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HomeMy WebLinkAbout13-5391 Supreme Court f !ennsylvania Court#offCcimmo$ Pleas For Prothonotary Use Only: Civ>Cl Cover-She.,et Docket No: Cuy �i1�Nt County A? '". .39 f The infbrmation collected on this form is used solely for court administration purposes. This form sloes not si pplement or replace the filing and service of pleadings or other papers as required by lcnv or rules of court. Co Smencernent of Action: Complaint ® Writ of Summons Petition S Transfer from Another Jurisdiction Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: ' tySc1� T CArro C"dc� 1E I ZG 646A e►s 0� ( tcicm M Bnew Dollar Amount Requested: E]within arbitration limits I Are money damages requested? D Yes El No (check one) ®outside arbitration limits O N Is this a Class Action Stet? 0 Yes Vr No Is this an MDJAppeal? El Yes 1�'No A Name of Plaintiff/Appellant's Attorney: 6' of L Ra�►^�� k 0 Check Mere;f you have no attorney(are a Self-Represented [Pro See Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT(do not include alrloss Tort) CONTRACT(do not include Judgments) CIVIL APPEALS F� Intentional © Buyer Plaintiff Administrative Agencies F1 Malicious Prosecution © Debt Collection:Credit Card n Board of Assessment n Motor Vehicle 0 Debt Collection:Other Q Board of Elections Nuisance F7 Dept.of Transportation Q Premises Liability F1 Statutory Appeal:Other S_ 0 Product Liability (does not include mass tart) F] Employment Dispute: JLJ Discrimination Slander/Libel/Defamation C' Other: E] Employment Dispute: Other © Zoning Board T— rl Other: 1 n Other: O MASS TORT Asbestos N ® Tobacco Toxic Tort-DES ® Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS © Toxic Waste F1 Ejectment 0 Common Law/Statutory Arbitration B Q Other: M Eminent Domain/Condemnation Declaratory Judgment © Ground Rent ] Mandamus F1 Landlord/Tenant Dispute Non-Domestic Relations Q Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY n Mortgage Foreclosure: Commercial Q Quo Warranto n Dental n Partition Replevin n Legal M Quiet Title 5/ ►Ul�oe PI�J`5�� (A 0 Medical n Other: F1 Other Professional: Updated 1/1/2011 CARROLL TRACEY and : IN THE COURT OF.COMMON PLEAS OF ELIZABETH MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION—LAW/EQUITY CD V. c r WILLIAM M. BREEN and NO.: • SUSAN E. BREEN, his wife, Defendants • =C:) CD • . 7 :X r a rig NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty(20) days after this complaint and notice are served,by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORAMTION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. . Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 (800) 990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the Court. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. CO i7 y � agsr 1 CARROLL TRACEY and : IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION—LAW/EQUITY V. WILLIAM M. BREEN and NO.: —CIVIL TERM SUSAN E. BREEN, his wife, Defendants COMPLAINT AND NOW, comes, Carroll Tracey and Elizabeth Myers, by and through their counsel, Karl E. Rominger, Esquire, and in support of their request, state as follows: 1. Carroll Tracey is an adult individuals residing at 104 Glendale Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050 2. Elizabeth Myers is an adult individual residing at 117 Glendale Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. William M. Breen and Susan E. Breen are adult individuals, husband and wife, residing at 107 Glendale Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 4. This case concerns access to the parcels both 104 and 117 Glenndale Drive, of which the Plaintiffs hold deeds in. 5. Recently a letter was received from Defendant's attorney indicating a wall will be built. (See attached) 6. This wall will be placed on the exact edge of Defendant's property line, and as marked out by Defendant and/or his agents will block access to the parcel at 106, and land lock the parcel at 117. 7. Attached photographs show the extent of the proposed incursion. 8. The access to be blocked is the sole access to both 104 and 117. 9. All of the parcels including that of Defendant were at one time in a unity of interest. 10. A permit was obtained to build said wall from the township,but the permit does not address nor consider the private land rights complained of herein. 11. The Court needs to enjoin construction, and enjoin future blocking of this passage. 12. Further there was historical drainage on Defendant's side of the roadway which needs to be maintained. EASEMENT BY PRESCRIPTION AND/OR OWNERSHIP BY ADVERSE POSSESSION 13. The owners of both parcels have used the driveway/roadway now in use continuously for access to both parcels for well more than 21 years, in fact since 1923 by the current owners, and this sole way in was believed to have been used since the 1800's. 14. Plaintiffs have had actual possession and use of the said road way for over twenty-one (2 1) years during which time they maintained and improved the laneand utilized it for ingress and egress. See, Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949). I [In a claim for adverse possession,] [a] claimant must prove actual, exclusive,visible,notorious, distinct and hostile possession of the land continuously for 21 years. Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949). 15. Plaintiffs have had exclusive possession of the said lane for over twenty-one (2 1) years during which time only Plaintiffs, their family, and invitees ever went onto or used the lane and during which time Defendants have never used or come onto the lane from the time they moved into their residence except as a trespasser or guest of Plaintiff. Id. See also,Brennan v. Manchester Crossings, 708 A.2d 815, 1998 Pa. Super. LEXIS 136 (Pa. Super. Ct. 1998) See also Flannery v Stump, 786 A.2d. 255, 258 (Pa. Super. 200 1) 2 16. At all times, Plaintiffs' use and possession of the said lane, for over twenty-one (21) years, was open and visible and able to be seen by anyone in the area including, Defendants. See, Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949). 17. At all times, Plaintiffs' use and possession of the said lane, for over twenty-one (21) years, was notorious and known to neighbors, family and friends anyone in the area including Defendants.Id. 18. Plaintiffs' use and possession of the said lane, for over twenty-one (21) years, was distinct in that it was exclusive and separate from any use by Defendant, or previous owners, who, in fact, made no use of the said tract of land for the entire time they lived in the residence. Id. 19. Plaintiffs' use and possession of the said tract of land, for over thirty-four(34) years, was hostile in that it was exclusive and against Defendant's possession and interest in the said tract of land. Id. 2 Landowner showed adverse possession of land (or a prescriptive easement)pursuant to 42 Pa. Cons. Stat. § 5530(a)(1)where the land was held for 21 years and all elements of adverse possession were present except hostility, which was inferred; the owner was required to act affirmatively to interrupt the adverse possessor's use of the property and that the simple act of surveying the property was not sufficient to break the continuity of the adverse owner's possession.Brennan v. Manchester Crossings, 708 A.2d 81.5, 1998 Pa. Super. LEXIS 136 (Pa. Super. Ct. 1998), 20. Plaintiffs have a clear right to the requested relief based upon the I facts above, and the irrefutable harm they are suffering because of Defendant is destroying the lane in dispute. 21. After so many years of continuous use, this has become an easement for the benefit of the parcels of plaintiffs. 22. Under the doctrine of easement by proscription this right of use and easement for benefit of plaintiff's parcels cannot be block, and the proposed wall threatens to do so. 23. Further given the use of the land, and the nature and quality of the continuous use,title of the roadway should be awarded to Plaintiffs. 24. Further a Court previously granted and recognized this historical right of way. Wherefore Plaintiffs request an Easement be recognized in their favor, and Defendants be enjoined from blocking said access to their respective parcels by any means. EASEMENT BY ESTOPPEL 25. For decades the plaintiffs have used the current road way to access their parcels. 26. Fundamental fairness requires this Court to now allow the continued use, as Plaintiffs have relied on this access and invested in their homes and businesses based upon this historical access. 27. Defendants should not now be allowed to block this access given they acquiesced for so many years to the use of this access. 28. The proposed wall is an unfair encroachment and leaves no adequate means of ingress nor egress. Wherefore Plaintiffs request an Easement be recognized in their favor, and Defendants be enjoined from blocking said access to their respective parcels by any means. EASEMENT BY NECESSITY .29. The law recognizes that an easement by necessity is a right of last resort for a land locked parcel. Both parcels will essentially have no access do to topography. 3Q. Further, the parcel at 117 will be truly landlocked if this Court does not find an easement by use and/or adverse possession does not exist. 31. Equity and fairness require this landlocked parcel be given access to the public road. 32. Thus if this Court finds no easement nor adverse possession nor other basis, an easement by necessity should be granted. 33. An easement on the existing roadway will do the least harm to lands of Defendant. Wherefore Plaintiffs request an Easement be recognized in their favor, and Defendants be enjoined from blocking said access to their respective parcels by any means. PRIVATE ROAD ACT CLAIM UNDER Act 169 of 1836 34. If no other relief is granted, and the wall is to be built, Parcel 117 is to be land locked. 35. The Private Road Act is hereby invoked. 36. A Board of View is requested to determine the best place and location for a private road from the lands of Plaintiff across the lands of Defendant. 37. The private road will serve both the parties and the public interest. 38..The current roadway is the most practical, however, to meet current township codes, Plaintiff would request a 25 foot right of way across the lands of Defendants. Wherefore Plaintiffs request a Board of View be convened to create a private road in their favor across the lands of Defendant. Respectfully Submitted, Rominger& Associates Date: - Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants CARROLL TRACEY and : IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs , CIVIL ACTION—LAW/EQUITY V. WILLIAM M. BREEN and NO.: —CIVIL TERM SUSAN E. BREEN, his wife, , Defendants , CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a courtesy copy of the within Complaint upon the following by depositing the same in the United States Mail, first class, postage prepaid, addressed as follows: Lee C. Swartz, Esquire TUCKER ARENSBURG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108 Respectfully Submitted, Rominger& Associates Date: Karl E. Rominger, Esquire. 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants al ig ge °y SCMNED TUCKER ARENSBERG Lee C.Swartz lswartz@tuckerlaw.com Attorneys Certified as a Civil Trial Advocate by the National Board of Trial Advocacy,A Pennsylvania Supreme Court Approved Agency _ � August 15, 2013 .� _.. Via First Class Mail LS J�,kC3' a Karl E. Rominger, Esquire Rominger &Associates 155 South Hanover Street Carlisle, PA 17013 Re: Breen v. Tracey Our File No.: 020903 - 136772 AMENDED Dear Mr. Rominger: I wish to advise you that Mr. Breen has obtained a permit from Silver Spring Township to build a fence on his boundary with Mrs. Tracey. He will refrain from doing so for a period of thirty (30) days to give her adequate opportunity to widen her driveway in order that she can continue to have access to her home and that of her parents. At the end of the thirty (30) days the work will begin on the common boundary, as determined by Hartman's survey, and approved by Judge Masland. I am writing this letter to you and I am not sending a copy to Mrs. Tracey at this time since you are her counsel. If you no longer represent her, please advise me and I will send a letter directly to her. However, I would appreciate your sending her a copy of the letter even though you may not represent her, since the thirty (30) days will begin to run two days after the date of this letter. In addition, Mr. Breen advises me that the fence between his and the Myers' property which the Court found to be encroaching on the Breen property for hundreds of feet has deteriorated to the point that it is in need of repair and thus, should be removed to the property line of both parties as ordered by the Court. Very truly yours, TUCKER ARENSBERG, P.C. `'-'' Lee C. Swartz LCS/sed H BGDB:137868-1 020903-136772 Tucker Arensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 p.717.234.4121 f.717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p.412.566.1212 f.412.594.5619 CARROLL TRACEY and : IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION—LAW/EQUITY V. WILLIAM M. BREEN and NO.: 13_x/ —CIVI�TE$M (, SUSAN E. BREEN, his wife, ( �C Defendants cn r— --- V )>C-) 71-CD 4 r n a REQUEST FOR AN INJUNCTION AND NOW, comes, Carroll Tracey and Elizabeth Myers, by and through their counsel, Karl E. Rominger, Esquire, and in support of their request, state as follows: 1. Carroll Tracey is an adult individuals residing at 104 Glendale Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050 2. Elizabeth Myers is an adult individual residing at 117 Glendale Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. William M. Breen and Susan E. Breen are adult individuals, husband and wife, residing at 107 Glendale Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 4. This case concerns access to the parcels both 104 and 117 Glenndale Drive, of which the Plaintiffs hold deeds in. 5. Recently a letter was received from Defendant's attorney indicating a wall will be built. (See attached) 6. This wall will be placed on the exact edge of Defendant's property line, and as marked out by Defendant and/or his agents will block access to the parcel at 106, and land lock the parcel at 117. 7. Attached photographs show the extent of the proposed incursion. 8. The access to be blocked is the sole access to both 104 and 117. 9. All of the parcels including that of Defendant were at one time in a unity of interest. 10. A permit was obtained to build said wall from the township, but the permit does not address nor consider the private land rights complained of herein. 11. The Court needs to enjoin construction, and enjoin future blocking of this passage. 12. Further there was historical drainage on Defendant's side of the roadway which needs to be maintained. EASEMENT BY PRESCRIPTION AND/OR OWNERSHIP BY ADVERSE POSSESSION FOR WHICH RELIEF IS CLEAR 13. The owners of both parcels have used the driveway/roadway now in use continuously for access to both parcels for well more than 21 years, in fact since 1923 by the current owners, and this sole way in was believed to have been used since the 1800's. 14. Plaintiffs have had actual possession and use of the said road way for over twenty-one (2 1) years during which time they maintained and improved the laneand utilized it for ingress and egress. See, Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949).' ' [In a claim for adverse possession,] [a] claimant must prove actual, exclusive, visible,notorious, distinct and hostile possession of the land continuously for 21 years. Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949). 15. Plaintiffs have had exclusive possession of the said lane for over twenty-one (21) years during which time only Plaintiffs, their family, and invitees ever went onto or used the lane and during which time Defendants have never used or come onto the lane from the time they moved into their residence except as a trespasser or guest of Plaintiff. Id. See also,Brennan v. Manchester Crossings, 708 A.2d 815, 1998 Pa. Super. LEXIS 136 (Pa. Super. Ct. 1998) See also Flannery v Stump, 786 A.2d. 255, 258 (Pa. Super. 2001) 2 16. At all times, Plaintiffs' use and possession of the said lane, for over twenty-.one (2 1) years, was open and visible and able to be seen by anyone in the area including, Defendants. See, Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949). 17. At all times, Plaintiffs' use and possession of the said lane, for over twenty-one (21) years, was notorious and known to neighbors, family and friends anyone in the area including Defendants. Id. 18. Plaintiffs' use and possession of the said lane, for over twenty-one (21) years, was distinct in that it was exclusive and separate from any use by Defendant, or previous owners, who, in fact, made no use of the said tract of land for the entire time they lived in the residence. Id. 19. Plaintiffs' use and possession of the said tract of land, for over thirty-four(34) years, was hostile in that it was exclusive and against Defendant's possession and interest in the said tract of land. Id. z Landowner showed adverse possession of land (or a prescriptive easement)pursuant to 42 Pa. Cons. Stat. § 5530(a)(1)where the land was held for 21 years and all elements of adverse possession were present except hostility, which was inferred; the owner was required to act affirmatively to interrupt the adverse possessor's use of the property and that the simple act of surveying the property was not sufficient to break the continuity of the adverse owner's possession.Brennan v. Manchester Crossings, 708 A.2d 815, 1998 Pa. Super. LEXIS 136 (Pa. Super. Ct. 1998), 20. Plaintiffs have a clear right to the requested relief based upon the facts above, and the irrefutable harm they are suffering because of Defendant is destroying the lane in dispute. 21. Plaintiff Myers is a woman of distinguished age, and will have no access to her home for emergency vehicles if the wall is built. 22. After so many years of continuous use, this has become an easement for the benefit of the parcels of plaintiffs. 23. Under the doctrine of easement by proscription this right of use and easement for benefit of plaintiff's parcels cannot be block, and the proposed wall threatens to do so. 24. An extreme Hardship will be worked on Plaintiffs if construction begins before this matter is settled. 25. Minimal burden or prejudice will accrue to Defendants, if any. 26. Maintaining the status quo pending full litigation is sensible, and will be maintained by such an injunction 27. For decades the plaintiffs have used the current road way to access their parcels. 28. Fundamental fairness requires this Court to now allow the continued use, as Plaintiffs have relied on this access and invested in their homes and businesses based upon this historical access. 29. Again the proposed wall is an unfair encroachment and leaves no adequate means of ingress nor egress. 30. All the grounds raised in the underlying complaint, and the paragraphs therein are incorporated by reference as if fully set out herein. Wherefore Plaintiffs request an Injunction to prevent the wall from being built and/or to prevent the lane from being blocked pending full litigation. from blocking said access to their respective parcels by any means. Respectfully Submitted, Rominger& Associates Date: _0/R- ;arl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants CARROLL TRACEY and : IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION—LAW/EQUITY V. WILLIAM M. BREEN and NO.: —CIVIL TERM SUSAN E. BREEN, his wife, Defendants CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Injunction upon the following by depositing the same in the United States Mail, first class, postage prepaid, addressed as follows: Lee C. Swartz, Esquire TUCKER ARENSBURG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108 Respectfully Submitted, Rominger& Associates Date: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants - �y rte,. ti1� •,r.�i o'�t'�►j !��� 'fr..kt .�•�� .w,y, `}�. �, .y ��rx x. •� �st' w. ,�s,+y'irt,�j����.' ''�'� .4T•_`'-3`. ..P •arm ��,.,, e * ' 3 {�,r ry,^.r.'�•1� . VV "•Y '7 ' f A { A�rNdl t. �Y{r7.�Y �.r.'/.....+wJ...r.•.+„r.��.i...'y....r.�l.n.�..�..f�..M....� .. 1 191'• ,,}y�.�»fq-�a�` h�r t� � i �,' __d. ��.r"'- ��' . 1H . ♦t E t K-- y„��.,.�. tt . 1�1i{ .4(,�k�'�61 �j °J !v�r.u* µ`yy`Vn 1 _pis:.' � � �.. '�` }. .�.•4.�' t'„ *7k`— At f . ^ � �T 7� SCANNED TucKEIZ ARE �SBERG Lee C.Swartz A t t o r n e y s Iswartz @tuckerlaw.com Certified as a Civil Trial Advocate by the National Board of Trial Advocacy,A Pennsylvania Supreme Court Approved Agency August 15, 2013 0 rte; Via First Class Mail LS Karl E. Rominger, Esquire Rominger& Associates 155 South Hanover Street Carlisle, PA 17013 Re: Breen v. Tracey Our File No.: 020903 - 136772 AMENDED Dear Mr. Rominger: I wish to advise you that Mr. Breen has obtained a permit from Silver Spring Township to build a fence on his boundary with Mrs. Tracey. He will refrain from doing so for a period of thirty (30) days to give her adequate opportunity to widen her driveway in order that she can continue to have access to her home and that of her parents. At the end of the thirty (30) days the work will begin on the common boundary, as determined by Hartman's survey, and approved by Judge Masland. I am writing this letter to you and I am not sending a copy to Mrs. Tracey at this time since you are her counsel. If you no longer represent her, please advise me and I will send a letter directly to her. However, I would appreciate your sending her a copy of the letter even though you may not represent her, since the thirty (30) days will begin to run two days after the date of this letter. In addition, Mr. Breen advises me that the fence between his and the Myers' property which the Court found to be encroaching on the Breen property for hundreds of feet has deteriorated to the point that it is in need of repair and thus, should be removed to the property line of both parties as ordered by the Court. Very truly yours, TUCKER ARENSBERG, P.C. Lee C. Swartz LCS/sed H BGDB:137868-1 020903-136772 Tucker Arensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne,PA 17043 p.717.234.4121 f.717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p.412.566.1212 f.412.594.5619 CARROLL TRACEY and IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. WILLIAM M. BREEN and SUSAN E. BREEN, his wife, DEFENDANTS 13-5391 CIVIL TERM ORDER OF COURT AND NOW, this day of September, 2013, following consideration of Plaintiffs Request for an Injunction, a hearing is scheduled for the 25th day of September, 2013, in Courtroom Number 1, Cumberland County Courthouse at 9:00 a.m. By the Court, Albert H. Masland, J. ZLee C. Swartz, Esquire For Plaintiffs ZKarl E. Rominger, Esquire For Defendants sal Co I Es Lc, c < � N �r r CARROLL TRACEY and IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. WILLIAM M. BREEN and SUSAN E. BREEN, his wife, DEFENDANTS 13-5391 CIVIL TERM ORDER OF COURT F ` AND NOW, this day of September, 2013, upon agreement of counsel, the hearing currently scheduled for September 25, 2013, is continued until Monday, November 25, 2013, at 1:00 p.m. in Courtroom Number 1, Cumberland County Courthouse. By the Court, Albert H. Masla , J. Xee C. Swartz, Esquire For Plaintiffs ZKarl E. Rominger, Esquire For Defendants F—S irca ILL Q �3 r CARROLL TRACEY and : IN THE COURT OF COMMON PLEAS ELIZABETH MYERS , : CUMBERLAND COUNTY, PA Plaintiffs • : CIVIL ACTION - LAW v. : NO. 13-5391 CIVIL TERM ( - WILLIAM M. BREEN and : .;- IA� ^� �, .—cf SUSAN E. BREEN, his wife, • c s Defendants • (fl•�r2 . 'P.,. g?© T7_.. NOTICE TO PLEAD r=. TO: CARROLL TRACEY and ELIZABETH MYERS do Karl E. Rominger, Esq. Rominger &Associates 155 South Hanover Street Carlisle, PA 17013 You are hereby notified to file a written response to the attached Answer and New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. TUCKER ARENSBERG P.C. By: Le C. Swartz I.D. No. 07258 2 Lemoyne Drive, Suite 200 Lemoyne, Pa 17043 Telephone: 717/221-7969 Facsimile: 717/232-6802 Attorney for Defendants Dated: October 10 , 2013 CARROLL TRACEY and : IN THE COURT OF COMMON PLEAS ELIZABETH MYERS , : CUMBERLAND COUNTY, PA Plaintiffs : CIVIL ACTION - LAW v. • NO. 13-5391 CIVIL TERM WILLIAM M. BREEN and • SUSAN E. BREEN, his wife, • Defendants DEFENDANTS' ANSWER TO PLAINTIFFS' COMPLAINT Defendants, William M. Breen and Susan E. Breen, his wife, by and through their counsel, Lee C. Swartz, Esquire and Tucker Arensberg, P.C., respond as follows to Plaintiffs' Complaint: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. On the contrary, it is averred that the Plaintiffs have adequate access to their property without encroaching on the property of the Defendants. 7. Denied. On the contrary, it is averred that there is no "incursion" to photograph inasmuch as the Defendants propose to erect a fence on their own property. 8. Denied. On the contrary, it is averred that the Plaintiffs have two means of access to their property, i.e., through the lawful boundary along the Breens property as determined by Judge Masland in a previous action to Quiet Title as well as from Claremont Drive extended. 9. After reasonable investigation Defendants are without knowledge as to the truth of the averment contained herein and, if relevant, proof thereof is demanded. 10. Denied. On the contrary, the permit does consider the private land rights as set forth by the Order of Judge Masland. 11. Denied. On the contrary, it is averred that no passage will be brought since the Plaintiffs property is bounded by the Defendants property provides adequate access to the property of the Plaintiffs. 12. After reasonable investigation Defendants are without knowledge as to the truth of the averment contained herein and, if relevant, proof thereof is demanded. EASEMENT BY PRESCRIPTION AND/OR OWNERSHIP BY ADVERSE POSSESSION 13. Denied. On the contrary it is averred that the Plaintiffs have not used the Plaintiffs property as set forth in Judge Masland's Order for an uninterrupted period of 21 years. 14. Denied. On the contrary it is averred that the Plaintiffs have not had possession of the Defendants property for over 21 years. By way of further answer, the portion of the land which the Plaintiffs seek to call their own is that of the Defendants and was fenced in preventing any access by the Plaintiffs for many years during which the Plaintiffs claim they had access and actual possession. 15. Denied. On the contrary it is averred that the Plaintiffs property was fenced and utilized for a portion of the last 21 years. 16. Denied. Inasmuch as the Plaintiffs did not use or possess the Defendants land for over 21 years. 17. Denied. For the reasons set forth in answer to paragraph 16 hereof. 18. Denied. For the reasons set forth in answer to paragraph 16 hereof. 19. Denied. For the reasons set forth in answer to paragraph 16 hereof. 20. Denied. On the contrary, it is averred that the Defendants have not destroyed the lane in dispute. On the contrary, it is averred that the lane remains with the exception of its previous encroachment upon the Defendants property which was not open and notorious for a period of 21 years and it was the Plaintiffs who destroyed the Defendants property by laying down macadam on a portion of it for less than 21 years. 21. Denied. For the reason that there has been no easement favoring the Plaintiffs who did not openly and notoriously traverse the area of the Defendants land for which they seek the easement. 22. Denied. For the reason that an easement by prescription has to be open and notorious for 21 years in favor of the Plaintiffs which as indicated above has not occurred. 23. Denied as being unduly vague and incapable of an answer. Defendants are unaware of the definition of"nature and quality of the continuous use". By way of further answer, Defendants continue to aver that there has been no use by the Plaintiffs which rises to the legal definition of adverse possession or easement by prescription. 24. After reasonable investigation, Plaintiff is without knowledge sufficient to form a belief as to the truth of this paragraph and if relevant proof thereof is demanded. EASEMENT BY ESTOPPEL 25. Denied. On the contrary, it is averred that the Plaintiffs have not used the road, openly and notoriously, for 21 years. 26. Denied. The Plaintiffs have not used the Defendants land for a period of 21 years. By way of further answer, it is averred that the Plaintiffs still have adequate access to their property based without the need to use the Defendants property. 27. Defendant deny that they ever acquiesced in any usage by the Plaintiffs which would rise to the legal definition of adverse possession or easement by prescription. 28. Denied. On the contrary it is averred that the Plaintiffs have ingress and egress to their property without using the Defendants land. By way of further answer it is averred that the Defendants have narrowed their egress by planting shrubbery and making physical alterations to their land which if not engaged in would give them more than adequate access and which by methods of removing some trees and shrubbery would provide more than adequate access to their property. EASEMENT BY NECESSITY 29. This paragraph sets forth an conclusion of law to which no response is required. The allegation that both parcels will essentially have no access do to topography is denied since there are two methods of access to the Plaintiffs property. 30. Denied. For the reasons set forth in paragraph 29 hereof. 31. Denied. Inasmuch as the Plaintiffs have adequate access to their property which is not landlocked. 32. Denied because the Plaintiffs have two methods of accessing their property as set forth above. 33. Denied for the reasons set forth in 32 hereof. PRIVATE ROAD ACT CLAIM UNDER ACT 169 of 1836 34. Denied for the reason that the Plaintiffs have two means of access to their property. 35. This paragraph sets forth a conclusion of law which requires no answer. 36. Denied. There is no need for a Board of View inasmuch as Judge Masland's holding in the Defendant's action to Quiet Title as well as testimony by the relevant parties as to boundaries and access will establish that the Plaintiffs have two means of access to their property. By way of further answer, it is averred that there is no legal procedure for having a Board of View appointed under these circumstances. 37. Denied. After reasonable investigation Plaintiffs are without knowledge sufficient to form a belief as to the truth of the averments set herein or the definition of"private road" and its boundaries with respect to the issues involved. By way of further answer, it is averred that without using the Defendants property, the Plaintiffs will have "private" access to their property by two separate roads. 38. Defendants admit that the Plaintiffs are requesting to obtain 25 feet of the Defendants' property without any legal basis for doing so. WHEREFORE, the Defendants request that the Complaint of the Plaintiffs be dismissed with prejudice and counsel fees to the Defendants be awarded for vexatious litigation. NEW MATTER 39. Plaintiffs claims are barred by the Doctrine of Res Judicata and Collateral Estoppel. In litigation ensuing for over a period of 2 years with respect to the right to ownership and use of the property which is the subject of the Plaintiffs Complaint, Judge Masland, in his final Order of October 12, 2011, (marked as Exhibit A attached) found as a matter of law that "Defendants are forever barred from asserting any right, lien, title or interest in the land inconsistent with this legal description" (See legal description prepared by Hartman & Associates, Inc. upon which the Court relied). 40. The Plaintiffs have waived any claim with respect to adverse possession or easement by prescription inasmuch as the issues with respect to the Plaintiffs right to use the land in question were fully litigated in the previous action brought by the Breens to 095838 Civil Term. At no time during the proceedings of that litigation did the Plaintiffs raise the issue of adverse possession or easement by predescription, both of which would have been relevant to the claims of the parties. Plaintiffs are therefore barred by the Doctrines of Res Judicata and Collateral Estoppel, Laches, and the rule of the case. 41. The Plaintiffs have waived the defenses of adverse possession and easement by prescription preferring to assert them in the previous litigation as required under Pennsylvania Rule of Civil Procedure 1032. Respectfully submitted, Tuckers Arensberg, P.C. Lee . Swartz, E quire ` Supreme Court ID: 07258 2 Lemoyne Drive, Suite 200 Lemoyne, Pa 17043 (717) 221-7969 Dated: Iswartz(cftuckerlaw.corn 1 ,,t�� WILLIAM M. BREEN AND : IN THE COURT OF COMMON PLEAS OF . ��"" ^ SUSAN E. BREEN, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. • CARROL TRACEY, ELIZABETH MYERS AND BARRY SHOFF, • DEFENDANTS : 09-5838 CIVIL TERM FINAL ORDER OF COURT L. AND NOW, this /O2 day of October, 2011, following a bench trial and after consideration of post-trial motions filed by both parties, IT IS ORDERED AND DIRECTED as follows: 1. Plaintiffs' post-trial motions are DENIED. 2. Defendants' post-trial motions are DENIED in all aspects except for the removal of the fence as addressed in paragraph 5. 3. Plaintiffs' claims for conspiracy, false arrest, malicious use and abuse of process are DENIED. 4. Plaintiffs' nuisance claims are DENIED and a verdict is entered in favor of Defendants. 5. Plaintiffs' claim for trespass is GRANTED and, Defendants are directed to remove those sections of their fence that encroach upon Plaintiffs' property, as set forth in the attached survey, when repairs or replacement become necessary. Similarly, when improvements or repairs are made to the macadam access road, which also encroaches on the Plaintiffs' EXHIBIT I __A_ 09-5838 CIVIL TERM property, as determined by the attached legal description, Defendants shall ensure that any encroaching macadam is removed. 6. Plaintiffs' action to quiet title is GRANTED. The legal description attached hereto which was prepared by Hartman and Associates, Inc., is declared to be the valid description. Defendants are forever barred from asserting any right, lien, title or interest in the land inconsistent with this legal description. Furthermore, any plan or survey prepared for the Defendants that is inconsistent with the attached legal description is declared to be invalid. 7. No further relief is granted to either party. By the Court, Albert H. Masland, J. Lee C. Swartz, Esquire For Plaintiffs Karl E. Rominger, Esquire For Defendants •▪saa -2- VERIFICATION William M. Breen, hereby verifies that he is a party in the foregoing action, that the facts set forth in the within document are true and correct to the best of his knowledge, information and belief, and further states that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. William M. Breen Dated: (::% t l 2013 VERIFICATION Susan E. Breen, hereby verifies that he is a party in the foregoing action, that the facts set forth in the within document are true and correct to the best of his knowledge, information and belief, and further states that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. 6-lThLo6:‘,Ne.) Susan E. Breen Dated: td-ciits tr ID , 2013 CERTIFICATE OF SERVICE And now, this /Q7 day sa,/-0- -(.Y , 2013, I, Sue-Ellen Danielsen, Legal Secretary, to Lee C. Swartz, Esquire, for the law firm of Tucker Arensberg, P.C., attorneys for the within Defendants hereby certify that I have this day served the foregoing Defendants Answer to Plaintiffs Complaint and New Matter by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Karl E. Rominger, Esq. Rominger &Associates 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Attorneys for Plaintiffs Sue-Ellen Danielsen HBGDB:139103-1 020903-112967 4 CARROLL TRACEY and : IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION—LAW/EQUITY V. WILLIAM M. BREEN and NO.: 1.3-5391 —CIVIL TEEM SUSAN E. BREEN,his wife, _0:3� "' j Defendants cn c-, ANSWER TO NEW MATTER '" ,, AND NOW, comes, Carroll Tracey and Elizabeth Myers, by and through their counsel, Karl E. Rominger, Esquire, and in response to the new matter, state as follows: 39. Is a legal conclusion and requires no answer. By way of further answer it is denied. The previous litigation is not a bar. 40. Is a legal conclusion and requires no answer. By way of further answer it is denied. The previous litigation is not a bar. 41. Is a legal conclusion and requires no answer. By way of further answer it is denied. The previous litigation is not a bar. Wherefore Plaintiffs request relief in their favor. Respectfully Submitted, Rominger& Associates Date: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 CARROLL TRACEY and : IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION—LAW/EQUITY V. WILLIAM M. BREEN and NO.: 13-5391 —CIVIL TERM SUSAN E. BREEN, his wife, Defendants CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a courtesy copy of the within Complaint upon the following by depositing the same in the United States Mail, first class, postage prepaid, addressed as follows: Lee C. Swartz, Esquire TUCKER ARENSBURG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108 Respectfully Submitted, Rominger & Associates Date: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendants CARROLL TRACEY and IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. WILLIAM M. BREEN and SUSAN E. BREEN, his wife, DEFENDANTS 13-5391 CIVIL TERM ORDER OF COURT AND NOW, this 25th day of November, 2013, the hearing scheduled on Plaintiff's request for injunction is continued. Defendants are DIRECTED to file a dispositive motion within twenty (20) days of the date of this order. Following receipt of the motion the court will set a briefing schedule and a time for argument and/or hearing thereon. By the Court, Albert H. Masland, J. ./Cee C. Swartz, Esquire For Plaintiffs /Karl E. Rominger, Esquire For Defendants :sal %e5 ,��� //°�G�-3 r+-'r CD =:;o -,C= --JIr7l �G(� -<> Tucker Arensberg, P.C. BY: Lee C. Swartz I.D. NO: 07258 ATTORNEYS FOR DEFENDANTS 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 221-7969 Facsimile: (717) 232-6802 lswartz@tuckerlaw.com CARROLL TRACEY and IN THE COURT OF COMMON PLEAS ELIZABETH MYERS , CUMBERLAND COUNTY, PA Plaintiffs CIVIL ACTION - LAW V. c-� NO. 13-5391 CIVIL TERM .V --+ WILLIAM M. BREEN and zr rM SUSAN E. BREEN, his wife, C-) �fD Cat Defendants MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS WILLIAM M. BREEN AND SUSAN E. BREEN, HIS WIFE -< c* AND NOW comes William M. Breen and Susan E. Breen, by and through their counsel Lee C. Swartz, Esquire and Tucker Arensberg, P.C., who files this Motion for Summary Judgment pursuant to Pa.R.C.P. 1035.2 and 1036 (a)(2) by respectfully stating the following: 1. This motion has been filed pursuant to an agreement between the parties resulting in an Order by Judge Masland that he would decide a dispositive motion. 2. Prior to the existing litigation, the Defendants in this litigation brought an action against the Plaintiffs in the form of an action to quiet title in order to determine the boundaries between their respective parcels of land. 3. During the prior litigation, the Plaintiffs Tracey and Myers contended that they were holders of legal title to a disputed area of approximately 7 feet to which the Defendant Breens claimed legal title. 4. By Order of October 12, 2011, Judge Masland granted the Breens action to quiet title holding that "Defendants are forever barred from asserting any right, lien, title or interest in the land inconsistent with this legal description." (A survey prepared by the Breens surveyors, Hartman & Associates, Inc.). See paragraph 8 of this Order attached hereto. 5. The Plaintiffs Tracey and Myers now have brought a request for an injunction to prevent the Breens from establishing a fence on the parties common boundary as established by Judge Masland's Order. 6. The contention of the Plaintiffs are that they have an easement by prescription or ownership by adverse possession. An easement by estoppel or by necessity or under the Private Road Act of a 25 foot right of way across the lands of the Defendants. 7. All Plaintiffs claims for relief should be dismissed as a matter of law for the following reasons: a. All the claims are barred by the Doctrine of Res Judicata and Collateral Estoppel. b. The Plaintiffs have waived any claim with respect to adverse possession or easement by prescription inasmuch as the issues with respect to the Plaintiff's right to use the land in question were fully litigated in the previous action brought by the Breens and at no time did the Plaintiffs Tracey and Myers raise the issues of adverse possession or easement by prescription nor can they prove that they possessed or used the land for 21 years. C. Under the previous litigation, the Plaintiffs Tracey and Myers claimed legal title not title by adverse possession or prescription. 8. The Plaintiffs Tracey and Myers should not be awarded an easement by necessity since they will be unable to demonstrate strict necessity inasmuch as they own adjoining land upon which they could build a road inexpensively which would exit their property on to a main road, Clermont Drive, for which they have a right of way. 9. Along the boundary which is the subject of this feud, the Plaintiffs Tracey and Myers have always had adequate access of at least 7 feet in width and, at one time, wider access which they impeded by planting shrubbery and making physical alterations to their land 2 creating what hardship might exist thus waiving and defeating any claim for easement by necessity or claim under the Private Road Act for the reasons set forth in this paragraph. 10. Consequently, the Plaintiffs claims are all barred for reasons set forth herein and the Complaint should be dismissed. WHEREFORE, William M. Breen and Susan E. Breen respectfully request this Honorable Court to grant their Motion for Summary Judgment as to all counts and alleged claims set forth in their Complaint. TUCKER ARENSBERG, P.C. By: ck C. Swartz Pa. Bar I.D. No. 07258 2 Lemoyne Drive, Suite 200 Lemoyne, PA 17043 Telephone: (717) 221-7969 Facsimile: (717) 232-6802 Email: Iswartz a.tuckerlaw.com Attorneys for Defendants 3 1� WILLIAM M. BREEN AND : IN THE COURT OF COMMON PLEAS OF SUSAN E. BREEN, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : V. CARROL TRACEY, ELIZABETH MYERS AND BARRY SHOFF, DEFENDANTS 09-5838 CIVIL TERM FINAL ORDER OF COURT AND NOW,this � � day of October, 2011, following a bench trial and after consideration of post-trial motions filed by both parties, IT IS ORDERED AND DIRECTED as follows: 1. Plaintiffs' post-trial motions are DENIED. 2. Defendants' post-trial motions are DENIED in all aspects except for the removal of the fence as addressed in paragraph 5. 3. Plaintiffs' claims for conspiracy, false arrest, malicious use and abuse of process are DENIED. 4. Plaintiffs' nuisance claims are DENIED and a verdict is entered in favor of Defendants. 5. Plaintiffs' claim for trespass is GRANTED and, Defendants are directed to remove those sections of their fence that encroach upon Plaintiffs' property, as set forth in the attached survey,when repairs or replacement become necessary. Similarly, when improvements or repairs are made to the macadam access road, which also encroaches on the Plaintiffs' EXHIBIT 09-5838 CIVIL TERM property, as determined by the attached legal description, Defendants shall ensure that any encroaching macadam is removed. 6. Plaintiffs' action to quiet title is GRANTED. The legal description attached hereto which was prepared by Hartman and Associates, Inc., is declared to be the valid description. Defendants are forever barred from asserting any right, lien, title or interest in the land inconsistent with this legal description. Furthermore, any plan or survey prepared for the Defendants that is inconsistent with the attached legal description is declared to be invalid. 7. No further relief is granted to either party. By the Court, Albert H. Masland, J. Lee C. Swartz, Esquire For Plaintiffs Karl E. Rominger, Esquire For Defendants :saa -2- CERTIFICATE OF SERVICE And now, this /41 day Jz e or , 2013, I, Sue-Ellen Danielsen, Legal Secretary, to Lee C. Swartz, Esquire, for the law firm of Tucker Arensberg, P.C., attorneys for the within Defendants hereby certify that I have this day served the foregoing Motion for Summary Judgment by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Karl E. Rominger, Esq. Rominger &Associates 155 South Hanover Street Carlisle, PA 17013 Sue-Ellen Danielsen 5 CARROLL TRACEY and : IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. • • WILLIAM M. BREEN and • SUSAN E. BREEN, his wife, • DEFENDANTS : 13-5391 CIVIL TERM ORDER OF COURT ! AND NOW, this r� day of December, 2013, upon consideration of Defendants' Motion for Summary Judgment, and pursuant to the court's conference with counsel, the Defendants, as moving party, shall file a brief directly with the court on or before January 10, 2014 and Plaintiffs shall file a reply brief on or before January 17, 2014. The court will hear argument at 11:00 a.m. on January 22, 2014, in Courtroom Number 1. By the Court, Albert H. Masland, J. a/tee C. Swartz, Esquire For Plaintiffs ✓Karl E. Rominger, Esquire ,?># For Defendants :sal <12 cp A n yy rw J ;: .yam tt7 Oo pti 40 OA CARROLL TRACEY and : IN THE COURT OF COMMON PLEAS OF ELIZABETH MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CIVIL ACTION—LAW/EQUITY V. WILLIAM M. BREEN and NO.: 13-5391 —CIVIL TERM SUSAN E. BREEN, his wife, • Defendants ANSWER& BRIEF IN OPPOSITION TO DEFENDANTS E"r- "-' MOTION FOR SUMMARY JUDGMENT ANSWER __.a 1. Admitted. 2. Admitted a prior litigation piece was filed. By way of further answer as to quieting title, it asked for in the wherefore clause; 6. Enter an order determining that the title to the property of the Breens shall be in accordance with the survey prepared on January 30, 1978. 7. Compelling Carrol Tracey to cancel, surrender or satisfy of record the plan filed in the Cumberland County Courthouse on March 28, 2008, and to admit the invalidity of said plan with respect to the common boundary between the Breen and Tracey properties. 8. Bar the Defendant Tracey from asserting any right, title or interest in the Plaintiffs'land inconsistent with interest or claim of the Plaintiffs' as set forth in their survey. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied. The claims are not denied by Collateral Estoppel nor Res Judicata, nor was there waiver or a lack of 21 years (factual question). Nor was the defense used in the prior suit one to prevent Plaintiff's from advancing here. 8. The availability of other lands or suitability of other routes is a factual issue not for summary judgment. 9. See 8. 10. Denied. BRIEF The issues raised by Defendant are several, but the issues raised as to other suitable ingress or egress in Paragraph 8 & 9 are factual questions, and will require a record be developed. Plaintiff would simply point out the suitability and other routes is something that they have plead do not exist. As for Collateral Estoppel and Res Judicata, Defendant is wrong as to the effect of the prior suit. As it applies to Easement by Necessity, and the Private Road Act, it is the boundary the Court created in that action which has given birth to these claims. Prior to the Court's Order in the previous suit, these claims did not exist and therefore could not have been subject to that litigation. Only after, "winning" does either become cognizable to the Plaintiffs in this action. It is important to remember one is a statutory taking, and the other is an equitable relief to cure a hardship, neither is a claim of right or interest in the other's title per se,but a request to have the same. As for the greater claim of Collateral Estoppel and Res Judicata as to the Adverse Possession Claim and the Easement by Proscription, the Survey which was found to be valid acknowledged the roadway's existence. As such it did not extinguish those claims involving it. In fact, the Court in Paragraph 5 & 6 of its Order in the previous Suit (and cited by Defendant) make it clear that the road way is not extinguished,but that as it is repaired or maintained that encroaching macadam not be replaced, use of the road way was not restrained or ruled upon, reading these two paragraphs together it is clear the Court did not extinguish use of the road way. Further Defendant is limited to the issues actually litigated, and in his wherefore clause in the previous suit, he asked only that the Court to decide a limited set of issues: 6. Enter an order determining that the title to the property of the Breens shall be in accordance with the survey prepared on January 30, 1978. 7. Compelling Carrol Tracey to cancel, surrender or satisfy of record the plan filed in the Cumberland County Courthouse on March 28, 2008, and to admit the invalidity of said plan with respect to the common boundary between the Breen and Tracey properties. 8. Bar the Defendant Tracey from asserting any right, title or interest in the Plaintiffs'land inconsistent with interest or claim of the Plaintiffs' as set forth in their survey. That Survey recognized the historical roads and egresses on the land. The claims for relief were not to extinguish those historical passages. For the doctrine of res judicata to prevail, there must be a concurrence of four conditions: 1) Identity in the thing sued upon; 2) Identity of the cause of action; 3) Identity of persons and parties to the action; and, 4) Identity of the quality or capacity of the parties suing or sued: Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 100 A. 2d 595 (1953), and Fisher Building Permit Case, 355 Pa. 364, 49 A. 2d 626 (1946). The cause of action asserted in this suit is different from the cause previously litigated. By moving Defendant's own admission neither Adverse Possession nor Proscriptive Easement was at issue in the first suit. Thus the second prong of the test fails. Further the first prong fails as well for proscriptive easement, because the thing being sued upon was a survey and dead, not an easement. Thus summary judgment is not applicable here. Respectfully Submitted, Rominger & Associates Date: l" /6(- (12 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiffs WILLIAM M. BREEN and IN THE COURT OF COMMON PLEAS OF SUSAN E. BREEN, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs • CIVIL ACTION—LAW v. • NO.: 09-5838—CIVIL TERM CARROLL TRACEY, ELIZABETH . MYERS, and BARRY SHOFF, Defendants CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, certify that I this day served a copy of the within Injunction upon the following by depositing the same in the United States Mail, first class, postage prepaid, addressed as follows: Lee C. Swartz, Esquire TUCKER ARENSBURG, P.C. 111 North Front Street P.O. Box 889 Harrisburg, Pennsylvania 17108 Respectfully Submitted, Rominger & Associates Date: I (2_ I / Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiffs CARROLL TRACEY and IN THE COURT OF COMMON PLEAS ELIZABETH MYERS, CUMBERLAND COUNTY, PENNSYLVANIA, Plaintiffs a -7 CIVIL ACTION — LAW/ EQUITY - -, V. cry =? WILLIAM M. BREEN and {= SUSAN E. BREEN, his wife, c - Defendants : 13-5391 CIVIL TERM —=--.# IN RE: MOTION OF DEFENDANTS FOR SUMMARY JUDGMENT" ORDER OF COURT AND NOW, this oew day of February, 2014, upon consideration of Defendants' Motion for Summary Judgment, the responses filed thereto, and after oral argument, we ORDER AND DIRECT as follows: 6. Defendants' Motion for Summary Judgment as to Plaintiffs' claim of Adverse Possession is GRANTED. 7. Defendants' Motion for Summary Judgment as to Plaintiffs' claim of Easement by Prescription is GRANTED. 8. Defendants' Motion for Summary Judgment as to Plaintiffs' claim of Easement by Estoppel is GRANTED. 9. Defendants' Motion for Summary Judgment as to Plaintiffs' claim of Easement by Necessity is DENIED. 10.Defendants' Motion for Summary Judgment as to Plaintiffs' Private Road Act claim under Act 169 of 1836 is DENIED. Further, Plaintiffs are DIRECTED to petition the Court under 36 Pa.C.S. § 2731 to request a determination whether a road is necessary. All costs associated with such a view shall be borne by Plaintiffs as per 36 Pa.C.S. §§ 1852, 1853, and 2736. 13-5391 CIVIL TERM By the Court, Albert H. Masland, J. ✓Karl E. Rominger, Esquire For laintiffs Lee C. Swartz, Esquire For Defendants ,Z>P ics� flbattgA -10- CARROLL TRACEY and IN THE COURT OF COMMON PLEAS ELIZABETH MYERS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION — LAW/ EQUITY V. WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Defendants 13-5391 CIVIL TERM IN RE: MOTION OF DEFENDANTS FOR SUMMARY JUDGMENT OPINION AND ORDER OF COURT Masland, J., February 26, 2014:-- Before this Court is a motion by Defendants William and Susan Breen for summary judgment. In this property dispute, Plaintiffs Carroll Tracey and Elizabeth Myers introduced a number of claims in the underlying action, specifically easement by prescription, ownership by adverse possession, easement by estoppel, easement by necessity and a Private Road Act claim under Act 169 of 1836.' A very brief summary of the facts is as follows: this action concerns a tract of land previously contested by the parties. In a prior action by Defendants to quiet title, this Court granted Defendants legal title. Consequently, Defendants notified Plaintiffs of their intention to build a fence on the recently settled boundary line. This fence would divide the driveway the Traceys and Myers use to access their respective properties. This action followed the notice. In reviewing a motion for summary judgment: [T]he court shall enter [summary] judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be Private Road Act codified at 36 Pa.C.S. § 2731, et seq. 13-5391 CIVIL TERM established by additional discovery. Under the Rules, a motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Finally, the court may grant summary judgment only where the right to such a judgment is clear and free from doubt. Toy v. Metro. Life Ins. Co., 928 A.2d 186, 194-95 (Pa. 2007) (Internal citations omitted). Ownership by Adverse Possession "It has long been the rule of this Commonwealth that one who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years." Conneaut Lake Park, Inc. v. Klingensmith, 66 A.2d 828, 829 (Pa. 1949). Plaintiffs claim the tract of land at issue is rightfully theirs under adverse possession. However, this issue was previously litigated and decided by this Court. In the previous action to quiet title, this Court ruled in favor of then-plaintiff Breens and awarded them legal title to the property. In doing so, this Court also "forever barred [Tracey and Myers] from asserting any right, lien, title or interest in the land." Final Order of Court, CV-09-5838, 12 October 2011, 16. The previous order establishes the legal fact that Defendants own the property at issue. Any claim to the contrary by the current Plaintiffs is barred by res judicata. Res judicata "prohibits parties involved in prior, concluded litigation from subsequently asserting claims in a later action that were raised, or could have been raised, in the previous adjudication." Wilkes v. Phoenix Home Life Mut. Ins. Co., 902 -2- 13-5391 CIVIL TERM A.2d 366, 376 (Pa. 2006). "The doctrine of res judicata developed to shield parties from the burden of re-litigating a claim with the same parties ... and to protect the judiciary from the corresponding inefficiency and confusion that re-litigation of a claim would breed." Id. Here, the parties are identical, as is the property in dispute. Plaintiffs already litigated the issue of ownership of the disputed property and lost. Accordingly there is no genuine issue of material fact and Defendants' motion for summary judgment as to the claim of adverse possession will be granted. Easement by Prescription "It is axiomatic that an easement by prescription arises by actual, continuous, adverse, visible, notorious and hostile possession of the property in question for a period of 21 years." Hash v. Sofinowski, 487 A.2d 32, 34 (Pa. Super. 1985). Further, an easement is "an interest in land in the possession of another which ... entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists...." Forest Glen Condo. Assn v. Forest Green Common Ltd. P'ship, 900 A.2d 859, 864 (Pa. Super. 2006) (Quoting the Restatement of Property § 450 (1944)). Where adverse possession grants the ownership of a contested property after a term of 21 years, an easement by prescription merely provides the claimant with an interest in the property. However, as was laid out in the discussion regarding adverse possession above, this Court previously barred any claim of"title or interest...." Final Order of Court, 12 October 2011, ¶ 6 (emphasis added). Given that an easement by prescription is merely a specific type of easement, and easements are interests in property, any claim to an easement is barred by the principles of res judicata as outlined -3- 13-5391 CIVIL TERM above. Therefore Defendants' motion for summary judgment as to Plaintiffs' claim of easement by prescription will be granted. Easement by Estoppel Easement by estoppel has been defined as "[a] court-ordered easement created from a voluntary servitude after a person, mistakenly believing the servitude to be permanent, acted in reasonable reliance on the mistaken belief." EASEMENT, Black's Law Dictionary (9th ed. 2009). There can be no valid request for the ruling of an easement by estoppel for the same reasons that adverse possession and easement by prescription cannot be found: this court has removed any interest or title Plaintiffs may have had to the property. Under the principles of res judicata, Defendants' request for summary judgment as to Plaintiffs' claim of easement by estoppel will be granted. Easement by Necessity "Claiming the existence of an easement by necessity contemplates a situation in which a parcel of land is landlocked." Phillippi v. Knotter, 748 A.2d 757, 760 (Pa. Super. 2000) (Internal quotations omitted). Plaintiffs request an easement by necessity to allow for continued access to their respective properties. Defendants request summary judgment on Plaintiffs' claim of easement by necessity, contending that Plaintiffs have alternative methods of ingress and egress onto their properties. As previously noted, the standard of review for granting of summary judgment requires the court to view the facts in a light most favorable to the non-moving party. Further, summary judgment should only be granted when "there is no genuine issue of any material fact as to a necessary element of the -4- 13-5391 CIVIL TERM cause of action or defense that could be established by additional discovery." Toy v. Metro. Life Ins. Co., 928 A.2d 194 (Pa. 2007). In the instant case, there is clearly an issue of material fact. Plaintiffs claim that denial of access to the driveway will block access to their respective properties, while Defendants assert that other means of ingress and egress are available. Further, testimony or discovery could establish.the veracity of one of the parties' statements and therefore summary judgment would be improper at this time. As noted by Plaintiffs in their brief, this issue is not immediately precluded by res judicata. A request for easement by necessity did not ripen until the contested tract of land was awarded to Defendants in the prior action and notice was given that a fence was to be constructed on the border of that contested tract of land. While one could argue that the previous order2 negated any claim of easement by barring claims of interest, an easement by necessity is not a claim of an existing or prior interest like general easements or prescriptive easements. Instead, easements by necessity are necessary for the full enjoyment of the property and only become evident when such enjoyment is threatened. It should be noted that easement by necessity is an equitable remedy. While this Court is not yet willing to grant the motion for summary judgment, neither are we willing to consider an equitable remedy at this time. "The equity jurisdiction of Pennsylvania courts is triggered only when an adequate remedy is not available at law." Petrecca v. Allstate Ins. Co., 797 A.2d 322, 326 (Pa. Super. 2002) (Citing Peitzman v. Seidman, 427 A.2d 196, 198 (Pa. Super. 1981)). In the instant matter, having raised the issue of 2 Final Order of Court, CV-09-5838, 12 October 2011. -5- 13-5391 CIVIL TERM the Private Road Act of Act 169 of 1836, Plaintiffs have requested a remedy at law. Therefore, until that matter is decided, any determination of an equitable remedy would be premature. Given the genuine issue of material fact as to the existence of alternative methods of ingress and egress, Defendants' motion for summary judgment as to Plaintiffs' claim of easement by necessity will be denied. Further pursuit of the claim is to be delayed until Plaintiffs' remedy at law has been determined. Private Road Act Claim Under Act 169 of 1836 As noted in Defendants' brief in support of their motion for summary judgment, the Private Road Act claim is "a statutory method of obtaining an easement by necessity." Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment Dismissing Plaintiff's Complaint, 8 January 2014, 7. As the statutory implementation of easement by necessity, the same arguments against summary judgment apply. There is, at present, a genuine issue of material fact regarding Plaintiffs' access to their properties and therefore summary judgment is improper. However, the Private Road Act dictates the procedures that must be followed in order to determine whether a private road is necessary. The Private Road Act is currently codified at 36 Pa.C.S. § 2731, et. seq. First, the court must be petitioned to appoint a board of viewers. 36 Pa.C.S. § 2731. The Board of Viewers (Board) is comprised of three viewers, 36 Pa.C.S. § 1781, whose only qualifications are that they be fair, judicious, and impartial voting-eligible persons, one of whom shall be a surveyor, with preference given to those who live near or would know of the land in contest, 36 Pa.C.S. §§ 1783, 2461. The Board will then view the land and -6- 13-5391 CIVIL TERM determine if a road is necessary. 36 Pa.C.S. § 1785. Further, upon completion, the Board shall make a report including, among other things, whether the road desired be necessary for a public or private road. 36 Pa.C.S. § 1831. From there the court can enter onto the record the report by the Board for the creation of the road. 36 Pa.C.S. § 2732. We note that the petitioner who requests the road is wholly responsible for the expenses of any such viewing, 36 Pa.C.S. § 1852, the assessment of damages sustained by the owner of the land, 36 Pa.C.S. § 1853, and any such damages themselves, 36 Pa.C.S. § 2736. Unless and until all damages are paid, no private road can be created. 36 Pa.C.S. § 2736. In order to proceed under the Private Road Act, the party must petition this Court to form a board of viewers to make their report as to the necessity for a private road. For the same reasons as those above related to the genuine issue of material fact as to the availability of alternative methods of access to Plaintiffs' property, Defendants' motion for summary judgment pertaining to the Private Road Act Claim under Act 169 of 1836 will be denied. Should Plaintiffs wish to proceed with their claim, they shall file a petition to this court for the appointment of a Board of Viewers. ORDER OF COURT AND NOW, this � day of February, 2014, upon consideration of Defendants' Motion for Summary Judgment, the responses filed thereto, and after oral argument, we ORDER AND DIRECT as follows: 1. Defendants' Motion for Summary Judgment as to Plaintiffs' claim of Adverse Possession is GRANTED. -7- 13-5391 CIVIL TERM 2. Defendants' Motion for Summary Judgment as to Plaintiffs' claim of Easement by Prescription is GRANTED. 3. Defendants' Motion for Summary Judgment as to Plaintiffs' claim of Easement by Estoppel is GRANTED. 4. (Defendants' Motion for Summary Judgment as to Plaintiffs' claim of Easement by Necessity is DENIED. 5. Defendants' Motion for Summary Judgment as to Plaintiffs' Private Road Act claim under Act 169 of 1836 is DENIED. Further, Plaintiffs are DIRECTED to petition the Court under 36 Pa.C.S. § 2731 to request a determination whether a road is necessary. All costs associated with such a view shall be borne by Plaintiffs as per 36 Pa.C.S. §§ 1852, 1853, and 2736. By the Court, Albert H. Masland, J. Karl E. Rominger, Esquire For Plaintiffs Lee C. Swartz, Esquire For Defendants -8- \ FILES \Clients \135814 Tracey \ 13588.2 \ 13588.2.Praecipe to enter appearance.wpd Created: 9/20104 0:06PM Revised: 4/15/14 11:09AM Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs GILROY & FALLER .; THE 2014 APR 15 PH 1:51 CUMBE RLAND COUNTY PENNSYLVANIA CARROL TRACEY and ELIZABETH MYERS, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION — LAW : NO. 2013-5391 WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Defendant PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter the appearance of Martson Law Offices and Hubert X. Gilroy, Esquire as attorney for Plaintiffs, Carrol Tracey and Elizabeth Myers. Dated: April I , 2014 ubert X. Gi Martson Law 10 East Hi , Esquire flees reet Carlisle, PA 17013 (717) 243-3341 ID #29943 Attorney for Plaintiffs Hubert X. Gilroy,3tCEe32Ets9q3ui re _ ELY R36 g OF fe' Attorney I.D. or4 MARTSON LAWOFFICES 92014 JUN 20 PH 2: 5 10 East High 3SeCUMBERLAND COUNTY Carlisle, P-A 17013 PENNSYLVANIA (717) 243 4 Attorneysfor. Petitioners CARROL TRAYand : IN THE COURT OF COMMON PLEAS ELIZABETH MYERS,. : CUMBERLAND COUNTY, PENNSYLVANIA Petitioners vs. : CIVIL ACTION —LAW : NO. 2013-5391 WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Respondents PETITION FOR APPOINTMENT OF A BOARD OF VIEW AND NOW, come the Petitioners, Carroll Tracey and Elizabeth Myers ("Petitioners"), by and through their attorneys, MARTSON LAW OFFICES, who set forth the following: 1. This Petition is filed in accordance with the February 26,2014,Order of Court in the above captioned case directing Petitioners to file a Petition pursuant to 36 P.A.C.S. §2731 to request the determination whether a road is necessary. 2. Petitioners incorporate the allegations set forth in the Complaint and other pleadings filed in this matter. 3. Counsel for the Respondents,Lee C. Swartz,Esquire,was consulted and he concurs with Petitioners request for an appointment of a Board of View. 4. The Honorable Albert H. Masland has conducted all proceedings in this case. WHEREFORE, Petitioners request that this Honorable Court to appoint a Board of View. MARTSON LAW OFF ES By: Hubert X. ilroy, Esquire I.D. No. 2'943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: /?4//V Attorneys for Petitioners r Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Petitioners it r -f PROTH01-10 ?Nit AFS10: 35 CUMBERLAND COUNTY PENNSYLVANIA CARROL TRACEY and ELIZABETH MYERS, Petitioners : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION — LAW : NO.2013-5391 WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Respondents ORDER OF COURT AND NOW, this 3vday of Petition of Carroll Tracey and Elizabeth $(Myers for the appointment of a Board of View to open a private road, it is hereby ORDERED that the Petition of Carroll Tracey and Elizabeth Myers is granted and the following individuals are appointed to the Board of View: , 2014, upon consideration of the within The first named individual shall serve as the Chairperson who shall schedule, convene, and conduct the proceedings as provided by 36 P.S. §2731, et seq. DISTRIBUTION: i Hubert X. Gilroy, Esquire Lee C. Swartz, Esquire Ce pi eS By the Court, Albert H. Masland, Judge Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Petitioners r a•c. — . . : ! H PARC THONG LONG r 20l4JUN 2U PH 2:51 /0 CUMBERLAND COUNTY PENNSYLVANIA CARROL TRACEY and ELIZABETH MYERS, Petitioners vs. WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Respondents : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION — LAW : NO.2013-5391 PETITION FOR APPOINTMENT OF A BOARD OF VIEW r*y AND NOW, come the Petitioners, Carroll Tracey and Elizabeth Myers ("Petitioners"), by and through their attorneys, MARTSON LAW OFFICES, who set forth the following: 1. This Petition is filed in accordance with the February 26, 2014, Order of Court in the above captioned case directing Petitioners to file a Petition pursuant to 36 P.A.C.S. § 2731 to request the determination whether a road is necessary. 2. Petitioners incorporate the allegations set forth in the Complaint and other pleadings filed in this matter. 3. Counsel for the Respondents, Lee C. Swartz, Esquire, was consulted and he concurs with Petitioners request for an appointment of a Board of View. 4. The Honorable Albert H. Masland has conducted all proceedings in this case. WHEREFORE, Petitioners request that this Honorable Court to appoint a Board of View. MARTSON LAW OFF ES Date: k /V By: Hubert X. Gilroy, Esquire I.D. No. 2.943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Petitioners CARROLL TRACEY and ELIZABETH MYERS, PLAINTIFFS V. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM M. BREEN and SUSAN E. BREEN, his wife, DEFENDANTS : 13-5391 CIVIL TERM AND NOW, this ORDER OF COURT 714 day of August, 2014, the appointment of William A. Duncan, Esquire to the Board of View is VACATED and Stephen D. Tiley, Esquire, is appointed in his stead. Lee C. Swartz, Esquire For Plaintiffs Hubert X. Gilroy, Esquire For Defendants r William A. Duncan, Esquire Stephen D. Tiley, Esquire :sal Copra tha,leet if r%q PG By the Court, Albert H. Masland, J. Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs cj, CARROL TRACEY and ELIZABETH MYERS, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVA 1IA: vs. : CIVIL ACTION — LAW : NO.2013-5391 WILLIAM M. BREEN and SUSAN E. BREEN, his wife, Rdefendants PETITION FOR SPECIAL RELIEF Plaintiffs, Carroll Tracey and Elizabeth Myers ("Petitioners"), by and through their attorneys, MARTSON LAW OFFICES, set forth the following: 1. Plaintiff's counsel has received the letter attached hereto and marked Exhibit 'A' from Defendant's counsel suggesting that Defendants intend to remove a fence which has been the subject of this litigation. 2. The Order issued by Judge Masland in this matter previously indicated that the fence would be removed when repairs and replacement were necessary, and Plaintiffs do not feel that such repairs or replacement are necessary. 3. Plaintiffs request Your Honorable Court to issue an Order enjoining Defendants from taking any action with respect to the fence pending resolution of this matter, and Plaintiffs' counsel suggest that the matter could best be addressed initially with a Conference in Chambers with legal counsel for the parties and the Court. 4. The undersigned contacted counsel for the Defendants, Attorney Lee C. Swartz, and Attorney Swartz does not concur in this request. WHEREFORE, Plaintiffs request that Your Honorable Court to issue an Order in the form as attached. MARTSON LAW OFFICES By: Date: /4 Hubert X. Gilroy squire I.D. No. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs TUCKER ARENSBERG Attorneys Lee C. Swartz Iswartz@tuckerlaw.com Certified as a Civil Trial Advocate by the National Board of Trial Advocacy, A Pennsylvania Supreme Court Approved Agency December 11, 2014 Via First Class Mail Hubert X. Gilroy, Esq. Martson Law Offices 10 East High Street Carlisle, Pa 17013 RE: William and Susan Breen Dear Hubert: My client William Breen has decided to exercise his right under the final Court Order of October 12, 2011, signed by Judge Masland, paragraph 5. That paragraph indicates that the Defendants Tracey and Myers, are "directed to remove those sections of their fence should encroach upon Plaintiffs property, as set forth in the attached survey, when repairs and replace when become necessary." Mr. Breen advises me that repairs and replacement have become necessary, and he has photographs to prove it. Consequently, he wishes me to advise you that he will give your clients 30 days notice in which to tear down the fence or he will remove it himself. According to Mr. Breen's survey and testimony in Court by Hartman employees, the entire fence is on Mr. Breen's property. I have called you to discuss this matter, and hope that we have been able to talk about it and additional matters by the time you receive this letter. I also enclose a copy of a letter which I sent to the Chairman of the Board of View requesting a view. Sincerely yours, TUCKER ARENSBERG, P.C. Lee C. Swartz LCS/sed HBGDB:147826-1 020903-129350 EXHIBIT TuckerArensberg, P.C. 2 Lemoyne Drive Suite 200 Lemoyne, PA 17043 p. 717.234.4121 f. 717.232.6802 www.tuckerlaw.com 1500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 412.594.5619