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HomeMy WebLinkAbout02-2364RAY E. PECK and DONNA L. PECK, Plaintiffs VS. DAVID F. McCLURE and SHERYL L. McCLURE, and DAVID F. McCLURE COMPANY, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO: CIVIL : : CIVIL ACTION - LAW : COMPLAINT AND NOW, come the Plaintiffs by their attorneys, Snelbaker, Brenneman & Spare, P.C., and aver the following causes of action: LAW OFFICES SNELBAKER, BRENNEMAN & SPARE COUNT I - EJECTMENT 1. The Plaintiffs herein are Ray E. Peck and Donna L. Peck, husband and wife, adult individuals, who reside at 309 Broad Street, Marysville, Pennsylvania. 2. The Defendants herein are: A. David F. McClure and Sheryl L. McClure, husband and wife, adult individuals, who reside at 1716 Olmsted Way East, Camp Hill, Cumberland County, Pennsylvania (hereinafter called "Individual Defendants"). B. David F. McClure Company, a corporation, having a place of business at 22 Eighth Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter called "Corporate Defendant"). 3. Plaintiffs are the owners ora parcel of real estate improved with a duplex house and separate detached dwelling house, known and numbered as 105 and 107 LAW OFFICES SNELBAKER, BReNNeMAn & SPARE Eighth Street, in the Borough of New Cumberland, Cumberland County, Pennsylvania, having acquired the same by deed from Minnie J. Reichert, widow, dated January 11, 1971, and recorded on January 12, 1971, in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Deed Book "X", Volume 23, Page 978, (hereinafter called "Plaintiffs' Principal Property"). 4. At the time of Plaintiffs' acquisition of Plaintiffs' Principal Property, a separate parcel of land improved as a yard with lawn, shrubbery and trees existed on the east side of and adjoining said Plaintiffs' Principal Property, (hereinafter called "Subject Premises"), the said been developed over many years by Plaintiffs' grantor above, to wit: Minnie J. Reichert, and maintained thereafter by Plaintiffs. 5. According to the land records of Cumberland County, Northern Central Railway Company is the last owner of the Subject Premises by conveyance which specifically identifies land comprising the Subject Premises upon the following chain of title: A. Deed Book "F", Volume 4, Page 325: Estate of Rudolph Martin to Marian E. Willett, dated March 7, 1885, recorded on May 8, 1888 [I00 acres and 127 perches in Lower Allen Township.] B. Deed Book "O", Volume 6, Page 17: Heirs of Marian E. Willett to The Manor Real Estate and Trust Company, dated November 16, 1903, recorded on November 21, 1903. [Containing .344 of an acre, more or less, in Lower Allen Township, being a portion of the land described in A above.] C. Deed Book "J", Volume 7, Page 363: The Manor Real Estate and Trust LAW OFFICES SNELBAKER, BRENNEMAN & SPARE Company to Northern Central Railway Company, dated December 26, 1908, recorded on January 26, 1909 [part of parcel #2 in Lower Allen Township: 110 feet by 136 feet on the northwest comer of Donald Street and Water Street.] 6. The Subject Premises consists ora rectangle of land having a width of fifty (50) feet and a length of one hundred thirty-six (136) feet, the southern side width or front of said land being along the north side of Eighth Street and the western side being coincidental with the eastern side of Plaintiffs' Principal Property. 7. Plaintiffs took possession of Plaintiffs' Principal Property and the Subject Premises contemporaneously with the delivery of the deed on January 11, 1971, as recited in paragraph 3 hereinabove. 8. Plaintiffs' possession of the Subject Premises has been actual, exclusive, continuous and visible from January 11, 1971 in an open, distinct and notorious and hostile manner as against the whole world and any record owner for a period in excess of twenty-one (21) years, such possession being a continuation of the possession of their grantor, to wit: Minnie J. Reichert, as recited above. 9. As a result of the possession averred in paragraphs 7 and 8 above, Plaintiffs acquired title to the Subject Premises in fee simple by the doctrine of adverse possession. 10. Subsequent to September 19, 1996, Defendants, without Plaintiffs' knowledge, or agreement, initiated possession of a substantial portion of the Subject Premises by yard, removing trees and shrubbery, excavating and removing the soil and a macadam area from Eighth Street to a building erected by Individual Defendants on the Subject Premises on the east. -3- 11. Subsequent to September 19, 1996, Individual Defendants developed their land adjoining the Subject Premises on the east by constructing a commercial building which is presently occupied by Corporate Defendant as apparent tenant of Individual Defendants. 12. Defendants have no title to the Subject Premises. 13. At all times since the events set forth in paragraphs 10 and 11 aforesaid, Defendants have possessed a substantial portion of the Subject Premises in defiance of Plaintiffs' title and right of possession. 14. Despite Plaintiffs' requests to Defendants to restore the Subject Premises and discontinue use and possession thereof, Defendants have failed and refused to do so. WHEREFORE, Plaintiffs request your Honorable Court to: (1) Enter judgment in favor of Plaintiffs against Defendants for possession of the Subject Premises, together with detention damages; (2) Enter an order directing Defendants to restore the Subject Premises to its condition as existed before Defendants' possession thereof; and (3) Order Defendants to pay the costs of this action. LAW OFFICES SNELBAKER, BRENNEMAN & SPARE COUNT II - TRESPASS 15. Paragraphs I through 14 inclusive hereinabove are incorporated herein by thereto as though set forth at length herein. 16. As a result of Defendants' unlawful use and possession of the Subject Premises, Defendants have destroyed Plaintiffs' lawn, shrubbery and trees and removed Plaintiffs' soil to -4- LAW OFFICES SNELBAKER. BRENNEMAN & SPARE Plaintiffs' damage in an amount to be determined. 17. As a result of Defendants' unlawful use and possession of the Subject Premises, Defendants have deprived Plaintiffs of the use and enjoyment of the Subject Premises to Plaintiffs' damage in an amount to be determined. 18. Defendants' unlawful use and possession have been continuous and the Plaintiffs' damages have continued. WHEREFORE, Plaintiffs request your Honorable Court to enter judgment in favor of Plaintiffs and against Defendants for money damages in an amount believed to be in excess of $30,000.00, and the costs of this action. COUNT III - EJECTMENT 19. Paragraphs 1 through 3 inclusive hereinabove are incorporated herein by reference thereto as though set forth at length herein. 20. Plaintiffs' Principal Property was part of a larger tract of land which was subdivided in 1896 into lots, streets and alleys via plan of lots known as "Elkwood," said plan of lots being recorded in the Office of the Recorder of Deeds aforesaid in Deed Book "M", Volume 5, Page 498, said plan of lots hereinafter called "Elkwood Plan," and incorporated herein by reference to said public record. 21. Individual Defendants purportedly acquired interests in certain real estate in the Borough of New Cumberland (collectively hereinafter called "McClure Land") by the following deeds: A. Deed from M. Wayne and Patricia Hostetler dated April 30, 1996 and -5- recorded on May 1, 1996, in the Recorder's Office aforesaid in Deed Book 139, Page 495; and B. Quitclaim deed from Consolidated Rail Corporation dated September 3, 1997 and recorded on September 5, 1997 in said Recorder's Office in Deed Book 164, Page 63. 22. The McClure Land is also composed of portions of the Elkwood Plan. 23. The Elkwood Plan contains, inter alia, certain streets known as "Water Street" "Donald Street" (now 8th Street), portions of which were purportedly included in the conveyance of the McClure Land. 24. Subsequent to September 19, 1996, Individual Defendants developed the McClure Land and portions of Water Street and Donald Street (now 8t~ Street) by erecting thereon a commercial building, thereby obstructing said Water Street and Donald (8th) Street. 25. Plaintiffs have private rights of passage in, over, upon, across and through said Water Street and Donald Street (now 8th Street) as parties owning property within the Elkwood ?lan. 26. Individual Defendants' and Corporate Defendant's (as lessee) use and d obstruct and interfere with Plaintiffs' right of passage within the limits of Water Street and Donald Street (now 8th Street) and prevent their free and uninterrupted passage LAW OFFICES SNELBAKER, BRENNEMAN & SPARE WHEREFORE, Plaintiffs request your Honorable Court to: (1) Enter judgment in favor of Plaintiffs and against Defendants for -6- LAW OFFICES SNELBAKER, BRENNEMAN possession for purposes of access within the limits of Water Street and Donald Street (now 8th Street) as shown on the Elkwood Plan, together with detention damages; (2) Enter an order directing Defendants to remove from said Water Street and Donald Street (now 8th Street)(except for access purposes in common with Plaintiffs and other owners of property within the Elkwood Plan) and to restore said portions of Water Street and Donald Street (now 8th Street) to their condition as existed before Defendants' use, development and possession thereof; and (3) Order Defendants to pay the costs of this action. SNELB~AN & SPARE, P.C. x,~Richard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Plaintiffs -7- LAW OFFICES SNELBAKER. BRENNEMaN & SPARE VERIFICATION We, the undersigned, being the Plaintiffs in the foregoing Complaint, do hereby verify that the facts set forth therein within their personal knowledge are true and correct and that as to facts supplied by others, they believe to be true and correct. We understand that any false statements made in said Complaint are subject to the penalties of 18 Pa. C.S. {}4904 relating to unsworn falsification to authorities. Donna L.Peck Dated:/~1/~/$ , 2002 E. PECK and DONNA L. PECK, Plaintiffs VS. DAVID F. McCLURE and SHERYL L. McCLURE, and DAVID F. McCLURE COMPANY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: 0Q-,,T36q CIVIL CIVIL ACTION - LAW NOTICE TO: DAVID F. McCLURE and SHERYL L. McCLURE, and DAVID F. McCLURE COMPANY, Defendants You have been sued in court. If you wish to defend against the claims set forth in the 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 a 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 LAW OFFICES SNELBAKER, BRENNEMAN & SPARE YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO k 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 (717) 249-3166 S NELB~~N & SP ARE, P.C. g-ttorneys for Plaintiffs 2002 SHERIFF'S RETURN - CASE HO: 2002-02364 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PECK RAY E ET AL VS MCCLURE DAVID F ET AL REGULAR CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPI~AINT & NOTICE was served upon MCCLURE DAVID F the DEFENDANT , at 1742:00 HOURS, at 1756 CONWAY HEATH CAMP HILL, PA 17011 SHERYL L MCCLURE on the 20th day of May by handing to 2002 a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.04 Affidavit .00 Surcharge 10.00 .00 39.04 Sworn and Subscribed to before me this 3~ day of ~.~ ~2_~ A.D. / ~rothdno[ary So Answers: R. Thomas Kl±ne 05/21/2002 SNELBAKER BRENNF2V~A_N SPARE ~/~/ Deputy ~er~-f~f SHERIFF'S RETURN - GASE NO: 2002-02364 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PECK PJiY E ET AL VS MCCLURE DAVID F ET AL REGULAR CPL. MICHAEL BARRICK , Cumberland County, Pennsylvania, who being duly says, the within COMPLAINT & NOTICE was MCCLURE SHERYL L Sheriff or Deputy Sheriff of sworn according served upon to law, the DEFENDANT , at 1742:00 HOURS, on the 20th day of May at 1756 CONWAY HEATH , 2002 CAMP HILL, PA 17011 by handing to SHERYL L MCCLURE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this 3~ day of /P~othG~tgry ' ' So Answers: R. Thomas Kline 05/21/2002 SHERIFF'S CASE'NO: 2002-02364 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PECK RAY E ET AL VS MCCLURE DAVID F ET AL RETURN - REGULAR BRYAN WARD Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon DAVID F MCCLURE COMPANY the DEFENDANT , at 1638:00 HOURS, on the 17th day of May at 22 EIGHTH STREET 2002 NEW CUMBERLAND, PA 17070 by handing to JUSTIN MCCLURE, GM a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 11.73 Affidavit .00 Surcharge 10.00 .00 27.73 Sworn and Subscribed to before me this 3z~_ day of £ ~rothonotary So Answers: R. Thomas Kline 05/21/2002 SNELBAKER BRENNEMAN SPARE / Deity She-riff Ray E. Peck and Donna L. Peck, Plaintiffs · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA · No. 02-2364 · CIVIL ACTION - LAW David F. McClure and Sheryl L. McClure, : and : David F. McClure Company, : Defendants : ANSWER AND NEW MATTER Count I 1. Admitted. 2. Admitted except as to individual defendants' residence address, which will be separately provided to Plaintiff's counsel. 3. Admitted that Plaintiffs claim ownership of "Plaintiffs' Principal Property". After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial. 4. Denied. The only use made by Plaintiffs and/or Plaintiffs' alleged grantor of any portion of the "Subject Premises" was the stoning of a portion of the Subject Premises, being the current and/or former location of a 10' unopened alley, which Plaintiffs and others have used for access, and which alley/driveway was bordered on either side for some portion of its lengths by a strip of grass approximately two feet in width. This same portion of the Subject Premises has likewise been used and occupied by the Borough of New Cumberland and various utilities who have installed, continue to access and maintain facilities on the Subject Premises. The bulk of the Subject Premises has historically consisted of a wooded hillside which for several decades has been trimmed and maintained by Defendants and their predecessors in title. In recent years the alley/driveway itself has been maintained on several occasions by Defendants. 5. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial. 6. Denied. While it is admitted that Plaintiffs claim a 50' x 136' parcel, Defendants, pending further investigation, are currently without knowledge or information to confirm that a parcel of such dimensions actually exists at such location. 7. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and stdct proof thereof is demanded at tdal. 8. Denied. To the contrary, Plaintiffs and their alleged grantor have, at most, intermittently utilized a small portion of the Subject Premises, nonexclusively with the Borough of New Cumberland, various utilities, the Defendants and other third parties, in a manner consistent with its originally intended use as an alley. Further, Plaintiffs use has neither been distinct nor notorious nor hostile, but rather, consistent with use by such others. Defendants answer to Paragraph 4 above is incorporated by reference. 9. Denied as a conclusion of law to which no responsive pleading is required. 10. Denied. Defendants, in plain sight of Plaintiffs and the public generally, with Plaintiffs' consent implied by their lack of objection for many years, did not initiate but merely continued their possession of a substantial portion of the Subject Premises, not by destroying same, but by adding soil to reduce the severity of an incline on the Subject Premises and paving same for the convenience and safety of those traveling thereupon. 11. Admitted. 12. Denied as a conclusion of law to which no responsive pleading is required. By way of further answer, Defendants aver title to the bulk of the Subject Premises by adverse possession. 13. Admitted that Defendants and their predecessors in title have possessed a substantial portion of the Subject Premises for several decades. Its is denied that same is in defiance of any title or right of possession in Plaintiffs. 14. It is denied that Plaintiffs have any right to request Defendants to make any changes of any nature to the Subject Premises. WHEREFORE, Defendants request this Honorable Court to dismiss Plaintiffs' Complaint with prejudice and order Plaintiffs to pay the costs of this action. Count II 15. Paragraphs 1 through 14 above are incorporated herein by reference. 16. Denied as a conclusion of lawto which no responsive pleading is required. By way of further answer Defendants incorporate Paragraphs I through 14 above. 17. Denied as a conclusion of law to which no responsive pleading is required. By way of further answer Plaintiffs have and continue to utilize the Subject Premises for access to the rear of their property in the same manner as they have in the past. 18. Denied as a conclusion of law to which no responsive pleading is required, by way of further answer Paragraphs 4, 8 and 10 above are incorporated by reference. WHEREFORE, Defendants request this Honorable Court to dismiss the Plaintiffs' Complaint with prejudice and order Plaintiffs to pay the costs of this action. Count III 19. Paragraph I through 18 are incorporated herein by reference. 20. Denied. While Plaintiffs' Principal Property appears to be generally within the area of the alleged plan of lots averred by Plaintiffs, it is not apparent from the copy of said plan available to Defendants that Plaintiffs' Principal Property was intended to be a specific part thereof. Pending further investigation of such facts Plaintiffs' averment is denied. deeds: 21. Denied. Defendants acquired interests in their real estate by the following A. Deed Book 164 at Page 63; B. Deed Book 138 at Page 495; and C. Deed Book 197 at Page 892. 22. Admitted that at least some portion of the real estate owned by Defendants was the subject of the averred plan of Elkwood. 23. Admitted. 24. It is admitted that Defendants have developed portions of their real estate. It is denied as a conclusion of law that Defendants have obstructed any streets. 25. Denied as a conclusion of law to which no responsive pleading is required. 26. Denied as a conclusion of law to which no responsive pleading is required. By way of further answer, Defendants aver that no conduct on Defendants' part has obstructed or interfered with Plaintiffs ingress or egress to and from their property, but rather, has improved same. WHEREFORE, Defendants request this Honorable Court dismiss Plaintiffs' complaint and Order Plaintiffs to pay the costs of this action. NEW MATTER 27. Plaintiffs and their predecessors in title have observed Defendants and their predecessors in title maintaining, stodng materials upon, clearing, grading and paving the Subject Premises for several decades without objection thereto such that Plaintiffs claims are barred by laches, waiver, estoppel and consent. 28. Neither Plaintiffs nor their predecessors in title have ever paid real estate taxes upon the Subject Premises. 29. Neither Plaintiffs nor their predecessors in title have ever enclosed all or any portion of the Subject Premises. 30. The portion of the Subject Premises over which possession, dominion and control has been and continues to be exercised by Defendants and their predecessors in title as averred in Paragraphs 4 and 10 above, consists of the easternmost portion of the Subject Premises, approximately 36 feet in width and 136 feet in length, i.e. the entirety of the Subject Premises exclusive of the aforementioned alley/driveway and narrow strip of grass on either side, title to which portion has been acquired by Defendants by adverse possession. 31. Plaintiffs have not filed the sworn statement prescribed by the ACt of May 31, 1901, P.L. 352 (68 P.S. § 81, et seq.). Laws, Staruch ~,~ ~ Atty ID No. 23887 20 Erford Rd., Suite 305 Lemoyne, PA 17043 (717) 975-0600 Attorneys for Defendants VERIFICATION Subject to the penalties of 18 Pa.C.S. Section 4904 (relating to unsworn falsification to authorities), I, David F. McClure, individually and as President of David F. McClure Company, hereby declare that, the facts set forth in the foregoing Answer: and New Ma~.~_e]: are true and correct to the best of my knowledge, information and belief. CERTIFICATE OF SERVICE I, W. Scott Staruch, Esq., hereby certify that on the 24th day of June, 2002, I served a true and correct copy of the Answer and New Matter by United States First Class Mail, postage prepaid, upon the following: Richard C. Snelbaker, Esq. Snelbaker, Brenneman & Spare, P.C. ~. West Main St. P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorney for Plaintiffs LAWS, STARUCH & PISARCIK 20 Erford Road, Suite 305 Lemoyne, PA 17043 (717) 975-0600 RAY E. PECK and DONNA L. PECK, Plaintiffs Vo DAVID F. McCLURE and SHERYL L. McCLURE and DAVID F. McCLURE COMPANY, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 02-2364 : : Civil Action - Law DEFENDANTS ANSWERS TO PLAINTIFFS' INTERROGATORIES (FIRST SET) DIRECTED TO DEFENDANTS laW OFFICES SNELBAKER, BRENNEMAN & SPARE INTERROGATORIES Identify each and every fact witness, lay witness and/or expert witness which you intend to offer or call in your case in chief or by way of rebuttal in an effort to prove any of the matters set forth in Defendants' Answer. ANSWER: Currently, Defendants intend to call David f. McClure as a fact witness. To date, no expert witness has been retained by Defendants. Defendants will amend their list of witnesses as necessary. laW OFFICES SNELBAKER. BR£NNEMan & SPARE For each wimess identified in the answer to the preceding Interrogatory, briefly state the subject matter of each individual's proposed testimony. ANSWER: David f. McClure - Liability and Damages. LAW OFFICES SNELBAKER, BRENNEMAN & SPARE Identify all documents or other objects which you intend to introduce as exhibits at the trial of this matter, whether in the Defendants' case in chief or by way of rebuttal. ANSWER: At the present time, Defendants have not yet determined their trial exhibits. LAW OFFICES SNELBAKER. BRENNEMAN & SPARE 4. With regard to each and every expert witness identified in the answer to Interrogatory 1, state: (a) The subject matter on which the expert is expected to testify. (b) The substance of the facts and opinions to which the expert is expected to testify; (c) A summary of the grounds for each opinion; (d) Whether the facts and opinions to which the expert is expected to testify are contained in any written report, memorandum or other document, and if so, identify the name and address of the present custodian of said report, memorandum or other document. (A copy of the expert report may be attached in lieu of answering this Interrogatory.) ANSWER: See Defendants' response to Interrogatory No. 1 above. LAW OFFICES SNELBAKER. BRENNEMAN & SPARE With reference to paragraph 4 of your Answer, state all of the facts on which you rely to support your contentions that Plaintiffs and their predecessors in title made use only of the Subject Premises to the extent of"stoning of a portion" thereof"being the current and/or former location of a 10' unopened alley" which was "bordered on either side for some portion of its lengths by a strip of grass approximately two feet in width". ANSWER: Defendants have personally observed the Subject Premises since approximately 1970 and Plaintiffs' and others' use of the portion that was stoned. 1AW OFFICES SN£LBAKER. BRENNEMAN & SPARE o With reference to paragraph 4 of your Answer, state the basis of your assertion that a "10' unopened alley" exists or existed within the Subject Promises, indicating inter alia, the source or manner of creation of said alleged alley and its precise location within the Subject Premises. ANSWER: This 10-foot alley is referred to in Borough of New Cumberland Ordinance No. 34, 1936, entitled "Vacating and Re-locating a Section of Water Street" and is shown on Cumberland County Tax Map No. 26-24-811. 10 LAW OFFICES SNELBAKER, BRENNEMAN 8: SPARE o With reference to paragraphs 4 and 8 of your Answer, state all of the facts on which you rely to support your allegation that the Borough of New Cumberland has/had "used and occupied" the Subject Premises including, but not limited to, the nature, location and date(s) of such use and occupation, and identify all persons physically using and occupying the same on behalf of the Borough. ANSWER: The Borough of New Cumberland and installed and continues to maintain sewage lines through the Subject Premises for the use of Borough residents. 11 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE With reference to paragraphs 4 and 8 of your Answer, identify all "utilities" who have "installed, continue to access and maintain facilities on the Subject Premises" and provide precise information as to the nature and type of such facilities and the location(s) of each such facility. ANSWER: Pennsylvania Amedcan Water Co. - Water line. 12 SN£LBAKER, BRENNEMAN SPARE With reference to paragraph 4 of your Answer, identify the persons who trimmed and maintained the alleged "wooded hillside" within the Subject Premises and who maintained the alley/driveway thereon, and state the date of each such action and the nature thereof. ANSWER: David f. McClure from 1966-1971 and 1996 to present. Employees of N. Frank McClure Company from approximately 1950-1971. 13 LAW OFFICES ~NELBAKER. ~RENNEMAN & SPARE 10. With reference to paragraph 8 of your Answer, identify the "third persons" and "others" whom you allege "utilized" the Subject Premises. ANSWER: Borough of New Cumberland PA American,Water Co. 14 LAW OFFICES SNELBAKER, BRENNEMAN & SPARE 11. With reference to paragraph 10 of your Answer, state the location and quantity of the alleged addition of soil and the date(s) on which such soil was deposited and the location and date(s) of alleged paving installed for the "convenience and safety of those traveling thereon". ANSWER: Fill and stoned from September through December 1996. Paved in 1997. 15 [.AW OFFIC:£S SNELBAKER. BRENNEMAN & SPARE 12. With reference to paragraph 10 of your Answer, identify those persons who allegedly traveled on the Subject Premises as alleged in the last line of said paragraph. ANSWER: Defendant, corporate Defendant and its employees and customers, Plaintiffs' tenants and their invitees, PP&L employees, Conrail and Norfolk-Southern employees, police and Borough of New Cumberland employees. 16 LAW OFFICES SNELBAKER, BRENNEMAN ~ SPARE 13. With reference to paragraph 12 of your Answer, state all of the facts on which you rely to support your allegations that the Defendants have obtained title "to.the bulk of the Subject Premises by adverse possession". ANSWER: Beginning in the late 1960's, Defendant David F. McClure personally maintained the bulk of the Subject Premises. Defendants and their predecessors in title continuously maintained same, including, but not limited to, cutting and/or cleadng of grass and brush, the addition of soil to reduce the severity of an incline, grading and paving same, and storing materials upon same, and also stored automobiles and other equipment on the Subject Premises. 17 LAW OFFICES SNELBAKER, BRENNEMAN & SPARE 14. With regard to paragraph 21 of your Answer, state the basis of your allegation that you have acquired interests in the Subject Premises by reason of the material contained in "Deed Book 197 at Page 892", said response to include, but not be limited to, a description of the portion of the Subject Premises in which such interest is claimed and the basis of any interest claimed against the Borough of New Cumberland and acquired by Defendants. ANSWER: Plaintiffs are referred to the Complaint of Defendants David F. McClure and Sheryl L. McClure at Cumberland County Civil Action No. 99-1074 and the Order of Court dated April 15, 1999 and recorded in Deed Book 197 at Page 892, copies of which are attached hereto. 18 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE 15. With reference to paragraph 26 of your Answer, state all of the facts on which you rely to support the allegations that Defendants have "improved" Plaintiffs~ ingress or egress to and from their Principal Property. ANSWER: Defendants have made repairs to the stoned portion of the Subject Premises on several occasions. Defendants have no objections to Plaintiffs use of the portion of the Subject Premises which has been paved by the Defendants for ingress and egress. On numerous occasions in every winter since 1996 (including the Blizzard of 1996), Defendants have plowed the Subject Premises, including the ddveway used by Plaintiffs, without objection or complaint by Plaintiffs. LAWS, STARUCH & PISARClK 20 Erford Road, Suite 305 Lemoyne, Pa 17043 (717) 975-0600 19 DAVID F. McCLURE and SHERYL L. McCLURE, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THE BOROUGH OF NEW CUMBERLAND, Defendant CIVIL ACTION - LAW NO. 99-1074 ACTION TO QUIET TITLE ORDER OF COURT AND NOW, this 15th day of April, 1999, upon consideration of a Stipulation of Parties filed on April 15, 1999, indicating that the Defendant does not oppose Plaintiffs' Action to Quiet Title nor does Defendant oppose Plaimiffs' request that Defendant's rights to that portion of property described below be extinguished, Judgment is hereby entered in favor of Plaintiffs against Defendant. It is hereby ordered and decreed that Defendant is forever barred from asserting any claims, liens or interests which it may have in the real estate described herein and that title in fee simple is vested in Plaintiffs, .David F. McClure and Sheryl L. McClure, husband and wife, as the true and lawful owners of the following tract of land: BEGINNING at a poim at lands now or late of David and Sheryl McClure, at the intersection of the Northern Right-of-Way Line of Water Street (a '50' unopened right-of-way) and the Western Right-of-Way Line of Eighth Street (a 50' right-of- way); thence from said point of beginning through Water Street along the Western Right-of-Way Line of Eighth Street South 62 degrees 04 minutes 53 seconds West, a distance of 25.00 feet to a point on the Center Line of Water Street (a 50.00' unopened right-of-way); thence along the Center Line of Water Street North 27 degrees 55 minutes 07 seconds West, a distance of 136.00 feet to a point; thence through a portion of Water Street (a 50.00' unopened right-of-way) along lands now or late of David and Sheryl McClure South 62 degrees 04 minutes 53 seconds West, a distance of 15.00 feet to a point at the Southern Right-of-Way Line of Water Street (a 40.00' unopened right-of-way); thence along lands now or late of David and Sheryl McClure North 27 degrees 55 niinutes 07 seconds West, ~ distance of 748.61 feet to a point at lands of the Borough of New Cumberland; thence along said lands of the Borough of New Cumberland (crossing Water Street) North 62 degrees 04 minutes 53 seconds East, a distance of 40.00' to a point at Lot No. 1 (Lands of David and Sheryl McClure); thence along Lot No. 1 and other lands now or late of David and Sheryl McClure South 27 degrees 55 minutes 07 seconds East, a distance of 884.61 feet to a point, the place of BEGINNING. SAID unopened right-of-way of Water Street contains 33,344.40 square feet or 0.765z1 acres. and, Plaintiffs are directed to file a tree and correct copy of this Order of Court with the Office .of the Recorder of Deeds of Cumberland County as evidence of ownership of record. BY THE COURT, DAVID F. MeCLURE and SHERYL L. McCLURE, Plaintiffs V. THE BOROUGH OF NEW CUMBERLAND Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . NO. 99- ,/(j-7~/~ ~ ACTION TO QUIET TITLE 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 Lawyer Referral Service 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la cone. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualguier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propiendades o otros derechos importantes para usted. LLEVE ESTA DEMANDAA UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SOFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONAL O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association Lawyer Referral Service 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Michael J. Hanf~sqUire~/ Attorney ID No. 57976 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attomeys for Plaintiffs DAVID F. McCLURE and SHERYL L. McCLURE, Plaintiffs Vo THE BOROUGH OF NEW CUMBERLAND Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99- ACTION TO QUIET TITLE COMPLAINT AND NOW, this 24th day of Febr~_ary, 1999, come the Plaintiffs, David F. McClure and Sheryl L. McClure, by and through their attorney, Michael J. Hanfi, and file the following Complaint to Quiet Title and, in support thereof, aver as follows: 1. The Plaintiffs, David F. McClure and Sheryl L. McClure are husband and wife and reside at 1716 Olmstead Way East, Camp Hill, Cumberland County, Pennsylvania, 17011. 2. The Defendant is a Pennsylvania municipality with a business address of 1120 Market Street, New Cumberland, Cumberland County, Pennsylvania. 3. The Plaintiffs are the owners of a tract of land in the Borough of New Cumberland, Cumberland County, Pennsylvania, which was acquired by deed of Consolidated Rail Corporation ("Conrail"), a Pennsylvania corporation, to David F. McClure and Sheryl L. MeClure, husband and wife, dated September 3, 1997, recorded September 5, 1997 in Deed Book Volume 164 at Page 63, said premises are described as follows: ALL THAT CERTAIN piece or parcel of land of the Grantor, together with any improvements thereon, as referenced on Grantor's property record, filenames 132508060 and 132508160, situate in the Borough of New Cumberland, County of Cumberland and Commonwealth of Pennsylvania, which is bounded and described in accordance with a Plat of survey identified as "FINAL SUBDIVISION PLAN OF A PORTION OF CONRAIL PROPERTY", dated January 20, 1997 and revised to June 2, 1997, having a Scale of 1 ''=100', prepared by Chris A. Hoover, Registered Professional Engineer No. 39129-E, of the Commonwealth of Pennsylvania, of Hoover Engineering Services, Inc., of Dillsburg, Pennsylvania, in conjunction with Stanley Jarmolenko, Registered Professional Surveyor No. 25739-E, of the Commonwealth of Pennsylvania and Recorded in the Recorder's Office of Cumberland County, Pennsylvania in Plan Book 75 at Page 27, as follows: BEGINNING at a point at lands now or late of David and Sheryl McClure, at the intersection of the Northern Right-of-Way Line of Water Street (a 50' unopened right-of-way) and the Western Right-of-Way Line of Eighth Street (a 50' right-of-way); thence from said point of beginning through Water Street along the Western Right-of-Way Line of Eighth Street South 62 degrees 04 minutes 53 seconds West, a distance of 50.00 feet to a point on the Southern Right-of-Way Line of Water Street (a 50.00' unopened right-of-way) at lands now or late of Ray E. and Donna L. Peck; thence along lands now or late of Ray E. and Donna L. Peck North 27 degrees 55 minutes 07 seconds West, a distance of 136.00 feet to a point at lands now or late of William L. and Katherine Horgan; thence through a portion of Water Street (a 50.00' unopened right-of-way) along a 10' unopened alley North 62 degrees 04 minutes 53 seconds East, a distance of 10.00 feet to a point at the Southern Right-of- Way Line of Water Street ( a 40.00' unopened right-of-way); thence along said unopened 10.00' alley North 27 degrees 55 minutes 07 seconds West, a distance of 748.61 feet to a point at lands of the Borough of New Cumberland; thence along said lands of the Borough of New Cumberland (crossing Water Street) North 62 degrees 04 minutes 53 seconds East, a distance of 40.00 feet to a point at Lot No. 1 (Lands of David and Sheryl McClure); thence along Lot. No. 1 and other lands now or late of David and Sheryl McClure South 27 degrees 55 minutes 07 seconds East, a distance of 884.61 feet to a point, the place of beginning. Said unopened right-of-way of Water Street contains 36,744.40 square feet or 0.8435 acres. BEING a part or portion of the same premises which Fairfax Leafy, as Trustee of the Property of the Northern Central Railway Company, Debtor, by Conveyance Document No. NC-CRC-RP-7, dated March 31, 1976 and recorded on August 16, 1978 in the Recorder's Office of Cumberland County, Pennsylvania, in Deed Book Z Volume 27 at Page 416 & c., granted and conveyed unto Consolidated Rail Corporation, and which Manor Real Estate Company, by Conveyance Document No. MRE-CRC-RPI-20, issued pursuant to the Regional Rail Reorganization Act of 1973, as amended (P.L. 93-236, H.R. 9142), the Final System Plan of the United States Railway Association and Special Court (Washington, D.C.) Misc. Order No. 75-3, dated March 25, 1976 and March 31, 1976, in the Matter of Regional Rail Reorganization Proceedings, granted and conveyed certain property, easements, interests and rights unto Consolidated Rail Corporation and which Conveyance Document was recorded on August 16, 1978 in the Reeorder's Office of Cumberland County, Pennsylvania, in Misc. Book 237 at Page 487 & c. 4. The Plaintiffs are the owners of a tract of land in the Borough of New Cumberland, Cumberland County, Pennsylvania, which was acquired through an Action to Quiet Title, which action is docketed in the Office of the Prothonotary of Cumberland County at docket number 97- 6748. Said Action to Quiet Title resulted in an Order of Court dated February 18, 1998, which decreed that, inter alia, "It is hereby ordered and decreed that Defendants are forever barred from asserting any claims, liens or interests which they may have in the real estate described herein and that title in fee simple is vested in Plaintiffs, David F. McClure and Sheryl L. McClure, husband and wife, as the tree and lawful owners of the following tract of land: BEGINNING at a point at the intersection of Lot No. 1 (Lands of David and Sheryl McClure) with a 10 foot unopened alley, said point being referenced and located 62 degrees 04 minutes 53 seconds West, a distance of 40.00 feet from a concrete monument set on the property line of said Lot No. 1 (Lands of David and Sheryl McClure); thence from said point of beginning South 62 degrees 04 minutes 53 seconds West, a distance of 10.00 feet to a point at lands now or late of William L. and Katherine Horgan; thence along said lands now or late of Horgan, Ninth Street- UnoPened (50.00 foot Right-of-Way), other lands now or late of William L. and Katherine H°rgan, Tenth Street-Unopened (50.00 foot Right-of-Way), lands now or late of Gilda DiTonno, Eleventh Street-Unopened (50.00 foot Right-of-Way), and lands now or late of Mildred M. Black North 27 degrees 55 minutes 07 seconds West, a distance of 748.61 feet to a point at lands of the Borough of New Cumberland; thence along said lands of the Borough of New Cumberland (crossing the 10.00 foot Unopened Alley) North 62 degrees 04 minutes 53 seconds East, a distance of I0.00 feet to a point at Lot No. 1 (Lands of David and Sheryl McClure); thence along said Lot No. 1 (Lands of David and Sheryl McClure) South 27 degrees 55 minutes 07 seconds East, a distance of 748.61 feet to a point, the place of beginning. SAID 10.00 foot unopened alley contains 7,486.10 squ_a_re feet." A copy of the Order of Court dated February 18, 1998 is attached hereto as Exhibit "A' and by reference incorporated herein and made a part hereoE 5. As a result of the Action to Quiet Title referenced in paragraph 4 above, the only land owners adjacent to the parcel of land which is the subject of this action are the Plaintiffs and the Defendant. 6. The Plaintiffs bring this action purs-ant to Pa. R. Civ. P. 1061 (b)(1) - (4) providing, inter alia, that any action to quiet title may be brought to determine "any right, lien, title or interest in the land or determine the validity or discharge of any document, obligation or deed affecting a right, lien, title or interest in land." 7. The Premises which is the subject of this quiet title action is located in the Borough of New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as the "Premises"). The Premises is comprised of one separate, individual parcel. 8. The legal description of the Premises is as follows: Beginning at a point at lands now or late of David and Sheryl McClure, at the intersection of the Northern Right-of-Way Line of Water Street (a 50' unopened right-of-way) and the Western Right-of-Way Line of Eighth Street (a 50' fight-of- way); thence from said point of beginning through Water Street along the Western Right-of-Way Line of Eighth Street South 62 degrees 04 minutes 53 seconds West, a distance of 25.00 feet to a point on the Center Line of Water Street (a 50.00' unopened right-of-way); thence along the Center Line of Water Street North 27 degrees 55 minutes 07 seconds West, a distance of 136.00 feet to a point; thence through a portion of Water Street (a 50.00' unopened right-of-way) along lands now or late of David and Sheryl McClure South 62 degrees 04 minutes 53 seconds West, a distance of 15.00 feet to a point at the Southern Right-of-Way Line of Water Street (a 40.00' unopened fight-of-way); thence along lands now or late of David and Sheryl McClure North 27 degrees 55 minutes 07 seconds West, a distance of 748.61 feet to a point at lands of the Borough of New Cumberland; thence along said lands of the Borough of New Cumberland (crossing Water Street) North 62 degrees 04 minutes 53 seconds East, a distance of 40.00' feet to a point at Lot No. 1 (Lands of David and Sheryl McClure); thence along Lot No. 1 and other lands now or late of David and Sheryl McClure South 27 degrees 55 minutes 07 seconds East, a distance of 884.61 feet to a point, the place of beginning. Said unopened right-of-way of Water Street contains 33,344.40 square feet or 0.7654 acres. 9. The Premises described in paragraph 8 is a fifty foot then forty foot unopened right- of-way running parallel with lands of Plaintiffs, such lot being owned by the Plaintiffs as part of the conveyance and purchase of the tract of land referred to and described in paragraph 3 above. 10. The Premises which is the subject of this quiet title action, and referred to and described in paragraph 8 above is fully included within the tracts of land referred to and described in paragraph 3 and 4 above. 11. Prior to the conveyance from Conrail, the title to the property devolved as follows: A. Jesse Oren, et ux. to The Northern Central Railway Company by deed dated December 29, 1885, and recorded December 31, 1885, in Deed Book 3, Volume Y at Page 616. A true and correct copy of this Deed is attached hereto as Exhibit "B" and by reference incorporated herein and made a part hereof.. B. Milton K. Brubaker, et. ux to The Northern Central Railway Company by deed dated December 29, 1885, and recorded December 31, 1885, in Deed Book 3, Volume Y at Page 618. A true and correct copy of this Deed is attached hereto as Exhibit "C" and by reference incorporated herein and made a part hereof. C. John J. Gusler to The Northern Central Railway Company by deed dated December 30, 1885, and recorded December 31, 1885, in Deed Book 3, Volume Y at Page 621. A true and correct copy of this Deed is attached hereto as Exhibit "D" and by reference incorporated herein and made a part hereof. D. Daniel Bentzel, et. ux to The Northern Central Railway Company by deed dated November 30, 1885, and recorded Jantl_a_ry 1, 1886, in Deed Book 3, Volume Z at Page 1. A true and correct copy of this Deed is attached hereto as Exhibit "E" and by reference incorporated herein and made a part hereof. E. Henry R. Messer, et. al to The Northern Central Railway Company by deed dated December 12, 1885, and recorded January 7, 1886, in Deed Book 3, Volume Z at Page 43. A true and correct copy of this Deed is attached hereto as Exhibit "F" and by reference incorporated herein and made a part hereof. F. Henry R. Messer, et. al to The Northern Central Railway Company by deed dated December 12, 1885, and recorded Jan~_ary 7, 1886, in Deed Book 3, Volume Z at Page 47. A true and correct copy of this Deed is attached hereto as Exhibit "G" and by reference incorporated herein and made a part hereof. G. Water Street was vacated and relocated on or about April 7, 1936 by virtue of Borough of New Cttrnberland Ordinance No. 34 and as such was an unopened public street abutting the lands now of Plaintiffs and Defendant. 12. The Plaintiffs bring this quiet tire action at this time to compel the Borough of New Cumberland, its successors and assigns and any person or persons having or claiming a right, title, estate, lien or interest in the Premises to set forth the nature of their claims, or be forever barred from making said claims. WHEREFORE, the Plaintiffs request the Court to decree the title to said property to be in the Plaintiffs and to enjoin the Defendant from setting up any title to said premises or from impeaching, denying or in any other way attacking the Plaintiffs' title to said property. Respectfully submitted, Attorney ID No. 57976 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorney for Plaintiffs I verify that th~ stat~m~ts mad~ in this Complaint 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 unswom falsification to authorities. Dav~d"~.McClure" i - ~ · FEB 1 8 lgg8 DAVID F. McCLURE and : SHERYL L. McCLURE, : : Plaintiffs : V. : WILLIAM L. HORGAN, : KATHERINE HORGAN, GILDA ' : DiTONNO, MILDRED M. BLACK,: their heirs, devisees, admini.'strators, : executors, successors and assigns, : and ANY OTHER PERSON : HAVING OR CLAIMING ANY : RIGHT, TITLE, ESTATE, OR : LIEN THROUGH OR UNDER : THE NAMED DEFENDANTS : OR IN THEIR OWN RIGHT, : Defena~ts : IN THE COURT O/; COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-6748 ACTION TO QUIET TITLE ORDER OF COURT AND NOW, this ~"~lay of ~ 1998, upon motion of Plaintiffs, David F. McClure and Sheryl L. McClure, and upon consideration of an affidavit filed on February 15, 1998, by Michael J. Hanfl, Esquire, attorney for Plaintiffs, indicating that Notice was published in accordance with the Order of Court dated December 1 I, 1997, and that Defendants have failed to file any respOnse to that Notice or the Complaint, Judgment is hereby entered in favor of Plaintiff and against Defendants. It is hereby ordered and decreed that Defendants are forever barred from asserting any claims, liens or interests which they may have in the real estat· described herein and that title in fee simple is vested in Plaintiffs, David F. McClure and Sheryl L. McClure, husband and wife, as the true and lawful owners of thc following Wact of land: BEGINNING at a point at the intersection of Lot No. 1 (Lands of David and Sheryl McClure) with a 10 foot unopened alley, said point being referenced and located 62 de~rees 04 minutes 53 seconds West, a distance of 40,00 feet from a concrete monument set on the property line of said Lot No. I (Lands of David and Sheryi McClure); thence f~om said point of beaming South 62 degrees 04 minutes 53 seconds West, a distance of 10.00 feet to a point at lands now or late of William L. and Katherine Horgan; thence along said lands now or late of Horgan, Ninth Street- Unopened ($0.00 foot Right-of-Way), other lands now or late of William L. and Katherine Horgan, Tenth Sireet-Unopened (50.00 foot Right-of-Way), lands now or late of Gilda DiTouno, Eleventh Street-Unopened (50.00 foot Right-of-Way), and lands now or late of Mildred M. Black North 27 degrees 55 minutes 07 seconds West, a distance of 748.61 feet to a point at lands of the Borough of New Cumberland; thence along said lands of the Borough of New Cumberland (crossing the 10.00 foot Unopened Alley) North 62 degrees 04 minutes 53 seconds East, a distance of 10.00 feet to a point at Lot No. 1 (Lands of David and Sheryl McClure); thence along said Lot No. 1 (Lands of David and Sheryl McClure) South 27 degrees 5:5 minutes 07 seconds East, a distance of 748.61 feet to a point, the place of ben, i= nning. SAm 10.00 foot unopened alley contains 7,486.10 square feet. BY THE COURT, K~vi~.~. Hess, Judge ' TRUE C.,OP¥ FROM RECORD DAVID F. McCLURE and SHERYL 1'.. McCLURE, Plaintiffs WILLIAM L. HORGAN, . KATHERINE HORGAN, GILDA DiTONNO, MILDRED M. BLACK, their heirs, devisees, administrators, executors, successors and and ANY OTHER PERSON HAVING OR CLAIMING ANY RIGHT, TITLE, ESTATE, OR LIEN THROUGH OR UNDER THE NAMED DEFENDANTS OR IN THEIR OWN RIGHT, Defendants IN THE COLrKT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION- LAW NO. 97-6748 ACTION TO QUIET TITLE MOTION FOR JUDGMF. NT AND NOW, this 13th day of Febwnry, 1998, an affidavit having been executed and filed by Michael J. HanR, Esquire, on behalf ofthe Plnintiffs that the Complaint, with notice to plead, has been served on the Defendants by the means and on the dates indicated in the copy of the affidavit of service attached hereto, and the Defend_n~ts have not answered; the Plaintiffs by their attorney, Michael J. Hanff, Esquire, move the Court to enter judg~nent in favor of the Plaintiffs and against the Defendnnts, and to grant the relief prayed for in accordance with the Penn.~ylvania Rules of Civil Respectfully submitted, Micl~ael J. Hnnff, F~lre Attorney ID No. 57976 Ten East High Street Carlisle, PA 17013 (717) 243-3341 & OTTO EXHIBIT "~" EXHIBIT "~" VERIFICATION Subject to the penalties of 18 Pa.C.S. Section 4904 (relating to unsworn falsification to authorities), I, David F. McClure, individually and as President of David F. McClure Company, hereby declare that, the facts set forth in the foregoing Answers to Interrogatories are true and correct to the best of my knowledge, information and belief. David F. McClure _CERTIFICATE OF SERVICF I, W. Scott Staruch, Esq., hereby certify that on the 16th day of September, 2002, I served a true and correct copy of the Answers to Interrogatories by United States First Class Mail, Postage Prepaid, upon the following: Richard C. Sneibaker, Esq. 44 West Main St. P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorney for Plaintiffs W Scott Staruch LAWS, STARUCH & PISARClK 20 Erford Road, Suite 305 Lemoyne, PA 17043 (717) 975-0600 LAW OFFICES SNELBAKER, BRENNEMAN & Spare RAY E. PECK and DONNA L. PECK, Plaintiffs VS. DAVID F. McCLURE and SHERYL L. McCLURE, and DAVID F. McCLUR~ COMPANY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: 02-2364 CIVIL CIVIL ACTION - LAW PRAECIPE TO DISCONTINUE ACTION TO: PROTHONOTARY OF CUMBERLAND COUNTY Please mark the record of the above-captioned action as settled and discontinued based upon the parties' agreement as contained in the copy of Compromise Settlement and Mutual Release attached hereto and incorporated herein by refbrence thereto. SNELBA~RENNEMAN & SPARE, P.C. R'Schard C. Snelbaker, Esquire Attorneys for Plaintiffs and LAWS, S~ Attorneys for Defendants Dated: January 8, 2003 COMPROMISE SETTLEMENT AND MUTUAL RELEASE This agreement made on January 8, 2003, by and between Ray E. Peck and Donna L. Peck of Marysville, Pennsylvania and David F. McClure, Sheryl L. McClure and David F. McClure Company is a compromise settlement and mutual release whereby the above-named parties hereby extinguish their mutual dghts and claims, arising from their disputes and differences as to the rights, duties, and obligations each has relating to that certain property located between and adjoining the parties' respective properties (the "Property") and as indicated in that certain action filed in the Cumberland County Court of Common Pleas at docket number 02-2364 (the "Action"). NOW, THEREFORE, in consideration of the mutual covenants contained herein and in consideration of a dismissal of the complaint and counterclaims in the Action, the parties agree as follows: 1. Each of the above-named parties on behalf of themselves, their heirs, executors, administrators, successors and assigns, hereby fully releases and discharges the other party and their heirs, executors, administrators, successors and assigns from all rights, claims, counterclaims, actions and causes of action which each party now has against any other party, stemming from their differences regarding the Property and the Action. 2. This settlement is the compromise of the above-described dispute and may never be treated as an admission of liability by either party fl3r any purpose. Signed with intent to be legally bound. David F. McClure Sher~l L./McClure David F. McClure Company By D~avi~F McClure, President