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Updated 1/1/2011
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA ,
STEVEN A. EWING AND JANE B. EWING, NO.
MU) Z,_
Plaintiffs
vs. Complaint — Civil Aco
TAM L. LY, CASSANDRA L. LY, ERIK ` ""
S. OLSEN, AND CYNTHIA M. OLSEN ,
Defendants
CIVIL ACTION — COMPLAINT
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.
Lawyer Referral Service
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(800) 990 -9108
1
C # 26 sz
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STEVEN A. EWING AND JANE B. EWING, NO.
Plaintiffs :
vs. Complaint — Civil Action
TAM L. LY, CASSANDRA L. LY, ERIK
S. OLSEN, AND CYNTHIA M. OLSEN
Defendants :
COMPLAINT
NOW COME, Plaintiffs Steven A. Ewing and Jane B. Ewing, by and through their
counsel, Capozzi Adler, P.C., and file the following Complaint for money damages and
injunctive relief, and in support thereof, avers as follows:
1. Plaintiffs Steven A. Ewing and Jane B. Ewing are husband and wife (collectively, the
"Ewings "), and reside at 1425 Rockledge Drive, Carlisle, PA 17015, more particularly
described as Lot 2 on Final Subdivision Plan for Harold S. Swarner and Debra S.
Swarner dated August 25, 2005 and recorded May 26, 2006 in the Office of the Recorder
of Deeds of Cumberland County, Pennsylvania at Plan Book 92, Page 81 (the "Ewing
Property "). A true and correct copy of the Final Subdivision Plan (the "Plan") is attached
hereto as Exhibit "A."
2. Defendants Tam L. Ly and Cassandra L. Ly are husband and wife (collectively, the
"Lys "), and reside at 1435 Rockledge Drive, Carlisle, PA 17015, more particularly
described as Lot 3 on Final Subdivision Plan for Harold S. Swarner and Debra S.
Swarner dated August 25, 2005 and recorded May 26, 2006 in the Office of the Recorder
of Deeds of Cumberland County, Pennsylvania at Plan Book 92, Page 81 (the "Ly
Property "). See Exhibit "A."
3. Defendants Erik S. Olsen and Cynthia M. Olsen are husband and wife (collectively, the
"Olsens "), and reside at 1415 Rockledge Drive, Carlisle, PA 17015, more particularly
described as Lot 1 on Final Subdivision Plan for Harold S. Swarner and Debra S.
Swarner dated August 25, 2005 and recorded May 26, 2006 in the Office of the Recorder
of Deeds of Cumberland County, Pennsylvania at Plan Book 92, Page 81 (the "Olsen
Property"). See Exhibit "A."
4. The Lys and the Olsens are sometimes collectively referred to herein as the
"Defendants."
5. The Ewings acquired the Ewing Property by deed from Harold S. Swarner and Debra R.
Swarner, brother and sister, dated December 29, 2006, and recorded December 29, 2006
the Office of the Recorder of Deeds of Cumberland County, Pennsylvania at Book 278,
Page 917. A true and correct copy of this deed is attached hereto as Exhibit `B."
6. The Olsens acquired the Olsen Property by deed from Harold S. Swarner and Debra S.
Swarner, brother and sister, dated December 29, 2006 and recorded January 3, 2007 in
the Office of the Recorder of Deeds of Cumberland County, Pennsylvania at Book 278,
Page 1053. A true and correct copy. of this deed is attached hereto as Exhibit "C."
7. The Lys acquired the Ly Property by deed from Charles J. McKain and Julie F. McKain,
husband and wife, dated July 29, 2010 and recorded August 5, 2010 in the Office of the
Recorder of Deeds of Cumberland County, Pennsylvania at Instrument No. 201021546.
A true and correct copy of this deed is attached hereto as Exhibit "D."
8. On Apri128, 2006, a Declaration of Easement and Covenants for Rural Residential Lane
was recorded with the Office of the Recorder of Deeds of Cumberland County at Book
0726, Page 2641 (the "Declaration"). A true and correct copy of the Declaration is
attached hereto as Exhibit "E."
9. The Ewing Property, the Ly Property, and the Olsen Property are all subject to the
Declaration and are bound by its covenants as per the deeds conveying said properties to
the Ewings, the Lys, and the Olsens.
10. The Declaration provides that the Board of Supervisors of South Middleton Township
has required the creation of a Rural Residential lane to serve the Ewing Property, the Ly
Property, and the Olsen Property, and pursuant to such, an easement, covenants and
conditions were therefore imposed upon the owners of the Lot 1, Lot 2, and Lot 3 as
shown on the Final Subdivision Plan.
11. Among other covenants, the Declaration provides, in relevant part:
a. "The owners of lots 1, 2 and 3 shall retain fee simple ownership of said lane. This
lane shall remain in private ownership in perpetuity, and shall never be offered for
dedication."
b. "Any and all expense, costs, or other charges incurred in the construction and
maintenance of the proposes [sic] rural residential lane shall be allocated
according to the following covenants...:
i. The owners of each lot agree to assume 33.33% of the cost and
responsibility for maintenance (including snow and ice removal), repair,
and improvement of the Rural Residential Lane, together with all
appurtenances and drainage facilities. (emphasis added).
ii. The covenant to bear the cost to improve, maintain, and repair the Rural
Residential Lane, appurtenances and drainage facilities shall be
enforceable by a civil action ..."
iii. Parking on or along a Rural Residential lane shall be prohibited."
See Exhibit "E ", Section 3(c), 3(d), 3(g).
12. The Declaration further provides that the above listed covenants "... shall be deemed to
be covenants running with the land and shall be binding upon the owners of lots 1, 2, and
3 and their heirs, executors, administrators, successors, and assigns." See Exhibit "E ",
Section 4.
13. The Declaration states no requirement for a neighbor to consult with the other
homeowners owning the Rural Residential Lane to undertake repairs or remedies in the
Infiltration Trench or the Cul -de -Sac. The Ewings nevertheless attempted to involve
their neighbors as a matter of courtesy.
14. The Plan provides that a portion of the Ewing Property is located downhill from the Ly
Property and the Olsen Property at an approximate 7.40% grade. See Exhibit "A ", Page
5. As such, a portion of rainfall that accumulates naturally flows downhill from the Ly
Property and the Olsen Property, along the Rural Residential Lane, and towards the
Ewing Property.
15. The Plan also provides design plans for the cul -de -sac shared by the Ewings, the Lys, and
the Olsens as part of the Rural Residential Lane (the "Cul -De- Sac "), and such design
plans have been approved by the Board of Commissioners of the South Middleton
Township as of April 16, 2006.
16. According to the Plan, the Cul -de -Sac is intended to have an elevation of 558 feet to 554
feet.
17. The Plan indicates that the Cul -De -Sac contains gravel infiltration trenches to
accommodate overflow from natural rainfall, measuring 3' wide, and 2.5' in depth at
minimum. The Plan also indicates that there are four separate infiltration trenches
surrounding the Cul -de -Sac. The first trench is bordered entirely by the Olsen Property
and is intended to have a top elevation of 555.50 feet ( "Trench 1 "). The second trench is
bordered by both the Olsen Property and the Ewing Property, with half bordering the
Olsen Property and half bordering the Ewing Property with an intended top elevation of
554.00 feet ( "Trench 2 "). The third trench is bordered by both the Ewing Property and
the Ly Property, with half bordering the Ewing Property and half bordering the Ly
Property with an intended top elevation of 554.00 feet on the Ewing Property and 555.00
feet on the Ly Property ( "Trench 3 "). The fourth trench is bordered entirely by the Ly
Property and is intended to have a top elevation of 558.00 feet ( "Trench 4 "). For a detail
of Trench 1, Trench 2, Trench 3, and Trench 4, see Exhibit "A ", Page 6. Trench 1,
Trench 2, Trench 3, and Trench 4 are sometimes collectively referred to as the
"Infiltration Trenches."
18. The Infiltration Trenches are designed such that naturally occurring rainwater can seep
into the gravel and be supported by clay at the bottom, thus allowing such water to now
freely without accumulation and protect both the Cul -de -Sac and the properties adjoining
the Cul -de -Sac from experiencing flooding conditions.
19. The Cul -De -Sac also contains embankments adjoining the Infiltration Trenches to
prevent the flow of water from reaching the Ewing Property, the Ly Property, and the
Olsen Property (the "Embankments "). The Embankments also prevent overflowing
waters from the Infiltration Trenches in unusually high rainfalls from flowing onto the
adjoining properties.
20. The Infiltration Trenches and the Embankments are designed to provide a synergistic,
comprehensive stormwater management system; if one section of the system is
compromised or obstructed, the rest of the stormwater system is incapable of functioning
properly.
21. On or about March or April of 2009, the Olsens began construction on their residence at
the Olsen Property.
22. During the construction of their residence, the Olsens failed to follow the Plan, and failed
to take appropriate precautions to prevent dirt, debris, and water runoff from
accumulating in the Cul -De -Sac, in the Infiltration Trenches, and on the Ewing Property.
23. Specificially, the Olsens failed to follow the Plan elevation specifications to enter their
property from the Cul -de -Sac, and to place barriers around Trench 1 to prevent
compaction, and to place protective silt fences around the area of their residential
construction to prevent dirt, debris, and water runoff from accumulating in the Cul -De-
Sac, in the Infiltration Trenches, and on the Ewing Property.
24. On or about April of 2009, the Ewings advised the Olsens that they needed to take
preventative measures to prevent dirt, debris, and water runoff from accumulating in the
Cul -De -Sac, in the Infiltration Trenches, and on the Ewing Property. Such advisements
went unheeded by the Olsens.
25. On or about May 2010, Steve Gordon, subcontractor for Tim Hoffman of Hoffman
Custom Homes, builder for the residence upon the Olsen Property, informed the Ewings
that they had advised the Olsens to take preventative and protective measures to prevent
dirt, debris, and water runoff from accumulating in the Cul -De -Sac, in the Infilitration
Trenches, and on the Ewing Property. The Olsens did not authorize the builders to take
such preventative measures, and in fact refused to pay Hoffman Custom Homes to enact
such preventative and protective measures.
26. The Olsens' negligence caused compaction, dirt, debris, and runoff to accumulate in
Trench 1, and dirt, debris, and runoff to accumulate in Trench 2 such that the elevation of
the top of Trench 1 is now approximately 553.50 feet and the elevation of the top of
Trench 2 is now 554.00 feet.
27. Furthermore, the negligence of the Olsens has caused the embankments adjoining Trench
1 and Trench 2 to erode, providing little to no barrier to prevent rain from accumulating
in the Infiltration Trenches.
28. As a result of the negligence of the Olsens, consisting of their failure to follow the Plan,
to place protective barriers around Trench 1, and to place silt fences around the area of
their residential construction to prevent compaction, dirt, debris, and water runoff from
accumulating in the Cul -De -Sac and the Infiltration Trenches, prevented the Infiltration
Trench from accommodating water overflow from natural rainfall, resulting in flooding
to and dirt and debris runoff occurring at the Cul -De -Sac and the Ewing Property. A true
and correct copy of pictures documenting such runoff and flooding from the Olsens'
construction is attached hereto as Exhibit "F."
29. On or about August 2010, the Lys began construction on their residence at the Ly
Property.
30. During the construction of their residence, the Lys failed to follow the Plan, failed to
place protective barriers around Infiltration Trench 4, and take appropriate precautions to
prevent dirt, debris, and water runoff from accumulating in the Cul -De -Sac, in the
Infiltration Trenches, and on the Ewing Property.
31. Specifically, the Lys failed to place the entrance to their property from the Cul -de -Sac in
accordance to the Plan, and to place protective barriers around Infiltration Trench 4, and
place silt fences around the area of their residential construction to block the flow of dirt,
debris, and water runoff from accumulating in the Cul -De -Sac, in the Infiltration
Trenches, and on the Ewing Property.
32. On or about August 12, 2010, the Ewings advised the Lys that they needed to follow the
Plan, and take preventative measures to prevent dirt, debris, and water runoff from
accumulating in the Cul -De -Sac, in the Infiltration Trenches, and on the Ewing Property.
Such advisements went unheeded by the Lys.
33. On or about August 2010, the Ewings contacted Roland Construction, the builder for the
residence upon the Ly Property, and informed them that in order to protect the Ewing
Property, they needed to follow the Plan for the entrance from the Cul -de -Sac to the Ly
property, and to install silt fences to prevent runoff. Despite such fences being installed,
the amount of fencing proved inadequate for preventing dirt, debris, and water runoff
from accumulating in the Cul -de -Sac, the Infiltration Trenches, and on the Ewing
Property.
34. The Ly's negligence caused compaction, dirt, debris, and runoff to accumulate in Trench
3 and Trench 4 such that the elevation of the top of Trench 3 bordered by the Ly Property
is now approximately 553.50 feet and the elevation of the top of Trench 4 is now 556.00
feet.
35. Furthermore, the negligence of the Lys has caused the embankments adjoining Trench 3
and Trench 4 to erode, providing little to no barrier to prevent rain from accumulating in
the Infiltration Trenches.
36. As a result of the negligence of the Lys, consisting of their failure to follow the Plan, to
place protective barriers around Trench 4, and to place an adequate amount of silt fencing
around the area of their residential construction to prevent dirt, debris, and water runoff
from accumulating in the Cul -De -Sac and the Infiltration Trenches, preventing the
Infiltration Trenches from accommodating water overflow from natural rainfall, resulting
in extensive flooding and .dirt and debris runoff occurring at the Cul -De -Sac and the
Ewing Property. A true and correct copy of pictures documenting such runoff and
flooding from the Lys' construction is attached hereto as Exhibit "G."
37. The negligence of the Defendants has literally caused a river of water to flow over the
Cul -de -Sac, the Infiltration Trenches and the Ewing Property. See Exhibit F and Exhibit
G.
38. As a result of the negligence of the Defendants, consisting of their failure to follow the
Plan, to place protective barriers around the Infiltration Trenches and silt fencing around
the area of their residential construction to prevent dirt, debris, and water runoff from
accumulating in the Cul -De -Sac and the Infiltration Trenches, rainwater, dirt, and debris
has flowed and will continue to flow freely over the Cul -de -Sac, eroding the surface of
the Cul -de -Sac and washing away much of the gravel that composes the Cul -de -Sac.
39. The Defendants' failure to follow the Plan, their failure to place protective barriers
around Trenches 1 and 4, and their failure to place silt fences around the area of their
residential construction also caused the Embankments which protect the Ewing property
to erode, which directly threatens the Ewing Property with soil erosion and rainfall
overflows.
40. From the beginning of the construction of the residences on the Ly Property and the
Olsen Property, the Ewings noticed and documented the accumulation of dirt, debris, and
water runoff in the Infiltration Trenches and the Cul -De -Sac.
41. From the beginning of the construction of the residences on the Ly Property and the
Olsen Property, the Ewings also noticed and documented the erosion of the
Embankments and resulting soil erosion on the Ewing Property.
42. In compliance with the Declaration, the Ewings began to take necessary action to rectify
the situation. In a series of emails between the Ewings and the Olsens, and face -to -face
discussions with the Lys, the Ewings advised the Olsens and the Lys that they would be
consulting engineers to repair and remedy the situation and invited them to participate in
said discussions. The e -mail conversation between the Olsens and the Ewings is attached
hereto as Exhibit "H."
43. On or about August 30, 2012, at 11:26 AM, the Ewings advised the Olsens and the Lys
that they wished to discuss the repair and remedy of the conditions in the Cul -De -Sac and
the Infiltration Trenches at a meeting between the Ewings, the Olsens, and the Lys with
the assistance of Gregory Lebo, Vice President of Brehm -Lebo Engineering and a
professional engineer, ( "Lebo ") who was also to be present at the meeting. See Exhibit
« »
44. The Olsens repeatedly stated that they could not make the meeting, and the Ewings
provided ample opportunities for the Olsens to attend a meeting on alternate dates and
even to provide the Olsens with a letter to summarize Lebo's findings.
45. The Lys managed to attend a meeting with the Ewings and Lebo and agreed that Trench
4 was in need of repair, and the embankment needed to be re- established. The Lys also
agreed with Lebo's findings and his repair plan.
46. On various occasions between the spring of 2009 and September 2012, the Ewings have
taken protective measures to prevent the Ewing Property and the Cul -de -Sac from being
compromised by consistently removing clay, silt, and debris from their own driveway,
excavating and removing approximately 18 tons of clay, silt and debris from a formerly
established swale located on the Ewing property, adding waste stones to promote
drainage within the swale, and protecting the swale from further runoff by erecting silt
fences.
47. The cost of the labor and materials to the Ewings for these renovations totals $2,300.00.
To date, neither the Lys nor the Olsens have provided any funds for such materials or
labor.
48. On or about September 15, 2012, the Ewings, with the guidance of Lebo, began to repair
and remedy Trenches 2 and 3 and the Cul -de -Sac. To date, the Ewings have substantially
restored the drainage capacities of those portions of Trench 2 and Trench 3 bordering the
Ewing Property by removing all clogged material from those portions of Trench 2 and
Trench 3 that border the Ewing Property, separating such waste material into recyclable
or waste spoil, disposed of the waste material, installed Nonwoven Geotextile fabric in
Trench 2 and Trench 3, installed approximately 60 tons of 2B AASHTO #57 gravel,
installed 2 inches of 2B AASHTO #57 gravel to hold the geotextile fabric in place in
Trench 2 and Trench 3 to plan specified grade, surrounding the new trenches with
protective silt fencing, installing top soil to areas eroded by the clogged Trench 2 and
Trench 3, scraping and removing of non -plan specified material from the Cul -de -Sac
bordering the Ewing Property, establishing and grading the portion of the Cul -de -Sac that
borders the Ewing Property to plan- specified grades. As a result, the portion of Trench 2
and Trench 3 lying on the Ewing Property is now identical to the grades and design
specified in the Plan.
49. The cost of the labor and materials to the Ewings for these renovations totals $3,080.00.
To date, neither the Lys nor the Olsens have provided any funds for such materials or
labor.
50. To date, the Ewings have spent approximately $5,380.00 on repairs to the Cul -de -Sac, the
Infiltrations Trenches, the Embankments and the Swale.
51. On or about October 16, 2012, the Ewings received a letter from Saidis, Sullivan, and
Rogers, counsel for the Lys, (the "Ly Letter ") which alleged, among other things, that the
Ewings had not consulted with the Lys and the Olsens before undertaking repairs on the
Rural Residential Lane. Without providing any substantiation, the Ly Letter also alleges
that said repairs were causing further damage at the Cul -de -Sac. The Ly Letter also states
that the Ewings must assume full financial responsibility for the repairs taken to date and
assume full financial responsibility for any damage or stormwater issues attributed to the
repairs undertaken by the Ewings. This demand is in direct contravention of the
covenants contained in the Declaration. A true and correct copy of the Ly Letter is
attached hereto as Exhibit "I."
52. The Ewings have retained professional engineering counsel in the repair and remedy of
the Cul -de -Sac, and such repairs have prevented further damage to the Cul -de -Sac, much
less causing further damage to it.
53. On November 1, 2012, the Ewings received a Letter from Salzmann Hughes, P.C.,
counsel for the Olsens, (the "Olsen Letter "), which reiterates the allegations of the Ly
Letter, and additionally charges that the Ewings have sole financial responsibility for all
repairs undertaken and all damages that may result therefrom. Such allegations are in
direct contravention to the covenants contained in the Declaration and the deeds
conveying the Ly Property and the Olsen Property to the Lys and the Olsens,
respectively. A true and correct copy of the Olsen Letter is attached hereto as Exhibit
« »
54. On December 10, 2012, the Ewings responded by way of undersigned counsel via a letter
sent by certified mail (the "Response Letter ") to counsel for the Lys and the Olsens,
stating that they have complied with all covenants and requirements for the repair of the
Rural Residential Lane, and made demand for all amounts owed thereto. To date, the Lys
and the Olsens have not formally responded to the Response Letter. A true and correct .
copy of the Response Letter is attached hereto as Exhibit "K."
55. To date, the Lys and the Olsens have not and continue to refuse to pay their
proporationate share of the cost of remedies and repairs to the Infiltration Trench, the
Cul -De -Sac, and the Embankments, in direct violation of the covenants contained in the
Declaration and the deeds conveying the Ly Property and the Olsen Property to the Lys
and the Olsens, respectively.
COUNT I — BREACH OF COVENANT
56. Paragraphs 1 -55 are hereby incorporated by reference.
57. The Declaration clearly states that the Defendants bear equivalent responsibility for all
costs relating to the maintenance, repair, and improvement of the drainage facilities at the
Rural Residential Lane. See Exhibit "E."
58. By refusing to pay for their proportionate share of the repairs undertaken by the Ewings,
the Defendants are in breach of the covenant in the Declaration to do so.
59. The Ewings are therefore entitled to recover 66.66% of the costs of the repair to the Rural
Residential Lane by civil action, initiated by this Complaint. See Exhibit "E ", Section
3(d) ( "The covenant to bear the cost to improve, maintain, and repair the Rural
Residential Lane, appurtenances, and drainage facilities shall be enforceable by a civil
action ... ").
60. The Ewings have spent approximately $5,380.00 on repairs to the Infiltration Trench, the
Cul -De -Sac, and the Embankments.
61. The Declaration explicitly states that the Rural Residential Lane is owned by the Ewings,
the Lys, and the Olsens. See Exhibit "E."
62. The deeds conveying the Ewing Property, the Ly Property, and the Olsen Property also
explicitly state that the grantees (the Ewings, the Lys, and the Olsens) "recognize that the
storm water management facilities constructed ... are for the benefit of all lots which are
part of the above mentioned Plan and further agree to construct, repair, and replace such
storm water management facilities as necessary." See Exhibit B, Exhibit C, and Exhibit
D.
63. Of the three lot owners, only the Ewings have taken any affirmative action to repair and
remedy the stormwater facilities on their lot for the benefit of themselves, the Lys, and
the Olsens.
64. Of the three lot owners, only the Ewings have taken any affirmative action to repair and
remedy the storm water management facilities in the Rural Residential Lane.
65. Under Pennsylvania law, the required elements of injunctive relief are: ". . . a clear right
to relief; an urgent necessity to avoid an injury that cannot be compensated in damages;
and a finding that greater injury will result from refusing, rather than granting, the relief
requested." Big Bass Lake Cmty. Ass'n v. Warren 950 A.2d 1137, 1144 (Pa. Commw.
Ct. 2008)
66. An injunction can be an appropriate remedy where real property rights are concerned.
Id. at 1145.
67. The Ewings have a clear right to relief under the Declaration and the deed covenants in
the deeds conveying the Ewing Property, the Ly Property, and the Olsen Property.
68. The damages to be suffered by the Ewings include the demise of the Cul -De -Sac, the
Infiltration Trenches, and the Embankments, which the Ewings own in fee simple via the
Declaration. Specifically, the demise mentioned above has occurred and will continue by
the downward flow of dirt, debris, and water runoff into the Cul -De -Sac, which will
occur without mandatory action from the Lys and the Olsens to repair and remedy the
accumulation of dirt, debris, and water runoff into the Infiltration Trenches, the Cul -De-
Sac, and the Embankments.
69. Further damage will be incurred by the Ewings due to water runoff and accumulation
occurring on the Ewing Property. Such runoff and accumulation has resulted and will
continue to result in extensive soil erosion and landscaping damage to the Ewing
Property.
70. The above listed damages will continue without abatement and such continued damages
cannot be remedied in monetary terms.
71. The Lys and the Olsens have shown no indication to the Ewings that they are willing to
independently remedy the damages to the Rural Residential Lane. It is therefore believed
and averred that they will not undertake such remedies without a mandatory injunction
from this Court.
72. A greater injury will result to the Ewing Property in the form of soil erosion and
landscaping damage, which could threaten the integrity of the residence upon the Ewing
Property, the integrity of the driveway leading to the residence on the Ewing Property.
WHEREFORE, the Plaintiffs, Steven A. Ewing and Jane B. Ewing respectfully demand
judgment in the amount of $3,586.68 to be assessed against the Defendants jointly and severally,
plus any other amount proved at trial, and attorney's fees, along with any and all other relief that
this court may find appropriate. The Plaintiffs also respectfully demand that this Court issue a
mandatory injunction directing the Defendants to repair and remedy any conditions of the
Infiltration Trenches, the Cul -De -Sac, and Embankments existing within the Rural Residential
Lane or within their properties to the specifications indicated in the Plan, with expenses to be
borne by the Defendants.
COUNT II — BREACH OF CONTRACT
73. Paragraphs 1 -72 are hereby incorporated by reference.
74. The Declaration, in conjunction with the deeds conveying the Ewing Property, the Ly
Property, and the Olsen Property to the Ewings, Lys, and Olsens, respectively, created a
binding contract between the Ewings and the Defendants.
75. By refusing to respect the covenants contained in the Declaration, the Defendants have
affirmatively breached the contract between the Ewings and the Defendants.
76. As such, the Ewings are entitled to all due compensation incurred by the Ewings in the
repair and remedy of the Infiltration Trenches, the Cul -De -Sac, and the Embankments.
77. The Ewings, per the terms of the Declaration, are entitled to 66.66% of all expenses to
repair and remedy the Rural Residential Lane.
78. The Declaration explicitly states that the Rural Residential Lane is owned by the Ewings,
the Lys, and the Olsens. See Exhibit "E."
79. The deeds conveying the Ewing Property, the Ly Property, and the Olsen Property also
explicitly state that the grantees (the Ewings, the Lys, and the Olsens) "recognize that the
storm water management facilities constructed ... are for the benefit of all lots which are
part of the above mentioned Plan and further agree to construct, repair, and replace such
storm water management facilities as necessary." See Exhibit B, Exhibit C, and Exhibit
D.
80. Of the three lot owners, only the Ewings have taken any affirmative action to repair and
remedy the stormwater facilities on their lot for the benefit of themselves, the Lys, and
the Olsens.
81. Of the three lot owners, only the Ewings have taken any affirmative action to repair and
remedy the storm water management facilities in the Rural Residential Lane.
82. Under Pennsylvania law, the required elements of injunctive relief are: "... a clear right
to relief; an urgent necessity to avoid an injury that cannot be compensated in damages;
and a finding that greater injury will result from refusing, rather than granting, the relief
requested." Big Bass Lake Cmty. Ass'n v. Warren 950 A.2d 1137, 1144 (Pa. Commw.
Ct. 2008)
83. An injunction can be an appropriate remedy where real property rights are concerned.
Id. at 1145.
84. The Ewings have a clear right to relief under the Declaration and the deed covenants in
the deeds conveying the Ewing Property, the Ly Property, and the Olsen Property.
85. The damages to be suffered by the Ewings include the demise of the Cul -De -Sac, the
Infiltration Trenches, and the Embankments, which the Ewings own in fee simple via the
Declaration. Specifically, the demise mentioned above has occurred and will continue by
the downward flow of dirt, debris, and water runoff into the Cul -De -Sac, which will
occur without mandatory action from the Lys and the Olsens to repair and remedy the
accumulation of dirt, debris, and water runoff into the Infiltration Trenches, the Cul -De-
Sac, and the Embankments.
86. Further damage will be incurred by the Ewings due to water runoff and accumulation
occurring on the Ewing Property. Such runoff and accumulation has resulted in extensive
soil erosion and landscaping damage to the Ewing Property.
87. The above listed damages will continue without abatement and such continued damages
cannot be remedied in monetary terms.
88. The Lys and the Olsens have shown no indication that they are willing to independently
remedy the damages to the Rural Residential Lane. It is therefore believed and averred
that they will not undertake such remedies without a mandatory injunction from this
Court.
89. A greater injury will result to the Ewing Property in the form of soil erosion and
landscaping damage, which could threaten the integrity of the residence upon the Ewing
Property, if this Court does not grant the injunctive relief requested herein.
WHEREFORE, the Plaintiffs, Steven A. Ewing and Jane B. Ewing respectfully demand
judgment in the amount of $3,586.68, to be assessed against the Defendants jointly and severally,
plus any other amount proved at trial, and attorney's fees, along with any and all other relief that
this court may find appropriate. The Plaintiffs also respectfully demand that this Court issue a
mandatory injunction directing the Defendants to repair and remedy any conditions of the
Infiltration Trenches, the Cul -De -Sac, and Embankments existing within the Rural Residential
Lane or within their properties to the specifications indicated in the Plan, with expenses to be
borne by the Defendants.
COUNT III — UNJUST ENRICHMENT
90. Paragraphs 1 -89 are hereby incorporated by reference.
91. Udder Pennsylvania law, the elements of unjust enrichment are " "benefits conferred on
defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and
retention of such benefits under such circumstances that it would be inequitable for
defendant to retain the benefit without payment of value." Schenck v. K.E. David, Ltd.
446 Pa. Super. 94, 97, 666 A.2d 327, 328 (1995).
92. The Defendants have received benefit from the Ewings' repair and remedy of the
. dangerous and potentially destructive conditions of the Rural Residential Lane.
93. The Defendants are aware and appreciate the benefit conferred upon them by knowledge
of the covenants in the Declaration and their deeds that require them to pay for any
repairs performed on their behalf upon the Rural Residential Lane and. the visible
reparations of the Cul -De -Sac, the hlfiltration Trench., and the Embankments, which are
being restored to proper condition as per the specifications in the Plan.
94. The Defendants have accepted and retained such benefits without compensation to the
Ewings, and such retention without payment is inequitable.
WHEREFORE, the Plaintiffs, Steven A. Ewing and Jane B. Ewing respectfully demand
judgment in the amount of $3,586.68, to be assessed against the Defendants jointly and severally,
plus any other amount proved at trial, and attorney's fees, along with any and all other relief that
this court may find appropriate.
Respectfully submitted,
CAPOZZI ADLER, P.C.
Date: 0 (o —
Pa 1 R. Van Fleet, Esq.
Supreme Court ID: 312135
P.O. Box 5866
Harrisburg, PA 17110
Phone: (717) 233 -4101
paulv�,capozziadler.com
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STEVEN A. EWING AND JANE B. EWING, NO.
Plaintiffs
VS. Complaint — Civil Action
TAM L. LY, CASSANDRA L. LY, ERIK
S. OLSEN, AND CYNTHIA M. OLSEN
Defendants
VERIFICATION
1, Steven A. Ewing, do hereby verify under penalties of perjury and upon personal
knowledge that the contents of the foregoing Complaint are true and correct to the best of my
knowledge, information, and belief.
Date:
Steven A. Ewing
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STEVEN A. EWING AND JANE B. EWING, NO.
Plaintiffs
VS. Complaint — Civil Action
TAM L. LY, CASSANDRA L. LY, ERIK
S. OLSEN, AND CYNTHIA M. OLSEN
Defendants
VERIFICATION
I, Jane B. Ewing, do hereby verify under penalties of perjury and upon personal
knowledge that the contents of the foregoing Complaint are true and correct to the best of my
knowledge, information, and belief.
Date: /Off
Jan . Ewing
EXHIBIT "A"
l ..
�`RTP.
FINAL SUBDIVISION PLAN
'F !
FOR r t llgr zs fin 10 ce
HAROLD S. SWARNER
AND
DEBRA S. SWARNER
CUMBERLAND COUNTY, PENNSYLVANIA
FINAL PLAN APPROVAL 8TA7B.Blf STAWA6ET OF OWNEREW, ACKNOWLEDGMENT OF PLAN
GOMMOMM TI, of PEIRISAVAMA i
AT A MEETING ON 0191. f . 20_efr� ME BOARD OF SUPEWMAS YLWSN AWIE [� COImTr OF —D S {
APPRMD MIS PROJECT. AND ALL CONDITIONS NDITIONS M I M ST DER or APP EARED . tO�j{t_, HNRE uF
OF SOUM MIDDLETON TOWNI €
RE UHOERSXOED OFFICER. PEASBxKLr xAROID 5. SWARTER An0 � � .
OF 0 ROJAL INVE BEEN MET. MS APPROVAL INCLUDES THE COMPLETE SET OF OERRA S SNAXER. p10111ER AMID 55TER, INMO. BONG aRY SHORN
PLANS AND INFORMATION WHIGH ARE FILED WITH THE TOWNSHIP. BASED UPON ITS AOCORDINO To LAW, DEPOSES AND SAY RAT NV ARE ME OWNERS OF THE
_ E
CONFORMITY WITH TIME STANDARDS OF ME BOOTH YIDOLEiON iDWNSHIP SDN T, SHOWA ON DNS PLAN' MAT TIE PLAN HEREON WAS MADE AT MEW
AND lAXD DEVELOPMENT OPORUNCE. aMLT10N, llAi MEY KNXODEDGC TIE SAME TO BE IxOR ALT AFD PVN. E
�Ap nAT SCIRRRE — to BE RECOROD).
t SURERW OFA 5 � IN," x Jt�`R"� f �•"Ay -mow .
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s.E.o. DATE LOCATION MAP E: -LF 11xh - ZODO h3el Eitbruatq
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me,laNa to lM alc4h! dma+ara by .d. 1 rml. A clod an. of mad Md M IN.I.h. a tat ale for Wl puracia. Al Me •a bier ". al !eh of !0-50-90 (50 pamd. of H. 50 panda of P205, ad 50 poaa al I- stays a b• ..maim. be.. aY Sch= stage h .1 wlea. "Aces"
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naY m c.eal ohm a a rte• of J tan pat era.. Rarer _ _
lal. fdek free. Mr nett Imrk la.. Mm M pea. a a I•M yea. aroma u•.m.b.am p.inaw of m. d.laaed aro as 1. xpnl ddaa 'x`
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sal Imm -it De Nfprsl. InmdblaY aRw call rdnlap ad al Ire ddY - mda9. rmla. II lark a. a -
b,mar N.IIeahW e,hr. the atl a11M am «lea afabh IIh end IM lacer H6 h n «awry. M• labrl[ v Me mh• •rtm Meld 6a Prior to ,..N0. mpY oylodlurd Wa• IYn•Na• at o rah of J tea aw we,. ADpY 2. Mfla ]D flt. Ima a Shoo, a In. pint al amid RaadanUd La•.
Wpm. perm!!,. A". la m,auKKlurw's reammadafbna ear I- Valkrq le fm. da• to rwln -9 ImIth w It a mt. 0 10d-2 200 (100 porn. a IL 200 pore. It P205. and 200 -
S.Mmt = Maltl be namNed, ed aft, w - fa. sauna( Mated ba d removed rho Mr kM al dematiim reachn othoo.NmtWY Dwnda of 020) p. mre. wore hrtibr bill Re •a a. demly a -She. I made rod ..at... name.
on• -nal M. MINI of M• barer. My saF.al bpalls r•maNFp F q«• alive IM all lad he no .Dope r•aub•a Male be Waa.d -
te ..f- NM al.. .g We". ..dad and wgelara M. .e. beer Mwld 61 stNdWad heopmvAY by mbq aeaalen mat ae mW0 Per na -mead Nape• as baF, a.. NM MMIw rye of o Me a 165 peunde yy e k 5111, Topeal ad I-Pie a ale.
pnm corn w1M at o .1. el 15 panda p. airs ad tai have. al a .1. of 25 pound -
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11 a aro 1, .owner I•n tna 70 even!, r.waple In• Joke of pal mal.ol end Ida• wmllliea a fma as Ip t h e uaa. fm mae,a t .e as -..•d NM Male, Ir al a role a 165 panda Dn aver Mae
R. -M Me s ad anal M• seeabac h Made. fan Mae r.canmmdalbns and de aet tea IM. all IaWitr If M• rrRdl. of a Idl taws at a rat• 0160 pound. p, we ad Me rewa. al a rat• a is pads Dv 7 meta aemD«fea dN. aaDmr.
ea hat err. Mt awaebN. 11 M. torn .Nmh re•ee.q mukb or .aeon mltYp at an .n.cOw famdemey [oas. ems.
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esOf S 01 ,rat, el 20 de-d. per le- o rte. of 75 Photo. Dr we, as pwmnid re, grow 9. le- ill. dam en. We delurb.e area a- b.om• alohaix. NM
ill NIS h rra+al• kr ape Ida and mmrlmanc• F qr !amine Nm .alter. RmF ahn.e: vegelalbn.
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aFl.nmu h da .bwMy impamml cap" l at mboting i hhoMIa mwwre. if cociamt a..anaalim le net [atiod the elf«Ilw th.balim Emil
life porn o1 Nn4dlm mwvrr.. b al mat motel 5 to 10 roe. MM pap, deelpr. NaMean, end mdllaaee. Me bailb McWtl
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n«anap B «era IM .Irvclum are aYm ywma a. all of .Ighl. IM laaacY h to lane maNlaac•. IwdN9 1e --.I praams RgHV Nm.tbn, .ie New• Mat Debi-. an i bdSd Wlere Mry roam ao a. -N!2' a0. yam,. U I> PWe Ta•a ded apply paae- NO ml.tel. to my onecl. era.
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To awe emga[yinq Ms ag,regate naval. whilwW M ie oat, Nflaaven Volatile, aimed be •aelud. and .avtal fall taf& 1. Ilan amVhtem of a Ne. d +Mrbmee actirilY a de, at a p+a. a a Welledµ la. Rarnoea Sit. fill" pnm d abb. a men hue. M[me sto wbad NM N"Mah -
Mete to daawra.. Ma + �aatar she stabilize Nun.dletely M• Imbed! area la pro! «l aen .crml. cbde -iamdr tee •MS .
M O.rem for , a1, q NAMNhm .,M Mold W NAuh. N M• as 0. Ma Ma Mwa _We, 01 0 A .,a. Wheeled PdYdnµ ro 15, lam Eroaa ad S.enmldW la SN,I• lady Lot data a Welt 9 for breleida0l
Nl.lda (M) Pta .IM a ..II. Narl 611F0. 71. -doe, Madd be pace n•v Me curt, of Me befit,, f. the hat ten al 2. At Iaal 7 der bda, -" my .stn deb tam.e IaWth,. Me apvaer deli NNI• lot gr.N9 deNq Name C Mhoctan. - --
apeonen. Nal.M. Mwa a Nw «ter .-.y end arts, rode, map •term. all cenlraclon NwIM N Mes. lialha, M. la0o.n,, a aaraprhl• munkbd -
IIkM., Me ,ether a0 the, -ahrr cm4d Dim m,w.• as o rarraalalM a Mr „6. Oom>uw1 eeaba a d Leta Moo M N•ta. o, IM IYne o1 CafWClbn of •mn
dOmwMne Mwla be male to de- nm Img it lest ralaNa wlr 10 Ffll.h .1. 0. roe olty a- slam trot. ill Cumbrlao LamtY La.,rvaaon Dhbkl l0 a m -.ih p•- canstrmdm mnIF9. N. a1 me, ye, . mprmriale 1,l. t )
dNambaien em be move F IMO Mar M. mm1 Nla M. h I1 Me Mat. IM h .ad •�a��1 1.. over A pm. of apt alitt o hml J dari Mfar. etmeb9 ay mat .ht.banc. mlldlin. a wnh «tee Nvdra N
lev "000t l M. I Me -01e r.adny m eat ? ,la mMhoo 9 e, my Wripeat al•rlaaan I. l N�ld a la ba MwW I^ 6W -2.2 -1726 for buhd utg h., I«eda�i Srlm Inearp.at•a al
rN'Wia. J. ImmedbtYY team di--" alwn.n chwmdmca paN, Me polmhd fe,
In lintrolian eyad I. Me lop .awrd bda al agyagala and the ale data deaq tat too 11 the aY Mdi lewhe M replaced amudiY --led Wosbn a. /. dedmml p--. the aerate ah- -P--, mproprble ,
a had .M M• AN. Merit• rvaaa ind F 14oBaa as how reduced Pop , "W" of M• -1.4. 1-.- is -ca•.µ Mat mm I -, -I- to atee.t. NWMw W .,. -led aaabn oad/w •• .1
Mr -."'a as doM Maed he aped ately podoged as aaiwr. to Me KKal 1 -fill, it Me -at., ..m'Y abar- Mr NTIMI . _
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Eamala as Yen Mw . 1dhl al loll -- o -Wh, a laeir, .t cart- rryeae, 1 1a-0ith, ere n «e Y Mm, ill m= moat r,em awoW of Mr revhMa dam M. Cumb.ad Cwnly
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..bmaY impalml omeal al N-W F ilraUa msawra. Il ,adlnml «aamdaim he not cabled. the ec.- ad 26e.1 al No. 221.1 ate say., as 25).1 el •ea Ma Canhate, Md not bmI• Harp,
IIh ma of rnnWlbn meewra M d mat deal 5 l0 10 yells aN pal. daelgn, l.apvcfen. ad mai,immce. Me IpcYiMf Mould w d,cba9e my wadng material .Mari. It IM ale.
tan much la9[r. 6. An Uesim ad S.eernt Cmba ale Md. 6e, ,spar.. da.deped. and mprora by Me
Sedlnaat acwmdallon Ma ewnludY rmdtt w iaflhollan 4ad NMI «live; MWefae. regal. Nm.lbna of Ins M-l", ere Cu_-d Corm, C_-,- 01a 1 and in, --led W dad aW bore. ads
5aµ Browse the Shod T veer baba Wwna ere w, a aynl. Me tmaacy h to !alga .1i hh m a. hood" to .esaaumt Meg-.. of .. .at-.
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7. M .a Y 1,s wn... to mar a- het a -dole mm It na a --at
ie avva cwrmalN9 Me oggroata hMmM, aehiNw hall aver Mnhatm Vmda ebodd be INA.. ere .metal bat 4allk o1 lOfi pvennM wgelaliw watt a oMW --cal na- wmlatM tact NM a dmWly '
Mould a dl-or a lai llich h e l N resist mcawda do- aloaan and Womerlaer MarmlebBm wllileat to
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EXHIBIT "B"
c,
F: TILESOATAFILMReal EstateU0539.2,deed 1ot2,ewing
Parcel No. G r o&�
DEED
MADE THE day of December, 2006.
BETWEEN HAROLD S. SWARNER and DEBRA S. SWARNER, brother and sister, of South
Middleton Township, Cumberland County, Pennsylvania, hereinafter referred to as:
Grantors,
and STEVEN A. EWING and JANE B. EWING, husband and wife, of 220 Adams Road, Carlisle,
Cumberland County, Pennsylvania, hereinafter referred to as:
Grantees,
In consideration of ONE HUNDRED FIFTY THOUSAND AND 00 /100 ($150,000.00)
DOLLARS, the receipt whereof is hereby acknowledged, the Grantors do hereby grant and convey to the
Grantees, as tenants by the entireties, their heirs and assigns:
ALL THAT CERTAIN tract of land situate in South Middleton Township, Cumberland
County, Pennsylvania, bounded and described according to the Final Subdivision Plan for
Harold S. Swarner and Debra S. Swarner, prepared by Brehm -Lebo Engineering, Inc.,
dated August 25, 2005, and revised through February 1, 2006, and recorded in
Cumberland County, Pennsylvania Plan Book 92, Page 81, as follows, to wit:
BEGINNING at an iron pin set at the southeastern corner of Lot No. 1 on the above -
referenced Plan; thence along said Lot No. 1, North 38 degrees 46 minutes 13 seconds
East 63 8.91 feet to a proposed concrete monument; thence along land now or formerly
of John H. McAdoo and Cathy S. McAdoo, South 42 degrees 59 minutes 45 seconds
East 345.85 feet to an iron pin set; thence along land now or formerly of Paul E. Weibley
and Wayne Weibley, South 27 degrees 01 minute 56 seconds West 711.72 feet to an iron
pin set; thence along LotNo. 3 on the above - reference Plan, North 38 degrees 47 minutes
19 seconds West 498.79 feet to an iron pin set, the point and place of BEGINNING.
BEING Lot No. 2 on the Final Subdivision Plan for Harold S. Swarner and Debra S.
Swarner and containing 6.228 acres.
UNDER AND SUBJECT to the following building and use restrictions:
1. Proper sight lines shall be maintained at the intersection of the rural residential lane
serving the within lot and Rockledge Drive (T -478). Measured along the centerline, there
shall be a clear sight triangle of seventy -five (75) feet from the point of intersection, and no
building or obstruction higher than thirty inches (30 ") above the grade of the center line of
the streets shall be permitted in this area.
2. All roof leaders from any dwellings constructed on the within lot will. be directly
connected to the on -lot downspout basins.
3. The storm water management facilities constructed or to be constructed on the
within lot shall be owned, operated, and maintained by the Grantees herein, their heirs and
assigns. In addition, such Grantees, for themselves, their heirs and assigns, agree as
follows:
a) There is hereby granted, in perpetuity, to South Middleton Township
(Township) the right to enter upon the within lot to inspect on site storm water facilities on
a regular basis and after any maj or storm/flood event. In the event that the Grantees, their
heirs and assigns, fail to maintain and/or repair the storm water management facilities in a
condition that they may function as intended by design, within thirty (30) days of
notification by the Township, the Township has the right to enter said property and conduct
sold maintenance or repair at the sole cost of Grantees, their heirs and assigns.
b) The Grantees, their heirs and assigns, agree that no action will be taken to
block or impede the passage of water through sold storm water management facilities and
will place no structure, building or fence nor plant any trees or shrubs which would impede
the use of said facilities for their intended purposes, without prior approval from the
Township.
C) The Grantees, their heirs and assigns, recognize that the storm water
management facilities constructed, or to be constructed, on the within lot are for the benefit
of all lots which are part of the above mentioned Plan and further agree to construct, repair
and replace such storm water management facilities as necessary.
d) The Grantees, their heirs and assigns, agree to replace this agreement with
a similar agreement at such time, and from time to time, plans for the changes in the existing
storm water management system are approved by the Township.
4. As the within lot is served or to be served by a certain Rural Residential Lane, the
within lot is subject to a certain Declaration of Easement and Covenants For Rural
Residential Lane, recorded in Cumberland County, Pennsylvania, Miscellaneous Book
0726 at page 2641. In addition to the matters set forth in such Declaration, and not in
limitation thereof, with respect to such Rural Residential Lane:
a) Such rural residential lane shall be improved to a mud free or otherwise
permanently passable condition using a minimum of eight (8 ") of crushed stone.
b) No improvements other than the cartway and roadside gutters /gravel
infiltration trenches shall be constructed within the right -of -way.
C) Such rural residential lane shall be designed and constructed so as to cause
stormwater drainage to flow toward roadside gutters /gravel infiltration trenches.
d) The all - weather turnaround has been designed to accommodate vehicular
traffic and fire, ambulance and other emergency vehicles and shall be constructed as shown
on the above mentioned Plan.
e) Such rural residential lane shall be constructed with an apron of sufficient
area to allow for the safe delivery of mail, and for the safety of school children being
picked up and dropped off by school buses.
f) The within lot shall be prohibited from further subdivision.
g) Parking. on or along rural residential lanes shall be prohibited. The
Grantees, their heirs and assigns, shall provide adequate parking to accommodate a
minimum of four (4) vehicles on the within lot.
5. The Grantees, their heirs and assigns, shall install and maintain an outside electric
yard light. This light shall be a minimum of 75 watts, at least six (6) feet in height, and
equipped with photoelectric switching device to assure continues operation between dusk
and dawn. Wiring for such light shall be connected directly to the circuit breaker in the
main electrical panel box in the dwelling, without an intervening switch between the circuit
breaker and the photoelectric switching device. Such light shall be installed prior to
issuance of a certificate of occupancy.
ALSO UNDER AND SUBJECT to the following lot restrictions:
1. This tract of land shall be used for residential purposes only. No business (except
home occupations), commercial or industrial uses shall be permitted on this tract
of land.
2. Only one single family residence, one garage, and one accessory outbuilding may
be erected on this tract of land.
1. All residences shall be stick built and no trailer, mobile home or similar factory built
structure may be located on this tract of land temporarily or permanently, for any
use whatsoever.
4. No structure of a temporary character shall be erected on this tract of land and
used as a residence, whether temporarily or permanently. The foregoing
prohibition shall include, but not be limited to, a basement, tent, recreational
vehicle, camper, shack, garage or barn.
5. No structure of any kind, including, but not liinited to, swimming pools, shall be
erected, placed, modified or altered until the building plans, specifications and plot
showing the location of such building have been approved in writing by Debra
Swarner and Harold Swarner, their heirs, successors or assigns as to conformity
and harmony of external design with existing or proposed structures in this
subdivision and as to location of the building with respect to topography and
finished ground elevation and as to quality of construction and materials. In the
event such building plans, specifications and plot plan have not been approved
within thirty days after the same have been submitted, or, in any event, if no suit to
enjoin the erection any building, or the making of any alterations has been
commenced prior to the completion thereof such approval will not be required and
this covenant will be deemed to have been fully complied with. All such
construction shall be completed within a reasonable time from the commencement
thereof.
6. No breeding or training kennels for dogs shall be kept or maintained upon this tract
of land. Household pets are permitted, including a dog; provided, however, that
all such household pets shall be housed in the dwelling. Dogs shall not be permitted
to roam out of doors without a leash.
7. Any type of livestock kept on the premises shall be housed in a suitable outbuilding
and properly fenced area.
8. Excepting construction or other machinery used for construction of the dwelling
and permitted outbuildings and approved alterations thereto, all machinery and
equipment, including recreational or transportation vehicles, tractors, brush hogs,
backhoes, bulldozers, bobcats and the like, whether licensed or not, shall be
stored inside a building.
9. Nothing shall be done on this tract of land which may be or become and
annoyance or nuisance to the neighborhood.
10. The within described tract of land shall not be further subdivided.
11. If any conflict exists as between the above restrictions and those of any
governmental authority, the more restrictive shall apply.
12. These covenants and restrictions shall run with the land and shall be binding on all
parties and all persons claiming under them.
ritL 0 , ,. :: std,
13. The owner of any lot within the subdivision of which this lot is part shall have the
right to enforce compliance with these restrictions.
BEING the same premises which Harold S. Swarner and Debra S. Swarner, brother and
sister, by their Deed dated May 31, 2006, and recorded in Cumberland County,
Pennsylvania Deed book 274, Page 4554, granted and conveyed unto Harold S. Swarner
and Debra S. Swarner, Grantors herein.
AND the said Grantors hereby covenant and agree that they will warrant specially the property
hereby conveyed.
IN WITNESS WHEREOF, said Grantors have hereunto set their hands and seals the day and year
first above written.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF
(SEAL)
Harold S. Swarner
n
r4 �}
(SEAL)
Debra S. Swarner
COMMONWEALTH OF PENNSYLVANIA )
): ss.
COUNTY OF CUMBERLAND )
On this, the <<� day of December, 2006, before me, the undersigned officer, personally
appeared HAROLD S. SWARNER and DEBRA S. SWARNER, known to me or satisfactorily proven
to be the persons whose names are subscribed to the within instrument, and acknowledged that they
executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(SEAL)
Notary Public ,
KIC)UMIAL SEAL
i •era ph r. r.adksle ,;umb, r4 ��1 :ri.r? , a t
ht. 20If
rn��c
m
I hereby certify that the precise residence and complete post office address of the within Grantees
C" - 0 ; ;
'
is
Attorney for Grantees
I
D .
jlqTT
r D — RTT S { ATE
MARTSON DEARDORFF W ILLIAM S be OTTO -° _ r . .-
9DW R.K.R. S Ic: r. f_ .u• V.
S A
lr1 1 f�.. �i�:i RD
INFORMATION • ADVICE ADVOCACY
ATTORNEYS & COUNSELORS AT LAW
TEN EAST NIGH STREET
CARLISLE, PENNSYLVANIA 17013
,e
TELEPHONE (717) 243 -3341
FACSIMILE (717) 243 -1850
kw
I' i i.. tee ^•
.
EXHIBIT "C"
FAFILESOATAFIIEA&W Forte \10539,2.doed.1ot1.o1wn
IOfi? A 3 Ail 8 *arcel No.
DEED
MADE THE 29 day of December, 2006.
BETWEEN HAROLD S. SWARNER and DEBRA S. SWARNER, brother and sister, of South
Middleton Township, Cumberland County, Pennsylvania, hereinafter referred to as:
Grantors,
and ERIK S. OLSEN and CYNTHIA M. OLSEN, husband and wife, of 115 Hilltop Drive, Mount
Holly Springs, Cumberland County, Pennsylvania, hereinafter referred to as:
Grantees,
Inconsideration of ONE HUNDRED FORTY -FIVE THOUSAND AND 00 /100 ($145,000.00)
DOLLARS, the receipt whereof is hereby acknowledged, the Grantors do hereby grant and convey to the
Grantees, their heirs and assigns:
ALL THAT CERTAIN tract of land situate in South Middleton Township, Cumberland
County, Pennsylvania, bounded and described according to the Final Subdivision Plan for
Harold S. Swarner and Debra S. Swamer, prepared by Brehm -Lebo Engineering, Inc.,
dated August 25, 2005, and revised through February 1, 2006, and recorded in
Cumberland County, Pennsylvania Plan Book 92, Page 81, as follows, to wit:
BEGINNING at an iron pin set in the centerline of Rockledge Drive (T -478) at the
northwestern comer of Lot No. 3 on the above - referenced Plan; thence along the
centerline of said Rockledge Drive (T -478), North 31 degrees 55 minutes 54 seconds
East 564.42 feet to an existing railroad spike; thence along land now or formerly of John
H. McAdoo and Cathy S. McAdoo the following two courses and distances: (1) South
57 degrees 31 minutes 47 seconds East 416.74 feet to a point; and (2) South 42 degrees
59 minutes 45 seconds East 91.11 feet to a proposed concrete monument; thence along
Lot No. 2 on the above - referenced Plan, South 38 degrees 46 minutes 13 seconds West
638.91 feet to an iron pin set; thence along said LotNo. 3 (and through rural residential
lane) the following three courses and distances: (1) North 42 degrees 03 minutes 10
seconds West 325.47 feet to a point; (2) on a line curving to the left having a radius of
200.00 feet and an arc length of 55.91 feet to a point; and (3) North 58 degrees 04
minutes 06 seconds West 60.60 feet to an iron pin set, the point and place of
BEGINNING.
.. 278 03
_.:
BEING Lot No. 1 on the Final Subdivision Plan for Harold S. Swarner and Debra S.
Swarner and containing 6.487 acres.
UNDER AND SUBJECT to the following building and use restrictions:
I . Proper sight lines shall be maintained at the intersection ofthe rural residential lane
serving the within lot and Rockledge Drive (T -478). Measured along the centerline, there
shall be a clear sight triangle of seventy-five (75) feet from the point ofintersection, and no
building or obstruction higher than thirty inches (30 ") above the grade ofthe center line of
the streets shall be permitted in this area.
2. All roof leaders from any dwellings constructed on the within lot will be directly
connected to the on -lot downspout basins.
3. The storm water management facilities constructed or to be constructed on the
within lot shall be owned, operated, and maintained by the Grantees herein, their heirs and
assigns. In addition, such Grantees, for themselves, their heirs and assigns, agree as
follows:
a) There is hereby granted, in perpetuity, to South Middleton Township
(Township) the right to enter upon the within lot to inspect on site storm water facilities on
a regular basis and after any major storm/flood event. In the event that the Grantees, their
heirs and assigns, fail to maintain and/or repair the storm water management facilities in a
condition that they may function as intended by design, within thirty (30) days of
notification by the Township, the Township has the right to enter said property and conduct
sold maintenance or repair at the sole cost of Grantees, their heirs and assigns.
b) The Grantees, their heirs and assigns, agree that no action will be taken to
block or impede the passage of water through sold storm water management facilities and
will place no structure, building or fence nor plant any trees or shrubs which would impede
the use of said facilities for their intended purposes, without prior approval from the
Township.
C) The Grantees, their heirs and assigns, recognize that the storm water
management facilities constructed, or to be constructed, on the within lot are forthe benefit
of all lots which are part ofthe above mentioned Plan and further agree to construct, repair
and replace such storm water management facilities as necessary.
d) The Grantees, their heirs and assigns, agree to replace this agreement with
a similar agreement at such time, and from time to time, plans for the changes in the existing
storm water management system are approved by the Township.
�aAK w� PAcEiO54
4. As the within lot is served or to be served by a certain Rural Residential Lane, the
within lot is subject to a certain Declaration of Easement and Covenants For Rural
Residential Lane, recorded in Cumberland County, Pennsylvania, Miscellaneous Book
0726, at page 2641. In addition to the matters set forth in such Declaration, and not in
limitation thereof, with respect to such Rural Residential Lane:
a) Such rural residential lane shall be improved to a mud free or otherwise
permanently passable condition using a minimum of eight (8 ") of crushed stone.
b) No improvements other than the cartway and roadside gutters/gravel
infiltration trenches shall be constructed within the right -of -way.
C) Such rural residential lane shall be designed and constructed so as to cause
stormwater drainage to flow toward roadside gutters/gravel infiltration trenches.
d) The all - weather turnaround has been designed to accommodate vehicular
traffic and fire, ambulance and other emergency vehicles and shall be constructed as shown
on the above mentioned Plan.
e) Such rural residential lane shall be constructed with an apron of sufficient
area to allow for the safe delivery of mail, and for the safety of school children being
picked up and dropped off by school buses.
f) The within lot shall be prohibited from further subdivision.
g) Parking on or along rural residential lanes shall be prohibited. The
Grantees, their heirs and assigns, shall provide adequate parking to accommodate a
minimum of four (4) vehicles on the within lot.
5. The Grantees, their heirs and assigns, shall install and maintain an outside electric
yard light. This light shall be a minimum of 75 watts, at least six (6) feet in height, and
equipped with photoelectric switching device to assure continues operation between dusk
and dawn. Wiring for such light shall be connected directly to the circuit breaker in the
main electrical panel box in the dwelling, without an intervening switch between the circuit
breaker and the photoelectric switching device. Such light shall be installed prior to
issuance of a certificate of occupancy.
ALSO UNDER AND SUBJECT to the following lot restrictions:
1. This tract of land shall be used for residential purposes only. No business (except
home occupations), commercial or industrial uses shall be permitted on this tract
of land.
BOOK 2""r$ %E13a
2. Only one single family residence, one garage, and one accessory outbuilding may
be erected on this tract of land.
3. All residences shall be stick built and no trailer, mobile home or similar factory built
structure may be located on this tract of land temporarily or permanently, for any
use whatsoever.
4. No structure of a temporary character shall be erected on this tract of land and
used as a residence, whether temporarily or permanently. The foregoing
prohibition shall include, but not be limited to, a basement, tent, recreational
vehicle, camper, shack, garage or barn.
S. No structure of any kind, including, but not limited to, swimming pools, shall be
erected, placed, modified or altered until the building plans, specifications and plot
showing the location of such building have been approved in writing by Debra
Swarner and Harold Swarner, their heirs, successors or assigns as to conformity
and harmony of external design with existing or proposed structures in this
subdivision and as to location of the building with respect to topography and
finished ground elevation, and as to quality of construction and materials. In the
event such building plans, specifications and plot plan have not been approved
within thirty days after the same have been submitted, or, in any event, if no suit to
enjoin the erection any building, or the making of any alterations has been
commenced prior to the completion thereofsuch approval will not be required and
this covenant will be deemed to have been fully complied with. All such
construction shall be completed within a reasonable time from the commencement
thereof.
6. No breeding or training kennels for dogs shall be kept or maintained upon this tract
of land. Household pets are permitted, including a dog; provided, however, that
all such household pets shall be housed in the dwelling. Dogs shall not be permitted
to roam out of doors without a leash.
7. Any type of livestock kept on the premises shall be housed in a suitable outbuilding
and properly fenced area.
8. Excepting construction or other machinery used for construction of the dwelling
and permitted outbuildings and approved alterations thereto, all machinery and
equipment, including recreational or transportation vehicles, tractors, brush hogs,
backhoes, bulldozers, bobcats and the like, whether licensed or not, shall be
stored inside a building.
sooK 278 P,1cU056
9. Nothing shall be done on this tract of land which may be or become and
annoyance or nuisance to the neighborhood.
10. The within described tract of land shall not be further subdivided.
11. If any conflict exists as between the above restrictions and those of any
governmental authority, the more restrictive shall apply.
12. - These covenants and restrictions shall run with the land and shall be binding on all
parties and all persons claiming under them.
13. The owner of any lot within the subdivision of which this lot is part shall have the
right to enforce compliance with these restrictions.
BEING the same premises which Harold S. Swarner and Debra S. Swarner, brother and
sister, by their Deed dated May 31, 2006, and recorded in Cumberland County,
Pennsylvania Deed Book 274, Page 4549, granted and conveyed unto Harold S. Swarner
and Debra S. Swarner, Grantors herein.
AND the said Grantors hereby covenant and agree that they will warrant specially the property
hereby conveyed.
IN WITNESS WHEREOF, said Grantors have hereunto set their hands and seals the day and year
first above written.
SIGNED, SEALED AND DELIVERED
IN THE PRESEN OF
(SEAL)
Harold S. Swarner
(SEAL)
Debra S. Swarner
BOOK 278 PwD57
COMMONWEALTH OF PENNSYLVANIA )
): ss.
COUNTY OF CUMBERLAND )
On this, the P day of ' 2006, before me, the undersigned officer, personally
appeared HAROLD S . S WARNER and DEBRA S. S WARNER, known to me or satisfactorily proven
to be the persons whose names are subscribed to the within instrument, and acknowledged that they
executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand an offici seal.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Jaoqueline L. Drawbaugh, Notary Public VV
Carlisle eoro, Cunberland County Public
My Carry "on E)ires Aug. 14.2007
MerrrDsr. Pomovariie Assacta W Of Notaries
I hereby certify that the precise residence and complete post office s of the within Grantees
is 1 s N, ?I4V 0n1
. fM►y Se PA
1.7 0 6 r ttorney for tees
�Lum bnty Recorder of Deeds
41 I trument Filing
Receit=t% 644905
MnTSON DEARDORFF W IUJAM S & OTTO Itistri 2007-00081 1/03/2007 08:38:3(
Remarks: PA REAL EST
OLSEN
w:: DEED 15.59
INEO11ti�tmoN i, Aima-ADYOC.ACY DEED - RTT .50
DEED - RTT STATE 1450.99
SOUTH MIDDLETON 725.00
ATTORNEYS & COUNSELORS AT LAW SOUTH MIDDLETON 725.09
TEN EAST HIGH rec o rded DEED " A/H 11.50
' t0 � 1'COD J.G.S. / A.T.J. 10.00
CARLISLE, PENN 7 c PA CO It RRMNENT FHD 2.00
jIl • REC. IltPRVMT FUND 3.04
TELEPHONE (71 ' e 2 41 Checkil 7710 $767.00
F ACSIMILE 71 e CheckA 7711 D.59
Checks 7712 $11454.00
Checkk REF 2.90 $72-5.09
of Deeds Total Received....... $ 2142. 5 4
Recorder
eou 278 PAGE 58
EXHIBIT "D"
OOOD18
F: \FILEWfients \12298 McKain \12298.2\12298.2.DEED.wpd
Parcel No. 40 -10- 0632 -040
DEED
MADE THE 29` day of July, 2010.
BETWEEN CHARLES J. McKAIN AND JULIE F. McKAIN, husband and wife, of
Cumberland County, Pennsylvania, hereinafter referred to as:
Grantors,
AND TAM L. LY AND CASSANDRA L. LY, husband and wife, of Cumberland County,
Pennsylvania, holding title as tenants by the entirety, hereinafter referred to as:
Grantees,
In consideration of ONE HUNDRED FIFTY THOUSAND DOLLARS AND 00 /100
($150,000.00), the receipt whereof is hereby acknowledged, the Grantors do hereby grant and convey
to the Grantees, their heirs and assigns:
ALL THAT CERTAIN tract of land situate in South Middleton Township,
Cumberland County, Pennsylvania, bounded and described according to the Final
Subdivision Plan for Harold S. Swarner and Debra S. Swarner, prepared by Brehm -
Lebo Engineering, Inc., dated August 25, 2005, and revised through February 1,
2006, and recorded in Cumberland County, Pennsylvania Plan Book 92, Page 81, as
follows, to wit:
BEGINNING at an iron pin set in the centerline of Rockledge Drive (T -478) at the
northwestern corner of Lot No. 4 on the above - referenced Plan; thence along the
centerline of said Rockledge Drive (T478) on a line curving to the right having a
radius of 580.00 feet and arc length of 112.60 feet to a point; thence along same,
North 31 degrees 55 minutes 54 seconds East 179.45 feet to an iron pin set; thence
along Lot No. 1 on the above - referenced Plan (and through rural residential lane) the
following three courses and distances: (1) South 58 degrees 04 minutes 06 seconds
East 60.60 feet to a point; (2) on a line curving to the right having a radius of 200.00
feet and an arc length of 55.91 feet to a point; and (3) South 42 degrees 03 minutes
10 seconds East 325.47 feet to an iron pin set; thence along Lot No. 2 on the above -
referenced Plan, South 38 degrees 47 minutes 19 seconds East 498.79 feet to an iron
pin set; thence along land now or formerly of Paul E. Weibley and Wayne Weibley,
South 27 degrees 01 minute 56 seconds West 292.38 feet to an iron pin set; thence
along said Lot No. 4, North 42 degrees 03 minutes 10 seconds West 950.40 feet to
an iron pin set, the point and place of BEGINNING.
BEING Lot No. 3 on the Final Subdivision Plan for Harold S. Swarner and Debra S.
Swamer and containing 6.363 acres.
UNDER AND SUBJECT to the following building and use restrictions:
1. Proper sight lines shall be maintained at the intersection of the rural
residential lane serving the within lot and Rockledge Drive (T -478). Measured along
the centerline, there shall be a clear sight triangle of seventy -five (75) feet from the
point of intersection, and no building or obstruction higher than thirty inches (30 ")
above the grade of the center line of the streets shall be'permitted in this area.
2. All roof leaders from any dwellings constructed on the within lot will be
directly connected to the on -lot downspout basins.
3. The storm water management facilities constructed or to be constructed on
the within lot shall be owned, operated, and maintained by the Grantees herein, their
heirs and assigns. In addition, such Grantees, for themselves, their heirs and assigns,
agree as follows:
a) There is hereby granted, in perpetuity, to South Middleton Township
(Township) the right to enter upon the within lot to inspect on site storm water
facilities on a regular basis and after any major storm /flood event. In the event that
the Grantees, their heirs and assigns, fail to maintain and /or repair the storm water
management facilities in a condition that they may function as intended by design,
within thirty (30) days of notification by the Township, the Township has the right
to enter said property and conduct sold maintenance or repair at the sole cost of
Grantees, their heirs and assigns.
b) The Grantees, their heirs and assigns, agree that no action will be
taken to block or impede the passage of water through sold storm water management
facilities and will place no structure, building or fence nor plant any trees or shrubs
which would impede the use of said facilities for their intended purposes, without
prior approval from the Township.
C) The Grantees, their heirs and assigns, recognize that the storm water
management facilities constructed, or to be constructed, on the within lot are for the
benefit of all lots which are part of the above mentioned Plan and further agree to
construct, repair and replace such storm water management facilities as necessary.
d) The Grantees, their heirs and assigns, agree to replace this agreement
with a similar agreement at such time, and from time to time, plans for the changes
in the existing storm water management system are approved by the Township.
4. As the within lot is served or to be served by a certain Rural Residential Lane,
the within lot is subject to a certain Declaration of Easement and Covenants For
Rural Residential Lane, recorded in Cumberland County, Pennsylvania,
Miscellaneous Book 0726 at page 2641. In addition to the matters set forth in such
Declaration, and not in limitation thereof, with respect to such Rural Residential
Lane:
a) Such rural residential lane shall be improved to a mud free or
otherwise permanently passable condition using a minimum of eight (8 ") of crushed
stone.
b) No improvements other than the cartway and roadside gutters /gravel
infiltration trenches shall be constructed within the right -of -way.
C) Such rural residential lane shall be designed and constructed so as to
cause stormwater drainage to flow toward roadside gutters /gravel infiltration
trenches.
d) The all - weather turnaround has been designed to accommodate
vehicular traffic and fire, ambulance and other emergency vehicles and shall be
constructed as shown on the above mentioned Plan.
e) Such rural residential lane shall be constructed with an apron of
sufficient area to allow for the safe delivery of mail, and for the safety of school
children being picked up and dropped off by school buses.
f) The within lot shall be prohibited from further subdivision.
g) Parking on or along rural residential lanes shall be prohibited. The
Grantees, their heirs and assigns, shall provide adequate parking to accommodate a
minimum of four (4) vehicles on the within lot.
5. The Grantees, their heirs and assigns, shall install and maintain an outside
electric yard light. This light shall be a minimum of 75 watts, at least six (6) feet in
height, and equipped with photoelectric switching device to assure continues
operation between dusk and dawn. Wiring for such light shall be connected directly
to the circuit breaker in the main electrical. panel box in the dwelling, without an
intervening switch between the circuit breaker and the photoelectric switching device.
Such light shall be installed prior to issuance of a certificate of occupancy.
ALSO UNDER AND SUBJECT to the following lot restrictions:
1. This tract of land shall be used for residential purposes only. No business
(except home occupations), commercial or industrial uses shall be permitted
on this tract of land.
2. Only one single family residence, one garage, and one accessory outbuilding
may be erected on this tract of land.
3. All residences shall be stick built and no trailer, mobile home or similar
factory built structure may be located on this tract of land temporarily or
permanently, for any use whatsoever.
4. No structure of a temporary character shall be erected on this tract of land and
used as a residence, whether temporarily or permanently. The foregoing
prohibition shall include, but not be limited to, a basement, tent, recreational
vehicle, camper, shack, garage or barn.
5. No structure of any kind, including, but not limited to, swimming pools, shall
be erected, placed, modified or altered until the building plans, specifications
and plot showing the location of such building have been approved in writing
by Debra Swarner and Harold Swarner, their heirs, successors or assigns as
to conformity and harmony of external design with existing or proposed
structures in this subdivision and as to location of the building with respect
to topography and finished ground elevation, and as to quality of construction
and materials. In the event such building plans, specifications and plot plan
have not been approved within thirty days after the same have been
submitted, or, in any event, if no suit to enjoin the erection any building, or
the making of any alterations has been commenced prior to the completion
thereof such approval will not be required and this covenant will be deemed
to have been fully complied with. All such construction shall be completed
within a reasonable time from the commencement thereof.
6. No breeding or training kennels for dogs shall be kept or maintained upon
this tract of land. Household pets are permitted, including a dog; provided,
however, that all such household pets shall be housed in the dwelling. Dogs
shall not be permitted to roam out of doors without a leash.
7. Any type of livestock kept on the premises shall be housed in a suitable
outbuilding and properly fenced area.
8. Excepting construction or other machinery used for construction of the
dwelling and permitted outbuildings and approved alterations thereto, all
machinery and equipment, including recreational or transportation vehicles,
tractors, brush hogs, backhoes, bulldozers, bobcats and the like, whether
licensed or not, shall be stored inside a building.
9. Nothing shall be done on this tract of land which may be or become and
annoyance or nuisance to the neighborhood.
10. The within described tract of land shall not be further subdivided.
11. If any conflict exists as between the above restrictions and those of any
governmental authority, the more restrictive shall apply.
12. These covenants and restrictions shall run with the land and shall be binding
on all parties and all persons claiming under them.
13. The owner of any lot within the subdivision of which this lot is part shall
have the right to enforce compliance with these restrictions.
BEING the same premises which Harold S. Swarner and Debra S. Swarner, brother
and sister, by Deed dated February 5, 2007, and recorded February 6, 2007, in the
Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in
Deed Book 278, Page 3566, granted and conveyed to Charles J. McKain and Julie F.
McKain, Grantors herein.
Under and subject to any and all building and use restrictions and easements of
record.
AND the said Grantors hereby covenant and agree that they will warrant specially the
property hereby conveyed.
IN WITNESS WHEREOF, said Grantors have hereunto set their hands and seals the day and
year first above written.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF
�• L fSt (SEAL)
Charles J. Mc ain
AL)
;Jie F. McKain
COMMONWEALTH OF PENNSYLVANIA )
): ss.
COUNTY OF CUMBERLAND )
On this, the 29' day of July, 2010, before me, the undersigned officer, personally appeared
Charles J. McKain and Julie F. McKain, known to me or satisfactorily proven to be the persons
whose names are subscribed to the within instrument, and acknowledged that they executed the same
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
AL)
Not" ary Public WE
WMAIUAL ML
IMM L. MUMAY. NaWy Public
(` VIMe Bon, Quobedand County. PA
My Coaaainioa B:pim Dea 13.2013
' � w
I hereby certify that the precise residence and complete post office address of the within
Grantees is 104) tv j , , Cc.I; I r n4 1
Atto y for Grantees
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON
LAW OFFICES
10 EAST HIGH STREET
CARLISLE, PENNSYLVANIA 17013
TELEPHONE 717- 243 -3341
FACSIMILE 717 -243 -1850
INTERNET www.martsonlaw.com
- w
ROBERT P. ZIEGLER
RECORDER OF DEEDS
-
CUMBERLAND COUNTY ,
1 COURTHOUSE SQUARE'
CARLISLE, PA 17013 _ -
� f Y
717- 240 -6370
Instrument Number - 201021546
Recorded On 8/5/2010 At 11:14:20 AM * Total Pages - 8
* Instrument Type - DEED
Invoice Number - 70408 - User ID - KW
* Grantor - MCKAIN, CHARLES J
* Grantee - L, TAM L
* Customer - PYRAMID LAND
* FEES
STATE TRANSFER TAX $1,500-00 Certification Page
STATE WRIT TAX $0.50
STATE JCS /ACCESS T $23.50 DO NOT DETACH
JUSTICE
RECORDING FEES - $17.50 This page is now part
RECORDER OF DEEDS
PARCEL CERTIFICATION $10.00 of this legal document.
FEES
AFFORDABLE HOUSING $11.50
COUNTY ARCHIVES FEE $2.00
ROD ARCHIVES FEE $3.00
SOUTH MIDDLETON SCHOOL $750.00
DISTRICT
SOUTH MIDDLETON $750.00
TOWNSHIP
TOTAL PAID $3,068.00
I Certify this to be recorded
in Cumberland County PA
* u
RECORDER O D
ED
trso
" - Information denoted by an asterisk may change during
the verification process and may not be reflected on this page.
000D18
III IIl1111111111111111111111
1
EXHIBIT "E"
1.3YG 6
.. _ _.
F:1FQ.ES\DATAFILE1Rest Estate \10539.2.DeelWim.ARL _
Crested: 3/27/06 3:51 PM
2006 APR 25 AM 10 59
DECLARATION OF EASEMENT AND COVENANTS
FOR RURAL RESIDENTIAL LANE
WHEREAS, Harold S. Swarner and Debra S. Swarner, are owners of certain tracts of land near
or abutting Rockledge Drive (T478) in South Middleton Township, Cumberland County, Pennsylvania,
and
WHEREAS, Pursuant to Section 720 of the Subdivision and Land Development Ordinance of
South Middleton Township of 1999 (as amended), limited subdivision within the Agricultural &
Conservation Zoning District is permitted with access provided by a rural residential lane, with certain
restrictions; and
WHEREAS, Harold S. Swarner and Debra S. Swarner have obtained approval by the Board of
Supervisors of South Middleton Township of a certain subdivision plan to allow the conveyance, inter alia,
of Lots Numbered 1, 2 and 3 as shown on Final Minor Subdivision Plan titled Final Subdivision Plan
Harold S. Swarner and Debra S. Swarner, prepared by Brehm -Lebo Engineering, Inc., dated August 25,
2005, and revised through February 1, 2006, which will be recorded concurrently or shortly prior to
recording of this declaration; and
WHEREAS, as a condition of approval of the plan, the Board of Supervisors of South Middleton
Township has required the creation of a shared rural residential lane easement to serve lots 1, 2 and 3 of
the aforementioned plan; and
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, do hereby impose
the following easement, covenants, and conditions upon lots 1, 2 and 3 as shown on the plan and agree as
follows:
1. The easement labeled "Rural Residential Lane" as more particularly depicted and
described on the plan, is hereby burdened with an easement which shall be for the
perpetual use of the owners of said lots, in common with each other, for ingress, egress,
and regress to and from respective lots.
2. The owners of lots 1, 2 and 3 shall retain fee simple ownership of said lane. This lane shall
remain in private ownership in perpetuity, and shall never be offered for dedication.
3. Any and all expense, cost, or other charges incurred in the construction and maintenance
of the proposes rural residential lane shall be allocated according to the following
covenants, which covenants shall be included in the deeds of conveyance of lots 1, 2 and
3, and by acceptance of a deed, the owners, heirs, and assigns, of each lot agree to:
a. No further subdivision of any lots shall be permitted.
890726PG2641
b. Only one residential dwelling unit, together with accessory structures, may
be constructed on this lot and accessed by the Rural Residential Lane.
C. The owners of each lot agree to assume 33.33 % of the cost and
responsibility for maintenance (including snow and ice removal), repair,
and improvement of the Rural Residential Lane, together with all
appurtenances and drainage facilities.
d. The covenant to bear the cost to improve, maintain and repair the Rural
Residential Lane, appurtenances and drainage facilities shall be
enforceable by a civil action and in lieu thereof, the owners may agree to
submit any dispute to a panel of 3 neutral arbitrators, one to be chosen by
each of the owners.
e. The owners may agree to amend those covenants and restrictions relating
to the Rural Residential Lane provided, however, that no such amendment
shall effect the covenant set forth in items f and g below.
f. South Middleton Township is not now, and shall not at any time in the
future, be responsible for inspection or the cost of improvements, repairs
and/or maintenance of the Rural Residential Lane, appurtenances and
drainage facilities.
g. Parking on or along a Rural Residential Lane shall be prohibited. Each lot
serviced by a Rural Residential Lane shall provide adequate parking to
accommodate a minimum of four (4) vehicles.
4. These covenants concerning the Rural Residential Lane shall be deemed to be
covenants running with the land and shall be binding upon the owners ofthe lots
1, 2 and 3 and their heirs, executors, administrators, successors, and assigns.
5. This Declaration shall be governed, construed, and enforced in accordance with
the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, we have declared and executed this Declaration of Easement and
Covenants this V1 day of , 2006.
SS:
Harold . Swarner
Debra S. Swarner
10726PG2642
COMMONWEALTH OF PENNSYLVANIA )
): ss.
COUNTY OF CUMBERLAND }
On this, the & day of 4 , 2006, before me, the undersigned officer, personally
appeared HAROLD S. S WARNER and DEBRA S. SWARNER, known to me (or satisfactorily proven)
to be the persons whose names are subscribed to the within instrument, and acknowledged that they
executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(SEAL)
Notary Public
�T 010 j 'U Pp �croro t. ono Ma 0
' p�IRES D C.
1 Cv-rtify this to be recorded
In Cumberland County PA
0 '0' a'4_
Recorder of Deeds
��72�P�2643
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EXHIBIT "H"
From: admin @since1853.com [mailto:admin @since1853.com]��
Sent: Thursday, August 30, 2012 11:26 AM
To: Erik Olsen
Subject: Message from Steve Ewing.
Hi Erik, .
Greg Lego has agreed to meet with all the property owners on Tuesday, September 4, 2012, at 5 p.m. on the lane to
discuss what issues now and in the future we may face with regards to drainage and maintenance of the lane and
culdesac. I hope you and Cindy are open for the meeting. I will be contacting the Lee's to let them know too.
Thanks.
Sincerely,
Steven A. Ewing
https: / /hostingmail.earthlinl net /mail /message.php ?window =true &index =13693 &mailbox =b WJveA %3... 10/18/2012
Steve
On Thu, 30 Aug 2012 14:34:41 -0400, Erik Olsen <eolsen@stricklerins.com> wrote:
I have to be at the soccer fields by 5:15 -5:20 each night so that time wouldn't work for me. I
Erik Olsen, CIC, CPIA
Strickler Agency, Inc.
800 - 503 -8908 Ext. 1110
www.stricklerins.com
Please be aware that coverage cannot be bound or changed via e-mail and is not effective until confirmed
directly by a licensed agent.
-----------------------------------------------------------------------------
If there is any misunderstanding in this transmission, please communicate by telephone or email. This email
transmission may contain information that is proprietary, privileged, or confidential, and is intended only for the use of
the person to whom it is addressed. Any use, copying, retention or disclosure by any person other than the intended
recipient is strictly prohibited. If you received this message in error, please notify the sender immediately by
telephone or return email, and destroy all copies.
-----------------------------------------------
-----------------------------------------------
From: ad'min @since1853.com [mailto:admin @since1853.comj
Sent: Thursday, August 30, 2012 2:49 PM
To: glebo @brehm - lebo.com
Subject: Message from Steve Ewing...
Hi Greg,
The time of 5:00 p.m. doesn't work for Erik Olsen. I'm checking with Erik if 4:30 p.m. would work and would that work for you? Thanks.
Steve Ewing
'12E: Message from Steve Ewing... Page 1 of 1
From "Greg Lebo" <glebo @brehm- lebo.com>
Subject: RE: Message from Steve Ewing...
Sent date: 08/30/2012 03:58:55 PM
7o: <admin @since1853.com>
Inline content has been blocked for your safety.
Show content
Steve,
4:30 is okay.
Gregory S. Lebo, P.E.
Vice President
Brehm -Lebo Engineering, Inc.
17 State Avenue
Carlisle, PA 17013
717- 243 -4114
'RE: Message from Steve Ewing. Page 3 of 4
To: Erik Olsen
Subject: RE: Message from Steve Ewing.
Erik, ;
I just got word from Greg and 4:30 p.m. on Tuesday, September 4, 2012 will work for him. I hope that works for you.
On Thu, 30 Aug 2012 16:30:50 -0400, Erik Olsen <eolsen@stricklerins.com> wrote:
4:00 would be better. We would be getting the kids ready between 4:30 and 5. Problem is I have a 4:00 appointment on the 4th. Maybe
the following week?
Erik Olsen, CIC, CRA
Strickler Agency, Inc.
800 - 503 -8908 Ext. 1110
www. stricklerins. com
ai rffi..
Please be aware that coverage cannot be bound or changed via e-mail and is not effective until confirmed directly by a
licensed agent.
-----------------------------------------------------------------------------
If there is any misunderstanding in this transmission, please communicate by telephone or email. This email transmission may
contain information that is proprietary, privileged, or confidential, and is intended only for the use of the person to whom it is
addressed. Any use, copying, retention or disclosure by any person other than the intended recipient is strictly prohibited. If you
received this message in error, please notify the sender immediately by telephone or return email, and destroy all copies.
From: admin @since1853.com [mailto:admin @since1853.com]
Sent: Friday, August 31, 2012 9:02 AM
To: Erik Olsen
Subject: RE: Message from Steve Ewing.
I talked to Casandra last evening and she wasn't sure if they would be able to be there on Tuesday at 4:30 p.m. but would try. I don't think it
will be more than 15 minutes unless there are alot of questions for Mr. Lebo. If you and the Lei's cannot make it, I will ask Greg to write us a
letter to explain his findings. Thanks, and have a great weekend.
Steve
On Fri, 31 Aug 2012 09:58:08 -0400, Erik Olsen <eolsen @ stricklerins.com> wrote:
Sounds good.
Erik Olsen, CIC, CPIA
Strickler Agency, Inc.
800 - 503 -8908 Ext. 1110
www. stricklerins. com
Please be aware that coverage cannot be bound or changed via e-mail and is not effe
agent. ctive until confirmed directly by a licensed
If there is any misunderstanding in this transmission, please communicate by telephone or email. This email transmission may contain
information that is proprietary, privileged, or confidential, and is intended only for the use of the person to whom it is addressed. Any use,
copying, retention or disclosure by any person other than the intended recipient is strictly prohibited. If you received this message in error,
please notify the sender immediately by telephone or return email, and destroy all copies.
ZE: Message from Steve Ewing...
Page 1 of 1
1-rorn <admin @since1853.com> - - '' - • - - -
..................
Subject: RE: Message from Steve Ewing...
Sent date: 08/31/2012 09:09:51 AM
To: "Greg Lebo "<glebo @brehm- lebo.com>
Good morning Greg,
'm not 100% sure if the other parties involved will be able to make it on Tuesday, September 4, at 4:30 p.m., but Jane and I will. We made need to have you write a letter to all of us
:xplaining your findings. I can't thank you enough Greg. I appreciate your help in this matter as I'm attempting to protect not only my investment in our home and property but also our
ieighbor's investment as well and save money in the long run. Have a great weekend and I'll see you on Tuesday.
Sincerely,
Steve Ewing
RE Message from Steve Ewing.
To: Erik Olsen Page 2 of 4
Subject: RE: Message from Steve Ewing.
Hi Erik,
Sorry you weren't able to make it yesterday. The Ly's were there and they were in agreement with what Greg Lebo suggested. The good news is that Greg
believes we can save the infiltration trenches which would save us money in the long.run if we can get them re- established. The Ly's suggested we have a
meeting with all of us present to try and get a timeline and what the cost would be. I really don't think it is going to be that much. The Ly's are available
pretty much during the week after 6 P.M. Let me know your schedule so we can move forward.
Thanks, Steve
On Wed, 5 Sep 2012 15:49:37 -0400, Erik Olsen <eolsen@stricklerins.com> wrote:
Sorry I couldn't make it. I'll have to look and see what works for us. Its tough right now with both kids having soccer until 7:30 most nights and we have a dog
training class now on Friday nights.
I think you had mentioned Greg was going to write up his concerns /suggestions. Did he give you copies? I'd also be glad to call him but since he came out for you,
I don't want to step on any toes.
I was thinking the focus was going to be on the lane itself, and adding more stone to it and coming up with a way to keep ruts from developing during hard rains. I
guess I didn't realize there are issues with the infiltration trenches, other than with the grade of all three lots, during hard rains they aren't able to do much good
because they just get overwhelmed like a gutter on a house.
Let me know about Greg, and I'll see if we can find a date that works.
Erik Olsen, CIC, CPIA
Strickler Agency, Inc.
800- 503 -8908 Ext. 1110
www.strickletins.com
Please be aware that coverage cannot be bound or changed via e-mail and is not effective until confirmed directly by a licensed agent.
-----------------------------------------------------------------------------
If there is any misunderstanding in this transmission, please communicate by telephone or email. This email transmission may contain information that is
proprietary, privileged, or confidential, and is intended only for the use of the person to whom it is addressed. Any use, copying, retention or disclosure by
any person other than the intended recipient is strictly prohibited. If you received this message in error, please notify the sender immediately by telephone
or return email, and destroy all copies.
.._._ ............. __.._...__.......
From: a.Jmin @since1853.com [mailto:admin @since1853.com]
Sent: Wednesday, September 05, 2012 4:59 PM
To: Erik Olsen
Subject: RE: Message from Steve Ewing.
Yes, I had mentioned about having Greg write a letter, but I don't think it's really necessary since the issues we are facing are fixable at this time. I have no problem with
you calling Greg. Quite frankly Erik, I am surprised how well the lane is holding up. Yes, there are a few issues ... the rock head should be broken off on the north side of
the lane and as Greg suggested some stone (2A modified) be added to get back the crown of the lane and maybe the swales along the lane be cleaned up but that's it.
The reason the infiltration trenches at the head of the culdesac aren't working is because they have become clogged and compacted from landscaping, traffic and
construction equipment. This is fixable. We all have large investments in our properties and I would like to see us all work on this common ground to keep it clean and
well maintained for the long term benefit of our properties and their values. Erik, we ARE NOT talking about thousands of dollars. Let us know when you and Cindy are
available. I can give you and the Ly's a material estimate with no problem. Thanks
RE: Message from Steve Ewing. Page 1 of 4
From "Erik Olsen" <eolsen@stricklerins.com>
_
Subject: RE: Message from Steve Ewing.
Sent date: 09/10/2012 02:16:03 PM
To: "'admin@since1853 .com"<admin@since1853.com>
Cc: "Erik Olsen" <olsens @centurylink.net>
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A Monday or Wednesday could be made to probably work after 6:00 for all of us to get together. I did see that some stone got delivered this morning so maybe you guys worked
it out this weekend. I didn't get back until around 8:00 last night.
Erik Olsen, CIC, CPIA
Strickler Agency, Inc.
800 -503 -8908 Ext. 1110
www. stricklerins. com
Please be aware that coverage cannot be bound or changed via e-mail and is not effective until confirmed directly by a licensed agent.
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EXHIBIT "I"
Law Offices of
SAIDIS, SULLIVAN & ROGERS
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
ROBERT C. SAIDIS CARLISLE, PENNSYLVANIA 17013 LEMOYNE OFFICE
DANIEL L. SULLIVAN TELEPHONE: (717) 243 -6222 — FACSIMILE: (717) 243 -6486 635 NORTH 12 STREET, STE.400
ELYSE E. ROGERS EMAIL: attorney @ssr- attorneys.com LEMOYNE, PA 17043
JOHN A. FEICHTEL www. ssr - attorneys.com TELEPHONE: (717) 612 -5800
DEAN E. REYNOSA FACSIMILE: (717) 612 -5805
TODD F. TRUNTZ
MARYLOU MATAS
SEAN M. SHULTZ Ofcoansel
ROBERT B. HAMILTON JOHN E. SLIKE
HANNAH WHITE- GIBSON STEPHEN L. GROSE
REPLY TO CARLISLE
Email: bhamilton(a�ssr- attornevs.com
October 16, 2012
Mr. and Mrs. Stephen Ewing
1425 Rockledge Drive
Carlisle, PA 17015
Re: Maintenance and Repair of Rural Residential Lane
Dear Mr. and Mrs. Ewing:
Please be advised that this office represents Tom and Cassandra
Ly, your neighbors residing at 1435 Rockledge Drive. The Ly's,
along with Mr. and Mrs. Erik Olsen, your neighbors residing at
1415 Rockledge Drive, have expressed several concerns regarding
the work you are currently performing on the lane and cul -de -sac
shared by all three of you. I have copied the Olsen's attorney,
Mr. James Hughes, to this letter as well.
As per the terms of the Declaration of Easement and Covenants, all
three - ronerty owners on Rockledge Drive share equal financial
responsibility for all repairs, improvements, and maintenance
performed on the rural residential lane. Thus, it goes without
saying that all three owners should also be equally involved in
the decision - making of undertaking such tasks. However, your
recent actions have not shown that you are willing to work
together with your neighbors in this respect.
Both neighbors are strongly opposed to your unilateral decision-
making and personal performance of work on the rural residential.
lane and cul -de -sac without first obtaining their consent and
approval. All three property owners should first reach a mutual
agreement before any owner performs such work along the lane or
cul -de -sac.
Mr. and Mrs. Stephen Ewing
October 16, 2012
Page 2
In addition, all work - especially work performed on the drainage
facilities - should be handled by professionals familiar with the
types of maintenance and repairs needed. Such work should not be
handled by any one owner at his or her whim. By performing such
work on your own, there is an increased risk of future problems
occurring, which will result in higher repair costs for all three
owners.
Since you have already performed extensive work to the lane and
cul -de -sac without your neighbors' consent, we ask that you agree
to do the following:
1. Assume full financial responsibility for the costs already
incurred as a result of the work you have performed thus
far without your neighbors' consent.
2. Agree to hire a municipal or civil engineer, or other
professional familiar with the issues involved, to review
and assess the work you have performed in order to ensure
that no future problems with the lane or cul -de -sac will
occur as a result of your work. This professional shall be
selected by mutual agreement among all three property
owners residing along Rockledge Drive.
3. Assume full financial responsibility for future repair
costs attributed to work you have already performed, if
the engineer or other professional deems that repair is
necessary after his /her assessment.
We also ask that you refrain from performance of any future work
until you meet with both the Ly's and the Olsen's and reach an
agreement which.out.lines the extent anu costs necessary to
maintain, repair, and improve the lane and cul -de -sac. Your
neighbors are willing to share the necessary costs once such an
agreement has been reached. However, they cannot and do not abide
by your current approach to resolving such matters. If you
continue to disregard your neighbors' input and decision - making of
how the lane and cul -de -sac should be maintained, we will have no
choice but to proceed in an adversarial fashion.
I look forward to hearing that a mutual agreement has been reached
among your neighbors. Please contact me if you have any questions.
Mr. and Mrs. Stephen Ewing
October 16, 2012
Page 3
Very Truly Yours,
Robert B. Hamilton, Esq.
Saidis, Sullivan & Rogers
CC: Tom & Cassandra Ly
1435 Rockledge Drive
Carlisle, PA 17015
James D. Hughes, Esq.
Salzmann Hughes, P.C.
354 Alexander Spring Rd.
Suite 1
Carlisle, PA 17015
EXHIBIT "J"
���� � 79 St. Paul Drive • Chambersburg, PA • 17201 • (717) 263.2121 •Fax: (717) 263 -0663
i��] 354 Alexander Spring Road • Suite 1 • Carlisle, PA • 17015 • (717) 249 -6333 • Fax: (717) 249 -7334
GH ES, i �Cj� 239 B E. Main St. •Waynesboro, PA • 17268.(717) 762 -3170 -Fax: (717) 762 -0988
105 N. Front St. • Suite 401 • Harrisburg, PA • 17101.(717) 234 -6700 • Fax: (717) 249 -7334
Attorneys at Law
EXPERIENCE - INTEGRITY • INNOVATION
*Please reply to Carlisle Office
e
Novemb r 1 201 2
Mr. and Mrs. Stephen Ewing
1425 Rockledge Drive
Carlisle, PA 17015
Re: Maintenance and Repair of Rural Residential Lane
Dear Mr. and Mrs. Ewing:
Please be advised that our firm represents Mr. and Mrs. Erik Olsen, who reside
adjacent to your property at 1415 Rockledge Drive. Recently I received a copy of a letter
from your other neighbor's attorney expressing a number of concerns with respect to
work which you have unilaterally undertaken in the private residential lane and cul -de-
sac which is shared by all of you.
I would like to reiterate that my clients, Mr. and Mrs. Erik Olsen, also strongly
oppose your unilateral actions in performing work on the right -of -way area without any
input from Mr. and Mrs. Olsen or their consent. As Attorney Hamilton points out in his
letter to you, dated October 16, 2012, you assume full financial responsibility for any and
all of the work that has already been performed without your neighbors' consent. In
addition, to the extent that there are any future problems with the lane, the cul -de -sac or
any stormwater issues which occur as a result of your unilateral actions, the same shall be
solely your responsibility and liability. Mr. and Mrs. Olsen will also expect a civil
engineer to be involved to correct any such problems that may affect their property.
Further, it is my understanding that you have extended a portion of the blacktop
from your driveway into the right -of -way. Please advise as to when this area will be
removed and returned to its original stone condition. Mr. and Mrs. Olsen in no way
shape or form agree or consent to this area being.partially paved given that the remaining
portions of the cul -de -sac is in stone.
ATTORNEYS
G. Bryan Salzmann, Esq. Samuel E. Wiser, Esq. Laura Rebecca Ables, Esq. E. Lee Stinnett II, Esq.
James D. Hughes, Esq. Thomas J. Finucane, Esq. George E Douglas, 111, Esq. Tiffany M. Cartwright, Esq.
Adam R, Schellhase, Esq. Eileen C. Finucane, Esq. Ann F. DePaulis, Esq. Bradley 1. Betack, Esq.
Scott T Wyland, Esq. Stephen E. Patterson, Esq. William W. Thompson, Esq. Eric K. Grugel, Esq.
Charles E. Zaleski, Esq. Nancy H. Meyers, Esq. Rebecca R. Hughes, Esq. Jason E. Kelso, Esq.
Kurt E. Williams, Esq. Patricia R. Brown, Esq. David H. Martineau, Esq.
i
Mr. and Mrs. Stephen Ewing
November 1, 2012
Page Two
As is indicated of record, Mr. and Mrs. Olsen, as well as I believe Mr. and Mrs.
Ly, are willing to share the necessary costs to maintain the rural residential lane and cul-
de -sac, but not in the manner in which you have chosen to proceed.
At your earliest convenience, please contact me to discuss these issues or have
your legal counsel do the same.
Very truly yours,
S HUGHES, AG'.
s D. Hughes
JDH/kar
cc: Mr. and Mrs. Erik Olsen (via email only)
Robert B. Hamilton, Esquire (via email only)
EXHIBIT "K"
Louis J. Capozzi, Jr., Esquire* 1200 Camp Hill Bypass
Daniel Rea y', Esquire 1 Esquire
R
Donald R. Reavey Ca o & ssociates P.C. Camp Hill, PA 17011
Craig 1. Adler, Esquire ** ttorn t Law Mailing Address: P.O. Box 5866
Andrew R. Eisemann, Esquire Harrisburg, PA 17110
Bruce G. Baron, Esquire
Dawn L. Richards, Esquire ** Telephone: (117) 233 -4101
Matthew A. Thomsen, Esquire Facsimile: (717) 233 -4103
Brandon S. Williams, Esquire www.c4pozziassociates.com
Paul R. Van Fleet, Esquire
Marc A. Crum, Esquire
Timothy Ziegler, Sr. Reimb. Analyst Mid -Penn Abstract Company
Erin E. Motter, Jr. Reimb Analyst Charter Settlement Company
Karen L. Fisher, Paralegal Telephone: (717) 234 -3289
Keyoung J. Gill, Paralegal Facsimile: (717) 234 -1670
Gwenn M. Keene, Paralegal
*(Licensed in PA, NJ and MD)
* *(Licensed in PA and NJ)
December 10, 2012
Robert B. Hamilton, Esq.
Law Offices of Saidis, Sullivan, and Rogers, P.C.
26 West High Street
Carlisle, PA 17013
James D. Hughes, Esq.
Salzmann Hughes, P.C.
354 Alexander Spring Road, Suite 1
Carlisle, PA 17015
RE: Maintenance and Repair of Rural Residential Lane
Dear Messrs. Hamilton and Hughes,
Please be advised that this office represents Mr. Steven A. Ewing and Mrs. Jane B. Ewing, residing
at 1425 Rockledge Drive, Carlisle, PA 17015 in the above referenced matter. We are in receipt of Mr.
Hamilton's letter to Mr.. and Mrs. Ewing dated October 16, 2012, sent on behalf of Tom and Cassandra Ly
and Mr. Hughes' letter, dated November 1, 2012, sent on behalf of Erik and Cindy Olsen. We have also
reviewed the Declaration of Easements regarding the subject property ( "Declaration ") and all covenants for
the subject property.
The cul -de -sac at issue was substantially damaged as a direct result of the home construction
performed by your clients on their respective properties. In addition, my client's private property was
damaged by runoff from improperly maintained construction sites. My client gave prior warning that the
construction conditions would cause substantial damage to the cul -de -sac and my client's property.
Unfortunately for my client, he was proven correct. Both the cause and the resulting damage have been well
documented by my client.
As originally designed, the only water in the cul -de -sac should be resulting from natural rainfall
accumulation, overflow from which the infiltration trenches were designed to accommodate. However, the
lack of protective measures on your clients' properties during their construction caused an excess of dirt and
water to accumulate in the trenches, thus filling the trenches and preventing the proper diversion of water
into the subsurface. Our client repeatedly asked that your clients take protective measures against this
accumulation, such as placing silt fences to prevent dirt and water runoff, but your clients failed to do so.
Our client was even told by builders for your clients that they should have instituted protective measures to
prevent dirt and water runoff from accumulating in the cul -de -sac and on our client's property, but that your
clients failed to authorize those measures. As a result of this lack of action on the part of your clients, our
clients had no choice but to begin the repair process to protect not only the mutually owned cul -de -sac, but
also their property, upon which water runoff was causing soil erosion damage.
Mr. Hamilton's letter indicates that our clients were not willing to work with your clients to resolve
this matter. In fact, our clients took extraordinary measures, including emails and telephone calls to include
your clients in the decision making process prior to undertaking such tasks. Our clients also had several
meetings with the Lys and multiple writings submitted to the Olsens. Our clients only undertook action
when the water damage was so great as to threaten not only the cul -de -sac, but our clients' property. To say
that our clients did not attempt to involve your clients in the renovation and maintenance process is
disingenuous.
Mr. Hamilton's letter also states that the work begun by our clients should not be handled by any
owner. Nowhere in the Declaration governing the rural residential lane is there a requirement that each
neighbor give consent as to appropriate measures to be taken regarding the maintenance, repair, or
improvement of the cul -de -sac or the lane itself. The appropriate standard for undertaking such work is
whether the maintenance is appropriate or required. Given the fact that the infiltration trenches in the cul -de-
sac were no longer functioning per design due to the accumulation of silt caused by your clients, our clients'
actions were justified. Despite our clients' efforts to resolve this problem with your respective clients, the
damage to the cul -de -sac was simply too great to delay action. We would also like to note that our clients
have repeatedly seen vehicles parked along the rural residential lane by guests of your clients, in violation of
the Declaration.
One of the demands in your letter is that our clients agree to hire a professional familiar with the
issues involved to oversee the work taken. Our clients hired an engineer to oversee the maintenance of the
cul -de -sac from the very beginning, despite the fact that the Declaration has no requirement that such a
professional be engaged. The Declaration also contains no requirement that your clients must consent to the
retention of an engineer.
Within the Declaration, the owners of Lots 1, 2, and 3 (the Olsens, Ewings, and Lys, respectively)
agreed to "assume 33.33% of the cost and responsibility for maintenance ... repair, and improvement of the
Rural Residential lane, together with all appurtenances and drainage facilities." At this point, the expenses
related to the maintenance and repair of the infiltration trenches are relatively small, amounting to
approximately $3,080.00 in total.
Please be advised that we expect your clients to honor the agreement to share equal responsibility for
the costs of maintenance of the rural residential lane as set forth in the Declaration of Easements. If they are
not willing to do so, our clients are prepared to take appropriate legal action, which action will include a
claim for damage to our client's property. In addition, we believe that under the circumstances, we will be
successful in recovering all of our costs related to repair of the cul -de -sac since your clients were the direct
cause of the damage requiring repairs. Please consult with your respective clients. In light of the amount in
controversy, we would like to settle the case without taking formal legal action. However, absent agreement .
to our terms by each of your clients, our clients have resolved to take all action necessary to be compensated
for all of their damages.
If you have any questions, please feel free to contact us at the information above.
Sincerely,
z- - ;7
6 1/Paul R. Van Fleet, Esq.
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson FILED-0FTICE
Sheriff ur THE PROTHONOTAIT �
Jody s smith 13 JUN .14 PH .3� 45
Chief.Deputy
Richard W Stewart ' `"' M116RLAND c-oQRTY*
Solicitor OU.fCE OF T<,V�MFC PENNSYLVANIA
Steven A Ewing Case Number
vs. 2013-3155
Tam L Ly(et al.)
SHERIFF'S RETURN OF SERVICE
06/05/2013 09:08 PM-Deputy Dennis Fry, being duly sworn according to law, served the requested Complaint&
Notice by handing a true copy to a person representing themselves to be Cassandra Ly wife,who
accepted as"Adult Person in Charge"for Tam L Ly at 1435 Rockledge Drive, South Middleton, Carlisle,
PA 17015.
7ENNIt FRY, DEP
06/05/2013 09:08 PM- Deputy Dennis Fry, being duly sworn according to law, served the requested Complaint&
Notice by"personally"handing a true copy to a person representing themselves to be the Defendant, to
wit: Cassandra L Ly at 1435 Rockledge Drive, South Middleton, Carlisle, PA 17015.
DENNIBIFRY, DEPUT
06/05/2013 09:14 PM-Deputy Dennis Fry, being duly sworn according to law, served the requested Complaint&
Notice by"personally"handing a true copy to a person representing themselves to be the Defendant,to
wit: Erick S Olsen at 1415 Rockledge Drive, Carlisle, PA 17015.
DENN FRY, DEPUTY'
06/05/2013 09:14 PM- Deputy Dennis Fry, being duly sworn according to law, served the requested Complaint&
Notice by handing a true copy to a person representing themselves to be Erick Olsen, husband,who
accepted as"Adult Person in Charge"for Cynthia Marie Olsen at 1415 Rockledge Drive, Carlisle, PA
17015.
DENNI FRY, DEPUT`
SHERIFF COST: $101.24 SO ANSWERS,
June 06, 2013 RbNO R ANDERSON, SHERIFF
(c)CountySuife Sheriff.7eseosofl,lnc.
C
czar —
r71 t"n T d
�" (' -••
James D.Hughes,Esq.
Attorney ID#58884
Jason E.Kelso,Esq. '
Attorney ID#209107 C: W
SALZMANN HUGHES,P.C.
354 Alexander Spring Road, Suite 1
Carlisle,PA 17015
(717)249-6333
STEVEN A. EWING and IN THE COURT OF COMMON PLEAS
JANE B. EWING OF CUMBERLAND COUNTY,
Plaintiffs PENNSYLVANIA
V. CIVIL ACTION—AT LAW
TAM L. LY, CASSANDRA L. LY, ERIK NO: 13-3155
S. OLSEN, and CYNTHIA M. OLSEN :
Defendants.
NOTICE
To: Steven A. Ewing and
Jane B. Ewing
c/o Paul R. Van Fleet, Esq.
Capozzi Adler, P.C.
P.O. Box 5866
Harrisburg, PA 17110
You are hereby notified to plead to the enclosed Answer with New Matter and Counterclaim
within twenty(20) days from service hereof or a default judgment may be entered against you.
Respectfully submitted,
SALZMANN HUGHES,P.C.
By:
J es D. Hughes, Esquire
torney I.D. No. 58884
Jason E. Kelso, Esquire
Attorney I.D. No. 209107
354 Alexander Spring Road, Suite 1
Carlisle, PA 17015
(717)249-6333
Date: July 10, 2013 Attorneys for Defendants
James D.Hughes,Esq.
Attorney ID#58884
Jason E.Kelso,Esq.
Attorney ID#209107
SALZMANN HUGHES,P.C.
354 Alexander Spring Road,Suite 1
Carlisle,PA 17015
(717)249-6333
STEVEN A. EWING and IN THE COURT OF COMMON PLEAS
JANE B. EWING OF CUMBERLAND COUNTY,
Plaintiffs PENNSYLVANIA
V. CIVIL ACTION—AT LAW
TAM L. LY, CASSANDRA L. LY, ERIK NO: 13-3155
S. OLSEN, and CYNTHIA M. OLSEN
Defendants. :
ANSWER TO COMPLAINT WITH NEW MATTER AND COUNTERCLAIM
AND NOW, come Defendants, Tam L. Ly, Cassandra L. Ly, Erik S. Olsen, and Cynthia
M. Olsen, by and through their legal counsel, Salzmann Hughes, P.C., and hereby files this
Answer with New Matter and Counterclaim to Plaintiffs' Complaint and aver as follows:
1. Admitted. The Final Subdivision Plan for Harold S. Swarner and Debra S. Swarner dated
August 25, 2005 (hereinafter "Final Subdivision Plan") and attached as Exhibit "A" to
Plaintiffs' Complaint is a written document that speaks for itself. Strict proof thereof is
demanded at trial.
2. Admitted.
3. Admitted.
4. Denied. Defendants will not assume which Defendant Plaintiffs are referring to in each
averment.
5. Denied. The Deed dated December 29, 2006 and attached as Exhibit `B" to Plaintiffs'
Complaint is a written document that speaks for itself and Defendants deny any
characterization of this document. Strict proof thereof is demanded at trial.
6. Denied. The Deed dated December 29, 2006 and attached as Exhibit "C" to Plaintiffs'
Complaint is a written document that speaks for itself and Defendants deny any
characterization of this document. Strict proof thereof is demanded at trial.
7. Denied. The Deed dated July 29, 2010 and attached as Exhibit "D" to Plaintiffs'
Complaint is a written document that speaks for itself and Defendants deny any
characterization of this document. Strict proof thereof is demanded at trial.
8. Denied. The Declaration of Easement and Covenants for Rural Residential Lane
recorded with the Office of the Recorder of Deeds in and for Cumberland County,
Pennsylvania in Misc. Book 726, Page 2641 (hereinafter "Declaration") and attached as
Exhibit "E" to Plaintiffs' Complaint is a written document that speaks for itself and
Defendants deny any characterization of this document. Strict proof thereof is demanded
at trial.
9. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
10. Denied. The Declaration is a written document that speaks for itself and Defendants
deny any characterization of this document. By way of further response, this averment is
a conclusion of law to which no response is required. Strict proof thereof is demanded at
trial.
11. Denied. The Declaration is a written document that speaks for itself. Defendants deny
any characterization of this document.
a. Denied. The Declaration is a written document that speaks for itself.
b. Denied. The Declaration is a written document that speaks for itself.
i. Denied. The Declaration is a written document that speaks for itself.
ii. Denied. The Declaration is a written document that speaks for itself.
iii. Denied. The Declaration is a written document that speaks for itself.
12. Denied. The Declaration is a written document that speaks for itself and Defendants
deny any characterization of this document. Strict proof thereof is demanded at trial.
13. Denied. The Declaration is a written document that speaks for itself and Defendants
deny any characterization of this document. To the extent a response is required, it is
specifically denied that the Ewings attempted to involve their neighbors as a matter of
courtesy. To the contrary, the Ewings failed to work with their neighbors at times
convenient to all parties. By way of further response, the Ewings unilaterally performed
work on the cul-de-sac and the rural residential lane by themselves without the consent of
Defendants and without providing Defendants with information of the work to be
performed. Strict proof thereof is demanded at trial.
14. Denied in part and admitted in part. The Final Subdivision Plan is a written document
that speaks for itself and Defendants deny any characterization of this document. It is
admitted that a portion of the rainfall naturally flows downhill from the Ly Property and
the Olsen Property towards the Ewing Property. By way of further response, the Ewing
Property, as depicted on the Final Subdivision Plan, is situated in a low lying, saucer like
area. Strict proof thereof is demanded at trial.
15. Denied. The Final Subdivision Plan is a written document that speaks for itself and
Defendants deny any characterization of this document. After a reasonable investigation,
Defendants are without sufficient knowledge or information to either admit or deny
whether the Final Subdivision Plan with design plans were approved by the Board of
Commissioners) of the South Middleton Township on April 16, 2006. Strict proof
thereof is demanded at trial.
16. Denied. The Final Subdivision Plan is a written document that speaks for itself and
Defendants deny any characterization or interpretation of this document. Strict proof
thereof is demanded at trial.
1 South Middleton Township does not have a Board of Commissioners, but rather a Board of Supervisors.
17. Denied. The Final Subdivision Plan is a written document that speaks for itself and
Defendants deny any characterization or interpretation of this document. Strict proof
thereof is demanded at trial.
18. Denied. After a reasonable investigation, Defendants are without sufficient knowledge or
information to either admit or deny this averment. Strict proof thereof is demanded at
trial.
19. Denied. After a reasonable investigation, Defendants are without sufficient knowledge or
information to either admit or deny this averment. Strict proof thereof is demanded at
trial.
20. Denied. After a reasonable investigation,Defendants are without sufficient knowledge or
information to either admit or deny this averment. By way of further response, Plaintiffs
unilaterally took actions on their property including but not limited to extending their
driveway into the cul-de-sac, which is not permitted pursuant to the Declaration and the
Final Subdivision Plan; thus, causing excess rainwater to puddle. Strict proof thereof is
demanded at trial.
21. Admitted. By way of further response, the Olsens contracted with Hoffman Custom
Homes, Inc. to construct and build their residence.
22. Denied. The averments of this paragraph are specifically denied. By way of further
response, and upon information and belief, the Olsens acted in accordance with the Final
Subdivision Plan. By way of further response and to the contrary and upon information
and belief, the Olsens'contractor's excavating and other actions to construct their
residence did not interfere with, damage, or obstruct the stormwater management system
implemented by the Developers. Strict proof thereof is demanded at trial.
23. Denied. The averments of this paragraph are specifically denied. By way of further
response, and upon information and belief, the Olsens and their contractor acted in
accordance with the Final Subdivision Plan. Strict proof thereof is demanded at trial.
24. Denied. The averments of this paragraph are specifically denied. Strict proof thereof is
demanded at trial.
25. Denied, After a reasonable investigation, the Olsens are without sufficient knowledge or
information to either admit or deny the averment concerning any conversations with
Steve Gordon. The Olsens have no recollection of the conversations or advisements
referred to in these averments and therefore specifically deny these averments. Strict
proof thereof is demanded at trial.
26. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, these averments are specifically denied. Strict proof thereof
is demanded at trial.
27. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the Olsens specifically deny the averments of this
paragraph. Strict proof thereof is demanded at trial.
28. Denied. This averment is a conclusion of law to which no response is required, To the
extent a response is required, it is specifically denied that the Olsens acted negligently in
any manner whatsoever. Defendants deny any characterization or interpretation of the
photographs attached to Plaintiffs' Complaint as Exhibit "F." Strict proof thereof is
demanded at trial.
29. Admitted. By way of further response, the Lys contracted with Roland Builder, Inc. to
construct and build the Ly residence, which said construction commenced on or about
August 11, 2010.
30. Denied. It is specifically denied that the Lys failed to follow the Final Subdivision Plan
or failed to take other protective measures or precautions. To the contrary, and upon
information and belief, the Lys' contractor, Roland Builder, Inc., constructed the Lys'
residence in accordance with specifications and the Final Subdivision Plan. Strict proof
thereof is demanded at trial.
31. Denied. The Lys specifically deny the averments of this paragraph. The Lys incorporate
their answer to paragraph 30 above. Strict proof thereof is demanded at trial.
32. Denied. The Lys specifically deny the averments of this paragraph. To the contrary and
upon information and belief, the Lys acted in accordance with the Final Subdivision Plan.
Strict proof thereof is demanded at trial.
33. Denied. After a reasonable investigation, the Lys are without sufficient knowledge or
information to either admit or deny this allegation. To the extent a response is required,
the averments of this paragraph are specifically denied. Strict proof thereof is demanded
at trial.
34. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, it is specifically denied that the Lys acted negligent in any
manner whatsoever. Strict proof thereof is demanded at trial.
35. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
36. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
37. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Defendants deny any characterization or interpretation of the documents attached to
Plaintiffs' Complaint. Strict proof thereof is demanded at trial.
38. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
39. Denied. The averments of this paragraph are specifically denied. To the contrary and
upon information and belief, Defendants' respective contractors have acted in accordance
with the Final Subdivision Plan and did not act in a negligent manner. Strict proof
thereof is demanded at trial.
40. Denied. After a reasonable investigation, Defendants are without sufficient knowledge or
information to either admit or deny this averment. To the extent a response is required,
the averments of this paragraph are specifically denied. Strict proof thereof is demanded
at trial.
41. Denied, After a reasonable investigation,Defendants are without sufficient knowledge or
information to either admit or deny this averment. Strict proof thereof is demanded at
trial.
42. Denied. The email conversation is a written document that speaks for itself; however,the
email conversation attached as Exhibit "H" does not include all correspondence between
the parties. To the extent a response is required, the averments of this paragraph are
specifically denied. To the contrary, Plaintiffs unilaterally took actions that were in
direct contradiction with the recommendations of their engineer, which said unilateral
actions benefited the property of Plaintiffs and caused excess rainwater to puddle on the
cul-de-sac. Strict proof thereof is demanded at trial.
43. Denied. The attached email is a written document that speaks for itself. Strict proof
thereof is demanded at trial.
44. Denied. The averments in this paragraph are specifically denied. To the contrary, the
Olsens offered to meet with the Ewings on several occasions; however, Plaintiffs only
desired to meet at times convenient for them and not for the Olsens. Strict proof thereof
is demanded at trial.
45. Admitted in part and denied in part, It is admitted that the Lys attended a part of the
meeting with Plaintiffs and Greg Lebo, Engineer at Brehm-Lebo. It is specifically denied
that Greg Lebo stated that any trench was in need of repair or that the embankment
needed to be reestablished. To the contrary, Mr. Lebo stated that two (2") or three (3")
inches of existing stone could be scraped up from any infiltration trench to assess whether
and how far any silt and debris had accumulated within the trench, which the Lys
acknowledged this plan of assessment. By way of further response, Plaintiffs unilaterally
dug approximately two (2') to three (3') feet out of the trenches adjacent to the Ewings'
property and part of a trench adjacent to the Olsens's property. Strict proof thereof is
demanded at trial.
46. Denied. After a reasonable investigation, Defendants are without sufficient knowledge or
information to either deny or admit this averment. To the extent a response is required,
the averments of this paragraph are specifically denied. By way of further response,
Plaintiffs took unilateral actions on their property which has caused stormwater to remain
and puddle in the cul-de-sac rather than flow in its natural course. Strict proof thereof is
demanded at trial.
47. Denied. After a reasonable investigation, Defendants are without sufficient knowledge or
information to either admit or deny this averment. To the extent a response is required,
the averments of this paragraph are specifically denied. By way of further response,
Plaintiffs have failed to provide an invoice for said cost of labor and materials and an
explanation of the work allegedly performed to Defendants. By way of further response,
the Lys requested an estimate of the work to be performed, which Plaintiffs never
produced prior to commencing any work. Strict proof thereof is demanded at trial.
48. Denied. After a reasonable investigation,Defendants are without sufficient knowledge or
information to either admit or deny this averment. To the extent a response is required,
the averments of this paragraph are specifically denied. Strict proof thereof is demanded
at trial.
49. Denied. After a reasonable investigation, Defendants are without sufficient knowledge or
information to either admit or deny this averment. To the extent a response is required,
the averments of this paragraph are specifically denied. By way of further response,
Plaintiffs have failed to provide an invoice for said cost of labor and materials and an
explanation of the work allegedly performed to Defendants. By way of further response,
the Lys requested an estimate of the work to be performed, which Plaintiffs never
produced prior to commencing any work. Strict proof thereof is demanded at trial.
50. Denied. After a reasonable investigation, Defendants are without sufficient knowledge or
information to either admit or deny this averment.
51. Denied. The letter dated October 16, 2012 and attached as Exhibit "I" to Plaintiffs'
Complaint is a written document that speaks for itself Defendants deny any
characterization or interpretation of the letter. This paragraph contains a conclusion of
law to which no response is required. To the extent a response is required, the averments
of this paragraph are specifically denied. Strict proof thereof is demanded at trial.
52. Denied. After a reasonable investigation, Defendants are without sufficient knowledge or
information to either admit or deny this averment. To the extent a response is required,
the averments of this paragraph are specifically denied. Strict proof thereof is demanded
at trial.
53. Denied. The letter dated November 1, 2012 and attached as Exhibit "J" to Plaintiffs'
Complaint is a written document that speaks for itself. Defendants deny any
characterization or interpretation of this letter. This paragraph contains a conclusion of
law to which no response is required. To the extent a response is required, the averments
of this paragraph are specifically denied. Strict proof thereof is demanded at trial.
54. Denied. The letter dated December 10, 2012 and attached as Exhibit "K" to Plaintiffs'
Complaint is a written document that speaks for itself. Defendants deny any
characterization or interpretation of this letter. To the extent a response is required, the
averments of this paragraph are specifically denied. Strict proof thereof is demanded at
trial.
55. Denied. The averments of this paragraph are specifically denied. By way of further
response, Plaintiffs have not and continue to refuse to provide Defendants with invoices
and an explanation of the work allegedly performed. This paragraph contains
conclusions of law to which no response is required. Strict proof thereof is demanded at
trial.
COUNT I—BREACH OF COVENANT
56. Defendants incorporate Paragraphs I through 55 above, as if set forth herein at length.
57. Denied. The Declaration is a written document that speaks for itself. Defendants deny
any characterization or interpretation of this document. Strict proof thereof is demanded
at trial.
58. Denied. This paragraph is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
59. Denied. This paragraph is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied. By
way of further response, Plaintiffs have failed to provide any invoices for the alleged
costs to repair the rural residential lane and cul-de-sac. Plaintiffs have failed to provide
an explanation of the work allegedly performed on the rural residential lane and cul-de-
sac. Finally, Plaintiffs are not entitled to the costs of repair for the unilateral actions that
Plaintiffs have performed on their own property. Strict proof thereof is demanded at trial.
60. Denied. After a reasonable investigation, Defendants are without sufficient knowledge or
information to either admit or deny this averment. To the extent a response is required,
the averments of this paragraph are specifically denied. By way of further response,
Plaintiffs have failed to provide an invoice for the alleged cost of repairs and a
description of the work allegedly performed to Defendants. By way of further response,
the Lys requested an estimate of the work to be performed, which Plaintiffs never
produced prior to commencing any work. Strict proof thereof is demanded at trial.
61. Denied. The Declaration is a written document that speaks for itself. Defendants deny
any characterization or interpretation of this document.
62. Denied. The respective deeds into Plaintiffs and Defendants (attached as Exhibits "B",
"C", and "M to Plaintiffs' Complaint) are written documents that speak for themselves.
Defendants deny any characterization or interpretation of these documents. Strict proof
thereof is demanded at trial.
63. Denied. The averments of this paragraph are specifically denied. To the contrary,
Plaintiffs have unilaterally taken actions on their lot which has only benefitted Plaintiffs
and not the other parties. By way of further response, Plaintiffs unilateral actions of
extending their macadam driveway into the cul-de-sac and other actions taken on their
property, in violation of the Declaration and Final Subdivision Plan, have caused excess
rainwater to puddle on the cul-de-sac. Strict proof thereof is demanded at trial.
64. Denied. The averments of this paragraph are specifically denied. To the contrary,
Plaintiffs have unilaterally taken actions on their lot which has only benefitted Plaintiffs
and not the other parties. By way of further response, Plaintiffs unilateral actions of
extending their macadam driveway into the cul-de-sac and other actions taken on their
property, in violation of the Declaration and Final Subdivision Plan, have caused excess
rainwater to puddle on the cul-de-sac. Strict proof thereof is demanded at trial.
65. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
66. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
67. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
68. Denied. After a reasonable investigation, Defendants are without sufficient information
or knowledge to either admit or deny this averment. To the extent a response is required,
the averments in this paragraph are specifically denied. Strict proof thereof is demanded
at trial.
69. Denied. After a reasonable investigation, Defendants are without sufficient information
or knowledge to either admit or deny this averment. To the extent a response is required,
the averments in this paragraph are specifically denied. Strict proof thereof is demanded
at trial.
70. Denied. The averments of this paragraph are a conclusion of law to which no response is
required. To the extent a response is required, the averments of this paragraph are
specifically denied. Strict proof thereof is demanded at trial.
71. Denied. The averments of this paragraph are specifically denied. By way of further
response, Plaintiffs have undertaken unilateral actions on their property, the rural
residential lane and cul-de-sac, which have caused excess rainwater to puddle on the cul-
de-sac. Strict proof thereof is demanded at trial.
72. Denied. After a reasonable investigation, Defendants are without sufficient information
or knowledge to either admit or deny this averment. To the extent a response is required,
the averments in this paragraph are specifically denied. Strict proof thereof is demanded
at trial.
WHEREFORE, Defendants, Tam L. Ly, Cassandra L. Ly, Erik S. Olsen, and Cynthia
M. Olsen respectfully requests that this Honorable Court grant judgment in their favor and
against Plaintiffs together with attorney's fees and such other relief that this Honorable Court
deems just and appropriate.
COUNT II—BREACH OF CONTRACT
73. Defendants incorporate Paragraphs 1 through 72 above, as if set forth herein at length.
74. Denied. The Declaration is a written document that speaks for itself. This averment is a
conclusion of law to which no response is required.
75. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
76. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
77. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
78. Denied. The Declaration is a written document that speaks for itself. Defendants deny
any characterization or interpretation of this document. To the extent a response is
required, the averments of this paragraph are specifically denied. Strict proof thereof is
demanded at trial.
79. Denied. The respective Deeds into Plaintiffs and Defendants (Exhibits `B", "C", and
"D" to Plaintiffs' Complaint) are written documents that speak for themselves. To the
extent a response is required,the averments of this paragraph are specifically denied.
80. Denied. After a reasonable investigation, Defendants are without sufficient information
or knowledge to either admit or deny this averment. To the extent a response is required,
the averments in this paragraph are specifically denied. Strict proof thereof is demanded
at trial.
81. Denied. The averments of this paragraph are specifically denied. By way of further
response, Plaintiffs have undertaken unilateral actions, including but not limited to the
extension of their macadam driveway into the cul-de-sac in violation of the Final
Subdivision, which have caused excess rainwater to puddle in the cul-de-sac. By way of
further response, Plaintiffs have shown an unwillingness to work with Defendants with
regards to the rural residential lane and cul-de-sac. Strict proof thereof is demanded at
trial.
82. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
83. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
84. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
85. Denied. After a reasonable investigation, Defendants are without sufficient information
or knowledge to either admit or deny this averment. To the extent a response is required,
the averments in this paragraph are specifically denied. Strict proof thereof is demanded
at trial.
86. Denied. After a reasonable investigation, Defendants are without sufficient information
or knowledge to either admit or deny this averment. To the extent a response is required,
the averments in this paragraph are specifically denied. Strict proof thereof is demanded
at trial.
87. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments in this paragraph are specifically denied.
Strict proof thereof is demanded at trial.
88. Denied. The averments in this paragraph are specifically denied. To the contrary,
Defendants are willing to comply with the Declaration and Final Subdivision Plan. By
way of further response, Plaintiffs unilaterally took actions on their property, the rural
residential lane, and cul-de-sac, which said unilateral actions include but not limited to
the extension of Plaintiffs' macadam driveway into the cul-de-sac in violation of the
Final Subdivision Plan, has caused excess rainwater to puddle on the cul-de-sac. By way
of further response, Defendants are unwilling to pay to correct conditions created solely
by the actions of Plaintiffs on their own property and to fix the actions taken by Plaintiffs
which have caused excess rainwater to puddle on the cul-de-sac. Strict proof thereof is
demanded at trial.
89. Denied. After a reasonable investigation, Defendants are without sufficient knowledge or
information to either admit or deny the averments in this paragraph. To the extent a
response is required, the averments of this paragraph are specifically denied. Strict proof
thereof is demanded at trial.
WHEREFORE, Defendants, Tam L. Ly, Cassandra L. Ly, Erik S. Olsen, and Cynthia
M. Olsen respectfully requests that this Honorable Court grant judgment in their favor and
against Plaintiffs together with attorney's fees and such other relief that this Honorable Court
deems just and appropriate.
COUNT III—UNJUST ENRICHMENT
90. Defendants incorporate paragraphs 1 through 89 set forth above, as if set forth herein at
length.
91. Denied. The averments of this paragraph are a conclusion of law to which no response is
required. To the extent a response is required, the averments of this paragraph are
specifically denied. Strict proof thereof demanded at trial.
92. Denied. It is specifically denied that Defendants received a benefit from Plaintiffs'
attempts to repair and remedy of the allegedly dangerous and potentially destructive
conditions of the rural residential lane. To the contrary, Plaintiffs' actions on their own
property and on the rural residential lane and cul-de-sac with their own equipment and
without hiring the appropriate professionals qualified performed such work conferred no
benefit on Defendants but rather caused excess rainwater to puddle on the cul-de-sac.
Strict proof thereof is demanded at trial.
93. Denied. The averments of this paragraph are specifically denied. To the contrary,
Plaintiffs' actions on their own property, the rural residential lane, and cul-de-sac
conferred no benefit on Defendants but rather caused excess rainwater to puddle on the
cul-de-sac. Strict proof thereof is demanded at trial.
94. Denied. This averment is a conclusion of law to which no response is required. To the
extent a response is required, the averments of this paragraph are specifically denied.
WHEREFORE, Defendants, Tam L. Ly, Cassandra L. Ly, Erik S. Olsen, and Cynthia
M. Olsen respectfully requests that this Honorable Court grant judgment in their favor and
against Plaintiffs together with attorney's fees and such other relief that this Honorable Court
deems just and appropriate.
NEW MATTER
95. Defendants incorporate Paragraphs 1 through 94 above, as if set forth herein at length.
96. The respective properties of Plaintiffs and Defendants are derived from the same grantor,
Harold S. Swarner and Debra S. Swarner (hereinafter collectively referred to as
"Developers").
97. The Developers subdivided their property in accordance with the Final Subdivision Plan
for Harold S. Swarner and Debra S. Swarner dated August 25, 2005 (hereinafter "Final
Subdivision Plan").
98. As set forth in the Final Subdivision Plan, the Developers constructed the Rural
Residential Lane, infiltration trenches and other stormwater management facilities.
99. The Developers prepared and filed the Declaration to govern the duties, rights and
obligations of subsequent owners of Lot 1, Lot 2 and Lot 3 of the Final Subdivision Plan.
100. Plaintiffs are the owners of Lot 2.
101. Defendants, Tam L. and Cassandra L. Ly, are the owners of Lot 3.
102. Defendants, Erik S. and.Cynthia M. Olsen, are the owners of Lot 1.
103. Plaintiffs hired Hoffman Custom Homes, Inc. to construct their residence.
104. Defendants, Tam L. and Cassandra L. Ly, hired Roland Builder, Inc. to construct their
residence.
105. Defendants, Erik S. and Cynthia M. Olsen, hired Hoffinan Custom Homes, Inc. to
construct their residence.
106. When constructing their residence, Defendants, Tam L. and Cassandra L. Ly, and Roland
Builder, Inc. did not modify, alter, or interfere with the infiltration trenches and other
stormwater facilities installed by the Developers.
107. To the best of their knowledge, Defendants, Tam L. and Cassandra L. Ly, and Roland
Builder, Inc. acted in accordance with the Final Subdivision Plan in the construction of
the Lys' residence.
108. When constructing their residence, Defendants, Erik S. Olsen and Cynthia M. Olsen, and
Hoffman Custom Homes, Inc. did not modify, alter, or interfere with the infiltration
trenches and other stormwater facilities installed by the Developers.
109. To the best of their knowledge, Defendants, Erik S. Olsen and Cynthia M. Olsen, and
Hoffinan Custom Homes, Inc. acted in accordance with the Final Subdivision Plan in the
construction of their residence.
110. Subsequent to the construction of their respective residences, Defendants have not taken
any actions to modify, alter, or interfere with the infiltration trenches and other
stormwater facilities installed by the Developers.
111. As set forth on the Final Subdivision Plan, a portion of the Plaintiffs property is located
in a saucer like area, where water, in its natural course, flows downhill onto Plaintiffs'
property.
112. The location of Plaintiffs' property is located within the natural course and/or flow of
surface water and therefore, Defendants are not liable for such damages to Plaintiffs'
property or to take remedial actions to prohibit water from flowing onto Plaintiffs'
property.
113. Defendants assert the defense of common enemy.
114. As depicted on the photograph attached hereto as Exhibit "D-1", Plaintiffs have taken
significant actions on their property to artificially divert the flow of water from its natural
course and now stormwater puddles on the cul-de-sac.
115. As depicted on Exhibit "D-2", Plaintiffs have used their own heavy equipment, including
a backloader and bobcat, which has caused significant tracks to develop on Plaintiffs'
property and is now the location that water flows on Plaintiffs' property.
116. Plaintiffs, as opposed to hiring professional excavators or individuals qualified to perform
excavating, have performed their own excavating work on their property, the infiltration
trenches, rural residential lane and the cul-de-sac.
117. In violation of the Final Subdivision Plan, Plaintiffs have dramatically modified the grade
on their property after or during the construction of their residence to modify and alter the
Steep Slope Conservation District located on Plaintiffs' property.
118. In violation of the Declaration and Final Subdivision Plan, Plaintiffs have extended their
driveway by approximately twenty-five (25') feet into the Rural Residential Lane. See
Exhibit"D-1"
119. Plaintiffs' actions of extending the driveway into the rural residential lane constitutes a
trespass on the rights of Defendants and has the effect of artificially diverting water into
the cul-de-sac. See Exhibit"D-1".
120. Plaintiffs refused to meet with Defendants at times convenient to all parties to discuss the
rural residential lane and cul-de-sac.
121. Plaintiffs and Defendants, Tam L. and Cassandra L. Ly and Cynthia Olsen, met with
Greg Lebo of Brehm-Lebo Engineering.
122. Greg Lebo recommended that two (2") to three (3") inches of stone be scraped up from a
trench to assess whether and how far any silt and debris had accumulated within the
trench to alleviate the alleged drainage issues complained of Plaintiffs.
123. Plaintiffs unilaterally used their own backloader and bobcat to remove approximately two
(2') to three (3') feet from the trenches adjacent to the Ewing property and a portion of
the trench adjacent to the Olsen property.
124. Defendants did not consent to Plaintiffs performing said excavation work on the trenches
adjacent to the Ewing property or the trench adjacent to the Olsen property, the rural
residential lane and cul-de-sac and therefore, Defendants are without any knowledge of
the extent of the work performed, the costs incurred, and whether the alleged work
benefited or harmed the rural residential lane and cul-de-sac.
125. Upon information and belief, the work allegedly performed by Plaintiffs was not
necessary for the maintenance of the rural residential lane and cul-de-sac as set forth in
the Declaration.
126. Plaintiffs performed this work on their own and refused to hire a professional qualified to
perform such work.
127. Defendants assert the defense of unclean hands.
128. On or about April 8, 2013, Plaintiffs and Defendants met with Brian O'Neill, the
engineer from South Middleton Township, to discuss the alleged stormwater drainage
issue.
129. Defendants, Erik S. Olsen and Cynthia M. Olsen, contacted Quality Lawn Works, Inc. to
provide an estimate on the work as suggested by Mr. O'Neill as well as to ensure the
grade of the cul-de-sac is in accordance with the original plans.
130. Defendants are willing to assist in repairs of the rural residential lane and cul-de-sac;
provided however, that the work performed is necessary to maintain the rural residential
lane and cul-de-sac in accordance to the Declaration and that such work is performed by
a professional qualified to perform such work.
131. Plaintiffs are only interested in performing the work by themselves without hiring
professionals and on their own terms.
132. Upon information and belief, Plaintiffs performed the work on their own property, the
residential lane and cul-de-sac in a negligent manner, as they do not have the expertise to
perform the work in a professional manner.
133. Upon information and belief, the work performed by Plaintiffs was solely for their benefit
and not for the purpose of maintaining the rural residential lane and cul-de-sac in
accordance with the Declaration.
134. Despite requests, Plaintiffs have failed to provide any evidence, including invoices and/or
other statements, outlining costs and expenses incurred on the rural residential lane and a
description of the work alleged performed to maintain the rural residential lane and cul-
de-sac.
135. Based on the vague allegations in Plaintiffs' Complaint, it appears that Plaintiffs are now
attempting to recover the amount expended by them to modify/complete their own
driveway, which is contrary to the Declaration, Final Subdivision Plan, and the laws of
the Commonwealth of Pennsylvania.
136. To the extent that Plaintiffs claims are based on negligence, Defendants assert the
affirmative defense of statute of limitations, as both Defendants finished the construction
of their residences more than two (2) years prior to the filing of this lawsuit.
137. In addition to the defense of statute of limitations, common enemy and unclean hands,\
Defendants raise the affirmative defenses of consent, privilege and justification.
WHEREFORE, Defendants, Tam L. Ly, Cassandra L. Ly, Erik S. Olsen, and Cynthia
M. Olsen respectfully requests that this Honorable Court grant judgment in their favor and
against Plaintiffs together with attorney's fees and such other relief that this Honorable Court
deems just and appropriate.
COUNTERCLAIM
COUNT I -NEGLIGENCE
ALL DEFENDANTS V. PLAINTIFFS
138. Defendants incorporate Paragraphs I through 137 above, as if set forth herein at length.
139. Plaintiffs unilaterally performed work on their property and the rural residential lane.
140. The work performed by Plaintiffs was done by them individually, and they failed to hire a
professional.
141. Despite owning a backloader and bobcat, Plaintiffs do not have the expertise and are
unequipped to perform the work they attempted to perform on the rural residential lane
and on their property.
142. Upon information and belief, the work performed on the trenches adjacent to the Ewing
property and the Olsen property was contrary to the recommendations of Greg Lebo, the
professional hired by Plaintiffs to analyze the alleged stormwater drainage issues.
143. Plaintiffs, for their own benefit, constructed and extended their, macadam driveway
approximately twenty-five (25') feet into the cul-de-sac in violation of the Final
Subdivision Plan, Declaration, and their Deed. See Exhibit"D-1".
144. Plaintiffs installed a silt fence along the infiltration trench adjacent to their property,
which has the effect of artificially diverting excess stormwater from flowing on its
natural course and now puddles in the cul-de-sac. See Exhibit"D-1".
145. Upon information and belief, the extension of Plaintiffs' driveway into the cul-de-sac was
not necessary for the maintenance of the cul-de-sac.
146. Plaintiffs performed all of this work negligently by failing to hire a licensed professional,
failing to perform the work recommended by a licensed professional and failing to
perform the work of a quality equal to industry standards.
147. Due to this negligent work, damage has occurred to the rural residential lane.
148. Plaintiffs owed a duty to Defendants to perform work on their property, the rural
residential lane and the cul-de-sac in accordance with the Final Subdivision Plan and
Declaration.
149. Plaintiffs breached this duty by unilaterally performing work in a negligent manner on
their property, the rural residential lane, and the cul-de-sac causing excess rainwater to
puddle on the cul-de-sac.
150. Upon information and belief, in order to prohibit the puddle of excess rainwater in the
cul-de-sac, the extension of Plaintiffs' driveway into the cul-de-sac, which was installed
and constructed in violation of the Declaration and Final Subdivision Plan, must be
removed.
151. In order to remedy the damages caused by Plaintiffs' negligence, Defendants demand that
Plaintiffs be solely responsible for the repairs that need to be completed on the rural
residential lane with such repairs being performed by a contractor of Defendants choice
including that the driveway extension of the twenty-five(25')be removed..
WHEREFORE, Defendants, Tam L. Ly, Cassandra L. Ly, Erik S. Olsen, and Cynthia
A Olsen respectfully requests that this Honorable Court order Plaintiffs to remove the portion of
Plaintiffs' macadam driveway extending into the cul-de-sac, and the silt fence and to grant
judgment in an amount exceeding $12,000.00 in their favor and against Plaintiffs together with
attorney's fees and such other relief that this Honorable Court deems just and appropriate.
COUNT II—BREACH OF COVENANT/CONTRACT
ALL DEFENDANTS V. PLAINTIFFS
152. Defendants incorporate Paragraphs 1 through 151 above, as if set forth herein at length.
153. The Declaration attached to Plaintiffs' Complaint clearly provides that Plaintiffs and
Defendants are equally responsible for both the responsibility and the costs relating to the
necessary maintenance, repair and improvement of the drainage facilities at the rural
residential lane.
154. The Final Subdivision Plan, in Note 17(b), provides that the Owner agrees that no action
will be taken to block or impede the passage of water through said stormwater
management facilities and will place no structure, building, or fence nor plant any trees or
shrubs which would impede the use of said facilities for its intended purpose, without
prior approval from the Township.
155. The Final Subdivision Plan, in Note 18(a), provides that each rural residential lane shall
be improved to a mud free or otherwise permanently passable condition using a minimum
of eight (8") of crush stones.
156. The Final Subdivision Plan, in Note 18(b), provides that"no improvements other than the
cartway and roadside gutters/gravel infiltration trenches shall be constructed within the
right-of-way.
157. The Deed into Plaintiffs attached as Exhibit `B" to Plaintiffs' Complaint provides as
follows:
a. "The Grantees, their heirs and assigns, agree that no action will be taken to block
or impede the passage of water though sold (sic) storm water management
facilities and will place no structure, building or fence nor plant any trees or
shrubs which would impede the use of the said facilities for their intended
purposes, without prior approval from the Township." Paragraph 3(b) of
Plaintiffs' Deed. (emphasis added).
b. "Such rural residential lane shall be improved to a mud free or other permanently
passable condition using a minimum of eight (8") of crushed stone." Paragraph
4(a) of Plaintiffs' Deed.
C. "No improvements other than the cartway and roadside gutters/gravel infiltration
trenches shall be constructed within the right-of-way." Paragraph 4(b) of
Plaintiffs' Deed.
158. Despite these covenants in their Deed and in the Final Subdivision Plan, Plaintiffs
improved and extended their macadam driveway by approximately twenty-five (25') feet
into the rural residential lane. See Exhibit"D-111
.
159. The improvement and extension of Plaintiffs' macadam driveway into the rural
residential lane is a breach of the covenants contained in Plaintiffs' deed and the Final
Subdivision Plan.
160. The effect of the improvement and extension of Plaintiffs' macadam driveway is to
artificially divert storm water unto the cul-de-sac.
161. Further, Plaintiffs installed a silt fence along the infiltration trench adjacent to the Ewing
property and their property. See Exhibit"D-1".
162. The installation of the silt fence is a breach of the covenants of contained in Plaintiffs'
deed and the Final Subdivision Plan.
163. The effect of the silt fence is to prohibit stormwater from flowing in its natural course,
which would be to flow and drain onto Plaintiffs' Property. See Exhibit "D-1". The
original drainage areas are depicted as the areas without grass on Exhibit"D-2".
164. Plaintiffs' unilateral actions of improving and extending their macadam driveway into the
rural residential lane and installing a silt fence will continually artificially divert
stormwater into the rural residential lane until Plaintiffs remove their macadam driveway
and silt fence.
165. In order to remedy the conditions already caused by Plaintiffs' unilateral actions,
Defendants will incur expenses to remedy the damage caused by Plaintiffs.
WHEREFORE, Defendants, Tam L. Ly, Cassandra L. Ly, Erik S. Olsen, and Cynthia
M. Olsen respectfully requests that this Honorable Court order Plaintiffs to remove their silt
fence and the portion of Plaintiffs' macadam driveway extending into the cul-de-sac and to grant
judgment in an amount exceeding $12,000.00 in their favor and against Plaintiffs together with
attorney's fees and such other relief that this Honorable Court deems just and appropriate.
COUNT III—TRESPASS
ALL DEFENDANTS V. PLAINTIFFS
166. Defendants incorporate Paragraphs 1 through 165 above, as if set forth herein at length.
167. The Declaration states that "the owners of lots 1, 2, and 3 shall retain fee simple
ownership of said lane. This lane shall remain in private ownership in perpetuity, and
shall never be offered for dedication."
168. As set forth in the parties' respective deeds and the Final Subdivision Plan, the rural
residential lane shall be improved to a mud free or otherwise permanently passable
condition using a minimum of eight(8")of crush stones.
169. The Developers constructed the rural residential lane with crushed stones in accordance
with the Final Subdivision Plan.
170. On or about the Fall of 2012, Plaintiffs, without consulting with Defendants, unilaterally
improved and extended their macadam driveway into the rural residential lane. See
Exhibit"D-l".
171. Plaintiffs' unilateral actions constitute a permanent trespass on the fee simple ownership
rights of Defendants.
172. Plaintiffs improved and extended their driveway without the privilege to do so and the
authorization of Defendants.
173. Plaintiffs' unilateral actions have permanently changed the rural residential lane.
174. Plaintiffs' unilateral actions constitute a permanent trespass for which they should be
ordered to remove the portion of their macadam driveway entering into the rural
residential lane.
WHEREFORE, Defendants, Tam L. Ly, Cassandra L. Ly, Erik S. Olsen, and Cynthia
M. Olsen respectfully requests that this Honorable Court order Plaintiffs to remove their silt
fence and the portion of Plaintiffs' macadam driveway extending into the cul-de-sac together
with attorney's fees and such other relief that this Honorable Court deems just and appropriate.
COUNT IV—CONTINUING TRESPASS
ALL DEFENDANTS V. PLAINTIFFS
175. Defendants incorporate Paragraphs 1 through 174 above, as if set forth herein at length.
176. As a result of Plaintiffs' actions of improving and extending their macadam driveway
into the rural residential lane and installing a silt fence along their property, Plaintiffs
have artificially diverted stormwater onto the rural residential lane.
177. Each time there is a significant rainfall, the effect of Plaintiffs' negligent improvements
as stated in Paragraph 177 above is that excess rainwater now puddles on the cul-de-sac.
See Exhibit"D-1".
178. Unless Plaintiffs are required to remove the silt fence and the portion of their macadam
driveway located in the rural residential lane, rainwater will continue to be artificially
diverted onto the rural residential lane and cul-de-sac.
179. Plaintiffs, through their various actions on their property, the rural residential lane and
cul-de-sac, have artificially diverted stormwater away from its natural course and onto
the rural residential lane and cul-de-sac; therefore, Plaintiffs' actions constitute a
continuing trespass.
180. In order to remedy the actions of Plaintiffs, Plaintiffs should bear the sole cost and
responsibility of such remedial work.
WHEREFORE, Defendants, Tam L. Ly, Cassandra L. Ly, Erik S. Olsen, and Cynthia
M. Olsen respectfully requests that this Honorable Court Order Plaintiffs to remove their silt
fence and the portion of Plaintiffs' macadam driveway extending into the cul-de-sac and to grant
judgment in an amount exceeding $12,000.00 in their favor and against Plaintiffs together with
attorney's fees and such other relief that this Honorable Court deems just and appropriate.
Respectfully submitted,
SALZMANN HUGHES, P.C.
By:
J s D. Hughes, Esquire
torney I.D. No. 58884
Jason E. Kelso, Esquire
Attorney I.D. No. 209107
354 Alexander Spring Road, Suite 1
Carlisle, PA 17015
(717) 249-6333
Date: July 10, 2013 Attorney for Defendants
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VERIFICATION
We have read the statements made in this document and they are true and correct to the
best of our knowledge,information and belief We understand that false statements herein made
are subject to the penalties of 18 Pa.C.S.A. § 4904,relating to unworn falsification to
authorities. ArikS. Olsen
Z7yntWa M. Olsen
Date:
VERIFICATION
We have read the statements made in this document and they are true and correct to the
best of our knowledge,information and belief. We understand that false statements herein made
are subject to the penalties of 18 Pa.C.S.A. § 4944,relating to unsworn falsification to
authorities.
Tam L. Ly
6w�
Cassandra L. Ly
Date: ��� l3
CERTIFICATE OF SERVICE
1, Jason E. Kelso, Esquire, hereby certify that on this I 01h day of July 2013, 1 have served
the foregoing Defendant's Answer to Complaint with New Matter and Counterclaim by
depositing the same in the United States Mail,by First Class Mail, postage prepaid, addressed as
follows:
Paul R. Van Fleet, Esq.
Capozzi Adler, P.C.
P.O. Box 5866
Harrisburg,PA 17110
Attorneys for Plaintiffs
Kelso
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STEVEN A. EWING AND JANE B. EWING, NO.' S Q.oa 1_7;7,
`
(I) r�
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Plaintiffs : r'
vs. • Complaint—Civil Act*:f ?;
TAM L. LY, CASSANDRA L. LY, ERIK :
S. OLSEN, AND CYNTHIA M. OLSEN
Defendants •
PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM
NOW COME Plaintiffs Steven A. Ewing and Jane B. Ewing, by and through their
counsel, Capozzi Adler, P.C., and files the following Answer to Defendants' New Matter and
Counterclaim, and in support thereof, hereby avers as follows:
NEW MATTER
95. Admitted in part and denied in part. Admitted to the extent that Defendants incorporate
Paragraphs 1-94 into the body of the New Matter. All other implications arising
therefrom are denied.
96. Admitted.
97. Admitted.
98. Denied. Plaintiffs deny Paragraph 98 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, the Developers did not construct the
Rural Residential Lane, the infiltration trenches, and other stormwater management
facilities. Such work was hired out to Peter Briggs, a local farmer, and he performed the
above mentioned construction.
A •
• 4
99. Admitted.
100. Admitted.
101. Admitted.
102. Admitted.
103. Admitted.
104. Admitted.
105. Admitted.
106. Denied. Plaintiffs deny Paragraph 106 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, Defendants Tam L. and Cassandra L.
Ly (the "Lys") willfully altered their driveway entrance location, the elevation height of
the infiltration trenches (the "Trenches"), and the elevation height of the embankments
surrounding the cul-de-sac of the Rural Residential Lane (the "Embankments") during
and after the construction phase of their residence, in violation of the Final Subdivision
Plan. The Lys failed to consult with the other lot owners in the Final Subdivision Plan
before taking such action. In spite of concerns communicated to the Lys by Plaintiffs,the
Lys failed to take appropriate actions to preserve the integrity of the Rural Residential
Lane, the Trenches and the Embankments. As a result of the Lys' failure to take such
precautions and their violation of the Final Subdivision Plan, an unreasonable amount of
dirt, debris, and associated runoff has accumulated in the Trenches, worn away the
Embankments, and eroded the Rural Residential Lane extensively. As a result of the
accumulated dirt, debris, and runoff described above, the stormwater management
facilities contemplated by the Final Subdivision Plan are no longer functional and present
a grave and ongoing threat to the Rural Residential Lane and Plaintiffs' property.
.
107. Denied. For the reasons set forth in Paragraph 106 of Plaintiff's Answer to New Matter
and Counterclaim, Plaintiffs deny Paragraph 107 of Defendants' New Matter and demand
strict proof thereof at trial. By way of further response, Plaintiffs deny that the Lys and
Roland Builder, Inc., complied with the Final Subdivision Plan and deny that they were
unaware of the requirements thereof.
108. Denied. Plaintiffs deny Paragraph 106 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, Defendants Erik S. Olsen and Cynthia
M. Olsen (the "Olsens") willfully altered their driveway elevation, the elevation height of
the Trenches, and the elevation height of the embankments surrounding the cul-de-sac of
the Rural Residential Lane (the "Embankments") during and after the construction phase
of their residence in violation of the Final Subdivision Plan. The Olsens failed to consult
with the other lot owners in the Final Subdivision Plan before taking such action. In spite
of concerns communicated to the Olsens by Plaintiffs, the Olsens failed to take
appropriate actions to preserve the integrity of the Rural Residential Lane, the Trenches
and the Embankments. As a result of the Olsens' failure to take such precautions, an
unreasonable amount of dirt, debris, and associated runoff has accumulated in the
Trenches, worn away the Embankments, and eroded the Rural Residential Lane
extensively. As a result of the accumulated dirt, debris, and runoff described above, the
stormwater management facilities contemplated by the Final Subdivision Plan are no
longer functional and present a grave and ongoing threat to the Rural Residential Lane
and Plaintiffs' property.
109. Denied. For the reasons set forth in Paragraph 108 of Plaintiff's Answer to New Matter
and Counterclaim, Plaintiffs deny Paragraph 109 of Defendants' New Matter and demand
strict proof thereof at trial. By way of further response, Plaintiffs deny that the Olsens
and Hoffman Custom Homes, Inc., complied with the Final Subdivision Plan and deny
that they were unaware of the requirements thereof
110. Denied. Plaintiffs deny Paragraph 110 of Defendants' New Matter and Counterclaim and
demand strict proof thereof at trial. By way of further response, the Defendants have
failed to remedy ary of the damage that was caused by their construction. Defendants
continue to allow the conditions of the Rural Residential Lane to persist, despite their
obligations under the Declaration and the deeds conveying their respective properties.
Defendants have failed to remedy the ongoing violations of the Rural Residential Lane
caused not only by their construction, but by their continuing neglect of the stormwater
management facilities, including the Trenches and the Embankments.
111. Admitted in part and denied in part. Plaintiffs admit Paragraph 111 of Defendants' New
Matter only to the extent that the Plaintiffs; property is located downhill from the
Defendants' properties. Plaintiff denies Paragraph 111 of Defendants' New Matter to the
extent that it implies that this downhill grade is the cause of erosion in the Rural
Residential Lane and Plaintiffs' property. By way of further response, Plaintiffs assert
that if the Rural Residential Lane was maintained in its proper condition by the
Defendants, such water flow would be substantially impeded and the Rural Residential
Lane and the Plaintiffs' property would retain their integrity.
112. Denied. For the reasons set forth in Paragraph 106, 108, and 111 of this Answer to
Defendants' New Matter and Counterclaim, Plaintiffs deny Paragraph 112 of Defendants'
New Matter and demand strict proof thereof at trial.
113. Denied. Paragraph 113 of Defendants' New Matter contains statements of law to which
Plaintiffs are not required to respond. To the extent that Plaintiffs are required to answer,
Plaintiffs deny Paragraph 113 of Defendants' New Matter and Counterclaim and demand
strict proof thereof at trial.
114. Denied. Plaintiffs deny Paragraph 114 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, any action that Plaintiffs have taken in
regard to their property has been undertaken in strict compliance with the Final
Subdivision Plan and with all possible precautions to preserve the integrity of the Rural
Residential Lane.
115. Admitted in part and denied in part. Plaintiffs admit Paragraph 115 of Defendants' New
Matter only to the extent that Plaintiffs used their own equipment to remedy hazardous
conditions on their property and the Rural Residential Lane. Plaintiffs deny that such
activities were undertaken unilaterally and further deny that such activities have caused
any damage to the Rural Residential Lane or the Plaintiffs' property, including but not
limited to causing any significant tracks to develop into which water might pool.
116. Denied. Plaintiffs deny Paragraph 116 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, the Plaintiffs have hired and consulted
several experts in land engineering and paving in undertaking work on the Plaintiffs'
property. Plaintiffs consulted Brehm-Lebo Engineering Inc. and had them mark off the
heights required by the Final Subdivision Plan before commencing any work. Plaintiffs
also retained the opinion of David Palmer of Pennsy Supply in their operations, who has
over 24 years of experience in all phases of highway, parking lot, and rural road
construction and maintenance.
117. Denied. Plaintiffs deny Paragraph 117 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, Plaintiffs have at all times complied
with the specifications of the Final Subdivision Plan in all phases of the construction of
their residence.
118. Denied. Plaintiffs deny Paragraph 118 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, Plaintiffs deny that their driveway
extends into the Rural Residential Lane and that such driveway alters any specifications
of the Final Subdivision Plan. The part of the driveway that Defendants claim to be
extending into the cul-de-sac of the Rural Residential Lane is in fact of the same material
and consistent with the specifications of the Rural Residential Lane.
119. Denied. Plaintiffs deny Paragraph 118 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, Plaintiffs deny that their driveway
extends into the Rural Residential Lane and that such driveway deviates from any
specifications of the Final Subdivision Plan.
120. Denied. Paragraph 120 of Defendants' New Matter contains statements of law to which
Plaintiffs are not required to respond. To the extent that Plaintiffs are required to
respond, Plaintiffs deny Paragraph 120 of Defendants' New Matter and demand strict
proof thereof at trial.
121. Admitted in part and denied in part. Plaintiffs admit Paragraph 121 of Defendants' New
Matter only to the extent that a meeting occurred between Plaintiffs, the Lys, and Greg
Lebo of Brehm-Lebo Engineering, Inc. Plaintiffs deny the remainder of Paragraph 121
and specifically deny that Cynthia Olsen was present at such meeting.
122. Admitted.
123. Admitted in part and denied in part. Plaintiffs admit Paragraph 123 of Defendant's New
Matter only to the extent that Plaintiffs used their own equipment to remove 2' to 3' feet
from the Trenches at their property and adjacent to the Olsens' property. Plaintiffs deny
the remainder of Paragraph 123 and demand strict proof thereof at trial. By way of
further response, Plaintiffs deny that such activity was taken unilaterally; in fact, such
work was taken with the consultation of licensed professionals and in strict compliance
with the recommendations of Greg Lebo and the Final Subdivision Plan.
124. Admitted in part and denied in part. Paragraph 124 of Defendants' New Matter contains
statements of law to which no response is required. To the extent that Plaintiffs are
required to respond, Plaintiffs admit Paragraph 124 only to the extent that performed said
work on the Trenches with the consultation and advice of trained professionals in such
projects. Plaintiffs deny the remainder of Paragraph 124 of Defendants' New Matter and
demand strict proof thereof at trial. By way of further response, Plaintiffs deny that
Defendants are without knowledge as to the extent of the work undertaken, as they
observed such repairs from their properties. Plaintiffs also deny that any consent is
required from Defendants under the Declaration, the Final Subdivision Plan, or any other
document relating to the Plaintiffs' and Defendants' properties to undertake measures
required to protect the Rural Residential Lane and Plaintiffs' property.
125. Denied. Plaintiffs deny Paragraph 125 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, Plaintiffs assert that the repair of the
Rural Residential Lane undertaken by Plaintiffs was necessary for the integrity of the
Rural Residential Lane, as evidenced by the extensive damage already incurred by excess
runoff and debris accumulating in the stormwater management system as a result of
Defendants' activities.
126. Denied. For the reasons set forth in Paragraph 116 of this Answer to Defendants' New
Matter and Counterclaim, Plaintiffs deny Paragraph 126 of Defendants' New Matter and
demand strict proof thereof at trial.
127. Denied. Paragraph 127 of Defendants' New Matter contains statements of law to which
Plaintiffs are not required to respond. To the extent that Plaintiffs are required to
respond, Plaintiffs deny Paragraph 127 of Defendants' New Matter and demand strict
proof thereof at trial.
128. Admitted in part and denied in part. Plaintiffs admit Paragraph 128 of Defendants' New
Matter only to the extent that a meeting took place between Brian O'Neill, Plaintiffs and
Defendants. Plaintiffs deny the remainder of Paragraph 128 and demand strict proof
thereof. By way of further response, the meeting between Brian O'Neill, Plaintiffs, and
Defendants did not address any of the problems present at the Rural Residential Lane.
129. Denied. Plaintiffs deny Paragraph 129 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, Plaintiffs deny that any invoice for
work obtained by the Olsens constitutes work sufficient to restore the Rural Residential
Lane to the specifications of the Final Subdivision Plan.
130. Denied. Plaintiffs deny Paragraph 130 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, the Lys have indicated to the Plaintiffs
that it was not in their "time frame" to have repairs or maintenance begin as they wanted
to finish their basement. The Defendants have never offered the Plaintiffs any assistance
or compensation towards the repair of the Rural Residential Lane and continue to refuse
to do so.
131. Denied. Plaintiffs deny Paragraph 131 of Defendants' New Matter and demand strict
proof thereof at trial.
132. Denied. For the reasons set forth in Paragraph 116 of this Answer to Defendants' New
Matter and Counterclaim, Plaintiffs deny Paragraph 132 of Defendants' New Matter and
demand strict proof thereof at trial.
133. Denied. Plaintiffs deny Paragraph 133 of Defendants' New Matter and demand strict
proof thereof at trial.
134. Denied. Plaintiffs deny Paragraph 134 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, Plaintiffs have never been asked by
Defendants for any invoices or a description of the work performed by Plaintiffs.
135. Denied. Plaintiffs deny Paragraph 135 of Defendants' New Matter and demand strict
proof thereof at trial.
136. Denied. Paragraph 136 of Defendants' New Matter contains conclusions of law to which
no response is required. To the extent that Plaintiffs are required to respond, Plaintiffs
deny Paragraph 136 of Defendants' New Matter and demand strict proof thereof at trial.
137. Denied. Paragraph 137 of Defendants' New Matter contains conclusions of law to which
no response is required. To the extent that Plaintiffs are required to respond, Plaintiffs
deny Paragraph 137 of Defendants' New Matter and demand strict proof thereof at trial.
WHEREFORE, Plaintiffs Steven A. Ewing and Jane B. Ewing respectfully request that
this Court dismiss Defendants' Counterclaim and award Plaintiffs costs of suit, attorney's fees
and any other relief that this Court should find appropriate.
COUNTERCLAIM
COUNT I—NEGLIGENCE
ALL DEFENDANTS V. PLAINTIFFS
138. Admitted in part and denied in part. Plaintiffs admit Paragraph 138 of Defendants'
Counterclaim only to the extent that Defendants incorporate Paragraphs 1-137 into the
body of their Counterclaim. All other implications arising therefrom are denied.
139. Denied. Plaintiffs deny Paragraph 139 of Defendants' Counterclaim and demand strict
proof thereof at trial. By way of further response, Plaintiffs retained the advice and
counsel of professional engineers and pavement experts in performing the work on the
Rural Residential Lane. Furthermore, Plaintiffs conducted work only on the cul-de-sac of
the Rural Residential Lane, not the entirety of the structure.
140. Denied. Plaintiffs deny Paragraph 140 of Defendants' Counterclaim and demand strict
proof thereof at trial. By way of further response, the Plaintiffs have hired and consulted
several experts in land engineering and paving in undertaking work on the Plaintiffs'
property. Plaintiffs consulted Brehm-Lebo Engineering Inc. and had them mark off the
heights required by the Final Subdivision Plan before commencing any work. Plaintiffs
also retained the opinion of David Palmer of Pennsy Supply in their operations, who has
over 24 years of experience in all phases of highway, parking lot, and rural road
construction and maintenance.
141. Denied. Plaintiffs deny Paragraph 141 of Defendants' Counterclaim and demand strict
proof thereof at trial.
142. Denied. Plaintiffs deny Paragraph 142 of Defendants' Counterclaim and demand strict
proof thereof at trial. By way of further response, Plaintiffs followed Greg Lebo's
recommendations and repaired the stormwater management system to a functioning
condition.
143. Denied. Plaintiffs deny Paragraph 143 of Defendants' Counterclaim and demand strict
proof thereof at trial. Plaintiffs deny that their driveway extends into the Rural
Residential Lane and that such driveway alters any specifications of the Final Subdivision
Plan. The driveway is in fact of the same material and consistent with the grade
specifications of the Rural Residential Lane.
144. Admitted in part and denied in part. Plaintiffs admit Paragraph 144 of Defendants'
Counterclaim only to the extent that Defendants installed silt fences around the
infiltration trench surrounding their property. Plaintiffs deny the remainder of Paragraph
144 of Defendants' Counterclaim and demand strict proof thereof at trial. By way of
further response, Plaintiffs deny that the silt fences installed cause stormwater to puddle
in the cul-de-sac.
145. Denied. Plaintiffs deny Paragraph 145 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, Plaintiffs assert that the repair of the
Rural Residential Lane undertaken by Plaintiffs was necessary for the integrity of the
Rural Residential Lane, as evidenced by the extensive damage already incurred by excess
runoff and debris accumulating in the stormwater management system as a result of
Defendants' activities.
146. Denied. Paragraph 146 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, and for the
reasons set forth in Paragraph 140 and 142 of this Answer to Defendants' Counterclaim,
Plaintiffs deny Paragraph 146 of Defendants' Counterclaim and demand strict proof
thereof at trial.
147. Denied. Paragraph 147 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 147 of Defendants' Counterclaim and demand strict proof thereof at trial.
148. Denied. Paragraph 148 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 148 of Defendants' Counterclaim and demand strict proof thereof at trial.
149. Denied. Paragraph 149 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 149 of Defendants' Counterclaim and demand strict proof thereof at trial.
150. Denied. Paragraph 150 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 150 of Defendants' Counterclaim and demand strict proof thereof at trial.
151. Denied. Paragraph 151 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 151 of Defendants' Counterclaim and demand strict proof thereof at trial.
WHEREFORE, Plaintiffs Steven A. Ewing and Jane B. Ewing respectfully request that
this Court dismiss Count I of Defendants' Counterclaim and award Plaintiffs costs of suit,
attorney's fees and any other relief that this Court should find appropriate.
COUNT II—BREACH OF COVENANT/CONTRACT
ALL DEFENDANTS VS. PLAINTIFFS
152. Admitted in part and denied in part. Plaintiffs admit Paragraph 152 of Defendants'
Counterclaim only to the extent that Defendants incorporate Paragraphs 1-151 into the
body of their Counterclaim. All other implications arising therefrom are denied.
153. Denied. Plaintiffs deny Paragraph 153 of Defendants' New Matter and demand strict
proof thereof at trial. By way of further response, the Declaration is a document that
speaks for itself and any characterization thereof by Defendants is expressly denied.
154. Admitted. By way of further response, the Final Subdivision Plan is a document that
speaks for itself
155. Admitted. By way of further response, the Final Subdivision Plan is a document that
speaks for itself.
156. Admitted. By way of further response, the Final Subdivision Plan is a document that
speaks for itself
157. Admitted. By way of further response, the deed conveying the Plaintiffs' property to the
Plaintiffs is a document that speaks for itself.
158. Denied. Plaintiffs deny Paragraph 158 of Defendants' Counterclaim and demand strict
proof thereof at trial. Plaintiffs deny that their driveway extends into the Rural
Residential Lane and that such driveway alters any specifications of the Final Subdivision
Plan. The driveway is in fact of the same material and consistent with the grade
specifications of the Rural Residential Lane.
159. Denied. Paragraph 159 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 159 of Defendants' Counterclaim and demand strict proof thereof at trial.
160. Denied. Paragraph 160 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 160 of Defendants' Counterclaim and demand strict proof thereof at trial.
161. Admitted.
162. Denied. Paragraph 162 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 162 of Defendants' Counterclaim and demand strict proof thereof at trial.
163. Denied. Plaintiffs deny Paragraph 163 of Defendants' Counterclaim and demand strict
proof thereof at trial.
164. Denied. Plaintiffs deny Paragraph 164 of Defendants' Counterclaim and demand strict
proof thereof at trial.
165. Denied. Paragraph 165 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 165 of Defendants' Counterclaim and demand strict proof thereof at trial.
WHEREFORE, Plaintiffs Steven A. Ewing and Jane B. Ewing respectfully request that
this Court dismiss Count II of Defendants' Counterclaim and award Plaintiffs costs of suit,
attorney's fees and any other relief that this Court should find appropriate.
COUNT III—TRESPASS
ALL DEFENDANTS V. PLAINTIFFS
166. Admitted in part and denied in part. Plaintiffs admit Paragraph 166 of Defendants'
Counterclaim only to the extent that Defendants incorporate Paragraphs 1-165 into the
body of their Counterclaim. All other implications arising therefrom are denied.
167. Admitted. By way of further response, the Declaration is a document that speaks for
itself.
168. Admitted. By way of further response, the Final Subdivision Plan is a document that
speaks for itself.
169. Admitted. By way of further response, the documents cited by Defendants speak for
themselves.
170. Denied. Plaintiffs deny paragraph 170 of Defendants Counterclaim and demand strict
proof thereof at trial. By way of further response, Plaintiffs deny that their driveway
extends into the Rural Residential Lane and that such driveway alters any specifications
of the Final Subdivision Plan. The driveway is in fact of the same material and consistent
with the grade specifications of the Rural Residential Lane.
171. Denied. Paragraph 171 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 171 of Defendants' Counterclaim and demand strict proof thereof at trial.
172. Paragraph 172 of Defendants' Counterclaim contains conclusions of law that require no
response from Plaintiffs. To the extent that a response is required, Plaintiffs deny
Paragraph 172 of Defendants' Counterclaim and demand strict proof thereof at trial.
173. Paragraph 173 of Defendants' Counterclaim contains conclusions of law that require no
response from Plaintiffs. To the extent that a response is required, Plaintiffs deny
Paragraph 173 of Defendants' Counterclaim and demand strict proof thereof at trial.
174. Paragraph 174 of Defendants' Counterclaim contains conclusions of law that require no
response from Plaintiffs. To the extent that a response is required, Plaintiffs deny
Paragraph 162 of Defendants' Counterclaim and demand strict proof thereof at trial.
WHEREFORE, Plaintiffs Steven A. Ewing and Jane B. Ewing respectfully request that
this Court dismiss Count III of Defendants' Counterclaim and award Plaintiffs costs of suit,
attorney's fees and any other relief that this Court should find appropriate.
COUNT IV—TRESPASS
ALL DEFENDANTS V. PLAINTIFFS
175. Admitted in part and denied in part. Plaintiffs admit Paragraph 166 of Defendants'
Counterclaim only to the extent that Defendants incorporate Paragraphs 1-165 into the
body of their Counterclaim. All other implications arising therefrom are denied.
176. Denied. Plaintiffs deny Paragraph 176 of Defendants' Counterclaim and demand strict
proof thereof at trial.
177. Denied. Paragraph 177 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 177 of Defendants' Counterclaim and demand strict proof thereof at trial.
178. Denied. Paragraph 178 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 178 of Defendants' Counterclaim and demand strict proof thereof at trial.
179. Denied. Paragraph 179 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 179 of Defendants' Counterclaim and demand strict proof thereof at trial.
180. Denied. Paragraph 180 of Defendants' Counterclaim contains conclusions of law that
require no response from Plaintiffs. To the extent that a response is required, Plaintiffs
deny Paragraph 180 of Defendants' Counterclaim and demand strict proof thereof at trial.
WHEREFORE, Plaintiffs Steven A. Ewing and Jane B. Ewing respectfully request that
this Court dismiss Count IV of Defendants' Counterclaim and award Plaintiffs costs of suit,
attorney's fees and any other relief that this Court should find appropriate.
Respectfully submitted,
CAPOZZI ADLER, P.C.
Date:
— 2J -- I3
Paul R.Van Fleet, E 4.
Supreme Court ID: 312135
P.O. Box 5866
Harrisburg, PA 17110
Phone: (717) 233-4101
paulv(capozziadler.com
Defendants .
VERIFICATION
I, Steven A. Ewing, do hereby verify under penalties of perjury and upon personal
knowledge that the contents of the foregoing Answer to Defendants'New Matter and
Counterclaim are true and correct to the best of my knowledge, information, and belief.
Date: / /� o2, 020/' .� ■
7 /
Steven A. Ewing
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STEVEN A. EWING AND JANE B. EWING, : NO. 11-5378
Plaintiffs .
vs. • Complaint—Civil Action
TAM L. LY, CASSANDRA L. LY, ERIK :
S. OLSEN, AND CYNTHIA M. OLSEN :
•
Defendants
•
VERIFICATION
I, Jane B. Ewing, do hereby verify under penalties of perjury and upon personal
knowledge that the contents of the foregoing Defendants'New Matter and Counterclaim are true
and correct to the best of my knowledge, information, and belief.
Date: r7- O��p� �1/� ?)/C-e 4 JaEwing
r .
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STEVEN A. EWING AND JANE B. EWING, NO. 13-3155
Plaintiffs
VS. Complaint—Civil Action
TAM L. LY, CASSANDRA L. LY, ERIK
S. OLSEN, AND CYNTHIA M. OLSEN w
C)
rc
Defendants
-<>
--s
ENTRY OF APPEARANC
-< rn u
TO THE PROTHONOTARY:
Please enter the appearance of Brandon S. Williams, Esquire, of Capozzi Adler,P.C. as
counsel of record for the Plaintiffs, Steven A. Ewing and Jane B. Ewing.
Respectfully submitted,
Capozzi A ler,P
Date: /� l
Brandon Williams, Esq.
Supreme Court ID: 200713
P.O. Box 5866
Harrisburg, PA 17101
(717) 233-4101
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STEVEN A. EWING AND JANE B. EWING, NO. 13-3155
Plaintiffs
VS. Complaint—Civil Action
TAM L. LY, CASSANDRA L. LY, ERIK
S. OLSEN, AND CYNTHIA M. OLSEN
Defendants
CERTIFICATE OF SERVICE
I, Brandon L. Williams,Esquire,hereby certify that on the 1S`day of November, 2013, I
served the foregoing Entrance of Appearance by depositing same in the United States Mail,by
First Class Mail, postage prepaid, addressed as follows:
James D. Hughes, Esquire
Jason E. Kelso, Esquire
Salzmann Hughes P.C.
354 Alexander Spring Road, Suite
Carlisle, PA 17015
Date:
Brandon Williams, Esq.ZL
Supreme Court ID: 200713
Capozzi Adler, P.C.
P.O. Box 5866
Harrisburg,PA 17101
(717) 233-4101
STEVEN A. EWING AND
JANE B. EWING,
Plaintiff
v.
TAM L. LY, CASSANDRA L. LY, :
ERIK S. OLSEN AND
CYNTHIA M. OLSEN,
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2013-3155 CIVIL TERM
CIVIL ACTION -LAW
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter my appearance on behalf of the Plaintiffs, Steven A. Ewing and
Jane B. Ewing in the above -captioned matter.
Respectfully submitted,
BARIC SCHERER LLC
Date: December 4, 2014
ichael A. Scherer, Esquire
I.D.# 61974
19 West South Street
Carlisle, PA 17013
(717) 249-6873
CERTIFICATE OF SERVICE
I hereby certify that on December 4, 2014, I, Jennifer S. Lindsay, secretary at Baric
Scherer LLC, did serve a copy of the Praecipe For Entry Of Appearance, by first class U.S.
mail, postage prepaid, to the parties listed below, as follows:
Robert B. Hamilton, Esquire
Saidis, Sullivan & Rogers
26 West High Street
Carlisle, Pennsylvania 17013
James D. Hughes, Esquire
Salzmann Hughes, P.C.
354 Alexander Spring Road, Suite 1
Carlisle, Pennsylvania 17015
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STEVEN A. EWING AND JANE B. EWING, NO. 13-3155
Plaintiffs
vs.
Civil Action
TAM L. LY, CASSANDRA L. LY, ERIK
S. OLSEN, AND CYNTHIA M. OLSEN
Defendants
PP . ECTPE TO W'ITHI AIN A PPE,'.,t 4 NCE
itl liii a.i! t • � a w . � � ._ __. : �..
TO THE PROTHONOTARY:
Please withdraw the appearance of Capozzi Adler, P.C. and the undersigned, Brandon
Williams, Esquire as counsel of record for the Plaintiffs, Steven A. Ewing and Jane B. Ewing.
Plaintiff has notified our office that they have retained new counsel, Michael. A. Scherer,
Esquire, who will be entering his appearance on their behalf
/Jt
11/
Brandon Williams, Esq.
Supreme Court ID: 200713
CAPOZZI ADLER, P.C.
P.O. Box 5866
Harrisburg, PA 17101
(717) 233-4101
Counsel for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
STEVEN A. EWING AND JANE B. EWING, NO. 13-3155
Plaintiffs
vs.
Civil Action
TAM L. LY, CASSANDRA L. LY, ERIK
S. OLSEN, AND CYNTHIA M. OLSEN
Defendants
CERTIFICATE OF SERVICE
I, Brandon L. Williams, Esquire, hereby certify that on the 7.,6 day of November, 2014,
I served the foregoing Withdrawal of Appearance by depositing same in the United States Mail,
by First Class Mail, postage prepaid, addressed as follows:
Date:
James D. Hughes, Esquire
Jason E. Kelso, Esquire
Salzmann Hughes P.C.
354 Alexander Spring Road, Suite
Carlisle, PA 17015
Michael A. Scherer, Esquire
Baric Scherer, LLC
19 West South Street
Carlisle, PA 17013
Steven A. Ewing and Jane B. Ewing
1425 Rock:iedge Drive
Carlisle, PA 17015
Brandon Williams, Esq.
Supreme Court ID: 200713
Capozzi Adler, P.C.
P.O. Box 5866
Harrisburg, PA 17101
(717) 233-4101