HomeMy WebLinkAbout05-4217
II
I
Francis Worley, JL and
Daniel T. Worley
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:NO.05- 4,),/1
CIVIL TERM
v,
CIVIL ACTION - QUIET TITLE
Kenneth R Whitson,
Defendant
NOTICE TO DEFEND AND CLAIM RIGHTS
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 17013
717-249-3166
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Daniel D, Worley Esquire /
Attorney for Plaintiff
II
I
Francis Worley, Jr. and
Daniel T, Worley
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 05-
CIVIL TERM
v.
CIVIL ACTION - QUIET TITLE
Kenneth R Whitson,
Defendant
COMPLAINT
AND NOW COME the Plaintiffs, Francis Worley, Jr. and Daniel T. Worley by and
through their attorney, Daniel D, Worley, WORLEY & WORLEY, and bring forth this
Complaint against Defendant, Kenneth R Whitson, and do respectfully represent the
following:
1. Plaintiffs, Francis Worley, Jr. and Daniel T. Worley are the owners of the herein
described tract of land and have a mailing address of 225 Latimore Valley Road.
York Springs, Pennsylvania 17372.
2. Defendant Kenneth R Whitson is a single individual residing at 72 Smith Road,
Gardners, Cumberland County, Pennsylvania but receiving mail at 74 Smith
Road, Gardners, PA 17324,
3, Plaintiffs, Francis Worley. Jr. and Daniel T, Worley are the owners as tenants in
common of property located in South Middleton Township, Cumberland County
described as follows:
BEGINNING at an iron pin set on the northern of 8 foot wide gravel private road at
lands of Grace A Whitson; thence along lands of Grace A. Whitson, North 29
degrees 12 minutes 00 seconds West 326A7 feet to an iron pin set in rock pile;
thence along lands of John M. Bearer, North 61 degrees 47 minutes 30 seconds
East 394,13 feet to an existing angle iron; thence South 39 degrees 42 minutes 05
seconds East 91,00 feet to an iron pin set on the northern side of 8 foot wide gravel
private road; thence along the northern side of the aforementioned road the following
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three courses and distances: 1) South 37 degrees 13 minutes 48 seconds West
117,02 feet; 2) South 21 degrees 27 minutes 54 seconds West 221 ,35 feet; 3) South
42 degrees 45 minutes 02 seconds West 139.03 feet to an iron pin the place of
BEGINNING
4, Plaintiffs' property is a +\- (2) two acre tract which has been customarily
accessed by means of Whitson Road.
5. Plaintiffs' property is "landlocked" without the access provided by Whitson Road,
6. Whitson Road is a gravel private road intersecting at Smith Road and continuing
past the property owned by Plaintiffs.
7, Whitson Road is shown and labeled on the Cumberland County tax map a copy
of which is attached hereto and marked "Exhibit A".
8. Whitson Road passes through four tracts of land before reaching Plaintiffs' tract
of land,
9, Plaintiffs and Plaintiffs' predecessors in interest have used Whitson Road as
access to the herein described land for a period in excess of 21 years, when
combined.
10.Although Whitson Road has been the customary and sole access to Plaintiffs'
property, it is necessary for Plaintiffs' to have a recorded easement or Court
Decree to obtain marketable title to their property.
11. Plaintiffs have received signed Easement Agreements from the three of the four
landowners.
12. Said Agreements are recorded in the office of the Recorder of Deeds for
Cumberland County in Deed Book 719, page 3621, Deed Book 719, page 3626
and Deed Book 719, page 3631
13. Defendant, Kenneth Whitson, is a single man seized of a tract of land located in
South Middleton Township, Cumberland County legally described as follows:
BEGINNING at a white oak sapling; thence by lands formerly of D. V, Ahl and C. W.
Ahl, later of Emmert Miller, North 30 degrees West 40 perches to a post; thence by
lands of Lloyd Brandt, et ai, North 60 degrees East, 80 perches to a post; thence still
by lands of said Lloyd Brandt, et ai, South 30 degrees East, 40 perches to a post;
II
thence by lands now or formerly of Peter Jacobs, South 60 degrees West, 80
perches to the place of BEGINNING,
14. Plaintiffs contacted Kenneth Whitson and provided him with an Easement
Agreement
15. Mr. Whitson stated that he did not contest Plaintiffs' right to access the property
via Whitson Road but he was unwilling to sign any documents,
16. Plaintiffs explained to Mr. Whitson that they would be forced to pursue an action
to quiet title, and he related to them that he did not intend to contest the action,
WHEREFORE, Plaintiffs, Francis Worley, Jr. and Daniel T, Worley, request this
Honorable Court enter a Decree confirming a private, nonexclusive right to enter upon
and use that portion of Whitson Road passing through property owned by Defendant for
the purpose access to and from Plaintiffs' herein described property. Plaintiffs' further
request that width of said easement be set at ten feet (10') subject to reasonable
expansion, include any all reasonable uses, and that the easement be transferable to
Plaintiffs' heirs or assigns.
Respectfully submitted,
1- /z;- DZ)
Date
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Daniel D. Worley, Esquire '
WORLEY & WORLEY
101 E. Philadelphia Street
York, PA 17403
(717) 854-5914
Attorney for Plaintiff
II
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct
understand that false statements herein are made subject to the penalties of 18
Pa.C,S. 94904 relating to unsworn falsification to authorities.
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HAROLD S. I_IN, III. ISQ
SUP....I COURT ID NO 2111120
84 SOUTH PITT STUeT
CARLISLE. PA 17013
717-243-8080
ATTORNIY POR DIPINDANT
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FRANCIS WORLI!Y, .JR. and
DANIIIL T. WORLI!Y
Plaintiffs
I IN THII COURT OF COMMON PLUS OF
I CUMBIIRLAND COUNTY PIINN8YLVANIA
v.
I CIVIL ACTION. LAW
.
.
KENNIITH R. WHITSON
Defendant
I NO. 2005 - 4217 CIVIL TIIRM
I ACTION TO QUII!T TITLI!
ANSWER WITH NEW MATTER
NOW comes the defendant, by his attorney, Harold S. Irwin, III, Esquire, and files this
response to plaintiffs' complaint, representing as follows:
1. The averments of this paragraph of plaintiffs' complaint are admitted in part and
denied in part. It is admitted that the plaintiffs' residence is as averred. However, the
remaining averments of this paragraph are denied by reason that after reasonable
investigation defendant is without knowledge sufficient to form a belief as to the truth of
the averments and proof thereof at trial is demanded, if re,levant.
2. The averments of this paragraph of plaintiffs' complaint are admitted in part and
denied in part. Rather than as stated, defendant resides at 74 Smith Road and
receives his mail at 76 Smith Road. The remaining averm.,mts of this paragraph are
admitted.
3. The averments of this paragraph of plaintiffs' complaint are denied by reason
that after reasonable investigation defendant is without knowledge sufficient to form a
belief as to the truth of the averments and proof thereof at trial is demanded, if relevant.
4. The averments of this paragraph of plaintiffs' complaint which refer to the size of
plaintiffs' tract of land are denied by reason that after reasonable investigation
defendant is without knowledge sufficient to form a be,lief as to the truth of the
averments and proof thereof at trial is demanded, if relevant. The remaining averments
of this paragraph are untrue and are specifically denied. On the contrary, access to
plaintiffs tract of land has customarily been and remains of Old Town Road.
5. The averments of this paragraph of plaintiffs' complaint referring to plaintiffs' tract
as being landlocked are admitted. However, said prop<erty is landlocked regardless of
whether or not it is accessed by means of Whitson Road. Furthermore, plaintiffs
already have access by way of Old Town Road without further and unnecessarily
burdening defendant's land.
6. The averments of this paragraph of plaintiffs' complaint are admitted.
7. The map attached to plaintiffs' complaint speaks 'for itself.
8. The averments of this paragraph of plaintiffs' complaint are admitted.
9. The averments of this paragraph of plaintiffs' complaint are admitted. By way of
further response, said use has always been permissive and not adverse.
10. The averments of this paragraph of plaintiffs' complaint are untrue and are
specifically denied. On the contrary, access to plaintiff's tract of land has customarily
been and remains of Old Town Road. Furthermore, it is not necessary to have a
recorded easement or Court Decree to obtain marketable title to plaintiffs' property. It is
admitted that if plaintiffs had a recorded easement their property could be more
valuable. In fact, defendant believes and therefore avers that the sole reason for this
legal action is plaintiffs' desire to sell their property at a substantial profit if they can take
this right-of-way from defendant for free.
11. The averments of this paragraph of plaintiffs' complaint are denied by reason
that after reasonable investigation defendant is without knowledge sufficient to form a
belief as to the truth of the averments and proof thereof at trial is demanded, if relevant.
12. The averments of this paragraph of plaintiffs' complaint are denied by reason
that after reasonable investigation defendant is without knowledge sufficient to form a
belief as to the truth of the averments and proof thereof at trial is demanded, if relevant.
13. The averments of this paragraph of plaintiffs' complaint are admitted.
14. The averments of this paragraph of plaintiffs' complaint are admitted.
15. The averments of this paragraph of plaintiffs' complaint are admitted in part and
denied in part. It is admitted that defendant stated that he would continue to give oral
permission to the plaintiffs to travel through his property to theirs for residential
purposes, but that he would not execute a written and recordable right-of-way
agreement. It is denied that defendant acknowledged that plaintiffs have a "right" to
access the property via Whitson Road. On the contrary, plaintiffs' ability to use Whitson
Road in so far as it crosses through the middle of defendant's property is conditioned
on defendant's continued willingness to grant permission to them to do so.
16. The averments of this paragraph of plaintiffs' complaint are admitted in part and
denied in part. It is admitted that plaintiffs threatened defendant with a lawsuit if he
would not sign the proposed agreement. It is denied that defendant stated that he
would not contest the action. Furthermore, even if he did not intend to contest it at the
time, such intention does not prevent him from asserting his rights now.
WHEREFORE, defendant requests that plaintiffs' complaint be dismissed and that
judgment be entered on behalf of defendant.
NEW MATTER
17. Defendant incorporates by reference his responses to plaintiffs' complaint,
paragraphs one through sixteen inclusive. as if set forth herein in their entirely.
18. Plaintiffs have a usable. existing right-of-way by means of Old Town Road.
19. Old Town Road has been used by plaintiffs and their predecessors in title and
other landowners throughout the area and continues to be used to this day.
20. This action is for the sole purpose of attempting to force defendant into giving up
a right-of-way to the plaintiffs who intend to profit substantially from the sale of their
land if they can obtain this right-of-way.
21. This action is arbitrary and capricious and based on the misrepresentation that
no other means exists for plaintiffs to access their land when. in fact. they have an
existing. but less convenient access route.
22. This action is an abuse on the processes of this Court and as such plaintiffs
should be required to reimburse to the defendant his costs and attorney fees in
defending this action.
WHEREFORE. defendant requests that this Honorable Court enter judgment in his
favor and against the plaintiffs in an amount equal to defendant's costs and attorney
fees.
Harold S. Irwin. III
Attorney for Defendant
August 11. 2005
VERIFICATION
I hereby state that I am the defendant in this action and that the facts and information
set forth in the foregoing answer and new matter are true and correct to the best of my
knowledge, information and belief. I understand that fl31se statements herein are made
subject to the penalties of 18 Pa. C.SA Section 4904 relating to unsworn falsification
to authorities.
August 1ft, 2005
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KENNETH R. WHITSON
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of defendants Answer
upon the plaintiff by placing same in the United States: mail at Carlisle, Pennsylvania,
Regular Mail on this undersigned date and addressed as follows:
DANIEL D WORLEY ESQ
WORLEY & WORLEY
101 E PHilADELPHIA ST
YORK PA 17403
AU9Ust:!J..... 2005
AROLD S. IRWI
Attorney for Defen
64 South Pitt Street
Carlisle, PA 17013
717-243-6090
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II
Francis Worley, JL and
Daniel T Worley
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO, 2005-4217 CIVIL TERM
v,
CIVIL ACTION - QUIET TITLE
Kenneth R Whitson,
Defendant
PLAINTIFFS' REPLY TO NEW MATTER
AND NOW COME the Plaintiffs, Francis Worley, JL and Daniel T. Worley by and
through their attorney, Daniel D, Worley, WORLEY & WORLEY, and Reply to the New
Matter of Defendant, Kenneth R Whitson,
17, No Response required. If a response is deemed to be required, the averments
contained herein are denied,
18. Neither Admitted nor Denied, After reasonable investigation, Plaintiffs are
without sufficient knowledge or information to form a belief as to the truth of the
allegations of this Paragraph and the same are therefore neither Admitted nor
Denied and proof demanded at the time of trial,
19, Denied. The averments in this paragraph contain conclusions of law and fact to
which no response is required. If a response is deemed to be required, the
averments contained herein are denied. By way of further reply, it is specifically
denied that Plaintiffs' and their predecessor in title used Old Town Road to
access their property, They have and continue to use Whitson Road as access,
20. Denied. It is specifically denied that the purpose of this action is to force
Defendant to give up a right-of-way. On the contrary, the purpose of this action
is to confirm Plaintiffs' right to use Whitson Road as access to their property, By
way of further reply, Defendant's refusal to acknowledge Plaintiffs' right to use
Whitson Road as access to their property directly caused Plaintiffs' to lose a
contract for sale of the land,
II
21, Denied, The averments in this paragraph contain conclusions of law and fact to
which no response is required, If a response is deemed to be required, the
averments contained herein are denied.
22. Denied, The averments in this paragraph contain conclusions of law and fact to
which no response is required. If a response is deemed to be required, the
averments contained herein are denied
WHEREFORE, Plaintiffs, Francis Worley, Jr. and Daniel T Worley, request this
Honorable Court enter Judgment for in their favor as requested in their Complaint plus
Plaintiffs' costs and reasonable attorney fees.
Respectfully submitted,
9-;' " DC)
Date
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Daniel D, Worley, Esquire
WORLEY & WORLEY
101 E Philadelphia Street
York, PA 17403
(717) 854-5914
Attorney for Plaintiff
II
VERIFICATION
I verify that the statements made in the foregoing Reply to New Matter are true
and correct I understand that false statements herein are made subject to the penalties
of 18 Pa.C,S, 94904 relating to unsworn falsification to authorities.
9 -11I-05
Date
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CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Reply to New Matter
upon Harold S, Irwin, III, Esquire, by depositing same in the United States Mail, first
class, postage pre-paid on the /(0 day of 5(rlQv..~'" 2005, from Carlisle,
Pennsylvania. addressed as follows:
Harold S, Irwin, III Esquire
64 South Pitt Street
Carlisle, PA 17013
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Daniel D~ Worley, Esquire f'
WORLEY & WORLEY
101 E, Philadelphia Street
York, PA 17403
(717) 854-5914
Attorney for Plaintiffs
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SHERIFF'S RETUEN - REGULAR
CASE NO: 2005-04217 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WORLEY FRANCIS JR ET AL
VS
WHITSON KENNETH R
DAVID MCKINNEY
Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
WHITSON KENNETH R
the
DEFENDANT
, at 2013:00 HOURS, on the 19th day of August
, 2005
at 72 SMITH ROAD
GARDNERS, PA 17324
by handing to
KENNETH WHITSON
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Postage
Surcharge
So Answers:
18.00
6.40
.37
10.00
.00
34.77
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R. Thomas Kline
08/22/2005
WORLEY & WORLEY
Sworn and Subscribed to before By:
me this J-I day of
<;'l{j:~>AD
ro ta
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in dupllcate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
o for JURY trial at the next tenn of civil court.
[if] for 1ria1 without a jury.
CAPTION OF CASE
(entire caption Must be stJIted infult)
(check one)
I;1Civil Action - Law
LJ Appeal from arbitration
o
Francis Worley, Jr. and
Daniel T. Worley (plaintiff)
( other)
V8.
The trial list will be called on
and January 9, 2007
Kenneth R. Whitson
(Defendant)
Trials commence on Feb. 5. 2007
vs.
PretrlalswlllbeheJdon Jan. 17, 2007
(Briefs are due 5 days before pretrials
No. 2005-4217
.ci vi 1 Tenn
Indicate the attorney who will try case for the party who files this praecipe:
Daniel D. Worley 101 E. Philadelphia S~. York, PA 17401
Indicate trial counsel for other parties if known:
Harold S. Irwin III, Esq. 64
This case is ready for trial.
S.Pitt street Carlisle PA 17013
Signed: ~/ P ~1~-
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Print Nanre: Daniel D. Worley
Date: 10-30-06
Attorney for: Plaintiffs
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FRANCIS WORLEY, .lR. .nd
DANIEL T. WORLEY
PI.lnt....
:: IN THE COURT OF COMMON PLEAS OF
:: CUMBERLAND COUNTY PENNSYLVANIA
.
.
Y.
:: CIVIL ACTION. LAW
KENNETH R. WHITSON
Defend.nt
:: NO. 2005 - 4217 CIVIL TERM
:: ACTION TO QUIET TITLE
PETITION FOR RULE TO SHOW CAUSE
NOW comes Harold S. Irwin, III, Esquire, attorney for defendant, and presents this petition for a
rule to show cause, representing as follows:
1. Petitioner is Harold S. Irwin, III, attorney for defendant, with offices at 64 South Pitt
Street, Carlisle, Cumberland County, Pennsylvania 17013.
2. Respondents are the defendant, Kenneth R. Whitson, an adult individual with a mailing
address of 74 Smith Road, Gardners, Cumberland County, Pennsylvania 17324, and the
plaintiffs, Francis Worley, Jr. and Daniel T. Worley, whose legal counsel is Daniel T. Worley,
Esquire, with offices located at 101 East Philadelphia Street, York, York County, Pennsylvania
17401.
3. Petitioner has represented the defendant in this matter since August, 2005.
4. The current action involves the plaintiffs attempt to establish a right-of-way over land
owned by the defendant. The pleadings are closed, discovery has been completed and
plaintiffs have listed the matter for trial in February, 2007.
5. Petitioner has requested numerous times that the defendant provide petitioner with
additional retainers for his services, to pay monthly invoices for attorney fees previously billed
and to respond to correspondence regarding the further handling of his case; however, the
defendant is unwilling or unable to do so and has not communicated with petitioner since May,
2006.
At
6. Specifically, in addition to previous requests from petitioner to the defendant for
payment of monthly invoices, petitioner last wrote to defendant on October 31,2006, requesting
payment of his current account and a retainer for the trial. Petitioner also advised defendant
that if he did not respond to the letter within ten days, petitioner would file a petition to withdraw
as his counsel.
7. Despite petitioner's continued patience, as of this date, defendant has not responded to
these letters nor made any effort to reduce his long overdue account with petitioner or to pay
the retainer for the upcoming trial. Neither has he communicated with petitioner in order to
continue negotiations with the plaintiffs or to prepare for trial.
B. Accordingly, differences have arisen between defendant and petitioner regarding the
handling of this matter and petitioner is unwilling to continue his representation of defendant in
light of the failure to pay for legal services or to communicate about his case.
9. Your petitioner believes and therefor avers that defendant has adequate time to find
substitute counsel, if necessary, should this Court grant petitioner's request herein.
WHEREFORE, petitioner requests your Honorable Court to enter a rule upon the respondents
to show cause why petitioner should not be permitted to withdraw from this case as counsel for
defendant.
HAROLD S. IRWIN, III
Petitioner
November 10, 2006
64 South Pitt Street
Carlisle, PA 17013
717 -243-6090
Supreme Court 10 No. 29920
.,
VERIFICATION
The foregoing petition is true and correct to the best of my knowledge, information and belief.
understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A.
Section 4094, relating to unsworn falsification to authorities.
November 10,2006
HAROLD S. IRWIN III
Petitioner
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FRANCIS WORLEY, JR. AND,
DANIEL T. WORLEY
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-4217 CIVIL
v.
CIVIL ACTION - LAW
KENNETH R. WHITSON,
DEFENDANT
: ACTION TO QUIET TITLE
ORDER OF COURT
AND NOW, this 16th day of November, 2006, upon consideration of the Petition
to Withdraw as Counsel filed by the Petitioner, IT IS HEREBY ORDERED AND
DIRECTED that:
1. A Rule is issued upon the Defendant and the Plaintiffs to show cause why the
Petitioner should not be granted permission to withdraw as counsel of record for the
Defendant;
2. The Defendant and the Plaintiffs will file an answer on or before
December 6, 2006;
3. If no answer to the Rule to Show cause is filed by the required date, the relief
requested by Petitioner shall be granted upon the Court's receipt of a Motion requesting
Rule be made Absolute. If the Respondents file an answer to this Rule to Show Cause,
and the answer raises disputed issues of material fact, an evidentiary hearing will then
be scheduled. The Prothonotary is directed to forward said Answer to this Court.
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4. Service to be by regular mail upon Defendant and upon Plaintiffs' Attorney of
record, Daniel T. Worley, Esquire.
Harold S. Irwin, III, Esquire
Petitioner \
Daniel T. Worley, Esquire /
Attorney for Plaintiffs
Kenneth R. Whitson
Defendant
bas
By the Court,
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J.
M. L. Ebert, Jr.,
11- fl--(dt: C~ ~I-
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HAROLD S. IRWIN, III, ESQUIRE
SUPREME COURT ID NO. 28820
84 SOUTH PITT STREET
CARLISLE, PA 17013
717--243--4S01O
ATTORNEY FOR DEFENDANTS
FRANCIS WORLEY, JR. and
DANIEL T. WORLEY
Plaintiffs
= IN THE COURT OF COMMON PLEAS OF
= CUM.ERLAND COUNTY PENNSYLVANIA
=
Y.
= CIVIL ACTION. LAW
KENNETH R. WHITSON
Defendant
= NO. 2008 - 4217 CIVIL TERM
= ACTION TO QUIET TITLE
PETITION TO MAKE RULE ABSOLUTE
NOW comes Harold S. Irwin, III, Esquire, attorney of record for the defendants and presents
this petition to make the rule absolute, representing as follows:
1. On November 16, 2006, your petitioner obtained a rule upon the parties to show cause
why petitioner should not be permitted to withdraw as counsel for defendant.
2. Said Rule was made returnable no later than December 6,2006, after service by regular
mail upon counsel for the plaintiffs and upon defendant.
3. Service of the Rule was made upon the plaintiffs' counsel and upon defendant, by
regular mail sent to them on November 18, 2006.
4. Neither plaintiffs' counsel nor the defendant filed an answer to the Rule to Show Cause
by December 6, 2006, or expressed any objection to petitioner's withdrawal as counsel.
WHEREFORE, petitioner requests that your Honorable Court make the rule issued upon the
parties absolute and in accordance therewith permit petitioner to withdraw as counsel for the
plaintiff .
December 7,2006
64 South Pitt Street
Carlisle, PA 17013
(717) 243-6090
Supreme Court 10 No. 29920
....
VERIFICATION
I verify that the statements made in the above petition are true and correct. I understand that
false statements made herein are subject to the penalties of 18 Pa.C.S. Section 4904 relating
to unsworn falsification to authorities.
December 7,2006
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HAROLD S. IRWIN, III
Petitioner
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Francis Worley, Jr. and
Daniel T. Worley
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
Kenneth R. Whitson
Defendant
No. 05-4217 CIVIL
ORDER OF COURT
AND NOW, this 5th day of December 2006, the non-jury trial in the above
referenced case has been assigned to this Court. Prior to setting an actual trial date
IT IS HEREBY ORDEI~ED AND DIRECTED that the parties in this case file a pre-trial
memorandum with the Court on or before December 26, 2006 in the following format:
I. A concise statement of factual issues to be decided at trial.
II. A list of witnesses the party intends to call at trial along with a concise
statement of their anticipated testimony.
III. A list of all exhibits each party anticipates presenting at trial.
IV. A statement of any legal issues each party anticipates being raised at trial
along with copies of any cases which may be relevant to resolution of the stated issue.
V. An estimate of the anticipated time needed for the party to present its case.
Upon receipt ancl review of these memorandums, the Court will set a trial date for
this case.
By the Court,
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M. L. Ebert, Jr.,
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Daniel D. Worley, Esquire
Attorney for Plaintiffs
Harold S. Irwin, III, Esquire
Attorney for Defendant
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HAROLD S. IRWIN, III, DQUIRE
supa.IE COURT ID NO. 2020
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CARLISLE, PA 17013
717-24W080
AnORNBY FOR DEFENDANT
FRANCIS WORLEY, J" and
DANIEL T. WORLEY
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY PENNSYLVANIA
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v.
: CIVIL ACTION - LAW
KENNETH" WHITSON
Defendant
: NO. 2005 - 4217 CIVIL TERM
: ACTION TO QUIET TITLE
ORDER OF COURT
th
NOW, this JL day of December, 2006, on petition of Harold S. Irwin, III, Esquire, the rule
issued upon the parties to show cause why petitioner should not be permitted to withdraw as
counsel for defendant is hereby made absolute and leave for petitioner to withdraw as counsel
for defendant is granted.
By the Court,
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Francis Worley, Jr. and
Daniel T. Worley
Plaintiffs
V.
Kenneth R. Whitson
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 05-4217 CIVIL
ORDER OF COURT
AND NOW, this 4th day of January, 2007, the Court notes that the
Defendant has not filed the pre-trial memorandum required by this Court's order of
December 5,2006, accordingly;
IT IS HEREBY ORDERED AND DIRECTED that a pre-trial conference in
this case shall be held in the jury room for Courtroom No.5 on Friday, March 30, 2007 at
1 :30 p.m. and trial in this matter shall be held on Friday, May 4, 2007 at 9:30 a.m. in
Courtroom NO.5 of the Cumberland County Courthouse, Carlisle, Pennsylvania.
~iel D. Worley, Esquire
Attorney for Plaintiffs
~th R. Whitson
Defendant ~
Court Administrator
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FRANCIS D. WORLEY, JR. and
DANIEL D. WORLEY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
NO. 05-4217 CIVIL
KENNETH R. WHITSON,
Defendant
QUIET TITLE ACTION
ENTRY OP APPEARANCE
I hereby enter my appearance as attorney for
:::::t:,R~o::itson. in the above captioned ac~on.
Shugh
Court
10 West High St t
Carlisle, PA 17013
(717) 241-4311
CC Daniel D. Worley, Esquire, Attorney for Plaintiffs
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FRANCIS D. WORLEY, JR. and
DANIEL D. WORLEY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
NO. 05-4217 CIVIL
KENNETH R. WHITSON,
Defendant
QUIET TITLE ACTION
MOTION FOR JUDGMENT ON THE PLEADINGS
PURSUANT TO PA.R.C.P. 1034
Kenneth R. Whitson, Defendant above captioned, by his
attorney, Dale F. Shughart, Jr., Esquire, prays Your Honorable
Court to enter judgment in his favor and against Francis D.
Worley, Jr. and Daniel D. worley, Plaintiffs, for the following
reasons:
1. The Plaintiffs filed the above captioned action in quiet
title seeking to establish a right-of-way across the land of the
Defendant, and the pleadings are closed.
2. The case is presently scheduled for trial before
Honorable M. L. Ebert, Jr. on May 4, 2007 with a pre-trial
conference scheduled for March 30, 2007. This case is being
listed for Argument Court on April 4, 2007, and will therefore
not unreasonably delay the trial.
3. The pleadings failed to disclose any averment which
would support the existence of such an easement by grant,
, .
implication, nor necessity.
4. The pleadings contain a general averment that Plaintiffs
have used the road in question for more than twenty-one (21)
year, but fails to contain any averment sufficient to support the
establishment of an easement by prescription (adverse
possession) .
5. Exhibit "A" to Plaintiffs' Complaint is a portion of the
Cumberland County Tax Map showing the properties in question,
which clearly demonstrates that the lane over which Plaintiffs
seek to establish a right-of-way proceeds through unenclosed
woodlot. pennsylvania has a statutory prohibition against
acquiring prescriptive easements through unenclosed woodlot. Act
of April 25, 1850, P.L. 561 ~21, 68 P.S. 411. See, Tricker v.
Pa. Turnpike Corom., 717 A.2d 1078 (pa. Cmwlth 1998).
6. Plaintiffs aver that their property is landlocked.
However, landlocked property without another means of access, has
the sole remedy to proceed by private viewer proceedings pursuant
to Act of June 13, 1836, P. L. 551, 36 P.S. 2731-2891, et seq.
See, In re: Interest of Robert W. Forrester, 575 Pa. 365, 836
A.2d 102 (2003).
7. This Motion is based on the pleadings and exhibits
attached thereto filed of record in the matter.
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Wherefore, the Defendant, Kenneth R. Whitson, prays Your
Honorable Court to enter judgment in favor of the Defendant and
against the Plaintiffs.
Dale F. r.
Supreme 19373
10 West High Street
Carlisle, PA 17013
(717) 241-4311
Attorney for Defendant,
Kenneth R. Whitson
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argunent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
FRANCIS D. WORLEY, JR. AND
DANIEL D. WORLEY
( Plaintiff)
vs.
KENNETH R. WHITSON
( Defendant)
f'K) .
2005
Civil 4217
x~I~
1. State matter to be argued (i.e., plaintiff's fT()tion for new trial, defendant's
danurrer to canplaint, etc.):
2. Identify counsel who will argue case:
(a) for plaintiff:
Address:
Daniel D. Worley, Esquire
\.JOrley & WOrley l'
101 East Philade]~hia Street
York, PA 17401
(b) for defeOOant:
Address:
Dale F. Shughart, Jr., Esquire
10 West High Street
Carlisle, PA 17013
3. I will notify all parties in writing wi thin two days that this case has
been listed for argurent.
4. Argument Court Date: April 4, 2007
Attorney for e
March 9, 2007
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Francis Worley, Jr. and
Daniel T. Worley
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
Kenneth R. Whitson
Defendant
No. 05-4217 CIVIL
ORDER OF COURT
AND NOW, this 15th day of March, 2007, the Court being in receipt of the Pre-
Trial Memorandum from the Defendant and a request from Counsel for the Defendant for a
continuance of the Pre-Trial Conference,
IT IS ORDERED AND DIRECTED that the request for a continuance of the Pre-Trial
Conference is GRANTED.
IT IS FURTHER ORDERED AND DIRECTED that the Pre-Trial Conference will be held
Wednesday, April 25, 2007, at 3:00 p.m. in chambers of Courtroom NO.5 of the Cumberland
County Courthouse, Carlisle, Pennsylvania. Trial in this matter is still scheduled for Friday,
May 4,2007 at 9:30 a.m.
By the Court,
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J.
M. L. Ebert, Jr.,
~niel D. Worley, Esquire
Attorney for Plaintiffs
r{ale F. Shughart, Jr., Esquire
/Attorney for Defendant
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Francis Worley, Jr. and
Daniel T. Worley
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2005-4217 CIVIL TERM
v.
CIVIL ACTION - QUIET TITLE
Kenneth R. Whitson,
Defendant
PRAECIPE
TO THE PROTHONOTARY
Please settle, withdral and discontinue the above-captioned matter on behalf of
the Plaintiffs. \
Respectfully submitted,
3- 1-/, O"{
Date
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Daniel D. Worley, Esquire
WORLEY & WORLEY
101 E. Philadelphia Street
York, PA 17401
(717) 854-5914
Attorney for Plaintiff
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fERTIFICA TE OF SERVICE
I hereby certify that I served a true and correct copy of the Praecipe to Settle,
Withdraw and Discontinue upon Dale F. Shughart, Jr. Esquire, by depositing same in
the United States Mail, firs class, postage pre-paid on the 21st day of March, 2007,
from Carlisle, Pennsylvania addressed as follows:
Dale F. Shughart, Jr.
10 West High Street
Carlisle, PA 17013
f;-'v::J tj} (l' Zy/
Daniel D. Worley, Esquire""
WORLEY & WORLEY
101 E. Philadelphia Street
York, PA 17403
(717) 854-5914
Attorney for Plaintiffs
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