HomeMy WebLinkAbout06-2360
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DEMETRIOS S. TOULOUMES and
CONNIE A. TOULOUMES
Plaintiffs
vs.
No. Ot. . ';>3c':,O 4tJ
CIVIL ACTION - EQUITY
INJUNCTIVE RELIEF
KATHY SHAKESPEARE
Defendant
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action witma twenty days (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 by the
~uun "WIV,,' rw:w<:r nou~e ror any money Claimed III the complamt 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 CAt~ GET LEGAL
HELP.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, P A 17013
(717) 249.3166
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DEMETRIOS S. TOULOUMES and
CONNIE A. TOULOUMES
Plaintiffs
No.
(;Jt- . .;J Jt,tJ 6tJ
vs.
KATHY SHAKESPEARE
Defendant
CIVIL ACTION - EQUITY
INJUNCTIVE RELIEF
COMPLAINT TO ENJOIN OBSTRUCTION OF EXISTING ROAD OR
EASEMENT
AND NOW this 23rd day of April, 2006, comes Plaintiffs by and through their
attorney, Joseph D. Buckley, Esquire, and complains of Defendant as follows:
1. Plaintiffs were originally granted two tracts of land with improvements
thereon located in South Middleton Township, Cumberland County,
Pennsylvania from the estate of their late father, Spiro 1. Touloumes, by deed
dated June I, 1996 and recorded on June 24, 1996 in the office of the
Recorder of Deeds in and for the County of Cumberland in Deed Book 141,
Page 452. (A true and correct copy is attached and marked Exhibit "A")
2. Plaintiffs' father, Spiro J. Touloumes had acquired the said properties at
various times between 1958 and 1976 as more clearly set forth in the said
deed, and Plaintiffs and their family have been visiting the properties and
using the existing road at issue for over thirty years.
3. Defendant was granted land which is in close proximity to the Plaintiffs' lands
by deed dated March 2, 2006, and recorded in the Office of the Recorder of
Deeds in and for the County of Cumberland on March 3, 2006, in Deed Book
273, Page 1957. (A true and correct copy is attached and marked Exhibit "B").
4. Defendant uses the road way in question, Motter Lane, to access her property.
5. Prior to her purchase of the property, Defendant had been a tenant at the
property for a period of approximately eight years and had specific knowledge
and had witnessed Plaintiffs' repeated and continued use of the said roadway
as the access route to Plaintiffs' properties.
6. Prior to her purchase of her property and while she was a tenant at the
property, Defendant instructed her agent to improve the roadway leading from
her property to Plaintiffs' property.
7. Plaintiffs own two separate and distinct properties which are not contiguous to
each other; one which has a granted right of way, the other which was always
accessed by a "public road" formerly known as the road to Strickler's Ore Pit
or Mountain Road, and currently known as "Motter Lane."
8. The Cumberland County Tax Assessment Office has designated Plaintiffs'
two properties as Lot No. 29 and Lot No.2, and Defendant's property as Lot
No.3 on the Office's tax Map. A copy of the tax map is attached as Exhibit
"c" and the Plaintiffs have highlighted these respective Lots and also
highlighted the various roadways.
9. Plaintiffs' property as designated as Lot No.2 has a deeded right of way using
a roadway formerly known as Locust Lane.
10. Locust Lane has never been used by Plaintiffs as access to their property (Lot
No.2) and Plaintiffs' father rarely used this access.
II. Plaintiffs maintain a roadway which leads from their four acre property (Lot
No. 29) to their less than one acre property (Lot No.2).
12. Plaintiffs' property as designated as Lot No. 29 has no deeded right of way as
the road now known as Motter Lane was formerly a "public" road, and had
always been used as the method of accessing the property.
13. The darkened area on the northeast side of Motter Lane between Lot No.3
and Lot No. 29 is the site of the Ore Pit.
14. A 1983 Geological Survey Map of the Mount Holly Springs Quadrangle,
issued by the United States Department of the Interior, which utilized aerial
photography taken in 1968 and 1973, evidences the road now known as
Motter Lane leading from Red Tank Road to Plaintiffs' property (Lot 29), said
road passing Defendant's property. (A true and correct portion of the map is
attached and marked Exhibit Dl.)
15. Exhibits D2 and D3 are enlargements of Exhibit DI which more clearly show
the road ways, Red Tank Road and Motter Lane, together with the Ore Pit,
Plaintiffs' properties and Defendant's property.
16. Exhibit D3 has been enhanced by showing the approximate positions of
Plaintiffs' two properties, Defendant's property and the roadways at issue.
17. On March 14, 2006, Defendant hired an excavator to dig trenches across the
roadway at the end of Defendant's property and also on and across the road on
property not owned by Defendant, south of Defendant's property, and across a
portion of the road leading to Plaintiffs' property. Said trenches were several
feet wide and deep and precluded any vehicle from using the roadway.
18. On March 18,2006, Plaintiff Demetrios Touloumes met with Defendant at her
resident to discuss her unilateral action which precluded Plaintiffs from
accessing their property.
19. Defendant informed Plaintiff that she did not mean to obstruct his access and
had asked her friend to dig the trenches for possible storm water runoff
problems.
20. Plaintiff asked if she had obtained a permit from the state or local government
for storm water management after which Defendant informed Plaintiff that he
could fill in the trenches.
21. Defendant also reiterated that she understood Plaintiffs had the right to use the
road to access their property.
22. On March 22, 2006, Defendant and her agents blocked the lane with
construction vehicles and told Plaintiffs she was constructing a permanent
gate, and that Plaintiffs would have to find a new route to their property and
that Defendant was denying Plaintiffs the right to use the roadway.
23. Thereafter, Plaintiffs, through their attorney, contacted Defendant regarding
her proposed action informing her that she should not obstruct the raod and
also requested Defendant have her attorney contact Plaintiffs' attorney.
24. In April, 2006, Defendant constructed a gate across the roadway, but later
assured Plaintiffs that the gate would not be locked and that Plaintiffs would
have access to the roadway until this matter could be resolved.
25. Plaintiffs' attorney supplied Defendant's attorney with numerous historical
documents relating to the roadway, and Plaintiffs' and their predecessor's use
of the road to access their property.
26. On April, 18, 2006 Defendant placed a lock of the gate and would not provide
Plaintiffs with a key and placed boulders across the roadway.
27. Plaintiffs are unable to access their property using their automobiles unless the
roadway is unblocked and repaired.
28. Plaintiffs have requested that Defendant remove the obstruction so they may
utilize their properties, but Defendant and her counsel have refused to return
calls from Plaintiffs and their counsel.
29. Plaintiffs have attempted but can not access their property using the road.
30. Defendant actions are wanton and willful and have been motivated by no
lawful purpose.
31. The obstruction hinders Plaintiffs' full use and quiet enjoyment of the
property and also obstructs emergency vehicles from accessing the property.
32. From at least the 1950s until just recently the existing road was in full use and
unobstructed.
33. Plaintiffs' right to use the road and/or easement is clear and if the obstruction
is not immediately removed and Defendant enjoined from obstructing the lane
in the future, Plaintiffs will be immediately and irreparably harmed.
34. Defendant is also obstructing the raod and right of way for certain electric
compames.
WHEREFORE, Plaintiffs pray that this Honorable Court Enter a Preliminary
Mandatory Injunction directing Defendant to immediately remove the obstruction she
placed on the existing road or easement, issue a Permanent Mandatory Injunction
enjoining Defendant from any future obstruction of the existing road or easement and
because of her outrageous and willful action award Plaintiffs the costs of this action
including reasonable attorney fees.
Respectfully submitted,
7
Jo ph . B Ie
ttorney for the aintiffs
Supreme Court I. D. 38444
1237 Holly Pike
Carlisle, PA 17013
(171) 249-2448
VERIFICATION
Plaintiffs in this action, verify that the statements made in the foregoing Motion are true
and correct to the best of our knowledge and belief.
We understand that statements made herein are subject to the penalties of Title 18
Section 4904 relating to unsworn falsifications to authorities.
Date: A!Jril 23,2006
g.,- ./~
DEMETRIOS S.TOULOUMES
(I~~ 4-~
CONNIE A. TOULOUMES
EXHIBIT A
Toulou.de2
Parcel # 40-13-0126-029
Parcel # 40-13-0126-002
/15"'/ Y
MADE THE 1st day of June, in the year one thousand nine
hundred ninety six (1996)
BETWEEN DEAN TOULOUMES, of 253 Cumberland Street,
Harrisburg, Dauphin county, Pennsylvania 17102 and THOMAS N.
KaUNAS of 84 Silver Crown Road, Mechanicsburg, Cumberland County,
Pennsylvania 17055, Executors of the Estate of Spero J.
Touloumes, Grantor, Party of the First Part;
AND
DEMETRIOS S. TOULOUMES and CONNIE A. TOULOUMES, Husband and
Wife, of 260 Oak Grove, New Oxford, York County, Pennsylvania
17350, Grantee, Party of the Second Part;
WITNESSETH:
WHEREAS, Spero Touloumes, also known as Spero J. Touloumes,
and Eva N. Touloumes, his wife, during their lifetime, became the
owner of the following described property located in South
Middleton Township; and
WHEREAS, Eva N. Touloumes died on March 28, 1977, and title
to the subject premises vested in Spero Touloumes also known as
Spero J. Touloumes by operation of the law; and
WHEREAS, Dean Touloumes and Thomas N. Kounas are the
Executors of the Estate of Spero J. Touloumes as set forth in the
Office of the Register of Wills of Cumberland County,
Pennsylvania, at NO. 1995-00172.
NOW THIS INDENTURE WITNESSETH, that the said Dean Touloumes
and Thomas N. Kounas, Executors as aforesaid, for and in
consideration of the sum of Three Thousand and nO/l00 ($3,000.00)
Dollars, to them in hand paid as Executors by the said Demetrios
S. Touloumes and Connie A. Touloumes, at or before the sealing
and delivery hereof, the receipt of which is hereby acknowledged,
have granted, bargained, sold, aliened, enfeoffed, released and
confirmed, and by these presents do hereby grant, bargain, sell,
~bo~, 141 P~CE 452
alien, enfeoff, release and confirm unto the said Demetrios S.
Touloumes and Connie A. Touloumes, their heirs, executors and
assigns, all the following described property;
TRACT "1"
Middleton
described
: ALL THAT CERTAIN LOT OF MOUNTAIN LAND in South
Township, Cumberland County, Pennsylvania, bounded and
as follows;
BEGINNING at a corner of lands now or formerly of Mrs. Fannie
Hertzler and Jacob Strickler; thence by lands of the same, South
74 degrees West, 453.7 feet to a stone pile; thence by lands now
or formerly of W. S. Russell, North 2 degrees East, 387.8 feet to
a stone pile; thence by lands of Philip Brechbill, North 70
degrees 30 minutes East, 470.2 feet to a stone pile; thence by
lands of Mrs. Fannie Hertzler and Jacob Strickler, South 2
degrees West, 800.2 feet to the place of Beginning.
CONTAINING 4 acres, more or less, with concrete block hunting
cabin thereon.
BEING THE SAME PREMISES which Wilbur C. Handshew and Eldora R.
Handshew, his wife, John H. Lippert and Gertrude G. Lippert, his
wife, Ray E. Kelley and Kathline G. Kelley, his wife, James G.
Wickard and Helen G. Wickard, his wife, Charles H. Fisher, single
man, Allen Batman, single man, and Edward W. Zell and Margaret J>
Zell, his wife, by Deed dated and recorded December 6, 1958, at
Deed Book V-18, Page 180, transferred and conveyed a six-eighth
interest to Spero Touloumes and Eva N. Touloumes. Also the same
premises which Reuben L. Long and Margaret E. Long, his wife, by
Deed dated and recorded December 6, 1958, at Deed Book V-18, Page
183, transferred and conveyed a one-eighth interest to Spero
Touloumes and Eva N. Touloumes. Also the same premises which
Marion R. Lower and Annabel R. Lower, his wife, by Deed dated and
recorded December 6, 1958, at Deed Book V-18, Page 185,
transferred and conveyed a one-eighth interest to Spero Touloumes
and Eva N. Touloumes. Subsequently, Spero Touloumes and Eva N.
Touloumes, his wife, by Deed dated November 1, 1959 and recorded
May 23, 1960 transferred and conveyed a one-half interest to Paul
E. Smith and patricia F. Smith, his wife. Thereafter, Paul E.
Smith and patricia F. Smith, his wife, by Deed dated February 15,
1973 and recorded November 9, 1976 transferred their one-half
interest to Spero Touloumes and Eva N. Touloumes, his wife.
2
BOOK 141 PAGE 453
TRACT "2": ALL THAT CERTAIN tract of land situate in South
Middleton Township, Cumberland County, Pennsylvania, bounded and
described pursuant to a survey by Tom O. Bietsch, Registered
Surveyor, as follows:
BEGINNING at an iron pin and stone corner on the Western side of
a mountain road, said corner being 15 feet South of the original
North boundary of the Jacob Strickler tract; thence by land being
retained by the Grantor and in part along the Western side of
said Mountain Road; South 35 degrees West, and through a Chestnut
oak tree, 120 feet to an iron pin and stone corner; thence
continuing by land being retained by the Grantor, North 52
degrees 45 minutes West 186 feet to a white oak; thence by the
same, North 68 degrees 55 minutes West 194.5 feet to a stone
corner; thence by the same, North 36 degrees 55 minutes East, and
through a Maple Tree, 113 feet to an iron pin and stone corner;
thence by the same, and being 15 feet in a Southern perpendicular
distance from the Northern boundary of the Jacob Strickler tract
aforesaid, South 61 degrees 45 minutes East 374 feet to the Place
of Beginning.
CONTAINING .9 Acre, more or less; and being improved with a frame
cabin.
The above conveyance, where bounding the Western side
mountain road above mentioned, shall be confined to said
side and shall under no circumstances extend to the
thereof.
of the
Western
center
TOGETHER with a right-of-way in the Grantee, her heirs and
assigns for the purpose of ingress, egress and regress to said
tract of land over a strip of land lS feet wide as presently
existing in a Northeastern direction from the Northern line of
the above described tract to the Northern boundary of the Jacob
Strickler tract; said right-of-way beginning approximately 75
feet in an Easterly direction along the Northern line of the
above described tract, running thence in a Northeastwardly
direction, 15 feet, more or less, to the Northern line of the
Jacob Strickler tract.
3
BOOK i41 PAGE 454
TOGETHER also with the right of the Grantees to the free use, for
domestic purposes, of water from the spri:lg on land of the
Grantor situate to Westward of the above described tract, as
presently enjoyed, by the Grantees; said right to continue so
long as said spring is owned by the Grantor, and to te.rminate
thereafter.
IT WITNESS WHEREOF the said Executors have hereunto set their
hands and seals the day and year above written.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF
~-a_A. 'll ~ ~~
Dean TQuloumes, Executor
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Thomas N. Kaunas, Executor
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eoUK i41 PACE 455
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STATE OF PENNSYLVANIA
COUNTY OF DAUPHIN
On this, the 1st day of June, 1996, before me, the
undersigned officer, personally appeared, Dean Touloumes and
Thomas N. Kounas, Executors of the Estate of Spero J. Touloumes,
known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged
that she executed the same for the purpose therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
Notary Public
***************
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NOTARIAL SEAL
STEVE C. NICHOLAS. Notary Public
City of Harrisburg, Dauphin County
L.,~y CC01mhlSi,," Expires S6 1. 25. 1999
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CERTIFICATE OF RESIDENCE
I, hereby certify that the correct address and place of
residence of the grantee herein as follows:
260 Oak Grove, New Oxford, PA 17350
~/V (/1-..--."-,",
~tt6YnEY .~ Agent for Grantee
FOR RECORDING PURPOSES ONLY
****************
RECORDED in the Office for Recording of Deeds, in
the County of Cumberland in Deed Book \~\ , Volume L
l\SL.
WITNESS my Hand and Seal of Office, thi~day Of~,
1996. 0- '--
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Recorder ~ eeds
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and for
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Mia/:: 141 PACE 456
EXHIBIT B
MAR-23-1006
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1\0!lEflT p. ;:I::'CLER
RECORDER OF DE~OS
CU!1ilERLAMD COU:.: : - ?\
ZIii I'U\I\ 3 Rl'\ 1119u1S DEED
T-117 P 001/003 F-843
Pared No.: 40-13-0126-003
MADE TIlE 2" day ofM.vch in the year t1loo thr-."l'.y\ six (2006).
BETWEEN MRRY E. SCIIAERR,1IWl'iaI man. afRniI~ SpriDgs., CImIIla\aod CO\IIllY.
Pemuytvlmia, hereinafter ''''UI..! W 81:
~,
AND KA'DIY J:. SIIAI(I:8nA.U, siap ~ or BoiIiag Springs. ~
County, hr\nsytIIaDilI. haeislafter ,,,,,..<1 to..:
Gnutee,
WlTNESSE1li, tbldin r:. .n....eration ofPIFTY SIX lHOUSAND SIX HUNDRED FIFTY
AND NO/IOO ($56,650.00) DOLLARS in hmd pOI, tile ra:apt wbdeufis bat:by ~
the said Grutoc does honby grant aod conw:y w the _ Gr.btrlc. Iw hoin BOd asips:
AlL 1lIAT CE.IlTAIN IrIct of lIPId Iitutt in SClbth Middl1llDn Towoabip,
CumbaIaod County, PMDsyIwnia, bno.-..d md tIaai1Ied all follow.; t~ with
the: ~ c:teaed thcnlon:
BEGINNING*<< . poiDt in the mouiItaia ro8d w StridcHn ~ Baok, OD liDe orland
DOW 01' furiuaty ofTOIIl O. 8ieuch; tbeIlce by -lam. North 8 'A de8I- Eat
3135 fioet to. bhM:k oR tAle; tbmce by laud IIDW or filrmaty or RidIard L. ~CIt
ux., South 30 'A. ~..." East 234.5'" w. paiIlt in the afinSaid road; thaJa: in
saidfOlld, by1aud ooworfonoer:ly ofMn. Mya.,South 71 'h__WCIIt 195 fea
10 the I't.w;e afBEGlNNING.
CONTAINING .6 AJ;n;s, IIIOR: or I.....
BEING i.....-' with. dwalliDg Ioae known.. 330Molt<<l.ae, Rni~SpriIIp.
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T-777 P 002/003 f-843
MAR-23-2006 04:53AM fROM-
BElNG the JUne prordcs wbil::h Oamis L Ric::krode. by bia Deal dIlcd Sqltemhcr
5, 1985, and IllOOIdrd September 5, 19115, in the Of&e of'the bcordcs of'Dc:aIa of
Curobcrlaad COUDly, Pamaylvmia in Deed Book L Volume 3), PIce 121, gram
and oonveycd uoto Bany E. Schaefer, married men. Grutor hen:ia. lady A....... ~
joiM in tbill co~ to tm1Bft:t my idaat . may bfte in aid property by
virtue ofha' ~ to Bany E Sch8di:r:
SUBJECT, HOWEVER, to auch rewnlcd - -d>.. rSricl:iDaI mlaDliliooBth.t
may apply 10 the afu~ trKt orland.
AND the said GranIDn hadry ~ ucl 88JllO rhat !bey will wamnt sperWly the
JIlOflCrl)' bodJy CODw:yed.
IN WITNESS WHEREOF', slid GlwDton haft hr.n:wwo Id tbeir baDdJ llIlll K81slhed.y and
yar first .tKwe wt\nm.
SIGNED, SHALED AND DELIVEIUID
IN THE PRESENCE OF
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COUNTY OF CllMBElU..AND
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COMMONWEALTH OF PENNSYLV ANlA
On tbia, the Z" d.y ofMvch, 2006, bdOreme, tbe~ oBico-, pc:non&IIy ~
Barry E. Sc:Iw:&c and Jo4y A. Sc:Mrm, h..,...... _ wi&l,~ to me or.......... ....iiy prow:o to
be the JII'I*mS whole au-. ;Uti JUbecribed 10 the within ~ aod ICbowledgaf t/aIIt tbI:y
.,.-Cit>"'" the __ fOr tlIIIi puqIOIIelI_eiQ COdIiDaI.
IN WITNESS WHEREOf, I bcreulDo Id my had GIll ofIiciaI-'.
Of' ""NNSYlI/ "
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I hadJy co1ifY tb.t tho: pra;ix: ..-MI-v- ad ~ poIt ofJlce lid.... of the widJin
GrutAle is 130 Motta' l.-, Boiling Spriup, PtlmsyIvaDia 17007.
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DEMETRIOS S. TOULOUMES and
CONNIE A. TOULOUMES
Plaintiffs
No. tJ&-dJliJ L;~/L
vs.
KATHY SHAKESPEARE
Defendant
CIVIL ACTION - EQUITY
INJUNCTIVE RELIEF
MOTION FOR PRELIMINARY MANDATORY INJUNCTION
AND NOW, this 23rd day of April, 2006 comes Plaintiffs, by and through their
attorney, Joseph D. Buckley and moves that this Court issue a Preliminary Mandatory
Injunction against the Defendant based on the following:
I. Plaintiffs on even date herewith have filed a complaint in equity requesting a
permanent injunction enjoining Defendant from obstructing an existing road and right of
way which for a period exceeding forty years has been used by Plaintiffs and led from a
public road across a portion of Defendant's property to Plaintiffs' property, Plaintiffs
incorporate by reference the averments made in the said Complaint as though they were
more fully set forth herein.
2, On or about March 14, 2006, Defendant began obstructed an existing road
easement which has been used by Plaintiffs, their family and predecessors in interest for a
period in excess of twenty-one years.
3. Plaintiffs have repeatedly requested of Defendant that she refrain from blocking
the road and from interfering with Plaintiffs' right to use the road or easement, but in
spite of the request and her promises to so refrain, Defendant has intentionally dug
trenches and placed boulders across said road way or right of way and constructed a
permanent obstruction at the end of Defendant's property on the existing road and right
of way.
4. Plaintiffs have been without the free and full use of their property, their right to
unimpeded use is clear, and immediate and irreparable harm will result if the former
status quo is not maintained.
5. Pennsylvania's spring turkey season begins Saturday, April 29, 2006.
6. Defendant's willful and wanton actions were made for no lawful purpose and
have required Plaintiffs to expend moneys to enforce their clear rights.
WHEREFORE Plaintiffs pray this Honorable Court enter a Preliminary Mandatory
Injunction directing Defendant to immediately remove the obstruction she placed on the
right of way, require that Plaintiffs post no bond, and award Plaintiffs costs of this action
including reasonable attorney fees.
Respectfully submitted,
J D. Buckley, quire
Attorney for the Plaintiffs
Supreme Court I. D. 38444
1237 Holly Pike
Carlisle, P A 17013
(171) 249-2448
VERIFICATION
We, DEMETRIOS S. TOULOUMES and CONNIE A. TOULOUMES, the
Plaintiffs in this action, verify that the statements made in the foregoing Motion are true
and correct to the best of our knowledge and belief.
We understand that statements made herein are subject to the penalties of Title 18
Section 4904 relating to unsworn falsifications to authorities.
Date: April 23,2006
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DEMETRIOS S. TOULOUMES
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C NNIE A TOUr',OUMES
Demetrios S. Touloumes and
Connie A. Touloumes
Plaintiffs
v.
Kathy Shakespeare
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
06-2360 CIVIL
CIVIL ACTION - EQUITY
INJUNCTIVE RELIEF
ORDER OF COURT
AND NOW, this 27'h day of April, 2006, upon consideration of the Plaintiff's
Petition for Preliminary Injunction, IT IS HEREBY ORDERED AND DIRECTED that:
1. A rule is issued upon the defendant to show cause why the plaintiffs are not
entitled to the relief requested;
2. The Rule is returnable by the close of business May 2, 2006;
3. A copy of said answer will be filed with this Court;
4. A hearing shall be held on Wednesday, May 3, 2006, at 1 :30 p.m. in
Courtroom NO.5 of the Cumberland County Courthouse, Carlisle, Pennsylvania.
~ePh D. Buckley, Esquire
Attorney for Plaintiffs
Aarl Rominger, Esquire
Attorney for Defendant
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By the Court,
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M. L. Ebert, Jr.,
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DEMETRIOS S. TOULOUMES and:
CONNIE A. TOULOUMEAS,
Plaintiff : No. 06-2360 Civil
v.
: CIVIL ACTION -EQUITY
: INJUNCTIVE RELIEF
KATHY SHAKESPEARE
Defendant
DEFENDANT'S RESPONSE TO PLANTIFF'S MOTION FOR PRELIMINARY
MANDATORY INJUNCTION
AND NOW, comes Defendant Kathy Shakespeare, by and through her counsel,
Karl E. Rominger, Esquire and in support of her Response to Plaintiffs Motion for
Preliminary Mandatory Injunction avers as follows:
I. Plaintiff has requested a mandatory preliminary injunction.
2. The relief requested should only be granted if the right to relief is clear and
Plaintiff incorporates her answers to the Complaint in Equity as if fully
incorporated herein.(Attached)
3. Since the right to relief is not clear, insomuchas it is specifically denied in the
Complaint and because it will be proven at hearing that this "right-of-way"
has not been in continuous use, this Court should not grant the preliminary
relief.
4. It is averred that when the previous owner Rickrode owned the property,
Plaintiff did not have open egress, and further, when previous owner Sheaffer
owned the property said use was with license and permission of Sheaffer, and
therefore there is no privilege or permanent right of egress or ingress exists.
~
5. Further, Plaintiff has two (2) other points of ingress and egress which he may
use and as such has not been irreparably harmed.
WHEREFORE, Defendant respectfully requests that this Honorable Court deny
the relief requested.
Date: May 2, 2006
Respectfully submitted,
ROMINGER & WHARE
/~
/Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(7] 7) 241-6070
Supreme Court ID # 81924
Attorney for Defendant
DEMETRIOS S. TOULOUMES and:
CONNIE A. TOULOUMEAS,
Plaintiff : No. 06-2360 Civil
v. : CIVIL ACTION -EQUITY
: INJUNCTIVE RELIEF
KATHY SHAKESPEARE
Defendant
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Defendant, do hereby certify that I this
day served a copy of the DEFENDANT'S RESPONSE TO PLANTIFF'S MOTION
FOR PRELIMINARY MANDATORY INJUNCTION upon the following by
depositing same in the United States Mail, first class postage prepaid, at Carlisle,
Pennsylvania, addressed as follows:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PAl 70 13
Dated: May 2, 2006
Respectfully submitted,
ROMINGER & WHARE
...------.
K rl E. Rominger, Esquire
155 South Hanover Street
Carlisle, P A 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendant
DEMETRIOS S. TOULOUMES and:
CONNIE A. TOULOUMEAS,
Plaintiff : No. 06-2360 Civil
v. : CIVIL ACTION -EQUITY
: INJUNCTIVE RELIEF
KATHY SHAKESPEARE
Defendant
ANSWER TO COMPLAINT TO ENJOIN OBSTRUCTION OF EXISTING
ROAD OR EASMENT
1. Admitted.
2. Admitted in part and denied in part. It is denied that the existing road issue
has been used continuously for thirty (30) years and strict proof of the same is
demanded at trial.
3. Admitted.
4. Admitted.
5. Admitted. By way of further answer, the owner at the time Sheaffer
specifically allowed Plaintiffs to use this particular point of ingress.
6. Admitted in part and denied in part. It is admitted that portions of the
roadway were improved. It is denied that it was for the benefit of Plaintiffs
property.
7. Denied and strict proof of the same is demanded at trial. By way of further
answer, Plaintiff did not traditionally use Motter Lane but another lane which
ran parallel to Motter Lane and which Plaintiff has allowed to fall into
disrepair.
8. Admitted in part insomuchas the Exhibit speaks for itself.
9. Admitted.
10. After reasonable investigation answering Defendant can neither confirm nor
deny the allegations of this paragraph and strict proof of the same is
demanded at trial.
II. Admitted.
12. Denied. By way of further answer, it is a right-of -way parallel to Motter
Lane that was traditionally used.
13. Admitted.
14. Conclusion of an exhibit and it is denied. By way offurther answer, the
exhibit speaks for itself.
15. Conclusion of an exhibit and it is denied. By way of further answer, the
exhibit speaks for itself.
16. Conclusion of an exhibit and it is denied. By way of further answer, the
exhibit speaks for itself.
17. Admitted. By way of further answer, it was done to facilitate drainage.
18. Admitted.
19. Admitted in part and denied in part. It is admitted that at that point the
trenches were dug Plaintiff was not sure if she would continue to grant license
to Defendant to use this particular point of ingress.
20. Answering counsel is without sufficient information to admit or deny the
veracity of this paragraph and reserves the right to supplement after speaking
with answering Defendant and files this answer in order to meet time
deadlines for a Rule to Show Cause and emergency hearing in this matter.
21. Answering counsel is without sufficient information to admit or deny the
veracity of this paragraph and reserves the right to supplement after speaking
with answering Defendant and files this answer in order to meet time
deadlines for a Rule to Show Cause and emergency hearing in this matter.
22. Admitted.
23. Admitted.
24. Admitted in part and denied in part. It is admitted that a gate was constructed
across the roadway. It is denied that Plaintiffs would have unmitigated access
until the matter could be resolved.
25. Admitted.
26. Admitted.
27. Denied. By way of further answer, there are two (2) other routes which may
be utilized and which historically have been utilized.
28. Admitted in part and denied in part. It is admitted that Plaintiffs have
requested that the obstruction be removed. It is denied that Plaintiffs and
counsel are being ignored. By way of further answer, they are aware of
Defendant's position and have thus initiated this litigation.
29. Admitted. By way of further answer, Plaintiffs can access their property by
using their other two (2) accesses.
30. Denied. By way of further answer, as a landowner she is simply choosing to
exclude.
31. Denied as Plaintiffs still have full use and quiet enjoyment of their property.
32. Denied. By way of further answer, previous owner, Rickrode did not allow
Plaintiffs access through this right-of-way or across his land and by way of
further answer, it is specifically denied that any right-of-way exists for the
benefit of Plaintiffs.
33. Denied. By way of further answer, there are other methods to access this
property and in fact they have been used historically without issue.
34. Answering Defendant is without sufficient information to admit or deny the
veracity of this paragraph and strict proof of the same is demanded at triaL
WHEREFORE, Detendant prays this Honorable Court deny the relief to
Plaintiffs.
Date: May 2, 2006
Respectfully submitted,
ROMINGER & WHARE
,,---//
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Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA ] 7013
(717) 241-6070
Supreme Court ID # 8]924
Attorney for Defendant
DEMETRIOS S. TOULOUMES and:
CONNIE A. TOULOUMEAS,
Plaintiff : No. 06-2360 Civil
v.
: CIVIL ACTION -EQUITY
: INJUNCTIVE RELIEF
KATHY SHAKESPEARE
Defendant
CERTIFICATE OF SERVICE
I, Karl E. Rominger, Esquire, attorney for Defendant, do hereby certify that I this
day served a copy of the Answer to Complaint to Enjoin Obstruction of Existing Road
or Easement upon the following by depositing same in the United States Mail, first class
postage prepaid, at Carlisle, Pennsylvania, addressed as follows:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, P A 17013
Dated: May 2, 2006
Respectfully submitted,
ROMINGER & WHARE
2---
c/__
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Supreme Court ID # 81924
Attorney for Defendant
1- .-
f
.
Demetrios S. Touloumes and
Connie A. Touloumes
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
06-2360 CIVIL
CIVIL ACTION - EQUITY
INJUNCTIVE RELIEF
Kathy Shakespeare
Defendant
ORDER OF COURT
AND NOW, this 4th day of May, 2006, upon consideration of the Plaintiffs'
Petition, the Defendant's Answer thereto, and after hearing,
IT IS HEREBY ORDERED AND DIRECTED that the Plaintiffs' Application for
Preliminary Injunction is GRANTED in part and DENIED in part. The Plaintiffs' request
to have Defendant's gate across Motter Lane removed is hereby DENIED. The
Plaintiffs' request for use of Motter Lane to access their property is GRANTED and the
Defendant is ordered to provide the Touloumes' with a key to the lock on the gate. IT IS
FURTHER ORDERED that Defendant is enjoined from preventing Plaintiffs' use of
Motter Lane to access their properties.
As soon as possible, but no later than May 15, 2006, the Defendant will ensure
that the roadway in question is placed in such condition as to be routinely traversed by
Plaintiff's vehicles. After May 15, 2006, the parties shall equally share in the cost to
maintain that portion of Motter Lane which crosses, in part, Defendant's property in a
condition satisfactory for the passage of normal four wheel drive vehicles.
The Plaintiffs' request for attorney fees is DENIED.
~
.
IT IS FURTHER ORDERED AND DIRECTED that should both parties agree, this
order shall become the final order in this case and resolve the complaint filed by the
Plaintiffs' to Permanently Enjoin Obstruction of Existing Road or Easement currently
pending before the court without further litigation.
J<fseph D. Buckley, Esquire
Attorney for Plaintiffs
~ Rominger, Esquire
Attorney for Defendant
bas
By the Court,
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M. L. Ebert, Jr., J.
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DEMETRIOS S. TOULOUMES and
CONNIE A. TOULOUMES
Plaintiffs
No. 06-2360
vs.
KATHY SHAKESPEARE
Defendant
CIVIL ACTION - EQUITY
INJUNCTIVE RELIEF
PETITION FOR CONTEMPT
AND NOW this 18th day of May, 2006, comes Plaintiffs, by and through their
attorney Joseph D Buckley, Esquire, and petition that this Honorable Court hold
Defendant in Contempt of this Court's Order dated May 4,2006 based on the following:
1. Following a hearing held on May 4, 2006 relating to a Complaint and Motion
for Preliminary Injunction filed by Plaintiffs, the Court, by the Honorable
Judge M.L. Ebert, Jr. entered a Mandatory Preliminary Injunction against
defendant. (A true and correct copy of the Order is attached hereto as Exhibit
"A")
2. Said Order directs and orders defendant to "[a]s soon as possible, but no later
than May 15,2006, the Defendant (Cathy Shakespeare) will ensure that the
roadway in question is placed in such a condition as to be routinely traversed
by Plaintiffs vehicles."
3. As of May 17,2006, Defendant, in contempt of this court's order has refused
and failed to repair the roadway she had obstructed to such a condition to
permit Plaintiff to routinely traverse the same.
4. As of may 17,2006, Defendant has refused to begin any work to repair the
roadway in any way what so ever.
5. 5. Plaintiffs attempted to traverse the road way and damaged their vehicle
because the Defendant has refused to comply with the Court's Order.
6. Defendant is in contempt of Court.
7. Plaintiffs have been forced to expend funds to enforce the Court's Order.
WHEREFORE, the Plaintiffs request that the Court hold Defendant in contempt
of Court award Plaintiffs costs of this proceeding, costs for any damage to their
vehicle and any other fine or action which the Court deems right and just to
ensure Defendant complies with this Court's previous Order.
h D. uck y, Esquire
Attorney for the Plaintiffs
J.D. # 38444
1237 Holly Pike
Carlisle, P A 17013
(717)249-2448
JoeBLaw@aol.com
. .
EXHIBIT
"A"
Demetrios S. Touloumes and
Connie A. Touloumes
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
06-2360 CIVIL
Kathy Shakespeare
Defendant
CIVIL ACTION - EQUITY
INJUNCTIVE RELIEF
ORDER OF COURT
AND NOW. this 4th day of May, 2006, upon consideration of the Plaintiffs'
Petition, the Defendant's Answer thereto. and after hearing.
IT IS HEREBY ORDERED AND DIRECTED that the Plaintiffs' Application for
Preliminary Injunction is GRANTED in part and DENIED in part. The Plaintiffs' request
to have Defendant's gate across Motter Lane removed is hereby DENIED. The
Plaintiffs' request for use of Motter Lane to access their property is GRANTED and the
Defendant is ordered to provide the Touloumes' with a key to the lock on the gate. IT IS
FURTHER ORDERED that Defendant is enjoined from preventing Plaintiffs' use of
Motter Lane to access their properties.
As soon as possible. but no later than May 15, 2006. the Defendant will ensure
that the roadway in question is placed in such condition as to be routinely traversed by
Plaintiff's vehicles. After May 15, 2006, the parties shall equally share in the cost to
maintain that portion of Motter Lane which crosses. in part. Defendant's property in a
condition satisfactory for the passage of normal four wheel drive vehicles.
The Plaintiffs' request for attorney fees is DENIED.
IT IS FURTHER ORDERED AND DIRECTED that should both parties agree, this
order shall become the final order in this case and resolve the complaint filed by the
Plaintiffs' to Permanently Enjoin Obstruction of Existing Road or Easement currently
pending before the court without further litigation.
By the Court,
M. L. Ebert, Jr., J.
Joseph D. Buckley, Esquire
Attorney for Plaintiffs
Karl Rominger, Esquire
Attorney for Defendant
bas
VERIFICATION
We, DEMETRIOS S. TOULOUMES and CONNIE A. TOULOUMES, the
Plaintiffs in this action, verify that the statements made in the foregoing Petition are true
and correct to the best of our knowledge and belief.
We understand that statements made herein are subject to the penalties of Title 18
Section 4904 relating to unsworn falsifications to authorities.
Date: May 18, 2006
~~
DEMETRIOS S. TOULOUMES -
~ A--/~~
CONNIE A. TOULOUMES
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DEMETRIOS S. TOULOUMES and
CONNIE A. TOULOUMES
Plaintiffs
No. 06-2360
vs.
KATHY SHAKESPEARE
Defendant
CIVIL ACTION - EQUITY
INJUNCTIVE RELIEF
CERTIFICATE OF SERVICE
I, Joseph D. Buckley, Esquire, of The Law Offices of Joseph D. Buckley, do hereby
certify that I am this day serving a copy of the foregoing document upon the persons and
in the manner indicated below, which service satisfies the requirement of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States
mail, first-class postage prepaid as follows:
Karl E. Rominger, Esquire
155 South Hanover Street
Carlisle, PA 17013
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Demetrios S. Touloumes and
Connie A. Touloumes
Plaintiffs
v.
Kathy Shakespeare
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
06-2360 CIVIL
CIVIL ACTION - EQUITY
PETITION FOR CONTEMPT
ORDER OF COURT
AND NOW, this 23rd day of May, 2006, after review of the Plaintiffs Petition for
Contempt, the Court directs that counsel for the parties appear for a status conference
with this court on June 6, 2006 at 8:15 a.m.
~eph Buckley, Esquire
Attorney for Plaintiffs
~ Rominger, Esquire
Attorney for Defendant
bas
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M. L. Ebert, Jr.,
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Demetrios S. Touloumes and
Connie A. Touloumes
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
06-2360 CIVIL
CIVIL ACTION - EQUITY
INJUNCTIVE RELIEF
Kathy Shakespeare
Defendant
ORDER OF COURT
AND NOW, this 6111 day of June, 2006, upon consideration of the Plaintiff's
Petition for Contempt filed May 18, 2006, and after status conference with
counsel this date, and the Court physically viewing the road in question, to
include driving a standard two wheel drive minivan from the bottom of Motter
Lane to the area previously described during the hearing of May 3 - 4 2006, as
the "T", the following Findings of Fact are entered:
1. Motter Lane consists of an unimproved mountain road which is poorly
maintained.
2. Due to the contours of the mountain, Motter Lane serves as a drainage
swale for runoff from the surrounding land and as such is marked with numerous
areas of natural erosion.
3. The area where Motter Lane traverses the defendant's property is wet
and muddy as a result of natural water runoff.
4. Motter Lane is capable of being traversed without further improvement.
I ,
Therefore, IT IS ORDERED AND DIRECTED that the Plaintiffs Petition
for Contempt is DENIED. The Plaintiffs are authorized to make minor
improvements on that portion of Motter Lane where it traverses the Defendant's
property at their expense provided they do not alter drainage of natural water
runoff on Defendant's property.
By the Court
,'t~
M. L. Ebert, Jr., '"J.
Joseph Buckley, Esquire
Attorney for Plaintiffs
Karl Rominger, Esquire
Attorney for Defendant
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Demetrios S. Touloumes and
Connie A. Touloumes
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
: 06-2360 CIVIL
CIVIL ACTION. EQUITY
: INJUNCTIVE RELIEF
Kathy Shakespeare
Defendant
ORDER OF COURT
AND NOW, this 21st day of August, 2006, upon consideration qf the
request from both counsel in this matter, the Order of Court dated June 6, 2006,
shall be the final order in this matter and the case shall be considered: closed.
By the Court
~'\..
M. L. Ebert, Jr.,
Joseph Buckley, Esquire
Attorney for Plaintiffs
Karl Rominger, Esquire
Attorney for Defendant
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