HomeMy WebLinkAbout04-6370IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
William E. Ferris and Kerd E. Ferris
Plaintiffs :No. D'4 _ L,376 VS.
Bruce Rotz and Patsy Rotz
Defendants
Civil Action - Law
NOTICE
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS
SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20)
DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT
YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE
WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU AND A
JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR
ANY MONEY CLAIMED IN THE COMPLAINT OR ANY OTHER CLAIM FOR RELIEF REQUESTED BY
THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO
YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW
TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PENNSYLVANIA
(717) 249-3166
H. ANTHONY ADAMS
ATTORNEY AT LAW
SUPREME COURT ID NO. 25502
49 WEST ORANGE STREET, SUITE 3
SHIPPENSBURG, PA 17257
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
William E. Ferris and Kerri E. Ferris
. No. 04 - lr3'7U
Civil Action - Law
01 01 t '-7?rl
Plaintiffs
vs.
Bruce Rotz and Patsy Rotz
Defendants
COMPLAINT
AND now, come the Plaintiffs, William E. Ferris and Kerri E. Ferris, by and
through their attorney, H. Anthony Adams and states the following cause of action and
in support thereof, aver as follows:
1.
Plaintiffs are William E. Ferris and Kerri E. Ferris, adult individuals, who reside at
51 Chestnut Grove Road, Cumberland County, Shippensburg, Pennsylvania, 17257.
2.
Defendants are Bruce Rotz and Patsy Rotz, adult individuals, who reside at 257
Airport Road, Shippensburg, Cumberland County, Pennsylvania
3.
Plaintiffs are the owners of land located in Southampton Township, Cumberland
County, Pennsylvania, as a result of a deed of conveyance dated August 25, 1972 and
recorded in the Office of the Recorder of Deeds in and for Cumberland County in Deed
Book U-24 at page 153. A copy of the deed is attached hereto as Exhibit A.
4.
Defendants are the owners of land located in Southampton Township,
Cumberland County, Pennsylvania as a result of a deed of conveyance dated June 27,
2003 and recorded in the Office of the Recorder of Deeds in and for Cumberland
County in Deed Book 257 at page 4552. A copy of the deed is attached hereto as
Exhibit B.
5.
The Defendants' land is not unenclosed or open woodland.
6.
Plaintiffs have enjoyed free and uninterrupted use of a 12-foot wide right-of-way
over the land of Defendants since August 25, 1972. Prior to that time, Plaintiffs
predecessor enjoyed free and uninterrupted use for a period of 40 years. The land of
Plaintiffs and Defendants have a common boundry.
7.
A deed of easement exists over the lands of the Defendants by virtue of a deed
of easement filed in Record Book 372 page 194. A copy of which is attached hereto as
Exhibit C. The deed does not directly benefit the Plaintiffs as a parry but expressly
includes adjacent lands.
8.
A survey of the land of Defendants in 1978 clearly shows the right-of-way. A
copy of the survey is attached hereto as Exhibit D.
9.
The right-of-way is apparent upon view of the land owned by Defendants.
10.
A gate located on the right-of-way between the land of Plaintiffs and Defendants
has been locked and Defendants refuse to open the gate, remove the gate or supply a
key to the gate to the Plaintiffs. The gate has no purpose except to exclude Plaintiff
from his land.
11.
The use of the road by the Plaintiffs has been open, hostile, visible,
COUNT I - EASEMENT IMPLIED BY NECESSITY
12.
Plaintiffs incorporate paragraphs 1 through 12 of the Complaint by reference as if
set forth in their entirety.
13.
Plaintiffs allege that Defendants, upon their purchase of the lands through which
the dirt road runs, were aware of the existence of the use of the road and its
permanent nature.
14.
The dirt road is an open and visible roadbed, which has been used continuously
by Plaintiffs since their purchase of their land and prior to that by the former owners of
Plaintiffs' land.
15.
There exists no public road or other means of ingress or egress to the land
locked property belonging to Plaintiffs except across the dirt road, thereby making use
of the dirt road right of way an actual necessity.
16.
Plaintiffs' land is completely land locked with no public road frontage or access
road for ingress or egress, other than the aforementioned dirt road. Plaintiffs allege
that an easement by necessity has arisen, thereby affording Plaintiffs an easement
across Defendants' land for ingress, egress and regress for the beneficial use and
enjoyment of Plaintiffs' property.
COUNT II - ADVERSE USE
17.
Plaintiffs incorporate paragraphs 1-16 of the Complaint by reference as if set
forth in their entirety.
18.
Plaintiffs and their predecessors in title have not used the dirt road with any
permission or willing consent of the Defendants.
19.
Plaintiffs and their predecessors in title used the dirt road right of way openly
and with knowledge of such use communicated to Defendants and their predecessors in
title.
20.
The dirt road right of way has been continuously and openly without hindrance
for a period in excess of 40 years.
21.
The use of the private direct road as established the road as an easement.
COUNT III - EXPRESS EASEMENT
22.
Plaintiffs incorporate paragraphs 1 through 21 of the Complaint by reference as if
set forth in their entirety.
23.
Defendants accepted their land as set forth in the Exhibits subject to Plaintiffs'
easement as set forth in the marked Exhibit "C".
24.
Defendants' refusal to open the dirt road is so egregious that attorney's fees
expended or expected to be expended by Plaintiffs in the amount of $5,000.00 should
be awarded to Plaintiffs.
WHEREFORE, Plaintiffs, William E. Ferris and Kerri E. Ferris, respectfully requests
this Honorable Court to enter judgment in their favor of Plaintiffs and against
Defendants and enter an Order of Court on Count I of this Complaint awarding Plaintiff
easement by necessity across Defendants' property; or in the alternative, enter an
Order of Court in accord with Count II of this Complaint, awarding Plaintiffs an
easement by perscription for ingress and egress to and from Plaintiffs' property and
across Defendants' property; or in the alternative, enter an Order of Court in
conformance with Count III of this Complaint, declaring the aforesaid dirt road to be
subject to an express easement; and Plaintiff FURTHER prays this Court issue a
preliminary injunction enjoining the Defendants from obstructing, blocking, or otherwise
interfering with Plaintiffs' right to access through Defendants' lands; and, upon the
hearing, enjoin the Defendants from obstructing, blocking or otherwise interfering with
Plaintiffs' use of the dirt road and Plaintiffs' right of access over said dirt rod through
Defendants' land, and FURTHER that this Court order the Defendants to remove any
gates, posts, fences, barriers, barricades or other obstructions, which they may have
placed across the dirt road, easement or right of way of Plaintiffs, and restore said road
and right of way to its existing condition at the time immediately prior to Defendants'
acts of obstruction; award monetary damages to Plaintiffs for deprivation of use and
enjoyments of Plaintiffs' property and interference with the same by Defendants;
award Plaintiffs court costs and reasonable attorney's fees expended in enforcement of
Plaintiffs' right of access through Defendants' land; and retain jurisdiction of this matter
or ascertain that the Order of Court is obeyed by the Defendants and award such other
relief as this Court may deem just and proper.
Respectfully submitted,
H. Anthony Adams, Esquire
Attorney for Plaintiffs
49 West Orange Street, Suite 3
Shippensburg, PA 17257
(717)-532-3270
Dated : t `???
VERIFICATION
We verify that the statements made in this Complaint are true and correct. We
understand that false statements herein are made subject to the penalties of 18 Pa.
C.S. Section 4904 relating to unsworn falsification to authorities.
Date: I*, , C? l
Date: */64
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?C7i$ Deebt
MADE THE 25th day of August in the year
of our lord one thousand nine hundred and seventy-two (1972)
BETWEEN THOMAS SMYTH, Widower and Single Man, of the Borough of
Shippcnsburg, County of Cumberland and Commonwealth of
Pennsylvania, party of the first part as Grantor
and
WILLIAM E. FERRIS and KERRI E. FERRIS, his wife, of the
Township of Southampton, County of Cumberland and Commonwealth
of Pennsylvania, parties of the second part as Grantees ,
WITNESSETH, that in consideration of Twenty-two Hundred and F:iphty ($2280.00)
-------------------------------------------------------------- Dollars,
in hand paid, the receipt whereat is hereby acknowledged, the said grantor does hereby grant and
convey to the said grantee S , ALL that certain tract or parcel of land situate
in the Township of Southampton, County of Cumberland and Commonwealth
of Pennsylvania, bounded and described as follows:
BEGINNING at a stone at corner of lands,formerly of Robert
McCune and now or formerly of Samuel Russell; thence by lands
now or formerly of Henry Hippensteel Heirs, South twenty-seven
(27) degrees west ninety-one and three-fourths (91 3/4) perches
to a post; thence by lands formerly of Jacob Bomberger, now
of the Commonwealth of Pennsylvania, South sixty (60) degrees
East, fifteen and one-fourth (15 1/4) perches to a post; thence
by the same, North thirty and one-half (30 1/2) degrees East,
one hundred six (106) perches to a post; thence by the said
land formerly of Robert McCune, now or formerly of Samuel
Russell, South eighty-five (8S) degrees West, twenty-seven
and one-fourth (27 1/4) perches to the place of BEGINNING.
Containing eleven (11) acres and sixty-three (63) perches,
more or less, pursuant to survey of George Walters made
December 24, 1853.
BEING the same tract of land which Hiram D. Highlands and Daisy
Fay highlands, his wife, by their deed dated the 19th day of December,
1950 and recorded in the office for the recording of deeds in and
for the County of Cumberland in Deed Book "Or', Vol, 14, Page 283,
conveyed to Thomas Smyth, Grantor herein.
4n/'?,t.,J, t 12,
School Dist. Cumb, Co., Pa.
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AND the said grantor hereby covenant S and agroe S that they and each of them will warrant
generally the property hereby conveyed.
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. IN WITNESS WHEREOF, said grantor ho S hereunto set his hand and sect]
the day and year first above written.
Ai9neb. ,Yr/IeJ Assl AdiurrrL ___.._?L?!]! 7^ . .......................................+.._._.. ewAL
in tilt Present' of
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....__..-_................
Gl/? l? d `ty.
State of Pennsylvania
County of Cumberland ss.
On this, the 25th day of August 1972 , before me,
the undersigned officer, personalty appeared Thomas Smyth, Widower and Single Man,
known to me for satisfactorily proven) to be the person whose name is subscribedV t? ry"t, ,
in instrument, and acknowledged that he executed some for the purposes then in`cootainvd. '
IN WITNESS WHEREOF, I hereunto set my hand and official seal,
} 1, ;
Notary Public . }
Shippensburg"Cumbcl7?aa>}cld BUaftx',; Pa.
My Comm, expires: July 8, 1?7h
1 do hereby certify that the precise residence and complete post office address of
the within named grantee is R. D.#4, S hippensburg, Pa. 17257
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RECORDED on this day of -- A. D. 19...._71 In the Recorder's office of the said County, in Deed Book Z -
Vol. __._._._:Z..._.., page S3 .
Given under my hand and the seal of the said office date above written.
9L..._._! !^.-! Recorder.
BOOK (- 24 PAGE 154
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TAX PARCEL NO. 3' 1 6 I ?'? 3 3
THIS DEED
MADE thex* day of JAht , in the year of our Lord Two Thousand and
Three (2003)
BETWEEN
WUJ tAM CAIN, single person, of, Shippensburg, Cumberland County Pennsylvania,
GRANTOR
AND
RRUCF K. ROT7, and PATSY A. ROT7r husband and wife, of 457 Airport Road,
Shippensburg, Pennsylvania. 17257,
GRANTEE
WITNESSETH, that in consideration of Thirty-Three Thousand and 00/100
($33,000.00) Dollars, in hand paid, the receipt whereof is hereby acknowledged, the said Grantor
doe hereby grant and convey to the said Grantees, their heirs and assigns,
ALL that certain tract of land situate in Southampton Township, Cumberland County,
Pennsylvania, more particularly bounded and described as follows
BEGINNING at a point at comer of lands now or formerly of Michael Miller and the
Commonwealth of Pennsylvania; thence along lands now or formerly of the Commonwealth of
Pennsylvania, South 27 degrees 48 minutes 15 seconds West 94.00 feet to existing stones; thence
along lands now or formerly of Hiram Highlands, South 76 degrees 05 minutes 52 seconds West
327.07 feet to existing stones; thence along lands now or formerly of Jack Hippensteel North 15
degrees 08 minutes 00 seconds East 350.98 feet to existing stones; thence along lands now or
formerly of John Burns, South 60 degrees 09 minutes 01 seconds East 316.98 feet to existing
stones, the point and place of BEGINNING.
CONSISTING of 1.428 acres, more or less. Shown as Tract #2 on resurvey for Charles
E. Ott, by Kissinger & Wolfe, Surveyors, dated October 30, 1978, and recorded in Cumberland
County Deed Book "A", Volume 28, Page 677.
BEING the same real estate which Robert Lee Boher aand Saly Ann Boher„ husband and
wife, by deed dated January 21, 2000, and recorded in Cumberland County Deed Book 215, Page
416, granted and conveyed to William Cain, Grantor herein.
????. 257
AND the said Grantor covenants and agrees that he will warrant specially the property
hereby conveyed.
IN WITNESS WHEREOF, said Grantor has set his hand and seal, the day and year first
above written.
Signed, sealed and delivered
in the presence of
114 LCa
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WILLIAM CAIN
(SEAL)
I do hereby certify that the precise residence and complete post office address of the within
named Grantees is: S^ t ?- 0 or-? t c
U fA 1-7
Date: b ?Z7 h r4
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Atto y'Agent for Granteef
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COMMONWEALTH OF PENNSYLVANIA
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COUNTY OF CUMBERLAND ;
On this, the ?tday of June, 2003, before me, a Notary Public, theundersigned officer,
personally appeared William Cain, known to me as (or satisfactorily proven to be) the person
whose name is subscribed to the within instrument, and acknowledged that he executed the same
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
NOTARIAL SEAL
SALLYl. AIKPM
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DEED OF EASEMENT
MADE this 104Gx day of in the year nineteen
hundred and eighty-nine (1989).
BETWEEN Ronald A. Williams, Sr. and Catherine M. Williams, his
wife, and Stanley E. Rickrode and Georgiianna Rickrode, his wife,
of Southampton Township, Cumberland County, Pennsylvania,
Grantors,
AND Robert Lee Boher and Sally Ann Boher, his wife, Stanley
Rickrode and Georgianna Rickrode his wife, and Donald Shields and
Christine Shields, his wife,
Grantees.
WITNESSETH that in consideration, the Grantors have granted,
bargained and by these presents do grant and bargain unto the said
Grantees, their heirs and assigns, the free and uninterrupted use,
liberty and privilege of, and passage in and along a certain
?I easement, right-of-way or passageway, being approximately 12 feet
II in width, and 500 feet in length or depth, extending in a southerly
direction from and out of Township Route T-323, in Southampton
Township, Cumberland County, Pennsylvania, along the westerly side
of the present lots of said Grantors on the southerly side of said
Township Road T-323.
I
i•, TOGETHER with free ingress, egress and regress to and for the said
j Grantees, their heirs and assigns, their tenants and undertenants,
?i occupiers, or possessors of the said Grantees' said premises
contiguous to and South of said easement, right-of-way or
j passageway, in common with them, the said Grantors, their heirs and
assigns, their tenants and undertenants, occupiers or possessors
of the said Grantors' ground adjacent to the said easement, right-
of-way or passageway.
TO HAVE AND TO HOLD all and singular the privileges aforesaid to
them, the said Grantees, their heirs and assigns, to and for the
only proper use and behoof of them, the said Grantees, their heirs
and assigns, forever, in common with them, the said Grantors, their
heirs and assigns, as aforesaid.
SUBJECT, NEVERTHELESS, to the moiety, or equal part of all
necessary charges and expenses which shall from time to time accrue
from paving, grading, repairing, cleaning and dustproofing said
right-of-way, easement, or passageway.
The said Grantees, their heirs and assigns, to use the existing
rOREST N. MTZRS i
,,,,op„E ruw right-of-way, easement, or passageway which appears on the ground
.. and to refrain from any further extension of said right-of-way,
• „??oa?,a.••„:s? easement, or passageway onto or into the present lots of the said
I! Grantors.
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IN WITNESS WHEREOF the said Grantors have hereunto set their hands,
and seals the day, month and year first above written.
WITNESS:
iL ?L"L''f `r l`?C•• a/ (' (SEAL)
Ronald A. Williams, Sr.
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4['.?: (SEAL)
Catherine M. Williams
A<v[,?U1 ?.ic.L°' c">lc (SEAL)
S - ickrode
416' rm Y P? ( SEAL )
/J Georgianna Rickrode
'.7 f1 ' `
Zv -I ' (SEAL)
Donald Shields
(SEAL)
Christine Shields
ACKNOWLEDGEMENT
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF
On this \i day of .\"-.,'A • , 1989, before me,
a Notary Public, the undersigned officer, personally appeared
RONALD A. WILLIAMS, SR. and CATHERINE M. WILLIAMS, his wife, and
STANLEY E. RICKRODE and GEORGIANNA RICKRODE, his wife, known to me
(or satisfactorily proven) to be the persons whose names are
subscribed to the within instrument, and acknowledged the foregoing
to be their act and deed, and desired the same to be recorded as
such.
WITNESS my hand and official seal, the day and year afo?c,aid.
LU.
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Notary Public
BOOK 372 PATE 193 ? rIY
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
William E. Ferris and Kerri E. Ferris
No. 04-6370 Civil Term
Plaintiffs
VS. : Civil Action - Law
Bruce Rotz and Patsy Rotz
Defendants
PLAINTIFFS' ANSWER TO DEFENDANTS' NEW MATTER
25.
Denied, the Defendants' land is not unenclosed woodland nor is it fully
forested, the Defendants' land is a lot being used for a residence.
26.
Denied, the Plaintiffs' have the right to use Cabin Lane for ingress and egress
to their property.
27.
Denied, the Plaintiffs' have the right to use Cabin Lane for ingress and egress
to their property.
28.
Denied, the Plaintiffs' have an easement to and across the land of Defendants.
29.
Paragraph 29 of Defendants' New Matter is a conclusion of law to which no
response is required.
30.
Admitted that the fact listed in paragraph 30 is not specifically averred.
31.
Paragraph 31 is a statement of law to which no responsive pleading is
required.
32.
Denied, it is believed and therefore averred that the tract of land owned by
the Plaintiffs and Defendants were originally owned as a single tract.
33.
Paragraph 33 is a statement of law to which no responsive pleading is
required.
Wherefore, Plaintiffs' prays judgment be entered in their favor.
Respectfully
H. Anthony Adams
Attorney for Defendant
49 West Orange Street
Shippensburg, Pa. 17257
Supreme Court ID # 25502
VERIFICATION
I verify that the statements made in this answer are true and correct. I
understand that false statements herein are made subject to the penalties of 18
Pa. C.S. Section 4904 relating to unsworn falsification to authorities.
I C1S t? _E?--
Date:v 4i
WILLIAM E. FERRIS 1-\4 1
Date: S l !1 r ?;ULL ? Ll
KERRI E. FERRIS
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SHERIFF'S RETURN - REGULAR
CASE NO: 2004-06370 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
FERRIS WILLIAM E ET AL
VS
ROTZ BRUCE ET AL
SHANNON SHERTZER
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
ROTZ BRUCE
DEFENDANT
the
, at 1533:00 HOURS, on the 27th day of December-, 2004
at 257 AIRPORT ROAD
SHIPPENSBURG, PA 17257
by handing to
PATSY ROTZ. WIFE
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 14.80
Affidavit .00
Surcharge 10.00
.00
42.80
Sworn and Subscribed to before
me this ,gyp " day of
T) _311, na
So Answers:
R. Thomas Kline
12/28/2004
H ANTHONY ADAMS
By: (4., ?, 7V
Deputy Sheriff
Prothonotary'
SHERIFF'S RETURN - REGULAR
CASE NO: 2004-06370 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
FERRIS WILLIAM E ET AL
VS
ROTZ BRUCE ET AL
SHANNON SHERTZER , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
ROTZ PATSY
DEFENDANT
was served upon
the
, at 1533:00 HOURS, on the 27th day of December-, 2004
at 257 AIRPORT ROAD
SHIPPENSBURG, PA 17257 by handing to
PATSY ROTZ
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
n,
L V . V V
Sworn and Subscribed to before
me this /6 day of
AV 6' A. D.
So Answers:
R. Thomas Kline
12/28/2004
H ANTHONY ADAMS
By: , ji
(j, LA-- ? - A ?)- -
eputy Sherl
rothonotary
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one) ( ) for JURY trial at the next term of civil court.
( X ) for trial without a jury.
-----------------------------------------
CAPTION OF CASE
(entire caption must be stated in full) (check one)
William E.Ferris
and Kerri E. Ferris
(X ) Civil Action - Law
( ) Appeal from Arbitration
(other)
(Plaintiff)
VS.
Bruce Rotz
and Patsy Rotz
(Defendant)
VS.
The trial list will be called n
August 22,2006
Trials commence on September 18,2006
Pretrials will be held on August 30,2006
(Briefs are due 5 days before pretrials. )
(The party listing this case for trial shal
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No. 04 6370
Indicate the attorney who will try case for the party who files this praecipe:
H. Anthony Adams
Indicate trial counsel for other parties if ]mown:
Sally J. Winder
This case is ready for trial.
Date:
Signed:
Print Name: Nlyts
Attorney for:
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PR(7THONOTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one) ( ) for JURY trial at the next term of civil court.
( X ) for trial without a jury.
------------ ----------------------------
CAPTION OF CASE
(entire caption must be stated in full) (check one)
U') I , N?Ctm F?
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(other)
VS.
(Defendant)
VS.
(Plaintiff)
X Civil Action - Law
( ) Appeal from Arbitration
The trial list will be called on-
and c? 10 , C?)v
Trials conmence on
Pretrials will be held on
(Briefs are due 5 days before ret ials.)
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No. V Civil b 3 D -?--
Indicate the attorney who will try case for the party who files this praecipe:
Indicate trial counsel for other parties if known
This case is ready for trial.
Date:
Signed:.?
Print Name:
Attorney for: ?l C? c T t `?` ??
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WILLIAM E. FERRIS and,
KERRI E. FERRIS
Plaintiffs
V.
BRUCE ROTZ and PATSY ROTZ,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: 04-6370 CIVIL
ORDER OF COURT
AND NOW, this 21st day of September, 2006, the non-jury trial in the
above referenced case has been assigned to this Court. Prior to setting an actual trial
date, IT IS HEREBY ORDERED AND DIRECTED that the parties in this case file a pre-
trial memorandum with the Court on or before October 11, 2006 in the following format:
1. A concise statement of factual issues to be decided at trial.
II. A list of witnesses the party intends to call at trial along with a concise
statement of their anticipated testimony.
III. A list of all exhibits each party anticipates presenting at trial.
IV. A statement of any legal issues each party anticipates being raised at trial
along with copies of any cases which may be relevant to resolution of the stated issue.
V. An estimate of the anticipated time needed for the party to present its case.
Upon receipt and review of these memorandums, the Court will set a trial date for
this case.
By the Court,
Oq ??. 0
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M. L. Ebert, Jr.,
80 :h Wd 1 Z OS 906Z
At VII- O'HiOdd 3H.i. J0
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H. Anthony Adams, Esquire
Attorney for Plaintiffs
Sally J. Winder, Esquire
Attorney for Defendants
Court Administrator -'Q44 lr?
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WILLIAM E. FERRIS and,
KERRI E. FERRIS
Plaintiffs
V.
BRUCE ROTZ and PATSY ROTZ,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6370 CIVIL
ORDER OF COURT
AND NOW, this 19th day of October, 2006, the non-jury trial in the above-
captioned matter shall be held on Wednesday, December 20, 2006 at 10:30 a.m. in
Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. A view
of the property shall take place on Monday, December 18, 2006 at 4:00 p.m. The view
will be limited to the Court and the attorneys.
By the Court,
M. L. Ebert, Jr., J.
Anthony Adams, Esquire
Attorney for Plaintiffs
,61ly J. Winder, Esquire A
Attorney for Defendants
Court Administrator
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WILLIAM E. FERRIS and,
KERRI E. FERRIS
Plaintiffs
V.
BRUCE ROTZ and PATSY ROTZ,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6370 CIVIL
ORDER OF COURT
AND NOW, this 22nd day of January, 2007, after non-jury trial in this case and
upon consideration of the briefs filed by the parties, and the Court having conducted a
view of the property in question;
IT IS HEREBY ORDERED AND DIRECTED that Judgment shall be entered in
favor of the Plaintiffs and the Plaintiffs shall be awarded an easement by prescription for
ingress and egress to and from the Plaintiffs' property and across Defendants' property.
IT IS FURTHER ORDERED AND DIRECTED that the Defendants shall remove
all gates, posts, fences, barriers, or other obstructions which they may have placed
across the prescriptive easement commonly referred to as Cabin Lane.
By the Court,
-?to,?AAV
M. L. Ebert, Jr., J.
H. Anthony Adams, Esquire
Attorney for Plaintiffs
Sally J. Winder, Esquire
Attorney for Defendants
Court Administrator -
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WILLIAM E. FERRIS & : IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs CIVIL ACTION
vs
BRUCE ROTZ & NO. 04 - 6370 CIVIL TERM
PATSY ROTZ,
Defendants
DEFENDANTS' MOTION FOR POST-TRIAL RELIEF
Defendants Bruce Rotz and Patsy Rotz, by and through their counsel, Sally J. Winder,
and pursuant to the provisions of Rule 227.1 of the Pennsylvania Rules of Civil
Procedure (Pa. R.C. P.) file the following Motion For Post-Trial Relief from the Order of
Court dated January 22, 2006, entering judgment in favor of the Plaintiffs and awarding
Plaintiffs an easement by prescription across the property of Defendants. Defendants
request the Court to vacate and reverse its decision and Order of Court, and enter
judgment in favor of the Defendants and find that no easement by prescription exists
across the property of Defendants. Defendants assign the following grounds therefor:
1. At trial, the Plaintiffs failed to prove, by clear and convincing evidence, the
elements of continuous use and of adverse use of the claimed easement track
across Defendants' property for the statutory period of 21 years.
2. At trial, the Defendants did prove, by clear and convincing evidence, that the
claimed easement track across Defendants' property passes through unenclosed
woodland as that term is defined in 68 P.S. section 411 and as that term has been
interpreted by the Pennsylvania courts. Thus, Plaintiffs could not, and cannot,
acquire an easement by prescription across Defendants' property.
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3. Pursuant to the provisions of Rule 227.3, Pa. R.C.P., Defendants request that all
of the testimony offered at trial of the case be transcribed in order to enable the
Court to dispose of the Motion For Post-Trial Relief.
WHEREFORE, for the reasons and grounds stated in this Motion For Post-Trial
Relief, Defendants request the Court to vacate and reverse the decision and Order of
Court dated January 22, 2007, and to enter judgment in favor of the Defendants and
against the Plaintiffs, and to find that no easement by prescription exists across
Defendants' property.
Re ly submitted. n
y J. Wind?r, Attorney for Defendants
9974 Molly Pitcher Highway
Shippensburg, PA 17257
(717) 532-9476
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
William E. Ferris and Kerri E. Ferris
Plaintiffs
vs.
No.04-6370 Civil
Civil Action - Law
Bruce Rotz and Patsy Rotz
Defendants
PETITION FOR FINDING OF CONTEMPT
Now come the Petitioners, William E. Ferris and Kerri W. F=erris, by and thrOLIgh
their attorney, H. Anthony Adams, Esquire and set forth the following:
1.
An order of court to enforce an easement after petition and hearing was entered on
November 28, 2006. A copy of the order is attached hereto and made a part hereof.
2.
The Defendants have failed to comply with the order and have not perf=ormed any
of the acts required by that order.
3.
The Plaintiffs have again been required to seek counsel to enforce the order and
will be required to pay legal fees in the amount of $500.00.
Wherefore, Plaintiffs request your Honorable Court enter an order to hold a hearing
to determine if Defendants are in contempt of court and to incarcerate Defendant, setting
as a condition to purge, compliance with the court order and order payment of the costs
of proceedings and legal fees of $500.00.
H. Anthony Adarns, Esquire
Attorney for Plaintiff
49 W. Orange Street, Suite 3
Shippensburg, PA 17257
(717)-532:-3270
WILLIAM E. FERRIS and,
KERRI E. FERRIS
Plaintiffs
V.
BRUCE ROTZ and PATSY ROTZ,
Defendants
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6370 CIVIL
ORDER OF COURT
AND NOW, this 22nd day of January, 2007, after non jury trial in this case and
upon consideration of the briefs filed by the parties, and the Court having conducted a
view of the property in question;
IT IS HEREBY ORDERED AND DIRECTED that Judgment shall be entered in
favor of the Plaintiffs and the Plaintiffs shall be awarded an easement by prescription for
ingress and egress to and from the Plaintiffs' property and across Defendants' property.
IT IS FURTHER ORDERED AND DIRECTED that the Defendants shall remove
all gates, posts, fences, barriers, or other obstructions which they may have placed
across the prescriptive easement commonly referred to as Cabin Lane.
By the Court,
M. L. Ebert, Jr., ! J.
H. Anthony Adams, Esquire
Attorney for Plaintiffs
Sally J. Winder, Esquire
Attorney for Defendants
Court Administrator
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TRUE COPY FROM
In Testimony whereof, I here unto set my ham
ind the seal of said C at Carlisla, ft.
rNa
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Prot?onotaDr
FEB 28 2007 00?
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
William E. Ferris and Kerri E. Ferris
Plaintiffs : No.04-6370 Civil
VS.
Bruce Rotz and Patsy Rotz
: Civil Action - Law
Defendants
ORDER
And now this day of February, 2007 upon the motion of H. Anthony
Adams, Esquire and after consideration of the facts set forth in the attached petition, a
hearing in the matter to determine if Bruce Rotz and Patsy Rotz are in contempt of this
Court's Order of January 22, 2007 is scheduled for the day of
2007 at /1).'va o'clock am/#win Court Room No. 5 of the
Cumbe and County Courthouse, Carlisle, Pennsylvania, 17013
By the Court,
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WILLIAM E. FERRIS and,
KERRI E. FERRIS
Plaintiffs
V.
BRUCE ROTZ and PATSY ROTZ,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6370 CIVIL
ORDER OF COURT
AND NOW, this 18th day of May, 2007, it appearing that the Defendant's
Motion for Post Trial Relief was not forwarded to the Court for review until
May 16, 2007 and now upon consideration of the Defendant's Motion for Post
Trial Relief,
IT IS HEREBY ORDERED AND DIRECTED that Defendant's Motion for
Post Trial Relief is DENIED.
By the Court,
,\\k -?
/Anthony Adams, Jr., Esquire
Attorney for Plaintiffs
ally J. Winder, Esquire
Attorney for Defendants
M. L. Ebert, Jr.,
J.
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WILLIAM E. FERRIS & : IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs CIVIL ACTION
vs
BRUCE ROTZ &
PATSY ROTZ,
Defendants
: NO. 04 - 6370 CIVIL TERM
NOTICE OF APPEAL
Notice is hereby given that Bruce Rotz and Patsy Rotz, defendants above named,
hereby appeal to the Superior Court of Pennsylvania from the order entered in this matter
on the 18th day of May, 2007. This order has been entered in the docket as evidenced by
the attached copy of the docket entry.
Dated: June t 5-, 2007
Lti?
C/ v
Sally J. W der, (Atty. I.D. #24705)
Attorney for Defendants, Bruce Rotz and
Patsy Rotz
9974 Molly Pitcher Highway
Shippensburg, PA 17257
Telephone (717) 532-9476
PY5511 Cumberland County Prothonotary's Office Page 1
` Civil Case Print
2004-06370 FERRIS WILLIAM E ET AL (vs) ROTZ BRUCE ET AL
Reference No..: Filed........: 12/20/2004
Case Type ..... : COMPLAINT
Jud
00
ment Time...... .
E
i 3:32
g
..... . xecut
on Date 0/00/0000
Judge Assigned: EBERT M L JR Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ---- --------- Higher Crt 1.:
Higher Crt 2.:
********************************************* *********************** ************
General Index Attorney Info
FERRIS WILLIAM E PLAINTIFF ADAMS H ANTHONY
51 CHESTNUT GROVE ROAD
SHIPPENSBURG PA 17257
FERRIS KERRI E PLAINTIFF ADAMS H ANTHONY
51 CHESTNUT GROVE ROAD
SHIPPENSBURG PA 17257
ROTZ BRUCE DEFENDANT
257 AIRPORT ROAD
SHIPPENSBURG PA 17257
ROTZ PATSY DEFENDANT
257 AIRPORT ROAD
SHIPPENSBURG PA 17257
********************************************************************************
* Date Entries
********************************************************************************
- - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
12/20/2004 COMPLAINT
-------------------------------------------------------------------
12/28/2004 SHERIFF'S FILE RETURNED FILED.
Case Type: COMPLAINT & NOTICE Ret Type.: Regular
Litigant.: ROTZ BRUCE
Address..: 257 AIRPORT ROAD
Ctyy/St/Z • SHIPPENSBURG, PA 17257
Hnd To: PATSY ROTZ, WIFE
Shf/D ty.: SHANNON SHERTZER
Date/ Time: 12/27/2004 1533:00
Costs....: $42.80 Pd By: H ANTHONY ADAMS 12/28/2004
-------------------------------------------------------------------
12/28/2004 SHERIFF'S FILE RETURNED FILED.
Case Type: COMPLAINT & NOTICE Ret Type.: Regular
Litigant.: ROTZ PATSY
Address..: 257 AIRPORT ROAD
Ctyy/St/Z • SHIPPENSBURG, PA 17257
Hnd To: PATSY ROTZ
Shf/Dpty.: SHANNON SHERTZER
Date/ Time: 12/27/2004 1533:00
Costs....: $16.00 Pd By: H ANTHONY ADAMS 12/28/2004
-------------------------------------------------------------------
3/07/2005 PLAINTIFFS ANSWER TO DEFTS' NEW MATTER - BY H ANOTHONY ADAMS ESQ
FOR DEFT
-------------------------------------------------------------------
5/02/2006 PRAECIPE
HELD TRIAL 08LI30-06 CALLED - BY 08-22-06
ANTHONY
ADAMS ATTY
-------------------------------------------------------------------
9/18/2006 PRAECIPE FOR LISTING CASE FOR TRIAL - BY H ANTHONY ADAMS ATTY FOR
PLFF
-------------------------------------------------------------------
9/21/2006 ORDER OF COURT - 09-21-06 - IN RE: PRIOR TO SETTING AN ACTUAL
COURT DATE- IT IS ORDERED THAT THE PARTIES IN THIS CASE FILE A
PRE-TRIAL MEMEORANDUM WITH THE COURT ON OR BEFORE 10-11-06 IN
FOLLOWING FORMAT:
I-CONCISE STATEMENT OF FACTUAL ISSUES TO BE DECIDED AT TRIAL
II-LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG
WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESTIMONY
III-A LIST OF ALL EXHIBITS EACH PARTY ANTICIPATES PRESENTING AT
TRIAL
IV-A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEING
PYS511 Cumberland County Prothonotary's Office Page
Civil Case Print
2004-06370 FERRIS WILLIAM E ET AL (vs) ROTZ BRUCE ET AL
Reference No... Filed......... 12/20/2004
Case Type...... COMPLAINT Time. 3.32
Judgment..... .00 Execution Date 0/00/0000
Judge Assigned: EBERT M L JR Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE
RELEVANT TO RESOLUTION OF THE STATED ISSUE
V-AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR THE PARTY TO
PRESENT ITS CASE - UPON RECEIPT AND REVIEW OF THESE MEMORANDUMS
THE COURT WILL SET A TRIAL DATE FOR THIS CASE - BY M L EBERT JR J
- COPIES MAILED 09-21-06
-------------------------------------------------------------------
10/19/2006 ORDER OF COURT - 10-19-06 - IN RE: NON-JURY TRIAL HELD ON 12-20-06
AT 10:30 AM IN CR 5 CUMB CO COURTHOUSE - A VIEW OF PROPERTY SHALL
TAKE PLAAEE ON 12-18-06 AT 4 PM - THE VIEW WILL BE LIMITED TO THE
COURT AND THE ATTYS - BY ML EBERT JR J - COPIES MAILED 10-19-06
-------------------------------------------------------------------
1/23/2007 ORDER OF COURT - 01-23-07 - IN RE:
ENTERED IN FAVOR OF PLFFS AND THE PLFFSESHALL BE JUDGMENT SHALL BE
QWARDED AN
EASEMENT BY PRESCRIPTION FOR INGRESS AND EGRESS TO AND FROM THE
PLFFS' PROPERTY AND ACROSS DEFTS' PROPERTY - FURTHER ORDERED THAT
THE DEFTS SHALL REMOVE ALL GATES-POSTS-FENCES-BARRIERS OR OTHER
OBSTRUCTIONS WHICH THEY MAY HAVE PLACED AROSS THE PRESCRIPTIVE
EASEMENT COMMONLY REFERRED TO AS CABIN LANE - BY ML EBERT JR J -
COPIES MAILED 01-23-07
-------------------------------------------------------------------
2/01/2007 DEFENDANT'S MOTION FOR POST-TRIAL RELIEF - BY SALLY J WINDER ATTY
FOR DEFTS
-------------------------------------------------------------------
2/27/2007 PETITION FOR FINDING OF CONTEMPT - BY H ANTHONY ADAMS ATTY FOR
PLFFS
-------------------------------------------------------------------
3/02/2007 ORDER - 02-28-07 - IN RE: HEARING ON 05-18-07 AT 10 AM IN CR 5
CUMB CO COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 03-02-07
-------------------------------------------------------------------
5/18/2007 ORDER OF COURT - 05-18-07 - IN RE: DEFT'S MOTION FOR POST TRIAL
RELIEF IS DENIED - BY M L EBERT JR J - COPIES MAILED 05-18-07
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - -
2
********************************************************************************
* Escrow Information
* Fees & Debits Bw*Bal*** mts/Adl End Bal
***********************************P ****** *******************************
COMPLAINT 35.00 35.00 .00
TAX ON CMPLT .50 .50 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION 5.00 5.00 .00
JCP FEE 10.00
-------------- 10.00
--- .00
55.50 ------- ---
55.50 ---------
.00
********************************************************************************
* End of Case Information
********************************************************************************
TRUE COPY FROM RECORD
In Testimony whereof, I here unto set my hand
and the seal of said Court at Carlisle, PAD
This ........ day of ........
X L ...............
Proth ... .
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onot4.
WILLIAM E. FERRIS & : IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs CIVIL ACTION
vs
BRUCE ROTZ & NO. 04 - 6370 CIVIL TERM
PATSY ROTZ,
Defendants
REQUEST FOR TRANSCRIPT
A Notice of Appeal having been filed in this matter, the official court reporter is
hereby ordered to produce, certify and file the transcript in this matter in conformity with
Rule 1922 of the Pennsylvania Rules of Appellate Procedure.
w
Dated: June/ 5' , 2007 ai4x,--i
Sally J. V*der, (Atty. I.D. #24705)
Attorney or Defendants, Bruce Rotz and
Patsy Rotz
9974 Molly Pitcher Highway
Shippensburg, PA 17257
Telephone (717) 532-9476
WILLIAM E. FERRIS & : IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs CIVIL ACTION
vs
BRUCE ROTZ & NO. 04 - 6370 CIVIL TERM
PATSY ROTZ,
Defendants
PROOF OF SERVICE
I hereby certify that I am on this day serving the foregoing documents upon the
persons and in the manner indicated below which service satisfies the requirements of
Pa.R.A.P. 121:
Service by first class mail_ addressed as follows:
H. Anthony Adams, Esquire
49 West Orange Street
Shippensburg, PA 17257
(Counsel for William E. Ferris & Kerri E. Ferris)
Service in person as follows:
Honorable M.L. Ebert, Jr.
c/o Beth Stambaugh, secretary to Judge Ebert
Judges' Chambers
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Marie Farley
Officiel Court Reporter
Court Reporters' Offices
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Dated: June I E, 2007
District Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Attorney for Defendants, Bruce Rotz and
Patsy Rotz
9974 Molly Pitcher Highway
Shippensburg, PA 17257
Telephone (717) 532-9476
J Coe
Sally J. der, (Atty. I.D. #24705)
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WILLIAM E. FERRIS & IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
BRUCE ROTZ &
PATSY ROTZ,
DEFENDANTS NO. 04-6370 CIVIL
ORDER OF COURT
AND NOW, this 18th day of June, 2007, the Court being in receipt of a
Notice of Appeal in the above captioned matter,
IT IS HEREBY ORDERED AND DIRECTED that the record of the trial
from December 20, 2006 shall be transcribed.
ally J. Winder, Esquire
Attorney for Appellant
X. Anthony Adams, Esquire
Attorney for Appellee
bas
C'U-A pon. bPl"?
By the Court,
M. L. Ebert, Jr.,
y,
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WILLIAM E. FERRIS & IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
BRUCE ROTZ &
PATSY ROTZ,
DEFENDANTS NO. 04-6370 CIVIL
ORDER OF COURT
AND NOW, this 18th day of June, 2007, the Court being in receipt of a
Notice of Appeal in the above captioned matter, the Appellant is ordered to file
with this Court a concise statement of matters complained of on appeal no later
than July 6, 2007.
By the Court,
M. L. Ebert, Jr., J.
ally J. Winder, Esquire
Attorney for Appellant
X. Anthony Adams, Esquire
Attorney for Appellee
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COMMONWEALTH OF PENNSYLVANIA
. t
Superior Court of Pennsylvania
Karen Reid Bramblett, Esq. Middle District
Prothonotary
James D. McCullough, Esq. June 20, 2007
Deputy Prothonotary
Mr. Curtis R. Long
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Re: 1039 MDA 2007
William E. Ferris and Kerri E. Ferris
V.
Bruce Rotz and Patsy Rotz, Appellant
Dear Mr. Long:
100 Pine Street. Suite 400
Harrisbure. PA 17101
717-772-1294
www,superior. court. state.pa. us
Enclosed please find a copy of the docket for the above appeal that was recently filed in the
Superior Court. Kindly review the information on this docket and notify this office in writing if
you believe any corrections are required.
Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517,
for completion and filing. Please note that Superior Court Dockets are available on the Internet
at the Web site address printed at the top of this page. Thank you.
Very truly yours,
Karen Reid Bramblett, Esq.
Prothonotary
TP
Enclosure
2:37 P.M.
Appeal Docket Sheet
Docket Number:
Page 1 of 2
June 20, 2007
1039 MDA 2007
Z%L
William E. Ferris and Kerri E. Ferris
V.
Bruce Rotz and Patsy Rotz, Appellant
Initiating Document: Notice of Appeal
Case Status: Active
Case Processing Status: June 18, 2007 Awaiting Original Record
Journal Number:
Case Category: Civil CaseType: Civil Action Law
Consolidated Docket Nos.: Related Docket Nos.:
SCHEDULED EVENT
Next Event Type: Receive Docketing Statement Next Event Due Date: July 5, 2007
Next Event Type: Original Record Received Next Event Due Date: July 25, 2007
COUNSEL INFORMATION
Appellant Rotz, Bruce and Patsy
Pro Se: Appoint Counsel Status:
IFP Status:
Appellant Attorney Information:
Attorney: Winder, Sally J.
Bar No.: 24705 Law Firm:
Address: 9974 Molly Pitcher Hwy
Shippensburg, PA 17257
Phone No.: (717)532-9476 Fax No.:
Receive Mail: Yes
E-Mail Address:
Receive E-Mail: No
Appellee Ferris, William E. and Kerri E.
Pro Se: Appoint Counsel Status:
IFP Status: No
Appellee Attorney Information:
Attorney: Adams, H. Anthony
Bar No.: 25502 Law Firm: Cumberland County Public Defender's Office
Address: 49 W Orange St Ste 3
Shippensburg, PA 17257-1813
Phone No.: (717)532-3270 Fax No.: (717)532-6673
Receive Mail: Yes
E-Mail Address:
Receive E-Mail: No
Superior Court of Pennsylvania
6/20/2007 3023
2:37 PA
Appeal Docket Sheet
Docket Number: 1039 MDA 2007
Superior Court of Pennsylvania
Page 2 of 2
June 20, 2007
FEE INFORMATION
Paid
Fee Date Fee Name Fee Amt Amount Receipt Number
6/15/07 Notice of Appeal 60.00 60.00 2007SPRMD000550
TRIAL COURT/AGENCY INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland Division: Civil
Date of Order Appealed From: May 18, 2007 Judicial District: 9
Date Documents Received: June 18, 2007 Date Notice of Appeal Filed: June 15, 2007
Order Type: Order Entered
Judge: Ebert, Jr., Merle L.
Judge
OTN:
Lower Court Docket No.: 04-6370 Civil Term
ORIGINAL RECORD CONTENTS
Original Record Item Filed Date Content/Description
Date of Remand of Record:
BRIEFS
DOCKET ENTRIES
Filed Date Docket Entry/Document Name Party Type Filed By
June 18, 2007 Notice of Appeal Filed
Appellant Rotz, Bruce and Patsy
June 20, 2007 Docketing Statement Exited (Civil)
Middle District Filing Office
6/20/2007 3023
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WILLIAM E. FERRIS & : IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs CIVIL ACTION
VS
BRUCE ROTZ & NO. 04 - 6370 CIVIL TERM
PATSY ROTZ,
Defendants
DEFENDANTS' CONCISE STATEMENT OF MATTERS
COMPLAINED OF ON APPEAL
Defendants Bruce Rotz and Patsy Rotz, by and through their undersigned counsel, file the
following Concise Statement of Matters Complained of on Appeal:
1. The Court erred by failing to find that Plaintiffs had not acquired an easement by
prescription across the property of Defendants.
2. The Court erred by failing to find that Plaintiffs had not proved, by clear and
convincing evidence, the elements of continuous use and adverse use of the claimed
easement track across the property of Defendants for the statutory period of 21 years.
3. The Court erred by failing to find that the claimed easement track across the property
of Defendants passes through unenclosed woodland as that term is defined in 68 P.S.
§ 411 and has been interpreted by the Pennsylvania courts, and, therefore, Plaintiffs were
statutorily barred from acquiring an easement by prescription across the property of
Defendants.
R spectfully ubmitted,
5) ?' U Sally inder, Attorney for Defendants
9974 Molly Pitcher Highway
Shippensburg, PA 17257
(717) 532-9476
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WILLIAM E. FERRIS & : IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs CIVIL ACTION
VS
BRUCE ROTZ & NO. 04 - 6370 CIVIL TERM
PATSY ROTZ,
Defendants
PROOF OF SERVICE
I hereby certify that I am on this day serving the foregoing documents upon the
persons and in the manner indicated below which service satisfies the requirements of
Pa.R.A.P. 121:
Service by first class mail addressed as follows:
H. Anthony Adams, Esquire
49 West Orange Street
Shippensburg, PA 17257
(Counsel for William E. Ferris & Kerri E. Ferris)
Service in person as follows:
Honorable M.L. Ebert, Jr.
c/o Beth Stambaugh, secretary to Judge Ebert
Judges' Chambers
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Dated: July __T , 2007
2vjujj-,9--
§ally J Winder, (Atty. I.D. #24705)
Attorney for Defendants, Bruce Rotz and
Patsy Rotz
9974 Molly Pitcher Highway
Shippensburg, PA 17257
Telephone (717) 532-9476
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
William E. Ferris and Kerri E. Ferris
Plaintiffs
vs.
Bruce Rotz and Patsy Rotz
Defendants
No.04-6370 Civil
Civil Action - Law
Judge : M.L. Ebert, Jr.
PETITION FOR FINDING OF CONTEMPT
Now come the Petitioners, William E. Ferris and Kerd W. Ferris, by and through
their attorney, H. Anthony Adams, Esquire and set forth the following:
1.
An order of court to enforce an easement was entered on November 28, 2006. A
copy of the order is attached hereto and made a part hereof.
2.
The Defendants have failed to comply with the order and have not performed any
of the acts required by that order and have refused and continue to refuse to allow
Plaintiffs access to their land.
3.
The Plaintiffs have again been required to seek counsel to enforce the order and
will be required to pay legal fees in the amount of $1,000.00. A prior petition remained
unanswered for months.
4.
Plaintiffs have now been denied access and use of their property for a period in
excess of 3 years and for a period of 6 months since the Court Order. The Plaintiffs ask
for punitive damages of $5,000.00.
5.
The Defendants filed an appeal to the Superior Court but ye not requested a stay
of the Court Order nor have they requested a bond amount to st bond.
Wherefore, Plaintiffs request your Honorable Court enter an order to hold a hearing
to determine if Defendants are in contempt of court order to award punitive damages and
to assure compliance with the Court Order incarcerate Defendants setting as a condition to
purge, compliance with the court order and payment of the costs of proceedings, legal
fees of $1,000.00 and punitive damages.
H. Anthony ams, Esquire
Attorney for Plaintiff
49 W. Orange Street, Suite 3
Shippensburg, PA 17257
(717)-532-3270
VERIFICATION
I verify that the statements made in this Petition are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities.
Date:
03/97 WILLIAM E. FERRIS
Date. 3 7
KERRI E. FERRIS
........ a 1-""10 C7T7Q?
KERRI E. FERRIS
Plaintiffs
V.
BRUCE ROTZ and PATSY ROTZ,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6370 CIVIL
ORI3ER OFF -COURT
AND NOW, this 22nd day of January, 2007, after non jury trial- in this case and
-upon consideration of the griefs filed by the parties, and the Court having conducted a
view of the property in question;
IT IS HEREBY ORDERED AND: DfRECTiE-fl that Judgment shall be entered in
favor flf the Plaintiffs and the Plaintiffs, stall be awarded an easement by prescription for
ingress and egress to and from the Plaintiffs' property and across Defendants' property.
IT IS FURTHER ORDERED AND DIRECTED that the -Defendants shall -remove
all gates, posts, fences, harriers, or otter obstre om which they may have placed
across the prescriptive easement comorrly referred to as Cabin Lane.
$ythe Court,
M_ L Ebert, Jr,_ J
H. Anthony Adams, Esquire
Attomey for Plaintiffs
Sally J. Winder, Esquire
Attomey for Defendants
Court Administrator
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LAW OFFICE
H. ANTHONY ADAMS
49 WEST ORANGE STREET, SUITE 3
SHIPPENSBURG, PENNSYLVANIA 17257
TELEPHONE (717) 532-3270
FAX (717) 532-6673
July 6, 2007
Prothonotary
Cumberland County Courthouse
Carlisle, PA 17013
RE: Ferris v Rotz
No. 04-6370
Dear Prothonotary:
Please file the enclosed petition to the stated term and number. All
matters in this case have been decided by the Honorable Judge M. L. Ebert, Jr.
Sincerely,
H. Anthony Adams
HAA: dmb
Enclosure
•
WILLIAM E. FERRIS and
KERRI E. FERRIS,
Plaintiffs
V.
BRUCE ROTZ and
PATSY ROTZ,
Defendants
IN RE: NON-JURY TRIAL
•
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6370 CIVIL TERM
CIVIL ACTION - LAW
Proceedings held before the HONORABLE
M. L. EBERT, Jr., J., Cumberland County
Courthouse, Carlisle, Pennsylvania, on
December 20, 2006, in Courtroom Number 5.
APPEARANCES:
H. ANTHONY ADAMS, Esquire
For the Plaintiffs
SALLY J. WINDER, Esquire
For the Defendant
•
INDEX TO WITNESSES
•
WITNESS PAGE
William Edward Ferris
Direct examination by Mr. Adams 4
Cross-examination by Ms. Winder 24
Redirect examination by Mr. Adams 30
Bruce K. Rotz
Direct Examination by Mr. Adams 31
Cross-examination by Ms. Winder 38
Further examination by Mr. Adams 52,58,61
Further examination by Ms. Winder 55,61
Bruce Rotz, Jr.
Direct examination by Ms. Winder 63
Cross-examination by Mr. Adams 71
Redirect examination by Ms. Winder 76
INDEX TO EXHIBITS
FOR THE PLAINTIFF IDENTIFIED ADMITTED
1 - Deed dated 8/25/72 4 4,63
2 - Deed dated 6/27/03 4 4,63
3 - Deed dated 1/21/00 4 4,63
4 - Deed dated 6/22/79 4 4,63
5 - Deed of Easement
Dated 11/10/89 4 4,63
6 - Photograph 12 63
7 - Photograph 14 63
8 - Photograph 14 63
9 - Photograph 15 63
FOR THE DEFENDANT
(No exhibits presented.)
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1 Wednesday, December 20, 2006
2 THE COURT: Please be seated.
3 This is the time and place set for the trial
4 in the case of William Ferris and Kerri Ferris against Bruce
5 Rotz and Patsy Rotz, docketed to 04-6370 of the Civil term.
6 Are the parties ready to proceed?
7 MR. ADAMS: Yes, Your Honor.
8 MS. WINDER: Yes.
9 THE COURT: Mr. Adams, I believe you are the
10 moving party.
11 MR. ADAMS: Your Honor, prior to beginning
12 oral testimony, I am going to offer under Rule 902 of the
13 Rules of Evidence, certified copies of documents from the
14 Office of the Recorder of Deeds. Copies have been given to
15 counsel for the Respondent.
16 MS. WINDER: Defendant.
17 MR. ADAMS: Under Section 42, 6103, I think
18 you can accept the FAX of these documents as well as the
19 documents themselves into evidence. They have been marked
20 Plaintiff's Exhibit 1 through 5.
21 THE COURT: Any objection?
22 MS. WINDER: No objection, Your Honor.
23 MR. ADAMS: The second thing, just for
24 housekeeping purposes, and for counsel, we have two counts
25 in our complaint. Count 1, we might have three -- if I
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1 separated damages -- we have three counts in our complaint.
2 We are proceeding only as to Count 2. That is the adverse
3 use. I think that actually is the fact pattern that will be
4 presented today. So we are not proceeding under the theory
5 of expressed easement or under the theory of easement by
6 necessity.
7 THE COURT: I am assuming you have no
8 objection to that.
9 MS. WINDER: He may withdraw his count if he
10 chooses.
11 THE COURT: All right. Plaintiff Exhibits 1
12 through 5 are admitted to the record. You may proceed, Mr.
13 Adams.
14 MR. ADAMS: I would call William Ferris.
15 Whereupon,
16 WILLIAM EDWARD FERRIS
17 having been duly sworn, testified as follows:
18 DIRECT EXAMINATION
19 BY MR. ADAMS:
20 Q Would you state your name, please?
21 A William Edward Ferris.
22 Q Mr. Ferris, where do you live?
23 A I live at 51 Chestnut Grove Road,
24 Shippensburg, Pennsylvania.
25 Q Other than your residence at Chestnut Grove
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1 Road, do you own any other real estate in the Commonwealth
2 of Pennsylvania?
3 A Yes, I do.
4 Q And what is that?
5 A I own some mountain ground off Cabin Lane off
6 Walnut Dale Road.
7 Q And that mountain ground that you own on
8 Cabin Lane, how far is that from your actual residence?
9 A Oh, between two and three miles.
10 Q When did you acquire the -- is part of the
11 land you own on Cabin Lane now adjacent to land owned by Mr.
12 and Mrs. Bruce Rotz?
13 A Yes.
14 Q When did you acquire that piece of ground?
15 A That piece of ground I bought in 1972.
16 Q And from whom did you buy that piece of
17 ground?
18 A From Thomas Smyth.
19 Q And what did Thomas Smyth do for a living?
20 A He was a college professor at Shippensburg.
21 Q How did it come that you purchased that
22 ground from Mr. Smyth?
23 A We moved here from Ohio to work for Boise
24 Cascade, and we rented his farm and we became friends. And
25 when I told him I would like a piece of mountain ground --
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well, a piece of ground of our own, he offered that piece to
us.
Q When you say we moved here, who do you mean?
A Kerri and I and my son, Christopher.
Q Kerri is your wife?
A Yes.
Q You say you purchased that ground in 1972?
A Yes.
Q Were you shown the ground prior to purchasing
it?
A Yes, we walked all the boundaries.
Q When you walked the -- with whom did you walk
the boundaries?
A Doctor Smyth.
Q When you walked the boundaries with Doctor
Smyth, how did you get from the hard road to the first
boundary?
A We drove up on the mountain ground, probably
halfway down or halfway across the ground on a lane.
Q And where, from where -- what township road
to your ground did that lane lead?
A Walnut Dale.
Q At any time prior to purchasing the property,
were you shown any other way, any other roads to access this
property?
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1 A No.
2 Q What did you use the land that you purchased
3 from Doctor Smyth for?
4 A Kerri and I camped on it for the first two
5 years becaus e I transferred out to Ohio for my job. And
6 then when we moved back, I put a mobile home on it, and we
7 used it as a camp and I used it for riding.
8 Q For what period of time did you have a mobile
9 home on that property?
10 A 1974 until I can't remember whether it was
11 190 or '91. I had it on there after Sally and Bob Boher
12 bought their ground. If you have that, we can pretty much
13 give you an idea of how long the mobile home was there.
14 Q When you -- how often a year would you go to
15 the property you bought from Doctor Smyth?
16 A It varied from year to year. When the cabin
17 was up there , when our mobile home was up there, we hosted
18 people for s ledding trips. We used to take horseback rides
19 up there and use it for a staging area to ride the mountain.
20 Once the mob ile home left, I was there up there once or
21 twice a year hunting grouse. And I would have to go up
22 there and check the forest. Or probably sometimes more.
23 Q During those periods of time, how would you
24 gain access to your property from Walnut Dale Road?
25 A I would drive up Cabin Lane.
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1 Q When you drove up Cabin Lane, did you have
2 permission to use Cabin Lane?
3 A No.
4 Q And when you first purchased the property, do
5 you know, were there any other houses on Cabin Lane?
6 A Yes. There was a mobile home at the lower
7 end, and right adjacent to my ground there was a cabin with
8 a swimming pool and a septic tank with a toilet. And I
9 believe that they were using spring water at that time so
10 there was a hose coming down to it.
11 And then down the lane there were two, one
12 room, I will call them shacks. The land owner at that time
13 would rent out properties to very poor people that probably
14 were drinkers or whatever. But they couldn't afford
15 anyplace else so they lived in cabins along that lane. Then
16 he had some more down at that property.
17 Q Who was the owner of the lane adjacent to
18 your property when you first purchased it?
19 A Well, I had always knew him as Sig. But I
20 understand his name is Charles Ott and Betty.
21 Q After Charles Ott -- for what period of time
22 did Charles Ott own the property?
23 A He owned the property for quite awhile. He
24 did sell another piece off to Ron Williams, and he put a
25 mobile home on it, probably in '76, down below. And at that
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1 time, by 176, there was a second mobile home on the property
2 at the upper end where Zig's son Larry lived. And then I
3 think Sig sold it eventually to Ron Williams.
4 Q During the time that Mr. Ott or prior to Mr.
5 Rotz owning the property next to yourself, was your use of
6 that road ever blocked?
7 A Never.
8 Q Did anyone ever attempt to stop you from
9 using that road?
10 A No.
11 Q Was there ever a gate placed on that road?
12 A When Bill Cain, Bill Cain lived in the mobile
13 home which he rented, I guess from Williams, Ron Williams or
14 Ron Williams' family after Ron died. And then when Sally
15 and Bob moved out of the cabin, he moved over and bought
16 that piece of ground where the cabin is, and he put his
17 mobile home there and he used that as a residence. And he
18 called me and asked me if he could put a gate because his
19 wife was upset --
20 MS. WINDER: I would object. That is
21 hearsay.
22 MR. ADAMS: Yeah. Don't tell me what he
23 said.
24 THE COURT: Sustained.
25 THE WITNESS: I said yes, you have permission
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1 to put a gate up as long as you give me a key. And I
2 preferred to have the key on a nail on the other side of the
3 shed so that anybody that I needed -- I wanted to use the
4 ground could go up and just take the key and unlock the
5 gate.
6 BY MR. ADAMS:
7 Q And do you have any idea what year that a
8 gate was firs t placed across your. --
9 A Probably 2001 maybe, or somewheres in that
10 area. After Bill Cain bought the property.
11 THE COURT: This permission you gave, you
12 gave permission to Mr. Cain.
13 THE WITNESS: Yes, I did.
14 BY MR. ADAMS:
15 Q Between 1972 when you purchased the property
16 and 2000, when you gave Mr. Cain permission to put up the
17 gate, did you use that road during that entire period of
18 time?
19 A After the gate was put up?
20 Q No. Before.
21 A Yes, every year.
22 Q And on numerous occasions during the year?
23 A On numerous occasions.
24 Q Did you ever try to hide the fact that you
25 were using that?
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1 A No. I just went up every time I felt like
2 going up to my mountain ground, I went up.
3 Q Would you tell the Judge why you felt you had
4 the right to go up there, that road?
5 A Doctor Smyth said that --
6 Q Don't tell me what Doctor Smyth said.
7 A I assumed I had a right to use it, and I just
8 used it for - - and nobody ever stopped me so I just kept
9 using it.
10 Q Did you ever make any improvements to that
11 road?
12 A No.
13 Q Was there a point in time when another gate
14 was placed across the lane?
15 A Yes. I believe there was a gate placed
16 across the bottom of the lane on a piece of property that
17 George Robinson used to own and was sold to a woman, and
18 they built a house and they put a gate up there.
19 Q Has that gate been removed?
20 A Yes, it has.
21 (Whereupon,
22 Plaintiff Exhibit No. 6
23 was marked for identification.)
24 BY MR. ADAMS :
25 Q I am going to show you what has been marked
11
1 Plaintiff Exhibit 6. One second. Who took that photograph?
2 A I did.
3 Q And when did you take the photograph?
4 A Three days ago.
5 Q And on that photograph is there a gate
6 visible?
7 A Yes, there is.
8 Q When was that gate, when was that gate placed
9 there?
10 A When Bill asked me to put a gate up, he put
11 up a two-by- four gate, which I think Mr. Rotz helped build.
12 And probably within a year and a half, that metal gate was
13 put up after that.
14 Q Who owned the property when that metal gate
15 was put ther e?
16 A Bill Cain.
17 Q The gate that is there now, does that divide
18 -- is that o n the line between your property and the
19 property of Mr. Rotz?
20 A No. It is a little bit on Mr. Rotz's side of
21 the property .
22 Q Does that gate impede your ability to get to
23 the --
24 A If I had a key it wouldn't, but I don't have
25 a key.
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Q Is there any particular reason you don't have
a key?
A When I asked Bruce, he put a key on the nail
again, and then he took it away.
Q And have you asked him to put a key back and
let you get to your property?
A Not since that time, no.
Q Did you at that time?
A The first time.
THE COURT: When was that?
BY MR. ADAMS:
Q To the best of your recollection, when did
you talk to --
A Less than two years ago, or two years ago.
Right in that area.
Q Since Mr. Rotz has owned the property, have
you had any ability to get a car to your 11 acre property?
A No. I'm sorry. Yes. When he had the key on
the nail, I did go on my property.
Q After he took the key away, have you been
able to get to your property?
A No.
Q Prior to Mr. Rotz purchasing the property,
did you know him?
A Yes, I did.
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1 Q Were you on relatively decent terms with him?
2 A We drank a few beers together and we
3 socialized some. We are both hunters.
4 Q Did you ever give him permission to hunt upon
5 your property?
6 A Yes.
7 Q Did you ever actually hunt upon your property
8 with him?
9 A I have hunted on my property when he has been
10 hunting on my property, yes, and his sons.
11 (Whereupon,
12 Plaintiff Exhibit Nos. 7 and 8
13 were marked for identification.)
14 BY MR. ADAMS:
15 Q I am going to show you what has been marked
16 as Plaintiff Exhibit 7. Could you identify that?
17 A That is a little more of a closer telephoto
18 lens. On the right-hand side is a septic mound and the
19 concrete block behind it, concrete block and septic mound
20 right there. My lane goes right up to that gate and on out
21 to the end of my lane of my property.
22 Q I am going to show you what has been marked
23 as Exhibit Number 8. Can you identify that photo?
24 A Yes. That photo was taken from my property
25 and it shows the backside of the gate and my lane going down
14
1 to the gates.
2 Q And the backside of the gate on Exhibit
3 Number 8, is that the gate that Mr. Rotz and Mr. Cain placed
4 there?
5 A Yes.
6 (Whereupon,
7 Plaintiff Exhibit No. 9
8 was marked for identification.)
9 BY MR. ADAMS:
10 Q And I am going to show you what has been
11 marked Exhibit Number 9, can you identify that?
12 A Yes. That is a photograph of my lane and the
13 established gravel and stone that has been on there ever
14 since I owned it.
15 Q I am going to ask you to look at Exhibit
16 Number 6. Would you describe generally what you see on
17 Exhibit 6 as far as trees, buildings?
18 A I see an acre and a half field with a walk
19 with a building on it, which has had a building on it ever
20 since I have owned my property. There was a cabin up there
21 that was rented in 1973 or '74, and I think the man's name
22 that rented it was a Jones, but I couldn't find out who it
23 was. It was another one of those that Sig used to, as I
24 said, wind up letting them have it for a couple hundred
25 dollars or a hundred dollars a month just to have a place to
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1 live.
2 Q When you say Sig, you are referring to the
3 owner, Charles Ott?
4 A Yes.
5 Q You are testifying that when you purchased
6 your property, there was already a building on the property
7 now owned by Mr. Rotz?
8 A Yes, there was a building pretty much in the
9 same place as that mobile home is. And down in front of
10 that was a swimming pool.
11 Q When you are referring to that mobile home,
12 you are referring to the mobile home on the property of
13 Bruce and Patsy Rotz?
14 A Yes.
15 Q And do you see any, in Exhibit 6, is that --
16 yes, that one, is that covered by trees in any way or --
17 A No. In fact, the trees that are here in the
18 front were used for a picnic ground and a few benches at one
19 time and we -- Sig Ott also had a horseshoe pit there.
20 Q So the character of that particular land,
21 when you purchased your land, is the general character of
22 the land as far as trees, vegetation, use, is it the same as
23 it was when you purchased your ground?
24 A Well, now I understand it is a permanent
25 residence. When I purchased the ground it was a recreation
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1 cabin.
2 Q Were there any other trees on it that have
3 just been removed or --
4 A Yeah. I think there was some pine trees that
5 bordered or t hat were on each side of the entrance to the
6 porch to the cabin.
7 Q Now, I want you to look at the exhibit, if
8 you would, I think it is Exhibit Number 8.
9 A Okay.
10 Q And that is the exhibit you said was a
11 picture from your ground back toward the fence.
12 A That's right.
13 Q On that particular ground -- particular
14 picture, what is the nature of the area surrounding the lane
15 on your land?
16 A There is a few trees.
17 Q And is it fair to say that your land becomes
18 basically for est land?
19 A My, my land is a forest. Yes, my land.
20 Q Do you have any grass planted anywhere on
21 your land?
22 A No.
23 Q Do you have your land enclosed by any fences
24 or any other buildings?
25 A No. I sold --
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1 Q On Exhibit 8, there appears -- next to the
2 fence there appears to be another object. Can you tell me
3 what that is ?
4 A That is a shed, a storage shed I believe.
5 Q And the storage shed, is that also visible on
6 Exhibit Numb er 6?
7 A Yes, I believe that would be the one to the
8 right of the commercially provided shed.
9 Q On Exhibit 6, are there any trees or any
10 forest land that you see on that picture in front of that
11 shed?
12 A No.
13 Q And where you see the back of the shed there
14 are some trees, but is there any forest land in back of that
15 shed?
16 A No, the forest land actually begins on my
17 ground.
18 Q On this picture, can you, using the picture
19 for a guide, tell us roughly where your line is?
20 A My line starts about here. (Indicating)
21 Q When you say here, you are going to have to
22 tell us.
23 A About at the lower end of this photograph.
24 Q At the bottom of the photograph it appears --
25 I don't want to lead you -- but it appears there is a rock
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1 on the right-hand side.
2 A Right.
3 Q And then you.
4 A I might be one tree too close --
5 Q One tree?
6 A -- to the boundary.
7 Q Okay. And then you indicated or took your
8 hand across the bottom of that photograph. Is that correct?
9 A Yes.
10 Q Are you aware, are there any utilities to
11 your property?
12 A No, there are not.
13 Q Are there any utilities running across the
14 the properties in question, either yours or Mr. Rotz's?
15 A In my property or Mr. Rotz's property?
16 Q Either.
17 A Yeah. Mr. Rotz has power.
18 Q Are there any water lines that run through
19 your property?
20 A No.
21 Q Are there any water lines that run in what is
22 known as Cabin Lane?
23 A Yes.
24 Q And do you know who owns that water line?
25 A Shippensburg Water Supply.
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1 Q Do you know for a fact whether the homes on
2 Cabin Lane are supplied with public water?
3 A I know for a fact that up until Ron Williams'
4 ground they are.
5 Q And there are -- are there any utility poles
6 on Cabin Lane or along Cabin Lane?
7 A Yes, there are.
8 Q The area from Walnut Dale Road to the fence
9 shown in Exhibit 6, how would you characterize that
10 particular area?
11 A I would characterize that as home sites.
12 Q And do you have any idea how many home sites
13 there are coming from that particular -- from Walnut Dale
14 Road to that gate?
15 A On Cabin Lane itself or home sites adjacent
16 to Cabin Lane?
17 Q Along Cabin Lane itself.
18 A There are Stanley and Georgianna, and Stacy,
19 and there is a home site on the right-hand side going up
20 that doesn't have a mobile home on it now. I believe it was
21 condemned. And then there is another mobile home on the
22 left-hand side, and then this property here.
23 Q So if I am correct, that is five?
24 A Five. Plus there are two adjacent properties
25 to that property, but the houses front on Walnut Dale Road.
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I Q I had asked you before if there is any other
2 way to get, to access your property other than through that
3 gate.
4 A That is the only way that I can access my
5 property.
6 Q It has been suggested -- is there an access
7 from a road known as Thompson Hollow Road?
8 A At one time there was a road, but DCNR, the
9 Department of Conservation and Natural Resources own that
10 road. And they pretty much plowed that whole road out of
11 there. There is no access from the Thompson Hollow, and
12 beside it, two, two and a half miles from Thompson Hollow,
13 which is a forest access road also.
14 Q Do you have any idea what the distance is
15 from the edge of the Rotz property to your property that you
16 are -- that you have used as a right-of-way?
17 A I think, yes, maybe six, seven hundred yards.
18 I have never measured it.
19 MS. WINDER: I'm sorry, I missed that. That
20 is from where to where?
21 THE WITNESS: Walnut Dale to the gate.
22 BY MR. ADAMS:
23 Q That was from Walnut Dale to the gate. Do
24 you have any idea what the distance is that you actually --
25 that Cabin Lane crosses the Rotz property?
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1 A Maybe 150 feet.
2 Q Does anyone live upon your 11 acre property
3 at this point in time?
4 A No.
5 Q Do you intend to move to your 11 acre
6 property?
7 A We don't intend to move to our 11 acre
8 property at this time.
9 Q At this time, what do you do with that?
10 A It is a forest. It is a commercial forest.
11 I have sold logs off of it. Everything over nine inches. I
12 do a selective cut on it every 20, 30, 40 years.
13 Q When you sell logs off of it, how do the
14 logging trucks get on and off your property?
15 A They drive down Cabin Lane.
16 Q Have they ever come in from Thompson Hollow
17 or from any other direction?
18 A Never.
19 Q How many times do you think you have sold
20 logs in the past?
21 A I have sold logs to Coldmsith, and then I
22 sold pieces of -- or firewood to various people, including
23 Bob Boher.
24 Q From your ownership of the property in 1972,
25 until Rotzs' purchased their acre in 2003, has anyone every
22
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1 stopped you from using Cabin Lane?
2 A Never.
3 Q Have you used it continuously since that
4 time?
5 A Yes, I have.
6 Q When you would use it -- I think I may have
7 asked you -- but did you try to hide your useage or in any
8 way sneak to your property?
9 A No. I waved to people. I stopped and
10 sometimes drank beer with people, when I drank beer.
11 MR. ADAMS: That is all I have.
12 THE COURT: You talked about foresting the
13 nine inch logs every 20 or so years. I am assuming that the
14 firewood cutting is more routine?
15 THE WITNESS: In the dead and dying trees.
16 THE COURT: Do you do that every year?
17 THE WITNESS: No. When somebody needs some I
18 do it. I used to do it a lot when we burned a wood stove,
19 but we don't do it now.
20 THE COURT: That is more frequent than a
21 cutting every 20 years.
22 THE WITNESS: Yes.
23 THE COURT: I just want to cut to the quick.
24 What is your opinion of what happened such that you can't
25 use this road anymore? What went wrong here?
23
9 0
1 THE WITNESS: My opinion is that Bruce Rotz
2 and his family have decided to buy an acre and a half of
3 ground and isolate everything else, and they have their own
4 private deer hunting preserve.
5 THE COURT: Cross-examine.
6 CROSS-EXAMINATION
7 BY MS. WINDER:
8 Q Mr. Ferris, you are saying that your 11 acres
9 plus is unenclosed forest land, is that correct?
10 A It is a forest. I don't know, understand all
11 the legal things of unenclosed.
12 Q There are no fences through that property,
13 are there?
14 A No.
15 Q And you bought a tract adjacent to yours?
16 A Yes, I did.
17 Q So do you own from the Rotz property up to
18 the forest land that is owned by the Commonwealth of
19 Pennsylvania?
20 A Yes, I do.
21 Q And at the top of that ridge are you aware
22 that there is a DCNR road?
23 A No, there is not.
24 Q And you say that you assumed that you had a
25 right to use that Cabin Lane. Is that right?
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1 A I have always used Cabin Lane.
2 Q And in 1972 when you bought your property,
3 Sig Ott owned a lot of the ground along Cabin Lane, did he
4 not?
5 A Yes.
6 Q And he allowed you to use Cabin Lane?
7 A I always used Cabin Lane. He didn't allow me
8 to use it.
9 Q Mr. Adams asked you some questions about
10 Plaintiff's Ex hibit Number 8, a photograph --
11 A Okay.
12 Q -- and asked you about your property line.
13 And I believe that you said that your property line is
14 almost at the bottom of the photograph?
15 A It comes like this, (Indicating) but then my
16 other property line goes this way. (Indicating)
17 Q Okay. And you are in that picture standing
18 on your proper ty looking on to Mr. Rotz's property, is that
19 fair to say?
20 A Yes.
21 Q Is it also fair to say in that photograph
22 that there are trees between you and what I believe you
23 pointed out to be a shed on Mr. Rotz's property?
24 A Yes, there is some small trees there.
25 Q In that photograph, Plaintiff Exhibit 8, it
25
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1 is clear that the gate is on Mr. Rotz's property then, is it
2 not?
3 A Yes.
4 Q And on either side of that gate there is no
5 fence, is tha t a fair statement?
6 A Okay.
7 Q And there is no fence on the boundary between
8 your property and Mr. Rotz's property, is there?
9 A No.
10 Q And is there at some point a corner where the
11 state forest land meets Mr. Rotz's property and your
12 property?
13 A Yes, there is.
14 Q And there is no fence at that point, is
15 there?
16 A No.
17 Q And you have just indicated to us using
18 Plaintiff Exh ibit 8 that your other property would be on the
19 left-hand sid e of that photograph?
20 A Yes.
21 Q And that would be to the west of Mr. Rotz's
22 property?
23 A Pretty much. I don't have a compass up there
24 to know exact ly, but I would say west is -- westerly
25 direction.
26
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1 Q Well, if you are heading from Walnut Dale
2 Road up Cabin Lane, you are going generally in a southerly
3 direction, is that fair to say?
4 A On Rotz's property it would be probably a
5 southerly direction, yes. But coming up Cabin Lane, it
6 would be more of an easterly direction.
7 Q You lined up Cabin Lane and you come up the
8 mountain. Is that fair to say?
9 A Yes.
10 Q I will show you a copy of -- let me use the
11 exhibit -- I will show you what has been marked as Plaintiff
12 Exhibit 4. I will tell you that this is a document that was
13 marked as a true and correct copy from the Recorder's office
14 of a deed between Charles E. Ott and Betty M. Ott and Ronald
15 A. Williams and Catherine M. Williams. All right. And I
16 will show you the third page of that exhibit and ask you if
17 you have seen that copy of a survey before?
18 A Yes. I have seen that copy right there from
19 Tony's papers.
20 Q Do you recognize that as the general outline
21 survey of the property that Mr. Rotz owns?
22 A Yes. I think. I don't know. I have never
23 really walked the boundaries on that acre and a half.
24 Q Do you believe that that survey represents
25 the property t hat Mr. Rotz owns?
27
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•
1 A Yes.
2 Q And do you see a north arrow on that survey?
3 A Yes.
4 Q And do you see that on that survey there is
5 an area that is marked private road --
6 A Yes.
7 Q -- dirt. And then there is a notation to
8 T-323?
9 A Okay.
10 Q Township road?
11 A Yeah.
12 Q And that township road is Walnut Dale Road?
13 A Yes, I believe.
14 Q So if you are coming from Walnut Dale Road to
15 Mr. Rotz's p roperty and your property, you are going in a
16 southerly di rection, are you not?
17 A Okay, yes.
18 Q You are telling us that you own a tract to
19 the west of that tract?
20 A I own a tract to the west of -- do you have
21 that picture too?
22 Q I don't have the picture. I believe it is
23 underneath t hat other exhibit.
24 A I own a tract from this point west. That
25 would be adj acent to this line, and also adjacent to my line
28
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•
1 this way. (Indicating)
2 Q And there are no fences on that tract, are
3 there?
4 A No. It is a forest.
5 Q There is no fence through the forest that
6 divides then your boundary on that side from Mr. Rotz's
7 property?
8 A No.
9 Q Are you familiar with the location of the
10 septic system on Mr. Rotz's property?
11 A Yes.
12 Q And this gate that you say is shown in those
13 pictures, the metal gate --
14 A Sure.
15 Q -- is how many feet from the septic system,
16 do you know?
17 A I have no idea. Ten, fifteen or twenty feet.
18 Q And do you know that the septic lines come
19 down across that area?
20 A They did not come down across that area until
21 Bill Cain put the septic there. The septic was originally
22 up on the other side of the lane.
23 Q But you are aware that there are septic lines
24 in there now?
25 A Yes.
29
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1 Q You are aware that is the septic system from
2 Mr. Rotz's property?
3 A Yes.
4 Q And you currently have no cabin or residence
5 or mobile home on your property, is that right.
6 A Not at this point.
7 Q When was it that you last commercially logged
8 your tract?
9 A 1986, I think. It might have been '87.
10 Q And at that time did Mr. Ott own the property
11 that is now ow ned by Mr. Rotz?
12 A I can't remember at that time whether Sig
13 owned the prop erty or whether Ron Williams had already
14 bought it.
15 MS. WINDER: I have no other questions.
16 THE COURT: Redirect.
17 REDIRECT EXAMINATION
18 BY MR. ADAMS:
19 Q Since Mr. Cain put the septic line where it
20 is currently, did you continue to use that lane?
21 A Yes, I did.
22 Q Have you ever received any flows that there
23 had been damage or anything to that line?
24 A No, I have not.
25 Q Just for clarification, on Plaintiff Exhibit
30
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1 4, would you tell us which piece of property is the property
2 that you currently own?
3 A I ow n this piece of property from here.
4 (Indicating)
5 Q Now, you are indicating with your fingers,
6 but is there a name set forth?
7 A Hira m Highlands.
g Q And where the property is set forth as Hiram
9 -- Mr. Highlands, i s that now your piece of land?
10 A That is my piece. And I also own a piece of
11 a Hippensteel down.
12 MR. ADAMS: That is all I have.
13 THE COURT: Recross.
14 MS. WINDER: I have no other questions.
15 THE COURT: Sir, you may step down. Thank
16 you very much.
17 THE WITNESS: Thank you.
18 MR. ADAMS: Your Honor, I would like to call
19 Bruce Rotz.
20 THE COURT: Come forward, sir.
21 Whereupon,
22 BRUCE K. ROTZ
23 having been duly sworn, testified as follows:
24 DIRECT EXAMINATION
25 BY MR. ADAMS:
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Q Would you state your name, please?
A Bruce K. Rotz. Shippensburg, 457 Airport
Road.
Q Thank you. Mr. Rotz, you, you are married?
A Yes.
Q What is your wife's name?
A Patsy.
Q And you and your wife purchased a piece of
ground on Cabin Lane. Is that correct?
A Yes.
Q And you purchased that ground in 2003?
A Yes.
Q Had you ever been to that particular piece of
ground before you purchased it?
A Yes.
Q How many times would you say?
A A lot of times.
Q Did you know -- you were here in court and
heard Mr. Ferris testify concerning Charles Ott?
A Yes.
Q Did you know Mr. Ott?
A Yes.
Q You also heard him testify concerning Ron
Williams. Is that correct?
A Yes.
32
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1 Q And my understanding, there were two Mr.
2 Williamses, a Ronald, Sr., and then a Ronald named Tink,
3 T-i-n-k?
4 A Correct.
5 Q Is that correct?
6 A That is his nickname. It is Ron, Jr.
7 Q Ron Jr., thank you. Did you know both of the
8 Williamses?
9 A Yes.
10 Q When you say you have been to this piece of
11 property man y times, for how many years would you say before
12 you bought t his one acre or one and a half acres, would you
13 say?
14 A It has been years and years. I was very
15 young when I started going up in that area.
16 Q When you would go up in that area when you
17 were -- how old are you now?
18 A 62.
19 Q And when you say you were very young, how old
20 do you think you were?
21 A Oh, 18, 19.
22 Q 18. So you would say you have gone up into
23 that area fo r 50 years? I'm sorry. 40?
24 A Well, you're pretty close if you count it
25 all.
33
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1 Q And how would you get up there, up Cabin
2 Lane?
3 A It really wasn't called Cabin Lane when it
4 started. It was just a mountain lane.
5 Q Was it called mountain lane?
6 A No, just a lane in the mountain.
7 Q Was it a public road?
8 A No.
9 Q Was there any gate stopping you from going up
10 that road wh en you were young?
11 A No. Charles owned it all.
12 Q You would go from Walnut Dale Road all the
13 way up?
14 A Correct.
15 Q And now that you own the property, do you
16 still go up Cabin Lane?
17 A Yes.
18 Q Do you have a right-of-way agreement with the
19 people on Cabin Lane?
20 A Yeah. I got a -- I don't know what you call
21 it.
22 Q An easement?
23 A But it has each and every name that lived up
24 there.
25 Q Except for the first people, the first lot
34
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I was owned by Joseph Hazzard. Did you know Mr. Hazzard?
2 A Yep.
3 Q He was a developer in that area?
4 A Yep.
5 Q I didn't see his name on your right-of-way.
6 A No, not that I know of.
7 Q Okay. Do you cross the lands that was
8 previously Mr. Hazzard's to get from Walnut Dale Road to
9 where you live now?
10 A I can't answer that. I don't know who owned
11 that.
12 Q Okay. But there is a piece of ground that --
13 okay. You dec ided to keep your gate closed and not let Mr.
14 Ferris get to his ground?
15 A Yeah, I didn't want nobody running through
16 the septic sys tem.
17 Q And how long have you known Bill Ferris?
18 A About as long as I knowed Sig Ott.
19 Q And you used to do things with Mr. Ferris?
20 A Yes, sir, we drank a lot of beer together.
21 Q And you were present when the Judge came out
22 and did what is called a view, walked up that road, is that
23 correct?
24 A Correct.
25 Q And on that particular occasion you seemed to
35
• •
1 know a lot about the ground, what, where, that there was a
2 certain water a rea and where it was high, where roads lay,
3 on Mr. Ferris' ground. You seem to know a lot about it,
4 where different roads went and things of that nature?
5 A Well, I have hunted in the whole area all my
6 life.
7 Q So Mr. Ferris would let you hunt in that area
8 while he owned his grounds?
9 A Yes, he did. Yes, he did.
10 Q And then you blocked the road?
11 A No, I didn't block the road.
12 Q Who blocked the road?
13 A Bill Cain put the gate up. But Bill Cain had
14 a reason to put the gate up. Who is going to fix the septic
15 system whenever they run over it? And Bill says I wouldn't
16 give him a key --
17 Q Please, don't tell us what Mr. Cain said.
18 MS. WINDER: He is not talking about --
19 BY MR. ADAMS:
20 Q Oh, you are talking about Bill Ferris, not
21 Bill Cain. I'm sorry. I shouldn't have interrupted you.
22 Have you since you have owned the property
23 let Mr. Ferris get through that gate?
24 A No. I can't say I didn't let him. Because
25 he asked me and I said, Bill, we can't go across it because
36
I of the septic system. But I see your keys hanging on the
2 shed. That was fine and good. But I went up and there was
3 no key.
4 Deer season, I seen the game warden, Johnny
5 Lynch, and he said, I will probably be up in there Monday.
6 I said, who gave you permission to be back in there. He
7 said Bill Ferris. I said no, that is a no no. Because you
8 are going through the septic system. If you break it, I
9 will lock the gate. But the gate has never been locked.
10 The lock is hanging up there. And it has never been latched
11 that I know of.
12 Q So are you saying, sir, as far you are
13 concerned we are wasting the Judge's time and Mr. Ferris has
14 any right in the world to go through that gate?
15 A No, no, cause I don't want him crossing the
16 septic system.
17 Q You said Johnny Lynch, the game warden, said
18 Mr. Ferris said he could use this and go up that lane?
19 A Correct.
20 Q Almost as if Mr. Ferris claimed he owned it?
21 A Correct.
22 Q Did you hunt on the ground this year?
23 A Yep.
24 Q Even after Mr. Ferris can't get to the
25 ground, but you hunted on his ground?
37
1 A I don't know if it is his ground where I
2 hunted.
3 Q That's all.
4 A It is to the right of his ground I have used.
5 I used to hunt right on Bill's.
6 MR. ADAMS: That is all I have.
7 THE COURT: Cross-examine.
8 CROSS-EXAMINATION
9 BY MS. WINDER:
10 Q Mr. Rotz --
11 MS. WINDER: May we proceed as though we have
12 called him on direct?
13 THE COURT: Sure.
14 MS. WINDER: Fine.
15 BY MS. WINDER:
16 Q Mr. Rotz, you hunted up on your ground this
17 year, is that right?
18 A No. It was straight down in front of me.
19 Q Okay.
20 A Ballew or Clugh or something owns that
21 ground.
22 Q Did you not hunt on Mr. Ferris' ground then?
23 A No.
24 Q And, Mr. Rotz, on the property that you own,
25 is there forest?
38
0 0
1 A Yes.
2 Q And is there forest surrounding this gate?
3 A Yes, all but the front side. But to the
4 left, yeah. It goes right down along there. I own
5 approximately an acre and three-quarters. I would say maybe
6 30 percent to 35 percent is clear.
7 Q Now, with respect to the land between your
8 property and Walnut Dale Road, how would you describe that
9 property?
10 A I call it mountain ground.
11 Q What do you mean by mountain ground?
12 A There is nothing there, but a couple of --
13 well, there i s one house Ron Williams built. And then where
14 that Gunny Wi lliams lived in that shack, which I understand
15 he ain't allowed up there no more, that is the property
16 right beside mine.
17 Q Are there any fences around that property?
18 A No.
19 Q And other than -- is it fair to say that that
20 is the old trailer?
21 A I'd call it worse than old.
22 Q Okay. Is there a forest around that
23 property?
24 A Yes.
25 THE COURT: Just for my clarification, from
39
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LJ
•
1 Mr. Adams' questioning, is that he is basically maintaining
2 that from Walnut Dale Road up until the gate is not
3 unenclosed forest. Those are developed properties. Home
4 sites.
5 And your position is that the whole thing
6 from Walnut Dale Road up the mountain is unenclosed forest.
7 Does that clarify what we are talking about
8 here? You are saying this is all unenclosed forest. He is
9 saying there are home sites.
10 That is a fact that is going to have to be
11 determined. Right?
12 MS. WINDER: Yes, it is, Your Honor. But it
13 also pertains to the exact nature of the claimed
14 right-of-way when it is on Mr. Rotz's property also.
15 THE COURT: Okay. There is a definite
16 difference here in terms. Mr. Rotz says of my one and
17 three-quarter acres, only 35 percent is cleared and the rest
18 is forest. That is the whole nature of the area we are
19 talking about.
20 MS. WINDER: Yes. The general character.
21 THE COURT: I understand.
22 BY MS. WINDER:
23 Q Mr. Rotz, Mr. Adams asked you when you first
24 started going up in this area, and you said when you were 18
25 or 19.
40
0 0
1 A Correct.
2 Q And you said that Sig Ott owned all this
3 property then.
4 A Correct.
5 Q Did you go up there with Sig Ott?
6 A Yes and no. I have traveled with his one
7 boy, Calvin. The rest of them I kind of ducked.
8 Q So you were up there with his son, Calvin?
9 A Correct.
10 Q And Calvin gave you permission to be up
11 there?
12 A Correct.
13 Q Mr. Rotz, did you measure the distance from
14 Walnut Dale Road to your property?
15 A From the center of Walnut Dale Road, the
16 yellow line, to the edge of my property, near about, I got
17 1482 foot.
18 Q The length of Cabin Road, Cabin Lane then
19 from Walnut Dale Road to the boundary of your property is
20 the 1482 feet, is that what you are saying?
21 A Correct.
22 Q Now, when you say to the edge of your
23 property, are you saying to the first boundary that you come
24 to --
25 A Correct.
41
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1 Q -- when you are coming up Cabin Lane?
2 A Correct.
3 Q Did you go up to this area where you
4 presently own around 1972?
5 A Correct.
6 Q And when you did that, did you go up with
7 Calvin Ott?
8 A Most of the time, yeah.
9 Q And did Sig Ott go up there that you know of?
10 A Yeah.
11 Q And Mr. Ferris testified that Sig rented to
12 various people up there. Is that right?
13 A Yes.
14 Q Who had trailers or campers or something like
15 that?
16 A Sig had a trailer right beside the old cabin
17 that he rented to Larry. And then he rented the cabin to --
18 I don't know who that drunk was.
19 Q And when you say Larry, you mean Larry Ott,
20 Zig's son?
21 A Yeah.
22 Q When he rented that place, was there a picnic
23 area as Mr. Ferris testified to?
24 A Well, they used Sig Ott's cabin for the
25 picnic area.
42
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1 Q Okay. So that is the area up there in 1972?
2 A The area I own. We called it the hang out.
3 Q So Sig permitted use of that cabin?
4 A Correct.
5 Q And Sig permitted you to use that lane to get
6 up to his cabin?
7 A Correct.
8 Q You are saying that his cabin sat
9 approximately on your property?
10 A It was right on my property.
11 Q And in the approximate location where your
12 trailer is now or in a different location?
13 A No, it was near about.
14 Q Okay. Now, with respect to the septic
15 system, are yo u aware of the location of the lines, tank,
16 and sand mound ?
17 A Correct.
18 Q And where does the sand mound lie if you are
19 facing the gat e looking south towards Mr. Ferris' property?
20 A Right to the right.
21 Q Do you know approximately how far the sand
22 mound is from the western edge of that gate?
23 A Six, eight foot.
24 Q And between the gate and the sand mound is
25 there a tank?
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tanks?
ground?
the gate?
A Two tanks.
Q And do you know the approximate size of those
A No, I don't.
Q Are there lids that are visible on the
A Correct.
Q And how far are those lids from the edge of
A Well, they are probably pretty well even.
Maybe out on to the left of the gate facing in. And then
you got probably another two foot of tank setting out in the
roadway.
Q Okay. So if you say that there is a road
through the gate --
A Right.
Q -- you are saying that part of your septic
tank would actually be under that area?
A Yeah.
Q And then there are septic lines leading into
that tank?
A Correct.
Q And where do those lines come from?
A From the house trailer that I parked up there
down to the back of them, sheds and right into the tanks.
44
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1 Q And when you say them sheds, can you look at
2 Plaintiff's Exhibit 6 and tell us if those are the sheds
3 that you are referring to?
4 A Correct.
5 Q So you are saying the lines come down in back
6 of those sheds?
7 A Right behind them. Probably within five
8 foot, six foot of them.
9 Q As far as you know, that is a septic system
10 that was permitted and constructed with a proper septic
11 permit and inspected by the township, is that correct?
12 A Yes.
13 THE COURT: When was it constructed?
14 THE WITNESS: To tell you the truth, Your
15 Honor, I really don't know that. But it was there a good
16 while before I bought it.
17 BY MS. WINDER:
18 Q So you are saying that was there when Mr.
19 Cain owned the property?
20 A Yeah. Mr. Cain is the one that had the
21 septic system put on it because the lot that was there, the
22 lot that I own now, when Charles Ott owned that, that was
23 what they called the old time septic where they just dug a
24 hole and put railroad ties around it, throwed rock in it.
25 Q So it was basically a privy?
45
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1 A Correct, that is what it is.
2 Q When Sig Ott owned that cabin, he didn't use
3 that cabin as a permanent residence, did he?
4 A No. Only whenever one of them hoboes that he
5 had around, he would tell them to move in for a month or
6 two.
7 THE COURT: Are you using it for a permanent
8 residence?
9 THE WITNESS: My son.
10 THE COURT: Your son is. What is his name?
11 THE WITNESS: Ronnie.
12 BY MS. WINDER:
13 Q Mr. Rotz, Mr. Cain used that property as a
14 permanent residence, did he not?
15 A Correct.
16 Q Mr. Rotz, I am going to show you what has
17 been marked as Plaintiff Exhibit Number 5. We have agreed
18 that is a copy of a deed of easement from the Recorder of
19 Deeds office. And I want you to look at that deed of
20 easement, and do you see a line where it says between and
21 then it lists names? Do you see that, Mr. Rotz?
22 A Yeah.
23 Q And it says between Ronald A. Williams, Sr.
24 and Catherine M. Williams, his wife, and Stanley E. Rickrode
25 and Georgianna Rickrode, his wife, of Southampton Township,
46
1 Cumberland County, Grantors?
2 A Correct.
3 Q And Robert Lee Boher and Sally Ann Boher, his
4 wife, Stanley Rickrode and Georgianna Rickrode, his wife and
5 Donald Shields and Christine Shields, his wife, Grantees.
6 Is that correct?
7 A Correct.
8 Q It says that the Grantors have granted to
9 Grantees, their heirs and assigns, the free and
10 uninterrupted use, liberty and privilege of, and passage in
11 and along a certain easement, right-of-way or passageway,
12 being approximately 12 feet in width and 500 in length or
13 depth extending in a southerly direction from and out of
14 Township Route T-323, in Southampton Township, Cumberland
15 County, along the westerly side of the present lots of said
16 Grantors on the southerly side of the township road. Did I
17 read that correctly'?
18 A Yeah.
19 Q So this deed of easement is 500 feet?
20 A Correct.
21 Q It is from the township road extended for 500
22 feet?
23 A Correct.
24 Q Would that, if you know, bring the road past
25 Stanley Rickrode's property?
47
•
•
1 A It is the 500 foot near about, by Rickrode
2 and Williams old place is 500 foot.
3 Q Those would be the properties along Cabin
4 Lane at the township road end of Cabin Lane, is that
5 correct?
6 A Correct.
7 Q And Robert Boher and his wife owned the
8 property that you own now before Mr. Cain owned it, is that
9 also correct?
10 A Correct.
11 Q Do you know where Mr. and Mrs. Shields owned
12 property, if they did?
13 A That would be the next place to me, going up
14 Cabin Lane on the left, where the old junk trailer is
15 sitting. Glenny Williams lived there. But that is the
16 Shields place.
17 Q So the right-of-way granted was past
18 Williams' property and Rickrode's property for a property
19 owned by you and for a property owned next to you?
20 A The way I read that 500 foot from Williams'
21 deed line to mine, the 500 foot comes from the hard road
22 into Williams'. And then from Williams' up.
23 Q It doesn't address that?
24 A Right.
25 Q I will point out to you, I think you have
48
1 Plaintiff Exhibit 4 in front of you.
2 A Okay.
3 Q The third page of that exhibit.
4 A Oh, okay. Is this what I want? (Indicating)
5 Q Yes.
6 A Okay.
7 Q Do you recognize that as a survey of the
8 property that you presently own?
9 A Yes.
10 Q And do you see a set of dotted lines that go
11 across that piece?
12 A Yes.
13 Q And how is that marked?
14 A I don't understand how is it marked?
15 Q Are there words written in between those
16 dashed lines?
17 A Oh, yes.
18 Q What does that say?
19 A To tell you the truth, I can't see it. It's
20 small print. Private road. Am I on the right --
21 Q Yes. And the second page of that exhibit,
22 which would be the page before the one you are looking at --
23 A Okay. Where are we at here?
24 Q The second page of Exhibit 4. What does that
25 appear to be?
49
• •
1 A You mean from deed to boundaries or --
2 Q Yeah.
3 A Well, it appears to me like it is the grounds
4 that Sig used to own.
5 Q It is another piece?
6 A That is another piece.
7 Q And is there also an area that runs across
8 that that is marked Private Dirt Road?
9 A Yeah.
10 Q Mr. Rotz, when you went up Cabin Lane with
11 Calvin Ott wh en you were 18 or 19, do you remember whether
12 or not there was any gate at the location where the metal
13 gate is now?
14 A I don't recall of any.
15 Q Do you remember at any point after that that
16 there was a gate there?
17 A Yeah, when Bobby Boher lived there, he said
18 it was too much traffic, people running in and out. And I
19 helped Bobby Boher put the gate up. Bill got upset at me,
20 but Bobby just asked me to help him put it up. That is all
21 I did was hel p him.
22 Q So that is before Bill Cain owned the piece
23 that you own now?
24 A Correct.
25 THE COURT: When was that approximately?
50
0 0
1 THE WITNESS: Oh, my. Probably ten years
2 ago, I'm guessing.
3 THE COURT: So you helped Mr. Boher put up
4 this first gate that has been described as being made out of
5 two by fours.
6 THE WITNESS: It was two, two by fours and
7 wire.
8 THE COURT: You say that was approximately
9 ten years ago, to the best of your recollection?
10 THE WITNESS: Correct.
11 BY MS. WINDER:
12 Q Was it in the same location where the metal
13 gate is?
14 A Correct. The chain went into the trees that
15 it was hooked to.
16 Q And what kind of vehicles were people using
17 up in the mountain?
18 A Well, I really don't know. Only what Bobby
19 Boher said they would come up there and get to drinking back
20 in there. I would assume it was probably guys like Jerry
21 Ott.
22 Q Okay.
23 A And I can't blame him for gating it.
24 MS. WINDER: I have no other questions.
25 EXAMINATION
51
•
•
1 BY MR. ADAMS:
2 Q Mr. Rotz, your testimony was just that Mr.
3 Bother wanted this fence because there was so much traffic
4 that would come through there.
5 A Correct.
6 Q And so a lot of people were using this as a
7 road?
8 A I wouldn't say a lot. I think it was through
9 Jerry Ott and a couple of them deer night hunters.
10 Q When you purchased the property, did you see
11 the road and the roadway leading through that gate? Did you
12 see it when y ou looked at the property?
13 A Yeah, there was a lane there.
14 Q And did you know when you purchased the
15 property that Bill Ferris used this to access his property?
16 A Yeah, I have seen Bill up there. Yeah.
17 Q And you knew that was how he got to his
18 property, on that road?
19 A Yeah, I'd say, yeah.
20 Q Your testimony also was that Sig Ott used the
21 property wher e you live for residential rental purposes?
22 A I don't know if he used it, but I know some
23 of them hoboe s he let live in there for a month, two month
24 at a time.
25 Q They would use it as a residence?
52
•
•
1 A I don't know what they would call it. I just
2 called them rum dums.
3 Q And I am going to show you, there is two
4 pictures in front of you. One of them is Plaintiff Exhibit
5 6, one of them is Plaintiff Exhibit 8. You testified that
6 you thought about 35 percent of your ground was not
7 woodland. Is that correct?
8 A No, I say -- yeah, correct. You are correct.
9 Q And I would assume that what we are looking
10 at here --
11 A Yeah.
12 Q -- is part of the 35 percent that is not
13 woodland?
14 A No, that ain't mine.
15 Q Well, on yours, up here at yours, this is
16 yours where the blue trailer is, red truck?
17 A Right. Where the stone runs right down
18 through there.
19 Q You are not saying that is woodland?
20 A Well, no, I couldn't say it is woodland, not
21 where my trailer is setting.
22 Q And it certainly is not woodland up to your
23 trailer sitting right next to the gate. That trailer?
24 A Yeah.
25 Q Is it woodland up to that point?
53
•
1 A My land?
2 Q Yes.
3 A Yeah. Cause right there is my woodland.
4 (Indicating)
5 Q Okay. Behind the fence?
6 A Yes. That is mine right there. (Indicating)
7 Q You heard Mr. Ferris testify that that was
8 his ground behind the fence?
9 A That is not his ground right behind the
10 fence. This gate sets approximately in the middle of my
11 property. You're welcome to go up and measure it.
12 Q Whose gate --
13 A This metal gate is setting approximately in
14 the middle of my property.
15 Q You are saying that you have how many more
16 feet of property after that gate?
17 A I never measured it. If you would have left
18 me know, I could have measured it. But I am telling you
19 that gate is approximately setting in the middle of my
20 property. The boundary lines is way back in here, runs out
21 -- I think you were up there with us when we walked them.
22 Q I am going to show you what has been marked
23 Exhibit 4. It is the plan you had been looking at earlier.
24 A Okay.
25 Q And isn't it correct that the gate is right
54
0
•
1 down near the corner of that piece of property?
2 A No.
3 Q Where are you saying that gate is located on
4 that plan?
5 A Approximately right there. (Indicating)
6 Q And your finger is indicating the middle of
7 your --
8 A Didn't I tell you that awhile ago? I am
9 saying the center of my property is where this gate is
10 proper. And if the Judge would like us to measure it, I
11 would be more than glad to measure it, all four sides.
12 MR. ADAMS: That is all I have.
13 THE COURT: Ms. Winder.
14 EXAMINATION
15 BY MS. WINDER:
16 Q Mr. Rotz, your property isn't an equal sided
17 square, is it?
18 A No, it is kind of triangled.
19 Q And, Mr. Rotz, do you know if Mr. Ferris
20 could have accessed his property from another way when you
21 saw him up there?
22 A If I would have been Bill and had the
23 problems and saying I wouldn't let him in, I would have went
24 up to the yellow gate and come in. And they cut a road down
25 through there. And there is approximately one load of
55
•
•
1 ground that the state dumped to keep from getting to Bill's
2 property.
3 Q You heard Mr. Ferris testify that he owns
4 from your property up to the --
5 A State.
6 Q -- state land.
7 A Correct.
g Q And how far from the edge of the state land
9 would that road be?
10 A Well, it is real handy to Bill's. You are
11 welcome to come out and we will show it to you.
12 Q And he would have access to that?
13 A Providing he goes through the state. I can't
14 get into that cause I don't know nothing about that. But
15 Bobby Boher bought a piece of ground right up back of him
16 and he got a key to go in the yellow gate. And that road is
17 better than Walnut Dale Road really.
18 Q You are saying the DCNR road is better than
19 Walnut Dale Road?
20 A Yes.
21 THE COURT: Are you saying there is a load of
22 ground that the state put there to block somebody's road?
23 THE WITNESS: They cut that all off back
24 there, the state did.
25 THE COURT: Okay.
56
I THE WITNESS: When they got to running the
2 dozer and stuff around, and right where the old road used to
3 be, went out like this, the new road comes right down along
4 there where they hauled the wood out, cut off, and then
5 right; like right here would be Meals Lane. (Indicating)
6 But when they plowed this out, they just
7 pushed the ground in there. But if that ground was out of
8 there, which they might have done it for a reason, so that
9 nobody could get in and out. But all they need to do is
10 take a dozer and hit that and he has got good running.
11 BY MS. WINDER:
12 Q So that would be approximately a dump truck
13 load of dirt that is sitting on there?
14 A Approximately. It looked to me like when
15 they come down off the plow, when they made the road, that
16 they just cut it in there to back up to get another run.
17 Q But you are saying that it is accessible to
18 the road coming into Ferris' property that way?
19 A Right.
20 Q Would he be able to get logging trucks in
21 there to commercially log off the property?
22 A I would think so.
23 Q Are you concerned about logging trucks
24 running over your septic lines?
25 A I would certainly think I better be concerned
57
• •
1 if I want a septic.
2 Q Why are you saying that?
3 A Pardon?
4 Q Why are you saying that?
5 A Well, everybody knows you run over a plastic
6 line like tha t, it is going to smash it.
7 MS. WINDER: I have no other questions.
8 THE WITNESS: It can't be much more than
9 eight inches to a foot underground. It is gravity flow.
10 MS. WINDER: I have no other questions.
11 THE COURT: Mr. Adams.
12 EXAMINATION
13 BY MR. ADAMS:
14 Q You heard Mr. Ferris say you basically just
15 want to use this land for your deer hunting and for your own
16 purposes.
17 A Pardon?
18 Q You heard Mr. Ferris tell the Judge that you
19 just want to use this as your own hunting preserve and --
20 A No, that is not correct, cause there was
21 probably ten different people up in there this year.
22 Q So why are you blocking his road?
23 A For the simple reason I can't let him go
24 across my septic system.
25 Q So if he puts a cement guard across your
58
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1 septic system, is it okay with you if he uses the road?
2 A No. Because I'll tell you why.
3 Q So why are you blocking his road?
4 A I was planning on building a house on this as
5 a present for my son. And for me to get the right footage
6 for the boundary lines, the house would come right down this
7 way and in an angle, and then my garage would have to come
8 this way. (Indicating) So where am I going to be? I am
9 going to be out in this area right here. (Indicating)
10 Q So you are saying now that the problem is,
11 the reason you don't want him to use the road is because it
12 would interfere with the setbacks of your house?
13 A When I get it built. Cause it is going to
14 come right across where that trailer is setting at that
15 garage, would be the two car garage, but I have no other way
16 to set it to the boundary lines from our township.
17 Q And so you are acknowledging then that there
18 would be setback, setback areas from this Cabin Lane?
19 A I don't follow you.
20 MR. ADAMS: That is all I have.
21 THE COURT: When are you planning on building
22 this house?
23 THE WITNESS: Well, I really don't know. As
24 soon as my son wants to build it because I was going to sign
25 the property over to him.
59
0 •
1 THE COURT: Up until you decide to build the
2 house, and assuming no logging trucks, would you let Mr.
3 Ferris just drive a regular car through the gate?
4 THE WITNESS: Who is going to pay for the
5 septic system if they break it? This is all I am asking
6 you.
7 THE COURT: I understand that. But assuming
8 that they put in a concrete bunker or a bridge over it so
9 that there is no damage to the septic system at his cost,
10 would you let him use it, until you put your garage in the
11 middle of the road or something?
12 THE WITNESS: And then it will go over --
13 THE COURT: Well, whenever that happens.
14 Obviously you are entitled to put a house there.
15 THE WITNESS: Well, the only thing I am
16 saying, Your Honor, if I say yeah to that deal, and it is
17 two, three, years down the road that I build the house, and
18 then I block it again, and here we will be right back in
19 here again. And I don't want that. I want it settled that
20 it is over when it is over.
21 And I have never told Bill he couldn't drive
22 up that lane and park at the end of that gate and go to his
23 ground. I have never told Bill Ferris that. And I think
24 Bill will tell you I never told him not to come up that
25 lane.
60
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
0
EXAMINATION
BY MR. ADAMS:
•
Q If I could, as a result of that, so he can
drive up to the gate, but he can't drive upon his own ground
is what you are saying?
A That is what I am saying.
Q Okay. And why would that be, because of deer
hunting?
A Because of -- why are you concerned about
deer hunting? I don't care if I hunt deer or not.
Q Okay.
A But what I am saying is the septic system.
MR. ADAMS: Okay. Nothing further.
EXAMINATION
BY MS. WINDER:
Q
Mr. Ferris?
A
bought that,
shed. And I
drive across
up, park.
Mr. Rotz, did you
Bill come up to me
Cain told me the key
told Bill that. And
that septic system.
nave
and
was
I s
You
that discussion with
I told Bill when I
on the corner of the
aid, Bill, you can't
are welcome to come
Well, then, just like I said, deer season
come in and Johnny Lynch said to me he would be up in there,
and I said, Johnny, that ain't going to work. That is not a
61
0 0
1 public road. So I said, don't come in there cause if you
2 break that system, I will put a lock on the gate and then we
3 got a problem. Which he didn't come up.
4 Q So he didn't tell you he thought that was a
5 public road?
6 A No.
7 Q And Mr. Ferris came to you for permission to
8 come up through there?
9 A He asked me for a key. I didn't even have
10 the gate locked. The key was hanging up on the shed on a
11 nail.
12 MS. WINDER: I have no other questions.
13 MR. ADAMS: Nothing further.
14 THE COURT: Okay. Sir, you can step down.
15 MR. ADAMS: Your Honor, plaintiff rests,
16 after offering my exhibits, Plaintiff 1 through 8, I believe
17 there are.
18 THE COURT: I think there was -- for some
19 reason, I have a 9.
20 MR. ADAMS: I think Plaintiff 1 through 9.
21 THE COURT: Any objection, Ms. Winder?
22 MS. WINDER: No, Your Honor.
23 THE COURT: Plaintiff Exhibits 1 through 9
24 are admitted to the record. The plaintiff has rested. If I
25 can ask you, how much longer do you think you will be?
62
0 0
1 MS. WINDER: Not too much longer, Your Honor.
2 I was going to offer Mr. Rotz's testimony that he gave while
3 on the stand both as --
4 THE COURT: I guess I am asking are you going
5 to call another witness or --
6 MS. WINDER: I am going to call one more
7 witness.
8 THE COURT: Okay. With that then, we are
9 going to take a noon recess and we will reconvene at 1:30.
10 If I could see counsel briefly. Plaintiff Exhibit 4, if you
11 could bring that along.
12 (Whereupon, a lunch recess was taken.)
13 AFTER LUNCH RECESS
14 THE COURT: Please be seated. Ms. Winder.
15 MS. WINDER: We would call Bruce Rotz, Jr.
16 THE COURT: Come forward, sir.
17 Whereupon,
18 BRUCE ROTZ, JR.
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MS. WINDER:
22 Q For the record, would you please state your
23 name and your present address?
24 A Bruce Rotz, Jr. 294 Gilbert Road,
25 Shippensburg, Pennsylvania.
63
t •
1 Q And, Mr. Rotz, how old are you?
2 A 43.
3 Q Now, you have heard the testimony earlier
4 today from y our father about this cabin property up Cabin
5 Lane. Is th at correct?
6 A Yes.
7 Q Did you ever visit that property or that
8 approximate location when you were a young man?
9 A Yes.
10 Q Starting from what age?
11 A Probably seven years old.
12 Q And who owned that property then?
13 A Sig Ott.
14 Q And what would be the reason for your going
15 up to this property?
16 A Well, we all hung out there, you know.
17 Q When you say all, who do you mean?
18 A Sig, Larry, Calvin, Johnny, Rick, all those
19 boys, you know.
20 Q Would those all be Ott boys?
21 A Yeah. And then Calvin had two boys, stepsons
22 of his own, Bobby had a couple boys.
23 Q And would you go up to Zig's cabin?
24 A Yes.
25 Q And he gave you permission to go up there?
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0 0
1 A Yes.
2 Q Did you ever hunt up there?
3 A Yes.
4 Q And would you hunt on property that was
5 between Walnu t Dale Road and Zig's cabin?
6 A Yes.
7 Q What kind of land was that?
8 A Mountain. Woodland.
9 Q Was there a dirt road up to Zig's cabin?
10 A Yes.
11 Q Was it in the same location that Cabin Lane
12 is now?
13 A I would say, yeah.
14 Q Now, between the property that your father
15 owns and Walnut Dale Road now, how would you characterize
16 the property that is along there?
17 A Well, it is all woodland. It is all
18 mountain.
19 Q Are there some cabins there?
20 A Yeah, I had -- yeah.
21 Q Are they seasonal use or are they year round
22 residences?
23 A People lives in them.
24 Q Are there some places that are not occupied
25 as permanent residences?
65
1 A Yeah.
2 Q Can you describe where those are from the
3 property that your father owns?
4 A Well, one of them is right beside his place,
5 an old trailer there. Nobody, you know, there ain't nothing
6 there. Nobody is there. They come there and leave.
7 Q How long has that property not been occupied
8 as a permanent residence, if you know?
9 A Ever since -- probably ever since Bill Cain
10 moved off of it and moved on to the other plot, on to ours,
11 on the piece that we own now.
12 Q So Bill Cain lived adjacent to this pr operty
13 that is now owned by your father --
14 A Yeah.
15 Q -- at one point, is that right?
16 A Yeah. Probably right there where that old
17 trailer sits.
18 Q Was there a different --
19 A There was another old trailer there.
20 Q That is not there now?
21 A No, it ain't there now, no.
22 Q Now, from the time that you were seven or so
23 up until now, have you frequently gone back and forth across
24 this property? The property between Walnut Dale Road and
25 the property your father owns now, Zig's old cabin.
66
•
1 A Yeah. I always went up there, yeah.
2 Q Were there ever any open fields in that area?
3 A No.
4 Q Did anybody farm up there?
5 A No.
6 Q Were there ever any fences up through there?
7 A No.
8 Q Are there some places along Cabin Lane where
9 you can now see where stumps were pushed in?
10 A Yeah.
11 Q And where is that?
12 A Whenever you are going up, it is off to the
13 right of a " Y".
14 Q Do you have an idea of what the distance is
15 between the septic system, the sand mound on your father's
16 property and the boundary, which if you were facing the gate
17 would be off to your right?
18 A I would say it would be a hundred feet.
19 Q Okay. If I show you what has been marked as
20 Plaintiff Ex hibit 4, the third page of that, can you tell me
21 if you have seen that survey copy before?
22 A Yeah.
23 Q Now, is there a way that you can, can site or
24 approximate where the gate is in relationship to the corner
25 of the prope rty?
67
1 A Yeah.
2 Q How do you do that, can you explain that to
3 the Court ?
4 A Yeah. It is right across from -- right
5 across from the point of the ground up there at the square
6 as it comes in as a square. Right here. (Indicating) If
7 you look straight across down through there, right in there
8 is about where that gate is at. (Indicating)
9 Q And when you are saying a point of the
10 square, is that where the --
11 A The point it is on would be on Ferris' side
12 where it meets the state and Bill Ferris' property.
13 Q So you are talking about a boundary point?
14 A Yeah.
15 Q And you are saying that you can site across
16 to where the gate is?
17 A Yeah.
18 Q And that is how you can approximate where
i9 that is?
20 A Yeah. Yes.
21 Q And so on this survey, would it be fair to
22 say that the road curves more and from the gate goes further
23 from the boundary of this property than is shown on this
24 survey?
25 A What you are saying is the road comes here,
68
0 9
I it turns here, and then comes on down toward this way. I
2 don't come down toward the corner of the property, that --
3 the property line in this area ain't that close.
4 (Indicating)
5 Q You are saying when you are walking up that
6 old right-of-way, right at the property line with Ferris,
7 the corner is further than shows on this?
8 A The road is up toward, towards the state game
9 lands more.
10 Q And on the corner of the property that would
11 be in back of you and to your right, if you were at the
12 gate, what is the character of that part of this property?
13 Is it clear? Is it wooded, what is there?
14 A Well, it's wooded.
15 Q And is it wooded all the way along that
16 boundary of this property?
17 A Well, yeah.
18 Q So that is the part of this property that
19 your father testified is not cleared off?
20 A There is woods there now. There is trees and
21 leaves and stuff there.
22 Q Okay. You said that you are familiar with
23 this area and with Cabin Lane. Are you also familiar with
24 the property that lies south and up the mountain past this
25 gate?
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I A That would be up toward the state -- that
2 would be the state game lands there, the state forest there.
3 Q And do you know whether or not there is a
4 DCNR forest road that runs along the ridge?
5 A Yeah, there is. I walked it whenever I went
6 hunting before I had my pacemaker put in. When I used to
7 walk there to go up to my tree stand, on the 3 turn, up
8 there from Dry Gap and 3 turn.
9 Q And is there a road that comes off of there
10 that approaches Mr. Ferris' property?
11 A Yeah. Right above the sawdust pile.
12 Q How far would it be from the DCNR road to
13 Ferris' property? If you know.
14 A I don't know who owns the property in that
15 part. But right there, there is only -- it is only a
16 hundred foot, I'd say, not even that maybe. From off --
17 from whenever the road comes down, it is just right there,
18 you walk right there and it is there, the mountain.
19 Q You are saying that the DCNR road comes
20 down --
21 A Yeah.
22 Q -- into --
23 A Yeah, it is right there. There is another
24 man that owns a piece of tract down there too.
25 Q If you kept walking out past the gate towards
70
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1 the ridge of the mountain, how close would you come to the
2 DCNR road?
3 A Oh, gosh, I don't know. I really -- I don't
4 know. I never, never -- I don't know.
5 Q Okay. Do you recall in the times when you
6 were up at Sig Ott's cabin with him or with the boys, that
7 Bill Ferris was along?
8 A He was there a few times, I remember.
9 Q Was he there as a guest of Sig Ott's?
10 A Well, I guess if he was there, you know.
11 MS. WINDER: I have no other questions.
12 THE COURT: Cross-examine.
13 CROSS-EXAMINATION
14 BY MR. ADAMS:
15 Q Mr. Rotz, you were at the property on Monday
16 when I was there, Sally Winder was there, and Judge Ebert
17 was there?
18 A Yes.
19 Q And you walked on to Mr. Ferris' property and
20 followed us wh ile we walked on a path on that property, is
21 that correct?
22 A Yes.
23 Q Is that the road that Mr. Ferris would drive
24 a car on when he would come to visit his property?
25 A Sir, I don't want to -- I don't know. I was
71
• •
1 never there whenever Bill was on his property. I never seen
2 him drive on one. I do not know that.
3 Q Did you ever drive a four wheeler or any
4 other vehicle on that road?
5 A Years ago, yes.
6 Q When we were walking down the road, you were
7 basically poi nting out things where certain swamp areas
8 were, and it seemed you were very familiar with Mr. Ferris'
9 property.
10 A I am familiar with the mountain.
11 Q Do you cross Mr. Ferris' property when you go
12 on to that property?
13 A For me, no.
14 Q Is the Dry Gap and 3 turn on Mr. Ferris'
15 property?
16 A No.
17 Q How about the sawdust pile?
18 A Not that I know. No, it ain't.
19 Q Did you notice the -- you live in the home,
20 the blue home located on that property, is that correct?
21 A What's this?
22 Q I'm sorry, I am not being loud enough. You
23 live in the home on that property, is that correct?
24 A No, I don't.
25 Q You don't live in that?
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1 A No.
2 Q Okay. Do you know who lives -- I am going to
3 show you what has been marked Exhibit 6. There is a blue
4 home there.
5 A Yeah.
6 Q Do you know who lives in there?
7 A Yeah.
8 Q Who lives in there?
9 A My brother Ronnie.
10 Q Okay. And when you were there, were you able
11 to see the markings on the tree, orange markings on the tree
12 where that property had been surveyed?
13 A Yes.
14 MS. WINDER: I would object to that
15 characterization. There has been no testimony that those
16 orange markings are survey marks.
17 MR. ADAMS: I will rephrase.
18 THE COURT: Thank you.
19 BY MR. ADAMS:
20 Q Were you able to see orange markings on the
21 trees?
22 A Yeah. There is white ones too.
23 Q How far was the orange marking toward the
24 corner of that home?
25 A Gosh, I really don't know.
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Q Distance of this courtroom that we are in,
the width?
A I would say, yeah, I would say, something
like that.
Q Now, you are not suggesting to the Judge that
the area from that home to those trees is woodland, are you?
A Well, why wouldn't it be? There is woodland
there, there is woodland there, and there is woodland there,
and there is woodland behind there. (Indicating) What
would you call that?
Q You are saying the lawn area where there are
no trees is woodland?
A No. What would you -- if there was a tree
there, would you call it woodland?
Q So when you told the Judge that this is
woodland, and you would describe Cabin Lane as woodland, you
are saying if there is a tree it is woodland?
A No, not just one tree. There is more than
one tree there.
Q Are you familiar with George Stojkovich?
A George Stojkovich?
Q Yes. Lives where Mr. Williams used to live?
A The grocery man.
Q Yeah.
A Yeah.
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Q Does he live there year round?
A Yes.
Q Are you familiar with the Reed property at
the Cabin Lane and Walnut Dale Road?
A Yeah.
Q Does she live there year round?
A Yeah.
Q Are you familiar with Stanley Rexroth?
A Yes.
Q Is his property very close to the property
owned by your father?
A Yeah, I would say.
Q Do you know if Mr. Rexroth lives there year
round?
A Yes.
Q Your brother --
A
Q
A
Q
on Exhibit 6?
A
Q
A
Q
Yes.
-- I think his name is Ronald?
Yeah.
He lives in that blue home that I showed you
Yeah.
Does he live there year round?
Yeah.
You heard Mr. Ferris tell the Judge that he
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1 thought that your family was simply trying to get this as a
2 private preserve to hunt.
3 A Yeah, I heard that, yeah.
4 Q Have you ever discussed that with your
5 parents?
6 A No. Because if he would listen to me, he
7 would never h unt there.
8 MR. ADAMS: That is all I have.
9 THE COURT: Ms. Winder, anything further?
10 REDIRECT EXAMINATION
11 BY MS. WINDER :
12 Q Did your father ever say that he wanted it as
13 a private hun ting reserve?
14 A No. No. My brother lives there.
15 Q You say that you drove a four wheeler through
16 this property that Mr. Ferris owns years ago.
17 A Yeah.
18 Q Do you have an idea of approximately how many
19 years ago?
20 A Oh, probably five, six years ago.
21 Q Did you do that more than one time?
22 A When -- yeah, yeah.
23 Q Did you ever see Mr. Ferris up there?
24 A I never seen him on his property.
25 Q Where would you see him?
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2 Otts.
3 Q
4 of the Otts?
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Well, I seen him there at in town or there at
So did you consider him to be a good friend
A I'd imagine. He was with them some.
MS. WINDER: I have no other questions.
MR. ADAMS: Nothing, Your Honor.
THE COURT: Sir, you may step down.
THE WITNESS: Thank, you sir.
MS. WINDER: We have no other witnesses.
THE COURT: Are your exhibits --
MS. WINDER: We don't have any exhibits, Your
Honor.
THE
MS.
the deeds and picti
THE
refer to Defendant
about --
COURT: You didn't.
WINDER: We agreed to the admission of
.fires.
COURT: There was someplace in here you
Exhibit 4. You were really talking
MS. WINDER: I apologize. It is Plaintiff
Exhibit 4. They originally had gotten marked two different
ways.
THE COURT: All right.
MS. WINDER: It is Plaintiff Exhibit 4.
THE COURT: That. is what you were talking
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1 about?
2 MS. WINDER: Yes.
3 THE COURT: Mr. Adams, any rebuttal?
4 MR. ADAMS: No, Your Honor.
5 THE COURT: All right. The record will be
6 closed.
7 (Argument held off the record.)
8 THE COURT: AND NOW, after trial, the parties
9 are directed to file proposed Findings of Fact and
10 Conclusions of Law supported by memorandum of law on or
11 before -- how long would you like? I know it is the
12 holidays, so how would the 12th of January be?
13 MR. ADAMS: That would be fine.
14 MS. WINDER: Fine.
15 THE COURT: January 12, 2007.
16 Now, on the recitation of the Findings of
17 Fact, I don't need four pages. These are very simple.
18 From your point of view, this is not
19 unenclosed woodland and here is the reason why. Yours, this
20 is woodland and there are the factors that support that
21 conclusion. That is the most important issue I see here. I
22 want to concentrate on that. Any case law would be most
23 helpful.
24 MR. ADAMS: To limit counsel's, Sally -- Ms.
25 Winder, excuse me, argued about the public versus private
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1 roads. We are not going to make any claim in our Findings
2 of Fact or Conclusions of Law that we cons ider this public.
3 THE COURT: Thank you. I appreciate that.
4 With that, we will stand i n recess. Thank you very much.
5 (Whereupon, the proceeding was
6 concluded at 2:10 p.m.)
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CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause, and that this is a correct transcript of
same.
-L --OAZW
W OL&A 'f j
Marie T. Farley,
Official Court Reporter
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
Date M. L. Ebert, Jr., J.
Ninth Judicial District
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l'?3
WILLIAM E. FERRIS and
KERRI E. FERRIS,
Plaintiffs
VS.
BRUCE ROTZ and
PATSY ROTZ,
Defendants
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
: PENNSYLVANIA
: 04-6370 CIVIL TERM
: CIVIL ACTION LAW
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Defendants/Appellants Bruce and Patsy Rotz have filed an appeal to the Superior Court
of Pennsylvania following an order awarding Plaintiffs/Appellees an easement by prescription
for ingress and egress to and from the Plaintiffs' property and across Defendants'/Appellants'
property.' Defendants now appeal this decision on the following bases:
1.) The Court erred by failing to find that Plaintiffs had not acquired an easement by
prescription across the property of Defendants.
2.) The Court erred by failing to find that Plaintiffs had not proved, by clear and
convincing evidence, the elements of continuous use and adverse use of the
claimed easement track across the property of Defendants for the statutory period
of 21 years.
3.) The Court erred by failing to find that the claimed easement track across the
property of Defendants passed through unenclosed woodland as that term is
defined in 68 P. S. § 411 and has been interpreted by the Pennsylvania courts, and,
therefore, Plaintiffs were statutorily barred from acquiring an easement by
prescription across the property of Defendants.2
This opinion in support of the order awarding Plaintiffs an easement by prescription is written
pursuant to Pa. R.A.P. 1925(a).
' See Order of Court, Jan. 23, 2007. The Order further required Appellants to remove all gates, posts, fences,
barriers or other obstructions which they may have placed across the prescriptive easement commonly referred to as
Cabin Lane.
2 Defendants' Concise Statement of Matters Complained of on Appeal, filed July 5, 2007.
STATEMENT OF FACTS
Plaintiffs/Appellees, William and Kerri Ferris, of 51 Chestnut Grove Road in
Shippensburg, Pennsylvania, own an 11.6 acre lot of mountain ground which they purchased on
August 25, 1972.3 Since first purchasing the land, Appellees have used a graveled road,
commonly referred to as Cabin Lane, to access their mountain property.4 Cabin Lane is lined by
at least five home sites. Some of these are served by a public water line, and utility poles are
present along this lane.5 Appellees were never given permission to use Cabin Lane but openly
used the road to reach their property since 1972.6 William Ferris testified that he always
assumed that he had the right to use the road and no one ever attempted to discourage him from
using it.7 The Ferris property is completely forested and no grass is planted on their land.8 The
land has been used in the past for camping, riding, hunting, sledding, and as a site for a mobile
home that Plaintiffs removed around 1991.9 The property is currently uninhabited and is
selectively logged at intervals of around 20 years. 10 There are no fences on this property. 11
Defendants'/Appellants' property, a 1.428 acre lot of land purchased by Appellants from
Bill Cain on June 27, 2003, lies adjacent to Plaintiffs' property. 12 The Defendants' deed
(Plaintiffs' Exhibit #2) describes the Defendants' property as "Shown as Track # 2 on resurvey
for Charles Ott, by Kissinger and Gross, Surveyors, dated October 30, 1978 and recorded in
Cumberland Deed Book (A), Volume 28, Page 677." This survey diagram is included in the
s Pl. Ex. 1
4 Notes of Testimony, hearing Dec. 20, 2006 (hereinafter "N.T. _"), p. 7; Though the times of access to the
property were sporadic, the Ferris family accessed the property yearly. N.T. 7 & 10.
N.T. 19-20
6 N.T. 8, 10-11
N.T. 10-11
s N.T. 17
9 N.T. 7; Ferris even gave Defendants permission to hunt on his land. N.T. 14
10 N.T. 22
t ` N.T. 24
12 Pl. Ex. 2
2
record at Plaintiff's Exhibit #4 and clearly shows the "private road" which has been identified as
Cabin Lane crossing over the Defendants' property and continuing in both directions into the
adjacent properties not owned by the Defendants. The total distance from the main road (Walnut
Dale Road) to the Ferris property line is 600 to 700 yards. Of this distance Cabin Lane crosses
Appellant Rotz's lot for only about 150 to 250 feet.13
Ferris had given the former owner, Bill Cain, permission to erect a gate on Cabin Lane
under the condition that Ferris be provided a key in order to access his land. 14 A simple gate was
erected. The purpose of the gate was to prevent trespassers from driving unto the property to
drink. 15 The gate was not on the property line. It was positioned slightly within Cain's property.
The simple gate was later replaced by the metal gate, which currently bars access to Plaintiffs'
land. 16 Previously the key to the gate was left on a nail on the side of the storage shed near the
gate. 17 For a period of time Ferris was allowed access to his property, but Rotz removed the key
from the nail less than two years ago. Ferris has not been provided with a key for the new gate
since the removal and subsequently cannot access his property.18
On December 18, 2006, this Court, in the presence of both party's attorneys, conducted a
view of Cabin Lane and all properties adjacent to it. Defendants' land, while surrounded by
forest, has been cleared around the trailer and driveway. 19 The road leading to Defendants'
trailer is surrounded by grass and covered by gravel stones. If one continues along Cabin Lane,
it leads to the metal gate erected by Bill Cain. The gate is clearly visible from the gravel road
and is located just a few yards beyond Defendants' sheds. Although there are trees located in
13 N.T. 21-22, P1. Ex. 4.
14 N.T. 9-10
u N.T. 51
16 N.T. 12
17 N.T. 10;13
Is N.T. 13
19 Pl. Ex. 6,7
Defendants' front yard, the land in front of the residence is not "forested" within the general
understanding of the term. 20
The Ferris property begins a short distance from the metal gate. 21 The lane beyond the
metal gate is cleared and also covered in gravel, though not as thoroughly as on the other
portions leading to the gate. The lane on the Ferris property is surrounded by forest on both
sides. 22
Defendant Bruce Rotz claims that he decided to keep the gate closed, and thereby prevent
Ferris access to his property, in order to protect his septic system.23 He does not want Ferris to
drive over his septic system pipes and is not open to the idea of improving the site in order to
protect the pipes beneath the lane. 24 He maintains that at some unknown time in the future he
may build a house for his son, and Cabin Lane would interfere with "the setbacks" of his
house.25
DISCUSSION
A. Easement by Prescription
"It is ancient and unquestioned law that to acquire an easement by prescription, the
exercise of possession must be adverse, open, notorious and uninterrupted for a period of at least
twenty-one years." Lewkowicz v. Blumish, 275 A.2d 69, 70 (Pa. 1971). It is the opinion of this
Court that the elements of an easement by prescription are clearly met within the facts of this
case. Plaintiffs have adversely and openly used the track known as Cabin Lane to access their
property since its purchase more than 35 years ago. Defendants were well aware of this usage
21 Pl. Exs. 6-9
21 N.T. 18; Pl. Ex. 8, Plaintiff stated that the line of his property is located at the lower end of this photograph. The
line is within clear vision of Defendants' storage shed and the gate.
22 Pl. Ex. 9
2s N.T. 35
" N.T. 58-60
25 N.T. 59
4
even before they purchased their land in 2003, as were all of the other residents who lived along
Cabin Lane. Any argument related to the alleged sporadic nature of Plaintiffs' usage is without
merit, as it is plainly established in our law that the term "continuous" does not require a day-to-
day usage, Minteer v. Wolfe, 446 A.2d 316, 318-19 (Pa. Super. 1982), and it is clear that
Defendants accessed the property regularly.
B. Unenclosed Woodlands
The sole issue in this case is then whether Plaintiffs are entitled to hold the prescriptive
easement due to the wooded nature of the land. Pennsylvania law states:
"No right of way shall be hereafter acquired by user, where such way passes
through uninclosed (sic) woodland; but on clearing such woodland, the owner or
owners thereof shall be at liberty to enclose the same, as if no such way had been
used through the same before such clearing or enclosure."
68 P.S. § 411. In applying this statute and determining whether woodlands are "unenclosed,"
the nature of the land itself is determinative. Martin v. Sun Pipe Line Co., 666 A.2d 637. 641 (Pa.
1995). See McCormick v. Camp Pocono Ridge, Inc. II, 781 F.Supp. 328, 333 (M.D.Pa.1991) ("It
is beyond question that the words `uninclosed woodland' in this statute refer to a wooded area
which is not enclosed by a fence or some other barrier") (footnotes omitted).
As is often the case in the art of statutory interpretation, it is necessary for us to look to
the purpose of this statute in making our application to the present factual situation. The origins
of this statute, formerly known as the Act of 1850,26 are deeply rooted in pre-existing
Pennsylvania land conditions. At the time of enactment, great areas of timber existed which, for
a multitude of possible reasons, were not able to be enclosed. Accordingly, in such times
property owners were unable to defend against the acquisition of a prescriptive way through such
26 This act was repealed generally by the Act of December 10, 1974 P.L. 867, § 19. It is generally accepted that the
repeal was inadvertent and that therefore the substance of the statute was reenacted by the Act of 1981 P.A. 198 § 1.
See Babcock Enter., Inc. v. Wilderness Club, 27 Pa. D&C.3d 84, 87 (1982).
tracts as they were often undetected in the wooded land and changed due to new growth or other
obstructions. It was with these very instances in mind that the Act of 1850 was enacted. Babcock
Enter., Inc. v. Wilderness Club, 27 Pa. D&C.3d 84, 89 (1982).
In the case of Minteer v. Wolfe, 446 A.2d 316 (Pa. Super. 1982), a factually similar case
to the one sub justice, our Superior Court held that Plaintiff was not precluded from acquiring an
easement by prescription by application of the Act of 1850. In Minteer, Plaintiff sought to use a
lane which traversed the boundary line of the contiguous tracts of land owned by the Defendants
in order to access gas wells which had been there and operating since 1918. Plaintiffs had
acquired the property in 1964 and had since that time used the lane as an access to the wells. In
1975 Defendants blocked Plaintiffs' access to the land by erecting a cable across its entrance.
Defendants argued that Plaintiffs could not acquire an easement by prescription to the lane
because the lane passed through unenclosed woodland, which is prohibited by the Act of 1850.
The Court found that the land surrounding the lane was not woodland within the meaning
contemplated by the Act of 1850 when the "woodland" consisted of a fence row of trees and
brush as is commonly found to exist on the boundary lines of land located in rural areas. Id. at
320-21.
We find the Minteer holding applicable to the case at bar. Appellants contend that Ferris
cannot acquire an easement on the land because the lane passes through unenclosed woodland.
However, having conducted a view, and considering the testimony and photographic evidence
we do not find that the land surrounding the lane is "unenclosed woodland" within the meaning
contemplated by the Act of 1850. There are five homes on the private road known as Cabin
Lane. The number of trees around the homes are similar to that commonly surrounding many
homes located in rural Pennsylvania. In short, the Defendants' 1.428 acre property is simply a
6
home lot from which most of the forest has been cleared. The area between the gate and
Plaintiffs' landline is so close to the clearing containing the Defendants' residence that we cannot
classify the area under the category of "unenclosed woodlands" given the purpose and history of
the statute. The private road "Cabin Lane" was clearly indicated as existing at the time Rotz
acquired title to this property in 2003. For approximately 2 years Ferris was allowed to use the
key to open the gate to access his property. The fact that Appellants are able to see any vehicles
which may traverse their land gives us even greater cause to believe that the statute does not
apply to this particular situation. We therefore find that the lane does not pass through
unenclosed woodland and accordingly find that the easement by prescription is warranted in this
specific instance.
CONCLUSION
Because Plaintiffs/Appellees satisfy the elements which allow them to obtain an
easement by prescription and since the area in question does not fall within the definition
of unenclosed woodlands provided by 68 P.S. § 411, Plaintiffs were duly awarded an
easement by prescription across Defendants'/Appellants' land.
By the Court,
S\ -Ak ?-4 M. L. Ebert, Jr., U J.
A Anthony Adams, Esquire
Attorney for Plaintiffs
J
ally J. Winder, Esquire
Attorney for Defendants
7
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C.. AC'\'
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
SUPERIOR COURT OF PENNSYLVANIA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
WILLIAM E. FERRIS AND KERRI E. FERRIS
VS.
BRUCE ROTZ AND PATSY ROTZ
2004-6370 CIVIL TERM
1039 MDA 2007
The documents comprising the record have been numbered from No.1 to 142, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 07-26-07.
C R. Long, Prothonotary
Regina K. Lebo, Deputy
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date
Signature & Title
Commonwealth of Pennsylvania
County of Cumberland ss:
In TESTIMONY WHEREOF, I have hereunto
this o1?0
1, Curtis R. Long , Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full, true and correct copy of the whole record of the
case therein stated, wherein
William E. Ferris and Kerri E. Fen
Plaintiff, and Bruce Rotz and Patsy Rotz
Defendant s , as the same remains of record
before the said Court at No. 04-6370 of
civil Term, A. D. l9 .
set my hand and affixed the seal of said Court
da of Jul A. D„M2007.
Prothonotary
1, -Fa= B. Bey1py President Judge of the inth
Judicial District, composed of the County of Cumberland, do certify that
Qirtis R_ Lang , by whom the annexed record, certificate and
attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is
Prothonotary in and for said County of Cumberland in
the Commonwealth of Pennsylvania, duly commissioned and quali all of whose acts as such full faith
uthe said record,
and credit are and ought to be given as well in Courts !!ZM4?14-
certificate and attestation are in due form of law and Commonwealth of Pennsylvania
PresidcAtudge
County of Cumberland ss:
I Curtis R. Long , Prothonot ry bf the Court of Common Pleas in
and for the said County, do certify that the Honorable Edgar B. Bayley
by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time
of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF, I have hereunto
set in h,And and affixed the seal of said Court this
day Jul A. D. *F2007.
RKf
IL 1- -1 Prothonotary
Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
county of Cutnberland in the Commonwealth of Pennsylvania
1039 MDA 2007
to No. 2004-6370 Civil Term, 19 is contained the following:
COPY OF Appearance DOCKET ENTRY
William E. Ferris and Kerri E. Ferris
VS.
Bruce Rotz and Patsy Rotz
**See certified copy of docket entries**
`C14 U
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PYS511 Cumberland County Prothonotary's Office Page 1
Civil Case Print
2004-06370 FERRIS WILLIAM E ET AL (vs) ROTZ BRUCE ET AL
Reference No... Filed......... 12/20/2004
Case Type...... COMPLAINT
d Time. . 3.32
Ju
gment..... .00 Execution Date 0/00/0000
Judge Assigned. EBERT M L JR Jury Trial....
Disposed Desc.:
------------ Case Comments ----
--------- Disposed Date.
Hi 0/00/0000
gher Crt 1.: 1039MDA2007
Higher Crt 2.:
********************************************* ***********************************
General Index Attorney Info
FERRIS WILLIAM E PLAINTIFF ADAMS H ANTHONY
51 CHESTNUT GROVE ROAD
SHIPPENSBURG PA 17257
FERRIS KERRI E PLAINTIFF ADAMS H ANTHONY
51 CHESTNUT GROVE ROAD
SHIPPENSBURG PA 17257
ROTZ BRUCE DEFENDANT
257 AIRPORT ROAD
SHIPPENSBURG PA 17257
ROTZ PATSY DEFENDANT
257 AIRPORT ROAD
SHIPPENSBURG PA 17257
* Date Entries
********************************************************************************
- - - - - - - - FIRST ENTRY - - - -
12/20/2004 COMPLAINT
-------------------------------------------------------------------
12/28/2004 SHERIFF'S FILE RETURNED FILED.
Case Type: COMPLAINT & NOTICE Ret Type.: Regular
Litigant.: ROTZ BRUCE
Add es : 257 AIRPORT ROAD
Ctyy St%Z•p• SHIPPENSBURG PA 17257
Hnd To: PATSY ROTZ, WIFh
Shf/D ty.: S QN SHERTZER
Date/Time: 12 r?24 7/2004 1533:00
Costs....$80 Pd By: H ANTHONY ADAMS 12/28/2004
------------------------------------------------------------------
?D 12/28/2004 SHERIFF'S FILE RETURNED FILED.
Case Type: COMPLAINT & NOTICE Ret Type.: Regular
Litigant.: ROTZ PATSY
Add ess..: 257 AIRPORT ROAD
Cty//St/ZV: SYIROTZSBURG, PA 17257
Hndd To: PP
Shf/D ty.: S N SHERTZER
Date/Time: 12 27/02004 1533:00
Costs....: $16.00 Pd By: H ANTHONY ADAMS 12/28/2004
-------------------------------------------------------------------
TIFFS ANSWER TO DEFTS' NEW MATTER - BY H ANOTHONY ADAMS ESQ
3/07/2005 PLAIN
DEFT
-2'1 5/02/2006 PRAECIPE FOR LISTING CASE FOR TRIAL - TRIAL LIST CALLED 08-22-06 /
-------------------------------------------------------------------
TRIALS COMMENCE 09-18-06 / PRETRIALS HELD 08--30-06 - BY H ANTHONY
ADAMS ATTY
--------------------------------------------------------
a { 9/18/2006 P?CIPE FOR LISTING CASE FOR TRIAL - BY H ANTHONY ADAMS ATTY FOR
--------------------------------7----------------------------------
9/21/2006 ORDER OF COURT - 09-21-06 - IN RE: PRIOR TO SETTING AN ACTUAL
COURT DATE- IT IS ORDERED THAT THE PARTIES IN THIS CASE FILE A
PRE-TRIAL MEMEORANDUM WITH THE COURT ON OR BEFORE 10-11-06 IN
FOLLOWING FORMAT:
I-CONCISE STATEMENT OF FACTUAL ISSUES TO BE DECIDED AT TRIAL
II-LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG
WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESTIMONY
III-A LIST OF ALL EXHIBITS EACH.PARTY ANTICIPATES PRESENTING AT
TRIAL
IV-A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEING
PYS511 Cumberland County Prothonotary's Office Page
Civil Case Print
2004-06370 FERRIS WILLIAM E ET AL (vs) ROTZ BRUCE ET AL
Reference No. Filed......... 12/20/2004
Case Tye. .... COMPLAINT Time. 3.32
Judgmen .... .00 Execution?Date 0/00/0000
Judge Assigned: EBERT M L JR Jury Trial....
Disposed Desc.: Disposed Date 0/00/0000
------------ Case Comments ------------- Higher Crt 1.: : 1039MDA2007
Higher Crt 2.:
RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE
RELEVANT TO RESOLUTION OF THE STATED ISSUE
V-AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR THE PARTY TO
PRESENT ITS CASE - UPON RECEIPT AND REVIEW OF THESE MEMORANDUMS
THE COURT WILL SET A TRIAL DATE FOR THIS CASE - BY M L EBERT JR J
- COPIES MAILED 09-21-06
-------------------------------------------------------------------
10/19/2006 ORDER OF COURT - 10-19-06 - IN RE: NON-JURY TRIAL HELD ON 12-20-06
AT 10:30 AM IN CR 5 CUMB CO COURTHOUSE - A VIEW OF PROPERTY SHALL
TAKE PLAACE ON 12-18-06 AT 4 PM - THE VIEW WILL BE LIMITED TO THE
COURT AND THE ATTYS - BY ML EBERT JR J - COPIES MAILED 10-19-06
-------------
------------------------------------------------------
1/23/2007 ORDER OF COURT` 01-22-07 - IN RE:
ORDERED THAT JUDGMENT SHALL BE
ENTERED IN FAVOR OF PLFFS AND THE PLFFS SHALL BE AWARDED AN
EASEMENT BY PRESCRIPTION FOR INGRESS AND EGRESS TO AND FROM THE
PLFFS' PROPERTY AND ACROSS DEFTS' PROPERTY - FURTHER ORDERED THAT
THE DEFTS SHALL REMOVE ALL GATES-POSTS-FENCES-BARRIERS OR OTHER
OBSTRUCTIONS WHICH THEY MAY HAVE PLACED AROSS THE PRESCRIPTIVE
EASEMENT COMMONLY REFERRED TO AS CABIN LANE - BY ML EBERT JR J -
COPIES MAILED 01-23-07
-------------------------------------------------------------------
_3b-31 2/01/2007 DEFENDANT'S MOTION FOR POST-TRIAL RELIEF - BY SALLY J WINDER ATTY
FOR DEFTS
-------------------------------------------------------
3S-.3S' 2/27/2007 PPETI ION FOR FINDING OF CONTEMPT - BY H ANTHONY ADAMS ATTY FOR
-------------------------------------------------------------------
3/02/2007 ORDER - 02-28-07 - IN RE: HEARING ON 05-18-07 AT 10 AM IN CR 5
CUMB CO COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 03-02-07
--------------------------------------------------------
J& 5/18/2007 ORDER OF COURT - 05-18-07 - IN RE: DEFT'S MOTION FOR POST TRIAL
RELIEF IS DENIED - BY M L EBERT JR J - COPIES MAILED 05-18-07
-------------------------------------------------------------------
?]-? 6/15/2007 NOTICE OF APPEAL TO SUPERIOR COURT - BY SALLY J WINDER ATTY FOR
DEFTS
-------------------------------------------------------------------
??a 6/18/2007 ORDER OF COURT - 06-18-07 - IN RE: RECORD OF TRIAL FROM 12-20-06
SHALL BE TRANSCRIBED - BY M L EBERT JR J - COPIES MAILED 06-18-07
-------------------------------------------------------------------
1/3 6/18/2007 ORDER OF COURT - 06-18-07 - IN RE: APPELLANT IS ORDERED TO FILE
WITH THIS COURT A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON
APPEAL NO LATER THAN 07-06-07 - BY M L EBERT JR J - COPIES MAILED
06-18-07
-------------------------------------------------------
yy y?o 6/21/2007 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #1039 MDA 2007
---------------------------------------------------
l/7 7/05/2007 BYFENDANTS'WIONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL -
-------------------------------------------------------------------
?O` {? 7/10/2007 PETITION FOR FINDING OF CONTEMPT PLFFS BY H ANTHONY ADAMS ATTY FOR
--------------------------=--------------------------------------
S'S-/3y7/16/2007 PROCEEDINGS - IN RE: NON-JURY TRIAL - HELD BEFORE M L EBERT JR J
IN COURTROOM 5 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA ON
12-20-2006
-------------------------------------------------------------------
13S 7/25/2007 OPINION PURSUANT TO PA RAP 1925
BY THE COURT M L EBERT JR J
COPIES MAILED
---------------------- -----------------------------------
7/26/2007 NOTICE OF DOCKET ENTRIES MAILED TO SALLY J WINDER ES
H ANTHONY ADAMS EQ
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information
* Fees & Debits Beg Bal Pymts/Adj End Bal
PYS511 Cumberland County Prothonotary's Office Page 3
Civil Case Print
2004-06370 FERRIS WILLIAM E ET AL (vs) ROTZ BRUCE ET AL
Reference No..: Filed........: 12/20/2004
Case Type.....: COMPLAINT Time. 3.32
Judgment..... : .00 Execution?Date 0/00/0000
Judge Assigned: EBERT M L JR Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.: 1039MDA2007
Higher Crt 2.:
******************************************************* ************************
COMPLAINT 35.00 35.00 .00
TAX ON CMPLT .50 .50 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION 5.00 5.00 .00
JCP FEE 10.00 10.00 .00
APPEAL HIGH CT 48.00
-------------- 48.00
-------- .00
103.50 -- ---
103.50 ---------
.00
********************************************************************************
* End of Case Information
********************************************************************************
TRUE C , . In Testimony w 1h r: n ` I r. into set my hand
and the seal of sad " Carlisle, Pa.
This ..... :?4 ..... day of
................
. .......... aDd7
Prothonotary
WILLIAM E. FERRIS & IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
BRUCE ROTZ &
PATSY ROTZ,
DEFENDANTS NO. 04-6370 CIVIL
ORDER OF COURT
AND NOW, this 2"d day of August, 2007, upon consideration of the Petition for
Finding of Contempt filed by the Plaintiffs,
IT IS HEREBY ORDERED AND DIRECTED that:
1. A Rule is issued upon the Defendants to show cause why the relief requested
by the Plaintiffs should not be granted;
2. The Defendants will file an answer on or before September 3, 2007;
3. If no answer to the Rule to Show cause is filed by the required date, the relief
requested by Plaintiffs shall be granted upon the Court's receipt of a Motion requesting
Rule be made Absolute. If the Defendants file an answer to this Rule to Show Cause,
and the answer raises disputed issues of material fact, an evidentiary hearing will then
be scheduled.
4. The Prothonotary is directed to forward said Answer to this Court.
By the Court,
*-? ?a
M. L. Ebert, Jr., J.
H. Anthony Adams, Esquire
Attorney for Plaintiffs
Sally J. Winder, Esquire C7
Attorney for Defendants d'131o ?' ,?,(?
bas
VINVAl,QNNGd
AiNnoo
+ I :C Wd Z- 9nn LOOZ
AdVION 1i'odd 3Hi d4
aol,-U ? 3111
WILLIAM E. FERRIS & : IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs : CIVIL ACTION
VS
BRUCE ROTZ & NO. 04 - 6370 CIVIL TERM
PATSY ROTZ,
Defendants
PRAECIPE
TO THE PROTHONOTARY
Enter judgment in favor of plaintiffs, William E. Ferris and Kerrie E.
Ferris, and against the defendants, Bruce Rotz and Patsy Rotz, pursuant
to the provisions of the Order of Court dated January 22, 2007, as
follows:
IT IS HEREBY ORDERED AND DIRECTED that Judgment shall be
entered in favor of the Plaintiffs and the Plaintiffs shall be awarded an
easement by prescription for ingress and egress to and from the
Plaintiffs' property and across Defendants' property.
IT IS FURTHER ORDERED AND DIRECTED that the Defendants
shall remove all gates, posts, fences, barriers, or other obstructions which
they may have placed across the prescriptive easement commonly
referred to as Cabin Lane.
f (A,) 4"u
er, Att
orney for Defendantss
ally Zly
9974 itcher Highway
Shippensburg, PA 17257
(717) 532-9476
r--Dl 0
t' 6
4
- -
;
-
3
F Z i
re ?
WILLIAM E. FERRIS & : IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs CIVIL ACTION
vs
BRUCE ROTZ & NO. 04 -- 6370 CIVIL TERM
PATSY ROTZ,
Defendants
DEFENDANTS' PETITION FOR SUPERSEDEAS
Defendants, Bruce Rotz and Patsy Rotz, by and through their attorney, Sally J.
Winder, respectfully petition the Court pursuant to Pa. R.A.P. 1733(a) for the entry of an
order of supersedeas, and in support thereof represent as follows:
1. On January 22, 2007, an Order of Court was entered against defendants in this
case, awarding plaintiffs an easement by prescription across defendants' property and
directing defendants to remove gates, barriers or other obstructions which they might
have placed across the prescriptive easement.
2. On February 1, 2007, defendants filed their Motion for Post-Trial Relief,
requesting this Court to reverse its Order of Court dated January 22, 2007. Defendants'
Motion for Post-Trial was denied sua sponte by this Court on May 18, 2007.
4. Defendants filed a timely Notice of Appeal from the Order of Court denying
their Motion for Post-Trial Relief. Defendants desire that this appeal shall operate as a
supersedeas of the judgment for a prescriptive easement and for removal of gates, barriers
and other obstructions from across the prescriptive easement.
WHEREFORE, Defendants respectfully request this Court enter an ORDER that
all further proceedings on the judgment for a prescriptive easement and for removal of
gates, barriers and other obstructions in the above-captioned case be stayed pending the
1
determination of Defendants' appeal and conditioned upon the filing of appropriate
security.\
J
Dated: August $( , 2007
Sally J. finder, (Atty. I.D. #24705)
Attorney for Defendants, Bruce Rotz and
Patsy Rotz
9974 Molly Pitcher Highway
Shippensburg, PA 17257
Telephone (717) 532-9476
2
WILLIAM E. FERRIS &
KERRI E. FERRIS,
Plaintiffs
vs
BRUCE ROTZ &
PATSY ROTZ,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 04 - 6370 CIVIL TERM
PROOF OF SERVICE
I hereby certify that I am on this day serving the foregoing documents upon the
persons and in the manner indicated below which service satisfies the requirements of
Pa.R.A.P. 121:
Service by first class mail addressed as follows:
H. Anthony Adams, Esquire
49 West Orange Street
Shippensburg, PA 17257
(Counsel for William E. Ferris & Kerri E. Ferris)
Dated: August, 2007
1? in 1A--
Sally J. der, (Atty. I.D. #24705)
Attorney for Defendants, Bruce Rotz and
Patsy Rotz
9974 Molly Pitcher Highway
Shippensburg, PA 17257
Telephone (717) 532-9476
1
U°
A
VA91JAM E. FERRIS & : IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, : CUMBERLAND COUNTY, PENNSYLVANIA
PlxiantiDs CIVIL ACTION
VS
BRUCE ROTZ & NO. 04 - 6370 CIVIL TERM
PATSY ROTZ,
Defendants
DEPENDANTS' ANSWER TO PETITION
FOR FINDING OF CONTEMPT
Defendants, Bruce Rotz and Patsy Rotz„ by and through their attorney, Sally J. Wing.
Answer Plaintiffs' Petition for Finding of Contempt, as follows:
1. Denied. To the contrary, the Order of Court in this case awarding Plaintiffs an
easement by prescription across Defendants' land was dated January 22 2007. No copy of
said Order of Court was attached to the copy of the Petition for Finding of Contempt
which was served upon counsel for Defendants by letter dated August 9, 2007.
Defendants further aver that they filed a timely Motion for Post Trial Relief following
entry of the said Order of Court. Defendants' Motion for Post-Trial Relief was denied sua
sponte by the Court, without affording counsel an opportunity for briefing and argument
concerning the issues raised in the Motion for Post-Trial Relief. Following denial of their
post-trial motion, Defendants filed a timely Notice of Appeal to the Superior of Court,
which appeal is currently pending in the Superior Court.. .
2. Admitted. Defendants further aver that the Order of Court dated January 22,
2007, awarding an easement by prescription to Plaintiffs was in violation of long-
standing precedent concerning the application of the Unenclosed Woodland Act and will
r
likely be reversed by the Superior Court. Defendants wish to maintain the status quo
pending a decision by the Superior Court.
3. Defendants admit Plaintiffs have engaged counsel in this matter. Defendants
have no idea of the amount of Plaintiffs' legal fees, and proof thereof is demanded at the
hearing of this matter. Defendants further aver that they were under no obligation to
answer the prior petition, inasmuch as the Plaintiffs had never entered judgment on the
Order of Court dated January 22, 2007, at the time of the prior petition. In addition,
Defendants' timely filed post-trial motion was pending at the time of the filing of the
prior petition. The amount of attorney fees claimed---$1,000.00---is unreasonable and
arbitrary for the filing of a one and one-half (1 '/Z) page uncomplicated petition for
contempt.
4. Defendants admit Plaintiffs may not be able to cross Defendants' property to
get to their lands. Defendants believe, and therefore aver, that Plaintiffs can access and
use their lands by another road or right-of-way Defendants fiudw aver that they have
no knowledge or information that Plaintiffs have actually attempted to access their lands
across Defendants' lands since the date of denial of Defendants' Post-Trial Motion
Defendants further aver that Plaintiffs are not entitled to punitive damages in this
proceeding. Defendants' intent has been only that of preserving the status quo pending
resolution of this case by the Superior Court.
2
or
5. Defendants believe they are entitled to an order of supersedeas of the Order of
Court during the pendency of their appeal to the Superior Court. Contemporaneously
with the filing of this Answer. Defendants are filing their Petition for Supersedeas.
Defendants further aver that are not willfully in contempt of the Order of Court.
Incarceration is an' nappropriate sanction in this proceeding.
Sally 1. under, Attorney for Defendants
9974 Molly Pitcher Highway
Shippensburg, PA 1725'
(717) 532-9476
e
WILLIAM E. FERRIS & : IN THE COURT OF COMMON PLEAS OF
KERRI E. FERRIS, : CUMBERLAND COUNTY, PENNSYLVANIA
Pbdutws : CIVIL ACTION
vs
BRUCE ROTZ &
PATSY ROTZ,
Defendants
NO. 04 - 6370 CIVIL TERM
PROOF OF SERVICE
I hereby certify that I am on this day serving the foregoing documents upon the
persons and in the manner indicated below which service satisfies the requir is of
Pa.R.A.P. 121:
Service by first class mail addra-mad as follows•
H. Anthony Adams, Esquire
49 West Orange Street
Shippensburg, PA 17257
(Counsel for William E. Ferris & Kerri E. Ferris)
(-)h, (i,r
Dated: August 51 2007
Sally J. Vflnder, (Atty. I.D. #24705)
Attorney or Defendants, Bruce Rote and
Patsy Rotz
9974 Molly Pitcher Highway
Shippensburg, PA 17257
Telephone (717) 532-9476
rt, ,
Co
WILLIAM E. FERRIS and,
KERRI E. FERRIS
Plaintiffs
V.
BRUCE ROTZ and PATSY ROTZ,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6370 CIVIL
ORDER OF COURT
AND NOW, this 20t' day of September, 2007, upon consideration of the
Defendant's Petition for Supersedeas, and the Plaintiff's Answer thereto,
IT IS HEREBY ORDERED AND DIRECTED that the Request for
Supersedeas is DENIED.
IT IS FURTHER ORDERED AND DIRECTED that the Defendants shall
immediately comply with this Court's Order of January 22, 2007.
By the Court,
N\ -V ?-" v
M. L. Ebert, Jr., J.
H. Anthony Adams, Jr., Esquire
Attorney for Plaintiffs /
l£cL,
Sally J. Winder, Esquire
Attorney for Defendants
bas
a? tes enac
4/1/07
VINVA IASNN3d
AlNf1c? n .a?GWno
L ? :01 WV 13 d3S LOOZ
AdVIaNGHiOdd 3HI dO
30Hj?3%A
WILLIAM E. FERRIS and,
KERRI E. FERRIS
Plaintiffs
V.
BRUCE ROTZ and PATSY ROTZ,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6370 CIVIL
ORDER OF COURT
AND NOW, this 18th day of October, 2007, this Court having been
informed by Counsel for the Plaintiffs that the Superior Court has denied the Defendants
Request for Supersedeas, and having requested that a hearing be scheduled on his
Petition for Finding of Contempt,
IT IS HEREBY ORDERED AND DIRECTED that a hearing shall be held
on Tuesday, November 27, 2007 at 8:30 a.m. in Courtroom No. 5 of the Cumberland
County Courthouse, Carlisle, Pennsylvania.
.41 Anthony Adams, Esquire
Attorney for Plaintiffs
ally J. Winder, Esquire
Attorney for Defendants
a
Court Administrator - /-P//tV7 /ga Sr
bas
By the Court,
`, % M. L. Ebert, Jr., .
40 :0 wv 61 130 LDOZ
?-!Hl JO
30',J r -(13113
WILLIAM E.
E FERRIS and
KERRI
FERRIS, IN THE COURT
Plaintiff CUMBERLAND COUNTY
COMMON
Plaintiffs , PENNSYLVANIA OF
V. BRUCE ROTZ and 04-6370 CIVIL
PATSY ROTZ, TERM
Defendants CIVIL ACTION
_ LAW
IN RE: CONTEMPT
PETITION
ORDER OF COURT
AND NOW, this 27t
hearing on plaintiff's h day of November
, 2007, after
that Petition
the defendants for contempt, the
of court. The Bruce Rotz and Patsy Ro Court finds
pay legal f penalty for this contempt tz, are in contempt
ees 1s that
to
IT the plaintiff in the the defendant
IS FURTHER ORDERED amount of $405.00.
shown in Petitioner s FRED AND DIRECTED that
Which Exhibit Number 4 the metal
hold it
on either be removed fro gate
m the
posts
obstruct this end. No gate shall be Positioned to
lane in any manner. Positioned to
shall FURTHERMORE, IT IS ORDERED
Park any motor vehicle i AND DIRECTED that
in any way obstruct the plaintiffs' the use right
the no person
which would in
Property• e lane or access to his
BY the Court,
M• L• Ebert, Jr.,
J.
Anthony Adams
For the plaint, ffsEsquire
'
" r'o illy J• Winder,
e DefendantEsquire J
=mtf
?v
omm
-; i t??,-
.;Alan i?
,y
\ , ??
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
SUPPLEMENTAL RECORD
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
WILLIAM E. FERRIS AND KERRI E. FERRIS
Vs.
BRUCE ROTZ AND PATSY ROTZ
2004-6370 CIVIL TERM
1039 MDA 2007
The documents comprising the record have been numbered from No.142 to 161, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 06/26/2008
Curtis R. , otho otary
Regina Lebo
An additional copy of this certificate is enclosed Please sign and date copy, therebv
acknowledzine receipt of this record.
Date
Signature & Title
SUPPLEMENTAL REMRD
Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
county of Cumberland in the Commonwealth of Pennsylvania
1039 NIDA 2007
to No. 2004-6370 Civil Term, 19 is contained the following:
COPY OF _ Appearance DOCKET ENTRY
William E. Ferris and Kerri E. Ferris
VS.
Bruce Rotz and Patsy Rotz
**See certified copy of the docket entries**
Commonwealth of Pennsylvania
County of Cumberland ss:
In TESTIMONY WHEREOF, I have hereunto
this 26th
I, Curtis R• Long, Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full, true and correct copy of the whole record of the
case therein stated, wherein
Plaintiff, and Bruce Rotz and Patsy Rotz
Defendant -Sas the same remains of record
before the said Court at No. 04-6370 of
C'yi ] Term, A.D. 19 .
set my hand and affixed the seal of said Court
day of diingo . A. D., IBX2OO
Prothonotarv
1, Edgar 8. BaY3.w President Judge of the Ninth
Judicial District, composed of the County of Cumberland, do certify that
nazis R_LQng , by whom the annexed record, certificate and
attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is
Prothonotary in and for said County of 0-Mbar-3 _^d in
the Commonwealth of Pennsylvania, duly commissioned and qualified )II of whose acts as such full faith
and credit are and ought to be given as well in Courts of judicat as elserthat the said record,
certificate and attestation are in due form of law and made y?prooffic
1
Pre4ident .l re
Commonwealth of Pennsylvania
County of Cumberland ss:
I, Curtis R. Long , Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable g gter R W1W
by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time
of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified, to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and affixed the seal of said Court this
26th day f Jiina A. D. 190=-
Prothonotarv
O
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PYS511 Cumberland County Prothonotary's Office Page 1
Civil Case Print
2004-06370 FERRIS WILLIAM E ET AL (vs) ROTZ BRUCE ET AL
Reference No. Filed......... 12/20/2004
Case Type .... .: COMPLAINT
d Time.
? 3.32
Ju
gment..... : .00 Execution
Date 0/00/0000
Judge Assigned: EBERT M L JR Jury Trial....
Disposed Desc.:
------------ Case Comment
---- Disposed Date.
--------- Hi 0/00/0000
s gher Crt l.: 1039MDA2007
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
FERRIS WILLIAM E PLAINTIFF ADAMS H ANTHONY
51 CHESTNUT GROVE ROAD
SHIPPENSBURG PA 17257
FERRIS KERRI E PLAINTIFF ADAMS H ANTHONY
51 CHESTNUT GROVE ROAD
SHIPPENSBURG PA 17257
ROTZ BRUCE DEFENDANT
257 AIRPORT ROAD
SHIPPENSBURG PA 17257
ROTZ PATSY DEFENDANT
257 AIRPORT ROAD
SHIPPENSBURG PA 17257
Judgment Index Amount Date Desc
ROTZ PATSY 8715/2007 JUDGMENT ON ORDER
********************************************************************************
* Date Entries
********************************************************************************
12/20/2004 COMPLAINT - - FIRST ENTRY - - - - - - - - - - - - -
-------------------------------------------------------------------
12/28/2004 SHERIFF'S FILE RETURNED FILED.
Case Type: COMPLAINT & NOTICE Ret Type.: Regular
Litigan : ROTZ BRUCE
Add es : 257 AIRPORT ROAD
CtyYrSt/% SHIPPENSBURG PA 17257
Hnci To: PATSY ROTZ, WIFk
Shf/Dpty.: S ON SHERTZER
DostsTime: $4 ?802Pd4By: HIANTHONY ADAMS 12/28/2004
-------------------------------------------------------------------
?Q 12/28/2004 SHERIFF'S FILE RETURNED FILED.
Case Type: COMPLAINT & NOTICE Ret Type.: Regular
Litigant.: ROTZ PATSY
Add es$ : 257 AIRPORT ROAD
Cty St{Zp:.SYIROTZSBURG, PA 17257
Shf/DpMp.: SHANNON SHERTZER
osts ... . : $1227 16.002Pd4By: H 15
Co ANTHONY ADAMS 12/28/2004
-------------------------------------------------------------------
/-a3 3/07/2005 PLAINTIFFS ANSWER TO DEFTS' NEW MATTER - BY H ANOTHONY ADAMS ESQ
.)4/ 5/02/2006 PRAECIPE FOR LISTING CASE FOR TRIAL - TRIAL LIST CALLED 08-22-06__--
-------- --- ------- ---- --- ----- - ----- ---- ------ --------
TRIALS COMMENCE 09-18-06 / PRETRIALS HELD 08--30-06 - BY H ANTHONY
ADAMS ATTY
9/18/2006 PRAECIPE FOR LISTING CASE FOR TRIAL - BY H ANTHONY ADAMS ATTY FOR
-------------------------------------------------
PLFF
-------------------------------------------------------------------
9/21/2006 ORDER OF COURT - 09-21-06 - IN RE: PRIOR TO SETTING AN ACTUAL
?b-a7 COURT DATE- IT IS ORDERED THAT THE PARTIES IN THIS CASE FILE A
PRE-TRIAL MEMEORANDUM WITH THE COURT ON OR BEFORE 10-11-06 IN
FOLLOWING FORMAT:
PYS511 Cumberland County Prothonotary's Office Page
Civil Case Print
2004-06370 FERRIS WILLIAM E ET AL (vs) ROTZ BRUCE ET AL
Reference No... Filed......... 12/20/2004
Case Type ..... . COMPLAINT Time. ... 3.32
Judgment..... .00 Execution Date 0/00/0000
Judge Assigned: EBERT M L JR Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.: 1039MDA2007
10/19/2006
a 9 1/23/2007
_30_3 j 2/01/2007
33- 2/27/2007
3/02/2007
5/18/2007
37 6/15/2007
7 6/18/2007
3 6/18/2007
j?lf- y(p 6/21/2007
7/05/2007
7/10/2007
Sr 13'l 7/16/2007
/3S_,/1/j7/25/2007
7/26/2007
Higher Crt 2.:
I-CONCISE STATEMENT OF FACTUAL ISSUES TO BE DECIDED AT TRIAL
II-LIST OF WITNESSES THE PARTY INTENDS TO CALL AT TRIAL ALONG
WITH A CONCISE STATEMENT OF THEIR ANTICIPATED TESTIMONY
III-A LIST OF ALL EXHIBITS EACH PARTY ANTICIPATES PRESENTING AT
TRIAL
IV-A STATEMENT OF ANY LEGAL ISSUES EACH PARTY ANTICIPATES BEING
RAISED AT TRIAL ALONG WITH COPIES OF ANY CASES WHICH MAY BE
RELEVANT TO RESOLUTION OF THE STATED ISSUE
V-AN ESTIMATE OF THE ANTICIPATED TIME NEEDED FOR THE PARTY TO
PRESENT ITS CASE - UPON RECEIPT AND REVIEW OF THESE MEMORANDUMS
THE COURT WILL SET A TRIAL DATE FOR THIS CASE - BY M L EBERT JR J
- COPIES MAILED.09-21-06
--------------------------------------------------------------------
ORDER OF COURT - 10-19-06 - IN RE: NON-JURY TRIAL HELD ON 12-20-06
AT 10:30 AM IN CR 5 CUMB CO COURTHOUSE - A VIEW OF PROPERTY SHALL
TAKE PLAACE ON 12-18-06 AT 4 PM - THE VIEW WILL BE LIMITED TO THE
COURT AND THE ATTYS - BY ML EBERT JR J - COPIES MAILED 10-19-06
-------------------------------------------------------------------
ORDER OF COURT - 01-22-07 - IN RE:
ORDERED THAT JUDGMENT SHALL BE
ENTERED IN FAVOR OF PLFFS AND THE PLFFS SHALL BE AWARDED AN
EASEMENT BY PRESCRIPTION FOR INGRESS AND EGRESS TO AND FROM THE
PLFFS' PROPERTY AND ACROSS DEFTS' PROPERTY - FURTHER ORDERED THAT
THE DEFTS SHALL REMOVE ALL GATES-POSTS-FENCES-BARRIERS OR OTHER
OBSTRUCTIONS WHICH THEY MAY HAVE PLACED AROSS THE PRESCRIPTIVE
EASEMENT COMMONLY REFERRED TO AS CABIN LANE - BY ML EBERT JR J -
COPIES MAILED 01-23-07
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DEFENDANT'S MOTION FOR POST-TRIAL RELIEF - BY SALLY J WINDER ATTY
FOR DEFTS
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PETITION FOR FINDING OF CONTEMPT - BY H ANTHONY ADAMS ATTY FOR
PLFFS
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ORDER - 02-28-07 - IN RE: HEARING ON 05-18-07 AT 10 AM IN CR 5
CUMB CO COURTHOUSE - BY M L EBERT JR J - COPIES MAILED 03-02-07
-------------------------------------------------------------------
ORDER OF COURT - 05-18-07 - IN RE: DEFT'S MOTION FOR POST TRIAL
RELIEF IS DENIED - BY M L EBERT JR J - COPIES MAILED 05-18-07
-------------------------------------------------------------------
NOTICE OF APPEAL TO SUPERIOR COURT - BY SALLY J WINDER ATTY FOR
DEFTS
-------------------------------------------------------------------
ORDER OF COURT - 06-18-07 - IN RE: RECORD OF TRIAL FROM 12-20-06
SHALL BE TRANSCRIBED - BY M L EBERT JR J - COPIES MAILED 06-18-07
-------------------------------------------------------------------
ORDER OF COURT - 06-18-07 - IN RE: APPELLANT IS ORDERED TO FILE
WITH THIS COURT A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON
APPEAL NO LATER THAN 07-06-07 - BY M L EBERT JR J - COPIES MAILED
06-18-07
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SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #1039 MDA 2007
-------------------------------------------------------------------
DEFENDANTS' CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL -
BY SALLY J WINDER ATTY FOR DEF
-------------------------------------------------------------------
PETITION FOR FINDING OF CONTEMPT -BY H ANTHONY ADAMS ATTY FOR
PLFFS
-------------------------------------------------------------------
PROCEEDINGS - IN RE: NON-JURY TRIAL - HELD BEFORE M.L EBERT JR J
IN COURTROOM 5 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA ON
12-20-2006
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OPINION PURSUANT TO PA R A P 1925
BY THE COURT M L EBERT JR J
COPIES MAILED
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NOTICE OF DOCKET ENTRIES MAILED TO SALLY J WINDER ESQ
PYS511 Cumberland County Prothonotary's Office Page
Civil Case Print
2004-06370 FERRIS WILLIAM E ET AL (vs) ROTZ BRUCE ET AL
Reference No... Timed........: 12/20/2004
Case Type.....: COMPLAINT ........
Judgment..... .00 Execution Date 0/00/0000
Judge Assigned: EBERT M L JR Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.: 1039MD 2007
Higher Crt 2.:
H ANTHONY ADAMS ESQ
-------------------------------------------------------------------
lild-/ y,? 8/02/2007 ORDER OF COURT - DATED 08-02-07 - IN RE: PETITION FOR FINDING
CONTEMPT FILED BY PLFFS - 1- A RULE IS ISSUED UPON THE DEFTS TO
SHOW CAUSE WHY THE RELIEF REQUESTED BY THE PLFFS SHOULD NOT BE
GRANTED - 2- THE DEFTS WILL FILE AN ANSWER ON OR BEFORE 09-03-07
3- IF NO ANSWER TO THE RULE TO SHOW CAUSE IF FILED BY THE REQUIRED
DATE THE RELIEF REQUESTED BY PLFFS SHALL BE GRANTED UPON THE
COURTS RECEIPT OF A MOTION REQUESTING RULE TO BE MADE ABSOLUTE -
IF THE DEFTS FILE AN ANSWER TO THIS RULE TO SHOW CAUSE AND THE
ANSWER RAISES DISPUTED ISSUES OF MATERIAL FACT AN EVIDENTIARY
HEARING WILL THEN BE SCHEDULED - 4- *** THE PROTHONOTARY IS
DIRECTED TO FORWARD SAID ANSWER TO THIS COURT - BY M L EBERT JR J
COPIES MAILED 08-03-07
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/ ? 8/15/2007 PRAECILY J RIENTRYEOF JUDGMENT ON THE ORDER AND JUDGMENT ENTERED
BY SAL W
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8/31/2007 DEFENDANT'S PETITION FOR SUPERSEDEAS BY SALLY J WINDER ESQ
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/ ?-/SS 8/31/2007 DEFENNDDANNTT'S NEWER TO PETITON FOR FINDING OF CONTEMPT - BY SALLY J
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9/20/2007 ANSWER-TO -DEFTS'-PETITION _FOR-SUPERSEDEAS - BY PLFF & DEFT
-------------------------------
dy`? 9/21/2007 ORDER OF COURT - DATED 9/20/07 - UPON CONSIDERATION OF THE
DEFENDANT'S PETITION FOR SUPERSEDEAS AND THE PLAINTIFF'S ANSWER
THERETO - IT IS HEREBY ORDERED AND DIRECTED THAT THE RE UEST FOR
SUPERSEDEAS IS DENIED - IT IS FURTHER ORDERED AND DIREC ED THAT IMM 1/22/07 END - BY TM L?EBERT JRDJA- COPIESPMAILEDH9f21?070URT'S ORDER OF
?+ -------------------------------------------------------------------
/S7 10/19/2007 ORDER OF COURT - DATED 10/18/07 - THIS COURT HAVING BEEN INFORMED
BY COUNSEL FOR THE PLAINTIFFS THAT THE SUPERIOR COURT HAS DENIED
THE DEFENDANTS REQUEST FOR SUPERSEDEAS AND HAVING REQUESTED THAT A
HEAR
IS ORDERED AND DIRECCTED THATPATHTEARINGOSHALLDBEGHELDC0 T1M/27/07T
8:30 AM CR 5 - BY M L EBERT JR J - COPIES MAILED 10/1907
-------------------------------------------------------------------COURT - /lp O 12/03/2007 EORDER BERT JR J COPIES/ /MAILED 12/IN RE: CONTEMPT PETITION - BY M L
- 3/07
-------------------------------------------------------------------
6/25/2008 NOTICE OF DOCKET ENTRIES MAILED TO H ANTHONY ADAMS ESQ AND SALLY J
WINDER ESQ- LAST ENTRY - - - - - - - - - - - - - -
&I ?xh.b.`ts
********************************************************************************
* Escrow Information
* Fees & Debits Beq*Bal*** mts/Ad? End Bal
******************************** ****P ****** *******************************
COMPLAINT 35.00 35.00 .00
TAX ON CMPLT .50 .50 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION 5.00 5.00 .00
JCP FEE 10.00 10.00 .00
APPEAL HIGH CT 48.00 48.00 .00
JDMT 14.00 14.00 .00
------------------------ ------------
117.50 117.50 .00
********************************************************************************
* End of Case Information
********************************************************************************
TRUE COPY FROM RECORD
In Testimony whereof, I here unto set my,
ImM
and the seal of said Court at Carlisle, Pa.
This ..... ?S... day of..qw?.. > .. ... .
7 Prothonotary
e
Superior Court of Pennsylvania
Karen Reid Bramblett, Esq. Middle District 100 Pine Street. Suite 400
Prothonotary Harrisburg, PA 17101
James D. McCullough, Esq. July 23, 2008 717-772-1294
Deputy Prothonotary www.supenor.court.state.pa.us
Certificate of Remittal/Remand of Record
TO: Mr. Curtis R. Long
Prothonotary
RE: Ferris, W. et al v. Rotz, B. et al
No. 1039 MDA 2007
Trial Court/Agency Dkt. Number: 04-6370 Civil Term
Trial Court/Agency Name: Cumberland County Court of Common Pleas
Intermediate Appellate Court Number:
Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572
is the entire record for the above matter.
Contents of Original Record:
Original Record Item
Part
Supplemental Part
Filed Date
July 27, 2007
June 26, 2008
SEP 0 2 1008
Description
1
1
Date of Remand of Record:
ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and
returning the enclosed copy of this certific t? office. Cop recipients (noted below) need
not acknowledge receipt. 4n James D. McCullough, Esq.
Deputy Prothonotary
Signature
Date
Printed Name
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM E. FERRIS AND IN THE SUPERIOR COURT OF
KERRI E. FERRIS, PENNSYLVANIA
Appellees .
V.
BRUCE ROTZ AND PATSY ROTZ,
Appellants No. 1039 MDA 2007
Appeal from the Judgment Entered August 15, 2007,
Court of Common Pleas, Cumberland County,
Civil Division, at No. 04-6370 Civil Term.
BEFORE: LALLY-GREEN, SHOGAN and COLVILLE*, JJ.
MEMORANDUM: FILED: July 23, 2008
Bruce and Patsy Rotz (collectively "Rotz") appeal from the judgment
entered against them after the trial court granted William E. Ferris and
Kerri E. Ferris ("Mr. and Mrs. Ferris" or "Ferris") an easement by prescription
for ingress and egress to and from Ferris' property and across Rotz's
property.' We affirm.
' The Notice of Appeal was filed on June 17, 2007, and indicates that Rotz
appealed from the May 18, 2007 order denying their post-trial motion.
Judgment was not entered until August 15, 2007. "Even though the appeal
was filed prior to the entry of judgment, ... jurisdiction in appellate courts
may be perfected after an appeal notice has been filed upon the docketing of
a final judgment." Johnston the Florist, Inc. v. TEDCO Constr. Corp.,
657 A.2d 511, 513 (Pa. Super. 1995). Therefore, we will address the merits
of this appeal.
*Retired Senior Judge assigned to the Superior Court.
1. A13020/08
The trial court set forth the facts of this case as follows:
Plaintiffs/Appellees, William and Kerri Ferris, of 51
Chestnut Grove Road in Shippensburg, Pennsylvania, own an
11.6 acre lot of mountain ground which they purchased on
August 25, 1972. Since first purchasing the land, [Mr. and Mrs.
Ferris] have used a graveled road, commonly referred to as
Cabin Lane, to access their mountain property. Cabin Lane is
lined by at least five home sites. Some of these are served by a
public water line, and utility poles are present along this lane.
[Mr. and Mrs. Ferris] were never given permission to use Cabin
Lane but openly used the road to reach their property since
1972. William Ferris testified that he always assumed that he
had the right to use the road and no one ever attempted to
discourage him from using it. The Ferris property is completely
forested and no grass is planted on their land. The land has
been used in the past for camping, riding, hunting, sledding, and
as a site for a mobile home that [Mr. and Mrs. Ferris] removed
around 1991. The property is currently uninhabited and is
selectively logged at intervals of around 20 years. There are no
fences on this property.
[The Rotz] property, a 1.427[2] acre lot of land purchased
by [them] from Bill Cain on June 27, 2003, lies adjacent to [the
Ferris] property. [Rotz's] deed (Plaintiffs' Exhibit #2) describes
[the Rotz] property as "Shown as Track #2 on resurvey for
Charles Ott, by Kissinger and Gross, Surveyors, dated
October 30, 1978 and recorded in Cumberland Deed Book (A),
Volume 28, Page 677." This survey diagram is included in the
record at Plaintiffs' Exhibit #4 and clearly shows the "private
road" which has been identified as Cabin Lane crossing over [the
Rotz] property and continuing in both directions into the
adjacent properties not owned by [Rotz]. The total distance
from the main road (Walnut Dale Road) to the Ferris property
line is 600 to 700 yards. Of this distance Cabin Lane crosses
[Rotz's] lot for only about 150 to 250 feet.
Ferris had given the former owner, Bill Cain, permission to
erect a gate on Cabin Lane under the condition that Ferris be
provided a key in order to access his land. A simple gate was
2 The record actually reflects that Rotz's property consisted of 1.428 acres.
-2-
J. A13020/08
erected. The purpose of the gate was to prevent trespassers
from driving unto [sic] the property to drink. The gate was not
on the property line. It was positioned slightly within Cain's
property. The simple gate was later replaced by a metal gate,
which currently bars access to [Ferris'] land. Previously the key
to the gate was left on a nail on the side of the storage shed
near the gate. For a period of time Ferris was allowed access to
his property, but Rotz removed the key from the nail less than
two years ago. Ferris has not been provided with a key for the
new gate since the removal and subsequently cannot access his
property.
On December 18, 2006, this Court, in the presence of both
party's [sic] attorneys, conducted a view of Cabin Lane and all
properties adjacent to it. [Rotz's] land, while surrounded by
forest, has been cleared around the trailer and driveway. The
road leading to [Rotz's] trailer is surrounded by grass and
covered by gravel stones. If one continues along Cabin Lane, it
leads to the metal gate erected by Bill Cain. The gate is clearly
visible from the gravel road and is located just a few yards
beyond [Rotz's] sheds...
The Ferris property begins a short distance from the metal
gate. The lane beyond the metal gate is cleared and also
covered in gravel, though not as thoroughly as on the other
portions leading to the gate. The land on the Ferris property is
surrounded by forest on both sides.
Defendant Bruce Rotz claims that he decided to keep the
gate closed, and thereby prevent Ferris access to his property, in
order to protect his septic system. He does not want Ferris to
drive over his septic system pipes and is not open to the idea of
improving the site in order to protect the pipes beneath the lane.
He maintains that at some unknown time in the future he may
build a house for his son, and Cabin Lane would interfere with
"the setbacks" of his house.
Trial Court Opinion, 7/25/07, at 2-4 (original footnotes omitted).
Following the denial of their post-trial motion, Rotz filed this appeal,
presenting a single issue: "Where the claimed easement track passes
-3-
J. A13020/08
through both cleared land and wooded land on the Rotz property before the
easement track reaches the adjoining Ferris property, do the provisions of
the Unenclosed Woodlands Act prevent Ferris from obtaining an easement[]
by prescription across the Rotz property?" Rotz Brief at 4.3
Because this appeal is from the entry of judgment following a non-jury
trial, the following general principles apply to our review:
Our review in a nonjury case is limited to whether the findings of
the trial court are supported by competent evidence and whether
the trial court committed error in the application of law. We
must grant the court's findings of fact the same weight and
effect as the verdict of a jury and, accordingly, may disturb the
nonjury verdict only if the court's findings are unsupported by
competent evidence or the court committed legal error that
affected the outcome of the trial. It is not the role of an
appellate court to pass on the credibility of witnesses; hence we
will not substitute our judgment for that of the factfinder. Thus,
the test we apply is not whether we would have reached the
same result on the evidence presented, but rather, after due
consideration of the evidence which the trial court found
credible, whether the trial court could have reasonably reached
its conclusion.
Hollock v. Erie Insurance Exchange, 842 A.2d 409, 413-414 (Pa. Super.
2004) (en banc) (quotation marks and citations omitted). As the finder of
fact, the trial court was free to believe all, part or none of the evidence
presented to it. Laconis v. Burlington County Bridge Commission, 583
A.2d 1218, 1221 (Pa. Super. 1990), appeal denied, 529 Pa. 615, 600 A.2d
3 We note that Rotz's Brief violates Pa.R.A.P. 2111(a)(10) and (d), in that it
does not include a copy of his Pa.R.A.P. 1925(b) statement of errors.
-4-
3. A13020/08
532 (1991). This court is not bound by the trial court's conclusions of law
but is free to draw its own inferences and conclusions from the facts
established. Minteer v. Wolfe, 446 A.2d 316, 318 (Pa. Super. 1982)
(citation omitted).
Rotz argues that Ferris' use of Cabin Lane as a prescriptive easement
is barred because the lane passes through Rotz's unenclosed woodland. We
disagree.
"An easement or right-of-way by prescription arises by adverse, open,
continuous, notorious, and uninterrupted use of the land for twenty-one
years." Waltimyer v. Smith, 556 A.2d 912, 913 (Pa. Super. 1989).
Common law permitted prescriptive easements over open woodlands if the
prerequisites for a prescriptive easement were met. Worral v. Rhoads, 2
Whart. 427 (Pa. 1837). However, the Act of 1850, April 25, P.L. 569, § 21,
68 P.S. § 411 (Unenclosed Woodlands Act) ("the Act of 1850"),4 modified
the common law by providing that "[n]o right of way shall be hereafter
acquired by user, where such way passes through uninclosed woodland; but
on clearing such woodland, the owner or owners thereof shall be at liberty to
enclose the same, as if no such way had been used through the same before
such clearing or enclosure." 68 P.S. § 411. "The act is so plain that it
4 The Act of 1850 was inadvertently repealed by the Act of 1974,
December 10, P.L. 867 No. 293, § 19. It was then reenacted and given
retroactive application to December 10, 1974, by the Act of 1981, July 1,
P.L. 198, No. 61, §§ 1, 2.
-5-
J. A13020/08
admits of but one meaning, viz. that a right by prescription to a road
through unenclosed woodland cannot be obtained." Kurtz v. Hoke, 172 Pa.
165, 173, 33 A. 549, 550 (1896).5 The burden of proving that the Act of
1850 bars a prescriptive easement rests on the party asserting it. See
Pa.R.C.P. 1030 (New Matter).
Applying the Act of 1850, Pennsylvania courts have consistently held
that a prescriptive easement may not be acquired through unenclosed
woodland. Kurtz, supra; Trexler v. Lutz, 118 A.2d 210 (Pa. Super.
1955); Humberston v. Humbert, 407 A.2d 31 (Pa. Super. 1979); Martin
v. Sun Pipe Line Co., 542 Pa. 281, 666 A.2d 637 (1995); Sprankle v.
Burns, 675 A.2d 1287 (Pa. Super. 1996), appeal denied, 546 Pa. 683, 686
A.2d 1312 (1996). Even when only a portion of the right of way passes
through the unenclosed woodland of another, the entire easement must fail.
5 As the trial court explained,
[T]he origins of [the Act of 1850] are deeply rooted in pre-
existing Pennsylvania land conditions. At the time of enactment,
great areas of timber existed which, for a multitude of possible
reasons, were not able to be enclosed. Accordingly, in such
times property owners were unable to defend against the
acquisition of a prescriptive way through such tracts as they
were often undetected in the wooded land and changed due to
new growth or other obstructions. It was with these very
instances in mind that the Act of 1850 was enacted. Babcock
Enterprises, Inc. v. The Wilderness Club, 27 Pa. D&C.3d 84,
89 (Somerset County 1982).
Trial Court Opinion, 7/25/07, at 5-6.
-6-
1. A13020/08
Trexler, 118 A.2d at 211. Moreover, when considering whether an area
entails "unenclosed woodlands," our courts have held that the character of
the land itself is determinative. Sprankle, 675 A.2d at 1289; Minteer, 446
A.2d at 321; Humberston, 407 A.2d at 32.
Recognizing that the Act of 1850 "was obviously intended to protect
unenclosed woodlands against claims of prescriptive rights arising from
adverse user," we held in Eble v. Jones, 44 A.2d 761, 762 (Pa. Super.
1945), that nothing "contained in the act prohibits the owner from
establishing a road on his own unenclosed woodland even if it is a
continuation of the right of way secured by prescription upon his neighbor's
land." Also, in Matakitis v. Woodmansee, 667 A.2d 228 (Pa. Super.
1995), appeal denied, 545 Pa. 680, 682 A.2d 311 (1996), we declined to
apply the Act of 1850 because the land supporting the right-of-way was a
"relatively small lot contain[ing] a residential building, as well as open areas
near the beach" and, as such, could not be considered enclosed woodlands.
Id. at 232 n.2. Similarly, this Court declined to apply the Act of 1850 where
"the land surrounding the lane was not woodland within the meaning
contemplated by the Act of 1850. Rather, the growth . . . consisted of a
fence row of trees and brush as is commonly found to exist on the boundary
lines of land located in rural areas." Minteer, 446 A.2d at 321.
Herein, the trial court opined as follows:
-7-
3. A13020/08
[H]aving conducted a view, and considering the testimony and
photographic evidence we do not find that the land surrounding
the lane is "unenclosed woodland" within the meaning
contemplated by the Act of 1850. There are five homes on the
private road knows as Cabin Lane. The number of trees around
the homes are [sic] similar to that commonly surrounding many
homes located in rural Pennsylvania. In short, [Rotz's] 1.428
acre property is simply a home lot from which most of the forest
has been cleared. The area between the gate and [Ferris'] line
is so close to the clearing containing [Rotz's] residence that we
cannot classify the area under the category of "unenclosed
woodlands" given the purpose and history of that statute. . .
The fact that [Rotz is] able to see any vehicles which may
traverse their land gives us even greater cause to believe that
the statute does not apply to this particular situation. We
therefore find that the lane does not pass through unenclosed
woodland and accordingly find that the easement by prescription
is warranted in this specific instance.
Trial Court Opinion, 7/25/07, at 6-7. In sum, the trial court determined that
Rotz did not prove the affirmative defense that the Act of 1850 barred Ferris'
acquisition of a prescription easement over Cabin Lane.
Upon review, we conclude that the record supports the trial court's
findings of facts.6 Moreover, giving deference to the fact that the trial court
conducted a view of the property and was free to believe all, part or none of
the evidence presented, we further conclude that its conclusions of law are
without error.
6 We note a minor discrepancy between Ferris' testimony that Cabin Lane
crossed Rotz's property for "Maybe 150 feet," N.T., 12/20/06, at 22, and the
trial court's finding that Cabin Lane crossed Rotz's property for "only about
150 to 250 feet." Trial Court Opinion, 7/25/07, at 3.
-8-
1. A13020/08
The trial court heard conflicting testimony regarding where the gate
was situated in relation to the property boundaries and the nature of the
land surrounding Cabin Lane. Relying on a photograph of the gate taken
from his property, Ferris identified his boundary in relation to the gate as
being below a large rock in the lower right hand corner of the photograph;
"the forest land actually begins on my ground," Ferris explained. N.T.,
12/20/06, at 18-19, 25; Plaintiffs' Exhibit 8. He also described the nature of
Rotz's property surrounding Cabin Lane as being the same now as it was
when he bought his property in 1972, that is, a recreational site, with the
exception that Rotz's property is now a permanent residence. N.T.,
12/20/06, at 16. Relying on a survey from 1978, Rotz testified that the gate
sat "approximately in the middle" of his property. N.T., 12/20/06, at 54;
Plaintiffs' Exhibit 4. He described the nature of his property surrounding
Cabin Lane as forest. N.T., 12/20/06, at 38-39.
In light of the trial court's disposition, we conclude that the trial court
based its decision on a view of the property and Ferris' testimony regarding
the nature of the land surrounding Cabin Lane and the property boundaries.
We will not substitute our judgment for that of the trial judge who walked
the property, assessed the credibility of the witnesses, and weighed the
evidence presented. Hollock, 842 A.2d at 413-414. Moreover, in
Matakitis, we confirmed a trial court's conclusion that the Act of 1850 did
-9-
J. A13020/08
not bar a prescriptive easement where the right-of-way ran through a lot
containing a residential building and open areas near the beach. Herein, the
record reflects that Cabin Lane passes through various home sites, including
Rotz's property which contains a residential building, sheds, and a septic
system. Therefore, we hold that the trial court did not err in determining
that such land, including the small area of Rotz's property beyond the gate,
is not unenclosed woodland within the meaning contemplated by the Act of
1850. Therefore, the Act of 1850 does not operate to bar Ferris' acquisition
of a prescriptive right to use and enjoy Cabin Lane. Accordingly, we affirm
the judgment entered in favor of Ferris.
Judgment affirmed.
Judgment Entered:
y c
e uty Prothonotary
July 23, 2008
Date:
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• CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
SUPERIOR COURT OF PENNSYLVANIA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
WILLIAM E. FERRIS AND KERRI E. FERRIS
VS.
BRUCE ROTZ AND PATSY ROTZ
2004-6370 CIVIL TERM
1039 MDA 2007
• The documents comprising the record have been numbered from No.l to 142, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 07-26-07 .
L
Cu ~ 1Z. Long, Prothonota
Regina K. Lebo, Deputy
An additional copy of this certificate is enclosed Please sign and date copy, thereby
acknowledging receipt of this record.
Date Signature &~~p FI~E~ 1N SUP
ERI~R ^:~URT
n I~ 2 ~ 2007
• fv11D®LL
• CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
SUPPLEMENTAL RECORD
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
WILLIAM E. FERRIS AND KERRI E. FERRIS
VS.
BRUCE ROTZ AND PATSY ROTZ
2004-6370 CIVIL TERM
1039 MDA 2007
The documents comprising the record have been numbered from No.142 to 161, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 06/2612008 .
Curt's R. Lon onot
Regina Lebo
An additional cony of this certificate is enclosed Please sign and date copy thereby
acknowledging receipt of this record.
Date
Signature & Title
~etved to Sopenor Coup
JuN 2 6 200
MIL3~~~