HomeMy WebLinkAbout02-2048MARTIN L. CASSELL and
RACHELLE E. CASSELL,
husband and wife,
Plaintiffs
Vo
NORMAN D. LYBRAND, JR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002- ~ ~
DECLARATORY JUDGMENT
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 an 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
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
This Deed
Made this c~-0,~ day of ~e b ~ .,,~..~ ,2000, between Eli M. Dobrinoff, Jr. a
single person~ of 169 Stoney Run Road, Diilsburgt Pennsylvania, Gtnntor and
Martin Lester Cassell nnd Rachelle Elaine Cassell;husband and wife, of 167 Beetem
Hollow Road, Newville, .Pennsylvania, Grantees.
WITNESSETH, that in consideration of One Thousand Twenty ($120,000.00)
Dollars, in hnnd paid, the receipt whereof is hereby acknowledged, the said grantor
does hereby grant and convey to the said Grantees:
IT BEING a portion of the parcel of land located in Penn Township, Cumberland
County, nnd Pennsylvania. Containing 10.249 acres.
BEGINNING at a point in the centerline of Beetem Hollow Road, T-350, thence
South twenty-three (23) degrees eighteen (18) minutes ten (10) seconds West to a
point in the centerline of Beetem Hollow Road, T-350, thence North eighty-two (82)
degrees fifty-two (52) minutes fifteen (15) seconds East to a point along lands now or
formerly of David L. McGowan thence South five (5) degrees forty-five (45) minutes
zero (0) seconds East Four hundred ninety-five and forty-six hundredths (495.46)
feet South fifteen (15) degrees forty-eight (48) minutes and fifty (50) seconds East
One hundred twenty-four and eighty-three hundredths (124.83) feet to a point
thence South twelve (12) degrees fifty-six (56) minutes fifty-five (55) seconds East
Five hundred thirty-five and forty-one hundredths (535.41) feet to a point along
lands now or formerly of Gary E. Galbraith thence North eighty-two (82) degrees
.zero (0) minutes forty-five (.45) seconds East Three hundred forty-eight and eighty-
six hundredths (348.86) feet to a point land known as Lot#2 of said subdivision
thence North eight (8) degrees thirty-five (35) minutes zero (0) seconds West One
thousand seventy-two and one one hundredths (1072.01) feet to n point thence North
seventy-eight (78) degrees forty-five (45) minutes fifteen (15) seconds West Three
hundred ninety-four and eighty-seven hundredths (394.87) feet to a point thence
South eighty-two (82) degrees fifty-two (52) minutes fifteen (15) seconds WestTwo
hundred eleven and eighty-one hundreds (211.81) feet to the point and place of
BEGINNING.
IT BEING part of the final plan of minor subdivision for Eli IV[. Dobrinoff, Jr.,
prepared by registered land surveyor, Rodney Lee Decker, and recorded in the
Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 53,
Page 56.
IT BEING part of the parcel conveyed by Roy E. Kelso and Mary M. Kelso,
husband and wife, unto Ell M. Dobrlnoff, Jr. a single person, on May 1,1986 and
Recorded in the Office of the Recorder of Deeds in and for Cumberland County on
May 2, 1986. Recorded in Book W31, Page ~80.
SUBJECT TO nil RESTRICITONS and CONDITIONS previously recorded.
SUBJECT TO a Right-of'way along the EASTERN BORDER of Lot No. 1, above
described, for ingress, egress, and transgress for Lot No.2 along the EASTERN
BORDER, a width of $0 feet and a length of 1,072.01 feet.
AND the said Grantor does hereby warrant generally the property hereby
conveyed.
IN WITNESS WHEREOF, said grantor has hereunto set his hands and seals the
day and year first above written.
Signed, sealed and delivered in the presence of:
State of Pennsylvania
~V~. Dobrino--~T, Jr. ~ /L
County of Cumberland SS:
On this ~J,l.~ day of ~'~o,~..~ ~000, before me, the undersigned officer.
perso~nally appeared Eli M. Dobrinoff, Jr., a single person, known to me (o~
satisfactorily proven) to be the person whose name is subscribed to the wit~i
instrument, and acknowledged that he executed same for the purpose the~
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
I
named Grantees is:
Dated:
do hereby certify that the precise residence and complete address of the within
o
FEE-SIMPLB DEL~D~Typewricer
do.~ of in the ~ear of our Lord One
Thou:and Nine IIundred and Ninety (1990) .
ELI M. DOBRINOFF, JR., single person, of
York County, Pennsylvania, GRANTOR, party
of the first part
A N D
NORMAN D. LYBRAND, JR., of Cumberland County,
Pennsylvania, GRANTEE, party
o/t~,,u~o; ....SIXTY-EIGHT THOUSAND AND N0/100 ($68,000 00)
Dollar:, lawful mone~ ~ the United State, of ~meriea, w,'ll and trulu ~aid b~ the ,aid part y of the :econd
part to the :aid partV of the first part, at and before the sealing a~'deliver~ of the:e pretense, the receipt
whereof is hereby ae~owledged,- ........... has .................... granted, ba~alne~
:old, aliened, enfeo~ed, relea:ed, conve~ed, and con~rmed and by tkese prc:ent: do es grant, bargain, :ell,
alien, enfeo~ relea:e, convey, and con~rm unto the taid par~ of the :econd part his ..........
............... heir: and a::ign:, ~
ALL THAT CERTAIN tract or parcel of land situate, lying
and being in Penn Township, Cumberland County, Pennsylvania,
more particularly ~ounded and described as follows:
BEGINNING at a point in the center line of Beetem Hollow
Road, which said point of beginning is more particularly
located at the intersection of the center line of Beetem Hollow
Road and the dividing line between Lots Nos. 2 and 3 on the
Final Plan of Minor Subdivision for Eli M. 'Dobrinoff, Jr., here-
inafter more particularly referred to; THENCE, from said point
of beginning, along the dividing line between Lots Nos. 2 and
3 aforesaid, North 82 degrees 52 minutes 15 seconds East, a
distance of 209.97 feet to a point; THENCE, continuing along the
same, South 78 degrees 45 minutes 15 seconds East, a distance of
450.27 feet to a point; THENCE,. continuing along the same, South
07 degrees 59 minutes 15 seconds East, a distance of 1,103.57
feet to a point; THENCE, continuing along the same, North
82 degrees 00 minutes 45 seconds East, a distance of 609.18 feet
to a point on the westerly line of lands of Richard E. Titlow;
THENCE, from said point, along the westerly line of lands now or
formerly of Richard E. Titlow, South 12 deqrees 45 minutes
00 seconds East, a distance of 577.79 feet'to a point; THENCE,
from said point, along the westerly line of lands now or
formerly of Alfred Danner and Albert H. Shuller, South 12 degrees
38 minutes 10 seconds East, a distance of 964.20 feet to a point
on lands now or formerly of the Commonwealth of Pennsylvania;
THENCE, from said point along the northerly line of lands now or
formerly of the Commonwealth of Pennsylvania, South 83 degrees
Q3 minutes 05 seconds West, a distance of 1,875.45 feet to a
point; THENCE, from.said point, continuing along the same, North
10 degrees 45 minutes 20 seconds West, a distance of 381.27 feet
to a:point on the'southerly line of land now or formerly of
-continued-
Rainbow Gun Club; THENCE, from said point, North 40 degrees
02 minutes 25 seconds East, a distance of 1,153.10 feet to a
point; THENCE, from said point, continuing along the same,
North 23 degrees 34 minutes 40 seconds West, a distance of 364.22
feet to a point on the dividing line between Lots Nos. 1 and 2
on the aforesaid subdivision; THENCE, from said point, along the
dividing line between Lots Nos. 1 and 2, North 82 degrees
00 minutes 45 seconds East, a distance of 348.86 feet to a point;
THENCE, from said point, continuing along the same, North
08 degrees 35 minutes 00 seconds West, a distance of 1,072.01
feet to a point; THENCE, from said point, continuing along the
same, North 78 degrees 45 minutes 15 seconds West, a distance of
394.87 feet to a point; THENCE, continuing along the same, South
82 degrees 52 minutes 15 seconds West, a distance of 211.81 feet
to a point in the center line of Beetem Hollow Road; THENCE,
from said point, along the center line of Beetem Hollow Road,
North 23 degrees 18 minutes 10 seconds East, a distance of 1.20
feet to a point; THENCE, from said point, continuing along the
same, North 03 degrees 38 minutes 50 seconds East, a distance of
49.84 feet to a point, the point and place of BEGINNING.
CONTAINING 51.785 acres and being Lot No. 2 on the Final
Plan of Minor Subdivision for Eli M. Dobrinoff, Jr. prepared by
Rodney Lee Decker, Land Surveyor, dated March 2, 1987 and
recorded in Cumberland County Plan Book 53, Page 56.
TOGETHER WITH the full, free and uninterrupted private
right-of-way or easement for ingress, egress and ~egress over
Lot No. 1 on the aforesaid Subdivision Plan, which said right-
of-way extends fifty (50.00') feet in width in a westerly
direction from the easterly property line of Lot No. 1 and
runs parallel to the easterly property line of Lot No. 1 for
its entire length.
UNDER AND SUBJECT TO all restrictions, reservations, rights-
of-way and conditions as Set forth in Plan Book 53, Page 56.
ALSO, UNDER AND SUBJECT TO all restrictions, reservations,
and rights-of-way of redord or visible upon a view of the premises.
BEING A PORTION OF THE SAME PREMISES which vested in Eli M.
Dobrinoff, Jr. by deed of Troy W. Kelso, et ux. recorded in the
Office of the Recorder of Deeds of Cumberland County, Pennsylvania
in Deed Book W, Volume 31, Page 180.
SAIDIS
SHUFF, FLOWER
& LINDSAY
A~*AT~LAW
26W. High Street
Carlisle, PA
MARTIN L. CASSELL and,
RACHELLE E. CASSELL,
husband and wife,
Plaintiffs
NORMAN L. LYBRAND, JR.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002- 2048 CIVIL TERM
DECLARATORY JUDGMENT
NOTICE TO PLEAD
TO:
Martin L. Cassell and Rachelle E. Cassell
c/o Robert L. O'Brien, Esquire
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, PA 17013
You are hereby notified to plead to the enclosed New Matter and Counterclaim
within twenty (20) days from service hereof, or a default judgment may be entered against
yOU.
Date: September I 0,2002
SAIDIS, SHU~R & LINDSAY
~n51e)~f~/Defendant
Robert C. Saidis, Esquire
Supreme Court ID #21458
26 West High Street
Carlisle, PA 17013
(717) 243-6222
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATI~/~AT.LAW
26 W. High Street
Carlisle, PA
MARTIN L. CASSELL and,
RACHELLE E. CASSELL,
husband and wife,
Plaintiffs
NORMAN L. LYBRAND, JR.,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2002 - 2048 CIVIL TERM
:
: DECLARATORY JUDGMENT
:
: JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER
AND COUNTERCLAIM
AND NOW comes the Defendant, NORMAN L. LYBRAND, JR., by and
through his attorneys, Saidis, Shuff, Flower & Lindsay, and respectfully files this
Answer with New Matter and Counterclaim and thereof states the follows:
ANSWER
1. The averments of fact contained in paragraph 1 are admitted.
2. The averments of fact contained in paragraph 2 are admitted.
3. The avem~ents of fact contained in paragraph 3 are admitted.
4. The averments of fact contained in paragraph 4 are admitted.
5. The averments of fact contained in paragraph 5 are admitted in part and denied in
part. Defendant admits that Plaintiffs' property is subject to a fifty (50) foot right-
of-way wherein Plaintiffs' property is the servient tenement and Defendant's
property is the dominant tenement. Defendant further admits that he intends to
improve said right-of-way. Defendant denies any inference from the phrase
"build a slate or crushed stone road" to suggest that Defendant intends to place an
increased or unreasonable burden on said right-of-way.
SAIDIS
SHUFF, FLOWER
& LINDSAY
A~I'roIt~yS*AT*LAW
26 W. High Street
Carlisle, PA
6. The averments contained in paragraph 6 are conclusions of law to which no
response is required, however, if such response were required, Defendant
specifically denies such averments and demands strict proof at trial.
7. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averment and proof thereof is
demanded at trial. In further answer, Defendant denies any inference from the
averments contained in paragraph 7 that would suggest the intent of Mr.
Dobrinoff is different than as expressed in the Defendant's deed.
WHEREFORE, the Defendant, Norman D. Lybrand, Jr., respectfully requests
this Honorable Court to enter a judgment in his favor and against Plaintiffs in this matter,
together with costs and such other and further relief as this Court deems just and proper.
NEW MATTER
8. The Answers in paragraphs 1 through 7 are incorporated by reference as if fully
set forth herein.
9. Eli M. Dobrinoff, Jr., (hereinafter referred to as the Grantor), was the Grantor of
the tracts conveyed to the Plaintiffs and Defendant.
10. The conveyances by the Grantor were from the Final Plan of Minor Subdivision
for Eli M. Dobrinoff, Jr., dated March 2, 1987 and recorded in Plan Book 53,
Page 56A in the Office of the Recorder of Deeds in and for Cumberland County
(hereinafter referred to as Subdivision). A copy of the Subdivision is attached
hereto, made a part hereof and marked Exhibit "A".
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATroRI~YS*AT*LAW
26 W. High Street
Carlisle, PA
11. The deed from the Grantor to the Defendant for Lot No. 2 of the Subdivision,
although undated, was acknowledged August 17, 1990 and rdcorded August 17,
1990 in Deed Book 345, Page 734.
12. The Grantor's deed to the Plaintiffs for Lot No. 1 was dated February 8, 2000 and
recorded February 11, 2000, in Deed Book 216, Page 145.
13. Grantor granted and conveyed an Easement unto the Defendant, which is
specifically set forth in Exhibit "B" and provides as follows:
TOGETHER WITH the full, free and uninterrupted
private right-of-way or easement for ingress, egress and
regress over Lot No. 1 on the aforesaid Subdivision Plan,
which said right-of-way extends fifty (50.00') feet in width
in a westerly direction from the easterly property line of
Lot No. 1 and runs parallel to the easterly property line of
Lot No. l for its entire length.
14. The deed from the Grantor to the Plaintiffs specifically reserved the easement and
provides as follows:
SUBJECT TO a Right-of-way along the EASTERN
BORDER of Lot No. 1, above described, for ingress,
egress, and transgress for Lot No. 2 along the EASTERN
BORDER, a width of SO feet and a length of 1,072.01 feet.
15. The physical location of the easement is stated in clear and unambiguous terms in
the instrument creating said easement.
16. The purpose of the easement is stated in clear and unambiguous terms in the
instrument creating said easement.
17. By the clear and unambiguous terms in the instrument creating the easement at
issue, the Defendant received the right to use said easement without interference
from the Plaintiffs.
SAIDIS
SHUFF, FLOWER
& LINDSAY
A'g'rORNEYSsAT,LAW
26 W. High Street
Carlisle, PA
18. Defendant's intent to "build a slate or crushed stone road" is consistent with and in
furtherance of the clearly stated easement granted to the Defendant by the
Grantor.
WHEREFORE, the Defendant, Norman D. Lybrand, Jr., respectfully requests
your Honorable Court to enter a judgment in his favor and against the Plaintiffs, together
with costs.
COUNTERCLAIM
Defendant brings the following counterclaim against Plaintiffs, and in furtherance
thereof alleges as follows:
19. The Answers contained in paragraphs 1 through 7 and the New Matter contained
in paragraphs 8 through 18 are incorporated herein by reference as though fully
set forth at length.
20. The grant of easement set forth in paragraph 13 is the right to use said easement to
the exclusion of the Plaintiffs.
21. The rights so stated are derived from the clear and unambiguous language of the
easement granted by the Grantor to the Defendant.
22. The easement was created, granted and conveyed by the Grantor to Defendant by
reason of necessity arising from the mutual discovery by the Grantor and
Defendant immediately prior to the time of conveyance that the precise location
of access to Lot No. 2 on the Subdivision was blocked and obstructed by a
telephone pole and septic field.
23. In response to said circumstance Grantor and Defendant entered into negotiations
resulting in the granting unto the Defendant of the easement at issue.
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATI'OP. NEY~*AT.LAW
26 W. High Street
Carlisle, PA
24. Grantor intended, by reason of the easement, to grant to the Defendant all of the
fights, except fee ownership, to the area within the boundaries of said easement.
25. The grant of easement did not reserve any use to the Grantor nor provide that it
would be used in common with the owners of any other lots in the Subdivision.
26. To the contrary, the easement specifically provided that it would be "private".
27. The grant of easement to the Defendant was meant as an alternative to the fee
ownership shown on the Subdivision for access solely for the purpose of saving
the Grantor time and expense.
WHEREFORE, the Defendant respectfully requests your Honorable Court to
enter a judgment in his favor and against the Plaintiffs on his counterclaim and declaring
that to the Defendant the fight to use said easement to the exclusion of the Plaintiffs,
together with reasonable costs and such other further relief as your Honorable Court
deems just and proper.
Respectfully Submitted,
SAIDIS, SHUFF, F~.,LI2~R & LINDSAY
At/t oj;n¢~¢~//o r~ fe ndant
Ro~eft ~'. Saidis, Esquire
Su0reme Court ID# 21458
26 West High Street
Carlisle, PA 17013
(717) 243-6222
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND : ss
I verify that the statements made in this Answer With New Matter and
Counterclaim are true and correct. I understand that false
statements herein are made subject to the penalties of 18 Pa.
C.S. Section 4904, relating to unsworn falsification to
authorities.
DATED:
SAIDIS
SHUFF, FLOWER
& LINDSAY
A~rORNEYS*AT*LAW
26 W. High Street
Carlisle, PA
CERTIFICATE OF SERVICE
On this /~ day of September , 2002, I hereby
certify that I served a true and correct copy of the foregoing
Defendant's Answer With New Matter and Counterclaim upon all
parties of record via United States Mail, postage prepaid,
addressed as follows:
Robert L. O'Brien, Esq.
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, PA 17013
(Attorney for Plaintiff)
SAIDIS, SHUFF, FLOWER & LINDSAY
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATFORI~YSsATsLAW
26 W. High Street
Carlisle, PA
MARTIN L. CASSELL and, :
RACHELLE E. CASSELL, :
husband and wife, :
Plaintiffs :
:
v. : NO. 2002 - 2048
NORMAN L. LYBRAND, JR., : DECLARATORY JUDGMENT
Defendant :
: JURY TRIAL DEMANDED
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL TERM
ACCEPTANCE OF SERVICE
I, Robert C. Saidis, Esq., hereby accept service of th~
Complaint in the above-captioned matter this ~ day of June
2002.
B
· Saidis, Esq.
Supreme Court ID #21458
26 West High Street
Carlisle, PA 17013
(717) 243-6222
7
.:.'.t..~ .............
I
%./.
.) £' , a ,,
!'
Thou*aNd A'iae H#adred a~d Ninety (1990)
ELI M. DOBRINOFF, JR., single person, of
York County, Pennsylvania, GRANTOR, party
of the first part
A N D
NORMAN D. LYBRAND, JR., of Cumberland County,
Pennsylvania, GRANTEE, party
,] ~, ,.~ *[ .... SIXTY-EIGHT ~OUSAND AND NO/100 (068. 000.00) ..........
wkereof is herebg I~nowledged,- ........... has ....................
~old, allened, en~eo~ed, releued, co.~,esed, and co,~rm,.d a,d b.f thr:e prr~rnl~ do e8 grant, bargain, sell,
............... helrt a.d
ALLTHAT CERTAIN tract or parcel of land situate, lyino
and being in Penn Township, C~berl~n4 County, Pennsylvania,
more particularly bounded ~nd describe4 as follows:
BEGINNING at a point in the center
Road-
Rainbow Gun Club; THENCE, from said point, North 40 degrees
02 minutes 25 seconds East, a distance of 1,153.10 feet to a
point; THENCE, from said point, continuing along the same,
North 23 degrees 34 minutes 40 seconds West, a distance of 364.22
feet to a point on the dividing line between Lots Nos. 1 and 2
on the aforesaid subdivision; THENCE, from said point, along the
dividing line between Lots Nos. 1 and 2, North 82 degrees
00 minutes 45 seconds East, a distance of 348.86 feet to a point;
THENCE, from said point, continuing along the same, North
08 degrees 35 minutes 00 seconds West, a distance of 1,072.01
feet to a point; THENCE, from said point, continuing along the
same, North 78 degrees 45 minutes 15 seconds West, a distance of
394.87 feet to a point; THENCE, continuing along the same, South
82 degrees 52 minutes 15 seconds West, a distance of 211.81 feet
to a point in the center line of Bcetem Hollow Road; THENCE,
from said point, along the center line of Beetem Hollow Road,
North 23 degrees 18 minutes 10 seconds East, a distance of 1.20
feet to a point; THENCE, from said point, continuing along the
same, North 03 degrees 38 minutes 50 seconds East, a distance of
49.84 feet to a point, the point and place of BEGINNING.
CONTAINING 51.785 acres and being Lot No. 2 oil the Final
plan of Minor Subdivision for Eli M. Dobrinoff, Jr. prepared by
Rodney Lee Decker, Land Surveyor, dated March 2, 1987 and
recorded in Cumberland County Plan Book 53, Page 56.
TOGETHER WITH the full, free and uninterrupted private
right-of-way or easement for ingress, egress and ~egress over
Lot No. 1 on the aforesaid Subdivision Plan, which said right-
of-way extends fifty (50.00') feet in width in a westerly
direction from the easterly property line of Lot No. 1 and
runs parallel to the easterly property line of Lot No. 1 for
its entire length.
UNDER AND SUBJECT TO all restrictions, reservations, rights-
of-way and conditions as set forth in Plan Book 53, Page 56.
ALSO, UNDER AND SUBJECT TO all restrictions, reservations,
and rights-of-way of record or visible upon a view of the pr.~o~-
~H£Sdl~ ELI N. DOBRINOFF, JR., party of the first part,
for himself, his .......................................
,,~ p,,l y e! Ik, ,,,on4 p~rt, - ..... hi-s ..................... k,i,,
--he ...... l&,,a&~ ELI M. DOBRINOFF, JR., party of the first part, for
himself, his .....................................................
dad parcd thereo~
Tflg~iD ELI M. DOBRINOFF, JR., party of the first parC,
for himself, his .......................................
ro~ party ~ tla.,ondpurto - .......................... ~,&,aod a.~al, tAal
--he ...... t&,,a~ EL1 M. DOBRINOFF, JR., party of the first part, for
himself, his .....................................................
.................. ~h~ll and will, ~ thcoe pre,eats, W~RR~N~ ~ND FOREFER DgFEND
his
Signed, Se,,led and Delivered
in the Presence of
......
tht ,~id
COSI.MO.'~%%'EAL_TI! OF PENNSYLVANIA
................... ;' .............. ~-~ ........
.......................................................... · .-~.~..C..t~. ~ubli! , iii
....................................................................................................
~r, p~,~,~ll~ ~--~,r~ ELI ~. DOBRINOFF JR.
I.,// I .
OF PENNSYLVANIA
COUNTY,
In the Office for Recording of Deeds, Mortgages, etc. in and for the County
I ...................... ~ D.,~ ~Tk......~ .......... ~'o,...~...,..,..p.,,.-].~
H~nd .nd Se~! of Office, this .......................... L'...!..!.~ ............................................ d. or
-. .---~~ ...................... .A,.~_~ Dominl
MARTIN L. CASSELLand,
RACHELLE E. CASSELL,
husband and wi~,
Plaintiffs
VS.
NORMAN L. LYBRAND, JR.
Defendant
: IN THE COURT OF COMMON PLEAS
· ' CUMBERLAND COUNTY, PENNSYLVANIA
,.
..
..
: No. 2002 - 2048 CIVIL TERM
.-
: DECLARATORY JUDGMENT
: JURYTRIAL DEMANDED
REPLY TO NEW MATTErt
AND NOW comes the Plaintiffs, Martin L. Cassell and Rachelle E. Cassell, by
and through their attorneys, O'Brien, Baric & Scherer, and respectfully files this Reply
To New Matter and thereof states the following:
ANSWER
8. Admitted.
9. Admitted.
10. Admitted.
11. The correct place of recording is Deed Book S 34, page 734.
12. Admitted.
13. The purpose of the Declaratory Judgment Action is to have the Court determine
the scope of the use within the fifty-foot area where the easement is located.
14. The purpose of the Declaratory Judgment Action is to have the Court determine
the scope of the use within the fifty-foot area where the easement is located.
15. The purpose of the Declaratory Judgment Action is to have the Court determine
the scope of the use within the fifty-foot area where the easement is located.
16. The purpose of the Declaratory Judgment Action is to have the Court determine
the scope of the use within the fifty-foot area where the easement is located.
17. It is denied that the Defendants have an absolute right to use the property. The
rules of construction in determining the scope of the easement are shown from
the language of the grant construed with reference to the circumstances known
to the parties at the time the grant was made.
18. The Plaintiff incorporates the response in paragraph 17 herein.
WHEREFORE, the Plaintiff respectfully requests that the Honorable Court construe
the scope of the easement in conjunction with the language of the grant and the intention
of the parties when the grant was created.
22.
23.
24.
ANSWER TO COUNTERCLAIf.'.
19. Without admitting the truth or relevance of the answers, the Plaintiff does admit
that the same have been filed.
20. It is denied that the Defendants have an absolute right to use the property. The
rules of construction in determining the scope of the easement are shown from
the language of the grant construed with reference to the circumstances known
to the parties at the time the grant was made.
21. It is denied that the Defendants have an absolute right to use the property. The
rules of construction in determining the scope of the easement are shown from
the language of the grant construed with reference to the circumstances known
to the parties at the time the grant was made.
Admitted.
Admitted.
It is denied that the Defendants have an absolute right to use the property. The
rules of construction in determining the scope of the easement are shown from
the language of the grant construed with reference to the circumstances known
to the parties at the time the grant was made.
25. It is denied that the Defendants have an absolute right to use the property. The
rules of construction in determining the scope of the easement are shown from
the language of the grant construed with reference to the circumstances known to
the parties at the time the grant was made.
26. It is denied that the Defendants have an absolute right to use the property. The
rules of construction in determining the scope of the easement are shown from
the language of the grant construed with reference to the circumstances known to
the parties at the time the grant was made.
27. It is denied that the Defendants have an absolute right to use the property. The
rules of construction in determining the scope of the easement are shown from
the language of the grant construed with reference to the circumstances known to
the parties at the time the grant was made.
WHEREFORE, the Plaintiff respectfully requests that the Court construe the
scope of the easement in conjunction with the language and the intention of the Parties
when the grant was made.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
Rob~ ~.' O Brien, Esquire
Attorney for
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
I verify that the statements made in the foregoing Reply To New Matter and Answer To
Counterclaim are true and correct to the best of my knowledge, information and belief. This
verification is signed by Robed L. O'Brien, Esquire, attorney for Plaintiffs and is based upon
statements provided by the Plaintiffs and other persons, as well as documents reviewed by the
undersigned as attorney for Plaintiffs. This verification will be substituted and ratified by a
verification signed by one or both of the Plaintiffs who are presently unavailable to sign said
verification. I understand that false statements herein are made subject to the penalties of 18 Pa.
C.S. § 4904, relating to unsworn falsification to authorities.
Robert L. O'Brien, Esquire
Dated:
VERIFICATION
We verify that the statements made in the foregoing Reply To New Matter and Answer To
Counterclaim are true and correct. We understand that false statements made herein are made
subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities.
Martin L. Cassell
Rachelle E. Cassell
Date:
rob/clients/cassell I. reply
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATrORI~YS*AT*LAW
26 W. High Street
Carlisle, PA
Martin L. Cassell and
Rachelle E. Cassell,
Husband and wife,
Plaintiffs
Vo
Norman L. Lybrand, Jr.
Defendant
In the Court of Common Pleas
Cumberland County, Pennsylvania
No. 2002-2048 Civil Term
Declaratory Judgment
Jury Trial Demanded
NOTICE OF ORAL DEPOSITION
TO: Eli Dobrinoff
169 Stoney Run Road
Dillsburg PA 17019
PLEASE TAKE NOTICE that pursuant to Pennsylvania Rules of Civil
Procedure, Rule 4007.1, et seq. the Defendamt in the above-captioned matter
will take the oral deposition of Eli Dobrinoff, for the purpose of discovery or
for the use at trial, or for both purposes, before a person authorized to render
an oath at the office of SAIDIS, SHUFF, FLOWER /~ LINDSAY, 26 West High
Street, Carlisle Pennsylvania, at 9:00 a.m., on Wednesday, April 30,
2003, on all matters not privileged which are relevant and material to the
issues and subject involved in the above-captioned action. Please bring with
you all records pertaining in any way to property formerly owned by you,
which had been sold to either Norman Lybrand, Jr. or Martin L. Cassell and
Rachelle E. Cassell.
Date:
By:
Saidis, S, ff,,F .}e~, er & Lindsay,
· '-' g, q 'e
Supreme Ct. I.D. #77851
26 West High Street
Carlisle, PA 17013
Phone: (717) 243.6222
Attorney, for Defendant
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATrOP, I~YS*AT*LAW
26 W. High Street
Carlisle, PA
Martin L. Cassell and
Rachelle E. Cassell,
Husband and wife,
Plaintiffs
vi.
Norman L. Lybrand, Jr.
Defendant
In the Court of Common Pleas
Cumberland County, Pennsylvania
No. 2002-2048 Civil Term
Declaratory Judgment
Ju.ry Trial Demanded
CERTIFICATE OF SERVICE
On this 11th day of April, 2003, I, Kirk S. Sohonage, Esquire, hereby
certify that I served a true and correct copy of the within Notice of Oral
Deposition upon counsel for PLAINTIFFS in this :matter by depositing same in
the United States mail, first class, postage prepaid, addressed as follows:
Robert L. O'Brien, Esquire
O'BRIEN, BARIC ~ SCHERER
17 West South Street
Carlisle PA 17013
By:
Saidis, Shuff, F~.er & Lindsay