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Home My WebLink About12-7335 I f !~ '~~~~.U't~r ~ ~-- F ~ . ~,~~ `t;, 4. 1 RIVER SCHOOL L>~Ui~tBF ~+~-~~ CGu,dT`t PEFt~3SYL~~~~l~~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION Ia-1335 CiuiC BOROUGH OF WORMLEYSBURG ~ Defendant NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford St. Carlisle, PA 17013 717-249-3166 Q,~,~ a ~o~.,s~~~ s Q.~kk ~'3~(S ~ +, John A. Gill, Esquire I.D. No. 41532 325 North Second Street Attorney for Plaintiff Wormleysburg, PA 17043 (717) 737-7522 RIVER SCHOOL LP IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. CIVIL ACTION BOROUGH OF WORMLEYSBURG Defendant COMPLAINT AND NOW, comes Plaintiff, River School LP, and files the within Complaint and avers in support hereof as follows: 1. Plaintiff is River School LP, a Pennsylvania limited partnership who maintains its principal place of business at 325 North Second Street, Wormleysburg, Cumberland County, Pennsylvania. 2. Defendant is the Borough of Wormleysburg with its principal office at 20 Market Street, Wormleysburg, PA 17043. 3. Plaintiff is the owner of the property located at 325 North Second Street, Wormleysburg, PA. 4. In 2004, Defendant approached Plaintiff requesting that Plaintiff extend a Deed of 1 Easement to Defendant to enable Defendant to reconstruct and maintain a storm water drainage system that traversed Plaintiff's property. 5. Plaintiff complied with Defendant's request and granted Defendant a Deed of Easement dated August 31, 2004, a true and correct copy of which is attached hereto, incorporated herein and marked as Exhibit 1. 6. The Deed of Easement was prepared by the Defendant. 7. Subsequent to the grant of the Deed of Easement, Defendant undertook construction of various storm water improvements. 8. The original Deed of Easement identified the construction of a new SS Manhole #3 as identified on Exhibit A of the Easement.(Area highlighted in yellow) 9. Defendant did not construct a new SS Manhole #3 as shown in Exhibit A of the Easement, but rather, proceeded to construct a storm inlet as identified on the site plan for the River Street storm sewer addition dated July 23, 2008, a true and correct copy of which is attached hereto, incorporated herein and marked as Exhibit 2. (Area highlighted in yellow) 10. During the installation of the inlet, Defendant undermined a retaining wall on Plaintiffls property and set the inlet lower than the previous grade level, causing the retaining wall and adjacent walkways and parking area to be damaged and which are in need of repair. 11. Under the Deed of Easement, Defendant is responsible for the repair and restoration any area disturbed in the permanent easement areas and temporary construction easement areas. 12. The inlet installed by Defendant is within the easement area and Defendant is responsible for repairing and restoring the disturbed area. 13. Plaintiff has demanded that Defendant repair the retaining wall and adjacent areas, but to date Defendant has refused to do so. 2 14. Plaintiff has obtained an estimate of repair in the sum of $27,750. WHEREFORE, Plaintiff requests that judgment be entered in favor of Plaintiff and against Defendant for all necessary costs to repair the retaining wall and adjacent areas and costs of suit, said sum not in excess of the jurisdictional limits requiring arbitration, and such other relief as the Court deems appropriate. Respectfully submitted, Date: //-2 8 -/Z, ~ o A. Gill, Esquire 32 North Second Street Wormleysburg, PA 17043 (717) 737-7522 #41532 Attorney for Plaintiff River School, LP 3 r ~ EXHIBIT 1 ROBERT P. ZIEGLER ` RECORpE{t OF QEEDS ~~~ SEP 15 Rf~ 9 18 ~~ ~~ DEED OF EASEMENT THIS DEED OF EASEMENT, is made this -3p~~ day of August 2004 by and between RNER SCHOOL L.P., with its registered office at 307 East Meadow Drive, Mechanicsburg, Cumberland County, Pennsylvania ("Grantor") and THE BOROUGH OF WORMLEYSBURG, a muniapality of the Commonwealth of Pennsylvania, with its principal offices at 20 Market Street, Womtleysburg, Cumberland County, Pennsylvania ("Grantee"). BACKGROUND A. Grantor is the owner of an improved tract of land situate in the Borough of Wormleysburg, Cumberland County, Pennsylvania, being more particularly bound and described in a Deed recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania in Deed Book 154, Page 461 ("Property"). B. Grantee owns and operates an existing fifteen (15") inch stormwater drainage line and facilities, a portion of which traverses the Property in a general south to north direction. C. Grantor is desirous of granting unto Grantee a temporary canstructlon easement and subsequently a permanent easement for the purpose of Grantee reconstructing and maintaining said stormwater drainage line and facilities within the Property. D. Grantor and Grantee now desire to join . in this Deed of Easement for the purpose of confirming Grantee's right to operate and upgrade said stormwater drainage facilities across the Property. NOW THEREFORE, Grantor and Grantee, intending to be legally bound hereby, agree and covenant as follows: 1. Background. The above Background section is incorporated into and made part of this Deed of Easement. 11!20/2012 8:15:37 AM CUMBERLAND COUNTY Inst.# 200437657 -Page 1 of 9 2. Grant of Permanent Easement. In exchange for payment of One {x1.00) IOollar paid by Grantee to Grantor, together with other valuable consideration, the receipt of which is hereby acknowledged by Grantor, Grantor hereby grants and conveys to Grantee, its successors and assigns, forever, a twenty {20) foot wide easement for the purpose of installing, constructing, erecting, laying, using, operating, maintaining, inspecting, removing, repairing, relaying, enlarging and adding to from time to time stormwater drainage facilities and all accessories and appurtenances thereto, upon, over and under the lands of Grantor hereinafter described, together with all rights of ingress, egress and regress into, over, upon, through, along and from said land which are necessary or convenient for full and complete use by the Grantee, its successor, agents, contractors or assigns of the said easement and right-of-way and far the exercise of said rights and privileges herein granted. Said permanent easement is shown on the plan entitled "Plan showing easement to be acquired by the Borough of Wormleysburg from River School L,P. dated May 2004 and attached hereto as Exhibit A, and described in the legal description attached hereto as Exhibit A-1." Grantee shall, at Grantee's sole cast and expense, repair and restore any area disturbed in the permanent easement areas. Said restoration shall include grading, seeding and stabilization of unimproved areas and with respect to improved areas, Grantee shall be responsible for repairing and restoring, as nearly as practicable to its condition prior to the exercise of Grantee's rights herein. 3. Grant of Temporary Construction Easement. In addition to the permanent easement set forth in Paragraph 2 above, Grantor also grants to Grantee a temporary construction easement which said temporary construction easement is flue {5) feet in width that extends along the entire eastern and western right-of-way lines of the easement as shown and described on the afon=mentioned Exhibit A and Exhibit A-1. Said temporary construction easement is for the benefit of Borough, its employees, Borough's contractors and said contractors' subcontractors and employees. Upon the completion of the construction of the stormwater facilities, said temporary construction easement shall automatically terminate and shall be extinguished. Grantee shall, at Grantee's sole cost and expense, repair and restore any area disturbed in the temporary construction and permanent easement areas. Said restoration shaA include grading, seeding and stabilization of unimproved areas and with respect to any driveway areas or improved areas, shall be cepaired and restored, as nearly as practicable, to its condition prior to the exercise of Grantee's rights herein subject to Grantees rights herein. Grantee shall, other than as herein before provided, have responsibility for the replacement for trees, bushes, shrubbery, plants, sod or other plantings within the limits of said temporary construction and permanent easement areas. 2 11 /20/2012 8:15:37 AM CUMBERLAND COUNTY Inst.# 200437657 -Page 2 of 9 4. Grantor's Use and Enjoyment. Grantor shall have the full use and enjoyment of the surface of said easement and right-of-way areas, upon completion of construction, except for the purposes herein granted to Grantee; provided, however, that the said Grantor shall not construct or permit to be constructed any structure, trees, shrubbery or other surtace or subsurface obstructions (other than parking and driveway areas, and other than the existing building shown on Exhibit Aj on or over said easement and right-of--way areas nor do any other act that will intertere with the rights of the Grantee set forth herein. 5. Entire Agreement. This Grant of Easement contains the entire agreement by and between Grantor and Grantee with respect to the grant of the temporary construction and permanent easements. 6. Modification. This Grant of Easement shall not be amended, modified or changed except in writing signed by Grantor and Grantee. 7. Recording. This Grant of Easement shall be recorded, at Grantee's expense, in the Ofhce of the Recorder of Deeds of Cumberland County, Pennsylvania. 8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. 9 Binding Effect. This Grant of Easement shall be binding upon and shall inure to the benefit of the Grantor and Grantee, their respective heirs, administrators, successors and assigns. 1 ~. Headings. The headings contained in this Grant of Easement are for convenience only and do not form a part of this document and shall not affect is interpretation. 11. Severability. If any provision of this Grant of Easement or the application thereof to Grantor and Grantee is held invalid or unenforceable to any extent, the remainder of this Grant of Easement and the application of the remaining provisions shall be enforced to the greatest extent permitted by law. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK] 3 BOOK `711. PAGE ~?b1~ 11/20/2012 8:15:37 AM CUMBERLAND COUNTY Inst.# 200437657 -Page 3 of 9 ~ ~ ~ +II IN W/TNESS WHEREOF Grantor and Grantee have executed and delivered this Grant of Easement as of the date first above written. Witness: c._..~.~____~... Attest: Borough ecreta :230733.3 GRANTOR: River ~et~, L.P. J M. Oishefski, General Partner GRANTEE: Borough of Wonmteysburg By; `r~u-~r !~ .l ~ Thomas G. Kangan Borough Council President 4 aooic "711 Paci: ah.~.i 11/20/2012 8:15:37 AM CUMBERLAND COUNTY Inst.# 200437657- Page 4 of 9 •, ~i COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cul~lrfJ ss. ,~- On this the ~~'' day of August, 2004, before me, a notary public, the undersigned officer, personally appeared JOSEPH M. OLSHEFSKI, who acknowledged himself to be the General Partner of this RIVER SCHOOL, L.P., and that he as such General Partner, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the Limited Partnership by himself as General Partner. IN WITNESS WHEREOF, I have hereunder set my hand and official seal. ~~x iCc}i"'s~ ~t ~* r ' ~ '~••~~.~ N ry Public Q~rs"~n ~~~ h~~~ ~ w se.~ >~ M'a°'°.~, goo Member. Penny~,nt, AwoclMbn d NoMiNe COMMONWEALTH OF PENNSYLVANIA COUNTY OF Gu~t~"~.~0 ss. ,~' On this the ~ r ~ day of August, 2004, before me, a notary public, the undersigned officer, personally appeared THOMAS G. KANGANIS, who acknowledged himself to be the President of Wormleysburg Borough Council, a public body corporate and politic of the Commonwealth of Pennsylvania, and being authorized to do so, execute the foregoing instrument for the purpose therein contained by signing the name of Wormleysburg Borough by himself as President. 'i SS tMfEREOF, i have hereunder set my hand and official seal. . r. ~''~~ C Off; .. ~~s. ~3~,i~., , • k, ~ . , . ' `~=~ a';~ t~ ~~ ~ ~~ tsoox '71i ~ACE~t~l?_ ; + e,~°~ .<.~~•~ .~ t ~ otary ublic y Ye i ~'~ . ~g ` ~~'J , VMifA O ~..•• '~'~~•~ ;n~r~sr:;;;.,.. Nor1W8Mi (3~eyW.HMwrli~i, NolRieiGst W.Bern•~r~«•r~ ~+lt~ru~ Pu,,,, .. ~.~.nCCrl3+tt' c iui ~ dNIC; . AAartiber, Peamylw„M Aseocieron d , P.irilyM.ai.l~..oarlo. d ~IouMn 11/20!2012 8:15:37 AM CUMBERLAND COUNTY Inst.# 200437657 -Page 5 of 9 ~i EXHIBIT A Plan showing easement tv be acquired by the Borough of Wormleysburg from River School L.P, ao6EC '7i t ~Ac~ ~~r3 11/20/2012 8:15:37 AM CUMBERLAND COUNTY Inst.# 200437657 -Page 6 of 9 ~~ ~~ ~~ 0 ¢g~ ~ A "~~ 3 g t- d 6 J a i ~~N{ at N ~~ o, i 0 2 > ,: ~ I ~ , ~ e S 8 ,~ e-- ~ ~ j ~ ~ {; M N: 4~ I ~ '= N5r45~o~rE r5aar ~ ~ _ ~ °~ a Q rriwr~wr ~rr~r r~~rrr~r ~r rrr~r~rrr r.r~r~.r P.Q& . tP.: i ~„ ~ z Q 1 ~' ~ ZCvf~ G. Q4 w~ t~, n i ~~ i ~~ a,Z~ O V _`: ~ 2 Z Qj i ~ ~ y~N= a~ is ~ LLt W Gf] ~i U1 ~ ~ LLJ ~ f~ W ~ ~; Z ~~ ~ oaf N. i J ti .' ~ 71>V~ NUII~~ ~ ~O ~ t ' ~ ~ C7 N to ~~ W !•` ~ ~ ~ , _ ~ : ~V ~~ i Zy a.Z ~~- '~'~'~;~~ d~ t~ ('• ~O ~_ ip~'~ tnQv '! 33j i ~~Q W~VV~~~ j "~ '~! W ll-J to FZ r "'~ ~ 'i l `: 11 ~ ~ fit! C) LiJ ~ 3 ~ ~ ~^ %•i ~~ w ~ r~ ~I ~ m'Z / ~ 1 {=: ,x ~ -~ ~~~ wcn~ y~ao ~ ~ ;ice ll3J ~F ~:~~ ee :~ :~:A 0 Z J Z ~I i~i;I p~ y ;.,} ;t~ ~ JQ N :'` ~ W~ '' i ,;'~ toe Z `v ZQ { ~~ ~QO ~ i i Ct ' I ! ~ ~ (/~ O O G! O ~ ~ LJ.1 LPL V ~ ~~ I, w ~ a+ ~ Z ~ N r N ~~ ~U~3 LLJ 'i f~ (' ~ { a LL' ~ W O ~ ~ ~ ~ ~C~D• ~~ z ~ j ~ ~.P ~.~. a; (n v ~, N Q ((--~~ G1 p~ O _~ ~ ~ ~ LPL O ~rw~~~a~w rrww.~..~r.r .rrr~,~rr..wwrrrrar:~ w F O ~ 7.~ tCl i-~ iA ~r Q.M 1; ~ /t)a'O5I A~,Da/S~~SS ~ ! ~ i ~ r' DD C ~ W d ~0 ~ F7D l~ { ,~ LC 3 F ~ ~ IA M tti ~"~ ! ~ ZtllviZ ~ ! I. a ~ '~ f ~ om Boat '71.i PacE2bi~~E ' ~ - r' N Cpl d' J ~ 11/20!2012 8:15:37 AM CUMBERLAND COUNTY Inst.# 200437657 -Page 7 of 9 . , Exxrerr a-1 Legal Description of Easement to be acquired by the Borough of Wormieysburg from River School L.P. 8001( '711. PACE x$1.5 11/20/2012 8:15:37 AM CUMBERLAND COUNTY Inst.# 200437657 -Page 8 of 9 .. Storm Sewer Easement to be acquired from River School Limited Partnership by The Borough of Wormleysburg BEGINNING at a point on the easterly legal right-of-way line of North, Second Street which is also the westerly line of property of River School Limited Partnership, said point being S 38^15' 00" E, 155.05 feet from the northwesterly property corner (I.P.); thence eastwardly through the aforesaid River School Limited Partnership property N 50^ O1' 19" E, 150.07 feet to a point on the easterly property line; thence along said easterly line S 38^l5' 00" E, 20.00 feet to a point; thence westwardly through the River School Limited Partnership property S 50^ OI' 19" W, 150.07 feet to a point on the westerly property line; thence along said westerly line N 38^15' 00" W, 20.00 feet to a paint, the point of beginning. The above described line being the perimeter of a permanent easement of a fatal width of 20 feet. Also included along the entire length is an additional temporary easement width of 5 feet on both the left and right side of the permanent easement for the purposes of construction only. Total area of permanent easement: 3001.37 square feet, 0.069 Acres Total area of temporary easement: 1500.68 square feet, 0.035 Acres Easement lines to be as shown on the plat attached hereto and made a part of this description. Cert.i f }~ this to be recorded f n Cun7berland County PA ,,+t ~.~. .~.i ~t ' ' ',a., ~ ` ``.j.' ee''~~II.. t '`~~r"~ Recorder of Deeds 600K 7:L~. ~ac~?bis 11/20/2012 8:15:37 AM CUMBERLAND COUNTY Inst.# 200437657 -Page 9 of 9 EXHIBIT 2 l I . ~ 10(•fOF(1{°~mC'fohfll ~~~••~~. ~^~. piASAIhI a.11vw.+o-. o rt: x a x g i~ N s MDAOHOa DUABst~7i~IflOM O •4v(OIMOYR~4vR p~~g Q .", vw...w.,~a°ir'Hia ~ilitiil,~L NOWQ~ 113M~ I~tlOJ.S 13+iH1~ 113AId Nt/'Id attn.. V I l;i ~i Si00/II00 '2i'S ; ~ { ~~ s ,tj. I. r~' [ ~'>,.; I ! i l L~atl1S.LN01i~ Ht~ION 3 3 I ~ i 111 ____.._.......: ~....._..._~_......__F._. _ du!S ~..._._.. R ._ ___ _. _ .~ ._._ _. _...... ~f/~ c ~ 107 10~ >~ I ~ 4 _ ` I ZG~~' I } i ' 07i~ h ~~ •~ ((~,~ N _! W ~ ~~ (d `+ M U `~ I O ~ a~ 0 2 ..:u~ I° ~~o W .y +..'p -~~ ~ ~ o ~ C O N I~ I~ _ ~ } ~ ~ ~ ~ ~tn~ ~ dm 9 _i._ ,~ _ _ _....____ _ ..... ._ _.„..,.._._ 130.00 " (Deed) ~ __ I^' I I a• ~ ' ..._._, . i~~. ~ II ~o,~ 11 ^ i II y Ld •- o ,, ~ II 5~ ~ I 1 c '~- z 1 I l f 'I ~ ~ q ~ ~~VWj; ^I I Ip m ~~~~ • ~I ~ ~; ~ ~.. ~ 0 1 I ,~ r ' o~ ~ !~ ij ~ ~'~C~ UI 'VIII c 1 m v m ~` n ° I i 11 Ito ~ p Q r ~~`s cnl Ilq c ~ p ~ Z ~ i o Ic I I d' hIIN i ~. V ~ o iO~ >- ~ cD pl I c0 e ~ ,.y ~ ~ ~ Q Iw~ ^ ~ ^ '~ gi:NO III ~ ~. '-' ~ -.~~ Y!!! If ~~ i N d ~ *D~.Vi~ i'~ ~;~ ' ~ .i bd 9zlo ~ ~ • 111 ---- ~a~+ag ~~o!S ~ ~ '~srx . I I ,~0'! ~ Z 9L S ~ .. _~ _ ~~~ ,.. _ _~. ~,. J _ _ _ '' ~ ~ 4 . ~1 _ _ ~ > , _ :-: ~~> _.`'~ 1 13?1!S 2C-~rttt! W1.2lR~I r.~ ~ N 4) a... ~' .._.. .._ ._ _._,... r 4 ~ iC i i; .~i _ 1 __.._~'Sb1~-""'~~ij. 1~ ~ ~ -----..~-..,. ~ 5 - ~ f ~~ ~ E~'• ~`.,,.~ ~ ~ ~ ~~ o gk~. ~c~ 1 j ~ ~~II "' ti d~$ :~"~ I I JNifTT!(19 Jk11StX ~ 'k.cl~ t~ . ...._.. , ni __. ! W~I1 1 II t ... ~ 1 I. __- ,_ ~ a o y ' ~ ~ 1 ~~~~oa ~z W N C Q ~ W.~ ~:. ~~ ~~ ~~~ NO.W~~~W„m~~p}W. qO~C _ ~r~F~[W ~~YLLLL~777 ~)h-m V ~C „` u;In~m~~v~i~i~~ •`"• o z "~ fV N'1 Y1d l0~£ BOOZ/4/q 6Mp•Z ~da~uo~-6u~did ~t ~ ~ ~ rlllrAlAS1iN7/ `A1NflOa aNr'IY39gt1:1 '~""~°^"'~~~"Y'~ NJtioaoe Janas~lwaOM euriwTS.~.ow DNIe HH NID NH gnrr ,.+ •w~o.dakuw~ p wnrq r ~b~~~R ~ ~ NOWaar tl3NL~S Naois 183ais a3Al!! ~~[yvNat a 8 ,~ Jl ~~ . _ ~~ ~; ~~ ~ ~ ~ ~ ~sw ~~~ g ~ R R~~ ~ ~ .~ 3 ~~~~~~~ ~~w_~ ~ ~ ~,~.~~ ~~~ x YIV OZ~B 8002/lC/L 6Mp•6uidid . , VERIFICATION I, JOSEPH M. OLSHEFSKI, General Partner of River School, LP, hereby certify and state that the foregoing Complaint is true and correct to the best of my knowledge, information and belief; and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. r School Date: ~~' oZ~'o2~ 1 By: Joseph M. Olshefski, General Partner z John A. Gill, Esquire I.D. No. 41532 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 fro`'' 0TAR Attorney for Pl i tiff ' i 1 i . ; PENNSAN LI NIANT Y RIVER SCHOOL LP : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : CIVIL ACTION 12-7335 BOROUGH OF WORMLEYSBURG Defendant PLAINTIFF'S MOTION TO COMPEL DISCOVERY AND NOW, this 14th day of July, 2014, comes the Plaintiff, River School LP, by and through its attorney, John A. Gill, Esquire, and files the within Motion to Compel Discovery. 1. Plaintiff is River School LP, a Pennsylvania limited partnership, who maintains its principle place of business at 325 North Second Street, Wormleysburg, Cumberland County, Pennsylvania. 2. Defendant is Borough of Wormleysburg. 3. Plaintiff is owner of the property located at 325 North Second Street, Wormleysburg, Pennsylvania. 4. On August 31, 2004, pursuant to Defendant's request, Plaintiff granted Defendant a permanent easement and construction easement to enable Defendant to reconstruct and maintain a storm water drainage system that traversed Plaintiff's property. A copy of the Deed of Easement is attached to Plaintiff's Complaint as Exhibit 1. 5. Subsequent to the grant of Deed of Easement, Defendant undertook construction of various storm water improvements. 6. Under the Deed of Easement, Defendant was responsible for the repair and restoration of any area disturbed in the permanent easement, which includes grading, seeding, and stabilization of unimproved areas (Plaintiff's Complaint, Exhibit 1, Deed of Easement, Paragraph 2). 7. Defendant awarded a contract on December 16, 2004, to a private contractor for general construction, which included among other work items, the installation of Type C storm water Inlets. The general construction contract awarded required that the inlets be installed in accordance with PennDot specifications 408. 8. On October 14, 2008 the Defendant undertook to install a standard Type C storm water Inlet within the permanent easement area granted by Plaintiff to Defendant. 9. Plaintiff alleges that during installation of the Inlet by the Defendant, Defendant undermined a retaining wall on its property and in the easement area, causing the retaining wall and adjacent walkways and parking area to be damaged and requested Defendant to undertake repairs. 10. Under the Deed of Easement, Defendant was responsible for the repair and restoration of any disturbed area in the permanent easement areas, which includes grading, seeding, and stabilization. 11. At issue in the case is whether Defendant properly stabilized the disturbed area in the permanent easement area and complied with the terms of the easement. 12. On November 13, 2013, Plaintiff forwarded Defendant a Request for Admissions. A true and correct copy of the Request for Admissions is attached hereto and incorporated herein and marked as Exhibit 1. 13. On December 11, 2013, Defendant forwarded to Plaintiff its response to Plaintiff's Request for Admissions, a true and correct copy of which is attached hereto and incorporated herein and marked as Exhibit 2. 14. Defendant's reply to request, 9, 10, 23 and 33 do not comport with Pa.R.C.P. 4003.1(c) or Pa.R.C.P. 4014. Defendant's answers do not meet the substance of the requested admission and fails to provide a proper answer. 15. The Request for Admissions and Defendant's reply at issue are as follows: Plaintiff's Request for Admission: 9. PennDot Publication 408, sections 605.3 and section 206.3(b)4, requires backfill materials for inlets to be placed in uniform, loose layers, not exceeding 4 inches in depth and be compacted to required density by means of mechanical tampers. Defendant's Reply: 9. Denied. The Penn Dot document is a public document which speaks for itself. Plaintiff's Request for Admission: 10. The purpose of the requirements of section 605.3 and section 206.3(b)4 is to insure the back fill materials around and under inlets are properly stabilized. Defendant's Reply: 10. Denied. The Penn Dot document is a public document which speaks for itself. Plaintiff's Request for Admission: 23. The backfill materials were not compacted in accordance with PennDot Publication 408 section 605.3 and section 206.3(b)4 Defendant's Reply: 23. Denied. The publication speaks for itself By way of further answer, Defendant admits that the area could not be compacted with mechanical equipment because the area was too small. However, the area was hand tamped sufficiently. 16. Whether or not Defendant properly compacted and stabilized the backfill materials used in the installation of the Inlet is a main issue in the case. 17. Plaintiff requests that Defendant be required to provide required answers to the above identified Request for Admissions, or in the alternative, that the Court deem admitted Plaintiffs Request for Admissions 9, 10, and 23. 18. Additionally, Plaintiff requests that Defendant be required to supplement its answer to Request for Admission 33. The Request and answer is as follows: Request for Admission: 33. Photographs attached to the October 9, 2013 Deposition Transcript of Joseph Olshefski marked as River School. Exhibits 17 — 19, accurately depict the conditions of Plaintiff's retaining wall after Defendant's rebuilding of the storm inlet in the middle of River Street. Defendant's Reply: 33. Denied. On photo No. 17, the inlet is not shown, so that Defendant cannot determine whether this photo was taken after the inlet was installed. Photograph No. 19 clearly shows that the inlet was not installed when the photo was taken. 19. A copy of the deposition exhibits referred to in the Requests are attached here to as Exhibit 3. 20. Request for Admission 33 pertains to the rebuilding of a storm inlet in the middle of River Street. The Defendant's answer is directed toward a different inlet not subject to the Request and is non responsive. Plaintiff request that Defendant supplement its answer since December 31, 2013 but as of this date has failed to do so. 21. Plaintiff has been requesting since December 2013 that Defendant supplement its answers. On July 7 Plaintiffs counsel sought the concurrence of Defendant's Counsel via telephone. Defendant's Counsel replied on July 14: I have reviewed the answer to your Request for Admissions as you requested. I think the answers to numbers 9, 10 and 23 are proper and will stand as such. With regard to number 33, asking to admit the condition of the wall ata certain time I can admit with regard to #19 that it shows the condition of the wall with the inlet in the middle of the road. I cannot admit the same with regard to #17 because I cannot see the inlet. 22. No Judge has ruled on any prior matters in this case. WHEREFORE, Plaintiff request the attached Order be entered directing Defendant, Borough of Wormleysburg, provide an amended response to Plaintiff's Request for Admissions, 9, 10, 23, and 33, within twenty (20) days from the date of this ORDER. If Defendant fails to reply as required, Request for Admissions 9, 10, 23, and 33, will be deemed "Admitted." Plaintiff further requests such other relief as the Court deems appropriate. Date: 7 /V, -1i/ Jo Th A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-7522 #41532 Attorney for Plaintiff River School, LP EXHIBIT 1 John A. Gill, Esquire I.D. No. 41532 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 Attorney for Plaintiff RIVER SCHOOL LP : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : CIVIL ACT ON 12-7335 BOROUGH OF WORMLEYSBURG Defendant PLAINTIFF, RIVER SCHOOL LP'S, FIRST REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, BOROUGH OF WORMLESBURG To: Steven M. Liero, Esq. Connor, Weber & Oberlies 171 West Lancaster Avenue, Suite 100 Paoli, Pennsylvania 19301-1775 Attorney for Defendant, Borough of Wormlesyburg Pursuant to Pa.R.C.P. 4014, Plaintiff, River School LP, requests that Defendant, Borough of Wormleysburg (Defendant), answer the following Request for Admissions separately and fully, in writing, and under oath on or before thirty (30) days from date of service in accordance with Pa.R.C.P. 4014. 1 . Dennis Redding (Redding) is the Public Works Supervisor for Defendant. 2. Gary Berresford (Berresford) has been the Borough Manager, Code Enforcement . Officer, and Zoning for Defendant since September 10, 1990. 3. In 2004, Defendant approached Plaintiff requesting that Plaintiff extend a Deed of Easement to Defendant to enable Defendant to reconstruct and maintain a storm water drainage facilities which Defendant owned and operated that traversed Plaintiff's property. Plaintiff complied with Defendant's request and granted Defendant a Deed of Easement dated August 31, 2004, a true and correct authentic copy of which is attached to Plaintiff's Complaint and marked as Exhibit 1. 4. Exhibit A to the Deed of Easement (Easement Plan) is a scaled plan prepared by an engineer hired by the Defendant which includes and identification of the easement area to be acquired by the Defendant. 5. The Easement Plan accurately identifies the location of Plaintiffs property boundaries and building location. 2 6. Subsequent to the grant of the Deed of Easement, Defendant undertook construction of various storm water improvements. 7. The Defendant awarded a contract on December 16, 2004, to Marks Contracting for general construction, which included among other work items the installation of Standard Type C Storm Water Inlets.(Inlets) 8. The general construction contract awarded to Marks Contracting required that the Inlets be installed in accordance with PennDot Publication 408. 9. PennDot Publication 408, sections 605.3 and section 206.3(b)4, requires backfill materials for inlets to be placed in uniform, loose layers, not exceeding 4 inches in depth and be compacted to required density by means of mechanical tampers. 10. The purpose of the requirements of section 605.3 and section 206.3(b)4 is to insure the back fill materials around and under inlets are properly stabilized. 11. On October 14 and 15 2008, Defendant proceeded to construct and install a storm inlet P-1 Std. Type C Inlet (P-1) identified on the site plan for the River Street storm sewer addition dated July 23, 2008, a true and correct authentic copy of the Plan is attached to Plaintiff's Complaint and marked as Exhibit 2. (Site Plan) 12. The Site Plan accurately identifies the location of Plaintiff's property boundaries, permanent easement area, and the installed location of P 1. 13. The Borough did not invite bids from contractors for the installation of P1 because it was a project the Borough could perform. 14. P1 was installed for overflowcoverage for the existing inlet in the middle of River Street. 15. P1 was installed within the permanent easement area. 4 16. The P1 inlet installed was a 36"x54" x 42" pre cast two piece inlet. The top piece of the inlet rests on the bottom piece and is not pinned or doweled. 17. To install P1 Defendant excavated a hole, approximately 48 inches wide, 60 inches long and 48 inches deep, said excavation was within 4 inches of Plaintiff's retaining wall. 18. The Defendant used the Site Plan, page C 001, to locate the area to install P1. 19. After installation of P 1 , on October 15, 2008, P1 was within '/2 inch to 1 inch parallel to the inlet in the middle of River Street. 20. After installation of P1, on October 15, 2008, the top section of P1 was flush with the bottom section on all sides. 5 21. After P1 was put in place, the Defendant backfilled the over dig area with stone. 22. The Defendant backfilled the back side of P1 over dig with stone placed in one foot lifts and then compacted with a digging bar. 23. The backfill materials were not compacted in accordance with Peru -Dot Publication 408 section 6053 and section 206.3(b)4. 24. During construction and installation of P-1 Defendant disturbed the area within the permanent easement area from the retaining wall on Plaintiff's property to its property line .on River Street. 25. During installation and construction of P1, Defendant failed to stabilize areas disturbed and backfilled which eventually caused Plaintiff's retaining wall to bow outward. 6 26. The Defendant failed to repair and restore disturbed areas in the permanent easement areas as required by the Deed of Easement. 27. Defendant failed to repair and restore the disturbed areas in the permanent easement area, as nearly as practicable, to its condition prior to its construction activities. 28. Defendant's failure to repair and restore disturbed areas in the permanent easement area resulted in Plaintiff's retaining wall and adjacent walkways and parking area to become unstable and damaged. 29. On January 20, 2011, Berresford, acting in his capacity as the Code Enforcement Officer of Defendant sent Plaintiff a memo note with a citation, citation number CDEF2011-33, a true and correct, authentic copy of which is attached to the Berresford Deposition as Exhibit 3. 30. It was Berresford's opinion as the Code Enforcement Officer of Defendant, after viewing Plaintiff's retaining wall in January 2011, that Plaintiff's retaining wall was unstable. 7 31. It is the opinion of Defendant that "stabilization" means that there would be no subsidence of any material so that the item would not be "sinking" or prevent something from sinking. 32. Photographs attached to the October 9, 2013 Deposition Transcript of Joseph Olshefski marked as River School Exhibits 13 — 16, and 20, accurately depict the condition of Plaintiffs retaining wall and adjacent area prior to the Defendant's installation and construction of P 1 . 33. Photographs attached to the October 9, 2013 Deposition Transcript of Joseph Olshefski marked as River School Exhibits 17 — 19, accurately depict the conditions of Pla'ntiff s retaining wall after Defendant's rebuilding of the storm inlet in the middle of River Street. 34. Photographs attached to the October 9, 2013 Deposition Transcript of Joseph Olshefski marked as River School Exhibits 1 — 12 accurately depict the condition of Plaintiff's retaining wall after the installation of Pl. 8 35. In January 2011 Defendant notified its insurer, Selective Insurance, that Plaintiff made a claim against Defendant for damages to Plaintiff's retaining wall. 36. Selective made a liability determination that Benatec Associates would be the party that bears liability in connection with Plaintiffs damages. 37. Benatec Associates was not involved in the supervision of the installation or construction of P-1. 38. Prior to October 14, 2008 Redding passed by Plaintiff's retaining wall several times per day. 39. Prior to October 14, 2008, Defendant did not contact or inform Plaintiff that its retaining wall was unstable. 9 40. The document attached to the October 9, 2013 Deposition Transcript of David Boyd marked as River School Exhibit 24 sets forth the reasonable and necessary scope of work to repair and restore the areas in the permanent easement area disturbed by Defendant as nearly as practicable, to its condition prior to its construction activities. Date: 1V'V ZOO 10 A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-7522 #41532 Attorney for Plaintiff River School, LP CERTIFICATE OF SERVICE I HEREBY CERTIFY that an original and two copies of Plaintiff's Request For Admissions Directed to Defendant, Borough of Wormleysburg was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Steven M. Liero Connor, Weber & Oberlies 171 West Lancaster Avenue, Suite 100 Paoli, Pennsylvania 193014775 Date: Peggy Morrison, Secretary D,EC;-11-2013 12:25 CONNOR WEBER OBERLIES 610E401520 P.O2 CONNOR, WEBER & OBERLIES By: Steven M. Liero, Esquire Attorney I.D. No. 34495 171 West Lancaster Avenue, Suite 100 Paoli, PA 19301 (610-640-2803 Attorney for Defendant Borough of Wormleysburg IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW RIVER SCHOOL, LP, Plaintiff, v. BOROUGH OF WORMLEYSBURG Defendant. : NO. 127335 : JURY TRIAL DEMANDED DEFENDANT, THE BOROUGH OF WORMLEYSBURG'S RESPONSES TO PLAINTIFFS REQUEST FOTI ADMISSIONS 1. Admitted. 2. Admitted. 3. Admitted, 4. Admitted. 5. Admitted. 6. Admitted that construction of various storm water improvements took place after the grant of Easement but we deny that Defendant made improvements in the area covered by the easement. 7. Admitted with the addition that Marks Contracting did not install the Standard Type C Storm Water Inlets. Instead, the inlet in question was installed by the Borough. 8. Admitted. DEC. -11-2013 12:25 CONNOR WEBER, OBERLIES 6106401520 P.Ei3 9, Denied. The Penn Dot document is a public document which speaks for itself. 10. Denied. The Penn Dot document is a public document which speaks for itself. 11. Admitted.. 12. Denied as stated. On the contrary the inlet was installed in the right of way of River Street and not in the easement. 13, Admitted. 14. Admitted. 15. Denied. On the contrary, P1 was installed in the right of way of River Street. 16. Admitted. 17. Admitted as to the dimensions of the hole. After reasonable investigation, Defendant is without knowledge of information sufficient to form a belief as to the truth of the statement that the excavation was within 4' of the retaining wall. The same is therefore denied and strict proof is demanded at trial. 18. If Plaintiff is referring to the 2004 plan, the answer is no. If the Plaintiff is referring to the 2008 plan, the answer is yes. 19. Admitted that it was parallel. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that P1 was within 1/2' to 1" parallel to the inlet in the middle of the road. The same is therefore denied and strict proof is demanded at trial. 20. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief that the top section of the P1 was flush with the bottom section on all sides. The same is therefore denied and strict proof is demanded at trial. 21. Admitted. LEC -11-2013 12:25 CONNOR WEBER OOBERL I ES 6106401520 P.04 22. Admitted in part and denied in part, It is admitted that P1 was backfilled with a digging bars. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that it was backfilled in one fast lift. The same is therefore denied and strict proof is demanded at trial, 23. Denied. The publication speaks for itself. By way of further answer, Defendant • admits that the area could not be compacted with mechanical equipment because the area was too small. However, the area was hand tamped sufficiently. 24. Denied. It is denied that any construction or installation disturbed the area within the permanent easement or that the construction took place within the permanent easement. On the contrary, construction took place in the right of way of River Street, 25. Denied. It is denied that defendant failed to stabilize areas disturbed or backfilled or that any activity the by the Borough caused Plaintiffs retaining wall to bow outward, Strict proof this averment is demanded at trial. 26, Denied. It is denied that any work performed by the Borough occurred in the permanent easement and it is further denied that any work performed by Defendant disturbed or destabilized the wall or that any work done by the Borough required it to repair or restore disturbed areas. Strict proof of this averment is demanded at trial. 27. Denied for the reasons set forth in answer to Request for Admission No. 26 Moreover, no work done by the Borough disturbed the retaining wall in any fashion. 28. Denied for the reasons set forth in answer to Request for Admission Nos, 26 and 27. Moreover, no work done by. the Borough caused the retaining wall or adjacent walkways or parking area to become unstable and damaged. Strict proof this averment is demanded at trial. 29. Admitted. DECc11-2013 11-2013 1226 CONNOR WEBER OBERL I ES 6106401520 P.05 30, Admitted. 31. Denied. It is denied that Defendant means by stabilization that there would be no - more subsidence or sinking. 32. Admitted only that the photos show the condition sometime before the inlet was put in. 33. Denied. On photo No. 17, the inlet is not shown, so that Defendant cannot determine whether this photo was taken after the inlet was installed. Photograph No. 19 clearly shows that the inlet was not installed when the photo was taken. 34. Admitted that photos 1-12 show the condition of the wall at some point after the inlet was installed. 35. Admitted. 36. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of that averment that Benatec would be the party that bears liability in connection with Plaintiffs damages. The same is therefore denied and strict proof is demanded at trial. 37. Admitted with the addition that Benatec Associates provided the drawings showing where the inlet was to go. 38. Admitted. 39. Admitted. DEC -11--2013 12:26 CONNOR WEBER OBERLIES 6106401520 P.06 VERIFICATI.O..N 1, Gary Berresford, Borough Manager of Worrnleysburg Township, verify that the statements contained in the foregoing Responses to Plaintiff's Request for Admissions are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A, Section 4904 relating to unsworn falsification to authorities, DATE DEC -11-2013 12:26 CONNOR WEBER OEERLIES 6106411520 P.07 40. Denied. Defendant denies that its installation caused any damage to Plaintiffs property and it is further denied that Exhibit No. 34 sets forth reasonable or necessary scope of work to repair or restore any areas disturbed by Defendant to its condition prior to construction activities. DATE: 13 BY: ER & OBERLIES AMP ST ms, LIERO, ESQUIRE Atto - , or Defendant, Borough of Wormleysburg EXHIBIT 3 AiOMNI i, CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of Plaintiff's Motion to Compel Discovery, Directed to Defendant, Borough of Wormleysburg was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Date: 7//9// Steven M. Liero Connor, Weber & Oberlies 171 West Lancaster Avenue, Suite 100 Paoli, Pennsylvania 19301-1775 Attorney for the Defendant —7)-7-‘2'; /1749- L`r Peggy Morrison, Secretary RIVER SCHOOL, LP : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF WORMLEYSBURG DEFENDANT : NO. 12-7335 CIVIL IN RE: MOTION TO COMPEL ORDER OF COURT AND NOW, this 22nd day of July, 2014, upon consideration of the Plaintiffs Motion to Compel, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon Defendant to show cause why the relief requested by Plaintiff should not be granted; 2. Defendant will file an Answer on or before August 15, 2014; 3. Hearing/Argument on the matter will be held on Tuesday, September 16, 2014, at 11:00 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, John Gill, Esquire Attorney for Plaintiff Steven Liero, Esquire Attorney for Defendant bas fr/;15-cL /7/..2.4q \\1\k M. L. Ebert, Jr., J. rri CONNOR, WEBER & OBERLIES By: Steven M. Liero, Esquire Attorney I.D. No. 34495 171 West Lancaster Avenue, Suite 100 Paoli, PA 19301 (610-640-2803 Attorney for Defendant Borough of Wormleysburg IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW RIVER SCHOOL, LP, : NO. 12-7335 Plaintiff, v. BOROUGH OF WORMLEYSBURG Defendant. C) r, rn c cn r— -- ."°J c.3 cp C" LJ CD -.<a DEFENDANT, BOROUGH OF WORMLEYSBURG'S ANSWER TO PLAINTIFF'S MOTION TO COMPEL ANSWER TO REQUEST FOR ADMISSIONS 1. Denied. After reasonable investigation, responding defendant is without knowledge or information to form a belief as to the truth of this averment. The same is therefore denied and strict proof is demanded at trial. 2. Admitted. 3. Denied. After reasonable investigation, responding defendant is without knowledge or information to form a belief as to the truth of this averment. The same is therefore denied and strict proof is demanded at trial. 4. Admitted. 5. Denied as stated. On the contrary Defendant began construction on a storm water inlet on River Road owned by the Borough, and beyond the Plaintiff's property and outside of the above mentioned easement. 6. Admitted with the addition that work performed by the Borough installing the water inlets did not occur within the easement and did not damage the Plaintiff's retaining wall, or surrounding property, which is the subject matter of this law suit. 7. Denied. The contract speaks for itself. By way of further answer, Defendant avers that this inlet was not installed on Plaintiff's property, but across the street from it. 8. Denied. The contract speaks for itself. 9. Admitted that the Plaintiff so alleges. However, the responding Defendant denies that any work occurred within the easement area or that the installation of the storm water inlet damaged any of the Plaintiff's property as averred herein. Strict proof of this averment is demanded at trial. 10. Admitted with the addition that none of Defendant's work damaged any property of the Plaintiff and did not occur within the permanent easement area. 11. Denied as stated. On the contrary the main issue in this case is whether the installation of the storm water inlet damaged the Plaintiff's property in any fashion. Whether the installation occurred within the easement area or outside of it is irrelevant to the issue of whether any work by the Borough damaged Plaintiff's property. 12. Admitted. 13. Admitted. 14. Denied as a conclusion of law requiring no responsive pleading. By way of further answer responding Defendant avers that its answers do comport with the Pennsylvania Rules of Civil Procedure and meet the substance of requested admissions. 15. Admitted with the addition that Defendant properly denied the Request for Admissions since the request amounts to a conclusion of law which is not a proper subject for Request for Admissions. 16. Denied as stated. On the contrary the main issue in this case is whether any work done by the Borough damaged the Plaintiff's property in any fashion. Defendant maintains that the wall in question and the surrounding area were in poor shape as shown by before and after photographs and were not affected by the work. (See Exhibit "A") 17. Denied as a conclusion of law requiring no responsive pleading. 18. Admitted that only the Request for Admissions and Defendant's reply are accurate. Subsequently Defendant wrote to the Plaintiff that it could admit that the genuineness of photograph number 19 but not number 17 for the reason quoted in paragraph 21 of the Plaintiff's Motion. 19. No copy of the deposition was attached hereto. 20. Defendant hereby incorporates its answer to Paragraph 18 above as if the same were set forth hereinafter. 21. Admitted. 22. Admitted. WHEREFORE, Defendant of Borough of Wormleysburg requests this Honorable Court to deny and Plaintiff's Motion to Compel Answers to Request for Admissions. CONNOR, WEBER & OBERLIES DATE: BY: 0, UIRE A or Defendant, Borough of Wormleysburg CONNOR, WEBER & OBERLIES By: Steven M. Liero, Esquire Attorney I.D. No. 34495 171 West Lancaster Avenue, Suite 100 Paoli, PA 19301 (610-640-2803 Attorney for Defendant Borough of Wormleysburg IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW RIVER SCHOOL, LP, : NO. 12-7335 Plaintiff, v. BOROUGH OF WORMLEYSBURG Defendant. DEFENDANT, BOROUGH OF WORMLEYSBURG'S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL ANSWERS TO PLAINTIFF'S REQUEST FOR ADMISSIONS I. FACTS Plaintiff, River School, in its Complaint claims that the Borough of Wormleysburg, in building of storm water inlet adjacent to its old stone retaining wall on River Road damaged the retaining wall and the surrounding property. The River School claims that the inlet constructed by the Borough was built within an easement granted to the Borough sometime before and the terms of the easement require the Borough to repair the damage to the wall and to the adjacent areas that was done in building the inlet. The Borough strictly denies that any work it did any damage to the wall or adjacent areas. Fortunately the Borough has photographs of the area before the work was begun and photographs afterward as can be seen by a quick perusal there is little or no difference in the condition of the wall before and after. Defendant believes that the wall in question is approximately 80 years old, and the before construction picture showed that it was in bad shape before any construction began. That work was done in 2008, and the Plaintiff's did not complain of any damage to its property until the Borough cited the school for the condition of the retaining wall in 2011 and required it to be repaired. It was only thereafter that the Plaintiff brought the present action claiming that the Borough's work had damaged its property. Defendant denies that the inlet was built within the above mentioned easement. Attached hereto as Exhibit "B" is a blueprint showing the area in question. It is fairly clear that from itthe inlet was built within the right of way of the roadway owned by the Borough. There is no indication from the blueprint that the easement continues beyond the stone wall in question and into the roadway. In any case, the whole issue of the boundaries of the easement is a red herring in that the presence or absence of an easement is irrelevant. The real question here is whether any work done by the Borough damaged the Plaintiff's property whether an easement was present or not. The Defendant is in the process of supplying the Plaintiff a Liability Expert Report indicating that no damage was done to the wall as a result of the Borough's work. Plaintiff had a survey performed which reported to show that the inlet was built within the easement. Defendant has not to date had the area surveyed, but the blueprints themselves dearly show that the inlet was built in the street right of way and not the easement. In any case, the presence or absence of an easement is irrelevant to the question whether Defendant's work caused any injury to the Plaintiff. II. ISSUE Did Defendants answers to Request for Admissions properly meet the substance of the request? Suggested answer: Yes. III. LEGAL ANALYSIS The Plaintiff requests that this Court compel Defendant to file supplemental answers to Requests for Admissions 9, 10, 23 and 33. Request Number 9 asks Defendant to admit the requirements of two sections of Penn DOT Publication 408 with respect to backfilling. Such a request asks for a conclusion of law. The Courts in Pennsylvania have consistently held that a request for a conclusion of law or legal opinion is not a proper subject for a Request for Admissions. Brindley v. Woodland Village Restaurant Inc., et al., 652 A.2d 865 (Pa. Super. 1995); Estate of John Borst, et al. v. Edward Stover, Sr., 2011 Pa. Super. 222 (2011). Likewise, Request for Admission Number 10 requests Defendant to admit the purpose of the requirements of Section 408. This again is requesting a conclusion of law which is improper for a Request for Admissions. Request Number 23 asks Defendant to admit that the backfill for the inlet was not compacted in accordance with Penn DOT Publication 408. This is also a conclusion of law which is not a proper subject for a Request for Admission. Nevertheless, Defendant did answer this Request indicating that the area could not be compacted with mechanical equipment because the area was too small. This is a sufficient answer and meets the substance of the Plaintiff's request. Finally, Request Number 33 asks Defendant to admit that the Exhibits 17 through 19 of Olshefski s Deposition accurately depict the condition of Plaintiff's retaining wall following the rebuilding of the storm inlet in the middle of the street. Defendant did respond to this Request, and later after a discussion with Plaintiff's attorney wrote that Exhibit No. 19 did show the condition of the wall with the inlet in the middle of the road but with regard to No. 17, Defendant could not admit it because the inlet could not be seen. The same is true for Exhibit No. 18 since again the inlet could not be visualized in the picture. In sum, Defendant has admitted everything properly requested in the Request for Admissions and denied those matters which constitute conclusions of law and are not proper subjects for Request for Admissions. DATE: Respectfully submitted, CONNOR, WEBER & OBERLIES BY: IER4' •UIRE ey for Defendant, Borough of Wormleysburg VERIFICATION I, Steven M. Liero, Esquire, depose and say that I am the attorney for Defendant, Borough of Wormleysburg, and I verify that the statements contained in the foregoing Answer to Plaintiffs' Motion to Compel Discovery are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. STEVEN LIERO, ESQUIRE Dated: August 12, 2014 EXHIBIT " A" .. 1.11, As PI Ar IM A+a IMM. ia. 701 900.." OM1 1+r A1f Ra F. pax 1R $ wsYrn 7L•. PaI..i Aa 1R 1.11 Pr, P. 1r WRIT. Vk ,i Vp A i'R :Mwa' W IRS P!*2 i MI, Mi afal MY A. W AL. F+�Y h.�rs YM aa. Ka..- ... .1Cr �c is • cz- f • 7 EXHIBIT "B" hx,..Worrray‘IThrerSIACki ,[ 07/09/2004 61134. Pim Table 11417IN32.APP USTA701 \ DENATECSPEN_IBLSNSCREEMT01. 5701214 MWER \ POW PLATS.$1, Plo1 Driver. 10.1‘11432APP USIATMAPPLOTPITVRS.COLDR.PLT N. SECOND STREET IA. •-• wroc UN 464 a 44.0 a 4.4. ama MO 160 Mat a Ga. la 6.40 Oa= 1.1•4 a Man al 4461 Oa. 16... a .0.4021121XV 4t. . nr"Frof* • jovt,,• — ; ."'''''"LE -671 RIGHT-OF-WAY UNE 0875TCW 5' TEMPORARY CONSTRUCTION EASEMENT 70t RiW Exii4Intot ...... , 155.05' /4._ 5' TEMPO AR' CONSTR CTION EASEME T LOTS 6t Um 74 DEED BOOK 154,PAGE 461 PLAN BOOK 1,PAGE 71 LOT 129 Extsii5` VCP Approrelaviki? EXIST. 15" PIPE TO BE SLIPPED LINED WITH NEW PVC LINER - EXIST. 15" STORM SEWER TO BE LOCATED BEFORE CONSTRUCTION BEGINS ,0073E NEW SS MANHOLE#3 20" PERM CON STIR EASEME NENT CTIDN 7/T EX/SP/VG BUILDING 1ST, SS INLET 0 BE REBUILT/ / N. RIVER STREET • TOTAL AREA LOT 129 : 19,976.23 Sq. Ft. 0.228 Acres PERMANENT EASEMENT METES AND ROUNDS 1. N.50°01'19E, - 150.07' 2. S.361 5'00"E, - 24.00' 3. S.50°01'194W. - 150.07' 4. .N.36°1500VV, - 20.00' 7//2 E'4Soa Hare.Ve IECL414. trtfpfr -2r-iv fy- w 4 0 2 TEMPORARY EASEMENT 1,500.6B Sq. Ft., 0.035 Acres PERMANENT EASEMENT 3001.37 Sq. Ft.; 0.069 Acres LEGAL RiGHT-QF-WAY LI/FE • ComPtia 5' TEMPORARY CONSTRUCTION' EASEMENT 150.53' LOT 12B 15' LEGAL NEW SS RIGHT-OF-WAY 0 C) B ry: jrArLHOLE#2 F I E Mac, rivc xf II Loccitfon 4 -kugilmora'$i SCALE: 1" 11 clEsiGNED GI. D. WWMI G.L.D. PLAN SHOWING EASEMENT TO BE ACQUIRED BY THE BOROUGH OF WORMLEYSBURG FROM RIVER SCHOOL LIMITED PARTNERSHIP CUMBERLAND COUNTY, PENNSYLVANIA 1131iitIATEC ASSOCiATES &gine:era-and Marmon 200 Airport Rnad, Capital City Alipatt Now Cm:aback:41'A 17070 77.9Q1 -7J57 Frac 71 74.01-1(.139 eal? dr1 SU iT.8cr CC, JULY 200 of 1 CONNOR, WEBER & OBERLIES By: Steven M. Liero, Esquire Attorney I.D. No. 34495 171 West Lancaster Avenue, Suite 100 Paoli, PA 19301 (610-640-2803 Attorney for Defendant Borough of Wormleysburg IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW RIVER SCHOOL, LP, : NO. 12-7335 Plaintiff, V. BOROUGH OF WORMLEYSBURG Defendant. CERTIFICA I E OF SERVICE I, S I EVEN M. LIERO, ESQUIRE, hereby certify on this 12th day of August, 2014, that a true and correct copy of the Answer to Plaintiff's Motion to Compel Discovery of Defendant, Borough of Wormleysburg, served upon all counsel of record at the address listed below by U.S., First Class Mail: John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 CONNOR 7-4,41A • RUES, P.C. Alird STEW . LIERO, ESQUIRE Attorney for Defendant Borough of Wormleysburg BY: RIVER SCHOOL, LP : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. BOROUGH OF WORMLEYSBURG : DEFENDANT : NO. 12-7335 CIVIL IN RE: MOTION TO COMPEL DISCOVERY ORDER OF COURT AND NOW, this 17th day of September, 2014, upon consideration of the Plaintiff's Motion to Compel Discovery, the Defendant's response thereto and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff's Motion to Compel Discovery is DENIED. John Gill, Esquire Attorney for Plaintiff Steven Liero, Esquire Attorney for Defendant bas By the Court, '"•0 ;7 Ci