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PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff,
V.
DONALD A. MCCULLOUGH and :
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 5$Ct)
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case may proceed without
you and a judgment may be entered against you by the court without further notice for any
money claimed in the Complaint or for any other claim or relief requested by the Plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
717-249-3166
800-990-9108
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas
demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al
partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia
escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o
sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se
defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso
notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted
puede perder dinero o sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGAGO INMMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
717-249-3166
800-990-9108
McNEES WALLACE & NURICK LLC
By gLd -k
Helen L. Gemmill (ID No. 60661)
Sean P. Delaney (ID No. 85996)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Dated: November 7, 2005
2
PRESBYTERIAN HOMES, IN THE COURT OF COMMON PLEAS OF
INCORPORATED, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
V. CIVIL ACTION - EQUITY
DONALD A. MCCULLOUGH and :
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR., NO. .?5' s?day
Defendants
COMPLAINT
Presbyterian Homes, Incorporated, by and through its counsel McNees Wallace
& Nurick LLC, for its Complaint against Donald A. McCullough, Vicky C. McCullough and
Harry H. Fox, Jr., avers as follows:
The Parties
1. Plaintiff Presbyterian Homes, Incorporated ("PHI") is a Pennsylvania
corporation with its principal place of business at 1217 Slate Hill Road, Camp Hill,
Cumberland County, Pennsylvania.
2. Upon information and belief, Defendants Donald A. McCullough and Vicky C.
McCullough, husband and wife, (the "McCullough Defendants") are adult individuals
with an address of 205 Greenridge Lane, Newville, Cumberland County, Pennsylvania
17241.
3. Upon information and belief, Donald T. McCullough and Helen G. McCullough
are the parents of Defendant Donald A. McCullough.
4. Upon information and belief, Defendant Harry H. Fox, Jr. ("Fox") is an adult
individual residing at 600 Cold Springs Road, Dillsburg, York County, Pennsylvania
17019.
Factual Averments
A. Title History
5. By deed dated April 5, 1954, recorded in Cumberland County, Pennsylvania
Deed Book 15R, page 303, Donald T. McCullough and Helen G. McCullough acquired
ownership in a tract of land described as follows:
BEGINNING at a rail monument in the South line of the Pennsylvania Railroad
Company right of way line, at the distance of 67.8 feet Southwardly from a point
in and measured at right angles to the line established as the center line of said
Railroad Company's railroad, Newville - Oakville Revision, said Place of
Beginning being also at the distance of 87.2 feet measured Eastwardly along
said Southerly line of said right of way line from another point therein at the
Easterly end of the Southerly abutment of Highway Bridge No. 0.29; extending
thence from said beginning point South 36 degrees 28 minutes East, partly by
land of said Railroad Company and partly by land now or formerly of A.D.
Laughlin, crossing the Northeasterly line of a Public Road, and partly along the
middle line thereof, 1421.5 feet to a railroad spike at a corner of land now or
formerly of Cyrus McCullough, thence south 53 degrees 50 minutes West, by
said last mentioned land, crossing the Southwesterly line of said Public Road,
1512.5 feet to a post at a corner of land now or formerly of Ellen A. Parker;
thence North 45 degrees 6 minutes West, partly by said last mentioned land
and partly by other land of the Pennsylvania Railroad Company, crossing Big
Spring, 2354.2 feet to a point at or near the Southwesterly corner of Big Spring
Bridge No. 29.2; thence the following three courses and distances by land of
said Railroad Company; (1) North 76 degrees 27 minutes East, recrossing said
Big Spring, 97 feet to a rail monument distant 105 feet Southwardly from a point
in and measured radially to the said center line of said railroad; (2) North 76
degrees 27 minutes East 595.4 feet to a rail monument distant 95 feet
Southwardly from a point in and measured radially to the said center line of said
railroad; and (3) North 81 degrees 14 minutes East, recrossing said Public
Road, 1386.9 feet to the Place of BEGINNING.
CONTAINING 71.734 Acres more or less.
Excepting therefrom however, that portion of the above tract designated as
Tract No. 2 in the Deed of C. Walter Ocker and Bertha S. Ocker, his wife, to
Edward J. Lehman, dated July 6, 1936, and recorded in the Cumberland County
Recorder's Office in Deed Book "X", Vol. 11, Page 227.
A true and correct copy of the April 5, 1954 deed is attached hereto as Exhibit A and
incorporated herein by reference.
2
6. By deed dated September 30, 1976, recorded in Cumberland County,
Pennsylvania Deed Book V26, page 78, Donald T. McCullough and Helen G. McCullough
conveyed 2.416 acres of the tract of land described in the foregoing paragraph to
Presbyterian Homes, Inc., being the portion of that tract that today comprises the private
road known as Green Ridge Lane. A true and correct copy of the September 30, 1976
deed is attached hereto as Exhibit B and incorporated herein by reference.
7. By deed dated April 20, 1982, recorded in Cumberland County, Pennsylvania
Deed Book T29, page 157, Donald T. McCullough and Helen G. McCullough conveyed
three tracts of land from themselves (as grantors) to themselves (as grantees) and to
Donald A. McCullough and Vicky C. McCullough. A true and correct copy of the April
20, 1982 deed is attached hereto as Exhibit C and incorporated herein by reference.
8. The April 20, 1982 deed provided a description of a tract identified as "Tract
No. 1." The description of Tract No. 1 in the April 20, 1982 was identical to the
description of the tract in the April 5, 1954 deed (Exhibit A hereto) except for an
additional exception to Tract No. 1 for the 2.416 tract of land conveyed to PHI by the
September 30, 1976 deed.
9. By deed dated May 15, 1991, recorded in Cumberland County, Pennsylvania
Deed Book C35, page 661, Donald T. McCullough, Helen G. McCullough, Donald A.
McCullough and Vicky C. McCullough conveyed Tract No. 1 from themselves (as
grantors) to themselves (as grantees). A true and correct copy of the May 15, 1991
deed is attached hereto as Exhibit D and incorporated herein by reference.
3
10. The description of Tract No. 1 in the May 15, 1991 deed is identical to the
description of Tract No. 1 in the April 20, 1982 deed.
11. On December 2, 1996, Helen G. McCullough died, and by operation of law
her interest Tract No. 1 passed to her husband, Donald T. McCullough.
12. On August 24, 1998, Donald T. McCullough died.
13. By deed dated January 11, 2000, recorded in Cumberland County,
Pennsylvania Deed Book 215, page 262, the executors of the Estate of Donald T.
McCullough conveyed the interest of Donald T. McCullough to Donald A. McCullough
and Vicky C. McCullough conveyed Tract No. 1 from themselves (as grantors) to
themselves (as grantees). A true and correct copy of the January 11, 2000 deed is
attached hereto as Exhibit E and incorporated herein by reference.
B. The Agreement With PHI And Right Of First Refusal
14. On December 30, 1991, PHI entered into an Agreement (the "Agreement")
with Donald T. McCullough and Helen G. McCullough, husband and wife, and Donald A.
McCullough and Vicky C. McCullough, husband and wife. A true and correct copy of
the Agreement is attached hereto as Exhibit F and incorporated herein by reference.
15. Under the Agreement, PHI agreed to grant an easement and right-of-way to
Donald A. McCullough and Vicky C. McCullough to be used only for the purpose of
ingress and egress over Green Ridge Lane (the tract of land acquired by PHI by deed
dated September 30, 1976) to the private residence of Donald A. McCullough and Vicky
C. McCullough.
16. The Agreement further granted to PHI a right of first refusal to purchase real
property described in the Agreement as "the residence property."
4
17. The right of first refusal in the Agreement provided in particular that:
In the event Donald A. and Vicky C. McCullough and/or their children and
lineal descendants decide to sell or otherwise dispose of the residence for
which the easement and right-of-way has been granted, Grantors [the
McCullough Defendants] hereby grant to Grantee [PHI], its successors
and assigns, a right-of-first refusal to purchase the residence property for
which the above granted easement and right-of-way was given, for its fair
market value determined by averaging two appraisals made by qualified
appraisers employed by each party.
Agreement, Exhibit E hereto, at ¶ 5.
18. At the time of the Agreement was executed, the private residence of Donald
A. McCullough and Vicky C. McCullough was located on the parcel described as Tract
No. 1 in the deeds dated May 15, 1991 and April 20, 1982.
19. Accordingly, the "residence property" as referenced in the Agreement is the
entirety of the parcel described as Tract No. 1 in the deeds dated May 15, 1991 and
April 20, 1982.
20. Under the Agreement, Donald T. McCullough, Helen G. McCullough, Donald
A. McCullough and Vicky C. McCullough also agreed to convey, and subsequently did
convey, 1.383 acres of land to PHI.
21. The 1.383 acres parcel was a portion of a tract of land identified in the April
20, 1992 deed as Tract No. 3, but is incorrectly referenced in the Agreement and in the
February 27, 1992 deed as a portion of Tract No. 1.
22. The Agreement was recorded on October 4, 1994 in the Office of the
Recorder of Deeds in and for Cumberland County, Pennsylvania in Miscellaneous Book
483, Page 513.
23. The Agreement was a final, unconditional, binding and enforceable contract.
5
C. The Sale To Harry Fox
24. At some time prior to April 5, 2005, the McCullough Defendants decided to
sell four tracts of land which they owned. The four tracts included the residence
property, known as Tract No. 1.
25. Prior to April 5, 2005, the McCullough Defendants offered to sell all four tracts
to PHI, comprising approximately 230 acres.
26. The McCullough Defendants did not offer to sell only Tract No. 1 to PHI.
27. PHI declined to buy all four tracts of land combined. PHI was willing,
however, to purchase the residence property Tract No. 1, in accordance with its right of
first refusal, and to also purchase the tract of land identified as Tract No. 3.
28. As such, PHI advised that it intended to exercise its right of first refusal to
purchase the residence property under the Agreement.
29. In accordance with the Agreement, PHI obtained an appraisal to reflect the
market value of Tract No. 1.
30. The McCullough Defendants failed to comply with their obligation under the
Agreement to provide their appraisal of Tract No. 1.
31. The McCullough Defendants failed to convey the residence property to PHI
as required under the Agreement.
32. The residence property was instead conveyed by the McCullough Defendants
to Harry H. Fox, Jr. by deed dated April 5, 2005. A true and correct copy of the deed is
attached hereto as Exhibit G.
6
33. The deed from the McCullough Defendants to Harry H. Fox, Jr. was recorded
in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in
Miscellaneous Book 268, Page 1707.
34. Fox was aware of the Agreement between PHI and the McCullough
Defendants and the right of first refusal contained therein at the time that Fox purchased
the residence property.
35. The McCullough Defendants breached the Agreement with PHI by failing to
offer Tract No. 1, as a separate and independent parcel to PHI. The McCullough
Defendants also breached the Agreement by failing to obtain an appraisal on Tract No.
1 and by conveying Tract No. 1 to Fox.
36. PHI continues to desire to exercise its right of first refusal and purchase the
residence property.
Count I - Specific Performance
37. The averments of paragraphs 1-36 of the Complaint are incorporated by
reference as though set forth in full herein.
38. PHI has fully and faithfully performed all obligations required to date under the
Agreement.
39. PHI stands ready and willing to perform all remaining obligations required
under the Agreement to effect the transfer of the real estate to PHI.
40. The McCullough Defendants breached the Agreement.
41. The residence property is a unique parcel of real estate.
42. PHI is entitled to specific performance of the Agreement as no damages at
law can adequately compensate PHI.
7
WHEREFORE, PHI requests that the Court order that Defendants specifically
perform the Agreement and by good and sufficient deed convey and assure the
premises known as Tract No. 1, and every part thereof with marketable title (per the
Agreement), in fee simple to PHI.
McNEES WALLACE & NURICK LLC
By
Helen L. Gemmill (ID No. 60661)
Sean P. Delaney (ID No. 85996)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Presbyterian Homes, Incorporated
Dated: November 7, 2005
8
VERIFICATION
Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to
authorities, I hereby certify that I am authorized to make this verification on behalf of
Presbyterian Homes, Incorporated, that I have reviewed the foregoing and that the facts set
forth therein are true and correct to the best of my knowledge, information and belief.
Presbyterian Homes, Incorporated
"n
ay
Printed name
Title
Dated: November <, 2005
lk}+
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aaw;45 K fyQ:w,s
This Deedl,,
,Mdbt I((t S'd, .(rry r+/' / lit Q in the y. rv of our
lunl unr ll+oearrtnrl papa hrui+Irel and flf,ty-four (154),
MdEvern C. WALTER CCREFR and BERTHA S. OCR hia wife, of the
Towdelltp of Nest Pennaboro, Cumberland County, Pennsylvania,
GRANTORS,
A N D
DONALD T. Ila WILOUCH and HELE14 0. Ho CULLOUGH, his
wife, of the rownshin oi' •-est Pennaboro, Cumberland County,
Pennsylvania, GRANTESS.
0(1tessei)1, that in eonsid ratfnn of one (111. CC)
Auilnrs,
in hand paid, the retwipt rrhrny' Is herrhy arkru+rclrrdQrtil; the tlrwnter s rto
hrreby ?rnn1 orr,l moray to the said flnrnteef, their 11virs and .4ac(fr+s,
ae to by rntlreties.
R that certain tract or parcel of land, rituate in the
Township of Test Pennaboro, County of Cumbcrlnte and State of Penn-
sylvania, bounded and described as followst
SEGZNN1n0 at a rail monument in the Southerly line-of lend of
The Pennsylvania Railroad Company, at the distance of'sixty-seven
feet and eight-tenths of a foot Southwardly from a point in end
measured at right angles to the line established as the center line
of said Rallroa,' Company's railroad, Ilexville-O"ville Revision,
said place of beginring being also at the distance of eighty-seven
feet and two-tent)1s of a foot measured Searwardly along anid
Southerly line of Land of 'allrond Vo:,nnnY from encthe6 point tl:ereln
at ti:9 Easterly end of the Southerly atutment or `lighwsy Bridre
Number 0.24; extending thence from anid terimane roint Louth
thirty-six degrees twenty-elr*nt ninutee Bast, nartly by 1^^d of
S: P^ld Railroad Connany and nnrtly by lnnA nov or former!;; of A. D.
?+n L;iughlin, crossiar; the aorthenerr ri, line of +t ruollc =o^d, end
h nnrtly nlonr, the :aiddle line thereof, one thounani four hundred nud
twenty-one feet and five-tenti7a of r foot to a rnllrond snake at a
s corner or land now or form4rly of Cyrus Ito Cullouch; thence Gout9
,V flf ty-three derr! a fifty minutes West, by nrld loot-entloned
N land, oroneln?, ti:e Southwe.r.tirly lint or aniA Public ron+R, one
4 thoueanl flve hvndrea na' twelve rent ^n+ rlvo-ten*,P of n .'not ^^
a •+oet at a corner or Lind .taw or formorly of Ellen A. yr thence North forty-five decreer six nlnutex "eat, nartly by onid
!net mentioned land nrd nnrtly 'iy other land of t'ee anld ':%+e
Pennsylvania Rnilrond t?omnnny, oroPeino Bic Sorinr•, two -::our^nd
three hundred end fifty-four feet ne:d two-tentftf of n fizz to n
point nt or -tear the Southwesterly corner of Sin s-,rtnr arl4ee
Number 29.2• thence the followlnx three courses nn•< 8L<-,?nee? by
raid land of Rnllrond Co-sonny: (1) north seventy-six ee=reeP twer.ty-
seven minutes East, recreTSinr asld 819 Sprtnc, ninety-Peven fees
to a rail monument distant one hundred and fire feet aont.:.,rily
from a nolnt in end measured radially to t^e Pat,' center lint of
rnilroad; (2) :Borth reventy-;Ix derreee twenty-reven ;airutPa Zr-t
five hundred and ninety-rive feet and four-tenti:e or n font to e
rnil nonumcr,o dletant ninety-flve feet Sout2:wnrdl;' rrorl n nolnt in
pnd nensured railnlly to t:e raid ce::ter line of rrilro ^r.: (')
North elahty-ono derreee fourteen -lnntor. Ear., rcvno^n1n, n^11
Pnhlio Rona, one thouf^r„R thr-O7lunr'reA.. and e:ra:y_elz feet ^nd
I5 ? wzilM
seventy-one sores and seven hundred and t'!irty-'wir me-th.nu and the
of n--n ,?e, mnre or lee -
BEING Parcel Number a,o which Nanor Real Sstnte end Trust Cononny,
by Its Deed, dated Auril 19, 1952 and recorded in the Cumberland
County Recorder's Office in Dead Acok "R", Vol. 11, Patre 42
granted and conveyed to C. Walter Ocker and.Bertba S, oker, his
wile, Grantors herein.
UNDER AND SUBJECT as to so much of the above described areviees
as 1s included within the lines of the Public Road above mentioned,
to the use thereof by all nartlea lawfully entitled thereto.
PROVIDED always and this conveyance Is mrde on condition that
neither the Grantors, nor their heirs and aeeimne, nor tae Penn-
sylvania Railroad Comanny shall be liable or obliged to construct
or maintain any fence between the above dencribed tracts or parcel
of land and land or the said Railroad Cgm7lany adtoining the arms
on the Southeast and Northwest; or be fable or obliged to nay fnr
any part of the coat or exoense of constructinx or maintaining much
a fence or any onrt thereof; or be liable for any domnze that nay
result by reason of the non-exietence of such a fence.
EXCEPTING TRVISPROM, however, that portion of the r. rove tract
designated as Trnct No. 2 In the Deed of C. 'frlter Ocker nnd Perthn
S. Ocker, his wire, to Edward J. Lehman, dated July e, 143n, snd
reooried in the Cumberland 7ounty Fecorder'= Office Sn Deed Book
"X", Vol. 11, Peas 227,
f1Y.t V1?I ^'rcMt Y(Y.f Yln?
.? I .a•? .'Yap ,? Yy .
Soaolirilis 2uVu"Li NS JD iellaNS
the nrroperty iter•rl+y conreyrd.
311 300arss 011errof, thr (ityrnlars tiff ve /ferrrrnla erf thelrafad nand vri
the day and year flrml fluff • rr•riffea.
3ignib, Sealed Daft £Ieli?,nrd 1
in file preernrr of
Commonfucs114 of PeansuManin
4'iounttt of CUM HAND ) as.
On MO. the 5?,,yq drtu o /?•• ./. JI, 1;1 bA , la•/arr air
y an. elFt?, the frrrrlrrviefrr•d f)jjic,r'/n•nvornr!!l,
rtppf• n•r C, ?•;o1te Ocher And Bertha S. Oeger h1F wife
A"aafr1 la rrre rn+!«uliajnrlnri111
pevnrul !a Gr !hr prrsanurliaxr arumre erelrrilarriheel to tiff, trilhile ifrmlea+r+rill, rtrrd
arknatrieWIM dell they fly aratrrL 1/rr Brllr+r /ire t!n• prey+axrx (/(4rrrf iH'r+fafainr•a,
3111 TOR11"a Plleroof, J hrrauafs met ff+•y hared mud a/fle(at J( !K ;•\
lrnnaulfrauia
?iamatauturotth of
coutttt of fm thie, the (iffy of •l. J1. l(1 h,/orr air
the fntdrrslAtnrd affirrr. prr•Norlolly
frpprrrr•ed
Olowl, to file. for
/un+•ee I la he the p•rAaa rriffase aurae srrlrarrihrd to the adthia instnrr»rot, and
rtrkawf•lf•dged Milt he a erah•rt the xrgnr/ar the purp+rrm therein rontainrd.
In 33fiturss g4rrrof. J herretrtla met iffy hand first/ oillelnt enrt.
Tsae of Uelaer • ' _?.__
'?1' tats P(
)aa_
(TitlPntp Pf
1Nt lhis, Me day of .d.A 19 - . before n+r
the taulersi,gnrd oJjfrer, personally
ryiyrrnrer!
knwrn fa aw. or
xrdisJirrtarilty
prwreny to be life peraorr taJraee name salwerdrrd to tier n•llhin ins(runrrnf, end
rtaknurelr!rlped that he r.romited the same far the purpasrx lherrfa eanlained,
on Pttness 011creaf, J herowito set my howl. (roll al(iriel vra4
1111. or Vmar
31 3{rsebor tGrrti4S• !)ntf [Itr perp•is resirlrncr n/'lhr Urvnlea3 ti
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to I Z ? ,p7 '? ? •JY
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R7 G1 ???iis ? '?!.
ICaomtenfaealt4, at vennapluamia
(coaniq of L?+se aw?`? yss.
Recorded on this S day or r??a.?-?
d. V. mi?s , in the Reenrder's t71co aJ said Courrly in OnV lhrot (S'
I'olumc k4 ,!'ape 343
Given under my, hand and seat of the said ('')fire. der day a4orr a•rrtlrn.
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Mo. Us F1,FH1311'LE 11Eh:11-Typewrhr,
(It?QI/tit?t?rUL'1?, t?iuilr ante
3 O day of ?SLId? (a_rkr y ar o/ am far.( On•
rhaaun.d Siae rtnadrrd and seventy-six, --
Nettl(rni DONALD T. MCCULLbUGH and HELEN G. MCCULLOUCH, his wife,
of West Pennaboro Township, Cumberland County, Pennsylvania, Grantors
and parties of the first part
A
N
D
PRESBYTERIAN HOMES, INC., a Pennsylvania non-profit corporation,
its principal offices at Dillaburgr York Couneye Pennsylvania,
Grantee and party
.J fhe „rand tort. iU ItNr5 B rill ;'oat rhr .oid,.,dea .,/ tn, p,", twd, far amf w ",,.awmau,m
n)the.aln n) Eleven Thousand and 00/100 (511,000.00)-----------------
1101", ma•J,.r a,aa.•y 0/ the t'n;err M." a/ dm,r i"', men All fray paw 6g it, raid p,,r Or of (h,
araad Par( to the mw 1K. ties of the pr et girt, at amt 6rJme the Amii,P and mirrrg of ,hr„
pruenb, the r ,ipt ¢herm/ to Assay oekaaaf,dyra,
tooatrd, Eoryoiaed, .aid, 01,.<d, o,frvf/ed, "'Unr"f, "a,resrd and eaafiraie4 and by thrar Pr urn la sa
grad, 4.rrrrin. ,rlr, H. n, ,nl•'n IJ. "drn¢. rnnrrg, nenf ""firm aata 1A, mf•( "Ity eJ
the $mod Pore its Successors ;61G6 a?u! na. ign.,
jktt the following described tract of land situate in West Pennsboro
TOwnship, Cumberland County, Pennsylvania, bounded and described
as followst
BEGINNING at existing iron pin at a corner common to land of Presbyterian
Homes of Central Pennsylvania and land of Donald T. and Helen
G. McCullough, said point of beginning also being S 380 13' 00"
E 1034.00' from another corner of land of Presbyterian Homes of
Central Pennsylvania; thence from the said point of beginning
by land of Presbyterian Homes of Central Pennsylvania N 380 131
001 W 50.00' to an iron pint thence by other land of Donald T.
and Helen G. McCullough N 530 15' 00" E 4.811 to an iron pin;
thence by the same N 63. 18' 00" E 804.04' to an iron pint thence
by the same S 75027' 00" E 266.73' to an iron pint thence by the
same S 231 27' 00' E 262.89' to an iron pin; thence by the same
S 690 571 45" E 137.64' to an iron pin; thence by the same N 630
31' 30" E 633.66' to a parker-kelon nail in the centerline of
PA. Rte. #2331 thence by the centerline of PA. Rte. 1233 (33'
wide right-of-way) S 270 47. 30" E 50.011 to a parker-kalon nail
in the centerline of PA. Rte. 1233; thence by other land of Donald
T. and Helen C. McCullough 6 63. 31' 30" W 636.30' to an iron
pin; thence by the same N 690 S7' 430 N 180:61' to an Iron pint
thence by the same N 23' 271 00" W 259.991 to on iron pin, thence
by the same N 750 27' 00" W 223.52' to an iron pin, thence by
the some S 630 18' 00" W 779.94' to an existing iron pin, the
place of beginning. BOOK V26 I3Ct 78
Containing 2.116 ± acres as per draft of Arrowood, incorporated,
dated 30 June 1916, revised 6 Auqut 1976, drawing number 76-77
and entitled "Draft of Survey of Tlact of Land for Presbyterian
Homes of Central Pennsylvania in Went Pennaboro Township, Cumber-
land County, Pennsylvania."
BEING part of the same premises which was conveyed by C. Walter
Ocker and Bertha S. Ocker, his wife, by their deed dated April
5, 1951, and recorded-in the office of Recorder of Deeds for Cumberland
County in Deed Book 15, Volume R, Page 303 unto Donald T. and
Helen G. McCullough, his wife, Grantors herein.
COM4t^11•.VCGITi I OF piJ"'.d:a lp.tA =
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1300tthtr -aft alt add deywlar, the hnea yatt, hardMtaMeeto ago appartManrrt fa the Mlnt
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owls, IMNep wad profits Memaft AM y(ys all the c4ktc, rival, 1tga, tlnP i, ptaparly, data
and demand Whotrotaer, Do* is-tsp suit toasty, of the a(d parties of the fba/ pan, ef, in, to
a oat of Ma std prosaism, and wary tart and Pared thereof
(,!D IPM tltt.d to 4vLb ear alit ywt,., a(tk alt add dayntor the .pparr0nanea, Vale
thea(d party al tba asalnd port, SCS sucreBl y,y aatpas, is and for the wly pMprr
err td aoholj gl tk0 sold prry of 0114 a ho part, ito successors eA6irftond "signs
for ver,
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trim, r:rewforr-ond edwiMs(wten, do by Mrae preaata, oaranant, groat and go", to sad
with the+nid party' of Mp awoand part. its successors Admand
asifnry that they, ,^fpe raid parties of the fJrst pert, their
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sad (a/ehot( as le to, with appertdaana4, onto eke saw FRAY of 9Ao aeand pwrl,its se6Cerssorn
'nano had googol, asainst the tow parries . of Me lint part and their keira and aDOtns1 au
and clay offal prmn w persons, alhewooeoer, toujoliy datainy or to daft the awn or any pan
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forf%c Coun Deed Book V . Vol...A.Az...
Page ,._..7f . .
W-mmser aUy Hand jLna a'oal of Office, this .. =yQ 7 day of
- •, r°??-G "Pr- . no Domini 19 7w
Lot \126 ?uE Si
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Tb 1"s , -B, EEC,
MADE THE day of April in the year
of our Lord one thopaand nine hundred eighty-two (1982).
ESTWESN DONALD T. MCCULLOUGH and HELEN G. MCCULLOUGH, his wife,
of R. D. 1, Hawville, Cumberland County, Pennsylvania, hereinaft'e ::
called
GMntors,
and DONALD T. MCCULLOUGH and IfELEN G. MCCULLOUGH, his wife, of
R.. D. 1, Newville, Cumberland county, Pennsyivaniat 4r4 DONALD A,
McCULLOUGH•and VICKY G. MCCULLOUGH, his wife, of the Borough of
Newville, Cumberland County, Pennsylvania, hereinafter called
Craxtee a r
WJTNffiSSETH, that in oo'esidmHox of one Dollar (61.00) and other valuable
Consideration DoHary
is hand paid, the ncdpt whereof p Atreby acknowledged, the raid grantors do hereby graxt
and aonneeyy to the eaid grxnte6 their heirs and assigns as hereinafter
provided,,
. ALL those three certain tracts of land with the improvements
thereon erected, situate in Nest Pennsboro Township, Cumberland
County, Pennsylvania; bounded and described as follows:
TRACT . 1: BEGINNING At a rail monument in the South line of the
ennsyN0van a Railroad Company right of way line, at the distance of
67.8 feet Southwardly from a point in and measured at right angles to
the line established as the center line of said Railroad Company's
railroad, Newville - Oakville Revision, said Place of Beginning being
also'at the distance of 87.2 feet measured Eastwardly along said
Southerly line of said right of way line from another point therein at
the Easterly end of the Southerly abutment of Highway Bridge No. 0.29;
extending thence from said beginning point south 36 degrees 28 minutes
East, partly by land of eaid Railroad Company and partly by land now or
formerly of A. D. Laughlin, crossing the Northeasterly line of a Public
Road, and partly along the middle line thereof, 1421.5 feet to a rail-
road spike at a corner of land now or formerly of Cyrus McCullough;
thence South 53 degrees. 50 minutes West, by said last mentioned land,
Crossing the Southwesterly line of said Public Road, 1512.5 feet to a
post At a corner of land now or formerly of Ellen A. Parkert thence
North 45 degrees 6 minutes hest, partly by said last mentioned land and
partly by other land of the Pennsylvania Railroad Company, Crossing Sig
Spring „ 2354,2 feet to a point at or near the Southwesterly corner of
Big Spring Bridge No, 29.2; thence the following three courses and dis-
tances by land of said Railroad Company: (1) North 76 degrees 27 minutes
East, recrossing said Big Spring, 97 feet to A rail monument distant lo5
Peet Southwardly from a point in and measured radially to the said canter
line of said railroads (2) North 76 degrees 27 minutes East 595.4 feet
to a rail monument distant 95 feet Southwardly from a point in and meas-
ured radially to the said canter line of said railroad; and (3) North 81
degrees, 14 minutes Easn recrossing said Public Road, 1386.9 feet to the
Place of BEGINNING; Containing 11.734 Acres, more Or less.
UNDER AND SUBJECT as to 90 much of the above described premises as
is included within the lincs of the Public Road above mentioned, to the
use thoraof by all parties lawfully entitled thereto.
PROVIDED always and this conveyance is made on condition that
neither the Grantors, nor their heirs and assigns, nor the Pennsylvania
Railroad. Company shall be liable or obliged to construct or maintain any
aGaa '9 WE 157
fence between the above described tracts or parcels of land and land of the
said Railroad Company adjoining the same on the southeast and Northwest; or
be liable or obliged to Pay for any of the cost or expense of eonatructing .
or maintaining such a fence or any part thereof; or be liable for any damage
that may result by reason Of the non-existence Of such a fence.
EXCEPTING THEREFROM, however: (1) That portion of the above tract designated
as Tract No. 2 in the deed of C. Walter Ocher and Bertha S. Ocker, his wife,
to Edward a. Lehman dated July 6, 1938, and recorded in the Office of the
Recorder of Deeds for Cumberland County in Deed Book "F", Vol. 11, Page 2277
and (2) The tract of land conveyed by Donald T. McCullough and Helen G.
McCullough, his wife, to Presbyterian Homes, Inc., by deed dated September
30, 1976, and recorded in the Office aforesaid in Deed Book "V", Vol. 26,.
Page 78. ,
BEING the remaining portion of the property which was conveyed to
Donald T. McCullough and Helen G. McCullough, his wife, by C. Walter Ocker
and Bertha S. Ocker, his wife, by deed dated April 5, 1954, and recorded in
the Office aforesaid in Dead Book "R", Vol. 15, Page 303.
TRACT N0. BEGINNING at a point, a corner of land new or formerly of
Bar a Oc or and the right of way of the Pennsylvania Railroad Company;
thence along the right of way of said Railroad Company, North S6 degrees 39
minutes test 1511 feet to a point; thence by the same, North 86 degrees 29
minutes East 1710.3 feet to a post in line of land now or formerly of Robert
McCachranj thence by said land, South 38 degrees 59 minutes East 974.7 goat
to a post in line of land now or formerly of Hugh K. McCullough; thence by
sai¢ Iand, South 65 degrees 12 minutes West 2109.75 feet to a white oak;
thence by the fame, South 55 degrees 57 minutes West 789.2 feet to a point
in the State Highway leading to.Gettysburq, A corner of land now or formerly
of Hugh K. McCulloughy thence along said lane and the approximate center of
said State Highway, North 34 degrees 53 minutes Woet 2027.1 feet to a point,
corner of land now or formerly of Bertha ocher; thence along said land, North
55 degrees 20 minutes East 18.5 feet to a point; thence by the same, North 27
degrees 55 minutes Nast 246.7 feet to the Place of BEGINNING; Containing
113.26 Acres.
EXCEPTING THEREFROM, however, those certain tracts of land conveyed by
Donald T. McCullough and Helen G. McCullough, his wife, as follows: (1) To
Melvin Mixell and Ethel R. Mizell, his wife, by dead dated December 2, 1946,
and recorded in the office aforesaid in Deed Book "I", Vol. 13, Page 5761
(2) To Melvin Mixell and Ethel R. Mixall, his wife, by deed dated may 1,
1947, and recorded in the Office aforesaid in Deed Bock "O", Vol. 13, Page
6; (3) To Sylvester A, Mixell and Kathleen C. Mixall, his wife, by dead
dated December 7, 1946, and recorded in the Office aforesaid in Deed Book
"K", Vol. 13, Page 84; (4) To Ralph E. Mohler and Dorothy H. Mohler, his
Wife, by deed dated November 18, 1952, and recorded in the office aforesaid
in Deed Book "D", Vol. 15, Page 2891 and (5) To Pennsylvania Power 6 Light
Company by dead dated December 14, 1978, and recorded in the Office afore-
said in Deed nook "r", vol. 28, Page 872.
BEING the remaining portion of the property which was conveyed to
Donald T. McCullough and Helen G. McCullough, his wife, by Hugh H.
McCullough and Marguerite T. McCullough, his wife, by deed dated September
30, 1946, and recorded in the office aforesaid in Deed Book 93", Vol. 13,
Page 223.
TRACT NO. 3: BEGINNING at an iron pin in line of land now or formerly of
W. ' cxees at the Northwest corner of land now or formerly of H. K.
McCullough; thence by said land now or formerly of W. W. rickes, North 53
degrees West 30.5 perches to An iron piny thence by land now or formerly
of Presbyterial Homes of Central Pennsylvania, North 54 degrees 15 minutes
East 62.7 perches to a paint; thence by the same, North 53 degrees 20
minutes East 21.7 perobes to an iron piny thence by the same, North 26
degrees 30 minutes West 20.1 perched thence by the same, North 14 degrees
west $4.7 perches to an iron piny thence by the same, North 32 degrees 10
minutes west 7.6 perches to a Pointy thence by the same, North 38 degrees
West 11 perches to an iron piny thence by the same, North 49 degrees 45
minutes East 24.1 perches to a point; thence South 36 degrees East 78
Perches to a Pointy thence by land new or formerly of H, K. McCullough,
South 38 degrees 45 minutes East 30.5 parches to an iron pint thence by the
same, South 53 degrees 45 minutes West 13.6 perches to a point; thence by
the same, south 52 degrees 15 minutes West 37.5 perches to an iron piny
thence by the same, South 38 degrees 40 minutes East 12 perches to an iron
piny thence by the same, south 54 degrees 30 minutes West 77.2 perches to .,
the Place of BEGINNINGI Containing 40.75 Acres; more or less.
BEING the same property which was conveyed to Donal T. McCullough
and Helen G. McCullough, his wife, by Presbyterian Homes of Central Penn-
sylvania, by deed dated December 31, 1962, and recorded in the Office
aforesaid in Deed Book "5", Vol. 20, Page 877.
THE real estate herein described and conveyed is improved with a
dwelling house, barns and outbuildi ^s. 1 $?
t0ox j 29 Y1.E "
?d1L4Of7[h'SCHafdl?MM54F 9xK*ICX4Mutat xxrkXXWXxxNXk
xiftkxxwmek 7t*xAxXoese8ltlamtalWxsGxXapsA
IT IS the intention of this deed to vast an undivided one-half
interest in Donald T. McCullough and, Nolen G. McCullough, his wife,
as tenants by the entiretieal and an undivided one-half interest in
Donald A. McCullough and Vicky C. McCullough, his wife, as tenants.by
the entireties; said undivided one-half interests to be held respectively
as tenants in common, . , ,
uNDMR AND SUBJECT, however, to the mortgage of Donald T. McCullough
and Helen G. McCullough, his wife, to The Federal Land Bank of Baltimore
dated October 29, 1975, and recorded in the Office aforesaid in mortgage
Book 596, Page 480, which Mortgage the Orentees hereinr by the acceptance
of this deed, hereby assume and agree to pay.
THIS conveyance is from parents to child and spouse'.
AND the said grantors hereby covenant and agree that they will
warrant generally the property hereby conveyed, subject, however, as
hereinbefore provided.',
IN WITNESS WHEREOF, said granter s have hereunto set their hands and seals
the day and year frost above written,
019110; OtA.1ra 4118 L)llteerta """""^^"L'-'!'L..G •• ^-• =sL
in tge-pteerner of, Donald T. McCUilou h
_..... 7-q-.vS..14...YU?.?. Q... o?aV
Helen G. McCullough
00M It
_.._r.......^.__..........?...._.„......._.f......._... ........................_.........._._......._.....?_..._._........... a
feb
T do hereby certify that the precise residence and complete post
office address of the within named Grantees isr c/o Donald A.
McCullough, 86 North Sigh St., Newvills, PA. 17241. N
April ;2a , 1982.
Attorney for eM..,MYu
ry ^
state of PENNSYLVANIA jjjjjj
}re.
County of CUMBERLAND
On thin, the e? 0 day of April , 10 82, before me,
the uudmnfgned oBtaer•, personalty appeared Donald T. McCullough and Helen G.
McCullough, his wife,
hwnun to or (or sadtafaotortty proven) to'be the porsors whose name s are subaeeibed. to the
1uWAin instrument, and ashn0lvtedV4d that they sxscltod the some for the pyl'yVierfl*ta
contained: r?M. • H ,i; .. ) •'•
IN WITNESS W11RI OF• I hereunto set my hand and o,QEC
e?'.5,,' i
JANICE E. HERT7LFR, NOTARY PUBLIC . ...... ........ ........... .._...:: ..........
rumherland County Ccrlislc, PA Tyt?e'PhW*A% . . t!
it
Piny Commission Expires Jcnuory 27, 1983 +?
DOOK7'29 WE 159
? X '?'?
THIS DEED,
MADE THE day of May in the year of our Lord one
thousand nine hundred ninety-one (1991)
B E T W E E N
DONALD T. McCULLOUGH and HELEN O. 10CULLOUGH, husband and
wife, of 205 Centerville Road, Newville, Cumberland County,
Pennsylvania 17241; and DONALD A. McCULLOUGH and VICKI C.
MOCULLOUGH, husband and wife, of 86 North High Street, Newville,
Cumberland County, Pennsylvania 17241,
Grantors,
A N D
DONALD T. McCULLOUGH and HELEN 0. McCULLOUGH, husband and
wife,- of 205 Centerville Road, Newville, Cumberland County,
Pennsylvania 172411 and DONALD A. MOCULLGUGH and VICKY C.
MCCULLOUGH, husband and wife, of 86 North High street, Newville,
Cumberland County, Pennsylvania 17241,
Grantees,
WITNESSETH, that in consideration of One and No/loo (11.00)
Dollar, in hand paid, the receipt whereof is hereby acknowledged,
the Said Grantors do hereby grant and Convey to the said
Grantees, their heirs and assigns, as hereinafter provided.
ALL THAT CERTAIN tract of Unimproved land situate in West
Pennsboro Township, Cumberland County, Pennsylvania, bounded and
described, as follows; -
TRACj No., BEGINNING at a rail monument in the south line
of the Pennsylvania Railroad company right-of-way line, at the
distance of. 67.8 feet southwardly from a point in and measured at
right angles to the line established as the centerline of said
Railroad Company's railroad, Newville-Oakville Revision, said
Place of BEGINNING being also at the distance of 87.2 feet
measured eastwprdly along said southerly line of said
right-of-way line from another point therein at the easterly end
of the southerly abutment of Highway Bridge No. 0.291 extending
thonco from said beginning point, South 36 degrees 28 minutes
East, partly by land of said Railroad company and partly by land
now or formerly of A.D. Laughlin, crossing the northeasterly line
of a public road, and partly along the middle line thereof,
142115 feet to a railroad spike at a corner of land now or
formerly of Cyrus McCullough; thence South 53 degrees 50 minutes
want, by said last-mentioned land, crossing the southwesterly
line of said public road, 1512.5 feet to a post at a corner of
land now or formerly of Ellen A. Parker; thence North 45. degrees
o:oKG35 rr?t 661
C6 minutes West, partly by said last-mentioned land and partly by
other land of the Pennsylvania Railroad Company, arousing Big
spring, 2354.2 feet to a point at or near the southwesterly
corner of Big spring Bridge No. 29.2; thence the following three
Courses and distances by land of said Railroad Companyt (1)
North 76 degrees 27 minutes East, recrossing said Big spring, 97
feet to a rail monument distant 305 feet southwardly from a point
in and measured radially to the said centerline of said Railroad,
(2) North 76 degrees 27 minutes East, 595.4 feet to a rail
monument distant 95 feet southwardly from a point in and measured
radially to the said centerline of said Railroad; and (3) North
91 degrees 14 minutes East, recrossing said public road, 1386.9
feet to the Place of BEGINNING.
CONTAINING 71.734 aerie, more or less.
UNDER AND SUBJECT as to so much of the above-described
premises as is included within the lines of the public road
above-mentioned, to the use thereof by all parties lawfully
entitled thereto.
PROVIDED always and this conveyance is made on condition that
neither the Grantors nor their heirs and assigns, nor the
Pennsylvania Railroad company shall be liable or obliged to
construct or maintain any fence between the above-described tract
or parcel of land and land of the said Railroad Company adjoining
the same on the southeast and northwest, or be liable or obliged
to pay for any of the cost or expense of constructing or
maintaining such a fence or any part thereof, or be liable for
any damage that may result by reason of the nonexistence of such
a fence.
EXCEPTING THEREFROM, howevers (1) That portion of the above
tract designated as Tract No. 2 in the Deed of C. Walter Ocker
and Bertha S. Ocker, his wife, to Edward J. Lehman dated July 6,
1938, and recorded in the office of the Recorder of Deeds of
Cumberland County, Pennsylvania, in Deed Book "X". Volume 11,
Page 2271 and (2) the tract of land conveyed by Donald T.
McCullough and Helen 0. McCullough, his wife, to Presbyterian
Homes, Inc., by Dead dated September 30, 1976, and recorded in
the office aforesaid in Deed Book "V", Volume 26, Page 78. V.o,?
BEING Tract No. 1 of the properties which Donald T.
McCullough and Helen 0. McCullough, husband and wife, by Deed
dated April 2G, 1982, and recorded in the Office of the Recorder
of Deeds of Cumberland County, Pennsylvania, in Deed Book "T",
Volume 29, Page 157, granted and conveyed unto Donald T.
McCullough, et al., Grantors herein.
IT IS the intention of this Deed to vast an undivided
one-half interest in Donald T. McCullough and Helen G.
-2-
64bx C$S Pat 862
McCullough, his wife, as tenants by the entiroties; and an
undivided one-half interest in Donald A. McCullough and Vicky C.
McCullough, his wife, as tenants by the entireties; said
undivided one-half interests to be held respectively as tenants
in common.
UNDER AND SUBJECT, HOWEVER, to the Mortgage of Donald T.
McCullough and Helen G. McCullough, his wife, to The Federal Land
Bank of Baltimore dated October 29, 1975, and recorded in the
office of the Recorder of Deeds of Cumberland County,
Pennsylvania, in Mortgage Book $96, Page 480, which Mortgage the
Grantees herein, by the acceptance of this Deed, hereby assume
and agree to pay.
THIS conveyance is exempt from Pennsylvania Realty Transfer
Taxes as a conveyance from parents and eon and daughter-in-law to
parents and son and daughter-in-law.
AND the said Grantors hereby covenant and agree that they
will warrant specially the property hereby conveyed.
IN WITNESS WHEREOF, the said Grantors have hereunto set their
hands and seals the day and year first above written.
signed, sealed and Delivered
in the Presence of
1n-andT. MoCU long
Helen a..?McccuI ouggrv /
?ial.o (C ( SEAL )
Donald
11 A. M`oyC?u ough '
??"r ?'11 14 ?fSEAL)
V sky . MCCLL .1euo
I do hereby certify that the precise residence and Complete
post office address of the within named Grantees is 86 North High
Street, Newville, Pennsylvania 17241.
May /S`, 1991 ," /l rc?-'"
Attorney or Grantees ?f
.3.
FWK G35 PACE 663
F-x? , ?,, -?- E
k-\,o e,
%a ,",T r.7l':Lrft
fl"45V% c; nrr:DS
CUIdCcRL,1Ylo colitliy-PA:
THIS DEED, `00A01 Miozs
Made the _&6day of JANUARY, 2000,
BETWEEN Donald A. McCullough and Denny N, McCullough, Exacutora of the Estate of
Donald T. Me Cullough, tape of West Pennsboro Township, Cumberland County,
Pennsylvania, party of the first part, hereinafter referred to es Grantor,
AND
Donald A. McCullough and Vicky C. McCullough, husband and wife, of West Pennsbom
Township, Cumberland County. Pennsylvania, party of the second pan, hereinafter referred to
as Grantee,
WHEREAS, the sold Donald T. McCullough died on March 24, 1098, leaving a Last Will and
Testament dated August 26, 1998 and proved in the o8ks of the Register of Wills M and for
Cumberland County and recorded therein at File ft 21-98-0289, by which he appointed
Donald A. McCullough and Denny H. Mc0ulough as his Executors.
WHEREAS, the Cumberland County Reglater of Wills Issued Letters Testamentary to Donald
A. McCullough and Denny H. McCullough as Executors of the Estate of Donald T. McCullough
on April 3,1096; and
WHEREAS, at the time of his death, the said Donald T. McCullough and Helen G. McCullough
owned an undivided one-half (%) Interest In a certain tract of land hereinafter described; and
WHEREAS, the said Helen G. McCullough predeceased bar husband Donald T. McCullough,
having died on December ? 1986 and her interest in this undivided one-halt (H) Interest In the
reel estate passed by operation of taw to her husband, Donald T. McCullough;
WHEREAS, Donald T, McCullough entered Into an Inslallmenl Salsa Agreement with Donald A,
McCullough and Vicky C. MoCu0oygh which provided for the transfer of the Dead after a8
payments under the Agreement had been made.;
WHEREAS, the First and Final AecuuniBg for the Estate of Donald T. McCullough was
presented for heafkt9 by the Court on October 12,1999. The Court approved the Flat and
Final Accounting as filed.
WHEREAS, all payments have been made pursuant to the Installment Sales Agreement and
the Estate Is now obligated to complete the transfer.
MoQea+ss n sroo van st tvteres saortw
e66K 215 ?ACE 262
NOW THIS INDENTURE WITNESSETH, that the said Grantor, for and in consideration
of one and 00/100 ($146) Dollar, lawful money of the United States, to him well and truly paid
by the sold Grantee at and before the sealing and dilOvery hereof, the Moelpt whereof Is hereby
acknowledged, by virtue of the power granted by law, has granted, bargained, sold, allened,
released, and confirmed, and by these presents does grant, bargain, sell, alien, release, and
confirm unto the sold Grantea, his heirs and assigns, as tenants by the entlretles,
All that certain tract or parcel of land and premises situate, lying, and being in the
Township of West Ponnsboro, County of Cumberland and Commonwealth of
Pennsylvania, more particularly described as follows:
BEGINNING at a rag monument In the south One of Me Pennsylvania Railroad Company
dghtof-way line. of he distance of 67,6 feet southwadly from a point In and measured
at right angles to the the established as the cenlerlina of said Railroad Company's
railroad, NewvIde•Oatwl6e Revision, said Place of BEGINNING being also at the
distance of 67.2 fast measured sastwardly along sold southody, line of sod dghl-af-way
tine from another point Mersin at the easterly end of the souibedy abutment of Highway
Brdge No. 0.29; extending thence from said beginning point, South 36 degrees 28
minulee East, party by land of said Railroad Company and partly by land now or
formerly of A. 0. Laughlin, crossing the northeasterly One ofa public road, and partly
along the middle line thereof, 1421.6 feet at a railroad spike at a comer of land now or
formerly of Cyrus McCullough; thence South 63 degrees 60 minutes West. by said lost-
mentioned land, crossing the southwesterly One of said public road, 1612.6 feet to a post
at a comer of land now or formerly of Egan A. Parker, thence North 46 degrees 06
minutes West, partly by said last-mangoned land and partly by other lend of the
Pennsylvania Railroad Company, crossing Big Spring, 2364.2 feet to a point at or near
the southwesterly corner of Big Spring Bridge No. 29,2; thence the following three
courses and distances by land of said Rallmed Company.. (1) North 76 degrees 27
minutes East, recrossing said Big Spring, 97 feet to a rail monument distant 106 feet
southwaNly from a point In and measured radially to the Bald cemerllne of said Railroad;
(2) North 76 degrees 27 minutes East, 096.4 feet to a rag monument distant 95 test
southwardly from a point In and measured radially to the said centerline of sold Wroad;
and (3) North 81 degrees 14 minutes East, recrossing said public road, 1386.9 feet to
the place of BEGINNING.
CONTAINING 71,734 some, more or loss.
UNDER AND SUBJECT as to eo much of the above-desonbed promises as Is Included
within the lines of the public road above-mentioned, to the use thereof by all parties
lawfully entitled thereto.
PROVIDED always and this conveyance is made on condition that neither the Grantors
nor their heirs and assigns, nor the Pennsylvania Railroad Company shall be liable or
obliged to construct w maintain any fence between Imo above- desoribed Imot of portal
of land and land of the said Railroad Company adjoining the same on the southeast and
-2-
6661f .r2j,J FACE 263
northwest; or be liable or obliged to pay for any of the cost or expense at constructing or
maintaining such a fence or any part thereof, or be Itable for any damage that may result
by reason of the nonexistence of such a fence.
EXCEPTING THEREFROM, however. It) That portion of the above trap designated as
Tract No. 2 In Ins Deed of C. Walter Ocker and Borgia S. Ocker, his wife, to Edward J,
Lehman dated July 6, 1038, and recorded In the Office of the Recorder or Deeds of
Cumberland County, Penneytvonla, In Deed Book')(', Volume 11, Page 227; and (2) the
tract of land conveyed by Donald T. McCullough and Helen G. McCullough, his wile, to
Presbyterian Homes, Inc., by Dead dated September 30. 1076, end rocorded In the
Office aforesaid M Dead Book '%F. Volume 28, Page 78. L a,,
BEING the same promises which Donald T. McCullough and Helen R. McCullough,
husband and wife, and Donald A. McCullough and Vicky C. McCuhough, husband and
wife granted and conveyed unto Donald T. McCullough and Helen G. McCullough,
husband and wife, and Donald A. McCullough and Vicky C. McCullough, husband and
wile, by deed dated May 16, 1901, and recorded In pro office of the Recorder of Deeds
for Cumbedand County In Deed Book C. Vol: 36, P.66/ on May 15, 1001, gold Helen
0. McCullough died on December 2, 1996, and ilia to her Interest In the property vested
in her surviving spouse, Donald T. McCullough, by right of survivorship.
UNDER AND SUBJECT to any and all existing covenants, restrictions, easements, and
conditions of record, It any.
TOGETHER with 28 and singular the buildings, improvements, ways, woods, waters,
watercourses, rights, liberties, privileges, heroditements, and appurtenances whatsoever
Mrounto belonging or in anywise appertaining, and the reversions and remainders, rants,
Issues, and profile thereof; and also 08 the estate. right, title, Interest, use, trust, property,
possession, claim, and demand whatsoever of him. the said Donald T. McCullough, at and
immediately before the time of his decoase, in law, equity, or otherwise. howsoever, of, In, to, or
out of the same.
TO HAVE AND TO HOLD the said premises, together with the heredhaments and
premises hereby granted and retgased, or mentioned and Intended so to be, with the
appurtenances, unto the said Grantee, his heirs and Designs, to and for the only proper use and
behooi of the said Grantee, his heirs and assigns, forever.
AND the said Grantor, for himself, and his heirs, executors, and administrators. does
covenant, promise, and agree, to and with the said Grantee, his helm and sasigns, and by
these presents, that he, the said Grantor, has not done, commltled, or knowingly, or willingly
suffered to he dare or committed, any act, matter, or thing whatsoever whereby IM premises
hereby granted, or any part thereof, Is, are, shah, or may be Impeached, charyad, or
Incumbared, in title, charge, estate, or otherwise howsoever,
•3•
BOOK 215 PAGE 264
TAX PARCEL NO. The tax parcel number for the above-described lmol Is as follows; 48&08- k
0691-010. ..r"
TAX EXEMPT - This transfer is being made pursuant to the less; or a testamentary instrument
end Is, therefore, exempt from malty transfer taxes pumuent to Ponnsylvenle Realty Transfer
Tax Act Section 1102.0.3(7) and Regulation SeMn 91.169(a). This transfer is also a bamsfsr
from father to son and daughteMn-law and Is therefore exempt from malty transfer taxes.
IF THIS INSTRUMENT is executed by more than one person or corporation or troth as
Carantcr, the promises and representations of each shalt be joint and several. Whenarm used,
the singular number shall Include the plural, the plural the singular, the use of any Candor shell
include all genders, and the words `Grantor- anal -Grantee' wtmrwar used, shag include their
heirs, executors, administrators, sucoessom, or assigns.
IN WITNESS WHEREOF, the said Donald A. McCullough and Denny H. McCullough,
Executors of the Estate of Donald T. Mccullouh, have hereunto not their hands and saals the
day and year first above written.
Signed, tested and dellyered ESTATE OF DONALD T. MCCULLOUGH
In thee press of.
,? n
U J _ 8y: Jh-^-4?'dYP (•...iCr,w (SEAL)
Donald A. McCullough, Exaah or
Den H. McCullough, outor
Certlffcsto Of Residence
I hereby Willy that the precise residence of the Grant" herein is,
205 Gmenrbgq Lane
Neville, PA 17241
Ago tit or Oramea
4.
800K 215 fur 265
?? ,,b??
?xh
THIS AGREEMENT, made this 3 *-*+;day of 1991, by
and between DONALD T. MaCULLOUGH and HELEN G. MOCULLOUGH, husband
and wife, and DONALD A. McCULLOUGH and 9ICZY O. mcamLOUGa, husband
and wife, parties of the first part, hereinafter called Grantors
and 4RESBYTERIAN HOMES, INCORPORATED, a Pennsylvania nonprofit
corporation, party of the second part, hereinafter called Grantee.
W I T N E 8 B E T R:
The parties hereto, intending to be legally bound, promise,
declare and agree as follows:
1. Grantors shall sell and convey to Grantee and Grantee
m c .,
shall receive all of that certain lot or parcel of land sityategiR
?C*3.i mOi?
West Pennsboro Township, Cumberland County, Pennsy v raj
x
containing an area of 1.383 acres, "more or less, which is mcrr
re c-? 0 1
fully identified in the description set forth in Exhibit A aaacg
m m
hereto and made a part hereof by reference (the "premisesynk o
the consideration of One ($1.00) Dollar and other good and valuable
consideration, which Grantee agrees to pay to Grantors upon the
signing and execution of this Agreement.
2. Grantors shall make, execute and deliver to Grantee a
good and sufficient special warranty deed for the proper
conveyancing of the premises in fee simple, free and clear of all
liens and encumbrances, except for recorded restrictions, utility
a
easements and other items of record in the Cumberland County Court
House which do not unreasonably interfere with the use of the
premises.
3. Possession of the premises shall be delivered at
settlement. Settlement shall occur within a reasonable time after
execution of this Agreement.
4. in further consideration of the conveyance from Grantors
to Grantee, Grantee hereby grants and conveys to Donald A. and
Vicky C. McCullough, husband and wife, an easement and right-of-
way upon and across a 504 wide road of Grantee, known as "Green
Ridge Lane," providing access to Pennsylvania Route No. 233, as set
forth and described in a subdivision Plan, a true and correct copy
of which is marked Exhibit B, attached hereto and made a part
hereof by reference. The easement and right-of-way granted herein
shall be used only for the purpose of ingress and egress to the
private residence of Donald A. and Vicky C. McCullough.
2 y
ko
5. The easement and right-of-way granted herein shall be
perpetual or for so long as it is used for ingress and egress to
the private residence of Donald A., and Vicky C. McCullough and
their children and lineal descendants. In the event Donald A. and
Vicky C. McCullough and/or their children and lineal descendants
decide to sell or otherwise dispose of the residence for which the
easement and right-of-way has been granted, Grantors hereby grant
to Grantee, its successors and assigns, a right-of-first refusal
to purchase the residence property for which the above granted
easement and right-of-way was given, for its fair market value
determined by averaging two appraisals made by qualified appraisers
employed by each party. Grantee agrees to warrant and forever
defend the above described easement and right-of-way given to
Donald A. and Vicky C. McCullough against every person whomsoever
lawfully claiming or to claim the same or any part thereof.
Notwithstanding any of the foregoing, the easement and right-of-
way granted herein shall terminate when or at such time as the
purposes for which it was granted cease to exist, are abandoned or
become impossible of performance.
6. Possession of the premises shall be delivered and use of
the easement and right-of-way shall commence at the time of
settlement.
3
10
7. Grantors agree to pay all real estate taxes and any and
all municipal charges that may be assessed against the premises
until the time of settlement. Grantors and Grantee agree that any
and all realty transfer taxes shall be borne equally by the
parties.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals the day and year first above written.
WITNESSES:
GRANTORS:
We,
DONALD T. MCCULLOUG$ A4 LT.)
/ , lit 14, zv-'? (SEAL)
HELEN G. XbCULLOUGHrl-
(SEAL).
DONALD A. McC?ULLOU
VICKY . MaCIILLOIIGH
GRANTEE:
ATTEST: PRESBYTERIAN HOMES, INC.
Secretary ?• ALBERT L. SCHARTNER, President
(SEAL)
4
EXHIBIT A
All the following described ~tract of land situate in west
Pennsboro Township, Cumberland County; Pennsylvania, bounded and
described as follows: '
BEGINNING at an existing iron pin on the southern line of a
fifty foot wide access road, known as Green Ridge Lane, said
existing iron pin being a corner common to land of Presbyterian
Homes, Inc. and land of Donald T. and Helen G. McCullough and
Donald A. and Vicky C. McCullough; thence from said point of
beginning by other lands of Donald T. and Helen G. McCullough and
Donald A. and Vicky C. McCullough S 15° 33' 27" W 524.52' to an
existing iron pin at land of Presbyterian Homes, Inc.; thence by
land of Presbyterian Homes, Inc. N 31° 18' 51" W 125.74' to an
existing iron pin; thence by the same N 35° 35' 44" W 181.38' to
an existing iron pin; thence continuing by the same N 51° 12' 57"
E 399.74' to an existing iron pin, the point of beginning.
containing 1.383 Acrest as shown on a plat prepared by Dennis E.
Black Engineering, Inc., dated 1013191, Drawing Number 91-75 and
entitled "A Land Subdivision For Donald T. & Helen G. McCullough
and Donald A. & Vicky C. McCullough in West Pennsboro Township,
Cumberland County, PA."
BEING a portion of Tract No 1 of the properties which Donald
T. McCullough and Helen G. McCullough, husband and wife, by Deed
dated April 20, 1982, and recorded in the office of the Recorder
of Deeds of Cumberland County, Pennsylvania, in Deed Book "T,"
Volume 29, Page 157, granted and conveyed unto Donald T. McCullough
and Helen G. McCullough, his wife and Donald A. McCullough and
Vicky C. McCullough, his wife, Grantors herein.
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1
COMMONWEALTH OF PENNSYLVANIA
SS..
COUNTY OF CUMBERLAND
.v :L
On this, the day of 199x, before
me, a Notary Public,-the undersigned offige?r, personally appeared
ALBERT L. sCHARTNER and CAROLINE CHRISTINE, known to me to be the
persons whose names are subscribed to the within instrument, and
acknowledged that they executed the same for the purposes therein
contained.
IN WITNEss WHEREOF, I have hereunto set my hand and official
seal.
No ark ry Public
7t"??rdlifiiap.'•jp1Y10? ? ?"..,.i
COMMONWEALTH OF PENNSYLVANIA
SS..
COUNTY OF CUMBERLAND t
On this, the day of 1991, before
me, a Notary Public, the undersigned officer, personally appeared
DONALD T. McCULLOII611 and HELEN Q. MOCULLOUGH, his wife, and DONALD
A. MCCULLOUGH and VICKY C. MCCULLOUGH, his wife, known to me to be
the persons whose names are subscribed to the within instrument,
and acknowledged that they executed the same for the purposes
therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
4Z2214XO-
NotAt'ry Public
Nofa.iu --cal
Conde J. Tritt, Ncisry Public
Cd!isle, CUTborlAW COUnty
My Commisdon Expires Oct. L, 5982
I *? ??- C<
? ??,?htra.n
=AWn
MADE THE " day of April in the year two thousand five (2005),
DETii'BEN DONALD A. MCCUUA)UGH AND VICKY C. McCULLOUGH,
husband stud wife, of the Commonwealth of Pennsylvania hereinafter
called Grantors,
AND HAPItY H. WXI ,CR., adult individual, of the Commonwealth of H
Pennsylvania, herobnattor called Grantee,
W[TNISSSETff, that in consideration of the sum of Two Addlion Five hundred co
Thirty Two Thousand and no1100 ($2,S32,000,00) Dollars, the receipt whereof is hereby r
acknowledged, the said Grantors do hereby grant and convey unto the said Gramoe, bus
heirs and assigns;
ALL 'T'HOSE CERTAIN tracts or parcels of land and premises situate, ly.n&
and being in the Township, of West Pennsboro, County of Cumberland and
Commonwealth of Pennsylvania, more particularly described as follows:
TRACT NO, I
8P,GINHIING at a rail monument in the South line of the Pennsylvania Railroad
company right of way liner at the distance of 6,78 feet Southwardly from a point in and
measured at right angles to the line established as the center line of said Railroad
Company's railroad, Newville - Oakville Revision, said Place of Beginning being also at
the distance of 87.2 feet measured Fastwardly along said Southerly line of said tight of
way line $om another point therein at the Easterly and of the Southerly abutment of
highway Bridge No. 4.29; extending thence fmm said beginning point South 36 degrees
28 minutes East, partly by land of said Railroad Company and partly by land now or
formerly of A. D. Laughlh crossing the Northeasterly line of a Public Road, and partly
along the middle line thereof 1421.5 feet to a railroad spike at a corner of land now or
formerly of Cyrus McCullough; thence South 53 degrees 50 minutes West, by said last
mentioned land, crossirg the Southwesterly line of said Public Road, 1512.5 feet to a post
at a, comer of land now or formerly of Ellen A. Parker; thence North 45 degrees 6
minutes West, partly by said last mentioned land and partly by other land of the
Pennsylvania Railroad Company, crossing Big Spring, 2354.2 feet to a point at or near
the Southwesterly corner of Sig Spring Bridge No. 29.2; thence the ibllowing three
courses and distances by lend of said Railroad Company: (1) North 76 degrees 27
m9rartes East, recrossing said Big Spring, 97 feet to a rail monument distant 105 feet
Southwardly from a point in and measured radially to the said center line of said railroad;
(2) North 76 degrees 27 minutes East 595.4 feet to a rail monument distant 95 fiat
Southwardly from a point in and measured radially to the said center line of said railroad;
sou WO FAA707
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m
and (3) North 81 degrees 14 minutes Past, recrossing said Public Road, 1386.9 loot to the
Place of BEGMNWG.
CONTALMG 71.734 Acres more or less.
LESS Ho'WEVM more or less 1.383 acres less aereago to Presbyterian Homes,
Inc., by deed dated February 27, 19M and recorded in the Office of the Recorder of
Deeds in and for Cumberland County, Ponnsylvania, in Dead Book V, Volume 35, Page
466.
UNDER AND S1I>1J1ECT to a recorded Agreement dated December 30, 1991, by
and between Donald T, McCullough and Helen 0. McCullough and Donald A.
McCullough and Vicky C. McCullough and Presbyterian Homes, Inc., providing the
Presbyterian Homes, Inc. with a right of first refitsal to purchase Cluntors'_residence,
which is a oart of Tract No. 1, recorded October 4,_ 1994, in the 012oo of the Recorder of
Deena m anti for Cumberland County, Pennsylvania, m Miscoaemous Book 483, No
513.
UNDER AND SUDMCT as to so much of the above described promises as is
included within the lines of the Public Road above mentioned, to the use thereof by all
parties lawfully entitled thereto.
UCBDER AND SUBJECT provided always and this conveyance is made on
condition that neither the Grentors, nor their heirs and assigns; nor the Pennsylvania
Rallroad Company shall be liable or obliged to construct or maintala any fence between
the above described tracts or parcels of land and land of the said Railroad Company
adjoining the same on the Southeast and Northwest; or be liable or obliged to pay for any
of the cost or expense of constructing or maintaining such a fierce or any pan thereof, or
be liable for any damage that may result by reason of the non-wdstenco or such a fence;
EXCEPTING THEREFROM, however: (1) That portion of the above tract
designated as Tract No. 2 in the deed of C. Walter Acker and Bertha Si Acker, his wife,
to Edward 1, Lehman dated July 6, 1938, and recorded In the Office of the Recorder of
Deeda for Cumberland County in Deed Book X, Volume I), Page 227; and (2) The tract
of land conveyed by Donald T. McCullough and Haler G. McCullough, his wife, to
Presbyterian Homes, by deed dated September 30, 1976, and recorded in the Office
aforesaid in Deed Book V, Volume 26, Page 78.
UNDER AND SUBJECT to any existing covenants, easements, encroachments,
conditions, restrictions, and agreements affecting the property.
BEING the same promises which Donald T. McCullough and Helen 0.
McCullough, by Deed dated April 20, 1982, and recorded April 20, 1982, in the Office of
the Recorder of Deeds in and for Cumbaland County in Record Book T, Volume 29,
Page 157, conveyed equal one-half (112) Interests to Donald T. McCullough and Helen G,
BOOK 1?68 PABE17%
McCullough, his wife and Donald A. McCullough end 'Vicky C. McCullough, Grantors
herein. Also being the some premises which Donald A. McCullough and Denny H,
McCullough, Executors of the Estate of Donald T. McCullough conveyed the remaining
one-half (1/2) interest by deed dated January 11, 2000 and recorded January 21, 2000, in
the Office of the Recorder of Deals in and for Cumberland County, Pennsylvania, in
Deed Book 215, Pap 262, in Donald A. McCullough and Vicky C, McCullougb thereby,
vesting one hundred percent fee simple We in Grantors heroin.
W ali.li?`L 1
BEGINNING at a point, a comer of land now or for uierly of Bertha Ocher and
the tight of way of the Pennsylvania Railroad Company; thence along the right of way of
said Railroad Company, North 86 degrees 39 minutes East 1511 feet to a point; thence by
the same, North 86 degrees 29 minutes East 1710.3 feet to a post in line of land now or
formerly of Robert McCachran; thence by said land, South 38 degrees 59 minutes East
974.7 feet to a post in line of land now or formerly of Hugh K. McCullough; thence by
said land, South 65 degrees 12 minutes West 2109.75 feet to a white oak; thence by the
same, South 55 degrees 57 minutes West 789.2 feet to a point in the State Highway
leading to Gettysburg, a comer of land now or fotmerly of Hugh K, WArIlough; thence
along said land and the approximate center of said State Highway, North 34 degrees 53
tulrtutes West 2027.1 feet to a point, comer of land now or formerly of Bertha Ocher;
thence along said land, North 55 degrees 20 minutes East 18.5 feet to a point; thence by
the same, North 27 degrees 55 minutes West 2463 feet to the Place of BEGINNING,
CONTAINING more or less 113.26 Acres.
EXCIEPTING THEREFROM, however, those certain tracts of land conveyed
by Donald T. McCullough and Helen e, McCullough, his wifb, as follows; (1) To Melvin
Mixell and Ethel R. Mixell, his wife by deed dated December 2, 1946, and recorded in
the Office aforesaid in Deed Book L Vol. 13, Page 576; (2) To Melvin Mixell and Ethel
R. Mixeli, his wife, by deed May 1, 1947, and recorded in the Office aforesaid in Deed
Book O, Vol. 13, Page 6; (3) To Sylvester A. Mbiell and Kathleen C. Mixed, his wife, by
deed dated December 7, 1946, and recorded in the Office aforesald in Deed Book 1C, Vol.
13, Page 84; (4) To Ralph E. Mohler and Dorothy H, Mohler, his wife, by deed dated
November 18, 1952, and recorded In the Office in Deed Book D, Vol. 15, Page 289; and
(5) To Pennsylvania Power & Light Company by deed dated Deoember 14, 1978, and
recorded in the Office aforesaid in Deed Book F, Vol. 28, Page 872.
TINDER AND SUBJECT to any existing covenants, easements, encroachments,
conditions, restrictions, and agreements affecting the property.
BOOK 268 PACE17M
TB&C NO: 3
BEGDnQNG at an iron pin in fine of land now or fbrmerly of W,W. Fickes at
the Northwest corner of land now or fbrmorly of H.K McCullough; thence by said land
now or formerly, of W.W. Fickes, North 53 degrees West, 30.S perches to an iron pin;
thence by land now or formerly of Presbyterian Homes of Central Pennsylvania, North 54
degrees 15 minutes East 62.7 perches to & point; thence by the same, North 53 degrees 20
minutes Bast 21.7 parches to an iron pin; thence by the sarne, North 26 dogma 30
mimxtes West 203 perches; thence by the same, North 14 degrees West 54.7 perches to
an iron pin; theme by the same, North 32 degrees 10 minutes West 7.6 perches to a point;
thence by the same, North 38 degrees West 11 perches to an iron pin; thence by the same,
North 49 degrees 45 mimrtes East 24.1 perches to a point; thence South 38 degrees East
78 perches to a point; thence by land now or farmerly of H.K. McCullough, South 38
degrees 45 minutes East 30.5 perches to an iron pin; thence by the same; South 53
degrees 45 tninutes West 13.6 perches to a point; thence by the same, South 52.dogrees
15 minutes West 37,5 perches to an bon pin; thence by the same, south 38 degrees 40
minutes East 12 perches to an iron pin; thence by the same, South 54 degrees 30 minutes
West 77.2 perches to the Place of BEGINNING.
1TNDLR AND SUBJECT to any existing covenants, easements, encroachments,
conditions, restrictions, and agreements affecting the property.
BEING the same premises which Donald T. McCullough and Helen G.
McCullough, by Deed dated April 70. 1982, and recorded April 20, 1982, in the Office of
the Recorder of Deeds in and for Cumberland County in Record Book T, Volume 29,
Page 157, conveyed equal one=half(1/2) interests to Donald T. McCullough and Helen G.
McCullough, his wife and Donald A. McCullough and Vicky C. McCullough, Granws
herein. Also being the same premises, which Donald A. McCullough and Denny II.
McCullough, Executors of the Estate of Donald T. McCullough conveyed the remaining
one-half (1/2) interest by deed dated January 11, 2000 and recorded January 21, 2000, in
the Office of the Recorder of Deeds in and for Cumberland Courdy, Pennsylvania, in
Deed Book 215, Page 256, in Donald A. McCullough and Vicky C. McCullough thereby
westing one hundred percent fee simple title in Grantors harein.
"TRACT W- 4
BEGINNING at an existing post at corner of the within descnlxd Lot No. 2 and
lands now or formerly of Donald A McCullough and in line of lands now or formerly of
Kurt R Schneider, thence along line of lands of McCullough, North forty (40) degrees
four (04) minutes thirty (30) seconds West, nine hundred severity-two and thirty-nine
hundredths (972.39) feet to a point in liac of lands now or formerly of PP&L, Inc.; thence
along line of lands now or formerly of PP&L, Inc., North eighty-four (84) degrees Arty-
six (46) minutes zero (00) seconds )vast, eighty-three hundredths (0.83) fleet to an existing
rail monument; thence continuing along One of lands of PP&L, Inc., North eighty-four
(84) degrees fifty-six (56) minutes zero (00) seconds Bast, one thousand two hundred
eighteen and one hundredths (I218,01) feet to a act iron pin at common corner of Lot No.
600x 268 man o
2 & 3 on the above referred to subdivision Alan; thence along common boundary be of
Lot No. 2m 3. South fifteen 05) degrees tmrty-five (35) minutes thirty-five (35) seconds
East, one thousand sixteen and sixty hundredths (1,016.60) foot to an existing post at
confer of Lot No. 4, thence along common boundary line of Lot No. 4, South seventy-
three (73) degrees seven (07) minutes twenty-three (23) seconds West, four hundred
fifty-two and tour hundredths (452.04) feet to a set iron pin in line of land now or
formerly of Kurt P. Schneider, thence along line of land now or formerly of Schneider.
North nineteen (19) degrees twelve (12) minutes forty-one (41) seconds West, fbur
hundred twenty-six and fiva hundredths (426.05) feet to an existing post; thence
continuing by same. South sixty-three (63) degrees thirty-two. (32) minutes twenty-one
(21) seconds West, three hundred twenty-two and thirty-three hundredths (322.33) feat to
an existing post, the point and place of BEGDMWG.
CONTAMING 20.7905 acres, more or less in accordance with the above
referred to subdivision plan.
MING a pan of Parcel No. I in Cumberland County Deed Book & Volume 36,
Page 408.
UNDER AND SUBJECT to building setback lines and other notations and
conditions as shown on the above refttred to subdivision plan.
BEING the same.premises conveyed by Maralee G. Rook by her Attorney in thct,
Joseph S. Rook, Jr, and Joseph S. Rook,' Jr. Pxecutor of The Estate of Joseph S. Rook,
Sr., by Deed dated December 14, 1999, and recorded December 14, 1999; in the Office of
the Recorder of Deeds in and for Cumberland County In Record Book 213, Page 136, to
Donald A. McCullough and Vicky C. McCullough, Grantors herein.
UNDER AND SUBJECT to any existing covenants, easements, encroachments,
conditions, restrictions, and agreements affecting the property.
AND the said Grantors hereby covenant and agree that they will warrant specially
the property hereby conveyed.
coos 265 rACEOU
IN i17V NE,9S MMUOF, said Grantors, has hereunto set their hands and seals
the day and year first above written.
DONALIa A. MC OUCH
J
CKV C. MCCUI UGH
COMMONWEALTH OF PENNSYLVANIA )
ss.
hiCUMB? F?XI.AAIY7 )
COUNTOn YtOFs, the day
of April, 2005, before me, the undersigned officer,
personally appeared Donald A. McCullough and Vicky C. McCudeugb; bgsband and
wife, known to me (or sstisfactorily proven) to be the persons whose names are
subscribed to the within instrument, and acknowledged that they muted same for the
purposes therein contained.
IN WTINESS WHER]"sOF, T heramto seylrry han6nd,o*j; seal.
AL
J?tlgYNIn? 4 ME1 pop
Msrkr. ??n?M' d
Baux 266 PABEM2
Signed, Se" and Ds hwW
I do hereby certify that
the within named Grantee is; _
and
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office address of
r?04
SALZMANN HUGims, PC
95 Alexander Spring Road
Carlhic, PA 17013
1,Certify this to be recorded
in Cumberland County PA
Recorder of Deeds
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PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff,
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
No. ???oS-?kOD CA-Lj
PRAECIPE FOR LIS PENDENS
TO THE PROTHONOTARY:
Please index the above-captioned action as a lis pendens against the following real
property:
BEGINNING at a rail monument in the South line of the Pennsylvania Railroad
Company right of way line, at the distance of 6.78 feet Southwardly from a point
in and measured at right angles to the line established as the center line of said
Railroad Company's railroad, Newville - Oakville Revision, said Place of
Beginning being also at the distance of 87.2 feet measured Eastwardly along
said Southerly line of said right of way line from another point therein at the
Easterly end of the Southerly abutment of Highway Bridge No. 0.29; extending
thence from said beginning point South 36 degrees 28 minutes East, partly by
land of said Railroad Company and partly by land now or formerly of A.D.
Laughlin, crossing the Northeasterly line of a Public Road, and partly along the
middle line thereof, 1421.5 feet to a railroad spike at a corner of land now or
formerly of Cyrus McCullough, thence south 53 degrees 50 minutes West, by
said last mentioned land, crossing the Southwesterly line of said Public Road,
1512.5 feet to a post at a corner of land now or formerly of Ellen A. Parker;
thence North 45 degrees 6 minutes West, partly by said last mentioned land
and partly by other land of the Pennsylvania Railroad Company, crossing Big
Spring, 2354.2 feet to a point at or near the Southwesterly corner of Big Spring
Bridge No. 29.2; thence the following three courses and distances by land of
said Railroad Company; (1) North 76 degrees 27 minutes East, recrossing said
Big Spring, 97 feet to a rail monument distant 105 feet Southwardly from a point
in and measured radially to the said center line of said railroad; (2) North 76
degrees 27 minutes East 595.4 feet to a rail monument distant 95 feet
Southwardly from a point in and measured radially to the said center line of said
railroad; and (3) North 81 degrees 14 minutes East, recrossing said Public
Road, 1386.9 feet to the Place of BEGINNING.
CONTAINING 71.734 Acres more or less.
EXCEPTING THEREFROM, however (1) that portion of the above tract
designated as Tract No. 2 in the Deed of C. Walter Ocker and Bertha S. Ocker,
his wife, to Edward J. Lehman, dated July 6, 1936, and recorded in the
Cumberland County Recorder's Office in Deed Book "X", Vol. 11, Page 227;
and (2) The tract of land conveyed by Donald T. McCullough and Helen G.
McCullough, his wife, to Presbyterian Homes, Inc., by deed dated September
30, 1976 , and recorded in the office aforesaid in Deed Book V, Volume 26,
Page 78
BEING the same premises identified as Tract No. 1 in the deed dated April 5, 2005,
and recorded in Cumberland County, Pennsylvania on April 11, 2005, in Deed Book
268, Page 1707, granted and conveyed unto Harry H. Fox, Jr.
The undersigned hereby certifies that this action affects title to or other interest in the
above-described real property.
McNEES WALLACE & NURICK LLC
By /0- L . ?r ?--
Helen L. Gemmill (ID No. 60661)
Sean P. Delaney (ID No. 85996)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Presbyterian Homes, Incorporated
Dated: November 7, 2005
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PRESBYTERIAN HOMES
INCORPORATED,
Plaintiff
NO. 2005-5800
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH, husband and
wife; and HARRY H. FOX, JR.,
CIVIL ACTION -Equity
Defendants
ACCEPTANCE OF SERVICE
I accept service of the Complaint in this action on behalf of Defendants DONALD A.
MCCULLOUGH and VICKY C. MCCULLOUGH, and certify that I am authorized to do so.
P.C.
Jam s D. es, Esquire
Atto 58884
354 Alex der Spring Road
Suite 1
PA 17013
7
11__?
Date: December (0-, 2005 Attorney for Defendants Donald A. McCullough
and Vicky C. McCullough
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>,PBESjRIAL H N1ES,
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Plaintiff
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
Husband and wife, and
HARRY H. FOX JR.,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-5800
C7 o O
cn
2` n p1m
-n T
CIVIL ACTION - EQUITY ?' cY
ACCEPTANCE OF SERVICE
I accept service of the Complaint in this action on behalf of Defendant HARRY H.
FOX JR., and certify that I am authorized to do so.
Date:
Brian C enbach
SCHRACK & LINSENBACH
124 West Harrisburg Street
Dillsburg, PA 17019
(717)432-9733
Cl1
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SALZMANN HUGHES, P.C. James D. Hughes, Esquire, G. Bryan Salzmann, Esquire
354 Alexander Spring Road, Suite 1 David H. Martineau, Esquire, E. Ralph Godfrey, Esquire
Carlisle, PA 17013 Attorneys for Defendants Donald A. McCullough &
7?1Z9-6333 _ Vic C McCullough
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
DOCKET NO. 2005-5800
NOTICE TO PLEAD
TO: Presbyterian Homes, Incorporated, Plaintiff
c/o Helen L. Gemmill, Esquire
McNees, Wallace & Nurick, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service
hereof or a default judgment may be entered against you.
Dated: o?
SALZMANN HUGHES., P. .-
By ??fl
James D. Hughes, Esquire
Attorney I.D. No. 58884
G. Bryan Salzmann, Esquire
Attorney I.D. No. 61935
E. Ralph Godfrey, Esquire
Attorney I.D. No. 77052
David H. Martineau, Esquire
Attorney I.D. No. 84127
354 Alexander Spring Road, Suite 1
Carlisle, PA 17013
(717) 249-6333
Attorneys for Defendant
P
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
DOCKET NO. 2005-5800
DEFENDANTS DONALD A. MCCULLOUGH AND VICKY C. MCCULLOUGH'S
ANSWER WITH NEW MATTE TO PLAINTIFF'S COMPLAINT
Defendants, Donald A. McCullough and Vicky C. McCullough, by and through their attorneys,
Salzmann Hughes, P.C. answer the corresponding numbered paragraphs of Plaintiff's Complaint as
follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Paragraph 5 refers to a written public document which. writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the averments
of this paragraph are admitted to the extent that they accurately reflect the public document and denied
to the extent that they do not accurately reflect the public document.
6. Paragraph 6 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the averments of
this paragraph are admitted to the extent that they accurately reflect the public document and denied to
the extent that they do not accurately reflect the public document.
7. Paragraph 7 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the averments
of this paragraph are admitted to the extent that they accurately reflect the public document and denied
to the extent that they do not accurately reflect the public document.
8. Paragraph 8 refers to written public documents which writings speak for themselves,
therefore no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extent that they accurately reflect the public documents
and denied to the extent that they do not accurately reflect the public documents.
9. Paragraph 9 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the averments
of this paragraph are admitted to the extent that they accurately reflect the public document and denied
to the extent that they do not accurately reflect the public document.
10. Paragraph 10 refers to written public documents which writings speaks for themselves,
therefore no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extent that they accurately reflect the public documents
and denied to the extent that they do not accurately reflect the public documents.
11. Admitted in part and denied in part. It is admitted that Helen G. McCullough died on
December 2, 1996. All other allegations contained in Paragraph 11 are legal conclusions to which no
responsive pleading is required. Therefore such allegations are denied and strict thereof is required at
trial.
12. Denied. By way of further answer, Donald T. McCullough died on March 24, 1998.
13. Paragraph 13 refers to a written public document which writing speaks for itself,
therefore no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extent that they accurately reflect the public document
and denied to the extent that they do not accurately reflect the public document.
14. Paragraph 14 refers to a written public document which writing speaks for itself,
therefore no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extent that they accurately reflect the public document
and denied to the extent that they do not accurately reflect the public document.
15. Paragraph 15 refers to a written public document which writing speaks for itself,
therefore no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extent that they accurately reflect the public document
and denied to the extent that they do not accurately reflect the public document. By way of further
answer, the easement granted was limited to serve only "the purpose of ingress and egress to the private
residence of Donald A. and Vicky C. McCullough." and does not serve the remainder of the property
abutting Green Ridge Lane.
16. Admitted with qualifications. The Agreement purports to grant PHI a right of first
refusal which is specifically limited to "the residence property for which the above granted easement
and right-of-way was given."
17. Paragraph 17 refers to a written public document which writing speaks for itself,
therefore no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extent that they accurately reflect the public document
and denied to the extent that they do not accurately reflect the public document.
18. Admitted with qualifications. The private residence of Donald A. and Vicky C.
McCullough (the "McCullough's") is located upon Tract 1 of the deeds dated May 15, 1991 and April
20, 1982, but is only a portion of such tract and does not incorporate the entire tract.
19. Denied. Paragraph 19 is a conclusion to which no responsive pleading is required. To
the extent that a responsive pleading is required, Paragraph 19 is denied and because the "residence
property" includes only the McCullough's private residence and the surrounding real property
maintained for residential use, such real property being approximately 4.4 acres.
20. Admitted.
21. Paragraph 21 refers to written public documents which writings speak for themselves,
therefore no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extent that they accurately reflect the public documents
and denied to the extent that they do not accurately reflect the public documents.
22. Paragraph 22 alleges public information. Paragraph 22 is admitted to the extent that it
accurately reflects the public records and is denied to the extent that is conflicts with the public records.
23. Denied. Paragraph 23 states a legal conclusion to which no responsive pleading is
required. Therefore, the same is denied and strict proof is required.
24. Admitted in part and denied in part. It is admitted the McCullough's decided to and did
in fact sell Tract No. 1, excepting the McCullough's residential property, to Defendant Harry H. Fox, Jr.
It is denied that that the "residence property" is known as Tract No. 1 and that the McCullough's sold
the residence property to Harry H. Fox, Jr.
25. Admitted.
26. Admitted. By way of further answer, it is expressly denied that the McCullough's had
any obligation to offer only Tract No. 1 to Plaintiff. The McCullough's did offer and were only
obligated to offer to sell to Plaintiff only the residence property consisting of approximately 4.4 acres,
which offer Plaintiff has not accepted.
27. Admitted in part and denied in part. It is admitted that Plaintiff declined to purchase all
four tracts of land offered to Plaintiff. The McCullough's are without knowledge sufficient to admit of
deny an allegation setting for the Plaintiff's willingness or unwillingness to take any specific actions.
Therefore, such portions of Paragraph 27 are denied and strict proof is required.
28. Denied. By way of further answer, Defendants have offered to sell the residence property
to Plaintiff, containing the McCullough's private residence and the surrounding real property consisting
of approximately 4.4 acres, which offer Plaintiff has not accepted.
29. Admitted in part and denied in part. Upon information and belief, it is admitted that
Plaintiff obtained an appraisal of Tract No. 1. It is denied that the acquisition of such appraisal was in
accordance with the term of the Agreement.
30. Denied. Paragraph 30 states a conclusion of law to which no responsive pleading is
required. To the extent that a responsive pleading is required, Paragraph 30 is denied in that the
Agreement does not require the McCullough's to obtain an appraisal of Tract No. 1.
31. Denied as stated. It is admitted that the McCullough''s have not conveyed the residence
property to Plaintiff. Paragraph 31 is denied in so much as Plaintiff's allegation that the McCullough's
"failed to convey" suggests some obligation on the McCullough's part to do so. The Defendants have
offered to sell the residence property to Plaintiff which offer Plaintiff has not accepted. Therefore, the
McCullough's have no obligation to convey the residence property to Plaintiff.
32. Paragraph 32 refers to a written public document which writing speaks for itself,
therefore no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extent that they accurately reflect the public document
and denied to the extent that they do not accurately reflect the public document.
33. Paragraph 33 alleges public information. Paragraph 33 is admitted to the extent that it
accurately reflects the public records and is denied to the extent that is conflicts with the public records.
34. Denied. After reasonable investigation, the Answering Defendants are without
knowledge sufficient to admit or deny the allegations contained in Paragraph 34. Such allegations are
therefore denied and strict proof is required.
35. Denied. Paragraph 35 contains conclusion of law to which no responsive pleading is
required. To the extent that a responsive pleading is required, Paragraph 35 is denied because the
McCullough's had no obligation to offer to sell Tract No. 1 to Plaintiff, obtain an appraisal on Tract
No. 1 or to refrain from conveying Tract No. 1 to Defendant Fox.
36. Denied. The Answering Defendants are without knowledge sufficient to admit of deny
an allegation setting forth Plaintiffs desires. Therefore, Paragraph 36 is denied and strict proof is
required.
COUNT I - SPECIFIC PERFOP24ANCE
37. The McCullough's answers to paragraphs 1-36 are incorporated herein as if set forth in
full.
38. Denied. Paragraph 38 contains a conclusion to which no responsive pleading is required.
To the extent that a responsive pleading is required. To the extent that a responsive pleading is required,
Paragraph 40 is denied for the reasons set forth above in this Answer.
39. Denied. The Answering Defendants are without knowledge sufficient to admit of deny
an allegation setting forth Plaintiff's state of readiness and willingness to take a specific action.
Therefore, Paragraph 39 is denied and strict proof is required.
40. Denied. Paragraph 40 contains a conclusion of law to which no responsive pleading is
required. To the extent that a responsive pleading is required, Paragraph 40 is denied for the reasons set
forth above in this Answer.
41. Denied. Paragraph 41 contains a legal conclusion to which no responsive pleading is
required. Therefore Paragraph 41 is denied and strict proof is required.
42. Denied. Paragraph 42 contains a legal conclusion to which no responsive pleading is
required. Therefore, Paragraph 42 is denied and strict proof is required. By way of further answer,
Plaintiff is not entitled to specific performance because Defendants have already offered to sell Plaintiff
the residence property, which offer Plaintiff has failed to accept.
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough respectfully
request this honorable Court to enter an Order in favor of Defendants and against Plaintiff dismissing
Plaintiffs Complaint, with prejudice.
DEFENDANTS DONALD A. MCCULLOUGH AND VICKY C. MCCULLOUGH'S
NEW MATTER TO PLAINTIFF'S COMPLAINT
43. Defendants Donald A. McCullough and Vicky C. McCullough's answers to Paragraphs
1-42 of Plaintiff's Complaint are incorporated herein as if set forth in full.
44. At the time Green Ridge Lane was separated from the interior of Tract No. 1 (as defined
in Plaintiff's Complaint) in 1976, West Pennsboro Township had a Subdivision Ordinance.
45. The separation of Green Ridge Lane from the interior of Tract No. 1 constituted a
subdivision under the West Pennsboro Township Subdivision Ordinance in effect at the time of the
separation.
46. The three portions of what had been Tract No. 1, including Green Ridge Lane and the
two remnants now separated by Green Ridge Lane are separate and distinct parcels of real property.
47. The McCullough's private residence is located in the southwest corner of the lot on the
north side of Green Ridge Lane, at the intersection of Green Ridge :Lane and property currently owned
by Plaintiff for the operation of Green Ridge Village (the "Private Residence").
48. No portion of the Private Residence has ever been located on the portion of what had
been Tract No. 1 on the southern side of Green Ridge Lane.
49. The Private Residence consists of a single family detached dwelling known as 200 Green
Ridge Lane, Newville, Cumberland County, Pennsylvania and the surrounding real property maintained
for residential use at all times relevant hereto, such real property being approximately 4.4 acres and as
more particularly shown on a preliminary subdivision plan of Harry Fl. Fox, Jr. dated September 8, 2004
(the "Preliminary Subdivision Plan") and labeled as Lot No. 117 thereon. A true and correct copy of the
Preliminary Subdivision Plan is attached hereto as Exhibit "A" and incorporated herein by this
reference.
50. The remainder of the lot upon which the Private Residence is located consists of property
which at all times relevant hereto has been actively used as farm land (the "Farm").
51. The easement granted under the Agreement (as defined in Plaintiffs Complaint) is
expressly limited "only for the purpose of ingress and egress to the private residence of Donald A. and
Vicky C. McCullough".
52. The easement granted under the Agreement does not serve the Farm.
53. The right of first refusal granted by the Agreement is expressly limited to "the residence
property for which the above granted easement and right-of-way was ;given".
54. The right of first refusal grants Plaintiff a right to purchase only the Private Residence.
55. In the alternative, the right of first refusal contained in the Agreement is void because it is
too vague to adequately describe the real property to which is pertains.
56. Defendants have offered to sell the Private Residence to Plaintiff.
57. Plaintiff has failed to accept Defendants' offer to sell Plaintiff the Private Residence
within a reasonable time.
58. Plaintiffs right to purchase the Private Residence is extinguished by Plaintiffs failure to
accept Defendants' offer to sell the Private Residence to Plaintiff within a reasonable time.
59. At some time prior to October 31, 2004, Plaintiff became aware of the sale of real estate,
including the Private Residence and the remainder of Tract No. 1 from the McCullough's to Harry H.
Fox, Jr.
60. At all times subsequent to October 31, 2004, Plaintiff had knowledge of the Preliminary
Subdivision Plan as filed with West Pennsboro Township by Harry H. Fox, Jr. In September 2004.
61. The Preliminary Subdivision Plan includes, inter alia, the Private Residence, the Farm,
and the remaining property that had been part of Tract No. 1 prior to the subdivision referred to in
Paragraph 44 above.
61. Harry H. Fox, Jr. expended considerable effort and resources into the Preliminary
Subdivision Plan.
63. The Preliminary Subdivision Plan was approved by West Pennsboro Township on March
15, 2005.
64. Throughout the process of gaining approval for the Preliminary Subdivision Plan,
Plaintiff failed to assert any right to exercise its right of first refusal, but rather attempted to negotiate
separate concessions from Harry H. Fox, Jr.
65. Defendants relied upon Plaintiff's actions during the process of Preliminary Subdivision
Plan approval.
66. Prior to June 28, 2005, Plaintiff did not assert any claim that it had a right to purchase the
entire tract of Tract No. 1.
67. Plaintiff permitted Harry H. Fox, Jr. to expend considerable effort and resources on the
Preliminary Subdivision Plan without asserting its claim that it had a right to purchase the entire tract of
Tract No. 1.
68. Plaintiff's claims to any right of first refusal to purchase the entire tract of Tract No. 1 are
barred by Latches.
69. Plaintiff's claims to any right of first refusal to purchase the entire tract of Tract No. 1 are
barred by estoppel.
70. Plaintiff s claims in equity are barred because Plaintiff has an adequate remedy at law.
71. Plaintiff s claims are barred by the doctrine of unclean hands.
72. Plaintiff received the 1.383 acres of land referred to in Paragraph 20 of Plaintiff's
Complaint in consideration for the easement granted in the Agreement.
73. No separate and distinct consideration was given to the McCullough's for the right of
first refusal.
74. The right of first refusal claimed by Plaintiff is void for lack of consideration.
75. In the alternative, Plaintiff's claim that it is entitled to a right of first refusal for the entire
Tract No. 1 is void for lack of adequate consideration.
76. Plaintiff s claims are barred by the applicable statute of limitations.
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough respectfully
request this honorable Court to enter an Order in favor of Defendants and against Plaintiff dismissing
Plaintiff s Complaint, with prejudice.
Dated: ? -e
Respectfully Submitted,
SALZMANN HUGHES, P.C.
By i' l ' --
James D. Hughes, Esquire
Attorney I.D. No. 58884
G. Bryan Salzmann, Esquire
Attorney I.D. No. 61935
E. Ralph Godfrey, Esquire
Attorney I.D. No. 77052
David H. Martineau, Esquire
Attorney I.D. No. 84127
354 Alexander Spring Road
Suite 1
Carlisle, PA 17013
(717) 249-6333
Attorneys for Defendants Donald A. McCullough
& Vicky C. McCullough
VERIFICATION
We, Donald A. McCullough and Vicky A. McCullough, Defendants, do hereby
verify that the facts set forth in the foregoing Defendants Donald A. McCullough and
Vicky C. McCullough' s Answer with New Matter to Plaintiffs Complaint are accurate to
the best of our knowledge, information and belief. We understand that false statements
herein contained are made subject to the penalties of IS Pa.C.S. §4904, relating to
unsworn falsifications to authorities.
Dated: December , 2005 P64?/011
Donald A. McCullough
C
Vicky C. cCullough
CERTIFICATE OF SERVICE
I, David H. Martineau, Esquire of the law firm Salzmann Hughes, P.C., hereby
certify that I served a true and exact copy of Defendants Donald A. McCullough and Vicky
C. McCullough' s Answer with New Matter to Plaintiffs Complaint with reference to the
foregoing action by First Class Mail, postage prepaid, this Z, day of January, 2006 on
the following:
Helen L. Gemmill, Esquire
McNees, Wallace & Nurick, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Bryan Linsenbach, Esquire
Schrack & Linsenbach
124 West Harrisburg Street
PO Box 310
Dillsburg, PA 17019-0310
SALZMANN HUGHES, P.C.
David H. Martineau, Esquire
-tl
1,71
S,
(_a7
PRESBYTERIAN HOMES, : IN THE COURT OF COMMON PLEAS OF
INCORPORATED, : CUMBERLAND COUNTY, PENNSYLVANIA
Defendants
NOTICE TO PLEAD
VS.
Plaintiff
: CIVIL ACTION - EQUITY
DONALD A. MCCULLOUGH and
VI CKY C. MCCULLOUGH,
husband and wife, and HARRY H.
FOX, JR., No. 05-5800
TO: Presbyterian Homes, Incorporated, Plaintiff
c/o Helen L. Genmill, Esquire
McNees, Wallace & Nurick, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17109-1166
You are hereby notified to plead to the enclosed New Matter within twenty (20) days from
SCHRACK &
LINSENBACH
service hereof or a default judgment may be entered against you.
SCHRACK & LINSENBACH LAW OFFICES
By: ? - ---__-
BRIAN C. LISSENBACH, ESQUIRE
I. D. No. (87360)
124 West Harrisburg Street
P. O. Box 310
Dillsburg, PA 17019
Telephone: 717-432-9733
Fax: 717-432-1053
Dated: / // Z. /C 6 Attorney for Defendant
PRESBYTERIAN HOMES, IN THE COURT OF COMMON PLEAS OF
INCORPORATED, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
VS.
CIVIL ACTION - EQUITY
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH, husband :
and wife, and HARRY H. FOX, JR., :
No. 05-5800
Defendants
ANSWER TO COMPLAINT AND NEW MATTER
AND NOW, comes the Defendant, HARRY H. FOX, JR., by and through his attorney,
Brian C. Linsenbach, Esquire, of SCHRACK & LINSENBACH LAW OFFICE, and files this
Answer to the Complaint, respectfully stating in support thereof the following:
The Parties
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Paragraph 5 refers to a written public document which writing speaks for itself, therefore no
responsive pleading is required. To the extent that a responsive pleading is required, the averments
of this paragraph are admitted to the extend that they accurately reflect the public document and
SCHRACK & denied to the extent that they do not accurately reflect the public document.
LINSENBACH
6. Paragraph 6 refers to a written public document which writing speaks for itself, therefore no
responsive pleading is required. To the extent that a responsive pleading is required, the averments
of this paragraph are admitted to the extend that they accurately reflect the public document and
denied to the extent that they do not accurately reflect the public document.
7. Paragraph 7 refers to a written public document which writing speaks for itself, therefore no
responsive pleading is required. To the extent that a responsive pleading is required, the averments
of this paragraph are admitted to the extend that they accurately reflect the public document and
denied to the extent that they do not accurately reflect the public document.
8. Paragraph 8 refers to a written public document which writing speaks for itself, therefore no
responsive pleading is required. To the extent that a responsive pleading is required, the averments
of this paragraph are admitted to the extend that they accurately reflect the public document and
denied to the extent that they do not accurately reflect the public document.
9. Paragraph 9 refers to a written public document which writing speaks for itself, therefore no
responsive pleading is required. To the extent that a responsive pleading is required, the averments
of this paragraph are admitted to the extend that they accurately reflect the public document and
denied to the extent that they do not accurately reflect the public document.
10. Paragraph 10 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extend that they accurately reflect the public
document and denied to the extent that they do not accurately reflect the public document.
11. Admitted in part and denied in part. It is admitted that Helen G. McCullough died on
SCIIeACK &
LINSENB.actt December 2, 1996. all other allegations contained in Paragraph I 1 are legal conclusions to which
11111111 1?
no responsive pleading is required. Therefore such allegations are denied and strict proof thereof
is required at trial.
12. Denied. By way of further answer, Donald T. McCullough died on March 24, 1998.
13. Paragraph 13 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extend that they accurately reflect the public
document and denied to the extent that they do not accurately reflect the public document.
B. The Agreement With PHI and Right of First Refusal
SCHRACK &
LINSENBACH
14. Paragraph 14 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extend that they accurately reflect the public
document and denied to the extent that they do not accurately reflect the public document. By way
of further Answer, Defendant Fox was not a party under the Agreement, and as such, has no personal
knowledge of the intent of the parties or any rights or obligations thereto.
15. Paragraph 15 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extend that they accurately reflect the public
document and denied to the extent that they do not accurately reflect the public document. By way
of further Answer, Defendant Fox was not a party under the Agreement, and as such, has no personal
knowledge of the intent of the parties or any rights or obligations thereto. Upon information and
beliefprovided to Defendant Fox by the Defendants McCulloughs, the easement granted was limited
to serve only "the purpose of ingress and egress to the private residence of Donald A. and Vicky C.
McCullough" and does not serve the remainder of the property abutting Green Ridge Lane.
SCHaACtc &
UNSENBACH
AW Oi 11(J:
16. Paragraph 16 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a. responsive pleading is required, the
averments of this paragraph are admitted to the extend that they accurately reflect the public
document and denied to the extent that they do not accurately reflect the public document. By way
of further Answer, Defendant Fox was not a party under the Agreement, and as such, has no personal
knowledge of the intent of the parties or any rights or obligations thereto.
17. Paragraph 17 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extend that they accurately reflect the public
document and denied to the extent that they do not accurately reflect the public document.
18. Denied. After reasonable investigation and belief, the answering Defendant is without
knowledge sufficient to admit or deny the allegations contained in Paragraph 18. Such allegations
are therefore denied, and strict proof is required. By way of further answer, Defendant Fox was not
a party under the Agreement, and as such, has no personal knowledge of the intent of the parties or
any rights or obligations thereto.
19. Denied. After reasonable investigation and belief, the answering Defendant is without
knowledge sufficient to admit or deny the allegations contained in Paragraph 19. Such allegations
are therefore denied, and strict proof is required. By way of further answer, Defendant Fox was not
a party under the Agreement, and as such, has no personal knowledge of the intent of the parties or
any rights or obligations thereto.
20. Admitted.
21. Paragraph 21 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extend that they accurately reflect the public
document and denied to the extent that they do not accurately reflect the public document.
22. Paragraph 22 alleges public information. Paragraph 22 is admitted to the extent that it
accurately reflects the public records and is denied to the extent that it conflicts with the public
records.
23. Denied. Paragraph 23 states a legal conclusion to which no responsive pleading is required.
Therefore, the same is denied and strict proof is required.
C. The Sale to Harry Fox
24. After reasonable investigation and belief, the answering Defendant is without knowledge
sufficient to admit or deny the allegations contained in Paragraph 24. Such allegations are therefore
denied, and strict proof is required. By way of further answer, Defendant Fox has no personal
knowledge of when Defendants McCulloughs decided to sell their land.
25. After reasonable investigation and belief, the answering Defendant is without knowledge
sufficient to admit or deny the allegations contained in Paragraph 25. Such allegations are therefore
denied, and strict proof is required. By way of further answer, Defendant Fox has no personal
SCHRACK &
LtNSENBACH knowledge of when Defendants McCulloughs decided to sell their land.
26. After reasonable investigation and belief, the answering Defendant is without knowledge
sufficient to admit or deny the allegations contained in Paragraph 26. Such allegations are therefore
denied, and strict proof is required. By way of further ariswer, Defendant Fox has no personal
knowledge of when Defendants McCulloughs decided to sell their land.
27. After reasonable investigation and belief, the answering Defendant is without knowledge
sufficient to admit or deny the allegations contained in Paragraph 27. Such allegations are therefore
denied, and strict proof is required. By way of further answer, Defendant Fox has no personal
knowledge of when Defendants McCulloughs decided to sell their land.
28. After reasonable investigation and belief, the answering Defendant is without knowledge
sufficient to admit or deny the allegations contained in Paragraph 28. Such allegations are therefore
denied, and strict proof is required. By way of further answer, Defendant Fox has no personal
knowledge of when Defendants McCulloughs decided to sell their land.
29. After reasonable investigation and belief, the answering Defendant is without knowledge
sufficient to admit or deny the allegations contained in Paragraph 19. Such allegations are therefore
DENIED, and strict proof is required. Defendant Fox has no personal knowledge of when
Defendants McCulloughs decided to sell their land.
30. Denied. Paragraph 30 states a conclusion of law to which no responsive pleading is required.
To the extent that a responsive pleading is required, Paragraph 30 is denied in that the Agreement
does not require the McCulloughs to obtain an appraisal of Tract No. 1.
SCHRACK &
LtNSENBACH
31. Denied as stated. It is admitted that the McCulloughs have not conveyed the residence
property to Plaintiff. Paragraph 31 is denied in so much as Plaintiffs allegation that the
McCulloughs "failed to convey" suggests some obligation on the McCulloughs' part to do so. The
Defendant Fox has offered to sell the residence property to Plaintiff, which offer Plaintiff has not
accepted. Therefore, the McCulloughs have no obligation to convey the residence property to
Plaintiff.
32. Paragraph 32 refers to a written public document which writing speaks for itself, therefore
no responsive pleading is required. To the extent that a responsive pleading is required, the
averments of this paragraph are admitted to the extend that they accurately reflect the public
document and denied to the extent that they do not accurately reflect the public document.
33. Paragraph 33 alleges public information. Paragraph 33 is admitted to the extent that it
accurately reflects the public records and is denied to the extent that it conflicts with the public
records.
34. Admitted in part and denied in part. It is admitted that Defendant Fox had constructive notice
of recorded documents. It is denied that Defendant Fox knew the extent of existence or any rights
or obligations of any of the parties under those documents. By, way of further answer, Defendant Fox
was under the belief that any possible right of first refusal had been extinguished.
35. Denied. Paragraph 35 contains a conclusion of law to which no responsive pleading is
required. To the extent a responsive pleading is required, Defendant Fox was not a party under the
SCHRACK &
L[NSENBACH Agreement, and as such, has no personal knowledge of the intent of the parties or any rights or
obligations thereto.
36. Denied. After reasonable investigation and belief, the answering Defendant is without
knowledge sufficient to admit or deny the allegations setting forth Plaintiffs desires. Therefore,
Paragraph 36 is denied and strict proof is required.
Count I - Specific Perfonnance
37. Fox's answers to paragraphs 1-36 are incorporated herein as if set forth in full.
38. Denied. Paragraph 38 contains a conclusion to which no responsive pleading is required.
To the extent that a responsive pleading is required, Paragraph 38 is denied for the reasons set forth
above in this answer.
39. Denied. The answering Defendant Fox is without knowledge sufficient to admit or deny an
allegation setting forth Plaintiffs state of readiness and willingness to take a specific action.
Therefore, Paragraph 39 is denied and strict proof is required.
40. Denied. Paragraph 40 contains a conclusion to which no responsive pleading is required.
To the extent that a responsive pleading is required, Paragraph 40 is denied for the reasons set forth
above in this answer.
41. Denied. Paragraph 41 contains a conclusion to which no responsive pleading is required.
Therefore, Paragraph 41 is denied and strict proof is required.
42. Denied. Paragraph 42 contains a conclusion to which no responsive pleading is required.
Therefore, Paragraph 42 is denied and strict proof is required. Plaintiff is not entitled to specific
SCNRACK &
LINSENBACH performance. Defendant Fox purchased the property from Defendants McCulloughs based upon
1 11 11 1
information and belief that any right of first refusal was terminated. Defendant Fox, acting upon that
belief, purchased the property from Defendants McCulloughs for value.
WHEREFORE, Defendant Harry H. Fox, Jr. respectfully requests this honorable Court to
enter and Order in favor of Defendant and against Plaintiff dismissing Plaintiffs Complaint, with
prejudice.
DEFENDANT HARRY H. FOX, JR., UNDER INFORMATION AND BELIEF,
INCORPORATESDEFENDANTS
DONALD A. MCCULLOUGH AND VICKY C. MCCULLOUGH'S
NEW MATTER TO PLAINTIFF'S COMPLAINT HEREIN
43. Defendant Harry H. Fox, Jr.'s, answers to Paragraphs 1 through 42 of Plaintiff s Complaint
are incorporated herein as set forth in full.
44. At the time Green Ridge Lane was separated from the interior of Tract No. 1 (as defined in
Plaintiffs Complaint) in 1976, West Pennsboro Township had a Subdivision Ordinance.
45. The separation of Green Ridge Lane from the interior of Tract No. I constituted a subdivision
under the West Pennsboro Township Subdivision Ordinance in effect at the time of the separation.
46. The three portions of what had been Tract No. 1, including Green Ridge Lane and the two
remnants now separated by Green Ridge Lane are separate and distinct parcels of real property.
47. The McCullough's private residence is located in the southwest corner of the lot on the north
side of Green Ridge Lane, at the intersection of Green Ridge Lane and property currently owned by
SCHRACK &
LINSENBACH Plaintiff for the operation of Green Ridge Village (the 'Private Residence").
I A"
48. No portion of the Private Residence has ever been located on the portion of what had been
Tract No. 1 on the southern side of Green Ridge Lane.
49. The Private Residence consists of a single family detached dwelling known as 200 Green
Ridge Lane, Newville, Cumberland County, Pennsylvania and the surrounding real property
maintained for residential use at all times relevant hereto, such real property being approximately
4.4 acres and as more particularly shown on a preliminary subdivision plan of Harry H. Fox, Jr. dated
September 8, 2004 (the "Preliminary Subdivision Plan") and labeled as Lot No. 117 thereon. A true
and correct copy of the Preliminary Subdivision Plan is attached to Defendant McCullough's New
Matter.
50. The remainder of the lot upon which the Private Residence is located consists of property
which at all times relevant hereto has been actively used as farm land (the "Farm").
51. The easement granted under the Agreement (as defined in Plaintiff s Complaint) is expressly
limited "only for the purpose of ingress and egress to the private residence of Donald A. and Vicy
C. McCullough".
52. The easement granted under the Agreement does nor serve the Farm.
53. The right of first refusal granted by the Agreement is expressly limited to "the residence
property for which the above granted easement and right-of-way was given".
54. The right of first refusal grants Plaintiff a right to purchase only the Private Residence.
55. In the alternative, the right of first refusal contained iin the Agreement is void because it is
SCHRACK &
LINSENBACN too vague to adequately describe the real property to which it pertains.
56. Defendant Fox, under information and belief avers that Defendants McCulloughs had offered
to sell the Private Residence to Plaintiff.
57. Defendant Fox, under information and belief avers that Plaintiffs failed to accept Defendants
McCulloughs' offer to sell Plaintiff the Private Residence within a reasonable time.
58. Plaintiffs right to purchase the Private Residence is extinguished by Plaintiff's failure to
accept Defendants' offer to sell the Private Residence to Plaintiff within a reasonable time.
59. At some time prior to October 31, 2004, Plaintiff became aware of the sale of real estate,
including the Private Residence and the remainder of Tract No. 1 from the McCulloughs to Harry
H. Fox, Jr.
60. At all times subsequent to October 31, 2004, Plaintiff had knowledge of the Preliminary
Subdivision Plan as filed with West Pennsboro Township by Harry H. Fox, Jr. in September 2004.
61. The Preliminary Subdivision Plan includes, inter alia, the Private Residence, the Farm and
the remaining property that had been part of Tract No. 1 prior to the subdivision referred to in
Paragraph 44 above.
61 Harry H. Fox, Jr. expended considerable effort and resources into the Preliminary
Subdivision Plan.
63. The Preliminary Subdivision Plan was approved by West Pennsboro Township on March 15,
2005.
64. Throughout the process of gaining approval for the Preliminary Subdivision Plan, Plaintiff
SCRRACK &
LINSENBACH failed to assert any right to exercise its right of first refusal, but rather attempted to negotiate separate
concessions from Harry H. Fox, Jr.
SCHRACK &
LINSENBACH
65. Defendants relied upon Plaintiffs actions during the process of Preliminary Subdivision Plan
approval.
66. Prior to June 28, 2005, Plaintiff did not assert any claim that it had a right to purchase the
entire tract of Tract No. 1.
67. Plaintiff permitted Harry H. Fox, Jr. to expend considerable effort and resources on the
Preliminary Subdivision Plan without asserting its claim that it had a right to purchase the entire tract
of Tract No. 1.
68. Plaintiff's claims to any right of first refusal to purchase the entire tract of Tract No. 1 are
barred by Laches.
69. Plaintiff s claims to any right of first refusal to purchase the entire tract of Tract No. I are
barred by estoppel.
70. Plaintiffs claims in equity are barred because Plaintiff has an adequate remedy at law.
71. Plaintiff s claims are barred by the doctrine of unclean hands.
72. Plaintiff received the 1.282 acres of land referred to in Paragraph 20 of Plaintiff s Complaint
in consideration for the easement granted in the Agreement.
73. No separate and distinct consideration was given to the McCullough's for the right of first
refusal.
74. The right of first refusal claimed by Plaintiff is void for lack of consideration.
75. In the alternative, Plaintiffs claim that it is entitled to a right of first refusal for the entire
Tract No. I is void for lack of adequate consideration.
76. Plaintiffs claims are barred by the applicable statute of limitations.
WHEREFORE, Defendant Fox respectfully requests this honorable Court to enter an Order
in favor of Defendant Fox and against Plaintiff dismissing Plaintiffs Complaint, with prejudice.
DEFENDANT HARRY H. FOX, JR.'S,
NEW MATTER TO PLAINTIFF'S COMPLAINT
77. Defendant Harry H. Fox, Jr.'s Answer and New Matter for paragraphs 1 through 76 are
incorporated herein as if set forth in full.
78. Plaintiff s delay in filing the Complaint, from the time the Plaintiff learned of the impending
sale between Defendants, was due entirely to Plaintiff.
79. Defendant Fox has been prejudiced by this delay.
80. Defendant Fox purchased property from Defendants McCulloughs for valuable consideration,
as set forth in the deed attached to Plaintiffs Complaint as E?xhibit G.
81. Defendant Fox acted under information and belief that any right of first refusal had been
extinguished.
82. Defendant Fox acted under advise that any right of first refusal had been extinguished.
83. Defendant Fox's belief that any alleged right of first refusal had been extinguished was
strengthened by Plaintiff s lack of action as the subdivision of the property went forward in a public
SCHRACK &
LtNSENBACH, forum with Plaintiffs knowledge.
1 11
84. Defendant Fox's belief that any alleged right of first refusal had been extinguished was
strengthened by Plaintiffs lack of communication about any such right as the subdivision of the
property went forward in a public forum with Plaintiff s knowledge.
85. Plaintiffs failed to directly notify Defendant Fox as to any right of first refusal prior to his
purchase.
86. Plaintiffs failed to directly notify Defendant Fox as to any right of first refusal within a
reasonable time after Plaintiff s knowledge of the pending subdivision of the property.
87. Defendant Fox acted in good faith in purchasing the property from Defendant McCulloughs.
WHEREFORE, Defendant Fox respectfully requests this honorable Court to enter an Order
in favor of Defendant Fox and against Plaintiff dismissing Plaintiffs Complaint, with prejudice.
Respectfully submitted:
SCHRACK & LIINSENBACH LAW OFFICES
By:
BRIAN C. L SENBACH, ESQUIRE
L D. No. (87360)
Attorney for
124 West Harrisburg Street
P. O. Box 310
Dillsburg, PA 17019
Telephone: 717-432-9733
Fax: 717-432-1053
SCHRACK &
LI:SSENBACH
i nw rn ra,
PRESBYTERIAN HOMES, : IN THE COURT OF COMMON PLEAS OF
INCORPORATED, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
VS.
CIVIL ACTION - EQUITY
DONALD A. MCCULLOUGH and
VI CKY C. MCCULLOUGH,
husband and wife, and HARRY H.
FOX, JR., No. 05-5800
Defendants
VERIFICATION
I, HARRY H. FOX, JR., verify that the statements in the foregoing document are true and
correct to the best of my knowledge, information and belief. I understand that false statements
herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to
authorities.
Date: /Z - ZOG & '/V -"'A
HARRY . FOX, JR.
SCHRACK &
LINSENBACH
I U, Ol I[C I.Y
PRESBYTERIAN HOMES, : IN THE COURT OF COMMON PLEAS OF
INCORPORATED, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
VS.
CIVIL ACTION -EQUITY
DONALD A. MCCULLOUGH and
VI CKY C. MCCULLOUGH,
husband and wife, and HARRY H.
FOX, JR., : No. 05-5800
Defendants
CERTIFICATE OF SERVICE
I, BRIAN C. LINSENBACH, ESQ., of the law offices of SCHRACK & LINSENBACH,
certify that I have served a copy of the Answer to Complaint upon the Plaintiffs attorney by U. S.
Mail, First Class Postage Prepaid, as follows:
Helen L. Gemmill, Esquire
McNees Wallace & Nurick, LLC
P. O. Box 1166
100 Pine Street
Harrisburg, PA 17108-1166
David H. Martineau, Esquire
SALZMANN HUGHES, P.C.
354 Alexander Spring Road
Suite 1
Carlisle, PA 17013
SCHRACK &
LINSENBACH
/ z 06
Date
BRIAN C. LINSENBACH, ESQ. (87360)
SCHRACK & LINSENBACH Law Offices
124 West Harrisburg Street
Post Office Box 310
Dillsburg, PA 17019
PRESBYTERIAN HOMES, IN THE COURT OF COMMON PLEAS OF
INCORPORATED, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
V. CIVIL ACTION - EQUITY
DONALD A. MCCULLOUGH and :
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR., NO. 2005-5800
Defendants
REPLY TO NEW MATTER OF MCCULLOUGH DEFENDANTS
Presbyterian Homes, Incorporated ("PHI"), by and through its counsel McNees
Wallace & Nurick LLC, for its reply to the new matter asserted by Defendants Donald A.
McCullough and Vicky C. McCullough, avers as follows:
43. PHI incorporates by reference paragraphs 1-42 of its Complaint as though
fully set forth herein.
44. Upon reasonable investigation, PHI is without knowledge or information
sufficient to form a belief as to the truth of the averment that West Pennsboro Township
had a Subdivision Ordinance in 1976 and therefore PHI denies the averment.
45. Paragraph 45 states a legal conclusion as to which no response is
required. To the extent a response is required, PHI denies the averment.
46. Denied. Green Ridge Lane runs through only a portion of Tract No. 1, as
Tract No. 1 is defined in the deed attached as Exhibit C to PHI's Complaint. Tract No. 1
remains a defined and deeded tract of land that is not wholly divided by Green Ridge
Lane.
47. Admitted in part and denied in part. PHI admits that the house in which
the McCulloughs presently reside or formerly resided is located north of Green Ridge
Lane and near the intersection of Green Ridge Lane and the property upon which PHI
operates Green Ridge Lane. PHI denies that the house is located on a "lot" that is north
of Green Ridge Lane. Rather, the house is located on Tract No. 1, as defined in the
deeds dated May 15, 1991 and April 20, 1982. PHI also denies any averment or
inference that the house or any property less than the whole of Tract No. 1 is the
"residence property" referenced in the Agreement dated December 30, 1991 (attached
as Exhibit F to PHI's Complaint).
48. Admitted in part and denied in part. Upon information and belief, PHI
admits that the house in which the McCulloughs presently reside or formerly resided
has never been physically located south of Green Ridge Lane. PHI denies any
averment or inference that the land on the south of Green Ridge Lane is not currently a
portion of Tract No. 1 as defined in the deed attached as Exhibit C to PHI's Complaint.
PHI also denies any averment or inference that the "residence property" referenced in
the Agreement dated December 30, 1991 does not include the land on the south side of
Green Ridge Lane.
49. Denied. PHI denies that the "residence property" referenced in the
Agreement dated December 30, 1991 is coextensive with the property that the
McCulloughs describe as the "Private Residence" in paragraph 49 of their New Matter.
The property described in paragraph 49 reflects an arbitrary and unilateral attempt by
Defendants to limit the area that is subject to the right of first refusal contained in the
December 30, 1991 Agreement. PHI denies that a preliminary subdivision plan dated
2
September 8, 2004 prepared by or on behalf of Defendants has any bearing upon the
obligations of the parties under the December 30, 1991 Agreement. Further answering,
there is no Exhibit A attached to the copy of the New Matter served upon counsel for
PHI.
50. Denied. The "Private Residence" as defined in the McCullough's New
Matter is not coextensive with the "residence property" identified in the December 30,
1991 Agreement. The house in which the McCulloughs presently reside or formerly
resided is located on Tract No. 1, which encompasses land on both the north and south
sides of Green Ridge Lane and land at the end of Green Ridge Lane. A portion of Tract
No. 1 has been used for farming.
51. Admitted in part and denied in part. PHI admits that the easement
referenced in the December 30, 1991 Agreement was granted by PHI to the
McCullough Defendants across Green Ridge Lane to "be used only for the purpose of
ingress and egress to the private residence of Donald A. and Vicky C. McCullough."
The Agreement, being a writing, speaks for itself in its entirety. PHI denies that the
easement has any bearing on PHI's right of first refusal under the December 30, 1991
Agreement to purchase the whole of Tract No. 1 upon which the house was located.
PHI further denies that the "private residence" as defined by the McCulloughs is
coextensive with the "residence property."
52. Admitted in part and denied in part. PHI admits that the easement granted
under the Agreement was solely for access to the house. PHI denies the remaining
averments of paragraph 52 of the New Matter. PHI denies that the easement has any
bearing on PHI's right of first refusal under the December 30, 1991 Agreement to
3
purchase the whole of Tract No. 1 upon which the house was located. PHI further
denies that the "private residence" as defined by the McCulloughs is coextensive with
the "residence property."
53. Admitted in part and denied in part. PHI admits that the language of the
Agreement states that the right of first refusal was "to purchase the residence property
for which the above granted easement and right-of-way was given." PHI denies that the
"private residence" as defined by the McCulloughs in their New Matter is coextensive
with the "residence property" referenced in the Agreement.
54. Denied. The right of first refusal grants PHI the right to purchase the real
property described in the Agreement as the "residence property." The "residence
property" is the entirety of the parcel described as Tract No. 1 in the deeds dated May
15, 1991 and April 20, 1982.
55. Paragraph 55 states a legal conclusion as to which no response is
required. To the extent a response is required, PHI denies the averment.
56. Admitted in part and denied in part. PHI admits that on or about July 29,
2005, Defendants offered to sell to PHI the portion of Tract No. 1 that Defendants define
as the "Private Residence." PHI denies that the offer to sell this portion of Tract No. 1
satisfies the McCullough Defendants' obligations under the December 30, 1991
Agreement. Further answering, in late 2003 the McCulloughs requested that PHI make
an offer to purchase all of the land owned by the McCulloughs. PHI informed the
McCulloughs that PHI was only interested in Tract No. 1 and Tract No. 3. PHI
proceeded to obtain an appraisal on Tract No. 1 and Tract No. 3. The McCulloughs
failed to present an appraisal to PHI as required under the December 30, 1991
4
Agreement, so that the price could be set by averaging each party's appraisal. The
McCulloughs also refused to accept PHI's appraised price as the price for Tract No. 1
and Tract No. 3. The McCulloughs did not offer to sell to PHI the portion of Tract No. 1
that Defendants define as the "Private Residence" until after the McCulloughs entered
into an agreement with Harry Fox for the sale of the land that was subject to PHI's right
of first refusal..
57. Admitted in part and denied in part. PHI admits that it did not accept
Defendants' offer to sell the portion of Tract No. 1. PHI denies that it "failed" to do
anything that PHI was legally required to do. Further answering, Defendants' offer to
sell only a portion of Tract No. 1 to PHI did not satisfy the McCullough Defendants'
obligations under the December 30, 1991 Agreement. PHI denies the remaining
averments of Paragraph 57.
58. Paragraph 58 states a legal conclusion as to which no response is
required. To the extent a response is required, PHI denies the averment. Further
answering, Defendants' offer to sell only a portion of Tract No. 1 to PHI did not satisfy
the McCullough Defendants' obligations under the December 30, 1991 Agreement. The
right of first refusal grants PHI the right to purchase the real property described in the
Agreement as the "residence property." The "residence property" is the entirety of the
parcel described as Tract No. 1 in the deeds dated May 15, 1991 and April 20, 1982.
PHI denies the remaining averments of Paragraph 58.
59. Denied. Further answering, the sale of land to Defendant Fox did not
occur until April 5, 2005. Accordingly, PHI could not have known of the sale prior to
5
October 31, 2004. PHI also objected to the sale to Defendant Fox as a breach of the
Agreement.
60. Denied. Upon current information and belief, PHI was not provided with a
copy of the Preliminary Subdivision Plan prior to October 31, 2004. PHI's investigation
to determine the date when it first received the Preliminary Subdivision Plan is ongoing.
Further answering, a copy of the Preliminary Subdivision Plan is not attached as an
Exhibit to the McCullough Defendants' New Matter.
61. Denied. A copy of the Preliminary Subdivision Plan is not attached as an
Exhibit to the McCullough Defendants' New Matter, and therefore PHI is without
knowledge or information sufficient to form a belief as to the truth of the averments with
respect to the contents of the specific Preliminary Subdivision Plan referenced in the
New Matter. Further answering, PHI denies the characterization of Green Ridge Lane
as a "subdivision."
61. [sic] Denied. After reasonable investigation, PHI is without knowledge or
information sufficient to form a belief as to the truth of the averments regarding effort
and resources expended by Harry H. Fox, Jr.
63. Denied. After reasonable investigation, PHI is without knowledge or
information sufficient to form a belief as to the truth of the averments regarding approval
of the Preliminary Subdivision Plan and the satisfaction of any conditions of approval.
64. Denied. PHI advised Defendants that it intended to exercise its rights of
first refusal and PHI followed the provisions of the December 30, 1991 Agreement. The
McCullough Defendants breached the Agreement by failing to offer the residence
property to PHI as required under the Agreement. Further answering, inasmuch as
6
Defendant Fox did not own the land prior to April 5, 2005, no "concessions" could have
been obtained from Defendant Fox prior to that date. PHI denies the remaining
averments of Paragraph 64.
65. Denied. After reasonable investigation, PHI is without knowledge or
information sufficient to form a belief as to the truth of the averments regarding any
reliance by the McCullough Defendants. Further answering, PHI advised Defendants
that it intended to exercise its rights of first refusal, including by letter dated February
18, 2005, which preceded the alleged Preliminary Subdivision Plan approval on March
15, 2005.
66. Denied. PHI advised Defendants that it intended to exercise its rights of
first refusal, which required that the McCullough Defendants offer the entirety of Tract
No. 1 for sale to PHI prior to offering it to any other potential buyer.
67. Denied. Further answering, Harry H. Fox, Jr. was aware of the Agreement
dated December 30, 1991 and PHI's right of first refusal. The Agreement containing
PHI's right of first refusal was a matter of public record, recorded on October 4, 1994 in
the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in
Miscellaneous Book 483, Page 513, and is referenced in the deed from the
McCulloughs to Fox.
68. Paragraph 68 states a legal conclusion as to which no response is
required. To the extent a response is required, PHI denies the averment that PHI's
claims are barred by the doctrine of laches (misspelled in the McCullough Defendants'
New Matter as "latches").
7
69. Paragraph 69 states a legal conclusion as to which no response is
required. To the extent a response is required, PHI denies the averment that PHI's
claims are barred by the doctrine of estoppel.
70. Paragraph 70 states a legal conclusion as to which no response is
required. To the extent a response is required, PHI denies the averment that PHI's
claims are barred by an adequate remedy at law.
71. Paragraph 71 states a legal conclusion as to which no response is
required. To the extent a response is required, PHI denies the averment that PHI's
claims are barred by the doctrine of unclean hands.
72. Denied. Further answering, the December 30, 1991 Agreement, being a
writing, speaks for itself.
73. Denied. Further answering, the December 30, 1991 Agreement, being a
writing, speaks for itself.
74. Paragraph 74 states a legal conclusion as to which no response is
required. To the extent a response is required, PHI denies the averment that PHI's right
of first refusal is void for lack of consideration.
75. Paragraph 75 states a legal conclusion as to which no response is
required. To the extent a response is required, PHI denies the averment that PHI's right
of first refusal is void for lack of adequate consideration.
76. Paragraph 76 states a legal conclusion as to which no response is
required. To the extent a response is required, PHI denies the averment that PHI's
claims are barred by any applicable statute of limitations.
8
WHEREFORE, PHI requests that the Court deny any relief to the McCullough
Defendants on their New Matter and order that Defendants specifically perform the
Agreement and by good and sufficient deed convey and assure the premises known as
Tract No. 1, and every part thereof with marketable title (per the Agreement), in fee
simple to PHI.
McNEES WALLACE & NURICK LLC
By_?F• L
Helen L. Gemmill (ID No. 60661)
Sean P. Delaney (1D No. 85996)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Presbyterian Homes, Incorporated
Dated: February 1, 2006
9
VERIFICATION
Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to
authorities, I hereby certify that I am authorized to make this verification on behalf of
Presbyterian Homes, Incorporated, that I have reviewed the foregoing and that the facts set
forth therein are true and correct to the best of my knowledge, information and belief.
Presbyterian Homes, Incorporated
By - ((rr
Printed name
S?,rua- ??'?L?r"a
Title
Dated: February 1, 2006
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was served
this date first class mail, postage prepaid, upon the following:
James D. Hughes, Esq.
G. Bryan Salzmann, Esq.
E. Ralph Godfrey, Esq.
David H. Martineau, Esq.
SALZMANN HUGHES, P.C.
Suite 1
354 Alexander Spring Road
Carlisle, PA 17013
Brian C. Linsenbach, Esq.
SCHRACK & LINSENBACH
124 West Harrisburg Street
PO Box 310
Dillsburg, PA 17019
Helen L. Gemmill
Dated: February 1, 2006
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PRESBYTERIAN HOMES, : IN THE COURT OF COMMON PLEAS OF
INCORPORATED, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
V. CIVIL ACTION - EQUITY
DONALD A. MCCULLOUGH and :
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR., NO. 2005-5800
Defendants
REPLY TO NEW MATTER OF DEFENDANT FOX
Presbyterian Homes, Incorporated ("PHI"), by and through its counsel McNees
Wallace & Nurick LLC, for its reply to the new matter asserted by Defendant Harry A.
Fox, Jr., avers as follows:
43. PHI incorporates by reference paragraphs 1-42 of its Complaint as though
fully set forth herein.
44-76. PHI incorporates by reference paragraphs 44-76 of its reply to the new
matter asserted by the McCullough Defendants as though fully set forth herein.
77. PHI incorporates by reference paragraphs the foregoing paragraphs 1-76
as though fully set forth herein.
78. Denied. PHI denies that it delayed in filing its Complaint. Further
answering, Defendant Fox had full knowledge of PHI's right of first refusal and chose to
proceed to closing at Defendant Fox's own risk.
79. Denied. PHI denies that it delayed in filing its Complaint. Further
answering, Defendant Fox had full knowledge of PHI's right of first refusal and chose to
proceed to closing at Defendant Fox's own risk. PHI denies that Defendant Fox has
been prejudiced by any actions or inactions of PHI.
80. Admitted.
81. Denied. PHI is without knowledge or information sufficient to form a belief
as to the truth of Defendant Fox's averments regarding his beliefs and his motivations
for his actions. Further answering, there was no factual or legal basis upon which
Defendant Fox could have reasonably concluded that PHI's right of first refusal had
been extinguished.
82. Denied. PHI is without knowledge or information sufficient to form a belief
as to the truth of Defendant Fox's averments regarding any advice that he received.
Further answering, there was no factual or legal basis upon which Defendant Fox could
have reasonably concluded that PHI's right of first refusal had been extinguished.
83. Denied. PHI is without knowledge or information sufficient to form a belief
as to the truth of Defendant Fox's averments regarding his beliefs and his motivations
for his actions. Further answering, there was no factual or legal basis upon which
Defendant Fox could have reasonably concluded that PHI's right of first refusal had
been extinguished.
84. Denied. PHI is without knowledge or information sufficient to form a belief
as to the truth of Defendant Fox's averments regarding his beliefs and his motivations
for his actions. Further answering, there was no factual or legal basis upon which
Defendant Fox could have reasonably concluded that PHI's right of first refusal had
been extinguished.
2
85. Denied. PHI's right of first refusal was and is a matter of public record.
Further answering, Defendant Fox had actual knowledge of PHI's right of first refusal
prior to Fox's purchase.
86. Denied. PHI's right of first refusal was and is a matter of public record.
Further answering, Defendant Fox had actual knowledge of PHI's right of first refusal
prior to Fox's purchase.
87. Denied. PHI is without knowledge or information sufficient to form a belief
as to the truth of Defendant Fox's averments regarding his beliefs and his motivations
for his actions. Further answering, there was no factual or legal basis upon which
Defendant Fox could have reasonably concluded that PHI's right of first refusal had
been extinguished.
WHEREFORE, PHI requests that the Court deny any relief to Defendant Fox on
his New Matter and order that Defendants specifically perform the Agreement and by
good and sufficient deed convey and assure the premises known as Tract No. 1, and
every part thereof with marketable title (per the Agreement), in fee simple to PHI.
McNEES WALLACE & NURICK LLC
Bye
Helen L. Gemmill (ID No. 60661)
Sean P. Delaney (ID No. 85996)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Presbyterian Homes, Incorporated
Dated: February 1, 2006
3
VERIFICATION
Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to
authorities, I hereby certify that I am authorized to make this verification on behalf of
Presbyterian Homes, Incorporated, that I have reviewed the foregoing and that the facts set
forth therein are true and correct to the best of my knowledge, information and belief.
Presbyterian Homes, Incorporated
By?
?eiF;sa J 7aJ\S
Printed name
Sc,. ; rr V e/C Fo
Title
Dated: February 1, 2006
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was served
this date first class mail, postage prepaid, upon the following:
James D. Hughes, Esq.
G. Bryan Salzmann, Esq.
E. Ralph Godfrey, Esq.
David H. Martineau, Esq.
SALZMANN HUGHES, P.C.
Suite 1
354 Alexander Spring Road
Carlisle, PA 17013
Brian C. Linsenbach, Esq.
SCHRACK & LINSENBACH
124 West Harrisburg Street
PO Box 310
Dillsburg, PA 17019
Helen L. Gemmill
Dated: February 1, 2006
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SALZMANN HUGHES, P.C. James D. Hughes, Esquire, G. Bryan Salzmann, Esquire
354 Alexander Spring Road, Suite I David H. Martineau, Esquire, E. Ralph Godfrey, Esquire
Carlisle, PA 17013 Attorneys for Defendants Donald A. McCullough &
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff
v.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and .
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -EQUITY
DOCKET NO. 2005-5800
DEFENDANTS DONALD A. AND VICKY C. McCULLOUGH'S MOTION
FOR
JUDGMENT ON THE PLEADINGS
AND NOW, come Defendants Donald C. McCullough and Vicky C. McCullough,
by and through their counsel, Salzmann Hughes, P.C., and file this Motion for Judgment
on the Pleadings, in support of which they aver as follows:
On or about December 30, 1991, Plaintiff and Donald A. McCullough and
Vicky C. McCullough (the "McCulloughs") and Donald T. McCullough and Helen G.
McCullough entered into an agreement under which Plaintiff received a parcel of property
of approximately 1.383 acres in exchange for granting the McCullough's an easement to use
Green Ridge Lane for the purposes of ingress and egress to their residence and under which
Plaintiff also received the right of first refusal to purchase the residence (the "Agreement").
2. On November 7, 2005, Plaintiffs filed a complaint in equity attempting to
assert rights it claims under the right of first refusal to purchase real property described in
the Agreement dated December 30, 1991 as "the residence property." (See Complaint at
Para. 16.)
3. The Agreement is a writing which speaks for itself and is not altered by the
averments or allegations of the parties.
4. The Agreement is clear and unambiguous.
5. Under the terms of the Agreement "The easement and right-of-way granted
herein shall be used only for the purpose of ingress and egress to the private residence of
Donald A. and Vicky C McCullough." Exhibit °F" to Plaint ff's Complaint (emphasis
added).
6. Under the terms of the Agreement "In the event Donald A. and Vicky C.
McCullough and/or their children and lineal descendants decide to sell or otherwise dispose
of the residence for which the easement and right-of-way has been granted, [the
McCulloughs] hereby grant to [Plaintiff], its successors and assigns, a right of first refusal to
purchase the residence property for which the above granted easement and right-of-way
was given for its fair market value determined by ..." Exhibit "F" to Plaint's Complaint
(emphasis added).
7. The parties have agreed in the pleadings that the easement is limited to the
private residence and does not serve the farm, which constitutes the remainder of what
Plaintiff refers to as Tract No. I as averred in Plaintiff s Complaint. See McCullough's New
Matter, Paragraphs 51 and 52 and Plaintiffs responses thereto.
8. Although Plaintiff disagrees with the legal conclusion to be drawn from the
above mentioned facts, the underlying facts are not in dispute.
9. The interpretation of a contract is a question of law which may be resolved
by the Court.
10. Paragraphs 1-9 are incorporated herein as if set forth in full.
11. The Agreement clearly limits the easement and right-of-way to be used only
for the McCulloughs' private residence.
12. The Agreement clearly limits Plaintiffs right of first refusal to only the
McCullough's private residence.
13. The extent of Plaintiffs right of first refusal is clear within the four corners
of the Agreement.
14. Because the extent of Plaintiffs right of first refusal is clear within the four
corners of the Agreement, no parole evidence may be considered in determining the
meaning of the Agreement as to this issue.
15. There is no need for the parties to engage in discovery prior to the Court's
determination of the extent of Plaintiff s right of first refusal.
16. The Agreement clearly limits Plaintiffs right of first refusal to the private
residence of the McCulloughs to the exclusion of the farm land surrounding the residential
property.
17. Pursuant to Pennsylvania Rule of Civil Procedure 1034, a motion for
judgment on the pleadings may be granted in cases where no facts are at issue and the law
is clear that a trial would be a fruitless exercise. Matthew-Landis v Housing Authori?,
240 PA. Super. 541, 361 A.2d 742 (1976).
18. The motion for judgment on the pleadings was created to permit an overall
examination of pleadings in the action, on application of any party, after the pleadings are
closed, to determine whether judgment should be entered upon the pleadings prior to trial.
Reardell v. Western Wayne School District, 91 Pa.Cmwlth 348, 352, 496 A.2d 1373,
1375 (198).
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough
respectfully request this Honorable Court to enter judgment in favor of Donald A.
McCullough and Vicky C. McCullough and against Plaintiff that Plaintiff's right of first
refusal is limited only to the residence of Donald A. McCullough and Vicky C. McCullough
to the exclusion of the remainder of Tract No. 1 used as farm land.
19. Paragraphs 1-18 are incorporated herein as if set forth in full.
20. Plaintiff admits that on or about July 29, 2005, Defendants offered to sell
to Plaintiff the property consisting of the McCullough residence and the surrounding
property maintained for residential purposes (defined as the "Private Residence" in the
McCulloughs' New Matter). See McCullough's New Matter, Paragraph 56 and Plaintiff's
response thereto.
21. Plaintiff admits that Plaintiff did not accept the offer referred to in Paragraph
20 above. See McCullough's New Matter, Paragraph 5 and Plaintiff's response thereto.
22. Plaintiffs right of first refusal under the Agreement is extinguished by
Plaintiff s rejection of Defendants' offer to sell the subject property to Plaintiff.
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough
respectfully request this Honorable Court to enter judgment in favor of Defendants and
against Plaintiff. that Plaintiff s right of first refusal is extinquished.
Cnnnt Ill-Judgment on Pleadings
Right of First Refusal Void as Vague
(Pleading in the alternative)
23. Paragraphs 1-22 are incorporated herein as if set forth in full.
24. In the alternative, to the extent to which this Court finds that the
Agreement does not clearly indicate that the "residence property" to which Plaintiffs
claim a right of first refusal refers to the property used and maintained for residential
purposes (which assertion the McCullough Defendant's deny), the right of first refusal
does not adequately define the "residence property".
25. If the "residence property" referred to in the Agreement does not refer to
the property used and maintained for residential purposes, it is impossible to determine
the extent of any right of first refusal Plaintiff may have.
26. If the "residence property" referred to in the Agreement does not refer to
the property used and maintained for residential purposes, any right of first refusal
claimed by Plaintiff under the Agreement is void for lack of an adequate description of
the real property to which it applies.
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough
respectfully request this Honorable Court to enter judgment in favor of Donald A.
McCullough and Vicky C. McCullough and against Plaintiff that Plaintiffs right of first
refusal is void as too vague.
Respectfully submitted,
Dated
SALZMANN HUGHES, P.C.
By: /?
David H. Martineau, Esquire
Attorney I.D. No. 84127
354 Alexander Spring Road, Suite I
Carlisle, PA 17013
(717) 249-6333
Attorneys for Donald A. McCullough and
Vicky C. McCullough, Defendants
13 6E
CERTIFICATE OF SERVICE
AND NOW, this23'2day of March, 2006, 1, David H. Martineau, of Salzmann
Hughes, P.C., counsel for the Plaintiff, hereby certify that I served a copy of the within
Defendant Donald A. McCullough and Vicky C. McCullough's Motion for Judgment on
the Pleadings, this day by depositing the same in the United States mail, postage prepaid,
at Carlisle, Pennsylvania, addressed to:
Helen L. Gemmill, Esquire
Sean P. Delaney, Esquire
McNees Wallace & Nurick, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Bryan Linsenbach, Esquire
Schrack & Linsenbach
124 West Harrisburg Street
PO Box 310
Dillsburg, PA 17019-0310
David H. Martineau, Esquire
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SALZMANN HUGHES, P.C. James D. Hughes, Esquire. G. Bryan Salzmann, Esquire
354 Alexander Spring Road, Suite l David H. Martineau, Esquire, E. Ralph Godfrey, Esquire
Carlisle, PA 17013 Attorneys for Defendants Donald A. McCullough &
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
DOCKET NO. 2005-5800
DEFENDANTS DONALD A. AND VICKY C. McCULLOUGH'S MOTION TO
DEEM REQUESTS FOR ADMISSIONS ADMITTED, STRIKE OBJECTIONS
AND COMPEL PLAINTIFF'S RESPONSES TO
RF.QUF.STS FOR THE PRODUCTION OF DOCUMENTS
AND NOW, come Defendants Donald C. McCullough and Vicky C. McCullough,
by and through their counsel, Salzmann Hughes, P.C., and file this Motion to Deem
Requests for Admissions Admitted, Strike Objections and Compel Plaintiff's Responses
to Requests for the Production of Documents, as follows:
On or about November 7, 2005 Plaintiff filed its Complaint in this matter.
2. On or about January 6, 2006, Defendants Donald A. McCullough and Vicky
C. McCullough (the "McCulloughs") filed their Answer with New Matter.
3. Concurrently with serving their Answer with New Mater, the McCulloughs
served upon Plaintiff their Requests for Admissions, Request for the Production of
Documents and Interrogatories. A true and correct copy of the Requests for Admissions are
attached hereto as Exhibit "A" and incorporated herein. A true and correct copy of the
Request for Production of Documents is attached hereto as Exhibit "B" and incorporated
herein.
4. Plaintiff served its Responses and Objections to Plaintiffs Request for
Admissions and Request for Production of Documents on the McCulloughs on or about
February 6, 2006. A true and correct copy of Plaintiffs Response to Defendant Donald A.
McCullough and Vicky C. McCullough's Request for Admissions Directed to Plaintiff is
attached hereto as Exhibit "C" and incorporated herein. Plaintiffs Response to Request for
Production of Documents and Things of Defendant Donald A. McCullough and Vicky C.
McCullough Addressed to Plaintiff is attached hereto as Exhibit "D" and incorporated
herein.
Motion to Strike Plaintiffs Objections to the
MeC ullongh's Requests for Production of Documents
Relati ng to Production of Newsletters
5. Paragraphs I through 4 are incorporated herein as if set forth in full.
6. The McCulloughs' Request for the Production of Documents contains the
following requests:
"5. All newsletters to residents in the Presbyterian Homes, Incorporated
for the past 5 years."
"6. All newsletters to residents prepared or distributed between January
1991 and March 1992."
(hereinafter collectively referred to as the "Newsletter Requests")
7. Plaintiff objected to both of the Newsletter Requests, stating as to each "PHI
objects to this request on the grounds that it is overbroad, unduly burdensome and in that is
seeks documents not relevant to the facts or issues raised in this case nor likely to lead to the
discovery of relevant evidence."
8. The Newsletter Requests are not overly broad.
9. The Newsletter Requests are not unduly burdensome because Plaintiff
produced and has complete control over the requested documents.
10. The Newsletter Requests are relevant and likely to lead to additional relevant
evidence because it is believed that the requested documents contain statements by Plaintiff
to Plaintiffs residents relating to the matters set forth in Plaintiffs Complaint and
Defendants' New Matter.
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough
respectfully request this Honorable Court to strike Plaintiff's objections to their Requests
for Production of Documents number 5 and 6 and Order Plaintiff to provide the requested
documents.
Motion to Strike Plaintiffs Ohiections to the
McCullough'- Requests for Production of Documents
Gene
11. Paragraphs 1 through 10 are incorporated herein as if set forth in full.
12. Preceding Plaintiff's responses to the McCulloughs' Requests for the
Production of Documents are three (3) general objections to the discovery of the requested
documents.
13. Each of Plaintiff's responses to the McCulloughs' individual requests
contains additional general objections or references to the general objections referred to in
Paragraph 12 above.
14. With respect to objections to requests for the production of documents,
Plaintiff is required to "identify all documents or things not produced or made available
because of the objection that they are not within the scope of permissible discovery under
Rule 4003.2 through Rule 4003.6 inclusive and Rule 4011(-). Documents or things not
produced shall be identified with reasonable particularity together with the basis for non-
production." Pa.R.C.P.4009.12(b)(2).
15. Plaintiffs responses to the McCulloughs' Requests for the Production of
Documents do not identify a single document the discovery of which Plaintiff finds
objectionable.
16. Plaintiff has failed to object to the McCulloughs' Requests for Production of
Documents as required under Pa.C.R.P. 4009.12(b)(2).
17. Plaintiff has waived any and all objections to the discovery of the requested
documents.
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough
respectfully request this Honorable Court to strike Plaintiffs objections to their Requests
for Production of Documents and Order Plaintiff to respond to the same without objection.
18. Paragraphs I through 17 of this Motion are incorporated herein as if set
forth in full.
19. Pa.R.C.P. 4009.12(b) requires the party answering requests for the
production of documents to:
(1) Identify all documents or things produced or made available;
(2) Identify all documents or things not produced or made available
because of the objection that they are not within the scope of permissible
discovery under Rule 4003.2 through Rule 4003.6 inclusive and Rule 4011(c).
Documents or things not produced shall be identified with reasonable particularity
together with the basis for non-production.
(3) State that after reasonable investigation, it has been determined that
there are no documents responsive to the request.
20. Plaintiff s responses in Exhibit "D" to the McCulloughs' requests
numbered 1, 3, 4, 7, 8, 9, 10, 11, 12, 13 & 14 state as to each numbered paragraph only
general objections and that it will produce requested documents not protected or
privileged for inspection and copying at a mutually agreeable time and place.
21. Plaintiffs objections to Defendants requests for production of documents
are general and do not identify a single document or thing, the production of which
Plaintiff finds objectionable.
22. Plaintiffs responses to the McCulloughs' Requests for Production of
Documents do not identify a single documents or thing to be made available as required
under Pa.R.C.R 4009.12(b).
23. Out of fourteen (14) separate requests, Plaintiff only indicated as to one (1)
request that Plaintiff is unaware of the existence of any documents responsive to the
McCulloughs' requests.
24. Plaintiff's Responses and Objections to the McCulloughs' Request for the
Production of Documents and Things are unresponsive and do not comply with the
requirements of Pa.R.C.P. 4009.12(b).
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough
respectfully request this Honorable Court to strike Plaintiff's objections to their Requests
for Production of Documents and Order Plaintiff to provide full and adequate responses to
the Requests for Production of Documents.
25. Paragraphs 1 through 24 are incorporated herein as if set forth in full.
26. Each matter, the admission of which is requested "is admitted unless,
within thirty days after service of the request ... the party to whom the request was
directed serves upon the party requesting the admission an answer verified by the party or
an objection, signed by the party or the party's attorney ..." Pa.R.C.P. 4014(b).
27. Plaintiff is required in its answer to the McCulloughs' Requests for
Admissions to "admit or deny the matter or set forth in detail the reason why the
answering party cannot truthfully do so." Pa.R.C.P. 4014(b).
28. The McCulloughs' Request for Admission No. 1 requests that Plaintiff
admit "There are no writings other than the Agreement which form any part of a
contractual agreement between Plaintiff and Defendants with respect to the issues set
forth in Plaintiff's Complaint or the McCullough's New Matter."
29. Plaintiff's response purports to deny Request Number 1 stating "The
Agreement contains PHI'S right of first refusal. Other documents however, including the
correspondence between the parties to the Agreement and the various deeds, may be
useful in interpreting or construing the Agreement and determining the parties' intent."
30. The McCulloughs' Request Number 1 asks Plaintiff to admit that there is
no other part of the contractual agreement, not whether or not there may exist parole
evidence useful in interpreting the Agreement.
31. Plaintiffs denial of Request Number 1 is based upon the existence of
parole evidence, not additional contracts agreements.
32. The McCulloughs' Request Number 1 should be deemed admitted for
failure of Plaintiff to adequately deny the request.
33. The McCulloughs' Request for Admission No. 5 requests that Plaintiff
admit "No part of the real property within Tract No. 1 other than the Private Residence is
connected to Green Ridge Lane through any road or path, either improved or
unimproved."
34. Plaintiff's response purports to deny Request Number 5 stating "Tract No.
1 directly adjoins Green Ridge Lane on the north, south and end of Green Ridge Lane."
35. The McCulloughs' Request Number 5 clearly requests an admission that
no part of Tract No. 1 other than the Private Residence is connected to Green Ridge Lane
`through any road or path ..
36. Plaintiffs denial is based upon the common border between Tract No. 1
and Green Ridge Lane and identifies no road or path.
37. The McCulloughs' Request Number 5 should be deemed admitted for
failure of Plaintiff to adequately deny the request.
38. The McCulloughs' Request for Admission No. 6 requests that Plaintiff
admit "All non-residential structures located upon Tract No. I have access to public
streets."
39. Plaintiff's response purports to deny Request Number 6 stating "Upon
reasonable inquiry, the information known to PHI or readily obtainable by PHI is
insufficient to enable PHI to admit or deny this request and therefore it is denied. PHI
believes there may be physical or legal impediments that may prevent access of the non-
residential structures to public streets, including state and local regulations."
40. Plaintiff owns and operates a business abutting Tract No. 1, which uses
Green Ridge Lane as a route of ingress and egress to said business.
41. All non-residential structures and access thereto located upon Tract No. 1
are clearly visible from Green Ridge Lane.
42. All points of access to the non-residential structures are clearly visible .
from Centerville Road, a public road at the eastern end of Green Ridge Lane.
43. Any and all state and local regulations are public information, the
discovery or which is readily available to Plaintiff.
44. Plaintiff does have ready and unimpeded access to all information
necessary to admit or deny the McCulloughs' Request Number 6.
45. The McCulloughs' Request Number 6 should be deemed admitted for
failure of Plaintiff to adequately deny the request.
46. The McCulloughs' Request for Admission No. 13 requests that Plaintiff
admit "The Defendants offered to sell the Private Residence to Plaintiff.", the "Private
Residence" being a term defined to have the same meaning as that set forth in the
McCullough's New Matter to Plaintiffs Complaint.
47. Plaintiffs response purports to deny Request Number 13 stating "Prior to
the conveyance of Tract No. I to Defendant Fox, Defendants did not offer the sell the
"Private Residence" as defined in the Requests for Admission. Accordingly, upon the
conveyance to Defendant Fox, the McCullough Defendants were in breach of the
December 30, 1991 Agreement. Further answering, PHI denies any averment or
implication that an offer to sell the "Private Residence" as defined in the Requests for
Admission, satisfies the McCullough Defendants' obligation under the December 30,
1991 Agreement. Under that Agreement, PHI's right of first refusal encompassed the
whole of Tract No. L"
48. The McCulloughs' Request Number 13 does not limit the request as to
time frame or make any legal conclusions regarding the ramifications of such action.
49. Plaintiffs denial only partially denies Request Number 13, denying the
matter only as to a particular time frame arbitrarily chosen by Plaintiff and not contained
in the request.
50. Additionally, Plaintiffs response to Request Number 13 contains
numerous legal conclusions which are irrelevant as to the admission or denial of the
factual matter subject to the request for admission.
51. Plaintiffs have actual knowledge that "on or about July 29, 2005,
Defendants offered to sell to PHI the portion of Tract No. 1 that Defendants define as the
`Private Residence'." Plaintiffs Reply to New Matter of McCullough Defendants,
Paragraph 56.
52. The McCulloughs' Request Number 13 should be deemed admitted for
failure of Plaintiff to adequately deny the request.
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough
respectfully request this Honorable Court to Order that their Requests for Admissions
Numbers 1, 5, 6 and 13 be deemed admitted.
Respectfully submitted,
SALZMANN HUGHES, P.C.
By:
David H. Martineau, Esquire
Attorney I.D. No. 84127
354 Alexander Spring Road, Ste I
Carlisle, PA 17013
(717) 249-6333
Attorneys for Donald A. McCullough and
Dated: 1Z le /2/ Vicky C. McCullough, Defendants
AND NOW, thisl7"2 day of March, 2006, I, David H. Martineau, of Salzmann
Hughes, P.C., counsel for the Plaintiff, hereby certify that I served a copy of the within
Defendant Donald A. McCullough and Vicky C. McCullough's Motion to Deem
Requests for Admissions Admitted, Strike Objections and Compel Plaintiff's Responses
to Requests for the Production of Documents, this day by depositing the same in the
United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed to:
Helen L. Gemmill, Esquire
Sean P. Delaney, Esquire
McNees Wallace & Nurick, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Bryan Linsenbach, Esquire
Schrack & Linsenbach
124 West Harrisburg Street
PO Box 310
Dillsburg, PA 17019-0310
David H. Martineau, Esquire
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SALZMANN HUGHES, P.C. James D. Hughes, Esquire, G. Bryan Salzmann, Esquire
354 Alexander Spring Road, Suite 1 David H. Martineau, Esquire, E. Ralph Godfrey, Esquire
Carlisle, PA 17013 Attorneys for Defendants Donald A. McCullough &
(717) 249-6333 - _ Vickv C .-McCullough
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
DOCKET NO. 2005-5800
PRAECIPE TO
TO THE PROTHONOTARY:
Please attach the following as Exhibit "A" to Defendants Donald A. McCullough and Vicky C.
McCullough's New Matter which was inadvertently omitted.
SAL?ZMMANN HUGHES, P.C ----?
By
James D. Hughes, Esquire
Attorney I.D. No. 58884
G. Bryan Salzmann, Esquire
Attorney I.D. No. 61935
E. Ralph Godfrey, Esquire
Attorney I.D. No. 77052
David H. Martineau, Esquire
Attorney I.D. No. 84127
354 Alexander Spring Road, Suite
Carlisle, PA 17013
(717) 249-6333
Dated: /???/? Attorneys for Defendant
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Located In
WEST PEhN8IlORO TOWNBHP, CUMIlEfI..ANll COlMY, PENN8YLVANA
PRESBYTERIAN HOMES,
INCORPORATED.
Plaintiff
MAR L 4 2006
VI,
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
INTHE COURT OF COMMON PLEAS OF
CU'MBERLAND COLiNTY. PENNSYLVANIA
CIVIL ACTION - EQUFfY
DOCKET NO. 2005-300
RITE
AND MOIL', this dayof _ yV U L? 206, upon consideration of
Defendant Donald A. McCullough and Vicky C. McCullough's Motion to Decm
Requests for Admissions Admitted and Compel Plaintiffs Rc:?ponses to Requests for the
Production of Documents and Request for Admissions, Plaintiff is hereby ordered to
show cause within L!o days of service of this Rule ,Nhy the relief requested in the
attached Motion should not be granted.
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BY THE COURT:
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SALZMANN HUGHES, P.C. James D. Hughes, Esquire, G. Bryan Salzmann, Esquire
354 Alexander Spring Road, Suite 1 David H. Martineau, Esquire, E. Ralph Godfrey, Esquire
Carlisle, PA 17013
(217)')49-63 74 Attorneys for Defendants Donald A. McCullough &
7:_]_ v (' Mr('nlln ?gl>-- ,_
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
CIVIL ACTION - EQUITY
DOCKET NO. 2005-5800
AND NOW, TO WIT, this 2C*14' day of April, 2006, comes Defendants Donald
A. and Vicky C. McCullough, by and through their attorneys, David H. Martineau,
Esquire, and the law firm of Salzmann Hughes, P.C., and file the within Motion to Make
Rule Absolute stating in support thereof as follows:
1. On or about March 23, 2006, Defendants Donald A. McCullough and
Vicky C. McCullough ("Movants") filed a Motion to Deem Requests for Admissions
Admitted, Strike Objections and Compel Plaintiff's Responses to Requests for the
Production of Documents. A true and correct copy of the Motion is hereto attached as
Exhibit "A".
2. Pursuant to the above Motion to Deem Requests for Admissions
Admitted, Strike Objections and Compel Plaintiffs Responses to Requests for the
Production of Documents, a Rule was issued by the Court on all parties on March 28,
2006, to show cause why the Movants' Motion should not be granted. A true and correct
copy of the Rule is hereto attached as Exhibit "B".
3. On April 4, 2006, the Movants caused a copy of the Rule to be served on
Plaintiff and Defendant Harry H. Fox, Jr., by United States First Class Mail. A true and
correct copy of the Certificate of Service is hereto attached as Exhibit "C".
4. The Rule issued March 28, 2006 was returnable within fourteen (14) days
after the date of service.
5. Plaintiff filed a response to said Rule on or about April 17, 2006. A true
and correct copy of Plaintiffs response is attached hereto as Exhibit "D".
6. Plaintiff s response to said Rule does not set forth any valid reason to deny
the Movants' Motion.
7. Defendant Fox has not filed a response to said Rule.
WHEREFORE, Movants respectfully request this Honorable Court to make the
Rule issued absolute and enter an Order granting the Movants' Motion to Deem Requests
for Admissions Admitted, Strike Objections and Compel Plaintiffs Responses to
Requests for the Production of Documents.
Dated: y zz -I?
Respectfully submitted,
SALZMANN HUU?GHES, P.C.
By
David H. Martineau, Esquire
Attorney I.D. No. 84127
354 Alexander Spring Road, Suite 1
Carlisle, PA 17013
(717) 249-6333
Attorneys for Defendants Donald A. and
Vicky C. McCullough
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SALZMANN HUGHES, P.C. James D. Huah_s. Esquire. G. Bryan Sa!zmann. Esquire
354 Alexander Spring Road, Suite I David H. Martineau. Esquire. E. Ralph Godrre%, Esquire
Carlisle. PA 17013 A--torn-,,s for P.eendarts Dcnah3 A. McCullou-,>h &
PRESBYTERIA\ HOMES.
INCORPORATED,
Plaintiff
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH.
husband and wife; and
HARRY" IL POX, JR..
Defendants
EN TIIE COURT OF COMMON PLEAS Of
CUNIBE-RI.AND COU\TY, PENNSYLVANIA
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CIVIL AC"LION-EQUITY
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DOCKET NO. 2005-5300
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DEFENDANTS DONALD A. AND VICKY C. McCULLOUGH'SMOTION TO
DEEM REQUESTS FOR ADMISSIONS ADNIITTED, STRIKE OBJECTIONS
AND COMPEL PLAINTIFF'S RESPONSES TO
RFOIIFS-FS FOR TAE. PROI)IICTION OF DOf 1?NIFNTS
AND NOW. come Defendants Donald C. VICCullough and Vicky C. MCCulloueh,
b,, and through their counsel. Salzmann Hughes. P.C., and file this Motion to Deem
Requests for Admis:-ions Admitted, Strike Objections and Compel Plaintiffs Responses
to Requests for the Production of Documents, as follows:
1. On or about November 7, 2005 Plaintiff filed its Complaint in this matter.
2. On or about January 6, 2006, Defendants Donald A. MCCullough and Vicky
C. McCullough (the "McCulloughs") filed their Answer with New Matter.
>99
I Concurrently r?ith ser ping their Answer wi h NetivAlater, die 1cCullOnohs
served upon Plaintiff their Requests for Admissions. Request for tLe Productior: of
Documents and Interrogatories. A true and correct copy of the Requests for Admissions are
attached hereto as Exhibit "A" and incorporated herein. A true and correct copy of the
Request for Production of Documents is attached hereto as Exhibit "B" and incorporated
herein.
4. Plaintiff served its Responses and Objections to Plaintiffs Rcquest for
Admissions and Request for Production of Documents on the llcCulloughs on or about
February 61 -'006. A true and correct copy of Plaintiffs Response to Delendauit Donald A.
AICCullough and Vicky C. McCullough's Request for Admissions Directed to Plaintiff is
attached hereto as Exhibit "C" and incorporated herein. Plaintiffs Response to Request for
Production of Documents and Things of Defendant Donald A. MCCullouP?lI and Vicky C.
McCullough Addressed to Plaintiff is attached hereto as Exhibit `'D" and incorporated
herein.
M
i
ot
on to Strike P laintiffs nhiect ionc to the
C
'
Mc
ulloudh
s Request s for Prnttnetian of Documents
Relati ng _to Pro duction of News letters
?. Paragraphs 1 throueh 4 are incorporated herein as if set forth in full.
6. The McCulloughs' Request for the Production of Documents contains the
following requests:
`d. All neitsletrers to residents in the Presb lori.m Homes. Incorporated
for the past 5 Nears.-
-6. All newsletters to residents prepared or distributed between Jatntarv
[991 and March 1992."
(hereinafter collectively- referred to as the `N'ewsletter Requests-)
7. Plaintiff objected to both of the Newsletter Requests. stating as to etch "PHI
objects to this request on the grounds that it is overbroad, Unduly burdcnsome and in that is
seeks documents not relevant to the facts or issues raised in this case nor Likely to lead to the
diseoverv of relev ant e vidence."
3, The Newsletter Requests are not overly broad.
9. The Newsletter Requests are not undul} burdensome because Plaintiff
produced and has complete controi over the requested documents.
10. The Newsletter Requests are rele ant and likely to lead to additional relevant
evidence because it is believed that the requested documents contain statements by Plaintiff
to Plaintiffs residents relating to the matters set forth in Plaintiffs Complaint and
Defendants' New Matter.
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough
respectfully request this Honorable Court to strike Plaintiffs objections to their Requests
for Production of Documents number 5 and 6 and Order Plaintiff to provide the requested
documents.
Mo tion to Strike Plaintiffs, Objections to he
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11. Paragraphs I through 10 are incorporated herein as if set forth in fill.
12. Preceding Plaintiff's responses to the McCulloughs' Requests for the
Production of Documents are three (3) general objections to the discovery of the requested
documents.
I Each of Plaintiffs responses to the 1,tcCull0ughs' individual requests
contains additional general objections or references to the general objecticns ref<,rzcd to in
Paragraph 12 above.
14. With respect to objections to requests for the production of documents.
Plaintiff is required to "identify all documents or things not produced or made mailable
because of the objection that they are not within the scope of permissible discovery under
Rule 4003.2 through Rule 4003.6 inclusive and Rule 4011(c). Documents or things not
produced shall be identified with reasonable particularity together with the basis for non-
production." Pa.R.C.P. 4009.12(b)(2).
I
15. Plaintiffs responses tc the MCCulloughs' Requests for tl,.e Production of
Documents do not identiA a single document the discover: of which Plairniff finds
objectionable.
16. Plaintiff has failed to object to the MCCulloughs' Requests for Production of
Documents as required underPa.C.R.P. 4009.12(b)(2).
17. Plaintiff has waived any and all objections to the discovery of the requested
documents.
WHEREFORE, Defendants Donald A. McCullough and Vicky C. iMCCullough
respectfully request this Honorable Court to strikc Plaintiffs objections to their Requests
for Production of Documems and Order Plaintiff to respond to the same without objection.
Motion to Compel Resnponws to
Requests for Production of Documents
is. Paragraphs 1 thrcu_*h 17 of this i%lotion are incorporated herein as if set
forth in full.
19. Pa.R.C.P. 4009.12(b) requires the party answering requests for the
production of documents to:
(1) Identify all documents or thins produced or made available;
? t
(2) Identify- all documents or things not produced or made available
because of the objection that they are not within the scope of permissible
discovery uncle, Rule 4003.2 through Ruse 4003.6 inelusiea turd Rule 4011(c).
Documents or things not produced shall be identified with reasonable pLrticuiarity
toi7ether with the basis for non-preduction.
(3) State that after reasonable investiantion, it has been determined that
there are no documents responsive to the request.
20. Plaintiffs responses in Exhibit "D" to the blcCulloushs' requests
numbered 1, 37 4. 7, 8, 9, 10, 11. 12, 13, & 14 state as to each numbered paragraph only
,I- ral objections and that it will produce requested documents not protected or
privileged for inspection and copying at a mutually a-rceable time and place.
21. Plaintiffs objections to Defendants requests for production of documents
are general and do not identify a single document or thing, the production of which
Plaintiff finds objectionable.
22. Plaintiffs responses to the MCCulloughs' Requests for Production of
Documents do not identify a single documents or thing to be made available as required
under Pa.R.C.P. 4009.12(b).
23. Out of fourteen (14) separate requests, Plaintiff only indicated as to one (1)
request that Plaintiff is unaware of the existence of any documents responsive to the
McCulloughs' requests.
24. Plaintiffs Responses and Objections to the McCulloughs' Request for the
Production of Documents and Things are unresponsive and do not cot-.:ply ;pith the
requirements of Pa.R.C.P. 4009.12(b).
WHEREFORE. Defendants Donald A. *N1cCullouah and Vicky C. McCullough
respectfully request this Honorable Court to strike Plaintiffs objections to their Requests
for Production of Documents and Order Plaintiff to provide full and adequate responses to
the Requests for Production of Documents.
Motion to Recognize Deemed Admissiims
25_ Paragraphs 1 through 24 are incorporated herein as if set forth in full.
26. each matter, the admission of which is requested "is admitted unless.
within thirty days after service of the request ...the party to whom the request was
directed serves upon the party requesting the admission an answer verified by the party or
an objection, signed by the party or the party s attorney ..." Pa.R.C.P. 4014(b).
27. Plaintiff is required in its answer to the bICCulloughs' Requests for
Admissions to "admit or deny the matter or set forth in detail the reason why the
answerin.- party cannot truthfully do so." Pa.R.C.P. 4014(b).
28. The McCulloughs' Request for Admission No. 1 requests that Plaintiff
admit "There are no writin-s other than the Agreement which form any part of a
contractual agreement between Plaintiff and Defendants with respect to the issues set
forth in Plaintiff s Complaint or the McCullough's New Matter."
29. Plaintiffs response purports to deny Request Number I stating "The
Agreement contains PHI'S right of first refusal. Other documents however, including the
correspondence between the parties to the Agreement and the various deeds, may be
useftd in interpreting or construing the Agreement and determining the parties' intent."
30. The McCulloughs' Request Number I asks Plaintiff to admit that there is
no other part of the contractual agreement, not whether or not there may exist parole
evidence useful in interpreting the Agreement.
31. Plaintiffs denial of Request Number 1 is based upon the existence of
parole evidence, not additional contracts agreements.
32. The McCulloughs' Request Number 1 should be deemed admitted for
failure of Plaintiff to adequately deny the request.
33. The McCulloughs' Request for Admission No. 5 requests that Plaintiff
admit "No part of the real property within Tract No. I other than the Private Residence is
t t
connected to Green Ride Lane through any road or path, either im, ro,ed or
unimproaed."
34. Plaintiffs response purports to deny Request Number i stating "Tract No.
I directly adjoins Green Ridge Lane on the north. south and end of Green Ridge Lane."
33. The McCullouahs' Request Number d clearly requests an admission that
no part of Tract No. 1 other than the Private Residence is connected to Green Ridge Lane
"through any road or path ..."
36. Plaintiff's denial is based upon the common border between Tract No. 1
and Green Ridge Lane and identifies no road or path.
37. The McCulloughs' Request Number 5 should be deemed admitted for
failure of Plaintiff to adequately deny the request.
38. The McCulloughs' Request for Admission No. 6 requests that Plaintiff
admit "All non-residential structures located upon Tract No. 1 have access to public
streets."
39. Plaintiff's response purports to deny Request Number 6 stating "Upon
reasonable inquiry, the information known to PHI or readily obtainable by PHI is
insufficient to enable PHI to admit or deny this request and therefore it is denied. PIIT
believes there may he physical or legal irnpediments that ma,r present access of the non-
residential structures to public streets. including state and local regulations."
40. Plaintiff ovens and operates a business abutting Tract No. 1. which uses
Green Ridge Lane as a route of ingress and egress to said business.
41. All non-residential structures and access thereto located upon Tract No. I
are clearly visible from Green Ridge Lane.
43. All points of access to the non-residential structures are clearly visible
tiom Centerville Road, a public road at the eastern end of Green Ridge Lane.
43. Any and all state and local regulations are public information, the
discovery or which is readily available to Plaintiff.
44. Plaintiff does have ready and unimpeded access to all information
necessary to admit or deny the McCulloughs' Request Number 6.
45. The iV[cCultoughs' Request Number 6 should be deemed admitted for
failure of Plaintiff to adequately deny the request.
46. The McCulloughs' Request for Admission No. 13 requests that. Plaintiff
admit -The Defendants offered to sell the Private Residence to Plaintiff.', the "Private
Residence" being a term defined to hate the same meaning as that set forth in the
MCCullouah's Neu Matter to Plaintiff's Complaint.
47. Plaintiff's response purports to deny Request Number 13 stating "Prior to
the conveyance of Tract No. 1 to Defendant Fos, Defendants did not offer the sell the
"Prig Lite Residence" as defined in the Requests for Admission. Accordingly, upon the
conveyance to Defendant Fos. the McCullough Defendants ?%ere in breach of the
December 30. 1991 Agreement. Further ansxecrine, Pill denies any aaerment or
implication that an offer to sell the "Private Residence" as defined in the Requests for
Admission, satisfies the MCCutlough Defendants' obligation under the December 30,
1991 Agreement. Under that Agreement, Pill's ritzht of first refusal cncompussed the
whole of Tract No. 1."
43. The tMcCulloughs' Request Number 13 does not limit the request as to
time frame or make any, legal conclusions regarding the ramifications of such action.
49. Plaintiffs denial only partially denies Request Number 13, denying the
matter only as to a particular time frame arbitrarily chosen b% Plaintiff and not contained
in the request.
50, Additionally, Plaintiffs response to Request Number 1: contains
numerous le,-al conclusions which are irrelevant as to the admission or dcnial of the
factual matter subject to the request for admission.
51. Plaintiffs have actual knowledge that "on or about Julv 29, 2005,
Defendants offered to sell to PHI the portion of Tract No. I that Defendants define as the
'Private Residence'." Plaintiff's Reply to Xew :Llatter of :McCullough L)efendants,
Paru,raph 56.
52. The McCulloughs' Request Number li should be deemed admitted for
failure or Plaintiff to adequately deny the request.
WHEREFORE, Defendants Donald A. McCullough and Vicky C. McCullough
respectfully request this Honorable Court to Order that their Requests for Admissions
N'um'bers 1. 5. 6 and 13 be deemed admitted.
Respectfully submitted,
SALZMANN HUGHES. P.C.
Cam-
B v:
David If. Martineau, Esquire
Attorney I.D. No. 84127
354 Alexander Spring Road, Ste 1
Carlisle, PA 17013
(717) 249-6333
Attorneys for Donald A. McCullough and
?' a Vicky C. McCullough, Defendants
Dated: G'
CERTIFICATE OF SERVICE
AND NOV. this2-3°2 dac of ;vinrch, 2006. I. David H. Martineau, of Sazmann
Hughes, P.C., counsel for the Plaintiff, hereby certify- that I screed a copy of the vvitrin
Defendant Donald A. McCullough and Vicky C. McCullough's i'vlotion to Deem
Requests for Admissions Admitted, Strike Objections and Compel Plaintiffs Responses
to Requests for the Production of Documents, this day by depositing the same in the
united States mail, postage prepaid, at Carliste, Pennsylvania, addressed to:
Helen L. Gemmill. Esquire
Sean P. Delaney, Esquire
McNees Wallace & Natick, LLC
100 Pine Street
P.O. Box 1166
Harrisbur", PA 17108-1166
Bryan Linsenbach, Esquire
Schrack & Linsenbach
124 West Harrisburg Street
PO Box 310
Dillsbur°-. PA 17019-0310
David H. Martineau, Esquire
PRESBYTERiA-" HOMES.
INCORPORATED.
Plaintiff
v.
DONALD A. MCCU[LOUGH and
VICKY C. MCCULLOUGH,
husband and "ife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF CONn,TON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
CIVIL ACTION - EQUITY
DOCKET NO. 2005-5400
RIJ E
AND NOW, thisM daa Of 2006, upon consideration of
Defendant Donald A. NICCull )U?d) 11 d 'icky C. .mcCullough's iVIotion to Deem
Requests for Admissions Admitted and Compel Plaintiff`s Responses to Requests for the
Production of Documei.ts and Request for Admissions, Plaintiff is hereby ordered to
show cause within days of service of this Rule why the relief requested in the
attached Motion should not be granted.
BY THE COURT:
AND NOW, this 4th day of April, 2006, I, David H. Martineau, of Salzmann
Hughes, P.C., counsel for Defendants Donald A. and Vicky C. McCullough, hereby
certify that I served a copy of the within Defendant Donald A. McCullough and Vicky C.
McCullough's Motion to Deem Requests for Admissions Admitted, Strike Objections
and Compel Plaintiff's Responses to Requests for the Production of Documents, this day
by depositing the same in the United States mail, postage prepaid, at Carlisle,
Pennsylvania, addressed to:
Helen L. Gemmill, Esquire
Sean P. Delaney, Esquire
McNees Wallace & Nurick, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Bryan Linsenbach, Esquire
Schrack & Linsenbach
124 West Harrisburg Street
PO Box 310
Dillsburg, PA 17019-0310
David H. Martineau, Esquire
EXHIBIT "C"
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff,
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 2005-5800
PLAINTIFF'S RESPONSE TO DEFENDANTS
DONALD A. MCCULLOUGH AND VICKY C. MCCULLOUGH'S
MOTION TO DEEM REQUEST FOR ADMISSIONS ADMITTED,
STRIKE OBJECTIONS AND COMPEL PLAINTIFF'S RESPONSES
TO REQUESTS FOR THE PRODUCTION OF DOCUMENTS
Plaintiff Presbyterian Homes, Incorporated ("PHI") respectfully submits this response
to the discovery motion ("Motion") filed by Defendants Donald A. McCullough and Vicky C.
McCullough (the "McCulldughs") and the Court's Rule dated March 28, 2006 (served on
April 4, 2006).
As discussed further below in response to each numbered paragraph of the Motion,
PHI served complete, adequate and timely responses to the McCulloughs' Requests for
Admission, and there is no basis to deem them admitted. PHI also asserted proper and
timely objections to the Requests for Documents, and there is no basis to deem the
objections waived. Accordingly, the McCulloughs' Motion should be denied.'
Response to Introductory Paragraphs of Motion
PHI admits that PHI filed its complaint on November 7, 2005.
2. PHI admits that the McCulloughs filed their answer and new matter on
January 6, 2006.
' PHI notes that the McCulloughs counsel did not seek concurrence in their Motion as
required by C.C.R.P. 208.3(a)(9). An effort by the McCulloughs' counsel to resolve this
discovery dispute may have obviated the need for a motion and this response.
f.ti.N f
1)
3. PHI admits that the McCulloughs served Interrogatories, Requests for
Admissions and Requests for Production of Documents on January 6, 2006. However,
contrary to the averments in the Motion, copies of the Requests for Admission and
Requests for Production of Documents were not attached as exhibits to the Motion served
upon PHI. Upon review of the Court's online docket, it appears that the McCulloughs also
did not attach copies to their Motion as filed with the Court. Attached hereto as Exhibit A is
PHI's Response to the Request for Production of Documents (the requests are set forth
verbatim in the response). Attached hereto as Exhibit B is PHI's response to the Requests
for Admission (the requests are set forth verbatim in the response).
4. PHI admits that PHI served its responses to the Interrogatories, Requests for
Admissions and Requests for Production of Documents on February 6, 2006. However,
contrary to the averments in the Motion, copies of PHI's responses to the Requests for
Admission or PHI's responses to the Requests for Production of Documents were not
attached as exhibits to the Motion served upon PHI. Upon review of the Court's online
docket, it appears that the McCulloughs also did not attach copies to their Motion as filed
with the Court. Accordingly, see Exhibits A and B attached hereto.
Response to Motion to Strike Objections To The McCulloughs'
Requests for Production of Documents Relating To Production of Newsletters
5. PHI incorporates the foregoing paragraphs 1 through 4 by reference.
6. PHI admits that the McCulloughs' document requests sought the production
of all newsletters to residents of PHI for the past 5 years and newsletters to residents
prepared or distributed between January 1991 and March 1992 (the "Newsletter
Requests").
2
PHI admits that it objected to the Newsletter Requests on the grounds that
the requests were overbroad, unduly burdensome, and sought documents not relevant to
the facts or issues raised in the case nor likely to lead to the discovery of relevant evidence.
8. PHI denies the McCulloughs' assertion that the Newsletter Requests are not
overbroad. During the time periods for which the newsletters are requested, PHI has
operated seventeen facilities and communities throughout the Commonwealth of
Pennsylvania. Each of these facilities and communities has a periodic newsletter (usually
monthly or bimonthly) that reports on the activities of the facility or community. The
newsletters generally include news of the residents (birthdays and anniversaries), upcoming
events (bingo nights, musical performances) and folksy tidbits (such as recipes, poems,
jokes or famous sayings). The Newsletter Requests are overbroad in that for a period
spanning over six years, the requests seek production of these numerous newsletters,
which are filled with information that has absolutely no bearing on the facts and issues in
this case.
9. PHI denies the McCulloughs' assertion that the Newsletter Requests are not
unduly burdensome and denies that PHI has complete control over the requested
documents. Any retained copies of the newsletters would generally be located at each of
the facilities and communities, not at PHI's corporate headquarters. PHI would have to
request that each of these facilities or communities locate and make copies of all of their
newsletters for a six year period (including newsletters dating back to 1991-1992).
Additionally, for some of PHI's facilities or communities, the newsletters are produced by
residents themselves. To obtain copies, PHI would likely have to identify and contact the
individual who prepared each newsletter. Those individuals may not have kept copies or
may no longer reside in the facility.
3
10. PHI denies the McCulloughs' assertion that the Newsletter Requests are
relevant. PHI is not aware of any statement in any newsletter that relates in any way to the
matters set forth in the pleadings in this case. This action is based upon a right of first
refusal contained in a December 30, 1991 Agreement between PHI and the McCulloughs.
Resident newsletters have absolutely no bearing on the factual or legal issues in this action.
The McCulloughs' fishing expedition for the production of newsletters may result in details
of the residents' holiday dinner menus, but will not result in the discovery of relevant
evidence in this litigation. Additionally, PHI's counsel presently has copies of the
Presbyterian Homes News for the period of 2001-2005 in counsel's office. The
Presbyterian Homes News is the newsletter that covers all of PHI's communities and
facilities, and generally contains human interest stories on the residents and requests for
charitable gifts. PHI's counsel also has copies of the Green Ridge Village newsletters (the
community adjacent to the property at issue in this case) that could be located for 2001-
2005. PHI was unable to locate copies of any of the Presbyterian Home News or Green
Ridge Village newsletters for the 1991-1992 time period in its files. Despite PHI's valid
objections to the production of these newsletters or any newsletters, counsel for the
McCulloughs is welcome to review these particular newsletters at the offices of PHI's
counsel, or is welcome to pay to have them copied and produced.
WHEREFORE, PHI requests that the Court deny the McCulloughs Motion to strike
PHI's objections to the Newsletter Requests and that the Court sustain PHI's objections.
Response to Motion to Strike Plaintiffs Objection to the McCulloughs'
Request for Production of Documents Generally
11. PHI incorporates the foregoing paragraphs 1 through 11 by reference.
4
12. PHI admits that it asserted the following three general objections to the
discovery of the requested documents, which PHI incorporated by reference or by repetition
in its response to specific requests:
A. PHI objects to the requests to the extent that all or any of them
call for production of documents or disclosure of information protected by the
attorney-client privilege, work product doctrine, accountant-client privilege or
any other privilege, immunity, or grounds that protect these documents from
disclosure.
B. PHI objects to the requests to the extent that they exceed the
scope of the Pennsylvania Rules of Civil Procedure and further object to the
extent that they seek to impose discovery obligations in excess of the
obligations under the Pennsylvania Rules of Civil Procedure.
C. To the extent further information is required, PHI expressly
reserves the right to supplement its response to any request herein.
13. PHI admits that it asserted additional objections or referenced the general
objections in its response to individual requests for production of documents. PHI's
objections were proper and valid. In particular, PHI properly objected to producing
documents that are protected by the attorney client privilege or work product doctrine.
14. PHI admits that the McCulloughs' Motion accurately recites the language of
Pa.R.C. P. 4009.12(b)(2).
15. PHI denies that its responses to the McCulloughs' document requests are
inadequate in any way. In its response, PHI agreed to produce all responsive documents,
except documents in response to the Newsletter Requests and except documents that are
privileged or protected based on the attorney client privilege, work product doctrine or other
applicable privilege. Those documents include communications between PHI and counsel
and counsel's files and were sufficiently identified in the responses. Moreover, PHI will
provide the McCulloughs' counsel with a log identifying all documents withheld from the
production at the time that the McCulloughs' counsel schedules for a review of the
documents.
5
16. PHI denies that it has failed to object as required by the Pennsylvania Rules
of Civil Procedure. PHI specified that the only documents that it was withholding from
production were the objectionable newsletters and documents protected by the attorney
client privilege, work product doctrine or other applicable privilege. Moreover, PHI will
provide the McCulloughs' counsel with a log identifying all documents withheld from the
production at the time that the McCulloughs' counsel schedules for a review of the
documents.
17. PHI denies that it has waived any or all objections to the discovery. PHI
properly and sufficiently asserted its objections in its timely responses to the discovery
requests, including specifying that it was withholding from production those documents
protected by the attorney client privilege, work product doctrine or other applicable privilege.
In particular, there is no basis for any finding that PHI waived the objections it asserted
based on privilege simply because it did not provide a log of the documents with the
response. See McGovern v Hospital Service Assoc. of Northeastern Pa., 785 A.2d 1012
(Pa. Super. 2002) (privilege not waived by failure to make timely objection to document
requests).
WHEREFORE, PHI requests that the Court deny the McCulloughs Motion to strike
PHI's objections and that the Court sustain PHI's objections.
Response to Motion to Compel Responses to
Request for Production of Documents
18. PHI incorporates the foregoing paragraphs 1 through 17 by reference.
19. PHI admits that the McCulloughs' Motion accurately recites the language of
Pa.R.C.P. 4009.12(b)(1) and (b)(2). PHI denies that the McCulloughs' Motion accurately
recites Pa. R.C.P. 4009.12(b)(3). The section quoted by the McCulloughs as (b)(3) is
actually (b)(5). Section 4009.12(b)(3) permits a party to specify a larger group of
6
documents from which the documents or things to be produced or made available may be
identified. PHI's responses satisfy 4009.12(b)(3) because they permit the McCulloughs to
identify the documents from the documents to be provided at a mutually agreeable time and
place. PHI denies that its responses were inadequate in any way.
20. PHI denies the McCulloughs' characterization of PHI's discovery responses.
The full responses are attached hereto as Exhibit A. PHI specifically denies that the
responses only state general objections. Rather, the responses include specific objections
based on privilege or work product protection and indicate that such protected documents
will not be produced.
21. PHI denies that its responses do not identify objectionable documents. In
particular, the responses identify documents protected by privilege or by the work product
doctrine as objectionable.
22. PHI denies that its responses are inadequate. As permitted under Pa. R.C.P.
4009.12(a)(2) and (b)(3), PHI's responses stated that the documents would be made
available and, upon inspection of the documents, the McCulloughs will be able to identify
the specific documents produced.
23. PHI admits that it has determined that it had no responsive documents only
with respect to the documents sought in the McCulloughs' Request No. 2.
24. PHI denies that its response was unresponsive and denies that the its
response did not comply with the requirements of the Pennsylvania Rules.
WHEREFORE, PHI requests that the Court deny the McCulloughs Motion to strike
PHI's objections and that the Court sustain PHI's objections.
Response To Motion To Recognize Deemed Admissions
25. PHI incorporates the foregoing paragraphs 1 through 24 by reference.
7
26. PHI admits that the McCulloughs' motion accurately recites a portion of Pa.
R.C.P. 4014(b) that requires a party to serve answers to requests for admission within thirty
days after service. Further answering, PHI served its answer to the Requests for
Admissions within thirty days.
27. PHI admits that Pa. R.C.P. 4014(b) requires a party to "admit or deny the
matter or set forth in detail the reason why the answering party cannot truthfully do so."
Further answering, PHI did so in PHI's response to the Requests for Admission.
28. PHI admits that the McCulloughs' Request for Admission No. 1 requests that
PHI admit that:
There are no writings other than the Agreement which form any part of a
contractual agreement between Plaintiff and Defendants with respect to the
issues set forth in Plaintiffs Complaint or the McCullough's New Matter.
29.. PHI admits that its response to Request for Admission No. 1 was a denial that
stated:
Denied. The Agreement contains PHI's right of first refusal. Other
documents however, including the correspondence between the parties to the
Agreement and the various deeds, may be useful in interpreting or construing
the Agreement and determining the parties' intent.
30. PHI admits that Request for Admission No. 1 reads as quoted above in
paragraph 28. PHI's response to the Request was complete, adequate and proper.
31. PHI admits that its response to Request No. 1 reads as quoted above in
paragraph 29. PHI's response to the Request was complete, adequate and proper.
32. PHI's response was complete, adequate and proper. It fairly meets the
substance of the requested admission and explains the qualification placed by PHI on the
answer as permitted under Pa. R.C.P. 4014(b). There is no basis to deem the request
admitted.
8
33. PHI admits that the McCulloughs' Request for Admission No. 5 requests that
PHI admit that:
No part of the real property within Tract No. 1 other than the Private
Residence is connected to Green Ridge Lane through any road or path,
either improved or unimproved.
34. PHI admits that its response to Request for Admission No. 5 was a denial that
stated:
Denied. Tract No. 1 directly adjoins Green Ridge Lane on the north, south
and end of Green Ridge Lane.
35. PHI denies that the McCulloughs' Request for Admission clearly pertained
only to connection by a road or path, since it referred to "improved or unimproved." PHI
clearly explained that the basis for its denial was that Tract No. 1 itself directly adjoined
Green Ridge Lane.
36. PHI's denial speaks for itself. PHI explained that the basis for the denial was .
that Tract No. 1 itself directly adjoined Green Ridge Lane.
37. PHI's response was complete, adequate and proper. It fairly meets the
substance of the requested admission and explains the qualification placed by PHI on the
answer as permitted under Pa. R.C.P. 4014(b). There is no basis to deem the request
admitted.
38. PHI admits that the McCulloughs' Request for Admission No. 6 requests that
PHI admit that:
All non-residential structures located upon Tract No. 1 have access to public
streets.
39. PHI admits that its response to Request for Admission No. 6 was a denial that
stated:
Denied. Upon reasonable inquiry, the information known to PHI or readily
obtainable by PHI is insufficient to enable PHI to admit or deny this request
and therefore it is denied. PHI believes there may be physical or legal
9
impediments that may prevent access of the non-residential structures to
public streets, including state and local regulations.
40. PHI admits that it owns and operates Green Ridge Village abutting Tract No.
1 that uses Green Ridge Lane as an access route.
41. PHI denies that the access to all structures is clearly visible from Green Ridge
Lane. Whether or not a non-residential structure has access to a road cannot be
determined solely by a physical inspection of the property by a layperson. Rather, the
existence of access involves legal, environmental and engineering determinations.
42. PHI denies that the access to all structures is clearly visible from Centerville
Road. Whether or not a non-residential structure has access to a road cannot be
determined solely by a physical inspection of the property by a layperson. Rather, the
existence of access involves legal, environmental and engineering determinations.
43. PHI admits that state and local regulations are public information that can be
obtained by PHI. PHI submits, however, that it is not reasonable that PHI be required to
undertake such a legal review, or that PHI retain engineering and environmental
consultants, in order to respond to a Request for Admission.
44. PHI denies that it has ready and unimpeded access to such information. PHI
would have to undertake extensive legal, engineering and environmental review in order to
determine access issues. PHI should not be forced to undertake such a review in response
to a Request for Admission.
45. PHI denies that the Request for Admission No. 6 should be deemed admitted.
Under Pa. R.C.P. 4014(b) permits a party to deny a request for admission if upon
reasonable inquiry, the information is not known to PHI or readily obtainable by PHI. PHI
properly denied Request for Admission No. 6 on this basis.
10
46. PHI admits that the McCulloughs' Request for Admission No. 13 requests
that PHI admit that:
The Defendants offered to sell the Private Residence to Plaintiff.
47. PHI admits that its response to Request for Admission No. 13 was a denial
that stated:
Denied. Prior to the conveyance of Tract No. 1 to Defendant Fox,
Defendants did not offer to sell the "Private Residence" as defined in the
Requests for Admission. Accordingly, upon the conveyance to Defendant
Fox, the McCullough Defendants were in breach of the December 30, 1991
Agreement. Further answering, PHI denies any averment or implication that
an offer to sell the "Private Residence" as defined in the Requests for
Admission, satisfies the McCullough Defendants' obligations under the
December 30, 1991 Agreement. Under that Agreement, PHI's right of first
refusal encompassed the whole of Tract No. 1.
48. PHI denies that Request for Admission No. 13 does not limit the request or
make any legal conclusions. This entire lawsuit revolves around whether the McCulloughs
breached their agreement granting PHI a right of first refusal. Whether or not the
McCulloughs "offered" the property subject to the right of first refusal requires a legal
determination. Moreover, after Tract No. 1 had been sold to Defendant Fox, the
McCulloughs were in breach and could no longer "offer" any or all of Tract No. 1 to PHI.
Accordingly, PHI's response denying Request for Admission No. 13 along with the
explanation of the reasons for that denial was proper, complete and adequate.
49. PHI denies that its response only partly denied Request for Admission No.
13. PHI denied that the McCulloughs offered to sell the property prior to the conveyance of
Tract No. 1. PHI also explained that upon conveyance of Tract No. 1 to Defendant Fox, the
McCulloughs were in breach of the right of first refusal. As such, after the conveyance, no
offer could be made to convey what the McCulloughs did not own, nor could the breach be
cured. As a result, PHI's denial addresses all time periods, both before and after the
conveyance.
11
50. PHI acknowledges that its denial to Request for Admission No. 13 contains
legal conclusions. Those legal conclusions, however, address the legal conclusion inherent
in the Request itself, namely that property was "offered" for sale. Property cannot legally be
offered for sale after it has been sold to a third party. Under Pa. R.C.P. 4014(a), requests
for admissions may seek applications of law to fact. PHI properly construed the
McCulloughs Request for Admission No. 13 as seeking such an application, and therefore
PHI responded with the relevant legal conclusions.
51. PHI denies the McCulloughs' characterization of PHI's response to Paragraph
56 of the McCulloughs' New Matter. Paragraph 56 of the McCulloughs' New Matter states:
"Defendants have offered to sell the Private Residence to Plaintiff." PHI's response to
Paragraph 56 states:
Admitted in part and denied in part. PHI admits that on or about July
29, 2005, Defendants offered to sell to PHI the portion of Tract No. 1
that Defendants define as the "Private Residence." PHI denies that
the offer to sell this portion of Tract No. 1 satisfies the McCullough
Defendants' obligations under the December 30, 1991 Agreement.
Further answering, in late 2003 the McCulloughs requested that PHI
make an offer to purchase all of the land owned by the McCulloughs.
PHI informed the McCulloughs that PHI was only interested in Tract
No. 1 and Tract No. 3. PHI proceeded to obtain an appraisal on Tract
No. 1 and Tract No. 3. The McCulloughs failed to present an appraisal
to PHI as required under the December 30, 1991 Agreement, so that
the price could be set by averaging each party's appraisal. The
McCulloughs also refused to accept PHI's appraised price as the price
for Tract No. 1 and Tract No. 3. The McCulloughs did not offer to sell
to PHI the portion of Tract No. 1 that Defendants define as the "Private
Residence" until after the McCulloughs entered into an agreement with
Harry Fox for the sale of the land that was subject to PHI's right of first
refusal.
PHI's response to Request for Admission No. 13 is proper and consistent with
its response to Paragraph 56 of the McCulloughs' New Matter.
52. PHI denies that the Request for Admission No. 13 should be deemed
admitted. PHI fully and completely responded in accordance with Pa. R.A.P. 4014(b).
12
WHEREFORE, PHI requests that the Court deny the McCulloughs Motion to deem
requests for admission admitted.
McNEES WALLACE & NURICK LLC
gy 1 / .
Helen L. Gemmill (ID No. 60661)
Sean P. Delaney (ID No. 85996)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Presbyterian Homes, Incorporated
Dated: April 17, 2006
13
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was served
this date first class mail, postage prepaid, upon the following:
James D. Hughes, Esq.
G. Bryan Salzmann, Esq.
E. Ralph Godfrey, Esq.
David H. Martineau, Esq.
SALZMANN HUGHES, P.C.
Suite 1
354 Alexander Spring Road
Carlisle, PA 17013
Brian C. Linsenbach, Esq.
SCHRACK & LINSENBACH
124 West Harrisburg Street
PO Box 310
Dillsburg, PA 17019
Helen L. Gemmill
Dated: April 17, 2006
.? I
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff,
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 2005-5800
PLAINTIFF'S RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS
AND THINGS OF DEFENDANTS DONALD A. MCCULLOUGH
AND VICKY C MCCULLOUGH ADDRESSED TO PLAINTIFF
Pursuant to Rule 4009.12 of the Pennsylvania Rules of Civil Procedure, Plaintiff
Presbyterian Homes, Inc. ("PHI") by counsel, hereby responds to the McCullough
Defendants' First Request for Production of Documents to PHI. These responses set forth
the information currently available to PHI and will be supplemented as appropriate.
GENERAL OBJECTIONS
PHI asserts and incorporates by reference the following general objections in its
response to each of the individual requests:
A. PHI objects to the requests to the extent that all or any of them call for
production of documents or disclosure of information protected by the attorney-client
privilege, work product doctrine, accountant-client privilege or any other privilege, immunity,
or grounds that protect these documents from disclosure.
B. PHI objects to the requests to the extent that they exceed the scope of the
Pennsylvania Rules of Civil Procedure and further object to the extent that they seek to
impose discovery obligations in excess of the obligations under the Pennsylvania Rules of
Civil Procedure.
r-?
C. To the extent further information is required, PHI expressly reserves the right
to supplement its response to any request herein.
Subject to the foregoing general objections, and without waiving the same, PHI
responds as follows to the Request for Production of Documents:
RESPONSE TO REQUESTS
1. All written statements (signed or unsigned), agreements, realtor files,
corporate files, corporate minutes, records of meetings, consents in lieu of meetings or
other records indicating any discussion or action by Plaintiffs stockholders or Board of
Directors, descriptions, statements, records, and written accounts concerning the matter set
forth in Plaintiffs Complaint or any Defendant's New Matter or Counterclaims.
Response: Subject to the foregoing general objections, PHI will produce any and all
documents for inspection and copying at a mutually agreeable time and place.
2. All bills, reports, and records from any and all investigation relating directly or
indirectly to the claims and allegations contained in Plaintiffs Complaint or any Defendant's
New Matter or Counterclaims.
Response: PHI objects to this request to the extent that it seeks information
protected by the attorney client privilege, the work product doctrine or any other privilege or
protection allowed by law. Subject to and without waiving this objection, PHI is not aware of
any responsive documents that are not privileged or protected.
3. All photographs and diagrams of any person, place, or thing which is directly
or indirectly related to the matter set forth in Plaintiffs Complaint or any Defendant's New
Matter or Counterclaims.
Response: Subject to the foregoing general objections, PHI will produce any and all
documents for inspection and copying at a mutually agreeable time and place.
4. All other writings, memoranda, data, and/or tangible things which relate
directly or indirectly or contain any comment on the land in question or to the incident and
damages set forth in Plaintiffs Complaint or any Defendant's New Matter or Counterclaims.
2
Response: PHI objects to this request to the extent that it seeks information
protected by the attorney client privilege, the work product doctrine or any other privilege or
protection allowed by law. Subject to and without waiving this objection and its general
objections, PHI will produce any and all documents not protected or privileged for inspection
and copying at a mutually agreeable time and place.
5. All newsletters to residents in the Presbyterian Homes, Incorporated for the
past 5 years.
Response: PHI objects to this request on the grounds that it is overbroad, unduly
burdensome and in that it seeks documents not relevant to the facts or issues raised in this
case nor likely to lead to the discovery of relevant evidence.
6. All newsletters to residents prepared or distributed between January 1991
and March 1992.
Response: PHI objects to this request on the grounds that it is overbroad, unduly
burdensome and in that it seeks documents not relevant to the facts or issues raised in this
case nor likely to lead to the discovery of relevant evidence.
7. Any and all reports compiled by an individual who has been retained as an
expert in this matter.
Response: PHI objects to this request on the grounds that it seeks information
protected by the attorney client privilege, the work product doctrine or any other privilege or
protection allowed by law. PHI also objects on the grounds that it seeks to impose
discovery obligations in excess of the obligations under the Pennsylvania Rules of Civil
Procedure. Subject to and without waiving this objection and its general objections, PHI will
produce the information required under Pa. Rule of Civil Procedure 4003.5 at an
appropriate time.
3
t
8. Any and all memoranda, notes, summaries, items of correspondence,
records, documents, or other form of data retention, not included in the foregoing requests
made by you or obtained by you or your representative or any witness, contained in your
files or other collections of records which pertain to the claims or allegations contained in
Plaintiffs Complaint or any Defendant's New Matter or Counterclaims.
Response: PHI objects to this request to the extent that it seeks information
protected by the attorney client privilege, the work product doctrine or any other privilege or
protection allowed by law. Subject to and without waiving this objection and its general
objections, PHI will produce any and all documents not protected or privileged for inspection
and copying at a mutually agreeable time and place.
9. Please produce copies of all documents identified in Plaintiffs response to
any interrogatories of any of the Defendants.
Response: Subject to the foregoing general objections, PHI will produce any and all
documents for inspection and copying at a mutually agreeable time and place.
10. Please produce copies of all documents received from the Defendants and
any other entity concerning the land and/or "the residence property" as alleged in the
Complaint or any Defendant's New Matter or Counterclaims.
Response: Subject to the foregoing general objections, PHI will produce any and all
documents for inspection and copying at a mutually agreeable time and place.
11. Please produce copies of all documents concerning the negotiations,
execution or implementation of the December 30, 1991 Agreement referred to in Paragraph
14 of the Plaintiffs Complaint.
Response: Subject to the foregoing general objections, PHI will produce any and all
documents for inspection and copying at a mutually agreeable time and place.
12. Please produce copies of all documents concerning your contention that the
"residence property" as referenced in the right of first refusal Agreement is the entire parcel
described as Tract No. 1 in the deeds dated May 15, 1991 and April 20, 1982.
4
r
S
Response: PHI objects to this request to the extent that it seeks information
protected by the attorney client privilege, the work product doctrine or any other privilege or
protection allowed by law. Subject to and without waiving this objection and its general
objections, PHI will produce any and all documents not protected or privileged for inspection
and copying at a mutually agreeable time and place.
13. Please produce copies of all documents, including all appraisals, concerning
Plaintiffs willingness to exercise its alleged right of first refusal for all four tracts and Tract
No. 1 as alleged in the Complaint.
Response: PHI objects to this request on the grounds that it mischaracterizes the
allegations of PHI's Complaint. PHI does not alleged that it possesses a right of first refusal
on all four tracts of land. Subject to the foregoing specific and general objections, PHI will
produce any and all documents with respect to its willingness to exercise its right of first
refusal for inspection and copying at a mutually agreeable time and place.
14. Any and all documents relating to any negotiations between Plaintiff and any
Defendant or Defendants relating to the negotiation or offer to purchase or offer to sell any
real property between January 1, 2002 and the date upon which Plaintiff filed its Complaint
in this matter.
Response: PHI objects to this request to the extent that it seeks information
protected by the attorney client privilege, the work product doctrine or any other privilege or
protection allowed by law. Subject to and without waiving this objection and its general
objections, PHI will produce any and all documents not protected or privileged for inspection
and copying at a mutually agreeable time and place.
McNEES WALLACE & NURICK LLC
By //-C L . (?
Helen L. Gemmill (ID No. 60661)
Sean P. Delaney (ID No. 85996)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Presbyterian Homes, Incorporated
Dated: February 6, 2006
Y
VERIFICATION
Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to
authorities, I hereby certify that I am authorized to make this verification on behalf of
Presbyterian Homes, Incorporated, that I have reviewed the foregoing and that the facts set
forth therein are true and correct to the best of my knowledge, information and belief.
n Homes, Incorporated
By
rnnreo name
Sa.ti? VP?Gro
Title
Dated: February l , 2006
r ?'1{{
J
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was served
this date first class mail, postage prepaid, upon the following:
James D. Hughes, Esq.
G. Bryan Salzmann, Esq.
E. Ralph Godfrey, Esq.
David H. Martineau, Esq.
SALZMANN HUGHES, P.C.
Suite 1
354 Alexander Spring Road
Carlisle, PA 17013
Brian C. Linsenbach, Esq.
SCHRACK & LINSENBACH
124 West Harrisburg Street
PO Box 310
Dillsburg, PA 17019
/,c. , c . fin,.-o
Helen L. Gemmill
Dated: February 6, 2006
I
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff,
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 2005-5800
PLAINTIFF'S RESPONSE TO DEFENDANT
DONALD A. MCCULLOUGH AND VICKY C. MCCULLOUGH'S
REQUEST FOR ADMISSIONS DIRECTED TO PLAINTIFF
Pursuant to Rule 4014 of the Pennsylvania Rules of Civil Procedure, Presbyterian
Homes, Inc., by counsel, hereby answers the Requests for Admission served by the
McCullough Defendants as follows:
GENERAL OBJECTIONS
PHI asserts and incorporates by reference the following general objections in its
response to each of the individual requests:
A. PHI objects to the requests to the extent that all or any of them call for
production of documents or disclosure of information protected by the attorney-client
privilege, work product doctrine, accountant-client privilege or any other privilege, immunity,
or grounds that protect these documents from disclosure.
B. PHI objects to the requests to the extent that they exceed the scope of the
Pennsylvania Rules of Civil Procedure and further object to the extent that they seek to
impose discovery obligations in excess of the obligations under the Pennsylvania Rules of
Civil Procedure.
? l
C. PHI reserves all proper objections to the materiality, relevance, and/or
admissibility of the subject matter of the responses provided to the Requests for Admission.
D. PHI objects to the definition of "Private Residence" to the extent that it is
intended to mean or imply that the area defined as the "Private Residence" is coextensive
with the property referenced as the "residence property" in the Agreement dated December
30, 1991.
E. To the extent further information is required, PHI expressly reserves the right
to supplement its response to any request herein.
Subject to the foregoing general objections, and without waiving the same, PHI
responds as follows to the Request for Admissions.
RESPONSE TO REQUEST FOR ADMISSIONS
1. There are no writings other than the Agreement which form any part of a
contractual agreement between Plaintiff and Defendants with respect to the issues set forth
in Plaintiffs Complaint or the McCullough's New Matter.
Response: Denied. The Agreement contains PHI's right of first refusal. Other
documents however, including the correspondence between the parties to the Agreement
and the various deeds, may be useful in interpreting or construing the Agreement and
determining the parties' intent.
2. The real property contained within the borders of Tract No. 1 located on the
north side of Green Ridge Lane does not physically touch the real property contained within
the borders of Tract No. 1 on the south side of Green Ridge Lane.
Response: Denied. A plotting of the deed to the property known as Green Ridge
Lane shows that Green Ridge Lane does not completely bisect or divide Tract No. 1.
2
3. The Private Residence is located within the borders of Tract No. 1.
Response: Admitted with qualification. The property defined in the Request for
Admissions as the "Private Residence" is located within the borders of Tract No. 1. Further
answering, the "Private Residence" is not coextensive with the "residence property"
referenced in the Agreement dated December 30, 1991.
4. The dwelling upon the Private Residence is connected to Green Ridge Lane
via an asphalt driveway.
Response: Admitted.
5. No part of the real property within Tract No. 1 other than the Private
Residence is connected to Green Ridge Lane through any road or path, either improved or
unimproved.
Response: Denied. Tract No. 1 directly adjoins Green Ridge Lane on the north,
south and end of Green Ridge Lane.
6. All non-residential structures located upon Tract No. 1 have access to public
streets.
Response: Denied. Upon reasonable inquiry, the information known to PHI or
readily obtainable by PHI is insufficient to enable PHI to admit or deny this request and
therefore it is denied. PHI believes there may be physical or legal impediments that may
prevent access of the non-residential structures to public streets, including state and local
regulations.
7. Other than Green Ridge Lane and the Private Residence, Tract No. 1 has
been used exclusively as a farm at all times from December 1, 1991 to November 7, 2005.
Response: Denied. Upon reasonable inquiry, the information known to PHI or
readily obtainable by PHI is insufficient to enable PHI to admit or deny this request and
therefore it is denied. PHI is not aware of all of the activities that may have occurred on
3
Tract No. 1 during that time period. PHI admits that farming operations have occurred on
Tract No. 1 during that time period.
8. The easement granted under the Agreement does not serve any portion of
Tract No. 1 other than the Private Residence.
Response: Admitted in part and denied in part. PHI admits only that the
Agreement dated December 30, 1991 states that "[t]he easement and right-of-way granted
herein shall be used only for the purpose of ingress and egress to the private residence of
Donald A. and Vicky C. McCullough." PHI denies any averment or implication that PHI's
right of first refusal under the Agreement is limited to any area less than the whole of Tract
No. 1.
9. The easement granted under the Agreement does not serve that portion of
Tract No. 1 that is used as a farm.
Response: Admitted in part and denied in part. PHI admits only that the
Agreement dated December 30, 1991 states that "[t]he easement and right-of-way granted
herein shall be used only for the purpose of ingress and egress to the private residence of
Donald A. and Vicky C. McCullough." PHI denies any averment or implication that PHI's
right of first refusal under the Agreement is limited to any area less than the whole of Tract
No. 1.
10. The Dwelling existed on December 30, 1991.
Response: Admitted to the extent that the definition of "Dwelling" contained in the
Requests for Admissions refers only to the house located on Tract No. 1.
4
t
;t
11. A portion of real property surrounding the Dwelling or approximately 4.4 acres
has been maintained in a manner typical of a residential yard and has not been used for
commercial farming operations at any time since December 30, 1991.
Response: Denied. Upon reasonable inquiry, the information known to PHI or
readily obtainable by PHI is insufficient to enable PHI to admit or deny this request and
therefore it is denied. PHI had not surveyed the portion of Tract No. 1 surrounding the
house and therefore cannot determine if the present area maintained as a residential yard is
approximately 4.4 acres in size. PHI is also not aware of the changes that may have been
made in the size of the area maintained as a residential yard since December 30, 1991.
12. The separation of and conveyance to Plaintiff of Green Ridge Lane
subdivided Tract No. 1 into thee [sic] portions, Green Ridge Lane and the parcels to the
north and south of Green Ridge Lane.
Response: Denied. A plotting of the deed to the property known as Green Ridge
Lane shows that Green Ridge Lane does not completely bisect or divide Tract No. 1.
13. The Defendants offered to sell the Private Residence to Plaintiff.
Response: Denied. Prior to the conveyance of Tract No. 1 to Defendant Fox,
Defendants did not offer to sell the "Private Residence" as defined in the Requests for
Admission. Accordingly, upon the conveyance to Defendant Fox, the McCullough
Defendants were in breach of the December 30, 1991 Agreement. Further answering, PHI
denies any averment or implication that an offer to sell the "Private Residence" as defined in
the Requests for Admission, satisfies the McCullough Defendants' obligations under the
December 30, 1991 Agreement. Under that Agreement, PHI's right of first refusal
encompassed the whole of Tract No. 1.
14. Plaintiff has not accepted Defendant's offer to sell the Private Residence to
Plaintiff.
5
Response: Admitted in part and denied in part. PHI admits only that it has not
accepted any offer to purchase the "Private Residence." Prior to the conveyance of Tract
No. 1 to Defendant Fox, Defendants did not offer to sell the "Private Residence" as defined
in the Requests for Admission. Accordingly, upon the conveyance to Defendant Fox, the
McCullough Defendants were in breach of the December 30, 1991 Agreement. Further
answering, PHI denies any averment or implication that an offer to sell the "Private
Residence" as defined in the Requests for Admission, satisfies the McCullough Defendants'
obligations under the December 30, 1991 Agreement. Under that Agreement, PHI's right
of first refusal encompassed the whole of Tract No. 1.
15. Plaintiff did not assert any right of first refusal relating to the entire property of
Tract No. 1 until June 28, 2005.
Response: Denied. Prior to June 28, 2005, PHI advised the McCullough
Defendants that PHI intended to exercise its right of first refusal to purchase Tract No. 1.
PHI obtained an appraisal to reflect the market valued of Tract No. 1. The McCullough
Defendants failed, however, to obtain an appraisal as required under the December 30,
1991 Agreement. Further answering, even if PHI had not advised the McCullough
Defendants that PHI intended to exercise the right of first refusal, inasmuch as the
McCullough Defendants failed to offer the entirety of Tract No. 1 to PHI as required in the
December 30, 1991 Agreement, PHI was not required to advise the McCullough
Defendants as to whether PHI desired to exercise its right of first refusal.
6
McNEES WALLACE & NURICK LLC
BY lj,, C.
Helen L. Gemmill (ID No. 60661)
Sean P. Delaney (ID No. 85996)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Presbyterian Homes, Incorporated
Dated: February 6, 2006
VERIFICATION
Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to
authorities, I hereby certify that I am authorized to make this verification on behalf of
Presbyterian Homes, Incorporated, that I have reviewed the foregoing and that the facts set
forth therein are true and correct to the best of my knowledge, information and belief.
Presbyterian Homes, Incorporated
By
Printed name
Se mr
Title
Dated: February (,, 2006
t f
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was served
this date first class mail, postage prepaid, upon the following:
James D. Hughes, Esq.
G. Bryan Salzmann, Esq.
E. Ralph Godfrey, Esq.
David H. Martineau, Esq.
SALZMANN HUGHES, P.C.
Suite 1
354 Alexander Spring Road
Carlisle, PA 17013
Brian C. Linsenbach, Esq.
SCHRACK & LINSENBACH
124 West Harrisburg Street
PO Box 310
Dillsburg, PA 17019
Helen L. Gemmtll
Dated: February 6, 2006
AND NOW, thisI?SIIA day of April, 2006, I, David H. Martineau, of Salzmann
Hughes, P.C., counsel for Defendants Donald A. and Vicky C. McCullough, hereby
certify that I served a copy of the within Defendant Donald A. McCullough and Vicky C.
McCullough's Motion to Make Rule to Show Cause Absolute, this day by depositing the
same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed to:
Helen L. Gemmill, Esquire
Sean P. Delaney, Esquire
McNees Wallace & Nurick, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Bryan Linsenbach, Esquire
Schrack & Linsenbach
124 West Harrisburg Street
PO Box 310
Dillsburg, PA 1 70 1 9-03 10
David H. Martineau, Esquire
PRAECH'E FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next:
_ Pre-Trial Argument Court
X Argument Court
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
----------------------------------------------
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
: DOCKET NO. 2005-5800
1. Matter to be argued: Defendant Donald A. McCullough & Vicky C. McCullough's Motion for
Judgment on the Pleadings
2. Identify counsel who will argue case:
(a) for Plaintiff: Helen L. Gemmill, Esquire`N"'
(b) for Defendant: James D. Hughes, Esquire
??• an G,.ne<nb<,?t,
(c) for Defendant: Deti?id-hl. oom, Esquire /d 1 /?<s? -'• i of s?i'? ?o, 6</ 3/?
?7 /ls6?l? ?A 3. I will notify all parties in writing within two days that this case has been
listed for argument.
SAL/ZZM-AANONN HUGHES, P.C.
By
James D. Hughes, Esquire
Attorney I.D. No. 58884
David H. Martineau, Esquire
Attorney I.D. No. 84127
354 Alexander Spring Road, Suite 1
Carlisle, PA 17013
(717) 249-6333
Attorneys for Defendants
Dated: April 25, 2006
i 4
,._ .
PRESBYTERIAN HOMES, : IN THE COURT OF COMMON PLEAS OF
INCORPORATED, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. : CIVIL ACTION - LAW
DONALD A. McCULLOUGH
and VICKY C. McCULLOUGH,
husband and wife, and HARRY
H. FOX, JR.,
Defendants NO. 05-5800 CIVIL TERM
ORDER OF COURT
AND NOW, this 4`h day of May, 2006, upon consideration of Defendants Donald
A. and Vicky C. McCullough's Motion To Deem Requests for Admissions Admitted,
Strike Objections and Compel Plaintiffs' Responses to Requests for the Production of
Documents, Plaintiffs' Response to Defendants Donald A. and Vicky C. McCullough's
Motion To Deem Requests for Admissions Admitted, Strike Objections and Compel
Plaintiffs' Responses to Requests for the Production of Documents, and Defendants'
Motion To Make Rule To Show Cause Absolute, a discovery conference is scheduled in
chambers of the undersigned judge for Wednesday, June 28, 2006, at 3:00 p.m.
elen L. Gemmil, Esq.
Sean P. Delaney, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorneys for Plaintiff
a
5.0
BY THE COURT,
viNveuq,OJ3d
?&Nncr) _T,kn,4, wno
£ i Z ltd Q,- kvw 40Dt
A8vj 40
Pla'vid H. Martineau, Esq.
354 Alexander Spring Road
Suite 1
Carlisle, PA 17013
Attorney for Defendants
,,Brian C. Linsenbach, Esq.
124 West Harrisburg Street
P.O. Box 310
Dillsburg, PA 17019
:rc
PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff
V.
DONALD A. MCCULLOUGH and
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUTNY, PENNSYLVANIA
CIVIL ACTION - EQUITY
05-5800 CIVIL
IN RE: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
BEFORE HESS, J., OLER, J., AND EBERT, J.
ORDER OF COURT
AND NOW, this 25th day of May, 2006, upon consideration of Defendants' Motion
for Judgment on the Pleadings, the briefs filed by the parties, and after Argument,
IT IS HEREBY ORDERED AND DIRECTED that the Defendants' Motion for
Judgment on the Pleadings is DENIED.
4.n9elen L. Gemmill, Esquire
Attorney for Plaintiff
,avid H. Martineau, Esquire
Attorney for Donald A. McCullough
And Vicky C. McCullough, Defendants
X ? rian C. Linsenbach, Esquire
Attorney for Harry H. Fox, Jr., Defendant
By the Court,
M. L. Ebert, Jr.,
A
J.
?? Vaud iflASNN?d rry?
9Z E Hd SE AN 90oz
BYTERIAN HOMES, IN THE COURT OF COMMON PLEAS OF
RPORATED, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
V. CIVIL ACTION - EQUITY
DON LD A. MCCULLOUGH and :
VICK C. MCCULLOUGH,
hush nd and wife; and
HARRY H. FOX, JR., NO. 2005-5800
Defendants
PRAECIPE TO ENTER APPEARANCE
TO
PROTHONOTARY:
Please enter the appearance of Susan V. Metcalfe and Kimberly M. Colonna of
Wallace & Nurick LLC as additional counsel on behalf of Presbyterian Homes,
in the above-referenced matter.
Respectfully submitted,
McNEES WALLACE & NURICK LLC
By
len L. ?Asg. 60661)
Kimberly M. Colonna (ID No. 80362)
Susan V. Metcalfe (ID No. 85703)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Presbyterian Homes, Incorporated
Dated
23, 2006
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
was served this date first class mail, postage prepaid, upon the following:
James D. Hughes, Esq.
G. Bryan Salzmann, Esq.
E. Ralph Godfrey, Esq.
David H. Martineau, Esq.
SALZMANN HUGHES, P.C.
Suite 1
354 Alexander Spring Road
Carlisle, PA 17013
Brian C. Linsenbach, Esq.
SCHRACK & LINSENBACH
124 West Harrisburg Street
P.O. Box 310
Dillsburg, PA 17019
Lvixa-c?- Su an V. Metcalfe
June 23, 2006
C-1 c'i Q
t_? ?' _n
L." 2 -..
f\ ? ?7
Q?
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C .?
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'.'I (A
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. Ln
PRESBYTERIAN HOMES, IN THE COURT OF COMMON PLEAS OF
INCORPORATED, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. ,
CIVIL ACTION - LAW
DONALD A. McCULLOUGH
and VICKY C. McCULLOUGH, :
husband and wife, and
HARRY H. FOX, JR.,
Defendants NO. 05-5800 CIVIL TERM
ORDER OF COURT
AND NOW, this 28th day of June, 2006, upon
consideration of Defendants Donald A. and Vicky C. McCullough's
Motion To Deem Requests for Admissions Admitted, Strike
Objections and Compel Plaintiffs' Responses to Requests for the
Production of Documents, Plaintiffs' Response to Defendants
Donald A. and Vicky C. McCullough's Motion To Deem Requests for
Admissions Admitted, Strike Objections and Compel Plaintiffs'
Responses to Requests for the Production of Documents, and
Defendants' Motion To Make Rule To Show Cause Absolute, and
following a discovery conference held on this date at which
Plaintiff was represented by Susan V. Metcalfe, Esquire,
Defendants Donald A. McCullough and Vicky C. McCullough were
represented by David H. Martineau, Esquire, and Defendant Harry
H. Fox, Jr., was not represented, and pursuant to an agreement
of counsel, it is ordered and directed as follows:
1. With respect to the Motion To Deem Requests for
Admissions Admitted, the issue of the effect of Plaintiff's
Answers to the Requests for Admissions is deferred to the trial
7
?'u
IL
judge in this case; and
2. With respect to the balance of Defendants'
motion, Plaintiff shall identify and provide contact
information for the publishers and/or committee heads of the
edition of "This 'N That" newsletter and provide the same to
Defendants within 15 days of this order.
By the Court,
isan V. Metcalfe, Esquire
100
P.O.
vid BH.ox 1Martineau, 166
Esquire
V7354 Alexander Spring Road ,
Ste 1
Carlisle, PA 17013 A
For the Defendants
Pine Street
Harrisburg, PA 17108E-1166
For the Plaintiff
pcb
8
PRESBYTERIAN HOMES, IN THE COURT OF COMMON PLEAS OF
INCORPORATED, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
V. CIVIL ACTION - EQUITY
DONALD A. MCCULLOUGH and :
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR., NO. 2005-5800
Defendants
PRAECIPE FOR RELEASE OF LIS PENDENS
TO THE PROTHONOTARY:
Please release the lis pendens filed for this action against the following real property:
BEGINNING at a rail monument in the South line of the Pennsylvania Railroad
Company right of way line, at the distance of 6.78 feet Southwardly from a point
in and measured at right angles to the line established as the center line of said
Railroad Company's railroad, Newville - Oakville Revision, said Place of
Beginning being also at the distance of 87.2 feet measured Eastwardly along
said Southerly line of said right of way line from another point therein at the
Easterly end of the Southerly abutment of Highway Bridge No. 0.29; extending
thence from said beginning point South 36 degrees 28 minutes East, partly by
land of said Railroad Company and partly by land now or formerly of A.D.
Laughlin, crossing the Northeasterly line of a Public Road, and partly along the
middle line thereof, 1421.5 feet to a railroad spike at a corner of land now or
formerly of Cyrus McCullough, thence south 53 degrees 50 minutes West, by
said last mentioned land, crossing the Southwesterly line of said Public Road,
1512.5 feet to a post at a corner of land now or formerly of Ellen A. Parker;
thence North 45 degrees 6 minutes West, partly by said last mentioned land
and partly by other land of the Pennsylvania Railroad Company, crossing Big
Spring, 2354.2 feet to a point at or near the Southwesterly corner of Big Spring
Bridge No. 29.2; thence the following three courses and distances by land of
said Railroad Company; (1) North 76 degrees 27 minutes East, recrossing said
Big Spring, 97 feet to a rail monument distant 105 feet Southwardly from a point
in and measured radially to the said center line of said railroad; (2) North 76
degrees 27 minutes East 595.4 feet to a rail monument distant 95 feet
Southwardly from a point in and measured radially to the said center line of said
railroad; and (3) North 81 degrees 14 minutes East, recrossing said Public
Road, 1386.9 feet to the Place of BEGINNING.
CONTAINING 71.734 Acres more or less.
EXCEPTING THEREFROM, however (1) that portion of the above tract
designated as Tract No. 2 in the Deed of C. Walter Ocker and Bertha S. Ocker,
his wife, to Edward J. Lehman, dated July 6, 1936, and recorded in the
Cumberland County Recorder's Office in Deed Book "X", Vol. 11, Page 227;
and (2) The tract of land conveyed by Donald T. McCullough and Helen G.
McCullough, his wife, to Presbyterian Homes, Inc., by deed dated September
30, 1976, and recorded in the office aforesaid in Deed Book V, Volume 26,
Page 78
BEING the same premises identified as Tract No. 1 in the deed dated April 5, 2005,
and recorded in Cumberland County, Pennsylvania on April 11, 2005, in Deed Book
268, Page 1707, granted and conveyed unto Harry H. Fox, Jr.
McNEES WALLACE & NURICK LLC
By a, L • L--A
Helen L. Gemmill (ID No. 60661)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Presbyterian Homes, Incorporated
Dated: January 31, 2008
2
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was
served this date first class mail, postage prepaid, upon the following:
James D. Hughes, Esq.
G. Bryan Salzmann, Esq.
E. Ralph Godfrey, Esq.
David H. Martineau, Esq.
SALZMANN HUGHES, P.C.
Suite 1
354 Alexander Spring Road
Carlisle, PA 17013
Brian C. Linsenbach, Esq.
SCHRACK & LINSENBACH
124 West Harrisburg Street
P.O. Box 310
Dillsburg, PA 17019
/ (' . rO
Helen L. Gemmill
Dated: January 31, 2008
d
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'tam
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PRESBYTERIAN HOMES,
INCORPORATED,
Plaintiff, :
V.
DONALD A. MCCULLOUGH and :
VICKY C. MCCULLOUGH,
husband and wife; and
HARRY H. FOX, JR.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 2005-5800
PRAECIPE FOR DISCONTINUANCE
TO THE PROTHONOTARY:
Please mark the above captioned action as settled, discontinued and ended with
prejudice, each party to bear its own fees and costs.
McNEES WALLACE & NURICK LLC
By
Helen L. Gemmill (ID No. 60661)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiff
Presbyterian Homes, Incorporated
Dated: January 31, 2008
r,
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was
served this date first class mail, postage prepaid, upon the following:
James D. Hughes, Esq.
G. Bryan Salzmann, Esq.
E. Ralph Godfrey, Esq.
David H. Martineau, Esq.
SALZMANN HUGHES, P.C.
Suite 1
354 Alexander Spring Road
Carlisle, PA 17013
Brian C. Linsenbach, Esq.
SCHRACK & LINSENBACH
124 West Harrisburg Street
P.O. Box 310
Dillsburg, PA 17019
Helen L. Gemmill
Dated: January 31, 2008