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Home My WebLink About94-02983 ,~~ . % . 7' 5\ f1 nl I J; '\ ~ <3 ~ 1 j 1ii:1i,c&<k~"$ 3. All other relief requested is denied. BY THE COURT, J td Craig I. Adler, Esq. ADLER & CLARAVAL 125 Locust Street P.O. Box 11933 Harrisburg, PA 17108 Attorney for Francis X. Doyle William P. Douglas, Esq. 27 West High Street P.O. Box 261 Carlisle, PA 17013 Attorney for Gary L. Quesenberry l~ /?v'(J"t/u'- 9/S/9'1. ..,a.fl :rc GARY QUESENBERRY, . IN THE COURT OF CO~~ON PLEAS OF . Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . . . v. CIVIL ACTION - LAW . . FRANCIS X. DOYLE, . . Defendant . NO. 94-2983 CIVIL TERM . FRANCIS X. DOYLE, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL N. QUESENBERRY, Defendants . . . . : NO. 96-4892 EQUITY TERM IN RE: ADJUDICATION BEFORE OLER. J. OPINION and DECREE NISI Oler, J., September 3, 1997. These consolidated' civil cases between the owners of two properties which share an easement for access in the form of a private alley present the question of liability for repair of a common easement. A nonjury trial was held on Monday, August 25, 1997. Based upon the evidence admitted at the trial, the court will determine a reasonable cost for the repair work, impose liability for such work equally upon the owners, and enjoin use of the alley inconsistent with the easement. , See Order of Court, June 27, 1997. NO. 94-2983 CIVIL TERM NO. 96-4892 EQUITY TERM FINDINGS OF FACT 1. Gary Quesenberry, Plaintiff at No. 94-2983 civil Term and Defendant at No. 96-4892 Equity Term, is an adult individual residing at 98 Peach Glen Road, Gardners, Pennsylvania. 2. Francis X. Doyle, Plaintiff at No. 96-4892 Equity Term and Defendant at No. 94-2983 Civil Term, is an adult individual residing at 4004 Ash Street, Harrisburg, Pennsylvania. 3. Mr. Quesenberry is the owner of a tract of land in the Borough of Mount Holly, Cumberland County, Pennsylvania, at the northeast corner of the intersection of North Baltimore Avenue (Pennsylvania State Route 34) and East Lauman Street. 4. The Quesenberry property is the site of various businesses, including a doughnut shop, a beer distributorship, a hardware store, an optometrist's office, a cafe and a video shop. 5. Mr. Doyle is the owner of a smaller tract of land which abuts part of the Quesenberry tract on the south; the Doyle property is bounded on its south by Mill Street. 6. The Doyle property is the site of eight mobile homes. 7. A private alley runs along the western border of the Doyle tract. 8. The alley is 16 feet wide and 150 feet long, and runs north from Mill Street to the southern boundary of ~he Quesenberry tract. 2 NO. 94-2983 CIVIL TERM NO. 96-4892 EQUITY TERM 9. This alley, to which neither Mr.. Quesenberry nor Mr. Doyle claims ownership, is the location of a common easement for ingress and egress for the two tracts. 10. The alley is used for travel by vehicles, including some large trucks, associated with businesses on the Quesenberry tract, although other means of access to the tract are also utilized. 11. The alley is also used for travel, and sometimes for parking (inconsistent with truck travel), by automobiles associated with the mobile homes on the Doyle tract. 12. At one point in the past, Mr. Doyle blocked the alley at its point of connection with the Quesenberry property. 13. The traffic into and out of the Quesenberry property causes more damage to the alley than does the traffic associated with the Doyle property; on the other hand, the alley is more useful to the Doyle property than to the Quesenberry property. 14. Apparently, the alley is not of use to any other properties. 15. The alley has fallen into serious disrepair. 16. An expenditure of $3,800.00 will be necessary to restore the alley to serviceable condition, although Mr. Doyle would prefer a more substantial (and more costly) form of repair. 17. Given the use of, and benefits from, the common easement for ingress and egress, it is equitable that each property owner at 3 NO. 94-2983 CIVIL TERM NO. 96-4892 EQUITY TERM this time be compelled to pay one-half the cost of repairs, up to $1,900.00. DISCUSSION In the present case, counsel are not in disagreement as to the general rule of joint liability for repair of a shared easement. As Mr. Quesenberry's counsel notes, "[w]here there are multiple owners of an easement, the duty of repair should fall where reason, convenience, and equity require it to fall." Quesenberry Trial Brief, at 2. Mr. Doyle'S counsel indicates, "the owners of [an] easement have a joint duty to repair it." Plaintiff, at 3. Pre-trial Brief of In some cases, the most reasonable approach is to impose upon an abutting landowner responsibility for maintenance of the portion of the easement which runs along his or her property. See, e.g., Oswald v. Hausman, 378 Pa, Super. 245, 548 A.2d 594 (1988); Borgel v. Hoffman, 219 Pa, Super. 260, 280 A.2d 608 (1971). In other cases, it is appropriate to consider the relative use of the easement, both in terms of the benefits received from and the burdens imposed upon the physical easement. See generally Drolsum v. Luzuriaga, 93 Md. App. 1, 611 A.2d 116, appeal denied, 328 Md. 237, 614 A.2d 83 (1992). Under either rule, an equal share of the expenses of repair for each owner would seem to be appropriate in this case. In terms of abutment, both properties may be considered to abut the entire 4 NO. 94-2983 CIVIL TERM NO. 96-4892 EQUITY TERM alley - the Quesenberry property lying along its entire width, and the Doyle property lying along its entire length; both properties utilize the entire length and breadth of the alley. In terms of burden and benefit, the alley is more damaged by its service of the Quesenberry property, but is more necessary to the use of the Doyle property. The foregoing analysis presupposes, of course, that the alley will not be blocked off or used for purposes inconsistent with vehicular ingress and egress. CONCLUSIONS OF LAW 1. The Court has jurisdiction of the subject matter of this litigation and of the aforesaid parties. 2. The properties owned by the parties share a common easement in the form of an abutting alley, and each owner is liable for an equal share of the reasonable cost of maintaining it. 3. The decree issued hereafter properly adjudicates the dispute between the parties in terms of their responsibilities at this time in connection with use and maintenance of the easement. DECREE NISI AND NOW, this 3rd day of September, 1997, upon consideration of the complaint of Gary Quesenberry and counterclaim of Francis X. Doyle at No. 94-2983 Civil Term, and of the complaint of Francis X. Doyle at No. 96-4892 Equity Term, and following a non-jury trial, it is ORDERED, ADJUDGED and DECREED as follows: 5 NO. 94-2983 CIVIL TERM NO. 96-4892 EQUITY TERM 1. Within sixty days of the date of this decree each property owner shall match the financial contribution of the other property owner to a project to repair the alley servicing their properties, up to the sum of $1,900.00; nothing herein is intended to preclude either party from unilaterally contributing more than $1,900.00 to the project. 2. Neither owner shall block off the alley or use, or permit to be used, the alley for parking. 3. All other relief requested is denied. BY THE COURT, sf J. Wes1ev Oler. Jr. J. \lesley Oler, Jr., J. Craig I. Adler, Esq. ADLER & CLARAVAL 125 Locust Street P.O. Box 11933 Harrisburg, FA 17108 Attorney for Francis X. Doyle William P. Douglas, Esq. 27 West High Street P.O. Box 261 Carlisle, PA 17013 Attorney for Gary L. Quesenberry :rc 6 ,--- v. IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA . . CIVIL ACTION - LAW . . . ,/ . . . NO. 94-2983 CIVIL TERM . * * * * GARY QUESENBERRY, Plaintiff FRANCIS X. DOYLE, Defendant FRANCIS X. DOYLE, Plaintiff . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY . . v. . . . . GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL H. QUESENBERRY, nefendants . . . . . . . . NO. 96-4892 CIVIL TE~ ORDER OF COURT AND NOW, ~his l~~lday of September, 1997, upon connideratidn of the motion for post-trial relief filed on behalf of Francis X. Doyle, oral argument is scheduled for Tuesday, December 2, 1997, at 3:30 p.m., in Courtroom No.5, Cumberland County Courthouse, Carliole, Pennsylvania. MR. DOYLE'S brief shall be filed with the Court Administrator at least twelve days prior to the argument, and M~. Quesenberry's brief shall be filed at least five days prior to the argumenL C.C.R.P. 210-6 (except that only one copy of the briefs need to be filed), 210-6-1(a), 210-7, 210-8 and 210-9 shall apply. BY THE COURT, J , '" , ..- . GARY QUESENBERRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA / v. CIVIL ACTION - LAW FRANCIS X. DOYLE, Defendant NO. 94-2983 CIVIL TERM * * * * FRANCIS X. DOYLE, . . Plaintiff . . . . v. I . . GARY L. QUESENBERRY, : I. WILLIAM QUESENBERRY, . . and THE ESTATE OF MICHAEL . . H. QUESENBERRY, . . Defendants . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 96-4892 CIVIL TERM AND NOW, this ORDER OF COURT ,"1 tl. day of March, 1998, upon consideration of the attached letter from William P. Douglas, Esq., argument on the motion for post-trial relief filed on behalf of Francis X. Doyle, is scheduled for Thursday, May 7, 1998, at 3:30 p.m., in Courtroom No.5, Cumberland County Courthouse, Carlisle, Pennsylvania. MR. DOYLE'S brief shall be filed with the Court Administrator at least twelve days prior to the argument, and Mr. Quesenberry's brief shall be filed at least five days prior to the argument. C.C.R.P. 210-6 (except that only one copy of the briefs need to be filed), 210-6-1(a), 210-7, 210-8 and 210-9 shall apply. BY THE COURT, . . 40.., william P. Douglas, Esq. 27 West High street Carlisle, PA 17013 Attorney for Gary Quesenberry Francis X. Doyl.e 3514 Union Deposit Road Harrisburg, PA 17109 Pro Se Craig I. Adler, Esq. 125 Locust Street Harrisburg, PA 17101 (Courtesy Copy) :rc f' .J,. . _,,;.w..3 /1 t / fj 8. ~u~ r"~ ..J-f', . "-.-" ~ , DOUGLAS, DOUGLAS & DOUGLAS ATTORNEYS AT LAW ~7 w. HIQH STReE:T p, O. BO)( Z81 WILLIAM A DOUGLAS-' aEORGE ~ DOUGLAS, m CARLISLE, PENNSYLVANIA 17013"0281 GEORGE ,. DOUGLAS. JR. 18111.1881 -"'L.O ADMITTED TO P,,"'CTICI. IN '1.0"104 t CElnlP'IED .... A CIVIL ''''AL ADYOCATE .,. THE NATIONAl. .OA"D 0' ""AI. ADVOCACY (717) 143.1780 'AX (717) ."~..8111 March 13, 1998 The Honorable J. Wesley Oler Fourth Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: No, 94-2983 Civil Term Gary Quesenberry v. Francis X. Doyle No. 96-4892 Civil Term Francis X. Doyle v. Gary L. Quesenberry, et aJ. Dear Judge Oler: At this time, we respectfully request that you reschedule the argument on the Post-trial Motion of Francis X. Doyle for Clarification and Modification of Adjudication and Decree Nisi, which was originally scheduled for December 2,1997. Sincerely, b'.\\ WPD:jml CC: Francis X. Doyle 3514 Union Deposit Road Harrisburg, Pa. 17109 MAR t b t9~1l -- .,~ 1~:' . SEP 2 8 1998 ,. ..... , 4"'L-o -- GARY QUESENBERRY, Plainti.ff.-. . ,... .- IN THE COURT OF COMMON PLEAS OF . CUMBERLAND comf:rx.,..p~~,N..SYLVANIA. CIVIL ACTION - LAW v. F; .L.: FRANCIS X. DOYLE, Defendant NO. 94-2983 CIVIL TERM * * * * FRANCIS X. DOYLE, Plaintiff , . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . v. CIVIL ACTION - EQUITY GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL H. QUESENBERRY, Defendants : NO, 96-4892 EQUITY TERM AND NOW, this RULE TO SHOW CAUSE L~day of September, 1998, on consideration of the within petition, A Rule is issued on Francis X. Doyle to show cause why the relief requested in the within petition should not be granted, Rule returnable ~ days after service. BY THE COURT, J. () rI t. " J. TRUE COpy FROM RECORD In ~ _ ,: -,:_":\ ,,; ': ~;, I '1:" l!~I:- set my hand . . -" , ('" p an~ me S:'di 5u:.: :; ...:'..!:. i!i aroos.", 3. ihl$ ....!??~....... day OLjt. 0 ,....., 19..~i. ~ - ..,......... .....a..,... ...,ym I :.D . Prothonotary . ~ , ~ '1, Do '~ 0: J 3 .... ~ GARY QUESENBERRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . v. FRANCIS X. DOYLE, Defendant NO. 94-2983 CIVIL TERM/ * * * * FRANCIS X. DOYLE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY v. GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL H. QUESENBERRY, Defendants NO. 96-4892 EQUITY TERM AND NOW, this ORDER OF COURT ~o ~ay of October, 1998, upon consideration of Gary L, Quesenberry's Petition for Finding of Contempt and for Enforcement of No Parking Ban in Alleyway, and of Francis X. Doyle's response to the petition, a hearing is SCHEDULED for Tuesday, December 1, 1998, at 1:30 p.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, ~ William P. Douglas, Esq. 27 West High Street Carlisle, PA 17013 Attorney for Gary Quesenberry / . / ~iL'.':.\~_ijt:~1~:: (:: __, ,-,'''- ,:t;~?\i t;"() for.\" 2 \ ;:\:1 \..1: \ 1 C,U" - -' , ,," ". .~., .' ,~ '" J 1..) '.' 1)('., I Ft).!>;~.;l ,_\Ji\'<'/" , - . Craig I. Adler, Esq. 125 Locust Street P.O. Box 11933 Harrisburg, PA 17108 (Courtesy Copy) Francis X. Doyle 4004 Ash Street Harrisburg, PA 17109 Plaintiff/Defendant, Pro Se :rc 11 ~ ""....:1.J.... Io/~' I q 8 ~ ""'on- ...s. '-, . .... " GARY QUESENBERRY V. FRANCIS X, DOYLE : IN THE COURT OF COMMON PLEAS :v1 CUMBERLAND COUNTY, PA. : IVIL ACTION - LAW : \ NO. 94 - 2983 CIVIL TERM : \ JURY TRIAL DEMANDED FRANCIS X, DOYLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION - EQUITY NO. 96 .4892 EQUITY TERM V. GARY L, QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL: H, QUESENBERRY _iWIO'O SIjg,W CAU~L day of September, 1998, on laeration of yle to show cause why the relief uld not be granted, Rule returnable ,.. .~.._.,..# .. October l:l IYY~ Judge J Wesley Oler Jr Ninth Judicial District Cumberland, County. RULE TO SHOW CAUSE PETITION FOR FINDING OF CONTEMPT AND FOR ENFORCEMENT OF NO PARKING BAN My response to these charges are as follows: On october 15 1997, I visited complaintant Gary Quespnberry and asked him to go over the pending Paving work so that we would be in agreement to avoid future conflict. He. refused. I contracted with T~sh Paving Co. of Carlise for $3320,00. Less than the $3800,00 estimate of Quesenberrys brother. for professional paving work, On October 10 1997, Thrush Paving started the work as scheduled, and within the time limit as per your Decree.On this same day I received a call from Thush Paving Co, Office Manager. stating that their work had been stopped by Quesenberry.They were orderpd off the job and threatened with non payment and a lawsuit if the continued their work. Thrush Paving asked for $150,00 compensation tor their initial expenses.I paid this amount, I have complied as best os I can with the Court Order.I had been prevented from doing so by the very Individual ~'ho has filed this complaint. Un October 11 1997, I received 0 call from a Tenant stating that the alley was being paved by Quesenberrys brother, " The base coat was applied and thefinish coat would probably be done tomorrow. Tomorrow never came. This was supposed to be a finished job. Several days later I inspected the I. Paving was done I! feet inside ot the required 16 feet, :l, Workmanship was poor with a seam runnung down the center and an attempt to patch it. Something you dont see in new paving. 3. Virtually every roadway is paved with a slight crown on the surface to shed water. This is actually inverted with a V shape channel to collect water. This cha~~el runs to Quesenberrys property where the Inversion turns YO degrees right onto my rear driveway,It is impossible to do this accidently, It has to be Engineered. The surface drainage from the Highway ( ~Iill Street), and the Unimart parking lot now drain on my property, ~everal problem floodings hove occured and an Ice Pond will result when freezing temperatures arrive. olley and found the my property leaving following conditions: width 14! feet instead " - - Judge J Wesley Oler Jr. RESPONSE TO CONTEMPT COMPLAINT. 4. A 5 inch wide, white stripe has been painted the lenght of my property approximately l~ feet inside the alley. I asked that this be removed. 5. I complained to Attorney Douglas about these conditions and never received a response, 6. After several months with no action taken, I received a bill from Attorney Douglas with an added $400.00 charge for" Repairs to adjoining propert,-". All paving meets adjoining property and is included in every estimate. I can only conclude that this was an attempt to stick me with Douglas legal fee. 7. The work performed does not look like it is worth $ 1900.00. If I pay.thts amount, I will be paying for everything and will cost Quesenberry nothing. This would explain the panic in preventing a legitimate eontrdctor f~om"doiug the work. There is something very wrong with this. 8. Thrush Paving Co will still do the work under the following conditions: n a. A corrected price of $3965.00, since additional work will be required to level the existing base. b. Detailed specifications in writing. c. Payment in advance if Quesenberry is associated with the project, On the matter of parking in the alley~ I have complied in the following manner: 1. All Tenants have been notified of th parking ban, Tenants also received a letter from Attorney Douglas with the same directive. 2. I have provided offstreet parking for all Tenants, by moving Shrubs, one 275 gallon fuel tank, removing and rebuilding one 10 foot deck to the other side of one Unit. 3. On subsequent visits I have seen no Tenant parking in the alley. I have seen occasional vehicles parked there over which I have no control. This has not been a problem since truck traffic moves through freely. There is no attempt by me to defy the Courts Decree. I have done everything I reasonably know how to comply, ~ectfull:;~~ /~OYle 4004 Ash St. Harrisburg, Pa. 17109 ,,- - .- Paao No. 0' PI.I. 'rupuBul THRUSH EXCAVATING & PAVING 11 ..- 8 Mooredale Road lie/v rt(/~cR I CARLISLE, PA 17013 (717) 243.7102 FAX (717) 243-2515 HlOPOlAC. IU,"'IO[D TO ...// f){') 'IS 5~ 0... /o.q. ....., DAlt 0' !"LANS AItCHlTlCr JOI PHOf4l W. hereby lubm,t lpaciflc.lliOnl and .,IUNlll. lubiKI to .11 'trma .nd tondlhonl at Nt lor1h on both '~". .1 follows: ~,"W C. //7 /)PpP. ())f ;J..'Y&Jt)jo.i-, OJG OoJI C,q.~/)c.- /J~p f4u~ " 3 3 If)- I'" .c -t/ c- f) .LA/' .0 /f}'f If 3.J ~ 0." 0 , (Read R...... Side) 11, Jl'lIpoar herobr t. lum'''' malOtIal end Iebor - _pltlO In _ wilh _ _I_Ion., for thllum of: doll.rs ($ ) P A V IIf & IJ -; Ov c- /J.q 'Y (),- Co 1<1 Pi/; 1.20"" o;:..fc B (JtIlMt:7> hllE. c,,<; 10MI:.-,Il' RcSPop!Zeu.:Z7Y ~I' proposal mil bl wllllclt..n by us II not accepted -'thin Authollud dip. Slln.t"A1 Att,pt,ll: 11M above prien. lpeclflc.tlonl .nd condition. .r. ull,t.dofY .nd.re hlr.by ICcepted. You Slln.ture .t. I"thomed to do the WOf" II .peclfled. Payment wtlllM' mIdi II outlined .beNt. Oat. Slln.tur. .' f;; 0 ~ If: ~ ~. :-'< UJQ , ),., ~~(, (1.: ':_)~: lo.._ t l~ f' ~'!i~7 IT', M .~ :[1 C1t lot.. . ;; E:' t- ".:r.~ ;.. ,-, -4...L. C I.. r.r: , u 0' U r , , GARY QUESENBERRY, . IN THE COURT OF COMMON PLEAS OF . Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . . . v. . CIVIL ACTION - LAW . . ~ . FRANCIS X. DOYLE, . . Defendant . NO. 94-2983 CIVIL TERM . * * * * FRANCIS X, DOYLE, Plaintiff . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY v. : . . GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL H. QUESENBERRY, Defendants . . . . : NO. 96-4892 EQUITY TERM : AND NOW, this ORDER OF COURT 2,2. ., J day of October, 1998, upon relation of William P. Douglas, Esq., attorney for Gary Quesenberry, that he has a scheduling conflict with the hearing previously scheduled in this matter for December 1, 1998, the hearing is RESCHEDULED to Tuesday, December 15, 1998, at 3:00 p.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, 1/(' / 01./ <-.--t fr t Wesley Oler," r., William P. Douglas, Esq. 27 West High Street Carlisle, PA 17013 Attorney for Gary Quesenberry FliJ, I"C';=;:;C~ O~ :- ' .- ~ ~ ~:;~,'-J;Y O~ r"T ,,' 1..10 I 1 J.J ,,"" I (.) Lil II' U. CL};,":.~~,-,,_ ,,;"_ ~"-',.;;\":Y Fc:,;~ L,\'i ~~'.,,,: .;:,\ i I i Craig I. Adler, Esq. f 125 Locust Street P.O. Box 11933 Harrisburg, PA 17108 (Courtesy Copy) Francis X. Doyle 4004 Ash Street Harrisburg, PA 17109 Plaintiff/Defendant, Pro Se :rc . ~ o?>.e.oQ..(. 10/:).31'18 ' ....J ,l'! !'1, ~, ]:~~~~i;;*,:;;!'i,:i,:~-"iF,f';- ~? . "J-ADLUIiCLARA VAL. ';.,_~.A.1'!;':;;:~i",..;tj,t.*')""_" .,-.:":,, "-"i" -,_-___.', " . .., . . . :$"-~-"'!;)AT'fCl!l!IEV$-"r lAW_',-: , ~. ' "': ;/,\~~; ,,,. . ,,_ .~, ", > .i!~4~;!2Sp~;{~:933;.a:~ _ ;:\:~, ~ ~ .'~- ,:'._ ;' . .",".r..,.,...._~"-'v 1'1'~' "'....,. >l~wJ ....""';.~,'$l"'~. ~ "1 po.; - . '.."';}~t.'1:'~ )'1' _~~~~;.........v,~~..... .......' ~.".t.' ':-::';,;:;;;;'I,,~:,:-,;tx.,., ~,-;:::-'.;11~_PENNM.VNM-171oe;'933 ,'o-,:~ .--.:;. _ "":l~;A, ;"--~':~~~~'~/lt~y;t~i~l?~:;;;::;-L:";;: ., :~.: __:::::. e_ . 'i: ,--- ;', --~ ~.~'--\ GARY QUESENBERRY, Plaintiff v. FRANCXS X. DOYLE, Defendant FRANCXS X. DOYLE, Plaintiff v. GARY L. QUESENBERRY, X. lULLXAM QUESENBERRY and THE ESTATE OF MXCHAEL H. QUESENBERRY, Defendants. 001 . 0 199stP _.~ , 'J CEATIFII!D COPY ) I ) I ) I ) I ) I ) I ) I ) I IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PEHNSYLVANXA CXVIL ACTION - LAW / NO. 94-2983 CXVXL TERM CXVIL ACTION - EQUITY NO. 96-4892 EQUITY TERM ORDER OF COURT AND NOW, this 2'lc! day of Iu", v,. --ILu ,1998, upon consideration of-the Motion of Craig I. Adler, Esquire of Adler & Claraval to withdraw as counsel to Francis X. Doyle in the above- captioned matter it is hereby ORDERED that the Motion of Craig I. Adler, Esquire of Adler & C1araval to withdraw as counsel to Francis X. Doyle in the above-captioned matter . / ,I/. {/// l.-::7 - ~,~ Wesley 0 I J. . . '" FILED-0fFICE O~ .,., '" ,0".....-.lr."rlTI M'Y i'" \r-,: ...,i...:. ,;..,';'JI, \r\ ~a HG') -2 PH::!: 02 C' 1" -', ',' n --. ." ,~rrv WI"I~t..:l1..J..,r..; \Jt~Ul ~i I P=""""'" '" '.1" :,..1'\f'hJll..',(t,...:t\ , '. - . : . "( :, 00iIj; , attached hereto. DATED: October 25, 1998 r-1/--- Craig I. Adler, Esquire Attorney for Plaintiff Attorney's I.D. No.: 52970 ADLER' CLARAVAL 125 Locust street P.O. Box 11933 Harrisburg, PA 17108 (717) 234-3289 - 2 - ~RAHCIS X. DOYLE, Plaintiff ) IN THE COURT O~ COMMON PLBASE I CUMBERLAND COUNTY, PENNSYLVANIA ) I ) CIVIL ACTION - EQUITY I ) I No. 915 - 4892 Equity TerJII ) I ) v. GARY L. QUBSENBERRY, I. WILLIAM QUESBNBBRRY, and THE ESTATE O~ MICHAEL H. QUESENBERRY, Defendants CBRTIFICATB OP SERVICE I hereby certify that I am this day serving a true and correct copy of the foregoing Motion of Craig I. Adler to withdraw Appearance upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of civil procedure, by hand delivery, as follows: William P. Douglas, Esquire Douglas, Douglas & Douglas 27 W. High street P.O. Box 261 Carlisle, pa 17013 Cumberland county Court Administrator's Office Cumberland county Court House 1 Courthouse square Carlisle, PA 17013 Francis X. Doyle 4004 Ash street Harrisburg, PA 17109 ,/ / ._ 1998 By:' -/,_ CRAIG 1; ADLER, ESQUIRE October 25, ADLER , CLARAVAL 125 Locust Street P. O. Box 11933 HarriSburg, PA 17108-1933 (717) 234-3289 Attorney 1.0. No. 52970 Attorney for Francis X. Doyle ~ c:tl ~ ..:I .. '""- ~..,: "= .. uJp co 'l ~_.# (.)t-~ - :J;!. ftr. ~ .:-:'t;:J ~?,~ c:> ~.~ f'i; C"l j ;,(!: WL\.- ;:.~ ""7 -h1~ ...... iDrCl u:. .., W alo.. F 0 ~- ~~ Ll. m ::J 0 v"" U . . . GARY QUESENBERRY, Plaintiff . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. . . FRANCIS X. DOYLE, Defendant NO. 94-2983 CIVIL TERM x./ * * . * FRANCIS X. DOYLE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - EQUITY GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL H. QUESENBERRY, Defendants NO. 96-4892 EQUITY TERM " ORDER OF COURT AND NOW, this ILr'~ay of December, 1998, upon consideration of the Petition for Finding of Contempt and for Enforcement of No Parking Ban in Alleyway filed on behalf of Gary L. Quesenberry, and following a hearing held on December 15, 1998, it is ordered and directed as follows: 1. Francis X. Doyle shall, within 20 days of the date of this order, reimburse Gary L. Quesenberry in the amount of $1510.00 for repair of the alley sub judice, which represents the expenditure Mr. Doyle would have been responsible for had his contractor performed the work ($1660.00), less the sum which he paid the said contractor ($150.00); and 2. Francis X. Doyle shall, within 20 days of the date of this order, again notify his tenants in writing that , neither they nor their guests may use the alley for parking. BY THE COURT, J.t William P. Douglas, Esq. 27 West High Street Carlisle, PA 17013 Attorney for Gary Quesenberry Francis X. Doyle 4004 Ash Street Harrisburg, PA 17109 Pro Se -?lL.uA4 &..fU'~ /,) .J/. 'Ii' :rc ~ "" '- ... ~? j~ ~" . -{ <:i: '" :' ~ , GARY QUESENBERRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW ~ FRANCIS X. DOYLE, Defendant NO. 94-2983 CIVIL TERM * * * * v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY FRANCIS X. DOYLE, Plaintiff GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL H. QUESENBERRY, Defendants NO. 96-4892 EQUITY TERM AND NOW, this RULE TO SHOW CAUSE z. ",tLday of September, 1998, on consideration of the within petition, A Rule is issued on Francis X. Doyle to show cause why the relief requested in the within petition should not be granted. Rule returnable 2-.0 days after service. BY THE COURT, J. ) oft. ., J. William P. Douglas, Esq. 27 West High Street Carlisle, PA 17013 Attorney for Gary Quesenberry Craig I. Adler, Esq. 125 Locust Street P.O. Box 11933 Harrisburg, PA 17108 Attorney for Francis X. Doyle :rc YOU AIIl HUUl RtOUI.ID TO PILl A w"lnn IUOONS[ 10 1Hr. ueLaUD ."H'" rwINn 1101 OAn nON IUVler HueD" Q,1t .. ,JUDGM[NT MAT If INUfl[O '0"'11III1 YOU. .DOUGLAS. DOUGLAS & DOUGLAS ATTORN[YS AT LAW .I?'" HIO" ''''ll' . .. u .J. ,e. WI DO HUnY cUTIn THAT THI WITHIN II A TIIJUJ: AHD COIJIICT CO', ., IHI ..''''HAL moot-I" OtIS ACTION.. Ot:. To-.- IV .nO'HI' CARLISLE:. PE:NNSYLVANIA IJ'OIJ.Olel ATTOIIJNn 1~0 .\,) \ or t.O~ -- C"') f; ~~ h; ('. I" -, r( ,<-: -- ,-, U,' (-1 - t ; ~. -, :: ....... .1 (T'1 ~ t,'"1 r \ to " 11 '-' I v. .. t . J Q c.. ~ () F @ ,J.' ;"0 1;1 ~ ~t1 * , . " YOU Alii: NflU' 1I0UIRrD TO "L[ A ..,nrN UI,ONIl TO 'HE IHCLOIlD WITHunwl.." ClOI DAY' nON SIIlVICI NUCO'" QW A JUDGJlltNT MAY I[ I..TUrD AlAINn fOU. I' __ .___. A"OINn .DOUGLAS. DOU:;LAS &. DOUG LA!; .1 ~ ... 0,.",.. .. H' r t , . III 0 eot. IfI' WI DO HUI'P'f r.c If 11' , THAT tH. WIlHIH " A "RU~' .....0 C~..lcrco'" or THE O'lIl'lflll 'IL~.p' ptt.V AellCN.' l7r::. .J ., 1998. .: \ "1'10"'-C'O'"" A~ 4-"'''' UTOlllo(r GARY QUESENBERRY V. FRANCIS X. DOYLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION - LAW NO. 94 - 2983 CIVIL TERM JURY TRIAL DEMANDED FRANCIS X. DOYLE V. GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL: H. QUESENBERRY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION - EQUITY NO. 96 - 4892 EQUITY TERM RULE TO SHOW CAUSE AND NOW, this the within petition, day of September, 1998, on consideration of A Rule is issued on Francis X. Doyle to show cause why the relief requested in the within petition should not be granted. Rule returnable days after service. By the Court, The Honorable J. Wesley Oler, Jr., J. , . . " GARY QUESENBERRY V. FRANCIS X. DOYLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION - LAW NO. 94 - 2983 CML TERM JURY TRIAL DEMANDED FRANCIS X. DOYLE V. GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL: H. QUESENBERRY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CML ACTION - EQUITY NO. 96 - 4892 EQUITY TERM ORDER OF COURT AND NOW, this ~ day of September, 1998, on consideration of the within petition, It is ordered and directed that a hearing thereon is set for .1998, at . _.M., in Courtroom No. _ . Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, The Honorable J. Wesley Oler, Jr., J. GARY QUESENBERRY V. FRANCIS X. DOYLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION - LAW NO. 94 - 2983 CIVIL TERM JURY TRIAL DEMANDED FRANCIS X. DOYLE V. GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL: H. QUESENBERRY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION - EQUITY NO. 96 - 4892 EQUITY TERM PETITION FOR FINDING OF CONTEMPT AND FOR ENFORCEMENT OF NO PARKING BAN IN ALLEYWAY To The Honorable J. Wesley Oler, Jr., Judge: Your petitioner, Gary L. Quesenberry, by and through his attorneys, Douglas, Douglas & Douglas, respectfully represents that: 1. On September 3, 1997, Your Honorable Court entered an Adjudication and Decree Nisi, a copy of which is attached hereto, marked Exhibit "A". 2. Following consideration of the post-trial motion of Francis X. Doyle for clarification and modification of Adjudication and Decree Nisi, Your Honorable Court entered an Order of Court dated May 8, 1998, a copy of which is attached hereto, marked Exhibit "B". 3. Pursuant to the May 8, 1998, Order of Court, the petitioner, through his attorneys, has attempted on numerous occasions, through his counsel, Craig I. Adler, Esquire, to have Francis X. Doyle pay the $1,900.00 financial contribution to repair the alley directed in the Court Order, and he has failed to pay said sum. 4. In addition, despite the direction in the Decree Nisi of September 3, 1997, entered as a Final Decree on May 8, 1998, Francis X. Doyle's tenants are continuing to park in the alleyway. SEP, 0 8 1997 GARY QUESENBERRY, . IN THE COURT OF COMMON PLEAS OF . Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . . . v. . CIVIL ACTION - LAW . . . FRANCIS X. DOYLE, : Defendant . NO. 94-2983 CIVIL TERM . FRANCIS X. DOYLE, Plaintiff . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY . . v. . . . . GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL N. QUESENBERRY, Defendants . . . . . . . . NO. 96-4892 EQUITY TERM IN RE: ADJUDICATION BEFORE OLER. J. DECREE NISI AND NOW, this "!' J day of September, 1997, upon consideration of the complaint of Gary Quesenberry and counterclaim of Francis X. Doyle at No. 94-2983 Civil Term, and of the complaint of Francis X. Doyle at No. 96-4892 Equity Term, and following a non-jury trial, it is ORDERED, ADJUDGED and DECREED as follows: 1. Within sixty days of the date of this decree each property owner shall match the financial contribution of the other property owner to a project to repair the alley servicing their properties, up to the sum of $1,900.00; nothing herein is intended to preclude either party from unilaterally contributing more than $l,900.00 to the project. 2. Neither owner shall block off the alley or use, or permit to be used, the alley for parking. . rf 11 I, ~dl' brr IT GARY QUESENBERRY, . IN THE COURT OF COMMON PLEAS OF . Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA . . v. CIVIL ACTION - LAW . . FRANCIS X. DOYLE, : Defendant . NO. 94-2983 CIVIL TERM . FRANCIS X. DOYLE, Plaintiff . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY . . v. . . . . GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MIClmEL N. QUESENBERRY, Defendants . . . . . . : NO. 96-4892 EQUITY TERM IN RE: ADJUDICATION BEFORE OLER, J. OPINION and DECREE NISI Oler, J., September 3, 1997. These consolidated1 civil cases between the owners of two properties which share an easement for access in the form of a private alley present the question of liability for repair of a common easement. A nonjury trial was held on Monday, August 25, 1997. Based upon the evidence admitted at the trial, the court will determine a reasonable cost for the repair work, impose liability for such work equally upon the owners, and enjoin use of the alley inconsistent with the easement. 1 See Order of Court, June 27, 1997. NO. 94-2983 CIVIL TERM NO. 96-4892 EQUITY TERM FINDINGS OF FACT 1. Gary Quesenberry, Plaintiff at No. 94-2983 Civil Term and Defendant at No. 96-4892 Equity Term, is an adult individual residing at 98 Peach Glen Road, Gardners, Pennsylvania. 2. Francis X. Doyle, Plaintiff at No. 96-4892 Equity Term and Defendant at No. 94-2983 Civil Term, is An adult individual residing at 4004 Ash Street, Harrisburg, Pennsylvania. 3. Mr. Quesenberry is the owner of a tract of land in the Borough of Mount Holly, Cumberland County, Pennsylvania, at the northeast corner of the intersection of North Baltimore Avenue (Pennsylvania State Route 34) and East Lauman Street. 4. The Quesenberry property is the site of various busines~es, including a doughnut shop, a beer distributorship, a hardware store, an optometrist's office, a care and a video shop. 5. Mr. Doyle is the owner of a smaller tract of land which abuts part of the Quesenberry tract on the south; the Doyle property is bounded on its south by Mill Street. 6. The Doyle property is the site of eight mobile homes. 7. A private alley runs along the western border of the Doyle tract. 8. The alley is 16 feet wide and 150 feet long, and runs north from Mill Street to the southern boundary of ~he Quesenberry tract. 2 NO. 94-2983 CIVIL TERM NO. 96-4892 EQUITY TERM 9. This alley, to which neither Mr. Quesenberry nor Mr. Doyle claims ownership, is the location of a common easement for ingress and egress for the two tracts. lO. The alley is used for travel by vehicles, including some large trucks, associated with businesses on the Quesenberry tract, although other means of access to the tract are also utilized. 11. The alley is also used for trave~, and sometimes for parking (inconsistent with truck travel), by automobiles associated with the mobile homes on the Doyle tract. 12. At one point in the past, Mr. Doyle blocked the alley at its point of connection with the Quesenberry property. 13. The traffic into and out of the Quesenberry property causes more damage to the alley than does the traffic associated with the Doyle property; on the other hand, the alley is more useful to the Doyle property than to the Quesenberry property. 14. Apparently, the alley is not of use to any other properties. 15. The alley has fallen into serious disrepair. 16. An expenditure of $3,800.00 will be necessary to restore the alley to serviceable condition, although Mr. Doyle would prefer a more substantial (and more costly) form of repair. 17. Given the use of, and benefits from, the common easement for ingress and egress, it is equitable that each property owner at 3 NO. 94-2983 CIVIL TERM NO. 96-4892 EQUITY TERM this time be compelled to pay one-half the cost of repairs, up to $1,900.00. DISCUSSION In the present case, counsel are not in disagreement as to the general rule of joint liability for repair of a shared easement. As Mr. Quesenberry's counsel notes, "[w]here there are multiple owners of an easement, the duty of repair should fall where reason, convenience, and equity require it to fall." Quesenberry Trial Brief, at 2. Mr. Doyle'S counsel indicates, "the owners of [an] easement have a joint duty to repair it." Pre-trial Brief of Plaintiff, at 3. In some cases, the most reasonable approach is to impose upon an abutting landowner responsibility for maintenance of the portion of the easement which runs along his or her property. See, e.g., Oswald v. Hausman, 378 Pa. Super. 245, 548 A.2d 594 (1988); Borgel v. Hoffman, 219 Pa. Super. 260, 280 A.2d 608 (1971). In other cases, it is appropriate to consider the relative use of the easement, both in terms of the benefits received from and the burdens imposed upon the physical easement. See generally Drolsum v. Luzuriaga, 93 Md. App. 1, 611 A.2d 116, appeal denied, 328 Md. 237, 614 A.2d 83 (1992). Under either rule, an equal share of the expenses of repair for each owner would seem to be appropriate in this case. In terms of abutment, both properties may be considered to abut the entire 4 NO. 94-2983 CIVIL TERM NO. 96-4892 EQUITY TERM alley - the Quesenberry property lying along its entire width, and the Doyle property lying along its entire length; both properties utilize the entire length and breadth of the alley. In terms of burden and benefit, the alley is more damaged by its service of the Quesenberry property, but is more necessary to the use of the Doyle property. The foregoing analysis presupposes, of course, that the alley will not be blocked off or used for purposes inconsistent with vehicular ingress and egress. CONCLUSIONS OF LAW l. The Court has jurisdiction of the subject matter of this litigation and of the aforesaid parties. 2. The properties owned by the parties share a common easement in the form of an abutting alley, and each owner is liable for an equal share of the reasonable cost of maintaining it. 3. The decree issued hereafter properly adjudicates the dispute between the parties in terms of their responsibilities at this time in connection with use and maintenance of the easement. DECREE NISI AND NOW, this 3rd day of September, 1997, upon consideration of the complaint of Gary Quesenberry and counterclaim of Francis X. Doyle at No. 94-2983 Civil Term, and of the complaint of Francis X. Doyle at No. 96-4892 Equity Term, and following a non-jury trial, it is ORDERED, ADJUDGED and DECREED as follows: 5 NO. 94-2983 CIVIL TERM NO. 96-4892 EQUITY TERM 1. Within sixty days of the date of this decree each property owner shall match the financial contribution of the other property owner to a project to repair the alley servicing their properties, up to the sum of $1,900.00; nothing herein is intended to preclude either party from unilaterally contributing more than $1,900.00 to the project. 2. Neither owner shall block off the alley or use, or permit to be used, the alley for parking. 3. All other relief requested is denied. BY THE COURT, sl J. Weslev 01er. Jr. J. Wesley Oler, Jr., J. Craig I. Adler, Esq. ADLER & CLARAVAL 125 Locust Street P.O. Box 11933 Harrisburg, PA 17108 Attorney for Francis X. Doyle William P. Douglas, Esq. 27 West High Street P.O. Box 261 Carlisle, PA 17013 Attorney for Gary L. Quesenberry :rc 6 MAY 1'1 1998 GARY QUESENBERRY, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. FRANCIS X. DOYLE, Defendant : NO. 94-2983 CIVIL TERM * * * * FRANCIS X. DOYLE, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - EQUITY GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL H. QUESENBERRY, Defendants NO. 96-4892 EQUITY TERM IN RE: MOTIONS FOR POST-TRIAL RELIEF BEFORE OLER. J. ORDER OF COURT AND NOW, this Zl tl, day of May, 1998, after careful consideration of the post-trial Motion of Francis X. Doyle for Clarification and Modification of Adjudication and Decree Nisi, and of the briefs submitted and oral arguments presented on behalf of the parties, the motion is DENIED and the Decree Nisi entered on September 3, 1997, is entered as a Final Decree. BY THE COURT, J' Wesley , Evilblt "i?:, II IN RE: MOTIONS FOR POST-TRIAL RELIEF AND NOW, this BEFORE OLER. J. ORDER OF COURT ~. ~ day of May, 1998, after careful consideratio'n of the Post-trial Motion of Francis X. Doyle for Clarification and Modification of Adjudication and Decree Nisi, and of the briefs submitted and oral arguments presented on behalf of the parties, the motion is DENIED and the Decree Nisi entered on September 3, 1997, is entered as a Final Decree. BY THE COURT, J .r ,/ . William P. Douglas, Esq. 27 West High street Carlisle, PA 17013 Attorney for Gary Quesenberry Craig I. Adler, Esq. 125 Locust street P.O. Box 11933 Harrisburg, PA 17108 Attorney for Francis X. Doyle :rc . . . to ~ 0- ., . ~ .... f"" (, i..": u: >'" ~ ,-- (":;, , , c. , ~ '. lI' u. .'" ( )r. '1 .. ~ ( -... ~.' , \l__v' I.... " l'__" , 0' " , " "I ',",i c:.' . , '", , J_: -, ~ \ ' (:. ~ l : J lL. I.' .-.'. J U-i .,' " 1'- ::-; u (.-. tJ ~ &! ~ ~ ~;;;..... 0 ~~m~~~~~ O<!9.>~'?~ ~I~~~~~~ l:l:~lG~~ t:.~ ~.- I . . . (jSEP 1 6 1997 GARY QUESENBERRY, Plaintiff ) . . ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. . . ) 9"IL ACTION - LAW ) V NO. 94-2983 CIVIL TERM FRANCIS X. DOYLE, DEFENDANT FRANCIS X. DOYLE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. GARY L. QUESENBERRY, CIVIL ACTION - EQUITY NO. 96-4892 EQUITY TERM PROPOSED IN RE: ADJUDICATION BEFORE OLER. J. DECREE NISI AND NOW, this day of September, 1997, upon consideration of the complaint of Gary Quesenberry and counterclaim of Francis X. Doyle at No. 94-2983 Civil Term. and of the complaint of Francis X. Doyle, at No. 96-4892 Equity Term, and following a non-jury trial, it is ORDERED. ADJUDGED and DECREED as follows: 1. Within sixty days of the date of this decree each property owner shall match the financial contribution of the other property owner to a project to repair the alley servicing their properties, up to the sum of $1,900.00; nothing herein is intended to preclude either party from unilaterally contributing more than $1.900.00 to the project. GARY QUESBHBBRRY, Plaintiff v. ntAHCIS X. DOYLE, Defendant ntAHCIS X. DOYLB, plaintiff v. GARY L. QUESBHBBRRY, I. WILLIAM QUBSBHBBRRY and THB BSTATE OF MICHAEL H. QUESBHBBRRY, Defendants. ) IN THE COURT OF COMMON PLBIB I CUMBBRLAND COUNTY, PBHHSYLVANIA ) I CIVIL ACTION - LAW ) I NO. 94-2983 CIVIL TERM ) I CIVIL ACTION - EQUITY ) I NO. 96-4892 EQUITY TERM ) I ) I ) I POST-TRIAL MOTION OP PRANCIS X. DOYLE FOR CLARIPICATION AND MODIPICATION OF ADJUDICATION AND DBCRBE NISI AND NOW, this 12th day of September, 1997, comes Francis X. Doyle, by his attorneys, ADLER & CLARAVAL and files this Motion for Clarification and Modification of Adjudication and Decree Nisi as follows: 1. In Francis X. Doyle's ("Doyle") Complaint in Equity under Cumberland County Case No. 96 - 4892 ("Equity Complaint"), he requested that the Court, among other things, compel the parties to enter into a written agreement, to be recorded with the Cumberland County Recorder of Deeds, to apportion the respective costs of maintenance of the alley ("Alley") which is the subject of the Equity Complaint. 2. The Court I s order appears to determine that responsibility for the maintenance of the Alley is to be divided equally between the parties with each party contributing $1,900.00 to the construction. 3. The Court's order does not appear to create an ongoing maintenance obligation or apportion responsibility for such maintenance beyond the initial repairs specifically described in the order. 4. The Alley will require ongoing maintenance by Doyle and Quesenberry and their respective successor owners of the properties adjoining the Alley. 5. Doyle, in the Equity Complaint requested that such a determination be made and such a determination is necessary in order to avoid future litigation over the ongoing maintenance obligations of the parties. 6. The Court has the power in Equity to grant the relief requested. 7. The Court in paragraph 2 of his order has indicated that neither owner shall block off the Alley or use, or permit to be used, the Alley for parking. 8. This portion of the order can be interpreted as prohibiting any parking in the Alley, whether such parking blocks access or not. 9. Doyle, his tenants and his predecessors in title to Doyle's property have parked upon a portion of the Alley adjacent to Doyle's property continuously for a period in excess of 25 years. 10. A prohibition against any parking within the Alley - 2 - nu.HCIS X. DOYLE, Plaintiff ) I ) . . ) I ) . . ) I ) IN THE COURT OP COMMON PLBASE CUMBERLAND COUKTY, PBHHSYLVANIA v. CIVIL ACTION - EQUITY GARY L. QUESBHBBRRY, I. WILLIAM QUESBHBBRRY, and TBB ESTATE OP MICHAEL H. QUESBHBBRRY, Defendants No.9' - 4892 Equity Term CBRTIPICATB OF SERVICE I hereby certify that I am this day serving a true and correct copy of the foregoing Pretrial Conference Memorandum upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of civil Procedure, by hand delivery, as follows: William P. Douglas, Esquire Douglas, Douglas & Douglas 27 W. High street P.O. Box 261 Carlisle, pa 17013 Cumberland County Court Administrator's Office Cumberland county Court House 1 Courthouse Square Carlisle, PA 17013 By' vi/. 'CRAIG I. AD!l:a, ESQUIRE ADLER' CLARAVAL 125 Locust street P. O. Box 11933 Harrisburg, PA 17108-1933 (717) 234-3289 Attorney 1.0. No. 52970 Attorney for Plaintiff Date: September 12, 1997 , ..-' . GARY QUESENBERRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 94-2983 CIVIL TERM ~ v. FRANCIS X. DOYLE, Defendant * * * * FRANCIS X. DOYLE, . . Plaintiff . . . . v. . . . . GARY L. QUESENBERRY, . . I. WILLIAM QUESENBERRY, . . and THE ESTATE OF MICHAEL . . H. QUESENBERRY, . . Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 96-4892 CIVIL TERM AND NOW, ORDER OF COURT this ^ I] tt'day of June, 1997, upon consideration of the Motion for Consolidation filed on behalf of Plaintiff Gary Quesenberry at No. 94-2983 Civil Term and on behalf of Defendants Gary L. Quesenberry, I. William Quesenberry and the Estate of Michael H. Quesenberry at No. 96-4892 Equity Term, and upon relation of counsel for all parties that a jury trial is waived at No. 94-2983 Civil Term, the Motion for Consolidation is GRANTED. THE NONJURY trial in both caseB will be held before the under"igl1ed jUdge on Monday, August 25,1997, at 9:00 a.m., in Courtroom .lo. 5, Cumberland County Courthouse, Carlisle, Penns}'l vanilt . BY THE COURT, -eo, / ' , l.. ~7 97 O~'9/''''~ L I L-eel f. 9 (. - -<fIX( J. Sf.. t( ; { '/ GARY QUESENBERRY V. FRANCIS X. DOYLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION - LAW NO. 94 - 2983 CIVIL TERM JURY TRIAL DEMANDED FRANCIS X. DOYLE V. GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL: H. QUESENBERRY GARY QUESENBERRY V. FRANCIS X. DOYLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CML ACTION - EQUITY NO. 96 - 4892 EQUITY TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION - LAW NO. 94 - 2983 CML TERM JURY TRIAL DEMANDED RE: MOTION FOR CONSOLIDATION AND NOW, comes William P. Douglas, Esquire, of Douglas, Douglas & Douglas, attorney for Plaintiff Gary Quesenberry to No 94 - 2983 Civil Term, and Defendants Quesenberry to No. 96 - 4982 Equity Term, and respectfully represents: (1) This is a dispute concerning an entranceway off Mill Street to the property owned by the Quesenberrys. (2) Suit was filed to No. 94 - 2983 Civil Term on June 3, 1994, and that action is still pending. A Pre-trial Conference was held before The Honorable George E. Hoffer in August of 1994. (3) Suit was filed to No. 96 - 4982 Equity Term on September 4, 1996, and that action is still pending. A Pre-trial Conference was held before The Honorable J. Wesley Oler on June 12, 1997. (4) Craig I. Adler, Esquire, counsel for Francis X. Doyle, has indicated he has no objection to this consolidation and concurs with the Motion. . . , . Cllllllllllnwrlll~:;LUIDln\.1 l ... IIlIunly IIf r OraIM"IAr Ift.(.,/ tlagtJllIn,..,t./"tl._' .d. lJ.1086,be/ure lilt .y """ _. IAr 'fnd9',iunrd OlliU~' Irrronally. a/'Ileortd t7l ~ .,u.. /J..rJ.., '/Ik.....tIL. &v bJ.t......;t;r:; .... jh.:.Y 6. ~ knoUlra 10 rlie oP ali'/actorilll ,.",j,.traf 'fu bt Il,t prrlon UlAole IUImr is ,ub,cribrd to tAt v:ilMra in"rumrnt, and IIrl'nOtCle,lurd IAal Ar e:rrcul"II",' 'ame lor l1.t purJlou, Ilurnra contained. ~~ C tU4t.~7J I r . -L., v:z- ." ,.\"Ui.::" ~.. . ,....... .. . .. ~ ,"t~\ "0 .......~. ". .. 'r'.':!.:"~ ~'.i~"" ~, '0 ....-~.. ",fl.. . ~'." ,OJ ~ :"l\t!. 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Z 0: ... l ,. o \j ... a 0: .. .. C u 5 - N - I '" l>o E .. o I'< , ; . PASCO USA INC. 4913 GETI"tliBURG ROAD MECHANlCSBURG, PA 17055-4816 PHONE 717.691.7625 110I)..445.4789 FAX 717-691-8211 February 18. 1997 Mr. Craig I. Adler Adler & Claraval Attorneys at Law 125 Locust Street P.O. Box 11933 Harrisburg. PA 17108-1933 Re: Engineering Report on Shared Driveway/Alley in Mount Holly Springs Dear Craig: A requested in your letter of January 29. 1997. I visited the above referenced project site and prepared this report. This leport is based upon my observations on the day of the field visit and the traffic data which you provided with your letter. Project Location This project is located in Mount Holly Springs, PA. It is a shared alley/driveway which runs between Mill Street and the Quisenberry Shopping Center. The alley/driveway passes bctween a group of eight mobile homes and a combination Uni-MartlSubway Shop. Figure 1 shows the location of the shared alley/driveway in relation to the surrounding streets and establishments. Photograph # I shows the alley/driveway as seen from Mill Street. Observations On February 6,1997, a field view of the shared alley/driveway was conducted. At this time it was observed that the alley/driveway is one of only two means of access to the Quisenberry Shopping Center. It was also observed that extensive damage had been done to the alley/driveway. This damage consisted primarily of severe fatigue cracking and potholes of varying sizes and depths. Many of the potholes were filled with water. This damage was present throughout the length of the alley/driveway. However, the damage was more concentrated in the portion of the driveway between the Uni-MartlSubway building and the Quisenberry Shopping Center parking lot. P. A'NTlFF'S EXHIBIT' CONSUU'lNG ENGINEERS . PAVEMENT CONDmON SURVEYS . PAVEMENT CONSUl:J'ANTS . TRAINING SOnwARE . INTERNET CONSUI:I'ANTS n 11 n J J J I ~ .' PASCO USA INC. Baltimore Street (PA Route 34) Mill Unl-Mart & Subway Dunkin' Donuts Vacant Optometrist Mt. Holly Beer & Soda J J ] J J l .... Ailey/Driveway Quisenberry Shopping Center Mobile Street Mt. Holly Video Alvey's Paint and Hardware Homes Figure 1. Project Location Photographs 2 through 8 show the alley/driveway as it was observed during the field view. 'l .... The alley/driveway was observed to have been constructed with a light pavement structure consisting of between 2 and 3 inches of bituminous concrete surface course on either a crushed stone base or the existing soils. When the alley/driveway was last paved is unknown. There was also evidence that the alley/driveway had been patched at some time in the past. -., I -.J \. ~ 2 ....J PASCO USA INC. P~vcment Stmcture I have reviewed the p~vement structure proposed by Sebastian Brothers and find it adequate for cars and light trucks. However. it is structurally inadequate for the projected truck traffic. One of the following pavement structures would be more appropriate to carry the anticipated truck traffic: Desiqn # I Desilln # 2 Bituminous Surface Course (1D-2) Bituminous Concrete Base Course (BCBC) Subbase (2A Aggregate) I-lh" 4" 6" 1- Y," 6" None Pavement base drains should be used to remove water from the pavement structure, if2A aggregate is, used in the pavement structure. Subbase material such as 2A aggregate provides a solid stable paving platform. but requires a positive drainage system. If the soils in the area have a history of draining well then Design # 2 would be advantageous. Cause of Damalle The damage to the alley/driveway was probably primarily caused by the heavy trucks using it. The original pavement structure was not adequate to carry truck traffic of the type using the pavement. Assillnment of Responsibilitv 1'01' Dam:l\!e The alley/driveway needs to be repaired to provide car access to some of the mobile homes and the Quisenberry Shopping Center. In addition. it may be of interest to permit commercial vehicle access over this alley/driveway. There are a number of ways to approach an agreeable solution. One way to equitably assign the responsibility for repairing the damage would be as follows: I) Determine the cost for a minimum pavement structure to carry car traffic and 8 n ~ , J a c c :J o J J J J J '1.'.: d ~'.' PASCO USA INC. split this cost bctween the Quisenberry Shopping Center and Mr. Doyle. Based on the traffic count data provided by Mr. Doyle. this might be a 90/10 split. 2) Determine the pavement structure necessary to carry the anticipated heavy truck tmffic. Compare this to the minimum structure required and assign the cost of the additional structure to the party, or parties, responsible lor genemting the heavy truck traffic. An alternative solution would be to regrade and repave the alley/driveway sufficiently to provide access to the mobile homes and close the alley/driveway to through traffic. If you have any questions, or require additional information, please let me know. It has been a pleasure working with you. I look forward to working with you in the future. s~c~ A. HOmt. P.E. Chief, Engineering Services Division PA License No. PE.037364-E Seal 9 . GARY QUESENBERRY. Plaintiff 5S ~ Hoffer IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2983 CIVIL TERM IN TRESPASS VS FRANCIS X. DOYLE, Defendant IN RE: PRETRIAL CONFERENCE A pretrial conference was held before the Honorable George E. Hoffer, Judge, on Wednesday, August 17, 1994. In this case, William p, Douglas, Esquire, represents the plaintiff; and David H. Stone, Esquire, represents the defendant. The parties ore adjoining property owners in Mount Holly Springs, Plaintiff has 0 series of businesses located on his property. These businesses ore for retail walk-in and drive-in traffic. There is 0 main entrance to plaintiff's property from the main street. Plaintiff claims use of on alley entrance off of another public street, Defendant has erected two heavy posts with 0 chain between which blocks the use of this olley by plaintiff. It is apparent that title and/or use of the olley is in question. Defendant has not yet completed his title search and plans to get 0 survey of the property, Both parties are waiving any demand for a Jury 94-2983 Civil Term Pretrial Conference Page 2 trial. Plaintiff's attorney indicates that they may be interested in sharing some expense in the obtaining of a survey since they would like a survey also. We direct the attorneys to report bock to the court for special pretrial conference after the title search is complete and after the survey is received. Some details may hove to be mopped UP for a trial os for os witnesses ore concerned, and this con be done at 0 continued pretrial conference. By the Court, .~~ . J. William P. Douglas. Esquire For the Plaintiff David H. Stone, Esquire For the Defendont Court Administrotor Prothonotary :mtf I ~.;,:l:"J - '''"'- ,/..~; J,til ,iii ~ , . " . No. Tenn, 19 _ vs. PRAECIPE Filed 19_ . Atty. o ,I {t~ , ~ ~.:l9"10 Po (1.,"'V, 1/ 9 31 I J t-y. f?. 17/IJK. /9.33 :2 J-t- 3 ~S'<; . '. ..._...._-,._~.-.,"~__~':J_"_,.--',~.,.,,..,...-.,,^""'- .....,- - ." , , 1 ~ Ii , , .) \ . " / ,. . II . .. .- . . . .. .. - .- ~ c:tl E c-. ~ UJQ b~ s.2c :c: J;;; ~~ ...:c ::''' :::1-" )1- i,..~ c: tL en ~~,.I~ L1.j"'- N x.;1....._ EtLu c::: cHiD -. r:.. ~4 u.. I:: 00;( ....:: u_ co ::l 0 en (J .... ..0 ~ Ct:: .' (~ t-::: .. ~ U I(":~ - .,)",# t.);- ~~.; :~ 0- u.: . ' - 1I. ~. - ," ~ :-: y' ...~, :t- o '- ~ r1i. . : ,.~ w..' (-.J .. - ., - U: !(W .... . ,~~- '.!t.l.. :i: , r- ::::. '1 ..:) cr U ...: . , ( ~ J ~ ...I ~ ~ ~ ,.. ;:!;:... ~ 0 <~~~t~~~ ...J<~""> '?~ u~Hx~ ~N ~B"~~~~~ ~~\Sn:I~ t::.~ o u. < - 0......, . NOV 2 1 199'/ ;~y ". GARY QUESINBERRY, plaintiff v. ~RAHCIS x. DOYLE, Defendant ~RAHCIS X. DOYLE, plaintiff v. GARY L. QUISBHBERRY, I. WILLIAM QUESBHBERRY and THE ESTATE OF MICHABL H. QUBSBHBBRRY, Defendants. ) I ) I ) I ) : ) . . ) I ) I ) IN THE COURT OP COMMON PLBIB CUMBBRLAHD COUNTY, PBHHSYLVANIA CIVIL ACTION - LAW NO. 94-2983 CIVIL TERM CIVIL ACTION - EQUITY NO. 96-4892 BQUITY TERM . . MOTION OP CRAIG I. ADLBR TO WITHDRAW APPEARANCE AND NOW, this 20th day of November, 1997, comes Craig I. Adler, Esquire of Adler & Claraval and files this Motion to withdraw appearance as follows: 1. On September 15, 1997 the Court ordered that an oral argument be held December 2, 1997 to consider Mr. Doyle's motion for post-trial relief. 2. Craig 1. Adler, Esquire desires to withdraw his appearance as counsel to Mr. Doyle as it relates to the above- captioned matter, including without limitation the oral argument which is currently pending. 3. Mr. Doyle has been notified by Mr. Adler of Mr. Adler's desire to withdraw his appearance and Mr.. Doyle has consented to Mr. Adler's withdrawal. 4. Craig Adler, Esquire hereby requests that the Court grant his motion in the manner set forth in the proposed order ~CIS X. DOYLB, plaintiff ) IN THE COURT O~ COMMON PLEASE I C~BRLAIlD COUNTY, PBHHSYLVAHIA ) I ) CIVIL ACTION - EQUITY I ) I No. 96 - 4892 Equity Term ) I ) v. GARY L. QUESBHBBRRY, I. WILLIAM QUESBHBBRRY, and THE ESTATE 01' MICHAEL H. QUESBHBBRRY, Defendants CERTIPICATE OP SERVICE I hereby certify that I am this day serving a true and correct copy of the foregoing Motion of Craig I. Adler to withdraw Appearance upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of civil Procedure, by hand delivery, as follows: William P. Douglas, Esquire Douglas, Douglas & Douglas 27 w. High street P.O. Box 261 Carlisle, pa 17013 Cumberland County Court Administrator's Office Cumberland County Court House 1 Courthouse Square carlisle, PA 17013 Francis x. Doyle 4004 Ash street 20, H1a::7isburg, PA 1:::09 A _' CRAIG ~DLER' ESQUIRE November ADLER' CLARAVAL 125 Locust Street P. O. Box 11933 Harrisburg, PA 17108-1933 (717) 234-3289 Attorney 1.0. No. 52970 Attorney for Francis X. Doyle ~ . t ~ ). ~~ g10 ~ *i\: ~~ ~o ~ ~ j- "- r\ I.:r- ...0 - - - - ~- .,.~ G).~ ""' ~-' ;.- ~ c; :j- 'l:lt "" -=5 ,I.., YOU AU HUnl II[OUlltlO TO m,t Ai WltlyrrH "[SPONS[ iO IHf. ueLano WHHIH TwtH'YUOt Dn~ nOM InVleE Uf ICO" OR Ai JUDG"'tN' MAY It [HHAlD AGAUdT YOU. ., DOUGLAS, DOUGLAS & DOUGLAS .&nORNt1'S AT lAW WE DO Hnn'~.cnTln IHAT THt WlTllIN IS A nUl AND COR"ler co'", 0' THt O'UGIJiU riLED IN THIS ACflON. " ... I'H)" ~''''f' .. 0 lie... r~.' CA,"'U$L.t. prNtl$YLVA.t4IA. .y AnOltHrY "!fOlllH' Complaint 1. The plaintiff Gary Quesenberry is an adult individual owning property in the Borough of Mount Holly Springs, Cumberland County, Pennsylvania, which is more fully described in attached exhibit A. 2. The defendant Francis X. Doyle, is an adult individual residing at 4004 Ash Street, Harrisburg, Dauphin County, Pennsylvania. Said defendant owns property which is more fully described in attached exhibit B. 3. The deed of the defendant clearly states that his property line is located along the Eastern side of a 16 foot wide alley. 4. The land of the plaintiff abuts said alley, and the plaintiff, and his predecessors in interest, have used said alley way for access to the plaintiff's property as said alley leads directly to the property of the plaintiff. 5. The defendant has erected. metal posts and a wire across said alley way and is denying the plaintiff quiet enjoyment of said alley way. 6. One of the posts erected by the defendant is actually located on the lands of the plaintiff. 7. The defendant does not own said alley way. 8. The obstruction of said alley way by the plaintiff is unlawful and vexatious. 9. The obstruction of said alley way diminishes the value of the lands of the plaintiff and may have diminished profits from the businesses located on the property of the plaintiff. 10. The obstruction of said alley way by the plaintiff was done with wanton, reckless, and willful disregard of the rights of the plaintiff and his customers to use said alley way. 11. The plaintiff has had to incur legal as well as other expenses in the preparation of this action. Wherefore, it is prayed that judgment be entered in favor of the plaintiff and against the defendant in an amount in excess of $10,000.00., plus punitive damages, attorneys fees, and costs of suit. Respectfully submitted, June 3, 1994 i , \.v.:> William P. Doug) , Esq. Attorney for the p intiff Affidavit This verification is made pursuant to Pa.R.C.P 1024(c) by counsel for the plaintiff. To the best of the signer's knowledge, information and belief, the foregoing is true and correct. Q William P. Douglas Attorney for plaintif June 3, 1994 II " II 't d , i Ii , .... ~"~ ... . .."." " ,'.'.';-.... '-;'..~ ..,...~,..,.;.., -:""-'" ~bi!i Jnbenturt, MADE'I'HE t:nr dov./ S'-""/;!'N;fd'"<'2-. In IAtV.., ./.., Lold ... I"-'!'i .IM A.ndrld.nd olshty-throo (19B3) BE'I'WEEN CLARENCE W. ALBRIOHT E.,,,,,or ./IA. ""'IVIII.nd '1''''.....,./ Borbara C. Bobb /al. ./the Boroush of Moult Holly Spr1ne;o, CIrnborlanl COlllty, PeMaylvanla, heNlnat'ter ~!}~ed of'^' /Cr" part. aM OARY L. ~y. I. WILLL\"I ~lR~ llnl MICHAEL H. cm:sil~~, of R.D. 2, eo. 46B-Al, Oardnor"./IA. ",.nd ".,11: P.nnsylvanla 1732', portl.. WlIEREAS, 'A. ,aid Barbara C. Bobb bv her ltul IVaI arid T"eamml, dill, prwe4 Oftd r,cortl,d i" 'h, ReD""'" olft. 01 Cumberland COImtr, P'n"'1l1VCInia, 1n Will Dook Page . provided intor al1a, as tallows I , , ,/ 2. I authorize and emrower my executor to eell any realty owned by me at my death, at either pUblic or private sale. Clarence WI Albright was appointed as executor and he has duly qualified and 1. .tl11 aetlng a. o.acutor. .tfU.i,~_..._.._ Sc.hr.ul {Jr:,.1 ('1111111 c.., Jt:l. ~ HeMl hlltu '(4".;!tO, f;:1 ~~:Q. AIn'~ t./J.IJL ~... II. I/~,,~,,-" mb, Co. lJl1t toL "it. B....ct>,JIr/. J/.-/pJ~ Cumbo Co. "" 1 " R.M c.ltat, rr.nstet T~ ,&j},;~,:PJl"it;~>tJ /:~:~ J. UJ. ';I~t. CoL Acto .,' I . I '-' ..., COMMONWCAlTII or PENNS'/LVI""i/, =: ~ !~~;~::::.~: il;-:-~.~~J I '",. ,.... ..";;~ ~ NOW 'I'HIS INDENZ'URB WI'I'NESSE'l'H, l.\ol a. toi4J'drl y ., a. ~", pori, 611 WIv. 01 tAl potD" end cudAoritv a/ortldid, in ,old lVal ocmf4(n.ed. ond ('II ClOftIldrratlDn 0/ eM nnn 01 Soventy-'II<o 'lllouollnl llnl no/100 ($72,000.0))- Dol14rl to h1-n peed br the ,atd part les 01 1114 "coM perl, at and be/or. Ua, tlnIeallnq and ddll1'F'V 0/ tAu. pr,,,ntl, tA. rttnpt wh,rlo/" AI"'hy cdmowltdl1ed, has Dranted, ba'l14lncd, 1014 and co,."'Vtd, and dOOD Ia,r.b, Drant, barge'n, "U and Com"" to tAl .aid parties of the :lecord part, the1r lId" an4 d.lnom forner, aU tha t t'n un ,me. or pered o/land "t1l4t. in tho Borough of !4ount Holly Sprlnss . COIUllv'/ cumberland and SIGle ./ P....vl....... booMed GIld clcecNod ../.u..... _: TRACT NO.1, ALL that certaln tract of land sltuate 1n the Borough ot. .Ht, ,.' f' Holly Spr1nas, Cumberland County, Pennsylvanla, bounded and doscr1b~d, as follows: . DEOIWIIUa at an lron p1n on the east s1de at a proposed alloy 16 ,. toet w1de, said iron pin being the northwest corner hereofi thenco by 1 .., . land formerly of J. C. Bucher, now or tho grantees, North 03 degree5 I : 2 m1nutes East 138 teet, more or less, to a stone heap near the tall, ,~ race 1n 11no of land formerly ot the Mt. Holly Light nnd Pewer Company, d r :__.. now of Theodore A. T1chy and wife; thence by sa1d land, South 12 degree5_ ":1 . -.. . 35 mlnut.. West 50 f.ot to n pOlnt I thenco by land conv.yed to Paul R. ' Teltrlck, South 83 degreos 2 minutes Wast 124 foet, mora or'losD, to an t.. .~~I 1ron pin en the oaat Dido of tho o.toresa1d alley; thence along the ,':, '.;, eastern aide at said alloy, North 1 dogree West 55 toet to the Place ~ ; or BEOINIIINO. , BEIIIO the .ame tract of land whlch Paul K. ;mllton and Vlo1et O. '.,' .:l t::X ~O rm 044 ,,\ ..-....... ... ...~.........._._-..;....;." ~';" . .'.. . , ,.... ~ .,...- ,~:. :~~: ,:'.~~. "'0.'. ' . '.1:':. '., ,'~" . E.1\ \-\ \ ~ \ ,'(\ { ,: \...-,; ( '---' ( '--./ ..........,;,'1...'......:........'.. to Frank R. Bobb and Barbara C. 1955 and r.cord.d ln the Orrlc. 1n Doad Book '''ru, Vol. 16., Page BObb, his wife. or tho Recorder 1~7. Hamilton. eranted and conve~ed by thelr dead dated October 3. or Doada tor Cumborland County. TR^CT 110. 2: ALL that certain tract of land altuato 1n the Borough or Mount Ho1:Y Springe, County oC Cumberland and State or Pennsylvania. boundod and described II tolloWSI ON the West by North Baltlmore Avenue, on the North by other landa or Frank R. Dobb and Mrs. J.e. Bucher on the East by a 16 toot alloy on~ on tho South by lands or Freeman W. Harry and Mattie C. Harry. containlng 10 Ceet front on North Baltimoro Avenue and oxtonding back an even width f~om Baltimore Avenue to said alley a depth of 180 teet, more o~ loss. BEII~O tho DBme tract of land which Prf:eman W. Harry and Mattie C. Harry, his wifo, cranted and conveyed to Prank R. Bobb and Barbara DObb, hiD wife, by thelr dcod dat.d Juno 19, 1931 and r.cord.d ln tho Orr1co aror..ald ln Oo.d Book 11011, Vol. 11, Poce 3~2. TRACT 110. 3: ALL that certain tract of land a1tuate 1n the Borough of l10unt 1Iol1y Springo. County of Cumberland and Stato of Pennsylvania. bounded as follows: DEOINllINO at 11 stake on tho Eaat aide of Baltimore Avenue: thencb' along the said Avenue. North 8 degrees 35 minutes West 100 feet to a stake; thonco 75 door... 25 mlnut.. Ea.t 150 r.ot to a .tak. on a 16 root all.YI th.nc. South 100 foet parallel to Baltimore Avenue to a stake on the West a1de uf the herein mcntlonod 16 root all.YI' th.ne. 150 r..t w..t to the Plac. or BEOllmIIIO. BEIUO tho Dame tract which Prank R. DObb, granted and conveyed to Frank ~. Dobb and Darbara c. DObb, hl. wlr., by hl. dc.d dat.d January 26, 1951 and recorded in the Orfico aforesaid 1n Doed Book "p't, Vol. 111, Pogo 32Q. TR^CT 110. ~: ALL that certain tract of land in the Borough of Mount Holly Springs. County < of Cumberland and State of Pennsylvania, bounded and described as follows: BEOINNING Dt a stnko on the E30t aide of Balt1moro Avonue; thenco along said Avonue, North 8 decrees 35 minutes West 50 foet to a 16 foot alley, known os IILauman'n Alloyll: thence along the South aide of sa1d Alley. North 15 degreolJ 25 minutoo East 400 foeti moro or loon, to lendo formerly conveyed by A. P. Mullin to Petl'ieio RUGs: thence along said. lands 215 feet, more or loss. to a stakei t~Qnce along landc formerly of A. F. Mullin of which this tract was a part, South 75 degret:s 25 r.\1nuteG WeGt 150 feet; thenco Uorth 8 degrees 35 minutos West 150 feet to a :stake: thence South 15 degrees 25 minutes Weati80 r..t to tho Place or BEOIlWIIIO. BEI~O tho ai1me tract of land which Helon Mullen Buchl)r, a widow. granted'" and convey.d to Frank R. Dobb, by her deed dated May 12, 1933 and r.cord.d 1~ the Office aforesaid in Deed Book "W", Vol. 11, Page ~1. ,~ TR^CT NO. 5: . ALL that certain tract of land situate in the Borough of Mt. Holly Sprlngs, County of Cumberland and State of Pennsylvania, bounded and described as follows; BEOIUNINO at an 1ron pin at tho. point on Baltimore Avenue between the " property of tho Grantee and that of the Grantors, wh10h 18 approximately 100 foet., South of the intersection of Baltimore Avenue and Lauman'a Alley: thence along 11 the said Balt1more Avenue. North 8 degrees 35 minutea West 50 foet to an iron p1n(' thencc East 75 degre~5 25 minuteo East 180. foot to an 1ron pin on on alley; ,I thence alono the Wc.t .ldc or the sold all.y, South 8 d.gr..a 35 'I Ininutes South 150 Is~t to an iron pin; thence West 75 degrees 25 minutes West 30 feeti thence/8N~e08 25 minutes North 100 feeti and thence West 1~ degrees 25 minutes West 150 feet to the Place of BEGINNING. BEINo the sarna tract of land which Helen M. Bucher and J. C. Bucher, her husband. granted and convoyed to Prank R. BObb, by thoir doed dated Julv 31, 1933 and r.cord.d ln tho ornc. aror..ald ln O.ed Book "K"e Vol. ll~ pa':.r71" ' The :said Frank R. Bobb died 1ntestate on June 22, 191. By v!l'tue 0 tllB , inteGtate laws 1n effect at that timo, Barbara C. Bobb, his wife, becaml; entitled'. to $20,OOO.pO of his csto.te, plus ono-ho.lf of the remainder. The ~ntir(' estate. '1 however, was loss than $20.000.00, thereby entitling Barbara C. Bobb, t~ tho entire eatate :is his surviving spouse. Barbara C., Bobb died on August ,J. 1982 :\ hav1nc first made her laDt will and testament where1n ahe prov1ded. 1nter a11a, ~ that Clarence W. Albright be appointed her executor w1th power to sell any realty.) Said Clarence W. Albright was duly appointed 8S executor and continues to aat. 'i as suc:h. ' " The afol'C:sald five adJo1n1..ns tt"i1cts. containing sccre incorrect calls, aro hereby and here- ,~ rorth cClUlOl1dated lnto one tract wlth the rollowing oo,crlption: I thence~~oosoa~.w&Y&a~(lpatJb~Nf!~.'Wo"~ ~di""~u2ge~ft~ ~l-"ll'&l"?@l~gY.i ,: : point 1 thcnce South 12 degNe' 35 minute. W..t 273 reet to a point 1 thence South 75 degre.. 25 '. i mlnut.. Wo.t 12~ reet to a point; thence North 1 degree w..t ~5 reet to a point;' thence South,75 . :j 00S""'. 25 mlnut., ~",t 180 reet to a point on the ....tem 0100 or North Balt1Jrore Avenue; thenca':. by the e..tem dde or North Balt1nrlre,Avenue, North 8 degree. W..t 210 fe.t to a point in the ,: i: southern alM or lmrnan'. Alley, the Plac. or BEllINNINO. ". . , " ,. " , I " i I I -<0 O"~' t~CX~ 3 ',i,\t~ ~.., ,! " il " 'i: " ,l ~ " E..^ \\\e:, IT WA''''''''TY DCCD NO, 110 " ( ID4ts mrrb1 !lbbr lilt /1 ~ day 01 7tr.u"L" ~ in 111, veOl' 0/ OIl' '-ord one Ihou,and nine hundrrd and oighty-six. i1rlUltrn Lawrence G. Frank, Trustee in Bankruptcy for Daniel A. Hoffman, hereinafter called Grantor - AND - . "'" .. C'1 - ., " c:; .., -' .. .' I .c: ,.,'.' ., -, '" '. :... L.: = . .., , ...: .1J ~~ ~ ::..: ~:,~ ~ , '--:r.:'~ ":!~Q -.. c-n U"I !.Ic.')::! ~ ~ '" I Francis X. Doyle Granteo Ithln'Ull,II" tlmllhr Inid I/{Irfy ,./Ihr /iTAI pnrl,/or and in ~onzidrra:ion o/Ihe .um 01 Thirty-three Thousand Seven lIundred ($33,700.00) /JullaTl, /a,4'/u/ //lun"1I ullhe L'lIiled Slul... 111I1" ",.-II alld Irulllpuid by tI/t' ,n,,1 pari y o/Ihe ,rcond pnrl. Ihe rrcripl ,chcreo/ i. hcTt'bll aclmou:/,.t/Ocd. ,/reshrrcb!l oranl, Imronill.ul/, nlirn rnlrnfl, rdrnu. rnnt'r!1 alld conlirm "ilia Ihc Mid ""rly nf Ihe ucoatl pnrl. his ',ad ,I"ign" ~II that certain piece or parcel of land situate in the Borough of Mt. Holly Springs, Cumberland County. Pennsylvania. bounded and described in accordance with a survey by Thomas A. Neff, Registered Surveyor, dated May 24. 1977, as follows: BEGINNING at an iron pin at the intersection of the northern lino of Hill Street on the eastern side of a 16 foot wide alley; thence along the eastern side of said alley. North 01 degree West. a distance of 144 feet to an iron pin at line of land now or formerly of Frank R. Bobb; thence along said land now or formerly of Bobb. North 63 degrees 902 minutes ~ast, a distance of 124.29 feet to an iron pin to land now OL- f01.'tncloly '.It T.^. TiChy: Uh:"nc:."! dlonlj :;did 1"no nC'~1 or fOrlll~L.ly of 'r.^. 1'ichy, Soulh 12 degree5 21 lltillulcu 30 ticcol1ds \-:cst, n distance of 156.66 feet to an iron pin on the North side of Hill Str~et; thence along the North side of Mill Street. South 67 degrees 20 minutes West, a distance of 67 feet to the Place of BEGINNING. ERECTED on said premises arc ~ mobile homes, included in the purchase. ----- BEING the same premises which Carrie Wells granted and conveyed UlltO Daniel ^. 1I0ffman, for which Lawrence G. ~'rank is his Trustee in Bankruptcy. by Deed dated May 7. 1962, and recorded in the Office of the Recorder of Deeds for Cumberland County In Deed Book T 29, Page 740. ....... This conveyance is being held pursuant to an Order of Bankruptcy Judge Robert J. Woodside. Bankruptcy Judge for the Middle District of Pennsylvania, said Order being dated Jr'l?r~/?7.:i"",.3, 1966. , " Ex\-h~', ~ GARY QUESENBERRY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2983 CIVIL TERM V. FRANCIS X. DOYLE, Defendant IN RE: PRE-TRIAL CONFERENCE ORDER OF COURT AND NOW, December 28, 1994, a special pre-trial conference in the above-captioned matter is fixed for Wednesday, January 18, 1994, at 10:00 a.m., in Courtroom 3. ) (in) George E. Hoffe J. William P. Douglas, Esquire For the Plaintiff David H. Stone, Esquire For the Defendant Court Administrator :ssg GARY QUESENBERRY, . IN THE COURT OF COMMON PLEAS OF . Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . . . v. . NO. 94-2983 CIVIL TERM . . . FRANCIS X. DOYLE, . CIVIL ACTION LAW . Defendant . . DEFENDANT'S PRETRIAL MEMORANDUM I. BASIC FACTS AS TO LIABILITY. The defendant is the owner of a small mobile home park in the Borough of Mount Holly springs. Adjoining the park there is an alley way, a portion of which lies within the metes and bounds description of defendant's property. The said alley way has been used by the defendant, his invitees, tenants and predecessors in title as a driveway and parking area for the said mobile home park. After development of plaintiff's property, which is near to defendant's property, the traffic on the alley way has increased so as to cause damage to the alley way and prevent defendant, his tenants and invitees, from the enjoyment thereof. II. BASIC FACTS AS TO DAMAGES. Defendant has requested the Court to enter an order enjoining the plaintiff, his heirs, assigns and invitees, from entering upon and traversing or using the said alley way. -1- III. PRINCIPAL ISSUES. Whether the plaintiff and his invitees have a right to an unob- structed use of the said alleyway. IV. ISSUES REGARDING ADMISSIBILITY, ETC. None V. WITNESSES TO BE CALLED. 111 ~ 1. Francis X. Doyle. - rvl ;,." ~ ~. 2. Charles Ilaria. .... ~ 3. Surveyor. __ ~ ~ VI. LIST OF EXHIBITS WITH BRIEF IDENTIFICATION. 1. Plans of property of defendant. 2. Photographs of damages to alley way caused by plaintiff and plaintiff's invitees. 3. Title chain to properties of plaintiff and defendant. VII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS. Plaintiff and defendant together with their respective counsels have met on the property site and were unable to reach a settlement of this matter. Respectfully Stone, Esquire for Defendant -2- YOU ARt HUU' AtQUIRtO TO 'IL[ A WItITUH 'USI'OHst '0.. un; [NCLOUD WitH"" TWllttiTynOl DAlS rAO. ,ERVICE HUeOF OJt A JUDGM[NT NAY Ie [HIrlltO AGAIHIt YOU. 111___ DOUGLAS, DOUGLAS & DOUGLAS ATTORNtyS AT LAW ,.. .. lUQtot.,a,..t:IT '" 0 80. re. ATtOIlNU ~. . WI DO HERUY CIRTlfY THAT THE WITHIN II A TRUI.A"~CORRr.CT COPY or THE ORIGINAL FILED IN THIS ACTION. BY ATTORNEY YOU AIU HI Iff In ., QUU'ID to 'IU A wllnn, Itl....O"'~1 .? '1If. r"CLOSIO WitHIN tWINn nOI DAY' rlllo,", !of IIVler IIIM[O' 0" A JUOfj"lllU M" itl lHuntO AGAINST 'OU. ., DOUGLAS DOUGLAS & DOUGLAS .) '. " '\ ~' '~)" 'jl . ~..~ .... ,,"'. 'HUM :""Lt.l .. 0 110. III' ATfOIfNU 'H WI 00 H' PI flf (! MllFl lllAI hH WlrtllH I~ A 'IoUI "I'M t.DkHI' f top, OF Tflr CnIGI"l'L 'IHD Hi IHI~ . ALIICH, ," ------ , " A"OJlIILY SHERIFF'S RETURN COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND In the Court of Common Pleas of Cumberland countr' Pennsylvnaia No. 94-2983 civ 1 Term Notice Civil Action Law Complaint Gary Quesenberry VS Francis x. Doyle R. THOMAS KLINE. Sheriff, who being duly sworn according to law, says, that he made diligent search and inquiry for the within named defendant, to wit: Francis X. Doyle but was unable to locate him in his bailiwick. He therefore deputized the sheriff of Dauphin County, Pennsylvania, Complaint to serve the within Notice Civil Action Law On June l3, 1994 , this office was in receipt of the attached return from Dauphin County, Pennsylvania. Sheriff's Costs: Docketing Out of County Surcharge Dauphin County So answers: "/' ,.' ../zf f'-;:;:;/-~~/ c9'> R. THOMAS KLINE, Sheriff atty 6-13-94 Sworn 14.00 5.00 2.00 20.50 $ 41.50-pd. by and subscribed to before ;J./.w day of 9, · . me this 19 €IV ,A.D. '-, ( n""'- G ftl..iP<-- Prothonotary ~. , . . I COMMONWEALTH OF PENNA: COUNTY OF DAUPHIN: SHERIFF'S RETURN NO. 94-2983 Equity Term PAGE 123 AND NOW: June 10th 19 94 ,at 2:30 p, M. SERVED THE UPON BY PERSONALLY WITHIN Notice & Civil Action Comolaint Francis X. Doyle HANDING TO Francis X. Doyle A TRUE ATTESTED COPY OF THE ORIGINAL Notice & Civil Action Complaint AND MAKING KNOWN TO him THE CONTENTS THEREOF AT the Dauphin Co. Court House, Front and Market Streets, Harrisburg, Pa. SO AN~WERS . ..' ."' ~ ' '}~x..,~ ,11: .,~~ SHERIFF OF DAUPHIN COUNTY1 PENNA BY~a~~) D PUTY SHER F Sworn and subscribed to before ::;s Z ~= ~ROTHONOTARY 19 q,. SHERIFF'S COST $;lo. SO SolA .. _t c . c -1 . - I d ... ? I 1., I ni:) ourt OT ~mmO:i r e:s or \..:Jr.:::::itt'l:n .....:JU';',~'yf' snr:sy '1c:r:i:::: Gory Quesenberry vs. Francis X. Doyle " 95-2983 Civil .'0. :~- :iow, June 6, 1994 :9---. !. SEZ?~~ O:? C~G::::?.!..A..'fD COt,~TY. ?o\.., co h::::,y ci.:ou= d:.: Sh.=17 oi Dauphin ~u:t? :0 ;......:1:: .:..:.. ',V:::, ... .. . ., . .. .. -,. .- :=3 =:pu:::cu =:::11 -....- 11 == ~ ::0. :"'~ Ot == :':3:=. ~~~~~~ sae.."1:! at C;:::::er.2.Cti C~u:O'. ?:I. . .4..ffidavit or Sem~ So =we:. Shc::a' of CoWllT. :':1.. ==::::.s ayci l~_ cosrs ::.c..~ 'V'1CZ ~a:u..-\GE .-\l': l.JJAVrr oS Swcr:: :me:! sai::sc:-J:d bCcrc: --~---. ~ " - .- GARY QUESENBERRY, . IN THE COURT OF COMMON PLEAS OF . Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . . . v. . NO. 94-2983 CIVIL TERM . . . FRANCIS X. DOYLE, . CIVIL ACTION LAW . Defendant . . ENTRY OF APPEARANCE Please enter our appearance on behalf of the defendant, Francis X. Doyle, in the above captioned matter. B vi squire 1.0. No. 39785 414 Bridge Street, P.O. Box E New Cumberland, PA l7070 Telephone: (717) 774-7435 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewrlllen and submllled In duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the lollowlng case: (Check one) (xx lor JURY trial at the next term 01 civil court. lor trial without a jury. . ............................................................................................................................................................................. CAPTION OF CASE (entire caption must be stated In full) (check one) Assumpsit Gary Quesenberry (x) Trespass ) Trespass (Motor Vehicle) (Plaintiff) (other) vs. The trial list will be called on Francis X. Doyle XlDlUc AU\lllRt 9. 1994 Trials commence on Sept. 6. 1994 (Delendant) Pretrials will be held on AUllllRt 17 r 1994 (Brlels are due 5 days belore pretrials.) vs. (The party listing this case lor trial shall provide lorthwlth a copy 01 the praecipe to all counsel. pursuant to local Rule 214.1.) No. 94-2983_ Civil 19__ Indicate the allorney who will try case lor the party who flies this praecipe: William P. Douglas, Esquire, for Plaintiff Indicate trial counsellor other parties If known: David H. Stone, Esquire,for Defendant This case Is ready lor trial. Signed: . L~----Q ~ ~)I~~J----- Print Name: William ~J)Q!lAlJ!.:t 7/15/94 Date: Allorney for: ..__.___. !'l.aiJltii.L______. ,'",' tif":~77::'!:l /(4 a; '_,- - -:~ ;. - '" (-.I cry 0::> - ~. "',l 5 (:)'.:1 ..., ., lI3AVdll'l 3NOoLS 'OOX oLSNIVflV N3XVoL 3B XVH oL'lOV a AB oLN3WflOnr 110 d03ll3H 3~I^lI3S dO 30Lva 3HoL WOlld SAva O~ NIHoLIM WI~lI3.LNOO~ S.oLNvaN3d3a 3HoL OoL X'ld311 V 3'lld OoL a311In0311 311V nOA oLVHoL 3~I.LON 3XVoL 3Sva'ld ~ r-.< I 0'" ~~ ~ .- 0 ~ l! ... u z l! ..:1>< ... c: 0 llo~~ .... III t:l Ul 5 il ti ~ .- 'tl :z: ell ~ iHl E< c: c: <( 0 :\ ... .... Q) ~ 0: I ~~~ III ... ~ ~ 3 !c Iii ~ ~ .. ... llo ... ~ /:i " u~~ . . ~ ~ >< ~ 0 z !! r-. u a ~ G 0: 0: ~ 00 e o .. ~ :! E<u.... B 0 c .. gjQ~ . ~ ~ f E O~N 13 . >< . U I :- ~ ... ::> III ~ r>:I '" 01 .... :>:: u ~~o ~ ~ '" ~ "'u:z: r-. . . . . . STOSI~. '.h,.',\\'lm II.: STlISI,: ATTORNI:YS Al LAW 414 "/tIDQl: !\I.nnr Nt;,,' l'I!).IIII':HI..\NIJ, 1',\ 1711:11 pd\an.\qu..nbry.dol\7." GARY QUESENBERRY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . . v. : NO. 94-2983 CIVIL TERM . . FRANCIS X. DOYLE, Defendant : CIVIL ACTION LAW . . ANSWER TO COMPLAINT AND COUNTERCLAIM AND NOW comes the defendant, Francis X. Doyle, by and through his attorneys, Stone LaFaver & Stone, and sets forth the following answers to plaintiff's complaint: 1. Admitted. 2. Admitted. 3. Denied. Defendant's deed speaks for itself. 4. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation and proof thereof is demanded at time of trial. 5. Admitted and denied. It is admitted that defendant has erected metal posts and a wire across said alley. It is denied that defendant has denied plaintiff quiet enjoyment of said alley. 6. Denied. It is denied that one of the posts erected by the defendant is actually located on the lands of the plaintiff. 7. Denied. It is denied that defendant has no ownership inter- est equitable or otherwise in said alley way. -1- 8. Denied. It is denied that the obstruction of said alley is unlawful or vexatious. 9. Denied. It is denied that any obstruction of said alley diminishes the value of the lands of the plaintiff or may have dimin- ished profits from the businesses located on the property of the plaintiff. 10. Denied. It is denied that any alleged obstruction of the alley was done with wanton, reckless and willful disregard of the rights of the plaintiffs or customers. 1l. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation and proof thereof is demanded at time of trial. WHEREFORE, it is prayed that the complaint of the plaintiff be dismissed and that judgment be entered in favor of the defendant and against the plaintiff for costs of suit. COUNTERCLAIM IN EOUITY Francis X. Doyle v. Gary Quesenberry 1. Paragraphs 1 and 2 of plaintiff's complaint are incorporated herein by reference thereto together with the Exhibits "A" and "B" referenced in said paragraphs 1 and 2. 2. The defendant's tenants, invitees and predecessors in title have enjoyed uninterrupted and exclusive use of a certain alley way adjoining the defendant's property. 3. The plaintiff, Gary Quesenberry, and his invitees have, since the development of plaintiff's land in or about 1992, used the said -2- alley way in a way inconsistent and adverse to the interests of defendant, Francis X. Doyle, his tenants and invitees. 4. The plaintiff, Gary Quesenberry, has no right, title or interest in said alley. WHBREPORE, the defendant, Francis X. Doyle, requests this Honor- able Court to enter an order enjoining the plaintiff, his executors, heirs, assigns and invitees from entering upon, traversing or using the said alley in any way. Respectfully submitted, ~ DAVID 0 E, ESQUIRE 1.0. #39785 414 Bridge St., P.O. Box E New Cumberland, PA 17070 Telephone: (717) 774-7435 Attorneys for Defendant -3- pd\a1.\v..ifi..ff V E R I F I CAT ION Francis X. Doyle states that he is the Defendant named in the foregoing instrument and that he is acquainted with the facts set forth in the foregoing instrument; that the same are true and correct to the best of his knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsification to authorities. Date, 41 ~ /r $,// t/ f, ~~~ V. I IN THE COURT OF COMMON PLEAS I OF CUMBERLAND COUNTY, PENNA. I Civil Action Law GARY QUESENBERRY FRANCIS X. DOYLE I NO. 94-2983 CIVIL TERM ANSWER TO COUNTERCLAIM 1. Admitted. 2. Denied. At no time has the defendant's tenants, invitees and predecessors in title had exclusive use of the alleyway in question, which is adjacent to the defendant's property. 3. Denied. The plaintiff, Gary Quesenberry, and his invitees have used the alleyway in question consistently as a business entrance to the property of the plaintiff, and at no time, was Francis X. Doyle, his tenants, or invitees, precluded from using said alleyway. 4. Denied. The plaintiff, Gary Quesenberry, has rights and interests in said alleyway. WHEREFORE, it is prayed that the counterclaim of the defendant be dismissed. Dated: August lO,l994 DOUGLAS AND DOUGLAS By \},JIlL>.."",\. ~.~"",f- William P. Douglas () Attorney for Defendant 27 W.High St. P.O. Box 26l Carlisle, Pa. l70l3 717-243-1790 Attorney 1.0. 137926 , . -, ., AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA ) I COUNTY OF CUMBERLAND ) Gary L. Quesenberry, being duly sworn according to law, deposes and says that the averments and/or denials of the within Answer to Counterclaim are true and correct to the best of affiant's knowle ge,info at ion and belief. ry Sworn to and subsc lbed before me this Id day of _ Ce~ ,l9~4. (~~,,~ Notary NoIaria/ Seal ~~~ MyC'~'l1mSSion~.llIy~ GARY QUESENBERRY, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2983 CIVIL TERM V. FRANCIS X. DOYLE, Defendant ; , \ lti.B.E.i..YRE-TRIAL CONFERENCE Q.RDER OF COURt AND NOW, December 28,1994, a special pre-trial conference In the above-captioned matter Is fixed for Wednesday, January 18, 1994, at 10:00 a.m" In Courtroom 3. ) (jn ) George E. Hoffe J. William P. Douglas, Esquire For the Plaintiff <-,,' ? = "' "" .-' <.;.0 David H. Stone, Esquire For the Defendant - - Court Administrator :",.:, '>, Qi ,~ ~ . <.0 .;::.. :ssg ~: GARY QUESENBERRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 94-2983 CIVIL TERM VS FRANCIS X. DOYLE, Defendant IN RE: PRETRIAL CONfERfNrE A supplemental pretrial conference was held before the Honorable George E. Hoffer, Judge, on Wednesday, January 18, 1995, with the same attorneys. Each side has now obtained a survey from different surveyors; neither surveyor agrees on the confirmation of the property. In this non-Jury trial, plaintiff is directed to furnish a complete set of Findings of Fact and Conclusions of Law dealing with all aspects of his Trespass case. This work product shall be submitted to the Court and defense counsel no more than 30 days from tOday's date. Defendant has filed a counterclaim sounding in Equity in either a Quiet Title action or Ejectment action. Both parties and attorneys agree that the proper action sholl proceed without further preliminary objections or otherwise as to form and substance because they desire to have this land title and useage resolved. Defendant shall be given 30 days after receipt n' D'~:l- "f'S brief to file a complete set of Findings of Fact and Conclusions of Law dealing with his equitable defense, Plointiff sholl have 20 days after receipt of defendant's work product to file a responsive set of Findings of Fact and Conclusions of Law dealing with the EqUity side of the case, ..... ~ 94-2983 Civil Term Pretrial Conference Page 2 The Court will schedule a non-Jury trial after receipt of plaintiff's first brief. By agreement of the parties, the plaintiff sholl be allowed to file an amendment to his pleadings for an equitable claim of Ejectment. By the Court. ...... "' "" William P. Douglas. Esquire For the Plaintiff David H. Stone, Esquire For the Defendant Court Administrator Prothonotary :mtf <.D <.n GARY QUESENBERRY, Plaintiff v. FRANCIS X. DOYLE, Defendant FRANCIS X. DOYLE, Plaintiff v. GARY L. QUESENBERRY, I. WILLIAM QUESENBERRY, and THE ESTATE OF MICHAEL N. QUESENBERRY, Defendants . . . . . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : ""0. 94-2983 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY No. 96-4892 EQUITY TERM ORDER OF COURT AND NOW, this 25th day of August, 1997, upon consideration of the complaints in the above-captioned matters, and following a nonjury trial, the record is declared closed, and the matters are taken under advisement. WILLIAM P. DOUGLAS, ESQUIRE For Gary Quesenberry CRAIG I. ADLER, ESQUIRE For Francis Doyle wcy ..0 0 -.I ':1 "" ! ,-"1 1:'1J -" ,- I -!in ,'j.:;J -':0 :... , ., ") ='J '. (') , .- ~3n' .. ';"::! .... :..> --) -< '::l =< By the Court, L !i<7 // J esley ~""''''I.<~...c<ct '11'1 I q? ..s" 'lJJ.