municipal.
22 MR. W. ADLER: No further questions, thank you.
23 THE COURT: Ms. Gemmill.
24 MS. GEMMILL: Nothing further, thank you.
25 THE COURT: May this witness be excused?
84
1 MS. GEMMILL: Yes, Your Honor.
2 THE COURT: You may stay or leave as you choose,
3 thank you. Ms. Gemmill, any further witnesses?
4 MS. GEMMILL: The only additional witnesses at
5 this time we would like to call is Mr. Christie. I understand
6 Mr. Adler is going to call him in his case-in-chief, and to
7 expedite, I believe he further agreed to go ahead with his
8 case-in-chief and then I would do a cross-examination of
9 Mr. Christie.
10 THE COURT: You are not prepared to rest?
11 MS. GEMMILL: No, I am not prepared to rest; but
12 to expedite witnesses getting off and on the stand, I would
13 suggest that we do it that way.
14 THE COURT: Do you want to move for the admission
15 of your exhibits so far?
16 MS. GEMMILL: Yes, Your Honor, why don't we do
17 that. What I would like to do is offer into evidence all of
18 the exhibits that had been identified, including the ones
19 identified by Mr. Adler, which had been marked as Exhibits 1
20 through 8, variously identified them as either Plaintiff's or
21 Defendant.
22 THE COURT: The exhibits that I have for Plaintiff
23 are Plaintiff's Exhibits 3, 4, 6, 7 and 8.
24 MS. GEMMILL: Yes, Your Honor.
25 THE COURT: Mr. Adler, do you have any objection
85
1 to the admission of those exhibits?
2 MR. W. ADLER: No objection, Your Honor.
3 THE COURT: Plaintiff's Exhibits 3, 4, 6, 7 and 8
4 are admitted.
5 Mr. Adler, do you want to move the admission of
6 any exhibits since Ms. Gemmill asked that some of yours be
7 admitted?
8 MR. W. ADLER: We have one or two more, so we
9 could wait until we have them all on the record.
10 THE COURT: So you want to wait?
11 MR. W. ADLER: We will wait.
12 THE COURT: We will take a recess for lunch and
13 resume at 1:30.
14 (Lunch recess).
15 THE COURT: Mr. Adler.
16 MR. W. ADLER: I would like to call Harry Christie
17 to the stand.
18 HARRY F. CHRISTIE,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21
22 BY MR. W. ADLER:
23 Q Please state your full name and address?
24 A Harry F. Christie, 3310 Calle Del Montana, Sedona,
25 Arizona.
86
1 Q What is your occupation?
2 A Retired.
3 Q Before you were retired, what was your occupation?
4 A CEO of the company.
5 Q How long have you been involved with real estate
6 development?
7 A 20 plus years.
8 Q You are familiar with the Lots 1 through 4 that we
9 have been talking about all day?
10 A Yes.
11 Q Around when did you decide to purchase Lots 2 and
12 3?
13 A I think that is probably around January of 2000.
14 Q Then you entered into an agreement of sale that
15 has been introduced as Exhibit 2 on February 29th of 2000?
16 A Yes.
17 Q You inspected the properties before you bought the
18 properties, correct?
19 A Yes.
20 Q We have been talking about an alleged easement all
21 morning long. Did you, in fact, see cars and trucks cross
22 your property?
23 A Yes.
24 Q Let me clarify that so the answer is clear on the
25 record. Did you see cars and trucks cross your property
87
1 coming from Lot 1 going across Lots 2 and 3 to get to the
2 Carlisle Pike?
3 A Yes.
4 Q Your settlement occurred on May 4, 2000?
5 A Yes.
6 Q For the purchase of these Lots 2 and 3?
7 A Yes.
8 Q Could you generally describe to us what happened
9 at that settlement?
10 A Well, from the various research and seeing those
11 vehicles going across the property, I had a concern about
12 easements. I know the purchase agreement said they had to be
13 documented easements or recorded easements, but I still had
14 concerns. I asked Craig Adler prior to the closing, they went
15 over it a little bit, he said I should bring it up and ask
16 questions of Steven Weingarten, who represented Joan Pitnick.
17 So in the beginning of the settlement I brought
18 the subject up and I asked Mr. Weingarten specifically were
19 there any easements on this property. He went into
20 explanation of various types of easements and why they did not
21 apply.
22 THE COURT: Who did?
23 A Mr. Weingarten.
24 BY MR. W. ADLER:
25 Q When you asked were there any easements on this
88
1 property, did you make it a little more specific as to
2 easements across Lots 2 and 3 for the benefit of Lot 1 or did
3 you just generally talk about easements?
4 A We generally talked about easements. In any
5 event, he went into the various kinds and why it did not
6 apply. Craig Adler said there are no recordable ones, other
7 than a couple that were obvious, such as the cross easement
8 between Lots 3 and 4.
9 Q So you went over it with Steve Weingarten, you
10 asked the question, he responded?
11 A Yes.
12 Q And you also went over it with Craig Adler at the
13 settlement?
14 A Yes, everybody was in the closing room together,
15 yes. It was 2, 4, I think there were 6 of us there.
16 Q Joan Pitnick was in the closing room as well?
17 A Yes, she sat next to me.
18 Q When this question of easements was raised, was
19 there any response from Joan Pitnick?
20 A Yes, she said that she did not grant any easements
21 to anyone.
22 THE COURT: Who was Mr. Adler representing, was he
23 representing you?
24 A Yes.
25 THE COURT: All right.
89
1 identification.)
2 BY MR. W. ADLER:
3 Q What is Defendant's Exhibit 107
4 A This was a Cross-Easement Agreement between Lots 3
5 and 4. It affects the common driveway between the two
6 properties, which is currently Denny's, and on my side it is a
7 warehouse and Capitol Tuxedo.
8 Q So this only affects Lots 3 and 4?
9 A That's right.
10 Q This is the common driveway between the two?
11 A That's right.
12 Q There is no reference to Lot 1 in this
13 Cross-Easement Agreement?
14 A That is correct.
15 Q Both these agreements, Defendant's Exhibits 9 and
16 10, are recorded in the Cumberland County recorder of deeds?
17 A Yes.
18 Q Those recording references are at the bottom of
19 those pages?
20 A Yes.
21 THE COURT: Who were the parties to Defendant's
22 Exhibit 107
23 A The original parties were Maureen Rill and Joan
24 Pitnick and Martha Rill -- I am sorry, Morris Rill and Martha
25 Rill.
1 BY MR. W. ADLER:
2 Q To clarify that, that is Gene Pitnick Development
3 Company, L.P.?
4 A Yes.
5 Q Along with the Rills?
6 A Right.
7 Q Rather than Pitnicks individually.
8 MR. W. ADLER: I have no further questions for
9 Mr. Christie.
10 THE COURT: If I might ask a couple.
11 BY THE COURT:
12 Q When did this discussion occur during the course
13 of the settlement, if you recall?
14 A In the beginning of the settlement.
15 Q Not at the end?
16 A Not at the end, no.
17 THE COURT: Ms. Gemmill.
18 MS. GEMMILL: Thank you.
19 CROSS-EXAMINATION
20
21 BY MS. GEMMILL:
22 Q Good afternoon, Mr. Christie, you had been to the
23 property Lots 2 and 3 before you purchased the property from
24 Joan Pitnick?
25 A Yes.
1 Q In fact, you testified that it was back in January
2 of 2000 that you began thinking about buying this property?
3 A That is correct.
4 Q It was in February of 2000 that you had entered
5 the agreement of sale?
6 A That is correct.
7 Q So a month or so had passed before you entered the
8 agreement of sale?
9 A Yes.
10 Q Then another month and a little bit more passed
11 before you had the closing, two months before you had the
12 closing on May 4, 2000?
13 A Yes.
14 Q During that time between May when you first
15 started thinking about the property and the closing date of
16 May 4, 2000, you had been to the property a number of times?
17 A That is correct.
18 Q You saw a number of cars driving across Lots 2 and
19 3 to get to the Carlisle Pike?
20 A That is right.
21 Q You saw all the cars that parked around Office
22 Building No. 17
23 A Right.
24 Q You knew that they were heading that way, across
25 the properties that you were going to buy in order to make a
94
1 left-hand turn or even a right-hand turn on the Carlisle Pike?
2 A I did not know that there was a left-hand turn
3 restriction; but, yes, I did see them cross to make right-hand
4 turns.
5 Q You didn't know there was a left-hand turn
6 restriction on Crossgate Drive?
7 A That is right.
8 Q You never went out and saw the pork chop that
9 showed that you couldn't turn left on Crossgate Drive?
10 A I never had a reason to go to Crossgate Drive.
11 Q You certainly knew that between Lots 3 and 4
12 people were driving through there?
13 A That is between --
14 Q Between Lots 3 and 4.
15 A Yes.
16 Q And those people were coming from Lot 17
17 A Yes.
18 Q They were coming across Lot 2?
19 A That is correct.
20 Q In fact, let me hand you what we have marked as
21 Plaintiff's Exhibit 1 if you could approach the witness, Your
22 Honor.
23 THE COURT: Certainly.
24 BY MS. GEMMILL:
25 Q Mr. Christie, you have seen Plaintiff's Exhibit 1
1 )efore, haven't you?
2 A Yes.
3 Q In fact, a portion of that is even attached to the
4 ~greement of sale, is that correct?
5 A Yes.
6 Q On Plaintiff's Exhibit 1, if you look up at the
7 top off of Lots 1, 2, 3 and 4, you will see a reference to Lot
8 No. 1, Lot No. 2 and Lot No. 3 that indicates that they are
9 )roperties of Harry F. and Barbara J. Christie?
10 A Yes.
ll Q So you owned a property that was adjacent to Lot
12 Jo. 3?
13 A That is correct.
14 Q And from those properties that you owned you could
15 ~ee the traffic that went back and forth across Lot No. 2 and
16 3?
17 A No. It may appear that way, but you really don't
18 see that, you don't notice it at all.
19 Q From the property that you owned that were
20 adjacent you could see the office building, couldn't you?
21 A If you like walk to the corner of the lot you
22 could see the office building but you wouldn't see it in the
23 normal course of activity.
24 Q You knew that office building was out there
25 though, didn't you?
96
1 A Absolutely.
2 Q Despite your knowledge of the traffic going back
3 and forth as early as January 2000, is it fair to say you knew
4 as early as January of 2000 there was traffic going back and
5 forth?
6 A Right.
7 Q You waited until the date of closing to raise this
8 issue with the seller?
9 A To raise the issue with my attorney, yes.
10 Q You waited to talk to your attorney until the
11 actual date that you were scheduled to sit down together and
12 get the deed and pay the money?
13 A Yes.
14 Q Your lawyer was Craig Adler?
15 A That's right.
16 Q Your lawyer was not Steve Weingarten?
17 A That's right.
18 Q You don't know Steve Winegarten's expertise in
19 real estate law?
20 A No, I don't.
21 Q You were not relying on Steve Weingarten to give
22 you legal advice?
23 A I was relying on him to give me an answer to the
24 question, were there any easements on that property that I was
25 not aware of.
97
1 Q You were asking that at closing?
2 A I asked that at the start of closing. I had asked
3 it before closing, but I was advised to ask him directly at
4 closing.
5 Q You never asked Mr. Weingarten about implied
6 easements, did you?
7 A No, he went over all the easements and why they
8 lid not apply.
9 Q Mr. Weingarten didn't talk about implied easements
10 ~hat day, did he?
11 A He talked about prescriptive, he talked about
12 necessity, he talked about implied, he talked about all the
13 easements.
14 Q You didn't ask Mr. Weingarten whether the use of
15 the access across Lots No. 2 and Lot No. 3 created an implied
16 easement?
17 A I didn't ask him that way. What he said and his
18 explanation was that Crossgate's office building, Lot No. 1,
19 had access to Carlisle Pike by Crossgate Drive and they did
20 not have a need, they did not have a specific need to go
21 across, there wasn't any necessity to go across there, it was
22 a habit.
23 Q But you knew there was a habit out there?
24 A I knew there was a habit out there and I asked at
25 settlement about putting a fence up. And they said that it
1 was my right to do so or they felt that I had to go to the
2 township, get a permit, but I could do it, there was no
3 restriction to doing that.
4 THE COURT: Who said that?
5 A Mr. Weingarten.
6 BY MS. GEMMILL:
7 Q So you were also relying on Mr. Weingarten to give
8 ~ou legal advice as to what you could do with the township?
9 A No, that wasn't legal advice what I could do with
10 2he township, that was a statement that according to his
11 understanding of easements that I could do that because the
12 rules changed when there was not a cor~mon ownership of four
13 lots. Once they started putting -- getting different owners
14 in there, that we were basically starting from scratch on what
15 we could do.
16 Q You never asked Joan Pitnick at the closing what
17 her intent was with respect to cars crossing Lots 2 and 3 from
18 Lot 17
19 A I didn't ask the question of intent. She offered
20 the fact that she granted no easements for any reason to
21 anybody.
22 Q Do you know if Joan Pitnick understands what an
23 easement is?
24 A Yes.
25 Q You do know that?
lq?
1
2 BY MR. W. ADLER:
3 Q Without the use, without the cars going across
4 Lots 2 and 3 for the benefit of Lot 1, there is nothing
5 physically on the ground to indicate any type of right-of-way
6 or easement, is there?
7 A No, there is not. As a matter of fact, you have
8 to make two left-hand turns if you are coming from that Lot 1
9 parking lot to even get to the little roadway between Lots 3
10 and 4. It is not a straight line.
11 MR. W. ADLER: I have nothing further, thank you.
12 THE COURT: Ms. Gemmill.
13 MS. GEMMILL: Recros$.
14 RECROSS-EXAMINATION
15
16 BY MS. GEMMILL:
17 Q You said there is nothing on the ground. There
18 are parking lines that are painted on the ground, aren't
19 there?
20 A Yes, there are.
21 Q The people you saw traveling from Lot 1 across Lot
22 2 and Lot 3, they were traveling in the areas where there
23 weren't parkinq lines?
24 A They travel over the areas where there are parking
25 lines, both.
102
1 Q There was nothing physically that prevented
2 ~omeone from traveling across Lot No. 1, across Lot No. 2,
3 across Lot No. 3 to get out to the Carlisle Pike?
4 A No, that is what started this whole case, I wanted
5 to put up a fence.
6 Q At the time that you purchased the property there
7 was nothing there that prevented someone from driving across?
8 A No.
9 Q People didn't seem to have much difficulty doing
10 that, did they, driving across Lots 2 and 3 to get to the
11 Carlisle Pike?
12 A I don't know what you mean by difficulty. There
13 have been several accidents there.
14 Q You testified about people having to leave, people
15 knew how to get from Lot No. 1 out to the Carlisle Pike over
16 Lots No. 2 and 3, didn't they?
17 A Yes, they did.
18 MS. GEMMILL: Thank you.
19 MR. W. ADLER: Nothing further, Your Honor.
20 THE COURT: You may step down, thank you. Mr.
21 Adler.
22 MR. W. ADLER: Final witness, I would like to call
23 Craig Adler to the stand.
24
25 CRAIG I. ADLER,
103
1 having been duly sworn, testified as follows:
2 DIRECT EXAMINATION
3
4 BY MR. W. ADLER:
5 Q Please state your name and address for the Court.
6 A Craig I. Adler, my business address is 125 Locust
7 Street, Harrisburg, PA, 17101.
8 Q Could you tell us what your employment history has
9 been?
10 A I am an attorney, have been an attorney since
11 1988, the first 5 years in Philadelphia with the law firm of
12 Fox, Rothschild, O'Brien & Frankel. Since then in its various
13 forms, with the firm of Adler and Adler.
14 Q What is the focus of your practice today and for
15 the past nuraber of years?
16 A I do real estate, a lot of title insurance work.
17 In Philadelphia I did a lot of commercial work, I do some
18 commercial work here as well.
19 Q Did you search the title for Lots 2 and 3 for
20 Mr. Christie?
21 A Yes. I had a search prepared, I have a full-time
22 employee who actually does the searches.
23 Q You reviewed her work?
24 A Yes.
25 Q Just a few specific questions concerning that.
104
1 Was there only one subdivision plan recorded for these four
2 lots in the Cumberland County Office of Recorder of Deeds,
3 that plan which was entered as an exhibit here April 17, 1978.
4 That would have been --
5 A Plan book 32, page 80?
6 Q Yes.
7 A Yes, that is the oldest plan that appeared of
8 )ublic record.
9 Q Just so the record is clear, that is Defendant's
10 ~xhibit 5.
11 Mr. Gaughen referenced minutes from a township
12 meeting which referenced a Cross-Parking Agreement that was
13 between Lots 1 and possibly Lots 2 and 3. Was there anything
14 of record concerning a cross-parking easement between Lots 1
15 and 2 or 3?
16 A No, there was no parking easement or any other
17 easement that you could consider a parking easement filed in
18 at that time. The only easement that we found was a public
19 record which was a declaration of easement for parking, and
20 that was from May of 1993.
21 Q That was the exhibit that was entered as
22 Defendant's Exhibit 9?
23 A That is correct.
24 Q There was also that recorded Cross-Easement
25 Agreement for the common driveway that is referred to as
105
1 Defendant's Exhibit 107
2 A Yes, and that was the only easement that I would
3 consider an access easement found of public record.
4 Q That only affected Lots 3 and 4, that Defendant's
5 Exhibit 10 only affected Lots 3 and 4?
6 A That is correct, and if I may call your attention
7 to the exhibit at the end of that recorded document, it
8 clearly shows the driveway being over 3 and 4 and ending at
9 the boundary of Lot 2.
10 Q You did not find any evidence of any easement that
11 would indicate there was an easement over Lots 2 and 3 for the
12 benefit of Lot 1 for ingress and egress purposes?
13 A No.
14 Q Mr. Gaughen raised the question as to whether you
15 can show an easement on a plan when all the lots are owned by
16 the same owner. Can you show an easement on a plan when there
17 is that common ownership among the lots?
18 A Yes, common ownership among lots is not an
19 impediment to the creation of any type of easement. In fact,
20 we have an example, this declaration of parking easement that
21 is Defendant's Exhibit 9, there was common ownership in that
22 case and they created that easement.
23 But easements are created or shown on plans all
24 the time. In fact, when you do a subdivision plan by
25 definition there is a common owner and so they are shown all
106
1 the time.
2 Q So streets shown on a subdivision plan are
3 easements as well?
4 A Certainly, until they are dedicated.
5 Q In the deed it was referenced that -- let me pull
6 the deed out and get the exact language.
7 A Plaintiff's Exhibit 3.
8 Q You have the deed there?
9 A Yes.
10 Q The UNDER AND SUBJECT language that says: Or that
11 a physical inspection or survey of the premises would reveal.
12 A Yes.
13 Q How would you interpret that?
14 A I would distinguish a physical inspection, meaning
15 an inspection of the physical conditions of the property, as
16 opposed to a use. A physical inspection can be at any point
17 in time. Basically, the way I interpret that is you look for
18 signs, you look for paintings, you look for defined driveways.
19 Q Certainly, a survey would not show a use, a survey
20 would just show the conditions on the ground?
21 A Yes.
22 MR. W. ADLER: I have no further questions for Mr.
23 Adler.
24 THE COURT: Ms. Gemmill.
25 MS. GEMMILL: Thank you, Your Honor.
107
1 CROSS-EXAMINATION
2
3 BY MS. GEMMILL:
4 Q Mr. Adler, on the day of closing Harry Christie
5 walked into your office and said, There are people driving
6 across here, is there an easement, is that basically what
7 happened?
8 A That is basically what happened.
9 Q You went over the title report and looked at the
10 written easements that were there?
11 A Yes.
12 Q And you didn't see a written easement that crossed
13 Lots 2 and 3 for the benefit of Lot 17
14 A That's right.
15 Q An implied easement is not a written easement, is
16 it?
17 A No.
18 Q An implied easement is something that arises
19 because of a use that occurs?
20 A Well, there is certainly an issue with regard to
21 use, there are, obviously, other factors such as physical
22 conditions and so forth.
23 Q A physical inspection of a property can show use
24 of a property?
25 A Yes.
108
1 Q At the closing, you didn't discuss implied
2 easement was Mr. Weingarten, did you?
3 A No. The way that the discussion evolved -- and I
4 really consider it more of a collaborative discussion as among
5 attorneys and people who were just trying to figure out the
6 correct answer -- but the way it evolved was we started the
7 closing, I think Harry might have been there a little early,
8 so my title report was basically pulled apart and we were
9 looking at the recorded documents and so forth, we were also
10 looking at the plan that was filed as part of the subdivision
11 and -- can you repeat the question, I started going too far
12 off.
13 Q You didn't discuss implied easements with Steve
14 Weingarten?
15 A No.
16 Q Actually, I don't recall the rest of the
17 question.
18 A Maybe the court reporter does.
19 Q But you were having a discussion with Mr. Christie
20 before Mr. Weingarten arrived with Mrs. Pitnick?
21 A Yes. Mr. Christie called me prior to the closing,
22 and so, basically, by the time they got there, the documents
23 were on the table and we were discussing them when they got
24 there.
25 Q You were not expecting Mr. Weingarten to give your
109
1 client legal advice as to whether or not an implied existed,
2 were you?
3 A No. Like I said, what I was expecting was -- the
4 reason I asked Harry to ask the question at the closing, was
5 we were just looking for facts so that we could determine the
6 appropriateness of the discussion and the legal analysis.
7 Q One of the facts that you had was that that was
8 traffic going across there?
9 A That is correct.
l0 Q You had reviewed the deed prior to the time of
11 closing, had you not?
12 A Yes.
13 Q You heard a review of that language that was read
14 by Mr. Christie earlier?
15 A Yes. The physical inspection language?
16 Q Yes.
17 A Yes.
18 Q In fact, an implied easement that had never
19 entered your consciousness at the time of the closing, you
20 were not thinking about implied easements?
21 A No, certainly not.
22 Q You never discussed implied easements at the time
23 that Joan Pitnick and Steve Weingarten were in the room?
24 A No, it was a more general discussion then just the
25 limited prescriptive easement requirements, it was a general
110
1 discussion as to easements generally.
2 Q You generally discussed easements, but you didn't
3 talk about what an implied easement was?
4 A No.
5 Q Is that correct, you did not talk about what an
6 implied easement was?
7 A Yes, I don't recall a discussion of implied
8 easements.
9 Q You didn't stop the closing until you had an
10 opportunity to evaluate whether or not an implied easement
11 could have arisen as a matter of law, did you?
12 A I did not stop the closing, we gleaned some facts
13 which I deemed to be pertinent and we continued.
14 Q You were not relying upon Joan Pitnick to give
15 legal advice to your client, were you?
16 A No, only relying on Joan Pitnick to give us facts
17 appropriate for legal analysis.
18 Q That fact was whether or not she had entered into
19 a written easement similar to the Declaration of Easement that
20 is marked as Defendant's Exhibit 9?
21 A More than just whether she had entered into any
22 written easements, more generally speaking without,
23 admittedly, the briefs on cases that we have since submitted
24 were not in front of us, but the nature of the discussion was
25 still along the lines of easements generally and not limited
1 to written ones.
2 Q You didn't ask Joan Pitnick what her intent was
3 with respect to traffic going across Lots 2 and 3 after she
4 sold the property?
5 A I don't recall her having any extensive
6 participation, it was really more discussion amongst lawyers
7 with the documents in front of us.
8 Q So you don't know what Joan Pitnick's
9 understanding is with respect to easements as they are legally
10 construed?
11 A That is fair to say.
12 Q Joan Pitnick is an elderly woman whose husband had
13 died and he was the real estate man, right?
14 A Right.
15 Q Defendant's Exhibit 9, I think that you still have
16 that in front of you, that declaration of easement?
17 A Yes.
18 Q This was something that you had reviewed prior to
19 the closing?
20 A Yes.
21 Q So you knew that when the Rills -- sorry, I didn't
22 mean to say Exhibit 9.
23 A Exhibit 107
24 Q Exhibit 10.
25 A Yes.
112
1 Q Exhibit 10, you had reviewed Exhibit 10 prior to
2 the closing?
3 A And during the closing, that is one of the
4 documents I pulled out.
5 Q So you knew that the Rills, when they bought Lot
6 No. 4, had bothered to take the trouble to get Joan Pitnick to
7 sign a written Cross-Easement Agreement?
8 A I don't know whether it was as part of the
9 purchase; but, yes, certainly this is a commercial property
10 where you would expect the easements to be properly
11 documented.
12 Q Defendant's Exhibit 10 is the Cross-Easement
13 Agreement that took place when Mrs. Pitnick sold Lot No. 4 to
14 the Rills?
15 A I don't know that that was at that time, but I
16 have no reason to doubt it.
17 Q At that time Mrs. Pitnick still owned Lots 3 and 2
18 in November of 19997
19 A Yes.
20 THE COURT: Do we know when Lot 4 was sold?
21 MS. GEMMILL: It was approximately the time of the
22 Cross-Easement Agreement I believe, Your Honor.
23 THE COURT: Is there any stipulation to that?
24 MS. GEMMILL: Well, Your Honor, Defendant's
25 Exhibit 10 indicates that Rill is the simple owner of Lot No.
113
1 4; so as of this date Rill had purchased Lot No. 4.
2 MR. W. ADLER: I will stipulate to that.
3 BY MS. GEMMILL:
4 Q So Defendant's Exhibit 10 shows a party buying a
5 lot and making sure there was something in writing?
6 A Absolutely, that is the point.
7 Q But the Kusics didn't do that?
8 A No, they did not.
9 Q But yet there was a use that existed over Lots 2
10 and 3 at the time the Kusics bought their property?
11 A I was out to the property once prior to closing
12 just to look it over and I wasn't there long enough to observe
13 the use, I can't testify to that.
14 Q Mr. Adler, at the closing, you didn't tell Steve
15 Weingarten that there were cars driving across Lots 2 and 3,
16 did you? That was something Mr. Christie had discussed with
17 you prior to the time Mr. Weingarten got there?
18 A I didn't tell him but it was -- I don't recall
19 telling him, but I would have to say that I believe that he
20 was aware of it because that is why the issue was raised.
21 Q But you didn't specify that at the closing that
22 day?
23 A I don't recall saying the words, I don't recall
24 Harry saying the words; but I do have to say that based on the
25 way the conversation evolved, Steve had to -- I wouldn't say
1 had to -- based on the way the conversation evolved, I would
2 have expected that he was aware of the use before the
3 conversation.
4 Q Mr. Weingarten talked to you about easements by
5 9rescription and told you that it couldn't be an easement by
6 )rescription because it had only been severed for one day?
7 A Yes.
8 Q Would it be fair to say that was the bulk of your
9 iscussion was in terms of having sold it the day before to
10 Kusics?
11 A I wouldn't say that was the bulk of it, but that
12 certainly ended it.
13 MS. GEMMILL: Thank you, that is all that I have.
14 THE COURT: Mr. Adler.
15 REDIRECT EXAMINATION
16
17 BY MR. W. ADLER:
18 Q Throughout all this easement discussion, no one
19 said that the tenants or owners of Lot 1 needed access to the
20 Carlisle Pike over Lots 2 and 3, did they?
21 A No.
22 MR. W. ADLER: I have no further questions.
23 THE COURT: Ms. Gemmill.
24 MS. GEMMILL: No further questions, thank you.
25 BY THE COURT:
115
1 Q Mr. Christie said that he had brought up the
2 subject of putting a fence along the boarder of the lot he was
3 buying, and I think the indication was nobody said that
4 couldn't be done. Do you recall any discussion about a fence?
5 A I do recall a discussion about a fence. I can't
6 for certain say that it happened in the closing. We had
7 discussions prior to the closing; and there was only so much
8 we could resolve prior to the closing, so that is why it went
9 into the closing as well. But I don't recall -- I know what
10 happened, I don't know when it happened or who was present.
11 THE COURT: Mr. Adler or Ms. Gemmill.
12 MS. GEMMILL: Nothing further.
13 MR. W. ADLER: No further questions.
14 THE COURT: You may step down, thank you.
15 MR. W. ADLER: We have no further witnesses, Your
16 Honor.
17 THE COURT: Do you want to move the admission of
18 ~our exhibits?
19 MR. W. ADLER: Yes, I would like to move for the
20 ~dmission of Defendant's Exhibits 2, 5, 9 and 10.
21 MS. GEMMILL: No objection.
22 THE COURT: Okay, Defendant's Exhibit 2, 5, 9 and
23 [0 are admitted. Any further witnesses, Mr. Adler?
24 MR. W. ADLER: No further witnesses.
25 THE COURT: Ms. Gemmill.
1 MS. GEMMILL: We would like to call Steve
2 Weingarten as a rebuttal witness.
3 STEVEN J. WEINGARTEN,
4 recalled as a witness in rebuttal,
5 having been previously sworn, testified as follows:
6 DIRECT EXAMINATION
7
8 BY MS. COLONNA:
9 Q Mr. Weingarten, you were in the courtroom today
l0 and you heard Mr. Christie testify about the closing when he
11 purchased the properties that he did purchase, is that
12 correct?
13 A I did hear that, yes.
14 Q During his testimony Mr. Christie said that he
15 specifically discussed with you implied easements. Do you
16 recall hearing Mr. Christie say that?
17 A I remember him testifying to that, yes.
18 Q Mr. Weingarten, to your recollection, did you
19 discuss implied easements with Mr. Christie at the closing?
20 A I absolutely did not discuss implied easements
21 with Mr. Christie at the closing.
22 Q How is it that you are so certain of that fact?
23 A Actually, I hate to admit it in open court, but I
24 am not an expert on implied easements. I have been to a
25 seminar on prescriptive easements, so therefore, I probably
1 felt I had some knowledge about that and discussed that at
2 closing; but I wouldn't have been in a position to discuss
3 implied easements at the close.
4 Q Mr. Weingarten, had you visited the Lots 2 and 3
5 or even Lot 1 prior to the closing?
6 A Again, I was representing the seller. There was
7 no need for me to go out to this property. I am not sure that
8 I ever visited this property before closing.
9 Q Did you know at the closing that cars were driving
10 from Lot 1 across Lots 2 and 3 to get to the Carlisle Pike?
11 A I sure didn't have any particular reason to know
12 that, that is not something that anyone had ever raised with
13 me.
14 Q Steve, do you recall hearing Mr. Christie testify
15 that he brought up putting up a fence, do you recall him
16 testifying to that?
17 A I remember the testimony, yes.
18 Q Do you recall any discussion of a fence at
19 Mr. Christie's closing?
20 A Again, I don't recall any discussion at the
21 closing of a fence.
22 Q Did you recall Joan Pitnick making any statements
23 to Mr. Christie at the closing regarding any easements?
24 A I don't recall Joan making statements about
25 easements, I would have been surprised if she had.
1 MS. COLONNA: Thank you, that is all I have.
2 THE COURT: Mr. Adler.
3 MR. W. ADLER: I have no questions.
4 BY THE COURT:
5 Q When Mr. Christie brought up this issue of
6 easements, was it clear that he was talking about cars
7 traveling over the property?
8 A In terms of this discussion about the easements,
9 and I think it is consistent with even Craig Adler's
10 testimony, it was -- certainly from my side of the table, it
11 was not raised as a deal point. We were at closing, again, my
12 recollection is that it was after we had completed closing.
13 Again, there wasn't too terribly much to do at closing; but it
14 was the discussion of easements, in my view, was something
15 that was after the fact, it was not that big a deal. I don't
16 recall whether or not we were discussing cars. Again, it
17 simply was not a part of closing, and I simply do not have a
18 recollection as to the nature of the discussion.
19 Q When the discussion did occur, I gather the money
20 hadn't arrived yet to pay for the transaction?
21 A Right. My recollection is that we were -- the
22 closing probably took, you know, a few minutes, it was not --
23 it was a simple real estate transaction, there had been a
24 couple months of due diligence, there was a period of waiting
25 for the wire to hit. Again, when closing ended, when it -- it
119
1 was before the wire hit we were having this discussion, that
2 is true.
3 Q I gather you wouldn't regard the closing as over
4 until the money had arrived?
5 A True, absolutely not. The closing is not -- we
6 had not closed, because the money had not arrived.
7 THE COURT: Okay. Mr. Adler, or Ms. Gemmill.
8 MR. W. ADLER: I have no further questions.
9 MS. COLONNA: I have a couple of questions.
10 DIRECT EXAMINATION CONTINUED
11
12 BY MS. COLONNA:
13 Q To the best of your recollection, at the time that
14 this discussion of easements was held, was it your
15 understanding that the wire transfer was in process?
16 A Absolutely. We were waiting for the wire to hit.
17 The instructions had already been given for the wire to
18 arrive, and we were having a discussion while we were waiting
19 for the wire to arrive.
20 MS. COLONNA: Thanks, that is all I have.
21 THE COURT: Mr. Adler.
22 CROSS-EXAMINATION
23
24 BY MR. W. ADLER:
25 Q That wire would have gone to the title insurance
1 agent's account, correct, and a check would have been written
2 to the sellers from him?
3 A I believe that -- I assume that is what was
4 happening, was a wire from Mr. Christie's bank to the title
5 company and the title company then would have disbursed. I
6 assume that is the case, I don't know for a fact.
7 MR. W. ADLER: Thank you, nothing further.
8 THE COURT: Ms. Colonna.
9 MS. COLONNA: Nothing further.
10 THE COURT: May this witness be excused?
11 MS. GEMMILL: Yes.
12 THE COURT: Mr. Adler, any objection?
13 MR. W. ADLER: No.
14 THE COURT: You may stay or leave as you choose,
15 thank you.
16 MS. GEMMILL: Your Honor, we have no further
17 witnesses.
18 THE COURT: Mr. Adler.
19 MR. W. ADLER: We have no further witnesses.
20 THE COURT: Did counsel wish the transcript to be
21 prepared and to submit any briefs, further briefs?
22 MR. W. ADLER: I would like that to be the case.
23 MS. GEMMILL: Yes, Your Honor, we would like to do
24 that.
25 THE COURT: How much time would you like following
1 the filing of the transcript for the briefs?
2 MS. GEMMILL: I believe two weeks would be enough
3 time for us, Your Honor.
4 MR. W. ADLER: That would be fine.
5 MS, GEMMILL: Would those be simultaneous
6 submissions?
7 THE COURT: That would be reasonable I think. We
8 will enter this order: AND NOW, this 7th day of October,
9 2002, upon consideration of the Plaintiff's complaint in
10 equity in the above-captioned matter, and following a trial
11 held on this date, the record is declared closed and the
12 matter is taken under advisement.
13 Pursuant to a request of both counsel, the
14 stenographer is requested to transcribe and file the notes of
15 testimony from today's proceeding, and counsel are afforded a
16 period of 14 days following the filing of the transcript
17 within which to submit any additional briefs which they care
18 to on the issues which they perceive to exist in the case.
19 Court is adjourned.
20 (Court adjourned at 2:24 p.m.)
21
22
23
24
25
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on the
above cause and that this is a correct transcript of same.
Fatricia C. Ba'f"l~ett
Official Stenographer
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and directed
to be filed.
Date esley Oi~-?~]T'., J. ~
t~-'
112:12 112:25 113:4 115:20 2000 [1] 61:20
1166 2001
11933 2002 [131 41:10 41:11 46:9 66:25
[1] 7B:23 21 547
[1] 103:6 220 55,000
[1] 103:~ [1] 30:16 686
17108 2:24 [~]
~9 3
~1] 40:10
1972 3
~cid~nts [2 's t10:9 Anahor A~su~
[1] 102:13 ~L .Sion [1] 79:18 [6] 21:6 22:9 24:22 78:6
~oo~ng ~; t ~n [2] 40:22 52:19
[1] 120:1 [1] 110:23 ~BW~ Atta~
[1] 7:17 ~vi~ ~0~ At~
~isition ~vis~ [1] 108:8 [3] 21:13 42:3 105:6
[1] 60:18 [1] 97:3 ~=~t At~
~TI~ ~feot [~] ~0:20 Atto~' s
~ ~f~o~ [1] 95:17 Atto~B
~tivi~ ~fe~ts [~] ~04:~ Au~st
[1] 95:23 [2] 9~:s
~tu~ ~fo~ [1] z7:21 Au~orit~
~tion ~t
[1] 26:13 [1] ~20:~ ~o~a~ Avail~le
~o~1 ~o [~] 64:~ [~] 48:~
~ss [1] 9:25 ~r~ria~ A~rr~
B~rmfiainl Building (91 4:14 10:7 10:'5 10:16 [3] 30:19 61:25 117:3
[2] 5:23 6:1 [5 12 5:17 31:6 34:10 10:19 10:24 11: 12 110: closed
Benefit 34 ,6117 38:23 36:25 37: 23 [4] 34116 119:6 121111 1251
[15] 13:10 16120 18115 30:5 3 1';16 37115 38:3 38113 40: Cant~ 11)
30110 41122 43117 55:25 56: 9 40114 4114 4311 46:23 48: [1] 79:2 Closa~
6 56114 88:2 89110 10114 8 48=9 50116 5113 5114 5119 C~O [1] 48113
105112 107113 51114 52:5 52117 52:20 53:4 [1] 86:4 Closast
53:20 54113 59:23 62:3 63:
[6] 15:4 15:6 28:6 28:24 29: 18 72:21 79:19 79:20 80:7 [3] 8:16 115:6 116122 Closing
12 119113 80=7 80115 80115 93:22 95: Ca=tsinly [94] 14123 15115 15116 151
BettaT 20 95:22 95:24 97118 [17] 5:25 16118 26:2 30112 17 15119 16115 17115 17119
[1] 74=20 Builc~ngs 42:22 55:20 66:9 77:25 941 17121 17122 17123 17124 171
20 2114 27:8 27117 28:4 28: 72:3 80:2 81111 82:20 10 21 19111 19124 19124 25115
20 44121 45:6 46117 48:8 511 Built CERTIFICATION 25118 26114 27:6 27:7 27112
11 53115 58:9 62:3 6311 65= [1] 81119 [1] 122:1 28:8 28:22 29:1 29:17 29118
29:19 3112 3113 3114 3117
10 67:4 67:5 67:5 67:5 69: Bulk Certify 36;16 87114 88114 88116 93:
14 70:2 71110 72=3 72:20 77: [1] 12214
91=4 91:5 91:10 93114 94111 [1] 8121 [1] 65:3 1 10714 108=1 10817 108121
94113 94114 99:20 10119 104: Businass Chlulaa 109:4 109111 109=19 11019
13 104114 [9] 2211 38113 40:8 50113 [1] 66112 113111 113114 113121 11516
Big 5112 54:23 59:7 59:9 10316 Cha/lge 115:7 115:8 11519 116110
[2] 52:18 118:15 B~ [1] 69:20 116:19 116:21 117:2 117:5
[1] 55:16 Buya~ [7] 43:11 74:25 75:2 78:4 117:23 118:11 118:12 118:13
Billed [31 9:5 9:23 22114 80110 83115 98112 118117 118122 118125 11913
[21 23:20 23:24 Buying Changes
Bit [41 64:5 93:2 11314 115:3 [3] 69121 69:24 79:25 Closings
[3] 43:11 87:15 93:10 Charl~r [1] 25:12
Bleak C [11 65:2 Coattail
Chao, k [1] 41:6
[31 54:9 61121 61123 California [11 120:1 Cod~s
Blooking [3] 7:3 7:6 49:10 Chiaf [1] 65:5
[1] 8:6 C&11a ]1] 84:6 Collaborative
Blowup
[1] 69:5 [1] 85:24 Chi~d [11 108:4
Blua C~ £1] 99111 Collaa~u~
[2] 50:20 59:8 Choosa [2] 4:6 32:4
[1] 77:2
]21] 3:7 25:7 25110 2611 26:
[3] 67:20 68:6 71122 [1] 7:5 Cho~ 3 29:24 30:22 30:23 31113
Boa~:ie~ Cannot [11 94=8 31:17 32:4 32:7 116:8 118:1
[1] 11512 [1] 5:9 Ch~istia 11919 119112 119120 120:8
Book Capital [67] 3:5 4:3 5:2 6:13 8:6 12019 124115 125:21
[2] 76:25 10415 9 3311 33116 48:12 42:2 53: 24 18:13 18118 18119 1919 [6] 42:16 52114 8711 94116
Buth~ 18 55:22 12411 125:1 19:21 2115 22111 25117 25: 94118 10118
[11 11216 Capitol 23 26:11 27:8 27117 27:22
Buttom [4] 59:23 61:8 69:7 91:7 27:23 28:2 29:3 29:4 30:20 Co~]~o=nta
31110 35:18 35119 37:7 39: [1] 3:16
[4] 53:7 65:1 68:7 91118 Cn~ 25 54:3 55:7 56:4 56:8 56= Co~nts
Bought [1] 37:22 14 56:23 77117 84:5 84:9 85: [2] 69121 69:22
[10] 7116 15121 6119 61119 Cn~ 16 85118 85:24 92:9 92:22 C~a=~
7111 7113 81122 86117 11215 [6] 20:22 35:25 47:4 47:4 94:25 95:9 99118 103120 107:
113110 121117 125:16 4 108119 108121 109=14 1131 [1] 37:20
[[1] 41:4 CaBe. Clo.. [1] 22:5 ~
¢-~ 8 35:17 36:1 36:7 ~6:9 36: [9] 26:9 34:12 3§:10 90:9
[1] 43:8 CoL. Lcx3ratQ Craig ill 34:4
[1] 45:19 Direotly Driveway (ii 65:10
Defined [1] 97:3 [12] 69:14 70:2 70:6 70:9 Efforts
[11 e5:24 Disouss Driving Either
~iffi~alty Driv~ Easily [21 50:20 74:6
[10] 13:16 13:17 13:18 13: 3 91'22 94:21 94:25 95:6 99: [1] 62:10 [81 3:2 17:11 26:20 120:25
20 1411 35:9 35:11 35116 50: 17 8 10413 104110 1041 Fair 121;10 12h16 125:9 125115
3 72:9 21 22 105:1 105:5 10517 [41 65:11 96:3 I .1 11418 Follows
Equitable 115: 22 F~ml liar Foot
[3] 14:16 35112 36:4 Exhibits [121 12:25 1318 13:12 40:23 [2] 79:20 83;8
[9] 3:5 121110 12413 12414 23 8511 85:3 85:6 91115 1151 18 72;8 86:8 99118 [1] 122115
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KUSIC CAPITAL : IN THE COURT OF COMMON PLEAS OF
GROUP, L.L.C., : CUMBERLAND COUNTY. PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION- EQUITY
HARRY F. CHRISTIE, :
Defendant : NO. 01-2813 CIVIL TERM
IN RE: ADJUDICATION
BEFORE OLER, J.
DECREE NISI
AND NOW, this ~f~ day of January, 2003, upon considcrafion of
Plaintiff's complaint in the above-captioned matter, following a non-jury trial, and
for thc reasons stated in the accompanying opinion, the court finds in favor of
Defendant and against Plainti~..
BY THE COURT,
~j~esley Oler~_~., J.
vA-Ielen L. Gcmmill, Esq.
100 Pine Street
P.O. Box 1166 /~ ~
Harrisburg, PA 17108
Attorney for Plaintiff ,~
,-/William L. Adler, Esq.
P.O. Box 11933 O] '0t'] -0 .,~
Harrisburg, PA 17108
Attorney for Defendant
February 26~ 2003~ Final audgnmnt is hereby entered in favor of the Defendant and
against the Plaintif£ Pursuant to PA.R.C.P Rule No. 1066 and 1066.4. The Plaintiff
has failed to take the action directed.
'~.,
,r-,.,...~ · ' · ~ ,,
L: .~',l '.'~ i.- ,., ,..rd
KUSIC CAPITAL : IN THE COURT OF COMMON PLEAS OF
OROUP, L.L.C, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION- EQUITY
:
HARRY F. CHRISTIE, :
Defendant : NO. 01-2813 CIVIL TERM
INRE: ADJUDICATION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., January ,2003.
In this equity action Plaintiff seeks a declaratory judgment and injunction
premised upon the existence of an implied easement.I A nonjury trial was held in
the matter on October 7, 2002?
At trial, Plaintiff contended that an implied easement existed for traffic
from a lot owned by Plaintiff to access the Carlisle Pike across two lots oxvned by
Defendant? Such access would offer certain advantages to Plaintiff over an
alternate means of access to the Pike? For the reasons stated in this opinion, the
court will find in favor of Defendant and against Plaintiff.
FINDINGS OF FACT
1. Plaintiff is Kusic Capital Group, L.L.C., a Pennsylvania limited liability
company having its principal place of business at 4201 Crums Mill Road,
Harrisburg, Dauphin County, Pennsylvania?
~ Plaintiffs Complaint, filed May 9, 2001.
'~ By agreement of counsel, the trial record was supplemented to include the record from a June 4,
2001. hearing on Plaintiffs petition for a preliminary injunction. See N.T. 4, Trial, October 7,
2002 (hereinaRer N.T. __ (Oct. 7, 2002)). The petition for a preliminary injunction had been
denied. Order of Court, June 4, 2001.
3 N.T. 5, Preliminary Injunction Hearing, June 4, 2002 (hereinafter N.T. (June 4, 2001 ).
4 N.T. 14-15 (June 4, 2001).
s N.T. 12 (Oct. 7, 2002) (agreement of counsel as to truth of certain allegations of Plaintiffs
complaint): Plaintiffs Complaint, filed May 9, 2001, para. I.
2. Defendant is Harry F. Christie, an adult individual residing at 3310 Calle
Del Montana, Sedona, Arizona.6
3. Plaintiff is the owner of a 3.6 acre tract of land, containing an office
building, in Hampden Township, Cumberland County, Pennsylvania, and having
an address of 3 Crossgate Drive, Mechanicsburg, Pennsylvania.7
4. Defendant is the owner of two tracts of land in Hampden Township,
Cumberland County, Pennsylvania,8 one being a 1.3 acre tract containing a
parking lot and having an address of 1 Crossgate Drive, Mechanicsburg,
Pennsylvania,9 and the other being a 1.2 acre tract of land containing a building
with two stores, and having an address of 5515 Carlisle Pike, Mechanicsburg,
Pennsylvania.~°
5. The tracts appear as three of four lots on a certain subdivision plan filed
on April 17, 19787~
6. On the plan, the four lots comprise a larger rectangular tract located in
Hampden Township, Cumberland County, Pennsylvania.~2
7. The rectangular tract is situated at the intersection of the Carlisle Pike
and Crossgate Drive. 13
8. The rectangular tract is bounded on the south by the Carlisle Pike (a
short side of the rectangle), and on the east by Crossgate Drive (a long side of the
rectangle)?
6 N.T. 86 (Oct. 7, 2002).
7 N.T. 17 (June 4, 2001); N.T. 12 (Oct. 7. 2002); Plaintiff's Complaint, filed May 9, 2001, paras.
4-7.
8 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9. 2001. paras. 8-12.
9 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001. paras. 9-10.
~o N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, paras. 11-12.
~ Defendant's Ex. 5 (Oct. 7, 2002); Plaintiff's Ex. I (June 4, 2001 ).
n Defendant's Ex. 5 (Oct. 7, 2002); Plaintiff's Ex. I (June 4, 2001).
~-~ Defendant's Ex. 5 (Oct. 7, 2002); Plaintiff's Ex. I (June 4, 2001 ).
.n Defendant's Ex. 5 (Oct. 7, 2002); Plaintiff's Ex. I (June 4, 2001).
2
9. An observer on the Carlisle Pike looking north faces Lots 3 and 4, which
front on the Carlisle Pike; behind Lots 3 and 4 is located Lot 2, occupying the
middle portion of the rectangle and fronting on Crossgate Drive (on the fight);
behind Lot 2 is located Lot I, occupying the back part of the rectangle and also
fronting on Crossgate Drive (on the right).~s
10. Plaintiff is the owner of Lot I (at the back of the rectangle and most
distant from the Carlisle Pike); Defendant is the owner of Lots 2 (in the middle of
the rectangle) and 3 (one of the lots at the front of the rectangle and fronting on the
Carlisle Pike).~6
11. The street address of Plaintiff's Lot I is 3 Crossgatc Drive?7 the street
address of Defendant's Lot 2 is I Crossgate Drive?g the street address of
Defendant's Lot 3 is 5515 Carlisle Pike?
12. Lots 3 and 4 (which front on thc Carlisle Pike) share direct access to
the Pike, but Lots I and 2 have only indirect access on the plan to the Carlisle
Pike, via Crossgate Drive?
13. The direct access to the Carlisle Pike from Lots 3 and 4 permits traffic
entering the Pike to proceed in either direction on the highway, but the indirect
access from Crossgate Drive permits traffic entering the Pike to proceed in a
westwardly (to the right) direction only?
~s Defendant's Ex. 5 (Oct. 7. 2002); Plaintiff's Ex. I (June 4, 2001).
~ N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, paras. 4, 8.
~7 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, para. 5.
~8 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001. para. 9.
~ N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001. para. I 1.
.,0 Defendant's Ex. 5 (Oct. 7, 2002); N.T. 26-28 (June 4, 2001).
"~ N.T. 26-28 (June 4, 2001); Defendant's Ex. 5 (Oct. 7, 2002). The entry onto the Carlisle Pike
from Crossgate Drive is controlled by a "pork chop" traffic island configuration, directing traffic
flow to the right, mandated by the Pennsylvania Department of Transportation for safety reasons.
N.T. 15, 20-21, 28 (June 4, 2001); N.T. 95 (Oct. 7, 2002).
3
14. Plaintiff seeks a declaratory judgment and injunction recognizing the
existence of an implied easement for traffic to directly access the Carlisle Pike
across Defendant's Lots 2 and 3 from Plaintiff's Lot 1.22
15. The implied easement sought by Plaintiff would be beneficial and
convenient to the use of its land? but would obviously limit the uses to which
Defendant could put his land, particularly Lot 2.
16. The pertinent background of the properties in question may be
summarized as follows:
a. At one time Plaintiff's lot and Defendant's lots were
under the common ownership of the Cumberland County
Industrial Development Authority?
b. At the time, Gene Pitnick Development Company, L.P.,
or a predecessor, had an equitable interest in the properties25
and apparently exerted functional control over their
management and disposition?
c. Some traffic since at least 1990 from Lot 1 accessed the
Carlisle Pike by crossing Lot 2 and proceeding along the
common border of Lots 3 and 4.2?
d. However, no markings on Lots 2, 3 or 4 identified any
route for such traffic and the course of a given vehicle was
consequently ill-defined?
Plaintiff's Complaint, filed May 9, 2001, Counts 1-11.
N.T. 14-15 (June 4, 2001 ).
N.T. 12-16 (Oct. 7, 2002); PlaintifFs Exs. 3-4 (October 7, 2002).
N.T. 12-16 (Oct. 7, 2002); PlaintifFs Complaint, filed May 9, 2001. para. 3.
See N.T. 35-37 (Oct. 7, 2002).
N.T. 12-15, 18, 23 (June 4, 2001); N.T. 47-48, 52 (Oct. 7, 2002).
N.T. 15-16, 27 (June 4, 2001 ); N.T. 43-44, 58-59, 102 (Oct. 7, 2002).
4
e. By an agreement of sale dated February 29, 2000,
Defendant agreed to purchase Lots 2 and 3 for $1,040,000.00.29
f. Under the agreement of sale, the lots being purchased by
Defendant were to be "subject only to easements and
restrictions of record which shall not interfere with
[Defendant's] intended use of the [lots] for commercial
purposes and other related and compatible uses.''3°
g. The easement claimed by Plaintiff is not of record and
would obviously affect adversely many forms of commercial
development of Lot 2?
h. On May 3, 2000, the common owner conveyed Lot 1 to
Plaintiff for a price of $2,425,000.007
i. The deed to Plaintiff for Lot 1 did not refer to any right-
of-way across Lots 2 and 3 in favor of Lot I for access to the
Carlisle Pike?
j. In this regard, the deed instead noted that the conveyance
included "the right to use Crossgate Drive.''34
k. The deed to Plaintiff for Lot 1 referred to the aforesaid
subdivision plan?
29 Defendant's Ex. 2 (Oct. 7, 2002). The actual sale price appears to have been $1,026,110.00.
Defendant's Ex. 3 (Oct. 7, 2002).
30 N.T. 23-24 (Oct. 7, 2002); Defendant's Ex. 2 (Oct. 7, 2002).
3~ N.T. 106 (Oct. 7, 2002).
3: N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint. filed May 9, 2001, para. 4; Plaintiff's Ex. 4 (Oct.
7, 2002). The deed was dated April 6, 2000, but se~lement occurred on May 3, 2000. Plaintiff's
Ex. 4 (Oct. 7, 2002); N.T. 25 (June 4, 2001). The settlement had been delayed for a week at
Plaintiff's request. N.T. 35 (Oct. 7, 2002). Lot 4 had previously been sold to a third party. N.T.
29 (June 4, 2001).
.;3 Plaintiff's Ex. 4 (Oct. 7, 2002).
34/d.
as/at.
5
1. This plan also did not show any right-of-way across Lots
2 and 3 in favor of Lot 1 for access to the Carlisle Pike?
m. At settlement, no suggestion was made that access to
the Carlisle Pike from the lot being purchased by Plaintiff
existed other than by way of Crossgate Drive?
n. On May 4, 2000, the common grantor conveyed Lots 2
and 3 to Defendant?
o. The deed to Defendant for Lots 2 and 3 did not refer to
any right-of-way across the lots in favor of Lot I for access to
the Carlisle Pike?
p. With regard to access to the Carlisle Pike, the
conveyance of Lot 2 specifically included only "the right to use
Crossgate Drive.''4°
q. The deed to Defendant referred to the aforesaid
subdivision plan.4~
r. As previously noted, this plan also did not show any
right-of-way across Lots I and 2 in favor of Lot 3 for access to
the Carlisle Pike.
s. Prior to settlement, Defendant had seen some traffic
access the Carlisle Pike across Lots 2 and 3 from Lot 1.42
~6 Defendant's Ex. 5 (Oct. 7, 2002).
'~? N.T. 16-17, 56-57 (Oct. 7, 2002).
~8 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, para. 8. The deed was dated
April 6, 2000. but settlement occurred on May 4, 2000. Plaintiff's Ex. 3 (Oct. 7, 2002); N.T. 18
(Oct. 7, 2002).
3~ Plaintiff's Ex. 3 (Oct. 7, 2002). The deed to Defendant did indicate that the lots were being
conveyed "under and subject.., to all easements, restrictions, encumbrances and other matters of
record or that a physical inspection or survey of the premises would reveal." Id. However, no
right-of-way across Lots 2 and 3 in favor of Lot I for access to the Carlisle Pike was of record,
marked upon the ground or discernible by survey. See N.T. 3 I, 106-08 (Oct. 7, 2002).
4o Plaintiff's Ex. 3 (Oct. 7, 2002).
4~[d'
6
t. At settlement, Defendant inquired as to whether the lots
he was buying could be subject to an easement for traffic
between the Carlisle Pike and Plaintiff's lot, and counsel for
the equitable owner, in the presence of the person who
operated the equitable owner's business, indicated that it could
not?
u. At settlement, in the same context, Defendant inquired
as to whether he would be able to put a fence up and was told
by counsel for the equitable owner that, subject to township
approval, he could.44
v. Defendant completed the settlement with the
understanding that no such easement existed.4s
42 N.T. 87-88 (Oct. 7, 2002).
4.~ N.T. 19-20, 89, 97-99 (Oct. 7, 2002). The attorney felt that his response was directed to the
issue of a prescriptive easement, but this technical legal distinction was understandably not the
impression received by Defendant or his counsel. N.T. 19-20, 29, 98, 110-12, 114-15 (Oct. 7,
2002). Defendant further testified, credibly in the court's view, that the person who operated the
equitable owner's business also assured him that "she did not grant any easements to anyone," in
response to his inquiry at settlement. N.T. 89 (Oct. 7, 2002): see N.T. 57 (Oct. 7, 2002).
Defendant's understanding at settlement was summarized in the following testimony,
which he gave on cross-examination:
Q You didn't ask [the counsel] whether the use of the access
across Lots No. 2 and Lot No. 3 created an implied easement?.
A I didn't ask him that way. What he said and his explanation
was that Crossgate's office building, Lot No. I, had access to Carlisle Pike
by Crossgate Drive and they did not have a need, they did not have a
specific need to go across, there wasn't any necessity to go across there, it
was a habit.
But you knew there was a habit out there?
A I knew there was a habit out there and I asked at settlement
about putting a fence up. And they said that it was my right to do so or
they felt that I had to go to the township, get a permit, but I could do it,
there was no restyietion to doing that.
N.T. 98-99 (Oct. 7, 2002).
44 N.T. 98-99 (Oct. 7, 2002); see N.T. I 15 (Oct. 7, 2002).
4~ N.T. 19-20 (Oct. 7, 2002).
7
17. In February 2001, Defendant applied for a township building permit to
allow him to erect a fence along the northern boundary of Lot 2.46
18. The fence would obstruct the implied easement claimed by Plaintiff?
19. On May 9, 2001, Plaintiff commenced the present litigation seeking a
declaratory judgment affirming the existence of an implied easement for traffic to
access the Carlisle Pike from Plaintiff's land across Defendant's lands, and an
injunction to prevent erection of the fence,ns
20. Plaintiffhas shown that title to the property that would benefit from the
claimed easement (Lot 1) and to the property that would be burdened by the
easement (Lots 2 and 3) has been separated?
21. Plaintiffhas shown that the claimed easement would be convenient and
beneficial to the property which the easement would serve (Lot 1)?
22. Plaintiff has not shown that the use represented by the claimed
easement was obvious and intended to be a permanent burden upon the servient
estate (Lots 2 and 3).
DISCUSSION
With respect to implied easements, it has been noted by the Pennsylvania
Supreme Court that "It]he law is jealous of a claim to an easement, and the burden
is on the party asserting such a claim to prove it clearly." Becker v. Rittenhouse,
297 Pa. 317, 325, 147 A. 51, 53 (1929) (citation omitted).
Three things are regarded as essential to create an easement by
implication on the severance of the unity of ownership in an
estate: First, a separation of the title; second, that, before the
separation takes place, the use, which gives rise to the
40 Plaintiff's Complaint, filed May 9, 2001, para. 28; Defendant's Answer and New Matter, filed
May 3 I, 200 I, para. 28.
47 Plaintiff's Complaint, filed May 9, 2001, para. 29; Defendant's Answer and New Matter, filed
May 31, 2001, para. 29.
4s Plaintiff's Complaint, filed May 9, 2001.
49 N.T. 12 (Oct. 7. 2002); Plaintiff's Complaint, filed May 9, 2001, para. 4.
.~0 N.T. 14-15 (June 4, 2001 ).
8
easement, shall have been so long continued and so obvious or
manifest as to show that it was meant to be permanent; and,
third, that the easement shall be necessary to the beneficial
enjoyment of the land granted or retained.
Id. (citation omitted)?
Implicit within the requirement that the easement have been meant to be
permanent is a regard for the intent of the parties to the transaction that generated
the purported easement by implication. Thus, the Pennsylvania Superior Court
has stated that "an easement by implication can only be found where the intent of
the parties is clearly demonstrated by the terms of the grant, the surroundings of
the property and other res gestae of the transaction." Mann-Hoffv. Boyer, 413 Pa.
Super. 1, 9, 604 A.2d 703, 707 (1992) (citations omitted). In a similar vein, the
Pennsylvania Supreme Court has noted that "[t]he effect of the prior use as a
circumstance in implying, upon a severance of possession by conveyance, an
easement results from an inference as to the intention of the parties." Bucciarelli
v. DeLisa. 547 Pa. 431,436, 691 A.2d 446, 448 (1997) (emphasis added).
Among the factors which can be helpful in deriving the parties' intent,
actual or implied, are the following:
(a) whether the claimant is the conveyor or the conveyee,
(b) the terms of the conveyance,
(c) the consideration given for it,
(d) whether the claim is made against a simultaneous
conveyance,
(e) the extent of necessity of the easement to the claimant,
(f) whether reciprocal benefits result to the conveyor and
the conveyee,
(g) the manner on which the land was used prior to its
conveyance, and
~ "To these another essential is sometimes added~hat the servitude shall be continuous and
self-acting, as distinguished from discontinuous and used only from time to time." Becker, 297
Pa. at 325, 147 A. at 53.
9
(h) the extent to which the manner of prior use was or
might have been known to the parties.
Mann-Hoff, 413 Pa. Super. at 8-9, 604 A.2d at 707; Restatement of Property §476
(1944); see Bucciarelli, 547 Pa. at 436, 691 A.2d at 448.
An implied easement, as distinguished from an easement by necessity, need
not be absolutely necessary to the use of the dominant estate. Daddona v. Thorpe,
749 A.2d 475, 481 (Pa. Super. Ct. 2000).
Commonly, such uses found to constitute implied easements "have so
altered the premises as to make them apparent" and occupy "well-defined
route[s]" as opposed to non-specific courses over the servient property. See
Bucciarelli, 547 Pa. at 437-38, 691 A.2d at 448-49 (citations omitted).
In the present case, a number of objective indicia of intent militate against a
finding that the implied easement claimed by Plaintiff was meant to constitute a
permanent burden upon the servient estate. These include (a) the absence of a
visible track or marking upon the ground evidencing the easement, (b) the
consequent lack of definition to the course of the easement, (c) the absence of
reciprocal benefits from the easement to the land now owned by Defendant, (d) the
availability of access from Plaintiff's land to the Carlisle Pike by means other than
the easement claimed, (e) the representation in Defendant's agreement of sale that
the property he was purchasing would not be subject to such an easement, (f) the
absence of any suggestion at settlement on Plaintiff's property that it was served
by such an easement over land retained by the common grantor (now owned by
Defi~ndant), (g) the unlikelihood that the common grantor as conveyor would have
desired such an easement upon retained lands, (h) the conspicuous inclusion in
Plaintiff's deed of an easement of access to the Carlisle Pike without reference to
the easement of access claimed by Plaintiff? (i) the assurance at settlement the
s2 The expression of an easement (via Crossgatc Drive) in the instrument indicates that the
common grantor was aware of the method by which an easement serving the property being
conveyed could be referenced, and lends some support to the proposition that the grantor did not
!0
following day on Defendant's property that his lots were not subject to an access
easement in favor of Plaintiff's land, and (j) the absence of any reference to such
an easement in the deed provided by the common grantor to Defendant, in
conjunction with reference in the same instrument to other easements to which the
property was subject. Based upon all of the evidence found credible, it is the view
of the court that Plaintiff did not satisfy all the criteria necessary to prove clearly
the existence of the implied easement claimed.
CONCLUSIONS OF LAW
1. This court has jurisdiction over the parties and subject matter of the case.
2. The implied easement of access to the Carlisle Pike claimed by Plaintiff
across lands owned by Defendant has not been demonstrated by the evidence.
3. Plaintiff is not entitled to a declaratory judgment to the effect that such
an easement exists nor to an injunction to prevent Defendant from erecting a fence
that would interfere with the purported easement.
DECREE NISI
AND NOW, this 6t~ day of January, 2003, upon consideration of Plaintiff's
complaint in the above-captioned matter, following a non-jury trial, and for the
reasons stated in the accompanying opinion, the court finds in favor of Defendant
and against Plaintiff.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
contemplate the subjection of land being retained by the granter to the (unreferenced) easement
claimed by Plaintiff. Cf. In re Heath's Estate. 286 Pa. 335. 133 A. 558 (1926).
11
Helen L. Gemmill, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Attorney for Plaintiff
William L. Adler, Esq.
P.O. Box 11933
Harrisburg, PA 17108
Attorney for Defendant
12
KUSIC CAPITAL GROUP, L.L.C., : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION NO. 01-2813
:
HARRY F. CHRISTIE, : IN EQUITY
Defendant :
PRAECIPE FOR ENTRY OF FINAL DECREE
TO THE PROTHONOTARY:
Please enter the decree nisi docketed on January 7, 2003 as the final decree in this matter.
McNEES, WALLACE & NURICK
Helen L. Gemmill
I.D. No. 60661
Kimberly M. Colonna
I.D. No. 80362
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff
Dated: February 4, 2003
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was served
by first class mail, postage prepaid, upon this date addressed as follows:
William L. Adler, Esquire
ADLER & ADLER
P.O. Box 11933
125 Locust Street
Harrisburg, PA 17108
Helen L. Gemmill
Dated: February 4, 2003
KUSIC CAPITAL GROUP, L.L.C., IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
:
v. : CIVIL ACTION NO. 01-2813
:
HARRY F. CHRISTIE, : IN EQUITY
:
Defendant :
NOTICE OF APPEAL
Notice is hereby given that Kusic Capital Group, L.L.C., the above-named Plaintiff,
hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on
February 26, 2003. This Order has been entered in the docket, as evidenced by the attached copy
of the docket entry.
The complete transcript of the trial has been lodged of record.
McNEES WALLACE & NURICK LLC
Hel'e-n L. Gemm~ll
I.D. No. 60661
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff
Dated: March 28, 2003
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was served
by first class mail, postage prepaid, upon this date addressed as follows:
William L. Adler, Esquire
ADLER & ADLER
P.O. Box 11933
125 Locust Street
Harrisburg, PA 17108
Honorable J. Wesley Oler
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17103
Patricia C. Barrett
Official Court Reporter
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17103
Court Administrator
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17103
Dated: March 28, 2003
PYS510 Cumberland County Prothonotary's Office Page 1
Civil Case Inquiry
2001-02813 KUSIC CAPITAL GROUP LLC (vs) CHRISTIE HARRY F
Reference No..: Filed ........ : 5/09/2001
Case T%rDe ..... : COMPLAINT0 -0EQUITY Time ......... : 3:12
Execution Date
Ju~gmeS% ..... ~ . 0/00/0000
Juage Assignea: Jury Trial ....
Disposed Desc.: Disposed Date. 0/00/0000
............ Case Comments ............. Higher Crt 1.:
Higner Crt 2.:
********************************************************************************
General Index Attorney Info
KUSIC CAPITAL GROUP L L C PLAINTIFF GEMMILL HELEN L
4201 CRUMS MILL ROikD
HARRISBURG PA 17112
CHRISTIE HARRY F DEFENDANT
86 OXBOW CIRCLE
CHALFONT PA 18914
Judgment Index Amount Date Desc
KUSIC CAPITAL GROUP L L C 1~07~2003 DECREE NISI
KUSIC CAPITAL GROUP L L C 2/04/2003 FINAL DECREE
********************************************************************************
* Date Entries *
............. FIRST ENTRY ..............
5/09/2001 COMPLAINT - EQUITY
5/09/2001 ORDER OF cOLrRT - DATED 5/9/01 - IN.RE .PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION - HEARING 5/29/01 2:30 PM CR 1 - BY J WESLEY
OLER JR J - COPIES MAILED
5/25/2001 SHERIFF'S RETURN FILED
Litigant.: CHRISTIE HARRY F
SERVED : 5/21/01 NOT SERVED - DEFT MOVED CHALFONT PA
BUCKS COUNTY
Costs .... : $85.00 Pd By: MCNEES, WALLACE & N-URICK 05/25/2001
TO MONDAY 6/04/01 AT 8:30 AM AND TUESDAY 6/05/01 AT 8:30 AM IN
COURTROOM NO 1 J WESLEY OLER JR ~-u-DGE
COPIES MAILED 5/29/01
5/31/2001 ANSWER AND NEW MATTER DEFT
5/31/2001 DEFENDANT'S REPLY TO MOTION FOR PRELIMINARY INJUNCTION
6/04/2001 PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER
6/04/2001 ORDER OF COURT 6/04/01 UPON CONSIDERATION OF PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION AND FOLLOWING A HEARING HELD ON 6/04/01 THE
MOTION IS DENIED J WESLEY OLER JR J//DGE
COPIES MAILED 5/04/01
6/08/2001 ORDER OF COURT 6/04/01 UPON CONSIDERATION OF PLFF'S PETITION FOR A
PRELIMINARY INJUNCTION AND FOLOWING A HF2kRING THE RECORD IS
DECLARED CLOSED AND THE MATTER IS TAKEN UNDER ADVISEMENT.
COPIES MAILED 6/08/01
6/18/2002
DEFT
6/2112002
MATTER SCHEDULED FOR 9/26/02 AT 11:00 AM IN CHAMBERS OF THE
UNDERSIGNED JUDGE CARLISLE PRETRIAL MEMORANDA SHALL BE SUBMITTED
BY COUNSEL AT LEAST 5 DAYS PRIOR TO PRETRIAL CONFERENCE - A .
NONJURY TRIAL IN THE ABOVE MATTER IS SCHEDULED FOR 10/7/02 AT 9.30
AM IN CR 1 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT
J WESLEY OLER JR J COPIES MAILED 6/21/02
...................................................................
P~S510 Cumberland County Prothonotary's Office Page 2
Civil Case Inquiry
2001-02813 KUSIC CAPITAL GROUP LLC (vs) CHRISTIE HARRY F
Reference No..: Filed ........ : 5/09/2001
Case TYPe ..... : COMPLAINT - EQUITY Time ......... : 3:12
Ju~gmeh% ....... 00 Execution Date 0/00/0000
Juage Assigned:
Disposed Desc,:
Jury Trial ....
Disposed Date. 0/00/0000
............ Case Comments ............. ~ig~er Crt 1.:
~igner Crt 2.:
9/23/2002 OBJECTION TO TELEPHONIC DEPOSITION AND TESTIMONY OF WITNESS JOAN
lO/Ol/2OO2 ..........
TiLEPHONIC DEPOSITION AND TESTIMONY OF WITNESS JOAN PITNICK -
PURSUANT TO AN AGREEMENT OF COUNSEL REACHED AT THE PRETRIAL - IT
IS ORDERED THAT THE TESTIMONY OF JOAN PITNICK BE TAKEN BY
DEPOSITION FOR TRIAL THROUGH THE DEVICE OF VIDEOCONFERENCING WITH
~E COSTS OF SUCH DEPOSITION TO BE EO~E ~Y PLFF - BY THE COURT J
SLEY OLER JR J COPIES ~ILED 10/1/02
I0/01/2002 ~£-65~-:-~-~-&6~-~-~-~-3 ..................
10/03/2002 TRANSCRIPT FILED BY J WESLEY OLER JR J
lO/O8/2oo2
............. ~-,-,,'~.~ ~SEDAND THE MATTER IS TAKEN UNDER
1010812002 6~-6F-66~-z-~-~)~)~-i-~6~%-~6-f~-~&~-6~ .......
COUNSEL THE RECORD FROM THE HEARING ON PLFF'S REQUEST FOR A
PRELIMINARY INJUNCTION IN THE ABOVE CAPTIONED MATTER IS
INCORPORATED INTO THE RECORD OF TRIAL HEREIN - BY THE COURT J
WESLEY OLER JR J COPIES MAILED 10/8/02
lO/31/2oo2 T~,ANSCRIPT FILED - BY THE COURT J WESLEY OLER JR J
11o712oo3 ~$~-L;~-$~-c-~i~-:-~-~-~f~i6~-:-6~$~ .......
~ONSIDER~TION OF THE PLFF S COMPLAINT IN THE J~BOV CAPTIONED MATTER
FOLLOWING A NON-JURY TRIAL J~N-D FOR REfl~SONS STATED IN THE
ACCOMPANYING OPINION THE COURT FI~S IN ~A~OR OF DEFT - EY THE
COURT J WESLEY OLER aR J COPIES MAILED Il?/03
)~$~_N~gI ~ggSXED IN auDOMENT INDEX ON FEEROARY 5, 2003)
~ua~ z~, zoo3 - FINAL JUDGMENT IS HEREBY ENTERED IN FAVOR OF
THE DEFENDANT ~ AGAINST THE PLAINTIFF PURSUANT TO PA R C P RULE
NO 1066 ~ 1066.4 THE PLAINTIFF H~S FAILED TO TAKE THE ACTION
DIRECTED CURTIS R LONG PROTHONOTARY
...................................................................
2/04/2003 PR3~CIPE FOR ENTRY OF FINAL DECREE AND FINAL DECREE ENTERED
.............. LAST ENTRY ..............
********************************************************************************
* Escrow Information ,
* Fees & Debits Be Bal P ts/Ad' End Bal *
*******************************************************************************
COMPLAINT 35.00 35.00 .00
T~X ON CMPLT .50 .50 .00
SETTLEMENT 5.00 5.00 .00
JCP FEE 5.00 5.00 .00
JDMT 9.00 9.00 .00
......
* End of Case Information ,
KUSIC CAPITAL : IN THE COURT OF COMMON PLEAS OF
GROUP, L.L.C., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION - LAW
:
HARRY F. CHRISTIE, :
Defendant : NO. 01-2813 CIVIL TERM
ORDER OF COURT
AND NOW, this Ist day of April, 2003, upon consideration of the Notice of
Appeal filed in the above=captioned matter, Appellant is DIRECTED, pursuant to Pa.
R.A.P. 1925(b), to file of record in this Court and to serve upon the undersigned judge a
concise Statement of Matters Complained of on Appeal no later than 14 days after entry
of this Order.
BY THE COURT,
!../Wesley Oler:'Jr., J.
Helen L. Gemmill, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Attorney for Plaintiff
William L. Adler, Esq.
P.O. Box 11933
125 Locust Street
Harrisburg, PA 17108
Attorney for Defendant
:r~
Appeal Docket Sheet Superior Court of Pennsylvania
Docket Number: 488 MDA 2003
Page I of 2 ~
April 2, 2003
Kusic Capital Group, L.L.C., Appellant
v.
Harry F. Christie
Initiating Document: Notice of Appeal
Case Status: Active
Case Processing Status: April 2, 2003 Awaiting Original Record
Journal Number:
Case Category: Civil CaseType: Equity
Consolidated Docket Nos.: Related Docket Nos.:
SCHEDULED EVENT
Next Event Type: Docketing Statement Received Next 16, 2003
Next Event Type: Original Record Received
COUNSEL INFORMATION
Appellant Kusic Capital Group, L.L.C.
Pro Se: Appoint Counsel Status:
IFP Status: No
Appellant Attorney Information:
Attorney: Gemmill, Helen Louise
Bar No.: 60661 Law Firm: McNees, Wallace & Nurick
Address: McNeas Wallace & Nurick
100 Pine Street
Harrisburg, PA 17101
Phone No.: (717)237-5273 Fax No.: (717)237-5300
Receive Mail: Yes
E-Mail Address:
Receive E-Maih No
Appellee Christie, Harry F.
Pro Se: Appoint Counsel Status:
IFP Status:
Appellee Attorney Information:
Attorney: Adler, William L.
Bar No.: 39844 Law Firm:
Address: PO BOX 11933
125 Locust Street
Harrisburg, PA 17108
Phone No.: (717)234-3289 Fax No.: (717)234-1670
Receive Mail: Yes
E-Mail Address:
Receive E-Mail: No
2:23
Appeal Docket Sheet Superior Court of Pennsylvania
Docket Humber: 488 MDA 2003
Page 2 of 2
April 2, 2003
FEE iNFORMATION
Paid
Fee Date Fee Name Fee Amt Amount Reeelpt Number
4/1/03 Notice of Appeal 60.00 60.00 2003SPRMD000309
TRIAL COURT/AGENCY INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland Division: Civil
Date of Order Appealed From: February 26, 2003 Judicial District: 9
Date Documents Received: April 1,2003 Date Notice of Appeal Filed: Mamh 28, 2003
Order Type: Order Entered OTN:
Judge: Oler, Jr., J. Wesley Lower Court Docket No.: 2001-02813
Judge
ORIGINAL RECORD CONTENTS
Original Record Item Flied Date Content/Deecrlptlon
Date of Remand of Record:
BRIEFS
DOCKET ENTRIES
Flied Date Docket Entw/Document Name Party Type Filed By
April 2, 2003 Notice of Appeal Filed
Appellant Kusic Capital Group, L.L.C.
April 2, 2003 Docketing Statement Exited (Civil)
Middle District Filing Office
KUSIC CAPITAL GROUP, L.L.C., IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v. : CIVIL ACTION NO. 01-2813
:
HARRY F. CHRISTIE, : IN EQUITY
:
Defendant :
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
PURSUANT TO Pa.R.A.P. 1925(b)
PlaintiffKusic Capital Group, LLC,, in accordance with the Order of April 1, 2003, files
the following Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b):
1. The Court stated in its decision that Pennsylvania law requires that the Court take
"regard for the intent of the parties to the transaction that generated the purported easement by
implication." The Court then erred as a matter of law in considering the intent and understanding
of the Defendant and benefits to the Defendant, in that the Defendant was not a party to the
transaction that generated the easement by implication. The only parties to the transactinn that
generated the easement by implication were plaintiffKusic Capital Group LLC, the Gene
Pitnick Development Company and the Cumberland County Industrial Development Authority.
Thus the Court could only consider facts regarding the use ofthe property that implied the intent
of these parties to the transaction generating the implied easement. The intent and understanding
of Defendant and the lack of benefits to the Defendant are irrelevant.
2. The Court erred as a matter of la~v in considering whether the Defendant as
purchaser had actual or constructive notice of an implied easement. Rather, as demonstrated in
Bucciarelli v. DeLisg, 547 Pa. 431,691 A.2d 446 (1997), the purchaser need only have notice of
the use. If the purchaser has notice of the use, which use gives rise to the easement trader
operation of law, the easement can be enfomed against the purchaser regardless of whether or not
the pumhaser understood that the use could result in the imposition and enforcement of an
implied easement.
Respectfully submitted,
McNEES WALLACE & NURICK LLC
Helen L. Gemmill
I.D. No. 60661
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff
Dated: April 15, 2003
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a trite and correct copy of the foregoing was served
by first class mail, postage prepaid, upon this date addressed as follows:
William L. Adler, Esquire
ADLER & ADLER
P.O. Box 11933
125 Locust Street
Harrisburg, PA 17108
and by hand delivery addressed as follows:
Honorable J. Wesley Oler
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17103
Helen L. Gemmill
Dated: April 15, 2003