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HomeMy WebLinkAbout96-05007 )! - of .....0 . CI -1 ..... ~I ~1 ~ I 1 a . ! , '. " , '" '~~... .- ----. ~'" , , r: MONICA JACOBS and KEITH JACOBS, Plaintiffs I I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . v. I I CIVIL ACTION - EQUITY . . FRANK SMITH, Defendant I . . NO. 96-5007 EQUITY TERM IN REf ADJUDICATION BEFORE OLER. J, OPINION and DECREE NISI Oler, J., July 2, 1997. This case in equity arises out of the refusal of an owner of one side of a duplex to cooperate in the maintenance of foundation walls, including a party wall, allegedly necessary to the structural integrity of the building. A trial was held on April 21, 1997, and June 26, 1997. For the reasons stated in this opinion, the court will direct Defendant's contribution to the maintenance. FINDINGS OF FACT 1. Plaintiffs are Konica Jacobs and Keith Jacobs, adult individuals residing at 104 Horth Bnola Drive, Inola (last Pennsboro Township), Cumberland County, Pennsylvania. 2. Plaintiff Monica Jacobs i. the owner of the residence at 104 North Inola Drive. 1. Defendant is Frank Saith, an adult individual residing at 106 North Inola Drive, Inola (I..t Pennsboro Township), Cuaberland County, "nnsylvania. 4. Defendant is the owner of the rea1dence at 106 IIorth Inola Drive. , NO. 96-5007 EQUITY TERM 5. The two residences comprise a single, two-story, duplex building. 6. A common foundation wall runs between the two residences in the basement. 7. The duplex was built more than 50 years ago, and the foundation walls were constructed of poor-quality cement, containing some inappropriate materials, Buch as cinders. 8. Where the inappropriate materials are concentrated, the foundation walls can be penetrated with a screwdriver, holes have developed and pieces have fallen off. 9. The common foundation wall displays a hole several inchea in diameter, and is leaning in one area. 10. The building is not in imminent danger of collapse, but the deteriorating condition of the foundation walls precludes a description of it aa entirely atructurally aound. 11. A complete replacement of all of the foundation walls would coat about $35,000.00, according to Plaintiffs' expert. 12. The econoaic reasonableness of an expenditure of thia aile on the exiating building haa not been demonstrated. 13. Replac...nt of the common foundation wall would coat about $5,000.00, according to Defendant'. expert. Plaintifh' expert waa unable to segregate frea his $35,000.00 est!.ate the coat of replac...nt of the c<~.~ft wall only. 2 NO. 96-5007 EQUITY TERM 14. In lieu of replacement, a given wall can be treated by the excavation of particularly weak areae, and the infusion of good quality cement 1 euch an approach would obviously not produce a reeult comparable in quality to an entirely new foundation, but would be much lees expensive. 15. According to Defendant's expert, repaire of the type deecribed in the preceding paragraph to the interior foundation walle, excluding the COl\\ll\OD wall, of Defendant'. half of the building would COlt $500.00, and euch repairs to the exposed exterior foundation walle of his half of the building would cost $750.00. 16. Defendant testified that he had intended, prior to this litigation, to aake SODe repairs of thie type. 17. Th. court accepts as accurate the expense estiDates pre..nted by both experts for the work they described. DISCUSSION -A party wall 11 a divlsion wall between two connected and autually supporting buildings of different owners ..., usually standing half on the land of each owner, aalntained at .utu.l COlt of both owners, and lubject to us. by each owner consistent with the rights of the other.- 5tA Aa. Jur. 2d Party Walle 51, at 966 (It.7}. ) - NO. 96-5007 EQUITY TERM Where the halves of a duplex are conveyed to separate owners, it would seem that easements of support with respect to the wall accrue by implication in favor of, and against, each tenement. The conveyance of lands separated by a common wall on the dividing line may give rise to easements in the nature of party wall ri~hts. For example, where buildings on adjoining lots have a wall in common and one proprietor grants the other a portion of land that embraces a specified vertical half of the wall, the law implies the reservation of an easement in the half granted, and the grant of a corresponding easement in the half retained. This is true of a conveyance that severs the title to lots with buildinqs supported by a wall located on the division line, as where the owner of two adjoining lots erects buildings on the. with a partition wall on the division line, the wall beinq necessary to and used for the support of both buildings, and conveys either building and lot with its appurtenances. Similarly, where the owner of two buildings that are separated by a division wall severs the lots and buildings by conveyances to separate grantees, and one of the conveyances includes the division wall, the grantee under the other conveyance will have an implied ease_nt for support in the vall as an implied grant and reservation.l In the present case, the court is of the view that each owner should contribute to the replace_nt of the common foundation vall in the ba.e_nt of the building owned by the.. This shared .tructure, a. to vhich each tenement is benefitted and burdened by 59A~. Jur. 2d 'arty Walla 117, at 974-75 (19871. The court view. this ca.e a. one involving property lav rather than tort 1av. It doe. not beUeve, for inltance, that tbe liabilities of tbe partie. are properly re.olved on nubance theorie.. 4 NO. 96-5007 EQUITY TERM way of an easement for support, was constructed of poor quality material in the first instance, and has deteriorated to the point that a large hole appears in it and part of it sits at an angle. Based upon the estimate in evidence of $5,000.00 for its replacement, Defendant will be directed to contribute half the cost, but in no event more than $2,500.00, to any project undertaken by Plaintiffs to replace this party foundation wall. Although in a sense the condition of each half of a duplex affect. the other half, the court was not per.uaded that equitable relief in the form of a directive that Defendant participate in a project to totally replace the foundation of the building would be appropriate. Such a directive would extend the party wall concept _11 beyond it. n0I'lll41 parameters under circUIII.tance. where (al no immediate harm i. likely to occur, (bl the economic rea.onablenes. of .uch a mea.ure ha. not been .hown, and (cl Ie.. expen.ive, albeit Ie.. effective, treataent of the wall. i. available. Defendant will, therefore, be directed to expend a .UIB for the reoair of his non-party foundation wall. equal to that expended by Plaintiff. for repair or replaceaent of theirs, but in no event aore than $1,250.00. CONCLUSIONS OF UN 1. The Court has jurisdiction of the parties and subject aatter of this litiqatlon. 5 . . . ~I <. -, L,_ ". /A~~JA- , ;..,.....-; 4..t.t1t it (e MONICA JACOBS and K ,")' '- 'HE COURT OF COMMON PLEAS OF IERLAND COUNTY. PENNSYLVANIA CIVIL ACTION - EQUITY vs. FRANK SMITH. . Defend;~~po~:l~ 1996-5007 DECREE NISI AND EQUITABLE LIEN (PARAGRAPH f~f)P~,\\) FINDINGS OF FACT - 28) 1. Keith Jacobs and Monica Jacobs are husband and wife who reside at 104 North Enola Drive, Enola. PA 17025 with Monica Jacobs beinq the leqal title holder to said property. 2. Frank Smith is the owner of and resides at 106 North Enola Drive, Enola. PA 17025. 3. Plaintiffs and Defendant share a duplex-style home with Monica Jacobs and Keith Jacobs residinq on that portion of the home with an address of 104 North Enola Drive. and with Frank Smith residinq on that portion of the home with an address of 106 North Enola Drive. 4. The foundation walls around most portions of the aforesaid duplex.style home are deterioratinq. If not corrected, the half of the buildinq in which the Plaintiffs reside will collapse and the half of the buildinq in which the Defendant resides will collapse. 5. Plaintiffs have made the Defendant aware of the problems with the foundation walls on numerous occasions prior to filinq this lawluit and have requested that he cooperate in fixinq the problem. 6. Defendant refules to correct the problem with the foundation walll in that he refuses and has refused to have the same repaired and refuses to work With Plaintiffs In repairinq the foundation walll. 7. The evidence 'U4qestl that the estimated COltl of repairinq the damaqe to the walls of the d~plex'style home will be a~roximately 'J~,17~.74 in fees to a qenerll cor.tractor rl~. '1.955.27 1n enqineerinq feu for a teul 01 '37.n:.C!, a. Criterium Yingst Engineers have agreed to draft plans for a contractor to follow in repairing the foundation walls and to assist Plaintiffs in selecting a qualified contractor who can competently execute the plans drafted by Criterium Yingst Engineers and also perform whatever services are necessary to correct the deteriorating foundation walls. t!~fb!.~~_~CONCLUSIONS OF LAW 9. Paragraphs 1 through a are incorporated herein by reference. 10. The deterioration of the foundation walls located on the Defendant's property as set forth above create a private nuisance. 11. By refusing to repair the foundation walls on his property. the Defendant has been negligent and has breached a duty that he owes to Plaintiffs to keep his side of the duplex-style home structurally sound. 12. The Order below constitutes an equitable remedy to the Plaintiffs' compliant. f~oe.~~b. ORDER AND NOW, this day of 1997 it is hereby ordered as follows: 13. Paragraphs 1 through 12 are incorporated herein by reference. U. An Injunction is hereby issued directinq P'raM SlIIith. Defendant. to take whatever actions are necessary in cooperation with Monica and Xeith Jacobs. Plaintiffs, and consistent with that outlined below to repair the foundation walls to the property located at 10. and 106 North Enola Drive. Enol., PAt huttllfter refund to III subject property; 15. Plainttffs Shall select a contractor Icceptable to CriteriUtll Yin~lt tn;ineers to repair the foundation wall. to the lubject property; 16. Plaintiffs and Defendant shall each authorize the contractor (and any subcontractor retained by the contractor) to do the work in the plans provided by Criterium Yingst Engineers; 17. The contractor land any subcontractor retained by the contractor) selected should be paid in full (a reasonable portion in trust pending completion of work is sufficient) in advance by Plaintiffs and Defendant. with Plaintiffs required to pay 50\ of the contractor's costs and Defendant required to pay 50\ of the contractor's costs; 18. As used herein. contractor's costs shall include any costs of subcontractors retained by contractor; 19. Criterium Yingst Engineers shall be paid in full (a reasonable portion in trust pending completion of work is sufficient) in advance by Plaintiffs and Defendant with Plaintiffs required to pay 50\ of the costs of Criterium Yingst Engineers and Defendant required to pay 50\ of the costs of Criterium Yingst Engineers; 20. Any other reasonable expenses directly associated with the repair of the foundation walls. but not including attorney fees. finance application fees or other incidental fees. shall be paid in full (a reasonable portion in trust pending completion of work is sufficient) in advance by Plaintiffs and Defendant with Plaintiffs required to pay 50\ of said reasonable expenses and the Defendant required to pay 50\ of said reasonable expenses; 21. To pay for his share of expenses outlined above. Defendant ahall either pay for the s~e cutright or he shall obtain financing for the nllle. Financing can include but la net I imi ted to IlI&ll.ing an application and obtaining finL~cinq fr~ a bank or . finance comrany. Financing can alia include the Cefendant borrOWing the maxi~ L~unt available under any eXllting c~n Ilnel of credIt with Mellon Bank. Fleet fl.l!/ll [atite l"..mdin~ ccrpofatlcl'\ a:-,,1 t!;elf iUlli~,:,;eeSl 22. Should Plaintiffs perceive it necessary for Defendant to obtain financing to complete the necessary repairs, then Plaintiffa at their option may send Defendant a letter indicating that Plaintiffs believe that Defendant needs to obtain financing for Defendant's share of the repairs. Within 15 days of receiving said letter. the Defendant shall make a good faith effort to obtain financing in the amount stated in said letter. Defendant's good faith effort to obtain financing shall in the very least consist of making an application for financing to one of the entities listed in the previous paragraph; 23. Defendant is directed to itmlediately notify Plaintiffs through their counsel of who he applied with for financing; 24. Defendant is directed to sign a release prepared by Plaintiffs which authorizes Plaintiffs or their counsel and the entities to whom Defendant applies to for financing to communicate freely with each other about the status of the application for financing. Said Release shall authorize communications regarding inquiries related to but not limited to inquiries regarding whether financing will be obtained, when it will be obtained and in what amount; 25. Defendant shall communicate openly and in good faith with the Plaintiffs in reference to all matters related to the repair of the foundation walls inCluding but not limited to financing of the Defendant's share of the costs of repairing the foundation walls as set forth above; 26. Should Plaintiffs be under the reasonable impression that the Defendant is not making a good faith effort to communicate with them as required by the preceding paragraphs. Plaintiffs have available to them the dlsco~.ry tools available to parlles set forth in "ule. CeOl et .~q Qf the Penn.yl~.nia Rule. of Civil procedure to dilcover relevant information. Nothing in this paragraph shall preclude the Plaintiffs from seeking other remedies including contempt for a failure of Defendant to communicate with them in good faith as required by the preceding paragraph; 27. To the extent Plaintiffs spend any money on contractors. engineers or other reasonable expenses to repair the relevant foundation walls in excess of the amounts spent by Defendant pursuant to this Order. then Defendant shall pay one-half of said excess over to Plaintiffs immediately upon receiving notice of the existence of said excess; 28. To the extent that Defendant does not pay over to Plaintiffs one-half of said excess as provided for in the preceding paragraph. Plaintiffs shall have an equi table lien on Defendant' s real estate located at 106 North Enola Drive. Enola, PA in an amount equal to 1/2 of said excess as defined in the preceding paragraph plus 6\ interest per year. Either party upon presentation to the Recorder of Deeds and payment of the appropriate filing fee shall have the ability to file this Order with that officer. Any third party reading this paragraph is put on notice that they may contact Plaintiff's counsel. YOffe , Yoffe. P.C. by Jeffrey N. Yoffe. Es~~ire. 214 Senate Avenue, Suite 203. Camp Hill. PA 17011 for the status of any lien which may exist on 106 North !nola Drive in Enola. PAl 29. Contractors. (and subcontractors retained by them) Engineers and other professionals who need access to 106 North !nola Drive. !nola. PA. owned by the Defendant, In order to make repairs to the foundation walll conliltent With thiS Order. are hereby granted an easement acrol' the ent 1ft' property owned by th. Defendant at 106 North Enola Drive. Enola. FA to the extent {meaning Width. Ille and location of ea.ement' whl0h II re.lonatiy neoellary to complete the repair of the foundation w4l11: ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MONICA JACOBS and KEITH JACOBS, Plaintiffs No. 96-5007 Equity V. . . FRANK SMITH, Defendant Civil Action - Equity ANSWER AND NOW, this 5th day of March, 1997, comes Defendant, Frank Smith, by and through his counsel, Michael J. Hanft, Esquire, and files the following Answer and in support thereof avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. It is specifically denied that the walls are deteriorating or that Defendant is in any way responsible for any damage alleged to need to be corrected. Strict proof thereof is demanded at trial. 5. Denied. It is specifically denied that there are problems with the foundation walls. Therefore the same is specifically denied and strict proof thereof is demanded at trial. 6. Admitted in part, denied in part. It is specifically denied that there are any problems with the foundation walls that are attributable to Defendant and that Defendant is responsible for repairing. It is admitted that Defendant has not corrected any problem because Defendant is not aware of said problem. strict proof thereof is demanded at trial. 7. Denied. The averments of paragraph 7 are a conclusion of law to which no specific pleading is required. If a more spEcific pleading i. deemed required, the averments of para9raph 7 are speclfically denied and strict proof thereof is de..nded at trial. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION - EQUITY " (' /.,-",- NO. '1'~. ,',", , C'1.4,&.LJ7 MONICA JACOBS and KEITH JACOBS, Plaintiffs vs. FRANK SMITH. COMPLAINT I. INJUNCTION 1. Keith Jacobs and Monica Jacobs are husband and wife who are the owners of and reside at 104 North Enola Drive. Enola. PA 17025. 2. Frank Smith is the owner of and resides at 106 North Eno1a Drive, Enola. PA 17025. 3. Plaintiffs and Defendant share a duplex- style hOllle with Monica Jacobs and Keith Jacobs owninq that portion of the hOllle with an address of 104 North Enola Drive. and with Frank Smith owninq that portion of the hOllle with an address of 106 North Enola Drive. ... The foundation walls around most portions of the aforesaid duplex-style home are deterioratinq. If not corrected the half of the buildinq owned by both the Plaintiffs and the Defendant will collapse. 5. Frank Smith is aware of the problem with the foun4ation walls. 6. Frank Smith refule. to correct the problem with the foundation-walls in that he refuse. to have the same repaired. 7. In refulinq to repair the foundation wall. on hi. proparty, Frank Smith i. nll9lic;ent and i. breachill9 a duty that he owes to Monica Jacob. and Keith Jacob. to keep hil .ide of the duplex..tyle hOllle structurally lound. 8. Plaintiff. have been in contact with .killed profe..ional. ~~ have the traininc; and exp4rience to correct the .tructural problema of the duplex.atyle hClllt and who atand uacty to have their ..niee. retained for ~t purpo.e. WHEREFORE, Plaintiffs request that the Court enter an Order directinq that Frank Smith permit the Plaintiffs and their aqents access to Frank Smith's portion of the duplex. style horne in order to correct the problem with the foundation. II. DAMAGES AND EQUITABLE LIEN 9. Paraqraphs 1 throuqh 8 are incorporated herein by reference. 10. Plaintiffs estimate that the cost of repairinq the damaqe to the entire duplex-style horne will be at least '17,000.00. WHEREFORE. Plaintiffs request that the Defendant be ordered to pay damages for his equitable portion of the cost to repair the foundation walls and that the Plaintiffs in addition be permitted to have a judqment for that amount of damaqes. Plaintiffs allo requelt that they be qiven an equitable lien on the Defendant's property for the Defendant'l equi table share of the cost of repairinq the foundation walls and that the COurt direct that if the Defendant does not utilfy the equitable lien within a reasonable amount of time that the Plaintiffs can lel1 the real estate owned by the Defendant located at 106 North Enola Drive. Enola. Pennsylvania 17025. III. PRIVATE NUISANCE 11. Puaqrapha 1 through 10 are incorporated herein by rehrence. U. The deterloration of tl:e fOWldation walls located on the Defendant'. property as afotelaid creete e private nuilance. ~ f'=. ~J ,. - U~.~ .. - ( , .~ r=' c h. " . r' '::. :--j " ~ r [, . :,..., C- '. . r-i I (.. -~ L , ) , . --' . ~ "" ~\~I~ ~~~ I \..., ~ .~"'~ ~ ~::~ , ~ T C\~ ~~;::-. ....... V ~-' ~ MONICA JACOBS and . IN THE COURT OF COMMON PLEAS OF . KEITH JACOBS, . CUMBERLAND COUNTY, PENNSYLVANIA . Plaintiffs . . . . v. . NO. 96-5007 EQUITY TERM . FRANK SMITH, Defendant : CIVIL ACTION - EQUITY IN RE I TRIAL TO CONTINUE ORDER OF COURT AND NOW, this 21st day of April, 1997, upon consideration of the Plaintiffs' complaint in the above-captioned matter, and following an initial morning of trial, and the trial not having been completed, counsel are requested to contact the Court's secretary to schedule an additional half day of trial. It is noted that at the time of adjournment the Plaintiffs' had rested their case, with Plaintiffs' Exhibits 1 through 28 having been identified and admitted. No other exhibits have been identified or adlll1tted. Briefs are requested from counsel prior to the next half day of trial on the issue of the obligation of an adjo1niDg landowner in a duplex to preserve the structural integrity of the building. By the Court, Of , . JeUrey If. YoUe, ..q\lln Counsel for Plaintlff. Mlcbael J. Ranft, .sq\llre Counsel for DefendaAt ,slr MONICA JACOBS and IN THE COURT OF COMMON PLEAS OF KEITH JACOBS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs I v. I NO. 96-5007 EQUITY TERM FRANK SMITH, I Defendant I CIVIL ACTION - EQUITY IN RE I AMENDMENT TO COMPLAINT ORDER OF COURT AND NOW, this 21st day of April, 1997, upon consideration of an oral motion of Plaintiffs' counsel to amend the complaint to reflect that the legal title owner to the property at 104 North Enola Drive, Enola, Pennsylvania, is Nonica Jacobs as opposed to both Honica Jacobs and Keith Jacobs, and the Defendant's counsel, in the person of Nichael J. Ranft, Bsquire, having indicated no objection to the requested amendaent, the cClIIplaint i. so ....nded. By the Court, Jeffrey K. Yoffe, "quire Coun.el for Plaintiff. Nichael J. Ranft, ..quire Coun.el for Def*ftdaftt .slr r, - ': , C -,I -,~' c., . .. - , r, . _'i j; , , (. . h;;:.; "... ; .i... , MONICA JACOBS and I IN THE COURT OF COMMON PLEAS OF KBITH JACOBS, I CtlMBERLAND COUNTY, PENNSYLVANIA Plaintiffe I I v. I NO. 96-5007 EQUITY TERM I FRANlt SMITH, I Defendant I CIVIL ACTION - EQUITY IN RB: AMBNDMENT TO COMPLAINT ORDER OP COURT AND NOW, thie 21et day of April, 1997, upon coneideration of an oral motion of Plaintiffe' couneel to amend the complaint to reflect that the legal title owner to the property at 104 North Enola Drive, Enola, Pannaylvania, ie Monica Jacoba ae oppoeed to both Monica Jacobe and Keith Jacobe, and the Defendant' e couneel, in the pereon of Michael J. Hanft. .equire, having indicated no objection to the requeatad amendment, the complaint 18 ao _ended. By the Court, J./ Jeffrey N. YOffe, .equire Couneel for PlaiDtiffe Michael J. KaDft, laquire Couneel for Defendant - c.....:..... 'n~(~l 'f}.n/.'" .1} ..J )'" lelr MONICA JACOBS and KEITH JACOBS, Plaintiffs . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : : v. . . CIVIL ACTION - LAW FRANK SMITH, Defendant : I NO. 96-5007 EQUITY TERM AND NOW, ORDER OF COURT this z.c.1<. day of February, 1997, upon consideration of Defendant's Petition To Open Default Judgment, and following a telephone conference on February 26, 1997, in which Plaintiffs were represented by Jeffrey N. Yoffe, Esq., and Defendant was represented by Michael J. Hanft, Esq., and pursuant to an agreement of counsel, it is ordered and directed as follows: 1. The judgment in favor of Plaintiffs and against Defendant entered December 9, 1996, is stricken. 2. The hearing on Plaintiffs' Motion for Hearing To Assist Court in Framing Decree Based on Default Judgment, scheduled for February 26, 1997, is cancelled, and the motion is deemed no longer operative in view of the judgment's being stricken. J. The ans_r proposed by Defendant to Plaintiffs' cOlllplaint, which was attached to Defendant's Petition To Open Default Judgment, shall be filed by Defendant within 10 days of the date of this order. 4. An equity tri.l on Plaintiffs' cOlllpl.int is scheduled for Mond.y, April 21, 1997, .t 9z00 ...., in Courtrooa No.5, Cuaberland County Courthouse, Carlisle, pennsylvani.. BY T1lI COUItT, ~ ':> -~\. ')) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MONICA JACOBS and . . KEITH JACOBS, No. 96-5007 Equity Plaintiffs . . : V. . . : FRANK SMITH, Civil Action - Equity Defendant . . RULE TO OPEN JUDGMENT AND NOW, this day of February, 1997, on motion and petition of Michael J. Hanft, Esquire, counsel of record for the Defendant, the Court grants a rule on Plaintiff to show cause why the judgment should not be opened and defendant let into a defense. Rule returnable , 1997. Proceedings to stay until determination of the rule. , J. 4. Pennsylvania Rule of civil Procedure 237.1(a) (2)(ii) provides that: No judgment of non pros for failure to file a complaint or by default for failure to plead shall be entered by the prothonotary unless the praecipe for entry includes a certificate that a written notice of intention to file the praecipe was mailed or delivered (ii) in the case of a judgment by default, after the failure to plead to a complaint and at least ten days prior to the filing of the praecipe to the party against whom judgment is to be entered and to his attorney of record, if any. Pa, R.C.P. 237.1(a) (2) (H). 5. Said Important Notice was allegedly only mailed to Defendant's counsel, and not also to Defendant as required by Rule 237.1 of the Pennsylvania Rules of civil Procedure. 6. Pennsylvania Rule of Civil Procedure 237.1(a)(4) provides that: No judgment of non pros for failure to file a complaint or by default for failure to plead shall be entered by the prothonotary unless the praecipe for entry includes a certificate that a written notice of intention to file the praecipe was mailed or delivered (4) The notice and certification required by this rule can not be waived. Pa, R.C.P. 237.1(a)(4). 7. Because said Important Notice was alleqedly only aailed to Defendants' counsel and IQI to Defendant as required by Pennsylvania Rule of Civil Procedure 237.1. the Praecipe for the entry of the default judqaent is defective on ita face. 8. The failure to provide a notice of intention to file a praecipe for entry of a default judgment in accordance with Pennsylvania Rule of civil Procedure 237.1 is a defect on the face of the record which requires the striking of the default judgment. 9. Other than one telephone call from Plaintiff's counsel to Defendants counsel in February, 1997, neither Defendant nor Defendant's counsel ever received a copy of the Entry of Judgment or the Order scheduling a hearing on February 26, 1997 to determine the appropriate equitable relief in this matter. 10. The facts sufficient to constitute a meritorious defense were given to Defendant's counsel by the said Defendant and that he assured the said Defendant that an appearance would be entered and that an answer would be filed upon receipt of a ten day notice from the Plaintiff. 11. That the Defendant is in no way responsible for the failure of an answer to be filed within the tiae limited. 1~. That unless the Defendant is allowed to interpose his defense, a qreat injustice will result in .s much aa the Plaintiff viii be permitted to recover 8qainst the Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MONICA JACOBS and KEITH JACOBS, Plaintiffs . . : No. 96-5007 Equity . . V. . . FRANK SMITH, Defendant . . civil Action - Equity . . PRAECIPE TO: Prothonotary Please enter my appearance on behalf of the Defendant, Frank Smith. Respectfully submitted, HANFT , VOHS Date: 10/02/96 M chael J. Hanf Attorney ID 157 '76 11 West Poafret Street, Suite 2 Carlisle, PA 17013 (717) 249-5373 '-1 -..t ~ >- ~ -;. ~ '-oJ ... ~. ~ ....0 - .....J - n " . - ~ t v, E ~ ~ ~ .4 0 0 ~ ~ 0- ~ J1. t>,. ~ . ..-. . \. L"" Of!lCES YOFFE. YOFFE. P.C. sum ~ . 31UENATI AVENUE CAMPHtU.PA 17011 en 7) 97$-1131 l..-' " MONICA JACOBS AND I IN TUB COURT OP COMMON PLEAS OP DITH JACOBS, I CtlMBERLAND COUNTY, PENNSYLVANIA Plaintifh I I v. : 96-5007 EQUITY TERM I PRANIt SMITH, : Defendant : CIVIL ACTION - EQUITY IN RB: NATTER TAICBN UNDIR ADVISBNBNT ORDER OP COURT AND NOW, this 26th day of June, 1997, UpoD consideration of the Plaintiffs' complaint in the above-captioned matter, and following a nonjury equity trial held over the cour.e of two day., the record i. declared clo.ed, and the matter i. taken under adviaeaant. By the Court, J Jeffrey N. Yoffe, .squire Counsel for Plaintiff. Michael J. Hanft, I.quire Coun.el for Defendaat _ C~""N.~L "j.nl'f'7 U .b. fl. I.lr .'.. "".... 'I.L\1lO:) .. ...',)