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Home My WebLink About00-00395 / /' .. - -~ ~~ ~:o"1 CD o CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYL VANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as reqnired by PA RAP. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: RECORD FILED IN SUPERIOR COURT AUG - 6 2002 A~'~ LCL INCOME PROPERTIES, L,P. II t/dfb/a BUNKER ASSOCIATES vs HARVEY HOFFMAN HARRISI:lUKG NO, 00-395 CIVIL TERM 972 MDA 2002 The documents comprising the record have been numbered from No. 1 to 130, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 8-2-02. ~J~ . C :sR.Long,~o o~ Jane H. Sparling, Dpty. An additional COpy of this certificate is enclosed. Please sil!n and date COpy, thereby acknowled~inl!' receipt of this record. Date Signature & Title ~~~~~ lUJ a lil' j .1I~1l CUi I' Ll&rnin -'til" If "' .,--- "-:""'~l (1) o Among the Records and Proceedings enrolled in the court of Common Pleas in and for the COPY OF CUMBERLAND 972 MDA 2002 00-395 CIVIL COMPLETE in the Commonwealth of Pennsylvania county of to No. Term, 19 is contained the following: DOCKET ENTRY LCL INCOME PROPERTIES. L.P., II t/d/b/a BUNKER ASSOCIATES VS. HARVEY HOFFMAN SEE ATTACHED CERTIFIED DOCKET ENTRIES. /' \ \ t\ i\ i i . I \ I , . i " '\ PAGE N). 1 - 7 8 9 - 13 l4 - 18 19 19 20 - 22 23 24 25 - 26 27 - 29 27 - 29 30 31 ._"~"'''''''''.'''..."'-'' ... - - ~~ .' ,~ --- "':"1.'. ""', -, -',; o o PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry 2000-00395 LCL INCOME PROPERTIES L P II (vs) HOFFMAN HARVEY Page 1 Reference No. . : Case Type.....: COMPLAINT Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc. : ------------ Case Comments ------------- Filed...'.....: Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 1/21/2000 2:14 0/00/0000 0/00/0000 972 MDA 2002 ******************************************************************************** General Index Attorney Info LCL INCOME PROPERTIES L P II PLAINTIFF FRIEDMAN RICHARD S KING JOHN F FRIEDMAN RICHARD S KING JOHN F BUNKER ASSOCIATES 1100 YVERDON DRIVE CAMP HILLPA 17011 PLAINTIFF HOFFMAN HARVEY 1200 YVERDON DRIVE CAMP HILL PA 17011 DEFENDANT Judgment Index HOFFMAN HARVEY LCL INCOME, PROPERTIES L P II BUNKER ASSOCIATES Amount Date Desc 1,950.00 10/20/2000 7Z24Z2002 7/24/2002 AWARD OF ARBITRATORS ORDER OF COURT ORDER OF COURT ******'************************************************************************** * Dat.e,. Entries * ******************************************************************************** 1/21/2000 2/02/2000 2/08/2000 2/17/2000 6/29/2000 7/18/2000 9/12/2000 9/15/2000 10/20/2000 11/08/2000 12/04/2000 12/04/2000 11/09/2001 11/16/2001 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT - CIVIL ACTION ------------------------------------------------------------------- ACCEPTANCE OF SERVICE ------------------------------------------------------------------- DEFENDANT'S ANSWER WITH NEW ~TTE~ TO :THECOMPLAINT OF THE PLAINTIF LCL INCOME PROPERTIES LP II T/D/B/A BUNKER ASSOCIATES ------------------------------------------------------------------- . PLAINTIFF'S ANSWER TO DEFT NEW MATTER ---------------~--------------------------------------------------- PETITION FOR APPOINTMENT OF ARBITRATORS ------------------------------------------------------------------- ORDER OF COURT 7/03/00 APPOINTMENT OF ARBITRATORS GEORGE E HOFFER PJUDGE ARBITRATORS ARE ROBERT FREY II ESQ - JENNIFER DEITCHMAN ESWQ AND TRICIA DILS NAYLORESQ . NOTICE MAILED 7/18/00 ------------------------------------------------------------------- MOTION FOR CONTINUANCE ------------------------------------------------------------------- ORDER - DATED 9/15/00 - IN RE MOTION FOR CONTINUANCE - GRANTED - BY GEORGE E HOFFER PJ - COPIES MAILED 9/15/00 --------------------------------------.----------------------------- AWARD OF ARBITRATORS - IN FAVOR OF THE PLAINTIFF AND AGAINST THE DEFENDANT IN THE AMOUNT OF $1950.00 PLUS INTEREST AT THE LEGAL RATE FROM AUGUST 1, 1998 PARTIES TO BEAR THEIR OWN COSTS NOTICE MAILED BILLED COUNTY FOR ARBITRATORS 12/06/00 ------------------------------------------------------------------- NOTICE OF APLEAL FROM AWARD OF BOARD OF ARBITRATORS - BY DARRELL C DETHLEFS ESQ ATTY FOR APPELLANT ------------------------------------------------------------------- MOTION OF DEFENDANT TO AMEND ANSWER AND NEW MATTER - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- MOTION OF DEFENDANT TO AMEND ANSWER AND NEW MATTER - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL - BY RICHARD S FRIEDMAN ESQ FOR PLFF ------------------------------------------------------------------- ORDER OF COURT - DATED 11/15/01 - A PRETRIAL CONFERENCE IN THE ABOVE MATTER IS SCHEDULED FOR 1/10/02 AT 1: 30 PM IN CHAMBERS OF UNDERSIGNED JUDGE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA = ~.. -~~. ( i \j \ [\ i\ j \ .( \ , , ; I PAGE OO~ ,\ ,\ 32A - 328 33 - 37 38 40 - 44 45 39 46 - 47 48 - 55 56 - 98 99 - l02 l03 - 105 56 - 98 106 - 119 l20 - l24 l25 - 127 128 - 129 130 _' " I, ~'~ __.:~_""I.....,..IU...".,.U".'I ~~ 1',iLII'L":"11'J,'ili,,"J.JjlJi,, J li~ " . dl PYS510 c:tUmberland County prothohota~s 0ff~ce Civil Case Inquiry LCL INCOME PROPERTIES L P II (vs) HOFFMAN HARVEY Page 2 2000-00395 Reference No. . : Case Type.....: COMPLAINT Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc. : ------------ Case Comments ------------- Filed. . . . . . . . : Time.... '.....: Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: PRETRIAL MEMORANDA SHALL BE SUBMITTED BY COUNSEL AT LEAST 5 DAYS PRIOR TO PRETRIAL CONFERENCE - A NONJURY TRIAL IN THE ABOVE MATTER IS SCHEDULED FOR 2/27/02 AT 9:30 AM IN CR 1 CUMBERLAND COURTHOUSE CARLIBjLE PA - BY THE COURT J WESLEY OLER JR J COPIES MAILED 11/16 Ol -----~------------------------------------------------------------- 1/16/2002 PRE-TRIAL CONFERENCE - BY THE COURT - J WESLEY OLER JR J COPIES MAILED 1-16-02 -----~------------------------------------------------------------- MOTION TO MAKE RULE ABSOLUTE - DARRELL C DETHLEFS ESQ -----~--------------------------------------------------------~---- ORDER OF COURT - DATED 2/4/02 - IN RE DEFTS MOTION TO MAKE RULE ABSOLUTE A RULE IS HEREBY ISSUED UPON PLFFS TO SHOW CAUSE WHY RELIEF REQUEST SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 10 DAYS OF SERVICE - BY THE COURT J WESLEY OLER JR J COPIES MAILED 2/4/02 -----~------------------------------------------------------------- MOTION TO MAKE RULE ABSOLUTE - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- ORDER - DATED 2/27/02 - IN RE MOTION BY THE DEFT AND FAILURE OF THE PLFF TO SHOW CAUSE WHY RELIEF SHOULD NOT BE GRANTED THE DEFT IS GRANTED PERMISSION TO AMEND HIS DEFENSE AS TO INCLUDE THE DEFENSE OF RELEASE - BY THE COURT J WESLEY OLER JR J COPIES MAILED ------------------------------------------------------------------- 2/28/2002 ORDER OF COURT -DATED 2/28/02 - IN RE PLFFS COMPLAINT IN. THE ABOVf CAPTIONED MATTER AND FOLLOWING A NON-JURY TRIAL HELD ON 2/27 02 THE COURT FINDS IN FAVOR OF DEFT. AND AGAINSTPLFF- BY THE COUR J WESLEY OLER JR J COPIES MAILED 2/28/02 3/12/2002 ~iD~~-2~~~gW~~~-B~~~~~~fiF~~~i~~N~R~i~~~s~~~~i~c~~~~i~OE~~ii~- J COPIES MAIELD 3/12/02 --------------------------------------------------------------~---- 3/12/2002 PLAINTIFF LCL INCOME PROPERTIES LP II MOTION FOR POST-TRIAL RELIEF - BY RICHARD S REIEDMAN ESQ ---------,---------------------------------------------------------- TRANSCRIPT FILED - BY THE COURT J WESLEY OLER JR J ------------------------------------------------------------------- PLAINTIFF'S ADDITIONAL GROUNDS FOR RELIEF - BY RICHARD S FRIEDMAN ESQ ------------------------------------------------------------------- 4/10/2002 DEFENDANT'S ANSWER WITH AMENDED NEW MATTER TO THE COMPLAINT OF THE PLFF LCL INCOME PROPERTIES LP II - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- TRANSCRIPT FILED - BY THE COURT J WESLEY OLER JR J ------------------------------------------------------------------- ORDER OF COURT - DATED 5/17/02 - IN RE PLFF'S MOTION FOR POST-TRIAL RELIEF BEFORE OLER JR J, OPINION AND ORDER OF COURT - MOTION IS DENIED - BY THE COURT J WESLEY OLER JR J COPIES MAILED ~~:~~~~------------------------------------------------------------ 6/17/2002 NOTICE OF APPEAL TO SUPERIOR COURT OF PENNSYLVANIA - BY JOHN F KING ESQ ------------------------------------------------------------------- SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 792 MDA 2002 ------------------------------------------------------------------- PRAECIPE FOR ENTRY OF JUDGMENT - ENTER JUDGMENT IN THE ABOVE CAPTIONED CASE PURSUANT TO THE COURT'S ORDERS DATED 2/28/02 AND 5/17/~~_~~_~~~~~_~~_~~~:___________________________________________ 7/24/2002 PRAECIPE FOR ENTRY OF APPEARANCE FOR PLFF - BY JOHN F KING ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - EXHIBIT AND BRIEFS *****************~************************************************************** * Escrow Information * * Fees & Debits Beo Bal PvmtS/Adl End Bal * *****************~***********************~************************************** 1/21/2000 2:14 0/00/0000 0/00/0000 972 MDA 2002 1/30/2002 2/04/2002 2/21/2002 2/27/2002 3/28/2002 4/09/2'002 4/15/2002 5/17/2002 6/21/2002 7/24/2002 :.'E,;:.;'_" " :11 d", " ~ r" lIP? ":_ __~__ M __.m -'.:'-;;";'::'-':" .) (0 ( i I ; ~I ",L~ o PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry 2000-00395 LCL INCOME PROPERTIES L P II (vs) HOFFMAN HARVEY 'i \ " !\ , \ I , Reference No. . : Case Type. ....: COMPLAINT Judgment... ... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc. : ------------ Case Comments ------------- COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE APPT OF ARBITRA APPEAL ARBITRAT APPEAL JDMT 35.00 .50 5.00 5.00 15.00 290.00 30.00 9.00 389.50 35.00 .50 5.00 5.00 15.00 290.00 30.00 9.00 389.50 Filed. . . . . . . . : Time......... : Execution Date Jury Trial. ... Disposed Date. Higher Crt 1.: Higher Crt 2.: .00 .00 .00 .00 .00 .00 .00 .00 .00 "-'-'-' Page 3 1/21/2000 2:14 0/00/0000 0/0010000 972 MDA 2002 ***~**************************************************************************** * End of Case Information * ******************************************************************************** ! TRlIE COpy 11 TestlmonVWllfU . "ROM FtECoRO . .Id t seal of ,eat. , here unto set Iii; ilL 5a$d " at CarIISle.7a"" . dOdd, - ~~" . -.r [1:' -r.! ] f I "J' - "I~f I jl o o Commonwealth of Pennsylvania County of Cumberland } ss: I, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated. wherein LCL Income Properties, LP, II, t/d/b/a bunkerAssoc. Plaintiff, and Harvey Hoffman In TESTIMONY WHEREOF, I have this 2nd Defendant _, as the same remains of record before the said Court at No, 00-395 of Civil Term, A.D, 19_, hereunto set my hand and affixed the seal of said Court d~f Au ust A. D.. @02 , 'ey...~. Nintli ;/ I, George E. Hoffer President Judge of the Judicial District,.composed of the County of Cumberland, do certify that Curt 1S R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith . and credit are and ought to be given as well in Courts of judicature a e er, a d that the said record, certificate and attestation are in due form of law and made by t i P sident.l udge Commonwealth of Pennsylvania County of Cumberland } ss: I, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable C;"nrg" 1': HnTT"r P ,T by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned anil qualified; to all whose acts as such fuli faith and credit are and ought to be given, as well in Courts of judicature as. elsewhere, IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 2nd day of Au ust A.D,2WL-. ~ gV\~' Ch Prothonotary " ., '.' 'IJUlJ IIjjJliil~'1 . " IJ1];1':. ITLa'j ~ -l't'!luW ~ - "11'1 I' 00 r Qll - I Illi~ Jl '~]nJ! . . tTl n ~ 0 "T1 Z Z ~ " 0 0 <1> ~ !" !" ~ '" s i! 0 <1> ~ S ~ '" <1> 0- ~ ., ~ " ~ 0- ::: :n '1l " - 0- ... < "'l '" - <1> t'l ~ '" 0 " '" :Iil ~ :;:> 1"1 -I -I 0 0 <1> <1> 5' :Iil ~ ~ 0 0 S S 0 -0 n 0 ~ I 0 -0 -0 " I I '" ~ " <::' -.., "-,.' ,-- '._ _' _.--,- <, ~. _ _r ~,_"_. MOm' _ .--. -'-V-'~c.""",_~ "'_," , "'. ~.;- i , e o LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : Plaintiff v. No. ';;000 - .J9S C~u~L y~ : HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW NOTICE TO DEFENDANT NAMED HEREIN: You have been sued in Court. If you wish to defend against the claims set forth in the fOllowing pages, you must take action within twenty (20) days after this complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Le han demandado a usted enla corte. si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partie de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. ( . ,- ,,-, " "-",;""',,,-,,- .";,,.."' 'C',,,,,,,; ",<,",'" . ~ ,,;,,,,,,,",I""-~'C"-:""~j",,,,,,, :.;", _"'Y ~I o o LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 FRIEDMAN & KING, Dated: }o )d600 Richar S. Friedman, Esquire 600 N rth Second st. Pent use suite P. O~ Box 984 Harrisburg, PA 17108 (717) 236-8000 J. ~.."" ~ ._r".,', :. -; . ~ ~',-_o ~> _,'",0,_",_,.0--' '"';;;--~I- ,', ,:.;;"'__:o~ ";<>'.""""" ,-',-----'--'-"1'--/-,;:,- ".~"",," ~. 1 ,c'," o o LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. .;(, C7JV. .3 96' C;;tJ.1 r ~ HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW COMPLAINT AND NOW comes the Plaintiff, LCL Income Properties, L.P. II, t/d/b/a Bunker Associates, by and through its attorneys, Friedman & King, P.c., and brings this cause of action against the Defendant and avers as follows: I. The Plaintiff, LCL Income Properties, L.P. II, t/d/b/a Bunker Associates, is a New Jersey limited partnership and is the owner of Bunker Hill Apartments, Borough of Wormleysburg, which it leases to the public, with a principal place of business at 1100 Yverdon Drive, Camp Hill, Cumberland county, Pennsylvania 17011. 2. The Defendant, Harvey Hoffman, is an adult individual residing at 1200 Yverdon Drive, Camp Hill, Cumberland county, Pennsylvania 1701l, and is the owner of 16 townhouses contiguous to Bunker Hill Apartments in the Borough of Wormleysburg. 3. The Defendant has"'cbntinuously {improperly and illegally utilized the sewage pumping station of Plaintiff since Defendant purchased the townhouses contiguous to Plaintiff. j ;'" -"," -,,~, - - '"",""g-,-~--<I~~i'=>"-''-O.'''''_, o o 4. Said utilization of Plaintiff's pumping station is without the permission of Plaintiff. 5. Plaintiff has made demand on Defendant of a contribution to the cost of maintaining the pumping station directly and through counsel, and has received no response. 6. Defendant is being unjustly enriched by utilizing the pumping station of Plaintiff without its consent and without remuneration to Plaintiff. 7. Plaintiff has computed that the proportionate share of the cost of maintaining the pumping station is $75.00 per month to be attributed to Defendant, and notice thereof was given to Defendant through counsel. 8. In spite of numerous demands and telephone calls, the Defendant has ignored Plaintiff's request for contribution to the maintenance of its pumping station. WHEREFORE, the Plaintiff demands $75.00 per month from the time Defendant purchased his townhouse units until the present time, together with costs and interest, in an amount not in excess of $25,000.00, and therefore to be submitted for 4- ," ~--,:;" > ,,,:....,._,'_~',,'_""',,,,'.;.,,__,j -~,,'_ '-'):<o"'.;I"'~""'!;;.~h_ " .,,-;',-;"-:/'_1 . . o o compulsory arbitration; and further demanding the sum of $75.00 per month in the future so long as Defendant is utilizing Plaintiff's pumping station. Respectfully submitted, FRIEDMAN & KING, P D.teo,Ao.JJ.d4J:h~ . Friedman, Esquire 600 N. econd street Penthouse suite P. o. Box 984 Harrisburg, PA 17108 (717) 236-8000 f/p:pleadings\bhill.cmp s , , '~~ -- ';---"~-; "---':.- ."^"."," ;" '-I~;';c~-,..:. ''-',_', '._ , -, , , o o . ' VERIFICATION I, Elliot S. Leibowitz, hereby acknowledge that I am a General Partner of Plaintiff in the foregoing action; that I have read the foregoing Complaint; and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S, section 4904, relating to unsworn falsification to authorities.~.~,~/, ~/~>..", ~-/~._'-'_.. Elliot S. Leibowitz Dated: ~~ ~ . ~ "l ~ ~ ~ ~ Ui >~ ~ ;? 8 ~ S l:I:l "tl zoo F>t Pp~:zn ;?tllog~~~ Z '" n w ... Z >4 tll 0 tJ. l""I ~tOcn~~z t'l !Xl S t""4o :<l ~ t-l (f} tJ.: _ ~ ~ ~ ill ~ ~ C1 ~ , :; o 0> (', \.v "1 ~$.~ "....., , '-"" INTERNATIONAl, INC. LEGAL., A DIVISION OF:L~L~T~~GY' 0715$-WH ALL..stfOi';':MNO.: 07152-Bf'071. , .. , '''1 '.,.,1 i ?J;r-'R (J)'1:11:"' O' H nHZ ~Hn bJ" 9 (J)rtETI '" O:I-d a~ 'rn P>;q ttl'-l 2t;1 gj.(J) ::0 ~a~z ;::i' rn sJ ~ ~~ '-l @o ~ ~ Z n , ~~ i . 9 ril~ ~'1:1 ><1:"' ~~ H )> n ~ ~ 2"1 ::r: I ~ t:i (]) til' "" p. ~ >cJ I-' P> ..... ~ ..... H, H, --8 '4 ~ 8 ~ \) (') a 0 ~~ S 0 "Tj 2 - c_ :D ' ~ .:s.. '~rl C) -eJrG :;::::..0 .~ ,;...~ mrp ",,,,,,-- --hl C Z'-,") r.;) ~ ~~~; .,~ .0 I I ~=!~, D ~ r:o -0 ~f~ .(:' <: :A 1:) d?',-. .c: ~ ;:;6 ~? F >c: --...0 :z; Xl -, .:;:- -< ~ -< . . ,,"-',", '<, -, "",~"""',,, "-:'"y: o 0.....: ... r '-i'b--;"~!,ct,;w i---,-,""~,,, """~,,:,,~~,f"~,,,~ o o "'Li,",j;:""m."'",~c-, , '7 '?' "'" ". -'~ .-",,~ ',",-~o.c,-~.~.) q',,_ ",' ,-- 0"',"" ,.1_..:: .~.~. -', o .. v LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW ACCEPTANCE OF SERVICE I certify that I accepted service of the Complaint on J",,,,,,, ~( J..(" ).000 , , behalf of the Defendant, Harvey Hoffman, on 2000, being authorized to do so. Respect lly submitted, Date: -l- J- ~ - )000 Darrell C. Dethlefs, Esquire P. O. Box 368 Camp Hill, PA 17001 (717) 975-9446 ~ n..,.., , v o (") Cl '-. L-:1 ?:r -n "'D CU t-q m ,..:". l::::'1 Z -'T'. Z S~ I UJ r',) -< ~:: c ~-, ;> C' Z () )> c: C;~ :;.?..: 1;; --j :"'--l -<- -..l =< " c . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY LCL INCOME PROPERTIES L.P. II, tJdlb/a BUNKER ASSOCIATES, Plaintiff v. HARVEY HOFFMAN, Defendant CIVIL ACTION -LAW No. 2000 - 395 CIVIL TERM NOTICE TO PLEAD TO 1HE PLAINTIFF NAMED HEREIN: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO 1HE ENCWSED ANWER WTI1I NEW MATfER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MA E ENTERED AGAINST YOU. BY: Darrell C. Dethlefs, Esquire 3805 Market Street P.O. Box 368 CampHill,PA 17001 (717) 975 - 9446 Attorney Identification No. 58805 1"';,0:, '" ~,~ ,,~ l' o . IN THE COURT OF COMM:ON PLEAS OF CUMBERLAND COUNTY LCL INCOME PROPERTIES L.P. II, t/dlb/a BUNKER ASSOCIATES, CIVIL ACTION -LAW Plaintiff No. 2000 - 395 CIVIL TERM v. HARVEY HOFFMAN, Defendant DEFlENDA,NT'S ANSWER WIlli NEW MATTER TO lliE COMPLAINT OF THE PLAINTIFF LCL INCOME PROPERTIES. L.P. IL tldlbla BUNKER ASSOCIATES 1. Denied. After reasonable investigation, answering Defendant is without sufficient knowledge or information with which to form a belief as to the truth of the allegations contained in this paragraph. Strict proof of same is demanded at time of trial. 2. Admitted. 3. - 6. Denied. The allegations contained in this paragraph contain disputable issues and/or conclusions of law to which no response is required under the applicable Pennsylvania Rules of Civil Procedure. Strict proof of same is demanded at time of trial. 7. Denied. After reasonable investigation, answering Defendant is without sufficient knowledge or information with which to form a belief as to the truth of the allegations contained in this paragraph. Strict proof of same is demanded at time of trial. 8. Denied. The allegations contained in this paragraph contain disputable issues and/or conclusions of law to which no response is required under the applicable Pennsylvania Rules of Civil Procedure. Strict proof of same is demanded at time of trial. WHEREFORE, the Defendant demands judgment in his favor and against the Plaintiff LCL Income Properties, L.P. II, t/dlb/a Bunker Associates. 10 :1 o . NEW MATTER 9. The claim of the Plaintiff is barred and/or limited by reason of the statute of limitations, inasmuch as suit was not instituted and service of process was not made within the applicable limitations period. 10. The Complaint fails to state a claim upon which relief can be granted as against the answering Defendant. 11. Any damages which may have been sustained by the Plaintiff were caused through the sole negligence of a third party over whom the answering Defendant exercised no control. 12. The Plaintiff s damages, if any, were caused by the acts and omissions of persons or parties other than the answering Defendant. 13. If any amount is owed to the Plaintiff, it is owed by persons or parties other than the answering Defendant. WHEREFORE, the Defendant demands judgment in his favor and against the Plaintiff LCL Income Properties, L.P. II, tJdlb/a Bunker Associates. BY: Darrell C. Dethlefs, Esquire 3805 Market Street P.O. Box 368 Camp Hill, PA 17001 (717) 975 - 9446 Attorney Identification No. 58805 If ,-- ~ I ' o o IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY LCL INCOME PROPERTIES L.P. II, tJdlb/a BUNKER ASSOCIATES, CIVIL ACTION -LAW Plaintiff No. 2000 - 395 CIVIL TERM v. HARVEY HOFFMAN, Defendant CERTIFICATE OF SERVICE I, DARREll C. DETHLEFS, do hereby certify that on this '1 h day of ~S"'l . 2000, I did serve a true and correct copy of the foregoing document on all counsel of record by depositing a copy of the same in the United States mail, first class postage prepaid, addressed to: Richard S. Friedman, Esquire Friedman & King. P.C. 600 North Second Street Penthouse Suite P.O. Box 984 Harrisburg, PA 17108 BY: Darrell C. Dethlefs, Esquire 3805 Market Street P.O. Box 368 Camp Hill, P A 17001 (717) 975 - 9446 Attorney Identification No. 58805 /~ I.- ~ -.........;;;.;; - , ,,-. ~ -1-- - ',I ;,1 ;1 , I I o ." , VERIFICATION I, , being sworn or affIrmed according to law, do depose and say that the information contained in the foregoing document is true and correct to the best of my information, knowledge and belief, subject to the penalties imposed by 18 Pa. C. S. ~4904. 1I~1# /3 .J U8 ~....";....a~ f<~ ..,.".~__,.." J.."""" ^...... W I',~ " o 0 CJ C:.. C C;) -;;;;0>- 'T1 -r.]C;:': --" rll{"'q ~''i :z' " ,'~'" ~~,; 1 'i" ,'Yl <Xl !:::=J ; <I.....~,,' ~~ () E.Ci \,.' -- L{~ --'~ '0;:2(7) )> ~._) f;1 c: ~rn ~ (.1 :0 -< ,~ <:F" _,,> ,1.0...--,'-' ~,:,.>', [.-,'" _'''''',_'';;- ---''cL_, ~'_.."/~.,~. __' ,"'j , -: '~'~:-.1;2;t,~ ..,;, "_,' -, _'" ... . AI. . , <;"", j 1 I I I .1 .. LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND NOW comes the Plaintiff, by and through its attorneys, Friedman & King, P.C" and answers as follows: 1. The allegations contained in paragraph 9 of the Defendant's New Matter are denied as a conclusion of law. 2. The allegations contained in paragraph 10 of the Defendant's New Matter are denied as a conclusion of law. 3, The allegations contained in paragraph 11 of the Defendant's New Matter are denied as a conclusion of law, To the extent that an answer is required, it is denied that any third party was negligent, and even if there were negligence involved by a third party the Defendant is being unjustly enriched, 4. It is denied that the Plaintiff's damages were caused by acts and omissions of other persons. Moreover, it is averred that the Defendant continues to enjoy unjust enrichment by utilizing property of Plaintiff. 5. The allegations contained in paragraph 13 of the Defendant's New Matter are denied as a conclusion of law, 14- ;~-"""I'- ,.",--" - "",;. , ,. "-,' ',-;:- ~'k',"J ~ -,,'(,' ,.'. '''-,.,~, ,< ..-c :T' . -.~' ';"~ 1 " .. . .. . WHEREFORE, the Plaintiff demands $75.00 per month from the time Defendant purchased his townhouse units until the present time, together with costs and interest, in an amount not in excess of $25,000,00, and therefore to be submitted for compulsory arbitration; and further demanding the sum of $75.00 per month in the future so long as Defendant is utilizing Plaintiff's pumping station. Respectfully submitted, FRIEDMAN & KING, P.C. Date~~ {(",,;}yy., S. Friedman, Esquire 600 N. Second Street Penthouse suite p, 0, Box 984 Harrisburg, PA 17108 (717) 236-8000 f/p:pleadings\bhill.ans -- (6 ;o'",s,'.I',__ "._''. -,~.,-,}.._;;"-,,,} :--',:-L-I~> "" I ... ~ . " . , VERIFICATION I, Elliot s. Leibowitz, hereby acknowledge that I am a General Partner of Plaintiff in the foregoing action; that I have read the foregoing Answer to Defendant's New Matter; and the facts stated therein are true and correct to the best of my knowledge, information and belief, I understand that any false statements herein are made subject to penalties of 18 Pa, C.S. section 4904, relating to Dated: ~y:~ I~ ;:'cf_,I>,--~ j ... . LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, Plaintiff v. HARVEY HOFFMAN, Defendant '~_"___' 'J 0'-, '~"'.; ,:,! "0 O' >:>~r-~> ., _ C_,'" '';;'0 ..., . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2000-395 civil Term CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Richard S. Friedman, Esquire, hereby certify that on February 16, 2000, I served a copy of the within Plaintiff's Answer to Defendant's New Matter, by depositing same in the United States Mail, first class, postage prepaid, addressed as follows: Darrell C. Dethlefs, Esquire 3805 Market st. P. O. Box 368 Camp Hill, PA 17001 FRIEDMAN & K , P.C. Richa d S. Friedman, Esquire 600 N. Second Street Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 "')- , l ~' ;i !:; r; j! r, I.: I: , , L ii' I' . i; [ t7 , c I!"'->",,~ """" . .. ,j . . ('~ .." -. .~ \-/ AlJ.-5TATE LEGAL. A DMSION OF ALL-STAre- INTERNATIONAL., INC. FORM NO.: 01162-BF' D1153-BL. 01156-GV. 07158-WH ~ = "l = ~ III ., = ~ ..., q 'tI;ig OJ = ~ ~ " , Z ~ 9~~ > ;i Z Z tllO en ~ z ~ ~ ~ ~ ll' z ~ ., to en ~ ~ ~ ..., ~ Ql q ~ Z j> ~ en'"'" > ~ Z ~ ~ ~ . ~ ~ I. > ::; 0 5 Ol (") 0 ,~ C 0 ':.:/ >~""- .uq (' I r,-, , UJ .J ;f~ ,J ,~ " C_;) )" -- r r:;~ <, , ~-) C ;~ -l~ .- ~--~ " " (') )~ ;; -~';) :;::) rn ---I ~:., i'.' );:.: :(, Cl .:::lJ -< o , ' ~~ 1 ~: "- \. \ /~ ,,-~/ '~""ih'~'"',~""nti ~,ld~~,." .'" .- , , - .., ",'-,- i "~",,,~,:,'_,b.t'iio'1 ',",.-or_", ,~.~"",,;,,-,_,,,,,:,;,...i<U o o , L"~";-,"',' "",."~,,,~,,,!j~~~"'_. , 4 . . I g / ~.- I - "~- ~-'.",- ~ . o IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LCL INCOME PROPERTIES, L,P, II, t/d/b/a BUNKER ASSOCIATES, Plaintiff NO. 2000-395 CIVIL TERM :we v. HARVEY HOFFMAN, Defendant RULE 1312-1. The Petition for Appointment of Arbitrators ilhall be substantially in the following form: PETITION FOR APPOlNTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Richard S. Friedman, Esqqire respectfully represents that: . 1. The above-captioned action.~ is~al issue. 2. The claim ofthe plaintiff in the action is $ 75.00 per month The counterclaim of the defendant i!1,;the action IS N/ A , cQunsel for the plainti~ in the above action OOX~, from date of purchase by ])ofendant The following attorneys are interested in the case(s) as counselor are otherwise disqualified to sit as arbitrators: Richard S. Friedman, Esqui'f'e and Darrell C. Dethlefs, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. foregoing petition, Esq., and A,.I actions) as prayed for. Rich S. Friedman, Esquire ORDER OF COURT Frie & King, P.C. P.. Box 984, Harrisburg, PA 17108 , ~ ~n consideration of the Esq., Q,A4'-/~ ~<"'~ , Esq., are appointed arbitratofs';n the above captioned action (or PJ. /1 " II 11F':~':F8:: (}_ *,' 1'1' l(};~t.,RY fliJ' IIi! I R ,;1-" g: nQ ,.)'4 .. J~~ . '-' .'1 I. ,w CUMB::FilR~D COUNi'{ PENNSYLVANIA fi: .3 ~ ')- -< ~ ,-- 0 N 8:;1; ~:!7. ::..-!.t; :!C o~ H-~t Q.: Q::l ~ ~ yr.) ~ ~lg~ 0'\ :;j:fu ~ <,,, ___'z Ei\~ . 2: O:ro W' -..- ~ tOo.. ,--- =; :::Ji' 8 ...... 0" LL = :::J 0 <::> <.) vj 1u 1l "- \:J ~ b}. i i r"",,"", , , ,. ,y ~ v ',"'.- OJ__, , :,-r (0 ---,"" " ",,'~_""~''''''~1ll!II -_.- ~~lJ!lPI~ !~ . ~- "" . I: .1 .. c o LCL INCOME PROPERTIES, L.P. II t1dlb/a BUNKER ASSOCIATES, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff NO. 2000 - 395 CIVIL v. HARVEY HOFFMAN, Defendant MQTION FOR CON1]~UANGe; 1. The above - matter is scheduled for arbitration on September 26, 2000 at 9:00 a.m. 2. The undersigned represents the Defendant, Harvey Hoffman, in the above - matter. 3. The undersigned is scheduled to be out of the country from September 21, 2000 through October 1, 2000 on a prepaid vacation, 4. The undersigned requests that this matter be continued. 5. The undersigned contacted Richards S. Friedman, Attorney for the Defendant, who opposes the continuance. 6. This is the first request for a continuance in this matter. WHEREFORE, the Defendant respectfully requests that this matter be continued. ~() --' '"~ .. , ~~ I, o o ~C.Dp~ Darrell C. Dethlefs, squire 3805 Market Street P.O. Box 368 Camp Hill, PA 17001 (717) 975 - 9446 Atty Id. No, 58805 ,I " o'Zl ,~ .. '-'" . I ",-. ~It!!l:i -"- .. c o LCL INCOME PROPERTIES, LP.II, t1dlb/a BUNKER ASSOCIATES, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff NO. 2000. 395 CIVIL TERM v. HARVEY HOFFMAN, Defendant GERTIFICA TE OF SI;RVIs:;e I, Darrell C. Dethlefs, do hereby certify that on this {,1-- day of 5::-i*- 1<, , 2000, I did serve a true and correct copy of the foregoing document on all counsel of record by depositing a copy of the same in the United States mail, first class postage prepaid, addressed to: Richard S. Friedman, Esquire Friedman & King, P.C. 600 North Second Street Fifth Floor P.O. Box 984 Harrisburg, P A 17108 ~C.~!IfcC- Darrell C. Dethlefs, squire 3805 Market Street P.O. Box 368 Camp Hill, PA 17001 (717) 975 - 9446 Attyld.No.58805 J~ ...... ~ "lIIiI~bitr.tOO'J"li:ij,~!iIiiIlIDli!IiMi!R~~~~~Ji!&~;'~>-"- /1"", \..-. (' ~ '-'.,(> ""'\' , J l",~ ' ~, . i, c, ';'; ',,/ '.,', ,x ~.. " ',i.',<'I':' ,,, .~- t" <ioiWI/ c ...~. U{',-,': "~~~! yC; ~S=~ >c: z :< ~f) ''1 .----:;. i~, ?,~ .~? :.0 .C- ,""" .'" i ~ " (""; *." ,',:- .._.J ~~ ~. -< !IT: ~l!!!l".. ~~~~ lili ~ "" I _~ _ ~ ~i o o , SEP 1 3 2000 &7 LCL INCOME PROPERTIES, L.P. II Vd/b/a BUNKER ASSOCIATES, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff NO. 2000 - 395 CIVIL v, HARVEY HOFFMAN, Defendant o Q~ fJ-- AND NOW, this ( day of ~ ,2000, upon consideration of the Defendant's Motion for a Continuance of the Arbitration scheduled in this matter for September 26, 2000 is GRANTED. ~".~~~~. fr"^1rt-~ ~ If) I' ~ .\b~OO l)C{~ JJ "" ."" , '"~ ,,' , :i', /!,\ II'"-,.'r;, ~ ". ,',' o i ~-.: ,~ ~1 (") g ~i r;; en ..", ;."1 Zt: ." ;~:1-,'1'] (be '';)In ~ <:Jl ,'~.., ..J .... 'J ~8 :r:.. :;:J,Q :::lI: B.::d - -,.~ ~ - (5" ~ ':c{ I'\;) $ -< '" '" ;\ " () ~~~f';;iil",'!!"!~,ffll!llI'rt!I!JI!-~~w.i!il!OO~,..o'l_"lI"'",....J!l!ll,.- , "IP'i'!'!. - " .- ~ _I a;o-kit: 1-1 ~rl/ ~ 1 1-+0 (lr-~___ fJr<> Pe,A'~ I ), 2 ) ) ) ) o In The Court of Common Pleas of ) L ~L.. ~ 0 ...L '" LeJ w"\J1 Cumberland County, Pennsylvania II, No. , Z[)O(!) - 3<J~ 3JJr OaTH l.e do sOlemnly swear (or affirm) the Constitution of the United States wealth and that we will discharge the that we will support, obey and defend and the Constit~tiQ~ of this Common- duties ~a "4 fidelity. R ...rT 6- f: ~ C '-, . ~~i!!: ND",- 1,<>"" AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) \ 1"'- ~\.J" t {:-~ /1.-", d Cl.-j o-{~~ T ~ ~~.Jr:sr oP-- ~ k3~ r- oJ;- '<... c..o 51:::>. ~,O"'- DV 't 5"0 . .J AVQ \J..,,'\ I 1'11'15; J .I r "^ ~Q.j Dr ~ F \us (,..J:~~s\ f> c-1" '\'\ ~;; \-0 \0 .QcJ' e>~ ~~ ~ '" J",S- s ~ \k. .u _', " 1""-' () v--f'.. applicable. ) . Arbitrator, dissents, (Insert name if Date of Hearing: eJ cJoL-u-- Date of Award: 0 r Ie> b-eJ' 70 ZDOO 1 2-e:> 200 () ) NOTICE OF ENTRY OF AWARD Now, the,;{o-l-l..aay of ~b'W'L .,UoO, at~, f9.-..11., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. .~. . Arbitrators' compensation to be /S:,I a/J~..) I:) "'_ paid upon appeal: ' rotho ary $ .290_00 BY,~O..--L.' ~. ?;jCl//JA"rt.r--- Deput ~LL i ,."~__""",_""_""",,,,"",,__o-"'A," .",,"h"'.' . ~ t, ~ ~ \,> .. , C) ~ {~~ -J ~ t~, t~1 s: ~ l-j rr~ ~ ~ '1--.... ---c. ~ ~ ,i j; g: ~~ ','," <<:,~, I" }/ J >Db ".~~." o ~r <7-- _ u (I -< ~ t (if' Ri r--Z. I ~JJ , ~i ! C) (';~i <;~~ '.-' ~. ~ ,,>"C . ;,~ , i "".~ "~ . I ~ ~, c o , LCL INCOME PROPERTIES, L.P.II, Vd/b/a BUNKER ASSOCIATES, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff NO. 2000. 395 CIVIL TERM v. HARVEY HOFFMAN, Defendant NOTICE OF ApPEAL FROM AWARD OF BOARO OF ~fU~l1RATQ8S TO THE PROTHONOTARY: Notice is given that the Defendant. Harvey Hoffman, appeals from the award of the board of arbitrators entered in this case on October 20, 2000, A jury trial is not demanded. I hereby certify that: (1) the compensation of the arbitrators has been paid. ~(. ~J~ Darrell C. Dethlefs, squire Attorney for the Appellant 3805 Market Street P.O. Box 368 Camp Hill, PA 17001 (717) 975. 9446 Attyld. No. 58805 Jj~ BIIlil!I~lIilliII~~~~2-!_~&~~1:1~Iil'f'I1m~w.Jli,i\iWi!"" ~,. ~......d,-" ":;',' '".' L'),. '1 ,1,,,.-. '.'. p"\ \,..i ./ .,; '\'i 'I,', . ", ";,::i ", " i", ">,'i "',0 ~ ,-;; ;}~:; '1 /' " ':" ~ , 0"" ",: ""~""'~--- o .-.'" ;'1,(" L' " "f, "'j" ."("',. ; ~ " ";., () c: <' .,::e$ . 'F.I1-rTj{ Z::c Zc- CO,'" :~,:l2:' !<:O """ ~8= :PC' C1 ,~ ,"J '~ '" :>::: ''',0 '",.::: "'''',': i ~' > .~ , <:) o o "T1 I CO ;":~r ;f! -:-,fT1 :~;jO ,:~6 .,J"'; ;'-),11 ~p:O Om --I s:; -< c- :\t --~" - , :wI. ., c o .,' LCL INCOME PROPERTIES, L.P.II, tIdlb/a BUNKER ASSOCIATES, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff NO. 2000.395 CIVIL TERM v. HARVEY HOFFMAN, Defendant Cj;RTIFICATE OF SE;8VICI; I. Dam~1I C. Dethlefs, do hereby certify that on this 2nd day of October, 2000, I did serve a true and correct copy of the foregoing document on all counsel of record by depositing a copy of the same in the United States mail, first class postage prepaid, addressed to: Richard S. Freidman, Esquire Friedman & King, P,C. P.O. Box 984 Harrisburg, P A 17108 ~(. ~M/2::- Darrell C. Dethlefs, squire 3805 Market Street P.O. Box 368 Camp Hill, PA 17001 (717) 975 . 9446 Attyld,No.58805 J.' ~llilI~_..,t~'<- lII;~Ill~~Ilili~~~~"""'II&"1;@!~' -~ (~\ " , '"*'" , ,,' : /: \ ,-' -; ~!-,. ,-'." " ,,' I:-~ ( " .,,' -,,(' ;'1" ~ ' " . .;-- ~ " ~ "'.' \ " ;'^t.. "~.;' ", ',... ....~(:,' " "," .~. '~ "! ;, <- ~ ~. ~, ,j, . ~ 0:' ", ,~, ~ ;(~l .'", '-,",'",,": '.: ,", .~ ~'.~j -- "-" ,.,', 0"; , :';, ;~ .,~' , ~ ,,;(\.. \:!) '.i- '\ ~ "~U (") C -".. CO Eis. ' Ptrrn:' z::n :;.-::r 'CO,,,> ,,<Z ~G ~Q.. --.-0 PC: ~; , 'P> .::l\'= S' ", ;/:,;, -"..' ,< c:' o ;;z: o ~ o " ~ f~'l'JJ , l:"'fT1 ~g,? :...{Q 6.:11 :,"Z(") ':om "" ;~ '< I ,ep ~ " ~ '""", ... . .. ~ .- 1 ,"" '0-' ~ () . r . LCL INCOME PROPERTIES, L.P.II, tldlb/a BUNKER ASSOCIATES. COURT OF COMMON PLEAS CUMBERLAND COUNTY. PA Plaintiff NO. 2000 - 395 CIVIL TERM v. HARVEY HOFFMAN. Defendant tv10TIO~ OF DEFENDANT TO AMI;;ND ANSWER AND NEW MA TIER And Now, comes the Defendant, Harvey Hoffman, by his attorney, Darrell C. Dethlefs, and moves this Court to grant the Defendant's request to amend his Answer and New Matter to assert an additional defense of Release based on the following considerations: 1. The Plaintiff filed a Complaint on or about January 21. 2000. 2. The complaint involves the sewage emanating from the 16 townhouses owned by the Defendant contiguous to the Bunker Hill Apartments owned by the Plaintiff in the Borough of Wormleysburg 3. The Defendant's Answer and New Matter was filed on February 8, 2000, 4, The arbitration of this matter was scheduled for October 20, 2000. 5. Prior to the arbitration the Defendant's Counsel learned that there was a Release signed between the prior owners in regard to the sewage emanating from the 16 townhouses contiguous to Bunker Hill Apartments in the Borough of Wormleysburg. 6. At the Arbitration, the Release was admitted into evidence and the parties argued the applicability of the Release to the facts of the case. )..7 ~~ ,-, " .' " . to 7. The Defendant wishes to amend his New Matter to assert the defense of Release. 8. Pa. R.C.P. 1033 provides for the liberal granting of amendments by the trial court, 9. The Plaintiff will not be unduly prejudiced or unfairly surprised by the Defendant's request to assert the additional defense of Release. 10. The Defendant's proposed additional defense does not contradict any positive rule of law. 11. The Defendant has not waited an unreasonable amount of time to file this Motion. 12. This Amendment will allow the case to be decided on its merit. Wherefore, the Defendant respectfully requests that his Motion to Amend Answer and New Matter be granted. --~.. D rrell C. Dethlefs, Esquire 3805 Market Street P.O. Box 368 Camp Hill, PA 17001 (717) 975 - 9446 Attyld.No.58805 .-1]." ~"" ~-" oZJ " . o o .. . LCL INCOME PROPERTIES, L.P.II, tldlb/a BUNKER ASSOCIATES, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff NO. 2000 - 395 CIVIL TERM v. HARVEY HOFFMAN, Defendant CERTIFICATE OF SERVICE I, Darrell C. Dethlefs, do hereby certify that on this lJ day of (JG/J<A"L- , 2000, I did serve a true and correct copy of the foregoing document on all counsel of record by depositing a copy of the same in the United States mail, first class postage prepaid, addressed to: Richard S. Freidman, Esquire Friedman & King, P,C. P.O. Box 984 Harrisburg, PA 17108 Oar . Dethlefs, Esquire 3805 Market Street P.O. Box 368 Camp Hill, PA 17001 (717) 975 - 9446 Atty Id. No. 58805 cL7 !IilliJd'-' I "IWiIIIIlI .~~~ .~- ".,"c'''n J o ~- o "" ,,- "" " r " '1 (") 0 0 c: 0 -n S- o --< -0 OJ r"1 r~1"'"r1 mn"1 c"') -ot;; Z':D I zr- :O~ en,," J:'" <:) '<Z -"'- !;2CJ -0 :!::d :x 0- ~() zg :fiG <a ~ 'C: ..~ r-> ~ .- . , """ ;,~, o 0 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) for JURY trial at the next term of civil court l:XX) for trial without a jury. .~--~._-_...-.-:------------~.--------~..~-_..-_.......-.._.._.._-.~-------_..__.._._._-_.....~------------_.._....._-.~-----.....--.......---.............---..--........---...--.....---...-----~. CAPTION OF CASE (entire caption must be stated in full) , (check one) Assumpsit (XX) Trespass LCL INCOME PROPERTIES, L. P. II, t/d/b/a BUNKER ASSOCIATES, Trespass (Motor Vehicle) (other) (Plaintiff) vs, HARVEY HOFFMAN, The trial list will be called on :!:leceJ:lber 31, 2001 (Defendant) vs. (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Ruie 214-1.) No. 39S Civil Term ~~lOOO Indicate the attorney who will try case for the party who files this praecipe: Richard S. Friedman, Esquire f . 'f k Darrell C. Dethlefs, Esquire / Indicate trial counsei or other parties I nown: ___'___m_'_________-"_ __, This case is ready for trial. Signed: _ Print Name: _ Richar~~:___Friedman, Esquire Date: 11/7/01 Attorney for: Plaintiff 30 .""" ," -~'''-~~ ~ ~-~ o Mii ~ ., -"'" r" '" - Q '" '-"" ," , 0 r 0 ':.0/, c: = z ~ -OC,: c'"J rn1"'l" ..C ..-. Z :":C.i I ;"-;7-n zr , -,j ~~:~- \D (~) -- f<: C) -a -I' -,~" , ;:-7::, >~i -'-'" ::.:;" zt~. ;,::::. (6 c-() '~ Pc: -.A '7' ,;- ;po ~ (,) ~ ~ , , -"; o <<I LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW HARVEY HOFFMAN, Defendant NO. 00-395 CIVIL TERM ORDER OF COURT AND NOW, this 15th day of November, 2001, a pretrial conference in the above matter is scheduled for Thursday, January 10, 2002, at 1:30 p.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is scheduled for Wednesday, February 27, 2002, at 9:30 a.m., in Courtroom No. I, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, U/~ .oA ., J) GY~~~ (') 0 () C "I"~ ... Z "I -Om c:> +i~ 2~:H <: zI);: 0"\ ~_~,:;S3 ~:2:: !.~~ [::0 -u j; z8 3: -= () 'Zrn :i>c ~ q ~ 'J1 ~ -.I ~ Richard Friedman, Esq. P.O. Box 984 Harrisburg, PA 17108 Attorney for Plaintiff Darrell C. Dethlefs, Esq. 3805 Market Street P.O. Box 368 Camp Hill, PA 17011 Attorney for Defendant j( . "" , "~~-~'ii ~'" - . ';...,., -, . . . LCL INCOME PROPERTIES, L.P.II, Ud/b/a BUNKER ASSOCIATES, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V, HARVEY HOFFMAN, DEFENDANT : 00-0395 CIVIL TERM ORDER OF COURT AND NOW, this _, t!-- day of December, 2000, a Rule is entered against plaintiff, LCL Income Properties, L.P.II, Ud/b/a Bunker Associates, to show cause why the relief requested should not be granted. Rule returnable fifteen (15) days after service. Any answer filed shall be forwarded by the Prothonotary to chambers, :saa ?J~ . :~. - . , 0.... . . ,~, ,~ > "'" FII/"c . ''t' 7l....~"cD~Q'.r, , ;,,t- Dr;,- t'r,i0f:' , 'i? 1/" II..,..... 00' t;tWOTA.9 Dte !;; y "', , ~ PI! 3, (..v!i;fi];:.> . 37 p~t//s~~ljt~E.4VTr 0'...' , . ~J.rHlJl >.~~~~ _~ -"'" ,- .___1 ~ -. o o LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW HARVEY HOFFMAN, Defendant No. 00-395 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the chambers of the undersigned judge on Thursday, January 11, 2002. Present on behalf of the Plaintiff was Richard S. Friedman, Esquire. Present on behalf of Defendant was Darrell C. Dethlefs, Esquire. This is a civil action for unjust enrichment arising out of Defendant's alleged use, without authorization, of a sewage pumping station owned by Plaintiff. Plaintiff seeks damages in the amount of $75.00 per month from August IS, 1996. This will be a nonjury trial of an estimated duration of not more than one-half day. By separate Order of Court, the nonjury trial has been scheduled for Wednesday, February 27, 2002, at 9:30 a.m. Issues which may arise at trial include the effect of the statute of limitations pertaining to claims for unjust enrichment. Counsel are requested to furnish brief memoranda to the Court prior to the commencement of trial on the issue of the statute of limitations. 3~' It ~ . -' ~ ~ 'I,,,,",, "" Ur p'''- ...h: ~-[~-<)(r;:~:E ':'::TiHY I G 1'\1'1 ill: 28 ~U' "", I "", ,-,' UI '"TV ,c, h/ibtj"'li_h,\;LJ I~U '~l j PENNSYLVANIA " y,''''" , ;",,..; () ~, In r'r.~m511j!.rm,!'W!~~,~__< .~." ~~ '" . , 0 o o With respect to settlement negotiations, it does not appear to the Court that this matter will be resolved short of trial. A second issue which may arise is the question of the admissibility of an alleged release between predecessors in interest of the parties in favor of Defendant's predecessor in interest, in light of the fact that the answer filed by Defendant was apparently not amended heretofore to include such an affirmative defense. By the Court, Richard S. Friedman, Esquire For the Plaintiff > ~ ~ 1- I~- o.J.. Darrell C. Dethlefs, Esquire (j.-. For the Defendant wcy 3li ~ ~,~ ' , I ." ;, L. ~ """"k 0,. , . LAW OFfICE OF DARRELL C. DETHLEFS By: Darrell C. Dethlefs, Esquire Attorney Identification No. 58805 3805 Market Street Canlp Hill, PA I701I (717) 975-9446 Attorney for Defendant, Harvey Hoffman LCL INCOME PROPERTIES, L.P. II, plaintiffs : IN TIlE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v, : NO. 2000-395 Civil Term HARVEY HOFFMAN, Defendant ORDER AND NOW, this_day of , 2002, upon considemtion of the Motion by the Defendant and the failure of the Plaintiff to show cause why relief should 1IOt be granted, the Defendant is granted permission to amend his defense as to include the defense of Release. J. )) ~~'-""~jO", o o LAW OFFICE OF DARRELL C. DETHLEFS By: Darrell C. Dethlefs, Esquire Attorney Identification No. 58805 3805 Market Street Camp Hill, P A 17011 (717) 975-9446 Attorney for Defendant, Harvey Hoffinan LCL iNCOME PROPERTiES, L.P. II. Plaintiffs : iN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. : NO. 2000-395 Civil Term HARVEY HOFFMAN, Defendant MOTION TO MAKE RULE ABSOLUTE AND NOW, this day of January, 2002, by his attorney, Darrell C. Dethlefs, the Defendant makes this Motion and in support thereof avers a follows: 1. The Plaintiff filed a Complaint on or about Janumy 21,2000, 2. The Complaint involves the sewage emanating from the 16 townhouses owned by the Defendant contiguous to the Bunker Hill Apartments owned by the Plaintiff in the Borough of Wonuleysburg, 3. The Defendant's Answer and New Matter were filed on February 8, 2000. 4, The aIbitration of this matter was scheduled for October 20, 2000. 5, Prior to the aIbitration the Defendant's Counselleamed that there was a Release signed between the prior owners in regard to the sewage emanating from the 16 townhouses contiguous to Bunker Hill Apartments in the Borough ofWonuleysburg. 6. At the Arbitration, the Release was admitted into evidence and the parties argued the applicability of the Release to the fuets of the case, 7. The Defendant wishes to amend his New Matter to assert the defense of Release. 8, Pa.a. C,P, 1033 provides for the liberal granting of amendments by the trial court. 9, The Plaintiff will not be unduly prejudiced or unfairly surprised by the Defendant's request to assert the additional derense of Release. 10. The Defendant's proposed additional defense does not contradict any positive rule of law. 34- ,~-- ... I, ~~ ,~- j - :~-' o o I L The Defendant has not waited an unreasonable amount of time to file this Motion. ' 12. This Amendment will allow the case to be decided on its merit. 13, On December 11, 2000, a Rnle was issued npon the Plaintiff, LCL Income Properties, to show canse why the relief reqnested shonld not be granted 14, The Rnle was retnrnable fifteen (15) after service. 15, More than fifteen (15) days have passed since the Rnle was entered. The Plaintiff did not file an answer to show cause why tbe relief shonld not be granted, WHEREFORE, the Defendant respectfully request that Court enter an Order permitting him to amend his defense to plead release, Respectfully Submitted, LAW 0 OF DARRELL C. DETHLEFS, Darrell . Dethlefs, Esquire Attorney Identification No, 58805 3805 Market Street Camp Hill, PA 17011 (717) 975-9446 3c) .' ~ ~ ~k' o CD LAW OFFICE OF DARRELL C. DETIILEFS By: Darrell C. Dethlefs, Esquire Attorney Identification No, 58805 3805 Market Street Camp Hill, PA 17011 (717) 975-9446 Attorney for Defendant, Harvey Hoflinan LCL INCOME PROPERTIES, L.P, II, Plaintiffs : IN TIlE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. : NO. 2000-395 Civil Term HARVEY HOFFMAN, Defendant CERTIFICATE OF SERVICE I, Darrell C. Dethlefs, Esquire, hereby certify that on this'). ~\l.day of January, 2002, seIVed a true and correct copy of the Defendant's Motion to Make Rule Absolute, upon the party listed below, via First Class mail, postage prepaid: Attorneys for the Plaintiff, LCL Income Properties, L.P., II: Richard S, Friedman, Esquire 600 North Second Street Penthouse Suite P,O. Box 984 Harrisburg, PA 17108 Darre C. Dethlefs, Esquire j(p 0 () 0 0 . () a ~ N ,..." ,,' <- ., :"OCt) ..,,,J rprn "'" -rt "",-c' :it: nlf~!.:! z~' w (j) )" \J:l1 ;:S;ii (.::) <~;y ~ j -0 ::-:;(~) --,.-....-., :?c' ::g "s-n ::f;C-) ry 20 c:: om 2: ::;! W 3i (J) '"" ,'j< .. " - - ""J \"", c J '-,"",~-"" ""~,!"<"-_O;,j!:"h_ "-.;':,~_ll\qi-"tj't~'_l'~:__1.'l'i-;(J "-'i.'<'"'' '.:'C"'..';"r.%-H',-'C.'",":";c;',-, "'~.i!_~~(:I!\:,:I'!!l"iIk"- o (,,~,mo,\ 'y 37 j-' - o. LCL INCOME PROPERTIES, L.P., II, Plaintiff . .',"> IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW HARVEY HOFFMAN, Defendant NO. 00-0395 CIVIL TERM ORDER OF COURT :1- ;.:r'i AND NOW, this 4th day of February, 2002, upon consideration of Defendant's Motion To Make Rule Absolute, a Rule is hereby issued upon Plaintiffs to show cause why the relief requested should not be granted. RULE RETURNABLE within 10 days of service. BY THE COURT, tJ/~ J. esley Oler, l~chard S. Friedman, Esq. 600 North Second Street Penthouse Suite P.O. Box 984 Harrisburg, PA 17108 Attorney for Plaintiffs vbarrell C. Dethlefs, Esq. 3805 Market Street Camp Hill, PA 17011 Attorney for Defendant .~ Lo::.-tt ~'* ) :rc . o r- ...~.- :.0:..'" "'T.Jt); q;~J,; L.::rn-- ~~!E~ r:~C.7 :;;;; $/,,-:J ,-.-(--... )>(d. ~ (~J -'"'j . '--"1 ,:.~J .~ :..::~: CJ ~-=i(~) I,,' ~"'~ "" ~s~ ~ :n -< i)? ,....) (7\ 30 ~ . c o LAW OFFICE OF DARRELL C. DETHLEFS By: Darrell C. Dethlefs, Esquire Attorney Identification No. 58805 3805 Market Street Camp Hill, PA 17011 (717) 975-9446 Attorney for Defeadal>t, Jlarvey Hollinan LCL INCOME PROPERTIES, L.P. n, plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. : NO. 2000-395 Civil Term HARVEY HOFFMAN, Defendant /ti ORDER. AND NOW, tbis2!l day ofFebtuary, 2002, upon consideration of the Motion by the Defen4ant and the failure of the Plaintiff to show cause why relief should not be granted, the Defendant is granted ~ssion to amend his defense as to include the defense of Release. J. 31 1 . ~~ o F'I' "0 ~"FC~ It '~Ur-- ! t OF 7' <C- ~"'~TL'n'IO- Y :t;1:: !"--ht}Ir4____I\ fAR 02 FE8 27 MIlD: 36 CUMBERLAND COUNTY PENNSYLVANIA c:.J"' .n 1'tJ ~ .)~ ~4 . l:d- b~ !O .' ,," ~.mIL[~I~, ~~_jll~:fI_~, ' _,_ ,.11""""",-,,,,,,- ~ .. o . LAW OFFICE OF DARRELL C. DETHLEFS By: Darrell C. Dethlefs, Esquire Attorney Identification No. 58805 3805 Market Street Camp Hill. PAl?O 11 (717) 975-9446 Attorney for Defendanl, Harvey Hotlinan LCL INCOME PROPERTIES, L.P. n. Plaintiffs : IN 1HE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVILACTION-LAW v. : NO. 2000-395 Civil Term HARVEY HOFFMAN, Defendant MOTION TO MAKE!ULE ABSOLUTE AND NOW, this 20& day of February, 2002, by his attorney, Darrell C. Detblefs,lhe Defendant makes this Motion and In SDppOIt thereof avers a follows: 1. The Plalntifffiled a Complaint on or about January 21,2000. 2, The Complaint involves the sewage emanating from lhe 16 townhouses owned by the Defendant contiguous to lhe Bunker Hill Apartments owned by the Plaintiff In the Borough of Wormleysburg. 3, The l)efM1ri,nt's Answer and New Matter were filed on February 8, 2000. 4. The mbitration of this matter was scheduled for October 20, 2000. 5. Prior to the mbitration the Defendant's Coonsellearned that there was a Release $igned between the prior owners in regard to lhe sewage e",.nmillg from the 16 townhouses conti~ous to Bunker Hill Apartments In lhe Borough of Wonnleysburg. 6. At the AIbitration. the Release was admitted into evidence and the parties argued lhe applicability of lhe Release tQ lhe facts of the case. 7. The Defendant Wishes to ameocl his New Matter to assert lhe defense of Release. 8. Pa.R. C.P. 1033 provides for the liberal grnnting of amendmentS by the trial court 9, The plaintiff will not be unduly prejudiced or unfail'ly SUIPrised by the Defendant'l! ttquest to assert lhe additional defense of Release. 10, The Defendant's proposed adQitionai defense does not contmdict any positive rule of law. ~ -.;-~,>.<~ - ~ " 1 .. o o ,11. The Defendant bas not waited an unreasonable amount of time to file this Motion. 12. This Amendment will allow the Cl/Stl to be decided on its merit 13. On December 11, 2000, a Rule was issued upon the P1aintiJf, LCL lncQme Properties. to show cause why the relief requested should not be granted. 14. The Rule was retumable witWn fifteen (15) days of service, 15. More than fifteen (15) days have passc:d since the Rule was entered. The Plaintitl'did not file an answer to show cause why the relief should not be granted. 16, On Februmy 4, 2002, the Court issued an Order issuing a Rule upon plaintiffi; to show cause why the relief requested should not be granted. 17. The Rule was returnable within ten (10) days of service. 18. More than ten (10) days have passed since the Rule was entered lUId served on the Plaintiff. A copy of the Rule is at1llChed hereto as Exhibit. A", 19, The Plaintiff did not file an answer to show cause why the relief should not be granted, W1IEREFORE, the Defendant respectI\tIly requests that Court enter an Order permitting him to amend his defense to plead release. Respec;tfully Submitted, D C. Dethlefs, Esquire Attorney Identification No. 58805 3805 Market Sb1:et Camp Hill, PA 17011 (717) 975-9446 ~( . o o LCL INCOME PROPERTIES, L.P., II, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW HARVEY HOFFMAN, Defendant NO. 00-0395 CIVIL TERM ORDER OF COURT AND NOW, this 4th, day of February, 2002, upon consideration of Defendant's Motion To Make Rule Absolute, a Rule is hereby issued upon Plaintiffs to show cause why the relief requested should not be granted. RULE RETURNABLE within 10 days of service. BY THE COURT, tl/f-rJ 1. l:sley Oler, . Richard S. Friedman, Esq. 600 North Second Street Penthouse Suite P.O. Box 984 Harrisburg, P A 17108 Attorney for Plaintiffs D~ C. Dethlefs, Esq. ~051!arket Street Camp Hill, PA 17011 Attorney for Defendant :rc ._~ ~ -. . o c . ' LAW OFFICE OF DARRELL C. DETHLEFS By: DlJl1'ell C. Dethlefs, Esquite Attorney Identification No. 58805 3805 Market Street Camp Hill, P A 17011 (717) 975-9446 Attorney fur Det'eadaltt. H"",y Hollinan LCL INCOME PROPERTIES, L.P. n. PJaintiftS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ClVILACTION-LAW : NO. 2000-395 Civil Tenn v. HARVEY HOFFMAN, Defendant CERTIFICATE OF SERVICE I, Darrell C. Dethlefs, Esquire, hereby certifY \:bat on this 20'" day ofFebmary, 2002, served a true and correct copy of the Defendant's Motion to Make Rule Absolute, upon the party listed below, via First Class mail, postage prepaid: AttorneysjOr the Plaint#]. LCL1nCQ~ Properties, L.P., II: Richal'd S. Friedman, Esquire 600 North Second Street Pentlwuse Suite P.O.1Jax 984 Harrisfnng, PA 17108 1J~ Darrell C. Dethlefs, Esquire ------ '.; 1-- .... _V", 4-~ ii!iI.~~~~IWi<~''ilWM>:r.m~;,W!~r'~~ ~, ""'. \.oJ ". J <---" ,-<",., o ~, " . ','.I 0 CJ C 1'0 -:?" -<j " r'il nl i:', c.J z: --, , ;'v .,.- __ (f) -< f'".. ,- -)'~' j;; " Z C) ~.: CO -' c: ,~ z ~ ::;i ",-, .-1 ~-' ~ -< . .~,,_. -.- o LCL INCOME PROPERTIES, L.P., II, . Plaintiff v. HARVEY HOFFMAN, Defendant o IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 00-0395 CIVIL TERM ORDER OF COURT AND NOW, this 28th day of February, 2002, upon consideration of Plaintiff's complaint in the above-captioned matter, and following a non-jury trial held on February 27,2002, the court finds in favor of Defendant and against Plaintiff. ~chard S. Friedman, Esq. 600 North Second Street Penthouse Suite P.O. Box 984 Harrisburg, P A 17108 Attorney for Plaintiff ') J'?arrell C. Dethlefs, Esq. 3805 Market Street Camp Hill, PA 17011 Attorney for Defendant :rc BY THE COURT, [op\e:3.Af) o.i \ eJ a:htg-O,2 l ~ ~5 ('''L' ...- ,~;, t': i ~ED"'Or~FlCE - ",', ~'"' ,~, I"'T"R" : 'j -;',) , r-:Ui\U it'l i I 02 FES 28 fltl 9: 2L; CUMf:JE:RU-\ND COUNlY PENNSYLVANIA o f, "","" .'" 0,' 1___'- ~._~~~-- ? ~ - " l. ,,0""" p ~ ~ ~ . '""" -. "'''''';,:~ - , .~ -, ~ - . " ,;L ".c'_ . . ., . . " LCL INCOME PROPERTIES, L.P., II, t/d/b/a BUNKER ASSOCIATES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW HARVEY HOFFMAN, Defendant NO. 00-0395 CIVIL TERM ORDER OF COURT AND NOW, this 12th day of March, 2002, upon consideration of Plaintiffs LCL Income Properties, L.P., II, Motion for Post-Trial Relief, it is ordered and directed as follows: I. The stenographer is authorized to transcribe and file the trial notes of testimony upon Plaintiff's deposit of one-half the estimated charge for the transcript, pursuant to Pennsylvania Rule of Judicial Administration 5000.6. Plaintiff shall be responsible for the full cost of the original transcript. 2. Within 14 days of the filing of the transcript, briefs shall be submitted to the court by the parties on the issues raised in Plaintiffs post-trial motion. 3. The post-trial motion will be decided by the court on briefs. BY THE COURT, Ab"J1Ci'U: ,', ;8U.:<J {d~li:1 D ~ \,t!~.,JV/\iAs,'~r~:Jrl tit Irr."", ....;~, "";,, '':~r~~' I\..L,I; !, :, ; r !i..; <"--I~_J;~l(V'" "',- '... "; - - '''-~''-'''' IV "': T1 .(" "I -I" "J -) tJ: I 'v 1"';0 c. Ui;,l' {L I'" ~ .~ "-'or; _-~" ._ ; '-1~ .. . . ; Richard S. Friedman, Esq. 600 North Second Street Penthouse Suite P.O. Box 984 Harrisburg, PA 17108 Attorney for Plaintiff DarreIl C. Dethlefs, Esq. 3805 Market Street Camp Hill, PA 17011 Attorney for Defendant :rc 47 ... -,-, - - I _" _'J__J -~~ ' :t.,,;--," ~ . o LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 Civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW PLAINTIFF, LCL INCOME PROPERTIES, L.P.r II, MOTION FOR POST-TRIAL RELIEF Plaintiff, LCL Income Properties, L.P., II, hereinafter referred to as "LCL", now moves this Court for Post-Trial Relief under Pa. R.C,P. 227.1, and, in particular, asks the Court to vacate its Adjudication of February 28, 2002 and to Order a new trial as to all issues. In the alternative, LCL asks that the Court now evaluate the various factors it has omitted from its consideration, and that it then direct the entry of judgment in favor of the Plaintiff and against the Defendant by: a. Entering a judgment for the Plaintiff and against the Defendant, notwithstanding the Court's February 28, 2002 verdict; and b. Bringing the Adjudication, both in form and in substance, into conformity with Pennsylvania law. 4-~ '.~ ," " '""-, - '"~--- "-~"J~ ,.1'0.:.,:. -'~- 'I . o , ' , ' ~ THE COURT SHOULD ORDER A NEW TRIAL PURSUANT TO PA. R.C.P. 227.1(a) (1) The reasons advanced in support of this relief are: 1. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release having been objected to by LCL legal counsel as hearsay evidence. 2. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, and not being binding on successors in title by its very terms. 3. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Release by its very terms was limited to claims "from the beginning of the world to the date of these presents", that being May 30, 1972. 4. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Defendant could not have relied on the Release because, as presented at trial, the Defendant did not know of its existence at the time he purchased the property at issue at trial. 5. The Trial Court's verdict is against the weight of the evidence. k " 1'.-" ~""-'~'- ",,' ~~~~.~ " ~ '. . o . ' , . 6. The Trial Court's verdict is not supported by substantial evidence. 7. The verdict is, in form and substance, inconsistent with the law of the Commonwealth of Pennsylvania. ~ THE COURT SHOULD DIRECT THE ENTRY OF JUDGMENT IN FAVOR OF THE PLAINTIFFr LCL INCOME PROPERTIESr L.P., II, PURSUANT TO PA. R.C.P. 227.1(a) (2) The reasons advanced in support of this relief are: 8. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release having been objected to by LCL legal counsel as hearsay evidence. 9. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, and not being binding on successors in title by its very terms. 10. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Release by its very terms was limited to claims "from the beginning of the world to the date of these presents", that being May 30, 1972. ~ ",h - '~',7-" " ~, , ":,J.;;;< . . ll. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Defendant could not have relied on the Release because, as presented at trial, the Defendant did not know of its existence at the time he purchased the property at issue at trial. 12. The Trial Court's verdict is against the weight of the evidence. 13. The Trial Court's verdict is not supported by substantial evidence. 14. The verdict is, in form and substance, inconsistent with the law of the Commonwealth of Pennsylvania. .Q RESERVATION OF RIGHT TO SPECIFY ADDITIONAL ERRORS AND GROUNDS FOR RELIEF IS. LCL further assigns as error and as grounds for modifying the judgment, or in the alternative, for the granting of a new trial, each of the matters offered by the Petitioner during trial and refused by the Trial Court, in each objection made by the Petitioner during trial and overruled by the Trial Court, and hereby incorporates into this Motion by reference, such points in the trial record. 16. The moving party, LCL, reserves the right, and hereby moves the Court for leave, to supplement this Motion with additional grounds appearing on the transcript of trial. Sf c,."" ,-,," , ' :,- ~'C, ';,:, 'c _"_, ~ -" --,~ - '- ,,~,I,~,::~;~~-: ~ ' 'S.' " . . 17. Each of the foregoing points was raised by the Petitioner prior to trial, as the evidence in question arose at the trial, and/or by other appropriate method at trial. I2 TRANSCRIPTION OF RECORD 18. LCL hereby requests, pursuant to Pa. R.C.P. 227.3 and Pennsylvania Rule of Judicial Administration 5000.5(b), that a transcript of all of the testimony at trial be transcribed in order to enable the Court to dispose of this Motion. WHEREFORE, the Moving Party/Plaintiff, LCL Income Properties, L.P., II, moves the Court: I. To vacate its verdict and order a new trialj or in the alternativej 2. To alter and modify the Adjudication of February 28, 2002 in form and in substance to reflect the matters and points set forth above; and 3. To enter judgment for Plaintiff, LCL, and against the Defendant; and 5~ "" >..',I"_'.'C. c'. . '._,'C .c;_,.,~:, L',-,',J,.,-,.,",_ ~I<< < .., . . '-;'-j . . . '. 4. To grant such other and further Post-Trial Relief as may seem just and proper. Respectfully submitted, FRIEDMAN & NG, p.e. oate:'ff!O/Lt.h ~~ . Friedman, Esquire 600 N. S cond street Penth use suite P.O. Box 984 Harrisburg, PA 17108 (717) 236-8000 f/p:pleadings\bhill.mot 5~ -.< -,' ~, ''',-'-"".,. '. _.- ;. :,- ,,-~~".,:_,' , c' :,' _ _ ~ .,:,;.1 ,-' ~_ , . . . . . , . LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Richard S. Friedman, Esquire, hereby certify that on March 7, 2002, I served a copy of the within plaintiff, LCL Income Properties, L.P., II, Motion For Post-Trial Relief, by depositing same in the united States Mail, first class, postage prepaid, addressed as follows: Darrell C. Dethlefs, Esquire 3805 Market st. P. O. Box 368 Camp Hill, PA 17001 The Honorable J. Wesley Oler, Jr. Cumberland County Court House 1 Courthouse Square Carlisle, PA 17013-3387 FRIEDMAN & K P.C. Richard . Friedman, Esquire 600 N. econd Street Penthou e suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 i4- Ji",;'~ ~~.~ "",-' . . o . o o ~.:; fB;~::t :~f~ CJ:,-'-- r:: ;S 7-\, _' :z~! ..". ~:1 -< , ,< (',:J 1"....1 () '11 ;,~ J_.' :'0 I......,) h": "c'".:) -\ ; -;() 1--1". Fi f~1 ---j >' :0 -< 1:') ~"u' 'W -.J 'J ,I " c .' o .. ~ ,"""'" , ",,"..I AtL-$TATE LEGAL, A DIVISION OF ALL..sTATE- INTERNATlONAL,.INC. FORM NO.: 11715.2-8F -1l71.63-BL' 07155-GY. 07156-WH C:~f ~ '.., y ,., \,.,: '~ " ~., ," ::q > " OJ " Iii :0 ~ ~ OJ(J) :>- " d , 0 " tJ " OJ " 9 ;:, z 0 0 :<: " z " .- ;? ~ z Z tD 0 UJ " Z 0 d " ~ ><0 I z ~ m n m m " 0 '" ~ "' UJ Z ~ ~ ~ CD d e Z ~ " ~ UJr 9 z " ~ ~ > :0 n ~ 0 ro (') 0 c C 1""0 ~r~ :f:: ::r.: -0 eel )...... m ~{; ';.^:J -n Z Z " II (}1 """" f'" ~J -<' "",'.. , r-~ C1 ;-:.) ~ '''0 C.) .-~;>' ~~~: ::~:I Z ~ C) )> 0 C) 111 C Z :.., ~ -~ ,:.;, 5; -< -J -< .' o '. . o " ..i. ,:~, ,..j<~_. '"",'''L.,,,"~ '. ~ __ :\,__, "'-n '. .-' "-- ~,lOo;.":j",,~,,"'L",W-,-_,-',-,':,,,,~t'h."'L' o 0'.... ' , , .','''' "!";"'\tlli~i;.i:_, -, .. ..::-'" ~,...' 55, '"" , .. ~!.tot! >\00 ~ " ., ,-. .\ .0 LCL INCOME PROPERTIES, L.P. II t/d/b/a BUNKER ASSOCIATES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. HARVEY HOFFMAN, Defendant NO. 2000-395 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE J. Wesley Oler, Jr., J., Cumberland County Courthouse, Carlisle, Pennsylvania, on February 27, 2002, in Courtroom Number One. APPEARANCES: Richard S. Friedman, Esquire For the Plaintiff Darrell Dethlefs, Esquire For the Defendant 1'.,-,-" -' , '_~.' - ',:l,: ~ ~fi!1 ifufTIi ,. " r ~" f ". ~ _C\/~r: r-- ..' .e..- e;\ ,fj-Ub _~ ,-"" p"1 \ ,,"'.)" -."," \fj\.'" \lr\n ..., ~ l.)f:,( _;; '-"\\-; ~~. ,. C... \',~~r_ \ 1\' , ,- 02 ~'?R \ S P.I'\ \3: s'O '.' CnUl'\1'< CUM~~t~s;t\ji\~\F< . Go , ,~ " ",,,---',:," ." .0 INDEX TO WITNESSES FOR THE PLAINTIFF DIRECT CROSS REDIRECT RECROSS Sherry Hockley 9 12 REBUTTAL Sherry Hockley, recalled 37 FOR THE DEFENDANT Elston L. Wickenheiser l7 25 2 14 k . _"',,'_'_,__._ o -.----d: 57 31 , " <, .\ .0 INDEX TO EXHIBITS FOR THE PLAINTIFF FOR THF. DEFENDANT Ex. No. I - deed Ex. No. 2 - deed Ex. No. 3 - agreement and release 3 MARKED IS 19 21 ADMITTED 36 36 36 5'1 ; - '-,,":;l' ,n.,-', ',-',.; , '0.,;' - - - _',' - -, '."~-", _~" ,_, . : t, ,_',. _ '0__''''' ~"",,' - '~, ,_ ,.,,','" i"ii:d-"i " " .\ .0 1 MR. FRIEDMAN: Good morning, Your Honor. 2 THE COURT: Good morning. This is the 3 time and place for a nonjury trial in the case of LCL 4 Income Properties, L.P. II, trading and doing business as 5 Bunker Associates versus Harvey Hoffman. 6 We will let the record indicate that the 7 parties are present in court represented by their 8 respective counsel, Richard S. Friedman, Esquire, on behalf 9 of the Plaintiff, and Darrell C. Dethlefs, Esquire, on 10 behalf of the Defendant. Do counsel wish to make opening II statements? l2 MR. FRIEDMAN: If you would prefer, Your 13 Honor. Your Honor, the Plaintiff operates and owns 14 apartment units known as Bunker Hill Apartments in the 15 Borough of Wormleysburg. About 4 years ago there was an 16 overflow of the sewage pumping station, at which time when 17 opening it up to clean it out they observed that there were 18 units attached to this pumping station which did not belong 19 to the Plaintiff. They belonged to the Defendant, Harvey 20 Hoffman. 21 We went to the Borough to determine exactly 22 how many -- because of the plans, how many units were on 23 this pumping station, how many belonged to Mr. Hoffman, and 24 we put him on notice that we expected a contribution for 25 the costs of maintaining that pumping station. Mr. Hoffman 4 r1 II"" .il!i: i~ ',' " I 2 3 4 5 6 7 8 10 11 12 13 l4 15 l6 17 18 19 20 21 22 23 24 25 . " ,'-" -", ,- "" ",'-<, - ',., ,,' . ,,- -,~,.""~.- ';-i..i.~""~'\-' ,-" :'~" ,.;..IhV;;i>,,',J."-::0, '. ,~,' "-'.,,,,-:..;,;; c~ oc:t declined. We then determined our witness, Sherry Hockley, who's the Regional Manager at LCL Management, to look through the voluminous books of the company and determine that the annual cost is approximately $5,000.00 for the maintenance of this sewage pumping station. We made a demand for $75.00 per month from Mr. Hoffman, and we ended up filing this suit. Mr. 9 Hoffman purchased the property. August 15th, 1996, through February 15, 2002, our damages are $4,950.00 and continue on a theory of unjust enrichment on a monthly basis of $75.00 per month. There are two issues of law which I assume we'll resolve when they are brought up or would you rather -- THE COURT: Why don't you mention what you feel that those issues are? MR. FRIEDMAN: The first issue is the statue of limitations, Your Honor, which was raised by the Defendant. The parties have agreed by memorandum submitted to Your Honor that the statute of limitations in an unjust enrichment case is 4 years. The parties disagree as to what that means. Mr. Dethlefs in his brief pointed out that since the Plaintiff has been in possession of the property for 5 {tfJ . e'""":,, ,,',- "',"",/:,,-,-,-.c, ,. .. . . I probably l6 years, the statute of limitations has run. Our 2 position, Your Honor, is that this is a continuing cause of 3 action, which accrues every minute of every day. 4 It is an unjust enrichment. Mr. Dethlefs 5 argument would be to say that if someone were cutting down 6 trees on your hundred acre farm, after 2 years you didn't 7 catch him, he's free to do it forever. 8 And also the statute of limitations is the 9 time during which the parties should have filed suit or 10 must file suit to the time the cause of action arose. Mr. II Harvey Hoffman did not even own this property. Suit was 12 filed within 4 years of the date he purchased it. 13 The second argument will deal with an 14 agreement and release which was the subject of the order 15 Your Honor just signed. It is our position that this 16 release speaks for itself. That is merely a release 17 between the parties. l8 It intends to convey an interest demand. An 19 easement is not recorded. there was no notice to the 20 Plaintiff, and by the terms of the release, it is not 21 binding on the successors in title, and the release by its 22 own terms indicates that it was from the date of the 23 release -- actually it says from the beginning of the world 24 to the date of these presents, which was May 30th, 1972. 25 That's basically our position with regard to 6 ~\ . ^," " " 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 25 T /,_c_. __ ;,',-" . . I the legal issues. Friedman. THE COURT: Mr. Dethlefs. MR. DETHLEFS: Your Honor, our position will All right. Thank you, Mr. be in the facts that will be presented that about 1969 the property at issue was purchased by a Mr. Wickenheiser, who will testify. In 1972 a dispute arose over this very pumping station. A release was signed at that point in time between Mr. Wickenheiser, who subsequently conveyed the property to Mr. Hoffman, and Mr. Rupley who ultimately conveyed that property to the plaintiff herein at LCL. It's our position that that release was a general release, and it applies to these parties, and we'll reference the paragraph where it indicates the parties hereto remise, release, quitclaim and forever discharge the other, his heirs, executors, administrators and assigns. In 1986 LCL -- or about 1986 the evidence will be that LCL purchased their property. Shortly thereafter they contacted Mr. Wickenheiser about the pumping station at issue, and made a claim on him that they owed him -- that he owed them money for a use of the pumping station. Mr. Wickenheiser provided them with a copy of this release, and that was the end of the issue back in 7 fo~ " .. I 2 3 4 5 6 7 8 9 10 11 l2 13 14 15 16 17 18 19 20 21 22 23 "<"'-"~ '- . . the early 19BO's. Mr. Wickenheiser never paid -- never contributed any money towards LCL. He subsequently sold the property in 1996 to Mr. Hoffman, and then Mr. Hoffman was contacted, and that's why we're here today. It's our position -- it will be our position that there can't be any unjust enrichment in this case. This release that will go into evidence before Your Honor -- the Plaintiff accepted that release back in the late 1980s, didn't bill the prior owner, and we'll argue that because of that, and other facts, that there was no unjust enrichment. And also that goes to the statute of limitations, we believe, because there will be testimony that they knew about this pumping station. They made a claim on Mr. Wickenheiser back in the late 1980's on the same issue. THE COURT: All right. Is that the basic defense, that there's a release? MR. DETHLEFS: THE COURT: MR. DETHLEFS: Yes, Your Honor. And is that the only defense? We will argue statute of limitations, but the main defense is the release. THE COURT: Okay. Mr. All right. 24 Friedman. 25 MR. FRIEDMAN: We call Sherry Hockley. 8 ~3 I'V " .. I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 '",', ,'-', ","', -, ~, - '.,;. ',_ ~,_.',;.-" "':."i,',' "'-'"i.:.;''' "';'_;;,_,--:,_, ~" , '-I" , ,"- p.; ~, ,~.::.~~t . . Whereupon, SHERRY HOCKLEY having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. FRIEDMAN: communities. communities? Q What is your full name? A Q A Q A Q A Sherry Hockley. Where do you reside? At 915 Magnolia Drive in Enola. What is your occupation or profession? I'm Regional Manager for LCL Management. What is LCL Management? We manage and rent out apartment Q Is Bunker Hill one of those apartment A Q Yes. How long have you been Regional Manager at 19 LCL Management? 20 A Approximately 5 years. 21 Q And what did you do prior to that time? 22 A I was the Property Manager for Bunker Hill 23 Apartments. 24 25 Q A From when to when? I started in February of 1988. 9 ~1 i----' " I 2 3 4 5 6 7 8 9 10 11 12 13 14 , . l_,_' ';,,' .-,L'-':",:-:~ ,,>',,-__ ":~-~<.'i?">,':; ;~f- .- ;}g;-,_",~ ,-' ,Of' _;..,;, - o . Q Sherry, you've heard the opening statements. What, if anything, occurred about 4 years ago that caused this dispute between Bunker and Mr. Hoffman? A We had a serious sewer backup at our pump house that it was above the ground that it shot sewage and other feminine hygiene products allover the place, and then we called a company in to look at it, and the gentleman brought it to our attention that there were some meters for other things that didn't -- that weren't ours. We couldn't figure out who they were, and why they were in our pumping station. Q Did you see that yourself? A Q Yes, I did. And as a result of that, were you able to 15 determine to whom those meters belonged? 16 A Yes. We went to -- along with yourself, we l7 called you, and then we went to the Borough of Wormleysburg 18 and went through their records and their files to try to 19 figure out who they belonged to. 20 Q Were you able to determine how many units in 21 total were connected to the pumping station? 22 A Total, there's 64. 23 24 25 Q A Q How many? Sixty-four of ours. And were you about to determine how many of 10 ~) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Jersey, our main office, and I went there and we dug 17 through some boxes, which are not on computers, some of the , . - ;-.'"'; -~ - ,->".,,'-,., ".",' ,,(',' . ,'- .~ . "I - -, . ,'" :~ _' -L-"J "- . . those were from the neighbor, Mr. Hoffman? A Fourteen. Q As a result of that, what did you do? A I contacted you to notify him of -- that we were in dispute, that we felt that he should be responsible for some of the backups, the costs to maintain the maintenance of it, the electric of it, and basically that was it. Q Were you able to determine the cost of maintaining the sewage pumping station? A Yes. Q And did you do that yourself? A Yes. Q And how did you do that? A The records are kept in Parsippany, New 18 older ones, for a couple days until we figured out exactly 19 what we've been spending -- or approximately almost exactly 20 what we've been spending per year to maintain the pump 21 station. 22 23 Q Now, from what period to what period were In other words, how many days, months, years the records? 24 did you go through to come up with a figure? 25 A We went back to the original purchase date 11 ~~ c_,,_ " . . .-',-"I-'-"^,,'",,," " . -~',h'r;<i_-" "' .",,-,';,_ _~ ,-.', ':, J~~ -', '-~ - -~ ,.,;;-:,-,: - '" --~ . . 1 of Elliot Leibowitz purchasing the property. 2 Q So you went through all of the records to 3 determine the average cost per year? 4 5 6 7 A Q A Q Yes. What was that average cost per year? Approximately $5,000.00. And as a result of that, did you determine 8 what the monthly charge on a prorated basis would be for 9 Mr. Hoffman? 10 11 A Q Yes. It was approximately $75.00 a month. Now, have you computed what you estimate the 12 damages would be for from the date Mr. Hoffman bought 13 the property in 1998 I'm sorry, in February of 1996 14 until the present time? 15 16 17 A Yes. It was about $4,900.00. MR. FRIEDMAN: Okay. That's all I have. CROSS EXAMINATION 18 BY MR. DETHLEFS: 19 20 in 1988? 21 22 Q You began employment with Bunker Hill back A Q Correct. And from 1988 until 1996, did you ever have 23 any dealings with Mr. Wickenheiser? 24 25 A Q Never. Did you ever have any conversations with 12 &7 j<.~ ~-- -. ".' " 'r'o _ _ h-_',___~ :.', ~-,,;- - -'OiV;'4/ 1.--: - '_' ,'C_, _F,' _.~ " -_c'"..,~.--. ,~___ . . 1 him? 2 A Never. 3 Q And it's your testimony that you first found 4 the othe~ the other townhouses going into the pumping 5 station in 19 when? 1998? 1999? 6 A 1998. 7 8 Q That's the first time you had knowledge of it? 9 A Yes, sir. 10 Q You were the manager in 1998? I started out as leasing first, and then I 11 A 12 was promoted to Property Manager. Q And when were you promoted? A Within that year. Q 1998? A Property Manager, I started in 1988, and 13 14 15 16 17 then by 1989 I was the Manager. 18 Q Any other individuals at Bunker Hill -- were 19 there any other individuals at Bunker Hill who were 20 responsible for looking at the pumping station during that 21 period of time? 22 A Myself and the Maintenance Supervisor at 23 that time. 24 25 Q And who was that? A Nevin Keckler. 13 &1 ~-~,; , . '. 1 2 3 4 questions. 5 <"" _", J;;,,:,<,-:,:) '"-'~';"; ~-"'-' ',(,'-:-/<c', ",.' -,',-",:0:;,: )-,._--.,:,.,"""t: _', t:~ _ q~ . . Q And is he still employed by Bunker Hill? A No, he's not. MR. DETHLEFS: I don't have any further THE COURT: Mr. Friedman. 6 REDIRECT EXAMINATION 7 BY MR. FRIEDMAN: 8 Q Sherry, during the period when you were 9 just Manager of Bunker Hill before you were Regional 10 Manager, were you primarily responsible for all duties 11 there? 12 13 A Yes. Q Did you have any assistance or was it 14 basically a one person job? 15 16 A It was basically a one person job. Q Mr. Dethlefs asked you, did you ever receive 17 any phone call from Mr. Wickenheiser? 18 19 20 21 BY THE COURT: 22 23 24 A Never. MR. FRIEDMAN: That's all I have. THE COURT: Mr. Dethlefs. Q Your last name is Hockley? A Yes. Q When did the Plaintiff, LCL Income 25 Properties L.P. II, buy the property? 14 ~1 .. " 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 - ~, ". . 'c,,>~;-.-,:_,>,--k~__ ,'..,. :,,-_ \_-,_.,<-'< ,--;~_,_,'~_ "c' -t,;";>:,, . "'~-:<-, . . A It was sometime in 1986. Q And for the record, what's the address of the property? A Of Bunker, 402 Yverdon Drive, and that's in Camp Hill. Q And do you know when the Plaintiff -- or the Defendant bought his property? A I think -- I really -- without 100king, I wouldn't know. MR. DETHLEFS: Your Honor, I have a copy of the deed. I'm going to put it into evidence. The deed was August 15th of 1996. THE COURT: Is that stipulated to? step down. MR. FRIEDMAN: Yes. THE COURT: Okay. All right. Thank you. MR. FRIEDMAN: Your Honor, I have no further You may 18 witnesses. 19 THE COURT: Okay. Mr. Dethlefs. 20 MR. DETHLEFS: I'll call Mr. Wickenheiser. 21 22 23 MR. FRIEDMAN: I would like an offer, Your Honor. MR. DETHLEFS: Well, Mr. Wickenheiser is 24 here to testify that he purchased the property in 1969. 25 The same dispute arose over the pumping station.' "The 15 76 , .' 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 ,,- };,.,',,,,"" "-".' _,-,n--__'-,,_ ;,-",' T.:i.';," ~- "", .,-, _,~ -:',.,-'[;',---,~X' -,)'-'-;;'-' ,,~ ,,';'f~";~ . . release that we're going to argue regarding was signed in 1972. In 1986 LCL bought the property. He was contacted after 1986 to pay for the pumping station usage. He provided them with the agreement and release. He never made any payments subsequent to that. It was never an issue again subsequent to that, and he sold the property in 1996 to Mr. Hoffman. MR. FRIEDMAN: If the Court please, I'm not going to object, but I must indicate my displeasure. That was not the scope of the testimony we were told would be in the amended answer. The amended answer, which we agreed to permit, dealt only with the fact that there was an agreement and release. We haven't seen that answer, and I am objecting to anything further than what was set forth to the Court in previous -- in our pretrial, that the purpose was to amend to include a defense of agreement and release, which came to the Defendant's attention at the arbitration. There was never a discussion about this. We could have deposed, and I think that's past the scope of what was agreed to for the amendment, and, therefore, I object to the amendment of the answer or new matter, to anything further than the pleading and agreement and release. 16 II . . 1 THE COURT: Mr. Dethlefs. 2 MR. DETHLEFS: Our defense is still 3 agreement and release, Your Honor. I think that that 4 5 background information though is important. Even if there wasn't an agreement release I think it's relevant. If 6 they're arguing unjust enrichment, and if this issue was an 7 issue for 14 years or 16 years with the prior owner, I 8 think that goes to whether unjust enrichment applies. 9 So our defense is agreement and release, and 10 that's what we're arguing. I believe that background 11 information is important, that he was contacted, this was 12 discussed, and he provided him with this agreement and 13 release, and that's the ultimate -- I mean that's what I'm 14 ultimately getting to, is he gave him this agreement and 15 release, and at that time it was the end of the issue. 16 THE COURT: The testimony will be permitted 17 for purposes of showing the background. 18 MR. DETHLEFS: I'll call Mr. Wickenheiser 19 to the stand. 20 Whereupon, 21 ELSTON L. WICKENHEISER 22 having been duly sworn, testified as follows: 23 DIRECT EXAMINATION 24 25 BY MR. DETHLEFS: Q Please state your name. Spell your last 17 7~ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 exhibit? . . . 22 ,~ w'o, _', - -', .',<. ./" .-,,;;., ,~_., .': -,oJ, ;,,_:. ~,,\-',,- i, ,~,,{ ,_,"-~c" i ".-~-.+ - '.~ >;:..1',' C, .".- ': ,;-,'_ : _. ,; i. 0-" - -, -.(ij;;z " =f . . 1 name. 2 A I'm Elston Wickenheiser. My last name is 3 spelled W-i-c-k-e-n-h-e-i-s-e-r, and that's Wickenheiser. 4 Q Mr. Wickenheiser, in 1969 you purchased 5 property in Wormleysburg, Pennsylvania; is that correct? '69? Could be around that time. (Whereupon, Defendant's Exhibit NO.1 was marked for identification.) A BY MR. DETHLEFS: Q Mr. Wickenheiser, I'm going to show you a ce~tified copy of a deed that was recorded here in Cumberland County. The deed appears to be dated March the 7th, 1969. It appears to be a property that you purchased from a Mr. and Mrs. Rupley. A Urn-hum. Q Okay. So is it fair to say that you purchased property in 1969? A Q Yes. And THE COURT: Has this been marked as an MR. DETHLEFS: It has, Your Honor, 23 Defendant's Exhibit Number 1. 24 THE COURT: And ,that's -- do you want to 25 have the witness identify that? 18 77; . . - ," ~-- ""~" ,,-- ---. " ,-,- .. '"-, ,,', l"-io-'." -'/ .",;;",-, . .-,- , ",,:.,- .. .~- --,<d .. 2 ,'~ "-'d:""- <,,","", ",-,:c;~ .. . . 1 MR. DETHLEFS: Yes. 2 BY MR. DETHLEFS: 3 Q Yes. Is that the deed that you -- for the 4 property that you purchased in Wormleysburg? 5 A That was the deed that was transferred to me 6 by Mr. Rupley. 7 Q And that's who you purchased the property 8 from? 9 A Mr. Rupley. 10 Q Okay. 11 (Whereupon, Defendant's Exhibit NO.2 was 12 13 14 15 16 17 18 19 20 marked for identification.) BY MR. DETHLEFS: Q In 1996 -- THE COURT: Just one second. For the record, what is the address of that property, the property that you bought? THE WITNESS: 1200 Yverdon Drive was the main -- my residence. THE COURT: The building you brought is an 21 address of 1200 Yverdon Drive? 22 23 24 THE WITNESS: Yes. THE COURT: Camp Hill? THE WITNESS: Yes. Camp Hill, 25 Pennsylvania. 19 7Lf ., .-._,.~~ ';.:';" -""i:" ,,'. ,+' ~-.-" ,,,". 'F.' I -': :' _~. .-. . . . 1 THE COURT: Cumberland County, 2 Pennsylvania? 3 THE WITNESS: Urn-hum. 4 THE COURT: Okay. 5 BY MR. DETHLEFS: 6 7 8 9 Q In 1996 did you sell that property to Mr. Hoffman? A Around that time. Q After you purchased the property in 1969, 10 did a dispute arise between you and the prior owner, Mr. 11 Rupley, over a pumping station? 12 A It wasn't a dispute. It was an agreement 13 whereby I wouldn't be involved in any pumping station, 14 which was supposed to be transferred to the authority 15 sewer authority, and which I don't know anything more about 16 17 18 rela.ted it. Q Did you and Mr. Rupley sign an agreement 19 20 end of that. 21 22 23 MR. FRIEDMAN: Excuse me. I didn't hear the THE WITNESS: MR. FRIEDMAN: Pardon? I'm sorry. I didn't hear the end of your answer. I'm sorry. 24 THE COURT: Well, I think you said the 25 pumping station was supposed to be transferred to the 20 7fJ . 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 .-'",',;,'~ -.-, '-".A" . . 1 Borough, and then you said you don't know anything about 2 that. THE WITNESS: Yeah, the sewer authority of Wormleysburg was under some type of an arrangement with Mr. Rupley. I don't know what it was. But I don't know how far it proceeded. (Whereupon, Defendant's Exhibit No.3 was marked for identification.) BY MR. DETHLEFS: Q I'm going to show you what's been marked as Defense Exhibit Number 3, and I'll ask you first of all, is that your signature on the second page? A That is mine. Q There appears to be a signature from an L. Patricia Wickenheiser? A Q My wife. Is that your wife? And do you recognize her signature? A Yes. 20 Q And does that appear to be her signature? 21 A That is right. 22 Q Okay. And can you identify for the Court 23 what I've handed you, which has been marked as Defense 24 Exhibit Number 3? 25 A Yes, that was the agreement. 21 l/P ~, . > -- , <-. , .. . - ~ ~ - -- ,J-,; -;" '~'d'"-' ;-,,,- ,~ _. _!:c-'-- ---~'~ '" ..". "j. }_;d,r, . . 1 Q And is this the agreement related to the 2 pumping station? 3 A Yes, primarily. 4 Q Did you make any payments to Mr. Rupley for 5 usage of the pumping station? 6 7 8 9 10 A None. Q You sold the property in 1996 to Mr. is that correct? A Q Yes. Did you make any payments to LCL Properties Hoffman; 11 for use of the pumping station? 12 13 A Q None. Did you make any payments to Bunker Hill for 14 use of the pumping station? 15 16 17 18 19 20 21 22 23 24 25 A None. Q Did you make any payments to anyone for use of the pumping station? A I've paid for the use of the sewage. Q And who did you make that payment to? A The Borough of Wormleysburg. Q The Borough? A The Borough of Wormlesyburg. Q Other than the Borough, did you make any payments to any other individuals? A None. 22 71 h-<, . ," . . 1 Q Okay. At some time afte~ 1986, were you 2 contacted by anyone regarding the pumping station? 3 A Once by a lawyer representing LCL. 4 Q And what was the contact ~egarding? 5 MR. FRIEDMAN: I object, Your Honor. This 6 is hearsay. 7 THE COURT: Mr. Dethlefs. 8 MR. DETHLEFS: Well, I don't want him to 9 state what was said to him, but just the context of what 10 was the issue that the lawyer contacted him regarding. 11 THE COURT: You may do that. It doesn't 12 seem to be being introduced for the truth of any 13 statements. 14 MR. FRIEDMAN: Your Honor, it's being 15 introduced for the truth that he was contacted, and what 16 was said. 17 THE COURT: That's true, but that's not 18 really the truth of the statements themselves. 19 BY MR. DETHLEFS: 24 Q Were you contacted by someone? A Yes. Q And you said it was an attorney? A (No verbal response. ) THE COURT: I didn't hear an answer to that 20 21 22 23 25 question. The question was you said it was an attorney. 23 -I \' t \J . . 1 There's no answer on the record to that question. 2 BY MR. DETHLEFS: 3 Q Okay. Who contacted you, Mr. Wickenheiser? 4 A An attorney for LCL. 5 Q And why did he contact you? 6 A Asking me about the if I had an agreement 7 with Rupley or what was I paying. 8 9 10 11 12 13 14 that contact? Q A Q Paying for what? Sewer treatment. Okay. And what did you do in response to A Q I transferred a copy of that -- When you say that -- THE COURT: Wait. You have to let him 15 finish his answers or the record will be incomplete. You 16 transferred something. What was that? 17 THE WITNESS: A copy of the agreement 18 between Rupley and myself in regards to the use of the 19 pumping station and any other matters. 20 BY MR. DETHLEFS: 21 Q When you refer to that agreement, are you 22 referring to what's been marked as Defense Exhibit Number 23 3? 24 25 A Yes. THE COURT: Number what? 24 1~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ,,' -'''' - -'" ,",' "'~ ,;..,:,,')) , ;. ,~^. ",,-, '''."'"__C,~". '~-._.:;_, '-',,,:-.0-;',,,"- ",~,,_ .__.' '~',,', I'_)c:".t:~->_ . . MR. DETHLEFS: Number 3, Your Honor. BY MR. DETHLEFS: Q What happened after you provided this agreement to the attorney for LCL? A I never heard from him. Q Did you make any payments to LCL? A None. Q Did you make any payments to Bunker Hil1? A None. Q Did you make any payments to anyone other than the Borough of Wormleysburg? A None. MR. DETHLEFS questions for this witness. I don't have any further THE COURT: Mr. Friedman. 16 CROSS EXAMINATION 17 BY MR. FRIEDMAN: 18 19 20 21 22 23 24 25 Q A Q A Q A Q A Mr. Wickenheiser, do you know Mr. Hoffman? I'm sorry? Do you know Mr. Hoffman? Do I know him? Yeah. Yes. How long have you known him? I didn't know him prior to the purchase of 25 ~o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 d'l" i. ,',,--_,,' "-"';"':; :,-i,-" ", '",,'" , ,,-, ,,'x:;'~__ :":'-;L ,/~_J' _"0-_" --'""--~-';'f my property. Q A Q A Q A Q A Q A Q A Q A Q . . But you've known him since? Yes. Did you have other dealings with him? No. Are you at all friendly with him? I'm sorry? Are you friendly with him? Well, yes. Socially friendly? No. How often do you see him? Only when he calls me. And I assume he called you about this case? Yes. That's the reason why I'm here. Now, this agreement and release, you 17 indicated you didn't get anything for this? Mr. Rupley 18 didn't give you anything for -- he allowed you to use the 19 pumping station, and you didn't give him anything for it? 20 MR. DETHLEFS: Your Honor, I'm going to 21 object. I think that the whereas clauses in the agreement 22 speak for themselves as to what was the consideration for 23 the contract. 24 MR. FRIEDMAN: I'm attacking the witness's 25 credibility, Your Honor. I thought he said he didn't get 26 ~t 1 2 3 4 5 6 "'- ---.J; ,', .,.,",~ '" ,',' ^",i"- ;'-.'- " <';;;-'.." "'-'c c"--"'"~ ,;. z j,'-;,."-,, '<,. _ ,i .~.~'J, 'c' ',d/ '; __ _*--' ",~ ;--.,. "" d ~'~': . . anything for it. I thought he said there was no dispute between the parties. That's not what the agreement says. THE COURT: BY MR. FRIEDMAN: You may ask the question. Q Did you receive anything for this? ,A No. 7 Q So you didn't get -- so is the agreement 8 wrong, that you received acreage for this? Did you receive acreage for this? A No. Q Okay. And your understanding was that this 9 10 11 12 was going to go to the sewer authority, that this pumping 13 station was going to the sewer authority? 14 15 16 Rupley? 17 18 19 20 21 22 A Q Eventually they agreed to it. And there was no dispute between you and Mr. A Q A Q A Q No. Who prepared this agreement? What? Who prepared the agreement? Mr. Rupley's lawyer. When did you receive communication from the 23 attorney for LCL Management? 24 25 A Q When did I -- I thought you said you received a call from 27 ~l ,~-;; ,". . , " ""e'-'-' _~ " ',"i~ ,.,:,/,_'-,/,;.,j'~-_ '_0:'_ _~_ -_ri'~_" ,- ~---, I ,;":..-,~,,,-;.-,-,-,;' -'~-f: -~"--:"Ci_-2~"_7,,;j,1 . . 1 a lawyer from LCL. Do you remember when that was? 2 A No, I have no idea when that was. It was 3 shortly after they probably purchased the property. 4 5 Q Do you have independent knowledge that it was an attorney for quote LCL? Do you remember him saying 6 that? 7 8 9 A Oh, yes. Q Do you remember where he was from? A Myers, Myers, and Flower attorneys. Yes. 10 I don't know which one. Duffie or one of them. 11 12 Borough? 13 14 15 don't they? 16 Q Are you not confused that they represent the A Pardon? Q They represent the Borough of Wormleysburg, A They did at one time. I don't know if they 17 do -- if they still do. 18 Q Could you be confused that that call was 19 from the attorneys for the Borough? 20 21 A No. Q Mr. Wickenheiser, what were you told about 22 this release, this agreement? 23 24 A What was I told about it? Q Yeah. Were you told that you could use the 25 pumping station for nothing as long as you owned the 28 ~? .' ,I 8 9 10 11 12 13 14 15 16 17 _,-,_--"_,;"~; 0" . ',--~. -.", ,j'- " '-, "'''''__h . -';._;;,I~'1-"':_ .,.i'^_~,:..'.;~_,,_-, -" '-"'<":1 . . 1 apartments, the townhouses? 2 A The agreement was between Rupley and I, and 3 I -- other than that, why that was it. 4 Q What was your interpretation of the 5 agreement? What did you think it meant? 6 A That I wasn't responsible for any 7 maintenance or anything else to the pumping station. Q A Q That you weren't responsible? That is right. Did you have an attorney at that time? A Pardon? Q Did you have an attorney when you did this? A I don't think so at the time Rupley and I entered into this agreement. Q So this was just between you and Mr. Rupley? A That is right. Q Was it your understanding that any prior 18 discussion between you and Mr. Rupley would be totally 19 resolved by this agreement, that whether there was a 20 dispute or whether there was a discussion, this was the 21 final agreement between you and Mr. Rupley? Was that your 22 understanding? This is your final agreement, and for 23 years until you sold to Mr. Hoffman, you continued to use 24 the pumping station without cost? 25 A That is right. 29 ~Lf 1 '" " ~,--' - ;'_~ .x_, . '-~-, "-'," "2'~" o..C',. ',", -ji;J,-;'<-~,,-;~/-;_, ',.'__' _''',, ;,\;;:J . . 1 Q When you negotiated with Mr. Hoffman, did 2 you tell him of this arrangement? 3 A No. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Q A Q A Q A Q A Have you dealt in real estate before? Pardon? Have you dealt in real estate before? Oh, yes. Do you know what an easement is? An easement? Yes. Yes. Q And in your dealings in real estate, have you given easements to utilities so they could put the electric and the sewer in? Have you ever had to do that? A No. Q Have you ever received easements from A No. Q Mr. Wickenheiser, do you know who it is that witnessed those signatures? Does that signature ring a bell to you? A I have no idea unless it was somebody in the anybody? 23 lawyer's office that witnessed it. 24 THE COURT: What exhibit are you showing 25 him? 30 y) . --~ - ,~,,'-~<- ,-~, -_-_,''6_'. .-~. ,'-, , . ::;1:,,;, "J" ,-.<, -:~ "'''I ,~- t . . 5 6 7 8 9 10 11 12 13 BY THE COURT: 14 15 16 17 18 19 20 21 22 23 24 25 1 MR. FRIEDMAN: That was Exhibit 3, Your 2 Honor, the release. 3 THE COURT: All right. 4 BY MR. FRIEDMAN: Q So you don't know whether the phone call you got from the attorney was before or after 1988, do you? A No, I really don't know when they purchased it, the property, LCL. MR. FRIEDMAN: Okay. That's all I have, Your Honor. THE COURT: Mr. Dethlefs. MR. DETHLEFS: No further questions. Q I'm afraid I've gotten confused as to the whole setup of the property. We're dealing with property in Wormleysburg Borough, Cumberland County, Pennsylvania? A Yes, sir. Q And I gather that there are townhouses that are rented out to tenants on the property? A On the property that I previously owned? Q Well, let's start with the whole the whole property, both properties. Is that full of townhouses? A Q Yes. And was that at one time -- 31 ~~ ", . . 1 2 3 4 5 the development? 6 7 Manor. 8 ~ "_ w,~'"_ - "".--'~--, -", -; "1-.,';; ,'_~" - . '-,;",- '.'~ -. - ,,' -,' ""'--'j . . A Garden apartments. Q I'm sorry? A Garden apartments. Q Garden apartments. And is there a name for A Bunker Hill Apartments and also Yverdon Q And at one time were Bunker HilI Apartments 9 and Yverdon Manor all part of the same development? 10 11 12 ownership? 13 A Yes. Q Okay. And they run under a common A Your Honor, I used to represent Mr. Rupley, 14 and I built the Bunker Hill Apartments -- part of them 15 except for a couple buildings. I had previous contracts 16 with him, and on my second contract I had three 17 different contracts. On my second contract he wanted to 18 give me ground in part payment of my contract. That's how 19 I acquired that property. 20 21 22 23 Q Uh-huh. A Pardon? Q Go ahead. A After my third contract, then I proceeded to 24 build Yverdon Manor. 25 Q So when you bought the land, it didn't have 32 ~l -" ~ . ~ 1 buildings on it? 2 3 4 of the land? 5 6 7 his land? 8 9 built. 10 -\'-<-'-" -/-'cl . . A No, there was no purchase price involved. Q Okay. And Mr. Rupley originally owned all A Fifty-two acres. Q Okay. Fifty-two acres were your land and A And also adjacent townhouses that were Q Okay. So you bought -- or you got title to 11 your tract in what year? 12 13 A Probably '69; '68, '69, something like that. Q All right. And then you put some garden 14 apartments on it? 15 16 A Townhouses, yes. Q Townhouses. And then when did this pumping 17 station get built? 18 A The pumping station was built a long time 19 before my property was built. That was to take care of 24 20 units at one time. Then they built one building of 24 and 21 another building of 12, and that made 60 units that Bunker 22 Hill rented to. 23 Q And when did you start using the pumping 24 station? Was that as soon as you built your -- 25 A About '72. 33 ~~ . l 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 A Q A Q A As soon as you built your townhouses? '72. And the pumping station was on whose land? Mr. Rupley's. The land that he kept? Yeah. Q And you were using the pumping station simply because your sewer lines went into their sewer lines? station? words? A Q I put in the entire sewer line. As a contractor. So you built the pumping A Q And I built the pumping station. But you were paid by Mr. Rupley to do that? A Oh, yes. I represented him. Q Well, you were his contracto~, in other A I was a supervision -- const~uction supervision management service. THE COURT: Okay. any further questions? MR. FRIEDMAN: No, Your Hono~. Thank you. Does either counsel have MR. DETHLEFS: No, Your Honor. THE COURT: Okay. You may step down. May Mr. Wickenheiser be excused or do you want 34 )~ ",<" " ". ,"",;'" ."0_ " '" ,..J. ~,,"_;__; '_ :-_.L-;---:"_,,,~, - - , ." "'d ~, 'J . \ . . 1 him to stay? 2 MR. DETHLEFS: He can be excused, but I 3 think his ride is here. 4 THE COURT: Okay. Mr. Dethlefs. 5 MR. DETHLEFS: Your Honor, I don't have any 6 other witnesses. I would offer Defense Exhibits 1, 2, and 7 3 prior to resting. 8 THE COURT: The only exhibits I wrote down 9 were 1 and 3. I'm not sure what number 2 is. 10 MR. DETHLEFS: One was the deed from 1969 to 11 Mr. Wickenheiser. Two was the deed from Mr. Wickenheiser 12 to Mr. Hoffman from 1996. 13 THE COURT: Mr. Friedman, are you satisfied 14 that Defendant's Exhibit 2 was sufficiently identified? 15 MR. FRIEDMAN: I'm satisfied with 16 everything but 3, Your Honor. I would object to Exhibit Number 3 on a number of grounds, Your Honor. 17 18 THE COURT: And what would those be? 19 MR. FRIEDMAN: If the Court please, the 20 agreement and release is what it purports it be. It's a 21 release between parties who were in a dispute according to 22 the terms -- certain terms of their agreement. 23 It, however, does not purport to convey an 24 interest in real estate, like an easement, for if it did it 25 would have to be recorded. The language of the release is 35 {to .".,- '_0:'_', '-;',-' '.'--,. ,- ,,-~- .;.,. ',,- -,,,;1-:'''-/__;' ,~' -;0, "i_~ . ~ . ."" , 1 very clear. It's between the parties, and as Mr. Dethlefs 2 will point out, it does say heirs, executors, 3 administrators, and assigns. It does not say successors 4 in title. 5 There's also no testimony -- in fact there's 6 testimony to the contrary, that this agreement was ever 7 signed by Mr. Hoffman because Mr. Hoffman was never told by 8 Mr. Wickenheiser that this agreement even existed. He 9 didn't know about it. So there was no assignment. It 10 doesn't flow to the benefit of Mr. Hoffman. 11 The date on the release is interesting too, 12 Your Honor. It says in witness thereof the parties hereto 13 execute these presents this 30th day of May 1972, but above 14 that the release covers from the beginning of the world to 15 the date of these presents. 16 So what it was was an agreement between 17 Rupley and Wickenheiser that has nothing to do with the 18 title of the property or granting an easement or convey any 19 rights to Mr. Hoffman. So we would object to the admission 20 of this document. 21 THE COURT: Defendant's Exhibits 1, 2, and 3 22 are admitted, with Defendant's Exhibit 3 being admitted 23 over the objection of the Plaintiff. 24 (Whereupon, Defendant's Exhibits 1 - 3 were 25 admitted.) 36 1t >> . . 1 . . 1 THE COURT: Is there some stipulation as to 2 what sort of entity LCL Income Properties is? I see it's 3 called L.P. 4 MR. FRIEDMAN: L.P. is limited partnership, 5 Your Honor. 6 THE COURT: I know that's what it means, 7 but is that, in fact, stipulated to by the parties? 8 MR. FRIEDMAN: I believe that's in the 9 pleadings. 10 MR. DETHLEFS: I think we can stipulate to 11 that, Your Honor. 12 THE COURT: Okay. The Plaintiff is a 13 limited partnership. Yes? I'm just trying to make a 14 record. 15 MR. FRIEDMAN: Yes. I'm sorry, Your 16 Honor. 17 THE COURT: All right. Any further 18 evidence, Mr. Dethlefs? 19 MR. DETHLEFS: No, Your Honor. 20 THE COURT: Mr. Friedman, any rebuttal 21 testimony? 22 MR. FRIEDMAN: Sherry Hockley, Your Honor. 23 (Whereupon, Sherry Hockley was recalled.) 24 DIRECT EXAMINATION 25 BY MR. FRIEDMAN: 37 11 . .--~ ' , ;'.- '. """''-'<...- - - ,'.-i_:;'_~"~ ,~- _ ".:-,,., "",.C., c ""'." ~',-I";;'"kI;""hc: ,,' -"--'f I . '\ . . 1 Q Sherry, you're still under oath. You heard 2 Mr. Wickenheiser's testimony? 3 A Yes. 4 Q Did you ever receive a phone call from Mr. 5 Wickenheiser? 6 A No. 7 Q All right. During the period of time that 8 you were working for LCL Management, which is 1988 until 9 the present time, did that firm ever use -- did that 10 limited partnership ever utilize the services of Duffie, 11 Steward, Johnson -- I'm not sure of their exact name? 12 A No, never. 13 Q Who did they use? 14 A Jean Lapinski and yourself, Dick Friedman. 15 Q And you've seen the records, and you know 16 who represented -- 17 A Yes. 18 MR. FRIEDMAN: That's all I have, Your 19 Honor. 20 THE COURT: Okay. Mr. Dethlefs. 21 MR. DETHLEFS: No questions. 22 THE COURT: All right. You may step down. 23 Thank you. 24 MR. FRIEDMAN: Your Honor, I'm in an 25 ethical bind because there's surprise evidence that came 38 1~ . , >-< '~ ., "_'"' ';-"c," " "_', J. """,'--' . ~ ., -- ~ 'Ii, . . 1 up, and I could offer testimony concerning my role as 2 attorney for LCL Management. I don't know whether the 3 Court considers that important factually as an important 4 issue in this case as to whether a phone call was made or 5 contact was made or whether -- it's up to Darrell whether I 6 testify or we ask for a continuance so I can bring somebody 7 8 else in to testify. THE COURT: Mr. Dethlefs. 9 MR. DETHLEFS: Well, I'm going to presume 10 that you're going to state that you never contacted Mr. 11 Wickenheiser. 12 13 14 15 16 17 18 19 20 21 22 23 MR. FRIEDMAN: MR. DETHLEFS: Correct. I would stipulate that that would be Mr. Friedman's testimony were he to testify, that he didn't contact Mr. Wickenheiser. MR. FRIEDMAN: And that I have represented LCL Management and Bunker Hill for at least 13 or 14 years. MR. DETHLEFS: I will stipulate that that would be his testimony. THE COURT: All right. MR. FRIEDMAN: Then we have nothing further, Your Honor. THE COURT: All right. Mr. Dethlefs, do 24 you have any surrebuttal testimony? 25 MR. DETHLEFS: No additional testimony, Your 39 1f ,'. , . ~ 10 , ~ " ,_ ". .c' ,_ -- ';-' ., _~'e--.__"_ -, - - '"' ,. 1.-'. ~, O'-~!';;:-~ " '~ . ..... .. 1 Honor. THE COURT: I think the caption used the term Bunker Associates. Is it actually Bunker Hill Associates? MR. FRIEDMAN: No. THE COURT: Does anybody know? MR. FRIEDMAN: LCL Income Properties is a 2 3 4 5 6 7 8 limited partnership. The principles are engaged in other 9 real estate ventures that use the first name LCL Income Properties. Bunker Associates is the fictitious name, but 11 the name of the apartment's called Bunker Hill Apartments. 12 13 THE COURT: All right. MR. FRIEDMAN: So Bunker Associates is 14 actually the operator of Bunker Hill Apartments. 15 THE COURT: All right. Mr. Dethlefs, are 16 you able to stipulate to that? 17 18 MR. DETHLEFS: I am, Your Honor. THE COURT: Okay. Do counsel wish to make 19 closing arguments? 20 MR. FRIEDMAN: I think the Court's aware of 21 our position. 22 23 THE COURT: All right. MR. DETHLEFS: Just briefly, Your Honor. 24 It's our position that Defense Exhibit Number 3's a general 25 release, and it applies to parties who take possession of 40 ~t) . ..... ~" . ',C-, ~ c -, -~, _,;,~,'",~,,_' :'_>c_., " <-_,C",' . ." I". ..~ - -- "'--i: . . 1 these properties subsequent to -- after the original 2 parties. 3 I think a fair reading of this is that it is 4 a general release. It applies to anybody who succeeds Mr. 5 Wickenheiser's interest or Rupley's interest, and I think 6 Mr. Wickenheiser's testimony was credible regarding the 7 fact that he was contacted by someone. I'm not saying it 8 was Mr. Friedman, but he was contacted by somebody 9 subsequent to the LCL purchase, and that he provided them 10 with that release, and at that time the release was 11 accepted. 12 And so it's our position that that release 13 would bar any recovery in this case. It states 14 specifically in the release, and let me find the exact 15 paragraph. It's the 4th whereas paragraph. It indicates 16 that the parties hereto have agreed that said sewage 17 emanating from said dwelling units be piped to said pumping 18 station and pumped through said pumping station without 19 20 21 22 23 24 25 cost. That's what the general release says, and that was their agreement. I think it's binding on the parties. THE COURT: And do you have a case that you feel is your best case? Do you have any precedent you feel is your best precedent? MR. DETHLEFS: I do not, Your Honor. THE COURT: Okay. Mr. Friedman, do you 41 0c, ".' ," A'.,,'.X'''.. . " .... 4. 't '--' . . 1 have any case that you think is on point? 2 MR. FRIEDMAN: I think our argument is 3 basically the interpretation of the agreement and release, 4 and whether it's binding on successors of title. 5 THE COURT: All right. We'll enter this 6 order: 7 AND NOW, this 27th day of February, 2002, 8 upon consideration of the complaint filed in the 9 above-captioned matter, and following a nonjury trial, the 10 record is declared closed, and the matter is taken under 11 advisement. 12 (End of order.) 13 THE COURT: Mr. Friedman, I guess your 14 theory is entirely the unjust enrichment theory? 15 MR. FRIEDMAN: That is correct, Your Honor. 16 THE COURT: All right. Thank you. Court 17 is adjourned. 18 (Whereupon, the proceedings concluded at 19 10:28 a.m.) 20 21 22 23 24 25 42 Cfl ij' . ,< .. .. d~ , ,,- ,_t< '\ ~> -'.~V~,'""" ""0--'"",- ,,;c -"""-"'.,-1,'-,-.,,,,,- _ _.'_ _~ . . 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. I!!:<!~ A ~ Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. i / I",' L \it z; (> )'),,] (Joe" Date I ['-/ / 1/ / C/c:.---:::. ~ . Wesley O!~ ,Jr. J. inth Judicial District 43 ~~ ~ " ',..r 'f c"'- .. ", m.. '.. " " ..."".,," ' o I' ~ -f'-p ,- ~ ~ :S-' -.J ""t>l"-" 3::4 . ~ o ~ )... 4" ~ """ 'c- ,,,,~,_ -,_ >0" ~_, _ ',"."""" ~~_',~,_'O' -^,~_~-!'>.,-".- - '.~'_'"I ["j. " .. r _ I .;-" C,_,,. n ~ " , , ~j -; ''-.J ..J .~." -< -r" ,.- _,,0__,_ r " ."~'~ < - "",,' -,--,:' r-,l'. I". ilI)_"~ I - ~ . . LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW PLAINTIFF'S ADDITIONAL GROUNDS FOR RELIEF A. THE COURT SHOULD ORDER A NEW TRIAL PURSUANT TO PA. R.C.P. 227.1(a) (1) 8. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release dated May 30, 1972 by virtue of Defendant having failed to plead the existence of such Agreement and Release in Defendant's Answer and New Matter in accordance with Order of Court making Rule Absolute f~led by Defendant to permit Defendant to amend his defense to plead release, which Order was signed by the learned Trial Judge on February 27, 2002. B. THE COURT SHOULD DIRECT THE ENTRY OF JUDGMENT IN FAVOR OF THE PLAINTIFF, LCL INCOME PROPERTIES, L.P., II, PURSUANT TO PA. R.C.P. 227.1(a) (2) 15. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release dated May 30, 1972 by virtue of Defendant having failed to plead the existence of such Agreement and Release in Defendant's Answer and New Matter in accordance with Order of Court making Rule Absolute filed by 4'1 . "p '-' ",'r' I" ."~""-j . - . . Defendant to permit Defendant to amend his defense to plead release, which Order was signed by the learned Trial Judge on February 27, 2002. Respectfully submitted, FRIEDMAN & NG, P.C. Date'~ ~~ Richard S Friedman, Esquire 600 N. e ond street Penthouse Suite P. o. Box 984 Harrisburg, PA 17108 (717) 236-8000 f/p:pleadings\bhill.add /06 .,- , " -~ -:" ';' " - '_ ,J ~, - _ _ , . '" 1;,- = ~ ";"m'; . - . LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Richard S. Friedman, Esquire, hereby certify that on April 8, 2002, I served a copy of the within Plaintiff's Additional Grounds for Relief, by fax transmission and also by depositing same in the united States Mail, first class, postage prepaid, addressed as follows: Darrell C. Dethlefs, Esquire 3805 Market st. P. O. Box 368 Camp Hill, PA 17001 Court Administrator's Office Cumberland County Court House 1 Courthouse Square Carlisle, PA 17013-3387 The Honorable J. Wesley Oler, Jr. Cumberland County Court House 1 Courthouse Square Carlisle, PA 17013-3387 FRIEDMAN 1-C. , I . Friedman, Esquire 600 N. econd Street Penth use suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 I () I o G .' \ . 0 0 0 c: Pv <' '"1', ~.ffi :x>o ,:::J -0 :z[{) :::to ~~.;; ." "ip':.' 2r , =Bf? O)~~ '.0 -<::L''':.: r::o >:~() ~ ""t) ~[.'=H zp :J.i:" ~':c:i .-'....J Pc: - Csfn Z U1 35 ::;! r\J -< ~ , ~. -." , , ~) """') '-" ALL-5TATE LEGAL, A DMSION OF ALL-5TATEelNTERNATlONAI., INC. r-\ FORM NO.: 071li2-BF.071sa.Bl'07155-GY'07156-'Mi ~~ .~...../ , - " . .. , " '''-....,,,l 01 > ~ "'1 ~ :0 ~ ~ OJ ~ ;; ~ "'d ~ 8 :; tI oed ;;:: . 0>-3 z" :- "'d" tll 2: Z i::Ej t::IJ 0 t:L: ZO~~><Qo z ><: [fJ () if.' [fj trJ 0 h:-l '""1 q,) IjJ Z ~ i"'"1 t-< ~ d tl Z ~ ~ ~ (f) t"'1 9 z tIj ~ ~ > :d (1 ~ ~ o ro 0 0 0 c: '''' -1'1 ".. """ -:,::1 -om -0 f~;l''': , mrn ::0 Z:C 1 g~~ ~s:- 6; ,~ 1.0 -<;?;': ~O ."0 ~O _'0.'-" :% C)7.=) 2:'. :i>{~ - om c: .. .:::.. ~ Ul 55 N -< "~ I, . .,J. o:j o . :;. LCL INCOME PROPERTIES, L.P. II, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff NO. 2000 - 395 Civil Term v. HARVEY HOFFMAN, Defendant NOTICE TO PLEAD TO THE PLAINTIFF NAMED HEREIN: YOU ARE HEREBY NOTIFIED-TO FILE AWRITTEN RESPONSE TO THE ENCLOSED ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. ~c. Qd41;/bl1)Ic.~ ( Darrell C. DethieiS,~e 3805 Market Street P.O. Box 368 Camp Hill, P A 17001 (717) 975 - 9446 Attyld. No. 58805 /DJ "~ _' I.. '- "- .1, .'" " o . , , ~ , " LCL INCOME PROPERTIES, L.P, II, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs NO. 2000 - 395 Civil Term v, HARVEY HOFFMAN, Defendant DEFENDANT'S ANSWER WITH AMENDED NEW MATTER TO THE COMPLAINT QF THE PLAINTIFF LCL INCOME PROPERTIES, L.P, II 14. The Defendant incorporates by reference hereto paragraphs 1 through 13 of his Answer with New Matter filed on February 8, 2000, 15, The Plaintiff is barred from recovery because of an Agreement and Release dated May 30, 1972 which is a general release. WHEREFORE, the Defendant demands judgment in his favor and against the Plaintiff LCL Income Properties, L.P. II. ~ c. ~. (~Lt:C- Darrell C. Dethlefs, squIre 3805 Market Street P,O. Box 368 Camp Hill, PA 17001 (717) 975 - 9446 Attyld. No. 58805 lot{ I.~~ " I:, i,'.,:; o . . ... . ,. ..: LCL INCOME PROPERTIES, L.P, II, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs NO. 2000 - 395 Civil Term v. HARVEY HOFFMAN, Defendant CERTIFICATE OF SERVICE I, Brian K. Zellner, do hereby certify that on this <(J,... day of Ap~,l , 2002, 1 did serve a true and correct copy of the foregoing document on all counsel of record by depositing a copy of the same in the United States mail, first class postage prepaid, addressed to: Richard S. Friedman, Esquire 600 North Second Street Penthouse Suite P.O. Box 984 Harrisburg, P A 17108 fttJ..P , Brian K. Zellner, Esquire 3805 Market Street P.O. Box 368 Camp Hill, P A 17001 (717) 975.. 9446 Atty Id. No. 59262 10tJ .Lia.- _ ~J\~ i ,~ _~'ll....",,,~.... -_.~,_- o .~." ,'. ,n., o ,,~...,' .. 0 0 (J C f" -'1 g: .". ::;::! ""t.,;OJ -0 :_J::;-:!:! rn f11 ";--1.-:1 ,1,1'-- z::e :g8 Zr;:' 0 V91~?'" q6 -,,~... t;2C:;t "'0 ;l~ :B ?ig ::JI: :;:;:c) --.{ .. ~ ,~fn >c =::, Z :>> ~ :i 0" -< 1- : ow , o . . \ LCL INCOME PROPERTIES, L.P., II, t/d/b/a BUNKER ASSOCIATES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW HARVEY HOFFMAN, Defendant NO. 00-395 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF BEFORE OLER, J. ORDER OF COURT AND NOW, this 17th day of May, 2002, upon consideration of Plaintiff's motion for post-trial relief in the form of a motion for judgment notwithstanding the verdict and a motion for a new trial, and for the reasons stated in the accompanying opinion, the motion is denied. MChard Friedman, Esq. P.O. Box 984 Harrisburg, PA 17108 Attorney for Plaintiff "/ L~ o ~rJ7-0 Q... ~s A1arrell C. Dethlefs, Esq. / 3805 Market Street P.O. Box 368 Camp Hiil, PA 17011 Attorney for Defendant {()~ ~ I ! I I I I ~~ . ~ eu HU:D-OfF\CE Or: ., ," ""~,,, ,~. ",.,'fOy' ,1\_ \;.,;,. r;.,~:,_:-,\"'\~.)\\U;r',n 02 l",~ ~ \ 1 P\!: \: \6 CUf~3~RL~~j COUNlY PENNSYLVANIA (') .....- .'.., , ~ [0 """"._~JIlfiI.. ,_"""",I -'-I"':",..."..,~jlI -,----,' ,- ~ e; " " '-.' I < 0 . LCL INCOME PROPERTIES, L.P., II, t/d/b/a BUNKER ASSOCIATES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW HARVEY HOFFMAN, Defendant NO. 00-395 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., May 17,2002. In this quasi-contract action, Plaintiff has sued an adjoining landowner for $4,900.001 on a theory of unjust enrichment2 arising out of Defendant's use of a sewage pumping station situated on Plaintiffs land. Following a bench trial the court entered a verdict in favor ofDefendant.3 Plaintiff thereafter filed a motion for post-trial relief in the form of a motion for a new trial and a motion for judgment notwithstanding the verdict.4 Although the trial was relatively brief,5 the court was able to commit more than seventeen reversible errors, according to the motion. The following grounds were enumerated in support of the motion for a new trial: 1. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said 1 See N.T. 12, Trial, February 27, 2002 (hereinafter N.T.--.J.. 2 See N.T. 42. 3 Order of Court, February 28, 2002. 4 Plaintiff, LCL Income Properties, L.P., II, Motion for Post-Trial Relief, filed March 12, 2002 (hereinafter Plaintiff s Motion for Post-Trial Relief); Plaintiff s Additional Grounds for Relief, filed April 9, 2002 (hereinafter Plaintiffs Supplemental Motion for Post-Trial Relief). 5 Forty-five minutes. tf)7 .-" - c . Agreement and Release having been objected to by LCL legal counsel as hearsay evidence. [6] 2. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, and not being binding on successors in title by its very terms. 3. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Release by its very terms was limited to claims "from the beginning of the world to the date of these presents", that being May 30,1972. 4. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Defendant could not have relied on the Release because, as presented at trial, the Defendant did not know of its existence at the time he purchased the property at issue at trial. 5. The Trial Court's verdict is against the weight of the evidence. 6. The Trial Court's verdict is not supported by substantial evidence. 7. The verdict is, in form and substance, inconsistent with the law ofthe Commonwealth of Pennsylvania. [7a]. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release dated May 30, 1972 by virtue of Defendant having failed to plead the existence of such Agreement and Release in Defendant's Answer and new Matter in accordance with Order of Court making Rule Absolute filed by Defendant to permit Defendant to amend his defense to plead release, which Order was signed by the learned Trial Judge on February 27,2002.7 In support of the motion for judgment notwithstanding the verdict, Plaintiff enumerated the following grounds: 6 A review of the record reveals that the objection was based on relevancy grounds. See N.T. 35- 36. 7 Plaintiff's Motion for Post-Trial Relief, paragraphsl-7; Plaintiff's Supplemental Motion for Post-Trial Relief, paragraph 8. 2 ~' "' (6 ~ - - , I , , , 0 . 8. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release having been objected to by LCL legal counsel as hearsay evidence. [8] 9. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972,said Agreement and Release being irrelevant and immaterial, and not being binding on successors in title by its very terms. 10. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Release by its very terms was limited to claims "from the beginning of the world to the date of these presents", that being May 30, 1972. 11. The Learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Defendant could not have relied on the Release because, as presented at trial, the Defendant did not know if its existence at the time he purchased the property at issue at trial. 12. The Trial Court's verdict is against the weight of the evidence. 13. The Trial Court's verdict is not supported by substantial evidence. 14. The verdict is, in form and substance, inconsistent with the law of the Commonwealth of Pennsylvania. [14a]. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release dated May 30, 1972 by virtue of Defendant having failed to plead the existence of such Agreement and Release in Defendant's Answer and New Matter in accordance with Order of Court making Rule Absolute filed by Defendant to permit Defendant to amend his defense to plead release, which Order was signed by the learned Trial Judge on February 27,2002.9 8 A review ofthe record reveals that the objection was based on relevancy grounds. See NT. 35- 36. 9 Plaintiff s Motion for Post-Trial Relief, paragraphs 8-14; Plaintiff's Supplemental Motion for Post-Trial Relief, paragraph 15. 3 161 0;;-_- 1,--. - .. ~'~ ~ \i o o In support of both the motion for a new trial and the motion for judgment notwithstanding the verdict, Plaintiff set forth the following ground: 15. LCL further assigns as error and as grounds for modifYing the judgment, or in the alternative, for the granting of a new trial, each of the matters offered by the Petitioner during trial and refused by the Trial Court, in each objection made by the Petitioner during trial and overruled by the Trial Court, and hereby incorporates into this Motion by reference, such points in the trial record. IO Briefs have now been submitted by counsel for the parties in support of their respective positions on Plaintiffs motion for post-trial relief. For the reasons stated in this opinion, Plaintiffs motion will be denied. STATEMENT OF FACTS Plaintiff is a limited partnership known as LCL Income Properties, L.P. II, which trades and does business as Bunker AssociatesY It owns and operates a garden apartmentl2 complex known as Bunker Hill Apartments13 located in Wormleysburg Borough, Cumberland County, Pennsylvania,14 and having a mailing address of 1100 Yverdon Drive, Camp Hill, Pennsylvania.15 Defendant is an adult individual named Harvey Hoffman.16 He owns a townhouse apartment complex adjacent to Bunker Hill Apartments,17 known as 10 Plaintiff's Motion for Post-Trial Relief, paragraph 15. 11 NT 37,40. 12N.T.32. 13N.T.32. 14 N.T. 31. 15 See Plaintiff's Complaint, filed January 21, 2000, paragraph 1 (hereinafter Plaintiff's Complaint). The notes of testimony contain an obviously incorrect address for the complex, probably as a result of a transcription error. See N.T. 15. 16 Plaintiff's Complaint, paragraph 2; Defendant's Answer with New Matter to the Complaint of the Plaintiff LCL Income Properties, L.P., II, tJd/b/a Bunker Associates, filed February 8, 2000, paragraph 2 (hereinafter Defendant's Answer with New Matter). 17 Plaintiff's Complaint, paragraph 2; Defendant's Answer with New Matter, paragraph 2. 4 Ito , .-. I, , o o Yverdon Manor18 and having a mailing address of 1200 Yverdon Drive, Camp Hill, Pennsylvania.19 At one time, the land owned by Plaintiff and the land owned by Defendant comprised a 52-acre tract owned by a common grantor in the respective chains of title named Arthur R. Rupley.2o On part of the land, Mr. Rupley or his predecessor in interest, A.R. Rupley Development Company, built about 60 garden apartments21 and a sewage pumping station which served the units.22 This complex is known as Bunker Hill Apartments.23 On March 7,1969, Mr. Rupley (and his spouse) conveyed 2.47 unimproved acres of the tract to Defendant's predecessor in interest, Elston L. Wickenheiser (and his spouse)?4 When Mr. Wickenheiser (who had served as construction supervision manager in connection with the Rupley developmene5) constructed 14 townhouses on his tract in 1972,26 these townhouses were also served by the pumping station on the land retained by Mr. Rupley?7 This complex is known as Yverdon Manor.28 An agreement dated Jaunary 30, 1972, between Arthur R. Rupley (and his spouse) and Elston L. Wickenheiser (and his spouse) confirmed and ratified this arrangement whereby sewage from the Wickenheiser property was permitted to 18N.T.32. 19 NT 19, 20 N.T. 33. 21 N.T. 33; see N.T. 10; Defendant's Exhibit 1, Trial, February 27,2002 (hereinafter Defendant's Exhibit ~. 22 NT 33. 23N.T.32. 24 Defendant's Exhibit 1. 25N.T.34. 26 NT 10-11. 27 N.T. 33-34. 28 N.T. 32. 5 II { ~~ - ~ ~ - "M-_ ,~ .-, it'! . o . flow without charge through the pumping station on the Rupley property en route to the municipal sewer authority treatment plant.29 The agreement inured to the benefit of the parties and "their heirs, executors, administrators and assigns.,,3o This arrangement has existed for the last 30 years.31 In 1986, Plaintiff purchased the Bunker Hills Apartments portion of the Rupley tract.32 Shortly thereafter, according to Mr. Wickenheiser's testimony, he was contacted by an attorney on behalf of Plaintiff who inquired about the use of the pumping station on Plaintiff's property for the benefit of the Wickenheiser property.33 Mr. Wickenheiser stated that he furnished a copy of the 1972 agreement to Plaintiff's counsel, that he received no further communications from the attorney, and that the use of the pumping station continued thereafter without incident or charge.34 On August 16, 1996, Defendant (and his spouse) purchased the Yverdon Manor portion of the Rupley tract, from Mr. Wickenheiser (and his spouse).35 In 1998, Plaintiffs regional manager,36 who had been associated with management of the Bunker Hills Apartments since 1988,37 contacted Plaintiff's counsel with a 29 N.T. 20-21; Defendant's Exhibit 3, 30 Defendant's Exhibit 3, paragraph 3. The record does not contain evidence that the agreement was ever recorded. See N.T. 35. 31 N.T. 9-12, 24-25. 32 N. T. 14-15, 33. The deed for this conveyance is not part of the record, and it is not clear whether the grantor in the conveyance was Rupley or a successor in interest to Rupley, A reference in the record to an undefined purchase by "Elliott Leibowitz" is otherwise unexplained. N.T.I1-12. 33 N.T. 24-25. 34 NT 24-25. Plaintiff disputed Mr. Wickenheiser's testimony that he had dealt with an attorney who had contacted him on behalf of Plaintiff. NT 38-39. 35 N.T. 15; Defendant's Exhibit 2. Defendant received a special warranty deed. Defendant's Exhibit 2. 36N.T.9. 37 N.T. 9. 6 III .' _~ 1~~ '" o . view toward extracting payment from Defendant for use of the pumping station.38 Based upon past expense records, she concluded that a fair pro rata share of the cost of the station for Defendant was $900 per year.39 On January 21, 2000, Plaintiff filed a complaint against Defendant for unjust enrichment,40 demanding payment in the amount of $900 per year retroactive to the date Defendant purchased his property in 1996.41 After the filing of an answer and new matter, Defendant filed a motion to amend that pleading to include the aforesaid agreement among his defenses.42 No answer was filed by Plaintiff to the rule issued by the court in response to the motion,43 nor to a rule subsequently issued by the court on Defendant's motion to make the original rule absolute.44 Upon motion of Defendant, and in the absence of objection by Plaintiff, the amendment was permitted.45 It is clear from the trial record that Plaintiff acquiesced in the court's allowance of this amendment to the pleading.46 Following a nonjury trial, the court took the matter under advisement.47 On February 28, 2002, a verdict was entered in favor of Defendant: AND NOW, this 28th day of February, 2002, upon consideration of Plaintiffs complaint in the above-captioned matter, and following a non-jury trial held on February 27, 38 N.T. 10-12. 39 NT 12. 40 See N.T. 42. 41 Plaintiff's Complaint, ad damnum clause. 42 Motion of Defendant To Amend Answer and New Matter, filed December 4,2000. 43 Order of Court, December 11,2000 (Bayley, J.). 44 Order of Court, February 4, 2002. The second rule was issued because it appeared that neither counsel had pursued the issue of amendment actively at the time of the original motion. 45 Order of Court, February 27, 2002. 46 N.T. 16. 47 Order of Court, February 27, 2002. 7 'I " .~ "L; II ~ I ~ -<'l,', .. o CD 2002, the court finds in favor of Defendant and against Plaintiff.48 Plaintiff's motion for post-trial relief was filed on March 12,2002.49 It was supplemented by a second filing on April 9, 2002.50 DISCUSSION Statement of Law Motion for post-trial relief-specificity. Under Pennsylvania Rule of Civil Procedure 227.I(b)(2), a motion for post-trial relief "may not be granted unless the grounds therefor... are specified in the motion." Pa. R.C.P. 227. 1 (b)(2). A "boilerplate" ground, such as a general assertion that a verdict was against the weight of the evidence, is not normally considered specific enough to satisfY this rule. See, e.g., Dauphin Deposit Bank and Trust Co. v. Pifer, 383 Pa. Super. 275, 282,556 A.2d 904, 907 (1989). Sufficiency of the evidence. "In considering the sufficiency of the evidence to sustain the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences, and determine whether the evidence introduced at trial was sufficient to sustain the verdict." Weir v. Weir, 428 Pa. Super. 515, 530, 631 A.2d 650, 657 (1993) (quoting Snyder v. Snyder, 427 Pa. Super. 494, 505, 629 A.2d 977, 982 (1993)). A challenge to the sufficiency of the evidence represents, in essence, a contention that no reasonable trier-of-fact could have found in accordance with the verdict as a matter oflaw. See In re Estate of Ellis, 460 Pa. 281, 285 n.5, 333 A.2d 728,730 n.5 (1975). As a general rule, judgment n.o.v. may not be entered upon a diminished record. Trach v. Fellin, No. 1921 EDA 2000,2002 WL 65633, at 5 (pa. Super. Ct. January 18,2002). 48 Order of Court, February 28, 2002. 49 Plaintiff, LCL Income Properties, L.P., II, Motion for Post-Trial Relief, filed March 12,2002. 50 Plaintiff's Additional Grounds for Relief, filed April 9, 2002. 8 Il4- ~-- . o . Weight of the evidence. "Granting a new trial on the ground that the verdict is against the weight of the evidence is generally committed to the sound discretion of the trial court." Dierolfv. Slade, 399 Pa. Super. 9, 15,581 A.2d 649, 652 (1990). The test is whether the verdict "was so contrary to the evidence as to shock one's sense of justice and 'to make the award of a new trial imperative, so that right may be given another opportunity to prevail." Id. (quoting Commonwealth v. Taylor, 324 Pa. Super. 420, 425, 471 A.2d 1228, 1230 (1984)). "In a bench trial it is the duty of the trial judge to judge credibility of the witnesses and to weigh their testimony." Gasper ex rei. Weir v. Estate of Ciao, 521 Pa. 491, 503, 556 A.2d 819, 824 (1989). "[T]he trial court is free to believe all, part, or none of the evidence that is presented. . . ." Hodges v. Rodriguez, 435 Pa. Super. 360, 366, 645 A.2d 1340, 1343 (1994). Evidence-relevancy. "Relevant evidence" means "evidence having any tendency to make the existence of any fact that is of conseqence to the determination of the action more probable or less probable than it would be without the evidence." Pa. R.E. 401. Real property principles. Certain easements can arise by implication. Where an owner of land subjects part of it to a servitude or easement in favor of another part under appropriate circumstances and "then conveys either part, the purchaser takes subject to the burden or with the benefit, as the case may be, even though not mentioned in the deed." 1 Ladner, Conveyancing in Pennsylvania SI1.02(d) (John Makdisi ed., 4th ed. 1979) (footnotes omitted). "The easement is implied when (1) there is a separation of the title to two or more parts of the real estate, (2) there is such an obvious and continued user before the separation as to show intent to make the apparent easement permanent, (3) the easement is reasonably necessary to the beneficial enjoyment of the dominant tenement, and (4) the servitude is continuous and self-acting." Id. By statute in Pennsylvania, it is provided as follows: 9 /11) ,'" - "' <" . "I I I # c . All deeds or instruments in writing for conveying or releasing limd hereafter executed, granting or conveying lands, unless an exception or reservation be made therein, shall be construed to include all the estate, right, title, interest, property, claim, and demand whatsoever of the grantor or grantors, in law, equity, or otherwise howsoever, of, in, and to the same, and every part thereof, together with all and singular the improvements, ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof. Act of April 1, 1909, P.L. 91, $i2, as amended, 21 P.S. $i3. Verdict in norifury civil action at law, Under Pennsylvania Rule of Civil Procedure 1038(c), in a nonjury civil action at law "[t]he decision [of the trial judge] may be made orally in open court at the end of the trial. . . or it may be made [thereafter] in writing and filed forthwith. . .. The trial judge shall render a decision within seven days after the conclusion of the trial except in protracted cases or cases of extraordinary complexity." "The decision of the trial judge may consist only of general fmdings as to all parties but shall dispose of all claims for relief." Pa. R.C.P. 1038(b). Specific findings of fact, conclusions of law and discussion are not required. Id. Urifust enrichment. The doctrine of unjust enrichment is a doctrine founded upon equitable principles whereby "the law implies a contract, which requires the defendant to pay to the plaintiff the value of the benefit conferred." Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. Ct. 1999). Unjust enrichment requires proof of several elements: (1) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. Id. (quoting Schenck v. K.E. David, Ltd., 446 Pa. Super. 94, 97, 666 A.2d 327,328 (1995)). 10 Il (P '- , ". '~.' ." I" . o o .. ," The application of the doctrine of unjust enrichment "depends upon the particular factual circumstances of the case at issue." Id. at 1203-04 (quoting Schenck, 446 Pa. Super. at 97,666 A.2d at 328. To sustain a claim of unjust enrichment, a claimant must show that the party against whom recovery is sought either wrongfully secured or passively received a benefit that it would be unconscionable for [him or] her to retain. Id. at 1204 (quoting Torchia v. Torchia, 346 Pa. Super. 229, 233, 499 A.2d 581, 582 (1985) (citation omitted)). Apolication of Law to Facts Sufficiency a/the evidence. To the extent that Plaintiffs post-trial motion challenges the sufficiency of the evidence to support the verdict, and on this basis requests entry of judgment in its favor notwithstanding the verdict, the motion may be addressed by noting a number of factors tending to negate the proposition that Defendant "wrongfully secured or passively received a benefit that it would be unconscionable for [him] to retain." Id. These include the consensual origin of the use of the pumping station for the benefit of Defendant's land, the written agreement to that effect, the assignability and succession of the agreement by its terms, the statutory general rule that a conveyance of land will pass all of the owner's rights therein without regard to an absence of an express assignment in the deed of conveyance, the equitable principles underlying the implied easement doctrine, the acceptance by Plaintiff and its predecessors in interest of the existing arrangement for almost a quarter of a century, and the equitable qualities of an action for unjust enrichment. Although the case is admittedly a difficult one, the circumstances did not, in the court's view, militate in favor of a finding that Plaintiff had met its burden of proving either that Defendant had wrongfully secured a benefit or that he had received a benefit which it would be unconscionable for him to retain. Exclusion of the agreement from consideration on this point would not be proper, because of 11 /11 ~- ~ , ";'; . o o ~ .' the rule that a sufficiency-of-the-evidence argument may not be based upon a diminished record. Admission of agreement. Given the equitable issues underlying a claim for ~ust enrichment, including the propriety of the origin of the benefit conferred upon a defendant in such an action, and the implied easements which may arise from a common grantor's actions, the court is unable to agree with Plaintiffs position that the agreement in the present case was inadmissible on relevancy grounds. In addition, it is clear from the record that Defendant's amendment of his responsive pleading to include the agreement as part of his defense was acquiesced in, and prepared for, by Plaintiff. Any prejudice to Plaintiff from Defendant's failure to promptly file a formal pleading incorporating the amendment following authorization by the court for inclusion of the agreement among the defenses to be litigated was purely illusory. Weight of the evidence. As noted, a boilerplate motion requesting a new trial on the basis of the "weight of the evidence" is not specific enough to satisfy the requirements of Pennsylvania Rule of Civil Procedure 227. 1 (b)(2). In addition, on the merits, the motion is not persuasive in view of the evidence supporting the verdict as recited above and the province of court, as trier-of- fact, to judge the credibility of the witnesses, to weigh their testimony, and to believe all, part or none of the evidence presented. The court's finding that Plaintiff had not proven the elements of unjust enrichment was not, it is believed, so shocking as to mandate the award of a new trial to avoid a miscarriage of justice. Consistency of verdict in form and substance with law of Commonwealth. The verdict in the present case constituted a general finding in Defendant's favor, and against Plaintiff, on the issue of whether Plaintiff had proven the elements of unjust enrichment. The verdict was in writing and was entered within seven days of the trial date. The court is not aware of any inconsistency of the verdict in form or substance with the law of the Commonwealth. 12 Il ~ " " <.' c o Unspecified trial errors. As noted, a boilerplate assignment of error will generally be held insufficient to raise an issue for purposes of Pennsylvania Rule of Civil Procedure 227. 1 (b)(2). It is believed that Defendants' assignment of "each of the matters offered by the Petitioner (sic) during trial and refused by the Trial Court, in each objection made by the Petitioner during trial and overruled by the Trial Court," as "error and as grounds for modifying the judgment, or in the alternative, for the granting of a new trial" is encompassed by that limitation. A contrary ruling would be incompatible with the obvious purpose of the Rule to focus the issues being pursued on a post-trial motion for the benefit of opposing parties and the court. Consequently, no attempt has been made herein to review the record in order to identify and defend every ruling adverse to Plaintiff made during the course of the trial. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 17th day of May, 2002, upon consideration of Plaintiffs motion for post-trial relief in the form of a motion for judgment notwithstanding the verdict and a motion for a new trial, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, s/J. Wesley Oler. Jr. J. Wesley Oler, Jr., J. Richard Friedman, Esq. P.O. Box 984 Harrisburg, P A 17108 Attorney for Plaintiff Darren C. Dethlefs, Esq. 3805 Market Street P.O. Box 368 Camp Hill, PA 17011 Attorney for Defendant 13 I \.~ " { _..a . I LCL INCOME PROPERTIES, L.P. II, d.b.a. BUNKER ASSOCIATES Plaintiff v. HARVEY HOFFMAN Defendant -'"'_',0 _ .1:, J'" . : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA : NO. 2000-395 Civil Tenn : CIVIL ACTION - LAW NOTICE OF APPEAL Notice is hereby given that LCL Income Properties, L.P, II, d.b.a. Bunker Associates, the Date: t .-/0-?;c;L. above-named Plaintiff, hereby appeals to the Superior Court of Pennsylvania from the Order entered in tbis matter on the 17th day of May, 2002. Tbis Order has been reduced to judgment and entered in the docket as evidenced by the attached copy of the docket entry. kip - Doc\Pleadings\Bunker.App Respectfully submitted, MAN, P.C. JohnF.Kin ,Esq 're 600 N. Secon et Penthouse Suite P. O. Box 984 Harrisburg,PA 17108 (717) 236-8000 Counsel for Plaintiff LCL Income Properties, L.P. II, d.b.a. Bunker Associates I~O ,-~ -j ~ .~ ./IfYB510 .> 2000-00395 -- I , ._~ ~~" ~.~ LCL Cu~rland County prot~onotary~." Office W Civil Case Inqulry V INCOME PROPERTIES L P II (vs) HOFFMAN HARVEY Filed. . . . . . . . : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 1/21/2000 2:14 0/00/0000 0/00/0000 Page 1 Reference No. . : Case Type.....: COMPLAINT Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc. : ------------ Case Comments ------------- ******************************************************************************** General Index Attorney Info LCL INCOME PROPERTIES L P II BUNKER ASSOCIATES 1100 YVERDON DRIVE CAMP HILL PA 17011 HOFFMAN HARVEY 1200 YVERDON DRIVE CAMP HILL PA 17011 PLAINTIFF PLAINTIFF FRIEDMAN RICHARD S FRIEDMAN RICHARD S DEFENDANT Judgment Index HOFFMAN HARVEY Amount 1,950.00 J;lat", Desc 10/20/2000 AWARD OF ARBITRATORS ******************************************************************************** * Date Entries * ******************************************************************************** 1/21/2000 2/02/2000 2/08/2000 2/17/2000 6/29/2000 7/18/2000 9/12/2000 9/15/2000 10/20/2000 11/08/2000 12/04/2000 12/04/2000 11/09/2001 11/16/2001 FIRST ENTRY COMPLAINT - CIVIL ACTION ACCEPTANCE ,OF SERVICE DEFENDANT'S ANSWER WITH NEW MATTER TO THE COMPLAINT OF THE PLAINTIF LCL INCOME PROPERTIES LP II T/D/B/A BUNKER ASSOCIATES ------------------------------------------------------------------- PLAINTIFF'S ANSWER TO DEFT NEW MATTER ---------------_._-------------------------------------------------- PETITION FOR APPOINTMENT OF ARBITRATORS ------------------------------------------------------------------- ORDER OF COURT 7/03/00 APPOINTMENT OF ARBITRATORS GEORGE E HOFFER P JUDGE ARBtTRATORS ARE ROBERT FREY II ESQ - JENNIFER DEITCHMAN ESWQ AND TRICIA DILS NAYLOR ESQ NOTICE MAILED 7/18/00 ------------------------------------------------------------------- MOTION FOR CONTINUANCE ------------------------------------------------------------------- ORDER - DATED 9/15/00 - IN RE MOTION FOR CONTINUANCE - GRANTED - BY GEORGE E HOFFER PJ - COPIES MAILED 9/15/00 ------------------------------------------------------------------- _~WARD OF ARBITRATORS - IN FAVOR OF THE PLAINTIFF AND AGAINST THE DEFENDANT IN THE AMOUNT OF $1950.00 PLUS INTEREST AT THE LEGAL RATE FROM AUGUST 1, 1998 PARTIES TO BEAR THEIR OWN COSTS NOTICE MAILED BILLED COUNTY FOR ARBITRATORS 12/06/00 ------------------------------------------------------------------- NOTICE OF APLEAL FROM AWARD OF BOARD OF ARBITRATORS - BY DARRELL C DETHLEFS ESQ ATTY FOR APPELLANT ------------------------------------------------------------------- MOTION OF DEFENDANT TO AMEND ANSWER AND NEW MATTER - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- MOTION OF DEFENDANT TO AMEND ANSWER AND NEW MATTER - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL - BY RICHARD S FRIEDMAN ESQ FOR PLFF R~g%~"2i~~~RRI~=~gft~~g~~~7~g~o~~i~'~~R~~R~~~~C~~F~~E~~~~~~H~~---- UNDERSIGNED JUDGE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA = PRETRIAL MEMORANDA SHALL BE SUBMITTED BY COUNSEL AT LEAST 5 DAYS PRIOR TO PRETRIAL CONFERENCE - A NONJURY TRIAL IN THE ABOVE MATTER IS SCHEDULED FOR 2/27/02 AT 9:30 AM IN CR 1 CUMBERLAND COURTHOUSE f~I'- '-""," 'W: _~,,<w,'.,'W'S 51 0 , '. ,,~ 2000-00395 _~,"u> ~ " Cu~rland County prothonotaryo',, Office W Ci vil Case Inquiry " LCL INCOME PROPERTIES L P II (vs) HOFFMAN HARVEY Page 2 Reference No. . : Case Type.. ...: COMPLAINT Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc. : ------------ Case Comments ------------- CARLISLE PA - BY THE COURT J WESLEY OLER 11/16/01 ---------------------------------------------------~--------------- MOTION TO MAKE RULE ABSOLUTE - DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- ORDER OF COURT - DATED 2/4/02 - IN RE DEFTS MOTION TO MAKE RULE ABSOLUTE A RULE IS HEREBY ISSUED UPON PLFFS TO SHOW CAUSE WHY RELIEF REQUEST SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 10 DAYS OF SERVICE - BY THE COURT J WESLEY OLER JR J COPIES MAILED 2/4/02 ---------------------------------------------------~--------------- MOTION TO MAKE RULE ABSOLUTE - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- ORDER OF COURT - DATED 2/28/02 - IN RE PLFFS COMPLAINT IN THE ABOV~ CAPTIONED MATTER AND FOLLOWING ANON-JURY TRIAL HELD ON 2/27/02 THE COUR![' FINDS IN FAVOR OF DEFT AND AGAINST PLFF - BY THE COURT J WESLEY OLER JR J COPIES MAILED 2/28/02 ------------------------------------------------------------------- 2/27/2002 ORDER - DATED 2/27/02 - IN RE MOTION BY THE DEFT AND FAILURE OF THE PLFF TO SHOW CAUSE WHY RELIEF SHOULD NOT BE GRANTED THE DEFT IS GRANTED PERMISSION TO AMEND HIS, DEFENSE AS TO INCLUDE THE DEFENSE OF RELEASE - BY THE COURT J WESLEY OLER JR J COPIES MAILED 3/12/2002 ORDER-OP-COURT-=-DATED-3/12!02-=-IN-RE-PLPPS-LCL-INCOME-PROPERTIES- LP II MOTION FOR POST-'l'RIAL RELIEF - BY THE COURT J WESLEY OLER JR J COPIES MAIELD 3/12/02 ------------------------------------------------------------------- 3/12/2002 PLAINTIFF LCL INCOME PROPERTIES LP II MOTION FOR POST-TRIAL RELIEF - BY RICHARD S REI EDMAN ESQ ------------------------------------------------------------------- TRANSCRIPT FILED - BY THE COURT J WESLEY OLER JR J ------------------------------------------------------------------- ORDER OF COURT - DATED 2/27/02 - UPON CONSIDERATION OF THE COMPLAINT FILED IN THE ABOVE CAPTIONED MATTER AND FOLLOWING A NONJURY TRIAL THE RECORD IS DECLARED CLOSED AND THE MATTER IS TAKEN UNDE~ ADVISEMENT - BY THE COURT J WESLEY OLER JR J COPIES MAILED 4/1/02 ------------------------------------------------------------------- 4/09/2002 PLAINTIFF'S ADDITIONAL GROUNDS FOR RELIEF - BY RICHARD S FRIEDMAN ESQ ------------------------------------------------------------------- 4/10/2002 DEFENDANT'S ANSWER WITH AMENDED NEW MATTER TO THE COMPLAINT OF THE PLFF LCL INCOME PROPERTIES LP II - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- TRANSCRIPT FILED - BY THE COURT J WESLEY OLER JR J ------------------------------------------------------------------- ORDER OF COURT - DATED 5/17/02 - IN RE PLFF'S MOTION FOR POST-TRIAL RELIEF - DENIED - BY THE COURT J WESLEY OLER JR J COPIES MAILED 5/17/02 - - - - - - - - - - - - - - LAST ENTRY - - - - - -~ -1~ *************************************************************~*2*.*~ * Escrow Information a: >oS! * Fees & Debits Beq Bal Pvmts/Adl End Ba~ . *****************************************~******************* ~*** w :!? COMPLAINT 35.00 35.00 .00 a: ~ Ii TAX ON CMPLT .50.50.00 ::> 0 SETTLEMENT 5.00 5.00 .00 :IE CI> . JCPFEE 5.00 5.00 .OOO~ APPT OF ARBITRA 15.00 15.00 .00 a:.c APPEAL ARBITRAT 290.00 290.00 .00 u.::;o 0 ------------------------ ------------ Q 350.50 350.50 .00 >- ~.~ >- Q. CI> ell **************************************************************81i~ * * End of Case Information >- **************************************************************w~41~ * ::J - .!"'" ~!~.~ IJ.A (~:' " 1/30/2002 2/04/2002 2/21/2002 2/28/2002 3/28/2002 3/28/2002 4/15/2002 5/17/2002 1/21/2000 2:14 0/00/0000 0/00/0000 Filed........ : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: JR J COPIES MAILED ******** * .,. * *i******* I ******* * ******* .'_"d -'.~,^~" -, ,- --'-'.-~"-'-",,I--"~,.~-,.;"--,,-- ' , "'Ie " . o LCL INCOME PROPERTIES, L.P. n, d.b.a. BUNKER ASSOCIATES Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2000-395 Civil Tenn HARVEY HOFFMAN : CIVIL ACTION - LAW Defendant REQUEST FOR TRANSCRIPT; or, Alternatively, USE OF THE TRANSCRIPT IN THE COURT FILE A Notice of Appeal having been filed in this matter, the Official Court Reporter is hereby ordered to produce, certify and file the Transcript in the matter in confonnity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. There is a transcript already in the Court file, as a result of a previously filed Motion for Post Trial Relief. If this transcript confonns to the aforementioned Rule, then it may be used. Respectfully submitted, ~---_. Date: I' ---/~ -Od-- DMAN, P.C. JohnF. ng, 600 N. Second Penthouse Suite P. O. Box 984 Harrisburg,PA 17108 (717) 236-8000 Counsel for Plaintiff LCL Income Properties, L.P. n, d.b.a. Bunker Associates I ~~ ~ -~~-.~ -- I, " . . LCL INCOME PROPERTIES, L.P. II, d.b.a. BUNKER ASSOCIATES Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2000-395 Civil Term HARVEY HOFFMAN : CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I, John F. King, Esquire, hereby certify that on June &, 2002, I served a copy of the within Notice of Appeal and Order for Transcript; or, Alternatively, Use of The Transcript in The Court File, by depositing same in the United States Mail, first class, postage prepaid, addressed as follows: Darrel C. Dethlefs, Esquire 3805 Market St PO Box 368 Camp Hill, PA 17011 Court Administrator Ctftnberland County Court House 1 Courthouse Sq Carlisle, PA 17013-3387 The Honorable J. Wesley Oter, Jr. Cumberland County Court House 1 Courthouse Sq Carlisle, PA 17013-3387 Official Court Reporter Cumberland County Court House 1 Courthouse Sq Carlisle, PA 17013-3387 F. King, Esq' e 6 N, Second Street enthouse Suite P. O. Box 984 Harrisburg, P A 17108 (717) 236-8000 I~f niDi-" """ '. (; 1 -.....;..~-.....IfiiiIir--, _-, -."1; ~l--- = o '" ~"n " ~~V,' ""'- ,~ '''~ .(:: B ; ,', j ~: L.. ~ () , o o Fl o 7:b.. ~ -t:.' -t- ~(J ~1- ...... f' f' .~ -- u"""""- ,""'\ I""" , ", - -,', ~. . ~ ff, L.'".:' .,j: ,~ <0 'i C) c: ".,,,."'tJ~ rTlrn - ~,_," Z::.;n -.... :;:::r (i) J>' -<Z R-C; ,1> _ 2:~ .i ~C) -:c:, ~ - z: ~," :'JO " o r" Si: o " :~ Ci1':O f"'- :89 :~6 ~.... -r/ "'-):.-rl 7-("') t'jrn :;;! :JJ -< -.J v ~ m ~..."' -- --~~'" 10:32~M. tJ. o Appeal Docket Sheet Docket Number: 972 MDA 2002 Page 1 of 3 June 20, 2002 o 60- i/t6- Superior Court of Pennsylvania Awaiting Original Record CaseType: Civil Action Law - LCL Income Properties, L.P. II, d.b.a. Bunker Associates, Appellant v. Harvey Hoffman Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: June 20, 2002 Journal Number: Case Category: Civil Consolidated Docket Nos.: Related Docket Nos.: Next Event Type: Docketing Statement Received Next Event Type: Original Record Received SCHEDULED EVENT Next Event Due Date: July 5, 2002 Next Event Due Date: July 30, 2002 6/20/02 3023 I~f ~.,~ /. " 10:3U\.M. lW. - o o Appeal Docket Sheet Docket Number: 972 MDA 2002 Page 2 of 3 June 20, 2002 Appellant Pro Se: IFP Status: Appellee Pro Se: IFP Status: Fee Date 6/19/02 Superior Court of Pennsylvania - COUNSEL INFORMATION LCL Income Properties, L.P. II, d.b.a. Bunker Associates Appoint Counsel Status: No Appellant Attorney Information: Attorney: King, John F. Bar No.: 61919 Law Firm: Address: 600 N. Second Street, Penthouse Suite P,O. Box 984 Harrisburg, PA 17108 Phone No.: (717)236-8000 Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No Hoffman, Harvey Appoint Counsel Status: Appellee Attorney Information: Attorney: Dethlefs ,Darrell C. Bar No.: 58805 Law Firm: Address: 3805 Market Street P.O, Box 368 Camp Hill, PA 17001 Phone No.: (717)975-9446 Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No FEE INFORMATION Fee Name Notice of Appeal Fee Amt 55.00 Paid Amount 55.00 Receipt Number 2002SPRMD000569 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Date of Order Appealed From: May 17, 2002 Date Documents Received: June 19, 2002 Order Type: Order Entered Judge: 6/20/02 Division: Civil Judicial District: 9 Date Notice of Appeal Filed: June 17, 2002 OTN: Oler, Jr., J. Wesley Judge Lower Court Docket No.: 2000-395 ORIGINAL RECORD CONTENTS 3023 I~~ ,- (--. , - ~,..._, ,,~~ ~-'i!i;il ~'-"~~. I 10:3:!'A.M. ~ c o Appeal Docket Sheet Docket Number: 972 MDA 2002 Page 3 of 3 June 20, 2002 Superior Court of Pennsylvania - Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS Filed Date DOCKET ENTRIES Docket Entry/Document Name Party Type Notice of Appeal Filed Filed By June 20, 2002 Appellant LCL Income Properties, L.P. II, d.b.a. Bunker Associates June 20, 2002 Docketing Statement Exited (Civil) Middle District Filing Office 6/20/02 3023 1~7 ~~ ",~-,~-......itll I e_,"", '--, ..Iti.~~~iiiIllIiii~-~ -" v .",1'- ,,' .. o ~.{J-' ~""II .. "-'I .... I (") C ~~ ~::;;: :.::;C,.l ~r- ,,~C<; :Pc ~ a I" ~--~ .~f) :--r; ---I -'~i:D ,,-- ~-2,:~3 :_) (i..-. ,~:;::i~ r) -+1 :YCJ ""'''m ~ S -< :e !,~ """ ::r 9 e- m I! Cu~la~d.County prot~onotary~"",-, Office .., C1Vll Case Inqulry '-' 2000-00395 LCL INCOME PROPERTIES L P II (vs) HOFFMAN HARVEY Reference No..: Filed........: Case Type.....: COMPLAINT Time.........: Judgment. . . . . . .00 Execution Date JVdge Assigned: HOFFER GEORGE E PJ Jury Trial.... Dlsposed Desc.: Disposed Date. ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: "~~~--~ ,~. PYS510 -" ,~ ... Page 1 1/21/2000 2:14 0/00/0000 0/00/0000 972 MDA 2002 **********-********************************************************************** General Index Attorney Info LCL INCOME PROPERTIES L P II BUNKER ASSOCIATES 1100 YVERDON DRIVE CAMP HILL PA 17011 HOFFMAN HARVEY 1200 YVERDON DRIVE CAMP HILL PA 17011 PLAINTIFF PLAINTIFF FRIEDMAN RICHARD S KING JOHN F FRIEDMAN RICHARD S KING JOHN F DEFENDANT JudgmEent Index HOFFMAN HARVEY LCL INCOME PROPERTIES L P II BUNKER ASSOCIATES Amount 1,950.00 Date 10/.20/.2000 7/24/2002 7/24/2002 Desc AWARD OF ARBITRATORS ORDER OF COURT ORDER OF COURT ******************************************************************************** * Date Entries * ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - ~~~:~~~:_=_~~~~~_~~:~~~____J_~__2_____________________--__________ ~~~~::~~~-~~-~~~~~~~---~----------------------------------------- DEFENDANT'S ANSWER WITH NEW MATTER TO THE COMPLAINT OF THE PLAINTIF LCL INCOME PROPERTIES LP II T/D/B/A BUNKER ASSOCIATES ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~l~~~(Jl~~~~~~~~~~~~~~~~~~ ~~:~:~~~ - ~~~ - ~::~~~:~~~: - ~~ - ~~~~:~:~~~ - - - - Vi - - - - - - - - - - - - - - - - - - - -- ORDER OF COURT 7/03/00 APPOINTMENT OF ARBITRATORS GEORGE E HOFFER P JUDGE ARBtTRATORS ARE ROBERT FREY II ESQ - JENNIFER DEITCHMAN ESWQ AND TRICIA OILS NAYLOR ESQ 1 C. NOTICE MAILED 7/18/00 ,1 0~~~~~~~~~~~~~i~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~_~_~~~~~~~~~~~~~~ ORDER - DATED 9/15/00 - IN RE MOTION FOR CONTINUANCE - GRANTED - BY GEORGE E HOFFER PJ - COPIES MAILED 9/15/00 ------------------------------------------------------------------- AWARD OF ARBITRATORS - IN FAVOR OF THE PLAINTIFF AND AGAINST THE DEFENDANT IN THE AMOUNT OF S1950.00 PLUS INTEREST AT THE LEGAL RATE FROM AUGUST 1, 1998 PARTIES TO BEAR THEIR OWN COSTS NOTICE MAILED BILLED COUNTY FOR ARBITRATORS 12/06/00 ------------------------------------------------------------------- ~~~:~2::: ~~~t~~~~~~~~~~~r:~~~6~~~~~~~~~-;~;~~;~~~=~B;~D~~~~~~c-- "I '"\ ./ DETHLEFS ESQ ~t ------------------------------------------------------------------- 12/0~~~~~~~?~~~~~~_~~_~~~~_~~~~~_~~_~~~_~~~~~_~_~~_~~~~~~~_~__ 1/21/2000 2/02/2000 2/08/2000 q~(, 2/17/2000 6/29/2000 7/18/2000 9/12/2000 9/15/2000 ~ 10/20/2000 Jf 11/09/2001 1b 11/16/2001 ~\ PRAECIPE FOR LISTING CASE FOR TRIAL - BY RICHARD S FRIEDMAN ESQ FOR PLFF ------------------------------------------------------------------- ORDER OF COURT - DATED 11/15/01 - A PRETRIAL CONFERENCE IN THE ABOVE MATTER IS SCHEDULED FOR 1/10/02 AT 1:30 PM IN CHAMBERS OF UNDERSIGNED JUDGE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA = cr,j 1liIiiiK,"_ - b o LCL INCOME PROPERTIES, L.P.II, d.b.a. BUNKER ASSOCIATES : IN TIm COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff v. : NO. 2000-395 Civil Term HARVEY HOFFMAN : CIVIL ACTION - LAW Defendant ****************************************************************************** PRAECIPE FOR ENTRY OF JUDGMENT Kindly enter judgment in the above captioned case, pursuant to the Court's orders dated ~ dc,' -+- ~ "" ~ -.J 0--" ()-+ February 28, 2002 and May 17, 2002. ~ ""- J ~ .r ~ , :-t-+-- - Ii (-1 o ~ f~ ~, ~ d-~y ~ ~ f!o.-,,,-ilff-J po s;(- (Vl"*' V'Z Ii:. . Respectfully submitted, P,C. . King, Esquir 60 . Second Street Penthouse Suite P.O. Box 984 Harrisburg, P A 17108 (717) 236-8000 Attorney for Plaintiff 1:18 - . - c LCL INCOME PROPERTIES, L.P.II, d.b.a. BUNKER ASSOCIATES Plaintiff v. HARVEY HOFFMAN Defendant . I _ ~ .,.._ 'HI&:,,, o : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO, 2000-395 Civil Term : CIVIL ACTION - LAW ****************************************************************************** CERTIFICATE OF SERVICE I, John F, King, Esquire, hereby certify that on July 24, 2002, I served a copy of the within Praecipe for Entry of Judgment by depositing same in the United States Mail, first class, postage prepaid, addressed as follows: Darrel C. Dethlefs, Esquire, 3805 Market St., PO Box 368, Camp Hill, P A 170 II, Attorney for Defe 1~1 . ' .r..,- ""-",-~.-,,-~~.".. ~ ^' ~-- -. ~,~. "-"', """',;' _'''-Y,,'''.>h e_ .'-"'1 ,-~ .r..........__._ ,~" 0:>, ,,' _"'ifti'III~ , ~, ,..' ,~' , 1ti.1 o ~ ~ ~ J ~f ~ t:S , - t iA- '" - ..j }- -G ..j ..J , g ~ " -€: o C :? \J(X] mrn z"., ?..:f:~ 0') ,-, ~f.~~ :PC ~g~ ,. =J -.; """', - o N L <= r- !') ,'0 --I o -" ~-~~~ -'~TfTl ~:JO .?(l, S~~ c5rn --t '1> :':IJ -< ~ CJ ::"J; r.- . - -- --j ,,-. " ~. , . , .-'-~- ','--,.--"- ..-- -~--,,-;----" "--,",,', - -~ '- ,-_-~-'" < "---, J;- ~., - 'C-"-i'., Ij i' LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 Civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW PLAINTIFF'S BRIEF IN SUPPORT OF ITS MOTION FOR POST-TRIAL RELIEF FACTUAL HISTORY Plaintiff is the owner of the apartment complex known as Bunker Hill. Defendant is the owner of townhouses contiguous thereto. Approximately four (4) years ago, during a service call to Plaintiff's sewage pumping station, it was observed that a number of townhouses owned by Defendant were hooked up to Plaintiff's sewage pumping station, a fact which never had previously been known by Plaintiff. Plaintiff, through counsel, notified Defendant of his encroachment and requested reimbursement for Defendant's proportionate share of the cost of maintaining pumping station only, which it computed on a proportionate basis to be $75.00 per month, or $900.00 per year. The Defendant refused to make any contribution to the expenses of maintaining the sewage pumping station, as a result of which Plaintiff filed the instant action. '_O'>~'':-'c,__i'__~'' _.,::,:,_,.,.:.;_" 'r.ok;~,'j-' ,-v,',. -,,;1-_,;._ _._t. , ""'iJ ~j I i , Defendant attempted to introduce an exhibit purporting to be an I.: 1" Iii ',',' i' I',',' ~ II ;1 I", ,: , Ii f~ ':1 This matter was finally heard before a Board of Arbitrators in Cumberland County, and at the Arbitration the agreement between the predecessors in title of the parties. The agreement had never been pleaded as an affirmative defense in New At Pre-Trial, Plaintiff, through counsel, advised the :1 ;1 II II ~~ Ii hi m !~ II II ,I ij !~ ,I II II !I II !:I 11 II , 1,1 il I , Matter. No other defense was offered, and judgment therefore was entered in favor of Plaintiff, and which Defendant appealed. Defendant attempted to correct the pleadings by filing a Petition and Rule to Show Cause why Defendant should not be permitted to amend his New Matter. Defendant did nothing to enforce his right to amend his pleadings. Court that it would object to any testimony regarding the purported agreement because an Amended pleading had not been filed. The Plaintiff could have awaited trial and entered its objection at that time, but Plaintiff felt it was obligated to advise the Court of the outstanding deficiency in the pleadings. Defendant, therefore, advised the Court that it would file to make the Rule Absolute, which would give Defendant the right to amend his New Matter to the complaint, and, in fact, Defendant did file to make the rule absolute on or about February 21, 2002. ,. -'. ~"'--~ '~'''''' In a conference in chambers on February 27, 2002 immediately prior to trial, the learned Trial Judge signed the Rule permitting Defendant to amend his New Matter to the Complaint. The trial was subsequently held, and the matter was taken under advisement by the learned Trial Judge. From and after February 27, 2002 until the present time, Defendant has failed to file an Amended Answer to the Complaint, even in spite of the request to do so by counsel for Plaintiff dated March 19, 2002, a copy of which is attached, which filing would have made the pleadings complete. ARGUMENT ARGUMENT 1: This Honorable Court allowed the admission of Defendant's Exhibit "3", which is a certain document entitled "Agreement and Release" dated May 30, 1972. The Defendant presented this document as an affirmative defense to the Plaintiff's cause of action. The Pennsylvania Rules of civil Procedure state that, "A party waives all defenses and objections which are not presented either by preliminary objection, answer or reply, except a defense which is not required to be pleaded under Rule 1030(b),. ..". [Pa. R.C.P. Rule 1032]. Rule 1030(b) speaks to the affirmative defenses of assumption of the risk, comparative negligence, and contributory negligence, which need not be pleaded. [See Pa. R.C.P. Rule 1030(b)]. Pennsylvania Rule of civil Procedure 1030(a) states that, "Except as provided . "O~_" " ". _--'~ -C' .' ,,,,. .'-" ,/_,",o,",',~,"_"'".,,,",..__, ,,' 'e. ,-CO..... --,-- -T.; ~_ ".' ':ii by subdivision (b), all affirmative defenses, including but not limited to the defenses of...release...shall be pleaded in a responsive pleading under the heading "New Matter"". [See Pa. R.C.P. Rule 1030(a)]. This Honorable Court issued an Order dated February 27, 2002, granting the Defendant permission to amend his defense as Ii II I, Ii II II to include the defense of release. Despite this Honorable Court's Order, the Defendant did not amend his Answer with New Matter as to include the defense of release. The Defendant did not file any pleadings subsequent to this Honorable Court's Order, nor did the Defendant seek to verbally amend his pleadings at the non-jury trial which took place on February 27, 2002. In addition, the Defendant, subsequent to the trial, has not filed any additional pleadings in spite of Plaintiff's request of March 19, 2002. It is respectfully submitted that a party's proof must be consistent with his pleadings [See willinaer v. Mercv Catholic Medical Center, 241 Pa. super. 456, 464, 362 A.2d 280, 284 (1976), affirmed 482 Pa. 441, 393 A.2d 1188 (1978)], and that a Defendant may prove only those defenses which have been pleaded. [See Ochs v. Revnolds, 155 Pa. Super. 469, 472, 38 A.2d 728, 729 (1944)] . Since the Defendant did not file an Amended Answer to the Complaint, the pleadings are closed without any averment of the purported agreement/release. [see Order of J. 01er dated February 27, 2002]. It is, therefore, respectfully submitted that this Honorable Court erred in allowing the admission of the '",,- '-;"'".:":"', -" ",.,'-c,<' [,.,."-~"' -, 1;".'- ,,/ said document over the objection of Plaintiff's counsel. Transcript of Proceedings, p. 35 - 36]. [See ARGUMENT 2: Th~ Defendant submitted a certain document entitled "Agreement and Release" dated May 30, 1972 as a writing relating to real prop~rty situate in the Commonwealth of Pennsylvania, which did grant, bargain, sell, or convey rights or privileges of a permanent nature pertaining to the real property. Pennsylvania law requires as follows: "AII agreements in writing relating to real property situate in this Commonwealth by the terms whereof the parties executing the same do grant, bargain, sell, or convey any rights o~ privileges of a permanent nature pertaining to such real property, or do release the grantee or vendee thereunder against damages which may be inflicted upon such real property at some future time, shall be acknowledged according to law by the parties thereto, or proved in the manner provided by law, and shall be recorded in the office for the recordina of deeds in the county or cOl1nties wherein such real orooerty is situate." [21 Pa. C.S.A. S 356] (emphasis added). This document clearly is intended by the Defendant to convey rights or privileges of a permanent nature pertaining to the real property in question, and also has been presented by the Defendant so as to release the grantee and successors thereunder against damages, specifically those damages which have been claimed by the Plaintiff in this matter. It is respectfully submitted that the Court erred in ,,_C_~''''': ",:,c- .. __~",,'. ::- - _,v~~ : ',I allowing the admission of this document designated as Defendant's Exhibit "3" since the document was not properly recorded as required by Pennsylvania law. ARGUMENT 3: It is respectfully submitted that the Court erred in admitting the document identified as Defendant's Exhibit "3", namely the "Agreement and Release", over the objection of Plaintiff's legal counsel at trial. It is respectfully submitted that the document is immaterial and irrelevant to the case before the Court. Initially, it must be noted that the purported release, by its own language, is limited to the parties that executed it, namely Arthur R. Rupley and Mildred Gates Rupley, his wife, along with Elston L. Wickenheiser and L. Patricia Wickenheiser, his wife, their heirs, executors, administrators and assigns. The document in no way releases or discharges the successors in title to either of the parties. It is respectfully submitted that in the case before this Court, both parties are successors in title, LCL having bought the property in 1986, some fourteen (14) years after the execution of the purported release, [See Transcript of Proceedings, p. 14 - 15], and the Defendant, Hoffman, having purchased the property in question in 1996. [See Transcript of Proceedings, p. 22]. It is, therefore, respectfully submitted that Defendant's Exhibit "3" in no way relates to the case at issue before the Court. ~, .'_""0<"" .-{_ >~::-t- - I :1 It is respectfully submitted that the document is immaterial and irrelevant to the case before the Court for a second reason. Defendant's Exhibit "3", by its own language, is limited to a remise, release, quitclaim and discharge from all claims, demands, actions, causes of actions, suits, debts and contracts, especially all claims regarding the matters mentioned in the document, which against the other party each may have or now has from the beqinninq of the world to the date of these presents. (emphasis added). [See Defendant's Exhibit "3"]. This date referred to in Defendant's Exhibit "3" is May 30, 1972. It is, therefore, respectfully submitted that even should the fact finder review Defendant's Exhibit "3", it in no way impacts upon the case before this Court, which accrues some twenty-four (24) years after the natural terminal date of the Defendant's Exhibit "3" (Agreement and Release). CONCLUSION The Plaintiff's Argument as contained herein clearly establishes that the Defendant's defense of release was not properly pleaded, was never properly recorded, and was not material and/or relevant to the case before the Court. Since no other defense was asserted at trial, and since Plaintiff clearly .l -' ',; ,,,"~,'~",-';'i'" c:-. '';;;',>,:~;:c' ;,-" "o,:L'-. established a cause of action for unjust enrichment and proved its damages, judgment should be reversed and entered in favor of the Plaintiff for the remedies sought. Respectfully submitted, Date: -OfA 'jJ~/dcfG- FRIEDMAN & jG, P.C. Richard s. '~man, 600 N. Second street Penthouse suite P.O. Box 984 Harrisburg, PA 17108 (717) 236-8000 Esquire fjp:pleadings\bhill.bri FRIEDMAN & KING. Pc. ATTORNEYS Kr LAW 600 N. SECOND ST. FIFTH FLOOR P.O. Box 984 HARRISBURG, PENNSYLVANIA 17108 (717) 236-8000 TELECOPIER No. (717) 236-8080 RICHARD S. FRIEDMAN JOHN F. KING March 19, 2002 Darrell C. Dethlefs, 3805 Market st. P. O. Box 368 Camp Hill, PA 17001 Esquire In re: LCL Income properties, L.P. II, tjdjbja Bunker Associates v. Harvey Hoffman No. 2000-395 civil Term Dear Darrell: As you are aware, this office filed a Motion for Post- Trial Relief in the above-captioned matter. In order to properly pursue this Motion, kindly file your Amended Answer within the time prescribed by Rules of Court. Very truly yours, Richard S. Friedman RSFjbp:corresaf\dethlefs.ltr cc: Elliot Leibowitz The Honorable J. Wesley Oler, Jr. -I;i~ '.;',',',:I','-',>,_",-i-L"_;"'2 '.l;:- -:, ' ."'::-:-_;' {r~- - '-, '<:1,-'_ ",,'Kj,.,:: >;:;';_;->_1' _' ''-: ,J- -- -- ,- ',' ;,--:~iF::: ,- LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Richard S. Friedman, Esquire, hereby certify that on April 8, 2002, I served a copy of the within Plaintiff's Brief in Support of its Motion for Post-Trial Relief, by depositing same in the United States Mail, first class, postage prepaid, addressed as follows: Darrell C. Dethlefs, Esquire 3805 Market st. P. O. Box 368 Camp Hill, PA 17001 ,/" /' FRIEDMAN & KING;f'P.C. S Friedman, Esquire 600 N Second Street Pent'ouse suite P. o. Box 984 Harrisburg, PA 17108 (717) 236-8000 " ~" 0, .\ " " , ~ LAW OFFICE OF DARRELL C. DETHLEFS By: Darrell C. Dethlefs, Esquire Attorney Identification No. 58805 3805 Market Street Camp Hill, P A I70 II (717) 975-9446 Attorney for Defendant, Harvey Hoffinan LCL INCOME PROPERTIES, L.P. II, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. : NO. 2000-395 Civil Term HARVEY HOFFMAN, Defendant TRIAL MEMORANDUM A. May the Defendant amend the Answer to include the defense of Release? (Proposed answer in the affirmative.) At the mbilIation, the parties became aware of an alleged Agreement and Release pertaining to the issue in this case. A copy of the original Agreement and Release is attached hereto as Exhibit" A". At the trial in this matter, the Defendant intends to introduce the original Agreement and Release and further will have Mr. Wickenhouser, a signatory to the Agreement and Release, testify. Defendant anticipates that the Plaintiff will object to the introduction of this Release as Release was not originally plead as a defense in this case. On, November 30, 2000, the Defendant filed a Motion with the Court requesting permission to amend the Answer and New Matter. The Court signed and circu1ated an Order dated December II, 200 I, issuing a Rule to Show Cause on the Plaintiff why the Defendant should not be permitted to amend the Answer and New Matter. The Rule was returnable fifteen (15) days after service. The Plaintiff never filed an Answer to the Rille to Show Cause, A second Motion to Amend was filed, On February 4, 2002, the Court issued a Rule on the Plaintiff to Show Cause why the Answer should not be amended. No reply was filed by the Plaintiff. Thus, the Pennsylvania Rilles of Civil Procedure Pa RC.P, 1033 provides for the libera1 granting of Amendments by the trial Court. Rule 1033 States: FEB 2 6 2002 - " " RULE 1033. Amendment A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences, which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to cooform the pleading to the evidence offered or admitted. Pa.R.Civ,P. 1033 Defendant has now filed a Motion to make Rule issued on February 4, 2002, absolute. In Caroitella v. Consolidated Rail Corooration 368 Fa. Super 153 533 A.2d 762 (1987), the Court pennitted the Defendant to make a late amendment to plead governmental immunity as an additional defense, The Court stated, "It is well settled that amendment to pleadings is a matter of judicial discretion. It is also settled that such amendments should be allowed at any stage of the advesary process to secure a decision of the case on its merits, unless surprise or prejudice to the other party would result or the proposed amendment is against a positive rule of law." Caroitella. 368 Pa Super at 156. In the case before the Court, the Plaintiff will not be unduly prejudiced or unfairly surprised by the defense request to assert the additional defense of Release. plaintiff was aware of the potential defense as early as November 30, 2000. B. Is the Release attached hereto as Exhibit" A" required to be recorded in order for successors in interest to rely upon it? (Proposed answer in the negative.) Page two, paragraph three of the Release in question states, "In pursuance of the agreement of the parties, each of the parties hereto does hereby remise, release, quitclaim and forever discharge the other, his heirs, executors, administrators and assi",,. from all claims. demands, actions, causes of action, suits, debts, and contracts, especially all claims regarding the matters above-mentioned, which against the other party each may have or now has from the beginning of the world to the date of these presents." (Emphasis Added,) On page one of the Release, the parties state, "WHEREAS, sewage emanating from dwelling units that have been constructed by WICKENHElSER on the land denoted on the attached plan as containing 2.47 acres has been piped to a pumping station owned and operated by RUPLEY on land owned by RUPLEY." I At trial, the Defendant will present testimony that the lands and the pumping station described in the Release are the same lands and pumping station at issue in the present proceeding before this Court. Releases are binding upon successors in interest. As this Court knows, there is no requirement in Pennsylvania that a release be recorded for it to be enforceable. In fact, the majority of general releases signed between parties in this Commonwealth are not recorded in any Court. Releases are not generally recorded because there is no requirement that the release be recorded for it to be enforceable, It is clear that the release, which is attached hereto as Exhibit" A" is a general Release, and since there is no requirement for an Agreement and release to be recorded for it to be enforceable, The Plaintiff is barred from prevailing in this case, because of the signing of the general release. C. What is the statute of limitations on a cause of action for unjust enrichment? (Proposed answer is 4 Years.) A cause of action for unjust enrichment is an action based upon a contract implied in law. Tonkin v, Palmer 26 D & C 3rd 763 (1983). In Tonkin. the trial Court stated that the cause of action for unjust enrichment is governed by the four (4) year statute of limitations, contained in 42 Pa. C.S.A. ~ 5524 (4). In the matter before the Court, the evidence presented at trial will be that the Plaintiff; LCL Income Property, purchased the property, including the pumping station on December 17, 1986. The Complaint in this case was not filed WltiI on or about January 20, 2000. At trial, the Defendant will argue that the Statute of Limitations has expired because the Plaintiff knew or through the exercise of due diligence should have known that the Defendant's townhouses were attached to the pumping station wore than four years before the filing of the Complaint in this action. Any argument by the Plaintiff that he operated this pumping from December of 1986 trough 2000 (14 years) withont knowing that the townhouses were attached to the pumping station would be a significant stretch. A copy of the deed is attached hereto and marlred as Exhibit "B". Respectfully Submitted, ~n ~1fiidsref:j /0," 'L . Attorney Identification No. 58851 3805 Market Street Camp Hill, P A 17011 (717) 975-9446 , ,I '1.'-1 " LAW OFFICE OF DARRELL C. DETHLEFS By: Darrell C. Dethlefs, Esquire Attorney Identification No. 58805 3805 Market Street Camp Hill, PA 17011 (717) 975-9446 Attorney for Defendant, Harvey Hoffinan LCL INCOME PROPERTIES, L.P. II, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW y, : NO. 2000-395 Civil Term HARVEY HOFFMAN, Defendant CERTIFICATE OF SERVICE I, Darrell C. Dethlefs, Esquire, hereby certify that on this ~"'"day of tcJ-'7 ,2002, served a true and correct copy of tile Defendant's Trial Memorandum, upon the party listed below, via First Class mail, postage prepaid and via facsimile. Attorneys for the Plairrtiff, LeL Income Properties, L.P., II: Richard S. Friedman, Esquire 600 North Second Street Penthouse Suite P.O. Box 984 Harrisburg, P A 17108 ~\. ~$ /~:&- Darrell C. Dethlefs, E' "' Attorney Identification No. 58805 3805 Market Street Camp Hill, PA 17011 (717) 975-9446 I. l: AGREEIIENT AND RELEASE THIS AGREEIIENT and mutual RELEASE is made and executed by Arthur R. Rupley and Mildred Gates Rupley, his wife, hereinafter ca11ed RUPLEY; and Elston L. Wickenheiser and L. Patricia Wickenheiser, his wife, hereinafter called WICKENHEISER. WHEREAS, RUPLEY conveyed a tract of land to WICKENHEISER by deed dated the 7th day of March, 1969, and recorded in the Curnberland County Recorder's Office in Deed Book F, Volume 23, Page 66; and WHEREAS, the parties have since had a dispute regarding said deeded premises and have agreed that a reconveyance of a portion of said tract take place, which tract is shown on the attached pIan prepared by Buchart-Horn engineers bearing Sheet No. D-679; and WHEREAS, sewage emanating from dwelling units that have been constructed by WICKENHEISER on the land denoted on the attached pIan as con- taining 2.47 acres ,has been piped to a pumping station owned and operated by RUPLEY on land owned by RUPLEY; and WHEREAS, a dispute has arisen regarding the pumping of said sewage to said pumping station of RUPLEY, and the parties hereto have agreed that said sewage emanating from said dwelling units be piped to said pumping station and pumped through said pumping station without cost to WICKEllliEISER; and WHEP~AS, various other disputes have arisen between RUPLEY and WICKENHEISER regarding an agreement between the ,parties dated April 8, 1969, relative to the construction of three twenty-four-unit apartment buildings on land of RUPLEY located in the Borough of Wormleysburg; and WHEREAS, other various and sundry disputes have arisen between the . pa"r-ties reg<:.rding their various bu~"d.~11e3s 'affairs v7hich the 'parties desire to set tIe once and for all. I" ~ "r "!~~ , ! I - ~ ~ . ~ , " [!"m!! """T'm'~!mll''lIl'1." NOW, THEREFORE, in consideration of the mutua 1 covenants of the parties hereto, intending to be legally bound hereby, it is agreed as follows: 1. WICKENHEISER agrees to convey to RUPIgy for no consideration the said /J.-9 acres, more or less, of land shown on the attached pIan. 2. RUPLEY agrees that sewage may continue to flow from the dwelling units owned by WICKENHEISER on the 2.47 acres,'more or less, of land shown on the attached pIan at no cost to WICKENHEISER. 3. In pursuance of the agreement of the parties, each of the parties hereto does hereby remise, release, quitclaim and forever discharge to the other, his heirs, executors, administrators and assigns, from all claims, demands, actions, causes of action, suits, debts and contracts, especially all claims regarding the metters above-mentioned, which against the other party each may have or now has from the beginning of the world to the date of these presents. :: '''):,;Y' the parties hereto execute these presents this jLJ~ay , 1972. /~-:C'~L. -R - iZ>--IQJ2Q~\r Arthur R. Ruplet \ '/ .,}),. "' ",(; r' 7-1 .i'dLU.L ':C:/ C( {~'7 , Mfldred Gates Rupley '~?l:i '7' /~' ;J ,/'" L :/. ..,<-,.i,~/ I; / ....,..'. /." (;~~.,i/ ',,- - ~-"- , Elston L. ckenheiser c1~~ f:i / WITNESS: /J ~ I / /1 i I ! b7A%.r'? J ~~:t! /, / // ,.' v' / -'-- j.."- ,I) " ;:. rt>.Ii.~.'nJJ/-,~~lg. ~o ) , L. Patricia Wickenheiser "~~" ,- f. , "" }"J.t)Q SAlDlS, GUIDO, snUFF & MASLAND 2109 Mukcl SI....... Cacnp Hill. I'A , ~ STEPHEN WILSON 71? 671 SaSl ~- , 01/%4/0% 0S119r;lm P. 00Z .iLA ;.:::' L r 7 . ~ !";: ;).. 3l.>OO,==- Fl~,~~'.~IU. u;, i;~_i..i)S .r'~'u;:~'~;" ~~IUI~' f;~' i Tax Parcel No. 47-16-1302-0018 THIS DEED I_f~' /~ Made tile S l18,Y of C-t.L....-l:.jlk.-a- I 1996, between ELSTON L. WICKEHHEISER and L. PATRICIA WICKENHEISER, his wife, of Wormleyoburg, Cumberlanu County, ~enn3yl- vania (-Grantors") AND HARVEY HOFrMAN Bod NANCY HOFFMAN, his wife. of Camp Ilill, Cumberland County, Pennsylvania ("Grantees") WITNESS, thAt in considoration of the sum of Seven Hundred Thousand ($700,000) Dollars in hand paid, the receipt whereof io hereby aCknowledged, And intending to be legally bound hereby, the Grantors do grant and convey to the Grantees, their heirs <1Jld assigns: ALL that certain tract or parcel of land situate in the Borough of Wormleysburg, Cumberland County, Pennsylvania, more particu. larly bounded and described as follows, to wit: BEGINNING at a stake on the westorn right of way line of Rupley Road on the 1ino <}L lando of Lhu Weal: Shure Sehoul Oiul.rict, which said point of beginning is North 14 degrees 41 minutes 42 seconds West, 254.12 feet from a Gtake on the western line of said Rupley Road on the line of lands of said West Shore School District, which said last mentioned stake is North 09 degrees 21 minutes S2 seconds West, 477.08 feet from a stake at the south- east corner ot lands now or formerly of tho West Shore School District; thence along said lands now or formerly of the West Shore School district, North 14 degrees 41 minutes 42 secondlJ West, 716.38 feet to a stake; thence by lands now or formerly of Franklin Moore, North 73 degrees 19 minutes 30 secondo East, 116.30 feet to a stake; thence further by same North, 81 degrees 51 minutes 30 seconds East, 184.30 feet to a stake; thence still by same, North 42 degrees 39 minutes 38 seconds East, 3.61 feet to a stake; thence by lands now or formerly of the Borough of Wormleysburg, South 09 degrees 58 minutes 20 seconds East, 127 feet: to a stake I thence .by lands now or formerly of Arthur R. aMK 1<14 fA:r 307 - 0;" .t .. .. IIlIS, GUIDO, snUFF ,. MASt.AND 'l'J Mork.. S'",a1 C""lIIUill.PA STEPHEN 10.11 LSON 717 671 SS31 01/24~02 0S11Spm P. ~ Rupley, South 42 degrees 32 minute. 54 seconds West, 168.84 feet to a stake; thence f~rther by 88me, South 14 degrees 41 minuteS 42 seconds East, J11.99 feet to a stake on the northern line of Yverdon Drive; thence alol1g the not"thern right of way line af Yverdon Drive in a soutnwestwardly direction by a curve to the left having a radius of 305 feet, an arc dist:ance of 119.24 feet, to a stake; thence further by same in a southwestwardly direction by a curve to the left having I! radius of 150 feet, an arc diotance of 124.18 feet to a atake on the we9tern riqht of way line of Rupley Road, the ~oint and place of DEGINHING. CONTAINING 2.66 acres, more or less. The aforesaid description is made in accordance with a sur'ley mada by William Po. Sees, Jr., Consulting Engineer, on Sept~mber 25, 1960. . BEING the oeme premises which Arthur R. Rupley and Mildred Gatos Rupley, his wife, by deed datp.d March 7, 1969, and recorded in Deed Dook MF, M Vol. 23, Page 66, Cumberland County records, granted and conveyed unto Elston L. Wickenheiser and L. Patricia W.ic!tenhelser, his wife, the Grantors herein. AND the GrantorR will warrant specially the property hereby conveyed. IX WITNESS WHEREOF, the Grantors have hereunto set their hands and seals tho day and year first nbove wcitten. WITNE:SS: ?~t);dj2j/~ ~E19ton L. tckenh~i3er (SEAL) t ).dv ' f\ i -~f--- d1 . " ' - 11I(;j<,_,~ /lh k"l'''.A(".,,~' L. patricia ~ickenheiser (SEAL) iOUK Hit PAGE 308 I .'-- ..J I .J -- 4" \. ." STEPHEN I-lILSON 717 en 56S1 01/24/0Z 0S119pm P. 004 COMMONWEALTH OF PENNSYLVANIA) ss COUNTY OF CUMBERLAND) On this, the \ S.t.h day of 'f-\.uLH,..st- , 1996, before me, the undersignea-oIfic~r, p6rsooally appeared ELSTON L.' aICKEHHEtSER and L. PATRICIA WICKEHUBISER, his wife known to me (or adtisfl'!octorily proven) to be the pcraona whoae names arc Gub- ':lcribed to tho within Lnutrument, .J.l\d ..lcltnowlcdgctt t.hat they executed the /Jame for the pu:rpoeea therein cont..:lined. IN WITNESS WHEREOF, I hereunto oet. my hand ~.~\ltgi~~' s8al. . ;:' ....~...........~~ ,'/yr :t.~fo.~'~!\'1,{S'i. ':.-'0";1 , 1-, ~,JlJ!d~'.\l4'1(~'.~JI , ary Public ;:.:,~., .~~dO~.~. A~~!!~ .....{f..~~Yrn: '/!:.r r'-~--b.-,l.'~' _U~ 't.\~\~.},''''':i~J?''''~,'~ }:,,; 'IlNwl..UIIlll:_.......... .r.o;.., '\.....~",.'....".....r.$ . ,- " /r~'''''''' Xc' ." I":::'~;~~~ ititr!.....:i.i.~.\;~;.~;' , ...............,.Ioc.....IlIUllfoNwla ' I UEREBY CER~IFY that ehe precise addrcss at the Grantees is: to PIIl""',,,,) flu,,) (',\"") ,(ill i'#, I'll' II I I I COMMONWEAL'rH 0[0' COUNTY OF --I , .....1/ ~},J',:.}1i 1/'"'-' PENNSYLVANIA) :SS CUMBERLAND) i ,I SAIDIS, Gumo, snUFF & MASLAND lllWM&IIldSllVCl Cna, ll"~ J'A Recorded an this 1<) day of ~')J the R~lder's Office of the aaid County in Record Page . hand and the seal of the said Office, the I 1996, in Book EI-. v;IZ.b..u7' if-? 9i..e. - R~corde :au! 144 flCE 30!) ,<~ , STEF'HEN WILSON . . ... ," 717 871 5631 -~. > 01/24/02 0311s=m P. 006 CIlKbl!rhrlijClJllnbR!l:Qr.1erl1tDel!'1<:, lnsttllunt Filin~ Rl!Celptl ~mt lnstr~ 1996~Q2J600 11/1511"6 15:37:"8 R.",~" Mr<R!llCDElIUF5/lmMAH CM~I Z 1m ~ED -.lIT nEED. rifT STATE 1[5T SlmRE IlIIRt!LEYSnlJRGSMO l(ED-MH iiled:Dlm CheckM1545 Olt;o::yll tS46 Ilted:qt~ lllt-l1 Retl!i'/l'd....... 11.50 .50 1000.M 3S00.00 mo.oo 11.50 11,0:z:i.OO S.511 '3.~OO.OO 13,500.00 m,rm.50 IUUK 144 P~CE 310 -,' .- ~- o .-"-, ~ ~--I "[)~ .. LCLlNCOME PROPERTIES, L.P. II, COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff No, 2000 - 395 Civil Term v. HARVEY HOFFMAN, Defendant BRIEF OF THE DEFENDANT HARVEY HOFFMAN IN OPPOSITION TO THE PLAINTIFF'S POST - TRIAL MOTION I. STATEMENT OF FACTS The Plaintiff filed a complaint against the Defendant alleging that he "has continuously, improperly and illegally utilized the sewage pumping station of Plaintiff since Defendant purchased the townhouses contiguous to Plaintiff." (Plaintiff's Complaint, Paragraph 3). The Plaintiff further alleged that the Defendant was being unjustly enriched by utilizing the pumping station and requested contribution from the Defendant for maintaining the pumping station. The Defendant denied the allegations and the case went to trial on February 27, 2002. The Honorable J. Wesley Oler, Jr. found in favor of the Defendant and against the Plaintiff on February 28, 2002. On or about March 7, 2002, the Plaintiff filed a Motion for Post - Trial Relief. This is the Defendant's Brief in Opposition to that Motion. II. QUESTION INVOLVED SHOULD THE PLAINTIFF'S POST - TRIAL MOTION BE GRANTED? III. ARGUMENT The Plaintiff in its' Motion for Post - Trial Relief requests that the Court enter judgment in favor of the Plaintiff and against the Defendant or in the alternative order a new trial. The Plaintiff alleges Your Honorable Court erred by admitting into evidence l -'~'- ....... =,~. -I. C' ~; . a certain Agreement and Release, dated May 30, 1972. The Defendant presented the testimony of Elston L. Wickenheiser in regard to the issue of the agreement and release. Mr. Wickenheiser purchased the property in question in 1969 from Arthur R. Rupley and Mildred Gates Rupley. (Defendant's Exhibit 1). This Agreement and Release is dated May 30, 1972 and states in relevant part: WHEREAS, sewage emanating from dwelling units that have been constructed by WICKENHEISER on the land denoted on the attached plan as containing 2.47 acres has been piped to a pumping station owned and operated by RUPLEY on the land owned by RUPLEY; and WHEREAS, a dispute has arisen regarding the pumping of said sewage to said pumping station of RUPLEY, and the parties hereto have agreed that said sewage emanating from said dwelling units be piped to said pumping station and pumped through said pumping station without cost to WICKENHEISER; and 2, RUPLEY agrees that sewage may continue to flow from the dwelling units owned by WICKENHEISER on the 2.47 acres, more or less, of land shown on the attached plan at no cost to WICKENHEISER. 3. In pursuance of the agreement of the parties, each of the parties does hereby remise, release, quitclaim and forever discharge to the other, his heirs, executors, administrators and assigns, from all claims, demands, actions, causes of actions, suits, debts and contracts, especially all claims regarding the matters above - mentioned, which against the other party each may have or now has from the beginning of the world to the date of these presents. (Defendant's Exhibit 2). Mr. Wickenheiser testified that he never made payments to anyone for use of the pumping station. (Trial Transcript p. 22). The Wickenheisers sold the property to the Defendant in 1996. (Defendant's Exhibit 3). LCL purchased the property with an address of 402 Yverdon Drive in 1986. (Trial Transcript p. 15). At some time after 1986, Mr. Wlckenheiser was contacted by a lawyer representing LCL. Mr. Wickenheiser indicated that he was asked if he had an agreement with Rupley or what he was paying for sewer treatment. (Trial Transcript ......... .. p.24). Mr. Wickenheiser testified that he sent a copy of the agreement to the attorney who contacted him. (Trial Transcript p.24). Mr. Wickenheiser testified that after he provided the agreement to the attorney for LCL that he never heard from him. (Trial Transcript p.25). Mr. Wickenheiser testified that he did not make any payments to LCL nor Bunker Hill. (Trial Transcript p. 25). The Plaintiff asserts in its Motion for Post - Trial Relief that the Agreement and Release is "irrelevant and immaterial and not being binding on successors in title by its very terms." Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Pa.R.E. 401 The Agreement and Release is relevant and material because the Agreement and Release is a general release which is binding upon successors in interest. The Agreement and Release in page two, paragraph three states "[i]n pursuance of the agreement of the parties, each of the parties hereto does hereby remise, release, quitclaim and forever discharge the other, his heirs, executors, administrators and assigns from all claims, demands, actions, causes of action, suits, debts, and contracts, especially all claims regarding the matters above - mentioned, which against the other party each may have or now has from the beginning of the world to the date of these presents." (emphasis added). The Plaintiff also asserts that the Agreement and Release is irrelevant and immaterial "since the Release by its very terms was limited to claims from the beginning of the world to the date of these presents". This argument is not persuasive because the Agreement and Release is a general release which is binding upon successors in interest. The Plaintiff finally asserts that the Agreement and Release is irrelevant and immaterial "since the Defendant could not have relied on the Release because, as .",or.-, ~ '~~ - presented at trial, the Defendant did not know of its existence at the time he purchased the property at issue at trial." The release in question is a general release and there is no requirement in Pennsylvania that a release be recorded for it to be enforceable. Therefore, there is no requirement that the Defendant has to have knowledge of the release. The Agreement and Release is a bar to the Plaintiff prevailing in this case. The lands and the pumping station described in the Release are the same lands and pumping station at issue. It is clear that the Release is a general release. The Plaintiff brought a cause of action for unjust enrichment. A cause of action for unjust enrichment is a four year statute of limitations. Tonkin v. Palmer. 26 D&C 3rd 763 (1983). The Plaintiff purchased the property in 1986. The complaint in this case was not filed until on or about January 20, 2000. The Plaintiff should have known through the exercise of due diligence that the Defendant's townhouses were attached to the pumping station more than four years before the filing of the complaint in this action. The Plaintiff presented the testimony of Sherry Hockley who is the Regional Manager for LCL Management and was the Property Manager for Bunker Hill Apartments. Ms. Hockley testified about discovering meters that were not for the apartments. (Trial Transcript p.10). The meters in question certainly pre - existed the filing of the complaint and there discovery four years ago since the pumping station has been there since at least 1972. Also, Mr. Wickenheiser testified that at some time after 1986 he was contacted by a lawyer representing LCL. Mr. Wickenheiser indicated that he was asked if he had an agreement with Rupley or what he was paying for sewer treatment. (Trial Transcript p.24). Mr. Wickenheiser testified that he sent a copy of the agreement to the attorney who contacted him. (Trial Transcript p.24). Mr. Wickenheiser testified that after he provided the agreement to the attorney for LCL that he never heard from him. (Trial ., ~'. 1- "' Transcript p.25). Mr. Wickenheiser testified that he did not make any payments to LCL nor Bunker Hill. (Trial Transcript p, 25). Therefore, the Statute of Limitations has expired because the Plaintiff knew or through the exercise of due diligence should have known that the Defendant's townhouses were attached to the pumping station more than four years before the filing of the Complaint. IV. CONCLUSION Your Honorable Court should deny the Plaintiff's Motion for Post - Trial Relief, ~ C. Yl..;d;J ItdC Darrell C. Dethl~ttuk~ 3805 Market Street P.O. Box 368 Camp Hill, PA 17001 (717) 975 - 9446 Attyld. No. 58805 - :'~, ", , ,C ~i, " !n'f~' ., rrii ~~. :'~~~. ~~';. ':{ ,'~:~'4 :~:;/ 't~ ':~~ ~'lC; i':r .;,:'~.~,;:;,,~,~, i'," ",'{" -~" " '1 ~\':J; 11'/ T~ ~;;/ 100 ~'; -'"' AGREEHENT AND RELEASE THIS AGP~E~lliNT and mutual P~LEASE is made and executed by Arthur R. Rupley and Mildred Gates Rupley, his wife, hereinafter called RUPLEY; and Elston L. ,:~ ~ f :4 i) 'i) , " j 'j} Wickenheiser and L. Patricia lVickenheiser, his wife, hereinaft ,r called WICKENHEISER. :\~ WHEREAS, RUPLEYconveyeJ a tract of land to WICKENHEISER by deed dated the 7th day of, March, 1969, and recorded in the CuIDberland County Recorder's Office in Deed Book F, Volume 23, Page 66; and ~ j 1 I l .l l I i i I i ! '1 I , 1 I 1 i I , l l I " "I I 1 1 "l ' , ~!,' :lr :1':; !j I WHEREAS, the parties have since had a dispute regarding said deeded premises and have agreed that a reconveyance of a portion of said tract take place, which tract is shown on the attached pIan prepared by Buchart-Horn engineers bearing Sheet No. D-679; and WHEREAS, sewage emanating from dwelling units that have been constructed by WICKENHEISER on the land denoted on the attached pIan as con- taining 2.47 aereshas been piped to 8 pumping station owned and operated by RliPLEY on land owned by RUPLEY; and WHEREAS, a dispute has arisen regarding the pvmping of said sewag" to said pumping station of RUPLEY, and the parties hereto have agreed tha' said sewage emanating from said dwelling units be piped to said pumping station and pumped ,through said pumping station without cost to WICKENHEISER; and WHEREAS. various other disputes haVe arisen between RUPLEY and ~. . WICKENHEISER regarding an agreement between the ,parties ,dated April 8,1969. relative to the construction of ,three twenty-four-unit apartment ,buildings on land of RUPLEY located in the B0rough of Wormleysburg; and WHEREAS, other various and sundry disputes have arisen between the .., parties ,reg~_rding their various business affairs which the parties desire to settle once and for all. 1, 1 , j ! DEFENDANT'S EXHIBIT ') ~ 1..1 (0 r J'7l-L ~ - NOW, THEREFORE, in consideration of the mutual covenants of the parties hereto, intending to be legally bound hereby, it is agreed as fo11ows: 1. WICKENHEISER agrees to convey to RUPLEY for no consideration the said ~9 acres, more or less, of land shrn.u on the attached plan. 2. RUPLEY agrees that sewage may continue to flow from the dwelling units owned by WICKEI'flEISER on the 2.47 acres, ' more or less, of land shown on the attached plan at no cost to \HCKENHEISER. 3. In pursuance of the agreement of the parties, each of the parties hereto does hereby remise, release, quitclaim and forever discharge to the other, his heirs, executors, administrators and assigns, from all claims, demands, actions, causes of action, suits, debts and contracts, especially all claims regarding the matters above-mentioned, which against the other party each may have or now has from, the beginning of the world to the date of these presents. :: ""s::;r' ~ the parties hereto execute these presents this 3LI7iaay , 1972. WITNESS: l~ / I ' V~~ 1 Gdy j/ I' /CL~L-K -~_61~0-.\r Arthur R. Ruplet' \ v} I ,(> A- 1--.... ..-1 J - . /, .,......,,? C[ (!"c. (1 ' /" /,,(.<,L, :7 / }li11dred Gates Rupley -, " .....-..., ~J.L "L ~/ I '/ ~~~}~< ~-~ Elston L. c enheiser (1~0'-L-1 -) ----J / I -' ^- t, hi1..~:~, JiA:L~l~ _h ) L. Patricia Wickenheiser . 'd)~ -3 r ~2.'" ,~.,- '. "L .'. " .....-.. -~\ ~ ~;..:;><;. "--, ~~ in 'Ih/>>ear~ . ., MAD}; THE'1~ da" of 'J1t~ of our Lord OfudhOU$lJnd nine hundred sixty-nine (l969) BETWEEN ARTHURR. RUPLEY, and MILDRED GATES RUPLEY, his wife, of Alexandria, Virginia, hereinafter called the' I' 'j !-, ; t i L I ! ' Gmntor s. and ELSTON L. WICKENHEISER and L. PATRICIA WICKENHEISER, his wife, of.theBorough of Wormleysburg, cou~~ of 'Cumberland and State of Pennsylvania, hereinafter called the' . '~ i "j 1 , I 1:111 i: : V Grantee s: WITNESSE,TH, that in COfI8i4eTlltion of Two Thousand Five Hundred ($2,500.(,0) ------------------------------------------------------------ Dol~N, in hand paid, the receipt whereof is hereby acktwwledged, the said gmfttors .d(j hereby gmnt and convey to the said gmfttees , ALL that certain piece, parcel or tract of land situate in the Borough of Wormleysburg, County .of Cumberland and State of Pennsylvania, more particularly bounded and described as follows: BEGINNING'at a stake on th~ western right-of-way line of Rupley Road on the line of lands of the West Shore School District, which said point of beginning is North fourteen (14) degrees forty- one (41) minutes fo~ty-twq (42) seconds West two hundred fifty-four and twelve one-hundredths (254.12) feet from a stake on the western line of said Rupley Road on the line of lands of sa~d West Shore School District, which said' last mentioned stake is North nine (9) degr~es twenty-one (21) minutes fifty-two (52) minutes West four hundred seventy-seven and eight one-hundredths (477.08) feet from a stake at the southeast corner of lands conveyed by the grantors herein to the West Shore School District; thence along said lands .of the West Shore schooi District North fourteen (14) degrees forty- one (41) minutes forty-two (42) seconds West seven hundred sixteen and thirty-eight one-hundredths (716.38) feet to a stake; thence 'by lands now.or formerly of Franklin Moore North seventy-three (73) degrees nineteen (l~) minutes thirty (30) seconds East one hundred sixteen and thirty one-hundredths (116.30) feet to a stake; thence further by same North eighty-one (81) degrees fifty-one (51) minutes thirty (30) seconds East one hundred eighty-four and thirty- eight one-hundredths (184.38) fee~ to'a stake; thence still by same North forty-two (42) degrees thirty-nine '(39) minutes thirty-~ight ' (38) seconds East three and sixty-one one-hundredths (3.61) feet to a stake; thence by lands of the Borough of Worm1eysburg South nine (9) degrees fifty-eight (58) minutes twenty (20) seconds East one hundred twenty-seven (127) feet to a stake; thence by 'lands of Arthur R. Rupley South forty-two (42) degrees thirty-two (32) m~nutesfifty-f.o.ur (54) seconds West one hundred sixty-eight and e1ghty-four one-hundredths (168.84) feet to a stake; thence further by same South fourteen (14) degrees forty-one (41) rninutesforty-two (42) seconds East three hundred. eleven and ninety-nine one-hundredths (311.99) feet to a stake on the northern line of Yv~rdon Drive; thence_ along the northern right-Of-way line of Yverdon Drive in a sOllth- westwardly direction by a curve to the left having a radius of three hundred five (305) f~et an arc distance'of one hundred nineteen and twenty-fol~r one-hundredths (119.24) feet to a stake; thence further ame in a southwestwardly direction by a curve.to the left having Bee,""")'!."" c.'S c,,'r .c;.vr......~ U ~, .I I , :.1. ,. I' f l , l' ;f il' I, I l~ \L 1'[ if 'I I 'j :\ '.' '1 ; ., i ,I I DEFENDANT'S EXHIBIT ?I.,{or' ~ =, "m_ ~ """",,,- :""-, /. "',:f " ,,-i ., J :. j"' " '. ;., . r ' .. , , . .":3 '.j / ':t ',,1 , . " ':i '! ",i , j ,\ ,} '-I ,'I i .'i , -1 .J ; , , 'H ~ ". i 1 ., r I , , , -j , .1 , ~ 1 \ , I , J " ., 1 I \" I ':.... j- ., ! " . , .~, .. '. i '.~ , j ;"t I ".; ., ;', " :1 " ; ! '" J r l ,~ ::t' i- t ',' ~. ~ .~. i, . ., , . ~, ;~L J, r _'->::;1' , " f .-.. ---;'., .~ ',I, r,' . " ~I~ -, ".J '.~..'. :1 ~~ I '"! . ',~ ! I,' - :~~ ') t. " , .~ " I';, J ri! H f,'l kJ ~. If r' .~ ~. I L~~ , ;. . .. . '.. -.'.-........ a radius of one hundred fifty (150) feet an arc distance of one hundred twenty-four and seventy-eight one-hundredths (124.78) feet to a stake on the ,western. right~vf-way line of. Rupley Road, the point and place of BEGINNING. CONTAINING two and sixty-six ohe-hundredths (2.66) acres, more or less. ,j . ! ~.f The aforesaid description is made in accordance with survey made by William E. Sees, Jr., Consulting Engineer, On September 2~: 1968. - ~- I ,..--- BEING a part. of the same premises which A.R. Rupley., '" Devclopment Company by its deed dated ',' - .-.---- ~ and recorded in the Recorder's Office in and for said Cumberland County.in Deed Book. ., Vol. , Page . granted and conveyed unto Arthur iC Rupley, one of the grantors herein. '.V:.-- ., _ n l. AND the said gmntOf's hereby covenant and agree that they and each of them wiU warrant Generally the property hereby convcyed. ~jJ~ ii:.\1lU School Dist. Cumbo Co., P.~ l~i5"&Jlli:ili~ ;'i~:a A..... ''':ii .~~ '~fl~~ '!i ~.: _'" ~.~,1it, .~., 1_",... '>l.', ;:'.~ tf~~ _ : ''/.(t.~_:;: -'~ I' .'- __o..--~_._'~- n:ii;~\ii(~~:f;J;'. ". ",-:" ",,,,,.,,..; ;':.~Ji~ l:l:O:WJ.{.i:u 'I . , ! > ! l ''\~,H.liO' ,. n. ..."';)l.l'g!J o,~......~-;~~t Cumbo Co., Pa. .:!i!" au' EII.f. TrUlt., Tn ~ "S,_';;l._L",. 'V~ r. r:......lY.,. ....!Ml;....... jJ.:~~~ \'\ ' , '" i~ Cu.,b. Co, Did. Co!. A... '- &.... & a...l hhf. T,u,'., T.. . S'~-GA l'~~-- Oat. .............. Al\ ace ..... . IO,,"~L~D~ ~ll-~ It- .curnlt. Co. Uhl. Co~. A,I. ..... '<..... IN WITNESS WHEREOF. sa!d grantors ha vehereunto set their hand Slnd seaS the day and year first above written. . ~nrh. &rslrb sllb 1I.llvrr,h 1:-. f~t 1J'rutntt pt ~~~"-f~L~ ;a~~~ E~-l.A-.:c.t'::~---.!:-::..~~~- ~'~L r ...ur ". Rup't1;b-r--:-u-------' -- .:./:1.11/;.L~_~:_L:::!.!.!.F.:...!1t-I-.e. :/. __..,~ .M1ldred Gates RUPley,t-. --..-....--.-.---..;.-.-.. ' ~., -~L- . -_____..._...__n. __ -~...-...._.......-.-.....--.-.-.:....- -- .~.,...--.,~.~.B - '_'_.._..n....._.. ... Staieof j?~ ~ }.s. . ' County of CtA/..-.vf!~ . day of ~ ,1969 ,before me. 011 this, the 7' . aid State and county, a Notary Public 1n and for S th r R. Rupley and Mildred Gates U appeared Ar u the undersigned f?fJicer"llcrsona y . RUpley, h1S w1fe, . s are sub.cribed to the . ) t be the person s whose name. th ein known to me (or satisfactorily I"oven 0 they executed same for th,e purposes er witllin instrument, and acknowledged that . contained. ....r.,;.;~~:.,~... , . t nd.and otJicio.lseal. "., ';) 11 '" . IN WITNESS 'WHEREOF, I hereunto se m. ? .' ,'"' d.( ...... ~ . . ' . A" ~t-', ., .. ..~~-~-- -~.;r~r~1fF:.}) ~/ / C!." ',.,..:9.,-;;..;'9tfl , '"..... .,'...... ~:., .~...,,~ V}_. (1 ,.... """ . ~~~~:'lrt"H'\':' ." ~ . . . . nil compute flost o~e 044ress J do here"". certify t~A~ ~:::;; ~~:..: ~ "",, I g, . of the within .Mmed gmntee IS ..1'1' / '? '1 , /)"7 ? 19(,1' _~~_. ,_~_,./f.,/,,___--____u-,-,- AttornellfOl' -#...-,,,,!/, (..fI"'.t4--.-.-- , .....)'1 -- BCr:~ r ~v PAGE 67 . -. ... - ",--'-"-~"-~--. "-':~,,~..:.- ..,.:..~-~---_... ....-....-"'.,.-~... ,~,~,=......_=, .. . . e '" ')0 P' SAlOIS, GUIDO, SHUFF & MASLAND 2109 MlII"kct Street Camp Hill, PA ~~""0NWEAl-rnOfPENNSYlVANIA } "",<yolCUMBERLANO sa i. '~be" p, Ziegler, Reoonlet do tunbr "d""V that the foregolrtg Is a'true and ~;":jopya~:~ ~ilrreSSmy~~:r~. ... . to Dayof ~ ~~~ January 2006 .' ;.;:~ ~: L r.-7" . ': :"(, I r;: . '....'-'" '. ;).3(.,00':::- !i.:;GO);.~)L;~ vi; i~LtOS f, 1.1.~:E:::LMH; GOUlll (-f ~ AUt: l~ Pl'l 3 36 Tax Parcel No. 47 18 1302-001B THIS DEED ~" -4 Made the If) -nay of u:..'-<-Cj/Li._~ ,1996, between ELSTON L. WICKENHEISER and L. PATRICIA WICKENHEISER, his wife, of wormleysburg, Cumberland County, Pennsyl- vania ("Grantors") AND HARVEY HOFFMAN and NANCY HOFFMAN, his wife, of Camp Hill, Cumberland County, pennsylvania ("Grantees") WITNESS, that in consideration of the sum of Seven Hundred Thousand ($700,000) Dollars in hand paid, the receipt whereof is hereby acknowledged, and intending to be legally bound hereby, the Grantors do grant and convey to the Grantees, their heirs and assigns: ALL that certain tract or parcel of land situate in the Borough of Wormleysburg, Cumberland County, Pennsylvania, more particu- larly bounded and described as follows, to wit: BEGINNING at a stake on the western'right of way line of Rupley Road on the line of lands of the West Shore School District, which said point of beginning is North 14 degrees 41 minutes 42 seconds West, 254,12 feet from a stake on the western line of said Rupley Road on the line of lands of said West Shore School District, which said last mentioned stake is North 09 degrees 21 minutes 52 seconds West, 477,OB feet from a stake at the south- east corner of lands now or formerly of the West Shore School District; thence along said lands now or formerly of the West Shore School district, North 14 degrees 41 minutes 42 seconds west, 716,38 feet to a stake; thence by lands now or formerly of Franklin Moore, North 73 degrees 19 minutes 30 seconds East, 116,30 feet to a stake; thence further by same North, 81 degrees 51 minutes 30 seconds East, 184,38 feet to a stake; thence still by same, North 42 degrees 39 minutes 38 seconds East, 3.61 feet to a stake; thence by lands now or form~r1y of the Borough of Wormleysburg, South 09 degrees 58 minut~s 20 seconds East, 127 feet to a stake; thence by lands now or formerly of Arthur R, nOOK ;!.<14 PAGE 30'7 DEfENDANT'S EXH\B\t J-1<Y1(~ ~ - mIS, GUIDO, snUFF & MASLAND (l9 Mllrkcl Slreel Camp Hill, PA Rupley, South 42 degrees 32 minutes 54 seconds West, 166.84 feet to a stake; thence further by same, South 14 degrees 41 minutes 42 seconds East, 311.99 feet to a stake on the northern line of Yverdon Drive; thence along the northern right of way line of Yverdon Drive in a southwestwardly direction by a curve to the left having a radius of 305 feet, an arc distance of 119.24 feet, to a stake; thence further by same in a southwestwardly direction by a curve to the left having a radius of 150 feet, an arc distance of 124.76 feet to a stake on the western right of way line of Rupley Road, the point and place of BEGINNING. CONTAINING 2.66 acres, more or less. The aforesaid description is made in accordance with a survey made by William E. Sees, Jr., Consulting Engineer, on September 25, 1968. . BEING the same premises which Arthur R. Rupley and Mildred Gates Rupley, his wife, by deed dated March 7, 1969, and recorded in Deed Book "F," Vol. 23, Page 66, Cumberland County records, granted and conveyed unto Elston L. Wickenheiser and L. Patricia Wickenheiser, his wife, the Grantors herein. AND the Grantors will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, the Grantors have hereunto set their hands and seals the day and year first above written. WITNESS: JJdv, p -t ;;t{Lilifg~ /Elston L. 1ckenheiser (SEAL) or tJ;;",~ :>>/ ~i'?l<Ac<~e,) L. Patricia Wickenheiser (SEAL) BOOK i 44 PACf 308 . ~ , . e . ~, ! e e e ,', SAlOIS, G UlOO, SHUFF & MASI.AND 2109 MllI'kcl Street Camp Hili, PA , . COMMONWEALTH OF PENNSYLVANIA) SS COUNTY OF CUMBERLAND) On this, the. IS.\h day of Y-\~IC\IA.st , 1996, before me, the undersigned officer, persona11y appeared ELSTON L. ,. WICKENHEISER and L. PATRICIA WICKENHEISER, his wife known to me (or satisfactorily proven) to be the persons whose names are sub- scribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. I IN WITNESS WHEREOF, I seal. is: 4f ' '-/f ,',,),1'/ ,ij fl.! )1 i:'L. " '/ ,.... i I I I I I I , , , I I COMMONWEALTH OF PENNSYLVANIA) :55 CUMBERLAND) COUNTY OF Recorded on this I~ day of ~, 1996, in the R~;lder'8 Office of the said County in Record Book IL~ , Page . ~ ..~' Gi ve;:n ~'/u;np.er my ~~lfii~"" . .~i~~t:., '';;' 'Y; ~1Ii:~;\l:W~~?,n. . '~. ~~-r~r~' hr~~ ' , '~"'~ }g{~~!F..!r:~~, y,_-_ " 11';;J""i",h-"" ,~,.. ':;'~ :', ~e.:.t1J.jz.il~!~i\i"~~1!;~'io"': ''i<'!;, .'! "~I,r.~:';~"'~!i;';>~"';'"~., _ . -e.*"r- ( !tfr,.t~""Z l'.f~~""'="""{."""'.'flt;;. . l'.,......~,'l >'...:,-. ;;\l'.....~"_.... ...>..~~..."". , IJ:. .~lt.;..'ft'--..r.-~i'l ~ Y.' ~ , . '.. - ".~~,,~')j:<::.....;;>l:.'. .'~'!> ';""I_.~ .,...~ ..... . ,If''' ,!~.,",,' 'RE'1i."\i':ll<'; '. '''f.,t:~'':''~~~... ~~._.:,::";'~? hand and the seal of the said Office, the vj2~ ~ ?i..e. - Recor.... WOK 1.4'1 PAGE 309 ! ,~.... (. CUllber hnd Cmmty Recorder of Deeds Instrument Filing lIeceift! 9q571 InstrN 1996-023600 B/15/1996 15:37:48 Remarks: DARRELL C DETHLEFS/HOFFMAN eMII 2 DEED DEED - WRIT DEED - liT! STATE IlST SHORE WORMLEYSBIJRG BORO DEED - AIH Check! 154q CheckN 1545 CheckN 1546 CheckN 1553 Tolal Received....... 11.50 .50 7000.00 3500.00 3500.00 11.50 $7.023.00 1.50 $3,500.00 13,500.00 $11"023.50 DOOK 144 f~t[ 310 e e e ..~=. .. ~ " ~~, J - David A. Szewczak, Esq. Prothonotary Patricia A Whittaker Ollef aerk Superior Omrt of Pennsylvania Middle District April 8, 2003 100 Pine Street, Suite 400 Hmisbwg, P A 17101 717-772-U94 www.superior.courr.state.pa.us Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: LCL Income Prop et aL v, Hoffman, H, No,972 MDA 2002 Trial CourUAgency Dkt Number: 2000-395 Trial CourUAgency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Parts Date of Remand of Record: Filed Date August 6,2002 MAY 20 2003 Description 1 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office, Copy recipients (noted beloll\lPne~ not acknowledge receipt. ~ 8... ~ :. " J.... n' JI '.d.. IL --o~. 3;; ff, fd ~6(.W~ \J)1..~-,~ :z: -om ~K~ ~.~~ ( __ _ _0 .. 'Z-(~--,.'.' ..,;J'" ~fn '';:::'\j r:-? ~ y~ 'JO Signature! Date 2 ::. :< R c 0-U- t< & rvt-1J'Ym Printed Name - f /paw < . J-A43004-02 LCL INCOME PROPERTIES, L.P. II, D.B.A. BUNKER ASSOCIATES IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. HARVEY HOFFMAN Appellee No. 972 MDA 2002 Appeal from the Judgment Entered July 24, 2002, In the Court of Common Pleas of Cumberland County, Pennsylvania, Civil, at No. 2000-395 BEFORE: JOHNSON, KLEIN and GRACI, JJ. MEMORANDUM: FILEDAPR 8Z003 This is an appeal from the judgment entered July 24, 2002,1 in the Cumberland County Court of Common Pleas in favor of Appellee, Harvey Hoffman ("Hoffman"), and against Appellant, LCL Income Properties, L.P. II, d/b/a Bunker Associates ("LCL"). We affirm. The facts underlying this appeal are set forth by the able trial court, the Honorable J. Wesley Oler, Jr., as follows: Plaintiff [LCL] is a limited partnership known as LCL Income Properties, L.P. II, which trades and does business as Bunker Associates. It owns and operates a garden apartment complex known as Bunker Hill Apartments located in Wormleysburg Borough, Cumberland County, Pennsylvania, and having a mailing address of 1100 Yverdon Drive, Camp Hill, Pennsylvania. 1 We note that Appellant actually filed its notice of appeal from the May 17, 2002, Order denying its post trial motions, an order which is generally interlocutory and not appealable unless reduced to judgment. Dominick v. Hanson, 753 A.2d 824, 825 n. (pa. Super. 2000). However, judgment was subsequently entered on July 24, 2002; thus, we will consider the appeal filed after the entry of judgment. rd. See also Pa.R.A.P. 905(a). '1 J-A43004-02 Defendant is an adult individual named Harvey Hoffman. He owns a townhouse apartment complex adjacent to Bunker Hill Apartments, known as Yverdon Manor and having a mailing address of 1200 Yverdon Drive, Camp Hill, Pennsylvania. At one time, the land owned by [LCL] and the land owned by [Hoffman] comprised a 52-acre tract owned by a common grantor in the respective chains of title named Arthur R. Rupley. On part of the land, Mr. Rupley or his predecessor in interest, A.R. Rupley Development Company, built about 60 garden apartments and a sewage pumping station which served the units. This complex is known as Bunker Hill Apartments. On March 7, 1969, Mr. Rupley (and his spouse) conveyed 2.47 unimproved acres of the tract to [Hoffman's] predecessor in interest, Elston L. Wickenheiser (and his spouse). When Mr. Wickenheiser (who had served as construction supervision manager in connection with the Rupley development) construc- ted 14 townhouses on his tract in 1972, these townhouses were also served by the pumping station on the land retained by Mr. Rupley. This complex is known as Yverdon Manor. An agreement dated January 30, 1972, between Arthur R. Rupley (and his spouse) and Elston L. Wickenheiser (and his spouse) confirmed and ratified this arrangement whereby sewage from the Wickenheiser property was permitted to flow without charge through the pumping station on the Rupley property en route to the municipal sewer authority treatment plant. The agreement inured to the benefit of the parties and "their heirs, executors, administrators and assigns." This arrangement has existed for the last 30 years. In 1986, [LCL] purchased the Bunker Hills [sic] Apartments portion of the Rupley tract. Shortly thereafter, according to Mr. Wickenheiser's testimony, he was contacted by an attorney on behalf of [LCL] who inquired about the use of the pumping station on [LCL's] property for the benefit of the Wickenheiser property. Mr. Wickenheiser stated that he furnished a copy of the 1972 agreement to [LCL's] counsel, that he received no further communications from the attorney, and that the use of the pumping station continued thereafter without incident or charge. - 2 - ]-A43004-02 On August 16, 1996, [Hoffman] (and his spouse) purchased the Yverdon Manor portion of the Rupley tract, from Mr. Wickenheiser (and his spouse). In 1998, [LCL's] regional manager, who had been associated with management of the Bunker Hills [sic] Apartments since 1988, contacted [LCL's] counsel with a view toward extracting payment from [Hoffman] for use of the pumping station. Based upon past expense records, she concluded that a fair pro rata share of the cost of the station for [Hoffman] was $900 per year. Opinion and Order of Court, 5/17/02, at 4-7 (footnotes omitted). When Hoffman failed to respond to LCL's request for payment, LCL filed a complaint seeking damages for unjust enrichment. Hoffman's answer and new matter followed, however, at that time, Hoffman failed to raise the defense of the 1972 Agreement and Release. The case proceeded to arbitration, following which LCL was awarded $1950 in damages, plus interest. Hoffman promptly appealed to the Court of Common Pleas. On December 4, 2000, Hoffman moved to amend his new matter to assert, for the first time, the defense of the Agreement and Release. The trial court issued a Rule to Show Cause, but LCL failed to respond. When the trial court took no action on the motion for another year, Hoffman filed a motion to make the rule absolute. The court issued another Rule to Show Cause and, once again, LCL failed to respond. On February 27, 2002, the morning of trial, the court granted Hoffman's motion without objection from LCL. The bench trial proceeded, and the court took the matter under advisement. The next day, the trial court entered a verdict for Hoffman. - 3 - ""","-- - ~<< , I. . . -~~<.;.., ]-A43004-02 LCL filed post trial motions, which were denied by Order dated May 17, 2002, and this timely appeal followed. LCL now raises three issues for our review, all concerning the admissibility of the 1972 Agreement and Release: 1. Did the trial court err in admitting the Agreement and Release when it was not listed in Hoffman's new matter, and, even after the court granted Hoffman leave to amend, Hoffman failed to do so formally until almost six weeks after trial? 2. Did the trial court err in admitting the Agreement and Release when it was not recorded and the parties to the Release did not intend for it to run with the land? 3. Did the trial court err in admitting the Agreement and Release when it was irrelevant and immaterial to the instant dispute? See Brief for Appellant, at 3. (Issues reworded for clarification purposes). When reviewing a verdict in a non-jury trial, we are limited to determining whether the court's factual findings are supported by the record, and whether its legal conclusions are correct. Stokes v. Gary Barbera Enterprises, Inc., 783 A.2d 296, 297 (Pa. Super. 2001), appeal denied, 797 A.2d 915 (pa. 2002). Moreover, "[w]hen the trial court sits as fact finder, the weight to be assigned the testimony of the witnesses is within its exclusive province as are credibility determinations." Id. (citation omitted). The issues raised sub judice all challenge the court's admission of - 4- ~ -~'I-I ]-A43004-02 the Agreement and Release into evidence. . "Questions concerning the admissibility of evidence are within the discretion of the trial judge, whose decision we will not overturn absent an abuse of discretion or an error of law." Srinich v. Jencka, 757 A.2d 388, 395 (pa. Super. 2000), appeal denied, 771 A.2d 1276 (pa. 2001) (citation omitted). First, LCL contends that the court erred in admitting the Agreement and Release when Hoffman failed to include it as a defense in his new matter even after the court granted him leave to amend. When Hoffman originally filed his answer and new matter, he neglected to include the affirmative defense of the release. See Pa.R.C.P. 1030(a) ("all affirmative defenses including but not limited to the defenses of . . . release. . . shall be pleaded in a responsive pleading under the heading 'New Matter"'). Following his appeal to the common pleas court, Hoffman petitioned the court to amend his new matter to include this defense. Although the court entered two separate rules to show cause, LCL failed to respond. Accordingly, the court granted Hoffman's motion on the morning of trial without objection from LCL. Opinion and Order of Court, 5/17/02, at 7. Hoffman did not formally amend his pleading, however, until almost six weeks later. LCL argues that Hoffman's failure to plead the defense properly should have precluded the admission of the release at trial. The court concluded, however, that "[a]ny prejudice to [LCL] from [Hoffman's] failure to promptly file a formal pleading incorporating the amendment following authorization - 5 - :i J-A43004-02 by the court for inclusion of the agreement among the defenses to be litigated was purely illusory." Opinion and Order of Court, 5/17/02, at 12. We agree. In fact, during trial, LCL's counsel stated that his client "agreed to permit" the amended answer. N.T., 2/27/02, at 16:12-13. As noted by the trial court, LCL "acquiesced in" the amendment. Opinion and Order of Court, 5/17/02, at 12. Thus, LCL may not now complain that it was prejudiced by the trial court's admission of the document. We find this Court's decision in Holmes v. Lankenau Hasp., 627 A.2d 763 (Pa. Super. 1993), appeal denied, 649 A.2d 673 (Pa. 1994), instructive. In that case, appellees first learned of the existence of a release during discovery after the pleadings had been filed. Id. at 765. Rather than petitioning the court for leave to amend their new matter, appellees moved for summary judgment based on the release. Id. On appeal, appellants argued that the affirmative defense was waived. We held, however, that appellants were entitled to no relief because they failed to demonstrate that they were prejudiced by appellees' procedural misstep; indeed, they had the opportunity to respond to appellees' defense in their answer to the summary judgment motion. Id. at 766. The same is true here. LCL was given two opportunities to object to admission of the Release. Rather than doing so, - 6 - ~_.... ~"~ _, :J...;~. - .'!I J-A43004-02 however, LCL agreed to the document's admission. Failing to demonstrate any prejudice, LCL is entitled to no relief. 2 Next, LCL argues that the trial court erred in admitting the Agreement and Release when it was not recorded, and the parties did not intend for it to run with the land. Again, we find LCL is entitled to no relief. As LCL properly asserts, 21 P.S. 9 356 requires that all written agreements concerning real property be recorded: All agreements in writing relating to real property situate in this Commonwealth by the terms whereof the parties executing the same do grant, bargain, sell, or convey any rights or privileges of a permanent nature pertaining to such real property, or do release the grantee or vendee thereunder against damages which may be inflicted upon such real property at some future time, shall be acknowledged according to law by the parties thereto or proved in the manner provided by law, and shall be recorded in the office for the recording of deeds in the county or counties wherein such real property is situate. 21 P.S. 9 356. It is undisputed that the Agreement and Release was not recorded. However, we do not find that to be a fatal defect, as there was sufficient evidence to show that LCL had actual notice of the Agreement, and, in fact, acknowledged the document's authority for twelve years. 2 We note that LCL claims it was prejudiced with respect to Mr. Wickenheiser's testimony. LCL argues that its ability to effectively examine Mr. Wickenheiser concerning the details of the Release was hindered by the trial court's last minute decision granting Hoffman leave to amend his new matter. However, LCL failed to raise this issue in post trial motions and, accordingly, the issue is now waived. See Pa.R.C.P. 227.1(b)(2). Moreover, LCL's counsel made the follOWing statement when Hoffman called Mr. Wickenheiser as a witness: "[I]f the Court please, I'm not going to object, but I must indicate my displeasure." N.T., 2/27/02, at l6:9-l0. - 7 - ~" ; .I.".' . - '""'riJ J-A43004-02 The law concerning the recording of deeds is instructive. Pursuant to 21 P.S. S 351 ("Failure to record conveyance"), every deed conveying land must be recorded; otherwise, it is void as to a subsequent purchaser without actual or constructive notice thereof. "Because constructive notice is not limited to instruments of record, a subsequent purchaser may be bound by constructive notice of a prior unrecorded agreement." Long John Silver's, Ine. v. Fiore, 386 A.2d 569, 573 (Pa. Super. 1978) (citation omitted). The same principle is applicable here. If an unrecorded deed, known to a subsequent purchaser, is binding, surely an unrecorded agreement and release, known to a successor in title, must also be binding. In the present case, Mr. Wickenheiser testified that shortly after LCL purchased the Bunker Hill Apartments, an attorney representing LCL contacted him regarding his use of the pumping station. N.T., 2/27/02, at 24, 28. In response, Mr. Wickenheiser provided a copy of the Agreement and Release, and never heard from either LCL or its attorney again. Id. at 25:3-5. Although LCL's Regional Manager, Sherry Hockley, refuted this testimony, the trial judge obviously found Mr. Wickenheiser's testimony credible, as was the court's prerogative. Stokes, 783 A.2d at 297. Accordingly, the evidence demonstrates that LCL had actual notice of the Agreement and Release as early as 1986. Rather than challenge the - 8 - ,. ~ -,. -, " I-~ _, _,' . 'iF] J-A43004-02 document's validity, however, LCL acknowledged its authority, and sought no payment from Mr. Wickenheiser for his use of the pumping station.3 LCL also argues that the parties did not intend for the Agreement and Release to run with the land. However, the plain language of the document suggests otherwise: In pursuance of the agreement of the parties, each of the parties hereto does hereby remise, release, quitclaim and forever discharge to the other, his heirs, executors, admini- strators and assigns, from all claims, demands, actions, causes of action, suits, debts and contract, especially all claims regarding the matters above-mentioned, which against the other party each may have or now has from the beginning of the world to the date of these presents. Agreement and Release, 5/30/72, at 2 (emphasis added). Although LCL emphasizes that the clause does not mention successors in title, this omission is irrelevant. The Agreement clearly applies to "assigns," which we find applicable to successors in title, and LCL provides no authority to the contrary. In addition, this argument seems disingenuous now since LCL, a successor in title to Mr. Rupley, considered itself bound by the Agreement when Mr. Wickenheiser owned Yverdon Manor. LCL also notes that the Agreement refers to various other disputes between the parties, that a finite period of time was set forth in the Agreement, and that Mr. Wickenheiser never told Hoffman about the 3 Indeed, LCL did not challenge the Agreement and Release until 1998, two years after Hoffman had purchased the Wickenheiser property, when there was a serious sewage backup at the pumping station. N.T., 2/27/02, at 10-11. Contrary to Mr. Wickenheiser's testimony, Ms. Hockley claimed that that was the first time LCL learned of Hoffman's use of the pumping station. Id. at 10. - 9 - ]-A43004-02 Agreement and Release when Hoffman purchased the property. Again, in light of the plain language in the Agreement binding all "assigns," we find these points irrelevant. Although the document does refer, in general terms, to other disputes between Rupley and Wickenheiser, it is clear that the primary focus of the Agreement is Mr. Wickenheiser's use of the pumping station. Moreover, the finite time period to which LCL refers is in the paragraph set forth above. It merely states that the Release applies to all claims between the parties "from the beginning of the world to these dates presents." Id. That language does not in any way support LCL's claim that the Agreement fails to bind successors in title. Moreover, Mr. Wickenheiser's testimony also fails to bolster LCL's argument. The fact that he, personally, did not inform Hoffman of the agreement is simply immaterial. The Agreement, by its very terms, binds the parties here. More importantly, however, LCL completely ignores the trial court's conclusion that it failed to prove unjust enrichment. "Unjust enrichment" is essentially an equitable doctrine. We have described the elements of unjust enrichment as "benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value." The application of the doctrine depends on the particular factual circumstances of the case at issue. . . . The most important factor to be considered in applying the doctrine is whether the enrichment of the defendant is unjust. Schenck v. K.E. David, Ltd., 666 A.2d 327, 328 (Pa. Super. 1995), appeal denied, 676 A2.d 1200 (Pa. 1996) (citations omitted). "To sustain a claim of - 10 - ]-A43004-02 unjust enrichment, a claimant must show that the party against whom recovery is sought either 'wrongfully secured or passively received a benefit that it would be unconscionable for her to retain.'" Torchia on behalf of Torchia v. Torchia, 499 A.2d 581, 582 (pa. Super. 1985), reargument denied (quoting Roman Mosaic & Tile Co. v. Vollrath, 313 A.2d 305, 307 (1973)) (emphasis added). In the present case, the trial court found that LCL had failed to meet its burden of proving that Hoffman received a benefit that it would be "unconscionable" for him to retain. The court cited a number of factors in support of its decision: the consensual origin of the use of the pumping station for the benefit of [Hoffman's] land, the written agreement to that effect, the assignability and succession of the agreement by its terms, the statutory general rule that a conveyance of land will pass all of the owner's rights therein without regard to an absence of an express assignment in the deed of conveyance,[4] the equitable principles underlying the implied easement doctrine, the acceptance by [LCL] and its predecessors in interest of the existing arrangement for almost a quarter of a century, and the equitable qualities of an action for unjust enrichment. Opinion and Order of Court, 5/17/02, at 11. We agree. 4 21 P.S. S 3 ("Grantor's entire estate and rights conveyed") provides: All deeds or instruments in writing for conveying or releasing land hereafter executed, granting or conveying lands, unless an exception or reservation be made therein, shall be construed to include all the estate, right, title, interest, property, claim, and demand whatsoever, of the grantor or grantors, in law, equity, or otherwise howsoever, of, in, and to the same, and every part thereof, together with all and singular the improvements, ways, waters, watercourses, rights, liberties, privile!;Jes, hereditaments, and appurtenances whatsoever thereto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof. - 11 - J-A43004-02 In its last issue, LCL contends that the trial court erred in admitting the Agreement and Release when it was irrelevant and immaterial to the instant dispute. Again, we find LCL is entitled to no relief. Pennsylvania Rule of Evidence 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Pa.R.E. 401. Here, the Agreement and Release was clearly relevant to the dispute as the trial court concluded. Opinion and Order of Court, 5/17/02, at 12. It proved an agreement between the predecessors in title permitting the owner of Yverdon Manor to use the pumping station attached to Bunker Hill Apartments at no cost. As discussed previously, we find that agreement applies with equal force to the parties here. Therefore, the Agreement made it "less probable" that Hoffman was unjustly enriched. Judgment affirmed. KLEIN, J., files a Dissenting Memorandum. - 12 - J-A43004-02 Date: -' ,~ ~ _ < '-J "",-,',._.'__ -k "_h._' ,-."_ < '"' - 13 - - - J:>:....iL ~ '. ,I. J. A43004/02 LCL INCOME PROPERTIESr L.P.II d/b/a BUNKER ASSOCIATES, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA v. HARVEY HOFFMAN No. 972 MDA 2002 Appeal from the Order entered May 17, 2002 In the Court of Common Pleas of Cumberland County, Civil No. 2000-395 BEFORE: JOHNSON, KLEIN and GRACI, JJ. FILEDAPR 82003 DISSENTING MEMORANDUM BY KLEIN, J.: I respectfully dissent from the majority. I believe that LCL took the property free and clear of any agreement to allow its neighbor to continue using LCL's pumping station without compensation, and the fact that LCL gratuitously allowed first Wickenheiser and then Hoffman to use the pumping station does not confer any rights to Hoffman. I believe it helpful to analyze the situation first as it existed at the time LCL bought the property. At that time: 1. The agreement to use the pumping station was not recorded, and therefore, as is agreed by all, under 21 P.S. !3 356, does not in and of itself bind LCL. 2. At the time of purchase, LCL did not have actual or constructive notice of the agreement, since it was not obvious by observation that sewage from the adjoining property ran through the LCL J. A43004/02 pumping station. According to the testimony, it was only after the purchase in 1986 that LCL's attorney called Wickenheiser to ask about Wickenheiser's use of the LCL pumping station. Therefore, at the time LCL acquired the property from Rupley, LCL would have had every right to insist that Wickenheiser stop using the pumping station or that he compensate him for his pro rata usage. The agreement relates to real property, and is only effective if recorded or if the purchaser has actual or constructive notice of it at the time the purchaser acquires the real property. The question then becomes what is the effect of LCL's subsequent conduct when it allowed Wickenheiser to use the pumping station without charge for twelve years, and later allowed Hoffman to use it free of charge for two years? I do not believe this forever bars LCL from having full use of its property or requiring someone using its pumping station to pay for that use. The time, even added together, is only fourteen years, not enough to allow a use of the pumping station by adverse possession. Merely because LCL was acting as a good neighbor for fourteen years does not mean it has to continue to act as a good neighbor in perpetuity. Moreover, LCL is not acting unreasonably in asking Hoffman to pay a share of the pumping station use for which he benefits. This is not a neighbor that is cutting off access to the sewage disposition, which I believe he is empowered to do. He is merely asking Hoffman to share in the costs of something that Hoffman uses to his benefit. - 2 - , " IL '-<,-,1' -,,_- J. A43004/02 I believe absent some contribution to the costs of the pumping station, Hoffman is being unjustly enriched. I would reverse and require Hoffman to compensate LCL for his use of the station. - 3 - ~IllIiIIIi.- "''''''''''''-.J~~~I/iirl:ii!iW/!.~.~ = - , - ~ , , +, ,. . ..- aN> '. .'~ ., ~ 0 "" = 0 c: co> -n ;:::.'" ...- ,T._';-:; c..... .... ~ ::> :I :J~ rn ::n 2c ,. I :-om -.:<~-; :J.. :06 ...:, U1 ?iJ -ri <- . c "-.' " b::D f-:. r'O', ::i.;: z~ ',..J -".0' ,,,. ~ Of 'l -l '3 C) ;t> _U -~ -< , ;1" -.", ~. L '-', CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYL VANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by P A R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: LCL INCOME PROPERTIES, L.P. II tJdIb/a BUNKER ASSOCIATES vs HARVEY HOFFMAN NO. 00-395 CIVIL TERM 972 MDA 2002 The documents comprising the record have been numbered from No.1 to 130, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 8-2-02. An additional COpy of this certificate is enclosed. Please shm and date copy. thereby acknowledl!inl! receipt of this record. Date Signature & Title "". ~ .b~. _~~. ~-- - " ' '.' ~ :-'<-':;.\'0.> Among the Records and Proceedings enrolled In the court of Common Pleas in and for the CUMBERLAND 972 MDA 2002 00-395 CIVIL in the Commonwealth of Pennsylvania county of to No, Term, 19 is contained the following: COPY OF COMPLETE DOCKET ENTRY LCL INCOME PROPERTIES, L.P., II t/d/b/a BUNKER ASSOCIATES VS. HARVEY HOFFMAN SEE ATTACHED CERTIFIED DOCKET ENTRIES. Defendant _, as the same remains of record before the said Court at No, 00-395 of Civil Term, A,D, 19_, hereunto set my hand and affixed the seal of said Court d~f Au ust A, D.. @Q2 , 8y.~ ;-,'-,-,' -,~,_-~o _ ,,'J"V.'::-'-J_-:'<:":';;':~-"~,~",,"'-_":' ;'-::'~'g:~:;y-:: -.',,-,' ,. .' .-J<- ;.,.".-. - '" :', ;'- ~: : ,,' ,~ .~-~- ~ '.;W'-;"'" ,', Commonwealth of Pennsylvania County of Cumberland In TESTIMONY WHEREOF, I have this 2nd '" :1 ~ ~ ',' } ss: I, Curt is R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein LCL Income Properties, LP, II, t/d/b/a bunkerAssoc. Plaintiff, and Harvey Hoffman notary j/ I, George E. Hoffer President Judge of the Judicial District,.composed of the County of Cumberland, do certify that CurtJ.s R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature a e er, a d that the said record, certificate and attestation are in due form of law and made by t I Commonwealth of Pennsylvania County of Cumberland Ninth P sident .Iudge } ss: I, Curtis R. Lon9 ' Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable GAorgA Po. HoffAr, P ,1 by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, atthetime of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified: to all whose acts as such fuli faith and credit are and ought to be given, as well in Courts of judicature as elsewhere, (' { \1 \ jl. :\ i i i \ I \ ,\ 'I PAGEI\I). 1 - 7 8 9 - 13 14 - 18 19 19 20 -22 23 24 ~. .= ." '-"; ~ PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry 2000-00395 LCL INCOME PROPERTIES L P II (vs) HOFFMAN HARVEY Page 1 Reference No. . : Case Type. ....: COMPLAINT Judgment...... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc. : ------------ Case Comments ------------- Filed. . .'. . . . . : Time......... : Execution Date Jury Trial.... Disposed Date. Higher Crt 1.: Higher Crt 2.: 1/21/2000 2:14 0/00/0000 0/00/0000 972 MDA 2002 ******************************************************************************** General Index Attorney Info LCL INCOME PROPERTIES L P II BUNKER ASSOCIATES 1100 YVERDON DRIVE CAMP HILL PA 17011 HOFFMAN HARVEY 1200 YVERDON DRIVE CAMP HILL PA 17011 PLAINTIFF PLAINTIFF FRIEDMAN RICHARD S KING JOHN F FRIEDMAN RICHARD S KING JOHN F DEFENDANT Judgment Index HOFFMAN HARVEY LCL INCOME PROPERTIES L P II BUNKER ASSOCIATES Amount Date Desc 1,950.00 10/20/2000 7/24/2002 7/24/2002 AWARD OF ARBITRATORS ORDER OF COURT ORDER OF COURT ******************************************************************************** * Date Entries * ******************************************************************************** 1/21/2000 2/02/2000 2/08/2000 2/17/2000 6/29/2000 7/18/2000 9/12/2000 9/15/2000 10/20/2000 25 - 26 11/08/2000 27 - 29 12/04/2000 27 - 29 12/04/2000 30 11/09/2001 1 11/16/2001 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT - CIVIL ACTION ------------------------------------------------------------------- ACCEPTANCE OF SERVICE ------------------------------------------------------------------- DEFENDANT'S ANSWER WITH NEW M4T~ER TO THE COMPLAINT OF THE PLAINTIF LCL INCOME PROPERTIES LP II T/D/B/A BUNKER ASSOCIATES ------------------------------------------------------------------- PLAINTIFF'S ANSWER TO DEFT NEW MATTER ------------------------------------------------------------------- PETITION FOR APPOINTMENT OF ARBITRATORS ------------------------------------------------------------------- ORDER OF COURT 7/03/00 APPOINTMENT OF ARBITRATORS GEORG~ E HOFFER P JUDGE ARBITRATORS ARE ROBERT FREY II ESQ - JENNIFER DEITCHMAN ESWQ AND TRICIA DILS NAYLOR ESQ . NOTICE MAILED 7/18/00 ------------------------------------------------------------------- MOTION FOR CONTINUANCE ------------------------------------------------------------------- ORDER - DATED 9/15/00 - IN RE MOTION FOR CONTINUANCE - GRANTED - BY GEORGE E HOFFER PJ - COPIES MAILED 9/15/00 ------ ------------------------------------------------------------- AWARD OF ARBITRATORS - IN FAVOR OF THE PLAINTIFF AND AGAJNST THE DEFENDANT IN THE AMOUNT OF 51950.00 PLUS INTEREST AT THE LEGAL RATE FROM AUGUST 1, 1998 PARTIES TO BEAR THEIR OWN COSTS NOTICE MAILED BILLED COUNTY FOR ARBITRATORS 12/06/00 ------------------------------------------------------------------- NOTICE OF APLEAL FROM AWARD OF BOARD OF ARBITRATORS - BY DARRELL C DETHLEFS ESQ ATTY FOR APPELLANT ------------------------------------------------------------------- MOTION OF DEFENDANT TO AMEND ANSWER AND NEW MATTER - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- MOTION OF DEFENDANT TO AMEND ANSWER AND NEW MATTER - BY DARRELL C DETHLEFS ESQ ------ ------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL - BY RICHARD S FRIEDMAN ESQ FOR PLFF --------------------------- ---------------------------------------- ORDER OF COURT - DATED 11/15/01 - A PRETRIAL CONFERENCE IN THE ABOVE MATTER IS SCHEDULED FOR 1/10/02 AT 1:30 PM IN CHAMBERS OF UNDERSIGNED JUDGE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA = ~"n~1 '" __""" ~ ~".o ,. ~ '~~o,~ i'.;il"".w.i ~".; I " / ,. 'I \ !\ 1\ i i ; \ ! \ PAGE'Nq. J '\ I ~ 'J,' tlrlM-.u,. '''', U "": PYS510 Cumberland County Prothonotary's Offtce Civil Case Inquiry 2000-00395 LCL INCOME PROPERTIES L P II (vs) HOFFMAN HARVEY Page 2 Reference No. . : Case Type.....: COMPLAINT Judgment...... .00 JVdge Assigned: HOFFER GEORGE E PJ D1sposed Desc. : ------------ Case Comments ------------- 32A - 32B 1/16/2002 1/30/2002 2/04/2002 PLAINTIFF'S ADDITIONAL GROUNDS FOR RELIEF - BY RICHARD S FRIEDMAN ESQ ------------------------------------------------------------------- 4/10/2002 DEFENDANT'S ANSWER WITH AMENDED NEW MATTER TO THE COMPLAINT OF THE PLFF LCL INCOME PROPERTIES LP II - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- TRANSCRIPT FILED - BY THE COURT J WESLEY OLER JR J ------------------------------------------------------------------- ORDER OF COURT - DATED 5/17/02 - IN RE PLFF'S MOTION FOR POST-TRIAL RELIEF BEFORE OLER JR J OPINION AND ORDER OF COURT - MOTION IS DENIED - BY THE COURT J WESLEY OLER JR J COPIES MAILED 5/17/02 ------------------------------------------------------------------- l20 - l24 6/17/2002 NOTICE OF APPEAL TO SUPERIOR COURT OF PENNSYLVANIA - BY JOHN F KING ESQ ------------------------------------------------------------------- SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 792 MDA 2002 ------------------------------------------------------------------- PRAECIPE FOR ENTRY OF JUDGMENT - ENTER JUDGMENT IN THE ABOVE CAPTIONED CASE PURSUANT TO THE COURT'S ORDERS DATED 2/28/02 AND 5/17/02 IN FAVOR OF DEFT ------------------------------------------------------------------- 7/24/2002 PRAECIPE FOR ENTRY OF APPEARANCE FOR PLFF - BY JOHN F KING ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - Exhibit and Briefs ******************************************************************************** * Escrow Information * * Fees & Debits Beo Bal Pvmts/Adl End Bal * *****************************************~************************************** 33 38 - 37 40 - 44 45 39 46 - 47 48 - 55 56 99 103 - 98 - 102 - 105 56 - 98 106 - 119 l25 - 128 - 130 2/21/2002 2/27/2002 2/28/2002 3/12/2002 3/12/2002 3/28/2002 4/09/2002 4/15/2002 5/17/2002 127 129 6/21/2002 7/24/2002 Filed...... ..: 1/21/2000 Time. . . . '. . . . . : 2: 14 Execution Date 0/00/0000 Jury Trial. . . . Dtsposed Date. 0/00/0000 H1gher Crt 1.: 972 MDA 2002 Higher Crt 2.: PRETRIAL MEMORANDA SHALL BE SUBMITTED BY COUNSEL AT LEAST 5 DAYS PRIOR TO PRETRIAL CONFERENCE - A NONJURY TRIAL IN THE ABOVE MATTER IS SCHEDULED FOR 2/27/02 AT 9:30 AM IN CR 1 CUMBERLAND COURTHOUSE CARLISLE PA - BY THE COURT J WESLEY OLER JR J COPIES MAILED 11/16/01 , ------------------------------------------------------------------- PRE-TRIAL CONFERENCE - BY THE COURT - J WESLEY OLER JR J COPIES MAILED 1-16-02 ------------------------------------------------------------------- MOTION TO MAKE RULE ABSOLUTE - DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- ORDER OF COURT - DATED 2/4/02 - IN RE DEFTS MOTION TO MAKE RULE ABSOLUTE A RULE IS HEREBY ISSUED UPON PLFFS TO SHOW CAUSE WHY RELIEF REQUEST SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 10 DAYS OF SERVICE - BY THE COURT J WESLEY OLER JR J COPIES MAILED 2/4/02 ------------------------------------------------------------------- MOTION TO MAKE RULE ABSOLUTE - BY DARRELL C DETHLEFS ESQ ------------------------------------------------------------------- ORDER - DATED 2/27/02 - IN RE MOTION BY THE DEFT AND FAILURE OF THE PLFF TO SHOW 'cAUSE WHY RELIEF SHOULD NOT BE GRANTED THE DEFT IS GRANTED PERMISSION TO AMEND HIS DEFENSE AS TO INCLUDE THE 'DEFENSE OF RELEASE - BY THE COURT J WESLEY GLER JR JCOPIES MAILED ------------------------------------------------------------------- ORDER OF COURT - DATED 2/28/02 - IN RE PLFFS COMPLAINT IN THE ABO~ CAPTIONED MATTER AND FOLLOWING A NON-JURY TRIAL HELD ON 2/27 02 THE COURT FINDS IN FAVOR OF DEFT AND AGAINSTPLFF - BY THE COUR J WESLEY OLER JR J COPIES MAILED 2/28/02 -------------,------------------------------------------------------ ORDER OF COURT - DATED 3/12/02 - IN RE PLFFS LCL INCOME PROPERTIES LP II MOTION FOR POST-TRIAL RELIEF - BY THE COURT J WESLEY OLER JR J COPIES MAIELD 3/12/02 ------------------------------------------------------,------------- PLAINTIFF LCL INCOME PROPERTIES LP II MOTION FOR POST-TRIAL RELIEF - BY RICHARD S REIEDMAN ESQ ------------------------------------------------------------------- TRANSCRIPT FILED - BY THE COURT J WESLEY OLER JR J ."H' . ",~ .,.",.- - """~'; ~,' :" .<:,;:;,;.-:'-' ...'~~r"'~ '.;' Cumberland County Prothonotary's Civil Case Inquiry LCL INCOME PROPERTIES L P II (vs) In ._~ I .:'. }' , II PYS5l0 , ,'I \; { II, i\ . \ i 2000-00395 Reference No.. : Case Type.. ...: COMPLAINT JudgmenL... ... .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc. : ------------ Case Comments ------------- COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE APPT OF ARBITRA APPEAL ARBITRAT APPEAL JDMT 35.00 .50 5.00 5.00 15.00 290.00 30.00 9.00 389.50 Office HOFFMAN HARVEY Filed. . . . . . . . : Time. . . . . . . . . : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: .00 .00 .00 .00 .00 .00 .00 .00 35.00 .50 5.00 5.00 15.00 290.00 30.00 9.00 389.50 .00 .1, .' ~< Page 3 1/21/2000 2:14 0/00/0000 0/00/0000 972 MDA 2002 ***~**************************************************************************** * End of Case Information * ******************************************************************************** TRUE (,Opy FROM R in Testimonywllereot 'h ECoRO lIld t seal ot said ,~ are unto set my hand fhi . "-"-- ' at CarliSle, Pa ~ y ~aljl LCL INCOME PROPERTIES, LP.II, tJdlb/a BUNKER ASSOCIATES Plaintiff vs. HARVEY HOFFMAN, Defendant . . 1_, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-395 CIVIL TERM NOTICE OF HEARING OF BOARD OF ARBITRATORS You are hereby notified that the Board of Arbitrators appointed by the Court in the above-captioned case will sit for the purpose of their appointment on Friday, October 20, 2000 at 9:00 A.M., in the Old CUl11berlandCoullty,Courthouse, One Courthouse Square, Carlisle, Pennsylvania, 2nd Floor Hearing Room. Date: September 20, 2000 COPIES TO: Richard Pierce Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Richard S, Friedman, Esquire Friedman & King PC P,O. Box 984 Harrisburg, PA 17108 Attorney for Plaintiff Jennifer C, Deitchman, Esquire 4 Liberty Avenue Carlisle, PA 17013 Arbitrator BOARD OF ARBITRATION L!1. Robert G. Frey, Esquire, Chai ma Jennifer Deitchman, Esquire Tricia D. Naylor, Esquire Prothonotary Bulletin Board Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Darrell C. Dethlefs, Esquire P. O. Box 368 Camp Hill, PA 17001-0368 Attorney for Defendant Tricia D, Naylor, Esquire 104 South Hanover Street Carlisle, PA 17013 Arbitrator ". , ~,. "-" " ~" ~ , FREY & TILEY ATTORNEYS-AT-LAW 5 SOUTH HANOVER S1REET CARLISLE, PENNSYLVANIA 17013 ROBERT M, FREY OF COUNSEL STEPHEN 0, TILEY ROBERT G, FREy' August 3, 2000 TELEPHONE (717) 243-5838 fACSIMILE (717) 243-6441 . ,. Richard S. Friedman, Esquire Friedman & King PC P.O, Box 984 Harrisburg, PA 17108 Darrell C, Dethlefs, Esquire P,O, Box 368 Camp Hill, PA 17001-0368 Re: LCL Income Properties vs, Hoffman Dear Gentlemen: I am writing to advise you that the Arbitration Hearing in the above referenced matter has been scheduled for Tuesday, September 26, 2000 at 9:00 a,m, in the Jury Assembly Room on the 4th Floor of the new Courthouse Annex. Enclosed is a copy of the Notice which has been filed with the Offic<e of the Prothonotary, By copy of this letter I am advising the other members of the Board of Arbitration of the date and time for the Hearing, Sincerely yours, UJ)j~~ Robert G. Frey ~-~ RGF {cam Enclosure cc: Jennifer C. Deitchman, Esquire Tricia Oils Naylor, Esquire <l>'m~_ '" , LCL INCOME PROPERTIES, L.P.II, t1d/b/a BUNKER ASSOCIATES Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. HARVEY HOFFMAN, NO. 2000-395 CIVIL TERM Defendant NOTICE OF HEARING OF BOARD OF ARBITRATORS You are hereby notified that the Board of Arbitrators appointed by the Court in the above-captioned case will sit for the purpose of their appointment on Tuesday, September 26, 2000 at 9:00 A.M., in the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania, 4th Floor Jury Assembly Room, Rear. BOARD OF ARBI 2 rf-o Date: August 3, 2000 Robert G. Frey, Esquire, Chairman Jennifer Oeitchman, Esquire Tricia Oils Naylor, Esquire COPIES TO: Richard Pierce Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Prothonotary Bulletin Board Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Richard S, Friedman, Esquire Friedman & King PC P,O, Box 984 Harrisburg, PA 17108 Attorney for Plaintiff Jennifer C, Deitchman, Esquire 4 Liberty Avenue Carlisle, PA 17013 Arbitrator Darrell C, Dethlefs, Esquire p, O. Box 368 Camp Hill, PA 17001-0368 Attorney for Defendant Tricia Oils Naylor, Esquire 104 South Hanover Street Carlisle, PA 17013 Arbitrator ..- - [ -J-~,"- SEP-~~ 00 09:02 FROM:FRIEOMRN & KING ... . 7172360080 TO: 2436441 PAGE:01 FRIEDMAN & KING. E C. ATTORNE'1'S At' LAw eoo N, SECOND ST, FIFTH FLOOR P,O, Box 884 HARRISBURG, PENNSYLVANIA. 1,\08 (717) 901:1-8000 "fl!:.L.I!:COPI2R N'o_ (717) li:~v'eoao RICRA1lD S. FRIEDMAN' JOBN F. K~NO DATE: ~!zo J FAX w TIME: q (or -(JIP.m. FAX: Richard S. Friedman, Esquire John ~. King, Esquire ........:::. td I IlL, It ~ R- I (717) 236-8000 (717) 236-8080 -R 0 l.3: 2.LI~ r~ {,\ ::.1 K. 4 L/ ( t:~1 . FROM: PHONE: FAX; TO: RE: COMMENTS: Number of pages, not including this cover sheet: ~' Original will not follow I Original will follow by: ma i1 overnight courier ___ hand delivery transmission, call -!~ ( ,v-- If there are problems with this at (717) 236-8000. CONFID~N~IA~ITY NOTICE The dCC\lment.5 accompanying thi:!l facliIimile transmlagion cont.ai.n confi.dent.ial information belonging to th@ s~mdQr whieh is le9A~ly privileged.. The i1'\formation is intended only far the use of ~he individual or entity n~~d Qbove. If you are not the in~~~ded reeipien~, YQ~ a~e hereby no~ified tha~ any diBcloa~.., ~cpyin91 diBtributlo~ or ~h. takin9 of any a~t~on in rQli~nce on the content. of this facsimile J.nfQ~t.ion is st.rictly prohibited. If you have riBceived. th1a teleeopy Ln errc~, pleaee immediately notify us by telephone to arrang~ for retu~n of the or~9inal doouments tg us. ~'.~ oc SEP-20 00 09:02 FROM:FRIEOMAN & KING , w 7172368080 TO: 2436441 PAGE: 02 SEP I :1 zaOlJii" LCL INCOME PROPERTIES, LP, II tldib/a BUNKER ASSOCIATES, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff NO. 2000- 395 CIVIL v, HARVEY HOFFMAN, Defendant QRDER AND NOW, this J :5 +h day of ~- ,2000, upon conSideration of the Defendant's Motion fer a Continuance of the Arbitration sCheduled in this matter for September 26, 2000 is GRANTED, /sjJJMt/ r ~~IJ~J ~obel\~ fTI. Fre~\ t:~. Arb\holio~ c..'hTl\. . -. . ,. , . ~ ~ LcL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW PLAINTIFF'S ADDITIONAL GROUNDS FOR RELIEF A. THE COURT SHOULD ORDER A NEW TRIAL PURSUANT TO PA. R.C.P. 227.l(a)(1) 8. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release dated May 30, 1972 by virtue of Defendant having failed to plead the existence of such Agreement and Release in Defendant's Answer and New Matter in accordance with Order of Court making Rule Absolute filed by Defendant to permit Defendant to amend his defense to plead release, which Order was signed by the learned Trial Judge on February 27, 2002. B. THE COURT SHOULD DIRECT THE ENTRY OF JUDGMENT IN FAVOR OF THE PLAINTIFF, LCL INCOME PROPERTIES, L.P., II, PURSUANT TO PA. R.C.P. 227.l(a) (2) 15. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release dated May 30, 1972 by virtue of Defendant having failed to plead the existence of such Agreement and Release in Defendant's Answer and New Matter in accordance with Order of Court making Rule Absolute filed by - -.~ JiIj~ i - , . .. Defendant to permit Defendant to amend his defense to plead release, which Order was signed by the learned Trial Judge on February 27, 2002. Respectfully submitted, Oat.' ~ 8" ,?tbr FR'EDMAN ~NG' P.C. Richard Si/Friedman, Esquire 600 N. e~ond street Penthouse suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 f/p:pleadings\bhill.add . , - -" .. - .. , ~ LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : v. No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Richard S. Friedman, Esquire, hereby certify that on April 8, 2002, I served a copy of the within Plaintiff's Additional Grounds for Relief, by fax transmission and also by depositing same in the United States Mail, first class, postage prepaid, addressed as follows: Darrell C. Dethlefs, Esquire 3805 Market st. P. O. Box 368 Camp Hill, PA 17001 Court Administrator's Office Cumberland County Court House 1 Courthouse Square Carlisle, PA 17013-3387 The Honorable J. Wesley Oler, Jr. Cumberland County Court House 1 Courthouse square Carlisle, PA 17013-3387 FRIEDMAN J~-'C' /j Richazus. Friedman, Esquire 600 N. second Street Penth use suite P.O. Box 984 Harrisburg, PA 17108 (717) 236-8000 APR-0802 16:10 FROM:FRIEDMAN & KING 7172368080 TO: 2406462 PAGE: 02 LCL INCOM~ PROPERTI~S, L.P. II, t/d/b/a BUNKER A~~OCIAT:ES, TN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : No. 2000-395 civil Term HARVEY HOFFMAN, uerendanL CIVIL ACTION - LAW PLATl':!.T1EF'S ADDITIONAL GROUNDS EOR RELlEE A. THE COURT SHOULD ORDER A NEW TRIAL PURSUANT TO PA. R.C.~. 227. :I,(a) (1) a. The l~arned Trial Judge erred in admitting into ~viden~e ~ certain Agrg~ment And Release dated May 30, 1972 by virtu~ of Defendunt having failed To plead the existence of such Agreement and R~lease in Defendant's Answer and New Matter in accordance with Ord~L of Court moking Rule Absolut~ filed by Defendant to permit De!C!llI.lant to amend hie defens~ to plead release, which Order was slgn~u by the learned Trial ,Judge on February 27, 2002. B. THE COURT SHOULD DIRECT THE ENTRY OF JUDGMENT IN FAVOR OF THE PLAINTIFF, LCL INCOME PROPERTIES, L.P., II, PURSUANT TO PA. R.C.P. 227.1(al (2) 15. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release dated May 30, 1972 by virtue of Defendant having failed to plead the existence of such Agreement and Release in Defendant's Answer and New Matter in accordance with Order of Court making Rule Absolute tiled by APR ~ 9 'ltl ~u02 ~~ .:> APR-0802 16:10 FRoM:FRIEoMAN & KING 7172368080 TO: 2406462 PAGE: 03 DefenQant ~u permit Defendant to ~mend his defense to plead release, which O!:del;' WD.'" cigned by t",he learned Trial Judge on February 21, 2002. Rospectfully AUbmitted, Oat" GrA.O 8)tb'}-- FDUDMAN J.' P.., . Richard jS {!Friedman. Esquire 600 N. ~e~ond Street penthouse suite P. O. tlOX 984 Harrisburg, PA 17108 (717) 236-101000 f/plploadings\bhiJl.add -1..-_" .: APR-0802 16:10 FROM:FRIEDMAN & KING 7172368080 TO: 2406462 PAGE: 04 LCL INCOME PRO~~RTIES, L.P. II, tjd/b/a BUNKER ASSOCIATES, IN TilE counT OF COMMON PLEAS CUMBERLAND COUNT~. PENNS~LVANIA Plaintiff v. No. 2000-395 civil ~erm HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW CERTIFICA~E OF SERVICE I. Ri.,..,hilrd S. Friedman, Esquire, hereby certify that on hpril 8, 2002, I ~~rvp.n a copy of the within plaintiff's AdditionQl crounds for ReliQf, hy fax transmission and also by depositing same in the united States M~il, first class. postage prepQid, addressed as followo: Oarrell C. Dethlefs, Esquire :;80~ Market flt. P. O. Box 368 camp HLll, FA 17001 Court Administrator's O'[l~~ Cumberland county Court House 1 Courthouse square Carlisle, PA 17013-3387 The Honorable J. Wesley Oler, Jr. cumberland County Court House 1 Courthouse square Carlisle, PA 17013-3387 FR'EDMAN ~.c. 1// RiChaZJ~. Friedman, Esquire 600 N. Second Street Penth use suite P. O. Box 984 HQrri~burg, Ph 17108 (7l7) 236-8000 '"" I' '4'- APR-0802 16:12 FROM:FRIEOMAN & KING 7172368080 TO: 2406462 PAGE: 01 FRIEDMA.N & KING. P. C. A~"T08N1!:1l'S lIS LAW tlUU N, SECONXI ST, FIPTH FLOOS. P.O, Box 084 S::AnaISDURG. PENN'$'Y'LVAN'tA. t71nA {7t7) 206",.,000 TZLZ!:OO'f''f''E'R No. (717) :Baa-9080 RICBAB'J:t s. FRIED~ JOHN F. :R'..,wn. FAX FROM: ~I~d- iCha~d S. Friedman, Esquire ---- John F. King, Esquire TIME: ")'(0 a-o....lG. OAT'E: PHONE: (717) 236-13000 FAX: FAX: (717) 236-13090 ':1.~ ~ 9 ,lJL,e~ ()J!..-7 9r if'(lJ --?&~ ()- TO: RE: COHMENTS: Number of pages, not including this cover sheet: ~J _ / Original wi.ll V original will !l.!:l!: tollOW follow by: ~ --- overnight courier --- hand delivery transmission, call ~~ ., If there are problems with this ~t (717) '-36-8000. CONF~DENTIALITY ~TJC~ Th.. documents accoMpanying this facsimiLe transmission contain confidential information belonging to the senaer which is legaHy privi1egea. Tne info.......tion is intended only for the use of the individual or entity named above. If you are not the intended E'.~ip.tent:.r YOl"l :a~o hez;"cby no't.ified. that any di."clOGurCi. copying. distribution or the taking of any action in re1iance on the contents of this fRc..i...ile information is strictly prohibited. If you have received thi.e telecopy in error, please immediately notify us by telephone to ar..ange for return of the original docu.....nts to us. - ~ t__I_----~ __ _; ;" ,',_.", ~ ", APR-08 02 16:12 FROM:FRIEDMAN & KING 7172368080 TO: 2406462 PAGE: 02 FRIEDMAN & KING. P. C. ATTORNEYS Ja L1IW 600 N, SECOND ST, FIF1'H FLOOR r.o. Box E>e~ HARRISBURG, PENNSYLVANIA 17108 (717) 2:)0-&000 nLIlC'OPll!:lit No. (7(7) 2.38-&080 RIClIAan :So b"RIEDM.Alf JOHN F. K",o April 8, 2002 FAX TRANSHISS~ON and FOLLOW UP COpy BY HAIL Cumberland county Prothonotary Cumberland County Court House 1 Courthouse Square Carlisle, PA l7013-33B7 In re: LCL Income Properties, L.P. II, tJdJbJa Bunker Associates v. Harvey Hoffman No. 2000-395 Civil Term Dear sir or m~nnm~ Enclos~d hp.rewith for filing please find an oriqinal and a copy of Plaintiff's Additional Grounds for Relief. After filing, please return the copy in the enclosed envelope. Thank you. VeLY truly yours, Rluh~~~ s. F~iedman RSFJbp:corresaf\cumbc02.1tr Enclosures cc: ;?ll'ot Leibowitz D rell C. Dethlefs, Esquire (by fax trans. and mail) e Honorable 3. Wesley aler, Jr. (by fax trans. and mail) Court Administrator's office (by fax trans. and mail) ~~ I~ _" _0<' , ., APR-0802 16:12 FROM:FRIEDMAN & KING 7172368080 TO: 2406462 PAGE: 03 LCL INCOME PROPERTXC5, L.P. II, t/d/b/a BUNKER AS!:lOeJ.ATES, XN THE C::OIIRT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA plaintiff v. : No. 2000-395 civil Term HARVEY HOFFMAN, Detendant CIVIL ACTION - LAW : PT,AlNTJFF'S ADDITJONAL GROUNDS FOR RELIEF A. THE COURT SHOULD ORDER A NEW TRIAL PURSUANT TO PA. R.C.P. 227.1(01)(1) 8. The learned Trial ~udg@ .rrp.rl in admitting into evidence 0 ~~rtain Agreement and Re19ase dated MHY ~O. 1972 by virtue of DefendollL having failed to plead the e)(istence of sllC'!h Agreement and He1ease in O",C..ndant's Answer and New Matter in accordance with Order of c.;ourt maldu',j Rule Abso1u-r.e filed by Defendant to permit Defendant to amend hi.. tl..r..nse to plead release, which Order was signed ~y the learned Triol Judge on February 27, 2002. B. THE COURT SHOULD DIRECT THE ENTRY OF JUDGMENT IN fAVOR OF THE PLAINTIFF, LCL INCOME PROPERTIES, L.P., II, PURSUANT TO P2\.. R.C.P. 227.1(a) (2) 15. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release dated May 30, 1972 by virtue of Defendant having failed to plead the existence of such Agreement and Release 1n Defendant's Answer and New Matter in accordance with Order of Court making Rule Absolute filed by , " I~ ~ ~.';"''''',~'i RPR-0802 16:12 FRoM:FRIEoMRN & KING 7172368080 TO: 2406462 PRGE:04 Defendant to pel:'luit Defendant to amend his np.fense to plead release, which Order was signed by the learned Trial Judqe on February 27, 2UU~. Respectfully ~ubmitted, D".'~ ~,Jba- FRIEDMAN j;l{ NG, 1'. C. '" r I Richa~d/S;/Friedman, Esquire 600 N. pe~ond ~t~eet Penthouse Suite P. O. Box 964 Harrisbu~g, PA 17108 (717) 236-8000 f/p:p1eadings\hhill.add . I rnJI~WI~, RPR-08 02 16:12 FROM:FRIEDMRN & KING 7172368080 TO: 2406462 PRGE:05 LCL INCOME PHO~~RTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON rLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW CERTIFICA~E OF SERVICE I, Ri~hard S. Friedman. Esquire, hereby certify that on Ap~il B, 2002, I ~prvRd a copy of the within Plaintiff's Additional Grounds for Reli~f, hy fax transmission and also by depositing sQffiC in the United States Mail, fir~t ~la55. postage pr~palu, addressed aa followa: Darrell C. Dethlefs, Esquire JS05 Market St. P. O. Box 368 camp Hill, PA 17001 court Administrator's o"l~~ Cumberland county Court House 1 courthouse square carlisle, PA l7013-3387 The Honorable J. Wesley Oler, Jr. Cumberland County Court House 1 Courthouse Square CarliSle, PA l70l3-3387 FRIEDMAN &~NG, F..C. J RiChaZ!~, Friedman, 600 N. Second Street Pcnth uSe Suite P. O. BOX 984 Harrisburg, rA 17108 (717) 236-8000 Esquire: ..-.-1 "~" ~ APR-B8 B2 16, 1B FROM'FRlIOOMAt~ S, Klt~Gl 7172:36814814 TO'24B6462 PAGE: 141 !o'H..lJia:>:1lIf' A N Be KING. P. C. ATTODN'nl.VG AT 4w eoo N. S~U.NP ST. FIl"TK !,'LOO'tl' P.O. :BOx Uti4 HADnWBt,l'J:l.U, P;eNN!:ii'YLVAI'I):,A. 1710e (71.7) sa!:,nh&ilOOU T"'.......a.......H N.. (7.7' 'R.(,\6.~ RTr:.".....Rn S. F'I'I:n:,:DJoI:&N JQ&I'I F, K..r.b1u. FAX FROM:: (J...~.:J..j() :.r~);:r TIME: -:" (,.--"'"'R.J.c;hard. S.. Fk: iQ..J.ll\an. ESq'Qi:l:"Er! -- John F. X!uy, 2squire <,-'(0 . -a-:.~P. DATE:: FAX: (717) 236-8000 (717) 336-8080 '-I{;L t~~ 9'~~ (j.b-'7 9r ~ 'fI').-,yc,-g - PHONE: ~O; FAX: RE; COMMENTS: -' / l/ Origina1 wi11 ~ fo11ow ---4-" , Nu.mber of pages., not incl14dln9 Lhll::;i cuver E'oheet: Orit;Jina1 wi11 '---'ll\lir( === overniqht eou~i~r _ ho.ntl t1e11ve...y with thic trancmiE:cion, co.ll L~.. fo11ow by: Xf there arc prob1cmc ~t (717) 336-8000. CONFXDENTXALXTY NO~~~E "I'hlP ...nt;!i!tYl.-=-n...A ~.?...n(fol""'r"1y'i 1'\1) f-hlA f~t;'",,1.ffiile L...aU~1.tli~=:Ii.ul'1. c.:unt:.lILLIl c:unf.l.dc,ln1;..i.al. l.n:eQ~_~J.gn belong1.ng to t:he sender wh1.ch 1.8 l.ega.l.l.y P~lV11.C9Cd.. 'l'hc i.nf'ormi1ti.att i.o in~ended ot'u.y .tar 1:he use or ~he i.ncli.vi.d.ua-~ Or ent:it.y "-"Im.....L'i ....hnv"""_ Tof yn_1 Cl.L'~ nnt: the 1.IIL~I1.I.llil:::i',.l .E:lI:O"o,;.-lJ,J1."='IIL, y01..1 Cl.Lo:.o h.;.r.liI:::i'uy nuL.i.l'.i.lllllu t:.h...t:. io4nv dJ.liiIl1:l'loBI,,1~e. lI:l'opy1.ng, dL8~r1.bu~1.Dn o~ the ~ak1.n9 at any ac~~on Lft ~a+~QnCC Cn the con~Bn~D or ~hift taca.i.m1.1e .t..-"f-orlYlat:.i.on i.a atr-.t.et:.ly prOhi.bit:.ed.. Tf' yc:nt have reee1.ved LtlJ.a Lelwe~py in W~~Q~, p.~ag8 Lmm8d1a~ely no~Lfy ~1iiI by ~elephone ~o ar~~ngc eor return ot ~he ori.oin~~ docum~n~a 1:0 us. --........................- cc; Ell,j,ut Leil:>owitz D~~Y~~ c. Oethi.fR. ~squirc 1,..)1'11"", KQl"Iorabl.e .:r. We.s1~y 01.or, Cu~~t AdminisT~A~nr'a office (by fax LL'd.Jl;.,l. -.nd. 1'1'Lai.l.) . Jr. (by r.~ trans. and 'm~l.J) (by rax t~~ns_ and mail) ~~ L ,,-' . LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW PLAINTIFF, LCL INCOME PROPERTIES, L.P., II, MOTION FOR POST-TRIAL RELIEF Plaintiff, LCL Income Properties, L.P., II, hereinafter referred to as "LCL", now moves this Court for Post-Trial Relief under Pa. R.C.P. 227.1, and, in particular, asks the Court to vacate its Adjudication of February 28, 2002 and to Order a new trial as to all issues. In the alternative, LCL asks that the Court now evaluate the various factors it has omitted from its consideration, and that it then direct the entry of judgment in favor of the Plaintiff and against the Defendant by: a. Entering a judgment for the Plaintiff and against the Defendant, notwithstanding the Court's February 28, 2002 verdict; and b. Bringing the Adjudication, both in form and in substance, into conformity with Pennsylvania law. I M . Po THE COURT SHOULD ORDER A NEW TRIAL PURSUANT TO PA. R.C.P. 227.1(a) (1) The reasons advanced in support of this relief are: 1. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release having been objected to by LCL legal counsel as hearsay evidence. 2. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, and not being binding on successors in title by its very terms. 3. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Release by its very terms was limited to claims "from the beginning of the world to the date of these presents", that being May 30, 1972. 4. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Defendant could not have relied on the Release because, as presented at trial, the Defendant did not know of its existence at the time he purchased the property at issue at trial. 5. The Trial Court's verdict is against the weight of the evidence. ~~ " - 6. The Trial Court's verdict is not supported by substantial evidence. 7. The verdict is, in form and substance, inconsistent with the law of the Commonwealth of Pennsylvania. :!! THE COURT SHOULD DIRECT THE ENTRY OF JUDGMENT IN FAVOR OF THE PLAINTIFF, LCL INCOME PROPERTIES, L.P., II, PURSUANT TO PA. R.C.P. 227.1(a)(2) The reasons advanced in support of this relief are: 8. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release having been objected to by LCL legal counsel as hearsay evidence. 9. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, and not being binding on successors in title by its very terms. 10. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Release by its very terms was limited to claims "from the beginning of the world to the date of these presents", that being May 30, 1972. o ~ '- L ~ ~ 11. The learned Trial Judge erred in admitting into evidence a certain Agreement and Release, dated May 30, 1972, said Agreement and Release being irrelevant and immaterial, since the Defendant could not, have relied on the Release because, as presented at trial, the Defendant did not know of its existence at the time he purchased the property at issue at trial. 12. The Trial Court's verdict is against the weight of the evidence. 13. The Trial Court's verdict is not supported by substantial evidence. 14. The verdict is, in form and substance, inconsistent with the law of the Commonwealth of Pennsylvania. g RESERVATION OF RIGHT TO SPECIFY ADDITIONAL ERRORS AND GROUNDS FOR RELIEF 15. LCL further assigns as error and as grounds for modifying the judgment, or in the alternative, for the granting of a new trial, each of the matters offered by the Petitioner during trial and refused by the Trial Court, in each objection made by the Petitioner during trial and overruled by the Trial Court, and hereby incorporates into this Motion by reference, such points in the trial record. 16. The moving party, LCL, reserves the right, and hereby moves the Court for leave, to supplement this Motion with additional grounds appearing on the transcript of trial. -= "-. -I . -r;,; 17. Each of the foregoing points was raised by the Petitioner prior to trial, as the evidence in question arose at the trial, and/or by other appropriate method at trial. ~ TRANSCRIPTION OF RECORD 18. LCL hereby requests, pursuant to Pa. R.C.P. 227.3 and Pennsylvania Rule of Judicial Administration 5000.5(b), that a transcript of all of the testimony at trial be transcribed in order to enable the Court to dispose of this Motion. WHEREFORE, the Moving Party/Plaintiff, LCL Income Properties, L.P., II, moves the Court: 1. To vacate its verdict and order a new trial; or in the alternative; 2. To alter and modify the Adjudication of February 28, 2002 in form and in substance to reflect the matters and points set forth above; and 3. To enter judgment for Plaintiff, LCL, and against the Defendant; and > I""""",~ -. ~-; , 4. To grant such other and further Post-Trial Relief as may seem just and proper. Date: 'fIIO/Lr it ~ ~ submitted, NG, P.C. Richar Esquire 600 N. S cond street Penth use suite P.O. Box 984 Harrisburg, PA 17108 (717) 236-8000 fjp:pleadings\bhill.mot , . " LCL INCOME PROPERTIES, L.P. II, t/d/b/a BUNKER ASSOCIATES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 2000-395 civil Term HARVEY HOFFMAN, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Richard S. Friedman, Esquire, hereby certify that on March 7, 2002, I served a copy of the within Plaintiff, LCL Income properties, L.P., II, Motion For Post-Trial Relief, by depositing same in the united States Mail, first class, postage prepaid, addressed as follows: Darrell C. Dethlefs, Esquire 3805 Market st. P. O. Box 368 Camp Hill, PA 17001 The Honorable J. Wesley Oler, Jr. Cumberland County Court House 1 Courthouse Square Carlisle, PA 17013-3387 FRIEDMAN & K Richard . Friedman, Esquire 600 N. econd Street Penthou e suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 - ~ t'~-, FRIEDMAN & KING. P. C. ATTORNEYS XX LAW 600 N, SECOND ST, FIFTH FLOOR p.o, Box 984 HARRISBURG, PENNSYLVANIA 17108 (717) 236-8000 TELECOPIER No. (717) 2S6-80eo RICHARD S. FRIEDMAN JOHN F. KING March 7, 2002 Cumberland County Court House ATTN: Wendy Yinger, Court Reporter Court Reporter's Office 1 Courthouse Square Carlisle, PA 17013-3387 In re: LCL Income Properties, L.P. II, tjdjbja Bunker Associates v. Harvey Hoffman No. 2000-395 civil Term Dear Ms. Yinger: Please find enclosed a Motion for Post-Trial Relief filed on behalf of the Plaintiff, which contains a request for a transcript of the proceedings in the above-referenced matter. Thank you. Very truly yours, Richard S. Friedman RSFjbp:corresaf\cumbrepo.ltr Enclosure cc: Elliot Leibowitz Darrell C. Dethlefs, Esquire ~ The Honorable J. Wesley Oler, Jr. ~ ' Cumberland County Prothonotary Cumberland county Court Administrator David A. Szewczak, Prothonotary of the Superior Court , of Pennsylvania " "" '~,-~" - ,,~, ~~>. ~,.., ""'Cf-' ,~- """_'~-'"",~_O~-""_'~--"'--'-'r'..-,,,. . -,-~ ','-",,_ ,,,,',, ,--,,-,-,';~;";:1J FRIEDMAN & KING. P. C. ATTORNEYS Kr LAW 600 N. SECOND ST, FIFTH FLOOR p.o, Box 984 HARRISBURG, PENNSYLVANIA 17108 (717) 236-6000 TELECOPIER No. (717) 236~6080 RICHARD S. FRIEDMAN JOHN F. KING March 7, 2002 Cumberland County Court House ATTN: Wendy Yinger, Court Reporter Court Reporter's Office 1 Courthouse Square Carlisle, PA 17013-3387 In re: LCL Income Properties, L.P. II, t/d/b/a Bunker Associates v. Harvey Hoffman No. 2000-395 civil Term Dear Ms. Yinger: Please find enclosed a Motion for Post-Trial Relief filed on behalf of the Plaintiff, which contains a request for a transcript of the proceedings in the above-referenced matter. Thank you. RSF/bp:corresaf\cumbrepo.ltr yours Enclosure cc: Elliot Leibowitz Darrell C. Dethlefs, Esquire The Honorable J. Wesley Oler, Jr. Cumberland County Prothonotary Cumberland County Court Administrator David A. Szewczak, Prothonotary of the Superior Court of Pennsylvania 10 ';'~lliit:;1 FRIEDMAN & KING. P. C. ATTORNEYS AX LAW 600 N. SECOND ST. FIFTH FLOOR P.O. Box 984 HARRISBURG. PENNSYLVANIA 17108 (717) 23e~8000 TELECOPIER No. (717) 236-8060 RICHARD S. FRIEDMAN JOHN F. KING March 19, 2002 Darrell C. Dethlefs, 3805 Market st. P. O. Box 368 Camp Hill, PA 17001 Esquire In reo LCL Income Properties, L.P. II, t/d/b/a Bunker Associates v. Harvey Hoffman No. 2000-395 Civil Term Dear Darrell: As you are aware, this office filed a Motion for Post- Trial Relief in the above-captioned matter. In order to properly pursue this Motion, kindly file your Amended Answer within the time prescribed by Rules of Court. Very truly yours, Richard S. Friedman RSF/bp:corresaf\dethlefs.ltr cc: Elliot Leibowitz / The Honorable J. Wesley Oler, Jr. ~ MAR 2 0 2002 ~ . ,_ ~,o " - -,..,' >~ -.-'--1"""-"" --''''''''J APR 0 9 2002 FRIEDMAN & KING. P. C. ATTORNEYS XI: LAW 600 N, SECOND ST, FIFTH FLOOR P,O. Box 984 HARRISBURG, PENNSYLVANIA 17108 (717) 236-6000 TELECOPIER No. (717) 236-6080 RICHARD S. FRIEDMAN JOHN F. KING April 8, 2002 Court Administrator's Office Cumberland County Court House 1 Courthouse Square Carlisle, PA 17013-3387 In re: LCL Income Properties, L.P. II, t/d/b/a Bunker Associates v. Harvey Hoffman No. 2000-395 civil Term Dear sir or madam: Enclosed herewith for filing please find an original and two (2) copies of Plaintiff's Brief in Support of its Motion for Post-Trial Relief. After filing, please forward one copy to Judge Oler, and return the other copy to this office in the enclosed envelope. RSF/bp:corresaf\cumbadm.ltr ours, . Friedman Enclosures cc: Elliot Leibowitz Darrell C. Dethlefs, Esquire "' , J'iio FRIEDMAN & KING. Pc. ATTORNEYS AT LAW 600 N. SECOND ST, FIFTH FLOOR P,O, Box 984 HARRISBURG. PENNSYLVANIA 1710B (717) 236~eaoo TELECOPIER No. (717) 236~eoeo RICHARD S. FRIEDMAN JOHN F. KING April 8, 2002 FAX TRANSMISSION and FOLLOW UP COPY BY MAIL Cumberland County Prothonotary Cumberland County Court House 1 Courthouse Square Carlisle, PA 17013-3387 In re: LCL Income Properties, L.P. II, t/d/b/a Bunker Associates v. Harvey Hoffman No. 2000-395 civil Term Dear sir or madam: Enclosed herewith for filing please find an original and a copy of Plaintiff's Additional Grounds for Relief. After filing, please return the copy in the enclosed envelope. Thank yOu. Very truly yours, Richard S. Friedman RSF/bp:corresaf\cumbco2.ltr Enclosures cc: ~ll'ot Leibowitz D rell C. Dethlefs, Esquire (by fax trans. and mail) , e Honorable J. Wesley Oler, Jr. (by fax trans. and mail) Court Administrator's office (by fax trans. and mail) 4PII... !J ~O< - ". I ~ u." MAR 0 8 200ZW FRIEDMAN & KING. P. C. ATTORNEYS Kr LAW 600 N. SECOND ST. FIFTH FLOOR p.o, Box 984 HARRISBURG, PENNSYLVANIA 17108 (717) 23e~8000 TELECOPIER No. (717) 236-6080 RICHARD S. FRIEDMAN JOHN F. KING March 7, 2002 Cumberland County Court House ATTN: Wendy Yinger, Court Reporter Court Reporter's Office 1 Courthouse Square carlisle, PA 17013-3387 In re: LCL Income Properties, L.P. II, tjdjbja Bunker Associates v. Harvey Hoffman No. 2000-395 civil Term Dear Ms. Yinger: Please find enclosed a Motion for Post-Trial Relief filed on behalf of the Plaintiff, which contains a request for a transcript of the proceedings in the above-referenced matter. Thank you. Very truly yours, Richard S. Friedman RSFjbp:corresaf\cumbrepo.ltr Enclosure cc: Elliot Leibowitz Darrell C. Dethlefs, Esquire The Honorable J. Wesley Oler, Jr. / Cumberland County Prothonotary Cumberland county Court Administrator David A. Szewczak, Prothonotary of the Superior Court of Pennsylvania ........... '" 1'" .. " 9 200L) FRIEDMAN & KING, P. C. ATTORNEYS AT LAW 600 N, SECOND ST, FIFTH FLOOR p.o, Box 984 HARRISBURG, PENNSYLVANIA 17108 (717) 236-8000 TELECOPIEB No. (717) 236-8080 RICHARD S. FRIEDMAN JOHN F. KING April 8, 2002 FAX TRANSMISSION and FOLLOW UP COPY BY MAIL Cumberland County Prothonotary Cumberland County Court House 1 Courthouse Square Carlisle, PA 17013-3387 In re: LCL Income Properties, L.P. II, t/d/b/a Bunker Associates v. Harvey Hoffman No. 2000-395 civil Term Dear sir or madam: Enclosed herewith for filing please find an original and a copy of Plaintiff's Additional Grounds for Relief. After filing, please return the copy in the enclosed envelope. Thank you. Very truly yours, Richard S. Friedman RSF/bp:corresaf\cumbco2.1tr Enclosures cc: Elliot Leibowitz ~ar 11 C. Dethlefs, Esquire (by fax trans. and mail) e Honorable J. Wesley Oler, Jr. (by fax trans. and mail) Court Administrator's office (by fax trans. and mail) ~-"~ ~ 10:32 A.M. .... Appeal Docket Sheet Docket Number: 972 MDA 2002 Page 1 of3 June 20, 2002 .1.. ,_, "n:~> no- 3qa Superior Court of Pennsylvania - LCL Income Properties, L.P, II, d.b.a. Bunker Associates, Appellant v. Harvey Hoffman Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: June 20, 2002 Journal Number: Case Category: Civil Awaiting Original Record CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: Next Event Type: Docketing Statement Received Next Event Type: Original Record Received 6120102 SCHEDULED EVENT Next Event Due Date: July 5, 2002 Next Event Due D 3Q23 - _...~~--.. ." ~w 10:32 A.M, I' " .... Appeal Docket Sheet Docket Number: 972 MDA 2002 Page 2 of 3 June 20, 2002 Superior Court of Pennsylvania - Appellant ProSe: IFP Status: Appellee ProSe: IFP Status: COUNSEL INFORMATION LCL Income Properties, LP, II, d.b,a, Bunker Associates Appoint Counsel Status: No Appellant Attorney Information: Attorney: King, John F, Bar No,: 61919 Law Firm: Address: 600 N, Second Street, Penthouse Suite P,O, Box 984 Harrisburg, PA 17108 Phone No,: (717)236-8000 Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No Hoffman, Harvey Appoint Counsel Status: Appellee Attorney Information: Attorney: Dethlefs ,Darrell C, Bar No.: 58805 Law Firm: Address: 3805 Market Street P,O. Box 368 Camp Hill, PA 17001 Phone No,: (717)975-9446 Fax No,: Receive Mail: Yes E-Mail Address: Receive E-Mail: No FEE INFORMATION, Fee Date 6/19/02 Fee Name Notice of Appeal Fee Amt 55.00 Paid Amount 55,00 Receipt Number 2002SPRMD000569 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Date of Order Appealed From: May 17, 2002 Date Documents Received: June 19, 2002 Order Type: Order Entered Judge: Division: Civil Judicial District: 9 Date Notice of Appeal Filed: June 17, 2002 OTN: Oler, Jr" J, Wesley Judge Lower Court Docket No,: 2000-395 6/20/02 ORIGINAL RECORD CONTENTS 3023 ~""'''''''''''''.Pi,' - "~.." . ~ ~.~,! 10:32 A.M. . ... Appeal Docket Sheet Docket Number: 972 MDA 2002 Page 3 of 3 June 20, 2002 Superior Court of Pennsylvania - Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS Filed Date DOCKET ENTRIES Docket Entry/Document Name Party Type Notice of Appeal Filed Filed By June 20, 2002 Appellant LCL Income Properties, LP, II, d.b.a. Bunker Associates June 2(), 2002 Docketing Statement Exited (Civil) Middle District Filing Office 6120102 3023