HomeMy WebLinkAbout04-6390IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
James B. Small, Sr.
Barbara H. Small : No. OL! 1 3 96
?fL'rl
Plaintiffs
VS.
Kimberly M. Reed
Defendant
: 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
James B. Small, Sr.
Barbara H. Small :No. O? - L3 4C?
Plaintiffs
VS. : Civil Action - Law
Kimberly M. Reed
Defendant
COMPLAINT
C;uC`r"
AND now, come the Plaintiffs, James B. Small, Sr. and Barbara H. Small, by and
through their attorney, H. Anthony Adams and state the following cause of action and
in support thereof, aver as follows:
1.
Plaintiffs are James B. Small, Sr. and Barbara H. Small, adult individuals who
reside at 1007 Newburg Road, Cumberland County, Shippensburg, Pennsylvania,
17257.
2.
Defendant is Kimberly M. Reed, an adult individual, who resides at 221
Walnutdale Road in 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 January 6, 1978 and
W.
Plaintiffs have enjoyed free and uninterrupted use of a 12-foot wide right-of-way
over the lands of Defendant since January 6, 1978.
7.
The right-of-way is apparent upon view of the land owned by Defendant and was
apparent at the time Defendant purchased the land.
8.
The use of the road by the Plaintiffs has been open, hostile, visible and
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Made the
Parcel ID No. 39-14-0165-OOIE
Indenture
day of `.J U 1 , 2004,
Between
THERESA MAE FREMICHER, single woman, of 8813 Sundale Drive, Silver Spring, Maryland 20910-
5039 -------------------------------------------------- (hereinafter called the Grantor), of the one part, and
KIMBERLY M. REED, single, of 325 West Creek Road, Newburg, Pennsylvania 17240 -------------_____w_?__
__---------- ----------- _--------- _----- _----- _---- -hereinafter called the Grantees), of the other part,
W i t n e s s e t h, that the said Grantor for and in consideration of the sum of Thirty-Five Thousand And
001100 Dollars (S35,000.00) lawful money of the United States of America, unto her well and truly paid by the
said Grantee, at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, has
granted, bargained and sold, released and confirmed, and by these presents does grant, bargain and sell, release
and confirm unto the said Grantee, her heirs and assigns,
ALL that certain lot or piece of ground situate in the Township of Southampton, Cumberland County and
Commonwealth.of Pennsylvania, bounded and limited as follows:
BEGINNING at a point in the center of Township Road T-323 at comer of lands now or formerly of Glen
Plaster, said point being the northwesterly most corner of the within described premises; thence South 10 degrees
37 minutes 45 seconds West 337.77 feet through an iron reference pin and along said Plaster land to an iron pin
for a corner in he of land now or formerly of Cal Cramer; thence North 89 degrees 13 minutes 5 seconds East
268.58 feet to an iron Pin for a corner, said being in line of land now or formerly of Richard Ott, thence along
line of said Ott land North 19 degrees 28 minutes 23 seconds East 300.85 feet to an iron pin for a comer; thence
South 88 degrees 28 minutes 25 seconds West 30.42 feet to an iron pin for a corner; thence North 80 degrees 38
minutes 54 seconds West 279.86 feet to the point and place of beginning.
CONTALNflNG 1.896 acres, more or less, exclusive of dedicated right-of-way area.
THE ABOVE DESCRIBED REAL ESTATE is the same premises which Joseph B. Hazzard and Esther M.
Hazzard, his wife, by deed dated September 18, 1978, and recorded September 28, 1978, in and for Cumberland
County, in the Office of the Recorder of Deeds, in Deed Book 28-B, Page 588, granted and conveyed unto
Theresa Mae Freilicher, single woman, Grantor herein.
UNDER AND SUBJECT to an easement dedication of twenty-five (25) feet from the existing physical
centerline of Township Road T-323 for roadway, drainage and utility purposes.
Bppt 2U4 F-A1 ? : 575
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
James B. Small, Sr. ?` UL,?
Barbara H. Small : No. !J? - 3 96 ?1-?1
Plaintiffs
VS.
Kimberly M. Reed
Defendant
: 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
James B. Small, Sr.
Barbara H. Small : No. 4(')
Plaintiffs
VS. : Civil Action - Law
Kimberly M. Reed
Defendant
COMPLAINT
aCx.C`??
AND now, come the Plaintiffs, James B. Small, Sr. and Barbara H. Small, by and
through their attorney, H. Anthony Adams and state the following cause of action and
in support thereof, aver as follows:
1.
Plaintiffs are James B. Small, Sr. and Barbara H. Small, adult individuals who
reside at 1007 Newburg Road, Cumberland County, Shippensburg, Pennsylvania,
17257.
2.
Defendant is Kimberly M. Reed, an adult individual, who resides at 221
Walnutdale Road in 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 January 6, 1978 and
recorded in the Office of the Recorder of Deeds in and for Cumberland County in Deed
Book 27-P at page 394. A copy of the deed is attached hereto as Exhibit A.
4.
Defendant is the owner of land located in Southampton Township, Cumberland
County, Pennsylvania along Cabin Lane as a result of a deed of conveyance dated July
22, 2004 and recorded in the Office of the Recorder of Deeds in and for Cumberland
County in Deed Book 264 at page 1975. A copy of the deed is attached hereto as
Exhibit B.
5.
The Defendant's 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 lands of Defendant since January 6, 1978.
7.
The right-of-way is apparent upon view of the land owned by Defendant and was
apparent at the time Defendant purchased the land.
8.
The use of the road by the Plaintiffs has been open, hostile, visible and
continuous since January 6, 1978.
COUNT I - EASEMENT IMPLIED BY NECESSITY
9.
Plaintiffs incorporate paragraphs 1 through 8 of the Complaint by reference as if
set forth in their entirety.
10.
Plaintiffs allege that Defendant, upon her purchase of the lands through which
the dirt road runs, was aware of the existence of the use of the road and its permanent
nature.
11.
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.
12.
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 right of way an actual necessity.
13.
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 Defendant's land for ingress, egress and regress for the beneficial use and
enjoyment of Plaintiffs' property.
COUNT II - ADVERSE USE
14.
Plaintiffs incorporate paragraphs 1-13 of the Complaint by reference as if set
forth in their entirety.
15.
Plaintiffs and their predecessors in title have not used the dirt road with any
permission or willing consent of the Defendant or Defendant's predecessor in title.
16.
Plaintiffs and their predecessors in title used the dirt road right of way openly
and with knowledge of such use communicated to Defendant and her predecessors in
title.
17.
The dirt road right of way has been used continuously and openly without
hindrance for a period in excess of 40 years.
18.
The use of the private direct road has established the road as an easement.
COUNT III - EXPRESS EASEMENT
19.
Plaintiffs incorporate paragraphs 1 through 18 of the Complaint by reference as if
set forth in their entirety.
20.
Defendant accepted her land as set forth in the Exhibit subject to Plaintiffs'
easement all of which are shown on a draft of survey of Defendant's predecessor in title
attached hereto marked Exhibit C.
21.
Defendant's 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, James B. Small, Sr. and Barbara H. Small, respectfully
requests this Honorable Court to enter judgment in their favor of and against Defendant
and enter an Order of Court on Count I of this Complaint awarding Plaintiff easement
by necessity across Defendant's property; or in the alternative, enter an Order of Court
in accord with Count II of this Complaint, awarding Plaintiffs an easement by
prescription for ingress and egress to and from Plaintiffs' property and across
Defendant's 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 Defendant from obstructing, blocking, or otherwise interfering with
Plaintiffs' right to access through Defendant's land; and, upon the hearing, enjoin the
Defendant from obstructing, blocking or otherwise interfering with Plaintiffs' use of the
dirt road and Plaintiffs' right of access over said dirt road through Defendant's land, and
FURTHER that this Court order the Defendant to remove any gates, posts, fences,
barriers, barricades or other obstructions, which she 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 Defendant's 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 Defendant 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: ( o? --10 /0((
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: 1141 U ? /
l? q ??
Date:
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This
Parcel ID No. 39-14-0165-OOIE
Indenture
C\j
Made the 22ND day of `J U 1 , 2004,
Between
THERESA MAE FREILICHER, single woman, of 8813 Sundale Drive, Silver Spring, Maryland 20910-
5039 _------- _-__----------- (hereinafter called the Grantor), of the one part, and
KIMBERLY M. REED, single, of 325 West Creek Road, Newburg, Pennsylvania 17240
_-__-------- ___-------- _----- _--_----- _----- ----- {hereinafter called the Grantees), of the other part,
W i t n e s s e t h, that the said Grantor for and in consideration of the sum of Thirty-Five Thousand And
00/100 Dollars (S35,000.00) lawful money of the United States of America, unto her well and truly paid by the
said Grantee, at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, has
granted, bargained and sold, released and confirmed, and by these presents does grant, bargain and sell, release
and confirm unto the said Grantee, her heirs and assigns,
ALL that certain lot or piece of ground situate in the Township of Southampton, Cumberland County and
Commonwealth.of Pennsylvania, bounded and limited as follows:
BEGINNING at a point in the center of Township Road T-323 at corner of lands now or formerly of Glen
Plaster, said point being the northwesterly most corner of the within described premises; thence South 10 degrees
37 minutes 45 seconds West 337.77 feet through an iron reference pin and along said Plaster land to an iron pin
for a corner in line of land now or formerly of Cal Cramer; thence North 89 degrees 13 minutes 5 seconds East
268.58 feet to an iron Pin for a corner, said being in line of land now or formerly of Richard Ott, thence along
line of said Ott land North 19 degrees 28 minutes 23 seconds East 300.85 feet to an iron pin for a comer; thence
South 88 degrees 28 minutes 25 seconds West 30.42 feet to an iron pin for a corner; thence North 80 degrees 38
minutes 54 seconds West 279.86 feet to the point and place of beginning.
CONTAINING 1.896 acres, more or less, exclusive of dedicated right-of-way area.
THE ABOVE DESCRIBED REAL ESTATE is the same premises which Joseph B. Hazzard and Esther M.
Hazzard, his wife, by deed dated September 18, 1978, and recorded September 28, 1978, in and for Cumberland
County, in the Office of the Recorder of Deeds, in Deed Book 28-B, Page 588, granted and conveyed unto
Theresa Mae Freilicher, single woman, Grantor herein.
UNDER AND SUBJECT to an easement dedication of twenty-five (25) feet from the existing physical
centerline of Township Road T-323 for roadway, drainage and utility purposes.
e 2U4 Far,1575
ALSO UNDER AND SUBJECT to the restriction and condition that the within described premises shall not be
used by grantees, their heirs or assigns, for any form or manner of race track purposes, either automobile or
motorcycle or the like.
Together with all and singular the buildings and improvements, ways, streets, alleys, driveways,
passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever
unto the hereby granted premises belonging, or in anywise appertaining, and the reversions and remainders,
rents, issues, and profits thereof; and all the estate, right, title, interest, property, claim and demand
whatsoever of her, the said grantor, as well at law as in equity, of, in and to the same.
To have and to hold the said lot or piece of ground described above, with the buildings and
improvements thereon erected, hereditaments and premises hereby granted, or mentioned and intended so to
be, with the appurtenances, unto the said Grantees, their heirs and assigns, to and for the only proper use and
behoof of the said Grantees, their heirs and assigns, forever.
And the said Grantor, for herself and her heirs, executors and administrators, does, by these presents,
covenant, grant and agree, to and with the said Grantees, their heirs and assigns, that she, the said Grantor,
and her heirs, all and singular the hereditaments and premises herein described and granted, or mentioned and
intended so to be, with the appurtenances, unto the said Grantees, their heirs and assigns, against her, the said
Grantor, and her heirs, and against all and every other person and persons whosoever lawfully claiming or to
claim the same or any part thereof, by, from or under him, her, it, or any of them, shall and will
Specially Warrant and Forever Defend.
In Witness Whereof, the party of the first part has hereunto set her hand and seal. Dated the day and
year first above written.
Sealed and Delivered
IN THE PRESENCE OF US:
?> tU/ SEAL}
'Theresa Mae FreWcher
BOOK 264 FAA976
State of r?
11 ss
County of Mc ?f 1 Vh e/ Y :
>
On this, the day of t- k J`?/ 2004, before me, a Notary Public for the
- Commonwealth of Pennsylvania, residing in the County of Cumberland, the undersigned Officer, personally
appeared Theresa Mae Freilicher, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
I Certify this to be recorded
In Cumberland County PA
.. I... _rrlnn?iS
The address of the above-named Grantees is:
325 West Creek Road
Newburg, PA 17240
I - _( . ?-7
behalf o the rantees
cTxo2.3s
Notary Public r
My commission expires I (?
MC)NA B. Fitt
NOTARY PUBLIC ?7TATE C" r d County Recorder of feeds
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my commission
pir.s Marc Instrument Filins
Receipt& 510082
InstrR 2004-030540 7012004 15:2910
Reiarks: FRAM LIN
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DEED 11.57
DEB - VRIT .0
DEED - RTT STATE 341 00
SHIPPENSBURS AREA 175.4
SOUTHAMPTON TV 175.11
DEED - A/H 11."1
C.S. / A.T.J. 10. 5
CO IMPROVEOff FND 2.1 J
FIG. IMPRAT FUND 3.1)
CheckR 42027 L-I8.0
Check-1 42029 $350.0
CheckR 42028 $350.19
Total Received....... $7358.m
ooox 264 PAGEJL977
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20J•uT-_W., nnty Deed, Short Form. Act of 1909. Single Sheet.
19Cur, r,nff, Inc., Winno.'1'n.
'Tbi40 ;Deeb'
MADE THE day of January in the year
of our Lord one thousand nine hundred and seventy-eight (1978)
BETWEEN WILLIAM K. NYE and MARY RUTH NYE, his wife, of Newburg
in the County of Cumberland and Commonwealth of Pennsylvania,
parties of the first part as Grantors ,
and
JAMES B. SMALL, SR. and BARBARA II. SMALL, 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 Twelve Thousand Five Hundred ($12, 500.00)
-------------------------------------------------------------- Dollars,
in hand paid, the receipt whereof is hereby acknowledged, the said grantor S do hereby grant and
convey to the said grantee s , ALL that certain tract of mountain land situate
in the Township of Southampton, County of Cumberland and Commonwealth
of Pennsylvania, bounded and described as follows, to-wit:
BEGINNING at an iron pin set in stones, said point beipg common
to land now or formerly of Clarence Tioga and land now or
formerly of the Commonwealth of Pennsylvania; thence by land
now or formerly of the Commonwealth of Pennsylvania, North
II?III1111(11(gighty-nine (89) degrees twenty-nine, (29) minutes fifty (50)
ipeconds West one hundred eighty-four and seventy-seven hundredths
X184.77) feet to a stone pile at corner of land now or formerly
of James B. Small, Jr.; thence by Small land North sixty-five
k65) degrees seventeen (17) minutes twenty-one (21) seconds West
c" Four hundred eighty-seven and forty hundredths (487.40) feet-to
?n iron pin set in stones at corner of land now or formerly of
C. Edgar Strohm; thence by Strohm land North twelve (12) degrees
('?"; =forty-six (46)minutes forty-eight (48) seconds West two thousand
4seven hundred sixty-seven and eighty-two hundredths (2,767.82)
..'
feet to an iron pin set in stones; thence North thirty-six (36)
degrees no (0) minutes one (1) second East three hundred thirty-
eight and forty hundredths (338.40) feet to an exposed iron pin
>li„ in stones; thence South eighty (80), degrees twenty-three (23)
minutes forty (40) seconds Fast one hundred thirty-eight and
seventy-seven hundredths (138.77) feet to an iron pin at land now
or formerly of Clarence Tioga; thence by Tioga land South fifteen
0(15) degrees fifty-nine (59) minutes nineteen (19) seconds East
three thousand two hundred eighty-two and twenty-one hundredths
(3,282.21) feet to an iron pin set in stones at land now or formerly
of the Commonwealth of Pennsylvania, the place of BEGINNING. Con-
taining 33.6664 acres, per survey of Carl D. Bert, R. S., dated
November 19, 1976, and designated at Tracts "C", "D" and "E"
thereon.
BEING all those certain tracts of mountain land conveyed by J. Paul
Stone and Beda R. Stine, his wife, to William K. Nye and Mary Ruth
Nye, his wife, Grantors herein, by their deed dated the 4th day of
June, 1965 and recorded in the office for Lhe recording of deeds in
and for the County of Cumberland in Deed Book "P", Vol. 21, Page
822. ? ?> >? ,<, f _ c_ ., P."•N,r' J'?%;- •Lllt i
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School 61s . Cumb. Co., Pa.
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AND the said grantor hereby covenant S and agree s that they and each of them will warrant
generally the property hereby conveyed.
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so0K 27 enr1E 394
C-p- -t \,-".1\V--, ,?
IN WITNESS WHEREOF, said grantors ho Ve hereunto set their hand and seal s
the day and year first above written.
*'itlitet), ralal and iletiurrrb r4h f1. ?r?--,`•-:-.------ - f ------ --------------- SEAL
in Illy Llrrerurr of -P
- - -----------------
----------- S f
--------------- ---------
- ____.____._______________________________ SEAL
State of Pennsylvania
ss.
County of Cumberland '
On this, the 6 A day of January 19 78 , before me,
the undersigned officer, personally appeared William K. Nye and Mary Ruth Nye, his
wife,
known to me (or satisfactorily proven) to be the persons whose name s are subscribed ta•t!0! W
in instrument, and acknowledged that they execut same for the purposes therei Spnfai
IN WITNESS WHEREOF, t hereunto set my ha d and offs ta d l seat. ri yty.
.v
140TARY Pt1CLIC
My Commission Expires 4ary.. Public
Shippensburg, Pa. Cumberland County Title of Officer. •'
My Comm. expires:
do hereby cert'fy that the- recise residepce and complete post office address of
the within named grantee is , 'leL, L f p?C?' 7
197 ....`- ....... ..................... .............(......?.... ............. ........ J...
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RECORDED on this ...... ............ ................../.........J.... day of ..............................._......Zo??
A. D. 19.,/....1,1...,, in the Recorder's office of the said County, in Deed Vol ...............s..._?...., page --
Given under my ha_pd and of the said office, the date above written.
. .... .... Recorder.
Boa 27 PncE 395
U ?J v l:
James B. Small, Sr. : IN THE COURT OF COMMON
Barbara H. Small : PLEAS OF CUMBERLAND
: COUNTY, PENNSYLVANIA
Plaintiffs.
V. NO. 04-6390 -CIVIL TERM
Kimberly M. Reed
Defendant.
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed Answer with New Matter
and Counterclaim within twenty (20) days from service hereof or a judgment may be entered
against you.
SALZMANN HUGHES, PC
ac.k
James D. Hughes, Esquire
Supreme Court I.D. No. 58884
Kelly M. Dick„ Esquire
Supreme Court I.D. No. 93167
95 Alexander Spring Road, Suite 3
Carlisle, PA 17013
(717) 249-6333
Attorneys for Defendant,
Kimberly M. Reed
Date: February 11, 2005
James B. Small, Sr.
Barbara H. Small
Plaintiffs.
V.
Kimberly M. Reed
Defendant.
: IN THE COURT OF COMMON
: PLEAS OF CUMBERLAND
: COUNTY, PENNSYLVANIA
NO. 04-6390 -CIVIL TERM
ANSWER WITH NEW MATTER AND COUNTERCLAIM
TO PLAINTIFFS' COMPLAINT
AND NOW this I I'h day of February, 2005, comes the Defendant, KIMBERLY M. REED,
by and through her attorneys, Salzmann Hughes, PC, and respectfully files this Answer with New
Matter and Counterclaim to Plaintiff's Complaint dated December 20, 2004, and in support
thereof aver as follows:
Admitted. The averments of fact contained in paragraph (1) are admitted.
Admitted. The averments of fact contained in paragraph (2) are admitted.
Admitted. The averments of fact contained in paragraph (3) are admitted.
4. Admitted. The averments of fact contained in paragraph (4) are admitted.
5. Denied. The averments contained in paragraph (5) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
6. Denied. The averments of fact contained in paragraph (6) are denied. After reasonable
investigation, Defendant is without knowledge or information sufficient to form a belief
as to the truth of the averments stated in paragraph (6) and strict proof thereof is
demanded at trial.
Denied. The averments contained in paragraph (7) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial. By way of further
answer, a narrow, unpaved cartway was, at the time of Defendant's purchase, visible, but
Defendant had no knowledge of Plaintiffs' entitlement to use thereof as survey obtained
by Defendant did not show Plaintiffs as permitted users of Cabin Lane.
Denied. The averments contained in paragraph (8) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
COUNT I-EASEMENT IMPLIED BY NECESSITY
9. The averments of fact contained in the Defendant's Answers above are hereby
incorporated by reference as if fully set forth below.
10. Denied. The averments contained in paragraph (10) are specifically denied and strict
proof thereof is demanded at trial.
11. The averments of fact contained in paragraph (11) are admitted in part and denied in
part. It is admitted that the road is an open and visible roadbed. After reasonable
investigation, Defendant is without knowledge or information sufficient to form a belief
as to the truth of the remaining averments stated in paragraph (11) and strict proof
thereof is demanded at trial.
12. Denied. The averments contained in paragraph (12) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial. By way of further
answer, Plaintiffs have access to a state road that Defendant believes and avers has
always been Plaintiffs' means of ingress, egress and regress to his mountain ground
property.
13. Denied. The averments contained in paragraph (13) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial. By way of further
answer, Plaintiffs' land abuts a state road that provides Plaintiffs with a means of ingress,
egress and regress to Plaintiffs' mountain ground property. Because of this alternate
means to access Plaintiffs' mountain ground property, Plaintiff s land is not land locked.
COUNT II-ADVERSE US:E
14. The averments of fact contained in the Defendant's Answers above are hereby
incorporated by reference as if fully set forth below.
15. The averments of fact contained in paragraph (15) are admitted in part and denied in
part. It is admitted that the Defendant did not give the Plaintiffs permission to use the
road. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the remaining averments stated in paragraph
(15) and strict proof thereof is demanded at trial.
16. Denied. The averments of fact contained in paragraph (16) are conclusions of law to
which no response is required. To the extent that a response is required, the averments
are specifically denied and strict proof is demanded at trial.
17. Denied. The averments of fact contained in paragraph (17) are conclusions of law to
which no response is required. To the extent that a response is required, the averments
are specifically denied and strict proof is demanded at trial.
18. Denied. The averments of fact contained in paragraph (18) are conclusions of law to
which no response is required. To the extent that a response is required, the averments
are specifically denied and strict proof is demanded at trial.
COUNT III-EXPRESS EASEMENT
19. The averments of fact contained in the Defendant's Answers above are hereby
incorporated by reference as if fully set forth below.
20. Denied. The averments of fact contained in paragraph (20) are conclusions of law to
which no response is required. To the extent that a response is required, the averments
are specifically denied and strict proof is demanded at trial. By way of further answer,
Plaintiff s Exhibit "C" does not show a recorded easement permitting Plaintiffs' use of
Cabin Lane or that Plaintiffs' property abuts Cabin Lane.
21. Denied. The averments of fact contained in paragraph (21) are specifically denied and
strict proof is demanded at trial.
WHEREFORE, Defendant respectfully requests this Honorable Court to enter a judgment in
Defendant's favor and against Plaintiffs in this matter, together with reasonable court costs,
attorneys' fees and other such relief as this Court deems just.
NEW MATTER
22. The averments of fact contained in the Answers to the Complaint are hereby
incorporated by reference and are made part of this New Matter to the Complaint of the
Plaintiff.
23. Plaintiffs obtained a twenty-five (25) foot right-of-way from Stanley Rickrode, an
adjacent landowner of the Defendant, in order to obtain access to Cabin Lane from their
mountain ground property as evidenced by a right-of-way agreement recorded October
23, 2002, in Book 691, Page 1128.
24. The right-of-way granted to Plaintiffs by Stanley Riclarode specifically states that the
right-of-way is to be used for residential access only; thus, logging is beyond the scope
of the granted easement.
25. On or about August 11, 2004, Mr. Small told the Defendant that he was unaware anyone
owned Cabin Lane. The Defendant informed Mr. Small that she and Kevin Young, an
adjacent landowner, both owned the portion of Cabin Lane that Mr. Small was
attempting to use.
26. On or about August 11, 2004, Mr. Small asked the Defendant for permission to use
Cabin Lane for logging purposes, but the Defendant refused to give Mr. Small such
permission.
27. On or about August 26, 2004, Mr. Small entered Defendant's portion of Cabin Lane with
a truck hauling a loader. The Defendant approached Mr. Small and again informed him
that he had no permission to be on her portion of Cabin Lane for any type of logging
activity.
28. On or about January 31, 2005, logging activities began whereby it is believed and
averred that Mr. Small had instructed several logging trucks to enter his mountain
ground property via Defendant's portion of Cabin Lane.
29. Because there does exist another means of ingress and egress to the Plaintiffs' land via
Three Turn Road, the Plaintiffs' land is not land locked thereby resulting in an easement
by necessity over the Defendant's land.
30. The express easement stated in the deed for Defendant's property is an easement for a
twenty-five (25) foot right-of-way from the centerline of Township Road T-323, also
known as Walnut Dale Road, for roadway, drainage and utility purposes and is unrelated
to the use of Cabin Lane.
31. The Defendant did not take her land subject to an express easement providing for the use
of Cabin Lane, which is located south of T-323.
32. There exists no express easement permitting the Plaintiffs' use of the road known as
Cabin Lane to access Plaintiffs' mountain ground property.
33. Defendant's property is unenclosed woodland as the land is forested land, a portion of
which was cleared by the Defendant shortly after purchase on July 22, 2004, for the
purpose of constructing a dwelling to be used as Defendant's primary residence. No
portion of Defendant's land is enclosed by a fence or other barrier.
34. The Unenclosed Woodland Act of 1850 provides 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." See 68 P.S. §411.
35. To the extent the Plaintiffs establish a prescriptive easement over Defendant's land, the
Unenclosed Woodland Act of 1850 operates to prohibit the acquisition of a prescriptive
easement through unenclosed woodlands.
36. To the extent Plaintiffs establish an easement of ingress, egress and regress via Cabin
Lane to Plaintiffs' mountain ground property, such easement has not been previously
used for logging purposes, which is a use that places a greater burden on the easement.
WHEREFORE, Defendant Kimberly M. Reed respectfully requests this Honorable Court
to enter judgment in her favor and against Plaintiffs in this matter and to issue a permanent
injunction enjoining the Plaintiffs from any and all logging activity by Plaintiffs on Cabin Lane;
order Plaintiffs to restore said lane to its existing condition prior to Plaintiffs' use of the lane;
award monetary damages to Defendant for deprivation of use and enjoyment of Defendant's
property and interference with the same by Plaintiffs; award Defendant's court costs and
attorneys' fees, and such other and further relief as this Court deems just.
COUNTERCLAIM
37. The averments of fact contained in the Answers and New Matter to the Complaint are
hereby incorporated by reference and are made part of this Counterclaim.
38. Defendant has sustained a contamination of her water supply as a result of Plaintiffs'
logging activities that began on Defendant's portion of Cabin Lane on or about January
31, 2005.
39. Plaintiffs have intentionally entered and instructed others to enter onto Defendant's land
without permission by the Defendant on several occasions beginning on or about August
11, 2004.
40. As a result of Plaintiffs' unpermitted use of Defendant's portion of Cabin Lane, Plaintiffs
have trespassed onto the land of Defendant.
41. Asa result of Plaintiffs' logging activities, Plaintiffs have interfered with Defendant's
use and enjoyment of Cabin Lane.
42. Plaintiffs' logging activities have caused damage to Cabin Lane.
WHEREFORE, Defendant Kimberly M. Reed respectfully requests this Honorable Court
to enter judgment in her favor and against Plaintiffs in this matter and to issue a permanent
injunction enjoining the Plaintiffs from any and all logging activity by Plaintiffs on Cabin Lane;
order Plaintiffs to restore said lane to its existing condition prior to Plaintiffs' use of the lane;
award monetary damages to Defendant for deprivation of use and enjoyment of Defendant's
property and interference with the same by Plaintiffs; award Defendant's court costs and
attorneys' fees, and such other and further relief as this Court deems just.
Respectfully Submitted,
Salzmann Hughes PC
By: 01 C
James D. T ghes, Esquire
Supreme Court I.D. No. 58884
Kelly M. Dick, Esquire
Supreme Court I.D. No. 93167
95 Alexander Spring Road, Suite 3
Carlisle, PA. 17013
(717) 249-6333
Attorneys for Defendant,
Kimberly M. Reed
Date: February 11, 2005
VERIFICATION
The foregoing document is based upon information which has been gathered by my counsel
and myself in the preparation of this action. I have read the statements made in this document and
they are true and correct to the best of my knowledge, information and belief, I understand that
false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to
unsworn falsification to authorities.
KI RLY M. IiE
Date: February 11, 2005
CERTIFICATE OF SERVICE
I, Kelly M. Dick, Esquire, do hereby certify that I have served a true and correct copy of the
foregoing document upon the persons indicated below by facsimile and by first class United States
mail, postage paid in Carlisle, Pennsylvania, 17013, on the date set forth below:
H. Anthony Adams, Esquire
49 West Orange Street, Suite 3
Shippensburg, PA 17257
Attorney for Plaintiffs
Date: February 11, 2005 SALZMANN HUGHES PC
Kelly M. Di&, Esquire
Supreme Court ID# 93167
95 Alexander Spring Rd., Suite3
Carlisle, PA 17013
(717)-249-6333
Attorney for Defendant,
Kimberly M. Reed
?M1
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
James B. Small, Sr.
Barbara H. Small : No.04-6390 Civil Term
Plaintiffs
VS.
Kimberly M. Reed
Defendant
Civil Action - Law
PLAINTIFFS' ANSWER TO DEFENDANTS' NEW MATTER
23.
Admitted
24.
Denied the right of way accesses land used by Plaintiffs for recreational
purposes and occasional removal of wood ("logging") is not beyond the scope of the
activity contemplated.
25.
Denied
26.
Denied James B. Small, Sr. and Barbara H. Small by letter of counsel informed
Defendants that he has the right to the use of Cabin Lane.
27.
Admitted that James B. Small Senior was approached by Defendant.
28.
Admitted
29.
Denied, there is not other visible means of ingress or egress and Plaintiffs
further answer that since they have a valid right over Cabin Lane no other easement
needs to be used.
30.
Denied, the express easement is for passage over that lane known as Cabin
Lane.
31.
the Defendant "took her land" subject to all easement of record, apparent on
view or earned by prescriptive rights.
32.
Admitted that there is no express easement to the ground of Plaintiff.
33.
Denied, the land of the Defendant is residential dwelling land which may
border forest land but it is not enclosed woodland.
34.
No response is required to a statement of law.
35.
No response is required to a statement of law.
36.
Denied, the land that is now known as Cabin Lane had its origin as a logging
trail.
37.
No answer required.
38.
Denied, Plaintiffs are without sufficient knowledge or information to form a
belief as to the truth of the matter averred.
39.
Admitted
40.
Denied, Plaintiffs are not required to seek permission to use Cabin Lane and
no trespass has occurred since Plaintiffs have the right to use the lane.
41.
Denied, Plaintiffs are without knowledge or information sufficient to form a
belief as to the truth of the matter averred.
42.
Admitted, Plaintiffs intend to return Cabin Lane to a condition similar or
improved from the condition that existed prior to January 31, 2004.
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.
Date: DS <
''JA ES B. SMALL, JR.
Dater
BARBARA H. SMALL
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SHERIFF'S RETURN - REGULAR
CASE NO: 2004-06390 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SMALL JAMES B SR ET AL
VS
REED KIMBERLY M
SHANNON SHERTZER
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
REED KIMBERLY M
DEFENDANT
the
at 1554:00 HOURS, on the 27th day of December , 2004
at 221 WALNUTDALE ROAD
SHIPPENSBURG, PA 17257
RICK BARD, BOYFRIEND
was served upon
by handing to
ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 14.80
Affidavit .00
Surcharge 10.00
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Sworn and Subscribed to before
e-
me this /D day of
A.D.
So Answers:
R. Thomas Kline
12/28/2004
H ANTHONY ADAMS
By:
L, L %/- -
Deputy S?Taet iff
rothonotary
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PRMH0NJTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check ore) ( X ) for JURY trial at the next term of civil court.
( ) for trial without a jury.
-----------------------------------------
CAPTION OF CASE
(entire caption must be stated in full) (check one)
James B. Small, Jr. (X ) Civil Action - Law
Barbara H. Small ( ) Appeal from Arbitration
(Plaintiff)
VS.
Kimberly M. Reed
(Defendant)
VS.
(other)
The trial list will be called on
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 shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No. 2004
6390
Indicate the attorney who will try case for the party who files this praecipe:
H Anthony Adams
Indicate trial counsel for other parties if known: David H. Martineau
Salzmann Hughes P.C.
This case is ready for trial. Signed:
nn ( Print Name: 1=?' IcMAJa '
Date: ? 1_? Attorney for: k (J
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JAMES B. SMALL, SR.
BARBARA H. SMALL,
PLAINTIFF
V.
KIMBERLY M. REED,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6390 CIVIL TERM
PRE-TRIAL ORDER OF COURT
AND NOW, this 30`h day of August, 2006, a pre-trial conference was held
in the above captioned case and counsel having represented that settlement may be
reached in this case; IT IS HEREBY ORDERED AND DIRECTED that the case is
continued at the request of the parties and if a settlement is not made, a pre-trial
conference is set for October 2, 2006 at 10:00 a.m. in Courtroom No. 5 of the
Cumberland County Courthouse, Carlisle, Pennsylvania.
By the A Court,
th`?' -
M. L. Ebert, Jr., J.
X Anthony Adams, Esquire
Attorney for Plaintiff
,'avid Martineau, Esquire
Attorney for Defendant J
Court Administrator
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James B. Small, Jr. IN THE COURT OF COMMON PLEAS
Barbara H. Small OF CUMBERLAND COUNTY, PENNSYLVANIA
V.
Kimberly M. Reed NO. 04-6390 CIVIL TERM
ORDER OF COURT
AND NOW, August 30, 2006, by agreement of counsel, the above captioned case is continued from the
September 18, 2006 trial term. Counsel are requested to relist the case for trial at such time as they deem
appropriate.
By the Court,
Edgar B. Bayley, J.
?I. Anthony Adams, Esquire
/For the Plaintiff
S mane Hughes P.C.
avid H. Martineau, Esquire
For the Defendant .4
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Court Administrator
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3,312-433144
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JAMES B. SMALL, SR and BARBARA
H. SMALL,
Plaintiffs
VS. :
KIMBERLY M. REED,
Defendant
NO. 04-6390
CIVIL ACTION -LAW
DEFENDANT'S PETITION TO
ENFORCE SETTLEMENT
AND NOW, comes Defendant, by and through her counsel, Salzmann Hughes, P.C., and
files this Petition to Enforce Settlement and for attorney fees and costs as follows:
1. On December 21, 2004, Plaintiffs, James B. Small, Sr. and Barbara H. Small,
(hereinafter "Plaintiffs") filed a complaint seeking an easement by implied necessity, adverse use,
and/or express easement for the ingress and egress by a 12-foot wide road to and from Plaintiffs'
property and across Defendant Kimberly Reed's property (hereinafter "Defendant").
2. On February 11, 2005, Defendant filed an Answer and New Matter denying the
allegations.
3. Following a pre-trial conference and because of the pending settlement, on August
30, 20063, the case was stricken from the trial list by the Honorable Edgar Bayley. (See Order of
Judge Bayley attached hereto and incorporated herein as Exhibit "A.")
4. On or about September 27, 2006, Plaintiffs' counsel provided the proposed right-of-
way agreement to conclude the case. (See correspondence dated September 27, 2006 attached
hereto and incorporated herein as Exhibit "B.")
1
5. On October 5, 2006, Plaintiffs' counsel sent a second letter requesting an update on
the settlement agreement so that the matter could be concluded by the middle of October, 2006.
(See correspondence dated October 5, 2006 attached hereto and incorporated herein as Exhibit "C.")
6. On October 31, 2006, Defendant's counsel provided the revised right-of way
agreement and settlement agreement to Plaintiffs. (See correspondence dated October 31, 2006
attached hereto and incorporated herein as Exhibit "D.")
7. On December 4, 2006, Plaintiffs agreed to accept the right-of-way agreement with
one minor change. Plaintiffs requested the insertion of language which would permit the use of the
easement for limited future logging activities on Plaintiffs' property. (See correspondence dated
December 4, 2006 attached hereto and incorporated herein as Exhibit "E.")
8. Defendant accepted the minor change to the right-of-way agreement and permitted
the expansion of the easement.
9. On February 21, 2007, Plaintiffs indicated that they were not going to honor the
settlement agreement, but instead were going to relist this matter for trial since they now do not see
any reason for "giving a quarter." Plaintiffs' counsel requested that the revised right-of-way
agreement incorporating the logging language be forwarded to him. (See correspondence dated
February 21, 2007 attached hereto and incorporated herein as Exhibit "F.")
10. On March 2, 2007, the revised right-of-way agreement incorporating the agreed
logging terms as well as a thirty (30) day notification provision was sent to Plaintiffs' for their
signature. (See correspondence dated March 2, 2007 attached hereto and incorporated herein as
Exhibit "G.")
2
11. On or about March 30, 2007, Plaintiffs' counsel contacted Defendant's counsel and
indicated that his clients would no longer honor the settlement agreement even with the logging
language. Plaintiffs' counsel stated that he would attempt to get his clients to abide by the
settlement agreement.
12. On or about April 5, 2007, Defendant's counsel telephoned Plaintiffs' counsel
requesting an update on the signing of the settlement agreement and right-of-way.
13. On May 9, 2007, Defendant requested the signed settlement documents. (See
correspondence dated May 9, 2007 attached hereto and incorporated herein as Exhibit "H.")
Plaintiffs have not responded to this letter.
14. This Court has the inherent authority to enforce the terms of a settlement agreement.
Commonwealth of Pennsylvania, Department of Transportation v Limestone Products and Supply
Company, 456 A.2d 706 (Pa.Cmwlth. 1983).
15. Compromises may take the form of written agreements or oral settlements. An oral
settlement is recognized as a valid and enforceable contract. See, Sociedad Commercial Isadora v.
uizada, 641 A.2d 1193 (Pa.Super. 1993).
16. An oral settlement agreement is enforceable and legally binding without a writing.
Kazaniian v. New England Petroleum Corporation, 488 A.2d 1153 (Pa.Super. 1984). "Where
parties have reached an oral agreement, the fact that they intend to reduce the agreement to writing
does not prevent enforcement of the oral agreement." Ketchum v. Conneaut Lake Company, 163
A.2d 534 (Pa. 1933); Taylor v. Stanla Company of America, 158 A. 157 (1932).
17. It is well-settled law in Pennsylvania that where the parties in litigation have settled
upon the essential terms, and only formalization of the agreement need be accomplished, a valid and
3
enforceable contract has been formed. Melosonics v. Cropp, 342 F.2d 856 (3rd Cir. 1965); Field v.
Golden Triangle Broadcasting Corporation, 305 A.2d (Pa. 1973).
18. At this juncture, an enforceable contract has been created as the essential
terms of the agreement have been spelled out. No condition subsequent to the contract
existed and "a writing" was not a condition for the binding agreement. Main Line
Theaters v Paramount Film Distributing Corporation, 298 F.2d 801 (3rd Cir. 1962).
19. As stated in Gross v. Penn Mutual Life Insurance Company, 396 F.Supp. 373
(D.C.E.D. Pa. 1975):
It is obvious that the ... (party) had a change of heart between the
time he agreed to the terms of the settlement and when they were
reduced to writing ... here ... (the party) acted too late. The
bargain had already been struck on its terms.
20. In Pennsylvania, there is a strong judiciary policy in favor of voluntarily settling
lawsuits. Pennsylvania courts take this approach because settlements reduce the burden and
expenses associated with maintenance of the court and judicial systems. Rothman v. Fillette, 469
A.2d 543 (Pa. 1983).
21. Furthermore, this matter is now moot since Defendant is willing to provide an
easement for the ingress and egress to and from Plaintiffs' property as requested in the Complaint.
22. Plaintiffs have no legal right to continue to pursue their claims since Defendant has
provide any easement for the ingress and egress to and from Plaintiffs' property.
23. Plaintiffs' intentional refusal to sign the settlement agreement and right-of-
way agreement and now wanting to litigate this matter is an attempt to bully and inflict
additional and unnecessary financial hardship onto Defendant.
4
24. Defendant seeks finality in this case and enforcement of the settlement
agreement. This Court should treat with a jaundiced eye the Plaintiffs' reneging of the
settlement, which is creating a needless waste of time and financial hardship.
25. As a result of Plaintiffs' intentional refusal to execute the settlement agreement,
Defendant is entitled to costs and attorney fees.
WHEREFORE, Defendant respectfully requests this Honorable Court to enter an Order
enforcing the settlement and to award counsel fees and the costs of the preparation and presentation
of this Motion.
By
Dated-4 To- d 7--
Respectfully Submitted,
SALZMANN HUGHES, P.C.
E. Ralph (165dfrey, EsqK
Attorney I.D. No. 770
354 Alexander Spring Suite 1
Carlisle, PA 17013
(717) 249-6333
Attorneys for Defendant
5
Exhibit A
2
James B. Small, Jr.
Barbara H. Small
V.
Kimberly M. Reed
i
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04-6390 CIVIL TERM
ORDER OF COURT
AND NOW, August 30, 2006, by agreement of counsel, the above captioned case is continued from the
September 18, 2006 trial term. Counsel are requested to relist the case for trial at such time as they deem
appropriate.
By the Court,
Edgar B. Bayley, J.
H. Anthony Adams, Esquire
- For the Plaintiff
Salzmann Hughes P.C.
David H. Martineau, Esquire
For the Defendant
Court Administrator
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Exhibit B
LAW OF.Pzcn
H. ANTHONY ADAMq
40 V BOT ORANGE STRDNT. STTITJI 3
gtfi?pp?rt?IRTl?[t?, F.vNNts-rT.vAmA 27sr,.7
'].ETrFPHV .171715.14-'A'370
VAN (717) +72,0G73
September 27, 2006
E. Ralph Godfrey, Esquire
Salzmann Hughes, P.C.
95 Alexander Spring Road
Suite3
Carlisle, PA 17013
FAX#: 249-7334
Dear Sir:
Following is the proposed right-of-way agreement to conclude the case
between our clients. Hopefully we can avoid the pre-trial conference on Monday.
Please let me know of any alterations or changes.
Sincerely,
cz-
H. Anthony Adams
HAA: dmb
DECLARATION OF EASEMENT
WHEREAS, Kimberly M. Reed (Grantor) is the owner of a tract of
land located in Southampton Township,- Cumberland County, Pennsylvania by
virtue of a deed recorded in Deed Book Volume 264 at page 1975.
AND WHEREAS, James B. Small, Sr. and Barbara H. Small (Grantees),
husband and wife, are the owners of a tract of land which lies in Southampton
Township, Cumberland County, Pennsylvania by virtue of a deed (among others)
recorded in Deed Book "P" Volume 27 at page 394.
AND WHEREAS, it the desire of said Kimberly M. Reed to create and
establish a right of way for ingress, egress and regress over the land owned by
her by virtue of the deed recorded in Deed Book Volume 264 at page 1975 to
land owned by James B. Small, Sr. and Barbara H. Small by virtue of deed
recorded in Deed Book "P" Volume 27 page 394 which land has no direct access
to a public road.
NOW THEREFORE WITNESS: the undersigned Kimberly M. Reed,
intending to be legally bound, does hereby create, grant, convey and declare for
the benefit of James B. Small, Sr. and Barbara H. Small,. husband and wife, and
their respective heirs, guests and assigns (but as to this declaration for no other
party), an easement and right of way over lands described as Cabin Lane with a
cart path 15 feet In width. The said easement shall run in perpetuity with the
land, subject to the terms, conditions and covenants stated in this Declaration of
Easement.
(A) Purpose: To permit ingress, egress and regress for the above
mentioned parties hereto, and their respective heirs and assigns,
from Township Route T-323 to their property using the above
described private road or right of way. This does not include
commercial usage.
(B) The creation of the aforementioned easement and right of way shall
not be deemed to constitute a requirement to improve, alter, repair
or maintain said right of way nor constitute a charge or lien for the
costs thereof against any of the lands * described in the above-cited
deeds. All costs of improving, altering, repairing or maintaining the
easements or right of way shall be borne by those persons who shall
make such improvements, alterations, repairs or maintenance
without the right of reimbursement from the owner of the burdened
ground.
(C) No barriers, fences, curbs or other obstruction to the free and
unhampered use of said easement and right of way shall hereafter
be permitted, nor shall any automobiles, trucks, motor vehicles or
other personal property, nor any building or other structure,
hereafter be parked, stored. or constructed upon any part of said
easement or right of way;. however the owner of the burdened
property may to protect her property or any other further intrusion
or expansion of the cart path place a fence parallel to the cart path
if it does not obstruct or hamper the use of the right of way or limit
the now existing width thereof.
(D) The rights and privileges herein created shall extend not only to the
record owners of the land described in the aforementioned deeds,
but also in favor of their heirs and assigns, successors in interest,
and mortgages. Such rights and privileges may be granted either in
writing or by tacit consent. This however shall not extend the
usage, burden or right to develop and increase the burden on the
right of way.
(E) The use of the easements and right of way herein granted shall be
in common with all persons and entitles having lawful use thereof.
(F) The easements and right of way may be terminated and forever
extinguished or altered, modified or limited only by a writing in a
form sufficient to be. recorded, executed by the then record owners
of all of lands described in the aforementioned deeds, and also
executed by all mortgagees then holding mortgages of record but
such documents need not be joined in or consented to by any
tenants or other person or endty claiming rights in these easements
or rights of way, whose rights shall be extinguished, modified,
altered or limited upon the recording of such writing. Nothing
herein shall be construed to alter the rights and obligations set forth
in any prior right of way agreement between any of the parties
hereto.
(G) Nothing herein shall be construed to expand the current usage of
the right of way or the amount of persons using the right of way.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands
and seals this day of .2006.
Witness:
(SEAL)
Kimberly M. Reed
(SEAL)
]arses B. Small, Sr.
(SEAL)
Barbara H. Small
ACKNOWLEDGEMENT
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
:SS
On this ____ day of - 2006, before me, a notary public, the
undersigned officer, personally appeared, Kimberly M. Reed, 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 aforesaid.
Notary Public
My Commission Expires:
ACKNOWLEDGEMENT
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
:SS
On this day of ; 2006, before me, a notary public, the
undersigned officer, personally appeared, James B. Small, Sr. and Barbara H.
Small.. husband and 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 aforesaid.
Notary Public
My Commission Expires:
Exhibit C
LAW OFFICE
H. ANTHONY .ADAMS
49 WEST ORANGE STREET, SUITE 3
SHIPPENSBURG, PENNSYLVANIA 17257
TELEPHONE (717) 532-3270
FAX (717) 532-6673
October 5, 2006
E. Ralph Godrey, Esquire
Salzmann Hughes, P.C.
345 Alexander Spring Road
Suite 1
Carlisle, PA 17013
Dear Mr. Godfrey:
Just a follow up note to see where we are in the Small/Reed matter.
Hopefully we can conclude this matter by the middle of the month.
Sincerely,
H. Anthony Adams
HAA: dmb
Exhibit D
SALZMANN HUGHES., P.C. Attornevs & Counselors at Law
G. BRYAN SALZMANN, ESQ_
JAMES D. HUGHES, ESQ. 354 Alexander Spring Road • Suite I • Carlisle, PA 17015 • (717) 249-6333 • Fax: (717) 249-7334
ADAM R. SCHELLHASE, ESQ. 455 Phoenix Drive • Suite A • Chambersburg, PA 17201 • (717) 263-2121 • Fax: (717) 263-0663
JAY W. WALDMAN, ESQ. 3 Park Plaza • Wyomissing, PA 19610 • (610) 898-8500 - Fax: (610) 898-8050
DONALD E. LEFEVER, ESQ. 105 N. Front Street - Suite 401 • Harrisburg, PA 17101 • (717) 232-9420 - Fax: (717) 232-1970
ANN F. DEPAULIS, ESQ.
PATRICIA R. BROWN, ESQ. Paralegals
WILLIAM W. THOMPSON, ESQ.
MELISSA K. DIVELY, ESQ.
E. RALPH GODFREY, ESQ.
REBECCA R. HUGHES, ESQ.
SUSANN B. MORRISON, ESQ.
LAURA REBECCA ABLES, ESQ.-
DONNA L. GODFREY, ESQ.
DAVID H. MARTINEAU, ESQ.
SCOTT B. GRANGER, ESQ.
KURT E. WILLIAMS. ESQ.
SAMUEL E. WISER, JR., ESQ.
"Also Admitted to Georgia Bar
October 31, 2006
H. Anthony Adams, Esq.
49 West Orange St., Suite 3
Shippensburg, PA 17257
Re: Small, et al. v. Kimberly M. Reed
Cumberland County No. 04-6390
Dear Tony:
Please reply to:
CARLISLE OFFICE
PAMELA R. BOLLINGER
KAM S. CORNMAN
JACQUELINE L. DRAWBAUGH
STEPHANIE A. LINDSAY
EMILY C. MYERS
SHARLENE A. KOYSTE
KAREN E.SHUKER
RACHELSALVADOR
Enclosed please find the revised right-of-way agreement and settlement agreement. Please call me with any
questions. Once I have received your approval, I will have my client sign it.
Very truly yours,
SALZMANN HUGHES, P.C.
E. Ralph Go frey
ERG/ae
Enclosure
CONCENTRATING IN ENVIRONMENTAL, LAND USE, CORPORATE, REAL ESTATE, MUNICIPAL,
BANKING, SECURITIES, ESTATE PLANNING AND ADMINISTRATION LAW
Exhibit E
LAW OFFICE
H. ANTHONY ADAMS
49 WEST ORANGE STREET, SUITE 3
SHIPPENSBURG, PENNSYLVANIA 17257
TELEPHONE (717) 532-3270
FAX (717) 532.6673
December 4, 2006
E. Ralph Godfrey, Esquire
Salzman Hughes, P.C.
354 Alexander Spring Road
Suite 1
Carlisle, PA 17013
RE: Small vs Reed
Dear Mr. Godfrey:
After lengthy discussion and much cajouling I have convinced Mr. & Mrs.
Small to accept the right-of-way agreement with a minor change.
Mr. Small does not intend to do any logging on any of his property. He is
concerned however that he would be precluded from doing so or even taking
select hardwoods from his property forever. I realize this was your clients main
concern.
I suggest we agreement to allow limit future use for logging.
The third Whereas clause will read ------ but not limited to, any
commercial operation or use, for access for any future residential developments
or neighborhoods. As used herein the term commercial use shall not preclude
the future use of the road for the removal of timber not more frequently then
once every two years for a period not in excess of two months after which the
road shall be returned by Grantees their heirs or assigns to a condition equal to
or better than existing prior to the period of use.
Paragraph B would be modified to include the same language.
Sincerely,
H. Anthony Ad ms
HAA: dmb
Enclosure
Exhibit F
LAW OFFICE
H. ANTHONY ADAMS
49 WEST ORANGE STREET. SUITE 3
SHIPPENSBURG, PENNSYLVANIA 17257
TELEPHONE (717) 532-3270
FAX (717) 532-6673
February 21, 2007
E. Ralph Godfrey, Esquire
Salzman Hughes, P.C.
345 Alexander Spring Road
Suite 1
Carlisle,.Pa 17013
RE: Small vs Reed
Dear Mr. Godfrey:
I am writing to request that we resolve the Small vs Reed matter. My
client is aware that the other litigation in which I was involved resulted in a court
order for an easement without any qualifications. He now wants me to relist the
case since he sees no point in giving any quarter. I enclose a copy of that order.
Please forward the documents to me to resolve this case or let me know if
your client no longer desires to do so.
As you can see the order was signed by Judge Ebert so I must assume
Judge Ebert would issue a similar order in this case.
Sincerely,
H. Anthony Adams
HAA: dmb
Enclosure
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
0"370 CIVIL
-RDE - OF- £OMT
AND NOW, this 22ndday of January, 2007, after non jury triat in this case and
upon wnsideration of the briefs filed by the parties, and the Court having conducted a
View -of the property -in -question;
IT IS. HEREBY ORDER-EDAND DfRECTED 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 Ptpintiffs' property and across Defendants' property.
IT IS FURTHER {ORDERED AND DIRECTED that the Defendants -shall -re -move
aH. gates, posts, fences, -barriers, tar -other obstneticrns which-they- may have placed-
across the prescriptive easement commonly -referred to as -Cabin Lane.
By the Co urt,
M. L Ebert.. Jr_, J.
-H-. Anthony Adams, Esquire
Attorney for Plaintiffs
Sally J-. Winder, Esquire
Attomey for Defendants
Court Administrator
bas
TRUE COPY FROM R O u
in TeAamw whereof, I here un- Io set rry ham
wId the seed of said -at Carlisle, Pa.
Pnolthonomr?r
Exhibit G
SALzmANN HUGHES., P.C. _ Attorneys & Counselors at Law
G. BRYAN SALzMANN, ESQ.
JAMES D. HUGHES, ESQ. 354 Alexander Spring Road • Suite 1 • Carlisle, PA 17015 • (717) 249'6333 • Fax: (717) 249-7334
ADAM R. SCHELLHASE, ESQ. 455 Phoenix Drive • Suite A • Chambersburg, PA 17201 • (717) 263-2121 • Fax: (717) 263-0663
JAY W. WALDMAN, ESQ. 3 Park Plaza • Wyomissing, PA 19610 • (610) 898-8500 • Fax: (610) 898-8050
DONALD E. LEFEVER ESQ. 105 N. Front Street • Suite 401 • Harrisburg, PA 17101 • (717) 232-9420 • Fax: (717) 232-1970
ANN F. DEPAULIS, ESQ.
PATRICIA R. BROWN, ESQ. Paralegals
WILLIAM W. THOMPSON, ESQ.
MELISSA K DIVELY, ESQ.
E. RALPH GODFREY, ESQ.
REBECCA R. HUGHES, ESQ.
SUSANN B. MORRISON, ESQ.
LAURA REBECCA ABLES, ESQ.*
DONNA L. GODFREY, ESQ.
DAVID H. MARTINEAU, ESQ.
SCOTT B. GRANGER ESQ.
KURT E. WILLIAMS. ESQ.
SAMUEL E. WISER JR., ESQ.
*Also Admitted to Georgia Bar
March 2, 2007
H. Anthony Adams, Esq.
49 West Orange St., Suite 3
Shippensburg, PA 17257
Re: Small, et al. v. Kimberly M. Reed
Cumberland County No. 04-6390
Dear Tony:
Please reply to:
CARLISLE OFFICE
PAMELA R. BOLLINGER
KAM S. CORNMAN
JACQUELINE L. DRAWBAUGH
STEPHANIE A. LINDSAY
EMILY C. MYERS
SHARLENE A. KOYSTE
KAREN E. SHUKER
RACHELSALVADOR
Enclosed please find the executed right-of-way agreement and settlement agreement. Please have your clients sign
them and return the original settlement agreement to me along with a recorded copy of the right-of-way agreement.
The only change in the right-of-way agreement is the requirement that your client notify my client thirty (30) days
in advance that they intend on logging the property. Please call me with any questions.
Very truly yours,
SALZ HUGHES, P.C.
. Ra1p ey
ERG/ae
Enclosure
CONCENTRATING IN ENVIRONMENTAL, LAND USE, CORPORATE, REAL ESTATE, MUNICIPAL,
BANKING, SECURITIES, ESTATE PLANNING AND ADMINISTRATION LAW
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("Agreement") is made this day of
2007, by and among JAMES B. SMALL SR AND BARBARA H. SMALL,. husband
and wife, ("PLAINTIFFS") and KIMBERLY M. REED, ("DEFENDANT") collectively
referred to as "the Parties".
RECITALS
WHEREAS, DEFENDANT is the owner of a tract of land located in Southampton
Township, Cumberland County, Pennsylvania by virtue of a deed recorded in Deed Book
Volume 264 at page 1975.
WHEREAS, PLAINTIFFS are the owners of a tract of land which lies in
Southampton Township, Cumberland County, Pennsylvania by virtue of a deed (among
others) recorded in Deed Book "P" Volume 27 at page 394.
WHEREAS, PLAINTIFFS filed a Complaint in the Court of Common Pleas of
Cumberland County against DEFENDANT, docketed at 2004-6390 ("Litigation");
WHEREAS, PLAINTIFFS claim in their Complaint that they have a prescriptive
easement implied by necessity, adverse use or an express easement over DEFENDANT'S
land known as Cabin Lane which is approximately twelve (12) feet in width and
intersects with Walnut Dale Road providing ingress and egress to the PLAINTIFFS'
property;
WHEREAS, without admitting or denying the validity of the claims, cross claims
or defenses asserted by any of the Parties, the Parties desire to resolve all outstanding
issues and disputes among them.
NOW, THEREFORE, intending to be legally bound hereby, and for good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is
agreed as follows:
AGREEMENT
1. The Parties shall execute and provide a right-of-way agreement, a said
copy of the Right-of-Way Agreement is attached hereto and incorporated herein as
Exhibit "A".
Disposition of the Litigation
2. Upon receipt of this executed Settlement and Release Agreement,
PLAINTIFFS shall file a Praecipe discontinuing their lawsuit against DEFENDANT.
Release
3. PLAINTIFFS, on their behalf and on behalf of their heirs and assigns,
hereby fully releases and discharges DEFENDANT, her agents, servants, employees,
representatives, attorneys, insurers, sureties, guarantors, successors, heirs and assigns
from any and all rights, losses, damages, claims, actions or causes of action, whether in
contract or tort, law or equity, whether known or unknown, suspected or unsuspected,
which PLAINTIFFS ever had, now have, or ever will have against DEFENDANT related
to any thing, matter, issue, act, omission, condition or event from the beginning of time to
the date of this Agreement, including, but not limited to, the issues, claims, cross claims
and causes of action raised in the Litigation.
4. Nothing here in is intended to release any claims pertaining to the
enforcement of this Agreement.
2
Covenant Not to Sue
5. Except to enforce the rights granted herein, PLAINTIFFS, on their own
behalf and on behalf of their successors, heirs and assigns, agree not to sue
DEFENDANT or her heirs and assigns on any claim herein released.
No Admission
6. This Agreement is not, and shall not be construed to be, a direct or indirect
admission that any party acted wrongfully in any way. The Parties enter into this
Agreement for the sole purpose of avoiding the burden and expense of further litigation.
7. This Settlement and Release Agreement shall not be recorded in any
public place.
Representations and Indemnification
8. The Parties represent that they have authority to enter into this Agreement
and compromise the claims set forth in the Litigation without approval or consent from
anyone.
Miscellaneous
9. The headings in this Agreement are provided strictly for the convenience
of the Parties and shall not be deemed to alter, limit or add to the terms hereof.
10. This Agreement may be executed in counterparts, and that any copy.
hereof consisting of the numerous signature pages shall be deemed a full and valid copy
of the Agreement. For purposes of this Agreement, facsimile signatures may be utilized
and for all intents and purposes deemed an original.
11. No term or provision of this Agreement may be varied, changed, modified,
waived, discharged, or terminated orally, but only by an instrument in writing signed by
3
the Parties. The failure to assert rights in the event of any breach of any provision of this
Agreement shall not, in the absence of the requisite writing, constitute or operate as a
waiver as such time or at any future time such provision hereof.
12. This Agreement sets forth all of the promises, covenants, agreements,
conditions and understandings between the Parties hereto with respect to the subject
matter hereof, and supersedes any prior or contemporaneous agreements, understandings,
inducements or conditions, whether expressed or implied, oral or written, and no other
statements, inducements or representations, oral or written, have been relied upon by the
Parties.
13. This Agreement concerns transactions in Pennsylvania and has been
delivered in and shall be interpreted and governed in accordance with the laws of the
Commonwealth of Pennsylvania.
14. This Agreement shall inure to the benefit of and shall be binding upon the
Parties respective successors, heirs and assigns.
15. Except as otherwise provided herein, no third party is intended to secure
any rights or benefits under this Agreement or Right-of-Way for purposes of
commencing suit or any other proceeding, whether at law or equity, against
DEFENDANT herein.
16. The Parties agree to execute promptly any and all other documents that
may be necessary to effectuate the terms of this Agreement.
17. Should any provision of this Agreement be declared by any Court to be
illegal or invalid, the validity of the remaining parts, terms or provisions shall not be
4
affected thereby and such illegal or invalid part, term or provision shall be deemed not to
be a part of this Agreement.
18. The Recitals provided above are incorporated herein by reference thereto
and made part of this Agreement.
Advice of Counsel
19. The terms of this Agreement are contractual and not mere recitals. The
Parties acknowledge that they have been represented or have had the opportunity to be
represented by attorneys of their choosing in connection with this Settlement Agreement,
that they have read and understand the terms of this Agreement and that they are
voluntarily entering into this Agreement, having read it and discussed or having had the
opportunity to discuss it with their respective attorneys.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties
have executed this Agreement as of the date set forth in the opening paragraph of this
Agreement.
WITNESS:
JAMES B. SMALL, SR.
BARBARA H. SMALL
/Y1
??" amx/
? -
ERL` RE 9D
5
RIGHT-OF-WAY AGREEMENT
BETWEEN Kimberly M. Reed, of 221 Walnut Dale Road, Shippensburg, Cumberland
County, Pennsylvania, hereinafter called Grantor;
AND James B. Small, Sr. and Barbara H. Small, husband and wife, of 1007 Newburg
Road, Shippensburg, Cumberland County, Pennsylvania, hereinafter called Grantees.
NOW THIS AGREEMENT WITNESSETH THAT:
WHEREAS, Grantor is the owner of a tract of land located in Southampton Township,
Cumberland County, Pennsylvania by virtue of a deed recorded in Deed Book Volume 264 at page
1975.
WHEREAS, Grantees are the owners of a tract of land which lies in Southampton Township,
Cumberland County, Pennsylvania by virtue of a deed (among others) recorded in Deed Book "P"
Volume 27 at page 394.
WHEREAS, the parties have agreed that the Grantees, their heirs and assigns, shall have a
right-of-way, as described herein, for their residential access only to and from Grantees' property.
This right-of-way is strictly for the private residential use only of Grantees, and the private right-of-
way shall not be used for, permit or include the right to use the private right-of-way for any other
reason including, but not limited to, any commercial operation or use, for access for any future
residential developments, future homes, or neighborhoods. As used herein, the term commercial use
shall not preclude the future use of the road for the removal of timber not more frequently then once
every two years for a period not in excess of two months after which the road shall be returned by
Grantees their heirs or assigns to a condition equal to or better than existing prior to the period of use..
Grantees shall provide written notice thirty (30 days in advance of removing the lumber to the
Grantor, her heirs, successors and assigns.
IT IS NOW THEREFORE AGREED, in consideration of the sum of One and no/100 ($1.00)
Dollar and other good and valuable consideration, in hand paid by the Grantees to the Grantor, receipt
of which is hereby acknowledged, as follows:
1. The Grantor, for herself, her heirs and assigns, hereby grants and conveys to Grantees,
their heirs and assigns, the free and uninterrupted right-of-way, 12 feet in width, running along the
eastern boundary and side of the Grantor's Property described as Cabin Lane as more particularly
described and depicted by Exhibit "A," which is attached hereto and incorporated herein. The said
right-of-way shall run in perpetuity with the land, subject to the terms, conditions and covenants
stated in this Agreement:
(A) All of the foregoing recitals as stated above shall be deemed to be an integral
part of this Agreement as though the same were fully set forth below and are therefore incorporated by
this reference.
Purpose: To permit ingress, egress and regress for the above mentioned parties hereto, and their
respective heirs and assigns, from Township Route T-323 to their property using the above described
private road or right of way known Cabin Lan e. This right-of-way is strictly for the private use of
Grantees to access their property, and the right-of-way shall not be used for any other reason
including, but not limited to, any commercial operation or use or for access for any future residential
developments, future homes, or neighborhoods. As used herein the term commercial use shall not
preclude the future use of the road for the removal of timber not more frequently then once every two
years for a period not in excess of two months after which the road shall be returned by Grantees
their heirs or assigns to a condition equal to or better than existing prior to the period of use. The
residential access is for no more than one residence located on the Grantees' property, which the
Grantee now has on their property or which they may erect on their property in the future and shall
run with the land. If the Grantees decide to erect more than one residence, to use their property for
commercial uses, or to develop the Property or surrounding property in any other way, then this
right-of-way will cease to exist unless and until the parties, or their heirs and assigns, enter into a new
right-of-way agreement.
(B) The 12 foot width of said right-of-way shall remain the same and not be changed
or altered without the written consent of the Grantor, her heirs, assigns, and successors in title.
(C) The Grantor, her heirs and assigns, shall not interfere or otherwise prevent the
Grantees from the uses and purposes permitted by this agreement (for example no barriers, fences,
plantings, curbs, nor any building or other structure); however, nothing herein shall prevent the
Grantor from any uses of said land which do not interfere or contravene the purposes and intentions
of this agreement including, but not limited to, Grantor protecting her property from further intrusion
or expansion of the cart path by placing a fence or other structure parallel to the right-of-way.
(D) The creation of the aforementioned right of way shall not be deemed to
constitute a requirement to improve, alter, repair or maintain said right of way nor constitute a charge
or lien for the costs thereof against any of the lands' described in the above-cited deeds. Grantor shall
have no obligation to alter, maintain, repair, or reimburse any party including Grantees for any costs or
expenses necessary to alter, maintain, repair or repair the right-of-way. The Grantees, their heirs and
assigns, agree to be solely responsible for the maintenance, repair and upkeep of the right-of-way.
(E) The easements and right of way may be terminated and forever extinguished
or altered, modified or limited only by a writing in a form sufficient to be recorded, executed by the
then record owners of all of lands described in the aforementioned deeds.
(F) Nothing herein shall be construed to expand the current usage of the right of way or the
amount of persons using the right of way.
J;0_
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals this
day of , 2007.
COMMONWEALTH OF PENNSYLVANIA :
COUNTY OF CUMBERLAND
:SS
i
i
Kimberl . Reed
James B. Small, Sr.
Barbara H. Small
On this ) ST day of Md4-4? 2007, before me the undersigned officer, personally
appeared Kimberly M. Reed, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that he/she executed the same for the
purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and seal.
Notary public r COMMON&ALTH OF PENNSYLVANIA
Notarial Seal
COMMONWEALTH OF PENNSYLVANIA : Kandy L Coyle. Notary Public
SS FSouth Midcledon TwP.. 0XIbmiand two tY
COUN'T'Y OF CUMBERLAND Ccrrx ron
Member, Pennsylvania Assodation of Notaries
On this day of 2007, before me the undersigned officer, personally
appeared James B. Small, Sr. and Barbara H. Small, husband and wife, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within instrument, and
acknowledged that he/she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and seal.
(SEAL)
Notary Public
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Exhibit H
SALZmANN HUGHES, P.C. Attorneys & Counselors at Law
G. BRYAN SALZMANN, ESQ.
JAMES D. HUGHES, ESQ.
ADAM R. SCHELLHASE, ESQ.
JAY W. WALDMAN, ESQ.
CHARLES E. ZALESKI, ESQ.
DONALD E. LEFEVER, ESQ.
ANN F. DEPAULIS, ESQ.
PATRICIA R. BROWN, ESQ.
WILLIAM W. THOMPSON, ESQ.
MELISSA K DIVELY, ESQ.
E. RALPH GODFREY, ESQ.
REBECCA R. HUGHES, ESQ.
SUSANN B. MORRISON, ESQ.
LAURA REBECCA ABLES, ESQ.*
DONNA L. GODFREY, ESQ.
DAVID H. MARTINEAU, ESQ.
SCOTT B. GRANGER ESQ.
KURT E. WILLIAMS, ESQ..
SAMUEL E. WISER, JR., ESQ.
*Also Admitted to Georgia Bar
May 9, 2007
H. Anthony Adams, Esq.
49 West Orange St., Suite 3
Shippensburg, PA 17257
354 Alexander Spring Road • Suite 1 • Carlisle, PA 17015 • (717) 249-6333 • Fax: (717) 249-7334
455 Phoenix Drive • Suite A • Chambersburg, PA 17201 • (717) 263-2121 Fax: (717) 263-0663
3 Park Plaza • Wyomissing, PA 1%10 • (610) 898-8500 • Fax: (610) 898-8650
105 N. Front Street • Suite 401 • Harrisburg, PA 17101 • (717) 232-9420 • Fax: (717)232-1970
Paralegals
PAMELA R. BOLLINGER .
KAM S. CORNMAN
JACQUELINE L. DRAWBAUGH
STEPHANIE A. LINDSAY
EMILY C. MYERS
Please reply to: SHARLENE A. KOYSTE
CARLISLE OFFICE KAREN E. SHUKER
RACHEL SALVADOR
rgodfrey®salzmannhughes.com
Re: Small, et al. v. Kimberly M. Reed
Cumberland County No. 04-6390
Dear Tony:
It has been several weeks since I forwarded the settlement agreement for your clients' signature. Please advise if
your clients have signed the settlement agreement. It is my intention to file a motion to enforce the settlement should
your clients refuse to execute it. In addition, I will also seek attorney fees against your client for intentionally
refusing to execute the settlement documents. I remain hopeful that your client will honor our agreement. I look
forward to hearing from you.
cc: client
CONCENTRATING IN ENVIRONMENTAL, LAND USE, CORPORATE, REAL ESTATE, MUNICIPAL,
BANKING, SECURITIES, ESTATE PLANNING AND ADMINISTRATION LAW
CERTIFICATE OF SERVICE
AND NOW, this -?- day of June, 2007, I, E. Ralph Godfrey, Esquire, of Salzmann
Hughes, P.C., attorneys for Defendant, hereby certify that I served a copy of the within Petition
this day by depositing the same in the United States mail, postage prepaid, at Carlisle
Pennsylvania, addressed to:
H. Anthony Adams, Esq.
49 West Orange St., Suite 3
Shippensburg, PA 17257
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JAMES B. SMALL, SR. AND IN THE COURT OF COMMON PLEAS OF
BARBARA H. SMALL, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
KIMBERLY M. REED,
DEFENDANT 04-6390 CIVIL TERM
ORDER OF COURT
AND NOW, this t\ day of June, 2007, IT IS ORDERED that a
hearing shall be conducted on the within petition to enforce a settlement agreement in
Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 1:30
p.m., Thursday, July 19, 2007.
By the Cou
Edgar B. Ba
H. Anthony Adams, Esquire
For Plaintiffs
E. Ralph Godfrey, Esquire
For Defendant
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JAMES B. SMALL, SR. and BARBARA
H. SMALL,
Plaintiffs
VS.
KIMBERLY M. REED,
Defendant
NO. 04-6390
CIVIL ACTION -LAW
ORDER
AND NOW, this day of , 2007, the hearing on the petition to
enforce settlement currently scheduled for Thursday, July 19, 2007 at 1:30 p.m. is hereby
continued until Wednesday, July 25, 2007 at 1:30 p.m. The hearing shall be held in Courtroom
Number 2, Cumberland County Courthouse, Carlisle.
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JAMES B. SMALL, SR. AND
BARBARA H. SMALL,
PLAINTIFFS
V.
KIMBERLY M. REED,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6390 CIVIL TERM
IN RE: MOTION OF DEFENDANT TO ENFORCEMENT SETTLEMENT
BEFORE BAYLEY, J.
AND NOW, this
ORDER OF COURT
42A --- day of August, 2007, the motion of defendant to
enforce a right-of-way agreement and settlement agreement, IS DENIED.
By the Curt,
Edgar B. Bayley, J.
H. Anthony Adams, Esquire
For Plaintiffs
E. Ralph Godfrey, Esquire
For Defendant
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JAMES B. SMALL, SR. AND
BARBARA H. SMALL,
PLAINTIFFS
V.
KIMBERLY M. REED,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-6390 CIVIL TERM
IN RE: MOTION OF DEFENDANT TO ENFORCEMENT SETTLEMENT
BEFORE BAYLEY, J.
OPINION AND ORDER OF COURT
Bayley, J., August 2, 2007:--
Plaintiffs, James B. Small, Sr. and Barbara H. Small filed a complaint seeking to
establish a right-of-way to their land over a twelve foot wide dirt road on the land of
defendant, Kimberly M. Reed.' The case was listed for trial but removed following a
pre-trial conference when attorneys H. Anthony Adams, Esquire, representing the
Smalls, and E. Ralph Godfrey, Esquire, representing Reed, reached a general
agreement to settle the case.
The attorneys then started negotiating the specific terms of a right-of-way
agreement. On September 27, 2006, Adams sent Godfrey a proposed right-of-way
agreement that did not impose any restrictions on its use by the Smalls. On October
31, Godfrey sent Adams a revised right-of-way agreement and settlement agreement
which did contain some restrictions. On December 4, Adams responded:
After lengthy discussion and much cajouling [sic] I have
convinced Mr. & Mrs. Small to accept the right-of-way agreement
with a minor change.
Mr. Small does not intend to do any logging on any of his property.
' Count I sought relief by an easement implied by necessity, Count II by adverse
possession, and Count III by an express easement.
04-6390 CIVIL TERM
He is concerned however that he would be precluded from doing so or
even taking select hardwoods from his property forever. I realize this was
our clients [sic] main concern.
I suggest we agreement [sic] to allow limited future use for logging.
The third Whereas clause will read ------ but not limited to, any
commercial operation or use, for access for any future residential
developments or neighborhoods. As used herein the term commercial
use shall not preclude the future use of the road for the removal of timber
not more frequently then [sic] once every two years for a period not in
excess of two months after which the road shall be returned by Grantees
their heirs or assigns to a condition equal to or better than existing prior to
the period of use.
Paragraph B would be modified to include the same language.
(Emphasis added.)
On February 21, 2007, Adams wrote Godfrey that "[m]y client is aware that the
other litigation in which I was involved resulted in a court order for an easement without
any qualifications. He now wants me to relist the case since he sees no point in giving
any quarter." On March 2, Godfrey sent Adams a right-of-way agreement and
settlement agreement that was executed by his client on March 1. The right-of-way
agreement granted and conveyed to the Smalls and their heirs and assigns a right-of-
way on Reed's property, twelve feet in width, and contained the following provision:
WHEREAS, the parties have agreed that the Grantees, their heirs and
assigns, shall have a right-of-way, as described herein, for their residential
access only to and from Grantees' property. This right-of-way is strictly for
the private residential use only of Grantees, and the private right-of-way
shall not be used for, permit or include the right to use the private right-of-
way for any other reason including, but not limited to, any commercial
operation or use, for access for any future residential developments,
future homes, or neighborhoods. As used herein, the term commercial
use shall not preclude the future use of the road for the removal of timber
not more frequently then [sic] once every two years for a period not in
excess of two months after which the road shall be returned by Grantees
their heirs or assigns to a condition equal to or better than existing prior to
the period of use. Grantees shall provide written notice thirty (30 [sic]
-2-
04-6390 CIVIL TERM
days in advance of removing the lumber to the Grantor, her heirs,
successors and assigns. (Emphasis added.)
Godfrey stated in an accompanying letter to Adams that "the only change in the
right-of-way agreement is the requirement that your client notify my client thirty (30)
days in advance that they intend on logging the property." On March 26, 2007, Adams
wrote to Godfrey:
My clients would not agree with the restrictions on using their land
in the future. It is their intent to give the land either during their lifetimes or
by will or intestacy to their two children. My clients have no intent to place
any more dwellings on any of their lots (7 total) but want their children to
have the option of using the land for a cabin or residence in the future.
Both children are in their 40's or 50's so it is unlikely that they will use it in
this manner. Also, the new land development laws would probably restrict
the use of the land with only a 12-foot right of way to access the same.
In trying to find something palatable to both parties, I suggest we
remove homes and define residential developments and neighborhoods
as the placement of more than one building on any single lot owned by
the Plaintiffs or the further subdivision or division by land development
plan or any parcel owned by the Plaintiffs. Please let me know.
When the Smalls did not execute the right-of-way and settlement agreement that
had been signed by Reed and forwarded to Adams on March 2, 2007, Reed filed a
petition for enforcement and attorney fees. A hearing was conducted on July 25, 2007.
James Small testified and maintains that he never gave Adams authority to enter
into any agreement and, further, that the right-of-way agreement that Reed seeks to
enforce has additions to the proposal set forth by Adams in his December 4, 2006,
letter to Godfrey. Reed maintains that the right-of-way agreement she signed conforms
to the Adams' proposal of December 4 with the minor change that requires the Smalls
to provide Reed written notice 30 days in advance of removing any lumber from their
-3-
04-6390 CIVIL TERM
property. Thus, Reed argues that there is an enforceable agreement.
Actually, there are two changes in the right-of-way agreement signed by Reed
that were not part of the suggestions in Adams' letter of December 4, 2006, to Godfrey.
One change is the 30 days advance notice requirement for the Smalls to give Reed
prior to removing any lumber from their land. The other is that Adams' proposal to not
allow the right-of-way to be used "for any future residential developments or
neighborhoods" on the Smalls' land was changed by Godfrey to further restrict its use
for any "future homes" on the Smalls' land. A future home or several homes is
something different from a future residential development or future neighborhood,
otherwise Godfrey would not have added it to Adams' proposal. James Small testified
that he is not willing to have to give notice to Reed of any intention to remove any
lumber from his land, and, although he does not plan to build a home on his land, he
does not want to restrict the right-of-way so that it would prevent his heirs or any future
owner from doing so.
In Pennsylvania an attorney may only bind a client to the terms of a settlement
agreement based on express authority. Reutzel v. Douglas, 870 A.2d 787 (Pa. 2005).
We find that James Small never gave Adams express authority to bind him to the right-
of-way agreement that Godfrey sent to Adams on March 2, 2007, and which Reed
seeks to enforce. According, the following order is entered.
ORDER OF COURT
AND NOW, this day of August, 2007, the motion of defendant to
enforce a right-of-way agreement and settlement agreement, IS DENIED.
-4-
04-6390 CIVIL TERM
By the
Edgar-B. Bayley, J.
H. Anthony Adams, Esquire
For Plaintiffs
E. Ralph Godfrey, Esquire
For Defendant
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JAMES B. SMALL, SR. and BARBARA
H. SMALL,
Plaintiffs
VS.
KIMBERLY M. REED,
Defendant
NO. 04-6390
CIVIL ACTION -LAW
PRAECIPE TO WITHDRAW APPEARANCE
TO THE PROTHONOTARY:
Please withdraw E. RALPH GODFREY, Esquire of SALZMANN HUGHES, P.C. as
counsel of record for Kimberly M. Reed in the above-referenced matter.
SALZMANN HUGHES, P.C.
E. Ralph 14frey, Esquire
Attorney ID# 77052
354 Alexander Spring Road
Suite 1
Carlisle, PA 17015
Dated: Z /S /p
CERTIFICATE OF SERVICE
I, E. Ralph Godfrey, Esquire, hereby certify that I served a copy of the foregoing Praecipe
to Withdraw and Praecipe to Enter Appearance upon all parties to this action, by mailing a copy
thereof on this day of February 2008, to:
H. Anthony Adams, Esq.
49 West Orange St., Suite 3
Shippensburg, PA 17257
SALZMANN HUGHES, P.C.
By
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JAMES B. SMALL, SR. and BARBARA
H. SMALL,
Plaintiffs
VS.
KIMBERLY M. REED,
Defendant
NO. 04-6390
CIVIL ACTION -LAW
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY:
Please enter the appearance of SCOTT B. GRANGER, Esquire of SALZMANN
HUGHES, P.C. as counsel of record for Kimberly M. Reed in the above-referenced matter.
SALZMANN HUGHES, P.C.
i
g(rfott B. Gr ger, qu
Attorney # 63b41
354 Alex der Spring Road
Suite 1
Carlisle, PA 17015
Dated: 62/ AIr
CERTIFICATE OF SERVICE
I, E. Ralph Godfrey, Esquire, hereby certify that I served a copy of the foregoing Praecipe
to Withdraw and Praecipe to Enter Appearance upon all parties to this action, by mailing a copy
thereof on this r` day of February 2008, to:
col
H. Anthony Adams, Esq.
49 West Orange St., Suite 3
Shippensburg, PA 17257
SALZMANN HUGHES, P.C.
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PENNSYLVANIA
DC' VY?S`I?
Statement of Intention to Proceed
To the Court:
?,_- -? ti intends to proceed with the above captioned matter
Print Name ' Sign Name ,mac
Date: Ai Ci oZ? r Attorney for No"-\
Explanatory Comment
The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of
inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit
comment.
1. Rule of civil Procedure
New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the
scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously
governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is
tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting
local rules.
This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d
1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required
before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901."
Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The
general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable.
II Inactive Cases
The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the
court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties.
If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of
course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she
will file a notice of intention to proceed and the action shall continue.
a. Where the action has been terminated
If the action is terminated when a party believes that it should not have been terminated, that party may proceed
under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination
of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file
the notice of intention to proceed.
The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of
the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and
reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff
must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or
legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of
termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2).
B. Where the action has not been terminated
An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may
have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a
common law non pros which exits independently of termination under Rule 230.2.
Buell
Trothonotag
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Solicitor
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ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE — THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH
P4RLCP.23(lZ.
BYTHE COURT,
DAVID D. BUELL
One Courthouse Square 0 Suite100 Carlisle, TA 0 (Phone 717 240-6195 0 Ecvc717 240-6573