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HomeMy WebLinkAbout05-5045 GNANA M. CHINNIAH aIkIa GNANACHANDRA M. CHINNIAH, Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. ; No. ())-50lfS' CIVIL TERM KENNETH L. BRETZ aIkIa KENNETH : CIVIL ACTION L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, Defendants. NOTICE TO DEFEND You have been sued in court, If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint, order and notice are served, by entering a written appearance personally or by attorney and by 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, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyer Referral Service 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 Americans with Disabilities Act of ] 990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office, All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. GNANA M. CHINNIAH aIkIa GNANACHANDRA M. CHINNIAH, Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . : No. OJ. 5u'!f KENNETH L. BRETZ aIkIa KENNETH : CIVIL ACTION L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, v. CIVIL TERM Defendants. COMPLAINT AND NOW COMES the Plaintiff, Gnana M, Chinniah alk/a Gnanachandra M, Chinniah, by and through his attorneys, Irwin & McKnight, to make the following Complaint and in support thereof avers as follows: I. Plaintiff, Gnana M, Chinniah alk/a Gnanachandra M, Chinniah, is an adult individual with a principal residence located at 506 Erford Road, Camp Hill, Cumberland County, Pennsylvania 170 II. 2, Defendants Kenneth L. Bretz alk/a Kenneth L. Bretz, Sf. and Gail nene Bretz are husband and wife with their principal residence located at 26 Riverview Drive, Enola, Cumberland County, Pennsylvania 17025, 3, Defendant Mary Ann Bretz is the mother of Defendant Kenneth L. Bretz and is an adult individual with her principal residence located at 40 Creekside Drive, Enola, Cumberland County, Pennsylvania 17025, 4, Defendant Mary Ann Bretz was married to Vance W, Bretz until his death on or about May 21, 1996, 2 5. Defendant Mary Ann Bretz and her husband became owners of certain land along Creekside Drive by deed dated January 25,1950, and recorded January 30,1950, in the Office of the Recorder of Deeds for Cumberland County in Deed Book "J", Volume 14, Page 23. 6, On or about June 27, 1975, Defendant Mary Ann Bretz and her husband had a Subdivision Plan prepared for the property by Ronald S, Raffensperger, Registered Surveyor, (hereinafter the "Plan"), which Plan is recorded in the Office of the Recorder of Deeds for Cumberland County in Plan Book 27, Page 63, 7, The Plan subdivided the property owned by Defendant Mary Ann Bretz and her husband into two lots, namely, Lot No, 1, with an address of 36 Creekside Drive, Enola, Cumberland County, Pennsylvania (sometimes hereinafter referred to as the "Plaintiff's parcel"), and Lot No, 2, with an address of 40 Creekside Drive, Enola, Cumberland County, Pennsylvania (sometimes hereinafter referred to as the "Defendants' parcel"). 8, Prior to June 27, 1975, both Plaintiff's parcel and Defendants' parcel had common ownership, with Defendant Mary Ann Bretz and her now deceased husband having fee simple ownership of both tracts, 9, The Plan notes the presence of a 2-story aluminum building on the Defendants' parcel, in which Defendant Mary Ann Bretz continues to reside, 10. The Plan also notes the presence of a block ranch home on the Plaintiff's parcel. II. Shortly after the Plan was prepared, Defendant Mary Ann Bretz and her husband conveyed the Plaintiff's parcel in fee simple to their son, Vance W, Bretz, Jr., and his wife, Linda Lee Bretz, by deed dated December 9, 1975, and recorded January 12, 1976, in the Office ofthe Recorder of Deeds for Cumberland County in Deed Book "K", Volume 26, Page 348, 3 12. Upon information and belief, the son and daughter-in-law of Defendant Mary Ann Bretz began residing upon Plaintiffs parcel in or about 1975, and owned the property until its sale to Plaintiff in 2005. 13, The property was conveyed in fee simple to Plaintiff by deed dated May 20, 2005, and recorded May 25, 2005, in the Office of the Recorder of Deeds for Cumberland County in Deed Book 269, Page 92, A time-stamped copy of the said deed to Plaintiff is attached hereto and incorporated herein as Exhibit "A." 14. Defendants' parcel was conveyed by Defendant Mary Ann Bretz to her other son and daughter-in-law, Defendants Kenneth L. Bretz and Gail Ilene Bretz, in fee simple by deed dated June 9, 2000, and recorded June 9, 2000, in the Office of the Recorder of Deeds for Cumberland County in Deed Book 223, Page 55, A true and correct copy of the said deed between Defendants is attached hereto and incorporated herein as Exhibit "B." 15. Upon information and belief, by written or oral agreement or license Defendant Kenneth L. Bretz permits his mother to continue to reside upon Defendants' parcel. 16. The Plaintiff s parcel and Defendants' parcel are adjacent and contiguous, with the common boundary being the southern boundary of Plaintiffs parcel and the northern boundary of Defendants' parcel, 17. Both parcels have frontage along Creekside Drive which is now a state road, not an East Pennsboro Township road. 18. However, there is a steep grade from the home on Plaintiffs parcel leading up to the edge of Creekside Drive, as well as a guardrail along most of the right of way between the home and road, 19, The rear of both parcels borders along the Conodoguinet Creek. 4 20. Therefore, the sole means of access from Creekside Drive to Plaintiffs parcel is through the existing road and parking lot on Defendants' parcel. 21. Upon information and belief, the only means of access that has ever been utilized to reach Plaintiffs parcel is from the existing driveway and parking lot on Defendants' parcel. 22, Following the purchase by Plaintiff of Lot No. I in May 2005, Plaintiff continued to use the existing driveway and parking lot in order to access his property, 23, Plaintiff has recently been expending significant sums in repairing and improving the home which has existed on the property since approximately 1975, 24, It was only when Plaintiff was nearing the end of his improvements to the property that Defendants have placed "No Trespassing" signs and physically blocked the entrance to the driveway from Creekside Drive with various vehicles and trailers, 25, In contradiction to the continued use of the easement by Plaintiff and his predecessors in title, on or about September 4, 2005, Defendants threatened to block Plaintiff s vehicles that were parked in the parking lot and contacted the police in order to force Plaintiff s removal from the driveway and parking lot. 26, Plaintiff has secured the necessary permits and approvals, but is unable to proceed with connection of the home to the public sewer system by virtue of Defendants' wrongful actions, 27, Despite the many years of use of the driveway and parking lot as the sole means of access to Plaintiffs' parcel, Defendants have willfully and wrongfully deprived Plaintiff of the right to use this driveway and parking lot by physically blocking the entrance to the driveway with various vehicles and trailers, placing "No Trespassing" signs, and by verbally threatening Plaintiff. 5 28. Defendants' willful and wrongful actions have greatly harmed Plaintiff by effectively preventing him from having any reasonable access to his property and by preventing him from being able to complete his improvements, COUNT I - EASEMENT BY IMPLICATION 29, The averments of fact alleged in items one (1) through twenty-eight (28) of this Complaint are made a part hereof and incorporated herein by reference. 30, In 1975, Defendant Mary Ann Bretz and her now deceased husband subdivided their property along Creekside Drive in order that their son and daughter-in-law could construct and own a home on the subdivided lot now owned by Plaintiff. 31, Upon information and belief, the only access from Creekside Drive to the subdivided parcel at the time of severance was across the driveway and parking area on Defendants' parcel. 32, The only existing access from Creekside Drive to Plaintiffs parcel remains across the driveway and parking area on Defendants' parcel. 33, The use of the driveway and parking lot across Defendants' parcel has been continuous and obvious at least since 1975 when a home was constructed on the subdivided parcel. 34, The driveway and parking lot are visible from the home on Defendants' parcel, and in fact both are still used by all of the Defendants for access to their own home and other improvements. 35, Defendants have known that the continued use of the driveway and parking area is necessary for the continued access to and use of Plaintiff s parcel. 6 36, Defendant Mary Ann Bretz continues to live and reside upon Defendants' parcel, and knows that the sole means of access from Creekside Drive to Plaintiffs parcel is across the driveway and parking lot used by her other son and daughter-in-law since at least 1975. 37, Defendants Kenneth L. Bretz aJk/a Kenneth L. Bretz, Sf. and Gail Ilene Bretz knew of the presence of the subdivided lot and improvements thereon at the time of the conveyance of Defendants' parcel to them in June 2000. 38, Defendants Kenneth L. Bretz aJk/a Kenneth L. Bretz, Sr, and Gail Ilene Bretz knew or should have reasonably been expected to know that the existing driveway and parking lot were the sole means of access to Plaintiff's parcel. 39, At the time of conveyance of Defendants' parcel in June 2000, Plaintiffs parcel was still owned by the other son and daughter-in-law of Defendant Mary Ann Bretz. 40, A reasonably prudent investigation would have revealed the existence of the use of the driveway and parking area to access Plaintiffs parcel, as well as the need to continue to use said access for the reasonable usefulness and enjoyment of Plaintiffs parcel and the existing improvements thereon. WHEREFORE, Plaintiff respectfully requests that this Honorable Court: a. Declare the existing driveway and parking area an express and enforceable right of way for the benefit of ingress, egress and regress over Defendants' land by Plaintiff and his successors in interest; b, Order Defendants to remove the obstructions and signs which have been placed and created across the right of way by reason of Defendants' actions; c, Enjoin and restrain Defendants and their agents, employees, assigns and successors in interest from further interfering with Dr obstructing Plaintiff s easement Dr right of way existing over the driveway and parking area crossing over and existing upon Defendants' parcel; 7 d, Alternatively, award Plaintiff damages for deprivation of the reasonable use of his properties; e. Retain jurisdiction to ascertain that the Court's decree is obeyed; and f, Award such other and further relief as this Court may deem appropriate, proper, necessary and just. COUNT II - EASEMENT BY NECESSITY 41. The averments of fact alleged in items one (1) through forty (40) of this Complaint are made a part hereof and incorporated herein by reference, 42, Prior to 1975, Defendant Mary Ann Bretz and her now deceased husband owned the entire property at issue in this matter. 43, In 1975, Defendant Mary Ann Bretz and her now deceased husband subdivided their property and conveyed one of the tracts to their son and daughter-in-law for the construction of a residence. 44. The driveway and parking area crossing the Defendants' parcel was necessary in 1975 for access to and use of the subdivided parcel conveyed to Plaintiffs predecessor in interest. 45, The driveway and parking area crossing the Defendants' parcel continue to be necessary for access to and use of the Plaintiffs' parcel. 46. Because of the location and natural boundaries of the Plaintiff s parcel, the sole means of access from Creekside Drive to Plaintiffs parcel is through the existing road and parking lot on Defendants' parcel. 47. Because of the location and natural boundaries of the Plaintiff s parcel, Creekside Drive is the only public road to provide access thereto. 8 48, The access across the existing driveway and parking area to Plaintiffs parcel is not a mere matter of convenience, but is a matter of strict necessity because of the location and boundaries of the property, WHEREFORE, Plaintiff respectfully requests that this Honorable Court: a, Declare the existing driveway and parking area an express and enforceable right of way for the benefit of ingress, egress and regress over Defendants' land by Plaintiff and his successors in interest; b, Order Defendants to remove the obstructions and signs which have been placed and created across the right of way by reason of Defendants' actions; c, Enjoin and restrain Defendants and their agents, employees, assigns and successors in interest from further interfering with or obstructing Plaintiff s easement or right of way existing over the driveway and parking area crossing over and existing upon Defendants' parcel; d, Alternatively, award Plaintiff damages for deprivation of the reasonable use of his properties; e, Retain jurisdiction to ascertain that the Court's decree is obeyed; and f, Award such other and further relief as this Court may deem appropriate, proper, necessary and just. COUNT III - ADVERSE EASEMENT 49, The averments of fact alleged in items one (I) through forty-eight (48) of this Complaint are made a part hereof and incorporated herein by reference, 50. In the alternative, the use of the existing driveway and parking area since the subdivision of the properties and construction of a second residence in 1975, show that the access from Creekside Drive has been in existence for more than twenty-one (21) years, 51. Plaintiff and his predecessors in title, namely the son and daughter-in-law of Defendant Mary Ann Bretz, have enjoyed a free and uninterrupted easement or right of way 9 across and on the existing driveway and parking area crossing Defendant's land for more than twenty-one (21) years, 52. Plaintiff and his predecessors in title have enjoyed the free and uninterrupted easement or right of way for the purpose of ingress, egress and regress by vehicle and foot to enter and enjoy Plaintiffs parcel for more than twenty-one (21) years. 53, The use by Plaintiff and his predecessors in title of the existing driveway and parking area on Defendants' parcel was open, visible, notorious, uninterrupted and adverse for a period well exceeding twenty-one (21) years, 54. Through the use of the driveway and parking area by himself and his predecessors in title, Plaintiff has thereby acquired a prescriptive easement or right of way over driveway and parking area crossing and existing upon Defendants' land. 55. Solely as a result of Defendants' intentional acts, namely the placement of vehicles and signs across the driveway from Creekside Drive, reasonable and open passage to Plaintiffs parcel has been impeded, obstructed, blocked, and otherwise altered. 56, On September 9,2005, Defendant Kenneth L. Bretz alk/a Kenneth L. Bretz, Sr, threatened to block Plaintiff s vehicles from leaving the existing parking area and returning to Creekside Drive. 57. On that same date, Defendant Kenneth L. Bretz alk/a Kenneth L. Bretz, Sr. contacted the East Pennsboro Township police in order to further threaten Plaintiff and force him to remove his vehicles from the existing easement or right of way, 58, Defendants' actions in obstructing Plaintiffs easement or right of way and depriving Plaintiff of the reasonable use thereof has caused and continues to cause Plaintiff 10 irreparable harm by preventing open, passable and unobstructed use of said right of way and thereby preventing reasonable access and use of Plaintiff s parcel and improvements. 59. By reason of Defendants' actions, Plaintiff has been deprived of the reasonably open and unobstructed passage across the existing driveway and use of the existing parking area to gain ingress, egress and regress to his respective land and improvements, WHEREFORE, Plaintiff respectfully requests that this Honorable Court: a. Declare the existing driveway and parking area an express and enforceable right of way for the benefit of ingress, egress and regress over Defendants' land by Plaintiff and his successors in interest; b. Order Defendants to remove the obstructions and signs which have been placed and created across the right of way by reason of Defendants' actions; c, Enjoin and restrain Defendants and their agents, employees, assigns and successors in interest from further interfering with or obstructing Plaintiff s easement or right of way existing over the driveway and parking area crossing over and existing upon Defendants' parcel; d, Alternatively, award Plaintiff damages for deprivation of the reasonable use of his properties; e, Retain jurisdiction to ascertain that the Court's decree is obeyed; and f. Award such other and further relief as this Court may deem appropriate, proper, necessary and just. Respectfully submitted, IRWIN & McKNIGHT Dated: September 26, 2005 By:~/l~ Douglas . Miller, Esquire Supreme Court J.D. # 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attorney for Plaintiff Gnana M, Chinniah 11 VERIFICATION The foregoing document is based upon infonnation which has been gathered by my counsel and myself in the preparation of this action, I have read the statements made in this document and they are true and correct to the best of my knowledge, infonnation and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C,S,A. Section 4904, relating to unsworn falsification to authorities. M.. . C J? '. q GNANACHANDRA M. CHINNIAH Date: SEPTEMBER 26, 2005 PARCEL 0916105T042A - ,__ . _.M '.1 i.._ '-.-;\ ',-" r ..... .. L,. This Deed ZGG5 nR~ 25 PM 1 50 Made the ~ day of (Y) fl<j , in the year of our Lord two thousand five (2005). Between VANCE W. BRETZ, JR. and LINDA LEE BRETZ, husband and wife, of Cumberland County, Pennsylvania, parties of the first part, GRANTORS, and married man GNANA M. CHINNIAH I of Cumberland County, Pennsylvania, party of the second part GRANTEE, WITNESSETH, that in consideration of Fifty Five Thousand One Hundred and One Dollar- 00/100 ($55,101.00) Dollars, in hand paid, the receipt whereof is hereby acknowledged, the said Grantors do hereby grant and convey to the said Grantee: ALL that certain lot ofland situate in East Pennsboro Township, Cumberland County, Penn- sylvania, being more particularly bounded and described as follows: BEGINNING at a point on the southern side of Creekside Drive, said point being at the di- viding point between Lot No, 1 and Lot No, 2 on the hereinafter mentioned Subdivision Plan; thence continuing along said dividing line, South 43 degrees 30 minutes East, four hundred eight and sixty- eight hundredths (408.68) feet to a point on the Conodoguinet Creek; thence along said creek, North 31 degrees 15 seconds East, fifty-three and eight-three hundredths (53,83) feetto an iron pin; thence along land now or formerly of Leroy Wittle, North 38 degrees 37 minutes 35 seconds West, three hundred ninety-five and seventy-three hundredths (395,73) feet, through a concrete monument, to a nail on the southern side of Creekside Drive, thence continuing along Creekside Drive South 46 de- grees 30 minutes West, 8 5.50 feet, e1:"roneously set forth in prior deee. as -144.50 feet, to a point, the Place of BEGINNING. BEING Lot No. 1 on Subdivision Plan of Ronald S. Raffensperger, Registered Surveyor, dated June 27, 1975, and recorded in Cumberland County Recorder of Deeds in Plan Book 27, Page 63. HAVING THEREON ERECTED a block ranch dwelling, said premises being number and known as 36 Creekside Drive, Enola, Pennsylvania. 1 BEING the same premises which Vance W. Bretz and Mary Ann Bretz, husband and wife, by their deed dated December 9, 1975, and recorded in the office of the Recorder of Deeds in and for Cwnberland County, Pennsylvania in Record Book K 26, Page 348, granted and conveyed to Vance W. Bretz, Jr. and Linda Lee Bretz, the Grantors herein. SUBJECT, NEVERTHELESS, to the covenants, restrictions and reservations which run with the land and are binding upon and illure to the benefit of the Grantee, her heirs and assigns, and which covenants, restrictions and reservations are set forth of record. TOGETHER with all and singular, the said property, improvements, ways, waters, water courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belong- ing, or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and demand whatsoever, of the said Grantors, in law, equity or otherwise howsoever, of, in and to the same and every part thereof. TO HAVE AND TO HOLD the said hereditaments and premises hereby granted or men- tioned, and intended so to be, with the appurtenances, unto the said Grantee, his heirs and assigns, to and for the only proper use and behoof of the said Grantee, his heirs and assigns forever, AND the said Grantors hereby covenant and agree that they will warrant specially the prop- erty hereby conveyed. IN WITNESS WHEREOF, the said Grantors have to these presents set their hands and sellls. Dated the day and year first above written. SIGNED, SEALED AND DELIVERED ..,IN THE PRE~NCE OF ')/~' ~ ~ . \.. " :'fr-ltJ'UJ ",7\ LIr2tn J '\ Ii. , \ \ ,i JJ\~jJJllf:1tkt%,du I3zG; (SEAL) Vance W. Bretz, Jr, 1/ &, .-r/ \l ~~1J.-.tJ 'if (SEAL) 2 STATE OF PENNSYLVANIA COUNTY OF York S8. On this the :<'0 dayof fY77J~ ,2005, before me, the undersigned offi- cer, personally appeared Vance W. Bretz, J . and Linda Lee Bretz, husband and wife, known to me, (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed same for the purposes therein contained, In witness whereof, I hereunto set my hand and official seal, I NOla,,;1 Sea' -JI ~ Donna l. ChromstAr, Nc~'v p'Jt' ~. OlllsbHl'f Bore, Yor',~ C 'J ,'r . fv1y Co.'T"iTI!~S;':') [ fl':Y - ,,' '~..6 Menlbcr. Pern1syJValiiap:s;:~tbn -OJ No-C:ries ~~ ~ . mt~AL) 'Tit of Officer I do hereby certify that the precise residence and complete post office address of the witlilll namedGranteeis5D~ F:r~J"1Z-.J (\"'''''f Jj1tl, -pA J?tJlf . I ' fYlul c13,2005 ~*,4 . ,/lA.l&. Attorney r Grantee Jw~tf~ 3 rJ..'f \ R ' .<i. I '.:. (0.0 Special Hfcrrranty Deed Tax Parcel JD # Instrument' THIS DEED MADE THIS f~y OF<:(~N THE YEAR TWO THOUSAND 120001 BETWEEN: MARY ANN BRETZ wIdow woman. of E.st Pennllboro Townshio. Pennsvlvtlnlll. HEREINAFTER REFERRED TO AS "GRANTOR" AND KENNETH L, BRETZ AND GAIL ILENE BRETZ. husband and wile. of east Pennsboro Townshlo. Pennsvlvanla. HEREINAFTER REFERRED TO AS "GRANTEES" WITNESSETH, THAT INCONSIDERATION OF ONE (51.DD) DOLLAR, Nstural love and a"actlon IN HAND PAID. THE RECEIPT OF W1-IICH IS HEREBY ACKNOWLEDGED. THE GRANTOR DOES HEREBY CONVEY TO SAID GRANTEES. THEIR HEIRS AND ASSIGNS. ALL THAT CERTAIN TRACT LOT OR TRACT OF LAND situale in East Pennsboro Township. Cumberiand County. Pennsylvania, more particularly bounded and described as follows, to wit: BOUNDED on the north by the public road known as Creekside Drive; on the east by land now or formerly at George Reichert; one the south by the Conodoguinet Creek and on the west by land now or late of John Eckert; also known as Lot NO.2 in the her.einafter referred to Plot Plan. HAVING THEREON ERECTED A TWO STORY FRAME DWELLING HOUSE known as 40 Creekside Drive, Enola, Pennsylvania 17025. BEING THE SAME PREMISES which Vance W. Bretz and Mary Ann Bretz as husband and wife, received by deed dated the 25th day of January 1950, from Vance W, Bretz and recorded in the Cumberland County Recorder of Deeds Office in Deed BookJ, Vol. 14, Page 23 on the 30th day of January 1950. except for a tract of land known as Lot NO.1 on a subdivision plan at D.P. Raffensperger of June 27,1975 as will more fully appear in Plan Book _ Page _ as recorded in the Recorder of Deeds Office of Cumberland County, which was conveyed to Vance W. Bretz Jr. and Linda Lee Bretz by deed dated December 9,1975 as will more fully appear in Deed Book K, Volume 26, Page 348. Vance W. Bretz died on the 21st day of May, 1996, thereby vesting sole title in his wife, Mary Ann Bretz. the grantor herein. ~cM Z23 In · 55 THIS IS A CONVEY ANCE FROM MOTHER TO SON AND WIFE AND IS THEREFORE EXEMPT FROM PENNSYLVANIA REALTY TRANSFER TAX, AND, the said GRANTOR hereby specially warrants the property conveyed, IN WITNESS WHEREOF, THE GRANTOR HAS HEREUNTO SET HER HAND AND SEAL, THE DAY AND YEAR FIRST ABOVE WRITIEN, SIGNED, SEALED AND DELIVERED IN THE PRES~E OF AI ~/.M.e~,; If? .~~ Mo::t ANN BRETZ (SEAL) ..w...................................*...**.........................._..........._........ COMMONWEALTH OF PENNSYLVANIA) ) 55, COUNTY OF CUMBERLAND ) ON THIS, the 9~f c::r-~ A,D,,2000, before me, the undersigned officer, personally appeared MARY ANN BRETZ, widow woman, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged she executed the same for the purposes therein contained., IN WITNESS WHEREOF, I hereunto set my hand and official seat c1i:1.lkQ~ /JfiL--- Notary Public M C ...... ......~~J At'r-, .... y ommlS ,.... ":'.~"";':":. '.. " Nell.riaIS.al .' t).'.~h"l"~'f. " Ea$f~~C=::~ty f /):~.. '':~.\ My CommIs$Ion EJlPlres NaY. 24, 2000 ~. :Ie . ..... ('): Member, PennsylVania o\sSoelaUon at Notalies . ". ',;. '\ ',? .- ...... "'r ~(, o't,. : I HEREBY CERTIFY, THAT THE PRECISE RESIDENCE OF THE GRANTEE9>J.s...::~::I.~":',~~ . 26 Riverview Drive Enola, PA 17025 .. /J f) '0 'S G:.> ~!E~ ..... Attorney For: --Ie ?1 ~ 8iiOK 223 fAGE · 56 ................................*............................................................ COMMONWEALTH OF PENNSYLVANIA) ) 55.: COUNTY OF CUMBERLAND ) RECORDED ON THIS 1 DAY OF '<>v--" A,D. 2000. IN THE RECORDER'S OFFICE OF SAID COUNTY IN DEED BOOK ;;?::t3. PAGE YS'"' GIVEN UNDER MY HAND AND THE SEAL OF ~?tl~ OFFICE. THE DATE ABOVE WRITTEN. ~ RECORDER . .::;. ,- c.-_. .~ CJ (~~: U ..~ '-. <.D :.~ " -' . .'-' , -., :3 (") . , '.' .....;. -. ..: f ~ :. .; ::1 fJ G , ", -, ,. ~ ~;~:::;;~~~:~~:::;J,.,. ~ ...~" '.'Ij't':il...._z,.-. i ~r'"",,' ,If'!,.,- .-...,.. .,j''J.'.\. ~_:~l(t..-.i... ...I ~.~ .::"~::t4";~."'.\l,1""" .",l~~~r*~4.1l-~1f:~)f:J~~,.':, .~'is.f!ffi'~1jr..;~~~;..\~!.t,..;, ~~ ~ -'. l~.~.~.~~\~~:~;~~i~,~~~.;::'~.{~;~ '. (ra<f"";.~\'",~~~,~ .....'.. i,)':" 1:.. ~_~.~~~"":.:.).-:-:;....r.. .~"'f,., ':""'t'.;rL'r..~~..i....~.,~'":,. . I.t' ...I,~~..,.:.~~..f:..,..#'. ...... N a en BOO~ 223 rAGE S1 ~ ~. n; It: '!\ -- ~ ~ ~ ~ ..4) Q QIQ ~ -..t:: <.l\ ~ - ~ ,.., C:':) c.:~) ~'_./~ !'.) 0) o '"""(.1 ~ .-1 :r:.-- r1';~ ;J~:, r;:"::'l' r.o_ .I ''','~ )~ ~) ,~n '"" ,...J-..... (,;":) U1 {"..l GNANA M. CIDNNIAH a/kJa GNANACHANDRA M. CIDNNIAH, Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 2005 - 5045 CIVIL TERM KENNETH L. BRETZ a/kJa KENNETH : CIVIL ACTION L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, Defendants. PETITION FOR PRELIMINARY INJUNCTION AND NOW, this ~ay of September, 2005, comes the Plaintiff, GNANA M, CHINNIAH aIkIa GNANACHANDRA M. CHINNIAH, by and through his attorneys, Irwin & McKnight, and respectfully petitions this Court for a preliminary i~unction pursuant to Pa. R. Civ, p, No, 1531, and in support thereof avers as follows: I. Plaintiff, Gnana M. Chinniah aIkIa Gnanchandra M, Chinniah (hereinafter "Chinniah") filed a Complaint against Defendants in this matter with regard to Defendants' blockage of the sole means of access to Plaintiffs property from Creekside Drive, 2, Plaintiffs Complaint avers that on or about September 4, 2005, Defendants threatened to block Plaintiff s vehicles that were parked in the existing parking lot and contacted the police in order to force Plaintiff s removal from the driveway and parking lot. 3. Plaintiffs Complaint further avers that despite the many years of use of the driveway and parking lot as the sole means of access to Plaintiffs' parcel, Defendants have willfully and wrongfully deprived Plaintiff of the right to use this driveway and parking lot by physically blocking the entrance to the driveway with various vehicles and trailers, placing "No Trespassing" signs, and by verbally threatening Plaintiff, 4. As recently as 1975, both of the two (2) properties at issue were owned by Defendant Mary Ann Bretz and her now deceased husband (hereinafter the "Parents"), 5, In 1975, the Parents subdivided the property and conveyed the lot now owned by Plaintiff to their son, Vance W. Bretz, Jr., and his wife, Linda Lee Bretz, by deed dated December 9, 1975, and recorded January 12, 1976, in the Office of the Recorder of Deeds for Cumberland County in Deed Book "K", Volume 26, Page 348, 6, Upon information and belief, Mr. and Mrs. Vance W. Bretz, Jr. began residing upon Plaintiff's parcel on or about 1975, and owned the property until its sale to Plaintiff in 2005, 7, No provision or indication of access to the subdivided properties was made on the recorded subdivided plan, 8, However, the sole means of access existing from Creekside Drive to Plaintiff's parcel is through the existing road and parking lot on Defendants' parcel. 9, Both parcels have frontage along Creekside Drive which is now a state road, however, there is a steep grade from the home on Plaintiff's parcel leading up to the edge of Creekside Drive, as well as a guardrail along most of the right of way between the home and road, 10, Furthermore, the rear of both parcels border along the Conodoguinet Creek. 2 11. The Parents continued to own the remaining lot noted on the subdivision plan until it was conveyed to their other son and daughter-in-law, Defendants Kenneth L. Bretz and Gail nene Bretz, in fee simple by deed dated June 9, 2000, and recorded June 9, 2000, in the Office of the Recorder of Deeds for Cumberland County in Deed Book 223, Page 55. 12, Defendant Mary Ann Bretz continues to reside upon the retained property upon which the driveway and parking lot continue to exist. 13. Following the purchase by Plaintiff of the subdivided lot from Mr. and Mrs, Vance W. Bretz, Jr, in May 2005, Plaintiff continued to use the existing driveway and parking lot in order to access his property, 14. As a result of Defendants' willful and wrongful actions in blocking vehicular access to Plaintiff s property from Creekside Drive, Plaintiff is unable to access his property in order to complete necessary repairs and improvements, or to otherwise utilize the structure. 15, Defendants actions and threats are thereby preventing Plaintiff continued open and unobstructed use of the existing driveway and parking area to gain ingress, egress and regress to his property for the reasonable use and enjoyment thereof. 16, The issuance of the preliminary injunction is reasonably suited to prevent further wrongful acts by Defendants and maintain the current status quo pending final resolution of Plaintiffs Complaint. 17, The issuance of a preliminary injunction will not cause undue inconvenience or loss to the Defendants, but will prevent irreparable injury to the Plaintiff, 3 18, Plaintiff has no adequate remedy at law to redress the continuing harm and injury caused by the Defendants' wrongful and unauthorized actions, 19, Plaintiff is likely to succeed in proving at trial that Defendants' activities are actionable and enjoinable, and that Plaintiff has an easement or right of way over the existing driveway and parking area either through implication, necessity, or adverse possession as alleged in Plaintiffs Complaint. 20. In support of this Petition for Preliminary Injunction, Plaintiff incorporates herein the Complaint filed in this action on September 26, 2005, as if the same were fully restated at length, WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an order enjoining and restraining Defendants and their employees, agents, assigns and successors in interest from further interfering with or obstructing Plaintiff s easement or right of way existing over driveway and parking lot crossing Defendants' property which provides access from Creekside Drive, and further enjoining and restraining the interference with or obstruction of Plaintiffs use of said easement or right of way, and retain jurisdiction of this matter to ascertain that the Court's order and decree is obeyed, Respectfully submitted, IRWIN & McKNIGHT Date: September 28, 2005 By: Dougl G. Miller, squire Supreme Court I.D. No, 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff Gnana M, Chinniah 4 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: KENNETH L. BRETZ AlKf A KENNETH L. BRETZ, SR. 26 RNERVIEW DRNE ENOLA, PA 17025 GAIL ILENE BRETZ 26 RNERVIEW DRNE ENOLA, PA 17025 MARY ANN BRETZ 40 CREEKSIDE DRNE ENOLA, PA 17025 Date: September 28, 2005 IRWIN & McKNIGHT Douglas Supreme ourt LD, No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 {'" " () ~.~ " =2 ...., C~ (:;:::> Of' (/) 1"1 -0 "', c:> o " ~:!l ,-- -r:,rr: P~-~) :.~~ C) - ~--:: -11 'c~ (') (,5 IT! :~ ,< ~ (--:.) C> (.oJ GNANA M. CHINNIAH a/kIa GNANACHANDRA M. CHINNIAH, Plaintiff, v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 2005 - 5045 CIVIL TERM KENNETH L. BRETZ a/kIa KENNETH : CIVIL ACTION L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, Defendants. AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA: : SS, COUNTY OF CUMBERLAND I, d4N.rfJ c'"",a.v/~ , being sworn according to law, deposes and says that I am a competent adult over 18 years of age; that I served a copy of the Rule to Show Cause and accompanying Petition for Preliminary Injunction upon the Defendant, d4/'!" :Lc:E4e AR.i7z , by personally h ing him/her a true and correct copy thereof and informing himJher of its contents at '''.Fdv/~ IJ,z on t:!X:7?;).IjE-< , at f3,: 55 o'clock A-m, Sworn to and subscribed Before me this '1 y.I, Day of ()rr.rJh~ 2005 ~~ Notal' Public COMMONWEALTH OF PENNSY~VANIA NcIariaI SellI MllI1ha L Noel, NctaIy PuIlIc CaIII8Ie Boro. CI.mbeo1ai1d C<lUnly MtCanmiesicn E>pIresSepl.l8. 2007 Member. Fl'ennlylv.nl. A.IOCi.tlan Of Notaries !'-:) C':'::l ('~.:..) (;'.n o C) -; I -.J -:;::. ~ r- GNANA M. CHINNIAH a/kIa GNANACHANDRA M. CHINNIAH, Plaintiff, v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 2005 - 5045 CIVIL TERM KENNETH L. BRETZ a/kIa KENNETH : CIVIL ACTION L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, Defendants. AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA: : S5, COUNTY OF CUMBERLAND I, d/fN.;J ~4v/~ ,being sworn according to law, deposes and says that I am a competent adult over 18 years of age; that I served a copy of the Rule to Show Ca!y\e and aCCO~nYing Petition for Preliminary Injunction upon the Defendant, / /-9.R'1' 4v;./ 'E::T2 , by personally handi.!lg himlher a~ true and correct copy thereof and informing himlher of its contents at ~D C-'l'/.e>(.::fI.J~ d,ele;;f on <:!'JCrCJt3€e '?, at '9:00 o'cIock~m. Sworn to and subscribed Before me this '1y.?, Day of Quo b.v-c.. .... 2005 N~~ttJ<f COMMONWEALTH OF PENNSYLVANIA _Seal Martha L Noel, NoIary PutlIie CaIlisle Boro, Clrnberland Coonty My CoomIssIon ExpIres Sept. 18, 2007 Member, Pennsytvaniil AnodatlOn Of Notaries o C,":" -!:,- "-> L::::.") c:::> <~ C) C') -I , -.J o -q -...., ~f;: "-'-;'1 "-'-, ".. v -':.:.: -'q , ;~ ("'j :.~ rn u ~I ...,. ciJ -< N GNANA M. CHINNIAH a/kIa GNANACHANDRA M. CHINNIAH, Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 2005 - 5045 CIVIL TERM KENNETH L. BRETZ a/kIa KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, : CIVIL ACTION Defendants. AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA: : SS. COUNTY OF CUMBERLAND I, ~? ~/.s.nve , being sworn according to law, deposes and says that I am a competent adult over 18 years of age; that I served a copy of the Rule to Show Cause and accompanying Petition for Preliminary Injunction upon the Defendant, /(.bVltlem ,c'. /:1~e72- , by personally ~din~her a true and correct copy thereof and informing himlher of its contents at . )(0 71&e V/v.J ,tJe;vz. on t'"Y7Z:!A~ ? ,at fi!, ':5S' o'clock A-m, ~ / Notat' Publ'c MMONWEALTH OF PENNSYLVANIA _Seal MaI1I1a L Noel, Nolary PublIc Cattisle Boro, ClITtleI1and Counly My ~ Expires Sept 18, 2007 Member, Pennsylvania Association Of Notaries r-> = C"~;:\ '-" o C') -, I C) -r1 ::::I _J -:J r;? e"- GNANA M. CHINNIAH a/k/a GNANACHANDRA M. CHINNIAH,: Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-5045 CIVIL TERM KENNETH L. BRETZ a/k/a KENNETH L. BRETZ, SR., and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, Defendants CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 10th day of October, 2005, after hearing, Plaintiff/Petitioner is given until October 17, 2005, to file a brief in support of his position for a Temporary Restraining Order. The Defendant/Respondents are given until October 24, 2005, to file a responsive brief. ~UglaS G. Miller, For the Plaintiff Esquire srs ~mes G. Morgan, Jr., Esquire ~For the Defendants ;;~ OS :11 I ' I ~'O r"07 I .'>.j\ JU v NdV1C,\D iJj:d 3Hl :JO J~;L!~~!(}--{L.1l1:1 GNANA M. CHINNIAH, a/k/a GNANACHANDRA M. CHINNIAH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 5045 - CIVIL TERM vs. KENNETH L BRETZ a/kla KENNETH L. BRETZ, SR., and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, CIVIL ACTION Defendants NOTICE TO PLEAD TO: GNANA M. CHINNIAH, a/kla GNANACHANDRA M, CHINNIAH c/o Douglas G. Miller, Esquire IRWIN & McKNIGHT West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 You are hereby notified to file a written response to the e lo~ed New Matter within against you. twenty (20) days from service hereof or a default judgment may be Dated: October 18, 2005 91944 GNANA M. CHINNIAH, a/k/a GNANACHANDRA M. CHINNIAH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 5045 - CIVIL TERM vs. KENNETH L BRETZ a/k/a KENNETH L. BRETZ, SR., and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, CIVIL ACTION Defendants DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW COMES, Defendant, Kenneth L. Brentz, Sr., and Gail Ilene Bretz, by and through their attorneys, Tucker Arensberg, P,C., and answers Plaintiff's Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted in part, denied in part. It is admitted that both parcels have frontage on Creekside Drive. It is speCifically denied that Creekside Drive is a state road. To the contrary, Creekside Drive is a township road. 18. Admitted. 19. Admitted. 20. Denied. It is specifically denied that there is no access for ingress and egress available to the Plaintiff other than across Defendant's property. Further, the Plaintiff has the right to construct a driveway onto Creekside Drive. There is no right to utilize Defendant's property nor has there ever been a legal right or easement for the same, nor does the deed entered as Exhibit "A", specifically grant an easement or right of way to the Plaintiff. 21. Denied. The Plaintiff knew prior to purchase that there was no right of way or easement. The Plaintiff's contacted Defendant as well as Defendant's counsel and were advised that no easement or right of way would be granted as a matter of right. There has always been a means of access to Plaintiff's property directly from Creekside Drive. 22. Denied. Plaintiff may have temporarily used Defendant's property to access his property but it is specifically denied he did so with any vested legal right. Defendants' permitted Plaintiff to do so for a limited time and said permission has been withdrawn. 23. Denied, Defendants are without knowledge or information sufficient to admit or deny said allegations and as such the same are denied. Strict proof thereof is demanded. 24. Denied. It is denied that the No Trespassing signs and physical location of vehicles parked on Defendants' property were not placed until such time. Defendants stored their boats on their property at the same place annually, - 2- 25. Denied. Defendants advised the Plaintiff that they were placing a boat for winter storage and that Plaintiff would need to remove his vehicles. The Plaintiff should have known that he had other means of ingress and egress to the property at the time he brought it. Plaintiff was aware at the time he purchased the property he had no easement. No easement across Defendants' property ever existed for Plaintiff's property. 26. Denied. Defendants are without knowledge or information sufficient to admit or deny said allegations and as such the same are denied. Strict proof thereof is demanded. 27. Denied. At the time of purchase in 2005, Plaintiff knew that they would need to construct their own driveway and that there was no permission which would be given to continue to use the Defendant's property as a means of access to their property. They knew at the time of purchase that there was no easement or right of way granted in prior title and that there was no adverse possession as the parties were related who owned the property prior to their purchase. They further knew that there was no right of way and requested the same be given through their counsel to both the Defendants and counsel for the Defendants prior to purchase. The driveway was constructed sometime after 1997. 28. Denied. Plaintiff knew, prior to purchase, that there as no right of access over the private property of the Defendants and further knew that he had the right to construct his own driveway access. Defendants took no action that harmed the Plaintiff, 29. No answer is necessary. 30. Admitted in part, denied in part. It is admitted that the property was subdivided. It is denied the subdivision was for the stated purpose. Further, a house was already constructed on Lot 1. - 3 - 31. Denied. There was never in deed or in writing an easement or right-of-way granted and it was always the position of the parties that at some point, a separate driveway could be built. Further, there is direct access to Lot 1 from Creekside Drive. 32. Denied. The Plaintiff knew at the time of purchase that there was no right of way or easement and that they would need to build their own driveway directly from Creekside Drive. 33. Denied. It is specifically denied that although usage of the means of ingress and egress was allowed by a related party, that the Plaintiff had any right to expect the Defendants in this matter to allow continued usage to their detriment. To the contrary, the Plaintiff knew prior to purchase that there was not to be a continued right of access over their property. Plaintiff has the ability to construct his own driveway and separate access to his property. They are not by implication given a right of easement or adverse party. The driveway in question was not constructed until sometime after 1997. 34. Denied. There is an asphalt pad in the rear of the property and it is used for storage. 35. Denied. It is specifically denied that there should be any right of the Plaintiff to continue to use the rear of Defendant's property and specifically, any parking area on their property by the Plaintiff, Plaintiff, in fact, knew that there would be no continued usage of the Defendant's property at the time he bought the property. Plaintiff can directly access Creekside Drive from his property, 36. Denied. It is specifically denied that the Defendants' property is the sole means of access available to the parcel purchased by the Plaintiff. 37. Denied. Defendants knew the subdivision and knew that the owner, at the time of purchase, was the brother and that there was available to that parcel, should it ever be sold, -4- sufficient access for ingress and egress directly from Creekside Drive and that no right of way was necessary. 38, Denied. To the contrary, Plaintiff knew Defendants did not intend to convey an easement to him, prior to his purchase of property, Further, Plaintiff has direct access to Creekside Drive. 39. Admitted. 40. Denied. The Defendants knew prior to purchase there was no easement or right- of-way and further Plaintiff advised Defendants that he would be putting in driveway from Creekside Drive on his own property. WHEREFORE, Defendant respectfully requests this Honorable Court to deny the request of the Plaintiff. Alternatively, permit the Plaintiff to build his own driveway on his own property within a reasonable period of time and enjoin the Plaintiff from further usage of the property of the Defendants which property is not subject to any rights of the Plaintiff and dismiss this cause of action. COUNT II 41. No answer is necessary. 42, Admitted. 43. Denied. At time of subdivision, there was a house on the lot. 44. Denied. It is denied that the driveway and parking area crossing the Defendants' parcel were necessary for access, and their son did not have such access until 1997. Therefore, without the need for additional expenditures for a separate driveway, the son was allowed to use the same. 45. Denied. It is denied that it is necessary for access to be used for Plaintiffs parcel. To the contrary, the Plaintiff has the right to build their own driveway with direct access to - 5 - Creekside Drive. There is no easement of necessity in this malter, as the accommodation of a son by a mother and now by a brother prior to the purchase by the Plaintiff did not change the rights of the parties and there is no easement by necessity in this matter. 46. Denied. There is sufficient room to build a driveway directly to Creekside Drive. Plaintiff knew, at the time of purchase, that a driveway would have to be constructed and discussions of the same was made with Defendants prior to purchase. 47. Admitted. Further, every home on Creekside Drive, except those of the Plaintiff, have a driveway to Creekside Drive. 48. Denied. It is specifically denied a person can look to the necessity when they purchase knowing in fact they had no right of way or easement to the property. To the contrary, the Plaintiffs knew or should have known at the time of purchase that a driveway could be constructed on their property directly to Creekside Drive. WHEREFORE, Defendants requests the court to deny the Petition of the Plaintiff and request that reasonable counsel fees be paid to the Defendants to defend what is clear at the time of purchase by the Plaintiff, that Plaintiff had no rights to access, easement or right of way. COUNT III 49, No answer is necessary. 50. Denied. It is denied that the passage of time or the usage thereof has anything to do with this matter as the usage of the property while it was owned by the family was not adverse. 51. Denied. The son and daughter-in-law of the Defendant and the brother of the other Defendants certainly had no adverse use for the property during his ownership. As an accommodation, the son was allowed to only use access to property by foot until rear used after 1997. The mere license is not an easement or right-of-way and does not inure to the benefit of the Plaintiff. - 6- 52. Denied. It is specifically denied that the Defendant at any time had an easement or right of way for the purpose of ingress, egress or regress nor that it has a right to tack on to the ownership of the prior owner. The Plaintiff, prior to purchase knew, in fact, that there was no adversity and that there was no prescriptive right. 53. Denied. It is specifically denied that the son of the owner had any access until after 1997. To the contrary, it was a mere license granted by parent to son and brother to brother, and in no way can be deemed available to the Plaintiff in this action. 54. Denied. There is no adverse action in the ownership of the brother or the son, and further there is no right of the Plaintiff in this case to utilize the property of the Defendants adverse to their interest as he has direct access to Creekside Drive. 55. Denied as stated. The Plaintiff has utilized their land in placing "no trespassing" signs as well as utilizing their own property for storage of boats in a manner consistent with its usage since the property has been owned by current owners, 56. Denied. Defendants asked Plaintiff to move vehicles and did tell authorities, 57. Admitted in part and in denied in part. It is admitted that Defendant, Kenneth L. Bretz contacted East Pennsboro Township to advise them that the Plaintiff had no right to continue to utilize his premises and that it was the intention of the Defendants to place their boat for storage. 58. Denied. The Plaintiff had no reasonable right to expect or be able to use the land of the Defendants for its own purposes, as it had no right by deed, by agreement, by subdivision, by prescriptive, or rights of necessity to utilize the same. 59. Denied. It is denied that the Plaintiff ever had the right to utilize the driveway of the Defendants or the parking area of the Defendants at the time of his purchase in 2005. To the contrary, the Plaintiff knew, prior to purchase, that there was no right of easement, right of way or -7 - license. Plaintiff was personally advised by the Defendants and their counsel that he had no rights on their property. WHEREFORE, Defendants respectfully requests this Honorable Court to deny requests of Plaintiff and to award reasonable counsel fees to the Defendants. NEW MATTER 60. Numbers 1 through 59 are incorporated herein as if fully set forth. 61. Plaintiff in this matter has access and frontage on Creekside Drive. 62. Plaintiff in this matter has access on their own property, should they expend the monies necessary for a driveway on Creekside Drive. 63. Plaintiff has failed to state a cause of action. 64. The Plaintiff should be denied access to the courts by estoppel in that the Plaintiff knew prior to purchase of the property that there was not an easement or right-of-way to utilize the property of the Defendants. WHEREFORE, Defendants respectfully request the Court to dismiss this action. Jame G. Mor , Jr., Esquire I.D. No.: 068 111N, Front Street Harrisburg, PA 17101 PtI'one: (717) 234-4121 Fax: (717) 232-6802 Attorney for Defendants Dated: October 'u , 2005 - 8- VERIFICATION We, Kenneth L. Bretz, alkla Kenneth L. Bretz, Sr., Gail Ilene Bretz, and Mary Ann Bretz, the undersigned, do hereby certify that we are the Defendants in the foregoing action and that the statements made in the foregoing Answer are true and correct to the best of our knowledge, information and belief. We understand that any false statements made to this verification are subject to the penalties of 18 Pa. C.SA ~904, relating to unsworn falsification to authorities. ;/~ .Jj~ QQo ",0 f2. 4- Gail Ilene Bretz - l~cJ ?!l ~ t2rvn Mary a;)~ Bretz fk1: -.1' October JJ( ,2005 CERTIFICATE OF SERVICE I, James G. Morgan, Jr., Esquire of the law firm of Tucker Arensberg, P.C. do hereby certify that 1 did serve a true and correct copy of the foregoing document by United States First \:\, \~ ' Class Mail, postage pre-paid this \ day of October, 2005 upon: Douglas G. Miller, Esquire 60 West Pomfret Street Carlisle, PA 17013 ", \ .~ c' '-" '...., 81944 ., ---< (, n ~-, . '-.::J (.: o ~n ..-4 :-r: ~1 SHERIFF'S RETURN - REGULAR CASE NO: 2005-05045 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CHINNIAH GNANA M AKA GNANACHAN VS BRETZ KENNETH L ET AL RONALD HOOVER Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BRETZ KENNETH L AKA KENNETH L BRETZ SR the DEFENDANT , at 1721:00 HOURS, on the 3rd day of October 2005 at 26 RIVERVIEW DRIVE ENOLA, PA 17025 by handing to KENNETH L BRETZ 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 Affidavit Surcharge So Answers: 18.00 14.40 .37 10,00 .00 42.77 ~,,~'. ,r'v ".-7 " , R, Thomas Kline 10/04/2005 DOUGLAS MILLER me this ;1.00;;, day of By: ~~~ Deputy Sheriff Sworn and Subscribed to before (tJ, ~llkE~ A,D. f- pr:;~ SHERIFF'S RETURN - REGULAR CASE NO: 2005-05045 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CHINNIAH GNANA M AKA GNANACHAN VS BRETZ KENNETH L ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BRETZ GAIL ILENE the DEFENDANT , at 1721:00 HOURS, on the 3rd day of October 2005 at 26 RIVERVIEW DRIVE ENOLA, PA 17025 by handing to KENNETH L BRETZ 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 Affidavit Surcharge 6.00 .00 .00 10,00 .00 16,00 So Answers: _./? ..#' --.,.,,~_. .:','.- ., ~,--<1? " ......~,~^i' -"" R. Thomas Kline 10/04/2005 DOULGAS MILLER Sworn and Subscribed to before me this 20 e day of 0a.-L ~ttdQ" ~A.D. ~~~l By: ~ 2:.""V Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2005-05045 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CHINNIAH GNANA M AKA GNANACHAN VS BRETZ KENNETH L ET AL VALERIE WEARY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BRETZ MARY ANN the DEFENDANT , at 1730:00 HOURS, on the 30th day of September, 2005 at 40 CREEKSIDE DRIVE ENOLA, PA 17025 by handing to MARY ANN BRETZ a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 14.40 .00 10.00 .00 30.40 ~'>. ~? R. Thomas Kline me this .... .,l;J day of 10/04/2005 DOUGLAS MILLER / By: ~L ~ Deputy eriff Sworn and Subscribed to before A.D. GNANA M. CHINNIAH a1k1aGNANACHANDRA M, CHINNIAH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH 1. BRETZ : NO. 2005 - 5045 CIVIL TERM a/k/a KENNETH 1. BRETZ, : SR., & GAIL ILENE BRETZ: Husband and wife, and MARY ANN BRETZ ORDER OF COURT AND NOW, this 31 ST day of OCTOBER, 2005, after hearing on the matter and having reviewed the briefs filed by the parties, we are not persuaded that the Plaintiff s evidence has established a clear right to relief. Therefore, Plaintiffs request for a Preliminary Injunction is DENIED. // .'\ /, the Court, ) "--- Edward E. Guido,], ~~(p \,Q \, ~ / \j\N\/,y:.),.sNr~.id I ""n\~'tr.,.>.,.,... '~'lIMn'"' .(\,.L.11I '_ ,~...',"-.~~~:~~ h.) 22 :6 Wit 10- }'oN SOOl 1 ~.!(.J I ()' \~n~.1 t (>"-'~d :JHl' '0 I\WVl. I ."', ).~U'-'..., :l 3JH;tO.031i:l GNANA M. CHINNIAH aJkJa GNANACHANDRA M. CHINNIAH, Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 2005 - 5045 CIVIL TERM KENNETH L. BRETZ aJkJa KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, : CIVIL ACTION Defendants. PLAINTIFF'S ANSWER TO DEFENDANTS' NEW MATTER AND NOW this 22ND day of November, 2005, comes the Plaintiff, Gnana M, Chinniah, by and through his attorneys, Irwin & McKnight, and respectfully files this Answer to the New Matter of Defendants, and in support thereof avers as follows: 60, The averments contained in the Plaintiffs Complaint in this matter are hereby incorporated by reference as if fully set forth below, 61. The averments contained in paragraph sixty-one (61) of the New Matter of Defendants are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiffs property has frontage along Creekside Drive, but because of the steep grade of the roadway and front of Plaintiff's property, as well as the presence of a guardrail and utility pole, Plaintiff does not have access to his property, 62. The averments contained in paragraph sixty-two (62) of the New Matter of Defendants are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff has attempted to obtain a driveway on his property to access Creekside Drive, but was denied permission for such a driveway from the local municipality. A true and correct copy of the denial letter from East Pennsboro Township and sketch submitted by Plaintiff to the township for such a driveway are attached hereto and incorporated herein as Exhibit "A." 63. The averments contained in paragraph sixty-three (63) of the New Matter of Defendants are conclusions of law to which no response is required, To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 64. The averments contained in paragraph sixty-four (64) of the New Matter of Defendants are conclusions of law to which no response is required, To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, estoppel does not apply to bar the present action by Plaintiff. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant the relief requested in his Complaint. Respectfully Submitted, IRWIN & McKNIGHT Dated: November 23, 2005 By: Dougla . Miller, Esquire Supreme Court ill No, 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff 2 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action, I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief, I understand that false statements herein made are subject to the penalties of 18 Pa.C.S,A. Section 4904, relating to unsworn falsification to authorities. C~?k~.....iZI", !Iv,' e'k?, e::' GNANACHANDRA M. CHINNIAH Date: November 23. 2005 EXHIBIT "A" JOSEPH H. BIINNARIGO Twp. Engineer p.W. Dir, JEFFREY SHl LTZ Bldg. lnspecto & Code Enforcement Officer ROBERT GOl LD Code Enforcer lent Officer JOHN B. OWEN Dir. of Housing & Community Development/Zoning Officer KAREN DUNKLE Health & Code Enforcement Officer JOYCE STOM Department Secretary EAST PENNSBORO TOWNSHIP November 8, 2005 MR GNANA CHINNIAH 506 ERFORD RD CAMPHILLPA 17011 Re: Request for driveway at 36 Creekside Drive, Eno1a ) )ear Mr.Chinniah: During our meeting in June, 2005, we discussed your proposal to construct a l!.riveway from Creekside Drive onto your property at 36 Creekside Drive. We mderstood that the previous owner had an agreement with the property owner at 40 (:reekside Drive to cross over that property to access the property at number 36, and that 1 he agreement was not made available to you as th.e new owner. The sketch plan which you submitted, showing the proposed driveway, and ~upporting photographs, shows guide rail and a relocated utility pole which would restrict 1 he clear sight triangle, Site visits have been made, and due to the topography of your property, and the proximity to Creekside Drive cartway, it has been determined that the }'lude rail is a safety feature that cannot be completely removed. Therefore, your request to construct a driveway onto your property at 36 (~reekside Drive, Enola, as presented in your sketch plan and supporting photographs must be denied. If you have any questions, please contact me at 909-5614. Sincerely, ~Nl ';:';() ose H. Bonarrigo, P,E. WDship Engineer JHB/jas 98 South Enola Drive. Enola, PA 17025-2796 . (717] 732-0711 ....- ct '. .... -, t .\ , -r+ - , "l - '~ .... ~~1 h 1\ ~?:> -I-' \ "'i ~ -:r, J~ ~. \"""', ul.,\:;:;~, \~ ;:.-, \ . \ \ \ ~- ~<:J t.' (. r;;+ ,) ,'~ Ii N "~ -, ~ .It' \ ..y-4/(, - \ : \_\1\\ h .~ '~,,}~ ~ ~ ~ ~~ . ~.' ...., tfl .c:f It',~"'} ,0 0 ~ .. uJ <t c:P\ ,<$ ~- ~ -=> '\ - '\' :% / , . ' ' ' - / ':0... ;' 110 ,. \..&__~ - &.5 bii----~-\;;l/ _ ~O '", tS;' JJ~'- ~ ,.- c"\ \ 1 'r ) " ..I'll. 1 " " / .,. 0 \. - - ----' - - - - - -- ~' -- :ot~. \ \ ..i\. :2!: ' ,-:-. "J Cl u.1 I \ : "',..... \ . \ : '. ~. ~ 1 \. '.: - .'!.' ~ u) \ - ~ \ \ -,fu \< a \ .~I \ ~\ t) I ,'11', 0'1' \ 1 1 ' \ .~\ 0-::'::1 d '" -' \ "" ;...... \ \ \ \ , \~ ,\ " c-: ," .\ ' ({\ ~\' ~ 00': ~,\ , ~ q. .; ~ C'" .\;. . . '/ \ ~ ~ -{., :4- " ~ ~ * I' ' ~ , '. <-\;- I ~ : t 1 jV - ------- " .)'. ,i :.:..;. I.~ :~ 'I ., 4~~I'- ... ' ' ;; ,,~ )\;.J .1- . -~ ~ l~:~ rJ -...:.: 1':- "J , f' - -- .--- i',~,~",,::'~: - ~~'i \ \ \ \ \ \ \ \ \ - - ,IV"', \ ",.. l \ ~ \",,0\\. \ 6'_\- " \ -0. "'\ \ ~- , \ , .... l' \r:- ' \~ ~ V. ~ \~. " ~' .-.;;;-:.... 1.,__ ~.;;. : T'!""'\~'::':':":'~ f;i~mm!!::l' =.:-~." ~ " I , -,.;". CERTIFICATE OF SERVICE I, Douglas G, Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: James G. Morgan, Jr., Esquire Tucker Arensburg 111 North Front Street P,O. Box 889 Harrisburg, P A 17108 Date: November 23, 2005 IRWIN & McKNIGHT ~~. IhAIU, Douglas . Mil(er, ESquire Supreme Court J.D. No, 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 c .--' .,' ',-j !"-) C " f'.,) cr; (;' PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewrilten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) for JURY trial at the next term of civil court. x for trial without a jury. hnn~~_.__#._____..._"______h.______._____..____.__~__________n.__U__.n__________n_____.__.n_______.d___._.__n..___nh_nn_nn________..________________. CAPTION OF CASE (entire caption must be stated in full) (check one) Assumpsit GNANA M. CHINNIAH a(k(a GNANACHANDRA M. CHINNIAH, Trespass Trespass (Motor Vehicle) (Plaintiff) (other) vs. KENNETH L. BRETZ a(k(a KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, The trial list will be called on and Trials commence on (Defendant) Pretrials will be held on (Briefs are dUE~ 5 days before pretrials.) vs. (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214,1.) No. 2005-5045 Civil 19__ Indicate the attorney who will try case for the party who files this praecip-e: Douglas G. Miller. Esquire Indicate trial counsel for other parties if known: James G.~Morgan, Esquire This case is ready for trial. Signed: ~~, ./k-L Print Name: -..llo.IIg1 a" .G..--..l!iller Date: 12(30(05 ~ Attorney for: -1'.laintiff~ ___ "~~2 '" ~ (:;:;,) G.'" <:::} rn ,) w co o -n ::::! l~n:D j'--- :r:F'".: c"f <C" ( -;~;S )\ll ;~:t ~lJ .< ~~ N N '. GNANA M. CHINNIAH A/\K/A GNANACHANDRA M. CHIN IAH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH L. BRETZ A/K A KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, hu band And wife, And MARY A N BRETZ NO. 2005 - 5045 CIVIL TERM ORDER OF COURT AND NOW, this 1 ru day of FEBRUARY, 2006, a pretrial conference in the ab ve-captioned matter is SCHEDULED for ((l~J JoDC, /: D D +l'" ' in Chambers of the undersigned judge, C mberland County Courthouse, Carlisle, Pennsylvania. Pretr al memorandum shall be submitted by counsel in accordance with C C.R,P. 212-4, at least five (5) days prior to the pretrial conf rence. TRIAL in the ma ter will be scheduled at the pretrial conference. Counsel re directed to have their calendars available. '\ . / ) ~y~t.tl:. ur / ---'^ - ,/ Edward E. Guido, J. Douglas G. Miller, Esquire James G. Morgan, Esquire 4~~;1A<;h4 ..} ./'I.(J (:. COURT ADMINISTRATOR. (\ -r~ r,~ ~ ~'- f t'_ , .,j n3J .c, ::;",,) ; - ~ OFFICE OF THE COURT ADMINISTRATOR CUMBERLAND COUNTY COURT OF COMMON PLEAS Taryn N. Dixon Court AdmInistrator 1 C urthouse Square' Carlisle, PA 17013 Melissa H. Calvanelli Assistant Court Administrator Phone (717) 240-6200 (717) 697-0371 (717) 532-7286 (717) 240-6460 FAX courtadmjn@ccpa.net MEMORANDUM TO: FROM: DATE: INRE: The Ron rable Edward E. Guido Melissa . Calvanelli, Assistant Court Administrator Tuesday, January 03,2006 05-5045 Civil Action - Law Fnana M. Chinni Bretz aJkIa Kenne alkla Gnanachandra M. Chinniah v. Kenneth L. L. Bretz, Sf. and Gail Ilene Brets, H/W, and Mary Ann Bretz The above case is assign d to you for a non-jury trial. Please provide me with copies of your scheduling orders d final disposition date so that I can monitor the case for statistical purposes, Attachment I -~ ! ..,., .~-- "' PRAEC PE FOR LISTING CASE FOR TRIAL (Must b typewritten and submitted in duplicate) 5 Please list the foil' wing case: ./4 N 0 J iUUb Mi TO THE PROTHONOTARY OF qUMBERLAND COUNTY (Check one) for JURY trial at the next term of civil court. x for trial without a jury. . ~___~~_______.________.______._______"_______________h_________.___._________________________.___n._____n____.__.__.___..___.______.________u.________.._u.____._. CAPTION OF CASE (entire caption must be stated 'n full) (check one) Assumpsit GNANA M. CHINNIAH a/k/a GNANACHANDRA M. CHINNIAH, .. --, ....., <=:J 0 ,-;;:.--. -n CJ' C1 -< fTI :J:'Tj n m,..... w -'liTl .,,? 0 (.~~C. -'r; ...,,, -q -'<- (OS m N ...;: Trespass Trespass (Motor Vlihicle) . '. (PI inliff) (otheI): vs, KENNETH L. BRETZ a/k/a K.NNETH L. BRETZ, SR. and GAIL I ENE BRETZ, husband and wife, and MARY ANN BRETZ, The trial list will be called on and Trials commence on (0 fendant) Pretrials will be held on (Briefs are due 5 days before pretrials.) vs. (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No,2005-5045 Civil 19__ Indicate the attorney wh will try case for the party who files this praecipe: G. Miller Es ire Indicate trial counsel for ther parties if known: James G.~Mor an, Es ui e This case is ready for trial. Signed: ~~~. !lfAi!;.,. Print Name: DOIIglac ~llAr Date: 12/30/05 > Attorney for: ...L-LaintifL __. I ~ . . GNANA M. CHINNIAH a/k/a GNANACHANDRA M. CHINNIAH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2005-5045 CIVIL TERM KENNETH L. BRETZ a/k/a KENNETH L. BRETZ, SR., and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, Defendants CIVIL ACTION - LI,W IN RE: PRETRIAL CONFERENCE A pretrial conference was held Thursday, March 2, 2006, before the Honorable Edward E, Guido, Judge. Present for the Plaintiff was Douglas G. Miller, Esquire, and present for the Defendants was James G. Morgan, Jr., Esquire. This is a matter involving a property dispute. The parties estimate it will take one day to try. The Defendants have indicated that the following two witnesses should be added to their witness list: Art Kreitzer and Harold Arndt. Trial in this matter will be held before this Court on Monday, May 1, 2006, at 8:30 a.m. Both parties are directed to check the availability of their witnesses. No request for a continuance, absent an emergency, will be granted unless it is filed within two weeks of today's date. The parties are directed to premark and exchange all exhibits by March 15, 2006, Any objections to the exhibits, other than relevance, shall be made in the form of a motion in limine, All motions in limine, with supportinq authority, should be filed by April 3, 2006. All responses, with supporting authority, shall be filed by April 26, 2006. The parties have requested that the transcript of the preliminary injunction hearing be transcribed. The parties , ~ :~ have further agreed that they will share the costs of transcription and that the transcriipt will be an exhibit in the upcoming trial. This will alleviate the need to rehash the testimony elicited at the preliminary injunction hearing. J. Douglas G. Miller, Esquire Attorney for Plaintiff James G, Morgan, Jr., Esquire Attorney for Defendants srs r.' .~ ," A GNANA M, CHINNIAH, a/kJa GNANACHANDRA M. CHINNIAH, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO, 2005 - 5045 - CIVIL TERM vs, KENNETH L BRETZ alkJa KENNETH L. BRETZ, SR., and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, CIVIL ACTION Defendants DEFENDANTS' MOTION IN LIMINE AND NOW, comes the Defendants, Kenneth and Gail Bretz, by and through their counsel, Tucker Arensberg, P.C" and moves this Honorable Court to exclude certain evidence and in support thereof alleges as follows: 1, The above-captioned matter involves a property dispute, A hearing on Plaintiffs' Request for Preliminary Injunctive Relief was held on October 10, 2005 before the Honorable Edward E, Guido. The Plaintiffs' request for a Preliminary Injunction was denied by Order dated October 31, 2005, 2, The above-captioned matter was listed for a non-jury trial by the Plaintiffs on December 30, 2005. Counsel for Plaintiffs certified at that time that the case was ready for trial. 3, A Pretrial Conference in the above-captioned matter was held before the Honorable Edward E, Guido on March 2, 2006, Counsel for the parties attended that Conference and each of the parties submitted a Pre-Trial Conference Memorandum, " 4, Plaintiffs' Pre-Trial Memorandum listed five (5) potential witnesses, They were Vance W. Bretz, Jr., Michele King, Mary Bretz, Gnana Chinniah, and Joseph H, Bonarrigo, P,E, (East Pennsboro Township Engineer), Plaintiff did not list any other potential expert, nor did they specifically list Michael C, D'Angelo, 5. In accordance with Judge Guido's Pre-Trial Conference Order, the parties were to pre-mark and exchange exhibits by March 15,2006. The parties exchanged exhibits as ordered in a timely fashion, 6, In the March 15, 2006, letter from Plaintiffs' counsel to Defendants' counsel, Plaintiffs' counsel indicated that he would be adding an additional witness to the list. The additional witness was Michael C, D'Angelo, a professional land surveyor. Plaintiffs' counsel indicated Mr, D'Angelo would be testifying "regarding the boundary location between the properties and the problems in constructinq or placinq a new driveway onto Creekside Drive in accordance with the township requirements," (emphasis added) 7. At no time prior to March 15,2006, did Plaintiffs' counsel notify the Defendant or the Court of the intention to call said expert witness, On March 22, 2006, Plaintiffs' counsel advised Judge Guido of the intention to call Mr, D'Angelo and by copy of that letter provided Mr. D'Angelo's curriculum vitae and report to Defendants' counsel. 8, Plaintiffs' counsel contends that Mr. D'Angelo will be replacing the anticipated testimony by Joseph Bonarrigo, That is not an accurate representation since in the Plaintiffs' Pre-Trial Memorandum, Mr. Bonarrigo's testimony was limited to "the request for and denial of approval of the construction of a new driveway onto -2- Plaintiffs' property", Mr. D'Angelo will clearly attempt to testify to items other than construction request and in particular, he would not be able to testify to what Mr. Bonarrigo would as he has no first hand knowledge of the application and its rejection, 9. Plaintiff is adding a new expert witness after the Pre-Trial Conference Order and after the matter was listed and certified as ready for trial. At this time, Defendants are prejudiced by the late identification of such a witness and do not have sufficient time to obtain their own expert, if warranted, 10. Additionally, Mr, D'Angelo's qualifications do not provide a basis to support his professional opinions as outlined in his March 16, 2006, letter to the Plaintiff, Mr. D'Angelo's qualifications are only with regard to surveying property and he does not have the expertise to render professional engineering opinion regarding compliance with the township rules and regulations. WHEREFORE, Defendants respectfully move this Honorable Court to grant this Motion In Limine to preclude the Plaintiff from presenting the testimony of Michael C. D'Angelo at the trial of this matter as: 1, Plaintiff failed to timely identify this witness and submit his proposed testimony and qualifications until after the matter was listed for trial and after the Pre-Trial Conference with Judge Guido, and; 2, The proposed testimony that has been offered through the report of Mr. D'Angelo is clearly beyond the professional - 3 - expertise of Mr. D'Angelo's as a professional surveyor, as confirmed by his curriculum vitae. Respectfully submitted, TUCKER ARENSBERG, P.C. rz2~1:tf;: PA I.D, No, 06897 Dennis R. Sheaffer PA I.D, No. 39182 111 North Front Street P,O. Box 889 Harrisburg, PA 17108-0889 Telephone: 717-234-4121 Facsimile: 717-232-6802 Attorneys for Defendants 85996.1 (016744 -125381) - 4- .... CERTIFICATE OF SERVICE AND NOW, this ~(oI day of April, 2006, I, Dawn T, Heilman, Secretary to James G, Morgan, Jr., Esquire, for the law firm of Tucker Arensberg, P,C" attorneys for Defendants, hereby certify that I have this day served the foregoing Defendants' Motion In Limine, by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Douglas G. Miller, Esquire Irwin & McKnight West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 [JeUJJYI T ~ (~J l ((-"7 Dawn T, Heilman - 5- C r"'.J .' c- D , -n ::~- .-{ _n., .1":: ....,.J " I .,-, W C,) U1 :-n UJ '"' GNANA M. CHINNIAH a!k/a GNANACHANDRA M. CHINNIAH, Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 2005 - 5045 CIVIL TERM KENNETH L. BRETZ a!k/a KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, : CIVIL ACTION Defendants. ANSWER TO DEFENDANTS' MOTION IN LIMINE AND NOW this 26th day of April, 2006, comes the Plaintiff, Gnana M. Chinniah a1k1a Gnanachandra M, Chinniah, by and through his attorneys, Irwin & McKnight, and respectfully files this Answer the Defendants' Motion In Limine, and in support thereof aver as follows: 1. The averments of fact in paragraph one (I) of the Defendants' Motion in Limine is admitted, 2, The averments of fact contained in paragraph two (2) are admitted, 3. The averments of fact contained in paragraph three (3) are admitted, 4, The averments of fact contained in paragraph four (4) are admitted. By way of further answer, at the time of the Pre-Trial Conference in this matter, Defendants first notified the Court and Plaintiffs counsel that two additional witnesses were being added who were not included in Defendants' Pre-Trial Memorandum. As a courtesy, Plaintiffs legal counsel did not object to the late notice of two additional witnesses, Plaintiff seeks only to replace one expert witness with another. 5, The averments of fact contained in paragraph five (5) are admitted, 6, The averments contained in paragraph six (6) are denied as stated. It is admitted that notice of Michael C, D'Angelo's testimony was sent to Defendants' legal counsel by letter of March 15, 2006. It is specifically denied that Plaintiff seeks to add an additional witness, Plaintiff seeks only to replace one expert witness with another. 7, The averments of fact contained in paragraph seven (7) are admitted. By way of further answer, prior to the Pre-Trial Conference Defendants' legal counsel did not notify Plaintiffs' counselor the Court of the existence of two additional witnesses. 8, The averments of fact contained in paragraph eight (8) are specifically denied and strict proof thereof is demanded. Mr. Bonarrigo's report is a business record that has already been filed of record in this matter. In addition to Mr. Bonarrigo's report, Mr. D'Angelo also performed site measurements and field work to support the determination reached in Mr. Bonarrigo's letter and to explain why the township requirements for sight distance cannot be met for a new driveway, It is believed and therefore averred that Mr. Bonarrigo would have provided similar testimony. Plaintiff's proposed use of a private professional land surveyor eliminates the burden upon East Pennsboro Township to make one of its employees available for trial, and will permit the Court to hear more complete evidence because of the supporting site measurements and field work. 9, After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph nine (9) so they are therefore specifically denied and strict proof thereof is demanded, By way of further answer, Defendants have been provided with copies of both the curriculum vitae and report of Mr. 2 D' Angelo more than a month before trial. Defendants were also put on notice of the inability of the Plaintiff to obtain a private driveway when Plaintiff's Answer to New Matter was filed on November 23,2005, with Mr. Bonarrigo's letter attached. Defendants did not list any expert of their own to refute the long asserted position of Plaintiff that he is not able to construct a private driveway to gain access to his property, Plaintiff is not asserting a new legal position, and therefore Defendants will not be prejudiced. 10. The averments of fact contained in paragraph ten (10) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial, If Defendants' legal counsel does not believe that Mr. D'Angelo's qualifications are satisfactory, then he has every opportunity at trial to challenge those qualifications and cross-examine Mr. D' Angelo. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendants' Motion In Limine and permit Mr. D' Angelo to testify in place of Mr. Bonarrigo for the reasons identified above. Respectfully Submitted, IRWIN & McKNIGHT Dated: April 26, 2006 By: Doug as G Miller, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff, Gnanachandra M, Chinniah 3 . CERTIFICATE OF SERVICE I, Douglas G, Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Dennis R. Sheaffer, Esquire James G. Morgan, Jr., Esquire Tucker Arensberg, P.C. III North Front Street P.O, Box 889 Harrisburg, PA 17108-0889 (Attorneys for Defendants) Date: April 26, 2006 IRWIN & McKNIGHT Douglas Mi ler, sqUire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013.3222 (717) 249-2353 Attorney for Plaintiff ~" ) -.., - .. GNANA M. CHINNIAH a!kfa GNANACHANDRA M. CHINNIAH, Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. : No. 2005 - 5045 CIVIL TERM KENNETH L. BRETZ a!kfa KENNETH : CIVIL ACTION L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, Defendants. AFFIDAVIT OF SERVICE OF SUBPOENA COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF CUMBERLAND NOW, Douglas Miller, Esquire, being duly sworn according to law, does depose and state: I, That he is a competent adult and attorney for the Plaintiff in the captioned action, 2, That a subpoena was served upon Mary Bretz, on March 24, 2006 by certified mail, return receipt requested, addressed to Mary Bretz, 40 Creekside Drive, Enola, Pennsylvania 17025, with return receipt number 700208600000 1074 3257, 3. That the said receipt for certified mail is signed and attached hereto and made a part hereof. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa,C.S, Section 4904, relating to unsworn falsification to authorities, IRWIN & McKNIGHT Date: lI/) sjeX,p By: Douglas G. iller, Esquire Supreme Court Id # 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attorney for Plaintiff . ____4 .... SENDER (OMPLE TE {HI'J SECTION . Complete ~ems'l, 2, and 3. Also complete Item 4 if Restricted Delivery Is desired. f · Print your name and address on the reverse so that we can return the card to you. . Allaoli'this card to the back of the mailplece, or on Ihe front If space pennits, 1. Artfcle Addressed to: A. x Mary Bretz 40 Creekside Drive Enola, PA 17025 RESTRICTED D Agent D Addressee C. Date of Delivery :L<? Yes DNa 3. Service 1Y Qi Certified Meil D Express Mell o Registered di Retum Receipt for Merchandise D Insured Mell D C,O,D, ad Delivery? (Extm Fee) 13 Ves 2. Article Number rr","""''''''''__ PS Form 3811, February 2004 7002 08bO 0000 1074 3257 DomestIc Return Receipt o o o o Postage $ !f ~; ~:: dN))E:o F;:;=:- __ ''':'' IS? C1 ':r: T.J ~ ~ y.... "';: 1'\\"""" III ~;.~~ I,r~~l 0'" , !il Bj;g~', 'C1lrtltled"": 'Total Pt.Istage & Fees $ ru o o enfTo mG.i "(; I"- ...Mgx..Y....:Itr;.gt.?~....~......__..__...............~.3~.O.g S1'f:et. Apt. NDi " - O::e d49:J.t'ArlNeKside Drive ~~. go;; '(\ ~'~~~~i';pi""'17'02'5'....................m'......m..............._,..... PS FOrm 3800, Apnl 2002 See Reverse for In~tructlons 2 102595-02.M-1540 r ~,-~ -, --I ~ GNANA M. CHINNIAH aJkJa GNANACHANDRA M. CHINNIAH, Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 2005 - 5045 CIVIL TERM KENNETH L. BRETZ aJkJa KENNETH : CIVIL ACTION L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, Defendants. AFFIDAVIT OF SERVICE OF SUBPOENA COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF CUMBERLAND NOW, Douglas Miller, Esquire, being duly sworn according to law, does depose and state: I. That he is a competent adult and attorney for the Plaintiff in the captioned action. 2, That a subpoena was served upon Michelle King, on March 25, 2006 by certified mail, return receipt requested, addressed to Michelle King, 34 SheIWood Circle, East Pennsboro, Pennsylvania 17025, with return receipt number 700331100004 5770 6992, 3. That the said receipt for certified mail is signed and attached hereto and made a part hereof. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa,C.S. Section 4904, relating to unsworn falsification to authorities. IRWIN & McKNIGHT Date: L;/)8/CXo By: Douglas G 'lIer, Esquire Supreme ourt Id # 83776 60 West Pomfret Street Carlisle, P A 17013 (717) 249-2353 Attorney for Plaintiff . SENDER COf.1PLE TE THIS SECTION . 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 mailpisce, or on the front if space permits. 1. Article Addressed to: A. Signature Ii'..... t X.....,~ hlL" I I L'. Michelle King 34 Sherwood Circle East Pennsboro, PA 17025 B. ~eived ~ ( p~tel! Name) C. "~atr of 9' v~ry ['],1 nL.t= K', IV ., ;}::> Of., D. ]s delivery address different from item 1? 0 Yes 'fYES~EsfRICTED 0 No DELIVERY 3. Service Type DCeertlilod Mall o Registered o Insured M . estrlctod Delivery? (Extta Fee) o Express Mall iHi Return Receipt for Merchandise Qg Yes 2. Article Number (7lansfer rrom -1Bb8IJ PS Form 3811, February 2004 7003 3110 0004 5770 6992 Domestic Return Receipt 102595-02-M-1540 '" Total Postage & Fees $ ~UN"ED&" ......11< ;~ ""TI (:;; ere, ~J\ ::c" ~ l\':1 ~ S t,) '%1 ,,', 1 .~ ,j,' " 'En', -fj> '() :s: " .~ :;>0" ~):;o 0 =- ~ '- , z." '" o SsntTo ,-n v I 0( ~ ~~ibAp.!'.,lJ.L!U.Ug.....m..mn.mn..n;:'.....O': . - ,..vO., 00 gifo~~wood Circle. ~ " 10 ~ CiiY..s;ai6:ziP+:;.---...-.n----..-..-.--..-...-----~~.--O-"'~.-- ~ast P~nnsboro, PA 17025 PS Form 3800 June 2002 See Reverse for InstructtonS 2 . GNANA M. CHINNIAH a!k/a GNANACHANDRA M. CHINNIAH, Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 2005 - 5045 CIVIL TERM KENNETH L. BRETZ a!k/a KENNETH : CIVIL ACTION L. BRETZ, SR. and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, Defendants. AFFIDAVIT OF SERVICE OF SUBPOENA COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF CUMBERLAND NOW, Douglas Miller, Esquire, being duly sworn according to law, does depose and state: 1, That he is a competent adult and attorney for the Plaintiff in the captioned action, 2, That a subpoena was served upon Vance Bretz, Jr., on March 27, 2006 by certified mail, return receipt requested, addressed to Vance Bretz, Jr., 403 Mountain Road, Summerdale, Pennsylvania 17025, with return receipt number 7002 0860 0000 1074 3240, 3, That the said receipt for certified mail is signed and attached hereto and made a part hereof. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa,C,S, Section 4904, relating to unsworn falsification to authorities. IRWIN & McKNIGHT Date: LI/JZ/04:> By: Douglas ' Miller, Esquire Supreme Court Id # 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249.2353 Attorney for Plaintiff . . .Camplete Items 1, 2, and 3. Also complete nem 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 If space permits. 1. Artide Addressed to: SENDER COMP! E: if THI':, Sf C nON Vance- W. Bretz, Jr. 403 Mountain Road Summerdale, PA 17093 3. SaNica Type 110 Certttied Mali 0 Express Mall o Registered 13 Return R_pt for Merchandise o Insured Mall 0 C,Q,D. , _cted DoliVOl)'? (E<lnl Fee) 110 Yes 2. Article Number (Trans,", ~ service label) PS Fann 3811, February 2004 7002 0860 0000 1074 3240 Domestic Retum Receipt 102595..()2-M-1540 o :r ru m :r l'- o .-'l o o o o Postage $ ~ 1I () ~' i, ?~ '" ".-, () " Total Postage & FeliS $ r-.. '"', 'I-, ..,:,." j; ,;~ ,'.) UNfi-;.~", ~ .~ _.,,,,,..,''''F,S).. rn r..; 3~~ ">'n ~ ...;)0' f.1 ~"rk ill ;;; 0.' . Hart "tl '2 '" ,.' u " ,~. i ~.,t 4" '. ~'-,',,:,:.,D ~~,;:; ;1 ~n :.> (,~;_ 0 ~iJA)':': c ....~ -I I<'.i;! ru o o SentTo <it;.. ["\- u.y"gP'.~g.J~x.~.t:.~.)...J..t:-".^.._....m..m.."..~.Q.'~~~"'_"h"h__" ;:~~i::.~tintain Road ;' 0 ~.. '1 ,_,.,):. CtJl -, cirlil~Wil.jlp-;...1'A.....T7D'9J..............................__...n...... PS Form 3800, Apnl 2002 See Reverse for InstructIons 2 Ci C. ." ..... GNANA M. CHINNIAH a/k/a GNANACHANDRA M. CHINNIAH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2005-5045 CIVIL TERM KENNETH L. BRETZ a/k/a KENNETH L. BRETZ, SR., and GAIL ILENE BRETZ, husband and wife, and MARY ANN BRETZ, Defendants CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 1st day of May, 2006, after hearing, we find in favor of Plaintiff and against Defendant on the issue of the existence of an easement by implication. Specifically, we find that 36 Creekside Drive has an easement for parking in the area to the southwest of 40 Creekside Drive. Said easement shall be for up to four vehicles owned by the residents of 36 Creekside Drive. Additionally, during special occasions, guests at 36 Creekside Drive may park for up to four hours. Provided, however, that no more than six guest vehicles shall be permitted at anyone time. The easement also allows for access by foot from the parking area to 36 Creekside Drive. The path of the foot easement is along the berm of the roadway in front of the porch at 40 Creekside Drive, with further access onto the porch at the northern opening and onto and across the sidewalk to 36 Creekside Drive. In order to enhance the safety of the foot traffic, the Defendants are directed to remove the concrete steps in front of the porch within 30 days of today's date. .,... -. Page 2 Chinniah VS. Bretz May 1, 2006 Edward E. Guido, J. ~glaS G. Miller, Esquire 60 West Pomfret Street Carlisle, PA 17013-3222 For the Plaintiff ~~es G. Morgan, Jr., Esquire /111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 ,\ For the Defendants ~ srs tl ......... 6S:11 C"_ 1"]1) (\';07 v hi> d JUL.-v J~t;\.,-C!I <'-' U,',::'.~,::l 3H1 :10 ?:~J: :1 ':O--Ci:nLj