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HomeMy WebLinkAbout14-3683s E C T I 0 N A S E c T I 0 N B Supreme Court°ofPennsylvania • Courtcif Comm" o i�Pleas 0 i1:Co er Sheet Cumberland'" ' County For Prothonotary Use Only: Petition Declaration of Taking Docket No:, /y-3643 The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and ,service ofpleading5 or other papers as required by law or rules of court. Commencement of Action: Petition Declaration of Taking CI Complaint 1 Writ of Summons ® Transfer from Another Jurisdiction _ Lead Plaintiffs Name: Shannon F. Leffler Lead Defendant's Name: David J. Raphael Dollar Amount Requested: (check one) 1 within arbitration limits Are money damages requested? ® Yes No $ outside arbitration limits Is this an MDJAppeal? Is this a Class Action Suit? Yes El No 1 Yes X No Name of Plaintiff/Appellant's Attorney: Ivo V. Otto, Esquire/Katie J. Maxwell, Esquire a Self -Represented [Pro Se] Litigant) Check here if you have no attorney (are 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 Mass Tort) 0 Intentional 0 Malicious Prosecution O Motor Vehicle O Nuisance O Premises Liability Product Liability (does not include mass tort) O Slander/Libel/ Defamation O Other: MASS TORT O Asbestos O Tobacco .❑_l Toxic Tort - DES O Toxic Tort - Implant • Toxic Waste O Other: PROFESSIONAL LIABLITY O Dental 10 Legal I.❑_ Medical O Other Professional: CONTRACT (do not include Judgments) 0 Buyer Plaintiff O Debt Collection: Credit Card 0 Debt Collection: Other • Employment Dispute: Discrimination O Employment Dispute: Other O Other: REAL PROPERTY O Ejectment • Eminent Domain/Condemnation 0 Ground Rent O Landlord/Tenant Dispute O Mortgage Foreclosure: Residential 0 Mortgage Foreclosure: Commercial O Partition I© Quiet Title • Other: CIVIL APPEALS Administrative Agencies 0 Board of Assessment fP Board of Elections O Dept. of Transportation O Statutory Appeal: Other O Zoning Board O Other: MISCELLANEOUS O Common Law/Statutory Arbitration El Declaratory Judgment O Mandamus 0 Non -Domestic Relations Restraining Order 0 Quo Warranto _ Replevin O Other: Updated 1/1/2011 Ivo V. Otto, III, Esquire Attorney I.D. No. 27763 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff le t' JU}-, 1...) C1IMBERLA D COU PENNSYLVANIA OTTO GILROY & FALLER SHANNON F. LEFFLER and DAVID W. LEFFLER, PAUL F. ORR and DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, Plaintiffs v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14 -3683 CIVIL TERM DAVID J. RAPHAEL and MICHELLE J. : THORP, Defendants 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 for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 ekk � 30777 F:\FILES\Clients\12086 Leffler (Edwards)\12086.3 construction Loan Graham St\12086.3.complaint.wpd Ivo V. Otto, III, Esquire Attorney I.D. No. 27763 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff SHANNON F. LEFFLER and : IN THE COURT OF COMMON PLEAS OF DAVID W. LEFFLER, : CUMBERLAND COUNTY, PENNSYLVANIA PAUL F. ORR and DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, Plaintiffs : NO. 14 - CIVIL TERM v. DAVID J. RAPHAEL and MICHELLE J. : THORP, Defendants COMPLAINT FOR DECLARATORY JUDGMENT AND NOW, come the Plaintiffs, by and through their attorneys, MARTSON LAW OFFICES, and file the following Complaint for Declaratory Judgment as follows: 1. Shannon F. and David W. Leffler ("Lefflers") are adult individuals residing at 265 West Pomfret Street, Carlisle, Cumberland County, Pennsylvania. 2. On September 18, 2013, Lefflers purchased a vacant lot fronting on Graham Street, Carlisle, Cumberland County, Pennsylvania. The property is identified as Cumberland County Tax Parcel No. 04-21-0322-191 ("Leffler Parcel"). 3. Paul F. and Darlene G. Orr ("Orrs") are adult individuals residing at 260 South College Street, Carlisle, Cumberland County, Pennsylvania. 4. The Orrs' property is referenced at Cumberland County Tax Parcel No. 04-21-0322- 187 ("Orr Parcel"). 5. Thomas F. Boyle and Elizabeth J. Jamieson ("Boyle and Jamieson") are adult individuals residing at 252 South College Street, Carlisle, Cumberland County, Pennsylvania. 6. The Boyle and Jamieson property is referenced at Cumberland County Tax Parcel No. 04-21-0322-188 ("Boyle and Jamieson Parcel"). 7. Defendants David J. Raphael and Michelle J. Thorp ("Raphael and Thorp") are adult individuals residing at 325 Walnut Street, Carlisle, Cumberland County, Pennsylvania. 8. The Raphael and Thorp property is referenced at Cumberland County Tax Parcel No. 04-21-0322-191H (the "Raphael and Thorp Parcel"). 9. The Leffler Parcel, Boyle and Jamieson Parcel, Orr Parcel and the Raphael and Thorp Parcel are all subject to an Easement Agreement ("Easement Agreement") for the use of an alley adjacent to each property which was entered into on July 3, 1981, by the predecessors in title of the Parcels. The Easement Agreement is attached hereto as Exhibit "A." 10. The Easement Agreement concerns the use of an alley ("Alley") that runs along the eastern edge of the Raphael and Thorp Parcel. 11. Raphael and Thorp use the Alley to access their property and their driveway abuts and is perpendicular to the Alley. 12. The Alley also provides access to the rear portion of the Orr Parcel, the Boyle and Jamieson Parcel, and to the southern end of the Leffler Parcel. 13. The Leffler Parcel faces Graham Street and the Raphael and Thorp Parcel faces Walnut Street, Graham and Walnut being parallel streets, and the Parcels share a common boundary along the rear portion of the Parcels. 14. Dr. Rodney B. Fritchley and Karen S. Fritchley ("Fritchleys") are the predecessors in title to the Raphael and Thorp Parcel. 15. The Fritchleys sold the property to Raphael and Thorp on March 30, 2002. 16. The Easement Agreement provides in paragraph 8 that the parties agree "that FRITCHLEY may construct and maintain across the easement herein provided a gate of such size and opening to permit passage of a trash truck to and from the premises of ANDREWS. Such gate to be constructed at a point on said easement as an extension of the northern property line of FRITCHLEY. The gate shall not be locked unless by ANDREWS but shall be closed when not in use. No other party shall have any obligation to construct or maintain the aforesaid gate. The right to construct and maintain said gate shall be personal to FRITCHLEY." 17. Raphael and Thorp have maintained the gate referenced in Paragraph 8 of the Easement Agreement despite the Easement Agreement specifically providing that "the right to construct and maintain said gate shall be personal to Fritchley." 18. The rights enumerated in Paragraph 8 of the Easement Agreement do not run with the land, and accordingly, do not apply to Raphael and Thorp. 19. The Lefflers are currently constructing a home on the Leffler Parcel and have been directing their contractor to use the Alley for the delivery of materials for their new home. 20. The construction equipment has caused damage to the Alley, which the Lefflers will repair when construction of their home is complete. 21. Since the Lefflers have begun construction, they have had repeated contact with Raphael and Thorp regarding the use of the Alley. 22. Despite the provisions of paragraph 1 of the Easement Agreement specifically providing for the use of the Alley in common with the owners of lots abutting the Alley, Raphael and Thorp maintain that the Lefflers have no legal right to access the alley or to allow their contractor to use it for the movement of construction equipment. 23. On Friday, April 4, 2014, Thorp denied Lefflers construction company access to the Alley, and the Carlisle Police Department was called to the scene and ultimately directed Thorp to allow the vehicles to access the Alley. 24. On Saturday, April 5, 2014, Raphael and Thorp secured the gate referenced in Paragraph 8 of the Easement Agreement. 25. The Easement Agreement specifically provides that "the gate shall not be locked unless by Andrews but shall be kept closed when not in use". 26. Bruce R. and Marjorie Andrews are the predecessor in title to the Boyle and Jamieson Parcel. Boyle and Jamieson have not given Raphael and Thorp authority to secure the gate. 27. Raphael and Thorp persist in asserting their position that Lefflers have no right to access the Alley. 28. Raphael and Thorp's action of securing the gate across the Alley has interfered with the Lefflers' and Boyle and Jamieson's ability to access their respective properties. 29. Orrs join in this action as owners ofproperty abutting the Alley and as parties subject to the Easement Agreement. WHEREFORE, Lefflers, Boyle and Jamieson, and Orrs respectfully request this Honorable Court to enter declaratory judgment that: 1) The Plaintiffs are entitled to the free and uninterrupted use of the easement for access to their respective properties. 2) There shall be no obstruction, act or conduct which shall interfere with the free and uninterrupted right of the parties to use the easement for access by persons or vehicles to their respective properties. 3) The "right to construct and maintain" a gate as set forth in Paragraph 8 of the Easement Agreement was extinguished by the conveyance ofFritchley to Rafael and Thorp. 4) Raphael and Thorp will remove the gate across the Alley; and, 5) Allocation of the costs of the Alley's maintenance will be proportional with the parties' use. MARTSON LAW OFFICES By:✓c . ACI Ivo V. Otto Esquire I.D. No. 27763 Katie J. Maxwell, Esquire I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Date: (p ((I AGREEMENT THIS AGREEMENT made and entered into this 1,.../de day of , 1981, by and between WM. A. KRAMER, 2ND, and LLIAM E. HOFFMAN, of Carlisle, hereinafter referred to as "DEVELOPERS"T DR. RODNEY B. FRITCHLEY and KAREN S. FRITCHLEY, his wife, of Mt.' Holly Springs, hereinafter referred to as "FRITCHLEY"; GEORGE B. FALLER, Executor of the Estate of Elizabeth B. Faller, Deceased, late of the Borough of Carlisle, hereinafter referred to as "FALLER"; BRUCE R. ANDREWS and MARGORIE ANDREWS, his wife, of the Borough of Carlisle, hereinafter referred to as "ANDREWS"; and JAMES R. HUMER and LORRAINE H. HUMER, his wife, of the Borough of Carlisle, hereinafter referred to as "HOMER", all of Cumberland County, Pennsylvania. WHEREAS, DEVELOPERS are in the process of subdividing the Lamberton School property which they purchased from the Carlisle Area School District, said premises being more particularly bounded and described in the Deed from the School District to DEVELOPERS recorded in Deed Book "F", Volume 29, Page 8B8; and WHEREAS, FALLER owns a premises adjoining DEVELOPERS' as is more particularly described in Deed Book "j ", Volume 2•4 , Page 1J3 t and WHEREAS, ANDREWS owns a premises adjoining DEVELOPERS' as 1 is more particularly described in Deed Book "S", Volume 2,1 Page O S" L and WHEREAS, FRITCHLEY and HUMER have entered into Agreements of Sale with the DEVELOPERS to purchase lots which in part adjoin the properties of FALLER and ANDREWS; and WHEREAS, for an undetermined number of years the FALLER and ANDREWS and their predecessors in title have used the Eastern portion of the School property for access.to the rear of their respective properties from Walnut Street; and EXHIBIT ____A____ BOOR 266 PACE WO - 1 - .• 1 •c rroo Wow arc+ s ••• ra 1.10sn f `ri w 1 10.4 WHEREAS, it is the desire of all the parties hereto to enter into an Agreement setting forth the rights, duties, obligations and responsibilities of the various parties with respect to the aforesaid easement. NOW, THEREFORE, in and for the sum of One ($1.00) Dollar paid by each of the parties hereto to the other, the receipt whereof is hereby acknowledged, intending to legally be bound - hereby, the parties hereto mutually agree as follows: 1. That DEVELOPERS, HUMER and FRITCHLEY do by these presents grant unto FALLER, ANDREWS, their successors, personal representatives, heirs and assigns the prepetual, irrevocable right and easement over the following described tract of land to permit ingress and egress for persons and motor vehicles to the tracts of land owned by them to be used in common with the owners of lands abutting said easement. ALL that certain tract of land situate in the Borough of Carlisle, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit; BEGINNING at a point in the northern right-of-way line of Walnut Street, and at lande of John C. Steele; thence by lands of Steele, Estate of Elizabeth B. Faller, Deceased, and Bruce R. Andrews, North 5 degrees East, 280 feet, more or less, to a point 2 feet South of the northern boundary of the aforesaid Andrews property; thence by lands about to be conveyed to James R. Ruiner et ux, North 65 degrees West, 16 feet to a point; thence by same and lands about to be conveyed to Dr. Rodney B. Fritchley, et us, South 5 degrees West, 280 feet, more or leas, to a point in the northern right-of-way line of Walnut Street; thence by same, South 85 degrees East, 16 feet to a point, the place of BEGINNING. BEING part of the premises which the Carlisle Area School District, by its Deed dated December 12, 1980, and recorded in the Office of the Recorder of Deeds in and for Cumberland .County in Deed Book "F", Volume 29, Page 888, granted and conveyed unto WM. A. KRAMER, 2ND and WILLIAM E. HOFFMA.V, DEVELOPERS and Grantors herein. - 2 - 80% 266 PACE 991 2. That all of the parties hereto agree that there shall be no obstruction, act or conduct which shall interfere with the free and uninterrupted right of the other parties hereto to use the easement for access by persona or vehicles to their respective properties, except as herein provided. 3. That FALLER and ANDREWS agree that they shall share equally the expense of improving, maintaining and repairing the aforesaid easement from the Northern edge of the driveway to be constructed by FRITCNLEY in a Northern direction to the • Northern terminus thereof, except that the parties whose wrongful acts or negligence, or those of hie family or invited guests, causes damage to the easement shall be solely responsible for the expense necessary to restore name to itse condition prior to such damage. 4. That the adjoining owners hereby agree to keep the aforesaid easement free of trash and other debris from their property.and to keep the easement open and free of parked vehicles. 5. That FALLER and ANDREWS each agree to install one pole light at the edge of their property and the aforesaid easement or to install a similar type fixture on their garage, which lights shall be on and provide light from dusk to dawn daily. 6. That all of the parties hereto mutually agree that said easement shall not be extended beyond its current Northern terminus nor under any circumstances shall it become a throughway or means of access from Walnut Street to Graham Street. 7. That DEVELOPERS agree to mark the current Northern terminus of the easement with an obstruction deemed to be suitable to them. 8. It is agreed that FRITCI1LEY may construct and maintain across the easement herein provided a gate of ouch sire and opening to permit passage of a trash truck to and from the BOOK 266 PAGE 99:?, • premises of ANDREWS. Such gate to be constructed at a point on said easement as an extension of the Northern property line of FRITCHLEY. The gate shall not be locked unless by ANDREWS but shall be kept closed when not in use. No other party shall have any obligation to construct or maintain the aforesaid gate. The right to construct and maintain said gate shall be personal to FRITCHLEY. 9. That the grants, easements, covenants and declarations'~ herein made shall be deemed to be covenants running with the land and shall bind and inure to the benefit of the owners of the FALLER and ANDREWS tracts and the tracts about to be purchased by FRITCHLEY and HUMER from DEVELOPERS, their heirs, personal representatives and assigns and succespore in title. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written. /�T2ey4. .rx 4 oz.cd Wm. /'A,. Kramer d, �� .per William E. Hof m.1, Vi R. f. -F Dr. Rod ey Fr tc 1 f_ ve oper (SEAL) (SEAL) (SEAL) (SEAL) Her r�t S. Fr tchley�j ©� ✓ e.�� (SEAL) Faller, Execug7-131Nhe Elizabeth 8. Faller, Deceased c+tA Etat , M ' (SEAL) Loraine H. Sumer - 4 - MA 266 nu 993 COMMONWEALTH OF PENNSYLVANIA ) : SS.: COUNTY OF CUMBERLAND On this, the Ciday of the undersigned officer, personally , 1981, before me, appeared WM. A. KRAMER, 2ND, known to me (or satisfactorily proven)to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. (1Ilfhpe g oeery er MERUNE MARHEVICA, New, Pet►G;+ Cod1d", C.ab.da,d Cowly, i . C A ' , h: COMMONWEALTH OF PENNSYLVANIA ) • YIi 3 'I t SS.: COUNTY OF CUMBERLAND 1 On this, the 944—day of , 1981, before me, the undersigned officer, personal y eared WILLIAM E. HOFFMAN, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein contained. Iii WITNESS WHEREOF, I hereunto set my hand and official , „) Notary IQ' •;� s MERCENE MARNEVICA, Notary PrARa ' +fi, •ti ^^ j Carlisle, C..bola.,d Cower, fa. •,'��/' COMMONWEALTH OF PENNSYLVANIA )+`+y CO1"'"i" , E`''''" hi !Ytt .'• t SS.: COUNTY OF CUMBERLAND (� On this, the 7 ! day of , 1981, before me, the'undereigned officer, personally appeared DR. RODNEY B. FRITCHLEY and (WREN S. FRITCHLEY, his wife, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed d same for the purposes therein contained. `�rSfl�'•. IN WITNESS WHEREOF, I hereunto set my hand and offici{►�•..,• seal. l •, seal. &Al JUN— a Le -AA_ Notary Pub 1 NOTARY ?URIC NOTARY PURUC -way` Cwl:r.• 4.h.r1..4 C . p C. u.. . r New . , T1(Corira" UPI's' 14 lye! b00K 266 PALE 994 — 5 c. COMMONWEALTH OP PENNSYLVANIA ) t SS.: COUNTY or CUMBERLAND On this, the _L• day of , 1981, before me, the undersigned officer, personally appeared GEORGE 8. FALLER, Executor of the Estate of Elizabeth 8. Faller, Deceased, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein contained and in the capacity therein stated. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ta, ;r • M W ar 4 1411410(mak COMMONWEALTH OF PENNSYLVANIA ) t SS.t COUNTY OF CUMBERLAND ON THIS. the u:„ day of 9-..ait1, 1981, before me, the undersigned officer, personally appeared BRUCE R. ANDREWS and MARGORIE ANDREWS, his wife, known to me (or satisfactorily proven) to be the persona whose names are subscribed to the within instrument, and acknowledged that they executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. -4 • 6 ary P • c surto P. t2er:••• w. •;ta * -4 •. Mr inenudM Fc w. 5• �1•.: Ca PA 1. , 3. I Uwe BOOK 266 PACE 995 •.c COKMONWEALTH OF PENNSYLVANIA ) t SS.I COUNTY OF CUMBERLAND ) On this, the / Sd day of , 1981, before me, the undersigned officer, personally appeared JAMS R. HUMER and LORRAINE H. HUMER, his wife, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within'instrument, and acknowledged that they executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Nof . ry Publ C,I Shirley W. s. NOTPAY PYTivtr.:.. •, :•s i �rrf w, earrruN r Wan a4 �,�1��s9`. r. �► twee Y«7i ! 0 n: . 1 v �` c • ek' 4t'1.3' Sate of PennsyMnts I ss County of Cumberland Recorded In the office for ths recording of Dads seg, In and for Cumbl.Mnd County, Pa, In Vol. Pae 991, *kw* my hand and Baal offkts, it • Culls* Pa. - 7 — BOOK 266 PACE 996 VERIFICATION The foregoing Complaint is basedupon information whichhas been gathered by ourcounset in the preparation of the lawsuit. The language of the document is that of counsel and not our own. We have read the document and to the extent that itis based upon information which we have given to our counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the content of the document is that of counsel, we have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if we wingly false averments, we may be subject to criminal p PVILEIPACSNOW014LatisOtdaadspV.3awlaeba3..a4nima11/1120/i.3_vefeva ltbN.ilier+p! VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, h provides that if I make knowingly false averments, I may be subject to criminal penaltie Paul F. Orr C,.Ow\ Darlene G. Orr F:\FILES\Clients\12086 Leffler (Edwards)\12086.3 construction Loan Graham St\ 12086.3.verifications.wpd VERIFICATION The foregoing Complaint is based upon information which has been gathered by our counsel in the preparation of the lawsuit. The language of the document is that of counsel and not our own. We have read the document and to the extent that it is based upon information which we have given to our counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the content of the document is that of counsel, we have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if we make knowingly false averments, we may be subject to criminal penalties. Elizab J. Jamieson F:\FILES\Clients\12086 Leffler (Edwards)\12086.3 construction Loan Graham St\ 120863.verification.complai t.boylc andjamieson.wpd F:\FILES\Clients\12086 Leffler (Edwards)\12086.3 construction Loan Graham St\ 12086.3.motion.injunction.wpd Ivo V. Otto, III, Esquire Attorney I.D. No. 27763 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff THE ?R01 HOH0 3 21111i ,:11,11'i 19 PM 3: 3`: I U PENAND LVANIAN TY SHANNON F. LEFFLER and DAVID W. LEFFLER, PAUL F. ORR and DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, Plaintiffs v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14 - ;K3 CIVIL TERM DAVID J. RAPHAEL and MICHELLE J. : THORP, Defendants MOTION FOR PRELIMINARY INJUNCTION AND NOW, come the Plaintiffs, by and through their attorneys, MARTSON LAW OFFICES, and file the following MOTION FOR PRELIMINARY INJUNCTION, and in support thereof aver as follows: 1. Plaintiffs' Complaint for Declaratory Judgement was filed on June 19, 2014, is hereby incorporated herein as if fully set forth. A copy of Plaintiff's Complaint for Declaratory Judgment is attached hereto as Exhibit A. 2. As stated in Plaintiff's Complaint, Plaintiffs Shannon F. and David W. Leffler ("Lefflers") are constructing a home on Walnut Street, Carlisle, Cumberland County, Pennsylvania. 3. Lefflers have been directing their contractor to use an alley ("Alley"), with an entrance on Walnut Street, and which accesses the rear of the Lefflers' construction site, for the delivery of materials for their new home. 4. The Alley abuts and is perpendicular to Defendants David J. Raphael and Michelle J. Thorp's ("Raphael and Thorp") driveway, and Raphael and Thorp use the Alley to access their driveway. 5. Since the Lefflers began construction of their new home, Raphael and Thorp have repeatedly contacted undersigned counsel alleging that Lefflers have no legal right to access the Alley, or authorize use of the Alley to the construction equipment. 6. On Friday, April 4, 2014, Thorp denied Lefflers construction company access to the alley, and the Carlisle Police Department was called to the scene and ultimately directed Thorp to allow the vehicles to access the alley. 7. On Saturday, April 5, 2014, Rafael and Thorp secured the gate across the Alley, seeking to prevent Lefflers, and Plaintiffs Thomas F. Boyle and Elizabeth J. Jamieson ("Boyle and Jamieson") from accessing their respective properties. 8. The gate was opened by Jamieson on Saturday April 5, 2014. 9. Lefflers' ability to construct their home has been and will continue to be delayed if Raphael and Thorp are able to persist with their efforts to deny Lefflers access to the Alley. 10. Lefflers and Boyle and Jamieson have been and will continue to be unable to access their properties if Raphael and Thorp persist with taking efforts to physically bar them from the Alley. 11. Plaintiffs Paul F. Orr and Darlene G. Orr join in this action as owners of property abutting the Alley and as parties subject to the Easement Agreement referenced in Exhibit "A" to Plaintiffs' Complaint. 12. The issuance of a preliminary injunction will not cause undue inconvenience or loss to the Defendants as they will continue to have access to their property, and accordingly, Plaintiffs are not required to post a bond in this matter. 13. Defendants, who are attorneys and have been representing themselves, have been contacted and do not concur in this Motion. WHEREFORE, Plaintiffs respectfully request this honorable Court to enter an Order preliminarily enjoining Defendants from denying Plaintiffs access to the Alley as fully described in the Easement Agreement, attached as Exhibit A to Plaintiffs' Complaint. MARTSON LAW OFFICES By: Date: % / f °) 1 i y" Ivo V. OM, Esqu re I.D. No. 27763 Katie J. Maxwell, Esquire I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Motion for Preliminary Injunction was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: David J. Raphael, Esquire Michelle J. Thorp, Esquire 325 Walnut Street Carlisle, PA 17013 MARTSON LAW OFFICES By Dated: 6 // r� o art. Price Ten East High Street Carlisle, PA 17013 (717) 243-3341 C. Grainger Bowman ' PA Attorney I.D. No. 15706 I i# A 24 K&L GATES LLP � 17 North Second Street, 18th Floor "CU MBERLA N D Co)14 Harrisburg, PA 17101-1507 PENNSYLVIANIA T: 717-231-4500 F: 717-231-4501 SHANNON F. LEFFLER and IN THE COURT OF COMMON PLEAS OF DAVID W. LEFFLER CUMBERLAND COUNTY, PAUL F. ORR and PENNSYLVANIA DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, NO. 14-3683 CIVIL TERM Plaintiffs V. DAVID J. RAPHAEL and MICHELLE J. THORP, Defendants ENTRY OF APPEARANCE Kindly enter the appearance of C. Grainger Bowman of the law firm of K&L Gates LLP as counsel for Defendants David J. Raphael and Michelle J. Thorp in the above matter. Respectfully submitted, K&L GATE LLP By: C. rainger Bo+a Attorney I.D. No. 06 17 North Third Street, 18th Floor Harrisburg, PA 17101-1507 T: (717) 231-4500 F: (717) 231-4501 Attorneys for Defendants David J. Raphael and Michelle J. Thorp. Dated: June 23, 2014 HA-295596 v1 CERTIFICATE OF SERVICE I hereby certify that on June 23, 2014, I caused a copy of the foregoing Entry of Appearance to be served on the following by first class mail, postage prepaid: Ivo V. Otto, III, Esquire Katie J: Maxwell, Esquire Martson Law Offices Ten East High Street Carlisle, PA 17013 Grainger o , Esquire 1 SHANNON F. LEFFLER and DAVID W. LEFFLER, PAUL F. ORR and DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW DAVID J. RAPHAEL and MICHELLE J. THORP, Defendants : NO. 14 — 3683 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 1st day of July, 2014, upon consideration of Plaintiffs' Motion for Preliminary Injunction, a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE one week prior to a hearing scheduled for Wednesday, August 6, 2014, at 3:00 p.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, 6)?,/c.0— Chrigtylee L. Peck, J. vo V. Otto, Esq. Katie J. Maxwell, Esq. Attorneys for Plaintiff /David J. Raphael, Esq. Michelle J. Thorp, Esq. 325 Walnut Street Carlisle, PA 17013 Defendants :rc Copt'Es "t�« F:\FILES\Clients\12086 Leffler (Edwards)\12086.3 construction Loan Graham St\12086.3.attomey acceptance of service.wpd Ivo V. Otto, III, Esquire Attorney I.D. No. 27763 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff THE: Pl?OtHONO 2014 JUL -7 C��gER F, �' 03 PENNSYLVANIA AND. COUNT OTTO GILROY & FALLER SHANNON F. LEFFLER and DAVID W. LEFFLER, PAUL F. ORR and DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, Plaintiffs v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14 - 3 (0 63 CIVIL TERM DAVID J. RAPHAEL and MICHELLE J. : THORP, Defendants ATTORNEY'S ACCEPTANCE OF SERVICE I, C. Grainger Bowman, Esquire, attorney for David J. Raphael and Michelle J. Thorp in the above -captioned action, hereby accept service of the Complaint in Declaratory Judgment and Motion for Preliminary Injunction in the above action on July 3 , 2014, on their behalf and certify that I am authorized to do so. Date: July 3, 2014 K&J RTES By� A��amik C. Grainger Bowm. ` - squire 17 North Second S , .18th Floor Harrisburg, PA 17101-1507 (717) 231.4500 Attorney for Defendants 4. CERTIFICATE OF SERVICE I hereby certify that on July 3, 2014, I caused a copy of the foregoing Attorney's Acceptance of Service to be served on the following by first class mail, postage prepaid: Ivo V. Otto, III, Esquire Katie J. Maxwell, Esquire Martson Law Offices Ten East High Street Carlisle, PA 17013 1 C. Grainger o , Esquire ',LED -OFFICE OF THE PROTHONOTARY 2014 JUL 23 PM t: 20 CUMBERLAND COUNTY PENNSYLVANIA C. Grainger Bowman PA Attorney I.D. No. 15706 K&L GATES LLP 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 T: 717-231-4500 F: 717-231-4501 SHANNON F. LEFFLER and IN THE COURT OF COMMON PLEAS OF DAVID W. LEFFLER, CUMBERLAND COUNTY, PAUL F. ORR and PENNSYLVANIA DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, NO. 14-3683 CIVIL TERM Plaintiffs v. DAVID J. RAPHAEL and MICHELLE J. THORP, Defendants ANSWER TO COMPLAINT FOR DECLARATORY JUDGMENT AND NOW come Defendants David J. Raphael and Michele J. Thorp ("Defendants") by and through their attorneys K&L GATES LLP and submit this Answer to Complaint for Declaratory Judgment as follows: 1. Admitted. 0 2. Defendants, after reasonable investigation, are without knowledge or information sufficient to form a belief as to the truth of the allegations, and the said allegations are therefore HA -295577 vi deemed denied and placed in issue. Strict proof thereof is demanded at the time of trial, if relevant. 3. Admitted. 4. Defendants, after reasonable investigation, are without knowledge or information sufficient to form a belief as to the truth of the allegations, and the said allegations are therefore deemed denied and placed in issue. Strict proof thereof is demanded at the time of trial, if relevant. 5. Admitted. 6. Defendants, after reasonable investigation, are without knowledge or information sufficient to form a belief as to the truth of the allegations, and the said allegations are therefore deemed denied and placed in issue. Strict proof thereof is demanded at the time of trial, if relevant. 7 Admitted: However, the correct spelling of Defendant Thorp is Michele J. Thorp. 8. Admitted. 9. Denied as stated, and as a conclusion of law. The terms of the Easement Agreement speak for themselves, and Defendants deny any restatement or characterization of the Easement Agreement. 10. Denied as stated, and as a conclusion of law. The terms of the Easement Agreement speak for themselves, and Defendants deny any restatement or characterization of the Easement Agreement. Further denied, in that the terms of the Easement Agreement also address 2 the ownership of interests in the land, that is, Defendants enjoy fee simple ownership of the real estate in dispute, subject to the terms of the Easement Agreement. 11. Denied as stated, and as a conclusion of law. The terms of the Easement Agreement speak for themselves, and Defendants deny any restatement or characterization of the Easement Agreement. Further denied, in that the terms of the Easement Agreement address the ownership of interests in the land, that is, Defendants enjoy fee simple ownership of the real estate in dispute, subject to the terms of the Easement Agreement. 12. Denied as stated, and as a conclusion of law. The terms of the Easement Agreement speak for themselves, and Defendants deny any restatement or characterization of the Easement Agreement. Further denied, in that the terms of the Easement Agreement address the ownership of interests in the land, that is, Defendants enjoy fee simple ownership of the real estate in dispute, subject to the terms of the Easement Agreement. 13. Admitted. 14. Admitted. 15. Admitted. 16. Denied as stated. The Easement Agreement must be read in its entirety, and Lefflers' recitation of one paragraph is insufficient to re -state what the rights of the parties subject to the Easement Agreement are. Further, the Easement Agreement speaks for itself. 17. Admitted that Defendants have maintained the gate, because Defendants own the gate. The Easement Agreement speaks for itself. 18. Denied as a conclusion of law. 3 19. Admitted that Lefflers are constructing a house. Denied that Lefflers have received consent or approval from Defendants to use the easement. Further, Lefflers have used the easement improperly and beyond the scope of the rights of the Easement Agreement, by directing heavy construction equipment on and through the easement, causing misuse and damage to the easement. Defendants reserve the right to answer further, in order to discover what additional improper uses may have been made to the easement. 20. Admitted that Lefflers' improper use of the easement has caused damage to the easement and to the gate, inter alia. Defendants do not have confidence that Lefflers will repair the easement and gate properly, and Lefflers have not provided to Defendants a proposal for repair on account of the damage done by Lefflers or their agents. 21. Denied as stated. Defendant Raphael initiated the contact with Lefflers after Lefflers commenced the referenced improper use of the easement. At all times, Lefflers asserted a "right" to use the easement for construction purposes, and at all times Defendants disputed the asserted "right." At no time prior to the Lefflers' improper use of the easement did Lefflers contact Defendants Raphael or Thorp to seek consent. 22. Denied as stated. Defendants have always asserted their rights as defined by the Easement Agreement. The terms of the Easement Agreement have permitted Defendants to assert that Lefflers have no "right" to purportedly use the easement by running construction equipment on the paved portion of the easement. No consent was given to Lefflers. By way of further answer, Lefflers have access to their construction site on the Graham Street frontage of their property by way of a curb cut plus a contractor -rigged ramp over the curb on Graham 4 Street. Lefflers' demands for the use of the easement for construction equipment are not merely improper and abusing the easement, but also unnecessary and dangerous. 23. Denied as stated. On April 4, 2014, Defendant Thorp, consistent with the Defendants' position stated above, denied access. Lefflers called the Borough of Carlisle Police Department. Contrary to Defendant Thorp's wishes, Lefflers' agents caused Defendant Thorp to feel intimidated, and ultimately, that intimidation led to access, with Thorp stating that Lefflers' agents were acting at their own risk and would be responsible for damages. This was not a satisfactory solution to Defendant Thorp or to the problem. Lefflers have continued to improperly use the easement and have continued to cause further damage. 24. Denied as stated. Defendants Raphael and Thorp have closed and latched the gate, as is their right for the gate which they own, and over real estate which they own in fee simple, subject to the Easement Agreement. The Easement Agreement does not prohibit the Defendants from closing and latching the gate. The gate has not been locked. 25. Denied as stated. The Easement Agreement speaks for itself. 26. Defendants, after reasonable investigation, are without knowledge or information sufficient to form a belief as to the truth of the allegations, and the said allegations are therefore deemed denied and placed in issue. Strict proof thereof is demanded at the time of trial, if relevant. 27. Denied as stated. Defendants have only asserted rights consistent with the Easement Agreement, which speaks for itself. 5 28. Defendants, after reasonable investigation, are without knowledge or information sufficient to form a belief as to the truth of the allegations, and the said allegations are therefore deemed denied and placed in issue. Strict proof thereof is demanded at the time of trial, if relevant. 29. Defendants, after reasonable investigation, are without knowledge or information sufficient to form a belief as to the truth of the allegations, and the said allegations are therefore deemed denied and placed in issue. Strict proof thereof is demanded at the time of trial, if relevant. NEW MATTER 30. Plaintiffs do not state a claim upon which relief may be granted. The Easement Agreement speaks for itself and does not confer upon the Plaintiffs the rights or the relief that they seek. 31. Defendants' position and actions are based entirely on the rights conferred by the Easement Agreement, all of which will be more particularly set forth in pleadings and motions before the Court. 32. Defendants' position and actions are based entirely on the duties burdening all of the Defendants (Lefflers, Boyle and Jamieson, and Orrs) set forth in the Easement Agreement, all of which will be more particularly set forth in pleadings and motions before the Court. 33. Defendants are the owners in fee simple of the real estate over which Lefflers seek to run construction equipment, and in which Lefflers and their contractors have caused damage. 6 34. Defendants are the owners in fee simple of the real estate over which Lefflers seek to claim certain rights, but Lefflers claim rights not set forth in the Easement Agreement. Lefflers admit to causing damage, but Lefflers have not offered or delivered to Defendants any schedule or plan of repair of all damage done to the property of Defendants. Lefflers have unclean hands. 35. Defendants are the owners of the gate and owners in fee simple of the real estate under the gate. The gate and its underlying real estate have been owned, possessed, and maintained by Defendants, and always subject to the interests in land conveyed by the Easement Agreement. Defendants have not taken any action inconsistent with the interests of the other parties to the Easement Agreement. Lefflers or their agents have damaged the gate, and Lefflers have not offered or delivered to Defendants any schedule or plan of repair of all damage done to the gate of Defendants. Lefflers have unclean hands. 36. The Defendants Lefflers, Boyle and Jamieson, and Orrs do not have clean hands, and are not entitled to the judicial relief sought under the doctrine of unclean hands. That is, there are duties under the Easement Agreement that have not been fulfilled by the named Defendants. These include, but are not limited to: a. Damage to the easement has been caused by some or all of the Defendants, which has not been repaired, and for which no plan of repair has been forwarded to Defendants. 7 b. The latches and the hardware to the gate have been damaged by some or all of the Defendants, and have not been repaired, and for which no plan of repair, has been forwarded to Defendants. c. There has not been an obstruction constructed at the northern end of the easement's terminus, contrary to the Easement Agreement. d. Lighting has not been installed and maintained by some or all of the Defendants, contrary to the Easement Agreement. 37. An action in declaratory judgment does not entitle Plaintiffs to preliminary or permanent injunctive relief as a matter of law. 38. Defendants' rights, title and interests in the Easement Agreement are interests in the land itself and are covenants which run with the land. 39. Defendants are entitled as a matter of law to Plaintiffs' repair of the fence and the gate at Plaintiffs' expense. 40. Defendants' are entitled as a matter of law to close the gate as Defendants desire to do so, without regard to the Plaintiffs' claims that Defendants may not do so. Defendants' exercise of that right to close will not interfere with Plaintiffs' right to personal and motor vehicle (not construction equipment) use of the easement as described in the Easement Agreement. WHEREFORE, Defendants Raphael and Thorp demand that the Plaintiffs' Complaint be dismissed in its entirety, and further that the Court enter a declaratory judgment that: 8 a. Defendants are the fee simple owners of the estate of land in dispute, subject only to the terms of the Easement Agreement. b. Under the Easement Agreement, all of Defendants' interests run with the land, including but not limited to the right to use the easement for personal and vehicular traffic and the right to use and close (not lock) the gate at Defendants' will. t c. Defendants are entitled to be reimbursed for all damages to the easement and all damages to the gate, and Defendants shall not bear any costs for such damages. The reimbursement for repairs shall be such that the easement and gate will be repaired from its current damaged condition. The repair will also be to such a specification that the pave portion of the easement will not fail in the future. Toward that end, Defendants shall be entitled to receive, by such a date as directed by the Court, from Defendants a repair specification and time schedule, which shall be subject to the Defendants' approval. The repair specification and time schedule shall be all at the expense of the Plaintiffs, and not at the expense of the Defendants. The court shall retain jurisdiction until Defendants notify the Court by praecipe that the repairs are complete and acceptable. d. A northern obstruction shall be constructed by Lefflers. e. Pole lighting shall be installed and operated by the Plaintiffs at each of their respective properties. COUNTERCLAIM (ACTION IN TRESPASS CAUSING PROPERTY DAMAGE) 1. Counterclaim-Plaintiffs are David Raphael and Michele J. Thorp ("Counterclaim Plaintiffs") are adult individuals residing at 325 Walnut Street, Carlisle PA. 2. Defendants are Shannon F. Leffler and David W. Leffler ("Lefflers"), adult individuals, Plaintiffs in the within action for declaratory judgment. They reside at the location alleged in their Complaint in the instant action. 3. Lefflers have continuously from early in 2014 down to the present date committed the act of trespass upon the real property of Counterclaim Plaintiffs, specifically on the paved portions of property described in an Easement Agreement (and adjacent thereto). Further as to the act of trespass, Lefflers have intentionally entered upon, or directed their agents to enter upon, the real property of Counterclaim Plaintiffs without privilege or consent of Counterclaim Plaintiffs, for the purpose of using heavy construction equipment to travel upon the paved area of the easement, and among other damages, Lefflers or their agents have damaged the pavement, damaged the subcourses of the pavement and the subbase under the pavement, damaged the fence and or gate on the easement, the edge of Counterclaim Plaintiffs' driveway (perpendicular to the pave portion of the easement), and otherwise improperly used the paved area, all of which are inconsistent with the Easement Agreement and the property rights of the Counterclaim Plaintiffs. 4. Counterclaim Plaintiffs own all right, title and interest to the real property at 325 Walnut Street, Carlisle PA (including but not limited to ownership rights, possessory rights and the right to immediate possession at the time of entry), which it purchased from Dr. Rodney B. 10 Fritchley and Karen S. Fritchley ("Fritchleys"), the predecessors in title to the Counterclaim Plaintiffs. As a part of the conveyance from Fritchleys to Counterclaim Plaintiffs, Counterclaim Plaintiffs were granted title to the real estate in fee simple, subject to the Easement Agreement, and as such owned the real estate with all of the rights and privileges associated with the described ownership. 5. Neither Lefflers nor the agents of Lefflers are entitled to use the easement in the manner described in Paragraph 3 above, because their actual use is inconsistent with the property rights of Counterclaim Plaintiffs and are inconsistent with the Easement Agreement. Lefflers' or their agents' use has resulted in actual damages to Counterclaim Plaintiffs for which no reimbursement or repair has been made to Counterclaim Plaintiffs by the Lefflers. 6. The alleged trespass is continuing. 7. Counterclaim Plaintiffs have suffered damages to the paved portion of the easement and the fence and the gate and other areas on account of the trespass of the Lefflers, in an amount in excess of $50,000. WHEREFORE, Counterclaim Plaintiffs Raphael and Thorp demand that the Defendant Lefflers be held liable for damages on account of the damages for a sum in excess of $50,000. Counterclaim Plaintiffs further demand that the Lefflers be enjoined from further improper use of the real property of Counterclaim Plaintiffs. 11 K& GAT S LLP . Grainger Bow PA I.D. #15706 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 (717) 231-4500 (717) 231-4501 (fax) grainger.bowman@klgates.com Date: July 23, 2014 Attorneys for Defendants 12 VERIFICATION I, David J. Raphael, hereby verify that the averments of fact set forth in the within Answer to Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities. CERTIFICATE OF SERVICE I hereby certify that on July 23, 2014, I caused a copy of the foregoing Answer to Complaint for Declaratory Judgment, New Matter and Counterclaim to be served on the following by first class mail, postage prepaid: Ivo V. Otto, III, Esquire Katie J. Maxwell; Esquire Martson Law Offices Ten East High Street Carlisle, PA 17013 C. Grainger Bo squire SHANNON F. LEFFLER and DAVID W. LEFFLER, PAUL F. ORR and DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION – LAW DAVID J. RAPHAEL and MICHELLE J. THORP, Defendants : NO. 14 – 3683 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 24th day of July, 2014, upon agreement of counsel, the hearing previously scheduled for August 6, 2014, is rescheduled to Thursday, August 21, 2014, at 1:30 p.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. THE previously -issued Rule is returnable one week prior to the rescheduled hearing. BY THE COURT, Christ lee L. Peck, J. ✓vo V. Otto, Esq. Katie J. Maxwell, Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Plaintiff ,....Grainger Bowman, Esq. 17 North Third Street, 18th Floor Harrisburg, PA 17101-1507 Attorney for Defendants :rc Coptks F:\FILES\Clients\12086 Leffler (Edwards)\12086.3 construction Loan Graham St\12086.3.responsetonewmatter.wpd Ivo V. Otto, III, Esquire Attorney I.D. No. 27763 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff L. i,' `: THE. t'k�OTHOhu Ir '1' 20I4 AUG 12 AM I I: 47 CUMBERLAND COUNTY PENNSYLVANIA SHANNON F. LEFFLER and DAVID W. LEFFLER, PAUL F. ORR and DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, Plaintiffs v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14 -3683 CIVIL TERM DAVID J. RAPHAEL and MICHELLE J. : THORP, Defendants PLAINTIFFS' RESPONSE TO DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW, come the Plaintiffs, by and through their attorneys, MARTSON LAW OFFICES, and hereby respond to Defendants' Answer with New Matter and Counterclaim as follows: ANSWER TO NEW MATTER 30. Denied as a conclusion of law to which no response is required. 31. Denied. After reasonable investigation, Answering Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph. 32. Denied. After reasonable investigation, Answering Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph. 33. Admitted in part and denied in part. It is admitted that Defendant's own a portion of the real estate subject to the Easement Agreement. However, it is denied that Lefflers and/or contractors have caused damage to the alley. 34. Denied as a conclusion of law to which no response is required. . 35. Denied as a conclusion of law to which no response is required. To the extent that a response is required, Paragraph 8 of the Easement Agreement expressly states that, "[t]he right to construct and maintain" the gate was Personal to Fritchley. Moreover, paragraph 8 also states that, "[n]o other party [besides Fritchley] shall have any obligation to construct or maintain the aforesaid gate." 36 (a-d).Denied as a conclusion of law to which no response is required. 37. Denied as a conclusion of law to which no response is required. 38. Denied as a conclusion of law to which no response is required. 39. Denied as a conclusion of law to which no response is required. By way of further response, paragraph 8 of the Easement Agreement expressly states that, "[t]he right to construct and maintain" the gate was Personal to Fritchley. Furthermore, paragraph 8 also states that, "[n]o other party [besides Fritchley] shall have any obligation to construct or maintain the aforesaid gate." 40. Denied as a conclusion of law to which no response is required. WHEREFORE, Plaintiffs respectfully request this Honorable Court to strike and dismiss Defendant's New Matter. ANSWER TO COUNTERCLAIM 1. Admitted. 2. Admitted. 3. Denied as a conclusion of law to which no response is required. 4. Denied. After reasonable investigation, Answering Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph of Defendants' Answer with New Matter and Counterclaim and, therefore, deny the same and demand strict proof thereof at trial. 5. Denied as a conclusion of law to which no response is required. 6. Denied as a conclusion of law to which no response is required. 7. Denied as a conclusion of law to which no response is required. After reasonable investigation, Plaintiff Lefflers are without knowledge or information sufficient to form a belief as to the truth of the averments in this paragraph of Defendants' Answer with New Matter and Counterclaim and, therefore, deny the same and demand strict proof thereof at trial. WHEREFORE, Plaintiffs demand judgment in their favor against Defendants as set forth in Plaintiffs' Complaint for Declaratory Judgment. MARTSON LAW OFFICES By: (6ZtA'9 /(Gt.iet) Ivo V. Otto, IIIEsquire I.D. No. 27763 Katie J. Maxwell, Esquire I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Date: g•(Z /t ll VERIFICATION The foregoing Response to Defendant's Answer with New Matter and Counterclaim is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. -4-- David W. Leffler C:Users\kjm\AppData\Local\MNicrosoft\Windows\Temporary Internet Files \Content.Outlook\6DR250Z3\I2086 3 responsetonewmatter.wpd VERIFICATION The foregoing Response to Defendant's Answer with New Matter and Counterclaim is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Shannon F. Lef er C:\Users'J m\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\6DR250Z3\12086 3 responsetonewmattecwpd CERTIFICATE OF SERVICE I, Katie J. Maxwell, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Response to Defendant's Answer with New Matter and Counterclaim was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: By Dated: F ( / y C. Grainger Bowman K&L GATES LLP 17 North Second Street, 18`h Floor Harrisburg, PA 17101-1507 MARTSON LAW OFFICES K ;, J. Maxwel 10 East High Street Carlisle, PA 17013 (717) 243-3341 C. Grainger Bowman PA Attorney I.D. No. 15706 K&L GATES LLP 17 North Second Street, 18t Floor Harrisburg, PA 17101-1507 T: 717-231-4500 F: 717-231-4501 SHANNON F. LEFFLER and DAVID W. LEFFLER, PAUL F. ORR and DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, Plaintiffs v. DAVID J. RAPHAEL and MICHELE J. THORP, Defendants WED -OFFICE ,t" THE PPOTH ONNOT 2014 AtiG 14 P1 52 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OE COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 14-3683 CIVIL TERM DEFENDANTS' ANSWER TO MOTION FOR PRELIMINARY INJUNCTION AND REPLY TO RULE TO SHOW CAUSE NOW COME Defendants David J. Raphael and Michele J. Thorp ("Defendants") by and through their attorneys K&L GATES LLP and submit this Answer to the Motion for Preliminary Injunction as follows: 1. Admitted that Plaintiffs' Complaint for Declaratory Judgment was filed and subsequently service was accepted by Defendant David J. Raphael. Defendants do not admit any of the averments of the Complaint therein. HA -296906 vi 2. Denied as stated. The Lefflers are constructing a home on Graham Street, not Walnut Street. 3. Denied as stated. The interest in land which is a part of this dispute is an easement, not an Alley. The Lefflers' directions to their contractors to use the easement have been given without Lefflers seeking the approval or consent of Defendants. (a) Defendants own, in fee simple, all of the real property conveyed to them by their predecessor in title (Rodney B. Fritchley and Karen S. Fritchley). Defendants' fee simple ownership of all of this real property includes Defendants' ownership of the strip of land (approximately 16 feet in width by approximately 280 feet in length), which strip is subject to an Easement Agreement. The Easement Agreement does not contain any reference to an Alley. The Easement Agreement (and the bundle of rights and duties contained therein) speaks for itself • (b) The rights and duties under the Easement Agreement provide, inter alia (emphasis not in original, but referenced in bold for attention): (i) In paragraph 1: "That DEVELOPERS [WM. A KRAMER 2ND and WILLIAM E. HOFFMAN], HUMER [JAMES R. HUMER and LORRAINE H. HUMER], and FRITCHLEY [DR. RODNEY.B. FRITCHLEY and KAREN S. FRITCHLEY] do by these presents grant unto FALLER [GEORGE B. FALLER, Executor] ANDREWS [BRUCE R. ANDREWS and MARGORIE ANDREWS], their successors, personal representatives, heirs and assigns the prepetual (sic), irrevocable right and easement over the following described tract of land [the 16' by 280' strip of land] to permit ingress and egress for persons and motor 2 vehicles to the tracts of land owned by them to be used in common with the owners of lands abutting said easement." (ii) In paragraph 3: "That FALLER and ANDREWS agree that they shall share equally the expense of improving, maintaining and repairing the aforesaid easement from the Northern edge of the driveway to be constructed by FRITCHLEY in a Northern direction to the Northern terminus thereof, except that the parties whose wrongful acts or negligence, or those of his family or invited guests, causes damage to the easement shall be solely responsible for the expense necessary to restore same to its condition prior to such damage." (iii) In paragraph 8: "It is agreed that FRITCHLEY may construct and maintain across the easement herein provided a gate of such size and opening to permit passage of a trash truck to and from the premises of ANDREWS. Such gate to be constructed at a point on said easement as an extension of the Northern property line of FRITCHLEY. The gate shall not be locked unless by ANDREWS but shall be kept closed when not in use. No other party shall have any obligation to construct or maintain the aforesaid gate. The right to construct and maintain said gate shall be personal to FRITCHLEY." (iv) In paragraph 9: "That the grants, easement, covenants and declarations herein made shall be deemed to be covenants running with the land and shall bind and inure to the benefit of the owners of the FALLER and ANDREWS tracts and the tracts about to be purchased by FRITCHLEY and HUMER from DEVELOPERS, their heirs, personal representatives and assigns and successors in title." (c) Plaintiffs' interests in the Easement Agreement are limited interests. Defendants submit that Plaintiffs' use of the strip of land for construction -grade equipment is an abuse of its rights to use the strip for "persons" and "motor vehicles." (d) Plaintiffs have never sought the approval or consent of Defendants for Plaintiffs' contractors (or any contractors, materialmen or suppliers) to use the strip for the traffic of construction -grade equipment. (e) Plaintiffs' directions for contractors to use the strip for the traffic of construction -grade equipment have already caused the "breaking -up" of the asphalt course over the strip of land and other portions of the strip. Plaintiffs' directions for contractors to use the strip for the traffic of construction -grade equipment have already caused property damage to the gate. Further, portions of the gate allowing the gate to close and remain closed have been removed or stolen since this dispute began. (f) Defendants are the successors in title to FRITCHLEY. FRITCHLEY, in fact, constructed and maintained the gate during his ownership of the real property. The gate (and the fence constructed by FRITCHLEY to the west of the gate) define the Northern boundary between FRITCHLEY and LEFFLER. (g) Defendants purchased their real estate from FRITCHLEY, by grant and conveyance, including the fully constructed gate, the fully constructed fence and all of the real property interests of FRITCHLEY (including any rights defined in the Easement Agreement). (h) Defendants have maintained the gate since their purchase of the real property. Defendants have periodically closed the gate (as per the terms of paragraph 8 4 of the Easement Agreement) to maintain the Northern boundary line of Defendants' real property since they have owned their residence on Walnut Street. (i) Defendants have never interfered with the uses by Plaintiffs which are permitted by the Easement Agreement, that is, Defendants have not interfered with the Plaintiffs' "ingress and egress for persons and motor vehicles to the tracts of land" owned by them. 4. Denied as stated. The easement is defined by the Easement Agreement. The easement is perpendicular to the Defendants' driveway. 5. Admitted that Defendants have repeatedly contacted counsel for Plaintiffs. This contact was for the purpose of informing them that Plaintiffs have no right to permit construction -grade equipment to access the strip or otherwise use the strip for construction purposes. Defendants have further requested from counsel for Plaintiffs a schedule to repair damages. Defendants have not received a response from Plaintiffs' counsel. 6. Denied as stated. It is admitted that on April 4, 2014, Lefflers' contractors, purportedly seeking access to the strip, were denied access to the strip for at least two reasons: (1) Lefflers' contractors had no right to use the strip for construction -grade equipment, and (2) Defendants wanted to avoid further damage to the strip. Otherwise, the averments of paragraph 6 are denied as stated. Lefflers called the Borough of Carlisle Police Department. Contrary to Defendant Thorp's wishes, Lefflers' agents caused Defendant Thorp to feel intimidated, and ultimately, that intimidation led to access, with Thorp stating that Lefflers' agents were acting at their own risk and would be responsible for damages. This was not a satisfactory solution to Defendant Thorp or to the problem. Lefflers have continued to improperly use the easement and have continued to cause further damage. 5 7. Denied as stated. On April 5, 2014, Defendants used the existing wooden latch to close the gate. The wooden latch is not a lock, but a method to keep the gate closed (See Easement Agreement, paragraph 8). The metal hardware on the bottom of the gate (left side) has been removed by persons other than Defendants, and it is not known what happened to the hardware. However, contrary to the averments of Plaintiffs, the gate could be opened by lifting the wooden latch. This did not cause any holder of easement rights any loss of access. On or after April 5, Defendants' wooden latch was unbolted and stolen. 8. Denied, in that Defendants have no knowledge of what Jamieson did on April 5, 2014. 9. Denied. Lefflers have the ability to use the front yard of their house to provide access to construction -grade equipment (1) through a curb -cut which exists in the front of the house and (2) through an improvised ramp access over a second curb area about 50 feet away from the referenced curb -cut. Lefflers have no right to abuse the limited easement interests or to exceed the limits of use contained in the Easement Agreement. Defendants have no duty to acquiesce in the Lefflers' abuse of the Easement Agreement, but instead Defendants are entitled to protect their property interests as defined in the Easement Agreement. Further, Lefflers have access to their property from their entire frontage on Graham Street (well over 100 feet) for their construction equipment access. 10. Denied. Defendants have not physically barred any holder of easement rights from the proper use of the strip of land. Further, Defendants have not locked the gate. However, Defendants had, at times, used the wooden latch to keep the gate closed when not in use, as permitted by the Easement Agreement, until it was stolen. 11. Admitted, but Defendants have not denied Orrs their easement rights. 6 12. Denied. (a) The improper use of the strip of land by the construction -grade equipment, as directed by Plaintiff Lefflers, has damaged the asphalt wearing course of the easement, and has damaged the gate, which is owned and maintained by Defendants. (b) The improper use of the strip of land by the construction -grade equipment, as directed by Plaintiff Lefflers, will cause continuing damage to the property of Defendants. (c) Plaintiffs enter the court with unclean hands on account of the damage already done to the strip, and on account of Plaintiffs' unabated use of the strip which continues to cause damage. Further, Plaintiffs made no prior attempt to contact, or to seek consent and approval from, the Defendants for the use of the strip by construction - grade equipment. (d) Lefflers have Graham Street access to their property, and they have no need to abuse the strip of land with construction -grade equipment. (e) Plaintiffs have admitted to damaging portions of the easement. Defendants remain opposed to the relief sought by Plaintiffs, however, a bond is absolutely necessary to protect Defendants. Further, no proposal for repair of the damage has been offered by Plaintiffs. 13. Denied. Defendants do not concur in the Motion. Defendants are now represented by the undersigned counsel. NEW MATTER 14. The Motion for Preliminary Injunction filed by Plaintiffs is not a remedy authorized under the Pennsylvania Rules of Civil Procedure providing for a Complaint for 7 Declaratory Judgment. This Court has no power under the Rules to enter an injunction where the Rules do not permit the relief sought and the underlying Complaint does not seek injunctive relief of any kind. 15. The Plaintiffs are barred from relief under the doctrine of unclean hands. 16. The Plaintiffs' right to relief is not clear. 17. Lefflers have not suffered immediate and irreparable harm, in that Lefflers have access to their house for construction-grade equipment from Graham Street, and have in fact been using Graham Street for such access during months of construction. 18. Any harm regarding access has been self-inflicted harm. 19. The status quo ante is not best preserved by granting the relief sought by Plaintiffs. 20. Plaintiffs seek equitable relief after acknowledging that they have already damaged Defendants' easement. 21. Plaintiffs are not complying with the express terms of the Easement Agreement in paragraph 5 regarding the requirement to erect pole lamps for lighting. 22. Plaintiffs are not complying with the express terms of the Easement Agreement in paragraph 7 regarding the requirement to construct an obstruction on the northern terminus of the easement. 23. Plaintiffs are not complying with the express terms of the Easement Agreement in paragraph 3 regarding the requirement to improve, maintain and repair the easement. 8 WHEREFORE, Defendants request that the Plaintiffs' Motion for Preliminary Injunction be denied in its entirety. Date: August 14, 2014 9 K& GATES LLP C. Grainger Bowman PA I.D. #15706 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 (717) 231-4500 (717) 231-4501 (fax) grainger.bowman@klgates.com Attorneys for Defendants VERIFICATION I, David J. Raphael, hereby verify that the averments of fact set forth in the within Answer to Motion for Preliminary Injunction and Reply to Rule to Show Cause are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities. David J. Raphael Dated: August 14, 2014 CERTIFICATE OF SERVICE I hereby certify that on August 14, 2014, I caused a copy of the foregoing Answer to the Motion for Preliminary Injunction to be served on the following by first class mail, postage prepaid and also by electronic mail: Ivo V. Otto, III, Esquire Katie J. Maxwell, Esquire Martson Law Offices Ten East High Street Carlisle, PA 17013 1 C. Grainger Bo , Esquire SHANNON F. LEFFLER and IN THE COURT OF COMMON PLEAS OF DAVID W. LEFFLER, CUMBERLAND COUNTY, PENNSYLVANIA PAUL F. ORR and DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, Plaintiffs v. . CIVIL ACTION - LAW DAVID J. RAPHAEL and MICHELLE J. THORP, Defendants 14-3683 CIVIL TERM IN RE: MOTION FOR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 21st day of August, 2014, this being the time and place set for a hearing on a Motion for Preliminary Injunction, and following a hearing, this matter is deemed closed and the matter is taken under advisement. It is this Court's understanding that counsel on behalf of the Plaintiffs will file a memo of law with this Court within one week of the date of this Order. By the Court, I(AeL Chris ylee L. Peck, J. ✓ Katie J. Maxwell, Esquire For the Plaintiffs C3 ✓C. Grainger Bowman, Esquire - For the Defendants rn rn pcb cn[ y‹ L �t £S / 2AV-:. �" c Spl`� >-i L_ /17 GD T) SHANNON F. LEFFLER and DAVID W. LEFFLER, PAUL F. ORR and DARLENE G. ORR, THOMAS F. BOYLE and ELIZABETH J. JAMIESON, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW DAVID J. RAPHAEL and MICHELLE J. THORP, Defendants : NO. 14 — 3683 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION ORDER OF COURT AND NOW, this 8th day of September, 2014, upon consideration of Plaintiffs' Motion for Preliminary Injunction and following a hearing held on August 21, 2014, the Court finds that the Plaintiffs have not proven immediate and irreparable harm and, accordingly, the motion for preliminary injunction is denied. BY THE COURT, Christyl L. Peck, J. ..1To V. Otto, Esq. Katie J. Maxwell, Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Plaintiff ...Grainger Bowman, Es . 17 North Third Street, 1 8t Floor Harrisburg, PA 17101-1507 Attorney for Defendants :rc dc.3 Cesiflt&cL cevict C=7.