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HomeMy WebLinkAbout05-3246COMMONWEAL IH OF rErvnaTLVANIA COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. Q/J NOTICE OF APPEAL ,/; I 1/ M Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. NA OF APPELLANT 1 1 Q C Y DISI. NU. MAG. O01 - '?+? ?Of3E2T V IMAIUIL4V4F Llolt?l. AnfDEE rI ADDRESS OF APPELLANT S (L@E " C /? ?CITV T ? )O 41ILI STAnTE A ZIP CODE 1-7°11 I?ESTN 160 .. I,IT ' DATE OF JUDGMENT OGI 21 2 GO5 IN THE CASE OF (Plaintiff) RAs/-b1FC ?CQLIOIVIJ (Oafs tlaM) SI.LDtT1¢ " "'n") CV- ooooo95-05 This block will be signed ONLY when this notation is required under He. R.C.P.D.J. No. 10088. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. appellant was No. before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. Sgnalure of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon appellee(s), to file a complaint in this appeal Name of apps/lee(s) (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or attorney or agent RULE: To , appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 Signature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal, Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas No. , upon the District Justice designated therein on (date of service) , 20 ? by personal service ? by (certTed) {registered} rnail, sender's receipt attached hereto, and upon the appellee, (name) , or, , 20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , 20 Signature of ol8clal before whom affidavit was made Signatoro ofatliant Title of official My commission expires on _ 20 r q r) N .]FV? l• O Q ? Gpi'f TJ , -OM rsj -Dc) ym r-a G. CA b\ j AOPC 312A - 02 I t ?' In COMMONWEALTH OF PENNSYLVANIA r,oi IKITv nG. CUMBERLAW Mag. DIs1. N.,. 09-1-02 MDJ Name Hon. ROBERT V. MANLOVE Address 1901 STATE ST CAMP HILL, PA Teiephme. (717) 761-0583 17011-0000 ATTORNEY FOR PLAINTIFF : EDMUND J. BERGER ESQ 2104 MARKET ST CAMP HILL, PA 17011 THIS IS TO NOTIFY YOU THAT: Judgment: ® Judgment was entered for: NOTICE OF JUDGMENTRRANSCRIP1 CIVIL CASE PLAINTIFF: NAME and ADDRESS FKCQVOWN, BANDEE 2700 CHESTNUT ST CAMP HILL, PA 17011 L DEFENDANT: FKRBBS, JUDITH 36 S 27TH ST CAMP HILL, PA VS. NAME arcl ADDRESS 17011 L Docket No.: CV-0000095-OS Date Filed: 2/22/05 (Name) Wigan, mnrma ® Judgment was entered against: (Name) iuxma , 12hunim in the amount of $ Defendants are jointly and severally liable. 11 Damages will be assessed on: El This case dismissed without prejudice. Amount of Judgment Subject to F Attachment/42 Pa.C.S. § 8127 $ Portion of Judgment for physical damages arising out of residential lease $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTlrRANSCRIPT FORM WITH YOUR NOTICE. OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ... s Date Ma !$Zkdal Dlstrict.Judge r 71- I certify th t this is a tru o- f t ro s o nt4rrtng thedudgmerjt.' d {,.. rtf CJ? Date ` t a9 NMact'%t ialgistrictJudge on: (Date of Judgment) e/j? /n5 (Date & Time) Amount of Judgment Judgment Costs Interest on Judgment Attornev Fees Post Judgment Credits $ Post Judgment Costs $ ------------ Certified Judgment Total $ My commission expires first Monday of January, 2006. ,'Fr, $fiL AOPC315-05 T%sTB PRINTED: 6/21/05 9:52:27 AM : 1 :.. _ l ,., 5 T ({lam . Zz7 n> IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, vs. JUDITH KREBS, Plaintiff No: 05-3246 CIVIL TERM Defendant MOTION TO REINSTATE APPEAL Pursuant to Rule 1006 of the Rules of Civil Procedure for District Justices, Plaintiff respectfully requests that the Court reinstate the appeal stricken by the Prothonotary under Rule 1006. In support of this Motion, Plaintiff respectfully states as follows: 1. On June 27, 2005, Plaintiff filed a Notice of Appeal in the above- captioned matter with the Prothonotary of Cumberland'' County. 2. Service of the Notice of Appeal upon the District Justice and the Defendant, Judith Krebs, was made that date by certified mail. Signed receipts of the Notice of Appeal were obtained by the United States Postal Service from the District Justice on June 29, 2005 and by the Defendant, Judith Krebs on July 5, 2005. Copies of these registered receipts are attached as Exhibit A to this Motion 3. On July 18, 2005, Plaintiff served a Complaint with a Notice to Defend upon the Defendant Judith Krebs in accordance with the legal requirements to file a complaint within 20 days of the Notice of Appeal. Service of the Complaint was made by mail in accordance with the rules and contained a Certificate of Service. 4. On August 3, 2005, Defendant's counsel) filed a Praecipe to Dismiss this Appeal pursuant to Rule 1006 because Plaintiff failed to file Proof of Service of the Notice of Appeal within 10 days of filing the Notice of Appeal. Plaintiffs failure to file Proof of Service of the Notice of Appeal was an inadvertent oversight on the part of counsel and did not harm or prejudice Defendant's interest in this case since service was made as demonstrated by the certified mail receipts. Furthermore, a Certificate of Service was filed with respect to the Complaint which was served in accordance with the Rules. 6. Rule 1006 provides for reinstatement on good cause shown. The courts have held consistently for many years that this (procedural error is not prejudicial and the appeal should be reinstated. Woltcheck v. Gettel, 15 Pa. D&C 4th 583 (1992); Berry v. Sheaffer, 42 D&C Td 480, 483 (1986); Hyde v. Crialer, 10 Pa. D&C 3`d 769, 774 (1979). As the court stated in Hyde v. Crialer: The failure to file the proof of service in this situation places no additional burdens on the appellee or the court and to bar this appellant from proceeding with his appeal furthers none of the reasons for Rule 1005's requirements. Hyde v. Crialer, 10 Pa. D&C 3`d at 774. 2 7. No allegation has been made that the appeal or the notice was not timely filed or served in this case. In recognition of his oversight, counsel for Plaintiff is filing the Proof of Service on this date. 8. Pennsylvania Rule of Civil Procedure 126 provides that the court "may disregard any error or defect of any procedure which does not affect the substantial rights of the parties." Given that the Notice of Appeal was timely filed, and Defendant was served with the Notice of Appeal in a timely fashion, as evidenced by the certified mail receipt, the fact that Plaintiff did not file a Proof of Service within 10 days of filing the appeal does not affect the substantial rights of the parties. WHEREFORE, Plaintiff respectfully requests that the Appeal be reinstated and Defendant required to Answer the Complaint withiin the period prescribed by the rules. Respectfully August 8, 2005 Edmund J. Berger- Attorney I.D.:053407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tbemer0beraerlawfirm.net ¦ Complete Items 1, 2, and 3. Also complete A Item 4 if Restricted Delivery Is desired. r Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the beck of the mailpleoe, or on the front H space permits. 1. Article Addressed to: '?)66 er4 V. `IK?tn I die wag ? s}?? a-P ?J7sk. c?- D9 - I -b? 1ao1 s+6Ar s+ CDUnQ x)11 I PA nog, 2. Article ftmmwekw x:.005 0390 000:> tngr PS Form 3811, February 2004 Domestic Return Receipt 1-N-r540 D. Is delivery address different from Item 1? ? Yea H YES, enter delivery address below: ? No QOwtltied Midi ? Brass Mail 13 Regetaed ? Return Receipt for merchandise 13 Insured Melt ? C.O.D. 4. Reetdcred Delivery? fEzsa Fee) ? Yes Tent C. Date of Delivefy 0099/03 ¦ Complete Hems 1, 2, and 3. Also complete Hem 4 H Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can retum the card to you. It Attach this card to the beck of the mailpiece, or on the front if space permits. A. ? Agent 1. Article Addressed to. cam Au IPA Ocllq B. D. Is dailmy address dMerant from Item 1? ? Yea If YES, enter delivery address below: ? No 3. Service Type ? C tutted Mall ? Express Mail ? Registered 0 Return Receipt for Mere eules 0 Insured mail 0 C.O.D. 4. Restricted DellNa ? (Ekes Fee) p Yes 2. Article Nyymm (fl ? . anaNrAorir°jetiykld/e6iij PS Forth 3811, February 2004 Domestic Return Receipt 102595-024t-1540 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing documents, Motion to Reinstate Appeal and Proposed Order, upon the following person, in the manner indicated: VIA FIRST CLASS MAIL Peter J. Russo, Esq. 3800 Market Street Camp Hill, PA 17011 Date: August 8, 2005 Edmund J. Berger y ?;?: rp ro U f- ? D C- co O i _ r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN vs. JUDITH KREBS Plaintiff, No: 05-3246 CIVIL TERM Defendant JURY TRIAL DEMANDED 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 Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania Telephone Number 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar action dentro de los proximos veinte (20) dias despues de Is notificacion de esta Demands y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en Is Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Is advierte de que si usted falls de tomar action como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier sums de dinero reclamada en Is demands o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por Is Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. Si USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFVCINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania Telephone Number 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, No: 05-3246 CIVIL TERM Vs. JUDITH KREBS Defendant COMPLAINT IN A CIVIL ACTION Filed on behalf of: PLAINTIFF Counsel of Record for this party: Edmund J. Berger Attorney I.D. #53407 Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 (Phone) (717) 920-8901 (Fax) A. INTRODUCTION 1. Plaintiff, Randee McQuown, is the owner of, and resides at, 2700 Chestnut Street, Camp Hill, PA 17011. 2. Defendant, Judith Krebs, is the owner of, and resides at 36 S. 27th Street, Camp Hill, PA 17011. 3. Plaintiff and Defendant are neighbors. In particular, the back of Plaintiffs property and the left side of Defendant's property are adjacent to each other. A narrow concrete sidewalk is along the rear of Plaintiffs home. B. WATER NUISANCE CAUSED BY DEFENDANT'S CLOGGED GUTTERS 4. Defendant's roof on the left side of her house slants at a steep descent toward Plaintiffs house and, if the gutters along this roof are clogged, and/or if the gutters on the porch roof on the same side of the house become clogged, water from Defendant's roof falls on Plaintiff's property. 5. Beginning in approximately September 2003, Defendant's gutters (including the porch roof gutter) on the left side of her house became clogged with debris and failed to drain water from the roof, resulting in rainwater falling onto Plaintiffs property in significant quantities. 6. Plaintiff advised Defendant three times iin person of this drainage problem but Defendant failed to take any action. 7. On December 19, 2003, Plaintiff sent Defendant a letter advising her of the continuing drainage problem. Despite Plaintiffs letter, Defendant took no action to correct the problem. -1- 8. In July 2004, Plaintiff complained to the Camp Hill Borough Codes Officer regarding the continuing problem with water drainage from Defendant's property. During this time, a Borough official observed the drainage problem. As a result, on July 14, 2004, the Borough notified Defendant that this arrangement was in violation of the Camp Hill Borough Code Article III Section 154.9C., which states the following: Grading and drainage- All premises shall be graded and maintained so as to prevent the accumulation of stagnant water thereon or within any building or structure located thereon, and, further, so as to prevent erosion and drainage onto adjacent properties or into streets or public ways. 9. In his letter, the Camp Hill Borough Codes Compliance Official asked Defendant to take steps to correct this violation within the next seven (7) days. 10. Despite the notice from the Camp Hill Borough Codes Official, Defendant took no action to correct this situation until approximately September 1, 2004. 11. As a result of Defendant's actions, rainwater continuously fell on Plaintiffs property for an extended period of time, saturating the soil, causing moisture to migrate into the crawl space under Plaintiffs house, and resulting in damage to her property. In particular, the following damage resulted to Plaintiff's property: -2- a. The concrete walkway subsided with estimated costs of repair of $755; b. Moisture damage to the rear of Plaintiff's house caused cracking of plastering and paint at an estimated cost of repair of $500; C. Moisture damage to the rear of Plaintiff's house caused the growth of mold with an estimated cost of remediation of $5,356; d. Moisture damage to the rear of Plaintiffs house caused damage to carpeting, padding and floor insulation at a repair cost of $100. e. Erosion requires replacement of topsoil and replanting at an estimated cost of $250. f. Property maintained in basement storage and valued at $300 was destroyed. 12. Although Defendant's gutters were cleaned in September, 2004, Defendant's gutters are again overflowing onto Plaintiffs property and pose the risk of additional damage. C. 13. During the winter of 2003, Defendant failed to clear snow and ice off of the roof of her house despite a substantial buildup of snow and ice over a period of time. As a result, ice accumulated and a pied of ice slid off -3- Defendants roof resulting in a broken window at Plaintiff's home on February 22, 2003. 14. Plaintiff sent a written request to Defendant notifying her of the damage and requesting Defendant to have her insurance company contact her, but she failed to do anything. 15. Plaintiff was required to replace the window at a cost of $60. D. GROUND-BASED FLOODLIGHT NUISANCE 16. Beginning sometime prior to May 2004, Defendant installed a floodlight on the ground of her property which was directed toward Plaintiffs windows. The light was kept on all night, every night, beginning at some point prior to May 2004 and continues until the present. The floodlight was installed with indoor, non-permanent wiring with plastic over-connects, was propped against a brick and surrounded by debris from trees, i.e. hemlock needs, and wood mulch. Additionally, the unit used an extension cord which did not appear to be approved for outdoor use and plastic bags and duct tape appeared to cover connections to other cords. Plaintiff personally observed the floodlight smoking and lying face down on the ground at times. Additionally, because of the significant rainfall during the summer of 2004, it is believed that the fixture presented a risk of electrocution to those nearby. 17. The ground-based floodlight presented a risk of fire to the surrounding properties, including Plaintiffs property. Plaintiff asked Defendant to remove this light because of the hazard involved and its nuisance to Plaintiff. Despite Plaintiffs requests, including a brief written note to Defendant on July 12, -4- 2004, Defendant failed to remove the floodlight or to redirect the light from Plaintiffs home. 18. On July 15, 2004, Plaintiff filed a complaint with the Camp Hill Borough police concerning the situation with the ground-based floodlight. A police officer came to Plaintiffs home and confirmed that the floodlight shined into Plaintiff's bedroom window and the police officer left a note asking Defendant to contact police regarding this matter. Despite the police officer's request, Defendant took no action to remedy this situation. In August 2004, Plaintiff also noted the Borough Fire Department of her concern with respect to the risks presented by this floodlight. 19. Despite Plaintiffs complaints, Defendant has failed to take any action to remedy this situation. E. NUISANCE FROM FLOODLIGHTS INSTALLED IN MARCH 2005 20. In March, 2005, Defendant installed four motion detector floodlights just under the roof gutter at her home and within feet of Plaintiffs house and directed them in the direction of Plaintiffs bedroom windows. If Plaintiff opens her back door, or walks behind her house, these flood lights turn on and flood Plaintiffs home with very bright light. 21. Despite repeated requests to Defendant to remove said floodlights and to turn them off and/or redirect them, Defendant failed to do so. The shining of lights in such fashion is in direct violation of Borough ordinances. 22. Despite Plaintiff's requests, Defendant has failed to remove, turn-off or otherwise abate this nuisance. -5- F. NUISANCE FROM OVERGROWTH OF DEFENDANT'S TREE 23. For some time, a hemlock tree on Defe:ndant's property has extended over the property line between Plaintiff and Defendant. 24. Although Plaintiff requested that Defendant trim this tree back on several occasions or remove it if necessary to resolve this problem, Defendant failed to so trim the tree. 25. As a result, Defendant's tree has caused minor damage (a hole in a roof shingle) and has continuously left a significant amount of debris on Plaintiffs property, including small sticks, pine (hemlock) cones, and needles from the tree. This debris has often been infested with bugs, i.e. mites, and is contaminated with wooley adelgid and scales, diseases of hemlock trees. Plaintiff has had to clean this debris up on frequent occasions, causing annoyance and inconvenience. 26. In July 2000, Defendant constructed a fence, part of which rests on Plaintiffs property. 27. Despite Plaintiff's requests to have this fence removed from Plaintiffs property, Defendant has refused to remove the fence from Plaintiffs property. COUNT 1 - Nuisance 28. Paragraphs 1 through 24 are incorporated by reference into this Count. -6- 29. Defendant's unreasonable, unwarrantable and unlawful use of her property resulted in injury and damages to Plaintiff and her property as described above and in the following respects: a. By causing damage to Plaintiff's property; b. By interfering with Plaintiff's use and enjoyment of her property; C. By failing to correct the offending conditions when requested and after repeated requests, resulting in inconvenience, annoyance, and upset to plaintiff; d. By causing Plaintiff to incur costs of repair; e. By causing Plaintiff to expend time and effort to correct situations caused by Defendant's property without being compensated; f. By exposing Plaintiffs property to an increased risk of termite exposure; g. By exposing Plaintiff to an apparent risk of fire and/or electrocution, resulting in upset and annoyance; h. By interfering with Plaintiffs ability to sleep; By puffing Plaintiff in fear of fire and electric shock. 30. Defendant's actions in failing to clear her gutter despite Plaintiff's repeated requests, in maintaining an unsafe floodlight on her property which she knew distressed Plaintiff, in directing of floodlights toward Plaintiffs bedroom window despite Plaintiffs repeated requests to remove them, redirect them, -7- and/or turn them off, in failing to remove or trim back; a tree that she knew left a substantial amount of debris, including bug-and-disease-infested debris on Plaintiffs property, in ignoring notifications from Borough officials concerning these issues, were intentional and malicious acts designed to upset Plaintiff and to cause her annoyance and loss of enjoyment of her property. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $30,000, including both compensatory and punitive damages, plus interest and costs. COUNT 2 - TRESPASS 31. Paragraphs 1 through 31 are incorporated into this Count by reference. 32. Defendant's actions in constructing a fence on Plaintiffs property constitutes a continuing trespass on Plaintiffs property. 33. Defendant's trespassory actions are inappropriate interferences with Plaintiff's peaceful possession of her property and have caused Plaintiff substantial inconvenience, distress and discomfort. WHEREFORE, Plaintiff demands judgment against Defendant in an amount equal to $10 per day for such trespass for each day in the past two years, or $7,300, plus interest and costs. -g- COUNT 3 - INJUNCTIVE RELIEF 34. Paragraphs 1 through 34 are incorporated into this Count by reference. 35. Defendant's failure to keep the gutters on the left side of her house clear of debris is continuing in nature and the harm to Plaintiff's property will, therefore, continue unless Defendant is required by court order to maintain such gutters clear and free of debris. 36. Failure of Defendant to maintain her gutters in a clean state will result in irreparable harm to Plaintiff in that she will be unable to maintain this property free of such nuisance and will be required to bring a multiplicity of actions in order to obtain damages for such continuing offense. 37. Failure of Defendant to remove or turn off her floodlights will result in irreparable harm to Plaintiff through their ongoing interference with her use and enjoyment of her property and her continuing fear of a fire hazard. 38. Failure of Defendant to trim her hemlock tree back will result in irreparable harm to Plaintiff in that she will continue to, have the inconvenience and annoyance associated with cleaning this debris and potential infestation from bugs in such debris if it is not promptly cleaned. -9- 39. Plaintiff has a clear right to relief at law for each of the above- indicated nuisances. WHEREFORE, Plaintiff respectfully requests the following injunctive relief: A. Defendant be ordered to maintain her gutters in a state free of debris so that her gutters do riot become clogged and rainwater flows from Defendant's roof onto Plaintiff's property; B. Defendant be ordered to refrain from shining floodlights onto Plaintiff's property at any time, that any floodlights currently shining on Plaintiffs property be turned off or removed, and that any floodlights on Defendant's property comply with applicable electrical codes; C. Defendant be required to trim her hemlock tree back so that no debris from such tree falls on Plaintiffs property. Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920•-8901 E-Mail: tbemerCdo-beraerlawfirm.net -10- VERIFICATION I, Randee McQuown, affirm that I am the Plaintiff in this action and that the statements of fact made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. 4 4904 relating to unsworn falsification to authorities. Date: July 18, 2005 rA?t1 andee McQuown CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing documents, Complaint in a Civil Action., upon the following person, in the manner indicated: VIA FIRST CLASS MAIL Judith Krebs 36 S. 27" Street Camp Hill, PA 17011 Date: July 18, 2005 ^' ? ?; ?.?; ? ?,;?? _ -, ? G'3 _ , .. ?t.2 _ _ ," ? ` ;i"il ? ;`J - --t r ?l -. ?'y RANDEE MCQUOWN, Plaintiff V. JUDITH KREBS, Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 03246 CIVIL ACTION - LAW Kindly dismiss the above captioned matter as required by Rule 1006. Appellant, Randee McQuown, filed a notice of appeal on June 27, 2005. District Justice Rules of Procedure 1005 (Pa R.C.P.D.J. No. 1005) requires service of notice of appeal to Appellee and the District Justice. Rule 1005 also requires that proof of service be filed within 10 days after filing of the notice of appeal. Because the Appellant has failed to file proof of service, Rule 1006 requires dismissal of the appeal upon praecipe of appellee. Therefore, Appellee requests that the Prothonatary dismiss the appeal as required by Rule 1006. Respectfully submitted, Date: C& 1-2,1 U '?- Law Offices of Peter J. Russo, P.C. <::?? By: 4 Peter J. Russo, Esquire S 6 o77 A S- t ,/i 3800 Market Street Camp Hill, PA 17011 Alrw'OL'Y t'7 ? ? (717) 591-1755 AND NOW, this 3rd day of August, 2005, above Appeal is hereby dismissed in accordance with above Praecipe. CU 3 R. P thonotary ?? koa'idee Mr gt)oWN plc,A f7' VS. In the Court of Common Pleas of Cumberland County, Pennsylvania No. Ur' 03RI Civil. 19 ,tvO/ -r F7 kR6-6S IUZJ- Ac nay - LA1^0 (I PROM vNOT%<N I-rnJ PLEWZ &nrr£)Q 17h- A9PtRenn?cr [C S-rC'rr A sTEy?-; tS(g- Z-Aic) UacF r eel ,?1- PL-r"M J" R. vIl0 ,c 49? `e v "U LLI C. ic ecrmm Re`T-cpzo) F"R jjj O??eauJJAiN?t fv>1,Tr1,Koe'f-SRS /A) nYF Aigove'- CAff?o m MATTLne To Prothonotary i/ SZ-o -T A. Attorney for Waiw[+ff /gyp o de 4-gamey /D do- 91 73 Term. 29 No. vs. pRAECIPE 19 Any. t.P;.?.., `.'iiJ RANDEE MCQUOWN, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - 03246 JUDITH KREBS, CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I, Debra A. Micklo, hereby certify that I am on this day serving a copy of the foregoing document (s) upon the person (s) and in the manner indicated below; First Class, Postage Prepaid, and Addressed as Follows: Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 A )Vji4ollle DebfS A. Micklo, Paz egal Date: V cs- C ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front i( space permits. 1. Article Addressed to: !]Th ?Ifebs ,3& S_ 8?14, Sit Coo p Aril , N ootk 2. Article Number (riansfer Oom service 16500 ¦ Complete items 1, 2, and 3. Also complete item 4 1 Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front If space permits. 1. Article Addressed to: ?liober4 V. VKan Id?e Moil }e,ri a P ?J? sit; d 09 - I -b,? 1gdl 5?-?c <S?. PA nol, 2. Article Number (riansfar flan seMce label) :J A ature KAgent ? Addressee a eiv by Printed Name) C. Date of Delivery D. Is delivery address different from item 17 LJ Yes if YES, enter delivery address below: ? No 3. Serv Type UArtified Mall ? Express Mall 13 Registered ? Return Receipt for Merchandise ? Insured Mall ? C.O.O. 4. Restricted Delivery? (Extra Fee) p Yes '0 0065 aaq r /,P I Ps Form 3811, February 2004 Domestic PS Form 3811, February 2004 Domestic Rstum Receipt 102595m-nt-tsao (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal, Check applicable boxes-) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT; I hereby (swear) (affirm) that I served a copy of the Notice of Appeal, Common Pleas No. OS- J-2 y('upon the District Justice designated therein on tl< , (date of service) Zoe e.7'7 , 20 QS ? by personal service ex by (certified) (registered) mail, . .. sender's receipt attached hereto, and upon the appellee, (name) J _.. toW ) Krebs , on J une 077 20,06 ? by personal service by (certified) (registered) mail, sender's receipt attached hereto e (SWORN) AFFIRMED) AND UBSCRIBED BEFORE ME `J /??/ ?/ ?I/ / ,.n ?,i _i 6 Signature of of kiat before whom a was made I, A maoey PuBue _ Title of official My commission expires on 200?g n N p p Rl Vr C ?frs ? 2 ??v p swl Z t r C CD ?A 4pYMCCtg1 ?030 _ ? , F_ AS-0800i OfOf AOPC 312A-02 COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. j '..? 5.4 y7 (? NOTICE OF APPEAL Te.v rr Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. NA OF APPELLANT MAG DIST, NO. NAME OF D.J NJ L -'yc: ADDRESS OF APPELLANT CITY STATE ZIP CODE o = "T kT- k-i=E ''1)t rfr ?L r ; r''1 i DATE OF JUDGMENT IN THE CASE OF (Plai=lilt) VS tut (Ddentlanl) ' G (r 2 I 2 a l L u a r Ir L.a. L, T? 11 <! IF DOCKET No. SIGNATURE OF A LLANT OR ATTO R AGENT This block will be signed ONLY when this notation is required under Pa. If appellant was Clai ant a Pa. R. C.V .D.J. No. 1001(6) in action R.C.P.D.J. No. 10086. This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty SUPERSEDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. SignatureofP ha aryor Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon appellee(s), to file a complaint in this appeal Name of appellees) (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or attorney RULE: To , appellee(s) Name of appellea(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2). If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Dale: 20 Slgnatum,.b 70oq awyofDoplly-, n YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE O-F-APPEAL. AOPC 312-02 COUR'T' RILE RANDEE MCQUOWN, Plaintiff VS. JUDITH KREBS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3246 CIVIL IN RE: PLAINTIFF'S MOTION TO REINSTATE APPEAL ORDER AND NOW, this g ? day of August, 2005, upon consideration of the foregoing petition, it is hereby ordered that: 1. A rule is issued upon the respondent/defendant to show cause why the petitioner is not entitled to the relief requested. 2. The respondent shall file an answer to the petition within twenty (20) days of service upon the respondent. 3. The petition shall be decided under Pa.R.C.P. 206.7. 4. Depositions, if any, shall be completed within thirty (30) days of this date. 5. The Prothonotary is ordered and directed to list this case for the regular session of argument court to be held October 5, 2005. The parties shall comply with the briefing schedule in accordance with local rule. 6. Notice of the entry of this order shall be provided to al.1 parties by the petitioner. '1Y 01% 9h "0 10 BY THE COURT, ' Z : I I WV 81 011V SUE AoliciN _)! t!.U,7?1:1 3hL ?o 3012: Q-Qa1H RANDEE MCQUOWN, Plaintiff VS. JUDITH KREBS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3246 CIVIL IN RE: PLAINTIFF'S MOTION TO REINSTATE APPEAL ORDER AND NOW, this Z Z *4' day of August, 2005, our order of August 18, 2005, is amended to reflect that the Prothonotary is ordered and directed to list this case for the regular session of argument court to be held on October 20, 2005. All other provisions of said order of August 18, 2005, shall remain in full force and effect. BY THE COURT, Vh'dmund J. Berger, Esquire For the Plaintiff Ater J. Russo, Esquire J For the Defendant Am 6pkan" OP ?3-6? FILED-0;-FICE OF This °RO"HONO;ARY 2005 AUG 22 PH 4: 02 41if'.t `. ?,C'Ju diY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION TO REINSTATE APPEAL In support of the above stated Answer, Defendant Judith Krebs, by and through her counsel, Peter J. Russo, Esquire, avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Defendant lacks sufficient knowledge as to Plaintiffs failure to conform to Pa.R.C.P.D.J. 1005. The remainder of this paragraph calls for a legal conclusion. To the extent any answer is required, the Defendant denies. 6. This paragraph calls for a legal conclusion as the Rule speaks for itself. Defendant denies to the extent any answer is required. 7. This paragraph calls for a legal conclusion as the Rule speaks for itself. Defendant denies to the extent any answer is required. 8. This paragraph calls for a legal conclusion as the Rule speaks for itself. Defendant denies to the extent any answer is required. WHEREFORE, Defendant respectfully requests this Honorable Court to deny Plaintiff's Motion to Reinstate Appeal. Resec 11 sub ' LAW OFFICES OF PET USSO, P.C. Peter J. Russo, Esquire Attorney I.D. No. 72897 Attorney for Defendant 3800 Market Street Camp Hill, PA 17011 717-591-1755 September 13, 2005 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the Plaintiff's Answer to Defendant's Motion to Reinstate Appeal, upon the following person, in the manner indicated: FIRST CLASS MAIL Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 DATE: September 13, 2005 Peter J. Russo, Esquire .? ?-, ?> -, -, f _.. -? -r LJ __ T, _ ? ?I ?P _ .7 `? ` RANDEE MCQUOWN, Plaintiff VS. JUDITH KREBS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 05-3246 CIVIL IN RE: MOTION TO REINSTATE APPEAL BEFORE HESS AND OLER, JJ. ORDER AND NOW, this appeal is GRANTED. ?und Berger, Esquire For the Plaintiff Fott Stein, Esquire For the Defendant rlm 4* day of November, 2005, the motion of the plaintiff to reinstate BY THE COURT, ., , ,,?, ... ,?,_..._. ?; ?_ cii? _. _. __"i'', RANDEE MCQUOWN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 05-3246 CIVIL JUDITH KREBS, Defendant IN RE: MOTION TO REINSTATE APPEAL BEFORE HESS AND OLER, JJ. OPINION AND ORDER On June 21, 2005, Magisterial District Judge Robert V. Manlove entered judgment in favor of defendant, Judith Krebs, and against plaintiff, Randee McQuown, with respect to plaintiff s Complaint and defendant's Counterclaim. On June 27, 2005, six days after the entry of judgment, the plaintiff filed a Notice of Appeal pursuant to Rule 1002 of the Pennsylvania Rules of Civil Procedure for Magisterial Judges. Pa. R.C.P. M.D. J. 1002. Plaintiff's Notice of Appeal was served on District Judge Manlove on June 29, 2005, and defendant Krebs on July 5, 2005, both of whom were served by Certified Mail and signed receipts were received by plaintiff with respect to both of them. i On August 3, 2005, defendant Krebs filed a Praecipe to Dismiss. The basis of the the Praecipe was plaintiff s failure to attach Proof of Service of the Notice of Appeal within 10 days of filing the Notice of Appeal, in violation of Pa. R.C.P.M.D.J. 1002. On August 3, 2005, the prothonotary's office dismissed plaintiff s appeal. On August 8, 2005, plaintiff McQuown filed a Motion to Reinstate Appeal and filed the required Proof of Service at that time. On August 18, 2005, the court entered an Order upon defendant to show cause why plaintiff was not entitled to ' These matters are undisputed having been pled in the Motion to Reinstate and admitted in the answer thereto. NO. 05-3246 CIVIL relief. Subsequently, defendant Krebs filed his Answer to Plaintiff s Motion to Reinstate Appeal, admitting the salient factual averments. DISCUSSION Pennsylvania Rules of Civil Procedure for Magisterial District Judges 1005(B) provides: "The appellant shall file with the prothonotary proof of service of copies of his notice of appeal, and proof of service of a rule upon the appellee to file a complaint if required to request such a rule by Rule 1004(B), within ten (10) days after filing the notice of appeal." Pa. R.C.P.M.D.J.1005(B). The essential purpose of Rule 1005, is to prevent parties from appealing from an adverse judgment of a district justice and then delaying the case by failing to timely notify the non-appealing party. Slaughter v. Allied Heating, 636 A.2d 1121, 1124 (Pa. Super. 1993). The specific purpose of Rule 1005(B) is to eliminate any dispute as to whether service was actually made. Hyde v. Crigler, 10 Pa. D.& C. 769, 773 (Allegheny Co. 1986). The requirements of Rule 1005 promote the speedy, orderly and just determination of the appeal. Slaughter, 636 A.2d at 1124. The ten-day rule is flexible and is to be liberally construed. Id.. The mere failure to file the proofs of service in a timely manner will be disregarded where it is clear that the opposing party has received notice of the appeal and that the purpose of the rules of civil procedure has been satisfied. Voland v. Gray, 652 A.2d 935, 936 (Pa. Super. 1995). It is clear in the case at bar that appellee had received notice of the appeal. Appellee's sole reason for seeking dismissal is not that he had not received notice of the appeal but rather that appellant had failed to attach its certificate of service. Pursuant to Pa. R.C.P.M.D.J. 1006, the trial court may reinstate an appeal "upon good cause shown." Defendant relies on the Slaughter case for the proposition that inadvertent error is NO. 05-3246 CIVIL insufficient to show good cause. The Slaughter case is distinguishable from the case at bar in that there was nothing in the record indicating that appellant actually served the notice of appeal on appellee and the district magistrate. Slaughter, 636 A.2d at 1123. Pennsylvania Rule of Civil Procedure 126 provides that the court may disregard any error or defect of procedure which does not affect the substantive rights of the parties. Pa.R.Civ.P. 126. Here, the appellant has produced receipts establishing that the notices of appeal were timely served. In addition, it is clear that he did not deliberately ignore the filing requirements of Rule 1005(B). The appellee has also not shown that it was harmed in any way by the appellant's error. ORDER AND NOW, this 19' day of November, 2005, the motion of the plaintiff to reinstate appeal is GRANTED. Edmund Berger, Esquire For the Plaintiff Scott Stein, Esquire For the Defendant Am BY THE COURT, c Law Offices of Peter J. Russo, P.C. By: Elizabeth J. Saylor, Esquire Attorney I.D. No. 200139 3800 Market Street Camp Hill, PA 17013 (717)591-1755 (717) 591-1756 Facsimile Attorneys for Judith Krebs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff V. JUDITH KREBS, Defendant No. 05-3246 CIVIL JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT PROCEDURAL HISTORY 1. On August 18, 2005, Judge Kevin A. Hess entered an Order upon Defendant to show cause why Plaintiff was not entitled to relief. 2. On November 18, 2005, Judge Kevin A. Hess granted Plaintiffs Motion to Reinstate Appeal. LEGAL INSUFFICIENCY OF A PLEADING AND NOW, COMES Defendant, Judith Krebs ("Krebs"), by and through her attorneys, Law Offices of Peter J. Russo, P.C., makes the following preliminary objections to Plaintiff Randee McQuown's, ("Plaintiff') Complaint, and pursuant to Pa.R.C.P. 1028(a)(4) avers as follows: 1. A complaint may be dismissed for legal insufficiency pursuant to Pa.R.C.P. 1028(a)(4). 2. In "Count 3" of her Complaint, Plaintiff avers Injunctive Relief, specifically requesting the honorable Court to order Plaintiff to: a. maintain the gutters of the house located at 2700 Chestnut Street, Camp Hill, Pennsylvania, 17011, clear and free of debris. b. remove or turn off floodlights on the property located at 2700 Chestnut Street, Camp Hill, Pennsylvania, 17011 c. trim the hemlock trees on the property located at 2700 Chestnut Street, Camp Hill, Pennsylvania, 17011 See Plaintiff's Complaint ¶ 34-39. 3. Defendant sold the property located at 2700 Chestnut Street, Camp Hill, Pennsylvania, 17011, in August of 2005. WHEREFORE, Defendant, Judith Krebs, respectfully request this Court enter an Order dismissing "Count 3" of Plaintiff Randee McQuown's Complaint with prejudice or for such other relief as it finds just and proper. Respectfully submitted, LAW OFFICE OF PETER J. RUSSO, P.C. Attorneys for Defendant Peter J. Russo, Es uire Attorney I.D. No. 72897 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 200139 3800 Market Street Camp Hill, PA 17011 717-591-1755 DATE: 12-8-05 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL V. JUDITH KREBS, Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT upon the following person, in the manner indicated: FIRST CLASS MAIL Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 LAW OFFICE OF PETER J. RUSSO, P.C. Attorneys for Defendant BY: lizabet J. !?a-yloe, ?- Attorney I.D. No: 200139 DATE: 12-8-05 ,; ., __ n - ! ' ? _- ?.? ._ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff V. JUDITH KREBS, JURY TRIAL DEMANDED Defendant No. 05-3246, 2005 Term State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiff's Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: Edmund J. Berger, Esquire, 2104 Market St., Camp Hill, PA. (b) for defendant: Elizabeth J. Saylor, Esquire, 3800 Market St. Camp Hill, PA. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Elizabeth J. a r, Esquire Law Offices of Peter J. Russo 3800 Market Street Camp Hill, PA 17011 Attorney for Defendant Date: /,) /`" 6,s- -73 `4> J ,L? t t.J l 7Y, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN vs. JUDITH KREBS Plaintiff, No: 05-3246 CIVIL TERM Defendant JURY TRIAL DEMANDED 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 Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAIV PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania Telephone Number 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en [as siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin imas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania Telephone Number 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, No: 05-3246 CIVIL TERM Vs. JUDITH KREBS Defendant AMENDED COMPLAINT IN A CIVIL ACTION Filed on behalf of: PLAINTIFF Counsel of Record for this party: Edmund J. Berger Attorney I.D. #53407 Berger Law Firm, P.C. 2104 Market Street Camp Hill, PA 17011 (717) 920-8900 (Phone) (717) 920-8901 (Fax) A. 1. Plaintiff, Randee McQuown, is the owner of, and resides at, 2700 Chestnut Street, Camp Hill, PA 17011. 2. Defendant, Judith Krebs, is the owner of, and resides at 36 S. 27`h Street, Camp Hill, PA 17011. 3. Plaintiff and Defendant are neighbors. In particular, the back of Plaintiffs property and the left side of Defendant's property are adjacent to each other. A narrow concrete sidewalk is along the rear of Plaintiffs home. B. WATER NUISANCE CAUSED BY DEFENDANT'S CLOGGED GUTTERS 4. Defendant's roof on the left side of her house slants at a steep descent toward Plaintiffs house and, if the gutters along this roof are clogged, and/or if the gutters on the porch roof on the same side of the house become clogged, water from Defendant's roof falls on Plaintiffs property. 5. Beginning in approximately September 2003, Defendant's gutters (including the porch roof gutter) on the left side of her house became clogged with debris and failed to drain water from the roof, resulting in rainwater falling onto Plaintiffs property in significant quantities. 6. Plaintiff advised Defendant three times in person of this drainage problem but Defendant failed to take any action. 7. On December 19, 2003, Plaintiff sent Defendant a letter advising her of the continuing drainage problem. Despite Plaintiffs letter, Defendant took no action to correct the problem. - I - 8. In July 2004, Plaintiff complained to the Camp Hill Borough Codes Officer regarding the continuing problem with water drainage from Defendant's property. During this time, a Borough official observed the drainage problem. As a result, on July 14, 2004, the Borough notified Defendant that this arrangement was in violation of the Camp Hill Borough Code Article III Section 154.9C., which states the following: Grading and drainage- All premises shall be graded and maintained so as to prevent the accumulation of stagnant water thereon or within any building or structure located thereon, and, further, so as to prevent erosion and drainage onto adjacent properties or into streets or public ways. 9. In his letter, the Camp Hill Borough Codes Compliance Official asked Defendant to take steps to correct this violation within the next seven (7) days. 10. Despite the notice from the Camp Hill Borough Codes Official, Defendant took no action to correct this situation until approximately September 1, 2004. 11. As a result of Defendant's actions, rainwater continuously fell on Plaintiffs property for an extended period of time, saturating the soil, causing moisture to migrate into the crawl space under Plaintiffs house, and resulting in damage to her property. In particular, the following damage resulted to Plaintiffs property: -2- a. The concrete walkway subsided with estimated costs of repair of $755; b. Moisture damage to the rear of Plaintiffs house caused cracking of plastering and paint at an estimated cost of repair of $500; C. Moisture damage to the rear of Plaintiffs house caused the growth of mold with an estimated cost of remediation of $5,356; d. Moisture damage to the rear of Plaintiffs house caused damage to carpeting, padding and floor insulation at a repair cost of $100. e. Erosion requires replacement of topsoil and replanting at an estimated cost of $250. f. Property maintained in basement storage and valued at $300 was destroyed. 12. Although Defendant's gutters were cleaned in September, 2004, Defendant's gutters are again overflowing onto Plaintiffs property and pose the risk of additional damage. C. 13. During the winter of 2003, Defendant failed to clear snow and ice off of the roof of her house despite a substantial buildup of snow and ice over a period of time. As a result, ice accumulated and a piece: of ice slid off -3- Defendant's roof resulting in a broken window at Plaintiff's home on February 22, 2003. 14. Plaintiff sent a written request to Defendant notifying her of the damage and requesting Defendant to have her insurance company contact her, but she failed to do anything. 15. Plaintiff was required to replace the window at a cost of $60. D. GROUND-BASED FLOODLIGHT NUISANCE 16. Beginning sometime prior to May 2004, Defendant installed a floodlight on the ground of her property which was directed toward Plaintiffs windows. The light was kept on all night, every night, beginning at some point prior to May 2004 and continues until the present. The floodlight was installed with indoor, non-permanent wiring with plastic over-connects, was propped against a brick and surrounded by debris from trees, i.e. hemlock needs, and wood mulch. Additionally, the unit used an extension cord which did not appear to be approved for outdoor use and plastic bags and duct tape appeared to cover connections to other cords. Plaintiff personally observed the floodlight smoking and lying face down on the ground at times. Additionally, because of the significant rainfall during the summer of 2004, it is believed that the fixture presented a risk of electrocution to those nearby. 17. The ground-based floodlight presented a risk of fire to the surrounding properties, including Plaintiffs property. Plaintiff asked Defendant to remove this light because of the hazard involved and its nuisance to Plaintiff. Despite Plaintiffs requests, including a brief written note: to Defendant on July 12, -4- 2004, Defendant failed to remove the floodlight or to redirect the light from Plaintiffs home. 18. On July 15, 2004, Plaintiff filed a complaint: with the Camp Hill Borough police concerning the situation with the ground-.based floodlight. A police officer came to Plaintiffs home and confirmed that the floodlight shined into Plaintiffs bedroom window and the police officer left: a note asking Defendant to contact police regarding this matter. Despite the police officer's request, Defendant took no action to remedy this situation. In August 2004, Plaintiff also notified the Borough Fire Department of her concern with respect to the risks presented by this floodlight. 19. Despite Plaintiffs complaints, Defendant has failed to take any action to remedy this situation. E. NUISANCE FROM FLOODLIGHTS INSTALLED IN MARCH 2005 20. In March, 2005, Defendant installed four motion detector floodlights just under the roof gutter at her home and within feet of Plaintiffs house and directed them in the direction of Plaintiffs bedroom windows. If Plaintiff opens her back door, or walks behind her house, these flood lights turn on and flood Plaintiffs home with very bright light. 21. Despite repeated requests to Defendant to remove said floodlights and to turn them off and/or redirect them, Defendant failed to do so. The shining of lights in such fashion is in direct violation of Borough ordinances. 22. Despite Plaintiffs requests, Defendant has failed to remove, turn-off or otherwise abate this nuisance. -5- F. NUISANCE FROM OVERGROWTH OF DEFENDANT'S TREE 23. For some time, a hemlock tree on Defendant's property has extended over the property line between Plaintiff and Defendant. 24. Although Plaintiff requested that Defendant trim this tree back on several occasions or remove it if necessary to resolve this problem, Defendant failed to so trim the tree. 25. As a result, Defendant's tree has caused minor damage (a hole in a roof shingle) and has continuously left a significant amount of debris on Plaintiffs property, including small sticks, pine (hemlock) cones, and needles from the tree. This debris has often been infested with bugs, i.e. mites, and is contaminated with wooley adelgid and scales, diseases of hemlock trees. Plaintiff has had to clean this debris up on frequent occasions, causing annoyance and inconvenience. 26. In July 2000, Defendant constructed a fence, part of which rests on Plaintiffs property. 27. Despite Plaintiffs requests to have this fence removed from Plaintiffs property, Defendant has refused to remove the fence from Plaintiffs property. COUNT 1 - Nuisance 28. Paragraphs 1 through 24 are incorporated by reference into this Count. -6- 29. Defendant's unreasonable, unwarrantable and unlawful use of her property resulted in injury and damages to Plaintiff and tier property as described above and in the following respects: a. By causing damage to Plaintiffs property; b. By interfering with Plaintiffs use and enjoyment of her property; C. By failing to correct the offending conditions when requested and after repeated requests, resulting in inconvenience, annoyance, and upset to plaintiff; d. By causing Plaintiff to incur costs of' repair; e. By causing Plaintiff to expend time and effort to correct situations caused by Defendant's property without being compensated; f. By exposing Plaintiffs property to an increased risk of termite exposure; g. By exposing Plaintiff to an apparent: risk of fire and/or electrocution, resulting in upset and annoyance; h. By interfering with Plaintiffs ability to sleep; i. By putting Plaintiff in fear of fire and electric shock. 30. Defendant's actions in failing to clear her gutter despite Plaintiffs repeated requests, in maintaining an unsafe floodlight oin her property which she knew distressed Plaintiff, in directing of floodlights toward Plaintiffs bedroom window despite Plaintiffs repeated requests to remove them, redirect them, -7- and/or turn them off, in failing to remove or trim back a tree that she knew left a substantial amount of debris, including bug-and-disease-infested debris on Plaintiffs property, in ignoring notifications from Borough officials concerning these issues, were intentional and malicious acts designed to upset Plaintiff and to cause her annoyance and loss of enjoyment of her property. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $30,000, including both compensatory and punitive damages, plus interest and costs. COUNT 2 - TRESPASS 31. Paragraphs 1 through 31 are incorporated into this Count by reference. 32. Defendant's actions in constructing a fence on Plaintiffs property constitutes a continuing trespass on Plaintiffs property. 33. Defendant's trespassory actions are inappropriate interferences with Plaintiffs peaceful possession of her property and have caused Plaintiff substantial inconvenience, distress and discomfort. -8- WHEREFORE, Plaintiff demands judgment against Defendant in an amount equal to $10 per day for such trespass for each day in the past two years, or $7,300, plus interest and costs. Attorney for Plaintiff 2104 Market Street Camp Hill, PA '17011 Phone: 717-92:0-8900 Fax: 717-920-13901 E-Mail: tbergenftergerlawfirm.net -9- VERIFICATION I, Randee McQuown, affirm that I am the Plaintiff in this action and that the statements of fact made in the foregoing Amended Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. ? 4904 relating to unsworn falsification to authorities. Date: December 22, 2005 ?Q?'IG?Co2ZhJ Randee McQuown CERTIFICATE OF SERVICE I hereby certify that I have this day filed the foregoing Amended Complaint in a Civil Action, upon the following person and in the manner indicated. BY FIRST CLASS MAIL Peter J. Russo, Esq. 3800 Market Street Camp Hill, PA 17011 Date: December 27, 2005 r-? ^v l7 ? ?7 _ _ ---1 .... ?? ,.,. _?. " , i . ?: -? f. C J is ; _.. ? -i 1 r .{ L: ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. RANDEE MCQUOWN, JUDITH KREBS, Plaintiff, No: 05-3246 CIVIL TERM Defendant PRAECIPE TO REMOVE MATTER FROM ARGUMENT LIST Please remove this matter from the Argument List of January 11, 2006 with respect to Defendant's Preliminary Objections to Plaintiffs Complaint. Argument has been made moot by Plaintiffs filing of an Amended Complaint in accordance with Pennsylvania Rule of Civil Procedure 1028(c)(1), Pa.R.C.P. 1028(c)(1). Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tberger(ftergerlawfirm.net r? Cll c- .a s" r? Law Offices of Peter J. Russo, P.C. By: Elizabeth J. Saylor, Esquire Attorney I. D. No. 200139 3800 Market Street Camp Hill, PA 17013 (717)591-1755 (717) 591-1756 Facsimile Attorneys for Judith Krebs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, . Plaintiff : No. 05-3246 CIVIL V. JUDITH KREBS, JURY TRIAL DEMANDED Defendant PRAECIPE TO WITHDRAW Kindly withdraw Defendant's Praecipe to List the above referenced matter for Argument Court. Date: /,? -,?o os 7 Las o Peter . Russo, P.C. 3800 Market Street Camp Hill., PA 17011 Peter J. Russo, Esquire I.D. No. 72897 Scott A. Stein, Esquire I.D. No. 81738 Elizabeth J. Saylor, Esquire I.D. No. 200139 Law Offices of Peter J. Russo, P.C. By: Elizabeth J. Saylor, Esquire Attorney I.D. No. 200139 3800 Market Street Camp Hill, PA 17013 (717)591-1755 (717) 591-1756 Facsimile Attorneys for Judith Krebs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL V. JUDITH KREBS, JURY TRIAL DEMANDED Defendant CERTIFICATE OF SERVICE I, Sharon A. Orr, hereby certify that I am on this day serving a copy of the PRAECIPE TO WITHDRAW upon the person (s) and in the manner indicated below, service by First-Class Mail, Postage Prepaid, and Addressed as Follows: Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 Sfia:ron A. Orr Date: c. ..." -,, ?: " C.? ::?4 , ? -'c T ' ? fi! ? c ; r'y ,1_? M1, ?_ !" 1l Law Offices of Peter J. Russo, P.C. By: Elizabeth J. Saylor, Esquire Attorney I.D. No. 200139 3800 Market Street Camp Hill, PA 17013 (717)591-1755 (717) 591-1756 Facsimile Attorneys for Judith Krebs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL V. JUDITH KREBS, JURY TRIAL DEMANDED Defendant NOTICE TO PLEAD TO: Edmund J. Berger, Esquire Counsel for Randee McQuown You are hereby notified to file a written response to the enclosed Defendants' Answer and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. / LAW FFIC F ER J. RUSSO, P. Attorneys for Plaintiff Peter J. Russo, Esquire ID No. 72897 Scott A. Stein, Esquire ID No. 81738 Elizabeth J. Saylor, Esquire ID No. 200139 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL V. JUDITH KREBS, Defendant JURY TRIAL DEMANDED DEFENDANT'S ANSWER TO PLAINTIFF'S AMENDED COMPLAINT A. INTRODUCTION 1. Admitted. 2. Denied. Judith Krebs is not the owner of the residence located at 36 South 27th Street, Camp Hill, Pennsylvania nor does she reside at said address. 3. Denied. Plaintiff and Defendant are not neighbors. B. WATER NUISANCE CAUSED BY DEFENDANT'S CLOGGED GUTTERS 4. Admitted in part, denied in part. It is admitted that the roof of the house located at 36 South 27th Street, Camp Hill, Pennsylvania slants at a steep pitch on both sides of the house, as the house was built that way. It is further admitted that rain could fall on Plaintiffs property if the gutters become clogged. It is denied that water from Defendant's roof falls on Plaintiffs property. 5. Denied. Defendant is unaware of any time in September of 2003 where the gutters on her home caused significant quantities of rainwater to fall on Plaintiffs property. 6. Denied. Defendant denies ever being advised that there is a drainage problem that she did not take care of. 7. Denied. Defendant has no recollection of any letter provided by Plaintiff regarding these issues. Strict proof is demanded at the time of trial. 8. Denied. The averments contained in Paragraph 8 are conclusions of law to which no response is required. By way of further response, the averment in Paragraph 8 contains statements from a document which controls and any interpretational gloss placed thereon by Plaintiff is strictly denied. 9. Denied. The averments contained in Paragraph 8 are conclusions of law to which no response is required. By way of further response, averment in Paragraph 8 contains statements from a document which controls and any interpretational gloss placed thereon by Plaintiff is strictly denied. 10. Denied. Defendant attempted to take all reasonable action to correct any situation brought to her attention by the Camp Hill Borough Codes Officials but upon attempting to resolve the issues, Plaintiff refused Defendant access to Plaintiffs land in order to address and correct said problems. 11. (a-f) Denied. Defendant is without sufficient knowledge or information to confirm or deny that moisture migrated into the crawl spaces of Plaintiffs home. 12. Admitted in part, denied in part. It is admitted that Defendant's gutters were cleaned in September of 2004. It is denied that Plaintiffs gutters overflowed onto Plaintiffs property and posed any additional risk. C. SNOW AND ICE NUISANCE CAUSED BY ACCUMULATED ICE AND SNOW ON DEFENDANT'S ROOF. 13. Admitted in part, denied in part. It is admitted that during the winter of 2003, like thousands of Central Pennsylvanians, Defendant did not climb onto her roof and clear the ice and snow therefrom. By way of further response, the balance of allegations contained in Paragraph 13 are denied as Defendant has no knowledge of any ice or snow falling from her roof and breaking a window in Plaintiffs home. 14. Admitted in part, denied in part. It is admitted that Defendant was notified of Plaintiffs allegation that snow or ice from Defendant's home broke Plaintiffs window. While it is denied that anything from Defendant's roof broke Plaintiff's window, to that end Defendant did nothing in response to the written request by Plaintiff. By way of further response, strict proof is demanded at the time of trial. 15. Denied. Paragraph 15 contains a conclusion of law to which no response is required. By way of further response, strict proof is demanded at the time of trial. D. GROUND-BASED FLOODLIGHT NUISANCE 16. Denied. The averments contained in Paragraph 16 are compound in nature and do not comport with applicable rules of civil procedure. By way of further response, it is denied that Defendant installed any outdoor lighting which caused a potential risk of electrocution to those nearby. 17. Denied. While it is admitted that Defendant had a ground based floodlight, it is denied that the ground based floodlight presented any risk of fire to any surrounding properties including that property of the Plaintiff. 18. Denied. The averments contained in Paragraph 18 are conclusions of law to which no response is required. By way of further response, the averment in Paragraph 18 contains statements from a document which controls and any interpretational gloss placed thereon by Plaintiff is strictly denied. By way of further response, Defendant was in fact contacted by Camp Hill Police Department advising Defendant that the ground based floodlight that she was using was acceptable. 19. Denied. All of Plaintiff's complaints were not reasonable therefore Defendant had no obligation to remedy any of the situations. E. NUISANCE FROM FLOODLIGHTS INSTALLED IN MARCH 2005. 20. Admitted in part, denied in part. It is admitted that Defendant installed motion floodlights under her gutter. It is specifically denied that the floodlights were directed at Plaintiffs home. 21. Denied. The averments contained in Paragraph 21 are conclusions of law to which no response is required. By way of further response, Plaintiff never requested Defendant to remove or redirect said floodlights. 22. Denied. Plaintiff never requested Defendant remove or turn off or otherwise abate the alleged nuisance complained of in Paragraph 22. F. NUISANCE FROM OVERGROWTH OF DEFENDANT'S TREE. 23. Admitted in part and denied in part. It is admitted that branches of the hemlock tree extended over the property line between the two parties. By way of further response, Plaintiff, without hesitation, trimmed the branches of the hemlock tree that extended onto her property. 24. Denied. It is specifically denied that Defendant was ever requested by Plaintiff to trim back the tree in question. By way of further response, Plaintiff, again without hesitation, trimmed the tree whenever she deemed necessary. 25. Denied. The allegations contained in Paragraph 25 are compound in nature and thereby do not comport with the rules of civil procedure. By way of further response, Defendant is unaware of any damage caused by the tree in question. Additionally, Defendant is unaware of any bugs that may have contaminated the roof of Plaintiff's property. Strict proof is demanded at the time of trial. 26. Admitted in part, denied in part. It is admitted that in July 2000, Defendant constructed a fence. By way of further response, Defendant used the services of a surveyor who staked out the property line between the two properties. The survey then was used to mark the fence line for the fence company to build the fence in July of 2000. 27. Admitted in part, denied in part. It is admitted that Plaintiff did request to remove the fence. It is denied that Defendant has any obligation to remove the fence. Strict proof is demanded at the time of trial. COUNT 1 -- NUISANCE 28. Denied. The Rules of Civil Procedure do not require a response to the advent contained in Paragraph 28. By way of further response, Defendant hereby incorporate their responses to Paragraphs 1 through 27 by reference herein. 29. (a-i) The averments contained in Paragraph 29 a-i are conclusions of law to which no response is required. 30. The averments contained in Paragraph 30 are conclusions of law to which no response is required. WHEREFORE, Defendant demands judgment against Plaintiff dismissing the claims contained in Count I. COUNT 2 - TRESPASS 31. Denied. The Rules of Civil Procedure do not require a response to the advent contained in Paragraph 31. By way of further response, Defendant hereby incorporate their responses to Paragraphs 1 through 30 by reference herein. 32. The averments contained in Paragraph 32 are conclusions of law to which no response is required. 33. The averments contained in Paragraph 33 are conclusions of law to which no response is required. Strict proof is demanded at the time of trial. WHEREFORE, Defendant demands judgment against Plaintiff dismissing the claims contained in Count II. DEFENDANT'S NEW MATTER 34. Defendant incorporates her answer in Paragraphs 1 through 33 herein by reference. 35. A dispute between the Plaintiff and Defendant hereto has been ongoing for approximately a decade. 36. Defendant purchased the property located at 36 S. 27`h Street, Camp Hill, PA 17011 (hereafter "the house"), in 1972 and remained there until August 2005. 37. Prior to Plaintiff moving into the house, Defendant was the neighbor of two other families who lived at 2700 Chestnut Street, Camp Hill, PA 17011 (hereafter "Plaintiff's house") prior to Plaintiff. 38. Defendant never had any complaints by any previous neighbors prior to Plaintiff. 39. Defendant never made any alterations to the build and/or design of the roof on the house. 40. The hemlock tree referenced by Plaintiff was present when Defendant purchased the house. 41. During the entire time Defendant lived at the house, the hemlock tree entered the airspace of the property at which Plaintiff now resides. 42. In January of 2005, an individual bent the molding on Defendant's car while the car was parked in Defendant's driveway. 43. From April until October, up to and including 2004, Plaintiff loudly played one to two radio(s) in her house with her windows ajar. 44. In the summers, up to and including 2004, Plaintiff would turn on her lawnmower and leave it running while stationary in her yard at times when Defendant had guests over to her home and present on Defendant's porch. 45. In the summers, up to and including 2004, Plaintiff would drag a metal rake across the sidewalk in close proximity to Defendant's home at times when Defendant had guests over to her home and present in Defendant's yard. 46. Up to and including 2004, Plaintiff would loudly yell rude comments concerning Defendant's age, weight, appearance and lifestyle at Defendant while Defendant was on her own property or riding her bicycle throughout the neighborhood. 47. Up to and including 2004, Plaintiff would allow her dog to defecate on Defendant's property. 48. In the summer of 2004, an individual placed a container full of cat feces on Plaintiffs side of the fence, in close proximity to Defendant's porch. 49. During the summer of 2004, an individual threw muddy water onto Defendant's porch, saturating Defendant's porch furniture, rug, table cloth, causing damages in an approximate amount of $200.00. 50. In the summer of 2004, Defendant observed the Plaintiff throwing cat feces on Defendant's property. 51. In the fall of 2004, Plaintiff raked leaves onto Defendant's sidewalk. 52. In the fall of 2004, an individual threw pine cones, branches and needles onto Defendant's property and hung said on Defendant's fence. 53. On Christmas Eve, 2004, an individual broke a window in Defendant's home, causing damages in the approximate amount of $50.00. 54. In December of 2004, an individual cut Defendant's lace tablecloth while it was hanging on her clothesline, causing damages in an approximate amount of $20.00. 55. In the spring of 2004 and in the fall of 2003, an individual cut and destroyed the guide strings to Defendant's outside blinds, causing damages in an approximate amount of $25.00. 56. In the summer of 2004, an individual turned Defendant's amber spotlight, which was turned on and positioned on Defendant's property, up side down into the bark of the yard. 57. The next day, an individual pulled the amber bulb in the aforementioned spotlight out of the socket, causing damages in an approximate amount of $8.00. 58. Defendant replaced the said bulb at an approximate cost of $8.00. 59. Soon thereafter, an individual broke the said bulb, causing damages at an approximate cost of $8.00. 60. Defendant again replaced the bulb. 61. In November of 2003, an individual threw pumpkin seeds on Defendant's porch. 62. Defendant sold the house in August 2005, and moved at an approximate cost of $500.00. 63. Plaintiff has failed to set a claim upon which relief may be granted. 64. Plaintiff has failed to join an indispensable party. 65. Plaintiff has failed to mitigate her damages, if any. 66. Plaintiff may be barred in whole or in part by the applicable Statute of Limitations. 67. Plaintiff may be barred in whole or in part by the principle of res judicata. 68. Plaintiffs claim may be barred by the estoppel, waiver and laches. 69. Plaintiff's claim may be barred by the Principles of Accord and Satisfaction. 70. Plaintiffs claim may be barred by the doctrine of payment. 71. Plaintiff voluntarily assumed the risk of the facts set forth in this Complaint and accordingly his claim is barred. 72. Plaintiffs claim may be barred and limited by the doctrines of comparative negligence and/or assumption of the risk. 73. No conduct of the Defendant or agent of the answering Defendant resulted in or is the proximate cause of any injury or damage sustained by the Plaintiff. 74. Any injuries and/or damages claimed by the Plaintiff, if proven, were caused by persons other than answering defendant and not within the control of answering defendant. 75. At all material times hereto answering defendant acted reasonably, appropriately and caused no injuries or damage to plaintiff. 76. Any harm suffered by the Plaintiff arose out of her own non- performance of the essential obligations. COUNT I - NUISANCE 77. Defendant incorporates by reference Paragraphs 1-76 hereto, as if fully set forth herein. 78. Plaintiff's intentional acts have caused an invasion of Defendant's private use and enjoyment of the property she once owned located at 36S.27 th Street, Camp Hill, PA. WHEREFORE, the Defendant requests this Court to: (a) order Plaintiff to pay $500.00 damages, plus interest and costs; and/or (b) grant such other relief as this Court may deem appropriate and just. COUNT 11 - TRESPASS 79. Defendant incorporates by reference Paragraphs 1-76 hereto, as if fully set forth herein. 80. Plaintiff intentionally invaded the property located at 36 S. 27th Street, Camp Hill, PA, when Defendant owned said property. 81. Defendant avers upon information and belief that Plaintiffs acts rise to the level of trespass. WHEREFORE, the Defendant requests this Court to: (a) order Plaintiff to pay $311.00 damages, plus interest and costs; and/or (b) grant such other relief as this Court may deem appropriate and just. COUNT III - PRESCRIPTIVE EASEMENT 82. Defendant incorporates by reference Paragraphs 1-80 hereto, as if fully set forth herein. 83. The hemlock tree located on the property previously owned by Defendant encroached openly, notoriously, hostilely, and continually on the property now owned by plaintiff for a period in excess of 21 years. 84. Defendant avers upon information and belief that a prescriptive easement in the airspace in which the said tree hangs has been created. WHEREFORE, the Defendant requests this Court to: (a) dismiss Plaintiffs nuisance action for the alleged overgrowth of Defendant's tree; and/or (b) grant such other relief as this Court may deem appropriate and just. Respectfully submitted, LAW OFFICE OF PETER J. RUSSO, P.C. Attorneys for Defendant Peter J. R s o, squire Attorney I. 1Y No. 72897 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 200139 3800 Market Street Camp Hill, PA 17011 717-591-1755 DATE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL V. JUDITH KREBS, Defendant VERIFICATION 1, r LtO I TJf REF S verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. § 4904 relating to unsworn falsification to authorities. Dated: I 13 6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL V. JUDITH KREBS, Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of DEFENDANT'S ANSWER TO PLAINTIFF'S AMENDED COMPLAINT AND DEFENDANT'S NEW MATTER upon the following person, in the manner indicated: FIRST CLASS MAIL Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 LAW OFFICE OF PETER J. RUSSO, P.C. Attorneys for Defendant B Y:: Elizabeth y! Saylor, Esquire Attorney I.D. No. 200139 DATE: ?,_> r'? l} ?1 i ? c. - ??? `^ i 7 ( _) .?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, No: 05-3246 CIVIL TERM vs. JUDITH KREBS Defendant PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER 34. This incorporation paragraph is a statement to which no response is required. 35. It is admitted that there have been ongoing disputes between Plaintiff and Defendant for some time. However, Plaintiff is unsure of the exact time frame. It is denied that there is any relevance in this proceeding of disputes beyond those set forth in the Amended Complaint. 36. Plaintiff does not know when Defendant moved into her home but admits that Defendant left that home in August 2005. 37. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. Plaintiff denies the relevance of Defendant's previous relationships with her neighbors at 2700 Market Street. 38. Denied. Plaintiff is aware of a previous dispute between Defendant and a prior owner of Plaintiffs house. Notwithstanding this denial of fact, Plaintiff denies the relevance of Defendant's relationships with prior or other neighbors. 39. Denied in part. Plaintiff believes that Defendant's porch was rebuilt and Defendant's fence placed in such a way so that all water flowing over the gutters would flow onto Plaintiffs property. 40. It is admitted that the hemlock tree preexisted Plaintiffs residence at 2700 Chestnut Street. However, Plaintiff denies the relevance of the hemlock tree's presence prior to the time Plaintiff lived at 2700 Chestnut Street as it does not relate to the claim made in the Amended Complaint. 41. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, Plaintiff denies the relevance of whether the hemlock tree entered the airspace of 2700 Chestnut Street prior to the time that Plaintiff lived there. 42. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 43. It is admitted that Plaintiff periodically played a radio in her house, sometimes with the windows ajar. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 44. Denied. Furthermore, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 2 45. It is admitted that Plaintiff periodically raked debris off of her sidewalk. It is denied that this was done for the reasons indicated by Defendant. Furthermore, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 46. It is admitted that periodically Plaintiff and Defendant would engage in verbal argument and that, at times, unkind things would be said on both sides. It is denied that this averment has any relationship to Plaintiffs claims in the Amended Complaint and it is, therefore, irrelevant. 47. Denied. Furthermore, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 48. Admitted. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 49. Admitted. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 50. Denied. Furthermore, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 51. It is denied that Plaintiff intentionally raked leaves onto Plaintiffs sidewalk. It is admitted that it is possible that after Plaintiff raked leaves to the side of her property, and before she had an opportunity to bag them, that they blew onto Defendant's property. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 52. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no 3 relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 53. It is specifically denied that Plaintiff had any role in breaking Defendant's window. Plaintiff is aware that children broke the window on a different day than Defendant states. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 54. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 55. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 56. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 57. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 4 58, Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 59. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 60. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 61. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 62. Plaintiff does not have information sufficient to form a belief as to the truth of the matter asserted in this paragraph. However, this averment has no relationship to Plaintiffs claims in the Amended Complaint and is, therefore, irrelevant. 63. Denied. By way of further answer, the defense of failure to state a claim upon which relief can be granted must be asserted as part of preliminary objections. 5 64. Denied. 65. Denied. 66. Denied. 67. Denied. 68. Denied. 69. Denied. 70. Denied. 71. Denied. 72. Denied. 73. Denied. 74. Denied. 75. Denied. 76. Denied. 6 WHEREFORE, Plaintiff respectfully submits that Defendant's New Matter should be denied. Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tbemer0bergerlawfirm.net VERIFICATION I, Randee McQuown, affirm that I am the Plaintiff in this action and that the statements of fact made in the foregoing Plaintiffs Reply to Defendant's New Matter are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. & 4904 relating to unsworn falsification to authorities. Date: January 20, 2006 Randee McQuown CERTIFICATE OF SERVICE I hereby certify that I have this day filed the foregoing Plaintiffs Reply to Defendant's New Matter, upon the following person and in the manner indicated. BY FIRST CLASS MAIL Peter J. Russo, Esq. 3800 Market Street Camp Hill, PA 17011 Date: January 23, 2006 Edmund J. Berger "2 n _ . _.,, 5.,, . 1. - .. r, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff. VS. JUDITH KREBS No: 05-3246 CIVIL TERM Defendant PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM 1. On June 27, 2005, Plaintiff filed a Notice of Appeal in the above- captioned matter with the Prothonotary of Cumberland County. 2. Service of Plaintiffs Notice of Appeal was made on June 27, 2005 by certified mail. A signed receipt of the Notice of Appeal was obtained by the United States Postal Service from the Defendant, Judith Krebs on July 5, 2005. 3. On July 18, 2005, Plaintiff served a Complaint with a Notice to Defend upon the Defendant Judith Krebs in accordance with the legal requirements to file a complaint within 20 days of the Notice of Appeal. Service of the Complaint was made by mail in accordance with the rules and contained a Certificate of Service. 4. On August 3, 2005, Defendant's counsel filed a Praecipe to Dismiss this Appeal pursuant to Rule 1006 because Plaintiff had failed to file Proof of Service of the Notice of Appeal within 10 days of filing the Notice: of Appeal. 5. Subsequently, Plaintiff filed a Motion to Reinstate Appeal, which was granted by Order of this Court on November 18, 2005. 6. Preliminary objections were filed to Plaintiff's Complaint by Defendant on December 8, 2005 7. Subsequently, Plaintiff filed an Amended Complaint on December 27, 2005, which mooted such preliminary objections. 8. On January 17, 2006, Defendant filed a pleading titled "Answer and New Matter," consisting of 84 numbered paragraphs. Paragraphs 1 - 33 respond to the numbered paragraphs of Plaintiffs Amended Complaint. Paragraphs 34- 76 present Defendant's New Matter. Paragraphs 77-84 are titled Count I - Nuisance, Count II - Trespass, and Count III - Prescriptive Easement. These three counts purport to present a Counterclaim although no pleading titled "Counterclaim" is indicated. 9. Under the Rules of Civil Procedure Governing Actions and Proceedings Before Magisterial District Judges (Pa.R.C.P.M.D.J.), Rule 1004(C), when judgments have been rendered on complaints of both the appellant and appellee and the appellant appeals from the judgment on his complaint but not from the judgment on the appellee's complaint, "the appellee may appeal from the judgment on his complaint at any time within (30) days after the date on which the appellant served a copy of his notice of appeal upon the appellee." 2 t 10. According to the note to Rule 1004(C) of Pa.R.C.P.M.D.J., although a counterclaim may be filed in response to Plaintiffs Complaint, for such counterclaim to be asserted, Notice of Appeal must still have been given by Appellee under Rule 1004(C) within 30 days of Appellant's service of his Notice of Appeal on Appellee. Since Plaintiff (Appellant) served a Notice of Appeal by certified mail on June 27, 2005 and a receipt was made of such notice on July 5, 2005, Appellee arguably had until August 4, 2005 to file a Notice of Appeal. 11. No Notice of Appeal was filed or served by Appellee on or before August 4, 2005. 12. In accordance with the Rules of Civil Procedure, Defendant can assert no counterclaim since such counterclaim was not preserved by the filing of a Notice of Appeal. Consequently, no action exists to which the Counterclaim may relate, WHEREFORE, Plaintiff respectfully moves for the dismissal of the Counterclaim asserted improperly in Paragraphs 77-84 of Defendant's Answer and New Matter. Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tberger(@berger a Virm.net 3 CERTIFICATE OF SERVICE I hereby certify that I have this day filed the foregoing Plaintiffs Preliminary Objections to Defendant's Counterclaim, upon the following person and in the manner indicated. BY FIRST CLASS MAIL Peter J. Russo, Esq. 3800 Market Street Camp Hill, PA 17011 Date: January 23, 2006 _) :{ a f? f.M1? ?? `„ Law Offices of Peter J. Russo, P.C. By: Elizabeth J. Saylor, Esquire Attorney I.D. No. 200139 3800 Market Street Camp Hill, PA 17013 (717)591-1755 (717) 591-1756 Facsimile Attorneys for Judith Krebs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL V. JUDITH KREBS, JURY TRIAL DEMANDED Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. This paragraph calls for a legal conclusion as the Rule speaks for itself. Defendant denies to the extent any answer is required. 10. This paragraph calls for a legal conclusion as the Rule speaks for itself. Defendant denies to the extent any answer is required. 11. Admitted. 12. Denied. Defendant should be permitted to assert a counterclaim because: a. The facts set forth in Defendant's District Justice "counterclaim" do not amount to a claim and therefore no preservation is required; b. The facts set forth in Defendant's District Justice "counterclaim" are different from allegations averred in Defendant's New Matter and therefore no preservation is required; c. The Defendant did not have the opportunity to fully present the merits of her case at the District Justice level; d. The applicable law and the interest of justice require that Defendant be permitted to pursue her counterclaim; and e. Alternatively, Pa. R. Civ. P. 126 allows the trial court to overlook any procedural error that does not affect the substantial rights of the parties. WHEREFORE, Defendant, Judith Krebs, respectfully request this Court enter an Order dismissing Plaintiffs Preliminary Objections to Defendant's Counterclaim and requiring Plaintiff to respond to Paragraph 77-84 of Defendant's Answer and New Matter. Respectfully submitted, LAW OFFICE OF PETER J. RUSSO, P.C. Attorneys for Defendant eterJ.,Ry o, squire Attorney I.D. No. 72897 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 200139 3800 Market Street Camp Hill, PA 17011 717-591-1755 DATE: ; _;Y_o6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL V. JUDITH KREBS, Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of Defendant's Answer to Plaintiffs Preliminary Objections to Defendant's Counterclaim upon the following person, in the manner indicated: FIRST CLASS MAIL Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 LAW OFFICE OF PETER J. RUSSO, P.C. Attorneys for Defendant /. BY: Elizabeth J. Saklor,//'Esquire Attorney I.D. No.?00139 DATE: " % O ?? r, r"i i i j -T I ^t'1 -? f.?.l -.. -z.. . , lJ_ L ,li:. I -ri: ': CJ -"_ Yr!(1 C'-. ? 'D l C? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff V. JUDITH KREBS, JURY TRIAL DEMANDED Defendant No. 05-3246,2005 Term State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Preliminary Objections to Defendant's Counterclaim. 2. Identify counsel who will argue cases: (a) for plaintiff: Edmund J. Berger, Esquire, 2104 Market St., Camp Hill, PA. (b) for defendant: Elizabeth J. Saylor, Esquire, 3800 Market St. Camp Hill, PA. 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: 3800 Market Street Camp Hill, PA 17011 Attorney for Defendant Dater ?? Law Offices of Peter J. Russo q,.] 4 ) ?r ? ?I _.? ? S"rl r'i v,l . 1 4a ?- YC2 "y CS'; .. _,,, fi RANDEE MCQUOWN Plaintiff V. JUDITH KREBS Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY., PENNSYLVANIA NO. 2005 - 3246 CIVIL TE12M IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM BEFORE BAYLEY, GUIDO, JJ. ORDER OF COURT AND NOW, this/ 7-e' day of APRIL, 2006, after having reviewed the briefs filed by the parties, and having heard argument thereon, Plaintiffs Preliminary Objections are GRANTED and Defendant's Counterclaim is the Edward E. Guido, J. ,-6mund J. Berger, Esquire 2104 Market Street Camp Hill, Pa. 17011 ,/r.tizabeth J. Saylor, Esquire 3800 Market Street Camp Hill, Pa. 17011 :sld d -- l0 $0,0 a' 0 RANDEE MCQUOWN Plaintiff V. JUDITH KREBS Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 3246 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM MEMORANDUM OPINION AND ORDER The parties filed cross complaints against each other before Magisterial District Judge Robert Manlove. Judgment was entered in favor of defendant: Judith Krebs in connection with plaintiff s complaint. Plaintiff filed the instant appeal from that judgment. Magisterial District Judge Manlove found in favor of Randee McQuown in connection with the cross complaint filed by Judith Krebs. Ms. Krebs did not appeal that decision. Rather, she merely raised those issues in a counterclaim to the complaint filed by plaintiff in connection with the instant appeal. Plaintiff contends that the counterclaim must be dismissed because defendant did not appeal from Judge Manlove's decision on her cross complaint as required by Rule 1004(c) of the Pennsylvania Rules of Civil Procedure for Magisterial District Judges. We must agree. The procedure for appealing from a Magisterial District Judge's decision on cross complaints is set forth in Pa. R.C.P. M.D.J. 1004. Subdivision C provides as follows: NO. 2005 - 3246 CIVIL TERM When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within thirty (30) days after the date on which the appellant served a copy of his notice of appeal upon the appellee. Since it uses the term "may", the rule would seem to be discretionary with regard to the need for appellee to file a notice of appeal in order to pursue a counterclaim. However, the comment to the rule makes clear that the requirement is mandatory. Subdivision C permits the appellee, when there were cross- complaints in the action before the magisterial district judge and the appellant appeals from the judgment on his complaint or on both complaints, to assert his claim by way of a counterclaim in the court of common pleas if the claim is cognizable as a counterclaim in that court. However, even when this procedure is permissible, the appellee must, if he desires to use it, still give a notice of appeal under Rule 1002 with the time extension allowed by subdivision C ... if he intends to appeal from the judgment on his complaint and the appellant has not appealed from that judgment.... See comment to Pa. R.C.P.M.D.J. 1004 (emphasis added). In American Appliance v. E. W. Real Estate 564 Pa. 473, 769 A.2d 444 (2001) the Pennsylvania Supreme Court was called upon to interpret the language of the Rule at issue. It said "Rule 1004.C only requires a separate notice of appeal if the appellee wishes to appeal from judgment on the appellee's complaint and the appellant has not appealed that judgment." (emphasis in original) 769 A.2d 447. Since that is the exact factual scenario before us, we must grant plaintiff's preliminary objections and dismiss the defendant's counterclaim. NO. 2005 - 3246 CIVIL TERM ORDER OF COURT AND NOW, this 17TH day of APRIL, 2006, after having reviewed the briefs filed by the parties, and having heard argument thereon, Plaintiff's Preliminary Objections are GRANTED and Defendant's Counterclaim is DISMISSED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Edmund J. Berger, Esquire 2104 Market Street Camp Hill, Pa. 17011 Elizabeth J. Saylor, Esquire 3800 Market Street Camp Hill, Pa. 17011 sld J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff VS. No: 05-3246 CIVIL TERM JUDITH KREBS, Defendant PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Edmund J. Berger , counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of Plaintiff in the action is for approximately $37,300 plus interest, and court fees and costs. However, Plaintiff is voluntarily reducing its claim to the arbitration limit of $35,000 in order to allow for arbitration of this matter. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: None of which Plaintiff is currently aware. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, Edmund J. Berger Attomey I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tbergerAbergerlawfiirm.net --2-- CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Petition for Appointment of Arbitrators, upon the following person and in the manner indicated. BY FIRST CLASS MAIL Peter J. Russo, Esq. 3800 Market Street Camp Hill, PA 17011 Date: July 21, 2006 . ?..., i -- _ t:7?? `E-i 0 -? -. _ T b , ?, _ .__, _ _ --? 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff VS. JUDITH KREBS, No: 05-3246 CIVIL TERM Defendant ORDER OF COURT AND NOW, I , 2006, in consideration of the foregoing petition,h . Q Esq., and OUMADA) C . Esq. and h ft %0" ljA:4j& Esq., are appointed arbitrators in the above- captioned action as prayed for. EDGAR B. BAYLEY 1.' =1'1 ! ? '.,i f ? ??1 ?? .:; ?1.:?,.. ? .,,_' LAW OFFICES OF PETER J. RUSSO, P.C. Attorney for Defendant The Chelsea Building 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff V. JUDITH KREBS, No. 05-3246,2005 Term Defendant CERTIFICATE OF SERVICE I, Janet E. Bush, hereby certify that I am on this day serving a copy of a Request for Production of Documents and Contention Interrogatories documents upon the person (s) and in the manner indicated below: Service by First-Class Mail, Postage Prepaid, and Addressed as follows: Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 Date: J'- Law Offices of Peter J. Russo,P.C. E- / By: J E. Bush, Paralegal 3 00 Market Street Camp Hill, PA 170113 (717) 591-1755 ?' G ? ' ?? am -c??,;'`? G -, .? ? ?Y - , N ? ?a ; , ?' ` ?; - om,.-. s: -n ; C j C 7 . .+ t , "° ^ U ? s ? 'I:J f N ..- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff V. JUDITH KREBS, No. 05-3246,2005 Term Defendant NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION UNDER RULE 4007.1.42 Pa. C.S.A OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE NOTICE IS HEREBY GIVEN, pursuant to Pennsylvania Rule of Civil Procedure 4007.1, 42 Pa. C.S.A., that the deposition of Randee McQuown of 2700 Chestnut Street, Camp Hill, Pennsylvania 17011, will be taken on oral examination at the Law Offices of Peter J. Russo, P.C, located at 3800 Market Stmt, Camp Hill, Pennsylvania 17011 on September 20, 2006 at 1:00 P.M. and at any and all adjournments thereof. You are hereby directed to bring with you all documents relating to the above stated action. By: Elizabeth J. Saylor, Esquire I.D.# 200139 3800 Market Street Camp Hill, PA 17011 Attorney for Defendant ?-?-06 Date: LAW OFFICES OF PETER J. RUSSO, P.C. The Chelsea Building 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff V. JUDITH KREBS, No. 05-3246,2005 Term Defendant CERTIFICATE OF SERVICE I, Elizabeth J. Saylor, Esquire, hereby certify that I am on this day serving a copy of the Notice of Taking Deposition document upon the person (s) and in the manner indicated below: Service by First-Class Mail, Postage Prepaid, and Addressed as follows: Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 Law Offices of Peter J. Russo, P.C. By: Elizabeth J. Saylor 3800 Market Street Camp Hill, PA 170113 i ,?'. p rv (717) 591-1755 Date: Cn ? ? U' .-V - '?i 'C ^!-? n r? ?. c- ;,r?? "? -?'n? =1 " ?? {-. U;?? - r ... ' ?? ? ? J ?D IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the Defendant's Answer to Plaintiff's First Request for Production of Documents, upon the following person, in the manner indicated: HAND DELIVERY TO: Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 DATE: ?6-LA -dam Q Ja RE. Bush Cyl ' .,. , G7 ? M "t7 t ,j IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff VS. JUDITH KREBS, Defendant : No. 05-3246 CIVIL CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the Defendant's Answer to Plaintiff's First Set of Interrogatories, upon the following person, in the manner indicated: HAND DELIVERY TO: Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 (l 64 0 DATE: L'1 It E. Bush v 45'1..' ?ry 7+r t .- cp Y?? r IM1 it N? w LAW OFFICES OF PETER J. RUSSO, P.C. BY: Peter J. Russo, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff Vs. JUDITH KREBS, Defendant No. 05-3246 CIVIL DEFENDANT'S MOTION TO COMPEL PLAINTIFF TO SUBMIT TO A PSYCHIATRIC EXAMINATION AND NOW COMES, Defendant, Judith Krebs, through her attorneys, The Law Offices of Peter J. Russo, P.C. respectfully request that this Court compel Plaintiff Randee McQuown, to submit to a psychiatric examination. In support of this request, Defendant avers the following: 1. This is an action in which the Plaintiff is alleging thousands of dollars of damage to her property, which is adjacent to the property previously owned by Defendant. 2. Plaintiff commenced the above-captioned lawsuit by filing a complaint on July 18, 2005, naming Judith Krebs as the Defendant. . Al. 46 3. Plaintiff filed an Amended Complaint on December 27, 2005. 4. Plaintiff has alleged, under oath, that as result of the alleged misconduct of Defendant, Plaintiff had to seek psychiatric attention. 5. The scope of discovery is codified in Pa.R.C.P. 4003.1, and it states: "(a) [A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action... (b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Pa.R.C.P. 4003.1. 6. The purpose for the inspection is to obtain an expert opinion as to the alleged psychiatric harm endured by Plaintiff concerning this matter. 7. The information sought by the requested examination is relevant and appears reasonably calculated to lead to the discovery of admissible evidence, pursuant to Pa.R.C.P. 4003.1. 8. The motion requested is not sought in bad faith and would not cause unreasonable annoyance, embarrassment, oppression, burden or expense to Plaintiff. 9. Pursuant to C.C.R.P. 208.3(a)(2) Petitioner certifies that (1) the Honorable Judge Hess issued an Order on November 18, 2005 (In Re: Motion to Reinstate Appeal before Hess and Oler, JJ.) and (2) the Honorable Judge Guido issued an Order on April 17, 2006, (In Re: Plaintiffs Preliminary Objections to Defendant's Counterclaim before Bayley and Guido, JJ.). 10. Pursuant to C.C.R.P. 208.3(a)(9), Counsel for Defendant Judith Krebs, hereby certifies that he has conferred with attorney for Plaintiff Randee McQuown in a good faith effort to resolve the issue raised by the above Motion to Compel Plaintiff to Submit to a Psychiatric Examination, and after reasonable efforts, has been unable to resolve this discovery dispute. 11. During the deposition of Randee McQuown on Tuesday, October 10, 2006, Counsel for Defendant made a request on the record seeking Plaintiff's voluntary submission to a psychiatric examination, at which time Plaintiffs counsel denied Defendant's request. WHEREFORE, Defendant respectfully requests this Honorable Court to grant its motion to compel. rezer J. rwsso, tsquire Attorney I . D. No. 72897 John N. Papoutsis, Esquire Attorney I.D. No. 70312 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 20013 Attorneys for Defendant 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Date: Tuesday, October 10, 2006 THE LAW OFFICE OF PETER J. RUSSO, P.C. LAW OFFICES OF PETER J. RUSSO, P.C. BY: Peter J. Russo, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. : JUDITH KREBS, Defendant : VERIFICATION I, Judith Krebs, verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: 16 If o b {4iihh o Krebs, Defendant r - LAW OFFICES OF PETER J. RUSSO, P.C. BY: Peter J. Russo, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL Vs. • JUDITH KREBS, : Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the Defendant's Motion to Compel Plaintiff to Submit to a Psychiatric Examination, upon the following person, in the manner indicated: HAND DELIVERY AND FIRST CLASS MAIL Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 Peter J. Russo, Esquire Date: Tuesday, October 10, 2006 r%a Q 5. r", co Cil -?C . ; •` LAW OFFICES OF PETER J. RUSSO, P.C. BY: Peter J. Russo, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff Vs. JUDITH KREBS, Defendant No. 05-3246 CIVIL DEFENDANT'S MOTION TO COMPEL PLAINTIFF TO PROVIDE DEFENDANT WITH ALL RELATED MEDICAL RECORDS FOR INSPECTION AND NOW COMES, Defendant, Judith Krebs, through her attorneys, The Law Offices of Peter J. Russo, P.C. respectfully request that this Court compel Plaintiff Randee McQuown, to provide Defendant with related medical records. In support of this request, Defendant avers the following: 1. This is an action in which the Plaintiff is alleging thousands of dollars of damage to her property, which is adjacent to the property previously owned by Defendant. 2. Plaintiff commenced the above-captioned lawsuit by filing a complaint on July 18, 2005, naming Judith Krebs as the Defendant. 3. Plaintiff filed an Amended Complaint on December 27, 2005. 4. Plaintiff has alleged, under oath, that as result of the alleged misconduct of Defendant, Plaintiff had to seek both psychiatric and physical medical attention. 5. The scope of discovery is codified in Pa.R.C.P. 4003.1, and it states: "(a) [A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...(b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Pa.R.C.P. 4003.1. 6. The purpose for this request is to obtain records of any physical and mental harm Plaintiff alleged to have endured due, in whole or in part, to Defendant's actions. 7. The information sought is relevant and appears reasonably calculated to lead to the discovery of admissible evidence, pursuant to Pa.R.C.P. 4003.1. 8. The motion requested is not sought in bad faith and would not cause unreasonable annoyance, embarrassment, oppression, burden or expense to Plaintiff. 9. Pursuant to C.C.R.P. 208.3(a)(2) Petitioner certifies that (1) the Honorable Judge Hess issued an Order on November 18, 2005 (In Re: Motion to Reinstate Appeal before Hess and Oler, JJ.) and (2) the Honorable Judge Guido issued an Order on April 17, 2006, (In Re: Plaintiff's Preliminary Objections to Defendant's Counterclaim before Bayley and Guido, JJ.). 10. Pursuant to C.C.R.P. 208.3(a)(9), Counsel for Defendant Judith Krebs, hereby certifies that he has conferred with attorney for Plaintiff Randee McQuown in a good faith effort to resolve the issue raised by the above Motion to Compel, and after reasonable efforts, has been unable to resolve this discovery dispute. 11. During the deposition of Randee McQuown on Tuesday, October 10, 2006, Counsel for Defendant made a request on the record seeking permission to obtain all of Plaintiffs related medical records via a HIPAA release, including both psychiatric and physical records, at which time Plaintiffs counsel denied Defendant's request. WHEREFORE, Defendant respectfully requests this Honorable Court to grant its motion to compel. THE LAW OFFICE OF PETER J. RUSSO, P.C. Peter J. Russo, Esquire Attorney I . D. No. 72897 John N. Papoutsis, Esquire Attorney I . D. No. 70312 Scott A Stein, Esquire Attorney I . D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 20013 Attorneys for Defendant 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Date: Tuesday, October 10, 2006 4k . LAW OFFICES OF PETER J. RUSSO, P.C. BY: Peter J. Russo, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant VERIFICATION I, Judith Krebs, verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: 16LtoloG J dith Krebs, Defendant i .. . LAW OFFICES OF PETER J. RUSSO, P.C. BY: Peter J. Russo, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the Defendant's Motion to Compel Plaintiff to Provide Defendant with All Related Medical Records for Inspection, upon the following person, in the manner indicated: HAND DELIVERY AND FIRST CLASS MAIL Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 Peter J. Russo, Esqui Date: Tuesday, October 10, 2006 N ' ?t g n f ? a_ LAW OFFICES OF PETER J. RUSSO, P.C. BY: Peter J. Russo, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff VS. JUDITH KREBS, Defendant No. 05-3246 CIVIL DEFENDANT'S MOTION TO COMPEL ACCESS TO PLAINTIFF'S HOME FOR INSPECTION AND NOW COMES, Defendant, Judith Krebs, through her attorneys, The Law Offices of Peter J. Russo, P.C. respectfully request that this Court compel Plaintiff Randee McQuown, through her attorney Edmund J. Berger, Esquire, to allow Defendant access to inspect Plaintiffs property. In support of this request, Defendant avers the following: 1. This is an action in which the Plaintiff is alleging thousands of dollars of damage to her property, which is adjacent to the property previously owned by Defendant. 2. Plaintiff commenced the above-captioned lawsuit by filing a complaint on July 18, 2005, naming Judith Krebs as the Defendant. 3. Plaintiff filed an Amended Complaint on December 27, 2005. 4. In September 2006 Defendant's counsel verbally requested approval from Plaintiffs counsel to inspect Plaintiffs property in order to obtain an expert opinion on the damages alleged in Plaintiffs complaint. 5. Receiving no response, on or about October 2, 2006, Plaintiff's counsel was verbally informed that if no approval was given by October 6, 2006, then Defendant's counsel would proceed by filing a Motion to Compel. 6. Plaintiffs counsel has not given the requested approval to inspect Plaintiff's property. 7. The scope of discovery is codified in Pa.R.C.P. 4003.1, and it states: "(a) [A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action... (b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Pa.R.C.P. 4003.1. 8. The purpose for the inspection is to obtain an expert opinion as to the damage to Plaintiffs property and cause of any damage. 9. The information sought by the inspection is relevant and appears reasonably calculated to lead to the discovery of admissible evidence, pursuant to Pa.R.C.P. 4003.1. 10. The access requested is not sought in bad faith and would not cause unreasonable annoyance, embarrassment, oppression, burden or expense to Plaintiff. 11. Pursuant to C.C.R.P. 208.3(a)(2) Petitioner certifies that (1) the Honorable Judge Hess issued an Order on November 18, 2005 (In Re: Motion to Reinstate Appeal before Hess and Oler, JJ.) and (2) the Honorable Judge Guido issued an Order on April 17, 2006, (In Re: Plaintiff's Preliminary Objections to Defendant's Counterclaim before Bayley and Guido, JJ.). 12. Pursuant to C.C.R.P. 208.3(a)(9), Counsel for Defendant Judith Krebs, hereby certifies that he has conferred with attorney for Plaintiff Randee McQuown in a good faith effort to resolve the issue raised by the above Motion to Compel Inspection of Plaintiffs Property, and after reasonable efforts, has been unable to resolve this discovery dispute. 13. During the deposition of Randee McQuown on Tuesday, October 10, 2006, Counsel for Defendant made a request on the record seeking permission to conduct an inspection of Plaintiff's property at which time Plaintiff's counsel denied Defendant's request. WHEREFORE, Defendant respectfully requests this Honorable Court to grant its motion to compel inspection to Plaintiff's property. THE LAW OFFICE OF PETER J. RUSSO, P.C. Peter J. Russo, Esquire Attorney I.D. No. 72897 John N. Papoutsis, Esquire Attorney I.D. No. 70312 Scott A Stein, Esquire 0- Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 20013 Attorneys for Defendant 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Date: Tuesday, October 10, 2006 LAW OFFICES OF PETER J. RUSSO, P.C. BY: Peter J. Russo, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL Vs. JUDITH KREBS, ; Defendant VERIFICATION I, Judith Krebs, verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. 0 Date: 161161 , LAW OFFICES OF PETER J. RUSSO, P.C. BY: Peter J. Russo, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL Vs. • JUDITH KREBS, : Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the Defendant's Motion to Compel Access to Plaintiffs Home for inspection, upon the following person, in the manner indicated: HAND DELIVERY AND FIRST CLASS MAIL Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 Peter J. Russo, Esquire Date: Tuesday, October 10, 2006 co N ?? RANDEE MCQUOWN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-3246 CIVIL JUDITH KREBS, Defendant IN RE: DEFENDANT'S MOTION TO COMPEL ACCESS TO PLAINTIFF'S HOME FOR INSPECTION ORDER AND NOW, this Z o day of October, 2006, a brief argument on the defendant's motion to compel access to plaintiffs home for inspection is set for Friday, November 17, 2006, at 11:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. :rlm , BY THE COURT, 'Edmund J. Berger, Esquire Z For the Plaintiff eter J. Russo, Esquire For the Defendant , BY THE COURT, f ?-F dZ NU 3}41 4U RANDEE MCQUOWN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-3246 CIVIL JUDITH KREBS, : Defendant IN RE: DEFENDANT'S MOTION TO COMPEL PLAINTIFF TO PROVIDE DEFENDANT WITH ALL RELATED MEDICAL RECORDS ORDER AND NOW, this Zo - day of October, 2006, a brief argument on the defendant's motion to compel plaintiff to provide defendant with all related medical records is set for Friday, November 17, 2006, at 11:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Hess, J. Xmund J. Berger, Esquire F For the Plaintiff /e-ter J. Russo, Esquire For the Defendant :rlm J ik? ?0 :1 Hd 0Z 130 9,30Z T}i Ai?l?a'r?1 ?ci 114130 RANDEE MCQUOWN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 05-3246 CIVIL JUDITH KREBS, Defendant IN RE: DEFENDANT'S MOTION TO COMPEL PLAINTIFF TO SUBMIT TO A PSYCHIATRIC EXAMINATION ORDER AND NOW, this z (3' day of October, 2006, a brief argument on the defendant's motion to compel psychiatric examination is set for Friday, November 17, 2006, at 11:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. /dmund J. Berger, Esquire For the Plaintiff eter J. Russo, Esquire For the Defendant J :rlm BY THE COURT, Q- 90 : ? t4j- OZ 100 90oz vUAH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, vs. No: 05-3246 CIVIL TERM JUDITH KREBS Defendant PLAINTIFF'S MOTION TO QUASH DEFENDANT'S MOTION TO COMPEL A PSYCHIATRIC EXAMINATION OF PLAINTIFF AND NOW COMES Plaintiff, Randee McQuown, by and through her attorney, Berger Law Firm, P.C., and respectfully requests this Court to quash Plaintiff Judith Krebs' Motion to Compel Plaintiff to Submit to a Psychiatric Examination. In support of this Motion, Plaintiff respectfully submits as follows: 1. When the mental or physical condition of a party is in controversy, pursuant to Pennsylvania Civil Rules of Procedure Rule 4010, the Court, upon motion for good cause shown, may issue an order to require a party to submit to a physical or mental examination by an examiner. "The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made." 2. Defendant has failed to follow the appropriate procedures to request a mental or physical examination of Plaintiff and has failed to give sufficient notice to Plaintiff in accordance with Pa.R.C.P. Rule No. 4010. In particular, Defendant has not filed a motion evidencing good cause for the proposed examination and has not specified the time, place manner, conditions and scope of the examination and the person or persons by whom it is to be made. Accordingly, Defendant has not met the prerequisites for the Court to grant an order for a physical or mental examination. 3. This is a case largely sounding in nuisance and, although Plaintiff has alleged that Defendant's actions resulted in annoyance, inconvenience, upset, fear, loss of sleep, and loss of enjoyment of her property, the appropriateness of a physical or mental examination in such a case is questionable. Consequently, Plaintiff would likely oppose Defendant's Motion once it is properly sought pursuant to Rule 4010. 4. Defendant's failure to follow appropriate Court procedures, along with appropriate and specific written notice to Plaintiff, to obtain an Order for a mental or physical examination makes its Motion to Compel premature. Furthermore, simply because Defendant has made a verbal request (and been turned down), especially when its verbal request is so lacking in specificity, does not give it a right to file a Motion to Compel before adhering to appropriate Court procedures specifying the manner in which its requested relief can be obtained. 5. Consequently, Defendant's Motion to Compel is untimely, inappropriate and has caused annoyance and undue expense upon Plaintiff. 2 WHEREFORE, Plaintiff respectfully requests this Court quash Defendant's Motion to Compel and direct Defendant to follow the provisions of Pa.R.C.P. Rule 4010, including providing proper written notice to Plaintiff and the filing of a Motion for good cause shown. Telephone: (717) 920-8900 Facsimile: (717) 920-8901 E-mail: tberger@bergerlawfirm.net Date: November 1, 2006 3 Z i Uff nnarKet aireet Camp Hill, PA 17011 CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Plaintiffs Motion to Quash Defendant's Motion to Compel A Psychiatric Examination of Plaintiff, on the following person and in the manner indicated. BY FIRST CLASS MAIL Peter J. Russo, Esq. 3800 Market Street Camp Hill, PA 17011 Date: November 1, 2006 Edmund J. Berger IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN : Plaintiff, vs. No: 05-3246 CIVIL TERM JUDITH KREBS Defendant PLAINTIFF'S MOTION TO QUASH DEFENDANT'S MOTION TO COMPEL PRODUCTION OF PLAINTIFF'S MEDICAL RECORDS AND NOW COMES Plaintiff, Randee McQuown, by and through her attorney, Berger Law Firm, P.C., and respectfully requests this Court to quash Defendant Judith Krebs' Motion to Compel Plaintiff to Provide Defendant with All Related Medical Records for Inspection. In support of this Motion, Plaintiff respectfully submits as follows: 1. Pursuant to Pennsylvania Civil Rules of Procedure Rule 4009.11, a request for the production of documents and things "shall set forth in numbered paragraphs the items to be produced either by individual item or by category, and describe each item or category with reasonable particularity...." 2. Following service of a request for production of documents, the opposing party has thirty (30) days to answer and/ or object to the requested documents pursuant to Pa.C.R.P. 4009.12. 3. At the deposition of Plaintiff on October 10, 2006, Defendant made a verbal request for Plaintiff's medical records and indicated that they would file a Motion to Compel if agreement to provide such records was not forthcoming. See Defendant's Motion to Compel Plaintiff to Provide Defendant with All Related Medical Records for Inspection, Paragraph 11. 4. Defendant has not properly submitted a Request for Production of Documents pursuant to Rule 4009.11 and, consequently, the filing of a Motion to Compel is premature in that Plaintiff has not been given its proper opportunity to answer and/ or object to Defendant's request. 5. Furthermore, simply because Defendant has made a verbal request (and been turned down), does not give it a right to file a Motion to Compel before adhering to appropriate Court procedures specifying the manner in which its requested relief can be obtained. 6. For the above-stated reasons, Defendant's Motion to Compel Plaintiff to Provide Defendant with all Related Medical Records is untimely, inappropriate and has caused annoyance and undue expense upon Plaintiff. 2 WHEREFORE, Plaintiff respectfully requests this Court quash Defendant's Motion to Compel and direct Defendant to serve a Request for Production of Documents and follow other appropriate Court procedures. Respectfully submitted, Edmund J. Berger, Esq. 2104 Market Street Camp Hill, PA 17011 Telephone: (717) 920-8900 Facsimile: (717) 920-8901 E-mail: tberger@bergerlawfirm.net Date: November 1, 2006 3 CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Plaintiffs Motion to Quash Defendant's Motion to Compel Production of Plaintiffs Medical Records, on the following person and in the manner indicated. BY FIRST CLASS MAIL Peter J. Russo, Esq. 3800 Market Street Camp Hill, PA 17011 Date: November 1, 2006 ...4 .. r _, '? i ?.. _ '? <_; s i= 1 W . E ??. ':-? '"?'7 . ...., ? ?._... t,: :1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, vs. JUDITH KREBS Defendant No: 05-3246 CIVIL TERM PLAINTIFF'S MOTION TO QUASH DEFENDANT'S MOTION TO COMPEL ACCESS TO PLAINTIFF'S HOME FOR INSPECTION AND NOW COMES Plaintiff, Randee McQuown, by and through her attorney, Berger Law Firm, P.C., and respectfully requests this Court to quash Plaintiff Judith Krebs' Motion to Compel Access to Plaintiffs Home for Inspection. In support of such request, Plaintiff respectfully submits as follows: 1. The Pennsylvania Rules of Civil Procedure, Pa.R.C.P. Rule 4009.32, permit a party to request entry upon the property of another party. In doing so, the rules provide that the requesting party "shall describe with reasonable particularity the property to be entered and the activities to be performed." 2. Following service of such request, the opposing party is given thirty (30) days to object to the request pursuant to Pa.C.R.P. 4009.32(b). 3. As indicated in Defendant's Motion, although Defendant made a verbal request for inspection of Plaintiff's property, Defendant never made a written request. See Defendant's Motion to Compel Access to Plaintiffs Home for Inspection, Paragraph 4. Nor, Plaintiff would emphasize, did Defendant describe the activities to be performed with any particularity, the individuals who would be performing the inspection, or the purpose of the entry. 4. Defendant's failure to serve Plaintiff with a proper written request to inspect Plaintiffs home in accordance with the Pennsylvania Rules of Civil Procedure undermines the protections afforded by the Rules and interferes with Plaintiffs opportunity to evaluate Defendant's request and/or to submit appropriate objections or proposed modifications to the requested entry. 5. Furthermore, simply because Defendant has made a verbal request (and been turned down), especially when its verbal request is so lacking in specificity, does not give it a right to file a Motion to Compel before adhering to appropriate Court procedures specifying the manner in which its requested relief can be obtained. 6. Because Defendant has failed to comply with Pa.R.C.P. 4009.32, Defendant's Motion to Compel is untimely, inappropriate and has caused annoyance and undue expense to Plaintiff. 2 WHEREFORE, Plaintiff respectfully requests this Court quash Defendant's Motion to Compel and direct Defendant to serve a written request for entry pursuant to Pa.R.C.P. No. 4009.31-4009.32. Respectfully submitted, Edmun Q. Berger, Esq. 2104 Market Street Camp Hill, PA 17011 Telephone: (717) 920-8900 Facsimile: (717) 920-8901 E-mail: tberger@bergerlawfirm.net Date: November 1, 2006 3 CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Plaintiffs Motion to Quash Defendant's Motion to Compel Access to Plaintiffs Home for Inspection, on the following person and in the manner indicated. BY FIRST CLASS MAIL Peter J. Russo, Esq. 3800 Market Street Camp Hill, PA 17011 Date: November 1, 2006 Edmund J. Berger 3 T ? ? ; "'i ?J 1 --1 m F r ? ?? RANDEE MCQUOWN, Plaintiff V JUDITH KREBS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3246 CIVIL IN RE: DEFENDANT'S MOTION TO COMPEL ACCESS TO PLAINTIFF'S HOME FOR INSPECTION ORDER OF COURT AND NOW, this 17th day of November, 2006, it appearing that the defendant has not proceeded in accordance with Rule 4009.32, the motion to compel is dismissed. By the Court, Edmund J. Berger, Esquire For the Plaintiff Peter J. Russo, Esquire For the Defendant :bg ?_ 3 ???_i_? ?.,: E - RANDEE MCQUOWN, Plaintiff V JUDITH KREBS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3246 CIVIL IN RE: DEFENDANT'S MOTION TO COMPEL PLAINTIFF TO SUBMIT TO A PSYCHIATRIC EXAMINATION ORDER OF COURT AND NOW, this 17th day of November, 2006, the motion of the defendant to compel plaintiff to submit to a psychiatric examination is denied, with the understanding that the plaintiff will assert at trial testimony concerning general damages with respect to her mental health and will not proffer any psychiatric testimony or psychiatric diagnosis. By the Court, Edmund J. Berger, Esquire For the Plaintiff Peter J. Russo, Esquire -Cy" For the Defendant :bg CD V ? f 77 -71 RANDEE MCQUOWN, Plaintiff V JUDITH KREBS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3246 CIVIL IN RE: DEFENDANT'S MOTION TO COMPEL PLAINTIFF TO PROVIDE DEFENDANT WITH ALL RELATED MEDICAL RECORDS ORDER OF COURT AND NOW, this 17th day of November, 2006, in light of orders entered by this court of even date herewith, the defendant's motion to compel plaintiff to provide the defendant with certain medical records is dismissed as moot. By the Court, Edmund J. Berger, Esquire For the Plaintiff Peter J. Russo, Esquire For the Defendant ,Lcyp,?,?,,, .•rvua.Qc-d :bg r~, ti c--,x l..Y1 ? ? :' = °- t '?? --ct ?? - ??._; ?' ?, -.izl ??•? ...t.:l ^ti LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaintiff BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-'1756 Email: Isaylora-pirlaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendlant CERTIFICATE OF SERVICE I, Janet E. Bush, hereby certify that I am on this day serving the Notice of Intent to Serve a Subpoena to Produce Documents and Things for Discovery pursuant to Rule 4009.21, and a copy of the Subpoena to Produce Documents or Things for Discovent pursuant to Rule 4009.22 with an attached Notice and Certificate of Compliance, upon the person(s) and in the manner indicated below: US Mail addressed as follows: Edmund J. Berger, Esquire 2104 Market Street Came Hill, PA 17011 a"'M?E-djj J t E. Bush Date: 1-1 -010 C'7 rv -?! t-;rT cz ---s k zz C: r -? L IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, vs. No: 05-3246 CIVIL TERM JUDITH KREBS Defendant PLAINTIFF'S OBJECTIONS TO DEFENDANT'S REQUEST FOR ENTRY UPON PLAINTIFF'S PROPERTY FOR INSPECTION AND REQUEST FOR PROTECTIVE ORDER AND NOW COMES Plaintiff, Randee McQuown, by and through her attorney, Berger Law Firm, P.C., and respectfully objects to Defendant Judith Krebs' Inspection Request pursuant to Rule 4009.32, filed on November 21, 2006.. Additionally, pursuant to Rule 4012, Plaintiff respectfully requests a Protective Order be entered. In support of this Objection and Request for Protective Order, Plaintiff respectfully submits as follows: 1. The Pennsylvania Rules of Civil Procedure, Pa.R.C.P. Rule 4009.32, permit a party to request entry upon the property of another party. In doing so, the rules provide that the requesting party "shall describe with reasonable particularity the property to be entered and the activities to be performed." 2 2. In Defendant's request, she states that the activities to be performed are an inspection of "all of the property in which the Plaintiff avers within her Amended Complaint, Deposition Responses, Interrogatory Responses, and Dcoument Requests Responses, to be damaged due to an act or omission by the Defendant, which may include, but is not limited to: a. Plaintiffs concrete walkway for subsiding and causes thereof; b. The rear of Plaintiffs house for moisture damage and causes thereof; c. Plaintiffs yard for erosion and causes thereof; d. The basement of Plaintiffs house and the alleged damaged property within and causes thereof; e. Plaintiffs gutters or any other source of alleged water damages and causes thereof; f. The window in which Plaintiff alleged to be broken by snow and ice falling from the neighboring roof; g. The window(s) in which Plaintiff alleged Defendant's lights were shining into; h. Plaintiffs roof for damage allegedly caused by the hemlock tree; and i. Plaintiffs property line and the location of the fence, which is in dispute. 3. Defendant asserts that the activities to be performed are "anything deemed appropriate by the expert to prepare for trial, which may include, but are 3 not limited to, inspecting, testing, photographing, videotaping, and/or measuring." 4. By requesting inspection of property and activities to be performed with the phrase "includes, but is/are not limited to," Defendant has failed to describe its intended inspection and activities to be performed with reasonable particularity. Furthermore, while Plaintiff generally has no problem with inspecting, photographing, videotaping, and/or measuring of those areas of the home that are at issue, Defendant indicates that it may perform "testing" without providing any identification of what tests it may be performing. 5. By failing to identify the individuals who will be performing the inspection or the length of their visit, Defendant has failed to provide reasonable parameters for the requested inspection and Plaintiff is concerned that, rather than performing an inspection for the purpose of preparing for trial, that Defendant may be performing the inspection for the purpose of harassing Plaintiff. As this is an action sounding in trespass and nuisance, Plaintiffs concerns regarding the objectives of the inspection are related to the problematic history that exists between Plaintiff and Defendant. 6. Pursuant to Rule 4012, Plaintiff also respectfully requests that Defendant be required to specify the persons making the inspection and their qualifications for doing so, the time of the inspection and the length of the inspection. 4 7. Pursuant to Rule 4012, Plaintiff also respectfully requests that Defendant herself not be permitted to take part in the inspection and that such be left to Defendant's agents who are skilled inspectors. WHEREFORE, Plaintiff respectfully objects to the open-ended inspection request of Defendant pursuant to to Pa.R.C.P. No. 4009.31-4009.32 and requests that the Court enter a Protective Order requiring specification of the persons making the inspection and their qualifications, the time and length of the inspection, and enter an Order which prohibits Defendant from taking part in the inspection. Respectfully submitted, Edmund J. Berger, -E 2104 Market Street Camp Hill, PA 17011 Telephone: (717) 920-8900 Facsimile: (717) 920-8901 E-mail: tberger@bergerlawfirm.net Date: December 19, 2006 5 CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Plaintiffs Objections To Defendant's Request For Entry Upon Plaintiffs Property For Inspection And Request For Protective Order, on the following person and in the manner indicated. BY FIRST CLASS MAIL Peter J. Russo, Esq. Elizabeth Saylor, Esq. 3800 Market Street Camp Hill, PA 17011 Date: December 19, 2006 /(,//,(Y At Edmund J. Berger IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, VS. No: 05-3246 CIVIL TERM JUDITH KREBS Defendant PLAINTIFF'S OBJECTIONS TO SUBPOENA DIRECTED TO CAMP HILL BOROUGH POLICE PURSUANT TO RULE 4009.21 AND NOW COMES Plaintiff, Randee McQuown, by and through her attorney, Berger Law Firm, P.C., and respectfully objects to the proposed subpoena directed to the Camp Hill Borough Police, which is attached to these objections, for the following reasons: 1. The subpoena request is overly broad in requesting "any and all documents regarding disputes, problems or concerns, including but not limited to dispatch and Officer Reports relating to Randee McQuown ... " 2. This proceeding is a nuisance and trespass action relating to particular issues that have arisen between Plaintiff and Defendant and does not relate to disputes, problems or concerns that Plaintiff may have raised regarding matters not set forth in the complaint. 3. A subpoena request should be carefully tailored to obtain relevant information or that which is likely to lead to admissible evidence. Information about disputes, problems or concerns that Plaintiff may have raised about matters unrelated to the instant complaint are not likely to lead to admissible evidence and should not be allowed. Plaintiffs discourse with the police over unrelated subjects is not properly the subject of a subpoena in this matter. 4. Defendant should revise its subpoena to request complaints relating only to the issues that are the subject of this civil action. WHEREFORE, Plaintiff respectfully requests that the proposed subpoena be denied. Respectfully subm Edmund J. Berger, Esq. 2104 Market Street Camp Hill, PA 17011 Telephone: (717) 920-8900 Facsimile: (717) 920-8901 E-mail: tberger@bergedawfirm.net Date: December 26, 2006 2 LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Defendant BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Camp Hill Borough Police 2199 Walnut Street Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all documents regarding disputes, problems or concerns, including but not limited to dispatch and Officer Reports relating to Randee McOuown of 2700 Chestnut Street, Camp Hill, PA 17011 and/or Judee Krebs formerly of 36 South 27th Street, Camp Hill, PA 17011 from 1994 to the present date at 3800 Market Street Camp Hill, Pennsylvania, 17011 to the attention of Elizabeth J. Saylor, Esquire. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the document or things required by this subpoena within twenty (20) days after its service, the parry serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Judith Krebs by and through her counsel The Law Offices of Peter J. Russo, P.C. THE LAW OFFICE OF PETER J. RUSSO, P.C. Peter J. Russo, Esquire Attorney I.D. No. 72897 John N. Papoutsis, Esquire Attorney I.D. No. 70312 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 20013 Attorneys for Defendant 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Date: BY THE COURT: By: Prothonotary CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Plaintifrs Objections To Subpoena Directed To Camp Hill Borough Police Pursuant To Rule 4009.21, on the following person and in the manner indicated. BY HAND DELIVERY Peter J. Russo, Esq. Elizabeth Saylor, Esq. 3800 Market Street Camp Hill, PA 17011 Date: December 26, 2006 Edmund J. Berger O f ''7 T ?°? r7T-T7 C l) _ y,, J LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Defendant BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff VS. JUDITH KREBS, Defendant : No. 05-3246 CIVIL : JUDGE KEVIN A. HESS DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO SUBPOENA DIRECTED TO CAMP HILL BOROUGH POLICE PURSUANT TO RULE 4009.21 Defendant, Judith Krebs, through her attorneys, The Law Offices of Peter J. Russo, P.C. respectfully request this Court to deny Plaintiffs Objection to Subpoena Directed to Camp Hill Borough Police and allow Defendant to serve said subpoena. In support of this request, Defendant avers the following: 1. Plaintiff commenced the above-captioned lawsuit by filing a complaint on July 18, 2005, naming Judith Krebs as the Defendant. 2. Plaintiff filed an Amended Complaint on December 27, 2005, which set forth counts in nuisance and in trespass. 3. In Section D of Plaintiff's Amended Complaint, concerning the Ground Based Floodlights, Plaintiff avers that a complaint was filed with the police. 4. In Section E of Plaintiff's Amended Complaint, concerning Floodlights installed March 2005, Plaintiff avers that said floodlights are unlawful. 5. In Paragraph 35 of Defendant's Answer the Defendant avers that a dispute between the Plaintiff and Defendant hereto has been ongoing for approximately a decade. 6. In response to Defendant's allegation set forth in Paragraph 35, the Plaintiff admits that there have been ongoing disputes between Plaintiff and Defendant for some time. 7. During discovery, letters were produced that were written by Plaintiff and sent to Defendant, in which Plaintiff alleges unlawful acts by the Defendant. 8. Said letters reference issues set forth in the complaint, such as the alleged issues with the gutters, ice damage, tree, and fence. 9. In discovery letters were produced concerning issues addressed in Plaintiff's Complaint in which the Camp Hill Borough Police were copied and/or referenced. 10. In discovery letters were produced that were sent from a party to the Camp Hill Borough Police that pertained to the disputes between the parties. 11. On December 4, 2006, Defendant's counsel sent Plaintiff's counsel a Notice of Intent to Serve A Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21. 12. On or about December 26, 2006, Defendant's counsel received Plaintiff's Objections to Subpoena Directed to Camp Hill Borough Police Pursuant to Rule 4009.21. 13. The scope of discovery is codified in Pa.R.C.P. 4003.1, and it states: "(a) [A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ...(b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." 14. The purpose for the subpoena is to obtain information related to the action and to aid the defendant in forming a defense. 15. The information sought by the subpoena is relevant and is reasonably calculated to lead to the discovery of admissible evidence, pursuant to Pa.R.C.P. 4003.1. 16. The access requested is not sought in bad faith and would not cause unreasonable annoyance, embarrassment, oppression, burden or expense to Plaintiff. However, to request the Camp Hill Police to read through a decade worth of reports to produce only those which are limited directly to the complaint is unreasonable and overly burdensome. 17. Pursuant to C.C.R.P. 208.3(a)(9), Counsel for Defendant Judith Krebs, hereby certifies that he has conferred with attorney for Plaintiff Randee McQuown in a good faith effort to resolve the issue raised within Plaintiff's Objection to Defendant's Request for Entry Upon Plaintiff's Property for Inspection and Request for Protective Order and after reasonable efforts, has been unable to resolve this discovery dispute. WHEREFORE, Defendant respectfully requests this Honorable Court to grant its Motion to Compel Access to Plaintiff's Home for Inspection. Respectfully submitted, THE LAW OFFICE OF PETER J. RUSSO, P.C. Peter J. Russo, ire Attorney I.D. No. 72897 John N. Papoutsis, Esquire Attorney I.D. No. 70312 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 20013 Attorneys for Defendant 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Date: / g-0-7 LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Defendant BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant VERIFICATION I, Judith Krebs, verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: I LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Defendant BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, . Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, . Defendant . CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the Defendant's Response to Plaintiff's Objections to Subpoena Directed to Camp Hill Borough Police Pursuant to Rule 4009.21, upon the following person, in the manner indicated: FIRST CLASS MAIL Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 DATE: /-?=6 7 r?_z _ ? :- C.._ ---t 4,._ ?,: ?.'.? _! 7-• r ?i,.J ?.?..,, ? Z ?? _ t •' '\: LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Defendant BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant : JUDGE KEVIN A. HESS DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO DEFENDANT'S REQUEST FOR ENTRY UPON PLAINTIFF'S PROPERTY FOR INSPECTION AND REQUEST FOR PROTECTIVE ORDER AND DEFENDANT'S MOTION TO COMPEL ACCESS TO PLAINTIFF'S HOME FOR INSPECTION Defendant, Judith Krebs, through her attorneys, The Law Offices of Peter J. Russo, P.C. respectfully request this Court to deny Plaintiff's request for a protective order and compel Plaintiff Randee McQuown, through her attorney Edmund J. Berger, Esquire, to allow Defendant access to inspect Plaintiff's property. In support of this request, Defendant avers the following: 1. This is an action in which the Plaintiff is alleging Seven Thousand Two Hundred and Sixty One Dollars and no cents ($7,261.00) of damage to her property, which is adjacent to the property previously owned by Defendant. 2. Plaintiff commenced the above-captioned lawsuit by filing a complaint on July 18, 2005, naming Judith Krebs as the Defendant. 3. Plaintiff filed an Amended Complaint on December 27, 2005. 4. In September 2006 Defendant's counsel verbally requested approval from Plaintiff's counsel to inspect Plaintiff's property in order to obtain an expert opinion on the damages alleged in Plaintiff's complaint. 5. Receiving no response, on or about October 2, 2006, Plaintiff's counsel was verbally informed that if no approval was given by October 6, 2006, then Defendant's counsel would proceed by filing a Motion to Compel. 6. Plaintiff's counsel did not give the requested approval to inspect Plaintiff's property as he objected to the Defendant not strictly compelling with the Pennsylvania Rules of Court as no written notice was given. 7. Upon a hearing on November 17, 2006, the Honorable Judge Hess, ordered that the required notice be given compliant with the Rules of Court. 8. On November 21, 2007, Defendant's counsel served Plaintiff with the Pa.R.C.P. 4009.32 Inspection Request, which is attached hereto and incorporated herein as Exhibit A. 9. On December 14, 2006, Plaintiff's counsel contacted the undersigned counsel and in summary stated that he wanted: a. the "not limited to" language in the Notice removed b. to know everyone who would be attending the inspection c. to know the exact activities that were to be performed, and d. to know the amount of time the parties intended to be there. 10. The undersigned counsel informed Mr. Berger that: a. our client was still deciding between two specialists in the inspection field as to whose services she wished to attain to inspect the alleged damage to the property b. we also believed our client was going to hire Hartman and Associates to survey the positioning of the fence that Plaintiff alleges is trespassing on her property c. as we did not know the company that our client wished to retain for the home inspection, we did not know the individuals that would be present d. we believed that the Defendant, as well as her counsel had a right to be present for the inspection if they so desired e. we were unsure as to the exact testing that would be done as it depended on the specialist's observation of the scene, and f. we were unsure as to the length of time it would take as again it would assumingly depend on what was observed by the specialist and as we were not experts in the field, the time frame it would take was unknown, and g. we were not doing the inspection to in any way harass the Plaintiff but we simply needed to perform a thorough investigation to protect our client's interest as the Plaintiff is suing her for thousands of dollars worth of damage concerning her property. 11. On December 20, 2006, Defendant's counsel received Plaintiff's Objection to Defendant's Request for Entry Upon Plaintiff's Property for Inspection and Request for Protective Order. 12. The scope of discovery is codified in Pa.R.C.P. 4003.1, and it states: "(a) [A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ...(b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." 13. The purpose for the inspection is to obtain an expert opinion as to the damage to Plaintiff's property and cause of any damage. 14. The information sought by the inspection is relevant and is reasonably calculated to lead to the discovery of admissible evidence, pursuant to Pa.R.C.P. 4003.1. 15. The access requested is not sought in bad faith and would not cause unreasonable annoyance, embarrassment, oppression, burden or expense to Plaintiff. 16. Further in Plaintiff's Objection, counsel argues that the Inspection Request does not comply with Pa.R.C.P. 4009.32 because it does not describe with reasonable particularity the property to be entered and the activities to be performed for the following reasons: a. the use of the words, "but is not limited to" in describing the activities to be performed by the expert, and b. the failure to identify the individuals who will be performing the inspection and the length of their visit. 17. Pa.R.C.P. 4009.32 requires that the request shall describe with reasonable particularity the property to be entered and the activities to be performed. The rule does not require that the exact property and/or exact activities need to be set forth. 18. The rule does not require that the identity of the individuals who will perform the inspection be revealed. 19. The rule does not require that an estimate as to the amount of time the inspection will take be provided. However, Pa.R.C.P. 4009.32 (c) states "a party may enter upon property one or more times to accomplish the activities set forth in the request." 20. Opposing counsel also for the first time mentions in his Objection to Defendant's Request for Entry Upon Plaintiff's Property For Inspection that Defendant is performing the inspection for the purpose of harassing Plaintiff. Save this for Oral Arguments if he had them. 21. Pursuant to C.C.R.P. 208.3(a)(2) Petitioner certifies that (1) the Honorable Judge Hess issued an Order on November 18, 2005 (In Re: Motion to Reinstate Appeal before Hess and Oler, JJ.) and (2) the Honorable Judge Guido issued an Order on April 17, 2006, (In Re: Plaintiff's Preliminary Objections to Defendant's Counterclaim before Bayley and Guido, JJ.), and (3) the Honorable Judge Hess issued an Order on November 17, 2006 (In Re: Defendant's Motion to Compel Access to Plaintiff's Home For Inspection). 22. Pursuant to C.C.R.P. 208.3(a)(9), Counsel for Defendant Judith Krebs, hereby certifies that he has conferred with attorney for Plaintiff Randee McQuown in a good faith effort to resolve the issue raised within Plaintiff's Objection to Defendant's Request for Entry Upon Plaintiff's Property for Inspection and Request for Protective Order and after reasonable efforts, has been unable to resolve this discovery dispute. WHEREFORE, Defendant respectfully requests this Honorable Court to grant its Motion to Compel Access to Plaintiff's Home for Inspection. Respectfully submitted, THE LAW OFFICE OF PETER J. RUSSO, P.C. 1) Peter J. Russo, Esqui Attorney I.D. No. 728 John N. Papoutsis, Esquire Attorney I.D. No. 70312 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 20013 Attorneys for Defendant 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Date: _?_? LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Defendant BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, . Defendant VERIFICATION 1, Judith Krebs, verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. 4 al_ Date: ?J ) r e bs, Defendant 4ii id i LAW OFFICES OF PETER J. RUSSO, P.C. BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff VS. : No. 05-3246 CIVIL CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the JUDITH KREBS, Defendant Defendant's Response to Plaintiff's Objections to Defendant's Request for Entry Upon Plaintiff's Property for Inspection and Request for Protective Order and Defendant's Motion to Compel Access to Plaintiff's Home for Inspection, upon the following person, in the manner indicated: FIRST CLASS MAIL Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 DATE: c Elizabeth J. Sayl squire C _ :°j { a s __ T.?+ RANDEE MCQUOWN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 05-3246 CIVIL JUDITH KREBS, Defendant IN RE: PLAINTIFF'S OBJECTIONS TO DEFENDANT'S INSPECTION REQUEST ORDER AND NOW, this Z day of January, 2007, a brief argument on the plaintiff s objections to defendant's inspection request is set for Thursday, February 22, 2007, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. /mund J. Berger, Esquire For the Plaintiff vAe'ter J. Russo, Esquire For the Defendant y :rlm BY THE COURT, 1, ^r l 0 NPI'f (GZ AU14 ?r, ; ; -'f-l RANDEE MCQUOWN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 05-3246 CIVIL JUDITH KREBS, Defendant IN RE: PLAINTIFF'S OBJECTIONS TO SUBPOENA DIRECTED TO CAMP HILL BOROUGH POLICE ORDER AND NOW, this day of January, 2007, a brief argument on the plaintiff s objections to subpoena is set for Thursday, February 22, 2007, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, i A. Hess, J. Edmund J. Berger, Esquire / For the Plaintiff Peter J. Russo, Esquire For the Defendant :rlm C ? y ? ? ? Sf ? ' 1J RANDEE MCQUOWN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 05-3246 CIVIL JUDITH KREBS, Defendant IN RE: PLAINTIFF'S OBJECTIONS TO SUBPOENA DIRECTED TO CAMP HILL BOROUGH POLICE ORDER AND NOW, this ZL t4 day of February, 2007, following argument thereon, the plaintiff's objections to the subpoena directed to the Camp Hill Borough Police Department are DENIED. 'Tad Berger, Esquire For the Plaintiff "EFolizabeth Saylor, Esquire For the Defendant t :rlm BY THE COURT, ,. v Lf`10 Z S =Z Wd U 83A LODZ AdVIONO; ' 4_udd 31A 40 3 L!:,'C-,j3lIA RANDEE MCQUOWN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-3246 CIVIL JUDITH KREBS, Defendant IN RE: DEFENDANT'S REQUEST FOR ENTRY UPON PLAINTIFF'S PROPERTY FOR INSPECTION AND THE OBJECTION OF THE PLAINTIFF THERETO AND PLAINTIFF'S REQUEST FOR PROTECTIVE ORDER ORDER AND NOW, this 2204 day of February, 2007, the defendant's request for entry upon plaintiff's property for inspection is GRANTED subject to the following limitations: 1. Any inspection conducted shall occur between the hours of 9:00 a.m. and 5:00 p.m. 2. The inspection will be limited as specifically delineated in the request and the language in the request to the effect that the inspection "includes but is not limited to" is stricken. 3. The inspection will be conducted by representatives of Yingst Engineers Inc. of Hershey, Pennsylvania. 4. An attorney for the defendant may be present during all or part of the inspection. BY THE COURT, Berger, Esquire For the Plaintiff 3 lI izabeth Saylor, Esquire For the Defendant Hess, J. > cv f-. cr C\j ca LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Defendant BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) an objection to the subpoena has been received, and the attached Order of Court has been issued, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. THE LAW OFFICE OF PETEW. RUSSO, P.C. Peter J. Kusso, Esq i Attorney I.D. No. 72897 John N. Papoutsis, Esquire Attorney I.D. No. 70312 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 20013 Attorneys for Defendant 3 800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 _-? Facsimile: (717) 591-1756 Date: RANDEE MCQUOWN, Plaintiff vs. JUDITH KREBS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3246 CIVIL IN RE: PLAINTIFF'S OBJECTIONS TO SUBPOENA DIRECTED TO CAMP HILL BOROUGH POLICE ORDER AND NOW, this Z2-':4 day of February, 2007, following argument thereon, the plaintiff's objections to the subpoena directed to the Camp Hill Borough Police Department are DENIED. Tad Berger, Esquire For the Plaintiff Elizabeth Saylor, Esquire For the Defendant :rlm BY THE COURT, LAW OFFICES OF PETER J. RUSSO, P.C. BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff VS. JUDITH KREBS, Defendant : No. 05-3246 CIVIL NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 The Defendant, Judith Krebs, by and through her counsel, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. THE LAW OFFICE OF PETER J. RUSSO, P.C. Peter J. usso, Esquire Attorney I.D. No. 72897 John N. Papoutsis, Esquire Attorney I.D. No. 70312 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 20013 Attorneys for Defendant 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Date: ?? ' Facsimile: (717) 591-1756 LAW OFFICES OF PETER J. RUSSO, P.C. BY: Elizabeth J. Saylor, Esquire PA Supreme Court fl): 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Camp Hill Borough Police 2199 Walnut Street Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all documents regarding disputes, problems or concerns, including but not limited to dispatch and Officer Reports relating to Randee McOuown of 2700 Chestnut Street, Camp Hill PA 17011 and/or Judee Krebs formerly of 36 South 27th Street Came Hill PA 17011 from 1994 to the present date at 3 800 Market Street Camp Hill, Pennsylvania, 17011 to the attention of Elizabeth J. Saylor, Esquire. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the document or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Judith Krebs by and through her counsel The Law Offices of Peter J. Russo, P.C. THE LAW OFFICE OF PETER J. RUSSO, P.C. Peter J. Russo, Esquire Attorney I.D. No. 72897 John N. Papoutsis, Esquire Attorney I.D. No. 70312 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 20013 Attorneys for Defendant 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Date: BY THE COURT: By: Prothonotary LAW OFFICES OF PETER J. RUSSO, P.C. BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 72897 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant To: Camp Hill Borough Police 2199 Walnut Street Camp Hill, PA 17011 NOTICE You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, an authorized agent of the Camp Hill Borough Police, certify to the best of my knowledge, information and belief that all documents or things required to be produced pursuant to the subpoena issued on have been produced. Date: date of subpoena) Camp Hill Borough Police Name: Title: LAW OFFICES OF PETER J. RUSSO, P.C. BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff No. 05-3246 CIVIL VS. JUDITH KREBS, Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the Certificate Prerequisite to Service of a subpoena pursuant to Rule 4009.22, upon the following person, in the manner indicated: FIRST CLASS MAIL Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 DATE: 3 - 7 Elizabe J. Sayl kr,, r- : ? "t't _ ._..a ? ? ,,??,i ?' `ri t? ="? .? ? ?-?.: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, vs. No: 05-3246 CIVIL TERM JUDITH KREBS Defendant MOTION FOR STATUS CONFERENCE TO ESTABLISH CASE MANAGEMENT DEADLINES AND NOW COMES Plaintiff, Randee McQuown, by her counsel, and requests that the Court schedule a Status Conference for the purpose of establishing case management deadlines to assist the parties in completing discovery so that this matter may be listed for arbitration as soon as possible. In support of this Motion, Plaintiff respectfully submits as follows: 1. This action was commenced by Notice of Appeal on June 27, 2005. 2. Following the Notice of Appeal, the matter was held up in the pleading phase until the middle of 2006. 3. On July 21, 2006, Plaintiff filed a Petition for Appointment of Arbitrators and arbitrators were appointed by Order of August 1, 2006. 4. Subsequently, Defendant determined that she wished to conduct some discovery, the arbitration was continued, Plaintiff's deposition was taken, and Defendant requested an inspection of Plaintiffs home. Discovery matters were argued and, on February 22, 2007, the Court entered an Order with respect to inspection of Plaintiffs home. 5. Although, the Court entered its Order on the inspection of Plaintiff's home in February, 2007, Defendant's inspection was not performed until August, 2007 and Plaintiff has yet to receive Defendant's inspection report as Plaintiff has been informed that the inspection report had not yet been completed. 6. Given that this matter has been before this Court for over two years, and given the significant length of time that Defendant has taken to have expert reports prepared, it is imperative that the Court impose a schedule to ensure that the matter is ready for disposition as soon as possible while ensuring Plaintiff retains the right to prepare reports in response to Defendant's expert reports should it be deemed necessary. 7. Plaintiff and Defendant believe that the Court could assist the parties in bringing this matter to a point of readiness for arbitration, by holding a Status Conference at which time case management deadlines can be established. 8. Defendant has indicated to Plaintiff that she does not concur in the request for a status conference. 2 WHEREFORE, Plaintiff respectfully requests a Status Conference to discuss the outstanding discovery issues and the establishment of case management deadlines. December ' f 2007 Edmund J. Berger Attorney I.D. #53407 Attorney for Plaintiff 2104 Market Street Camp Hill, PA 17011 Phone: 717-920-8900 Fax: 717-920-8901 E-Mail: tberger@bergerlawfirm.net 3 CERTIFICATE OF SERVICE 1 hereby certify that I have this day served the foregoing Motion for Status Conference to Establish Case Management Deadlines, on the following person and in the manner indicated. BY FIRST CLASS MAIL Peter J. Russo, Esq. Elizabeth Saylor, Esq. 3800 Market Street Camp Hill, PA 17011 Date: December 13, 2007 b IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, vs. No: 05-3246 CIVIL TERM JUDITH KREBS Defendant. AMENDED MOTION FOR STATUS CONFERENCE TO ESTABLISH CASE MANAGEMENT DEADLINES AND NOW COMES Plaintiff, Randee McQuown, by her counsel, requests that this Amended Motion be attached to the Motion for Status Conference to Establish Case Management Deadlines filed in the Prothonotary's Office on December 14, 2007. Amendments are as follows: 3. On July 21, 2006, Plaintiff filed a Petition for Appointment of Arbitrators and arbitrators were appointed by Order of August 1, 2006 by Judge Edgar B. Bayley. 4. Subsequently, Defendant determined that she wished to conduct some discovery, the arbitration was continued, Plaintiff's deposition was taken, and Defendant requested an inspection of Plaintiffs home. Discovery matters were argued and, on February 22, 2007, the Court entered an Order by Judge Kevin A. Hess with respect to inspection of Plaintiff's home. CD d: -„t DEC 19 207P IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, vs. No: 05-3246 CIVIL TERM JUDITH KREBS Defendant PROPOSED ORDER AND NOW, this rid day of ?, the Court schedules a Status Conference in the above-captioned matter to discuss with the parties certain outstanding discovery issues and the establishment of case management deadlines. A Status Conference shall be held on 1, v100y at 930 1°.M. in before Judge ?4:;?, / `x? (2. BY THE COURT: 1C/' 2) ?fl C+; ea±! phCA?wlw u Plaintiff Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No. OS-- :3L`ECI Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. &w/0 Signature Signature 6 _ Name ha' ) Qi Le 6 p. w Firm Address City, zip dk /Col? Name ?.,ini w a Lc.. Law Firm S. Nt cr fGC ?- gF (2-7 t.> 0 , /?mar ^ c i^ Address n MCc?a1?c? 170'5 r city, zip /19387 Award z ew A 4 r/? ? Signs e Name <SY?,I?/?f3 ? i Law Firm w aTi pia Sf/ / /?,!) 14f Ir ish? loa./NGI+I/. /?! Address 61 city, zip / 17070 -W /2L7A--, . Arbitrator, Date of Hearing: t O LL Q- l 04? Date of Award: lC A---z(e Notice of Entry of Award name if , -&.M., the above award was Now, the day of Moo , 200_q_, at 9!9S- entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ By: th otary Deputy We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damaizes for delay are awarded, they shall be separately stated.) ARY V 4? i `w?r:? ?-er IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff Vs File No. 05-3246 CIVIL TERM Civil Term JUDITH KREBS Defendant NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is given that _ RANDEE MCQUOWN appeals from the award of the board of arbitrators entered in this case on November 13, 2009 A jury trial is demanded 16 . (Check the line if a jury trial is demanded. Otherwise jury trial is waived.) I hereby certify that (1) the compensation of the arbitrators has been paid, or out the inapplicable clause.) Appellant or Attorney of Appell Note: The demand for jury trial on appeal from compulsory arbitration is governed by Rule 1007.1(b). (b) No affidavit or verification is required. Adopted March 16, 1981, effective May 15, 1981. 4f CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Notice of Appeal, on the following person and in the manner indicated. BY FIRST CLASS MAIL Peter J. Russo, Esq. Elizabeth Saylor, Esq. 5006 E. Trindle Road Suite 100 Mechanicsburg, PA 17050 Date: December 8, 2009 FILED-OFFiCE OF THE PROR TTARY 2009 DEC -9 PM 2: 28 C?f1Y?y:>i._?11w i } 4JAR+JV11 1 L.1 I t, L.YI t,! A $35o . oco P Q A'r't`( cr'W L"4 p,T* a3y,7,73 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA c ' i RANDEE MCQUOWN, c?, r? r Plaintiff No. 05-3246 CIVIL VS. CJ 31 "t7 =r- ( -r JUDITH KREBS, Defendant - CO RULE AND NOW, this *A day of Xbq"wY , 2012, upon consideration of the Defendant's Motion for Non Pros for Failure to Proceed, it is hereby ORDERED that a Rule is entered upon Plaintiff, Randee Mcquown, to show cause why, if any, said Motion should not be granted. Rule returnable 20 days after service. BY T ; RT, J. Distribution List: +? Elizabeth J. Saylor, Esquire 5006 East Trindle Road, Suite 100 Mechanicsburg, PA 17050 Edmund J. Berger, Esquire 2104 Market Street Camp Hill, PA 17011 6Pp;r5 ?,, .-1, 4 'ell, r , vi f t 1? f ?V 7 J i? j jy` +'e l'1 ^F Edmund J. Berger 2104 Market Street ? Camp Hill, PA 17011 Phone:(717) 920-8900`R? COU&r%- Fax: (717) 920-8901 ??????S'Ir.?,???(?; tberger@bergerlawfirm.net IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN Plaintiff, vs. No: 05-3246 CIVIL TERM JUDITH KREBS Defendant. RULE TO SHOW CAUSE AND NOW, this /Y* day of ,*,ch , 2012, upon consideration of the foregoing petition, 1. A rule is issued upon the Defendant to show cause why the petitioner is not entitled to-the relief requested; 2. The Defendant shall file an answer to the petition within ten (10) days of this date; 3. The petition shall be decided under Pa.R.C.P. No. 206.7; 4. Awment shall b-a-hel ouse; an 01 11 le Dattpl lin 5. Notice of the entry of this order shall be provided to all parties by the petitioner. ?rer" t ltu7 Pe4er- basso, ci C 1 Zh yfor- BY THE COURT: Randee McQuown, Plaintiff 2700 Chestnut Street Camp Hill, PA 17011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RANDEE MCQUOWN, Plaintiff, vs. JUDITH KREBS, Defendant 'r= ? h'E'ROHCIOTp.' 2012 MAR 20 PM 12: 33 CUMBERLAND COUNTY PENNSYLVANIA No: 05-3246 CIVIL PLAINTIFF'S RESPONSE TO RULE TO SHOW CAUSE ON DEFENDANT'S MOTION FOR NON PROS AND NOW COMES Plaintiff Randee McQuown who responds to Defendant's allegations and respectfully avers the following regarding the Defendant's motion: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. 6. Denied. 7. Denied. Plaintiff will provide a narrative of compelling factors. 8. Plaintiff is without knowledge or information sufficient to form a belief regarding prejudice to Defendant. Proof of alleged prejudice is demanded. 9. Admitted. 10. Admitted. WHEREFORE, Plaintiff respectfully requests that Defendant's Motion for Non Pros be denied. Respectfully submitted, 1-4 Randee McQuown, Pro Se 2700 Chestnut Street Camp Hill, PA 17011 Phone: 717-731-0731 Date: March 19, 2012 VERIFICATION I, Randee McQuown, affirm that I am the Plaintiff in this action and that the statements of fact made in the foregoing brief are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. § 4904 relating to unsworn falsification to authorities. Date: March 19, 2012 G k'//? ? ?7 Randee McQuown, Pro Se CERTIFICATE OF SERVICE I hereby certify that on the day of March 2012, a true copy of the Plaintiffs Response to the Rule was served upon the following individual by first class mail: Elizabeth Saylor, Esq. 5006 E. Trindle Road, Suite 100 Mechanicsburg, PA 17050 Respectfully, Randee McQuown 2700 Chestnut St. Camp Hill, PA 17011 Ph: (717) 731-0731