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HomeMy WebLinkAbout02-3660EBERLY'S MILL CHURCH OF GOD, Plaintiff vs. JAMES TURBAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLPHND COUNTY OF PENNSYLVP~NIA CIVIL ACTION AT LAW NO. O~-- ~ C'~][ JURY TRIAL DEM3iNDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action 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 CAMNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court House Court Administrator 1 Courthouse Square Carlisle, PA 17013-3387 (717) 240-6200 Mary A.{ Ett~'f~ Ylis~i~ Attorney for Plaintiff EBERLY'S MILL CHURCH OF GOD, Plaintiff vs. JAMES TURBA~N, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA CIVIL ACTION AT LAW NO. ~ - ~G~o JURY TRIAL DEFL~NDED COMPLAINT FOR TRESPASS AND NOW comes the Plaintiff, Eberly's Mill Church of God, by and through their attorneys, Dissinger and Dissinger, and represent the following: 1. The Plaintiff is Eberly's Mill Church of God, whose principal address is 113 Creek Road, Camp Hill, Cumberland County, Pennsylvania, 17011, and 115 Creek Road, Camp Hill, Cumberland County, Pennsylvania, 17011. 2. The Plaintiff has legal title to the afore-mentioned property by virtue of Deed dated August 01, 1994 and recorded in Cumberland County Recorder of Deeds office in Book 109, Page 812. 3. The Defendant is James Turban, whose principal address is One Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania, 17011. 4. The Defendant, during the summer of the year 2001, and on diverse other days and times between that day and the commencement of this suit, has intentionally and negligently caused damage to the Plaintiff's property located at 113 and COMPLAINT IN EJECTMENT 19. The prior paragraphs of the Complaint In Trespass are incorporated herein by reference thereto. 20. That Plaintiff was at all time herein mentioned, and still is, the owner of certain real property located at 113 and 115 Creek Road, Camp Hill, Cumberland County, Pennsylvania, 17011, and more particularly described as follows: AJ~L THOSE TWO (2) CERTAIN lots, being a parcel of land in the Township of Lower Allen, County of Cumberland, Commonwealth of Pennsylvania, more particularly bounded and described in accordance with a survey dated April 22, 1994 by Michael C. D'Angelo, PL5, a copy of which is attached hereto and incorporated herein, as Exhibit A, as follows: BEGINNING at a point a the intersection of Creek Road and Cedar Cliff Drive, thence by the Southern line of Cedar Cliff Drive North 750 52 minutes 00 seconds East, a distance of 100.86 feet to a pipe. Thence along lands now or formerly of Mary L. and Wayne Baer the following four courses and distances: South 27o 14 minutes 00 seconds East a distance of 102.65 feet to a pin; Thence South 62o 46 minutes 00 seconds West a distance of 55.0 feet to a pin; Thence South 27o 14 minutes 00 seconds East a distance of 111.68 feet to a pin; Thence South 670 27 minutes 00 seconds West a distance of 53.56 feet to a pin; Thence along the lands now or formerly of Eberly's Mills Church of God the following three courses and distances of 60.00 feet to a pint; Thence South 72o 00 minutes 00 seconds West a distance of 41.25 feet to a pin; Thence North 15o 38 unlawfully entered on the above-described real property and without right or authority of law ousted Plaintiff therefrom. 24. More specifically, the Defendant caused a pile of rocks and debris to be placed on the Plaintiff's property in the corner of Lot 3 as well as a storage container, a small dumpster, a large Car Mate trailer, a Port-A-John, and various iron ornamental stands. (A copy of the survey performed by Michael C. D'Angelo, PL5 is attached hereto as Exhibit "A".) 25. Defendant has also placed various vehicles on Plaintiff's property effectively blocking Plaintiff's access from the church property (115 Creek Road) to the rental property (113 Creek Road) via the driveway. 26. Despite Plaintiff's request, Defendant has failed and refused to remove the above-described items from Plaintiff's property. 27. That ever since the summer of 2001, Defendant has been in possession of the above-described real property without right and claim of title and has at all time subsequent thereto withheld, and still does withhold, the possession thereof from Plaintiff and has caused damaged to the Plaintiff for unlawful detention in an amount in excess of one thousand five hundred ($1,500.00) dollars. WHEREFORE, Plaintiff prays this Honorable Court to enter judgment against Defendant restoring Plaintiff to the possession of the above-described real property, ordering Defendant to remove all items and debris placed on Plaintiff's property and ordering Defendant to pay costs and damages. Respectfully submitted, DISSINGER AND DISSINGER BY: Mary A. Etter Dissinge~ Attorney for Plaintiff Supreme Court ID # 27736 28 North Thirty-second Street Camp Hill, PA 17011 (717) 975-2840 VERIFICATION I, Wayne Noss, verify that the statements made in the Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification. Wayne.. ,~o~ s~, Ag Eberly s Mill Church of God ,5' EXHIBIT / / / / / 0 t~300 n.,' .t~l ZO LoLl./ JUL-30-O20S=IEP~ FROM-THE SENTIHEL A~ENCY +?t72346108 The' Sentinel Agency Tn~o,na *$ Community ~¢ttlement Company T-$$4 P.03/03 F-613 2146 North Second Street Harrisburg, PennayNenla 17110 Telephone (717) 234-2666 FAX (717) 234-8198 www,sentinelegency.info TITLE INSUJ~,.NCg · TITLE ABETRAC'TS REAL ESTATE CLOSINGS PARCEL NO. 13-24=0805-076 PROPERTY: 113 Creek Road Eberly's Mill Church Martha Mower (1976) Harry and Corn Hart 0948) Elmira Har~ (1917) ABSTRACT OF CHAIN OF TITLE Deed ]09-812 M-26--838 Part of W-13=109 P~rt af P-~~533 Lots 2 & 3, Plan Book 27, page 27 Property "A" Tract 1 therein JUL-1T-OZ II:5SAM FROM-THE SENTINEL AGENCY +?17Z348198 T-3T1 P.nz/06 F-I?T day of August, 1994; ~"F~N EDWARD MOWERY and CHARLES WILLIAM MOWERY, Co-Executors of the Estate of Martha Elizabeth Mowery, herein designated as the ~rantors, AND E~ERLY'S MILL CHURCH OF GOD, in trust for the EAST PENNSYLVANIA CONFERENCE CHURCHES OF GOD~ 900 S. Arlington Avenue, Harrisburg, ~ennsylvania~ herein designated as ~rantee. *~AS, the said Martha Elizabeth Mowery, by her Last Will and Testament, duly proved and recorded in the Cumberland County Register of Wills Office, Pennsylvania, to Estate No. 21-93-975. Letters Testamentary being issued on December 9, 1993, provided, in )ertinent part, as follows: iTE~ V: In addition to powers given them by law, my ~xecutors and their successors acting hereunder shall have the following discretionary powers applicable to all real and personal property held by them, effective without court order and until actual distribution: (b) To sell real estate for any purpose, publicly or privately, for such prices and on such terms as they deem proper, without liability on the purchasers to see to application of the purchase moneys;... ITEM IX: I appoint my sons, CHARLES WILLIAM MOWERY, and EDWARD MOWERY, as Co-Executors of this my Will. WITNESSETH, that the Grantors, for and in consideration of the sum of NINETY THOUSAND DOLLARS ($90,000.00) money of the united States of America, to the Grantors in hand'well and truly paid by the Grantee, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged and the Grantors being therewith fully satisfied, do by these present grant, bargain, sell and convey unto the Grantee forever, ~nn THOSE TWO (2) CERTAIN lots, being a parcel of land in the Township of Lower Allen, County of Cumberland, Commonwealth of Pennsylvania, more particularly bounded and described in accordance with a survey dated April 22, 1994 by Michael C. D'Angelo, PLS, a copy of which is attached hereto and incorporated herein, as Exhibit A, as follows: BEGINNING at a point at the intersection of Creek Road and Cedar 109 812 JUL-IT-02 11:66~ FROg-THE SENTINEL AGENCY +TIT2348196 T-3Tt P.03/66 F-ITT Cliff Drive, thence by the Southern line of Cedar Cliff Drive North 75Q. 52 minutes 00 seconds.East, a distance of 100.86 feet to a pipe. Thence along lands now or formerly of Mary L. and Wayne Baer the following four courses and distances: South 27° 14 minutes 00 seconds East a distance of 102.65 feet to a pin; Thence South 62° 46 minutes 00 seconds West a distance of 55.00 feet to a pin; Thence South 27° 14 minutes 00 seconds East a distance of 111.68 feet to a pin; Thence South 67° 27 minutes 00 seconds West a distance of 53.56 feet to a pin; Thence along the lands now or formerly of Eberly's Mills Church of God the following three courses and distances: South 67° degrees 27 minutes 00 seconds West a distance of 60.00 feet to a point; Thence. South 72° 00 minutes 00 seconds West a distance of 41.25 feet to a pin; Thence North 15° 38.minutes 00 seconds West a distance of 137.06 feet to a p~n; Thence along the Eastern Side of Creek Road North 16° 21 minutes 36 seconds East a distance of 80.05 feet to a point; Thence along the same North 16° 21 minutes 36 sedonds East a distance of 40.01 feet to a point, the place of Eeginning. cONTAINING 33,350.50 square feet and under and subject to all Right-of-Ways and Easements of record, including, but not limited to the Right of Way Agreement dated June 29, 1994 by and between, EDWARD E. MOWERY, also known as EDWARD MOWERY, and CHARLES W. MOWERY also known as CMARLES WILLIAM MOWERY, Co-Executors of the Estate of MARTHA E. MOWERY, also known as MARTMA ELIZABETH MOWERY land WAYNE BAK. R, said agreement beinq recorded on July 18, 1994 in the Cumberland County Recorder of Deeds Office in Miscellaneous Book 478, Page 142. ALSO BEING Lots Nos. 2 and 3 on the Subdivision Plan for Cora E. Mart Estate recorded in Planbook 27, Page 27, in the Cumberland County Recorder's Office. HAVING THEREON ERECTED a single family dwelling house known as No. 113 Creek Road, Camp Hill, Pennsylvania. BEING the same premises which Martha E. Mowery, a single person, received pursuant to Decree of the Orphans Court, Cumberland County, dated March 23, 1976, and being recorded in the Cumberland County Recorder of Deeds Office, Deedbook M26, Volume 26, Page 838. Marth'a Elizabeth Mowery died on November 14, 1993. FURTHER SUBJECT to all Acts of Assembly, County and Township Ordinances, rights of Public Utility and Public Service Companies, existing restrictions and easements, visible or of record, to the extent that any persons or entities have acquired legal rights hereto. JUL-l?-02 11:$8AM FROV,-THE SENTINEL AGENCY +7172348199 T-3T1 P.04/05 F-ITT TOGET 4 .R%%qTH all and singular the buildings, improvements, ways, woods, waters, watercourses, rights, liberties, privileges, hereditament and appurtenances to the same belongs or in anyway appertaining; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof; ~ also all the estate, right, title, interest, use, possession, property, claim and demand whatsoever of the Grantor both in law and in equity, of, in and to the premises herein described and every part and parcel thereof with the appurtenances. TO HA~'E ~uND TO HOLD all and singular the premises herein described together with the hereditament and appurtenances unto the Grantee and to Grantee proper use and benefit forever. In all references herein to any parties, persons, entities or corporations, the use of any particular gender or the plural or ,singular number is intended to include the appropriate gender or 'number as the text of the within instrument may require. Wherever in this instrument any party shall be designated or referred to by name or general reference, such designation is intended to and shall have the same effect as if the words "heirs, executors, administrators, personal or legal representatives, successors and assigns" had been inserted after each and every such designation. IN r I WF IEREOF, the Grantors has hereunto set their hands and seals the day and year first above written. $IGNED,~E~LED and DELIVERED in th~pr,~sen~; of or ATTESTED by WITNESS EDWARD MOW / Co-Executor of Estate of Martha Elizabeth Mowery Martha Elizabeth Mower¥ JUL-I?-OZ 11:59AM FROM-THE SENTINEL AGENCY +T1TZS491G~ T-S?1 P.OS/OE F-1TT ) SS. ' · ~-' ~ "~:~'~ COUNTY OF CUMBERLAND ) ' On this let day of August , 1994, before me, a Notary Publio, the undersigned officer~ personally appeared Charles William Mowery and Edward Mowery, known to me (or satisfactor~ly proven) to be the person, whose name(s) are subscribed to the within instrument, and acknowledged that they executed the foregoing DEED in the capacity therein~..s~~ for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and~ I H~BY CERT~ ~hat'thme.add~s of t~ Grantee herein COI~601~ALTH OF PENN$1'LVAI~IA ) Recorded in the Office for ~ecording of Deeds in and for No.~ Page ~ Etc.. of Witness my hand and Seal of Office this ~ day 8i5 Plat of Deed Calls for: 109-812 .... AREA ...... CLOSING ERROR .. 109-812 Scale : 108 ft/in Acres : 0.766 Bearing: N47.4234E North Shift: +0 Sq. Feet : 33351 Feet : 0.33 East Shift : +0 Sq. Meters: 3098.4 Meters : 0.100 DMS Rotated: +000.0000 Perimeter : 782.12 Precision: 1/2391 4. 5. 6. 7. 8. 9. 10. N75.5200E 100.86 S27.1400E 102.65 S62.4600W 55.00 S27 1400E 111.68 S67 2700W 53.56 S67 2700W 60.00 S72 0000W 41.25 N15 3800W 137.06 N16 2136E 80.05 N16 2136E 40.01 Plat of Deed Calls for: disngerlotl 17-22 disngerlotl 17-22 Scale : 108 ft/in North Shift: +0 East Shift : +0 DMS Rotated: +000.0000 ......... AREA ......... Acres : 0.253 Sq. Feet : 11007 Sq. Meters: 1022.6 Perimeter : 591.18 .. CLOSING ERROR .. Bearing: S16.0101E Feet : 0.12 Meters : 0.035 Precision: 1/5120 1. S27.14E 218 2. S62.46W 75 ~3. N27.14W 120 4. N62.46E 55 5. N27.14W 102.65 6. N75.32E 20.53 Clienl: disnger]oll 17-22 Client: disn~rlotl 17-22 Plat of Deed Calls for: disngerlotl 17-22 disngerlotl 17-22 ......... AREA ........... CLOSING ERROR .. Scale : 25 ft/in Acres : 0.253 Bearing: S16.0101E North Shi~t: +0 Sq. Feet : 11007 Feet : 0.12 East Shift : +0 Sq. Meters: 1022.6 Meters : 0.035 DMS Rotated: +000.0000 Perimeter : 591.18 Precision: 1/5120 1. S27.14E 218 2. S62.46W 75 ~ 3. N27.14W 120 4. N62.46E 55 5. N27.14W 102.65 6. N75.32E 20.53 ON(:~d~S~ I NO. ~/- ~-~/~ 14-7__ AND NO~, ~his ~JJ~ day O~ ~ . 1976~ a~ ..m. ~ u~n preien~a~L~ of ~e vL~Ln ~cLtL~ ~d ~ ~tL~ of 3ohs E. Slake, Esquire, It ti he~ ~c~ed ~lt, ~ mo~ance v~ ~e mta~nt of p~med dtltrtbutton in Lover Alien Township, Cumberland County, Pennsylvania, moro parttoulariy bounded and desorlbed aa follmes, to wits BEGTNMXNG at a point where the southern line of Cedar Cliff Drive interacts with the eastern line of Creek Roadl thence along the southern line o~ Cedar Cliff DrlVem North 75 degrees 52 minutes East, a distance of 100.86 feet to the western line of a 20 feet vide right of way shown on the herein- the western line of said right of way, South 27 degrees 14 minutes East, a dial:asea of 102.65 feet to a po~nt where said 2O feet vide right of way ~n~rseots with a 1S feat vide right of way1 theses along the northern line of said 15 feet vide right of way, South 62 degz~mes 46 minu~es West, a distance of 55 oa&d ~5 ~eot w~de Fight of way Zn ~d along 27 ~qreee 14 ~nu~s East, a d~nt~ce of ~lls ~ur~ of ~, Sou~ 67 degrees 27 stake! ~han~o continuing along Land o£ brly ~lLa ChuFcA of God, Sou~ 72 degrees a distance of 41.25 feet ~o a m~k ~n ~hanon continuing aL~ L~b o~ ~erly ChuF~ O~ ~d~ NO~ ~5 ~g~l 38 ~nu~l Weo~, a ~l~ of X37.0~ ~t ~ a on ~e eas~ r~ of ray ~ o~ C~ek ~ad; ~hon~ along said :~d~ No~ L6 ~1 ~nutee 28 se~nde EO~, a d~stn~ o~ ~20.05 ~ee~ ~o a ~n~, ~e P~a~ of ~GZ~XNG. ~HER WITIf a right of way va~II~J fr~du 20 ere and southern aides of Lot No. 2 an shown on ~o bereLnafter nontioned plan of lots. BEZNG Lo~s NOS. 2 end 3 on ~he subdivision Plan for Core ~. If&r~c Rota~e reonrdad tn Plan nook 27; Page 27, Cumberland Count~ BEING part of the p~en~aee which Narr~ L. HaL~ by deed dated end ~e sa~d [lar~ L. Har~ ~ed ~er ~0, 1962 his ~d~vLded one-hal~ ~nte~s~ ~eroby ~st~ng ~n Cora E. Har~ who died J~e 10, 1974, ~d by he= Las~ W$11 and Tes~n~ office o~ ~e ~gister of WIlls C~rland Co~y~ Pennsylvania Sn W~11 ~k , Page proper~y to Hartha ALL ~hat certain parcel of ground aitua*- In Lower Allen Township, Cumberland County, Pennsylvania, more particularly bounded and desc~$bed aa follows, to wlt~ of o~her property which the Grantee Jointly wi~h her spouse, said point Har~ha ~...P~.ary and b.elng Lot No. 3 on minutes 00 seconds West a distance of 137.06 feet to a pin; Thence along the Eastern side of Creek Road North 16o 21 minutes 36 seconds East a distance of 80.05 feet to a pint; Thence along the same North 16o 21 minutes 36 seconds East a distance of 40.01 feet to a point, the place of Beginning. CONTAINING 33,350.50 square feet and under and subject to all Right-of-Ways and Easements of recorded, including, but not limited to the Right of Way Agreement dated June 29, 1994 by and between, EDWARD E. MOWERY, also know as EDWARD MOWERY, and CHARLES W. MOWERY, also know as CH~ARLES WILLI~/M MOWERY, Co-Executors of the Estate of MJ~RTHA E. MOWERY, also know as MARTHA ELIZABETH MOWERY and WAYNE BAER, said agreement being recorded on Ju~y 18, 1994 in the Cumberland County Recorder of Deeds Office in Miscellaneous Book 478, Page 142. A~LSO BEING Lots Nos. 2 and 3 on the Subdivision Plan for Cora E. Hart Estate recorded in Planbook 27, Page 27, in the Cumberland County Recorder's office. HAVING THEREON ERECTED a single family dwelling house known as No. 113 Creek Road, Camp Hill, Pennsylvania. (A copy of the Deed is attached hereto as Exhibit "A".) 21. That the abstracts of the title on which Plaintiff relies is attached hereto as Exhibit "B". (Please note that 113 and 115 Creek Road are on the same deed.) 22. By virtue of the afore-mentioned Deed, Plaintiff has the right to immediate exclusive possession. 23. Defendant, since the summer of 2001 and on diverse other days and times between that day the commencement of this suit, the haretnaf~r mentXonod plan of lots; E~, a d~lt~ of 53.56 ~ee~ ~ m ~ on 27 ~v~es 14 ~nutes Eao~, a d~o~n~ of 8.32 ~ ~ a ~lnt, ~e PIa~ of BBZNG ~ NO. 3-A on ~te pSen of ~o~, pa:~ by g~ard F. Sin~rl, R.8., dasd Aught 20, 1975, ~ plan ~o ro~d in P~ B~k 27, ~ago 27, C~eF~d BEING p~C of ~o pre~aes watch HAF~ Lo llar~ . also kn~ as E~ard L. Ilart~ by d~d daMd J~o 19~ 1948, gF~d ~d un~ HaE~ L. ltart ~d ~ra E, Har~ his V~ ~ed LO ro~r~d ~n ~ed ~ aw'; VOL. saLd Har~ L. Har~ dLed ~r 10, 1062, ~n ~ra B. Hart ~o dLod J~ 10~ 1974, ~d her ~t ~11 nd Tea~nt re~d ~n ~ offL~ of ~e ~gLoter o~ ~111e ~n ~d for ~: devL,ed ~0 C* To Hm~ L* Hartt ALL ~at cert~Ln trac~ or parcel of land . ~o~r~d am ~oll~s, ~ wits .,~.... ~GX~XHG at a ~tnt on ~e sou~ern lt~ o~ heirs o~ ULllL~ R. ~aa, vh~ch ~n~ LO 140 s~va~ly a~ r~gh~ angles v~ saLd ~e no~e~ lLne o~ a 20 fee~ vL~ alley, 35 ~' ~ T~t, ~re or leos, to a ~ht ~ ~e 1Lno o~ ~t So. ~; ~en~ no~ardly along saLd d~visLon lLne ~d ~h ~e con~r of partLtLon vail between tale ~d ~e nd~oLn~ng ho~e ~d beyond, ~02 feet, ~re or leos, ~ e~a~ly ming ~e mou~e~ lt~ o~ aatd U*~X Av~uo, 35 feet to a ~tnC, ~e PXa~ · of BEGX~XNG. .. ~NG ~ere~ erec~d a brt~ ~elltnv ' Ponnaylv~ta. [T;~CEETAIN LOT OF GROUND RITUATE IN THE VILLAGE O~ ~OILING BPRINRS~ COUNTY OF CUMBERLAND ' PENNSYLVANI~ BOUNDED AND DESCRIBED ~S FOLLOWS= tNG~T A'OORNER OF FIERT STREET ADJOINING LANDS NOW OR FORMERLY OF.ORUClLLA C. MYERS; ['~ID LANOB NORTH 16A FEET TO A CORNER AT AN ALLEY; THENCE WEST ALONG SAID ALLEY, 36 ]RflER ON THE LAND NOW OR FORMERLY OF dOHN E. FISSEL; THENCE SOUTH 16~ FEET ALONG LAND OF )~[tTO A CORNER ON SAID FIRST STREET; THENCE EAST ALONG SAID FIRST BTREET~ ~B FEET TO tHE SAME PREMISES ~HICH JOHN E. FISSEL BY OREO DATED APRIL 6, 1907 AND RECORDED IN THE DEEDS IN AND FOR SAID CUMBERLAND COUNTY IN DEED BOOK "P"~ VOL. 8~ PAGE 281~ GRANTED AND ELLEN KUHN. THE SAID ELLEN KUHN DIED INTESTATE dUNE 26~ 1927~ LEAVING TO SURVIVE HER, )AREy F. XUHN AND TWO CHILDBED, EUGENE F. KUHN AND THELMA I. KUHN~ NOW THELMA I, PEFFLEYo ~EY F~ KUHN DIED NOT REMARRY AND DIED INTESTATE OCTOBER ?, [~6~ THUS VESTING THE TITLE {UG~NE F, KUHN ANP THELMA I. KUHN~ GRANTORS HEREIN, HIS ONLY CHILDREN. :i[~;ID GRANTORS, DO HEREBY COVENANT THAT THEY WILL WARRANT GENERALLY THE PROPERTY HEREBY ~HEREOFi SAID GRANTORS HAVE HEREUNTO SET THE.IR HANDS AND SEALS THE DAY AND YEAR GE EUGENE F. (SEAL) ~i~ THELMA I. PEFFLEY (SEAL) :.~ ARTHUR 8. PEFFLEY (SEAL) INSYLVANIA ) Jt~.ERLAND · SS WHEREOF~ I HEREUNTO SET MY HAND AND OFFICIAL SEAL. ' '' NGTARV PDJiIG iR~BYiOERTIFY,,, THAT THE PRECIGE RESIDENCE OF THE WITHIN NAMED GRANTEE IS BOLLING SPRINGS~ dOGEPH J. MClNTOSH ':'~*' ~ ~ MADE THE 19TH DAy OF dUNE IN THE YEAR OF OUR LORD ONE THOUSAND NINE HUNDRED . ,, ~ LAWFUL MONEY OF THE UNITED STATES OF AMERICA, WELL AND TRULY PAiD BY THE SAID ~B~ PRESENTS~ THE RECE PT WHEREOF S HEREBY ACKNOWLEDGED~ HAS GRANTED~ BARGAINED A~iCERTA N TRACT ~F LAND SITUATE IN THE TOWNSHIP OF LOWER ALLEN,COUNTY OF CUMB~}~LAND AND OF GOD NORTH TEN (10) DEGREES WEST ONE HUNDRED EIGHTY-81X (186) FEET TO A 8TAKEi THE C SAblE SOUTH EI GH~y-F,iVE (85) DEGREES TWENTY-THR~ (23) MINUTE8 WEST FORTY-ONE AND TWEN'TY~pI ONE-HUNDREDTHS (&1o25) FEET TO A POINT IH THE WHITE HILL-EBERLy'S MILLS ROAD; THENCE~yHs~ ROAD AND LAND8 NOW OR LATE OF BERTHA GILBERT NORTH TWO (2) DEGREES FIFTEEN (15) MINUTEs?~ ONE HUNDRED FORTY-EIGHT AND FIVE-TENTHG (]./*8°5) FEET TO A POINT; THENCE DY THE SAME NORTH FIVE (25) DEGREEs EAST ONE HUNDRED THIRTY-FIVE AND THREE-TENTH8 (1~5o3) FEET TO A POIN~ii!~ BY THE ROAD TO NEW CU~ViBERLAND AND LANDS NOW OR LATE OF DANIEL HART NORTH EIGHTY-ONE TWENTY-FOUR (24) MINUTES EAST ONE HUNDRED (100) FEET TQ A PiN AT CORNER OF LAND8 NOW ORI-,A1 BLISs~ THENCE BY I~IE SAME SOUTH ~WENTY-ONE (21) DEGREES FIFTY-FOUR (54) MINUTES EAST T~/O DRED NINETy AND FIFTEEN ONE~HUNDREDTHS (290.15) FEET TO A 8TAKEj THENCE BY THE SAME NORTHS FOUR (~/~) DEGREES THIRTY.(30) MINUTEs .EAST SEVENTY-THREE AND FOUR-TENTHS (?3o&) FEET TO A 8 THENCE BY LANDS NOW OR LATE OF SOUTH TWENTY-SIX (26) DEGREEs TWENTY-SEVEN (27) MINUTE8 EAST NINETY-EIGHT AN~ SEVENTY-EIGHT ONE-HUNDREOTHS (9B.7S) FEET TO A STAKE AT LINE OF LANDS NO~ LATE OF MARY MARSERGER~ THENCE BY THE SAME SOUTH SIXTY-THREE (63) DEGREES THIRTy (30) MI N UTi WEST THREE HUNDRED SEVENTEEN (317) FEET TO A STABE~ ~'IE POINT OR PLACE DF BEGINNING. CONTAINING TWO AND ONE-TENTH (2.1) ACREs. HAVING THEREON ERECTED A SINGLE FRAME D~ELLING HOUSE. BEING PART OF THE PREMISEs WHICH JACOB Co HART AND MARTHA HART~ HIS WIFE, BY DEED ,D~T~O 16TH DAY.OF MARCH~ 1917~ AND RECORDED IN THE CUMBERLAND COUNTY RECORDER~S OFFICE IN DEEO.B~f "P", VOL. S, PAGE 533~ GRANTED AND CONVEYED UNTO ELMIRA V° HART. THE SAID DEING SEIZED IN FEE OF SA'ID PREMISEs D' .... ELMIRA VD HART" PREVIOUSLY MADE HER LAST WILL AND TE~T VI ~ 921, AND SINCE HER DEATH PROBATED BEFORE THE REGISTER OF WILLS OF CUi~LAND COUNTY~ WHEREIN SHE DEVISED SAIO PR( TO HER GHOTHOR. " OS C. HART. FOR L'FE. W,TH REMA,NDER OF EDWARD L. HART. THE GA ID HART, THE 8AtG EDWARD L. HART,BEING THE SON OF JACOB Co HART AND BEING THE GRANTOR HEREi~ I WAS NNOWN AND CALLED BY HIS AUNT~ ~HE SAID ELMIRA V. HART, BY T~E GIVEN NAME ~!! EDWARD. TOGETHER WITH ALL AND SINGULAR THE TENEMENTS, HEREDITAMENTS AND APPURTENANCES TO[ BELONGIflG~ UR !N ANYWISE APPERTAINING~ AND THE REVERBION AND REVERSIONS, REMAINDER.AND R'EM~,,I:ND ERS~ RENTS~ ISSUES AND PROFIT8 THEREOF~ AND ALSo, ALL THE ESTATE~RIGHT! TITLE, I NTEREST~ I~. PEATY, CLAIM AND DEMAND WHATSOEVER~ BOTH IN LAW AND E~UITy, OF THE SAID PARTy OF THE FIRST PAR OF~ IN~ TO OR OUT*OF THE SAID PI~EMISES. AND EVERy PART AND PARCEL THEREOF~ ' · TO HAVE AND TO HOLD THE SAID PREMtSES~ WITH ALL ANG SINGULAR THE APPURTENANCES, UNTO THE SAID PARTIES OF THE SECOND PA~T. THEIR HEIRS AND ASSIGNS~ TO AND FOR THE ONLY PROPER USE AND B~ IIOOF OF THE SAID PARTIES OF THE SECOND PART, THEIR HEIRS AND ASSIGNS FOREVER. AND THE SAID P~RTY OF THE FIRST PART~ FOR HIMSELF~ HIS HEIRS! EXECUTORG AND ADMiNISTRATORs DOES, BY THEBE PRESENTS~ COVENANT~ GRANT ANo AGREE TO AND WITH THE SAID .PART ES OF'THE SECOND PART, THEIR HEIRS AND ASSIGNS~ THAT ~E~ THE SAID PARTY OF THE FIRST PART~ AND HIS HEIRs~ AND SINGULAR THE HEREDITN~IENTS AND PREMISEs HEREINABOVE DESCRIBED AND ~RANTED OR M~NTJONED AND" INTENDED SO TO BW~ WITH THE APPURTENANCES, UNTO THE SAID PARTIES OF THE SECOND.PART, THEIR HEIR~ AND ASSIGNS, AGAINST THE SAID PARTy OF THE FIRST PART~ AND HIS HEIRS AND AGAINST ALL AND EVER~ OTHER PERSON DR PERSONS WHOMSOEVER LAWfULLy CLAIMING CLAiMiNG DR TO CLAIM' THE SAME OR ~NY-PA~~ ~H~REOF~ SHALL AND WILL BY THESE PRESENTS~ WARRANT AND FOREVER DEFEND. IN WITNEss WHEREOF~ THE SAID PARTY OF THE FIRST PART HAS HEREUNTO SET HiS HAND AND 8EAL.:t THE OAy AND YEAR FIRST ABOVE WRITTEN. SIGNED~ SEALED AND DELIVERED IN THE PRESENCE OF WU. H. GRAHAM STATE OF PENNSYLVANIA HARRy L. HART EDWARD L. HART ON '~'llB, THE 19TH DAy OF dUNE, 1~8, BEFORE ME, THE UNDERSIGNED OFFICER, PERSONALLy EK':, AT THE ENO Plat of Deed Calls for: 13-W-109 13-W-109 Scale : 108 ft/in North Shift: +0 East Shift : +0 DMS Rotated: +000.0000 ......... AREA ......... Acres : 2.098 ? Sq. Feet : 91389 ? Sq. Meters: 8490.3 ? Perimeter : 1390.38 .. CLOSING ERROR .. Bearing: NS1.4455W Feet : 11.71 Meters : 3.569 Precision: 1/119 1. N10W 186 2 S85.23W 41.25 .3 N2.15W 148.5 4 N25E 135.3 5 N81.24E 100 6 S21.54E 290.15 7 N64.30E 73.4 8. S26.27E 98.78 9. S63.30W 317 Jul-Z4-ZnO! Froe..PRBIIER ABSTRACT +Z4~ 35g0 T-Off1 P,OOZ/OOO F-BO$ , DEB'D JuJ-24-200Z 01 :Olpe Frae~-Pl~Ml£R ABSTRACT +243 a300 T-08I P.063/00:1 F-COS ~feJ,~,hs S[sZ'*,, 'COU~l~f* ~ I Ae:L:., Ifoz~b n,~ne (9) .dq~es JUL-~O-OZ O~:ISPM F~O~THE SENTINEL ^~ENCY +?172349195 'The Sentinel Agency 2146 North Second STreet Harrfsburg, Peno~¥1vania 17~10 Telephone (717) 234-2666 FAX (7t7) 234-8198 .... .... www.sentinelager~¥Jnfo TITLE INSUP~A, NCE · TITLE ABSTRACTS R~^L ESTATE CLOSINGS PARCEL NO. 13-24-0805-096 PROPERTY: I Cedar CliffDrlve O~ner James Turban Wayne & Mary laaer Mary Boer (1976) Harry & Cora Hart (1948) Elmira Hart (191'0 ABSTRACT OF CHAIN OF TITLE 222-51'7 Lots 1 & 3A,  Plan Book 27, Page 27 (1978) B-28-275 (Lot 3-A) (1966) F-22-119 {Lot 1) (no recital) Plan Book 17, Page 22 M-26-838 (Parcel "B") W-13-109 & P-8-533~) W-13-109 P-8-533 (Tract !) ~) As to the Eastern 20* +/- Author~ignaf~ry File No, ~158 CU~I~ERIJ3~O COUf~Ty.pA Between Wayn~ L. Ba~ by I~ Atton~ey-ln-Faet gll~n F. ~hemor~ Witnesse~ ~t ~h~ ~ia Grantor for and in conaid*ration of Ill~ ~um of ONg HUNDRgD husband, in The ~aid Ma~ g Baer died November 17, 1979 lhereby vesting litle in Wayne L. Boer hy DISTRICT 21 MAI' F-22~119 & B-28-725 ~oo~ 222 r:,~,c 5i7 Together wi~ all and singular thc buildings irpprovements, ways, streets, alleys, driveways, passages, waters, water-courses, rights, liberties, privilnges, hereditarnents and appurtenances, whatsoever unto the hereby gratond premises belonging, or in anywise appertaining, and the reversions and remainders, rents, issues, and profiM thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of the said grantor, a~ well at law as in equity, of, in and to the same. To have and to hold th, said lot or pt=ce of ground described he~edltemems and premises heirs and assigns, to and for the only proper use and behoof of the said Grantee. histheir heirs and assigns, And the said Grantor, his heirs, executors and administrators do covenant, promise and ngree,4o and with In Witness Whereof, the party oflhe first part hereumo set his hand and seal. Daled the day Sealed and Delivered IN THE PRESENCE OF US: WITHESSETH, that In consideration of ONE AND NO/100--,, ......................... (~'~ .00) ......... Doffars, h(~r®by grant and ~'28 e,~c~ 725 BEGINNING at an iron pipe Ln the Southerly Right-of-way line of Cedar Cliff Drive, which said point is South 75 degrees 52 minutes West, a distance of 100.86 feet from a stake located on the Southerly right- of-way line of said Cedar Cliff Drive a= its point of ~n=ers~ction with =hence ~ land of William N. Bliss North 27 degrees 14 minu~es Wes=, distance of 218 fee~ ~o a s~ake in the Southerly eight-of-way line of 20.53 foe= to an iron pipe, ~he place of Office of the Reco=der of Deeds in and for Cu~rland County, vania, and sub~ee~ Go rights-of-way : 119 t O~PHA~Se COURT DZVZSZON o'olo~ ,m., u~n preoenta~l~ of ~e wX~Xn ~tLtXon ~at, In ao~=dance wi~ the Bta~nt o~ p~eed distribution ~nf~d by this cou~t on Ha=ch 2~ 197G, ~e roll.lng d~icribed A. TO Martha E. Mower~ A~L that certain ~wo lots of ground, together with the building erected thereon situate in Lower Allen Township, CumberLand County, Pennsylvaniaw ~ore particularly bounded and atake~ ~henc~ continuing along land of HberlM M~lls Church of ~od, Sou~h 72 de~reea West, a d~s~e of 41.25 ~ee~ to a m~ ~n oono~ . ~en~ con~inu~nq a~onq L~ of Chur~ of ~d, ~o~ ~5 degrees 38 Wes~, a d~s~ance of ~37.06 ~ee~ ~o a on ~e eas2ern rl~h2 of way line of Creek BEING LOts NOS. 2 and 3 on the subdivision Plan for Cora E. Har~ Estate recorded in Plan Book 27, Page 27, Cumberland County BEING part of ~he premises which Bar~y L. Hart by deed dated June 19, 1948 granted and ~onveyed unto Har~y L. Hart and Cora E. Hart, and the said llarry L. Hart died December 10, 1962 his undivided one-half interest thereby vesting in Cora E. Hart who died June 10, 1974, and by her Last Will and Testament recorded in ~he office of the Register of Wills in and for Cumberland County, Pennsylvania in Will Book , Page , devised the aforesaid property ~o Martha E. Mowery. B. TO Mar~ L. Baerl AJ~L that certain parse1 of ground situate In Lower Allen Township, Cumberland County, Pennsylvania, mo~e partioularly bounded and described as follows, to witl BEING Lot No. 3-A on tim plan of iot~ pre- pared by Edward P. Banders, dated August 20, 19?S, which plan is recorded in plan BOOk 27, Page 27, Cumberland To }lar~ L. Hart~ ALL that certain tract or parcel of land sitcath Pennsylva~ia, 'more particularly bounded and described as follows, ~o wits .,~ . . BEGINNING at a point on the southern line of H~m~l Avenue, as laid down by the heirs of William R. Gorges, which point is 140 feet west of the western line of Mllltown Road at the division line of property No. 7~ thence , ,..... southwardly at right angles with said a~nel Avenue, 102 feet, more or less, to a point on the northern line of a 20 feet wide alley, 35 ''% '[ ~ feet, more or less, to a point on the division line of Lot No. 11~ thence northwardly along said division line and through the center of a partition wall between this and i:he ad~oining house and beyond, 102 feet, more or less, to ~. ~,..., ?. the southern line of Hum~sl Avenuel and theeoo eastwardly &long the southern line of laid Hu~u~el Avenue, 35 feet to & point~ the Place HAVXNG thereon erected a brick dwelling house known es 9 Hummel Avenue, Ca~p E/X1, 'Pennsylvania. ~,IN LOT OF GROUND SITUATE IN THE VILLAGE OF BOILING SPRINRS~ COUNTY OF CUM~ERLANO YLVANI'Af BOUNDED AND DESCRIBED .~S FOLLOWS.' A ;cORNER OF FIRST STREET ADJOINING LANDS NOW OR FORMERLY OF .DRUCILLA C. MYERS~ LANDS NORTH 16~. FEET TO A CORNER AT AN ALLEY; THENCE WEST ALONG SAID ALLEY~ 38 N~THE LAND'NOW OR FORMERLY OF JOHN E. FISSEL; THENCE SOUTH 16~. FEET ALONG LAND OF A'~C'ORNER ON SAID FIRST STREET~ THENCE EAST ALONG SAID FIRST STREET~ 38 FEET TO OF: BEG INN I NG, ~'Yp~E~IIBES.~/HICH JOHN ED FISBEL DY DEED DATED APRIL 6f 1907 AND RECORDED IN THE rNL3AND FOR SAID CUMBERLAND COUNTY IN DEED BOOK "P"f VOL. 8f PAGE 281~ ORANTEO AND ~N~! THE SAID ELLEN KUHN DIED INTESTATE JUNE 2~f 1927f LEAVING TO SURVIVE HERr ~,KUHN AND 3~/0 CHILDREOf EUGENE F. KUHN AND THELblA l. KUHNf NOW THE!-MA If PEFFLEY. KUHN DIED NOT REMARRY AND DiED INTESTATE OCTOBER ?~ 1ox~.6~ THUS VESTING THE TITLE Fo'i!KUHN AND THELMA I. KUHN~ GRANTORS HEREINf HIS ONLY CHILDREN. GRANTGRS~ DO HEREBY COVENANT THAT THEY WILL WARRANT GENERALLY THE PROPERTY HEREBY :EREOF~ SAID GRANTORS HAVE HEREUNTO SET I~'IE.iR HANDS AND SEALS THE DAY AND YEAR Ne DELIVERED ~CE OF NTOSH EUGENE F. KUHN (SEAL) THELMA Io KUHN (SEAL) THELMA Io PEFFLEY (SEAL) ARTHUR So PEFFLEY (SEAL) NIA ) ND )SS. 21~T DAY OF JUNE~ 19/*6~ BEFORE ME THE UNDERSIGNED OFFICER~ PERSONALLY APPEARED VORCED,~MAN~ THELMA I. K~HN (NOW THELMA Io PEFFLEY) AND ARTHUR So PEFFLEY KNOWN TC ILY PROVEN) TO BE THE PERSONS WHOSE NAMESAARE SUBSCRIBED TO THE WtTHIN INSTRUMLC'NTf HAT THEY EXECUTED ZH~ SAME FOR THE PURPOSES THEREIN CONTAINED° IER[OF~ I HEREUNTO SET MY HAND AND OFFICIAL SEAL. .;"' NOTARV '~ C~.~P. AT END OF NEXT SENATE dOSEPH Jo MCINTOSH ATTORNEY FOR GRANTEE. ][ I ' THIS INDENTUREf f~I=~MADE THE 19TH GAY OF JUNE IN THE YEAR OF OUR LORD ONE THOUSAND NINE HUNDRED ¢ORTV-E S.T, I~! A A 'BE3~/EEN H RRY Lo H RTl ALSO KNOWN AS EO~ARD L. HART~ OF ~E TOWNSHIP OF LO~ER [~ ~LLEN~ COUNTY OF CUMBERLAND AND STATE OF PENNSYLVANIA~ PARTY OF THE FIRST ~ PART~ A N D HARRY L. HART AND CORA E. HART~ HIS WIFE~ OF _~p.l THE SAME PLACE~ PARTIES OF THE SECOND P~T~ WITNESSE~H~THAT THE SAID PARTY OF THE FIRST PART~ FOR AND IN CONSIOE- ~ RATION OF THE SUM OF ONE DOLLAR (~1.00) AND OTHER VALUABLE CONSIDERATIONS~ ~ LAWFUL MONEY OF ~E UNITED STATES OF ~ERtCA~ WELL AND TRULY PAID BY THE SAID ~OND P~T TO THE SAID P~TIES OF THE FIRST PART~ AT AND BEFORE THE SEALING AND PRESENTS~ THE RECEIPT WHEREOF IS HEREBY ACKNOWLEDGED, HAS GRANTED~ BARGAINED~ ;EOFFED~ REL~SED~ CONVEYED AND CONFIRMED~ AND BY THESE PRESENTS~ DOES ~ANT~ IEN~ ENFEOFF~ RELEASE~ CONVEY AND CONFIRM~ UNTO THE SAID PARTtES OF ~E SAID PART- PART~ THEIR HEIRS AND ASSIGNS~ TAIN TRACT OF LAND SITUATE tN THE TOWNSHIP OF LOg/ER ~LEN~COUNTY OF CU~LAND AND ~NIA, MORE PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOW~ TO WiT: STAKE AT A CORHER CO~ON TO THE LANDS OF THE EBERLY~S ~ILLS CHURCH OF ~Di NO~ ARBERGER~ AND THE GRANTOR; THENCE ALONG SAID LANDS OF THE EUERLY~S MILLS CHURCH OF COD NORTH TEN (10) DEGREES WEST ONE HUNORED ?G~ITY-81X (:186) FEET TO A STAKE; SA/dE SOUTH EI GHTY-F4VE (85) DEGREES TWENTY-THR~E (2~) MINUTE8 WEST FORTY-ONE AND ONE-HUNOREDTHS (&1.2~) FEET TO A POINT IN THE M-lITE HILL-EBERLY~S MILLS ROAD; THENCE'~a~ ROAD AND LANDS NOW OR LATE OF BERTHA-GILBERT NORTH TWO (2) DEGREES FIFTEEN (1~) MIMJT~8 ONE HUNDRED FORTY-EIGHT ANO FIVE-TENTHS (1/+8.5) FEET TO A POINT~ THENCE BY THE SAME NCR1 FiVE (25) DEGREES EAST ONE HUNGRED THIRTY-FIVE AND THREE-TENTHS (1~5.~) FEET TO A POiNt; BY THE ROAD TO NEW CUMBGRLANO AND LANDS NOW OR LATE OF DA#IEL HART NORTH EIGHTY-ONE (81) TWENTY-FOUR (2G) MINUTES EAST ONE HUNDRED (100) FEET TO A PiN AT CORNER OF LANDS NOW OR BLISS; THENCE BY THE SAME SOUTH lWENTY-ONE (21) DEGREES FIFTY-FOUR (~/~) MINUTES EAST DRED NINETY AND FIFTEEN ONE-HUNDREDTHS (290.1~) FEET TO A STAKEi THENCE 0~ THE SAiW~ NORTi FOUR (6~) DEGREES THIRTY .(~0) MINUTEs EAST SEVENTY-THREE AND FOUR-TENTHS (?~.&) FEET TO , THENCE BY LAND8 NOW OR LATE OF SOUTH TWENTY-SIX (26) DEGREE8 TWENTY-SEVEN (S?) MINUTE8 NINETY-EIGHT AN~ SEVENTY-EIGHT ONE-HUNDREDTHS (98.78) FEET TO A 8TAKE AT LINE OF LANDS LATE OF MARY MARBERGER; THENCE BY THE SAME SOUTH SIXTY-THREE (63) DEGREES THIRTY (~0)Mit WEST THREE HUNDRED SEVENTEEN (317) FEET TO A STARE~ THE POINT OR PLACE OF BEGINNING. CONTAINING TWO AND ONE-TENTH (2.1) ACRES. HAVING THEREON ERECTED A SINGLE FRAME DWELLING HOUSE. . DEING PN~T OF THE PREMISES WHICH JACOB C. HART AND MARTHA HART, HIS WIFE, BY DEED 16TH DAY OF MARCH~ 1917, AND RECORGED IN THE CUMBERLAND COUNTY RECGRDER~S OFFICE IN DEED "P", VOL. S, PAGE ~3~ GRAN'i'EO AND CONVEYED UNTO ELMIRA V. HART. THE SAID ELMIRA V. HAR BEING SEIZED IN FEE OF SA*ID PREMISES~ DIED~ TESTATE, ON THE DAY OF , 1~ PREVIOUSLY MADE HER LAST WILL AND TESTAMENT, DATED APRIL 15TH~ 1921, AND SINCE HER DEATH PROBATED BEFORE THE REGISTER OF WILLS OF CUMBERLAND COUNTy~ WHEREIN SHE DEVISED SAID PROP TO HER SROTHER~ JACOB C. HART~ FOR LIFE, WITH REMAINDER OF EDWARD Lo HART. THE SAID ED~A; HAR% THE SAIU EDWARD L, HART BEING THE SON OF JACOB C. HART AND BEING THE GRANTOR HEREIN WAS KNOWN AND CALLEO BY HIS AUNT~ THE SAiD ELMIRA V. HART~ BY T~E GIVEN NAME E~ARD. TOGETHER WITH ALL AND SINGULAR THE TENEMENTS, HEREDIT~EHTS AND APPURTENANCES TO B£LONGIN% GR IN ANYWISE APPERTAINING, AND THE REVERSION AND REVERSIONS, REMAINDER AND ERS, RENTS, ISSUES AND PROFITS THEREOF: AND ALSO, ALL THE ESTATE,RIGHT, TITLE, INTEREST, PEATY, CLAIM AND DEMAND WHATSOEVER~ BOTH IN LAW AND EQUITY~ OF THE SAID PARTY OF THE FIRS1 OF~ IN~ TO OR OUT OF THE SAI~ PREMISES, AND EVERY PART AND PARCEL THEREOF, r ' TO HAVE AND TO HOLD THE SAID PREMISES~ WITH ALL AND SINGULAR THE APPURTENANCES~ UNTO SAID PARTIES OF THE SECOND PART. THEIR HEIRS AND ASSIGN.% TO AND FOR THE ONLY PROPER USE IIOOF OF THE SAID PARTIES OF THE SECOND PART~ THEIR HEIRS AND ASSIGNS FOREVER. AND THE SAID P~RTY OF THE FIRST PART~ FOR HIMSELF, HIS HEIRS~ EXECUTORS AND ADMINISTR DOES~ BY THESE PRESENTS~ COVENANT~ GRANT ANd AGREE TO AND WITH THE SAID PARTIES OF'THE,S~C PART, THEIR HEIRS AND ASSIGNS, THAT HE, THE SAID PARTY OF THE FIRST PART, AND HIS H~t~r AND SINGULAR THE HEREDITAMENTS AND PREMISES HEREINABOVE DESCRIBED AND ~RANTEO OR M~NTIONEO INTENDED SO TO BW, WITH THE APPURTENANCES, UNTO THE SAID PARTIES OF THE SECONO.PART,~THE~R ANO ASGIGNS~ AGAINST THE SAID PARTY OF THE FIRST PART, AND HIS HEIRs AND AGAINST ALL AND E OTHER PERSON OR PERSONS WHOMSOEVER LAWFULLY CLAIMING CLAIMING OR TO CLAIM THE SAME GR ~Ny · H~REOF, SHALL AND WILL BY THESE PRESENTS~ WARRANT AND FOREVER DEFEND, IN WITNESS WHEREOF~ THE SAID PARTY OF THE FIRST PART HAS HEREUNTO SET HIS HAND AND SE, THE DAY AND YEAR FIRST ABOVE WRITTEN, SIGNED, SEALED AND DELIVEREO IN THE PRESENCE OF WM. H. GRAHAbl HARRy L. HART EDWARD L, HART STATE OF PENNSYLVANIA ISS. 'Ir: COUNTY OF CUMBERLAND ON THIS, THE 19TH DAY OF JUNE, 10~.8~ BEFORE ME~ THE UNDERSIGNED OFFICER~ PERSONALLy"A! ED HARRY Lo HART, ALSO KNOWN AS EDWARD L. HART, KNOWN TO ME (OR SATISFACTORILy PROVEN) TO ~ PERSON WHOSE NAME IS SUDSCRISEO TO THE WITHIN INSTRUMENT~ AND ACKNOWLEDGED THAT HE EXECUTE[ SAME FOR ~HE PURPOSES THEREIN CONTAINED. IN WITNESS WHEREOF~ I HEREUNTO SET MY HAND ANO OFFICIAL SEAL* WM. H~'GRAHAM M~ C(:~M. EXP?AT THE END 0 NEX'T,,SESS~,g~ OF SENATE. J,I-Z4-ZOOZ 01:01~ Fr~lllEl~ ABST~CT ~'Z4~" 3~10 Tq~l P.OSZ~D~ Fqfl JuI-Z4-ZOOZ O~:Ol~ Frm-PREMIER ABSTRACT +Z43 flllO T-O~I P.Ofl/Ofl F-III ~te t~.e mntd ~'mtd~. It,r bol~, .ad ,saLins. op:Lut ~ ,sf.d 8~.mte~g. ~d qed~t ev,q.oth~ tm'), ired IiV~L2~ Il. ~. ut' ,t,h,,, Bore, u&z c~ EBERLY'S MILL CHURCH OF GOD, Plaintiff vs. JAMES TURBAN, Defendant IN THE COURT OF coMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVAMIA CIVIL ACTION AT LAW NO. 02-3660 JURY TRIAL DEMANDED P~RAECIPE FOR LIS PENDENS To the Prothonotary: Please index the above-captioned action of ejectment as a lis pendens against the following real property: One Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania, 17011 I hereby certify that this action affects title to or othez interest in the above-described real property. ~a'ry A. Etter Dissingez Attorney for Plaintiff Supreme Court ID ~ 27736 28 North Thirty-second Street Camp Hill, PA 17011 (717) 975-2840 Date: Lawrence B. Abrams, Esquire Attorney I.D. No. 18028 Thomas A. French, Esquire Attorney I.D. No. 39305 RHOADS & S1NON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant EBERLY'S MILL CHURCH OF GOD, Plaintiff Defendant Vo JAMES TURBAN : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION LAW : NO. 02-3660 : JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO: THEPROTHONOTARY Kindly enter the appearance of Lawrence B. Abrams, Thomas A. French and Rhoads & Sinon LLP on behalf of Defendant in the above-captioned matter. Dated: September 3, 2002 {A~OADS & SINON LLP Lawrence B. Abrams One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant 441533.1 CERTIFICATE OF SERVICE I hereby certify that on this ~l day of~~_, 2002, a true and correct copy of the foregoing Entry of Appearance was served by means of United States mail, first class, postage prepaid, upon the following: Mary A. Etter Dissinger, Esquire Dissinger and Dissinger 28 North 32nd Street Camp Hill, PA 17011 Lawrence B. Abrams, Esquire Attorney I.D. No. 18028 Thomas A. French, Esquire Attorney I.D. No. 39305 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant EBERLY'S MILL CHURCH OF GOD, Plaintiff JAMES TURBAN, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION LAW : NO. 02-3660 : : : JURY TRIAL DEMANDED 441534.1 NOTICE TO PLEAD TO: Eberly's Mill Church of God c/o Mary A. Etter Dissinger, Esquire Dissinger and Dissinger 28 North 32na Street Camp Hill, PA 17011 You are hereby notified to file a written response to the enclosed New Matter and Counterclaim within twenty (20) days from service hereof or a default judgment may be entered against you. Dated: September 3, 2002 Lawrence B. Abrams One South Market Square Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Lawrence B. Abrams, Esquire Attorney I.D. No. 18028 Thomas A. French, Esquire Attorney I.D. No. 39305 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant EBERLY'S MILL CHURCH OF GOD, Plaintiff V. JAMES TURBAN Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION LAW : NO. 02-3660 . : . : JURY TRIAL DEMANDED ANSWER, NEW MATTER AND COUNTERCLAIM NOW COMES, Defendant, James H. Turban, by his attorneys, Rhoads & Sinon LLP, and files the within Answer, New Matter and Counterclaim as follows: 1. Denied as stated. It is denied that Plaintiff's principal address is 113 Creek Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Denied. It is denied that Plaintiff has legal title to 115 Creek Road by virtue of Deed dated August 1, 1994 and recorded in Cumberland County Recorder of Deeds office in Book 109, Page 812. To the contrary, the deed cited applies only to 113 Creek Road and Lot 2 (the "West Lawn"), reference to Plaintiff's Exhibit "A" being made. By way of further answer, 441875.1 the averments of paragraph 2 of Plaintiff's complaint constitute conclusions of law and strict proof thereof is demanded at time of trial. 3. Admitted. 4. Denied. The avemxents contained in paragraph 4 constitute conclusions of law to which no response is required and the same are denied. Strict proof thereof is demanded at time of trial. Denied as stated. It is admitted that Defendant installed a pond, garden and 8. Admitted. 9. Denied as stated. Due to the extent of certain fire damage to the entire inside of Defendant's dwelling house and the lack of any other accessible appropriate location by a door near the Defendant's house, Defendant allowed his contractor to temporarily locate a storage gazebo on his residential back yard Lot 3A behind his dwelling house on Lot 1 (see Plaintiff's Exhibit "A") on his own residential land. It is specifically denied that Defendant "intentionally drained" water from his pond "by use of a garden hose" onto Plaintiff' s adjacent land. 6. Denied. It is specifically denied that Defendant's contractors caused damage to PlalntiWs parking lot. By way of further answer, PlalntiWs representative in a meeting then with Defendant's contractor previously agreed that the contractors caused n_9_o damage to the Plaintiff' s parking lot in or about July, 2000. 7. Denied as stated. It is admitted that Defendant created a rock garden type flowerbed on the comer of Plaintiff's property along the sidewalk at the base of a large shade tree inside (east of) the driveway next to Defendant's dwelling house. container or a small dumpster and a Port-a-John on the lawn east of the Hart Driveway for which Defendant offered to pay rent to Plaintiff and two of which are no longer there and the Port-a- John is off of Plaintiff's property. It is specifically denied that the entire affected lawn is a comer of Plaintiff' s land and strict proof thereof is demanded at time of trial. 10. Admitted. 11. Denied as stated. It is admitted that such a trailer is on the lawn close to the Defendant's house for which Defendant had offered to pay rent. It is to be removed when Defendant's furniture can be moved back into the house now estimated on or about October 15, 2002. It is specifically denied that it is on Plaintiff's land and strict proof thereof is demanded at time of trial. 12. Admitted. 13. Denied. It is specifically denied that Defendant has and continues to willfully and defiantly block the driveway from Plaintiff's property. By way of further answer, Defendant, an electrician certified in all HVAC equipment repair, was lawfully parking the van which he was required by his employer to drive to service customers and his other vehicles under a written recorded Right of Way Agreement, a copy of which is attached hereto as Defendant's Exhibit 14. Admitted. 15. Denied. Defendant enjoys a friendly, cordial friendship with Plaintiff's tenant. Thus, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 15 and the same are denied. Proof, thereof, if relevant, is demanded at time of trial. 16. Denied as stated. It is admitted that the firemen and later others removed portions of Plaintiff's fence to allow them emergency access to the rear of Defendant's house to fight the fire, secure the damaged house and repair it following a severe residential fire at Defendant's house. It is specifically denied that the Plaintiff's fence was erected 2½ feet inside Plaintiff's property line and strict proof thereof is demanded at time of trial. 17. Denied as stated. It is admitted that Defendant has attached a section of his plastic fence to the wooden fence post. It is specifically denied that the fence post is on Plaintiff's property and strict proof thereof is demanded at time of trial. 18. Denied. The averments of paragraph 18 constitute conclusions of law to which no response is required and the same are denied. Strict proof thereof is demanded at time of trial. WHEREFORE, Defendant demands judgment in his favor and against Plaintiff, for an award of costs, and that Plaintiff's Complaint in Trespass be dismissed, with prejudice. EJECTMENT 19. Defendant incorporates by reference his answers to paragraphs 1 through 18 as though set forth here at length. 20. Admitted. 21. Denied. It is specifically denied that 113 and 115 Creek Road are on the same deed. By way of further answer, Plaintiff has confused the legal description of Hart Lots 2 and 3 4 conveyed to Plaintiff's Trustees by the Martha Mowery Estate and the addresses of the Tenant's house and the West Lawn. Plaintiff's title to its Original Church Lot at 115 Creek Road is not "on the same deed" with the Plaintiff's tenant's residence at 113 Creek Road. 22. Denied. It is specifically denied that Plaintiff has the right to immediate exclusive possession. In the respect complained of, Plaintiff's deed is expressly subject to Defendant's user as it recites: ... and under and subject to all Right of Ways and Easements of recorded (sic), including, but not limited to the Right of Way Agreement dated June 29, 1994 ... said Agreement being recorded on July 18, 1994 in the Cumberland County Recorder of Deeds Office in Miscellaneous Book 478 at Page 142 (the "Right of Way Agreement"). A copy of which is attached as Defendant's Exhibit "A" for the convenient reference of the Court. Thus, Defendant's permissive use of all lawn areas about which Plaintiff complains is implied or set forth in the aforesaid recorded Right of Way Agreement, a written document which Plaintiff failed to plead. By way of further answer, the averments contained in paragraph 22 of Plaintiff's complaint constitute conclusions of law and strict proof thereof is demanded at time of trial. 23. Denied. It is specifically denied that Defendant has unlawfully entered on Plaintiff's real property and without right or authority of law ousted Plaintiff therefrom. To the contrary, Defendant's usage has been within all of the legal, express, implied and intended rights of shared user implied in Defendant's deed, set forth in the Right of Way Agreement or prescriptively arising from open, notorious and hostile use for a period in excess of 21 years under the common law of Pennsylvania. By way of further answer, the averments contained in paragraph 23 of Plaintiff's complaint constitute conclusions of law and strict proof thereof is demanded at time of trial. averments contained in 24. Denied as stated. By way of further answer, the paragraphs 13 through 18 above are incorporated herein by reference. 25. Denied as stated. It is specifically denied that Defendant has placed various vehicles on Plaintiff's property. By way of further answer, Defendant parks within his Right of Way Agreement rights hereinabove described. 26. Denied as stated. By way of further answer, the averments contained in paragraphs 13 through 18, 22 and 23 above are incorporated herein by reference. 27. Denied. It is specifically denied that Defendant withholds the possession of the above-described real property without right and claim and that Defendant has caused damage to the Plaintiff for unlawful detention. Defendant's usage is within the terms of the Right of Way Agreement and his other legal rights. By way of further answer, the averments of paragraph 27 of Plaintiff' s complaint constitute conclusions of law and strict proof thereof is demanded at time of trial. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff, for an award of costs, and that Plaintiff' s Complaint in Ejectment be dismissed, with prejudice. NEW MATTER 28. Defendant incorporates by reference his answers to paragraphs I through 27 above as though set forth here at length. 29. Since the early 1940s, the Hart family had lived at 113 Creek Road and owned land to the north and east of Plaintiff's church at 115 Creek Road, Lower Allen Township, Cumberland County, Pennsylvania ("Plaintiff's Original Lot"). A long curved driveway served the Hart premises at 113 Creek Road from Cedar Cliff Drive (the "Hart Driveway"). The Hart Driveway did not extend to the Plaintiff's Original Lot which has its own driveway down to Creek Road. In October, 1965, Cora E. Hart, the Defendant's remote predecessor in title, 30. subdivided her property into Lots 1, 2 and 3 by filing a 2.14- acre subdivision plan at Cumberland County Plan Book 17 at Page 22 to accommodate her two (2) daughters' desires to move a second residence onto the Hart property. Thus, a flag shaped Lot 1 was created on the east side of the Hart Driveway and shared a stone driveway area of the Hart property at 113 Creek Road (the "Hart Original Property"). Thus, Defendant's 2½ story frame residence then accommodated Mary L. Baer and her family very close to the Hart Driveway, the house to be numbered 1 Cedar Cliff Drive while the other daughter and Mrs. Cora Hart continued to reside in the Hart Original Property. 31. In December, 1966, Cora E. Hart deeded Lot 1 to her daughter Mary L. Baer and Wayne L. Baer, her husband, who raised their family there and continued to reside there for thirty-five (35) years using the entire lawn (30±') to the east of the Hart Driveway as their own (the "East Lawn"). Defendant's predecessor in title used, maintained and mowed the East Lawn during the entire 35 years while at least three substantial trees grew up in the East Lawn. 32. When Mrs. Cora Hart died, her real estate was divided among her children so that a new vacant Lot 3A was created (Plan Book 27 at Page 27) behind Mary L. Baer's house which was conveyed to Mary and Wayne by Decree dated March 23, 1976 and confirmed by deed while her sister, Martha E. Mowery, received Lot I containing the original Hart house at 113 Creek Road in which she continued to live and a vacant Lot 2 (the "West Lawn") fronting on Cedar Cliff Drive. See Plaintiff's Exhibit "B." 33. Like the swimming pool and fence which the Baers erected on Lot 3A, all of the flowerbed improvements about which Plaintiff complains on the East Lawn on Defendant's side of the Hart Driveway would have been acceptable complimentary uses while Cora Hart lived and during the fifty (50) years when the properties were owned and used by Hart family members. Mary L. Baer died on November 17, 1979. 34. Almost twenty (20) years later, Mary L. Baer's sister, Martha E. Mowery, died on June 29, 1994. In negotiations with Plaintiff over sale of her house at 113 Creek Road to it, Mrs. Mowery's Estate presented her sister's widower, Wayne L. Baer, then the surviving owner of Lot with the limited Right of Way Agreement dealing only with driveway access and parking over the Hart Driveway and stone drive which he signed, confirming each party's bare rights of vehicular access over the existing driveway and of parking their vehicles in the parking area on the parties' mutual Hart Driveway and stone drive area. See Defendant's Exhibit "A." The Agreement did not purport to affect any other rights of the parties and, in fact, included an additional clause preserving paper rights of way. 35. Later, in August, 1994, Plaintiff did purchase Lots 2 and 3 from the Estate of Martha Mowery and began renting 113 Creek Road to tenants. Plaintiff's deed recites: ... "under and subject to all Right of Ways and Easements of record, including, but not limited to the Right of Way Agreement dated June 29, 1994 .... " 36. The Right of Way Agreement extends no benefit to the Original Church Property. Nevertheless, without Mr. Baer's written pemfission of record, Plaintiff paved over the entire stone drive and the rear part of the yard behind the "Stone Drive" and connected the Hart Driveway to its commercial sized parking lot by paving and began using the Hart Driveway as Church access, without the written, recorded consent or permission of Defendant's predecessor in title or Defendant. 37. Defendant purchased Lots I and 3A from Wayne L. Baer, a widower, on or about May 25, 2000, Deed Book 222 at Page 517, thereby succeeding to all the rights, express and implied of Wayne L. Baer and Mary L. Baer, his wife, under their deeds and also to those minimal Hart Driveway rights set forth in the Right of Way Agreement. 38. Defendant has been fighting debilitating severe depression for several years since his wife died (10 days before he purchased Lots 1 and 3A) and uses, in part, his ability to maintain his pool, garden and improve his real estate as a kind of physical and emotional therapy for his children and him. 39. Defendant complained to the Plaintiff about its paving the yard behind the "Stone Drive," and thereby connecting the Hart Driveway to the Original Church lot behind the Original Hart Property without Defendant's written permission for it to enlarge the Hart driveway easement and right of way. 40. Defendant also complained of Plaintiff's use of the Hart Driveway as a relatively busy and high speed access from Cedar Cliff Drive to the Church. 41. Plaintiff began being aware of Plaintiffs Property Committee members and others watching the improvements he was making to his hackyard from the Church parking lot. Given that Sunday morning was a time of relaxation for his use of his backyard, Defendant felt constrained to erect a privacy fence along the mutual boundary line with the Plaintiffs parking lot which he tore down this Spring during the mediation proceedings hereinafter described. 42. In or about October, 2001, without any apparent survey, Plaintiff's Property Committee spray painted a white paint line across the East Lawn which Defendant had used as his front yard entrance to his house within eleven (11) yards of Defendant's house between his house and the Hart Driveway and across the rock garden, his sidewalk along what Plaintiffs committee apparently believed to be two and one-half (2½) feet inside the property line of the flag lot created by Cora Hart in 1966. Defendant objected in writing to Plaintiff and informed the police of Plaintiffs 43. trespass. 44. Defendant became hospitalized for three (3) weeks for severe depression undoubtedly aggravated by the Plaintiff's Property Committee's invasive behavior. 45. Later, on or about November 26, 2001, again without any apparent survey, Plaintiff's Property Committee or other representatives dug post holes and erected a six (6) foot two (2) inch high solid wood fence on or near the white line within eleven (11) yards of the Defendant's dwelling house through the East Lawn on Defendant's side of the Hart Driveway, through the rock garden, across the sidewalk to the comer and out to a few feet from the 10 driveway on what the Plaintiff's Property Committee or other representatives apparently believed to be two and one-half (2½) feet inside the property line. 46. Defendant protested the private invasion and the Plaintiff's intentional indignity to him and his family and suffered loss of all his direct access rights implied and set forth in the Right of Way Agreement to the driveway, his vehicles and, for his children, of the sidewalk to their parent's vehicles and to school buses. 47. Plaintiff and Defendant participated in Lower Allen Township's "neighborhood mediation" wherein the parties agreed to resolve the dispute by their adjusting their mutual property lines to conform to the apparent line along the Hart driveway by their swapping approximately equal amounts of land, eleven (11) feet of Defendant's back yard land along the boundary of Lot 3A and the Plaintiff's parking lot for all the yard comprising the East Lawn on the east side of the Hart Driveway; the Right of Way Agreement was to remain in force; the PlaintiWs fence would be entirely removed and Plaintiff agreed to stop its use of the Hart Driveway for access to the Church parking lot, the parties "shook hands" on it and signed it (the "Swap Agreement"). Defendant has mislaid his copy; however he intends to continue to look for it and pursue obtaining a copy through the disclosure process and will present it to the Court when found. Defendant removed his privacy fence, then relocated and planted and mulched a 48. substantial stand of arborvitae and other shrubbery back eleven (11) feet from his Lot 3A boundary line (165') in the Spring of 2002 in reliance on the Swap Agreement. 11 49. By its Complaint, Plaintiff is apparently attempting to disavow the Swap Agreement upon which Defendant had already acted. No other official communication to that effect was ever received by Defendant from Plaintiff. 50. Earlier, in 1996, Defendant had received a medical diagnosis that he has multiple sclerosis from his doctors at PA Neurological Associates. In the fall of 2002, as a result of the symptomatic depression and the disease, he lost his job in which he, as an HVAC electrician, was required to drive a repair van to make calls on customers. 51. On the day after Christmas, December 26, 2001, the Defendant and his family suffered a devastating fire to his 2½ story home at 1 Cedar Cliff Drive. 52. Despite the obstacle of the Plaintiff's fence blocking access to the house, the firemen were able to save some of the house, but the center core of the house was lost. Absent the confusion and obstacle of the Plaintiff's fence, use of Defendant's house and Defendant's pets might have been saved by the rapidly responding firemen. Defendant and his family had to move out of the house and had also to move and securely store their exposed, remaining furniture and furnishings in the complained of"on site" trailer. 53. Discovering that the firemen had removed two (2) sections of its fence to successfully fight the devastating fire, Plaintiff's representatives promptly nailed the sections back into place within two weeks of the fire. 54. Defendant hired contractors to remove the damage and reconstruct the burned core portions of his residence at 1 Cedar Cliff Drive. The contractors located the dumpster as 12 close to the work site as possible which meant tearing down Plaintiff's fence in places, so that the contractors could get access into the side and back of the house. 55. Defendant, his family, the firemen and his contractors have all been slowed, obstructed and hindered by the unnecessary, unsightly presence of Plaintiff's fence which hinders Defendant's access to his premises and serves no purpose to Plaintiff. 56. PlaintiWs erection and maintenance of a the fence is a trespass over Defendant's implied easement of residential user over the East Lawn created by Cora Hart in 1966 when she created the flag shaped Lot 1 for her daughter and her family on the east side of the Hart Driveway, which was intended by her for any and ail future owners of the lot. 57. PlaintiWs erection and maintenance of its fence is a trespass over Defendant's implied fight of pedestrian access from his house to the Hart Driveway and breaches his express, written Right of Way Agreement for access over the Hart Driveway and stone drive parking area and the East Lawn and sidewalk as shown on the Plan attached to the Complaint and attached as Defendant's Exhibit "B" hereto. 58. PlaintiWs Complaint fails to state a claim upon which relief may be granted in that the title presented is not to PlaintiWs Original Church Lot and Plaintiff failed to attach the written recorded Right of Way Agreement to the Complaint. 59. PlaintiWs claims are barred by the doctrine of easement by prescription in that Defendant's predecessors used the East Lawn exclusively, openly and notoriously for a period in excess of 21 years from Cora Hart's death on or about June 10, 1974. 13 60. above stated. Plaintiff's claims are barred by the doctrine of adverse possession for reasons 61. Plaintiff's claims are barred by the doctrine of necessity in that no other access to the Stone Drive is available to Defendant. 62. Plaintiff's claims are barred by estoppel, waiver and/or laches in that the exact same situation existed as to the East Lawn for over 50 years. PlaintiWs claims are barred by promissory estoppel. its Right of Way Agreement and its Swap 63. 64. Plaintiff's claims are barred by Agreement with the Defendant. 65. 66. Plaintiff has failed to mitigate its damages, if any. Given the fire and the insignificantly temporary nature of Defendant's trespass, if any, Plaintiff's conduct in commencing and continuing this litigation is arbitrary, vexatious and in bad faith, justifying an award of attorney's fees to Defendant pursuant to 42 Pa. C.S.A. §2503. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff, for an award of costs and attorneys fees, and for damages in an amount less than the jurisdictional amount for compulsory arbitration and such other relief as is appropriate 14 COUNTERCLAIM COUNT I Trespass 67. Defendant incorporates by reference paragraphs 1 through 66 above as though set forth here at length. 68. Defendant has been damaged by Plaintiff's breach of the parties' expectations under the historic, recorded deeds, subdivision plans and the Right of Way Agreement and has incurred losses to his property over and above what otherwise would have been lost by Plaintiff's actions and continues to incur embarrassment, inconvenience and hardship as a result of Plaintiff's enlargement of the Hart Driveway Right of Way and by Plaintiff's fence. WHEREFORE, Defendant demands judgment against Plaintiff, in an amount which falls below the jurisdictional amount for compulsory arbitration, together with costs and attorney's fees and for such other relief as is appropriate. COUNT II Breach of Contract 69. Defendant incorporates by reference paragraphs 1 through 68 above as though set forth herein at length. 70. The parties previously had reached agreement on a resolution of this matter at neighborhood mediation which became the Swap Agreement, as more specifically set forth above. 15 71. Pursuant to that agreement the Defendant was to deed over a portion of his property in retum for Plaintiff's deeding over a portion of its property and for PlaintifFs agreement to stop using the Hart Driveway for access to the Church parking lot, ail as is set forth in averment 47 above and Defendant's Exhibit "C" hereto, reference thereto to being had, as more specificaily appears. 72. Defendant relocated and moved his back yard shrubbery to fulfill his part of the Swap Agreement. 73. Plaintiff apparently is attempting to disavow its agreement upon which Defendant had already acted and performed. 74. Defendant reasonably relied upon the terms of the settlement reached with Plaintiff. 75. Defendant has been damaged by Plaintiff s breach of its agreement. 76. Defendant is entitled to specific enforcement of the Swap Agreement. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff, ordering Plaintiff to execute a deed to Defendant in accordance with the Swap Agreement COUNT III Nuisance 77. Defendant incorporates the averments of paragraphs 1 though 76 above as though set forth here at length. 78. The Plaintiff's enlargement of the Hart Driveway to its private parking lot on the original church property and its erection and maintenance of the Plaintiff's fence constitutes 16 private nuisance against Defendant and his family which has caused them embarrassment, loss of property, indignity, loss of legal access and use of the East Lawn intended by Cora E. Hart for her family and loss of use of their rights under the Right of Way Agreement 79. Defendant has been damaged as a result of such action. WHEREFORE, Defendant demands judgment against the Plaintiff requiring it to eliminate the driveway paving connection entirely from Lot 3 and remove the fence or alternatively, at least, reduce the height of its fence to 3 feet, award Defendant his fees and costs and for such other relief as is appropriate. COUNT IV Equity 80. Defendant incorporates the averments of paragraphs 1 through 79 above as though set forth here at length. 81. From the moment it denied the Plaintiff the right to use their private driveway as a through road to the Plaintiff's parking lot, Defendant has been subjected to various acts of annoyance, threats and disturbances by persons associated with the Plaintiff. 82. Defendant enlarged the driveway Right of Way without permission from Defendant's predecessors in title to the Defendant's detainment and annoyance. 83. On or about November 26, 2001, Plaintiff erected a six (6) foot two (2) inch high solid wood fence in the East Lawn as has been previously averred less than thirty-two (32) feet from Defendant's house thereby, to a great extent isolating Defendant's home from its parking 17 area which fence was erected without cause and is being maintained by the Plaintiffs solely for the purpose of annoyance to Defendant and is a private nuisance under law. WHEREFORE, in equity, Defendant requests the Court to enjoin Plaintiff to remove the driveway to its parking lot from Lot 3 and to entirely remove the existing fence, or in the alternative, decrease its height to 3 feet on or about the East Lawn together with an award of costs and attorney's fees, and such other relief as deemed appropriate. Dated: ~ ' ~ | RH. ODiINON LLP Lawrence B. Abrams Thomas A. French One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant 18 RIGHT-OF-WAY AGREEMENT THIS RIGHT-OF-WAY AGREEMENT is made this ~. day of /~.~.~ , 1994 by and between EDWARD E. MOWERY and ~ARLES W. MOWERY., Executors of the Estate of Martha E. Mowery and WAYNE BAER; WITNESSETH: WHEREAS, the Estate of Martha E. Mowery is the record owners of two (2) lots of land located in Lower Allen Township, Cumberland County, Pennsylvania, being lots no. 2 & 3 on the subdivigion plan for the Cora E. Hart Estate recorded in Plan Book 27, Page 27 of the Recorder of Deeds of Cumberland County. Title to the lots is vested in'said Martha E. Mowery as of Decree of the Orphans Court dated March 23, 1976, Cumberland County No. 21-74-410. Said Martha Mowery died on November 14, 1993 and Edward E. Mowery and Charles W. Mowery were appointed Co-Executors pursuant to Grant of Letters .Testamentary by the Court of Common Pleas of Cumberland County, Estate No. 21-9~-975. WIIEREAS, Wayne Beer is the record owner of two (2) adjoining lots to the land of the Estate of Martha E. Mowery being lots 1 & 3a of the subdivision plan for Cora E. Hart Estate, recorded in Plan Book 27, Page 27 of the Recorder of Deeds of York County. Title to Lot 1 was vested in Mary L. Baer and Wayne Beer pursuant to Deed recorded in Deed Book F22, Page 119 of the Recorder of Deeds of Cumberland County, Title to Lot 3a was vested in Mary b. and Wayne Beer pursuant to Deed recorded in Deed Book B 28, Page 725. Said Mary L. 150~ 478 J.4Z. Exhibit "A" Baer died on November ~7, ~979 vesting her interest by right of survl¥orship into her husband, Wayne Baer. WHEREAS, the parties desire to formalize their right and the rights of their successors in title to utilize the stone drive and parking area visible on the ground and designated on the survey of Michael C. D'Angelo dated April 22, 1994 and attached hereto as Exhibit "A", which drive and parking area travels lots 1,2, and 3. NOW THEREFORE, the parties, intending to be legally bound, do agree as follows: 1. The Estate of Martha E. Mowery, on its own behalf md on behalf of its heirs, successors and assigns, does hereby grant and convey to_Wayne Beer, on behalf of and for the benefit of his heirs, successors and assigns, and Wayne Beer on his own behalf and on'behalf of his heirs, successors and assigns, does hereby convey and convey to the Estate of Martha E. Mowery, on its behalf and for the benefit of its successors and assigns, the unres~ricted right to use the stone drive and parking area as illustrated on the attached survey of Michael c. D'Angelo for ingress, egress and regress for all times and purposes in common with each other, their successors and assigns over the existing driveway visible on ground and extending from the Township Road known as Cedar Cliff Drive through the lands of both the Estate of Martha C. Mowery and Wayne Beer. ~ oo~ 478 ~c[ 143 2. The parties using said right-of-way to share equally the cost of the reasonable maintenance thereof. 3. Notwithstanding this Agreement, the parties hereto agree that the 20'foot right-of-way and 15 foot right-of-way as designated on the April 22, 1994 survey of Michael C. D,Angelo, revised June 13, 1994, continue in full force and effect, for the benefit of all parties herein. 4. This Agreement shall be binding upon the parties hereto, their heirs, successors and assigns. In witness whereof, intending to be legally bound, the parties hereto do set their hands and seals the year and date first above written. ESTATE OF MARTHA E. MOWERY WITNESS: CHARLES- W. MOWERY, ~_~cutor EDWARD E. MOWERY,/~ecutor 478 .I. 44. DMMONWEALTH OF PENNSYLVANIA ) ) ss. DUNTY OF CUMBERLAND ) 'On this 29th day of June 1994, before me, a Notary ublic, the undersigned officer, personally appeared Charles . Mowery and Edward E. Mowery, Executors of the Estate of artha E. Mow~ry, known to me (or satisfactorily proven) to be he persons whosa names are subscribed to the within nstrum6n~, and acknowledged that'they executed the foregoing IGHT-OF-WAY AGREEMENT in the capacity therein stated and for he purposes therein contained. r L<,'. l,k~ I.;~II1~1~ ~ ~..~. ~ ' I!~t~ ',,~, ,,,~h.i..,-' , iUNTY OF CUMBERLAND ) On this 29th day of June 1994, before me, a Notary ~blic, the undersipned officer, personally appeared Wayne ~aer known to me (or satisfactorily proven) to be the person ,hose name is subscribed to the within instrument, and .cknowledged that he executed the foregoing RIGHT-OF-WAY ~GREEMENT in the capacity therein stated and for the purposes .herein contained. ~reunto set my. hand and official seal. Exhibit "B" VERIFICATION JAMES H. TURBAN deposes and says, subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing are true and correct to the best of his knowledge, information and belief. 442266.1 CERTIFICATE OF SERVICE I hereby certify that on this ~ day of ~t~//4~_, 2002, a tree and correct copy ! of the foregoing Answer, New Matter and Counterclaim was served by means of United States mail, first class, postage prepaid, upon the following: Mary A. Etter Dissinger, Esquire Dissinger and Dissinger 28 North 32nd Street Camp Hill, PA 17011 EBERLY'S MILL CHURCH OF GOD, Plaintiff vs. JAMES TURBAN, Defendant IN THE COURT OF COM~4ON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-3660 JURY TRIAL DEMANDED ANSWER TO NEW MATTER AND COUNTER-CLAIM AND NEW MATTER AND NOW COMES the Plaintiff, Eberly's Mill Church of God, by their attorney's, Dissinger and Dissinger, and files the following Answer and respectfully represents that: NEW MATTER 28. No answer is required. 29. DENIED. Plaintiff is without sufficient information to either admit or deny the allegations in paragraph number twenty-nine (29) and, therefore, said allegations are denied. 30. DENIED. Plaintiff is without sufficient information to either admit or deny the allegations in paragraph number thirty {30) and, therefore, said allegations are denied. 31. DENIED. Plaintiff is without sufficient information to either admit or deny the allegations in paragraph number thirty-one (31) and, therefore, said allegations are denied. 32. DENIED. Plaintiff is without sufficient information to either admit or deny the allegations in paragraph number thirty-two (32) and, therefore, said allegations are denied. 33. DENIED. Plaintiff is without sufficient information to either admit or deny the allegations in paragraph number thirty-three (33) and, therefore, said allegations are denied. 34. DENIED. Plaintiff is without sufficient information to either admit or deny the allegations in paragraph number thirty-four (34) and, therefore, said allegations are denied. 35. ADMITTED. 36. ADMITTED, in part, and DENIED, in part. It is admitted that the Right-of-way Agreement extends no benefit to the original Church Property. It is denied that Plaintiff paved over the entire Stone Drive and rear part of the yard behind the Stone Drive without Mr. Baer's written permission of record and connected the Hart driveway to its commercial size parking lot by paving and began using the Hart driveway as Church access without the written recorded consent or permission of Defendant's predecessor in title or Defendant. By way of further answer, said paved drive was installed prior to Defendant obtaining title to the property and the prior property owner had no objection to the paved drive which provided a benefit to Defendant's predecessor in title and which Plaintiff's installed without asking for any monetary contribution from Defendant's predecessor in title. 37. ADMITTED. 38. DENIED. Plaintiff is without sufficient information to either admit or deny the allegations of paragraph number thirty-eight (38) and, therefore, said allegations are denied. 39. DENIED. It is specifically denied that Defendant complained to the Plaintiff about his paving the yard behind the Stone Drive and thereby connecting the Hart driveway to the original Church lot behind the original Hart property without Defendant's written permission for it to enlarge the Hart driveway easement and right-of-way. By way of further answer, the connection of the Hart driveway to the original Church lot does not enlarge the Hart driveway easement and right-of-way. Rather, it simply provides an access from the original Church property to the rental home on 113 Creek Road, Camp Hill, Pennsylvania. By way of further answer, said paving of the yard behind the Stone Drive was done prior to Defendant obtaining title to the property at One Cedar Cliff Drive, Camp Hill, Pennsylvania. 40. DENIED. It is specifically denied that Defendant complained to Plaintiff's use of the Hart driveway as a relatively busy and high speed access from Cedar Cliff Drive to the Church. By way of further answer, Defendant never dealt with the Church's authoritative board in attempting to resolve any issues relating to this property dispute. 41. DENIED. Plaintiff is without sufficient information to either admit or deny the allegations of paragraph number forty (40) and, therefore, said allegations are denied. 42. DENIED, in part, and ADMITTED, in part. It is admitted that Plaintiff spray painted a white paint line across the east lawn which Defendant had used as his front yard entrance to his house. The remaining allegations of paragraph number forty-two (42) are specifically denied. By way of further answer, Plaintiff applied for a permit from the township for a privacy fence and said white paint lines were placed on the property to identify the pins for the township. A constable was present and all of the white paint lines were placed on Plaintiff's property. 43. ADMITTED. By way of further answer, Defendant obtained counsel to notify Plaintiff of Defendant's objections in correspondence dated November 07, 2001. 44. DENIED. Plaintiff is without sufficient information to either admit or deny the allegations of paragraph number forty-four (44) and, therefore, said allegations are denied. 45. ADMITTED, in part, and DENIED, in part. It is admitted that on or about November 26, 2001, Plaintiff dug post holes and erected a six (6) foot two (2) inch high solid wood fence on or near the white line through the east lawn, the rock garden, across the sidewalk to the corner and out a few feet from the driveway two and one-half (2 1/2) feet inside of Plaintiff's property line. All other allegations in paragraph forty-five (45) are denied specifically. By way of further answer, said fence was erected entirely on Plaintiff's property and in no way infringed on the property rights of Defendant. 46. DENIED. It is specifically denied that there was any "private invasion" or "intentional indignity" and it is denied that Defendant protested the alleged private invasion and the any alleged intentional indignity to Defendant and his family and suffered loss of all his direct access rights implied and set forth in the Right-of-way Agreement to the driveway, his vehicles and, for his children, of the sidewalk to their parents vehicles and to school buses. By way of further answer, Defendant has no direct access rights implied and set forth in the Right-of-way Agreement from his home through the east lawn to the driveway. By way of further answer, Defendant has ample room in front of his hom~ to access the driveway. 47. DENIED. It is specifically denied that Plaintiff and Defendant participated in Lower Allen Townships neighborhood mediation wherein the parties agreed to resolve the dispute by their adjusting their mutual property lines to conform to the apparent line along the Hart driveway by their swapping approximately equal amounts of land, eleven (11) feet of the Defendant's backyard land along the boundary of Lot 3A and the Plaintiff's parking lot for all the yard comprising the east lawn on the east side of the Hart driveway; the Right-of-way Agreement was to remain in enforce; the Plaintiff's fence would be entirely removed and the Plaintiff agreed to stop its use of the Hart driveway for access to the Church parking lot, the parties "shook hands" on it and signed it (the "Swap Agreement"). Plaintiff is without sufficient information to either admit or deny the remaining allegations in paragraph number forty-seven (47), and therefore same are denied. By way of further answer, Defendant participated in the neighborhood mediation program with the Church's Pastor, not the official Church board. The Pastor had no authority to bind the Church to an agreement and, in fact, the mediation contract specifically indicates that the terms were subject to the approval of the Church. The official Church board never gave such approval and thus, the neighborhood mediation contract does not reflect the agreement of the Plaintiff and is not legally binding. A copy of the Mediation Contract is attached hereto as Exhibit "A." 48. ADMITTED, in part, and DENIED, in part. It is admitted that Defendant removed his privacy fence, then relocated and planted and mulched a substantial stand of arbor vitae and other shrubbery back from his Lot 3 A boundary line in the spring of 2002. It is specifically denied that Defendant did this in reliance on the "Swap Agreement". 49. DENIED. It is specifically denied that by its Complaint, Plaintiff is apparently attempting to disavow the "Swap Agreement" upon which the Defendant had already acted. It is also specifically denied that no other official communication to that effect was ever received from Defendant from Plaintiff. By way of further answer, in late March or early April of 2001, representatives from the official Church board visited Defendant to inform him that there was no official approval of the "Swap Agreement" and that the Church board did not have the authority to buy, sell, or swap land. Upon hearing this, Defendant said, "meeting over," and insisted that the Church representatives leave. 50. DENIED. Plaintiff is without sufficient information to either admit or deny the remaining allegations in paragraph number fifty (50), and therefore same are denied. 51. ADMITTED. 52. ADMITTED, in part, and DENIED, in part. It is admitted that the firemen were able to save some of the house and that Defendant and his family had to move out of the house and had also to move and securely store their exposed remaining furniture and furnishings in the complained of "on-site" trailer. It is specifically denied that Plaintiff's fence blocked access to the house and that absent the confusion and obstacle of Plaintiff's fence, use of Defendant's house and Defendant's pets might have been saved by the rapidly responding firemen. By way of further answer, Defendant himself caused an obstacle to the firemen in that his vehicle blocked access of the fire trucks from the driveway going from the original Church property onto the Hart driveway. 53. ADMITTED. By way of further answer, the official Church board met and discussed the fact that parishioners were gawking at the burnt property and, for the safety of the churchgoers, the board voted to put the fence back up. 54. ADMITTED, in part, and DENIED, in part. It is admitted that Defendant hired contractors to remove the damage and reconstruct the burned core portions of his residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania. It is specifically denied that the contractors located the dumpster as close to the work site as possible, which meant tearing down Plaintiff's fence in places, so that the contractors could get access into the side and back of the house. By way of further answer, the dumpsters could have been placed closer to the work site by putting them on the side of Defendant's house or in the back of the house. 55. DENIED. It is specifically denied that Defendant, his family, the firemen, and his contractor's have all been slowed, obstructed, and hindered by the unnecessary, unsightly presence of Plaintiff's fence which hinders Defendant's access to his premises and serves no purpose to Plaintiff. By way of further answer, Defendant has ample room to access his premises from the front of his home rather than across Plaintiff's property (which Defendant refers to as the "East Lawn." 56. The allegations in paragraph number fifty-six (56) constitute a legal conclusion for which no answer is required. 57. The allegations in paragraph number fifty-seven (57) constitute a legal conclusion for which no answer is required. 58. The allegations in paragraph number fifty-eight (58) constitute a legal conclusion for which no answer is required. 59. The allegations in paragraph number fifty-nine (59) constitute a legal conclusion for which no answer is required. 60. The allegations in paragraph number sixty (60) constitute a legal conclusion for which no answer is required. 61. The allegations in paragraph number sixty-one (61) constitute a legal conclusion for which no answer is required. 62. The allegations in paragraph number sixty-two (62) constitute a legal conclusion for which no answer is required. 63. The allegations in paragraph number sixty-three (63) constitute a legal conclusion for which no answer is required. 64. The allegations in paragraph number sixty-four (64) constitute a legal conclusion for which no answer is required. 65. The allegations in paragraph number sixty-five (65) constitute a legal conclusion for which no answer is required. 66. The allegations in paragraph number sixty-six (66) constitute a legal conclusion for which no answer is required. WHEREFORE, Plaintiff's respectfully requests this Honorable Court to dismiss Defendant's New Matter and enter judgment in favor of Plaintiff for damages, costs, and attorneys' fees. COUNTER-CLAIM COUNT I Trespass 67. No answer is required. 68. DENIED. It is specifically denied that Defendant has been damaged by Plaintiff's breach of parties' expectations under the historic, recorded deeds, subdivision plans and the Right-of-way Agreement and has incurred losses to his property over and above what otherwise would have been lost by Plaintiff's actions and continues to incur embarrassment, inconvenience and hardship as a result of Plaintiff's enlargement of the Hart driveway right-of-way and by Plaintiff's fence. WHEREFORE, Plaintiff respectfully requests this Honorable Court to dismiss Defendant's counter-claim in trespass and enter judgment for the Plaintiff together with damages, costs, and attorneys' fees. COUNT II Breach of Contract 69. No answer is required. 70. DENIED. It is specifically denied that the parties previously had reached an agreement on a resolution of this matter at neighborhood mediation which became the "Swap Agreement" By way of further answer, Plaintiff never participated in the neighborhood mediation, rather, the Church's Pastor who had no official power to act on behalf of the Church, participated in the mediation. Plaintiff would have agreed to participate in the mediation, however, Defendant specifically excluded members of the board from the meeting and would only speak to the Pastor. 71. DENIED. It is specifically denied that pursuant to the agreement the Defendant was to deed over a portion of his property in return for Plaintiff deeding over a portion of its property and for Plaintiff's agreement to stop using the Hart driveway for access to the Church parking lot. By way of further answer, the official Church board with the authority to act on behalf of the Church never agreed to any provisions of the "Swap Agreement" and, further, the "Swap Agreement" specifically states that the terms were subject to the approval of the Church. Said approval was never given. (See Exhibit "A.") 72. DENIED. It is specifically denied that Defendant relocated and moved his back yard shrubbery to fulfill his Dart of the "Swap Agreement". 73. DENIED. It is specifically denied that Plaintiff apparently is attempting to disavow its agreement on which Defendant had already acted and performed. 74. DENIED. It is specifically denied that Defendant reasonably relied upon the terms of the settlement reached with the Plaintiff. By way of further answer, Plaintiff never approved the agreement and Defendant should not have relied on the terms until said approval of the Church was given, which he knew was a condition of the Mediation Contract. 75. DENIED. It is specifically denied that Plaintiff breached its agreement and that Defendant has been damaged by Plaintiff's breach of its agreement. 76. DENIED. It is specifically denied that Defendant is entitled to specific enforcement of the "Swap Agreement". WHEREFORE, Plaintiff respectfully requests this Honorable Court to dismiss Defendant's counter-claim in Breach of Coqtract and enter judgment for the Plaintiff together with damages, costs, and attorneys' fees. COUNT III Nuisance 77. No answer is required. 78. DENIED. It is specifically denied that the Plaintiff's enlargement of the Hart driveway to its private parking lot on the original Church property and its erection and maintenance of the Plaintiff's fence constitutes a private nuisance against Defendant and his family which has caused them embarrassment, loss of property, indignity, loss of legal access and use of the east lawn intended by Cora E. Hart for her family and loss of use of their rights under the Right-of- way Agreement. 79. DENIED. It is specifically denied that Defendant has been damaged as a result of such action. WHEREFORE, Plaintiff respectfully requests this Honorable Court to dismiss Defendant's counter-claim in Nuisance and enter judgment for the Plaintiff together with damages, costs, and attorneys' fees. COUNT IV Equity 80. No answer is required. 81. DENIED. It is specifically denied that from the moment Defendant denied the Plaintiff the right to use their private driveway as a through road to the Plaintiff's parking lot, Defendant has been subjected to various acts of annoyance, threats and disturbances by persons associated with the Plaintiff. 82. DENIED. It is specifically denied that Plaintiff enlarged the driveway right-of-way without permission from Defendant's predecessors in title and to the Defendant's detainment and annoyance. By way of further answer, no permission was necessary as the driveway extension is located entirely on Plaintiff's property and the driveway extension does not enlarge the right-of-way. 83. ADMITTED, in part, and DENIED, in part. It is admitted that on or about November 26, 2001, Plaintiff erected a six (6) foot two (2) inch high solid wood fence in the east lawn. It is specifically denied that said fence to a great extent isolates Defendant's home from his parking area, which fence was erected without cause and is being maintained by the Plaintiff solely for the purpose of annoyance to Defendant and is a private nuisance under the law. WHEREFORE, Defendant/Counter-Plaintiff respectfully requests this Honorable Court to dismiss Defendant's New Matter and Counter-claims and to enter judgment in favor of Plaintiff together with damages, costs, and attorneys' fees. NEW MATTER 84. Defendant's New Matter alleges that Plaintiff's claims are barred by the doctrines of easement by prescription and adverse possession. 85. In order to succeed on a claim for an easement by prescription and/or adverse possession, Defendant must prove that the use of the land was adverse, open, continuous, notorious and uninterrupted for twenty-one (21) years. 86. Defendant has failed to allege that the use of the land in question was adverse and, in fact, the use was not adverse as Plaintiff's and Defendant's predecessors in title were family members. WHEREFORE, Plaintiff respectfully requests this Honorable Court to dismiss Defendant's claims for an easement by prescription and adverse possession for failure to state a claim upon which relief can be granted. Respectfully Submitted: DISSINGER and DISSINGER Mary A. Etter Dissinger J~' Attorney for Plaintiff Supreme Court ID #27736 28 North Thirty-second Street Camp Hill, PA 17011 (717) 975-2840 VERI FIC~ATION I, Wayne Noss, verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification. Wayne No~s, Agent for: Eberly'sVMill Church of God EBERLY'S MILL CHURCH OF GOD, Plaintiff vs. JAMES TURBAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-3660 JURY TRIA~ DEMANDED CERTIFICATE OF SERVICE I, Karen L. Koenigsberg, do hereby certify that a copy of the foregoing Answer has been duly served upon the attorney for Defendant, James Turban, by depositing same in the United States Mail, postage prepaid, addressed as follows: Lawrence B. Abrams, III, Esquire Rhoads & Sinon, L.L.P Twelfth Floor One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 B~a~n-L .' ~oeni~e~g v~-- Attorney for Plaintiff Nane (s): Address: Phone: EXHIBIT SHERIFF'S RETURN - REGULAR CASE NO: 2002-03660 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND EBERLY'S MILL CHURCH OF GOD VS TURBAN JAMES JASON VIOP~AL Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon TURBAN JAMES the DEFENDANT at ONE CEDAR CLIFF DRIVE CAMP HILL, PA 17011 JAMES TURBAN at 1927:00 HOURS, on the 13th day of August , 2002 by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this ~22~ day of ~ ~2-~ A.D. So Answers: R. Thomas Kline 08/14/2002 DISSINGER & DISSINGER PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( x ) for JURY trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) ( ) Assumpsit (x) Trespass Eberly's Mill Church ( ) Trespass (Motor Vehicle) of GOd, ( x ) Ejectment (other) vs. (Plaintiff) James vs. Turban, (Defendant) The trial list will be called on and Trials commence on Pretrials will be held on (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214-1.) No. 02-366_0 Civil Act-ir)n a~- ]'.~w 19.2-002 Indicate the attorney who will try case for the party who files this praecipe: Mary A. Etter Dissinger Indicate trial counsel for other parties if known: Lawrence B. Abrams This case is ready for trial. Date: Print Name: Mary A. Etter Dissin~ger Attorney for: P_laJ,_n_tiff .............. Pl~ClPg FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted ii] duplicate) TO THEPROTHONOTARY OF CUMBERLAADCOUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. (~) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) ( Plaintiff ) ( Defendant ) VS. (check one) (~) Civil Action - Law ( ) Appeal from Arbitration ( ) (other) The trial list will be called on and Trials conmence on Pretrials will be held on (Briefs are due 5 days before pretrials. ) (The party listing this case for trial shal] provide fort]hwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1. ) Indicate the attorney who will try case for the party who files this praecipe: Indicate trial counsel for other parties if known: ~ ~ 4""ej~/9 '~. ~.~.~m3 This case is ready for trial. Date: Attorney for: EBERLY'S MILLS CHURCH OF GOD, Plaintiff VS. JAMES TURBAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3660 CIVIL CIVIL ACTION - LAW IN RE: NONJURY TRIAL ORDER AND NOW, this 5''* day of December, 2002, a pretrial conference in the above captioned matter is set for Thursday, January 9, 2003, at 9:00 a.m. in the Chambers of the undersigned. Mary A. Etter Dissinger, Esquire For the Plaintiff Lawrence B. Abrahms, Esquire For the Defendant :rlm BYTHECOURT, 1, -05-O EBERLY'S MILLS CHURCH OF · GOD, Plaimiff ' JAMES TURBAN, ' Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3660 CIVIL CIVIL ACTION - LAW PRETRIAL CONFERENCE Present at a pretrial conference held January 9, 2003, were Mary A. Etter Dissinger, Esquire, attorney for the plaintiff, and Lawrence B. Abrahms, Esquire, attorney for the defendant. This is an action in ejectment in which the plaintiff claims an intrusion onto a tract of land owned by it in New Cumberland, Cumberland County, Permsylvania. Counsel have agreed that many matters with regard to the chain of title to the subject real estate can be resolved by stipulation. They have agreed to file a stipulation no later than April 9, 2003. The defendant claims that his use of the subject real estate is sanctioned as a use appurtenant to prior conveyances. This legal issue will be briefed by the parties following trial of the case. Counsel have already identified various witnesses who 'will testify. Any additional witnesses to be called shall be identified not less than fourteen days prior to the date set for trial· This case will require a view. We will meet for the purpose of conducting a view at 9:00 a.m. on Friday, April 25, 2003, at the McDonald's at the Cedar Cliff exit of Route 83 South. Testimony will thereafter be taken in the courtroom in Carlisle. A. Hess, J. Mary A. Etter Dissinger, Esquire For the Plaintiff Lawrence B. Abrahms, Esquire For the Defendant :rim 460775.3 EBERLY'S MILL CHURCH OF GOD, Plaintiff VS. JAMES TURBAN, Defendant : IN THE COURT OF COM5 : OF CUMBERLAND COUNT~ : OF PENNSYLVANIA : : : CIVIL ACTION AT LAW : NO. 02-3660 : TRIAL STIPULATIONS Counsel for Plaintiff, Mary A. Etter DissJ counsel for Defendant, Lawrence B. Abrams, here enter into the following stipulations in antici' trial: 1. The Plaintiff is Eberly's Mill Church of Go the historic Bethel Church property located at Road, Camp Hill, Cumberland County, Pennsylvani "Original Church Property"). 2. The Plaintiff also holds legal title as tru. trust for the East Pennsylvania Conference Chur. a residential rental property at 113 Creek Road Deed from the Estate of Martha E. Mowery dated 1994 and recorded in Cumberland County Recorder ON PLEAS ~ger, and Dy agree and ~ation of , which owns 15 Creek i, 17011 (the ttee, in ~h of God, to by virtue of ,ugust 01, of Deeds office in Book 109, Page 812 (the "Rental Prop~ 3. The Defendant is James H. Turban, who owns in the residence at 1 Cedar Cliff Drive, Camp rty"). and resides Hill, Cumberland County, Pennsylvania, 17011 (the Property"). The Turban Property borders both Plaintiff to the East. (a) Mr. Turban's private vehicle is a dar Volkswagen Van. He drove a white company van Electrical and Refrigeration Contractors, Inc. also parked it in the parking area located insi boundaries of Plaintiff's property after work. 4. The Defendant owns legal title to the Turba virtue of Deed from Wayne L. Baer, surviving hu L. Baer and son-in-law of the Plaintiff's and D. common grantor, Cora E. Hart, dated May 25, 200, recorded in Cumberland County Recorder of Deeds Book 222, Page 517. 5. Cora E. Hart was the surviving original own common grantor of both Plaintiff's Rental Propel Defendant's Turban Property. Cora E. Hart neve] Original Church Property. rban roperties of k blue for SECCO for work and ~e the ~ Property by ~band of Mary ~fendant's and office in ~r and the ~ty and owned the 6. The said Cora E. Hart, by then a widow, li~ home on the Rental Property when her daughter, and she arranged to have her family's historic Hart, pre 1870) from across Creek Road moved t¢ side of the then existing stone driveway for t~ her daughter, Mary L. Baer and her family. 7. By Plan of D. P. Raffensperger dated Septe~ (Cumberland County Plan Book 17, Page 22) Cora subdivided her property to create a flag shaped (now the front part of the Turban Property) whi "2~ story frame" dwelling house thereon, and Lo (herein referred to as the Rental Property), bo properties used the stone driveway on the Renta for primary vehicular access to and from Cedar a public road. The common stone driveway betwe. (2) properties was the only access to Cedar Cli public road serving the Turban and Rental Prope~ 8. By the Hart Subdivision Plan (which did not existing driveway) Cora and her daughter Mary's boundary line crossed the existing stone drivew. times and then ran between the two houses, abou' (15) to twenty (20) feet to the East of (on the Property's side of) the then existing stone dri~ 'ed in the Mary L. Baer dwelling (Dan the east e benefit of ber 13, 1965 E. Hart lot, Lot 1 ch shows a ts 2 and 3 th of which Property !liff Drive, ~n the two ~f Drive, the ~ties. show the mutual Ly three (3) fifteen Turban 'eway. That Property's side of) the then existing stone portion of the Rental Property on the east sid~ original stone driveway and parking area now cz sidewalk and extended back along the centerlin~ driveway connection to the line of Lot 3, is h~ referred to as ~'the East Lawn." 9. Later, Cora E. Hart, by her deed dated Dece severed Lot 1 from her residual property and cc of the Turban Property to her daughter Mary L. Wayne L. Baer, her husband, which deed is reco~ Cumberland County Deed Book F, Vol. 22 at Page 10. The residential "parking area" for Lot 1 w Hart Subdivision Plan and had never been a for~ parking area. It was a part of the common dri~ 11. Cora E. Hart died eleven (11) years later, 1974, and from her Estate, her daughter, Martha inherited the Rental Property and her other dau~ L. Baer, inherited a newly designated Lot 3A (n the Turban Property) as subdivided on the surve~ for the Estate of Cora E. Hart by Edward Sander August 20, 1975 (Cumberland County Plan Book 27 The Estate's Subdivision Plan hereinafter refer .veway. That of the ossed by a of the paved reinafter mber 30, 1966 nveyed Lot 1 Baer and ded in 119 et seq. ~s not on the ~lly designed ~way. on June 10, E. Mowery, Ihter, Mary Iw part of of property RS dated Page 27). ~d to as the ~Hart Estate Subdivision Plan." 12. Martha E. Mowery and her family continued the home on the Rental Property until she died (20) years later, on November 14, 1993. Charl~ and Edward E. Mowery, served as Co-executors ol E. Mowery Estate. 13. Seven (7) months after Martha Mowery's dea about June 29, 1994, the then owner (Wayne L. B Turban Property and the Co-executors of the Est. E. Mowery entered into a Right of Way Agreement memorializing their families' respective mutual stone drive and parking area on the title plan D'Angelo dated April 22, 1994. 14. The Right of Way Agreement referred to the and parking area" illustrated on the aforementi~ title plan. 15. On or about August 1, 1994, the Plaintiff, purchased the Rental Property from the said Co- Ninety Thousand Dollars ($90,000.00) under a del in Deed Book 109 at Page 812 et seq. to live in some twenty s E. Mowery, the Martha th, on or ~er) of the ~te of Martha uses of the )f Michael C. "stone drive ned D'Angelo as Trustee, xecutors for d recorded 16. After purchasing the Rental Property, the paved the original stone driveway and parking constructed a 12~ wide x 25~ long paved drivew~ connection through the East Lawn over the Rent~ between the original stone driveway and the Chu Lot. 17. Black's law Dictionary defines an easement as "[a]n incorporeal right which is attached to right and inheres in land to which it is attach the nature of a covenant running with the land 'incorporeal right' which is attached to and be some greater and superior right or something an~ another thing more worthy and which passes as ii and is incapable of existence separate and aparl particular land to which it is annexed." Black Dictionary 509 (6th ed. 1991). 18. Black's Law Dictionary defines easement implication as an ~'[e]asement created by law grounded in court decisions in reference to a pa transaction in land wherein the owner of two pa~ used one parcel to benefit the other parcel tha the benefitted parcel, without further inquirie: benefits were included in sale." Black's Law D~ Plaintiff rea and then y extension 1 Property rch Parking appurtenant a superior ~d and is in an .ongs with hexed to ~cident to it from the s Law ~y d] [sic] rticular cels had so on selling , that these c ti onary 509-510 (6tn ed. 1991). 19. The Defendant and the Plaintiff's Pastor, participated in Neighborhood Mediation in an el resolve this matter. 20. Neighborhood Mediation resulted in an agrE the common boundary that specifically stated th contingent upon the Plaintiff's approval (said attached hereto as Exhibit '~L"). 21. The following documents are authentic and and may be used by either party during trial: a. Deed dated June 19, 1948 from Harry L. Har Hart and Cora E. Hart, his wife, recorded in th~ the Cumberland County Recorder of Deeds in Deed 13 at Page 109 et seq. (conveying the premises Road) (the "principal original deed"). Exhibit b. Subdivision Plan by Cora E. Hart creating attached hereto as Exhibit "B". Plan Book 17, c. Deed dated December 30, 1966 from Cora E. H widow, to Mary L. Baer and Wayne L. Baer, her h~ James Moss, fort to ement to move at it was ~greement is ~dmissible to Harry L. Office of Book W, Vol. Lt 113 Creek ,or #1, age 22. art, a sband, recorded in the Office of the Cumberland Count~ Deeds in Deed Book F, Vol. 22 at Page 119 sere from Cora Hart's residual property and conveyii premises at 1 Cedar Cliff Drive. Exhibit ~C." d. Subdivision Plan by Estate of Cora E. Harl 3-A (attached hereto as Exhibit ~'D"). Plan Boo] e. Decree dated March 23, 1976 of the Estate Hart, deceased, confirming distribution of real recorded in the Office of the Cumberland County Deeds in Deed Book M, Vol. 26 at Page 838 et se. inter alia., the premises at 113 Creek Road to Mowery and Lot 3A to Mary L. Baer. Exhibit ~E. f. Title Plan of Property for the estate of M Mowery done by Michael C. D'Angelo (attached he Exhibit "F") referring to Plan Book 27, Page 27 g. Right of Way Agreement dated June 29, 1994 hereto as Exhibit "G"). h. Deed from Estate of Martha E. Mowery, dece Eberly's Mill Church of God, as trustee, dated 1994, recorded in the Office of the Recorder of Recorder of ing Lot 1 the creating Lot 27, Page 27. ~f Cora E. estate Recorder of ~., conveying 4artha E. ~rtha A. ?eto as (attached sed, to ugust 1, Deeds in and for Cumberland County in Record Book 109 at Pa~ conveying the premises at 113 Creek Road. Exh i. Deed from Wayne L. Baer to James H. Turba~ 25, 2000 and recorded in the Office of the Cumk Recorder of Deeds in Record Book 222 at Page 51 the premises at 1 Cedar Cliff Drive. Exhibit j. Other Deeds in the Hart chain of title pro Sentinel Agency (attached hereto as Exhibits '~J "J-2"). Tax Map Aerial Photograph dated May 10, 19 hereto as Exhibit '~K"). dated March 21, 2002. trial. Exhibit Date: Neighborhood Dispute Settlement Mediation Plaintiff to provide ori Date, ~/~ 'e 812 bit "H." dated May erland County 7 conveying vided by The 1" through 0 (attached ontract, iinal copy at Mary A/. Ette: Dissinger /~t~orney for I Plaintiff nawrence B/--~%brams III Attorney for Defendant tT.;CER~TAIN LOT OF GROUND SITUATE IN THE VILLAGE OF BOILING SPRINt. S, COUNTY OF CUMBERLI ' PENNSYLVANI'A, BOUNOEO ANO OESCRIBED ~S FOLLOWS: ' ING'.~T A 'CORNER OF FIRST STREET ADJOINING LANDS NOW OR FORMERLY OF .ORUClLLA C. MYERS; ~"S'~ID LANDS NORTH 16~. FEET TO A C~NER AT AN ALLEY; ~ENCE WEST ALONG SAIO ALLEY~ ~8 )R~ER ON THE LAND'N~ OR FORMERLY OF dOHN E. FISSEL; 'THENCE SOUTH 15& FEET ALONG LAND ~EL; TO A' CORNER ON SAID FIRST STREET; ~ENCE EAST ALONG SAID FIRST STREET~ 38 FEET TO ~ PLACE OF BEGINNING. ' tHE SAME PREMISES ~HICH JOHN E. FISsEL BY DEED DATED A~IL 6~ 1907 AND RECORDED IN THE D'EEDS IN AND FOR SAIO Cu~ERLANU COU~Y IN DEED BOOK "P"~ VOL. 8~ PACE 281~ GRANTED A ELLEN KUHN. THE SAIO ELLEN KUHN DIED IHTESTATE ~UNE 26~ '1927~ LEAVING TO SURVIVE HER ~'EY F. XUHN AND ~0 CHILORED~ EUGENE F. KUHN ANO THELMA I. EUHN~ NC~ THELMA I~ PEF~ ~EY: F, KUHN OlEO NOT REVERY AND DIEO INTESTATE OCT~ER ?~ 1~6~ THUS VESTING THE TI ~UG~ F. KUHN AND THEL~ I. KUHN~ ~ANTORS HEREIN, HIS ONLY CHILDREN. :~[~A'ID ~ANT~S, DO HEREBY COVENANT THAT THEY ~ILL WARRANT GENERALLY THE PROPER~ HER~ ~ESS.WHEREOF~ SAID ~ANT~S HAVE HEREU~O SET THE. IR HANDS AND SEALS ~E DAY AND Y~R WRITTEN. ~ES/NC[ OF EUGE~ F. KUHN *~[[ MCI~osH THE~ I. KUHN ~1~.: ' ARTHUR S. PEFFLEY JNSYLVANIA ' ~ERLA,O ) ;i':'THE 21ST DAY OF JUNE~ 1~8~ BEFORE ME THE UNOERSIGNEO OFFICER~ PERSONALLY APPEAREO JHN) DIVORCED .K~N~ THELk~ I. K~HN (N~ THELMA I. PEFFLEY) AND ARTHUR S. PEFFLEY KN~N ;FAC'TORILY ~OVEN) TO BE THE PERSONS WHOSE N~ES,XARE SUBSCRIBEO TO ~E WITHIN INSTRUM~ :OGE0 THAT THEY EXECUTED Z~ SAME FOR THE PURPOSES THEREIN CONTAINEO. ~SS WHEREOF~ I HEREUNTO SET MY HA~ ANO OFFICIAL SEAL...~''-.,,. . :R~BY: .. ~CERTIFY THAT THE PRECISE RESIOENCE OF THE WITHIN NAMEO GRANTEE IS BOILING SPRIN~ L'~';1~8. ..JOSEPH d. MCINTOSH ~.~: ATT~NEY FOR GRANTEE. '.T, ET UX r ;LLEN TWP. 19, 194.8 THIS INDENTURE, MAOE THE 19TH DAY OF JUNE IN THE YEAR OF OUR LORD ONE THOUSAN0 NINE HUNDR FORTY-EIGHT, BETWEEN HARRY L. HART, ALSO KNOWN AS EOWARO L. HART, OF THE TOWNSHIP OF LI ALLEN, COUNTY OF CUMBERLAND AND STATE OF PENNSYLVANIA, PARTY OF THE FIRST PART, A N 0 HARRY L. HART ANO CORA E. HART, HIS WIFE, OF THE SAME PLACE, PARTIES OF THE SECONO PART, WITNESSE4H,THAT THE SAID PARTY OF THE FIRST PART, FOR AND IN CONSIDI RATIO~I OF THE SUM OF ONE OOLLAR (~l. O0) ANU OTHER VALUAgLE CONSIDERATIONS LAWFUL MONEY OF THE UNITED STATES OF A~IERICA, WELL ANO TRULY PAID BY THE r~;SECONO....;. . PA~T TO THE SAIO PARTIES OF THE FIRST PART, AT AND BEFORE THE SEALING AND ~T~EsE PRESENTS, THE RECEIPT WHEREOF IS HEREBY ACKNOWLEOGEO, HAS GRANTED, BARGAINED, ~E~FEOFFEO, RELEASE0, C0NVEYE0 AN0 CONFIRMEO, ANO BY THESE PRESENTS, DOES GRANT, ~;iALIEN,~- ' ENFEOFF, RELEASE, CONVEY AN0 CONFIRM, UNTO THE SAIO PARTIES OF THE SAID P~ SECOND PART, THEIR HEIRS ANO ASSIGNS, AT,CERTAIN TRACT OF LANO SITUATE IN THE TOWNSHIP OF LOWER ALLEN,COUNTY OF CUMB ERLANO NNSYLVANIA, MORE PARTICULARLY BOUNOED ANO DESCRIBED AS FOLLOW, TO WIT: I~'AT A' STAKE AT A CORNER CO&~ON TO THE LANDS OF THE EBERLY'S 14ILLS CHURCH OF GOO~ M~=~Y MARSERGER, AND THE GRANTOR; THENCE ALONG SAIO LANOS OF THE EBERLY'S MILLS CHURCH EXHIBIT ~eh~,t~tt CO~ ~. HA~T of .Lower All'on Township, Cumberland Cou Pennsylvania, MARY b. DAER end WAYNR DA~R, her husband, olio o~ Lower AIXon '?.wmd~tl~i Cumbor~nncl County, Pennsylvania, ~b ?HA? CER?AZ~ [o~ oE ground, aStua~e ~n the ~o~nshSp oE CumberZend Coupty, Penn~Zvania, more fully described and .e~ fo[ Lo~s: · BEGINNING at an iron pipe in the Southerly Right-of-way line oE Ce Cliff Drive, which said point is South 75 degrees 52 minutes West, distance of 100.86 feet-from a stake located on the Southerly righ of-way line of said Cedar cliff Drive at its point of'intersection Creek Road; thence South 27 degrees 14 minutes East, a distance of 102.65 feet to an iron pipol thence South 62 degrees 46 minutes We~ a distance of 55 feet; thence South 27 degrees 14 minutes East, a tance of 120 feet; thence North 62 degrees 46 minutes East, a diet of 75 feet to a ~fnt at intersection of land o£ William N. Bliss; thence by'land of William N. Bliss North 27 degrees 14 minutes Wes distance of 218 feet to a stake in the Southerly right-of-way line Cedar Cliff Prlve~ thence by tho Southerly right'of-way line of Sa; Cedar Cliff Drive, South ?$ degrees 52 minutes Wost~ a distance of 20.53 fee= tO an iron pipe, the place of BEGINNING. BEING Lot No. ~ on a Plan of Lots of Cora E. ~art, dated September 1965, by D. P. Raffens~orger, Registered Surveyor, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Penns ranis, and sub,oct tO rights-of-way .~8~ a wi th ~nce ~ a of L3, ,1- '' i:4 .~- IN RE I ESTATE OF CORA E. IlARTv DECEASED IN THE COURT OF COMMON OF CUMBERLAND COUNTY', ORPHANS ' COURT DZYZSION ~o. ~/~79'- o ~ DECREE o'cloo~ .m., upon presentation of the within pet] and on motion of John E. Slike, Esquire, it is hereby decreed that, An accordance with the statement of proposed distribu~ confirmed by this court on March 2, 1976, t~he following real estate is awarded as followe~ A. To Martha E. Moweryl ALL that certain two lots of ground, together with the buildinq erected thereon situate in Lower Allen Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point where the southern line of Cedar Cliff Drive intersects with the eastern line of Creek Road; thence along the southern line of Cedar Cliff Drive, North 75 degrees 52 minutes East, n distance of 100.86 feet to the western line of a 20 feet wide right of way shown on the herein- after mentioned plan of lots; thence along the western line of said right of way, South 27 degrees 14 minutes East, a distance of 102.65 feet to a point where said 20 feet wide right of way intersects with a 15 feet wide right, of way; thence along the northern line of said 15 feet wide righ% of way, South 62 degrees 46 minutes West, a distance of 55 feet to a point;thence across the end of said 15 feet wide right of way in and along property now of Mary L. Beer, et vir, South 27 degrees 14 minutes East, a distance of 120 feet; thence continuing along property devised to Mary L. Beer and land of Eberly Mills Church of God, South 67 degrees 27 minutes West, a distance of 173.56 feet to a stake! thence continuing along land of Eberl~ Mills Church of God, South 72 degrees West, a d~stance of 41.25 feet to a mark in ~e~ · thence continuing along lands of Eberly Church of God, North 15 degrees 38 minutes W~st, a distance of 137.06 feet to a stake on the eastern right of way line of Creek Road; thence along said road, North 16 21 minutes 28 seconds East, a distance of 120.05 feet to a point, the Pl&¢e Of'BEGINNIN~ TOGETHER WITI! a right of way varying from 20 feet to 15 feet along'the east- ern and southern sides of Lot No. 2 as shown on the hereinafter mentioned plan of lots. BEING Lots ~los. 2 and 3 on the subdivision Plan for Cora E. Hart Estate recorded in Plan Book 27, Page 27, Cumberland County records. BEING part of the premises which Harry L. 'by deed dated June 19, 1948 granted and conveyed unto Harry L. Hart and Cora E. Hart, and the said llarry L. ~art died December 10, 52 his undivided one-half interest thereby in Cora E. Hart who died June 10, 1974, and by her Last Will and Testament recorded in the office of the Register of Wills in and for Cumberland County, Pennsylvania in Will Book , Page · , devised the aforesaid property to Ma~tha E. MOwery. B. TO Mary L. Baer~ ALL that certain parcel of ground situate in Lower Allen Township, Cumberland County, Pennsylvania, more particularly bounded and descgibed as follows, to wit: BEGINNING at a point at the southwest corner of other property which the Grantee owns Jointly with her spouse, said point being South 16 degrees 21 minutes 28 seconds West, a distance of 40 feet; thence South 63 degrees 30 minutes East, a distance of 119.73 feet; thence Sou~h 27 degrees 14 minutes East, a distance of 128.32 feet from the intersec- tion of the eastern right of way line of Creek Road and the southern right of way line of Cedar Cliff Drive; thence North 62 degrees 46 minutes East, a distance of 75.0 feet to a point ~n line of land now or formorly of Bliss; thence along said land and other land now or formerly of Hart, South 27 degrees 14 minutes East, ~ distance of 146.54 feet to a · stake on line of land now or formerly of Richard Barlup; thence South 58 degrees 46 minutes West, a distance of 141.44 feet to . a stake at corner of land of Eberly Mills Church of God; thence North 22 degrees 56 minu~es West, a distance of 165.58 feet to a stake on line of land about to be cOnVeyed to Martha E. Mowery and being Lot No. 3 on ....~. ~ .~ , ~..... , the hereinafter mentioned plan of lotsl thence along Lot No. 3, North 67 degrees 27 minutes East, a distance of 53.56 feet to a point on · other lands of Mary L. East; thence South 27 degrees 14 minutes East, a distance of 8.32 feet to a point, the Place of BEGINNING. BEING Lot No. 3-A On ~e plan of lots pre- pared by Edward F. Sanders, R.S., dated August 20, 1975, which plan is recorded in Plan Book 27, Page 27, Cumberland County records. BEING part of the premises which Harry L. Nart also known as Edward L. Hart, by his deed dated June 19, 1948, granted and conveyed unto Harr~ L. llart and Cora E. Hart, his wife, which deed is recorded in Deed Book 'W~, Vol. 13, Page 109, Cumberland County records. The said Harry L. Hart died December 10, 1962, his undivided one-half interest thereby vesting in Cora E. Hart who died June 10, 1974, and by her Last Will and Testament recorded in the office of the Register of Wills in and for Cumberland County, Pennsylvania in Will Book ~foresal~' Page .. , devised the property to Mary L. Bast. To }lar L. Hart: ALL that certain tract or parcel of land situate '~':~*"'' In Lower Allen Township, Cumberland County, Pennsylva~ka,'more particularly bounded and described as follows, to ~" .' BEGINNING at a point on the southern line of H~mmel Avenue, as laid down by the heirs of William R. Gorgas, which point is 140 feet west of the western line of Hilltown Road at the division line of property No. 71 thence ..... .... southwardly at right angles with said HUmmel Avenue, 102 feet, more or less, to a point on the northern line of a 20 feet wide alley, 35 ''% '~feet, more'or less, to a point on the division line of Lot No. 11; thence northwardly along said division line and through the center of a partition wall between this and ~he adjoining house and beyond, 102 feet, more or less, to ., ........ %·. the southern line of Hummel Avenue; and thence eastwardly along the southern line of said Hummel Avenue, 35 feet to a point, the Place of BEGINNING. .. HAVING thereon erected a brick dwelling house known as 9 Hummel Avenue, Camp Hill, 'Pennsylvania. UNDER AND SUBJECT to reservations and restric- .. tions of prior record. *46'00' 5~. 56 / / / / / / / EXHIBIT 00~ 0 0 0 RIGHT-4~F-WAY AGREEMENT THIS RIGHT-OF-WAY AGREEMENT is made this and WAYNE BAER; 1994 by and between EDWARD E Executors of the Estate of Mar WITNESSETH: WHEREAS, the Estate of Martha E. Mowery i owners of two (2) lots of land located in Township, Cumberland County, Pennsylvania,.being 3 on the subdivision plan for the Cora E. Hart Est in Plan Book 27, Page 27 of the Recorder Cumberland County. Title to the lots is vested ir E. Mowery as of Decree of the Orphans Court dat, 1976, Cumberland County No. 21-74d410. Said M~ died on November 14, 1993 and Edward E. Mowery an Mowery were appointed Co-Executors pursuant Letters Testamentary by the Court of Comm¢ Cumberland County, Estate No. 21-93-975. WHEREAS, Wayne Baer is the record owner a~joining lots to the land of the 'Estate of Mart being lots 1 & 3a of the subdivision plan for Estate, recorded in Plan Book 27, Page 27 of the Deeds of York County. Title to Lot 1 was veste( Baer and Wayne Baer pursuant to Deed recorded F22, Page 319 of the Recorder of Deeds of Cumberl Title to Lot 3a was vested in Mary L. and Wayne B. to Deed recorded in Deed Book B 28, Page 725. ~? day of MOWERY and :ha E. Mowery the record Lower Allen lots no. 2 & ate recorded )f Deeds of said Martha id March 23, ~rtha Mowery d Charles W. .o Grant of Pleas of 9f two (2) la E. Mowery ora E. Hart Recorder of in Mary L. n Deed Book and County, ~er pursuant aid Mary L. ~aer died on Nove,.,Der 17, 1979 vesting her incer of survivorship into her husband, Wayne Bae~: WHEREAS, the parties desire to formalize the the rights of their successors in title to utili: drive and parking area visible on the ground and d the survey of Michael C. D'Angelo dated April attached hereto as Exhibit "A", which drive and travels lots 1,2, and 3. NOW THEREFORE, the parties, intending tc bound, do agree as follows: 1. The Estate of Martha E. Mowery, on it and on behalf of its heirs, successors and a: hereby grant and convey to Wayne Baer, ~on behal the benefit of his heirs, successors and assign Baer on his own behalf and on behalf of his heirs and assigns, does hereby convey and convey to ti Martha E. Mowery, on its behalf and for the bet successors and assigns, the unrestricted right stone drive and parking area as i~lustrated on survey of Michael c. D'Angelo for ingress, egress for all times and purposes in common wit~ each successors and assigns over the existing drivewa ground and extending from the Township Road kn( Cliff Drive through the lands of both the Estate Mowery and Wayne Baer. .~st by right ir right and :e the stone ~signated on 2, 1994 and )arking area be legally own behalf signs, does of and for , and Wayne successors e Estate of lefit of its to use the ~he attached and regress )ther, their visible on ~n as Cedar of Martha C. 2. The par ~s using said"righ'~-of-way the cost of the reasonable maintenance there(>f.. 3. Notwithstanding this Agreement, the par agree that the 20 foot right-of-way and 1.5 foot r. as designated on the April 22, 1994 survey of D'Angelo, revised June 13, 1994, continue in ful effect, for the benefit of all parties herein. 4. This Agreement shall be binding upon hereto, their heirs, successors and assigns. In witness whereof, intending to be legally parties hereto do set their hands and seals the yel "first above written. WITNESS: ESTATE OF MARTHA E. CHARLES W. MOWERY, EDWARD E. MOWERY,/ WAY'NE B~R-.. 3 are equally :les hereto [ght-of-way Michael C. force and he parties bound, the {r and date MOWERY .'~cutor iecutor )MMONWEALTH OF PENNSYLVANIA ) ) ss. 0UNTY OF CUMBERLAND ) On this 29th day of June 1994, before m ublic, the undersigned officer, personally appeal · Mowery and Edward E. Mowery, Executors of th~ artha E. Mowery, known t° me (or satisfactorily pr he persons whose names are subscribed to ' nstrument, and acknowledged that they executed th, IGHT-OF-WAY AGREEMENT in the capacity therein sta he purposes therein contained.  to set my hand and off / Iotary Publi~ ) : ) ss. COUNTY OF CUMBERLAND ) I On this 29th day of June 1994, before m, iPublic, the undersigned officer, personally app~ iBaer known to me (or satisfactorily proven) to be .whose name is subscribed to the within instr .acknowledged that he executed the foregoing R AGREEMENT in the capacity therein stated and for t 'therein contained. .my hand and off ~, a Notary ~ed Charles = Estate of oven) to be :he within ~ foregoing ted and for icial seal. ~, a Notary ~ared Wayne the person ument, and [GHT-OF-WAY ~e purposes Lcial seal. Madeth~s %~ '' day of August, 1994; BETVFEEN EDWARD MOWERY and CHARLES WILLIAM MOW]:RY, Co-Executors of the Estate of Martha Elizabeth Mowery, herein ]esignated as the Grantors, AND E~ERLY'$ MILL CHURCH OF GOD, in trusT for the EAST PENNSYLVANIA CONFERENCE CHURCHES OF GOD, 900 $. Arlington Avenue, Harrisburg, Pennsylvania, herein designated as G~antee. ~//q~~, the said Martha Elizabeth Mowery, by, er Last Will and Testament, duly proved and recorded in the ~umberland County Register of wills Office, Pennsylvania, t° Estate No. 21-93-975. Letters Testamentary being issued on December 9, 1993, provided, in pef'tinent part, as follows: ITEM V: In addition to powers given ~hem by law, my Executors-~d their successors acting hereunde:~ shall have the following discretionary powers applicable to all real and personal property held by them, effective without court order and until actual distribution: (b) To sell real estate for any pur~,ose, publicly or privately, for such prices and on such terms as they deem proper, without liability on the purchasers to see to a~plication of the purchase moneys;... ITEM IX: I appoint my sons, CHARLES WI! LtAM MOWERY, and EDWARD MOWERY, as Co-Executors of this my Will. %VITNESSETH, that the Grantors, for and in con sum of NINETY THOUSAND DOLLARS ($90~000.00) States of America, to the Grantors in hand'well the Grantee, at or before the sealing and d presents, the receipt whereof is hereby ackn. Grantors being therewith fully satisfied, do grant, bargain, sell and convey unto the Grantee mnn THOSE TWO (2) CERTAIN lots, being a parce Township of Lower Allen, County of Cumberland, Pennsylvania, more particularly bounded and descr with a survey dated April 22, 1994 by Michael C. copy of which is attached hereto and incorpc Exhibit A, as follows: BEGINNING at a point at the intersection of Crc ,. NO. sideration of the Ley of the united and truly paid by ~livery of these )wledged and the by these present forever, k of land in the Commonwealth of fbed in accordance D'Angelo, PL5, a rated herein, as sk Road and Cedar JUL-I?-OZ FROt/,-'TNE SENTINEL AGENCY +?i?Z348198 Cliff Drive, thence by the Southern line of Cedar 75"-52 minutes 00 seconds.East, a distance of 100. Thence along lands now or formerly of Mary L. a following four courses and distances: South 27" 14 minutes 00 seconds East a distance a pin; Thence South 62" 46 minutes 00 seconds W 55.00 feet to a pin; Thence South 27" 14 minutes distance of 111.68 feet to a pin; Thence South seconds West a distance of 53.56 feet to a pin; lands now or formerly of Eberly's Mills Church of three courses and distances: South 67" degrees 27 West a distance of 60.00 feet to a point; Th minutes 00 seconds West a distance of 41.25 feet North 15" 38.minutes 00 seconds West a distance a p~n; Thence along the Eastern side of Creek minutes 36 seconds. East a distance of 80.05 feet along the same North 16" 21 minutes 36 sedonds 40.01 feet to a point, the place of Beginning. CONTAINING 33,350.50 square feet and under ar Right-of-Ways and Easements of record, includin4 to the Right of Way Agreement dated June 29, EDWARD E. M0WERY, also known as EDWARD MOWER~ MOWERY also known as CMARLES WILLIAM MOWERY, Cc Estate of MARTHA E. MOWERY, also known as MARTH~ and WAYNE BA~.R, said agreement being recorded on the Cumberland County Recorder of Deeds Office Book 478, Page 142. ALSO BEING Lots Nos. 2 and 3 on the Subdivision Hart Estate recorded in Planbook 27, Page 27, County Recorder's Office. HAVING THEREON ERECTED a single family dwelling 113 Creek Road, Camp Hill, Pennsylvania. BEING the same premises which Martha E. Mowery received pursuant to Decree of the Orphans County, dated March 23, 1976, and being recorded IICounty Recorder of Deeds Office, Deedbook M26, Vo IMarth.a Elizabeth Mowery died on November 14, IFURTHER SUBJECT to all Acts of Assembly, Co% Ordinances, rights of Public Utility and Public existing restrictions and easements, visible or extent that any persons or entities have acqu hereto. -371 P.03/06 F-l?? Cliff Drive North 86 feet to a pipe.. nd Wayne Baer the of 102.65 feet to sst a distance of 00 seconds East a 67" 27 minutes 00 Thence along the God the following ninutes O0 seconds ~nce South 72" 00 ola pin; Thence o 37.06 feet to Road North 16' 21 to a point; Thence asta distance of ~ subject to all !, but not limited .4 by and between, , and CHARLES W. -Executors of the ELIZABETH MOWERY July 18, 1994 in in Miscellaneous Plan for Cora E. In the Cumberland known as No. a single person, 2curt, Cumberland in the Cumberland lume 26, Page 838. ~3. ~nty and Township ~ervice Companies, of record, to the ired legal rights JUL-I?-O~ FROV,-THE SEHTIHEL AGEHCY , +?1,723481~8 WITNESS 1-371 P.04/06 F-l?? TOGETPXERV ITH all and singular the buildings, improvements, way~, woods, waters, watercourses, rights, liberties, privileges, hereditament and appurtenances to the same belQngs or in anyway appertaining; and the reversion and reversionS, remainder and remamnders, rents, issues and profits thereof, ~nd of every part and parcel thereof; ~i~ also all the estate, right, title, interest, use, possession, property, Claim and de~and whatsoever of the Grantor both in law and in equity, of, in ani~ to the premises herein described and every part and parcel :hereof with the appurtenances. TO HAVE AND TO HOLD all and sin¢~lar the premises herein described together with the hereditament ,~nd appurtenances unto the Grantee and to Grantee proper use and b,~nefit forever. In all references herein to any parties,' persi3ns, entities or corporations, the use of any particular gender or the plural or singular number is intended to include the apprc~priate gender or number as the text of the within instrument may require. Wherever in this instrument any party shall i~e desi'gnated or referred to by name or general reference, suc~ designation is intended to and shall have the same effect as if :he words "heirs, executors, administrators, personal or legal representatives, successors and assigns" had been inserted after e~ch and every such designation. IN glTNF VgHE OF, the Grantors has hereunt3 set their hands and seals the day and year first above written. SIGN~D,~T~LED and DELIVERED by EDWARD MOWERY ' Co-Executor of Es~ of Martha Elizabeth CHARLES William MOW~R¥ Co-Executor of Estale of. Martha Elizabeth Mo,'ery JUL-I~-OZ 11 :$'gAU FROIJ-'TNE SENTINEL AGENCY COMMONWEALTH OF PENNSYLVANIA ) ) SS. COUNTY OF CUMBERLAND ) +~I?Z3481 OB On this 1st day of August me, a Notary Public, the undersigned officer, per~ Charles William Mowery and Edward Mowery, kr satisfactorily proven) to be the -371 P.06/06 F-l?? , 1994, before ;onall¥ appeared ~own to me (or person, who:;e name(s) are subscribed to the within instrument, and acknowl..=dged that they executed the foregoing DEED in the capacity therei~..,s~.~.~~d for the purposes therein contained . ~_:.. - · IN WITNESS WHEREOF, I hereunto set my hand and~'~' "· Notary Public NOTAR[A~ LAURA My commission expires: M~' M~rch I HEREBY CERTIFY that the precise .addres of the Grantee herein is: CO~ONWEALTH OF PENNSYLVANIA Recorded in the Office for Recording of Deeds ~%~~ T'~. _ ~\~C%~_ .. in Deed B~ % Witness my hand and Seal of Office this of 5,%.... / 815 ~.. Recorder ' in and for ~C. day Between . rnev-h~JFnct Eileeu F. parthemore Grantor), of *J~c au Wn),ttc [,. Bner b~ h~ Atto O~crc~f~er ca~c~ thc j~ntcs Y{.' *~ttrbun, shtgle t3mnI (.hcr¢in~,fter catted thc Or=alee}* of tb { thc sum of oNE . · craQO~ o ~c U~ confirt ' o.t. w~c~, hts pct~ylvania. out',d sltuatC in L, oWcr Alton TownShip, Cumbertand Coul e ~ud~wcst corncy ~' o~ 40 [get; m, [ 12S.32 fcct( Cliff ~c: thence n~GIHHtH~ t, -., . qS s~oflds "": .... 14 mmutc~ ~ ' t~ oc~".r tt9.33 feet tuck' -.f C~cCk Ro~u a~[~-~ fcct to · ~int ~,~'. rccS 14 tmon{, dc.r~4& of thc caStC~t i,~,. , ~nutCS E~t, a ~- ., foflnc~%Y at ~,-'.'~ ~ ~rtU0; ~2 t' . ,once aton~ lard t~tx( "n t%x~c of %axed now u, .ortner of %at~d o, ~;[~c O' .atxd now of 0 ~ dy de,rues 27 ti , c~ f~t ~ I Sta~' 0 · ~ .n tO a SL~kC at c ..... t stakc ot~ .... . ~7 degrees 14 2)75, wi~ich plaa ~915 ~d r~ocd~ t~ ant~ iud convCyco ........ "~- - ctiff O~i~ ,i.t.o(*W~y thtc -.. · ~t.w~y t~nc of CcGar .... Sou~x'~' ~' 14 nxhmtcs E=sx. LoT It · e~,,tixcdy Ktg,x,-~- v. t~tcd on u,~ ~,rc .- ~ ~5 (cut; B~G~N~tt~. ~u.-st m d~st~ncc ..~. with Crcc~ ',~ ~nutC$ ~e.~iutCS ~ ' fofnXcrtY ot · 52 minutes "~ ' __:., of intctsec,w" . .~ 62 degrees "~ ,~ ,,,-fcc ~ ' a~ ~oW or · · ' d~st~X - ~4 ~utCS ~ ' ' OW Or tOftX ; · -f 2~ icc ~ ?Sa [CCi tO m ~tnt~t..th 21 dcg{CCS lq t~,,,-<[. Southerly rxgut'°".[_'~lacc Of .~ff;,xst'crgcr' · u*lt~t~ ~. BI~$ ,u, .,r ~,iVC' t[IcnCC by u~ - -~ an ~fOfl p~' t~ F ,n6~ by O.P. ~', .~ wly'l~nc of C~ar 2;:t ,~stancc of 20.53 icc,, . ---,cnxb'? ;,,d fo, Cun,bcr'~" degrees 52 mmutCS~ o[ Cora E. tt3rt, dnt~rO~ Dc m x 3 pt3tl of Lots "'e of thc 2ccor ,-o~S ,- r30 . ~ ~t HO- t Ct ~d in thc Otttc ~- sa~d pt:~n o. ~ . .,I DccCE~oc ' ..., c [stored burv~] "ct tO r~ghts-ox'W'; .O~ G~ Otttlt~ u~. . ICC ~g ..,-~3 m~dsubJc .... :i. ocWOm,~_..~ cfl~ldC_.. _,~.G;xC(, -~: --corded hx thc Omc~ ~, n ,.rm~tcd ~nd cotxvcycu . B,xcr 19671nB°°~v" , - -'hz" ti~kc tn" ~ husb~nd, m fcc. . ,~ 1979 tbcbY ~cs~ = Thc s:d6 M=U L. D=cr d~cd NovcmOcr ~" tenants by thc cntk~t~cs. MAP F.22-X 19 &' Dl~t*t/lCr The Sentinel Agency T.aO,N~ *S Community Settlement Company · . .21z HaT TelE ww PARCEL NO. 13-24-0805-096 PROPERTY: 1 Cedar CliffDrive TITLE INSURANCE · TITLE ABS' REAL ESTATE CLOSING! James Turban Wayne & Mary Baer Mary Baer (1976) Harry & Cora Hart (1948) Elmira Hart (1917) ABSTRACT OF CHAIN OF TITLE Deed 222-517 (1978) B-28-275 (Lot 3-A) (1966) F-22-1H (no recital) M-26-838 (Parcel "B") W-13-109 8 W-13-109 P-8-533 (Tract 1) ~) As to the Eastern 20' +/- Authori~,Signa~ry Ill Agent for -- TICOR TITLE INSURANCE COMPANY · FIRST AMEl~ i EXHIBIT Y · OLD REPUBLIC NATION 5 North Second Street 'isburg, Pennsylvania 17110 phone (7~ 7) 234-2666 (717) 234-8198 ~v.sentinelagency.info 'RACTS 'lan ,ots 1 & 3A, 'lan Book 27, 'age 27 ' (Lot 1) lan Book 17, age 22 P-8-533~) TITLE INSURANCE COMPANY PARCEL NO. 13-24-0805-071; PROPERTY: 113 Creek Road Eberly's Mill Church Martha Mower (1976) Harry and Cora Hart (]948) Elmira Hart 0917) ABSTRAC'T OF CHAIN OF TITLE Deed 109-812 M-26-838 Part of W-13-109 Lots 2 & Book 27, Property Plan aage 27 :eat for ~ TICoR TITLE I,'qSUP~NCE COMPANy · FiR.c;T ,%.'~-=RIG~N TITt./- NSUE,%,,,,'CE CO,~R~Ny · OLD R.=PUBLIC 'LE INSuRANC~ CO.'dP,,~Ny EXHIBIT "J-2" EXHIBIT .' O. '0 Neighborhood Dispute .Settl l_CiTP4 . ..... Name ( s ): '.. ' ~' ~-'- ,r .., ', Address: d" Phone: Address: ! ( ~ ~, ,- ~ c ,' . ( F . O r . , · ( ,~. _ Il, I Phone: ~ment )233-8255 r,- r Signed: d"'-- "~--- :.,. q (' '---.e $ EBERLY'S MILLS CHURCH OF GOD, Plaintiff VS. JAMES TURBAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3660 CIVIL CIVIL ACTION - LAW IN RE: CONTINUED HEARING ORDER AND NOW, this 3 o" day of April, 2003, continued hearing in the above captioned matter is set for Monday, August 18, 2003, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA, for the purpose of taking the testimony of defendant, James Turban, as herewith set forth. q~ary A. Etter Dissinger, Esquire For the Plaintiff ~awrence B. Abrahms, Esquire For the Defendant :rlm BY THE COURT, K,~A. Hess, J. EBERLY'S MILL CHURCH OF GOD, Plaintiff vs. JAMES TURBAiq, Defendant CIVIL ACTION AT LAW NO. 02-3660 JURY TRIAL DEMANDED IN THE cOURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA : ss :: COUNTY OF PERRY : Megan A. Labashosky, secretary for the attorney for Plaintiff, being duly sworn according to law, says that she delivered by hand a true and correct copy of Subpoena in this action to the counsel of Defendant, Lawrence B. Abrams, Esquire, at his office, Rhoads & Sinon, L.L.P., One South Market Square, Harrisburg, Pennsylvania, and that counsel for Defendant, Lawrence B. Abrams, Esquire, did receive same on April 22, 2003. Sworn to and subsc{gbed befor~ m~ this ~" day of ~f3~,~ , 2003. Meg~ A. Secretary for Attorney for Plaintiff Supreme Court ID ~ 85556 28 N. Thirty-second Street Camp Hill, PA 17011 (717) 975-2840 /Notary Public / EBERLY'S MILL CHURCH OF GOD, Plaintiff VS. JAMES TURBAN, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : 02-3660 CIVIL : CIVIL ACTION - LAW 1N RE: ACTION 1N EJECTMENT BEFORE HESS, J. ORDER AND NOW, this ,:,g'q day of December, 2003, it is hereby ordered and decreed that the plaintiff is the undisputed owner of the property located at 113 Creek Road, Camp Hill, Cumberland County, Pennsylvania, as further described in the deed to Eberly's Mill Church of God and recorded in Deed Book 109, Page 812 in the Cumberland County Recorder of Deeds Office. The defendant is liable to the plaintiff for damages in trespass and ejectment in the amount orS1.00. It is further ordered and directed that the defendant and all future owners of the neighboring property located at 1 Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania: 1. Shall cease using or entering any of the property within the boundaries of the plaintiff's aforementioned deed except for that property specifically set forth in the Right-of- Way Agreement dated June 29, 1994, as defined on Trial Exhibit F, and with the right of access over a pathway from said right-of-way to the rear of the home on Lot No. 1; and 2. Shall abide by the Right-of-Way Agreement and only use the portion of property set forth in the Right-of-Way Agreement for the specific purposes of ingress, egress, and shall park ~Foaren L. Koenigsberg, Esquire r the Plaintiff so as not to obstruct the plaintiff's use of the right-of-way for ingress, egress and regress. BY THE COURT, e~/~tess, J. ,/Lawrence Abrams, Esquire For the Defendant EBERLY'S MILL CHURCH OF GOD, Plaintiff VS. JAMES TURBAN, Defendant 1N THE COURT OF C, OMMON PLEAS OF CUMBERLAND CO/rNTY, PENNSYLVANIA : : 02-3660 CIVIL : CIVIL ACTION - LAW : 1N RE: ACTION IN EJECTMENT BEFORE HESS~ J. OPINION AND ORDER In this case, the plaintiffhas filed a complaint in trespass and ejectment to curtail the incursions of the defendant onto land owned by the church. While the dispute between the parties is, for them, a very serious matter and emotions have sometimes run high, there is little disagreement concerning the salient facts. The plaintiff is Eberly's Mill Church of God which own:s the church property located at 115 Creek Road, Camp Hill, Cumberland County, Pennsylvania. The plaintiff also holds legal title as trustee, in trust for the East Pennsylvania Conference Church of God, to a residential rental property at 113 Creek Road, which is Lot No. 3 on the plot plan set out on page 3 of this opinion. The church also owns Lot No. 2 depicted on the same diagram. The defendant, James Turban, owns and resides in the residence at 1 Cedar Cliff Drive, Camp Hill, Cumberland County. The residence is located on Lot No. 1. Defendant also owns adjoining Lot No. 3-A. His title is by virtue of a deed from Wayne L. Baer, surviving husband of Mary L. Baer, and son-in-law of the plaintiff's and defendant's common grantor, Cora E. Hart. This deed was dated May 25, 2000, and is recorded in Cm~berland County Recorder of Deeds Book 222, Page 517. Cora E. Hart, by then a widow, lived in the home on the rental 02-366O CIVIL property when she and her daughter, Mary L. Baer, arranged to have the family's historic dwelling from across Creek Road moved to the east side of the then existing stone driveway. This was for the benefit of Mary L. Baer and her family. By plan ofD. T. Raffensperger dated September 13, 1965, Cora E. Hart subdivided her property to create a flag-shaped lot (Lot No. 1) and Lots 2 and 3 (hereinafter referred to as the rental property) both of which used the stone driveway as depicted on the diagram on page 3. The common stone driveway was the only access to Cedar Cliff Drive. The driveway passed over the property of both Cora and her daughter Mary. By deed dated December 30, 1966, Cora Hart severed Lot No. 1 from her residual property and conveyed it to her daughter, Mary L. Baer. When Cora died in the early 1970s, Mary inherited the newly designated Lot 3-A (now part of the Turban property). On or about June 29, 1994, the then owner (Wayne L. Baer) of the Turban property and the then owners of Lots 2 and 3, the rental property (co-executors of the Estate of Martha E. Mowery), entered into a right-of-way agreement memorializing their families respective mutual uses of the stone drive and parking area. That agreement granted to owners of the Baer property "the unrestricted right to use the stone drive and parking area as illustrated on the ... survey ... for ingress, egress and regress for all times and purposes in common with each other over the existing driveway visible on the ground and extending from the township road to the lands of both .... " From the mid 1960s, following the movement of the house onto Lot No. 1, the Baers had access to the rear of their home along a path which extended to the stone driveway. This pathway went through a lawn area which is on lands retained by Cora Hart. Because of the way that the homes are situated, however, this lawn area appears to the eye to be a portion of the property appurtenant to the residence on Lot No. 1. 2 02-3660 CIVIL ii/ The dispute between these parties deals with the striated area of the survey. These portions of land are clearly owned by the plaintiff. Nonetheless,. since the summer of 2001, the defendant has usurped this portion of the plaintiff's property for his own use. At one point, he caused a storage container, a dumpster and a port-a-john to be placed on the plaintiff's property. These obstructions have since been removed and the plaintiff is :not now suffering harm in these regards. Currently, the area in question is landscaped with plants, shrubs and lawn ornaments in something of a rock garden. Ejectment is an action filed by a plaintiff, Who does not possess the land but has the right to possess it, against the defendant who has actual possession. Siscos v. Britz, 790 A.2d 1000 3 02-3660 CIVIL (Pa. 2002). At one point, the plaintiff attempted to gain control of the contested square footage by the installation ora large wooden fence. This fence had all the esthetic appeal of a seventeenth century frontier fort.t Unfortunately, the fence had no gate or other opening across the path leading from the rear of the defendant's house to the parking area. In December of 2001, the defendant's house caught fire. Portions of the fence were dismantled by responding firefighters. During the reconstruction of the defendant's home, the fence was removed so that contractors could have access to the Turban residence. It was after that the defendant began his landscaping on the disputed real estate. This action was filed in the summer of 2002. In their filings with the court, the parties refer to the lawns of the disputed parcels of real estate as the "east lawn." The defendant contends that he has art easement by implication across the east lawn between his house and the parking area. We agree with this contention. He then goes on to assert that he has an easement over the entire east lavm. We disagree with this assertion? Easements by implication are clearly recognized in Pennsylvania. As noted in Possessky v. D.M., 655 A.2d 1004, at 1008 (Pa. Super. 1995): In determining whether an easement has been created by implication, Pennsylvania courts have utilized two different tests: the traditional test and the Restatement test. The traditional test has been described as follows: "Three things are regarded as essential to create an easement by implication on the severance of the unity of ownership in ~ Any advice we would give on matters having to do with landscape architectare is, of course, not binding on either party. Nonetheless, we observe that the rights of both sides can be accommodated without installing a fence resembling the Berlin Wall. Were the parties to permit the defendant to install a fence which was compatible with his property, this might go a long way towards healing the sores which have erupted between these two neighbors. 2 The defendant does not even attempt to explain how an easement over all of'the east lawn translates into his right to turn it into a rock garden. 4 02-3660 CIVIL an estate; first, a separation of title; second, that, before the separation takes place, the use which gives rise to the easement, shall have been so long continued, and so obvious or manifest, as to show that it was meant to be permanent; and third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained. To these three, another essential element is sometimes added, - that the servitude shall be continuous and self- acting, as distinguished from discontinuous and used only from time to time." Id. [297 Pa. 317] at 345, 147 A. [51] at 53 [1929]. See also Depietro v. Triano: 167 Pa. Super. 29, 31-32, 74 A.2d 710-11 (1950). Mann-Hoffv. Boyer, 413 Pa. Super. 1, 8, 604 A.2d 703,706-707 (1992), allocatur denied, 5211 Pa. 655,613 A.2d 560 (1992), citing Owens v. Holzheid, 335 Pa. Super. 231,484 A.2d 107 (1984) (Montemuro, J., dissenting). The Restatement test, which was expressly adopted in Pennsylvania in Thomas v. Deliere, 24][ Pa. Super. 1,359 A.2d 398 (1976), "emphasizes a balancing approach, designed to ascertain the actual or implied intention of the parties. No single factor under the Restatement approach is dispositive. Thus, the Restatement approach and the more restrictive tests ... co-exist in Pennsylvania." (citations omitted) Mann-Hoffv. Boyer, supra, 413 Pa. Super. at 8, 604 A.2d at 707. Section 476 of the Restatement of Property designates the following factors as imporumt in determining whether an easement by imphcation exists: (a) whether the claimant is the conveyor or the conveyee, (b) the terms of the conveyance, (c) the consideration given for it, (d) whether the claim is made against a simultaneous conveyance, (e) the extent of necessity of the easement to the 5 02-3660 CIVIL claimant, (f) whether reciprocal benefits result to the conveyor and the conveyee, (g) the manner on which the land was used prior to its conveyance, and (h) the extent to which the manner of prior use was or might have been known to the parties. Mann-Hoffv. Boyer, supra, 413 Pa. Super. at 8-9, 604 A.2d at 707 (1992), citing Owens v. Holzheid, 335 Pa. Super. 231,484 A.2d 107 (1984) (Montemuro, J., dissenting). "The extent to which an easement is necessary under the circumstances is a factor heavily weighed in determining whether an easement should be implied." Tomlinson v. Jones, 384 Pa. Super. 176, 179, 557 A.2d 1103, 1104 (1989). Additionally, when a right is of ancient origin and is too remote to be capable of direct proof"a relaxed burden of proof falls upon one claiming such rights." Owens v. Holzheid, 335 Pa. Super. 231,238, 484 A.2d 107, 111 (1984); Tornlinson v. Jones, 384 Pa. Super. 176, 557 A.2d 1103 (1989) In this case, by an agreement filed of record, both owners of the adjoining tracts agreed to rights-of-way over the "existing driveway visible on the ground."' Moreover, the right-of-way encompassed use of the driveway as a "parking area." Since the mid 1960s, a walkway extended from the parking area providing access therefrom to the home currently owned by James Turban, the defendant. The use of that walkway as access has continued for almost forty years. The walkway is clearly visible. To prevent the use of the walkway in connection with an easement over the parking area renders the parking area virtually useless. Thus, the easement is clearly necessary. The fact that the defendant enjoys the right to traverse the existing path does not, however, suggest that the parking area is somehow the "gateway" to his property. Such a "gateway" is at the point where the pathway passes onto Lot No. 1. Thus, any disturbance, by 6 02-3660 CIVIL the defendant, of the land in Lot No. 3, even surrounding the walkway is a trespass. We will, accordingly, grant the plaintiff a judgment in ejectment. An award of damages (other than nominal damages) for trespass would be improvident at this time. No monetary amounts have been pled or proven with respect to the past or present trespass. While it may well be that the measure of damages is the cost of restoring the lawn to its condition prior to the defendant's encroachment, it is, as yet, unknown as to whether the defendant will cooperate in or assist with such restoration. The plaintiffmay choose to give the defendant the opportunity to remedy the matter to plaintiWs satisfaction in a manner which is financially advantageous to both parties. As this opinion goes to press, the first snow of the winter is falling. Any order from this court that extensive landscaping work be undertaken by the defendant in the immediate future would be clearly impracticable. We thus leave for another day the amount ora monetary award, if any, against the defendant. The plaintiff seeks counsel fees against the defendant. We will deny this request. It is true that a party may be awarded counsel fees where the conduct of another party "in commencing the matter or otherwise was arbitrary, vexatious, or in bad faith." 42 Pa.C.S.A. 2503. The defendant, of course, did not commence this lawsuit. We agree with the plaintiffthat the defendant's conduct, in defending his supposed property rights was at times extreme. Nonetheless, we do not believe that his contention, that he had the right of access to the rear of his home across the east lawn, was arbitrary or made in bad faith~ In the meantime, we know of nothing that the defendant has done in the conduct of the litigation which could be described at all as vexatious. The defendant has asserted that the extension of the driveway of Lot No. 3 into the church parking lot somehow constitutes a defense to an action in ejectment with respect to lands 7 02-3660 CIVIL of the plaintiff. These are entirely separate matters and we simply do not understand the connection. ORDER AND NOW, this 5' · day of December, 2003, it is hereby ordered and decreed that the plaintiff is the undisputed owner of the property located at 113 Creek Road, Camp Hill, Cumberland County, Pennsylvania, as further described in the deed to Eberly's Mill Church of God and recorded in Deed Book 109, Page 812 in the Cumberland County Recorder of Deeds Office. The defendant is liable to the plaintiff for damages in trespass and ejectment in the amount of $1.00. It is further ordered and directed that the defendant and all future owners of the neighboring property located at 1 Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania: 1. Shall cease using or entering any of the property within the boundaries of the plaintiff's aforementioned deed except for that property specifically set forth in the Right-of- Way Agreement dated June 29, 1994, as defined on Trial Exhibit F, and with the right of access over a pathway from said right-of-way to the rear of the home on Lot No. 1; and 2. Shall abide by the Right-of-Way Agreement and only use the portion of property set forth in the Right-of-Way Agreement for the specific purposes of ingress, egress, and shall park so as not to obstruct the plaintiff's use of the right-of-way for ingress, egress and regress. BY THE COURT, (nA. Hess, J. 8 02-3660 CIVIL K~en L. Koenigsberg, Esquire Forthe Pl~miff Lawrence Abrams, Esquire For the Defendant 9 EBERLY'S MILL CHURCH OF GOD, Plaintiff JAMES TURBAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 02-3660CIVIL TERM IN RE: TESTIMONY OF TIMOTHY LANGELETZ Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on April 25, 2003, in Courtroom Number Four. APPEARANCES: Mary Dissinger, Esquire For the Plaintiff Lawrence B. Abrams, III, Esquire For the Defendant INDEX TO WITNESSES FOR THE PLAINTIFF DIRECT CROSS REDIRECT RECROSS Timothy Langeletz 3 11 14 15 2 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. DISSINGER: I call Tim Langeletz. Whereupon, TIMOTHY E. LANGELETZ having been duly sworn, testified as follows: DIRECT EXAMINATION BY MS. DISSINGER: Q A Q A Q A Q State your name for the record. Timothy E. Langeletz. Where do you reside? 358 Furlong Lane, Camp Hill. How are you employed, sir? I own Langeletz Landscaping. Were you hired to do any work for Mr. Turban in relation to the properties shown on Plaintiff's stipulated exhibit. I believe it's D -- F. Specifically lots 1 and lot 3-A? A Yes. Q Can you tell me when, and the nature of the work you were hired to do there? A I believe the project started July of 2000. The scope of the project was to install a pond. It would have a bridge, a couple waterfalls, a gazebo in the area of lot 3-A. Q Were you also hired to put a fence in for Mr. Turban in conjunction with this project? 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A be located? A Yes, that was a part of the project. How was it determined where the fence was to Before I would start the project, I told Mr. Turban I would have to have a survey done so the property lines were. in 2000? Q And did he have a survey done Yes, he did. Mr. DeAngelo. He did the survey for Mr. Yes. I knew where for you? Mike DeAngelo. Turban? And were you provided with that recent survey A That's correct. Q Was all of your work done within the boundaries of property identified by Mr. DeAngelo as property of Mr. Turban? A No, it wasn't. placed? A I was there every day Mr. DeAngelo was and looked at all of the pin placements as he was putting them in. Q Did you ever see an actual copy of a survey committed to paper by Mr. DeAngelo in 2002 -- 2000? A No. No, I didn't. Q But you worked based on the pins that he 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Why not? A At the time of the project Mr. Turban had related to me that he had been in contact with the church, and there was some areas out front -- Q Can you mark them with the red marker? A That's what I was looking, to get my bearings here, here; where we're at. is that correct? His house Q Okay. I believe his house is over is on lot 1. Okay. There's a -- Do you see the drive? Yes. Okay. Okay. The drive right here. The area in question would be down by the sidewalk coming in. We had placed some boulders and some soil in here. I think there's one other spot down here in this other offset that we had some boulders and some soil from the excavation process. Q Okay. So at the time you placed these, you knew those parcels where you were putting the improvements were not Mr. A Q A it wasn't his property. Turban's property? Yes. Did you do that at Mr. Turban's direction? Yes, I did. After noting, I might add, that Okay? 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Well, wasn't his property, What do you mean? we had a discussion about -- that that and I wanted to make sure that I would not get in the middle of a situation with the church doing something to their property. That's why I had the survey done in the done in the Q A of. assumed. first place or wanted him to have the survey first place. Okay. So he assured me that was being taken care Q What do you mean it was taken care of? Talking to the church to get permission, I Q Did your equipment utilize the church driveway off of Creek Road and go across the church parking lot to get to Mr. Turban's lot 3-A or to his lot 17 A Yes. Q Okay. Did Mr. Turban make any representations to you about the appropriateness or necessity of doing that? A doing that, Q A landscape project I told him we couldn't do the project without and I asked him -- Without what? I told him we wouldn't be able to do his without getting permission from the 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 church. He assured me that had been done. Q Is there any way you could have mistaken his to you about obtaining that permission? No. It was a direct question. What do you mean it was a direct question? I asked him directly if it was okay that representations A Q A I go knew he was a pastor, but I never put two that that was his church, until he walked out that day and I saw that he was there. We shook hands, and I thanked him for allowing me to use the church parking lot. Q permission? A Did he say anything to you about that Well, he mentioned to me, as I recollect, it A morning? A I and two together, across their property. Q Did he say it was okay with him or it was okay with the other parties? A He merely said it was taken care of. It was okay. He did not specify. Q Was there an occasion when you entered church property with some equipment and saw Pastor James Noss, who testified earlier this morning? Yes. Were you expecting to see Paster Noss that 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was a long time ago, that he wasn't sure -- he didn't give permission. He didn't give me permission. He didn't give Mr. Turban permission, but he didn't specify anything. He just said, okay, and I went about my business. Q Did you have a conversation with Pastor Noss after you had done some of the work that day? A I don't recollect that day, no. Okay. Did you have a meeting with Pastor Noss in his office at the church property? A This was some time afterwards, after some of the trucks and stuff had come in. Q Now, when you say some time afterwards, a day? Two days? A week? A month? A year? A No, it had to be a couple weeks, to my recollection. Q A parking lot and possible damage And what was the nature of your conversation? It had to do with the big trucks in the to the parking lot. Q particular? A limit our use Were you given instructions to do anything in them that would come in, we wanted to do it on make wide turns so as not to mar the finish of lot. At that point he said at the completion What we had talked about was that we would of the trucks coming in the property. Any of cool days and the parking of the job we 8 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 5 would like to be --- to the way it was before we started, Q What kind of equipment through the church parking lot to Mr. have it scrubbed off so it was returned which we did. did you bring in Turban's property? there was two different types of in were smaller larger trucks A Well, equipment. The stuff we actually brought trucks and trailers. However, there were trailers brought in by Hempt Brothers, and also by a track loader and a subcontractor with a -- that had a And was that done at your request? Yes. To complete the job? Yes. Did the traversing of the parking the finish, the surface of the backhoe. Q A Q A Q equipment change parking lot? A I know on and lot by that church two occasions when we were doing Q project then? A Right. We You didn't sprayed the whole parking lot. do anything until the end of the the stone that it roughed up the surface and created some loose stones. Q Are those the stones you spray them off at the end? that got spray -- did 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Well, we swept it, but we didn't clean it completely until we were done. Q Okay. I'm going to show you a document. Can you tell me what those are? A I'm assuming these are the tickets for the stone that was brought in. Q Do you know or are you assuming? A Well, I'm looking at them. Q Okay. A And they have the right timeframe. I can't testify that they're the right weight because I don't remember, but yes. Q Okay. Do these appear to be the tickets you had from Hempt Brothers for the job? A Yes. They have my signature on them. Q Can you tell me approximately how many tons of stone or tons of equipment went across that parking lot? A These trucks are 34 tons. That would have been the heaviest piece of equipment that was on there, I would think, were the dump trucks. Q And that was loaded or unloaded weight? A That's loaded weight. Q I'm going to ask that these be marked as Plaintiff's 4. (Whereupon, Plaintiff's Exhibit No. 4 was 10 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 marked for identification.) BY MS. DISSINGER: Q Have there been any repercussions to you as a result of your involvement in this lawsuit, Mr. Langeletz? A I can't say for sure, but shortly after I got my subpoena my office window was shot out, in the same time frame. I can't tell you what day it was because I didn't think anything of it, but it was only my window. It was seven shots. There wasn't any other damage done to my facility. My office window. MS. DISSINGER: I have no other questions. CROSS EXAMINATION BY MR. ABRAMS: Q Turban's attorney. Is it correct that you and Mr. have not yet settled up on some change orders? A That's correct. Q And approximately how much is claim that Mr. Turban owes you for this -- is project that we're talking about that he owes Mr. Langeletz, I'm Chip Abrams. I'm Mr. Turban A Right, right. About $9600.00, any financial charges or anything like that. it that you this the same you money for? not counting Q And am I correct that he and you have a dispute as to whether this was properly authorized, and is that the nature of your dispute? 11 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A know it was Q basic -- A Q A Q I don't have any dispute with it at all. authorized. What was the basic contract amount for the 45,000. And are you paid that 45,000? That is correct. And you say that the work that you did was within -- with the exception of those three spots you identified right here along the driveway right up here with respect to the rock garden, all of the work except for that work there was within the confines of the Turban property? A That's correct. That's why I never completed the fence. We left the orange temporary fence up because at the time he still wanted to run it to the house, and I wouldn't run it to the house because at that time I knew there was a dispute. Q In other words, you didn't want to run an orange fence on this line? This is the line that runs from the parking lot -- at the north end of the parking lot to -- over to lot number 1, that panhandle lot? A A of the house. I think the house actually is in Yeah, this runs up to it, yeah. So it would be from this point this here. to the corner So it would be crossing this section right 12 6 7 8 9 10 11 12 13 14 15 16 17 ~8 19 20 21 22 23 24 25 here. Q I see. So it was because of this corner? That's correct. Being in dispute. I see. Mr. Langeletz, what were the circumstances -- when was there shots fired at your office? When was that? A I don't have the exact date because I didn't even think anything of it. Q Oh. A I mean it was just a matter -- it was just a question she asked me. It was sometime in the time frame of when I got my subpoena. And you got your subpoena from Ms. Dissinger? That's correct. You didn't get any subpoena from Mr. Turban, Q did you? A Q That's correct. And when she asked you whether -- am I understanding correctly it's when you got her subpoena, you associated that with shots fired -- A No, I didn't say that. What I said was -- she asked me if any repercussions had occurred, and I said when I got that, the only thing I could think of was that I had my window shot out. I Didn't relate it at all until she asked the question, quite frankly. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. After you power washed the parking lot, were you satisfied that any mud or any marking of your equipment on that parking lot had been washed away? A Yes. MR. ABRAMS: No further questions. REDIRECT EXAMINATION BY MS. DISSINGER: Q In hosing off the parking lot, did you also hose off some of the finish that was on there when your trucks first came in? A As I stated before, there was probably some loose stones that were washed away with that, yes. Q Now, Mr. Langeletz, you said you did some landscaping work on certain corners of the church property at Mr. Turban's request, and that was July of 2000; is that correct? A Probably closer to August, I would think. Q And your testimony is that some of it was done over here at the corner of lot 2? A I believe so, yes. Q And on both sides of this walkway that goes from the drive to Turban's property? A work, I believe so, yes. When you first arrived on the site to do this what appearance did this little section of the corner 14 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 of lot 2 grassy? have? A Q As I recall, they were grassy areas. Was the area on both sides of the walk also A As Q So shrubbery there when you first August of 2000? A The only thing -- no, I recall, yes. there had been no landscaping done or started work in July or not in those areas. There was some shrubbery, I believe, up against the house, tree, I think, on the one Okay. Thank you. I have no but other -- and over the walnut side of the sidewalk. MS. DISSINGER: other questions. RECROSS EXAMINATION BY MR. ABRAMS: Q sidewalk there -- was Two questions. Was the the sidewalk existing? A Yes. Q And referring to Plaintiff's Exhibit Number were the rocks that you placed on the property here, were they roughly in the same position as the original rocks were on -- as shown on Plaintiff's Exhibit 17 This may be a better shot for you, Tim. A I think that's pretty close, yeah. 15 1 2 3, 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 questions. MR. ABRAMS: Thank you. No further MS. DISSINGER: (Whereupon, the Langeletz concluded.) MS. DISSINGER: I have no other questions. THE COURT: Thank you. MS. DISSINGER: May this witness be excused? THE COURT: Unless there's an objection. MR. ABRAMS: No objection. Thank you. testimony of Timothy 16 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date Kevi/A. Hess, J. N~ Judicial District 17 Lawrence B. Abrams, Esquire Attorney I.D. No. 18028 James J. Jarecki, Esquire Attorney I.D. No. 89580 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant EBERLY'S MILL CHURCH OF GOD, Plaintiff VS. JAMES TURBAN, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-3660 DEFENDANT'S MOTION FOR POST TRIAL RELIEF AND NOW Defendant, James Turban, by and through his counsel, Rhoads & Sinon LLP, files the within Motion for Post Trial Relief, and avers as follows: 1. This case was tried before the Honorable Kevin Hess on August 18, 2003. 2. On December 5, 2003, the Honorable Kevin Hess returned an Order and Opinion in favor of Plaintiff, Eberly's Mill Church of God, for $l.00 in Ejectment. 3. Respectfully, the Honorable Kevin Hess committed error by: (1) declining to resolve Defendant's unrebutted evidence that Plaintiff's unauthorized extension of its Church parking lot to Defendant's driveway causes the "block of the driveway" complained of by Plaintiff and causes the intrusion most offensive to the Defendant; and (2) not determining that 498890.2 easement appurtenant or at least a negative covenant by implication was created over the Plaintiff's fee interest in the East Lawn. The Order and Ooinion of the Honorable Kevin Hess makes no findin~ as to the leaality of this easement extension. 4. Paragraphs 1 through 3 are incorporated herein by reference. 5. In ¶36 of Defendant's Answer and New Matter, Defendant averred the following: The Right of Way Agreement extends no benefit to the Original Church Property. Nevertheless, without Mr. Baer's written permission of record, Plaintiffpaved over thc entire stone drive and the rear part of the yard behind the "Stone Drive" and connected the Hart Driveway to its commemial sized parking lot by paving and began using the Hart Driveway as Church access, without the written, recorded consent or permission of Defendant's predecessor in title or Defendant. 6. Defendant specifically requested relief as follows: In equity, Defendant requests the Court to enjoin Plaintiff to remove the driveway to its parking lot from Lot 3. 7. The Court's only announcement on this issue was as follows: The defendant has asserted that the extension of the driveway of Lot No. 3 into the church parking lot somehow constitutes a defense to an action in ejectment with respect to lands of the plaintiff. These are entirely separate matters and we simply do not understand the connection. q2- 8. The Defendant asserted "the unlawful extension of the driveway" as a defense to Plaintiff's ejectment claim because the extension is unlawful and, if the extension were eliminated, the Defendant would have space to park his cars without "blocking" the Plaintiff. The Plaintiff's unlawful connection creates an impossible parking dilemma for the Defendant and its use of the right of way as the Church driveway is a very offensive intrusion to the Defendant. 9. Defendant proved that Plaintiff and his predecessor shared a stone parking area between their houses under a written Right of Way Agreement. 10. Defendant proved that Defendant's predecessor (Mr. Baer) and his boarders routinely parked two (2) and sometimes three (3) cars on the stone parking area and Plaintiff's witness admitted that he saw the boarders' cars parked in the stone parking area over the years. 1 l. Defendant proved that Plaintiff connected the two parking areas without Defendant's predecessor's written consent or any other amendment to the Agreement. Defendant proved that the paving was done while Mr. Baer was in the hospital. 12. Defendant cited established Pennsylvania case law as authority that the burden of a Right of Way may not be unilaterally enlarged. l 3. Defendant proved that Plaintiff's extension of the shared driveway right of way to its Church parking lot leaves no room for Defendant to park his cars on his side of the parking area. WHEREFORE, Defendant respectfully requests this Court grant his Motion for Post Trial Relief, and render an Order and Opinion regarding the Plaintiff's unauthorized extension of a -3- driveway from its Church parking lot to the stone parking area. In the alternative, Defendant requests this Court grant a new thal on the issue of whether the Plaintiff's extension and pavement of the driveway easement was lawful. II. 14. The Court Erred by Failine to Find an Easement Al~purtenant or, at least, a Negative Covenant by Imlffication was Created Coverin~ the East Lawn. Paragraphs 1 through 13 are incorporated herein by reference. 15. The Court thoughtfully and accurately determined that the Right of Way Agreement and an easement by implication protected the Defendant's sidewalk from Plaintiff's hostile obstruction. 16. Defendant proved that a negative covenant such as "Plaintiff shall not use the East Lawn in a hostile manner or inconsistently with Defendant's residential use of Lot 1" or "Plaintiff shall not pave the East Lawn as an extension of its commercial parking lot" could be inferred from the circumstances of the grant from the parties' original Grantor. 17. The Judge committed error by not determining that an easement appurtenant or, at least, a negative covenant by implication was created covering an area of the East Lawn greater than just the width of the sidewalk between the stone parking area and Lot 1. 18. Such negative covenant would implement the Court's suggestion that Plaintiff remove the offensive fence presently along the edge of the East Lawn which it has not removed to date despite Defendant's request that it do so to normalize the look of the properties.. -4- WHEREFORE, Defendant respectfully request that this Court grant Defendant's Motion for Post-Trial Relief or, in the alternative, grant Defendant a new trial on the issue of whether an easement appurtenant, or at least a negative covenant by implication was created covering the entire East Lawn. Dated: Respectfnlly submitted, Lawrence B. Abrams James J. Jarecki One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant 498890.2 CERTIFICATE OF SERVICE I hereby certify that on this / ~d'ay of ~oC_.o/l~hoA, 2003, a true and correct copy of the foregoing Defendant's Motion for Post Trial Relief was served by means of United States mail, first class, postage prepaid, upon the following: Mary A. Etter Dissinger, Esquire Dissinger and Dissinger 28 North 32na Street Camp Hill, PA 17011 EBERLY'S MILLS CHURCH OF : GOD, Plaintiff VS. JAMES TURBAN, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA O2-366O CIVIL CIVIL ACTION - LAW IN RE: DEFENDANT'S MOTION FOR POST-TRIAL RELIEF ORDER AND NOW, this ! ~' * day of December, 2003, argument on the motion of the defendant for post-trial relief is set for Thursday, January 22, 2004, at 9:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. A brief shall be filed on behalf of the defendant not less than five (5) days prior to the argument. A brief shall be filed on behalf of the plaintiff not less than three (3) days prior to the argument. BY THE C. OURT, wl~aren L. Koenigsberg, Esquire For the Plaintiff v'Lawrence B. Abrahms, Esquire For the Defendant :rim K/~A. }tess, J. ,%,'j. Ci~OHLO~d .~HJ..40 EBERLY'S MILL CHURCH OF : GOD, : Plaintiff : VS. JAMES TURBAN, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3660 CIVIL CIVIL ACTION - LAW 1N RE: DEFENDANT'S MOTION FOR POST-TRIAL RELIEF BEFORE HESS, J. ORDER AND NOW, this /O ~' day of March, 2004, the motion of the defendant for post-trial relief is GRANTED as follows: The plaintiff shall remove or block the paved driveway extension between the church parking lot and the parking area on Lot 3 at its sole cost and expense and shall, in any event, immediately cease and desist from using said extension. BY THE COURT, Mary Etter Dissinger, Esquire For the Plaintiff Lawrence B. Abrahms, Esquire For the Defendant :rim VA. Hess, J. EBERLY'S MILL CHURCH OF : GOD, : Plaintiff : VS. JAMES TURBAN, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3660 CIVIL CIVIL ACTION - LAW IN RE: DEFENDANT'S MOTION FOR POST-TRIAL RELIEi~ BEFORE HESS, J. OP1NION AND ORDER On December 5, 2003, this court entered an order in ejectrnent. In that order we determined that the plaintiff is the undisputed owner of the property located at 113 Creek Road, Camp Hill, Cumberland County, Pennsylvania, as further described in a deed to Ebefly's Mill Church of God, recorded in Deed Book 109, Page 812, in the Cumberland County Recorder of Deeds Office. On December 18, 2003, the defendant filed a motion for post-trial relief. In that motion, the defendant alleges that we erred, inter alia, by (1) declining to resolve the defendant's counterclaim that the plaintiff had improperly extended a right-of-way into its church parking lot, and (2) in failing to hold that the defendant enjoyed an easement over the entire "east lawn." The post-trial motions have been subsequently argued. With regard to the second issue, we continue to be satisfied with our disposition. Specifically, we believe that case law was properiy applied and in a determination that the defendant has an easement over a walkway from the parking area to his property line but does not have am easement over all of the land abutting the walkway. 02-3660 CIVIL We agree with the defendant with respect to the first issue raised. We are satisfied that we erred in not making any finding with regard to the defendant's counterclaim and now agree with him that the extension of the right-of-way is improper. The Plaintiffpossesses two lots collectively known as 113 Creek Road. The defendant owns an adjoining lot. The plaintiff and defendant share a parking area. There is access to the parking area from Cedar CliffDrive by virtue of a driveway. The driveway extends over lands of both the plaintiff and defendant and is, at least at one point, entirely on the land of the defendant. In 1994, the predecessors in title of both the plaintiff and the defendant entered into a right-of-way agreement in essence providing access to both of their properties to their mutual benefit. Following the purchase of the property at 113 Creek Road, the plaintiff, Eberly's Mill Church of God, extended its driveway on the church property so that it connected with the driveway heretofore mentioned. As a result of that connection, traffic now passes over land of the defendant not only to the property at 113 Creek Road but also to the church parking lot. Neither the church nor any predecessor in title was party to the 1994 right-of-way agreement affecting 113 Creek Road and the property of the defendant, 1 Cedar Cliff Drive. According to our appellate courts, an easement which benefits a particular piece of land cannot be enlarged or extended to other parcels of land to which the right is not attached. Owens v. Holzhied, 335 Pa. Super. 231,240, 484 A.2d 107, 112 (1984) citing Percy A. Brown & Co. v. _Raub, 357 Pa. 271, 54 A.2d 35 (1947). This proposition is particularly logical when the right-of- way, as in this case, is, at least at one point, solely on the land of the defendant who does not consent to the extension. In the instant case, the right-of-way agreement granted the parties the mutual right to use the original driveway for ingress, egress, and regress. There is no mention in the right-of-way 2 02-3660 CIVIL agreement of any right to extend the right-of-way. The plaintiff's extension of the stone driveway would allow church members to enter and leave the church parking lot which is on a parcel of land which was never part of the original lands involved in the right-of-way agreement. Furthermore, it is generally tree that easements may not be modified, changed, altered, or relocated without the consent of both the dominant and servient estates. Soderberg v. Weisel~ 455 Pa. Super. 158,687 A.2d 839 (1997), citing Pennsylvania Water and Power Co. v. Reigart, 127 Pa. Super. 600, 193 A. 311 (1937). In Soderberg, the court went on to note: However, there is no per se prohibition against a landowner relocating a prescriptive easement unless such action completely denies the easement holder the intended use of the original easement. Rather, courts employ the test of whether the relocation will unreasonably interfere with the easement holder's use and enjoyment of his right- of-way. What constitutes unreasonable interference on the part of the servient owner depends upon the owner and his desired use, as well as the disadvantage to the owner of the easement. Soderberg v. Weisel, at 842. This case, of course, does not involve the relocation of an easement. Nonetheless, by connecting the easement to the church parking lot, the servient owner has substantially changed or altered the nature of the easement. Mr. Turban no longer enjoys a driveway into the parking area but, instead, has had his driveway changed into a church entrance. We will, accordingly, grant the defendant's post-trial relief, at least in part.~ t The defendant has raised and briefed one or two other issues but we are satisfied that these matters are moot in light of our ruling on the matter of the east lawn. The defendant also seeks permission to park a specified number of vehicles in the parking area. We decline to specify a number. The sole obligation of the defendant in this regard is to refrain from interfering with the right-of-way enjoyed by the owner of 113 Creek Road. 3 02-3660 CIVIL AND NOW, this to relief is GRANTED as follows: ORDE~RR day of March, 2004, the motion of the defendant for post-trial The plaintiff shall remove or block the paved driveway extension between the church parking lot and the parking area on Lot 3 at its sole cost and expense and shall, in any event, immediately cease and desist from using said extension. BY THE COURT, Mary Etter Dissinger, Esquire For the Plaintiff A. Hess, J Lawrence B. Abrahms, Esquire For the Defendant :rim 'S MILL CHURCH OF GOD, Plaintiff vs. TURBAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA CIVIl, ACTION AT LAW NO. 02 -3660 PETITION FOR COntEMPT and PETITION FOR ATTOR_NEy, S FEES AND NOW comes Eberly's Mill Church of God, Plaintiff, by and ~hrough its attorneys, Mary A. Etter Dissinger and Dissinger & and files a Petition for Contempt and Petition for r's Fees and in support thereof avers as follows: 1. Plaintiff is Eberly's Mill Church of God with a place of ss at 115 Creek Road, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant is James Turban, his principle address is 1 ~edar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania. 3. On July 31, 2002, Plaintiff filed a Complaint in Trespass ~nd Complaint in Ejectment against Defendant. 4. On September 3, 2002, Defendant filed an Answer, New Matter and Counterclaim against Plaintiff alleging trespass, breach of contract, nuisance and a count in equity. 5. Plaintiff,s cause of action was based on the fact that Defendant had usurped a portion of Plaintiff,s property located ~t 113 Creek Road for his own purposes and caused the Plaintiff to lose full use and enjoyment of its property. 6. On December 5, full trial. A copy of 2003, Judge Hess issued an Order after a that Order is attached hereto as Exhibit 7. The Order of December 5, 2003, directed that the Defendant and all future owners of the property located at 1 Cedar Cliff Drive, Camp Hill, shall cease using or entering any of the property within Plaintiff,s boundaries except for that property specifically set forth in the a Right of Way Agreement dated June 29, 1994. 8. The Order of December 5, 2003, also directed that Defendant shall abide by the Right of Way Agreement and only use the portion of Plaintiff,s property set forth in the Right of Way Agreement for the specific purpose of ingress and egress and shall park his vehicles so as not to obstruct the Plaintiff,s use of the Right of Way for ingress, egress and regress. 9. On or about December 17, 2003, Defendant filed a Motion for Post-Trial Relief. 10. After argument on the Motion, the Honorable Judge Hess entered an Order and Opinion dated March 10, 2004, affirming his earlier decision that the Defendant has an easement Over a walkway from the parking area to his property line, but does not have an easement over all of the land abutting the walkway. 11. The Order of March 10, 2004, granting in part Defendant's for Post-Trial Relief did nothing to abrogate Defendant,s duty under the Order of December 5, 2003, to cease using or entering any of the property within the boundaries of the Plaintiff,s property. 12. As of this date, Defendant has failed to abide by the of December 5, 2003, and is in contempt of that Order in that he has failed to remove the plants, shubbery and landscaping accessories that he installed on Plaintiff,s property without Plaintiff,s permission and has failedl to restore the property to its original condition. 13. Plaintiff's counsel has made at least four (4) written requests to Defendant,s counsel since March 31, 2004, asking that arrangements be made for Defendant to remove the plants, shrubbery and landscape accessories from Plaintiff,s property. 14. The removal of those items was also discussed in numerous telephone calls between counsel. 15. Defendant has willfully failed to comply with the Order of Court of December 5, 2003, and should be held in contempt for his noncompliance. 16. Since the entry of the ]December 5, 2003, Order, Defendant has exhibited dilatory, obdurate and vexacious conduct. 17. More specifically, Defendant has made no attempt to remedy his trespass onto Plaintiff's ]property by following the Order to remove his lawn decorations and plantings. 18. Defendant has failed to take any steps to restore the area to its original conditions prior to his trespass. 19. Defendant and his visitors have continued to trespass Dn Plaintiff's property by using the through way from the church Iparking lot to the area where the original stone drive was located by driving around the blockade that Plaintiff erected in ~ccordance with the March 10, 2004, Order. 20. A portion of Defendant,s original Counter claim against ~laintiff was based on the fact that he did not want traffic ~raveling from the church parking lot to the area where the ~riginal stone drive was located. 21. This court, on March 10, 2004, issued an Order instructing Plaintiff to remove or block the paveway extension between the church parking lot and where the original Stone drive located. 22. The Plaintiff abided by this Order and promptly erected barrier so that traffic could not pass through from the parking to the original stone drive location. 23. Though it was at Defendant,s urging that traffic not be Iermitted to pass from the parking lot to the original Stone drive Location, Defendant and his visitors continue to do this by around the blockade and throug~h Plaintiff,s grass. 24. Since the entry of that Order, which granted in part the that Plaintiff Sought, Defendant has done nothing but complain about the barrier that was erected in accordance with the ~ourt Order. 25. Defendant,s dilatory, obdurate and vexacious conduct has the Plaintiff to incur attorney, s fees since the entry of zhe March 10, 2004, Order in an amount anticipated to be $2 500 00 Dr more. , · 26. Had Defendant complied with th,e Court Order of December 2003, and was satisfied with Plaintiff,s compliance with the 10, 2004, Order, these attorney's fees would not have been incurred by Plaintiff. 27. Given Defendant's history of non-compliance and disregard for the Court's direction, Plaintiff would be willing to make arrangements to have Defendant,s plants, shrubbery and lawn ornaments removed, provided that Defendant be required to pay for all costs involved in that process. WHEREFORE, Plaintiff requests that an Order be issued that: [. finds Defendant in contempt of the Order of December 5, 2003 and imposes appropriate sanctions; 2. orders Defendant to remove his plants, shrubbery and lawn ornaments from Plaintiff's property within ten (10) days; and 3. awards attorney's fees to Plaintiff in an amount of at least $2,500.00. Respectfully submitted: DIS:SINGERAND DISSINGER - Ten L. Koeni~berg ~upreme Court ID# 85556/ Marly A. Etter Dissinger/ Supreme Court ID #27736 Attorney for Plaintiff 28 N. 32nd Street Ca~) Hill, PA 17011 (717) 975-2840 VERIFICATION I, Robert Fox, verify that the statements made in the [oregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification. Eberly's Mill Church of God EB~RL¥'S MILL cHuRcH OF GOD~ plaintiff VS. jAMES TURBAN, Defendant IN TI-EE COURT OF cOMMON PLEAS OF CUMBERLAND coUNTY, pENEqSYLYANIA 02-3660 CIVIL : CIVIL ACTION - LAW of December, 2003, it is hereby ordered and decreed that AND NOW, this ff~ day Creek Road, Camp Hill, owner of the property located at the plaintiff is the undisputed described in the deed to Eberly' s Mill Church of cumberland CountY, Pennsylvania, as further cumberland CountY Recorder of Deeds God and recorded in Deed Book 109, Page gl2 in the in trespass and e~ectment in the Office. The defendant is liable to the plaintiff for darnages directed that the defendant and all future owners of the amount of $1.00. It is further ordered and Camp Hill, cumberland County, neighboring proper~ located at l Cedar Cliff Drive, or entering any of the property within the boundaries of the permsyNama: l. Shall cease using set forth in the Right-of- plaintiff s aforementioned deed except for that property specifically Way Agreement dated June 29, 1994, as defined on Trial Exhibit F, and vdth the right of access over a pathway from said right-of-waY to the rea': of the home on Lot No. l; and ,/Agreement and only use the portion of property set ...... ,.~ Rioht-of-Wa. ~ and shall park 2. Shall abtae t)~ uL~ ~ . _~ ~.¢ ineress, egre~, forth in the Right-of-Way Agreement for the spectfic purpos¢~ '~' OF GOD, S MILL CHURCH Plaintiff IN THE COURT OF COMMON PLEAs OF C~BERLAND COUNTY OF PENNSYLVANIA : CIVIL ACTION AT LAW TURBAN, : NO. 02-3660 Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE III, same follows: I, Karen L. Koenigsberg, do hereby certify that a copy of the document has been duly served upon Lawrence B. ~Lbrams, Esquire, attorney for Defendant, James Turban, by depositing in the United States Mail, postage prepaid, addressed as Lawrence B. Abrams, III, Esquire Rhoads & Sinon, L.L.P Twelfth Floor One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 [oeni~sberg Attorney for Plaintiff EBERLY'S MILL CHURCH : GOD, : Plaintiff : VS. : TURBAN, : Defendant : IN THE COURT OF COMMON PLEAS OF C~MBERLAND COUNTY OF PEiNNSYLVANIA CIVIL ACTION AT LAW NO. 02-3660 ORDER OF COURT AND NOW, this ~& ~ day of ~J~c~o , 2004, rule is issued upon Defendant herein to~show~ccause why Plaintiff's within Petition for Contempt and Petition for y's Fees should not be granted. Rule returnable at hearing scheduled for the at 9" 30 o' clock ~ .m. a ~-~ day of ~ , 2004, at the Cumberland County Courthouse. BY THE COURT: /-- EBERLY'S MILL CHURCH OF GOD, VS. JAMES TURBAN, Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CiVIL ACTION AT LAW NO. 02-3660 NOTICE TO PLEAD TO: Eberly's Mill Church of God c/o Mary A. Etter Dissinger, Esquire 28 North 32nd Street Camp Hill, PA 17011 You are hereby notified to file a written response to the enclosed Counterclaim, within twenty (20) days from service hereof or a judgment will be eutered against you. Respectfully submitted, Dated: RHO~d2~S & SINON LLP ^ BY:L ~re~ce B. Abran(s } Es~l~ire Atto~'rleyI.D. No. 18~28 James J. Jarecki, Esquire Attorney I.D. No. 89580 One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Lawrence B. Abrams, Esquire Attorney I.D. No. 18028 James J. Jarecki, Esquire Attorney I.D. No. 89580 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harhsburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant EBERLY'S MILL CHURCH OF GOD, Plaintiff VS. JAMES TURBAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION AT LAW NO. (}2-3660 DEFENDANT'S RESPONSE TO PiLAINTIFF'S PETITION FOR CONTEMPT AND ATTORNEY'S FEES AND NOW Defendant, James Turban, by and through his cotmsel, Rhoads & Sinon LLP, files the within Response to Plaintiff's Petition for Contempt and ttomey s Fees, and avers as A ' follows: itself. 1-4. Admitted. 5. Neither admitted, nor denied. Plaintiff's Complaint speaks for itself. 6. Admitted. 7-8. Neither admitted, nor denied. This Court's December 5, 2003 Order speaks for 9. Admitted. 10. Admitted with clarification. This Court's March 10, 2004 Order speaks for itself. By way of further response, this Court's Order expressly stated, "The Plaintiff [Eberly's Mill Church of God] shall remove or block the paved driveway extension between the chumh parking lot and the parking area on lot 3 at its sole cost and expense; and shall, in any event, immediately cease and desist from using said extension." (A true and correct copy of this Court's March 10, 2004 Order is attached hereto as "Exhibit A".) 11. Denied. To the contrary, the Court's March 10, 2004 Order required Eberly's Mill to remove or block the paved driveway extension between the chumh parking lot and the parking area used by Defendant. 12. Denied. To the contrary, Defendant has removed nearly all plants, shrubbery and landscaping accessories installed on the Plaintiff's property. Defendant is in the process of having the remainder of the East Lawn restored to its original condition. 13-14. Admitted. 15. Denied. See paragraph 12. By way of further response, Defendant should not be held in contempt because he is in compliance with this Court's December 5, 2003 Order. 16-18. Denied. See paragraph 12. 19. Denied. It is strongly denied that either Defendant or any of his visitors access the Defendant's property by traveling over Eberly's Mill's property and driving around the erected blockade. 20. 21. 22. Neither admitted, nor denied. Defendant's counterclaim speaks for itself. Admitted. Denied. It is strongly denied that Plaintiff has abided by this Court's Order. As discussed more thoroughly in Defendant's Counterclaim, Eberly's Mill erected the blockade in such a manner as to: (a) encroach upon Defendant's driveway by placing the barrier approximately 8 to 10 feet away from the paved driveway extension; and (b) only partially barricaded the driveway so as to leave an opening large enongh for Plaintiff's tenant (located on -2- church property at 113 Creek Road, Camp Hill, Cumberland County, Pennsylvania) and church patrons to drive around the blockade through Defendant's (hfiveway. 23. Denied. See paragraph 19. 24. Denied. Defendant is unaware of what Plaintiff means by, "Defendant has done nothing but complain about the barrier." 25. Denied. Plaintiff's attorney's fees, if any, have been incurred solely because Plaintiff has willfully failed to comply with this Court's Max'ch 10, 2004 Order. 26. Denied. See paragraph 25. 27. Denied. See paragraph 12. WHEREFORE, Defendant respectfully requests this Court deny Plaintiff's Petition for Contempt and Petition for Attorney's Fees. COUNTERCLAIM Defendant incorporates herein by reference paragraphs 1 through 27 as if set forth 28. at length. 29. this matter. 30. Defendant has made a diligent effort to comply with this Court's Orders related to Defendant has undertaken at his own expense to remove the shrubbery and landscaping from the area designated the East Lawn. 31. Defendant anticipates having the remainder of the East Lawn entirely cleared of all landscaping and shrubbery within a reasonable period of time. 32. Contrary to Plaintiff's assertions that Defendant's conduct has been "dilatory, obdurate, and vexatious," this language actually describes Plaintiff's conduct. 33. Eberly's Mill has placed the blockade in such a manner as to: (a) encroach upon Defendant's driveway by placing the barrier approximately 8 to 10 feet away from the driveway extension; and (b) only partially barricaded the driveway st) as to leave an opening large enough for Plaintiff's tenant (located on church property at 113 Creek Road, Camp Hill, Cumberland County, Pennsylvania) and church patrons to drive around the blockade through Defendant's driveway. 34. As evidenced by the attached photographs, it is clear that the blockade leaves an open space for Plaintiff's tenant and churchgoers to travel around the blockade and over the Defendant's driveway. (See photos attached as "Exhibit B".) 35. Indeed, as recently as August 6, 2004, Defendant photographed the Plaintiff's tenant driving around the blockade from Defendant's property into the church parking lot. (See photos attached as "Exhibit C".) 36. Plaintiff is using the driveway extension to park automobiles and to hold church gatherings in the driveway extension, and is using the blockade as a sitting bench. (See photos attached as "Exhibit D".) 37. Defendant believes the vexatious conduct c,f Eberly's Mill will not cease. As such, Defendant is requesting a more specific Order from this Court, expressly requiring the removal of the paved driveway extension, with a precise location as to exactly where the driveway extension is to be removed. 38. In the alternative, if this Court will not order the removal of the extension, the Defendant respectfully requests that this Court Order the blockade be relocated precisely on the driveway extension, and not encroaching on Defendant's driveway. Furthermore, the Defendant requests an Order specifying the exact location of the blockade and that the blockade is to block 100% of the driveway extension. -4- WHEREFORE, Defendant respectfully requests the Court grant Defendant's request to issue an Order requiring Eberly's Mill remove the driveway extension, or in the alternative, place the blockade at the driveway extension and fully block all routes of ingress and egress. Dated: ~)l ll/01 Respectfully submitted, RHOADS & SINON LLP L~a~nce B . Ab~ns James J. Jarecki '~ One: South Market Square, Twelfth Floor P. O. Box 1146 Han:isburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant -5- EXHIBIT A EBERLY'S MILL CHURCH OF : GOD, : Plaintiff : VS. : JAMES TURBAN, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3660 CIVIL CIVIL ACTION - LAW IN RE: DEFENDANT'S MOTION FOR POST-TRIAL RELIEF BEFORE HESS, J. ORDER AND NOW, this /O relief is GRANTED as follows: day of March, 2004, the motion of the defendant for post-trial The plaintiff shall remove or block the paved driveway extension between the church parking lot and the parking area on Lot 3 at its sole cost and expense and shall, in any event, immediately c~ase and desist from using said extension. BY THE COURT, Mary Etter Dissinger, Esquire For the Plaintiff Lawrence B. Abrahms, Esquire For the Defendant :rim tRUE COPY FROM RECORI) tn Te'al'tmony w. herec~, I here unto sal my han~ aad ~l seal of saki Cou~ al Ca~,le, Pa.. r · Prothonoja~ EBERLY'S MILL CHURCH OF GOD, Plaintiff VS. JAMES TURBAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 02-3660 CIVIL : CIVIL ACTION -/,AW 1N RE: DEFENDANT'S MOTION FOR POST-TRIAL RELIEF BEFORE HESS, J. OPINION AND ORDER On December 5, 2003, this court entered an order in ejectment. In that order we ~etermined that the plaintiff is the undisputed owner of the property located at 113 Creek Road, Camp Hill, Cumberland County, Pennsylvania, as further described in a deed to Eberly's Mill Church of God, recorded in Deed Book 109, Page 812, in the, Cumberland County Recorder of Deeds Office. On December 18, 2003, the defendant filed a motion for post-trial relief. In that motion, the defendant alleges that we erred, inter alia, by (1) declining to resolve the defendant's counterclaim that the plaintiff had improperly extended a right-of-way into its church parking lot, and (2) in failing to hold that the defendant enjoyed an easement over the entire "east lawn." The post-trial motions have been subsequently argued. With regard to the second issue, we continue to be satisfied with our disposition. Specifically, we believe that case law was properly applied and in a determination that the defendant has an easement over a walkway from the parking area to his property line but does not have an easement over all of the land abutting the walk, wry. 02-3660 CIVIL We agree with the defendant with respect to the first issue raised. We are satisfied that we erred in not making any finding with regard to the defendant's counterclaim anti now agree with him that the extension of the right-of-way is improper. The plaintiffpossesses two lots collectively known as 113 Creek Road. The defendant owns an adjoining lot. The plaintiffand defendant share a parking area. There is access to the parking area from Cedar CliffDfive by virtue ora driveway. The driveway extends over lands of bo.th the plaintiff and defendant and is, at least at One point, entirely on the land of the defefldant. In 1994, the predecessors in title of both the plaintiff and the defendant entered into ~ right-of-way agreement in essence providing access to both of their properties to their mutual benefit. Following the purchase of the property at 113 Creek Road, the plaintiff, Eberly's Mill Church of God, extended its driveway on the church property so that it connected with the driveway heretofore mentioned. As a result of that connection, traffic now passes over land of the defendant not only to the property at 113 Creek Road but also to the church parking lot. Neither the church nor any predecessor in title was party to the 1994 fight-of-way agreement affecting 113 Creek Road and the property of the defendant, 1 Cedar Cliff Drive. According to our appellate courts, an easement which benefits a particular piece of land cannot be enlarged or extended to other parcels of land to which the fight is not attached. Owens v. Holzhied, 335 Pa. Super. 231,240, 484 A.2d 107, 112 (1984) citing Percy A. Brown & Co. v. Raub, 357 Pa. 271, 54 A.2d 35 (1947). This proposition is pazticularly logical when the fight-of- way, as in this case, is, at least at one point, solely on the land of the defendant who does not consent to the extension. In the instant case, the right-of-way agreement granted the parties the mutual right to use the original driveway for ingress, egress, and regress. There is; no mention in the fight-of-way 2 02-3660 CIVIL agreement of any right to extend the right-of-way. The plaintiff's extension of the stone driveway would allow church members to enter and leave the church parking lot which is on a parcel of land which was never part of the original lands involved in the right-of-way agreement. Furthermore, it is generally true that easements may not be modified, changed, altered, or relocated without the consent of both the dominant and servient estates. Soderberg v. Weisel. 455 Pa. Super. 158,687 A.2d 839 (1997), citing .pennsylvania Water and Power Co. v. Reigart, 127 P.a. Super. 600; 193 A. 311 (1937). In Soderberg, the court went on to note: However, there is no per se prohibition against a landowner relocating a prescriptive easement unless such action completely denies the easement holder the intended use of the original easement. Rather, courts employ the test of whether the relocation will unreasonably interfere ,Mth the easement holder's use and enjoyment of his right- of-way. What constitutes unreasonable interference on the part of the servient owner depends upon the owner and his desired use, as well as the disadvantage to the owner of the easement. Soderberg v. Weisel~ at 842. This case, of course, does not involve the relocation of an easement. Nonetheless, by connecting the easement to the church parking lot, the servient owner has substantially changed or altered the nature of the easement. Mr. Turban no longer enjoys a driveway into the parking area but, instead, has had his driveway changed into a church entrance. We will, accordingly, grant the defendant's post-trial relief, at least in part.~ The defendant has rinsed and briefed one or two other issues but we are satisfied that these matters are moot in light of our ruling on the matter of the east lawn. The defendant also seeks permission to park a specified number of vehicles in the parking area. We decline to specify a number. The sole obligation of the defendant in this regard is to refi'ain from interfering with the right-of-way enjoyed by the owner of 113 Creek Road. 3 02-3660 CIVIL AND NOW, this dO relief is GRANTED as follows: ORDER day of March, 2004, the: motion of the defendant for post-thai The plaintiff shall remo~e or block the paved driveway extension between the church parking lot and the parking area on Lot 3 at its sole cost and expense and shall, in any event, immediately cease and desist from using said extension. BY THE COURT, Mary Etter Dissinger, Esquire For the Plaintiff /~i. Hess, J. Lawrence B. Abrahms, Esquire For the Defendant :rlm 4 EXHIBIT B EXHIBIT C To jjarecki@rhoads-sinon.com (Jim) cc bcc Subject Jim EXHIBIT D Jim To jjarecki@rhoads-sinon.com (Jim) CC bcc Subject Jim Tur CERTIFICATE OF SERVICE the foregoing Defendant's Response to Plaintiff's Petition for Contempt and Attorney's Fees was served by means of United States mail, first class, postage prepaid, upon the following: Mary A. Etter Dissinger, Esquire Dissinger and Dissinger 28 North 32nd Street Camp Hill, PA 17011 EBERLY'S MILL CHURCH OF GOD, : Plaintiff : VS. : JAMES TURBA/q, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY OF PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-3660 PETITION FOR CONTEMPT, PETITION FOR INJUNCTIVE RELIEF AND PETITION FOR ATTORNEY'S FEES A/qD NOW comes Eberly's Mill Church of God, Plaintiff, by and through its attorneys, Mary A. Etter Dissinger and Dissinger & Dissinger, and files a Petition for Contempt and Petition for Attorney's Fees and in support thereof avers as follows: 1. Plaintiff is Eberly's Mill Church of God with a place of business at 115 Creek Road, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant is James Turban, his principle address is 1 Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania. 3. On July 31, 2002, Plaintiff filed a Complaint in Trespass and Complaint in Ejectment against Defendant. 4. On September 3, 2002, Defendant filed an Answer, and Counterclaim against Plaintiff alleging trespass, contract, nuisance and a count in equity. New Matter breach of 5. Plaintiff's cause of action was based on the fact that Defendant had usurped a portion of Plaintiff's property located at 113 Creek Road for his own purposes and caused the Plaintiff to lose full use and enjoyment of its property. 6. On December 5, 2003, Judge Hess issued an Order after a full trial. A copy of that Order is attached hereto as Exhibit ~1". 7. The Order of December 5, 2003, directed that the Defendant and all future owners of the property located at 1 Cedar Cliff Drive, Camp Hill, shall cease using or entering any of the property within Plaintiff's boundaries except for that property specifically set forth in the a Right of Way Agreement dated June 29, 1994. 8. On August 23, 2004, Defendant entered Plaintiff's property and removed a portion of Plaintiff's fence and the fence posts, which were cemented in. Said fence was located entirely within the boundaries of Plaintiff's property. 9. Said actions are in direct violation of the Order dated December 5, 2003 and Defendant should be held in contempt of the Order and be enjoined from removing any fencing from Plaintiff's property. 10. Said actions constitute dilatory, obdurate and vexacious conduct which has and will cause the Plaintiff to incur attorney's fees in an amount anticipated to be in excess of $2,000.00. WHEREFORE, Plaintiff respectfully requests that Defendant be found in contempt of the December 5, 2003 Order, be enjoined from removing any fencing from Plaintiff's property, be ordered to return Plaintiff's fencing to its condition prior to August 23, 2004 and be ordered to pay attorneys' fees to plaintiff in an amount of at least $2,000.00. Respectfully submitted: DISSINGERAND DISSINGER ~a!~n L. Koen[~ts~erg II Supreme Court ID# 855%6 Ma~y A. Etter Dissinger Supreme Court ID #27736 AtJzorney for Plaintiff 28 N. 32nd Street Camp Hill, PA 17011 (717)975-2840 VERIFICATION I, Robert Fox, verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Robert Fox EBERLY'S MILL CHURCH OF GOD, Plaintiff VS. JAMES TURBAN, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PEt'CNSYLVANIA 02-3660 CIVIL CIVIL ACTION - LAW IN RE: ACTION IN EJECTMENT BEFORE HESS, J. ORDER AND NOW, this Sq day of December, 2003, it is hereby ordered and decreed that the plaintiff is the undisputed owner of the property located at 113 Creek Road, Camp Hill, Cumberland County, Pennsylvania, as further described in the deed to Eberly's Mill Church of God and recorded in Deed Book 109, Page 812 in the Cumberland County Recorder of Deeds Office. The defendant is liable to the plaintiff for damages in trespass and ejectment in the amount of $1.00. It is further ordered and directed that the defendant and ail future o~aaers of the neighboring property, located at 1 Cedar Cliff Drive, Camp Hill, Cumberland County, Permsylvarda: 1. Shall cease using or entering any of the property within the boundaries of the plaintiffs a~'orementioned deed except for that property specifically set tbrth in the Pdght-ot'- Way Agreement dated June 29, 1994, as defined on Trial Exh/bit F, and with the right of access o,,'er a pathway from said right-of-way to the rear of the home on Lot No. 1; and 2. Shall abide by the Pdght-of-Wa> Agreement and only use the portion of property set forth in the Pdgtxt-of-Way Agreement for the specific purposes of ingress, egress, and shall park so as not to obstruct the plaintiff's use of the right-of-way for ingress, egress and regress. BY THECOURT, Karen L. Koenigsberg, Esquire For the Plaintiff Ke~/lless, S. - Lawrence Abrams, Esquire For the Defendant EBERLY'S MILL CHURCH OF GOD, : Plaintiff : VS. : J~24ES TURB~N, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERL~ND COUNTY OF PENNSYLV~NIA CIVIL ACTION AT LAW NO. 02-3660 CERTIFICATE OF I~ERVICE I, Mary A. Etter Dissinger, do hereby certify that a copy of the foregoing Answer has been duly served upon the attorney for Defendant, James Turban, by depositing same in the United States Mail, postage prepaid, addressed as follows: Date: Lawrence B. Abrams, III, Esquire Rhoads & Sinon, L.L.P Twelfth Floor One South Market Square P. O. Box 11.46 Harrisburg, PA 17108-1146 ar~ L. Koeni~s~e~g /J ' :BERLY'S MILL CHURCH OF GOD, Plaintiff IN THE COURT OF COMMON PLEAS OF C~BERLD/qD COUNTY OF pE]~NSYLVkNIA VS. %MES TURBAN, : CIVIL ACTION AT LJIW Defendant : NO. 02-3660 ANSWER TO DEFENDANT'S COUNTERCLAIM AND NOW COMES the Plaintiff, Eberly's Mill Church of their attorneys', Dissinger and Dissinger, and files the following Answer and respectfully represents that: God, by 28. No answer is required. 29 DENIED. It is specifically denied that Defendant has made a diligent effort to follow this Court's Order related to this matter. 30. DENIED. It is specifically ~denied that Defendant has landscaping and Ilundertaken at his own expense to removE, the shubbery ~from the area designated as the East Lawn. 31. DENIED. It is specifically denied that Defendant anticipates to have the remainder of the lawn entirely cleared of all landscaping and shubbery within a reasonable period of time. By way of further answer, the Defendant was ordered to remove the landscaping and shubbery by Court Order dated December 5, 2003. It has been more than eight (8) months since that Order and Defendant has failed to abide by the Order. Over eight months is certainly not a reasonable period of time. 32. DENIED. It is specifically denied that, contrary to Plaintiff's assertions that Defendant's conduct has been "dilatory, obdurate, and vexatious," and this language actually describes ~laintiff's conduct. By was of further answer, Plaintiff has ~omplied with the Court Order and has not engaged in any dilatory, obdurate or vexatious conduct. 33. DENIED. It is specifically denied that Eberly's Mill placed a blockade in such a manner as to: (a) encroach upon Defendant's riveway by pacing the barrier approximately eight (8) to ten (10) eet away from the driveway extension; and (b) only partially /barricade~ the driveway so as to leave an opening large enough for IPlaintiff s tenant (located on church property at 113 Creek Road, ICamp Hill, Cumberland County, Pennsylvania) and church patrons to drive around the blockade through Defendant's driveway. By way of further answer, the blockade erected by Plaintiff is accordance with the Court Order is located entirely on Plaintiff's property and does not encroach upon Defendant's driveway in any manner. In addition, the blockade has an opening near the Plaintiff's tenant's property to allow for the Plaintiff's tenant, who is handicapped to walk from his home to the church. The opening is not large enough for vehicles to drive around the blockade without driving through the grass. Despite this, Defendant and Defendant's guests routinely drive around the barricade through Plaintiff's grass. 34. DENIED. It is specifically denied that the photographs attached to Defendant's Answer and Counterclaim clearly show that the blockade leaves an open space for Plaintiff's tenant and church goers to travel around the blockade and over Defendant's driveway. 35. Plaintiff is without sufficient information to either admit or deny the allegations in paragraph 35 and, therefore, said allegations are specifically denied. 36. DENIED. It is specifically denied that Plaintiff is using the [riveway extension to park automobiles and to hold church gatherings ~n the driveway extension and is using the blockade as a sitting .ench. By way of further answer, the blockade in the driveway ~xtension are entirely on the property owned by Plaintiff in fee. :yen if Plaintiff were using the driveway extension to hold church 3atherings, there is no prohibition against such use as Plaintiff is the undisputed owner of the property. 17. DENIED. It is specifically denied that Defendant believes that vexatious conduct of Eberly's Mill will not cease. By way of further answer, Eberly's Mill conduct is not and has not been vexatious in any way. By way of furtlher answer, Eberly's Mill is merely trying to exercise their property rights without the unwarranted interference by Defendant.. 38. No answer is required WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendant's request to issue an Order requiring Plaintiff to remove the driveway extension or in the alternative, place the blockade at the driveway extension and fully block all routes of ingress and egress. In addition, Plaintiff requests that Defendant's Counterclaim be dismissed and the court grant Plaintiff's Petition for Contempt and Petition for Attorney's Fees Respectfully Submitted: DISSINGER and DISSINGER By: ;3 ~a~n ~.~F~eni~s~erg- ~ ' /~ Supreme Court ID# 8555 Mary A. Etter Dissinger Supreme Court ID# 27736 Attorney for Plaintiff Supreme Court ID ~27736 28 North Thirty-second Street Camp Hill, PA 17011 (717) 975-2840 VERIFICATION I, Robert Fox, verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Robert ~ox' ~ :BERLY'S MILL CHURCH OF GOD, Plaintiff vs. tAMES TURBAiq, Defendant IN THE COURT OF COMMON PLEAS OF C~4BERLAND COUNTY OF pE~NSYLVANIA CIVIL ACTION AT LAW NO. 02-3660 CERTIFICATE OF S]ZRVICE I, Mary A. Etter Dissinger, do hereby certify that a copy of the foregoing Answer has been duly served upon the attorney for Defendant, James Turban, by depositing same in the United States Mail, postage prepaid, addressed as fellows: Lawrence B. Abrams, III, Esquire Rhoads & Sinon, L.L.P Twelfth Floor One South Market Square P. O. Box 1146 Harrisburg, PA 1'7108-1146 Date: ~a~en L. Koenlg~qerg - ~ ~ EBERLY'S MILL CHURCH OF GOD, Plaintiff vs. A/~ES TURBAN, Defendant IN THE COURT OF COMMON PLEAS OF CUM]BERLAND COUNTY OF pE~SYLVANIA CIVIL .ACTION AT LAW NO. 02-3660 ORDER OF COURT AND NOW, this Z~ ~ day of ~w , 2004, a rule _s issued upon Defendant herein to show cause why Plaintiff's within ~etition for Contempt, Petition for Injunctive Relief and Petition [or Attorneys' Fees should not be granted. Rule returnable at the ~earing scheduled for the 13th day of October, 2004, at 9:00 o'clock ~.m. at the Cumberland County Courthouse in Courtroom Number 4. BY THE COURT: / Jo VINVA'1X~NI~d G I :1 N~I 9Z gl'lV ~00~ EBERLY'S MILL CHURCH OF : GOD, : Plaintiff : VS. JAMES TURBAN, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3660 CIVIL CIVIL ACTION - LAW IN RE: PETITION FOR CONTEMPT, PETITION FOR iNJUNCTIVE RELIEF, PETITION FOR ATTORNEYS' FEES ORDER AND NOW, this /z ' day of October, 2004, following telephone conference with counsel and in light of a pending bankruptcy, hearing in this matter is continued and the matter to be relisted at the request of either party. BY THE COURT, o,~ary Etter Dissinger, Esquire For the Plaintiff Hess, J. ~'hwrence B. Abrahms, Esquire For the Defendant :rim i O.13 'O[