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HomeMy WebLinkAbout06-5269 JOHN M. WRITTEN and TERRI L. W IITTEN, his wife, and JAIME L. McCOY (REISINGER), Plaintiffs V. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA No. 04-5-Q41 cl l tort ANTHONY G. CARDONE and FRANCINE A. CARDONE, f S a v1 re defendants 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 DC 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, PA 17013 TELEPHONE: 717-249-3166 JOHN M. WHITTEN and TERRI L. WHITTEN, his wife, and JAIME L. McCOY (REISINGER), Plaintiffs V. ANTHONY G. CARDONE and FRANCINE A. CARDONE, {?S Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, : PENNSYLVANIA No. Q?? 569 GJ?r1 -?crM COMPLAINT AND NOW, come the Plaintiffs, JOHN M. WHITTEN and TERRI L. WHITTEN his wife, and JAIME L. McCOY (REISINGER), and by their counsel, John Havas, aver and state as follows: 1. Plaintiffs are John M. Whitten and Terry L. Whitten, his wife, of 630 Conodoguinet Avenue, Carlisle, Cumberland County, Pennsylvania 17013, and their daughter, Jaime L. McCoy (now Jaime Reisinger) of 610 Conodoguinet Avenue, Carlisle, Cumberland County, Pennsylvania 17013 2. Defendants are Anthony G. Cardone (Cardone), also known as Tony Cardone, and Francine A. Cardone, husband and wife, adult citizens of Cumberland County, Pennsylvania, who reside at 720 Conodoguinet Avenue, Carlisle, Cumberland County, Pennsylvania 17013. 3. Plaintiffs have been at all times pertinent hereto, and still are, the owners in Fee Simple of the certain tract of real property located at 610 Conodoguinet Avenue, in North Middleton Township, Cumberland County, Pennsylvania, and more particularly described as set forth in Exhibit A which is attached hereto and made a part hereof, and which is hereinafter referred to as "the Property". 4. The abstract of title for the Property on which Plaintiffs rely is as follows: The Property is Lot No. 2 on the Subdivision Plan of Forrest M. Husler, as recorded in the Office of the Recorder of Deeds for Cumberland County in Plan Book 40, Page 70, and which the said Forrest M. Husler and Jeanette E. Husler, by Deed dated October 8, 1982, and recorded in the said Office on October 8, 1982 at Deed Book "X", Vol. 29, Page 877, conveyed to Wayne R. Taylor and Jean K. Taylor, his wife. The said Wayne R. Taylor died on September 28, 2001. Jean K. Taylor, by Deed dated February 19, 2002, and recorded in the Office of the Recorder of Deeds at Deed Book 250, Page 2788, on February 28, 2002 conveyed the Property to the Plaintiffs herein. (The said Jean K. Taylor died on May 6, 2006.) A title worksheet setting forth the dates and recording information for prior deeds back to the title of Charles C. Swarner is set forth as Exhibit B, which is attached hereto and made a part hereof 5. Defendants have at all times pertinent hereto and still are the owners in fee simple of certain real property which abuts the Property owned by Plaintiffs. Defendants' property is located at 720 Conodoguinet Avenue, in North Middleton Township, Cumberland County, Pennsylvania, and is more particularly described as set forth on Exhibit C, which is attached hereto and made a part hereof. 6. The abstract of title on which Defendants rely in respect to their ownership of 720 Conodoguinet Avenue, North Middleton Township, Cumberland County, Pennsylvania is as follows. The said real estate is Lot No. 42 and the eastern 10 feet of Lot 41 on the Plan of Lots as laid out by Charles C. Swarner, as recorded in the Office of the Recorder of Deeds for Cumberland County in Plan Book 2, Page 38, and which Elnora E. Paul and Corey Paul, by Deed dated January 27, 1984, and recorded in the said Office on March 13, 1984, at Deed Book "O", Vol. 30, Page 1174, conveyed to Anthony G. Cardone and Frances A. Cardone, Defendants herein. A title worksheet setting forth the dates and recording information for prior deeds back to the title of Charles C. Swamer is set forth as Exhibit D, which is attached hereto and made a part hereof. Plaintiffs' Property and Defendants' real estate described herein in paragraphs 5 and 6 above abut each other. Plaintiffs' Property is referred to as "Recreation Ground" in the Deed description to Defendants' real estate. 8. As reflected on the title worksheets set forth as Exhibits B and Exhibit D hereof, the titles of the Property and Defendants' real estate have a common source, Deed Book "I", Vol. 9, Page 86. 9. Plaintiffs' Property and the real estate of Defendants are both identified on the said Plan of C. C. Swarner, the best copy of which is set forth and made a part hereof as Exhibit E hereto. 10. On or about June 3, 1999, Plaintiffs' predecessors in title, Wayne R. Taylor and Jean K. Taylor, Plaintiffs' mother and father in law, mother and father, and grandparents respectively, filed a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania at No. 99-3352 Civil seeking to eject Defendants' herein and to Quiet Title to certain portions of the Property being trespassed upon and illegally used by Defendants herein, and to seek damages for an illegal trespass of the Property by actions which precluded the Taylors to peaceably enjoy the Property. Concurrent with filing the said Complaint, Wayne R. Taylor and Jean K. Taylor also filed a Petition for Special Relief, which included a request for a court order directing the Defendants to show cause why they should not be ordered to allow a licensed surveyor to immediately enter upon Defendants' land so as to survey and mark the boundary of the Property and Defendants' lands. True and correct copies of the said Complaint and Petition for Special Relief are attached hereto and made a part hereof as Exhibit F. 11. As the Complaint filed by the Taylors at No. 99-3352 Civil reflects, in or about November of 1998, Tony Cardone contacted Wayne R. Taylor and advised him that he was repairing his septic system and needed to put dirt on the Property, but he assured Wayne R. Taylor that he would clean it up. Taylor did not object to Cardone's request. 12. However, as reflected in the Complaint filed at Civil Action No. 99-3352, Taylor shortly thereafter observed piles of stone on the Property and excavation of the Property beyond the mere placement of dirt to which he had consented. Cardone, however, upon questioning, again advised 3 Taylor that he was simply repairing his septic system and that he was not extending the septic system or its drain field onto the Property. 13. Pursuant to the said Taylor Complaint, based upon Taylor's observations, Taylor strongly believed that Cardone was in fact extending the septic system and drain field unto the Property. 14. As reflected in the Taylor Complaint, Taylor contacted the North Middleton Township Sewer inspector and was advised that Cardone had obtained a permit to repair an existing septic system and that Cardone had assured him that the system did not extend unto the Property, and that the Property involved belonged to Cardone. 15. According to Taylor, the inspector advised that in the absence of a survey, the Township would not take any deleterious action against Cardone. The Taylor Complaint reflects through both averments and exhibited letters that letter communications and verbal communications between counsel were exchanged from about December of 1998 through early May of 1999 wherein the Taylors attempted to secure a survey of the Property to establish the parties' appropriate boundary lines and any encroachments thereon. These letter communications reflect that Cardone's then attorney, Jane Adams, Esquire, was in agreement that it would be a good thing for such a survey to be conducted. The Taylor Complaint averments reflect that at one point in the process as Taylor entered on the Property to inspect and to view Defendants' encroachment, he observed Cardone with a rifle or shot gun, and that Cardone advised him to leave "his property." 16. As to the averments in the Taylor Complaint, Cardone's then counsel, Jane Adams, Esquire, ultimately advised the Taylors' counsel that her client would not give permission to any surveyor to enter on his property to perform a survey to establish the appropriate boundary line. 4 17. While Plaintiffs herein were aware that Wayne R. Taylor and Jean K. Taylor had some type of litigation with the Cardones, until very recently they had not seen or reviewed a copy of the Complaint filed and were unaware of its precise contents, although they were aware of the general dispute between the Taylors and the Cardones. 18. In respect to the Civil Action filed by the Taylors at No. 99-3352 Civil, and in response to the Taylors' Request for Special Relief, and a "show cause' order issued in respect thereto, the Taylors and the Cardones, through their counsel, entered into a `stipulation" dated July 8, 1999, to allow a surveyor to enter the Property and the real estate of Defendants for the purpose of establishing a boundary line between the two properties so that a determination could be made as to whether Defendants have encroached and trespassed. 19. It is believed and therefore averred that unbeknownst to the Taylors, on or about September 27, 1999, the Cardones received a "Quit Claim Deed" from their predecessors in title, Elnora E. Faul and Corey Faul, which was recorded on September 30, 1999 in the Office of the Cumberland Recorder of Deeds at Deed Book 208 Page 865, for land which illegally and improperly encroaches upon the Property then of the Taylors and now of the Plaintiffs herein. A true and correct copy of the said Quit Claim Deed is attached hereto, along with the "Realty Transfer Tax Statement of Value" filed in respect to the same as Exhibit G. 20. Neither the Taylors nor Plaintiffs herein knew of the existence of the said Quit Claim Deed and its filing until advised by Sam Runyon of Byers & Runyon Surveying, of 579 Lincoln Way East, Chambersburg, PA 17201, when Mr. Runyon, on October 14, 2003, while performing a survey of Plaintiffs' Property, informed John M. Whitten that in preparation for the performance of the survey he found the said Quit Claim Deed. 21. Shortly after purchasing the Property from the Taylors, Plaintiffs herein verbally and in writing began to communicate with landowners who owned lots whose boundaries abutted that of the Property in order to determine whether there was interest of these lot owners in extending their ownership from their lots to the Conodoguinet Creek. Plaintiffs began to circulate letters to determine the degree of interest for a subdivision of the Property, and for the purchase of the proposed lots thereto through said verbal communications and written communications, including letters dated July 30, 2002, April 3, 2003, May 28, 2003, and June 26, 2003. These letters were sent to the Cardones, as well as other abutting landowners to the Property. True and correct copies of these letters are attached hereto and made a part hereof as Exhibit H. 22. Also, pursuant to Plaintiffs herein interest in subdividing the Property and selling off lots to abutting landowners, including the Cardones, Plaintiffs hired Byers & Runyon Surveying of 479 Lincoln Way East, Chambersburg, PA 17201, to perform a survey of the Property and to draft a subdivision plan for the Property. Included on that plan is also a survey of the Property as it abuts the Cardone property. This survey shows the Quit Claim Deed area illegally claimed by the Cardones and the approximate location of the Cardones' septic tank, which clearly trespasses upon the Property. A copy of the said survey is attached hereto and made a part hereof as Exhibit I 23. As explained by the Whitten in their various communications with abutting landowners to the Property, including the Defendant Cardones, there was a need to have unanimity among abutting landowners to purchase the proposed subdivided lots for numerous reasons, including the rights of all abutting landowners to enjoy full creek access along the creek frontage. Also, there were cost restriction in that survey costs, subdivision costs and other legal fees also made unanimity desired. Plaintiffs herein also desired to accomplish this feat so that an amicable resolution with the Cardones could be accomplished. 24. Unfortunately, even though Plaintiffs herein have attempted to acquire unanimity among the landowners for the proposed subdivision, it does not appear that such unanimity will be forthcoming. As a result, it does not appear that the Property will be subdivided, and that such subdivision will have the indirect result of amicably mooting Plaintiffs' dispute with the Cardones. 25. The Cardones continue to trespass upon the Property, not only on the area where they filed their illegal Quit Claim Deed and placed a septic tank and drainage field, but also beyond that on the Property itself by doing such things as placing garbage, debris and a boat. Recently, in April of this year, Tony Cardone placed a pile of wood, nails and construction debris on the Property, and when advised to move it by Plaintiff John M. Whitten, he swore at Plaintiff and threatened violence. Thereafter, he ultimately burned the debris on Plaintiffs' Property in violation of Municipal Burning Ordinances of North Middleton Township, (a copy of which is attached as Exhibit J), and left the burning remnants on Plaintiffs' Property, burning the grass thereon and leaving nails on the ground. 26. The Cardones have constructed a pier that is partially on Plaintiffs' Property and goes into the Conodoguinet Creek, which is a continuing trespass. 27. The Cardones have built a porch, the steps of which are built on the Property. The porch and steps violate Municipal set back requirements. 28. The conduct of Tony Cardone to swear and threaten the Plaintiffs and to do so to their predecessors in title in 1999, the Taylors, has violated and trespassed upon the rights of Plaintiffs to peaceably enjoy the use of their Property. 29. Plaintiffs herein have asked that the Cardones cease and desist from their trespass activities, and their violent unneighborly ways, but they continue to trespass upon and violate Plaintiffs' rights to peaceably enjoy the Property. COUNT T - IN EJECTMENT 30 Plaintiffs incorporate herein by reference all of the above-numbered paragraphs as if fully set forth herein. 31. Defendants are wrongfully and without permission of Plaintiffs encroaching upon the Property of Plaintiffs and have taken wrongful possession. As a result of Defendants' wrongful possession of Plaintiffs' land, Plaintiffs have been deprived of their enjoyment of the Property and have been put to expense and inconvenience. 32. Plaintiffs believe and therefore aver that Defendants have wrongfully appropriated Plaintiffs' land by building a septic system and extending a drain field onto the land of Plaintiffs, interfering with Plaintiffs' right to come upon and use their land, by causing damage to the soil, and the possibility of runoff into the Creek, which is fronted by Plaintiffs' Property. The said misappropriation of land by Defendants is shown on the draft copy of the "subdivision plan" prepared by Byers & Runyon Surveying on or about October 29, 2003 for Plaintiff John M. Whitten, which plan shows the location of Defendants' septic tank and is attached hereto as Exhibit I. 33. Defendants had actual knowledge of Plaintiffs' rights, title and interest to the Property. Defendants do not now have, nor have they ever had, any legal claim of proper title or possession to the Property. 8 WHEREFORE, Plaintiffs ask this Honorable Court to Order the Defendants to immediately return possession of the land to Plaintiffs; to remove the septic system and drain field located on it; to restore the Property to the condition before any work was done on it by Defendants, including the relocation as may be necessary of any septic system or drain field placed upon the Property; and to grant Plaintiffs such other relief as this Court may deem proper and just, including, but not limited to, attorney's fees and costs of suit due to the illegality and outrageousness of Defendants' conduct. COUNT 11- ACTION TO QUIET TITLE 34. Plaintiffs incorporate herein by reference all of the above-numbered paragraphs as if fully set forth herein. 35. Defendants have wrongfully asserted rights, title and interest in the Property behind their dwelling at 710 Conodoguinet Avenue, North Middleton Township, Cumberland County, Pennsylvania, inconsistent with Plaintiffs' rightful title to the Property as set forth in the chain of title reflected in Exhibit B and Plaintiffs' Deed of February 19, 2002, as recorded in the Office of the Recorder of Deeds in Cumberland County at Deed Book 250, Page 2788. WHEREFORE, Plaintiffs ask this Honorable Court to determine the rights, title and interest of Plaintiffs to the Property presently claimed by Defendants wherein the septic system and drain field have been illegally located by Defendants, and pursuant to which Defendants have filed an illegal Quit Claim Deed as set forth in Exhibit G, and to compel Defendants to admit the invalidity under the existing Deed or otherwise to the said Property, and to order Defendants to file appropriate documents in the Office of the Recorder of Deeds noting the illegality and invalidity of the Quit Claim Deed, and to grant such further relief as this Honorable Court may deem proper and just, including, but not limited to, 9 an Order granting Plaintiffs' request for attorney's fees and costs of suit because of the outrageous and illegal conduct of Defendants. COUNT III - TRESPASS 36. Plaintiffs incorporate herein by reference all of the above-numbered paragraphs as if fully set forth herein. 37. Defendants, in placing a septic tank and a drain field upon the Plaintiffs' lands, and by refusing to remove the same, have intentionally or negligently encroached upon Property owned by Plaintiffs and caused damage to Plaintiffs' Property without lawful approval or lawful permits for the placement of same upon Plaintiffs' creek front land, and without proper approval from governing authorities. Defendants have illegally and wrongfully trespassed upon Plaintiffs' lands by placing debris material and garbage material upon Plaintiffs' Property and at times burning the same, all without Plaintiffs' approval or consent, and in violation of Plaintiffs' peaceful enjoyment of their Property. Defendants have refused to remove some debris and continue in their trespass in respect thereto. Defendants have wrongfully placed a boat and dock upon Plaintiffs' Property without the permission or consent of Plaintiffs, and this trespass continues. A By their continuing and numerous transitory trespasses, Defendants interfere and have interfered with Plaintiffs' quiet and peaceful possession and enjoyment of their Property and have caused injury and expense. 39. On account of Defendants' trespasses, Plaintiffs have been injured and have suffered damages in excess of Ten Thousand Dollars ($10,000). WHEREFORE, Plaintiffs ask this Honorable Court to award them damages in excess of Ten Thousand Dollars ($10,000) and to grant such further relief as this Honorable Court may deem proper 10 and just, including but not limited to attorney's fees and costs of suit as a result of the outrageous and illegal actions of Defendants. Respectfully submitted, The Law Office of John H"as Date: ? 2006 11 Mechanicsburg, PA 17050 Attorney for Plaintiffs (717) 979-4840 VERIFICATION I, JOHN M. WHITTEN, hereby state that I am an adult individual, and am authorized by all of the Plaintiffs herein to make this Verification, and that the facts set forth in the foregoing Complaint are true to the best of my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. John M. Whitten Exhibit A Property of Plaintiffs known as 610 Conodoguinet Avenue, Carlisle, North Middleton Township, PA: ALL that certain tract of land situate in North Middleton Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a point in the intersection of Township Road No. 484 and Conodoguinet Avenue; thence in Conodoguinet Avenue, South 67 degrees 9 minutes 6 seconds East 267.97 feet to a point; thence by the same, South 70 degrees 23 minutes 9 seconds East 63.39 feet to a point; thence South 16 degrees 00 minutes 24 seconds West 175 feet to a point; thence South 72 degrees 6 minutes 57 seconds East 51.08 feet to a point; thence South 72 degrees 52 minutes East 158.92 feet to a point; thence North 88 degrees 30 minutes East 383.9 feet to a point; thence North 82 degrees 30 minutes East 40 feet to a point; thence North 70 degrees 30 minutes East 40 feet to a point; thence North 66 degrees East 80 feet to a point; thence North 58 degrees East 40 feet to a point; thence North 50 degrees East 40 feet to a point; thence North 45 degrees East 40 feet to a point; thence North 26 degrees 00 minutes 21 seconds East 360 feet, more or less, to a point; thence by land now or formerly of D. Bayer, South 63 degrees 59 minutes 39 seconds East 85 feet, more or less, to a point on the low water mark of the North Bank of the Conodoguinet Creek; thence by the low water mark of North Bank of the said Creek, South 22 degrees 40 minutes West $88 feet, more or less, to a point; thence by the same, South 50 degrees West 253 feet to a point; thence by the same, South 86 degrees 30 minutes West 500 feet, more or less, to a point; thence by the same, North 65 degrees 51 minutes 21 seconds West 214.31 feet to an iron pin; thence by the same, North 76 degrees 6 minutes 59 seconds West 377.07 feet to a point in the center of Township Road No. 484 aforesaid; thence by the center of said Road, North 15 degrees 17 minutes 51 seconds East 317.72 feet to the Place of BEGINNING; Containing 5.52 acres, more or less. BEING Lot No. 2 on the Subdivision Plan of Forrest Husler, as recorded in the Office of the Recorder of Deeds for Cumberland County in Plan Book 40, Page 70. BEING part of the property which was conveyed to Forrest M. Husler and Jeanette E. Husler, husband and wife, by R Ernest Miller, Widower, by deed dated October 9, 1951, and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book "U," Vol. 14, page 413, and which the said Forrest M. Husler and Jeanette E. Husler, by deed dated October 8, 1982, and recorded in the said Office on October 8, 1982 at Deed Book "X," page 877, conveyed to Plaintiffs, Wayne R. Taylor and Jean K. Taylor, husband and wife. V /T =a it SI a f i a CRem r/IIf IC4 ExHlxl-, B TITLE WORKSHEET BUYER Niveo Baird Paralegal pale ADVERSE MORTGAGE MISC. SECTRAN DELTAX JUDGE ILIEI:I of r J rr...rn^ . sa... K. 1dy b[.I7 g77 from: Id TIN u Yn from: to 14 1 t l to: to I tldz na.FMda a+.l.. r.rtiill.r 14?S from: 7/1(,/Y'7 m: 0 1 gww H. vaf.i?. lewd rnilM. IsJ ?flYal??• I r . i I 'tom: 31a7 /is to: 71,/Y Iu7 fimm. IS l b /iy to: /a7lli I. Vaelv(1.n.. de . )If, from: 6/n/JC to: Ia.la/ S4 .6. n.>... W u fa'+r I.?._alulJO ?'1t]c../1. rt l++ lL JL w fL'{N i'v . .v Exhibit C Property of Defendants known as 720 Conodoguinet Avenue, Carlisle, North Middleton Township, PA: ALL THAT CERTAIN messuage and tract of land situate in Meadow Brook Park, North Middleton Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a point on the western line of Lot Number 43 and Conodoguinet Avenue; thence along the western line of Lot Number 43, South 60 degrees 30 minutes East, one hundred seventy-five (175) feet to a point at the southwestern corner of said Lot Number 43 and Recreation Ground; thence along the northern line of said Recreation Ground, South 29 degrees 30 minutes West, fifty (50) feet to a point; thence along lands now or formerly of Mary M. Hungate, North 60 degrees 30 minutes West, one hundred eighty (180) feet to a point on the southern line of said Conodoguinet Avenue; thence along the southern line of said Conodoguinet Avenue, North 51 degrees 32 minutes East, ten (10) feet to a point; thence still along the southern line of said Conodoguinet Avenue, North 29 degrees 30 minutes East, forty (40) feet to a point, the place of BEGINNING. BEING Lot Number 42 and the eastern ten (10) feet of Lot Number 41, Section 2 of a Plan of Lots as laid out by Charles C. Swarner, said Plan being recorded in the office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 2, Page 38, and having thereon erected a frame cottage and other improvements. TOGETHER with and subject to the rights and restrictions and limitations set forth in Deeds recorded in the hereinafter named Recorder's Office in Deed Book "P", Volume 9, Page 246, and Deed Book "D," Volume 10, Page 390. BEING the same premises which Harold M. Starry and Dorothy N. Starry, husband and wife, by their Deed dated August 4, 1978, and recorded in the Recorder's Office aforesaid, in Deed Book "Y," Volume 27, at Page 799, granted and conveyed unto Elnora E. Wunder, and which the said Elnora E. Wunder, also known after marriage as Elnora E. Paul, joined by her husband, Corey Paul, granted and conveyed to Anthony G. Cardone and Francine A. Cardone, husband and wife, by their Deed dated January 27, 1984 and recorded March 13, 1984, in the Record Office aforesaid at Deed Book "0" . E MBIT c Client 4rlzt 199 Date TITLE WORKSHEET BUYER ---- --------- Niven Baird - Pamlegai. ,y r(. c t,,4". .,e r from: ?(n-l try to: xiwk 4. from: ?14 hJr to: il»IS4 m. s,a,?,..v Fvw.Skvnv from: S00 /65 m: C/Y/> from: y /n/Lq m: a flb/65 I a tk? y- rm .?i from: 111 w/br m: 4 1-14.5 Si4y1iNY 4W 9/ ?Y rT. fuw.a q. f<... from: w woo m: t al ??lbY ! K • Puny ,,,,, trli?lbo 5 b L 4 u LY4 + ` 6 a r p Climt -199 from:411714L i9a rn... ?unr w yry f1aO: 7/nh7 to: 4ll,lg4 fm= 4.14/ 1, to: '7117/z7 C w..E w Suawu. 45. fiom: 3/eohl m: A ?qQ?++? S. I a PI a Pfm Q 0403- o1nNYS7 }yN 1YYl from: non : t+SeA k,. W Ni Baird legel TITLE WORKSHEET Paralegal £?, .d 7 Lw41 BUYBa - 0 do .F ' -O,l 0 r? u.kt. 9 TSti - ahe ?+ L. QeIF a, t ? ? 43/4° w 111. J=am 6 `-r p i+ily •6'tyr Y f ?. I 1LAN Or 'VrOAi.; _+ .,??ryM?eyw.M y?.J •?.trfJ" r C l ~t yyx. WAYNE R. TAYLOR and JEAN K TAYLOR PLAINTIFFS V. ANTHONY G. CARDONE and FRANCINE A. CARDONE DEFENDANTS : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 9 'x.3.50`? Cl J 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 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: 717-249-3166 F WAYNE R. TAYLOR and : IN THE COURT OF COMMON PLEAS JEAN K TAYLOR : OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. NO. q9. 33.4-2 Cvd- 7--4,---- ANTHONY G. CARDONE and FRANCINE A. CARDONE DEFENDANTS COMPLAINT AND NOW come Wayne R. Taylor and Jean K Taylor, by their counsel, Andrea C. Jacobsen, Esquire, JACOBSEN & MILKES, and state as follows: 1. Plaintiffs are Wayne R. Taylor (Taylor) and Jean K Taylor, husband and wife, adult citizens of Cumberland County, Pennsylvania, who reside at 610 Conodoguinet Avenue, Carlisle, PA 17013. 2. Defendants are Anthony G. Cardone, also known as Tony Cardone, (Cardone) and Francine A. Cardone, husband and wife, adult citizens of Cumberland County, Pennsylvania, who reside at 720 Conodoguinet Avenue, Carlisle, PA 17013. 3. Plaintiffs were at all times herein mentioned, and still are, the owners in fee simple of certain real property located at 610 Conodoguinet Avenue, in North Middleton Township, Cumberland County, Pennsylvania, and more particularly described as set forth on Exhibit A which is attached hereto and made a part hereof. 4. The abstract of title on which plaintiffs rely is as follows: The said piece of property is Lot No. 2 on the Subdivision Plan of Forrest Husler, as recorded in the Office of the Recorder of Deeds for Cumberland County in Plan Book 40, Page 70, and which the said Forrest M. Husler and Jeanette E. Husler, by deed dated October 8, 1982, and recorded in the said Office on October 8, 1982 at Deed Book "X," Vol. 29, page 877, conveyed to Wayne R. Taylor and Jean K. Taylor, plaintiffs. A title worksheet setting forth the dates and recording information for prior deeds back to the title of Charles C. Swarner, is set forth as Exhibit B which is attached hereto and made a part hereof. 5. Defendants were at all times herein mentioned, and still are, the owners in fee simple of certain real property which abuts the above described property of plaintiffs. Defendants' property is located at 720 Conodoguinet Avenue, in North Middleton Township, Cumberland County, Pennsylvania, and is more particularly described as set forth on Exhibit C which is attached hereto and made a part hereof. 6. The abstract of title on which defendants rely is as follows: The said piece of property is Lot No. 42 and the eastern 10 feet of Lot 41 on the Plan of Lots as laid out by Charles C. Swarner, and as recorded in the Office of the Recorder of Deeds for Cumberland County in Plan Book 2, Page 38, and which Elnora E. Paul and Corey Paul, by deed dated January 27, 1984, and recorded in the said Office on March 13, 1984, at Deed Book "O," Vol. 30, page 1174, conveyed to Anthony G. Cardone and Francine A. Cardone, defendants. ifs ? • A title worksheet setting forth the dates and recording information for prior deeds back to the title of Charles C. Swarner, is set forth as Exhibit D which is attached hereto and made a part hereof. 7. The above described properties of the parties abut each other. The property of plaintiffs is referenced as "Recreation Ground" in the description of defendants' property. 8. As reflected on the title worksheets set forth as Exhibit B, and Exhibit D, the titles of the two properties have a common source, Deed Book "I," Volume 9, Page 86. 9. The properties of the parties are both identified on the said plan of C.C. Swarner, the best photocopy of which is set forth and made a part hereof as Exhibit E hereto. 10. In or about November 1998, defendant Cardone contactedplaintiff Taylor and advised him that defendant was repairing his septic system and needed to put dirt on plaintiffs' property adjacent to defendants' land, but that Cardone would clean it up. Taylor did not object. 11. Shortly thereafter, Taylor observed piles of stone on his land and excavation of land and the disturbance of his property beyond the placement of dirt to which he had consented. Taylor questioned Cardone as to what he was doing as it appeared that Cardone was encroaching upon Taylor's property. Cardone again advised plaintiff that all he was doing was repairing his septic system which was located on defendants' property and that Cardone was not extending the septic system or drain field onto land of plaintiffs. 12. Based on his observation of the property and the work being performed, Taylor believes and therefore avers that Cardona was in fact doing more than repairing his own existing septic system, and was extending the system and drain field onto defendants' property. 13. Taylor contacted the North Middleton Township sewer inspector and questioned the right of Cardona to extend his septic system or drain field on to plaintiffs' property. Taylor was advised that Cardona had obtained a permit to repair an existing septic system and that Cardona had assured the inspector that the system did not extend on to plaintiffs' property, that the property in question in fact belonged to Cardona. 14. The inspector advised that in the absence of a survey, the Township would rely on the representation that the septic system and drain field were on the property of Cardona, not on the property of plaintiffs. 15. In or about December 1998, Taylor, wrote to Cardona and advised him that he knew the septic system or drain field was partly on the property of plaintiffs and that plaintiff would expect payment for the use of his property or would proceed to dig up his property where plaintiff believed the septic was located. A photocopy of the letter which was sent to defendant by certified mail is attached hereto and made a part hereof as Exhibit F. 16. Taylor hired Dick Whisler and arranged for the property on his side of the boundary line to be dug up by a backhoe. On or about April 5, 1999, Taylor proceeded to a part of his property adjacent to the property of defendants' with the backhoe and Ronald Armolt, an operator employed by Dick Whisler. As Taylor and Armolt approached the property line, they observed Cardone at the back window of his house which faces the property line. Cardona had a rifle or a shot gun and advised Taylor to leave his property. Taylor asserted it was his property, not Cardone's. 17. Shortly thereafter, a North Middleton Township police officer and the septic inspector arrived on the scene. After discussion, Taylor was advised against digging on his own land until he was able to prove that he was the owner of the property where he intended to dig. 18. By letter dated January 11, 1999, from attorney Jane Adams, Esquire, Taylor was advised that Cardone believes that his building addition and primary septic system are within his property line and do not encroach upon plaintiffs' property. A photocopy of the letter is attached hereto and made a part hereof as Exhibit G. 19. Taylor avers that the said building addition and septic system of defendants are upon the property of plaintiffs and that defendants have appropriated such property of plaintiffs and are holding, using and enjoying the said property of plaintiffs, and preventing plaintiffs from coming upon and using the land. 20. In or about April 1999, plaintiff contacted Steve Fisher, of Fisher, Mowery, Rosendale & Associates, licensed surveyors, and requested that a survey be done of the property to confirm that Cardone was encroaching on plaintiffs' land. 21. Mr. Fisher advised plaintiff to obtain permission of defendants to do a survey. 22. On April 26, 1999, defendant's counsel, Jane Adams, Esquire, was contacted by plaintiffs' undersigned counsel with the request that Cardone grant the ` i surveyor permission to come on the property of defendants, as needed, for the purpose of doing a survey in order to attempt to resolve the dispute between the parties. Attorney Adams advised that she would recommendthat Cardone grant the permission sought. A photocopy of a letter confirming the conversation between counsel is attached hereto and made a part hereof as Exhibit H. 23. On or about May 3, 1999, Jane Adams advised plaintiffs' counsel that her client would not give permission to the surveyor to enter on his property in the course of performing a survey of the property. COUNT NO. 1 - IN EJECTMENT 24. Plaintiffs incorporate herein by reference the above numbered paragraphs as though set forth in full. 25. Defendants are wrongfully and without permission of plaintiffs encroaching upon the property of plaintiffs and have taken possession thereof. As a result of defendants' wrongful possession of plaintiffs' land, plaintiffs have been deprived of their enjoyment of their property and have been put to expense and inconvenience. 26. Plaintiffs believe and therefore aver that Cardone has wrongfully appropriated plaintiffs' land by extending his septic system and drain field onto the park land of plaintiffs, interfering with Taylor's right to come upon and use his land, by causing damage to the soil, and the possibility of run off into the Creek which is fronted by plaintiffs' property. 27. Defendants had actual knowledge of plaintiffs' rights, title and interest to the property appropriated. Defendants do not now have, nor have they ever had, any claim of title to the property appropriated. WHEREFORE, plaintiffs ask this Court: to direct defendants to immediately return possession of the land to plaintiffs; to remove any septic system or drain field located on it; to restore the property to the condition before any work was done on it by defendants including the relocation as may be necessary of any septic system or drain field placed upon the property; to enjoin defendants from any further encroachment upon plaintiffs' property; and to grant plaintiffs such other relief as this Court may deem proper and just. COUNT NO. 2 - ACTION TO QUIET TITLE 28. Plaintiffs incorporate herein by reference the above numbered paragraphs as though set forth in full. 29. Defendants have asserted rights, title and interests in the property behind their dwelling at 710 Conodoguinet Avenue, North Middleton Township, Pennsylvania, inconsistent with plaintiffs' title to the property pursuant to their deed of October 8, 1982 as recorded in Cumberland County at Deed Book "X," page 877. WHEREFORE, plaintiffs ask this Court in the alternative, if it shall determine that an action in ejectment is not available to plaintiffs, to determine the right title and interest of plaintiffs to the property presently claimed by defendants wherein the septic system and drain field have been located by Cardone, and to compel defendants to admit the invalidity of their claim under the existing deed or otherwise to the said property, and to grant such further relief as this court may deem proper and just. COUNT NO. 3 - COUNT IN TORT 30. Plaintiffs incorporate herein by reference the above numbered paragraphs as though set forth in full. 31. Cardone, in making improvements to Defendants' property, negligently or intentionally encroached upon property owned by plaintiff and caused damage thereto by disturbing the park like nature of the property and installing thereon a septic system, without approval or permits for the placement of same in plaintiff's creek front lands. 32. Cardona, by actions, interferedwith Taylor's right to peaceably enjoy his land and to dig or excavate thereon. 33. Defendants unlawful trespass upon plaintiffs land is continuing. 34. By their continuing trespass, defendants have interfered with plaintiffs' quiet and peaceable possession of their property and have caused them injury and expense. 35. On account of defendants' ongoing trespass, plaintiffs have been injured and have suffered damages in excess of Ten Thousand Dollars. WHEREFORE, plaintiffs ask this Court to award them damages in excess of Ten Thousand Dollars and to grant such further relief as this court may deem proper and just. Respectfully submitted, BY: An *a C. acobsen, Esq. JACOBS IM LKES 52 East High Street Carlisle, PA 17013 (717) 249-6427 (717) 249-8427 Fax Attorney No. 20952 WAYNE R. TAYLOR and : IN THE COURT OF COMMON PLEAS JEAN K. TAYLOR : OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS Tu«- V. NO. ANTHONY G. CARDONE and FRANCINE A. CARDONE DEFENDANTS PETITION FOR SPECIAL RELIEF AND NOW COME, Wayne R. Taylor and Jean K Taylor, plaintiffs in the above action, petitioner herein, by and through counsel, Andrea C. Jacobsen, JACOBSEN & MILKES, and petition this Court to enter an Order, directing the defendants to allow Steve Fisher, Licensed Surveyor, the right to enter upon the land of defendants, as necessary, to survey and mark the boundary of the propertyy line between the lands of the parties, for the following reasons: 1. The parties in this matter are the owners of record of certain tracts of land more fully described in the Complaint in this matter filed in this Court this date to the above caption. 2. Plaintiffs assert that defendants have encroached upon and appropriated plaintiffs' land and have placed a septic system and drain field upon plaintiffs' premises without permission or right. S. Defendants have asserted title to the property of plaintiffs where the septic system and building addition are located. 4. Plaintiffs seek to have a survey done of the property line between the n`I 1 ? lands of the parties to document the fact of their title and to establish the fact of defendants' encroachment and appropriation. 5. Defendant Anthony Cardone has refused the request of plaintiffs to allow surveyor, Steve Fisher, to enter upon their property, as necessary, to complete such a survey. WHEREFORE, plaintiffs ask this Court to: a. grant the plaintiffs special relief in the form of an Order directing the defendants to show cause why they should not be ordered to allow Steve Fisher, Licensed Surveyor, the immediate right to enter upon the land of defendants, as necessary, to survey and mark the boundary of the property line between the lands of the parties; b. and to grant such further relief as this Court may deem proper and just. DATE: 3 9 52 East High Street Carlisle, PA 17013 (717) 249-6427 (717) 249-8427 Fax Attorney No. 20952 Respectfully submitted, WAYNE R. TAYLOR and : IN THE COURT OF COMMON PLEAS JEAN K. TAYLOR : OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. NO. 99-3,35. ANTHONY G. CARDONE and FRANCINE A. CARDONE DEFENDANTS ORDER OF COURT. IN RE: PLAINTIFFS' PETITION FOR SPECIAL RELIEF AND NOW, this ? day of t2vn2J 1999, upon presentation and consideration of Plaintiffs' Petition for Special Relief, a Rule is issued upon the Defendants to show cause why the relief requested should not be granted, and why defendants should not be directed to permit Steven Fisher, or other licensed surveyor nominated by plaintiffs, to enter upon the defendants land as necessary to survey and mark the boundary of the property line between the adjacent properties of the parties in North Middleton Township, Cumberland County, Pennsylvania. This Rule is returnable at a hearing to be held the 9J day of 1999, Courtroom No. , Cumberland County Courthouse, i Carlisle, Pennsylvaniay By the Court f r ? J. WAYNE R. TAYLOR and : IN THE COURT OF COMMON PLEAS JEAN K. TAYLOR : OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. : NO. 99-3352 -Civil ANTHONY G. CARDONE and FRANCINE A. CARDONE DEFENDANTS STIPULATION AND NOW Wayne R. Taylor and Jean K. Taylor, plaintiffs, by their counsel, Andrea C. Jacobsen, Esq., JACOBSEN & MILKES, and Anthony G. Cardone and Francine A. Cardone, defendants, by their counsel, Dale F. Shughart, Jr., Esq., stipulate and agree as follows: 1. On June 3, 1999, plaintiffs filed the Complaint in this matter along with a Petition for Special Relief requesting an Order directing defendants to allow a surveyor to enter upon defendants' land, as necessary, to determine the property line between the lands of the parties. 2. Defendants hereby agree that Steven Fisher, Licensed Surveyor, (Fisher) may enter upon their land, as necessary, and without any interference, to survey and mark the boundary of the property line between the adjacent properties of the parties in North Middleton Township, Cumberland County, Pennsylvania. 3. The parties agree to cooperate, as necessary, with the surveyor to permit the timely and accurate completion of such survey. 4. The parties understand and agree that if defendants are not satisfied with Fisher's determinations as to the location of the boundary and any "encroachment" as .r may be identified by Fisher, defendants may hire a separate surveyor. In such event, the parties agree to direct the surveyors to share information with each other in an effort to reach agreement as to the location of the boundary based upon the legal descriptions in the deeds of record and the physical survey of the property. 6. The parties agree that after the survey is completed by Fisher, a copies of the survey will be distributed to the parties and counsel. Within twenty (20) days after receipt of the completed survey from Fisher, plaintiffs will file an Amended Complaint to more specifically aver the encroachment claimed. 6. The parties agree that defendants will respond to the Amended Complaint within (20) days after the filing and service upon defendants' counsel of the Amended Complaint. 7. The parties agree that defendants will not file a response to the original Complaint. 8. The parties agree that plaintiff's Petition for Special Relief shall be withdrawn and the hearing set thereon for July 9, 1999, shall be canceled. 9. This Stipulation is entered by counsel into with the knowledge and approval of the parties. BY Andrea G. Jacobsen, Esq. JACOBSt" MILKES Counsel for Plaintiffs ? l 71- 5 111 J By: Dale P'. 5hugh , Jr. Attorney At Law Counsel for Defendants QUIT-CLAIM DEED I ?• THIS INDENTURE, made the;/ day of Se1214? 1o. in the year of our Lord One Thousand Nine Hundred Ninety-nine (1999), BETWEEN ELNORA E. FAUL, formerly ELNORA E. WUNDER, in her own right, and COREY FAUL, her husband, of Hudson Ohio, party of the first part, AND ANTHONY G. CARDONE and FRANCINE A. CARDONE, Husband and Wife, of Carlisle, Cumberland County, Pennsylvania, party of the second part. WITNESSETH, that the said parties of the first part, for and in consideration of the sum of One ($1.00) Dollars lawful money of the United States of America, unto them well and truly paid by the said party of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have remised, released and quitclaimed, and by these presents do remise, release and forever quit-claim unto the said parties of the second part, as tenants by the entireties, their heirs and assigns, the following, to wit: ALL THAT CERTAIN tract of land situate in Meadow-Brook Park, North Middleton Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a point 82 feet, more or less, from the northern/western bank of the Conogoduinst Creek, at the southeastern corner of Lot No. 92, Section 2 on the Plan of Bungalow Lots known as Meadow Brook Park laid out by Charles C. Swarner and recorded in Cumberland County Plan Book 2, Page 38; thence South 60 degrees 30 minutes East, 30 feet, more or less, to a point in a tree line; thence along said tree line South 29 degrees 30 minutes West 50 feet to a point in said tree line; thence North 60 degrees 30 minutes West 30 feet, more or less, to a point in line of Lot No. 91, Section 2 on the aforesaid Plan of Bungalow Lots; thence by the eastern 10 feet said of Lot No. 91 and by Lot No. 92 on the aforesaid Plan of Bungalow Lots North 29 degrees 30 minutes East 50 feet to a point, the Place of Beginning. CONTAINING 1,500 square feet, more or less. The Grantor believed that the above described property was a portion of the tract of land known and numbered as 720 Conodoguinet Avenue, Carlisle, PA and was included in the conveyance of said tract of land to the Grantees by Deed dated January 27, 1989 and recorded on March 13, 1989 in the Office of the Recorder of Deeds in and for Cumberland County in Deed BGuf. 208 PAGE 865 G Book "O", Vol. 30, Page 1174. During the term of ownership by the Grantor the aforesaid premises was occupied, used and maintained by her actually, continuously, exclusively, visibly, notoriously, distinctly, and hostilely which included a portion of time during which the Grantees herein occupied the premises as tenants of the Grantor. The purpose of this Quit Claim Deed is to convey unto the Grantees herein whatever right, title and interest the Grantors herein acquired by virtue of their occupancy, use and maintenance of the above described tract of land. TOGETHER with all and singular the tenements, hereditaments and appurtenances to the same belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also, all the estate, right, title, interest, property, claim and demand whatsoever, both in law and equity, of the said party of the first part, of, in, to or out of the said premises, and every part or parcel thereof. TO HAVE AND TO HOLD the said premises, with all and singular the appurtenances, unto the said parties of the second part, their heirs and assigns, to and for the only proper and behoof of the said parties of the second part, their heirs and assigns forever. IN WITNESS WHEREOF, the said party of the first part has caused this Indenture to be duly executed the day and year first above written. Witnesses: C--? z- VL. (X/?C. -?? [SEAL] Elnora E. Faul [SEAL] Corey Fsul BDDX 208 Face 866 R A 999 31YJ 99Z Nooa 17ns37 AV W NOILVINIMMO aimnddtl '0170 vysgdmOn Pun paves ,waj sl N 'jNloq pun aBpopm," Am M paq e4l as pun •uoNnuu/l,q BulAuodmwso 8e1pnpul gssasuasnjs el4l POW re rosy I psis -pop I'Mal la saislouod upun woa3 aoue anuoo TeuT Tao sql uT papnl3uT 3 0 q 1003 OE 2q1 1eglPlaAOTTaq iolueaD 'TelToaa eq1 UT pu4w4s By T Z C.0_ E 0 T 9 ' S' d Z L (•eAOgo palgl uogl »410 8 •pougap uo(pjwoxa u(old» escald) 1841O (•saplpo.jo Ados 4aopy) •uolsulp in w8jew •uapoP80mw alouoduoO Aminsals O (•powguw jo popujw 8ulaq prep joud 041 j0 Adw O1Oldww VOW 'POOP 4JOI a 9uw uo OAlpuAoO jegwnN OBod • J09wnN sloop 98051JOW •gnojeP u( OBaBpow o 10 aaplaq 0 01 J060600w way Jymwi 0 I•uolwpsw jo Adw 43oNo •uopouwapuw W nyl u( m uopouwopuw p) •uopauwapuoo 10 nab u; in uollouwopuoe •uo0oslpop '4lB Aq sa81lowewmoul pun sums Pe11un O41 •411Oe-owwo> O41 o1 snPuwi (•1u•wauBo Apod A wplAwo8o jo Adw ggdww 410"V) 'Iuo$o pun Iodpaud uaeAgaq ,eisuml (•sapaooeueq llo BulAj(luopl 4uewooj8n um1 jo Ada) ap(dww 4may) •ISmI o q jolsuoil •AaaeBy wawdojeAaa loupnpul 01 jojsuwl 0 Wgw,N -N OJMII (pspnea P w wl u0(umm yopqul m IIIM pomlep ualsdwox3 jal Maley Ong aso(sdwddy nsO4D •t y8ne+ea ?dlq wrey Oil any 1auTn2opo PaJOa•Q5Z NOI1V301 A1113d0ild D auol ETOLT Vd alsTTasD 9MI7 HO uospn • di woI AI! • d! w.,s A1.13 'any lauTndopouo0 OZL 'PATS sTBag 'is 079 nu Y pan sp+ Y I.•n ?ae0 •y euTOUead pue auopasD .D Auogluy Tnad 6aaoD pus Tned •g eaouT h •m s www s imwIl , wwm w•w,a. to 03uoldn a q VIVO MASN"I 9 £TOLT yd oTBTTaeO £OZ elTns 'laaals g2TH asag S£ •P^0 drA _ owls A1h p.,ppy pens TT£7-141V LT x01 onlVA AO 1N3WILVn X1/1 H3dsN11i11 ALIVIN •aj• 'laeg8ngs 'd 0TBO x010 L H 9 a em tut Ya'otnsslaaYN tol01L'1410 ttltlYITMEO M&D(a1ans YIM'AUSNNyU dd?B$0q.'Nf??1?sWB"OWVWW MM ai n,rss 9Z0-49£T-9T-6Z 30 laed) OTsTTaeD I puaTasgwn0 e ? t 7/30/2002 To All: As you are probably aware, within the past several months Mike and I purchased the parcel of land previously belonging to my parents that borders the creek behind all your houses. At this time, we have decided to subdivide the lower portion of this area into individual lots adjoining the homeowners properties directly in front of them. In researching this subdivision, we were shocked to discover that this is not necessarily an easy nor inexpensive process. We certainly never realized how much paperwork was involved in this seemingly simple process. North Middleton Township alone requires at minimum 4 permits (per individual lot) to include but not limited to application fees, engineer escrows, subdivision plot reviews, and surveyor submittal fees. Each of these is a separate fee. Then there are surveyor fees, recording fees, filing fees and lawyer fees. These are calculated by the number of lots involved in the subdivision. Each of these individual costs/expenses is multiplied by the number of lots involved. As yo,z can see, this is a costly undertaking. To prevent any of these lots from becoming landlocked, all contacted parties must agree to purchase the adjoining creek frontage lot. If anyone in this row of lots declines to buy, the deal will fold. It must be an all or none subdivision. If the subdivision does not materialize because someone does not purchase their adjoining lot, we will still have the whole creek frontage surveyed. At that point, all homeowners trash and personal property will have to be removed from that parcel. We will, be cordoning it off for our own personal use. We estimate each property owners total cost for the adjoining lots to be approximately between $4900 and $5800 per lot. This includes all costs, including the price of the ground and all legal fees. A portion of this per lot fee, to be determined later, will have to be paid upfront before any subdivision begins. This will protect all interested parties. I am enclosing a form that I would like you to fill out and return to us. Because Mike and I have staggering schedules, these forms will ensure that no phone message gets erased or lost without our knowing it. Please indicate on the form whether you are interested in purchasing the creek frontage lot adjoining your property. After we have gathered this information, we will narrow down a specific price and proceed from there. If you have any questions, feel free to contact us. Our phone number is 249-3155. N DATE: NAME: ADDRESS: ARE YOU INTERESTED IN PURCHASING ADJOINING LOT? YES NO CObMENTS : signature 4/3/2003 To all, This letter is to inform you that Mike and I have decided to move on with the process of selling the creek frontage lots that adjoin your properties. We are sorry for the delay between now and our original contact with you about this issue. We are now in the process of obtaining the services of a lawyer and a surveyor. In order for this process to work, Mike and I need to be sure that all parties involved in this property transfer are still interested and willing to buy the parcel of creek frontage fronting their properties. The price per each adjoining creek frontage lot is $4700.00. This is slightly lower than our original anticipated price. Inclusive in that price are all permits, administrative costs, lawyer fees, recording fees and surveyor costs associated with this property transfer. There are two steps to this process. Attached is a form that when returned to us will act as your good faith binding statement that you are indeed willing to purchase the adjoining lots. Once I have received all the forms back, I will be sending another letter requesting a $1000.00 nonrefundable down payment toward the purchase of your individual lots. The only way this $1000.00 would be refunded is if the seller decides not to complete this property transfer process. Once that has been received from everyone, we will apply for township permits and contract the surveyor to start the property transfer process. If, when the forms are returned to me, any one of the homeowners decides not to purchase the adjoining lots, the property transfer will not continue. This would land lock the lots for our access and we are not willing to do that. At that point, the whole creek frontage parcel will be surveyed. All lots will have to be cleared of all debris to include any permanent fixtures. If this is not done by the homeowner adjoining the lots, we will have the debris removed at the homeowners expense. At that point, the creek frontage parcel will no longer be available for use by the adjoining landowners. Terri Whitten 630 Conodoguinet Ave. 249-3155 r ` DATE: NAME: ADDRESS: ARE YOU INTERESTED IN PURCHASING ADJOINING LOT? YES NO COMMENTS: signature 6/26/2003 To All, This is just an update of where we stand on the subdividing of the creek front lots. Mike and I have contacted a surveyor out of Chambersburg. We have sent him the blueprints for the subdivision plan. He will review these plans and proceed from there. once he has made his review and drawn up his plans, he will contact North Middleton Township with his subdivision plan to get their approval. Once all that is accomplished, we will apply for the individual plot permits that are required by North Middleton. Because of his busy schedule, we are not exactly sure how long it will be before he starts this process or how long it will take. I will keep you updated as the process moves along. If you have any questions, we can be reached at 249-3155. Terri Whitten Kix 4 i?? W? 9I??R si B;, t f4 i S s s? t?( ?E ep, "Al s E ? E if Ei ?AS ?LS -- V?iav?u++aaluuaVaVU. U011CULA v1U11121111:C. 1111UrInUE10n rage 1 oI L r ccnorthmiddleton Search The Code of North Middleton Township is now available to view on-line, to E-11 view the Code, click here. ol The Subdivision/Land Development and Zoning Ordinances are now available in adobe format. a Home Township IC &k herg to view the Subdivision/Land Development Ordinance. D3partments Codes & Zoning Click hereto view the Zoning Ordinance. Department General 9ldinance Information If you have questions or need additional information, please contact Paul Fegley or Ryan Hovis, Monday through Friday 8:00 a.m. to 5:00 p.m. at 243- a Building-permit 8550 or send them an email. a ZoninoPerm is .1 Qr1yeway Permits Attention Pool Owners j On-Lot Septic Residents who are pool owners or plan to purchase a new pool, please be artment D Department advised that under the new PA State Act 45 Uniform Construction Code, ALL pools with a water depth of 24" or more require a building permit. The Palo-Department required swimming pool enclosures and safety devices shall comply with the Crime watch International Building Code 2003 Edition and the International Residential Parks &Recreation along with current zoning requirements. Code 2003 Edition Department , North Middleton Please remember when draining your pool this fall to contain your pool water AuthOty on your property. Fire Department Forms The North Middleton Township Codes Department would like to thank you for Newsletters your cooperation. Local. County & state_unk-s Burning Ordinance DrQuOt-Warning I-rlform"I The following rules apply for outdoor burning: NO municipal waste or recyclables are permitted to be burned. NO burning on Sundays Burning is permitted during daylight hours Drily. _ f NO burning or smoldering after dusk ''` Burning must be 50' from any building and 40' from all property lines Burning must be monitored at all times Click here to view the entire Burning Ordinance Brush, Grass & Weed Ordinance With spring coming, please note North Middleton Township has a weed ordinance. It states that vegetation (brush, grass, weeds, etc.) growing to a height exceeding eight Inches on any lot or tract of ground in the township is considered to be a nuisance. All vegetation on any premises growing to a height exceeding eight inches shall be cut by the owner, lessee, or person having a present interest in real estate. Failure to comply is a violation of the Brush, Grass & Weed Ordinance. Click here to view the entire Brush, Grass & Weed Ordinance http://www.northmiddleton-township.org/ccnorthmiddleton/cwvlview.asv?A=2346&0=466420 6/26/2006 Content Last Modified on 5/912006 10:25:15 AM North Middleton Township 2051 Spring Road Carlisle, PA 17013 Phone: 717-243-8550 Fax: 717-243-1135 http://www.northmiddleton-township.orglccnorthmiddletonlcwplview.asp?A=2346&Q=466420 6/26/2006 -o ' 3URMING, OUTOOOR [HISTORY: Adopted by the Board of Supervisors of the Township of North Middleton 10-18-1994 by Ord. No. 94-4. Amendments noted where applicable.] GENERAL REFERENCES Junkyards - See Ch. 120, Nuisances - See Ch. 134. Padre and recreation areas - See Ch. 140. Solid waste and recycling - See Ch. 170. § 92-1. Short title. This chapter shall be known and may be cited as the "North Middleton Township Outdoor Burning Ordinance." § 92-2. Definitions. The following words and phrases, when used in this chapter, shall have the meaning ascribed to them in this section, except where the context clearly indicates or requires a different or contrary meaning: MATERIAL - Material permitted to be burned outdoors will exclude all municipal waste materials required to be properly disposed of under local, state, and federal solid waste management and recycling regulations. PERSON - Any natural person or persons, partnership, association, corporation, firm, fictitious name or any other individual or business entity or their agents. PROHIBITED MATERIALS - All those items set forth in § 92-4A(1) to and including (7). SMOLDERING - The same meaning as "burning; and any smoldering shall be deemed a burning. § 92.3. Fires prohibited on public property; exceptions. No person shall set, cause to be set, maintain or permit to be maintained any fire of any kind, including the burning of any prohibited material, upon any of the streets, sidewalks, alleys, or public grounds in North Middleton Township, unless specifically authorized by the Board of Supervisors or its appointed agent, or, in the case of the municipal parks, in appliances designed for the preparation of food. § 92-4. Restrictions on fires on private property. No person shall cause or permit to be caused any outdoor or open burning of any kind, including the burning of prohibited material, upon any private property owned or occupied in North Middleton Township, except under the following conditions: A. No outdoor or open burning of any municipal waste material regulated by local, state, or federal solid waste management and recycling control procedures or hazardous waste materials shall be permitted, including but not limited to: (1) Household trash, paper products, cardboard, garbage, food waste. (2) Tires, rubber, plastic, fiberglass materials. (3) Upholstered furniture, mattresses, box springs. (4) Building materials containing petroleum-based products, including but not limited to shingles, roll roofing, tar paper (felt), foam sheathing, insulation, vinyl siding and floor covering, carpet, plastic pipe, fiberglass materials, plumbing fixtures, packing materials. (5) Waste oil, paint, thinners, solvents, household cleaning products. (6) Pesticides and herbicides. (7) Electrical components and wiring. B. All outdoor and open burning shall occur between sunrise and sunset on Monday through and including Saturday. No burning shall be permitted on Sundays. C. No outdoor and open burning shall be permitted within 50 feet of any building, whether or not owned by any person setting the fire and whether or not occupied, nor within 40 feet of any property line. http://www.e-codes.generalcode.com/searchresults.asp?cmd=getdocTofC&index=l 829_A&filename... 6/26/2006 ' d. No outdoor and open burning or smoldering shall be permitted between sunset and sunrise. E. All burning must take place in fireplaces, noncombustible containers or incinerators, or appliances designed to prepare foods. F. All fires shall be maintained and kept under the supervision of an adult person actually at the scene of the fire at all times. G. All fires must be entirety extinguished and not permitted to bum or smolder after sunset. H. Exceptions. The requirements of Subsections D through G do not apply where the open burning operations do not create a nuisance or safety hazard as may be determined by Township official or Police Department and result from: (1) A fire set to prevent or abate a fire hazard, when approved by the Department of Environmental Protection (DEP), or other appropriate state or federal agency, and set by or under the supervision of a public officer. (2) Any fire set for the purpose of instructing personnel in fire fighting when approved by the DEP, or other appropriate state or federal agency. (3) A fire set for the prevention and control of disease or pests, when approved by the DEP, or other appropriate state or federal agency. (4) A fire set in conjunction with the production of agricultural commodities in their unmanufactured state on the premises of the farm operation. (5) A fire set solely for recreational or ceremonial purposes. (6) A fire set solely for cooking food. (7) A fire set in order to clear land, provided that the proper authorities are notified of the controlled bum. § 92-5. Temporary restrictions. [Amended 1-17-2002 by Ord. No. 2002.11 ,The Board of Supervisors, by resolution, when it is deemed to be in the interest of public health and safety, may impose a "temporary partial or full ban on burning, including but not limited to the following: open burning, burning in receptacles, campfires, charcoal grilles, exterior fireplaces, agricultural purposes and for the purpose of clearing land. Such a ban shall be reviewed from time to time and lifted when the condition(s) resulting in the imposing of the ban no longer exist In addition, the Board of Supervisors, by resolution, may delegate to the Township Fire Chief or to the Township Manager ttie authority to impose a temporary partial or full ban on burning, as well as the lifting thereof, based upon the criteria and under the circumstances set forth herein. The Imposition by the Township Fire Chief or Township Manager of a partial or full ban on burning, as well as the lifting thereof, is to be ratified and confirmed by the Board of Supervisors, by resolution, at the next regularly scheduled meeting of the Board of Supervisors following the action taken by the Township Fire Marshal or Township Manager. § 92.6. Violations and penalties. Any person who violates or permits a violation of this chapter shall, upon conviction in a summary proceeding brought before a District Justice under the Pennsylvania Rules of Criminal Procedure, be guilty of a summary offense and shall be punishable by a fine of not less than $200 nor more than $1,000, plus costs of prosecution. In default of payment thereof, the defendant may be sentenced to imprisonment for a term not exceeding 90 days. Each day or portion thereof that such violation continues or is permitted to continue shall constitute a separate offense, and each section of this chapter that is violated shall also constitute a separate offense. http://www.e-codes.goneralcode.com/searchresults.asp?cmd=getdocTofC&index=1829_A&filename... 6/26/2006 'k r of Contents 'Township of North Middleton, PA - CODE OF THE TOWNSHIP OF NORTH MIDDLETQN,,PE14NSYLVAN16 - PART 1: ADMINISTRATIVE LEGISLATION +, Chapter 1: GENERAL PROVISIONS + Chapter T AUTHORITIES,.MUNICIPAL. + Chapter 15: FIRE COMPANY + Chapter 21: MANAGER Chapter 26: PENSIONS AND RETIREMENT + Chapter 31: PLANNING COMMISSION +, Chapter 35:_ POLICE + Chapter 41: RECREATION BOARD + Chapter 45_ SALARIE$ AND COMPENSATION - PART 11: GENERAL LEGISLATION + Chapter 66: ALARMS Chapter 70_ANIMALS Chapter 76: BRUSH, GRASS AND WEEDS Chapter 80: BUILDING CONSTRUCTION. *! Chapter 86_BUILDINGS, NUMBERING OF Chapter 92: BURNING, OUTDOOR + Chapter 98_ CURFEW + Chapter 10.2; DISORDERLY_CONDUCT + Chapter 106: DRUG PARAPHERNALIA + Chapter 1.12.; FLOODPLAIN MANAGEMENT 1 +, Chapter 120: JUNKYARDS + Chapter 126: LOITERING + Chapter 134;_NUISANCES +- Chapter 140: PARKS AND RECREATION AREAS +' Chapter 146: PEDDLING AND SOLICITING + Chapter 152: REAL ESTATE SALES + Chapter 156: RENTAL PROPERTY REGISTRY + Chapter 164: SEWERS AND WATER + Chapter 170: SOLID WASTE AND RECYCLING + Chapter 180: SUBDIVISION AND LAND DEVELOPMENT +' Chapter 186; TAXATION + Chapter 196: VEHICLES AND TRAFFIC + Chapter 204: ZONING + DISPOSITION LIST http://www.e-codes.generalcode-coniltableofcontents.asp?opennodes=[1][2][75] 612612006 n CD V t , L Q-- ? u co Y .sue 4- C r`+ T- J CJ V ) t Q M V ,- I JOHN M. WHITTEN and : IN THE COURT OF COMMON PLEAS OF TERRI L. WHITTEN, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA and JAIME L. McCOY (Reisinger), NO. 06-5269 CIVIL TERM Plaintiffs: CIVIL ACTION - LAW VS. ANTHONY G. CARDONE and FRANCINE A. CARDONE, husband and wife, Defendants: NOTICE To the Plaintiffs: You are hereby notified to plead to the Preliminary Objection within twenty (20) days from service thereof or a default judgment may be entered against you. By: Supreme Court I . DL,/ 193,7 Attorney for Defendants 10 West High Street Carlisle, PA 17013 (717) 241-4311 1 ~ JOHN M. WHITTEN and : IN THE COURT OF COMMON PLEAS OF TERRI L. WHITTEN, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA and JAIME L. McCOY (Reisinger), NO. 06-5269 CIVIL TERM Plaintiffs: CIVIL ACTION - LAW VS. ANTHONY G. CARDONE and FRANCINE A. CARDONE, husband and wife, Defendants: PRELIMINARY OBJECTION AND NOW, come the Defendants, Anthony G. Cardone and Francine A. Cardone, husband and wife, by their attorney, Dale F. Shughart, Jr., Esquire, and make the following Preliminary objection to the Plaintiff's Complaint: PRELIMINARY OBJECTION NON-JOINDER OF NECESSARY PARTIES PURSUANT TO PA.R.C.P. 1028(x)(5) 1. The Complaint in this matter contains three counts, in ejectment, in quiet title, and in trespass. 2. Exhibit "E" of the Complaint is a copy of the Plan of Bungalow Lots, Sections 1-2-3, Meadow Brook Park. Although not legible on Exhibit "E", the land owned by the Plaintiffs, is, as set forth on said Plan, a Park and Recreation Area laid out on said original Plan dated March 1924 and recorded in Cumberland County Plan Book 2, Page 38. 3. As stated in the pleadings, the Defendants are the owners of Lot No. 42 and as such have rights of reasonable use of the Park property. 4. The Park/Recreation Grounds have been in continuous common use by the owners of Lots in the Plan of Lots since 1924, including the Defendants since 1984. 5. The Plaintiffs, as owners of the fee of Meadow Brook Park/Recreation Grounds, own subject to the rights of all lot owners on the Plan of Lots to use and to determine the reasonable and appropriate use of the Park and Recreation Area. 6. Plaintiffs claim Defendants wrongfully placed, inter alia, their septic system, a boat dock and other objects on the Park property and have thereby committed "continuing and numerous transitory trespasses", upon Plaintiffs, property. 7. Numerous other property owners maintain boat docks and septic systems and other objects throughout the Park, which is by the agreement and acquiescence of the lot owners having the right to use the Park, on the basis that such uses are for the benefit of all lot owners and/or do not interfere with the recreational use of the land. 8. Under the circumstances, the land owned by the Plaintiffs, upon which they claimed trespass by the Defendants, being subject to the rights of all lot owners on the Plan of Bungalow Lots, Sections 1-2-3 Meadow Brook Park, all such lot owners are indispensable parties to this action. 9. The lot owners having the right to recreational use of Meadow Brook Park are the persons who have the right of enforcement over appropriate uses of the Park, not the Plaintiffs who solely own the Park subject to the rights of the lot owners, and in the absence of an organization exercising control over the usage of the Park, all lot owners are indispensable parties to this action. WHEREFORE, Defendants pray Your Honorable Court to dismiss pursuant to Pa.R.C.P. 1028(a) (5) for non-joinder of necessary parties. Respectfully submitted, Dale F. Shugh r. Supreme Court D. 19373 10 West High Street Carlisle, PA 17013 717 241-4311 VERIFICATION Anthony G. Cardone hereby verifies that the facts set forth in the foregoing Preliminary objection are true and correct to the best of his knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications. DATE: October ?, 2006 JOHN M. WHITTEN and : IN THE COURT OF COMMON PLEAS OF TERRI L. WHITTEN, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA and JAIME L. McCOY (Reisinger), NO. 06-5269 CIVIL TERM Plaintiffs: CIVIL ACTION - LAW VS. ANTHONY G. CARDONE and FRANCINE A. CARDONE, husband and wife, Defendants: CERTIFICATE OF SERVICE AND NOW, this day of October, 2006, I, Dale F. Shughart, Jr., Esquire, attorney for Defendants, hereby certify that I have served a copy of the Preliminary objections by mailing a copy of the same by United States mail, postage prepaid, addressed as follows: John Havas, Esquire 6151 Stephen's Crossing Mechanicsburg, PA 17050 Dale F. Shugha t,J Supreme Court I. D, 1 373 35 East High Street, Suite 203 Carlisle, PA 17013 (717) 241-4311 *-' ?_ 7 ?.i-1 f' . .."'4 ...? ?? 1 ?- ,?? .5 ,t:: C. ? Yj ? , . -% SHERIFF'S RETURN - REGULAR CASE NO: 2006-05269 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHITTEN JOHN M ET AL VS CARDONE ANTHONY G ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CARDONE ANTHONY G the DEFENDANT , at 1525:00 HOURS, on the 22nd day of September, 2006 at 720 CONODOGUINET AVE CARLISLE, PA 17013 by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 4.40 Postage .39 Surcharge 10.00 R. Thomas Kline .00 32.79 ? 09/25/2006 7! 6 y/0(1 L);., JOHN HAVAS Sworn and Subscibed to By: before me this day Dendtyrh?erM 1? of A.D. I r~- SHERIFF'S RETURN - REGULAR CASE NO: 2006-05269 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHITTEN JOHN M ET AL VS CARDONE ANTHONY G ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CARDONE FRANCINE A the DEFENDANT at 1525:00 HOURS, on the 22nd day of September, 2006 at 720 CONODOGUINET AVE CARLISLE, PA 17013 by handing to ANTHONY CARDONE, HUSBAND a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00 09/25/2006 JOHN HAVAS Sworn and Subscibed to By: before me this day DepuyS,?-?heuripv of , A.D. t JOHN M. WHITTEN and TERRI L. WHITTEN, his wife, and JAIME L. McCOY (REISINGER), Plaintiffs V. ANTHONY G. CARDONE and FRANCINE A. CARDONE, husband and wife, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA No. 06-5269 CIVIL ACTION - LAW PLAINTIFFS' RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, come the Plaintiffs, JOHN M. WHITTEN and TERRI L. WHITTEN, his wife, and JAIME L. McCOY (REISINGER), and by their counsel, John Havas, Esquire, respond to the Preliminary Objections filed by Defendants as follows: DEFENDANTS' PRELIMINARY OBJECTIONS ASSERTING NON-JOINDER OF NECESSARY PARTIES PURSUANT TO Pa. R.C.P.1028(a5) 1. Admitted. 2. Denied as stated. The land claimed by Plaintiffs abutting the Conodogumet Creek at the time of said subdivision Plan was a privately owned park, with commercial facilities on it. 3. Admitted that Defendants are the owners of Lot No. 42. Denied that they have rights in use of the "Park" property beyond the limited rights stated in their deed which establishes an easement to get water from the spring area of the creek. Additionally, Defendants' trespasses on the subject land owned by Plaintiffs is not "reasonable" under any circumstances. 4. Denied as stated. As stated above, the area designated Park had been a private park with facilities provided for pay. While the owners of this private park along the creek have allowed others, I by permission, to enter the grounds of the prior private park, said permission has only been granted for activities that are not detrimental to the Property in question, and to people who have not abused the Property in question. The deeds to the lots, including Lot No. 42, give only a right of easement over the subject land to acquire spring water at the creek. 5. Denied. The area on the Plan designated "Meadow Brook Park" is distinct from that on the Plan designated "Recreation Grounds", which "Recreation Grounds" are not at issue here. Defendants and others do not have a right "to determine the reasonable and appropriate use of the park use" of the land owned in Fee Simple by the Plaintiffs, which was long ago used as a private park known as Meadow Brook Park. 6. Admitted in part and denied in part, with the need for additional clarity. Plaintiffs have claimed and will prove that Defendants not only wrongfully placed a septic system on the Property, but have stored and burned garbage type items, and dug on their Property as well. Such trespasses are clearly not the right of Defendants under any circumstances. 7. Denied that anyone other than Defendants have placed septic systems or garbage and debris on the subject Property, or have burned such on the Property. To the extent that others have built boat docks on the Property, they have done so because of direct or implicated permission granted to them by Plaintiffs to do so. 8. Denied. Other owners of the "bungalows" in the subject subdivision are not indispensable parties to this action. The Plaintiffs own the subject ground in Fee Simple, and only Defendants' obnoxious, threatening, abusive and illegal trespasses have required the Plaintiffs to bring action. Additionally, only Defendants have filed an illegal "Quit Claim Deed" which violates Plaintiffs' Fee Simple rights, and, if Defendants' incorrect logic were correct, would violate the rights of all other 2 abutting owners who Defendants claim have rights to the subject Property. Defendants never notified Plaintiffs or, to Plaintiffs' knowledge, any other neighbors before (or after) surrepEitxRWy filing their illegal quit claim deed, and therefore should be estopped from disingenuously arguing that there are "indispensable" parties to their illegal activities and trespasses in building a septic tank on Plaintiffs' property and placing and burning garbage thereon. 9. Denied. There is a distinction between the "Recreational" area and the area that previously was used as a private park, and which remains in Fee Simple title to private owners, the Plaintiffs. Defendants' argument of indispensable parties is simply a smoke screen to defend against illegally trespassing upon the subject Property by building a septic system thereon, and habitually placing garbage and debris thereon and burning it on the subject Property, all in clear trespass of Plaintiffs' Fee Simple ownership rights. Such uses clearly are not to the benefit of any "Recreational" or "Park" uses. WHEREFORE, Plaintiffs pray that Your Honorable Court dismiss Defendants' Preliminary Objections and require them to answer Plaintiffs' Complaint. Date: 0 I?p 91-d. 2007 F Respectfully submitted, The Law Office of John Havas ItD,,#"15312 51 Stephen's Crossing Mechanicsburg, PA 17050 Attorney for Plaintiffs (717) 9794840 3 VERIFICATION I, JOHN M. WHITTEN, hereby state that I am an adult individual, and am authorized by all of the Plaintiffs herein to make this Verification, and that the facts set forth in the foregoing Complaint are true to the best of my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. John M. Whitten JOHN M. WHITTEN and TERRI L. WHITTEN, his wife, and JAIME L. McCOY (REISINGER), Plaintiffs V. ANTHONY G. CARDONE and FRANCINE A. CARDONE, husband and wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-5269 CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this eof June, 2007, I, John Havas, Esquire, Attorney for Plaintiffs, hereby certify that I have served a copy of the foregoing Response to Preliminary Objections by mailing a copy of the same by United States mail, postage prepaid, addressed as follows: Dale F. Shughart, Jr., Esquire 10 West High Street Carlisle, PA 17013 5 O fem ? .? ? ..... ( ! -i co PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE -------------------------------------------------------------- (entire caption must be stated in full) cX.o-' "t qW, 0-0 L • vs. C2 i?1 J ??? kv7vu Y Term tea,, c?/ ?A+j State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): 2. Identify all counsel who will argue cases: (a) for plaintiffs: weed 7h-J (Name and Address) (b) for defendants (Name and Address) SQA C, - 11-24--J70)3 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. A-aAJ r ` a Date: Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. FLU, Tt; 2009 Nii'l' cu f' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY.. PENNSYLVANIA JOHN M.. WHITTEN and No. 06-5269 Civil Term TERRI L. WHITTEN, his wife, and JAIME L. McCOY (Reisinger), Plaintiffs V. Civil Action Law ANTHONY G. CARDONE and FRANCINE A. CARDONE, Husband and Wife, Defendants SETTLEMENT AGREEMENT This Agreement is made this day of _M 2009, between John M. Whitten and Terri L. Whitten, his wife, and Jaime L. McCoy (Reisinger), hereinafter cumulatively referred to as "Plaintiffs"), and Anthony G. Cardone and Francine A. Cardone, Husband and Wife (hereinafter cumulatively referred to as "Defendants"). Whereas, Plaintiffs are the owners in fee simple of land which runs parallel with the banks of the Conodoguinet Creek ("the Creek") (Plaintiffs' land"), and the back of lots in a subdivision known as Meadow Brook Park in Carlisle, Cumberland County, Pennsylvania. Whereas, Defendants are owners of Lot 42 in that subdivision, which borders Plaintiffs' said lands along the Creek, and are owners of a ten foot (10') strip of land along the eastern border of Lot 41 of that Plan, which also borders Plaintiffs' land along the Creek. Whereas, Plaintiffs' predecessors in title, Wayne R. Taylor and Jean K. Taylor (the father and mother of Plaintiff Terri L. Whitten, Plaintiff John M. Whitten's in-laws, and Plaintiff Jaime L. McCoy's (Reisinger's) grandparents, filed a civil action at Cumberland County Civil Action No. 99-3352, on June 3, 1999, claiming certain trespasses of their property by Defendants, and alleging Defendants were extending their septic system upon part of the property here at issue, and placing dirt upon it. Whereas, Wayne R. Taylor died on September 28, 2001, with the above described litigation still pending, and whereas, by deed dated February 19, 2002, and recorded at Cumberland County Recorder of Deeds, Deed Book 250, at page 2788, on February 28, 2002, Jean K. Taylor conveyed the property to the Plaintiffs. Whereas, after they received said conveyance, Plaintiffs attempted to settle the above described litigation with Defendants by, among other things, proposing and preparing a subdivision plan for all lot owners with abutting land along the Creek, including Defendants., to sell them fee simple rights in the land so as to extend their lot ownership to the Creek. These settlement attempts and others were not successful. Whereas, Plaintiffs have learned that after the Taylors filed the above described Civil Action at No. 99-3352, Defendants, on or about September 27, 1999, received a "Quit Claim Deed" from their predecessors in title to Lot 42 and the eastern ten foot (10') strip of Lot 41, allegedly extending their property by a strip 30 feet by 50 feet onto Plaintiffs' land. The said Quit Claim Deed was recorded by Defendants on or about September 30, 1999, at Deed Book 208, page 865, and a description of the property at issue is attached hereto and made a part hereof as Exhibit "A". That land described in Exhibit "A" is the subject of dispute set forth in Plaintiffs' Quiet Title, Trespass and Ejectment action filed in a Complaint which they themselves filed at Cumberland County Civil Action No. 06-5279, on September 8, 2006. Whereas, in addition to a Quiet Title action filed as part of the above action at Civil Action No. 06-5269, Plaintiffs also alleged certain trespasses by Defendants on their property even beyond the disputed Quit Claim area, including but not limited to the placement of garbage on their land, burning of garbage and debris on their land, and the building of a boat: dock on their land. Whereas, Defendants claim title to the disputed area pursuant to the said Quit Claim Deed and adverse possession, and have contested Plaintiffs' allegations. Whereas, Plaintiffs and Defendants have decided to settle their differences as expressed in Plaintiffs' action at Cumberland County Civil No. 06-5269, pursuant to the following terms: 1. Defendants agree to pay Plaintiffs a total of $3,000, payable in twelve (12) consecutive payments of $250 a month, the first payment to be made upon the signing of this Agreement, and then made on a monthly basis on or before the /S day of each of the consecutive next eleven months. Once the full payment of $3,000 is paid, Plaintiffs shall issue to Defendants, through their counsel, a Quit Claim Deed which grants to Defendants Plaintiffs' rights, whatever they may be , to the Quit Claim area described in Exhibit "A" hereto. Defendants' counsel shall prepare the said Quit Claim deed and file the same with the Recorder of Deeds of Cumberland County. To the extent any transfer tax is owed on such transfer, Defendants agree to pay the full amount thereof. In the event that Defendants' fail to make any of the said $250 monthly payments in a timely manner, Plaintiffs shall be entitled to keep all monies paid to that date without the responsibility of owing Defendants any money already so paid. Defendants have the right to pre-pay the full $3,000 settlement amount in respect to the money owed to receive a Quit Claim deed from Plaintiffs without penalty. Once the full payment is made pursuant hereto, the Civil Action filed at Cumberland County Civil Action No. 06-5269 shall be marked "settled and discontinued." In the event Defendants shall fail to make any payment in a timely manner, as set forth in this Agreement, this Agreement shall be null and void and all parties shall have such rights and responsibilities with regard to this litigation as though this Agreement had never been entered. 2. Defendants agree to make timely payments to the Plaintiffs by mailing a check from their undersigned Attorney's escrow account payable to Plaintiffs at 630 Conodoguinet Avenue, Carlisle, Pennsylvania 17013 no later than ten (10) days after the date the payment is due hereunder. 3. To the extent any real estate taxes or realty transfer or other taxes are owing on the Quit Claim area, those taxes shall be borne by Defendants after they receive the Quit Claim Deed thereon from Plaintiffs as settlement hereunder. 4. Defendants agree heretofore not to place any garbage, debris, or store or place any personal items, including but not limited to a boat, on Plaintiffs' land along the Creek, or to do any burning thereon at any time. The parties agree that violation of this provision shall constitute a contempt of the Court's Order approving this settlement, and that Defendants shall be responsible for all of Plaintiffs' reasonable attorneys' fees if found in contempt of this provision, as well as any damages and penalties so ordered by the Court. 5. Plaintiffs agree to permit Defendants to use the boat dock Defendants constructed on Plaintiffs' land along the Creek for as long as they own their property. Defendants agree not to extend or otherwise modify the boat dock. Defendants agree that this permission shall not run with the land. 6. Both Plaintiffs and Defendants, for themselves, their heirs, successors and assigns, acknowledge that they have been assisted and represented by counsel in entering into this Agreement, that they fully understand this Agreement and their obligations hereunder, that this Agreement in certain respects waives procedural rights upon default hereunder, which rights and waivers have been fully explained to them by their respective attorneys, and that they fully understand and agree to be bound by such waiver. Therefore, pursuant to the above terms, and agreeing to be fully bound hereby, Plaintiffs and Defendants do agree to the terms and obligations of this Settlement Agreement. John M. Whitten nthony G. Cardone cu Terri L. Whitten Mime L. McCoy (Reisin er) Plaintiffs Aka"?' a Lt F4%fteis A. Cardone Defendants Dale F. Shu for Defendants FILED ,= ',-*:CE Y rF THE 2cog DEC 10 PM 12• 5 9 3 DEC 10 2099 JOHN M. WHITTEN and : IN THE COURT OF COMMON PLEAS OF TERRI L. WHITTEN, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA and JAIME L. McCOY (Reisinger), NO. 06-5269 CIVIL TERM Plaintiffs: CIVIL ACTION - LAW VS. . ANTHONY G. CARDONE and FRANCINE A. CARDONE, husband and wife, Defendants: A RDER OF COURT AND NOW, this / day of 2009, the SETTLEMENT AGREEMENT of the parties dated k j e L41 ka- 2009, be and is hereby entered as an Order of Court. The rights and responsibilities of the respective parties shall be enforceable by the Court upon Petition to the Court to the above captioned term and number. By t Court, J. M D CC: John Havas, Esquire, Attorney for Plaintiffs Dale F. Shughart, Jr., Esquire, Attorney for Defendants RLED-OrFrE: OF THE PRnOT ONOTARY 2009 DEC i I AM iO-- 28